575

DISSENTING OPINION OF JUDGE VAN WYK

The jurisdiction of this Court is provided for in Articles 36 and
37 of its Statute. It is common cause that paragraphs 2-5 of Arti-
cle 36 do not apply in this case, and it is therefore only necessary
to refer to the first paragraph of Article 36, which reads as follows:

“1. The jurisdiction of the Court comprises all cases which the
parties refer to it and all matters specially provided for in the
Charter of the United Nations or in treaties and conventions in
force.”

This is not a case which has been referred to this Court by the
parties, nor is it a matter specially provided for in the Charter.
Article 37 provides inter alia that whenever a treaty or convention
in force provides for reference of a matter to the Permanent Court
of International Justice, the matter shall be referred to this Court.
The legal effect of these provisions is that this Court has no juris-
diction in the present matter unless there exists a treaty or con-
vention in force which specially provides for reference of this matter
to this Court or the Permanent Court of International Justice.

rrom the above it is clear—indeed, it is common cause—that
the jurisdiction of this Court depends upon consent (see Case
concerning the Factory at Chorzôw, P.C.1.J., Series A, No. 9, 26 July
1927, p. 32, and Rosenne’s International Court of Justice, 1957, pp.
260, 318-320), and in this case such consent must be embodied in
a treaty or convention in force. Consent to jurisdiction cannot be
presumed (see Aerial Incident of 27 July 1955, I.C.J. 1959, p. 142).
Sir H. Lauterpacht, in The Development of International Law by
the International Court, 1958, page 01, states the rule as follows:

“The Court ... has emphasized repeatedly the necessity for ex-
treme caution in assuming jurisdiction, which must be proved up
to the hilt. Numerous Judgments show the Court as ‘bearing in
mind the fact that its jurisdiction is limited, that it is invariably based
on the consent of the Respondent and only exists in so far as this
consent has been given’. Nothing should be done which creates the
impression that the Court, in an excess of zeal, has assumed juris-
diction where none has been conferred upon it.”

See also Manley O. Hudson in The Permanent Court of Internation-
al Justice, 1920-1942, page 660.

The Applicants claim that this Court has jurisdiction to determine
the issues raised in their Applications and Memorials by virtue of

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576 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

the provisions of Article 7 of the Mandate Declaration for South
West Africa read with Article 22 of the Covenant of the League of
Nations, and Article 37 of the Statute of this Court and Article 80 (1)
of the Charter of the United Nations. This means that the Applicants
contend that the aforesaid provisions constitute terms of treaties
or conventions in force which embody the consent of the Respondent
to the present matter being submitted to this Court by the Appli-
cants.

It is therefore necessary to determine the meaning and legal
effect of Article 7 of the Mandate Declaration as read with Article 22
of the Covenant of the League of Nations, as well as the meaning
and legal effect of the aforesaid provisions of the Statute of this
Court and the Charter of the United Nations. This must be done
in accordance with the principles of construction, as applicable in
international law in terms of Article 38 of the Statute of this Court,
which reads as follows:

“1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:

(a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting States;

{b) international custom, as evidence of a general practice ac-
cepted as law;

(c) the general principles of law recognized by civilized nations;

(d) subject to the provisions of Article 59, judicial decisions
and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules
of law.

2. This provision shall not prejudice the power of the Court to
decide a case ex aequo et bono, if the parties agree thereto.”

Article 59, referred to in Article 38 (d), provides that a decision
of this Court has no binding force except between the parties and
in respect of that particular case. It follows that “judicial decisions”
mentioned in Article 38 (d) include the decisions of this Court.
There are no parties to Opinions of this Court and in terms of
Article 59 such opinions have no binding force. It follows that
Opinions of this Court, even if they relate to the same legal issues
now being considered, cannot be more than a subsidiary means for
the determination of the rules of international law. The general
principles of law recognized by civilized nations must always
prevail where those principles are in conflict with any views stated
in previous decisions of this Court.

There can be no doubt that all contracts, including treaties and
conventions that operate in international law, owe their effect in
law to the common consent of the parties thereto:

261
577 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

Reservations to the Convention on Genocide, Advisory Opinion: I.C.].
Reports 1951, p. 15; at p. 21:

“It is well established that in its treaty relations a State cannot

be bound without its consent... It is also a generally recognized

principle that a multilateral convention is the result of an agreement
freely concluded upon its clauses.”

Page 26:

ce

.. no State can be bound by a reservation to which it has not
consented...”’.

Pages 31-32, per Judges Guerrero, Sir Arnold McNair, Read and
Hsu Mo:

“The consent of the parties is the basis of treaty obligations...
The fact that in so many of the multilateral conventions of the
past hundred years, whether negotiated by groups of States or
the League of Nations or the United Nations, the parties have
agreed to create new rules of law or to declare existing rules of
law, with the result that this activity is often described as ‘legis-
lative’ or ‘quasi-legislative’, must not obscure the fact that the
legal basis of these conventions, and the essential thing that brings
them into force, is the common consent of the parties.”

See also Ralston, J. H. The Law and Procedure of International
Tribunals, Revised Edition (Stanford: Stanford University Press,
1926), p. 6.

For this reason, there exists the universally accepted basic
principle applicable in the interpretation of all contracts, including
treaties, conventions, and other international agreements that one
should endeavour to arrive at the true common intention of the
parties relative to the agreement in question as it existed at the
time agreement was reached.

This rule appears to be self-evident and is common cause but,
as it is of such crucial importance in this matter it merits detailed
consideration.

The rule in the United Kingdom is stated in Chitty on Contracts,
22nd Edition (1961) at page 583, as follows: |

“The object of all construction of the terms of a written agreement
is to discover therefrom the intention of the parties to the agree-
ment.”

Article 1156 of the French Code Civil provides:

“On doit dans les conventions rechercher quelle a été la commune
intention des parties contractantes, plutôt que de s'arrêter au sens
littéral des termes.”

Similar rules apply in every legal system that I have been able
to refer to, e.g., Belgium, Code Civil Art. 1156; The Netherlands,
Burgerlijk Wetboek Art. 1379; Italy, Code Art. 1362; Germany,

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578 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

Bürgerliches Gesetzbuch Art. 133; Switzerland, Code of Obligations
Art. 18; Greece, Code Art. 173; Hungary, Code Art. 265; Spain,
Code Art. 1259; Poland, Code Art. 108; Egypt, Code Civil Mixte
Art. 199; and Code Civil Indigéne Art. 138; Brazil, Code Art. 85;
Chile, Code Art. 1560. There is abundant authority that the same
rule applies in international law:

“Colombian-Peruvian asylum case, Judgment of November zoth,
1950: I.C.J. Reports 1950, p. 266”; per Judge Read at p. 320:

“There is, however, a principle of international law which is
truly universal. It is given equal recognition in Lima and in London,
in Bogota and in Belgrade, in Rio and in Rome. It is the principle
that, in matters of treaty interpretation, the intention of the parties
must prevail.”

“Case concerning rights of nationals of the United States of America
in Morocco, Judgment of August 27th, 1952: I.C.]. Reports 1952,
p. 176”; at pp. 19I-I92:

“From either point of view, this contention is inconsistent with
the intentions of the parties to the treaties now in question. This
is shown both by the wording of the particular treaties, and by the
general treaty pattern which emerges from an examination of the
treaties made by Morocco with France, the Netherlands, Great
Britain, Denmark, Spain, United States, Sardinia, Austria, Belgium
and Germany over the period from 1631 to 1892. These treaties show
that the intention of the most-favoured-nations clauses was to...”

Ralston, J. H. The Law and Procedure of International Tribunals,
Revised Edition (Stanford: Stanford University Press, 1926),
p. 27:

“As is manifest from all of the foregoing, the intention of the
parties must rule, and the principles laid down are after all but

means of determining, as scientifically as the subject will permit,
what the parties’ intentions may have been.”

Schwarzenberger, G. International Law, Second Edition (London:
Stevens and Sons, 1949), Vol. I, p. 208:

“The purpose of the interpretation of an international treaty is
to ascertain its meaning, i.e. the intention of the contracting parties.
As the Permanent Court of Arbitration had already emphasized in
the Island of Timor case (1914), ‘here again, and always, we must
look for the real and harmonious intention of the parties when they

35,

bound themselves’.

Lauterpacht, H. “Restrictive Interpretation and the Principle of
Effectiveness in the Interpretation of Treaties’, The British Year
Book of International Law, Vol. XXVI (1949), pp. 48-85; at
p. 83:

263
579 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

“It is the intention of the author of the legal rule in question—
whether it be a contract, a treaty, or a statute—which is the starting
point and the goal of all interpretation. It is the duty of the Judge
to resort to all available means—including rules of construction—
to discover the intention of the parties; to avoid using rules of
interpretation as a ready substitute for active and independent
search for intentions; and to refrain from neglecting any possible
clues, however troublesome may be their examination and however
liable they may be to abuse, which may reveal or render clear the
intention of the authors of the rule to be interpreted.”

Lauterpacht, H. The Development of International Law by the Inter-.
national Court (London: Stevens and Sons, 1958), p. 227:
‘*.. the fundamental principle of interpretation, that is to say, ‘that

3»

effect is to be given to the intention of the parties’.

Fitzmaurice, G. G. “The Law and Procedure of the International
Court of Justice 1951-1954: Treaty Interpretation and Other
Treaty Points”, The British Year Book of International Law,
Vol. XXXIIT (1957), pp. 203-293, at p. 204:

“With the exception of those who support the extremé teleological
school of thought, no one seriously denies that the aim of treaty
interpretation is to give effect to the intentions of the parties.”

Through the ages lawyers have evolved auxiliary rules of con-
struction to assist in the determination of the common intention
of the parties to an agreement, and as these rules are based on logic,
common sense and long experience, it is not surprising that they
are substantially the same in almost all civilized States. It is also,
therefore, not surprising that international tribunals have adopted
them without any significant changes. The purpose of these rules
is to assist the Court in the evaluation of the admissible evidence
—including of course the instruments in question themselves—
relating to the intention of the parties. Inasmuch as evidence which
is logically relevant in an enquiry as to the intention of the parties
to an agreement is sometimes excluded by the operation of rules
of law, e.g. the rule of estoppel, a conclusion based on the admissible
evidence may sometimes lead to somewhat artificial results. Thus
a party who has signed an instrument which records his assent to
the agreement recorded therein is deemed to have agreed to its
terms, and cannot be heard to say that he negligently signed the
instrument without reading it or without studying it properly.
These considerations, however, can never afford a valid excuse for
not determining the intention of the parties, as far as is reasonably
possible.

264
580 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

One must also bear in mind that parties frequently deliberately
use wide terms so as to provide for all possible situations, foreseen
and unforeseen, and it follows that when a situation not foreseen
by the parties arises which falls within the meaning of the words
employed by them they are deemed to have had a common intention
in regard thereto.

The auxiliary rules of construction are prima facie pointers to
the probable intention of the parties. One must always bear in
mind that their sole function is to aid the Court in its task of
determining the true common intention of the parties. Lord McNair
aptly remarks, in The Law of Treaties 1961, page 366, as follows:

“The many maxims and phrases which have crystallized out and
abound in the text-books and elsewhere are merely prima facie
guides to the intention of the parties and must always give way to
contrary evidence of the intention of the parties in a particular
case. If they are allowed to become our masters instead of our
servants these guides can be very misleading.”

Rights originating from a contract may be divided, inter alia, into
personal rights and real rights but, whether personal or real, such
rights can never embrace anything not included in the common
intention of the parties. A treaty or convention may create an
international institution or it may define the status of a territory
but its meaning and effect depend primarily on the intention of
the parties thereto. The rule may therefore be stated to be that the
existence, the measure, and the meaning of treaty rights and
obligations are determined in accordance with the common intention
of the parties to the instrument in question and, in determining
this common intention, the Court invokes the aid of the accepted
tules of construction. In Certain Expenses of the United Nations
(Opinion of 20 July 1962, p. 157) the following appears:

“On the previous occasions when the Court has had to interpret
the Charter of the United Nations, it has followed the principles
and rules applicable in general to the interpretation of treaties,
since it has recognized that the Charter is a multilateral treaty.”

These rules will be applied in the interpretation of the Covenant
of the League of Nations, the Mandate Declaration for South West
Africa and the Charter of the United Nations; and it is convenient
to deal with the more important rules at this stage.

Inasmuch as the aim of the parties to a written instrument is to
set forth their agreement in written language which renders their
own intention clear to themselves and to others, it follows that the
most effective method of arriving at this common intention, when
called upon to construe a written agreement, is to find it in the
ordinary, normal, natural, and unrestrained meaning of the words

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581 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

in the instrument in the context in which they appear. See Halsbury’s
Laws of England, 3rd Edition, Volume 11, page 632; Cheshire and
Fifoot Law of Contracts, 5th Edition, page 1056.

The rule with regard to statutes is the same—see Maxwell on
Interpretation of Statutes, 11th Edition, page 3. Where the words of
‘an instrument in their context make sense, there should be no
reason for doubting that they express the common intention of the
parties and the need for interpretation does not really arise.

A similar rule has been applied by this Court, and by its prede-
cessor:

Acquisition of Polish Nationality, P.C.I.J., Series B, No. 7, 15
September 1923, p. 20:

“The Court’s task is clearly defined. Having before it a clause
which leaves little to be desired in the nature of clearness, it is
bound to apply this clause as it stands, without considering whether
other provisions might with advantage have been added to or
substituted for it.”

Competence of Assembly regarding admission to the United Nations,
Advisory Opinion: I.C.J. Reports 1950, p. 4; at p. 8:

“The Court considers it necessary to say that the first duty of a
tribunal which is called upon to interpret and apply the provisions
of a treaty, is to endeavour to give effect to them in their natural
and ordinary meaning in the context in which they occur. If the
relevant words in their natural and ordinary meaning make sense
in their context, that is an end of the matter. If, on the other hand,
the words in their natural and ordinary meaning are ambiguous or.
lead to an unreasonable result, then, and then only, must the Court,
by resort to other methods of interpretation, seek to ascertain what
the parties really did mean when they used these words. As the
Permanent Court said in the case concerning the Polish Postal
Service in Danzig (P.C.I.J., Series B, No. 11, p. 30):

‘It is a cardinal principle of interpretation that words must be
interpreted in the sense which they would normally have in their
context, unless such interpretation would lead to something
unreasonable or absurd.’

When the Court can give effect to a provision of a treaty by
giving to the words used in it their natural and ordinary meaning,
it may not interpret the words by seeking to give them some other
meaning.” .

See also Interpretation of Peace Treaties (second phase), Advisory
Opinion: I.C.]. Reports 1950, p. 221; at p. 227,

Colombian-Peruvian asylum case, Judgment of November 20th, 1950:
I.C.J. Reports 1950, p. 226, at p. 279,

266
582 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

Case concerning rights of nationals of the United States of America
in Morocco, Judgment of August 27th, 1952: I.C.J. Reports 1952,
p. 176, at p. 189,

Anglo-Ivamian Où Co. case (jurisdiction), Judgment of July 22nd,

1952, Pp. 93; at p. 104.

Where it appears from the context that words were not intended
to be used in their ordinary sense, such words should be construed
in harmony with the context. See Halsbury’s Laws of England, 3rd
Edition, Vol. rz, pages 388-389. The intention of the parties should,
therefore, be gathered from the instrument as a whole rather than
from any particular words they may have used.

From the above it follows that where words or terms of an instru-
ment are capable of two meanings the object with which they were
inserted, as revealed by the instrument or any other admissible
evidence, may be taken into consideration in order to arrive at
the sense in which they were used and where one interpretation is
consistent with what appears to have been the intention of the
parties and another repugnant to it, the Court will give effect to
this apparent intention. The Court will always prefer an inter-
pretation which renders an agreement valid and effective to an
interpretation which renders it void and ineffective, provided the
former can fairly be said not to be inconsistent with the intention
of the parties. This principle is stated in the rule Ut res magis
valeat quam pereat, vide Halsbury’s Laws of England, 3rd Edition,
Vol. 11, page 391; Crates on Contracts, General Principles, 21st
Edition, page 152; Burgerlijk Wetboek, Article 1380; Italian Code,
Article 1357; French Code Civil, Article 1157. The rule in the United
States is stated as follows in Williston on Contracts, Revised
Edition, Rev. 8, Vol. 3, Section 620:

“Secondary Rules: The writing will be interpreted if possible so
that tt shall be effective and reasonable. An interpretation which
makes the contract or agreement lawful will be preferred over one
which would make it unlawful; an interpretation which renders
the contract or agreement valid and its performance possible will
be preferred to one which makes it void or its performance im-
possible or meaningless; an interpretation which makes the contract
or agreement fair and reasonable will be preferred to one which
leads to harsh or unreasonable results... But the mere fact that
parties have made an improvident bargain will not lead a court
to make unnatural implications or artificial interpretations. A court
will not under the guise of interpretation write a new contract for
the parties.”

This principle was recognized by the Permanent Court of Inter-
national Justice in the case of Chorzdw, Series A, No. 9, page 24:

267
583 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

“Account must be taken not only of the historical development
of arbitration treaties, as well as of the terminology of such treaties,
and of the grammatical and logical meaning of the words used, but

‘also and more especially of the function which, in the intention
of the contracting Parties, is to be attributed to this provision. The
Geneva Convention provides numerous means of redress to secure
the observation of its clauses and it does so in ways varying ac-
cording to the subjects dealt with under the different Heads, Parts
or other subdivisions of the Convention. Article 23 contains pro-
visions of this kind in so far as concerns Articles 6 to 22 which form
the greater portion of Head III of the First Part.”

See also Corfu Channel case, Judgment of April 9, 1949, I.C.].
Reports 1949, page 4, at page 24, and Reparation for Injuries suf-
fered in the Service of the United Nations, Advisory Opinion, I.C.].
Reports, 1949, page 174, at 179 and 183. In Interpretation of Peace
Treaties (second phase), Advisory Opinion: I.C.J. Reports 1950,
p- 221, the following appears:

Page 229:

“The breach of a treaty obligation cannot be remedied by creating
a Commission which is not the kind of Commission contemplated
by the Treaties. It is the duty of the Court to interpret the Treaties,
not to revise them.

The principle of interpretation expressed in the maxim: Ut res
magis valeat quam pereat, often referred to as the rule of effectiveness,
cannot justify the Court in attributing to the provisions for the
settlement of disputes in the Peace Treaties a meaning which, as
stated above, would be contrary to their letter and spirit...

The ineffectiveness in the present case of the clauses dealing with
the settlement of disputes does not permit such a generalization.”

Pages 229-230:

“.., Normally each party has a direct interest in the appointment
of its commissioner and must in any case be presumed to observe its
treaty obligation. That this was not so in the present case does
not justify the Court in exceeding its judicial function on the
pretext of remedying a default for the occurrence of which the
treaties have made no provision.”

In the Anglo-Ivanian O1l Co. case it was stated:

“It is my duty to interpret the Declaration and not to revise it.
In other words, I cannot, in seeking to find the meaning of these
words, disregard the words that as actually used, give to them a
meaning different from their ordinary and natural meaning, or add
words or ideas which were not used in the making of the Declaration.”

Lord McNair in The Law of Treaties (1961), page 383, deals with
the rule as follows:

“The rule of effectiveness must mean something more than the
duty of a tribunal to give effect to a treaty; that is the obvious and

268
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constant duty of a tribunal, that is what it is there to do. The rule
must surely mean, in the mind of the party involving it: ‘If you
(the tribunal) do not construe the treaty in the way that I submit
to you to be correct, this treaty will fail in its object’. But that is a
petitio principi, because as has been submitted in the previous
chapter, it is the duty of a tribunal to ascertain and give effect to
the intention of the parties as expressed in the words used by them in
the light of the surrounding circumstances. Many treaties fail—and
rightly fail—in their object by reason of the words used, and
tribunals are properly reluctant to step in and modify or supplement
the language of the treaty.”

From the above it is clear that the rule of effectiveness only
applies where a provision is obscure. It does not permit: the depar-
ture from the terms of an instrument and, save where a term is
implied in accordance with principles to be stated infra, it does
not permit one to read into a treaty stipulations for which no
express provision was made in the text itself.

As the object of interpretation is to arrive at the intention which
existed when the agreement was recorded, it follows that words
or phrases must be given that meaning which they bore at the time
when the instrument in question was executed. In the Minguzers
and Ecréhous case, Judgment of November r7th, 1953: I.C.]. Reports
1953, page 91, Judge Carneiro remarked:

“T do not regard the Treaty of Paris as a treaty of frontiers. To
do so would be to fall into the very error which we have been
warned against: an instrument must not be appraised i in the light
of concepts which are not contemporaneous with it.’

The next question to be considered is to what extent extrinsic
evidence is admissible to assist in the determination of the inten-
tion of the parties relative to an agreement which has been recorded
in writing. Evidence of surrounding circumstances to identify
the parties or the subject-matter of a contract is clearly admissible
(vide Phipson, pages 637-638).

As regards other extrinsic evidence, however, the general rule
is that an instrument must be interpreted as it stands. The result
is that this Court will not have regard either to preparatory work
which has preceded a written instrument nor to the subsequent
conduct of the parties if a text in itself is clear. Where there is
obscurity, the Court will have regard to extrinsic evidence which
may assist it in determining the intention of the parties and, in
such a case, it will have regard to the preparatory work as well
as to the subsequent conduct of the parties. In the Admission of a
State to the United Nations (Charter, Art. 4), Advisory Opinion:
I.C.]. Reports 1948, this Court remarked:

“The Court considers that the text is sufficiently clear; conse-
quently, it does not feel that it should deviate from the consistent
practice of the Permanent Court of International Justice, according

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585 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

to which there is no occasion to resort to preparatory work if the
text of a convention is sufficiently clear in itself.”

See also Competence of Assembly regarding admission to the
United Nations, Advisory Opinion: I.C.J. Reports 1950, p. 4;
at page 8, and Ambatielos case (first phase), I.C.]. Reports 1952,
p. 28, at p. 45.

It would appear that it is not the practice of this Court to order
the excision from the record of any evidence of preparatory work
which it may consider to be inadmissible. Such evidence is either
not referred to, or merely relied upon to confirm a conclusion arrived
at without it. See in this regard Hudson, The Permanent Court of
International Justice 1920-1942, page 660, and Hogg, Minnesota
Law Review, Vol. 44, No. 1, November 1949, pages 28-35.

It seems that where the travaux préparatoires are before the Court
there should be no objection to its holding that the words of a
particular provision are clear and unambiguous, and, in the alter-
native, that even if the words should not be held to be clear and
unambiguous, the travaux préparatoires confirm the Court’s con-
struction.

Evidence of interpretation placed upon written instruments by
the parties subsequent to their execution is only admissible in case
of obscurity. In his Law of Treaties, page 21, Lord McNair remarks:

“Here we are on solid ground and are dealing with a judicial
practice worthy to be called a rule, namely that, when there is a
‘doubt as to the meaning of a provision, or an expression contained
in a treaty, the relevant conduct of the contracting parties after
the conclusion of the treaty (sometines called ‘practical construc-
tion’) has a high probative value as to the intention of the parties
at the time of its conclusion. This is both good sense and good law.”

In terms of the general rules stated in Competence of Assembly
regarding admission to the United Nations, Advisory Opinion:
I.C.J. Reports 1950, page 8, quoted above, such evidence cannot
be admitted to contradict clear and unambiguous provisions.
The rule was stated as follows in the Case concerning the payment
in gold of Brazilian Federal Loans contracted in France: P.C.I.].
Ser. A, Nos. 20-21, Judgment No. 15, page 119:

“It is sought to apply the familiar principle that where a contract
is ambiguous, resort may be had to the manner of performance in
order to ascertain the intention of the parties.”

In Certain Expenses of the United Nations, page 189, Sir Percy
Spender remarked:

“In any case subsequent conduct may only provide a criterion
of interpretation when the text is obscure, and even then it is

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S. W. AFRICA CASES (Diss. OPIN. OF JUDGE VAN WYK)

necessary to consider whether that conduct itself permits of only
one inference (Brazilian Loans Case, P.C.I.J., Series A/B, Nos. 20/21,
p. 119). Except in the case where a party is by its conduct precluded
from relying upon a particular interpretation, with which type of
case we are not presently concerned, it can hardly control the
language or provide a criterion of interpretation of a text which is
not obscure.”

See also the Case concerning the payment of various Serbian Loans
issued in France, P.C.I.]. Reports, Ser. A, Nos. 20-22, p. 58; the
Corfu Channel case, Judgment of April oth, 1949: I.C.J. Reports
1949, p. 25, and the Asylum case: I.C.J. Reports 1953, pp. 323-324.

The above major principles of interpretation, as applied by this
Court up to 1951, were summarized by Sir G. G. Fitzmaurice in the
British Year Book of International Law 1951, XXVIII, p. 9; and
in the British Year Book of International Law 1957, XXXIII,
p. 33, he reformulated these principles in the light of the Court’s
work during the period 1951-1954 as follows:

271.

“I.

II.

III.

IV.

Principle of Actuality (or Textuality)

Treaties are to be interpreted primarily as they stand, and on
the basis of their actual texts.

Principle of the Natural and Ordinary Meaning

Subject to Principle VI below, where applicable, particular
words and phrases are to be given their normal, natural, and
unstrained meaning in the context in which they occur. This
meaning can only be displaced by direct evidence that the
terms used are to be understood in another sense than’ the
natural and ordinary one, or if such an interpretation would
lead to an unreasonable or absurd result. Only if the language
employed is fundamentally obscure or ambiguous may recourse
be had to extraneous means of interpretation, such as consider-
ation of the surrounding circumstances, or travaux préparatoires.

Principle of Integration

Treaties are to be interpreted as a whole, and particular parts,
chapters or sections also as a whole.

Subject to the foregoing Principles:
Principle of Effectiveness (ut res magis valeat quam pereat)

Treaties are to be interpreted with reference to their declared
or apparent objects and purposes; and particular provisions are
to be interpreted so as to give them their fullest weight and
effect consistent with the normal sense of the words and with
other parts of the text, and in such a way that a reason and a
meaning can be attributed to every part of the text.
587 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

V. Principle of Subsequent Practice
In interpreting a text, recourse to the subsequent conduct and
practice of the parties in relation to the treaty is permissible,
and may be desirable, as affording the best and most reliable
evidence, derived from how the treaty has been interpreted in
practice, as to what its correct interpretation is.

Footnote to this Principle. Where the practice has brought about
a change or development in the meaning of the treaty through
a revision of its terms by conduct, it is permissible to give
effect to this change or development as an agreed revision but
not as an interpretation of its original terms.”

To the above principles may now be added, on the basis of cer-
tain pronouncements made in the 1951-1954 period, a sixth major
principle, as follows:

“VI. Principle of Contemporaneity
The terms of a treaty must be interpreted accordingly to the
meaning which they possessed, or which would have been
attributed to them, and in the light of current linguistic usage,
at the time when the treaty was originally concluded.”

An agreement may be held subject to an implied or unexpressed
term where there arises from the agreement itself and the circum-
stances under which it was entered into, an inference that the
parties must have intended something which they omitted to
record. In this regard the object the parties sought to achieve may
be of importance. One must however bear in mind that the object
which the parties intended to achieve must itself be determined
by interpretation. It must also be emphasized that the major
principle of interpretation is that the intention of the parties must
be found in the meaning of the words actually used and courts
in all legal systems guard themselves against assenting to a proposed
implication on any but the most cogent grounds. For this purpose,
safeguards have been laid down to avoid assumptions of a higher
degree of effectiveness than is inherent in the intention conveyed
by the express terms employed by the parties, read in the light

. of the surrounding circumstances. Pollak on Contracts, 12th Edition,
page 195, remarks as follows:

“Interpretation has to deal not with conjectured but with
manifest intent and a supposed intent which the parties have not
included in their chosen and manifest form of expression cannot,
save for exceptional causes, be regarded.”

In Cheshire and Fifoot Law of Contract, 3rd Edition, page 129,
the following appears in regard to implied terms:

“The convenience of the doctrine is manifest, and it has often
received the doubtful compliment of citation by counsel as a last
desperate expedient in a difficult case. The Courts, however, have

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recognized the danger of undue elasticity, and have circumscribed
its limits. Based upon the presumed intention of the parties, it may
not contradict or vary the express terms of the agreement. Nor can
it be used simply to render the contract rather more attractive in
the eyes of reasonable men. It is for the parties, not for the judges,
to determine the nature of their liabilities. The doctrine can be
invoked only if an obligation, clearly intended as such, must fail
to take effect unless some obvious oversight is remedied; and, even
so, the judges will supply the minimum necessary to save the
contract from shipwreck. The test to be applied by the Court in
deciding whether to make the implication has been stated by several
judges in much the same language.

‘A term can only be implied’, said Scrutton, L. J., ‘if it is
necessary in the business sense to give efficacy to the contract,
i.e., if it is such a term that it can confidently be said that if at
the time the contract was being negotiated some one had said to
the parties: “What will happen in such a case?’ they would both
have replied : ‘Of course so and so will happen; we did not trouble
to say that; it is too clear.’ ”

In K. C. Sethi v. Partab Mull Rameshewar of England, “aw
Reports 1950, Vol. 1, page 51, at page 59, Jenkins, L. J. remarked:

“One thing I think is clear about implied terms. I do not think

that the Court will read a term into a contract unless, considering

‘ the matter from the point of view of business efficacy, it is clear

beyond a peradventure that both parties intended a given term to
operate although they did not include it in so many words.”

See also Crates on Statute Law, 5th Edition, page 103.
Lord McNair states the rule as follows in his Law of Treaites,
page 436:

“Conditions should be implied only with great circumspection;
for if they are implied too readily, they would become a serious
threat to the sanctity of a treaty. Nevertheless the main object of
interpretation of a treaty being to give effect to the intention of the
parties in using the language employed by them, it is reasonable to
expect that circumstances should arise (as they do in the sphere of
private law contracts) in which it is necessary to imply a condition
in order to give effect to this intention.”

In Case concerning rights of nationals of the United States of America
in Morocco, Judgment of August 27th, 1952: I.C.]. Reports 1952,
p. 176; at p. 196 this Court remarked:

“The purposes and objects of this Convention were stated in its
Preamble in the following words: ‘the necessity of establishing, on

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fixed and uniform bases, the exercise of the right of protection in
Morocco and of settling certain questions connected therewith...’.
In these circumstances, the Court cannot adopt a construction by
implication of the provisions of the Madrid Convention which
would go beyond the scope of its declared purposes and objects.
Further, this contention would involve radical changes and additions
to the provisions of the Convention. The Court, in its Opinion—
Interpretation of Peace Treaties (Second Phase} (7.C.J. Reports 1950,
p. 229)—stated: ‘It is the duty of the Court to interpret the Treaties,

292

not to revise them’.

Page 198:

“An interpretation, by implication from the provisions of the
Act, establishing or confirming consular jurisdiction would involve
a transformation of the then existing treaty rights of most of the
twelve Powers into new and autonomous rights based upon the
Act. It would change treaty rights of the Powers, some of them
terminable at short notice, e.g. those of the United States which
were terminable by twelve months’ notice, into rights enjoyable
for an unlimited period by the Powers and incapable of being ter-
minated or modified by Morocco. Neither the preparatory work nor
the Preamble gives the least indication of any such intention. The
Court finds itself unable to imply so fundamental a change in the
character of the then existing treaty rights as would be involved
in the acceptance of this contention.”

Page 199:

“This interpretation of the Act, in some instances, leads to
results which may not appear to be entirely satisfactory. But that
is an unavoidable consequence of the manner in which the Algeciras
Conference dealt with the question of consular jurisdiction. The
Court can not, by way of interpretation, derive from the Act a
general rule as to full consular jurisdiction which it does not contain.
On the other hand, the Court can not disregard particular provisions
involving a limited resort to consular jurisdiction, which are, in
fact, contained in the Act, and which are still in force as far as the
relations between the United States and Morocco are concerned.”

See also Certain Expenses of the United Nations (Article 17, paragraph
2, of the Charter), Advisory Opinion of 20 July 1962, Tirage Spécial,
p.13, and ‘The Law and Procedure of the International Court
of Justice: Treaty Interpretation and certain other Treaty
Points”, The British Year Book of International Law, Vol.
XXVIII (1951), pp. 1-28; at p. 9.

The object and purpose of the parties to an instrument may be of
considerable importance where one has to choose between alter-
native possible meanings of an ambiguous text, or where the
issue is whether an inference of tacit agreement does or does not
arise necessarily in a particular respect. As already pointed out,

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however, the basic object of interpretation is to arrive at the
common intention of the parties and it must always be borne in
mind that the principle of effectiveness only applies as an aid
towards ascertainment of common intention. It cannot supplement
absence of agreement or override the clear natural meaning of a
text or other cogent indications of common intent. At page 383
of the Law of Treaties 1961, Lord McNair remarks:

“The rule of effectiveness must mean something more than the
duty of a tribunal to give effect to a treaty; that'is the obvious and
constant duty of a tribunal, that is what it is there to do. The rule
must surely mean, in the mind of the party involving it: ‘If you
(the tribunal) do not construe the treaty in the way that I submit
to you to be correct, this treaty will fail in its object’. But that is a
petitio principi, because, as has been submitted in the previous
chapter, it is the duty of a tribunal to ascertain and give effect to
the intention of the parties as expressed in the words used by them in
the light of the surrounding circumstances.

Many treaties fail—and rightly fail—in their object by reason
of the words used, and tribunals are properly reluctant to step in
and modify or supplement the language of the treaty.”

It is clear from what has been stated above that this Court
cannot adopt a construction by implication which is not necessary
(Reparation for injuries suffered in the service of the United Nations,
Advisory Opinion: I.C.]. Reports 1949, p. 174; at pp. 182, 184, 198),
or which would go beyond the scope of the declared purpose and
object of the contract or would involve radical changes or additions
(Case concerning rights of nationals of the United States of America
in Morocco, Judgment of August 27th, 1952: I.C.J. Reports 1952,
at page 196, 199), or which would do violence to the clear and un-
ambiguous express provisions of the instrument (Competence of
Assembly regarding admission to the United Nations, Advisory
Opinion: I.C.J. Reports 1950, p. 4; at p. 8).

It must be clear that had the suggested term been raised at the
time the parties would have agreed thereto. Hogg, op. cit., pp. 59-60,
remarks:

“A vague showing of general intent will not be sufficient to cover
a case where the parties fail to provide for a particular contingency

against which they could have made provision had they adverted
to the problem.”

It is clear that this Court has no power to insert a term in a
treaty which it considers a party should have inserted.

If it is clear beyond peradventure that the parties to an instru-
ment must have intended an unexpressed term to operate, one
should have no difficulty in drafting such a term with clarity and
precision. If, however, after a careful study of the instrument, the
surrounding circumstances and other admissible evidence, dif-
ficulty and doubt is experienced in the phrasing of a suggested

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implied term, it is clearly not reasonable to impute to the parties
the intention to contract on the basis of such a term; wide
Rapp Maiester v. Raonovsky 1943, WLD 68, at pages 74-75. Where,
in addition, the admissible facts reveal that one of the parties would
probably not have agreed to such a term had it been raised, there
is obviously no justification for such an inference. Similarly,
where the subsequent conduct of the parties reveals that no such.
tacit intention existed, there is no room for any inference that the
parties intended to agree on the basis of such a term.

The rules of construction authorize what has been termed the
“teleological approach” only to the limited extent indicated above.
This approach, in its more extreme form, assumes that this Court
has the power to disregard or amend the terms of an instrument
in order to achieve an object, or presumed object, albeit in a man-
ner different from that provided for and intended by the parties;
but this approach disregards the basic rule that the purpose of
construction is to determine the common intention of the parties
and, in any event, it has not been recognized by this Court or its
predecessor. No court has the power to make a party’s obligations
different from, or more onerous than, what it has agreed to. If
this Court has the power to disregard or to amend the provisions
of a treaty or convention, it has legislative powers and such powers
have not been entrusted to it by its Statute or any of the sources
of international law referred to in Article 38 of its Statute. As
Sir Gerald Fitzmaurice rightly remarks in the article in the British
Year Book of International Law 1957, XXXIII, quoted above at
page 208:

“The Court has shown plainly that, in its view, the performance
of such a function cannot properly form part of the interpretative
process.”

In the Peace Treaties case, I.C.J. Reports 1950, page 221, at
page 229, this Court remarked:
“Tt is the duty of the Court to interpret the treaties, not to revise
them.”

Rosenne, The International Court of Justice, p. 63, remarks,
inter alia, in regard to this Court:

“Thus, being a Court of law it has the duty in relation to inter-
national treaties to interpret them and not to revise them, and it
would exceed its judicial functions were it to revise them on the
pretext of remedying a default, for the occurrence of which the
treaty in question has made no provision, or where its conclusions
involve radical changes and additions to the provisions of the
convention. The Court will so act even if the consequences may not
appear to be entirely satisfactory.”

Before dealing with the provisions of the Covenant and the
Mandate Declaration, I shall briefly set out the relevant history
preceding the Covenant and the Mandate Declaration.

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German South West Africa was surrendered to the Respondent’s
Military Forces in July 1915 and Respondent remained in military
occupation for the remainder of the War and thereafter, pending the
Peace Settlement. Similarly, the former German colony in New
Guinea was occupied by Australia, Samoa by New Zealand, the
German islands in the Pacific Ocean, north of the Equator, by
Japan and the various German territories elsewhere in Africa by
Great Britain, Belgium and France.

Agreements were concluded during the War between some of the
Principal Allies and in terms thereof their respective claims to the
various occupied German territories were to be recognized in the
event of an Allied victory. In. March 1917 the British Imperial
War Cabinet decided that the Respondent should be allowed
to annex German South West Africa, that Australia and New
Zealand should be allowed to annex German New Guinea and Ger-
man Samoa respectively. President Wilson of the United States
was strongly opposed to annexation of former enemy territories,
and at the Peace Conference he insisted at the outset that the Coven-
ant of the League of Nations should provide for complete authority
and control of these former German territories by the League,
who could at its discretion delegate its powers, organize its agency
to act “as its agent or Mandatory”.

General Smuts in a booklet, The League of Nations, a Practical
Suggestion, published in 1918, proposed a mandate system for
territories formerly belonging to Russia, Austria, Hungary and
Turkey, but he felt that such a system could not be applied to the
“German: cclonies in the Pacific and Africa”.

The future of the German colonies was discussed during Janu-
ary 1919 in the so-called Council of Ten, which consisted of the
Heads of Government and Foreign Ministers of the United States
of America, the United Kingdom, France, Italy and Japan. Re-
presentatives of New Zealand, Australia and South Africa attended
and pressed their cases for incorporation of the respective territories
allocated to them in terms of the aforesaid decision of the British
Imperial War Cabinet. They were supported by the British Prime
Minister and the representative of France, who also advocated
annexation of the occupied territories. A deadlock resulted, but
eventually a compromise was effected, from which Article 22 of
the Covenant of the League of Nations ultimately emerged. The
fact that this Article is the product of compromise explains its
somewhat non-legal terminology. That it was the result of com-
promise clearly appears from the following extract from Foreign
Relations of the United States, Paris Peace Conference 1919, Volume 3,

page 785:

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593 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

“Mr. Lioyd George said that he had circulated a document ... to
each of the representatives of the Great Powers. That document
did not represent the real views of the colonies but it had been
accepted by them in an attempt at a compromise.”

The provisions of this document became, with certain amend-
ments, Article 22 of the Covenant. The only important addition
is paragraph 9 of Article 22, which provides for a Permanent
Mandates Commission.

Article 22 reads as follows:

“(x) To those colonies and territories which as a consequence of
the late war have ceased to be under the sovereignty of the States
which formerly governed them and which are inhabited by peoples
not yet able to stand by themselves under the strenuous conditions
of the modern world, there should be applied the principle that the
well-being and development of such peoples form a sacred trust of
civilization and that securities for the performance of this trust
should be embodied in this Covenant.

(2) The best method of giving practical effect to this principle is
that the tutelage of such peoples should be entrusted to advanced
nations who by reason of their resources, their experience or their
geographical position can best undertake this responsibility, and
who are willing to accept it, and that this tutelage should be exercised
by them as Mandatories on behalf of the League.

(3) The character of the mandate must differ according to the
stage of the development of the people, the geographical situation:
of the territory, its economic conditions and other similar circum-

. stances.

(4) Certain communities formerly belonging to the Turkish
Empire have reached a stage of development where their existence
as independent nations can be provisionally recognised subject to the
rendering of administrative advice and assistance by a Mandatory
until such time as they are able to stand alone. The wishes of these
communities must be a principal consideration in the selection of the
Mandatory.

(5) Other peoples, especially those of Central Africa, are at such
a Stage that the Mandatory must be responsible for the administra-
tion of the territory under conditions which will guarantee freedom
of conscience and religion, subject only to the maintenance of public
order and morals, the prohibition of abuses such as the slave trade,
the arms traffic and the liquor traffic, and the prevention of the
establishment of fortifications or military and naval bases and of
military training of the natives for other than police purposes and
the defence of territory, and will also secure equal opportunities for
the trade and commerce of other Members of the League.

(6) There are territories, such as South-West Africa and certain of
the South Pacific Islands, which, owing to the sparseness of their
population, or their small size, or their remoteness from the centres
of civilisation, or their geographical contiguity to the territory of the
Mandatory, and other circumstances, can be best administered under

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594 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

the laws of the Mandatory as integral portions of its territory, subject
to the safeguards abovementioned in the interests of the indigenous
population.

(7) In every case of mandate, the Mandatory shall render to the
Council an annual report in reference to the territory committed to
its charge.

(8) The degree of authority, control, or administration to be
exercised by the Mandatory shall, if not previously agreed upon by
the Members of the League, be explicitly defined in each case by the
Council. |

(9) À permanent Commission shall be constituted to receive and
examine the annual reports of the Mandatories and to advise the
Council on all matters relating to the observance of the mandates.”

In terms of Article 119 of the Treaty of Versailles, Germany
renounced in favour of the Principal Allied and Associated Powers
all her rights and titles over her overseas possessions. These pos-
sessions included, inter alia, German South West Africa, German
colony New Guinea and German Samoa.

After Article 22 of the Covenant of the League of Nations had
been agreed upon at the Peace Conference, at least two separate
events, in addition to the ratification of the Treaty, had to take
place before the Mandate institution for South West Africa could
come into operation, namely: (1) the Principal Allied and Associated
Powers had to entrust, in terms of paragraph 2 of Article 22, the-
tutelage of the peoples of South West Africa to a qualified State;
and (2) either the Members of the League had to agree upon the
degree of authority, control or administration to be exercised by
the Mandatory, or such degree of authority, control or administra-
tion had to be explicitly defined by the Council in terms of Article
22 (8) of the Covenant of the League. The Covenant of the League
was ratified and came into force on Io January 1920. The Principal
Allied and Associated Powers had already decided before this date
that Respondent would hold the Mandate for South West Africa.
Respondent was at all material times willing to accept such Man-
date, held the other necessary qualifications stated in paragraphs
2 and 6 of Article 22, and was therefore a qualified State. Members
of the League did not act under the provisions of Article 22, and
the Council accordingly defined the degree of authority, control
or administration to be exercised by the Respondent, on 17 Decem-
ber 1920 in the declaration that is commonly called the Mandate,
and it reads as follows:

“MANDATE FOR GERMAN SOUTH WEST AFRICA
The Council of the League of Nations:

Whereas by Article 119 of the Treaty of Peace with Germany
signed at Versailles on June 28th, 1919, Germany renounced in

279
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280

S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

favour of the Principal Allied and Associated Powers all her rights
over her overseas possessions, including therein German South-West
Africa; and

Whereas the Principal Allied and Associated Powers agreed that,
in accordance with Article 22, Part I (Covenant of the League of
Nations) of the said Treaty, a Mandate should be conferred upon
His Britannic Majesty to be exercised on his behalf by the Govern-
ment of the Union of South Africa to administer the territory afore-
mentioned, and have proposed that the Mandate should be formu-
lated in the following terms; and

Whereas His Britannic Majesty, for and on behalf of the Govern-
ment of the Union of South Africa, has agreed to accept the Mandate
in respect of the said territory and has undertaken to exercise it on
behalf of the League of Nations in accordance with the following
provisions; and

Whereas, by the aforementioned Article 22, paragraph 8, it is
provided that the degree of authority, control or administration to
be exercised by the Mandatory not having been previously agreed
upon by the Members of the League, shall be explicitly defined by
the Council of the League of Nations;

Confirming the said Mandate, defines its terms as follows:

Article I

The territory over which a Mandate is conferred upon His Britan-
nic Majesty for and on behalf of the Government of the Union of
South Africa (hereinafter called the Mandatory) comprises the
territory which formerly constituted the German Protectorate of
South-West Africa.

Article 2

The Mandatory shall have full power of administration and legis-
lation over the territory subject to the present Mandate as an integral
portion of the Union of South Africa, and may apply the laws of the
Union of South Africa, and may apply the laws of the Union of South
to the territory, subject to such local modifications as circumstances
may require.

The Mandatory shall promote to the utmost the material and
moral well-being and the social progress of the inhabitants of the
territory subject to the present Mandate.

Article 3

The Mandatory shall see that the slave trade is prohibited, and
that no forced labour is permitted, except for essential public works
and services, and then only for adequate remuneration.

The Mandatory shall also see that the traffic in arms and ammu-
nition is controlled in accordance with principles analogous to those
laid down in the Convention relating to the control of the arms
traffic, signed on September roth, 1910, or in any convention amend-
ing the same.
596 S. W. AFRICA CASES (DISS, OPIN. OF TUDGE VAN WYK)

The supply of intoxicating spirits and beverages to the natives
shall be prohibited.

Article 4

The military training of the natives, otherwise than for purposes
of internal police and the local defence of the territory, shall be pro-
hibited. Furthermore, no military or naval bases shall be.established
or fortifications erected in the territory.

Article 5

Subject to the provisions of any local law for the maintenance of
public order and public morals, the Mandatory shall ensure in the
territory freedom of conscience and the free exercise of all forms of
worship, and shall allow all missionaries, nationals of any State
Member of the League of Nations, to enter into, travel and reside
in the territory for the purpose of prosecuting their calling.

Article 6

The Mandatory shall make to the Council of the League of
Nations an annual report to the satisfaction of the Council, containing
full information with regard to the territory, and indicating the mea-
sures taken to carry out the obligations assumed under Articles 2, 3,
4and 5.

Article 7

The consent of the Council of the League of Nations is required
for any modification of the terms of the present Mandate.

The Mandatory agrees that, if any dispute whatever should arise
between the Mandatory and another Member of the League of Na-
tions relating to the interpretation or the application of the provisions
of the Mandate, such dispute, if it cannot be settled by negotiation,
shall be submitted to the Permanent Court of International Justice
provided for by Article 14 of the Covenant of the League of Nations.

The present Declaration shall be deposited in the archives of the
League of Nations. Certified true copies shall be forwarded by the
Secretary-General of the League of Nations to all Powers Signatories
of the Treaty of Peace with Germany.”

During 1919 a Commission of the Supreme Council of the Principal
Allied and Associated Powers prepared a draft agreement between
the Respondent and the Principal Allied and Associated Powers
in terms whereof the Mandate to administer South West Africa
was to be conferred upon Respondent. Differences arose between
the Principal Allied and Associated Powers in regard to the inter-
pretation of those provisions of Article 22 which dealt with equal
opportunities of the trade and commerce of Members of the League,
and the matter was not proceeded with. The terms set out in this
draft were the same as those set out in paragraphs 2-6 of the Decla-
ration of the Council of the League of 17 December 1920, but the
provisions relating to compulsory jurisdiction read as follows:

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507 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

“The consent of the Council of the League of Nations is required
for the modification of any of the terms of this Mandate. If any
dispute whatever should arise between the Members of the League
of Nations relating to the interpretation or the application of those
provisions, which cannot be settled by negotiation, this dispute
shall be submitted to the Permanent Court of International Justice
to be established by the League of Nations.”

On 5 August 1920 the Council of the League asked the Principal
Allied and Associated Powers to name the Powers to whom they
had decided to allocate the Mandates, and to communicaté to the
Council the terms and conditions of the Mandates which they pro-
posed should be adopted by the Council in terms of Article 22.
In December 1920 draft Mandates, including one for South West
Africa, were submitted to the Council of the League by the Govern-
ment of the United Kingdom. Thereupon the Council referred
these drafts to the Secretariat for consideration and “‘to consult
other legal experts on any points they consider necessary’. The
wording of the terms in this draft was substantially the same as
the draft prepared by the Commission of the Supreme Council of
the Principal Allied and Associated Powers in rg1g. Thereupon the
Council made its declaration of 17 December 1920.

It will be observed that the compromissory clause was amended
to read “The Mandatory agrees’, etc., instead of “if any dispute...
should arise between Members of the League of Nations’. The
reason for this change, according to Viscount Ishii, was that the
Council had been advised that Members of the League, other than
the Mandatory, could not be forced against their will to submit
their differences to the Permanent Court of International Justice.
Members of the League were clearly not considered to be Parties
to any “agreement” embodied in the terms of the Mandate Declara-
tion.

The amendment made by the Council of the League to the draft
Mandate Declaration submitted to it is of considerable significance.
It reveals that the Council thought that it was responsible for the
terms of the Mandate Declaration and that it could amend the
terms of the draft submitted to it. The amendment to Article 7
is certainly not of a minor nature. The draft submitted to the Council
provided for compulsory jurisdiction relative to disputes between
Members of the League. If this provision was retained and agreed
to by Members of the League, the Respondent could have brought
proceedings against Members of the League, and would not have
been obliged to wait for a clarification of legal issues until pro-
ceedings were instituted against it. Furthermore, if the draft
remained unamended, Members of the League could have brought
contentious proceedings against one another relative to the in-
terpretation or application of the provisions of the Mandate.
In its original form the compromissory clause in Article 7 approx-

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imated a declaration by each Member of the League under the
provisions of Article 36 of the Statute of the Permanent Court of
International Justice, and complied with the condition of recipro-
city provided for therein. In its amended form Article 7 imposes a
unilateral obligation on the Mandatory without any reciprocity.

The first issue, namely, whether the Mandate Declaration is a
treaty or convention in force, has been fully dealt with in the Judg-
ment of Judge Sir Percy Spender and Judge Sir Gerald Fitzmaurice,
and it is sufficient to say that I fully endorse their views that it
is not a treaty or convention in force.

The next issue is whether the legal effect of Article 7 of the
Mandate Declaration or any amendment thereof is that the Respon-.
dent has agreed to an action being instituted against it relative
to the interpretation or the application of the provisions of the
Mandate by the Applicants. Here again, I am in full agreement
with the views of Judge Sir Percy Spender and Judge Sir Gerald
Fitzmaurice, but inasmuch as I desire to emphasize certain aspects
of this issue, I shall deal therewith fully.

’ The Applicants contend that they are ex-Members of the League

and Members of the United Nations, and that in terms of the
compromissory clause in Article 7 of the Mandate Declaration,
Article 37 of the Statute of this Court, and Article 80 (1) of the
Charter of the United Nations, the Respondent has agreed to such
actions being instituted against it by either ex-Mémbers of the
League or Members of the United Nations.

I shall first deal with the Mandate Declaration and thereafter
with the aforesaid provisions of the Statute of this Court and the
Charter of the United Nations.

It will be observed that the Mandatory’s substantive obligations
are contained in Articles 2-5 of the Mandate Declaration, and the
procedural obligations in Articles 6 and 7. Articles 2-5 relate to
the administration of the territory. It will also be observed that
Articles 6 and 7, as well as that part of Article 5 which provided
for the admission of missionaries who are nationals of Members of
the League, depended for their fulfilment on the existence of the
League of Nations. For the purposes of issues now being consi-
dered, the aforesaid provision of Article 5 is not of any importance
and will not be dealt with. Article 6 depended for its fulfilment on
the existence of the League, as without a League there could not

- be a Council of the League to report to, and the compromissory
clause in Article 7 depended for its fulfilment on the existence of
the League, as without a League in existence there could not be
a Member of the League.

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The ordinary natural meaning of the expression ‘Member of the
League” in Article 7 is a State which is a Member of the League.
The Article does not refer to members of international organizations
generally. It refers to membership of a particular organization:
the League of Nations. There is no reference to non-members,
ex-members of the League, or Members of the United Nations.
The expression ““Member of the League” appears in all but four
of the articles of the Covenant. It is used in all the Mandate in-
struments, not only in the compulsory jurisdiction clauses but also
in other clauses where special benefits are reserved for Members of
the League. In all these instances it could have been used only as
describing Members of the League at the time when the intended
privilege was sought to be enjoyed. All these provisions depended
for their fulfilment upon the existence of the League.

It is contended that ‘““Member of the League of Nations” in
Article 7 does not mean “Member of the League of Nations”,
but means a State which is or has been a Member of the League of
Nations. It is argued that this extraordinary meaning is justified
as the natural and ordinary meaning of these words is incompatible
with the spirit, purpose and context of the clause in which they
appear. Three reasons are advanced for this proposition.

The first is that the judicial protection of the sacred trust of
civilization was an essential feature of the Mandates System. The
answer is that the Mandate Declaration for South West Africa did
not provide for judicial protection or judicial control; but even if
it did it cannot be said that this provision was an essential feature
of the Mandate. In any event, this reason affords no justification
in law or logic for giving the words “Member of the League” a
meaning they are not capable of bearing.

Article 22 (1) of the Covenant required the application of the
principle that securities for the performance of the sacred trust
referred to therein should be embodied in the Covenant. Securities
for the protection of the sacred trust were in accordance with this
principle embodied in Article 22, but judicial protection or judicial
control was not one of these securities. No organ of the League was
authorized to add to these securities, which means that securities
could only have been added by an amendment of Article 22 in
terms of the provisions of Article 26 of the Covenant, and no such
amendment has ever been made.

The resolution of the Council which constitutes the Mandate
Declaration has not been embodied in the Covenant. There is no
legal principle that the executive acts of an executive organ is
embodied in the enabling authority. Thus, a ministerial regulation
under a statute is not embodied in the statute, nor are the decisions

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of a board of directors embodied in the Articles of Association of
a Company. If the Mandate Declaration was embodied in the
Covenant of the League the provisions relating to the amendment
of the Covenant (Article 26 of the Covenant) would have applied
thereto; but they do not apply inasmuch as Article 7 of the Man-
date Declaration provided specifically that the Mandate could be
amended with the consent of the Council.

In any event, the power of the Council was confined to defining
the degree of authority, control or administration to be exercised
by the Mandatory and did not include any power to add to the
securities relating to the supervision over the Mandatory embodied
in Article 22. The supervision over the Mandatory was entrusted
to the Council of the League and the Mandates Commission and
there could not have been any intention to authorize concurrent
supervision by the appointment of every Member and ex-Member
of the League as individual guardians of the sacred trust or to
confer on each of these States the right to institute proceedings
against any Mandatory whenever it was considered that a breach
or abuse of the Mandate had taken place.

It follows that the compromissory clause in Article 7 of the
Mandate Declaration was not intended to impose any obligation
other than that the Mandatory was obliged to consent to the sub-
mission of disputes relating to the interpretation or application of
the Mandate between it and another Member of the League, if such
disputes could not be settled by negotiation, to the Permanent
Court of International Justice. “Disputes” had no meaning other
than its ordinary meaning in compromissory clauses, i.e., disagree-
ments relating to the legal rights of the parties. There clearly could
not have been any intention to confer general supervisory rights on
every Member or ex-Member of the League.

It has been contended that inasmuch as it was realized that by
abusing the unanimity rule which applied to the Council a Man-
datory could frustrate the supervision of the Council, and that
for this reason it was considered necessary to arm every Member of
the League (and every ex-Member of the League) with supervisory
powers including the right to institute contentious proceedings
against the Mandatory whenever such State thought that the Man-
date had been abused or breached.

It was with reluctance that Mandatories such as the Respondent,
New Zealand and Australia agreed to the supervision of the League.
They obviously only agreed to the supervision by the Mandate
Commission and the Council of the League on account of the pro-
tection afforded them by the procedural provisions of the Covenant,
and the fact that the Council was a small and select body of States.
It is not reasonable to assume that they would have agreed to
additional supervision by every Member and every ex-Member of
the League armed with the right to institute legal proceedings

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against them whenever it was considered that the Mandate had
been breached or abused.

If Article 7 was intended to have this far-reaching effect some-
body would have made some reference thereto and it would have
been recorded somewhere. It would have been the subject of violent
debates. Not one word of evidence to support this theory is to be
found in the travaux préparatoires or in any contemporary writings
or in the subsequent conduct or statements of the parties. The pos-
sibility of the failure of the machinery devised in the Covenant
was not contemplated at the time. Moreover, the fact that for
more than forty years not a single State ever sought to act as
an individual supervisory authority in itself effectively refutes
the aforesaid contention.

In any event, however important it may have been, the com-
promissory clause in Article 7 of the Mandate Declaration can in
no way be said to have been an indispensable feature of the Mandate.
Had it been omitted from the Mandate Declaration a valid Mandate
would nonetheless have been constituted in accordance with the
provisions of Article 22. The Permanent Court of International
Justice would not, and could not, have held that Article 22 of the
Covenant contained an implied provision that a compromissory
clause was essential. It is significant that the Charter of the United
Nations does not provide for the compulsory jurisdiction of any
Court in regard to the sacred trust created in Article 73, nor is such
a provision contained in Chapters XII and XIII, which deal with
the international trusteeship system. There are in fact trusteeship
agreements which do not contain any provision for the compulsory
jurisdiction of the Court. If the Permanent Court of International
Justice came to an end for some reason or other one could not have
argued that for that reason the Mandate had come to an end.

The second reason advanced for not giving the words ‘“Member
of the League” their ordinary and natural meaning is that “‘the
right to implead the Mandatory Power before the Permanent Court
was conferred on the Members of the League because it was re-
garded as the most reliable and enduring procedure of ensuring
the protection of the Court, whatever might happen to or arise
from the machinery of administrative supervision”. It is difficult
to understand this reason but it apparently means that it was
considered that the right to bring contentious proceedings should
survive the League or the organs of the League. Here again we
have a bare assertion unsupported by facts or reasons.

The truth is that the possibility of the dissolution of the League
was not contemplated when the Covenant was agreed to or when
the Mandate Declaration was made and this consideration could
therefore not have constituted a reason for conferring rights on
States irrespective of whether they remained Members of the

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League or not rather than for as long as they remained Members
of the League. If it is true that the authors of the Mandate Declara-
tion actually intended that the words “Members of the League”
should not have their ordinary and natural meaning it is difficult to
see why more appropriate terminology was not employed; in
other words if it was intended that “Member of the League”
should not mean Member of the League why were the words
“Member of the League” preferred?

The third reason advanced is that a tacit agreement was reached
among all the Members of the League at its dissolution to the
effect that “Member of the League’’ should be construed as meaning
ex-Member of the League. An agreement in 1946 could amend the
provisions of Article 7, which came into existence in 1920, but it
clearly cannot have any bearing on the meaning of the Article
prior to the amendment. I shall deal fully with this contention
when considering the legal effect of the statements and resolutions
at the dissolution of the League. It is sufficient for the moment
to observe that if the first two reasons are sound there would
have been no need for this further agreement.

This is no. a case where the Court has to decide between two
possible meanings as the words ‘Member of the League” in Article 7
are clear and unambiguous and capable of only one meaning.

It is accordingly clear that the compromissory clause in Ar-
ticle 7 depended for its fulfilment on the existence of the League,
and is no longer capable of fulfilment since the dissolution of the
League unless (a) there exists a substantive rule of international
law which provides for automatic substitution of ex-Members
of the League or Members of the United Nations for Members
of the League, or (6) the Respondent is a party to an agreement,
express or implied, in terms whereof ex-Members of the League
or Members of the United Nations were substituted for Members
of the League in the aforesaid provision.

The Applicants contend that organs of the United Nations have
been substituted for the Council of the League and the Mandate
Commission, and that Members of the United Nations have been
substituted for Members of the League in Article 7 of the Mandate.
This submission is apparently mainly based on what the Applicants
term “‘the principle of succession”. On this principle they base a
suggestion that even if Article 37 of the Statute of this Court had
not been enacted, this Court could be held to have been substituted
for the Permanent Court of International Justice in Article 7. The
Applicants further submit in the alternative that “Member of the
League of Nations” in Article 7 should now be read as “Member
of the League of Nations at the time of its dissolution”, and for
this submission they rely on what they term the concept of the

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limited ‘‘de facto survival of an entity. which has been formally
dissolved”.

There is no substantive rule of international law which provides
that where an international organization comes to an end, and
another international organization performing similar functions
exists at that time, that the powers and functions of the dissolved
organization pass automatically to the organs of the new organi-
zation, or that the rights of the Members of the former pass to the
Members of the latter, irrespective of the intention of the parties
to the relevant instruments relating to these organizations. In
Ambatielos’s case (I.C.J. 1952, p. 54), Judge Levi Carneiro remarked:

“Even when the organ which was formerly competent has been
abolished, its powers cannot be regarded as automatically trans-
ferred to the new organ which replaces it.”

No such rule of automatic transfer is to be found in any of the
sources of international law enumerated in Article 38.of the Statute
of this Court. There are no international conventions, general or
particular, establishing such a rule, there is no general international
custom to this effect, nor is such a rule to be found in the general
principles of law recognized by civilized nations.

Apart from the fact that no source of international law recognizes
such a principle, common-sense and logic require that such a rule
should not exist. If it did exist it would mean that even an express
provision in a treaty or convention could not avoid its effect. It
follows that there can at most be a rule to the effect that, in the
absence of any indication of a contrary intention by the parties to
the instruments concerned, it shall be presumed that an automatic
transfer was intended. But even such a general rule is not to be
found in any of the sources of international law.

It may however be that the nature of a particular function of an
organ of an organization which is dissolved is such that the rules
of construction require the Court to imply, in the light of the evi-
dence afforded by the particular circumstances, that a transfer must
have been intended to take place. Such a conclusion would be the
result of the application of rules of construction determining the
intention of the parties, not the effect of a substantive rule of law.

The Applicants rely inter alia on two statements of the late
Judge Lauterpacht, but a careful analysis of these statements in
their context reveals that the Judge was here concerned with the
application of rules of construction and that he did not intend to
state a rule of substantive law. The first statement relied upon is
a quotation from Oppenheim, L., International Law—A Treatise,

288
604 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

Volume 1, Eighth Edition, ed. by H. Lauterpacht, Longmans, Green
and Co., London, 1955, p. 168, and it reads as follows:

“While as a rule the devolution of rights and competences is
governed either by the constituent instruments of the organizations
in question or by special agreements or decisions of their organs,
the requirement of continuity of international life demands that
succession should be assumed to operate in all cases where that is
consistent with or indicated by the reasonably assumed intention of
the parties as interpreted in the light of the purpose of the organizations
in question.” (Italics added.)

It is clear that the author was here dealing with an implied term
—“reasonably assumed intention of the parties’—while also
stressing the ut res magis valeat quam pereat rule, including the rule
that one should have due regard to the object of the parties. The
other passage referred to is from Lauterpacht, H., The Development
of International Law by the International Court, Stevens and Sons,
London, 1958, at page 280:

“Such importation ... of the rules of succession. in relation to
international organizations is nomore than an example of legitimate
application of the principle of effectiveness to basic international
instruments.”

Here again the Judge was stressing the rule of ut res magis valeat
quam pereat and did not intend to state a principle not based on
the common intention of the parties to the instruments concerned.
In fact, the statement from Oppenheim referred to above is quoted
by Lauterpacht at pages 279-280 in The Development of International
Law by the International Court, and immediately thereafter follows
the second statement relied upon by the Applicants.

At page 281 of the same work, Lauterpacht states:

__ “The absence of agreement could not properly be supplemented
by an inference aiming at securing for the instrument in question a
higher degree of effectiveness than was warranted by the intentions of
the parttes.”’ (Italics added.)

And at page 290:

“Effectiveness being—in general—a principle of good faith is a
matter of circumstance and degree... But good faith requires no
more than that effect be given in a fair and reasonable manner to the
intention. of the parties. This means that on occasions, if such was
the intention of the parties, good faith may require that effectiveness
of the instrument should fall short of its apparent and desirable
scope. The principle of effectiveness cannot transform a mere
declaration of lofty purpose—such as a universal declaration of
human rights—into a source of legal rights and obligations.”

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In support of their alternative contentions the Applicants point
to the Statutes of certain States of the United States of America
which by express provision enable a dissolved corporation to remain
de facto in existence until it winds up its corporate affairs, and
statutes which by express provision enable persons who were
corporate directors at the time of dissolution of a corporation to
sue as trustees on any claim of the corporation; and they say that
civil law countries have similar legislation which keeps alive and
carries over the legal existence of rights and duties of dissolved
entities. I find it impossible to see on what legal principle a rule
of international law can be evolved from the above to the effect
that rights held by members of an international organization in
their capacities as members of that organization—the right to
invoke Article 7 of the Mandate was limited to Members of the
League—remain in force after the dissolution and liquidation of
such an organization. In each of these cases cited by the Applicants
the carry-over operates solely for the purpose of winding up the
affairs of the corporation. The acts authorized are performed on
behalf of a corporation which is being liquidated in pursuance of
the rights of that corporation, not in pursuance of the rights of its
former members. It should further be noted that this limited carry-
over operates solely by virtue of express legislative provisions. Even
if one could apply these provisions mutatis mutandis in international
law one could not possibly arrive at a principle such as is contended
for by the Applicants. The object served by the aforesaid municipal
statutory provisions is to bring about a liquidation of the rights
and obligations of corporations—not to perpetuate the rights of its
individual members which they held as members.

I now proceed to consider whether the Covenant of the League
or the Mandate Declaration contain any provision, express or
implied, to the effect that upon the dissolution of the League
“Member of the League” in Article 7 of the Mandate Declaration
should be construed as meaning “ex-Member of the League” or
“Member of the United Nations”.

It is common cause that neither Article 22 of the Covenant of
the League nor Article 7 of the Mandate Declaration or any other
provision of these instruments contains any express provision to
the effect that upon the dissolution of the League “Member of the
League” should be construed as meaning Member of the United
Nations or ex-Member of the League, and the question accordingly
is whether any implied provision to this effect is to be found either
in the Covenant or in the Mandate Declaration.

I have already shown that the compulsory jurisdiction of the
Court is not one of the securities embodied in the Covenant, and

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that the compromissory clause in Article 7 was not an indispensable
feature of the Mandate. In any event it is clear that had the issue
been raised when the resolution which constitutes the Mandate
Declaration was adopted as to what would happen to the compro-
missory clause on the dissolution of the League, the reply would
probably have been that provision had been made for amending
the Covenant of the League and the Mandate Declaration and that
such an issue should be left to be dealt with by the League or the
Council, in the light of circumstances prevailing at the time of the
dissolution of the League. There is no justification for the suggestion
that the parties would have replied that in such an event “Member
of the League” should be construed as either meaning “‘ex-Member
of the League”, or ‘Member of another international organization
performing similar functions to that of the League”. To imply such
a provision would amount to assuming a common intention which
in fact did not exist, would constitute a total disregard for the plain
and unambiguous meaning of words, and would amount to a
deliberate revision, not to an interpretation, of the Mandate De-
claration.

T have so far dealt with Article 7 of the Mandate Declaration.
Article 6 of this Declaration has no direct bearing on jurisdiction.
There is a vast difference between Articles 6 and 7. Article 6 is
really not a term of the Council of the League’s definition of the
degree of authority, control or administration to be exercized by
the Mandatory; it, in effect, merely repeats paragraph 7 of Ar-
ticle 22 of the Covenant and what is implied therein. The fact
that these two Articles are numbered 6 and 7 in the Mandate
Declaration may create the superficial impression that they must
be regarded as of equal standing, but this is not justified. The
provisions of the one are to be found in the Covenant of the League
itself and constitute one of the securities specifically embodied in
the Covenant for the performance of the sacred trust of civilization
referred to therein, whereas Article 7 does not appear in the Cove-
nant and is not one of the securities for the performance of the
sacred trust.

From the above it follows that if there was any implied or tacit
agreement relative to the continued application of any provision
contained in the Mandate Declaration which depended on the
continued existence of the League for its fulfilment, such agreement
would much sooner relate to the provisions of Article 6 (that is
paragraph 7 of Article 22) than to Article 7 of the Mandate Decla-
ration.

One is accordingly entitled to assume that, if it should be found
that there was no implied agreement that Article 6 of the Mandate
Declaration (i.e. paragraph 7 of Article 22) would continue to apply
after the demise of the League in the sense that the organs of
another international body performing similar functions would be

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substituted for the organs of the League, it is very improbable that
it would have been impliedly agreed that on the dissolution of the
League Article 7 would continue to apply in the sense that ex-
Members of the League, or Members of another international organ-
ization performing functions similar to those of the League, would
be substituted for Members of the League. There is considerable
evidence available relative to the intention of the parties in regard
to Article 6 and an investigation whether there exists an implied
agreement that Article 6 should now be read as if the organs of the
United Nations had been substituted fer the organs of the League
of Nations, seems desirable.

The obligation to report annually was limited by paragraph 7
of Article 22 of the Covenant and by Article 6 of the Mandate to
an obligation to report annually to the Council of the League
of Nations. As a matter of language, the words of these provi-
sions are not capable of including an obligation to accept in-
ternational supervision generally or to report to some international
body other than the Council of the League. There are no rules of
interpretation giving them such a meaning.

An implied term that on the dissolution of the League the
functions of the Mandates Commission and the. Council of the
League would automatically be transferred to organs of another
similar international organization cannot be said to be necessary.
Supervision by the Council of the League was important, but not
essential for the existence of the Mandate, but even if it was it does
not follow that for that reason the parties must have intended that
an organ of a future international organization would take over on
the demise of the League. Respondent would certainly first have
required information about the constitution of such an as yet
unknown organization before assenting to any automatic substitu-
tion. It cannot be said that it is clear that if the parties, when
negotiating, had adverted to the possible dissolution of the League,
they would have agreed to provide for the continued supervision
of the mandated territory in that particular way. Article 22 expressly
provides that securities for the performance of the trust were to be
embodied in the Covenant and one of the securities embodied
therein was that the Mandatory was to render to the Council of the
League an annual report in reference to the territory committed
to its charge. Another security is that a particular commission was
to be constituted to receive and examine the annual reports of the
Mandatories and to advise the Council of the League on all matters
relating to the observance of the Mandates. To add a further, or
different security not stated in the Covenant would be to do violence
to the clear and unambiguous meaning of the phrase ‘and that
securities for the performance of this trust should be embodied in
this Covenant’; and to add a term to the effect that on the demise
of the League the functions of the Council of the League and the
Mandates Commission would be performed by an organ of another

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international organization would be tantamount to adding a security
not embodied in the Covenant. The object of the parties was that
the principle that the well-being and development of the peoples
of South West Africa should form a sacred trust of civilization,
should be applied, but their object was also that this principle
should be applied and this purpose achieved within the framework
of Article 22. The object was, in a sense, to define the status of
South West Africa, to create an international regime, but an integral
part of this definition of status, of this regime, was supervision by
the Council of the League and a Mandates Commission constituted
by the League. Supervision by the organs of some unknown and
unforeseen international organization was not included in the
definition of the status of South West Africa, was not included in
this international regime. The aforesaid principle, stated in Article
22, cannot be given a meaning by inference which has the effect of
altering the clear and unambiguous provisions of the rest of Article
22, e.g. it cannot be held that although the detailed provisions of
Article 22 required an annual report to be sent to the Council of
the League there nonetheless existed an obligation to submit
reports to all civilized nations, whether Members of the League or
not, inasmuch as the well-being of the peoples of the mandated
territories is a sacred trust of civilization and that this well-being
could be better advanced if reports were sent to all civilized States.
Similarly, it cannot be held that this general principle justifies the
addition of a term that on the demise of the League the organs
created by some other treaty or convention would be substituted
for the organs referred to in Article 22.

The relevant historical background confirms that the parties who
agreed to Article 22 of the Covenant did not have any common
intention that the obligation to report to the Council of the League
should be interpreted as a general obligation to accept international
supervision, or to report to an international institution other than
the Council of the League.

It will be recalled that Article 22 of the Covenant was the result
of compromise. In fact the Prime Minister of Australia (he was
speaking on behalf of both Australia and New Zealand) made it
clear at the conference in 1919 that this compromise represented
“the maximum of their concessions”. On this occasion General
Botha, the South African Prime Minister, said, inter alia:

“He appreciated the ideals of President Wilson... They must
remember that their various peoples did not understand everything
from the same point... Personally he felt very strongly about the

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question of German South West Africa. He thought that it differed
entirely from any question they had to decide in this conference,
but he would be prepared to say that he was a supporter of the
document handed in that morning [by Lloyd George], because he
knew that, if the idea fructified the League of Nations would consist
mostly of the same people who were present there that day, who
understood the position and who would not make it impossible for
any mandatory to govern the country. That was why he said he
would accept it [the mandatory system].”

It is clear that Australia, New Zealand and Respondent were not
agreeing to supervision by a possible future international organi-
zation, the composition of which they could not possibly have
known.

When an agreement is the result of a compromise and an issue
arises whether any given term should be implied or not, common
sense dictates that one should have due regard to the attitude of
the parties prior to the concession, or concessions, which made the
agreement possible. It should not be inferred that a party intended
to concede more than the words of the agreement conveyed and
more than was necessary to effect the compromise. It was with great
difficulty that certain States were persuaded to accept the super-
vision of the organs of the League; on what basis can it be assumed
that they would have agreed to the supervision of the organs of
another undefined organization? The words of a compromise should
never be whittled down by way of interpretation so as to arrive
at a result not contemplated by the parties. The Court clearly
cannot infer a common intention to contract on the basis of a term
not conveyed by the words employed by the parties where the sur-
rounding circumstances reveal that some of the parties at least
would not have agreed thereto had it been raised.

The conduct of the Members of the League subsequent to the
Covenant being entered into, and subsequent to the Mandate
Declaration, clearly reveals that there did not exist any common
intention that the functions and powers of the League would
automatically be transferred to a similar international organization
on the demise of the League. At no time during the existence of
the League did any Member thereof indicate that it considered
that the Covenant, or the Mandate instrument, was entered into on
the basis of such a provision. If such an implied term in fact existed
one would have expected Members of the League who attended
the San Francisco Conference in 1945 to have said so when the
Mandates were discussed. One would have expected the Members
of the Preparatory Commission to have made some reference
thereto. One would have expected the Members of the League
to have referred to it at the dissolution of the League. On this oc-
casion the representative of China stated that there would be no
automatic succession of the League’s functions in respect of the
Mandates to the United Nations and his statement was not chal-

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lenged. In fact, not a single ex-Member of the League took up the
attitude that the United Nations had succeeded to the League’s
functions in respect of the Mandates until 1948, when only four
States made statements which could possibly be construed as a
denial of Respondent’s contention that the supervisory functions
of the League had not been transferred to the United Nations.
Thirty-four States participated in reports on debates concerning
mandated territories not placed under trusteeship, and of these,
29 States expressed views in conformity with the contention that
the United Nations has no supervisory authority in respect of
South West Africa. Of these 29 States a large number were Mem-
bers of the League at its inception. If the Covenant of the League,
or the Mandate Declaration, was intended to embrace an implied
provision that on the dissolution of the League another internation-
al organization performing similar functions, although different-
ly constituted, would succeed the League, and that its organs
would succeed the organs of the League, it is incredible that
not a word was ever said about it, particularly during the
crucial years 1945, 1946 and 1047.

.

I have, up to this stage, dealt with the question whether one is
justified in inferring a term that on the dissolution of the League
the functions and powers of the Council of the League and the
Mandates Commission would be transferred to similar organs of
a similar organization existing at the time of the dissolution of the
League, without considering whether the organs of the United
Nations can at all be said to be similar to those of the League.
As I shall show infra there are very material differences between
the functions and the constitution of the organs of the United
Nations and the functions and constitution of the organs of the
League and the Mandates Commission. My conclusion is that one
cannot find any implied term in the Covenant or the Mandate
Declaration to the effect that the powers and functions of the Council
of the League and the Mandates Commission would be automati-
cally transferred on the demise of the League to another organiza-
tion differing in such material respects from the League. This
conclusion affords, for the reasons I have already stated, an ad-
ditional reason for holding that neither the Covenant of the League
nor the Mandate Declaration contained any implied provision to
the effect that on the dissolution of the League ex-Members of the
League, or Members of the United Nations, would be substituted
in Article 7 of the Mandate for the Members of the League.

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If neither the Covenant nor the Mandate contains any provisicn
to the effect that former Members of the League of Nations, or
Members of the United Nations, would be substituted for Members
of the League of Nations on the dissolution of the League, it must
follow that Article 7 of the Mandate could no longer apply on the
dissolution of the League unless the Respondent has been a party to
some other agreement whereby ex-Members of the League of Na-
tions, or Members of the United Nations, were substituted for
Members of the League of Nations in Article 7.

For the reasons already stated I shall also inquire whether
the provisions of paragraph 7 of Article 22 of the Covenant, or the
provisions of Article 6 of the Mandate Declaration, were in any man-
ner amended by the substitution of organs of the United Nations
for the organs of the League. It should however be emphasized
that even if it were to be found that Article 6 was thus amended
it does not follow that Article 7 was similarly amended. Some of
the arguments advanced in support of the contention that Article 6
still applies cannot apply to Article 7.

I now proceed to deal with the provisions of the United Nations
Charter.

The Charter of the United Nations was drafted, unanimously
agreed to and signed by all the representatives at the San Francisco
Conference held between 24 April and 26 June 1945. It came into
force on 24 October 1945. The League of Nations remained in
existence until April 1946 when it was dissolved by its Members.

In a very loose and general sense it may be said that the United
Nations is a successor of the League of Nations, but from a legal
and historical point of view this is not so. Two of the major Powers
in the United Nations, the United States of America and the
U.S.S.R., were not Members of the League at its dissolution,
and both were opposed to any notion that the United Nations was
to be the League under a different name or an automatic successor
in law to the League’s assets, obligations, functions or activities.
The U.S.S.R. was expelled from the League in December 1930,
and the United States never was a member thereof. Membership
of the League and of the United Nations were never identical.
Of the fifty-one nations which constituted the Founder Members
of the United Nations, seventeen were not at the time Members
of the League, and eleven Members of the League were not original
Members of the United Nations. The many and detailed treaties
between the League of Nations and the United Nations relative
to assets and non-political functions taken over by the United
Nations constitute clear evidence of the fact that there was no
automatic succession.

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What strikes one forcibly is that no provision is made in any
of the provisions of the Charter of the United Nations, either
generally or specifically, for the assumption by or the transfer
to the United Nations or any of its organs of the functions or duties
of the organs of the League of Nations in respect of the mandates,
nor is there any provision which, directly or indirectly, provides
for the substitution of Members of the United Nations or ex-
Members of the League for Members of the League in the Mandate
Declarations. It seems that had the parties to the Charter intended
to substitute the United Nations or any of its organs for the Council
of the League in Article 22 or the Mandate Declaration, or that
one or other of the organs of the United Nations should assume
the functions of the organs of the League under the mandates, or
that Membership of the United Nations or ex-Membership of the
League should be substituted for Membership of the League, such
intention would have been expressed in positive terms. It is in-
credible if in fact general agreement existed in regard to so fun-
damental a principle that it would have been omitted from a docu-
ment drafted with such care and caution. This is particularly so
when one bears in mind that the mandates are specifically referred
to in the Charter.

Chapters XII and XIII of the Charter of the United Nations
provide for thé establishment of a Trusteeship System which, in a
very broad sense, may be said to correspond to the Mandate System
of the League of Nations, but it is clear that the supervisory
machinery provided for in these Chapters differs very materially
from that which had operated in respect of the mandates. Under
the Mandate System the Mandate Commission was a body of
independent experts, whereas the Trusteeship Council consists of
government representatives of Member States. Under the Mandate
System the ultimate supervisory authority was the Council of the
League, which could only arrive at decisions on a unanimous
vote. Under the Trusteeship System the ultimate supervisory
authority is the Security Council in the case of a trusteeship
“in the strategic areas’, or otherwise it is the General As-
sembly of the United Nations. In the Security Council decisions
may be taken by seven affirmative votes, including those of five
permanent Members out of a total of eleven. In the General As-
sembly decisions mav be arrived at by a bare majority, or on impor-
tant questions by a two-thirds majority.

In Voting Procedure on Questions relating to Reports and Petitions
concerning the Territory of South West Africa, page 75, this Court
said:

“The voting system is related to the composition and functions
of the organ. It forms one of the characteristics of the constitution
of the organ. Taking decisions by a two-thirds majority vote or by

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a simple majority vote is one of the distinguishing features of the Gen-
eral Assembly, while the unanimity rule was one of the distinguishing
features of the Council of the League of Nations. These two systems
are characteristic of different organs, and one system cannot be
substituted for the other without constitutional amendment. To
transplant upon the General Assembly the unanimity rule of the
Council of the League would not be simply the introduction of a
procedure but would amount to a disregard of one of the charac-
teristics of the General Assembly. Consequently the question of
conformity of the voting system of the Genera: Assembly with that
of the Council of the League of Nations presents insurmountable
difficulties of a juridical nature.”’

Apart from the sacred trust referred to in Chapter XI, it is
clear that the framers of the Charter of the United Nations contem-
plated only one form of trusteeship, namely that provided for in
Chapters XIT and XIII, and there was no contemplation of any
organs of the United Nations supervising mandates in terms
of the procedural provisions of the mandates concurrently with
the trusteeships. Article 77 (1 ) of the Charter provides that the
trusteeship system shall apply “to such territories in the following
categories as may be placed thereunder by means of trusteeship
agreements: (a) territories now held under mandate...”. From this
it is clear that there could not have been any contemplation
that the Trusteeship System would automatically without any
agreement apply to the territories held under mandate. Only
trusteeship agreements could bring these territories under the
Trusteeship System. There could not possibly have been any
intention that the organs of the Trusteeship System would auto-
matically without any trusteeship agreement be substituted for
the organs of the League in respect of territories held under mandate.

Article 37 of the Statute of this Court merely provides that
when in a treaty or convention in force provision is made for
reference of a matter to inter alia the Permanent Court of In-
ternational Justice, the matter shall, as between the parties to
the Statute of this Court, be referred to this Court. This Article
does not even specifically refer to mandates. Its legal effect is
simply to substitute the International Court of Justice for the Per-
manent Court of International Justice in disputes between Mem-
bers of the United Nations where the Permanent Court of Inter-
national Justice would otherwise in terms of a treaty or convention
in force have been the forum. It may be correct to say that Article 37
kept in force the compulsory jurisdiction provisions of treaties or
conventions providing for reference of disputes to the Permanent
Court of -International Justice which would otherwise have lapsed
on- the disappearance of the Permanent Court of International
Justice, but it does not purport to keep alive treaties or conventions
or provisions thereof that would have lapsed for any other reason.

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614 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

Several conditions had to be fulfilled before Article 7 of the Man-
date could be invoked against the Respondent. Two of these
were (a) that there had to be a Permanent Court of International
Justice, and(d)that the dispute had to exist between the Respon-
dent and another Member of the League of Nations. Both these
conditions are incapable of being complied with today, but if
Article 7 of the Mandate is a treaty or convention in force, the
effect of Article 37 of the Statute of this Court is to provide that
this Court takes the place of the Permanent Court of International
Justice, and the disappearance of the Permanent Court of Inter-
national Justice would therefore not be a valid reason for holding
that Article 7 of the Mandate no longer applies. The requirement
that the dispute must be one between the Mandatory and another
Member of the League of Nations is, however, not affected by
Article 37. It should be borne in mind that Article 37 is a general
provision applicable to all conventions or treaties in force con-
taining provisions for reference of matters to inter alia the Perma-
nent Court of International Justice, and any meaning given to
Article 37 in regard to any particular treaty or convention must
also apply mutatis mutandis to all other treaties or conventions
in force containing provisions for reference of matters to the Per-
manent Court of International Justice. The words “as between
the parties to the present Statute” were clearly not intended to
alter and cannot be read as altering the conditions which had to
be fulfilled in terms of the requirements of the different treaties or
conventions before an action could be brought in the Permanent
Court of International Justice. Thus, for example, if a treaty
covering international fishing rights contained a provision for
reference of disputes to the Permanent Court of International
Justice by a party to the treaty, provided such party held a quali-
fication such as membership of an international fishing organiza-
tion, Article 37 did not substitute Membership of the United
Nations for the qualification required under the treaty. Article 37
does not purport to preserve locus standi. The words “as between
the parties to the present Statute’ were obviously inserted because
the parties to treaties or conventions who were not parties to the
Statute of this Court would not be bound to accept the jurisdiction
of this Court in the place of the Permanent Court of International
Justice. Article 37 does not have and is not capable of being
construed as having the effect of amending the term of Article 7
of.the Mandate requiring the dispute to be one between the Man-
datory and another Member of the League, and it does not mean,
and it is not capable of meaning, that United Nations Membership
or ex-Membership of the League was substituted for Membership of
the League of Nations in Article 7. In this regard one must bear
in mind that when Article 37 came into operation the League and
the Permanent Court of International Justice were still legally
in existence but steps for their dissolution were in contemplation.

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The fact that express provision was made for substituting the
International Court of Justice for the Permanent Court of Inter-
national Justice in all treaties or conventions in force, without
any corresponding provision being made to substitute an organ
of the United Nations for the Council of the League in Article 6 or
to amend the provision in Article 7 that the dispute had to be
between the Mandatory and another Member of the League of
Nations, is significant. Had it been the intention of the draftsmen
of the Charter to amend mandates in the respects suggested, they
would undoubtedly have inserted express provisions to that effect.
Article 37 clearly does not contain any provision, express or
implied, to the effect that the words ““Member of the League of
Nations” in Article 7 were replaced by the words “‘ex-Member of the
League of Nations” or “Member of the United Nations”

I now proceed to consider the provisions of Article 80, sub-
section 1, and in particular its legal effect in regard to Articles 6
and 7 of the Mandate. It reads as follows:

“Except as may be agreed upon in individual trusteeship agree-
ments, made under Articles 77, 79 and 81, placing each territory
under the trusteeship system, and until such agreements have been
concluded, nothing in this Chapter shall be construed in or of itself
to alter in any manner the rights whatsoever of any States or any
peoples or the terms of existing international instruments to which
Members of the United Nations may respectively be parties.”

The ordinary grammatical meaning of the words of Article 80 (1)
is that Chapter XII should not be construed as (a) altering in any
manner the rights whatsoever of any States, or (6) altering in any
manner the rights of any peoples, or (c) altering in any manner
the terms of existing international instruments to which Members
of the United Nations may be parties, until trusteeship agreements
have been concluded. It will be observed that this Article merely
purports to be an interpretation clause, and it expressly records
that it should not be interpreted as amending any rights under
any existing international instruments or the terms of such instru-
ments. If Article 80 (1) applies to mandates, it follows that, far
from amending any rights under the mandates or the terms of
any mandate, it expressly records that this is not being done.

‘It has however been suggested that this Article purports to
safeguard the rights of States and peoples until trusteeship agree-
ments are concluded. The argument then proceeds that the protec-
tion afforded these peoples by Articles 6 and 7 of the Mandate
Declarations could only be safeguarded if the obligations created
by these provisions remained in force after the dissolution of the

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League until trusteeship agreements were entered into, and that
inasmuch as the existence of the League was essential for the ful-
filment of these provisions, the substitution of the organs of the
United Nations for the organs of the League and Members of
the United Nations or ex-Members of the League for Members of
the League in Articles 6 and 7 respectively must be implied. The
words of Article 80 (x) are however not capable of such a construc-
tion. They are clear and unambiguous. The Article merely purports
to safeguard rights in the sense that Chapter XII must not be
construed as changing any rights. Its provisions are entirely negative.
If the aforesaid suggested implied term is read into Article 80 (1)
it would in effect mean that the provisions of Articles 6 and 7
of the Mandate were amended in the respects indicated above;
but Article 80 (x) itself contains the instruction that Chapter XII
(Article 80 is part of this Chapter) is not to be construed as amending
the terms of any instrument. It does not purport to provide for
the continuation of rights until trusteeship agreements are conclud-
ed where such rights would otherwise have terminated, either
on account of the provisions of the instrument containing them or
for some other valid reason.

Article 80 (x) is clear and unambiguous, but even if it is not
the relevant facts preceding the Charter of the United Nations as
well as the subsequent conduct of the parties concerned make it
impossible to give Article 80 (1) any meaning other than what has
been stated above to be its ordinary grammatical meaning, or to
infer any implied term to the effect that all the provisions of
mandates were to remain in force after the dissolution of the
League and then say that for this purpose the supervisory functions
of the organs of the League were transferred to the organs of the
United Nations and that Members of the United Nations or ex-
Members of the League must be substituted for Members of the
League.

If regard is had to the negotiations and discussions relating to
Article 80 (x) during the drafting of the Charter, there is no indica-
tion that the natural and ordinary meaning of the words of this
Article does not express the true common intention of the parties.
The delegation of the Respondent circulated on 7 May 1945 among
the other delegates and sought to introduce in Committee II/4
a statement which was read in the Committee on 12 May. This
statement and the introductory remarks which preceded its reading
are as follows:

“I wish to point out that there are territories already under
Mandate where the Mandatory principle cannot be achieved.

As an illustration, I would refer to the former German territory
of South West Africa held by South Africa under a ‘C’ Mandate.

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617

S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

The facts with regard to this territory are set out a in memorandum
filed with the Secretariat, which I now read: When the disposal of
enemy territory under the Treaty of Versailles was under consider-
ation, doubt was expressed as to the suitability of the Mandatory
form of administration for the territory which tormerly constituted
the German Protectorate of South West Africa.

Nevertheless, on 17th December 1920, by agreement between the
Principal Allied and Associated Powe s and in accordance with
Article 22, Part I (Covenant of the League of Nations) of the Treaty,
a Mandate (commonly referred to as a C Mandate) was conferred
upon the Government of the Union of South Africa to administer
the said territory.

Under the Mandate the Union of South Africa was granted full
power of administration and legislation over the territory as an
integral portion of the Union of South Africa, with authority to
apply the laws of the Union to it.

For twenty-five years, the Union of South Africa has governed
and administered the territory as an integral part of its own territory
and has promoted to the utmost the material and moral well-being
and the social progress of the inhabitants.

It has applied many of its laws to the territory and has faithfully
performed its obligations under the Mandate.

The territory is in a unique position when compared with other
territories under the same form of Mandate.

It is geographically and strategically a part of the Union of
South Africa, and in World War No. 1 a rebellion in the Union was

. fomented from it, and an attack launched against the Union.

302

It is in large measure economically dependent upon the Union,
whose railways serve it and from which it draws the great bulk of
its supplies.

Its dependent native peoples spring from the same ethnological
stem as the great mass of the native peoples of the Union.

Two-thirds of the European population are of Union origin and
are Union Nationals, and the remaining one-third are Enemy
Nationals.

The territory has its own Legislative Assembly granted to it by
the Union Parliament, and this Assembly has submitted a request
for incorporation of the territory as part of the Union.

The Union has introduced a progressive policy of Native Ad-
ministration, including a system of local government through
Native Councils giving the Natives a voice in the management of
their own affairs; and under Union Administration Native Reserves
have reached a high state of economic development.

In view of contiguity and similarity in composition of the native
peoples in South West Africa the native policy followed in South
West Africa must always be aligned with that of the Union, three-
fifths of the population of which is native.
618 S, W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

There is no prospect of the territory ever existing as a separate
state, and the ultimate objective of the Mandatory principle is
therefore impossible of achievement.

The Delegation of the Union of South Africa therefore claims that
the Mandate should be terminated and that the territory should be
incorporated as part of the Union of South Africa.

As territorial questions are however reserved for handling at
the later Peace Conference where the Union of South Africa intends
to raise this matter, it is here only mentioned for the information
of the Conference in connection with the Mandates question.”

The Respondent’s representative’s statement on 14 May at the
fourth meeting of the aforesaid Committee is reported as follows:

“The delegate from the Union of South Africa, supplementing
his remarks at the third meeting, said that the Committee should
bear in mind, in drawing up general principles, that the terms of
existing mandates could not be altered without the consent of the Man-
datory Power.” (Italics added.)

At the same meeting the representative of the United States of
America pointed out that his Government did not seek to change
the relations existing between a mandatory and a mandated terri-
tory without the former’s consent. The Committee also recorded
the following statement by the United States delegate:

“The delegate for the United States said that paragraph B (5)
was intended as a conservatory or safeguarding clause. He was
willing and desirous that the Minutes of this Committee show that
it is intended to mean that all rights, whatever they may be, remain
exactly the same as they exist—that they are neither increased nor
diminished by the adoption of this Charter. Any change is left as
a matter for subsequent agreements. The clause should neither add
nor detract, but safeguard all existing rights, whatever they may
be.” (Italics added.)

The final report of the Committee to Commission IT contained an
explanation that specific provisions should be made to the effect
that except as may be agreed upon in individual trusteeship agree-
ments and until such agreements had been concluded, nothing in
the Chapter on dependent territories is to be interpreted as altering
the rights of any States or any peoples or the terms of existing
international instruments to which Member States may be parties.

It will be observed in the first place that the object of paragraph
B (5) (which became Article 80) was to guard against the alteration
of rights as a result of the adoption of the Charter. In the second
place, what was safeguarded were the rights of States and of any
peoples and the terms of existing international instruments. It
follows that Article 80 was not intended to guard against an aïter-
ation of rights which came about by the dissolution of the League.

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In regard to Article 6 of the South West Africa Mandate, the
right against the Respondent was that an annual report should be
made to the Council of the League of Nations, and in regard to
Article 7 the right to bring an action in this Court was confined to
Members of the League of Nations. The facts related above clearly
provide no grounds for an inference that the United Nations or
any organ thereof was substituted for the Council of the League
on the dissolution of the League in Article 6 of the Mandate Decla-
ration, or that Members of the United Nations or ex-Members of
the League were substituted for Members of the League in Article 7.
On the contrary, they confirm the clear and unambiguous meaning
of the words of Article 80 (x). In any event, the subsequent conduct
of the Members of the League and Members of the United Nations
clearly revealed that they never regarded Article 80 (1) as contain-
ing an implied provision amending Articles 6 and 7 of the Mandate
in the respects indicated.

The League’s attitude towards the transfer of its functions under
treaties and conventions, including the Mandate instruments, was
not known when the United Nations Charter was drafted and
agreed. It was at least known that one Member of the League,
namely, the Respondent, was opposed to such a transfer as far as
South West Africa was concerned. Furthermore, it is clear that the
whole Conference realized that the taking over of the functions of
the League required investigation and further agreement. It is for
this reason that towards the conclusion of the San Francisco
Conference on 25 June 1945 there was established a Preparatory
Commission of the United Nations, each signatory State having
one Member. One of the items of the preparatory work entrusted
to this Committee was to “formulate recommendations concerning
the possible transfer of certain functions, activities and assets of the
League of Nations which it may be considered desirable for the
new Organization to take over on terms to be arranged” (italics
added).

An Executive Committee of this Commission was appointed, and
this Executive Committee again appointed a Sub-Committee to
investigate the possible transfer of functions, activities and assets
of the League. A report of the Executive Committee was considered
by the Commission in London on 24 November 1945, and the
Commission rendered its report on 23 December 1945.

The aforesaid Sub-Committee recommended, with certain ex-
ceptions and qualifications, the transfer of the functions, activities
and assets of the League, and one of the exceptions was the political
functions of the League “which have already ceased”. In regard
to the transfer of functions arising from treaties, however, it
recommended that the United Nations should adopt a resolution
expressing its willingness to exercise such functions and powers

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620 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

reserving, however, inier alia, the right to decide which functions
and powers it would be prepared to take over, and then added the
following:

“The transfer to the United Nations of functions or powers
entrusted to the League of Nations by treaties, conventions, agree-
ments or instruments having a political character would, if the
Parties to these instruments desired, be separately considered in each
case.” (Italics added.)

This paragraph was apparently not intended to apply to treaties,
conventions, agreements or instruments relating to the Mandates
System, as will appear from the specific observation made in regard
to the Mandates System. But it is significant that the Sub-Com-
mittee clearly considered that there was no general succession by
the United Nations to the functions and powers entrusted to the
League of Nations by treaties, conventions, agreements or instru-
ments having a political character. These matters were to be
separately considered in each case if the Parties to these instru-
ments so desired. The specific observation made in regard to
Mandates was as follows:

“Since the questions arising from the winding up of the Mandates
System are dealt with in Part 3, Chapter IV, no recommendation
on this subject is included here.”

It will be observed that the Sub-Committee considered that the
Mandates System was being wound up, not that it was being
continued, by a substitution of the organs of the United Nations
for the organs of the League of Nations.

In Chapter IV (this is the chapter referred to in the aforesaid
quotation), the Executive Committee recommended that, in view
of possible delay in the establishment of a Trusteeship Council, a
Temporary Trusteeship Committee should be created to carry out
certain of the functions assigned to the Trusteeship Council. Pending
the establishment of the Trusteeship Council, this Temporary
Committee was to advise the General Assembly on matters that
might arise with regard to the transfer to the United Nations of
any functions and responsibilities exercised until then under the
Mandates System. It recommended that the following be included
in the proposed provisional agenda of the Temporary Trusteeship
Committee:

“Problems arising from the transfer of functions in respect of
existing Mandates from the League of Nations to the United
Nations.”

I return to the recommendations of the Sub-Committee. It recom-
mended that a small committee should be appointed to negotiate
with the Supervisory Commission of the League of Nations with

305
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regard to the possible transfer of functions, and activities, as well
as assets.

The Executive Committee in substance accepted the Sub-Com-
mittee’s recommendations. Its recommendation No. x reads as
follows:

“That the functions, activities and assets of the League of
Nations be transferred to the United Nations with such exceptions
and qualifications as are made in the report referred to above and
without prejudice to such action as the United Nations may sub-
sequently take, with the understanding that the contemplated
transfer does not include the political functions of the League, which
in fact already ceased, but solely the technical and non-political
functions.”’

A part of the footnote thereof reads:

“The Committee recommends that no political questions should
be included in the transfer. It makes no recommendation to transfer
the activities concerning refugees, mandates, or international
bureaux.” .

In regard to treaties, international conventions, agreements, and
other instruments having a political character, it suggested that
the following resolution should be adopted by the General Assembly:

“The General Assembly of the United Nations decides that it
will itself examine or will submit to the appropriate organ of the
United Nations any request from the Parties that the United Nations
should take over the exercise of functions or powers entrusted to
the League of Nations by treaties, international conventions, agree-
ments, or other instruments having a political character.”’

The above recommendations reveal that the Members of the
Sub-Committee of thé Executive Committee did not consider that
the United Nations had assumed the functions of the League of
Nations in treaties or conventions, agreements or instruments
having a political character. It was thought that the transfer to the
United Nations of the functions or powers of the League under
these instruments was still to be considered, and if the Parties to
such instruments so desired, separately in each case. In regard to
Mandates, it was specifically recommended that a Temporary
Trusteeship Committee should be appointed to advise the General
Assembly on matters that might arise with regard to the transfer
of any functions or responsibilities to the United Nations “hitherto
exercised under the Mandates System”. The Executive Committee
made no recommendation to transfer the activities of the League
under the Mandates, but made a general recommendation in regard
to treaties or conventions, agreements or other instruments having
a political character, namely, that the United Nations would con-
sider a request from the Parties in regard to the taking over of such
functions or powers entrusted to the League.

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622 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

At the discussion of the recommendations of the. Executive
Committee by the Preparatory Commission, objections were raised
to the use of the word “‘transfer’’ in the recommendations concerning
functions and activities of the League, as this word appeared to
imply “a legal continuity which would not in fact exist”, and it was
suggested that the phrase “the assumption of responsibility for
certain functions and activities’ should be adopted. This was
eventually done. The recommendations of the Commission relevant
to functions and powers were adopted by the General Assembly in
its resolution of 12 February.

The Preparatory Commission did not accept the recommendations
in regard to a Temporary Trusteeship Committee. They were
replaced by a recommendation that the General Assembly should
adopt a resolution calling on States administering territories under
League of Nations Mandates to undertake practical steps for sub-
mitting trusteeship agreements in respect of these territories,
“preferably not later than during the second part of the first session
of the General Assembly”. No other proposal regarding the transfer
of functions and activities or the assumption of these functions and
activities was substituted for the rejected proposal. In the discussion
in the Fourth Committee of the Preparatory Commission, preceding
this resolution, Respondent’s representative

“reserved the position of his delegation until the meeting of the
General Assembly, because his country found itself in an unusual
position. The mandated territory of South West Africa was already
a self-governing country, and last year its Legislature had passed
a resolution asking for admission into the Union. His Government
had replied that acceptance of this proposal was impossible owing
to their obligations under the Mandate.

The position remained open, and his delegation could not record
its vote on the present occasion if, by so doing, it would imply that
South West Africa was not free to determine its own destiny. His
Government would, however, do everything in its power to im-
plement the Charter.”

In the discussion in the Plenary Committee meeting:

“the South African delegation associated itself wholly with a desire
of Committee IV to apply the principles laid down in the Charter,
and that its efforts had been directed towards that end. In view,
however, of the special position of the Union of South Africa, which
held a Mandate over South West Africa, it reserved its position
with regard to the document at present under review, and especially
because South Africa considered that it had fully discharged the
obligations laid upon it by the Allies, under the Covenant of the
League of Nations, on the advancement towards self-government
of territories under Mandate, and that the time had now come for
the position to be examined as a whole. For that reason the South

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623 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

African delegation reserved its attitude until the Assembly met.”

Once again, these facts negative the existence of any implied
term, either in the Covenant of the League, or in the Mandate
Declaration, or in Article 80 (x) of the Charter of the United
Nations, to the effect that the supervisory functions of the Council
of the League would be transferred to an organ of the United
Nations, or could be assumed by that Organization without the
consent of the Mandatories. If any such tacit agreement existed
and, in particular, if it had been intended that Article 80 (r) of the
Charter would have that effect, one would have expected that this
would have been mentioned during these deliberations and, in
particular, in response to the observations of the representative of
the Respondent.

The Preparatory Commission’s report was considered by the
General Assembly of the United Nations in January 1946. On
17 January the Respondent’s representative stated:

“Under these circumstances, the Union Government considers
that it is incumbent upon it, as indeed upon all other mandatory
Powers, to consult the people of the mandated territory regarding
the form which their own future government should take, since
they are the people chiefly concerned. Arrangements are now in
train for such consultations to take place and, until they have been
concluded, the South African Government must reserve its position
concerning the future of the mandate, together with its right of
full liberty of action, as provided for in paragraph 1 of Article 80
of the Charter.

From what I have said I hope it will be clear chat South West
Africa occupies a special position in relation to the Union which
differentiates that territory from any other C Mandate. This
special position should be given full consideration in determining
the future status of the territory. South Africa is, nevertheless,
properly conscious of her obligations under the Charter. I can give
every assurance that any decision taken in regard to the future of
the mandate will be characterized by a full sense of our responsibility
as a Signatory of the Charter, to implement its provisions, in con-
suitation with and with the approval of the local inhabitants, in the
manner best suited to the promotion of their material and moral
well-being.’”’

Reservations were also made on this day by the representative
of the United Kingdom in regard to Palestine. Not a single delegate
expressed any view to the effect that the attitudes adopted by the
Respondent and the United Kingdom were inconsistent with Article
80 (I) or any other provision of the Charter or Mandate. On the
contrary, the Respondent claimed that it had a full liberty of action
under Article 80 (1).

308
624  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

On 22 January 1946, in the Fourth Committee, Respondent’s
representative

“referring to the text of Article 77, said that under the Charter the
transfer of the mandates regime to the trusteeship system was not
obligatory. According to paragraph x of Article 80, no rights would
be altered until individual trusteeship agreements were concluded.
It was wrong to assume that paragraph 2 of this Article invalidated
paragraph 1. The position of the Union of South Africa was in
conformity with this legal interpretation.

He explained the special relationship between the Union and the
territory under its mandate, referring to the advanced stage of
self-government enjoyed by South West Africa, and commenting
on the resolution of the Legislature of South West Africa calling
for amalgamation with the Union. There would be no attempt to
draw up an agreement until the freely expressed will of both the
European and native populations had been ascertained. When that
had been done, the decision of the Union would be submitted to
the General Assembly for judgment.”’

It will be observed that on this occasion the Respondent’s
representative again relied upon Article 80 (x) of the Charter, stress-
ing that rights were not altered. His reference to submitting the
decision of the people of South West Africa to the judgment of the
General Assembly cannot be taken as an acknowledgment that the
supervisory functions of the Council of the League had been trans-
ferred to the General Assembly. It was no more than a specific
undertaking to ask the General Assembly for its judgment on this
particular issue. It was obviously a matter which the Assembly
could discuss at the Respondent’s request.

On g February 1946 the General Assembly passed a resolution
which stated, inter alia:

“with respect to Chapters XII and XIII of the Charter, the General
Assembly :

Welcomes the declarations, made by certain States administering
territories now held under mandate, of an intention to negotiate
trusteeship agreements in respect of some of those territories and, in
respect of Transjordan, to establish its independence.

Invites the States administering territories now held under man-
date to undertake practical steps, in concert with the other States
directly concerned, for the implementation of Article 79 of the
Charter (which provides for the conclusion of agreements on the
terms of trusteeship for each territory to be placed under the trustee-
ship system), in order to submit these agreements for approval,
preferably not later than during the second part of the first session
of the General Assembly.”

On 12 February 1946, it passed the following further resolution:

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S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

“TRANSFER OF CERTAIN FUNCTIONS, ACTIVITIES AND ASSETS OF THE
LEAGUE OF NATIONS

I

Functions and powers belonging to the League of Nations under inter-
national agreements

Under various treaties and international conventions, agreements
and other instruments, the League of Nations and its organs
exercise, or may be requested to exercise, numerous functions or
powers for the continuance of which, after the dissolution of the
League, it is, or may be, desirable that the United Nations should
provide.

Certain Members of the United Nations, which are parties to
some of these instruments and are Members of the League of
Nations, have informed the General Assembly that, at the forth-
coming session of the Assembly of the League, they intend to move
a resolution whereby the Members of the League would, so far as
this is necessary, assent and give effect to the steps contemplated
below.

Therefore :

1. The General Assembly reserves the right to decide, after due
examination, not to assume any particular function or power, and
to determine which organ of the United Nations or which specialized
agency brought into relationship with the United Nations should
exercise each particular function or power assumed.

2. The General Assembly records that those Members of the

’ United Nations which are parties to the instruments referred to

310

above assent by this resolution to the steps contemplated below
and express their resolve to use their good offices to secure the co-
operation of the other parties to the instruments so far as this may
be necessary.

3. The General Assembly declares that the United Nations is
willing in principle, and subject to the provisions of this resolution
and of the Charter of the United Nations, to assume the exercise
of certain functions and powers previously entrusted to the League
of Nations, and adopts the following decisions, set forth in A, B, and
C below.

A. Functions pertaining to a Secretariat

B. Functions and Powers of a Technical and Non-Political Char-
actey

Among the instruments referred to at the beginning of this
resolution are some of a technical and non-political character which
contain provisions, relating to the substance of the instruments,
whose due execution is dependent on the exercise, by the League
of Nations or particular organs of the League, of functions or powers
conferred by the instruments. Certain of these instruments are
intimately connected with activities which the United Nations will
or may continue.
626 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

It is necessary, however, to examine carefully which of the organs
of the United Nations or which of the specialized agencies brought
into relationship with the United Nations should, in the future,
exercise the functions and powers in question, in so far as they are
maintained.

Therefore:

The General Assembly is willing, subject to these reservations, to
take the necessary measures to ensure the continued exercise of
these functions and powers, and refers the matter to the Economic
and Social Council.

C. Functions and Powers under Treaties, International Conventions,
Agreements and Other Instruments Having a Political Character

The General Assembly will itself examine, or will submit to the
appropriate organ of the United Nations, any request from the parties
that the United Nations should assume the exercise of functions or
powers entrusted to the League of Nations by treaties, international
conventions, agreements and other instruments having a political
character...”

It will be observed that the statement of general willingness to
-ensure the continued exercise of the League’s functions and powers
was limited to functions and powers of a non-political character.
The supervisory functions and powers of the organs of the League
under the Mandates were clearly political, and the portion of the
resolution under which such powers and functions fall is Part I,
C (3), which required for the assumption of such functions or powers
by the United Nations (a) a request from the parties, and (b) an
examination of that request by the General Assembly or an ap-
propriate organ of the United Nations nominated by the General
Assembly.

In a Dissenting Opinion in the Hearing of Petitions by the Com-
mittee on South West Africa, 1956, I.C.J. 23, at page 65, Judges
Badawi, Basdevant, Hsu Mo, Armand Ugon and Moreno Quintana
remarked:

“Resolution 24 (I) adopted by the General Assembly on Feb-
ruary 12th, 1946, had made provision with regard to the method to
be adopted for the examination of any request ‘that the United
Nations should assume the exercise of functions or powers entrusted
to the League of Nations by treaties, international conventions,
agreements and other instruments having a political character’.
Here appeared the idea of a possible transfer of powers entrusted
to the League of Nations. But the course indicated by that Reso-
lution was not followed. The Union of South Africa has not submitted
to the General Assembly any request that the latter should assume
the ‘powers entrusted’ to the Council of the League of Nations.”

Once again, the significance of these facts is that they are
inconsistent with the suggestion that there must have been an

311
627  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

implied agreement in Article 80 (1) of the Charter or any other
provision thereof that the United Nations would automatically,
without any agreement on the part of the Mandatories, take the
place of or assume the functions of the League, in regard to the
Mandates.

The Assembly of the League assembled for the last time from
8-18 April 1946. On the last-mentioned date it dissolved the League.
It adopted resolutions referring to the transfer of its assets and
non-political functions and, in addition, also passed the following
resolution relating to the Mandates:

“The Assembly:

Recalling that Article 22 of the Covenant applies to certain
territories placed under mandate the principle that the well-being
and development of peoples not yet able to stand alone in the
strenuous conditions of the modern world form a sacred trust of
civilization:

1. Expresses its satisfaction with the manner in which the organs
of the League have performed the functions entrusted to them with
respect to the mandates system and in particular pays tribute to
the work accomplished by the Mandates Commission ;

2. Recalls the role of the League in assisting Iraq to progress from
its status under an ‘A’ mandate to a condition of complete independ-
ence, welcomes the termination of the mandated status of Syria,
the Lebanon, and Transjordan, which have, since the last session
of the Assembly, become independent members of the world com-
munity;

-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 de-
clared in Article 22 of the Covenant of the League;

4. Takes note of the expressed intentions of the members of the
League now administering territories under mandate to continue to
administer them for the well-being and development of the peoples
concerned in accordance with the obligations contained in the respec-
tive mandates until other arrangements have been agreed between
the, ay Nations and the respective mandatory powers.”’ (Italics
added.

To appreciate the significance of this resolution, knowledge of
the events that preceded it and, in particular, of the declarations
of the representatives of Mandatories at this final meeting of the
League, is essential. These events and statements also clearly reveal
that up to that stage there had been no agreement, express or
implied, that the functions of the League relative to Mandates
were to be transferred to the United Nations. The following are
extracts from declarations by Mandatories:

312
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S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

(i) By ae representative of the United Kingdom (on the oth April,
1946):

“The Mandates administered by the United Kingdom were
originally those for Iraq, Palestine, Transjordan, Tanganyika, part
of the Cameroons and part of Togoland. Two of these territories
have already become independent sovereign States, Iraq in 1923,
and Transjordan just the other day in 1946. As for Tanganyika and
Togoland under their mandate, and the Cameroons under their
mandate, His Majesty’s Government in the United Kingdom have
already announced their intention of placing them under the trustee-
ship system of the United Nations, subject to negotiations on
satisfactory terms of trusteeship.

The future of Palestine cannot be decided until the Anglo-
American Committee of Enquiry have rendered their report, but
until the three African territories have actually been placed under
trusteeship and until fresh arrangements have been reached in
regard to Palestine—whatever those arrangements may be—it is
the intention of His Majesty’s Government in the United Kingdom
to continue to administer these territories in accordance with the general
principles of the existing mandates.”’ (Italics added.)

(ii) By the representative of South Africa (on the oth April, 1946).

“Since the last League meeting, new circumstances have arisen
obliging the mandatory Powers to take into review the existing
arrangements for the administration of their mandates. As was fully
explained at the recent United Nations General Assembly in London,
the Union Government have deemed it incumbent upon them to

* consult the peoples of South West Africa, European and non-Euro-

313

pean alike, regarding the form which their own future Government
should take. On the basis of those consultations, and having regard
to the unique circumstances which so signally differentiate South
West Africa—a territory contiguous with the Union—from all other
mandates, it is the intention of the Union Government, at the forth-
coming session of the United Nations General Assembly in New
York, to formulate its case for according South West Africa a status
under which it would be internationally recognised as an integral
part of the Union. As the Assembly will know, it is already admin-
istered under the terms of the Mandate as an integral part of the
Union. In the meantime the Union will continue to administer the
territory scrupulously in accordance with the obligations of the man-
date, for the advancement and promotion of the interests of the inhabit-
ants, as she has done during the past six years when meetings of the
Mandates Commission could not be held.

The disappearance of these organs of the League concerned with
the supervision of mandates, primarily the Mandates Commission
and the League Council, will necessarily preclude complete compliance
with the letter of the mandate. The Union Government will nevertheless
regard the dissolution of the League as in no way diminishing its
obligations under the mandate, which it will continue to discharge
with the full and proper appreciation of its responsibilities until such
629

314

S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

time as other arrangements are agreed upon concerning the future
status of the territory.”’ (Italics added.)

(iii) By the representative of France (on the roth April, 1946):

“The French Government intends to pursue the execution of the
mission entrusted to it by the League of Nations. It considers that it
is in accordance with the spirit of the Charter that this mission
should henceforth be carried out under the regime of trusteeship and
it is ready to examine the terms of an agreement to define this regime
in the case of Togoland and the Cameroons’’

{iv) By the representative of New Zealand (on the 11th April, 1946):

“New Zealand has always strongly supported the establishment
of the International Trusteeship System, and has already declared
its willingness to place the mandated territory of Western Samoa
under trusteeship... New Zealand does not consider that the
dissolution of the League of Nations and, as a consequence, of the
Permanent Mandates Commission will have the effect of diminishing
her obligations to the inhabitants of Western Samoa, or of increasing
her rights in the territory. Until the conclusion of our Trusteeship
Agreement for Western Samoa, therefore, the territory will continue
ta be administered by New Zealand, in accordance with the terms of the
Mandate, for the promotion of the well-being and advancement of the
inhabitants.”’ (Italics added.)

(v) By the Belgian representative (on the 11th April, 1946):

“At the meeting of the General Assembly of the United Nations
in London on January 2oth last, she declared her intention of
entering into negotiations with a view to placing the Territory of
Ruanda-Urundi under the new regime. In pursuance of this intention,
the Belgian Government has prepared a draft agreement setting out
the conditions under which it will administer the territory in ques-
tion.

In the course of the same declaration of January zoth, we ex-
pressed our confidence that the Trusteeship Council would soon come
to occupy in the United Nations Organization the important place
which it deserves. We can only repeat that hope here and give an
assurance that, pending its realisation, Belgium will remain fully
alive to all the obligations devolving on members of the United
Nations under Article 80 of the Charter.”

(vi) By the Australian representative (on the 11th April, 1946):

“The trusteeship system, strictly so called, will apply only to such
territories as are voluntary brought within its scope by individual
trusteeship agreements... After the dissolution of the League of Nations
and the consequent liquidation of the Permanent Mandates Commission,
at will be impossible to continue the mandates system in its entirety.

Notwithstanding this, the Government of Australia does not

‘regard the dissolution of the League as lessening the obligations im-

posed upon it for the protection and advancement of the inhabitants
of the mandated territories, which it regards as having still full force
630  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

and effect. Accordingly, until the coming into force of appropriate
trusteeship agreements under Chapter XII of the Charter, the Gov-
ernment of Australia will continue to administer the present. man-
dated territories, in accordance with the provision of the Mandates,
for the protection and advancement of the inhabitants. In making plans
for the dissolution of the League, the Assembly will very properly
wish to be assured as to the future of the mandated territories, for
the welfare of the peoples of which this League has been responsible.
So far as the Australian territories are concerned, there is full assur-
ance. In due course these territories will be brought under the trustee-
ship system of the United Nations; until then, the ground is covered
not only by the pledge which the Government of Australia has given.
to this Assembly today but also by the explicit international obi-
gations laid down in Chapter XI of the Charter, to which I have referred.
There will be no gap, no interregnum, to be provided for.’’ (Italics added.)

The words ‘‘to which I have referred” referred to a prior state-
ment which included inter alia the following comment relevant
to Chapter XI of the Charter:

“... Amongst other things, each administering authority under that
chapter undertakes to supply to the United Nations information
concerning economic, social and educational conditions in its
dependent territories.”’

If any Member of the League thought that either the Mandate
Declaration, the Covenant of the League or the Charter of the
United Nations contained an implied provision which had the
effect of transferring the functions of the organs of the League to
the organs of the United Nations and, in particular, if Article 80 (1)
of the Charter had been intended to have this effect, one would have
expected the Mandatories or other Members of the League present at
this final meeting of the Assembly of the League to have said so.

The representative for Australia could not have thought it
necessary to refer to Article 73 if he thought that the duty to
account to the Council of the League would automatically be trans-
ferred to the United Nations on the dissolution of the League.

The Respondent’s representative, when saying the following:

“The disappearance of those organs of the League concerned with

the supervision of Mandates, primarily the Mandates Commission

and the League Council, will necessarily preclude complete compli-
ance with the letter of the Mandate’,

would have added that the Mandate contained an implied term or
that Article 80 (1) of the Charter had been intended to mean, that
the organs of the United Nations would be substituted for the

315
631  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

organs of the League. But he did not say so. On the contrary, he
said that the Respondent would continue to administer the territory
“scrupulously in accordance with the obligations of the Mandate
for the advancement and promotion of the interests of the inhabitants,
as she has done during the past six years when meetings of the Man-
dates Commission could not be held”. (Italics added.) During this
period referred to by the Respondent, Article 6 was not applied.
Nor was Article 7 invoked. There was no suggestion that the super-
visory functions of the Council of the League were being transferred
to any organ of the United Nations. Similarly, when the represen-
tative of the United Kingdom stated that it was the intention of His
Majesty’s Government ‘to continue to administer these territories
in accordance with the general principles of the existing Mandates’,
he did not suggest that Great Britain was prepared to accept
the supervision of the United Nations in the place of the Council
of the League. This is not only implicit in the words used by the
representatives, but also emerges clearly from the report of. the
United Nations Special Committee on Palestine, which is fully dealt
with infra. À portion of the report reads as follows:

“The mandatory Power, in the absence of the League and its
Permanent Mandates Commission, had no international authority to
which tt might submit reports and generally account for the exercise of tts
responsibilities in accordance with the terms of the Mandate. Having
this in mind, at the final session of the League Assembly the United
Kingdom representative declared that Palestine would be administered
‘in accordance with the general principles’ of the existing Mandate until
‘fresh arrangements had been reached’.’’ (Italics added.)

The representative of China, Dr. Liang, appreciated that the
aforesaid declarations of intent by the representatives ot the
Respondent and the United Kingdom did not embrace any under-
taking to accept the supervision of the United Nations in the
place of the League, and accordingly on afternoon of 9 April 1946
wished to propose for discussion the following draft resolution:

“The Assembly :

Considering that the Trusteeship Council of the United Nations
has not yet been constituted and that all mandated territories under
the League have not been transformed into territories under trustee-
ship;

Considering that the League functions as supervisory organ for
mandated territories should be transferred to the United Nations
after the dissolution of the League in order to avoid a period of
interregnum in the supervision of the mandated territories;

Recommends that the mandatory powers as well as those admin-
istering ex-enemy mandated territories shall continue to submit
annual reports on these territories to the United Nations and to
submit to inspection by the same until the trusteeship council shall
have been constituted.”’
632  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

This resolution was, however, ruled. not relevant to the items
under discussion and was not proceeded with. Informal discussions
followed, and Dr. Liang eventually introduced a new draft which
differed very materially from the one he originally sought to
introduce. This new draft was unanimously agreed to by the
League Assembly. In proposing the new draft, Dr. Liang

“recalled that he had already drawn the attention of the Committee
to the complicated problems arising in regard to mandates from the
transfer of functions from the League to the United Nations. The
United Nations Charter in Chapters XII and XIII established a
system of trusteeship based largely upon the principles of the
mandates system, but the functions of the League in that respect
were not transferred automatically to the United Nations. The Assem-
bly should therefore take steps to secure the continued application
of the principles of the mandates system. As Professor Bailey had
pointed out to the Assembly on the previous day, the League would
wish to be assured as to the future of mandated territories. The matter
had also been referred to by Lord Cecil and other delegates.

It was gratifying to the Chinese delegation, as representing a
country which had always stood for the principle of trusteeship,
that all the Mandatory Powers had announced theiy intention to
administer the territories under their control in accordance with
their obligations under the mandates system until other arrangements
were agreed upon. It was to be hoped that the future arrangements
to be made with regard to these territories would apply in full the
principle of trusteeship underlying the mandates system.

The Chinese delegation had pleasure in presenting the draft
resolution now before the Committee, so that the question could be
discussed by the Assembly in a concrete form and the position of the
League clarified.”’ (Italics added.)

The delegate for Egypt abstained from voting, as the view of
his Government was that the dissolution of the League terminated
the Mandates.

The above facts again clearly reveal that there could not have
been any understanding that the Covenant, the Mandate Declara-
tions or Article 80 (1) of the Charter impliedly provided that the
functions of the organs of the League under the Mandate instru-
ments would be transferred to the United Nations until trusteeship
agreements were introduced, or that the Mandate instruments were
being amended in any other respect.

It has been suggested that the aforesaid resolution of the As-
sembly of the League, relative to the Mandates, in effect constitutes
a tacit agreement in terms whereof the Mandatories, including
the Respondent, agreed with the other Members of the League
that the Mandate Declarations would be amended by substituting
ex-Members of the League or Members of the United Nations in the
compromissory clauses for Members of the League, and to the trans-
fer of the supervisory functions of the League to the United Nations.

317
633  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

This resolution, however, particularly if it is considered against the
background set out above, clearly reveals that there existed no
such tacit agreement.

The suggestion that the resolution was adopted “with a view of
averting any objections that might be derived from the form of
the words ‘another Member of the League of Nations’ ”’ is the 1962
product of a fruitful imagination. It has no factual basis.

The wording of the resolution shows that there was no intention
to record therein any agreement whatever. It “notes” that “Chap-
ters XI, XII and XIII of the Charter of the United Nations embody
principles corresponding to those declared in Article 22 of the Coven-
ant of the League”. It ‘‘takes note” of the expressed intentions of
the Members of the League “‘to administer them for the well-being
and development of the peoples concerned in accordance with the
obligations contained in the respective Mandates’’. If it was the
intention of the parties to agree that the terms of the Mandate
Declarations should be amended in the important respects suggest-
ed, the resolution would have said so. It is inconceivable that the
trained lawyers and the skilled draftsmen at the disposal of the
League would have employed the wording they did had the inten-
tion been to amend the provisions of the Mandates.

Not one of the Mandatories had made a declaration to the effect
that the procedural provisions of the Mandate Declarations would
continue to apply, or that they would be amended in any particular
manner so as to make their fulfilment possible. The United Kingdom
in its declaration had reserved its future intentions in regard to
Palestine. The Respondent made it clear that it would continue to
administer the territory as it had done during the “past six years”.
During those years the League was moribund and the Permanent
Mandates Commission did not function. The League Assembly was
aware that the United Nations had resolved that it would consider
assuming the powers of the League in regard to the Mandates only
at a request from the interested parties. The Chinese representative
realized that in the absence of a request by the Mandatory the
functions of the League could not be assumed by the United Nations.
This he wanted to avoid when he sought to propose his first draft,
in which the view was expressed that the League functions as
supervisory organ for the Mandated territories should be transferred
to the United Nations. This view was not only inconsistent with
the views of the Members of the United Nations who had been
parties to the aforesaid resolution of the United Nations, but also
in conflict with the clear attitudes of at least two of the Mandatories
who were present at the dissolution of the League. That such a
resolution could not receive the unanimous support of the Members
of the League seems obvious.

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634  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

If it had been the intention to amend the Mandates in the
respects suggested, why was the representative of Egypt not told
when he declined to vote for the resolution on the ground that, in
his view, the dissolution of the League terminated the Mandates?

To suggest that the parties had deliberately decided to express
in tacit terms what had been proposed in the first Chinese draft
resolution in express terms is absurd.

The resolution can clearly only reflect what the: declarations
by the Mandatories intended to convey, and these declarations
made no reference to the procedural provisions of tne Mandates
Declarations but were confired to the administrative obligations
relating to the well-being and development of the peoples coucerned.

Only the Council of the League and the Mandatories concerned
could have amended the terms of the Mandates under the provisions
of Article 7 of the Mandate Declaration for South West Africa and
similar provisions appearing in all the other Mandate Declarations.
. Had the members of the Council (or the Assembly acting on behalf
of the Council) intended to act in terms of these provisions, this fact
‘ would have appeared in the resolution.

It must be borne in mind that a decision of the Council of the
League had to be unanimous, and this means that before such a tacit
intention can be ascribed to the Council, one must be satisfied that
every member of the Council who voted for the resolution must
have intended it to constitute an agreement amending the terms
of the Mandate Declarations.

The representative of Australia had made it clear in his Declara-
tion that the view of Australia was that Article 73 of the Charter
ofthe United Nations applied to the Mandates. This view was ap-
parently shared by the Members of the League, hence the reference
to Chapter XI in the resolution. It does not matter whether the
representative of Australia or the Members of the League were right
or wrong in thinking that Article 73 applied to the Mandated
territories. The fact is that they thought so, and this has an impor-
tant bearing on their probable intentions in regard to the suggested
amendments of the Mandate Declarations. If Chapter XI applies
(Article 73 is one of the two articles of Chapter XI) to the Mandated
territories, and if the resolution of the League was intended to
amend the Mandate Declarations in the respects suggested, it
means that the Members of the League intended that after the
dissolution of the League there would be in operation two over-
lapping’sacred trusts in respect of each Mandated territory, super-
vised by the same body, to which each Mandatory had to render
two reports, that different procedures had to be followed in respect
of each, and that this Court may have compulsory jurisdiction in
regard to one, but not in regard to the other. Such an absurd result
could not possibly have been contemplated.

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635 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

I have already made it clear that in this matter the consent of
the Court’s jurisdiction must be embodied in a treaty or conven-
tion.

This Court can therefore only have regard to the resolution of
the League for the purposes of determining jurisdiction if it is a
treaty or convention in force. I fail to see how an implied term of
a resolution such as the one in question can ever be regarded as a
treaty or convention; but even if it is, it cannot be invoked in this
Court inasmuch as Article 102 of the Charter provides that no
treaty or international agreement entered into after the Charter
came into force may be invoked before any’ organ of the United
Nations if it has not been registered in accordance with the provi-
sions of paragraph (1) of Article 102. The aforesaid resolution of the
League has not been registered. I may add that several treaties
entered into in pursuance of the other resolutions of the League
passed at its dissolution have been duly registered. The inference
that the parties did not consider the resolution to constitute a
‘treaty or international agreement is inescapable.

Neither before nor since the dissolution of the League has
the Respondent been a party to any agreement in terms whereof
any of the provisions of the Mandate instrument were amended.
At no time did the Respondent request the United Nations to
assume any function or power of the League under the Mandates,
nor.did the General Assembly of the United Nations or any organ
nominated by it ever consider such a request. The Respondent
did not at any time admit that the United Nations had taken over
the functions of the League; on the contrary, it has consistently
denied that the United Nations had been substituted for the
League.

Many of the founder Members of the United Nations who attended
the San Francisco Conference and the dissolution of the League
have expressed views which reveal that they were unaware of
any common intention or tacit agreement that the United Nations
was being substituted for the League in the Mandate instruments
or that the obligation to report to the Council of the League of
Nations had been amended so that the report now has to be made
to the United Nations. How can such a common intention be infer-
red when it does not appear from the words of the instruments
and when so many parties to the instruments were unaware
thereof?

The trusteeship agreement for the Mandated territory of Narau
was entered into as late as November 1947, i.e. more than a year
after the League of Nations had ceased to exist. The United
Kingdom withdrew from the administration of Palestine in May
1948, more than two years after the dissolution of the League,
yet no reports were submitted to the United Nations in respect of

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either territory during the aforesaid periods. If there had been
the suggested tacit agreement, one would have expected reference
to have been made thereto, when no reports were forthcoming
from the Mandatories of the aforesaid territories. It is common
cause that not a single State ever suggested that such reports
should be submitted.

A study of the history of the Palestine Mandate reveals that
Members of the United Nations could not have had any intention
of substituting the United Nations in the place of the League in
Mandates. The resolution of the League Assembly applied as much
to Palestine as it applied to South West Africa; Article 80 (1) of
the Charter of the United Nations applied as much to Palestine as
it applied to South West Africa. A United Nations Special Com-
mittee, consisting of eleven Members, was appointed to examine
the case of Palestine. These members were Australia, Canada,
’ Czechoslovakia, Guatemala, India, Iran, Netherlands, Peru, Sweden,
Uruguay and Yugoslavia. In its report dated 3 September 1947,
the Committee clearly expressed its view that there was on the
dissolution of the League no supervisory authority in respect of
the administration of Palestine, and that no obligation on the part
of the Mandatory to submit to any supervision existed. This appears
from the following extracts from the report:

“The Mandatory Power, in the absence of the League and its

Permanent Mandates Commission, had no international authority

. to which it might submit reports and generally account for the exer-
cise of its responsibilities in accordance with the terms of the
Mandate.”’

“The international trusteeship system, however, has not auto-
matically taken over the functions of the MandatesSystem withregard
to mandated territories. Territories can be placed under trusteeship
only by means of trusteeship agreements approved by a two-thirds
majority of the General Assembly. The most the Mandatory could
now do, therefore, in the event of the continuation of the Mandate,
would be to carry out its administration in the spirit of the Mandate
without being able to discharge its international obligations in
accordance with the intent of the Mandates System.”

The above report on Palestine contained, inter alia, also a special
note by Sir Abdur Rahman, the representative of India, which
contained the following passage:

“Moreover, the international machinery in the form of the Per-
manent Mandates Commission which had been created for the
purpose of scrutinising the actions of the Mandatory Powers, and to
which they were bound to submit annual reports has, along with
the League of Nations, ceased to exist. There are no means by which
the international obligations in regard to Mandates can be discharged
by the United Nations.’’ (Italics added.)

I have already pointed out that until 1948 not a single Member
of the United Nations or a single ex-Member of the League contend-

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ed that the organs of the United Nations had been substituted for
the organs of the League in respect of the Mandates. No less than
29 States expressed views in conformity with the Respondent’s
contention that the United Nations has no supervisory authority
in respect of South West Africa. I quote a few examples:

On 25 September 1947, Mr. Lui Chieh of China expressed the
following view in the Fourth Committee:

“The only choice lay between trusteeship and the grant of
independence. Article 80, paragraph 2, of the Charter further proved
the obligatory character of the (the trusteeship) system... If the
Union of South Africa placed South West Africa under trusteeship,
it would not be deprived of the administration of the territory;
and the only change would be the placing of that administration under
international supervision.”’ (Italics added.)

Again, on 1 November 1947, he made the following statement in
the General Assembly:

“We are told that the Union of South Africa would administer
the Territory of South West Africa in the spirit of the Mandate of the
League of Nations. I do not doubt the sincerity of this statement on
the part of the Union of South Africa, but we all know that the
mandate system has ceased to exist and that the Trusteeship System
has been established. Would it not be more desirable to administer
the Territory in question under a living system than under the shadow
of a ghost system?”’

On the same day, Mr. Yepes of Colombia made the following
remarks in the General Assembly:

‘... on whose behalf would the mandate of the old League of Nations
be exercised?

It could certainly not be the League of Nations, for it has ceased
to exist, and the mandate could not be exercised on behalf of a dead
institution. In civil law, as we all know, power of Attorney ceases
upon the death of the principal. The same idea extends, by analogy,
to international law. We can conclude that, since the League of
Nations is dead, mandates exercised under its authority have also
lapsed, and the territories concerned must fall under the Trusteeship
System established by Article 77 of the Charter.”

On 26 September 1947, the representative of Cuba made the
following statement in the Fourth Committee:

Mr. Meyer: “... the information submitted by the Government
of the Union of South Africa with regard to South West Africa
could not be examined since South West Africa was neither a
Trust Territory nor a Non-Self-Governing Territory”

In December 1947, India submitted a draft resolution which
contained the following statement:

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638 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK}

“Whereas the territory of South West Africa, though not self-
governing, is at present outside the control and supervision of the
United Nations.”

On 12 December 1947, Mr. Gerig of the United States of America
expressed the following view in the Trusteeship Council:

“It was said here earlier this afternoon, and I did not hear any
member object, that while we all hope—my delegation as much as
any delegation feels that way—that there will be a trusteeship
agreement for this territory, we do not, in the absence of a trusteeship
agreement, have supervisory functions over this territory. Therefore, I
do not think we ought to imply that we do have supervisory func-
tions to ensure that the Union Government discharges its duties under
the present mandate, admitting that it exists.’’ (Italics added.)

On 19 March 1948, the United States representative expressed
the following view in the Security Council:

“The United Nations does not automatically fall heir to the re-
sponsibilities either of the League of Nations or of the Mandatory
Power in respect of the Palestine Mandate. The records seem to us
entirely clear that the United Nations did not take over the League
of Nations Mandates System.”

During the years following the establishment of the United
Nations, the Respondent’s representatives repeatedly asserted that
the supervisory functions of the organs of the League had not been
transferred to the United Nations, and until 1948 not a single State
contradicted this assertion. Thus, for example, on 25 September
1947, in the Fourth Committee, Mr. Lawrence, representing the
Respondent, said:

“In respect of its Administration of South’ West Africa, that
Government {of the Union of South Africa] would maintain the
status quo in the spirit of the Mandate. It would not submit a trustee-
ship agreement, but would transmit information annually. Infor-

mation relating to 1946 was now in the hands of the Secretary-
General.”’ |

And two days later, also in the Fourth Committee, he amplified
his remarks as follows:

“Tn reply to the request made by the Danish representative at the
31st meeting regarding clarification of document A/334, Mr. Law-
rence stated that the Mandate gave certain powers and imposed
certain obligations. The Government of the Union of South Africa
had full powers of administration over South West Africa, and it
proposed to continue to exercise them, just asit would continue to ful-
fil its obligations under the Mandate to promote the moral and mate-
rial well-being of the population and to advance social progress. The
Union of South Africa did not claim that South West Africa was a
colony, but it was willing to submit annual reports like those required

-for the Non-Self-Governing Territories under Article 73 (¢).

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639 S. W. AFRICA CASES (Diss. OPIN. OF JUDGE VAN WYK)

The right to petition had ceased to exist with the disappearance
of the League of Nations, the authority to which petitions could be
addressed. In the absence of a trusteeship agreement, the United
Nations had no jurisdiction over South West Africa and therefore
no right to receive petitions.”

On 1 November 1947, in the General Assembly, Mr. Lawrence
again emphasized that reports rendered by the Union to the United
Nations were being rendered on the basis that the United Nations
has no supervisory jurisdiction in respect of the territory. He is
reported to have said:

“Tn addition, the Government of the Union of South Africa has
expressed its readiness to submit annual reports for the information
of the United Nations. That undertaking stands.

Although these reports, if accepted, will be rendered on the basis
that the United Nations has no supervisory jurisdiction in respect of
this Territory, they will serve to keep the United Nations informed in
much the same way as they will be kept informed in relation to Non-
Self-Governing Territories under Article 73 (e) of the Charter.”

These assertions were not challerged.

One therefore finds that, not only was nothing said in the Charter
of the United Nations or at the time of its drafting, to the effect
that the Council of the League was beirg superseded in the Mandate
by an organ of the United Nations, or that the supervisory functions
of the Council of the Lee gue were being transferred to the United
Nations, but also that nothing was said to this effect prior to the
dissolution of the League, at the dissolution of the League, or during
the years immediately followirg the dissolution of the League. On
the contrary, one finds that the declarations by the Respondent’s
representatives, and the representatives of other Members of the
United Nations during this time, reveal that it was not assumed
that the organs of the United Nations would automatically become
heir to the powers and functions of the organs of the League in the
Mandate instruments.

The history of the Preparatory Commission, the history of the
dissolution of the League, the report of the Palestine Commission,
the statements by the Respondent and other Members of the United
Nations in a variety of circumstances and situations, and within a
comparatively short time after the San Francisco Conference, when
the events of what happened at the Conference were still reasonably
fresh in their memories, effectively negative the suggestion that
there was a tacit agreement between Members of the United Nations
and the Mandatories that the organs of the United Nations would
be substituted for the organs of the League relative to the super-
vision of the Mandates.

It should be noted that at no stage was it even suggested that
the Mandate instruments were being amended by substituting ex-

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640  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

membership of the League or membership of the United Nations
for membership in the League of Nations in the provisions of the
Mandates Declarations. It was not mentioned at the San Francisco
Conference, it was not mentioned by the Preparatory Committee,
it was not mentioned at the dissolution of the League. During the
years following immediately upon the dissclution of the League
not a single State expressed the view that it was under the im-
pression that such an amendment had been brought about.

The above considerations compel me to conclude that those
provisions of the Mandates which depended for their fulfilment on
the existence of the League of Nations were not impliedly amended
in any respect, and accordingly ceased to apply on the demise of
the League; in any event that the compromissory clause in Article
7 was not amended in any way, and accordingly no longer applies.

The conclusion to which I have come is in conflict with parts of
the Advisory Opinion of this Court given in 1050 in International
Status of South West Africa, 7.C.]. Reports 1950, p. 128. It must
therefore be carefully examined. Although the Court’s finding in
regard to Article 6 is not directly relevant to the issue now being
considered, it is difficult owing to the overlapping of reasons to
confine oneself to the Court’s reasons for its conclusion in regard to
Article 7 without reference to the decision in regard to Article 6.

The conclusion of the majority of the Court in regard to Articles 6
and 7 of the Mandate is to be found in the following extracts from
the Opinion:

“Tt follows from what is said above that South West Africa is still
to be considered as a territory held under the Mandate of December
17th, 1920. The degree of supervision to be exercised by the General
Assembly should not therefore exceed that which applied under the
Mandates System, and should conform as far as possible to the proce-
dure followed in this respect by the Council of the League of Nations.
These observations are particularly applicable to annual reports and
petitions.

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 application of the provisions
of the Mandate, if not settled by negotiation, should be submitted
to the Permanent Court of International Justice. Having regard to
Article 37 of the Statute of the International Court of Justice, and
Article 80, paragraph 1, of the Charter, the Court is of opinion that
this clause in the Mandate is still in force and that, therefore, the
Union of South Africa is under an obligation to accept the compul-
sory jurisdiction of the Court according to those provisions.”

Before dealing with the specific reasons advanced in the majority
Opinion for the aforesaid conclusions, some general remarks in the
Opinion preceding these reasons should be commented on:

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641  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

“The object of the Mandate regulated by international rules far
exceeded that of contractual relations regulated by international law.
The Mandate was created, in the interest of the inhabitants of the
territory, and of humanity in general, as an international institution
with an international object—a sacred trust of civilization. It is
therefore not possible to draw any conclusion by analogy from the
notions of mandate in national law or from any other legal conception
of that law. The international rules regulating the Mandate consti-
tuted an international status for the Territory recognized by all the
Members of the League of Nations, including the Union of South
Africa.”

While it is correct to say that the notions of mandate in mu-
nicipal law cannot be applied in the interpretation of the provisions
of the Mandate instruments, this is no reason for ignoring the fact
that Article 22 of the Covenant of the League is a term of an
agreement, and that the rights and obligations created thereby
must be determined in accordance with the provisions of the inter-
national law relating to the interpretation of treaties and conven-
tions, that is, this Court must determine as accurately as possible
the true common intention of all the parties concerned, in ac-
cordance with the appropriate rules of construction. Rosenne, op.
cit., page 318, crisply states the principle as follows:

“Treaty interpretation attempts to elucidate the combined in-
tention of two or more signatories.”’

It has been shown that Article 22 of the Covenant must be inter-
preted with due regard to all its provisions and to all the relevant
facts, and that the detailed obligations of the Respondent recorded
therein cannot be amended by this Court by reason of the general
principles stated therein; in particular, this Court has no power to
provide for its own compulsory jurisdiction.

If, therefore, the above quoted statement of the Court was
intended to suggest that the obligations of the Respondent exceeded
those it intended to undertake when agreeing to Article 22 of the
Covenant, it cannot be accepted as correct. Nor can the Mandate
Declaration be interpreted as meaning that the Respondent had
agreed to accept the supervision of another international body on
the dissolution of the League, or that it had agreed that the words
“Member of the League” in Article 7 could be amended by this
Court to read “Members of the United Nations” or ‘‘ex-Members
of the League”.

On page 133 the Opinion states, “the authority which the Union
Government exercises over the territory is based on the Mandate”.
To this one should add that, similarly, the Respondent’s obligations
are based on the Mandate.

The Opinion then proceeds:

“Tf the Mandate lapsed, as the Union Government contends, the
latter’s authority would equallv have lapsed. To retain the rights

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642  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

derived from the Mandate and to deny the obligations thereunder
could not be justified.”

Inasmuch as the Respondent’s attitude in 1950 was that the
Mandate had lapsed, the above remark was relevant to show that
this attitude was inconsistent with any claim that the Respondent
still had rights which flowed from the Mandate. It however has no
relevance to the question whether Article 6 or 7 still applies. In
any event, if in law Articles 6 and 7 no longer apply, and if the effect
thereof is that Respondent’s rights under the Mandate have termi-
nated, the fact that Respondent still claims these rights cannot
revive Articles 6 and 7. If the whole of the Mandate has lapsed,
Article 7 no longer applies; if Articles 1-6 or 1-5 are still in force, it
does not follow that the compromissory clause in Article 7 still
applies in the sense that it is capable of being nvoked. As I have
already indicated, the compromissory clause of Article 7 is clearly
not essential for the existence of the other provisions.

The Opinion then proceeds:

“These international obligations, assumed by the Union of South
Africa, were of two kinds. One kind was directly related to the admin-
istration of the Territory, and corresponded to the sacred trust of
civilization referred to in Article 22 of the Covenant. The other related
to the machinery for implementation, and was closely linked to the
supervision and control of the League. It corresponded to the
‘securities for the performance of this trust’ referred +> in the same
article.”

If this statement was intended to mean that the provisions of
Article 7 of the Mandate which provide that any Member of the
League of Nations could institute proceedings against the Respon-
dent in the event of a dispute relating to the interpretation or
application of the provisions of the Mandate was one of the securi-
ties referred to in Article 22, it is incorrect. I have already pointed
out, when dealing with the provisions of Article 22, that this Article
required the application of the principle that securities for the per-
formance of the sacred trust were to be embodied in the Covenant,
and that no provision in regard to compulsory jurisdiction relative
to the Mandates was embodied in the Covenant. If this Court were
to hold that the compulsory jurisdiction provided for in Article 7
of the Mandate Declaration corresponds to the securities “for the
performance of this trust referred to in Article 22’’, it would be
treating the words “should be embodied in this Covenant” as
meaningless. |

The Opinion then proceeds:

“The first-mentioned group of obligations are defined in Article 22
of the Covenant and in Articles 2 to 5 of the Mandate. The Union
undertook the general obligation to promote to the utmost the mate-

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643  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

rial and moral well-being and the social progress of the inhabitants.
It assumed particular obligations relating to slave trade, forced
labour, .traffic in arms and ammunition, intoxicating spirits and
beverages, military training and establishments, as well as obli-
gations relating to freedom of conscience and free exercise of worship,
including special obligations with regard to missionaries.

These obligations represent the very essence of the sacred trust
of civilization. Their raison 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 popu-
lation to have the Territory administered in accordance with these
rules depend thereon.”’

It seems clear that the learned judges must have overlooked, just
as Counsel in the present matter apparently overlooked, the fact
that Article 5 of the Mandate Declaration contains, inter alia, the
following provision:

“The Mandatory ... shall allow all missionaries, nationals of any
State Member of the League of Nations, to enter into, travel and
reside in the territory for the purpose of prosecuting their calling’,

and that, unlike the other provisions of Articles 2 to 5, this provision
depended on the existence of the League for its fulfilment. In this
respect this provision should have been classified with Articles 6
and 7.

The first reason advanced by the Court for its finding that the
supervisory functions of the League with regard to mandated ter-
ritories not placed under the new Trusteeship System were trans-
ferred to the United Nations is the following (page 136):

“The obligation incumbent upon a mandatory State to accept
international supervision and to submit reports is an important
part of the Mandates System. When the authors of the Covenant
created this system, they considered that the effective performance
of the sacred trust of civilization by the mandatory Powers required
that the administration of mandated territories should be subject
to international supervision. The authors of the Charter had in
mind the same necessity when they organized an International
Trusteeship System. The necessity for supervision continues to exist
despite the disappearance of the supervisory organ under the Man-
dates System. It cannot be admitted that the obligation to submit
to supervision has disappeared merely because the supervisory organ
had ceased to exist, when the United Nations has another inter-
national organ performing similar, though not identical, supervisory
functions.”

It is not clear on what principles the above reasoning is based.
The Court apparently equated the supervisory functions of the

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644 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

Council of the League to “international supervision”, and similarly
equated the supervisory functions under the trusteeship system
to “international supervision”, then found that the necessity for
“international supervision” remained after dissolution of the League
and concluded that, therefore, the one “international supervision’’
must be substituted for the other “international supervision’’.
This approach ignores the basic rule of construction that one must
have regard to the intention of the parties. It in any event ignores
the important difference between the League and the United Na-
tions, the historical facts relating to these institutions and, above
all, the plain meaning of the provisions of therespective instruments.

There are no express provisions in the Covenant, the Mandate
or the Charter providing for the substitution of any organ of the
United Nations for the Council of the League. The Court’s conclusion
could therefore only have been based on what it considered were
the implied provisions of the Covenant and/or the Mandate and/or
the Charter. I have dealt in great detail with these instruments and
I think I have shown conclusively that no such implied provisions
are to be found in any of them.

I have already indicated that Article 22 of the Covenant and
Article 6 of the Mandate did not provide for “international super-
vision”; they provided for an annual report by the Mandatory in
reference to the territory committed to its charge, to be rendered
to the Council of the League of Nations, and for a permanent com-
mission to receive and examine such reports, and to advise the
Council of the League on all matters relating to observance of
the Mandate. There is no justification for imputing to the States
concerned an intention of contracting on the basis that on the disso-
lution of the League, the supervisory functions of the organs of
the League would be transferred to the organs of another interna-
tional organization performing similar functions but differently
constituted. Neither the words of Article 22 of the Covenant and
Article 6 of the Mandate, nor the circumstances under which these
instruments were entered into justify such an inference. In fact,
it is clear that had such a term been suggested, it would not have
been agreed to by the Mandatories. The subsequent conduct of
the parties clearly reveals that no such intention existed. To sub-
stitute an obligation to accept the supervision of an organ of the
United Nations for an obligation to accept the supervision of the
Council of the League is to amend and increase the obligation
undertaken by the Respondent. It would amount to legislation
and this Court has no legislative powers.

It is correct to say that the authors of the Charter had in mind
supervision of territories placed under trusteeship agreements by
organs of the United Nations, but it is also clear that the intention
was that this supervision would only take place after trusteeship
agreements had been entered into. The fact then that the Covenant

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645  S. W. AFRICA CASES (DISS. OPIN. OF JULGE VAN WYK)

provided for supervision of Mandates by the Council of the League
and the Permanent Commission, and that the Charter provides
for supervision by the Trusteeship Council, the General Assembly
and the Security Council after mandated territories had been
brought under the International Trusteeship System can, however,
not justify an inference that therefore an obligation to submit to
supervision of an organ of the United Nations rests upon the man-
datories after the supervisory organs of the League had ceased
to exist, even though no trusteeship agreement has been entered
into. As already indicated, neither the express provisions of the
Charter, nor the relevant circumstances justify an inference that
it was the intention to transfer the supervisory functions of the
organs of the League to the organs of the United Nations.

If Article 73 of the Charter does not apply to mandated territories,
it may be said that it would have been desirable that provision
should have been made for supervision of the Mandates by an
organ of the United Nations after the dissolution of the League,
and until trusteeship agreements were entered into, but this is no
justification for reading an implied provision to this effect into
the Charter. It is the duty of this Court to interpret treaties,
not to revise them. To say that in such a situation international
law refuses to acknowledge that no legal provision for international
supervision exists and that this Court is therefore entitled to nomi-
nate an organ of an international organization as a substitute
for the organ that has disappeared, is to propound a new rule for
which no legal basis exists.

The above conclusion of the Court is even more startling when
it is borne in mind that the Court found that this unexpressed
term whereby organs of the United Nations were substituted for
the organs of the League was qualified in several respects, viz.,
this supervision should not exceed that which applied under the
Mandate System, and should conform as far as possible to the pro-
cedure followed by the Council of the League of Nations. The
difficulty experienced by the Members of this Court in 1955 and
1956 in interpreting this implied provision is in itself a strong
indication that the requisite common intention to contract on the
basis of such a term never existed, and should not be inferred.

The above reason is followed. by the following:

“These general considerations are confirmed by Article 80,
paragraph 1, of the Charter, as this clause has been interpreted above.
It purports to safeguard, not only the rights of States, but also the
rights of the peoples of mandated territories until Trusteeship
Agreements are concluded. The purpose must have been to provide
a real protection for those rights; but no such rights of the peoples
could be effectively safeguarded without international supervision
and a duty to render reports to a supervisory organ.”

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646 8. W. AFRICA CASES (DISS, OPIN. OF JUDGE VAN WYK)

In another passage, when dealing with the question whether
the group of obligations contained in Articles 2 and 5 of the Mandate
(which the Court held did not depend for their fulfilment on the
existence of the League) came to an end on the dissolution of the
League, the Court said at page 133:

“This view is confirmed by Article 80, paragraph x, of the Charter,
which maintains the rights of States and peoples and the terms of
existing international instruments until the territories in question
are placed under the Trusteeship System. It is true that this pro-
vision only says that nothing in Chapter XII shall be construed to
alter the rights of States or peoples or the terms of existing inter-
national instruments. But—as far as mandated territories are
concerned, to which paragraph 2 of this article refers—this provi-
sion presupposes that the rights of States and peoples shall not
lapse automatically on the dissolution of the League of Nations.
It obviously was the intention to safeguard the rights of States and
peoples under all circumstances and in all respects, until each
territory should be placed under the Trusteeship System.”

The true effect of the aforesaid statements of the Court seems
to be that it found that Article 80 (1) impliedly amended the pro-
visions of the Mandates, so that all their provisions should conti-
nue to apply, but the specific nature of these amendments has not
been indicated. However, as stated above, Article 6 of the Mandate
could only apply after the dissolution of the League if one or other
organ of the United Nations was substituted for the organs of the
League, and that Article 7 could only apply if ex-Membership of the
League or Membership of the United Nations was substituted for
Membership of the League. I shall assume that the Court intended
to convey that it thought that these amendments were impliedly
brought about by Article 80 (x).

There is clearly no justification for reading any such implied
terms into Article 80 (x). There is nothing.in the Article to suggest
that the parties must have contracted on the basis of such amend-
ments. On the contrary, the suggested construction would be in
direct conflict with the clear and express injuction in the Article
that it shall not be construed as altering in any manner the terms
of the Mandates.

Article 80 (1) clearly does not purport to ‘‘maintain’’ or “‘safe-
guard” anything against something not contained in Chapter XII
of the Charter.

A finding that Articles 6 and 7 ceased to apply on the dissolution
of the League does not in any way conflict with the provision of
Article 80 (1). The “rights” of the peoples of South West Africa did
not include the continued application of Articles 6 and 7 of the
Mandate after the demise of the organization on which these articles
depended for their fulfilment.

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647  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

There can be no doubt that the parties to the Charter would
have used positive terms had they intended that the provisions
of the Mandates would be amended so that they could remain
effective under all circumstances and in all respects until each
territory was placed under the Trusteeship System; they would
not have used language incapable of having this meaning.

If regard is had to the history of the Charter, there is even less
justification for the assumption by the Court that Article 80 (x)
presupposes that none of the provisions of the Mandates would
cease to apply on the dissolution of the League. The relevant facts,
such as the travaux préparatoires, including statements by Re-
spondent’s representative at the San Francisco Conference, the
subsequent conduct of the parties including statements on behalf
of the Respondent, the recommendations of the Preparatory
Commission, the resolutions of the United Nations, the statements
and resolutions at the dissolution of the League, the report of
the Palestine Commission and the numerous statements of Members
of the United Nations during the years 1946, 1947 and 1948 clearly
reveal that no such common intention existed.

In dealing with Article 80 (x) Sir Arnold McNair in his Separate
Opinion said, at p. 160:

“A second contention was based on the expression occurring in
Article 80, paragraph 1, of the Charter that ‘nothing in this Chapter
[XII] shall be construed in or of itself to alter in any manner the
rights whatsoever of any States or peoples or the terms of existing
international instruments to which Members of the United Nations
may respectively be parties’. But the cause of the lapse of the super-
vision of the League and of Article 6 of the Mandate is not anything
contained in Chapter XII of the Charter but is the dissolution of
the League, so that it is difficult to see the relevance of this Article.”

The legal effect of Article 80 (1) is very aptly stated by Mr.
Joseph Nisot in an article on the Advisory Opinion of the Inter-
national Court of Justice on the International Status of South
West Africa (South African Law Journal), Vol. 68, Part III (August

1951), pp. 278-279:

“The only purpose of the Article is to prevent Chapter XII of
the Charter from being construed as in any manner affecting or
altering the rights whatsoever of States and peoples, as they stand
pending the conclusion of trusteeship agreements. Such rights draw
their judicial life from the instruments which created them; they
remain valid in so far as the latter are themselves still valid. If
they are maintained, it is by virtue of those instruments, not by
virtue of Article 80, which confines itself to providing that the rights
of States and peoples—whatever they may be and to whatever
extent may subsist—are left untouched by Chapter XII.

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648 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

These rights, the Court holds, continue to exist, since they have
been maintained by Article 80. But even supposing it did maintain
anything, Article 80 could only maintain whatever existed. It could
neither resurrect extinct nor create new ones.

Now, what, in actuality, were the rights derived by peoples from
the Mandate and from Article 22 of the Covenant? They were not
rights to the benefit of abstract supervision and control. They con-
sisted of the right to have the administration supervised and con-
trolled by the Council of the League of Nations, and, in particular,
the right to ensure that annuai reports were rendered by the
mandatory Power to the Council of the League of Nations, as it was,
and the right to send petitions to the Secretariat of the League of
Nations. What has become of: these rights? They have necessarily
disappeared as a result of the disappearance of the organs of the
League (Council, Permanent Mandates Commission, Secretariat).

The Court could not correctly conclude that such rights had been
maintained by Article 80, except by contending at the same time
that, for the purposes of the Mandate for South West Africa, the
said organs had survived the dissolution of the League.

(d) Being unable, and for good reasons, so to contend, the Court
creates new rights. To the Court, the right of peoples ‘maintained’
by Article 80 is linked to the United Nations Organization. It is a
right to supervision and control by the United Nations, to which
annual reports and petitions are, in consequence, to be rendered
and addressed. Lacking any other available provision in the Charter,
the Court founds such a conclusion on Article 80. According to its
thesis, it is because Article 80 ‘maintains’ the rights of peoples that
these, though linked to the League, must now be deemed linked to
the United Nations! To infer this from a text worded as Article 80
amounts to assuming that, with respect to the Mandates System, the
United Nations stands as the legal successor of the League, an
assumption inconsistent with the discussions of San Francisco and
with the very fact that the Charter provides for the conclusion of
Trusteeship Agreements.”’

Manley O. Hudson in the American Journal of International
Law, Vol. 45, 1951, criticizes the Court’s decision as follows:

“Article 80 (x) of the Charter seems to be the principal basis of
the Court’s conclusion that the Union of South Africa must report
to the General Assembly. This Article provided that, until the
conclusion of Trusteeship Agreements, nothing in Chapter XIT of
the Charter should ‘be construed ix or of itself to alter in any manner
the rights whatsoever of any States or any peoples or the terms of
existing international instruments’ (italics supplied). The text
clearly shows an intention that Chapter XII should not effect any
alteration of rights or terms. This intention was ‘entirely negative
in character’. The provision served an obvious purpose when Chapter
XII of the Charter was drawn up: the Mandate was still in force
at that time: as the League of Nations had not then been dissolved,
any alteration of the existing situation was a matter for its considera-
tion. Article 80 (1) was a precautionary provision designed to
negative the accomplishment of any change in the existing situation
by reason of Chapter XII ‘in or of itself’. It is not surprising that

333
649

S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)
Judge McNair found it ‘difficult to see the relevance of this Article’.

Yet the Court gave an affirmative effect to Article 80 (x), turning
it into a positive ‘safeguard’ for maintaining the rights of States
and the rights of the peoples of the Mandated Territory. This is the
more notable because at a later stage the Court stressed the ‘entirely
negative’ character of Article 80 (2), declining to say that the latter
imposed a positive obligation on the Mandatory even to negotiate
with a view to the conclusion of a Trusteeship Agreement.

No attention was paid by the Court to the fact that certain
States, which as Members of the former League of Nations may
have ‘rights’ under Article 22 of the Covenant and under the Man-
date itself, had no responsibility for the Charter and have never
become Members of the United Nations. For example, Finland,
Ireland and Portugal, which were represented at the final session
of the Assembly of the League of Nations in 1946, arein this category.
If their rights are ‘maintained’ by Article 80 (1) of the Charter,
they have no voice in the supervision to be exercized by the General
Assembly.”

George Schwarzenberger in International Law, 3rd edition,

Vol.

I, p. 101, commented inter alia as follows:

“.. the World Court was faced with the issue of whether the United
Nations had become responsible for the discharge of the supervisory

. function which the League had formerly exercized in relation to the

334

only still surviving Mandate. In support of a positive answer, the
Court could neither rely on any general principle of succession
between international persons nor any relevant transaction between
the two collective systems. Nonetheless, on the basis of-a threefold
argument, it arrived at this conclusion.

The Court pointed out that the ‘raison d'être and original object’
of the international obligations entered into by the Union of South
Africa had not changed. All that had happened was that the former
supervisory organ had disappeared. The United Nations, however,
had at its disposal ‘another international organ performing similar,
though not identical supervisory functions’. The Court strengthened
this reasoning by its interpretation of the declared intentions of
the Mandatories, including the Union of South Africa, to continue
the administration of the mandates in accordance with the man-
dates treaties until other arrangements should have been made
between the United Nations and the Mandatories. The Resolution of
April 18th, 1946, of the League Assembly which took note of these
intentions of the Mandatories presupposed that ‘the supervisory
functions exercized by the League would be taken over by the United
Nations’. The still missing link with the United Nations was provided
by the Court’s interpretation of Article 80 of the Charter of the
United. Nations. It was admitted in the majority Opinion that ‘this
provision only says that nothing in Chapter XII shall be construed
to alter the rights of States or peoples or the terms of existing inter-
650  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

national instruments’. Still, with the assistance of a somewhat
debatable presupposition and ‘obvious’ intentions, the last gap
was bridged. It is not surprising that Judge McNair should have
found it ‘difficult to see the relevance of this Article’.

Having filled the legal void which separated the supervisory
functions of the League of Nations from those of the United Na-
tions, the Court proceeded with its self-imposed task of ‘judicial

29?

legislation’.

The third reason advanced by the Court for its finding that the
functions of the organs of the League may now be exercized by
the organs of the United Nations is as follows: |

“The Assembly of the League of Nations, in its Resolution of
April 18th, 1946, gave expression to a corresponding view. It rec-
ognized, as mentioned above, that the League’s functions with
regard to the Mandated Territories would come to an end, but
noted that Chapters XI, XII and XIII of the Charter of the United
Nations embody principles corresponding to those declared in
Article 22 of the Covenant. It further took note of the-intentions
of the Mandatory States to continue to administer the territories
in accordance with the obligations contained in the Mandates until
other arrangements should be agreed upon between the United
Nations and the Mandatory Powers. This Resolution presupposes
that the supervisory functions exercized by the League would be
taken over by the United Nations.”

This Resolution of the Assembly of the League of 18 April 1946
has already been fully dealt with. It will be recalled that the United
Nations Resolution of 12 February 1946 relating to the functions
and powers of the League under treaties, international conventions,
agreements or other instruments of a political character were to
the effect that the United Nations would examine any request
from the parties, and that the United Nations should assume the
exercise of functions or powers entrusted to the League of Nations.
The League Resolution remained silent in regard to this particular
Resolution, and apart from the one dealing specifically with the
Mandates, it confined its resolutions to functions, powers and
activities of a non-political character. From this one must infer
that inasmuch as the United Nations in terms of its resolutions had
resolved that it would examine each treaty separately when re-
quested to do so by the parties, the League Assembly considered
that there was no further function for it to perform. The Assembly
of the League was aware of the resolutions of the United Nations
and if, despite these resolutions, it intended to transfer the League’s
function relative to the Mandates to the United Nations, it would
have passed a resolution to that effect. The draft resolution of
China, it will be recalled, expressly drew the League’s attention
to the fact that the supervisory function of the organs of the
League were nov being transferred to the United Nations, and
proposed that the League’s function as supervisory organ for

335
651 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

mandated territories should be transferred to the United Nations
until the Trusteeship Council should be constituted. This was in
direct conflict with the Resolution of the United Nations and would
in all probability not have had the unanimous approval that a
resolution of the League required. The fact that it was dropped and
another resolution, omitting the aforesaid provision, adopted, proves
that the League of Nations did not intend to transfer its functions
as the supervisory organ for mandated territories to the United
Nations. See in this regard Hogg’s Treaty Interpretation, Min-
nesota Law Review, 1959, page 43.

I have already dealt with the statements of the Mandatories
and the Resolution of the Assembly of the League at its dissolution.
They, too, contain no evidence of an assumption that the super-
visory function of the League would be taken over by the United
Nations. On the contrary, if regard is had to all the facts, there
is no justification whatsoever for the assumption in the majority
Opinion in regard to the “presupposition” that the supervisory
function of the League would be taken over by the United Nations.
The Court was obviously unaware of all the relevant facts relating
to the Resolution of the League Assembly, e.g. the original resolu-
tion of the representative of China. It was certainly unaware of its
significance as no mention is made thereof in the Judgment. Had
the Court been aware of all the facts and their true significance,
it would not, and. could not have arrived at the conclusion it did.

In any event the League resolution is not a treaty or convention,
and even if it is, it has not been registered in terms of Article 102
of the Charter, and cannot therefore be invoked in this Court.

Nisot, op. cit., p. 280, criticizes the Court as follows:

“(e) However, the Court also invokes, as supporting its con-
clusions, the Resolution of 18th April 1946 whereby the Assembly
of the League of Nations ‘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 corres-
ponding to those declared in Article 22 of the Covenant of the League’.

But one fails to see how this statement can provide any support
for a suggestion that it was the Assembly’s opinion that a Mandatory
Power, though not bound by a Trusteeship Agreement, was under
<n obligation to submit to supervision and control by the United
Nations.

This was no more the opinion of the Assembly of the League of
Nations than that of the General Assembly of the United Nations,
which, by its Resolution of gth February 1946, urged the conclusion
of trusteeship agreements, implving that no implementation of the

336
652 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

principles of the Trusteeship System—therefore, no supervision or
control—was possible in the absence of such agreements.”’

Hall, in Mandates, Dependencies and Trusteeship, p. 273,
commented as follows in regard to the League Assembly Resolution
of 18 April 1946:

“The significance of this Resolution of the League Assembly
becomes clearer when it is realized that for many months the most
elaborate discussions had been taking place between the governments
as to the exact procedure to be adopted in making the transition
between the League and the United Nations. It was the function ‘of
the Preparatory Commission and the committees succeeding it to
make recommendations on the transfer of functions, activities, and
assets of the League. All the assets of the League had been carefully
tabulated. All its rights and obligations that could be bequeathed to
the United Nations and which the latter desired to take over were
provided for in agreements that were made. But in the case of
mandates, the League died without a testament.”

Manley O. Hudson commented as follows in the Twenty-Ninth
Year of the World Court, American Journal of International Law,
Vol. 45, 1051, p. 13:

“To support its additional conclusion that the Union of South
Africa is obliged to submit to the supervision of, and to render annual
reports to, the United Nations, the Court relied upon a resolution
adopted by the final Assembly of the League of Nations on 18 April
1946, which was said to presuppose ‘that the supervisory functions

* exercized by the League would be taken over by the United Nations’.

This is hardly borne out by the text of the Resolution, however.”

The final reason advanced in the majority Opinion and the
€ourt’s conclusion are as follows:

“The competence of the General Assembly of the United Nations
to exercise such supervision and to receive and examine reports is
derived from the provisions of Article 10 of the Charter, which
authorizes the General Assembly to discuss any questions or any
matters within the scope of the Charter and to make recommenda-
tions on these questions or matters to the Members of the United
Nations. This competence was in fact exercized by the General
Assembly in Resolution 141 (II) of November 1st, 1947, and in
Resolution 227 (III) of November 26th, 1948, confirmed by Resolu-
tion 337 (IV) of December 6th, 1940.

For the above reasons, the Court has arrived at the conclusion that
the General Assembly of the United Nations is legally qualified to
exercise the supervisory functions previously exercized by the League
of Nations with regard to the administration of the Territory, and
that the Union of South Africa is under an obligation to submit to
supervision and control of the General Assembly and to render
annual reports to it.”

This final reason can hardly be termed the reason for the above
conclusion. It will be observed that Article 10 only applies if a

337
653  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

question or matter is within the scope of the Charter or relates to
the power and functions of any organ provided for in the Charter,
and the General Assembly is merely authorized to discuss and make
recommendations on such questions or matters. The General
Assembly undoubtedly has the right to discuss a report that is
made to it, but its right to discuss a report which is made to it has
no bearing on the question whether there is a legal obligation to
report to it. If the legal effect of Article 80 (1) of the Charter is
that the Mandatory’s obligations to make annual reports to the
Council of the League relating to the administration of the man-
dated territories were to be converted into obligations to furnish
these reports to an organ of the United Nations after the dissolu-
tion of the League and until trusteeship agreements were entered
into, discussions and recommendations in regard thereto would
be within the powers of the General Assembly in terms of Article 10.

Manley O. Hudson, of. cit., p. 14, remarks as follows:

“The Court seems to have placed emphasis on the competence of
the General Assembly to exercise supervision and to receive and
examine reports. Such competence can hardly be doubted. Yet it
does not follow from the conclusion that the General Assembly
‘is legally qualified to exercise the supervisory functions previously
exercised by the League of Nations’, that the Union of South Africa
is under an obligation to submit to supervision and control by the
General Assembly, or that it is obligated to render annual reports
to the General Assembly.”

In dealing with Article 7 of the Mandate, the aforesaid majority
Opinion states:

“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 application of the provisions of
the Mandate, if not settled by negotiation, should be submitted to
the Permanent Court of International Justice. Having regard to
Article 37 of the Statute of the International Court of Justice, and
Article 80, paragraph 1, of the Charter, the Court is of opinion that
this clause in the Mandate is still in force and that, therefore, the
Union of South Africa is under an obligation to accept the compul-
sory jurisdiction of the Court according to those provisions.”

No other reasons were stated for this conclusion. It will be observ-
ed that the first, third (the Resolution of the League at its dissolu-
tion) and fourth reasons advanced in the majority Opinion for
the conclusion that the supervisory functions of the League were
transferred to the United Nations, are not mentioned in the above
paragraph. The only articles referred to are Article 80 (1) of the
Charter of the United Nations, and Article 37 of the Statute of
the International Court of Justice.

338
654  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

As already stated, if Article 7 of the Mandate remained unamend-
ed, it can no longer apply as it depended for its fulfilment on the
existence of the League. As there is no League in existence there
can be no Members of the League, and accordingly no State has
locus standi.to bring proceedings under the provisions of Article 7
in its original form. If Article 7 still applies, it can only apply in
an amended form, that is, if ex-members of the League or Members
of the United Nations have been substituted for Members of the
League, and if this Court has been substituted for the Permanent
Court of International Justice. I shall assume that the Court
meant that this was brought about by: the provisions of Arti-
cle 37 of its Statute and Article 80 (1) of the Charter.

I have already pointed out that the legal effect of Article 37
of the Statute of this Court is that in treaties or conventions in
force, this Court is substituted for the former in the place of inter
alia the Permanent Court of International Justice. It does not
purport to amend the qualifications prescribed in any treaty or
convention and it does not, and cannot, have the effect of substi-
tutirg ex-Membership of the League of Nations or Membership of
the United Nations, for Membership of the League in Article 7
of the Mandate. The Court must therefore have relied exclusively
on the provision of Article 80 (1) for its view that Article 7 was
amended by substituting ex-Membership of the League or Member-
ship of the United Nations for Membership of the League.

I have already dealt with Article 80 (1) of the Charter, and I
have shown that it does not and was not intended to alter the
provisions of any mandates. There was not the slightest suggestion
at any time, either when Article 80 was drafted, or therefater that
ex-Members of the League or Members of the United Nations were
substituted in Article 7.

Judge Read in his separate Opinion at page 169 said:

“The legal rights and interests of Members of the League in
respect of the Mandate, survived with one important exception—
in the case of Members that did not become parties to the Statute of
this Court, their right to implead the Union before the Permanent
Court lapsed.”

It is not clear on what reasoning the learned Judge arrived at
this conclusion. He apparently argued that inasmuch as the
Mandate for South West Africa was still in existence, the rights of
States which were Members of the League at its dissolution must
still exist. It is not possible to reconcile this reasoning with the
Judge’s conclusion that inasmuch as the League had come to an
end Respondent’s obligations in respect of reporting and account-
ability had come to an end. He does not appear to have appreciated

339
655 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

that just as Article 6 of the Mandate depended for its fulfilment
on the existence of the League, so Article 7 depended for its ful-
filment on the existence of Members of the League. Presumably his
reasons were the same as those of Judge McNair, with which I
shall deal presently.

In his separate Opinion Sir Arnold McNair said:

“The judicial supervision has been expressly preserved by means
of Article 37 of the Statute of the International Court of Justice-
adopted in 1945:

“Whenever a treaty or convention in force provides for reference
of a matter to a tribunal to have been instituted by the League of
Nations, or to the Permanent Court of International Justice,
the matter shall, as between the parties to the present Statute,
be referred to the International Court of Justice.’

This article effected a succession by the International Court to the
compulsory jurisdiction conferred upon the Permanent Court by Ar-
ticle 7 of the Mandate; for there can be no doubt that the Mandate,
which embodies international obligations, belongs to the category of
treaty or convention; in the judgment of the Permanent Court in the
Mavrommatis Palestine Concéssions (Jurisdiction) case, Series A,
No. 2, p. 35, the Palestine Mandate was referred to as an ‘interna-
tional agreement’; and I have endeavoured to show that the agree-
ment between the Mandatory and other Members of the League

’ embodied in the Mandate is still ‘in force’. The expression ‘Member
of the League of Nations’ is descriptive, in my opinion, not condi-
tional, and does not mean ‘so long as the League exists and they are
Members of it’; their interest in the performance of the obligations
of the Mandate did not accrue to them merely from membership of
the League, as an examination of the content of the Mandate makes
clear. Moreover, the Statute of the International Court empowers
it to call from the parties for ‘any document’ or ‘any explanations’
(Article 49); and to entrust any ‘individual, body, bureau, commis-
sion or other organization that it may select, with the task of carrying
out an enquiry...’ (Article 50). Article 94 of the Charter empowers
the Security Council of the United Nations to ‘make recommen-
dations or decide upon measures to be taken to give effect to the
judgment’ of the Court, in the event of a party to a case failing to
carry out a judgment of the Court. In addition, the General Assembly
or the Security Council of the United Nations may request the Court
to give an advisory opinion on any legal question (Article 96 of the
Charter).”’

I must confess that I do not understand the significance in the
inquiry of the articles of the Statute of this Court and the Charter
referred to in the sentence commencing: “Moreover the Statute
of the International Court...”

The learned Judge came to the conclusion that the word Member
of the League of Nations in Article 7 is descriptive, and that it
did not mean “so long as the League exists and they are Members

340
656  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK) :

of it”. I have dealt fully with the provisions of the Mandate and
the Covenant and I have indicated that the phrase “Member
of the League of Nations’ cannot mean ‘‘ex-member of the League
of Nations”. ‘Member of the League” must clearly in the absence
of any amendment of Article 7 be given the same meaning today it
had when the Mandate first came into existence. Membership of
the League was necessary before a State could obtain locus standi
to bring proceedings under Article 7, and similarly continued
Membership was necessary to retain such locus standi. The clear
and unambiguous meaning of the words “Member of the League” is
therefore a Member of the League at the time when the particular
provisions of the Article are sought to be applied. It was clearly
never intended that the rights conferred on Members of the League
as Members of the League would continue to be held after Member-
ship had ceased. The words ‘Member of the League” appear in
all the Mandates and when construed in their context cannot include
States which were but are no longer Members of the League.

The meaning of the words “Member of the League” in Article 7
is so clear that the task of interpretation can hardly be said to arise.
It is not allowed to interpret that which has no need of interpre-
tation.

The learned Judge further stated that the interest of Members of
the League in the performance of the obligations of the Mandate
“did not accrue to them merely from Membership of the League,
as an examination of the content of the Mandate makes clear’.
Be this as it may, it is clear that the right to bring proceedings in
the Permanent Court of International Justice accrued to Members
of the League entirely from such Membership. This right flows from
Article 7 of the Mandate and from nothing else. If Article 7 were
repealed no such right would have remained. If the Article never
existed, the right would never have existed.

It is accordingly clear that even if Members of the League had
an interest in the performance of the Mandate which did not accrue
from their Membership such interest could not provide any State
with locus standi to bring proceedings in the Permanent Court of
International Justice where such locus standi was not conferred by
Article 7 of the Mandate.

Manley O. Hudson criticizes Judge McNair’s opinion as follows
in the American Journal of International Law, Vol. 45 (1951), p. 16:

“Judge McNair expressed the view that this expression is ‘de-
scriptive, not conditional’, and that it does not mean so long as the

347
657  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

League exists and they are Members of it. Yet what States does it
describe? Does the phrase mean another State which was a Member
of the League of Nations on December 17, 1920? If so, Brazil would
be included, though it withdrew from the League of Nations in 1923,
and Egypt and Mexico would be excluded because they were ad-
mitted to the League of Nations at later dates. Does the phrase now
mean another State which was a Member of the League just prior
to its dissolution? Judge McNair seems to have been willing to give
it this import. Yet some States.in this category—for example,
Portugal, whose territory borders on South West Africa—may not
now be ‘States entitled to appear before the Court’. In any event, the
meaning is so imprecise that perhaps the Court might have shown
more hesitance in declaring the replacement to be made in the second
paragraph of Article 7 of the Mandate.”

The question now arises to what extent the 1950 Advisory
Opinion of this Court should be considered binding in these pro-
ceedings. It is common cause that an Opinion has not the authority
of ves judicata nor does the stare decisis rule apply. I have already
referred to the provisions of Article 38 and Article 59 of the Statute
of this Court, the effect of which is that a decision of this Court is
only binding on the parties thereto and that its decisions must be
regarded as subsidiary means for the determining of rules of law.
In its Opinion of 30 March 1950 (Interpretation of Peace Treaties
1950, I.C.J., page 71), this Court held that “The Court’s reply is
only of an advisory character, it has no binding force”, and “The
Court’s Opinion is given not to States but to the organ which is
entitled to request it”. This Court will obviously not readily depart
from a prior ruling especially if the subsequent proceedings involve
substantially the same legal issues. It must, in view of its high
mission, attribute to its Opinions legal value and moral authority,
but when in a subsequent proceeding it becomes clear that an
Opinion previously given is wrong, this Court, however reluctant
it may be to do so, has no option but to say so.

The issue with which this Court was primarily concerned in 1950
was whether the Mandate was still in force; the question whether
Article 7 still applied was not formulated as a specific question for
the Court’s consideration and was merely an incidental issue. It
apparently received very little attention. Dr. Stein, who appeared
on behalf of the Respondent, advanced the contention that by
reason of the dissolution of the League there were no longer any
States which could invoke Article 7 of the Mandate but he ap-
parently regarded this contention as a legal proposition which did
not require further argument. The Majority Opinion disposed there-
of in one single passage, the meaning of which is obscure. In any
event, it has been shown that the two Articles, that is, Article 37
of the Statute of this Court and Article 80 (1) of the Charter, relied
upon by the Court, cannot support its conclusion. It is abundantly

342
658  S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

clear that the Court was either unaware of all the facts or failed
to appreciate their true significance. A full consideration of all the
material facts leads to the inescapable conclusion that the aforesaid
statement in the 1950 Opinion was erroneous. In these circumstances
there can be no doubt that it is now this Court’s duty to rectify
and not to perpetuate its error.

I accordingly come to the conclusion that Article 7 of the Mandate
cannot be invoked as there are no longer Members of the League
to do so. The Respondent has not been a party to any agreement
in terms whereof it agreed that after the dissolution of the League
ex-Members of the League or Members of the United Nations would
be substituted for Member of the League in Article 7 of the Mandate
Declaration. It follows that the Applicants have no locus stand? and
this Court no jurisdiction in the present proceedings.

*
* *

It is clear that a finding in favour of the Respondent on any of
the issues raised in the Objections necessarily means that this Court
has no jurisdiction to deal with the present matter, but in view of
the importance of this matter I shall briefly state my views in
regard to some aspects of the remaining issues. At the outset I wish
to state that I am in full agreement with the Opinions of President
Winiarski, Judge Sir Percy Spender and Judge Sir Gerald Fitz-
maurice and Judge Morelli.

The issues stated in the Applications in effect relate exclusively
to the tutelage obligations of the Respondent concerning the peoples
of South West Africa and the Applicants do not claim that their
own interests or that of their citizens are affected. It is clear that
the Applicants’ only motive for bringing these proceedings is their
humanitarian concern for the peoples of the aforesaid territory.

This raises the question whether the Respondent has agreed to
the Applicants submitting to this Court disagreements relating
exclusively to the interpretation or application of the Respondent’s
tutelage obligations and not affecting the Applicants’ legal rights
or the legal rights of their citizens.

The compromissory clause in Article 7 provides for reference of
any “dispute” relating to the interpretation or application of the
provisions of the Mandate to the Permanent Court of International
Justice. The enquiry is whether what is sought to be referred to
this Court is a “dispute” within the meaning of this clause.

The first question that arises is whether the word “dispute” in
Article 7 means “‘disagreement embracing any difference of opinion”
or whether it means “a difference concerning the legal rights of the
parties”. Both meanings are possible and one must now invoke the
rules of construction and determine, in the light of such evidence

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of intention as is available, which of these meanings should be
preferred. The reasons for preferring the latter meaning are, in
my opinion, unanswerable.

If the word “dispute” is given the meaning of “disagreement
embracing any difference of opinion” it leads to absurd results. It
would mean that it was intended that a Member State could bring
academic differences of opinion to this Court or differences of opinion
relating solely to the interests of another Member of the League or
even a non-Member. | .

It will be recalled that the draft Mandate Declaration submitted
by the British Government to the Council of the League contained
a provision which provided for disputes between Members of the
League relating to the interpretation or application of the provisions
of the Mandate to be submitted to the Permanent Court of Inter-
national Justice. The reason for changing the wording to the present
form was that Members of the League could not be bound without
their consent. There was no intention to change the meaning of the
word “dispute”. If the wording of the original draft was retained
and if the word “dispute” is given the meaning of any difference
of opinion it would have meant that one Member of the League
could have brought proceedings against another Member of the
League relating to a difference of opinion as to the nights of a
third State.

A study of the provisions of Article 36 of the Statute of the
Permanent Court of International Justice leaves no doubt that it
was intended that the Permanent Court of International Justice
should, apart from its duty to give Opinions, be concerned with
legal disputes only. It seems to me quite clear that had any State
referred a dispute to the Permanent Court of International Justice
for adjudication in respect of a matter which did not concern the
rights of such State or its citizens the Court would have refused to
deal with the matter. It would have said that in terms of its own
constitution it was not competent to deal with differences of opinion
or with conflicts of views unrelated to the legal rights of the party
requesting adjudication.

The generally accepted meaning of the word “‘dispute’’ in compro-
missory clauses is a difference between States concerning their legal
rights.

It is clear from the Judgment of the majority, as well as from the
minority Opinions in the Mavrommatis case, P.C.1.J., Series A,
No. 2, that a legal right was regarded as necessary for locus standt
on the part of the Applicant. If the word “dispute”. was considered
to embrace all disagreements irrespective of any legal right or
interest on the part of the Member of the League seeking to invoke
the Article there would have been no need for enquiring into the
legal rights of the Greek Government.

In my view, there can be no doubt that the word ‘‘dispute’’ should
be interpreted as meaning a disagreement between the Mandatory

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and another Member of the League concerning the legal rights of
such Member.

The next enquiry is whether the present proceedings relate to a
disagreement concerning the Applicants’ legal rights.

Applicants contend that they possess the legal right to demand
compliance by the Respondent of all its tutelage obligations, irre-
spective of whether such obligations aftect their rights or the rights
of their citizens. This contention requires a careful examination of
the provisions of Article 22 of the Covenant of the League of Nations
and the provisions of the Mandate Declaration.

It will be observed that paragraph 2 of Article 22 of the Covenant
provides that the tutelage of the peoples of the territory concerned
should be exercised by the Mandatory on behalf of the League. It
does not provide that the tutelage should be exercised on behalf
of the League and its individual Members. The Mandatory is re-
quired by paragraph 7 of Article 22, to report to the Council of the
League. There is no provision requiring the Mandatory to account
to any individual Member of the League. Paragraph 1 of Article 22
provides that securities for the performance of the sacred trust
of civilization are to be embodied in the Covenant itself. These
securities do not include supervision by the individual Members of
the League.

Article 22 of the Covenant of the League requires the Mandatory
to exercise the tutelage of the peoples concerned on behalf of the
League. It is clear that Article 22 conferred no general rights on
individual States to supervise the Mandatories in any way other
than through their activities as Members of the League. The fact
that Members of the League were concerned about the well-being
and development of these peoples does not mean that it was intend-
ed that each individual State should have the right to demand
from the Mandatory compliance with the tutelage obligations. The
fact that Members of the League were entitled to participate in the
discussions of the League did not confer legal rights on each Member
of the League to supervise the Mandates. The common humani-
tarian concern of Member States for the well-being and development
of these peoples led to the creation of a supervisory body and this
supervisory body was clothed with the general right to claim
compliance by the Mandatory of its tutelage obligations.

It is clear that the intention was that all the provisions relating
to the Mandatories should be embodied in Article 22 save that
under the provisions of paragraph 8 of Article 22 “the degree of
authority, control or administration to be exercised by the Manda-
tory” was to be agreed upon by the Members of the League and if
they failed to do so it was to be explicitly defined by the Council
of the League. There, accordingly, was not only no provision to the
effect that individual Member States of the League would have the
right to demand compliance by the Mandatory of its sacred trust

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661 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

obligations but no provision was made for any organ of the League,
or any other body, adding a provision to this effect. Article 22 of
the Covenant of the League could only be amended by the Members
of the League whose representatives composed the Council and by
a majority of the Assembly in terms of Article 26 of the Covenant.
The Council of the League could not do so on its own. The Council
of the League could, therefore, only define the degree of control,
authority or administration to be exercized by the Mandatory but
could not amend Article 22. The authority to define the degree of
control, authority or administration did not include authority.to add
to the securities set out in Article 22, not only because its authority
under paragraph 8 did not include such a power, but also because
Article 22 requires in terms the application of the principle that
securities for the performance of the trust should be embodied in
the Covenant.

The Council of the League was not authorized to add to, or to
vary, the securities set out in Article 22. Its sole function was to
define the degree of authority, control or administration to be exer-
cized by the Mandatory. It had no authority to provide for the
control to be exercized over the Mandatory.

If it is correct to say the Council of the League could not amend
Article 22 and if it is correct to say that the Council of the League
could not, add to the securities for the performance of the sacred
trust set out in Article 22, it follows that if Article 7 of the Mandate
Declaration purported to have this effect it cannot be valid. If
Article 7 means that each Member of the League of Nations was’
given the legal right to demand compliance with the sacred trust
obligations of the Mandatory, it means that the Council not only
exceeded its authority under Article 22 (8) but that it purported to
amend Article 22. Article 7 should be given a meaning which renders
it valid rather than one that renders it invalid. It would be valid
if it is construed as a provision that Members of the League
could refer disagreements relating to their own rights to the Per-
manent Court of International Justice.

In addition to the provisions exclusively designed to promote the
well-being and development of the peoples of the territories con-
cerned, Article 22 also contained provisions designed primarily for
the benefit of Member States, e.g., the so-called open-door provisions
for trade and commerce. Even in regard to these obligations
Members of the League were clearly given no general right to
demand compliance therewith. Each State could only demand com-
pliance in so far as its interests, or the interests of its citizens, were
concerned. If, for example, State A was given greater opportunities
of trade by a Mandatory than any other State, State A could not
institute proceedings under the provisions of the compromissory
clause to claim that its opportunity should be less or that the
opportunities of another State should be more.

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662 S. W. AFRICA CASES (DISS. OPIN. OF JUDGE VAN WYK)

It seems clear that the compromissory clause in Article 7 was
not designed to create legal obligations other than the obligation
on the part of the Respondent to submit to the jurisdiction of the
Permanent Court of International Justice in respect of any pro-
ceedings brought by Members of the League to enforce their legal
rights under the Mandates. In other words, Article 7 merely provides
for the adjudication of disagreements in which the Plaintiff State
has a legal right, but it does not create any other legal rights. The
legal rights of the Member States must be gathered from Article 22
of the Covenant of the League and the Mandate as a whole. I have
already indicated that the supervisory functions with regard to the
Mandates were in express terms reserved for the Council of the
League, and that there could not have been any intention that in
addition each and every Member of the League would stand in the
position of custodian of the rights of the peoples of the territories
concerned.

My conclusion, accordingly, is that the Respondent has not
agreed to the Applicants instituting any action against it on the
interpretation or application of the provisions of the Mandate where
the Applicants’ own rights, or the rights of their citizens, are
not in issue, and this affords an additional reason for holding that.
this Court has no jurisdiction to adjudicate upon the present
proceedings.

(Signed) J. T. van WYK.

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