65

SEPARATE OPINION OF
JUDGE SIR PERCY SPENDER

The central issue in this case is, in my opinion, whether the
dispute alleged by the Republic of Cameroon is a dispute within
the meaning of the adjudication clause; Article 19 of the Trustee-
ship Agreement. Since I reach the conclusion that the dispute
alleged is not a dispute within the meaning of that Article, the
Court is, in my opinion, without jurisdiction.

This Court in 1962 had occasion in the South West Africa cases !
to consider an adjudication clause which was contained in the
Mandate Instruments under the Covenant of the League of Nations,
a clause which in all essentials—apart from one matter to which
reference will later be made—was the same as that set out in
Article 19 of the Trusteeship Agreement the subject of consideration
in this case. The very core of the Court’s reasoning which led it to
give to the adjudication clause in the South West African Mandate
the all-embracive interpretation it did was, in my view, that that
clause was inherently necessary, was essential to the unctioning of
the Mandate System and the exercise of the Mandate, in order to
ensure the performance by the Mandatory Power of its obligations
to the peoples of the Mandated Territory as set forth in the Mandate
Instrument. The clause, in the Court’s opinion, thus provided an
essential judicial security for the performance of these obligations.
These considerations led the Court to conclude that the adjudi-
cation clause in the Mandate Instrument covered not only disputes
between a State, a Member of the League, and the Mandatory
Power in relation to provisions of the Mandate Instrument where-
under individual rights or interests were conferred upon States,
Members of the League or their nationals, but also the provisions
thereof which imposed general obligations upon the Mandatory
Power in the interests of the people of the Mandated Territory—-
the obligations to carry out the ‘‘sacred trust” imposed upon and
undertaken by it.

In the present case the context of the adjudication clause—Article
19 of the Trusteeship Agreement—is not the same as it was in the
South West Africa cases, though it is in all essential wording the
same. In the South West Africa cases the clause had to be interpreted
in the context of the Covenant of the League and the terms of the
Mandate Instrument; in the present case it must be interpreted in

1 1.C.J. Reporis 1962, p. 319.
54
66 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

the context of the International Trusteeship System established
under the Charter of the United Nations and the terms of the
Trusteeship Agreement itself. Moreover, much of the foundation
upon which the Court erected its reasoning in the cases of South
West Africa in the instant case crumbles away; the Court in those
cases itself recognizing that the necessity for the adjudication
clause—essentiality—which was stated by it to characterize the
clause in the Mandate System disappeared under the International
Trusteeship System of the United Nations; it was “dispensed with’’
by the terms of the Charter 1.

My colleague, Judge Sir Gerald Fitzmaurice, and I disagreed
with the reasoning of the Court as well as with the interpretation it
placed upon the adjudication clause in the Mandate Instruments,
and we expressed our view at length. Although a great deal of what
we then had to say is directly applicable to the interpretation to be
accorded to the adjudication clause in this case—in particular we
rejected the view that the adjudication clause was either essential or
necessary to the Mandate System or the Mandate Instrument—
none the less, since the task of interpretation in this case is not the
same as that which faced the Court in the South West Africa cases,
it would, I think, be neither sufficient nor satisfactory to refer in
general to the reasoning then advanced by my colleague and myself
and content myself with a brief presentation of my views in the
case. I think it advisable to express in some detail the reasons which
lead me, in this case, to the conclusion that the dispute alleged by
the Applicant is not a dispute within the meaning of Article 19
of the Trusteeship Agreement before the Court.

*
* Éd

The Broad Issues to Be Determined

The Applicant alleges breaches by the Respondent of Articles 3,
5, 6 and 7 of the Trusteeship Agreement. The breaches alleged are
not particularized except under heads of “complaints” in the
Application and Memorial. The Articles above mentioned express in
broad and general terms obligations undertaken by the Adminis-
tering Authority with the United Nations to administer the Terri-
tory in such a manner as to achieve the basic objectives of the
International Trusteeship System laid down in Article 76 of the
United Nations Charter (and to this end the Administering Author-
ity undertook to collaborate fully with the General Assembly and
the Trusteeship Council on the discharge of their functions) (Article
3): to promote the development of free political institutions suited
to the Territory and assure its inhabitants an increasing share in

1 I.C.J. Reports 1962, at 342.
55
67 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

administrative and other services and develop their participation
in government as might be appropriate to the particular circum-
stances of the Territory and its people, special regard being had to
the provisions of Article 5 (a) of the Trusteeship Agreement (Article
6): and to apply in the Territory, inter alia, recommendations
already existing or thereafter drawn up by the United Nations which
might be appropriate to the particular circumstances of the Terri-
tory and conduce to the achievement of the basic objectives of the
International Trusteeship System (Article 7). Article 5 (a), to which
reference is made above, provided that for all purposes of the
Trusteeship Agreement the Administering Authority should have
full powers of legislation, administration and jurisdiction and should
administer the Territory in accordance with the Authority’s own
laws as an integral part of its territory “with such modification as
may be required by local conditions” and subject to the provisions
of the United Nations Charter and of the Trusteeship Agreement.

Though the Applicant alleges breaches generally of the provisions
of the Trusteeship Agreement no other specific provision of the same
is adverted to by the Applicant or referred to in its “complaints”,
which constitute, as its Application states, the subject-matter of its
dispute with the Respondent Government, other than Article 5
{b} which provides that the Administering Authority should be
entitled, enter alia, to constitute the Territory into an administrative
union or federation with adjacent territories under its sovereignty
or control and to establish common services between such territories
and the Trust Territory where such “measures” were not inconsistent
with the basic objectives of the International Trusteeship System
or with the terms of the Trusteeship Agreement.

The gist of the complaints of the Applicant Government may be
stated as follows: the objective of development of free political
institutions, etc., has not been achieved; this it is alleged was a
breach of Article 3 of the Agreement: the Northern Cameroons had
been administered as an integral part of Nigeria and not as a
distinct territory; this is alleged to have been a breach of Article 5
(b) of the Agreement: the Trust Territory had been administered
in two separate parts, the Southern and Northern Cameroons with
two administration systems and following, it is asserted, separate
courses of political development; this is alleged to be contrary to a
“rule of unity” presumably inherent in the Trusteeship Agreement.
These breaches are further alleged to have continued from 1946
onwards and are stated to have deployed their effects in a continuous
manner up to the time of the plebiscite held in the Northern
Cameroons in February 1961 preventing consultation with the
people sufficient to satisfy the requirements of the Trusteeship
Agreement, as a result of which plebiscite the Trusteeship Agree-
ment was brought to an end before the objectives of Article 76 of
the Charter had been achieved. Thus, it is said, Northern Cameroons
became part of the State of Nigeria.

56
68 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

Four additional complaints are set forth in the Application three
of which relate to alleged breaches of a resolution of the General
Assembly 1473 of 12 December 1959, the remaining one dealing with
certain alleged practices, acts or omissions of “the local Trusteeship
Authorities’ during the period preceding and during the plebiscite;
which it is further alleged prevented a free and unfettered expression
of opinion. All of these four additional complaints are asserted to be
in conflict with the Trusteeship Agreement!.

The Applicant State does not seek any specific redress in relation
to the alleged breaches of the Trusteeship Agreement complained of;
it seeks only a declaration of the law.

*
* *

It will thus be seen that the dispute alleged to exist between the
Applicant and the Respondent relates exclusively to the general
obligations of the Respondent under the Trusteeship Agreement
undertaken by it with the United Nations to achieve the objectives
of the International Trusteeship System established by the Charter
in the interests of the people of territories who had not yet attained
self-government or independence.

To what Extent Does the Recent Decision of this Court in the
South West Africa Cases Bear upon the Present Case?

In the South West A frica cases the view of the Court that Article 7
of the Mandate Instrument was inherently necessary or essential to
the functioning of the Mandate System, giving effect to the concept
of what has been termed the “judicial protection of the sacred
trust”, was of the very heart of the Court’s reasoning. This view
found its first expression in the Judgment when the Court was
dealing, not with the question of what was a dispute within the
meaning of Article 7 of the Mandate, but with the question raised by
the Second Objection of the Union of South Africa which centred on
the term “‘another Member of the League of Nations...” in that
Article. The Union of South Africa had claimed that Ethiopia and
Liberia did not have the status required by the Article to invoke the
jurisdiction of the Court since neither was any longer a Member of
the League of Nations. The Court, after stating that this contention
was claimed to be based upon the natural and ordinary meaning of
the words ‘‘another Member of the League of Nations”, did not, as
I understand the Judgment, deny that the natural and ordinary
meaning of the words were as contended for by the Union of South
Africa. It stated that the rule of interpretation that recourse should

1 See in particular Articles 3 and 7 of the Trusteeship Agreement.

57

69 JUDG. 2 X11 63 (SEP. OPIN. SIR PERCY SPENDER)

be had, in the first place, at least, to the ordinary and natural
meaning of words was not an absolute rule of interpretation and
then proceeded to observe that—

“Where such a method of interpretation results in a meaning
incompatible with the spirit, purpose and context of the clause or
instrument in which the words are contained, no reliance can be
validly placed on it” (U.C.J. Reports 1962, at 336).

The Court then proceeded to state its reasons why reliance, in the
light of this observation, could not be placed upon the natural and
ordinary meaning of the words in question. The centre of its reasons
was the assertion that “judicial protection of the sacred trust in
each Mandate was an essential feature of the Mandates System”;
the administrative supervision by the League was “a normal
security” to ensure full performance by the Mandatory of the
“sacred trust” but “the specially assigned role of the Court was
even more essentiali, since it was to serve as the final bulwark of
protection by recourse to the Court against possible abuse or
breaches of the Mandate’’?; for without this additional security,
the Court went on to say, the supervision by the League and its
Members could not be effective in the last resort since supervision
by the League Council was subject to the rule of unanimity of its
Members, including the approval of the Mandatory itself. In the
event of a conflict between the Mandatory and other Members of
the Council, in the last resort, the Court continued, “the only course
left to defend the interests of the inhabitants! in order to protect the
sacred trust would be to obtain an adjudication by the Court...”.
This, it said, could only be achieved by a State a Member of the
League invoking the adjudication clause in the Mandate Instrument.

“It was for this all-important purpose that the provision was
couched in broad terms embracing ‘any dispute whatever’ '... It is
thus seen what an essential part ! Article 7 was intended to play as
one of the securities in the Mandates System for the observance of
the obligations by the Mandatory...” (U.C.J. Reports 1962, at 337.)

Moreover, the Court added, this “essentiality of judicial pro-
tection for the sacred trust”, the right to implead the Mandatory
before the Permanent Court, was “specially and expressly” con-
ferred upon the Members of the League “evidently also because it
was the most reliable procedure of ensuring protection by the Court,
whatever might happen to or arise from the machinery of adminis-
trative supervision” 5. |

There was, the Court said, an “important difference” in the
structure and working of the system of supervision of mandated

1 Emphasis added.
2 I.C.J. Reports 1962, at 336.
3 Jhid., at 337-338.

58
70 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

territories under the League and that of trust territories under the
United Nations, namely that the unanimity rule in the Council of
the League had under the Charter been displaced by the rule of a
two-thirds majority. This observation of the Court was directed to
meet an argument that Article 7 was not an essential provision of
the Mandate Instrument for the protection of the sacred trust of
civilization, in support of which argument attention had been
called to the fact that three of the four ‘“‘C’’ Mandates when brought
under the trusteeship provisions of the Charter of the United
Nations did not contain, in the respective trusteeship agreements,
any adjudication clause. It was in the course of dealing with this
argument that a statement of the Court, greatly relied upon by the
Respondent in this case to distinguish the present case from that
of South West Africa, was made. The Court’s statement was as
follows:

“Thus legally valid decisions can be taken by the General As-
sembly of the United Nations and the Trusteeship Council under
Chapter XIII of the Charter without the concurrence of the trustee
State and the necessity! for invoking the Permanent Court for
judicial protection which prevailed under the Mandates System is
dispensed with under the Charter 1.2

In the Dissenting Opinion of myself and Judge Sir Gerald Fitz-
maurice in those cases there appear the reasons why we were
unable to agree with this reasoning of the Court, and there is no
need to repeat them here. It is sufficient for the moment to note the
reasoning of the Court and to observe that it was directed to
establishing that in the events which happened there arose out of a
debate in the Assembly of the League, on the eve of its dissolu-
tion, a unanimous agreement among all Member States that the
Mandate should be continued to be exercised after the dissolution
of the League of Nations in accordance with the obligations defined
in the Mandate Instrument, including that of the Mandatory under
the adjudication clause; that this specific obligation survived and
necessarily involved reading into the clause the words “Members of
the United Nations” in place of the words ‘‘Members of the League
of Nations”.

It is evident that the view of the Court was—and with this I am
in full accord—that in a trusteeship agreement under the provisions
of the Charter of the United Nations an adjudication clause is not
inherently necessary or essential to secure the observance of the
general obligations of the Administering Authority undertaken by
it in the interests of the inhabitants.

When later in its Judgment the Court turned to the examination
of the Third Preliminary Objection of South Africa which the Court
said consisted essentially of the proposition that the dispute brought

1 Emphasis added.
2 1.C.J. Reports 1962, at 342.

59
71 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

before the Court was not a dispute as envisaged in Article 7 of the
Mandate, again the thesis of “essentiality’’ of the adjudication
clause in the Mandate Instrument was to the fore of the Court’s
approach; it was indeed of its essence. Having already asserted and
developed the thesis earlier in its Judgment, it returned to and
reasserted it. The adjudication clause in the Mandate Instrument
was ‘‘clearly in the nature of implementing one of the ‘securities! for
the performance of this trust’, mentioned in Article 22, paragraph 1”
of the Covenant of the League.

“The right to take legal action conferred by Article 7 ... is an
essential 1 part of the Mandate itself and inseparable from its exer-
cise 1... While Article 6 of the Mandate ... provides for administrative
supervision by the League, Article 7 in effect provides, with the
express agreement of the Mandatory, for judicial protection! by
the Permanent Court by vesting the right of invoking the compul-
sory jurisdiction against the Mandatory for the same purpose 1... ?”

Taking the view the Court did throughout its Judgment of the
purpose and function of the adjudication clause—of its inherent
necessity, of its essentiality, as part of the Mandate System, and
its inseparability from the exercise of the Mandate itself, it is
understandable, perhaps inevitable, that in interpreting the
adjudication clause in the Mandate Instrument it gave to it the
wide and all-embracive interpretation it did. There can, I think, be
no doubt whatever that the Court’s thesis of the purpose the clause
was intended to serve completely controlled its interpretation
thereof. To the rest of the Article the Court applied, it said, the rule
of the natural and ordinary meaning of the words which rule it had
found reasons to disregard when dealing with the Second Objection.
The words upon which the emphasis was laid in interpreting the
rest of the adjudication clause in the Mandate Instrument were the
same words which appear in the adjudication clause with which we
are presently concerned, namely “any dispute whatever’ and
“relating to the interpretation or the application of the provisions
of” the Mandate Instrument.

It is important to quote what the Court said in full >. It said:

“The language used is broad, clear and precise: it gives rise to
no ambiguity and it permits of no exception. It refers to any
dispute whatever relating not to any one particular provision or
provisions, but to ‘the provisions’ of the Mandate, obviously meaning
all or any provisions, whether they relate to substantive obligations
of the Mandatory toward the inhabitants of the Territory or toward
the other Members of the League or to its obligation to submit to
supervision by the League under Article 6 or to protection under

1 Emphasis added.
2 I.C.J. Reports 1962, at 344.
3 Jbid., at 343.

60
72 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

Article 7 itself. For the manifest 1 scope and purport of the pro-
visions of this Article indicate that the Members of the League
were understood ! to have a legal right or interest + in the observance
by the Mandatory of its obligations both toward the inhabitants
of the Mandated Territory, and toward the League of Nations
and its Members.”

It is upon this pronouncement of the Court that the Applicant
rests its contention that the dispute in this case is one which comes
within the content of Article 19 of the Trusteeship Agreement.

In the Joint Dissenting Opinion of Judge Sir Gerald Fitzmaurice
and myself we gave our reasons, with the great respect which is due
to the Court, not only for thinking that the Court had erred in its
thesis of “‘essentiality’’, “inherent necessity”” and “inseparability’”,
but also why we thought, read in their context, the words of
Article 7 of the Mandate Instrument revealed an ambiguity which
precluded that Article being interpreted in the manner the Court
did. However, whether the Court was or was not right in the
interpretation which it accorded Article 7 of the Mandate Instru-
ment, it is, I think, abundantly evident that that interpretation
cannot automatically be applied to the adjudication clause in the
present case. The thesis of “‘essentiality’’, etc., can find no place in
this case?, Moreover the context in which Article 19 of the Trustee-
ship Agreement must be interpreted is different to the context in
which Article 7 of the Mandate had to be interpreted.

However the reasoning of the Court in the South West Africa cases
is looked at, the interpretation it accorded the adjudication clause
in that case has, I believe, little judicial authority in the deter-
mination of the meaning of Article Ig in this case.

*
* %*

None the less that interpretation is now sought to be applied—lifted
and transposed—to the adjudication clause in the present case;
the words of Article 19 of the Trusteeship Agreement being the same
in all essentials as the adjudication clause in the Mandate Instru-
ments the language of which was said by the Court to be “broad,
clear and precise” and permitting of “‘no exception”, the same inter-
pretation it is contended, must be applied to Article rg.

This line of reasoning is inadmissible. What is necessary to be
done is to interpret Article 19 of the Trusteeship Agreement 2n zis
context and in the light of the surrounding circumstances at the time

1 Emphasis added.
2 See in particular J.C.J. Reports 1962, at 342.

61
73 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

the Agreement was entered into. The Applicant hardly directed
itself to this task but relied, in the main, upon the Court’s view in
the South West Africa cases that the adjudication clause admitted
of no exception, thus it extended to cover the invocation of the
Court’s jurisdiction not only in the interests of the inhabitants,
which was a central consideration in the Court thesis in the South
West Africa cases, but also in the interests of a State itself, as the
Applicant is asserting a right to do in the present case.

It will be my task to examine Article 19, not merely as a clause
containing certain words, but in its context and surrounding
circumstances in order to ascertain the intention of the two Parties
to the Trusteeship Agreement—the United Nations and the Re-
spondent—in relation to that Article, and to demonstrate that
the Applicant’s contention is ill founded.

Article 19 of the Trusteeship Agreement

Article 19 reads as follows:

“Tf any dispute whatever should arise between the Administering
Authority and another Member of the United Nations relating to
the interpretation or application of the provisions of this Agree-
ment, such dispute, if it cannot be settled by negotiation or other
means, shall be submitted to the International Court of Justice
provided for in Chapter XIV of the United Nations Charter.”

*
* *

The Applicant’s contentions, reduced to essentials, may be stated
thus. Upon becoming a Member of the United Nations such rights
as are accorded by Article 19 to States Members thereof became
vested in it; it was thereupon entitled to invoke the jurisdiction of
this Court, not only in relation to disputes thereafter arising between
itself and the Administering Authority concerning alleged breaches
‘ of the provisions of the Trusteeship Agreement subsequently
occurring, but also in relation to any dispute thereafter arising
concerning breaches alleged to have occurred at any time ante-
cedently without limitation of time; that right is not restricted to
failure to perform obligations assumed by the Administering Power
under the provisions of the Trusteeship Agreement which confer
upon it and other States, Members of the United Nations, or their
nationals individual rights or interests but extends so as to cover
any, failure by the Administering Authority to observe its general
obligations towards the inhabitants of the trust territory and to-
wards the United Nations; that it is entitled to invoke the juris-
diction of this Court in respect of the provisions of the Agreement
relating to these last-mentioned obligations not only in defence of
the interests of the inhabitants of the trust territory but separately

62
74 JUDG. 2 XII 63 (SEP. OPIN, SIR PERCY SPENDER)

and independently in its own right; that it may seek from the Court
a declaratory decree that this or that breach has occurred and that
the Court is not only entitled to declare that such a breach occurred,
but is bound to do so notwithstanding that the trust agreement has
already come to an end and notwithstanding any resolution of the
General Assembly or any conduct on its part vis-à-vis the Ad-
ministering Authority in relation to the carrying out of the pro-
visions of the Trusteeship Agreement.

It becomes therefore necessary to interpret Article 19 of the
Trusteeship Agreement in order to ascertain what meaning is to be
accorded the words “any dispute whatever ... relating to ... the
provisions of this Agreement’, etc., and in particular to ascertain
whether the dispute alleged by the Applicant is one which falls with-
in the ambit of this Article.

The Context in which Article 19 Must Be Interpreted

It is not possible to interpret Article 19 as if it were a separate
instrument, comparable, for example, to a declaration of a State
accepting the compulsory jurisdiction of the Court under Article
36 (2) of the Statute of the Court, yet this, in my opinion, is pre-
cisely what is attempted to be done in the present case. What may
appear clear in such an exercise may become very unclear when
an adjudication clause is read in its context.

The context in which Article 19 must be read is the Trusteeship
Agreement of which it forms part, and the International Trustee-
ship System established by Chapter XIII of the Charter of the
United Nations of which the Trusteeship Agreement is part and
with which its provisions are interwoven. Moreover the provisions
of Chapter XIII of the Charter and the international system which
it established form the background and part of the surrounding
circumstances in which the Trusteeship Agreement was entered
into, without an appreciation of which it is, in my view, quite
impossible to ascertain the intention of the Parties to the Trustee-
ship Agreement in relation to Article 19.

It is convenient first to consider the provisions of Chapter XIII
of the Charter particularly since the Trusteeship Agreement in-
corporates and refers to such provisions, and contains, as do all
trusteeship agreements, an obligation on the part of the administer-
ing authority, which is indeed the dominant obligation to be found
in the Trusteeship Agreement, so to administer the territory as to
achieve the objectives of Article 76 of the Charter.

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75 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

Trusteeship System—Chapter XIII of the Charter

When the trusteeship was negotiated and entered into the
League of Nations had come to an end. À new organization had
been set up: the United Nations. To carry out the purposes of its
Charter there were established six principal organs, three of which
were the General Assembly, the Trusteeship Council and this Court.
The Charter called for the establishment of an international trustee-
ship system for the administration and supervision of such terri-
tories as might be placed thereunder by voluntary agreement.
“The functions of the United Nations with regard to trusteeship
agreements’’—except such as might relate to strategic areas—
including their approval, were exercisable by the General Assembly
and by the General Assembly alone’. The Trusteeship Council,
operating under the authority of the General Assembly was charged
with the duty of assisting the General Assembly in carrying out the
functions of the United Nations, including that of the supervision
of the administration of the Trust Territory. It was (so to speak) the
organ established to police the execution of the provisions of the
Trusteeship Agreement to ensure that the basic objectives of the
Trusteeship System in respect of each Trusteeship Agreement were
achieved, reporting from time to time direct to the General Assem-
bly on the discharge of its duties.

The conclusion must be that the Charter contemplated that these
two principal organs—the General Assembly and the Trusteeship
Council—and only these two organs should police the execution
and carrying out of the objectives of the International Trusteeship
System and of the provisions in any Trusteeship Agreement
directed to this end, and by their supervision of the administration
of territories by the Administering Authorities and of the obligations
undertaken by them in Trusteeship Agreements, by questionnaires
formulated by the Trusteeship Council on the political, economic,
social and educational advancement of the inhabitants of each
Trust Territory within the competence of the General Assembly (to
which questionnaires the Administering Authorities were bound to
respond), by scrutinising the answers thereto, by considering the
reports submitted by Administering Authorities, by accepting
petitions, by periodic visits to the Trust Territories and by other
action taken in conformity with the terms of Trusteeship Agree-
ments, to ensure that the obligations of each Administering Au-
thority in relation to the achievement of the basic objectives of the
Trusteeship System were being fulfilled.

It must have been evident, even to those unacquainted with the
difficulties of administering Trust Territories, that problems of
administration and differences of opinion in relation thereto would,

1 Article 85 of the Charter.
64
76 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

at times, inevitably occur between the United Nations and the
Administering Authorities or, at least, would be likely to occur, and
that, whatever they were, they were to be resolved, so far at least
as the Charter contemplated, through the machinery of the Trustee-
ship Council and the General Assembly and in no other way.

The Charter provided its own machinery for securing the compliance
by the Administering Authorities of their respective obligations in
relation to the objectives of the Trusteeship System. There is no
room for any contention that it was inherently necessary or essential
that a Trusteeship Agreement should contain an adjudication clause
to secure in the last resort or at all compliance by the Administering
Authorities of the obligations undertaken by them in the interests
of the peoples of the various Trust Territories.

Thus, all of the functions of the United Nations with regard to
Trusteeship Agreements for all areas not designated as strategic
areas, the supervision of the administration of the Trust Territories,
the policing of the obligations owed both to the United Nations
itself and the peoples of the territory, as set forth in the provisions
of any Trusteeship Agreement to be entered into, were vested
exclusively in the General Assembly. Though an organ of the
United Nations, no function in relation to administration or
supervision or the enforcement of any obligation undertaken by the
Administering Authority or any judicial protection of the interests
of the inhabitants was assigned to the Court by Chapter XIII.

By provisions to be found elsewhere in the Charter, the General
Assembly or the Trusteeship Council could, if it thought fit, seek
an advisory opinion of the Court. It was not bound to do so and,
if it did, it was not bound thereby; all the functions of the United
Nations in relation to Trusteeship Agreements entered into by it
were for the General Assembly and it alone to exercise. Whether an
advisory opinion was sought or not in no way affected the plenary
powers of the Assembly to exercise, in relation to any Trusteeship
Agreement, all the functions of the United Nations.

It is now necessary to consider the provisions of Article 76 of the
Charter the achievement of the objectives of which the Adminis-
tering Authority in the instant case undertook by Article 3 of the
Trusteeship Agreement. The central provision of this Article in
the context of present consideration is sub-clause (2) thereof, which
provides that one basic objective of the International Trusteeship
System was—

“to promote the political, economic, social and educational ad-
vancement of the inhabitants of the trust territories, and their
progressive development towards self-government or independence

1 Article 96 of the Charter.
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77 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

as may be appropriate to the particular circumstances of each
territory and its peoples and the freely expressed wishes of the
peoples concerned, and as may be provided by the terms of each
trusteeship agreement’’.

The Applicant complains, as has been noticed, that one of the
obligations which the Administering Authority failed to discharge
was that contained in Article 3 of the Trusteeship Agreement. If
Article 19 of the Trusteeship Agreement gives a right to a State to
invoke the jurisdiction of the Court on the interpretation of or
application of Article 3 of the Agreement, this would extend to any
alleged breach of the Article alleged to have occurred at any time
during the duration of the Trusteeship Agreement.

The obligation of the Administering Authority to achieve the
objective set out in Article 76 (b) of the Charter involves consider-
ations which, on their face, are peculiarly for political appreciation,
and these, so far as the Charter contemplated, were, as has been
observed, for the General Assembly, with the assistance of the
Trusteeship Council, to evaluate. It is not readily apparent what
legal norms could be applied to determine whether or not the
Administering Authority had breached Article 3 of the Trusteeship
Agreement; what legal norms, for example, could be applied by
the Court at any given point of time during the currency of the
Trusteeship Agreement and in a variety of circumstances to a situ-
ation in which it was alleged by a State invoking the provisions of
the adjudication clause that the Administering Authoritv had
failed “to promote the political ...advancement of the inhabitants

. as may be appropriate to the particular circumstances of each
territory’. The words of Article 76 (6) have a special political
content; they appear to call for political evaluation and deter-
mination only. Certainly it is apparent that, so far as the Charter
contemplated, it was a matter exclusively for political evaluation
by an organ, which, both by its composition and the machinery
provided by the Charter, was equipped to discharge that task. Yet
if the Applicant’s contention in this case were correct, the Court was
intended by the adjudication clause, at the instance of any State,
a Member of the United Nations, to pronounce upon these very
matters, and to do so irrespective of any determination made in
respect thereof by the General Assembly itself or any view which
it held or might hold.

As was said in the Joint Opinion in the South West Africa cases
when referring to the words contained in the Mandate Instrument
(Article 2 thereof), under which the Mandatory Power undertook
“to promote to its utmost the material and moral well-being and the
social progress of the inhabitants ...’’, there is hardly a term in
Article 76 (6) of the Charter “which could not be applied in widely
different ways to the same situation or set of facts, according to
different subjective views as to what it meant, or ought to mean...

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They involve questions of appreciation rather than of objective
determination” such as a legal determination necessarily involves.
“The proper forum for the appreciation and application of a
provision of this kind is unquestionably a technical or political one,
such as... the Trusteeship Council and the Assembly of the United
Nations '.”’ There can be no doubt that the General Assembly and
the Trusteeship Council constituted the forum exclusively contem-
plated by the Charter for the determination of the matters referred
to in Article 76 (8) of the Charter. What was said in the Joint
Opinion applies with equal force to the consideration of Article 3
of the Trusteeship Agreement and, as will subsequently appear, to
other Articles thereof, the breach of which is complained of by the
Applicant.

To accord to Article 19 the comprehensive meaning contended
for by the Applicant permitting it to challenge in this Court,.by way
of a dispute between itself and the Administering Authority, the
General Assembly’s supervision of the Administering Authority’s
obligations to the people of the Trust Territory, there must be
presumed an intention on the part of the United Nations acting
through the General Assembly to accord a right to any State to
challenge as and when 7 thought fit, as between the Administering
Authority and itself, whether in law the objectives of Article 3 had
been or were being achieved by the latter. It would seem somewhat
odd that the General Assembly as a matter of deliberate intent
should accord such a wide and unfettered right to any State.

It is no answer to this observation to say that such a challenge
under the provisions of the adjudication clause is not, in law, a
challenge to the competency of the General Assembly, and that no
dispute between the State and the General Assembly is involved,
as the Applicant in this case has been at great pains to assert. In
practice it would be well-nigh impossible to separate an Administer-
ing Authority’s obligation to comply with the provisions of Article 3,
and complementary Articles, from the duty of supervision which
the General Assembly was called upon to discharge to ensure those
obligations were complied with. The question we are concerned with
is whether the adjudication clause was intended by the Parties there-
to to accord such a right to States in their individual capacity.

It would seem indisputable that the General Assembly, exercising
all the functions of the United Nations in relation to any trustee-
ship agreement, had the authority, binding upon its Members, to
determine when the objectives of the Trusteeship System as set
forth in Article 76 (6) of the Charter had been achieved and the
freely expressed wishes of the people concerned had been ascer-
tained, and with the consent of the Administering Authority, to

11C.J. Reports 1962, at 466-467.
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79 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

bring the Trusteeship Agreement to an end, as indeed it did in this
case. Yet if the Applicant’s contention is correct, it is entitled in this
case to seek the adjudication of this Court on whether, as between
itself and the Administering Authority, the objectives of the
Trusteeship System as set out in Article 76 (b) of the Charter were
in fact achieved, and whether the freely expressed wishes of the
people concerned were in fact expressed or ascertained; in short,
that it had two forums where it could challenge the conduct of the
Administering Authority—and the General Assembly—namely
the General Assembly itself, and this Court. It is true that the
challenge in this Court is not one in which the United Nations
is directly a party, but there can be no doubt whatever that a
decision of the Court in the Applicant’s favour would adversely and
seriously reflect upon the past supervision of the General Assembly
and its action in bringing the Trusteeship Agreement to an end and,
as well, the manner in which it discharged its duties in relation to
the inhabitants of the Territory whose interests it was bound to
protect.

If the interpretation which should properly be placed upon
Article 19 does give such a comprehensive right to a State, it is of
no moment that the General Assembly and the Administering
Authority did not when the Trusteeship Agreement was entered
into, direct their minds to every contingency in which the right
might be exercised. If however the interpretation contended for by
the Applicant is correct, it assumes that the General Assembly and
the Administering Authority, fully aware that between them they
were in control of the carrying out of any trusteeship agreement
and were, whilst the same remained yet to be performed, competent
to agree between themselves that the obligations of the Administering
Authority in relation to the peoples of the Territory were being
fulfilled, either wholly or in certain particular respects, and com-
petent to bring the Trusteeship Agreement to an end, when it was
determined that the objectives of Article 76 (b) of the Charter had
been achieved, none the less intended to allow an uncontrolled right
to any State to canvass before the Court decisions already reached
between the General Assembly and the Administering Authority, or
about to be reached between them. This assumption could not
lightly be made. It is nothing to the point to say that the field in
which the General Assembly operated was a political one whilst the
functions of the Court are judicial. The General Assembly dominated
the situation at all times and had authority of its own. It would
seem unlikely that it would have been prepared to allow that
authority to be canvassed in any way, directly or indirectly, at the
will of any State without, at least, making its intention manifestly
clear, and not left to the interpretation of a jurisdictional clause.
Some other trace of its will might reasonably be expected to
have remained to bear witness. None is. It is equally unlikely
that an Administering Authority, not bound to agree to any

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judicial function being discharged by this Court, would have
been prepared to submit to the position in which, having to satisfy
the General Assembly that it was carrying out or had achieved
the objectives of Article 76 (0) of the Charter, its administration
would also be subject to examination and adjudication by this Court
at the instance of any State or States, irrespective of whether or
not the General Assembly was satisfied with the manner in which
that administration was being or had been carried out.

The Trusteeship Agreement

The provisions of the Trusteeship Agreement which consists of
19 clauses fall into two categories, one of which relates solely to the
achievement of the objectives of the Trusteeship System, the other
to provisions conferring specific individual rights upon States or
upon their nationals.

In the first category of provisions are the following:

Article x defines the Territory; Article 2 designates the Adminis-
tering Authority responsible for the administration of the Territory;
Article 3, the dominant Article of the whole Agreement, contains an
undertaking by the Administering Authority “to administer the
Territory in such a manner as to achieve the basic objectives”
laid down in Article 76 of the Charter and to collaborate fully with
the General Assembly of the United Nations and the Trusteeship
Council in the discharge of their functions; Article 4 provides that
the Administering Authority is to be responsible for the peace,
good government and defence of the Territory and for ensuring
that it shall play its part in the maintenance of international
peace; Article 5 provides that the Administering Authority, for
all purposes of the Agreement, should have certain powers of
legislation and administration; Article 6 contains a stipulation that
the Administering Authority should promote the development of
“free political institutions suited to the Territory” and to this end
should assure to inhabitants a progressively increasing share in the
administrative and other services of the Territory, should develop
their participation in advisory and legislative bodies ‘‘as may be
appropriate to the particular circumstances of the Territory and
its people” and should take all other “‘appropriate measures with a
view to the political advancement of the inhabitants in accordance
with Article 76 (6)” of the Charter; Article 7 contains an under-
taking by the Administering Authority to apply in the Territory,
inter alia, recommendations drawn up by the United Nations or its
specialized agencies “which may be appropriate to the particular
circumstances of the Territory’’ and conduce to the achievement of
the basic objectives of the Trusteeship System; Article 8 contains
safeguards of the native population in relation to land and natural
resources; Article 12 contains an obligation by the Administering

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Authority “as may be appropriate to the circumstances of the
Territory” to continue and extend elementary education designed
to abolish illiteracy and provide such facilities for secondary and
higher education as “may prove desirable or practicable” in the
interests of the inhabitants; Article 13 contains, inter alia, an
undertaking to ensure freedom of conscience and religion in the
Territory; Article 14 contains a guarantee by the Administering
Authority of freedom of speech, of press, of assembly and of
petition to the inhabitants of the Territory; Articles 15 and 16 are
machinery provisions to ensure that the objectives of the Trusteeship
System are achieved such as, for example, an obligation of the
Administering Authority to make an annual report to the General
Assembly on the basis of the Trusteeship Council’s questionnaire;
Articles 17 and 18 are ancillary in nature. |

The different provisions of this category either contain or relate
to undertakings entered into by the Administering Authority with
the United Nations which concern themselves with the interests of
the inhabitants and in particular the achievement of the objective
indicated in Article 76 (6) of the Charter. They create obligations
owing by the former to the latter but none owing to States in their
individual capacity. The supervision of the Administering Author-
ity’s administration of the territory in giving effect to the objectives
of the International Trusteeship System and the discharge of these
obligations as contained in them fall, so far as contemplated by the
Charter, within the functions of the United Nations exercised by
the General Assembly. These provisions produced their effects
for all States, Members of the United Nations, and in this sense
each had an interest in their performance. This however was a
political interest only—no matter what the nature or immediacy
of the interest—to be expressed through the General Assembly of
the United Nations. The general obligations contained in this
category of provisions were owed to the United Nations in its
organic capacity in the interests of the inhabitants of the Territory ;
they were not owed to States in their individual capacity. No legal
right or interest is given individually to States, Members of the
United Nations, in their performance—unless the adjudication clause,
of itself, must be interpreted to give such an interest.

The obligations of the Administering Authority undertaken by
it to the United Nations are expressed in broad terms and often, as
will be seen, in words of very general political content. The pro-
uiotion of free political institutions suited to the Territory, and
measures to that end as may be appropriate to the particular
circumstances of the Territory and its people, the provision of
facilities which may prove desirable or practicable, the application
of recommendations of the United Nations, etc., which may be

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appropriate, etc., and conduce to the achievement of the objectives
of the Trusteeship System, etc., relating to different obligations
undertaken by the Administering Authority appear to be matters
for political evaluation, and difficult, to say the least, of objective
judicial adjudication. Any disputes which might arise in the United
Nations as to whether or not the Administering Authority was
discharging its obligations, so far as the provisions of the Trusteeship
Agreement reveal—apart from whatever Article 19 was intended
to provide—appear to be for determination within the General
Assembly and nowhere else.

The second category of provisions are those under which the
Administering Authority agreed with the United Nations to confer
certain legal rights or interests upon States (or their nationals) in
their individual capacity, thus giving rise to correlative obligations
on the part of the Administering Authority vis-a-vis States, Members
of the United Nations, in their individual capacity. The distinction
between the two categories is most evident.

Thus Article 9 confers a number of such rights relating to equal
treatment on social, economic, industrial and commercial matters
for all Members of the United Nations and their nationals and
provides that “the rights conferred! by this Article on nationals of
Members of the United Nations apply equally to companies and
associations controlled by such nationals...in accordance with
the law of any Member of the United Nations”. By Article 10
measures to give effect to these rights are made subject to the duty
of the Administering Authority under Article 76 of the Charter,
etc., and Article 11 provides that nothing in the Trusteeship Agree-
ment “shall entitle! any Member of the United Nations to claim for
itself or its nationals ... the benefits! of Article 9’ in any respect
in which it does not give equality of treatment to inhabitants,
companies and associations of the Territory.

Whereas the first category of provisions appear peculiarly for
political evaluation, the second category clearly relate to provisions
relating to rights of States or their nationals which admit of judicial
interpretation and application,

*
* *

It is contended by the Applicant that, though under the provisions
of the Charter it may not have been essential to the effective
working of the Trusteeship System, that there should be a compe-
tence in the Court to adjudicate on any alleged breach of a Trustee-

1 Emphasis added.
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83 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

ship Agreement in respect of the provisions thereof concerned with
the social, economic, educational and political development of the
people to independence or self-government, it was none the less
open to the parties to a Trusteeship Agreement to provide that the
Court should have such a competence. This, it is said, the Parties
intended by Article 19 of the Trusteeship Agreement to do—indeed,
that this was the prime purpose it was intended to serve. This is but
a bare assertion of what in truth has to be established. There is not, in
my view, the slightest reliable evidence, unless it be Article 19 itself,
which is the subject of interpretation, to support this assertion.

The Purpose Article 19 Was Intended to Serve and its Interpretation

Article 19 appears to be no more than a jurisdictional clause to
provide a tribunal for the adjudication of certain disputes, and in
its essentials it is cast in a common form. Such a clause would
normally refer to disputes which relate to rights and obligations
between the parties which exist and are to be found outside the
terms of the clause itself; disputes in which a State claims to be
aggrieved by the infraction, on the part of another State, of an
existing right or interest otherwise possessed by it.

Such a clause, in short, normally does not confer any additional
right or interest upon a State other than a right to have recourse
to the tribunal once the conditions imposed by the clause are com-
plied with. A dispute within the meaning of such a clause normally
would relate to a legal right or interest in the State claiming to
be aggrieved, which resides or is to be found elsewhere than in
such a clause itself. It would indeed be unusual to find in a juris-
dictional clause a substantive right which itself could be made the
subject of a dispute.

In the present case, rights and obligations as between the Appli-
cant and the Respondent do exist outside the terms of the clause
itself; they are to be found in the provisions of the Trusteeship
Agreement which specifically confer individual rights upon the
Applicant or its nationals with corresponding obligations upon the
Administering Authority. The clause refers obviously to disputes
relating thereto. Article 19 accordingly provides a tribunal for
the adjudication of such disputes. Apart, however, from the right
of recourse to the Court so provided, Article 19 does not provide,
certainly not im terms, for any legal right or interest in a State
beyond those which may be found elsewhere in other provisions
of the Trusteeship Agreement.

The Applicant’s contention would, if it were accepted, compel
an interpretation of Article 19 giving it a meaning which normally
such an adjudication clause would not bear. In truth the contention
involves reading into the Article by implication a grant to States,
in their individual capacity, of a substantive right in the perform-
ance of provisions of the Trusteeship Agreement, which them-

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selves by their terms confer no individual legal right or interests
upon States. Such an interpretation could only be justified if it
could be established that it was strictly necessary so to do to
give effect to the manifest intention of the parties. But where is
that intention manifest? To establish it one would need to look
outside the clause itself, which is the subject of interpretation,
since normally such a jurisdictional clause confines itself to the
conferment of an adjective or procedural right only, and the means
by which it may be exercised; in brief a right of recourse to a tri-
bunal in relation to a dispute concerning legal rights or interests
to be found outside the perimeter of the clause itself.

There is no reliable piece of evidence outside the clause itself
of any such intention on the part of the United Nations and the
Administering Authority. In truth the evidence is the other way.
In my opinion it is not possible to imply in Article 19 the confer-
ment of any substantive right upon any State or read it as so doing.
If a State, a party to a dispute, possesses, outside of Article 19 it-
self, a substantive individual legal right or interest an infraction
or threatened infraction of which leads to a dispute, that dispute is
one within the meaning of the Article. If the State does not possess
any such substantive individual legal right or interest, no dispute
within the meaning of Article 19 could arise.

The Applicant’s contention however is that the scope and pur-
pose of the Article—how that scope and purpose is to be ascer-
tained except from the bare words of the Article itself is left rather
in the air—must be understood to have accorded it an individual
legal right or interest in the observance by the Administering
Authority of its obligations towards the inhabitants and towards
the United Nations which are contained in the provisions of the
Trusteeship Agreement (thus forming the basis of a dispute be-
tween itself and the Administering Authority) although those
provisions do not, in themselves, accord to the Applicant any such
right or interest.

Article 19, in my opinion, must be interpreted in a sense which
reconciles the rights and obligations of the Applicant and the
Respondent. These rights and obligations—whatever they may
be—reside not in Article 19 itself but elsewhere in the provisions
of the Trusteeship Agreement. Read in their context, the Article
refers to disputes relating to the interpretation or application of
the provisions of the Agreement which confer individual rights
on a State or its nationals. So read, it makes sense. In my view,
read in its context, it refers to such disputes only.

*
* *

This view appears strikingly confirmed by facts known to the
Sub-Committee of the Fourth Committee of the General Assembly

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appointed to examine eight draft trusteeship agreements (including
that thesubject of present consideration) which later were approved
by the General Assembly.

The draft first examined by that Sub-Committee was that relat-
ing to Western Samoa. Its provisions were exhaustively scrutinized,
as indeed were those of all the drafts; the New Zealand draft on
which most of the discussion took place was, however, taken as a
basis for the examination of all other draft trusteeship agreements 1.

The Western Samoa draft contained the adjudication clause.
In the course of considering a modification to the clause proposed
by the delegate of China (but not adopted) at its meeting on 20 No-
vember 1946, such attention as was given to this clause by the
Sub-Committee (and so far as the Summary Record reveals, very
little was, and none in my opinion on the purpose it was intended
to serve) centred around the question whether if a dispute arose
between the Administering Authority and a State a Member of the
United Nations it should not, at first, be referred to the Trusteeship
Council 2. A draft Trusteeship Agreement relating to New Guinea
was also, with six other draft agreements, before the Sub-Commit-
tee, all six of which contained the adjudication clause. The dele-
gate of Australia during discussion referred to the fact that there
was no adjudication clause in the New Guinea draft. An obliga-
tion to submit to this Court a dispute between itself and another
State was, the delegate of Australia said, covered by its acceptance
of the compulsory jurisdiction of the Court by a declaration under
Article 36 of the Court’s Statute 2.

Whatever its extent, that obligation was thus limited to the
terms of such declaration and governed by it.

It was thus apparent to the Sub-Committee that any dispute
between Australia as an Administering Authority and another
State in relation to the interpretation or application of any pro-
vision of that Trusteeship Agreement would, if this statement was
accepted as an equivalent of the adjudication clause which appeared
in all the other drafts, or a reason for its omission, be subject not
only to the terms of Article 36 of the Statute and the terms of
Australia’s declaration of acceptance thereunder, but could only
relate to such provisions (if any) of that Trusteeship Agreement—
with an adjudication clause omitted—whereunder some individual
legal right or interest was conferred upon a State a Member of the
United Nations. Such a legal right or interest could not find its
basis in a non-existent adjudication clause and could therefore
only have existence apart therefrom. In short, whether any State
did or did not have an individual legal right or interest in the per-

1 United Nations Official Record of 2nd part of 1st Session of General Assembly,
Fourth Committee, Trusteeship, Part II, pp. 2-3.
2 Ibid., at pp. 85 et sqq.

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formance by the Administering Authority of any obligation con-
tained in the New Guinea Trusteeship Agreement and a right to
invoke the jurisdiction of this Court in a dispute between it and
the Administering Authority relating to the interpretation or
application of a provision of that Trusteeship Agreement would
need to be determined, exclusively from the terms of the Agree-
ment themselves (with the adjudication clause omitted), and the
terms of Australia’s acceptance of the Court’s jurisdiction under
Article 36 of the Court’s Statute !.

Accordingly if the statement of the Australian delegate was
accepted by the Committee as explaining the absence of an ad-
judication clause in the draft Trusteeship Agreement relating to
New Guinea, no dispute relating to the Trusteeship Agreement could
be adjudicated upon by this Court unless the provisions of the
Trusteeship Agreement themselves gave an individual right or
interest to a State inthe performance of all or any of its provisions,
and then only to the extent it fell within the ambit of Australia’s
declaration of acceptance of this Court’s jurisdiction.

If then the statement of the Australian delegate was so accepted
by the Sub-Committee, it is hardly conceivable that the Sub-
Committee would have thought that the presence of the adjudi-
cation clause was necessary to give or that it gave any rights or
interests to any State beyond such as might be found within the
provisions of a Trusteeship Agreement outside an adjudication
clause itself.

If, on the other hand, as will subsequently be considered, the
Sub-Committee did not accept the statement of the delegate of
Australia as the equivalent of the adjudication clause, or as ex-
plaining its absence, and if, as is claimed (and as was held by this
Court in the South West Africa cases to be so in respect of mandate
instruments), the all-important scope and purport of the clause must
be understood to have accorded to a State, a Member of the United
Nations, a legal right or interest in the observance by the Ad-
ministering Authority of its obligations towards the inhabitants
contained in the Trusteeship Agreement, it is beyond understanding

? Australia’s obligation to submit any dispute to the jurisdiction of this Court
was governed by Article 36 (5) of this Court’s Statute, in virtue of a declaration to
the Permanent Court of International Justice dated 21 August 1940, which con-
tinued in force until 6 November 1954 when Australia made its first declaration
of acceptance of this Court’s jurisdiction under Article 36 (2) of the Court’s Statute.

Its declaration of 1940, which was on the basis of reciprocity, was for a period
of five years (which had in 1946 already expired) and thereafter until notice of
termination. Thus it could have terminated its acceptance at any time, or renewed
it subject to special conditions and exceptions. Its acceptance of the Court’s
jurisdiction could accordingly only apply to a limited number of States, Members
of the United Nations, so creating inequality as between them; moreover, it could

,only apply to disputes which fell within the content of Australia’s declaration if it
continued in force, or any declaration which replaced it.

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why, in the meticulous scrutiny to which each Trusteeship Agree-
ment was subjected by the Sub-Committee, no insistent attempt
was made, when all other Articles thereof were settled, to have
an adjudication clause included in the Australian draft Trusteeship
Agreement, why no mention of its omission was contained in the
Report of the Sub-Committee to its parent Committee, or in the
Report of that Committee to the General Assembly or in the debates
in the General Assembly itself.

However the matter is looked at it is, I think, evident that if
there is not to be found in the body of a Trusteeship Agreement
{that is, in the provisions thereof, apart from the adjudication
clause itself) provisions conferring upon a State, a Member of the
United Nations, a legal right or interest in the performance by
the Administering Authority of some obligation undertaken by it
under one or more of its provisions—the adjudication clause would
not itself confer any right on a State to have interpreted or applied
by this Court any provision of the trusteeship agreement. The oper-
ation of the clause is limited, subject to the conditions stipulated
therein, to providing a tribunal to which recourse may be had by a
State in relation to any dispute relative to the interpretation or
application of provisions of the trusteeship agreement which in
themselves accorded an individual legal right or interest in the
performance of obligations of the Administering Authority con-
tained therein +.

1 By article 76(d) of the Charter it was provided that one of the objectives of
the International Trusteeship System was—
“to ensure equal treatment in social, economic and commercial matters for
all Members ... subject to the provisions of Article 80”.

Article 80 provided that—

“Except as may be agreed upon in individual trusteeship agreements ...
nothing in this Chapter shall be construed in or of itself to alter in any manner
the rights whatsoever of any States ... or the terms of existing international
instruments...”

Every Trusteeship Agreement approved by the General Assembly contained the
central obligation of the Administering Authority to administer in such a manner
as to achieve the basic objectives laid down in Article 76 of the Charter. Though in
my opinion the undertaking of the Administering Authority in respect to this
obligation, given to the United Nations, did not confer upon any State or its nationals
any individual legal right or interest in its performance either in relation to objective
76 (d) of the Charter or otherwise (an undertaking to the United Nations on the
part of the Administering Authority to achieve general objectives), it may be open
to the faint argument that the undertaking read together with Article 76 (d) of
the Charter did confer such a right or interest by necessary implication. Whatever
be the correct view, it still remains true that the adjudication clause is limited to
disputes relating to such provisions of the Trusteeship Agreement whereunder
such rights or interests are conferred upon a State or its nationals.

The Articles in certain of the Trusteeship Agreements in which individual legal
rights or interests in States were expressly conferred upon States or their nationals
(such as are to be found in Article 9 of the Trusteeship Agreement in the instant
case), though they relate in general to the broad objective stated in Article 76 (d)

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*
* *

There are, however, reasons independent of those already
advanced which compel an interpretation adverse to that contended
by the Applicant. The Applicant, relying as has been noted upon
the words “any dispute whatever... relating to the provisions
of the Trusteeship Agreement” and the Court’s statement in the
South West Africa cases that these words admit of no exception,
claims that the natural and ordinary meaning of these words exclude
any other interpretation than that which it asserts they bear.

Although the cardinal rule of interpretation is that words are
to be read, if they may so be read, in their ordinary and natural
sense, this rule is, as I have had occasion before to observe, some-
times a counsel of perfection, forambiguity may be hidden in the
plainest and most simple of words even in their ordinary and natural
meaning. In the context of Chapter XIII of the Charter and the
provisions of the Trusteeship Agreement itself, Article 19 is not by
any means as clear as it is contended by the Applicant +. On close
examination it presents an important ambiguity, as did the com-
parable clause in the South West Africa cases, which calls for
an interpretation which goes beyond a bare examination of the
words to be found in Article rg detached from its context. That
ambiguity is introduced by the words ‘if it cannot be settled by
negotiation or other means”.

of the Charter, were the subject of prolonged and intensive negotiation when the
draft agreements were under examination by the Sub-Committee of the Fourth
Committee. These provisions specifically conferred rights: such rights were removed
from any limitations under Article 80 of the Charter; they extended the field to
include industrial matters as well as matters social, economic and commercial;
they made provisions against the granting of general monopolies subject to certain
exceptions in favour of the Administering Authorities (see Article 10 of the present
Trusteeship Agreement), and in some made the entitlement of the benefits of the
tights conferred subject to reciprocal equality of treatment by other States (see
Article 11 of the present Trusteeship Agreement and compare Article 8 of the
Trusteeship Agreement relating to French Cameroons). Moreover in the Trusteeship
Agreement relating to Western Samoa, a right—the missionary right—was conferred
upon nationals of States, Members of the United Nations, which seems to have
little or nothing to do with the objective indicated in Article 76(d) of the Charter.

1 Constantly it is asserted that the language of the adjudication clause is clear,
precise and unambiguous. It is not without significance that during the discussion
in the Sub-Committee of the Fourth Committee on the Western.Samoan draft
the view of at least the delegate of one State was that it was not clear whether
the adjudication clause obliged the State in dispute with the Administering Author-
ity also to submit the dispute to this Court, nor whether the adjudication clause
automatically referred a dispute to the Court or whether it was necessary first that
a special agreement should be entered into which was precisely what the Applicant
in this case in its letter of 1 May 1961 asked the Respondent to agree to).

However this may be, it would seem to indicate that the language of the ad-
judication clause, clear and unambiguous as it claimed to be, may not be so.

77
89 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

These words, of themselves, provide the key to the interpretation
of Article 10, in particular the key to the discovery of the meaning
of the words “any dispute whatever”.

The condition “if it cannot be settled by negotiation or other
means” is one which applies to all disputes within the meaning
of the clause and thus characterizes the disputes which fall within
the ambit thereof. As Judge Moore pointed out in the Mavrommatis
Palestine Concessions case (P.C.I.J., Series A/B, Judgment No. 2
at p. 62) this condition is to be found in a large number of arbitration
treaties entered into over the years both before and since the
mandate instruments and trusteeship agreements ‘as a vital
condition of their acceptance and operation”. The words do not
mean, as he pointed out, that the dispute “must be of such a nature
that it is not susceptible of settlement by negotiation’; this would
destroy the effectiveness of the condition.

Read in their present context they necessarily imply, in my
opinion, that a dispute within the meaning of Article 19 must be
of a class, character or type which is capable of being settled between
the parties thereto in a final manner and between parties having
the competence so to do. Whatever is the meaning to be given
to the words “or other means’’—and this will be considered
later—they must, in my view, mean that the parties to the dispute
are able to choose and agree upon the means to be employed to
settle the dispute finally, and competent to bind themselves to the
result of the means employed to achieve a settlement. Thus the
dispute must be one which each is competent to settle between
itself and the other State or States whatever the means employed
so to do.

A dispute which relates to individual interests or rights of a
State or its nationals conferred by the provisions of the Trusteeship
Agreement is inherently capable of final settlement between the
Administering Authority and a State, a Member of the United
Nations !; but a dispute which is not of that class, character or type
but on the contrary is of a class, character or type which relates
to the performance of obligations stipulated therein undertaken by
the Administering Authority with the United Nations, in the interests
of the peoples of Trust Territories, and in defence of those interests,
to achieve the advancement and well-being of the peoples of the
Trust Territory and their development to the ultimate goal of
independence or self-government, in accordance with the objectives
of the International Trusteeship System established by the Charter
of the United Nations, is inherently incapable of settlement by any
means between the Administering Authority and any other State.

These last-mentioned obligations, which hereafter are sometimes
referred to as general obligations, directed to promotion of the

1 Any such right might presumably be renounced by a State (Mavrommatis
Concessions, P.C.1.J., Series A/B, Judgment No. 2 at p. 30}.

78
go JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

political, economic, social and educational advancement of the
inhabitants and their progressive development toward self-govern-
ment or independence; cannot of their very nature be affected,
altered, modified, amended or compromised in any manner whatever
without the consent of the United Nations. It would not be compe-
tent, in my opinion, for the Administering Authority to agree with
another State that any one of these general obligations should in
any particular circumstances be interpreted or applied in a certain
manner. In my opinion the meaning of the words ‘any dispute
whatever’, conditioned by the words “‘if it cannot be settled ... etc.”,
between the parties, read in their context refer to such disputes
in relation to the interpretation and application of the provisions
of the Trusteeship Agreement, which of their nature, are of a class
character or type which the parties are competent to settle between
themselves. All disputes whatever relating to the interpretation or
application of provisions of the Trusteeship Agreement which are
of that class, character or type, but only such disputes as are, are
those to which Article 19 has application.

*
* *

The task of the Court is to ascertain the intention of the United
Nations and the Administering Authority when this Agreement
was entered into. It is indisputable, I think, that the General As-
sembly, acting within its authority under the Charter, and the
Administering Authority, were entitled, under the terms of the
Charter and as the parties to the Trusteeship Agreement, to inter-
pret the provisions thereof relating to the general obligations of the
Administering Authority, and apply them as they agreed between
themselves. It would seem somewhat extreme to ascribe to the
United Nations—acting through the General Assembly—quite
apart from any intention of the Administering Authority so to do,
an intention to grant to any State a right, at its own unrestrained
will, to challenge judicially an interpretation or application of the
Trusteeship Agreement which the General Assembly (the organ
chosen by the Charter to exercise all the functions of the United
Nations relating to the Trusteeship Agreement) and the Adminis-
tering Authority, agreed between themselves, gave effect to the
Agreement and so satisfied its requirements.

* * *

These considerations alone compel me to the conclusion that
Article 19 should be interpreted as applying exclusively to disputes
relating to individual rights or interests accorded to a State, or its
nationals, by provisions of the Trusteeship Agreement.

*
* *

79
91 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

By way of parenthesis it should be added that the words “or
other means” (“if it cannot be settled by negotiations or other
means’’)—words which did not appear in the Mandate Instru-
ments—do not, for reasons already advanced, affect the conclusion
arrived at on the interpretation to be accorded to Article 19. A few
words, however, on the meaning to be accorded these words ‘‘or
other means” may conveniently be inserted.

The words, in my opinion, must be construed ejusdem generis.

There is some confirmation alzunde for this view.

Among eight Trusteeship Agreements approved by the General
Assembly on 13 December 1946 there is to be found one and one
only in which the adjudication clause varied in verbiage from that
contained in each of the others. Yet it could not be disputed, I
think, that the purpose and scope of each was precisely the same.
In the Trusteeship Agreement relating to Western Samoa the rele-
vant words are “‘by negotiation or similar means”. The meaning
of the words employed in the other Trusteeship Agreements should
be interpreted in the same sense.

*
* *

The Surrounding Circumstances when the Trusteeship
Agreement was Entered inio

That the Applicant’s contention on the interpretation to be
accorded Article 19 is unfounded is also, I think, evident from the
surrounding circumstances at the time the Trusteeship Agreement
was entered into, some of which have already been referred to.

It will be recalled that the Mandates were divided into three
categories referred to generally as A, B and C Mandates depending
upon the state of political development which they had achieved.
The people in the “C’’ Mandated Territories were, due to their
remoteness from the centres of civilization and other factors, for
the most part in the most backward state of development. One
would think that if the United Nations, as one of the parties to
the Trusteeship Agreements (the great majority of which, inclu-
ding that in the present case, were negotiated and entered into
at the same time in 1946), intended that an important, if not the
overriding purpose of the adjudication clause we are concerned
with was to provide for judicial adjudication by this Court at the
instance of any State, a Member of the United Nations, to defend
or assert the interests of the peoples of these territories in order to
protect them against breaches of obligations undertaken by the
Administering Authority to these peoples, such a provision as
Article 19—which had appeared in all the mandate instruments—
was very much more advisable or desirable to be inserted in Trus-
teeship Agreements which related to previous “‘C’’ Mandates than

80
02 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

would be the case in Trusteeship Agreements relating to previous
‘“B” mandated territories whose people were more advanced in
political development. Certainly it could not with reason be con-
tended it was any the less so. Yet the significant fact is that of
the Trusteeship Agreements dealing with the four previously
mandated ‘“C” territories only one contained any adjudication
clause}. This fact bears directly upon the purpose the adjudication
clause was intended to serve in the Trusteeship Agreements in
which it did appear. In the Trusteeship Agreements where the ad-
judication clause does not appear its omission was not as we have seen
due to mistake or oversight, it was omitted deliberately. The omis-
sion of the adjudication clause in these three Trusteeship agreements
does not square with the contention that the purpose of the clause
was to secure adjudication by this Court at the instance of any State,
a Member of the United Nations, claiming that there had been, or
was continuing, a breach by the Administering Authority of any
of its obligations under the provisions of the Trusteeship Agree-
ment including those undertaken by the Administering Authority
which were concerned with the welfare and political advancement
of the inhabitants of the territory.

The obvious inference is that an adjudication clause was not
considered in these cases as serving any useful purpose. If this
inference is correct, as I believe it is, it would point clearly in the
direction that the purpose which the adjudication clause was to
serve, in such Trusteeship Agreements in which it did appear, was
not to accord to any State any right to invoke the jurisdiction of
the Court in relation to a dispute between itself and the Administer-
ing Authority on the interpretation or application of any of the
general provisions of the Trusteeship Agreement which were con-
cerned with the carrying out of the objectives of the Trusteeship
System in the interests of the indigenous population; it was to
serve quite a different purpose. It seems inescapable that the
purpose could only have been to provide a tribunal for the adjudi-
cation of disputes between the Administering Authority and a
State relating to provisions of the Trusteeship Agreements which
by their terms conferred individual rights upon States or their
nationals.

Thus the surrounding circumstances at the time the present
Trusteeship Agreement was entered into negative the interpreta-
tion of Article 19 contended for by the Applicant. The omission
of the adjudication clause in these three Trusteeship Agreements
is, I think, conclusive against the Applicant’s contention on the
meaning of Article 19.

1 The three in which it did not appear were those relating to New Guinea, Nauru
and the previous Japanese Mandate in the Pacific.

BI
93 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

The matter does not, however, rest here. On the same day, namely
13 December 1946}, the General Assembly approved two Trusteeship
Agreements which related to previous “‘C’’ Mandates, namely
Western Samoa and New Guinea: in one the adjudication clause
appears, in the other there is none.

In the mandate instruments relating to these two territories
there was a provision which conferred rights or interests upon
States Members of the League or their nationals, and each contained
the adjudication clause’. These rights, considered by many States,
Members of the League, to be of importance in these somewhat
primitive areas, were, in terms, that the Mandatory Power ‘‘Shall
allow all missionaries, nationals of any State, a Member of the
League of Nations, to enter into, travel and reside in the territory
for the purpose of prosecuting their calling’’.

When Western Samoa was brought under the Trusteeship System
of the Charter, its Trusteeship Agreement, after stipulating the
obligation common to all Trusteeship Agreements, namely to ad-
minister the territory so as to achieve the objectives of Article 76
of the Charter?, in a subsequent provision, again accorded the same
rights to missionaries, nationals of a State, a member of the United
Nations as were contained in the mandate instrument. Consequently
the adjudication clause found its place in the relevant Trusteeship
Agreement, just as it did in the mandate instrument. The Trus-
teeship Agreement which related to New Guinea, on the other hand,
did not contain any provision specifically according any rights or
interests to States or their nationals, the rights accorded to mis-
sionaries, etc., thus were not included.

During the course of the deliberations in the Sub-Committee
of the Fourth Committee of the General Assembly, which scrutinized
the provisions of each draft Trusteeship Agreement before it, a
number of new clauses to the New Guinea draft (some of them
designed to have written into that draft the conferring of individual
rights or interests on States, Members of the United Nations, or
their nationals, similar to those conferred in the Trusteeship Agree-
ment presently before the Court‘) were proposed by different
delegations.

Specifically there was a proposal by the United States Dele-
gation to include two clauses, the one in identical terms to

1 The same day on which the Trusteeship Agreement for British Cameroons
was approved by the General Assembly.

2 In the case of ‘A’ and “B’’ Mandates the rights specifically conferred upon
States or their nationals were quite extensive; in the case of “C’’ Mandates these
rights were minimal.

3 See footnote 1 at pp. 87, 88, ante.

* See Annexes 5 to 5(g) to United Nations Official Records of second part
of ist Session of the General Assembly, pp. 240 to 248 and sub-committee Doc.
A/C.4/Sub. 1/31.

82
94 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

Article 9 of the Western Samoan draft (freedom of conscience and
religion) which conferred rights upon missionaries, nationals of
States, Members of the United Nations, to enter, travel, reside
and carry on their calling; the other identical to Article 16 of the
Western Samoan draft, the adjudication clause. These proposals
had been before the Sub-Committee for a considerable time and
had been circulated?

The Sub-Committee had commenced its deliberations on 15 No-
vember 1946. At its first meeting of 3 December 1946 it was decided
to postpone discussion of the new Articles proposed, inter alia, by
the United States until the end of the examination of the New
Guinea draft agreement.

At the Sub-Committee’s second meeting the same day the modifi-
cation proposed by the Delegation of the United States to the draft
agreement for New Guinea, namely to add an Article identical to
Article 16 of the draft agreement for Western Samoa, was post-
poned for later consideration in connection with other proposed
new articles.

Later at the same meeting the delegate for Australia made the
Australian Government’s position quite plain. It was prepared, in
order to meet a number of proposed modifications to its draft, to
add, as it did, an additional clause (now Article 8 of the Trusteeship
Agreement for New Guinea) but was not prepared to go any further.
This additional clause did not contain any provision conferring
individual rights upon States, Members of the United Nations or
their nationals; in particular it did not provide for any rights to
missionaries, nationals of a State, a Member of the United Nations?.
On the following day at the Sub-Committee’s second meeting of
that day the delegate of the United States withdrew his proposal
to insert certain Articles in the New Guinea draft, specifically
he withdrew the proposal to insert an Article concerning ‘‘the
procedure to be followed with respect to disputes over the interpre-
tation and application of the provisions of the draft agreement?’.

There was no protest, no debate, no comment. Nor was there
any when the Sub-Committee reported to its parent Committee.

One week after, all eight of the Trusteeship Agreements to which
reference has previously been made (including the Trustee-
ship Agreement for the British Cameroons) were approved by the
General Assembly. No observation of any kind was made on the

1 Records of 2nd part of rst session of the General Assembly Fourth Committee;
Trusteeship Part II, p. 26, Annex 5(b) and Sub-Committee Doc. A/C.4/Sub. 1/31.

2 [bid., at pp. 151-152 and Annexes 5 {f) and 5 (h).
3 Records of 2nd part of rst session of the General Assembly Fourth Committee;
Trusteeship Part II, pp. 163-164.

83
95 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

absence of an adjudication clause in the New Guinea Trusteeship
Agreement.

It seems hardly believable, if the all-important purpose of the
adjudication clause were that presently contended for by the Ap-
plicant, that the omission of an adjudication clause could have
passed without some comment. Yet none was made.

In the light of this record it is quite impossible to reconcile what
took place in the Sub-Committee, the Fourth Committee and the
General Assembly itself with the contention of the Applicant that
Article 19 of the Trusteeship Agreement was intended to accord a
right to any State, a Member of the United Nations, to have re-
course to this Court in relation to a dispute concerning the inter-
pretation or application of the general provisions of a Trusteeship
Agreement dealing with the obligations of an Administering Au-
thority undertaken by it in the interests of the inhabitants of the
territory. Where there were to be found in a Trusteeship Agreement
approved by the General Assembly. any provisions which con-
ferred or were understood to confer individual rights or interests
upon States, Members of the United Nations, or their nationals,
the adjudication clause appeared, where a Trusteeship Agreement
contained none, as was the case for example of that relating to
New Guinea, no adjudication clause appearedt, the General As-
sembly did not regard it as serving any purpose.

This conclusion is I think inescapable. However, in the remote
possibility that it could be urged that Australia’s explanation as to
the absence of the adjudication clause to which reference has pre-
viously been made? was accepted by the Sub-Committee as suffi-
cient or as the equivalent of an adiudication clause the same con-
clusion, for reasons already advanced, must be reached.

However the matter is viewed the interpretation of Article 19
of the Trusteeship Agreement in the instant case contended for
by the Applicant is shown to be without substance.

+
* *

Having regard to ail the foregoing considerations it would not
seem possible to support the proposition that Article 19 of the
Trusteeship Agreement with which the Court is presently concerned
had anything to do with the general obligations of the Administer-
ing Authority’s obligations such as those on the alleged breach of
which the Applicant in this case bases its claim for relief. It is

1 The mandate instrument and the Trusteeship System Agreement in relation
to Nauru stand precisely on the same footing as that relating to New Guinea.
The Trusteeship Agreement relating to Nauru was approved by the General
Assembly nearly a year later, in November 1947. The absence of an adjudication
clause did not invite comment.

2 See pp. 85 and &6 and footnote at p. 86, ante.

84
96 JUDG. 2 XII 63 (SEP. OPIN. SIR PERCY SPENDER)

demonstrated that a dispute within the meaning of Article 19 of the
Trusteeship Agreement relates solely and exclusively to individual
rights or interests, whatever they were, which were conferred by pro-
visions of the Trusteeship Agreement upon States or their nationals.

*
* *

The history of the drafting of the adjudication clause and how
and why it came to be included in the Mandate instruments from
which it was taken when the Trusteeship Agreements were being
drafted bears out completely the conclusion arrived at.

The inescapable truth of the matter is that the adjudication
clause to be found in each mandate instrument and that found in
Trusteeship Agreements had a common parentage. They were
conceived to serve the same purpose, their scope and intendment
were the same. They had nothing to do with the general obligations
of either the Mandatory Powers or the Administering Authorities,
or the interests of the peoples of the territories, but, on the con-
trary, were intended to serve the mundane purpose of providing
a tribunal for the adjudication of disputes arising out of the inter-
pretation or application of provisions in both the Mandate Instru-
ments and the Trusteeship Agreements which in themselves
conferred individual rights or interests on States or their nationals,
and were intended to serve this purpose only 1.

*
* *

If, however, contrary to the conclusion I have felt bound to
arrive at on the interpretation to be accorded Article 19 the Court
has jurisdiction in these proceedings I agree that the Court, for
reasons appearing in its Judgment, should refrain from proceeding
further.

(Signed) Percy C. SPENDER.

1 See I.C.J. Reporis. 1962, Joint Opinion of Judge Sir Gerald Fitzmaurice
and myself, pp. 554-559, where the history of the origin and development of the
adjudication clause and how it came to be inserted in the mandate instruments is
reviewed.

85


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE À LA LICÉITÉ
DE L'EMPLOI DE LA FORCE

(YOUGOSLAVIE c. BELGIQUE)

ORDONNANCE DU 30 JUIN 1999

1999

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. BELGIUM)

ORDER OF 30 JUNE 1999
Mode officiel de citation:

Licéité de l'emploi de la force (Yougoslavie c. Belgique),
ordonnance du 30 juin 1999, C.I1.J. Recueil 1999, p. 988

Official citation:

Legality of Use of Force (Yugoslavia v. Belgium),
Order of 30 June 1999, LC.J. Reports 1999, p. 988

N° de vente:
ISSN 0074-4441 Sales number 741

ISBN 92-1-070812-1

30 JUIN 1999

ORDONNANCE

LICÉITÉ DE L'EMPLOI DE LA FORCE
(YOUGOSLAVIE c. BELGIQUE)

LEGALITY OF USE OF FORCE
(YUGOSLAVIA v. BELGIUM)

30 JUNE 1999

ORDER
988

COUR INTERNATIONALE DE JUSTICE

1999 ANNEE 1999
30 juin
Rôle général
n° 105 30 juin 1999

AFFAIRE RELATIVE À LA LICEITE
DE L'EMPLOI DE LA FORCE

(YOUGOSLAVIE c. BELGIQUE)

ORDONNANCE

Présents: M. WEERAMANTRY, vice-président, faisant fonction de prési-
dent en l'affaire; M. SCHWEBEL, président de la Cour;
MM. Ona, BEDJAOUI, GUILLAUME, RANJEVA, HERCZEGH, SHI,
FLEISCHHAUER, KOROMA, VERESHCHETIN, M™*  HiGGixs,
MM. PARRA-ARANGUREN, KOOUMANS, REZEK juges: MM. KRECA,
DUINSLAEGER, juges ad hoc; M. ARNALDEZ, greffier adjoint.

La Cour internationale de Justice,

Ainsi composée,

Après délibéré en chambre du conseil,

Vu l’article 48 du Statut de la Cour et les articles 31, 44, 45, 48, 49 et 79
de son Règlement,

Vu la requête déposée au Greffe de la Cour le 29 avril 1999, par
laquelle la République fédérale de Yougoslavie a introduit une instance
contre le Royaume de Belgique «pour violation de l’obligation de ne pas
recourir à l'emploi de la force»,

Vu la demande en indication de mesures conservatoires présentée par
la Yougoslavie le 29 avril 1999 et l'ordonnance rendue par la Cour le
2 juin 1999, aux termes de laquelle elle a rejeté ladite demande et réservé
la suite de la procédure;

Considérant qu’aux fins de se renseigner auprès des Parties sur la suite
989 LICÉITÉ DE L'EMPLOI DE LA FORCE (ORD. 30 VI 99)

de la procédure le vice-président de la Cour, faisant fonction de président
en l'affaire, a reçu leurs représentants le 28 juin 1999; considérant qu’au
cours de cette réunion la Belgique, se référant aux conclusions auxquelles
la Cour était parvenue dans son ordonnance susmentionnée du 2 juin
1999, a demandé qu'il soit statué séparément, avant toute procédure sur
le fond, sur les questions de la compétence de la Cour et de la recevabilité
de la requête en l'espèce; considérant qu’au cours de la même réunion, la
Yougoslavie s’est opposée à cette demande et a indiqué qu’elle souhaitait
pouvoir présenter un mémoire sur le fond, ainsi qu’envisagé dans le
Règlement de la Cour, étant entendu que la Belgique pourrait soulever
des exceptions préliminaires dans le délai fixé pour le dépôt de son
contre-mémoire, conformément au paragraphe 1 de l'article 79 dudit
Règlement; et considérant que le demandeur a évoqué un délai d'environ
six mois aux fins du dépôt de la pièce qu’il souhaitait produire;

Considérant les vues des Parties et les dispositions pertinentes du
Règlement de la Cour,

Fixe comme suit les dates d'expiration des délais pour le dépôt des
pièces de la procédure écrite prescrites par l’article 45 du Règlement:

Pour le mémoire de la République fédérale de Yougoslavie, le 5 janvier
2000;

Pour le contre-mémoire du Royaume de Belgique, le 5 juillet 2000;

Réserve la suite de la procédure.

Fait en français et en anglais, le texte français faisant foi, au Palais de
la Paix, 4 La Haye, le trente juin mil neuf cent quatre-vingt-dix-neuf,
en trois exemplaires, dont l’un restera déposé aux archives de la Cour et
les autres seront transmis respectivement au Gouvernement de la Répu-
blique fédérale de Yougoslavie et au Gouvernement du Royaume de
Belgique.

Le vice-président,
(Signé) Christopher G. WEERAMANTRY.

Le greffier adjoint,
(Signé) Jean-Jacques ARNALDEZ.