437

SEPARATE OPINION OF SIR LOUIS MBANEFO

I agree generally with the reasons given in the Judgment of the
Court, but I feel that a great deal of the argument on the first three
Preliminary Objections in the Judgment goes to the merit of the
case. The Court is concerned essentially at this stage with the
question of jurisdiction. The way in which the claims of the Appli-
cants and the Preliminary Objections of the Respondent are framed
make it difficult for the Court to avoid touching on the merits of the
case. But that notwithstanding, I feel that emphasis should be on a
line of reasoning that deals essentially with the issue of jurisdiction;
and the opinion which I now give is intended to supplement the
reasoning of the Court on the First, Second and Third Preliminary
Objections.

These objections of the Respondent, as set out in its final sub-
missions, are:

Firstly, that the Mandate for South West Africa has never been,
or at any rate is since the dissolution of the League of Nations no
longer, a “treaty or convention in force” within the meaning of
Article 37 of the Statute of the Court, this submission being
advanced
(a) with respect to the said Mandate Agreement as a whole, in-

cluding Article 7 thereof, and

(6) in any event, with respect to Article 7 itself;

Secondly, that neither the Government of Ethiopia nor the Gov-
ernment of Liberia is ‘‘another Member of the League of Nations”,
as required for locus standi by Article 7 of the Mandate for South
West Africa;

Thirdly, that the conflict or disagreement alleged by the Govern-
ments of Ethiopia and Liberia to exist between them and the
Government of the Republic of South Africa, is by reason of its
nature and content not a “‘dispute’’ as envisaged in Article 7 of the
Mandate for South West Africa, more particularly in that no
material interests of the Governments of Ethiopia and/or Liberia
or of their nationals are involved therein or affected thereby.

In dealing with the issue of jurisdiction, I think it would be
better to begin with the position as it was before the dissolution of
the League. The first question that leaps to the mind then is would
the Permanent Court of International Justice have had jurisdiction
in the matter now before the Court? If it would, then by Article 37
of the Statute of the International Court of Justice that jurisdiction

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would have been transferred to this Court, assuming that the
Mandate with Article 7 is still in force.

The competence of the Permanent Court of International Justice
is provided for in Article 36 of the Statute of that Court, the first
paragraph of which reads as follows:

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

The Permanent Court would have had jurisdiction if the Mandate
which contains Article 7 on which the Applicants base their right to
come to Court was a treaty or convention in force. The Respondent
says in its final submission that the Mandate was never a treaty or
convention and that if it ever was a treaty or convention, it is,
since the dissolution of the League, no longer in force. I agree with
the Court that the Mandate is and has always been a treaty or
convention in force and I shall explain how I came to that conclu-
sion later. Assuming, therefore, that the Mandate was a treaty or
convention in force, when the Permanent Court of International
Justice was abolished, Article 37 transferred to this Court the juris-
diction which the Permanent Court had or would have had under
Article 7 of the Mandate.

Paragraph. of Article 35 of the Statute of this Court states that :
the Court shall be open to the States parties to the Statute of
the International Court, and by Article 93 of the Charter of the
United Nations all Members of the United Nations are #pso facto
parties to the Statute of the Court. Paragraph 2 deals with con-
ditions under which other States could have access to the Court, but
we are not concerned with that in this case, as both Ethiopia and
Liberia and the Respondent are Members of the United Nations and
therefore parties to the Statute of this Court. It follows that if by
reason of Article 37 this Court assume jurisdiction under Article 7
of the Mandate, the Applicants, to be able to come to this Court,
must be Members of the United Nations, as indeed they are. Arti-
cle 36 of the Statute of the International Court contains the same
provisions as Article 36 of the Statute of the Permanent Court
quoted above.

The Applicants base their right to come to Court on Article 7 of
the Mandate and on Article 37 of the Statute of the International
Court having regard to Article 80 (x) of the United Nations Charter.

Article 80 (1) of the United Nations Charter is not a jurisdictional
clause; it is essentially an interpretation clause and as such it
has no direct bearing on the issue of jurisdiction.

The first important issues which the Court is then called upon to
decide on the First Preliminary Objection are whether the Mandate
was a treaty or convention and, if 1t was, whether it is still in force

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after the dissolution of the League of Nations and, if in force,
whether Article 7 survived with it.
. These issues are substantially raised in paragraphs I and 2 of
the Applicants’ claims as set out in their respective Applications.
They are issues which the Court will have to decide in any case in
order to satisfy itself that it has jurisdiction to entertain the claims
and the fact that they are included as part of the claims before
the Court only serves to emphasize their importance in that respect.
Their inclusion as part of the claims therefore does not of itself
give the Court jurisdiction to deal with the case. The Court’s com-
petence must be shown to exist independent of the claim before it.

Treaty ov convention in force

In his submission, Respondent says with respect to the First
Objection, that the Mandate for South West Africa has never been,
or, at any rate, is, since the dissolution of the League of Nations,
no longer, a “treaty or convention in force” within the meaning of
Article 37 of the Statute of the Court. The submission is advanced
with respect to the Mandate Agreement as a whole, including
Article 7 thereof, and, in any event, with respect to Article 7 itself.

The first part of the submission, namely, that the Mandate
Agreement was never a “treaty or convention in force”, was based
on a review of the history of the creation of the Mandate as given on
behalf of the Respondent in answer to certain questions posed by a
Member of the Court, in particular questions Nos. 3 and 4 which
read as follows:

“Question 3: Does any party to these proceedings claim that
the Declaration by the Council (Annex B) is in itself a treaty or
convention?”

“Question 4: … À. Who in 1920 were the parties to any treaty or

convention by virtue of which the Mandate was conferred upon the
Respondent upon the terms or provisions set out in the Declaration?

B. If States, Members of the League, were parties to such treaty

or convention:

(1) Was the treaty or convention registered under the provisions
of Article 18 of the Covenant and the machinery for registration
established by the League? If so, by whom was it registered
and to whom was the certificate of registration issued?

(2) If not registered, what significance, if any, is to be attached
to the fact of non-registration?”’

The Respondent said in its reply that the Declaration was not
in itself a treaty or convention: because it was called a “declaration”’
and not a treaty or convention, was never signed by the Man-
datory, had no provision for ratification, was never ratified and

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was never registered. It, however, added in answer to question A
that if the Mandate was a treaty or convention, the Parties were the
Mandatory on the one hand, and the League and/or its Members as
such, on the other.

Until the questions were put, the Respondent had proceeded on
the basis that the Mandate Declaration was a treaty or convention.
That the Mandate Declaration is a treaty or convention [within
the meaning of Article 37 of the Statute of the Court] is supported
strongly by the past history of the Mandate. If the Mandate
Declaration was never a treaty, by what right then did the Respond-
ent assume the administration of the territory? For upwards of
40 years it has administered the territory because it regarded the
Declaration as a treaty or convention empowering it to do so on
the terms therein set out. If the law of estoppel has any meaning
or application in international law the Respondent would be pre-
cluded from raising such an issue on the face of its own conduct
during the past 40 years. In the Eastern Greenland case (1933,
Series A/B, p. 51) the Permanent Court of International Justice

said at page 68:

“In accepting these bilateral and multilateral agreements as
binding upon herself, Norway reaffirmed that she récognized the
whole of Greenland as Danish; and thereby she has debarred herself
from contesting Danish sovereignty over the whole of Greenland
and in consequence from proceeding to occupy it.”

It is significant, if there is any substance in the point, that the
Respondent had not raised it earlier either in any of the previous
proceedings on the various advisory opinions on the Mandate
requested of the Court by the General Assembly of the United
Nations, or in the proceedings of the various organs of the United
Nations.

This Court in the 1950 Advisory Opinion on the Status of South
West Africa held after careful consideration that the Mandate was
a treaty or convention in force. In the Mavrommatis Palestine
Concessions case (P.C.I.J. Series A, No. 2, p. 7), the Permanent
Court of International Justice regarded the Palestine Mandate
created in a similar manner as the Mandate for South West Africa
as a treaty or convention creating rights and obligations recognized
by international law, and based jurisdiction on Article 26 of that
Mandate, which is identical to Article 7 of the Mandate for South
West Africa.

The Court in its Judgment has given a brief history of the creation
of the Mandate with which I generally agree, and I do not intend to
repeat it here. It is enough to say for the purpose of my argument
that Article 22 of the Covenant of the League, which was an integral
part of the Peace Treaty with Germany, provides that overseas
territories which Germany had by Articles 118 and 119 of the Peace

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Treaty surrendered to the Principal Allied and Associated Powers
should be governed on the principle that the well-being and the
development of the peoples of those territories form a sacred trust
of civilization and that securities for the performance of the
trust should be embodied in the Covenant; that the tutelage of
such peoples should be entrusted to advanced nations who are
willing to undertake the responsibility, and that the tutelage
should be exercised by them on behalf of the League of Nations.
Article 22 further provides that the degree of authority, control
or administration to be exercised by the Mandatory shall, if not
previously agreed upon by Members of the League, be explicitly
defined in each case by the Council of the League. The Principal
Allied and Associated Powers, in whose favour Germany renounced
the territories, acting in accordance with Article 22, had previous
to the signing of the Treaty agreed that the Mandate for South West
Africa should be conferred upon His Britannic Majesty (who at the
time had authority legally to undertake international obligations
on behalf of the Government of the Union of South Africa) on behalf of
the Government of the Union of South Africa. The Council of the Lea-
gue, confirming the Mandate, defined its terms in the form as set out in
the Declaration, Annex B. The terms thus defined by the Council
pursuant to Article 22 (8) of the Covenant of the League and agreed
to by the Mandatory (or on its behalf) became, in my view, an annex
to the Covenant, which created the Mandate and is the source
from which the obligations set out in the Declaration derived
their validity and binding force. As a matter of fact it had been the
intention if they had been drawn up soon enough to include them
in the Treaty, probably as a schedule to the Covenant.

As such, there would have been no argument that they would be
regarded as part of the Covenant, which is admittedly a treaty or
convention. Because they were set out in a separate document
which by its preamble relates it to the Covenant does not make
them any the less part of the Covenant and a fortiori a treaty or
convention.

Terminology, as the Judgment of the Court rightly points out,
is not a criterion for determining whether an instrument is a treaty
or convention. In the 8th edition of Oppenheim’s International
Law, page 898, paragraph 508, it is stated:

“International compacts which take the form of written contracts
are sometimes termed not only agreements or treaties, but acts,
conventions, declarations, protocols, and the like. But there is no
essential difference between them and their binding force upon the
contracting parties is the same, whatever their name.”

Regarded as part of Article 22 of the Covenant, the Mandate
Declaration would not, in my view, require further ratification or

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separate registration. Article 7 provides that the Mandate Declara-
tion shall be deposited in the archives of the League of Nations,
and copies thereof sent to all Powers signatories of the Treaty of
Peace. The fact that copies were to be sent to all Powers signatories
of the Treaty of Peace strengthens the argument that the Declara-
tion was to be regarded as part of the Covenant which is itself
part of the Treaty of Peace.

I think it is necessary to bear in mind that the Mandate Declara-
tion was not creating a new Mandate. It was only a step in the imple-
mentation of Article 22. The terms therein defined were intended
to apply to all the ““C’’ Mandates which included Nauru, Western
Samoa, South West Africa and the North Pacific Islands. Each
of these Mandates contain identical terms as are set out in the De-
claration under consideration. It would therefore be wrong to re-
gard it as a mere Council resolution. The Council in defining the
terms was carrying out a duty assigned to it under paragraph (8)
of Article 22. Nor do I agree that Article 7 of the Mandate went
beyond what the Council was authorized to do under Article 22. Arti-
cle 7, read in the light of paragraph 8 of Article 22 of the Covenant, isa
limitation on the power of administration which had been conferred
on the Mandatory. The first paragraph of the Article says the Man-
datory cannot modify the terms of the Mandate without the consent
of the Council, and the second paragraph imposes on the Mandatory
the obligation to accept the compulsory jurisdiction of the Court
in the event of any dispute with another Member of the League
regarding the interpretation and application of the Mandate.

As to the necessity for having Article 7, this has been fully dealt
with in the Judgment of the Court and it would be superfluous to
add to what has been said.

I agree with the decision of the Court that the first part of the
submission of the Respondent that the Mandate was never a treaty
or convention should be rejected. That submission departs from
the very basis on which the Respondent began its objection to
jurisdiction which is the second part of its submission, namely that
the Mandate is no longer a ‘‘treaty or convention in force”.

This Court, in its Advisory Opinion in the South West Africa
case in 1950, held—as I have already stated—that the Mandate
survived the League and is still in force. The Respondent has not
quarrelled seriously with that finding of the Court. Indeed, it says
in its oral submissions, through its Agent, Dr. verLoren van The-
maat (page 4 of oral proceedings) :

“We state that our submissions under the First .::-jection concern
only the Mandate as an agreement, our contention being that as a
treaty or convention the Mandate is no longer in force. We state
further that no submissions are advanced about the question whether
the Mandate in the wider sense of being an institution survived the

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S. W. AFRICA CASES (SEP. OP. SIR LOUIS MBANEFO)

League or not. The logical effect of this attitude is that, although we
make no admissions in that regard, we are prepared for the purposes
of our argument in these Objections to assume that the Mandate as
an institution survived the League.”

Later, at pages 16 and 17, Mr. de Villiers in his oral submissions on
behalf of the Respondent, also states:

«6

. although we contend that the Mandate, seen as a treaty or
convention, has lapsed, we do not offer any argument to the Court
on the question, the wider question, whether the Mandate, seen as
an objective institution, is still in force, and if so, to what extent...
It is therefore common cause between us and the Applicants that,
for purposes of the argument, at least the substantive obligations as
originally set out in clauses 2-5 of the Mandate must be regarded as
still being in force.”

The distinction which the Respondent tries to draw between the
Mandate as an agreement and the Mandate as an objective in-
stitution is in my opinion not feasible. It proceeds from a miscon-
ception of the nature of the Mandate.

The Court in its Advisory Opinion of 1950 described the Mandate
in these terms:

128

“It is now contended on behalf of the Union Government that
this Mandate has lapsed, because the League has ceased to exist.
This contention is based on a misconception of the legal situation
created by Article 22 of the Covenant and by the Mandate itself. The
League was not, as alleged by that Government, a ‘mandator’ in
the sense in which this term is used in the national law of certain
States. It had only assumed an international function of supervision
and control. The ‘Mandate’ had only the name in common with
the several notions of mandate in national law. The object of the
Mandate regulated by international rules far exceeds that of con-
tractual relations regulated by national law. The Mandate was

created in the interest of the inhabitants of the territory, and of

humanity in general, as an international institution with an inter-
national object—a sacred trust of civilization. It is therefore not
possible to draw any conclusion by analogy from the notions of
mandate in national law or from any other legal conception of that
law. The international rules regulating the Mandate constituted an
international status for the Territory recognized by all the Members
of the League of Nations, including the Union of South Africa.

The essentially international character of the functions which
had been entrusted to the Union of South Africa appears particu-
larly from the fact that by Article 22 of the Covenant and Article 6
of the Mandate the exercise of these functions was subjected to the
supervision of the Council of the League of Nations and to the obli-
gation to present annual reports to it; it also appears from the fact
that any Member of the League of Nations could, according to
444 S. W. AFRICA CASES (SEP. OP. SIR LOUIS MBANEFO)

Article 7 of the Mandate, submit to the Permanent Court of Inter-
national Justice any dispute with the Union Government relating
to the interpretation or the application of the provisions of the
Mandate.”

Judge Read in his separate Opinion, at page 164, also said of it:

“It is sufficient to note that the international status of South
West Africa was that of a mandated territory. The Union of South
Africa exercised most of the powers which are inherent in sovereign-
ty, but the residual elements were neither exercised nor possessed
by the Union. It was subject to three kinds of international obli-
gations.

The first, and the most important, were obligations designed to
secure and protect the well-being of the inhabitants. They did not
enure for the benefit of the Members of the League, although each
and every Member had a legal right to insist upon their discharge.
The most important, the corner-stone of the Mandates System, was
‘the principle that the well-being and development of such peoples
forms a sacred trust of civilization’, a principle which was established
in paragraph 1 of Article 22 of the Covenant.

The second kind of obligations comprised those which were due
to, and enured to, the benefit of the Members of the League, e.g.,
in respect of missionaries and nationals.

The third kind of obligations comprised the legal duties which
were concerned with the supervision and enforcement of the first
and the second. There was the compulsory jurisdiction of the

’ Permanent Court, established by Article 7 of the Mandate Agree-
ment; and there was the system of report, accountability, super-
vision and modification, under paragraphs 7, 8 and 9 of Article 22,
and Articles 6 and 7 of the Mandate Agreement. This third class of
obligations was the new element in the Mandates System, and its
importance should not be underrated. At the same time it should
not be overestimated. The disappearance of the obligations in-
cluded in the first and the second classes would bring the Mandates
System to an end. The disappearance of the régime of report,
accountability, supervision and modification, through the Council
and the Permanent Mandates Commission, might weaken the Man-
dates System; but it would not bring it to an end. As a matter of
fact, the record shows that the paralysis of those agencies during
six war years had no detrimental effect upon the maintenance of the
well-being and development of the peoples.”

The Mandate, it is clear from the above views, with which I
agree, exists in terms of rights and obligations as set out in Ar-
ticle 22 of the Covenant and in the Mandate Declaration. As an
institution it is a bundle of rights and obligations, not a physical
edifice, although it has physical aspects in the existence of the
Mandatory, the territory and its inhabitants, the League and its
component Member States, bodies which have the rights and to

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whom the obligations are owed. When the Court in 1950 said that
the Mandate survived, it is this bundle of rights and obligations,
in so far as they are still capable of being exercised and enforced,
that survived. It is rather unconvincing to say, as the Respondent
has said, that only clauses 2-5 of the Mandate (which creates certain
rights for the Mandatory and, by his argument, no enforceable
obligations) survived but that the instrument containing the clauses
has ceased to have effect. If the right to administer the territory
which the Respondent claims survive, it can only survive because
the instrument creating it is still in force unless its continued
validity can be traced to another source; and no such source has
been suggested ; hence the Court said in 1950 (page 133, paragraph 2):

“The authority which the Union Government exercises over the
Territory is based on the Mandate. If the Mandate lapsed, as the
Union Government contends, the latter’s authority would equally
have lapsed. To retain the rights derived from the Mandate and to
deny the obligations thereunder could not be justified.”’

With respect to Article 7, the Respondent says that even if the
Mandate was ever a treaty or convention in force, the Article
has lapsed with the dissolution of the League as there is now no
longer any Member of the Teague capable of enforcing it; in other
words, that a condition for invoking Article 7 is a continued
membership of the League. Up to a point there is some force in this
argument. The right conferred by Article 7 is conferred on Members
of the League; the idea of the Mandate was conceived within the
framework of the League; the finalizing of the terms, the power
to accept reports and to supervise the administration, and the
power to agree to a modification of the terms of the Mandate, were
vested in the League or its organs. The purpose of the Mandate,
however, is the well-being and development of the peoples of the
territories as a sacred trust of civilization. That purpose has not
yet been achieved, and no one has suggested that it has been aban-
doned or rendered invalid with the dissolution of the League.
Although the League was dissolved, the Mandate still continues
and the rights and obligations embodied in it became, as it were,
maintained at the level at which they were on the dissolution of
the League. It is on this ground that the Respondent can justify
its right to continue to administer the territory and those States
who were Members of the League at the time of its dissolution the
right to continue to invoke the compromissory clause of Article 7.
The right to invoke Article 7 remained vested in those States who
were Members of the League at the time of its dissolution, and
continues notwithstanding the termination of the League’s functions.

Reference has been made in the Judgment to the resolution of
18 April 1946 of the General Assembly of the League of Nations

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and to the undertakings given by the Mandatories, including the
Respondent, to continue to administer the territories in accordance
with their respective Mandates until other arrangements were made.
The point which has been made in the Judgment of the Court,
and which I feel needs to be emphasized, is that the life of the Man-
dates system after the dissolution of the League was to be of a very
short duration, because of the provision for the Trusteeship System
in the Charter of the United Nations. The other Mandates have
been satisfactorily terminated, but the winding-up operation has
continued in the case of the Mandate for South West Africa and as
long as it continues it will still be open to those States who were
Members of the League at the time of its dissolution to continue to
have the right to call the Mandatory to question if he acts contrary
to the terms of his Mandate.

In his Submission on the Third Preliminary Objection the Respon-
dent says that the conflict or disagreement alleged by the Ap-
plicants to exist between them and the Respondent is by reason
of its nature and content not a “dispute” as envisaged in Article 7
of the Mandate for South West Africa and more particularly in
that no material interests of the Applicants or of their nationals
are involved therein or affected thereby.

Respondent’s argument proceeded on the assumption that,
despite the dissolution of the League, Applicants would still be
entitled to invoke the provisions of Article 7 of the Mandate for
South West Africa in an appropriate case. The burden of his ar-
gument is that there is a qualification inherent in the meaning
of the word “dispute” in a compulsory jurisdiction clause, such as
Article 7, and that is ‘‘a confining of the subject-matter in dispute
to something in which the Applicants have legal rights or interests’.
He says that the dispute in the instant case does not affect any
material interests of the Applicant States or their nationals.

In construing the word “dispute” in Article 7, one should first
look at the word in the light of its ordinary and natural meaning.
The material part of Article 7, for the purpose of this Preliminary
Objection, reads as follows:

“The Mandatory agrees that if any dispute whatever should
arise between the Mandatory and another Member of the League
relating to the interpretation or the application of the provisions
of the Mandate...”

It is not contended that the dispute, whatever it is, does not
relate to the interpretation or the application of the provisions of
the Mandate. Respondent’s Counsel concedes that it does. Indeed,
he says in his oral submission:

“Our contention is not concerned with the question whether the
subject-matter of the dispute falls within the category interpre-

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447 S. W. AFRICA CASES (SEP. OP. SIR LOUIS MBANEFO)

tation or application of the Mandate. We assume for the purposes
of argument that it does so fall.”

Unless the context otherwise dictates, or there is some express
provision to the contrary, the term “dispute”? must be given its
otdinary and natural meaning. In the context in which the word
appears in Article 7, no such inherent qualification as Respondent’s
Counsel contends can legitimately be implied or read into it. In
its Advisory Opinion on Interpretation of Peace Treaties with
Bulgaria, Hungary and Rumania in 1950, this Court held, at page 74,
that “where there has arisen a situation in which the two sides
hold clearly opposite views concerning the question of the perfor-
mance or non-performance of certain treaty obligations, the Court
must conclude that international disputes have arisen”; and in its
Judgment in the Asylum case between Colombia and Peru, No-
vember 1950, the Court said that ‘a dispute requires a divergence
of views between the parties on definite points”. In the Mavrom-
matis case the Permanent Court of International Justice, in dealing
with Article 26 of the Mandate for Palestine, which is an identical
clause to Article 7 of the Mandate for South West Africa, defines
“dispute” as a “disagreement on a point of law or fact, a conflict
of legal views or of interests between two persons”.

Respondent’s Counsel tound himself in some difficulty when he
came to define “interest”. He said that it must be material interest.
The Court cannot decide whether a dispute affects the material
interest of an applicant without going into the evidence. An appli-
cant is not limited to showing that its interest, be it material or
not, has been affected; it is also entitled to show that the course
of action pursued or threatened is likely to affect its interest or
those of its nationals adversely.

But an applicant does not have to do that under Article 7 once it
is shown that the parties hold clearly opposing views on a question
of law of fact. In this respect the view of the Agent for the British
Government in the Mavrommatis case is noteworthy. In the preli-
minary counter-case in the Mavrommatis case (Series C, No. 5-I,
page 445) he states:

“The concessions granted to Mr. Rutenberg in September 1021
for the development of electrical energy and water-power in Palestine
were obliged to conform to this Article 11, and it would have been
open to any Member of the League to question provisions in those
concessions which infringed the international obligations which His
Britannic Majesty as Mandatory for Palestine had accepted.”

Article 7 speaks of ‘‘any dispute whatever’. That phrase throws
the net as wide as possible. The framers of the Article could not

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be thinking only of disputes where the right or material interest of
a State or its nationals was concerned. The inhabitants of the
mandated territory of South West Africa could not themselves—
either individually or collectively—-under the Court’s Statute or
Rules bring an action to the Permanent Court, nor could the League,
so that when the Mandate speaks of “any dispute whatever between
the Mandatory and another Member of the League”, vis-à-vis
the Mandate, the authors of the Mandate Agreement must have
intended that any breach of its obligations by the Mandatory, if
it could not be settled by negotiation, should be the subject-matter
of an action in a contentious proceeding under the compulsory
jurisdiction of the Court. In the Mavrommatis case the Permanent
Court said, at page 15: ‘The dispute may be of any nature; the
language of the article in this respect is as comprehensive as
possible.”

I do not therefore find any substance in the submission of Re-
spondent that the word “dispute’’ should be given a restricted
meaning by confining it to disputes in which the material interests
of the Applicants are involved. Further, I am of the view that,
even if any such interest is required to sustain an action under
Article 7, absence of such interest may be a ground for refusing a
claim but not for denying jurisdiction and, in any event, the
Applicants as has been shown in the Judgment of the Court have
such interest in ensuring that the Mandatory carry out its interna-
” tional obligations under the Mandate.

I agree with the Judgment of the Court that the Mandate is a
treaty or convention in force and that Article 7 of the Mandate
Declaration is still in force. I also agree with the conclusion reached
by the Court that the Third and Fourth Preliminary Objections
are not well founded. It follows therefore that Applicants as parties
to the Statute of this Court have the right by virtue of Articles 36
and 37 of the Statute of the Court to invoke the compulsory juris-
diction of the Court in the instant proceedings.

(Signed) Louis MBANEFO.

133


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE
DU DIFFEREND FRONTALIER

(BENIN/NIGER)

ORDONNANCE DU 11 SEPTEMBRE 2003

2003

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE FRONTIER DISPUTE

(BENIN/NIGER)

ORDER OF 11 SEPTEMBER 2003
Mode officiel de citation:
Différend frontalier (Bénin! Niger),
ordonnance du 11 septembre 2003, C.LJ. Recueil 2003, p. 155

Official citation:

Frontier Dispute {Benin/Niger),
Order of 11 September 2003, I C.J. Reports 2003, p. 155

N° de vente:
ISSN 0074-4441 Sales number 874
ISBN 92-1-070982-9

11 SEPTEMBRE 2003

ORDONNANCE

DIFFÉREND FRONTALIER
(BÉNIN/NIGER)

FRONTIER DISPUTE
(BENIN/NIGER)

11 SEPTEMBER 2003

ORDER
155

INTERNATIONAL COURT OF JUSTICE

YEAR 2003

11 September 2003

CASE CONCERNING
THE FRONTIER DISPUTE

(BENIN/NIGER)

ORDER

The President of the Chamber of the International Court of Justice
formed to deal with the case concerning the Frontier Dispute { Benin! Niger),

Having regard to Article 48 of the Statute of the Court, and to
Articles 18, paragraph 3, 44, 46 and 92 of the Rules of Court,

Having regard to the Special Agreement signed by the Republic of
Benin and the Republic of Niger on 15 June 2001 and having entered into
force on 11 April 2002, by which the Governments of those two States
agreed to submit to a Chamber of the Court a dispute concerning “the
definitive delimitation of the whole boundary between them”,

Having regard to the Order of 27 November 2002, whereby the Court
fixed 27 August 2003 as the time-limit for the filing of a Memorial by
each of the Parties;

Whereas the Memorials of Benin and Niger have been filed within the
above time-limit ;

Whereas Article 3, paragraph 1 (b), of the above-mentioned Special
Agreement provides that a Counter-Memorial shall be submitted by each
of the Parties not later than nine months after the exchange of Memorials,

Fixes 28 May 2004 as the time-limit for the filing of a Counter-
Memorial by each Party; and

Reserves the subsequent procedure for further decision.

2003
11 September
General List
No. 125
FRONTIER DISPUTE (ORDER 11 IX 03) 156

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this eleventh day of September, two
thousand and three, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of
the Republic of Benin and the Government of the Republic of Niger,
respectively.

(Signed) Gilbert GUILLAUME,
President of the Chamber.

(Signed) Philippe COUVREUR,
Registrar.