Memorial submitted by the Government of Ethiopia

INTERNATIONAL COURTOF JUSTICE

PLEADINGS,ORAL ARGUMENTS,DOCUMENTS

SOUTH WEST AFRICA CASES
(ETHIOPIAv.SOUTH AFRICA;

LIBERIA v.SOUTH AFRICA)

VOLUME 1

COUR INTERNATIONALDE JUSTICE

MÉMOIRES,PLAEDOIRIESETDOCUMENTS

AFFAIRESDU SUD-OUEST AFRICAIN

(ÉTHIOPIc.AFRIQUE DU SUD;
LIBÉRIA c.AFRIQUE DU SUD)

VOLUME 132 SOUTH WEST AFRICA

1. MEMORTAL SUBMITTED BY THE GOVERNMENT
OF ETmOPIA

STATEMENT OF THE CASE

A. This Mernorial is submitted tothe Court pursuantto an Order
of the Court issued under the date of January 13, 1961 ,ollowing
upon the Application subrnitted to the Court on behalf of the
Government of Ethiopja (hereinafter sornetimes referred to as
"Applicant"), on November 4, 1960, to institute proceedings
against the Governrnent of tEieUnion of South Africa (hereinafter
sometimes refersed toas the "Union") for causes çtatetherein.

B. The dispute between Ethiopia and the Union, to which this
Mernorial is addressed, relates to the interpretatioand applica-
tion of the Mandate for South West Africa. The subject of the
dispute concerns the continued existence of the Mandate for
South West Africaand the duties and performance of the Union,
as Mandatory, thereunder. Ethiopia insists that the Mandate 1s
çtillinforce; that the Urzion continues tc have duties thereiinder;
that the United Natiws is the proper supervisory organ to which
annual reports and petitions should be submitted by the Union,
and whoçe consent is a legalprerequisite and condition prece-
dent to modification of the terms of the Mandate; and that
the Union has violated and is violating Article22 of the Cov-
enant of the League of Nations and Articles2,4, 6, and 7ofthe
Mandate.
The Union disputes, and has disputeci the abave contentions,
and such dispute has not been, and çannot be settlby negotiation. II

HISTORY ANY BACKGROUND OF THE DISPUTE

The Allied and Associated Powers at Versailles in 1918 were con-

cerned with the disposition of the former Germrin overseas colonies,
whose people were regarded at that time as being unable to stand
by thernseIves. Reçtoration of the slatus quo ccrtleor irnmediate grant
of independence were considered unacceptable solutions. Beyond
this, there was little agreement among the Allicd and Associated

Powers. Pursuant to Articles T 18 and xrg of the Treaty of Versailles ',
Germany undertook to renounce completely her overseas possessions
in favor of the Principal Allied and Associatecl Powers. Secret
agreements had been exchanged anlong Great Britain, Francc and
Japan pnar to the signing of the armistice, rnutually acknowledging

so-called "special interests" in particular areas of the Gerrnan
empire. Thus, France was to be perrnitted to anncx part of thc
Carneroonç and Togo; three British dominions interested were to
have thc right to annex, respectively, Gerrnan South West Africa
(hereinafter sometirnes referred to as the "Territory"), New Guinea,

and German Samoa. On the other hand the Ahcs had publicly
announced opposition to territorial annexation as s legtimate end
of victory. Spokeçmen both at Versailles and clsewhere expressed
the opinion that some form of international administration of the
conquered lands çhould be established under the aegiçof the League

of Nations to be formed. The Mandate Systern, as ultirnately
given expression in Article 22 of the Covenant of the League of
Nations and in the several Mandate Agrcementç, represented a
victory for the opponents of the ptinciple of annexation. Eirst

"ArticleIrH.In territorriutsidehcrEurupean frontiersa.s fixed 'the present
'I'reatyGermany reriuunccral1rights,titles and privilegcwhatever in or over
territory which lielongctcilier oto hcralliesand al1 rightstities and privilegcs
whatevcr their origin whichshe Iield aagainstt11eAllied and Associated Powcrs.
"Gcrmany hcreby undertakestnrcçognize and tocorifurm to the measures which
may be taken now or in the futurc by theI'rincipal Allied and Associated Powers,
in agreement where necessary with third I'uwers, in order ta carry theabove
sti~~ulatioiiitaeffect.
"ln particular Gerrnany declares hcr ücce~itaof the following articles relating
to certain special subjects.'"
"ArticleI19.C;er~nanyrcnr)unces ifavourof thcI'rincipal .\lland Associatcd
Powers al1her rights and titles over hover5cü.ipuiscssions."34 SOUTH WEST AFRICR

priority was accorded to the wll-being of the people concerned,
rather than to the speciai interests of the victarious Powers. The
mandated territories were in each case to be administered on behalf
of the League of Nations by individual mandatory powers, in
accordance with allocations made by the Principal Allied and Asço-
ciated Powers. The mandatories were to promote to the utrnost the
material and moral well-being and social progress ofthe inhabitantç.
They were, moreover, to account for their actions both to the

Council of the League and to individual League Mernbers. The
latter were to be given the ultimate right toseek judicial recoursein
the event ofa dispute concerning the mandate, ifsuch dispute could
not be settled by negotiation.
hlarshal Jan Christian Smuts took a leading part in conceiving
the framework for the Mandate Syçtem. In his The League of
Nations, A Practical Suggestion (London, zgr8),l he advanced the
notion (referring to the peoples and territories formerly belonging to
Russin, Austria-Hungary and Turkey) that the League of Nations

"should be considcred as the reversionary in the most genera1
senseand as clothedwitk the right of ultimnte disposa1in accordance
with certain fundamental principles, Reversion to the league of
nations should be substituted for any policy of national annexa
tion." a

Marshal Smuts further expressed the view:
"Thedelegation of certainpowersto themandatary [sicstate must
not, howevcr,be lookedupon as in any way impairing the ultimate
authorityand controlof the Ieague,or asconferringonthe mandatary
[sic] general powers of interferenceover the affairsofthe territory
affected. For this purpose iis important that in each such case of
mandate the leape should issue a special act or charter, clearly
settingforth thpolicy which themandatary [sic] wiil haveto follow
in that territory.This policy must necessarily vary from case to
case, according to the developrnent,administrative or police ca-
pacity, and homogeneouçchaxacter of the people concerned. The
mandatary [sic] statshould look upon its position as agreat trust
and honour,not asan officeofprofitorapositionof private advantage
for it oritsnationais. And in case of any flagrant and pr010nged
abuse of this trust the population concerned should be able to
appeal forredresçto the Ieague, who should in a progercase assert
its authority to the full,even to the extent of removing the mandate,
and entruçting to some other state,if necessas.."

z. ~heCoua*tan tf theLcagw of Nations
Article 22 ofthe Covenant in its finalfom extended this concept
of League control to the Geman tenitories. The text of
Article 22 of the Covenant ishere set forth in full:

l Reprinted in II MilleTlieDvn/!zngoftheÇwpnant, Document 5. at23-60.
riJd.at 27.
Id. at32. RIEMORIALOF ETHIOPIA 35

"Article 22.
"1. To those colonies and territories which as a coi-isequcnceof
the late war have ceased to be under the sovereignty of the States
which formerly governed them and which are inhabited by peoples
not yet able to stand by thernselves under the strenuoiis conditions
of the modem world, there should be applied the principle that the
civilization and that securities for the performance of this trust
should be embodied in this Covcnant.

"2. The best rnethod of giving practical effect to this principle is
that the tutelagc of such peoples should be entrusted to advanced
nations who by rcason of their rcsources, thcir expericnce or their
geographical positioncan best undertake this rcsponsibility, and who
are willing toaccept it, and that this tutelage shoiild bc exerciscd by
them as Mandatories on behalf of the Leagile.
"3. The character of the mandate rnust diffcr according to the
stage of the development of the people, the geographical situation of
thc tcrritory, its economic conditions and othcr similar circumstan-
ces.

"4. Certain cornrnunities formerly belonging to thc Turkish
as independent nationsstagcan bc provisionally recognized subject
to the rendering of administrative advice and assistance hy a Man-
datory until such time as they are able to stand alonc. The wishes
of these communities n-iustbe a principal consideration in the selcc-
tion of the Mandatory.

"5. Other peoples, especially thosc of Central Africa are at such
a stage that thc Mandatory rnust be responsible for the administra-
tion of the territory undcr conditions which will giiarantee freedom
order and morals, thc prohibition of abuses such as the slave trade .
the arms traffic and the liquor traffic, and the prevention of the
establishment of fortifications or military and naval bases and of
military training of the natives for other than police purposes and
the defense of territory, and will also secure cqual opportunities for
the trade and commercc of other Rlembcrsof thc League.

of the South Pxific Islands, which, owing to the sparseness of tlieir
population, or their small size, or their rcmoteness from the centres
of civilization, or their geographical contiguity to the territory of
the Mandatory, and other circumstances, can be best administered
under the laws of the Mandatory as integral portions of its territory,
subject to the safeguards abovc mentioned in the interests of the
indigenous population.
"7. In every case of mandate, the Mandatory shall render to the
Council an annual report in reference to the territory committed to
its charge.

"8. The degree of autliority, control, or administration to be
exercised by the Mandatory shall, if not previously agreed upon by36 SOUTH WEST AFHICA
the Membersof the League,be explicitly definedin each case by the
Council.
"9. A permanent Commissionshall be constitutcd to receive and
examine the annual reports of the inandatories and to advise the
Councilon al1matters relating to the observanceof the mandates."

The concept of "sacred trust," or tutelage of peoples not yet able
to govern themselves is, of course, analogous to the traditional
doctrines of trust or tutelle in municipal law. Extension of these
doctrines to international practice and principle reflected a matur-
ing sense of international responsibility for the dignity and well-
being of the individual person. In the case of Mandates, the prin-

ciple of "sacred trust" succeeded to the doctrine of rights of con-
quest over territory. The legal rights of Ilandatories in the terri-
tory for which they assumed responsibility were limited to and
defined in the terms of thetrust which was conferred by the League.
The League had a legai interest in the administration, as did each
member of the League. The League's interest was to be exercised
through administrative supervision. The legal interests of the
hlembers of the League in the Mandatory's compliance with its
duties were to be protected by the right to invoke the compulsory
jurisdiction of the Permanent Court of International Justice. This
aspect of control and supervision made the ideal of "sacred trust"
a living and enforceable reality, rather than a mere pretension.

The Mandate for South West Africa kvasallocated by the Principal
Ailied and Associated Powers to the Union of South Africa on
May 5, 1919. A draft mandate was prepared by the British govern-
ment, conferring the Mandate upon liis Britannic Majeçty on behalf
of the Union Government. The Mandate was submitted to the
Council of the League on December 14, 1920 and was confirmed by
the Council on December 17. The Mandate belonged to the cate-
gory of "C" Mandates, viz., those applying tothe least economically
and politically developed of the former German co1onies.l
In essence, the Union undertook in the Mandate to promote to
the utmost the material and moral well-being and social progress
of the inhabitants, to render reports to the League, to refrain from
altering the terms of the mandate unilateraily, to submit to the

jurisdiction ofthe P.C.I. J. any dispute with another League hlember
concerning the interpretation or application of the Mandate, if
such dispute could not be settled by negotiation.
The Union by accepting the Mandate became the effective
authority in an area of roughly 3z0,ooo square miles. South West
Africa was the largest of the mandated territories, ~vith a white
population of 15,000, consisting largely of German settlers and an
indigenous population of 81,000, comprising various ethnic and
linguisticgroups. Germany had concentrated her colonizing efforts

The otherterritories under "C" Blandatcs wcre Western Saiiion, Niruru,a portion
ofNew Guinea and numerous Pacific islands. in South Weçt Africa on the exploitation of minera1 wealth and the
develoyment of agriculture. In doingço, it bad encountered stubborn
resistance arnong the native African tribes, especidly the Hereros.
Terroristic meaçures werc taken by the Germans to suppress such
resistance.The end of German control left a legacy of poverty for
\
I the natives and deep resentmcnts. The Union of South Africa in
1920 asçurned the duty to transform this legaçy into a condition of
well-being and social progress. It was a solernn duty, voluntarily
and expressly undertaken.
Annual reports called for in Article6 of the Mandate for South
West Afriça were for a time submitted by the Union to the Council
of the League of Nations, beginning with a report for 1919. A
separate body, the Permanent Mandatcs Commission was entmsted
by the Lcague Council, with responsibility for reviewing the Reports,
along with those of the other mandatory powers, and advising the
Council as to the course of administration in the mandated terri-
tories.The Commission'sorganization and proceduses were governed
by a Constitution and Rules approved by tiie Council. The Commis-
sion, composed of nine (later ten, then eleven) mernbers, normally
held two sessions a year, when the reports were exarnined and dis-

cussed. It was assisted in its work by the presenceof an accredited
repreçentative of each hlandatory power who was available to an-
swer yuesJions put by mernbers of the Commission and to amplify or
correct statementç in the reports. The Commission formwlated a
setof detailed questionnaires, covering al1phases of administration,
to be used as guides by the mandatory powers in the preparation
of their annual reports. Tnaddition to these reports, the Commis-
sionhad at itç disposaa variety ofdocumentation, officiaand other-
wise, collected by the Mandates Section of the League Secretariat .
Finally, petitions setting forth grievances of inhabitants of the
mandated territories were received and evaluated by the Com-
mission.

3. Attitadead PaZicyof the Union

Although the Union was not at first overtly hostiletowards the
Permanent Mandates Commission (as it has been to the United

Nations Cornmittee on South West Africa, as willbe shewn later
in this Mernorial) nevertheless, officiais of the Union Government
from the outset viewed the Mandate as tantamount to annexation.
In an articleappearing in the CapeTimes on September 18,zgzo,
Marshal Smuts was reported to have "ernphasized that the
League of Nations had nothing to do with the giving of the Man-
dates." He was reported to have said: "In effect, the relations
between the South-West Protectorate and the Union amount to
annexation in al1 but name." l

ReprintedinP.M.C.,Min.,2nd Sesaion (Anne6),92.38 SOUTH WEST AFRICA

Inthc light of sostriking a teversal ofconcept toward the Mandate
System, the Permanent Mandates Commisçior~felt obliged on more
than one occasion to cal1 the Union to task with respect to its
attitude toward the legal çtatus of the Territory. Thus, when the
TJnion concluded a seses of Agreements with Portugal regarding
the boundary between Angola and South West Africa, the Commis-
sion drew attention to the fact that in the Prearnble to one such
Agreement, the Union asserted "full sovereignty over the territory
of South Wcst Afxica, lately under the sovereignty of Germany."
In its report to the Council of the League of Nations following its

Eleventh Session, the Committee stated :
"Because of the fiindamental importance of this question the
Committee feels obliged to bring it to the attention ofthe Council.
Two considerations have led the Commission to take this decision.
Tn the first place, the paral!el drawn in the above-mentioned
prearnhi~ between the sovcreignty assumed by the Goverriment of
the Union of South Africa over the territory in question and the
sovcreignty over that territory previously held by Germany, seems
to imply a daim to legal relationsbetween the mandatory Power
and the tersitory it administers under its mandate, which are not in
accordance with the fundamcn ta1principlesof the mandates system.
Secondly, the Prime Minister of the Union made the following
declaration in the Union Parliament on March rxth, 1927:
'1 would refer the honourable member to the decision of the Su-
prerne Court of South Africa (Appellate Division) in the case of
Rex v. Chridian, A.D. 1924, at page 122, wherein it was laiddown
that "tl~ majestas or sovereignty over South-West Africa residct;
neither in the Principal Allied and Associated Powers, nor in the
League of Nations, nor in thcBritish Empire, but in the Government
of the Union ofSouth Africa, which haç frill powers of administra-
tion and legklation only lirnited in certain definite respectby the
Mandate." The Government of the Union entirely adheres to this
decision.'
In view of these statements and the interpretations to which
they have given rise, the Commission is anxious to know the exact
mcaning which is to$e attribiited to the expressions referred to.
The Commission notes that the accredited representative of the
Mandatory Power was not able to giw the opinion of the Govern-
ment of the Unionof South Africa on this question, and it hopes
that that Government will be so good as to explain whether, in its
view, the term 'possesses sovereignty' expresses only the right to
exercise full powers of administration and legislation in the territory
of South-West Africa under the terms of the mandate and subject
toits provisions andtothose of Artlde 22 ofthe Covenant,or whether
it irnplies that the Government of the Union regards itself as being
sovereign over the territoryitself."l

At its Fifteenth Session the Commission referred again to the
question of the legal status of South West Afnca: '

l P.M.C., Min., 11thSession (Annex Gj204-205. MEMORIAL OF ETHIOPIA 3'3
''The Permanent Mandates Commission notes with regret that,
in spite oallits previous discussions on this subject andal1the cor-
respondence exchanged between the Council of the League of Nations
and the Government of the Union of South Africa in1927 and 1928,
ithas never received an explicit answer to its repeated question on
the meaning attached by that Government to the term 'full sover-
eignty' uscdto define the legal relations existing between the man-
datory Power and the territoryundet its mandate.
Thar question may be forrnulated as foliows: In the officia1

view ofthe Governrnent of the Union of South Africa, does the term
'poçsesseçsovereignty' express only the right to exercise full powers
of administration and legislation in the territoq of South West
Africaunder the terms of the mandate and subject to itsprovisions
and to those of Article22of the Covenant, or does it imply that the
'Government of the Union regards itselfas being sovereign over
the territory itself?
As long as no clear repIy to this question is received, the&m-
mission fears thataregrettable misunderstanding willsubsist, which
it thesefore hopesthe Council may succeed in finallycleasing up.""
In addition to itsassertion of the possession of sovereignty over

the mandated territory, the Union gave indications at an early
date of its intention to incorporate the territory of South West
Africa as a fifth province. At the 6th Session of the Permanent
Mandates Commission, this question was discussed. Mr. Smit,
the accredited Union Representative, stressed that the term "in-
corporation" was not descriptive and that if the Territory joined
the Union it would do so as an independent state.
These remarkç prompted the following rejoinder by Mr. Rappard

of the Commission:
". ..the territories habeen handcd over to certain Governmentç
to be adrninisteredby them in the name of the Leape of Nations.
Ttwould be rontrary to the spiritof this arrangement if,upon the
demand of somc ten thousand white settlers,a mandated territory
were, in fact,tu beincorporated with the territory of the mandatory
Power. This was not a question of degree, but of principle. The
mandated territory of South West Africa, thuugh adrninistered as
an integal part of the territoryof the Union, was administered on
behalf of the League of Nations."

Thereafter, the proposa1 frequently drew the Commission's
attention and, in 1934, the Legislative Asçembly of South West
Afnca adopted a resolution contemplating the incorporation of the
Territory. The Commission again expressed its rnisgivings:

"As the guardian of the integrity of the institutioof mandates,
the Commission thesefore expectç to be inforrnedof the Mandatory
Power's views on the question, which it willnot fd to subject to
thatcareful examination that itsinternational importance demands.

l P.M.C., Min., 15th Session (Annzo),294.
P.M.C.,Blin.6th Session,60-61. 4O SOUTH WEST\AFRICA

The Commission wishes, on this occasion, to draw attention to
the mandatory Power's fundamental obligation to give effect, not
onlyto the provisionsof the mandates, but also to those of Articl22
of thcGovenant." l

In the meantirne, the Union had established a "South West
Africa Commission" (known inforrnally as the "Constitution Corn-
mission") to deal further with the matter of incorporation. The
Constitution Com~nissian, in a Report dated March z, 1936,
concluded :

"(a) The present form of government of the Territory isa failuse
and should be abolished.

(b) There is no legalobstaclcto thegovernment of the hlandated
Territory as aprovince of the Union siibject to the Mandate."

The Union, in its Annunl Report of 1936 voiced the opinion that
no legal obstacle existed to the incorporation of the Territory as a

fifth province of the Union. It stated however, that "sufficient
grounds had not been adduced for taking such a çtep." There the
matter rested for nearly a decade, the Commission confining itself
to "making al1legal reservationç on the question." a
The question of the legal status of the Territory was perhaps the
most serious area of disagreement persisting between the Union
and the Permanent Mandates Cornmissian. However, the Commis-

sion repeatedly deemed it necessary to criticize other phases of the
Union's adniiniçtration of the Territory, as well. Examples were:
the programme of segregating the native population on reçerves;
inadequate sums spent on hedtlz and education of tlie natives;
programmes of land tenure ;'liquor control s;and labor conditions.
Substantive violations by the Union of the Mandate are devel-
oped and discusçed in detail in subsequent chayters of tkis

Mernorial.
The las€ Report çubmitted by the Union covered the year ending
March 31, 1939. Itwas not reviewed by the Commission, the açtivi-
. ties of whick were suspended due to the outbreak of the Second
World War.

*Report of South West Africa Commission (Pretoria, r936), p. 77.
*Report Presented by the Govcrnmcnt of the Unioiz of South Africa to the
Çouncil of the Ceague of Nations Çoncernithe Administration of South West
Afriça for the Year 1936 (Pretoria, 1934..
' P.M.C. M,in.. 31stSession (Anne7). 192.
P.M.C., Min., 4th Session, 63-63.
* P.M.C., Min.26thSession (Annex20), 207P.M.C.,Min., 14th Sessian (Annex
16).275: P.M.C., Min.,31st Session (Annex T), 193.
P.M.C.. Min.. 6th Session (AnneII), 175.
a P.M.C.. Min.,9th Session (Annexg), 320.
9 P.M.C., Min., 14thSession (Annex16). 279-275.42 SOUTH WEST AERICA

regard to the unique circumstances which so signally differentiate
South West Africa-a territory contiguous with the Union-from
al1other mandates, it is the intention of thUnion Governmcnt, at
the forthcoming session of the United Nations General Assembly
inNew York, to formulate itçcase for açcording South West Africa
a status under whick it would be intemationally recognized as an
integralpart of the Union. As the Assembly will know, it isalready
administered under the terrns of the Mandate as an integr alrt
of the Union. In the meantirne, the Union will continueto administer
the territory scrupulously in accordance with the obligations of the
Mandate, for the advancement and promotion of the interests
of the inhabitants, asshe has done during the past six years when
meetings of the Mandates Commission could not be held.
The disappearance of those organs of the Leagie concerned with
the supervision of mandates, primarily thc Mandates Commission
and the League Council, will necessarily preclude complete corn-
pllancewith the letter ofthe Mandate. The Uaion Govmwment wiU
neveriheless regarthe dissclwtionof theLeague as i~ wowzeiadyimin-
ishirqgils obligationsunderth Mandate, which d wilL continue to
discharge mith thefull and Foper a$fireciatiolof ilsres$onsibiLities
udil such time as dher arralzgements are aggree%$on coracerningthe
ficturestatzofthe ire~~ilovy''(Italicadded.)

On the basis of the United Mations Charter and the expressed
intention ofthe Mandatories, induding that of the Union as quoted
above, the League of Nations adopted the following resolution,
the Z'7tz'onvotiragin itsfavor :
1
"The Assembly,
"Recalling that Article 22 of the Covenant applies to certain
territorieplaced under mandate the principle that the well-being
and development ofpeoples not yet able to stand alone in the stren-
uous conditions of the modern world form a sacred trust of civili-
zation :

"1. Expresses itssatisfaction with the manner in which the organs
ofthe League have prformed the fmctionr; entrustcd to them with
respect to the mandates system and in particular pays tribute to
the work accomplished by the Permanent Mandates Commission ;
...

"3. Recognizes that, on the temination ofthe League's existence,
its functions with respect to the mandated territories will corneto
an end, but notes that Chapters XI, XII and XII1 of the Charter '
of the United Nations ernbody principles corresponding to those
declared in Article22 of the Covenant ofthe League;
"4. Takes note of the expressed intentions ofthe Members of the
League now administering tenitories under mandate ta continue to
administer them for,the well-being and development of the peoples
concerned in accordance with the obligations contained in the
respectiveMandates udil otlaerawangentents have beenagreedbetween

League ofNations Off.J.,~1st Ass.. 32-33(plenary1~346). the UnitedNations and theresfiectivamrandatoryP~oevs.'' (Italics
added.)

No çuch "other arrangements" have ever been concluded; the
United Nations has refused consent toincorporation and the Union
bas refused toenter into a trusteeçhip agreement.
Al1 territories, other than South West Africa, which were under
"C" mandates have been converted into trust territories pursuant
to Chapter XII of the Charter of the United Nations. With the
exception of certain içlands forrnerly under Japanese mandate,

which were allocated to the United Statesandbecame international
trusteeships, al1 the former Mandatory powers retatned their
responsibilitiesnder trustceship agreements, subrnitted by them
and approved by the United Nations. The Union alone of al1the
Mandatories has followed a different course, Tts attitudes and
policieswith respect to the Territory are set out fully below.

B. HISTORY OF THE A AN DAT SUBSEQUE NOTTHE ESTABLISBME-IT
or:THE UNITED NATIONS

1. The Perz'od2946-1949

As described above, at the tirne the League of Nations was
terminating itç affairs and the United Nations was being established,
the declared intention of the Union was Toseek United Nations

approvd for incorporation of the Territory, but, in the meantirne,
to honor itç obligatioasMandatory. Inaccord with these intentions,
the Union submitted a memorandum to the United Nations on
October 17,1946, in which it stated that "this responsibilitythe
Union Government as Mandatory is necessarily inalienable."
Again, on November 4, 1946,the Prime Minister of the Union, in a
statement tothe United Nations Fourth Cornmittee, repeated what
the Union had stated before the League, thatit desired incorpo-
ration, but that, in the meantirne, it would abide by the Mandate.2
The Union also placed before the General AssembIy its plan to
incorporate the Tenitory.
On the 14th of December, 1946, the United Nations General
Assembly considered the Union plan for incorporation. By Resolu-
tion, the Assembly wdthheld itç consent and recommended a
Trusteeship for the territory. The terms of the Resolution fol2ow:

"The GenevalAssembly,
Hauirtgconsidered the statements of the delegation ofthe Union
ofSouthAfricarcgasding the questionofincorporating the mandatecl
territoryof South West Africinthe Union;

l Id. a58.
Ipifernatrosdat~O/South-West A/nca, Aavisory Opinion: LC.3. Reports
1950.p.128at 135.44 SOUTH WEST AERICA
Noti~g wiih satisfaction,that the Union of South Africa, by
presenting this matter to the United Nations, recognizes the interest
and concernof the United Nations in the rnatter of the future çtatus
of territories noheldunder mandate;
RecaUzagthat the Charter of the United Nations provides in
Articles 77 and 79 that the trusteeship systern shd apply to
territories now under mandate as mlty be subsequently agreed;
Re/errzngto the resolution oftheGeneral Açsembly of gFebruary
1946,inviting the placing omandated territories under trusteeship;

Dtsi~ing that agreement between the United Nations and the
Union ofSouth Afrîcamay hereafter be reached regarding thefuture
status of thmandated territoryofSouth West Africa;
Asszcredby the delegation of the Union of South Africa that,
pending such agreement, the Union Government will continue to
administer the territoryas lieretofore in the spirit of the principles
laiddownin the mandate;
Considering that the African inhabitants of South West Africa
have not yet secured political autonomy or reached a stage of
political development enabling them toexpress a considered opinion
which the Assembly could reçognize on such an important question
as incorporation of their territosy:
The ~llzsralAssembly ,therefore,
1s wnabk Ioaccede to the incorporation of the territory of South
West-Africa in the Union of South Africa;and

Recommends thi the mandated territory of South West Africa
be placed under the international trusteeship systern and invites
the Government of the Union of South Africa to propose for the
consideration of the General Assembly a trusteeship agreement for
the aforesaid territory.l
Inspite of the above recommendation of the General Assembly
that the Union conclude a trusteeship agreement, as well as an
eatlier recommendation to the same eflect, the Union dectined to
do $0.
The Union, however, continued to declare that it would honor

its obligations under the Mandate even though the U.N. had ex-
preçsly refused to accede to incorporation of the Territory in the
Union.
In the FourthCornmittee ofthe General Assembly, "Mr. Lawrence
,(Union of South Africa) recalled that the General Açsembly had
found itself unable to accede ta hiç Government's request for in-
corporation of SouthWest Africain the Union of South Africa and
hadrecommendedthat a trusteeship agreement should be subrnitted.
His Government was not proceeding with itsproposal taincorporate
South West Africain the Union. To this degreeit was cornplying
with theresolution of the Generat Assernbly ..Althoughthe General

Assembly had not thought to take into account the wishes of the

A/64/Add. 1atirz3(r947).lution 65(1)of 14Decernkr 1946,U.N. Doc. NO. MEMORIAL OF ETHIOPIA

inhabitants, the Government of the Union of South Africa, in
deference to the wishes of the General Assemblj7,'didnot propose to
proceed with incorporation." '
In a letter dated Jdy 23, 1947 to the Secretary-General of the
United Nations, the Union referred to a resolution of the Union
Parliament in which it \vas declared "that the Government should
continue to render reports to the United Nations Organisation as
it has done heretofore under the Mandate." The Union stated

further in the sarne letter that "ln the circumstances the Union
Government have no alternative but to maintain the sbatusquo and
to continue to administer the Territory in the spirit of the existing
Bfandate." (Italics added.) The Court, in its Advisory Opinion of
Ir July 1950, characterized the foregoing assertions2as consti-
tuting "recognition by the Union Governrnent of the continuance of
its obligations under the Mandate and not a mere iridication of the
future conduct of that Government."
In 1947 the General Assembly again invited the Union to conclude

a trusteeship agreement. In its Resolution of I November 1947, the
General Assembly noted that "the Government of the Union of
South Africa has not carried out the aforesaid recommendations
of the United Nations" and that "it isa façt that al1other States
adrninistering territories previously held under mandate have
placed these territories under the Trusteeship System or offered .
them independence." The Assembly reaffirmed that it "Firmly
wnintlaa'rlsits reçommendation that South West AErica be placed

under the Trusteeship Syçtem" and "Urges the Government of
the Union of South Africa to propose for the consideration of
the General Assembly a trusteeship agreement for the Territory of
South West Africa .. ."
The Union failed and refused to heed this Resolution.
In 1947 the Union submitted to the General Assembly a report
on the Territory for the year 1946. In 1948, the Tmsteeship Council
of the United Nations cornmented on the Union report, declaring,
ider dia;

(1) "Tlie Council, being convinced of the desirabilityofincreased
participation by indigenouspopulationsin the direction of thairown
affairs,notes that the indigcnovs inhabitants of the Territory have
no franchise, no eligihjlitÿto officeand no representation in the
governingbodies or in the administration of the Territory.
. . . . - . . . . * . . . . . * . , . . . . . . . . . .
(2) "The Councilnotes that the total expenditiiredevoteddirectly
to non-European administration and welfare in the year 1946-47

* U.N. Iloc. No. A/334 aI(rgq7)..4thComm. at3-4 (1947).
3 Id.at 2.
4 Internaiionas;aiitof South-West AJr~cu,Advisory Opinion :I.CJ.. Reports
iqtso. p128at 135.
Generlvllssembly liesolution 14r (II) o1 November 1947, U.N. Gen hss.
Off. Rec. 2nSess.at 47(A/grg) (rgq3).46 SOUTH WEST AFHICA
anzounted to Sz46,605,and that this amount repreçented 10.16 per
cent of the entire budget of the Territory. The Council alsonotes. in
examining this expenditure, that the non-European population was
cstimated ai 336,552, in 1946, as against a European population of
38,020.
"Te Council obscrves that this iç an expenditure of IittIe more

than ten per cent of the budget on the indigenous inhabitants, who
comprise approximately go per cent of the entirc population.

(3) "The Council is oppoçed, as a matter of ptinciple,to racial
çegegation. The Cour-icil,while lacking precise information as to
the reasons for the urban segregation policy in the Territory,
considers that great efforts should he made to diminate, through
education and other positive measures, whatever reasons may exist
that explain segregation.
"The Council considers also that even within the system of urban
segregation great attention should he paid to the well-being of the
indigenous inhabitants in the way of the improvement of housing
conditions, the prescrvation of family life ai-id the encouragement
ofa greatcr degree ofresponsibility.

(4) "The Councjl notes that the rnaster and servant lawç appli-
cable to civil contracts between employer and empIoyee providc
criminal penalties for breaches by the employees, and that it-ithis
connexion there were 2,100 convictions in 1946.
"The Council considers t1iat the large number of criminal convic-
tions tevealsan abnnrnlal situation and that contractual relations
between employer and labour should not be subject to criminal
penalties.

(5) "The Loiincil notesthat, urkile it is the poIicy of the adminiç-
tration to ernploy convict labour on public works, it is thepractice
atsrnallgaols to hireouthard-labour convicts occasianally toprivate
persolis when the administration is unable to provide work for thern.
"The Council considers that the hiring out of prison labour to
private perçons isa praçtice wllich rnay lead to abuses.

(6) "The Council notes that, in1946, there were, in the Territory,
only six indigenous officiaschools, with 555 pupils, al1in the %lice

Zone, as against 53 European officiaschools with 6,415 pupils. The
Council notes also that indigenous education is still largely in the
hands of missions, which are assistedby the Government, and which
in 1946 maintained, in the Police Zone, 72 indigenous schools with
4,935 pupils and in the outçide areas 154 schoolç, of which only
25 were conducted by European teachers and which had alto~-ther
r5,062 pupils.
"The Council notcs that no educational facilitieare provided by
the Government in the purely indigenous areas, inhabited by some
192,ooo people, which lie beyond the Police Zone. The Council is
of the opinion that the provision of urgently-needed educational MEMOKIALOF ETHIOPIA 47
facilities for the indigenous population iç vital to their political,
econornic and socialdevelopment ...l (Footnotes omitted.)

The report submitted by the Union in 1947 was the last and only
report filedIn its letteç oJuly II,1949 to the Fourth Committee,
the Union Governrnent stated that "it canno longer see that any
realbenefit is lo be derived from the submission of special reports
on South West Afriça to the United Nations, and have regretfully
corne to the conclusion that in the interest of efficient adminis-
tration, no further reports should be forw;irded." The Union
also stafkd that "the sübrnission of information has provided an

opportunity ta utilize the Trusteeship Council and the Trusteeship
Cornmittee as a forum for unjuçtified criticism and censure of the
Union Government 's administration, not only in South West
Africa but in the Union as well ... Furthemore, the very act of
subrnitting reports has created in the minds of a number of Members
of the United Nations an impression that the Trusteeship Council is
competent to make recommendations on matters of interna1
administration in South West Africa and has fostered other rnis-
conceptions regarding the statuç of this Territory." 3
The Union's announcement signalled its repudiation of previous
explicit commitments.

By November, 1948, the Union Government wu openly denying
its obligations under the Mandate and, insiçting-in contradiction
to its statements of a year earlier-that the Mandate had expired.
Thus, Mr. Eric Louw, the representative of South Africa in the
Fourth Cornmittee, described an agreement between the Union
Government and certain political parties in South West Africa, as
providing "for a closer associationand integration of South West
Africa with the Union of South Ainca along the lines envisaged in
the previous Madate, since exfiired." (Italics added.)
The followingyear, the representative of Liberia in the Fourth
Committee presented his Government's view ofthe matter. At the
~pnd meeting of the Fourth Committee, held on November 22,
of South
1949, the Liberian delegate stated that the question
West Africa had several aspects, and that the judicid aspect, as
the Cnion of South Africa viewed it, was that South West Afxica
had been entrusted to it by the League of Nations and that with
the dissolution ofthe League the United Nations was not competent
to deal with the question. The Liberian delegate adverted to the
fact that the Union Gished tohave the annexation of South West
Africa accepted as a faitaccom#Zi.He stated, however, "that the

U.M. Gen. Ass. Off. Rec 3rd Sess., SuSo. 4 at 43-44 (A(bo3) (1948).
U.N.Doc. No. A192g, U.N.Gen.Ass.Off. Rec. 4th Sess., 4th Comm., Annex
to Summary Records 01 Meetingsat 7 (1949)
As.paraphrascd iU.N. Gen. -45sOff. Rçc.3rd Sesç, 1spart, 4th Cornm.
at 293 (1948)q8 SOUTH WEST AFRICA

United Nations had the rightto determine ~vhether such a rneasure
was Iegally justified." '
The Liberian delegate afirmed that the question had a moral
aspect as well, and that the human rights of people in the Territory
shauld be respected by al1 States and Members of the United
Nations. Finally, the Liberian representative argued that the ad-
ministration of South West Africa should be considered as a part of

the foreign affairs of an adrninistering power and was not, as the
Union argued, solely within the national cornpetence of the Union
of South Africa. &
It is apparent from the history sumrnarized above that In the
period ~946-1949, the Union's policy concerning the Mandate
underwent a marked change. At the beginning of the period, the
Union conceded the existence of the Mandate and its obligations

thereunder, including that of rendering reports to the finited
Nations. By the end of the period, the Union was referring to the
Mandate as "the previous Mandate, since expired," insisting that
the administration ofthe Territory was a matter solely ofinterna1
concern, and refusing to render reports to the United Nations.
In this same period, the Union rejected three General Assembly
resolutions çalling upon it to follow the example of all other "Ç"
mandatories and place the Territory under the Trusteeçhip system.

By the end of 1949i, t was obvious that the Union's concepts of
itç legal obligations under the Mandate were essentially at variance
with those of most other United Nations Members, including
the Applicant. Accordingly, the General Assembly deemed it
advisable to ask the International Court of Justice for an advisory
opinionregarding the Mandate.The Court rendered itç Opinion
on Jaly II, 1950 in Inlsrlzatiorzal Slalzds ofSautk West Africa.
The Court's rulings, together with ensuing negotiations based upon

thern, are disçusçed jmmediately below.

2.The Period rgjo-1960

(a)Ivztroduction
A cornplex of interlacking events affecting the kndate tran-
spired during 1950-196 0or the convenience of the Court, the

l As paraphrased in the Summary Rscords of rgznd meeting of 4th hm-
mittee, U.N. Doc. No. A)C.4/SR. 132 a228, para.57 (rg49).
Id. at paraM.
As paraphrasedin U.N. Gen. Ass. Off. Rec. 3rSess.,rst part. 4th Com-
mittee at293 (1948).
A/6q/Add. 1latrz3b(1947).lution 65 (1) o14 December 1g46,U.N. DOC.NO.
b General Assembly Resolutio141 (II) of r November1947,U.K. Gen. Ass.
Off. Rec. andSes. at47 (A/grg) (1g48).
c GeneraI Assembly Resolution227 (III) of 26 November 1948.U.N. Gen.
Ass. Off. RE. 3rdSes. at 89 (A181o) (~948).
IralerinationalsdofoSouth-West Afrzca, Advisory OpinioI.Çj. Repurts
rggo,p. 128. *. r

MEMORIALOF ETHIOPIA 49

period as a whole will be briefly surnmarized, and then each major
event will be separately exàmlned.
The International Court of Justice in its Advisory Opinion of
rI July, 1950 b,y a vote ofeight to six ,eld that the Unionwas not
legatly obligated to place the Territory under the Trusteeship
System. Regarding the Mandate itself, however, the Court ruled:
(1) "that South West Africa is a Territory under the international
Mandate assumed by the Union of South Africa on December 17th,
rgzo" (unanimouslyj ; (2)"that.the Union of South Afka continues
to have the international obligations stated in Article 22 of the

Covenant of the League of Nations and in the Mandate for South
West Africa as well as the obligation to transmit petitions from the
inhabitants of that Territory, the supervisory functions to be
exerçised by the United Nations, to which the annual reports and
the petitions are tobe submitted, and the reference tothe Permanent
Court of International Justice to be replaced by a reference to the
International Court of Justice, in accordance with Article 7 of the
Mandate and Article 37 of the Statute of the Court" (by twelve
votes to two) ; (3)"that the Union of South Africa acting alone
has not the competence to rnodify the international status of the

Tenitory of South West Alrica, and that the competence to deter-
mine and modify the international status of the Territory rests with
the Union of South Africa acting with the consent of the United
Nations" (unanirnously) .3
The Advisory Opinion of the Court thus set forth certain basic
legd principles relevant to the Mandate, The United Nations
General Assembly determined that the future of South West
Africa should be based upon law. The Assembly therefore established
vanous agencies from time to tirne with the mission of seeking tu
pve effect to the rulings of the Advisory Opinion.

The first agency establiçhed was the Ad Hoc Committee, which
functioned between 1950 and 1953Its initia1 duty was "to confer
with the Union of South Africa concerning the procedural meas-
ures necessary for implementing the advisosy opinion ai the Inter-
national Court of Justice and to submit a report thereon ..."
In 1952 ,he Committee's duty was rnochfied slightly: it was to seek
"meanç of implementing" the Advisory Opinion. Several years
of effort by the Ad Hoc Çommittee to negotiate with the Union
were unavailing, however, because of the Union's insistence that
the Committee's terq of reference had a "restrictive nature."
Upon the failure of negotiation between the Union and the Ad
Hoc Cornmittee, the General Assembly in 1953 esstabliçhed the

1 Id.at 143.
2 Ibid.
3 Id. at 144.
General Assembly Resolution 4(V) of13 December 1950.U.N. Gen. Ass.
Off.Rec. 5th %S., Supp. No. 20 at55 (Al17~5) (1950).
General Assembly Remlution 570 (VI)of zg Januaryrg52!U.N. Ge*. AsS.
OffAsecparaphraçed itheNSummary Records of)the9Ad Hoc Committee, U.N.
Doc. No. A(AC.+g/SR.zr at3 (1g5z).5O SOUTH WEST APRICA

Comrnittee on South West Africa. One duty of this Committee was
to negotiate with the Union for the purpose of having the Court's
Opinion implemented. While this Cornmittee was also authorized
by the GeneraI Assernbly to "examine ...reports and petitions which
may be subrnitted", it was further authorized to examine "such
information and documentation as rnay be available in respect of
the Territory", and to "transmit to the General Assembly a report
concerning conditions in the Territory taking into account, as far
as po~sible, the scope of the reports of the Permanent Mandates
Commission of the League of Nations." l

The Cornmittee on South West Africa continues actively to
purçue its mission. It has transmitted to the Assembly annuai
reports concerning conditions in the Territory. Theçe publiçhed
reports have annually criticized the Union sharply for the manner
in which the Union administem the Territory and have been
annually approved by the General Assembly.
Attempts by the Committee te negotiate with the Enion have
failed, justas theefforts of the Ad Hoc Cornmittee failed.The Union
has refused to co-operate with the Committee.
In 1957 the General Assembly sought a new initiative.The
Committee on South West Afnca \vasto continue to render reports

and examine petitions. However, negotiations were to be attempted
by a new cornmittee of the General Assernbly, called the Gaod
OfficesCommittee. This was composed of the United Kingdom, the
United States and Brail.
The Good Offices Comrnittee was directed "to discusç with the
Governrnent of the Union of South Africaa basis for an agreement
which would continue to accord fo the Territory of South West
Africa an international status." +
While the Union met with this Comrnittee, no basis of agreement
was acceptable both to the Union and to the General Assembly.
The Union refused to secognize the existing rights of the United

Nations to supervise the administration of the Mandate or to
conclude any new agreement providing for United Nations super-
vision over the Territory as a whole. It remained wilïng to negotiate
an agreement with the Govefnments ofFrance, the United Kingdom
andthe United States of America as the three remaiaing Principal
Allied and Asçociated Powers. It was also willing to investigate
the practicability of pa~titioning the Territory with a view to
placing the northern part under the InternationaI Trusteeship
System and annexing the balance of the Territory into the Union.
The General Assembly had already rejected in 1953 the negotiation

of an agreement with the three remaiaing Principal Alhed and
Associated Powers asviolating the requirements of the Mandate as

General hssembly IZesoluti749A (VIII} o28 November 1953,U.N. Gen.
Aes.General Assembly Resolutio1143a(XII) of250October)1957, U.X. Gen.
Ass. Off. Rec. i2Sess..Supp. No.r8 at 25 (A13505 1957).interpreted by the Assernbly and by this Court. 'In 1958,the General
AssembIy decided "not to accept the suggestions contained in the
report or the Good Offices Committec on South West Africa that
envisage partiti011 and annexation of any part of the Territory
as a basjs for the solution of the question of South Wcst Africa."
Througho~it the penod 1950-1960, the Fourth Cornmittee of the
General Assembly has regularly placed the question of South West
Africa on itç agenda. Repeated debateç and resolutions have failed

to bring about the Union's compliance with the Mandate.
The above, in general, are the highlights a£ rgy-1960 in regard
to the question of South West Africa. Because the Court's Adviçory
Opinions have been so central to the abortive negotiations between
the several United Nations Cornmittees and khe Union, the opinions
will be diçcussed immediately below as a preface to a chronologcal
examination of the relevant hiçtory of the Mandate, year by year.

(b) Brzef Suwmary O/ theCoud's Advisoy O$i?zious

The Court has rendered three Adviçory Opinions relating to
South West Africa in response to questions addressed to the Court
in each instance by the General Açsenibly.
The basic Opinion is that of July 11, 1950. The others were
delivered June 7, sgyj and June x,1956 and des1 with questions
ariçing out of the fundamental yrinciples laid down by the July II,
1950 Opinion.
EacIz Advisory Opinion has been accepted by the General Assem-

bly by appropriate resolution, the Applicant voting with the
rnajority in each case.

(1)Advisory Opinion of July r I,1g5o
The General Aççernbly, 7y Kesolution 338 (IV), Decernber 6,
1949, r~quested the Court for an Advisory Opinion on certain
quations, set out in full in the Court's Opinion.

Upon receiving the request for an Advisory Opinion, the Court
gave notice of the request ta a11States entitled to appear before the
Court. Along with four other States, the Union of South Africa
presented a written staternent to the Court.5 The Union also pre-
sented oral argument."he Union's main contention was that the
dissolution of the League caused the Mandate to expire since
"the League waç the mandator; the Union Government the rnan-
datory. From its very nature, this mandatory relationship, in
whichever way we construe it, requires more than one party, one

' General hssembly Resolutio749A (VIII)01 28 November 1953,U.N. Gen.
Ass.General Assembly Resolution 1243 (XIL1) of 50 October 1958, Li'.N.Gen.
Ass. Off. Rec13th Sess.,Supp. No.18 at 30 (A14ogo) (1958).
Ifilavnnlto~al stafuSoardh- esA fAca, Advisory Opinio:1.C.. Reports
1950,p. 128.
U.N. Gen. Ass. Off. Hec4thSess. at$5 (A/~zj~/Cor 1) (rgqg.)
Inlevwaliorastatus oSouth-WexbAfrica,Pleadings, Oral Argument1)ocu-
ments, p.72(I C.J. Reportt950).
Id. 3t273. SOUTH WEST AFRICA
52
of whom must be the mandator. It could not stand with only a
mandatory as a party to it.That ...would be alegal irnpoçsibility.l
The Court, after consideration of this argument, unanimously
rejeçted it.
In itsAdvisorv O~inion.the Court held that "South West Africa
iç a territory under the international Mandate assumed by the

Union of South Africa on Decernber 17, 1920." In rejecting the
Union's contention that the Mandate lapsed with the dissolution
of the League, the Court pointed out : "The Mandate was created,
in the intereçt ofthe inhabitants of the territory, and of humanity
in general, as an international institution with an international
object-â sacred trust of civilization." It added that the Union's
obligations under the Mandate "represent the very essence of the
sacred trust of civilization. Their raison d'êtreand orignal object
rernain. Since their fulfdlrnent did not depend on the existence of
the League ofNations, they codd not be brought to an end merely
becauçe thissupervisory organ ceased to exist. Nor coald the rlght
of the population to have the Temtosy administered in accordance
with these rules depend thereon." Hence, the Court concluded,

the Territory has an international status, and "if the Mandate
lapsed, as the Union Government contends, the latter's authonty
would equally have lapsed."
The Court affimed the Union's international obligations under
Article 22 of the Covenant and under the Mandate, including the
duty to render annual reports and to transmit petitions from in-
habitants of the Tenitory, and confirmed as weil the power of the
United Nations to exercise supervisory functions and to receive the
annual reports and petitianç.5The Court's rationale for theçe rulingç
was that "the obligation incvmbent upon a mandatory State to
accept international supervision and to submit reports is an Im-
portant part of the Mandates System. When the authors of the
Covenant created this system, they conçidered that the effective
performance of the sacred trust of civilization by the mandatory
Powers required that the administration of mandated territories
should be subject to international supervision ..The necessity for

supervision continues to exist despite the disapperance of the super-
visory organ under the Mandates System. It cannot be adrnitted
test the obligation tu submit tosupervision haç disappeared merely
beçause the supervisory organ has ceased to exist, when the United
Nations has anothet international organ perforrning sirnilar, though
not identical supervisory functions." 6 The Court stated that

Id.at 277.
Inlevnaltoxal sfaoJsSoulh-WestA futcaAdvisory Opinio: I.C.. Reports
r950,p. r28 atr43.
Id. at 132.
' Id.at 133.
ld. atr37.
6 Id. at 136. MEMORIAL OFETHIOPIA 53

the degree of supervision should not "exceed that which applied
under the Mandates System, and should conform as far as pos-
sible to the procedure followed in this respect by the Council
of the League of Nations." The Court also held that the Inter-
national Court of Justice replaced the Permanent Court of Inter-
national Justice in adjudging disputes in accordance with Article 7
of the Mandate and Article 37 of the Statute ofthe Court.'
The Union's obligations related (1) to its own administration of

the Territory and (2)to international machinery for supervising its
administration. The Court stated that both sets of obligations
survived and that, in connection with the latter, "the General
Assembly of the United Nations is legally qualified to exercise the
supervisory functions."
The Court considered that the Union was not bound to place
the Temtory under the United Nations trusteeship system. (Six
Judges of the Court dissented from this con~lusion.~)
Finally, the Court held that the Union acting alone lacked
competence to modify the international status of the Territory.
The Court said that "the competence to determine and modify the
international status of the Territory rests with the Union of South
Afnca acting with the consent of the United Nations."

(2) Advisory Opinion of June 7, 1955
The Court was requested by the Ninth General Assembly for
an Advisory Opinionconcerning a rule of voting procedure adopted
by the Assemblyat that session.5The rule provided that questions

relating to reports and petitions concerning South West' Africa
are "important" questions within the meaning of Article 18, para-
graph 2,of the United Nations Charter and therefore required a
two-thirds majonty vote."
On June 7, 1955 the Court affirrned the validity of the rule,
holding that the Assembly had correctly interpreted the Court's
AdvisoryOpinionof July II,1950:Amajonty ofthe Court expressed
the view that the Assembly, operating under a Charter which
differedfrom the Covenant of the League, could not followa system
of voting identical with that of the League Council, the procedure
of which may have required unanimous approval on matters con-
cerning the Mandates System. Hence, the Assembly should reach
its decisionsin accordancewith a method consistent with the require-

Id. at 138.
Id. at 137.
3 Id. at 144.
I.C.J. Reports 1955p. 67.ngProcedure, Advisory Opinion of June 7th.1955:
General Açsernbly Resolution go4 (IX) of 23 November 1954,.U.N.Gen.
As. Off. Rec. 9thSess., Supp. No21 at 55 (A/28go()1954).
Generai Assernbly Resolution 844 (IX) II October 1954,Id. at 25. ..:54 SOUTH WEST AFRICA
ments of the Charter; in this case the provisions of Article 18 of

the Charter.'
(3) Advisory Opinion of June 1, 1956.~
During its Tenth Session,the General Assembly on December 3,
1955, requested an Advisory Opinion on the question whether it
was consistent with the Court's opinion of July II, 1950 for the
Committee on South West Africa "to grant oral hearings to pe-
titioners onmatters relating tothe Territory ofSouth West Africa."3
The Court ruled on June r, 1956,thatit wouldnot beinconsistent

with its earlier opinion for the General Assembly to authorize a
procedure for the grant of oralhearings by the Committee on South
West Africa to petitioners who had previously submitted written
petitidns.
The Court'sconclusion proceeded fromthe fact that "The general
purport and meaning of the opinion ofthe Court of II July Igjo is
that the paramount purpose underlying the taking over by the
General Assembly of the United Nations of the supervisory func-
tions in respect of the Mandate for South West Africa formerly
exercised by the Council of the League of Nations was to safe-
guard the sacred trust of civilization through the maintenance
of effective international supervision of the administration of the

Mandated Temtory." Since the Union Govemment failed to
co-operate with the Committee,the Assemblyconsideredit necessary
to authorize the Committee to grant oral heanngs to petitioners.
The Assembly's right to exercise effective supervision of adminis-
tration of the Territory entitled it to authorize the Committee to
grant oral hearings, if the Assembly "was satisfied that such a
course \vas necessary for the maintenance" of such supervision. 6

(c)'Year-by-Year Chronology of RelevaqztEvents

(1) 1950
As related above, the Court rendered its Advisory Opinion on
July II, 1950.In Kesolution 449 A (V)of 13 December, 1950,'the
General Assembly voted to accept the Advisory Opinion, the
Applicant voting with the majority. By the same resolution,
the Assembly established. the Ad Hoc Committee, consisting of
representatives of Denmark, Syria, Thailand, the United States of

' Soirfli-West Africa-VoiiProcedure, Advisory Opinion of June 7th. 1955:
I.C.J. Reports 1955. p. 67 at 76.
Admissibilitof hearings of petitio?zersby the Committee on Soutlz West Africa,
Advisory Opinion of June ~st, 1956: I.C.J. Reports 1956, p. 23.
General Assembly Resolution 942 (X) of 3 December 1955. Gen. Ass.Off.
Rec.Admissibility of hearings of petitioners by the.ColrSouth West Africa,
loc. cil., supvu, 2nof this page at 32.
Id. at 28.
Id. at 32.
U.N. Gen. Ass.Off.Rec. 5th Sess., Supp. No20 at 55 (~11~~5)(1950). MEMORIAL OF ETHIOPIA 55

Amenca and Uruguay "to confer with the Union of South Africa
concerning the procedural measures necessary for implementing
the Advisory Opinion."

The Union, however, made it clear very early that it would not
act in accord with the Advisory Opinion, and, in effect, proceeded to
reargue its case before the Fourth Committee, alleging that the
Court had not been aware of al1the facts.
At the 196th meeting of the Fourth Committee held on Decem-
ber 4, 1950, the Union representative made clear his Government's
attitude toward United Nations efforts to obtain compiiance with
the Mandate in accordance with the Court's Opinion. The Union
representative did not rest upon the mere assertion that "an

Advisory Opinion is not binding on anybody as would be a judg-
ment in the strict sense of the term." l At thesame time, he insisted
that, notwithstanding the unanimous ruling of the Court to the
contrary, the League of Nations had not intended the United
Nations to succeed to supervisory powers over the Mandates
System. His argument involved a reconstruction of history: "If
the resolution had indeed intended such a transfer offunctions to the
United Nations, it would not have secured the unanimous vote of
the League Assembly as required by Article 5 of the Covenant and

Rule 19 of the Rules of Procedure of the League Assembly, as
South Africa, at any rate, would have voted against it with a result
that no resolution would have been adopted." '
The Union, at the same session of the Fourth Committee, con-
tended that inasmuch as a resolution, proposed by, China, and
making explicit reference to transfer of the League's supervisory
powers to the United Nations was not accepted, it must follow
that the League had intended no such tran~fer.~

However, the summary records of the Fourth Committee record
the nature of the Union's contention. The summary records of the
Cornmittee meeting state: "Mr.Liu (China) observed that the South
Afncan representative had stressed the draft resolution submitted
to the League of Nations by the Chinese delegation; he feared that
that representative's remarks rnight create a wrong impression in
the Fourth Committee. The resolution finaiiy adopted bythe League
did not, it was true, contain any specific provision for the transfer
of supervisory functions, but neither did it forbid such transfer.
In view of the importance .of that point, he wondered why the

South Afncan Government had not considered it earlier but had
waited until the advisory opinion of the Court had been discussed
in the Fourth Committee. Dr. Steyn, who had represented, his
Governent at the deliberations of the International Court of
Justice, could have raised the question at the time.

U.N. Doc.No. AIC.41185at3 (1950).
Id.at 13. .
3Id. at 12-13.56 SOUTH WEST AFRICA

"The Chinese delegation was therefore unable to accept the
argument that the Court had been ignorant of the facts." l
The Union's rejection of the Court's rulings in its Advisory
Opinion wasmade manifest from the outset. An illustration of the
Union'sattitude isfound in a resolution passed on September 28,
1950, by the South West African Legislative Assembly. The
Assembly was composedentirely of "Europeans" who, forthe most
part, weremembersofthe political party then in powerin the Union.
The resolution proclaimed :
"(1) That this House gives its wholehearted support, and ex-
pressesits appreciation andthanks to the Government of the Union
of South Africa forits assurance that it will not-
(a) submit any annual reports onSouth West Africa,to the United
Nations Organization ;

(b) permit that South West Afnca, directly or indirectly, in
connection with its interna1 or external affairs, be placed under the
authority of the United Nations Organization;
(c) untier any circumstance enter into a trusteeship agreement
in regard to South West Afnca with the Trusteeship Council of
the United Nations Organizations; and
(2) that this House declares that the closer connection with the
Union of South Africa, by which South West Africa, inter alia,
obtained representation in the Union Parliament, meets with its
whole approval and only recognizes the sovereignty of the Union
over South West Africa and no other."

(2) 1951

, In ,1951 the Ad Hoc Coimittee held many meetings with the
the Advisory Opinion of July II,ativ1950. It was apparent from the

start that an agreement would be difficult to negotiate, since the
Cornmittee's duty was to negotiate on the bais of the Advisory
Opinion, the validity of which the Union was openly contesting.
For example, at a meeting of the Ad HocCornmittee on June 27,
1951, the Union representative stated, according to the summary
records, that "the International Court had expressed the view that
these obligations remain legaiiy in force, a viewto which apparently
the majority.of the United Nations subscribed. His Government did
not agree with'the opinion of the Court asendorsed by the majority
ofthe United Nations onthis point. It held that, sinceoneofthe two
parties to the contractual arrangement had disappeared, the Man-
date had lapsed and t couldnolonger be regarded as a legaiiybind-

ASparaphrased in the Summary Records of the 196th meeting of Com-4th
mittee,U.N. Doc. No. AlC.41SR.1g6 at 364-365, paras. 63-64 (1950).
South West Africa, Legislative Assembly, 195p.4. -. -*.
r --

MEMORIAL OF ETHIOPIA 57
ing contraçtand that, in consequence, the Government of the Union,
in contsast to the opinion of the Court and of the majority of the
United Nations was of the opinion that it no longer waç legally

bound to carry out the provisions of the Mandate in question. Here,
therefore, there was aisagreement." '
At the same meeting, the Union representative iç recorded as
saying that "a second point on which there was disagreement, a
point which was closely related to the previous one, was the view
expressed by the Court, with which the majority in the United
Nations agreed, that the Union continue to have international re-
sponsibilityforimplementation of the Mandate. The Union Govern-
ment, contending that the Mandate had lapsed, also disagreed on
this point."
The Union Government informed the Ad HOCCommittee of its
willingness to concIude a new agreement with the Principal Allied

and Associated Powerç of World War 1 (the United Kingdom, the
United States of America and France). Under such an arrangement,
in the Union's view, the three Powers would be acting asprincipals,
not as agents of the United Nati~ns.~This proposal was unaccept-
able to the Ad Hoc Committee since it did not fd within the terms
of reference conferred upon the Committee by the General Assem-
bly.The Cornmittee pointed out that such an arrangement could not
be regarded as an irnplementation of the Adviçory Opinion of the
International Court of Justice inasmuch as the Union's proposa1
explicitly rejected a supervlsory function for the United Nations
over the Mandated Ter~itory.~

During the year rg51, as in other years, South West Afnca
figured on the agenda of the Fourth Comrnittee of the General
Assernbly. At its ~~3rdmeeting, on December IO, rggr, the Delegate
from Liberia voiced the regret of his Govemrnent "that a State
which claimed to be peace-loving and dernwratic and which had
signed the United Nations Charter should opedy disregard the
opinion of the International Court of Justice and the decisions of the
General Assernbly."

(3) 1952

Early in 1952 the General Assembly reviewed the abortive nego-
tiations betweenthe Union and the Assernbly'sAd HocCommittee.
The General Assembly's findings were embodied in Resolution

As paraphrased in the Summary Recordsthe 3rd meeting of theAd HOC
Cornmittee, U.N. Dw. No. AIAC.491SR.at 3 (rggr).
Ibid.
id. at 4.
+Report of the Ad Hoc Comrnitteeon South West Africa,U.W. Doc. NO.
Al~Asrpiraphrased in the Surnmary Records of the 4th CornmiU.N.,.OC.
No. A/C.4/SR.z23 a135,para. 4 ("51).

558 SOUTH WEST AFRICA
570A (VI) passed on ~gJanuary, 1952, he Applicant voting with
the majority. The reçolution statedthat the Generai Assembly,
" ..2.Regretsthe fact that, in the course of the negotiations with
the Ad Hoc Committee, the Union of South Africa, while prepared
to negotiate on the basisofcertain articles ofthe Mandate, indicated
itç unwihngness to give adequate expression toits international
obligations with respect to South West Africa, and in particular
with regard to the supervisory responsibilittheUnited Nations
towards this Territory;
3. Declares that, since the Government of the Union of South
Africacannot avoid its international obîigations by uniIatera1action,
the United Nations cannot recognize as valid any measures taken
unilaterally by the Union of South Africawhich would modify the
international status of the Territory of South West Africa;
4.A<ppeds solemdy to the Government of South Africa to
reconsideritç positioand urges it to resumt negotiatiowiththe
Ad Hoc Comrnittee for thepurpose of concluding an agreement
providing for the full implementation of tadvisory opinion of
reports on the administration of theTenitoofSouth WestheAfncasubmit
and totransmit to the United Nations petitions from communities
orsections of the population of the Territosy."

Following upon thiç"solemn appeal" by the General Assembly,
the Ad Hoc Comrnitteeagain sought to resume negotiations with
the UnionGovernment forthe implernentation of the1950Advisory
Opinion. Mr. G. P. Jooste, then Delegate of the Union of South
Africa, however, frankly admitted to the Comrnittee at a meeting
on September IO, 1952, that his Government entertained serious
doubts whether the proposed negotiations cadd possibly serve a
uçeful purpose.These doubts, he attributedtothree considerations :
eat divergence in the views of the United Natiand
th"'*-ion i?veniment on the matter;
z. The manner in which the queition of South WestAfricahad
been dealt with in the United Nations in previoyears;and

reerence."estrictive naturof the Ad Hoc Cornmittee's tems of

The Union's frustration of the Ad Hoc Cornmittee'sefforts at
negotiation constrained the Cornmittee to conclude in its A~inual
Report for the year 1952: "As at the date of the preçent report,
18 November 1952c ,onsultationsbetween the Committee and the
representative of the Govenunent of the Union of South Africa
have been inconclusive and have notbrought about an agreement
concerning meanç of implementing the advisory opinion of the

*As paraphrased in the SummaqRecords othé0Ad Hoc Cornmittee, U.N.
Doc.No. AIAC..+g/ÇR.2at3 {~ggr). MEMORlAL OF ETHIOPIA 59

International Court of Justice as required by the resolution of the
General Assembly." l

(4) 1953

In1953t, he Ad Hoc Cornmittee resumed its effortto negotiate
with the Union Government in an attempt toreach a settlement in
accordance with the Mandate and the Court's Advisory Opinion,
Asa consequenceof the failure ofthe Ad Hoc Committee to reach
a settlement with the Union, the Eourth Cornmittee, at the 364th
meeting on November 12, 1953, a~opted a resolution sponsored
by 15 rnembers of the United Nations, indusing Liberia, setting
up the Committee on South West Africa. The General Assembly

in the 8th Session approved the proposal, embodied in General
Açsernbly Resolution 749A (VIII) of z8 November, 1953. The
Applicant voted with the rnajonty.The resolution stated :
"The General Assenably..
I.Cornends the Ad Hoc Committee on South West Africa for
its earnestand constructive effortsto finda rnutually satisfactory
basiç of agreement;

2. Recordswzth deep reg~etthat the Government of the Union
ofSouth Africacontinuesin itsrefusalto assistin the implernentation
of the advisory opinion of the International Court of Justice con-
cerningSouthWestAfrica,andcontinues tomaintain that the Union
of South Afnca has no international comrnitments as the sesult of
the demiseof the LeagueofNations,and that the Government of the
Union of South Africa is prepared only to entes into new arrange-
ments for the Territory of South West Africa with the Principal
Allledand Associated Powerç of the Firçt World War (France, the
United Kingdom and the United States of America). and not with
the United Nations;
3. Notes with concern that, as required by paragraph 6 of
General AssembIy resolution 570A (VI), the Ad Hoc Cornmittee
was unable toexaminereports on the administration ofthe Temtory
of South West Afriçabecauseagain no such reportsweresubrnitted
by the Government of the Union of South Afnca;
4. Notes with fslrther r8grthat the Union of South Africa has
sefused toCO-operatewith the United Nations çonçerning the sub-
mission of petitions in accordance with the procedures of the
MandatesSystem ;

'5. Notes.the contents of the communications relating to South
West Africareceived by the Ad Hoc Committee in 1951, 1952and
1953fromsources within and outside the Territory of South West
Africa and contained in the aforeçaid reportsof the Ad Hoc Com-
mittee;
6. Afirms that, in order to implement the advisory opinion of
the International Courtof Justice with regard to South WestAfrica,
U.N. Doc. No. Alzzr51 at5,para.22 (1g5a).
U.N. DOC.No. AIC.qlSR.364 at 312-314,paras.30-42 (1953).
U.N. Gen. Ass.Off.RK. 8th Ses..Supp.No. 17 at26 (Alz630) (1953).60 SOUTH WEST AFRICA

(a) The supervision of the administration of South West Africa,
though it shouIdnot exceedthat which applied under the Mandates
System, should be exercised by the United Nations; judicial super-
vision by the International Court of Justice, which the Union
Government is prepared to accept, is not in accordance with the
advisory opinion expressed by that Court and accepted by the
General Assembly;
(b)The Union Govemment should assume its obligations to the
United Nationsand not,as proposedbythe UnionGovernment, tothe
three Powers (France, the United Kingdom and the United States
of America)as principals;

7.Apfieals solmnLy to the Government of the Union of South
Africato reconsiderits position, and urgesit to continuenegotiations
with the Committee on South Weçt Africa, established under
paragraph 12 below, in accordance with the aforeçaid pinciples for
the purpose of conçluding an agreement providùig for the full
irnplementation of the advlsoryopinion of the International Court
the administrationgeofithe Territory of South West Africareandtston
transmit to the United Nations petitions from individuals or groups
of the population of the Territory;

8. Recallsand reafirms that the Territory of South Weçt Africa
is a Tersitory under the international Mandate assumed by the
Union of South Africaon r7 Dgcember 1920;
g.ReafirmsJzcrther that the Union of South Afriça continues to
have the international obligationsstated inArtic22 ofthe Covenant
of the League of Nations and in the Mandate for South West Africa
asweflas theobligation to transmit petitions from the inhabitants
of that Territory,the supervisory functions to be exercised by the
United Nations to which the annual reports and the petitionsare
to lxçubmitted ;

IO.Cowiders that without United Nations supervision the
inhabitants of the Territory are deprived ol the international super-
vision enviçagedby the Covenant of the League ofNations;
Ir. Beliaves that it would not fulfill its obligation towards the
inhabitants of South West Africaif it werenot to assume the su r-
visory responsibilities with regard to the Territory of South \Re;t
Africa which were formerly exercisedby the League of Nations;

12. Establiskes, until such time as an agreement is reached
between the United Nations and the Union of South Africa, a Com-
mittee on South West Africa, consisting of seven Members, and
requests this Committee to:
(a)Examine, within the çcope of the Questionnaire adopted by
the PermanenM t andates Comrniççion of theLeague of Nations in
1926,suchinformation and documentation as may be available in
respectof the Territory of South West Africa;
{b) Examine, as far aspossible in accordance with the rocedure
of the former MandateS system, reportsand petitions wK ich rnay
be subrnitted to the Cornittee or to the Secretary-General; MEMORIAL OF ETHIOPIA 61
I
(c) Transmit to the General Assembly a report conceming
conditions in the Territory tahg into account,asfa aspossible,
the scope of the reports of thePermanent Mandates Commission
of the Leagueof Nations;
(d)Frepare, for the consideration of the General Assembly, a
procedure forthe examination of reports and petitiowhich should
conform asfar aspossible to the procedure followedinthiçrespect
by the Assembly,the Counciland the Permanent Mandates Com-
mission of the Leagueof Nations;
13.Bzcthmizesthe Committee to continue negotiations with the
Union of South Africa in order to implement fully the advisory
opinionof the International Court of Justiceregardingthe question
of SouthWest Africa;

14. Regueststhe Cornmittee to submitreports on its activittos
the General Asçemblyat its regular sessions."

It isnoteworthy that by the Iùregoing resolution the General
Assembly charged the Comrnittee of South West Africa not only
with the duty to negotiate, but, also the duty to perform, to the
extent practicable, the functions perfomed by the Permanent
Mandates Commissionduring the League of Nations period.
The General Assembly'ç action in so doing was consonant with
the Court's Advisory Opinion, upholding the United Nations' power
and duty ta supervise the administration of the Territory.
During 1953 he Fourth Cornmittee again considered the ques-
tion ofSouth West Africa.At its meeting on November 6,1953 t,e
Union Delegate, Mr. Jooste, again explicitly repudiatedthe Court's
Adviçory Opinion, stating :"...The International Court also ex-
preçsed the view that the obligations which South Afnca had
aççurned originally with regard to the sacredtrust rernainlegally in
force-i.e. that SouthAfricacontinued to haveaninternationalrespon-
sibility with regardto the sacred trust. This view was snbçcribed
to by the majority in the United Nations. My Government, on the
other hand, did nat-and infact does hot-agree with this view-

holding, that since one of thtwo partiesto the original contractual
arrangement had fisappeared, the mandate had Iapsed and that
it could no longer be regardedas a legally binding contract. Here,
therefore, we have an important divergence of views-where, if a
settlement was to be found, concessio wosuld have to be made."

The Comrnittee on South West Africa çomrnenced its dual
function of negotiation andsupervision earIyin 1954. Participation
by the Union was, of course, an essential precondition of fruitfvl

negotiation. With respect to its reporting function, theCommittee

l Press Releaee, Delegation of the Union of Soutothe UnitedNations.
November 6,1953,at 4.62 SOUIH WEST AFRICA
has regularly rendered reports to the Àçsembly, notwithstanding

the Union's failure to CO-operate.
On January 21, 1954t, he Chairman of the Committee on South
West Africa addressed a communication to the Minister of Ex-
ternal Affairsof the Union inviting his Government to designate a
representative to meet with the Cornrnittee in order to "confer
with it". By the same letter the Committee invited the Union to
resume the submission of annud reports.
The Union Government replied by a communication dated
Mach 25, 1954 ,igned by Mr. G. P. Jooste, and addressed to the
Chairman of the Comrnittee on South West Africa.This commu-
nication setsforth basic elernents of, and confirms, the dispute
between the Union Governrnent and the Members of the United

Nations, including the Applicant :
"I have the honour to acknowledgereceiyt of your letter TRI.
rjz 1/06dated 21 January, 1954 ,nformingme that the Cornrnittee
on 6 outh West Africa established by resolution 749A (VIII) of the
General Assembly to the United Nations has now been formalIy
constituted andthat theCommitteeat its 2nd meetingon 21 January
1954 ~equested youtoinforrnme that, in accordancwith paragraph
13of the resolution, it is ready to continue negotiations withe
Government of the Union of South Africa in order ta irnplement
fully the advisory opinion .of the International Court of Justice
regarding the question of South West Africa. The Cornrnitteethere-
foreinvites the Guvernmentof theUnionofSouthAfrica todesignafe
a representativeto conferwith it.

establishedby resolution 449tAo(V)wofh13hDecember rggr,tand in a
wiitten communication tothat Cornmitteethe Union Government's
representative to the United Nations informed the Committee of
the standpoint of the Union Government in regard to South West
Africa, namely:

"(a)The Union Government maintain that the Mandate in
respect ofSouth West Africahas lapsedand that whilethey continue
to administerthe Territory in the spirit the trust theyoriginaliy
accepted, theyhave no other internationalcommitments as a resvlt
of the derniseofthe League [of Nations].Neverthelesç,in order to
find a solution whichwouIdremove this question from the United
three remaining Miexf and Associated Powers,namely France, thehe
United Kingdom and the United States.

"(b) The Union Government'sresponsibilitiesin regardto South
WestAfricaçhould not in any way exceedthose whichthey assumed
under the Mandate.
"The UnionGovemmen thavemaintained that proposais hitherto
made by the Ad Hoc Comrnittee have not met these two basic

%S.,eSupp.oMo.ei4at 6 (A12666)(1954). AfricaU.N.Gen. Ass.OffRec. 9th . .
MEMORIAL OF ETHIOPIA 63

elements.Tkey would not, t'derdia,safeguard themle of unanimity
which waç provided for in the Covenant of the League of Nations
whilst they would confer on certain countries, who are Members of
the United Nations but who were not mernbers of the League,
rights which they didnot have under the Mandates System of the
League .
"3. By resolution 449A (V) of r3 December r 51, an Ad Hoc
Committee was established for the purpose of con erring with the
Union ofSouth Africa 'concerning thefirocedzcrmeasuyesnecessary
for implementing the advisory opinion of the International Court
of Justice'.
"By resolution 651 (VII) o20Decembes ~952,the Ad Hoc Com-
rnittee was reconstituted to resume negotiations with the Union
Govemment. The Committee was çalled upon 'to confer with the
Government of the Union of South Africa concerning mcans of
implementing the advisory opinion of the International Court of
Justice;
"4. Despite lengthy discussions between the representative of
the Government of the Union of South Africa and the Ad Hoc
Committee in terms of the above-mentioned recommendations it
was not possible to reach agreement. The proposals made by the
Union Government were not acceptable to the Cornmittee because
it did not consider that the provided means whereby the advisory
opinion ofthe Internationa7Court of Justice could be implemented
and becausethe proposals dia not recognize the pxinciple osuper-
vision of the administration of South West Africa by the United
Nations. On th other halzthe UaionGoverwmedare motprefiared to
ci.a paragr$#2labove,(Ttalics added.)ibasirceq~iremewtass set ozcf

"5. As the terms of reference of your Committee appear tobe
even more inflexible thanthoseof theAd HocCornmittee the Union
Government are doubtful whether there is any hope that new
negotiations within thescopeof your Committee's temsof reference
wiiilead to any positive resuits.
"6. Your letter also refers to the subrnission of reports on,the
administration ofthe Territory ofSouth West Africaand pet~tions
from individuals or groups of the population of the Temitory. Th
UvaionGovernwzenthave Nevg recognizedany obligatiw to subazf
re$ortsaltd etitioatoany intermtiortalbody sincethedemiseof th
Leagueof d ations. (Italics added.)
report on the administrationofdSouth West Africa for 1946,whiche
had been laid before the Union Parliament.
"Itwas then cleady stated that the UnionGovernment had ?tno
time recognized anylegal obligation on their part to çupply irffor-
mation on South West Africa to the United Nations, but in a
spirit of goodwili, co-operation and helpfulness offered to provide the
UnitedL Nations with reports on the administration of the
territory, with the clear stipulation that this would be done on a
voluntary basis,for the purpose of infmmatiofi only and on the
distinctnderstanding that the United Nations had no supervisory
jurisdiction in South West Afnca. 64 SOUTH WEST GFRICA

"The provision of this report, however, affordedan opportunity
forthe utilization of the Trusteeship Counciland the Trusteeship
Committeeas a forumfor unjustified criticismthe Union Govern-
ment'sadministration, not only in South West Africa but in the
Unionas weU, with undesirable effeçts on the harmonious inter-
racial relations which had previously existed and wkich were so
submitting a report had created in the minds of some Memberçof
the United Nations an impressionthat the Trusteeship Councwas
cornpetent to make recornrnendations on rnatterç of interna1
administration of South West Africa.
"On 11 July1949 ,letter was addreççedto the Secretary-General
of the United Nations bringing this unfortunate development to his
noticendinfoming him that in the interests ofefficientadministra-
tion the Union Government had decided to discontinue the sub-
missio ofreports."1

By letter datedApril I, 1954, the Chairman of the Committee
on South West Africa repliedto the above-quoted communication.
The Chairman expressed the Cornmittee's regret that the Union's
replyand itsfailwe to appoint a representative to confer with the
Cornmittee could only be interpreted as a refusal to CO-operateor
negotiate with the Committee. Since it was clear that the Com-
mittee would not receive an annual report from the Union, the
Committee, by a letter dated May 12, 1954, through its acting
Chaiman, inforrned the Union of the date when it would be ready
to examine available information and documentation in respect

, to the Territory and invited theUnionto authorize a representative
ta meet with it.The Union answered that it had expressed its
position in its previous letter and that it had not changed.
Deçpite the Union' non-cooperation, the Committee waç able
to publish its first annual report en conditions in the Territory in
1954. The Committee derived its information from â variety of
available sources. Chief seliancwas placed by the Cornmittee on
what it described as "officia1documentation issued by the Govern-
ment of the Union of South Africa and,under its authority, by
the Temtorg of South West Africa.'"
The report condemned the Union's administration of the Terri-
tory,coicluding that :

"..after thirty-five yearof administration under the Mandates
System, the Native inhabitants are stiP1nat participating in the
political develo mentof the Territory, that their participation in
that the social and educational services for their benefit are far
frorn satisfacto..The Committee regrets the failureof the Union

lId. at6 and 7.
.Id. a7 and 8.
Id.d.at 14. 6.
MEWIORIAI,01; ETHIOPIA
Governmeiit ta resurncsuhinissioilof tcportç oiithe admi1îistr:ition
ofthe l'erritoryoiSouth \L'est Africa aswcll as its failurto appoint
a duly authorized reprcsentative to meet witli the Comrnittcc in
order to examine tlie information ancl clocilnientation that wns
available to itwitlia view to preparing tlir:prcscnt re~iort.""

The General Asçcrnbly in Iicsolution 851 (IX) of 23 November
r954' expressed appreciation for the work done by the Cornmittee,
The Asçembly noted "the report and observations regarding cori-

ditions in the Tetritory of South West Afriçü, contsined in annex V
of the report of the Cornmittcc," ancl noted ''with cuncern tliat,
in the opinion of the Committee, tllc administration of South West
Africa is in several aspects not in conformity with thc obligations
of the Government ofthe Union of South Africa under the Rlalidatc."
On the same date, thc General Assembly prissed another resolu-
tion, 8j~ (IX) of 23 Novernbcr ~954,~ reiterating prios reçolutior-is

"to the effcct that the Territory of South West Africa be placed
under the International Trusteeship System."
The Fourth Committee again also consiïlered the question of
Soutli West Africa at its 1954session.
During the debates in the Fourth Cornrnittcc the Union's Ucle-
gate, Mr. D. B. Sole, adverted to thc filure of thc Govesrzmcnt
and the Ad Hoc Cornmittee to reach a çettlcment. He rcitcrrited
the Union's rejection oi the Court's advisory opinion, and stntcd

to the Conirnittee:
"...one principal reason why a settlement had not bccr-iaeliicvcd
had been thc Ad Hoc Cornmittee" snsislencc that negotintioiis
must be eittzer with the United Nations or one of its agericics.
The Unian of South Africzi had refused to ncgotiate on that hasis
because of its conviction tliat thconclusicn oI tinyinstrument ivith
the Unitecl Nations would oblige it to accept responsihilitieçmore
onesous than those which it had a~surned under thc hIai~düte.."

The representative of Liberia, at a meeting of the Fourth Corn-
mittec on October 15,1954; expressed hiç Government's viewç, in
opposition to those of the Union. He reminded the Union Delegate
that the 1nternational.Court of Justice had made it cleat that
Soutli West Africa was still a Mandated Territory. The Liberia11

delegate pointed out to the Union that, as a mandatory power, it
had the opportunity to place tlze Territory under the Trusteeship
System, in accordance with Cliayter XII of the United Nations
Charter. Instead of doing so, the Liberian delegate rerninded the
Union, it had elected to administer the Territory in accordance
with the '"çacred trilçt" set forth in Article zz of the Covenant.

Id. at gr,paras 160-~bi.
U.N. Gen. Ass.Off. liec. 9tSess.,Supy. Xo. 21 ,it28 {A/zBgo) (1954).
Id. at 29.
' As paraphrased in the Summary Records of the 4th Co~nmittee 1J.N. Doc.
No. AiC.4/SR.399 at 15-16, para19(1954). 66 SOUTH WEST AFRICA

Inasmuch as South Africa had chosen to do so, it couldnot nowdeny
that whatever rights it poçsessed in connection with South West
Africa derived from the Mandate. The Liberian delegate remindeci
the Union that since the Covenant provided that the terms of the
Mandate could not be rnodified without the permission of the Coun-
cilof the League, the Union was not entitled to do so unilateraliy
by the process of annexation of the Territory. Under Article 22
of the Cnvenant, the lnterest of the inhabitants of South West

Africa was paramount. Hence, said the Liberian delegate, itwas the
duty of South Africa to assist the inhabitants to develop politicdly,
economically and educationally, with a view towardç ultimate self-
determination. Under the Mandates System, the mandatory power
was accountable for its actions to the Council of the League.
Accordingly, the Union was bound to exercise its functions in
regard to South West Africaunder international supervision and to
submit reports on its activitiesl
The Liberian delegate disputed the contention of the Union
Government that the Mandate had lapsed with the demise of the
League. In the view of the Liberian Government, "if it (South
Africa) continued to insist that the Mandate had lapsed, it must

agree that its authority to administer the Territory had alsolapsed
unless, of course, it was merely exercising the rule of for~e."~
The Liberian delegate concluded that "the efforts of the Cam-
mittee on South West Africa to negotiate with the Union of
South Africa had pzoved futile." 3
While the Applicant and other rnembers of the United
Nations were inforrningthe Union of their views, and were urging
the Union to implement the Court's Adviçory Opinion, the Union
bypronouncernents from the highest level of authority was making
its contrary views clear.
On August 24,155U 4,rMalan, then South African Prime Minister,
stated that "the foIloM.ingfive propositions ..refiected the position
for interna1 politica1 and administrative purposes in the territory :

(1)that the mandate no longer existed; (2)that the Union and South
West Africa had become one tenitory and one people so fax as
the outside world was concerned; (3)no other territory had the
right to interfere in mutual arrangements between the Union and
South West Africa ; (4) South West Afnca had outgrown its status
as a rnandated territory and had become sovereign by sharing
the sovereignty of the Union; (5) the benefits enjoyed by South
West Africa in financial arrangements with the Union were more
than those obtained by the Union in terms of rnoney."

As paraphrasedin the Surnrnary Records of the 4th Cornmittee, U.N. Duc.
No. A[C.q(SR.407at62-63,para.14 (1954).
Id. at 6para.15.
Id.at para. r7.
Chronology01 in~emattonn.iEumts, Vol. rNo. 17.rg hugurt-r September
1rg54,at567- MEMORIALOF ETHIOPIA , 67

The Union thus explicitly rejected the Advisory Opinion, in
which the Court declared: (1)that the mandate continues to exist;
(2)that the Territory of South West Africa is a mandated territory ;
(3) that members of the former League of Nations continue to have
an interest in the proper exercise of the mandate; (4) that the
Cinion may not unilaterally alter the terms of the mandate.

A further issue which arose in 1954 concernecl voting in the
General Assembly. The Court, in its 1950 Advisory Opinion,
ruled that the United Nations was the appropriate organ to carry
on the supervisory functions formerly performed by the League.
The Union Government had argued that under the League's voting
system, (luestions regarding mandates required unanimous votes
tvhereas such questions under the General Assembly's Kules of
Procedure, as "important questions", would require a two-thirds
majority vote. The Assembly therefore addressecl to the Court the

question whether the voting rule adopted by the General Assembly
was a correct interpretation of the Court's 1950 Advisory Opinion.
The Court ruled in 1955 that, since the supervisory functions were
to be performed by the General Assembly, it would be appropriate
to follow the Assembly's normal methods of voting procedure.
The Union refused to participate in the proceedings before the
Court in 1954 . owever, afterthe opinion was rendered, the Union
expressed its views thereon. Mr. Eric Louw, then, as now, Minister
for External Affairs, referred to the Court and its Opinion in the

following terms :
"We do not care tuppence whether the United Nations observes
the two-thirds majority rule or the unanimity rule in dealing with
South West African affairs because we have consistently said
the United Nations has no nght to concern itself with the affairs of
South West Afnca. ..
"It is suggested that the International Court has by this decision
implied that the United Nations need not follow the same rules as
the League of Nations in regard to mandated territories. On the

other hand, the Court at a previous hearing held that the same
principles should be applied by the United Nations as were applied
by the mandates commission of the old League.
''Ifthisinterpretation is correct, the Court seems to have departed
from its previous attitude.
"It is obvious that the reason why the Court has taken up this
attitude is that it did not want to accord the same veto right to
those countries which had agreed to recognise the jurisdiction of
the trusteeship committee of the United Nations.
"This rather suggests that the Court in this case seems to have

been guided by other than stnctly legal motives." l
Mr. Sole, Delegate of the Union to the United Nations, officially
advised the Fourth Committee of the General Assembly "that his

'2jj Soulli Africjrr, June2j. 195568 SOUTH WEST AI~RICII
Government could not recognize or accept the 1955 advisory
opinion. There were various contradictions to be found bctween

statements in the Court's 1955 opinion and statements in its earlier
opinion, but he did not propose to analyse them as they bore no
relation to his Government's attitude on the matter.
"His Government did not recognize the General Assembly's
competence to esercise any supervision over the Territory of South
West Africa. As the authority rcsponsiblc for the adiniiiistration
of South West Africa, his Government was tliere/ore9totco?tcertzed
as to wlzatvoting procedzrrewas adopted inthat respect by the General
Assembly oraslowhetheril Izadllieendorsevtent O/ the Cozrrt'sopinion.
For that reason South Africa had made no submission to the Court
in respect of the General Assembly's 1954 request for an advisory
opinion. His Government's attitude derived from the stand it had

taken in relation to the original 1950 opinion, of which the 1955
opinion was mmely an interpretation." (Italics added.)

(6) 1955
In January, 1955, the Chairman of the Committee on South West
Africa again invited the Union to designate a representative to
confer wlth the Committee.2
The Union repiied, by letter of May 21, 1955, and reiterated its
previous views that the Mandate had lapsed and that the Union
had no international commitment,in view of the dissolution of the
League. The letter stated: "As there has been no material change
in the position as outlincd in my communication of 25 March, 1954,

the Union Government has come to the sanie conclusioii as they
did last year, namcly, that they cnnnot scc thnt further negotint'ions
would lead to any positive results." '
The refusa1of the Union Government to meet with the Committee
on South West Africa caused the Committee's Chairman to \\!rite
as follows to the Union on June IO, 1955: "From this statement
the Committee can only conclude that the Union of South Africa
is not prepared to assist the Committee in the discharge of its
mandate by the General Assernbly, in particular that the Govern-
ment of the Union of South Africa is unwiliing even to enter into
negotiations in order to imylement fully tlie Advisory Opiiiion of
the International Court of Justice in regard to the question of South
West Africa. The Committee wishes me to state that it siiicerely
regrets they cannot accept this attitude of the Government of the

Union of South Africa."
In iine with the Union's policy toward the Committee on South
West Africa, the Union declined again in 1955 to furnish to the

' -4sparaplirasecithe Suriirnary Records of tlie 4th Cornmittee, U.S. Doc.
No. Report of the Corninitteeon South \Vest :\frica. U.N. Geii. Ass. Off. Rec. 10th
Sess.. Supp. N12at 6 (A/2913) (1955).
Id. at 7. MEMOKIAL 01;ETHIOPIA 69

Committee information ori the Territory. Nevertheless, the Com-
mittee reported to the General Assernbly, in accordancc with its
terms of referençc. The report discussed political, econoniic, social
and educational conditioris in thc Texritory. The report concluded:

"The Cornmittee reiterates that aiter nearly four decades of
administration under the Mandates System, the Native inhabitants
are still not participating inthe political development of the Terri-
tory, their participation in the ecanomic development is restricted
to that of labourers and the social and educatianal services for their

benefit are far from satisfactory. Racial discrimination is prevalent
throughout the Territory. After exarnining for the second successive
year conditions in the Territory, the Committee has found no
significant improvement in the moral ancl material welfare of the
Native inhabitants. It is apparent that the main efforts of the
Administration are direcled almost excl~rsively in favour of
the European inhabitants of the Territory, often at the expense
of the Nativc population." '

Thc Cornmittee's report was approved by the General Assernbly
by Resolution 941 (X) of December31, 1955, thc Apylicant voting
with the majanty.
The Cornmittee's report was also the çutject of discussion irz
the Fourth Cornmittee of the General Assembly. At its qgrst
session, on October Ir, 1955, Illr.D. B. Sole, the Union represent-
ative, commented that "In view of liis Government's contention
that the Mandate had lapsed, and in view of the circurnstances
in which the Committee on South West Africa had been established

it was unable to rccognise the legaIity of the Cornmittee, or of
its rcyost, or crfthe resolutions it had subrnittcd fconsideration. "
At the close of195 j,the General Assembly by Kesolutioilg42 (X)
requested the International Court of Justice to render an advisory
opinion on the legality of granting oral hearings to petitioners.
This qiiestitin was raised inasmilch as it had not becn the practice
of the Permanent Mandates Comnzission to grant such hearings.
On the other hand, the Permanent Mandates Commission had the
benefit of CO-aperatianfrom the Union in accord with itç obligation

as Mandatory. In view of the Union's unwillingness to transmit
written petitions Zo the United Nations, or, indeed to forward any
informationwkatever, the General Assembly consjdered it necessary
to acquire information from other available sources, including oral
hearings. The Assembly, however, thought it appropriate that an
Advisory Opinion shauld be sought before it authorized the Com-

Id. a32,para. 198.
U.N Gen. Ass OR. Rcc. 10th Sess.,Supp No. rg at13 (A/jrrb) (rqgj).
As parnphrased in the Siimmary Records ofthe 4th Committee, U.N. Dot.
No' U.N.4Gen. Ass Off. Kec. 10thSess.,Supp.No. 19 at24 (A/~rr6) (195.5)70 SOUTH WEST AFRICR
]nittee on South West Afnca to grant oral heax-ings. The Court's

opinion was rendered in 1956, and is nated in the next subsection.
(7) 1956
At the beginning of 1956, the fi air m ofnthe Committee on
South Llreçt Africa again commvnicated with the Union Minister
of Externd Affairs, inviting the Union to designate a representa-

tive to nieet with the Committee to negotiate.' The Union repeated
its priospractice, declining the invitation. In substance, the Union
advised the Cornmittee that itadhercd to the position outlined by
the Government in its previous refusals to negotiate with the
Committee and repeated that the attitude of the Union Govern-
ment remained unchanged.'
Thc Cornmittee's report for 1956 advised the Assembly:

"Co-operation and assistance have once more been refused : the
Committee has had the benefit of neither the systematic subrnission
of information by the Mandatory Power nor the participation of a
representative of that Governrnent in its work. In denying çuch
CO-operation and assistance the Union Governrnent continues to
show diçregasd not only of the various resolutions previously
adopted by the Açsembly, but also of the advisory opinions of

the International Court of Justice, a fact whicb the Committee,
and no doubt the Asscmbly, cannot fail te note with deep regret
and concern".
At the end of its report forrg56 the Committee made the following
concluding remarks :
"For thé third year in succession, the Cornmittee lias been
linableto escapethe conçlizsionthat conditionsiritliTerritory aftcr
nearly four decades of administration under the Mandates System
are for the most part-and particularlyfor the 'Native' majority
-still fatfrom meeting in a seasonableway th? standards of either
endeavor or achievement implicit in the purposes of the Mandates
System and in the attitudes yrevajling generally today in respect
of peoples not yet able to stand by themselves. The 'Native' of
South West Africastill haç nopart whatsoever in the management
pf the Territory's affairs; he livesand works in an inferior and
subordjnate status in relation to a privileged 'European' ininority
and his opportunitiesforadvancement in his awn right are liniited
not only by the inadequacy of technical facilities but also by a
restrictive sÿstemof law and practice. The Committeedeplores the
existing conditions of the 'Native' and other 'Non-European'
inhabitants and the slowrate of their improvement. It içeven more
seriouslydisturbed by the absence of any sign ofthe radical changes
whichmust be madein these policiesif they are to conforwith thc 5
principles which ledto theestablishment of the Mandates System.
It finds no ground for altering its beIiefthat the main efforts being

lReport of the Cornmittee nnSouth West AfricaN.UGen, Ass.Off. necIrth
Sess.,Supp. Mo.rz at 4(A/315r) jrg5.5).
fa'.t 27,para.164. MEMORTAL OF ETHIOPIA 7I

made in the administration of the Territory are directed almost
exclusively in favour of the 'European' inhabitants. eften at the
expense of the 'Native' population.
"Ta this grave concem over conditions as they exiçt in the
Mandated Territory, the Committee has felt obliged t~ add its
profound rnisgivings as to the future course of the administration
of the Territory. These rnisgivings arifrom actions and statements
of thc Union Government itself: in particular, the transfer to its
direct control of 'Native" administration in the Territory, and its
stated aim that a policy of racial segregation be applied in the
Territory ;and the steps taken towards integration of theTenitory
with the Union on the political levelas well,by meansofparliamen-
tary representation, considered in the lighofal1the circumstances
which at present surround it.

"In view of the foregoing account of conditions in the Territory,
al of these elements constitute, in the Cornmittee's opinion, a
situation which is neither in conformity with the principles of
the Mandates System nor with the Universal Declaration of Human
Rights, nor with the advisosy opInions of the InternationalCourt
of Justice, nor with the resolutions of the General Assembly.
Accordingly the Committee considers that the situation of South
West Africa requires close re-examination at the present tirne by
the Assembly, particularly in respect of the failureof the Union
Government to co-operate in the implementation of the advisory
opinion of the Court ofII July 1950, as endorsed by the Açsernbly
in resolution 449A (V)of ~3 December 1950. l"

The foregoing report was approvedby the General Assembly by
Reçolution 1054 (XI) of 26 February, 1957,~the Applicant voting
with the majority.
The Fourth Cornmittee considered the question of South West
Africa again in 1956, asit had for many yearç,.
The Liberian delegate atthe 575th meeting of the Fourth Com-
rnittce on Decernber ~4, 1956~3 expreçsed in substance the viewç
of his Government as follows:

"In view of the fact that theUnionof South Afriça was a rnernber
of the United Nations anda signatory to the Charter, under dich
it had certain obligations as well as rights,that South West Africa
was a Mandated Tcrritory whieh the South African Government
had held as a çacred trust, and that the Charter of the United
Nations provided for the protection of the fundamental rights of
the indigenous inhabitants, itwas clear that the'abus oefthe inter-
national mandate by the South African Government could not and
muçt not be perpetuated."

l Id.atparas. 166-r68.
U.N.Gen. Ass.Off.Rec. 11thSes.,Supp.No.rf at 28 (81357and Corr.I)
(195U.N. Gen. kss. Off.Rec. rlth Ses., 4th Comm. Surnmary Records of
Meetings, 1956-195at 132.
Id.atpara.29. 72 SOUTH \VES'I' i\I'HICA
The Union rcpcated its rejection of the forcgoing contentions.
The Union Prime Minister stated before the Union Çenate:
..."it iswell vrithiii Our power and ftilly within our power to

iilcorporate Soutli Wcst Africa as part of the Union. Up to now we
have cieclared ~intothe world that legally and otherwise that is the
position, but that in tlie meantirne we are prepared, although we do
not for onc inornent recognize the rights of the United Nations
organization, even should we one day incorporate South West
Africa, togovern Soutli West Gfricrtin the spirit of the old mandate.
So, whether we will procecd at a later stage to carry out and put
into effect u-hat WC regard as our rights over which nobody has
anything to say, that tvill depend on how circumsta~ices develop in

the future." 1
The Court in 19 56 reridered its Advisory Opiniori oii the question
of granting oral liearings to petitioners. The Court concluded that
it "would riot be inconsistent with its Opiiiiori of rx July 1950 for
the Gencral Assembly to authorize a procedure for the grant of
ord hearings by thc Cornmitter: on South Wcst Africa to petitioners
who had already submitted written petitions: provided that the
General Açse~nblywas satisfied that sudi a course was necessary

for tlie maintenancc of effective international supcrvision of the
administration of tIîe A1iandatedTerritorÿ,"
In a separate opinion, the late Judgc 1,autcryacht espressed the
view tliat "the Opinion of Ir July I 50 has bcen accepted and
approved by the General Assernbly. datever may be its bindiiig
force as part of international law-a question upon which the Court
need rzot express a view-it is the law recognized by the United
Nations. It contii~iics tobe so although the Government of Sont11
Africa has declined to acçept it as binding upoii it aiid although it

has acted in disregard of the international obligatioris as declared
by the Court in that Opinion." Conçequeiitly, \vent OR Judge
Lauterpacht, since the Union has acted in disregard of its obli-
gations, "the potency of the two principal instruments of super-
vision içsubstantially reduced and ..other rneaiis, not furidamen-
tally inconsistent with that Opinion, must be found in order to give
effcct to its essential purpose.The crucial question which the Court
has now to answer is: Are oral hearings one of these means? Are
they truly necessary and effective for filling thgap that has arisen?

Do they secvre the reality of the task of supervision otherwise
reduced below the level conternplated by and uliderlyng the
Opinion of 1g5o ? 1 am of the view that, inthe circumtances, they
fulfilthat purpose."
l union O/South Africn,Serralihbales,rg56,No. 15,cols. 3631-32citedin
Report ofthe Cornmittee onSouthWest Africa, U.N, Gen. AOff.Rec.12thSess.,
Supp. NO. 12at7, para.12(A13626) (iq57).
Admissibiliiyof hearirigspeiiitioners byCornmitletonSouth West Africn,
. Rdvisory Opinion of Juncrst, 1956:I.C.J. 'Reports 1p.nj at32.
Id.at46-47.
Id. agr. SOUTH WEST AFRICA
74
The Committee's 1957 report concluded as follows:

"The continued and increasing political, social and economic
pressures and restrictions imposed in al1walks oflifeon the vast
majority of the inhabitants and especially on the indigenous
African population reveal, in the Committee's opinion, a policy
intended to give paramount importance to the interests of the
population of European arigin, to maintain and reinforce the
entrenchment of government control in the hands of this rninority,
and to secure x an ultimate goal the incorporation of the Territory
into the Union of South Africa in a rnanner which would represent
a modification of the international status of the Territorby meanç
contrary to the relevant international agreements, the advisory
opinion of the International Court of Justice ofII July 1950 and

the interestsofthe vast rnajorityofthe inhabitants of the Territory.

"The Cornmittee considers that existing conditions in the Terri-
tory and the trend of the administration represent a situation
contrary to the Mandates system, theCharter ofthe United Nations,
the Universal Declaration of Human Rights, the advisory opinions
of the International Court of Justice and the sesolutions of the
General Assernbly.

"The Committee, after examining conditions in the Tenitory
for thQfourth successive year and after studying the statements
of policy made by the Prime Minister and other high-ranking
oficials ofthe Gnion Government, has found no evidence that the
Mandatory Power intends to change the course of the adminis-
tration of the Territory to bring itinto conformity with the Man-
dates syçtem. The Committee therefore considers that the General
Assembly should weigh the gravity of the present situation and
consider the need for acting without further delay in the matter
by taking irnmediately çuch measures aç are possible and feasible
to ensure and to çafeguard the well-being and developrnent of the
inhabitants of South West Africa and to preserve the international
status of the Tenitory pendzng its being placed under the Inter-
nationai Trusteeship System." 1
qe Cornmittee report waç approved by the General Assernbly

by Resolution 1140 (XII}of 25 October 1957,zthe Applicant voting
with the majority.
The Fourth Committee at its 659th meeting on Octobec 2,'1957,
again had on its agenda the report of the Committee on South
West Africa. In the course of the general debate at that meeting,
the Liberian delegate agai,n disputed the contentions of the Union
Government. He repeated the views of the Liberian Government,

VId.at 26,paras. 159, 161-162.
* U.N.Gen.Ass. OffReç.12th Sas.,Supp.No. 18 at 2(A(3805)(1957).saying in substance that "The Union of South Africa had violated
the Mandates Systern, the Charter of the United Nations, the
Universal Declaration of Human Rights, the advisory opinions
of the International Court of Justice and the resolutions of the
General Asçembly. Sorne action should be possible if all the hlem-
bers of the United Nations were to co-operate. The contention of
the Union Government that the Mandate had lapsed with the

dernise of the League of Nations was neither legdb nor rnorally
valid."
By Resolution 1060 (XI) of 26 February, 1957, the Appliçant
voting with the rnajority, the General Asçembly had requested
the Committee on South West Africa to study the question of
"What legal action is open to the organs of the United Nations,
or to the members of the United Nations, or to the former Members
of the League of Nations, acting either inchvidually or jointly,
tu ensure that the Union of South Afnca fulfillç the obligations
assumed by it under the Mandate, pending the placing of the

Territory of South West Africa under the International Trustee-
ship Systern ?" Later the çame year, the Cornrnittee çubmitted a
sperial report to the General Assernbly containing its answers to
the question posed by the above resolution.

In 1958, the Cornrnittee on South West Africa seported back to
the General Assernbly, suggeçting various questions which nlight
serve as the subject of an advisory opinion as it had been re-
queçted by Resolution 1142 B (XII) of 25 Oçtober 1957.The
Committee divided such questions into two categories : (a)thoçe
relating to the international status of the Territory, and (b) those
relating to the moral andmateriai well-being and social progress of
theinhabitants. Includedin the former category were :representation

of the Territory in the Union Parliament ; the degree and nature of
integration of the Territory into the Union; administrative çepa-
ration ofthe Eastern Caprivi Zipfel from the balance of the Territory
and its administration as an integral part of the Union; and the
vesting of South West Africa Native Reçerve Land in the South
African Native Trust.
Included in the second category were: the practice of apartheid;
the application of racially discriminatory legiçlation in the political,
economic, social and edvcation fields; restrictions on freedom of

'As paraphrased in the Summary Records ofthe4th Committee, U.N. Doc.
No. AiC.41SR.659 at 36para.12(rg57).
U.N.Gcn. Ass.On. Rec. 11tSess.,Supp. No. 1at 30 (Al3572 and CorrJ)
(~957).
12th Sess., Supp. No. r(A(3625)(rg57).SouthWestAfrica, U.N. Gen. Ass.Off. Rec.
U.N. Gen.Ass. Off. ec. 12th Sess., Supp.18oat 25 (A/38051957).population, while the 'Non-European' majority is confined to
reserves except to the extent that its manpower is needed in the
'European' economy in the form of unskùled labour and under
strict regulation.
"The Committee therefore reaffirms its conclusion that existing
conditions in the Temtory and the trend of the administration
represent a situation not in accord with the Mandates System, the
Charter ofthe United Nations, the Universal Declaration of Human
Rights, the advisory opinions of the Intemational Court of Justice
and the resolutions of the General Assembly." l

The Good OfficesCommittee met with. the Union during 1958.
The Union was only willing to consider an agreement with the
remaining Principal Alliedand Associated Powers, or, alternatively,
the possible partitioning of the Territory.
In its report tothe GeneralAssembly,the GoodOfficesCommittee
stated "The Committee accordingly expresses to the General
Assembly (a) the opinion that a form of partition might provide a
basis for an agreement concerning the Temtory of South West
Afnca, and (b) the hope that the General Assembly will therefore
encourage the Government of the Union of South Africa to carry
out an investigation of the practicability of partition, on theder-
standing that if the investigation proves this approach to be prac-
ticable it willbe prepared to submit to the United Nations proposais
for the partitioning of the Temtory."
The Fourth Committee discussed the report of the Good Offices
Committee.
At the 756th meeting of the Fourth Committee, on October IO,
1958,the Ethiopian delegate expressed his Government's rejection
of the position taken by the Union and the partition proposal.
He contended, in substance, that:
"the Good Offices Committee had rightly concluded that it
could not entertain any proposa1envisaging an agreement to which
the United Nations would not be a party, such as the first of the
two alternatives discussed with the Union Government. The idea
that the latter's international obligations should be limited to what
it cailed the three remaining Principal Ailiedand Associated Powers
failed to take account of present-day reality. In fact, the proposa1
was not new and had in fact already been rejected by the United
Nations in GeneralAssemblyresolution 749A(VIII). His delegation
found it puzzling that, under the guise of the so-called new ap-
proach, the Union Govemment should put forward once again a
proposa1ivhich was entirely contradictory to the letter and spirit
of the relevant Chapters of the Charter, the numerous resolutions
on South West Africa passed by the General Assembly and the
advisory opinions which the Fourth Committee had requested
Id. at 28-29, paras. 168-171.
U.N. Doc. No. A/jgoo. U.N. Gen. Ass. Off. Rec. 13th Sess.. Agenda item 39,
Annexes atIO.para. 7 (1958).78 SOUTH IVEST AFRICA

from the International Court of Justice. The second proposa1 dis-
cussed in the report of the Good Offices Cornmittee, namely par-
tition, was even more puzzling, and the answers given to the
questions asked by a number of representatives had not made it
any more comprehensible to his delegation ...

"His delegation would be ready to consider any suggestion for
the further exploration of the South West African problem provided
that it was in accordance with the relevant provisions of the
Charter, the resolutions of the General Assembly and the advisory
opinions of the International Court of Justice." l
The General Assembly inResolution 1243(XIII) of 30 October
1958, voted "not to accept the suggestionscontained in the report of
the Good OfficesComrnittee on South West Africa that envisage par-

tition and annexation of any part of the Territory as a basis for
the solution of the question of South West Africa", and invited the
Good Offices Committee "to renew discussions with the Govern-
ment of the Union of South Africa in order to find a basis for an
agreement which would continue to accord to the Mandated
Territory of South M'estAfrica as a whole an international status,
and which would be in conformity with the purposes and principles

of the United Nations."

(10) 1959
In 1959, the Good Offices Committee againmet with representa-
tives of the Union Government in an effort to reach a settlement
of the dispute. Prior to opening its discussions with the Union,
however, the Committee made it clear that the partition proposa1
had been ruled out as a possible solution. During the course of dis-
cussions with the Union, the Good Offices Committee suggested
that future negotiations should concern themselves with the nego-

tiation of an agreement to which the United Nations would be a
party and which would provide for United Nations supervision of
the Territ~ry.~
The Committee's proposa1 was not acceptable to the Union
delegation, which insisted that the United Nations had no right to
supervise the administration of the Temtory by the Union of
South Afri~a.~
The Good OfficesComrnittee concluded, in its 1959 Report, that

"the Cornmittee, therefore, regrets to inform the General Assembly
that it has not succeeded in finding a basis for an agreement under
its terms of reference."

As paraphrased in the Summary Records of the 4th Committeeü.N. DOC.
No. A/C..+/SR. 756 at 57, paIaand 3 (1958).
C.K. Gen. Ass. Off. Rec. 13tSess..Supp. Xo. 18 at30 (A/4090) (1958).
' U.N. Doc. No. A/4224U.N. Gen. Ass. Off. Rec. 14tli Sess., Agenda item 38,
Annexes at 2-3, parIO (1959).
' Id. at 3, paI1.
Id. at 4, para. 16. MEhlORIAL OF ETHIOPIA
99
The Committee on South West Afnca during 1959 made no
effort to negotiate with the Union so as not to intesfere with the
atternpts of the Good Offices Cornmittee.

The Committee on South West Africa did, however, again invite
the Union to submit an annual report.' The Chairman of the
Comrnittee received the perennial negative response from the
Union.'
The Cornmittee on'cemore also made a detded report on condi-
tions in the Territory. Its report concluded tvith the following:
"After almoçt four decades of administration of South West

Africa urlder the international Mandate Systern, whose guiding
principle içthat the well-being and development of the Territosy's
inhabitants 'form a saçred trust ofcivilization', theUnion of South
Afnca has failed and continues to fai to carry out the obligation it
undertook to promote to the utiiiost the matenal and mord well-
being and the social progreçs of the inhabitants of the Territory.
"The Mandatory Power bases its administration of the Territory
on a poiicy of apartheid and 'White suprernacy' contrary to the
Mandates System and to the Charter of the United Nations, and
its goal isthe annexation of the Territory. The Union Governrnent
has reserved political authority in the Territory, by law, to a

'European' minority, has transiered a major portion ofthe Mandated
Territory and itç resources to 'European' citizen5 of the Union of
South Africa, has allocated the bulk O£ the public fundç of the
Territory to 'Europeans', and has reserved to them the larger
share of the econonzic, social andeducational opportunities avail-
able in the Territory. It' haç at the sarne time denied to 'Non-
Euro~sean' inhabitants of the Territory, not only a recognition of
their paramount interests, but also the right to participate on the
basis of equality and merit in the political, economic, social and
educational life of the Territory. The indigenous 'Native' majority
of the population in particular have been subjected to unnatural
restrictions on their freedom of movement and regulation of their

daitilylife, and have çuffered darnaging rernovals and threats of
removals from their lands to places even beyond the boundaries
of the international Mandated Territory."
The General Asçernbly approved the Cornmittee's report in
Resolution 1360(XIV) of 17 Novernber 1959, the Applicant
voting with the rnajority.
The Cornmittee's report also was the subject of debate in tlze
Fourth Committee. At the 900th meeting of the Fourth Comrnittee,

Sess.Supp. No.I2oat34 (Al4rgr)(1g59).st Airica, U.K. GAss.Off. Rec14th
2 Id.at32-33p,aras239-230.
U.N. Gcn.ASS.Off.Rec. 14th Sess.Supp.Ko. 16 at 28-29(Al4354) (1959)-80 SOUTH WEST AFRICA
Mr. Eric Louw, Union Minister of ExternaI Affairs, discussed the
report at length. Excerpts of hiç cornrnents are set out in detail :

"En spiteof the fact that we have every year, consistently, warned
this Committee against accepting the evidence, or the staternents
or the ailegationsofeither prejudicedperçons or unreliable witnesseç,
they have proceeded to continue todo so.
"What is interesting-and it içshown particuIarIy in the state-
ment by the Rapporteur-is that a great part of this report waç not
based on reports or statements made by theçe witnesses and peti-
tionersbut was basedonextrac ts from officia1documentsand reports.
Here rvehave the extraordinary situation-as 1shall now proceed
toshow-that, in dealing with information received from officia1
documents and reports, this Committee came to entirely unjustified
conclusions, although in this respect 1 muçt remind you that the
Rapporteur also saidthat a great part of their work was taken up
with the consideration of petitionçand here, again,they based their
conclusionsupon information which was inmany casesentirely biased.

"A pemal of this and previous reports of the Cornmittee on
South West Africa, show that this Committee haç gone far heyond
its terms of refer~nce and that little attempt has been made to
conform to thcproced~ire of the Mandates Commission. As I informed
this Cornmittee on a previous occasionI on two occasions presented
the Union Government's report on South West Africa to the formcr
Mandates Commission and for a period of two or threc days on
these two occasions 1 was questioned by that Commission. 1 can
thus speak ~4th personal and intimate knowledge of the procedure
followed by the former Mandates Commission. Having regard trthe
directive contained in the United Nations Assembly's terms of
reference, which 1quoted, 1have the right toask now-and 1 put
the question pertinentIy-how many members of the Cornmittee,
if any,have taken the trouble te read the reports of the previous
Mandates Commision of the bague of Nations, so as to acquaint
themselves thoroughly with the procedure followed by that Com-
mission, on whch their own reports are expected to be modelled.

"Lkiere isanother Lnteresting point in this Cornmittee's report, an
entirely unjustified conclusion. The Camrnittee indirectly links these
alleged-aileged, I say+ontemplated mass removals of Native
peoples against their will with the heavier penalties imposed for the
illegal possession oarms and ammunition.
"Mr. Chairman, since the time that the Union Government took
over the previous Mandate of South West Africa in 1920, it has,in
accordance with the terms of article 3 of the lapsed Mandate,
controlied trafic in arms and ammunition. 1 may ask: Doeç the
Cornmittee on South West Africaobject to that? It would be interest-
ing to know ifthey do. It would be çurprisingif they did.
..............................
"1may be pardoned for saying thatthe Cornmittee on South West
Affica seems to searçhfor ulterior obad motives in every single act
of the South West Africa Administration. MEMORIAL OF ETHIOPIA 81

"1 hope that the Cornmittee will, asthe resiiltaï this, bcaritl
mind the repeated warnings of the South African delegation re-
garding witnesses who givc evidence before this Co~mittee. Here,
we again have proof of the irresponsible and unreliablc types of
persons who give oral evidenceIt shows how Iittle reliance can be
placed on statements by so-called witnesseç...'

Itiçnoteworthy that althoiigh the Union was at pains to criticize
the accuracy of oral testimony and certain selected aHegationsof
the Committee, the Union made no real attempt to deal with the
practice of apartheid. Nor did the Union dispute the existence of
an interlocking çeries of legislationwhich the Comrnittee deemed
oppressive.
The Committee,prior topublication of this report, as in previous
years, had requested information, which request the Union had
denied.
At the 913th meeting of the Fourth Committee, the Rapporteur

of the Committee on South West Africaadverted to the Union's
tactic of refusing to supply information and theii denying the
acçuracy of information gathered from other sources. He ançwered
charges by the Union that the report contained "rnisstatements"
and "unjustified conclusiam." He pointed out that the Comrnittee
had not gonebeyond the procedures andpractices of the Permanent
Mandates Commission of the League of Nations. He made the
following rernarks (inler dia):

" ... There is ocourse one vital, major difference between the
operation of the mandates systcm in the Leaguc of Nations and
the workof our Cornmittee in the United Nations. It isa difference
that must be clearto all. The difference is this: The Permanent
Mandates Commission was able to cnnsider voluminouç and detailed
reports submitted by the Union Govemrnent and to çcek further
information on rnany points by questioning the SpcciaE Keprc-
sentatives of the Mandatory. That is the main difference,and it
1s in my opinion a rnostimportant differcnce,bctween the work
on SoutherWestnAfrica. The information available totheeCommittee,e
that is,the laws, Gazcttcç, commission of enquiry reports and
other official information, the budgetas well as Press reports and
petitions,were alsoavailable to and uscd by the Permanent Man-
dates Commission in itsconsiderationof conditions in South West
Africa. nie difference is that these officia1and unofficial texts,
which form the bais of this Cornmittee's work, served in the
Permanent Mandates Commission only to suyplcment the anniial
reports and the information obtaincd by questioning tlie Special
Repreçentatives of the Mandatory. ln other words, we are denied
the CO-operation of the Union Government. This is the main
difference between the procedure in our Committee and that under
the Mandate, although 1 hardly feel it ia difference the Union
Government will wish to stress.

U.N. Doç.No.AIC.4142rat 17.18-26,3, 32. 33-342(1959)-82 SOUTIi WEST AFHICA

In the second place, thc clistin~.uished Ministersuggested that
the Comrnittce on South West: Africa had gone beyoncl the scope
ol the questionnaireapproved hy the Leapie of Nations. Far
€rom that being so, I regret to have to say that the Cornrnittee
has not even been able to report on al1of the questions covered
in the Lcague questionnaire. \WChave not been able to go even
as faras the questionnaire of the League on wllich we base our
work. As only one examplc, 1 might mention that the Cornmittee:
has been unable to furnish çomplete trade statistics because the
trade statisticsof the Tersitory are inçorporatcd in those of the
Union." 1

In Junc of 1960, the Çeco~ld Conference of Independent African
States met at Addis Ababa. States participaking in the Conference
were Ethioyia, Gliana, Giiiriea, Libya, Liberia, Morocco, Sudan,
Tuniçiü, and thc Uriited Arab Repiiblic. There werc also observers
from Algeria, Carneroon, Nigeria and Somalia.
Tlîe Secretary of State of Liberia, H.E., Mr.j. Rudolph Grimes,

in addressing the Conference, referred to the special interest of his
Government in the question of South West AfRca:
"We do not think it necessary to review at this time ail events
in the matter of the rnandated territory of South West Airjca,
the fadure of the United Nations Good Offices Cornmittee, etc.
"in the Iight of the resolutionç passed at the last session of the
United Nations Assembly, rny Government, as a former rnember
of the League of Nations at the time of itsdissolution, has dready
indicated its determination on behalf of al1 the Afncan States, to
pürçue further action to get this territoryplaced under the Trustee-
ship provisionç of the Charter. We are pleased to know that in this
we have the support and co-operation of other African States. This

rnatter will he discussed at this conference and it is hoped that
final deçiçion for further action \dl be taken before we adjo~rn."~
The Conference thereaftei gave full consideration to the question
of South West Africa. A ~esolution was unanirnously adopted on
June 23, 1960 setting forth, iwterdia, that the Conference:
"1. Concludes that the international obligations of the Union
of South Africa concerning the Tenitory of South West Africa
should be subrnitted to the International Court of Justice for
adjudication in a contentious proceeding ;
2. Notes that the Governments of.Ethiopja and Liberia have
signified their intention to institute such a proceeding ..."

For its part, the Committee on South West Afriça continued its
activitieç in1960. Etsought, asin the past, to find abasis for settle-

l U.N.Doc. Na. AIC.4142at 5-6(1959).
',Second Conference ofIndependentfricaStates,Addis hbaba,r4-26] Lille,
ment"(rg60),at 32.e Rginistry of Information oflmperiaEthiopianGovïrn-
Id.at 101-102. MEMOKIAL OF ETHIOPIA 83

ment ot the dispute. Tt should be noted that the GcneraI Assembly
at this point by Resolution 1360 (XIV) of 17 November 1959,
authorized the Committee tanegotiate with the Union "witk s view
to placing the Mandated Territory under the International 'I'ruçtec-
ship System." l The Cornmittee again invited the Union to
send a representative to mcet with the Committce. The Union
again rejected the invitation, repeating that "the Union Govern-

ment stillbelieve that negotiations on the basis proposed would
not lead to any positive results."
The Union offered "to enter into discussions with an appropriate
United Nations ad hoc body that may be appointed aftcr prior
consultation with the Union Gavernment and which would have
a full opportunity to approach their task constructively ,providing
for fullest discussion and exploration of al1 possibilitics-on the
understa~zding,of course, tkat tlaiis withouf p~ejudice to theUnio.la's

consislientlyheld stand on ilaejudicial asfiect ofthe issue." (Italicç
added.)
The Cornmittee's report for 1960 on the Union's administration
of the Territory embodies the following conclusions :

"The Mandatory Power has continucd to administer tlie Terri-
tory on the baçis of a po1icy of a$aïtheid and 'White supremacy'
which is contrary to the Mandate, the Charterof the United Nations,
the Univcrsal Declaration of Hurnan Rights, the advisory opinions
of the International Court of Justice and the reçolutions of the
General Asserntily.
"For several years, particularly since the transfer of direct
control over the administration of 'Natives' and 'Native' areas
in the Territory to the Union Department of Nativc Affairs, the
Committee has becorne increasingly concerncd at the trend of the
administration which subardinates the well-befng and paramount
inte~estsof the 'Native' and 'Coloured' popuiation to those of
'E~iropean.;'.

"In its present report, thé Cornmittee welcomes a discernible
increase in the territorial expenditures and appropriations, improve-
men ts in the fieof public health, assurances by the Union Govern-
mcnt that the Bushmcn and the people of three of the smaller
'Native' reservesare not to be moved, and certain of the develop-
ments in the fielofeducation, however inadequate al1these may be .

"Lastty, the Cornmittee considers that, as far as the 'Native'
and 'Çoloured' population of the Territory are concerned, the basic
ills of administration stem directly or indirectIy from the rigid
enforcement of the policy of apartheid based on the concept of
'Whit supremacy' ovcr al1 other races. Unle55 and until this basic

17.N.Gon Ass Off. Hec. 14th Sess., Supp. 16.at28-29 (A/4354) (1959).
* Report oftheCommittee on South West Afnca, U.N.Gen. Ass.Ofl Rec. 15th
Sess, Supp. Ko.12 at58 (AI4464)(1950)84 SOUTH WEST AFRICA
policy is changed, there can be no hope for the maintenance of a
pcaceful and orderly administration of the Mandatcd Tetritory.
The Cornmittee jstherefore gravely concerned at the continued
failure of the Union Government to comply with previous recom-
mendations of the Committee,approvedby the Genesal Assembly,
for the revision of policiesand rnethods of administratioto make
them conforrnwith the sacred trust embodiedin Article 22 of the
Covenant of the League of Nations and the Charter of the United
Nations."
The Cornmittee on South West Africa, in its 2960 report, also

endorsed the intention expressed at the Second Conference of
Independent African States at Addis Ababa. The Committee on
South West Africa expressed its recognition of "the importance of
the constructive intention expressed at the Second Conference of
Independent African States held inAddiç Ababa, which is in con-
formity tvith General Assembly resolution 1361 (XIV) dealing
with the legal action open to Member States to institute judicial
proceedings. The Cornmittee wiçhes to commend this intention
on the part of the Governments of Ethiopia and Liberia to the
General Assembly as one of the practical approaches for the im-
plementation of resolution 1361(XIV)."
At the close of 1960, following fourteen years of frustration of
effortson the part of numerous agencies of the United Nations to

negotiate with the Union, the General Assembly, in Resolution
1565 (XV), conduded, that :
"... the Government of the Union ofSouth Africa has failed and
refused to carry out its obligations undes the Mandate for the
Territory of South West Afnca", and that "the dispute which
has arisen between Ethiopia, Liberia and other Mernber States
on the one hand, and the Union of South Africa on the other,
relating to the interpretation andapplication of the Mandate has
not been and cannot be settled by negotiation."
The full text of the foregoing Resolution is set out for the Court's
conveniençe :

"Th GeneraLAssembly,
"Recalling its Rcsolution 1361(XIV) of 17 November 195g: in
which it drew the attention of Member Statcs to the conclusions
of the special report of the Committee on South West Africa
concerning the legal action open to Member States to siibmit to
the International Court of Justice any dispute with the Union of
South Africa relating to the interpretation or application of the
provisions afthe Mandate for the Territory of South West Africa,
ifsuch dispute cannot be settIed by negotiation,
"Notimgwith graueconcernthat the administration ofthe Terntory,
in recent years, has been conducted in a rnanner contrary to

Id. at56,paras.444-446453
Id. at 4para.27.
LiN.Gen. Ass. Off. Rec15th SessSupp. No. 16at 31-32(414684)(~960). hlEhlORIAL OF ETHIOPIA 85

the Mandate, the Charter of the United Nations, the Universal
Declaration of Human Rights and the resolutions of the General
Assembly, including resolution 449 A (V) of 13 December 1950,
by which the Assembly accepted the advisory opinion of
II July 1950of the International Court of Justice on the question
of South West Africa,
"Notingthat alinegotiations and effortson the part of the General
Assembly, of its several committees and or ans constituted and
authorized for this purpose, and of Member 8tates acting through
such committees and organs, have failed to bring about compliance
on the part of the Government of the Union of South Africa with
its obligations under the Mandate, as is evidenced,inter alia, by the
followingreports of the said committees and organs to the Assemb:y
(a) Reports of the Ad Hoc Committee on South West Africa to
the General Assembly at its sixth, seventh and cighth sessions,
(b) Reports of the Committee on South West Africa to the
General Assembly at its ninth to fifteenth sessions,
(c) Reports of the Good Offices Committee on South West
Africa to the General Assembly at its thirteenth and fourteenth
sessions,
"Notingthe aforesaid reports, and in particular the reports of the
Committee on South West Africa concernin the failure of negotia-
tions with the Government of the Union O1 South Africa and the
Committee's conclusionsthat the Union has at al1 times declined
to co-operate in any way with the Committee in the discharge of
its functions,

"1.Notes with a$$roval the observations of the Committee on
as set out in the Committee's report to the General Assembly aty
its fifteenth session,and finds that the Government of the Union of
South Africa has failed and refused to carry out its obligations
under the Mandate for the Territory of South West Africa;

"2. Concltdesthat the dispute which has arisen between Ethiopia,
Liberia and other Member States on the one hand, and the Union
cation of the Mandate has not been and cannot be settled by and appli-
negotiation;

"3. Notes that Ethiopia and Liberia, on 4 November 1960,filed
concurrent applications in the International Court of Justice
instituting contentious proceedings against the Union of South
Afnca ;
"4. ~ommertdsthe Governments of Ethiopia and Liberia upon
their initiative in submitting such dispute to the International
Court of Justice for adjudication and declaration in a contentious
proceeding in accordance with article 7 of the Mandate."

Upon the dissolution of the League of Nations the Union did not
conceal its desire to annex the Temtory. The Union a'nnounced to86 SOUTH WEST AFRICA

the League, and later to the United Nations, its wish to do so.
although expressing a willingness to comply with the spirit of the
Mandate. until full incorporation of the Territory or other arrange-
ments were made with the United Nations. The United Nations
General Assembly withheld its consent to incorporation, on the
ground that the inhabitants of the Territory had not yet reached
a level of politicalaturitjr enabling them to "express a considered
opinion" on a matter as vital as incorporation. The Assembly,
instead, recommended that the Union place the Territory under
the Trusteeship System, as had been the case with al1 other "C"
mandates. This, the Union has always refused to do.
Instead, shortly after the United Nations refusa1 to permit in-

corporation of the Territory, the Union contended that the United
Nations had no rights of supervision, or other powers, with respect
to the Territory. The Union argued in essence that with the disso-
lution of the League the Mandate had expired. The General Assem-
bly the-upon requested the Court for an Advisory Opinion, sub-
mitting certain questions involving the legal status of the Mandate.
The Union appeared, and argued its case both in written and oral
presentation.
The Opinion of the Court being unsatisfactory to the Union, the
latter denounced the Opinion as being in error, and proclaimed its
intention not to comply therewith.
There followed years of patient, though unavailing, efforts on

the part of the General Assembly to obtain implementation of
the Opinion,*by means of negotiation and appeal.
The Committee on South West Africa has been the main, though
not the sole, medium of the Assembly in such efforts. Tt has also
rendered its reports on the basis of the most diligent research and
in the face of the Union's refusa1 of CO-operation.
The Committee's repeated findings of Union violations of the
Mandate and recommendations thereon have been asunavailing
as the Committee's efforts to negotiate.
The Cornmittee's findings have merely evoked the Union's pro-
fessed intention to "continue to administer South West Africa in
the spirit of the lapsed Mandate." l
The policies and practices actually pursued by the Union in the
Territory are set forth in detail in Chapter V of this Memorial. As
wiil be seen, the Union has not, in fact, administered theTemtory

either according to the letter or the spirit of the Mandate.
The Applicant has repeatedly expressed grave concern con-
cerning the violations by the Union of its duties with respect
to the Temtory and the tvell-being of its inhabitants. It has
communicated this concern by statements made in the Fourth
Comrnittee, by votes on numerous resolutions, through its partici-
pation as a member of the Committee on South West Africa and in
international conference.

' U.N. DOC.No. A/C.4/421 at 42 (1959).88 SOUTH WEST AFRICA

III

JURISDICTION OF THE COURT

The Applicant founds the jurisdiction of the Court on Article
7 of the Mandate and Article 37 of the Statute of the Interna-
tional Court of Justice, having regard to Article 80, paragraph 1,
of the United Nations Charter.
The second paragraph of Article 7 of the Mandate provides:
"The Mandatory agrees that, if any dispute whatever should
arise between the Mandatory and another hlember of the League
of Nations relating to the interpretation or the application of
the provisionsof the Mandate, such dispute, if it cannot be settled
by negotiation, shall be submitted to the Permanent Court of Inter-
national Justice provided for by Article 14 of the Covenant of the
League of Nations."

Article 37 of the Statute of the International Court of Justice, to
which the Applicant and the Union have subscribed by joining
the United Nations, provides:
"Whenever a treaty or convention in force provides for reference
of a matter to a tribunal to have been instituted by the League of
Nations, or to the Permanent Court of International Justice, the
matter shall, as between the parties to the present Statute, be
referred to the International Court of Justice."

Article So, paragraph 1,of the United Nations Chaiter provides:
"Except as may be agreed upon in the individual trusteeship
agreements ...and until such agreements have been concluded,
nothing in this Chapter shaii be construed in or of itself to alter in
any manner the rights whatsoevcr of any states or any peoples or
the terms of existing international instruments to which Blembers
of the United Nations may respectively be parties."

In its Advisory Opinion of July II, 1950 he Court ded:
"According to Article 7 of the Mandate, disputes between the
Alandatory state and another Member of the League of Nations
relating to the interpretation or the application of the provisiofs
the Mandate, if not settled by negotiation, should be submitted to
the.Permanent Court of International Justice. Having regard to
Article 37 of the Statute of the International Court of Justice, and
Article 80, paragraph 1,of the Charter, the Court is of the opinion MEMORIAL OF ETHIOPIA 89
that thiç clausein the,Mandate is still iforceand that, therefore,
the Union of Snuth Africais under an obligation to accept the com-
pulsory juri&tion ofthe Court according to those provisions.'

In the followingChapter, the AppIicantsets forth the grounds for
its submiçsion that the Court should reamrm itç aforesaidruling
andçhould hold that the said ruiingsets forth the law of thiscase.
Assuming that the Mandate isthus in force within the rneaningof
Article 37 ofthe Statute O*the Court, we turn now to an analysis of
Article 7 of the Mandate to show its applicabilityto thiç proceeding.

I. There a'sa "disflzcte"

In the Mavrommatis PalestineConcessions Casa,Z the Permanent
Court of International Justice was calledupon to interpret the term
"dispute" in connection uith Article 26of the Mandate for Palestine,
a provision identical with Article 7of the Mandate for South West
Africa. The Court said in that case: "A dis@& isa disagreemertE on
a fioi7ttoLaw or fact, conflictofLegaiuiews orof a'nterestsetween lwo
9ersons." (Italics added.)

The record of the psesent case makes clear that, for more thân
ten years, the Apphcant herein has had a disagreernent on points
of Iaw and fact, as weIl as a conflict of legal views and interests,
with the Union. The Applicant has maintained at al1 times that
the Mandate is in force; the Union, that the Mandate has lapsed.
The Applicant has insisted that the Union hasviolated the
Mandate; the Union has denied doing so. The Applicant has
contended that the United Nations has supervisory powers over
the Union as Mandatory ; the Union haç repeatedly rejected its
contention. The Applicant has asserted a legaiinterest in, and the
right to object to, the manner in whch the Unionadministers the
Territory ; the Union inçists that it alone has a legal interest in what
occurç inthe Territory.

The General Assembly, asthe United Nations organ through whch
the Applicant herein has consistently made known its conten-
tions, has found as a fact that a "dispute ...has arisen between
Ethiopia, Liberia and other Member States on the one hand, and
the Union of South Afnca on the other, relating to the interpreta-
tion and application.of the Mandate ...." '

Inter~aEional slaofSmth West Africn,Advisory Opinion.I.CJ. Reports
1950, p 128 at r38.
Caseof the Mavrommatis Pelsstine Cmcessaons, P..,Ser. ANo.z (1924).
Id.at rr.
Supp.eNo.u16at532 (A146841(1960).errgb, U.N. Gen.A=. Off.Rec. rshSess.

790 SOUTH WEST AFRICA

2. The dis$& is Getwflerzhe Mandatory and "û+toih~
Member ofthe League ofNations" in the sense
ofArticle 7 ofthe Malzdaie

The AppLicant was a member of the League of Nations. Itjoined
the League on September 28, 1923, and continued as a member
until the League's ibssolution. As a member of the League, it had
a legal jnterest inthe proper exerçiçe of the Mandate. There isno
disagreement with the Union on thiç point ;the Union ha5 stated as
rnuch. (Seep. ~3 herein.) The question before the Court is whether
the Appljçant 'çlegal interests have survived the dissolution of
the League. It is submitted that the phrase "another Mernbet of
the League of Nations" as used in Article 7of the Mandate, should
be constmed as referring to former rnembers of the League, as well
as to members of the United Nations.

In holding that Article 7 isin force, the Advisory Opinion must
have assumed the survivai of the legal intereçts of former League
rnernbers in the Mandate, since othenvise the holding would be
meaningless.
Judge Mch'air'ç separate opinion makes this point in the following
terms :
" ... every state whicwas a Member of the League at the time of
its dissolution still halegal interestinthe proper exerciseof the
Mandate ... 1have endeavored ta show that the agreement between
the mandatory and other rnernbers of the League embodied in the
Mandate isstill 'in force.'The expression [in Article 71'member of
the Leagu~of Nations' is descriptive, rnyopinion,not conditional,
and does not mean 'solong as the Leape exists and they are
rnernbcrsof it'."

The basic principles ofthe Mandate System and the means devised
by the League of Nations for their enforcement afirm the soundness
of thiç reasoning.
As has Geen said earlier in this Mernoriai (p. 36), the idea of
"saçred trust", or tutelage of peopleç not yet able to govern them-
selves, was ilotnew, baing close to the concept of trust or t~teJJ8in
municipal law. However, effective application of the idea to inter-
national 3aw and practice was new. Imbedded in the Mandates
System was the doctrine that the mandatory, xvhose only legal
right in the mandated territory, inthe firstplace, lay initsassump-
tion of a trust conferred by the League of Nations, could not con-

clusively detemine foritself how to adrninister the tenitor y.e
League had a legal interest inthe administration, and so did each
member of the League.
The League's interest was to be exercised through administrative
supervision. The interest of League Mernberswaç to be exercised,

l Inte~malionstaîüofSmlh West AJricaAdvisory Opinion:1.C.J. Repo1950
p.128 at158-159 MEMORIAL OF ETHIOPIA gr

ultimately, through involung the compulsory jurisdiction of the
Permanent Court of International Justice. This aspect of control
and supervision gave to the ideal of "saçred trust" a meaningful'
realit y.
Supervision over Mandates necessarily has a dual character; it
is both administrative and judicial. Judicial supervision is an in-
dispensable feature of the Mandates System, since, if administrative
supervision should fail, as ithis case, there isno other method of
enforcing the sacred trust which the mandatory powerhas assumed

on behalf of civilization.
This fact has been pven cogent expression by Norman Bentwich,
sçkolar and Attorney-General of Palestine during the British Man-
dat~ for Palestine:
"The International Court has not yet been called upon to deaI
with the applicationor interpretation of any of the other Articles
concerningpublic rights, the principle of the open door, or any of
the international obligations undertaken by the mandatory. But
it stands there, behind, as it were, the Mandates Commissionand
the Council of the League, as the sufirem gaardia~ of the rights
of nations in the fulfilment of the international trust which is con-
ferred on the hfandatory, and as the ernbodiment of international
justice.It is the Palladium of justice in the development of the
mandated countries, juçt as the Mandate Commissionis the
Areopagus." (1taIics added.)"

Ifthe Mandate is in force, judicial supervision must likewise be
in force,since the former is empty without the latter. lnasmuch as
only States may be parties in cases before the Court (Article 34 of
the Çtatute of the Court), jt follows that unless the Applicant is
entitled to inçtitute a contentious proceedzng, there iç no method
for obtaining an enforceable decision. If that were so, judicial
supervision over the Mandate would be a nullity.

3. The dispute relatesto the "ister+~etatPoor application
ofthe provisions ofthe .Martdafe",as the phrase
a'US& in Artzcle7 lhereof

The provisions of the Mandate have been set forth in full as
an anaex hereto. The Applicant alleges, and the Union has denied,
that the Union has violated and is violating Articles 2,4, 6 and 7 of
the Mandate. There is therefore a dispute concerning both the inter-
pretation and the application of theçe Articles of the Mandate.
The Applicant's contentions in thisrespect are set forthin Chapters
V, VI, VIE,VI11 and IX ofthiçMernorial,and submissions rdating
thereto are contained in Chapter X.
Article 7 of the Mandate refersto any,.&çpute "whatever".

"entwich, The ilX.lapidalesSysbem, 134 (rg30).92 SOUTH WEST AERICA

The Applicant haç a Iegal interest in seeing to it through
judicial process that the sacred trust of civilization created by the
Mandate is not violated. As Quincy Wright, the American scholar
has written in Ma.IEdale s nder ,theLeague of Nations :

"Every Member of the League can regard itç rights as infringed
by every violation of the mandatory of its duties undthe mandate,
even those primarily for the benefit of natives, and can make
repreçentationç which, if not effective, will psecipitatea dispute
referrable to the Permanent Court of International Justice if
negotiation fails to settIe it."

In the MavromaEis C~ase, the Court took it forgranted that
Article 26 of the Palestine Mandate (as stated above such Article
is identical to Article 7 of the Mandate herein) embraced disputes
pertaining to the welfare of the inhabitants of the mandated terri-
tory. The issue discussed by the. Court was whether "disputes
relating to the interpretation or application of the Mandate"

included clairns made on behalf of a national aot an inhabitant of
the territory.Judge Oda's dissenting opinion in the Mavrommatis
Case takes the right for granted in case of an inhabitant :
"Underthe Mandate, inaddition to the direct supervision of the
Council of the Lea e of Nations ...provision ismade for indirect
supervision by theIourt but the latter may only be exercised atthe
request of a Memberof the League of Nations (Article 26). It is
therefore to be çupposed that an application by suchaMember mwsi
hemade excl~sively with a siiaetoth proteciion.of geseral inierests
and that itis not admissible for a State simply to substitute itself
for a privateperson in order to assert his private claims." (Italics
added .)

The opinion of Judge Bustamantein the same case, contains the
following language :

"Whenever Great Britain as Mandatory performs in Palestine
under thc Mandate acts oJ a generd natwe a#ecting the
interestthe Members of the League-from which she ho1 stwbtht
Mandate-areentitled, provided that al1other conditions are fulfilled.
to have recourse to the Permanent Court. Ontheother hand, when
Great Britain takes action affeectingpsivate intereçts and in respect
of individuais and private companies in her capacity as the Ad-
ministration of Palestine, thereisno question of juridical relations
between the Mandatory and the Mernbers of the League from
which she hddç the Mandate, but of legal relations between third
Parties who have nothing to do with the Mandate itself from the
standpoint of public law." (Italics added.)

= Casa oftheMavvommatis Palsstirae Concessions, P.C.I.J.A,NO..2 (rgz-11.
Id.at 86.
4 Id.at 81-81. MEMORIAL OE ETHLOPTA 93
Moreover, although the Union has denied that Article 7 is in
force', the Union has nonetheless conceded that Article 7,if in force,

entitled League rnernbers to institute proçeedings to uphold the
rights of inhabitants of the Territory.
Thus, the Union has stated:
"It was only in their capaçity as Members of the League that
thirdStates were competent to uphold the rights of the inhabitants
of mandated territones or ta claim rights, for theniselvesin those

territories"?
The Union haç arped further:
".. Nos have individualMembersof the United Nations anylocus
stawdiin respect of the administration of South West Africa. They
cauld have hadsucha locusstcandoz'nlyas Mernbersai the bague."

4. The disPute "canmotbe settledbynegofiration", in the
wea~ing of Article7 of the Mandale
The United Nations Genesal Assembly has created agenues to
negotiate directly on behalf of the rnernbers of the United Nations,
Including the Applicant herein, with the Union concernlng the

mandate. The Applicant has, therefore, appropriately rnanifested
its viewpoints within the forum, and in accordance with the
procedures established for the settlement of international disputes.
The record of this case reveals that negotiations loolung toward
cornpliance with the Mandate have been attempted from the be-
ginning of the United Nations. These negotiations have been fruitless,
despite the Court's Advisory Opinion.
Such negotiations have been atternpted through an Ad Hoc Com-

mittee, a Good Offices Cornmittee, the Fourth Cornmittee of the
General Assembly and the Cornmittee on South West Africa. After
more than ten years of frustrated efforts at negotiation, the General
Assembly concluded in a Resolution adopted in 1960, that "the
disyutewhich has arisen between Ethiopia, Liberiaand other Mernber
States on the one hand, and the Union of.South Africa on the other,
relating to the interpretation and application of the Mandate has
nui and cannot be setEled by negolialion." 3(Italics added.)

a Presumably,the Union denies that Article 7 is in forceitstatethatthe
Mandate isnot in force. Itwellto note, however, that on 7 December 1950the
Uniori's representatito the Faurth Committec stated: "Any State whiwas a
menber ofthe League atits dissolution could therefore still implead the Govern-
ment of the Union ofSouth Africa before the international Court of Jusince
respect of any dispute between sucha Member State and the Governmenofthe
Union of South Afnca relating to the interpreor the applicatioof the pro-
visions of the Mandate.
by"article 7 of the Mandate cannot be overl. . .(U.N. Doc. No AIC.41185atovided

8 (~Jnler7tnltonsfatusoSouthWestAfriw,Pleadings, Oral ArgumentD,ocuments
at 290(I.C.Jrg50). Dr. Steyn's statement on Behalf of the Union.
a Resolution 1565(XV) o18December rgb. U.N. Gen. Ass. Off.Rec. 15Sess.,
Supp. No. r6 at52(A14684) (1960).91 SOUTH WEST AERICR

It is respectfully submitted that the Court has jurisdiction to
heu and adjudicate disputes arising under the Mandate; that the
Court has jurisùiction over the partieçto the present proceedings;
that a dispute ha ariçen which is the subject-matterof these pro-
ceedings ;and that the Court haç jurisdiction to hear and adjudicate
the dispute, inasmuch as icannot be settledby negotiation. LEGAL BASIS OF THE UNION'S OBLIGATIONS
UNDER THE MANDATE

As deçcribed above, the Applicant and the Union have s long-
standing dispute regarding the status of the Mandate and the
Union's duties and obligations thereunder. The Union, before and
since the Court's Advisory opinion ofIr July 1950,has adopted the
position that the Mandate has lapsed and that ithas no duties and
obligations thereunder. The Applicant has insisted that the Mandate
continues to existand that al1 of the dutiesand obligations stated
therein are binding upon the Union.

To resolve the dispute in a manner which will unquestionably
bind the Union formally, the Applicant in this contentiouç proceed-
ing, requests the Court to declare the following as law :

I. South West Alricais a territoryunder the Mandate con-
ferred upon His Britannic Majesty by the Principal Allied and
Associated Powerç, to beexercised on his behalf by thGovern-
ment of the Union ofSouth Africa,accepted by His Britannic
Majesty for and on behalf of the Government of the Union of
South Africa, and confirmed by the: Council of the League of
Nations on December 17,1920 and that the aforesaid Mandate
iç a treaty or convention in force, within the meaning of
Article 37 of the Statute of the InternationaCourt of Justice;
2. The Union of South Afnca continues to have the inter-
national obligations stated in Artic22 of the Covenant ofthe
League of Nations and in the Mandate for South-West Africa
as well as the obligation to transmitpetitions frorn the inha-
bitants of that Territory, the supervisory functions to be
exerciçed by the United Nations, to which the annual reports
and petitions are to be submitted, and whose consent is a legal
prerequisite and condition precedent to modification of the
terms of the Mandate.

The International Court ofJustice has already pronounced upon
these identical questions [see pp. 23, 241,and has held in favor
of the above subrnissionsof law. These holdings were pronounced
after fulhearings ofthe Union's point of view, and after theUnion
had submitted both written and oral argument to the Court."

'See footiiotes 4 a5,p.51, supra.96 SOUTH WEST A17RICA

The Applicant reçpeclfuliy urges the Court to followthe rationale

of the Permanent Court ofInternational Justice in Case Concerltirtg
German.Ilaterests a'~Polish Ufifier Siksia, P.C.I.J., Series A, No. 7,
(1926) ("LJ$per Silesita")This was a contentious proceeding, brought
by Germany against Poland, involving the question whether
Article 256 of the Treaty of Versailles justified Article 5 of the
Polish Law of July 14,1920, under which Poland claimed the right
to expel German colonists settled in Polish territory forrnerly
belonging to Gerrnany. The Permanent Court had pronounced upon
the identical question in an Advisory Opinion, GevmanSdClersirt
Polarad,P.C.I.J,,Series B,No.6(1gz3), ("Ge~man Settlers"),aftercon-
sideration of oral and written arguments of Poland and Germany.
In its Advisory Opinion, the Permanent Court had held that Arti-

cle 256 ofthe VersaillesTreaty did not justify Article5 of the afore-
mentioned Polish Statute, and gave its reasons for the holding. In
its judgment in the contentious proceeding, the Court reaffirrned
itsruling that Article 256of the Treaty of Versailles did not justify
Article 5 of the Statute. The relevant excerpt from the Opinion of
the Court follows:
"As regards Article 5 of the Polish Law of July yth, rgzo,
Poland claims tohave acqulred, free from al1charges, the property
rnentioned inArticle 256 of the Treaty of Versailles.
This question has d~eady been corzsideredhy the Cozkri 2% ils
AdMsory O.pinionNo. 6 [Gernaalz Settlers Poland.] The Court
has Md that Article 256 of the Treaty of Versailles cannot be
regarded as justifying Article 5, because, although the Treaty
does not expressly and positively enunciate the principlethat in
the event of a change in sovereignty, private rights rnust be
respected, this pnnciple iç clearly reçognized by the Treaty.
Notlagngkasbeen advamed in th GOUYSB of thepresed #ro.oceedings
cdculatedIo altethe Cwrt's opinion onthis point."1(Italics added.)

It is submitted that the Permanent Court's express reasons for
reaffirming in the contentious proceeding, its prior advisory ruling
are fully applicable here : (a) relevant issues in the present case are
identical to those considered by the Court in InterwatiowalStalws of'
SouthWestAf~ica, just as in UpperSiZesia the issue in the çonten-
tious proceeding was identical to that mled on in the adviçory
proceeding, GermafiSettiers ifiPolafid; (b) issues raisedand decided
in International Status oJSozcihWest Africa involve the çarneÇtate,
the Union, just as the issue in Upper SSsia and GernzartSettZers
involved the same Çtate, Poland; (c)prior to deciding Iaternational
Siaius of SozctlzWest Africa, the Court received oral and written
argument from the Union, juçt asin Gerwzan Setders,the Court had

"use CmcerningGerman IrittiveinsPolish Uppet Silesta, P.C.I.J., Ser. A,
NO. 7at 31 (1926).received Poland's written and oral argument; (d) the facts upon
which the Court rested its Advisory Opinion in 1950 havc not
changed, just as the facts forming the basis for thepermanent Court's
Advisory Opinion in GernzanSettlershad not clianged.
The doctrine enunciated by the Permanent Court ernboclies tlie
recognition that (1) advisory opinions are not enforceable and (10

not have the force of resjzrdicala;ncvertheless, they state what the
law on a given question is, and when that question conccrns an
actual dispute. the advisory opinion, especially if rendered after
fullheanng of the disputants' subrnissions is "substantially equiva-
lent to deciding the dispute;" (2) the International Court does
not adhere to the doctrine of stare decisis; nevertheless it will not
readily depart from a prior ruling, especially if the subsequent pro-
ceeding involvésissues of fact and law identical in evcry respect fo
those in the prior proceeding.
The above t\vo elements underlying the I'erilianent Court's

practice in Up$er Silesia are grounded on the understanding that
the substance of a ruling and the eiiforceability of a ruling are two
separate matters. There is no reason to suppose that the absence
of the latter impairs the quality of the former,or that the Court will
find the law to be one thing in an advisory proceeding and another
thing in a contentious proceeding. This assumes yarticip t'on in
the advisory proceeding by the State whose rights and duties cire
the subject of the ruling on the merits of a dispute. (Such partici-
pation occurred in international Statz~sof Soz~thWest Africa.)
The practice of the Permanent Court in Upper Silesiu and the
foregoing explanations of that practice are supported by the

weight of long-standing judicial and scholarly opinion, as well as
the practice of States.

1. Jz~dicialand Scholarly O$i?zio)t

(a) Jztdicial Opinion
In the Eastern CareliaCase,'the Permanent Court of International
Justice considered the nature of advisory opinions, inasmuch as a
preliminary question in the case was whether an advisory opinion
concerning the rights and duties of Russia should be rendered, in
the absence of Russian consent and participation. The Permanent
Court refused to deljver an advisory opinion on the ground that it
would not decide a dispute concerning Russia without Russia's

consent. The Court affirmed that an advisory opinion, whjle not
binding, is nevertheless "substantially equivalent to deciding a
dispute." These are the Court's words:
"The Court is aware of the fact that it is not requested to
decide a dispute, but to give an advisory opinion. This circum-
stance, however, does not essentially modify the above considera-

l Easlevn Cavelia Case, P.C.T.J., Ser. H. (19.23). gS SOUTH WEST AFRICA
tions. The question put to the Court is not one of abstract law,
but concerns directly the main point of the controversy between
Finland and Russia, and can only be decided by an investigation
into facts underlying the case. Answering tlze question wozcldbe
substantiallyeqacivalentto decidingtlcedispute betweentlze parties.
The Court, being a Court of Justice, cannot even in giving advisory
opinions, depart from the essential rules guiding their activity
as a Court."l (Italics added.)

It is submitted that the rationale of this decision is fully applicable
to the converse case, present here, involving full participation of
the State jvhose duties were litigated, with its consent and partici-
pation in the Advisory Opinion of II July 1950.
This Court considered the nature of advisory opinions in the
Peace Treaties case, involving the question whether procedures for

settlementinstituted by certain Peace Treaties were applicable to a
given dispute. The Court rendered an advisory opinion even though
some of the States parties to the treaties did not participate in the
hearings. Majority and dissenting opinions alike recognized
implicitly or explicitly the principle of Eastern Carelia, namely that
an advisory opinion as to a dispute is "substantially equivalent to
deciding the dispute". The main disagreement in Peace Treaties
was whether the subject-matter of the advisory opinion involved
the merits of the dispute and not whether the principle ofEasterrz

Careliawas valid. To illustratethis point, and, also, to show that the
majority opinion recognized the validity of the Permanent Court's
holding in Eastern Carelia, the following excerpt from the majonty
opinion is presented :
"In the opinion of the Court, the circumstances of the present
case are profoundly different from those which were before the
Permanent Court of International Justice in the Eastern Carelia
case (Advisory Opinion No. 5), when that Court declined to give
an Opinionbecause it found that the question ut toit was directly
related to the main point of a dispute actu& pending betiveen
two States, so that answering the question would be substantiall~~
equivalent to decidingthe dispute between the parties, and that at
the same time it raised a question of fact which could not be
elucidated without hearing both parties.
As has been observed, the present Request for an Opinion is
solely concerned with the applicability to certain disputes of the
procedure for settlement instituted by the Peace Treaties, and it
is justifiable to conclude that it in no way touches the merits of
those disputes." 3

The majority opinion thus foilowed the doctrine of Eastern
Carelia, but distinguished the two cases.

,
Id. at 29.
Advisory Opinion: I.C.J. Reports 1950, p. 65.aria, Hungary and Rottaitia,
a Id. at p.72.IO0 SOU7'H WEST AFRICA
Secondiy, the Court'sJvisory opinions eitjoy thesame a~tfaorily
as itsjudgments, and are cited by jurists who attribute the same
importarice to tliem as to judgments. The Court itselfrefers to
its prevjousadvisory opinions in the same way as to its judgments.
'Tliirdly, anadaisory opilzion~whichis cuncer~zedwith a.dispipute
between States from a legal$oixt of uiew eimwr2ts to a definitive
decision %#on the existence or ?ton-existenceof the legdrelations,

which is ilzeszlbjectO/ the dispacte.1 (Italicsadded.)
Another judicial pronouncement on advisory opinions concerned
the very Opinion under discussion in thiç case, the rl July,

rggo Opinion, Inierrzational Stalus of Soztlk West A frica.judge
Laziterpacht in his separate opinion in ddmissibila'ty ofHearings of
Peiitioners By the Cornmittee 0.nSozblhWest AJrica,Advisory Opinion,
June I, 1956(I.C.J. Reports 1956) stated, at page 47:
"For it may nat be easy to characterize preciçely in legal terms
a situation in which South Africa declines to act on an Advisosy

Opinion which it was not legally bound to accept bui wlzichgave
expressioa io the lqal jbsitiow as ascertaincdhy the Cou~t and as
acceptd by the Ge&eralA~sembly." (Italics added.)
At page 46, Judge Lauterpacht characterized the Opinion as
stating "the law recognized by the United Nations".

Irnplicit iJudge Lauterpacht 'scornrnents is the recognition that
although advisory opinions may not bind a Çtate ta guide its actions
by law,advisory opinions can and do state what the law requires.
There would also appear to be an implicit recognition of the
anomalous situation which would occur if the law were one thing
for the United Nationç and the opposite for the Union of South
Africa.

(b) Ofii~iionsof Wrilers

IMos t urriters are in substantial agreement with the foregoing
judicial precedents, and even thoçe who do not agree fully, never-

thelesç recognize the high authority of an advisory opinion.
The late Judge ManZey O. Hudson placed leçs ernphasis on the
effect of advisory opinions than other writers, but he nevertheless
recognized the substantial force of an advisory opinion, especially
in his Eater writings. ln a note in the "American Journal of Tnter-
national Law"? Judge Hudson stated:

"Adviçoryopinions are precisely what they purportto he. They
are advisory. Not legal advice in the ordinary sense, not views
expressed by counsel for the guidance of clients,bzct pronozcnce-
menis as to the law a$+licablei~ gicela sit~catioformztlatedafter
'due rdele'beratinf' thecourt

l Id.at pp. 101-102.
American Journal O/irit8rnairoiLaw. Vol. 42.No. 3, July, 1948 at630. "States and organizations intercsted, whether they have appeared
to 'furnish information' or not, continue to have a freedom to
deterrnine upon the course wliich tliey will adopt with reference
to the matter which an opinion relates. 1'0tlzeextent to which tlze
course adopted follorvsthe lare,applicable, tltey zvill feel impelled to
heed the authritutive ex9osition of tlzat law in an opinion of the
Court. I" (Italics added.)

Other writers have gone much further. M. Politis has stated that
advisory opinions are "in reality no longer such", and are "equiva-
lent in the eyes of the Council, of publicopinion, and of the interested
parties to a judgment."
A rniddle ground can be found in the writings of Rosenne:

"The [Advisory] opinion has no binding force because in normal
advisory proceedings therc are no parties upon whom the con-
tractual obligations can be imposed. In that sense only can it be
said that no res judicata rcsults from an advisory opinion. This
does ?rotagect tlce quality of the opinion as aîc autlzoritativepro-
nozcncenten tf zuhattheLawis ..."'(Italics addcd.)

F. Blaine Sloan confirms the foregoing doctrine, cogently des-
cribing the rationale of the Permanent Court's ruling in Upper
Silesia :
"Certainly an aclvisory opinion will not have greater weight
than a judgment in this respect [slave decisis]. However, neither
does it appear to have lesser weight. International jurisprudence
bears witness that the advisory opinions and judgments of the
Permanent Court of International Justice are cited with equal
authority and respect. While the concept of stare decisis is not
recognized as a principle, as it is in Anglo-American law, the Court
will not lightly depart from the lcgal reasoning of its prior
decisions."

"Suppose ... that after the giving of an [advisory] opinion
there is an attempt to bring the identical question to the Court
by way of application by the State against whose interest the
advisory opinion was given. Forrnally the court would probably
be in a position to entertain the case but from a practical viewpoint,
its judgrnent in al1 likelihood would be esactly the sarne as its
opinion. It is true, however, that this miglit depend on the extent
to which there were full hearings of the issues in the advisory
opinions."

As already noted, there were full hearings of the issue in Germarl
Settlers in Poland, the. advisory case preceding Upper Silesia, just
Id. at 631.
' Records of 9th Ass. of Leagiic of Nations, 1st Comm. at 47.
a Rosenne. I?rtevriaiional Cour: of Jztslice 492-493 (~957).
"Advisory JurisdictioiOf thc 1ntcrri:itional Court of Justice", 3- California
Law Review 830 at 851 (1950).
Id. at 852.as thcre were full hearings of the issues in I?tter)tatio?zaS ltatzis of
Sordk IVest Africa, the advisory proceeding preceding the present

crise.

2. The Practice of States

Thc gencral practice of States has been to rccognize that an
advisory opinion as to a dispute between States is substantialiy
ecluivalent to a decision on the merits of the dispute. Indeed, it is
bccause of tliis recognition that States have insisted that the Court

may not reiidcr advisory opinionsconcerning their rights and duties
without their consent, just as is the case with contentious pro-
ceedings. Such an attitude of States is described by Judge Winiarski
in his opinion in Peace Trenties:

"... the Court, as a judicial organ, will surround itself with every
giiarantcc to ensure tliorough and impartial esamination of the
question [in an advisory proceeding]. For the same reason, States
scc ti-icirriglits, their ~)oliticalintcrcsts and sometimes their inoral
position affcctcd by an opinion of the Court, and thcir disputes are
in fact scttlcd by tlic answcr whicli isgiven to a question relating to
the interest Statcs have in being Iieard in advisory proceedings,ains

judges, which would be perfectly useless if advisory opinions werenal
mere iitterances having no real importance in respect of their
rights and interests. This is also wliy the Permanent Court did
not hesitate to grant States the necessary guarantees, and, in
order to esclude any possibility of introducing compulsory juris-
diction 11ythe circuitous means of its advisory opinions, it deliber-
ately laid down in Opinion No. 5 [Eastern Carelia] the principle
of the consent of the parties (Article 36 of the Statute)."

To corroborate the above views of Judge Winiarski, reference
may be made to thc practice of the United States of America.
\men the United States acceded to the Protocol of Signature of
the Statute of the Permanent Court of International Justice, it did
so with the following rcservation:

" ...Nor shall it [the Court] without the consent of the United
States entertain any request for an advisory opinion touching any
dispute or question in which thc United States has or claims an
interest."a

Similarily, the Union of Soviet Socialist Republics has also in-
sisted that the Court may not consider, in advisory proceedings,
disputes to nrhich it is a party without its consent, as is exemplified
by the Eastern Carelia Case.

It~ferprefatioit of PeacTreaties liiit~ttl~uria', Hrorgavy and Romania,
Advisory Opinion: I.C.J. Reports 1950, p. 92.
?L.N.C./i66/RI/66.1929. V, p.97. MEMORIAL OF ETHIO'PIA 103

iJudicia1 and sçholarly precedent and the views and practices of
States çonfirrn and support the practice of the Permanent Court in
UfifierSilesia wherein the Permanent Court stated that ithad al-
ready ruled upon an issue in an advisory proceeding and then re-
affirrned that ruling when the same issue arosc in the contentious
proceeding.
It iç respectfuliy submitted that in the present case, the Court
should similarly reaffirm the advisory opinion it delivered inInter-
national Statas ofSozcthWest Afriça. SOUTH WESTAFRICA

ALLEGED VIOLATIONS BY THE UNION OF THE SECOND
PARAGRAPH OF ARTICLE 2 OF THE MANDATE

A. STATEMEN OF LAW

The second paragraph of Article 2:of the Mandate for South
West Africa provideç:
"The Mandatory shall prornote tothe utmost thc malerial and
maral reicli-beiamd th socialflrogressof the inhabitants of the
Territory szihject to thc preseMandate." (Ttalicsadded.)

The second paragraph of Article 2 of the Mandate was derived
from, and waç intended to give effectta, parapaph I of Article22
of the Covenant of the League ofNations, which reads:

"Article22
r.To those calonieç and territories whicas a conçequence of
the late warhave ceased to be underthe sovereigntyof the States
which formerly governed them andwhichare inhabited by peaples
not yet abletostand hy themselveç under the strenuous conditions
of themodern world, there shouldbc applied the principle ththe
mell-beingand development of such peuples form a sawed trwl of
ciuilizutioa and that seciirities for the performancethiç trust
should be embodiedin thiç Covenant." (Italics added.)
The purport of the languagc in Article 2 of the Mandate and
Article 22of the Covenant, quoted hereinabove, isclear and explicit.
The Union is not free to administer the Territory in ariy rnanner it
chooses. It may not subjugate the majority of the inhabitants of
the Territory in the interest of a minority.It may not act in dis-
regard of human rights so basic and so fundamerital that without
them the ruleç of socialintercourse muçt always be determined by

force.
The Applicant is aware that differences of opinion could arise
as to close or doubtfvl issuesconcerning the applicatioof the tems
of Article22 of the Covenant and Article 2 ofthe Mandate. In the
present case, however, theissuesof factand law, and of the applica-
tion of law tofact,do not involve corijecture.The violation ofthe
cluty to promote "material and moral well-being andsocialprogresç"
is beyond argument.
Any doubt çoncerning the interpretation and application of
Article z ofthe Mandate and Article 22 of the Covenant tu this
case is resolved in the light of currently accepted standards as
reflected in ChaptersXI, XII and XII1 of theCharter of the United
Nations. The Union, by becoming a rnernber of the United Nations,not only must have accepted the validity of the principles coiltained
in the Charter, butby the act of membership, undertook to comply
therewith.
The above cited Articles of the Uriitcd Nations Charter are a2avZ
materiw aith Article2 of the Mandate and Article22 ofthe Covenant.
Itis a well-settled doctrine of international law that when the
t~rovisionsof instruments are in$sri ylzater one,rnay be used as a
guide to the interpretation of the other.
Chapters XI, XII and XII1 of the Charter are addressed to

esçentially the same subject-matter awas Article22 ofthe Covenant.
Theçe Chapters were formulated in the context of problems of
precisely the same type as thoseto which Article22 of the Covenant
was addressed.
Chapters XI, XII and XII1 of the Charter embody a projection
and current application of the principles andrnethods of Article22
of the Covenant. This appearç plainly, for example, from Article 77
of the Charter, which teadç in part:

"Article 77

I.The trusteeship çystem shall apply tu such territories in the
following çategorics as rnay be placed thereunder by means of
trusteeship agreements :

a. tersitories now held under mandate;".

Chapters XI, XII and XII1 of the Charter not only deal with
problems sirnilarto those to which Article 22 of the Covenant was
addresçed, but do so in siniilar Panguage and intentFor example,
Article 77, paragraph I,of the Charter, quoted in part above, also
provides that trusteeshipçmay be established for "territoriewhich
may he detached from enerny states as a result of the Second
World Mfar". This is a paraphrase of the opening clause of para-
graph r of Article 22 of the Covenant: "To those colonies and
territories which asa consequence of the late war have ceased to
be under the sovereignty of the States which formerly governed
them ..."
in view of (a) the bistorical relationships between Article22 of
the Covenant and Chapters XI, XII and XII1 of the Charter, (bjthe
sirnilanty-indeed, to a degree, the identity-of the problems to
which Chapters XI, XII and XIII of the Charter and Article 22 of
the Covenant are addresçed, and (c) the similarities in subject-
rnatter, structure and expression, referencernay properly be made
to the terms of Chapters XI, XII and XIII ofthe Charter in con-
struing Article 22 of the Covenant, as well as Article 2 of the

Mandate, which is of course derived from the Covenant.
The doctrine of "im +ri maieriaw "as given effect by the Per-
manent Court of International Justice in the case ofI~terflrelalion
8106 SOUTH WEST AERICA

of the 1919 Co~ventionon. Employmerzt of Womefi atNig:ghtiIn its
judgment, the Court çanstrued a provision of a Convention adopted
in 19x9 by the International Labor Conference,taking into account
the terms of another Convention-the Eight Hour Day Convention
-relating to a comparable çubject-matter and .problems. The
Court said:

"The sirnilarity both in structure andin expression between the
various draft conventions adopted by the Zabor Conference in
Washington in zgrg Zeads the Court to attach some importance to
the presencein one of the other Conventionsof a specific exception
thatthe provisionsof that Convention shouldnot apply to perçons
holding positions of supervision or management, nor to persons
employed in a confidential capacity." "

In the present proceeding, reference to Chapters XI, XII and
XII1 of the Charter is a11 the more appropnate by virtue of a
Resolution of the Assembly of the League of Nations of April 18,
1946, explicitly noting "that Chapters XI, XII, and XIII of the
Charter of the United Nations embody pinciples corresponding to
those declared in Article 22 of the Covenant of the League." The
Resolution states, in part :

"The Assemblv,
RecalIing that Article 22 of the Covenant applies to certain
territories placed under Mandate the principle that the weil-being
and development of peoples not yet able to stand alone in the
strenuous conditions of the modern world form a sacred trust of
civilizatio;

3. Recognizesthat, on the termination of the League's existence,
its functions wiih respect to the rnandated territories will corto
an end, but notes that Chapters XI, XII and XIII of the Charter
of the United Nations embody principles corresponding to thoçe
declared in Article22 of the Covenant ofthe Leaguc;
4. Takes note of the expreçsed intention of the members of the
League now administering territorieunder Mandate to continue to
administer them for the well-beingand development of thepeoples
concerned in accordance with the obligations contained in the
respective mandates, until other arrangements have been agreed
between the United Nationsandthe respectivemandatory powers."
Itiç respectfully submitted that Chapters XI, XII, and XTTIof

the United Nations Charter are in pam rnat~ra'waith Article zof the
Mandate and Article zz of the Covenant, and, therefore, that the
terrns of the Charter rnay be employed in construing Article 2 of
the Mandate and Article 22 of the Covenant. Accordingly, we turn

r~ierpvetaiiO/ the 19x9Conventton otaEmpl~yment of Wonsen al Niglit,
P.C.I.J.Çer. AIE, No. 50 (1932).
Id. at 580-8r. NEMORIAL OF ETHIOPIA 107 .
now to a consideration of relevant provisions of Chapters XI, XI1
and XII1 of the Charter.

Article 73 of the Charter prrivides:
"Members of the United Nations dich have or assume responsi-
bilitiesfor the administration of territories whose yeopleshave not
yet attained a full rneasure of self-government recognize the prin-
ciple that the interests of the inhabitants of these territories are
paramount, and accept as a sawedtrmt the obiigalion to promote to
the uimost, within the çystem of international peacc and security
establishcd by the present Charter, the well-being of theirzhabita7tts
O(theseEerriloriesand, to tk.ielzd:
a. to ewszcre,with due respect for the culture of the peoples
concerned, iheir Ibolitical,ecowanaisacial,and edtdca$iowa ldvancs-
ment, tlacij;acstreatmevat, nd theirprotectiomagaiast abuses;
b. to d~velop self-gouermzertt,to taht:dm accoantof th6 political
aspirationsof thepeoples,alad toassistthem in theprogressivedevelu+-
ment of their freepolitical instihtions,according to the particular
circumstances of each territory and itç peoples and their varying
stages of advançerncnt; (Italics added).
. . . . . . . . . . , . . . . . . .?. . . . .

Article 76 provides:
"The basic objectives of the trusteeship system shall be ...

b. to promote the political, economic, social and educational
advancement of the inhabitants of the trust tcrritoriesand their
progressive development towardç self-government or independence
as may be appropriate to the particular circumstances of each
territory and its peoples and the freely expressed wishes of the
peoples concerned.. .
c. toencowagerespectfor hman righls and fw ftwdamantal free-
doms for ralwifhozcldist$nclio.as to racc." (Italics added.)

Itis submitted that the terrns of the second paragraph of ArticIe 2
of the Mandate and Paragraph 1 of Ai-ticle22 ofthe Covenantand
their stated purpoçes, read in the light of the terrnç and stated
purposes of Chapters XI, XII and XII1 of the Charter, establish
clear and rneaningful norms marking the duties of the Mandatory.
In accordance with these legal noms, the Mandatory's duties to
safeguard and promote the ''mateteri and moral weli-being", the
rsocial progress" and the "development" of the people of the
Territory must reasonably be construed to include:

(1) Economic advancement of the population of the Tenitory-
and notably of the "Natives" who constitute the preponderant
part of the total population in agriculture and industry;
(2) Rights and opportunities of members of the population
employed as laborerçin agriculture or industry ;

(3)Political advancement ofsuchperso~s through rights ofsuffrage,
progresçively increasing participation in the processes of govem-
ment, development of self-government and freepoliticalinstitutions ;108 SOUTH WEST AFRICA

(4)Security ofsuch personçand their protectionagainçtarbitrary
mistreatment and abuse ;

(5) Equal rights and opportunities for such personsin respect of
home and residence, and their just and non-discriminatory trcat-
ment ;
(6) Protection of basichuman rights and fundamental freedoms
of such persons;

(7) Ediicational advancement of such persons;
(8) Social development of such persons, based upon self-respect
and civilized recognitioof their worth and dignity as human beings.

B. STATEMEN OF FACT:S POLICIE .4NU ACTION RELATING TO THE
SECOND PARAGRA OPH ARTICLE 2 01: THE MASDATE

I.In this section of the Mernorial, the Applicant presents the
facts bearing upon the obligation of the Union, as the Mandatory,
to "promote to the utmost the material and moral well-being" of
the inhabitants of South West Afriça, to prornote their "social
progreçs", and to foster their "development" as a"sacred trust of
civilization".
2. The factual record of the Mandatory's conduct, as herein-
after more particularly set forth, has a dreary and forbidding
consiçtency. The Union has not odg failed to promote "to the
utmost" the material and moral well-being, the social progress,
and the development of the people of South West Africa, it has

failed to promote such material and moral well-being and social
progress in any significant degree whatever. On the çontrary, efforts
of the Union have in fact been directed to the oppoçite end. By law
and by practice, the Union has followed a systematic course of
positive action which inhibitç the well-being, prevents the social
progress and tbwarts the development of the overwhelming major-
ityof the people ofSouth West Africa. In pursuit of this systematic
course of action, and as a pervaçive feature of it, the Union has
instaiiedand maintained the policy and practice of aparthid.
Under apartheid,the status, rights, dutieç, o~portunities and
burdens of the population are determined and allotted arbitradg
on the basis of race,colorand tibe, in a pattern which ignores the
needs and capacities of the groups and individuals affected, and
subordinateç the interests and rights otthe great rnajority of the
people to the preferences of a minority. Çince this sectiothefMe-
motial is concernedwith the recordoffact,itdeals witha#artlaeias a
fact and not as a word. It deals with aflartheidin practice, as it
actudy is and as it actuaüy has been in the life of the people of the

Territory, and not as a theoretical abstractionA sober and objec-I MEMORIAL OF ETHIOPIA IOg

tive appraisal of the factual record, as hereinafter detailed, compels
the conclusion that apartheid, as actually practised in South West
. Afnca, is a deliberate and systematic process by which the Man-
datory excludes the "Natives" of the Terntory from any signi-
ficant participation in the life of the Territory except insofar as
the Mandatory finds it necessary to use the "Natives" as an indis-

pensable source of common labor or menial service.

2.Backgroz~ndInforntation :Area a?zdPopzrlalio?~
i
3. The Territory of South West Africa has an area of 318,261
square miles.' The Territory has been divided by the Union Govern-
ment into two main segments. The larger segment is known asthe
Police Zone. The Police Zone embraces generally the southern and
central sections of the Territory, being the richer and better devel-

oped portion,2 covering 258,571 square miles. The smaller segment,
lying to the north, is the poorer and less well developed portion,=
covering 59,690 square miles. It is usually referred to asthe "north-
en section" or as the area "outside the Police Zone". A map of
South West Afnca, showing the division into zones, is appended
to the 1958 Report of the Committee on South West Africa, which
has been filed herewith.

4. As of 1951, when the latest census was taken, the total popu-
lation of South West Africa numbered 434,081.~As of mid-1958,
the total population was estimated to have nsen to 539,000.~The

census report, reflecting the standard usage of the Union Govern-
ment, refers to the population as divided into four groups. The four
groups are descnbed as follows:
"(a) Whites.-Persons who in appearance obviously are, or who
are generally accepted as white persons, but excluding persons who,

although in appearance are obviously white, are generally accepted
as Coloured persons.
"(b) 1Vatives.-Persons who in fact' are, or who are generdy
accepted asmembers of any aboriginal race or tnbe of Afnca.
"(c) Asiatics.-Natives of Asia and their descendants.

"(d) Co1oureds.-Al1 persons not included in any of the three
groups mentioned above."6

l This figure is taken from U.X. Doc. No. A/AC.73/L.r.+,Annex 1,T1b(1959).
which derived the figure from the South West Africa Population Census8 May
1951. In U.N. Doc. No. A/AC.73/L.io aII (1957) the area of South West Africa is
given as 317.863 square miles (82,347,541 hectares).
Report of the Committee on South West Africa, U.N. Gen. Ass. Off. Rec.
14th Sess., Supp. No. 12at 21 (A/~IcJI) (1959).
No. A/AC.73/L.r4 at 5, para.tIIn(1959). 8 May 1951, cited in U.N. DOC.
Report of the Committee on South West Africa. U.N. Gen. Ass. Off. Rec. '
14th Sess., Supp. No. 12.p. 8, para. 55 (.4/q191) (1959).
Id. at 4, para. 9. 1IO SOUTH WEST AFRICA

The "Whites" are sometimes referred to as "Europeans". The
term "Coloured" ordinarily means any person of mixed "European"
and "Native" descent. The term "Native" is sometimes applied to
persons having one parent who belongs to an "aboriginal race or

tribe of Africa".
5. Since the foregoing terms are employed in the laws and other

texts of the Union and the Territorial Administration, and represent
differences in the legal, as well as in the economic and social status
of the inhabitants, the Applicant \vil1employ these terms in the
Mernorial.

6. Of the total population of the Terntory, as of 1951, when the
latest census was taken, the "Natives" numbered 366,885; the
"Europeans", 49,930; the "Coloured", 17,262; and the "Asians",
4.' As of mid-1958, the figures were estimated to have risen to
452,000 "Natives", 66,000 "Europeans", and 21,000 "Coloured." 2

7. As of 1951, a majority of the population, 227,912, lived in the
smaller northern section, outside the Police Zone. The population

of the Police Zone, despite its larger size, numbered only 203,169.
Outside the Police Zone, the population was composed of 227,750
"Natives", 136 "Europeans", and 26 "Coloured". Inside the
Police Zone, the population .was composed of 139,135 "Natives",
49,794 "Europeans", and 17,236 "Colo~red".~

8. Of the population outside the Police Zone, the vast majority
live in the Ovamboland Native Reserve, the population of which
waç estimated in 1956 to number slightly over 200,ooo.~

g. The entire Temtory outside of the Police Zone is classed as
rural. Urban areas are found only within the Police Zone.2

IO. Of the "European" population of the Temtory, asof the
1951 Census, the preponderant majority, 45,439 out of 49,930 were
citizens of the Union. Classified by their mother tongue, as of
mid-1958, 33,091 of the "Europeans" were Afrikaans-speaking,
11,931 German-speaking, and 4,158 English-~peaking.~

3. Well-being,Social Progressand Development: theEconomicAspect
(a) Statement ofLaw

"In accordance with these legal norms, the Mandatory'sduties
to safeguardand promote the 'materialand moral well-being',the
'socialprogress'and the 'development'of the peoplesof the Ter-
ritory, must reasonablybe construed to include :

l U.N. Doc. No. AlAC.731L.14at 5-6, parI1-16.and Annex 1.Table I (1959).
Report of theComrnittee on South West Africa, U.N. Gen. Ass. Off. Rec.
148hReport of the Committee on South \Vest,Africa. Cen. Ass. Off. Rec. 14th Sess.,
Supp. No. 12at 8, para. 56 (A/qrg~) (1959). MEMORTALOF ETHIOPLA III

(1) Economic advancement of the population of the Territory-
and notably of the'Natives' who constitute by far the preponderant
part of the total populationin agriculture and industry;
(2) Rights and oppostunities of inembers of the population
employed aslaborers in agricultureor iridustry;...
(3) Social development of such persans. based upon self respect
and çivilized recognitionof their worth and dignity as human
heings."'

(bj Stalemerztoj Facts

Background Information :
The Economy of South WestAfrica
Ir. Economic activit y in South West Africa consists prirnarily
of agriculture, more particularly the saiçing of livestock ; mining ;

and fishing, together with the processing of fish products.
rz. Recause of the low and uncertain rainfall, crop farrning
is feasible only on a lirnited basis. In the northern areas outsidethe
Police Zone, virtually al1 agricultural products are consürned
IocaIly by the producers. Within the Police Zone, however, much
of the produce is sold on the domestic or foreign market, thus

entering into the monetary econorny. In the northern and central
areaç of the Police Zone, agricultural activity centres on beef and
dairy farming. In the southern reaches of the PoliceZone, the sheey
induçtry predominates. The farmers raise Karakul sheep, £rom
which the yield iç rnarketed chiefly In the form of pelts, sold in
Europe and North America as "Persian Lamb" or "Astrakhan fur".
Exports £rom the Police Zone in the form of beef, dairy products,
and pelts were valued, as of 1956, at some £13 million a year.
Agricultural products consumed locdly within the PoliceZone were
estimated a€ about ~600,000 a ~ear.~

13. In the period since the end of World War Il, there has been
a rapid growth in fishing and in the processing of fish-products.
The çhief crops are rocklobster tails, sardines, fish meal, andfish
oil.Tn the aggregate, the vaIue of fish products has been estimated
at about £6 miUion a y~ar.~

14. In the sarne period, çince the end of the Second World War,
the extent and rate of operations in mining has grown by leaps and
bounds. Aggregate sales expanded from about LI .5million in 1945
te i22.9 million in 1955. T~he minera1 output includeç diamonds,
the largest single item in value, copper, lead, and other metals.
While small mining enterprises are nurnerically in the rnajority,

lPp. 78-79setpm.
' U.N. Doc. AiAC.73L.10 at rz.para.6; cf.p.80, para.211 and 81, paras.
21a-Id. at80-81,paci 2x4.
' Id. at 80, para213.II2 SOUTI.1WEST AFKICA

the greater part of the output of the rnining industry is represented
by four large producers.l
15. Total ~ublic revenues of the Territory in the year 1955-56
amounted to over £12 million. Of this total, upwards of L5 million
were raised through income taxation. In part because of this in-
corne, and in part because of a surplus carried over from the pre-

viouç fiscal year, the Administration of South West Africa was able
to budget fora total expenclztureof about £10.5 million in thefiscal
year 1955-56.2

Well-being, Social Progress
and Development in Agriculture

16. As has already been explained, the bulk of the "Native"
population of the Territory is to be fovnd in the northern areas
outçide the Police Zone. In consequence, the "Native" population
isin the main far removed from the principal areas of modern
economic development and activity . Within the northern areas,
the "Natives" survive chiefly by meanç of subsistence agriculture,
including both crops and livestock. While these activities kcep the
"Native" population alive under normal conditions, they do not
make jt part of the modern monetary economy. The "Natives"
from the northern areas obtain access to the modern monetary
economy almost exclusively by serving as laborers on the farms
within the Police Zone and in industry.3

~7.Until 1954, the land in "Native" reserves remained the
property of the Administration of South West Africa, except in
the case of the Berseba and Bondets Reserves, in which the land
was the property of the tribe. In 1954, the South West Afncan
Native Affairs Administration Act was adopted. By its terms,
title to al1landsetapart for theoccupation of"Natives" in "Native!'
reserves wasvested in the South African Native Trust. The Minister
ofNative Affairs of the Union of South Africa serves asthe Trustee
of the South African Native Trust, and in that capacity exercises
much the same powers and functions with respect to "Native" land
in South West Afnca as he doeç with respect to çuchland included
within the Union itselfn4

18.On the commercial farms, owned by "Europeans" ,"Natives"
work màinly as farm laborers and domestic servants. In some cases,
they are allowed to graze a certain number of stock of their own
on these farrns. "Natives" available locally for farm Iabor on the
commercial farms within the Police Zone are supplemented by
other "NativesJ' rrecruited from the Northern resewesE5The process

Ibzd.
*Id. at 82,para.218.17.
Id. at83, para.223.
6Id. at82, para. 218-19. MEMORIAL OF ETFFIOPIA II3

of recruitment of such "Native" labor for work on the cornmerciai
fams is sirnilta that applied in the case of recmitrnentof"Native"
labor for employment with industry. As a matter of convenience,
this process of recruitment is descnbed below, in the paragraphs
dealing with industrial ernployment."

19. One source of "Native" labor authorized by law for "Euro-
pean" owned commercial farms rnerits particular comment. Under
land settlement laws, described below, considerable portions of
land have been dlocated by the Administration for settlement by

"Europeans". "Natives" iiving on such lands at the tirne cifsuch
an ailocationmay be required under the land settlement lawç either
tomove or towork for the "Eutopean" farrner.
20. In "Native" reserves and other areas reserved for "Native"

occupation, neither "Natives" nor "Europeans" are entitled to
acquire ownershipm3
21. While the Govemment of the Union made a statement in
1946 which seems to imply a possibility thatindividual "Natives"

rnay own land, the implication appears to be negativeb dy the
evidence.
a. In itsreplyto theTsusteeçhip Councilquestionnaireconcerning
the administration of South West Afncafor the year1946, the Union
> Government stated :
"Natives rnay buy land outside thereservesand they may ocçupy
such landprovidedit is not situated in an urban area to whichthe
provisions of the Natives (Urban Areas) Proclamation No. 34 of
1 1924have been applied." a

b. Section 7 of the Natives (Urban Areas) Proclamation, 1951,
which supersedes the 1924 Proclamation, prohibits any "native"
and any "association, corporate or unincorporate, in whicha native
ha any interest, ..except with the approval of the Admiriistrator,
given after consultation with the localauthority concerned,"from

entering "into an agreement or transaction farthe acquisition from
any person other than a nativo ef any land situated within an urban
area or a-rural township, or of any right to suchland, or of any
interest therein or servitude thereover."
Furthemore, as more particularly set iorth in paragraph 27
below, the Union Goverrimenthas stressed its conviction that "the
Natives generally have not yet reached the stage of development
where they wouid benefit from individual land ownership, parlic-
vlarly offarms".

lSee post, paras50-57.
9Report of the Cornmitteeon South WestAfrica,U.N. Gen. Ass.Off.Rec.
14th Sess.,Supp.No. 12 at 17,para. 123(Ahrgr) (1959).
aU.N. Doc. No. AIAC.731L.ro.at 83, para224(1957).
U.N. Doc. No. AIAC.731L.31Add.I, at 30s.para.2 (1954).
.-. .a (r.-r)Laws of SouthWest Alrica, ppgoff.(hc. Xo. 56of rgg~)5 7 (7).
L114 SOUTH WEST AFRICA
, III sum, on the basis of available information, it may be inferred
that no individual "Natives" own land or can own land anywhere
within the Territory of South West Africa."

22. The significance of the foregoing data can be appreciated
more fully in the light of the history of land allocation and land
allenation within the Territory. When the. Union of South Africa
assumed the Mandate, the Union declared a11unallocated land with-
in the Territory to be govemment land. Thereafter the Union
transferred authority over government or Crown land to the

"European" Legislative Assernbly of the Territ~ry.~
23. Daring the period of the Mandate, a major portion of the
land area of the Temtory haç been transfemed to "Europeans"
for permanent ~ettlernent.~ In the systematic execution of this

policy of alienation of land to "Europeans", the Union continued a
pzocess which had been begun by the former Geman Colonial
regirne. The Union Government, indeed, took cognizance of the
prior seizuze of land from the "Natives" by the German Colonial
regirne. In the Union's report to the League of Nations in 1922, it
discussed the confiscation of "Native" lands in the following tems :

"The Natives, who of course had been the original owners of the
land which had ..been confiscated by the German Government,
cut up into farms and sold or allotteri to Europeans, had formeri 1
the expectation that this Administration (Mandatory) ...would
similarly confiscate German-owned farms and thus the Natives
would recover thelostland and homes previouslyoccupied by thern.
. Almost without exception each section asked for the allotment of
'the old tribal areas, in which vested rights had accnied and the L
utmost difficultywas experienced in making thern realizethe utter
impossibilityof cornplying with such a request."

24. The Mandatory inçisted on making the "Natives" realize
"the utter irnpossibility of complylng with such a requeçt" that
land seized from them be retumed to thern. It: also went much
further. It continued and extended the systematic alienation of the
land to "Europeans". During the first three yearç of the adrninis-
tration pf the,Mandate alone, from 1920 to 1g22, 4,884,625 hectares
were transferred to "European" settlers. The process has been
rnaintained, subject only to a temporary interruption by the

Second World War. Indeed, by'rgzg, most of the available govern-
ment land (Le. previously unallocated land-see para. 22 supra)
within the Police Zone had been distributed. The Union then began
I
Ibid.; see also U.N. Doc. AlAC.731L.7at 333, paras. 154-155.
Report of the Cornmittee on South West hfrica.U.N. Gen. Ass. Off.Rec.
14th Sess.Supp. No. 12 at 17,para. r1-5(A141g1) (1959).
Id.at 17, paIa.117
forthe Yearf1922,hatf13, ascitedinfReport of theCornmitteeuon SouthAWesta
Africa, U.N. GenAss.Off. Rec. 14thses^Çupp. No, 22at r7, paraIrg (A141g1)
(~959). MEhlORIAL OF ETHIOPIA

buying additional land, mainly from private companies which had
large holdings, for division and distribution among European
farmers.
25. Following the end of World War II, the process of allocation
and alienation was resurned. As the çupply of land available for
such distribution reached its limits, the Union began to make

additionaI land available by sucçessive extensions of the Police
Zone boundary. The Zone was extended by successive steps in
1953,195 a4d 1956.By the end of 1952 (not counting the increaseç
thereafter) , "European" farm lands represented 45 per cent %o he
total areaof the Territory ;l and sorne of these lands bordered 'upon
the northern "Native" areas outside the Police Z~ne.~~To appreciate
the significance of the 45 per cent figure, it must be borneïn rnind
that the entire "European" population of the Territory constituted

less than rz per cent of the total population, and that an extensive
portion of the remaining land is desert and cannot be used for
agricultural purposes. a
26. The allotment of land to "Europeans" for settlement waç
facilitated by substantial governmental assistance. The settler
obligated himself to occupy the land, to apply approved çoil con-

servation measures, and to develop and maintain certain perma-
j nent improvements. The Government gave financial' assistance
through loans for improvements and loanç for the purchaçe of
livestock. The initial allotment was for a probationary period under
a renewable one-year leaçe, during which a nominal rental of one
paund per year was charged to the settler. Following the proba-
tionary period, the land waç leased to the settler for fiveyears. In
the firstof the five years, no rent was charged. Thereafter, an
annual rent was payable, at the rate of2 peç cent of the purchase

price of the land for the second and third years; 39 per cent, for
the fourth and fifth years ; and 4 per cent thereafter, if the lease
should be extended, as it might be, up to a maximum of five addi-
tional years. Within the five year period (or any extension of it), the
settler might exercisean option ta purchase the land. The purchase
price would then be payable in half-yearly instalrnents over a
period of thirty years. Even after payrnent of the full purchase
: price, the settler could obtain title to the land 6nly if he was a
national of the Union and, except for special 'and unusual cases,
if he had ocçupied the land for ten years.' ,

27. While the Union Government has stated in the paçt that
îthese land settlement laws apply equallk t~ .:'EuropeansU and

l Id., at 17, para120-123;U.N. DOC. No. A\AC.73/L.ro, at85, para.232
('957).
"UReport ofthe.CornmitteeonOSouth WéStAfrica, U.N. Gen. Ass. Off.liec.
12th Seçs.Supp.Xo. 12 at15,para. 66(A!3626()1957)see also para3-10anta.
' U N. Dot. No. AIAC.73lLIO,at 85, paras.229-30 (1957). .I16 SOUTH WEST AFRIC.4
"non-Europeanç", it has alseinsisted that "the Natives generally
hiive not yet reached the stage of development where they\vould
benefit from individual land ownerçhip, particularly of farrn~".~
Moreover, the standard form of leaçe contains a condition that, if
the lessee marnes or habitually cohabits with a "Native" or
"Coloured" person, his lease becomes subject to irnrnediate cancel-
lation. While the settler rnay subletor transfer his interest in the

land with the wntten consent of the Administrator, he rnay do so
subject oiily to anexpress condition that "in no case will consent
be given to any hypothecation, asçignrnent, transfer, sub-lease or
subletting to natives, Asiaticsor coloured persons".'

28. Reference has already been made to the drastic choice
forced upon "Natives" or "Coloured"persons resident on any land
at the time of itsallocation to a ~ettler.By the terms of the stan-
dard lease, the settler is entitied insistupon the removal ofany
such "Native" or "Coloured" person, unless the "Native" or
"Coloured" perçon agrees tobecome a hired hand. If the''Native"
agrees to become alaborer on thefam, by the temç of the standard
ieaçe "consideration for such labor or services rnay take the form
of placing at theirdisposa1an area for cultivation orthe depaçtur-
ing of stock,or for bothsuch purposes." a
I
zg. During 1958 and 1959 the Tenitory experienced a very acute
drought. Extensive governmental measures were undertaken for
the reliefof persons affected.As of May 14, 1959 ,n aggregate of
wz,6oo,ooofrom the Territorial budget had been made availablefor
drought relief. This aggregat included jlr millionmade available 4'
through the commercial banks , 1,200,ooo to the Land Board and
Land Bank of the Administration, £ z5o.000 to two farmer'ç
CO-operative soueties and the remaining 150,ooofor unforeseen
ernergency relief.

30. The impact of the drought was severe within the "Native"
reçerves. The Adminiçtrator informed the Legislative Assembly,
as of May 22, 1959 ,hat stock losçesin "Native" reçerves within
the Police Zonein the periodof one year between April 1,195 8nd
March 31, 1959amoiznted to 49,948 head of srnall stock.As to the
large "Native" reserves in the northern area outside the Police "
Zone, he stated that no figures were avdable but that "Ovam-
boland was hit the hardest,with the Kaokoveld second on the List."
In response to a question concerning what rneasureç, if any, had
been taken by the Union or by the Territorial Administration tor

' Quoted in U.N. Doc. No. A[AC.~J/L.Iat 56,para. 233 (1957).
' Seepara. 19,anta. r
"Quoted in U.N. Doc.No.AIAC.~JIL.I~,at 86,para. 233(19575.
' SWA, Legisiatire Assembly Votes and Proceedings (195961-62,cited
in U.N.Doc. No. A/AC.73/L.rqat 67,para.185and footnoterql(1959). MEhIORIAL OF ETHIOPIA II7
relieve the "Natives" from the effect of these losses, the Adminis-

trator replied :
"No special steps were taken to try to prevent stock lossesin the
Bantu areas and reserves except that for somereserves luceme had
been ordered early. In addition arrangements were made enabling
some of the inhabitants to trek with their stock to another reserve
where the grazing is plentiful. At that time they were not disposed
to do so. Theinhabitantsthemselveseitherpaid m othmise the costs
werecoveredbytheirown tribalfunds.1(Italics addcd.)

31. When asked whether the Union Government or the Terri-
torial Administration were considenng any new measures to assist
the "Natives" toward rehabilitation, the Administrator replied (on
May 22, 1959) "Up to the present no rehabilitation measures have
been considered as the end of the drought and its consequences are

not nearly in sight yet. "2
32. In 1960, details were made available concerning the distrib-
ution of the ~2,600,000 of drought assistance to which reference has
already been made.3 Of this surn, two items, aggregating ;622,271,
were specifically identifiable as a relief expenditure for native^".^
In addition, an unascertainable part of a further item of L41,813

made available generally for a subsidy on mealies, at 3 shillings
a bag, appears to have been used to subsidize mealies sold to
> "Natives".6
To sztm up the record of the Mandatory in regard to the well-being,
social Progressand developmentof the peopleof South West Africa in
agriculture :

c 33. The foregoing recital requires no elaborate comment or
embellishment. The import of the facts, taken as they are, bare and
cold, is unmistakable. By a deliberate, systematic and consistent
course of conduct, the Mandatory has discriminated against the
"Native" population of South West Africa in agriculture, In so

doing, it has not only failed to promote to the utmost the well-
being of the "Native" population engaged in agriculture, but in
major respects it has reduced the degree of their well-being. It has
not only failed to promote to the utmost the social progress of the
"Native" population engaged in ageculture, but has reversed possi-
bilities of social progress into a steady regression. It has not only
' failed to promote to the utmost the development of agriculture for
the "Native" population of the Territory, but'it has reversed that

development into a process of deterioration and increasing insecurity,
\more particularly :

lId. at 67-68, paras.1%-87.
' SWA, Legislati\,e Assembly Votes and Proceedings (1959). pp. 107-108.
quoted in U.N. Doc. No. AlAC.731L.14. at 68. para. 198(1959).
aSee para. 29, ailte
*U.N. Doc. NO.A/AC.~~/L.I~, at 69. paras. 193-94 (1959cf.pp. 68-70, paras.
190Id. at 69-70, para. 194. 118 SOUTH WEST AFRICA
(i) The Mandatory has progressively reduced the proportion of

farm land available for cultivation or pastoral use by the "Native"
population, while it has progressively increased the proportion of
such farm land available to "Europeans". This has been camed
to the point where less than 12 per cent of the population, being
"White", enjoys the use of some 45 per cent of the total land area;
whileover 88 percent ofthe population, being "Native"or Coloured",
js confined to 27 per cent. Much of the remaining land area is desert.

(ii) The Mandatory has denied the possibilities of individual
ownership ofland tothe "Native" population, andhas confined these
rights to the :"Whiteu population.
(iii) The Mandatoryhas limited the role of the "Native" popula-

tion in agriculture to (a) subsistence farming within "Native"
reserves and (b) employment as common laborers or domestics on
"European" commercial farms. In consequence, the "Native"
population has enjoyed almost insignificant participation in the
expanding possibilities of commercial agriculture in the Territory.

(iv) The Mandatory has offered little hope to the "Native"
population, and little promise or possibility of future development .
(v) Even in connection with emergency relief made available
in time of drought, the Mandatory has used ovenvhelmingly the
larger part of relief funds for the assistance of the small "European"
t
proportion of the population, while the relief funds used to help the
large "Native" population have been confined to a comparative
pittance.

, ,Well-Being, Social Progress
and Development in Industry
> . , .
Fishing Industry

34. As has been explained, fishing and the processing of fish
products constitute one of the principal sectors of the economy
of South West Africa.'

35. The annual value of canned fish, fish ineal, fish body-oil and
rock lobster tails produced in South West Afnca amounts to some
~7,000,ooo.~The administration of, South West Africa, in recog- -
A? nition of.the importance of the fishing industry, has contnbuted
financial support to research and development for the improvement
of the industry and the utilization of its product~.~
:~
36. The enterprises in the industry are essentiallÿ "European"*
~\ owned and operated. While more than 3,500 "non-Eiiropeans" are

..?South West Africa. Annual (1g60). p. 123. aisocited in U.N. Doc. No.
,, AlAC.731L.14, at 78, para. 223 (1959).
'U.N. Doc. No. AIAC.731L.13. at 64, paras. 177-78 (1959). MEhlORIAL OF ETHIOPIA II9

employed in the fishing industry, the role of the "Natives" is sub-
stantially confined to unskilled 1abor.l

Mining and Minerals

37. The importance of mining to the economy of South ,West
Africa has been attested to viiridly by a report of a 'Commissionof
Inquiry into Mining Legislation (May' 1953)~ in which the Com-
mission stated: "It is perfectly clear from where the State derives
the lion's share of its revenue and to what the present prosperity in
the Territory must be ascribed. And whereas it is acknowledged

that the expansion of the farming industry, owing to climatic
conditions, is, humanly speaking, nearing its saturation point,
mining has, with few exceptions, been confined to mere scratcliing
of the Earth's surface." a
38. In numerical terms, most of the mines in the'~emtori are
small, operated by various companies, syndicates or individuals.
The bulk of.the production, however, is accounted for by four large

companies: The'Consolidated Diamond Mines'ofSouth West Africa,
Ltd., which produces diamonds; the' Tsumeb Corporation, Ltd.,
which produces lead, copper, zinc, silver and germanium; the South
West Africa Co., Ltd., producers of lead, zinc, tin and vanadium;
and the South West Africa Salt Co., Ltd., a producer of ~alt.~
39. The laws in force in the territory of South West ~frica
relating to minerals and the operation of mines, mining works and

mining machinery, were amended and consolidated by Oidinance
{ No. 26 of 1954, enacted by the Legislative Assembly of the Terri-
By the terms of the Ordinance, the "right of mining for and
disposing of precious and base minerals in the Territory, including
the territorial waters, is vested in the Administration and no pie:
cious or base minerais shall be searched for or won Save in accor-
dance with the provisions of this Ordinance." The Administrator's
control of the rnining industry is exercised through a department
known as the Mines Division, "which shall be subject to the direc-
tion and authority of the Administrator through the Secrefary for

the Temtory."
40. Under the terms of the Ordinance, no person'kay prospect
"for minerals or peg a claim unless he has been duly licensed."Except
within a "Native" reserve, a licence may be issued for prospecting
or pegging clairns only to a "European" of the age of 18 years or
more, a Company registered under the provisions of the Companies
- 1. >'.
l U.N. Doc. No. A/AC.~~/L.IO, at 80-81, paras. 214-15 (1957).
a U.N. Doc. No. A/AC.~~/L.IO, at 97, para. 266 (1957):, . .
8 Id. at gg-100, para. 275.
4 (1954) Laws of South West Africa, pp. 7538. . .
Id. at 753, sec1.
Id. at 765, sec. 5. *. :
Id. at 779, sec20. 120 SOUTH WEST AFRICA

Ordinance, 1928, as amended,' or a foreign Company which has
complied with the requirements of the Companies Ordinance, 1928,

as amended. Within "Native" reserves, "natives lawfully resident
therein, shall possessthe same nghts to hold prospecting licencesand
be subject to the same obligations as Europeans."

41. Even within the foregoing limits, prospecting licences are
issued only upon application to the Inspector of Mines, appointed
by the Administrator. No prospecting licence rnay be issued unless
the applicant has made a cash deposit or given a bank guaranty

for an amount to be fixed by the Inspector, such amount to be in no
event less than £50, "as a guarantee for the restoration to a safe
condition of the surface of any property which rnay be rendered
unsafe by prospecting or development operations." No licence

rnay be issued for a period longer than twelve months. On every
licence issued there shall be payable a fee of five shillings for each
month or part there~f.~The Inspector, in his discretion, rnay at
any time require the amount of the deposit or bank guaranty to

be increased "if in his opinion the circumstances so demand." No
prospector--may remove from the site of his prospecting operations
any minerals recovered in the course of such operations without the
written permission of the In~pector.~Sirnilarly, no mine owner rnay

dispoke of any minerals recovered by him during his mining opera-
tions except with the written permission of the In~pector.~
42. The Administrator has power to supplement the Ordinance
with regulations not inconsistent with the Ordinance, in respect

of,or in connection with an extensive vanety of matters enumerated
in Section 105 of the Ordinance. Among other matters concerning !
which the Administrator rnay issue regulations are prospecting and
miriingin "Native" reserves. By Ordinance No. 4 of 1955,however,

the Administrator's authority to issue regulations concerning pro-
specting and mining in "Native" reserves rnay be exercised only
after'consultation with the Minister of Native Affairs of the Union
of South Africa.

43. The mining of diamonds is also governed by a special pro-
clamation, the Diamond Industry Protection Proclamation, 1939,
and amendments thereto.10 By this proclamation and its amend-
--
lId. at 781-82. sec. 22.
Id. at 782, sec. 22. provis0 (iii).,
a Id. at 781. sec.' 21. para. (5). . '. ' .,
' Id. at 781, sec. 21, paras. (3)
aId. at 781. sec. 21, para.. (6). . . .. . ,
a Id. at 793, sec. 37, para. (1). 6-
' Id. at 797, sec. 41. para. (2). ,,
Id. at 849-51, sec. 105. para. (c). . '
* (1955) Laws of South WestAfrica. pp: 528. 530 (sec. 1). 538 (First ~cheduie.
Item (12)).
'O(1939) Laws of South West Africa, Proclamation No. 17. pp. 168f.;. Id..
Proc. No. 25, p. 234; (1941) Laws of South West Africa, Proc. No. 17. p. 276;
(1949) Laws of South West Africa, Proc. No. 40. p. 762; (1955) Laws of South
West Africa, Ord. No. 30. pp. 63zff. MEMORIAL 01: ETHIOPIA 121

ments, a Diamond Board in South West Africa has been established,
with extensive powers of supervision over the diamond mining
industry .
44. Certain minerals of importance for+the production or use
of atomic energy are also governed by the Atomic Energy Act,

1948, ofthe Union of South Africa, as amended, which is alsoapplied
to the Territory of South West Africa.'
45. From the foregoing bnef description of applicable law and
regulations, it is clear that the pattern of systematic discrimin-
ation against "Natives" observable in agriculture and in the tenure
of land generally is also carried forward in the mining industry. By
law, as has been explained, no one other than a "European" may
prospect for minerals anywhere outside a "Native" re~erve.~While
.
under the applicable law there is a technical possibility that pro-
specting by "Natives" may take place within the "Native" reserves,
the technical possibility can hardly be realized. The numerous
conditions prescribed, including particularly the financial conditions
and requirements, taken together with the unfettered discretion
'of the Administrator and the several special Boards, permit and
indeed require an inference that for al1practical purposes "Natives"
are barred from any such a~tivity.~

46. The foregoing restrictions upon prospecting and mine owner-
ship are supplemented by comparable restrictions applicable to
employrnent within mining enterprises. Mining regulations issued in
1956 under the authority of the Administrator provide that, if the
mine or works is owned by a "European" (as is always the case),
the manager must be a "European" ;if the manager i+a "European"
(as is always the case), every assistant manager and every sectional
or underground manager must be a "European". Similarly, the
regulations provide that the mine overseer must be a "European" ;
the shift-boss must be a "European" ;the ganger must be a "Euro-
pean"; the engineer must be a "European"; the surveyor must be

a "European"; the person in charge of boilers, engines, and other
machinery must be a "E~ropean".~ It is plain that the role of the
"Native" is confined to that of unskilled laborer.
47. The relegation of "Natives" exclusively to the status of
unskilled labor is underscored by a recent law of the Union of
South Africa, applicable to the Territory of South West Africa,
concerning compensation to be paid in the event of the contraction
by mine employees of certain occupational diseases, notably pneu-

' (1948) Union of South Africa, Statutes, Act No. 35. as amended by Act
No. A/AC.73/L.xoP at 103, para. 287 (1957).NII of 1956, cited in U.N. Doc.
* See an&, para. 40.
I Seeante. paras. 39-44.
'",'Gov. Notice No. 33 of 1956, in Official Gazette of South West AfXo.a,
1965, cited in U.N. Doc. NO. AIAc.731L.10 at 135. para. 387 (1957).
9122 SOUTH WEST AFRICA

moconiosis. In the statute, a "miner" is defined as a male person
of "European" descent. By contrast, "Natives" and "Coloured"
persons working in mines are classified as labour ers".^

Railways and Harbors

48. Railways and harbors in South West Africa are operated
under the jurisdiction of the Railways and Harbors Administra-
tion, an independent government agency with its own budget that
operates in both the Union and in the Temtory. Al1graded posts
in the Railways and Harbors Administration are reserved to
"Europeans", subject to temporary exceptions which are made
when a shortage of "European" employees is so acute as to make
it necessary to relax the bar. In a statement made in the Union
Parliament in March, 1956, the Union Minister of Transport ex-

pressly stated that "Non-Europeans" should not be allowed to
occupy graded posts. The Minister went on to Say:
"We only employ Natives to serve their own people whereit is
practicable, and where it is acceptable to the rest of the staff. But
itwill certainly not be acceptable to the staff or the public that
Natives should be employed, even on Native trains, as firemen,
conductors,orguards.That is not my policy,and it willnot ha~pen."~

49. It is well to note here an extract from the Report of the
Permanent Mandates Commission on South West Africa (annex 16
of the Minutes of the Permanent Mandates Commission, Fourteenth
Session, p. 275), which was approvedby the League Council at its
54th Session (Official Journal, April, 1929, pp. 505-508) :
"The Commissionnotes the statement of the Administrator that
the Colour-BarAct of the Unionof South Africais applied in South-
West Africain so far as employment under the Administration and
in the railways in concerned. The Commissionconsiders that this
Act, the effectofwhichis to lirnit the occupationsopen to native and
colouredworkersand thus place them at a disadvantage with white
workers in the area under Mandate, is based upon considerations
which are not compatible with the principles laid do? in the
Mandate."

Labor : Recruitment

, 50. As has already been explained, the chief employers of labor
in the Temtory of South West Africa are the rnining, companies,
the fishing concerns, the "European" commercial' ,farmers, the
Temtorial Administration (road gangs, etc.) and the Raiiways
and Harbors Administration. The buik of the labor force is made up

~neumoconiosis Act. No. 57 of 1,g;6. in Official Gazette of South West Africa,
No. 2007. See (1956) Laws of South West Africa, p. xi. See also U.N. Doc. No.
A/AC.73/L.ro. at 135. p.ara. 387 (1957).
' Union of South Afnca. House of Assernbly Debates (~aAs&d. Vol. 7, cols.
2135-6. SISZ.,cited in 'U.N. Doc. No. A/AC.73/L.xo, at 69-70, para. 176 (1957)- I I .
BlEMORIAL OF ETHIOPIA 123
of "Native" labor. While such labor is derived to some extent from

local sources, it comes in the main from the Ovamboland Native
Reserve and the Okavango Reserve. lAs has also been explained,
the "Native" labor force is overwhelmingly an unskilled labor force,
and it is deliberately kept in that status by the law, policy and
practice of the Territorial Administration and the Union Govern-
ment.

51. Since the principal reservoirs of "Native" labor are the
Northern "Native" reserves, and more particularly the Ovamboland
and Okavango Reserves, the process by which labor is recruited
from these reserves is of particular interest. Al1 such recruitment is
by law vested in a single organization, named the New South West

Afncan Native Labour Association (Proprietary), Ltd. This organi-
zation is referred to briefly as Nuwe SWANLA.2The functions of
this organization are to recruit labor in the "Native" reserves for
work in industry and on commercial farms. Nuwe SWANLA
operates through recruiting agents stationed in the principal
recruiting areas, the Ovamboland and the Okavango "Native"

reserves. The recruiting agents keep in regular contact with the
chiefs, headmen and sub-headmen within the "Native" reserves.
52. Parades of potential laborers are held at the recruiting
centres, at which the initial selection of recruits is made. Following
such initial selection, the recruits are examined by medical oflicers,

and classified according to physical fitness for various occupations.
The recruiting organization then issues to the recruits identification
passes which they must have with them at al1times while in the
Police Zone.=
53. From the recruiting centers, the recruits are sent by motor

transport to Grootfontein, the main transit depot. From Groot-
fontein, they are sent by rail to the town nearest the place where
they wili be empl~yed.~
54. Laborers are provided to the respective employers in accord-
ance with the terms of contracts entered into between the employers

and Nuwe SWANLA. Pnor to 1948, it was the practice for the
employer to pay the incoming and outgoing rail fare, but the re-
cruited laborer paid the cost of the motor bus transport to and from
Grootfontein. The cost was paid through deduction from the first
and last month's wages of the recruit. Since 1948, such bus fares
have been paid by the empl~yer.~

l Cf. anle. paras. 8, 16, 18, 19. For a discussion of the organization of the
"Native" reserves, see9osl.paras. 114-127.
' Proc. No. Ir of 1922 (Native Administration Proclamation 1922). Sec. 19.
in (1915-22) Laws of South West Africa (A. J. Waters, Windhoek, South West
Africa.1923), at p. 753, cited also in U.N. Doc. NO..AIAC.~~/L.IO,at 126, para.
362 (1957). Cf. (1952) Laws of South West Africa, Ord. No. 48. p. 794.
a U.N. Doc. No. AIAc.731L.'0, at 129, para. 3.69 (1957)
Id. at 129. para. 370.
Id. at 130, ,para. 372.124 SOUTH \VEST AFRIC.4
55. The laborers thus recruited may remain within the Police
Zone only for the period of employment for which the contract
provides, in no case exceedingtwo and ahalf years. Atthe termina-
tion of the contract, the laborers must be returned to the place
of recruitment .l

56. The Board of Management of Nuwe SWANLA includes
representatives of the mining concerns and of the Society of South
West African Farmer-Employers of Contracted Natives. The
latter Society consists of al1 "bona fide farmers" in the Territory
employing contracted "Natives" recruited from the northern
"Native" reserve~.~
57. The Administration of the Territory also participates in the
Board ofManagementofNuweSWANLA.In sodoing, the Adminis-

tration represents not only itself, but also certain departments of
the Union of South Africa and the Railways and Harbors Adminis-
tration of the Territory and the Union, and al1other employers of
contracted laborin the Territory not directly represented. In recog-
nition of its representation of their interests,such other employers
are required to pay two pounds per annum to the Administration.
The money so received is held by the Administration until direct
representation of these other employers may be deemed by the
Administration to be warranted.3

Labor: Conditions Within the Police Zone

58. The entire "Native" labor force within the Police Zone is
subject to control in accordance with a number of laws of the
Territory. Some relate to "NativeJJ labor as such. Others relate
to "Natives" generally, but powerfully affect the conditions of
"Native" labor.
59. Among the principal statutes and other regulatory measures
which relate to "Natives" generally, and significantly affect labor
conditions are the Native Administration Proclamation 1922,~
the Extra-Territorial and Northern Natives Control Proclamation

of 1935,~the Native (Urban Areas) Proclamation, 1951,''and the
Vagrancy Proclamation, 1920.'
60. The basic legislative measure governing the relationships
among employers and farm and domestic labor is the Master and
Servants Proclamation 1920, as amended.8 Its effects must be

l (1952) Laws of South West Africa, Ord. No. 48. pp. 794ff.
a U.N. Doc. NO. A/AC.~~/L.I~, at 107-og, para. 314 (1959).
See footnot2, p. 123, supra.
(1935) Laws of South West Africa (Proc. No. 29 of 1935).
(1951) Laws of South West Africa, pp. goff. (Proc. No. 56 of 1951).
' (1915-22) Laws of South West ~frica, pp. 28off. (Proc. No. 25 of 1920).
(1915-22) Laws of South West Africa J..Waters, Windhoek. South West
AlAc.731L.10, at 131. para. 376 (1957).f 1920), amended; see U.N. DOC.NO. MEJIORIAL OF ETHIOPIA I2.5

appraised in conjunction with those of Proclamation No. 3 of 1917,
concerning the Control and Treatment of Natives in Mines, and
amendments thereto.'

61. Under the foregoing legislation, a "Native" is made guilty
of a cnminal offenceunder the followingcircumstances:
(i) ifhe fails or refuses to commence service under a .contract
of service at a stipulated time;

(ii) if "without leave or other lawful cause" he absents himself
from his mater's premises;
(iii) if he becomesintoxicated during.working hours;

(iv) if he neglects to perform any work which it is his duty to
perform ;
(v) if he "shail carelessly or negligently do any work which from
its nature it was his duty under his contract to have performed
carefully and properly" ;

(vi) if he shail refuse to obey any order of his master;
(vii) if he shall "by wilful breach of duty or by neglect of duty"
do any act tending to the "irnmediate loss, damage or serious nsk
of any property placed by his master in his charge" ;

(viii) if, being employed as a herdsman, he shall "irrecoverably
lose stock by his own act or default"; or
(ix) if he "shall without lawful cause depart from his master's
service with intent not to return theret~".~

62. If any "Native" employee or apprentice "is charged with
having without lawful cause deserted from his master's service it
shall be lawful for any Magistrate to issue his warrant for the
apprehension of such servant or apprentice without any previous

warning or summons."
63. Any "Native" laborer who has been sentenced to impnson-
ment for any of the foregoing offencesmust, upon the completion
of hs term of imprisonment "return to his master immediately ....
unless the contract of service has been cancelied by the Magistrate
-.
(1915-22) Laws of South West Africa (A.J. Waters, Windhoek, South West
Africa. 1923) pp. 8gff. Subsequent proclamations relatinto the same subject
matter include Proclamation No. 6 of 1924; Native Labour Regulation Procla-
mation No. 6 of 1925; Native Administration Proclamation No. 15 of 1928;
Native Labour Regulation (Mines and Works) Amendment Proclamation3 ofNO.235
of 1930; Native Labour Regulation Amendment Proclamation. NO. 27 of 1931 ;
Native Labour Regulation (*Minesand Works) Amendment Proclamation NO. 4
of 1939; and Regulations contained in GovernmenNotices No. 26 of 1925, No. 64
of 1940, and No. 3 of 1951. See U.N. Doc. No. AjAc.731L.10, at 131-134,
paras. 376. 382 (1957).
Master and Servants Proclamation 1920 (loc. cil., in fn. 8.p. 124. secs..
46-52; Cf. Proc. No. 3 of 1917 on the Control and Treatmenof Natives in Mines
(loc. cil., in Inof this page. supra). sec. 3.
a Master and Servants Proclamation 1920 (106.cil., in2fof this page. supra),
sec. 74.126 SOUTH WEST AFRICA

...and in case he shall neglect to doso he may be convicted of being
absent without leave from his mater's premises and be sentenced
to impnsonment with or without hard labor, with or without
solitary confinement and with or without spare diet for any period
not exceeding one month and so on for successive periods of one
month until he shall conçent to resume his service under the
contract." l
64. According to the ~e~ort of the Union Government 6n the

Administration of South West Africa for the year 1946, 2,100
"servants" were convicted in that year under the Masters and
Servants Proclamation 1920. No more recent figures concerning
convictions are a~ailable.~
65. Reference hasalready beenmade to the fact that no "Native"
from outside the Police Zone may enter the Police Zone or hold
employment there without an identification pass issued by an
authorized officer.The "Native" must at al1times carry his identi-
fication pass with him and produce it on the demand of any author-
ized officer,any member of the South West Africa police and any
person who employs l-~im.~
66. In rural areas, al1male "Natives" over the age of 18 years
who reside on a farm belonging to a "European" must be in the
employ ofthe farmer. As has already been pointed out, if a "Native"
was resident on such land beforeit was allocated tothe "European"

farmer, the farmer may require the "Native" to become hisemployee
or to be removed from his property.'
67. If a "Native" is unemployed within a proclaimed urban
area in the Police Zone, he must report to a prescribed officerand
take up his residenceat a point indicated by the officeruntil he has
found employment. If he does not succeed in finding a job within
a fourteen day period, he must leave the area. If the "Native"
was born in the area in which he is found unemployed, or has
othenvise been qualified for residence there, the approval of the
Minister of Native Affairs is required before he may be rem~ved.~
68. Certain areas within the Police Zone are set aside as "Pro-
claimed Areas". In any such proclaimed area, if a "Native" is
habitually unemployed, or if any authorized officerhas reason to
suspect that he ishabitually unemployed or that he lacks a sufficient
means of livelihood, the "Native" may be arrested without a
warrant. Any "European" police officeror any "European" officer
appointed as a manager or inspector of "Native" affairs in urban

Master and Servants Proclamation rgzo, loc. cil., sec. 53 (as amended by
Proc. No. 58 of 1920. sec. 3).
' U.N. Doc. No. A/AC.~~/L.IO,at 134, para. 386 (1957).
mation, 1935, as amended. loc. cit.. i5.fp. "4.osupra,at p. 154, sec. 9.rocla-
' See paras. 1928 ante.
' U.N. Doc. No. A/AC.~~/L.IO, at 152, para. 437 (1947).areasrnay bring such a "Native"beforea magistrate or a "Native"
çornmiççioner, If the "Native" isfound to be habitually unemployed
or to lack a means of livelihood, the "Native" rnay either be re-
moved from the are$(to be sent either to hi5 own home or to a place
indicated by the commissioner or magistrate) or he rnaybe ordesed

into emp1oyment.l
69. Under the Vagrancy Proclamation xg20,hny "Native"
"found wandering âbroad and having no visible lawful means, or

insufficient lawful means of support" and who "shall not give a
good and çatisfactory account of himself" shail be deemed "an
idle and disorderly pe~on".~ Upon conviction as an idleand dis-
orderly person, he may be imprisoned with or without hard labor
and with or without solitary confinement for a period up to three
months.' The category of "an idle or disorderly person" is also
extended by the Proclamation to cover any "Native" "found
withoiit the permission of the.owner ...wandering over any farm,
in orloitering near any dwelling house, shop, store, stable, outhouse,
gardens, vineyard, kraal or other enclosed place", and also any
"Native" "loitering upon any road" crossing a fam, or "loitering

at or near any hut, house or other building upon any farm"."
"Native" who falis within the category of an "idle and disorderly
person" rnay be mested with or without warrant by any magistrate
or police officer or by anyowner or occupier of the land upon which
he may be f~und.~ Similarly, every owner of afarm, "for the purpose
of çearching for any idle anddisorderly person" rnay"enter with-
out a warrant and make çearch in any hut, house, orother building
upon such farm."'

70. By a regulation issued under Section 20 of the Native
Administration Proclamation 1922 "Any Supetintendent who,
after investigation, is satisfiethat any male resident of a Reserve
[excluding Ovamboland and Okavango] has no regular and suffi-
cient lawful means of support, or leads an idle existence, rnay order
such person to take up ernployment on essentid public workç or
services within or without the Reserve at a suficient wage to be

determined by such Superintendent." The regulation goes on to
provide that "Any male resident of a Reserve .,who fails to take
up such employment as ordered within a reasonable time after
such order by the Superintendent, or any order of the magistrate

1 Native (Urban .Areas)Proclamation, rggIcil.fn.6,p.rzq supra)sec. 26:
see als~U.N. Doc. No. AjAC.73/L.ro,at 153, para440 (1957)-
LOG,nt.,in.7, p. 124,supra.
Id.at 280,sec. I.
Id.at 280,sec.3 (1).
Id. at282,sec.Re(1).(113 (2).
Id. at282,sec.8 (2).
LOG cil., f2, p. 123,supra.128 SOUTH WEST AFRICA

...as the case may be, shall be guilty of an offence."'

71.Sinçe 1955, "Natives" entering twenty proclaimed urban
areas are not only required toregister but must alsopay a fee of a
shilling. In addition, the employerof any such "Native" must pay
two shillingsupon regiçtratian and each rnonth thereafterV2Any
suçh "Native", upon registration, is heldwithin a reception depot
until he obtins employrnent or until he is required by ordes to

leave the proclaimed area.8
72. In mines, every employer is required to "grant to every

European employed by hirnin or about a mine or works in respect
of each period of 310ordinary workin shifts ofemployment with
him ..leave of absence on fullpay of not less than 24 consecutive
worlung days." Çidarly, upon tersnination of his employment,
the "European" ernployee isentitled tofull pay "in respect of any
period of leave which has açcrued to hirn but wasnot granteci before
the date of termination of the employment." No comparable pro-
vision is made for "Native" employees.

73. Under the temç of the Factories, Machineryand Buildzng
Work Ordinance, 1952, every employer must grant to every ern-
ployee "in respect of each period of twelve rnonths' employment"
leave of absence on fullpay fornot leçsthan two consecutive weeks.

In computing the period of_empIoyrnent for the purpose of deter-
mining the amount of leave to which the ernployee is entitled,a
period of absence owing to illness,çertifiedto by a medical practi-
tioner, shaU be deemed to be ernpl~yment.~However, by a specific
regdation, the foregoing provisions for leave are made iaa#$la'cable
to ernployers "in respect of extra-territorial andnorthern 'Natives'
...who are employed in or in connection with their factories under
valid contracts of service."

74. Under the Pneumoconiosis Act, No. 57 of 1956 ,dcipted by
the Union and made applicable to South West Africa by Brocla-
mation No, 156of 1956, persom under 16 years of ageand fernales
are prohibited from working in dvsty atmospheses in controlled
mines except that govenimental authorities rnay grant permission

l (rg52)Laws of South \Vest Africa, pp. 834-8(Govt. Not. 121,adding
Reg. 27 bis).
a (1955) Laws of South West Africa, 751K (Govt. Not. 65). sec(1).
Id, at754.Reg. 2 (1)(b).
Reg. No.282.s of SouthWest Africa, pp.499, 721 (Govt.Xot. 33 of 1956)
(1952) Law3 of soutWest Africa, pp404,430~ l~rci.NO. 34, sec.21).
(tg531Laws of SouthWest Africa, p. $99 (Govt. Not. 257).
' PneumoconiosisAct,1956,although referred to in the inde(1956) Laws
of South West Africas not printed in that officia1 collectiotextdoes
appear in theOffici Gazetteof South West ~fXca, No. zorg.of rg56.Cited
in U.N. Doc. No. AIAC.73IL.ro. at 145, para. 4r7 an146,para.419(rg57).for the cmployment of a rton-Ezarapecanfernale in such a dusty
atmosphere (Itaiicsadded.) The Act provides compensation rates
for ernployees who suffer injury or illness in the course af their
employrnent. For the contraction ofpneumoconiosis, compensation
rates differ shatply as between "European miners" and "Native
labourers". For a "European miner", the rates range from alump-
surn payment of i480 (for the first stage of pneumoconiosis) to a
lump-sum of L480plus a monthly pension of £25 and pensions for

his dependents, including ;tT160s.per month for his wife and 114 ros.
per month for each dependent child (for the fourth stage, or tuber-
cuiosis with pnêumoconioçis). The "European miner" rnay also be
awarded'E7 10s. per rnonth ifhe needs aconstant attendant. If he
should die from the disease, his dependents are entitfedtopensions,
in the amount of lrz 15s-per month to the widow, and £6 7s. 6d.
per month for each dependent child. "Coloured". laborers are
entitled to the following benefits :For pneumoconiosis in the first
stage, a lurnp-sum payrnent of iv5; for pneumoconiosis in the
fourth stage, a monthly pension of £10 10s. and pensions for his
dependents, inc1,uding£3 monthly for the wife and £1 ~oç.monthly
for each dependent child. If the "Coloured" laborer should die
from the disease, his widow is entitled to a pension ranging up to
£6, and each dependent child is entitled to a pension ranging up

to £3. In sharp contrast, a "Native" workman may receive ascom-
pensation for pneumoconiosiç, whatever the stage of thedisease, and
even ifthe rliseaçeiscontracted in combination with tuberculosis,
a maximum lump-sum payment of £240. No monthly pension is
avdable to him. No monthly pension isavdable to his dependents.
If he should die from the disease, his dependents are only entitled
to the surn whichhe would have received if he had not died. If he
has previously been awarded his maximumof £240, and has then
died, no benefits are provided for his widow or dependents. Any
award to which a "Native" laborer or his dependents rnay be;
entitled ispaid over not to him or to hicdependents, but to the -
appropriate "Native" authority, which may choose to pay the
benefit to the laborer or his dependents either in full,or in instal-
ments.l

75. Chapter II of Wage and Industrial Conciliation Ordinance,
1952, deds with the zegistration of trade. unions and the settle-
ment of industrial dispute^.^ The Ordinance came into effect in the
Tenitory of South West Africa under Proclamation No. 28of 1953.'
The Ordinance defines a "tradeunion" as "any number of employees
in any particular trade, associatetogetherprimarilyforthe purpose
of (a)regulating relations between thernselves or some of them and
their respective ernployers; or (b) protectingor furthering the In-

' U.N.Doc. No. A/AC.7j]L.ro, at147,para.423 (r957).
*(Id. at 488ff. SouthWest Africa, pp464tT(Ord. No. 35ut 1~52).
' (1953)Laws of SouthWest Africap. 125 (PxocN.o PH of 1~153).I3O SOUTH WEST Al'HECA

terests ofthe ernployees ,." The definition of trade union obviouçly
gives key significance to the term "employee". By the terrns of the
Ordinance, the term "employee" means any person employed or
working for any employer "~xcept in Chapter IÈ".TOF the purposes
of Chapter II, however, the term "employee" means "any person
ernployed by, or working for any employer ..but does not include a
Natiue (Italics added.) The term "Native" is defined to mean
"a mernber of any aboriginal race or tribe of Africa."

76. Chapter II provides for the application of its proviç~ons
concerning the registration of trade unions, collective bargaining
and conciliation, to disputes which exist "in any trade in any area
between" or among trade unions, ernployees and ernployer~.~
In consequence, the provisions cancerning labor disputes and
çoncilation do not apply to disputes among ar between "Native"
laborers and the others.
To sztm up therecord of theMandatory ilzregardto the well-beimg,
socia progress anddevdoflmentof the #eo$ieofSouth West.Africa in
industry, iwdacstzei nazploymerzla.izdlabor relations:

77. In the industrial phases of the economic Iife of the Territory,
as in the agricultural aspects of the economic life of the Territory,
the Mandatory has failed to promote tothe utmost the weli-being,
the social progresç and the development of the larger part of the
population. It has not even made any substantial effort to do so.
To the contrary, by law and by practice, the Mandatory has en-
gaged in a consistent course of positive action which inhibits the
weli-being and preventç the social progras and the development
of the larger part of the population. As the data exhibited in the
forcgoing paragsaphs make clear, the record of the Mandatory's
behavior toward the "Native" population of the Territory haç been

a bleak and consistent record of negation, frustration, constraint
and unfair discrimination. More particularly, as demonstrated in
detail in the preceding paragraphç :
(1)The Mandatory has denied and continues to deny to the
"Natives" of the Territory opportunity to take part in mining
and other industries as a prospector, entrepreneur, operator, or
owner.

(2)The Mandatory has denied and continues to deny to the
"Native" population opportunity to take part inexecutive, rnanage-
rial, professionalor technical posts in mining and other industries.
(3) The Mandatory haç unfairly prohibited and continues to
prohibit "Natives" from taking part in the processes of collective
bargaining and conciliation and arbitration of disputes.

SUPV~Vap,570, secu79riaConciliatioOrdinance1952 (loc.cil.infn.z,p. rZ9
Id.at 528, sec48.
Vd. at 506, sec33. MEMORI.41- 017 ETHIOPIA I3I
(4) The Mandatory has confined the participation of the "Native"
population in the industrial economy, for al1practical purposes, to

the role of unskilled laborer.
(5)The Mandatory has shaped the circumstances and conditions
of labor for the "Native" population into a pattern of constraint
and compulsion that consistently subordinates the interests of the
"Native" laborers to the interests of their "European" employers.

(6)The Mandatory has so drasticaliy curtailed and circumscribed
the possibilities of choice for "Native" laborers as to leave them,
for al1practical purposes, very little freedom of choice with respect
to place of employment, type of employment, identity or character
of employer, or conditions of employment.
1 The Mandatory has denied to "Native" laborers equal legis-
1; t:protection in the form of provisions for holidays, sick pay,
a d compensation in the event of illness or injury caused by em-

.oyment which are made available to "White" employees.

4. Well-Being, Social Progress and Development:
Government and Citizenship
(a) Statement of Law

"In accordance with these legal norms, the Mandatory's duties
Yosafeguard and promote the 'material and moral well-being', the
'social progress' and the 'development' of the peoples of the Terri-
tory must reasonably be construed to include:

(3) Political advancement of such persons through rights of
suffrage, progressively increasing participation in the processes

of govemment, development of self-government and free political
institutions ;'
................................
(b) Statemelztof Facts

BackgroundInformation

78. On November 15, 1915 the Minister of Defence of the Union
of South Africa, by a proclamation, established the Office of Ad-
ministrator of the Protectorate of the territory theretofore known
as German South West Africa, which had been seized from the
Germans by the forces of the Union, in the course of World War I.2
In 1919 ,he Union enacted the Treaty of Peace and South West
Africa Mandate Act, which vested in the Governor General of the

Union power to "make such appointments, establish such offices,
issue such proclamations and regulations and do such things as
l Pp. 107-108,supra.
8 Laws of South M'est Africa1915-22(A. J.Waters, Windhoek. South West
Africa, 1923) p. 30.132 SOUTH \\IEST .4FRICA

appear to him to be necessary for giving effect, so far as concerns the
Union, to any of the provisions of the Mandate over South West
Africa. The Governor General was also empowered to make new
laws applicable to the Territory of South West Afnca, to repeal or
modify any laws theretofore enforced, and to "delegate his authority
in this behalf to such officerin the said Temtory as he may desig-
nate".' By Proclamation No. I of 1921, the Governor General
delegated to the Administrator of the Territory the authonty
previously vested in the Governor General over South West Africa,
"subject always to such instructions as may from time to time be

issued for his guidance by proper a~thority".~
79. The Executive Committee "shall consist of five members,
namely the Administrator of the Territory ..and four other perçons
chosen by the Assembly ...from amongst its own member~".~The
Administrator "shall be chairman of the Executive C~rnmittee".~

80. The Advisory Council "shall consist of eight members, viz.:
the Administrator (who shall be chairman), the other members of
the Executive Committee and three members appointed by the Ad-
ministrator, subject to the approval of the Governor General".4
SI. The powers of al1three of the governing organs were limited.
It was provided that "The Administrator in Executive Committee
shall carry on the administration of those matters in respect of
which it is for the time being competent for the Assembly to make

Ordinances ...Subject to the provisions of this Act ..,.the powers,
authonties and functions (other than legislative powers) which ...
were vested in or exercised by the Administrator shall ...insofar as
those powers, authontiesand functionsrelate to matters in which it
is competent for the Assembly to make Ordinances, be vested in
the Administrator in Executive Committee." The duties and
functions of the Advisory Council "shall be to advise the Adminis-
trator in regard to..those matters in respect of which the Assembly
is not competent to make Ordinances", and also in regard to "his
assent to an Ordinance passed by the Assembly." The Assembly
"shall have power to make laws, to be entitled Ordinances for the
Temtory", subject, however, to a number of matters explicitly
reserved from legislation by the Assembly, and subject also to
powers of disallowance reserved to the Governor General.'

82. In 1926, the Governor General, acting pursuant to the
authority vested in him by the South West Africa Constitution Act,

~d. at ~ctNO.49 of rgrc), at Io.
' Id. at 48.
The Union Statutes 1910-1947 (Butterwor&hCo., Durban, South Africa).
Vol. 3.Sec. 2.
Id. at sec7.
Id. at sec. 8.
' Id. at secs. 25.26,27, 32, 34. MEMOHIALOF ETHIOPIA I33
1925,issued a proclamation constituting the Executive Committee,
the Advisory Counciland the Legislative Assembly forthe Territory

of South West Africa.'
83. While the South West Africa Constitution Act, 1925, was
modified inminor ways fromtime to time, it wasnot until1949 that
a major change waseffected.The South West Africa Affairs Amend-
ment Act, 1g4g2,abrogated the generallegislative powers whichhad
theretofore been retained by the Governor General of the Union
with respect to South West Africa, so that "thereafter only Parlia-

ment [of the Union] shall have the power to legislate for the Terri-
tory in regard to those matters on which the Assembly is not com-
petent to legi~late."~The Act also abolishedthe Advisory Council.
The Assembly (Legislative Assernbly of the Territory) was made
fully elective, al1eighteen members to be chosen by duly qualified
(European) voters of the Temt~ry.~ The legislative authonty
previously vested in the Administrator, like that previously exer-
cised by the Governor General, was abrogated. The Adrninistrator
was specifically described as the "Chief Executive Officer of the
Temtory," with "al1 executive acts relating to the affairs of the
Territory" to be "carried out therein in his name." Provision was
made fordirect representation of the Terntory ofSouth West Africa

in the Parliament of the Union.6Thenceforth, the Territory. was
to be represented in the "House of Assembly" of the Union Parlia-
ment "by six members to be elected in accordance with the pro-
visions of this Act." ' In addition, the Temtory was to be repre-
sented in the Senate of the Union Parliament by four Senators,
"two of whorn shall be nominated by the Governor General, and
the other two elected as hereinafter provided."

84. Legislative powers withdrawn from the Governor General
and the Administrator in 1949 were restored by the South West
Africa Affairs Amendment Act, 1951. In 1955, another and highly
significant change took place in the constitutional distribution of
powers affecting the Temtory of South West Africa. On Apnl 1,
1955, the South West Afnca Native Affairs Administration Act,
1954 'O became effective. Under its terms, the authonty theretofore
exercised by the Adrninistrator with respect to t'Native" affairs
was curtailed, and control over the administration of "Native"
affairs within the Territory of South West Africa passed from the

1 Laws of South West Africa, 1926, p. 40 (Union Proclamation No. 57 of 1926).
a Laws of South West Africa, 1949, pp. 172ff. (Union NO. 23 of 1949).
a Id. at sec22.
Id. at sec. 8.
Id. at sec. 3.
Id. at Chap. II, pp. 182ff.
Id. at sec. 27.
0 Union of South Africa, Statutes, 1951, p. 404 (ActNo. 55 of 19.51).
'0 Union of South Africa, Statutes, 1954, pp. 559ff. (Act No. 56 of 1954). I34 SOUTH WEST AFRICA

Administrator to the Union Minister of Native Affairs (and the
Governor General) .l
85. This shift iii responsibilities and duties occurred in the

following manner: powers originally held by the Administrator
were passed on to the Govemor General of the Union, who, in turn,
retained sonle of tliose powers and delegated others both to the
then Union Minister of Native Affairs (now referred to as the
Alinister of Bantu Administration and Development) and to the
Administrator. The Minister of Bantu Administration and Develop-
ment may, likewise, .delepte some of his powers to the Adminis-
trator.
Suffrage

86. We have previously explained that, under the South West
Africa Constitution Act, 1925, as amended, suffrage within the
Territory was restricted to "European" males. By the South West
Africa Affairs Amendment Act, 1949,~ the right to vote within the
Territory was still further confined to white perçons who are also
riationals of the Union. Section 34 of that Act provided: "The
Electoral Consolidation Act, 1946 (Act No. 46 of 1946), as amended

...together with any regulations promulgated thereunder shall
, mzctalismzdandis be enforced in the Territory". In addition, Section
8 of that Act expressly modified the pre-existing provisions relating
to the election of members of the Legislative Assembly of the Terri-
tory by providing that the members of the Assembly shall be
"chosen by duly registered voters of the territory voting at elections
held in accordancewith the provisions ofthe Electoral Consolidation
Act, 1946 (Act No. 46 of 1946) as applied to [to the Territory] by
Section 34 of the South West Africa Affairs Amendment Act, 1949".
The Electoral Consolidation Act, 1946,~ provides that "Every
white person who is a Union national, is of or over the age of 2:
years and is not subject to [certain specified disqualifications] shall
...be entitled to be registered as a voter." The statutes have been
supplemented by regulations duly issued thereunder and applied
within the Territory for the registration of voters and the compil-

ation of lists of voters. In one such regulation it is provided that
"the name of any person who is not a white person, and whose
residence is in..:the temtory of South West Africa shall not in
any circumstances be included in the voters' list for any division
in ...the said territory." (By Act No. 30 of 1958 suffrage, while
still limited to white persons, was granted to thos18 years and over.)

Id. at sec2,3; cited also in U.N. Doc. No. A/AC.73/L.ro,20,para. 34.
'LUnion of South Africa, Statutes, 1946,388 (Act No. 46 of 1946); ais0
printed in Laws of South West Africa, 1949, pp. 2ff.
'Id. at sec. 3.
Union of South Africa, Government Gazette, Union Government Notice 1417
of 1957 (Union Government Gazette 5943). also cited in U.N. Doc. No. A/AC.
731L.14. at 24. para. 52 (1959). I ._.

MEMORIAT, OF ETHIOPIA

Participation in the Territorial Government
87. As WC have already pointed out, by the termç of the South

West Africa Constitution Act, 1925, as arnended, only perçons
qualified as voters may qualify as members of the Legislative
Açsembly of the Territory.1 Only persons qualified ta serve as
members of the Legislative Assembly are qualified to serve as
members of the Executive C~rnmittee.~ Thuç, by law in the case of
the Legislative Assernbty and the Executive Committee, and by
uniform practice in the case of the appointment of the Adrninis-
trator, no "Native" may serve as a mcmber of the Legislative

Assembly, the Executive Committee, or as the Administrator of
the Territory. By virtue ofthe same provisions of law, no "Native"
may serve in behalf of the Territory as a territorial mernber of the
Union Parliament.

General Administration (Civil Service)

88. The general administration of the Territory is governed by
the Public Service and Pension Act, rgqa which waç applied tu the
Territory of South West Afnca by Proclamation No. 22 of 19~3.~
The public service of the Territory and that of the Union constitute
a single integrated sesvice. In the case of public officials assigned
to duty within the Territory, their salaries and allowances are paid
by the Territory.

85. The "public service" includes "al1 personç in the employ-
ment of the Government of the Union ...or of the mandated terri-
tory." The public service is osganized in five main divisions: the
administrative division ;the clerical division; the professional and
, technical division, usuaIly referred to as the professional division;

the general division ;and the services.
go. The Administrative Division comprises the secretar anyd
under-secretanes of the several departments ; the various clerks,
secretaries, and auditors: magistrates; and "al1 other persons whose
officesor posts the Governor General directs to be included in that
division."

91.The ClericaI Division includes al1 persons whose offices or
posts are directed by the Governor General to be included in that
division.
92. The Professional Division conçists of a higher and a lower
branch and includes al1persons whose offices or posts are directed
by the Governor General to be included in that division.

1 The UnionStatutes, Iglo-Ig47(Butterworth & Co , Durban, South Africa).
Vol. 3, pp. 64rff(Act No. 42of l92.5sec. 17)
Id. at sec.2.
a Union of South Africa, Statute1gz3, pp. 256ff(.4ctNo. 27 of 1923).
U.W. Doc. No. AIAC.731L 3,at 287, fn.I (1954).
Union of South AfricaStatutes.1923,pp. 256ffAct No. 27 of1g23).sec.1.
Id.at sec.1, subsec.(2). SOLITHIVEST AFRIC.4
136
93. Thc Services include the Permanent Defence Force, the
Police Force and subordinate officersofthe Prisons Department.'

94. The Public Service, in the strict sense, does not include the
Adininistrator of the Territory, personçemployed in the Railway
Administration, teachers çerving under the Administration of the
Tersitory, part-time or temporary employees, or any other person
whose post may be excluded by the direction of the Governor
Gene~al.~

95. Under Section 9, subsection (4)) of the Public Service and
Pension Act, 1923, no person is qualified for appointment "in a
permanent capacity or on probation or in a ternporary capacity to
any officeor poçtin the public service (excluding the Services) unless
such person isa British subject." After the coming into effect of
the South AfricanCitizenship Act, 1949 he foregoing limitation was
modified to refer to a citizen of South Africa, a citizen of a Corn-

monwealth country, or a citizen of the Republicof 1reland.The
three classes of citizençbecorne eligible for admission to the public
service alter three years' residençe in the Unionor in the Territ~ry.~
96. In practice, participation by "Natives" in the general ad-
ministration does not appear to be excluded. With few exceptions,
however, their participation appears to be confined to the lowest
and least skilled categories. This practice of "job-reservation"

for Natives is exernplified by allusion to the Territorial Budget,
which classifiesjobs as between "Europeanç" and"Natives." The
following, taken from the Budgets for 1946-195 i4a,fairsample of
such clasçific5tion in the several departments, branches and divi-
sions of the public selvice:
97. En the Department of Agriculture, provision was made for
the participation of "Natives" solely as "me~sengers/cleaners".~

98. In Cuçtoms and Excise, provision was made for "Natives"
only as "Native Messengers"."
99. In Works, Buildings Branch, provision was made forparti-
cipation of "Natives" solely as "Native, Grade 1", "Native, Grade
II", and "Cleanersand Mes~engerç".~
IOO. In the organization of the High Court and Circuit Courts

for the Temitory, provision was made for "Natives" only as
rne~sengers.~
1 tlnion of Sauth Afriça, \'carbook, 1949, pp. 7cited in U.N. DOCNo.
A/AC.73&.j3 at 288 (1954)
a Union of South Xfrica, Yearbook1949, 1). Yas cited in U.N. Doc. NO.
AIAC.73IL.3,at 289 (rg54h
a Sm U.G. 26/1950p. 2,and the 38th hnnual Report of the Public Service
Commission, 1949,as citedin U.N. Doc. No. A(AC.731L.3, at292-93(1954).
' Union of South Xfrica, Statutes,1923,pp, 256n.(Act No. 27 of rg23),
SEC. 9,subsec.(4) ; salso U.N.Doc. No. AJAC 731L.3 ,t 293para.I5 (r954).
6 Id.at 245.No. A/AC.73/L.3, a243.
7 Id. at250.
Id.at 253. 101. In the Office of the Attorney General, provision was made
for "Natives" only as messengers.'
102. In the Magistraie's Courts for the Tenitory p,ovision was
made for "Natives" only in the categories of "Native Assi'stant",
"Native Interpreter-Messenger". "Temporary Native Inter-

preter", and "Native Me~senger".~
103. In Lands, Deeds and Surveys, there was no provision made
for "Native" ernpl~yment.~

104.In Posts, Telegraphs and Telephones, other than Mainte-
nance of Telegraphs and Telephones, provision \vas made for
"Natives" only as "Native hlessengers", "Native Telegraph Meçsen-
gers", "Native Office Boys", "Native Drivers", "Native Watchhoys"
and "Native Male R~nners".~

105. In the Maintenance ofTelegraphs and Telephones Branch of
Poçts,Lelegr;raphs and Telephones, provision was made for "Natives"
only as "Native Line Boys". In addition, there was provision made
for one "Coloured" rigger.6

Local Government

106. A structure of local goverment has been esiablished within
the Territory. The structure comprises two principal types oflocal
governmental units : "rnunicipalitieç"~ and "Village Management
Board Areas". The municipalities are governed by "Municipal
Councils". a The Village Management Board Areas are governed
by "Village Management Boards".

107. At the closeof 1959,17 rnunicipalitieshad been estabiished,
and 11 Village Management Board Areas.lo
108. The composition and powers of the Municipal Councils are

comprehensively defined in the MunicipalOrdinance, 1949.11 The
members of the Municipal Councilç are chosen by election. "No
person who is not a 'European' ..shall be capable of being elected
or of continuing as a councillor ofany municipality ..."'Vn order to
be qualified as a voter, a person must be a 'European',', the owner
or mcupier offixed property within the municipal area in whch

' Id. at 154,
Id ai z55-5b.
4 Id. at2SO-61.
Id. at263.
Laws of South West Africa, 1949,pp. 790fi.(Municipal Ordinance1949.
NO. 3 of 1949).
' Laws of South IVest Africarg37,pp j88ff.(VillagManagement Boards
Ordinance, 1937,No. 16 of1937).
8 LOG.ci!.supra, in. fiof this pagsec. 5.
80U.N. Doc. No. A/RC.73/L.r4, a41,para. 106(~59).
$1Loc.dl.,srtpra. fn. 6 ofthis page.
laId.at sec.rq.13~ SOUTH WEST AFRICA
he ckims the nght to vote and çhdl have owned or occupied fixed
property in the aforesaid municipal area at least six months ..."
In addition, "every regiçtered Company, association, çociety or
club which is the owner of fixed property, within a municipal area,
to the value of at least &r5oo, and wa5 such an owner for at least
6 monthç ...is eligibleto v0te.lThe members of the Council elect
a mayor and deputy mayor from among their number.

mg.The basic legidation defining the composition andpowers
of Village Management Boards is the ViHage Management Boards
Ordinance, 1937.~ Each Board shd "consist of the Magistrate of
the District ex oficio(who shall be Chairman and Treasurer) and,
in the discretion of the Adminiçtrator, not less than two and not
more than four other rnembers, appointed by the Adrninistrator,
who ...shatlhold officedunng the pleasure ofthe Adrnini~trator."~
The Magistrate, as a Territorid efficial,is always a "European".
The Administrator, in his selection of memberç of the Boards,
fallows the consistent pattern and the dominant philosophy of
"aj5artheid".Only "Europeans" are named to mernbership on the

Boards.
XIO. In addition to their general powers and responsibilities,the
Municipal Councilç and the Village Management Boards exercise
control over the administration of "Native" affairs within the
municlpalities and Village Management Board Areas, subjeçt to
the general authority of the Union Mifister of Native Affairs
(priortO April r, 1955 ,he Administrator 7.The powers and duties
of the Municipal Councils and Village Management Boards in

regard to "Native" affaira sre defined principally in the Natives
(Urban Areas) Proclamation, 1951.~
ILI. Under the Natives (Urban Areas) Proclamation, 1951, the
urban local authorities (Municipal Councils or Village Management
Boards, as the case may be) are authorized to dcfine and set apart
"one or more areas of land for the occupation, residence and other
reasonable requirernents of Natives either as extensions of any
area already set apart for that purpose or in separate areas". The
urban local authorities rnay also define and set apart "any portion
of a location ...wherein on çucb terms and conditions and within
such limits as...the urban local authority rnay ..prescribe. Natives

shall bepermitted to acquire the lease oflots for the erectiothere-
on of houses or huts for their own occupation". Al1 such actions of
the urban local authorities are subject to the approval of the

Id. at sec. 29.
Id.at sec147.
Laws of South West Africa, 1937,pp. 3888.((3rd. 16.of 1937).
Id.at sec8.
See anfspara.84.
4 Laws of South West Aftica, rgSr, pp. gofi. (Roc.56oof 1951).I40 SOUTH WEST AFRICA

competency or for other just cause ...and rnay order his removal
with his farnily and property to some other part of the mandated
Territory ;and rnay place him under such supervision orrestraint as
to him rnay appear to be expedient"; to "define the boundaries
of the area of any tribe or of a location" ;to "divide existing tribes
into two or more parts or amalgamate tribes or parts of tribes into
one tribe or constitute a new tribe"; he rnay "whenever he deems it
expedient in the general public interest, order the removal of any
tnbe or portion thereof or any Native from any place to any other
place within the mandated Territory"; and he rnay "generally
exercise al1political power and authority which according to the
laws, customs and usages of Natives, are held and enjoyed by any
supreme or paramount Native chief."'

117. In the exerciseof these immense powers, the Administrator
was expressly declared to be above and beyond the control or
restraint of any court of law. He "shall not be subject to any court
of law for or by reason of any order, notice, rule or regulation ...
or of any other act ...committed, ordered, permitted or done in
the exerciseof the powersand authority conferred by this proclam-
ati~n".~
118. The Administrator was authorized to carry out his powers
and duties through the Chief Native Commissioner, Native Com-

missioners, Assistant Native Commissionersand Magistrates3
1x9. The Administrator was also empowered "whenever he
deems it desirable" to "set aside areas as Native reserves for the
sole use and occupation of Natives generally or of any race or tribe
of Natives in particular and the inhabitants thereof shall be subject
to such restrictions and to such regulations as he rnay pre~cribe".~
120. Inside the Police Zone, "Natives" are to be found in
"Native" reserves, rural areas outside "Native" reserves, and
urban areas. As has been explained, the control of "Native" ad-
ministration within the urban areas is vested in the urban local
authorities, subject to the powers of the Minister of Native Affairs
(prior to April 1,1955, the Admini~trator.)~Outsidethe urban areas,

the administration of "Native" affairs is exercised through the
Native Commissioners.The Magistrats of the several districts serve
qlso as Native Commissionersfor their respective districts. There
are 17 such magisterial districts within the Z~ne.~
121. A Welfare Officer or a Superintendent of Reserves is in
charge of each large reserve in a magisterial district in the Police

l Id. at sec.1.
Id. at sec2.
' Laws of South West Africa,1915-22 (A. J. Waters, Windhoek, South West
Africa), pp. 7498. (Native Administration Pro1922, P. NO. II of 1922).
"ee aate,para. 110.
' U.N. Doc. No. AIAC731L.3, at 335, para. 28 (1954). MEMORIAL OF ETHIOPIA 111
Zone. Such officerin charge reports to the Magistrate in the latter's

capacity as the Native Commissionerfor the district. When deemed
necessary, a Native Reserve is divided into wards by the Native
Commissioner (Magistrate). Each ward may be placed under the
control of a "headman", who in turn is under the control of the
Superintendent .*
122. The "headman" is ordinarily a "Native". In each Native
Reserve, a Native Reserve Board is established to assist and make

suggestions in regard to the administration of the Native Reserves
Trust Fund, and generally to assist the Superintendent in his work
of developing and controlling the reserves2 A Native Reserve
Board consists of the local Native Commissioner (Magistrate) or
Assistant Native Comrnissioner, the headman and not more than
six adult "Native" males who are initially elected by the adult
"Native" males of the reserve, and then appointedby the Adminis-
trator, acting through the Native Commissioner (Magistrate). The

Administrator (after April 1,1955 he Union Minister of Native
Affairs) may, in his discretion, dissolve any Native Reserve Board.
He may also, in his discretion at any time and for any reason what-
soever, dismiss any elected member of such a B~ard.~
123. The "Native" headman and the "Native" members of the
Native Reserve Boards represent the sole participation by "Na-
tives" in the administration of the Native Reserves within the

Police Zone. As has aiready been explained, the "Native" headman
and the "Native" members of the Native Reserve Board are
wholly under the control of the "European" officials heretofore
described.
124. Outside the Police Zone, in the "Native" reserves, the
"Natives" are permitted to operate under tribal law and custom,

subject to guidance, supervision and control by the Governor
General and by the Union Minister of Native Affairs exercised
through officers stationed within these "Native" reserves. The
Governor General has power to divide existing tribes into two or
more parts; to amalgamate tribes or parts of tribes into one; to
constitute a new tribe; to define the boundaries of the area of any
tribe; to order the removal of any "Native" or groups of "Natives"
from any place to any other place within the Territory; and in
general to exercise al1of the powers which traditionally would have
been exercised by any supreme or pararnount Native Chief.4

125. In 1958, the Union Department of Native Affairs was
divided into two departments. The functions which the Depart-

a U.N. Doc. No. AlAC.731L.10, at 53, para. 127 (1957).54).
a lbid.
' U.N. Doc. No. AIAc.731L.10 at 63-64, para. 161 (1957). These are the powers
vested originally in the Administrator under the Native Administration Procla-
mation, 1928 (Laws of South West Africa, 1928, pp.f.. P. No. 15 of 1928).
see artte. parI16-119 and fns6, p. 139, and1-4,p. 140.142 SOUTH WEST AFRICA

ment-and its Minister-had theretofore exercised with respect
to the Territory of South West Africa weretransferred to one of the
two newly created departments, known as the Department of
Bantu Administration and Development, and its Minister.'
126. The Minister of Bantu Administration and Development
is assisted by a Native Affairs Commission,of which the Minister
or a deputy designatedby him servesas chairman, andthe Adminis-
trator of South West Africa serves as an ex oficio member. There
are also three to fiveother members. The functions of the Commis-
sion are advis~ry.~

127. The Minister of Bantu Administration and Development
has delegated a number of his powers to the Administrator of the
Temt~ry.~ The erstwhile Chief Native Commissioner has been
renamed the Chief Bantu Affairs Commissioner, and, as such,
continues to operate under the Administrator as the chief operating
officer of the Department of Bantu' Administration and Develop-
ment within the Temt~ry.~
To sum up the situation with respectto su#rage and participation
in government,whetherterritorial, local or tribal, and whetherut the
political or administrative lev:l
128. (1) The right of suffrage is completely denied to the
"Native" population.
(2) At the political level of the Government of the Temtory,
including the Adrninistrator, the Legislative Assembly, and the
Executive Committee, the "Native" population, although it
constitutes ovenvhelmingly the larger part of the total population
of theTemtory, has no participation whatever.

(3)At the administrative levels of the Government of the Terri-
tory,in the Public Service,the participation of "Natives" isminimal.
144th few exceptions "Natives" are confined to the lowest levels
of employment involving neither ski11nor responsibility.
(4) In the government of the established local units within the
Temtory-the municipalities and the village management board
areas-the "Native" population is almost entirely excluded from
participation or even any semblance of participation. The sole
faint approximation of any kind of participation is to be found in
the lirnited advisory role of the Native Advisory Boards with
respect to the "locations", "Native villages" and "Native hostels",
and even this minimal role is camed out under the firmcontrol
of the "white" local authorities and the Administrator (after
April 1, 1955, the Minister of Native Affairs and currently the
Minister of Bantu Administration and Development).
U.N. Doc. No. AlAC.731L.13 a28.paras. 76. 77 (1959).
'The Native Afiairs Act 1959, (Act No. 55 of 1g5g), as cited in AIAc.731L.14
p. 42,para. 108, and fn. 76 thereto.
' U.N. Doc. No. AIAC.731L.14, at 43. pa'a. 109.
Id. at para1x0. MEBlORIAL OF ETHIOPIA I43

(5) In the administration ofCthe "Native" reserves, the same
pattern of discrimination, negation and frustration prevails. Al1
significant authority is confined to "Europeans". The only sem-
blance of participation by the "Native" population is to be found
in the rudimentary 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 administration under tribal laws and customs
still permitted to the "Natives" in the Native Reserves outside
the Police Zone. As has been pointed out, even this shadowy par-
ticipation is kept subject to complete, comprehensive and perva-

sive control by "Europeans".
(6)In sum, by law and by deliberate and consistent practice,
the Mandatoryhas failed to promote 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 government. It
has not only failed to promote such development to the utmost,
it has made no notable effort to do so. To the contrary, the Man-
datory has pursued a systematic and active programme which
prevents the possibility of progress by the "Native" population
toward self-respect, responsibility or ski11in any aspect of citizen-
ship or govemment, whether Temtorial or local or tribal.

5. Well-Being, Social Progress and Develo$ment : Security of the
Person,Rights of Residenceand Freedom ofMovement

(a)Statementof Law

"ln accordance with these legal norms, the Mandatory's duties
to safeguard and promote the 'material and moral well-being', the
'social progress'and the 'development' of the peoples of the Terri-
tory, must reasonably be construed to include.

(4) Security of such persons and their protection against arbitrary
mistreatment and abuse ;

(5)Equal rights and opportunities for such persons in respect of
home and residence, and their just and non~discnminatory treat-
ment ;
(6)Protection of basic human rights and fundamental freedoms
of such persons;

(8) Social development of such persons, based upon self-respect
and civilized recognition of their worth and dignity as human
beings." l

Pp. 107-108supra.144 SOUTH WEST AFRICA
b. Statementof Fact 0

Introduction
129. In the foregoing sections of this Memorial, which describe
and analyze the situation of the "Native" population of the Terri-
tory in terms ofagriculture, land tenure, industry, labor and govern-
ment (territorial, local and tribal), there emerges a pattern of
comprehensive, pervasive and tight control over the lives of the
"Native" population of the Temtory. The pattern is created by
interlocking statutes, decrees, regulations, and administrative
policies and practices. This section of the Memorial deals with the
pattern ofcontrol asit bearsupon the persona1security of"Natives"
within the Temtory, their rights of residence and their freedom of
movement .

Security of the Person

130. Reference has previously been made to the precarious
situation of any "Native" under the Vagrancy Proclamation, 1920.
Any "Native" "found wandering abroad and having no visible
"shdul not give a good and satisfactory account of himself" is
deemed "an idle and disorderly person". As such he may be
arrested without a warrant, and upon conviction he may be im-
prisoned with or without hard labor and with or without solitary
confinement for periods up to three months. Corresponding pro-
visions apply to any "Native" "found without the permission of
the owner ...wandering over any farm, in or loitering near any
dwelling house, shop, store, stable, outhouse, garden, vineyard,
kraalorother enclosedplace" ;or "loitering upon any road" crossing
a farm, or "loitering at or near any hut, house or other building
upon any farm". The power to arrest any such "Native" with or
without a warrant is vested not only in any magistrate or police
officer but also in any owner or occupier of land upon which the
"Native" may be found. In addition, every owner of a farm "for
the purpose of searching for any idle and disorderly person" may
"enter without awarrant and make search in anyhut, house or other
building upori such farm".'
131. Reference has previously been made to the power of any
Superintendent within a "Native" reçenre, under Section 20 of
the Native Administration Proclamation 1922,to order "any male
resident of a Reserve" who is believed by the Superintendent to
have "no regular and sufficient lawful means of support" or to
lead "an idle existence" totake up "employment on essential public
worksor serviceswithin or without the Reserve at a sufficient wage
to be determined by such Superintendent."

' See ante, para. 70. MEMORIAL OFETHIOI'IA I45

132. By another regulation issued under the Native Administra-
tion Proclamation 1922, any magistrate with the approval of the
Administrator may order any resident of a "Native" Reserve or
person within such Keserve, who shall in the opinion of such magis-
trate be an undesirable person, to leave such Reserve within a
time specified by the order of the magistrate, provided that an
opportunity shall first have beengiven to such person to showcause
to the magistrate why he should not be ordered to leave in this
mariner.'

133. Under Section IO of the Native ~dministration Proclama-
tion 1922,~any "Native" "found beyond the confines of the loca-
tion, reserve, farrn or place whereon he reddes or where he is em-
ployed shall be bound upon the demand of.any police official,duly
authonzed municipal officialor native constable or any land owner
or lessee to produce his pass ..and any native having no pass ...
or neglecting or refusing to produce .the sarne when so called upon
shail be guilty of an offenceand may be forthwith arrested by any
such police .official, municipal official, native constable, land
owner or lessee without a warrant and shall be liable on con-
viction to" prescribed penalties.
134. Reference has previously been made to the power of any

police officer,or any officer for the management or inspection of
"Native" affairs in urban areas, to arrest any "Native" within a
proclaimed area whenever such officer has reason to believe or
suspect that the "Native" is habitually unemployed; or lacks a
sufficient honest means of livelihood; or is leading an idle, dissolute
or disorderly life; or has without leaveor other lawful cause habitu-
ally absented himself during working liours from his employer's
premises or other place proper for the performance of his work.
The officermay arrest the "Native" without a warrant and cause
him to be brought before a magistrate or "Native" commissioner,
who shall require the "Native" to give a good and satisfactory
account of hirn~elf.~If the "Native" fails to give a good and satis-
factory account ofhimself, he may be adjudged an "idle or disorder-
ly person"; and either removed from the area or ordered into
employrnent .

135. In February, 1960, the Union Prisons Act (No. 8 of 1959)
was made applicable to South West Africa by Proclamati~n.~
Under Section 20 of the Act, the Minister of Justice of the Union
"mai, by notice in the Gazette, establish prisons ..(e) of the type
' U.N. Doc. No. AIAC.731L.3 Add. I, at 123, para. 6, Ileg. 27 jrg54).
(1915-22) Laws of South West Africa (A. J. Waters, Windhoek, South West
Africa) pp. 749ff. (Proc. NoIIof 1922).
See antepara. 68 and fn.1, p. 126;see also AIAC.731L.3Add1;pp. 147-48,
paraUnion of South Afnca Statutes, 1959, pp. 168.
Union Proc. No. 271 of 1959 (Official Gazette of South West Africa 2235).
as cited in U.N. Doc. No. A/AC.~~/L.I~, at 117-18, paras. 351, 353 (1959).14~ SOUTH WEST AFRICA

known as farm coloniesto which perçonsdeclared to be idle persons
may be sent to learn habits of industry and labour".
136. Under Section I ofthe Undesirables Removal Proclamation,
1920,'as amended by Union Proclamation 51of 1937,~the Adminis-
trator for "Europeans".and the Ministerof Native Affairs for "Na-
tives" isempoweredto expelfrom the Territory any person "ifhe is
satisfied" that such person "has directly or indirectly intlicted or
threatened to intlict upon any person any harm, hurt or loss,
whether to his person, property, reputation or feelings, or has
directly or indirectly done or threatened to do anything to the
disadvantage of any person, with the object of compeiiing or in-
ducing that person or 'any other person" to perform any act from
which he might lawfully abstain or refrain from performing any act
whichhemight lawfuilydo.The unbridled discretion ofthe Adminis-
trator in the exerciseof this power is emphasized by the legislative
history of the provision. When the Proclamation was originally
adopted in 1920, the Administrator could exercise his.power of
expulsion whenever it was "shown to his satisfaction that there

are reasonable grounds for believing" certain described facts
concerning the alleged offender. By the amendment of 1937, the
reference to "reasonable grounds for believing" was dropped in
favorofasimple requirement that the Adrninistrator be "satisfied"
concerning alleged facts, apparently whether or not there might
be reasonable grounds for his being satisfied.
137. The uncontroiied scope of the foregoing power of the
Administrator is further emphasized by subsection (3) of said
section I of said Proclamation as amended. Subsection (3) expressly
provides that "No court shall have jurisdiction in respect of any
direction issued by the Administrator" in the exerciseof his powers
of expulsion under said section 1.

Rights of Residence

138. Under Section 16 of the Native Administration Proclama-
tion 1922, the Administrator (since April I; 1955, the Minister of
Native Affairs of the Union) is empowered "whenever he deems it
desirable [to] set aside areas as native reserves for the sole use and
occupation of natives generally or of any race or tribe of natives
in particular and the inhabitants thereof shall be subject to such
restrictions andto such regulations as he may prescribe."
139. Reference has previously been made to the powers of the
Administrator (after April I, 1955, the Governor General or the
Union Minister of Native Affairs), with respect to the "Natives"

(1915-22) Laws of South West Africa (A. J. Waters. Windhoek, South West
Africa,pp. 424-25 (PTOC.NO. 50 of 1920).
Loc.93cil.. suprfn. 4, pIII,sec. 16.pp. hffsec. 7. MEMORIAL OF ETHIOPIA I47

within any "Native" Reserve. The Administrator (Governor
General) has power, intea rlia, to "define the boundanes of the area
of any tnbe or of a location"; to "divide existing tribes into two or
more parts or amalgamate tribes or parts of tribes into one tribe or
constitute a new tribe"; to "order the removal of any tribe or
portion thereof or any Native from any place to any other place
within the mandated Temtory" whenever "he deems it expedient
in the general public interest ..." In the exercise of these immense
powers, the Adrninistrator (the Governor General) is expressly

declared to be above and beyond the control or restraint of any
court of law."
140. Reference has previously been made to the requirement that
"Native" laborers recruited from the "Native" reserves outside
the Police Zone for labor within the Police Zone may remain within

the Police Zone only for the period of employment provided for
in the contract, and in no case exceeding two-and-a-half years.
Any such "Native" must carry his identification pass with him at
al1timeswithin the PoliceZoneand produce it on the demand of any
member of the South West Afnca Police, or any other authonzed
officer or any person who employs him.2

141. Under section 25ofthe Natives (Urban Areas) Proclamation,
1951,entitled "Removal of Redundant Natives from Urban Area~",~
the Governor General may "declare any urban area to be an area
in resp6ct of which, on being satisfied that the number of natives
within that area is in excess of the reasonable labor requirements of
that area, he may ...

"(a) require the urban local authority within a specifiedperiod
to lodgewithhima listofthe namesofthe nativeswho,initsopinion,
ought to be removedfrom'the urban area;
"(b) determine which of the natives specifiedin that list shall
be removed fromthe urban area;
"(c) make provision forthe accommodation of the natives so
removedwhoare lawfuily domiciledin the Territory."

Thereafter, the urban local authonty, acting under the Adminis-
trator's determination, must make arrangements for the removal
of the "Natives" concemed, in accordance with the prescnbed
procedure.

142. Except with the written approval of the Administrator,
given after consultati.on with the urban local authority concemed,
"Natives" are forbidden to congregate upon Iand situated outside
an urban area within five miles of the boundary thereof. To supple-
ment this prohibition, no owner, lessee or occupier of land situated
outside an urban area within five miles of the boundary thereof

' See aale, paras116, I17,and rzq.
l See amle.paras. 55, 65.
a (1951) Laws of South West Africa, pp. goff. (Proc. No. 56 of 1951).14~ SOUTH WEST AFRICA

"shali aliow natives to congregate upon, or any native who is not
bona fide in his employ to reside upon, or to occupy any dweliing
on that land."'
143. The Administrator, upon the request of the local authority,
for any urban area, may prohibit any "Native" from entering such
urban area for the purpose of seeking or taking up employment or
residing therein, except in accordance with prescnbed conditions.*

144. Reference has already been made to the requirement, in
effectsince 1955 that "Natives" who enter any one of the many
proclaimed urban areas must not only register but must also pay
a fee of a shilling. Upon registration, any such "Native" must
remain within-a reception depot until he obtains employment or is
required by order to leave. Upon his employment, his employer
must pay a fee of two shillingsinitialiy and each month thereafter.%
145, Reference has already been made to the power of urban
local authorities to set aside separate areas of land.within munici-
palities or Village Management Board areas for occupation by
"Natives". Such separately designated areas for occupation by

"Natives" are of three types-locations, "Native" villages a,nd
"Native" ho~teis.~

Freedom of Movement
146. Under Section II of the Native Administration Procla-
mation 1922, no "Native" may travei within the Police Zoneexcept
"upon a pass issued [to hirn] by the European owner or lessee of
the farrn orprivate property onwhichhe resides,or by his European
employeror by a magistrate, a superintendent of natives, an officer
or constablein charge of a police post or any person appointed for
the purpose by the Administrator."

147. Under Sections II and 12 of the Native Administration
Proclamation 1922,~ no "Native" may leave the Temtory of South
West Afnca except upon a pas which may be issued to him only
by a magistrate or by the Adrninistrator. Under Section 12, any
person authorized to issue a pass has "discretion to refuse to issue
a pas to any native to enter or depart from the Temtory or travel
therein for any reason appearing to him to be sufficient". In any
case, the Administrator "shall have full authority or discretion ...
to order that a pass shall be issued or refused to any native not-
withstanding any prohibition or other provision contained in this
Proclamation."

l Id. at sec. 13.
Id. asec.IO.
Seeanfc, para71.
'See ante,paras.III,112.
Lac. cil., supra. fn. 4III.
Id. atsecsII, 12. MEMORIALOF ETHIOPIA I49

148. Under Section 4 ofthe Native Administration Proclamation
1922, "NOperson other than a European shall enter the Temtory
without a permit fromthe Adrninistrator provided that such permit
shailnot be required in the case of a person entering the Temtory
to take up employment aiready offeredor in the course of employ-
ment as a farm or domestic servant, Government servant, mine
servant, or inuch other occupationas the Administrator rnay from
time to time ..prescribe."
149. Reference has previously been made to the fact that no
"Native" from outside the Police Zone rnay enter the Police Zone
or hold employment there without an identification pass issued
by an authorized offi~er.~
150. The Administrator rnaydeclareany urban area within which
a local authority has set,spart areas for "Native" occupation,bor
any area in which "Natives" are congregated in large numbers for
mining or industrial purposes, to be a "proclaimed area". The
Administrator rnay "require every male native entering the pro-
claimed area ..to report his arrivai within a prescribed period, to
obtain a document certifying that he has or has not obtained per-
missionto be in the proclaimedarea, and to producethat document
on demand to any authorized offi~er".~The Administrator rnay
refuse ,permissionto any "Native" to be in the proclaimed area
whenever there is a surplus of "Native" labor available within the
proclaimed area; or if the "Native" failsto carry the pass required
.by the applicable laws; or if he is under the age 18 yem unless
he is accompaniedby his parent or guardian.)

151. The Administrator rnay prohibit any female "Native"
from entering a proclaimed area for the purpose of residing or
obtaining employment therein without a certificate of approval
froman officerdesignatedby the localauthority forsuchproclaimed
sioner of the district wherein she resides. If "the necessary accom-
modation" is available, a certificate shali upon application be
issued to any fernale "Native" "who produces satisfactory pmf
that her husband, or in the case of an unmarried femaleher father,
has been resident and continuously employed in the said area for
not lessthan two years." Any such certificate rnay be for a limited
period and rnaybecanceliedat any time after one month's notice.'

152. The Administrator rnay at the request of any urban local
authority prescribe a curfew, under which no "Native" "shaii be
in any public place Within the area controlled by such authority
during such hours of the night asare specified.."
Id. at se4.
' Seeanfs,para. 65.
Natives(UrbanAreas)Proclamation,1951,ldt.supraf,. 3.p118Sec.22.
6 Id. at sec. zz(d).
5 Id. at se27 (1).150 SOUTH WEST AFRICA

153. In their cumulative effect, the multiple restraints upon the
movement of "Natives" and the vulnerability of the "Natives" to
arbitrary arrest press upon the individual "Native" with an almost
suffocating weight. To appreciate the burden, it rnay be helpful to
try to envisage the situation from the angle of vision of any individ-
ual "Native". If the "Native" is a resident of a "Native" Reserve,
whether within or outside the Police Zone, he rnay at any time
suddenly be ordered to leave the Reserve (antepara. 132) ;or he rnay

be removed to some other place within it (ante, para. 139). If, for
any reason, he should himself want to leave a Reserve outside the
Police Zone to enter the Police Zone, he rnay be stopped at any
point and required to show a pass authorizing him to be within the
Police Zone (ante,paras. 140, 149). Wherever he rnay be, whether
inside or outside the Police Zone, he rnay be required at any time
to 'produce a pass showing that he has a right to be within the
Territory (ante,para. 148). Such demands upon him to show his
pass rnay be made repeatedly. If he has a job within the Police
Zone, he rnay be required at any time to produce a pass showing
has right to hold the job; and he rnay aiso be required to prove that
he has not been on the job for more than a prescribed penod, not
exceeding two-and-a-half years (ante,paras. 140, 149). If he should
seek to enter any urban area, or any area in which "Natives" are

congregated in large numbers for industrial or mining purposes, he
inust again be ready at any time to produce a document showing
that he has special permission to be there (ante,para. 150). Even if
he has such a document, he must take care lest he find himself
within a public place after curfew (ante,para. 152). Even if he suc-
ceeds in establishing his right to reside and be employed within
an urban area, he rnay be removed at any time as "redundant"
(ante, para. 141). Even though lawfully employed, he must be
constantly on guard during his moments of leisure. If he should
simply take a walk, he rnay be challenged to prove that he is not
" an idle and disorderly person"(ante,para. 130).If he should happen
to be upon any road crossing a farm, or near a dwelling house or
shop or store, he rnay be chailenged as a loiterer, and arrested
without a warrant by any police officer or any'owner or occupier
of land on which he rnay happen to be (ante,para. 130). If he leaves
the confines of his place of residence or place of employment, he

does so at his penl, for he rnay be challenged at any moment to
produce a pass, and, failing his ability to do so, rnay be arrested
without a warrant (ante,para. 133). In addition, he rnay find him-
self arrested without a warrant at any time within a proclaimed
area byany officerwho suspects that he rnay lack a sufficient means
of livelihood or even that he has absented himself during working
hours from his place of employment (ante,para. 134). Furthemore,
any interchange with any other person rnay subject him to arrest
and expulsion from the Temtory, if the Minister of Bantu Admi-
nistration and Development in his uncontrolled discretion should 31EMORIAI. OF ETHIOPIA I5I

chooseto interpret the interchange as fallingintoany one of several
extremely vague categories (ante, para. 136).
To sum up thesituation withrespectto security of theperson, rights
O/ residenceand freedomof movementfor "Natives" within the Terri-
tory of South West Africa:
154. Through interlocking statutes, regulations, decrees, orders
and administrative policiesand practices :
(1)In a variety ofsituations and under a variety ofcircumstances,
hereinabove more particularly described, "Natives" within the
Territory of South West Africaare subject to arbitraryarrest, often
without any warrant.
(2) Powers to make arrests may be exercised by designated per-
sons at their largely uncontrolled discretion.

(3) "Natives" are not allowed even a faint approximation of the
degree of freedom of choice permitted to "Europeans" concerning
where they may reside within the Temtory. On the contrary,
"Natives" are confined within sharply defined areas and places
under prescribed conditions. The pattern of restrictions upon the
residence of "Natives" is uniformly arbitrary and discriminatory;
it is conceived and executed to give increasjngly intensive effect to
the dominating principle of apartheid.
(4) Liberty of movement has been effectively and almost com-
pletely denied to the "Native" population of the Territory in a
large number and variety of ways hereinabove more particularly
described. The U.N. Committee on South West Africa, in rendering
its report to the Fourteenth Session of the General Assembly in
1959,summed up the situation by stressing the "intricate system
by which the free movement of the 'Non-European' population
andthe 'Native'population in particular isrestricted and controlled
in the Territory of South West Africa." The Committee empha-
sized that there had been no indication of any relaxation in the
system of control during 1959.1The Comrnittee went on to express
" ts grave concern over the unwarranted restrictions, based on
race or colour, placed on the freedom of movement of the 'Native'
population of South West Africa, who form the overwhelrning
majority of the total populationJ'of the Territ~ry.~
(5) In sum, in the entire complex of provisions for the arbitrary
arrest of "Natives" and tight restrictions upon their residence and
movement, the Mandatory has given consideration solely to the
convenience or advantage of the Mandatory government and of
the "European" citizens and residents of the Territory. The Man-
datory has uniformly failed to promote the material and moral
well-being, the social progress and the development of ovenvhelm-

14th Ses., Supp. No. 12, p. 24, para. 162 (A/~I~I) (1959).. Off.Rec.
Id. at 25, para. 175.I52 SOUTH WEST AFRICA

ingly the larger part of the inhabitants of the Temtory of South
West Afnca in terms of secunty for their persons, their rights and
opportunities of residence,and their freedom of movement. On the
contrary, by law and by practice, the Mandatory has followed a
systematic course of positive action which thwarts the well-being,
inhibits the social progress and frustrates the development of the
great majonty of the population of the Territory in vital and fun-
damental aspects of their lives.

6. Well-Being,SocialProgressandDheiofiment: Education

(a)StatementofLaw
"In accordance with these legal norms, the Mandatory's duties
to safeguard and promote the 'material and moral weil-being',the

'social progress'and the 'development'of the people of the Terii-
tory must reasonably be construed to include:
(7) Educational advancement of such persons;
(8) Socialdevelopment of such persons, based upon self-respect
and civilized recognition of their worth and dignity as human

beings. "l
(b) Statemnt ofFacts

BackgroundInformation

155. The system of education in the Territory of South West
Africa is estabiished and controlied in accordance with the terms
ofthe Education Proclamation, 1926,~asfromtime to time amended.
Under the Proclamation, .the "general control, supervision. and
direction of education" is vested in the Adrnini~trator.~
156. The ~dministrator carries out his functions with respect

to education in the Temtory through a Department of Education.
The director of the Department is appointed by and subject to the
direction and control of the Admini~trator.~
157. In May, 1958,the Administrator constituted a Commission
of Inquiry into non-European Education. The report of the Com-
mission.became available during 1959.The Commissionreported,
inter da, on the "advantages of eventually transferring Native
and Colourededucation, respectively, to the Union of South Afnca
Department of Bantu Education and the Union Department of
Coloured Affairs."

158. The educational system of the Temtory is organized in
three separate divisions. .Separate schools are maintained for

l Pp. 107-108.supra.
a Id.at)sec. 3.fSouth West Africapp. 13zff. (Proc. No: 16 of 1926).
' U.N. Doc. No. AIAC.731L.roat 1j7,paras. 512-513 (1957).,
,' U.N. Doc. No. AIAc.731L.14, at 124-125, paras. jC>9-374(1959). MEMORIAL OF ETHIOPIA I.53
"Europeans", "Natives" and "ColouredPersons".l This separation
reflects the specificapplication within the sphere of education of
the generally prevailing doctrineof apartheid, accordingto which
the status, rights, duties, opportunitiesand burdens of the popu-
lation of the Territory are determined and allotted arbitrarily on
the basisof race,olorand tribe, without regard eitherto the needs
or capacitiesofthe individuals or groupsaffectedor to the duties of
the Mandatoryunder the Mandate.

Scope and Quality of Education Available
Elementary and High SchoolEducation

159. The minimum education required for "European" children
within the Territory involves compulsory attendance until the
pletion of the tenth school year. The schools for "European"-
children offer courses of instruction sirnilar in scope and content
to those given for children in the same age groups in the United
Kingdom, the United States and the continental countries of
Western Europe.'

160.By contrast, education for "Native" and "Coloured"
and "Coloured" population have requested compulsory education,
the Administrationhas adhered to the viewthat the "Native" and
"Coloured"populationis not ready forsuch a stepa8

161. The schools for "Non-Europeans" fall into three goups:
govemment schools, missiona schools accorded "recognized"
status, and missionschoolsi cZd; not have "recognized"status.
In the case of the "recognized" missionschools, theemtonal
Government pa sthe salariesof teachers,providesthe equipment,
sionof booksandepaper.'nance of schoolbuildings and the provi-

162. The government schools and the "recognized" mission
schools provide a course of instruction for "Non-European"
children up to and including "Standard VI", representing the
completionofaneighthschoolyear.Theinstruction actually reaches
make the addition of classesand teathers a pear justifiableto the
Territorial Adriiinistration. Opportunior 'education beyond
(8"Standard VI" for "Native" and "Coloured" children isalmost
negligible."
- -
U.N. Doc. No. A/AC.~~/L.IO,at 177, para. 514; Report of the Cornmitte
Para. 154 (Al39061(1958). GenOff.ec. 13th Sas., Supp12,p. 26,
U.N. Doc. No. AIAC.~~/L,t 177-78, para. 515 (1597).
Id. at 178, para.517.
' See post, para. 165.518. SOUTH M'ESTAFRICA

163. As of 1959,out of a total estimated "European" population
of 69,000, there were approximately 15,523pupils going to school.
On the other hand, the number of "Native" children attending
school was estimated at 32,624 out of a total "Native" population
of 464,000. In percentage terms, this represents school attendance
by "European" children constituting approximately 22 per cent
of the total "European" population, and school attendance by
"Native" children representing a bare 7 per cent of the total "Na-
tive" population.
164. In the areas outside the Police Zone, most of the mission
schools are "unrecognized". The "unrecognized" mission schools
normally offer courses of study up to approximately "Standard
III"-i.e. through the completion of the fifth school year on1y.l

Since the larger part of the "Native" population lives outside the
Police Zone,2 this represents the limit of education practically
available to most of the "Native" children.
165. The school system for "European" children includes not
only the infant schoolandthe elementary school,but also complete
education at the high school level-i.e. through "Standard X",
representing the completionofthe twelfth year.For"Non-European' '
children, however, there are only two high schools in the entire'
Territory: one for "Native" children at Augustineum and another
for "Coloured" childrenat Reh~both.~

166. The disparity between schoolopportunities for "European"
children and such opportunities for "Non-European" children is
also manifest in the provision of residential facilities made for
children while attending school. Because of the sparse distribution
of the population over large areas within the Territory, it is neces-
sary to provide school "hoste1s"-in effect boarding establish-
ments-for children attending schools far from their homes. Such
hostels are provided in sufficient number to accommodate al1
"European" children. It is reported that for the year 1959 there
were 61 hostels for "European" children. The position of "Non-
European" children in this respect is indicated by the following
statement in the 1960 Report of the Committee on South West
Africa (paragraph 380, p. 48) :"For 'Native' children, the available
officialinformation indicates that there are at least three hostels
within the Police Zone, one at the Augustineum teacher trainingg)
school in Okahandja, and the others in the Aminuis and Waterber?
East 'Native' reserves. In the urban areas of the Territory, the
position was descnbed as follows by the temtonal Commissionof
Enquiry into Non-European Education :

Id.at 179.para. 519.
' See anle, paras. 6 and 7.
Id.,at 178-79,aras.515,519. BlEMORIAL OF ETHIOPIA I55

'In accordance withthe policyof the Department of Native
Affairs whichtook overthe administrationof Native Affairs in
SouthWestAfricain AprilIg55,noschoolhostelsarepermittedat
Nativeschools inlocationsin European areas'."
Vocational Training

167. In the entire Temtory of South West Afnca, there appears
to be only one institution above the level of the high school. This
is the Neudam Agricultural College.The College provides a two-
year course, solely for "Europeans".l

168. "Natives" may receive training as teachers at two training
schools within the Temtory. One, the Augustineum, is maintained
b.y the Territorial Government at Okahandja; and the other is a
Roman Catholic school at Doebra.

169. There appear to be no facilities within the Temtory for
the training of "Non-European" nurses. In the 1958 report of the
Temtorial CommissionofEnquiry into "non-European" Education,
it was stated that the Administrator intended to start training
programs for male and female nurses at the Government Hospital
at Windhoek. In the budget speech of the Administrator for 1960,
the Adrninistrator stated that training courses for "European"
nurses had definitely beenintroduced, and that for this purpose the
State-aided hospital in Windhoek had been taken over as a state
hospital. However, despite the statement in the 1958report of the
Commission of Enquiry, there is no evidence that any beginning
has yet been made in the training of "Non-European" nurses within
the Temt~ry.~

170. To the extent that "Natives" or "Coloured persons" can
avail themselves of the limited facilities and opportunities available
to them for training as nurses in the Union, they nevertheless can
enter the nursing profession only on a plane maintained and stig-
matized as infenor. The scheme to confine them to a status of
publicly proclaimed inferiority isrevealed, andthe methods carrying
it out are exemplified,in such measures as the Nursing Act, 1957.'

171. The Nursing Act, 1957, a statute of the Union, is made
applicable to the Temtory as well asthe Union by its terms0 The
Act vests extensive authority over the nursing profession in a
South AfricanNursing Council ;6 and also vests important responsi-
bilities relating to the profession in a South African Nursing
Association.6

'U.N. Doc. No. A/AC.73/L.io, at 184, paras. 54r. 542 (1957).
' U.N. Doc. No. A/AC.~~/L.I~, at 113-14, para. 338 (1959).
a Statutes of the Union of South Africa, 1957, pp. 1086ff. (Act NO. 69 of 1957).
' Id. at secs2.IIO,x11-15> 22-29.
aId. at secs. 3021, 39, 40. 15~ SOUTH WEST AFRICA

172. NOpersoniseligibleto appointment or electionas a member
of the South African NursingCouncil "whois not a South African
citizen and a white person permanently residentin the Union or
the Temtory".' The same requirement govemsehgibility to serve
as a memberofthe Boardofthe SouthAfrican Nursing Association,
whichexercisescontroloverthe affairsofthe As~ociation.~ Although
the Act does provide that one member of the eighteen-member
Board is to be elected by the "advisory committee for natives"
hereinafter described,and another is to be electedby the "advisory
committee for colouredpersons" hereinafter described,even these
members must themselvesbe h hi te".^

173. The Act provides for the establishment of an "advisory
board for "natives" and an "advisory boardfor colouredpersons".
Each advisory board consistsof fivemembers, electedby "Native"
nursesor midwivesor "Coloured"nursesor midwives,respectively.
The boards may "advise that council [South Afncan Nursing
Council] on such matters relating to nurses or rnidwiveswho are
coloured personsor natives, asmay be referredto such a board by
the council, or upon which any board may wish to report to the
c~uncil.'~~
174. The Act divides the membership of the South African
Nursing Associationinto three se arate classes: "white persons",
"colouredperçons"and"natives".il eetingsofthe threeclassesmust

be held separately. Adecisionreached by a majority at a meeting
of "members who are white persons" constitutes a decisionof the
Association.By contrast, a decision reached at a meeting of "na-
tive" or "coloured" members is merelya subject for consideration
by the "advisory committeefor natives" orthe "advisory commit-
tee for colouredperçons", as the case may be. Such advisory com-
mittee in turn reports the decisionwith its recommendationto the
Boardan
175. Separate registers and roUsare kept "in respect of white
persons, coloured personsand natives." 6 It is made a criminal
offenceto causeor permit any "white person" registered or enrolled
as a nurse or as a student auxiliary nurse to serveunder the "con-
trol or supervisionof any registered or enrolledperson who isnot
a white person, in any hospital or simiiar institution or in any
training school," except in an "emergency".'

176. The Act authorizes the South Afncan Nursing Council
to prescnbe "different uniforms, badges or other distinguishmg
devices ..inrespectofwhitepersons, colouredpersons and natives"

Id.at sec4(1) (c).
Id.at secs34, 35(4).
'IId.at am.316,.17. ,5(2)(f)35(4).
Id.at sec33.
Id.at sec12(4).
Id. asec.49.
a Id.at secaII (1(k),II(4). YEMORIAL OF ETKIOPIA I59

Comparative Budgets

184. Despite the great preponderance in nurnbers of the "Native"
population over the "European", expenditures on education have
been rnuch higher for the "European" population than for the
"Native" population. In 1953-5 4h,total expenditure on "Euro-
pean" education was ,t;678,180whereas the total expenditure on
"Native" education was mereIy L1oo,578, In 1954-5 ex,penditure
on "European" education rase to £723,897 ;~vhereas expenditure
on "Native" education was merely £108,392. In 1955-56, the expen-
ditureon "European" education rose again to£762,346; theexpen-
diture on "Native" education also rose, butonly to j1119,250.'

185. The foregoing figures may be illurninated by some per
capita calculations, taking the figures for 1954-55as a basiç. In
that year, the number of "European" çhildren attending school
within the Tenitory was some ~1,382T .he number of "Native"
children attending some sort of school within the Temitory, either
inside the Police Zone or in the large Reserves outside the Police
Zone, aggregated some ~4,858.~Thus, expenhtures on education
during that year for each "European" child enrolled in school
arnounted to some £63.5. By contrast, the expenditure for each
"Native" chld enrolled in school arnounted to some £4.4.It should
,be ernptiasized that theçe calculationsare on the bais of expen-
ditures for chddren actualiy enrolled in the schools. It must be

borne in mind, however, that the enrollment of "Native" children
represents a fat srnaller fractioof the "Native" population than
the enrollment of"European" childrenrepresents of the "European"
population. Inconsequence, the expenditure per capita for thetotal
"European" population as cornpared with the expenditure per
capita forthe total "Native" population would show an even more
fantastic discrepancy.

To szamyb inregard to educatiortwitkin the Territto:y
'2x86T.he laws, policies and practices of the Territorial and
Union Governments relating to education make it çlear that the
Mandatory plans to maintain in the future the existing burden of
negation, frustration and unfair discrimination under which the
adult "Native" population of the Tenitory suffers in the life of the

Territory. Thisis irnplicit in tdenial of educational opportunities
to "Native" children. Ifthe status of the "Native" population is
tobe improved, plainly the improvement must involve the education
of the young. In fact,however, by deliberate policy and practice,
the Union and Temtorlal Governments restrict and shape the
education of the young so asto perpetuate the denial ofpossibilities

' U.N. Doc. No. A\AC.73/L.ro, 179-80paras. 521-52(1957).
Id.at zooparas.285-86.rjjat99,para. 283(t959).160 SOUTH WEST AFRICA
for self-improvementand the relegaticin to a status of irnposed
infenorityto which the "Native" population isnow subject.More
particularl:

(1) Only a smdl fraction of the "Native" children within the
Territory receive any schooling compared with the compulsory
eduçation for al1"European"children of the Territory.
(2) To the extent that "Native" childrenare eduçated at al1
within the Territory, alrnostnone receive any education beyond
"Standard VI", representingthe completionof the eighth sçhool
year, and the rnajoritdo not receiveeducation beyond"Standard
III", representing the completionof the fifth school Yeu.

(3) No facilities for high school education are available for
"Natives" within the Temitory, apart from a high school at
Augustineum,
(4) Apart fromtimitedpossibilities fortraining as teacherswithin
the Temtory, the "Native" popdation has no access to higher
education or toany çignificantform of vocationaleducatio within
the Territory.
(5) While some poçsibility for higher education and vocational
education is theoreticallyavailable to "Natives" fromthe Temitory
in the Union, the possibilitiesarvery meagre, and the pursuit of,
even these meagrepossibilitiesis discouragedby the Mandatory.

(6) Even in the few occupations for which "Natives" do have
some access to opportunities for vocational or technical training
(i.e.-as teachers, nurses, engineering assistants), the Mandatoq
imposes upon "Natives" who enter suchoccupatiom nsch lower
scalesof compensationthan areavailable to "Europeans", sharply
curtailedspheres of activityand a pubticly proçlaimedinferionty
of status.
(7) Despite theoverwheimingpreponderanco ef "Natives" within
the population of the Territory,the total of expendituresfor the
educationof "Natives" withinthe Territoryis only a smallfraction
of the total of expenditures for the eduçation of "Europeam"
within the Territory,
(8) In sum, the Mandatory has failed to use the possibilities of
education to promote the well-being,the social progressand the
developmentof the ovenvhelmir nngajorityof the people of South
West Africa. To the contrary, through deliberateand systen~atic
control of the processes of eduçation, the Mandatoryhaç taken
positive action which drastically restncts opportunitiesfor edu-
cation for"Native"chldrenand"Native" youngmen and women,
and whichcurtails the opportunities, restricts the rewards and
depreciates the status of "Natives" who do manageto acquire
some vocational education (e.g.teachers, nurses, engineering
assistants). In this way, the Mandatorhas removedopportunities t..
MEMOKIAL OF ETBIOPI.4

for any significant improvernent in the well-being, socialprogress
and development of the preponderantly "Native" population of the
Territory.

187. The factual record of the Mandatory's conduct, as herein-
above more particularly set forth, has a desolate but remarkable
consistency. Whatever segment or sector of the lile othe Territory
may be examined, the import of the facts is identical. Each partof
the record supports and confirrns every other part. The record as a
whole supports and confims the record in detail. Indeed, the
record taken as a whole has an impact greater than that of a mere
arithmetical sum of the several parts. The recordas a whole reveals
the deliberatedesign that pervades the several parts.
188. lt might be possible for the Mandatory to explain or ex-
tenuate this or that detail ofthe factual record, ifit were merely
an isolated event orphenornenon. As a matter of speculation, such
a possibility may be acknowledged. But the details are not isolated
events os phenornena. They are çignificant not only in themselves,

but in their mutuaI and multiple relationships and their cumulative
effect. Taken as a whole, the weight of the factual record cannot
.be rnateriallydiminished by atternpts at extenuation. Particular
laws and particular practices, particular orders and particular
acts are alparts of a cohesive and systematic pattern of behavior
by the Mandatory which inhibits the well-being, the social progress
and the development of the overwhelming majority of the people
of South West Africa, in aI1significant phases of the life of the
Territory.
189. As the Applicantç have pr'eviously pointed out, the policy
and practice ofapartheid has shaped the Mandatory's behavior and
permeates the factual record. The meaning of afiartheid in the
Territory has already been explainecihereinabove. The explanation
warrants repeating. Under alpartheid, the status, rights, duties,
oppostunities and burdens of the population are fixedandallocated
arbitrarily on thebasis ofrace, color and tribe, withoutany regard
for the actual needs and capacities of the groups and individuals
affected. Under apartheid, the rights and intereso tfsthe great
rnâjorityof the people of the Territory are subordinated to the
desires and conveniences of a minonty. We here speak ofa$ra~theid,
as we have throughout this Mernoriai, aç a tact and ncitas a word,
asa practice and not as anabstraction. Apartheid, as it actudly is
and asit actudly has been in the Eifeof thepeople of the Tenitory
is aprocess by which the Mandatory excludes the "Natives" of the
Territoryfrom any significantparticipation in the life othe Terri-
tory except insofar as the Mandatory finds it necessary to use the
"Natives" as an indispensable source of common labor or menial
sentice.162 SOUTH WEST AERICA
xgo.Deliberately, systernaticaiiy andconsistently, theMandatory
has discriminatecl against the "Native" population of South West
Africa, whch constitutes overtvhelrningly the larger part of the
population of the Territory. In so doing, the Iilandatory has not
only failed to prornote "to the utmost" the matenal and moral
well-being, the social progress and the development of the people
of South West Africa,but it hasfailed to promote such well-being

and social progress in any significant degree whatever. To the
contrary, the Mandatory haç thwarted the well-being, the social
progress and the development of the people of South West Africa
throughout varied aspects of their live;in agriculture; In industry,
industrial ernployment and labor relations;in govement, whether
territorial, local or tribaand whether at the political or adminis-
trative levelç;inrespect of serurity ofthe peeson, rightsofresidence
and freedom of rnovement; and in education. The grim past and
present reahty in the cor~uition of the "Natives" is unreiieved by
promise of future amelioration. The Mandatory offers no horizon
of hope to the "Native" population.
The Mandatory kas violated, a~d conlinfiesto viotatits obligatiom
as stated in the secortd#aragra$la of Article 2 of the Mandate and
A~tic.tcb2 of theCovewlant the followivg ~ees9ect:s

(i) The Mandatory haç had, and continues to have, the duty to
safeguard and promote "to the utmost" the "material and moral
well-bezng,'the "social #rogress" and the development ofthe people
of the Territory , including more particularly the ecofiomicadvance-
rnelttof the population of the Territory-and noéably ofthe "Na-
tives" who constitute by far the preponderant part of the total
population in agriculture and industry, and the rights and oppor-
tunities ofthat part of such population that is employed as laborers
in agriculture or industry. Nevertheles, in direct violation of such
duty:

(a)The Mandatory has progressively reduced the proportion of
farm land available for cultivation or pastoral use of the "Native"
population, while it has progressively increased the proportion of
such farm land available to "Europeans." This has been çarried
to the point where lesç than 12 per cent of the population, being
"White," enjoys the use of some 45 per cent of the total land area;
while over 88 per cent of the population, being "Native" os
"Coloured," is confined to ody 27 per cent.
(b)The Mandatory haç denied the possibilities of individtial
ownership of land to the "Native" population, and has confined
these rights to the "White" population.

(c)The Mandatory has iirnited the ro1eof the "Native" popula-
tion in agriculture to (a) subsistence farrning within "Native"
reserves and (b) ernployment as çommon laborers or domestics
on "European" commercial farms. In consequence,the "Native'" MEMORIAL OF ETHIOPIA r63
population has not enjoyed any substantial participation in the
expanding possibilities of the commercial agriculture of the Terri-
tory.

(d) The past and present restrictions upon the "Native" popu-
Jation in agriculture are not alleviated by promise or possibility of
future improvement.
(e) Even in connection with emergency relief made available to
the agricultural sector in time of drought, theMandatory has used
overwhelrninglythe larger part of relief funds for the assistance of
the small "European" proportion of the population, while the relief
funds used to help the large "Native" population have been con-
fined to a comparative pittance. -
(f) The Mandatory has denied and continues to deny to the
"Natives" of the Territory opportunity to take part in mining or
other industries as prospector, entrepreneur, operator, or owner.

(g) The Mandatory has denied and continues to deny to the
"Native" population opportunity to take part in executive, mana-
gerial, professionalor technical posts in rniningandOther industries.
(h) The Mandatory fias unfairly prohibited and continues to
prohibit "Natives" from taking part in the processes of collective
bargaining and the conciliation and arbitration of disputes.

(i) The Mandatory has confinedthe participation of the "Native"
population in the industrial economy, for al1practical purposes, to
the role ofunskilled laborer.
(j)The Mandatory has shaped the circumstances and conditions
of labor for the "Native" population into a pattern of constraint
and compulsion that consistently subordinates the interests of the
"Native" laborers to the interests of their "European" employers.
(k) The Mandatory has so drastically curtailed and circum-
scnbed the possibilities of choice for "Native" laborers as to leave
them, for aiipractical purposes, very little freedom of choice with
respect to place of employment, type of employment, identity or
character of employer, or conditions of employrnent.
(1)The Mandatory has denied to "Native" laborers equal legis-
lative protection in the form of provisions for holidays, sick pay,
and compensation in the event of illness,or injury caused by em-
ployment which are made available to "White" employees.

(ii)The Mandatory has had, and continues to have, the duty to
safeguard and promote "to the utmost" the "material and mord
well-being,"the "socid progress"and the development ofthe peoples
of the Territory, including more particularly the political advance-
ment of such persons through rights of suffrage, progressively
increasing participation in the processes of government, develop-164 SOUTH WEST AFRICA

ment of self-government and free political institutions. Neverthe-
less, in direct violation of such duty:
(a) The Mandatory has completely denied the nght of suffrage to
the "Native" population.
(b) The Mandatory has permitted no participation whatever
to the "Native" population at the political level of the Government
of the Territory, including the Administrator, the Legislative
Assembly, and the Executive Cornmittee, although it constitutes
overwhelmingly the larger part of the total population of theTem-
tory.

(c) The Mandatory has permitted only minimal participation
of "Natives" at the administrative levels of the Government of the
Terntory. With very few exceptions, "Natives" are conlîned to the
lowest levels of employment, involving neither skiil nor respon-
sibility.
(d) The Mandatory has almost entirely excluded the ':Nativeo
population from participation or even any semblance of partici-
pation in the govemment of the established local units within the
Territory-the municipalities and 'the village management board
areas. The sole faint approximation of any kind of participation
is to be found in the lirnited advisory role of the Native Advisory
Boards with respect to the "locations," "Native villages" and
"Native hostels ;"and eventhis minimalroleiscamed out under the
firm control of the "White" localauthonties and the Administrator
(after April I,1955,the Minister of Native Affairs and currently
the Minister of Bantu Administration and Development).
(e) The Mandatory has imposed the same pattern of discrimin-
ation, negation and frustration in the administration of the "Na-
tive" reserves. Al1significant authority is confinedto "Europeans."
The only semblance of participation by the "Native" population
is to be found in the rudimentary functions of the "Native" head-
men 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 administration under tribal laws and
customs still permitted to the "Natives" in the Native Reserves
outside the Police Zone.Ashas been pointed out, even this shadowy
participation is kept subject to complete, comprehensive and per-
vasive control by "Europeans."
(iii) The Mandatory has had, and continues to have, the duty
to safeguard and promote "totheutmost"the "material and moral
well-being",the "socialprogress"and development of the people
of the Territory, including more particularly security of such
persons and their protection against arbitrary mistreatment and
abuse; equal rights and opportunities for such perçons in respect
of home and residence, and their just and non-discriminatory
treatment; protection of basic human rights and fundamental MEMORIAL OF ETHIOPIA 1~5
freedoms of such persons; and the social development of such
persons, based upon self-respect and civilized recognition of their
worth and dignity as human beings. Nevertheless, in direct viol-
ation ofsuch duty:

(a) The Mandatory has established a regime in which in a variety
of situations and under a variety of circumstances, hereinabove
more particularly descnbed, "Natives" within the Temtory of
any warrant.frica are subject to arbitrary arrest, often without

(b) The Mandatory permits powers of arrest to be exercised by
designated persons at their largely uncontrolled discretion.
(c) The Mandatory has not allowed to "Natives" even a faint
approximation of the degree of freedom of choice permitted to
"Europeans" concerning where they may reside within the Terri-
tory. On the contrary, "Natives" are confined within sharply
defined areas and places under prescribed conditions. The pattern
of restrictions upon the residence of "Natives"is uniformly arbi-
trary and discriminatory; it is conceived and executed to give
increasinglyintensive effectto the dominating principle ofapartheid.
(d) The Mandatory has effectivelyand almost completely denied
liberty of movement to the "Native" population ofthe Temtory, ina
largenumber andvariety ofways hereinabove moreparticularly des-
cribed. The U.N. Comrnittee on South West Africa, in rendering its
reports to the Fourteenth Sessionof the General Assembly in1959,
summed up the situation by stressing the "intricate system by
which the freemovement of the 'Non-European' population and the
'Native'population in particular is restncted and controlled in the
Temtory of South West Africa." The Cornmittee emphasized that
there had been no indication of any relaxation in the system of
control dunng 1959 T.he Committee went on to express "its grave
concern over the unwarranted restrictions, based on race or colour,
placed on the freedom of movement of the 'Native' population of
South West Africa, who form the overwhelrning majority of the
total population" of the Temtory.
(e) In the entire complex of provisions for the arbitrary arrest
of "Natives" and tight restrictions upon their residence amove-
ment, the Mandatory has given consideration solely to the conve-
nience or advantage of the Mandatory government of the "Euro-
pean" citizens and residents of the Temtory. 9
(iv) The Mandatory haç had, and continues to have, the duty
to safeguard and promote "tothe ~tmost"the "materid and moral
well-being,"the "social progress" and the development of the
people of the Territory, including more particularly the edzlcational
advancementof such persons. Neverthelas, in direct violation
of such duty :
(a) The Mandatory is responsible for a system of education in
which a far smaller fraction of the "Native" children within the 166 SOUTH WEST AFRICA

Territory receive any schoolingthan in the case of the "European"
children of the Territory.
(b) The Mandatory is responsible for a system of education in
which to the extent that "Native" children are educated at al1
within the Temtory , almost none receive any education beyond
"Standard VI," representing the completion of the eighth school
year, and the majority do not receive education beyond "Standard
III," representing the completion of the fifth school year.
(c) The Rlandatory has failed to provide any facilities forhigh-
school education for "Natives" within the Territory, apart from a
high school at Augustineum.
(d) The Mandatory has provided for the "fiative" population
no access to higher education or to any significant form of voca-
tional education within the Temtory, apart from possibilities for
training as teachers within the Temtory.

(e) While the Mandatory has made available to "Natives" some
possibility for higher education and vocational education in the
Union,the possibilities are very meagre, and the pursuit of even
these meagre possibilities is discouraged by the Mandatory.
(f) Even in the few occupations for which "Natives" do have
some access to opportunities for vocational or technical training
(i.e.-as teachers, nurses, engineering assistants), the Mandatory
imposes upon "Natives" who enter such occupations lower scales
of compensation than are available to "Europeans", sharply cur-
tailed spheres of activity, and a publicly proclaimed inferiority of
status.
(g) The Mandatory has established a system of education in
which, despite the overivhelming preponderance of "Natives"
ivithin the population of the Territory, the total of expenditures
for the education of "Natives" within the Territory is only a smaii
fraction of the total of expenditures for the education of "Euro-
peans" within the Territory.

FINAL CONCLUSION
The meaning of the Mandatory's conduct revealed in the fore-
going factual record is clear, as is the meaning of Article 2 of the
Mandate in this case. When thelatter is applied to the former, the
legal consequence is clear and unmistakable. It is an understate-
O ment to Say that the Mandatory has violated its obligations. In
its administration of the Mandate over the temtory of South West
Africa, the Union, as Mandatory, has knowingly and deliberately
violated the letter and spirit of the second paragraph of Article 2
of the Mandate and of Article 22 of the Covenant upon which
Article 2 of the Mandate was based. In respect of its obligations
thereunder, there is a polar disparity between the duties of the
Union under the foregoingprovision of the Mandate and its conduct
in the administration thereof. MEMORIALOF ETHIOPIA 167

SUPPLEMENTAL MATERIAL IN REGARD TO THE
ALLEGED VIOLATION BY THE UNION OF ARTICLE z
OF THE MANDATE

Q
Chapter V ofthisMernorial sets out facts establishing the Union's
violation of itsduty to "promote to the utrnost the material and
moral well-being and the social progress"of the inhabitants of the
Territory. These facts have been derived principally from official
sources,including laws, proclamations, and administrative decreeç
in force in the TerritoryAs çtated in Chapter V, the interlocking

and all pervasive nature of the above laws, proclamations and
decrees establish their regularandsyçtematic implementation in
the Territory. The rnanner in which the daily liveç of inhabitants
are affected thereby is illustrated in petitions received by the
United Nations Cornmittee on South West Afnca from various per-
sans and organizations inthe Territory.
The Union has failed andrefused to furnish information concern-
ing itç administration of the Temtory. Hence, the Cornmittee
on South West Africa and the Applicant, as well, are constrained
to gather information from other sources,including petitions.
The cumulative effect and thnist of the petitions, receivfrom
su wide a variety of independent sources, reinfocces, general,the
factual allegations contained in ChapterV of thisMernorial. Their
probable accuracy in substance is confirmed by the fact that many
incidents recounted in the petitions are predictableconsequences
of the pattern of the Union's administration in the TerI-itory,
more fully deçcribed in Chapter V.
The following extracts from petitions received by the Cornmittee
on South West Africa are, accordingly,submitted to the Court as
typicd and illustrative applicationof the Union's policies inthe
Territory.

I. Extract from a communication dated 30 October, 1956,frorn
Hosea Kutako to the Chairman of the Ad HocCommittee on South
WestAfrica, printed in the1857 Report of the Committee on South
West Africa, at page 34:
r

'V.N. Gen. Ass Off. Rec. 1Sess.Supp, No. r(A/3626(rg57L168 çoUTn WEST AFRICA
"We also wish to inform you that the ChiefNAtiveCommissiones
of South West Africa, Mr.R. J. Aiien, held a meeting with the
Herero Chief and Headmen in September, 1956 ,n the Aminuis
Native Reserve in which he informed us that a portion of Aminuis
Native Reserve was to be given to the Europan farmers and
that a small part of the land cailed Kuridora to the South East
of Aminuis Native Resesve was ta be given to the Hereros in
exchange for theit land which was to be given to the Europeans.
Kuridora lies between Aminuis Native Reserve and Bechuana-
land Proteçtorate and is uninhabited.
We said to MY. Allen that Our first Native Reserve was at
Augeikas near Windhoek and the Governrnent rernoved us from
it in order to give the land to the Europeans.were then given
Otjirnbandona frorn which we were removed in order to make
room for European farmers.Finally wewere given AminuisNative
Reserve with the assurance that it would be our permanent home.
We also rernindedMr. Allenthat Dr.H. F. Verwoerd, the South
African Minister of Native Affairs, haiven us assurance in the
presence of MT.Allen during his South $est touin Aogust, 1955
at Okakarara Native Reserve, that we would not be deprived 04
Our present Native reserves.
We said that we would objeçt to the removal and added that
the previous removals causedmuchhardçhips and were responsible
for the losç of much of Our livestock and other property.
Mr. Allen in reply said that he would write to Dr. Verwoerd
and that we would be infomed about the rnatter in about two
weeks' time.
Owing to the fact that AminuisNative Reserve istoo small for
itç inhabitantwe had asked the Government on a pteviousoccasion
to annex Kuridora to Aminuis Native Reserve, but the request
was refused. Tl-teGovernrnent replied thit would be givento
the European farmers,
We concludedour meeting with the Chief Native Cornmissioner
by saying to him that the Government should keep Kuridora for
European farrners andwe would keep our Reserve and would not
exMr. Eric Louw, the South Africa Minister of Extemal Affairs
who will lead the South African delegation to the United Nations,
visited South West Africa in September 1956, with a view to
obtain informations about the conditions in this tenitory but did
notmeet the Herero Chief and Headmen which means that he is
coming ta the United Nations being unconscious of our views."

z, Extract from a communicationdated ICIJanuary, 1958 rom
Johannes Dausab etal to the Secretary-Generalof the United
Nations,pnnted inthe xg58Reportof theCornmitteeonSouthWest
Africa at page 36:'

"For many years we have ask the administration to improve
our water supply for the pusposes of agriculture and faming.
We werepven assurances that this problem.will be attended
to vety saon.Last time when suchpromise was made wasin 1954.
U.N. Gen.Ass.Off, Rec. 13SesçSupp. Na.r2(.4/3ga6(rg~8). MEMORIALOF ETHIOPIA 1~9

The administration wiil ve us tools to make dams the field for
irrigation and farming\$e must supply free labor, the Government
will give tools and meali-meal, there wiil be no payrnent, because
the system is for our own interest. Al1that was done to us is that
the existing agricultural lands have been reduced."

3. Extract from a communication dated 31July, 1958, from
Joh. Dausab et al to the United Nations, printed in the 1958 Report
of theComrnittee on SouthWest Africa at page 45: l
"Because the 'Nation' has strengthened his hands Dr. Verwoerd,
the minister of the Union Department of Native Affairs sent his
secretary Dr. Eiselen to inform the officers of the SWA's ad-
ministration to effectour removal from Hoachanas. Sirs, the General
Assembly adopted the resolution that no land inhabited by 'Non-
Europeans' whether or not such land has been set aside as Native'
reserve land, be alienated solely for the benefit of the 'European'
settler community, and that immediate steps be initiated to ensure
that the 'Non-European' majority shall not be deprived of the
land necessary for their present and future needs, based on the
natural growth of the population and on the principle fuil parti-
cipation by the 'Non-European' population inthe economicdevel-
opment of the Temtory ...Sirs, in defiance of this resolution of
the twelfth session of the United Nations General Assembly Dr.
Verwoerd is continuing with the treats against us... We have been
for the purpose of grave yard."it useless land which is just good
1
4. Extract from a communication dated 27 November, 1957,
from Hosea Kutako to the Secretary-General of the United Nations,
printed in the 1958 report of the Comrnittee on South West Afnca

at page 49 :l
"When we were forcibly removed from Our lands to the present
Native Reserves to make room for European settlement, the
Govemment bumed down our housesrendering the people homeless
and cut off the water supply...
The average person inthe reserve ?ossesses 15 head ofcattleand
about 20 goats with which he maintains a faniily and is not aliowed
to have more than three oxen. The cultivation of crops for human
consumption is practically non existent, the Government does not
because it is even not enou h for the.live stock. The resu t is that
the people live on milk on'i, but even the milk is not sufficient
to maintain a family because they have to sel1cream to get money
with which to buy clothing.
The water is so scarce in the reserves that many people live 6
to 7 miles away from the water. which they carry on their heads
in petrol tins or on donkeys to their places of residence. It is
sometimes muddy and undrinkable.I7O SOUTH WEST AFRICA
5. Extract from a communication dated 13 June, 1957 ,rom
Nghuwo Jepongo to the Secretary-General of the United Nations,
printed in the1958 Report of the Committee on South West Africa
at page 59 :l

"Conditionsof lifefor OvamboNative labour in South West Africa
are a scandal. There is agrave system of forcedlabour. The Majority
of Ovambo recruits for S.W.A.N.L.A. are forced to go somewhere
they do not want. Eventually, they sneak away."
6. Extract from a communication dated 3 August, 1957 from

Mr. Toivo Herman Ja Toivo and eighty other Ovambo, to the
Chairman of the Trusteeship Council, pnnted in the 1958 Report of
the Committee on South West Afnca at page 61: l
"We also demand the abolition of the compulsory 'Contract
Systern' through which Our young men are employed. Contracts
should only be taken voluntarily and every young man must be
free to choose and serve his master as long as they understand
each other. Our mamed women folk must be allowed to accompany
their husbands to their place of work if they wish to do so; the
unmarried women must be permitted to enter the Police Zone
and look for work if they like to."

7. Extract from a communication dated 30 September, 1958,
from J. G. A. Diergaardt et alto the United Nations, pnnted in'
the 1959 Report of the Comrnittee onSouth West Afnca at page 61:2,
"Although the railway and the Administration's roads run
. through a large part of Our territory, ail the jobs on the railway
and the roads are reserved for the whites.
With regard to industrial development, there ha likewise been
nothing at al1done for us. No factories are being opened although
other Govemments are doing this for people in Our circumstances.
The Union Govemment, however, does not think along these lines.
Our temtory exists only to make the whites rich."

I. Extract from a communication dated 25 February, 1959,
from the Rev. Markus Kooper to the United Nations, printed in the
1959 Report of the Committee on South West Africa at page 49:
"Sirs, what is true of Hoachanas is also true of the whole of
SWA as far as the non-whites are concerned. In the phenomenon
of Hoachanas it has come to light that the administration of SWA
or the Union Govemment while extending the franchise right to
the 18 years old whites is basing slavish conception of aliowing
only the old non-white people who were adults on the German

lIbid.
U.N. Gen. Ass. Off.Rec. SessSupp. No.12(A/.+I~I) (1959).
Ibid. BIEMORIAL OF ETHIOPIA 17.X
time to have a say although of no value in the matters of the
ten-itory, and regard athose whowere chiidren at Gerrnan the
asnon-oriaals, strangers and their ptoperty which they brought
from the Union and refused them any voice in the country
of theis birth. The Uniongovernrnent or the adminkL-ation
of SWAiswanting fromus the non-whites to acceptthisdestructive
principle or olicy as self-evident and correct. Another faof this
unofficial po ic1s that it bnngs us back to where we was before
roo years. It ah weakened our power while the voting powers
of the whiteçare increased."

2. Extract from a communication dated 14 September, 1960,
from Chzef Hosea Kutako to the Secretary-GeneraE, printed in
Conference Room Paper No. VI1/85 of the Cornmittee on South
West Africa :

"lnorder to ençure that political xights remainin the hands of
the European minority, dl Africans and aii dark-skinnedpeople
are kept voteleçs during their life time and they have no repre-
sentatives inal1the councils ofthe çtate."

3. Extract from a communication dated z September, 1954.
from Hosea Kutako etal to the Secretary-Generd, printed in the
rg55Reportof the Cornmitteeon SouthWest Africa at page 46: '
"ASstated in our previous petitions to the United Nations, the
African people of South West Africa are still not participating in
the political development of the territory. The Government of the
country Is reserved for people of European deçcent. The entire
indigenous population is living in a state of poverty as a result
of the loss of their lands and low wages."

4. Extract from a communication dated 20 June, 1958, £rom
Johannes Dausab et d to the Secretary-Genetal, printed in the
1958 Reportof the Cornmittee on SouthWestAfrica at pages 39,40 :a
"It is thus our firmstandpoint as theindigenous inhabitantsof
South West Africa, who, totallyhave no mice in the government
of Our country, besides which there isno country in the whok
wide world which we rightfuIlcan cal1to be ours.that the United
Nations Organization is the onliest body dignified and comptent
enough with her actually practiçed 'Motto' ofPEACE, JUSTICE and
SECURITY for al1 towhom we, the helpless, the voiceless, the out-
casts and sevexelyoppressed indigenour inhabitants of SWA cari
flightfor succour...
Sirs we have totally no representation, equalor unequa1 in
the government of our country. The post Chief Native Cornm--
sioner, Welfare Officer, Location Superintendents serves no çatis-
factory purpuses.These are the moçt deadly offices for us, and
no matter what any other wbte rnay say about that, it is tme.
If the white man can be represented by the white people in the
government of the country how is it impossible for the ma-wkite

lU.N. Gen. As. OH.IRec rth Sess.Supp.No. 12 (Alzgr3(1955).
U.N. Gen. As. OffRM. 13thSess.Supp.No. rz (Al3906) (r958). MEMORIAL OF ETHIOPIA 173
such as the whites in South West Africa, professing education
and superiority, living in a land where ringing beils call child and
parent to the church of God, a land where Bibles are read and
Gospeltruths are spoken, and where courts of justice are presumed
to exist, we say that with al1these advantages on their side, they
can and are making war u on us the defenceless poor blacks of
South West Africa as Mr. A en has so strictly express the word
at Hoachanas 16th 'April 1956. 'YOURCHILDREN SHALL LIVE AS
BIRDS AND WILL HAVE NO FIXED ABODE.'The white people know
we have no money. no Road Motor Services, no Railroads, no
injustice is place upon us. They know that we the non-whitef
people of South West Afnca acknowledge them as Our superiors
throughout, by virtue of their education and advantages. The
acknowledgementwhichthey have abused. Wehave been authorized
by the horrible actions of the white people to write petitions to
UNO, yet the white people now seek how they will torture us
more than before, so if we be killed in this campaign, we may
have no opprtunity any more of telling the United Nations
Organization about the blackman's condition of living as it really
exists in this country of ours."
2. Extract from a statement of Chief Hosea Kutako and
Messrs. Chr. Tzitega, E. Kauraisa, F. Katimo, L. Muriambihu,
and L. Koamba, forwarded to the Chairman of the Committee
on South West Afnca by the Reverend Michael Scott in a com-
munication dated 22 July, 1958, pnnted in the 1958 Report of
the Committee on South West Africa at page 54: '
"The Windhoek and Okahandja locations are to be removed to
another site. We have been refusing to be moved. We Say we
would prefer the existing locations to be irnproved on their present
sites rather than the opulation removed further away from their
work. Further the ffowing are some of the regulations that have
been drawn up by the Govemment to control ail the locations
in the towns of South West Africa.
One regulation says that the who- area of the location must
be fenced with only one gate leading to the town. When you go
policeman at theatate. Similarly when a manbcomes back from
the town into the ocation the policeman at the gate must search
through al1that he has brought from the town before he is allowed
to enter the location. .In order to leave the location everyone must
produce a permit. Also when they retum they must produce
permits. The police at the gate have the authority to give the
permit which must specify the reasons for leaving the location.or
entering it from the tom. When the location is finished king
built any person who wishes to go and stay there must make a
not so wP -to-do wili not be allbwed to enter the location to reside
there. They will be obliged to retum to thReserves or else to
look for work on the white man's farms. Only those people wdi

'Ibid.'74 SOUTH WEST AFRICA

be aiiowed to reside in Windhoek location who have been there
coThese locations wiil be built in separate sections for the Hereros,
Narnas, Darnaras, Ovamboes. When a person wishes to go from
the Ovambo to the Herero section he must apply for a permit
and state the purpose of his visit. The houses that are to be built
by the Administration must be paid for before the seventh of each
month, the rent wiilbe £1.18. d. for each house. Those who fail
to pay wiil be arrested. TheP ouse is about twenty feet square
divided into four equal-sized rooms. It has only one door and has
one window at the front and one at the back. There are no doors
between the rooms only openings. They are dangerous in con-
struction being made of prefabricated bricks with no cement
between the bricks. There is no kitchen but permits may be given
to build a kitchen alongside the house or to use an open fire. No
one is aiiowed to go and visit the location that is being built.
There, are no bathrooms. The distance between one house and
raoms wiil be built for each section. Those whware to be allowed
to stay in these houses are a man and his wife and minor children
up to eighteen years. Those who are over eighteen years must be
housed in compounds. There wiil be separate com ounds for male
and female in each section. These compounds wiP consist of long
blocks in rows with one room and one door-for each unmarried
person.
Ali visitors to anyone living in a location must obtain a permit
hm the Superintendent of the location.
Anyone living in the location may not pay a.visit out of the
location for more than thirty days. Tf those thirty days expire
before he returns his house does not belong to hirn any more.
Proviçion is being made for those wishing to buildtheir own
houses in the same location. Anyone wishing to do so must be a
man over twenty-one years. He must make application to the
Superintendent. He must be a man who has been resident in
his application has been.approved by the Superintendent he must
bring an architectural plan of the building. He must get a health
inspecter and an engineer to survey the plot. When buying the
materials the Superintendent will direct where these materials are
to be bought. They may not be bou ht at the cheapest place.
The house must then be built by a cpa&hedbuilder and carpenter.
The Superintendent will provide a Supervisor to overlook the work.
This will be someone of his choice but he must be paid by the
person building the house a sum equal to 5% of the total cost
of the building. The value of the house must be not less than
£250.
In the application the reasons must be given why you want to
build this house yourself at your own expense. When it is built
only the house is yours not the plot on which it stands. Except
for building a kitchen if a permit is granted nothing can be done
on the land outside the house. The rent of this plot of land will
will belong to the person who has buiit it for thirty years only. MEMORIAL OF ETHIOPIA I75

The Government has said that the Group Areas Act is not yet
put into operation in South West Africa. But the way in which
this location has been planned is evidence that this policy is to
be applied in South West Africa by whatever name it is described
in law. We are afraid that the building of this location will bring
new restrictions and oppression upon the people in the towns. For
instance one of the regulations lays down that whenever more than
asked to remain so that he may know what is being discuçsed."nd

3. Extract from the statement cited in paragraph 2 immediately
above :

"'1 was working in a town. One day 1 got ill. My mother was
in the Reserve but she cannot come to the town without special
permission. This special pass must come from the Location Super-
intendent in the town. The Welfare Officer in the town cannot
issue such a Pas. It is thus very difficult for us for there is no-one
to go for this special Pass and wait at the Superintendent's office.
My mother may have been told by someone that 1 am iil but there
is nothing she can do to secure this pass from the Welfare Officer
in the Reserve.' Passes for people working in Windhoek must be
got from masters if the journey is for a trial or for the purpose
of paying house rent etc. If your master allows you to go to a
burial without giving you a written pass you will be arrested.
The penalty for this is a 63. fine or more or fourteen days to one
month in gaol. If you are il1and are found in the location without
a permit from your master or doctor you are arrested. Pass carrying
is becoming ever harder on us because special passes are required
for so many different things. We are entirely against this pass
system."
4. Extract from a communication dated 17 October, 1957 rom

Mrs. K,athe von Lobenfelder, Outjo, to the Trusteeship Council,
pnnted inthe 1958 Report of the Committee on South West Afnca,
at page 64 :l
"1am turning to you in desperation. 1 was born in South West
Africa on 31-October 1901.My father was the German Protectorate
Force Officer Count von Stillfried. My mother was a so-cded
half-caste. 1 have two sons both of .whom 1 sent to Germany
in 1922to enable them to visit a better school. During the %CO@
World War both of them were forced to become soldiers despite
their anti-nazi attitude. They became officers. Both of them held
good jobs after the war, but, owing to political hatred, lost them.
Being ili and owning a .farm 1 would like to bring my second son
here to help me. For the past two years we have been corresponding
with ali kinds of officiais. Sworn depositions were required in
Pretoria and in Germany. At least twenty to thirty letters were
exchanged with the Government in Pretoria, S.A., Windhoek,
S.W.A., and Hamburg. Now my son informs me that he bas

Ibid.17~ SOUTH WEST AFRICA
received word from Pretoria to the effect that his entry permit
has been denied. On inquiry for reasons for this action, reasons
were denied. Getting to the bottom of this, 1 only heard Apart-
heid!!! 1s there outside of South Africa another country where
entry into their country of birth is denied to children who were
sent abroad for a better education in view of the inadequate
facilities at home.."

5. Extract from a communication dated 30 August, 1960, from
Mr. S. Mifima, Chairman, South West African People's Organization,
Cape Town, to the Committee on South West Africa, printed in
Conference Room Paper No. VI1/84,1g September 1960, Comrnittee
on South West Africa, Seventh Session:

"Such things as banishments, deportations and refusal of permits
to seek work are the order of the day.
Our people have been deported from place to place and banished
from their are* to forests hundreds of miles away from their
families and friends and there is no hope of seeing them any more
nor is there any means of making a livelihood.
On 5th August, 1960, Mr. Louis Nelengani, vice-president of
S.W.A.P.O. was deported from Windhoek to Ovamboland reserve;
he has got a wife and baby of six months as well as a home in
Windhoek; al1 is broken .up.
Messrs. J. Kashikliku and Herman Ja Toivo are kept under
house arrest at the chief's kraal.
The authorities in S.W.A. under the government of South Africa
deal harshly with anybody who opposes apartheid and racialism.
Mr.Tuhadeleni to a lonelyspot between Ovamboland and Okavango
reserve known as a political prison camp; nobody is allowed to
see them, not even their wives and children.
Early this year Mr. Paroly, an employee of C.D.M., Oranjemund,
was banished from his fellow workers in the compound to a lonely
spot four miles from his work, place and fnends. He is living alone
and is not allowed to talk to anyone at ail until his 18 month
contract has expired; he will then be deported to Ovamboland."

6. Extract from a communication dated 3 August, 1960, from
South West Africa Peoples Organization, Windhoek, South West
Africa, to the Committee on South West Africa, printed in Conference
Room Paper No. VII/76, 30 August, 1960, Committee on South

West Africa, Seventh Session :
"Today, the 3rd day .of August, 1960, Our Vice-President, Mr.
Louis Nelengani, was given 24 hours to leave Windhoek, for
Ovamboland, because he is the leader of the organisation being
a opposition to the Union Govemment.
The reason for Mr. Louis Nelengani's deportation was, that he
sent a petition to the United Nations Organisation, forwarded a
cow to the'Union Govemment, which applys to 'rule XXXI of
the rules of procedure of the committee on South West Africa'! MEMORIAL OF ETHIOPIA I77

When the Union Government received his letter, he in return
notified the Native Commissioner to DEPORT Mr. Nelengani as
soon as possible."

Enclosure totheAbove Letter

Extractfrom The Windhoek Advertiser, 4 August 1960

ALL THIS AND BANNING TOO IN TROUBLED TIMES

OnlyOneSide

"Amid al1 the problems which are facing South West Africa at
the moment, a Native now alleges that he has been banned from
the country.
Knowing that such an incident, if correct, will be exploited by
the United Nations, the 'Advertiser' tried yesterday to obtain the
true facts in order that the outside world might see both sides of
the case. This is what,.happened:
The ViCe-President of the Ovamboland People's Organisation,
Louis Nelengani, alleged that he had been told by the Assistant
Native Commissioner in Windhoek, Mr. W. S. G. Malherbe, that
he had been banished to the Northem border of Ovamboland.
In an interview, Louis Nelengani said that he had been told by
Mr. Malherbe that he would have to leave Windhoek by Friday,
when he would be escorted to the Angola side of Ovamboland,
despite the fact that he claims that he was born on the South
West side of Ovamboland.

Allegation

He said that he had come to work in Windhoek in 1957 ,nd
had absolutely no connections with Angola. He alleged that when
he was caiied.in by Mr. Malherbe, he was simply told: 'You have
worked against us-you have misused your rights,and for these
reasons you are being banned from South West.'

Yesterday a staff reporter of the 'Advertiser' called on Mr.
Maiherbe in his office at the Magistrate's Court, for the purpose
of asking him to explain or deny the allegation.
, When the reporter mentioned the name Louis Nelengani, hlr.
Malherbe jumped up from his chair, threw a ruler on to his desk,
and said: '1 am not prepared to discuss this matter. You can go
and see the Chief Native Commissioner.'

NothingKnown

Later in the day, the reporter called on the Native Affairs
Information Officer, Mr. Grobler, with the purpose of verifying
his information.17~ SOUTH WEST AFRICA
Ail Mr.Grobler could say, was: '1am sorry, but 1 know nothing
about this matter.'

Busy
The 'Advertiser' tried to contact the Administyator, MD. Vil-
joen, by telephone, but he was busy.
The 'Advertiser' believes that Native organisations have already
made their own report to the United Nations."

I. Extract from the statement cited in paragraph 2 of Section D
above :
"Many children of parents who are working on European Farms
do not attend schools because there are no hostelsin neighbouring
towns where they can be looked after. Such children cannot be
educated because they have no relatives and there are no hostels
in the neighbouring towns. Thus it is that many of Ourchildren get
no education and so are forced to become manual labourers on
contract to white employers."

2. Extract from a communication dated 22 November, 1957,
from S.Shoombe and IOO other Ovambo to the Secretary-Geneïal

of the United Nations, printed in the 1958 Report of the Com-
mittee on South West Afnca, at page 61:l
"There are no High schools or secondary schools in the whole
of Ovamboland. The teachers are of a very poor quality because
they are taught in Primary schoolswhich give tuition upto Std. III.
The chiefs and Headmen are iliiterate and are appointed by the
Government. They receive presents from the Government such as
clothing, tobacco, sugar and liquor as a means of bribing them
to allow their young men to work as unskilled labourers for the
Europeans."

3. Extract from a communication dated November 1953 from
Miss Margery F. Perham (Fellow of Nuffield College), The Afnca
Protectorates Trust, to the Chairman of the Ad Hoc Committee on
South West Africa, pnnted in the 1954 Report of the Committee on
South West Africa, at page 31:

"May 1 draw the attention of your Committee to a case affecting ,
a young Herero in South West Africa. As you know, the South .-
African Government, under the terms of the Mandate, is pledged
to administer the country to promote the social betterment of the
inhabitants and this case would seem to indicate a violation of
that pledge.

I.At the beginning of1953the Africa Protectorate Trust notified
this young man. Berthold Himumuine, that a scholarship was being

l U.N.Gen.As.Off. Rec.9thSes..Supp. No.14 (A/2666(1954). >,-*
MEMORIAS OF ETHEOPIA I79

provideclfor him to study in this country, Soonafter, on 23 January
1953 , r. Jacks,the Director of the Department of Education,
Oxford Universit , wmte to Berthold Himumuine to say that a
place had been ound for him and that the necessary financial
support had been ensured. He urged that Mr. Himurnuine should
arriveat Oxford at the end of April.
2. Mr. Himumuine then applied for a passport and des ite
repeated atternptsto get a ûm reply, was not to~ untii 4 Ray
that the passport had been refused. No reasonwas given for th&
refusal. A subsequent lettet from Hirnumuine mentioned that the
Secretary for South West Africa had been quoted in the local
press as saying that the granting of passports rested with the
Union Government, while the Miniçter for the Interior had aiso
been quoted assaying that he knew nothing of the application.
3. Further representations were made from Oxford University
to the South African High C~mrnissioner in July and not until
rz November was a firrnreply received which simply reaffimed
the South African Government's decision to refuse a passport to
Berthold Himumuine. No reason was given.

4. The facilitles for higher education in South West Afriare
non-existent. An inquiry madeto the South Africa Department of
Education as to the nurnher of Africans there who have passed
the information, but 1 believe that only three or four Africans
have in fact passedthis examination in South West Africa.Berthold
Hirnumuinewas one of the dew to do so, having taken a cor-
respondence course. Himumuine then became a teaçher at St.Bar-
nabaç School in Windhoek Location and in Iggr was made head-
master of the school. He taughchildrenin the moming and adults
in the evening and was also trying to obtain his Bachelor of Arts
degree by correspondence courseat the time when the scholarship
was offered to hirn. The members of the Trust felt was greatly
deservingof assistance in furtheringeducation, and 1understand
hi5chief, Hosea Kutako, has recornmended the young man.

shows1 thatheeis a man of perfectly good character and, though
1 should not regard this as an essential qualification, he hapgens
to IN intereçted in teaching rather than in politics. It seetos
many of us at Oxford a grave denial of human Ereedomand the
rights of an individual of a Mandated Territorythat this excellent
opportunity for further education should be denied to this young
man, when hiç people sogreatly need ducational leadership and
memhrs of their race who have had contact with the widerworld.
T hope very much that you will take this up at the United Nations
when the South West Afriça question is raid.

(SigltedJMARGERY PERWAM

Cornmittee that maywobedset up as a result of the recent debates
on South West Afnca.180 SOUTH WEST AFRICA
E~cZosure totheabowe lelEer.

l'o Whom It May Concer~
Berthold Samuel Himurnuine has been associated with the
St. Rarnabas Mission çchool since 1936 both as a pupil and later
as a teacher; taking over the post of Headmaçter in 1 51.
He passed the Native Teachers Certificate also hisatriculation
Examination and in 1952 wrote three subjects for his Bachelor
of Arts examination.
He ha at al1times been courteous and diligent in al1his work
and concerned alsowith the welfare of his fellows inasmuch ashe
devoted his spare time to evening classes for them.
1 have great pleasure in witnessing to his capabilities and am
confidentthat he will devote hiwhole time and energy towhatever
undertaking he may be given.

Rector of St.George'sCathedra1
P. O. Box 67 Windhoek,
South West Africa
13January 1953" MEhfORIAL OF ETHEOPIA 181

ALLEGED VIOLATIONS BY THE UNION OF
ARTICLE 4 OF THE MANDATE

Article 4of the Mandate provideç as followç:

'<-rilemilitary training othe natives, otherwise than for pur-
poses of internal policeand the local defence of the territory,
shall be prohibited. Furthemore, no military or naval bases shall
beestablished or fortifications ereçted in the territory."
Armed installations not related to police protection or internal
secunty fa11within the class of "military bases" os "fortifications"
and are therefore prohibited by Article 4 of the Mandate. Façilities

for police or internal security purposes are perrnitted; but not
military bases. The type of facllityits location, armament, equip-
ment, organization and place in the Union's administrative her-
archy and chain of command determine whether it iç amilitarybase
or fortification.

The Union does not svbmit reports to the United Nations os
divulge any officia1information on matters within the purviewof
Article 4 of the Mandate. The Committee on South West Afnca
has, however, noted increased military activity in the Territory,
including the staging of aerial maneuvers, described as a large-scale
exercise by the Union Department of Defence, in the Eastern
Caprivi Zipfel during August 1959.'
The Applicant has not been able to make an independent venfica-
tion of the existence or nonexistence of "bases" or "fottificationç"
in the Tenitory, but on the basis of staternents contained in the

"Report of the Committee on South West Africa" for the years
rg5g ' and 1960, t allegas upon information and belielthat the
Union maintains three "military bases" withn the Temitory.
A regiment, called the "Regirnent Windhoek", is çtationed at
Windhoek and is part of the South African Arrnoured Corps of the

Report oftheCommittee onSouthWest AfricaGen.Ass Off. Rec. 15Sess..
Supp. No. 12 at 30, para238 (A14464)(1960).
a Report of the Cornmittee on South West AGen.Asç.Off. Rec. 14Sess.,
S~PP. No. 12 (A14191) (1959).
* Report othe Cornmittee on SouWest Africa, Gen. Ass.Off. Rec.Sess.,
Supp. No rz (Al44641(rgdo).I82 SOUTH WEST AFRICA

Citizens Force, which foms an integral part of the South African
Defence Force.Wn December I, 1959 it consistedof 16 officerand
205 other ranks.'
The 1959 Committee Report çtates that the Union Department
of Defence maintains a military landing ground inthe Swakopmund
District of South West Afriçan2Access to the landing ground has
been prohibited sinçe October 3, 1958, except to persons with a

permit from the Department of Defence.=
Sources citedinthe 1960 Committee Report indicate the existence
of at least one military facilityin or near the Kaokoveld in the
part of the Territory :
"From other information supplied by the Union Government
to the Union House of Assembly in 1960, the former Minister of
Defence made a 'visit to a military camp during reconnaissances
in the Kaokoveld' in 1957 .he Kaokoveld is a 'Native' reserve
in the northwesternrnost part of South West Africa."
"According to a letter dated 28 June 1960receivedby Mr. Sam
Nujoma, a çopy of which he made available to the Committee,
the Union Government was stated to be carrying on military
operations between the Junene river,in the north of the Kaoko-
veld, and Ombandja. An ençlosednewspaperclippingfrom a local
Afrikaansnewspaper, otherwiseunidentified, stated thatemgloyees
workingon the construction of a canal in Ovamboland disclosed
that there was a rnilitary air base on the border. The canal is
under construction in the northwestern part of Ovamboland, to
extend to the Kunene river, bordering the Kaokoveld.'" 4

The "military camp" referred to in the firstparagraph of the
above quotation imrnediately above may or may not be identical
with the "military air base" mmentionedin the second paragraph
of the quotation.

C. LEGAZCONCLUSIONS

The "Regiment Windhoek" is partof an armoured corps and
under thecommand of the South African Defence Force. Armoured
corps are not normally used for police protection or internal
security purposes. That the regiment is part of a conventional
military organization also indicates that its purposeis not police
protection or intemal security. The regiment is apparently part af
the conventional rnilitary forces of the Union. The supply and
maintenancefacilities of the regiment, together with the vehicles
and material of the regiment itçelf wouid apparently constitute
what iscomrnonly known as a "military base."

' Id.at 31,para. 241.
ReportoftheCornmitteoenSouth WestAfsicaGen.Ass.Off.Rec.14th Sess.,
Supp. Na. rz atrz,para. 85 (R141gr) (1959).
' ReportoftheCornmittee on South WestAfrica, Gen.AOffRec. 15th Sess.,
Sum. Ho. rzat 30,para. 239 (A14464) (1960).
' Id., a30,para.240. .,
MEMORIAE OF ETHIOPIA 183

The Committee on South West Africa made the following state-
ment concerning the "Regiment Windhoek" :

"The Committee can understand the necessity for posting a
military regiment in the Mandated Territory in December 1939,
with Artideitqeof the Mandate."nclle the present military measures

Likewise, the dtary landing field at Swakopmund is apparently
not intended for police or internal security use, since rnilitaryair-
planes are not normally used for police orinternal seçurity purposes.
The "military camp'* andlor "military airbase" in the Kaokaveld
are apparently not rnaintained for police or internal security pur-
poses. A camp or airbase wouldnot be situated in aremote, sparsely

populated border area for policeor internal security purposes. If the
installation isan airbase, seasoning ofthe prior paragraph indicates
that itsnature and purpoçemust be purely military.

Id..at 3r, para.243.~84 SOUTH WEST AERLCA

ALLEGED VIOLATIONSBY THE UNION OF TTÇ OBLIGA-

TIONS AS STATED IN ARTICLE 2 OF THE MANDATEAND
ARTICLE 22 OF THE COVENANTOF THE LEAGUE OF
NATIONS

As deçcribed in Chapter II herein, the cornerstone ofthe Mandate
System is Article 22 of the Covenant of the League of Nations.
In the first paragraph of Article22,the fiindamental purpose behind
the Mandate Systern is setforth :

"To those colonies and territoriewhich as a consequence of the
laiewar have ceased to be under the sovereignty of the States
which formerly governed them and which are inhabited by peoples
notyet able tostand by themselves under thestrenuouç conditions
of the modern world, there should be applied the, princrplethat
the well-being and devclopment of such peoples form a çacred
trustof civilizatioand that securitieç for the performance of this
trust should be embodied inthis Covenant.
that the tutelageof suchipeoplesshotild be entmsted taradvance iç
nationswho by reason ai their resourceç, theiexperience or their
geographical y~sitioncan best undertake this responsibility, and
who are willing to accept it, and that this tutelage should be
exercisedby them asMandatories on behalf of the League."

From Article22 of the Covenant andfrom the fact that mandates
were conferred by the League, to be exercised on behalfoftheleague
as a "çacred trust", it isclear that mandateterritorieswere accorded
a distinct international status. One of the basic duties assumed by

Mandatories is toguide les5developed territories to a pointat which
the inhabitants thereof would becorne cornpetent to determine
their own future status. The Charter ofthe United Nations, adhered
to by the Union, sets forth this objective in Article 73 and that
Article, as pointed out in this Mernorial(pp. 105-xo6),is in pari
materza with the Mandate.
Itfollows that unilateral annexation or other unilateral processes
of incorporation of a rnandated territory by a mandatory are
inconsistent ulith a basic Iegal premise of the Mandate System.
The axiomatic nature of this principleis confirrned by the fact
that it haç been secognized and applied by al1Mandatory powers, MEMORIAL OF ETHIOPIA 185
with the sole and single exception of the Union. l The principle was
expressly affirmed in the II July, 1950 Advisory Opinion of the
Court, which stated, inter dia :

" ..twoprinciples[inthe establishmentof the Mandate System]
were consideredto be of paramount importance: the principle of
non-annexation and the principlethat the well-beingand develop-
ment ofsuch peoplesform 'a sacredtrust ofcivilization'." (Italics
added.)
The Mandate itself, in Article 2, provides that the "Mandatory
shali promote to the utmost the material and moral well-beingand
the social progress of the inhabitants of the temtory." As shown in
Chapter Vofthis Mernorial,such a duty must be construed toinclude
the obligation to provide for the political advancement of the in-
habitants of the Territory through rights of suffrage, progressively

increasing participation in the processes of government, develop-
ment tifself-government and free political institutions. Hence, on
the bases of the language of Article 2, as well asof Article 22 of the
Covenant, it followsthat unilateral incorporation or annexation of
the mandated temtory is repugnant to the terms of the Mandate.
The foregoing considerations, viz., the duty to refrain from
unilateral annexation andthe duty to advance the political maturity
of the Temtory's inhabitants so that they may ultimately exercise
self-determination, form the framework for construing the Mandate
terms as to the "full power of administration and legislation over
the temtory ... asan integral portion ofthe Union of South Africa,
and [that the Union] may apply the laws of the Union of South
Africato the temtory, subject to such localmodificationsas circum-
stances may I rquire."
The phrase "integral part" gives to the Union no licence to
take unilateral action regarding the Temtory, if such action
amounts to de factoannexation or incorporation. It is only subject
to the limitations imposed by the basic purposes of the Mandate
and by its express terms that the Territory may be governed as
an "integral part" of the Union. A contrary construction would
obviously nullify the Mandate and erase both the international
status of the Temtory and the Union's duties as Mandatory.
Incorporation or annexation can take place through single

political acts,such as a proclamation, or through gradua1and erosive
processes.The distinctionis one of method only ;the result in either
case being interdicted. That the Union government is aware of the
two roads to the same result is shown, for example, in the following
statement by a Delegate to The Union House of Assembly:
"...1wouldlike to make itsclearthat whenone dealswith the
position of South West one really has to deal with two separate

lSee,for example, page 43; supra.
'Internationai Staftts of South WAfricd,~dbisor~ Opinion:1.C.J R.eports
rgso, p. 128 a131.
13186 SOUTH WEST AFRICA

problems which should be dealt with separately. The one is the
international problem, the legal position of South West vis-à-vis
the world; and the other is the inter-relationship between South
West and the Union ...Consequentlywe make no secretof it that
the questionof annexation in the old fashionedsenseof the wwd has
lost al1practicalmeaning.Within the rights and powers the Union
has always had in respect of South West, South West has in fact,
defacto, become a partner of the four provinces, the fifth unit in
the broad frameworkof South Africa, ..."l (Italics added.)

Piece-meal incorporation amounting to de facto annexation is
both insidious and elusive. Motive is an important indicator since
it sheds light upon the significance of individual actions, which
might otherwise seem ambiguous.

I. The avowed intentions of the Union.

In Chapter II herein, the Applicant has set forth the long record
of the Union's continuous assertions that the Mandate has lapsed,
that the Union has no duties thereunder, and that the Union alone
has a legal interest in the Territory. Because, in these respects, the
record is so consistent and so clear, the statements which foiiow
may be taken as a true and accurate picture of the Union's intent.

On May 21,1956, when asked inthe Senate by a member from the
Union of South Africa whether it would not be advisable to proceed
to annex the Temtory and "thus bring the matter to a final end and
determination", the Prime Minister replied:
" ...May 1 Sayto hirn that the attitude of our Govemment and
of the previous govemment, the Smuts Govemment, was that as
a result of the disappearance of the old League of Nations both
the Smuts Govemment and the #wesentGovernment have taken up
the attitude that thereis no other bodythat kas anything to say in
so fur as South WestAfrz'caz'sconcemedexceptSouth Africa itself
and thattherefwe it is well w'thzn our pmer and fully within our

pow~ to incorpwateSouth West Africa as part of the Union. Up
to now we have declared unto the world that legaily and otherwise
that is the position but that in the meantime we are prepared,
although we do not for one moment recognize the rights of the
United Nations organization, even should we one day incorporate
South West Africa, to govern South West Africa in the spirit of
the old mandate. So, whether we will proceed at a later stage to
cany out and put'into effect what we regard as Our rights over
which nobody has anything to Say, that will depend on how cir-
cumstances develop in the future. 'a (Italics added.)
l House of Assembly Debates, Hansard, 1956. No. 13, cols. 4107-10, cited in
Report of the Committee on SouthWest Africa, U.N. Gen. AOff .ec. 12th Sess.,
Supp. No. 12at 6 (A/3626) (1957).
Union of South Africa, Senate Debates, Hansard, 1956,No. 15,col. 3628. cited
in Report of the Committee on South West Africa, U.N. Gen. Ass. Off. Rec. 12th
Sess., Supp. No12 at 7, para12(A/3626) (1957). MEMORIALOF ETHIOPIA

The Union, accordingly, has not concealed its denial of any legai
restraint upon its administration of the Territory, and regards out-
right incorporation in toto as a mere question of tactics, rather than
a matter of legai consequence.
In 1956 he Union's Prime Minister stated at a ~adiamentar~
Session in a speech (more fully quoted below) :

" ...1 just want to emphasize that South West is no longer
a Mandated territory, but is ruled as an integral part of the
Union". l
This officia1 statement admits expiicitly that the Mandate, if
considered to be in effect, iimits the manner in which the Union

may rule the Temtory as an "integral part" of the Union. Further-
more, the statement reveals the Union's awareness that its actions
in this respect exceed the permissible bounds of the Mandate, if the
Mandate is still effective, asthe Applicant contends and the Advisory
Opinion of II July, 1950 holds.
A statement made in the Union House of Assembly by a repre-
sentative from South West Africa (residents of South West Africa
are elected by "Europeans" in the Temtory as members of the
Union Parliament) describes in detail the Union's poiicy of piece-
meal and defactoincorporation. In the light of his frank concessions,
and because his statement received express sanction by the Union
Prime Minister, the statement is excerpted at some length :

"1wouldlike to make it clear that whenonededs withtheposition
ofSouth Westone really has todeal with two separateproblemswhich
shoolldbe dealt with sefiarately.The oneis the internationalproblem.
the legalposition of South West vis-à-vis the world; and the otheris
theinter-territorid relalionship,i.e., thepracticalrelationshi between
SoscthWest and the Union. When one discusses South 3 est, one
ought to be able to draw a clear distinction between the inter-
national position and the inter-territorial relationship. Such
the sovereignty of South West rests; whether the powers of them
old League of Nations in regard to mandated territories have
automaticaily been transferred to the newUN0 ornot, are questions
which in my opinion should fall under the international question.
Those are matters on which there is a great difference of opinion
in the outside world, even amongst the judges of the world court,
and personally1 do not think it would be of much use or bnng
us much furrther to have long debates in this House or outside
on the party politicalplatform in regard to thoseacademicquestions.
What 1sof much gieater importance to us is the practical relation-
ship, the inter-territorial relationship between South West and the
Union. No one has ever doubted and no one doubts today-not
even the International Court-that the Union has always had the
right to govern South West as an integral portion of the Union.
And South West Africahas always wanted that. And it is in regard

Col4128,locnt.,Foutnote1,p.186,suea.I88 SOUTH WEST AFRICA

to the practical application of this, how t.he territory should be
governed as an integral portion, that the voters of South West
were asked to decide in November. 1 have not the time to Say
much about the background of the matter, except this: Members
of this Committee will remember that the two political parties
in South West came to an agreement in 1948. That agreement
was based on a standpoint which both parties formally subscribed
to, namely that whatever might be the position of South West
Afnca in international law, as far as the public of South West
was concemed, they admitted, for their own purposes, that 'the
absolutesovereignpower, in the interior and in the sphere of foreign
and withno onehelse.'That was the first point of agreement betweenion
the two parties; it was the most important basis of that agreement.
Out of this agreement between the two parties there followed an
agreement between the two parties on the one hand and the then
Prime Minister on the other hand, and that agreement in turn
was recorded in the Act of 1949 which was approved by this
Parliament. 1 have not the time at my disposa1 to go into its
details, but to sum up al1the happenings of 1948-49,what happened
is that, between the Union and South West, inter-territorially-
not internationally but only inter-territorially-the Union on the
one hand ceased to regardSouth West as a subordinate mandated
territmy, and thatSouth West on theotherhand expectedto bevegarded
and treatedas an equalpartner with the other fourfirovinces.I must
say that in most respectsSouth West's expectationswere not disap-
pointed. The term mandated territory'disappeared from al1 OUT
statutes. We no longerblk in Ourstatutesto-day about 'themandated
.territory of South West'; we just talk about the territory of South
West Africa. As the result of the CO-dominationSouth West Africa
obtained throughits representationin this Parliamentin the govern-
provinces haveit, this Parliament ceasedto be the Parliament over
South West and became the Parliament of South West Africa. Con-
sequently we make no secretof it that the question of a<nexation in
the old-fashionedsense of the word has lost al1 practical meanang.
Within the rights and powers the Union has always had in respect
of South West, South West has in fact, de facto, becomea partner
of the four rovinces,the fîfth unit in the broadframework of South
Africa, anJ' on a basis best fitting the political, economic and
geographic circumstances of that territory. That is how we would
like the Government and the public of the Union to deal with
the matter.
"Now there are many people who think that because our legis-
lative assembly has different powers from that of the provincial
councils, because, e.g., it wak given the power to control its own
taxation, South West for that reason cannot be regarded as being
a partner of the four provinces. 1 would like to Say that thls
conception is, based on a misuiiderstanding. The arrangement ln
connection with separate powers of taxation was made for our
mutual convenience, for the convenience of South West as well
ahad been annexed in the old-fashioned sedse of the word, the form MEMORIAL OF ETHIOPIA 1~9
of local governmentand the forw offinancimgwr local semices in
South West weioulsdtdlhue been on a di#erentbasa'dhan llara+#la-
cableto the rovinces, forthe simple reason that there arefactors
present in kouth West which are not applicable to any of the
other provinces. Both General Smuts and Dr. Malanrealized
that, and it was also stated ih this House that there were cir-
cumstances in South West which make it practically impossible
to mle South West on the same financialbaçis as the provinces.l

With referenceto thiç statement, the Prime Minister of the Union
made the followingobservations:
"What the Hon. Member for Nanzib(Mr, Basson) said ifi cm-
nexzonmiththeposition ifiSouth W8sb Af&ca isqguitecorrect1 ma
just say that there is a very strongdesire on the partof tÇOU~ i!,
West administration, ad representations have been made to the
Union or greater'co-ordinationin respect of legislation aother
matters; that Iegidation of cornmon interest to the Unionand
South West should al- be applicable to South West. I jwslwant
to rnphaasizethat Swth West Bs no longsra Mandated tewilory,hi
is rwledas an idegral partof th Unern%." (Italics added.)
The Union's policyis thus franklybased uponthe prernisethat

"the question ofannexation in the old-fashipned sense ofthe word
has loçt al1practical rneaning." Indeed, in comrnenting upon ob-
jections voiced by a rnember of the opposition, the Union Prime
Minister stated :
"..Although we adopt the stand oint which his former leader,
General Smuts, adopted that the &date no longer cnists, the
Mandateitçelf laid down to the old League of Nations that the
Union had the right tu govern South West Africa as an integral
part of the Union. Wa cm, fm exampit:,makeaEl LWP.laws ofa;PpEi-
cation toD artd gover% itswly as a part of the Union and Shen
the Hon. Smator ...if he so Preferscam stilEadopt tk ~tan$$oid
that itislsodiltcorporûdeda"(Italics added.)

The Union, accordingly, claims a legal right to incorporate the
Territorypolitically,in a mannerand at a time of itsown choosing.
Although the Union has not chosen, at least up to the present, to
announce de jure annexation, its purpose is incorporation. The
Union, in furtherance of thispurpose, avowediy treats as ndi and
void the obiigationçstated in Article 22 of the Covenant andthe
Mandate, which prohibit unilaterd annexation and contemplate
progres towatd self-determination.
The intent of the Union, a3describedabave, ismanifest not ody
frm officiaçtatements, but ithas been given practical effect by,
and explains, Union action.

2. Acts ofirke Uaion i7acolasisden tith the inttrrwatioleltatss of
the Territory.

l Seefootnot1,p. 186supra.
Tlnionof South Africa, Senate Debates, Ha~sard,5534,clted in Report
ofthe Cornmitteeon South West Afriça, Gen. AssOff.Rw. r3thSes,,%pp.
No. 12at9 (A/3go6) (1958).=go SOUTH WEST AFRICA

(a) Ge.izeracortferralof Union citazercshi#upon &habitantsofiht
Territory.
A question arose shortly afterthe establishment of the Mandate
System, concerning the legal status of individual inhabitants of
mandated territuries. The question was settled by the Councilof the
Zeague of Nations in a reçolution ofApnlz3, 1923:

"1.The status of the native inhabitants of a mandated territory
is distinct frorn that of the nationals of the mandatory Power
and camot be identified tkerewith bya7ty procsss Iaavingggensral
applicatioa.
2. The native inhabitantç of a rnandated territory are not
invested with the nationality of the mandatory Power by reason
of the protection extended to them.
3. Tt is not inconsistent with paragraphs I and 2 above that
individual inhabitants of the mandated territory should vohlatarily
obtain naturalization from the mandatory Power in accordance
with arrangements which it is openta çuch Power to make, with
this object under its own law.
4. It is desirable thatnative inhabitants who reçeive the
protection ofthemandatory Power should in each casebedesignateci
by some fom of deçcriptive tittle which will specify their status
under the mandate." l (Italicadded.)
In spiteofthe aboveprinciplesregardjng the statusof inhabitantç
of a mandated territory, the Union has byproceçses of "general
application" identjfied the status of inhabitants of the Tenitory

with that of Nationals of the Union. This canbe seen from the
followjng siammary hwtory of Union Natjonality Statutes.
The British Nationality inthe Unionand Naturalization of Aiiens
Act, 1926 (No. 18 of1926 )onferredBritish nationalityinthe foliow-
ing language :
"_ E. Dqînition OJ Natwd-borva British Swbjects.The following
prsons shall intheUnionbe natural-born British subjects,namely:
(a)Any person born within Hi. Majesty's dominions and
alkgiance ;
........................

30. Intar$retaiionoJTerms. (1) In this Act, unlesç incon-
sistent with the context-
'British subjectmeans a person who is a natural-bornBritish
subject, or a person who is a hoIder of a certificate of natural-
ization or a personwho has become a subject of Wls Majesty by
reason of any annexation of territory, or othenvise, has under
this Act becomea British subject; ...
'the Union'inchdes also, inaddition tu Ihalamitsof the U~iol~ of
Sodh Ajrica, the Mandaled Tewitmy of Saarlh-WcstAfrica." '
(Italics added.)

bague ofNations Off. J., p. 604(1923).
South Africa), Vor, p. ro71ff.tutes rgro, tg47(ButtarwortkCo.,Durban, > = ,
MEMORTALOF ETHIOPIA

The Union Nationality and Flags Act, 1927 (No. 40 of 1927 )
defined an "alien" in terms of that dass of personsexcluded from
the claçs "British subject" as defined in Section 30 quoted above.
The same Act confersed Union Nationality on "a person born in
any part of South Africawho isnot an alienor prohibit ed irnmigrat
under any law relating to immigration." South West Africa was
included in the Union for purposes of the Act.
Pior to the subrnission of the Government's report for 1928 to
the League of Nations, the representativeofthe Union Government,

on being asked by amemberofthe Permanent Mandates Commission
whether the terni "person" as used in the provision quoted above
included a "Native," had infomed the Commission that the "whele
basis of the law was that, before a person could become a Union
nationaI, he must be a Britishsubject. Once that point was realized,
the Act beçarne perfectly plain. A nativeof South-West Africawas
not a Britishsubject, and, that being so, he could not become a
Union national."
In 1949, however, the Union passed the Act presently in force,
the South African Citizenship Act, 1949 (No. 94 of 1g49) whch
pmvides, antw dia, as follows:

"... 32 (2) Evq fierson borwin Sodh- West Africa o9aor aftct.
the date of comwmcment of the British Nationality inthe Urzion
alad NaturdizatioonanlaStat~sofAlims Act, rgz6(Act No. 18 of
19.26)~bat #rior i!the date ofcommmment ofthis Act alzdwh
was imediately prior lo thedate of commencmen.tof tis Act,
dmiciled isth Unionor Swltla-WestAfrica,shaUbe a South African
citizen.%Italics added.)
... 5 (1 A1 person born outçide the Union prior to the date
of commencementof this Act, other than a person referred to in
subsection (2)of Section two,hall be a South Africancitizen if
his father was at the time of his birth a Britishsubject under the
conditions,thateisto say, if eitherulfihany oneof thefollowing

(e) his fatherwas, at the time of his birth, domiciled in the
Unionor South-West Africa.
...3 38.As from the date of commencement of this Act, any
referencein any law to a Union National or to Union nationality
shaibie deemedto be a referenceto a South Africancitizen or to
South African citizenshi , as thcase rnay be,and any reference
to a Bntish subject shae be deemed to bea referenceto a South
Africancitizen, a citizen of a Commonwealthcountry or a citizen
of the Republic of Ireland, and any reference to natural-bom
British subjects shaii be deemed to ba referenceto Qersonw sho
by virtue of birth or descent are South Africancitizens orcitizens
of any Commonwealthcountry or ofthe Republicof Ireland,or
who have at any time been such citizens and are not diens.'"

1ibid.
aAct No.44of 1949Statutes of the Union of South Africa (r949)p,. qlqff.= 92 SOUTH WEST AFRICA

The wholeof Act No, 18of 1926 and the provisio onfAct No. 40
of 1927 relating to nationality were repealed by the above-quoted
South African CjtizenshipAct, 1949 (No. 44 of 1949).It is plain on
the face of Section 2(2) of the latter Act that inhabitants of South
West Africa who have been born there and are dorniciled there
automatically become citizens of the Union solely by virtue of their
place of birth. The Union canno longer plausibly contend that a
person must be a British çubject before he can become a Union
National or a South African citizen, since the Acts defining"British
subject h"ave been repealed.

It is also noted thatby officiausage, "Native" inhabitants of the
Territory are considered Union citizens. For example, in a letter
dated July 5, 1960, from the Secretary for South West Africa,
Officeof the Administrator, to the Assistant Secretary, Ovamboland
Peoples' Organisation, it is stated:
"With refërenceto your letter othe ~2nd February last, 1return
herewith copy of the petition forwarded under cover thereof and
at the request of the Pnme Minister have to inform you that the
Union Government cannot concede that the inhabitants of South
West Afnca have the right to address petitions to the United
Nations Organisation or that there iç any obligation on the Union
Governmentto forward petitionsto the organization.
The petitioners have, of course, an contneo?z,ith otb~rSouth
Africa~ citixens, the subject's .rightof petition to the highest
legislative and administrative authorit yinthe l"1(Italics added.)

By identifying the status of inhabitants of the Territory with
that of Union nationals through processes having generd applica-
tion, the Union haç violated itsobligations as stated in Article zz
of the Covenant and Article 2 of the Mandate.
(b) Iaclusion of reflrescntatzves/rom South West Africa .in the
Union Parliament.

In 1949, the South West Africa Affairç Amendment Act was
adopted by the Union. That Act, in addition to deleting from the
Union's Constitution di referenceçto the Mandate as çuch, provides
for representation of the Territory in the Union Parliament.
Territorial representatives, in accordance with the basic discrimi-
natory policy ofthe Union, are elected only by "Europeàns". The
representatives, in addition to participating in actions relating to
the Temtory, are fullyauthorized to speak and vote on matters
regarding the Union as well.
The Committee on South West Africa concluded as follows with
regard tothe Union's policies in this respect:

". . . Threpresentation ofthe Territorin the UnionParliament,
considered inthe light ofaiithe circumstances at presensurroun-
ding it, leads the Cornmittee to believe that this an im$oP.talzt
l U.N. Doc.No.AlAc. 7313at 44(rg6o).
ActNo. 23of 1949Statut- ofthe Union of South Afr(19491, 178. MEMORIAL OF ETHIOPIA 193
step lowardsilsefiolitfcalintegrationof thel'erriiory into the Union.
Ttdraws particular attention to those statements in whichspokes-
men of the Union Governrnent have associated the parliamentary
representation of South West Africa with assertions of sovereignty
over the Territory and of a desire to integrate it completely with
the Union..." (Italics added).

The poiicy of "political integration" violates the Union's obli-
gations as Maridatory not only because it erodes the international
status of the Territory, but, also, because it thereby impedeç
opportunity for self-determination by the inhabitants of the
Territory. The Cornmittee on South Weçt Africa took particular
note of this latter consequence of the Union" actions. In the
Report cited irnniediately above, the Cornmittee stated :

"The existing arrangements are indeed of such a nature as to
have excluded either thc consultation ar the representation of the
largest section of the population and that.section most in need
of opportiinities for political education."
In other words, the Union's poiicy of including in the Union
Parliament racially selected representatives frorn the Territory is
not only part of a,plan to incorporate the Territory politiçally, but
also excludes "natives" frorn the processes of self-government.
(c) Administrative Separaliotz of the Eastern Caprivi Zifijel frorn

lhe Uni0.n.
In 1939, the Union enacted Proclaination No. 147, tramferring
administration ofthe Eastern CapriviZipfel frorn the Adrninistrator
of South Weçt Africa to the Union directly. The Proclamation reads
in part as follows :

" ...I. Frorn and aftcr the comrncncementof this proclamation
the Eastern Caprivi Zipfel'shallcease to be administered as a part
ministrator- of the said Mandated Territory shall aceaseeto be the
Adrninistrator of the Eastern Caprivi Zipfel.." 2

The 1955 Report of the Committee on South West Afnca con-
demned this çeparation as a violation of the Mandate and rejected
the avowed purpose of the action, for reasons which the Applicant
fuily endorses and submits to the Court:

"With regard to the administration of theEastern CapriviZipfel,
the Committee again questions whether the administrative sepa-
ration of any section othe Territory is conduc~veto the attainment
of the objective of the Mandate Systern. The Committee reiterates
the opinibn that such a separation is likely to prejudice con-
sideration (b) of the 'General Conditionswhich rnuçt be fulfilled
before the Mandates regime Fan be brought to an endin respect
of thecofintriesplaced under that regime,'approved by the Council
oi the League on 4 September, 1931n ,amely, that 'It [the t'errltory]
l Report of the Cornmitton South West AfricaV.N. Gen. .4ssOff. Rec.Ith
Sess., Supp. Na. at 8(A/~I~I)(1956}.
Unian ProclamationNo. 147 of1939.r 94 SOUTH WEST AFRICA

must be capable of maintaining its territwial integrity andpoliticai
independence.' The Committee considers that any adminiçtrative
obstaclesinftheywayrof the fuliïlment of this important conaition
laid down by the League of Nations. In this cannection, the Com-
mittee notes that the Prime Minister of the Unionstated in Par-
liament on I June rg5r that the reason for the placing of the
Eastern Caprivi Zipfel under direct Union Administration waç the
inaccessibility the region to South West Africa. The Committee,
realizing that the Eastern Caprivi ZipfeI can be reached from the
adminiçtrative centers of the Union only through non-Union
tenitories, is not convinced that the direct administration of the
the Union has, in fact, made it more accessible to the
Rcgitnr o administration." "

(d) The eiestingof Soah West Africa Native Reseme Land On the
Sawth Africa Native Trwst ad th tramfer of ad~irsistvatioa of
"Native" aflairs to the U~ion'sMinister of Badu Administration
afid Dauelopme~t.

The above twa actions are to be regarded as elements of the
plan tri incorporate the Territory into the Union, in this case
through direct Union control of territorial land and development
and direct control of the Territory's "native" inhabitants.
Transfer of "Native" affairs fo an agency external to the Terri-
tory, and vesting "Native"' lands in a corporate body external to
the Territory çannot be reconciled with the international statu
of the Territory.
The Cornmittee on South West Africa, in itç1955 Report, sets

forth relevant principlesin termç whiçhthe Applican t fulleyndorses
and subrnits to the Court:
"ln thisconnection, the Committeesecatls thefollowingresolution
adopted by the Permanent Mandates Commissionon 7 July 1924
at its Eourth Session and endoxsed by the Council of the League
of Nations in 1926:
'In the Opinion of the Commission:

'The Mandatory powersdo not possess,in virtue of Articles120
and 257 (paragaph 2)of the Treaty of Versailles,anyright over
anypart of the Territory underniandate other than that resulting
from their having ken entrusted with the administration of the
Territory.
'If any legislative provision relating to land tenure should
lead ta conclusions contrary to these principleç, it would be
desirable that the textçhould be modified in order not to allow
of any doubt.' ...
"It isthe consideredopinionof the Committeethat the Mandate
does nat and can in no way be interpreted toconfer upon the
Mandatory Pawer the authority to divestthe Mandated Temtory
of anyportion of its-assets.""
*Repart of the Cornmittee on South West Afrjca, U.N. Gen. Ass. Rec.
10thSess.Supp. No.12 atIO (klzgrg(~955).
Id.at 15-16, MEMORIAL OF ETHIOPIA I95
And inits rg56 Report, the Cornmittee stated on the same sub-
ject:

"With regard to the vesting in the South African Native Trust
of al1lands set apart for the sole use and occupation of 'Natives',
the Cornmittee reiterates its previous opinion that the territorial
assetç and integrity of South West Aftica must remain intact and
must be maintained until such time as the Territory has obtainerl
the goal established forit under the Mandates System, and that
its assets cannot be vested in any source other than the Mandated
Territory itself.."l
It isçubmitted that the actions complained of in thissub-section
are elements of a plan for political integratjonof the Territory, and
that they tend substantialiy to impede progress toward the ob-

jectives of the Mandate.

The power, conferred by the Mandate, to mle the Territory "as
an integral part of the Union" must be read in the lightof the declas-
ed purposes of the Mandate and the Mandate's prohibition against
unilateral incorporation of the Territory or any otber modification
of the Temitory's status. The Advisory Opinion of II July, 1950
has amrmed these pinciples and the Union has never concealed
its purpose to disregard them.
Under Article 2 of the Mandate, the Union has the duty to

prornote conditions under which the Territory's inhabitants may
progress toward self-determination. This objective has been frus-
trated by the Union's actions in: (1) conferring, by processes of
general application, Union dtizenship upon the inhabitants of the
Territory solely by virtue of birth and domicile in the Territory ;
(2) including discriminatorily selected representatives from the
Territory in the Union's Parliament and giving svch representatjves
a voice and vote in al1affairson whch the Parliament iscompetent
to legislate; (3) ceasing to administer the Eastern Caprivi Zipfel
"as a part of the Mandated Territory of South West Africa"; and
(4) vesting South West Africa Native Reserve Land in the Union's
South African Native Trust, and transferring the administration
of "Native" affairs to the Union's Minister of Bantu Administration

and Development.
By the foregoing actions, read in the light of the Union's avowed
intent, the Union has violated, and is violating, its international
obligations çtated in Article 22 of the Covenant of the League of
Nations and inArticle 2 of the Mandate.

l Report of the Cornmittee on SoutWest Africa, UN. Gen. Ass.Off. Hec-
11th Sess.Supp. No.12 at11-12(A131gr)(1956).=96 SOUTH WEST AFHICA

ALLEGED VIOLATIONS BY THE UNION OF ARTICLE 7
OF THE MANDATE

Article 7of the Mandate provides: "The.consent of the Leagueof
Nations is required forany modification ofthe terrns ofthe preçent
Mandate."
The Court ruled in its Advisory Opinionof 11 July, 1950 that it
is the United Nations whose consent is now required for any
modification ofthe terms of the Mandate.

It issubmitted that the actions of the Union, as set forth in
Chapters V, VI, VI1 and VI11 of this Memorial, read in the light
of the intent of the Union, as .appears from the record herein,
constitute a unilateral attempt by the Union substantially to
modify the terms of the Mandate.

I. TheUnion's Inknt
The Union, as amply dernonstratecl by its own admissions
described in this Mernoriai, has proceeded from the assumption
that the Mandate is no longer in existence,that the Union has no
obligations under the Mandate, and that it has the right and the
power unilaterally to incorporate the Territory by de facto annex-
ation or otherwise.

2. Acts ofthe Union

In Chapters V, VI, VI1 and VI11 the Applicant has shown
violations by the Union ofArticles 2, 4, 6 and 7 of the Mandate.

The Applicant submits that the foregoing acts of the Unionread
in the light of the Union's intent, çonstita unilateralatternpt to
mod~fy the terms of theMandate without the consent af the United
Nations, and that such actsaccordinglyare, severallyand in their
tcstality,a violation Article 7 ofthe Mandate. MEhlORIALOF ETHIOPIA I97

SUBMISSIONS

Upon the basis of the foregoingallegations of fact, supplemented
by such facts as may be adduced in further testimony before this
Court, and the foregoing statements of law, supplemented by
such other statgments of law as may be hereinafter made, may
it please the Court to adjudge and declare, whether the Govern-
ment of the Union of South Africa is present or absent, that:

I. South West Afnca is a territory under the Ma\ndateconferred
upon His Britannic Majesty by the Principal Allied and Associated
Powers, to be exercised on his behalf by the Government of the
Union ofSouth Africa, accepted by his Britannic Majesty for and on
. behalf of the Government of the Union of South Africa, and con-
firmed by the Council of the League of Nations on December 17,
1920 ;
2. the Union of South Africa continues to have the international
obligations stated in Article 22 of the Covenant of the League of
Nations and in the Mandate for South West Africa as well as the
obligation to transmit petitions from the inhabitants of that Terri-
tory, the supervisory functions to be exercised by the United
Nations, to which the annual reports and the petitions are to be
submitted ;

3. the Union, in the respects set forth in Chapter V of this Memo-
rial and summarized in Paragraphs 189 and 190 thereof, has
I practised apartheid, i.e., has distinguished as to race, color, national
or tribal origin in establishing the rights and duties of the inhabit-
ants of the Territory; that such practice is in violation of its
obligations as stated in Article 2 of the Mandate and Article 22
of the Covenant of the League of Nations; and that the Union
has the duty forthwith to cease the practice of apartheid in the
Territory ;
4. the Union, by virtue of the economic, political, social and
educational policiesappliedwithin the Territory, whichare described
indetail inChapter Vofthis Memorialand summarizedat Paragraph
p gothereof, has failed to promote to the utmost the material and
moral well-beingand socialprogress of the inhabitants of the Terri-
tory;that its failure to dosoisin violation ofits obligations asstated
in the second paragraph of Article 2 of the Mandate and Article 22
of the Covenant ;and that the Unionhas the duty forthwith to cease
its violations asaforesaid and to take allpracticable action to fulfill
its duties under such Articles;19~ SOUTH WEST AFRICA

5. the Union, by word and by action, in the respects set forth
in Chapter VI11 of this Memorial, has treated the Territory in a
manner inconsistent with the international status of the Temtory,
and has thereby impeded opportunities for self-determination by
the inhabitants of the Temtory ;that such treatment is in violation
of the Union's obligations as stated in the first paragraph of
Article 2 of the Mandate and Article 22 of the Covenant; that
the Union has the duty forthwith to cease the actions summarized
in Section C of Chapter VI11 herein, and to refrain from similar
actions in the future; and that the Union has the duty to accord
full faith and respect to the international status of the Territory;

6. the Union, by virtue .of the a~ts described in Chapter VI1
herein, has established military bases within the Terntory in
violation of its obligations as stated in Article 4 of the Mandate
and Article 22 of the Covenant; that the Union has the duty
forthwith to remove al1such military bases from within the Ter-
ritory; and that the Union has the duty to refrain from the
establishment of military bases within the Terntory;
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 measures it has taken to carry
out its obligationsunder the Mandate; that suchfailureisa 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 Unionhasfailed 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 has the duty to
transmit such petitions to the General Assembly ;

g. the Union, by virtue of the acts described in Chapters V, VI,
VI1and VI11of this Memorialcoupled 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 ofits duties asstated in Article 7 of the Man-
date and Article 22 of the Covenant; and that the consent of the
United Nations is a necessary prerequisite and condition precedent
toattempts on thepart ofthe Union directly or indirectly to modify
the terms of the Mandate.

The Appiicant reserves the right to request the Court to declare
and adjudge in respect to events which may occur subsequent to
the date this Memorial is filed, including any event. by which the
Union's juridical and constitutional relationship to Her Bntannic
Majesty undergoes any substantial modification. y -;,.
MEhlORIAL OF ETHIOPIA

Mayit alsoplease the Courttoadjudge and declare whateverelse
it may deem fit andproperin regard tothiçMernorial,and to make
al1 necessaryawardç and orders,including an award of costs, to:
eifectuate its determinations.

The Hague, April 15, 1961

Agents for the Governrnentof Ethiopia

(Signed) Tesfaye GEBRE-EGZY
(Signed) Emest A. G~oss 200 SOUTH WEST AFRICA

ANNEXES TO THE MEMORIAL OF THE
GOVERNMENT OF ETHIOPTA

COVENANTOF THE LEAGUEOF NATIONS

ARTICL 22

r. To those colonies and territories which asa consequencofthe laie
war have ceased to be under the sovereignty of the States which formerly
governed them and which are inhabited by peo les not yet able tostand
by thernselves under the strenuous conditiooi'the modern world, there
should be applied the principle that the well-being and developmentof
such peoples form a sacred trust of civilization that securities for the
performance of this trust shoulbeembodied in this Govenant.
2. Thébest method of givjng practical effect to this principle is that
the tutelage of such peoples should be entrusted to advanced nations
who by reason of their resources, their experience or their geographical
position can best undertake this responsibility, anwho are willing to
accept it, and thatthis tutelage should be exercised by them as Man-
datorieson behalf of the League.
3. The character of the mandate must differ according to the stage of
the development of the people, the geographical situationof the territory,
its economic conditions and othesimilarcircurnstances.

4. Certain communities formerlybelongjng to the Turkish Empirehave
reached a stage of development where their existence as independent
nat~ons can be provjsionally recognized subjccto the rendering ofad-
ministrative advicand assistance bya Mandatory until such time as the!?
principalconsideration in the selection of the Mandatory.must be a

5. Other peoples, especially those of Central Africa, are atasstage
th+ the Mandatory must be responsible for the administration ofthe
territory under conditions which wilI parantee freedom of conscience
and religon, subjeçt only tthemaintenance of public order and morals,
the prohibition of abuses such as the slave trade, the arms traffic andthe
liquor trafic, and the prevention of the establishment of fortifications or
mhtq and naval bases and of military training of the natives forother
- than police purposesandthe defence a£ territory, and will also secure
equalopportunities for the trade and commerce of other Members of the
League.
6. There are territaries, such as South West Aftjca and certainthe
South Pacific Islands, which,owingto the sparseness of their population,
or peirsrna. size, or their remotenesç from the centresof civilization, or
the~r geographicai contiguity to the territory of the Mandatoïy, and
other àrcumstances, can bebest administered under the laws ofthe Man-
datoy.7 as integraI portions of its territory, subject to the safeguards
above rnentjoned in the interests of the indigenous populatian. MEMORIAL OF ETKIOPIA 201

7. In every case of mandate, the Mandatory shall render to the Council
an annual report in reference to theterritorycornmitted to its charge.
8. The degree authority, control, or adrninistration to be exercised
by the Mandatory shall, if notpreviously agreed upon by the Members
of theLeague, be explicitly defined in each case by the Council.

g. A permanent Commission shall be constituted to receive andex-
amine the annual reports of the Mandatories and to advise the Council
on al1matters relating to the observance of the mandates.

MANDATEFOR GERMAN SOUTH WEST AFRICA

I'heCownca' lftheLeague of Ndions
Whereas by Artide 119of the Treaty of Peace with Germany signed at
Versailles on June 28th, rgq, Germany renounced in favour of the
Principal Allied and Associated Powers al1 her rights over her oversea
possessions,including therein German South-West Africa; and

Whereasthe Principal Alliedand Assaciated Powers agreed that, in
accordance with Article 22 Part 1 (Covenant of the League of Nations)
of the said Treaty, a Mandate should be conferred upon His Britannic
Majeçty tobe exercised on hiç behalf by the Government of the Unionof
South Africa to administer the territory aforementioned, and have pro-
posed that the Mandate should be fotmulated in the followingtermç;and
Whreas His Britanrtic Majesty, for and on behalfof the Government
of the Union of South Africa,haç agreed to accept the Mandate in respect
of the said territory and ha$ undertaken to exercise it on behalf of the
League of Nations in accordance with the following provisions; and
Wltercas,by the aforementioned Article 22, paragraph 8, it is provided
that the degree of authority, control or administration to be exercised
by the Mandatory not having been previously agreed upon by the
Members of the League, shall be explicitly defined by the Council of the
League of Nations:
Confirming the said Mandate, defines its terrnr;as fol1owç:-

The territory over which a Mandate is confersed upon His Britannic
Majesty for and on behalf of the Governrnent of the Union of South
Africa (hereinafter called the Mpdatory) comprises the territory which
forrnerly constituted the Geman Protectorate of South-West Africa.

ARTICL E

The Mandatory shall have full pwer ofadministration and legislation
over the territory subject to the present Mandate as an integal portion
of the Union of South Africa, and may applg the laws of the Union of
South Afrîca to the territq, subject to such local modifir.ations as
circurnstances may require.
14292 SOUTH WEST AFRICA
The Mandatory shall promote to the utmost the materiai and moral
weU-beingand the social progress of the inhabitants of the territory sub-
ject to the preçent Mandate.

The Mandatoryshdl see that the slave trade is prohibited, and that
no forced labour is permitted, except for essential public works and
services, and then only for adequate remuneration.
The Mandatory shall also çeethat the trdc in arms and ammunition
is controlled in accordance with principleç andogous to those laid dom
in the Convention relating to the control of the arrns trac,signed on
September ~oth, rg19, or in any convention amending thesame.
The supply of intoxicating spirits,and beverages to the natives $hall
be prohibited.

ARTICL 4E
The militas. trainin of the natives, othenvise than for purposes of
internal police and th7ocal defence of the territory, shbe prohibited.
Furthemore, no military or naval base shallbe established or fortifica-
tionserected in the térritory.

Subject to the provisions of any local Iaw for the maintenance of
public order and public mords, the Mandatory shall ensure in the terri-
tory freedom of conscience and the freeexerciçeof al1forms of worship,
and shall allow allrnisçionaries, nationais of anÇtate Mernber of the
Lwgue of Nations, to enter into, travel and reside in the territory for
tEiepurpose of prosecuting their cahng.

The Mandatory shall make to theCouncil of the League of Nations an
annual report to the: satisfaction of the Council, containing fuinfor-
mation wlth regard to the territory,and indicating the measures taken
to carryout the obligationsassurneil underArticles2,3,4 and 5.

The consent of the CounciI of the League of Nations is requiredfor
any modification of the terms of the preçent Mandate.
The Mandatoryagrees that, if any dispute whatever should a&
between .the Mandatory and another Member of the League~f Nations
relating to the interpretation or the a&liçation of the provisions of the
Mandate, suchdispute, if it cannot be settled ,bynegotiation,shd be
submitted to the Permanent Court of International Justice provided for
by Article 14of the Covenantof the League of Nations.
Thepresent Declaration shall be deposited in the archivesofthe League
of Natrons. Certifredcopies shd be forwarded by the Secretary-Generd
of the Leagueof Nations to all Powers Signatories of the Treaty of Peace
with Gemany.

Made at Gwwa the17th day O/Decmb~, 1920. .l\r
MEMORIAZ OF ETHIOPTA

LIST OF THE RELEVANTDOCUMENTS

Article22of theCovenant ofthe League ofNationsand the Mandate
for South-WestAfricaareprinted hereias Annex A and B respectively.
The remainder of the documents listed below werefiledwith the
Registrarof the Court,in accordancewith Article 43 of the Rules of
the Court.

1. ~a&ments of theUnitedNations

A. Resolzdtioms!theGmeralAssembly
I.U.N. Doc. No.A/64/Add.1 (1947)
2. U.N. Gen. Ass.Off.Rec. and Sess. (A/g~g)(1948)

3. U.N. Gen. Ass. OffRec.3rd Ses. (A/81o)(1948)
4. U.N. Gen. Ass. Off. Rec. 4th Sess. {Alrzgr/1)(xg4g)
5.U.N. Gen. Açç. Off.Rec. 5th Sess., Supp. No20(A11775)
(1950)
6. U.N. Gen. Ass. Off. Rec. 6tSesç.,Supp. No. 20(A/zII~)
(1952)
7.U.N. Gen. Ass. Off. Rec8th Çess.,Supp. No. 17(A1263o)
(1953)
8.U.N. Gen. Ass. Off. Rec. qtSess.,Supp. No.21 (AJz8go)
(1954)
q.U.N. Gen. Ass.Off . ec.10th Sess.Supp. No. 19(A13116)
- (1955)
IO.U.N. Gen.Ass. Off. Rec. 11th SessSu- - Na. 17(A135721
andCon.1) (1957)
II.U.N. Gen. Ass.Off. Rec.12th Sess., Supp. No. 18 (A13809

(1957)
12.U.N. Gen. Ass.Off.Reç. 13th Sess.Supp. No. 18(A/dogo)
(1958)
13. U.N.Gen. Açs. OffRec. 14th Sess.Supp.No. 16 (A14354
0959)
14.U.N. Gen. Ass. Off. Rec. 15th SeçSupp. No. 16(A146841
' (19601
B. Records ofthe FoaytlzCornmittee

r. U.N. GenAss.Off . ec. 3rSess., 1stpa4thComm. (1948)
2. U.N. Doc. No. A/C.~/SR.I~Z(1949)
3.W.N. Doc. No. A1C.41185(r950)
4. U.N. Doc.No. A/C.~/SK.I~~(1950)
5. U.N. Doc. No. A1C.4ISR.223(rgg~)
6. U.N. Doc. No. AlC.4ISR.364(1953)
7.U.N. Doc. No. A/C.4/SR.3gg(1954)
8. U.N. Doc. No. A/C.4/SR.40(1954)

g.U.N. Doc. No. AIc.41SRqg1 (1955)
10.U.N. Doc. No. AJC.dJSR.659(1957)
II.U.N. Doc..No. AlC.41SR.756(1958)
12.U.N. Roc. No. A/C.41421(1959)
q. U.N. Doc. No. AIC.41426(1959) 204 SOUTH WEST AFRICA
C. Documentsof theAd Hoc Commdtee

I. U.N. Doc. No. A/AC.4g/SR.21(r952)
2. U.N. Doc. No. AIAC.qg/SR.3(1951)

3. U.N. Doc. No. Alrgo~ (1951)
4. U.N. Doç.No. A12261(1952)

- R. Docummts oftheCornmitteeoraSouthWesi.Afraca

I. U.N. Gen. Ass. Off. Rec. 9th Sess., Supp. No14(A12666)
(1954)
2. U.N. Gen.Ass. Off. Rec. 10thSesç.,Supp.No. 12(Alzg13)
(1955)
3. U.N. Gen. Ass. Off. Rec. 11tSess.,Supp.No. 12(Alsrgr)
(1956)
4.U.N. Gen. Ass.Off. Rec. rzthSegs.,Supp. No. rz(A/3626)

(1957)
5. U.N. Gen. Ass. Off. Rec. 13tSes., Supp. No. 12(A13go6)
.1c-.)
6. U.N. Gen. Ass. Off.Rec. 14thSess.,Supp.No. rz(A14191)
11959)
7. U.N. Gen. Ass. Off.Rec. 15th Sess., Siipp,No12(A14464)

8. ConferenceRoornPaperNo. VII/;rS, 30August rg60

9. ConferenceRoom PaperNo. vII1B4,19September1960
ICI.ConferenceRoom PaperNo. VIIIB5, 21 Septemberrg6o
11. ConferenceRoomPaperNo. VIIJ92,30 September1960

E, Documents of the GooOpcesCommittce

I. U.N. Doc. No. A/3900U,.N. Gen. Asç.Off. Rec.13th Sess.,
Agendaitem 39, Annexes (1958)
2.U.N. Doc. No. A14224, U.N. Gen. Ass. Off.Rec. rqthSess.,,
Agendaitem 38, Annexes (1959)

F. RelatedDocwmmis of th4United Nations
r. U.N. Doc. No. A/334 (1947)

2. U.N. Gen. Ass. Off. Kec. 3rd Çesç.,Supp. No. 4 (Al6031
(1948)
3. U.N. Doc. No. A1929 (1949)
4. W.N.Doc. No.A/AC.73/L.3/Add.1 (1954)
5. W.N.Boc. No. A/AC.73/L.3(1954)

6. U.N. Doc. No. AlAC.73lL.7 (1955)
7. U.N. Doc. No. A/AC.731L.ro (1957)
8. U.N. Doc. No.A/AC.~~/L.I~(1959)
g. U.N. Doc. No. A/AC.73/L.r3(1959)
7
IO. U.N. Doc. No. A/AC.~J(~(1960) 1
11. UnitedNations Charter MEMORIALOF ETHIOPIA z05

II. Documentsof the Leagueof Nations
A. Minutes of thePermanent Mandates Commission
1. PMC (Min.2nd Sess.) (Amex 6) pp. 91-93

2. PMC (Min.4th Sess.)pp. 59-63
3. PMC (Min.6th Sess.) pp. 60-61
4. PMC (Min.6th Sess.) (Annex II) p. 178
5. PMC (Min.9th Sess.)(Annex g)p. 220

6. PMC (Min.11th Sess.) (Annex 6) pp. 204-205
7. PMC (Min.14th Sess.) (Annex 16) p. 275
8. PMC (Min.14th Sess.) (Annex 16)pp. 274-275
9. PMC (Min.15th Sess.) (Annex 20)p. 294

IO. PMC (Min.26th Sess.) (Annex 20)p. 207
II. PMC (Min.27th Sess.) (Amex 36) p. 229
12. PMC (Min. 31st Sess.) (Annex 7) p. 192
13. PMC (Min.31st Sess.) (Alinex7) p. 193

B. Leagueof Nations Oficial Journal
I. League of Nations Off.J. 21st Ass.pp. 32-33(plenary) (1946)
2. League of Nations Off.J. 21st Ass. p. 58 (plenary) (1946).

3. League of Nations Off.J. p. 604 (1923)
C. RelatedDocumentsof theLeagzceof Nations
1.Records of 9th Ass. of League of Nations, 1st Comm. p. 47

(1928)
2. L.N.C./166/M/66.1929.V, p. 97
3. Article 22 of the Covenant of the League of Nations
4. The Mandate for German South West Africa

III. Unionof SouthAfnca
A. LegislativeActs and Proclamatiolzs

1. Act NO.27 of 1923
2.Act NO.42 of 1925
Amended by Act No. 23 of 1949
Amended by Act No. 55 of 1951
Amended by Act No. 56 of 1954
Amended by Act No. 26 of 1955
Amended by Act No. 55 of 1957

3. Act No. 18of 1926
4. Proclamation No. 57 of 1926
5. Act NO.40 of 1927
6. Act No. 18 of 1936

Amended by Act No. 56of 1949
Amended by Act No. 18of 1954
Amended by Act No. 73 of 1956
Amended by Act No. 79 of 1957
Amended by Act No. 41 of1958
Amended by Act No. 46 of 1959206 SOUTH WEST AFRICA
7. Proclamation No. 51 of 1937

8. Proclamation No. 147of 1939
9. Act No. 46 of 1946
Amended by Act No. 50 of 1948
Amended by Act No. 55 of 1952
Amended by Act No. 8 of 1957
Amended by Act No. 30 of 1958

IO. Act No. 35 of 1948
Amended by Act No. 8 of 1950
Amended by Act No. 18 of 1952
Amended by Act No. II of 1956
Amended by Act No. 27 of 1958
Amended by Act No. 35 of 1959
II. Act No. 44 of 1949
12. Act NO.55 of 1951

13. Act NO.57 of 1956
14. Act NO.69 of 1957
15. Act No. 8 of 1959
Amended by Act No. 33 of 1960

16. Act NO.55 of 1959
B. Excerfitsfrom debatesin the Parliament of the Union of South
Africa

I. Senatedebates-Hansard, Vol. 15, columns 3631-3632(1956)
2. Houseof Assembly debates-Hansard, Vol. 13,column 4128
and columns 4107-4110(1956)

C. 0th~ documentsof the UnionofSouthAfrica
I. Report of South West Africa Commission (Pretoria, 1936)

P. 77
2. Report presented by the Govemment of the Union of South
Africa to the Council of the League of Nations conceming
(Pretoria, 1937)p. 4f South West Africa for the year 1936

IV. SouthWestAfrica

A. Proclamations,Ordinamesand GovernmentNotices
I. Proclamation No. 3 of 1917
Amended by Proclamation No. 6 of 1924
Amended by Proclamation No. 6 of 1925
Amended by Proclamation No. 15of 1928 (Section 26)
Amended by Proclamation No. 33 of 1929 (Section 2)
Amended by Proclamation No. 35 of 1930
Amended by Proclamation No. 16,of 1935

2. Proclamation No. 25 of 1920 3.
Amended by Proclamation No. 32 of 7927 MEMORIAL OF ETHIOPIA 207
3. Proclamation No. 34 of 1920

Amended by Proclamation No. 19 of 1923
Amended by Govemment Notice 173of 1924(para. 29)
Amended by Proclamation No. IO of 1927
Amended by Proclamation No. 22 of 1938
Amended by Proclamation No. 7 of 1947 '
Amended by Proclamation No. 26 of 1950
Amended by Ordinance No. 4 of 1955

4. Proclamation No. 50of 1920
Amended by Proclamation No. 30 of 1927(Section II)
Amended by Proclamation No. 15 of 1945

5. Proclamation No. I of 1921
6. Proclamation No. II of 1922

Amended by Proclamation No. II of 1927
Amended by Proclamation No. 15 of 1928 (Section 26)
Amended by Proclamation No. 43 of 1929(Section 2)
Amended by Proclamation No. 17 of 1933
Amended by Proclaination No. a4 of 1935
Amended by Proclamation No. 36 of 1936
Amended by Proclamation No. 30 of 1938
Amended by Proclamation No. 38 of 1941
Amended by Proclamation No. 6 of 1943
Amended by Proclamation No. I of 1944

7. Proclamation No. 6 of 1925
Amended by Proclamation No. 33 of 1929(Section 3)

8. Govemment Notice No. 26 of 1925
9. Proclamation No. 16of 1926

Amended by Ordinance No..zo of 1957
Amended by Ordinance No. 21 of 1957
Amended by Ordinance No. 9 of 1958
Amended by Ordinance No. 21 of 1959
Amended by Ordinance Efo.3 of 1960
IO. Proclamation No. 15of 1928
Amended by Proclamation No. 25 of 1937
Amended by Proclamation No. 24 of 1941

Amended by Proclamation No. 35 of 1943
Amended.by Ordinance No. II of 1954
II. Proclamation No. 33 of 1929
12. Proclamation No. 35 of 1930

13. Proclamation No. 27of 1931
14. Proclamation No. 29 of 1935
Amended by Proclamation No. 29 of 1936
Amended by Proclamation No. 36 of 1936
Amended by Proclqation No. 37 of 1940
Amended by Proclamation No. 2 of 1946
Amended by Proclamation No. 22 of 1946208 SOUTH WEST AFRlCA

Amended by Proclamation No. 38of 1949
Amended by Proclamation No. 59 of 1949
Amended by,Proclamation No. 51 of 1950
Amended by Proclamation No. 33 of 1951
Amended by Ordinance No. 25 of 1953
Amended by Ordinance No. 3 of 1955
15. Ordinance No. 16 of 1937
Amended by Ordinance No. IO of 1943
Amended by Ordinance No. 6 of 1945
Amended by Ordinance No. 13 of 1946

Amended by Ordinance No. 7 IO of 1957

Amended by Ordinance No. 27 of 1958
16. Proclamation No. 4 of 1939
17. Proclamation No. 17of 1939

Amended by Proclamation No. 25 of 1939
.4mended by Proclamation No. 17 of 1941
Amended by Proclamation No. 40 of 1949
Amended by Ordinance No. 30 of 1955
18. Govemment Notice No. 64 of 1940

19. Ordinance No. 3 of 1949
Amended by Ordinance No. 2 of 1953
Amended by Ordinance No. 15 of 1954
Amended by Ordinance No. 34 of 1955
Amended by Ordinance No. 14of 1956
Amended by Ordinance No. 19of 1956
Amended by Ordinance No. 48 of 1957
Amended by Ordinance No. 29 of 1958
Amended by Ordinance No. 32 of 1959
Amended by Ordinance No. 33 of 1959
Amended by Ordinance No. 14 of 1960

20. Government Notice No. 3 of 1951
21. Proclamation No. 56 of 1~51
Amended by Ordinance No. 21.of 1953
Amended by-Ordinance No. 25,of 1954
Amended by Ordinance No. 4 of 1955

22: Govemment Notice No. 121 of 1952
23. Ordinance No. 34 of 1952
Amended by Ordinance No. 28 of 1957
Amended by Ordinance No. 29 of 1960

24. Ordinance No. 35 of 1952 (Chapter 2)
25. Ordinance No. 48 of 1952

Amended by Ordinance 30 of 1959
26. Govermnent Notice No:257 of 1953

27. Proclamation No. 28 of 1953 .;,...
MEMORIAL OF ETHIOPIA

28.Ordinance No. 26 of1954
Amended by Ordinance No. 17 of 1955
Amended byOrdinance No. 3r of 1957
ArnendedbyOrdinanc Neo.23 of 1959
Arnendcd by OrdinanceNo. 2j of 1960
29. Govemment Notice No. 65 of 1955

Amended by Government Notice No. 245 of rg56
Amended by Government Notice No. 99 of 1957
Amended by Government Notice Na. 107 of 1958
Amended by Government Notice No. 62 of1959
Amended by Government Notice No. 262 of1960

B. RtsolzstiofO/theSodh West AJricanL. egislaiiveAssembly
I. South West Africa Legislative Assembly Voting and Proce-
dures Iz950P).4

V .Miscellaneeus

A. Books,Periodicalsetc.
I. Chronology of International Events, Vol. IO, No. 17,
19August-I September, 1954 p. 567

2. 235 South Africa, p511 (June 25,1955)
3. Bentwich,The iMadales System,pp. 120-13 (1930)
4. Wright, MafidatesandertheLeagzteofNations, pp. 472-476
(1430)
5. 42AmencamJozcrnaE ofIlzlerftationalLaw, 630 (July, 1948)

6. 38CaliforniaLaw Rt?view830 (1950)
7. Kosenne, TheInler~atio~alCoztrofJustice(1957)
8. Smuts, TheLeagat?ojNatiorzs,A PracticalSuggestion(1918)
g.SeeoltdComjevelzcefIndependelaA fricanStates

AddisAbaba 1-4-2 J6une, rg60",publishedbÿ the Ministry
of Information of the Imperia1 Ethiopean Government"
(1964)
IO. Press ReleaseDelegation of the Unionof South Africa to
the United Nations, November 4, 1953 SOUTH WEST AFRICA

TABLE OF CASESCJTED

r. I~tcrpr~tata'oJ .PeaceTrsaties,AdvisoryOpinion :I.C.J, Reports

1950,p. 65.
z. lntemdalional datus O/ Sowth-West Africa, Advisory Opinion :
I.C.J. Reports1950, p. 128.
3. Soecth-West Africa-Votimg P~ocedure, Advisory Opinion of
June 7th, 1955: I.C.J. Reports 1955,p. 67.
4. Admissibildy of Isearimgsf petitioners b1L Cowamitteeon. Sowth-
West Africa, AdvisoryOpinion of June rst,. 19:6I.C.J. Reports

1956,p. 23.

I. Eastern Carellicase,P.C.I.J., Ser. B, No5 (rg23).
2. German Settiers in Poland casP.C.I.J., Ser. B., No. S (1923).

3. Case of th Maurommatis Palasti%eCoracessions, P.C.I.J., Ser. A,
No. 2 (1g24).
4. Case concerrti.German kterestsin Polish U+$erSbsia, P.C.I.J.,
Ser. A,No. 7 (1926).
5. Inlerpretatim ofthe 1919 Coaventiorton EmPloynsentof Women tat
Nighl,P.C.1,J., Ser:A/B,;Mo.,.~o~(1932).
.-,- c3*:. .-.-;.:-