OBSERVATIONS OF ETHIOPIA AND LIBERIA
4. OBSERVATIONS OF THE GOVERNMENTS
OF ETHIOPIA AND LIBERIA
I
RESUMÉ OF THE PROCEEDINGS
A. On November 4, 1960, the Governments of Ethiopia and
Liberia (hereinafter sometimes referred to as "Applicants") filed
Applications. with the Court to institute proceedings against the
Republic of South Africa (hereinafter sometimes referred to as
"Respondent") for causes stated therein.
B. Pursuant to Orders of the Court, dated January 13, 1961,
fixing April 15, 1961 as the time within which the Memorials were
to be filed, Applicants filed their Memorials on April 14, r96r.
The Memorials are addressed to the dispute between Applicants,
on the one band, and Respondent, on the other, relating to the
interpretation and application of the Mandate for South West
Africa (hereinafter sometimes referred to as the "Mandate"). The
subject ofthe dispute, as set forth in the Memorials, concerns the
continued existence of the Mandate and the duties and performance
of Respondent, as Mandatory, thereunder. Applicants insist that
the Mandate is still in force; that Respondent continues to have
duties thereunder; that the United Nations is the proper super
visory organ to which annual reports and petitions should be
submitted by Respondent; that consent of the United Nations is
a legal prerequisite and condition precedent to modification of the
terrns of the Mandate; and that Respondent has violated and is
violating the terms of Article 22 of the Covenant of the League of
Nations and Articles 2,4, 6, and 7 of the Mandate. The Memorials
further aver that Respondent disputes, and has disputed the above
cc.ntentions, and that such dispute has not been and cannat be
settled by negotiation.
C. Pursuant to Order of the Court dated January 13, 1961,
Respondent was allowed until December rs. I96I within which to
file its Counter-Memorial. On November 30, 1961, Respondent
filed Preliminary Objections which aver that Applicants "have no
locus standi in these contentious proceedings and that the Honour
able Court has no jurisdiction to hear, or adjudicate upon, the
questions of law and !act raised in the Applications and Memorials."
D. These Written Observations and Submissions are respect
lully submitted by Applicants to the Court, pursuant to Order of
the Court dated December 5, 1961. Applicants submit herein, as
they have submitted in their Memorials, that in so far as they were
Members of the League of Nations at the time of the League's
dissolution, are Members of the United Nations and have a dispute
with Respondent concerning the interpretation and application SOUTH WEST AFRICA
of the Mandate, and inasmuch as such dispute has not been and
cannot be settled by negotiation, the Court has jurisdiction pursuant
to Article 7 of the Mandate and Article 37 of the Statute of the
International Court of Justice, to hear and adjudicate the questions
of law and fact raised in the Applications and Memorials.
\ OBSERVATIONS OF ETHIOPIA AND LIBERIA
II
INTRODUCTION
Respondent has included in its Preliminary Objections much
introductory and. other material which Respondent apparently
considers relevant to the question of jurisdiction, which is the
subject-matter of its Preliminary Objections.
Applicants' Observations and Submissions below deal separately
with each of the four Objections to jurisdiction which Respon
dent lodges, namely: (1) the Mandate as an international treaty
or convention is no longer in force: (z)Applicants do not qualify as
"another Member of the League of Nations" within the meaning
of Article 7 of the Mandate; (3) there is no dispute between Appli
cants and Respondent conceming the interpretation and applica
tion of the Mandate within the meaning of Article 7; and (4) if
such a dispute does exist, Respondent denies that it cannat be
settied by negotiation.
Before proceeding to an analysis of each of the four Objections,
however, Applicants respectfully cali to the attention of the Court
sorne general considerations which appear in Respondent's intro
ductory material, and which mark the approach of Respondent to
the case as a whole.
A. SuGGESTED DEPARTURE FROM THE 1950 ADVISORY OPINION
Respondent concedes that in certain major respects its Objec
tions cali for a reversai by the Court of its 1950 Advisory Opinion,
International status of South-West Africa. 1 Two of Respondent's
Objections were unanimously rejected by the Court in the Advisory
Opinion of 1950. The Court held that the Mandate, including
Article 7, has not lapsed. 2 The Conrt furthermore held that it
remains 3pen for States to invoke Article 7 in accordance with its
terms. Respondent's remaining Objections herein were not in
issue before the Court in 1950, and accordingly were not then
considered.
Respondent contends, however, that even though it made oral
and written submissions to the Court during the Advisory proceed
ings, nevertheless those proceedings were marred by "lack of
presentation, or of adequate presentation, to the Court of materjal
information of vital importance, factual and otherwise."'
1
2 Respondent's Preliminary Objections214·
International status of South-West A/rica, Advisory Opinion: I.C.J. Reports
1930Id.at 138. 143·
4 Respondent's Preliminary Objections, p. 215·420 SOUTH WEST AFRICA
Respondent, however, advances no valid reason why the Court
should depart from its prior unanimous rulings. Indeed, as is more
!ully shown below, Respondent's basic contention is the same as
that submitted to the Court in 1950, and it suffers from the same
fundamental defect: the inherently illogical and inequitable thesis
that the Mandate lapsed with the dissolution of the League of
Nations, relieving Respondent of its obligations under the Mandate
instrument, yet at the same time leaving Respondent with all its
rights and powers over the mandated territory, free of inter
national accountability.
Chapter IV of Applicants' Memorials analyzes the legal conse
quences of antecedenf Advisory Opinions. Nothing in the Preli
minary Objections refutes Applicants' submission based on that
analysis. For the convenience of the Court, the relevant excerpt
1
from the Upper Silesia case, quoted in the Memorials, is repeated
here. The Court said:
"As regards Article 5 of the Polish Law of July 14th, 1920,
Poland daims to have acquired, free from ali charges, the property
mentioned in Article 256 of the Treaty of Versailles.
"This question has aJreadybeenconsidered bytM Courl in its Advisory
Opinion No. 6 [German Settlers in Poland.J ... Nothing has been
advanced in the course of tM present proceedings calculated to alter tM
Court's opinion on this point."(Italics added.)
Applicants' submission is likewise repeated for the Court's
convenience:
"Judicial and scholarly precedent and the viewsand practices of
States confirm and support the practice of the Permanent Court
in Upper Silesia wherein the Permanent Court stated that it had
already ruled upon an issue in an advisory proceeding and then
reaffi.rmedthat ruling when the same issue arose in the contentious
proceeding. ·
"lt is respectfully submitted that in the present case,the Court
should similarly reaffirm the advisory opinion it delivered in 1nter
national status of South West Africa." •
B. SUGGESTED DISTINCTION BETWEEN THE MANDATE AS A REAL OR
OBJECTIVE INSTITUTION AND THE MANDATE AS A TREATY OR
CONVENTION
Respondent contends !hat there is a distinction between the
Mandate as a "real" or objective institution and the Mandate as
a treaty or convention. • Respondent argues that the Mandate as
1
Case Concerning German Intef'ests in Polish Upper Silesia, P.C.I.J., Ser. A,
No1 7, 1926.
Id.at 31.
s Memorials, p.103.
' Respondent'sPreliminary Objections,214. OBSERVATIONS OF ETHIOPIA AND LIBERIA 421
a "real" or objective institution may have survived the dissolution
of the 1eague, but that the Mandate as a treaty or convention has
lapsed. Respondent thus attempts to distinguish between the
term "Mandate" and the phrase "lapsing of the Mandate," inti
mating that Respondent may legitimately continue to administer
the mandated territory,' without, however, being subject to the
enforceable international obligations of the Mandate instrument.
The suggested distinction apparently relies heavily on Sir Arnold
McNair's Separate Opinion in International status of South-West
8
A/rica. Judge McNair in fact employed the concept of a "real"
or "objective" status of the Mandate to demonstrate that "the
international status created for South-West Africa, namely that
of a territory governed by a State in pursuance of a limited title
as defined in a Mandate, subsists." • Judge McNair concluded that
"the Mandate, which embodies international obligations, belongs
to the category of treaty or convention ... and I have endeavoured to
show that the agreement between the Mandatory and other Mem
bers of the League embodied in the Mandate is still 'in force'."
(Italics added.) •
Whether the Territory of South West Africa would have a
special status in international law even if the Mandate instrument
had "lapsed" is not a question before the Court in these cases.
The question before the Court is whether Respondent's duties under
the Mandate instrument continue to exist, that is to say, whether
Respondent's administration of the mandated territory which is
based on the Mandate instrument is free of the obligations pre
scribed in that instrument.
The term "Mandate" must include Respondent's duties as
defined in the Mandate instrument, since a fundamental concept
underlying "Mandate" is accountability in the manner prescribed
in the instrument. The Advisory Opinion of the Court clearly
confirms the Court's acceptance of this basic proposition.
C. RESPONDENT's HrsTORICAL ANALYSIS
Respondent has set forth its own account of the events leading
up to the creation of the Mandate and the events which transpired
thereafter. ·
Applicants in their Memorials have described in extenso what
they submi t is a fair açcount of the relevant historical facts. This
account has not been materially altered in Respondent's version.
One point raised by Respondent may, however, merit reference.
1 Ibid.
~ See Respondent'sPYeliminary Objectiop. 317.
1 Separate Opinion by Sir Arnold 1\lcNaiInternational stalus of South-West
Aj,-ica,dvisory Opinion: I.C.J. Reports 1950, pp. q6-163.
4 Id.at 158.422 SOUTH WEST AFRICA
Respondent's views concerning the origin and nature of the
Mandates System, heavily emphasize statements, such as that
of Margalith (quoted by Respondent at p. 10 of its Preliminary
Obfections), that the "C" mandates were in practical effect not
far removed from annexation. If Respondent thereby intends
to create the impression that it is legally entitled to annex
South West Africa, it is in error, and is repudiated by its own
representatives and by the very writers whom Respondent quotes
to contend that the Mandate was not far removed from annexation.
Thus, Margalith, in the work cited by Respondent, states:
"Do the same pr.inciplesunderlie ali the three categories [A, B,
and C Mandates], or are these principles different as to each class?
This question has already been partiy answered, but it is of sufficient
importance to need further CO:Q.sideratioant this place. It can hardly
beover-emphasized thal the concepts oftrust, guardianship, and mandate
are çzthe basis of all themandates, irrespective of what classa territory
may belongto.ln otherwords, no matter howlimited may bethe'powers
of a Manda tory in a territory of the A group, or how wide they may be
in the territory of the C group, they are both applications of one and
the same idea." (Italics added.) •
M.Rappard, whornRespondentalsocitesat p. 221of itsPreliminary
Obfections, stated in 1925, that it was not for the white. minority
in a mandated territory to declare when the moment had arrived
for the territory to be able to stand alone. It would be contrary to
the spirit of the arrangement, he said, if, upon the demand of sorne
ten thousand settlers, a mandated territory were, in fact, to be
incorporated with the terri tory of the mandatory Power. 2 Tem
perley, who seemingly questioned the wisdom of placing South
West Africa under mandate, nevertheless recognizes, in the same
quotation offered by Respondent, that "a general application of
the [Mandates] system was insisted upon." 3 Finally, Mr. Smit,
High Commissioner for the Union of South Africa and its accredited
Representative to the Permanent Mandates Commission, stated
that "the inclusion of South- West Africa in the Union could only
come about as the result of a Treaty between South-West Africa, as
an independent Government, and the Government ofthe Union;"'
and the South African representative to the San Francisco Conference
of 1945 on the United Nations Charter conceded that. annexation
would be contrary to the principles of the Mandate, so long as the
Mandate survived. He stated: "There is no prospect of the territ ory
ever existing as a separate state, and the ultimate objective of the
Mandatory principle is therefore impossible of achievement. The
1 Margalith, A. MThe International MandatesJohns Hopkins Press, Baltimore,
1930, pp. 95-96. . ·
s· Permanent Mandates Commission, Minutes of Sixth session, p. 6o.,
1 See Respondent'sPreliminary Objectionp. 222.
' Permanent Mandates Commission, Minutes of Sixth session, p. 59· OBSERVATIONS OF ETHIOPIA AND LIBERIA 423
Delegation of the Union of South Africa therefore daims that the
Mandate should be terminated and that the territory should be
incorporated as part of the Union of South Africa." 1
Respondent also stresses the politica!. compromises which
occurred in fashioning the Mandates System. Applicants do not
conceive it material to the instant cases to argue the extent to
which the Mandate arase from compromise. Nearly ali agreements
arise from compromise. The essential fact is that Respondent
agreed to certain terms in accepting the Mandate, and continues
to exercise the Mandate.
Respondent's reasoning on pages zr6-223 of the Preliminary
Objections is not susceptible of clear interpretation. On the one
hand, Respohdent asserts that "Respondent accepted the obligations
which the Mandate for South West Africa involved for it; and it
has always regarded compliance with those obligations as being
a matter of importance-according to their letter and spirit during
the lifetime of the League, and according to their spirit thereafter." 2
On the other hand, Respondent asserts that Applicants' comment
that "The Mandate System, as ultimately given expression in
Article 22 of the Covenant of the League of Nations and in the
severa! Mandate Agreements, represented a victory for the oppo
nents of the principle of annexation," and other statements of a
like nature, are mere "attempts at the unilateral imposition upon it of
suggested dulies which were excluded from those undertaken, and
which would amount to a repudiation of the compromise whereby
Respondent was induced to agree to the Mandate System being 3
rendered applicable at ali to the case of South West Africa."
Either mandatories were permitted to annex mandated terri
tories, or they were not. There was no provision for annexing the
mandated terri tories just a little bit.
The Council of the League, the Permanent Mandates Commission,
the United Nations, the International Court of Justice, and scholarly
authority ali unite in agreeing that the Mandates System does not
permit annexation of territories under "C" mandate. Far from
bestowing the right of annexation, the Mandate affirmatively
imposes the duty to guide the people of the mandated territory
toward political maturity which will enable them to determine
their own political destiny. Such a duty is the very raison d'être
of the Mandates System. As the Court stated in the Advisory
Opinion, in regard to South West Africa, the principle of non
annexation was one of the two principles considered to be of
"paramount importance" in establishing the Mandates System. '
Renee, it is difficult to evaluate Respondent's motive or reasoning
1 See Respondent'sPreliminary Objectiopp. 237-238.
:. Respondent'Preliminary Objectionp. 223.
3 Ibid.
'Internationalstatus of South-West A/riAdvisory Opinion: I.C.J. Reports
t950,p. 128at 131. SOUTH WEST AFR!CA
in characterizing Applicants' argument as a "unilateral imposition
upon it of suggested duties which were excluded from those under
1
taken.''
To repeat Applicants' basic point, if Respondent seeks to imply
that it may unilaterally incorporate the mandated territory either
at once or piece-meal it is in error. If Respondent's argument on
pageszr6-223of the Preliminary Objections is intended toconvey a
different meaning, the legal consequences of such a meaning have
not been spelled out by Respondent, and therefore the argument
has no relevance.
l Respondent's PrditNinary Objections.UJ. OBSERVATIONS OF ETHIOPIA AND LIBERIA
III
ARTICLE 7 OF THE MANDATE IS A
"TREATY OR CONVENTION IN FORCE"
Respondent concedes that Article 7 of the Màndate was a treaty
or convention in force while the League of Nations was in existence,
but contends that the dissolution of the League caused such treaty
or convention to "lapse." 1
Respondent's contention is directly contrary to the Court's 1950
Advisory Opinion in which the Court ruled:
"According to Article 7 of the Mandate, disputes between the
mandatory State and another Member of the League of Nations
relating to the interpretation or the applicationof the provisions of
the Mandate, if not settled by negotiation, should be submitted to
the Permanent Court of International Justice. Having regard to
Article 37 of the Statute of the International Court of Justice, and
Article 8o, para/P"aph 1, of the Charter, the Court is of opinion
thal this clause m the Mandate is still in force and thal, therefore,
the Union of South Africa is under an obligation to accept the
compulsory jurisdiction of the Court according to those provisions.''
Respondent contends that the Court's jurisdiction was not in
issue in the 1950 Advisory Opinion,• that a de novo consideration of
Respondent's contention is in any event required, and that such
de novo consideration would support its theory that Article 7 is not
in force.'
A. RESPONDENT's REQUEST FOR REVERSAL IS NOT
WELL-FOUNDED
The question whether Article 7 is in force, as a treaty or conven
tion-the subject of Respondent's First Objection-was at issue in
the 1950 Advisory proceedings. The Court was requested-by the
General Assembly to render an opinion on the Question, intéralia,
"Does the Union of South Africa continue to have international
obligations under the Mandate for South-West Africa and, if so,
what are those obligations?"' In response to the Question, the
Court held that Respondent "is under an obligation to accept the
compulsory jurisdiction of the Court according to those provisions
1 Respondent'sPreliminary Objectionp. 299.
International slatus of South-West A/riAdvisory Opinion: I.C.J. Reports
1910, p. 128at138.
Respondent'sPreliminary Objections, 215.
1 Ibid.
1950, p. 128 at 131.l statu.>of South-West AA4yisory Opinion: I.C.J. Reports
28 SOUTH WEST AFRICA
[the provisions of Article 7]," 1 despite argumentation on the point
2
by Respondent.
Respondent's additional contention, mentioned above-that the
Court should in any event engage in a de nova inquiry and reverse
its previously announced decision-likewise is untenable. It implies
the existence of newly discovered evidence or newly invented theo
ries sufficient to justify so unprecedented a repudiation by the
Court of its prior unanimous holding.
In fact, Respondent asserts no new facts or theory which bear on
Article 7· Its contention is exactly that advanced by it in rgso
before the Court, and which the Court rejected, namely, that the
dissolution of the League caused its obligations defined in· the
Mandate instrument to lapse.
In rgso, Respondent advanced the dissolution of the League as
the premise of an argument that the Mandate instrument, being
essentially a contract similar to "mandate" in private law, went
out of existence and ail legal rights and obligations under the
Mandate were extinguished because one of the two parties to the
contract disappeared. 3 Now, in its Preliminary Obiections, alter
the verbiage is stripped away, Respondent's argument remains the
same:
"... the substantive obligations lapsed insofar as they were con
tractual obligations owed to other international persans: they
could not be owed to a non-existent League; and insofar as they
may have been intended to be owed to States, they were not
covenanted to be owed to any States not Membersof the League:
Moreover, if the League had been a legal persona which could
have been a party to a treaty or convention, it ceased to be so on its
dissolution and its Members ceased to have the qualification in
consequence whereof they might have been parties.
"Consequently there ceased to be 'in force' a 'treaty or convention':
tlu party or parties with whom tlu agreement hadbeen contracted, feil
away, as welf as the contractual obligations undertaken vis-à-vis them;
and there wereno longer 'provisions' to tlu 'interpretation or application
of which a compulsory jurisdiction clause _could. have reference."
(Italics added.) •
Respondent stiJl views the Mandate ·as a bare contraét. Before;
only the League was the other contractor in Respondent's argument.
Now, the other contractor was either the League or its Members.
In Respondent's view, bath "have !allen away ;". ergo, Respondent
proceeds, there is no contract. Ail !hat Respondent has done in its
more modern version has been to add one more possible contractor
who could have "fallen away" by virtue of the League's disso-
1Id. at138.
11nternational status of South-West Ajrica, Pleadings, ofal ArgUments, Docu-
ments p. 273 at z89-291. ·
1Id. at 277. 278.
• See Respondent'sPf'elimina,-y Objections357-358. OBSERVATIONS OF ETHIOPIA AND LIBERIA 427
lution, in spite of the fact that the Court clearly stated that the
Mandate may not be analyzed as a mere contract. 1
Applicants consider that in the face of a unanimous and explicit
ruling by the Court concerning an issue squarely raised and as to
which Respondent fully participated, it is an imposition upon the
Court for Respondent to present the same basic argument as before,
and at the same time propose a de nova consideration.
B. MISCELLANEOUS POINTS OF RESPONDENT
Respondent's argumentation in its First Objection is presumably
directed to the question of whether Article 7 of the Mandate is in
force, since it is Article 7 upon which the jurisdiction of the Court
in the instant cases may be sai<!to rest. Nevertheless, in its First
Objection Respondent discusses numerous other points as weil, indu
2
ding: its dut y to submit to the supervision of the United Nations, its
duty to submit petitions from the inhabitants of the Territory, 3and
the international status of the Territory. • Indeed, in its First
Objection, and throughout its Preliminary Objections, Respondent
disputes, under the heading of Preliminary Objections, ali the alle
gations in theM emorials except those dealing with certain substan
tive violations of the Mandate.
It is only the question of whether Article 7 is in force, as is sho)VII
below, which, among the numerous matters discussed by Respon
dent in its First Objection, is relevant to jurisd.iction, and Applicants
therefore do not propose at this time fully to treat ali of those
matters. Nevertheless, comment on two subjects raised by Respon
dent is necessary for purposes of clarity.
I. Respondent's conclusion thal it may continue to administer
the territory without any duty to report and account
First, Respondent erroneously seeks to give the impression that
the Majority Opinion distinguished between the Mandate as a "real
or objective" institution and the Mandate as a "treaty or conven
tion." • Applicants have already adverted to this incorrect analysis
6
of the Opinion. Applicants only wish further at this point to locus
upon the self-serving conclusion which Respondent in its First
Objection draws for itself from the suggested distinction. Before,
in 1950, Respondent tried one tack to arrive at the same conclusion:
"The Government of the Union of South Africa would close this
statement by expressing their view that the Territory of South
West Africa falls, at present, under no known category in inter
national law ... It is the considered view of the Government of the
1 InternationalstaJus of South-West Africa, Ad'\'isory Opinion: I.C.Reports
1910, p. 128at 132.
3 Respondent's Preliminary Objections, pp. 312-350.
Id.at 315-316, 321.
5 Id.at 299, 306, 317.
Id.at 299, 306.
• SP.epp. 42o-421. SOUTH WEST AFRICA
Union of South Africa that there is no international legal limitation
upon their competence in respect of the territory and that their
international obligations, arising from the status of the territory,
are to be determined accordingly." 1 The Court was not convinced
by this argument. Now, Rcspondent tries another tack, albeit
without the same amount of explicitness or candour:
"By nature and content,too, the obligation [to report and account]
and the right correlative thereto were of a purely contractual or
'personaJ'nature as distinct from 'real'rights and obligations. The
obligation was not in any way constitutive of the status of the
Territory or of the Mandatory s tillethereto, as might be said of
other aspects of the Mandate System." •
Respondent thus uses its First Objection not only to argue juris
diction, but to attempt to convince the Court that it may continue
to administer the Territory. and yet be free of ali duties to report
and account.
2. Respondent's contentions regarding Article 6 of the Mandate
Respondent also devotes over one-hal! of its First Objection to
the question of whether Article 6 of the Mandate is in force, and, in
so doing, sets forth so-called "new facts" regarding the succession
by the United Nations to the supervisory powers of the League.
Since no other attempt is made by Respondent in its Preliminary
Ob-jections to direct the Court's attention to new factual material of
"vitalimportance", and since, as shown above at pages 425-427, Res
pondent's legal theories are in substance thesameasthoseadvanced
by it before, presumably the above-mentioned "new facts" consti
tute the "material information of vital importance" upon which
Respondent urges de novo consideration by the Court of the juris
dictional issues involved in the instant cases.
Respondent fails to indicate, however, what relevance the
question of United Nations supervision has to jurisdiction, which
is the soleissue in these preliminary proceedings. Respondent does
not appear to make the argument that because, in its opinion,
Article 6 is not in force, Article 7 is not in force. Indeed, such an
argument would be untenable.
The question of whether the United Nations has succeeded to
the supervisory powers of the League vis-à-vis the Mandate is not
dispositive of the question whether there are States competent to
invoke Article 7 of the Mandate. This point may be illustrated by
referring to the Separate Opinions of Judges McNair and Read.
Both Judges found that Article 6 is not in force in the sense that,
in their view, performance thereof is not now possible..But both
.Tudge McNair and Judge Read hastened to add and to emphasize
1 Iniernational status of South-West A/rica, Pleadings, Oral Arguments, Docu
ments, p. 72at83-84.
1 Respondent's Preliminary Objectiop.317. '.'
OBSERVATIONS OF ETHIOPIA AND LIBERIA
429
that the Jack of administrative supervision does not leave Res
pondent free from international accountability, and bath held that
such accountability may be achieved through the compromissory
clause, Article 7, which they explicitly found to be in force.
There is a certain interconnection between Articles 6 and 7, but
it is not one which Respondent will wish to recognize.
Both the Majority and the Minority in the 1950 Advisory Opinion
held that the Mandate instrument did not lapse with the disso
lution of the League. They found that the Mandate instrument
endures because its purposes have not yet been achieved. They
stressed, in this connection, that the Mandate instrument created
an international régime, which affords the instrument a vitality
gieater than that possessed by an ordinary contract between two
States. Judge McNair also found an analogy to trust and tutelle
instructive on the same point. Having achieved this common
understanding, the Majority and Minority then divided on one
question: succession of the United Nations to the League's super
vision of the Mandate. The Majority found that there had been an
automatic succession; the Minority did not agree. Although the
Minority held that the instrument of Mandate continues in exis
tence, in declining to employ the doctrine of succession, Judges
McNair and Read held that Article 6 could not be enforced only
for the mechanical reason that there is no Council of the League to
which Respondent could report. Both Majority and Minority held,
however, that Article 7 is in force. In this connection, Judges
McNair and Read found no mechanical problem since Members
of the League at the time of its dissolution clearly continue in
existence.
The interconnection, then, between Articles 6 and 7, is this:
according to the Majority view of Article 6, Applicants have stand
ing to invoke Article 7 by virtue of membership in the United
Nations; according to the Minority view of Article 6, Applicants
have standing by virtue of membership in the League at the time
of the League's dissolution.
The above discussion is developed in full in the next Chapter;
mention of it is made here, however, to indicate that although
there is an interconnection between Articles 6 and 7. such inter
connection is not the one on which Respondent bases its lengthy
discussion of Article 6. In fact, as shawn above, Respondent does
not indicate how Article 6 is relevant to Article 7 at ali. Since
Respondent has nevertheless devoted more than thirty-five pages
to the question of United Nations supervision, Applicants will
comment thereon to the extent of clearing the record, reserving for
subsequent proceedings a more complete discussion on the merits.
Respondent admits that it is the Mandatory's duty to report and
1
account which distinguishes a mandate from a self-limiting trust.
1 Id.at314. 430 SOUTH WEST AFRICA
Nevertheless, although it continues to administer the Territory,
and avers that it has the legitimate right to do so, it contends that
it has no duty to report and account. It is this illogical and inequit
able proposition which the Court was unwilling to accept when it
held that Respondent has the duty to report and account to the
United Nations 1; when it did so, it did no more than apply the
principle of giving effect to a basic international instrument which
has as its purpose more than mere contractual relations between
two entities, but which creates an international institution-a
sacred trust. The Court employed the same type of legal reasoning
that a municipal court would employ if it were faced by the con
tention of a trustee or tuteur that his duty to account had "lapsed."
The Court furthermore found, for purposes of confirmation, that
the League of :-ations relied on declarations of Mandatories, includ
ing Respondent, that theywould continue to honour their obligations
as manda tories; and that neither the League nor the United Nations
intended the'obligations of mandatories to disappear without their
being replaced by new obligations under trusteeship agreements. •
The Court did not reach its conclusions by a narrow margin. The
vote on the question of succession was twelve votes in favor of,
and two votes against, the view of the Majority. 3
Now, Respondent sums up a long exposition by stating that:
"It seems quite evident that, with knowledge of certain crucial!y
important facts that were not placed before the Court in 1950,the
Court could not possibly have arrived at these conclusions by in
ference." •
Respondent's contention is advanced with little gTaceor merit.
First, not one of the so-called "new facts" has come into existence
since igso. Respondent had full opportunity to develop at length
each and every one of them during the Advisory proceedings.
Second, not one of the so-called "crucial new facts" is in reality
either new or crucial. Each one of them was before the Court in
I950, and, obviously, was not deemed crucial. Thus, in regard to
the four fact4 which Respondent deems to be "of particular im
portance" :
(r) Respondent's statement that it made an "express reser
vation" at the San Francisco Conference which "rendered quite
clear that there was on Respondent's part no tacit agreement to,
, or acquiescence in, Trusteeship under or supervision by the United
Nations" • refers • to Respondent's statements at the San Francisco
Conference that it intended not to enter into a trusteeship agree-
1
Internationastatus of South-West Africa,Advisory Opinion: I.C.J. Reports
1910, p. 128 at IJJ, IJ6.
1 Id.at IJJ-137·
• Respondent's Preliminary Obiections, 345·
1By virtueof p. 345. n.1,of Respondent's .Preliminary Objections. OBSERVATIONS OF ETHIOPIA AND LIBERIA 43I
ment, but, rather, intended ta seek incorporation of the territory.
The same point was covered in Respondent's Written Statement
·presented ta the Court during the Advisory proceedings:
"White still a mandatory Power, the Union of South Africa had, at
San Francisco, on May 7, 1945, circulated a document ... making
·known its view 'that the mandate should be terminated and that the
territory should be incorporated as part of the Union of South
Africa'. That view was repeated in essence at the final meeting of
the League of Nations . .. The Union Government, on bath occasions,
clearly indicated their policy of incorporation of the territory, if its
peoples so desired. Both the United Nations and the League of
Nations were aware of this, of the fact that the mandates system
wouldterminate upon the dissolution ofthe Leagueand that the Union
1
of South Africa did not intend to submit a trusteeship agreement."
(2) Respondent's statement concerning the alleged rejection by
the Preparatory Commission of its Executive2Committee's proposai
for a Temporary Trusteeship Committee was covered in substance
by its Written Statement in rgso:
"rs. Nor has the United Nations regarded itself as the legalsucees
sor ta the League. The Executive Committee which sat in London
from r6 August to 24 November, 1945, and which had, as one of
its tasks, the drawing up of recommendations to the Preparatory
Commission on the transfer of certain functions of the League to the
United Nations, had accepted the idea of a total transfer of the
League's functions and assets to the United Nations, subject to
exceptions and without prejudice to future action. Although such
a total transfer was not finally recommended, the language ap
propriate to a legal succession appeared in the report and recom
mendations. The report was repudiated·by the Soviet Delegation
on the ground that it made the United Nations appear to be the
successor in law to the League. The proposais finally adopted by
the Preparatory Commission avoided the suggestion of a 'transfer'
of functions and spoke of the 'assumption' by the United Nati3ns of
'certain activities' previously exercised by the League."
The Court knew that the functions of the League in respect ta
mandates had not been expressly transferred ta the United Nations
and was aware of the fact that other transfers from the League ta
the United Nations had occurred. Neither of these facts was regarded
as crucial.
(3) Respondent's ..statement concerning the original Chinese
2
proposai is also not weil taken. The facts concerning the
1Statement Submitted by the Gvvernment of the Union of South Africa,
International stalus of South-West A/rica, Pleadings, Oral Arguments, Documents,
p.172 at 77. 78.
1 Respondent's Preliminary Objectionsp. 345·
Statement Submitted by the Govemment of the Union of South Africa,
Internalional status of South-West A/rica, Pleadings, Oral Arguments, Documents,
p. 72 at 75·432 SOUTH WEST AFRICA
Chinese proposai were before the Court in 1950, in the Writ1
ten Statement of the United States of America. Moreover,
even if it had been previously unaware of the Chinese proposal,
which is doubtful, Respondent was informed thereof by the Written
Statement of the United States weil in advance of the oral pro
ceedings, but chose not to comment on it explicitly at the pro
ceedings.
The Chinese delegate to the Fourth Committee has placed
Respondent's contention in its proper perspective:
"Mr. Liu (China) observed !hat the South African representative
had stressed the draft resolution submitted to the Leagueof Nations
by the Chinese delegation; he feared !hat !hat representative's re
marks might create a wrong impression in the Fourth Committee.
The resolution finally adopted by the League did not, it was true,
contain any speèificprovision for the transfer of supervisory func
tions, but neither did it forbid such transfer. In view of the im
portance of !hat point, he wondered why the South African Govem
ment had not considered it earlier but had waited until the advisory
opinion of the Court had been discussed in the Fourth Committee.
who had represented his Govemment at the deliberations
Dr. Steyn,
of the International Court of Justice, could have raised the question
at the time.
"The Chinese delegation was therefore unable to accept the
argument that the Court had been ignorant of the facts•."
Now, Respondent daims that the Court could not conceivably
have arrived at its conclusions in the Advisory Opinion had it been
aware of the Chinese proposai, inter alia.• As a matter of !act, the
Court obviously did not find the facts concerning the Chinese
proposai crucial, and had good reason therefor, as is demonstrated.
by the following section from a League Report which is quoted in
the United States Written Statement:
"Following upon a number of statements in plenary sessionof the
Assembly with re~ar td the future of the territories now held
under mandate, th1s subject was but briefly discussed by the First
Committee. Attention was drawn by the delegate of China to the
!act,that although the Charter of the United Nations-in particular
by the establishment of an international trusteeship system-em
bodied principles ciiiTespondingto those of the mandate system,
it made no provision for assomption by the United Nations of the
League'sfonctions under !hat system as such. The continued appli
cation to the mandated territories of the principles laid dawn in
the Covenant of the League was a matter on which the Assembly
would wish to be assured. The First Committee took note of the
!act that ail the Membersofthe Leaguenowadministerin(: mandated
territories bad expressed their intention to continue, notw1thstanding
1
Written Statement of the United Statesof America, IntemaJionalstatus of
South-West A/rica,Pleadîngs, Oral Arguments, Documents. p. 85 102.
Committee,rU.N.asDoc. No. A{C.4/SR.196 at 364-365, paras. 63-(1g;o).ourth
a Respondent's PreliminaryObjections, 346. OBSERVATIONS OF ETHIOPIA AND LIBERIA
433
the dissolution of the League, to administer these territories for the
well-being and development of the peoples concerned in accordance
with their obligations under the respective mandates, until other1
arrangements were agreed upon with the United Nations."
(4) The fact that Respondent finds the views of States expressed
in a Report on Palestine to be crucial is surprising in light of Res
pondent's argument before the Court in 1950:
. "As a corollary, apparently·, to the proposition that the manda
tories and the Members of the League never intcnded the mandates to
lapse, the Court's attention is also drawn, in the Written Statement
of the United States, and also in the oral statements, to the fact
that certain Members of the United Nations, and also the United
Nations itself in certain resolutions, have. accepted the continued
existence of the mandates. Now that again, Mr. President, does not
seem to take the matter any furthcr. In fact, 1 /ind it ditficttlt to
understand why these views are referred to at al! in this connexion.
At the most, they are mere expressions of opinion. These expressions
of opinion cannat change the realities of the lef.ralsituation. They cannat
make new law." (ltalics added.)'
The facts cuncerning the Palestine Mandate were discussed by
Sir Arnold McNair in his Separate Opinion, 3 and, presumably,
were known to his colleagues on the Court as weiL The Report of
the Special Committee on Palestine was also noted in the afore
mentioned Written Statement of the United States. •
Further, if the views of States are now to be considered relevant,
due weight will undoubtedly be accorded to the views of the over
whelming number of United Nations Members, which have re
peatedly taken the position that Respondent as Mandatory is
accountable to the United Nations. 5
To sum up, the Opinion of the Court regarding Respondent's
duties to report and account to the United Nations is not affected
by Respondent's so-called "new facts". These facts are neither new
nor crucial. The Court considered them, as weil as the other pertinent
facts, and arrived at its conclusion. Respondent merely disagrees
with that conclusion.
C. ARTICLE 7 JS IN FORCE
When the argument in the First Objection relating to jurisdiction is
finallydistilled it is this: Respondent argues in its First Objection, and
reargues in its Second Objection, thatApplicants do not hold anyrights
1
'Vritten Statementof the United States of America International status of South
West Africa, Pleadings,Oral Arguments, Documents, p. 85 at 102.
3 Statement of the Union of South Africa, Id. at z8o.
Separate Opinion by Sir Arnold McNaîr, Internationalstatus of South-West
A/rica, Advisory Opinion: I.C.j.Reports 1950, p. 146 at 157.
1 Page 134 of the Statement.
See, for example, U.N. Gen. Ass. Off. Rec. 5th Sess., Supp. No. zo at 55
(A/1775) (1950); U.N. Gen. Ass. Off. Rec. 6th Sess., Supp. No. 20 at 63 (A{2119)
(1952); U.N. Gen. Ass. Off. Rec. 8th Sess., Supp. No. 17 at 26 (A/2630) (1953).434 SOUTH WEST AFRICA
under Article 7because with theformal dissolution ofthe League, they
are not, in Respondent's view, "another Member of the League of
Nations." Respondent correctly recognizes one crucial point in this
contention, which is that it would be quite meaningless to state
that ArtiCle 7 is still in existence, but that there are no States
competent to invoke it.
Respondent's contention that no States, including Applicants,
have rights under Article 7 is deal! with by Applicants in the
next Chapter. Applicants there cite the Court's unanimous hold
ing that Article 7 is in force and the necessarily logical corollary
of thal holding, emphasized by Respondent as weil, that if Article 7
is in force, there must be States competent to invoke it. Applicants
submit respectfully that their citation of the Advisory Opinion and
their analysis of the soundness thereof in the next Chapt er of these
Observations refute Respondent's contention,. and establish that
there is jurisdiction in the instant cases.
Applicants consider, nevertheless, that the effect of the disso
lution of the League on the Mandate should be considered in a
context broader than that so rigidly and narrowly conceived by
Respondent.
In order that Applicants' and Respondent's contentions may be
viewed in a suitably broad perspective, Applicants set forth certain
general observations believed relevant to a practicable, just and
legally inescapable conclusion.
The Mandate is an "international regime;" 1 it is "an interna
tional institution with an international object-a sacred trust of
civilization.••.oz
Treaties or conventions which create an international regime have
a permanency and vitality beyond that of the ordinary treaty or
convention, which may establish a mere contract right between two
States. Such a character of durability applies with special force to
Mandate instruments, as was pointed out by the late judge
Lauterpacht in the Petitioners case. 3Judge Lauterpacht wrote:
"However, this is not a case of a contract or even of an ordinary
treaty analogons to a contract. As already pointed out, this is a
case of the operation and application of multilateral instruments, as
interpreted hy the Court in its Opinion of II July 1950,creating an
international status---;-an international régime-transcending a
mere contractual relation (I.C.J. Reports 1950, p. 132). The essence
of such instruments is thal their validity continues notwithstanding
changes in the attitudes, or the status, or the very survival of individual
parties or persans a(jected. Their continued validity implies their
continued operation and the resulting legitimacy of the means
1 Internationalslatus of South- West A/ricAdvisory Opinion: I.C.J. Reports
1950, p. 128 at 131.
~ Id.at 132.
3 Admissibililyof hearüzgs of petitioners by the Committee on South-West Africa,
Advisory Opinion of June rst, 1956: I.C.J. Reports 195G, p. 23. OBSERVATIONS OF ETHIOPIA AND LIBERIA 435
devised for that purpose by way of judicial interpretation and applic
ation of the original instrument."(Italics added.)1
As discussed herein, Respondent attempts to distinguish between
the Mandate as a "real" or objective institution and the Mandate
as a treaty or convention. Respondent does not attempt to analyse
the difference between the two; nor does it attempt a definition of
either. It merely draws its own conclusions from the· alleged dis
tinction, as shawn above on pages 427-428.
Applicants have pointed out that the instant cases pertain to the
duties of Respondent asset forth in the Mandate instrument, and that
the Court in its Advisory Opinion found such duties in force. To
clear up an ambiguous and vague implication of Respondent that
somehow certain undefined duties arising from status may have
survived the League's dissolution, but none arising from treaty or
convention has survived, 2 Applicants respectfully reiterate the
point that it is the Mandate instrument-a treaty or convention
which defines Respondent's duties. It is to that instrument that the
Court looked, holding that the terms of the Mandate are still in
force, including Articles 6 and 7 thereof. The Court did not, as
might be inferred from Respondent's ambiguous language, hold that
only in an objective or "real" sense did the Mandate survive. The
Court found that the Mandate is an international regime, and Judge
McNair found that it has acquired a "real" or objective status. But
the pertinency of this judicial analysis is !ost on Respondent: the
Mandate instrument, which created an international regime or a
status, survived the dissolution of the League as a treaty or con
vention because, to repeat the words of Judge Lauterpacht, "the
essence of such instruments is that their validity continues not
withstanding changes in the attitudes, or the status, or the very
survival of individual parties or persans affected."
Applying the concept of international regime to the Mandate, it
is apparent that the terms of the Mandate instrument, without
which there is no effective international control and, bence, no
Mandate, continue in existence .despite the League's dissolution.
Since the purposes of the Mandate have not yet been achieved, and
since the Mandate has not been legally terminated, the terms of th"
Mandate continue in force.
Technical difficulties appear in fully applying the analogies of
trust and tutelleto mandates. Nevertheless, severa! scholars have
found such analogies helpfulin analyzing the nature of the Mandates
System, 3 and Applicants believe that certain basic and fundamen-
1 Id.at 48.
1 See Respondent'sPreliminary Objectionsp. 299.
1 See, e.g.,Brierly, J.L., "Trusts and Mandates," The British Yearbook of
International Law1929, pp. 217-219; Margalith, A. The International Mandates,
Johns Hopkins Press, Baltimore, I9Jo, pp. 36-45; Separate OpinbynSir Arnold
MeNair, International status of South-West A/Advisory Opinion: I.C.J. Reports
1950, p. 146 at qS-149. SOUTH WEST AFRICA
tai principles underlying both institutions are relevant to the issue
under consideration.
The feature of trust and tutelle which Applicants stress is that
both rest upon specified duties undertaken by a fiduciary. In a
broad sense, agreement on the part of the fiduciary is a necessary
element in the structure of both. The trustee agrees to abide by the
terms of the trust instrument; the tuteur or curateur makes a promise
and takes an oath to abide by the terms of the law governing his
duties. Yet a trust and a tutelle are more than mere agreements, and
they have a permanency which endures until their purposes have
been fulfilled or they have been legal!y terminated. Their endurance
presupposes that the terms of the fiduciary's undertaking endure.
To state this elementary principle in another form, a fiduciary's
agreement which effectua tes a trust or tutelle has a permanency and
vitality greater than an agreement which forms a mere contractual
relation. In respect to both trust and tutelle the law is universally
applied in such manner as to give effect to the fiduciary's under
taking, express in the case of trust, and implied by law in the case
of tutelle, whether or not any mere "mechanical problems" present
themselves in terms of changed personalities or conditions.
Similarly, duties undertaken by a Mandatory in a Mandate
instrument do not simply disappear. International law is applied to
give effect to those duties, and the Mandate endures until its
purposes have been achieved, or until it is legally terminated, i.e.
until the United Nations gives its prior consent to a modification or
termination of the Mandate, a proposition lully recognized by
Respondent when in 1946 it unsuccessfully sought the consent of
the United Nations to incorporate South West Africa.
In conclusion, Applicants submit that Article 7 is a treaty or
convention in force, and, as will be developed extensively in the
next Chapter, that they are competent to invoke Article 7· OBSERVATIONS OF ETHIOPIA AND LIBERIA 437
IV
EACH APPLICANT MUST BE CONSIDERED TO BE IN THE
CATEGORY OF "ANOTHER MEMBER OF THE LEAGUE OF
NATIONS", WITHIN THE MEANING OF ARTICLE 7 OF THE
MANDATE
Respondent, in its Second Objection, contends that "because
Applicants are not Members of the League of Nations the aileged
dispute is not with 'another Member of the League of Nations'.··
(Preliminary Objections,P: 361.) The essence of Respondent's argu
ment appears to be that provisions of the Mandate instruments
were "available to Members of the League only," that a State
which ceased to be a League member "!ost its legal interest in the
administration of the Mandates," and that the dissolution of the
League having automaticaily terminated ail League memberships,
Applicants are no longer entitled to invoke Article 7· (Preliminary
Objections, pp. 364-367, passim.)
The conclusion, which is obviously the key to Respondent's
whole argument, is not set forth by Respondent with explicit
candour. On the contrary, it is implied by indirection, notably
through repeated use of the phrase "termination of membershi p"
(e.g., p. 364).
It is submitted, however, that Respondent's interpretation of the
phrase, "another Member of the League of Nations," misconceives
the purposes of Article 7, ignores the importance of judicial super
vision, and is inconsistent with the prior decisions of this Court,
as weil as with scholarly authority and the admissions of Respondent
itself beforethe United Nations.
A. JUDICIAL, SCHOLARLV AND OTHER AUTHORITV
The Majority Opinion in the 1950 Advisory Opinion, as weil
as the Separate Opinions of Judges Sir Arnold McNair and Read,
support the contention of Applicants that each must be considered
to be "another Member of the League of Nations" for the purposes,
and within the meaning of, Article 7 of the Mandate. If this con
tention were not sustained, no State would be presently qualified
to invoke Article 7, and judicial supervision would be a nuility.
The Majority of the Court in the Advisory Opinion of 1950 ruled
that the United Nations has succeeded to the functions of the
League, in respect of the Mandate, and that Article 7 is in force.•
1 International status of South-West Advisory Opinion: I.C.J. Reports
1950, p. 128 at 143, 138. SOUTH WEST AFRICA
Sir Arnold McNair and Judge Read, differing with the majority
view concerning United Nations succession to the League's super
visory powers, expressed the opinion that Article 7 is in force, and
that only States which bad been Members of the League at the
time of the League's dissolution are entitled to invoke Article 7· 1
It follows from either the majority or minority analysis that
Applicants are competent to invoke Article 7, and that Respon
dent's contention is inconsistent with the view of every member
of the Court.
r. That Respondent's submission is bath ttntenable and
illogical is clearfrom a consideration of this Cottrt's reasoning
in its Advisory Opinion of I950 2
(a) The Majority Opinion.
In its Advisory Opinion of July II, 1950, the Court ruled:
"According to Article 7 ol the Mandate, disputes between the
mandatory State and another Member ol the League ol Nations
relating to the interpretation or the application of the provisions
ol the Mandate, il not settled by negotiation, should be submitted
to the Permanent Court ol International Justice. Having regard
to Article 37 of the Statute ol the International Court ol Justice,
and Article 8o, paragraph r, ol the Charter, the Court is ol
opinion that this clause in the Mandate is still in force and that
therefore, the Union of South Africa is under an obligation ta accept
the compulsory jurisdiction of the Court according to those provi
sions."3
If Article 7 is in force, there must be States competent to invoke
it, or the foregoing holding is rendered meaningless. The Court's
references to Article 8o, paragraph r, of the Charter and to Article 37
of the Statute of the International Court of Justice would in parti
cular be irrelevant, except on the premise that the dissolution of
the League was not an event which extinguished the rights of
States to invoke Article 7.
Applicants have discussed in their Memorials extensively, • and
have summarized herein, ' the well-settled doctrine, reflected by
judicial precedent, scholarly opinion, and the views of States, that
an Advisory Opinion of the Court bas "great legal value" • and is
"an authoritative pronouncement of what the law is," 7 lacking
1
2 Separa.te Opinions by Sir Arnold MeNair and Judge Read, Id.at 158, 169.
International status of South-West Africa,Advisory Opinion: I.C.J. Reports
1930, p. 128.
Id. a.t IJS.
5 Memorials, pp. 95-103.
1 See p. 420.
Dissenting Opinion by Judge Winiarski, Interfwetation of Peace Treaties with
Bulgaria, Hungary and Romania, Advisory Opinion: I. C.J. Reports 1950, p. 89 at
917 Rosenne, S., The International Courg/justice,Sijthoff, Leyden, 1957, p. 493· OBSERVATIONS OF ETHIOPIA AND LIBERIA 439
only the sanction of enforceability. • Respondent has failed to set
forth any arguments not previously advanced by it in the proceed
ings leading to the Advisory Opinion of 1950 which should alter the
Court's ruling !hat Article 7 remains in effect and the necessary
corollary that to be effective there must exist States with the
capacity to invoke it.
(b) The Separa te Opinion of Sir Arnold MeNair. 2
Judge McNair explicitly stated that "Every State which was a
Member of the League at the time of its dissolution still has a
legal interest in the proper exercise of the Mandate." ' He went on
to say:
" ... I have endeavoured to show that the agreement between the
Mandatory and other Members of the League embodied in the
Mandate is still 'in force'.The expression 'Memberof the League of
Nations' is descriptive, in my opinion, not conditional, and does
not mean 'so long as the League exists and they are Mcmbers of
it'... "~
(c) The Separa te Opinion of J udge Read. '
Judge Read stated:
"... the legal rights and interests of the Members of the League,
in respect of the Mandate, survived with one important exception
in the case of Membersthat did not become parties to the Statu te of
this Court, their right to implead the Union before the Permanent
Court lapsed." 1
• • •
"ln the present instance. the Union, in the case of disputes
relating ta the interpretation or the application of the provisions
of the Mandate. is subject to the compulsory jurisdiction of this
Court-under the provisions of Article 7 of the Mandate Agreement
and Article 37 of the Statute, reinforced by Article 94 of the Char
ter." 6
2.Scholarly Writings and Official Declarations
A former Judge of the Court, the late Sir Hersch Lauterpacht,
stated in Oppenheim-Lauterpacht:
"... at }east those members of the United Nations who were meru
bers of the League of Nations are entitled to bring before the Inter-
1 Dissenting Opinion by Judge Zorièié,Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, Advisory Opinion: I.C.J. Reports 1950, p. g8 at
lOI.
' Separate Opinion by Sir Arnold ::McNair,International status of South-West
A/3iId. at 158.y Opinion: I.C.J. Reports 195p. 146.
• Id. at 158, 159.
• Separate Opinion by Judge Read, International status of SQUth-West A/rica,
Advisory Opinion: I.C.J. Reports 1950p. 164.
• Id. at 169.440 SOUTH WEST AFRICA
national Court of Justice any dispute relating to the interpretation
or the application of the provisions of the Mandate." 1
Finally, a Representative of Respondent, itself, Mr. D. B. Sole
speaking for Respondent in the General Assembly's Fourth Com
mittee, stated:
"Now the Mandate, as has been shown, provided two kinds of
machinery for its supervision by the League of Nations-fi.rstly,
there was the judicial supervision by means of the right of any
memhcr of the League under Article 7 to bring the manda tory compul
sorily before the Permanent Court. And secondly, the administrative
supervision by means of annual reports and their examination by
the Permanent Mandates Commission of the League. The judlcial
supervision provided for in Article 7 of the mandate has been express
ly preserved by means ofArticle37of the Statute of the Internation
al Court of justice reinforced by Article 94 of the Charter, and the
Court has in fact found that the Union of South Africa is therefore
still under an obligation to accept the compulsory jurisdiction of the
Col,!rtaccording to the provisions mentioned. Any State which was a
member of the League at its dissolution could therefore still implead the
Government of the Union of South Ajrica before the International Court
of Justice in respect of any dispute between such a member state and the
Government of the Union of South A/rica relating to the interpretation
or the application of the provisions of the Mandate.(ltalics added.)'
3.Summary
ln support of.their contention that they are competent to invoke
Article 7 Applicants have cited the Majority Opinion of this Court in
its 1950 Advisory Opinion, the Separate Opinions of Sir Arnold
McNair and Judge Read, the view of the late Sir Hersch Lauterpacht,
and a declaration by a representative of the Respondent. The latter
admission, "though not conclusive as to [the meaning of Article 7,has]
considerable probative value [since it contains] recognition by a
party of its own obligations under [Article 7]." 3
B. ANALYSIS SUPPORTING APPLICANTS' INTERPRETATION OF
"ANOTHER MEMBER OF THE LEAGUE OF NATIONS"
Respondent's Second Objection so misconceives the purposes of
Article 7 and the importance of judicial supervision in the scheme
of the Mandates System., that a briel analysis of the significance of
Respondent's contention is in order.
Respondent's attempt to deny the continuing capacity and
responsibility of States to bring enforcement proceedings in this
Court against violations of the Mandate reflects its failure to
understand the nature of tbe interest of Members of the League
1Oppenheim, L.,International Law:A Treatise, Vol. 1, Eighth Edition, ed. by
H. Lauterpacht, Longmans Green and Co., London, 1955, p. 226, n. J.
2Statement by the Representativeof the Union of South Africa in the Fourth
Committee, 196th Meeting, 4 December, 1950, U.N. Gen. Ass. Off. Rec. Sess.,
U.N. Doc. A/C. 4/185pp. 7-8.
1 SeeInternational status of South-West AfAdvisory Opinion: I.C.J. Reports
1950, p. 128 at 135, IJ6. '···•
OBSERVATIONS OF ETHIOPIA AND LIBERIA 441
in the proper execution of the Mandate. In Chapter IV, § 4, of
its Preliminary Objections (at pp. 363-364) Respondent recapi
tulates its mistaken conception of the nature of this interest,
previously set forth by it in Chapter III, § r6, of the Preliminary
Objections (at pp. 310-312). Respondent argues that:
"(a) On the basis that the League was nota legalpersona, ali the
contractual obligations would have been owed to the Members of
the League, who would then as Members have had a legal interest
in the observance by the Mandatory of ali such obligations.
"(b) On the basis, however, that the League was a legalpersona
... Membersof the League would have bad a legal interest in such
obligations vis-à-visthe Mandatory only insofar as the latter's obli
gations were intended to operate for the benefit of Members and
their nationals .. ." (Underscoringadded.)'
Respondent understands the "benefit of the Members" ta mean
material benefits in terms of trade and commerce or specifie
benefits ta their nationals in such terms as rights of entry, free
dom of action for missionaries, etc. 2 This is far tao narrow and
technical a conception of "benefit" or "interest." If these had been
indeed the sole interests of the Merhbers of the League, one conld
understand and possibly even admit a contention that such "legal
interests" Iapsed with the termination of the League's existence.
But the "interests" of the Members of the League in the Mandate,
properly understood, encompassed the achievement of the "material
and moral well-being and the social progress of the inhabitants"
of the Mandated Territory as a "sacred trust of civilization."
The "legal interests" of the Members embraced the fulfilment of
their duties as members of the organized international community
and were not confined ta their possibilities of material advantage
in an immediate and narrow sense. The Mandate agreement, like
Article 22 of the Covenant of the League upon which it was based,
conceived of the "interests" of the Members in terms of the funda
mental interests of the international community in the achieve
ment and maintenance of international peace and security and the
promotion of human rights and fundamental freedoms.
In this true sense, the legal interests and responsibilities of
Applicants could not and did not Iapse sa long as the Mandate
exists and sa long as Respondent occupies or administers the
affairs of the Mandated Territory. The continuance of their legal
interests and responsibilities as Members necessarily imports their
capacity (and duty) ta invoke the powers of this Court under Ar
ticle 7 of the Mandate.
Respondent's Second Objection, in addition ta ignoring the
foregoing principles, would undermine the jurai relationship en
visaged by the Mandates System as Iinking the four essential ele-
1
• See, for example, Id. at JII.tionp. 363.
29 SOUTH WEST AFRICA
442
ments of that system: the Mandatory, the League of Nations, the
Members of the League, and the Permanent Court of International
Justice.
Irrespective ofthe theory upon which rests the inescapable and
judicially settled conclusion that the Mandate did not die with
the League's dissolution, these four sides of the quadrilateral jural
system must survive, if any one of them is held to survive as part
of the Mandate. By the working of history, it is a remarkable fact
that each of the four elements exists to-da y in different form than
at the moment the Mandate was conftrmed:
(a) The Union of South Africa, upon whose behalf the Mandate
was accepted by His Britannic Majesty, to-day is the Republic of
South Africa, outside the Commonwealth;
(b) The League of Nations has been replaced by the United
Nations;
(c) Members of the League, including Applicants, are to-day
Members of the United Nations; and
(d) The Permanent Court of International Justice has been
succeeded by this Court.
Respondent's contention with respect to the meaning of the
phrase "another Member of the League of Nations" does not,
and indeed cannot, distinguish in principle or logic among these
four interrelated jurai elements of the Mandates System. Respondent
has not ventured to show how judicial supervision can be preserved
unless there are States in existence qualified to invoke it. It has
not shown how administrative supervision, if frustrated as in the
case of this Mandate, can be enforced without judicial supervision.
It has not shown by what theory it daims rights by reason of an
instrument whose survival it denies.
It is only through the continued existence of the Mandate that
Respondent can legally justify its presence in the Territory
today. Ali Mandatories, including Respondent, originally de
rived their authority to administer mandated territories solely
by virtue of, and in accordance with, the Mandate instruments
which set forth their rights and duties. When the League was dis
solved ali other Mandatories either ceased to administer the terri
tories entrusted to them, or entered into a trusteeship agreement,
deriving their continued authority to administer such territories
from such agreements. Respondent, however, failed to adopt
either of the above two courses; hence, its authority rests solely
upon the continued existence of the Mandate.
The Mandate is a creature of the organized international com
munity, as weil as the subject of a legal interest of such community
and its Members. Its existence today rests upon the continued
vitality of the authority conferred upon Respondent by the
organized international community and by the continued vitality
of the rights of such community and its Members to ensure that OBSERVATIONS OF ETHIOPIA AND LIBERIA
443
the Mandate is properly administered. The only question is, which
representative of the organized international community does one
look to, the League of Nations or the United Nations, the organ
in existence when the Mandate was conferred or the organ now in
existence? The Majority Opinion applied the doctrine of succession
and looked to the United Nations. Judges McNair and Read
declined to apply the doctrine and looked to the League. As shown
above, bath views support Applicants' standing in the case at bar.
Insofar as the point of jurisdiction is concerned, therefore, it makes
no practical difference which view is adopted. Applicants have
urged confirmation of the Majority Opinion, 1 however, since such
view appears more responsive to the purposes of the Mandate.
Applicants, nevertheless, rest their submission on jurisdiction on
either or bath bases. They fall within the descriptive specification
of "another Member of the League of Nations," either as current
Members of the United Nations or as Members of the League of
Nations at the time of its dissolution.
I. Membership in the United Nations
Administrative and· judicial supervision of the Mandatory by
the international community, as has been noted by Applicants, is
a key feature of the Mandates System. It represents the "securities
for the performance of this trust" required under Article 22 of the
Covenant of the League of Nations. Necessarily, the framers of
the Mandates System entrusted such supervision to the appro
priate international institutions created at the time the System
itself was devised. Thus administrative supervision was entrusted
to the League of Nations and judicial supervision was entrusted to
the Permanent Court of International Justice. The judicial super
vision was to be accomplished through the invocation of the com
promissory clause of the Mandate instruments by States which had
become Members of the organized international community by
joining the League, having in cominon their joint and severa!
interests in the proper "interpretation or application of the pro
visions of the Mandate." (Art. 7.)
It was, of course, hoped and expected that the organs created
after World War I to represent the international community would
eridure. Although they have been succeeded or replaced by other
organs, the Court in its rg5o Advisory Opinion ruled that the
Mandate survived, and consequently, that international super
vision of the Respondent, as Mandatory, endures.
The Court held that the reference in Article 7 of the Mandate
to the Permanent Court of International Justice should be replaced
by reference to the International Court ofJustice. Although stressing
Article 37of the Statute of the Court, which makes specifie provision
for the substitution, there is excellent authority that even in the
absence of Article 37 the Court might weilhave ruled the same way.
1See Memorials, pp. 95, 197. SOUTH WEST AFRICA
444
Such authority is reftected in the Report of Committee I of
Commission IV on Judicial Organization at the San Francisco
Conference, and the comment upon thal Report by Judges Sir
Hersch Lauterpacht, Wellington Koo and Sir Percy Spender in
their joint dissent 1in the Aerial Incident Case. 2
The Report of Commit tee I stated, inter alia:
"In a sense ... the new Court maY be looked upon as the
successor to the old Court which is replaced. The succession will be
explicitly contemplated in sorneof the provisions of the new Statu te,
notably in Article 36, paragraph 4 [which subsequently became
paragraph 5]. and Article 37·"'
Judges Sir Hersch Lauterpacht, Wellington Koo and Sir Percy
Spender commented:
"The formai and, in effect, insignificant changes in the Statute of
the new Court were not to be permitted to stand in the way of the
then existing compulsory jurisdiction of the Permanent Court being
taken over by the International Court. It was specifically contem
plated thal the continuity of the two Courts should be given ex
pression by recognizing the continuity of the compulsory juris
diction at !hat tme existing. It would have been difficult to use
more specifie terms: 'the succession will be expressly contempla
led ...
"In !act, a study of the records of the Conferenceshows !hat the
determination to secure the continuity of the two Courts was closely
linked with the question of the compulsory jurisdiction of the new
Court . .. "4
In its Advisory Opinion of 1950 the Court reasoned that adminis
trative supervision must be performed by the United Nations
because: "The necessity for supervision continues to exist despite
the disappearance of the supervisory organ under the Mandates
System. It cannat be admitted that the obligation to submit to
supervision has disappeared merely because the supervisory organ
has ceased to exist, when the United Nations has another inter
national organ performing similar, though not identical, super
visory functions." ' In support of this reasoning, the Court pointed
out that "The purpose [of Article 8o, paragraph I, of the Charter]
must have been to provide a real protection for those rights; but
1 The point involved here was not the subject of divergence between the
Majority and the Dissenting Opinions.
2 Case concerning the Aerial Incident of July 27th, I955 (Israelv. Bulgaria),
Preliminary Objections: Judgment of May 26th, I959: ICJ Reports z959, p. Z27.
3 Documents of the United Nations Conference on International Organi.tations,
San Francisco, I945, Vol. 1·3,U.N. Information Organization, New York, 1945,
p. 384.
t.Joint Dissenting Opinion, Case Concerning the Aeriallncideof july z;, I955
(Israel v. Bulgaria), Preliminary Objections, Judgment of May :z6th, I959I.C.j.
Rep1rts I959. p.156 at 159.
International status of South-West Africa, Advisory Opinion: I.C.J. Reports
1950,p. 128at 136. .'•
OBSERVATIONS OF ETHIOPIA AND LIBERIA 445
no snch rights of the peoples could be effectively safeguarded
without international supervision and a duty to render reports to
a supervisory organ" 1 and that "The Assembly of the League of
Nations, in its Resolution of April rSth, 1946, gave expression to a
2
corresponding view."
The Court, in determining that the International Court of Justice
has replaced the Permanent Court and that the United Nations
has replaced the League of Nations for purposes of the Mandate,
similarly applied the principle of succession, explicit in one case
and implicit in the other, in arder to give effect to the purposes of
the Mandate.
The Court recognized that the failure of the League of Nations
and the Permanent International Court, as such, to endure in their
original forms, is irrelevant to the fundamental principle that
Respondent as Mandatory remains responsible to the organized
international community for the discharge of the "sacred trust of
civilization." The rationale of the Court's approach is further
confirmed by the carefully reasoned analyses ofSir Gerald Fitzmaurice
and Sir Hersch Lauterpacht. Judge Fitzmaurice has pointed out:
". . . the position is comparable with that which exists in the
realm of state succession when one state takes over territory from
one part of the territory of another state. There is then an automatic
succession or devolutiOn of ali rights and obligations locally or
territorially attached to or connected with the area transferred,
which pass with it. If, for the concept of territorial area, there is
substituted thal offunctional field,then the position might be stated
as follows: that just as a territorial area passing from one state to
another carries with it ali rights and obligations specifically apper
taining to that area in a territorial manner, so a functional field
'passing' from one international organization to another (in the
sense that the former is extinguished but the latter is created
express}y to fulfil the same general purposes, and the extinction of
the former is carried out largely on that basis) carries with it the
rights, obligations, and functions connected with thal field, and
appertaining to the capacity to act in it." (Footnotes deleted.) •
And in discussing the Advisory Opinion, on two separate occassions,
Judge Lauterpacht stated:
"While as a rule the devolution of rights and competences is
governed either by the constituent instruments of the organisations
in question or by special agreements or decisions of their organs, the
requirement of continuity oflinternationallife demands that succes
sion should be assumed to operate in ali cases wherethat is consistent
with or indicated by the reasonably assumed intention of the parties
1
2 Id.at 136, 137.
Id.at 137.
' Fitzmaurice, G., "The Law and Procedure of the InternationalCourt of
Justice: International Organizations and Tribunals," Vol29,BYitish Yeaf'bookof
InternationalLaw, 1952, p. 1 at g. SOUTH WEST AFRICA
as interpreted in the light of the purpose of the organisations in
question." (Footnotes deleted.)'
* * *
such importation ... of the rules of succession in relation to
international organizations is no more than an example of legitimate
application of the principle of effectiveness to basic international
instruments." 2
In sum, the Mandates System was premised upon effective
performance of the sacred trust of civilization by Mandatory Powers.
This could he assured only if administration of Mandated terri
tories was subject to the compulsory jurisdiction of an Inter
national Court to adjudicate disputes conceming the interpretation
or application of the Mandate. Only States may institute judicial
proceedings. Renee, the authors of the Covenant endowed the
members of the League of Nations, the Organ then representing
the international community of civilized nations, with the right
to institute the judicial proceedings. Even though "civilization"
in the form of an organized international community is no longer
embodied in the League, the same powers, objectives and principles
are now represented by the United Nations. United Nations
Members have the same essential attributes as did Members of
the League, namely, membership in the organized international
community and, thereby, parties to a Charter, or covenant, the
purposes of which include supervision over non-self-governing
territories, including trust territories and mandates.
Put in the form of the analysis of Judge Lauterpacht stated
above, a holding by the Court that United Nations Members have
succeeded to the fonctions of League Members vis-à-vis the Man
date would be "no more than an example of legitimate application
3
of the principle of effectiveness to basic international instruments."
2. Membership in the League of Nations
Even if the principle of succession as set forth above were not
accepted by the Court in the instant cases, Applicants are never
theless competent to invoke Article 7 inasmuch as they were
Members of the League at the time of the League's dissolution.
There is at the very !east a de facto carry-over of the League's
,responsibilities to the extent that an important function of the
League continues beyond the League's formai existence. Such a de
factocarry-over not on!y justifies the presence of Respondent in the
Mandated territory, but it also keeps alive the legal interests of the
League and its Members in the Mandate. Hence, States, such as
1Oppenheim, L., InternationaLaw: A Treatise, VoL 1, Eighth Edition, ed.
by H. Lauterpacht, Longmans Green and Co., London, 1955, p. 168.
2Lauterpacht, H.,The Development of International Lawby the International
Court,Stevens and Sons, London, 1958, at 280.
3See note 1,this page,supra. OBSERVATIONS OF ETHIOPIA AND LIBERIA
447
Ethiopia and Liberia, which were members of the League at the
time of the League's dissolution, remain within the description
of "another Member of the League" for purposes of the Mandate.
· The concept of the limited de factosurvival of an entity which bas
been formally dissolved is a concept familiar to civilized legal
systems. Thus, in many states of the United States of America, a
dissolved corporation remains de factoin existence until it winds up
its corporate affairs. 1 Other States of the United States enable
persans who were corporate directors at the time of a corporate
2
dissolution to sue as trustees on any daim of the corporation.
This is but another way of recognizing the continuing vitality of
the rights and obligations created by the corporation prior to its
dissolution. The "'carry-over" principle of dissolved corporations is
implicit in the rule that suit may be brought on behalf of the
defunct corporation only by former directors. Civil law countries
have similar legislation, 3 which keep alive and carry-over the
legal existence of rights and duties of clissolved entities.
An analogous principle of municipal law may be found in the
widely held doctrine that legal relationshi ps established under a
statu te by statutory authority survive the expiration of the statute
or statutory authority in the abserice of provision to the contrary.
Particularly is this so when a saving clause is employed in the
legislation repealing the statute ordissolving the statu tory authority.
Rights and obligations-according to which property may have
been exchanged, or upon which promises may have been made,
or by which a fiduciary may have been entrusted with property
not his own-are not considered to disappear merely because an
entity or authority goes out of existence and is not succeeded by
another entity which explicitly assumes its rights and obligations.
Modern civilized systems are too sensitive to justice to permit so
illogical and inequitable a result.
With respect to the Mandate, the legal relations established by
the League continue to exist. In addition to the reasons already set
forth to. support this conclusion, there is an act of the League of
1 California:West's Annotated Corporation Code, §§ 5400-5402(1955). Ma,-y
land: Annotated Code of Maryland, Article 23, §§ 76(b), 78(b) and 82(a) (1957). New
jersey: New Jersey StatutesAnnotated, Title 14, § 14: 13-14 (1939). New York:
Stock Corporation Law § 105(8) (1951):General Corporation Law § 29 (1943).
Ohio: Page's Ohio Revised Code,§1701.88 (Supp. 1960).
~ Uniform Business Cor.Poration Law §§ 49-60 [9 Uniform Laws Annotated
pp. 204-213 (1957)]-Ineffect in LouisianaWest's Louisiana StatutesAnnotated,
Title 12, §§ 53-62 (1951); Minnesota: Minnesota Statutes Annotated, Vol. 20, Chap.
301, §§ J01.46-30t.5(1947); Washington: Revised Code of Washington, Title 23,
§§ 23.01.520-23.0I.65(1958).
• France: See Traité Généraldes Sociétés, Librairie de la Sociétédu Recueil
Sirey, Vol. I, pp. 303-304, para. 276 ("Survival of the Moral Entityand Vol.
II, p. 587, §§ 1454 et seq on the same subject(1929). Spain:Corporation Law
of Spain of July 17, 1951, Articles 154 and 159. ArgentinCode of Commerce,
Article 435· Ecuador: Code of Commerce, Articles,·.357 and 361. Venezuela: Code
of Commerce; Articles 350 and 351. SOUTH WEST AFR!CA
Nations which in effect constitutes a "saving clause" of the kind
referred to above. This act of the League is the adoption of its
Resolution of April r8, 1946 and particularly paragraphs 3 and 4
thereof:
"3. Recognizes that, on the termination of the League's existence,
its functions with respect to the mandated territories will come to
an end, but notes that Chapters XI, XII and XIII of the Charter
of the United Nations embody principles corresponding to those
declaredin Article22 of the Covenant of the League;
"4. Takes note of the expressed intentions of the Membersof the
League now administering territories under mandate to continue
to administer them for the well-beingand development ofthe peoples
concerned in accordance with the obligations contained in the res
pective Mandates until other arrangements have been agreed between
the United Nations and the respective mandatory Powers." (Italics
added). '
States which were Members of the League when the League was
dissolved continue to have the competence to invoke Article 7·
For purposes of the Mandate, the responsibilities and authority of
the League carry over at !east to an extent which qualifies the
Applicants to institute these proceedings.
C. RESPONDENT'S CONTENTIONS
Respondent proceeds from the premises that the United Nations
did not succeed to the supervisory powers of the League nor has
there been a de facto carry-over of the League's existence for pur
poses of the Mandate. Hence, Respondent assumes that it is not
accountable to the organized international community either as it
existed when the Mandate was conferred or in its contemporary
existence. Respondent elaborates an argument in which a State
which had withdrawn, or had been expelled from, the League
attempted 2 to exercise rights it had formerly possessed as a League
member. What Respondent has done is to assume that the
League formally exists and that Applicants are not Members of
the League. And why in Respondent's argument are they not
Members of the League? Because the League no longer exists.
Respondent's argument misses the central point. If the League
still existed as such, and a State withdrew from membership,
there would still remain a corporate body and a membership thereof
which could assure compliance with the Mandate.
D. CoNCLUSION
Applicants' legal conclusion-that they are competent to
invoke Article 7-is supported by the authority of ali the Opinions
1
z See Respondent's Preliminary Objections, pp. 355-356, 365-366. OBSERVATIONS OF ETHIOPIA AND LIBERIA
449
delivered in the 1950 Advisory Proceedings, whatever rationale may
be adopted from those Opinions.
Apart from the authority of these Opinions, it is submitted that
their fundamental soundness is incontestable in the light of the
terms of the Mandate and its purposes. To deny the competence of
Applicants to proceed under Article 7 would be to reject the con
clusions embodied in these Opinions and to reject the logic of the
terms, purposes and entire frame of reference of the Mandate. It
would nullify the judicial machinery designed to assure that
Respondent shall faithfully discharge its duties under the Mandate. SOUTH WEST AFRICA
450
v
THERE HAS ARISEN AND NOW EXISTS BETWEEN
APPLICANTS AND RESPONDENT A DISPUTE RELATING
TO THE INTERPRETATION AND THE APPLICATION OF
THE PROVISIONS OF THE MANDATE AND SUCH DISPUTE
CANNOT BE SETTLED BY NEGOTIATION
Applicants submit that the case at bar fulfils the requirements
of Article 7, Paragraph 2,of the Mandate, in that
r. There is a "dispute;"
2. The dispute relates to the "interpretation or the application of
the provisions of the Mandate;" and
3· The dispute "cannot be settled by negotiation."
Each of the requirements is discussed seriatim.
It should be noted that Respondent devotes its Third Objection
to an attempt to insert into Article 7 a requirement which does not
exist. Respondent argues, in defiance of the purpose and plain
text of the Article, that no "dispute" can exist unless the subject
matter of the dispute affects a "material interest" of the Applicant
States or their nationals, and it asserts that no such "material
interest" is shown in the instant cases. 1
Applicants submit that Respondent's contention is not only
erroneous in substance, but also misconceived in logic. If relevant
at ali, Respondent's contention relates not to whether a "dispute"
exists, but to whether or not the dispute relates to the "interpre
tation or the application" of the Mandate. Applicant accordingly
will discuss the contention under that heading in this Chapter.
A. THERE IS A "DISPUTE"
"A dispute," said the Permanent Court of International Justice
in interpreting the counterpart of Article 7 in the Mandate for
Palestine, "is a disagreement on a point of law or fact, a conflict of
legal views or of interests between two persons." '
This defi3ition, which Respondent also adopts in its Preliminary
Objections, is in complete accord with a number of subsequent
definitions of the terrn "dispute,"· rendered by the Permanent
Court as weil as by this Court. • The only disagreement appears
1 See, for example, pages 376, 394 of Respondent's PYtliminary Objections.
1 The MaVYommatis Palestine Concessions, P.C.I.J., Ser.2,1924, at u.
1 Respondent's Pt'eliminary Objections, p. 377·
• Case concnning Certain Gef'manlnterests in Polish Upper Silesia, P.C.I.J ., Ser. A,
No. 6, 1925, at 14lnterpyetation of Peau TreawilhBulgaria, Hungary and
Romania,AdvisoryOpinion: I.C.J. Reports 1950, p. 65 at 74· OBSERVATIONS OF ETHIOPIA AND LIBERIA 451
to have centred upon the question of when a disagreement or
conflict must have been manifested. No matter what view one
accepts on this question, there is a "dispute" in the case at bar,
inasmuch as for more than ten years Applicants. and Respondent
have been expounding and urging conflicting points of view con
cerning issues of law and fact. For more than ten years, Appli
cants have insisted, but Respondent has denied, that the Mandate
is in force; Applicants have maintained, but Respondent has denied,
that the United Nations has supervisory powers over the Mandatory;
Applicants have asserted, but Respondent has denied, a legal
interest in, and a right to abject to, the administration of the
mandated territory; Applicants have charged, but Respondent has
denied, that the provisions of the Mandate have been violated.
(See Memorials, Chaps. II, V, VI, VII, VIII, and IX.) It is manifest
that there exists between Applicants and Respondent a "dispute,"
as that term was defined by the Permanent Court.
Indeed, Respondent does not question the existence of a dispute
between it and Applicants concerning points of law raised in Appli
cants' M emorials, as is shawn by the following statement in the
Preliminary Obiections:
"Respondent does not "dispute thal Applicants, in participating in
debates in and resolutions of Organs and Agencies of the United
Nations, have contended that the Mandate is in force, thal the
United Nations has supervisory powers over Respondent as Man
datory and !hat they have a legal interest in, and right to abject to,
the manner in which Respondent administers the Territory. Neither
does Respondent dispute thal it bas, in debates in the Organs and
Agencies of the United Nations and in correspondence with the
United Nations, made clear its stand in rejecting the aforesaid
contentions. Respondent, hmvever, denies that the dispute concern
ing the aforesaid points of law is one which cannat be settled by
negotiation."1
Respondent appears to deny, however, that there is a dispute
regarding the alleged substantive violations of the Mandate,
although Respondent's position on this point is far from clear.
Respondent admits that Applicants have made known their
views: "Again, in this respect, Applicants did not avail themselves
of the ordinary diplomatie channels to bring complaints and raise
disputes concerning Respondent's administration of South West
Africa, but participated with other Members of the United Nations
in debates and resolutions concerning such administration." '
Res pondent also admits that it has denied Applicants' contentions:
"Respondent, however, throughout denied that it had violated the
1 Respondent's Preliminary Objectp.n399·
2 Id. a403~ SOUTH WEST AFRICA
452
provisions of the Mandate and repeatedly stated thal, in conformity
with ils expressed intention, the Territory was being administered
in the spirit of the Mandate." (ltalics added.) 1 Nevertheless, con
tends Respondent, "whatever differences may, from dehales in the
United Nations, appear to exist between Respondent and the
llfembers of the United Nations, including Applicants, asto certain
aspects of the administration of the Territory, those differences
are not so defined asto constitute a dispute cognisable by the Cour:t
in terms of Article 7 of the Mandate." 1 What is mean! by "cog
nisable" is not clear. Inasmuch as Respondent assumes for the
purpose ofits Fourth Objection thal the dispute need not concern
what it conceives to be a "material interest," it apparently does not
argue thal the dispute is not "cognisable" for thal reason. Further
more, Resp~mde pnrsumably does not contend that the dispute
is not "cognisable" due to the negotiations requirement, since thal
element is treated separately by Respondent: "In. any event,
even if the said differences can at ali be regarded as constituting a
dispute in terms of Article 7, it cannot be said thal thal dispute is
1
one which cannot be settled by negotiation." Nor apparently does
Respondent consider the dispute not "cognisable" because it was
not manifested in a timely manner, since Respondent states
thal "throughout" it has "denied" the allegations and has "repeated
ly stated" its views on the subject. 1 Possibly Respondent seeks to
imply thal there is no "dispute" because it has not joined issue
with every one of Applicants' contentions, although, as it admits,
Respondent has denied the general allegations. If indeed this
is Respondent's position, it is erroneously conceived.
First of ali, it is sufficient, by way of illustration, thal Applicants
allege thal apartheid violates Article 2 of the Mandate, and thal
Respondent categorically denies the allegation. lt is not a necessary
characteristic of a "dispute" thal antagonists engage each other
in direct dehale on each and every factual point constituting their
differences.
Moreover, prior to their filing of the Applications and Memorials,
Applicants did in fact announce their position on ali points com
prising their side of the dispute. They have consistently voted to
approve and adopt the Annual Reports of the Committee on South
West Africa which, since 1954, have set forth detailed criti
cisms of Respondent's exercise of the Mandate. Indeed, one
Applicant, Ethiopia, has been a member of that Committee. If
during ali the lime since 1954 Respondent has not seen fit to respond
to these contentions, but has continued to exercise the Mandate
without regard to the criticisms supported and adopted by the
overwhelming number of. the members of the international com
munity, it would appear thal Respondent disagrees with the criti-
1 Id.at404. OBSERVATIONS OF ETHIOPIA AND LIBERIA 453
cisms. In the circumstances, Respondent's deeds have been its
words.
As a matter of !act, Respondent bas stated its position and
voiced its contentions strenuously and olten in the United Nations.
At the 78th meeting of the General Assembly's Fourth Committee,
Minister for External Affairs, Mr. Eric Louw, defended by name the
application of apartheid in South West Africa, defended the agricul
tural policy of Respondent in the Territory, and defended Respon
dent's policy of "doser association" between the Territory and
South Africa. 1 At the gooth meeting of the Fourth Committee,
Mr. Louw denied that Respondent bas established military bases
2
or fortifications in the Territory. At the 407th meeting of the
Fourth Committee, Mr. D. B. Sole, Respondent's Representative,
denied that the educational system is inadequate, defended the pass
laws and other restrictions on movement in force in the Territory,
defended the housing policy and land allocation in effect in the
Territory, denied that "Natives" are restricted to being laborers,
3
and denied any unlawful incorporation or annexation. At the
914th meeting of the Fourth Committee Mr. Van Der Wath, Repre
sentative of Respondent, denied that the Territory was being
economically developed for the benefit of the "Europeans" at the
expense of the "Natives."' At the 915th meeting, Mr. Van Der
Wath denied a discriminatory land policy in the Territory. • At
the g16th meeting, Mr. Van Der Wath denied that the educational
system in the Territory is inadequate, and defended the labor
regulations in force therein. •
Respondent correctly sums up the differences between Applicants
and Respondent, then, when it states the following in its Preli
minary Objections (at pages 270 and 271): "The statement that
'repeated debates and resolutions have failed to bring about the
Union's compliance with the Mandate' also involves an assumption
consistent/y disputed by Respondent. Respondent maintains that it
faithfully honours the spirit of the Mandate in the administration
of the Territory ... " (Italics added.)
One further point needs to be considered in respect of the ques
tion, what is a "dispute?" It is a point also relevant to the question,
what is "negotiation?"
1 U.N. Gen. Ass. Off. Rec. 3rd Sess., 1st Part., 4th Comm. (U.N. Doc. A/603)
at 307-310 (1948).
' U.N. Gen. Ass. Off. Rec. 14th Sess., 4th Comm. (U.N. Doc. A/C-4/SR. gao) at
86 (1959)-
1 U.N. Gen. Ass. Off. Rec., gth Sess., 4th Comm. (U.N. Doc. A/C-4/SR. 407)
at 66-70 (1954).
4 U.N. Gen. Ass. Off. Rec. 14th Sess., 4th Comm. (U.N. Doc. A/C.4/SR.at4)
165-166 (1959)-
, U.N. Gen. Ass. Off. Rec. 14th Sess., 4th Comm. (U.N. Doc. A/C.4/SR. 915) at
167-170 (1959).
• U.N. Gen. Ass. Off. Rec. 14th Sess., 4th Comm. (U.N. Doc. AjC.4;SR. 916) at
175•176 (1959)-454 SOUTH WEST AFRICA
Respondent does not deny that disputes may be generated, or
negotiations conducted, in the United Nations. Indeed, as has been
shown above, Respondent concedes that a dispute does exist
between itself and Applicants, which dispute has been generated
in the United Nations, at !east on issues of law. But Respondent
does appear to base an argument upon its contention that "Appli
cants did not avail themselves of the ordinary diplomatie channels
to bring complaints and raise disputes." 1It may be assumed that
the reference to undefined "ordinary diplomatic channels" covers
such traditional practices as exchanges of notes or direct confron
tations of high officiais. It is difficult to conceive that Respondent
would seriously contend, as in fact it has not explicitly sought to
do, that in the contemporary world, "negotiations" cannot take
place in a multilateral forum. Indeed, the subject-matter of the
dispute in the instant cases is so particularly appropriate for dis
cussion and consideration in the United Nations that unilateral
attempts to deal with the dispute through channels unrelated to
that body would engender confusion and undermine the very pur
poses of the Mandate and United Nations' supervision thereof.
The essence of the United Nations and its role in international
affairs are weil described in the words of Goodrich and Simons:
"The United Nations is fundamentally a voluntary association o{
states, with a set oforgansand proceduresthrough whichits Member
states have agreed to co-operate, under stated conditions, forcommon
purposes. Like the League of Nations before it, the essence of the
United Nations is that techniques previously used in international
relations-the concertof powers, the international conference, peaceful
methods of settlingsputes-have beeninstitutionalized and made part
ofthe established and recognized process of conducling international
atfairs.(Italics added.) •
Indeed, if the above description is not accurate, one wonders
what the United Nations is ali about.
The United Nations exists for the public and private exchange
and expression of official govemmentai viewpoints on ali matters
in which Member states have an interest. The essence of such
exchange and expression is to permit the statement of opposing
viewpoints and to seek to reconcile divergences which mark dis
putes. Fact-finding committees are established to elucidate and
compose differences; permanent and tempotary committees are
empowered to negotiate on behalf of the United Nations. Moreover,
and equaliy important, Member states may entrust their interests
to these committees, acting through them or participating directly
in their activities. Under the Charter, such agencies perform their
duties in a representative and derivative character, acting for the
1
1 Goodrich, L. M. and Simons, A. P., The United NatiotheMaintena nft:~
International Peate and Security, Brookings Institution, Washington, 1955. p. 591· OBSERVATIONS OF ETHIOPIA AND LIBERIA
455
community of Member states as a whole, and protecting the interests
of each Member state in promoting the United Nations Charter.
In disputing and negotiating with Respondent, Applicants have
set forththeir views in the GeneraiAssembly and in itsCommittees,
and have likewise acted through the Organs established by the
United Nations to deal with the dispute and negotiate with Res
pondent.
The dispute in issue is especially suited for consideration in the
United Nations.
The subject-matter is directly concerned with many of the
central purposes for which the United Nations was established,
namely,
"to develop friendly relations among nations based on
respect for the principle of equal rights and self-determination of
peoples ... ;
"to achieve international co-operation in solving international
problems of an economie, social, cultural, or humanitarian character,
and in promoting and encouraging respectfor human rights and for
fundamental freedoms for ail without distinction as to race,sex,
language, or religion;and
"to be a centre for harmonizing the actions of nations in the
attainment of the•e commonends." (!taliesadded.) (Articler of the
Charter.)
Moreover, the subject matter of the dispute covers one of the
major undertakings of United Nations Members "which have oro
assume responsibilities for the administration of territories whose
peoples have not yet attained a full measure of self-government
[to] recognize the principle that the interests of the inhabitants of
these territories are paramonnt, and [to] acèept as a sacred trust
the obligation to promote to the utmost, within the system of
international peace and security established by the ... Charter, the
well-being of the inhabitants of these terri tories ..." (Article 73 of
the Charter.)
Further, the dispute concerns the United Nations itself as an
institution, inasmuch as Respondent disputes that the Organi
zation is vested with supervisory powers over the Mandate.
Finally, and most important, the dispute concerns a "sacred
trust of civilization". While it affects the interests of Applicants in
assuring compliance with international undertakings, in furthering
the principles of the Charter, and in promoting the welfare and
human rights of the inhabitants of the Mandated Territory, it is
not a matter of soleor exclusive interest to Applicants and·Respon
dent. Thedispnte is of concern and interest to ali States, at !east
those which are Members of the United Nations. This is manifest
from the above-quoted portions of the United Nations Charter,
as weil as the history of proceedings regarding the Mandate in the
United Nations. It would have been inappropriate, therefore, for
Applicants to attempt solely through their own diplomatie channels456 SOUTH WEST ~FR!CA
or unilateral offices to determine with Respondent the future
course of the Mandate, "an international institution with an inter
national abject," especially in view of the fact that the United
Nations ha:d established Organs and procedures through which
Member states could act to express their views, make their conten
tions known, and seek to resolve points at issue between themselves
and Respondent .
.In disputing and negotiating with Respondent \n the United
Nations during the past severa! years, Applicants, therefore, have
been upholding their own legal interests in the proper exercise of
the Mandate; but they have been doing more than that. They have
also been upholding the collective legal interest of the Members
of the United Nations and the interests of the Organization itself.
In instituting these proceedings, Applicants have moved to pro
tect not only their own legal interests but the legal interests of the
United Nations (which, itself, may not be a party to a contentious
proceeding), as weil as the legal interests of every other Member
state similarly situated.
• • •
To reiterate the definition of "dispute" given in the Mavrommatis
case, "A dispute is a disagreement on a point of law or fact, a con
flict of legal views or of interests between two persans." 1
As demonstrated above, a disagreement on points of law and
fact and a conflict of legal views and interests manifestly exist
in the instant i:a5es.
B. THE DISPUTE RELATES TO THE INTERPRETATION AND THE
APPL!CA T!ON OF THE PROVISIONS OF THE MANDATE
As the majority of the Court stated in the Mavrommatis Case, a
dispute covered by Article 7 of the Mandate (i.e., a typical com
promissory clause)-
"may be of any nature; the language of the article in this respect
is as comprehensive as possible (any dispute whatever-tout
différend, quel qu'soit); but in every case it must relate to the
interpretation or the applicationfthe provisionsofthe Mandate." '
The dispute between Applicants and Respondent relates bath
to the interpretation and the application of the provisions of the
Mandate.
(a) With respect to the interpretation of Article2 of the Mandate,
Applicants and Respondent disagree:
(i) Whether the practice of apartheid constitutes a violation
of said Article;
1 The Mavrommatis Palestine ConcessioP.C.I.J.Ser. A., No2,1924, at Il.
1 id. at 15, 16. OBSERVATIONS OF ETHIOPIA AND LIBERIA 457
(ii) Whether the economie, political, social and educational
policies applied in the Territory constitute a violation of said
Article;
(iii)hether Respondent has treated the Territory in a
manner inconsistent with the international status thereof, and
if so, whether that constitutes a violation of said Article;
(b) With respect to Article 4 of the Mandate, Applicants dis
agree with Respondent whether it has established military bases
within the Territory, and if so, whether that action constitutes a
violation of said Article;
(c) With respect to Article 6, Applicants disagree with Respon
dent whether its failure and refusai to render reports to the General
Assembly of the United Nations constitute a violation of said
Article;
(d) Applicants and Respondent disagree whether the failure of
Respondent to transmit to the General Assembly of the United
Nations petitions from the Territory's inhabitants constitutes a
violation of any of the provisions of the Mandate;
(e) Applicants and Respondent disagree whether Respondent has
unilaterally attempted to modify substantially the terrns of the
Mandate, and if so, whether such attempt constitutes a violation
of Article 7 of the Mandate.
Accordingly, the interpretation of Articles z, 4, 6, and 7 of the
Mandate clearly is in dispute. The Court is called upon to resolve
the dispute and to determine whether Respondent has faithfully
applied these Articles in accordance with their spirit and purpose.
Having quoted the applicable language, and having demon
strated that the dispute cornes within such language, Applicants
would rest their case on the point at issue.
Respondent, however, contends that no "dispute" is envisaged
by Article 7 unless the subject-matter affects a material interest of an
1
Applicant State or of its national. In s2pport of its position,
Respondent cites the Mavrommatis case, the case of Jerusalem
Jatfa District Governor and another v. Suleiman Murra and others,'
and the views of four writers, Feinberg, Judge MeNair, Wessels, and
Schwarzenberger. ' Respondent ·also asserts general principles,
including its view that the framers of the Mandates System did not
intend that a dispute of the sort involved here would be covered by
Article 7·
It is submitted that (r) the opinions in the Mavrommatis case and
the J erusalem case do not, in fact, support Respondent's view;
(z) two of the scholarly authorities cited by Respondent do
not support Respondent's contention, ·and a large number of
1 Respondent'sP,-eliminary Objections,376, 394·
' The MatJ,.ommatis Palestine ConcessP.C.I. .e..~,No. 2, 1924.
s 1926 A.C. 321citedin Respondent'P,-eliminaiY Objections387, n1..
• See Respondent'sPreliminary Ob-jection390, n.1.
30 SOUTH WEST AFRICA
other scholars, expert in the Mandates System, support Applicants'
view; (3) the framers of the Mandates System intended that the
type of dispute involved in the instant cases should be covered by
Article 7 of the Mandate; (4) finally, even if Article 7 were inter
preted as requiring a so-called"material interest," such an interest
is present in these cases.
r. The Purpose and History of the Compromissory Clause in the
Mandates System
The announced intention of the founders of the Mandates System,
the circumstances surrounding the creation of the System, and the
nature of the structure they created, demonstrate that the Perma
nent Court of International Justice was designed to be an integral
part of the supervisory machinery of the system. lt was intended to
adjudicate, at the instance of any Member of the League, disputes
affecting the interpretation and application of the Mandate with
respect to the well-being of the inhabitants of the mandated
terri tories.
An important factor in interpreting the compromissory clause
is the overriding concern demonstrated by the founders of the
Mandates System for the well-being and development of the in
habitants of the territories to be placed under Mandate. President
Wilson expressed to the Council of Ten his view that "the purpose
[of the Mandates System] was to serve the people in undeveloped
parts, to safeguard them against abuses such as had occurred under
German Administration and such as might be found under other
administrations." (ltalics added.) 1 The concept of "the sacred
trust," the explicit norms and standards imposed on the Mandatory,
and the unprecedented machinery of international supervision, ail
had their animating principle in the desire of advanced nations
to protect and assist peoples not yet able to stand for themselves.
This Court confirmed the record of history when it said in rgso
that "the Mandate was created, in the interest of the iullabitants
of the territory, and of humanity in general, as an international
institution with an international object-a sacred trust of civili
zation." 1Inasmuch as the well-beingofthe inhabitants of mandated
territories constituteshe essential purpose of the Mandates System,
it is impossible to accept Respondent's contention that the Court
may not entertain disputes which are primarily concerned with
the well-being of such iullabitants.
To implement the design, machinery was created to supervise
the Mandator i ee~C.ouncil of the League was to receive every
year a report-of the Mandatory's stewardship; a Commission was
1 Quotedby Wright,Q., Mandates UndtJrliu League of Nations, The University
of Chicago Press, Chicago, 1930, pp. 35, 36.
1 btlemaliontJl sk&lusof Soulh-WtJsl Afriea, Advisory Opinion: J.C.J. Reports
1950,p.128 at132. OBSERVATIONS OF ETHIOPIA AND LIBERIA 459
constituted to receive and examine the annual reports and to advise
the Council on "ali matters relating to the observance of the
.mandates." It is significant that the authors of the Mandates
System included a supreme judicial power within the organic
structure of that System. Mandatories were required to agree
when a Mandate was conferred that disputes concerning the Man
date between themselves and another Member of the Organization
to which they belonged would be submitted to the Permanent
Court of International Justice. The Court, itself, was, like the Man
dates System, a creation of the Covenant. Far from objecting to
the establishment of a supreme judicial authority, the Council not
ouly accepted it as an ancillary of the Mandates System by "con
firming" the instrument in which it appeared, but also amended the
original draft so that the Mandatory, and only the Mandatory,
would be subject to compulsory jurisdiction at the instance of
1
another Member of the League Consistent with their fiduciary
role, Mandatories were required to consent to the Court's juris
diction in advance.
Compulsory jurisdiction in Mandate matters was instituted, then,
for the same reason that the Mandatory was required to submit
annual reports to the Council. When the League of Nations con
ferred mandates it was not content to depend solely upon the con
science, or, indeed, the competence of the Mandatory for the
proper exercise of the Mandate. Rather, it devised a system where
by the Mandatory's administration of the mandated territory was
made subject to the authority of the League and its Members to
require the Mandatory to report, account, and, if necessary, submit
to adjudication. The Permanent Court was intended as an integral
part of the System's supervisory machinery protecting the inhabi
tants, and the authorities so classify and regard it. • Each Member
of the League, under the defined circumstances, was empowered to
invoke the jurisdiction of the Court to insure that the basic purpose
of the Mandates system-the well-being and development of the
inhabitants-would be fulfilled.
Explicit indication of the intention of the authors of the Mandate
is found in the circumstances surrounding the compromissory
clause for the British Mandate for East Africa {Tanganyika Terri
tory). Two Judges of the Permanent Court considered that these
circumstances furnished definitive evidence that Members of the
League were not empowered, under compromissory clauses lacking
the additional paragraph contained in the East Africa Mandate, to
protect the rights of their own nationals before the Court, but could
orotect only interests of a general nature. •
1
See Report20, 1922,League of NationsOff.J., No. 7(1922) p. 84at854.count
IstiSeepp.r466--47I.
1 Dissenting Opinions by Judges de Bustamante anOda, Case oflhe Mavrom
matis Palestine Concessions, P.C.LJ., SeNo.2, 1924,at76, 85. SOUTH WEST AFRICA
As originally drafted, the compromissory clauses of the Mandates
comprised two paragraphs. The first of these was substantially in
the same form as Article 7 of the Mandate for South-West Africa
a9d other Mandates. A second paragraph, however, provided:
"States Membersof the League of Nations may likewisebring any
daims on behalf of their nationals for infractions of t1eir rights
under this mandate before the said Court for decision."
It is not clearly established whether this second paragraph was
excised by the Milner Commission, by the Powers which approved
the draft before submitting it to the Council, or by the Council
itself. The !act remains that it was in !act excised from ali Mandate
instruments, except that for East Africa. For the rest, only the one
paragraph text found in Article 7 of the Mandate for South- West
Africa remained. This history creates profound difficulty for
Respondent's contention that a "material interest" of a State, or
its nationals, must be affected before the compromissory clause may
be invoked since it demonstrates that there was at !east sorne
original thought that the general paragraph did not provide for the
daims of nationals at ali.
Respondent has submitted that the interpretation of Article 7
advanced by Applicants could not have been intended because if
effected it would prove unnecessary, impracticable, and would
require the Court to deal with political questions.
Respondent contends that to assume a "need for judicial super
vision" would be tantamount to anticipating the "probable failure"
ofthe Council to perform its own supervisory functions.' Respondent
also argues, in the same context, that if Member states could invoke
judicial process, they would "stand in the position of a custodian of
the rights of the inhabitants of the Mandated territories." 2
Applicants submit that neither argument is tenable. Judicial
recourse implies no distrust of administrative supervision. On the
contrary, its purpose in the Mandates System is to enforce the
Mandate through contentious proceedings, a power not vested in
the administrative or executive organs. Furthermore, Member
states are not "custodians," nor is their right to institute judicial
proceedings an "interference ... with the policies adopted by the
Mandatories," in Respondent's language. No other method of
i>litiating contentious proceedings is available, for only States may
be parties to such proceedings before the Court. The State does not
supervise; the State, rather, requests the Court to adjudicate a
dispute. In doing so, it may act as the instrumentality by which
the Supervisory Organization as a whole may obtain a binding
decision by a contentious proceeding.
1 Article13 of the British Mandate for East Africa (TanganyikTerritory).
League of Nations OffJ.No. 8 (Part II) (1922) at 868.
1 Respondent'sPreliminary Ob.fectiop. 384. ·'·'
OBSERVATIONS OF ETHIOPIA AND LIBERIA
Respondent expresses concern that hypothetically a Mandatory
might "satisfy" the Mandates Commission, yet be attacked judi
cially on the same point. This argument merely underlines the
importance of judicial jurisdiction in arder to obviate unresolved
disputes between the Mandatory, on the one hand, and Member
states on the other. If the Mandatory's position in such a dispute
were to be based upon decisions or policies of the Council and
Commission, the Court would no doubt give due weight to such
a record.
So far as concerns Respondent's implied criticism that the Court
might be induced "to act as an independent supervisory authority," 1
the !act is that only one contentious case, prior to the instant
cases, was instituted under the compromissory clauses of the
severa! mandates, and that the instant cases were brought only
alter years of unavailing negotiations with Respondent.
Respondent's fear that the Court would be improperly used, or
that the threat of proceedings would be used, minimizes the im
portance of the requirement that under Article 7 the Court may
entertain only disputes that "cannat be settled by negotiations."
This is an explicit bar to improper or excessive use of the compro
missory clause. The functioning of the entire system has properly
placed primary emphasis on the administrative organs, judicial
recourse being supplemerital, though vital. Each organ had its proper
sphere, as Quincy Wright main tains:
"These [League] organs are not ali eventually responsible to a
supreme authority. They are mutually independent. The League's
organization exemplifies the American theory of separation of
powers rather than the European practice of unified responsibility.
The Assembly, the Council, the Mandates Commission,the Secreta
riat, and theCourt ali enjoy certain independent powers under the
Covenant, the mandates, and other constitutional documents." 1
The principal role of the Court is to adjudicate disputes brought
toit, within the terms of the compromissory clauses, by Members
of the League when administrative resources have been !ully, and,
as in the instant cases, exhaustive! y employed.
Neither the Council, which approved both the Statute of the
·Court and the Mandate, nor the Court itself, seem to have been
concerned that "political" cases might be presented for adjudication.
Article 7 empowers the Cqurt to adjudicate cases relating to the
interpretation and application of aU of the provisions of the
Mandate; it makes no distinction between Article 2 and other
Articles. While Article 2 is broad in scope, it must be remembered
that in interpreting and applying it the Court would have the
advantage of the particular standards set forth in other Articles of
1
1Wright,eQ.,Mandates Under the League of Nations, The University of Chicago
Press, Chicago, 1930, p. 87. SOUTH WEST AFRICA
the Mandate and in the Covenant. These standards were the distil
lation of a century or more of experience in colonial administration
and were included in the constitutional documents of the Mandates
System because the ideals they expressed were being put into
practice by the System itself. The Court, therefore, would have in
interpreting and applying the Mandate, a framework of law,
doctrine, and practice upon which to rely
The words used in Article 2-"material and moral well-being,"
"social progress"-are akin to other words such as "due process"
and "equal protection" which national Courts are frequently called
upon to interpret. Such words are broad in scope, but in the context
of the society to which they pertain they embody meaningful norms.
ln the international society, the norms applicable to "the adminis
tration of territories whose peoples have not yet attained a full
measure of self-government" reflect the consensus ofali the Members
of the United Nations. They include the following principle and
doctrine:
"... to promote to the utmost ... the well-beingof the inhabitants
of these territories, and, to this end:
"a. to ensure, with due respect for the culture ofthe peoplescon
cerned, their political, economie, social, and educational advance
ment, their just treatment, and their protection agaiost abuses;
"b. to develop self-government,to take due account ofthe political
aspirations of the peoples, and to assist them in the progressive
development of their free political iostitutions, according to the
particular circumstances of each territory and its peoples and their
varying stages of advancement; ... " (Article 73 of the United
Nations Charler.)
And in the exercise of Trusteeships which in essence reflect the
same international concern as Mandates, Members of the United
Nations have agreed that Trust Territories shall be administered
so as "to encourage respect for human rights and for fondamental
freedoms for ali without distinction as to race, sex, language, or
religion, and to encourage recognition of the interdependence of the
peoples of the world." (Article 76 of the Charter.)
lt cannat be said, therefore, that the Court in interpreting Article
2 of the Mandate would be engaged in an essentially "political
activity," whatever Respondent may intend to connote by use of
that undefined phrase.
In the light of its refusai to accept and implement this Court's
Advisory Opinion of 1950, Respondent's argument that compulsory
jurisdiction is not needed for disputes involving the welfare of the
inhabitants because the Council of the League "could itself request
an advisory opinion from theCourt," 1has a somewhat ironie ring.
The cases at bar are perhaps the strongest vindication of the
foresight of the founders of the Mandates System in providing for
contentions proceedings against a Mandatory to enforce the pro-
1Respondent's Preliminary Objections, p. 284. OBSERVATIONS OF ETHIOPIA AND LIBERIA
visions of the Mandates for the benefit of inhabitants of mandated
terri tories.
The purpose of the Mandates System, its organizational structure,
and its experience support the judgment of Norman Bentwich to
the effect that the Court-
": .. stands there, behind, as it were, the Mandates Commission
and the Council of the League, as the supreme guardian of the rights
of nations in the fulfilment of the international trust which is con
ferred on the Mandatory, and as the embodiment of international
justice. Itis the Palladium of justice in the developmentofthe man
dated countries, just as the MandatesCommission1sthe Areopagus."
(Italics added.) 1
To conclude in the language of Respondent, it was indeed the
intention of the founders of the Mandates System to grant to each
Member of the League a "legal interest" in the observance by the
Mandatory of its obligations for the benefit of the inhabitants of
the Mandated territories.
2. The Weight of Authority
(a) J udicial Authority
{I) The MavrommatisCase'.
In the Mavrommatis Case, one of the key issues before the Perma
nent Court was whether jurisdiction was defeated because the
Applicant was espousing the daim of one of its nationals against
the Mandatory. This issue was divided into two parts: (r) whether
there was in fact a dispute between the Mandatory and another
Member of the League, or on!y between the Mandatory and a private
party; and (2) whether a dispute between the Mandatory and a
Member of the League conceming the priva te interests of a Member's
national was covered by the compromissory clause. The Court held
that the dispute was subject to the compromissory clause of the
Palestine Mandate, emphasizing that
"The dispute may be of any nature; the languageofthe article in
this respect is ascomr.rehensiveas possible (any dispute whatever
toutdif}bend, quel qu'•lsoit);but in every case it must relate to the
interpretation or the application of the provisions of the Mandate." •
The significance of the Court's holding is not that the right of
Greece to espouse the daim of ber national was recognized, so much
as that the right of espousal was strongly resisted and the Permanent
Court was divided on the question. In other words, there was doubt
1 Bentwich, N., The Mandai&SSystem, Longm.ans, Green and Co., London, 1930,
p.134·
1 The Matwommatis Palestim Concessions,P.C.I.J., Ser. A, N:z,1924.
3 Id.at 15, 16. SOUTH WEST AFRICA
on the part of certain members of the Court that the compromissory
clause was applicable at ali to disputes concerning nationals of
Member states. Respondent, on the contrary, contends that this is
one of the two major purposes for the clause. Although the Majority
Opinion of the Court in M avrommatis did not set forth explicitly the
actual major purposes of the clause, and was not called upon to do
so, it remains obvious that the M avrommatis case is not authority
for Respondent's contention that only the material benefits of
the Member states 'and their nationals were included within the
compromissory clause. Indeed, from a reading of the Minority
Opinions and the broad scope of the Majority Opinion, Applicants
submit that it was taken as axiomatic by the Court that Article 26
of the Palestine Mandate (the counterpart to Article 7) embraced
disputes pertaining to the welfare of the inhabitants of mandated
territories.
The Majority did not explicitly advert to this point, but the
Minority did. Judge Oda described the function of the Court as one
of "indirect supervision of the Mandatory," and added !hat "an
application by such a Member [of the League] must be made ex
clusively with a view to the protection of general interests ..." The
relevant excerpt is as follows:
"Under the Mandate, in addition to the direct supervision of the
Council of the League of Nations ... provision is made for indirect
supervision by the Court; but the latter may only beexercised at the·
request of a Member of the League of Nations (Article 26). It is
therefore to be supposed that an application by such a Member
must be made exclusively with a view to the protection of generalinter
ests and that it is not admissible for a State simply to substitute
itself for a private persan in arder ta assert his private daims."
(Italics added.)'
The Opinion of Judge de Bust amante in the same case contains
the following language:
"Whenever Great Britain as Mandatory performs in Palestine
under the Mandate acts of a general nature affecting the public interest,
the Members of the League-from which she holds the Mandate
are entitled, provided thal ali other conditions are fulftlled, to have
recourse to the Permanent Court. On the other band, when Great
Britain takes action affecting private interests and in respect of
individuals and private companies in her capacity as the Admin
istration of Palestine, there is no question of juridical relations
between the Mandatory and the Membersof the League from which
she holds the Mandate, but of legal relations between third Parties
who have nothing to do with the Mandate itself from the standpoint
of public law." (Italics added.) •
1Dissenting Opinion by Judge Oda, The Mavrommatis Palestine Concessions,
P.C.I.J.Ser.A, No. 2, 1924p. 85 at 86.
t Dissenting Opinion by Judge de Bustamante, The Mavrommatis PalestiCon~
cessions, P.C.I.Ser.A, No. 2, 1924p. 76 at 8182. OBSERVATIOXS OF ETHIOPIA AND LIBERIA
Speaking in the third Mavrommatis decision, Judge Nyholm
emphasized that the Court's supervisory jurisdiction constitutes a
form of "guarantee" that Mandatories would "act in accordance
with the principles adopted in the interests of the community of
nations by the Covenant." 1 He said:
"Mandatories were not to infringe the rights either of States or of
individuals. Each State therefore has a right of control which it may
1
exercise by applying to the Court."
(2) The case of Jerusalem-Jaffa District Governor and another v.
Sulet'man Murra and others. 2
Respondent cites .the above case to support the contention
that it was never intended that the Court entertain a suit based on
Articles of the Mandate such as Article 2, which are primarily for
the benefit of inhabitants of mandated territories, since "This
would then mean that the Court ... [would be] required to pronounèe
on ali matters of policy affecting the material and moral well-being
and the social progress of the inhabitants, which would ... [involve]
decisions of a purely political nature,"' and "where a legislature or
an administrative body acts within the scope of powers conferred
upon it, it is not the function of Courts of Law to inquire into the
policy or soundness of its acts. "'
Respondent bas not read the Jerusalem decision correct! y. In fact,
the case stands for the opposite of the proposition advanced by
Respondent. The question before the Court was whether a legislative
act of the Administration of Palestine was permissible under Article 2
of the Mandate. Far from declining to interpret Article 2 of the
Palestine Mandate (under which the Mandatory was responsible for
"safeguarding the civil and religious rights of ali the inhabitants of
Palestine irrespective of race and religion"), the Court conceived it
to be its dut y to interpret the Mandate. It bad to decide whether
Article 2 permitted expropriation without full compensation. In
rendering its decision, the Court not only interpreted Article 2 of
the Palestine Mandate, but passed upon an administrative act of
the Mandatory as weil.
In the language of the Court :
"In their Lordships' opinion the Supreme Court was lully justified
in entertaining an argument as to the validity of the Ordinance.
The Ordinance was made under the authority of the Orderin Council
of May4, 1923,and if and so far as it infringed the conditions of that
Order in Council the local Court was entitled and indeed bound to
1Dissenting Opinion by Judge Nyholm, Case of the Readaptation of the Mavrom·
matis ]erusalem Concession(Jurisdiction) P.C.I.J ., Ser. 11, 1927, p. 25 at 26.
2 1926 A.C. 321.
3 Respondent's Preliminary Objectionp. 38ü.
' Id. at 386. 387. SOUTH WEST AFRICA
treat it as void. Among those conditions was the stipulation that no
Ordinance should be promulgated which was repugnant to or in
consistent with the provisions of the Mandate, and in view of this
stipulation it was the: right and duty of the Court to examine
the térmsof the Mandate and to consider whether the Ordinance
was in any way repugnant to those terms.
"But it appears to their Lordships that the construction put by
the Supreme Court upon art. 2 of the Mandate is not justified by its
terms. The article stipulated that the Mandatory shaHbe responsible
for (among other things) 'safeguarding the civil and religions rights
of ali the inhabitants of Palestine irrespective of race and religion.'
... Nor does it, in their Lordships' opinion, mean that in every case
of expropriation for public purposes full compensation shall be
paid." 1
On!y after finding that there was no statutory basis for reversing
the administrative act did the Court employ the language quoted
by Respondent' That language has no special significance; it is
the expression of a policy followed by ali courts, namely, that courts
of law do not legislate. But where legislation exists-as in the
Mandate--courts will examine challenged administrative acts to
determine whether such acts violate the legislation.
(b) Scholarly Authority
Respondent cites four writers to support its limited view of
"interest" as a basis for invoking judicial supervision:3 Feinberg,
Judge McNajr, Wessels, and Schwarzenberger Two of these
writers do not, in fact, agree with Respondent.
M. Feinberg takes the position that a Member state can invoke
the compromissory clause against the Mandatory only when the
"interest" of a Member state or its national has been harmed by a
violation of the terms of the mandate. The learned author thereupon
inquires into what is meant by the word "interest" and quotes with
approval M. Salvioli to the effect that it is not possible to determine
a priori and in a precise manner the nature of an interest sufficient
to justify proceedings before the Court, and that the sufficiency of
"interest" must be decided in each case.' M. Salvioli also is quoted
with approval for discussing and underlining the case of The 5.5.
Wimbledon' In this connection, Feinberg says:
1
Jerusalem-JaOa District Governor and Anotherv. Suleiman llfurra and Others,
1922 A.C. 321 at 327, 328.
3 Feinberg,tN., La Juridiction de la Cour Permanente de justice Internationale
dans le Système des MandatsLibrairie Arthur Rousseau, Paris, 1930; MeNair, A. D.,
''Mandates," C.L.J.,Vol. 3, No. 2, 1928; Wessels, L. HDie Mandaat vir Suidwes
Ajrika (1938);Schwarzenberger,G.,lnternationalLaw,Vol. 1, ThirdEdition,Stevens
and Sons, London, 1957.
4 Feinberg, N., La Juridiction de la Cour Permanente de justice Internationale
dans le Système des Mandats,Librairie Arthur Rousseau, Paris, 1930, at 205.
5 The S.S. Wimbledon, P.C.I.J ., Ser. A, No. 1, 1923. OBSERVATIONS OF ETHIOPIA AND LIBERIA
"La Cour y a admis qu'il n'est point nécess"\.ire,pour la recevabilité
d'une requête, que l'Etat demandeur invoque un intérêtde nature
pécuniaire, mat·squ'un intérêm t oral peut ausst·êtresutfisant.
"La Cour s'est donc pronon<:ée pour une interprétation assez
large de la notion d"intérêt';c'est au mêmepoint de vue libéralqu'il
faut se placer dans le domaine des mandats, pour l'application de la
1
clause judiciaire." (Italics added.)
Feinberg coneludes this section as follows:
"Et à ce propos, un problème intéressant se pose. Un Etat pour
rait-il, en invoquant soit l'intérêttant matériel que moral de ses
citoyens juifs, so~ un intérêp toli#que propre, citer devant la Cour la
puissance mandataire pour la Palestine à raison de la violation par
celle-ci de l'une des clauses concernant l'établissement de Foyer
National Juif. Nous pensons que oui, et il peut êtreintéressant de
rappeler à ce propos que tout récemment le représentant de la
PologneM.Zaleski, prenant la parole au seindu Conseilde la S. d. N.
au sujet des troubles de Palestine, a souligné qu'il parlait comme le
«représentant d'un pays qui compte trois millions de Juifs.» N'est-il
pas pennis de déduire de Cette déclaration que ce n'est pas unique
ment en qualité de membre du Conseil, c'est-à-dire de l'organe de
contrôle, que la Pologne entendait prendre position à l'égardde événe
ments de Palestine, mais aussi en tant qu'Etat ayant la garde des
intérêtsvitaux des masses juives de sa population et int,éressé lui
même,du reste, à la solution du problème juif." (ltalics added.) '
It is obvions that M. Feinberg has a broader concept of "interest"
than Respondent.
Judge McNair is cited by Respondent on the basis of a question
he raised in rgzS, whether a Member state of the League was entitled
to invoke a compromissory clause, "merely seeking the faithful
3
observance of the terms of a Mandate." Any doubt Judge
McNair might have entertained in rgzS on this score obviously had
been resolved in his mind when he rendered his Separate Opinion
in the rgso Advisory Proceeding. Judge McNair stressed that
"Every State which was a Member of the League at the time of its
dissolution still has a legal interest in the proper exercise of the
Mandate." (ltalics added.)' This legal interest may be invoked,
Judge McNair stated, to effectuate the judicial supervision of the
Mandate.
Only two writers may be said, then, to support Respondent.
Arrayed against them on the point at issue are an impressive
number of other writers.
Norman Bentwich, jurist and Attorney General of Palestine
during the British Mandate f0r Palestine, has written:
1 Feinberg, N..La Juridictionde la Cour Permanente de justictInternationale
dans le Système des Mandats, Librairie ArtRousseau, Paris, 1930, p. 205.
2 Id.at 205, 206.
3 McNair, A. D., "Mandates",C.L.J., Vol. 3. No. 2, 1928, p. 157. n. 8.
4 Separate Opinion by Sir Arnold McNair, Internationalstatus of South-West
A/rica,Advisory Opinion: I.C.J. Reports 1950, p. 146 at 158. SOUTH WEST AFRICA
"The 1nternational Court bas not yet been called upon to deal
with the application or interpretation ofany of the other Articlescon
cerning public 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 Commission and the
Council of the League, as the supreme guardian of the rights of
nations in the fulfilment of the international trust which is conferred
on the Mandatory, and as the embodiment of international justice.
It is the Palladium of justice in the development of the mandated
countries, just as the Mandates Commission is the Areopagus."
(Italics added.) '
Quincy Wright, the American scholar and expert on the Mandates
System, has written in Mandates under the League of Nations:
"Every Member of the League can regard its rights as infringed
by every violation by the mandatory of its duties under the mandate,
even those primarily for the benefit of natives, and can make
representations which if not effective will precipitate a .dispute
referable to the Permanent Court of International Justice if nego
tiation fails to settle it."
Hales. a British scholar and student of the Mandates System, has
written:
"The aim of the general provision in the [Mandates] Statutes, in
my vieu;, is to encourage States Members of the League to keep a close
watch on the activities of the Mandatory Power and to challenge any
interpretation or application of the provisions of the Statutes which
would be contrary to those provisions, whether they relate to the welfare
of the natives, the rights offoreigners, the open-door policy or otherwise.
ft would appear, therefore, thal aState Member of the League need not
have any interest in the dispute, except thal of wanting to see a proper
3
application of the provisions of the Statutes." (Italics added.)
The late J udge Lauterpacht, in referring to the Court's 1950
Advisory Opinion, characterized the Court's holding that Article 7
remained in force in these words: "... the Court was unanimous in
holding !hat the judicial supervision continued ..."'
Miss Van Maanen-Helmer, another student of the Mandates
System, has written:
"The fact that a case involving the interpretation of a mandate
has been brought before the Court is an important precedent in
1 Bentwich, N., The Mandates System, Longmans, Green and Co., London, 1930,
p. 134·
t Wright, Q., Mandates Under the League of Nations, University of Chicago
Press, Chicago, 1930, p. 475·
3 Hales, James C., "The Creation and Application of the Mandate System,"
Tra11sactionsof the Grotius Society, Vol. 25, Sweet and Maxwell, Limited, London,
1940, p. 256.
• Oppenheim, L., International Law: A Treatise, Vol. I, Eighth Edition, ed. by
H. Lauterpacht, Longmans, Green and Co., London, 1955, p. 226, n. 3· OBSERVATIONS OF ETHIOPIA AND LIBERIA
that it shows that the status of a mandated territory is safeguarded
by international law as well as by the supervision of the political
institutions of the League of Nations." (Italics added.) 1
Chowdhuri, in his analysis of the Mandates System writes:
"Another common feature of both the Trusteeship and the Man
dates Systems is the express provision for indirect international
judicial supervision over the Administering Authorities." 2
Respondent in its Preliminary Objections refers t 0 the term
"judicial supervision" as a "colloquialism," 3 despite the use of
that term by Judges Lauterpacht, McNair, and Read and sorne of
the other writers mentioned above. Elsewhere in its Preliminary
Objections, Respondent refers to the "so-called supervision of the
Court." 4 Before the United Nations forum, however, Respondent
has demonstrated a broader appreciation of the need for, and sig
nificance of, judicial supervision.
Ambassador Jooste, then Respondent's Representative to the
Fourth Committee of the General Assembly, in explaining why
negotiations with the General Assembly's Ad Hoc Committee had
failed, is reported to have stated:
"Since his Government had every intention of continuing to carry
out the spirit of the sacred trust, it had decided to agree to assume a
new international obligation in that respect. It had therefore propo
sed that a new international instrument shouldbeconcluded, reviving
articles 2 to 5 of the original Mandate, with minor amendments,
and also reviving South Africa's international commitment to carry
out the sacred trust. lt had felt that that would finally place the
legal relationship between the Union of South Africa and the
Territory of South West Africa beyond ali further doubt.
"That solution had appeared to commend itself to the Ad Hoc
Committee, which had, however, also desired that some provisions
should be made for international supervist'on. The South African
Government had otfered to submit to fudicial supervision and to accept
in that connexion the compulsory furisdiction of the 1nternational
Courtof Justice. That proposàl, however, had not been regarded as
adequate by the Ad HocCommit!<,.and no agreement had therefore
been reached on that point." (ltalics added.)'
By equating "judicial supervision" with "international super
vision" Respondent displayed an understanding of what "judicial
supervision" means in the context of mandates or analogons
institutions.
1 Van Maanen-Helmer, E., The Mandates System in Relation to Africa & tM
Pacifie IslandsP. S. King & Son, Ltd., London, 1929, p. 158.
1 Chowdhurî, R. N.,International Mandates and Trusteeship Systems:A Com-
parative Study, Martinus Nijhoff, The Hague, 1955, p. 168.
3 Respondent's Preliminary Objectionp. 394·
4 Id. at 372.
' U.N. Gen. Ass. Off. Rec. 8th Sess., Fourth Comm., 357th Meeting, p. 266
(U.N. Doc. A/C.4/SR. 357) (1953).470 SOUTH WEST AFRICA
In connection with Respondent's own understanding of judicial
supervision, Applicants again respectfuliy direct the Court's
attention to Respondent's Statement in the 1950 Advisory Pro
ceedings, which, in Applicants' view, clearly demonstrates that
Respondent "has nonetheless conceded that Article 7, if in force,
entitled League members to institute proceedings to uphold the
rights of inhabitants of the Territory." 1
Respondent now daims that its statement referred only to the
right of League Members "to participate in the proceedings of
the League as the supervisory body in respect of Mandates, and
not to their -right to institute judicial proceedings under Article
7-" 2 In support thereof, Respondent then quotes a further passage
from its rgso Statement, 2 but ali that passage says is that no
State may invoke Article 7 because the League has been dis
solved, which is a different proposition than that of whether, if
Article 7 is in force, it may be invoked to uphold the rights of in
habitants of the Terri tory.
In fact, Dr. Steyn, Respond~n Rte'rssentative in the 1950
Proceedings, displayed no ambiguity at ali in his statement. This
is what he said:
"Rights of the peoples of South-West A/rica
"57. Itmay alsobe argued, as the representative ofthe Secretary
General has pointed out, that even though the Mandate has lapsed
as between the Union of South Africa and the League of Nations,
it nevertheless continues to exist as between the Union and the
peoples of South-West Africa.
"\Vith your permission, 1 shall llO\\deal with that argument." 3
•
• •
[Dr. Steyn then contends !hat the inhabitants of the Territory
were not a party to Article 22 of the Covenant or to the Mandate
itself; nor was there a stipulationn favour of the inhabitants as a
third party; nor did the inhabitants acquire any rights as a legallv
competent community.]
Under the same heading, "Rights of the peoples of South-West
Africa," Dr. Steyn then proceeds to discuss whether other parties
could uphold the rights of inhabitants. He states:
"6z. \Vhile the League of Nations was in existence, third States,
if they were Members of the League, had legal rights in respect
of mandated territories. The procedure envisaged in Articles II (2)
and IÇ of the Covenant could be invoked in case a mandatory failed
to implement its obligations. Moreover, any dispute between a man
datory and another Member of the League relating to the interpretation
1 Memorials, p. 93·
3 Respondent's PreliminarObjections, p. 392.
Internationastatus of South-West AjricPleadings, Oral Arguments, Docu
ments, p. 273 at 288. OBSERVATIONS OF ETHIOPIA AND LIBERIA 471
or the application of the provisions of the Mandate could be submitted
to the Permanent Court of International justice. The League of
Nations itself, as an organization, had supervisory powers in respect
of the administration of mandated territories and granted1to the
inhabitants the right to petition in a prescribed manner."(Italics
added.)
•
* ~'
[Dr. Stevn then proceeds on the question of the rights of inhabi
tants, and"makesthe statements which are quoted on page 64 of the
Memorials.]
If Dr. Steyn did not consider that Article 7 was for the benefit
of the inhabitants, why did he discuss it under the heading: "Rights
of the Peoples of South-West Africa ?" If ali thal he mean! was that
League Members could participate in League proceedings to up
hold the inhabitants' rights, as Respondent now contends, why did
Dr. Steyn mention Article 7 at ali? And why did he mention
Article 7 right alter mentioning Articles II (z) and 19 of the Cave
nant, which provide for participation in League proceedings, and
begin the reference to Article 7 with the ward "moreover?"
Applicants ,reaffirm the statement made in their Memorials:
"Moreover, ~althou tgh Union has denied that Article 7 is in
force, the Union has nonetheless conceded that Article 7, if in
force, entitled League Members to institute pr2ceedings to uphold
the rights of inhabitants of the Territory."
(c) Summary
Although Article 7 is clear in stating "any dispute whatever
concerning the interpretation and application of the Mandate,"
Respondent has now attempted to import into Article 7 a further
unstated requirement, that the "material interests" of the Appli
cant State or its nationals must be involved. The contention
ignores the crucial reason why the Mandates System endowed
Member States with a legal interest in the proper exercise of the
Mandate, and would effectively eradicate judicial supervision as a
means ofenforcing compliance with the obligations ofthe Mandatory.
The proposition that Article 7, or any other Article, should be
read as embodying qualifications not stated therein can be sus
tained only by authority of the highest standing. Yet Respondent
has cited only two writers who in !act support its contention. In
square disagreement with the two writers are Judges Oda, Busta
mante, Nyholm, McNair and Read, ali of whom considered the
point in judicial proceedings relating to Mandates, the numerous
other writers mentioned above, and Respondent's own previous
position.
1 l d., 289-290.
2 Memorials, p93· SOUTH WEST AFRICA
472
J. Applicants Have a "Material Interest" in the Instant Cases
Respondent devotes much attention to "material interest" and
"legal interest" in its Preliminary Objections, but does not defme
or analyze those terms.
"Legal interest" does not require extensive discussion. As Appli
cants have demonstrated herein, they come within the descriptive
category of States entitled to invoke Article 7 in accordance with
its terms. Thus they have a legal interest because Article 7, to
which Respondent agreed to be bound, endowed them with such
an interest.
In regard to "material interest," Applicants submit that Respon
dent advances far too narrow a definition of the term. States in
the contemporary world do not regard their highest national in
terests as limited to actions by other States which directly and
immediately affect them or their nationals. 1 The reasons under
lying national interest may be many, including strategie, humani
tarian, moral, ideological, political, economie-or any combination
thereof.
With respect to "peoples not yet able to stand by themselves,"
in the words of the Covenant, or "peoples who have not yet at
tained a full measure of self-government," in the words of the
Charter, it is obvious that States have considered their interests
involved in the welfare of the inhabitants of such areas. How else
explain their adoption of Article 22 of the Covenant and their
creation of the Mandates System? How else explain Chapters XI
and XII of the United Nations Charter and the creation of the
Trusteeship System? Indeed, the Covenant, the Charter, the
Mandates System, and the Trusteeship System ali are witness to
the fact that States have considered their .aforementioned interest
to be of the highest order-"a sacred trust."
The proceedings in the United Nations are further evidence of
the interest of States. For more than ten years, State alter State
has disputed with Respondent in regard to the Mandate, both in
the General Assembly itself and in its Fourth Committee. These
·States have obviously considered it their interest to assure that
Respondent abide by its undertakings in the Mandate and in
Chapter XI of the Charter.
Respondent is not entitled unilaterally to define the permissible
scope of interests of other States. Contrary to Respondent's posi
tion, most States, in the increasingly inter-related community of
nations, today regard the problems of Jess developed areas as a
matter of great importance to their own welfare.
Applicants believe that their interest in the proper exercise of
the Mandate, and the interests of ali other States similarly situated,
refièct the highest international concern, and have, therefore,
instituted these proceedings in accordance with the terms of
1
SeeRespo~den co'tntion at p. 379, Preliminary Objections. OBSERVATIO~S OF ETHIOPIA AND LIBERIA 473
Article 7 of the Mandate. In any meaningful sense of the term,
interests of such scope and nature must be regarded as "material
interests."
C. THE DisPUTE CANNOT BE SETTLED Bv NEGOTIATION
Chapter II of Applicants' Memorials and Chapter II of Respon
dent's Preliminary Obfections set forth lengthy accounts of more
than ten years' negotiations between Respondent and Members
of the United Nations, including Applicants, in which each side
has offered its views and has heard the views of the other.
Such negotiations have been variously and successively attempted
through an Ad Hoc Committee, a Good Offices Committee, the
Fourth Commit tee of the General Assembly, and the Committee on
South West Africa. Alter more than ten years of frustrated efforts
at negotiation, the General Assembly concluded in a Resolution
adopted in 1960, that "the dispute which has arisen between
Ethiopia, Liberia and other Member States on the one hand, and
the Union of South Africa on the other, relating to the interpre
tation and application of the Mandate has not and cannat be settled
by negotiation." (ltalics added.) 1 This is a finding of !act by the
highest administrative organ of the United Nations. 1t embodies a
conclusion amply warranted by an exceptionally full record.
Despite the foregoing record, Respondent professes the view
that the dispute can be settled by negotiation. lt omits to state,
however, the unspoken qualification shown by the lengthy record:
negotiation can succeed only upon acceptance of Respondent's
conditions and interpretations.
Respondent, itself, has frequently avowed the failure of nego
tiations. The following are illustrative examples:
"As the tenns of reference of your Committee appear to be even
more inflexible !han those of the Ad Hoc Committee the Union
Government are doubtful 1J!!hethetrhere is any hope that new nego
tiations within the scope of your Committee's tenns of reference willlead
ta any positive results(ltalics added.) '
•
• •
"It is also mentioned in your letter that the Committee on South
\Vest Africa is ready to continue negotiations with the Union in
order to implement fully the advisory opinion of the International
Court of Justice regarding the question ofSouth West Africa and the
Committee invites the Union Government to nominate a represen
tative to confer with it.
"The Union Government have consistent/y maintained that the
--1,Resolution 1565 (XV) of 18 December 1960, U.N. Gen. Ass. Off. Rec. 15th Sess.,
Supp. No. 16 at 32 (A/4684) (196o).
2 Letter dated 25 March 1954 from the Permanent Representative of the Union
of South Africa to the United Nations, addressed to the Chairma.nof the Committee
on South West Africa, Report of the Committee on South West Africa, U.N. Gen. Ass.
Off. Rec. 9th Sess., Supp. No. 14, Annex I (c), p. 6 at 7 (A/2666) (1954).
JI474 SOUTH WEST AFRICA
Mandate in respectof South West A/rica has lapsed and thal they have
no other international commitments as a result of the demise of the
League of Nations. Nevertheless, in arder to find a solution which
would remove the question from the United Nations, they offered
to enter into an arrangement with the three remaining Principal
Allied and Associated Powers. This offer was repeatedly rejected by
the United Nations on the grounds that it did not provide means
whereby the advisory opinion of the International Court of Justice
could be implemented. In the circumstances that offer bas now
lapsed. As there bas been no material change in the position as
outlined in my communication of 25 March 1954, the Union Gov
ernrnent have come to the same conclusion as they did last year,
namely, that they cannat see that further negotiations would lead to
any positive results."(Italics added.)1
•
• •
"Vou also state that the Committee remains ready ~o continue
negotiations with the Union of South Africa in arder to implement
lully the advisory opinion of the International Court of Justice
regarding the question of South West Africa and therefore invites
the Union Govemment to designate a representative to confer with
it.
"In my communications sent to you on 25 March 1954 and 21 May
1955, 1 conveyed to you the views of my Government concerning
the submission of reports and petitions as well as the renewal of
negotiations with your Committee. As there has in the meantime been
no material changein the position outlined in my previous communic
ations the attitude of the Union Government remains unchanged."
(Italics added.)2
As the General Assembly has repeatedly found in Resolutions
adopted by overwhelming majorities, Respondent has refused,
and continues to refuse, to act on the basis of its international
responsibilities under the Mandate, in the teeth of the Advisory
Opinion of this Court. This remains the centre and core of the dispute
between Applicants and Respondent. The very contentions ad
vanced by Respondent in its Preliminary Objections clearly demon
strate that its continuons, historie position persists. By its own
contentions it proves, if proof is needed, that the dispute cannat
be settled by negotiation.
1 Letter dated 21 May 1955 from the Deputy Permanent Representativof the
Union of South Africa to the United Nations, addressed ta the Chairman of the
Committee on· South West AÙica, Report of the Committee on South West Africa,
U.N. Gen. Ass. Off. Rec. wth Sess., Supp. No. 12, A1(c), p. 7 (A/2913) (1955).
2 Letter dated 21 April 1956 from the Deputy Representativof the Union of
South Africa to the United Nations, addressed to the Chairman of the Committee
on South West Africa, Report ofthe Committee on South West Ajrica, Gen. Ass.
Off. Rec .. 11th Sess., Supp. No. 12, Annex I (b), p. 4 (A/3151) (1956). OBSERVATIONS OF ETHIOPIA AND LIBERIA 475
Vl
THE HUMANITARIAN OBJECTIVES OF THE MANDATE
CALL FOR AN INTERPRETATION WHICH WILL MAKE
THE MANDATE EFFECTIVE TO SERVE ITS PURPOSES
Applicants respectfully submit that on the basis of the strictes!
reasonable interpretation of the Mandate instrument ail jurisdic
tional prerequisites of Article 7 are satisfied in the cases at bar.
Nevertheless it would merely ignore the destiny of a multitude of
human beings whose welfare is a charge upon the conscience of
civilization, if Applicants were to pass over in silence the over
riding humanitarian importance of these cases and their similarity
to certain other cases before this Court and its predecessor, the
Permanent Court.
Precedent, reason and elemental principles of justice support
the proposition that the issues presented to the Court in these
cases are not of a kind to be handled within narrow and rigid bounds.
Article 7 of the Mandate for German South West Africa must be
interpreted in the context and spirit of the Mandate itself and Ar
ticle 22 of the Covenant of the League of Nations. 1 It is in this
manner, and this manner alone, that the Mandate will be able
to serve the humanitarian abjects for which it was created. "That
interpretation is to be favoured which will make the instrument
effective to serve its purpose. No rules of interpretation, therefore,
can be of universal validity, applicable in the same way to ali
international instruments." 2
Article 22 of the Covenant of the League of Nations clearly sets
forth the purpose of the Mandates System-ta create a "sacred
trust of civilization" for the "well-being and development" of the
inhabitants of the mandated territories. To accomplish this goal the
Mandate for German South West Africa was created as an inter
national institution embodying specifically certain international
obligations. As pointed out by the Court in International status of
3
South-West Ajrica, these international obligations were of two
kinds. The first, embodied in Articles 2to 5 of the Mandate, corres
ponded to the "sacred trust of civilization," while the second, set
out in Articles 6 and 7, "related to the machinery for implemen
tation." 3
1 See Oppenheim, LInternational LaA Treatise, Vo1,Fourth Edition, ed. by
A. D. McNair, Longmans, Green and Co., London, 1928, Section 554(4), p. 761 at 765.
1 Hudson, M. 0.,The Permanent Courl of International juA Treatise, The
Macmillan Company, New York, 1943, p. 651.
1 Advisory Opinion: I.C.J. Reports 1950, p. 128 at 133· SOUTH WEST AFRICA
"These obligations [the first above mentioned] represent the very
essence of the sacred trust of civilization. Their rm:son d'être and
original object remain. Since their fulfilment did not depend on the
existence of the League of Nations, they could not be brought to
an end merely because this supervisory organ ceased to exist. Nor
could the right of the population to have the Territory administered
in accordance with these rules depend thereon." 1
Since Article 7, as Article 6, is a vital provision, necessary
for the implementation of this "sacred trust of civilization," it
should be interpreted liberally so as to give effect to the humani
2
tarian abjects of the Mandate.
For the Court to interpret liberally a treaty provision such as
Article 7 of the Mandate, which is embodied in a humanitarian in
strument, will be in accord with a long line of cases decided by the
International Court of Justice and its predecessor, the Permanent
Court of International Justice. As pointed out by Sir Hersch
Lauterpacht in The Development of International Law by the Inter
national Court,
"... in a considerable number of cases the Court, in interpreting
international law, has becn in fact confronted with a choicc between
the principle of the minimum of restrictions upon the sovereignty
of States and the attribution of full effect to what appears to be the
purpose of the obligations binding upon or undertaken by them.
VVehave seen that the result of that choice has been such that the
jurisprudence of the Court in this sphere can to a large cxtcnt be
conceived in terms of a restrictive interpretation of daims of State
sovcrcignty. lt is sufficient to recall the rejection of the rule of
absolute unanimity in the interpretation of the Covenant of the
League of Nations; the cases of affirmation of the competence of the
Court through a bold interpretation of jurisdictional clauses; the
assumption of an implied submission by the parties and the dis
regard of requirements of form; the interpretation of ~1inorities
Treaties in favour not of States but of the system of protection of
minorities, and, generally, the construction of clauses providing for
equality of treatment in a manner calculated ta secure their obser
vance not only in law, but also in fact; the wide interpretation of
the scope of the competence of the International Labour Organi
zation and of other international organs such as the International
River Commissions; the recognition of the prohibition of abuse of
rights; the pronouncements confining within its proper scope the
exception of domcstic jurisdiction bath under Article 15 of the Cave
nant of the League of Nations and elsewhere; and the emphasis
upon the superiority of international obligations over municipal
3
law."
1
2 See \Voolsey, T.D.Introduction tothe Study of International LFifth Edition,
Charles Scribner's Sons, New York,1879. Section 113(5) p. 181; Vattel,The Law
of Nattons orthe Principles of the Laws of Natured. by J. Chitty, Johnson & Co.,
Philadelpha 1858, Chapter 17, Section 290, p. 257.
1Lauterpacht, H., The Development of International Law by the InternaHonal
Cot,rt,Stevens and Sons, London, 1958, p. 297· OBSERVATIONS OF ETHIOPIA AND LIBERIA 477
One of the prime examples of the foregoing principle is the
Permanent Court's interpretations of the Minorities Treaties
which were enacted alter World War I for the protection of racial,
religions and linguistic minorities against discrimination. To give
effect to the purpose of these treaties the Court continually looked
to the probable consequences of laws which on their face appeared
to be non-discriminatory. In each case the question was whether
there was discrimination in fact as weil as in law. In every one of
these cases it was argued that the Court should interpret the pro
visions of the Treaty restrictively becausc it represented an inter
national regime restrictive upon national sovcrcignty. The Court,
however, rejected these contentions and interpreted the Treaty
provisions liberally so as to implement the prohibitions against
discrimination. A representative example is the Advisory Opinion,
1
Minority Schools in Albania. In the consideration of the problem
before it, the Court received the views of the two States most
immediately interested, Albania and Greece. The Court referred to:
"The contention of the Albanian Government ... that the above
mentioned clause imposed nOother obligation upon it, in educational
matters, than to grant to its nationals belonging to racial, religious
or linguistic minorities a right equal to that possessed by other
Albanian nation ais. Once the latter have ceased to be entitled to have
private schools, the former cannat daim to have them either ...
On the other hand, it is argued, any interpretation which would
campel Albania to respect the private minority schools would
create a privilege in favour of the minority and run counter to the
essential idea of the law governing minorities. Moreover, as the
minority régime is an extraordinary régime,constituting a derogation
from the ordinary law, the text in question should, in case of doubt, be
construed in the manner most favourahle to the sovereignty of the Al
banianState." (ltalics added.)'
The Court, stressing the importance of the purpose of protecting
minorities, reiterated a statement made in an earlier case, of the
need to assure that the minorities enjoyed "equality in !act as
weil as ostensible legal equality in the sense of the absence of dis
crimination in the words of the law," 3and concluded that the plea
of the Albanian Government was not weil founded.' The same
principle was enunciated by the Court in Treatment of Polish
Nationals in the Danzig Territory:
"lt should be remarked in this connection that the prohibition
against discrimination, in order to be effective, must ensure the
absence of discrimination in fact as well as in law ... Whether a
measure is or is not in fact directed against these persans is a
1 Advisory Opinion, P.C.I.J., Ser. A/B. No. 64, 1935·
1 Id.at 15.
* Id.at 19.
4 Id.at 23. SOUTH WEST AFRICA
question to be decided on the merits of each particular case. No
hard and fast rule can be laid down." 1
In the Advisory Opinion, German Settlers in Poland, • the Court
considered whether the competence of the Council of the League
of Nations under a Minorities Treaty extended to the interpretation
of another treaty under which Poland sought to justify her treat
ment of a German minority in Poland. Before handing down its
opinion, the Court heard statements on behalf of the Polish and
German Governments. The competence of the Council of the League
.of Nations was based upon Poland's consent as embodied in the
Minorities Treaty, and an expansive interpretation of that pro
vision would be attended by a corresponding degree of restriction
upon Poland's sovereign freedom of action. Poland argued that her
actions were pursuant to rights conferred upon her by Article 256
of the Treaty of Versailles and that the interpretation of that
Treaty was beyond the jurisdiction of the Council of the League
acting uoder the Minority Treaty. Had the Court been persuaded
by Poland's restrictive interpretation argument, it could have
easily construed the provision in question in accordance with the
Polish contention. Instead, the Court rejected the Polish conten
tion, as follows:
"... The Court is unable to share this view. The main abject of
the Minorities Treaty is ta assure respectfor the rights of Minorities
and to prevent discrimination against them by any act whatsoever
of the Pol.ishState. It does not matter whether the rights the in
fraction of which is alleged are derived from a legislative, judicial or
administrative act, or from an international engagement. If the
Council ceased to be competent whenever the subject before it
involved the interpretation of such an international èngagement,
the Minorities Treaty would to a great extent be deprived of value.
The reasons urged by Poland for a restrictive interpretation of
the Treaty do not justify the Court in thus construing it ... In
arder thal the pledged protectiounder the Minorities Treaty] may be
certain and effective,it is essential that the Council, when acting
under the Minorities Treaty, should be competent, incidentally, to
consider and interpret the laws or treaties on which the rights
claimed to be infringed are dependent." (Italics added.) •
In short, the Court préferred a liberal interpretation of the pro
vision in question to one which would have denied effective en
forcement of the Treaty, the humanitarian abject of which was the
protection of minorities. The Court also pointed out that to satisfy
a treaty requirement of non-discrimination,
"There must be equality in!act asweilasostensiblelegalequality in
the sense of the absence of discrimination in the words of the law." •
TretUment of Polish Nationals and Other Persans of Polish Origin or Speech in
th~P.C.I.J ., Ser. B, No. 6, 1923.nion, P.C.I.J., Ser. A/B, No. 44, 1932, at 28.
1 Id.at 25.
" Id.at24. OBSERVATIONS OF ETHIOPIA AND LIBERIA 479
In a similar vein, the Court in Acquisition of Polish Nationality, 1
stated:
"... ·Poland, by consenting, in Article 12 of the Treaty, to the
precedingArticles being placed under the guaranty of the League of
Nations in so far as they concern persons belonging to racial or
linguistic minorities, also consents to the extension of this protection
to the application of Articles 3 to 6.
"... an .interpretation which would deprive the Minarities Treaty
of a great part of its value is inadmissible." 1
Further support for the contention that international instru
ments which have as their object the betterment of humanity
should be interpreted liberally so as to give full effect to their
purpose can be found in the Permanent Court's interpretation of
the scope of international organizations. In the Case Relating to
The Territorial ]urisdiciion of the International Commission of the
River Oder, 3 brought by the United Kingdom, Czechoslovakia,
Denmark. France, Germany and Sweden against Poland, the.
Court was faced with the question of whether the Commission's
jurisdiction extended to tributaries of the Oder within Poland.
In reaching its conclusion that the Treaty of Versailles, in contra
distinction to most previous treaties, provided for complete inter
nationalization of the waterways in question and their free use for
ali States, the Court disposed of a contention by Poland concerning
princip! es of interpretation:
"Nor can the Court, on the other band, accept the Polish Gov
emment's. contention that, the text being doubtful, the solution
shouldbe adopted whichimposesthe !east restriction on the freedom
of States. This argument, though sound in itself, must be empioyed
only with the greatest caution. To rely upon it, it is not sufficient
that the purely grammatical analysis of a text should not lead to
definite results; there are many other methods of interpretation, in
particular, reference isproperly had to the principles underlying the
matter to which the text refers; it will be on!y when, in spite of ali
pertinent considerations, the intention of the Parties still remains
doubtful, that the interpretation should be adopted which is most
favourable to the freedom of States."'
In Employment of Women During the Night, the Court held that
a prohibition against women's working at night adopted by the
International Labor Conference in 1919 applied to women who held
management and supervisory positions and were not ordinarily
engaged in manual work. The Court reached this conclusion even
after it admitted that the authors of Part XIII of the Treaty of
1 Advisory Opinion, P.C.I.J., Ser. BNo.], 1923.
2 Id. at16-17.
1 P.C.I.J.Ser. A, No. 23, 1929.
" Id. at 26.
' lnterpt'etalion the Convention of I9I9 ccncerning Employmenl of Women
During the Nighl,Advisory Opinion, P.C.I.J., Ser. A/B, No.so,1932. SOUTH WEST AFRICA
Versailles, providing for the creation of the International Labour
Organisation, bad as their main preoccupation the amelioration
of manual workers. It was the view of the Court that the Organi
sation need not circumscribe the scope of its activity so closely.
The humanitarian purpose of the Organisation acted as an affirm
ative force in the Court's expansive interpretation of its scope.
In the case of the Competence of the International Labour Organi
sation to Regulate, Incidentally, the Persona/ Work of the Employer, 1
and Tire Regulation of the Conditions of Persans Employed in Agri
culture, 2 the Court was asked whether the competence of the
International Labour Organisation extended into areas concerning
which Part XIII of the Treaty of Versailles was silent. A restrictive
interpretation in either case would clearly have led to a negative
answer, but the Court preferred to imply the competence of the
Organisation in both areas because to do so would be consistent
with the purposes and object of the Organisation. Thus, in The
Regulation of the Conditions of Persans Employed in Agriculture,
the Court said:
"It was much urged in argument that the establishment of the
International Labour Organisation involved an abandonment of
rights derived from national sovereignty, and that the competence
of the Organisation therefore should not be extended by inter
pretation. There may be sorne force in this argument, but the ques
tion in everv case must resolve itself into what the terms of the
Treaty actuâlly mean, and it is from this point of view that the
Court proposes to examine the question.
"As Part XIII express!y declares, the designof the Contracting
Parties was to establish a permanent labour organisation. This in
itself strongly militates against the argument that agriculture, which
is, beyond ail question, the most ancient and the greatest industry
in the world, employing more than half of the world's wage earners,
is to be considered as left outside the scope of the International
Labour Organisation because it is not expresslv mentioned b,·
name." 3 • •
This Court bas followed the same approach in .interpreting
international instruments which have as their predominant pur
pose the betterment of mankind. In both Etfect of awards of
compensation made by the U. N. Administrative Tribunal, • and
Reparation for injuries sutfered in the service of the United
Nations,' the Court was faced with questions concerning powers of
the United Nations. In neither case was there a specifie grant of
power over the matter in question in the Charter of the United
Nations. In both cases, however, the Court found the requisite
1 Advisory Opinion, P.C.I.J., Ser. B, No. 13, 1926.
2 P.C.I.J ., Advisory Opinion, Ser. B, No. 2, 1922.
3 Id.at 23-25.
• Advisory Opinion, I.C.J. Reports 1954, p. 47·
6 I.C.J. Reports 1949, p. 174. OBSERVATIONS OF ETHIOPIA AND LIBERIA
power arising by necessary implication out of the Charter itself
alter investigating the character and aims of the Organization.
In Reservations to the Convention on Genocide, 1 the Court was
asked to decide whether reservations to the Convention could be
made, and if so, what were their validity and effect in the absence
of any specifie provision. Even though the factual situation is not
in point, to be noted is the manner in which the Court used the
humanitarian objectives of the Convention as a guide to its deci
sion. The Court stated:
"The objects of such a convention must also be considered. The
Convention was manifestly adopted for a pm·ely humanitarian and
civilizing purpose. It is indeed difficult to imagine a convention that
might have this dual character to a greater degree, since its object
on the one hand is to safeguard the very existence of certain human
groups and on the other to confirm and endorse the most elementary
principles of morality. In such a convention the contracting States
do not have any interest of their own; they merely have, one and ail,
a common interest, namely, the accomplishment of those high pur
poses which are the ..raison d'êtreof the convention. Consequently,
in a convention of this type one cannat speak of individual advanta
ges or disadvantages to States, or of the maintenance of a perfect
contractual balance between rights and duties. The highidealswhich
inspired the Convention provide, by virtue of the common will of
the parties, the foundation and measure of ail its provisions." 2
As the Court pointed out, when interpreting international obli
gations such as are embodied in the Mandate, the purposes of
which are essentially humanitarian, the high ideals which underlie
the agreement, rather than the individual advantages or disadvan
tages to any State, should provide the measure of ali the provisions.
The implementing provisions of such agreements, being of such
paramount importance, should, therefore, be interpreted liberally,
in the spirit of the whole agreement.
This mode of interpretation has already been accepted by the
Court in interpreting Article 6 of the Mandate. 3 In the Advisory
Opinion the Court concluded that Respondent is required to
submit to the supervision of the General Assembly of the United
Nations and render annual reports thereto. In reaching its conclu
sion, the Court interpreted Article 6 of the Mandate so as to accom
plish its purposes. The Court thus established the effectiveness of
one of the implements for the enforcement of this "sacred trust of
civilization." Applicants respectful!y submit that a restrictive
interpretation of Article 7 of the Mandate would be inconsistent
specifically with the Advisory Opinion and in general with al! the
1 I.C.J. Reports 1951, p. 15.
2 Id.at 23.
3 See International status of South·West A/Advisory Opinion: I.J. Reports
1950,p. 128. SOUTH WEST AFRICA
cases set forth above. As Applicants have pointed out herein, the
jurisprudence both of the Permanent Court and of this Court
and the writings of distinguished commentators have uniformly
underscored the need to interpret the provisions of Article 7 in the
spirit of the Mandate as a whole, so as to give complete effect to
the humanitarian objectives of the Mandate instrument. OBSERVA TIONSOFETHIOPIAANDLIBERIA
VII
SUE MISSIONS
WHEREFORE,MAYIT PLEASETHISHONOURABLE COURTto dismiss
the Preliminary Objections raised by the Government of the Republic
of South Africa in the South West Africa Cases, c.nd to adjudge
and declare that the Court has jurisdictio'n to hear and adjudicate
the questions of law and !act raised in the Applications and Memor
ialsof the Governments of Ethiopia and Liberia in these Cases.
Agents for the Government Agents for the Government
of Ethiopia of Liberia
(Signed) TESFAYEGEBRE-EGzy (Signed) jOSEPHCHESSON
(Signed) ERNESTA. GROSS (Signed) ERNESTA. GROSS
The Hague, March I, 1962 SOUTH WEST AFRICA
Annexes to the Observations of the Governments of Ethiopia and Liberia
AnnexA
COVENANT OF THE LEAGUE OF NATIONS
ARTICLE 22
[See AnnexA to the Memorial, p. 200,supra]
Annex B
MANDATE FOR GERMAN SOUTH WEST AFRICA
[See Annex B to the Memorial,p. 20I,supra] OBSERVATIONS OF ETHIOPIA AND LIBERIA
LIST OF THE RELEVANT DOCUMENTS
Article 22 of the Covenant of the League of Nations and the Mandate
for South-West Africa are printed herein as Annexes A and B, re
spectively.
The remainder of the documents listed below were filed with the
Registrar of the Court, either at the time of the filing of Applicants'
Memorials, or incidental to the filing of these Observations, in accordance
with Article 43 of the Rules of the Court.
!. Documents of the United Nations
A. Resolutions of the General Assembly
1. U.N. Gen. Ass. Off. Rec. 5th Sess., Supp. No. 20 (A/1775)
(r95o).
2. U.N. Gen. Ass. Off. Rec. 6th Sess., Supp. No. 20 (A/2rr9)
(1952).
3· U.N. Gen. Ass. Off. Rec. 8th Sess., Supp. No. 17 (A/2630)
(r953).
4· U.N. Gen. Ass. Off. Rec. 15th Sess., Supp. No. r6 (A/4684)
(rg6o).
B. Records of the Fourth Committee
1. U.N. Gen. Ass. Off. Rec. 3rd Sess., rst Part, Fourth Comm.
(U.N. Doc. No. A/603) (1948).
2. U.N. Doc. No. A(C.4(r8s (r95o).
3· U.N. Gen. Ass. Off. Rec. 5th Sess., Fourth Comm. (U.N.
Doc. No. A/C.4/S.R.r96 (1950).
4· U.N. Gen. Ass. Off. Rec. 8th Sess., Fourth Comm. (U.N.
Doc. No. A/C.4(SR.357) .(1953).
s. U.N. Gen. Ass. Off. Rec. 9th Sess., Fourth Comm. (U.N.
Doc. A/C.4(SR.407) ('954).
6. U.N. Gen. Ass. Off. Rec. 14th Sess., Fourth Comm. (U.N.
Doc. No. A(C.4/SR.9oo) (1959).
7· U.N. Gen. Ass. Off. Rec. 14th Sess., Fourth Comm. (U.N.
Doc. No. A/C.4(SR.914) (1959).
8. U.N. Gen. Ass. Off. Rec. r4th Sess., Fourth Comm. (U.N.
Doc. A/C.4/SR.915) (1959).
9· U.N. Gen. Ass. Off. Rec. 14th Sess., Fourth Comm. (U.N.
Doc. A(C.4/SR.916) (1959).
C. Documents of the Committee on South West Africa
r. U.N. Gen. Ass. Off. Rec. gth Sess., Supp. No. 14, Annex 1
(c) (A/2666) (1954).
2. U.N. Gen. Ass. Off. Rec. roth Sess., Supp. No. 12, Annex 1
(c) (A/2913) (1955).
3· U.N. Gen. Ass. Off. Rec. rrth Sess., Supp. No. 12, Annex 1
(b) (A/3151) (1956). SOUTH WEST AFRICA
D. Related Documents
I. Documents of the United NtUions Conference on International
Organization, San Francisco, I945, U.N. Information Organ
ization, New York, 1945, Vol. 13.
2. Charter of the United Nations
II. Documents of the League of Nations
A. Minutes of the Permanent Mandates Commission
r. PMC (Min. 6th Sess.) (1925).
B. League of Nations OfficialJournal
r. League of Nations Off. J.,pp. 854, 868 (1922).
2. League of Nations Off. J., 2rst Ass. p. 58 (plenary) (1946).
C. Related Documents of the League of Nations
r. Article 22 of the Covenant of the League of Nations.
2. The Mandate for German South West Africa.
III. Miscellaneous
A. Books
r. Bentwich, N., The Mandates System, Longmans, Green and
Co., London, 1930.
2. Chowdhuri, R. N., International Mandates and Trusteeship
Systems, Martinus Nijhoff, The Hague, 1955·
3· Feinberg, N., La Juridiction de la Cour Permanente de Justice
Internationale dans le Système des Mandats, Librarie Arthur
Rousseau, Paris, 1930.
4· Goodrich, L. M. and Simons, A.P., The United Nations and
the Maintenance of International Peace and Security, Brook
ings Institution, Washington, I955·
5· Houpin, C. and Bosvieux, H., TraitéGénéraldes Sociétés,
Librairie dela Sociétédu Recueil Sirey, 1929.
6. Hudson M. 0., The Permanent Court of International justice:
1920·1942, ATreatise. The Macmillan Company, NewYork,
1943·
7· Margalith, A. M., The International Mandates, Johns Hop
kins Press, Baltimore, 1930.
8. Lauterpacht, H., The Development of International Law By
The International Court, Frederick A. Praeger, New York,
1958.
9· Oppenheim, L., International Law: A Treatise, Vol. r,
Fourth Edition, ed. by A. D. McNair, Longmans, Green and
Co., London, 1928.
ro. Oppenheim, L., International Law: A Treatise, Vol. I,
E1ghth Edition, ed. by H. Lauterpacht, Longmans, Green
and Co., London, 1955·
rr. Rosenne, S., The International Court of Justice, Sijthoff,
Leyden, 1957. OBSERVATIONS OF ETHIOPIA AND LIBERIA
12. Stoyanovsky, J.,The Mandate for Palestine-A Contribution
to the Theory and Practice of International Mandates, Long·
mans, Green and Co., London, 1928.
13. Van Maanen-Helmer, E., The Mandates System In Relation
to A/rica & the Pacifie Islands, P. S. King & Son, Ltd.,
London, 1929.
14. Vattel, The Law of Nations or the Princip/es of the Law of
Nature, ed. by J. Chitty, T. & J. W. Johnson and Co.,
Philadelphia, 1858.
15. Woolsey, T. D., Introduction to the Study of International
Law, Fifth Edition, Charles Scribner's Sons, New York, 1879.
16. Wright, Q., Mandates Under the Leagueof Nations, The Uni
versity of Chicago Press, Chicago, 1930.
B. Articles
r. Brierly, J. L., "Trusts and Mandates," The British Yearbook
of International Law, 1929.
2.Fitzmaurice, G., "The Law and Procedure of the Inter
national Court of Justice: International Organizations and
Tribunals," The British Yearbook of International Law, 1953.
3· Hales, J. C., "The Creation and AJ?plication of the Mandate
System," Transactions of the Grot•usSociety, Vol. 25, 1940.
4· McNair, A. D., "Mandates," Vol. 3, No. 2,Cambridge Law
Journal, 1928.
\ SOUTH WEST AFRICA
TABLE OF AUTHORITIES
1. List of Cases Cited
A. INTERNATIONAL CouRT oF ]usneE
I. Case concerning the Aerial Incident of July 27th, 1955 (Israel
v. Bulgaria) Preliminary Objections, Judgment of May 26,
19s9: I.C.J. Reports 19s9. p. 127.
2. Admissibility of hearings of petitioners by the Committee on
South West Africa, Advisory Opinion of June 1st, 19s6:
J.C.]. Reports 19s6, p. 23.
3· Etfect of awards of compensation made by the U.N. Admini
strative Tribunal, Advisory Opinion of July 13th, 19s4: J.C.J.
Reports 19S4.p. 47·
4· Reservations to the Convention onGenocide, Advisory Opinion:
I.C.J. Reports 19sr, p. 1s.
s. International status of South-West Africa, Advisory Opinion:
I.C.J. Reports 19so. p. 128.
6. International status of South-West Africa, Pleadings, Oral
Arguments, Documents.
7· Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, Advisory Opinion: I.C.J. Reports 19so, p. 6s.
8. Reparation for injuries sutfered in the service of the United
Nations, Advisory Opinion: I.C.J. Reports 1949, p. 174·
B. PERMANENT CouRT oF INTERNATIONAL JusTICE
r. Minority Schools in Albania, Advisory Opinion: P.C.I.J. Ser.
A/B. No. 64, '93S· '
2. Interpretation of the Convention of 1919 Concerning theEmploy
ment of Women During the Night, Advisory Opinion: P.C.I.J.
Ser. AfB, No. sa. 1932.
3· Treatment of Polish Nationals and Other Persans of Polish
Origin or Speech.in the Danzig Territory, Advisory Opinion,
P.C.I..J. Ser. A/B. No. 44. 1932.
4· Case Relating to theTerritorial Jurisdiction of thel nternational
Commission of the River Oder, P.C.I.]. Ser. A, No. 23, 1929.
S·Competenceof theInternational LabourOrganization toRegulate,
Incidentally, the Persona! Work of the Employer, Advisory
Opinion P.C.I.J. Ser. B, No. 13, 1926.
6. Case Concerning Certain German Interests in Polish Upper
Silesia (The Merits), P.C.I.J. Ser. A, No. 7, 1926.
7· Case Concerning Certain German Interests in Polish Upper
Silesia, P.C.I.J. Ser. A, No. 6, 1925.
8. Case of the Readaptation of the Mavrommatis Palestine Con
cessions (Jurisdiction), P.C.l.J. Ser. A, No. II, 1927. OBSERVATIONS OF ETHIOPIA AND LIBERIA
9· The Mavrommatis Palestine Concessions,P.C.I.J. Ser. A, No. 2,
1924.
ro. Acquisition of Polish Nationality, Advisory Opinion: P.C.I.J.
Ser. B, No. J,1923.
rr. German Settlers in Poland, Advisory Opinion: P.C.I.J. Ser. B,
No. 6, 1923.
12. The S. S. Wimbledon, P.C.I.J. Ser. A., No. r, 1923.
13. The Regulation of the Conditions of Persans Employed tn
Agriculture, P.C.I.]. Ser. B, No. 2, 1922.
C. MISCELLANEOUS
I. ]eru~alem-] Diftiat Governor and Another v. Suleiman
Murra and Others, 1926 A.C:.321.
II. List of Statutes Cited
A. UNITED STATES:
r. California: West's Annotated Corporation Code, Vol. 24,
§§ 5400-5402 (1955).
2. Louisiana: West's Louisiana Statutes Annotated, Title 12,
§§ 53-62 (1951).
3. Maryland: Annotated Code of Maryland, Vol. 2, Article 23,
§§ 76(b), 78(b) and 82(a) (1957).
4· Minnesota: MinnesotaStatutes Annotated, Vol. 20, Chap. 301,
§§ 30I.46-301.54·
5. NewJersey: NewferseyStatutt:sAnnotated, Tille 14,§§14:13-14,
14:13-15 (1939).
6. New York: Stock Corporation Law § ro5(8) (1951); General
Corporation Law § 29 (1943).
7· Ohio: Page's Ohio Revised Code, § I7or.88 (Supp. rg6o).
8. Uniform Business Corporation Law §§ 49-60 [9 Uniform
Laws Annotated 204-213 (1957)].
9· Washington: Revised Code of Washington, Tille 23, §§ 23.
or.520-23.o1.65o (1958).
B. ARGENTIN A:
Code of Commerce, Article 435.
C. EcuADOR:
Code of Commerce, Articles 357 and 361.
D. SPAIN:
Corporation Law of Spain of July I7, I95I, Articles 154 and I59·
E. VENEZUELA:
Code of Commerce, Articles 350 and 351.
Observations of the Governments of Ethiopia and Liberia