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SEPARATE OPINION OF JUDGE VAN WYK

GENERAL GROUNDS FOR DISMISSING APPLICANTS’ SUBMISSIONS

I agree that the claim should be dismissed and I agree with the reasons
stated in the Judgment. There are however several further and alternative
grounds for dismissing the claim; and although I fully share the view
of those members of the Court who, while agreeing that these grounds
exist hold that once a ccurt has found a general ground of a fundamental
character for dismissing a claim, neither it, nor any judge, should
proceed to state what its judgment, or his opinion, would have been
had such ground not existed, I nonetheless believe that it would be
unrealistic in the particular circumstances of this case if at least one
judge did not deal with some of those further and alternative grounds
from the standpoint which I adopt. Before doing so, however, I wish
to make a few observations with regard to the Judgment.

2. It is true that a great deal of the reasoning of the present Judgment
is in conflict with the reasoning of the 1962 Judgment with regard
to the first three preliminary objections (particularly the second)—
so much so that the inescapable inference is that in 1962 the Court
assumed a jurisdiction it does not possess—but these considerations
cannot in any way preclude the Court from now basing its judgment
on the merits on its present reasoning. The Court is not bound to
perpetuate faulty reasoning, and nothing contained in the 1962 Judgment
could constitute a decision of any issue which is part of the merits of
the claim.

3. The mere fact that a provision confers competence on a court to
adjudicate upon disputes relating to certain matters at the instance of
particular States, obviously cannot have the effect of conferring sub-
stantive legal rights or interests in respect of such matters on such
States. Thus, for example, the acceptance of this Court’s jurisdiction
by the Netherlands—which is typical of several acceptances—is, with
exceptions therein indicated, “in relation to any other State... in all
disputes ...”. This acceptance confers competence on this Court to
adjudicate, at the instance of any State complying with the prescribed
conditions, upon any dispute between such a State and the Netherlands.
This would include any dispute relating to the interpretation or appli-
cation of the provisions of any treaty. But whether such a State has
a legal right or interest in the subject-matter of any such dispute, i.e.,
a right or interest upon which a judgment in its favour could be based,

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is a completely different matter. The answer to such a question is not
to be found in this acceptance of the Court’s jurisdiction, but depends
on the interpretation placed by the Court on the provisions of the
particular treaty upon which the claim is based. Such an issue is not
part of the jurisdictional issue, but constitutes an integral part of the
merits of the dispute, which can only be resolved after the Court has
upheld the right of the Applicant to seise it. These two matters, i.e., the
jurisdictional and the merits, cannot be dealt with simultaneously.

If any State should contend that the acceptance of the Court’s juris-
diction by the Netherlands confers on it substantive legal rights or
interèsts in respect of any particular matter, the Court will first decide
whetherNit has jurisdiction in terms of the acceptance of jurisdiction
by the Netherlands; and, only after having found that it has the necessary
competence, will it consider the merits of such a contention.

Some confusion has resulted in this case from the fact that the
same provision on which the Court’s jurisdiction is founded is also
alleged to constitute the source of the Applicants’ substantive legal
rights on which their claim is based. It should be appreciated that
where a provision is alleged to serve such a dual purpose, only the
jurisdictional aspect thereof can be considered at the preliminary
objection stage. The existence of substantive legal rights is part of
the merits, and must accordingly be determined at the merits stage of a
case, and this is so, even if the interpretation of a jurisdictional clause
is involved. It follows that if in 1962 this Court, per incuriam, or for
any other reason, dealt with the Applicants’ alleged substantive rights
or interests, its statements with regard thereto cannot now prejudice its
decision at this—the merits—stage.

4. The question of Applicants’ legal right or interest in the claim
not only arises generally—as happens at the merits stage of every case
of this kind—but actually constitutes an important sub-issue for several
specific submissions of the Applicants. The issue raised in their Sub-
mission No. 1 is whether the Mandate is still in force, and one of the
questions bearing on this is the legal effect of Article 7 (2), particularly
whether it conferred any substantive legal rights or interests on members
of the League !. Another issue included in the merits (by Applicants’
Submissions Nos. 3 and 4) is on what basis, if any, Article 2 (2) of the
Mandate was intended to be justiciable, and here again the aforesaid
question arises.

5. There is no substance in the contention that the Court is precluded
from considering whether the Applicants have a legal right or interest
in the claim merely because this issue was not specifically raised in the
Respondents’ submissions. Even if Respondent did not raise that question
the Court would nonetheless be bound to determine whether the Appli-
cants have a legal right or interest in the claim before considering the

1 See, e.g., Counter-Memorial, Book IJ, Chap. V, Part B.
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ultimate merits; but in any event this issue is embraced by the Respon-
dent’s submissions. In the Counter-Memorial, the Rejoinder and the
oral proceedings the Respondent disputed not only the Applicants’ legal
right or interest in respect of the specific submissions referred to above,
but did so also in regard to the claim generally '. In the final submissions
the Respondent expressly claimed that upon the basis of the statements
of fact and law set forth in the pleadings and oral proceedings the
Applicants’ submissions should be adjudged and declared unfounded,
and that no declaration be made as claimed by the Applicants. In these
circumstances no reasonable person could have been unaware of what
the submissions were intended to convey.

6. As already stated the 1962 Judgment could not decide any issue
forming part of the merits. This conclusion is not only in accordance
with general principles and the rules of this Court, but also flows from
the 1962 Judgment itself.

7. Reference has already been made to Article 62, paragraph 3, of
the Rules of this Court which provides in express terms that on the
filing of preliminary objections the proceedings on the merits shall be
suspended. In these cases there was actually an Order dated 5 December
1961 formally recording that by virtue of these provisions the proceedings
on the merits were suspended.

The basic consideration that a preliminary objection is not intended
to, and is not capable of giving rise to a binding judgment on the issues
of merits involved, has been recognized in several decisions—see
Mavrommatis Palestine Concessions, P.C.I.J., Series A, No. 2, page 10;
and in the Polish Upper Silesia case, P.C.I.J., Series A, No. 6, page 15,
this principle was formulated as follows:

“... the Court cannot ... in any way prejudice its future decision
on the merits”’ |
and—

“Even if this enquiry involves touching upon subjects belonging
to the merits of the case ... nothing which the Court says in the
present judgment can be regarded as restricting its entire freedom
to estimate the value of any arguments by either side on the same
subjects during the proceedings on the merits.”

It is in any event highly improbable that the Court could have intended
to make any decisions on the merits when dealing with an interlocutory
matter relating to jurisdiction. A court of law cannot be presumed to have
intended to disregard its own rules and well-established principles oflaw.

1 On 13 April 1965 Respondent’s Counsel made the following submission:
“... by reason of the considerations arising from the limited scope of Article 7
(2) of the Mandate, or of the lapse of that Article, the conclusion is arrived at that
all the claims are inadmissible and the result would again be rejection of ... all
the Applicants’ ... submissions.”

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Moreover, ex facie the Court’s 1962 Judgment, it did not intend
deciding any part of the merits, for the aforesaid Order recording the
suspension of the proceedings on the merits is actually quoted in that
Judgment.

It will be observed that the Court’s conclusion and the operative part
of the 1962 Judgment respectively state that “the Court is competent
to hear the dispute on the merits’, and that it “finds that it has juris-
diction to adjudicate upon the merits of the dispute”. The word “‘dispute”’
obviously meant the issues as encompassed in the Applicants’ submissions
as set out in full in the Judgment at pages 324-326.

8. While it is true that the Court remarked in the course of its Judg-
ment that ‘the Mandate as a whole is still in force”, this remark could
not possibly have been intended to constitute a decision of any of the
issues embraced by Submission No. 1 or 2 or any other part of the
merits. The preliminary objections were argued on the assumption
that the Mandate was still in force 1, and even a preliminary finding
on this matter was therefore not necessary. Moreover, the Court could
not have intended saying that all the original provisions of the Mandate
were still in force, albeit in an amended form, because not only did it
carefully avoid dealing with the issue whether Article 6 still applied,
but a great deal of its reasoning on Article 7 suggests that, had it been
called upon to decide whether Article 6 still applied, as is contended in
the Applicants’ Submission No. 2, it would have held that it had ceased

to apply 2.

At no stage did the Court in 1962 specifically deal with the problems
arising from the disappearance of the League’s supervisory organs;
and no reference is made at any stage to the suggestion that after April
1946 supervisory functions were to be exercised by the United Nations.
All references to administrative supervision were omitted from the
quotations from the 1950 Opinion 3.

The Court must have realized in 1962 that if the Applicants’ first
submission failed, all the submissions had to be dismissed. It could
not have intended that if this happened any part of its Judgment should
have any further application; otherwise one would have the absurd

1 Preliminary Objections, pp. 299, 359; Oral Proceedings 1962, pp. 4, 16-17,
49, 52-54, 336-337; Counter-Memorial, Book. I, p. 166. The following statement
at page 332 of the 1962 Judgment is accordingly not correct: “The Respondent
contends that it [the Mandate] is not in force...” Also incorrect is the statement
that follows immediately thereafter (and which incidentally contradicts what has
just been quoted): “It is argued that the rights and obligations under the Mandate
in relation to the administration of the Territory of South West Africa being of
an objective character still exist ...°’ (The rest of the sentence also constitutes an
incorrect representation of Respondent’s argument, but in another respect.)

2 See paragraphs 46 to 49 of the Chapter of this opinion dealing with Submis-
sions 2, 7 and 8.

3 Compare quotation at pp. 333 and 334 of the 1962 Judgment with full statement
in 1950 Opinion, p. 136.

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result that a party who has in the final judgment been held to have no
legal right or interest in a claim nonetheless has, by virtue of an inter-
locutory decision, a judgment in its favour in respect of that claim or
part thereof.

9. Inasmuch as the voting in 1962 was eight to seven it follows that,
apart from all other considerations, no statement not made with the
approval of all the eight majority judges and not intended by all those
judges to constitute a decision could have effect as a decision of the
Court.

It is therefore relevant to observe that it appears from the separate
opinions of Judges Bustamante, Jessup and Sir Louis Mbanefo that
none of them intended deciding any part of the merits.

10. Judge Jessup’s opinion speaks for itself:

“But if the challenge to the existence of a ‘dispute’ in its legal
sense is raised in a preliminary objection to the jurisdiction of a
tribunal, the question is how deeply the Court must probe into the
facts and law in order to determine whether there is a ‘dispute’.

Suppose, for example, State A alleges in a diplomatic note to
State B that State B has violated a commercial treaty of 1880
between A and B. B in reply affirms that the treaty is no longer
in force. After futile negotiations, A submits the case to an inter-
national court in accordance with the terms of a treaty for pacific
settlement concluded by B with A. This treaty for pacific settlement
contains the ordinary provision that the parties agree that disputes
concerning legal rights may be submitted to an international
court by either party. B contends that the court has no jurisdiction
since there is no ‘dispute’ within the meaning of the treaty for
pacific settlement because A bases its contention on a treaty which
is no longer in force. The adjudication of the question whether
the treaty is in force and therefore whether A’s case rested upon
a legal right, is a question for the merits and not a question to be
settled on a plea to the jurisdiction. B in effect admits there is a
‘dispute’ but asserts that A’s substantive position is unsound.
It may be possible to imagine a case where the allegation of a
legal right was so obviously absurd and frivolous that the Court
would dismiss the application on a plea to the jurisdiction, but
such a situation would be rare. In any event, it is not the situation
in the instant cases.

In the instant cases, it is helpful to look first at the second
characteristic of the ‘dispute’ which has been noted above, i.e.,
that it must relate to the interpretation or the application of the
provisions of the Mandate. I do not see how it can be seriously
contended that this condition is not fulfilled since it is sufficient
basis for the jurisdiction of the Court if any of Applicants’ con-
tentions are so related. On the face of those contentions, and

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before the Court has examined them on their merits, the Court
must find that, assuming there is a ‘dispute’, it is one which relates
to the interpretation or application of the provisions of the Man-
date.”

The fact that the learned judge, after having made these remarks, made
some observations on the merits of the dispute is irrelevant, because
he could not possibly have intended to decide an issue which he had
just stated could only be dealt with at the merits stage of the cases.

11. That Sir Louis Mbanefo had no intention of deciding any part
of the merits appears from the first paragraph of his separate opinion:

“J 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 merits
of the case. The Court is concerned essentially at this stage with
the question of jurisdiction. The way in which the claims of the
Applicants 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.”

12. There is at least one further reason which, apart from those
advanced in the Judgment, would justify a conclusion that the Applicants
have no legal right or interest in the claim, namely that, whatever rights
the Applicants may have had under the provisions of the Mandate,
these lapsed on the dissolution of the League. On that date, either
the whole Mandate lapsed or at least those provisions, including Ar-
ticle 7, which depended on the existence of the League ceased to apply;
and, in any event, Applicants could not retain any rights held by them
as members of the League after terminating such membership. In either
event all the submissions, including Submission No. 1, must be dismissed.

Tt is common cause that Article 7 can no longer apply, and Applicants
can no longer hold any rights they may have had as members of the
League, unless the words “Member of the League of Nations” in the
Mandate are given a meaning which includes ex-members of the League
who were members at the time of its dissolution. In 1962 the Court
advanced three reasons for not giving these words their ordinary and
natural meaning !. The first two are in direct conflict with the reasoning
of the present Judgment; the third depends on the validity of the first

1 It seems unavoidable that before rejecting these reasons ali possible sources
of evidence on which they could have been based should be examined.

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two, and is in any event unfounded. I shall attempt to avoid as far as
possible a repetition of what is already stated in the Judgment.

13. The first of these reasons is recorded in the second paragraph on
page 336 of the 1962 Judgment which commences as follows:

“In the first place judicial protection of the sacred trust in each
Mandate was an essential feature of the mandates system.”

This statement is bare assertion for which no support is to be found
in the relevant instruments, in the travaux préparatoires, in the subsequent
conduct of the Parties, or in any other possible source of evidence. The
truth is that the concept of judicial protection of the sacred trust did not
exist, and this explains why nothing to that effect was said either before
or after the signing of the Covenant or the adoption of the Council
resolutions which embodied the various instruments of mandate.
This paragraph of the 1962 Judgment then proceeded as follows:

“The essence of this system, as conceived by its authors and
embodied in Article 22 of the Covenant of the League of Nations,
consisted, as stated earlier, of two features: a Mandate conferred
upon a Power as ‘a sacred trust of civilization’ and the ‘securities.
for the performance of this trust’. While the faithful discharge
of the trust was assigned to the Mandatory Power alone, the duty
and the right of ensuring the performance of this trust were given
to the League with its Council, the Assembly, the Permanent
Mandates Commission and all its Members within the limits of
their respective authority, power and. functions, as constituting
administrative supervision, and the Permanent Court was to
adjudicate and determine any dispute within the meaning of Article 7
of the Mandate. The administrative supervision by the League
constituted a normal security to ensure full performance by the
Mandatory of the ‘sacred trust’ toward the inhabitants of the
mandated territory, but the specially assigned role of the Court
was even more essential, since it was to serve as the final bulwark
of protection by recourse to the Court against possible abuse or
breaches of the Mandate.”

In this passage the Court apparently overlooked the fact that Article 22
of the Covenant required in express terms that “securities for the
performance of this trust should be embodied in this Covenant’, and
that there is not a word in the Covenant to suggest that either the
individual members of the League or the Court were to play any part
with regard to the performance of the trust. There is in any event no
evidence to be found anywhere to support the statement that the rights
and duties of ensuring the performance of the trust were—in addition
to the rights and duties given to the organs of the League—conferred
on all the members of the League. It follows that the suggestion that
individual members of the League were given powers of administrative
supervision over the mandatories is unfounded. The simple truth is that

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the authors of Articie 22 did not conceive of any role for the Court
with regard to the mandates system, and that is why the Court is not
mentioned in Article 22 of the Covenant.

13 (a). As already stated, the Court was mentioned for the first time
in connection with the mandates some time after the signing of the
Covenant, when a compromissory clause was proposed for the ‘B’
mandates. But neither at that stage nor at any other stage was there
any suggestion to the effect that the Court should be assigned the role
of ensuring performance of the sacred trust, or that it should serve as
a final bulwark of protection thereof; not a word to this effect, or which
may possibly be interpreted as suggesting anything of the kind, was said
at any time by anybody. On the contrary, what was said at the time
reveals that it was thought that the purpose of the compromissory clause
was to provide for disputes relating to national rights being referred
to the Court !.

13 (b). If the Court had been intended to fulfil this special role of
protection of the sacred trust, a provision to that effect would have
been embodied in the Covenant, and it would not have been left to the
Council to include this “super security” in the mandate declarations.
There could have been no certainty that all the members of the Council—
including the mandatories—would have approved such a provision, and
without the requisite unanimity the Council could not function. More-
over, the Council’s powers were confined to defining the “degree of
authority, administration and control” of the mandatory, and it could
have had no power to add to the securities for the performance of the
sacred trust since these securities had to be embodied in the Covenant.
Furthermore, even supposing that this important provision relating to
the Court’s special role had been intentionally omitted from the Covenant
because it was thought that it would be included in the instruments of
mandate, one would have expected that at the time the Covenant was
signed some reference to this would have been made. But the facts are
that, at the time, the Court was not even mentioned in the discussions.
It is perhaps relevant to record that the day before the Versailles Peace
Treaty (which included the Covenant) was signed, i.e., on 27 June 1919,
the draft mandates were before the Council of Four, but nobody sug-
gested that inasmuch as the Covenant, which was to be signed the next
day, did not provide for the judicial protection of the sacred trust, a provi-
sion to that effect should be inserted into the mandates. In fact on the
very day the Peace Treaty was signed the Milner Commission met in Paris,
and yet nobody suggested the inclusion of any provision relating to the
Court. It is significant that on this same day the minorities treaty with

1 To the facts recorded by Judge Sir Petcy Spender and Judge Sir Gerald Fitz-
maurice in their joint dissenting opinion, South West Africa, I.C.J. Reports 1962,
pp. 556-557, I wish to add that before Lord Milner made the remark referred to
in the second paragraph of page 557, Lord Cecil had observed that there would be
some advantage in withdrawing questions of personal claims by nationals from the
sphere of diplomacy—see Recueil des Actes de la Conference de la Paix, Vol. VI A,
pp. 348-349.

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Poland was signed, and this treaty contained a compromissory clause
coupled with the “deeming” clause which became a feature of the
minorities treaties, but nobody suggested that any similar provision
should be inserted in the mandates.

13/c). Judge Jessup attached some importance in his 1962 opinion to
the compromissory clauses in the minorities treaties, particularly in
order to establish that in 1920 a State could acquire a legal interest
in matters not affecting its own material interests +. That this is so is
not disputed, but the learned judge overlooked the difference in the
wording of the minorities treaties and the mandates. In the first place
the minorities treaties contained a deeming ciause which provided
that a difference of opinion arising out of the provisions of the treaty
“shall be held to be a dispute of an international character”; secondly,
the right of invoking the Court’s jurisdiction was limited to the Principal
Allied and Associated Powers and to other members of the Council of
the League, and, thirdly, the provision contained no requirement such
as the mandates relating to the settlement of the dispute. It should be
borne in mind that the minorities treaties were imposed on the defeated
nations and new States by the Great Powers. It is incredible that these
Powers would have limited the grant of substantive legal rights in the
case of these defeated nations and new States to a few States only, but
should have voluntarily granted in respect of mandates such rights
against themselves to all the members of the League. Judge Jessup rightly
remarked in his Modern Law of Nations, 1959, page 89:

“But the minorities treaties were obnoxious largely because they
carried the stigma of imposition upon small States by the great
powers, who were unwilling to accept like obligations in their own
territories.”

14, The second reason advanced in the 1962 Judgment for not giving
the words “Members of the League” their ordinary meaning was that:

“In the second place, besides the essentiality of judicial protection
for the sacred trust and for the rights of Member States under the
Mandates, and the lack of capacity on the part of the League or
the Council to invoke such protection, the right to implead the
Mandatory Power before the Permanent Court was specially and
expressly conferred on the Members of the League, evidently
because it was the most reliable procedure of ensuring protection

1 Further arguments on this issue advanced by Judge Jessup are dealt with in
the Counter-Memorial, Book II, Chapter V B; I do not consider it necessary to deal
with them in this opinion.

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by the Court, whatever might happen to or arise from the machinery
of administrative supervision.”

But the fact is that at the time of the establishment of the mandates
system the possibility of something happening to the machinery for
administrative supervision was not discussed or mentioned at all, and
was clearly not even contemplated. The above-cited reasoning of the
1962 Judgment is accordingly also neither warranted nor substantiated
by the facts.

15. The third reason given by the 1962 Judgment was that at the final
session of the League in April 1946 an agreement was entered into
between all the members of the League to continue the different mandates
as far as was practically feasible or operable, and therefore to maintain
the rights of members of the League itself. The agreement referred to is
inferred from this 1946 “dissolution resolution” and ‘‘the whole set of
surrounding circumstances which preceded, and prevailed at the session”.
Not only is the alleged general agreement based on inference, but the
preservation of the alleged rights of League members individually in
respect of Mandates is in turn inferred from this tacit agreement.

In essence these conclusions seem to rest on the proposition that
the dissolution resolution was adopted ‘‘precisely with a view of averting
... the literal objections derived from the words ‘another Member of
the League of Nations’ ”. But this proposition is, with respect, another
bare assertion. The facts are that the rights of members of the League,
or the possible consequences flowing from the meaning of the words
“another Member of the League of Nations”, were not discussed or
mentioned, expressly or impliedly, directly or indirectly, either before or
after the adoption of the said resolution. Nor does the resolution itself
make reference to any such matter. There is no evidence of any intention
to enter into any agreement relative thereto.

15 (a). In my view there is no substance in any of the reasons advanced
by the Court in 1962 for placing “no reliance” on the natural and
ordinary meaning of the words “another Member of the League of
Nations” in Article 7, and for holding that ex-members of the League
retained after the dissolution such rights as they may have had as mem-
bers of the League.

Judges Bustamante, Jessup and Mbanefo followed in some respects a
somewhat different line of reasoning.

16. Judge Jessup first considered the meaning of “Members of the
League” in Article 7 of the Mandate for Ruanda-Urundi held by Belgium.
After pointing out that in this Article Belgium agreed to the so-called
Open Door Principle which, inter alia, forbade Belgium to discriminate
in favour of her own nationals and against the nationals of other ““Mem-
bers of the League”, the learned Judge remarks:

“Jt is not apparent why it would be reasonable to say that while

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it would have been a violation of Belgium’s contractual obligation
so to discriminate against a French citizen in the matter of a
concession on 18 April 1946, the day before the dissolution of
the League, Belgium would have been free so to discriminate on
20 April 1946. On the contrary, if Belgium had so discriminated
on 20 April France could properly Gf diplomatic negotiations
failed to result in a settlement) have seized the Court of this dispute
concerning the interpretation or application of the Mandate,
relying on Article 13 of the Mandate for Ruanda-Urundi (which
contains a compromissory clause identical with that in Article 7
of the Mandate for South West Africa), and on Article 37 of the
Statute to which both Belgium and France are parties.”

The Judge thereupon concludes that if his aforesaid conclusion is sound,
the provisions of Article 5 of the Mandate for South West Africa which
required the Respondent to allow all missionaries, nationals of any
State Member of the League of Nations to enter into and reside in the
Territory for the purpose of prosecuting their calling, could not have
ceased to apply on the dissolution of the League. He thereupon concludes.
that the reference to ‘“‘another Member of the League” in the Mandates.
was ‘‘descriptive. of a class” and not “‘an imperative condition”.

The learned Judge thus bases a great deal of his reasoning on the
conclusion reached by him on the meaning of “Members of the League”
in the Ruanda-Urundi Mandate. But this conclusion is based on hardly
any reasoning at all. All we have is the Judge’s statement that it is not
apparent to him why a contrary result would be ‘‘reasonable”. He offers.
no reason why such a result would be unreasonable.

There is no evidence to justify an inference that the authors of the
mandates system intended that a State which has ceased to be a member
of the League should retain rights conferred on it as a member of the
League, and there is nothing unreasonable in a conclusion that a State
which has lost the qualification entitling it to the enjoyment of a right,
has lost that right. Whenever a right is terminated it would be possible
to say that what would have constituted a violation of an obligation
on the one day would be permissible the following day, but this is no
reason for saying that the right has not come to an end. Instans est finis
unius temporis et principium alterius. If France had resigned as a member
of the League on 19 April 1946, she would no longer have been entitled
to claim any rights under Article 7 of the Ruanda-Urundi Mandate on
20 April 1946. The fact that she still could have done so on 18 April
1946 is entirely irrelevant. The same consequence must have flowed
from the termination of membership of the League on 19 April 1946 as
would have followed had membership been terminated the day before,
or ten years sooner.

In my opinion there is no cogency in the reasons advanced by the
learned Judge for his finding that the words “Members of the League”

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were descriptive. His first reason is that it was fondly hoped that the
League system would become universal. I fail to see what bearing this
hope had on the meaning of these words. Had this hope been fulfilled
the words ““Members of the League” would have become synonymous
with “‘all States” as long as all States remained members of the League,
but even then ““Members of the League” could only have meant members
of the League.

The maxim cessante ratione legis, cessat ipsa lex is completely mis-
applied by the learned Judge. It is invoked by him to change the pro-
visions of an instrument: to amend Article 7 of the Mandate by sub-
stituting ““ex-member of the League which was a member at the dissolu-
tion of the League” for “Member of the League”. The maxim simply
means that where the reason for a law ceases, the law itself ceases,
and it in no way justifies an interpretation imposing on a State an
obligation it did not agree to. There is in any event no justification
for the view that the authors of the mandates system intended that
the privileges of ex-members should continue after the dissolution of
the League. Provision was made for the amendment of the Covenant
and the mandates by the organs of the League, and there was accordingly
no need for any agreement, express or implied, as to what would happen
in the event of the dissolution of the League. Had the issue been raised,
the answer would probably have been that it was left to the organs of
the League and the mandatories concerned to take such steps as were
considered reasonable in the light of circumstances prevailing at the
time of such dissolution; but it certainly cannot be said that all the parties
would have agreed that the rights of States who were members immedi-
ately prior to the dissolution of the League would continue after its
dissolution.

I must confess that Iam unable to understand the Judge’s “frustration”
argument. I know of no legal principle which requires that a provision
should continue to apply after the conditions for its application have
ceased to exist, simply because it would be capable of being complied
with if those conditions did still exist or are ignored.

Equally erroneous is Judge Jessup’s following approach:

“If the Mandatory claimed the right to limit the privileges to
missionaries who were nationals of States which were Members of
the League when the League came to an end, the claim would be
reasonable and it would avoid any charge that there was imposed
on the Mandatory an obligation more onerous than that which it
had originally assumed.” (Italics added).

If the learned Judge’s view that the expression “Member of the League”
was descriptive is correct, there would appear to be no reason for
limiting the privileges conferred on “Members of the League” to States
which were members on the dissolution of the League. This passage—

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and other passages—suggest that the learned Judge thinks that as long
as the League existed the words “Member of the League” had their
ordinary meaning, but that on the dissolution of the League they became
descriptive of States who were members at its dissolution. This means
that the same words had different meanings at different periods of time.
The learned Judge appears to have lost sight of the elementary principle
that all rights and duties under an agreement are determined in accor-
dance with the intention of the parties at the time the agreement is entered
into. No party can “claim” rights or privileges not properly derivable
from the agreement, and nobody other than a legislature can “impose”
duties not agreed to.

The opinion of Judge Jessup further advances the argument that if
the elements of the mandates which related to the welfare of the in-
habitants survived the League, then the rights of missionaries under
Article 5 and the rights of the inhabitants to their services should
also have survived the League despite the technical requirement that
these missionaries had to be nationals of members of the League. The
learned Judge appears to be confusing the Respondent’s duties towards
the inhabitants under the provisions of the Mandate and the rights
conferred on States, members of the League. In any event the survival
of those rights, which depended on the existence of members of the
League, depends on the meaning of the words “Member of the League”;
and the problem arising in regard thereto is exactly the same as that which
arises in regard to Article 7. The solution given to it is not made any
more valid by first interpreting Article 5, or provisions of other mandates
in which the words “Members of the League” appear, as applying to
ex-members of the League.

The learned Judge appears to revert to his descriptive test in the
following passage:

“After all, these ‘Members of the League’ were not just concepts,
‘ghosts seen in the law, elusive to the grasp’. They were actual
States or self-governing entities whose names could be recited.
The names of the original Members were listed in the Annex to
the Covenant, but it was not a fixed group; it fluctuated as new
Members were admitted or as old Members terminated their
memberships. Yet at any given moment—as for example the moment
of the dissolution of the League—the Mandatory would always
have been able to draw up, by names, a list of the States included

299

in the descriptive term ‘Member of the League’.

Rights are conferred by the constitution of a company on its members.
These members are not “ghosts seen in the law, elusive to the grasp”.
They are actual persons, whose names could be recited. The names of
the original members appear on a list, but it is not a fixed group; it
fluctuates as new members are admitted or as old members terminate

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their membership. At any given moment—as for example the moment
before the dissolution of the company—it would always be possible to
draw up, by names, a list of those included in the descriptive term
“member of the company”. This, however, affords no reason for saying
that the expression “member of the company” is descriptive in the
sense that the rights conferred on members, qua members, continue on
termination of membership whether during the lifetime of the company
or on its dissolution and liquidation. Whenever it is desired to confer
any rights on ex-members of a company, express provisions to that
effect are required.

17. Judge Bustamante came to the conclusion that rights conferred
on members of the League were not limited to the lifetime of the League
but extended to the whole duration of the Mandate !. The Mandate
does not state that the rights and duties of members will survive their
membership of the League. On the contrary their rights and duties were
held as “Members of the League”, and this obviously means that on the
termination of their membership their rights and duties as members also
terminated. The possibility of the Mandate surviving the League was
not contemplated, and there is no justification for inferring that, had
it been considered, all the parties, including the Respondent, would
have acknowledged that in such a case the rights and duties of members—
whatever they were—would continue despite their loss of membership.

The learned Judge concedes that the rights of States which voluntarily
resigned or were ejected from the League, terminated on the termination
of their membership; but he contends that the dissolution of the League
was not the result of a voluntary act of its members. He arrives at this
conclusion by having regard “to the historical facts which determined
the disappearance of the League of Nations”. These facts are (according
to the learned Judge): fa) that the League was already “greatly
weakened” before the Second World War, (b) that it remained “paralysed”
for the whole of the war, (c) that the results of the conflict “completely
upset international realities” by profoundly modifying the former
conformation and distribution of States on which the League of Nations
had been based, (d) that the League was already “dead” when it was
dissolved, (e) that Articles 77, 79 and 80 of the Charter established
the “compulsory character” for the transformation of former mandates
into modernized tutelary systems. The expressions “weakened”, “para-
lysed” and ‘‘dead” have no known legal connotation in the context
in which they are used, but whatever their meanings may be, the fact
is that the League of Nations was still in existence as a legal entity,
and its members still had the qualification and the rights and duties
of members of the League, up to the time of its dissolution. They were

1 It will be recalled that the survival of the Mandate was assumed.

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consequently not powerless. Equally the Charter could have provided
for the compulsory transformation of former Mandates into trusteeship
agreements, or to use the Judge’s words “en régimes tutélaires moderni-
sés’”—-see International Status of South West Africa, I.C.J. Reports 1950,
page 140, where it was held that “the Charter does not impose on the
Union an obligation to place South-West Africa under the Trusteeship
System”.

In any event, even if the provisions of the Charter provided for such
compulsory transformation, they were voluntarily agreed to by the
members of the League. One cannot voluntarily agree to enter into an
agreement and then after having done so contend that it (the latter)
was not voluntarily entered into because of the prior agreement.

‘The members of the League voluntarily dissolved the machinery
created for the supervision of the Mandatory, and voluntarily terminated
their qualifications as members which was a sine qua non to their holding
rights and duties under the Mandate, and members. of this Court have
no right to disregard the legal effects of these voluntary acts, however
much they may dislike them.

18. Sir Louis Mbanefo thought that the rights and obligations em-
bodied in the Mandate “became as it were maintained at the level on
which they were on the dissolution of the League”.

The reason advanced for this conclusion is that the purpose of the
Mandate has not yet been achieved. There is no principle of law to the
effect that parties to an instrument cannot lose their rights and obliga-
tions until the purpose of the instrument in question has been achieved;
nor is there any principle that, if parties voluntarily terminate their
qualifications necessary for holding certain rights and obligations, such
rights and obligations are nonetheless maintained “at the level” they
were on the date of the loss of such qualification.

19. In all the articles of the Covenant except Articles 2, 9, 21 and 24
the words ““Member(s) of the League” are used. In terms of Article 3
the Assembly consists of representatives of “Members of the League”,
and “each Member of the League” was given one vote. Article 4 provided
for the election of “four other Members of the League” to the Council.
Article 6 imposed the obligation to contribute to the expenses of the
Secretariat on “the Members of the League”. Article 7 dealt with the
diplomatic privileges of representatives of “Members of the League”.
Articles 8, 12 and 15 imposed various obligations on “Members of the
League”. Article 22 dealt with equal opportunities for trade and com-
merce of “other Members of the League”. Article 1 (1) provided which
States would be the original “Members of the League”. Article 1 (3)
provided that any ““Member of the League” could withdraw after giving
two years’ notice. Article 16 (4) provided for declaring a “Member of
the League” to be no longer a “Member of the League”. It is clear that
the expression “Member of the League” was used to mean a State which

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in fact was a member of the League at the time of the application of the
particular provision in which it appears.

Any interpretation of this expression in any of these provisions to
the effect that States which had never been or had ceased to be members
of the League are included would be ridiculous and there appears to be
no sound reason for not giving it the same meaning it had in the Cove-
nant, wherever it occurs in the instrument of mandate.

FURTHER GROUNDS For DISMISSING SPECIFIC SUBMISSIONS

Article 6 of the Mandate

(Applicants’ Submissions Nos. 2,7 and 8}

1. At the outset I wish to repeat that Article 7 (2) of the Mandate
Declaration is the only provision upon which the jurisdiction of this
Court could in these cases be founded. The said Article limits such
jurisdiction to disputes relating to the interpretation or application of
the provisions of the Mandate; i.e., the provisions contained in the
Mandate Declaration. It follows that provisions of other instruments
may only be considered if they have been incorporated into, or have
bearing on the legal effect of the provisions of the Mandate Declaration.
Thus, for example, Article 22 of the Covenant is only relevant when
considered in conjunction with the provisions of the Mandate Declaration.
Divorced therefrom it has no relevance in these proceedings.

2. In my 1962 opinion’ I came to the conclusion that Article 6 of the
Mandate ceased to apply on the dissolution of the League. I adhere
to that opinion.

My reasons fur holding that Article 6 of the Mandate Declaration,
and also Article 22, paragraph 7, of the Covenant of the League, no
longer apply are briefly se‘ forth in the following paragraphs.

3. The obligation imposed on the Respondent by Article 22, para-
graph 7, of the Covenant and Article 6 of the Mandate Declaration was an
obligation to report to a particular body, viz., the Council of the
League.

Article 22 of the Covenant of the League provided that to certain
colonies and territories, which included German South West Africa,
there should be applied the principle that the well-being and develop-

1 Judgment on Preliminary Objections (Z.C.J. Reports 1962, pp. 575-662).

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ment of the peoples of such colonies and territories formed a sacred
trust of civilization, “and that securities for the performance of this
trust should be embodied in this Covenant”. The Article then continued
to state that the best method of giving practical effect to this principle
was that the tutelage of such peoples should be entrusted to certain
advanced nations, and that this tutelage should be exercised by such
nations as “mandatories on behalf of the League”.

The only securities embodied in the Covenant relative to reporting
and accounting by the mandatory are be to found in paragraphs 7 and 9
of Article 22, and they read as follows:

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

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

And in the relevant Mandate Declaration the only reference to re-
porting and accounting is to be found in Article 6, which reads as follows:

“The Mandatory shall make to the Council of the League of
Nations an annual report to the satisfaction of the Council, con-
taining full information with regard to the territory, and indicating
the measures taken to carry out the obligations assumed under
Articles 2, 3, 4 and 5.” (Italics added.)

This duty to make a report to the satisfaction of the Council is herein-
after referred to as the Mandatory’s duty to report and account, and
the corresponding rights of the Council in that regard are referred to
as the Council’s powers of supervision.

4. Article 6 of the Mandate Declaration, and paragraphs 7 and 9 of
Article 22 of the Covenant of the League, depended for their operation
on the existence of the League of Nations, inasmuch as without a League
in existence there could not be a Council of the League. The League
was dissolved in 1946 and the aforesaid provisions accordingly must as
from that date have ceased to apply unless some other body, such as,
for example, the General Assembly of the United Nations, was sub-
stituted for the Council of the League as the body to which the Respon-
dent had to report and account.

Such substitution could have come about only if:

(a) there exists a principle or rule of international law which provides.
for such substitution to take effect automatically—i.e., without
any question of consent on Respondent’s part, or

(b) the Respondent consented to such substitution.

Itis now common cause that there is no principle or rule of international
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law which could have brought about such an automatic succession !.
There is certainly no principle to be found in any legal system to the
effect that, where the creators of a trust (or anything in the nature of a
trust) also create an organ to supervise the administration of that trust,
and they themselves thereafter dissolve such organ without substituting
another, a court of law may effect such substitution.

The only issue to be determined, therefore, is whether Respondent
ever consented to such a substitution. It is common cause that no agree-
ment to which Respondent was a party contains any express provision
effecting such substitution.

The issue, therefore, really involves an enquiry as to whether Respon-
dent tacitly agreed to such a substitution—i.e., whether any agreement
to which Respondent was a party contains an implied term to that
effect, or whether Respondent by its conduct tacitly consented to such
a substitution.

In this regard only three possibilities arise for practical consideration,
viz.:

(i) whether the mandate instrument must be interpreted as embodying
an implied term to the effect that Respondent would upon the
dissolution of the League become obliged to report and account
to another body such as, for example, the General Assembly of the
United Nations;

(ii) whether, if the mandate instrument does not contain such an
implied term, the Charter of the United Nations embodies such
a term;

(iii) whether, in the absence of any such implied term in the afore-
mentioned instruments, Respondent at the time of the creation
of the United Nations and the dissolution of the League, or there-
after, by its conduct tacitly consented to such a substitution.

I shall deal separately with these three matters but, before doing so, I
wish to restate certain basic principles of interpretation concerning
the reading of implied terms into an agreement.

5. The universally accepted basic principle of interpretation, applic-
able in municipal law and international law alike, is that in the interpre-
tation of all contracts, statutes and instruments one should endeavour
to determine the true intention of their authors. An implied term may
be read into an agreement only if there arises from the agreement itself,

1 Although the Applicants in earlier stages of the proceedings used such ex-
pressions as “automatic succession”, “doctrine of succession” and “principle of
succession” (Observations on Preliminary Objections, pp. 429, 443 and 445; and
see also Oral Argument on Preliminary Objections, p. 302), they intimated in the
oral proceedings on the merits that such terminology was ill chosen, and they stated
categorically that they did not rely on any “international legal principle of devolution
or succession aliunde the Mandate”. Not one of the members of the Court in 1962
relied on any principle or rule of succession.

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and the circumstances under which it was entered into, a necessary
inference that, although a suggested term was not incorporated in the
agreement in so many words, the parties must have had a common
intention that it should apply. A term should only be implied if the
evidence reveals that the parties in fact intended it to apply, or if it can
confidently be said that had it been suggested to them at the time they
would have acknowledged that it fell within the scope of their agreement.
It follows that a term cannot be implied if it goes beyond the declared
scope and object of an instrument, or would involve radical changes or
additions thereto, or would do violence to clear and unambiguous
express provisions thereof, or if it is inconsistent with the admissible
extraneous evidence relating to the intention of any of the parties.
It is not sufficient to find the intention of some of the parties; a term
can only be implied if it reflects the intention of a// the parties. See
South West Africa cases, I.C.J. Reports 1962, pages 576-591.

6. I now proceed to consider whether the Mandate Declaration, read
with Article 22 of the Covenant of the League, contains any such implied
term, i.e., that on the demise of the League an organ or organs of a
future international organization would be vested with the powers of
the organs of the League with regard to mandates, and that the manda-
tory would be obliged to report and account to such an organ or organs.

(a) Would such an implied term do violence to clear and unambiguous
express provisions of the Covenant and the Mandate Declaration?
The answer is in the affirmative. In terms of paragraphs 7 and 9 of Article
22 of the Covenant and Article 6 of the Mandate the Respondent accepted
an obligation to render annual reports to the Council of the League.
The words of these provisions are capable of one construction only.
They are clear and unambiguous. The Council of the League was an
organ of the League specifically provided for by the Covenant, which
defined its functions and prescribed its procedures. Thus Article 4 of the
Covenant provided:

“1. The Council shall consist of Representatives of the Principal
Allied and Associated Powers, together with Representatives of
four other Members of the League. These four Members of the
League shall be selected by the Assembly from time to time in its
discretion. Until the appointment of the Representatives of the
four Members of the League first selected by the Assembly, Re-
presentatives of Belgium, Brazil, Spain and Greece shall be members
of the Council.

2. With the approval of the majority of the Assembly, the Council
may name additional Members of the League whose Representatives
shall always be members of the Council; the Council with like
approval may increase the number of Members of the League to
be selected by the Assembly for representation on the Council.

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2bis. The Assembly shall fix by a two-thirds majority the rules
dealing with the election of the non-permanent members of the
Council, and particularly such regulations as relate to their term
of office and the conditions of re-eligibility.

3. The Council shall meet from time to time as occasion may
require, and at least once a year, at the seat of the League, or at
such other place as may be decided upon.

4. The Council may deal at its meetings with any matter within
the sphere of action of the League or affecting the peace of the world.

5. Any Member of the League not represented on the Council
shall be invited to send a Representative to sit as a member at any
meeting of the Council during the consideration of matters specially
affecting the interests of that Member of the League.

6. At meetings of the Council, each Member of the League
represented on the Council shall have one vote, and may have not
more than one Representative.” (Italics added.)

And Article 5 (1) of the Covenant provided that,

“Except where otherwise expressly provided in this Covenant
or by the terms of the present Treaty, decisions at any meeting
of the Assembly or of the Council shall require the agreement of
all the Members of the League represented at the meeting.” (Italics
added.)

All these provisions were incorporated by reference in Article 22,
paragraphs 7 and 9, of the Covenant, and in Article 6 of the Mandate
Declaration. The obligation to report and account was confined by
clear and unambiguous language to the Council of the League and did
not include an obligation to report and account to any other body. The
addition of a new security not embodied in the Covenant and having
the effect of substituting an organ of another institution for the Council
of the League would undoubtedly constitute radical changes and additions
to both the Covenant and the Mandate Declaration.

(b) Moreover, such an implied term would go beyond the declared
scope and object of the instruments in question. It is true that the general
object of the parties was that the principle should be applied “that the
well-being and development” of the peoples of South West Africa
“should form a sacred trust of civilization”; but their object was also
that this purpose should be achieved in a particular manner, i.e., within
the framework of Article 22 of the Covenant. The object was, in a sense,
to define the international status of South West Africa, to create an inter-
national régime; but an integral part of the definition of the régime, was
supervision by the Council of the League. This appears clear not only from
the very provisions of Article 22 of the Covenant, but also from the tra-
vaux préparatoires, which reveal that the general provisions would not
have been agreed to had the Article not contained the specific provisions
relating to the methods devised to give practical effect thereto. President
Wilson reflected the attitude of the parties at the time when he said:

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“no one should accept the scheme unless he was shown how it was
going to work :.”

It was with considerable reluctance that the Respondent, New Zealand
and Australia agreed to the mandates system devised in Article 22 of
the Covenant. On what possible basis can it now be said that their
object was to create an international régime which imposed upon them
obligations other than those specifically agreed to by them?

Indeed, it was in order to avoid a stalemate that the Respondent
and other States were prepared to accept Article 22 of the Covenant as
a compromise. The contemporary statements of the South African
Prime Minister and others leave no room for doubt that they were
agreeing to supervision by the Council of the League only, and not to
that of any organ of any other institution. For Australia and New Zealand,
Article 22 “represented the maximum of their concession’’?, and South
Africa agreed thereto because, in the words of General Botha, “the
League of Nations would consist mostly of the same people who were
present there that day, who understood the position...” 3.

(c) The fact that Article 22 was the result of a compromise is in
itself, apart from all other considerations, sufficient reason for not
reading into the instruments in question, by way of implication, that
the Respondent and other mandatories had agreed to obligations of
reporting and accounting which they were not asked to agree to, and
which would have exceeded what was required to effect the compromise.

In these circumstances it cannot be said that the suggested implied
term was contemplated, or that all or any of the parties would have
agreed that it fell within the ambit of their general intent had the matter
been raised when the Covenant of the League and the Mandate Decla-
ration were agreed to.

(d) The possibility of the dissolution of the League at some future
date was not contemplated at the time, and there would, therefore, not
have been any agreement or intention as to what would happen to the
Mandate in such an event. Had it been suggested at the time that pro-
vision should be made for such an eventuality the reaction would proba-
bly have been that, inasmuch as specific provision had been made for
the amendment of both the Covenant and the Mandate Declarations
by, or with the consent of, the organs of the League, it should be left to
those organs and the respective Mandatories to do what they considered
to be in the best interests of all concerned in the circumstances prevailing

‘at the time of such dissolution.

The possibility that the League would at some future date be dissolved
by its members without providing for supervision of the administration
of mandates was definitely not foreseen by its founders, and it is impossi-
ble to determine what the unanimous reaction, if any, would have been

1 Foreign Relations of the United States: The Paris Peace Conference, Vol. IIl,.
pp. 788-789.

2 Jbid., p. 800.

3 Ibid., pp. 801-802.

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had such a possibility been raised. The probability is that their reaction
would have been that if they, as Members of the League, were ever to
dissolve the League without providing for the transfer of its powers
to another organization, those provisions which depended on the
existence of the League would simply cease to apply. In the circumstances
that would obviously have been their intention. It can, however, be said
with certainty that the reaction of some of the parties, including the
Respondent, would have been that they were not agreeing to any auto-
matic transfer of the supervisory powers of the League to the organs of
an unknown future international organization. They would at least
first have required assurances with regard to the constitution of such
an organization before agreeing to any such automatic substitution.
Had they been told that the constitution of this future international
organization would not retain the unanimity rule of the League, there
can be no reason to suppose that their consent would nevertheless have
been given.

(e) It has been suggested that inasmuch as the League of Nations
during its lifetime constituted, or represented, what may be called the
“organized international community” (at times expressions such as
“family of nations” or “civilized nations of the world’’ were used instead),
and inasmuch as this community is now regarded as being constituted,
or represented, by the United Nations Organization, the League should
be equated with the United Nations, and thus the way is paved for
substituting an organ of the United Nations for the Council of the
League as the supervisory body with respect to mandates *.

The fallacies in reasoning along the line of the so-called “organized
international community”, with the object of establishing a contention
that the mandate instrument embodied an implied term such as afore-
stated, are legion. It disregards firstly the fact that, although the ex-
pression “organized international community” and the other expressions
mentioned may in certain contexts serve some useful purpose as being
descriptive of a collectivity of States, they have no legal significance
whatever. In particular such expressions are not to be understood as
conveying that outside or independently of actual international organi-

1 The contentions advanced by the Applicants on the basis of their so-called
“organized international community theory’ have not been consistent. At one
stage in the course of the proceedings Applicants relied on an implication to be
read into the Mandate Declaration, which by itself, and without any question of
further consent on Respondent’s part, caused the United Nations Organization to
be substituted for the League as the supervisory body in respect of mandates
(vide Reply, p. 320). For the present I am concerned with the “organized inter-
national community” theory only in this sense. I shall revert later to the different
form which the argument took during the oral proceedings. It is, however, in my
view, not without significance that in the ultimate event Applicants found it impossi-
ble to maintain the theory in its above sense, and in particular that they no longer
contended that a substitution of supervisory organs occurred or could occur without
fresh consent on the Respondent’s part.

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zations, constituted by agreement, there exists a legal persona, or an
entity of legal significance, known as “the organized international
community”, etc. Such a notion would be entirely fallacious and mis-
leading. Furthermore, the reasoning in question either disregards the
legal principle that a party cannot be bound by a suggested term to which
it did not agree, or it disregards the fact that the Respondent agreed
to the supervision of a particular body only, viz., the Council of the
League—an organ composed in a particular manner and regulated by
definite and binding rules of procedure—and not to the supervision of
an organ of any other body, and would, in any event, almost certainly
not have agreed to the supervision of an organ such as the General
Assembly of the United Nations had it been asked to do so. It entirely
disregards the important differences between the League and the United
Nations, particularly the procedural provisions relating to the functioning
of their organs, and it disregards the clear proof afforded by a mass of
evidence that the parties to the relevant instruments neither intended
nor contemplated such a result. The truth is that the authors of the
mandates system did not contemplate the possibility that the League
would cease to constitute or represent what in a sense may be regarded
as the “organized international community” or ‘‘the family of nations”
or “the civilized nations of the world”; and the question whether the
League’s functions would be transferred to some future organization
constituting or representing what could then be described as the “‘orga-
nized international community”, ‘“‘the family of nations” or “the civilized
nations of the world” did therefore not arise. If it should have arisen,
the Respondent and many other States would clearly not have conceded
that they were agreeing to supervision at some unknown date in the
future by some unknown body with an unknown constitution.

(f) In this connection the differences between the League of Nations
and the United Nations Organization, referred to above, are of particular
significance. I shall deal with them later. At this stage I only wish to
emphasize one of them. The obligation to report and account to the
Council of the League was substantially different from what an obli-
gation would be to report and account to any organ of the United
Nations. By express provision in the Covenant, the Council of the League
of Nations had, in respect of its functions concerning mandates, to be
assisted by the Permanent Mandates Commission, which was a body of
independent experts; whereas there is no corresponding body in the
United Nations. The Trusteeship Council of the United Nations, like
all other organs of that institution, consists of government representatives
of member States. Moreover, whereas the unanimity rule prevailed in
the Council of the League, the General Assembly of the United Nations
can arrive at its decisions by a bare majority, or in important matters
by a two-thirds majority, while in the Security Council seven votes

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(including those of the five permanent members) out of 11 are sufficient 1.
This difference was acknowledged by this Court in South West Africa—
Voting Procedure, Advisory Opinion of 7 June 1955 in the following
passage:

“The voting system is related to the composition and functions
of the organ. It forms one of the characteristics of the constitution
of the organ. Taking decisions by a two-thirds majority vote or by a
simple majority vote is one of the distinguishing features of the Gene-
ral Assembly, while the unanimity rule was one of the distinguishing
features of the Council of the League of Nations. These two systems
are characteristic of different organs, and one system cannot be
substituted for the other without constitutional amendment. To
transplant upon the General Assembly the unanimity rule of the
Council of the League would not be simply the introduction of a
procedure but would amount to a disregard of one of the charac-
teristics of the General Assembly. Consequently the question of
conformity of the voting system of the General Assembly with that
of the Council of the League of Nations presents insurmountable

229

difficulties of a juridical nature ?.

(g) It is significant that no State which was a party to the Covenant
of the League—or any other State for that matter—at any material
time alleged that the mandate instrument must be interpreted as em-
bodying an implied term to the effect that Respondent would upon the
dissolution of the League become obliged to report and account to
another body, such as, for example, the General Assembly of the United
Nations. During the discussions concerning the future of the mandates
by the founders of the United Nations in the years 1945-1946, and by
the Members of the League at its final session in April 1946, there was
ample opportunity, and every incentive, for representatives to refer to
such an agreement, if one existed. As J shall show later it was common
cause at the time of the dissolution of the League that no provision had
been made in any instrument for the transfer of the League’s activities
relative to the mandates to the United Nations.

7. A finding that the functions of the Council of the League, under
the Mandate Declaration, as read with Article 22 of the Covenant of
the League, became vested in the organs of the United Nations by virtue
of an implied provision in the said instruments would go beyond their
declared scopé and object, would involve radical changes thereto, and
would not only do violence to their clear and express language but would
amount to a total disregard of the evidence relating to the common

i Since the recent increase in the membership of the Security Council the require-
ment is nine votes (including those of the five permanent Members) out of 15.
2 LC.J. Reports 1955, p. 75.

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intention of the parties. Such a finding would impose an obligation on
the Respondent to which it did not agree, and to which it would not
have agreed had it been asked to do so. It would constitute legislation
by the Court disguised as interpretation. No court, including this Court,
has the power to make a party’s obligations different from, or mure
onerous than, those to which he has consented. Judicis est jus dicere,
non dare.

8. In the preceding paragraphs J have dealt with the question whether
there can be read into the Mandate Declaration an implied term which
by itself brought about the result that upon the dissolution of the League
an organ or organs of the United Nations were substituted as the super-
visory authority in respect of mandates and that Respondent became
obliged to report and account to such an organ or organs. It may be
convenient at this stage to deal very briefly also with a related matter,
to the extent that it also concerns the interpretation of the mandate
instrument, and that is the suggestion that the obligation undertaken
by Respondent in Article 6 of the Mandate was not an obligation to
submit to the specific supervision of particular League organs, but an
obligation to submit to “international supervision” generally, i.e., an
obligation of “international accountability’ +. Many of the reasons
which I have mentioned as running counter to the proposition that an
implied term of the nature and content aforestated must be read into
the Mandate Declaration also militate against the suggestion that the
Mandatory’s obligation was one of “international accountability”.
Not only would such a reading of the Mandate Declaration, and of
Article 22 of the Covenant, do violence to the clear and unambiguous
provisions of the said instruments, but it would in effect go beyond the
declared scope and object of such instruments. It would, moreover,
be in conflict with the probabilities and the events and surrounding
circumstances at the time of the framing of Article 22 of the Covenant
and the Mandate Declaration.

It is also significant that for more than 25 years after the creation of
the mandates system the authors thereof did not consider that the
mandatories had bound themselves to “international supervision”
generally (as opposed to supervision by the Council of the League),

1 This contention was one of the links in the proposition into which Applicants
finally transformed their “organized international community” theory in the oral
proceedings on the merits. The contention is now to the effect: (a) that inasmuch
as Respondent’s obligation was one of “international accountability” this obligation
could not, and was not, terminated as a result of the dissolution of the League
but continued in existence; (b) the only effect which the dissolution of the League
could have had was that the said obligation would have become inoperative for
lack of a supervisory organ, unless a new supervisory organ was appointed to
which the Mandatory would be obliged, through fresh consent on its part, to
report and account, and that Respondent in fact gave the necessary consent to
the substitution of the General Assembly of the United Nations as such new super-
visory organ. (C.R. 65/2, pp. 40-60 and C.R. 65/30, pp. 52-53.)

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and the possibility that this could be the meaning of the Mandate Decla-
rations, as read with the Covenant, did not even occur to a single repre-
sentative of any State during that period. There is accordingly no justi-
fication for transforming, under the guise of interpretation, the obligation
to report and account to the Council of the League into an obligation
to submit to “international supervision”, or to supervision by “the
international community” or the “family of nations” or the “‘civilized
nations of the world”, and thus to impose on Respondent an obligation
to which it did not agree.

9. The next question is whether the Charter of the United Nations
contains an implied term which effected a substitution of any of the
organs of the said institution as the supervisory body, in the place of
the Council of the League.

(a) The United Nations is not, and was not intended to be, the
League of Nations under another name. It is a new international organi-
zation which came into existence six months before the League was
dissolved. Some, but not all, the members of the League were founder
members of the United Nations. Two of the major powers in the United
Nations, the United States of America and the U.S.S.R., were not
members of the League at its dissolution. The United States of America
never was a member of the League and the U.S.S.R. was expelled from the
League in December 1939. Both these States were opposed to any notion
that the United Nations was to be the League under a different name,
or was to be an automatic successor to the League’s assets, obligations,
functions or activities. The discussions in the Preparatory Commission
of the United Nations, the resolutions adopted by the General Assembly
of the United Nations pursuant to the Preparatory Commission’s
recommendations, and the formal treaties concluded between the League
and the United Nations, as well as statements made by member States on
numerous occasions, provide conclusive proof that there was no auto-
matic succession. Had it been the intention of the parties to the Charter
to transfer the functions of the Council of the League with respect to
mandates to an organ of the United Nations, such intention would have
been expressed in positive terms. Although the mandates were specifically
referred to in the Charter of the United Nations, there is no reference
in any of the provisions of the Charter, or in any of the discussions at the
time of the drafting of the Charter, to any intended transfer.

(b) There can be no question but that the authors of the Charter
must have realized that upon the dissolution of the League the provisions
in the mandate instruments concerning reporting and accounting would
become inoperative unless some arrangement was made to substitute a
new supervisory organ to which the mandatories would be obliged to
report and account; just as the said members realized that the dissolution
of the Permanent Court of International Justice would render inoperable
clauses in treaties or conventions providing for adjudication of disputes
by the Permanent Court. But, whereas by Article 37 of the Statute of

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the Court express provision was made for substituting this Court for the
Permanent Court in all treaties and conventions in force !, there is no
corresponding provision substituting any organs of the United Nations
for the Council of the League in respect of the supervision of mandates.
Had it been intended that one or other of the organs of the United
Nations should take the place of the Council of the League relative to
the supervision of mandates, such a provision would undoubtedly have
been inserted in the Charter.

(c) Apart from the sacred trust referred to in Chapter XI of the
Charter, the founders of the United Nations contemplated only one
form of trusteeship, namely that provided for in Chapters XII and XIII,
and there was no contemplation of any organs of the United Nations
supervising mandates concurrently with the existence of the trusteeship
system 2, Article 77 (1) of the Charter provides that the trusteeship system
shall apply, inter alia, to such territories ‘now held under Mandate”
as may be placed under the system by means of trusteeship agreements,
and it must therefore follow that the trusteeship system could not auto-
matically apply to a mandated territory. To place a mandated territory
under the trusteeship system a formal agreement had to be concluded.

(d) I now proceed to consider Article 80 (1) of the Charter, and in
particular its legal effect relative to Article 6 of the Mandate Declaration.
Article 80 (1) reads as follows:

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

The ordinary grammatical meaning of the words commencing with
“nothing in this Chapter” is that Chapter XII should not be construed
as in or of itself (i) altering in any manner the rights whatsoever of any
States, or (ii) altering in any manner the rights whatsoever of any peoples,
or (iii) altering in any manner the terms of existing international instru-

1 At one stage in the proceedings the Applicants advanced a contention that
Article 37 of the Statute of the Court was redundant inasmuch as, in their submis-
sion, the new Court would, by reason of a principle of automatic succession,
have become vested with the powers of the old Court in respect of treaties and
conventions in force even without any provision such as contained in Article 37.
(Observations on Preliminary Objections, pp. 443-444). This Court in the 1962
Judgment on the Preliminary Objections did not accept the Applicants’ automatic
succession argument. The argument was not repeated in the subsequent proceedings,
and is in my view without substance.

2 Vide in this regard the Advisory Opinion of 1950 at p. 140.

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ments to which members of the United Nations may respectively be
parties. It is common cause that the Mandate Declarations were inter-
national instruments, and the aforesaid provision accordingly directs
in express terms that Article 80 (which Article is part of Chapter XII):
should not be construed in or of itself as altering in any manner the terms
of existing mandate declarations. Apart from any other considerations,
this clear and unequivocal instruction bars any interpretation of Article
80 (1) which would have the effect of amending Article 6 of the Mandate
Declaration for South West Africa by substituting an organ of the
United Nations as the supervisory body in the place of the Council of
the League. This is in itself a complete answer to those who contend
that Article 80 (1) was intended to safeguard the protection afforded
to the peoples of the mandated territories by the provisions relative to
supervision of the mandates until such time as trusteeship agreements
were concluded. The truth is that the Article does not provide for, or
“pre-suppose”’, the continuation of rights where such rights would
otherwise have terminated either by reason of the provisions of the
instrument containing them, or for some other valid reason. It merely
safeguards rights in the sense that Chapter XII must not be construed
as by itself changing any rights.

It is true that this Court, in effect, construed Article 80 (1) in 1950 in
International Status of South West Africa, I.C.J. Reports 1950, page 128
at 133, as affording support for its conclusion that the functions of the
organs of the League had been transferred to the General Assembly of
the United Nations, and that Respondent’s former duty to account
to the organs of the League had been converted into a duty to account
to the General Assembly of the United Nations. However, careful further
attention was given to this Article during the hearing of deliberations
on the preliminary objections in 1962. In the result not one of the judges
in 1962 placed any reliance on the Article for the purposes of their
opinions and judgment, and some of the minority opinions demonstrated
very forcibly that it would be fallacious to regard the Article as affording
support for any suggested transfer, devolution or ‘“carry-over” of
functions from the League and its Members to the United Nations and
its Members. See South West Africa, I.C.J. Reports 1962, e.s., at pages
516, 615, and 646-650. In view of these developments one would have
thought that no argument in support of the Applicants’ contentions
would again be sought to be based on Article 80 (1)?.

1 With regard to the significance and effect of the Article the Applicants them-
selves have adopted a vacillating attitude. In their Memorials Applicants placed
strong reliance on Article 80 (1) without stating what the legal effect of the Article
was (Memorials, p. 88). In the preliminary objections proceedings in 1962 they
contended that the Court in its 1950 Opinion had interpreted Article 80 (1) as
having a positive character of safeguarding and maintaining rights, and they
asked the Court to reaffirm the 1950 Opinion. (Oral Proceedings on the Preliminary
Objections, pp. 287-290.) In the oral proceedings on the merits, however, the
Applicants submitted that the said Article did not establish, constitute or maintain

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Article 80 (1) is clear and unambiguous. But even if it were not so,
the relevant facts preceding the framing of the Charter as well as the
subsequent conduct of the parties concerned, would sufficiently demon-
strate the impossibility of inferring any implied term of “presupposition”
to the effect that the General Assembly of the United Nations was
substituted for the organs of the League in the mandate declarations.

The discussions at the time of the drafting of Article 80 (1) reveal
no evidence that the natural and ordinary meaning of the words of the
Article does not express the true common intention of the parties. On
the contrary, they reveal that the Article states exactly what it was
intended to state.

The representative of the United States stated in unequivocal terms
that the proposed Article, which later became Article 80 (1), was not
intended to increase or diminish any rights, and the final report of the
Committee made it clear that the Article was not to be interpreted as
altering the provisions of the mandates. Respondent had by then already
intimated its claim that the Mandate for South West Africa should be
terminated and that the territory should be incorporated as part of the
Union of South Africa. This intimation was made at the San Francisco
conference “so that South Africa may not afterwards be held to have
acquiesced in the continuance of the mandate or the inclusion of the
territory in any form of trusteeship under the new international organi-
zation” !. The provisions of Article 6 could not survive the League
unless they were amended by substituting some other supervisory
authority for the League to which Respondent had to report and account,
and there is no evidence in the Charter, or in its history, of any intention
to thus amend the said Article, or of any supposition that such amend-
ment would automatically result from the provisions of any of the
instruments in question.

The suggestion that Article 80 (1) served to confirm the understanding
of the authors of the Charter that certain rights, including those under
mandate, did continue to exist, has no bearing on the question in issue.
Of course the authors of the Charter must have realized at the time when
Article 80 (1) was drafted that rights under the Mandate were then in
existence. But that was nearly a year before the dissolution of the League;
and the Article does not, and was not intended to, reflect any under-
standing as to what would happen after the dissolution of the League
with regard to mandates not converted to trusteeship.

10. I now proceed to examine the conduct of the Respondent and other
States subsequent to the drafting of the Charter, and I do so with the

any rights, but merely served to “confirm the understanding of the authors of
the Charter that certain rights, including those under mandates, did continue to
exist”. This of course affords no help at all in the problem under discussion, as
I shall show.

1 Committee II/4 on 11 May 1945.

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following purposes in mind; firstly, to ascertain whether such conduct
reveals any evidence that the parties to the Covenant of the League or
the Mandate Declaration ever thought at any material time that these
instruments provided for the substitution of an organ such as the General
Assembly ofthe United Nations, for the Council of the League in Article
6 of the Mandate Declaration; secondly, to ascertain whether there is
any evidence of any understanding on the part of the authors of the
Charter of the United Nations that any of the provisions of the Charter
had brought about such a substitution and, thirdly, to ascertain whether
the Respondent in any other manner tacitly consented to such a substi-
tution!.

11. As already stated, the United Nations was not an automatic
successor in law of the League. It was, inter alia, for this reason that
towards the conclusion of the San Francisco Conference a Preparatory
Commission was established which was required, inter alia, to formulate
recommendations concerning “‘the possible transfer of certain functions,
activities and assets of the League of Nations which it may be considered
desirable for the new organization to take over on terms to be arranged”.
(Italics added.)

As is shown in the next succeeding paragraphs, an examination of the
discussions and recommendations of this Preparatory Commission
reveals that its members (each founder Member of the United Nations
was represented thereon) were not under the impression that the Covenant
of the League, or the Mandate Declarations, or the Charter of the United
Nations, or any other instrument, had the effect of transferring the
functions of the Council of the League relative to mandates to any of
the organs of the United Nations. The examination further reveals that
Respondent did not, by conduct or otherwise, agree to such a sub-
stitution.

12. In the interim arrangements by which the Preparatory Commission
was set up provision was made for an executive committee which would
exercise the powers and functions of the Commission when the Com-
mission was not in session. The Executive Committee, for the purpose
of its functions, set up ten sub-committees. The terms of reference of
Committee 4 of the Executive Committee included the following:

“It should study the questions arising if the mandates system
were to be wound up and examine the feasibility of providing for
such interim arrangements as may be possible, pending the
establishment of the Trusteeship Council 2.”

Committee 4, after lengthy deliberation, recommended to the Executive

1 This enquiry will encompass both the question whether Respondent consented
to a new obligation of accountability in the place of the obligation provided for
in Article 6 of the Mandate and the question whether, assuming, for purposes of
argument, that Applicants are correct in their contention regarding “international
accountability” (as to which see para. 8, supra), Respondent consented to a sub-
stitution of a new supervisory organ in order to render the original obligation
operable.

2 Doc. PC/EX/113/Rev. 1, 12 Nov. 1945, p. 113.

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Committee, and the latter body in turn recommended to the Preparatory
Commission, that there should be established a temporary trusteeship
committee to exercise certain functions in connection with the conclusion
of trusteeship agreements and the administration of trust territories.
The recommendation contemplated that, until such time as the Trustee-
ship Council could come into being, the temporary trusteeship committee
would undertake the functions of the said Council regarding the super-
vision of territories submitted to the trusteeship system !. In its report
the Executive Committee made no provision for the supervision of
mandates not brought under trusteeship. The only function proposed
for the temporary trusteeship committee relative to mandates was to—

“advise the General Assembly on any matters that might arise with
regard to the transfer to the United Nations of any functions and
responsibilities hitherto exercised under the mandate system”.

According to a further recommendation of the Executive Committee the
tenure of the temporary trusteeship committee would cease when the
Trusteeship Council could itself begin to function.

When the recommendations of the Executive Committee were discussed
in the Preparatory Commission certain States took up the attitude that
the establishment of the proposed temporary trusteeship committee
would be unconstitutional. Various counter-proposals were made,
including proposals for the appointment of an ad hoc committee of the
General Assembly instead of a temporary trusteeship committee.

After lengthy discussions it was decided that no recommendation should
be made for the creation of any temporary organ. The Preparatory
Commission merely recommended that the General Assembly of the
United Nations should call on the States administering mandated
territories to undertake practical steps, in concert with the other States
directly concerned, for the implementation of Article 79 of the Charter.
This proposal was accepted by the General Assembly and was embodied
in its resolution XI of 9 February 1946.

13. What is of importance in the present enquiry, is that throughout
the discussions in the Preparatory. Commission no State at any time
suggested that the Mandate Declaration or the Charter made provision
for the substitution of any organ of the United Nations, or any other
organ, as the supervisory body in respect of mandates in the place of
the Council of the League, or that Respondent or any other mandatory
had in any other manner consented to such a substitution. That was so
despite the facts that—

(a) Respondent had earlier in the same year made the statement men-
tioned in paragraph 9 (d), supra, regarding possible termination
of the Mandate and possible incorporation of South West Africa
as part of the Union of South Africa, which intimation, as stated
above, was made for the very reason that “South Africa may not

1 Doc. PC/EX/113/Rev. 1, 12 Nov. 1945, p. 58.
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afterwards be held to have acquiesced in the continuance of the
Mandate or the inclusion of the territory in any form of trusteeship
under the new international organization” !, and

(b) that, as I will show hereinafter, attention was drawn to the fact that,
in the absence of any specific arrangement to that end, there would,
after the dissolution of the League, be no powers of supervision in
respect of mandated territories not submitted to trusteeship.

It is significant that, with one exception to be dealt with hereinafter,
not one of the mandatories even contemplated thatthe proposed temporary
trusteeship committee, or any other organ of the United Nations, should
have supervisory functions in respect of mandates not converted to
trusteeship.

It is clear that the Executive Committee did not intend the temporary
trusteeship committee to have such functions. The intention was that
the said committee would merely. ‘‘advise the General Assembly on any
matters that might arise with regard to the transfer to the United Nations
of any functions and responsibilities hitherto exercised under the man-
dates system’’.

14. Atthe time when the recommendations of the Executive Committee
were under discussion in the Preparatory Commission, the United States
of America filed a written proposal for amendment of the proposed
functions of the temporary trusteeship committee.

This document (PC/TC/11) drew attention to the fact that the report
of the Executive Committee made no provision for any organ of the
United Nations to carry out the functions of the Permanent Mandates
Commission, and suggested that—

“In order to provide a continuity between the mandate system
and the trusteeship system, to permit the mandatory powers to
discharge their obligations, and to further the transfer of mandated
territories to trusteeship, the temporary trusteeship committee (or
such a committee as is established to perform its functions) and later,
the Trusteeship Council should be specifically empowered to receive
the reports which the mandatory powers are now obligated to
make to the Permanent Mandates Commission.” (Italics added.)

It was accordingly recommended that the powers of the temporary
trusteeship committee (or such committee as was established to perform
its functions) should be enlarged so that such committee could—

‘,.. undertake, following the dissolution of the League of Nations
and the Permanent Mandates Commission, to receive and examine
reports submitted by mandatory powers with respect to such

Statement by Respondent’s representative at the San Francisco Conference
on 11 May 1945.

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territories under mandate as have not been placed under the trus-
teeship system by means of trusteeship agreements, and until such
time as the Trusteeship Council is established, whereupon the
Council will perform a similar function.”

The United States of America, therefore, realized that unless specific
provision was made to vest an organ or organs of the United Nations
with powers of supervision over mandates there would, as from the
dissolution of the League, be no supervision in respect of mandated
territories not submitted to trusteeship: and it sought to provide for
such supervision by recommending that until such time as the Trusteeship
Council could start to function a temporary body should “be specifically
empowered” to exercise supervisory powers over mandates not converted
to trusteeship, and that the Trusteeship Council itself should “be specifi-
cally empowered” to perform a similar function once it came to be
established.

It is significant that, although this document was duly filed on record
and placed on the agenda of the Preparatory Commission, the matter
was never raised by the United States in debate, and no reference was at
any time made to it in any of the discussions.

It seems to me only reasonable to infer that the. United States must,
after the filing of the said document, have come to realize that the re-
spective mandatories were not prepared to accept supervision by the
United Nations of the administration of their mandated territories,
save and except for the case where a mandatory specifically agreed to |
place its mandated territory under the trusteeship system of the United
Nations.

In this regard it is interesting to note what attitude was adopted by
the different mandatories.

(a) The United Kingdom, although supporting the proposal of the
Executive Committee for the establishment of a temporary trustee-
ship committee !—a proposal which did not contemplate that the
said committee would have any supervisory functions in respect of
mandates not converted to trusteeship—also expressed itself in
favour of the alternative proposal for the establishment of an
ad hoc committee, but suggested that the only functions which such
an ad hoc committee should have relative to mandates should be—

“,.. to advise the General Assembly on any matters that
might arise with regard to the transfer to the United Nations
of any functions and responsibilities hitherto exercised under
the mandates system ?”.

The United Kingdom therefore intended the same limited role for
the proposed ad hoc committee relative to mandates as did the Execu-
tive Committee in its proposal for a temporary trusteeship committee.

1 PC/TC/2, p. 4 and PC/TC/4, p. 7.
2 PC/TC/25.

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(b) Australia supported the recommendation of the Executive Com-
mittee for the establishment of a temporary trusteeship committee
without making any suggestion that the Executive Committee should
have provided for wider powers for the proposed temporary trustee-
ship committee so as to enable it also to supervise mandates not
converted to trusteeship {.

(c) Belgium expressed misgivings with regard to the establishment
of a temporary body and made proposals which intended to avoid
the establishment of any temporary or provisional body ?.

(d) New Zealand supported the proposal made by Yugoslavia, which
included the appointment of an ad hoc body, subject, inter alia,
to the amendments suggested by the United Kingdom (as to which
see paragraph (a) above) but “hesitated to agree that a temporary
committee of any kind was necessary *”.

(e) France recommended the establishment of an ad hoc committee
which was intended to have no mission other than that of helping
to bring about as quickly as possible the establishment of the
Trusteeship Council. This proposed body would have had no
supervisory functions in respect of trust territories and would
have had no function relative to mandates other than—

,,. to advise the Assembly on any matters arising out of
the transfer to the United Nations of those functions and
responsibilities which originated either in the mandates system,
or in other international agreements or instruments *’”.

(f) South Africa, through its representative, Mr. Nicholls, took up
the attitude that if there was doubt as to whether the establish-
ment of the proposed temporary trusteeship committee was con-
stitutional or not legal judgment should be sought. Mr. Nicholls
stated further that—

‘“,.. on the question of expediency, it seemed reasonable to
create an interim body as the Mandates Commission was now
in abeyance and countries holding mandates should have a
body to which to report >”.

It has been suggested that in making this statement Mr. Nicholls
acknowledged that there was an obligation on the mandatory powers to
subject their administration of the mandated territories to the super-
vision of the United Nations. In the first place, Mr. Nicholls did not
say that the mandatories would be obliged to report to an interim body.
He merely suggested that there should be a body to which they could
report. In the second place, his statement must be read in proper context

1 PC/TC/2, pp. 2-3 and 5.

2 PC/TC/24 and PC/TC/32, p. 25.
3 PC/TC/32, p. 25.

+ PC/TC/33.

5 PC/TC/2, p. 4.

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and against the surrounding circumstances, of which the following are
of major importance.

(i) The statement made by the South African representative earlier
in that very year at the San Francisco Conference when he warned
that South Africa should not “afterwards be held to have acquiesced
in the continuation of the Mandate or the inclusion of the terri-
tory in any form of trusteeship under the new international organ-
ization’. .

(ii) The statement made by Mr. Nicholls himself shortly thereafter
in the Fourth Committee of the Preparatory Commission shortly
after his first-mentioned statement, when he said that he—

“,.. reserved the position of his delegation until the meeting
of the General Assembly because his country found itself
in an unusual position. The Mandated Territory of South
West Africa was already a self-governing country, and last
year its legislature had passed a resolution asking for ad-
mission into the Union. His Government had replied that
acceptance of this proposal was impossible owing to their
obligations under the Mandate. The position remained open
and his Delegation could not record its vote on the present
occasion if by so doing it would imply that South West Africa
was not free to determine its own destiny. His Government

would, however, do everything in its power to implement the
Charter.”

(iii) A further statement made by Mr. Nicholls only a few days later
in a Plenary Meeting of the Preparatory Commission when he
again stated a reservation and said that:

“South Africa considered that it had fully discharged the
obligations laid upon it by the Allies, under the Covenant
of the League of Nations, on the advancement towards self-
government of the territories under Mandate.”

Having regard to these three statements—one made a few months
before Mr. Nicholls addressed the Fourth Committee of the Preparatory
Commission on 29 November 1945, and the two later statements made
by Mr. Nicholls himself shortly thereafter—it cannot be contended
that, in saying that “countries holding mandates should have a body to
which to report”, Mr. Nicholls intended his remarks to apply to
territories such as South West Africa in respect of which the mandatory
had clearly intimated that it was not prepared to have the territory
included in any form of trusteeship under the United Nations. It would
rather seem that Mr. Nicholls intended his remarks to apply to those
territories in respect of which the mandatories were willing to enter
into trusteeship agreements but in respect of which there would be no
supervisory organ until the Trusteeship Council came into being.

In any event, regard being had to the attitudes adopted by the man-

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datories in the Preparatory Commission, including Respondent, as
well as the views expressed by other States at the time, there is no
justification whatever for the suggestion that there was general agree-
ment that the mandated territories should be under international
supervision and that the mandatory powers wanted that supervision to
be carried out by an interim or temporary body prior to the establish-
ment of the Trusteeship Council’. The events in the Preparatory
Commission show the very opposite, both as regards the attitudes of
the mandatory powers (as set out above) and as regards the general
agreement between the States concerned. It was realized that unless
some specific arrangement was made to vest the United Nations with
supervisory powers over mandates not converted to trusteeship, there
would be no supervision of such mandates after the dissolution of the
League. Nevertheless, although it was at one stage suggested by the
United States of America that such arrangements should be made, the
suggestion was not raised for discussion, and nothing at all was done
to “confer supervisory powers with respect to mandates not converted
to trusteeship on any organs of the United Nations, or any other body.
The general understanding must therefore have been that there would
be no supervision of mandates not converted to trusteeship.

15. When the Preparatory Commission’s report was considered at the
First Part of the First Session of the General Assembly in the period
January-February 1946, the mandatories each stated their respective
intentions with regard to the future of the territories under mandate.

Australia, New Zealand and Belgium stated intentions to negotiate
trusteeship agreements in respect of the mandated territories admin-
istered by them.

The United Kingdom intimated that in respect of Transjordan it
intended to take steps for establishing the said territory as a sovereign
independent State. With regard to Palestine it was considered necessary
to await the report of the Anglo-American Committee of Enquiry
before putting forward any proposals. And in respect of Tanganyika,
the Cameroons and Togoland it was stated that the United Kingdom
would proceed forthwith to enter into negotiations for placing these
territories under the trusteeship system; but it was made clear that its
willingness to place these territories under the trusteeship system de-
pended upon it being able to negotiate satisfactory terms.

France intimated its preparedness to study the terms of agreements
by which the trusteeship régime could be “defined” in respect of Togo-
land and the Cameroons. In respect of the Mandated Territory of
South West Africa, Respondent’s representative stated its attitude in
the following terms:

“Under these circumstances, the Union Government considers
that it is incumbent upon it, as indeed upon all other mandatory
powers, to consult the people of the mandated territory regarding

1 C.R. 65/27, p. 46.
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the form which their own future government should take, since
they are the people chiefly concerned. Arrangements are now in
train for such consultations to take place and, until they have
been concluded, the South African Government must reserve its
position concerning the future of the mandate, together with its right
of full liberty of action, as provided for in paragraph 1 of Article 80
of the Charter.

From what I have said I hope it will be clear that South West
Africa occupies a special position in relation to the Union which
differentiates that territory from any other under a C Mandate.
This special position should be given full consideration in deter-
mining the future status of the territory. South Africa is, never-
theless, properly conscious of her obligations under the Charter.
I can give every assurance that any decision taken in regard to
the future of the mandate will be characterized by a full sense of
our responsibility, as a signatory of the Charter, to implement its
provisions, in consultation with and with the approval of the local
inhabitants, in the manner best suited to the promotion of their
material and moral well-being.” (Italics added.)

And a few days later:

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

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

None of the statements made by the mandatories on this occasion
can be interpreted as evidencing an understanding that, in the case
of mandated territories in respect of which no trusteeship agreements
were concluded, the United Nations, or any of its organs, would, after

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the dissolution of the League, have powers of supervision, or that
the mandatories were prepared to submit to such supervision. Nor can
it fairly be said that the Respondent’s statement that it would submit
the question of incorporation of South West Africa to the judgment of
the General Assembly constituted a request to the United Nations to
assume the supervisory functions of the Council of the League. In my
opinion, it was obviously no more than an intimation of Respondent’s
desire of obtaining the approval of an important political act by the
newly formed and important international organization. It must have
been apparent to all concerned that, whatever the legal position might
be, unilateral incorporation of South West Africa by the Respondent
without consulting the United Nations could have led to serious criticism
and harmful political results. This intimation was motivated solely
by political wisdom and was not intended to have, nor was it understood
to have, any bearing on the Respondent’s obligations under Article 6
of the Mandate. This will become more apparent when subsequent
events are considered.

16. Of major significance in the present enquiry are the texts of
certain resolutions adopted by the General Assembly of the United
Nations early in 1946, either with specific reference to mandates, or
applicable, inter alia, to mandates.

In its resolution XI of 9 February 1946, the General Assembly ex-
pressed regret that the Trusteeship Council could not be brought into
being at that session, and proceeded to state that it—

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

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

Save for minor textual changes this resolution followed the precise
wording of the draft resolution proposed by the Preparatory Commis-
sion +, and it is significant that, like the draft, it makes no mention
whatsoever regarding the future of mandated territories in respect of
which no trusteeship agreements would come about.

1 Vide para. 12, supra.
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General Assembly resolution XIV of 12 February 1946 dealt with
the “Transfer of certain functions, activities and assets of the League
of Nations”. In its operative part this resolution, inter alia, contained
the following declaration:

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

Sections A and B dealt with functions pertaining to the Secretariat and
Functions and Powers of a Technical and Non-Political Nature.
Section C read as follows:

“Functions and Powers under Treaties, International Conventions,
Agreements and other Instruments having a Political Character.

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

Inasmuch as the mandate declarations were instruments having a
political character, this section of the resolution was applicable to
mandates. And it is the only resolution of the General Assembly in
which provision was made for the possible transfer to the United Nations
or its organs of the League’s functions relative to mandates.

The part of the resolution in question is of considerable significance
because it negatives the possibility of an implied agreement existing
at that time in terms whereof the Respondent’s obligations under the
Mandate to report and account to the Council of the League would be
transformed into an obligation to report and account to the United
Nations. Judge Read aptly remarked, in International Status of South
West Africa, I.C.J. Reports 1950, page 172: “The very existence of this
express provision, however makes it impossible to justify succession
based upon implication.”

Insofar as this resolution was intended to provide a method for
transferring to the United Nations supervisory powers in respect of
mandates, such a transfer could, in terms of the resolution itself,
effectively come about only by way of a specific request on the part
of a mandatory and a decision by the United Nations to assume the
function in question; and such an assumption had to be “subject to
the provisions of, inter alia, the Charter’.

Any assumption by the United Nations of supervisory powers in
respect of mandates would have brought about a new or amended treaty
obligation on the part of the Mandatory or mandatories concerned.

It follows that any such assumption by the United Nations of super-

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visory functions in respect of a particular mandate pursuant to the
request of the mandatory concerned had, in order to be valid and
effective, to be registered in terms of Article 102 of the Charter. Failing
such registration the arrangement could in terms of Article 103 not be
invoked before any organ of the United Nations.

It is sufficient to say that Respondent never requested the United
Nations to assume the exercise of the functions or powers entrusted
to the League by Article 6 of the Mandate for South West Africa, and
that those functions were neither expressly transferred to the United
Nations nor assumed by that organization at any material time.

17. I deal next with the events at the final session of the League
of Nations. It has been argued that the declarations made by the several
mandatories at the final session of the League constituted undertakings
or “pledges” to submit their administration of the mandated territories
to the supervision of the United Nations until the conclusion of other
agreed arrangements, and that the final resolution of the League of
18 April 1946 constituted an international agreement or treaty recording
such undertakings or “pledges” +.

In this regard strong reliance has been placed on the 1950 Advisory
Opinion of this Court and on the Judgment of five judges of this Court
in the 1962 Judgment on the Preliminary Objections. It accordingly
seems necessary to make a detailed examination of the events at the
final session of the League, of the League resolution of 18 April 1946
and of all other relevant facts, as well as a careful analysis of the said
Opinion and Judgment. I shall deal first with the events at the final
League session.

18. In pursuance of informal discussions between members of the
League most directly concerned with mandates, the representatives

1 Applicants’ argument, which was based on what they termed “Preparatory
Commission procedures and the system of pledges’’, can be briefly stated as follows:

(a) there was general agreement that the mandated territories should be under
international supervision;

(b) the mandatory powers, including Respondent, wanted that supervision to
be carried out by an interim or temporary body prior to the establishment of
the Trusteeship Council, i.e., the proposed Temporary Trusteeship Committee;

(c) other governments feared that this procedure would lead to delay in the
establishment of the trusteeship system and pressed for pledges by the manda-
tory powers to place their territories under the trusteeship system;

(d) by way of a compromise it was agreed that pledges would be made, but not
pledges to place the mandated territories under the trusteeship system, the
pledges would be to carry out all the obligations of the mandate, including
the obligation to submit to international supervision;

(e) the said pledges were duly made at the final session of the League.

The part of the argument set forth in paras. (a) to (d), supra, has been dealt with
in paras, 12-16, above.

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of mandatory powers, in addressing the final plenary meeting of the
Assembly of the League, made statements indicating the intentions
of their governments with regard to their respective mandated. territories.
On 9 April 1946, the representatives of the United Kingdom and the
Respondent made their statements.

The representative of the United Kingdom, after having mentioned
that Iraq and Transjordan had already become independent sovereign
States, and after repeating his Government’s intention of placing
Tanganyika, Togoland and the Cameroons under trusteeship, subject
to the negotiation of satisfactory terms, stated:

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

Respondent’s representative made the following statement:

“It is the intention of the Union Government, at the forth-
coming session of the United Nations General Assembly in New
York, to formulate its case for according South West Africa a status
under which it would be internationally recognized as an integral
part of the Union. As the Assembly will know, it is already
administered under the terms of the mandate as an integral part
of the Union. In the meantime the Union will continue to admin-
ister the territory scrupulously in accordance with the obligations of the
mandate, for the advancement and promotion of the interest of the
inhabitants, as she has done during the past six years when meetings
of the Mandates Commission could not be held.

The disappearance of those organs of the League concerned
with the supervision of mandates, primarily the Mandates Com-
mission and the League Council, will necessarily preclude complete
compliance with the letter of the mandate. The Union Government
will nevertheless regard the dissolution of the League as in no way
diminishing its obligations under the mandate, which it will continue
to discharge with the full and proper appreciation of its responsibilities
until such time as other arrangements are agreed upon concerning
the future status of the territory.”

19. After the above statements had been made the representative of
China, Dr. Liang, raised the question of the future of mandates in
the First Committee on the afternoon of 9 April 1946. At that time the
Committee was considering a draft resolution concerning assumption

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by the United Nations of League functions and powers arising out of
agreements of a technical and non-political character. Dr. Liang wished
to propose for discussion the following draft resolution which he read
out:

“The Assembly,

Considering that the Trusteeship Council has not yet been
constituted and that all mandated territories under the League
have not been transferred into territories under trusteeship;

Considering that the League’s function of supervising mandated
territories should be transferred to the United Nations, in order
to avoid a period of interregnum in the supervision of the mandatory
regime in these territories.

Recommends that the mandatory powers as well as those ad-
ministering ex-enemy mandated territories shall continue to submit
annual reports to the United Nations and to submit to inspection by
the same until the Trusteeship Council shall have been constituted.”
(Italics added.)

I pause here to remark that if it had been thought that the provisions
of the Covenant of the League and the Mandate Declarations, or the
Charter of the United Nations, or any provision in any other instru-
ment, or any statements made by the Respondent had the effect of
amending the mandatory’s obligation to report and account by substi-
tuting in the Mandate Declaration an organ of the United Nations for the
Council of the League, Dr. Liang’s proposed resolution would have been
unnecessary. If it was thought that provision had already been made
(in the Covenant of the League, in the Mandate Declarations, or in the
Charter, or elsewhere) for the transfer of the League’s supervisory
functions to the United Nations, there would have been no need for
a resolution “that the League’s function of supervising mandated terri-
tories should be transferred to the United Nations”. Likewise, if it was
thought that provision had already been made (in the Covenant of the
League, in the Mandates, in the Charter, or elsewhere) that mandatories
should render the annual reports previously submitted to the League
Council to the United Nations, there would have been no point in a
recommendation that “the mandatory powers ... shall continue to submit
annual reports to the United Nations”.

The truth is that not a single member of the League nor a single
Member of the United Nations at that stage thought that they were
parties to any agreement which compelled the Respondent, or any
other mandatory power to report and account to the General Assembly
of the United Nations as the supervisory body in respect of mandates
not converted to trusteeship. If there had been the requisite tacit meeting
of minds to bring about an implied agreement to the said effect, one
would have expected that the States which are now alleged to have
been parties to such an agreement would have been aware thereof and

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would have made some reference thereto. It cannot be denied that at
the final session of the League it was common cause among all concerned
that no such agreement existed (whether in the provisions of the Cove-
nant, the mandates, the Charter, or elsewhere) and it does not seem
possible that a court of law could today, in the face of these incontro-
vertible facts, find to the contrary.

20. When Dr. Liang had read his draft resolution the chairman ruled
that the proposal was not relevant to the matter then under discussion.
namely the assumption by the United Nations of League functions and
powers of a technical and non-political character. The proposal was,
therefore, not debated.

Following this incident informal discussions were renewed, the
Chinese delegation participating therein. In the meantime further
statements were made by the representatives of France, New Zealand,
Belgium and Australia.

These statements were to the same effect as those made by the re-
presentatives of the United Kingdom and South Africa from which
extracts have been quoted by me. Not one of them contained even a
suggestion that the mandatories concerned would after the dissolution
of the League report and account to, or otherwise submit to the super-
vision of, the United Nations or any of its organs with regard to the
administration of their respective mandated territories. In effect each
of the said statements merely intimated the intention of the mandatory
concerned to continue with its administration of its mandated territory
as before. And as I shall show later, the Australian statement intimated
a clear contemplation that the mandate provisions for reporting and
accounting would lapse.

21. The outcome of the informal discussions which had meanwhile
taken place was that Dr. Liang on 12 April 1946 introduced a new draft
resolution, which had been settled in consultation and agreement by
all countries interested in mandates. In proposing the new draft resolution
Dr. Liang-

€

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

It was gratifying to the Chinese delegation, as representing a

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country which had always stood for the principle of trusteeship,
that ali the mandatory powers had announced their intention to
administer the territories under their control in accordance with
their obligations under the mandates system until other arrangements
were agreed upon. It was to be hoped that the future arrangements
to be made with regard to these territories would apply, in full the
principle of trusteeship underlying the mandates system.” (Italics
added.)

The new Chinese draft contained what eventually became the League
Assembly’s resolution concerning mandates in the following form:

“The Assembly:

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

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

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

3. Recognizes that, on the termination of the League’s existence,
its functions with respect to the mandated territories will come
to an end, but notes that Chapters XI, XII and XIII of the Charter
of the United Nations embody principles corresponding to those
declared in Article 22 of the Covenant of the League;

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

This resolution was adopted unanimously, the Egyptian delegate
abstaining from the vote by reason of a reservation of his Government
in regard to the Mandate for Palestine.

22. On the same day (18 April 1946) the Assembly of the League also
adopted other resolutions, including one in respect of certain parts of
the United Nations General Assembly resolution 14 of 12 February
(erroneously described as dated 16 February), but significantly adopted

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no resolution relative to section C thereof concerning the transfer to the
United Nations of powers under treaties, international conventions,
agreements and other instruments having a political character +.

It appears to be an inescapable conclusion that the League Assembly
took note of section C of the said resolution of the United Nations
General Assembly, but did not consider it necessary for the League to
pass any resolution in respect thereof.

I have already mentioned that, as applied to mandates, this section
meant that the United Nations would not assume any powers entrusted
to the League by a particular mandate declaration unless it received
a request to do so from the mandatory concerned.

Had the Members of the United Nations (all but seven of the 36
members of the League who attended its April session in 1946 were
founder Members of the United Nations) thought that the League
resolution of 18 April 1946 concerning mandates in any way made
provision for the transfer to the United Nations of supervisory powers
in respect of mandates, without any formal request in that regard being
‘directed to the United Nations by any of the mandatories, they would
have realized that the League resolution ran counter to the resolution of
the United Nations General Assembly of 12 February. And it is un-
believable that this matter would then not have been raised and debated
in the League Assembly and subsequently in the General Assembly of
the United Nations. The General Assembly would then either have
adhered to their resolution of 12 February, or would have altered it to
bring it into conformity with the League resolution. Nothing of the kind
ever happened, and one is therefore compelled to conclude that the
League resolution was not considered to be inconsistent with the reso-
lution of the General Assembly of the United Nations.

Had the first draft proposal by China been adopted by the League the
position would have been different. This draft proposal was directly
opposed to the aforesaid United Nations resolution concerning the trans-
fer of political functions. Whereas the latter provided, inter alia, for the
ad hoc assumption by the United Nations, at the request of the party
concerned, of the functions entrusted to the League under a mandate
declaration, the first Chinese draft resolution envisaged a general transfer
of these functions without any request by the parties concerned.

23. A League resolution required unanimous support, and it is obvious
that Dr. Liang’s original draft resolution would not have been carried.
Respondent’s representative could not, and would not, have supported
this proposal, as Respondent had repeatedly stated that the Mandate for

1 Vide para. 16, supra.
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South West Africa should be terminated, and that Respondent was
averse to the inclusion of the territory in any form of trusteeship under
the United Nations. Nor would the proposal have had the support of
the representative for Egypt. But the best proof of all that it would not
have succeeded is the fact that it was not proceeded with, and that in its
place came a watered-down resolution omitting those provisions which
related to the transfer to the United Nations of the functions of the League
with regard to mandates, and to the suggested obligation of the mandatories
to report and account to the United Nations.

If the purpose of the final League resolution was to record, or to
incorporate, an agreement in terms of which the mandatories were
to submit annual reports to the United Nations, and to submit to the
supervision of the United Nations, the provisions of the original Chinese
draft would have been retained as expressing the intention of the parties.
The fact that the express provisions in the first Chinese draft were deleted,
can, in the circumstances, lead to no other conclusion than that no agree-
ment embodying such provisions was arrived at. Any suggestion that the
parties deliberately refrained from retaining the express provisions of the
original Chinese draft because they preferred a tacit agreement to an express
one in regard to this important matter, would be so nonsensical as not
to merit any consideration. The omission of the said provisions in the
later draft and in the resolution constitutes conclusive proof that that
meeting of minds which was necessary to bring about an agreement
concerning the transfer to the United Nations of supervisory powers in
respect of mandates was lacking.

In this regard I respectfully wish to associate myself with the following
remarks by Sir Percy Spender and Sir Gerald Fitzmaurice in their 1962
joint opinion:

“The contrast between the original Chinese draft and the one
eventually adopted constitutes an additional reason why we find it
impossible to accept the view ... that the functions of the League
Council in respect of mandates had passed to the United Nations;
for this was the very thing which the original Chinese draft proposed
but which was not adopted.”

24. A finding that the League resolution of 18 April 1946 relating to
mandates constituted treaties defining the future obligations of the
mandatories cannot be justified. It was not more than it purported to be:
a resolution of a moribund League. The only “agreement” that existed
was consensus as to the terms of the resolution. Two of its paragraphs
(3 and 4) are relied upon for the contention that it constituted an agree-
ment defining the mandatories’ obligations with respect to their mandates.
In paragraph 3 the Assembly “recognizes” that on the dissolution of the
League its functions with respect to mandated territories “will come
to an end”. This was a legal fact which really required no recognition.
The Assembly further ‘“‘notes’’ the existence in the Charter of the United

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Nations of “principles” corresponding “to those of Article 22 of the
League Covenant’. This “noting” cannot alter obligations, and what
strikes one forcibly is that nothing is said about transfer to the United
Nations of the League’s functions with respect to mandates..In paragraph 4
the Assembly “takes note” of the expressed intentions of members of
the League administering mandated territories—‘‘to continue to adminis-
ter them for the well-being and development of the peoples concerned in
accordance with the obligations contained in the respective mandates”
until other arrangements have been agreed upon between the United
Nations and the respective mandatory powers. Here again I fail to see
on what legal principles one can base a conclusion that a recording
in the League Assembly’s resolution that it “takes note” of “expressed
intentions” constitutes a treaty which gives the “expressed intentions”
the force and effect of legal obligations.

25. The Board of Liquidation of the League (which consisted of
representatives of nine ex-members of the League) were required by the
League on its dissolution “‘to have regard in the performance of its task
to all the relevant decisions of the League Assembly taken at its last
session”. The Board evidently did not regard the aforesaid League
resolution of 18 April 1946 as embodying international agreements
transferring the supervisory functions of the League to the United
Nations. In fact, the Board quoted the said resolution in its final report,
and then continued to state:

“The mandates system inaugurated by the League has thus
been brought to a close but the Board is glad to be able to record
that the experience gained by the Secretariat in this matter has not
been lost, the United Nations having taken over with the small
remaining staff the mandates section archives which should afford
valuable guidance to those concerned with the administration of
the trusteeship system set up by the Charter of that organization.”

This report was sent to every ex-member of the League who was present
at its final meeting, and there is no record that any State ever questioned
the correctness of this statement in the report.of the Board. If any party
to the League resolution in question had thought that it constituted a
binding international agreement that in respect of mandated territories
not converted to trusteeship the mandates system would continue to
operate, with the United Nations as the supervisory authority, then
their silence in these circumstances is inexplicable.

26. I have already drawn attention to the fact that, in terms of reso-
lution 14 of the General Assembly of the United Nations, the assumption
by the United Nations of any functions of the League was to be subject,
inter alia, to the provisions of the Charter, and that any agreement in
terms of which the United Nations assumed the supervisory functions

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of the League relative to mandates would accordingly have had to be
registered in terms of Article 102 of the Charter.

In this regard one should bear in mind that a unilateral declaration
by a State which has been accepted by another constitutes an international
agreement in terms of Article 102 of the Charter. If the declarations of
the mandatories together with the resolution of the League Assembly
of 18 April 1946 were considered to constitute international agreements
—which is in effect what Applicants contend—it is inconceivable that
no steps should have been taken to effect the necessary registration. This
is the more significant when one has regard to the carefully worded
agreements relative to the transfer to the United Nations of assets and
certain other functions of the League entered into between the United
Nations and the aforesaid Board of Liquidation pursuant to resolutions
of the Assembly of the League of 18 April 1946, which agreements
were duly registered and published in the United Nations Treaties Series.
In these circumstances, there can be no doubt that if it had been con-
sidered that the declarations of the mandatories together with the
League resolution concerning mandates constituted international
agreements in terms whereof the mandatories’ obligations to report
and account to the Council of the League were transformed into obli-
gations to report and account to an organ of the United Nations, proper
steps would have been taken to have the necessary registrations effected
in accordance with the provisions of Article 102.

It has been suggested that no registration was effected because the
evidence of the agreements was contained in so many statements that
registration would not have been practicable. It is, however, inconceiv-
able that no attempt would have been made in such a case to reduce
the agreements to a registerable form. I know of no reason why the
States concerned should deliberately have refrained from taking such
steps, when they knew that in terms of Article 103 such agreements,
if not registered, could not be invoked before any organs of the United
Nations. It has been suggested that Applicants’ reliance on this sug-
gested ‘‘treaty” does not amount to “invoking” it before this Court
(which, of course, is an organ of the United Nations). I do not agree
with this contention; but it is, in any event, no answer to the point
that if the States concerned thought that they were entering into a treaty
they would not have done so in such an ineffective and obscure manner.

Hall, in Mandates, Dependencies and Trusteeship, page 273, com-
mented as follows on this League resolution:

“The significance of this resolution of the League Assembly
becomes clearer when it is realized that for many months the most
elaborate discussions had been taking place between the govern-
ments as to the exact procedure to be adopted in making the transi-
tion between the League and the United Nations. It was the function
of the Preparatory Commission and committees succeeding it to

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make recommendations on the transfer of functions, activities,
and assets of the League. All the assets of the League had been
carefully tabulated. All its rights and obligations that could be
bequeathed to the United Nations and which the latter desired
to take over were provided for in agreements that were made.
But in the case of mandates, the League died without a testa-

ment.”
See also South West Africa cases, [.C.J. Reports 1962, pages 651-652.

27. It has also been suggested that the reason for not drafting a
conventional treaty was that it was thought that all mandates would
be placed under the international trusteeship system within a relatively
short time. If this statement were correct, it would equally be a reason
for not entering into any agreement at all as regards reporting to the
United Nations. But the statement is not correct. There is no evidence
in support thereof. On the contrary, the mandatories were not obliged
to enter into trusteeship agreements, and the members of the League
knew that a trusteeship agreement could only be concluded if the man-
datory power concerned and the United Nations could agree on the
terms thereof. The representative of the United Kingdom, for example,
had stated clearly that the willingness of the United Kingdom to place
its African mandated territories under the trusteeship system depended
upon its being able to negotiate satisfactory terms. And with regard
to South West Africa the Members of the League knew that Respondent
was claiming incorporation, and that Respondent had no intention of
placing South West Africa under the trusteeship system.

28. From what has been stated in the preceding paragraphs it follows
that there is no justification for the suggestion that the League resolu-
tion in question constitutes a treaty in terms whereof the supervisory
functions of the Council of the League in regard to mandates were
transferred to the United Nations and the mandatories’ obligations
to report and account to the Council of the League were transformed
into obligations to report and account to the United Nations. But even
if the resolution can at all be regarded as being in the nature of a treaty,
it cannot have the effects aforestated. It cannot embody more than the
expressed intentions of the parties. At most it would (on the assumption
that it is a treaty) constitute an agreement that the mandatories would
continue to administer the territories for the well-being and develop-
ment of the peoples concerned in accordance with the obligations
contained in the respective mandates. The aforesaid resolution does
not refer to any undertaking to continue to report and account. As I
have indicated this omission was not accidental but deliberate.

Not a single mandatory stated that it would continue to comply
with the provisions relating to reporting and accounting. They could
not have done so as they knew that those provisions depended for their
fulfilment on the existence of the League of Nations. Had they under-
taken to comply with those obligations after dissolution of the League

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they would have stated the respects in which they thought the provi-
sions of the mandates were being amended or superseded. The decla-.
rations of intention to continue to administer the mandated territories
were of a general nature: “in accordance with the general principles
of existing mandates” (United Kingdom), “to pursue the execution of
the mission entrusted to it by the League of Nations” (France), “in
accordance with the terms of the mandate for the promotion of the
well-being and advancement of the inhabitants’ (New Zealand), “in
accordance with the provisions of the mandates, for the protection
and advancement of the inhabitants” (Australia). The delegate of the
Respondent, after stating its intention of applying to the United Nations
for international recognition of South West Africa as an integral part
of the Union of South Africa, proceeded to express an intention on
Respondent’s part to continue to comply with its obligations under
the mandate after the dissolution of the League. The words he used
(see paragraph 18 above) made it clear that these were the obligations
concerning administration, which did not depend on the existence of
the League for their fulfilment. The statement said in terms that the
Respondent would continue to administer the Territory scrupulously
in accordance with the obligations of the Mandate as she had done
during the six years when meetings of the Mandates Commission could
not be held. It is common cause that during those years there was no
reporting or accounting to the Council of the League. The statement
made express mention of the fact that the disappearance of those organs
of the League concerned with the supervision of mandates, primarily
the Mandates Commission and the League Council, would necessarily
preclude complete compliance with the letter of the mandate. It did not
say, and no fair interpretation can give it the effect of saying, that the
Respondent was agreeable that the supervisory functions of the Council
of the League and the Mandates Commission be transferred to the
organs of the United Nations. As I shall show later, the subsequent
conduct of Respondent, and of all the members of the League present
at its final session, leaves no room for any doubt that they did not
consider that the Respondent’s statement and/or the League’s resolu-
tion constituted an agreement in terms whereof Respondent became
obliged to report and account to the United Nations as the supervisory
body in respect of the Mandate for South West Africa. Nor can any such
agreement be spelled out from the declarations made by the other
mandatories.

29. The Australian representative. made it clear that after the disso-
lution of the League it would be impossible to continue the mandates
system in its entirety. Had the suggested transfer of the League Council’s
functions been contemplated, the Australian representative would
simply have said that the supervisory functions of the League Council
were being transferred to the organs of the United Nations.

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The Australian representative also referred to the explicit international
obligation laid down in Chapter XI of the Charter, being the duty of
transmitting information as provided for in Article 73 (e) of the Charter,
and said that there would be no gap, no interregnum to provide for.
In this regard it is significant that the League resolution “‘notes”’ that
Chapters XI, XII and XIII of the Charter of the United Nations embody
principles corresponding to those declared in Article 22 of the Covenant
of the League. If the Members of the League thought that Chapter XI
did not apply to territories under mandate surely no reference would
have been made thereto in the resolution.

It does not matter whether Members were right or wrong in their
assumption that Chapter XI applied to the mandates. They may well
have been wrong. The important fact, however, is that they or at least
some of them thought it did.

If it was thought that the duty to report under Article 22 of the Cove-
nant and the Mandate Declaration would continue to exist after the
dissolution of the League, no reference would have been made to Chap-
ter XI of the Charter. The duty of transmitting information under
Chapter XI is a much more restricted and less onerous one than that
of reporting and accounting under the mandates. It would therefore
not have been considered to be applicable to mandates, after the disso-
lution of the League, unless the contemplation was that the duty of
reporting and accounting under the mandates had lapsed. The contem-
plation could not have been that there would be in operation two over-
lapping sacred trusts in respect of each mandated territory, both super-
vised by the United Nations, to which each mandatory had to render
two reports, one in terms of the Mandate Declaration and the other
in terms of Chapter XJ. It was obviously thought by at least some of
the delegates that Chapter XI would indeed supersede the more onerous
reporting provisions of the Covenant and the Mandate Declaration,
by reason of the lapse of such provision, until “other arrangements”
were agreed to between the United Nations and the mandatory powers
concerned. Such other arrangements could have included, inter alia, .
a trusteeship agreement, or the “‘assumption” by the United Nations,
in terms of its Assembly’s resolution XIV of 12 February 1946, of super-
vision in pursuance of a request to that end, or approval of incorporation
by the mandatory of the mandated territory {.

1 Whether Chapter XI applies to South West Africa is not one of the issues in
this case, and in any event this Court has no jurisdiction under the compromissory
clause of the Mandate to give any judgment in respect thereof. I shall accordingly
refrain from expressing my view on the question whether the said Chapter applies
or not, and shall similarly remain silent on the further question that would arise
if it applies, namely whether the United Nations organs’ disregard of its provisions
is tantamount to a breach or repudiation which entitles members affected thereby
to refuse to comply with the reporting provisions of the Chapter.

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30. The United Kingdom’s intention was expressed as being “‘to
continue to administer these territories in accordance with the general
principles of the existing mandates”. That this statement, in itself, or
as read with the League Assembly’s resolution, did not embrace, and
was not understood to embrace, an agreement substituting an obligation
to report and account to the United Nations for the obligation to report
and account to the Council of the League, appears, apart from the
other considerations already mentioned, from the report and delibera-
tions of the United Nations Special Committee on Palestine !.

Allbuttwo of the members of this Committee were Members of the
League at the time of its dissolution, and were parties to the aforesaid
resolution of the League, and all were founder Members of the United
Nations. If the resolution in question was thought by these States to
have had the effect of obliging mandatories to report and account to
the United Nations, they would not have stated in their report con-
cerning Palestine that on the dissolution of the League there was no
international authority to which the mandatory power might “submit
reports and generally account for the exercise of its responsibilities in
accordance with the terms of the mandate”. The report states that the
mandatory’s representative had this in mind when speaking of ad-
ministration “in accordance with the general principles” of the mandate
at the final League session. The report further states in terms that “‘the
most the mandatory could now do... would be to carry out its ad-
ministration in the spirit of the mandate ...”. In a special note to the
report, the representative of India remarked, inter alia, that:

“There are no means by which the international obligations
in regard to the mandates can be discharged by the United Nations.”

These States could not possibly have thought that the supervisory
functions of the Council of the League had been transferred to the
United Nations, whether by the provisions of the Mandate and the
Covenant of the League, by the Charter of the United Nations, by
the League resolution in question, by the declarations of intention
by the mandatories, or by any other statement or instrument.

31. As will be indicated later, the aforesaid views of the above States
reflected the general views of the Members of the United Nations,
which included practically all States who were original Members of
the League as well as the States present at the dissolution of the
League. On what possible grounds could this Court now find the exist-
ence of tacit agreements, of which the States who are supposed to
have been the parties thereto were unaware when practical situations

1 The members of this Committee were Australia, Canada, Guatemala, India,
Tran, Netherlands, Peru, Sweden, Czechoslovakia, Uruguay and Yugoslavia.

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arose in which agreements would have been invoked had they existed?

The fact that the United Nations eventually assumed responsibility
for the division of Palestine is of no significance at all. It was done at
the request of, and with the approval of, Great Britain, and accordingly
has no bearing on the issue in this case, viz., whether the Respondent
has been a party to any agreement in terms whereof the United Nations
was substituted for the Council of the League in Article 6 of the Mandate
Declaration.

32. I proceed to deal next with events subsequent to the dissolution
of the League.

Pursuant to an undertaking given earlier in that year, Respondent
in November 1946 submitted to the United Nations, for its approval,
the proposal to incorporate South West Africa into the Union of South
Africa. This proposal was rejected by the United Nations. It has been
submitted that by so doing Respondent clearly recognized the United
Nations as the international body competent to supervise the administra-
tion of the Territory 1.

In my opinion there is no substance in this contention.

J have already indicated that Respondent’s intimation that it intended
making such a request to the United Nations did not mean, and was
not intended nor understood to mean, that the United Nations was
acknowledged to have supervisory powers in respect of the Mandate.
It is similarly clear—as will appear from a consideration of subsequent
events—that the request itself was neither intended, nor understood,
to have such an effect. It was no more than an attempt to obtain the ap-
proval of the United Nations to an important political act. There are
several instances where comparable. requests were made to the United
Nations, but no one ever suggested that such requests constituted im-
plied consent to the substitution of the United Nations as the super-
visory authority in respect of mandates not converted to trusteeship.
Field-Marshal Smuts, when dealing with the incorporation proposal
in the Fourth Committee of the United Nations, stated that:

“It would not be possible for the Union Government as a former
mandatory to submit a trusteeship agreement in conflict with the
clearly expressed wishes of the inhabitants. The Assembly should
recognize that the implementation of the wishes of the population
was the course prescribed by the Charter and dictated by the in-
terests of the inhabitants themselves. If, however, the Assembly
did not agree that the clear wishes of the inhabitants should be
implemented, the Union Government could take no other course
than to abide by the declaration it had made to the last Assembly
of the League of Nations to the effect that it would continue to

5 CR. 65/28, pp. 37 and 48.
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administer the Territory as heretofore as an integral part of the
Union, and to do so in the spirit of the principles laid down in
the Mandate.

In particular the Union would, in accordance with Article 73,
paragraph (e) of the Charter, transmit regularly to the Secretary-
General of the United Nations ‘for information purposes, subject
to such limitations as security and constitutional regulations might
require statistical and other information of a technical nature
relating to economic, social and educational conditions’ in South
West Africa.”

It will be noted that this statement was made only seven months after
the League resolution of 18 April 1946, and yet at that time (and for a
period of more than a year thereafter) not a single State contended that
Respondent was obliged to report to the United Nations, not under
Article 73 of the Charter, but under the provisions of the Mandate
Declaration. This was the first time after the dissolution of the League
that the Respondent had occasion to refer to its intentions with regard
to South West Africa, and if any State had been induced to believe that
the Respondent had agreed to such an amendment of the Mandate
Declaration, Respondent’s statement would surely have been challenged.
The irresistible inference is that not a single Member of the United
Nations who had been a party to the League resolution, and who was
present when Field-Marshal Smuts made this statement could have
thought that the League resolution constituted an agreement obliging
the Respondent and other mandatories to account to the United Nations
as the supervisory authority in the place of the Council of the League.
Similarly no State could have been under the impression that the request
for approval of the incorporation of South West Africa constituted an
acknowledgement that the United Nations had been vested with such
powers, by any process whatsoever.

33. During 1947 South West Africa was on several occasions the sub-
ject of discussion in the various organs of the United Nations—the
Fourth Committee, the Trusteeship Council and the General Assembly.
Respondent’s representatives repeatedly made statements which could
have left no doubt that Respondent’s attitude was that, in the absence
of a trusteeship agreement, the United Nations would have no super-
visory jurisdiction over South West Africa, and that Respondent was
under no duty to report and account to the United Nations in compliance
with the obligations assumed under the Mandate.

In a letter to the Secretary-General of the United Nations dated
23 July 1947, Respondent referred to a resolution of the House of
Assembly of the South Africa Parliament which, inter alia, recorded that
the rights and powers of the League of Nations relative to mandates had
not been transferred to the United Nations. The validity of this statement
was not questioned. The aforesaid resolution also expressed the opinion
that the Territory should be represented in the Union Parliament and

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that the South African Government should continue to render reports
‘as it had done heretofore under the Mandate”. The quoted words
require some consideration. As at that stage, no report had yet been
rendered to the United Nations by the South African Government !.
The word ‘‘heretofore” must therefore have referred to reporting in the
time of the League.

Consequently the words “‘under the Mandate” merely reflected the
facts that previous reporting to the League had occurred under the
Mandate. The resolution did not say that reporting to the United
Nations should occur under the Mandate. That would in any event
have been an impossibility, at least to the extent that the Mandate
required reporting to the Council of the League to its satisfaction.
There is also no justification for reading the resolution as urging that
the reporting should in any other sense occur “under the Mandate’,
e.g., in the sense of accounting for performance by the mandatories
of the substantive obligations prescribed in the mandates. The reasonable
reading, and the one most in accordance with the probable intent of
the House, is that the resolution merely urged an act of reporting, and
did not express any view or desire as to the form and context of the
suggested reporting. This is so particularly in view of the fact that
Field-Marshal Smuts, who as Prime Minister was leader of the majority
party in the House of Assembly, had only five months prior to the
resolution informed the Fourth Committee of the United Nations that
the reporting would consist merely of transmission, for information
purposes, of statistical and other technical information in accordance
with Article 73 (e) of the Charter. If the House had intended to go
against the Prime Minister on this point, one would have expected it
to have said so explicitly.

However, be that as it may, it should be remembered that the resolution
by itself has no legal significance: it is a recommendation to the Gov-
ernment (i.e., the Mandatory) and not an act or utterance by the
Government. The important question is therefore how the Government
understood the resolution and what it conveyed to the United Nations
on the point in question in the letter of 23 July 1947. The letter
left no room for doubt: it stated explicitly that the Union Govern-
ment had “already undertaken to submit reports on their administra-
tion for the information of the United Nations” (italics added). This was
unmistakably a reference to Field-Marshal Smuts’ above-quoted state-
ment to the Fourth Committee in November 1946, regarding trans-
mission of information in accordance with Article 73 (e). The letter

1 The date of submission of the only report was September 1947.
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did not intimate that any different kind of reports would be submitted.

On 25 September 1947, Respondent’s representative in the Fourth
Committee repeated Respondent’s previous assurance that it would
continue to maintain the status quo, to administer the Territory in
the spirit of the Mandate, and to transmit to the United Nations for
its information an annual report on its administration of the Territory.
Two days later he explained—in response to a request by the representa-
tive of Denmark for amplification of the letter of 23 July 1947, which
was then before the Committee—that—

“... the annual report which his Government would submit on
South West Africa would contain the same type of information
on the Territory as is required for non-self-governing territories
under Article 73 (e) of the Charter. It was the assumption of his
Government, he said, that the report would not be considered
by the Trusteeship Council and would not be dealt with as if a
trusteeship agreement had in fact been concluded. He further
explained that, since the League of Nations had ceased to exist,
the right to submit petitions could no longer be exercised, since
that right presupposes a jurisdiction which would only exist where
there is a right of control of supervision and in the view of the Union
of South Africa no such jurisdiction is vested in the United Nations
with regard to South West Africa.” (Italics added.)

Here again, there is no answer to the argument that, had it been
considered that the Respondent was obliged to report and account to
the United Nations, i.e., that supervisory functions of the League
had been transferred to the United Nations, somebody would have
challenged Respondent’s contention that the United Nations had no
right of control or supervision with regard to the administration of
South West Africa. The fact is that not a single State did so. Denmark
attended the final session of the League, and so did 30 other States
who were Members of the United Nations in 1947. Once again I must
emphasize that these facts constitute weighty evidence that as at 27 Sep-
tember 1947 the Respondent was not considered to be obliged in terms
of any undertaking, agreement, or instrument to accept the supervision
of the United Nations in respect of its administration of South West
Africa or to account under the provisions of the Mandate to any organ
of the United Nations.

34. No less than 41 Member States addressed one or more of the
organs of the United Nations during 1947 on the matter of South West
Africa. Of these 41 States, 38 States were founder Members of the
United Nations and 20 were represented at the final session of the
League Assembly in April 1946. Not one of these States (nor any other
State) during that year alleged, or even suggested, that there existed an

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agreement, express or implied, whereby the supervisory powers of the
Council of the League over mandates were transferred to the United
Nations, or whereby Respondent became obliged to report and account
to the United Nations as the supervisory authority in respect of man-
dates. On the contrary, at least 14 States—ten of whom had attended
the final meeting of the League—acknowledged that in the absence
of a trusteeship agreement the United Nations would have no super-
visory powers in respect of South West Africa. It is an accepted rule
that when controversy arises as to whether a party to an agreement
has assumed a particular obligation, resort may be had to the subsequent
conduct of the parties. The weight to be attached to such conduct
must necessarily depend on the circumstances of each case. Where
for a relatively lengthy period after the execution of an agreement,
all the parties by conduct accept the position that the agreement does
not embody a particular obligation, then such conduct must bear
considerable weight in a determination whether that obligation exists
or not. If in addition it is at least doubtful whether the events relied
upon were intended to constitute an agreement at all, and if in any
event the alleged “agreement” does not contain any reference to the
suggested obligation, not on account of any inadvertence but because
it was deliberately omitted after being expressly raised, the inference
that no such obligation was imposed is inescapable.

Both Applicant States are ex-members of the League of Nations.
Their representatives and those of practically all other ex-members
of the League who became Members of the United Nations, were present
at meetings of the United Nations organs during 1946 and 1947 when
the Respondent and many other States (including ex-members of the
League)—repeatedly asserted that Respondent was under no obligation
to report and account to the United Nations in respect of its administra-
tion of South West Africa. Not a single State challenged these assertions.
If the Applicants or any other ex-members of the League thought that
the Mandate, or any other instrument, or the events at the dissolution
of the League, or the events subsequent thereto, imposed such an
obligation on the Respondent, they would and should have said so.
Their failure to speak affords conclusive proof of their acquiescence
in Respondent’s statements. Their duty to speak was even stronger if—
as Applicants now contend—each ex-member of the League was meant
to be an upper-guardian of the inhabitants of the Territory, each
entrusted: with the right and duty to demand and enforce compliance
by the Respondent with all its obligations under the Mandate Declar-
ation.

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The cumulative weight of the evidence so far examined is over-
whelming, and the inescapable inference is that not a single Member
of the United Nations, nor a single State who was a Member of the
League of Nations at its dissolution, was under the impression in, or
at any time prior to, 1947 that any agreement had been concluded
whereby the League Council’s authority had been transferred to the
United Nations, or whereby the Respondent became obliged to account
to the United Nations, with regard to its administration of South West
Africa. On the contrary, they either expressly or tacitly agreed that no
such agreement was ever entered into.

35. The view that the League Council’s supervisory powers had not
been transferred to the United Nations was not expressed with reference
to South West Africa alone. In respect of other mandated territories
also similar views were expressed from time to time up to 1948 by
representatives of member States in the United Nations.

In this regard reference has already been made to the United Nations
Special Committee on Palestine. In its report the Committee recom-
mended that the Mandate for Palestine be terminated at the earliest
practicable date and expressed, inter alia, the following unanimous
comment:

“Following the Second World War, the establishment of the
United Nations in 1945 and the dissolution of the League of
Nations the following year opened a new phase in the history of
the mandatory régime. The mandatory power in the absence of
the League and its Permanent Mandates Commission, had no
international authority to which it might submit reports and generally
account for the exercise of its responsibilities in accordance with
the terms of the Mandate. Having this in mind, at the final session
of the League Assembly the United Kingdom representative declared
that Palestine would be administered ‘in accordance with the general
principles’ of the existing Mandate until ‘fresh arrangements had
been reached’.” (Italics added.)

In a subsequent debate in the Security Council regarding Palestine
the representative of the United States of America stated that:

“The record seems to be entirely clear that the United Nations
did not take over the League of Nations mandates system.”

With regard to the Mandate for Western Samoa, the representative
of New Zealand stated in the Fourth Committee on 22 November 1946
that if acceptable terms could not be negotiated for the placing of this
territory under the trusteeship system—

“... New Zealand would have to carry on [its administration of
the Territory] without the privilege of the supervision by the United
Nations, which it desired”’.

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125 SOUTH WEST AFRICA (SEP. OP. VAN WYK)

A statement very much to the same effect was made by the representa-
tive of the Soviet Union when a draft trusteeship agreement for the
former Japanese Mandated Islands was discussed in the Security Council
during April 1947.

36. It was only as from the end of 1948 that certain States (five in
number) voiced a contradiction to the view repeatedly expressed up
to that time, namely that the United Nations had no supervisory powers
in respect of mandates not converted to trusteeship.

Not one of the dissenting States, however, based their contentions
on implied or tacit agreement. Some relied on Article 80 (1) of the
Charter, and others considered that the United Nations had replaced
the League as the “organized international community”, or as the
“civilized and organized international collectivity”, without explaining
by what principle of law the supervisory powers of the League became
vested in the United Nations.

In the same year Respondent, while submitting to the United Nations
certain information in amplification of the report which it had lodged
in the previous year—

6e

. re-iterate[d] that the transmission to the United Nations
of information on South West Africa, in the form of annual report
or any other form, is on a voluntary basis and is for purposes of
information only. They have on several occasions made it clear that
they recognize no obligation to transmit this information to the
United Nations, but in view. of the wide-spread interest in the
administration of the Territory, and in accordance with normal
democratic practice, they are willing and anxious to make available
to the world such factsand figures as are readily at their disposal...”
(Italics added.)

At no time thereafter did Respondent, either expressly or by impli-
cation, acknowledge that it was under any obligation to report and
account to the United Nations in respect of its administration of South
West Africa. On the contrary, it persisted in the attitude that the United
Nations had no supervisory powers in respect of its administration of
the Territory and, in fact, for reasons set out in a letter dated 11 July 1949,
refused to submit any further reports to the United Nations, not even
reports for information purposes.

37. The aforegoing analysis of historical events can lead to only
one conclusion and that is that the supervisory powers of the League
Council were not transferred to the United Nations either by express
or by tacit consent of Respondent, or in any other manner.

This conclusion is in conflict with the majority opinion of this Court
in International Status of South West Africa, I.C.J. Reports 1950, and
it has been suggested that it is also in conflict with the reasoning in
one passage in the majority judgment (five judges) in South West Africa
cases, I.C.J. Reports 1962. A careful examination of the said opinion

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and judgment is therefore necessary, and [ will in the succeeding para-
graphs proceed to make such an examination.

38. In the 1950 Advisory Opinion the Court recognized that the
supervisory functions of the League with regard to mandated territories
not placed under the trusteeship system ‘were neither expressly
transferred to the United Nations nor expressly assumed by that or-
ganization”. From this it must follow that the Court’s finding that
such transfer did take place could, in the absence of any international
principle or rule of succession, have been based only on a tacit or
implied agreement. There does not appear to be any dispute that a
term can be implied only if the admissible evidence reveals that it was
contemplated by the parties, in the sense that they either actually intended
it to operate, or would alf, had their attention been directed thereto,
have acknowledged that it fell within the scope of their agreement.
It has been suggested that the Opinion of 1950 rests on the principle of
effectiveness. This principle embodies the rule that treaties, etc.,

ce

. are to be interpreted with reference to their declared or
apparent objects and purposes; and particular provisions are to be
interpreted so as to give them their fullest weight and effect con-
sistent with the normal sense of the words and with other parts
of the text, and in such a way that a reason and a meaning can be
attributed to every part of the text”.

(See article by Sir Gerald Fitzmaurice in the British Year Book of Inter-
national Law, 1957, XXXII, p. 33.) The principle of effectiveness can
never be divorced from the basic object of interpretation, viz., to find
the true common intention of the parties, and it cannot operate to give
an agreement a higher degree of efficacy than was intended by the
parties. It cannot, therefore, be invoked to justify a result which is not
in harmony with the intention of the parties as expressed by the words
used by them, read in the light of the surrounding circumstances and
other admissible evidence. See Lord McNair’s The Law of Treaties,
1961, page 484, and other authorities quoted in South West Africa
cases, I.C.J. Reports 1962, pages 582-584.

39. The Court in 1950, after stating that the object of the Mandate
far exceeded that of contractual relations regulated by ‘“mandate” in
national law, and that the Mandate was created as an international
institution with an international object (p. 132), for the Respondent to
claim rights derived from the Mandate while denying the obligations
thereunder could not be justified (p. 133). We have been urged to inter-
pret this statement as meaning that, because the Respondent claims
rights in respect of South West Africa, therefore all its obligations
under the Mandate, including those under Article 6, must still be in
force, and that therefore the Assembly of the United Nations must be
deemed to have been substituted for the Council of the League as the

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supervisory authority. If this is what the Court’s statement was intended
to convey, it is obviously wrong. On what basis in law can a claim to
rights by the Respondent today have any effect on the legal situation
resulting from events which occurred in 1920 and 1945-1946?

If the Respondent’s rights and obligations under the Mandate in
law lapsed on the dissolution of the League, a subsequent claim by
the Respondent that it has rights under the Mandate cannot revive
either the rights or the obligations that have lapsed. In any event, the
Respondent does not claim any rights under the Mandate Declaration,
which it contends has lapsed.

Respondent bases its claim to administer the Territory on the events
which preceded the Mandate, and on the fact that it has at all material
times been in de facto control of the Territory. If the Mandate has
lapsed this Court has neither the right, nor the duty, to decide upon
the validity of the Respondent’s aforesaid contentions and I shall
accordingly not express any opinion on the correctness thereof or
otherwise. It is only in the alternative that Respondent says that if the
Mandate should be held to be in force, it would have rights and obliga-
tions under the Mandate, but that these would no longer include an
obligation of report and accountability. If the true position should
indeed be that the Mandate is still in force, either because Respondent
can be said to claim rights thereunder or for any other reason, that
would stili afford no justification for a Court to amend the mandate
provisions by imposing on the Respondent obligations to which it did
not agree, and which, in any event, are more onerous than those imposed
by the Mandate Declaration.

40. A study of the 1950 Opinion shows that the Court first found
that, since the administrative provisions of the Mandate (Articles 2 to 5)
did not depend for their fulfilment on the existence of the League, they
have survived the League (p. 133). The Court next considered the
procedural provisions of the Mandate (Articles 6 and 7), which in the
Court’s view depended for their fulfilment on the existence of the League.
After remarking that the authors of the Covenant considered that the
performance of the sacred trust required international supervision, and
that the authors of the Charter had in mind the same necessity when
they created the international trusteeship system the Court found that
the necessity for international supervision remained after the dissolution
of the League, and that—

“*... it cannot be admitted that the obligation to submit to super-
vision has disappeared merely because the supervisory organ has
ceased to exist, when the United Nations has another international
organ performing similar, though not identical, supervisory func-
tions” (p. 136).

It is difficult to perceive on what legal principles the Court based

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its conclusion that it “could not be admitted” that international super-
vision had disappeared. Throughout its Opinion the Court purported
to be searching for the common intention of the parties to the Covenant,
the Mandate Declaration and the Charter, and I think it is fair to say
that what the Court intended to convey was that it inferred that the
parties to the Mandate and the Charter had a common intention that
“international supervision” of the administration of the mandated
territories should continue after the dissolution of the League, and that
inasmuch as the Assembly of the United Nations was competent to
perform the functions of the Council of the League, the parties must,
in the light of the evidence then before the Court, be assumed to have
intended that the General Assembly should in future perform the said
functions, and that the Respondent is therefore now obliged to report
and account to this organ of the United Nations. If the Court did not
find such a common intention, the only alternative is that it must have
decided to legislate, which would mean that it exceeded its authority. This
Court’s function is laid down in Article 38 of its Statute, which requires
it to decide disputes submitted to it in accordance with international
law, and international law does not authorize the Court to legislate.

In this regard I wish to repeat what I said in South West Africa cases,
LC.J. Reports 1962, page 591:

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

CRE)

process’.

It cannot be assumed that members of this high tribunal would delibera-
tely ignore the elementary and basic principle that the intention of the
parties must rule, and I shall accordingly, as already stated, assume
that the Court in 1950 based its conclusion on what it considered to
have been the common intention of the parties. But, in doing so, the
Court, in my opinion, arrived at a wrong conclusion, mainly because

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it did not have regard to all the relevant facts, many of which were
apparently not brought to its attention. Before dealing with the facts
to which the Court did not have any or proper regard in 1950, I wish
to refer to one or two further aspects of the 1950 Opinion.

40 (a). In 1950 the Court relied exclusively (p. 137) on Article 10 of
the Charter of the United Nations for its finding of competence on
the part of the Assembly to supervise Mandates; but there can be
no doubt that neither this Article or any other article of the Mandate
contains any provision to this effect. The provisions of Article 10 are
confined to matters which are already within the scope of the Charter;
they do not bring any new matters within it—see my dissenting opinion
of 1962, pages 652-653. In any event as will appear more fully infra,
this Court’s jurisdiction is confined in this case to disputes relating
to the interpretation and application of the provisions of the Mandate
for South West Africa, and the Charter of the United Nations is not
a part of that Mandate.

41. In its 1950 Opinion, the Court, as I have already stated, first
found that the administrative provisions of the Mandate survived the
League because they (unlike the so-called procedural provisions) did
not depend for their fulfilment on the existence of the League (p. 133).
It thereupon, in effect, held that because the administrative provisions
were still in force, therefore the necessity for the procedural provisions
remained (p. 136). But inasmuch as the latter provisions stipulated for
reporting and accounting to the Council of the League, they could not
after the dissolution of the League be operable in their original form,
the League Council having ceased to exist.

They could therefore only have survived the League if they. were
amended by the substitution of some organ to function in the place of
the defunct Council of the League.

The Court, having found that Article 6 must have survived the
League, therefore had to find that it survived in an amended form,
i.e., that the Assembly of the United Nations had been substituted for
the Council of the League (p. 136). If this analysis of the Court’s rea-
soning is correct, it would seem, with respect, to expose a fallacy. When
deciding that the administrative provisions had survived the League,
the Court proceeded on the assumption that they could survive separately
from the procedural provisions which depended on the existence of
the League for their fulfilment. This must be so, for the Court reached
its conclusion in regard to the survival of the administrative provisions
without having devoted any discussion at all to the problems pertaining
to survival or otherwise of the procedural provisions. But when it came
to consider whether Article 6 had survived, the Court seems to have
held, in effect, that the administrative provisions could not survive
without Article 6, and that inasmuch as it had already found that the
administrative provisions still applied, it found that Article 6 must
therefore also have survived. In other words the Court seems to have

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relied on two irreconcilable premises, viz., by assuming severability
for the purposes of the first step in its reasoning, and by assuming
inseverability of the same provisions for the purposes of the second
step, which depended upon the first. On the premise of inseverability,
the question whether the administrative provisions survived would
depend on the question whether Article 6 had been appropriately
amended so as to secure ifs survival.

Having reasoned along this line the Court then found what it regarded
as confirmation of the conclusion that Article. 6 had survived in an
amended form, i.e., with the Council of the League being replaced by
the General Assembly of the United Nations as the supervisory body.

Such an amendment could, however, have come about only with
the consent of the Respondent, and the evidence establishes that not
only was there no agreement that the mandatory’s duty to report and
account to the Council of the League would become a duty to report to an
organ of the United Nations, but, that, on the contrary, it was common
cause at all material times that no such change had taken place.

If the provisions of Article 6 were so essential that without them the
rest of the mandate provisions could not exist, then the disappearance
of Article 6 must mean that the whole Mandate has lapsed. On the other
hand, if the said other provisions can still apply even though Article 6
has lapsed, then the disappearance of Article 6 can have no bearing on
the survival or otherwise of the said other provisions.

42. Apart from what has been stated above, the Court referred to no
specific evidence which can justify a finding that the Respondent agreed
to an obligation to submit to the supervision and control of the General
Assembly of the United Nations and to render annual reports to it. The
Court, however, found “confirmation” for what it termed “these general
considerations” in Article 80 (1) of the Charter of the United Nations,
and in the resolution of the Assembly of the League of Nations of
18 April 1946, of which the Court said that it “‘presupposed that the
supervisory functions exercised by the League, would be taken over by
the United Nations”. I have already dealt with the said Article and the
said resolution, and have shown that neither can serve as support for the
Court’s conclusion.

43. Whether due to the fact that all the relevant information was not
placed before the Court, or whether due to an oversight on its part,
it is nonetheless clear that the Court did not have regard to the signifi-
cance of some important events which occurred during the period
1945-1947. Thus the 1950 Opinion makes no reference to the first Chinese
proposal with regard to mandates, which proposal was not proceeded
with, and the only inference that can be drawn from this omission is that

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the Court was either unaware thereof or did not appreciate its vast
significance. Nor is any reference made in the Opinion to the discussions
and proceedings in the Preparatory Commission, which reveal the
absence of any presupposition that the United Nations would automatic-
ally, and without specific provision, become heir to the supervisory
powers of the League, or that the Respondent’s duty to account to the
League would become a duty to account to the United Nations. Similarly,
there is no reference in the Opinion to the proposal made by the United
States of America to the Preparatory Commission that specific provision
should be made for vesting certain organs of the United Nations with
supervisory powers in respect of mandates not converted to trusteeship,
or to the fact that the proposal was dropped and not even raised in the
discussions before the Preparatory Commission. Nor is there any
reference in the Opinion to the report of the Liquidation Committee
of the League.

The Opinion also contains no reference to the findings of the United
Nations Committee on Palestine, which so clearly reveal that there was
no agreement to the effect that an organ or organs of the United Nations
would after the dissolution of the League perform the functions of the
League Council in respect of mandates, and in particular that the duty
to report and account to the Council of the League had not been con-
verted into a duty to report and account to any organ of the United
Nations. The Court also made no reference to the numerous statements
by the Respondent and a large number of Members of the United Nations
(most of them also ex-members of the League) in the years following
the dissolution of the League to the effect that the Respondent was not
under a duty to report and account to the United Nations as a supervisory
authority in respect of mandates.

43 (a). The Court, in referring to the Respondent’s letter of 23 July
1947, stated that this letter drew attention to a resolution of the Union
Parliament (in fact it was a resolution of the House of Assembly only)
in which it requested “that the Government should continue to render
reports to the United Nations Organization as it has done heretofore
under the Mandate”. The Court found that this declaration constituted—

“... recognition by the Union Government of the continuance
of its obligations under the Mandate and not a mere indication
of the future conduct of that Government. Interpretations placed
upon legal instruments by the parties to them, though not conclusive
as to their meaning, have considerable probative value when they
contain recognition by a party of its own obligations under an
instrument...”

I am aware that the above remarks were made by the Court when
it was considering the question whether the substantive or administrative

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provisions of the Mandate had survived the dissolution of the League.
It would, however, appear from the minority opinions of 1956, in which
several judges participated who had been parties to the 1950 Opinion,
that the Court in 1950 was under the impression that the Respondent
had undertaken to report to the United Nations in compliance with the
provisions of Article 6 of the Mandate. It therefore seems as if the Court
in 1950 overlooked the fact that Respondent’s undertaking to report
was not intended to be in compliance of Article 6, but was limited to
reports of the kind provided for in Article 73 of the Charter, a fact which
is apparent from the wording of the very letter itself, in which, as indicated
above, mention is made of Respondent’s undertaking to “submit reports
on their administration for the information of the United Nations”.
The Court also apparently did not appreciate that the resolution referred
to in the letter was not a resolution of Respondent’s Parliament but a
resolution of only one of the Houses of Parliament, and that it had no
legal effect other than that of a recommendation to the Union Govern-
ment, i.e., the Mandatory, as to what should be done in future. As I have
shown above, when the letter is read with the statements which were
made by Respondent’s representatives at the United Nations, both
before and after the date of the letter, it becomes explicitly clear that
Respondent was neither agreeing to submit to the supervision of the
United Nations nor offering to supply any information, other than
information of the nature contemplated in Article 73 of the Charter.
I may add that if the aforesaid resolution is analysed with a view to
ascertaining what the contemplation of the House of Assembly was
regarding obligations under the Mandate, it seems evident that the
following paragraph thereof should not be ignored:

“Whereas the League of Nations has since ceased to exist and
was not empowered by the provisions of the Treaty of Versailles or
of the Covenant to transfer its rights and powers in regard to South
West Africa to the United Nations Organization, or to any other
international organization or body, and did not in fact do so.”
(Italics added.)

44. Not only were cogent reasons advanced in 1950 by Sir Arnold
McNair and Judge Read for dissenting from the majority judges in
respect of this issue, but the majority opinion has elicited strong criticism
from highly qualified publicists. I refer in this regard to George Schwar-
zenberger, International Law (3rd ed.), Volume I, pages 101-102; Manley
O. Hudson, “The Twenty-ninth Year of the World Court”, in American
Journal of International Law, Volume 45, pages 1-36 at pages 13-15; and
Joseph Nisot, ‘The Advisory Opinion of the International Court of
Justice on the International Status of South West Africa”, in South
African Law Journal, Volume 68, Part 3 (August 1951), pages 274-285.
In my opinion there is, for the reasons which I have advanced, complete
justification for such criticism.

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45. Although the soundness of the Court’s 1950 Opinion in regard
to Article 6 of the Mandate Declaration did not necessarily require
decision when the preliminary objections of the Respondent were
considered by this Court in 1962, it was certainly a fundamental issue
in respect of the main one of the alternative contentions advanced by the
Applicants, i.e., the contention, not acceded to by any member of the
Court, of a succession by the United Nations and its Members of the
functions of the League and its members regarding mandates. Conse-
quently several judges expressed views on the matter. Ina joint dissenting
opinion Sir Percy Spender and Sir Gerald Fitzmaurice remarked:

“,.. Wwe think that the view expressed by the Court in its 1950
Opinion, to the effect that the supervisory functions of the former
League Council passed to the Assembly of the United Nations
which was entitled to exercise them, was definitely wrong”. (See
South West Africa cases, I.C.J. Reports 1962, p. 532, footnote 2.)

The said judges based their conclusion, inter alia, on two facts which
were not before the Court in 1950, namely firstly, the content of the
proposal of the Executive Committee of the Preparatory Commission
of the United Nations, which proposal was rejected, and, secondly,
the fact that the Chinese representative was compelled to amend his
original draft resolution by omitting all reference to reporting by manda-
tories to the United Nations.

The effect of the opinion of Judge Bustamante in 1962 is that in the
absence of a trusteeship agreement, the United Nations could not exercise
control over South West Africa. Sir Louis Mbanefo’s opinion also
appears to support the view that administrative supervision of the
Mandate had disappeared on the dissolution of the League. He quoted
with approval an extract from the separate opinion of Judge Read in
Status of South West Africa, I.C.J. Reports 1950, page 165, which
included the following passage:

“The disappearance of the obligations included 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 mandates 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 the six war years had no detrimental
effect upon the maintenance of the well-being and development of
the peoples.” (Italics added.)

And Sir Louis Mbanefo came to the conclusion that on the dissolution
of the League—

ee

. Tights and obligations embodied in it [the Mandate] were
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maintained at the level at which they were on the dissolution of
the League”.

The obligation to report to a non-existing Council of the League could
not be “maintained” at any level.

46. It has been submitted that some passages in the Judgment of the
Court in South West Africa cases, I.C.J. Reports 1962, could be inter-
preted as supporting the Court’s majority opinion of 1950 in regard to
the transfer to the United Nations of the supervisory powers of the
League in respect of mandates. There are, however, no express findings
to this effect, and the impression gained from the Judgment as a whole
is that as far as possible this issue was deliberately avoided, and that the
Court did not intend expressing any opinion thereanent. What is, however,
of considerable significance is that both the conclusion and reasoning
in the said Judgment regarding the survival of the compromissory clause
in Article 7 of the Mandate Declaration support the view that transfer
of supervisory powers did not take place.

The reasoning of the 1962 Judgment compels one to infer that the
Court thought that, as a result of the dissolution of the League, Article 6
of the Mandate no longer applies.

Reference has already been made to the three reasons advanced in the
said Judgment for holding that the words “Member of the League of
Nations” in Article 7 (2) of the Mandate have since, and by reason of
the dissolution of the League, come to mean, for the purposes of the
said Article, ex-member of the League. The first reason was that, inas-
much as a mandatory could during the lifetime of the League by the
exercise of its rights under the unanimity rule, have frustrated the wishes
of the Council of the League relative to the administration of the man-
dated territory, the role of the Court was a very essential one.

With regard to this suggested essentiality of the adjudication clause,
the Court’s attention had been drawn to the fact that three of the trustee-
ship agreements concluded in respect of former mandated territories
do not contain any compromissory clause, and the argument had been
advanced that the Members of the United Nations (and they included
practically all the ex-members of the League) could therefore not have
considered the adjudication clause to be an essential provision.

The Judgment deals as follows with this argument:

“The point is drawn that what was essential the moment before
was no longer essential the moment after, and yet the principles
under the mandates system corresponded to those under the trustee-
ship system. This argument apparently overlooks one important
difference in the structure and working of the two systems and loses
its whole point when it is noted that under Article 18 of the Charter
of the United Nations, ‘decisions of the General Assembly on
important questions shall be made by a two-thirds majority of the

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members present and voting’, whereas the unanimity rule prevailed
in the Council and the Assembly of the League of Nations under
the Covenant. Thus legally valid decisions can be taken by the
General Assembly 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.

For the reasons stated, the First and Second Objections must be
dismissed.”

The effect of this statement is that the adjudication clause is not an
essential provision in the trusteeship system inasmuch as the unanimity
rule which applied to proceedings of the Council of the League does not
apply to the organs of the United Nations, with the result that the
General Assembly and the Trusteeship Council of the United Nations
can take valid decisions without the concurrence of the trustee State.
The authors of the Judgment considered the adjudication clause to be
essential only as long as the unanimity rule applied to the organ entrusted
with administrative supervision, or if such organ should for some
reason or another cease to function. If it should be held that Article 6
of the Mandate was amended by the substitution of the General Assembly
of the United Nations (functioning with an ordinary two-thirds majority)
for the Council of the League, there would be no real difference between
the administrative supervison of the mandated territory and that of a
State under the trusteeship system; which of course would mean—in
terms of the Court’s 1962 reasoning—that the reasons advanced for
regarding the adjudication clause as an essential clause of the Mandate
would no longer apply, and that the construction placed by the Court
on the words ‘“‘another Member of the League” in Article 7 (2) of the
Mandate would not be justified. In other words, the adjudication clause
could have survived on the grounds of its essentiality only if the unanimity
rule which applied to the proceedings of the League Council also applies
to the proceedings of the Assembly of the United Nations when that body
is concerned with the administration of the Mandate, or if administrative
supervision as provided for in the Mandate has come to an end. In this
Court’s Advisory Opinion of 1955, it was held that the unanimity rule
cannot apply in any proceedings of the General Assembly of the United
Nations, and this view was confirmed by the 1962 Judgment. If the said
Opinion is sound, then a finding that the supervisory powers of the Coun-
cil of the League were transferred to the General Assembly of the
United Nations would be in conflict with the reasoning in the 1962
Judgment. -

The inescapable conclusion accordingly is that the reasoning of the
1962 Judgment cannot be reconciled with a contention that the super-
visory functions of the Council of the League became vested in the
General Assembly of the United Nations.

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47. There is also another aspect of the reasoning of the 1962 Judgment
which negatives the possibility of the General Assembly of the United
Nations having succeeded to the supervisory functions of the League
Council. The Court relied upon what it found to be an agreement among
the members of the League in April 1946 to continue the mandates “as
far as it was practically feasible or operable with reference to the obli-
gations of the mandatory powers’’. It was held that the purpose of this
agreement was to make up for the “imperfections as far as was practic-
able” and “to maintain the status quo as far as possible in regard to the
mandates”. At page 341 of the Judgment the agreement is described as
follows:

“Tt is clear from the foregoing account that there was a unanimous
agreement among all the Member States present at the Assembly
meeting that the Mandates should be continued to be exercised in
accordance with the obligations therein defined although the disso-
lution of the League, in the words of the representative of South
Africa at the meeting, ‘will necessarily preclude complete compliance
with the letter of the Mandate’, i.e. notwithstanding the fact that some
organs of the League like the Council and the Permanent Mandates
Commission would be missing. In other words the common under-
standing of the Member States in the Assembly—including the
Mandatory Powers—in passing the said resolution, was to continue
the Mandates, however imperfect the whole system would be after
the League’s dissolution, and as much as it would be operable,
until other arrangements were agreed upon by the Mandatory
Powers with the United Nations concerning their respective Man-
dates.” (Italics added.)

Had the Court considered that Article 6 of the Mandate had been
amended by the substitution of the General Assembly of the United
Nations for the Council of the League, the above-quoted expression
would not have been used. There would have been no “imperfections”
which could only be made up for “as far as was practicable’. The
agreement to continue ‘as much as ... would be operable” must have
presupposed that Article 6 would not be operable, because if it were
operable and if, as the Court had held, Article 7 still applied, there would
have been nothing that could not be operable and the words “as much
as ... would be operable” would have been meaningless. In any event,
the purpose could not have been “to maintain the status quo” and at the
same time to bring about radical amendments. There could be no question
of maintaining the status quo if the supervisory powers were transferred
to a body the membership of which was not the same as that of the
League, and which functioned in a manner substantially different from
that which applied in the League Council. The status quo could not be
maintained if by the suggested substitution Respondent’s rights under
the unanimity rule would be abolished.

48. As I have already mentioned, the Court did not base its finding

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on any principle of succession. The Court based its finding on its interpre-
tation of the mandate instrument and on acts which it considered consti-
tuted an agreement to the effect that the expression ‘Member of the
League” in Article 7 of the Mandate Declaration should be construed
as meaning ‘‘ex-Members of the League, who were Members at the time
of its dissolution”. In other words, it found that the rights of the members
of the League under the Mandate were not transferred to the members
of the United Nations, but that States which were members of the League
at its dissolution retained their rights to invoke the adjudication clause
in Article 7 of the Mandate. If this view is sound, it could surely not have
been the intention of the parties that the administrative supervision
provided for in Article 6 of the Mandate would be transferred to the
United Nations, because if such a transfer took place it would mean
that States which are not members of the United Nations, and which
would therefore have no say in the “‘administrative supervision”, would
nonetheless have competence in the “judicial supervision”, and that,
likewise, many States entitled to take part in the “administrative super-
vision” would have no competence in the “judicial supervision”. Such
an anomalous result could not possibly have been contemplated by the
Court. For the above reasons the 1962 Judgment cannot be reconciled
with a contention that the supervisory powers of the Council of the
League were transferred to the United Nations.

49. My conclusion, therefore, is that Respondent is not under any
obligation to report and account to the United Nations relative to its
administration of South West Africa. Article 6 of the Mandate Decla-
ration and the corresponding provisions of Article 22 of the Covenant
of the League ceased to apply on the dissolution of the League. Appli-
cants’ Submissions 2, 7 and 8 should accordingly be dismissed.

50. It has been suggested that the Respondent is estopped from
denying an obligation to report and account to the United Nations.
In my opinion it is not estopped. Not only has Respondent at all material
times consistently denied such an obligation, but also no State has at any
material time alleged that it was induced by Respondent’s word or
conduct into thinking that the Respondent had acknowledged such an.
obligation. The Applicants cannot suggest anything of the kind, because
they would not be able to reconcile such a suggestion with their silence
and acquiescence during 1945, 1946, 1947 and 1948.

ARTICLE 73 OF THE CHARTER OF THE UNITED NATIONS

1. It may be contended that if Article 6 of the Mandate ceased to
apply, the reporting provisions of Article 73 of the Charter of the
United Nations (although far more limited in scope and effect) now
apply to the territory of South West Africa. This raises two major

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questions: firstly, whether this matter is part of the Applicants’ claim,
i.e., has it been referred to the Court for decision by the Applicants,
and secondly, whether the Respondent has consented to the Court’s
jurisdiction in respect thereof 1.

2. The Applicants not only deliberately did not refer this issue to
the Court, but strenuously contended that Article 73 has no application
as far as South West Africa is concerned.

3. In their Applications they alleged that—

*.. the Union has violated, and continues to violate Article 6
of the Mandate, by its failure to render to the General Assembly
of the United Nations annual reports containing information with
regard to the territory and indicating the measures it has taken
to carry out its obligations under the Mandate”.

Submissions B, C and J in the Applications equally leave no room for
any doubt that the claim was based on Article 6 of the Mandate as read
with Article 22 of the Covenant. In the Memorials the Applicants
relied solely on this Court’s 1950 Opinion, which held that Article 6
of the Mandate survived the dissolution of the League, but that the
applicability of Article 73 was irrelevant—despite the fact that argument
thereon was heard. Submissions 2 and 7 of the Memorials, and as
finally drafted, similarly leave no room for any doubt that the claim
embraced by them was based on Article 6 of the Mandate. In the Reply
Applicants’ contention was defined as follows: “Respondent’s obligation,
as stated in Article 6 of the Mandate, is in effect, and Respondent is
accountable thereunder to the United Nations, as ‘the organized inter-
national community” ”’. It was stated in express terms that “Applicants”
submissions do not allege violations by Respondent of such obligations”
(i.e., obligations under Article 73 of the Charter). In the oral proceedings,
Applicants were at great pains to demonstrate that they did not rely on
Article 73 (e), and emphasized that the claim was based on Article 6

1 A judge is of course at all times free to express his views on a matter falling
outside the competence of the Court if he considers it relevant to an issue validly
under consideration, but such views are obviously obîter dicta. I find it unnecessary
{as in 1962) to make even an obiter statement on this complicated matter which
has not been argued as an issue by either Party. If the matter was relevant it would
have been necessary to consider the difficulties raised by Dr. Steyn in his argument
before this Court in 1950 (Status of South West Africa, I.C.J. Pleadings, pp. 273-317),
and to investigate such matters as the legal effect of the consistent denial by the
United Nations organs of the applicability of Article 73 to South West Africa,
the alleged abuse of the provisions of this Article by the Assembly of the United
Nations referred to by Respondent’s counsel during the oral proceedings, etc. It
would furthermore entail a consideration of the alleged non-compliance by the
United States with the provisions of this Article with regard to those Pacific Islands
which were formerly subject to a League of Nations mandate held by Japan, and
which have not been placed under a trusteeship agreement.

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of the Mandate. They consistently resisted any suggestion that Article 73
(e) might be applicable.

4. It has been repeatedly laid down by this Court that only matters
raised in the final submissions of the parties will be considered and that
the Court will abstain from deciding issues not raised in such submis-
sions. The Court certainly has no power to depart from a submission
in order to decide an issue not included therein and not intended to be
so included.

5. In any event this Court has no jurisdiction to pronounce on this
issue. The only provision on which jurisdiction could be based is
Article 7 (2) of the Mandate Declaration, and this limits the Court’s
jurisdiction to disputes between the Respondent and another member
of the League relating to the interpretation and application of the
provisions of the Mandate which cannot be settled by negotiation.
The Respondent has never had any dispute with the Applicants relating
to the interpretation or application of the provisions of Article 73;
there has accordingly never been any attempt to settle such dispute,
and these provisions are in any event provisions of the Charter of the
United Nations, and not provisions of the Mandate. Even if Article 73
should apply to South West Africa, it does not therefore become a
provision of the Mandate, just as the provisions of any other instrument
entered into by the Respondent with regard to South West Africa could
not be regarded as provisions of the Mandate. The preamble of the
Mandate tells us what its provisions are.

6. In any event, Article 73 conferred no legal rights or interest on
Applicants, and for the reasons mutatis mutandis stated in the Judgment,
they would have no legal right or interest in any claim based on this
Article.

THE ALLEGED BREACHES OF ARTICLES 2, 4 AND 7 (1)

Even if Article 7 (2) as well as the provisions of the conduct clauses
of the Mandate are still in force and even if the Applicants have sub-
stantive legal rights in respect thereof their submissions relating to
alleged breaches of Articles 2, 4 and 7 (1) should nonetheless, in my
opinion, be dismissed for reasons which I am about to state.

The main complaints relate to Article 2 (2) and they will be considered
first.

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Article 2 (2)
(Submissions 3 and 4)

History of the Submissions

1. Article 2 of the Mandate reads as follows:

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

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

For a full appreciation of the issues before the Court regarding
alleged contraventions of this Article, it will be necessary to give some
consideration to the history of Applicants’ relevant submissions, starting
with the Applications.

2. In compliance with Article 32 (2) of the Rules of Court, Applicants
stated the precise nature of their claims relative to Article 2 (2) of the
Mandate Declaration in paragraphs E, F and G of the submissions
included in their Applications. In effect these claims were based on
allegations:

(a) that the Respondent had failed to achieve the results contemplated
by Article 2, paragraph 2, of the Mandate;

(b) that the Respondent had “practised apartheid, i.e., [had] distin-
guished as to race, colour, national or tribal origin, in establish-
ing the rights and duties of the inhabitants of the territory’; and

(c) that the Respondent had adopted and applied legislation, regula-
tions, proclamations and administrative decrees which were, by
their terms and their application, arbitrary, unreasonable, unjust
and detrimental to human dignity.

3. In the Memorials the relevant submissions were drafted rather
differently. After setting out the facts and the legal contentions upon
which the Applicants relied, the following summaries appeared in
paragraphs 189 and 190 of Chapter V:

“189. As the Applicants have previously pointed out, the policy
and practice of apartheid has shaped the Mandatory’s behavior
and permeates the factual record. The meaning of apartheid in the
Territory has already been explained hereinabove. The explanation
warrants repeating. Under apartheid the status, rights, duties, ope

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SOUTH WEST AFRICA (SEP. OP. VAN WYK)

portunities and burdens of the population are fixed and allocated
arbitrarily on the basis of race, color and tribe, without any regard
for the actual needs and capacities of the groups and individuals
affected. Under apartheid, the rights and interests of the great
majority of the people of the Territory are subordinated to the
desires and conveniences of a minority. We here speak of apartheid,
as we have throughout this Memorial, as a fact and not as a word,
as a practice and not as an abstraction. Apartheid, as it actually
is and as it actually has been in the life of the people of the Territory,
is a process by which the Mandatory excludes the ‘Natives’ of the
Territory from any significant participation in the life of the
Territory, except in so far as the Mandatory finds it necessary to
use the ‘Natives’ as an indispensable source of common labor or
menial service.

190. Deliberately, systematically and consistently, the Mandatory
has discriminated against the ‘Native’ population of South West
Africa, which constitutes overwhelmingly the larger part of the
population of the Territory. In so doing, the Mandatory has not
only failed to promote ‘to the utmost’ the material and moral
well-being, the social progress and the development of the people of
South West Africa, but it has failed to ‘promote such well-being
and social progress in any significant degree whatever. To the
contrary, the Mandatory has thwarted the well-being, the social
progress and the development of the people of South West Africa
throughout varied aspects of their lives; in agriculture; in industry,
industrial employment, and labor relations; in government,
whether territorial, local or tribal, and whether at the political or
administrative levels; in respect of security of the preson, rights
of residence and freedom of movement; and in education. The
grim past and present reality in the condition of the ‘Natives’ is
unrelieved by promise of future amelioration. The Mandatory
offers no horizon of hope to the ‘Native’ population.” (Memorials,
pp. 161-162.) [Then follows a summary of the specific matters
dealt with in the Memorials.]

Then followed submissions which included the following:

139

3. the Union, in the respect set forth in Chapter V of this
Memorial and summarized in Paragraphs 189 and 190 thereof,
has practised apartheid, i.e., has distinguished as to race, color,
national or tribal origin in establishing the rights and duties of
the inhabitants of the Territory; that such practice is in violation
of its obligations as stated in Article 2 of the Mandate and Article 22
of the Covenant of the League of Nations; and that the Union
has the duty forthwith to cease the practice of apartheid in the
Territory;

4, the Union, by virtue of the economic, political, social and
educational policies applied within the Territory, which are described
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in detail in Chapter V of this Memorial and summarized at Para-
graph 190 thereof, has failed to promote to the utmost the material
and moral well-being and social progress of the inhabitants of the
Territory; that its failure to do so is in violation of its obligations
as stated in the second paragraph of Article 2 of the Mandate and
Article 22 of the Covenant; and that the Union has the duty forth-
with to cease its violations as aforesaid and to take all practicable
action to fulfil its duties under such Articles.”

It will be noted that the submissions as formulated in the Memorials
were narrower than those in the Applications. In the Memorials Appli-
cants whole case amounted and was confined to an allegation of
deliberate oppression, which had been only one of several elements
relied upon in the Applications. In view of subsequent developments
this feature does not, however, appear of any great significance, and it is
merely noted in passing.

4. In its Counter-Memorial the Respondent dealt in detail with
Applicants’ allegations, many of which were denied including those
contained in paragraphs 189 and 190 of Chapter V of the Memorials.

5. Apparently in an attempt to limit the factual enquiry which would
have been necessitated by the conflicting averments in the Memorials
and Counter-Memorial, Applicants in the Reply added a further cause
of action, which rested on an alleged norm of non-discrimination or
non-separation, defined as follows at page 274 of the Reply:

“In the following analysis of the relevant legal norms, the terms

‘non-discrimination” or ‘non-separation’ are used in their prevalent
and customary sense: stated. negatively, the terms refer to the
_absence of governmental policies or actions which allot status,
rights, duties, privileges or burdens on the basis of membership
in a group, class or race rather than on the basis of individual
merit, capacity or potential: stated affirmatively, the terms refer to
governmental policies and actions the objective of which is to
protect equality of opportunity and equal protection of the laws to
individual persons as such.”

They also relied upon an undefined concept referred to as “‘standards’’,
but, in view of later definition and explanation of Applicants’ case in
this regard, it is not necessary to analyse the relevant parts of the Reply.
The nature of the standards ultimately relied upon by Applicants will be
considered hereafter.

6. Despite the introduction of the new cause of action based on
the alleged “norm of non-discrimination or non-separation” and the
undefined standards, Applicants in their Reply persisted with contentions
which could be reconciled only with a case based on alleged oppression

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(vide, e.g., Reply, pp. 53-55). The position at the commencement of the
oral proceedings then was that Applicants’ submissions were in the form
stated in the Memorials and quoted above (in which allegations of
oppressive conduct featured prominently) but in addition some reliance
was placed on the existence of the alleged “norm of non-discrimination
or non-separation” and undefined standards.

7. In the course of the oral proceedings Applicants’ case was further
defined and narrowed down. It is not necessary or desirable to trace
in detail the manner in which this happened. However, some reference
has to be made to the main aspects of the process by which Applicants’
case came to be narrowed down.

The first aspect to which attention should be directed is that, by
agreement between the Parties, the extent of the factual dispute between
them was first whittled down, and subsequently reduced to negligible
proportions.

The virtual elimination of disputes as to fact occurred gradually
over a period, but there would appear to have been two main steps,
the record of each of which may usefully be quoted. The first was an
agreement reached between the Parties prior to the commencement of
the oral proceedings, which agreement was communicated to the Court
in the following terms:

“South West Africa Cases

Agreement Regarding Factual Averments

Subject to reserving their right to contest the relevance of facts
contained in Respondent’s pleadings, including the oral proceedings,
Applicants agree that such facts—as distinct from inferences which
may be drawn therefrom—are not contested except as otherwise
indicated, specifically or by implication, in Applicants’ Written
Pleadings or in the oral proceedings.

This agreement pertains also to factual averments in respect of
which no documentary proof has been filed, including statements
made upon Departmental Information.

Any denial of averments made in the Rejoinder will be intimated
by Applicants at the earliest convenient stage in the oral proceedings.”

The further intimation foreshadowed in this agreement was given
by Applicants’ Agent on 27 April 1965. The effect thereof was that no
averments or denials of fact by Respondent were contested by Applicants.
For convenience I quote the relevant passage in the oral proceedings.
It reads as follows:

“All facts set forth in this record, which upon the Applicants,
theory of the case are relevant to its contentions of law, are un-
disputed. There have been certain immaterial, in our submission,

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allegations of fact, data or other materials which have been contro-
verted by the Respondent and such controversion has been accepted
by the Applicants and those facts are not relied upon. The Applicants
have gone further in order to obviate any plausible or reasonable
basis for an objection that the Applicants have not painted the
whole picture in their own written pleadings. The Applicants have
advised Respondent as well as this honourable Court that all and
any averments of fact in Respondent’s written pleadings will be and
are accepted as true, unless specifically denied. And the Applicants
have not found it necessary and do not find it necessary to controvert
any such averments of fact. Hence, for the purposes of these pro-
ceedings, such averments of fact, although made by Respondent in a
copious and unusually voluminous record, may be treated as if in-
corporated by reference into the Applicants’ pleadings.” (C.R. 65/22,
at p. 39.)

The effect of these admissions was to reduce and to alter the content
and ambit of the dispute(s) between the Parties. The admissions consti-
tute pro tanto a settlement of the dispute or disputes of which they
formed a part. I know of no reason in law, logic or justice why full effect
should not be given to them.

8. But the change in Applicants’ case was not confined to the ad-
missions to which reference has just been made. Amongst the most
vigorously contested factual averments in the Memorials and Reply
were those constituting or bearing upon the allegations that Respondent’s
policies were oppressive in intent or effect—allegations which were
incorporated by reference in Submissions 3 and 4. It was therefore
logically impossible for Applicants to accept as correct Respondent’s
averments or denials of fact whilst persisting in submissions based upon
contested allegations of oppression. The logic of this situation (frequently
commented on by Respondent’s Counsel) eventually compelled Appli-
cants to amend their Submissions 3 and 4 so as to delete all references
to paragraphs 189 and 190 of Chapter V of the Memorials (in which
the disputed allegations of oppressive conduct appear with particular
vigour) as well as references to the said Chapter V generally, and to
make it clear that Applicants relied solely on the alleged “norm of
non-discrimination or non-separation” as defined at page 274 of the
Reply (quoted above) as well as on ‘‘standards” +. As regards the latter,
I pointed out above that they had not been defined in the Reply. In the
course of the oral proceedings, Applicants’ Agent rendered it clear that
the “standards” on which he relied were rules legally enforceable against
Respondent in its capacity as Mandatory, and having exactly the same
content as the “norm”, i.e., as defined at page 274 of the Reply. I shall
later deal with the differences between the concepts of “norm” and

1 Text of amended submissions is given in para. 10 below.

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“standards”. At present J would emphasize only that as regards content
they were alleged to be identical.

9. Both prior to the amendment of Applicants’ submissions, and
subsequently, Applicants made it clear that their whole case as regards
alleged contraventions of Article 2 (2) was based on the existence of the
alleged norm or standards of non-discrimination or non-separation.
This occurred in the course of argument on the inspection proposal as
well as on the merits, in reply to questions from the Court as well as to
comment by Respondent’s counsel. Applicants’ final attitude was that
there existed no dispute of fact between the Parties, inasmuch as Appli-
cants had accepted all Respondent’s averments and denials, and had
stated clearly their whole case was based on the existence of the alleged
norm or standards. In the words of the Applicants’ Agent:

“The issue before the Court, accordingly, is whether the processes
of the organized international community have or have not eventu-
ated in international standards or an international legal norm,
or both.” (C.R. 65/31, p. 32.)

Whereas the Applicants originally defined apartheid as constituting
wilful oppression and unjust discrimination, they ultimately emphasized
that it was merely used in the sense defined in Submission 3.

10. The actual amendment of Applicants’ Submissions Nos. 3 and 4,
bringing them into conformity with the earlier admissions of fact and
informal definitions of Applicants’ case, occurred on 19 May 1965, just
before Applicants’ Agent rested their case. The amended submissions
read as follows:

“Upon the basis of allegations of fact, and statements of law set
forth in the written pleadings and oral proceedings herein, may it
please the Court to adjudge and declare, whether the Government
of the Republic of South Africa is present or absent, that:

3. Respondent, by laws and regulations, and official methods
and measures, which are set out in the pleadings herein, has practised
apartheid, i.e., has distinguished as to race, colour, national or tribal

origin in establishing the rights and duties of the inhabitants of
the Territory; that such practice is in violation of its obligations

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as stated in Article 2 of the Mandate and Article 22 of the Covenant
of the League of Nations; and that Respondent has the duty forth-
with to cease the practice of apartheid in the Territory:

4. Respondent, by virtue of economic, political, social and
educational policies applied within the Territory, by means of
laws and regulations, and official methods and measures, which
are set out in the pleadings herein, has, in the light of applicable
international standards or international legal norm, or both, failed
to promote to the utmost the material and moral well-being and
social progress of the inhabitants of the Territory; that its failure
to do so is in violation of its obligations as stated in Article 2 of
the Mandate and Article 22 of the Covenant; and that Respondent
has the duty forthwith to cease its violations as aforesaid and to
take all practicable action to fulfil its duties under such Articles.”
(C.R. 65/35, 19 May 1965, pp. 69-70.)

In addition the following “formal ... and explanatory comments
with respect to} the foregoing submissions” were presented to the Court:

“{a) The response to the question addressed to the Applicants
by the honourable President during the course of the proceedings
of 28 April 1965, C.R. 65/25, page 31, is hereby reaffirmed in the
following respects, in particular:

1. The formulation of Submission 4 is not intended in any
manner to suggest an alternative basis upon which the Applicants
make or rest their case, other than the basis which the Applicants
present in Submission No. 3 itself (reference is made to the verbatim
record 65/24, 30 April, p. 11); the distinction between Submissions 3
and 4 being verbal only, for reasons which have been set out in the
cited section of the verbatim record.

2. The reference in Submission 4 to ‘applicable international
standards or international legal norm, or both’ is intended to refer
to such standards and legal norm, or both, in the sense as described
and defined in the Reply at page 274, and solely and exclusively as
there described and defined.” (C.R. 65/35, 19 May 1965, pp. 71-72.)

11. It will be observed that all references to Chapter V of the Me-
morials, and in particular paragraphs 189 and 190 thereof, have been
deleted. Submission 4, however, even without these references could
still have been interpreted as a general allegation that the Respondent’s
policies, etc., fail to promote to the utmost the material and moral
well-being and social progress of the inhabitants of the Territory. To
avoid this possibility the Applicants resorted to two methods. The first
was to qualify the general allegation of failure to promote well-being
and progress to the utmost by the words “in the light of the applicable
international standards or international legal norm or both”. The second

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method was to add the formal interpretations and explanatory comments,
so as to make it abundantly clear that Submission 4 did not rest upon
an alternative basis to that of Submission 3, and that both Submissions
rested exclusively on the norm or standards defined at page 274 of the
Reply.

12. If one now compares the final submissions with the original
statement of the precise nature of Applicants’ claims in the Applications,
it appears that the claims based upon allegations of arbitrary, unreason-
able, and unjust actions, and on conduct detrimental to human dignity,
have disappeared from the final submissions. The same applies to claims
based on allegations that Respondent had in fact failed to achieve the
results contemplated by Article 2 (2) of the Mandate. Indeed it appears
quite clearly that the allegation of failure on the part of the Respondent
to perform its duties has been narrowed down to breaches of an alleged
international norm and/or standards as defined at page 274 of the
Reply. As I have noted, the amended submissions in all these respects
correspond entirely with informal explanations repeatedly given by
Applicants’ Agent during the course of the oral proceedings. I shall deal
more fully with the legal effect of the amended submissions presently.

Legal Principles Applicable to the Interpretation of Submissions

13. Rule 42 requires that a Memorial shall contain a statement of the
relevant facts, statements of law, and the submissions. These submissions
define the issues which the Court is asked to determine, i.e., they state
concisely and precisely the conclusions the Court is asked to draw from
the facts and the law, and the relief asked for.

Just as in municipal systems, where the statement of claim (which
broadly corresponds to the submissions) may omit an issue included
in the writ (which broadly corresponds to the Application commencing
an action in this Court), so also in proceedings in this Court submissions
may omit issues mentioned in the Application. Such an omission consti-
tutes an abandonment of whatever is omitted, and cannot constitute a
part of the issues before the Court.

It follows therefore, that only matters included in the final submissions
will be considered, i.e., the Court will abstain from deciding issues not
raised in such submissions.

14. Where two or more parties have decided to refer a particular
dispute to the Court, and the submissions or special agreement fail to

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define such dispute satisfactorily, it would appear that the Court may
depart from the strict wording of the submissions or special agreement
in order to decide the true issues which the parties intended to refer to it.
Such action on the part of the Court of course postulates that there
exists an actual intention of the parties which is not properly expressed
in the submissions or special agreement. In the present case the proceed-
ings are before the Court, not by ad hoc agreement between the Parties,
but by Application in terms of a general compromissory clause, viz.,
Article 7 (2) of the Mandate. Consequently there can be no question of
the existence of any common desire or intention on the part of both
Parties to place a particular issue before the Court—it is the Applicants
alone which invoke the Court’s jurisdiction and the Court can at most
enquire as to which issues they (i.e., the Applicants) wish to refer to it.
It is of course obvious that a party is not compelled to invoke the
assistance of the Court for each and every dispute which would be cog-
nizable by it.

Where a particular provision in an instrument may be breached in
more than one respect, the Applicant is not bound to allege that it was
breached in all these possible respects. The Applicant may choose to
allege a breach in one respect only, and deliberately formulate its sub-
missions accordingly. Such a formulation would narrow the issue, and
this Court would have no power to enquire whether some of the evidence
placed before it might or might not constitute proof of a breach in a respect
not alleged in the submissions. This is the more so when the Court knows
that such other respect was deliberately deleted from the submissions,
and for this reason all the evidence relative thereto that could have been
placed before it has not been produced. If, e.g., Submission 5 was the
only submission relative to Article 2, this Court would have had no
authority to enquire into, say, the issues raised in the original Submissions
3 and 4, even if it has competence to deal with such issues if properly
taised.

15. Where the particular respect in which a provision is alleged to
have been breached is pin-pointed in the submissions, such particulari-
zation has the effect of narrowing the issues. Such particulars do not
constitute the reasons for the allegation that the provision has been
breached, but they serve to qualify or circumscribe such allegation
so as to reduce the issue to breaches falling within the ambit of such
qualification or circumscription. In other words such particulars are
still bare averments by the parties presenting them, their purpose and
effect being, inter alia, to indicate a precise limit to the factual allegations
which the other party or parties are called upon to meet. They must be
distinguished from arguments. Arguments do not define the alleged
breach, but advance reasons why the Court should hold that a breach
has occurred in the respects alleged in the submissions. Arguments
consequently go beyond bare assertions. They provide the logical links
between premises and conclusions—often the suggested links between
facts (admitted, established or alleged) and the conclusions averred
in the submissions. The Court is not bound by the arguments of the

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parties in support of the averred conclusions in their submissions, whether
such arguments are advanced of outside of the formulation of the
submissions, but it is bound to confine itself to the dispute as par-
ticularized therein. It is only arguments, as distinct from particulars which
narrow the issue, that the Court may disregard when construing the
submissions. This is also the reason for the rule that the parties cannot
force the Court to choose between two suggested interpretations of an
instrument, since obviously the Court may find both interpretations
unacceptable. However, this power of the Court is relevant only in so
far as its interpretation may be a link in reasoning leading to acceptance
of the submissions of either of the parties, or, possibly to a result of
non possumus with reference to the submissions and issues before it.
The Court is not entitled to proceed from its own interpretation to the
making of an order not requested by either party.

16. In short, in a case like the present (assuming jurisdiction and
admissibility), the Applicants are entitled to place any dispute falling
within a defined category before the Court. To ascertain the nature of
the dispute, reference must prima facie be had to the submissions. The
Court may, in my view, depart from the submissions only where it is
satisfied that they do not accurately reflect the intention of the Applicants,
and where, in addition, the Court is satisfied that the Respondent had
adequate knowledge or notice of the actual case sought to be made by
the Applicants. It goes without saying that no court would decide an
issue against a party who has not had proper and fair notice thereof.

17. If a question arises as to the actual intendment of the Applicants,
or the sense in which Applicants’ submissions were understood by the
Respondent, the Court must in my view necessarily have regard, inter
alia, to the statements of the respective parties. Of course, the Court is not
bound by the parties’ interpretation of the submissions. But where
clarifications are incorporated in the final submissions as formal explan-
ations and definitions they must be regarded as part and parcel thereof.

There also appears to be no reason why, in the case of any doubt
as to the true meaning of a submission, the Court, or a member thereof,
should not obtain an explanation by means of a question directed to the
party concerned. In fact Article 52 of the Rules expressly authorizes
the Court or a judge to ask for explanations, and there is no proviso
excepting submissions from this provision. If the Court is not to have
any regard to such explanations, there would be no point in putting
any questions.

Where submissions are amended the Court, in construing such
amended submissions, may, in case of doubt, have regard to the history
of the case that led to or culminated in such amendments.

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18. Applying the above principle, I now turn to a consideration of
the meaning and effect of Applicants’ amended Submissions Nos. 3 and 4.

The Meaning and Legal Effect of Submissions Nos. 3 and 4

19 (a). It may be convenient to preface my discussion of this topic
with some general remarks about the provisions of Article 2 (2), and
the type of issues which could arise thereunder. For the purposes of these
remarks [ shall assume, contrary to the view expressed above, that the
Court has jurisdiction to adjudicate on alleged contraventions of the
Article. An applicant may, hypothetically, ask the Court to decide as a
fact that a particular policy or measure does not promote well-being
and progress, or is likely to harm well-being and progress. This does not
appear to me to be the type of issue which could properly be determined
by a court of law, or which the authors of the mandates system could
have intended to be referable to a court of law. But, be that as it may,
such an issue would at the very least necessitate a very full enquiry into
the facts and circumstances pertaining to the policy or measure, or its
field of operation.

(b} Alternatively, an applicant may ask the Court to hold that no
attempt whatever has been made to promote well-being and progress,
or that the mandatory’s policies were directed towards some ulterior
purpose. In my view, if the Court were to have jurisdiction at all in
respect of alleged violations of Article 2 (2) of the Mandate, its powers
would be limited to investigating only questions such as these. The
Mandate conferred on Respondent ‘‘full power of administration and
legislation over the Territory subject to the present Mandate as an
integral portion of the Union of South Africa”, and provided that
Respondent might “apply the laws of the Union of South Africa to the
Territory, subject to such local modifications as circumstances may
require.”

(c) These wide powers were of course limited by the general objectives
of the Mandate. However, these objectives were embodied in expressions
such as “the well-being and development of the inhabitants”, and
“promote to the utmost the material and moral well-being and social
progress of the inhabitants”. The effect of these provisions is—and this
interpretation is confirmed by the French text—that the Respondent
was placed under a duty to do its best to achieve the aforesaid objectives
having regard to the resources available in the Territory and the realities
as they existed both in South Africa and in the Territory, the latter
having been contemplated as forming, or as capable of being treated as,
‘an integral portion” of the former.

(d) Quite clearly the grant o1 such extensive powers of government,
coupled with such a broadly stated trust purpose, had the effect of
vesting in the Mandatory a discretion to determine the methods and
measures whereby it would endeavour to give effect to the trust. Such

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a discretion is, indeed, a normal incident of powers of government.
Thus in Lighthouses case between France and Greece, Judgment, 1934,
P.C.LJ., Series A]B, No. 62, page 22, the Court remarked that:

“... any grant of legislative powers generally implies the grant of
a discretionary right to judge how far their exercise may be necessary
or urgent; ... It is a question of appreciating political considerations
and conditions of fact, a task which the Government, as the body
possessing the requisite knowledge of the political situation is
alone qualified to undertake.” (Italics added.)

Similar conclusions were reached, specifically with reference to ‘C’
mandates generally, and South West Africa in particular, by eminent
lawyers and commentators on the mandates system (vide Counter-
Memorial, Book IV, pp. 387-389 and Rejoinder, Vol. I, pp. 176-177,
where reference is made to comments by Chief Justice Latham of Aus-
tralia, M. Orts, Lord Hailey, Quincy Wright and Norman Bentwich).

(e) The essence of a discretionary power is that the holder of the
power is entitled by law to choose between two or more alternative
courses of conduct. When he so chooses, he does no more than he is
entitled to, and a court of law, unless specifically granted powers of
appeal, cannot interfere merely because it does not agree with the decision
of the person exercising the discretion. In the absence of special provision,
a court of law is not an appellate authority over the holder of such a
power, and the court cannot substitute its own decision for his. The
most a court of law could do by virtue of its normal powers is to enquire
whether the acts in question were illegal; and it follows from the very
nature of a discretionary power that an act is not illegal merely because
a court considers that, had it been the holder of the power, it would
have acted differently.

(f) Tilegal conduct by the holder of a discretionary power occurs
where he does not exercise his power at all, or where he exercises the
power in a manner contrary to express or implied limitations, prohibitions
or injunctions relating to such power. These limitations, prohibitions or
injunctions may take a variety of forms. There may, for instance, be
provisions regarding procedure or form, or limitations regarding the
subject-matter to which the power relates or regarding the objects for
which the power may be exercised. Failure to comply with such limiting
or regulatory provisions may of course occur in complete good faith
(e.g., by reason of a wrong interpretation of the provisions of the instru-
ment) or it may be due to improper motives or some other form of bad
faith.

(g) In the case of the Mandate, the limitations upon the Mandatory’s
powers were laid down in Articles 3, 4 and 5 of the Mandate Declaration
(with which we are not concerned at the moment) and in Article 2 (2)
thereof. The latter Article in effect lays down the objective to be pursued
by the Mandatory. It follows, therefore, that an exercise of the Man-

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datory’s discretion would be declared illegal in terms of Article 2 (2)
only where the Mandatory did not pursue the authorized purpose. Such
a failure on the part of the Mandatory could, in practice, hardly arise
from a bona fide misinterpretation of the Mandate. It is consequently
difficult to imagine a case where a purported exercise of discretion by
the Mandatory could contravene Article 2 (2) unless some element of
bad faith were present. However, be that as it may, it seems clear that
if the Mandatory as a fact attempts to achieve the prescribed result, its
conduct could not be illegal merely because a particular method selected
by it in the exercise of its discretion is not successful, or not as successful
as another would have been. Of course, failure to adapt or discontinue
an unsuccessful policy might well be some evidence of failure to exercise
a proper discretion, but that is another matter.

(h) An improper purpose or motive may be proved in a number of
ways, such as by direct statements of the person concerned. However,
a more frequent source of proof is circumstantial evidence, including the
nature of the act itself. If an act is so unreasonable that no reasonable
person placed in the position of the holder of the power would have
performed it, one may deduce that such act was motivated by some im-
proper motive or consideration. Of course, such a conclusion can only
be arrived at after considering all relevant facts including the purported
purposes and effects of the act in question.

In a simple case the actual effect of a measure may constitute sufficient
proof of an improper purpose. In the present case, however, the purposes
to be achieved are the promotion of the material and moral well-being
and social progress of peoples consisting of various ethnic groups
differing widely in many important respects, and the methods adopted by
the Mandatory were varied and complex. In these circumstances there is
no practical method of determining whether or not the prescribed
purposes have been achieved over any given period.

(7) Where a measure is part of an inter-related group of measures,
such measure should obviously not be considered in vacuo but with
due regard to its context. This context is affected, in the present case,
by the circumstance that South West Africa was expected by the authors
of the Mandate to be administered as an integral portion of South
Africa. Consequently any appraisal of a measure applying to South
West Africa must have regard to the over-all realities and exigencies
of a largely integrated economy and administration.

(j) In the above discussion I considered various possible cases which
an applicant might seek to institute under Article 2 (2) of the Mandate.
I distinguished between the instances where the Mandatory is sought to

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be called to task for failing to achieve the result of promoting well-
being and progress, and where the allegation is that it is not properly
exercising a discretion to pursue the objective of well-being and progress.
1 concluded that, if the Court could have dealt with the matter at all, the
latter case was the only one which could possibly be brought. I would
also add that this indeed appears to have been the type of case set out in
the Memorials, viz., one based on allegations that Respondent had
deliberately misused its powers for the purpose of oppression.

One further possible case under Article 2 (2) still remains—an applicant
could conceivably adopt the attitude that the concept of promotion
of well-being and progress had been authoritatively defined in one or more
respects in a manner binding on Respondent and on the Court.

20. As now worded, the final submissions restrict the issues to a case
falling within the last-mentioned category. Thus Applicants contend
that conduct contrary to their norm and standards is, by a legal fiction,
to be deemed incapable of promoting well-being and progress. Applicants
have indeed rendered it clear that they do not rely on any of the other
conceivable causes of action mentioned above. There is no allegation
of omission, i.e., of a failure to exercise powers. This was emphasized by
Applicants’ Agent who repeatedly stated that the Applicants’ case was
not based on complaints that too few houses, schools, hospitals, irrigation
schemes, roads, etc., were built. Furthermore, the final submissions
as now worded do not allege improper purposes, wilful oppression,
arbitrary or unreasonable conduct, or unfair discrimination, nor do they
allege that Respondent’s policies in fact failed to promote the material
and moral well-being or social progress of the inhabitants. Applicants’
Agent repeatedly stated that these were not the issues submitted to this
Court, that the dispute between the Parties was a legal one, which did
not require the Court to investigate either the Respondent’s purposes,
motives, state of mind or the effects of its policies. The Court was not
asked to weigh the beneficial effect of a measure against the hardships
imposed by that or another measure. Such references as were made in
the Applications and the original submissions to improper purposes
and harmful effects of Respondent’s policies were later deliberately
omitted. Similarly such references as were made in the original sub-
missions to unreasonable, unjust and arbitrary conduct, deliberate
oppression, etc., were intentionally deleted from the final submissions.
If regard is had to the history of the matter, particularly the oral pro-
ceedings, and Applicants’ apparent desire to avoid at all costs an exami-
nation of the facts by this Court, the reason for these amendments
becomes clear. In any event, the numerous statements by the Applicants’
Agent, and particularly his explanations in reply to questions by members
of the Court at about the time the amendments were made, leave no room
for any doubt that the Applicants did not intend to raise, in their final
submissions, any issue relating to breaches of Article 2 (2) on the grounds

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of alleged unreasonable, arbitrary or unfair conduct, deliberate oppres-
sion, mala fides or any other improper purposes or unsatisfactory results.
The submissions were therefore subjectively intended to include no more
than their clear and unambiguous language conveys, i.e., that this Court
should hold that a policy which allots rights, burdens, status, privileges
and duties on the basis of membership in a group, class or race, rather
than on the basis of individual merit, capacity or potential, is illegal in
terms of Article 2 (2) of the Mandate.

21. The effect of the submissions, read together with Applicants’
formal definitions and explanations, is consequently that the norm
and standards upon which the Applicants rely are contended to be
absolute rules of law in terms of which measures which distinguish
in the manner described are per se invalid, no matter what the facts
and circumstances may be. Such policies of differentiation (1.e., dis-
crimination or separation as defined) are in Applicants’ Agent’s own
words “‘impermissible . . . at all times, under all circumstances, and in all
places”. The alleged norm and standards apply, according to Applicants’
Agent, irrespective of whether or not the policies in question in fact
promote the progress and well-being of the population as a whole. For
this reason he contended that no evidence relative to purpose, motive,
effect, etc., would be relevant or admissible.

22. Respondent has never disputed that its policies do in important
respects allot rights, duties, etc., on the basis of membership in the
various ethnic groups in the Territory, and has indeed contended that
the circumstances in the Territory are such as to render such policies
desirable if not inevitable. Nothing need now be said about the merits
of Respondent’s policies. For present purposes it is important to note
only that if the norm or standard as defined at page 274 of the Reply
did exist and were applicable to South West Africa, at least a substantial
number of Respondent’s measures or policies would be in conflict
therewith. The effect of this is that the issue before the Court, which
is presented as being whether Respondent’s policies violated Article 2 (2)
of the Mandate, in reality turns only on whether Respondent is bound
to conform to the alleged norm or standards in its administration of
the Territory.

23. The phrase “in the light of applicable international standards
or international legal norm” in Submission No. 4 is not part of the
argumentation of the case. It was inserted with the deliberate object of

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modifying and pin-pointing the issue, and constitutes an integral and
vital part of the definition of the dispute submitted to this Court. In
Applicants’ Agent’s own words it constitutes the “heart and core” of
Applicants’ case, on which they stand or fall.

The Court's Jurisdiction Relative to the Amended Submissions 3 and 4

24. I have now paved the way to demonstrate further reasons for
dismissing Submissions 3 and 4.

25. As demonstrated above, the dispute embraced in the final sub-
missions relates solely to the question whether or not a norm and/or
standards of non-discrimination or non-separation exist and are appli-
cable to the Mandate. As I have already noted, this issue was first raised
during the Reply, and was elevated to the position of the sole issue some
time after the commencement of the oral proceedings. No averment
has ever been made by Applicants that this issue was at any time the
subject of negotiation between the Parties prior to institution of pro-
ceedings, or that it could not be settled by negotiation. Indeed, the
record creates the impression that Applicants themselves did not at
any stage prior to the preparation of the Reply contemplate the possi-
bility of the existence of such a norm and/or standards—an impression
which is strengthened, not only by the fact that the norm was evidently
raised in the Reply in an attempt to escape the factual enquiry necessary
for a determination of the dispute originally raised, but also by the
consideration that among the alleged sources of the norm are found a
number of instruments which came about after the institution of these
proceedings. (Vide, e.g., some of the United Nations resolutions quoted
in the Reply at p. 284; the Draft Covenant on Civil and Political Rights,
quoted in the Reply, pp. 285-286; the Draft Covenant on Economic,
Social and Cultural Rights, quoted in the Reply, p. 286; the United
Nations Declaration on the Elimination of All Forms of Racial Dis-
crimination, quoted in the Reply at pp. 286-288 and the Draft Inter-
national Convention on the Elimination of All Forms of Racial Dis-
crimination, quoted in the Reply, pp. 288-289.) ‘Alternatively, if we
assume that Applicants had at an early stage, e.g., when filing the Appli-
cations in commencement of this action, considered the possibility of
basing a claim on the alleged existence of the norm or standards, they
refrained from setting out such a claim in the Memorials in the manner
required by Article 42 of the Rules of Court, and thereby prevented
the jurisdictional questions pertaining to such a claim from being
raised and considered at the preliminary objections stage. In either
event it is clear that the dispute has not been shown to be one which,
in the words of Article 7 (2) of the Mandate, “cannot be settled by
negotiation”. Consequently, for this reason also, the Court in my view
has no jurisdiction to consider the issues raised by Submissions 3
and 4,

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26. I now turn to a further jurisdictional question which arises in
regard to this part of the case. Article 7 (2) limits the Court’s jurisdiction
to disputes “relating to the interpretation or the application of the
provisions of the Mandate’’. Jt would consequently not be enough for
Applicants to show that the alleged norm or standards exist, and are
binding on Respondent. Before the Court could make any order it
would have to be satisfied in addition that the norm or standards have
some bearing on the provisions of the Mandate. It may be helpful
therefore to consider whether any rule having the content of Applicants’
alleged norm or standard can at all be read into the Mandate. In this
regard J wish to mention the following considerations:

(a) If it was intended that differentiation on the basis of membership
of a group, class or race should be prohibited, express language
to that effect would have been used in the Mandate. ~

(6) The very contrary is the position—the Mandate expressly authorized
differentiation on the said basis in the provisions relating to military
training and the supply of intoxicating spirits and beverages.

(c) The Mandate furthermore authorized the application of Respon-
dent’s existing laws to the Territory. It was generally known at
the time that policies of differentiation were applied in the Union
of South Africa, substantially similar to those employed in the
Territory.

(d) Policies of differentiation were being applied when the Mandate
came into force in comparable territories by several of the more
important members of the League.

(e) The conduct of all the parties to the Mandate at all material times
reveals that there was general acquiescence in the policy of differ-
entiation.

(i) Practically all the specific policies objected to in the Memorials
were applied in South West Africa during the lifetime of the
League. Many of these policies were expressly approved by
the League organs. At no time was any objection made on
the grounds of a norm or standards as now contended for
by the Applicants.

(ii) Policies of differentiation (many of them similar to those
applied by the Respondent) were applied throughout the lifetime
of the League by other mandatories. No objection was raised
on the grounds now advanced by the Applicants.

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(f) As will be shown, the undisputed statements in Respondent’s
pleadings and the uncontradicted evidence of the expert witnesses
strongly support the policy of differentiation: these witnesses ail
agree that, if the alleged norm or standards were to be applied,
the promotion of well-being and social progress would not be
advanced. This underlines the unlikelihood that the Mandate
would at its inception have included such implied provisions, and
shows that the subsequent incorporation thereof into the Mandate
would have constituted a material amendment thereto.

27. It has not been, and in my view could not be, suggested that the
Mandate has been amended to include the norm or standards relied
upon by Applicants. It is clear that no amendment could have been
effected without the consent of the Respondent, and it is common cause
that Respondent has always vigorously resisted the imposition upon
it of any rule of the sort relied upon by Applicants. It follows, therefore,
that even if the alleged norm or standards were to exist, this Court
would have no jurisdiction to consider alleged violations thereof, in-
asmuch as they do not constitute provisions of the Mandate.

28. In attempting to establish jurisdiction, Applicants contended,
firstly, that the alleged standards were binding on Respondent by
reason of an implied agreement in the Mandate itself, in terms of which
the Mandatory was bound to submit to standards laid down by the
supervisory authority. This contention, if accepted, would partly solve
Applicants’ jurisdictional problems, but, for reasons to be dealt with
later, it is in my view completely unsound.

29. As regards their norm contention, Applicants argued that Re-
spondent was under an obligation in terms of the Mandate to govern
in accordance with law, and that consequently any legal norm binding
upon Respondent as the administering authority in respect of South
West Africa would be enforceable under Article 7 (2) of the Mandate.

The argument rests on fallacy. The Mandate carried within itself
no obligations other than those expressly or impliedly falling within its
terms. Any other legal norms, rules or obligations that might be binding
upon Respondent, as the governing authority in respect of South West
Africa, would be so binding because of the particular considerations
from which their binding legal force was derived, and not by reason
of any provision, express or implied, of the Mandate. Such norms,
rules or obligations might conceivably be derived from municipal
law, customary international law, or treaty, and a violation of such a
norm, rule or obligation would be unlawful not because of the provisions
of the Mandate, but because of the relevant municipal law, international
customary law or treaty. The point seems so axiomatic as hardly to

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warrant discussion. If, for example, a ship belonging to a foreign govern-
ment were to be damaged in a South West African harbour, and a
dispute should arise in regard to possible liability on the part of Re-
spondent as the harbour authority, such a dispute could surely not be
said to relate to the interpretation or application of the provisions
of the Mandate. The same would apply to a dispute arising under,
say, a commercial treaty between Respondent, as governing authority
for South West Africa, and another State or States. It should be remem-
bered that such a treaty could quite conceivably have been entered
into with a State or States that were not parties to the Mandate—e.g.,
the United States of America, which never became a member of the
League. Even as regards disputes between Respondent and another
member of the League of Nations, Article 7 (2) clearly envisaged a
distinction between those disputes concerning the provisions of the
Mandate and those concerning some other norm, rule or obligation.
If this were not so, the words “relating to the interpretation or applica-
tion of the provisions of the Mandate’ in Article 7 (2) would have
been redundant and meaningless. Those words were clearly intended
to have a limiting effect on the disputes which would be justiciable
under Article 7 (2). And if Applicants’ contention were correct, they
would have no limiting effect at all, and should be regarded as pro non
scripto.

Consequently it is evident that no rule or obligation could be justi-.
ciable under Article 7 (2) unless it was specifically rendered a provision
of the Mandate, either by the legal processes whereby the Mandate
came into existence or by legal processes of amendment of the Mandate.

30. In a final attempt to establish jurisdiction, Applicants relied on
the League resolution of 18 April 1946 as rendering Chapters XI, XII
and XIII of the United Nations Charter relevant to the interpretation
of the Mandate. This contention also bears on the merits of Applicants’
case, and can be deait with more conveniently at a later stage. At present
it will suffice to say that none of Applicants’ arguments have convinced
me that this Court has jurisdiction to determine the issue raised by the
reformulated Submissions 3 and 4, and for this reason alone I think
these Submissions should be dismissed.

31. I do not wish to rest my opinion on these jurisdictional points
only. I shall consequently now turn to an examination of the sources
suggested for the norm and standards in order to determine their validity
or otherwise.

At the commencement it might be convenient to clarify a matter of
terminology. I pointed out earlier that in Applicants’ usage of the
terms, the norm and the standards were legally enforceable rules both

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possessing an identical content, i.e., as defined at page 274 of the Reply !.

The sole difference between the two concepts was that standards were

said to be binding only on Respondent as Mandatory, whereas the norm

was said to be binding on all States, including Respondent in its capacity

as a sovereign State. Bearing in mind the suggested distinction between

the two types of rules, I now turn to the sources alleged to have given
rise to them.

The Sources of the Standards

32. I shall deal with the alleged sources of the standards first, and there-
after with the alleged sources of the norm, including sources which
are said to be common to both the standards and the norm.

33. The Applicants contended firstly that the Mandate provides by
implication that the organized international community in general, and
the competent supervisory organ referred to in Article 6 of the Mandate
Declaration in particular, were empowered to enact legal rules relative
to the administration of the Territory (called “standards” by the Ap-
plicants) to which the Respondent was obliged to give effect. Secondly,
the Applicants contended that, inasmuch as the Respondent was a
Member of the United Nations Organization and the International
Labour Organisation, it was not only bound by the constitutions of
these institutions but also by “the authoritative interpretation thereof”
by the organs of these institutions, and that, therefore, the provisions
of the constitutions of these institutions, thus interpreted, constituted
standards binding on the Respondent in its administration of South
West Africa. The Applicants further contended that in any event the
legal effect of the League resolution of 18 April 1946, which referred
to Chapters XJ, XII and XIII of the Charter, is that the Mandate “must
be read in the light of the Charter’’.

(a) The Supervisory Authority under Article 6

34. It is of course basic to Applicants’ argument regarding the alleged
standard-creating competence of the supervisory authority that there
still exists an authority vested with supervisory powers in respect of
South West Africa as a mandated territory. In an earlier part of this
opinion I expressed the view that Article 6 of the Mandate had lapsed
on the dissolution of the League and that Respondent was no longer
subject to any duty of accountability to any authority whatsoever.
If this view is correct, it would by itself dispose of ‘Applicants’ con-

1 It is idle to turn to other definitions of standards and norms. Applicants have
given explicit definitions of the sense in which they use them. To adopt other defi-
nitions would be tantamount to changing the case the Respondent was called upon
to meet.

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tention with which I am dealing at present. The same result may, how-
ever, also be reached in different ways. In this regard the question arises
whether any supervisory authority in respect of Mandates ever possessed
competence to impose binding rules of conduct upon the Mandatory.
To this enquiry I now turn.

(i) The Council of the League

35. I shall commence by first considering whether the supervisory
organ referred to in Article 6 of the Mandate itself was clothed with
competence to establish such legal rules. (it would appear that if the
specific supervisory authority was not assigned such competence, the
whole basis of the Applicants’ further submission relative to the com-
petence of the organized international community in general also col-
lapses.)

What strikes one forcibly when examining the provisions of the Cove-
nant and the mandate instrument, is that no express provision in support
of Applicants’ contentions is to be found therein. If it was indeed the
intention of the authors of these instruments that the League Council
would have the legislative powers now contended for by the Applicants
they would have said so in clear and unmistakable terms. In those ex-
ceptional cases where a decision of the Council had a law-creating effect,
1.e., could bind members of the League who had not assented thereto,
explicit language was used. See, e.g., Articles 5 and 15 of the Covenant.
In addition, all decisions relative to mandate administration required
unanimity, and if indeed, as assumed by the Court in 1962, the Mandatory
was given the right to vote where its Mandate was concerned (a matter
to which I alluded above), no unanimity could be obtained without its
co-operation. It follows that the Mandatory would then not have
been bound by any resolutions not acceptable to it.

36. Be that as it may, an examination of the scheme set out in Article 22
of the Covenant by itself reveals the untenability of Applicants’ conten-
tions. Paragraph 2 states in terms that the “best method” of giving prac-
tical effect to the principle that the well-being and development of the
peoples of the territories concerned form a sacred trust of civilization,
is that the tutelage of such peoples should be entrusted to advanced
nations, who by reason of their resources, their experience, or their
geographical position could best undertake this responsibility. This
tutelage was entrusted to certain countries as mandatories on behalf
of the League: it was not entrusted to the League. The tutelage became
the responsibility of the mandatory. In the case of South West Africa,
paragraph 6 of Article 22 provided in express terms that it “can best be
administered under the laws of the Mandatory as integral portions
of its territory”. The only qualification of this wide statement was that
such administration was to be subject to the safeguards mentioned in
the interests of the indigenous population, i.e., provisions relating to

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freedom of conscience and religion, the slave trade, arms traffic, liquor
traffic, military training of Natives, etc. If it was intended that the Coun-
cil of the League could without the Respondent’s concurrence prescribe
the standards upon which the legislative measures applicable to the
Territory should be based, the Respondent’s legislative and administra-
tive powers would hardly have been expressed in such wide and unquali-
fied terms.

37. This conclusion is confirmed by the events which took place
before and during the drafting of the Covenant. Earlier proposals that
the League itself should be vested with complete authority and control
and that it should be entitled to govern the territories which eventually
became mandated territories by delegating its powers to States or ‘‘or-
ganized agencies”, were abandoned, and the final outcome was that
the League’s functions were to be limited to examining the mandatories’
annual reports with a view to ascertaining whether they had performed
their duties, and to assist and advise them. No right or duty was conferred
upon the League to prescribe from time to time standards binding upon
the mandatories in general, or upon any particular mandatory.

The supervisory powers of the Council were accordingly stated in
the following terms in Article 22, paragraph 7, of the Covenant: “In
every case of Mandate, the Mandatory shall render to the Council
an annual report in reference to the territory committed to its charge.”
This can clearly not be read as providing that the Council was empowered
to lay down legislatively (i.e., without the mandatory’s consent) standards
binding on the mandatory. It is true that, in terms of paragraph 8 of
Article 22, the Council was authorized to define the degree of authority,
control or administration to be exercised by the mandatory. But this
power is not relevant to the present discussion since it was obviously
intended to be exercised only once, i.e., for the purposes of framing the
mandate instruments. That this is so, appears not only from the pro-
visions in paragraph 8, which made the Council’s function in this respect
dependent on whether or not such degree of authority, etc., had not
previously been agreed upon by the members of the League, but also
from the mandate declarations themselves which in effect provided
that the mandates would not be amended without the consent of the
mandatory and the Council. Paragraph 9 of Article 22 provided for
the creation of a “permanent Commission” which was to advise the
Council on all matters relating to the “observance” of the mandates.
If it was intended that the Council would have legislative powers in
respect of the mandates, the functions of this expert commission would
not have been confined to advising on the “observance” of the mandates,
but would also have related to the enactment and amendment of standards
from time to time.

38. An examination of the provisions of the Mandate Declaration
leads to the same conclusion. This Declaration could not amend Arti-
cle 22 of the Covenant, and must therefore always be read subject thereto.

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Full power of legislation and administration, subject only to the pro-
visions of the Mandate, was granted to the Respondent. No such power
was vested in the Council of the League. The obligation to promote
well-being and progress to the best of its ability, having regard to the
resources available to it, was imposed on the Mandatory; and the Man-
date provided that the Mandatory would have the discretionary powers
required for the effective discharge of such an obligation. These powers
were in no way fettered by an obligation to comply with standards
imposed by the organs of the League.

Tt will be recalled. that the Mandate was issued as a formal act of
the League Council. If the Council had thought that it could lawfully
prescribe standards from time to time it would not have been necessary
to include the provisions of Articles 3 to 5 in the Mandate. The Council
could then, if it so desired, have prescribed these provisions as standards,
which it could have amended, repealed or added to from time to time
without the Mandatory’s consent.

39. The Hymans report—it was issued even prior to the completion
of the Mandate Declarations—in dealing with the obligations falling
upon the League of Nations under the terms of Article 22 of the Cove-
nant, made no reference to a contemplation that the supervisory organs
of the League would lay down binding standards of government upon
the mandatories. On the contrary it stated, inter alia, that “the Mandatory
will enjoy in my judgment a full exercise of sovereignty in so far as
such exercise is consistent with the carrying out of the obligations in
paragraphs 5 and 6”. Under a section headed “The extent of the League
right of control”, one also finds no reference to this alleged legislative
power. On the contrary it was emphasized that the Council’s power
was limited to ascertaining whether the mandatory had remained within
the limits of its powers under Article 22 of the Covenant and the Mandate
Declaration, and whether good use had been made of such powers.

40. The conclusion that the Council possessed no competence to lay
down binding standards is confirmed by an examination of the view
which the League organs themselves took of their powers. At no time
did they claim the power to lay down general rules in the nature of the
standards contended for by the Applicants. On the contrary, the generally
accepted view of their functions was that they consisted of co-operation
with the mandatories and of determining how far the principles of the
Covenant and the mandates had been truly applied. See Quincy Wright,
Mandates Under the League of Nations, 1930, page 197. Bentwich, page
116, states:

“The Commission... has been at pains to make it clear that
it is not concerned itself, and that the Council of the League is
not concerned, with the administration of the Mandated territory,
which is the exclusive function of the Mandatory power.”

4]. For the above reasons, I find that the Council had no power to
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lay down binding standards for the administration of the mandates,

(ii) The Permanent Mandates Commission

42. I now proceed to examine a specific contention of the Applicants,
namely that the Permanent Mandates Commission had established
certain standards which are binding on the Respondent. They allege
that these standards are reflected in pronouncements of general principles
or were “developed through continuous application of general criteria
to concrete factual situations”. The truth is that the Mandates Com-
mission had no legislative powers. Indeed, it possessed no independent
powers at all. Its function was limited to advising the Council. It is true
that an interpretation of the mandate by the Permanent Mandates
Commission which was accepted by the Council became a precedent
to which a prudent mandatory would have had due regard; but this
is something quite different from saying that such a precedent became
binding law which had to be applied by each and every mandatory,
irrespective of its particular circumstances.

The nature of the twofold task of the Commission was contrasted
by Quincy Wright as follows:

“In supervising the mandates the Commission has felt obliged
to limit its criticism by law. It does not censure the mandatory
unless the latter’s orders or their application are in definite conflict
with the mandate or other authoritative text, but if such a conflict
is reported by the Commission and the report is adopted by the
Council the mandatory is bound to recognize it. It becomes an
authoritative interpretation of the latter’s obligations ...

In co-operating with the mandatories, however, though the
League’s powers are more limited, the scope of its suggestions is
infinitely wider. It has not considered itself limited by authoritative
documents but has formulated standards of good administration
from the widest sources, and suggested whatever practical steps
it deems expedient to give them effect. Such suggestions, how-
ever, even when endorsed by the Council, never have more than
the character of advice. The Mandatory is free to differ from them
though if based on an adequate understanding of the situation he
will do well to consider them.”

It is true that the Commission laid down certain standards for its
own guidance but these standards were standards in the ordinary sense
of the word—not standards in the sense of legal rules. Quincy Wright
states at page 220:

“The Commission has found it necessary to establish certain
standards for its own use on full realisation that these are in no
sense binding but subject to modification by experience.”

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In any event, although the Mandates Commission on one occasion,
and individual members thereof on a few occasions, appeared to have
been critical of certain aspects of some of the Respondent’s policies of
differentiation, the over-all impression gained from a detailed study of
the Mandatory’s and the Commission’s reports is not only that the general
principles of the Respondent’s policies were not objected to by the Com-
mission, but that in basic and important respects they were actually
approved of. However, the point that I wish to stress at the moment is
that neither the Mandates Commission nor the Council of the League
ever attempted to lay down any standards which purported to constitute
legal rules binding on the mandatories. No doubt they would have been
extremely surprised to hear it suggested that they possessed such powers.

© (iii) The General Assembly of the United Nations

43. If the League organs could not lay down standards in the sense
contended for by the Applicants, it follows that, even if the General
Assembly of the United Nations has been substituted for those organs,
it similarly has no such power. Indeed, as far as I am aware, it has never
been suggested that the United Nations possesses wider powers in re-
spect of the Mandate for South West Africa than those formerly held
by the organs of the League.

Thus this Court in 1950 expressed the opinion that the United Nations
had supervisory powers under the Mandate relative to the Respondent’s
administration of South West Africa, but held that the degree of super-
vision should not exceed that which applied under the mandates system,
and should conform as far as possibie to the procedure followed in this
respect by the Council of the League of Nations. This was interpreted
in 1955 by this Court (p. 72) “to relate to substantive supervision”,
and “to the measure and means of supervision”, and meant that “the
General Assembly should not adopt such methods of supervision or
impose such conditions... as are inconsistent with the terms of the
Mandate or with a proper degree of supervision measured by the stan-
dards and the methods applied by the Council of the League”.

At page 74 of the 1955 Opinion it was repeated that the 1950 Opinion
“must be interpreted as relating to substantive matters”.

In 1956, in his separate opinion, Judge Winiarski said: “I believe
that the maintenance of the previously existing situation constitutes the
dominant theme of the Opinion and that the decisive test is to be found
in what was formerly done” (p. 33).

Judge Klaestad in his separate opinion in 1955, at pages 87 and 88,
stated expressly that decisions of the United Nations organs concerning
reports and petitions relating to South West Africa have no binding
force. It should be borne in mind that this statement was made on the
assumption that the United Nations had succeeded to the powers of

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the League relative to the Mandate. It also appears from the Opinion
of the Court in 1955 that, on its view of the 1950 Opinion, the authority
of the General Assembly to take decisions in respect of reports and
petitions concerning South West Africa was derived from Article 10
of the Charter. This section authorizes the General Assembly to make
recommendations and nothing more.

44. It is also significant that no legislative powers were given to the
supervisory organs of the United Nations in respect of trust territories.
See Kelson, Law of the United Nations, page 630. This also appears from
Judge Lauterpacht’s separate opinion in 1955, page 116.

Several examples are given in the aforesaid Opinion of States ad-
ministering trust territories who asserted their right not to accept re-
commendations of the General Assembly or of the Trusteeship Council.
It seems unlikely that the authors of the Charter would have granted
lesser powers to the United Nations relative to trusteeship territories
than had been held by the League relative to mandates—or that in the
case of the one mandate not converted to trusteeship the United Nations
should have greater powers than in respect of trusteeships.

(b) The Charter of the United Nations and the Constitution of the
International Labour Organisation

45. The next contention to be considered is to the effect that by
becoming a Member of the United Nations Organization and the
International Labour Organisation, the Respondent as Mandatory be-
came bound to give effect to the standards embodied in the constitutions
of these Organizations as interpreted by their respective organs. As
regards the United Nations Charter, Applicants relied mainly on
Article 56 read with Article 55 (c). Assuming that these Articles created
legal rights and/or obligations (a matter which is not free from doubt)
it seems clear to me that they do not contain the standards relied upon
by Applicants. The combined effect of the two Articles (in respects
relevant to the present enquiry) is that Members of the Organization
pledge themselves to take joint and separate action in co-operation
with the Organization to achieve universal respect for, and observance
of, human rights and fundamental freedoms for all without distinction
as to race, sex, language or religion. It is to be noted that these Articles
deal with distinctions as to race, sex, language or religion only in one
context, viz., the context of “human rights and fundamental freedoms’’.
At the same time the Charter does. not purport to lay down or define
these rights and freedoms, and, as is well known, subsequent attempts
at drafting comprehensive and legally effective instruments for this
purpose have not proved successful. In the result the whole concept
of “human rights and fundamental freedoms” is as yet an undefined
and uncertain one with no clear content. It is not, however, necessary

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to consider this matter any further, since what is abundantly clear is
that Articles 55 (c) and 56 cannot operate beyond the field of respect
for, and observance of, “human rights and fundamental freedoms’’,
whatever such concepts might mean. The Articles do not in terms
deal with the subject of allotments of rights, burdens, privileges, etc.,
and they certainly do not, either in their wording or effect, prohibit all
such allotments on the basis of race, sex, language, religion, group or
class. That this is so, appears not only from the provisions of the Articles
themselves, but from the Charter as a whole. Thus Article 73 of the
Charter, dealing with “territories whose peoples have not yet attained
a full measure of self-government”, prescribes “due respect for the
cultures of the peoples concerned” and that “due account should be
taken of the political aspirations of the peoples’? and that they should
be assisted in the development of their “free political institutions accord-
ing to the particular circumstances of each Territory and its peoples and
its varying stages of advancement”. Article 55 must be read with due
regard to the provisions of Article 73 referred to above, and can ac-
cordiagly not be interpreted to mean that a governing authority is
prohibited from having regard to the political aspirations of different
peoples inhabiting parts of the same territory, or to their varying stages
of advancement, in selecting the criteria or measures to be adopted in
promoting their well-being and social progress. On the contrary, Article 55
itself incorporates the principle of “‘self-determination of peoples” as
one of its main objects.

46. Much the same situation exists with regard to the Constitution
of the Taternational Labour Organisation. The provision there relied
upon (C.R. 65/34 at p. 57) was the following passage from the Declaration
of Philadelphia which read:

‘... all human beings, irrespective of race, creed or sex, have
the right to pursue both their material well-being and their spiritual
development in conditions of freedom and dignity, of economic
security and equal opportunity ...”’.

Here again the wording does not support the existence of a general
prohibition of the allotment of rights, burdens, privileges, etc., on
the basis of group, class or race. And this conclusion is strengthened
by the express sanctioning of such differential allotments, at least in
certain spheres, in the following passage from the same instrument:

“The Conference affirms that the principles set forth in this
Declaration are fully applicable to all peoples everywhere and that,
while the manner of their application must be determined with
due regard to the stage of social and economic development reached
by each people, their progressive application to peoples who
are still dependent, as well as to those who have already achieved
self-government, is a matter of concern to the whole civilised
world.”

This passage clearly indicates that the Declaration of Philadelphia
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did not purport to establish, and cannot even be reconciled with a
standard of the content relied upon by Applicants.

47. Possibly because they realized that the wording of these instru-
ments did not support their thesis, Applicants relied mainly upon
so-called “interpretations” of the instruments by the organs of the
respective organizations. This was so particularly with reference to
the United Nations Charter. Since the whole question of the weight
and effect of resolutions and reports of agencies and organs of the
United Nations has a wider relevance than purely with reference to
so-called standards, it might be better to postpone a fuller discussion
thereof to a later stage. At the present juncture [ shall consequently
confine myself to one aspect, viz., that no such resolution or report
could lawfully add to or subtract from the meaning of the Charter in
such a way as to bind the Court, which must necessarily give its own
interpretation of any texts relevant to its judgment. Indeed, in the
case of the International Labour Organisation Constitution this principle
was expressly laid down in the following words of Article 37:

“Any question or dispute relating to the interpretation of this
Part of the present treaty or of any subsequent convention concluded
by the Members in pursuance of the provisions of this part of the
present treaty shall be referred for decision to the Permanent Court
of International Justice.”

48. It is necessary to revert briefly at this stage to a matter already
dealt with, viz., the jurisdiction of the Court to entertain disputes
regarding alleged violations of the standards and/or norm. I expressed
the view earlier in this Opinion that the Court would have no such
jurisdiction inasmuch as such as dispute would not be one “relating to
the interpretation or the application of the provisions of the Mandate”.

It will be recalled that Applicants sought to overcome their difficuities
in this regard, inter alia, by arguing that the Mandate itself contained
an implied provision empowering the supervisory authority to lay down
standards binding upon the Mandatory. I have given my reasons for
regarding this contention as untenable, but even if it were sound, it
provides no basis upon which alleged violations of the Constitution
of the International Labour Organisation or of pronouncements of
its organs could become justiciable in terms of Article 7 (2) of. the
Mandate. It surely cannot be said that the International Labour Or-
ganisation is in any sense a supervisory authority in respect of mandates.

49. It may also be convenient at this stage to deal with the merits
of a further contention advanced by the Applicants which relates mainly
to the question of jurisdiction, to which reference was made earlier
in this Opinion. The contention is that the provisions of the Charter
referred to in the League resolution on 18 April 1946 must, by reason
of such reference, be regarded as being in pari materia with Article 2

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of the Mandate, and consequently relevant to its interpretation. Now
as regards interpretation stricto sensu, i.e., the ascertainment of the
meaning of a document, this contention is clearly untenable. I cannot
see how the United Nations Charter, executed in 1945, could throw
any light on the intentions of the authors of the Mandate, a document
executed in 1920. What is possible, of course, is that the parties in
1946 could have agreed to attach a particular meaning to the earlier
document, irrespective of what the intentions of the parties to such
an earlier document might have been. It is clear, however, that the
aforesaid resolution embodied no such agreement. It did no more than
to note that Chapters XI, XII and XIII of the Charter embodied “‘prin-
ciples”” ‘‘corresponding”’ to those declared in Article 22 of the Covenant.
It did not purport to attach an agreed meaning to the mandates, and,
indeed, it could hardly do so with the blanket reference to Chapters XI,
XII and XIII—Chapters which deal with classes of territories differing
among themselves and from the mandated territories.

In passing it may be noted that this resolution, even if relevant in the
sense contended for by Applicants, cannot serve to render applicable
Articles 55 and 56 of the Charter, since these Articles are found in
Chapter IX of the Charter, and not in Chapters XI, XII or XIII, which
were the Chapters referred to in the resolution.

The Sources of the Alleged Norm

50. I now proceed to consider the Applicants’ submission that the
rule of non-discrimination or non-separation had ripened into a legal
norm binding even upon sovereign States. I have already expressed
my view that, even if such a norm were to have been created, this Court
would not possess jurisdiction to determine disputes as to its observance.
However, it may be as well also to consider the merits of Applicants’
contentions in this regard.

Applicants contended that the norm had its origin in each or all
of the sources of international law enumerated in Article 38 (1) of the
Statute of this Court. I propose dealing with the various paragraphs
of the Article in turn.

(a) Article 38 (1) (a)

51. The contention is that this paragraph, which authorizes this Court
to apply international conventions, whether general or particular,
establishing rules expressly recognized by the contesting States, has
relevance, inasmuch as “‘the provisions of the United Nations Charter
and the Constitution of the International Labour Organisation as
interpreted by these organizations respectively bind the Respondent”.

In essence, therefore, the argument is the same as dealt with above
in regard to standards. There I expressed the view, which is equally
applicable in the present context, that the instruments concerned cannot

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be interpreted to lay down the rule relied upon by Applicants, that the
organs of the organizations do not have the power to lay down such
a rule by way of “interpretation”, and that in any event, this Court
has no jurisdiction to determine disputes arising from alleged violations
of these instruments.

At the later stage I will deal somewhat more fully with United Nations
resolutions and reports and will give my reasons for concluding that
these pronouncements in fact did not even purport to lay down rules
or standards of the content relied upon by the Applicants.

(b) Article 38 (1) (b)

52. The next contention relies on the provisions of Article 38 (1) (b)
and is to the effect that through the collective processes of the organized
international community, including mainly the resolutions of the
United Nations relative to discrimination, and particularly those con-
demning the policies pursued by the Respondent in South West Africa
and in the Republic of South Africa, there has arisen a norm of customary
international law of the content contended for by Applicants. In this
connection Applicants did not contend that they could satisfy the
traditional tests applied by this Court in determining the existence or
otherwise of “international custom, as evidence of a general practice
accepted as law”; and indeed, it is clear that they could not. Applicants
did not even attempt to show any practice by States in accordance with
the alleged norm, but relied on statements of States relating, not to the
practice of those or other States, but to criticism of the Respondent’s
policies. More attention will be given to this topic later, but at present
I would like to mention that Applicants did not even seek to show that
such criticism was in some way related to the creation, or existence,
of a norm with a content as relied upon by them.

Indeed, the evidence before the Court, with which I shall deal later,
showed that the alleged norm played no role at all in the United Nations
activities relied upon.

53. Evidence as to actual State practice in regard to differential
allotments of rights, privileges, burdens, etc., was indeed presented
to the Court, but by the Respondent. In this regard reference may be
made particularly to Professor Possony, who, after a long and careful
survey of official measures and methods throughout the world, con-
cluded:

“Mr. President, from what I have indicated to the Court with
relation to the practice all over the world, there is no general
observance of such a rule or norm.”

Professor Possony’s review and conclusion were not challenged and
certainly not in the least shaken in cross-examination.

54. As I have said, Applicants did not seek to apply the traditional
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rules regarding the generation of customary law. On the contrary
Applicants’ contention involved the novel proposition that the organs
of the United Nations possessed some sort of legislative competence
whereby they could bind a dissenting minority. It is clear from the
provisions of the Charter that no such competence exists, and in my
view it would be entirely wrong to import it under the guise of a novel
and untenable interpretation of Article 38 (1) (6) of the Statute of
this Court.

55. In an alternative contention the Applicants suggested that even
if the Respondent’s opposition to the attempted imposition of a norm
may prevent the norm being binding on the Respondent as a sovereign
State, such opposition has no relevance to applicability of the norm
to South West Africa. This contention is in my view devoid of substance.
The authorities are agreed that no treaty can apply to South West
Africa without the Respondent’s consent, and it follows that since
acquiescence is a prerequisite to the creation of a new norm, it is the
Respondent’s acquiescence that is required in so far as South West
Africa is concerned.

(c) Article 38 (1) (c)

56. The Applicants next invoked the provisions of Article 38 (1) (c)
to justify their alleged norm, which they contended should be distilled
from the general principles of law recognized by civilized nations.
The first fallacy in this contention is that this subsection does not
authorize the application of the laws of civilized nations, it limits the
Court to “the general principles of law’’ of these nations. It certainly
does not mean that by legislating on particular domestic matters a
majority of civilized nations could compel a minority to introduce
similar legislation. If, for example, every State but one were to enact
a law prohibiting the manufacture of atomic weapons, or enforcing
the enfranchisement of women, the remaining State would not be
obliged to bring its laws into conformity with the rest. In any event,
the evidence of Professor Possony, Professor van den Haag and Professor
Manning proves that such a rule is not universally observed, and that
laws and official practices to the contrary exist in a large number of
States, including the Applicants’. The fact that neither of the Applicant
States observes this alleged norm or standards in their respective coun-
tries indeed reveals the artificiality of their cases.

(d) Article 38 (1) (d)

57. Although the Applicants also purported to rely on the provisions
of Article 38 (1) (d) as a source of their norm, they did not refer to a
single judgment, opinion or author confirming the existence thereof.

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Reports and Resolutions of United Nations Organs and Agencies

58. Since the first introduction of the alleged norm of non-discri-
mination or non-separation in the Reply, Applicants have relied heavily
on reports and resolutions of United Nations organs and agencies.
In their final argument these pronouncements indeed constituted the
very basis of their case—they were the method whereby standards
were said to be created, and provided the raw material for the attempted
invocation of Article 38 (1) (a) and 38 (1) (8) of the Statute of the
Court as providing the sources of the norm. For the reasons I have
given, I find that these various pronouncements cannot in law create
any rules of conduct binding upon Respondent. In addition, as I have
noted, the United Nations reports and resolutions did not purport
to apply or create any norm of the content relied upon by Applicants,
I would, in concluding this part of my opinion, elaborate somewhat
on this aspect, dealing particularly with the resolutions relating specifi-
cally to South Africa and South West Africa.

59. The detailed and uncontradicted evidence placed before this Court
reveals that these resolutions were mainly the result of concerted action,
by a large number of African States, assisted by many others, designed
to bring about the immediate independence of South West Africa
as a single unit to be governed by the indigenous peoples on the basis
of universal adult franchise. Inasmuch as the Respondent’s administra-
tion stands in the way of this objective, schemes were evolved in an
attempt to have it terminated. Hence these proceedings, brought nomi-
nally by the Applicants only, but in fact by all these African States.
As part of their campaign to achieve their aforesaid objective these
States worked in close collaboration with certain so-called petitioners
from South West Africa at the United Nations.

60. These petitioners have at all times asserted that they represent
the Natives of South West Africa—assertions which were apparently
generally believed at the United Nations. The uncontradicted evidence
placed before us, however, reveals that their claims are false. Some
of the organizations which some of them allegedly represent exist on
paper only, and apart from the representatives of the Herero nation
they do not represent the majority of any one of these Native groups.
Even those who claim to represent the Herero nation do not always
correctly represent the views of those people. Thus, whereas the Herero
leaders in South West Africa apparently favour a system of regionalism
whereby the Territory is to be divided on a federal basis between certain
groups (but excluding the White group), some petitioners at the United
Nations create the impression that what is desired by these people is
that the Territory should be governed as a single unit.

A large number of petitions and statements by these petitioners,
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containing numerous false and grossly distorted allegations relative
to the Respondent’s policies and practices in South West Africa, have
been placed before the organs of the United Nations from time to
time. The cumulative picture painted by them is one of oppression
of the worst possible kind including genocide, slavery, concentration
camps; that Respondent’s policies were rooted in concepts of racial
superiority and in racial hatred and animosity; that the best lands
“were being taken from Natives and given to White farmers, the Natives
being driven to the desert or herded like animals; that education for
the Natives either did not exist or merely prepared them for slavery;
that there was large-scale militarization of the Territory and terrori-
zation of the Natives, etc. Unfortunately these falsehoods were ap-
parently accepted as true by a large number of States who voted in
favour of the resolutions condemning Respondent’s policies. Often
these alleged acts were included in the term apartheid, and it seems
clear that when Respondent’s policies of apartheid were condemned
it was in the belief that the petitions had painted a true picture. (One
need merely have regard to the hundreds of false statements in the
Applicants’ Memorials—statements proved and admitted to be false—
to appreciate the preportions of the technique that has been applied.)
These resolutions patently did not purport to condemn Respondent’s
policies merely because rights, duties, status and privileges were allotted
on the basis of membership of a group, class or race rather than on the
basis of individual merit or capacity, as is sufficiently shown by the
briefest reference to the relevant debates. It accordingly follows that
there could not have been any intention of either creating, applying or
confirming a norm or standards such as are contended for by the
Applicants. Furthermore, even if these resolutions could for any purpose
be regarded as laying down rules, their value is nil inasmuch as they
are demonstrably based on untruths and gross distortions.

61. Even the resolutions dealing with the institution of these present
proceedings against the Respondent did not mention this alleged norm
or standards. The case to be brought against the Respondent was one
of wilful oppression, and this was in truth the case originally stated
against the Respondent in the Applications and the Memorials. As
noted above, the case based on the breach of a norm or standards as
defined by the Applicants first made its appearance, in the Applicants’
Reply, and was embodied in the Applicants’ submissions only shortly
before their Agent closed his case. If the United Nations had intended
to create, apply or confirm such a norm or standards it seems strange
that the Members of the United Nations including Applicants were
unaware thereof at all material times.

62. For all the reasons I have set out above, it is my view that this

Court has no jurisdiction to entertain Applicants’ case as now formulated,
and that, in any event, it is unsound.

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The Effect of the Alleged Norm or Standards
Introductory

1. I now proceed to consider what effect the application of the
alleged norm or standards would have on the well-being and progress
of the inhabitants of South West Africa. If, as the Respondent contends,
the effect would be manifestly detrimental to all concerned, this would
be an additional factor militating against the proposition that compliance
with such a norm or standards forms part of Respondent’s obligations
under the Mandate.

My treatment of this subject will inevitably have to touch upon
important and indeed fundamental aspects of Respondent’s policies
originally described by Applicants as unfair, arbitrary, unjust or wilfully
oppressive, and therefore also upon certain of the items in Applicants’
so-called catalogue. In the course of the discussion some light will be
thrown on the question whether it would have been possible for Appli-
cants to substantiate their original charges, had they attempted to do so.
However, this would be merely incidental to my purpose, which is
solely to consider the probable effect of the application of the suggested
norm or standards !.

The History of the Territory and Its Peoples

2. The effect of any policies applied or suggested for application in
South West Africa cannot be appreciated without a thorough know-
ledge of the salient facts concerning the Territory, its history and its
peoples.

It is not possible to deal with these matters in detail in this opinion
but some reference to the more important facts seems unavoidable.

3. South West Africa is a vast territory of 317,727 square miles, but
in 1920 its total population was probably less than 250,000. At present
the population is just above 500,000. The Namib desert stretches along
its entire coast-line and constitutes more than 15 per cent. of the total
land area. The bulk of the rest is semi-desert and subject to severe peri-
odical droughts. Only a relatively small area in the north-eastern part
has a high rainfall. Large portions of the Territory were never occupied

1 In view of the fundamental change in Applicants’ case to which I have referred
earlier, the original charges are no longer submitted to the Court for adjudication.
It is therefore unnecessary to deal with them or to discuss systematically each
and every measure of differentiation in the light of the original charges. As a
result of Applicants’ admission of all the facts set out in Respondent’s pleadings,
it seems that the original charges would have had to fail quite obviously in respect
of Respondent’s policies as a whole, and also quite obviously in respect of a con-
siderable number of the specific measures. referred to. In the case of any specific
measures in respect of which such result might not be obvious, it would be impossible
for the Court to adjudicate on the original charges with fairness and accuracy,
inasmuch as the amendment of Applicants’ submissions had the natural result
that Respondent at the oral proceedings refrained from canvassing fully all the
questions of fact which would have been relevant for such purpose.

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by any of the indigenous groups. They had no means of sinking boreholes
or building dams, and were accordingly confined to areas where water
was naturally available. Their numbers were in any event so limited in
some parts that there was no need to occupy large areas. In the circum-
stances, coupled with the effect of ravaging internal wars during the
nineteenth and early twentieth centuries, considerable portions of the
Territory were vacant lands when the Mandate commenced.

4. At the inception of the Mandate the inhabitants of the Territory
consisted of at least nine major population groups, occupying, to a
large extent, distinct portions of the Territory, and differing widely
as to physical appearance, ethnic stock, culture, language and general
level of development. These groups (and even some sub-divisions of
these groups) have at all material times considered themselves to be,
and were generally regarded as, separate peoples or national groups.
The European or White group (mainly of German and South African
origin) was by far the most advanced. The remaining groups were all
non-White and were, with the exception of a few individuals, entirely
illiterate and primitive. Constant warfare between some of these groups
had resulted in indelible hatreds. The main non-White groups were:

(i) the Eastern Caprivi peoples;
(ii) the Okavango peoples;
(iii) the Ovambo;
(iv) the Bushmen;
(v) the Dama (also known as Bergdama or Bergdamara or Damara of
the Hills or Klipkaffir);
(vi) the Nama (also known as Khoi or Hottentots);
(vii) the Herero (also known as Cattle Damara, or Damara of the
Plains) ;
(viii) the Rehoboth Basters and the Coloured group.

Groups (iv) and (vi) are Khoisan (colour brown), No. (viii) are half-
caste groups, mainly mixture between White and non-White (light
coloured), and all the others are Negroid.

5. It is due entirely to circumstances over which they had no control
that the members of these national groups came to be the subjects of
a single mandate.

The northern areas (which were never under effective German control)
resemble four different countries, viz., the Kaokoveld, Ovamboland,
the Okavango and the curious appendage known as the Eastern Caprivi.
Each of them is inhabited, from historic times to this day, by its own
people or peoples. The peoples of the Eastern Caprivi are ethnically
related to those of Zambia and Bechuanaland. They have no ethnic
relationship with any of the other peoples of South West Africa, have

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never had anything in common with them, and are geographically
separated from them by hitherto inaccessible swamps. Ovamboland is
inhabited by a group of ethnically related tribes speaking, however, at
least two different languages and various dialects. They form 45 per
cent. of the total population of South West Africa. The Okavango and
the Kaokoveld are each inhabited by smaller groups of ethnically related
tribes. But whereas the Okavango group is ethnically linked with the
Ovambo, the Kaokoveld group forms part of the Herero people, who
immigrated from central Africa towards the end of the eighteenth
century, and are ethnically, linguistically and in their social organization
entirely distinct from all other groups or peoples in South West Africa.

6. Save for the Bushmen, who are in a sense dispersed all over the
wilds of South West Africa, the other non-White groups live in various
portions of the central and southern parts of the Territory—the parts
which were patrolled by the German police and for that reason came to
be known as the Police Zone. These groups include sections of the Herero,
who were as from about 1830 engaged in almost continual warfare
with various sections of the Nama, until the advent of German rule in
the 1880s, and even thereafter. They include also the Bergdamara, yet
another distinct Negroid group, who had arrived very early but were
subsequently enslaved by the Nama and later also by the Herero, and
who in course of time adopted the Nama language. The Rehoboth
Basters arrived in the Territory from the Cape Province in about 1870
and settled in the Rehoboth Gebiet, where they governed themselves.

Wars by which the German régime was marred, shattered the tribal
organizations and economics of the Herero and the Nama, and reduced
their numbers by 1912 to less than 20,000 and less than 15,000 respec-
tively. I refer later to efforts of the South African Government to restore
their tribal organizations and to settle them, and also the Damara, in
reserves or homelands.

7. Apart from the activities of a few explorers, missionaries, hunters,
traders, etc., the advent of the White man to South West Africa was
delayed until late in the nineteenth century.

In 1870 Walvis Bay and a small surrounding area became British
territory. It became part of the Cape Province, and as such became
part of the Union of South Africa. At present it is part of the Republic
of South Africa but is administered as part of South West Africa.

The German reign over other portions of South West Africa com-
menced in 1884 and lasted till 1915.

During this period European soldiers, farmers, technicians, miners,
traders and missionaries came to the central and southern portions of
the Territory (the Police Zone) with the result that when the Mandate
came into existence the White population was about 20,000. In 1913

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White farmers owned 134,000 square miles of land, and in addition
very large areas were held by companies owned by Whites. A modern
economy was developed by the White population, resting mainly on
diamond mining, and to some extent on livestock farming, though progress
in the latter field had been limited. An extensive railway system was
provided, which was during the First World War (after the conquest of
the Territory) joined to that of South Africa. The revenue of the Territory,
also largely dependent on the production of diamonds, was prior to
the Mandate never sufficient to pay the costs of administration.

8. It seems obvious that it must have been realized by all concerned
that in determining its policies relating to the administration of the
Territory the Respondent would have due regard to the realities of the
situation. These realities include the existence of the four distinct
northern territories and peoples. The Respondent did not create these
separate homelands, or the distinct nationalities living in them; they
were there at all material times. In regard to the Police Zone the realities
included the facts that the tribal economies of the Native peoples had
been shattered, but that the Natives, undeveloped and illiterate, lacked
the skills required for modern economic and administrative activities.
They included also the under-populated state of the Police Zone, and
the existence of the European population and the struggling modern
economy established by it. The Territory, vast, mostly undeveloped, and
poor, needed White leadership and initiative.

White immigrants were needed to maintain law and order, to manage
and administer the mines, railways, harbours, hospitals and the civil
service. Moreover, additional sources of income were desperately
needed, and at that time the only practical way in which this could be
obtained was through the introduction of more White capital, initiative
and entrepreneurial skill. In particular the skill and initiative of pro-
gressive farmers were badly needed. The only role the Natives could
initially play in the money economy was by providing unskilled labour.

Policies of differentiation such as, e.g., separate schools, separate
residential areas, reserves for the different ethnic groups, influx control,
etc., were applied by the Germans, and were being applied by the
Respondent in the Territory at the time the Mandate came into existence.
The vast differences between the different groups made this both natural
and inevitable.

9. The way has now been paved for giving more specific consideration
to some of the major aspects and implications of the policies and mea-
sures actually applied by Respondent after accepting the Mandate. I
propose to do so under the sub-headings which follow.

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White Immigration

10. As has been indicated above, the resources of the Territory at the
commencement of the Mandate were inadequate to pay for its adminis-
tration. Circumstances compelled the Respondent to concentrate upon
development of the modern economy already operative inside the Police
Zone in order to obtain funds for the development of the whole Territory.
There was no alternative, if stagnation was to be avoided. As was stressed
by Professor Krogh in his expert evidence before this Court, the Re-
spondent only recently became a capital exporting country, and when
the Mandate was conferred upon it there could have been no contem-
plation that it would be expected to provide funds on a substantial
scale for the development of the Territory. Nor were any international
funds available for the purpose. The character of the rather limited
natural resources of the Police Zone, and the problems attached to
economic development thereof, were such as to require modern tech-
nology and entrepreneurship far beyond the capabilities of the indigenous
inhabitants, considering their under-developed state and the indications
provided by their past records of achievement. Add to these circum-
stances the shattered condition of the tribal economies and the under-
populated state of the Police Zone, and a policy of White immigration
will be seen to have been natural and almost inevitable.

11. Such a policy was certainly foreseen by the powers concerned. The
British Prime Minister, Mr. Lloyd George, in introducing the Peace
Treaty to the House of Commons on 3 July 1919, stated, inter alia:

“There is no doubt at all that South West Africa will become an
integral part of the Federation of South Africa. [t will be colonized
by people from South Africa. You could not have done anything
else 1.” (Italics added).

12. In these circumstances White farmers were encouraged to settle
‘in the Police Zone area, and most Crown land not required for Native
reserves was sold to these immigrants. The result was that within the
first years of the administration 4,885,000 hectares of land were allocated
to White farmers.

Scientific attention was given to agricultural development and to
overcoming the various problems set by the natural conditions: e.g.,
the provision of water, where possible, through the drilling of boreholes
and through appropriate forms of storage; the combating of stock
diseases through methods such as inoculation, dipping, quarantine
measures, selective breeding, etc.; the establishment of worthwhile
farming in the very arid southern parts, through development, by research
and scientific breeding, of a specially adapted strain of Persian Lamb
(Karakul), producing an exceptionally high-grade type of pelt, etc.
And thus the basis was laid for the development of a more diversified
economy, as came about after the Second World War, when the fishing

1 Temperley, History of the Peace Conference, Vol. VI, p. 502.
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industry was added (also through application of a high degree of tech-
nology) to the Territory’s sources of production. All this naturally
stimulated growth in commercial and professional activity, as well as
in various minor forms of secondary industry, with the result of constant
increases in the sources of revenue for the administration of the Territory
and particularly for the upliftment and advancement of the indigenous
peoples and the development of their homelands.

13. The fruits of the policy, particularly the benefits accruing to
the non-White peoples, are spectacularly demonstrated by the extensive
plans for further development as proposed by the Odendaa! Commission
and already in the course of implementation by the South African
Government. But the fact is that no less important, though perhaps less
spectacular, fruits and benefits have been enjoyed by the non-White
peoples over all the years of progression to the present stage, as will
appear in due course.

The achievement of the progress has taken time, having been delayed
and set back through various factors such as the general economic
depression of the early 1930s, exceptionally severe periodical droughts,
the Second World War, etc. But it is generally accepted, significantly,
that had it not been for the policy of encouraging White immigration
and stimulating the growth of a modern farming industry, the Territory
would have been reduced to irreparable bankruptcy during the world
depression, when hardly any income was derived from mining.

14. The policy in question was applied with full knowledge of the
organs of the League, who raised no objection thereto. And I may also
refer to the confirmation yielded by two independent investigations,
viz., by the van Zyl Judicial Commission in 1936 and by Lord Hailey in
1946, of the soundness of, and virtually inevitable necessity for, the
policy. (See quotations in Counter-Memorial, Book IV, pp. 420-421.)

Recognition of the Diversity in the Non-White Population

15. I have referred above to the diversity of non-White ethnic or
national groups in the Territory; to the differences between them as
regards language, culture, political, social and economic organization,
ways of life and standards of development; and to the extent to which
they traditionally lived as distinct national entities in separate portions
of the Territory. These matters form part of the admitted facts of record.
They may sound commonplace when merely referred to in terms of
broad generality; but they were made to live by the more detailed de-
scriptions and illustrations given by the expert witnesses, particularly
Dr. Eiselen, Professor Bruwer, Professor Logan and Mr. Pepler, in
their uncontested testimony.

16. That the various groups wish to maintain their separate identity
and to develop as distinct national entities is not only another one of
the admitted facts, but was demonstrated so clearly by the above wit-

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nesses, particularly Professor Bruwer, who had made special investi-
gations as a member of the Odendaal Commission, and also by Mr. Dahi-
mann, who described the futile attempts that had been made within
the modern political movements with a view to crossing the ethnic
barriers.

17. In the light of these realities it is small wonder that expert after
expert stressed the positive values involved in the various cultures
and group solidarities, and the importance of granting due recognition
thereto in any attempts at promoting the well-being of the individuals
comprising the groups.

South African experts emphasized these matters on the basis of
thorough knowledge and experience gained in southern Africa itself,
particularly in South Africa and in South West Africa. Their conclusions
were very forcibly confirmed by experts from other parts of the world—
i.e., by Professor Logan, on the basis of thorough field research in
South West Africa itself, and by Professors Possony, van den Haag and
Manning, on the basis of knowledge and experience gained by mankind
all over the world. Particularly the last-mentioned witnesses gave
examples of the tragic consequences that had resulted in so many
instances, in all parts of the world, from overlooking the importance
of such matters.

18. The above considerations show that also this aspect of the policies
which have actually been pursued by the South African Government
since the inception of the Mandate flowed naturally and almost inevitably
from the facts with which it found itself confronted. It did not create
the diversity or the sociological phenomena concerned; these matters
existed as realities which required recognition if attempts at promotion
of well-being and progress were to stand any chance of success at all.

Implications of White Immigration and Population Diversity

19. Respondent’s policy of encouraging the pre-Mandate White
community to remain in the Territory, and of encouraging White immi-
gration, gave recognition to the White group as an established part of
the population of South West Africa. This was entirely within the pro-
visions and contemplation of the Mandate. Having remained and come
at the special invitation of the Mandatory, with the concurrence of the
international supervisory organs, and having admirably fulfilled its
intended function of developing a modern economy in the Territory
for the benefit of the whole population, the White group undoubtedly
has a moral right to remain and to be treated with at least the same
consideration as any other group. The implications of this aspect of the
situation required to be recognized by the Mandatory from the very
inception of the Mandate, while it was encouraging the people concerned
to remain and to come, and while those people were settling about the
task intended for them.

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20. The implications were of considerable importance. For illustration
I shall mention some that come readily to mind.

Had policies of separation and differentiation not been applied by
the Respondent, the probability is that many of the White people who
were already in the Territory would not have remained, and the badly
needed immigrants would not have come. White technicians, professional
people, farmers, miners, etc., would not have immigrated to the Territory
unless they knew that their children would receive an education com-
parable to that obtainable elsewhere, and unless they could maintain
their standard of living. There can be no doubt that cultural background
and language problems would have made it completely impracticable
to place White children and the children of the indigenous groups
in the same schools. The evidence shows that where such differences
exist both groups would suffer if they attended the same schools.

Without additional teachers the children of the immigrants could
not be taught. Unless White teachers—and only White teachers were
available—were offered remuneration commensurate with what they
could earn elsewhere, their services could not have been obtained.

21. In all the above respects the circumstances and needs of the in-
digenous groups were vastly different. They were at a stage of develop-
ment where it was necessary to begin to instil in them some realization
of the desirability of having education at all, in the sense as known to
Western civilization. The problem of their initial hostility and apathy
towards education was aggravated by factors such as nomadic habits
and scattered populations, the vastness of the Territory and its low
density of population, the large number of languages, the poverty of
the Territory, the shortage of teachers and the difficulties encountered
in training suitable teachers.

The approach of educationalists—not only in regard to South West
Africa, but generally in regard to the similar problems of African edu-
cation everywhere—was that under such circumstances there were
certain prerequisites before much progress along the lines of formal
education could be expected. One of these was that mission societies
should be encouraged to inculcate some appreciation of Christian and
civilized principles and standards in the indigenous communities, and
in connection therewith to foster some interest in education. Another
was that wage-earning employment could in itself be regarded as an
educational process, stimulating interest in formal education particularly
because of the utilitarian values thereof. A further factor was that
Native languages required study and.development into written languages
in order to serve the requirements of mother-tongue education, especially
for the very young.

Due to the language factor and the shortage of teachers generally,
it was inevitable that teachers in Native education would mainly have
to be Natives. Training sufficient Native teachers to a satisfactory

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level unavoidably took a long time. Furthermore, the absence of direct
contributions of any substance by Native communities to the costs
of education, and the struggle of the territorial economy for a long time
to balance its budget, were factors which tended to limit the funds
available for Native education. In the circumstances, and considering
the vast differences in social and economic levels between the White
community and the various Native communities, it would have been
most inappropriate to insist on exact parity as between these com-
munities, e.g., in the quality of school buildings or in salaries paid to
teachers. Such a requirement would have introduced a further artificial
and unnecessary retarding factor in the pursuit of the objective of bringing
education as soon as possible to as large a number of Native children
as possible, and the sufferers would have been the Native communities
themselves. The comparisons, in order to be appropriate, should not
be with levels in the White community, but with comparable things
in the particular Native community (or other African communities).
Thus the quality of school buildings should compare favourably with
other buildings utilized by that particular community and to which it
is accustomed. Teachers’ salaries again should compare favourably
with salaries, wages or income commanded by other members of the
same community in comparable forms of employment or activity.
As Dr. van Zyl pointed out, Native teachers often enjoy very valuable
privileges, e.g., subsidized housing, not accorded to White teachers.
The levels concerned could and should, of course, rise with time, as
they have in fact done, considerably, up to the present. But this should
be in keeping with the general advancement of the particular group,
otherwise internal balances become disturbed.

22. In brief, the point is that with the advent of the White group
the Native groups did not cease to be indigenous African communities,
comparable with similar communities elsewhere. The mere fact that
there was now a White community living beside them, did not mean
that their needs and circumstances had come to be identical with those
of the White community. On the contrary, this brief discussion with
regard to education provides a very clear illustration of the vast dif-
ferences, confronting the Mandatory, in the social and economic cir-
cumstances and standards of development of the White group, on the
one hand, and the various indigenous groups on the other, of the resul-
tant vast differences in their respective needs, and of the necessity to
minister to each group in accordance with its particular needs. In other
words, the discussion demonstrates how inevitable it was for the Man-
datory to differentiate if it were to seek the well-being and progress
of all concerned.

23. The same result emerges from a consideration of other aspects
of life, of which I wish to mention very briefly the political and the eco-
nomic spheres.

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In the political sphere, the members of the White group were derived
from countries in which they had been accustomed to share in the process
of parliamentary self-government. Where they now formed a com-
munity with interests of its own in the Police Zone of South West Africa,
it was a natural need on their part to enjoy a measure of such self-
government within that Territory, on an appropriate, quasi-provincial
basis, as was in fact extended to them in 1925. The Native groups had
no tradition, experience or knowledge of parliamentary government,
and. at that stage no interest in it (as was the case throughout Africa).
Each group (save for the Bushmen) had its own traditional political
institutions, each with considerable intrinsic value. The need of each
group was to have such institutions respected—and in the case of the
southern groups restored—and to have them suitably developed and
adapted in course of time, under the control and guidance of the Man-
datory, in accordance with changed circumstances and with advance-
ment within the group itself. Again this was exactly the purport of the
policies applied by the Mandatory.

24. In the economic sphere the needs of the groups again differed
substantially, and in many respects were diametrically opposed. This
necessitated reciprocal protections in order to ensure what Professor
Krogh so aptly described as “social peace”, a factor which is obviously
essential for economic progress.

The indigenous groups required certain fundamental protections
against the capital, the know-how and the exploiting ability, of the
White man engaged in private enterprise. This meant the reservation
of homelands for their exclusive ownership, use and occupation—save
in so far as a small number of White men might be required to assist
them, for such time as might be necessary, in essential services. It meant
also the reservation of preferential opportunities for them in com-
merce and industries within these homelands and even within Native
towns in the White area. It meant control over recruitment of labour,
labour contracts and conditions of service. Eventually it came to mean
also legislation compelling employers of Native labour in the urban
areas to combine with the local authorities and the central administra-
tion in the provision of fit and proper housing for their employees on
a subsidized basis, in properly planned townships. In addition to such
protections the indigenous groups needed assistance of varying kinds
within their respective homelands, with a view to advancing and im-
proving their subsistence economies and to transforming them gradually
into money economies. Mr. Pepler in his testimony gave a very vivid
description of the tremendous variation in the needs of the various
groups in these respects, depending on their customs, their stages of
development and their local circumstances; and he emphasized the
necessity of adapting one’s methods in each case to the needs and the
peculiarities of the particular group.

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Members of the White group engaged in entrepreneurial activities
needed fairly obvious protections against vagrancy, trespassing and
similar or attendant activities on the part of members of an under-
developed Native population.

Others, required for employment in skilled or semi-skilled capacities,
could only be attracted upon wages and conditions of employment keeping
pace with those available elsewhere. The importance of competitive
remuneration has been stressed by numerous authorities. It is not sur-
prising that in certain limited fields of employment some of these em-
ployees demanded and were given special privileges, protecting them
against the danger of eventual competition from members of non-
White groups who might be offering their services at lower levels of
remuneration.

Respondent’s Land Policy

25. Basic to the implementation of the above policies has been Res-
pondent’s land policy, of which the main feature is the provision of
separate areas of land for each of the population groups mentioned
above. This policy was approved of by the Permanent Mandates Com-
mission, which was—

. of opinion that the soundness of the views which have prompted
the Administration to adopt a system of segregation of Natives in
reserves will become increasingly apparent if there is no doubt
that, in the future, the Administration will have at its disposal
fertile land for the growing needs of the population and that the
reserves will be enlarged in proportion to the progressive 1 increase
in the population”.

The undisputed facts show that provision of sufficient land to the
indigenous groups has indeed been the concern of the Mandatory,
and that there has in course of time been extensive increases in the
reservations in their favour, both outside and inside the Police Zone.

26. Outside the Police Zone large areas of land were unoccupied at
the inception of the Mandate. This is not surprising if regard is had
to the relatively small population of this vast area at the time and the
fact that the Natives could not augment their water supplies by sinking
boreholes and building dams. As the populations of the different groups
increased substantial increases were made in the land reserved.

In Ovamboland the Natives at the inception of the Mandate occupied
only about one-half of the area which was later proclaimed as a Native
reserve for the Ovambo people. Similarly a very much larger area than
the strip along the Okavango River, originally occupied by the Oka-
vango tribes, has been reserved for this group. In the Kaokoveld the
area originally set aside for the tribes of this region has been increased
from 418,500 hectares to more than 5,500,000 hectares. In the Caprivi

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500,000 hectares were added in 1939 to the area originally occupied
by the Caprivians. An area of 350,433 hectares set aside in 1952 for Native
occupation is to be added in part to Ovamboland and in part to the
Okavango. There has been no reduction in the extent of land included
in the reserves in the northern territories outside the Police Zone. On
the contrary, these areas have been increased considerably as appears
from what has been said above and as appears more fully from the
review and tables provided in the Odendaal Commission Report of the
availability of land in the various non-European home areas. (Report,
pp. 67-71.)

27. Inside the Police Zone, as I have mentioned, the Herero and
the Nama had shortly before the inception of the Mandate been re-
duced in numbers to less than 20,000 and less than 15,000 respectively.
Tribal economies had been shattered, and in 1913 approximately 80 per
cent. of the total non-White adult male population in the Police Zone
were employed as wage-earners in the modern economy established by
the White group.

In the case of the Herero, the German régime had confiscated all
tribal lands and abolished all chieftainships, and had prohibited them
from owning cattle. They were, after a century of warfare, dispersed
over the Territory, and their traditional institutions, founded basically
on the possession of cattle, were largely broken up.

The Nama were also largely dispersed, although some groups were
permitted by the Germans to use defined pieces of land and to keep
limited numbers of cattle.

The Damara were released from their bondage to the Herero and the
Nama after the 1904-1907 wars. A Damara reserve was established at
Okombahe, where some of them settled.

On the assumption of the Mandate Respondent found it desirable
to restore, as far as possible the tribal life and social organizations of
the various Native groups in the Police Zone. This policy was clearly
in accordance with the wishes and best interests of the groups concerned,
and nobody doubted its wisdom. For this reason it was considered
necessary to establish reserves for the Herero, as well as the other groups,
and to extend such reserves from time to time as circumstances might
require. From the above-mentioned review in the Odendaal Commission
Report, it will be seen that the reservations in favour of Native groups
(i.e., excluding the Rehoboth Gebiet for the Basters, to which there have
been no additions) were increased from a total of about 1 million hec-
tares to a total of over 6 million.

28. The Odendaal Commission has recommended further very sub-
stantial increases in the Native reserves, both inside and outside the
Police Zone, together with certain consolidations in the Police Zone.
The proposals have been accepted in principle by the South African
Government, and full implementation is awaiting the decision in this
case. The over-all gain is about 50 per cent. (from 21,600,000 hectares
to 32,600,000 hectares). In the Police Zone where more than 3,400,000
hectares presently owned or occupied by White persons are being

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acquired for the purpose, the total increase will be more than 110 per
cent.

29. The present land allocations involve that about 45 per cent. of
the Territory’s total land area is occupied by White farmers, whereas
the reserves amount to about 27 per cent. This ratio, as well as the exact
areas of allocation, has been the product of the historical and economic
considerations dealt with earlier in this opinion. This situation is not
intended to be a permanent one, as is shown by the Odendaal Com-
mission’s recommendations above referred to. The adjustments now
proposed will make the total area of the reserves nearly as large as the
area of White occupation. It must of course be borne in mind that the
areas occupied by the Natives in the north have far superior possibilities
for agriculture. Only 20 per cent. of the present European farming
area receives an annual rainfall of 400 or more millimetres, which is
the minimum for dry-land farming, whereas the figure for the non-
White areas is 48 per cent. The area of the land in the latter areas, re-
ceiving an annual average rainfall exceeding 500 millimetres, is nearly
two-and-a-half times larger than the corresponding White areas. The
livestock-carrying capacity of the northern and north-eastern regions
is eight or less hectares per large stock unit, whereas in the areas occupied
by European farmers the capacity decreases progressively from north
to south from nine to 45 hectares per large stock unit. Seventy per cent.
of the total non-European population, and only 20 per cent. of the
Whites, are to be found in the most favourable region.

It must further be borne in mind that because of the superior use
made by the White group of the land available to it, and of the economic
opportunities presented thereby, very large numbers of non-White
persons in fact make a livelihood within the White area, either as wage-
earners or in business or professional occupations. This is likely to be
the case for a long time to come, whether such non-White persons will
be living in their reserved homelands or in the White area.

30. It will also be recalled that Mr. Pepler informed the Court,
on the basis of scientific surveys and assessments made by his depart-
ment, that far more people and far more stock could be accommodated
in the various existing reserves than are found there today and that the
existing reserves plus the proposed extensions made ample provision
for present population numbers purely as farmers, quite apart from the
additional prospects offered in regard to the secondary sector of the
economy.

31. Of course the carrying capacities of the reserves depend not only
on their size and natural endowments, but also on improvements effec-
ted by man where possible. In this respect much has been done by

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Respondent, with resultant substantial increases in the number and
quality of the stock. The steps taken by Respondent included the de-
velopment of water supplies by sinking hundreds of boreholes and wells
and building dams, the combating of stock diseases, and the improve-
ment of the quality of the stock by selective breeding and the intro-
duction of well-bred bulls and rams.

The population is being guided to greater productivity by means
of education and a gradual adaptation of their traditional economic
practices and social institutions. Crop rotation and suitable crop varieties
are introduced. Experts visit the reserves, and all advice is free. Breeding
stock is sold to the inhabitants of the reserves at cost or even below
cost.

32. The Odendaal Commission Report, and the South African
Government’s reaction thereto, envisage further large-scale improve-
ment schemes in the non-White homelands, some of which are already
well under way. Reference may be made to the Government White
Paper on the Commission’s recommendations, as reprinted in the Sup-
plement to the Counter-Memorial, especially to the following:

(a) Pages 12-13 (paragraph 7) regarding a large-scale water and elec-
tricity scheme for Ovamboland and various smaller schemes for
other homelands;

(b) Pages 13-15 (Paragraph 8, particularly sub-paragraphs (a) (ii)
and (b)) regarding roads and air services;

(c) Page 16 (paragraph 9 (6)) regarding mining;

(d) Pages 16-17 (paragraph 10) regarding industries;

(e) Page 17 (paragraph 11) regarding agriculture.

33. In regard to all additions and improvements to Native reserves,
as dealt with above (paragraphs 26-32), it will be observed that they are
part of the fruits that have been and are being enjoyed by the peoples
in question from the Respondent’s basic policy of stimulating a modern
economy in the Police Zone through White enterprise.

One should bear in mind that, whereas members of the White group
have to pay for their farms, all additions to the Native reserves (with
the exception of one farm) have been on a gratuitous basis. By far the
greatest amount spent on improvements in the Native reserves is derived
from public monies, whereas European owners of private farms pay
for their own improvements. The Natives pay no taxes other than to
their Native trust funds, which are used exclusively for their benefit.

In times of drought every possible kind of assistance is given to the
inhabitants of the reserves. All reasonable steps are taken to save stock
losses and grazing is made available. Food is subsidized, and free issues

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of food are supplied to the aged and incapacitated, to hospitals and to
schools.

Progress and Development in the Application of Respondent’s Policies

34. The period after the Second World War, particularly as from about
1950 until today, saw marked progress in and as a result of the ap-
plication of Respondent’s policies, and also certain adaptations in the
policies themselves in the light of changed circumstances. I wish to devote
very brief attention to these developments, in the political, economic
and educational spheres, and in general.

35. In the political sphere, there is in operation in every Native home-
land (except that of the Bushmen) a form of self-government practised
with Respondent’s encouragement and approval. The details differ
from people to people, the important consideration being to allow to
each people the system derived from its traditions. In some systems
there are hereditary chiefs together with elected headmen, in others
councils of elected headmen. Elections or appointments are made
through traditional processes. Respondent, while retaining ultimate
control and seeking to afford guidance to progress, interferes as little
as possible either with elections or appointments or with acts of self-
government.

In the light of awakened interest, in African communities generally,
as regards national development towards self-determination or in-
dependence, it is Respondent’s policy to utilize the traditional systems
as a basis for further development and modernization, with the co-
operation of the groups concerned, especially by the introduction of
more democratic elements, and so to pave the way for each people
to develop by evolution to a stage where it can determine its own future
destiny.

The soundness of such an approach was fully endorsed by the Oden-
daal Commission, who made proposals for practical implementation
thereof. The proposals noted above in regard to extension and consoli-
dation of the various homelands, and their further economic develop-
ment, are all, apart from their intrinsic merits, designed to contribute
to the effective and fair implementation of the policy of separate free-
doms.

Specifically in the political sphere the Commission recommended,
in respect of each such territory, the establishment of a separate citizen-
ship and general franchise, and a parliamentary system of government,
combining elected representatives with the existing governing bodies.
The proposals envisage a gradual taking over of powers from the South
African Government, and a gradual Africanization of the civil service
in each case.

The basic consideration is that each group, including the White

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group, will govern itself only, and that domination of one group by
another will be avoided. On reaching maturity each group may decide
for itself whether it wishes to stand on its own legs or to enter into some
political or economic or other ties with another group or groups. Possi-
bilities are endless, but South African political leaders have indicated
preference for a possible organization operating on the lines of a com-
monwealth or common market, i.e., on a basis of consent as between
equals and not a basis of majority rule. This idea offers prospects for
regional co-operation in southern Africa over an even wider area than
the Republic and South West Africa.

36. In regard to the economic sphere, reference has already been made
to the progress achieved in regard to development of the homelands, and
to the further projects now under way.

As regards other aspects of economic well-being and progress, the
evidence and admitted facts show that the earnings of Natives in the
Territory compare favourably with all other comparable countries.
It is also significant that Applicants had to concede that they were not
alleging that the Respondent had not built enough houses, schools, roads,
hospitals, irrigation schemes, etc.

Another noteworthy aspect of economic progress is that which has
flowed from the policy of giving preference to members of a group in
regard to economic opportunities within the homeland of that group,
and to Natives in general within Native townships in the White area.
These protected opportunities must be of enormous value. Just as the
best land in Native homelands would soon pass into White ownership
if that had not been forbidden by law, very few, if any, Natives couid
probably, as at the present stage, compete successfully with White men
in regard to exploitation of commercial, industrial and professional
opportunities within the homelands and townships. By the policy of
protection and special encouragement, however, e.g., through the waiving
of prescribed licence fees, the administration has succeeded in establishing
hundreds of Native businessmen in their areas and townships; numerous
teams of specially trained Native artisans are engaged upon the develop-
ment and building projects under way in the homelands and townships;
Native teachers in 1963 numbered over 1,200, and increasing numbers
of Natives are employed by the Government in their own areas as
inspectors, secretaries, clerks, etc.

37. In the sphere of education, marked progress was made in regard to
Native education as from 1950 onwards. School enrolment figures more
than doubled themselves between 1950 and 1962—from 22,659 at the
earlier date to 47,088 at the later. In 1963 there was a further increase

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to 49,297. The 1962 figure was estimated by the Odendaal Commission
to represent about 46 per cent. of the over-all possible school population.
The estimate for the present time is about 52 per cent. The Odendaal
Commission recommendations set their target at an increase to 60 per
cent. in all Native homelands by 1970, These attendance figures compare
more than favourably with those in other African States. The 1960
figure (40 per cent. of the over-all possible school population) represented
9.2 per cent. of the total Native population in the Territory: the corre-
sponding percentage for Ethiopia (in 1961) was 0.910 and for Liberia
(also in 1961) 4.421. For the African States as a whole, the proportion
of school-age population at school in 1961 was given by a United Nations
publication as 16 per cent. In individual States the percentage ranged
from less than 2 per cent. to ‘‘nearly 60 per cent.” And ‘in the majority
of cases, the proportion of children out of school exceeds 80 per cent.”
(Unesco/ED/180, p. 5.)

There is in South West Africa still an unsatisfactory falling off in
attendance figures in higher standards, but the situation is improving.
It may be expected to improve yet further upon implementation of the
Odendaal proposals. These involve the taking over of Native education
in South West Africa by the Bantu Education Department of the Re-
public, and the application by it of the methods of the Bantu education
system which have been such a triumphant success in the Republic, as
described to this Court by Dr. van Zyl in his evidence +. Further the
proposals involve more advanced and greater numbers of schools,
hostel facilities and facilities for the training of teachers. The Commission
estimated that expenditure on the buildings alone would, in the case of
the non-White groups, amount to R3,500,000 over the first five years.

38. In general the picture of South West Africa emerging from the
admitted facts and the uncontested testimony is one of orderly, evolution-
ary progress, with the overwhelming majority of the inhabitants, White
and non-White, manifesting their support for Respondent’s policies
in ever-increasing measure. In the case of the non-White peoples this
was demonstrated, inter alia, by the enthusiasm evoked by a recent visit,
at their own request, of leaders of a number of groups to the Republic
of South Africa, in order to see developments in the Transkei and other

1 The information he gave included the following: In 1964 nearly 2 million
Bantu children were at school, being over 80 per cent. of the school-age population,
and nearly 32,000 Bantu teachers, including school principals, were employed.
There were at present 55 Bantu school inspectors and 170 Bantu assistant inspectors.
At the end of 1965 about 1,300 Bantu candidates were expected to write the official
school-leaving examination (Matriculation or Senior Certificate, the same as for
White and Coloured persons) of whom about 800 were expected to pass. For
the Junior Certificate (two years lower) the candidate figure was 12,000, of whom,
7,000 to 8,000 were expected to pass.

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examples of application of the policy of separate development in the
Republic,

Results of Applying the Alleged Norm or Standards

39. Against the background of what has been set out above, it seems
self-evident that application of the suggested norm or standards in
South West Africa is likely to prove disastrous, as was indeed empha-
tically stated in evidence by one expert after another.

40. In the political sphere which is largely the key to well-being in
all spheres, application of the norm or standards would mean that
Respondent is obliged to treat the Territory as an integrated unit, to be
governed by a central parliament elected on the basis of a system that
will ultimately be one man one vote.

Mr. Cillie in his evidence pointed out that this would mean domination
by the Ovambos, forming 45 per cent. of the population, or by ruthless
men exploiting their numerical preponderance; the domination would
mean submergence of the most developed minority groups—the White,
the Coloured and the Rehoboth groups—as well as the least developed
ones—the Bushmen and the tribes of the Kaokoveld.

“Jt means to these people, as it means to the Whites, that they
are being forced to commit a form of national suicide, and that
prospect evokes all the forces of resistance that you would expect
in any nation in similar circumstances.” (C.R. 65/61, p. 101.)

Later he said pointedly: “It would mean chaos’ (C.R. 65/61, p. 146).

One need merely have regard to chaotic conditions existing or develop-
ing in numerous African countries, where several relatively under-
developed nations constitute one political State, to realize that if the
Applicants’ policy is applied under present circumstances the inevitable
result would indeed be retrogression and chaos. The sad histories of
numerous African States, e.g., the former Trust Territory Ruanda-
Urundi (now Rwanda and Burundi), the former French Cameroons,
Algeria, Ghana, the Congo, the Sudan, Kenya, Zanzibar, Togo, Nigeria,
the Central African Federation of the Rhodesias and Nyasaland, and
other States—such as Cyprus—speak for themselves.

When universal franchise is introduced into a fairly homogeneous
society there is a reasonable prospect of success, even where the general
standard of development of the electorate is fairly low. But when various
national groups differing widely as to physical appearance, ethnic
stock, culture, language, and standards of development are being
integrated into the same political system, failure seems to be inevitable.
The tensions, uncertainties and disharmonies which arise from attempts
at assimilation of peoples with gross dissimilarities are strong enough

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to doom to failure any schemes that the ingenuity of man may devise,

One should bear in mind that these separate groups existed at all
material times. The Respondent did not create them. There is no justifi-
cation for forcing people to live together who have no desire to live to-
gether, when it is possible to avoid it. There is no justification for forcing
different communities to be dissolved into one integrated political unit,
when they are opposed thereto, and when one knows that retrogression,
chaos and suffering will result therefrom.

41. In the economic sphere, the first important consideration is the
effect that would come from application of the norm or standards in
the political sphere. The White group would either depart or be drawn
into endless strife, possibly hostilities. Either event would either collapse
or cripple the economy.

But application of the norm or standards in the economic sphere
itself would directly bring about similar results. It would mean doing
away with the various reciprocal protections, and with the special
advantages, to which J have referred above. The effects, especially for
the indigenous groups, seem obvious.

I quote Professor Krogh:

“... under the circumstances I have sketched to you, and bearing
in mind these diverse social and economic conditions in South
West Africa, J have little doubt in saying that it would lead to the
rapid deterioration of the material and economic welfare of the
majority of the population, and by this I particularly refer to the
non-White population groups. I can also see that they will not
tolerate this and that this might very well lead to social strife, that
would in fact arrest the economic development of South West
Africa, which I think is an exceptional example in Africa ...”
(C.R. 65/65, pp. 44-45.)

He was strongly supported by others. Professor Logan’s diagnosis
of the effects of removal of the controls included “the subjugation or
almost obliteration of some of the existing tribal groups”, also “violent
antagonism and frequently . .. warfare’’. He expected that “‘the economy
... would, to a large extent fall apart” and that “a rather chaotic situ-
ation would develop” (C.R. 65/58, pp. 46-47). And Mr. Pepler predicted:

“... it will be a very tragic day for the Native peoples” (C.R. 65/69,
p. 62).

42, In the educational sphere, Dr. van Zyl and Professor Eiselen,
who are undoubtedly experts in this field, described to the Court the
advantages of the system of differentiation. They demonstrated that
where a school for a particular community is governed by the community,
the interest of the community in the school and in education is stimulated.
They described the advantages of mother-tongue as a medium of in-

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struction. It seems clear beyond any doubt that today it is generally
accepted that this method of teaching is the best. Dr. van Zyl emphasized
that the vernacular was of the utmost importance in bridging the gap
between the home and the school and that it led to parents displaying
a greater interest in the education of their children. In his opinion the
use of the mother-tongue was the best way to ensure that pupils understood
what they were being taught. Furthermore it promoted original thinking.
Experiments had shown that pupils taught through the medium of their
own language performed better at school, in all subjects, than pupils who
were taught through a foreign medium.

If a system of joint schooling were introduced, mother-tongue in-
struction would become impossible, and all the advantages attached
thereto, and to the system as a whole, would be lost. In any event it is
common cause that had such a system been attempted it would have
failed. The undisputed evidence is that by having the present system
the Respondent is acting in accordance with the wishes of the vast
majority of the population of the Territory.

Dr. van Zyl’s conclusion was:

“The differences among the population groups in background,
language, tradition and culture are so big that the people do not
mix socially, with the result that integrated schools are almost
inconceivable. From what I know of the people, there cannot be
peaceful integration in the field of education and any attempt
to enforce integration will cause the collapse of the educational
services.”

43. On the admitted and uncontroverted facts the above conclusions
are so indisputable that it is small wonder that Applicants’ Agent,
towards the end of the proceedings, refrained from an attempt at con-
testing them. Instead he attempted to evade them by suggesting that they
were not directed at the contents, properly understood, of the norm or
standards on which he was relying. He became inconsistent on the
question whether the norm or standards did involve one integrated
political system with universal adult suffrage, but in the end he conceded
that such was the “‘target for achievement”. In the economic sphere he
seemed to suggest that protective and preferential measures in favour
of the non-White groups were permissible, but that such measures
in favour of the White group were per se impermissible as constituting
“racial discrimination”, a concept which he did not attempt to define.
Nor did he attempt to explain how such a distinction could be said to
be contained in the norm or standards as formally defined and incor-
porated in Applicants’ amended submissions, or to relate to any of
the alleged sources of the norm or standards. In regard to educa-
tion he avoided the question of integrated schools, contenting him-

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self with a somewhat obscure subtlety about compulsory education.

All I need say about these manoeuvres is that they are not attractive,
either as to their merit or their timing, and that they do not advance
the Applicants’ cause: they have rather the opposite effect. The case is
concerned with a norm or standards as set out in the definition formally
incorporated in the amended submissions. The case cannot now be
considered as if it were concerned with something else. The attempt
to do so appears to be an acknowledgement that the norm or standards,
as contemplated in the amended submissions have been shown to be
non-existent.

44. These considerations lead to the inevitable conclusion that there
was not only no need for the creation of the alleged norm or standards,
but that, had they been applied in South West Africa, the purpose of the
Mandate would have been defeated.

Conclusion

45. In all these circumstances there can be no doubt that the alleged
norm or standards do not exist and in any event do not apply to Article 2
(2) of the Mandate Declaration for South West Africa.

Article 2 (1) of the Mandate
(Applicants? Submission No. 5)

1. Applicants’ Final Submission No. 5, as amended on 19 May 1965,
reads as follows:

“5. Respondent, by word and by action, has treated the Territory
in a manner inconsistent with the international status of the Terri-
tory, and has thereby impeded opportunities for self-determination
by the inhabitants of the Territory; that such treatment is in vio-
lation of Respondent’s obligations as stated in the first paragraph
of Article 2 of the Mandate and Article 22 of the Covenant; that
Respondent has the duty forthwith to cease such action and refrain
from similar action in the future; and that Respondent has the
duty to accord full faith and respect to the international status
of the Territory.”

It will be observed that the submission, on its own, is completely
vague, inasmuch as the “word’’ and “action” relied upon are not
identified at all. The only possible clue to identification is to be found
in the preamble to all the submissions, which contains the words “‘upon
the basis of allegations of fact, and the statements of law set forth in
the written pleadings and oral proceedings herein”. These words are
also very wide and vague. They raise the problem of selecting from the
voluminous pleadings and records of the oral proceedings that which
was intended to be relied upon as constituting the “word” and the
“action” spoken of in the submissions.

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2. In the original version of this submission, as set out in the Me-
morials, the words “by word and by action” were followed immediately
by the words “in the respects set forth in Chapter VIII of this Memorial”.
Those “respects” were easily identifiable. They consisted of four enumer-
ated official actions plus an alleged motive or intent on Respondent’s
part to incorporate the Territory of South West Africa unilaterally into
the Union (now Republic) of South Africa. The contention was that
the four actions, read in the light of the alleged intent, constituted the
alleged violation of the obligations in question (Memorials, p. 195).

In view of the fact that the final submission no longer contains a
specific reference to these “‘respects set forth in Chapter VIII of [the]
Memorial[s]’’, the question arises whether they were inte ded to form
part of the final submission. For reasons which I shail i.dicate later, I
am satisfied that, on a true analysis of events during the oral proceedings,
this question is to be answered in the negative and that Applicants have
indeed, for understandable reasons, abandoned reliance upon the said
actions and the said alleged intent. However, I do not wish to confine
myself to that conclusion for disposing of the said actions and alleged
intent as suggested grounds for acceding to the submission. As a matter
of merit they clearly do not, in my opinion, support the submission,
for reasons which I proceed to state briefly.

3. The four actions relied upon in the Memorials were:

(a) “General conferral” of South African citizenship upon inhabitants
of South West Africa.

(b) Inclusion of representatives from South West Africa in the South
African parliament.

(c) Administrative separation of the Eastern Caprivi Zipfel from the
rest of South West Africa.

(d) The vesting of South West Africa Native Reserve Land in the
South African Native Trust, and the transfer of administration of
Native affairs to the South African Minister of Bantu Administration
and Development.

In my view it is unquestionable that these administrative and legislative
provisions prima facie did not go beyond an exercise of the “full power
of administration and legislation’ vested in Respondent, including
the right to administer the Territory ‘‘as an integral portion of the Union
of South Africa”. And this is probably the reason why the original
submission relied, as indicated above, on Respondent’s alleged motive
or intent as rendering illegal actions which might otherwise be un-
objectionable 1,

1 Note the formulation of the conclusion at page 195 of the Memorials: “By the
aforegoing actions, read in the light of the Union’s avowed intent, the Union has
violated, and is violating ...”’ (Italics added.) (Footnote continued overleaf.)

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4. A question of primary importance is therefore whether the alleged
motive or intent was established as a fact. Jt can hardly be doubted that
the answer is in the negative.

In the first instance, this point is really disposed of by Applicants’
admissions of fact to which I referred when dealing with Submissions
Nos. 3 and 4. These admissions related also to disputed facts concerned
with Submission No. 5. Indeed, that the admission was intended to
embrace also such facts, appears clearly from a statement by Applicants’
Agent in which he referred to—

“,.. the facts with respect both to militarization and annexation,
as disputed by the Respondent, and as subsequently accepted by
the Applicants for purposes of these proceedings”.

Respondent had, in its pleadings, drawn very sharp issue with the
allegation of an intent or purpose or motive to incorporate the Territory.
It directly denied the existence of such an intent, etc., and, indeed,
expressed an intention of continuing to administer the Territory as if
the sacred trust provisions of the Mandate were still in force. Detailed
expositions and analyses of fact were offered in support of the denial.

In my view there can be no doubt that the issue thus drawn was
one of fact. In the oft-quoted words of Bowen, L.J.: “The state of a
man’s mind is as much a fact as the state of his digestion.” (Edgington
v. Fitzmaurice (1885), 29 Ch.D. 459 at p. 483.) It seems clear therefore
that Applicants’ admissions would on ordinary principles have embraced
also this dispute.

However, it is not necessary to speculate, since Applicants them-
selves rendered it abundantly clear that they regarded Respondent’s
state of mind as a fact, and that they must therefore have intended
Respondent’s version of this fact to fall within the compass of their
admissions. This may be illustrated by two quotations. On 27 April,
Applicants’ Agent referred to: |

“Respondent’s apparent misconception that any of the Appli-
cants’ reasons, or arguments, reflect their assumption that state of
mind, motive or purpose is something other than a fact.”

In reply to this “misconception” the learned Agent then continued:

“Many situations of course are known to the law in which
motive, or intent, is not merely a relevant fact but, indeed, may
be a decisive one ... Further discussion of so elementary a matter
as to whether motive, or state of mind, is a fact, and provable as
such, would be a waste of the Court’s time.”

Note also the sentence at page 186: ‘“‘Motive is an important indicator since it
sheds light upon the significance of individual actions, which might otherwise
seem ambiguous.” '

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On 18 May, ie., the second last day of Applicants’ argument, their
Agent confirmed this attitude. He is recorded as saying—

“*... the subjective analysis is, as the Respondent has properly
pointed out, one which is susceptible of factual determination; as
the Respondent has said repeatedly, it is possible for courts to
ascertain states of mind; facts are determinable in terms of states
of mind. In certain types of legal problems—delicts, crimes—the
state of mind is indeed the crucially relevant fact that determines
the character of the crime. Therefore there is no question but that
a state of mind is determinable as a fact. However, as applied to
the objective of the Mandate, the state of mind with which the
Respondent approaches its task, while a fact, nevertheless does not
appear to the Applicants to be a fact which is determinative of the
purposes of the Mandate itself...”

This last quotation confirms again that the very purpose of the admissions
was to avoid the further evidential enquiry that might have been necessary
had the dispute, inter alia, as to intent, persisted.

5. However, even if there may be any doubt as to the intended ambit
of Applicants’ admissions in the above respect, it is abundantly clear
from the record that no question of any. improper state of mind on
Respondent’s part could in any event have remained once the more
tangible facts set out by Respondent were accepted as true. Respondent’s
expositions included a whole chapter of relevant statements and facts
that had not been mentioned in the Memorials, some not in this context
and some not at all (see Book VIII of the Counter-Memorial, section €,
Chapter II, pp. 94-105). They included also evidence as to actual benefits
received by the inhabitants from the measures complained of (ibid.,
Chapters IV-VII, pp. 114-156; Rejoinder, Vol. IT, pp. 454-457). All of
this material requires to be considered before any inference as to state
of mind can be drawn. And upon such consideration there remains
not even a suspicion that Respondent might be embued with the intent
or motive to incorporate South West Africa unilaterally into the Republic
and that consequently its repeated denials of such an intent or motive
are to be disbelieved. On the contrary, to metition only one consideration,
in the light of the admitted fact that Respondent is pursuing a policy
aimed at separate self-determination for the various population groups
of South West Africa, it is difficult to see what practical purpose could,
from Respondent’s point of view, be served by an interim attempt at
interim incorporation of the Territory into the Republic.

6. The firm conclusion from the admissions and the eventually
undisputed facts is therefore that Respondent was not motivated by,
and indeed did not have, any intention or motive to annex or incorporate
the Territory, and that the measures complained of were not only
intended for the benefit of the inhabitants of the Territory, but, in fact,
operated to their benefit.

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This being so, Applicants’ case as originally presented became
insupportable. As I have said earlier, the acts complained of fell prima
facie within the ambit of Respondent’s powers of legislation and ad-
ministration. If it is admitted or established that these acts were intended
to promote the well-being of the inhabitants and did so in fact, it seems
to me that Respondent cannot be held to have acted illegally in any
respect.

7. A contention to the contrary was advanced by Applicants for
the first time in their Reply (p. 357), on an alternative basis. The sub-
mission was that the acts referred to in the Memorials constituted
“ipso facto, and without regard to Respondent’s motive or purpose,
a violation of Respondent’s obligation to respect the separate international
status of the Territory”. Before dealing with issues raised by this con-
tention, I would point out that even if it were correct, the effect of
Applicants’ above-mentioned admissions would at least be to reduce
their complaints to insignificant technicalities of which it may rightly
be said that de minimis non curat lex. As an illustration of what I have
in mind, I may refer to Applicants’ complaint regarding the general
conferment of South African citizenship on the inhabitants of the
Territory. If such conferment were shown to have been a step in a
deliberate scheme of piecemeal incorporation involving also an obstacle
to the political advancement of the inhabitants of the Territory, it would
have been a serious matter and would certainly have been regarded
as such by this Court. However, once it is accepted, as it now is, that
no such scheme exists and that the measure was introduced for the
advantage of the inhabitants, who have, as a fact, received only benefit
and no detriment whatsoever therefrom (and particularly no detriment
to their political advancement or detriment to the international status
of the Territory) I cannot see what the practical significance would be
of a finding that technically it was wrong of Respondent to introduce
such a measure. This is, however, in passing—my own view is that the
suggestion of a per se violation of the Territory’s international status
is not only immaterial from a practical point of view, but also untenable
in law, as I shall show more particularly in respect of each of the actions
in question.

8. The first of the four actions was termed in the Memorials “the
general conferral of Union citizenship upon the inhabitants of the
Territory”. The relevant measure in this regard was Act 44 of 1949
which had the effect of extending South African citizenship to all persons
born in South West Africa after a certain date. There does not appear to
be any prohibition on such conferment in the Mandate, as indeed the
express authorization to administer the Territory “‘as an integral portion
of the Union of South Africa” and to “apply the laws of the Union of
South Africa to the territory, subject to such local modifications as
circumstances may require” would, in my view, suggest that it would be
permissible if properly done for the benefit of the inhabitants and not
for an ulterior purpose.

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9. Applicants, indeed, did not base their case in this regard on an
interpretation of the provisions of the Mandate. On the contrary, they
relied solely on the terms of a resolution of the Council of the League
of Nations dated 23 April 1923. It is clear that any resolution of the
League Council relating to the legal effect of the mandates is entitled
to great weight. On the other hand it must not be forgotten that the
Council did not possess legislative competence. All obligations sought
to be imposed on the Mandatory must in the final analysis rest upon
the provisions of the Mandate.

10. Turning now to the terms of the Council resolution, I would
point out that it does not appear to oppose the introduction of joint
nationality as such—indeed it specifically authorized voluntary nation-
alization of individual inhabitants of mandated territories by the
mandatory power. The Council’s main concern appears to have been
rather that inhabitants of mandated territories should not be completely
assimilated with the population of the mandatory power. “Assimilation””
was the crucial matter dealt with in the report of Marquis Theodoli
which formed the basis of discussions in the Permanent Mandates
Commission (Reply, p. 359). The same concept, although not by that
name, was the burden of the Commission’s proposal No. III and the
reasoning in support of it (Counter-Memorial, Book VIII, p. 115) and
also of the opening paragraph of the Council’s resolution, which reads:

“The status of the Native inhabitants of a Mandated territory is
distinct from that of the nationals of the mandatory Power and
cannot be identified therewith by any process having general
application.” (Counter-Memorial, Book VIII, p. 116.)

If this is the correct interpretation of the resolution, it would in my view
not be transgressed by general nationalization by the mandatory of the
inhabitants of the mandated territory unless such inhabitants thereby
lost their separate status. In my view, Act 44 of 1949 did not result in
any such loss. It did not purport to abolish or reduce the rights of the
Native inhabitants of the Territory; their status as inhabitants of a
mandated territory remained and is not shared by the inhabitants of
South Africa. Repeal of Act 44 of 1949 would not add anything to the
rights of inhabitants of the Territory.

11. If J am wrong in my above-stated view, and if the Council re-
solution should be read as intending to impose an absolute prohibition
on the general nationalization of the inhabitants of mandated territories,
irrespective of whether such inhabitants thereby lost their separate status
or not, I regret to say that I do not regard it as a correct statement of
the legal position. In my view no such provision was expressed, or can
be implied in the Mandate. On either view of the meaning of the Council
resolution I accordingly find that Act 44 of 1949 does not per se con-
stitute a violation of the separate international status of South West Africa.

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12. The second action raised in the Memorials, was the inclusion in
terms of Act 23 of 1949 of representatives from South West Africa in
the South African Parliament. In the Memorials the objection taken
to this measure was stated to be that it—

**_, .isnot only part of a plan to incorporate the Territory politically,
but also excludes ‘natives’ from the processes of self-government’’.
(Memorials, p. 193.)

The “plan to incorporate the Territory politically’? has fallen by the
wayside and no more need be said about it. As regards the so-called
exclusion of the Natives from the processes of self-government, the Appli-
cants appear to have identified themselves with criticism in a report by
the Committee on South West Africa to the effect that “the existing
arrangements ... have excluded either the consultation or the representa-
tion of the largest section of the population ...”’.

It will become apparent that charges or comment to this effect extend
beyond the per se effect of the legislation, and necessitate enquiry into
the whole political framework of which the legislation forms part.
Expositions on this subject were given by Respondent in its pleading
relative to Applicants’ Submissions Nos. 3 and 4, and the facts thus
presented were eventually accepted as true by the Applicants. These
facts were further supplemented in uncontroverted testimony of expert
witnesses. From these admitted facts it appeared clearly that the above-
quoted comments of the Applicants and of the Committee on South
West Africa were not justified. The mere absence of representation of
non-White groups in the political institutions designed solely for the
White group, does not mean that the non-White groups are excluded
either from consultation or from processes of self-government. The fact
is that Respondent’s system, with a view to the best interests of all the
population groups concerned, makes distinct and separate provision for
the consultation, self-government and political development of each
group, in a manner best suited to the needs and circumstances of each
group. Once this is accepted, and acceptance, in my view, follows in-
evitably from the Applicants’ admission, the averments and comment
under discussion will be seen to be unfounded.

It has also been suggested that the arrangements operate to the
detriment of the non-Whites, inasmuch as the interests of the White
part of the population are likely to be better served, e.g., if it came to
a partition of the Territory. This suggestion extends even further beyond
a case resting on the per se aspects of the particular legislation. Indeed,
a moment’s reflection will show that it is completely out of place in the
present context. A complaint that the political institutions of the White
section of the population are more effective than those of other sections

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would not appear to have any relevance to alleged violations of the
separate international status of the Territory, with which I am dealing
at present. It could have a bearing, if at all, only on that part of the case
dealing with the alleged failure on the part of Respondent to promote
well-being and progress in the political sphere, i.e., Applicants’ Submis-
sions Nos. 3 and 4. As I have shown when dealing with these sub-
missions, Applicants no longer attempt to establish a case on the basis
of unfairness towards, or oppression of, the non-European population
of the Territory, and could in any event in my view not have succeeded
with such case. Had the suggestion under discussion been advanced in
the pleadings as an averment in support of any of their submissions,
and persisted in during the oral proceedings, there would doubtlessly
have been much closer investigation into the relative effectiveness of the
arrangements for the White group and of those for the non-White
groups. In such an investigation due regard would have had to be paid
to the fact that the whole system is a developing, evolutionary one, and
that, as Mr. Cillie stressed in his evidence—

“sc

. as political organs and economic and social institutions
develop among the various non-White peoples ... Less and less
it is going to be in Southern Africa a matter of unilateral decisions
and arrangements. It stands to reason that, as children grow up and
develop a will of their own, their wishes have to be taken into
account in the affairs of the family and that is what we are driving
at.”

In the circumstances I need to say nothing further about the suggestion
here.

13. All that remains then is the question whether the representation
of inhabitants cf South West Africa in the South African Parliament
is indeed per se an infringement of the Mandate, and, in particular,
of the separate international status of the Territory. As I have said
before, Article 22 of the Covenant and the mandate instrument autho-
rized the administration of the Territory as an integral part of South
Africa. There is no express provision precluding the Respondent from
allowing representatives from South West Africa in its Parliament,
and there is no justification for reading an implied term to this effect
into either of these instruments. Such a term cannot be said to be neces-
sary in the sense that one can confidently say that had it been raised
at the time the parties would have conceded that it fell within the ambit
of their agreement. On the contrary, the addition of such a term would
constitute a radical alteration of the provisions of the Mandate and the
Covenant.

Moreover, the conduct of the parties at the time of the drafting of
the Covenant and at all material times thereafter, confirm that there
could not have existed any common intention of precluding the Re-
spondent from allowing representatives of South West Africa in its
Parliament.

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When introducing the Peace Treaty in the House of Commons on
3 July 1919, Lloyd George emphasized that “South West Africa will
become part of the Federation of South Africa”.

14. In 1923 General Smuts informed the Permanent Mandates Com-
mission of the probability that the White inhabitants of the Territory
would be given representation in the Respondent’s Parliament. If any
State thought that such representation in Respondent’s Parliament
impeded “opportunity of self-determination”’ or was “inconsistent with
the international status of the territory’’ a voice of protest should and
would have been heard.

15. In later years the representation of South West Africa in the
South African Parliament was raised before and discussed in the United
Nations on a number of occasions. At all times the United Nations
contained a larger number of Members who had also been foundation
Members of the League. It is significant, therefore, that none of them
expressed the view that the Covenant or the Mandate precluded the
Respondent from allowing representatives elected by voters in South
West Africa in its Parliament.

Thus, on 11 April 1947, the House cf Assembly of Respondent’s
Parliament adopted a resolution reading, inter alia, as follows:

“Therefore this House is of opinion that the territory should be
represented in the parliament of the Union as an integral portion
thereof, and requests the Government to introduce legislation, after
consultation with the inhabitants of the territory providing for its
representation in the Union Parliament...”

This resolution was brought to the attention of the Secretary-General
of the United Nations by letter in 1947, and in this communication it
was also stated that Respondent would maintain the status quo and
would continue to administer the Territory in the spirit of the Mandate.
Nobody expressed a view that this undertaking was inconsistent with
the resolution. When the Respondent’s representative expressed the
view in the General Assembly of the United Nations in 1947 that such
representation in Respondent’s Parliament was not the same as in-
corporation and would not constitute a violation of any provision
of the Mandate, not a single State challenged the soundness of this
statement. In 1948 the Respondent’s representative in the Fourth Com-
mittee explained the provision of the proposed legislation whereby the
Territory would be represented in the Respondent’s Parliament, and
again emphasized that the proposed arrangement would not constitute
incorporation, and again nobody suggested that such representation
would be inconsistent with the international status of the Territory or
would in any other way breach the provisions of the Mandate. Neither
of the Applicants have offered any explanation for their failure to
challenge the Respondent’s contentions on these occasions.

When later on 26 November 1948 the Respondent’s representative
repeated its previous assurances that the measures designed to establish

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parliamentary representation in the Territory did not mean the Territory’s
incorporation or absorption into South Africa, the General Assembly
actually recorded in a resolution that it took note—

“... of the assurance given by the representative of the Union
of South Africa that the proposed new arrangement for closer
association of South West Africa with the Union does not mean
incorporation and will not mean absorption of the Territory by
the Administering Authority”.

Again not a single State challenged the correctness of Respondent’s
statement.

16. In 1949, Act 23 of 1949 was transmitted to the Secretary-General
of the United Nations. It was only at the end of the debate of the Fourth
Session of the Fourth Committee that one of the delegates proposed
an amendment to certain draft resolutions to the effect that the said
Act constituted a violation of the United Nations Charter. It will be
observed that even at this stage there was no suggestion that it constituted
a violation of the Mandate or the Covenant. In any event, this resolution
was defeated. A similar resolution was defeated in 1950. The above
attitude of States confirms my view that there is no substance in this
charge.

17. The third complaint upon which the Applicants based their
aforesaid submission is that the Eastern Caprivi Zipfel—hereafter
referred to as the Caprivi—is administered separately from the rest of
the Territory.

A proper appreciation of this issue necessitates some knowledge of
the geographical features of this area. It is east of longitude 21° and
forms part of a strip of land acquired by the German Government in
1890 as a zone of free access to the Zambesi River. It is long and narrow
and forms the north-eastern part of the Territory. In the rainy season
a large area becomes a huge swamp with the result that is is impossible
to approach it from the remainder of the Territory. It is mainly inhabited
by two tribes which have never had any connections with the other
Native groups in South West Africa.

An attempt between the years 1929 and 1939 to administer the Caprivi
as a part of South West Africa failed—it appeared clearly that it was
in the interests of the area to have it administered directly by Respondent.
This conclusion was reported to the Permanent Mandates Commission
who stated the following:

“The Commission learned from the annual report that owing
to the difficulty of satisfactorily controlling the eastern part of the
Caprivi Zipfel, it is contemplating making over the control of this
area to the Union Department of Native Affairs. It noted the
statements of the accredited representative to the effect that the
officer administering the area in question would work in close

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co-operation with the Mandatory Government which would be
acting for the Administration of South West Africa and that infor-
mation regarding that part of the territory would be included in
the annual reports as hitherto.

The Commission holds the view that the administrative arrangement
contemplated calls for no observations on its part provided all the
provisions of the Mandate are properly applied in the eastern
portion of the Caprivi Zipfel.” (Italics added.)

18. Applicants sought to support this contention relative to the
Caprivi by arguing that—

‘... [elven if problems of accessibility make administrative sepa-
ration expedient, it is incumbent upon Respondent to take other
steps to preserve the territorial integrity of the Mandated Territory
as a whole, and to develop the ‘sense of territorial consciousness
among all the inhabitants’ which is required by the United Nations.
Such a responsibility is implicit in the undertaking of the Mandate
itself.” (Reply, p. 363.)

Such an obligation could exist, if at all, only as part of the Mandatory’s
general duty to promote the political well-being and progress of the
inhabitants of the Territory. But, as such, it has no relevance, in my
view, to the present discussion of alleged infringements of the inter-
national status of the Territory. In any event, it is clear to me that no
such obligation was ever imposed by the Mandate, or even by the United
Nations in respect of dependent territories generally, as is apparently
contended by Applicants.

19. In view of the above circumstances I have no hesitation in holding
that the administrative separation of the Caprivi was a perfectly legitimate
exercise of Respondent’s governmental powers.

20. The fourth complaint relates to the transfer of the Administration
of Native Affairs from the Administrator to the Minister of Bantu
Administration and Development, and to the vesting of South West
African Native Reserve land in the South African Native Trust. In
this regard also it must be kept in mind that it is no longer contended
that these measures were actuated by any improper motive, or that
they have had any undesirable effect on well-being or progress. That
being so, there can, in my view, be no reason why Respondent should
not determine which official or agency should exercise or administer
particular functions or assets relating to the Territory. It could hardly
be suggested that Respondent is under an obligation to entrust all
functions regarding the administration of South West Africa only to
those of its officials who are stationed in Windhoek to the exclusion
of officials stationed in the Republic itself. Nevertheless that would
appear to be the effect of this contention, which should in my view, be
rejected.

21. To sum up, once it was admitted by the Applicants that the various
actions referred to in Chapter VIII of the Memorials were not motivated

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by any plan to annex or incorporate the Territory, the whole basis of
Applicants’ original case fell away. The alternative contention that these
acts “constitute per se, and without regard to Respondent’s purpose or
motive, a violation of Respondent’s obligation to respect the separate
international legal status of the Territory” (Reply, p. 354) reduced Appli-
cants’ charge at best (for them) to a mere technicality and at worst to
a completely untenable proposition.

22. It was probably the realization that their original charges were
insupportable that induced Applicants ultimately to abandon them, as
in my view they clearly did. In coming to this conclusion I fully appreciate
that a failure by a party to refer in the oral proceedings to particular
contentions or arguments raised in the written pleadings, does not
necessarily amount to an abandonment of such contentions or arguments.
However, in the present case there are a number of additional consider-
ations which in my view compel the aforesaid conclusion. Most of these
considerations have been dealt with before and it will not be necessary
to do more than refer briefly to them again. Firstly, it is significant that
in Submission No. 5 as originally drafted there appeared specific refer-
ences to the actions complained of, which references were deliberately
deleted in the amended submission. This in itself suggests that the
original grounds of action are no longer relied upon, a suggestion which
is strengthened by the consideration that the case as originally framed
could no longer succeed after Applicants had admitted that an essential
element thereof—the intent to incorporate—did not exist.

When attempting to ascertain positively what case was sought to be
made in the amended submission, which, as I noted above, is now
completely vague as to the conduct complained of, the obvious starting
point seems to me the Applicants’ final oral argument in which they
purported to explain their case. Reference to such oral argument shows
that Applicants at that stage did not only fail to advance any argument
in support of their original charges, but emphasized that their sole and
only case rested on an entirely different basis. They commenced their
discussion by expressing an intention of disposing of Submission No. 5
“in the context of the requirement of administrative supervision”.

They then elucidated their contention in support of their Submission
No. 5 in, inter alia, the following passages:

“_.. turning to the question of annexation, administrative super-
vision is here again seen to be of the essence. Respondent’s refusal
to submit to administrative supervision, indeed, is an underlying
element of the Applicants’ complaint in this regard. (Italics added.)

In the absence of such accountability, Respondent’s function of
administration would cease to be international.

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That is the essence of our contention in this regard. (Italics added.)

The absence, the denial, or the rejection of international super-
vision, alters the international status of the Territory; it deprives
it of that character. This is the basis of our submission in this regard.”
(Italics added.)

and, finally—

“With respect to the Submission 6 (sic), relating to annexation,
the refusal and denial of submission to international administrative
supervision impairs the international status of the Territory.”

In other words, Applicants repeatedly emphasized that their sole
contention was that refusal to submit to international supervision was
in itself an act inconsistent with the international status of the Territory.
This attitude is in line with the features I have mentioned above, all of
which, cumulatively, satisfy me that Applicants did not intend in their
amended submission to pursue the charges originally raised in the
Memorials, or the alternative thereto first raised in the Reply. They
intended to limit their case to the one contention mentioned above,
to the exclusion of all others. Consequently I now turn to a consideration
of the merits of the sole contention ultimately relied upon.

23. In the first place, its effect now is that Submission No. 5 amounts
merely to a paraphrase of Submissions Nos. 2, 7 and 8. Consequently
there appears little purpose in retaining it as a separate submission.
But in any event, it seems to me a complete non sequitur to argue that
Respondent has treated the Territory in a manner inconsistent with the
international status of the Territory and has impeded opportunities for
self-determination by the inhabitants of the Territory merely because
Respondent has refused to submit to international supervision. The one
question relates to the merits of Respondent’s actions and policies,
the other purely to supervision thereof. It follows, therefore, that even
if Respondent were obliged to submit to United Nations supervision
(which in my view is not the case) mere failure to do so would not be
an act contrary to the separate international status of the Territory.

Article 4 of the Mandate
(Applicanis’ Submission No. 6)

1. Article 4 of the Mandate provided as follows:

“The military training of the natives, otherwise than for purposes
of internal police and the local defence of the territory, shall be
prohibited. Furthermore, no military or naval bases shall be es-
tablished or fortifications erected in the territory.”

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2. In its original form Applicants’ Submission No. 6 read as follows:

“The Union, by virtue of the acts described in Chapter VII

herein, has established military bases within the Territory in violation

of its obligations as stated in Article 4 of the Mandate and Article 22

of the Covenant; that the Union has the duty forthwith to remove

all such military bases from within the Territory; and that the Union

has the duty to refrain from the establishment of military bases
within the Territory.” (Memorials, p. 198.)

3. The installations described in Chapter VII of the Memorials,

which were alleged to constitute military bases within the meaning of
Article 4 of the Mandate, were the following:

(a) an alleged military landing ground in the Swakopmund district
of South West Africa;

(6) an alleged military camp or military air base at Ohopoho in the
Kaokoveld area of South West Africa;

(c) the supply and maintenance facilities of the Regiment Windhoek.

The reason advanced by Applicants in their Memorials for contending
that these institutions were military bases, was that ‘“‘[ajrmed installations
not related to police protection or internal security fall within the class
of ‘military bases’ or ‘fortifications’ . . .””. (Memorials, p. 181.)

4, The facts relative to the aforementioned facilities are set forth in
the Respondent’s pleadings and are, as will be shown later, not in dispute.
For the purposes of this opinion I shall briefly restate the material facts
concerning each of the said facilities,

(a) The Alleged Military Landing Ground in the Swakopmund District of
South West Africa

The allegation in the Applicants’ Memorials, based on “information
and belief”, was that the military landing ground in question was situated
in the Swakopmund district within the Mandated Territory of South
West Africa. This allegation was not correct. The said landing ground
is not situated within the territorial boundaries of South West Africa,
but falls in the area of the Port and Settlement of Walvis Bay which,
although administered for practical purposes as if it were part of the
Territory of South West Africa, is in fact a part of the Republic of South
Africa +. Although Applicants accepted this “geographical explanation”’,
they advanced the contention in their Reply that Walvis Bay must,

“in a military sense, be considered to be in South West Africa,
inasmuch as it is completely surrounded by territory subject to the

1 It appears that Applicants based their allegation on a statement contained in
areport of the Committee on South West Africa. It would seem that the Committee,
apparently unaware of the true factual and legal position, was misled by a ref-
erence in Government Notice No. 636 of 1958 (SA) to the farm Rooikop, on which
the landing ground is situated, as falling within the magisterial district of Swakop-
mund—a correct statement at the time, but only in so far as the said administra-
tive arrangement is concerned.

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Mandate and necessarily depends thereon for essential services,
transport, communications and supplies, including water”’.

I quote this statement at this stage in view of the factual allegations
contained therein,

Even if these factual allegations were correct, there would be no legal
justification for considering Walvis Bay, “in a military sense” to be
“in South West Africa”. The Applicants did not mention any legal
principle, nor am J aware of any legal principle, which could under such
circumstances constitute one territory part of another, whether “in a
military sense” or in any other sense. It is, however, not necessary to
pursue this enquiry any further inasmuch as the factual allegations
upon which Applicants based their contention were not correct. A
reference to any reliable map will immediately show that the area of
Walvis Bay is not “completely surrounded by territory subject to the
Mandate”. It is approachable from the sea without entering or crossing
any part of the Mandated Territory. With regard to the other factual
allegations contained in Applicants’ above-quoted statement Respondent
denied that Walvis Bay “necessarily depends [on South West Africa]
for essential services, transport, communications and supplies, including
water”, and explained that, although use is made of certain services
provided from South West Africa, such as road and rail transport,
telephone and postal communications, Walvis Bay is not “‘necessarily”
dependent thereon. Nor does it obtain its water supply from the Terri-
tory.

I have already mentioned that Applicants, during the course of the
oral proceedings, intimated a general acceptance by them of Respondent’s
statements of fact in the pleadings. This acceptance, as [ will show later,
applied also to the facts relative to their charges concerning militarization.
In the result the whole factual basis upon which Applicants sought to
found their contention that Walvis Bay must “in a military sense” be
considered ‘to be in South West Africa”, has fallen away.

(b) The Alleged Military Camp or Military Air Base at Ohopoho in the
Kaokoveld Area of South West Africa

This facility is one of a few landing strips at various places in South
West Africa which are mainly used for administrative purposes but
also occasionally and intermittently for the landing of military aircraft.
These strips are natural surface strips which have simply been cleared
of vegetation and other obstructions. They are completely unmanned,
provide no maintenance or service facilities, and can only be used for
the landing of light aircraft.

(c) The Supply and Maintenance Facilities of the Regiment Windhoek

The Regiment Windhoek is a Citizen Force unit composed of civilians
who undergo peacetime military training for certain limited periods.

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Each trainee is enlisted for a period of four years and during that time
he undergoes three periods of training. In his first year of enlistment the
recruit attends a training course for a period of nine months at one or
other military training institution in the Republic of South Africa.
Over the last three years of his enlistment the trainee attends two training
courses of three weeks each at a training camp at Windhoek in South
West Africa. The said two periods of three weeks each is the only training
which members of the Regiment Windhoek receive in South West Africa
itself and, save when attending the training course aforementioned, the
members of the Regiment carry on their ordinary civilian occupations
and have no peacetime military obligations, except that they may be
called up if needed for purposes of restoring or maintaining law and order.
The complement of the Regiment varies from year to year inasmuch
as in every year new recruits are enlisted and trained men discharged.
Tn 1963 the complement was 20 officers and 221 other ranks. The Com-
manding Officer of the Regiment is not a professional soldier of the
permanent force, but, like the trainees, a member of the Citizen Force
and is predominantly occupied with his normal civil occupation.

At the training camp at Windhoek there are some houses occupied
by members of the South West Africa Command }; for the rest the camp
has ablution and cooking facilities only, sleeping accommodation for
trainees being provided during every training course by the pitching
of tents. The Regiment Windhoek is equipped with light reconnaissance
vehicles, i.e., armoured cars 2. It only remains to be said that the members
of the Regiment Windhoek are all European inhabitants of South West
Africa, there being no military training whatsoever of Natives in the
Territory.

5. I have already stated that the facts as set out above are not in
dispute. That is so inasmuch as Applicants, during the course of the oral
proceedings, admitted as true all the factual statements contained in
Respondent’s pleadings. And, as I noted when dealing with Applicants’
complaints regarding piecemeal annexation (Submission No. 5), their
admission was specifically confirmed also with reference to the part
of the case concerning militarization. In this regard Applicants’ Agent
referred to “... the facts with respect... to militarization . . . as disputed
by the Respondent, and as subsequently accepted by the Applicants for
purposes of these proceedings ...”. Not only were the facts, as afore-
stated, relative to the landing strip at Ohopoho and the Regiment
Windhoek, admitted by the Applicants, but they were confirmed in every

1 The South West Africa Command is a military administrative organ for,
inter alia, the Regiment Windhoek, with headquarters at Windhoek. It consists
of a small permanent force staff, the complement of which in 1964 was three
officers and seven other ranks.

2 See in this regard the evidence of General Marshall: he found in the hangar
at Windhoek: 12 small armoured cars (‘‘ferrets’?), which he described as reconnais-
sance vehicles; 6 Mark 4 armoured cars, 6 light tanks all Second World War ma-
terial and half of them out of commission; 16 miscellaneous vehicles, jeeps, trailers,
trucks, etc.; 1 six-pounder gun used for ceremonial purposes.

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respect by General Marshall. General Marshall was not asked to testify
as to any military facilities at Walvis Bay, which, as I have said, falls
outside the mandated territory.

6. The question then arises whether, on the facts as aforestated, the
three facilities referred to in the Memorials are military bases within the
meaning of that expression in Article 4 of the Mandate.

I would say that obviously and as a matter of common sense the
answer is in the negative. However, in view of the contrary contentions
at one stage advanced by Applicants, I may add that this answer is
confirmed by dictionary meanings and expert opinion.

The following definitions of the term “military base” are found in the
dictionaries:

(a) Webster's Complete Dictionary of the English Language (1880)

Base (military) “A tract of country protected by fortifications, or
by natural advantages, from which the operations
of an army proceed.”

(b) Webster’s New International Dictionary of the English Language

(Second Edition)

Base (military and naval) “The locality on which a force relies for
supplies (base of supplies) or from which it initiates
operations (base of operations); as, a submarine
base.”

(c) The Shorter Oxford English Dictionary (Third Edition)

Base (military) “The line or place relied upon as a stronghold and
magazine, and from which the operations of a
campaign are conducted.”

(d) Gaynor, The New Military and Naval Dictionary (1951)

Base “A locality from which operations are projected or
supported; the term may be preceded by a descrip-
tive word such as ‘air’ or ‘submarine’, to indicate
its primary purpose.”

(e) The Concise Oxford Dictionary of Current English (1958)

Base (mil.) “Town or other area in rear of an army where drafts,
stores, hospitals, etc., are concentrated (also [base]
of operations).”

(f) Funk and Wagnalls New Standard Dictionary for the English Language
(1961)
Base (mil.) “A place or region constituting a basis of operations
or a point from which supplies and reinforcements
[sic] may be drawn; a base of supply.”
It seems to me that there is a common feature in all these definitions,

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namely that a base is something utilized by a force or an army for the
purposes of operations or a campaign.

If I am correct in my reading of these definitions it follows, in my
opinion, that a place cannot be said to be maintained as a military or
naval base unless its purpose is utilization by a force or an army for oper-
ations or a campaign, actual or prospective.

7. If the aforestated test is applied to the admitted facts relative to the
facilities in question, not one of them would fall within the dictionary
definitions of ‘“‘military base”. I of course exclude the military landing
ground at Walvis Bay. As I have already pointed out, it falls outside
the mandated territory, and the relevant facts thereof were not investi-
gated. There is no basis, legal or factual, for a contention that it must be
considered to be in South West Africa, whether “in a military sense”
or any other sense. In so far as the two remaining facilities are concerned
neither the landing strip at Ohopoho nor the supply and maintenance
facilities of the Regiment Windhoek qualify, in terms of the dictionary
definitions, as military bases.

This was also the expert opinion of General Marshall, who, Applicants’
Agent conceded, was “indeed a recognized military authority and widely
read as such in our native country”.

General Marshall testified that he had visited South West Africa on
two occasions during 1965 and had given particular attention to the
facilities in question. He described his findings with regard to these
installations in detail and concluded that neither of them could, in his
opinion, be regarded as a military base.

8. Another reason why I consider that the said facilities cannot be
regarded as military bases, within the meaning of Article 4 of the Man-
date, is that the said Article itself does not prohibit, but on the contrary
by implication permits, the training of the European inhabitants of the
Territory as well as the training of the Natives for certain limited purposes,
i.e., for internal police and local defence. It must have been contemplated
that there would be training of inhabitants of the Territory at least
for internal police and local defence purposes and, which is a necessary
corollary, that there would be facilities for such training. It is, therefore,
inconceivable that the prohibition against military bases in Article 4
was intended to extend to ordinary training facilities such as those
provided for members of the Regiment Windhoek or to facilities such
as the landing strips at Ohopoho and elsewhere, which are used mainly
for administrative purposes but occasionally also by military aircraft,
inter alia, for the training of air force personnel.

9. As J have mentioned, Applicants in their pleadings advanced
arguments contrary to the above conclusions.

At one stage they suggested that the facilities in question were military
bases inasmuch as they were, according to Applicants, not intended
for “police protection or internal security” 1.

There is no substance in this contention, which appears to have been

1 Memorials, pp. 182-183.
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based on a misinterpretation of the sentence in Article 4 which deals
with the military training of Natives. Inasmuch as there is no training of
Natives in South West Africa, the qualification which Applicants sought
to apply in their Memorials relative to the establishment of military
bases was misplaced. And, in any event, there is no evidence that the fa-
cilities in question were intended for, or are used for, any military pur-
poses other than for internal police and the local defence of the Territory.

At another stage the Applicants submitted that only Natives could
lawfully be trained for police and local defence purposes, and they even
went so far as to suggest that Article 4 would have been violated unless
Respondent could confirm “that there [is] not in the entire territory a
single soldier or sailor on the active list” +. I do not intend to deal with
these arguments, which in my opinion are, to say the least, fanciful and
baseless. Suffice it to say that neither the Mandate for South West
Africa, nor any other mandate, prohibited the military training of non-
Natives, and there is undisputed evidence before the Court that a large
number of non-Natives were in fact trained and used in the forces
stationed in the other African mandated territories during the lifetime
of the League.

10. Before proceeding to deal with a further contention advanced
by Applicants in the oral proceedings, I wish to draw attention to certain
factual allegations which were introduced by Applicants for the first time
in their Reply.

Under a heading “Military Activity in General’? Applicants for the
first time charged in their Reply that Respondent had—

**,. created a situation where there is the equivalent of a series of
military bases or potential military bases in the Territory or at
worst, where the Territory iself and its ‘White’ inhabitants have
become armed and co-ordinated to the extent that the Territory.
has been transformed into a ‘military base’ within the meaning
and intent of the Covenant and the Mandate”.

In my view it is impermissible for an Applicant to introduce an entirely
new complaint of this kind in its Reply. The procedure of this Court
requires that the Applicants’ cause of action should be set out in the
Application and Memorial. This requirement is not a mere procedural
technicality—if new. causes of action are allowed to be introduced at
later stages of the proceedings it becomes impossible for the parties
to deal fully therewith prior to the conclusion of the written proceedings.
Each party should have the opportunities contemplated in the Rules
of Court for dealing with the contentions of the other party. The Court
itself is, to put it at its lowest, inconvenienced if, as happened in the
present case, there is at the commencement of the oral proceedings no
certainty as to the areas of agreement or dispute between the parties.
In my view such a situation militates against the proper administration

1 Reply, p. 340.
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of justice, and should not be countenanced. In the present case it would
seem, in view of what is stated hereinafter, that Applicants did not in
the oral proceedings persist in this omnibus charge. They certainly made
no mention of it or of the factual allegations embodied therein. There is,
however, no certainty in this regard in view of the vague and unparticu-
larized manner in which Applicants finally reformulated their Submission
No. 6—also a matter to which reference is made hereinafter. Whatever
the position may be in this regard, it is clear on the evidence that there
could be no merit in the charge. At the conclusion of his evidence General
Marshall was asked whetherthere was anything which he saw in South West
Africa which, in his opinion, could be regarded as a military base, or
whether the territory as such could be regarded as a military base.

His reply was: “My answer is no. May I add that the Territory is less
militarized and more under-armed than any territory of its size I have
ever seen in the world.”

The witness’s conclusions were not attacked by Applicants, either
in cross-examination or in comment on the evidence, and, of course, no
evidence whatsoever had been led by the Applicants. In my view, there
can be no reason for not accepting General Marshall’s evidence and
opinions. Indeed, Applicants’ Agent himself referred to the “first-hand
authentic and undoubtedly correct factual statement” concerning what
General Marshall saw on his inspection.

11. The only contention advanced by Applicants in the oral pro-
ceedings relative to their charges regarding militarization was to the
effect that modern military science had progressed to the stage where
the Territory could be effectively militarized within a short period, and
that, in the absence of administrative supervision, Respondent must
consequently be deemed to be guilty of a violation of Article 4 of the
Mandate. It was apparently in pursuance of this new contention that
Applicants’ Submission No. 6 was amended to read as follows:

“Respondent has established military bases within the Territory
in violation of its obligations as stated in Article 4 of the Mandate
and Article 22 of the Covenant; that Respondent has the duty
forthwith to remove all such military bases from within the Territory
and that Respondent has the duty to refrain from the establishment
of military bases within the Territory.”

It will be noted that (similarly to the position in respect of Applicants’
reformulated Submission No. 5) the reformulated Submission No. 6
omits specific identification of any acts or installations. It is true that
the reformulated submissions were all made “upon the basis of alle-
gations of fact and statements of law set forth in the written pleadings
and oral proceedings herein’’. It is, however, not clear which of the charges
the Applicants are persisting in, particularly in view of the fact that
their charges in the pleadings included a charge, dealt with in paragraph
10, supra, to the effect that the whole of South West Africa had become

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transformed into a military base. And if, as Applicants explained in
the oral proceedings, the basis of their complaint is lack of administrative
supervision, what criterion is there for determining whether any of
the particular installations or facilities referred to in the pleadings, or any
otherinstallations or facilities in the Territory, are or are not military bases?

In any event, if we have regard to the informal statement by Appli-
cants’ Agent in the oral proceedings as to what the Applicants’ case
really is, the complaint appears to be that Respondent would, in the
absence of international supervision, be able to militarize the Territory
without anybody being aware thereof. This line of argument clearly
provides no support for a contention that “Respondent has established
military bases within the Territory”, nor does it in fact suggest any other
violation of Article 4 of the Mandate.

12. For the reasons aforestated, I find that there is no substance in
Applicants’ charges relative to Article 4 of the Mandate.

The Alleged Duty to Transmit Petitions
(Applicants’ Submission No. 8)

1. I have already expressed the view that, apart from other grounds,
this submission should be dismissed also on the ground that Article 6 of
the Mandate Declaration, which provided for the duty to report and
account, no longer applies. However, even if Article 6 were still in force,
the result would, in so far as Submission No. 8 is concerned, in my view,
be the same. Neither Article 6, nor any other provision of the Mandate,
required the Mandatory to transmit petitions to the Council or any
other organ of the League. The procedure of submitting petitions through
the mandatories arose as a result of rules of procedure drafted by the
Council in 1923. (League of Nations, Official Journal, 1923 (No. 3),
p. 300.) It is clear that these rules could not impose on the mandatories
an obligation not provided for in the Mandate Declarations or in Article
22 of the Covenant. And, indeed, the said rules did not purport to do
so. These rules were designed for the protection of the mandatories
against frivolous or one-sided petitions by ensuring that the mandatories
would have an opportunity of commenting on them before they were
considered by the League. For this reason the rules provided that pe-
titions emanating from the inhabitants of a mandated territory were not
to be sent direct to the Council, but were to be transmitted through the
mandatory concerned; thus enabling the mandatory to attach such
comments as it might think desirable. And in respect of petitions ema-
nating from any source other than the inhabitants themselves, the
mandatory was to be asked for its comment before such petitions were
considered by the Permanent Mandates Commission.

These rules of procedure were therefore not intended to impose obli-
gations on the mandatories but rather to provide them with the oppor-
tunity of making timely comments on the allegations made in petitions
to the League.

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However, even if the Council’s rules of procedure could in some way
or another have given rise to an obligation on the part of the mandatories,
such an obligation could, in any event, not be described as an obligation
embodied in the “provisions of the Mandate’. It follows that the Court
would, in any event, not have jurisdiction in terms of Article 7 (2) of
the Mandate to entertain disputes regarding the alleged violation of
such an obligation.

2. In my view these are additional reasons why Applicants’ Submission
No. 8 should be dismissed.

Article 7, Paragraph 1, of the Mandate
(Applicants’ Submission No, 9)

1. Little need be said about Submission No. 9. As in the case of
Applicants’ Submissions Nos. 5 and 6, which have been dealt with above,
Submission No. 9 initially particularized Respondent’s alleged conduct
which was contended to be in conflict with Article 7 (1) of the Mandate.
In the Memorials, Submission No. 9 read a follows:

“,.. the Union, by virtue of the acts described in Chapters V, VI,
VII and VIII of this Memorial coupled with its intent as recounted
herein, has attempted to modify substantially the terms of the
Mandate, without the consent of the United Nations; that such
attempt is in violation of its duties as stated in Article 7 of the Man-
date and Article 22 of the Covenant; and that the consent of the
United Nations is a necessary prerequisite and condition precedent
to attempts on the part of the Union directly or indirectly to modify
the terms of the Mandate”.

2. Also in respect of this submission, Applicants were forced to
effect an amendment as a result of their admission of all the facts as
set forth in Respondent’s pleadings. These admitted facts disproved
the allegations upon which the submission was based, and the Applicants
accordingly deleted all the references made in the submission as originally
formulated to the acts described in Chapters V, VI, VIT and VIII of the
Memorials as well as references to Respondent’s alleged intent. In the
result also this submission has become so vague as to be meaningless.
Tt follows that, in my view, no declaration can be made as requested in
this submission.

3. There are, however, also other grounds for reaching the same
conclusion. On the dissolution of the League of Nations, Article 7 (1),
in my view, lapsed in the same way, and for substantially the same
reasons, as Article 6, with which J dealt above. It follows that, even if
the Mandate were still in existence as an institution, Article 7 (1) would
no longer be in force. In my view no agreement has been concluded.
Neither the United Nations nor any one of its organs has stepped into
the shoes of the League Council as the authority whose consent is required
for modification of the terms of the Mandate.

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4. In conclusion, I may add that Applicants in their final address
to this Court relied solely on Respondent’s refusal to submit to inter-
national supervision as a ground for contending that a declaration should
be made in terms of Submission No. 9. My view in this respect is similar
to that which J have expressed with regard to other submissions in support
of which the same contention was advanced, namely that, even if Appli-
cants would be entitled to a declaration in terms of their Submission
No. 2, that would not, in my view, justify a declaration that Respondent
has violated other provisions of the Mandate, for example, that Res-
pondent has attempted to modify the terms of the Mandate in contra-
vention of Article 7 (1) thereof.

(Signed) J.T. VAN WYK.

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