325

DISSENTING OPINION OF JUDGE JESSUP
SECTION I. INTRODUCTORY

Having very great respect for the Court, it is for me a matter of pro-
found regret to find it necessary to record the fact that I consider the
Judgment which the Court has just rendered by the casting vote of the
President in the South West Africa case, completely unfounded in law +.
In my opinion, the Court is not legally justified in stopping at the thres-
hold of the case, avoiding a decision on the fundamental question
whether the policy and practice of apartheid in the mandated territory
of South West Africa is compatible with the discharge of the “sacred
trust” confided to the Republic of South Africa as Mandatory.

Since it is my finding that the Court has jurisdiction, that the Appli-
cants, Ethiopia and Liberia, have standing to press their claims in this
Court and to recover judgment, I consider it my judicial duty to examine
the legal issues in this case which has been before the Court for six years
and on the preliminary phases of which the Court passed judgment in
1962. This full examination is the more necessary because I dissent not
only from the legal reasoning and factual interpretations in the Court’s
Judgment but also from its entire disposition of the case. In regard to
the nature and value of dissenting opinions, I am in complete agreement
with the views of a great judge, a former member of this Court—the
late Sir Hersch Lauterpacht—who so often and so brilliantly contributed
to the cause of international law and justice his own concurring or
dissenting opinions; I refer to section 23 of his book, The Development
of International Law by the International Court, 1958. He quotes, with
evident approval (in note 10 on p. 66), the “clear expression” of Charles
Evans Hughes who was a member of the Permanent Court of Inter-
national Justice and later Chief Justice of the United States: “A dissent
in a court of last resort is an appeal to the brooding spirit of the law, to
the intelligence of a future day, when a later decision may possibly
correct the error into which the dissenting judge believes the court to

1 In my view, whenever the Court renders judgment in accordance with its
Statute, the judgment is the judgment of the Court and not merely a bundle of opin-
ions of individual judges. This is equally true when, in accordance with Article 55
of the Statute, the judgment results from the casting vote of the President. I do not
consider it justifiable or proper to disparage opinions or judgments of the Court
by stressing the size of the majority. If the Court followed the prevailing European
system, the size of the majority would not be known. Throughout this opinion I
shall refer to the judgment of the Court, and not to the opinion of seven of its
members. Of course this is not to say that there is any impropriety in comments
by a member of the Court on views expressed in the separate concurring or dissenting
opinions of present or past members of the Court.

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have been betrayed.” It is not out of disrespect for the Court, but out of
respect for one of its great and important traditions, that, when neces-
sary, I express my disagreement with its conclusions. It is the first time
since I have been a member of the Court that I have found it necessary
to dissent.

The Court’s Judgment rests, as it must, on an interpretation of histori-
cal facts involved in the origin and in the operation of the mandates
system of the League of Nations, in the setting of their period. Since my
own study of the historical record, both of the time of the Paris Peace
Conference and subsequently through the years up to 1939, leads me to
believe that the Judgment misconceives the nature of the peace settlements
at the close of World War I, the nature and functioning of the League of
Nations, and the nature and functioning of the mandates system, I must
expound my conclusions on these matters.

The Court’s Judgment says that it “must decline to give effect” to
the claims of the Applicants; this conclusion naturally rests on the
Court’s analysis of what those claims are. Since I interpret differently
the nature of Applicants’ claims and submissions, I must show wherein
my interpretation differs, having regard to their character and context.
Only when those matters are properly understood, is it possible for me
to reach a judicial conclusion whether Applicants have the legal right
or interest to entitle them to receive from the Court what they request,
or any part of what they request.

The Judgment bases itself on a reason not advanced in the final
submissions of the Respondent—namely on Applicants’ lack of “any
legal right or interest appertaining to them in the subject-matter of the
present claims”. This is said to be a question of the “merits” of the
claim and it is therefore in connection with the “merits” that the nature
of the requisite legal right or interest must be analysed.

The Judgment states that the—

“_,. same instruments are relevant to the existence and character
of the Respondent’s obligations concerning the Mandate as are
also relevant to the existence and character of the Applicants’
legal right or interest in that regard. Certain humanitarian principles
alleged to affect the character of the Mandatory’s obligations in
respect of the inhabitants of the mandated territory were also
pleaded as a foundation for the right of the Applicants to claim in their
own individual capacities the performance of those same obligations.
The implications of Article 7, paragraph 1, of the Mandate ..

require to be considered not only in connection with paragraph 9
and certain aspects of paragraph 2 of the Applicants’ final sub-
missions, but also, as will be seen in due course, in connection
with that of the Applicants’ standing relative to the merits of the
case. The question of the position following upon the dissolution of

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the League of Nations in 1946 has the same kind of double aspect,
and so do other matters.”

If—as is the case—my analysis of these “same instruments”, “principles”
and “the position following upon the dissolution of the League of
Nations”, leads me to a conclusion different from that reached by the
Court, I must, with all respect, explain my chain of reasoning and why
it leads me to the conclusion that the Applicants do have the requisite
“legal right or interest”.

At the same time it must be stated that there are aspects of the manifold
issues, both procedural and substantive, presented in this case, which
cannot be disposed of in a dissenting opinion, as, for example, a detailed
appraisal of the relevance and materiality of all of the testimony of the
14 witnesses. Since the Court does not reach such issues as these, which
were not and could not be definitively resolved during the course of
the oral proceedings, the record cannot be taken as having precedental
authority.

This is the fifth time the Court has given consideration to legal matters
arising out of the administration by the Republic of South Africa of
the mandated territory of South West Africa. In the course of three
Advisory Opinions rendered in 1950, 1955 and 1956, and in its Judgment
of 21 December 1962, the Court never deviated from its conclusion
that the Mandate survived the dissolution of the League of Nations
and that South West Africa is still a territory subject to the Mandate.
By its judgment of today, the Court in effect decides that Applicants
have no standing to ask the Court even for a declaration that the territory
is still subject to the Mandate.

The case now decided by the Court was brought before the Court
by Applications of Ethiopia and Liberia on 4 November 1960. The
Court joined the two actions by an Order of 20 May 1961.

On 30 November 1961 the Respondent—the Government of South
Africa—filed preliminary objections. The Applicants designated an
ad hoc Judge and the Respondent did likewise. Oral arguments were
heard on 2-5, 8-11, 15-17 and 19 and 22 October 1962.

In its Judgment of 21 December 1962 the Court decided that “‘it
has jurisdiction to adjudicate upon the merits of the dispute”.

In reaching that conclusion the Court had to reject the four prelimi-
nary objections filed by the Respondent. It did reject the four objections
and thereby substantially held:

(1) that the Mandate for South West Africa is a “treaty or convention
in force” within the meaning of Article 37 of the Statute of the Court;

(2) that despite the dissolution of the League, Ethiopia and Liberia had
locus standi under Article 7, paragraph 2, of the Mandate, to invoke
the jurisdiction of the Court;

(3) that the dispute between the Applicants and the Respondent was a
“dispute” as envisaged in Article 7, paragraph 2, of the Mandate; and

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(4) that the prolonged exchanges of differing views in the General
Assembly of the United Nations constituted a “negotiation” within
the meaning of Article 7, paragraph 2, of the Mandate and revealed
that the dispute was one which could not be settled by negotiation
within the meaning of that same provision of the Mandate.

Under Article 60 of the Statute of the Court, this Judgment of 1962
is “final and without appeal’’. Under Article 94, paragraph 1, of the
Charter of the United Nations, both parties to the case were under
a duty to comply with this decision of the Court.

After the 1962 Judgment, the Respondent filed its Counter-Memorial
in ten volumes plus one supplementary volume. The Applicants in
turn filed their Reply and the Respondent filed its Rejoinder in two
volumes supplemented by other materials, including the so-called
Odendaal Report of 557 printed foolscap pages.

Beginning on 15 March 1965, the Court devoted 99 public sessions
to oral hearings which included the arguments of Agents and Counsel
for both Parties and the testimony of 14 witnesses.

The voluminous record was studied by the Court and its deliberations
were held over a period of some six months.

The Court now in effect sweeps away this record of 16 years and,
on a theory not advanced by the Respondent in its final submissions of
5 November 1965, decides that the claim must be rejected on the ground
that the Applicants have no legal right or interest.

The Applicants have not asked for an award of damages or for any
other material amend for their own individual benefit. They have in
effect, and in part, asked for a declaratory judgment interpreting certain
provisions of the Mandate for South West Africa. The Court having
decided in 1962 that they had standing (locus standi) to bring the
action, they are now entitled to a declaratory judgment without any
further showing of interest.

Allowing for the factual differences, the following passage from the
separate opinion of Judge Sir Gerald Fitzmaurice in Northern Cameroons
(LCS. Reports 1963, p. 99) is apt here:

“By not claiming any compensation, the Applicant State placed
itself in a position in which, had the Court proceeded to the merits,
the Applicant could have obtained a judgment in its favour merely
by establishing that breaches of the Trust Agreement had been
committed, without having to establish, as it would otherwise have
had to do (ï.e., if reparation had been claimed) that these breaches
were the actual and proximate cause of the damage alleged to have
been suffered—that is the incorporation of the Northern Cameroons
in the Federation of Nigeria rather than in the Republic of Came-
roon; without, in short, having to establish the international
responsibility of the United Kingdom for this outcome.”

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The learned Judge concluded his remarks on this particular point
by saying:

“It is not the task of an international tribunal to apportion
blame in vacuo, or to find States guilty of illegalities except as a
function of, and relative to a decision that these have been the
cause of the consequences complained of, for which the State
concerned is accordingly internationally responsible; or except in
relation to a still continuing legal situation in which a pronouncement
that illegalities have occurred may be legally material and relevant.”
(Loc. cit., p. 100.)

The words which I have emphasized describe the situation in the instant
South West Africa case.

Paragraph 2 of Article 7 of the Mandate gave a member of the League
the right to submit to the Court a dispute relating to the interpretation
of the provisions of the Mandate if the dispute cannot be settled by
negotiation. As I shall show in more detail later, the Court in 1962
decided that the Applicants qualify in the category ““Member of the
League”; this is res judicata and the Court’s Judgment of today does
not purport to reverse that finding. The Court in 1962 equally held
that the present case involves a dispute which cannot be settled by
negotiation; this double finding has the same weight and today’s decision
does not purport to reverse that finding. I do not understand that it
is denied that the dispute refers to the interpretation of provisions of
the Mandate. I do not see how this clear picture can be clouded by
describing the claims as demands for the performance or enforcement
of obligations owed by the Respondent to the Applicants. The submis-
sions may indeed involve that element also, as will be noted, but this
element does not exclude the concurrent requests for interpretation of
the Mandate.

Whether any further right, title or interest is requisite to support
Applicants’ requests in this case for orders by the Court directing
Respondent to desist from certain conduct alleged to be violative of
its legal obligations as Mandatory, may well be a separate question,
but the Judgment of the Court denies them even the declaratory judg-
ment. It may however be said that if the Court, properly seised, finds
and declares that Respondent is violating its legal obligations in the
administration of the Mandate, there is no reason in the Court’s Statute
or in general juridical principles, which would prevent it from ordering
the Respondent to desist. But the Permanent Court and this Court
have not usually framed their judgments in this fashion. Under the
Statute of this Court, as already noted, the Court’s judgment “‘is final
and without appeal”. By Article 94 of the Charter, “each Member of
the United Nations undertakes to comply with the decision of the
International Court of Justice in any case to which it is a party”. If the
Court in its judgment holds that a certain line of conduct is in violation
of a State’s legal obligations, that State is under a duty to comply with

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the decision by desisting from the illegal conduct. The Court should
not act upon an assumption that a State Member of the United Nations
would violate its obligation under Article 94. It may be recalled that
in the very first judgment rendered by the Permanent Court of Inter-
national Justice, it refused Applicants’ request that it award “interim
interest at a higher rate in the event of the judgment not being complied
with at the expiration of the time fixed for compliance. The Court
neither can nor should contemplate such a contingency.” (S.S. Wimble-
don, P.C.I.J., Series A, No. 1 (1923), p. 32.)

Since a dissenting opinion does not speak for the Court, there is no
need for me to explore in detail the separate issue whether the Court,
if it had reached the real merits of the case, should have granted requests
to order Respondent to do or to cease to do certain things indicated
in the submissions of the Applicants. Had the Court dealt with those
matters, it would have had to consider a great deal of factual material.
One of the clearest factual issues related to the sixth submission which
alleged that Respondent had established military bases within the
Territory; the testimony of one of Respondent’s witnesses proved to my
satisfaction that this charge of the Applicants was completely without
foundation. In the fourth submission, Applicants make general reference
to “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 ...’’. In appraising
this submission, the Court would, if it were considering issuing an order
to cease and desist, have had to determine whether any changes had been
introduced by the Respondent since the Applications in this case were
filed with the Court on 4 November 1960. I do not pretend to make a
finding on the evidence, but it appears to me probable that the Court
would have found that Respondent, perhaps responsive to the general
condemnation of its administration of South West Africa, has introduced
numerous improvements and ameliorations. This does not mean that
it has abandoned the policy of apartheid (which is covered by Appli-
cants’ Submission No. 3), nor does it mean that the Court, in a finding
whether certain policies or measures were in conformity with the obli-
gations of the Mandatory, could have overlooked the “critical date”
which was the date of the filing of the Applications.

The Judgment of the Court today does not constitute a final binding
judicial decision on the real merits of the controversy litigated in this
case. In effect reversing its Judgment of 21 December 1962, it rejects the
Applicants’ claims in limine and precludes itself from passing on the
real merits. The Court therefore has not decided, as Respondent sub-
mitted, “that the whole Mandate for South West Africa lapsed on the
dissolution of the League of Nations and that Respondent is, in conse-
quence thereof, no longer subject to any legal obligations thereunder”.

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Further, the Court has not decided, as submitted by the Respondent
in the alternative, that the Mandatory’s former obligations to report,
to account and to submit to supervision had lapsed upon the dissolution
of the League of Nations.

The Court has not rendered a decision contrary to the fundamental
legal conclusions embodied in its Advisory Opinion of 1950 supple-
mented by its Advisory Opinions of 1955 and 1956 and substantially
reaffirmed in its Judgment of 1962.

Even more important is the fact that the Court has not decided that
the Applicants are in error in asserting that the Mandatory, the Republic
of South Africa, has violated its obligations as stated in the Mandate
and in Article 22 of the Covenant of the League of Nations. In other
words, the charges by the Applicants of breaches of the sacred trust
which the Mandate imposed on South Africa are not judicially refuted
or rejected by the Court’s decision.

Nevertheless, the reasoning of the Court and its conclusions on
certain underlying questions of fact and of law, require an examination
into aspects of all of these questions, as this opinion will demonstrate.

SECTION IJ. THE FINALITY OF THE COURT’S PREVIOUS PRONOUNCEMENTS
The Judgment of 1962

I do not think it would be adequate to rest on the finalities of the 1962
Judgment of this Court. But I shall briefly indicate the legal principles
which dictate attributing more authority to the prior decisions and
opinions of this Court than the Court’s present decision seems to reveal.

To dispel the fallacy that no decision on a preliminary objection can
have finality, and as a preliminary matter of clarifying terminology, one
may note that Article 94 (1) of the United Nations Charter uses the
word “decision” in English and “décision” in French. In Article 94 (2)
the terms are “judgment” and “arréf” 1. In Article 63 (2) of the Court’s
Statute one finds “judgment” rendered in French as “‘sentence” and in
Article 41 (2) of the Statute, “decision’’ is “arrét’’ in French. In the
Rules of Court, No. 64 (6) speaks of a “decision ... in the form of a
judgment” {la Cour statue sur la requête par un arrêt). The same expres-
sions in both languages are found in Article 81 of the Rules. In Rule 62 (5),

1 Article 94 of the Charter:

“1. Each Member of the United Nations undertakes to comply with the decision
of the International Court of Justice in any case to which it is a party.

2. If any party to a case fails to perform the obligations incumbent upon it
under a judgment rendered by the Court, the other party may have recourse to the
Security Council, which may, if it deems necessary, make recommendations or
decide upon measures to be taken to give effect to the judgment.”

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dealing with preliminary objections, the English text speaks of a “‘deci-
sion” and the French text again uses “statue”. The “decision” (to use the
term in Article 26 (5) of the Rules), of 21 December 1962 is labelled a
“judgment” and recites at the outset (p. 321) that the Court “delivers the
following Judgment” (“arrét” ).'This use of the term ‘“‘judgment”’ (“‘arrér’’)
is found in every ruling of the Court on a preliminary objection, be-
ginning with the Corfu Channel case (I.C.J. Reports 1947-1948, p. 15)
down through Barcelona Traction (I.C.J. Reports 1964, p. 6). After
analysing passages in the Asylum case, Rosenne writes (The Law and
Practice of the International Court, 1965, Vol. IE, p. 627):

“This, it is submitted, leads to the conclusion that the word
‘decision’ (décision) appearing in Article 59 of the Statute is identical
in meaning with the word ‘judgment’ (arrét) appearing in Article 60,
and refers not merely to the operative clause (dispositif) of the
judgment, but to its reasons as well. This is clearly the case as
regards the meaning of the word ‘judgment’ (sentence) appearing in
Article 63.”

There is no clear distinction between “decision” and “judgment”—
the terms can be used interchangeably. Accordingly, after 21 December
1962, some obligation with respect to the judgment of that date must have
rested upon Applicants and Respondent under Article 94 (1) of the
Charter. I shall consider below with what either Party was now obliged
“to comply” (à se conformer). Under Article 60 of the Statute, the
Judgment of 21 December 1962 was “‘final and without appeal” although
(under Article 59) it “has no binding force except between the parties and
in respect of that particular case”. Within the meaning of Article 59, the
present proceedings are in “‘that particular case”. The words in Article 60
“without appeal” clearly refer only to the parties; if they are dissatisfied
with the judgment, they may seek a revision under Article 61 of the
Statute if they are able to satisfy the conditions stated in that Article.
The word in Article 60, “final”, may have a broader significance and may
address itself to the Court as well as to the parties. Since Respondent has
not proceeded in accordance with Article 78 ff. of the Rules of Court, and
has not avowedly sought a “revision” of the 1962 Judgment I do not
consider that there is before the Court a case under Article 61 of the
Statute, despite Respondent’s arguments about “‘new facts” (with which
I shall deal later).

The statement in Article 60 of the Statute that “the judgment is final
and without appeal”, taken in conjunction with the reference in Article
59 to “that particular case”, constitutes a practical adoption in the
Statute of the rule of res judicata, a rule, or principle, cited in the proceed-

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ings of the Commission of Jurists which drafted the Statute of the
Permanent Court of International Justice in 1920, as a clear example of
“a general principle of law recognized by civilized nations”. It rests upon
the maxim interest rei publicae ut sit finis litium, or in an alternate form,
interest rei publicae res judicatas non rescindi. Judge Anzilotti, in what has
been called “the classic enunciation of the law” (Rosenne, op. cit., p. 624)
listed as the essentials for the application of the res judicata principle,
identity of parties, identity of cause andidentity of object in the subsequent
proceedings—‘“‘persona, petitum, causa petendi”. (Interpretation of Judg-
ments Nos.7 and 8 (Factory at Chorzéw), Judgment No. 11, 1927, P.C.L.J.,
Series A, No. 13, pp. 23-27.) These essentials are found in the matter
before us. This leads again to the conclusion that something must have
been finally decided by the 1962 Judgment.

But the rule in Article 60 of the Statute “cannot ... be considered
as excluding the tribunal from itself revising a judgment in special
circumstances when new facts of decisive importance have been dis-
covered ...”. (Effect of Awards of Compensation Made by the United
Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954,
p. 47 at p. 55.) Moreover, the Court is always free, sua sponte, to examine
into its own jurisdiction.

Various pronouncements in the jurisprudence of the two Courts, in
various separate opinions and in the “teachings of the most highly
qualified publicists’ do not provide an automatic test to determine
what is within and what is without the res judicata rule. I agree with
Anzilotti in the opinion already cited (at p. 24):

“When I say that only the terms of a judgment (Je dispositif de
l'arrêt) are binding, I do not mean that only what is actually
written in the operative part (dispositif) constitutes the Court’s
decision. On the contrary, it is certain that it is almost always
necessary to refer to the statement of reasons to understand clearly
the operative part and above all to ascertain the causa petendi.”

The Court itself in the same case clearly held (at p. 20) that the
“findings” on which was based the “conclusion, which has now indis-
putably acquired the force of res judicata” —“findings” which “constitute
a condition essential to the Court’s decision” —were among the points
“possessing binding force in accordance with the terms of Article 59 of
the Statute” +.

1 The complete applicable passage is as follows: “As has been recalled above,
the Court, by that judgment, decided that the attitude of the Polish Government
in regard to the Oberschlesische was not in conformity with the provisions of the
Geneva Convention. This conclusion, which has now indisputably acquired the
force of res judicata, was based, amongst other things, firstly, on the finding by the
Court that, from the standpoint of international law, the German Government
was perfectly entitled to alienate the Chorzéw factory, and, secondly, on the finding
that, from the standpoint of municipal law, the Oberschlesische had validly acquired
the right of ownership to the factory---and these findings constitute a condition
essential to the Court’s decision. The finding that, in municipal law, the factory did
belong to the Oberschlesische is consequently included amongst the points decided

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The Permanent Court in another case indicated that reasons which
do not go beyond the scope of the operative part (dispositif) are binding.
(Polish Postal Service in Danzig, P.C.I.J., Series B, No. 11, p. 29.) But
it is clear that not every reason or argument given by the Court in
support of the decision is part of the res judicata.

Paragraph 3 of Article 62 of the Rules of Court provides: “Upon
receipt by the Registrar of a preliminary objection filed by a party,
the proceedings on the merits shall be suspended ...” On the basis
of this provision it is argued that if the Court in delivering judgment
on a preliminary objection—whether to jurisdiction or to admissibility—
touches on any matter which pertains or appertains to the merits, what
it says is just obiter dicta. This argument is based on a misconception
of the Rule, as its history reveals. It was in the revision of the Rules
by the Permanent Court of International Justice in 1936 that there was
inserted the provision that ‘proceedings on the merits shall be suspended’’.
Before that, the Rules contained no such provision. The discussion
of the matter in the Court shows that the entire concern was focused
on the problem of the time-limits which the Court would already have
fixed for the main proceedings. It was noted that extensions would
probably have to be granted if the Court overruled the preliminary
objection. Thus Judge Fromageot proposed inserting in paragraph 3 the
words “the time-limits originally fixed for the proceedings on the merits
shall be suspended”’. (P.C.LJ., Series D, Third Addendum to No. 2, p. 706.)
When it was suggested by another member of the Court “that the
proceedings on the merits were suspended as from the submission of the
objection”, Judge Fromageot revised his phrasing to read: “From that
moment, the time-limits originally fixed for the proceedings on the
merits shall be suspended.” Thereafter “The Registrar pointed out that
there was not, strictly speaking, a suspension of the time-limits. What
was suspended was the obligation of the parties to file a particular written
Memorial by a given date.” (Ibid., p. 707; italics added.) Judge Fromageot
then at once proposed the phrasing ultimately adopted: ‘The proceedings
on the merits shail be suspended.”

It is perfectly clear that the provision of the Rule in question was
purely a matter of administrative procedure having to do with the
setting of time-limits and was not conceived to have the substantive
implications now sought to be attributed to it. The Court’s Judgment
of today presses the new theory further than it has been pressed before; it
is now pressed too far and the historical origin of the Rule must be recalled.

by the Court in Judgment No. 7, and possessing binding force in accordance with
the terms of Article 59 of the Statute. The very context in which the passage in ques-
tion occurs is calculated to establish the right of ownership of the Oberschlesische
from the standpoint of municipal law.

The Court’s Judgment No. 7 is in the nature of a declaratory judgment, the in-
tention of which is to ensure recognition of a situation at law, once and for all and
with binding force as between the Parties; so that the legal position thus established
cannot again be called in question in so far as the legal effects ensuing therefrom
are concerned.” (P.C.IJ., Series A, No. 13, op. cit., p. 20.) (Italics added.)

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In proceedings on preliminary objections, the situation of the parties
is reversed. The Respondent, who advances the preliminary objection,
is called on first by the Court to state his case; the Applicant then res-
ponds, the Respondent replies and the oral proceedings close with the oral
rejoinder of the Applicant. On the merits, it is the Applicant who begins
and it is the Respondent who has the last word. That is why it is said:

“Preliminary objection proceedings ... now take the form of
a self-contained case (in which the objecting State appears as
applicant: /n excipiendo reus fit actor) incidental to the proceedings
on the merits . . .””’ (Rosenne, loc. cit., Vol. I, p. 464.)

The principle is a familiar one: Ballantine’s Law Dictionary (1930),
page 1138—“Reus excipiendo fit actor. The defendant by his plea may
make himself a plaintiff”. The Cyclopedic Law Dictionary, 3rd ed. (1940),
page 975—“‘The defendant, by a plea, becomes plaintiff’. Bell’s South
African Legal Dictionary, 3rd ed. (1951), page 21—“... he who avails
himself of an exception is considered a plaintiff; for in respect of his
exception, a defendant is a plaintiff’.

The Judgment of the Court in this preliminary phase is pronounced,
not on the claims of the Applicant, but on the submissions of the
Respondent.

In this case, in the stage of the preliminary objections, the Respondent’s
Agent on 11 October 1962 first read these submissions:

“the Mandate for South West Africa [has never been, or, at any
rate, is, since the dissolution of the League of Nations] is no longer
a ‘treaty or convention in force’ within the meaning of Article 37
of the Statute of the Court, this submission being advanced—

(a) with respect to the said Mandate as a whole, including Art-
icle 7 thereof, and
(b) in any event, with respect to Article 7 itself 1.”

These submissions required the Court to render judgment on this
point of law in one or the other alternative forms. The Court did render
judgment, finding that the Mandate, despite the dissolution of the
League, was a “treaty or convention in force” within the meaning
of Article 37 of the Statute, and that the validity of Article 7 was not
affected by that dissolution. (See South West Africa cases, I.C.J. Reports
1962, pp. 330 ff.)

These first submissions of Respondent were a direct challenge to the
jurisdiction of the Court by their impeachment of the validity of the
treaty clause (Article 7) by which’ Respondent had consented to the
jurisdiction of the Court.

1 The bracketed words were inserted in a revised submission of 22 October,
as aresult of a question posed to the Parties by Judge Sir Percy Spender. Cf. the
1962 Judgment at p. 330.

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336 SOUTH WEST AFRICA (DISS. OP. JESSUP)

J am at a loss to understand how the Court can say that the Court’s
disposal of these first submissions in its 1962 Judgment was merely
basing itself upon an hypothesis or some sort of provisional basis. No
such thought is expressed in the Court’s 1962 Judgment.

The second submission denied the locus standi of Applicants:

“Secondly, neither the Government of Ethiopia nor the Govern-
ment of Liberia is ‘another Member of the League of Nations’,
as required for locus standi by Article 7 of the Mandate for South
West Africa.”

On the basis of several different reasons, the Court dismissed this
objection (p. 342). This is a clear decision that Applicants have locus
standi and the point is res judicata.

The third submission argued that there was no “dispute” in the sense
of Article 7 because no material interests of the Applicants were involved:

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

The Court (p. 344) expressly decided that the objection must be dismissed
because there was a dispute within the meaning of Article 7. This
decision that the dispute could concern “the well-being and development
of the inhabitants” and need not include material interests of the Appli-
cants, is res judicata.

The fourth submission in effect argued that collective negotiations in
and through organs of the United Nations were not the kind of negotia-
tions contemplated in Article 7:

“Fourthly, the alleged conflict or disagreement is as regards
its state of development not a ‘dispute’ which ‘cannot be settled by
negotiation’ within the meaning of Article 7 of the Mandate for
South West Africa.”

The Court decided (p. 346) that there having been full collective nego-
tiation by one of the “established modes of international negotiation”,
this fourth objection must also be dismissed. The decision that this
type of negotiation satisfies the requirements of Article 7 is also res
judicata. |

The Judgment of the Court today concludes that all of these objections
are to be considered as objections to the jurisdiction. As explained in
the 1962 Judgment and as emphasized in the dissenting opinion of Judge
Morelli, they iriclude objections to the admissibility of the claim. The
distinction is well established in the jurisprudence of the Court.

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337 SOUTH WEST AFRICA (DISS. OP. JESSUP)

The decisions on these four points in the Judgment of 21 December
1962 are final under the provisions of Article 60 of the Statute and
Article 94 (1) of the Charter. It is argued, however, that there is nothing
with which a party can “comply” in decisions of this character. If
Article 60 and Article 94 (1) were indeed to be interpreted as applying
only to judgments calling for some affirmative step, the Articles would be
largely emasculated.

In Corfu Channel (I.C.J. Reports 1949, at p. 35), the Court decided
“that the action of the British Navy constituted a violation of Albanian
sovereignty’. This was a final judgment or decision and Article 94 (1)
applies to it although no action in implementation was required.

In United States Nationals in Moroéco (I.C.J. Reports 1952, at p. 213)
the Court decided that American nationals were not exempt from certain
taxes. This was a final decision and required no action in implementation
except acquiescence which is similarly required for judgments upholding
jurisdiction.

The decision of the Court in Northern Cameroons was final (1.C.J.
Reports 1963, p. 38) but required no implementation except acquiescence.
In any case, indeed, when preliminary objections are sustained (as in
Norwegian Loans (I.C.J. Reports 1957, p. 27)) no implementation by
the parties is required. But there is no basis for saying that Article 94 (1)
excludes all of these cases.

It should also be noted that by Article 61 (3) of the Statute, com-
pliance may be required by the Court before a revision is considered
even though this duty to comply may later be terminated if the judgment
is revised.

The Respondent’s duty of compliance under Article 94 (1) of the
Charter with respect to the judgment of 21 December 1962, was a duty
to acquiesce in the findings of the Court and to conduct itself ac-
cordingly. By pleading to the merits, Respondent recognized and ful-
filled its duty. When the Court decides that it has jurisdiction, a State
which denied the correctness of the Court’s decision, failed to plead
to the merits and maintained that a subsequent adverse judgment on
the merits was invalid, would violate its obligation under Article 94.
It may be arguable that Respondent’s first submission “that the whole
Mandate for South West Africa lapsed on the dissolution of the League
of Nations”, was inconsistent with the Judgment of 21 December 1962,
but this could be a matter of interpretation on which argument was
justifiable.

The Advisory Opinions on South West Africa

There has also been much discussion of the three Advisory Opinions
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338 SOUTH WEST AFRICA (DISS. OP. JESSUP)

given by the Court in regard to South West Africa. The Court invoked
them in 1962 and Respondent devoted considerable attention to them.
Although an Advisory Opinion or a series of such opinions, is not or
are not legally binding on a State Member of the United Nations, whether
or not the opinion is accepted and endorsed by the General Assembly,
I share the view stated by Judge John Bassett Moore and recalled with
approval by Judge Winiarski in his dissenting opinion in Peace Treaties
U.C.J. Reports 1950, pp. 89 and 91):

“If the opinions are treated as mere utterances and freely dis-
carded, they will inevitably bring the Court into disrepute: ... the
Court must, in view of its high mission, attribute to them great
legal value and a moral authority.”

So Judge Azevedo in the same case said that although an ordinary
advisory opinion did not produce the effects of res judicata, “that fact
is not sufficient to deprive an advisory opinion of all the moral con-
sequences which are inherent in the dignity of the organ delivering the
opinion, or even of its legal consequences” (p. 80).

On the basic point that the dissolution of the League did not terminate
the Mandate or Article 7 thereof as a provision of a convention in force,
the Court was unanimous in 1950 and no judge expressed a contrary
view in the giving of the Advisory Opinions of 1955 and 1956. The
Court having expressly reaffirmed this finding in 1962 (at p. 334), it
would indeed have been brought “into disrepute” if it should now have
attributed no weight to those prior views.

“It may be stated that the practical difference between the binding
force of a judgment, which derives from specific provisions of the
Charter and Statute apart from the auctoritas of the Court, and the
authoritative nature of an advisory opinion possessed of that same
auctoritas, are not significant.” (Rosenne, op. cit., Vol. II, p. 747.)

“In using judicial decisions as a ‘source of law’ by virtue of Ar-
ticle 38 (1) (d) of the Statute, no distinction at all is made between
judicial decisions given in the form of a judgment, and judicial decis-
ions given in the form of an advisory opinion. Recourse is equally
had to both types of judicial pronouncement.” (Ibid., p. 745, note 1.)

Judge de Visscher, while stating clearly that advisory opinions do
not involve the doctrine of chose jugée, adds: “Dans le plan de leur
autorité doctrinale, il n'y a guère de distinction à faire entre arrêts et
avis.” (Aspects récents du droit procédural de la Cour internationale de
Justice, 1966, p. 195.)

As already noted, the Court’s present judgment does not decide
that the Mandate or Article 7 thereof has lapsed and the authority of
the Court’s prior utterances on that subject remains unimpaired.

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339 SOUTH WEST AFRICA (DISS. OP. JESSUP)

SECTION JIT. RESPONDENT’S ALLEGATIONS OF “NEW FAacts’’

Respondent laid great stress on what were alleged to be certain “new
facts” which, it was argued, were so important that had they been known
to the Court in 1950, the Court would have reached conclusions dif-
ferent from those actually pronounced in the Advisory Opinion which
it gave in that year. Waiving the question whether this argument, as
advanced, evaded the provisions of the Statute and of the Rules of Court
concerning the revision of a prior decision, the so-called “new facts”
may be examined, since, if they were “new facts of decisive importance”,
the Court would certainly need to take them into account even if this
required some modification of conclusions previously reached. Some
of them bear on the issue of the survival of the Mandate, an issue which
cannot be ignored in this opinion. My examination does not lead me
to believe any revision of the statement in the Court’s Judgment of 1962
(p. 334) is called for: “All important facts were stated or referred to in
the proceedings before the Court in 1950.” The re-examination of some
of these facts reinforces previous conclusions.

Mutatis mutandis, the situation and conclusion are the same as those
stated by the Permanent Court of International Justice in the Monastery
of St. Naoum case with reference to proposed revision of a decision of
the Conference of Ambassadors:

“This decision has also been criticised on the ground that it
was based on erroneous information or adopted without regard
to certain essential facts ...

These arguments make it necessary for the Court to ascertain
whether, over and above the group of circumstances which led to
that decision, there exist new facts or facts unknown at the time
when the decision was taken; in other words, whether, as alleged
by the Serb-Croat-Slovene State and Greece, the Conference of
Ambassadors allocated the Monastery to Albania simply because
it was unacquainted with new facts, or unaware of facts already
in existence, which, if taken into consideration, would have led to
a contrary decision.

As concerns new facts, there are none in the present case. It is
true that... the Conference was unacquainted with the documents
sent by the Serb-Croat-Slovene State in support of its claim for
revision... But in the opinion of the Court fresh documents do
not in themselves amount to fresh facts. No new fact—properly
so-called—has been alleged.

As regards facts not known... [i]t is... difficult to believe that
the members of the Conference of Ambassadors were unacquainted
with these documents, which are in no sense secret.” (P.C.LJ,
Series B, No. 9, pp. 21-22.)

The “new facts” are listed as four in number in the Respondent’s
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340 SOUTH WEST AFRICA (DISS. OP. JESSUP)

Preliminary Objections at pages 345-346. In C.R. 65/7, 30 March 1965,
at pages 44 and 45, and C.R. 65/16, 12 April 1965, at pages 43 ff., the
first of the four ‘‘new facts” is omitted +.

The first “new fact” as listed in the Preliminary Objections is the so-
called express reservations made by the South African representative,
Mr. Smit, at San Francisco on 11 May 1945. In the Court’s 1950 volume
of Pleadings, etc., at page 114, the United States in its statement set
forth the entire text of the declaration by Mr. Smit except for the extra
paragraph which Respondent says is not in the official transcript but
which, before his death, Mr. Smit said was part of his statement. It is
doubtful whether this extra paragraph adds much to what is said in the
last three paragraphs of what is printed in the United States statement.
The United States statement adds a reference to United Nations, Official
Records; General Assembly, First Session, Second Part, Fourth Committee,
Part I (1946), 200, Annex 13. Doc. A/123 in this annex is a letter dated
17 October 1946 from the Legation of the Union of South Africa to
the Secretary-General. It contains a long memorandum on the admini-
stration of South West Africa which begins: “1. On 7 May 1945, the
delegation for the Union of South Africa informed the United Nations
Conference on International Organization, San Francisco, as follows:
...” Here follows the statement as set out in the Preliminary Objections
(at pp. 237-238) but the extra paragraph is not included.

According to the verbatim transcript of the meeting at which the
South African delegate made his statement, Running Number 33, the
delegate at the end of the prepared statement said: “That is all I have
to say.” There is no indication that the extra paragraph was pronounced,
and one is therefore led to conclude that Mr. Smit’s memory may have
been faulty 2.

The United States statement to the Court in 1950 noted that the re-
presentative of South Africa had subsequently referred to Mr. Smit’s
declaration as a “reservation”. It was said that he had circulated copies
of the statement on 7 May before reading it to the meeting. The statement
continues by referring to a speech by the South African representative
about this “‘reservation’’ at the second session of the General Assembly,
citing United Nations, A/P.V. 105 Plenary, 1947, 187-190 (final citation
105th Plenary, p. 635). The United States statement also said (p. 116):

“The effect of the ‘reservation’ was simply to give notice that
the Union of South Africa would later raise in a competent forum
the question of the future of South West Africa, with a view to
incorporation of that Territory in the Union.”

i The “C.R.” references in this opinion are to the daily verbatim transcripts,
the numbering and pagination of which will not be identical in the final printed
record (1.C.J. Pleadings).

? The acceptance of Mr. Smit’s recollection in the 1962 joint dissent at p. 533,
was perhaps too facile.

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341 SOUTH WEST AFRICA (DISS. OP. JESSUP)

This so-calied South African reservation was also discussed by Judge
Ingles of the Philippines at pages 251 ff. of the 1950 Pleadings. As stated
above, Respondent abandoned this “new fact’’.

The second “new fact” is the rejection by the Preparatory Commission
of the United Nations of a proposal for a temporary trusteeship com-
mittee. This event cannot be called “new” since it was discussed at
length by Dr. Kerno, representative of the Secretary-General 4, in the
1950 Pleadings before this Court at pages 161 ff. He gave explanations
why the proposal was rejected but the matter was argued at such length
in the present phase of the case that it is well to state the facts.

The Respondent seemed to attach importance to this alleged “new
fact” in connection with its arguments that the Mandate lapsed on the
termination or dissolution of the League of Nations and that the United
Nations refused to accept any responsibilities or authority in connection
with the territories which had been administered as mandates. Respon-
dent was presumably stimulated by the 1962 joint dissent, pages 536-
537, to make this argument.

By decision of the San Francisco Conference, a Preparatory Com-
mission met in London on 24 November 1945. It made a report which
was considered in the First Part of the First Session of the General
Assembly of the United Nations, which also met in London, beginning
on 10 January 1946. One of the matters considered was the establish-
ment of the machinery necessary to inaugurate the United Nations
trusteeship system. The account of what happened and the reasons
why it happened are to be found in the official records and in authoritative
contemporary reports.

The situation in the Preparatory Commission is summarized in the
commentary on its report as presented by the Secretary of State for
Foreign Affairs to the Parliament in London:

“Article 85 of the Charter... requires that the Trusteeship
Council shall advise the General Assembly on the terms of trustee-
ship proposed for non-strategic areas. On the other hand Article 86,
which defines the composition of the Trusteeship Council, lays
down that one-half of the members of the Council are to be the
States administering trust territories, and this presupposes that
the terms of trusteeship for such territories have already been ap-
proved. To resolve this dilemma the Executive Committee recom-
mended the creation, under Article 22 of the Charter, of a tempo-
rary Trusteeship Committee... Certain Delegations opposed this
solution on the grounds that it was unconstitutional, but it never-
theless secured the necessary two-thirds majority in the Executive
Committee. The Preparatory Commission, however, was unable
to reach agreement on this matter and its recommendation to the

1 Dr. Kerno, in 1946, had been Rapporteur for the Fourth Committee of the
General Assembly on Chapter IV (The Trusteeship System) of the Report of the
Preparatory Commission.

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342 SOUTH WEST AFRICA (DISS. OP. JESSUP)

Assembly is devoted almost entirely to the question of the action
to be taken by individual Member States to prepare terms of trustee-
ship. With regard to the question of United Nations machinery
the effect of the draft resolution is merely to defer any solution
until the meeting of the General Assembly itself...” (Cmd. 6734,
Misc. No. 5, 1946, p. 8.)

The same analysis of the situation is presented in the report of the
United States Delegation to the President of the United States:

“(e) Since establishment of the Trusteeship Council was de-
pendent upon prior negotiation of trusteeship agreements and
was therefore likely to be delayed for some time, the United States
concurred in a suggestion that a temporary trusteeship committee
of the Assembly might be instituted pending establishment of the
Council. Some others believed, on the contrary, that such a com-
mittee might tend to delay establishment of the Trusteeship Council
and might not even be constitutional. The United States, while
questioning the validity of the latter point, agreed that a temporary
committee was not essential and that the early conclusion of the
necessary trusteeship agreements to enable the Trusteeship Council
to be established should be encouraged. This view was finally
adopted.” (Department of State Publication 2484, 1946, p. 4.)

The thrust of Respondent’s argument about the non-inclusion of
the proposal for a temporary trusteeship committee is that this omission
proved that it was agreed that the United Nations had no responsibility
in regard to mandated territories. As indicated in the two foregoing
quotations, the British and United States Delegations reported that the
non-inclusion was due to arguments based upon the unconstitutionality
of the proposal and on the argument that the establishment of a tem-
porary committee might delay instead of expediting the conclusion of
trusteeship agreements. Since this point is important, it may be noted
that the Yearbook of the United Nations 1946-1947, at page 36, gives the
same explanation for the non-inclusion of the provision for a tem-
porary trusteeship committee.

The point of view of the United States delegation is further revealed
in an amendment which it proposed in the Preparatory Commission
on 4 December 1945 (Doc. PC/TC/11):

“1. The Report by the Executive Committee makes no provision
for any organ of the United Nations to carry out the functions of
the Permanent Mandates Commission. In Part III, Chapter IX,
dealing with the League of Nations there occurs the following state-
ment: ‘Since the questions arising from the winding up of the Man-
dates system are dealt with in Part III, Chapter IV, no recommen-
dation on this subject is included here.’ (Section 3, paragraph 5,
page 110.) No specific reference to the functions of the Permanent
Mandates Commission is to be found, however, in Part III, Chap-

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343 SOUTH WEST AFRICA (DISS. OP. JESSUP)

ter IV, relating to the trusteeship system. Section 2, paragraph 4,
of that Chapter (page 56) merely assigns to the Temporary Trustee-
ship Committee a general advisory function in this field: ‘(iv)
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.’

2. In order to provide a degree of continuity between the man-
dates 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 speci-
fically empowered to receive the reports which the mandatory
powers are now obligated to make to the Permanent Mandates
Commission. The existing obligations and rights of the parties
involved under the mandates system with respect to any mandated
territory continue in force until such territory is placed under trustee-
ship by an individual trusteeship agreement or until some other
international arrangement is made. To bridge any possible gap
which might exist between the termination of the mandates system
and the establishment of the trusteeship system, it would appear
appropriate that the supervisory functions of the Permanent Man-
dates Commission should be carried on temporarily by the organ
of the United Nations which is to handle trusteeship matters.

3. In order, therefore, that the report of the Preparatory Com-
mission may be complete in this respect the following amendment
is proposed.

4. Amendment

Add a new subparagraph (v) to paragraph 4 of Part III, Chap-
ter IV [Trusteeship System], Section 2, to be worded as follows:

‘(v) undertake, following the dissolution of the League of
Nations and of the Permanent Mandates Commission, to receive
and examine reports submitted by Mandatory Powers with
respect to such territories under mandates as have not been
placed under the trusteeship system by means of trusteeship
agreements, and until such time as the Trusteeship Council
is established, whereupon the Council will perform a similar
function’.” (Italics added.)

At this stage of the debates in the Preparatory Commission, the
representative of Yugoslavia introduced a substitute proposal for the
appointment of an ad hoc committee of the General Assembly which
would have functions like those which it had been proposed the Tempo-
rary Trusteeship Committee should discharge. The representative of the
United States commented on the Yugoslav proposal in Committee 4

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344 SOUTH WEST AFRICA (DISS. OP. JESSUP)

of the Preparatory Commission on 8 December 1945. The text of this
speech was circulated. (Doc. PC/TC/30.) The speech includes the fol-
lowing statement:

“My Delegation still feels that there is nothing objectionable
whatever in the Report of the Executive Committee proposing
the establishment of a Temporary Trusteeship Committee; it still
seems to us that that is a perfectly constitutional method of procedure
and a perfectly practical method of procedure, and we are willing
to agree to that proposal if we cannot agree on any alternative;
but we are quite willing to explore any other alternative arrange-
ment and are quite willing, as I indicated, to accept the proposals
of the Yugoslav Delegation on the lines which I have indicated.”

However, on 10 December the representative of the Soviet Union
again objected on the same grounds as before, namely that the proposed
ad hoc committee of the General Assembly would be just as unconsti-
tutional and would involve the same delays as would the suggested
Temporary Trusteeship Committee. In view of this situation, the Chinese
representative, Mr. Wellington Koo, proposed that the matter be re-
ferred to a sub-committee. The sub-committee brought in a report
which made no mention of a temporary or ad hoc committee. This report
was adopted by 28 votes to none. (Doc. PC/TC/32; see also Vernon
McKay, “International Trusteeship—Role of United Nations in the
Colonial World”, XXII, Foreign Policy Reports, No. 5, 15 May 1946,
p. 54.)

It thus appears that the reason why the Preparatory Commission did
not recommend—as had its Executive Committee—the establishment of
any temporary body to deal with the mandates prior to the creation of
the United Nations Trusteeship Council, was the impossibility of reaching
an agreement between the point of view staunchly supported by the
United Kingdom and the United States and others on the one hand,
and strongly opposed by the delegation of the Soviet Union and other
delegations on the other hand. It must be borne in mind that this was
the first meeting of a representative United Nations body after the
Charter entered into force and there was evident reluctance to force an
issue over important opposition.

However, the ensuing debates in the Fourth Committee of the General
Assembly at the First Part of its First Session in London, revealed that
there was wide agreement on two points: first, that the dissolution of
the League of Nations would not terminate the mandates; and second,
that the United Nations had responsibilities in connection with the
mandates. Some of the delegates were convinced that mandated territories
were included within the scope of Chapter XI-of the Charter and therefore
favoured setting up machinery to carry out the obligations of the United
Nations under this Chapter. However, at this stage, and later, the
prevailing opinion concentrated on urging the desirability of placing
all mandated territories under the trusteeship system as soon as possible.

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Various points of view expressed in the debates in the Fourth Committee
of the General Assembly at this First Session are revealed by the following
extracts !:

[van Asbeck, Netherlands, p. 12]

“The attention of the Committee was then called to the gap
in the administration of the territories under mandate between the
winding up of the League of Nations and their coming under the
trusteeship system. It should be made clear that the Trusteeship
Council should have the power to deal with such territories in
the interim period.”

[Mr. Makin, Australia, p. 13]

“,.. that the work of the Committee fell into two distinct parts,
the consideration of items pertaining to trusteeship arrangements,
and of matters arising under Chapter XI of the Charter. Australia
believed that these two functions should be taken up separately ...

It should consider also the functions of the United Nations
under Chapter XI of the Charter...

The importance of Chapter XI was that ii was already in effect,
and did not depend upon the establishment of the trusteeship system.
It applied to all territories which were not fully self-governing,
and required no negotiations or decisions.

Mr. Makin then drew the attention of the Committee to the
specific undertaking in paragraph e of Article 73. He urged that
the Committee should advise the General Assembly as to what
arrangements were appropriate for discharging its functions under
Chapter XI of the Charter.

(He said they would introduce a resolution recognizing the
sacred trust.] The machinery should be devised for carrying out
the functions of the United Nations which pertained to the ful-
filment of this obligation.”

On 6 February, Dr. Ivan Kerno, as Rapporteur, made the following
explanation about the report which he had submitted:

“The suggestion that the Committee should consider the pro-
cedures for approving trusteeship agreements, including the possi-
bility of providing some interim machinery for this purpose, had
not been referred to in the report, because it had not been submitted
in written form. The sub-committee which had fully discussed the
matter, had agreed that it should be left completely open for the
General Assembly to decide later.” (P. 37.)

The representative of the United Kingdom objected to the omission—

1 Counsel for Applicants attached undue weight (19 March 1965, C.R. 65/3,
p. 30 and subsequently) to the statement by Mr. Nicholls of South Africa. I do not
reproduce this or certain other statements already spread on the record of the case.

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346 SOUTH WEST AFRICA (DISS. OP. JESSUP)

“,.. of any reference to the question of the procedure for dealing
with trusteeship matters in the period between this session and the
establishment of the Trusteeship Council ...

[He read a statement]: ‘The United Kingdom delegation has,
throughout the Executive Committee, the Preparatory Commission
and this Committee, emphasized the need for such arrangements
if delay in bringing the trusteeship system into operation is to be
avoided ... the United Kingdom delegation would like to remind
the Committee that when we withdrew our pressure for the inclusion
of something on this point in the draft resolution we did so... on
the clear understanding that the Committee had reached this
decision with its eyes open as to the implications ...

There is, unfortunately, some evidence that our efforts to prevent
unavoidable delay, by the creation of machinery for bridging the
gap between sessions, are even now not fully appreciated in all
quarters.’ ” (P. 37.)

The Soviet representative stated that his delegation “still maintained
the view that the establishment of temporary trusteeship machinery
would hamper rather than facilitate the coming into operation of the
permanent system” (p. 39).

The representative of the United States suggested an amendment
to a proposal advanced by the British delegation as follows:

“The Committee also considered whether it would be desirable
to follow up the draft resolution prepared by the Preparatory
Commission, by making recommendations to the General Assembly
for an interim body to deal with trusteeship matters between the
first and second parts of the first session of the General Assembly.
The Committee decided to make no recommendation on this
subject.” (P. 40.)

This proposal was opposed by the Soviet representative because
“there was no mention of any interim trusteeship body in the Preparatory
Commission’s Report”, and because the proposal had not been submitted
in written form (p. 40).

The representative of Byelo-Russia also objected because the United
States proposal implied “that the Committee was not opposed to the
creation of an interim body, but merely had not made any recommen-
dation on this subject”. The difficulty was overcome by the adoption of
a neutral statement submitted by Mr. Ralph Bunche of the United
States. In a later statement Mr. Bunche, who was then Acting Chief of
the Division of Dependent Area Affairs of the United States Department
of State, said that this difficulty (which has just been described) “was
one of procedure rather than substance”. (XIII Dept. of State Bulletin,
1945, pp. 1037, 1043.) If the issue had really been, as contended by
the Respondent in this case, whether the mandates would survive the
dissolution of the League of Nations and whether the United: Nations

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had any responsibilities in regard to mandates, the question certainly
would have been one of substance.

The third “‘new fact” on which Respondent relied, is another matter
which was developed in the joint dissenting opinion of 1962. The matter
to which the joint dissenting opinion called attention occurred at the
meeting of the Assembly of the League of Nations at Geneva in April
1946, in other words, shortly after the First Part of the First Session of
the General Assembly of the United Nations. The events in question
at the meeting of the League Assembly follow in sequence those which
have just been described. The Chinese representative, Mr. Liang, intro-
duced a resolution which read as follows:

“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 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 con-
stituted.”

This proposal did not gain general support and, precisely as happened
in the Preparatory Commission of the United Nations and in the first
meeting of the General Assembly of the United Nations, a neutral text
was finally adopted. This text was as follows:

“The Assembly:

Recalling that Article 22 of the Covenant applies to certain terri-
tories 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 civilisation:

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 last
session of the Assembly, become independent members of the
world community;

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3. Recognises 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, XTI 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.”

It is not surprising that counsel for Respondent should hit upon the
contrast between these two resolutions to support the argument that the
rejection of the original Chinese resolution proved that the United
Nations did not agree that it had any responsibilities in regard to the
mandatory régime which had functioned under the League of Nations.
However, as anyone familiar with proceedings in the United Nations
would know, it is always dangerous to draw inferences from the fact
that a particular resolution is not adopted or that its sponsor withdraws
it. Many reasons may enter into the unwillingness of delegations to vote
for a particular proposition which may have been introduced as a ballon
d'essai, or for other reasons. In the actual case of the Final Assembly of
the League of Nations, it would not be an unreasonable supposition
that if a resolution had been introduced saying that on the dissolution of
the League all mandates would be terminated, that resolution also would
have failed to secure the necessary support.

It is worth noting that the original Chinese resolution suggested the
necessity of avoiding “‘a period of interregnum in the supervision of the
mandatory régime”. On this point, Professor Bailey of Australia, in his
subsequent statement in the League Assembly on 11 April 1946, called
attention to the immediate applicability of Chapter XI of the United
Nations Charter to mandated territories and said: “There will be no
gap, no interregnum, to be provided for.” (Professor Bailey’s statement is
quoted in the Counter-Memorial, Book II, pp. 48-49.)

Although this incident is of no significant weight to support the
argument for which it was invoked, it is true that the full story of the
two resolutions was not presented to the Court in 1950. One must be
aware, however, that the International Court of Justice does not limit
itself to considering documents actually presented to it by counsel or,
as in the case of the 1950 Advisory Opinion, by representatives of
Governments or of the United Nations. Dr. Kerno did mention the
final resolution of the League Assembly as quoted above, and it would
be surprising if the Court did not examine the entire record of that
Final Session of the League Assembly which was cited. by Dr. Kerno.
(.C.J. Pleadings 1950, p. 164.)

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The fourth “new fact” includes various statements made in debates
on the Palestine question and, according to Respondent’s oral argument,
other statements in debates in the United Nations. The kind of argument
which counsel for South Africa makes in connection with the Palestine
question was not presented to the Court in 1950. However, the relations
between the State of Israel and the Arab States, which were matters of
front-page news in the world press, presented politically highly sensitive
issues. One may note the reticence in the General Assembly resolution
requesting the opinion of the Court in the Jnjuries question, and the
like reticence in the Court’s Opinion on that question in 1949. (CJ.
Reports 1949, p. 174.)

The actualities of the Palestine situation are quite different from what
one would suppose solely on the basis of the statements by counsel for
Respondent. It should be noted, however, that the Egyptian statement of
18 April 1946 at the Seventh Plenary Meeting of the General Assembly
was in the dossier submitted to the Court in 1950 by the Secretary-
General. Moreover, Dr. Kerno discussed the Palestine question (pp.
213-214 of the 1950 Pleadings).

The most important bit of evidence to be derived from the Palestine
case is the fact that, except for the Egyptian position which was based on
familiar grounds, everyone, including the Palestine Commission, operated
on the assumption that the Mandate continued to exist after the disso-
lution of the League in April 1946.

The United Kingdom recognized that the Mandate survived the
dissolution of the League and admitted its accountability to the United
Nations. In a letter of 2 April 1947 to the Secretary-General the United
Kingdom said:

“It will submit to the Assembly an account of its administration
of the League of Nations Mandate and will ask the Assembly to
make recommendations under Article 10 of the Charter concerning
the future government of Palestine.” (This quotation is from the
Security Council Official Records, 271st meeting, 19 March 1948
at p. 165.)

On 7 February 1947, the British delegation to the Anglo-Arab confer-
ence in London submitted a new proposal for a five-year British trustee-
ship over Palestine as a preparation for independence. But due to the
impossibility of reconciling conflicting views, the British Government
relegated the solution to the United Nations. The United Nations Special
Committee on Palestine recommended that “The Mandate for Palestine
shall be terminated at the earliest practicable date”. The General As-
sembly resolution of 29 November 1947 (181 (IT) A) adopting the plan
for partition with economic union, provided that “the Mandate for
Palestine shall terminate as soon as possible but in any case not later
than 1 August 1948”. But on 11 December 1947 Mr. Creech Jones, for
the Government, told the House of Commons that the Mandate would

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be terminated on 15 May 1948. (Hansard, Commons, 11 December 1947,
col. 1218.) Put differently, the Mandate would continue in force for some
two years after the dissolution of the League. The United Nations fully
accepted its responsibility to deal with the problem and even asserted
powers which some thought it did not possess. There was a vigorous
effort to establish a United Nations trusteeship. This effort ended with
the establishment of the State of Israel on 14 May 1948 which, by
Israel’s admission to the United Nations, was sanctioned by the Organ-
ization.

The following notes from the Security Council debates are indicative
of the actual situation (271st meeting of Security Council 19 March 1948
(S.C., O.R., p. 154)). The Council was discussing the report of the
Palestine Commission. Senator Austin (United States) had said that in
the morning four of the Permanent Members of the Security Council
had been consulting and that the United Kingdom had not participated
in the consultations but had furnished information. He continued (at
p. 163):

“In his statement to the Security Council on 24 February 1948
[253rd meeting], the representative of the United Kingdom said:

‘My Government is bringing to an end the discharge of its
responsibilities towards Palestine under the Mandate and is
leaving the future of that country to international authority.’

On 2 March 1948 [260th meeting], the representative of the
United Kingdom referred in his statement to the Security Council
to—

‘... Whatever procedure the United Nations may decide to
adopt with a view to assuming responsibility for the government
of Palestine on May 15th...’.

He concluded with the statement:

‘Finally, I must repeat that the United Kingdom cannot enter
into any new or extended commitment in regard to Palestine.
Our contribution has already been made over the years and the
date of termination of our responsibility is irrevocably fixed.’ ”’

Although Senator Austin did agree that the United Nations was not
taking over the mandates system, he asserted: “On the facts reported
by the permanent Members, Palestine is a land falling under Chapter XI
of the United Nations Charter, a non-self-governing territory”.

If it be thought that in advisory proceedings the Court does not receive
as full a statement or argument as is presented in contentious proceedings,
it may be noted that in 1950 the volume of Pleadings, Oral Arguments
and Documents on the question of the International Status of South

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West Africa, contains 350 pages. In the course of the presentation,
Dr. Steyn, representative of the Union of South Africa, spoke at four
separate sessions of the Court.

In summary, in the Palestine case the British Government recognized
and frequently asserted that the Palestine mandate survived the disso-
lution of the League. It agreed to account to the United Nations for its
administration of the Mandate and, by submitting the future of Palestine
to the General Assembly, recognized the authority of the United Nations
to bring about a change in the status of a mandate.

One may compare the position taken by the British Government
in regard to the Transjordan Mandate. The representative of Great
Britain informed the United Nations General Assembly on 17 January
1946 that it was the intention of his Government “‘to take steps in the
near future for establishing this territory as a sovereign independent
State”. The General Assembly in resolution XI of 9 November 1946
welcomed this declaration, and the Assembly of the League of Nations
in its resolution of 18 April 1946, quoted above, welcomed Transjordan
independence.

However, the Polish representative subsequently denied that the
Mandate had been legally terminated and asserted the “rights and
obligations” of the United Nations. On 29 August 1946, when the
question of the admission of Transjordan as a Member of the United
Nations was being discussed, the British representative in the Security
Council remarked in response:

“You expressed a doubt as to the status of Transjordan, in view
of the fact that it was formerly under mandate. You said that the
United Nations inherited certain rights and responsibilities in the
matter of mandates from the League of Nations. That is quite true.
The League of Nations, recently, on its deathbed, formally declared
Transjordan free from the mandate. Therefore on the question of
whether the legal formalities have been sufficiently complied with,
I fail to see in what way those formalities have not been fulfilled in
the case of Transjordan as much as they have been fulfilled in
regard to two other States which have been accepted without
question as Members of the United Nations.” [ie., Syria and
Lebanon.] (See U.N., S.C., O.R., Ist Year, 2nd Series, report of
56th and 57th Meetings at p. 101. Italics added.)

It is apparent that there is nothing in the argument about any “new
facts” to induce the Court to alter decisions about the International
Status of South West Africa which it had reached after full argument
and full deliberation.

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SECTION IV. THE HISTORICAL BACKGROUND OF THE DRAFTING OF THE
MANDATE

The history of the drafting of the mandate instruments has been
discussed in these cases with particular reference to the important
problem of interpreting Article 7, paragraph 2, of the Mandate for
South West Africa. Although I touched on the principal historical facts
in my separate opinion in 1962, the joint dissenting opinion of 1962,
the arguments of the Parties in the subsequent phase {, and the present
Judgment of the Court, now require a more detailed exposition of
certain aspects of the historical record.

It will be more convenient not to follow a strictly chronological
scheme. I shall deal first with the interpretation of paragraph 2 of
Article 7 of the Mandate because the normal interpretation of its text
has been challenged in such a way as to necessitate a resort to the
travaux préparatoires and subsequent practice, and because the Judgment
of the Court, in my view, rests upon an incomplete, inaccurate analysis
of the data. This erroneous analysis leads the Court to the conclusion
that paragraph 2 of Article 7 of the Mandate did not confer upon
Members of the League a right to rely upon the Court for the general
purpose of ensuring the proper administration of the Mandate in fulfil-
ment of the obligations of the sacred trust. After dealing with the
historical background and other evidence needed for the interpretation
of paragraph 2 of Article 7 of the Mandate, it will be necessary to return
to the historical background in connection with other issues.

Treaty Interpretation

In my opinion it is not necessary—as some utterances of the two
international courts might suggest—to apologize for resorting to travaux
préparatoires as an aid to interpretation. In many instances the historical
record is valuable evidence to be taken into account in interpreting
a treaty. It is tradition, rather than law or logic, which has at times led
to judicial statements that this evidence is used merely to confirm an
interpretation which is supposed to have been already derived from the
bare words of the text or even of the text in its context. The appropriate
position on these “rules” of treaty interpretation is well stated in Italian
Republic v. Federal Republic of Germany, Arbitral Commission on
Property, Rights and Interests in Germany, Second Chamber—Sauser-
Hall, Schwandt, Sperduti—(1959) 29 International Law Reports, 442, at
449 and 459 ff., for original pagination 260 and 268 ff.

The task of interpretation in this case requires the Court to ascertain what

1 The Respondent relied heavily on the joint dissenting opinion of 1962; see
especially Counter-Memorial, Book II, Chapter V. The present Judgment of the
Court does not seem to depart from the arguments of the joint dissent in this
respect.

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meaning must be given to certain important provisions of the Covenant
of the League of Nations, and of the Mandate for South West Africa.
At the outset:

“,.. one must bear in mind that in the interpretation of a great
international constitutional instrument, like the United Nations
Charter, the individualistic concepts which are generally adequate
in the interpretation of ordinary treaties do not suffice ©”. (Separate
opinion of Judge de Visscher, Status of South West Africa, I.C.J.
Reports 1950, p. 189.)

In particular it is true that one cannot understand or analyse the
proceedings of a great international conference like those at Paris or
San Francisco if one regards it as essentially the same as a meeting
between John Doe and Richard Roe for the purpose of signing a contract
for the sale of bricks.

“But lawyers who are trained in the methods of interpretation
applied by an English court should bear in mind that English
draftsmanship tends to be more detailed than continental, and it
receives, and perhaps demands a more literal interpretation. Simi-
larly, diplomatic documents, including treaties, do not as a rule
invite the very strict methods of interpretation that an English court
applies, for example, to an Act of Parliament.” (The Law of Nations
by J. L. Brierly, 6th ed., 1963, by Sir Humphrey Waldock, p. 325.)

It may be agreed that there are dangers in dealing with multipartite
treaties as “international legislation”, but if municipal law precedents
are invoked in the interpretative process, those precedents dealing with
constitutional or statutory construction are more likely to be in point
than ones dealing with the interpretation of contracts 7.

In interpreting a bilateral treaty, the Court may, but need not, content
itself with examining the views of the two parties. In the case of a
multipartite treaty, the situation is different. Thus in the Rights of
Nationals of the United States of America in Morocco case between
France and the United States, in considering the Act of Algeciras, the
Court concluded that the article in question “requires an interpretation
which is more flexible than either of those which are respectively con-
tended for by the Parties in this case”. (1.C.J. Reports 1952, p. 211.)
So in the Application of the Convention of 1902 Governing the Guardianship
of Infants case, Judge Cérdova said:

“If the 1902 Convention had been a bilateral treaty, their [the
Parties’] common interpretation with regard to one of its Articles...

1 One recalls the famous apothegm of Chief Justice Marshall in McCulloch v.
Maryland (4 Wheat. 407): ““We must never forget that it is a constitution we are
expounding.”

2 The Supreme Court of the United States resorts to the historical background
for aid in interpreting the Constitution of the United States (e.g., in Wesberry v.
Sanders, 84 §. Ct. 526 (1964)) and in construing acts of Congress (e.g., in Brother-
hood of Locomotive Engineers v. Chicago RI. & P.R. Co., 86 S. Ct. 594 (1966)).

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would have been enough for me to consider such a construction
as final; but the 1902 Convention being a multilateral treaty, it is
possible, I believe, to hold a different opinion from that of the two
Parties before the Court with reference to the applicability of its
Articles.” (.C.J. Reports 1958, p. 143.)

In the Territorial Jurisdiction of the International Commission of the
River Oder case, the Permanent Court was not satisfied with the various
technical arguments advanced by the parties for the interpretation of
the Treaty of Versailles and accordingly fell back on principles governing
international fluvial law in general (P.CIJ., Series A, No. 23, 1929,
p. 26).

Even when dealing with a bilateral treaty, the Permanent Court
asserted its judicial freedom in saying in the Free Zones of Upper Savoy
and the District of Gex case:

“From a general point of view, it cannot lightly be admitted
that the Court, whose function it is to declare the law, can be
called upon to choose between two or more constructions determined
beforehand by the Parties none of which may correspond to the
opinion at which it may arrive. Unless otherwise expressly provided,
it must be presumed that the Court enjoys the freedom which
normally appertains to it, and that it is able, if such is its opinion,
not only to accept one or other of the two propositions, but also
to reject them both.” (P.C.LJ., Series A/B, No. 46, p. 138.)

More especially, when the judicial task has been that of interpreting
Mandates, national courts have declared:

“In any analysis of the legal and constitutional basis of the
government of the Mandated Territory the primary duty of English
courts is to attend to the objects and purposes of the mandates
system, to avoid ‘a quibbling interpretation’ and ‘a merely pedantic
adherence to particular words’, ‘to discover and to give effect to

. all the beneficent intentions’ embodied in the instrument . . .”” (Evatt,
J., High Court of Australia, in Ffrost v. Stevenson, 1937, Vol. 58,
Commonwealth Law Reports, p. 528 at 579.)

And to the same effect:

“T am of opinion that in seeking the meaning of expressions used
in the Covenant of the League and in the Mandate one should not
overlook the nature of those documents or be led astray by the
terms of art used therein.” (van den Heever, J., in Rex v. Offen,
1934, South African Law Reports, South West Africa, p. 73 at 84.)

I repeat also an extract from the opinion of de Villiers, J.A., in
Rex v. Christian (1923), The South African Law Reports {1924] Appeilate
Division, 101 at 121, which Judge Sir Arnold McNair quoted in his
separate opinion on the Status of South West Africa in 1950:

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SOUTH WEST AFRICA (DISS. OP. JESSUP)

“The legal terms employed in Article 22— trust, tutelage, mandate,
cannot be taken literally as expressing the definite conceptions for
which they stand in law. They are to be understood as indicating
rather the spirit in which the advanced nation who is honoured
with a mandate should administer the territory entrusted to its care
and discharge its duties to the inhabitants of the territory, more
especially towards the indigenous populations. In how far the legal
principles of these analogous municipal institutions should be
applied in these international relations I shall not take upon myself
to pronounce. But J may be permitted to say that in my opinion
the use of the term shows that in so far as those legal principles are
reasonably applicable to these novel institutions, they should
loyally be applied. No doubt most difficult questions will arise.”
(LC.J. Reports 1950, p. 151.)

A much earlier admonition taught that “the letter killeth but the
spirit giveth life”.

I adopt with emphatic approval what Judge Lauterpacht said in his
separate opinion in 1955 on South West Africa about the so-called
“clear meaning” rule which to my mind is often a cloak for a conclusion
reached in other ways and not a guide to a correct conclusion. Judge
Lauterpacht said:

“This diversity of construction provides some illustration of the
unreliability of reliance on the supposed ordinary and natural
meaning of words.

Neither having regard to the integrity of the function of inter-
pretation, is it desirable that countenance be given to a method
which by way of construction may result in a summary treatment or
disregard. of the principal issue before the Court.” (Z.C.J. Reports
1955, p. 93.) (Italics added.)

I also agree with Judge Sir Percy Spender’s discussion of the rule
about “ordinary and natural sense” in his separate opinion in the
question of Certain Expenses of the United Nations (Article 17, para-
graph 2, of the Charter) (I.C.J. Reports 1962, p. 184):

353

“This injuction is sometimes a counsel of perfection. The ordinary
and natural sense of words may at times be a matter of considerable
difficulty to determine. What is their ordinary and natural sense
to one may not be so to another. The interpreter not uncommonly
has, what has been described as, a personal feeling towards certain
words and phrases. What makes sense to one may not make sense
to another. Ambiguity may lie hidden in the plainest and most
simple of words even in their natural and ordinary meaning. Nor
is it always evident by what legal yardstick words read in their
natural and ordinary sense may be judged to produce an unreason-
able result.”
356 SOUTH WEST AFRICA (DISS. OP. JESSUP)

With these observations in mind, I re-emphasize the view expressed
above about the value of travaux préparatoires.

The Milner Commission

The Milner Commission, established by the Council of Four of the
Peace Conference on 27 June 1919 to deal with the Mandates, held its
first meeting on the following day, 28 June. The Commission had
before it a draft for ‘C’ mandates, prepared by Lord Milner. The Japanese
representative noted the absence of what is now referred to as an ‘‘open-
door” clause for equal commercial opportunities for all Members
of the League; this was to remain a Japanese objection over a long
period of time. Although the record ! makes no reference to the distri-
bution of a draft for a ‘B’ mandate at this time, Viscount Chinda referred
to the text of such a ‘B’ draft, and the American ‘B’ draft of 8 July
has a headnote saying that the modifications in Lord Milner’s draft are
printed in italics, so it is evident that a Milner ‘B’ draft had already been
circulated.

The original Milner draft for ‘C’ mandates contained provisions
about slavery, forced labour, control of arms traffic, alcoholic beverages,
military service and fortifications, but nothing on the requisite consent
of the Council of the League for modification of the terms of the mandate
and no adjudication clause as in the eventual Article 7.

The second meeting of the Commission was on 8 July. It then had before
it a French draft of a ‘B’ mandate, and an American draft of a ‘B’
mandate. The French draft had been sent to Lord Milner on 45 July.
The later appearance of the American draft may have been due to the fact
that only Mr. Beer represented the United States at the first meeting on
28 June whereas Colonel House was also present on 8 July and subse-
quently. [find no justification for the position taken in the Court’s Judgment
that this American draft was not one of the “original” drafts. The Com-
mission continued its discussion of the draft of the ‘C’ mandate but
members made cross-references to the new ‘B’ drafts. Thus Colonel
House suggested inserting in the ‘C’ draft, Article 14 of his ‘B’ draft
which, in expanded form, deals with the necessity for the consent of the
Council to any changes, as is now recorded in paragraph 1 of Article 7 of

1 The only detailed available record is an official French document printed as a
confidential paper in 1934 but not released until much later: Conférence de la Paix
1919-1920, Recueil des Acts de le Conférence, Partie VI A, Paris, 1934, Confidentiel.
This is the source referred to in the following pages unless otherwise noted.

2 Erroneously identified in my separate opinion in 1962 as a “British-French
draft”.

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the South West Africa ‘C’ mandate}. The decision on Colonel House’s
suggestion was deferred. Colonel House suggested additions to what has
come to be called the “missionary clause” which in some form was in all
three original drafts of the ‘B’ mandate and which now figures in Article 5
of the ‘C’ mandates. Colonel House telegraphed President Wilson from
London on 9 July that in discussing the ‘C’ mandates “T offered a clause
for the protection of missionaries which was agreed to in substance and
the form will be drafted tomorrow” ?.

Colonel House did not at this point suggest the inclusion in the ‘C’
mandate of the adjudication clause which figured in Article 15 of the
American ‘B’ draft since the Commission at this point passed to a
consideration of the draft of ‘B’ mandates. For this purpose, they took
the French draft as a basis for discussion. A clause in the preamble of the
American text was discussed. As was to be true during many subsequent
discussions, the meeting ended on disagreement over the French view
about the recruitment of Native troops.

On 9 July, the third session of the Commission opened with a further
discussion of the French text of a ‘B’ mandate and the problem of re-
cruitment. However, from point to point, the United States represen-
tatives asked for the inclusion of provisions from the American draft,
which was much more detailed in specifications of commercial and other
economic rights, although most of these were covered in general terms in
the French draft. The French representative, M. Simon, questioned
whether the detailed specifications were necessary. It was at this point,
and before any reference by Colonel House to the adjudication clause in the
American draft, that Lord Robert Cecil made the statement which is
quoted out of context in the 1962 joint dissenting opinion at page 556
(and I adopt their translation):

“Lord Robert Cecil (British Empire) thought that that question
was linked with the right of recourse to the International Court.
If the right of recourse were to be granted, it would be preferable
merely to lay down the principle of equality and leave it to the
Court to apply the principle to particular cases. He thought however
it would be desirable to replace the words ‘commercial equality’

1 The text as printed in Annex I on page 339 is as follows: [Translation] “Art. 14.
The consent of the League of Nations is required for any modification of the terms
of this mandate and the Council shall at any time recommend their reconsideration
if, in its opinion, these provisions are no longer appropriate in the existing circum-
stances.”

2 See Miller, Diary, Vol. XX, p. 348 and Foreign Relations of the United States,
Paris Peace Conference, 1919, Vol. XI, p. 647.

Representations on behalf of missionary interests had been made to the American
delegation to the Peace Conference as early as April 1919; see Miller, Diary, Vol. I,
p. 218, and Vol. VH, p. 398.

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(‘égalité commerciale’ )—-which appeared in the French draft—by
the words ‘commercial and industrial equality’. If on the other hand,
no right of recourse to the Court was to be given, it would be
necessary to elaborate stipulations in detail.”

As the joint dissent correctly states: “The morning session concluded
with this observation.” It was not discussed.

It was not unnatural for Lord Robert Cecil to refer to the International
Court since at the Peace Conference he had been the champion of the
Court and it was largely his insistence that finally led to the inclusion in
the Covenant of Article 14 which placed upon the Council the duty of
providing for such a Court. (See Temperley, A History of the Peace
Conference of Paris, Vol. VE, 1924, p. 486; Hudson, Permanent Court of
International Justice, 1920-1942, 1943, p. 95.) On the other hand, M.
Simon, who was the French representative on the Milner Commission,
had opposed at Paris the whole idea of international supervision of the
former enemy territories which eventually were placed under mandates;
he advocated “annexations pure and simple”. (See Lloyd George,
Memoirs of the Peace Conference, 1939, Vol. I, p. 350.) The observation
of Lord Robert Cecil just quoted above had no relevance to the intention
of the United States representatives in proposing an adjudication clause
which—as will be shown—distinguished between judicial recourse to
safeguard special individual economic rights, and recourse to the Court to
protect the general rights of member States in the proper carrying out of
the mandate. There is nothing in the record to support the conclusion in
the joint dissenting opinion (at p. 556) that the debate at this meeting—
when the adjudication clause was not yet being advocated by its American
proponents—shows that the “‘sole context in which it [the adjudication
clause] was considered” “was the protection of the commercial and other
rights of the States Members of the League, and those of their nationals,
as intended to be conferred on them by the mandate instruments”.

At the fourth session, later on 9 July, it is correct that Colonel House
suggested that they consider Article 15 of the American draft—the
adjudication clause. The ensuing debate was on the procedural ques-
tion whether suits in the International Court could be initiated by
individual citizens—as suggested in the second paragraph of the American
text—-or whether it should, in accordance with traditional diplomatic
practice in claims cases, be left to the State to espouse the claims of its
citizens and act as plaintiff on their behalf.

The text of the two paragraphs of the American adjudication clause
was as follows / translation]:

“Article 15

If a dispute should arise between the Members of the League of
Nations relating to the interpretation or the application of the present

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Convention and if this dispute cannot be settled by negotiation, it
will be referred to the Permanent Court of International Justice which
is to be established by the League of Nations.

The subjects or citizens of States Members of the League of
Nations may likewise bring claims concerning infractions of the
rights conferred on them by Articles 5, 6, 7, 7a and 7b of this Man-
date before the said Court for decision. The judgment rendered by
this Court will be without appeal in both the preceding cases and will
have the same effect as an arbitral decision rendered according to
Article 13 of the Covenant.”

M. Simon had no objection to the principle of a resort to an inter-
national court but he thought that if individuals could utilize that
procedure any administration would become impossible. Lord Milner
also thought that this individual right of appeal to the Court would make
any administration difficult. He added: “The question of the performance
or of the non-performance of the terms of the Mandate, was a very serious
one and should only be put forward under the responsibility of a Govern-
ment, otherwise difficulties would arise which might entail the liquidation
of the League of Nations.” /Translation.] This important statement is
not mentioned in the joint dissent of 1962.

Clearly ‘“‘the performance or non-performance of the Mandate” is an
expression which includes all the provisions for the welfare of the native
peoples and not merely commercial rights of citizens of members of the
League. It was scarcely the latter type of claims which might involve
“the liquidation of the League of Nations”. It was after having thus
emphasized that governments themselves must take the responsibility for
bringing to the Court complaints about the “non-performance”’ of the
mandate, that Lord Milner went on to say (as indicated in the joint
dissent) that there would certainly be some advantage in transferring
from the political plane to the legal plane the settlement of questions
such as those concerning property rights (droit de propriété), but he
asked that the government which would decide whether the claim should
be brought before the Court should take the responsibility for that
decision. It should be noted that this last statement by Lord Milner was
preceded by a comment by Lord Robert Cecil to the effect that the
Foreign Office had often been embarrassed by the question of claims of
citizens and it would be helpful if these questions no longer remained in
the diplomatic sphere.

Now the discussion of the commercial or economic rights of nationals
of other members of the League up to this point had not used the term
“droit de propriété” but in this session of 9 July, there had been a long and
detailed discussion of provisions of the Milner, French and American
drafts which dealt with transfers of title to property rights (propriété
foncière) of native peoples. Mr. Beer (United States) urged the addition
of a provision from the American draft which would state that no such

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transfer of property would be valid without the authorization of public
authorities designated for that purpose. Lord Milner thought that this
stipulation should be limited to transfers of land from a native to a
non-native. He thought the American proposal might lead to useless
interventions. But Lord Robert Cecil supported the American point of
view noting that he had heard of many abuses in practice in the purchase
of native lands. After a long discussion they agreed on a text dealing with
propriété fonciére indigéne and bien foncier indigéne. This was distinctly a
provision for the protection of the natives, not of the economic rights of
nationals of other members of the League. The most natural interpreta-
tion of Lord Milner’s remark is that it referred to questions concerning
native real property rights—a matter which he thought might well be
transferred to the legal plane, that is to say, be capable of submission to
the Permanent Court.

Lord Robert Cecil then proposed his substitute for the second para-
graph of the American draft adjudication clause:

“The Members of the League of Nations will likewise /égale-
ment] be entitled on behalf of their subjects or citizens to refer
claims for breaches of their rights, etc.” /Translation.]

The word “likewise” shows that they had in mind two different types of
actions in the Court. Mr. Beer for the United States accepted this text and
it was adopted.

The joint dissent (at p. 557) then correctly states that it was agreed to
omit the last sentence of the second paragraph of the American draft.
adjudication clause which read as follows:

“The judgment given by the Court will be without appeal in the
two above mentioned cases and will have the same effect as an arbi-
tral award rendered pursuant to Article 13 of the Covenant 1.”
(Italics added.)

But the joint dissent draws the wrong conclusion when it says “this
sentence became superfluous if all claims had to be referred to the Court

1 The text of Article 13 of the Covenant is in part as follows:

“Art. 13.1. The Members of the League agree that whenever any dispute
shall arise between them which they recognise to be suitable for submission
to arbitration or judicial settlement, and which cannot be satisfactorily settled
by diplomacy, they will submit the whole subject-matter to arbitration or
judicial settlement. .

4. The Members of the League agree that they will carry out in full good
faith any award or decision that may be rendered, and that they will not resort
to war against a Member of the League which complies therewith. In the event
of any failure to carry out such an award or decision, the Council shall propose
what steps should be taken to give effect thereto.”

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by Governments, whether in respect. of their own rights under the Man-
dates, or of those of their nationals’.

If this sentence was superfluous in regard to governmental claims, why
did it expressly provide, in the original text, that it applied to the “two”
situations, that is to governmental claims in paragraph one, and indivi-
dual claims under paragraph two? The summary record (and it must al-
ways be remembered that this is not a verbatim record) does not state
any reason offered for the deletion 4.

The joint dissent also asserts (p. 555):

“Briefly, the position appears to have been that no one thought
of having a provision for compulsory adjudication until the United
States made detailed proposals for commercial and other State
rights for Members of the League and their nationals ...”

The fact is, as pointed out above, that the American draft was introduced
at the second session of the Commission on 8 July, at the same time that
the French draft was proposed. The American draft included a number of
new points not appearing in the earlier British drafts of ‘C’ and ‘B’
mandates, namely:

(i) detailed specifications of the contents of the annual report;

(ii) the detailed specification of commercial and economic rights;
(iii) the clause concerning Council consent to changes in the mandate;

and

(iv) the adjudication clause.

The adjudication clause was no more limited to the economic and
commercial and similar clauses of the mandates than was the clause
concerning the necessity for Council consent to changes in the mandates.
Both were applicable to all provisions of the mandates and both were
introduced at a very early stage in the Commission’s work.

On 10 July, at the fifth session of the Commission, there was a discus-
sion of Article 11 of the French draft which required a report by the
mandatory to the Council. The American draft had again included
numerous details concerning the contents of the report. After Lord
Milner suggested the mandatory would supply the information it thought
appropriate and that the Council could then ask for more details if it
wished them, it was agreed to substitute the expression which is now
found in Article 6 of the South West Africa Mandate, namely “‘an annual
report to the satisfaction of the Council”. This did not and does not mean

1 It may be noted that in Article 17 of the Memel Convention of 1924, which is
quoted later in this opinion, a paragraph in the adjudication clause which deals
solely with disputes which might arise between Lithuania and any one of the Prin-
cipal Allied Powers Members of the Council, after providing for recourse to the
Permanent Court adds the sentence: “There shall be no appeal from the Permanent
Court’s decision, which shall have the force and value of a decision rendered in
virtue of Article 13 of the Covenant.”

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that the Council must be satisfied with the actual measures taken to
carry out the obligations of the mandatory; it means satisfied with the
amount of information supplied. The whole subsequent practice of the
Permanent Mandates Commission and of the Council of the League
confirms this interpretation.

It was at this fifth session that the amended texts of Articles 14 and 15
of the American draft were adopted.

At the same session they took up an amended draft of the ‘C’ mandate
which reflected the preceding discussions. It included Colonel House’s
missionary clause, and the American proposals requiring Council
consent to changes and providing for appeals to the International Court.
BUT, the ‘C’ mandate did not provide for the various economic and
commercial rights specified in the ‘B’ mandate AND it did not include the
second paragraph of the adjudication clause permitting a government
“likewise” to refer to the Court claims on behalf of its subjects or
citizens. If Article 5, which contains the “missionary clause” was, for
example, considered to involve the kind of rights of individuals which
were specified in the economic and commercial sections of the ‘B’ man-
date, presumably the second paragraph of the adjudication clause
would have been included because it was continued in the subsequent
drafts of the ‘B’ mandates. Actually the “missionary clause” as it origi-
nally appeared in all three “B’ drafts contained no reference to the natio-
nality of the missionaries—no mention in this connection of the members
of the League. Colonel House on 8 July suggested inserting in the ‘C’
draft the same rights which were provided in the ‘B’ drafts for mis-
sionaries. This was agreed. In the revised ‘C’ draft of 10 July, the reference
to members of the League, as a limiting description of missionaries sud-
denly appears, but it was not put in the ‘B’ drafts by the Milner Com-
mission. It is thus clear that the missionary clause was considered one
for the benefit of the Natives—not for the benefit of League members 1.
It goes with freedom of conscience and religion. This is clear also from
Articles 8-10 of the ‘A’ Mandate for Syria and the Lebanon. It seems
clear that the adjudication clause was intended to cover, in the words of
Lord Milner, any objection raised by a member of the League against the
Mandatory’s “execution or non-execution of the Mandate”. That is why
the adjudication clause refers to “any dispute” concerning interpretation
or application of the mandate—an expression made more emphatic
later in the final text by saying “any dispute whatever’. It is to be noted
that while paragraph two, dealing with individual claims, refers to
breaches of their rights (infractions aux droits) there is no equivalent
mention of “rights” in the first paragraph.

1 But members of the League could also invoke it in the interest of their nationals
as I showed in my separate opinion in 1962, pp. 410 ff.

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Also at the fifth session they continued the discussion of the ‘B’ draft
and in adopting the adjudication clause, kept in the two paragraphs as
revised. At the sixth session on the evening of 10 July, the full texts of
‘B’ and ‘C’ were again reviewed and adopted.

On 15 July, Lord Milner sent the texts of the ‘B’ and °C’ drafts to the
Secretary-General of the Peace Conference. To show the drafting
differences, it is advisable to reproduce the texts of the “C’ and ‘B’
jurisdictional clauses as thus despatched:

Article VI of the ‘C’ draft reads:

[Translation] “In the event of a dispute between the Members of the
League of Nations, relating to the interpretation or the application
of these provisions, and if this dispute should not be capable of being
settled by negotiations, it shall be submitted to the Permanent Court
of International Justice to be established by the League of Nations.”

Article XII of the ‘B’ draft reads as follows:

[Translation] “1. If a dispute should arise between the Members
of the League of Nations, with regard to the interpretation or the
application of this Mandate, which cannot be settled by negotia-
tions, it shall be submitted to the Permanent Court of International
Justice, which is to be established by the League of Nations.

2. The States Members of the League of Nations may likewise
bring claims on behalf of their subjects or citizens before the said
Court for decision in respect of infractions of the rights conferred
on them by this Mandate.”

At the ninth session of the Commission on 5 August, there was sub-
mitted an American draft for ‘A’ mandates which contained the follow-
ing Article XVIII:

[Translation] “Should any dispute arise between the States
Members of the League of Nations concerning the interpretation
or the application of this Mandate, which cannot be settled by
direct negotiations, the matter shall be referred to the Permanent
Court of International Justice, which is to be established by the
League of Nations.

The States Members of the League of Nations may bring the
claims of their nationals before the Permanent Court of Inter-
national Justice for infractions of their rights 1.”

In a telegram from Colonel House to the President and Secretary of
State on 9 August 1919 there is what he describes as the text of the form
of mandate ‘A’ which he had introduced. In this text the adjudica-

1 According to Hunter Miller’s Diary (Vol. XX, p. 383) this text was drafted
by Beer and agreed to generally by Lord Robert Cecil.

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tion clause is in Article XV—not Article XVIII—and reads as follows:

“Article Fifteen, paragraph one. If any dispute whatever should
arise between states, members of the League of Nations, relating to
the interpretation of (sic) the application of this mandate which
cannot be settled by negotiation this dispute shall be admitted to the
Permanent Court of International Justice to be established by the
League of Nations.

Two. States, members of the League of Nations, may likewise
bring any claims on behalf of their subjects or citizens for infractions
of their rights under this mandate before this said court for deci-
sion !.”

At this time, there were available the two precedents, the adjudication
clause in two paragraphs in the two ‘B’ mandates, and the adjudication
clause in one paragraph in the ‘C’ mandate. In drafting the ‘A’ mandate
the American draftsmen could have chosen either one of these formule.
They chose to take the formula containing the two paragraphs since the
other articles of the draft included detailed specification of economic,
commercial, archaeological and other rights. But Lord Milner informed
the Secretary-General of the Peace Conference by a letter of 14 August
that since the French representative was opposed to dealing with ‘A’ man-
dates at that time, the American draft was withdrawn.

The French document cited above contains a note to the effect that the
texts of the ‘B’ and ‘C’ mandates had been referred to the drafting
committee of the Peace Conference which had not discussed the merits
but had put them in the form of treaties. The texts of the ‘B’ Mandates to
Great Britain and to Belgium for East Africa are then printed; the text of
Article 15—the adjudication provision in two paragraphs—is identical
in the two Mandates. The text of the ‘C’ Mandates for South West
Africa, for Nauru, for Samoa, for possessions south of the Equator
except Samoa and Nauru, and for islands north of the Equator, are
printed and the adjudication clause is the same in each one although in
some mandates it is No. 8 and in others No. 9. These texts are the same
as those given in English in the Peace Conference volumes of Foreign
Relations of the United States. From Volume 9, Appendices B, C and D,
pages 649 ff., the following appears:

Article 15 of the ‘B’ Mandate to Great Britain for East Africa:

“15. If any dispute whatever should arise between the members
of the League of Nations relating to the interpretation or application
of this mandate, which cannot be settled by negotiations, this
dispute shall be submitted to the Permanent Court of International
Justice to be established by the League of Nations.

States, members of the League of Nations, may likewise bring
any claims on behalf of their subjects or citizens for infractions

1 Miller, Diary, Vol. XX, pp. 383, 388.
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of their rights under this mandate before the said Court for de-

cision.”
In Appendix C the formal introductory paragraphs of the Belgian ‘B’
Mandate for East Africa are printed and it is then stated that the ensuing
articles are the same as in the British Mandate, mutatis mutandis.

In Appendix D, Article 8 of the ‘C’ Mandate for South West Africa
is as follows:
“Article 8

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

The text for the ‘C’ Mandate for Nauru is identical but in the Mandate
for Samoa the word “those’—signalled in the text just quoted—is
corrected to “these”. It is noted that for the other ‘C’ mandates for the
islands the text is the same; the actual texts are not duplicated !.

It may be noted also that in the same documents, the French text
of Article 14 of the two East African ‘B’ Mandates corresponds to the
English text but that in the South West Africa ‘C’ Mandate, the first
sentence has a slight variation: “Toute modification aux termes de ce
Mandat devra être approuvée au préable par le Conseil de la Société
des Nations”. In the English versions, this sentence has been made
identical with the text used in the East Africa ‘B’ Mandates. In the
French text finally adopted, it is this French version which is maintained
in ‘C’ mandates, while the English text as in the first paragraph of Article
7 of the South West Africa Mandate, follows the English text given in
the Foreign Relations volume.

The So-Called “Tanganyika Clause”

It is impossible to accept the explanation in the Judgment of the Court
of the existence of the so-called “Tanganyika clause”, which is the second
paragraph of the adjudication clause as introduced by the United States
on 9 July and subsequently adopted in amended form. This is the clause
which relates to the rights of individuals.

The joint dissent of 1962 concluded that in the Tanganyika Mandate
“there was simply a failure to drop the second part as being superfluous”
(p. 560, and see the footnote on that page). President Winiarski, in his
dissenting opinion in 1962 states that: “No one has been able to explain

1 In the French documents, the text of the Mandate for South West Africa
refers to the “Ligue (sic) des Nations”; this error is corrected to “Société des
Nations” in the ensuing texts of the other ‘C’ mandates.

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how this paragraph ... got into the Mandate for Tanganyika and that
Mandate alone ...” (p. 454). The present account sheds some light
on the problem.

As has been shown, it seems to have been the original intent that this
second paragraph would cover claims arising out of economic and
commercial rights which normally would be claims on behalf of citizens
who asserted a denial of some right covered by the terms of the mandate.
This was later illustrated in the Mavrommatis cases arising under the
Palestine Mandate. On the other hand, the first paragraph of the adjudi-
cation clause provided for Court review at the request of any member
of the League of any question whatever concerning the interpretation or
application of the mandate—a much broader provision. It has been
pointed out that since the general “‘open-door”’ clauses were not included
in the ‘C’ mandates, the second paragraph of the adjudication clause,
covering individual rights, was similarly not included in the ‘C’ mandates.
The inclusion in the ‘C’ mandates of the “missionary” clause is a re-
flection of a general interest in the welfare of the indigenous peoples.
As stated in Article 5 of the South West Africa Mandate, it imposes
on the Mandatory a general duty in regard to freedom of conscience
and the “free exercise of all forms of worship”. It provides further for
the entry and activity of “ail missionaries, nationals of any State Member
of the League of Nations”.

Now when the drafts were sent by Lord Milner to Paris, the only ‘B’
mandates about which agreement had been reached were the East
African Mandates for Great Britain and Belgium. In both of these
Mandates, the second paragraph of the adjudication clause was included.
It was similarly included when those two drafts had been dealt with by
the drafting committee of the Peace Conference; these are the texts
quoted above from the Foreign Relations of the United States. In the
subsequent processes of redrafting, the second paragraph was left out of
the Belgian Mandate for East Africa. Viscount Ishii, as Rapporteur for
the Council of the League, said in his report of February 1921 (Annex
374 b of League of Nations, Official Journal of August 1922, p. 849)
that the British Mandate for East Africa reproduced most faithfully the
type of the drafts for ‘B’ mandates drawn up by the Milner Commission.
Yet in the texts presented to and approved by the Council at that time,
the second paragraph of the adjudication clause is not contained in the
Belgian Mandate for East Africa.

In his comments on the Belgian Mandate for East Africa, Viscount
Ishii referred to a letter of transmittal from M. Hymans, the Belgian
representative, in which it was explained that the Belgian draft had been
based on the wording used in the French and British drafts for Togo and
the Cameroons, in order to give “the Belgian mandate a little more
elasticity as regards the administration of the territory ...” (loc. cit.,
p. 860). Now those two French and British drafts were not prepared in
the Milner Commission but were drafted subsequently after the French
and British Governments had agreed on the division of the territories

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and had decided to place them under mandates. These mandates had
not been allocated with the others on 7 May 1919. The Togo and Came-
roon Mandates all had just the one paragraph in the adjudication clause,
and revised Belgian Mandate for East Africa followed suit. Viscount
Ishii had taken note of the fact that the Togoland and Cameroons
drafts had an adjudication clause which was “identical with the first
paragraph of Article 13 of the British Mandate for East Africa” (ibid.,
p. 857). But he made no comment on the omission of the second para-
graph and in dealing with the same clause in the draft Belgian Mandate
he merely referred back to his observations on the drafts for Togoland
and Cameroons (ibid., p. 861) 1.

It may well have been thought that a mandatory Power was more likely
to be brought to Court on the usual type of diplomatic claims advanced
by a government on behalf of its nationals than on governmental com-
plaints about the treatment of the Native inhabitants. The elimination
of the second paragraph covering the usual type of diplomatic claims,
it may have been thought (as some dissenting judges later thought in
the Mavrommatis cases) would therefore leave to the Mandatory a
freer hand. Since the Judgment of the Court in the attempted analysis
of motives of those responsible for the drafting of the Covenant and the
mandates in 1919-1920, in several places rests on what the Court thinks
might have been likely or probable or plausible, I feel free to offer what
seems a reasonable speculation about the reasons why the drafters of
the Togo, Cameroons and Belgian East African Mandates left out a
provision agreed upon in the Milner Commission and from which it was
less easy for the British Government to withdraw.

The Permanent Court of International Justice was called upon to
deal with a case arising under the Palestine Mandate in the Mavrommatis
cases; the first judgment in these cases was handed down on 30 August
1924. The Palestine Mandate contained an adjudication clause in one
paragraph corresponding to the clause in the ‘C’ mandates. The Court
upheld and applied the usual rule of diplomatic protection and allowed
the Greek Government to maintain this claim on behalf of its national.
Three of the dissenting judges called attention to the fact that in the British
Mandate for East Africa the adjudication clause contained the second
paragraph—the ‘“‘Tanganyika” clause. Two of the dissenting judges
-considered that the omission of this second paragraph was of significant
importance. In commenting upon this point Judge de Bustamante said:

“Great Britain is not a sovereign of Palestine but simply the
Mandatory of the League of Nations and she has accepted the

1 Great Britain and France made an agreement in 1916 about the division between
them of Togoland and the Cameroons. The provisions for these Mandates are
described in my 1962 separate opinion, pp. 395-396.

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Permanent Court’s jurisdiction for any dispute arising between her,
as Mandatory, and any Member of the League from which she
holds the Mandate. As the latter could not appear as a party to a
dispute concerning the application or interpretation of the Mandate,
having regard to the restrictive terms of Article 34 of the Court’s
Statute, it is the Members of the League who have been authorized,
in their capacity as Members, to bring before the Court questions
regarding the interpretation or application of the Mandate.

Whenever Great Britain as Mandatory performs in Palestine
under the Mandate acts of a general nature affecting the public
interest, the Members of the League—from which she holds the
.Mandate—are entitled, provided that all other conditions are
fulfilled, to have recourse to the Permanent Court.” (P.C.LJ.,
Series A, No. 2, p. 81.)

Dissenting Judge Oda expressed his opinion as follows:

“Under the Mandate, in addition to the direct supervision of
the Council of the League of Nations (Articles 24 and 25) provision
is made for indirect supervision by the Court; but the latter may
only be exercised at the request of a Member of the League of
Nations (Article 26). It is therefore to be supposed that an application
by such a Member must be made exclusively with a view to the
protection of general interests and that it is not admissible for a
State simply to substitute itself for a private person in order to
assert his private claims. That this is the case is clearly shown by
a reference to Article 13 of the Mandate for East Africa, in which
Members of the League of Nations are specially authorized to
bring claims on behalf of their nationals. It is impossible to ascer-
tain why this special provision was only inserted in the East African
Mandate; but, as it appears that in all the drafts of ‘B’ Mandates
the same provision was inserted, but deleted in the final documents,
except in the case of the Mandate for East Africa, it is at all events
clear that it was intended to establish a difference between “B’ and
‘A’ Mandates to which latter category the Palestine Mandate
belongs.” (Ibid., pp. 86-87.)

The pleading of the British Government itself seemed to take the
position that the adjudication clause in the Palestine Mandate gave a
broad right to any member of the League to raise before the Court any
question involving an alleged breach of the Mandatory’s obligations
under the Mandate. In its plea to the jurisdiction, after quoting Article
11 of the Mandate dealing with concessions, the following statement
was made:

“The Mandate over Palestine is exercised by His Britannic
Majesty on behalf of the League, and the League of Nations is
pledged to the maintenance of various beneficent principles, such
as freedom of transit and communications, equality of commercial

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opportunity for all Members of the League, suppression of the
arms traffic, and so forth. This is the type of international obligation
which the Mandatory has accepted and to which any concessions
granted under Article 11 of the Mandate must conform.

The concessions granted to Mr. Rutenberg in September, 1921,
for the development of electrical energy and water-power in Pa-
lestine . .. were obliged to conform to this Article 11, and it would
have been open to any Member of the League to question provisions
in those concessions which infringed the international obligations
which His Britannic Majesty as Mandatory for Palestine had
accepted.

There is nothing in this article which affects the Mavrommatis
case.” (P.C.I.T., Series C, No. 5-I, p. 445.)

The Permanent Mandates Commission of course remarked this first
case in the Permanent Court involving a mandate. In his opening state-
ment as Director of the Mandates Section of the League Secretariat
on 23 October 1924, M. Rappard called attention to the difference in
wording in the Tanganyika Mandate which had been the subject of
comment by dissenting judges in the Mavrommatis case. He said: “Now
I have every reason to believe that this difference is entirely due to an
accident in the drafting of the Tanganyika mandate.’”’ He suggested
that the Permanent Mandates Commission should draw the matter to
the attention of the Council. In the subsequent discussion: “Sir F.
Lugard (Great Britain) observed that on the assumption that this clause
had been introduced into the mandate intentionally, the Commission
might ask the Council why it appeared in the Tanganyika mandate
only...”.

At the sixth session of the Commission, on 29 June 1925, M. Rappard
and M. van Rees both submitted memoranda on the subject, taking
opposing positions +. M. Rappard still insisted that the discrepancy
was accidental. M. van Rees considered that the second paragraph of
Article 13 in the Tanganyika Mandate “created a special guarantee”.
He said that the rights of nationals secured to them by the Mandate
are those arising out of Article 7 which in its last paragraph speaks of
“rights conferred” by this Article and says they extend “equally to com-
panies and associations”. He believed that the deletion of the second
paragraph would “entail legal consequences of the gravest nature,
since it would deprive nationals of the States Members of the League, in
their relations with Tanganyika, of a means, which they at present
possess, of defending the rights in question”. He would prefer to add
a clause to all the other mandates. But M. Rappard maintained that

tee uccision of the Court in the Mavrommatis case had shown that the
same right existed without the inclusion of the second paragraph. This
view would mean that paragraph one could include the claims cases

1 Annexes 5a and 5b to the Permanent Mandates Commission Minutes, 6th
session.

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covered by paragraph two (the Tanganyika clause) but it would still be
true that paragraph one must cover also other types of cases as its
broad language indicates. As against the “‘accidental” thesis of M.
Rappard, Sir F. Lugard said that “he had asked his Government [Great
Britain] whether it was aware of any reason for or against an amendment
of the text. His Government had replied that it had no objection to the
text being altered, but at the same time it appeared incorrect to assert
that the clause was accidental”.

The Commission decided to do nothing about the matter but M. van
Rees noted that there were other differences in the Tanganyika Mandate.
The reason for the differences has been noted.

For doctrinal support, the joint dissent of 1962 cites only the Hague
Lectures of Mr. Feinberg which were also relied on in 1962 in the dis-
senting opinion of Judge Winiarski. But Mr. Feinberg himself refers to
the fact that Professor (as he then was) McNair and Professor Quincy
Wright held views differing from his. Judge Charles de Visscher in his
Aspects récents du droit procédural de la Cour internationale de Justice,
1966, page 73, states that the doctrine was completely divided on the
question. One can cite many views on each side of the question. I call
attention merely to the following.

Wright, in his magistral treatise on the mandates, in discussing the
Tanganyika clause at page 158 concludes that the Court in Mavrommatis
did hold that a claim may be brought by a State on behalf of a citizen
when the citizen’s rights in the mandate are violated. At this point he
says it had not been decided (semble by the Court) whether any member
of the League could invoke the Court’s jurisdiction in connection with
observance of the mandate “where no citizen and no material interest of
its own is involved”. But at page 475 he states his own conclusion flatly:

“Every member of the League can regard its rights as infringed
by every violation by the mandatory of its duties under the mandate,
even those primarily for the benefit of natives, and can make repre-
sentations which if not effective will precipitate a dispute referable
to the Permanent Court of International Justice if negotiation fails
to settle it.”

The history of the drafting and sound reasoning sustain the correctness
of this conclusion.

Professor McNair writing in 1928. made two statements which Feinberg
and de Visscher both interpreted—quite properly—as indicating the
author’s at least tentative agreement with Professor Quincy Wright’s
view. In McNair’s article in the Cambridge Law Journal, April 1928,
entitled “Mandates”, at page 6, note 8, one reads:

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“There is no provision for the reference of a petition to the Perma-
nent Court, but it has been suggested that this could occur if some
other member of the League were prepared to take up the question,
which might then become a dispute between that member and the
mandatory.”

And at page 11, note 8:

“All the mandates contain a clause which provides that any
dispute between a mandatory and a member of the League which
cannot be settled by negotiation shall be referred to the Permanent
Court of International Justice: see the Mavrommatis Palestine
Concessions case . . . Is this right of bringing a dispute with a manda-
tory before the Court only available when the interests of the other
party or its nationals are affected, or can it be used altruistically
by a member of the League having no such interests to protect, but
merely seeking the faithful observance of the terms of a mandate?”

Twenty-two years later, as a judge on the International Court of
Justice, Sir Arnold McNair (as he then was) answered his own question
in his separate opinion attached to the Court’s Advisory Opinion of
11 July 1950, on the International Status of South West Africa. He said:

“Which then of the obligations and other legal effects resulting
from the Mandate remain to-day? The Mandatory owed to the
League and to its Members a general obligation to carry out the
terms of the Mandate and also certain specific obligations, such as
the obligation of Article 6 to make an annual report to the Council
of the League. The obligations owed to the League itself have come
to an end. The obligations owed to former Members of the League,
at any rate, those who were Members at the date of its dissolution,
subsist, except in.so far as their performance involves the actual
co-operation of the League, which is now impossible. (1 shall deal
with Article 6 and the first paragraph of Article 7 later.) Moreover,
the international status created for South-West Africa, namely
that of a territory governed by a State in pursuance of a limited
title as defined in a mandate, subsists.

Although there is no longer any League to supervise the exercise
of the Mandate, it would be an error to think that there is no control
over the Mandatory. Every State which was a Member of the League
at the time of its dissolution still has a legal interest in the proper
exercise of the Mandate. The Mandate provides two kinds of ma-
chinery for its supervison—judicial, by means of the right of any
Member of the League under Article 7 to bring the Mandatory com-
pulsorily before the Permanent Court, and administrative, by means
of annual reports and their examination by the Permanent Mandates

369
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SOUTH WEST AFRICA (DISS. OP. JESSUP)

Commission of the League.” (C.J. Reports 1950, p. 158.) (Italics
added, except for the words “judicial” and “administrative”’.)

Judge Read in his separate opinion on the same matter shared this
view, saying:

“The first, and the most important [of the international obligations
of the mandatory], were obligations designed to secure and protect
the well-being of the inhabitants. They did not enure to the benefit
of the Members of the League, although each and every Member
had a legal right to insist upon their discharge ... Each Member of
the League had a legal interest, vis-à-vis the Mandatory Power, in
matters ‘relating to the interpretation or the application of the pro-
visions of the Mandate’; and had a legal right to assert its interest
against the Union by invoking the compulsory jurisdiction of the
Permanent Court (Article 7 of the Mandate Agreement).” (Loc. cit.,
pp. 164, 165.) (Italics added.)

Norman Bentwich concluded his Hague lectures in 1929 as follows:

[Translation] “The Court has not as yet been called upon to
deal with the application or interpretation of the other articles
concerning public rights, economic equality, or the other inter-
national obligations undertaken by the Mandatory. But, above the
Mandates Commission and above the Council of the League, it
remains the supreme guardian of the rights of nations in the fulfilment
of the international trust which is conferred on the Mandatory.
If the Permanent Commission constitutes the international Areo-
pagus, the Court is the international Palladium of justice in all
the activities of the League of Nations, of which the mandates
system forms an important part.” (29 Recueil, 1929, p. 119 at 180.)

Since the Tanganyika clause is in a British mandate and since the
British representative on the Permanent Mandates Commission was
Sir Frederick Lugard who has already been quoted on the fact that the
inclusion of the second paragraph of the jurisdictional article was not
accidental, one may also recall a statement he made in a memorandum
submitted at the fifth session of the Permanent Mandates Commission
in 1924, which shows his conception of the vital role which the Court
might play in connection with the mandates. His memorandum discussed
the hesitancy of capital to invest in mandates and he wrote (at p. 177 of
the Minutes of the Fifth Session):

370

“Wherever the power of revocation (in consequence of breach of
contract by mal-administration) may exist, there can be no doubt
that in this almost inconceivable contingency the International
Court of Justice (sic) would be the agency employed and that it
would make full provision for all legitimate claims and rights.”
373 SOUTH WEST AFRICA (DISS. OP. JESSUP)

Finally, one may note the dissenting opinion of Judge Nyholm in a
further phase of the Mavrommatis case. In sketching the history of the
establishment of the mandates, he says the Powers wanted—

“_,.. a guarantee that the administrations should act in accordance
with the principles adopted in the interests of the community of
nations by the Covenant.

The guarantee which offered itself consisted in conferring on
the Court—a new international institution—jurisdiction to decide
any questions regarding the interpretation and application of the
Mandate.

Mandatories were not to infringe the rights either of States or of
individuals. Each State therefore has a right of control which it
may exercise by applying to the Court. It is true that there is no
provision giving the Court jurisdiction as regards the relations
between individuals and the mandatory, but it is to be presumed
that, if a subject of a certain State suffered injury, his government
would, if necessary, take action on his behalf. When a suit is con-
ducted between a mandatory and another Member of the League
of Nations, regarding a question of interpretation or application
—which is precisely the case in the present suit—Article 26 of the
mandate gives the Court jurisdiction.” (Case of the Readaptation
of the Mavrommatis Jerusalem Concession (Jurisdiction), Series A,
No. 10, 1927, p. 26.)

SECTION V. THE MOTIVATION AND OPERATION OF CERTAIN OF THE PEACE
SETTLEMENTS OF 1919-1920—tTHE LEGAL RECOGNITION OF
“GENERAL INTEREST”

Arguments which avoid the actual text of the jurisdictional clause
in paragraph 2 of Article 7 of the Mandate for South West Africa have
been supported by a general assertion that it is inconceivable that the
statesmen of 1919 would have had in mind the possibility of recognizing
that States may have a general interest—cognizable in the International
Court—in the maintenance of an international régime adopted for the
common benefit of the international society. This argument ignores the
historical fact of the wave of idealistic aspiration which responded after
the long agony of the war years to the vision proclaimed by President
Wilson. As Lord (then Professor) McNair wrote in 1928:

“There was perhaps no part of the Covenant that called forth
more derision from the cynical and the worldly-wise than the
Mandates System contained in Article XXII ... The Mandates
System represents the irruption of the idealist into one of the
periodical world settlements which have in the past lain too much
in the hands of so-called ‘practical men’.” (Editor’s Preface to
Stoyanovsky, The Mandate for Palestine, 1928.)

No doubt some statesmen were cynical but great charters of human
liberties were sigred and ratified and became binding on States.

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The facts are dealt with rather fully in my separate opinion in the
South West Africa cases in 1962 (at pp. 425 to 433). It is there recalled
that Article 11 of the Covenant of the League of Nations which formed
part of the Treaty of Versailles, recognized that peace was indivisible.
From the Constitution of the International Labour Organisation, which
was also part of the same treaty, passages were quoted which reveal
agreement upon the common interest of all States in humane conditions
of labour throughout the world. The provisions for appeal to the Perma-
nent Court of International Justice and subsequent judicial proceedings
to give effect to this common concern in labour problems, were noted 1.

Attention was also called to the fact that the Permanent Court was
likewise given a role in systems established—partly in the peace treaties
and partly by subsequent international agreements—for the protection
of minorities. It was in keeping with the same spirit and action of the
time of the Paris Peace Conference of 1919, that the Covenant of the
League contained its famous Article 22 which recognized that the
“well-being and development” of “peoples not yet able to stand by
themselves under the strenuous conditions of the modern world” “form
a sacred trust of civilisation”. It was therefore natural one may even
say inevitable, that when the mandates were drafted, provision was made
for resort to the Permanent Court of International Justice by any member
of the League.

To be sure, each area of general interest in the Peace Settlements
had its own system and the role of the Court was different as suited
the needs of each case. But the point which stands out is the recognition
of the right of States in the general interest, and without needing to
assert direct injury suffered by them or their nationals, to resort to the
Court for an authoritative interpretation of the meaning of the obligations
which States had assumed in order that labour, and minorities and
dependent peoples might enjoy international protection. It is true that
the only cases involving mandates which were referred to the International
Court were the Mavrommatis Palestine Concession cases; why this was
true may be a matter of speculation but some evidence relative thereto
will be adduced later in this opinion. At the moment, it is pertinent to
cite authority for the broad proposition asserted above, that in the era
of the Paris Peace Treaties, States could invoke the Court in the general
international interest when their own particular interests were not
involved.

1 The case of Ghana v. Portugal was described; since then the I.L.O. has had a
further judicial inquiry and decision in the case of Portugal v. Liberia, which also
involved the question of a contract labour convention; see International Labour
Office, Official Bulletin, Vol. XLVI, No. 2, April 1963.

372.
375 SOUTH WEST AFRICA (DISS. OP. JESSUP)

The case of the Interpretation of the Statute of the Memel Territory
(P.C.LJ., Series A/B, No. 47, p. 243) is instructive. Article 17 of the
Convention of 8 May 1924, concerning Memel, reads as follows:

“The High Contracting Parties declare that any Member of the
Council of the League of Nations shall be entitled to draw the
attention of the Council to any infraction of the provisions of the
present Convention.

In the event of any difference of opinion in regard to questions
of law or of fact concerning these provisions between the Lithuanian
Government and any of the Principal Allied Powers members of
the Council of the League of Nations, such difference shall be
regarded as a dispute of an international character under the
terms of Article 14 of the Covenant of the League of Nations.
The Lithuanian Government agrees that all disputes of this kind
shall, if the other Party so requests, be referred to the Permanent
Court of International Justice. There shall be no appeal from the
Permanent Court’s decision, which shall have the force and value
of a decision rendered in virtue of Article 13 of the Covenant.”

Germany brought to the Council under the first paragraph of Article 17
a complaint against certain actions of Lithuania in Memel. M. Colban,
as Rapporteur of the Council, said it was apparent that there would not
be a unanimous vote to ask the Permanent Court for an advisory
opinion? but he reminded the four Principal Powers of their right to
bring a case to the Court under paragraph 2 of Article 17. Although
the British representative on the Council, the Marquess of Londonderry,
also regretted the objection to asking for an advisory opinion “which,
in his view, was the natural method of obtaining an answer to those
questions” of law which were involved, Great Britain, France, Italy
and Japan instituted proceedings by filing an application in the Court.
Lithuania filed an objection to the jurisdiction in respect of two points
in the case of the four Powers since those two matters had not been
previously submitted to the Council, a step which Lithuania considered
was a prerequisite under the treaty. In their observations on the Lithua-
nian objection, the four Powers insisted that the procedure before the
Council and the procedure in the Court were two separate and distinct
actions and one was not dependent on the other. They said (Series C,
No. 59, 1932, p. 135):

[Translation] “The object of the procedure before the Council
is the examination of an ‘infraction of the provisions of the Con-
vention’. The procedure before the Court is concerned with ‘any
difference of opinion in regard to questions of law or fact’. Such

1 There was at the time some uncertainty as to whether the Council could ask
for an advisory opinion by a majority vote; see Hudson, The Permanent Court
of International Justice, 1920-1942, 1943, sec. 469.

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376 SOUTH WEST AFRICA (DISS. OP. JESSUP)

difference of opinion may well arise without any infraction having
been noted; it may become apparent in the course of nego-
tiations with regard to the correct construction of the 1924 Con-
vention, and the Court may be called upon to give a declaratory
judgment.”

In his oral argument, Sir William Malkin, as Agent for the British
Government, said:

“In this case the Applicant Powers are not here to defend their
particular interests, nor to maintain any rights of their own which
they allege to have been infringed. Their only interest to is to see
that the Convention to which they are Parties is carried out by
Lithuania in accordance with what they conceive to be its proper
interpretation . . .” ({bid., p. 173.)

In his observations on the preliminary objection of Lithuania, M. Pi-
lotti, Agent for the Italian Government, also stated that no one of the
Applicant Powers had any individual interest which it wished to have
established against Lithuania. He said that they had “un droit de
caractère international à ce que l’autonomie du Territoire ... soit
respectée” (Joc. cit., p. 190). (How similar this is to Applicants’ right to
have respected the mandate character of South West Africa!)

The Court, in rejecting the Lithuanian objection, closely followed
the observations of the four Powers. In agreeing that a case could be
brought in the Court where there was a difference of opinion even when
there had been no infraction of the treaty, the Court in effect agreed
also with the position of Sir William Malkin and, in its later judgment
on the merits (Series A/B, No. 49, 1932, p. 294 at 337), took account
of the apparent fact that the four Powers merely wanted “to obtain
an interpretation of the Statute which would serve as a guide for the
future” +,

It is, to be sure, true that the above observations were made with
reference to a treaty to which the four Applicant States were parties, but
the point was not whether they were parties, but whether they had
standing under the treaty to resort to the Court. Their standing derived

1 In its judgment on the preliminary objections at pages 248-249, the Court said:

“The object of the procedure before the Council is the examination of an
‘infraction of the provisions of the Convention’ which presupposes an act
already committed, whereas the procedure before the Court is concerned with
‘any difference of opinion in regard to questions of law or fact’. Such differ-
ence of opinion may arise without any infraction having been noted. It is true
that one and the same situation may give rise to proceedings either before the
Council under the first paragraph, or before the Court under the second; but
that will not always be the case, and this suffices to prove that the two proce-
dures are not necessarily connected with one another ... If the principle of
the unity of the proceedings were to be adopted, it would follow that a case
could not be proceeded with before the Court, under paragraph 2 of Ar-
ticle 17, if it had been brought before the Council, under paragraph 1...”
(italics added.)

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377 SOUTH WEST AFRICA (DISS. OP. JESSUP)

from the adjudication clause, not from some other conferment of a
substantive right. This Court has held that the Mandate is a treaty and
as a matter of historical fact, the Principal Powers were just as much
the authors of the Mandate for South West Africa as they were of the
Statute of the Memel Territory which was annexed to the Treaty of
8 May 1924. In the Memel case the burden of obligations was on a
single State—Lithuania—while the Principal Powers were given rights
and interests. In the South West Africa case, the burden of obligations
is on a single State—the Mandatory, South Africa—while all member
States were given rights and interests. The mandates system was of
concern, not just to the Principal Powers, but to all Members of the
League and it was for that reason that Article 7 of the Mandate re-
cognizes the right of all Members of the League to refer to the Court any
dispute whatever concerning the interpretation or application of the
Mandate. It is the same situation in the International Labour Organisa-
tion, where, according to Article 411 (later renumbered Article 26) of
the Constitution:

“Any of the Members shall have the right to file a complaint
with the International Labour Office if it is not satisfied that any
other Member is securing the effective observance of any Convention
which both have ratified in accordance with the foregoing articles.”

As has been explained above, such a complaint may lead to a judicial
proceeding as in the cases of Ghana v. Portugal and Portugal v. Liberia
and there may be ultimate resort to this Court; but at no stage is the
applicant State required to prove a direct injury to its own individual
interests.

In the minority treaties, one sees a further illustration of the fact
that the statesmen of 1919 recognized the right of States to invoke the
jurisdiction of the Court in the interest of special groups even when
their individual interests were not affected. This is brought out very
clearly in the dissenting opinion of Judge Huber in the case of Minority
Schools in Upper Silesia (P.C.I.J., Series A, No. 15 (1928), at p. 50):

“Article 72, paragraph 3 [of the Geneva Convention] is the literal
reproduction of Article 12 of the Minorities Treaty of June 28th,
1919, and of analogous provisions of other treaties. The jurisdiction
conferred by this clause is in every respect very particular in charac-
ter and goes beyond the province of general international law;
for Article 72, paragraph 3, confers on every Power being a Member
of the Council, even if it is not a contracting Party to the Minority
Treaties or to the Geneva Convention, the right of appealing to the
Court, and such judicial action is based upon stipulations which re-
late not to rights of the applicant State or to those of its nationals

375
378 SOUTH WEST AFRICA (DISS. OP. JESSUP)

on whose behalf it might take action, but to the relations between
the respondent State and its own nationals.” (Italics added.)

The principle that States were entitled to bring to the Court cases
which did not involve their own direct interests is not affected by the
fact that the right of recourse in the minority treaties was limited to
Members of the Council of the League. Although in the Memel case,
the Powers who could resort to the Court were all parties to the treaty,
in several of the minority cases, the right of recourse belonged not only
to the Permanent Members of the Council who may have been parties,
but also to the non-permanent Members who were elected from time
to time and who, as Judge Huber pointed out, did not need to be, and
often were not, parties to the minority treaties which gave them the
right to invoke the Court 1. The States in question derived their “standing”
before the Court from the adjudication clause, not from some other
conferment of a substantive right.

The point which has been made is underscored by another aspect of
the minorities treaties. For example, the Treaty with Czechoslovakia of
10 September 1919 (I. Hudson, International Legislation, p. 298) has an
Article 14 which is an adjudication clause giving to any Member of the
Council of the League the right to submit to the Permanent Court of
International Justice any difference of opinion as to questions of law
or fact arising out of the articles which contain the stipulations for the
protection of the minorities. Thereafter, the Treaty includes a third
chapter which contains specific clauses assuring certain economic and
commercial rights to the Allied and Associated Powers; but the adjudica-
tion clause does not apply to the articles in this Chapter. The same con-
struction is found in the minorities treaties with Yugoslavia (ibid., p. 312)
and with Romania (ibid., p. 426). This structure of the treaty was a
natural one since normally an adjudication clause would not be included
in the usual treaty of commercial and economic rights to which the
economic chapters of the minorities treaties corresponded. But the
minorities provisions themselves were a special feature of the post-war
treaties with certain States and here the system was controlled by both
the Council of the League and the Court. In the mandates, the economic
clauses—as will be demonstrated shortly—were an integral part of the
whole system which included the “open door” and since mandatories did
not have sovereignty over the mandated territories, submission to the
Court’s jurisdiction was part of the control of all aspects of mandatory
administration. Just as in the minorities treaties, the provisions for the
protection of certain peoples who, in the case of the mandates, were
considered not yet able to stand by themselves, were also covered by
the compulsory adjudication clause. If it be thought that all Members

1 This precedent is one of the reasons why I do not find it necessary to discuss
the issue whether the Members of the League were “parties” to the Mandates.

376
379 SOUTH WEST AFRICA (DISS. OP. JESSUP)

of the League were not “parties” to the mandates, then one must re-
member that the judicial protection of the minorities could be set in
motion by States which were not parties to the treaties but who were
elected non-permanent members of the Council.

My separate opinion in 1962 also called attention (at p. 426) to the
fact that in more recent times, the same general appreciation of a right
to turn to the International Court of Justice for interpretation, applica-
tion or fulfilment of a treaty having a broad humanitarian interest, is
recognized in— .

“the Genocide Convention, which came into force on 12 January
1951 on the deposit of the twentieth ratification. [It] provides in
Article IX:

‘Disputes between the Contracting Parties. relating to the
interpretation, application or fulfilment of the present Convention,
including those relating to the responsibility of a State for geno-
cide or for any of the other acts enumerated in article III, shall
be submitted to the International Court of Justice at the request
of any of the parties to the dispute’. (Vol. 78, United Nations
Treaty Series, pp. 278 at 282).

As this Court said of the Genocide Convention: ‘In such a
convention the contracting States do not have any interests of their
own; they merely have, one and all, a common interest, namely
the accomplishment of those high purposes which are the raison
d’être of the convention. Consequently, in a convention of this type
one cannot speak of individual advantages or disadvantages to
States, or of the maintenance of a perfect contractual balance
between rights and duties. The high ideals which inspired the
Convention provide, by virtue of the common will of the parties,
the foundation and measure of all its provisions.” (Z.C.J. Reports
1951, at p. 23.)”

In this case there was a joint dissent of Judges Guerrero, McNair,
Read and Hsu Mo. They expressed no disagreement with the passage
just quoted. At page 46 they said:

“Tt is an undeniable fact that the tendency of all international
activities in recent. times has been towards the promotion of the
common welfare of the international community with a corres-
ponding restriction of the sovereign power of individual States.
So, when a common effort is made to promote a great humanitarian
object, as in the case of the Genocide Convention, every interested
State naturally expects every other interested State not to seek any
individual advantage or convenience, but to carry out the measures
resolved upon by common accord.”

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There are various other situations recognized in law where standing
to sue and to recover judgment is accorded by an adjudication clause
to those who have a somewhat more direct interest than that which
appertains to those whose concern is based upon the general welfare,
the orderly operation of the international community and the avoidance
of threats or dangers to the peace. For example, any maritime or ship-
owning State may have a right under a treaty or other international
instrument to ask the Court for an interpretation of a provision for
passage in a waterway even though its own ships have not been involved
in any alleged infraction. Thus in the Wimbledon case (P.C.I.J., Series A,
No. I, at p. 7), the Governments of Great Britain, France, Italy and
Japan joined in an application to the Court under Article 386 of the
Treaty of Versailles which gave to “any interested Power” a right of
appeal to the Court “in the event of violation of any of the conditions
of Articles 380 to 386, or of disputes as to the interpretation of these
Articles”. It did not specify that this right of appeal was confined to
States parties to the treaty. The case was one in which a British ship,
chartered to a French company, was denied by Germany passage through
the Kiel Canal. Germany having challenged their right to bring the action,
the Applicants said that—

<<

... les quatre Puissances de qui émane la requête sont intéressées
au respect du principe du libre passage dans le canal de Kiel et
à Vexact exécution des clauses du traité de Versailles”. (Series €,
No. 3, Add. Vol., p. 65.) (Italics added.)

This was the interest they avowed. The French claim for damages was
a separate and rather incidental point. The Court went further. It said
that all four Powers had a “clear interest”—

G

*... since they all possess fleets and merchant vessels . .. They are
therefore, even though they may be unable to adduce a prejudice
to any pecuniary interest, covered by the terms of Article 386...”
(P.C.LJ., Series A, No. 1, pp. 20 and 33.) (Italics added.)

It must be noted that Article 386 was an adjudication clause and
Article 380 did not specifically confer a substantive right on “interested
Powers”. Article 380 merely imposed an obligation on Germany and
the substantive right of a maritime Power needs to be implied from
Article 386.

Similar applications to the Court might be made by any of the large
number of States parties to the Statute on the Régime of Navigable
Waterways of International Concern annexed to the Barcelona Con-
vention in 1921, in force on 31 October 1922, of which convention it
forms ‘‘an integral part”. Under Article 22—

“... any dispute between States as to the interpretation or appli-
cation of this Statute which is not settled directly between them

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381 SOUTH WEST AFRICA (DISS, OP. JESSUP)

shall be brought before the Permanent Court of International
Justice, unless under a special agreement or a general arbitration
provision steps are taken for the settlement of the dispute by arbi- |
tration or some other means”. (I. Hudson, International Legislation,
p. 658. See comparable provision in the Statute on Freedom of
Transit annexed to the Barcelona Convention on Freedom of Tran-
sit of the same date; ibid., p. 631.)

The burden of the obligations of this Convention would fall on States
controlling a waterway of international concern, but a larger number
of States have the right to appeal to the Court. “In the case of states
having treaty rights in the waterway, no reliance on the use of the high-
way is needed as a basis for a complaint of discrimination or exclusion.”
(Baxter, The Law of International Waterways, 1964, p. 183, with particular
reference to the Suez Canal but equally applicable in a broader context.)

The standing of Applicants in the present cases rests squarely on the
right recognized in paragraph 2 of Article 7 of the Mandate for South
West Africa, which is a right appertaining to many States. But it must
also be recognized that Applicants as African States, do in addition
have a special interest in the present and future of the mandated terri-
tory of South West Africa and its inhabitants. This special interest
is perhaps even greater than that of some maritime State in the right
of passage through the Kiel Canal. “Geographical contiguity” is re-
cognized in paragraph 6 of Article 22 of the Covenant of the League as
one of the bases for the allocation of the ‘C’ mandates. It is trite to
refer to the shrinkage of territorial space by modern means of transporta-
tion and communication, but in a very real sense all African States
south of the Sahara are contiguous to each other, and their interrelated
interests—geographical and other—cannot be denied. Although the
Court’s Judgment of today does not seek to explore this point, the con-
clusion which it reaches denies the existence of any special right or
interest of the Applicants, a finding which would need to be fully but-
tressed by argument and not left to implication.

The impact on other African States south of the Sahara of racial
conflict and the practice of apartheid in South West Africa could be,
. and is, just as great if not greater than certain impacts which Res-
pondent concedes. In the Counter-Memorial, Book II, page 177, it is
stated:

“Then there were also contained in the Mandate instruments
other provisions, primarily intended for the benefit of the inhabi-
tants, the non-observance of which could, however, affect also
the material interests of individual League Members. Examples
would be the provisions with regard to the slave trade, and provi-
sions with regard to traffic in liquor which, if violated by a Man-

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datory, could possibly affect neighbouring or even other States,
which, being Members of the League, would then have a legal
right to object. In respect of these provisions, individual League
Members would have been vested with rights or legal interests
either because the instruments clearly indicated an intention that
such rights should vest in Members individually, or because the
impact of a violation of the terms of the Mandate on the material
interests of individual Members suggests that it was intended
that such Members would be entitled as of right to resist such a
violation.”

Respondent here concedes a principle which the Judgment of the
Court denies, that is that under certain circumstances, Members of the
League did have a legal right to complain about violations of those
clauses of the Mandate which the Judgment calls “conduct” clauses,
i.e., clauses for the performance of the sacred trust. It then becomes a
question of factual appraisal whether policies of racial discrimination
in South West Africa have an impact on States such as the Applicants.
An allegation of racial discrimination, like allegations of the existence
of the slave trade or traffic in liquor gives them, under paragraph 2 of
Article 7, a right to have the Court pronounce upon the merits of their
claim. But this approach does not negative other conclusions in this
opinion concerning the origin and nature of Applicants’ right to judg-
ment on their Applications filed under paragraph 2 of Article 7. It does
show that Applicants have standing to secure from the Court judgment
on their submissions, whether the judgment be favourable or not.

The Judgment of the Court rests upon the assertion that even though—
as the Court decided in 1962—the Applicants had locus standi to insti-
tute the actions in this case, this does not mean that they have the legal
interest which would entitle them to a judgment on the merits. No
authority is produced in support of this assertion which suggests a
procedure of utter futility. Why should any State institute any pro-
ceeding if it lacked standing to have judgment rendered in its favour
if it succeeded in establishing its legal or factual contentions on the
merits? Why would the Court tolerate a situation in which the parties
would be put to great trouble and expense to explore all the details of
the merits, and only thereafter be told that the Court would pay no
heed to all their arguments and evidence because the case was dismissed
on a preliminary ground which precluded any investigation of the merits?

Economic Equality

Since the Judgment of the Court undertakes to analyse the whole man-
dates system and not only the ‘C’ mandates, the intention of the drafters
of 1919 in providing for recourse to the Court in relation to provisions
of the mandates other than those already considered, is relevant to the

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general problem of this analysis. It is well known that in addition to
the idealistic concern for the welfare of the indigenous peoples who
were not yet able to stand by themselves, the mandates system, in
rejecting the idea that colonies formerly belonging to the defeated enemy
would be appropriated as part of the spoils of war and for the benefit
of the conquerors, built upon the practical proposition that the mandated
areas—at least those under the ‘A’ and ‘B’ categories—should offer
equal economic opportunities to all Members of the League; this was
the principle of the “open door”. It was incorporated in the ‘A’ and ‘B’
mandates and the long delay in approving the ‘C’ mandates was. due
to unsuccessful Japanese insistence on having it applied to ‘C’ mandates
in the Pacific area. The Japanese representative at the Peace Conference
was able to invoke an argument which continued to be advanced in
ensuing years. In the Council of the Heads of Delegations at Paris
in December 1919, he said that “the principle of equality of treatment
in the economic sphere must be understood among the guarantees
provided ... in the interest of the native population”. (United States
Foreign Relations, Paris Peace Conference 1919, Vol. IX, p. 642.) He
argued further that the guarantees in paragraph 6 of Article 22 included
the equality of treatment mentioned in paragraph 5 since “‘that equality
of treatment too was as much in the interests of the native population
as in that of foreign nationals”. (Jbid., p. 645.) The Japanese view did
not prevail in regard to the ‘C’ mandates but in regard to the system
as a whole the point was clearly made.

“The Mandates conception as first set forth by General Smuts
and President Wilson did carry a general requirement of the open
door, and the United States subsequently insisted that it was only
after this requirement had become an ‘understanding’ of the Peace
Conference that it ‘felt itself able and willing to agree that the
assignment of certain enemy territory by the victorious powers
would be consistent with the best interests of the world’.” (Quincy
Wright, Mandates under the League of Nations, 1930, p. 260; see
also, ibid., pp. 475, 477 and 479.)

One of the leading French commentators on the League of Nations
(Ray, Commentaire du Pacte de la Société des Nations, 1930, pp. 625-
626) is emphatic in saying that the provisions for equality of economic
treatment found their justification in the last analysis in the interests of
the indigenous population. He agrees with the contention of the Japanese
representative that the guarantees stipulated in paragraph 5 of Article 22
extend equally to the mandates covered by paragraph 6, that is, to
the ‘C’ mandates.

The Permanent Mandates Commission included in its questionnaire—
even for the ‘C’ mandates—a question about economic equality and
its reports to the Council frequently refer to these matters. It is, there-

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fore, correct to say that the economic rights which the Judgment of the
Court concedes belong to individual Members of the League, were of
concern to the League itself. The question of economic equality was
for example discussed at some length at the 12th Session of the Perma-
nent Mandates Commission on 29 October 1927. There was frequent
emphasis upon the importance of the principle of economic equality
and upon the fact that the safeguards of this equality were inserted for
the advantage of the inhabitants and not merely for the benefit of indi-
vidual Members of the League. In the discussion M. Rappard stated:

“The clause prescribing economic equality had been inserted
in the Covenant both in the interests of the territory and in the
interests of the States Members of the League. In his opinion,
those interests were one and the same. There might, however,
arise a contradiction between the interests of the mandatory power
and the interests of the mandated territory, and in that case it was
for the Mandates Commission to intervene in order to obtain
a solution favourable to the mandated territory.” (Minutes of the
12th Session, p. 66.)

Similarly, the Marquis Theodoli, Chairman of the Commission, em-
phasized that—

‘the opinion had been formed in the public mind and in the Man-
dates Commission that the mandates system had been established
in the interests of the natives, and that the rules imposed on the
mandatory Powers with that object in view indicated a progress
toward increasing the welfare and development of the indigenous
populations of certain territories whose civilisation was backward.
He shared that opinion...”

He continued, however, to emphasize that “there lay at the basis of the
whole system another principle of the highest importance, namely, the
principle of economic. equality’ (ibid., p. 168).

Since it is agreed in the Judgment of the Court that Members of the
League might invoke the adjudication clauses of the mandates in order
to assure observance of the provisions directed to the maintenance of
economic equality, and since these same provisions were designed also
for the benefit of the indigenous populations, it is clear that arguments
which seek to dilute the reach of the adjudication clause by the theory
that the mandatories would never have agreed to a system which might
subject them to litigious harassment, is ill-founded and cannot be
accepted. It may be well to recall at this point what has been described
above, namely that the so-called ‘‘missionary” clause was more in the
nature of a guarantee for the welfare of the indigenous populations than
for the benefit of nationals of Members of the League.

In a very recent study of the origins of the mandates system one
reads:

“The open door principle, especially as understood in the late
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nineteenth century, is an integral part of the dual mandate [i.e.,
obligations owed both to the peoples under trust and to the family
of nations] in that it rests on the implicit assumption that a dependent
people’s economic interests are best served when the benefits of
colonial trade are open to all.” Twitchett, ““The Intellectual Genesis
of the League of Nations Mandate System”, III Znternational Rela-
tions, No. 13, April 1966, p. 16 at p. 18.

It has now been shown that the mandates, in providing, through
recognition of general rights in an adjudication clause, access to the
International Court, present no juridical impossibility and no inherent
improbability so far as the international practices of the period following
the end of the First World War are concerned. The alleged juridical
impossibility or at least legal novelty, of the recognition of substantive
legal rights in a general interest may also be examined in the light of
certain municipal legal principles and practices.

The Problem of “Standing” in Municipal Law

In his dissenting opinion of 1962 (at p. 452) Judge Winiarski speaking
of the argument about a right of action in a general interest, said that—

‘“,.. reference has been made in this connection to an institution
under the old Roman penal law known as ‘actio popularis which,
however, seems alien to the modern legal systems of 1919-1920 and
to international law”.

I would leave to others explanations of ancient precepts of penal law,
but at least one modern legal system is entirely familiar with court
actions which are allowed when the plaintiff shows no direct individual
injury.

The problem of “standing” (locus standi) is familiar in the law of the
United States. The law of standing particularly in terms of American
constitutional law, or the law of federal jurisdiction, has to do with
challenges of governmental action. The parallel situation in international
law might be considered to be the right of recourse against an inter-
national organization or one of its organs. That subject was explored
by the Institut de droit international in 1957, but is not involved here.
The right of individual Members of the League of Nations to resort to
the Permanent Court of International Justice in case of certain disputes
with a mandatory over the interpretation or application of the mandate,
as provided in paragraph 2, Article 7, of the Mandate, could involve
a situation in which a judicial decision of the Court might conflict with
a political decision of the Council of the League. But even in those
situations, the Court action would not be against the League or one of
its organs or officers, nor need it be an attack on the validity of the

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Council’s decision as if such decision were ultra vires. No suggestion
is made here that there existed in the international judicial system a
remedy comparable to a writ of mandamus under the law in the United
States to compel an officer or organ of the United States Government
to desist from taking some action alleged to be unconstitutional. The
interest which the American law of standing has for the present case lies
in the question whether in some legal systems a party “‘interested’’ and
‘adversely affected in fact”, or as expressed in some statutes, “‘any
part aggrieved”, has standing, that is, a legal right which the courts
will protect.

Many aspects of the problem of “Standing to Secure Judicial Review” !
have no parallels in the International Court of Justice. But the argumenta-
tion in the Judgment of this Court in this South West Africa case, in
challenging the right of any State to secure a judgment of this Court
in cases where the right of judicial recourse is granted by treaty but where
the applicant State does not allege a particular substantive legal interest
would—if it were correct—lead to the conclusion that the large body
of United States common and statutory law on the matter is almost a
juridical impossibility. In the American jurisprudence there are cases
which insist that the plaintiff should show a direct injury to his interest,
as in some of the taxpayers’ suits. But this is by no means a universal
rule. A “taxpayer, or citizen and voter, has such an interest in the form
of government under which he lives as to be entitled to maintain the
action for a declaratory judgment with respect to matters relating
thereto”, e.g., matters “relating to an amendment of the city charter
with respect to the election of councilmen” (26 Corpus Juris Secundum,
p. 271. Italics added). A State, a member of the international community,
has a stronger and even more direct interest in matters relating to the
fulfilment of fundamental treaty obligations contained in a treaty which
has what may fairly be called constitutional characteristics.

Although the law of England has not developed on this matter as
has that in the United States, as far back as 1898, the Court of Queens
Bench heid that a parish vicar “‘clearly has sufficient interest” to seek
mandamus against liquor licensing authorities. (The Queen v. Cotham,
[1898] 1 Q.B. 802.) Citizens in the United States are recognized to have
a right to resort to the courts to seek to have public grievances remedied.
The “public action—an action brought by a private person primarily
to vindicate the public interest in the enforcement of public obligations—

1 This is the title of two articles by Professor Louis L. Jaffe in the Harvard Law
Review, Vol. 74, 1961, p. 1265, and Vol. 75, 1961, p. 255.

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has long been a feature of our English and American law”. (Jaffe, op. cit.,
p. 302.) Article 7 (2) of the Mandate recognized that any Member of
the League of Nations had a similar right in the interest of upholding
the “sacred trust’’.

That the law in Italy and in other countries may be different (cf.
Galeotti, The Judicial Control of Public Authorities in England and in
Italy, 1954) is not relevant to my argument since I am not seeking by
the methods of comparative law to establish a “general principle of
law’’. I agree with the observation that it was “‘rhetorical abuse rather
than reasoning” (Jaffe, op. cit., p. 1289) when an Ohio court said that to
allow a citizen to secure enforcement of Sunday laws would be to permit
“any crusading zealot to ride off, helter-skelter, throughout the state
compelling police or municipal courts to arrest persons for alleged
offences in which the relator has no legitimate concern”. The right of
action given to Members of the League by Article 7 (2) of the Mandate,
was not granted as a concession to helter-skelter zeal. |

J accept the proposition that—

“,.. the very recognition of the plaintiff’s right to sue is the law’s
best testimony to the existence of a substantive right. To put it
another way: the quest for a legal right on which to ground standing
is a tautology, since the grant of standing itself manifests a legal
right ... the grant of the procedural right of standing confers ipso
facto substantive rights so that in all cases where there is standing .
there is also a legal right +.”

“Where the legislature has recognized a certain ‘interest’ as one
which must be heeded, it is such a ‘legally protected interest’ as
warrants standing to complain of its disregard 2.”

In the case of the mandates, the Peace Conference of 1919-1920
played the role of the “legislature”—using this analogy in a restricted
and qualified sense. If “the plaintiff has standing his interest is a legally
protected interest, and that is what is meant by a legal right *’’.

I must repeat, as indicated above, that the municipal law analogy
which I have been discussing is far from perfect and the differences in
the international law situation must be clearly noted *. I agree that there
is no generally established actio popularis in international law. But

1 See Jaffe, op. cit., p. 256, but his approach is different.

2 Ibid., p. 264.

3 Davis, Administrative Law Treaties, 1958, sec. 22.04 at p. 217.

+ I have not dealt with the American constitutional requirement concerning the
existence of a “case” or “controversy”’.

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international law has accepted and established situations in which States
are given a right of action without any showing of individual prejudice
or individual substantive interest as distinguished from the general
interest.

SECTION VI. THE CHARACTER AND STRUCTURE OF THE LEAGUE OF
NATIONS AND ITs ROLE IN THE MANDATES SYSTEM

In its Advisory Opinion of 1950 on the Status of South West Africa,
this Court reached the conclusion that the supervisory functions of the
League of Nations had not faded away with the dissolution of the
League but rather that the General Assembly of the United Nations
could now exercise those supervisory functions and that the Union of
South Africa “is under an obligation to submit to supervision and
control of the General Assembly and to render annual reports to it”.
(P. 137 of the Opinion.) In dealing with related issues in 1955 and 1956,
the Court did not modify this view. The Judgment of the Court in 1962
reveals continued agreement with the same conclusion. The Court’s
Judgment today does not pass upon the question of the survival of the
Mandate or its Article 6 which contains the provision requiring annual
reports to the League Council. The authority of the earlier pronounce-
ments therefore rests—as already stated in another connection—un-
impaired. Accordingly I do not find it necessary to deal with the extensive
argumentation of Respondent about the lapse of the League’s supervisory
powers. Similarly, I find it unnecessary to deal further in this opinion
with Applicants’ Submissions 2, 7 and 8.

It is equally clear that the Court’s earlier conclusion that nothing
has sapped the vitality of Article 7 (1) of the Mandate, stands on the
same footing. In other words, the Mandatory could not modify the
Mandate without consent. The consent originally was to be given by
the Council of the League and now by the General Assembly of the
United Nations. “Modification” of course includes ‘“termination”.
Respondent admitted that some consent would be, or at least might be,
required in order to make changes. Inter alia, counsel for Respondent
on 7 April 1965 (C.R. 65/13, p. 6) explained that the South African
Legislative Assembly had “‘contemplated” the competence of the General
Assembly to grant a South African “‘request’’ for the incorporation of
the Territory. This position would be in line with the British position
which recognized that United Nations consent should be secured for
any change in the Palestine Mandate. But counsel for Respondent
considered that a competency to grant a “request” for the ending of
the Mandate “is totally unrelated to the subject of a supervisory power”.
Per contra, the correct conclusion is that such a “competency” is one
of the highest manifestations of supervisory power. On another occasion,
the argument of Respondent seemed to be that an agreement to change
or terminate the Mandate did not need to be reached with an organ of
the United Nations but an agreement expressed through a resolution

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of the General Assembly would be a convenient “short-cut”, so to speak,
to securing the agreement of various States. But Article 7 (1) does not
contemplate the need for consent of various States as such; it contem-
plates the need for the consent of the supervisory organ which originally
was the Council of the League and now is the General Assembly of the
United Nations. .

The Court’s Judgment today lays considerable stress on the nature
of the supervision of the mandates. It points to the Council as the
principal supervisory body. It recognizes that the Assembly of the
League could interest itself in the mandates but concludes that individual
members of the League played no part except as members of the Council
or Assembly. The Judgment seems to emphasize the persona, the separate
personality, not only of the League of Nations itself, but also of the
Council. It emphasizes also the provision of paragraph 1 of Article 22
of the Covenant which says that to the areas which are under man-
date,

“there should be applied the principle that the well-being and
development of such peoples form a sacred trust of civilization
and that securities for the performance of this trust should be embodied
in this Covenant’.

T shall return later to the significance of the words which I have empha-
sized. The Court’s Judgment today of course also recognizes the role of
the Permanent Mandates Commission which screened the annual reports
of the Mandatories and advised the Council. It minimizes the role of
the Permanent Court of International Justice. By this progression it
reaches the interpretation of paragraph 2 of Article 7 of the Mandate,
from which I have to dissent.

The argument of Respondent also stressed the role of the Council
and of the Permanent Mandates Commission as exclusive instrumentali-
ties, of supervision. These instrumentalities, so the argument ran, were
ones known in advance to the Mandatory and accepted by the Manda-
tory, not in terms of a general submission to any type of interna-
tional supervision, but solely in terms of that Council and that Com-
mission.

These inter-related positions and contentions are based upon an
interpretation of historical events and of international instruments
different from my own and I shall therefore state the understanding
which I have derived from a study of the relevant data. I shall seek to
follow the course to which the Judgment itself points, by examining
the scene contemporary to the drafting of the Covenant, to the in-
auguration of the League, and to the ensuing operation of the mandates
system.

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It is not always easy to distinguish between actions of the League
or its organs as corporate bodies and actions of the States which com-
posed the League. I am not concerned here to reach a conclusion whether
the League of Nations had separate international juridical personality
but I am concerned with a realistic appraisal of its activities as an organi-
zation. In connection with the problems here under discussion, impor-
tance must be attached to the views and attitudes of Governments and
their spokesmen in the nineteen-twenties. One may take as a back-drop
certain statements in 1923 and 1924 by one of the great proponents of
the League, Lord Robert Cecil:

“From a constitutional point of view, the League of Nations
was nothing but the Governments which composed it.” (League of
Nations, Official Journal, 1923, p. 938.)

“The League was not a super-national organization; it was
nothing more than the Governments represented in its Council and
at its Assembly ... Influence could therefore never be usefully
exerted on the League as a corporate body, but only on the indi-
vidual Governments which composed it.” (bid., 1924, pp. 329-330.)
‘“,.. he was a little afraid of any proposals which might have the
effect of transforming the Council into a body seeking to achieve
the suppression of slavery by its own initiative. The Council had
been created solely for the purpose of enabling Governments to
co-operate and to assist them whenever necessary.” (Ibid., p. 331.)

This realistic appreciation of the fact that, at least in the years when
the League began to function, the Governments of the member States
were the real actors, is underscored by the history of the action
taken under paragraph 8 of Article 22 of the Covenant which reads as
follows:

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

Section IV of this opinion traced the history of the drafting of the
mandates in the Milner Commission up to their transmission to the
Peace Conference in August 1919. As already noted, they were not finally
confirmed by the Council of the League until 17 December 1920. In the
interval, there were negotiations with the United States, discussions of
the Japanese insistence on “‘open-door” clauses in the “C’ mandates,
and the preparation of the ‘A’ mandates and the mandates for the Togos
and Cameroons which had not been drafted by the Milner Commission.
The League Assembly became impatient at the delay-and there was public
demand for the publication of the text of the mandates +.

1 At this point, it is convenient to repeat, with some modifications and additions,
a portion of my separate opinion of 1962—at pp. 390 ff.

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SOUTH WEST AFRICA (DISS. OP. JESSUP)

“The Council of the League of Nations on 5 August 1920 adopted
the report prepared by M. Hymans of Belgium on ‘The Obligations
of the League of Nations under Article 22 of the Covenant (Man-
dates)’. This report was designed in part to clarify the respective
roles of the Council and the Assembly of the League in regard to
Mandates, but it constitutes the basic document concerning the
respective roles of the Council of the League on the one hand and
the Principal Allied Powers on the other. It will be recalled that
France, Great Britain, Japan and Belgium, namely the four States
which accepted Mandates—Great Britain acting in several capaci-
ties—were at this time Members of the Council of the League. In
adopting the Hymans Report, the Council of the League approved,
inter alia, the following conclusions:

3. On the question ‘By whom shall the terms of the Mandates
be determined?’ the report said :

‘It has not been sufficiently noted that the question is only
partially solved by paragraph 8 of Article 22, according to which
the degree of authority, control or administration to be exercised
by the Mandatory, if not defined by a previous convention, shall
be explicitly defined by the Council.’

The report continued that most Mandates would contain many
provisions other than those relating to the degree of authority.
It said that the B and C Mandates must be submitted ‘for the
approval of the Council’. In the light of paragraph 6 of Article 22
of the Covenant, it concluded that ‘it is not indispensable that
C Mandates should contain any stipulation whatever regarding
the degree of authority or administration’.

4. The report discussed the meaning of ‘Members of the League’
as used in paragraph 8 of Article 22. It concluded that this term
could not be taken literally because if it were it would mean that
the Assembly of the League would have to determine the terms of
the Mandates since only the Assembly brought all the Members
together; if the drafters had meant to refer to the Assembly, they
‘would have mentioned it by name, rather than used an obscure
periphrasis’. The report concluded that when the Article was
drafted it was supposed that conventions dealing with Mandates
would be included in the Peace Treaty and that only the Allied and
Associated Powers would be original Members of the League.
The term ‘Members of the League’ in paragraph 8 of Article 22 was
thus intended to refer to all the signatories, except Germany, of the
Treaty of Versailles. Practically, the report recommended that
the Council ask the Powers to inform the Council of the terms
they proposed for the Mandates.

On 26 October the Council adopted a second report by M.
Hymans on the question of Mandates.
392 SOUTH WEST AFRICA (DISS. OP. JESSUP)

This Report stated:

‘With regard to Mandates B and C, it appears that the Prin-
cipal Powers are in agreement on many points, but that there
are differences of opinion as to the interpretation of certain of
the provisions of Article 22, and that the negotiations have not
yet been concluded.

Beyond doubt, it is in every way desirable that the Principal
Powers should be able to arrive at a complete understanding and
to submit agreements to the League. Failing this very desirable
agreement however, the Covenant provides for the intervention
of the Council with a view to determining the degree of authority,
of control or of administration to be exercised by the Mandatories.’
... ‘We sincerely hope therefore that before the end of the
Assembly the Principal Powers will have succeeded in settling
by common agreement the terms of the Mandates which they
wish to submit to the Council.’ (Italics added.)

The difference of opinion to which the Report referred, in the
case of the C Mandates, was the Japanese reservation on the Open
Door.”

The Principal Powers did reach agreement.

There is further evidence of the contemporary understanding of the
respective roles of the member powers and of the League Council in
establishing the Mandates.

The Prime Minister of Great Britain said in the House of Commons
on 26 July 1920 (when asked “Do the Great Powers submit Mandates
to the League of Nations? Is submission the real attitude?’’): “The Great
Powers are on the League of Nations, and they are only submitting to
themselves.”” Again on 8 November 1920, when asked whether dele-
gates at the League can “alter, amend and reject a mandate?’’, the
Prime Minister replied:

“The great Powers are represented, of course, on the Council
of the League, and these Mandates have to be submitted to the
Council of the League. It will require the unanimous consent of
the Council of the League to reject them ... Nothing can be done
except by a unanimous decision of the Council. That means that
nothing can be done without the consent of the Powers concerned.”

Further, on 14 December 1920, a question was put asking whether any
draft mandates had been submitted to the Assembly of the League
“and, if not, why not, seeing the duty of defining the degree of authority,
control, or administration to be exercised by the mandatory falls in
the first place on the Members of the League?” The Under-Secretary
of State for Foreign Affairs made a printed reply in which he said:

“,.. the Council of the League of Nations decided on 5 August
1920, that the duty of defining the degree of authority, control, or

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administration to be exercised by the mandatory does not under
the Covenant in the first place fall upon the Assembly of the League
of Nations. According to clause 8 of Article 22 of the Covenant,
the degree of authority, control, or administration is to be explicitly
defined in each case by the Council ‘if not previously agreed upon
by the Members of the League’. The Council considered that the
words ‘Members of the League’ in this context were intended
by the framers of the Covenant to designate the Members of the
League concerned, i.e., the great Powers assembled at the Peace
Conference among whom the mandates were to be distributed. The
text of the Covenant is thus held to provide for the intervention
of the. League of Nations as regards the settling of the terms of
the mandates, only through the organ of the Council of the League,
and that only in case of disagreement among the Powers concerned.
The Powers have, however, decided to give to the words of the
Covenant a wider interpretation and to take them as implying
that the Council shall act not merely in case of disagreement, but
in all cases as a confirming authority. Negotiations for overcoming
certain outstanding difficulties are in progress and if agreement
can be reached it is hoped that the approval of the League will be
given to the draft mandates before the close of the present session
at Geneva.”

This was also the point of view set forth in the Ishii Report to the
Council of 20 February 1921 where the Rapporteur said that: “In
general ... the role of the Council may be limited merely to ratification
of the proposais made by the mandatory powers.”

Six years later the British Government’s analysis of the situation
had not been changed. On 21 February 1927, in response to the question:
“Who conferred the Mandate for Tanganyika territory on His Britannic
Majesty?”, the Secretary of State for the Colonies replied:

“Under Article 119 of the Treaty of Versailles the former German
territories in Africa were surrendered to the Principal Allied and
Associated Powers who, in accordance with Article 22 of the
Treaty [scilicit the Covenant], agreed that the mandates to ad-
minister these territories should be conferred upon the Govern-
ments concerned; and proposed the terms in which the mandates
should be formulated. Having arranged the allocation and delimi-
tation of these territories as between themselves, the Governments
concerned agreed to accept their respective Mandates and to exer-
cise this on behalf of the League of Nations on the proposed terms,
and the Mandates were then confirmed by the Council of the
League.” |

In addition to this clear evidence of the British interpretation of the
actual application of paragraph 8 of Article 22 of the Covenant, one may
note that at the private session of the Council on 4 August 1920,
M. Bourgeois (France) pointed out that: “the Principal Allied and Asso-

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ciated Powers, at the moment when the Covenant was drafted, had,
in using the phrase ‘Members of the League’, in effect intended to refer
to themselves.” In a discussion on the mandate drafts in the Council
of the League on 10 December 1920, the Representative of Italy said
that, strictly speaking, by the terms of Article 22 (8) of the Covenant,
no drafts of ‘A’ mandates had been brought to the notice of the Council
since they had not yet been communicated to Italy “and, consequently,
there was, as yet, no agreement in regard to the matter between the
Principal Allied Powers”. He referred to the “necessity of an agreement
between the Principal Allied Powers, as provided for by Article 22”. (Italics
added.)

In the light of this record there is no escape from a further point
noted in my separate opinion of 1962 which apparently is not fully
accepted in the Court’s Judgment. The point is whether the fourth
paragraph of the preamble of the Mandate for South West Africa is
evidence contradicting the conclusion just set forth above and proves
that the Powers had not agreed upon the terms of the Mandate and that
they were actually ‘‘defined”” by the Council.

When on 14 December 1920, Mr. Balfour handed in to the Council
drafts of the ‘C’ mandates, the Council immediately referred these
drafts to the Secretariat to be studied by the experts. As appears from
subsequent reports by Viscount Ishii, the Secretariat was concerned
to make sure that the proposed terms conformed to Article 22 of the
Covenant and that the role of the Council of the League should be
appropriately recognized. As stated by Viscount Ishii, what is now the
fourth paragraph of the preamble was inserted—

“to define clearly the relations which, under the terms of the
Covenant, should exist between the League of Nations and the
Council on the one hand, and the Mandatory Power on the other”.

Along the same lines, the words following the preamble in the Balfour
draft (the Council “approves the terms of the Mandate as follows”),
were replaced by the phrase which appears in the final text, namely:
“Confirming the said Mandate, defines its terms as follows:”

The fourth paragraph of the preamble, as inserted by the League
Secretariat, is capable of misconstruction. The English text, as it appears
in the final version of the Mandate, reads as follows:

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

It will be seen that this text slightly paraphrases the text of paragraph 8
of Article 22 of the Covenant. On the other hand, the French text
follows the text of paragraph 8 of Article 22 more closely and, in doing

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so, brings out more clearly the condition subject to which the Council
was authorized to act. The French text reads as follows:

“Considérant que, aux termes de l’Article 22 ci-dessus mentionné,
paragraphe 8, il est prévu que si le degré d’autorité, de contrôle
ou d'administration à exercer par le Mandataire n’a pas fait l’objet
d’une Convention antérieure entre les Membres. de la Société, il
sera expressément statué sur ces points par le Conseil:” (Italics
added.)

Moreover, in the English text of the Ishii report, the phrase “not having
been previously agreed upon by Members of the League” is set off by
commas, thus affording a construction which, in English, may also
be conditional. The use of the comma after the word “Mandatory”
is to be found in the Mandates for Syria, Lebanon, Palestine, Belgian
East Africa, British East Africa, and the Pacific Islands north of the
Equator, but it has dropped out in the texts of the Mandates for the
Pacific Islands south of the Equator, for Samoa and for Nauru and for
South West Africa.

If the fourth paragraph of the Preamble is read as an assertion that
the Members of the League had not previously agreed upon the terms
of the Mandate, given the interpretation which the Council and its
Members were currently giving to the expression “Members of the
League”, the assertion would be not only contrary to the historical
facts but to the recital of those facts in paragraphs two and three of
the Preamble. Moreover, it is perfectly clear from the record that it
was the Principal Powers and not the Council which “explicitly defined”
the terms of the Mandate, including those terms which alone the Council,
under stated conditions, was authorized by paragraph 8 of Article 22
to define.

This whole fourth paragraph of the Preamble is omitted entirely from
the four Mandates for Togo and the Cameroons which as already noted
had a different development. At the meeting of the Council of Four
on 7 May 1919, when the decision was taken to allocate the Mandates,
it was agreed that the British and French Governments would make a
joint recommendation to the League as to the future of the former
colonies of Togo and the Cameroons; at this point there was no decision
to place these territories under mandate. But the Joint Recommendation
of the two Governments to the League on 17 December 1920 proposed
a division of the two colonies between France and Great Britain and, in
accordance with the spirit of Article 22, that they be placed under
mandates. The two Governments accordingly sent to the Council four
draft mandates which are similar to the other ‘B’ mandates. The Joint
Recommendation says that the two Governments “venture to hope that
when the Council has taken note of them it will consider that the drafts
have been prepared in conformity with the principles laid down in the
said Article 22, and will approve them accordingly”.

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When the Council of the League approved these four drafts on
1 August 1922, it did not insert the new fourth paragraph of the Preamble
although it did insert the final one-line phrase. If it had been the
understanding that under Article 22 of the Covenant the Council
actually had to define al the terms of the Mandates in the absence of
prior agreement by all the Members of the League, and if the fourth
paragraph of the Preamble as it appears, inter alia, in the Mandate for
South West Africa, is to be so understood, it would be impossible to
explain why these four Mandates were subject to a different rule. The
second paragraph of the Preamble of these four Mandates recites that
the Principal Allied and Associated Powers had “agreed” that France
and Great Britain should make a joint recommendation concerning
these former colonies and this was evidently treated as an agreement of
the Powers in advance to accept whatever recommendation the two
governments might make. This conclusion is borne out by the treaties
of 13 February 1923 between the United States and France concerning
the rights of the former in French Cameroons and Togo; they refer
to the agreement of the four Powers upon these Mandates, just as the
treaty of 11 February 1922 between the United States and Japan con-
cerning rights in the islands under Japanese mandate recites the prior
agreement of the same four Powers on the allocation of the Mandate
and on its terms.

So in dealing with ‘A’ mandates, the Council, at its Thirteenth Meeting
on 24 July 1922 approved a frank declaration which says:

“In view of the declarations which have just been made, and of
the agreement reached by all the Members of the Council, the articles
of the Mandates for Palestine and Syria are approved.”

It is necessary at this point to deal briefly with another detail of the
interpretation of Article 22 of the Covenant. Paragraph 1 of Article 22
has been quoted above with particular emphasis upon the words “and
that securities for the performance of this trust should be embodied in
this Covenant’. Since there is reference in the further paragraphs of
Article 22 to the Council of the League and also to “a permanent com-
mission” but no mention whatever of the Permanent Court of Inter-
national Justice, it has been argued that resort to the Court as ultimately
provided for in paragraph 2 of Article 7 of the Mandate is not one of
the “securities for the performance of this trust’? and therefore must
have some lesser or different role. In rejecting this point of view, it
must be noted that the quoted text of paragraph 1 of Article 22 does
not say “all the securities” or even “the securities”, which would have
the same meaning. This is made the more clear by the French text which
says “... il convient d’incorperer dans le présent Pacte des garanties
pour l’accomplissement de cette mission”. It surely was not ultra vires
the Council to confirm the inclusion in the Mandate of Article 7 with its
two safeguards—one requiring the Council’s consent to any modification

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and the other providing for recourse to the Permanent Court of Inter-
national Justice.

It is now necessary to turn to the argument of Respondent noted above
to the effect that Respondent as Mandatory had agreed to accept only
a certain very specific kind of supervision namely that specified in Article 22
of the Covenant when it referred to the Council of the League and to
the commission which actually became the Permanent Mandates Com-
mission. These bodies, so the argument runs, were known in advance
to the Respondent which accordingly knew precisely what kind of
supervision it was agreeing to accept.

Counsel for Respondent relied heavily on the proposition that the
whole mandates system was adopted as a compromise and that, ac-
cordingly, one must bear in mind in interpreting the mandates the point
of view of the Mandatory Powers which, at times, was strongly opposed
to the ideas advanced largely by President Wilson. It is of course true,
that two points of view were aired at the Paris Peace Conference. On
the one hand there were those who advocated the annexation of the
colonial possessions of the enemy powers. The interests of some of the
victorious Powers which advocated this point of view attached differing
importance to the Middle Eastern area and to the African area. President
Wilson was vigorously opposed to the idea of annexation, but it was
the famous project of General Smuts of South Africa which he accepted
and upon which the ultimate mandates system was based 1.

With particular reference to the British Dominions and especially to
the Union of South Africa, certain particular factors must be borne in
mind if the circumstances attending the “negotiations” of the Mandate
for South West Africa are to be properly understood. There is no need
here to dwell upon the familiar incidents at the Paris Peace Conference
in the last few days of January 1919, but it may be recalled that at this
stage President Wilson had succeeded in gaining the support of Mr.
Lloyd George for the principle of non-annexation and the establishment
of the mandates system. The other members of the “Big Five” were no
longer in opposition. The final “compromise” based on the memorandum
presented to the Council of Ten by Lloyd George on 30 January (the
text of which with only some modifications became Article 22 of the
Covenant) was a domestic matter concerning the internal arrangements
of the British Empire. From the international point of view Great
Britain had not conditioned her acceptance of the mandates system or
the role of mandatory, on the adoption of the draft of what became
Article 22 of the Covenant including the plan for the ‘C’ mandates
which entrusted wide powers to South Africa and to Australia in their
mandates respectively in South West Africa and in New Guinea and
_ the Pacific Ocean south of the Equator. In effect, Lloyd George appealed

to the other members of the Council of Ten to help him meet the internal

1 The Smuts plan, however, had not included the German colonies in Africa
in his mandate scheme.

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problem of the British Empire. (See Lloyd George, The Truth About the
Peace Treaties, 1938, Vol. I, p. 541.) According to Hunter Miller (“The
Origin of the Mandates System’’, Foreign Affairs, Vol. 6, 1927, pp. 277-
280):

“Of course London wanted to keep peace in what I may cail
the Commonwealth family. Aside from that desire it cared very
little about annexation as distinguished from mandates either in
Africa or in the Pacific; indeed, while committed to the Japanese
claim for islands north of the Equator, the British probably preferred
the mandate system to annexation in either locality.”

According to a learned South African judge:

“A certain amount of confusion was no doubt occasioned by
the fissiparturience of the Empire. . . The signatories of the Covenant
were as little concerned about the purely domestic question as to
the relationship of His Majesty’s various capacities to each other
as they were with the purely domestic question as to which organs
within the Union would exercise the executive and which the
legislative function over the mandated Territory.” (van der Heever,
J., in Rex v. Offen, op. cit., at pp. 84 and 85.)

“If the mandate system did not serve as an inter-imperialist
compromise, it functioned as a most useful principle for reconciling
the clashing aspirations of various units of the British Empire.
British statesmen sorely needed a formula which would meet the
demands for outright annexation put forward by Australia, New
Zealand and South Africa and the opposing demand that the
Empire refrain from further expansion. The answer, of course, was
found in that ingenious device called the ‘C’ mandate.’ (Haas,
Ernest B., “The Reconciliation of Conflicting Colonial Policy Aims:
Acceptance of the League of Nations Mandate System”, VI Jnter-
national Organization, 1952, p. 521, at p. 532.)

It must be remembered that prior to World War I, the British Do-
minions and India had no recognized separate international personality;
they were merely parts of the British Empire. Due to their magnificent
military contributions during the war, the leaders of the Principal
Allied and Associated Powers were prepared to give the Dominions
and India a special status at the Peace Conference and, ultimately, to
admit them as original members of the League of Nations (see generally
H. Duncan Hall, The British Commonwealth of Nations, 1920, pp. 180 ff).

There were long arguments before agreement was reached about
separate representation of the Dominions. Various compromise formule
were adopted. In the Council of Twenty-five, the Dominions were
entitled, as members of the British Empire Delegation, to places amongst

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the five members allotted to the Empire. The Rules of the Conference,
as issued to the Press on 15 January 1919, included in the first group
the Big Five and any “belligerent Powers with special interests’”—
these Powers included Belgium, Brazil, the British Dominions, India and
some others. When the future of the German colonies was discussed
in the Council of Ten (consisting of the heads of governments and foreign
ministers of the Big Five) “representatives of Australia, New Zealand
and South Africa were allowed to be present and to express their
views . . ”” (Counter-Memorial, Book II, p. 11).

From the point of view of the argument that the Union of South
Africa knew in detail what kind of supervisory system was being pro-
vided for the Mandate over South West Africa which it was accepting, |
it is important to note that the British draft project submitted by Lloyd
George on 30 January 1919 did not include any provision for the
Permanent Mandates Commission which was inserted later and exists
as paragraph 9 of Article 22 of the Covenant. The record shows that the
Union of South Africa was intent upon controlling the territory of
South West Africa which was adjacent to its borders and that when it
became apparent that outright annexation was not politically possible,
the Government of South Africa was ready to accept the ‘C’ Mandate
for South West Africa with that measure of control which paragraph 6
of Article 22 of the Covenant envisaged. Lloyd George could not have
presented his project on 30 January had it not already been clear that
if President Wilson agreed to the draft this would be the basis on which
South Africa’s ambitions in regard to South West Africa would be
realized.

According to Hunter Miller (The Drafting of the Covenant, Vol. I,
p. 114) there was already “tacit consent” as to the distribution of the
mandates as of 30 January 1919. Certainly South Africa had agreed to
the Mandate by the time the formal allocation was made by the Council
of Four on 7 May 1919.

Certain other data indicative of South African acceptance of the
Mandate before all of the details were agreed upon should be noted
at this point. In September 1919 the South African Parliament passed
the South West Africa Mandate Act, Act No. 49, 1919 (Official Yearbook
of the Union of South Africa 1910-1920, pp. 113 and 905-906). The Act,
which was to be in effect for one year but subject to be extended by
resolution by both Houses of Parliament, contained, inter alia, the
following paragraphs:

“Whereas at Versailles on the 28th of June, 1919, a Treaty of
Peace, a copy of which has been laid before Parliament, was signed
on behalf of His Majesty and it is expedient that the Governor-
General should have power to do all such things as may be proper
and expedient for giving effect insofar as concerns the Union to the
Treaty, or to any Mandate issued in pursuance of the Treaty with
reference to the territory of South-West Africa:

Be it enacted...
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1. The Governor-General may make such appointments, establish
such offices, issue such proclamations and regulations and do such
things as appear to him to be necessary for giving effect, so far as
concerns the Union, to any of the provisions of the said Treaty
or to any Mandate issued in pursuance of the Treaty to the Union
with reference to the territory of South-West Africa ...” (Italics
added.)

General Smuts as Prime Minister urged the passage of the Act in-
dicating that the proposed Mandate for South West Africa might take
its final form at the Peace Conference while Parliament was not in
session and that accordingly interim powers should be provided to enable
the Government generally to take such actions as might be necessary
in the circumstances. Prime Minister Smuts informed the Parliament
about the elaboration of the proposed mandates system with particular
explanations about the ‘C’ mandates which would include South West
Africa. He said that the members of Parliament would find the report
of the Commission which had drafted the mandates in a blue book
which had been issued and they would find that the Mandate for South
West Africa was in terms almost identical with Article 22 of the Covenant.

It appears that this South West Africa Mandate Act was renewed in
July 1920 and subsequently. (Official Yearbook of the Union of South
Africa 1924, p. 111.)

Having in mind these dates indicating the acceptance of the Mandate
for South West Africa by the Government of the Union of South Africa,
at Paris probably by 30 January and at least by May 1919, and in the
South African Parliament in September 1919, one may return to the
relevant dates involved in the further drafting of the Covenant and of
the mandates at the Peace Conference. Of course the Union of South
Africa was not legally bound until the Covenant entered into force as
part of the Peace Treaties on 10 January 1920, and the subsequent formal
approval of the Mandate for South West Africa by the Council of the
League on 17 December 1920. The significant fact is that there was
acceptance in principle. “Respondent was at all material times willing
to accept such Mandate ...” (Dissenting opinion of Judge van Wyk,
1962, p. 594.) This acceptance in principle was not qualified by reserva-
tions concerning this or that detail but evidenced the conclusion by South
Africa that the acceptance of the ‘C’ mandate, as it might be worked
out, was the only way in which the desired control of South West Africa
could be obtained.

When the general outline of Article 22 of the Covenant was provision-
ally accepted in the Council of Ten on 30 January 1919 there was a bare
reference to the rendering of an annual report; nothing was said about
the nature of the report. The last two paragraphs of Article 22 were
added at the Sixth Meeting of the Commission of the League of Nations
on 8 February 1919 (Miller, op. cit., pp. 110-111). These two paragraphs
read as follows:

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

(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.”

The text of Article 22 including these two paragraphs was adopted on
13 February 1919 (ibid., Vol. II, pp. 438, 441, 484-486).

At this stage the nature of the Permanent Mandates Commission
was still unknown; its constitution was not actually agreed upon until
29 November 1920.

The composition of the Permanent Mandates Commission was actually
discussed in the Council of the League of Nations between 4 August
and 29 November 1920. At first there was no agreement as to whether
the Mandatory Powers were to be represented on the Mandates Com-
mission at all, or in any event, whether the majority of the Commission
should be composed of representatives of non-Mandatory Powers. While
this whole question was still under debate, at the Fourth Meeting of
the Tenth Session of the Council on 23 October 1920, Mr. Balfour
(Great Britain) stated that he would like to consult the representatives
of the Dominions who were about to arrive in England. At the First
Meeting of the Eleventh Session of the Council on 14 November 1920,
Mr. Fisher (Great Britain) reported that the representatives of the
British Dominions were inclined to the view that the number of members
of the Commission should not exceed five. Mr. Fisher continued:

“In view of the fact that the Commission on Mandates might be
called upon to revise the conditions of administration of the man-
dates by the Mandatory Powers, it would perhaps be better if these
Powers were not represented on the reduced Commission.”

These are the only two indications in the record of an expression of
British Dominions’ interest in the composition of the Permanent Man-
dates Commission. The debates in the Council continued and at the
meeting of 26 November it was agreed there should be nine members
with a majority from non-Mandatory States. It was also agreed that the
International Labour Organisation could select an expert who would be
attached to the Commission.

The actual procedures later to be followed by the Permanent Mandates
Commission were certainly not known when South Africa accepted the
Mandates. The questionnaire which was regularly sent to each Mandatory
was not elaborated until 1922. The Council of the League did not approve
the procedures for examining petitions until 31 January 1923. Moreover,
the composition of the Commission changed. In 1925 M. Rappard, who
had been chief of the Mandates Section of the League Secretariat, was

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made extraordinary member of the Commission raising the number to:
ten. In 1927 the number was increased to 1] by adding a German member.
The majority remained nationals of non-Mandatory Powers.

Paragraph 9 of Article 22 of the Covenant hardly gave any indication
of the way in which the Permanent Mandates Commission would
function; it merely said that it would “receive and examine the annual
reports of the Mandatories” and would “advise the Council”. There was
no hint here of the practice established under which representatives of the
Mandatories appeared regularly before the Commission at Geneva and
were often subjected to severe cross-examination although in general
during the days of the League of Nations the amenities of diplomatic
interchange were much more rigorously observed than they have come
to be in the United Nations. Harsh and violent language was rare at
Geneva, resolutions were couched with extreme diplomatic indirection
and the general tendency was to avoid putting a Member “‘on the spot”.
It is the more striking to note the vigour of certain criticisms in the
Permanent Mandates Commission and in the Assembly, for example in
connection with the Bondelzwarts rebellion which was discussed in 1922,
1923 and 1924. At the Fourteenth Session of the Permanent Mandates
Commission in 1928, South Africa was represented by Mr. Werth. He
spoke of the criticisms of a Rehoboth petition and referred to “the
gravity of the charges laid” by the Commission. He said he “detected... a
note of impatience—I might almost say a note of displeasure and annoy-
ance” (p. 60). Lord Lugard replied to Mr. Werth (p. 98). M. Merlin
said that the “report under review was so fragmentary as to be quite
unreadable” (p. 67). M. Rappard said:

“he did not know of any more depressing reading than pages 29
and following of the annual report for 1927, not only because of
the conditions depicted but because the authors of the report, the
district commissioners and magistrates, seemed to be lacking in
human sympathy for the Natives ... The authors of the report
always seemed to consider the interests of the Whites, even when
dealing with the question of the Natives.” (Pp. 101, 102.)

Such criticisms were not typical of all sessions of the Permanent Mandates
Commission but these are not unique examples.

It was true that the Members of the Permanent Mandates Commission
were selected as individual experts but this did not prevent some of the
members from serving as their countries’ delegates to the Assembly
of the League where as national representatives they took an active
part in political discussions concerning events in the mandated territories.

Aside from the evolution of the character and operation of the Per-
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manent Mandates Commission, South Africa as a Mandatory Power
could not have known how the organs of the League of Nations would
develop. The Council was indeed to be the chief supervisory body,
but it was a body of shifting composition. According to Article 4 of the
Covenant, the Council would have been composed of the five Principal
Allied and Associated Powers and four non-permanent members selected
by the Assembly. Since the United States did not participate in the
League, even at the outset the large Powers did not have a majority.
Two more small Powers were added in 1922 and from then on the small
Powers were always in the majority; after 1926 there were nine non-
permanent members !.

Neither Article 22 of the Covenant nor the text of the Mandate
refers to any role for the Assembly of the League of Nations. The
evolution of Assembly activity under Article 3 (3) of the Covenant was
not them foreseen, but Article 3 of the Covenant is co-equal with
Article 22 in the allocation of functions between organs of the League.
The Assembly became “the central organ of the League’? (Walters, op.
cit., Vol. I, p. 127), and from the First Session insisted annually on
reviewing the operation of the mandate system. .

In its First Session the Assembly decided that mandates, as dealt with
in the annual report from the Council to the Assembly, should be
referred to the Assembly’s Sixth Committee (Burton, The Assembly of
the League of Nations, 1941, pp. 79-80). Lord Robert Cecil vigorously
argued for the right of the Assembly under Article 3 (ibid., pp. 214-220).
The request for consideration of the mandates was brought up at each
Assembly by the Norwegian Delegation and the annual consideration
by the Sixth Committee was by no means always perfunctory. In 1922
members of the Assembly were aroused by the so-called Bondelzwart’s
rebellion in South West Africa. M. Bellegarde of Haiti made a strong
speech and the Assembly unanimously passed a resolution. The Perma-
nent Mandates Commission (Annexes to Minutes of Third Session,
pp. 290 and following) made a report which was in effect a rebuke to
South Africa and severely criticized its failure to carry out its promise
to the Assembly that an official investigation would be made. In the
Fourth Assembly in 1923 the South African Delegate protested and
defended his Government’s action but the Assembly adopted a resolution
expressing regret that the Permanent Mandates Commission had been
unable to report that satisfactory conditions had been established in
South West Africa; the resolution expressed the hope that future reports
from the Mandatory would allay misgivings. The next annual report from
South Africa stated that adjustments had been made (Permanent Man-
dates Commission, Fourth Session, pp. 42, 46, 59, 78, 112 and 119).

1 The unanimity rule was not always controlling.
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404 SOUTH WEST AFRICA (DISS. OP. JESSUP)

A further striking example of the interest which the Assembly took
in the problems of mandate administration is afforded by the records
of the Seventh Ordinary Session of the Assembly (League of Nations,
Official Journal, Special Supplement No. 50, Minutes of the Sixth Com-
mittee, 1926, pp. 16-26). On this occasion there was a vigorous discussion
of two proposals which the Permanent Mandates Commission had made
to the Council and which had aroused some opposition among the
members of the Council. The proposals had to do with a more elaborate
questionnaire and with the question whether the Commission could con-
duct oral hearings for petitioners. M. van Rees, Vice-Chairman of the Per-
manent Mandates Commission, explained the Commission’s actions to the
Assembly and was followed by two members of the Commission who
were present as delegates of their countries to the Assembly—Madame
Bugge-Wicksell (Sweden) and General Freire d’Andrade (Portugal).

Although the representative of South Africa took part in this debate
in the Assembly, there were many occasions when important action
was taken concerning the administration of the mandates system when
South Africa as a Mandatory Power apparently did not feel sufficiently
concerned to send a representative. The situation was described to the
Court in the dossier transmitted by the Secretary-General of the United
Nations in connection with the Court’s Advisory Opinion of 7 June 1955
on Voting Procedure on Questions Relating to Reports and Petitions con-
cerning the Territory of South-West Africa:

“As for the participation in the Council of Mandatories which
were not members of that body, there was a gradual development
of practice. In the early days of the League, all of the Mandatories
were members of the Council except for the three Dominions
Australia, New Zealand and South Africa. A representative of the
‘British Empire’ sat as a permanent member of the Council, but
during the first three years of the League no special representative
of a Dominion ever came to the Council. During those three years
such important decisions were taken as the adoption of a constitution
of the Permanent Mandates Commission, the approval of the terms
of the Mandates under which the Dominions were to administer
the Mandated territories, the invitation to Mandatories to furnish
reports, the adoption of the rules of procedure of the Permanent
Mandates Commission and the consideration of the first two reports
of the Commission. This absence of the Dominions may, however,
not be the result of the practice of the Council, but rather of the
arrangements within the British Commonwealth regarding diplo-
matic representation of its members.

The first occasion on which special representatives of the Do-
minions sat in the Council during its discussion of Mandates
questions was on 20 April 1923, when the national status of in-

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habitants of B and C Mandates was under consideration. On that
occasion the representative of the Union of South Africa was
appointed to a drafting committee to prepare a resolution for
adoption by the Council.

The right of Mandatories to sit in the Council certainly extended
to all times when the reports of the Permanent Mandates Commission
concerning their respective Mandates were under discussion, and
also to the discussions of questions raised by the Mandates Com-
mission or otherwise, which concerned conditions in all Mandates
generally. On the other hand, no Mandatory not a member of the
Council ever was present at the election of members of the Perma-
nent Mandates Commission. As to discussions of the general
organization of the Mandates system, Mandatories not members
of the Council did not participate in the broad initial decisions of
1920 to 1922 concerning that system, perhaps for reasons which
have no relevance here. However, three such Mandatories were
present in the Council in 1927 when it was decided to create another
post on the Permanent Mandates Commission in order to permit
the appointment of a German national.” (C.J. Pleadings, etc.,
1955, pp. 45 ff.) (The footnotes are omitted.)

Nor would it be correct to assume that the Mandate for South West
Africa was not discussed in the Permanent Mandates Commission
except when a representative of the Mandatory was present. Judge
Lauterpacht lists seven occasions when South Africa was not represented
at meetings of the Council when South West African affairs were dis-
cussed (separate opinion 1955, p. 103). Even when representatives of
South Africa attended a session of the Permanent Mandates Commission,
it was the regular practice of the Commission to discuss the problems
‘of the Mandate privately, either before the representative of the Manda-
tory was called in or after he had left or both.

The role of the Secretariat of the League in the administration of the
system for supervising the mandates was also an important one. The
information in the reports from the Mandatories—

“was supplemented not only by the annual hearings of the accredited
representatives, but also by much other available documentary
material—special studies published for and by the Mandatory
Governments, the results of anthropological and other technical
inquiries, clippings from newspapers and other periodicals, accounts
of debates in the local consultative bodies or in the parliaments of
the administering States, petitions from or about the territories,
etc. All of this literature was carefully sifted by the Mandates
Section of the Secretariat of the League, and each of its elements
was thoughtfully considered by at least some of the members of the
Commission. As a consequence, it can be admitted that no event
of any importance taking place in any of the mandated territories

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escaped the attention of the supervisory organ ...” (Japan an
exception.) (Rappard, “The Mandates and the International
Trusteeship Systems”, 61, Political Science Quarterly, 1946, re-
printed in his Varia Politica, 1953, at p. 183.)

The various developments and changes in the operation of the League
system for supervision of the mandates as described above, were accepted
or acquiesced in by the Union of South Africa. The record does not
sustain the contention that South Africa’s acceptance of obligations
under the Mandate was limited to acquiescing in certain precise kinds
of supervision known to it in advance of its acceptance. If South Africa
agreed to submit to the jurisdiction of the Permanent Court of Inter-
national Justice without devoting much thought to the nature of that juris-
diction, that fact would not supply any basis for denying the right or
juridical interest which Applicants properly asserted in this case.

SECTION VII. THE ABSENCE OF JUDICIAL PRECEDENTS FOR
APPLICATIONS LIKE THOSE IN THE PRESENT CASE

The question can be asked why no State during the period of the
League of Nations invoked the jurisdiction of the Court in the general
interest of the good administration of the mandate if it was true that
paragraph 2 of Article 7 gave them that right. Many explanations could
be given. One might first ask in response why, during the whole League
period, were the Greek claims on behalf of Mavrommatis the only
mandate cases brought to the Court in exercise of the conceded right
of States to bring to the Court the claims of their nationals?

In 1929 the Vice-Chairman of the Mandates Commission, M. van
Rees, submitted to the Commission in writing some thoughts which had
been inspired by press reports of complaints about practices in certain
mandates. He said that people overlook that—

**,.. the mandates themselves, without exception, offer the Govern-
ments of the States of which they are nationals a much more effective
means of remedying this state of affairs than any appeal for inter-
vention, whether by the Mandates Commission or public opinion.

This means is furnished by the stipulation, which is included in
all the Mandates, whereby the mandatory Power agrees that any
dispute whatever which may arise between it and another Member
of the League of Nations relating to the interpretation or the appli-
cation of the provisions of the mandate, and which cannot be settled
by negotiation can be submitted to the Permanent Court of Inter-
national Justice.”

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407 SOUTH WEST AFRICA (DISS. OP. JESSUP)

He wanted to bring this situation to public notice by incorporating
it in the Minutes. (P.M.C., Minutes, XVI Session, 1929, p. 152.)

M. Rappard said there was little chance for merchants to get that
help from their governments—

“Very strong arguments would be necessary to induce a Govern-
ment to submit to the Permanent Court of International Justice
a matter which would put it in conflict with a foreign Government.”
(Ubid., p. 153.)

But the Commission agreed to include the statement by M. van Rees
in the Minutes.

In their report to the Council in the same year, in commenting on the
status of non-native inhabitants of South West Africa in the light of
a nationality act, the Commission advised the Council “this question
appeared to be one which might merit reference to the Permanent Court
of International Justice” (ibid., p. 203). No action followed these dé-
marches.

In 1930 in a report by M. Palacios, as Rapporteur, on a petition from
a mining company in South West Africa about the application of a law,
the Rapporteur said:

“,.. the Commission might ... advise the petitioners, if they were
not nationals of the Union, to come to an arrangement with their
Government. Perhaps, in this way, Article 7 of the Mandate might
even be brought into play and, in order to settle the matter, it
might be referred to the Permanent Court of International Justice
at The Hague in order to ascertain whether, in the interpretation
of the mandate, some fundamental right had really been infringed
in the present case.”

This suggestion was not pressed. (P.M.C., Minutes, XVIII Session,
1930, p. 155.) |

In 1934, Lord Lugard, in a discussion on the question of the incor-
poration of South West Africa in the Union as a Fifth Province, said:

“... if the proposal should be thought to be of doubtful legality

under the mandate system, the Council could, if it so desired, refer
the question to the Permanent Court of International Justice,
provided for by Article 14 of the Covenant, and referred to in
Article 7 of the mandate. The article in the mandate only referred
to a dispute between two Members of the League, but Article 14
of the Covenant stipulated that the Council might ask the advisory
opinion of the Court on any question.” (P.M.C., Minutes, XXVI
Session, 1934, pp. 163-164.)

No such action was taken.
M. Rappard’s comment in 1929 is supported by an opinion based on
long experience:

405
408 SOUTH WEST AFRICA (DISS. OP. JESSUP)

“Experience has shown that the disadvantages of the existence
of divergent views regarding the interpretation of a general inter-
national convention of a technical character are rarely regarded
by those responsible for the foreign policy of a State as a sufficient
reason for accepting the political responsibility involved in insti-
tuting contentious proceedings against another State.” (C. Wilfred
Jenks in 45 Annuaire de l’Institut de droit international, 1954, Part 1,
p. 378.)

This attitude of governments may be the explanation of the scarcity
of mandate cases in the Court but that scarcity cannot be prayed in aid
of an interpretation of paragraph 2 of Article 7 of the Mandate for
South West Africa in order to bar such a case when it is submitted to
this Court as has now been done. It is also noteworthy that while the
Council of the League of Nations never asked the Permanent Court of
International Justice for an advisory opinion concerning a mandate—as
it had an unquestioned right to do under Article 14 of the Covenant—the
General Assembly of the United Nations has asked the International
Court of Justice for three advisory opinions on the Mandate for South
West Africa.

SECTION VIII. THE DRAFTING OF THE U.N. TRUSTEESHIPS

The Judgment of the Court supports its interpretation of paragraph 2
of Article 7 of the Mandate for South West Africa by a reference to the
trusteeship agreements concluded under the United Nations. The argu-
ment was elaborated in the separate opinion of Judge Sir Percy Spender in
the Northern Cameroons case. (I.C.J. Reports 1963, pp. 15, 65, 84 ff.)
The fact is that adjudication clauses, closely resembling that in para-
graph 2 of Article 7 of the South West Africa Mandate, were inserted in all
the trusteeship agreements except the strategic trusteeship of the Pacific
Islands under the United States and the two trusteeships in which
Australia assumed responsibility, namely New Guinea and Nauru.

The negotiation of trusteeship agreements was entirely different in
the United Nations in 1946 and subsequently from the negotiation of
the mandate agreements in 1919 and the ensuing years. As has been
seen, in 1919 agreement was first reached on which territories were to
be placed under mandate. Thereafter the terms of the mandates were
drafted in the Milner Commission in 1919 and then approved by the
Council of Heads of Delegations at the Peace Conference. Although
there was a later clamour from the League Assembly to learn the texts of
the drafts, the texts of the mandates were agreed by the Principal Allied
and Associated Powers and then confirmed by the Council of the League;
the Powers did not submit themselves to cross-examination in the
Assembly. But the Union of South Africa had no right to continued
administration of the territory of South West Africa until it accepted a
mandate agreement. (Details of these steps are given in my separate

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409 SOUTH WEST AFRICA (DISS. OP. JESSUP)

opinion of 1962 at pp. 387-401; some parts of them are described in the
present opinion.)

In contrast, as this Court held in its Advisory Opinion of 1950, “the
provisions of Chapter XII of the Charter do not impose on the Union
of South Africa a legal obligation to place the Territory under the
Trusteeship System”. (C.J. Reports 1950, pp. 128, 144.) Since all
States holding mandates were thus free to place their mandated territories
under trusteeship or not to do so, they had the whip hand in deciding
what provisions should be inserted in the trusteeship agreements, even
though it was true that there were extensive discussions of the drafts in
Sub-Committee I of the Fourth Committee of the General Assembly,
which, under Article 85 of the Charter, was to approve the agreements.

Under Articles 82 and 83 of the Charter, the United States submitted
a draft for a strategic trust of the Pacific islands formerly held under
Japanese mandate and this draft was considered in the Security Council,
not in the General Assembly. The United States did not choose to
include an adjudication clause in its strategic trusteeship where rights
of inspection may also be limited. But it sent its draft agreement to the
other members of the Security Council and to New Zealand and the
Philippines some months before the draft was submitted to the Security
Council. (See Armstrong and Cargo, “The Inauguration of the Trustee-
ship System of the United Nations”, XVI Department of State Bulletin,
March 23, 1947, pp. 511, 521.) A similar practice was followed by other
governments regarding other trusteeship agreements and the United
States made numerous comments and suggestions on drafts transmitted .
to it before the formal discussions in the General Assembly. In the later
debates in the Fourth Committee of the General Assembly, Mr. Thomas,
speaking for the United Kingdom, said that the United States was the
only Government to submit amendments to the British drafts. The
United States amendments—

“*_.. had been discussed fully, with the result that some were adopted
as they stood, others adopted in modified form, others were with-
drawn by mutual agreement and one left over to be raised before the
General Assembly”. (G.A., O.R., 2nd Part, Ist Session, Fourth
Committee, p. 160.)

Although it is true that the debates in the committees of the General
Assembly were detailed, in no case could a State be compelled to accept
any provision to which it objected.

. The Australian trusteeship for New Guinea was approved by the
General Assembly on 13 December 1946 along with seven other trustee-
ship agreements. The draft trusteeship for Nauru was submitted jointly

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by Australia, New Zealand and the United Kingdom on 27 Septem-
ber 1947.

The separate opinion of Judge Sir Percy Spender in the Northern
Cameroons case (at p. 85) is correct in noting that the Sub-Committee
of the Fourth Committee of the General Assembly first examined the
draft trusteeship agreement submitted by New Zealand for Western
Samoa, and this draft was taken as the basis for ensuing discussions of
other trusteeships. But other drafts were discussed separately. In regard
to the Australian draft for a trusteeship for New Guinea, the United
States proposed numerous modifications. (They are printed in Annex
5b, p. 242, G.A., O.R., 2nd Part, Ist Session, Fourth Committee, Part IL.)

The separate opinion here under reference suggests that the question
was whether the draft of the New Guinea trusteeship was acceptable to
the Sub-Committee of the Fourth Committee. The fact was that the
issue was whether any suggestions from the Sub-Committee or its
members were acceptable to Australia. The representative of Australia
throughout these discussions was Professor (as he then was) Kenneth
Bailey, who had played a distinguished part in the drafting of the Charter
at the San Francisco Conference. He made very clear the position of
the Australian Government, as appears from the following quotations
of his statements from the Summary Records of the Sub-Committee
already cited:

‘“‘He had been astonished . . . to hear it suggested that the decision
with respect to Western Samoa was an indication of what the
decision should be in the case of the other draft agreements.”
(P. 121.)

“|. the task of the Sub-Committee was really one of negotiation
with the Governments submitting texts” (p. 141).

“Mr. Bailey (Australia) said that the process of examination of
the agreement by the Sub-Committee was not intended to elaborate
a new text. The task of the Sub-Committee was to negotiate, in
the name of the General Assembly, with the administering Powers
and to suggest to them modifications it deemed necessary. It was
for the administering Powers to express their willingness or unwil-
lingness to accept suggested modifications.” (P. 192.)

“Annex 5f. Delegation of Australia: comments on proposals for
modification of the trusteeship agreement submitted for the man-
dated Territory of New Guinea. [Pp. 246-248.]

1. The delegation of Australia has given careful consideration,
in the light of the discussions in the Sub-Committee both on the
Western Samoan Agreement and on the first reading on the New
Guinea draft agreement, to the modification proposed by other
delegations. In indicating its attitude to the proposals, the delegation
of Australia will aim at brevity even at the risk of a certain curtness,
which it hopes will not be misunderstood.

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411 SOUTH WEST AFRICA (DISS. OP. JESSUP)

Preamble ... The additional clauses proposed seem unneces-
sary...

Article 2 ... The delegation of Australia understands that this
proposal has been withdrawn...

Article 3 ... The delegation of Australia understands that these
proposed modifications have been withdrawn .. .

Article 4. Proposed modification 1.

Proposal (a) is unacceptable .. .
Proposal (6) seems unnecessary ...

Proposed modification 2. This proposal does not seem to be
necessary.

Proposed modification 3 ... this proposal does not seem to be
necessary.

Proposed modification 4. This proposal is unacceptable.

Article 5. Proposed modification 1. The proposed omission seems
unnecessary.

Proposed modification 2. The proposal to delete the article is not
acceptable ...

Proposed modification 3 ...is not acceptable ...

Article 7 ... Three modifications are proposed in this article.
They cannot be accepted by the delegation of Australia ...”

In a supplementary report by the Australian Delegation (Annex 5h,
p. 248) there is a summary of certain points on which the Delegation
thought there was a “general consensus of opinion in the Sub-Com-
mittee”, in the light of which the Australian Delegation was submitting
a new draft of Article 8 “for approval of the Sub-Committee, subject
always to final acceptance by the Australian Government’’. (P. 250. Italics
added.)

Professor Bailey’s interventions in the Fourth Committee itself do not
reveal any different posture. See, e.s., General Assembly, Official Records,
2nd Part, Ist Session, Fourth Committee, Part I, Summary Record of
Meetings, 1 November-12 December 1946, pp. 150 and 163.

A draft trusteeship agreement for Nauru was established later by
Australia, New Zealand and the United Kingdom. Its terms closely
parallel those in the agreement for New Guinea. According to the report
of the Sub-Committee which considered and approved the draft agree-
ment, no suggestion was made about adding an adjudication clause.
(U.N. Doc. A/C.4/127, 21 Oct. 1947.) In the Fourth Committee itself,
the representative for Australia, Mr. Forsyth, answered suggestions
made for amendments or additions to the draft. He accepted none of

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412 SOUTH WEST AFRICA (DISS. OP. JESSUP)

them and the draft agreement was approved by the Committee (U.N.
General Assembly, Official Records, Second Session, Fourth Comm.,
Trusteeship, Summary Records of Meetings, 16 September-6 November
1947, pp. 98-104).

It is in this framework that one must read Professor Bailey’s statement
of 29 November 1946 in the Sub-Committee about the non-inclusion
in the New Guinea draft trusteeship agreement of an adjudication clause
comparable to that in Article XVI in the draft for Western Samoa:

“Mr. Bailey (Australia) stated that no article comparable to
article XVI had been included in the draft agreement for New
Guinea, because the obligation to submit a dispute to the Inter-
-national Court of Justice was considered to be covered by Australia’s
undertaking, under Article 36 of the Statute of the International
Court of Justice, to be bound by the compulsory jurisdiction of the
Court. The clause had been included in the mandate, because at
the time of its promulgation the Permanent Court of International
Justice had not been established and the optional clause had not
been accepted.” (Op. cit., p. 86.)

It is futile to try to dismiss this contemporary official Australian
explanation for the omission of an adjudication clause by attempting to
show that since the Australian obligation under Article 36 of the Statute
was limited in content and in time, the Sub-Committee would not have
accepted this reason for not including a special adjudication clause in
the trusteeship agreement. The creation by “hindsight”, and with a view
to supporting a particular thesis unconnected with the New Guinea
Trusteeship, of a theory that the adjudication clause was omitted from
the Australian trusteeship agreements because of the absence of clauses
conferring certain rights for nationals of other States, rests, at most,
on nothing more than a certain coincidental parallelism. The separate
opinion of Judge Sir Percy Spender, in Northern Cameroons, lays em-
phasis also on the fact that the United States delegate—

<... withdrew his proposal to insert certain Articles in the New
Guinea draft, specifically he withdrew the proposal to insert an
Article concerning ‘the procedure to be followed with respect to
disputes over the interpretation and application of the provisions of the
draft agreement’ ” (p. 94 of the separate opinion citing pp. 163-164
of the records of the Sub-Committee).

But the United States just as “specifically” withdrew proposals to insert
“articles concerning regional organizations, the submission of annual
reports and the functions of the Trusteeship Council’’—in other words,
all proposals which it was apparent Australia was not prepared to accept.
J do not find a shred of evidence in the record to support the theory
that the United States withdrew its proposal for an adjudication clause
because it had dawned on that delegation that the New Guinea Trustee-

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ship did not include individual rights for nationals as the Western
Samoa Trusteeship did. Nor do I find the slightest evidence to support
the conclusion in the separate opinion (at p. 95) that the adjudication
clause was left out of the New Guinea Trusteeship because “the General
Assembly did not regard it as serving any purpose”.

SECTION IX. THE INTEREST OF THE GENERAL ASSEMBLY AND THE
ALLEGED CIRCUMVENTION OF ARTICLE 34 OF THE STATUTE

Another challenge to the standing of the Applicants in these cases
was based on the assertion that they were acting as agents of the General
Assembly of the United Nations and not in their own individual inter-
ests. It is true that the Application of Ethiopia—at page 18—(and of
Liberia, mutatis mutandis) stated that the proceedings were instituted
“in order to protect the legal interest of Ethiopia in the proper exercise
of the Mandate, as well as that of other States similarly situated ...”.
The interests of other States and of the General Assembly of the United
Nations were stressed by counsel for Applicants thereafter. It was
argued that this is an abuse of the process of the Court since it constitutes
an attempt to circumvent paragraph 1 of Article 34 of the Statute which,
by its provision that “only States may be parties in cases before the
Court”, prevents the United Nations or one of its organs from instituting
contentious proceedings which can lead to a judgment having binding
effect.

Respondent asserts in the Counter-Memorial, Book IV, p. 448, that
“the Applicants in the present case are in substance only nominal parties
to the proceedings, the real parties being the independent African
States ...”. But the Applicants are themselves two of the independent
African States and the fact that an interest is shared by other States is
no disqualification.

In the matter of Appeals from Certain Judgments of the Hungaro-
Czechoslovak Mixed Arbitral Tribunal, the Czechoslovak Government,
the Applicant, in requesting an extension of the time fixed by the Perma-
nent Court of International Justice for the presentation of its observations,
advanced as one reason for the request its need to consult the Govern-
ments of Romania and Yugoslavia, parties to the treaty involved in the
case (P.C.I.T., Series C, No. 68, p. 266). The Court instructed the Re-
gistrar to inform the Czechoslovak Government “qu’en tout état de
cause, les observations dont il s’agit ne sauraient étre envisagées par la
Cour autrement que comme des observations présentées au nom du seul
Gouvernement tchécoslovaque ...”. If other Governments wished to
present their own views in their own names, the Court said they should
seek to intervene as provided in Article 63 of the Statute (Joc. cit., p. 272).
But the Court did not suggest that Czechoslovakia’s shared interest
disqualified it from filing an application in the Court. Would they have
so held, if Czechoslovakia had wished to consult a larger. number of
States? Two States, Members of the United Nations, filed applications

411
414 SOUTH WEST AFRICA (DISS. OP. JESSUP)

in the instant case; four States, Members of the League of Nations,
instituted the proceedings in the Wimbledon and Memel cases. In the
Oder Commission case, there were six Applicants. (P.C.LJ., Series A,
No. 23 (1929).) When there are several parties in one interest they can
be reckoned as one party only. (Cf. Article 31 (5) of the Statute.) The
two Applications in this case were joined; this could be done if there
were 20 Applicants, or more.

It will be recalled that in the Memel case, the Rapporteur of the
Council of the League, regretting that a unanimous vote could not be
secured for requesting an advisory opinion, urged the four Principal
Powers to bring an action against Lithuania in the Permanent Court on
the basis of Article 17 of the Convention of 8 May 1924. The representative
of Lithuania said the entire Council was a party to the dispute. (League of
Nations, Official Journal, 13 February, 1932, p. 540.) The four Powers did
bring the action and the Permanent Court dealt with the case without
any suggestion that there was any impropriety in the application or that
it circumvented Article 34 of its Statute which is substantially similar
in this respect to Article 34 of the Statute of the International Court of
Justice. The situation could be the same with respect to any of the numer-
ous international organizations which now have the right to request the
Court for an advisory opinion (see the list in the Court’s Yearbook
1964-1965, pp. 34-35), where the constitution of the organization also
permits members to apply to the Court for an interpretation of its
provisions i.

Where members are thus given a right to apply to the Court for an
interpretation of a constitutional or other basic treaty provision, the
clause giving them the right to institute the action is the only title they
need to obtain judgment; they do not need to point to some other legal
provision specifically giving them a “legal interest”.

Respondent also asserted that the present proceedings against Respon-
dent are to be seen as part of a political campaign (Counter-Memorial,
Book IV, p. 446 and elsewhere). That there has been and continues to be
vigorous opposition to the practice of the policy of apartheid in the
mandated territory of South West Africa, is clearly true. The opposition
extends to the practice of apartheid in the Republic of South Africa

1 See F.A.O. constitution of 1945, as amended 1957, Art. 17; Peaslee, International
Governmental Organizations, Constitutional Documents, Vol. I, pp. 664, 672; Statute
of the International Atomic Energy Agency of 1956, Art. 17, ibid., Vol. II, pp. 926,
938; U.N.E.S.C.O. constitution of 1945, Art. 14 (providing also an alternate form
for judicial settlement if the General Conference so determines), ibid., pp. 1802,
1809; W.H.O. constitution of 1948, as amended 1959, Art. 75, ibid., pp. 1881, 1891.

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415 SOUTH WEST AFRICA (DISS. OP. JESSUP)

itself but the Court is not concerned with matters outside of the mandated
territory. The task before the Court—as I see it—is to decide a dispute
about the interpretation or application of provisions of the Mandate,
namely whether the policy and practice of apartheid in South West
Africa violates the duty imposed on the Mandatory by Article 2 to
“promote to the utmost the material and moral well-being and the social
progress of the inhabitants of the territory”. The Court has no jurisdiction
to consider the legality under international law of practices of the Re-
public of South Africa in its own territory.

However, since Respondent has sought to eliminate the legitimate
legal interest of Applicants in the present proceedings, on the ground
that the proceedings are part of a campaign by African States against the
Respondent (cf. argument of Counsel, 26 October 1965, C.R. 65/87,
pp. 45 ff.), a word must be said on this subject. At times counsel for
Respondent seemed to suggest that the “campaign” was one waged just
by other African States but he admitted that criticism began much
earlier and that non-African States also had supported resolutions
condemning the practice of apartheid. (C.R. 65/87, p. 47. Examples of
statements by non-African governments are in the Reply, pp. 76-83.)
To put the matter in proper perspective, it is necessary to recall that the
question of South African racial discrimination was first brought before
the General Assembly in 1946 by India. The Indian representative
referred to the efforts of Ghandi in South Africa in 1907 and 1913. He
submitted a resolution by which the General Assembly would have
resolved that “the Union Government’s discriminatory treatment of
Asiatics in general and Indians in particular on the ground of their race
constitutes a denial of human rights and fundamental freedom and is
contrary to the Charter’. (Yearbook of the United Nations, 1946-1947,
p. 145.) Long arguments took place year after year concerning the com-
petence of the General Assembly under Article 2 (7) of the Charter but
the issue recurred in one Assembly after another. In 1950, the resolution
adopted by the General Assembly recited “that a policy of ‘racial
segregation’ (Apartheid) is necessarily based on doctrines of racial
discrimination”. It was the Asian States which brought the broader
apartheid issue to the General Assembly. ({bid., 1950, p. 407.) In 1956,
for example, there were separate resolutions on Indians in South Africa
and on the general problem of racial discrimination in that country.
This latter resolution, actually adopted in January 1957, came at a time
when there were only four African States.in addition to South Africa,
who were Members of the United Nations. (Jbid., 1956, p. 144, cf. G.A.
Res. 820 (IX), 14 December 1954.) Counsel for Respondent stressed
actions in “these later years” (C.R. 65/87, p. 48); he may have meant after
November 1960—the “critical date” when the Applications in these cases
were filed.

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It is not inappropriate to recall that in the period after the end of
World War I the Permanent Court of International Justice, as well as
the Council of the League, were called upon repeatedly to deal with legal
problems connected with Polish-German antagonisms which from time
to time flared into very sharp differences of opinion (see Walters, A
History of the League of Nations, 1952, Vol. I, pp. 406-408). In the General
Assembly of the United Nations and in the Security Council immoderate
and intemperate language has, unfortunately, often been used on a
variety of issues. It would be invidious to quote specific instances, but
since 1946 public attention has often focused on the violence with which
Members of the United Nations have condemned policies and practices
of other Members in areas outside as well as inside the continent of
Africa.

Both this Court and the Permanent Court of International Justice
have had to resist efforts to divert it from its judicial duty by allegations
of the political motivations of those who have sought to set its processes
in motion either by requests for advisory opinions or by applications
in contentious proceedings. The Permanent Court was attacked for
its opinion in the Austro-German Customs Régime matter. (See Hudson
in 26 American Journal of International Law, 1932, pp. 1, 9.) Judges
Adatci, Kellogg, Rolin-Jaequemyns, Sir Cecil Hurst, Schticking, van
Eysinga and Wang, in a joint dissent in that case made a notable state-
ment:

“The undersigned regard it as necessary first of all to indicate
what they believe to be the task assigned to the Court in this case.
The Court is not concerned with political considerations nor with
political consequences. These lie outside its competence.

The Council has asked for the opinion of the Court on a legal
question. [The question is stated.] That question is purely legal in
the sense that it is concerned with the interpretation of treaties.”
(P.C.LJ., Series A/B, No. 41 (1931), p. 75.)

That is the situation in the instant contentious proceedings 1.

The point is well put by the judicial commission appointed under
Article 26 of the Constitution of the International Labour Organisation
to examine the complaint filed by the Government of Portugal concerning
the observance by the Government of Liberia of the Forced Labour
Convention, 1930 (No. 29):

1 It may be noted that in the law of the United States in cases where the plaintiff
brings suit in a general interest as noted above, the motive of the plaintiff is of
no concern to the Court even where it is shown that he brings the suit merely to
be revenged on the defendant or out of spite or malice. See Corpus Juris Secundum,
Vol. I, pp. 1064-1065.

414
417

SOUTH WEST AFRICA (DISS. OP. JESSUP)

“In these circumstances, the Commission cannot regard the
complaint as calling for summary dismissal on the ground of its
alleged political character. The Commission is not concerned with
any political aspects which the matter may have; the task entrusted
to it is that of examining judicially whether or not there has been
or is a failure by Liberia to secure the effective observance of the pro-
visions of the Forced Labour Convention, 1930 (No. 29), ratified
by Liberia on 1 May 1931. In taking this view the Commission has
been guided by a series of decisions of the International Court of
Justice in cases in which it was contended before the Court that it
should decline to give an advisory opinion by reason of the political
nature of the questions on which its opinion was requested, and
notably by the decisions of the Court in the Conditions of Admission
of a State to Membership of the United Nations (Article 4 of the
Charter) case ! and the Certain Expenses of the United Nations case ?.
As was said by the Court in the Conditions of Admission case},
the Commission ‘is not concerned with the motives which may
have inspired this request’; it is no part of its function either to
endorse or to impugn them; while the question referred to the
Commission may be, to use the language of the Court in the Expenses
case 3, ‘intertwined with political questions’, the task of the Com-
mission is to examine judicially without regard to such consider-
ations, whether or not the obligations of the Constitution and the
Convention are being carried out.” (International Labour Organi-
sation, Official Bulletin, Vol. XLVI, No. 2, Supplement IT, April
1963, at p. 155. The Commission was composed of Judge Armand-
Ugon, a Member of the International Court of Justice from 1952
to 1961, Judge Goonetilleke of Ceylon and Professor Castrén of
Finland who had wide experience as a judge in international arbi-
trations, etc.)

As this Court said in the Northern Cameroons case U.C.J. Reports
1963, p. 15, at p. 27):

“The Court is not concerned with the question whether or not
any dispute in relation to the same subject-matter existed between
the Republic of Cameroon and the United Nations or the General
Assembly. In the view of the Court it is sufficient to say that, having
regard to the facts already stated in this Judgment, the opposing
views of the Parties as to the interpretation and application of
relevant Articles of the Trusteeship Agreement, reveal the existence
of a dispute in the sense recognized by the jurisprudence of the

1 ZCJ. Reports 1947-1948, p. 61.
2 Jbid., 1962, pp. 155-156.
3 Jbid., p. 155.

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418 SOUTH WEST AFRICA (DISS. OP. JESSUP)

Court and of its predecessor, between the Republic of Cameroon
and the United Kingdom at the date of the Application.”

It is equally true in the instant case, that the Court is not concerned
with the question whether or not any dispute in relation to the same
subject-matter existed or exists between the Republic of South Africa
and the United Nations or the General Assembly.

SECTION X. THE QUESTION OF THE LAPSE OF THE MANDATE

Another argument has been advanced which, if well-founded, would
negative the existence of Applicants’ right to institute proceedings under
Article 7 (2) of the Mandate. The first of Respondent’s final submissions
as presented to the Court by Respondent’s Agent on 5 November 1965
reads as follows:

“That the whole Mandate for South West Africa lapsed on the
dissolution of the League of Nations and that Respondent is, in
consequence thereof, no longer subject to any legal obligations
thereunder.”

It has already been pointed out that there is nothing in the so-called
“new facts” presented by Respondent which would lead the Court to
reconsider the view which it has consistently taken since 1950 that the
Mandate did not lapse on the dissolution of the League. On this point
the Court was unanimous in 1950 and there were no opposing views
expressed in 1955 or 1956. Moreover it is still true, as the Court stated
in its Advisory Opinion of 1950, quoted by the Court in its 1962 Judg-
ment, that—

“If the Mandate lapsed, as the Union Government contends,
the latter’s authority would equally have lapsed. To retain the rights
derived from the Mandate and to deny the obligations thereunder
could not be justified.” (Z.C.J. Reports 1962, p. 333.)

In the present phase of the case, Respondent sought to surmount
this difficulty by alleging that it had a title to South West Africa based
on conquest. On 27 May 1965, counsel for Respondent stated (C.R.
65/39, p. 37): “The Respondent says, Mr. President, that the legal
nature of its rights is such as is recognized in international law as flowing
from military conquest.” It is doubtful whether Respondent relied
heavily on this argument which is in any case devoid of legal foundation.

It is a commonplace that international law does not recognize military
conquest as a source of title. It will suffice to quote from Lauterpacht’s
Oppenheim (8th ed., Vol. I, p. 567):

“Conquest is only a mode of acquisition if the conqueror, after
having firmly established the conquest, formally annexes the terri-
tory. Such annexation makes the enemy State cease to exist, and
thereby brings the war to an end. And as such ending of war is named
subjugation, it is conquest followed by subjugation, and not con-

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quest alone, which gives a title and is a mode of acquiring territory.
It is, however, quite usual to speak of ‘title by conquest’, and every-
body knows that subjugation after conquest is thereby meant.
But it must be specially mentioned that, if a belligerent conquers
a part of the enemy territory and afterwards makes the vanquished
State cede the conquered territory in the treaty of peace, the mode
of acquisition is not subjugation but cession.”

It is of course known that Germany did not cede South West Africa
to South Africa and that South Africa did not conquer the whole of the
territory of Germany.

I do not find it necessary to add much to what the Court and the
separate opinions of Judges McNair and Read in 1950 and the Court in
1962 have said about the fact that the Mandate survived the dissolution
of the League of Nations, beyond what has already been noted above in
connection with the Palestine question. But it is interesting to take note
of a memorandum prepared by the Secretariat of the United Nations in
1950 at the request of the Economic and Social Council on the question
of the then legal status of the régime established by and under the League
of Nations for the protection of minorities. Much of the memorandum
is pertinent to the mandates !.

The memorandum explores general principles concerning the termi-
nation of international legal obligations and the various factors or
circumstances of change which need to be considered. Early on, the
memorandum asserts:

“An international obligation remains valid so long as there is
no cause for its extinction. It follows that the extinction of the
obligation cannot be presumed; it is essential to establish the fact
which caused its extinction, such as the expiry of its period of
validity or the disappearance of the object of the obligation.”
(P. 3.)

The memorandum concludes that the Second World War “in itself
has not caused the extinction of the obligations relating to minorities”
(p. 9.)

At page 11 of the memorandum there is a heading—“the theory that
the Declarations should be deemed to have lapsed’”-——and under the
heading there is the indication that “the following arguments are adduced
in support of this theory”. It is in the assemblage of these arguments
that the memorandum states: “The dissolution of the League of Nations
involved the extinction of the obligation.” A further argument is stated,
namely that “juridically speaking, the United Nations is not the ‘suc-

1 The document is E/CN.4/367 of 7 April 1950; it is supplemented in E/CN.
4/367/Add. 1, of 27 March 1951, in which the Secretariat deals with certain criticisms
of its first memorandum and with certain new facts.

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cessor’ of the League of Nations”. The Secretariat’s comment on these
arguments is as follows:

“It is true, as has been stated above (p. 11), that the United
Nations is not legally the successor of the League of Nations ...
Nevertheless, the United Nations, like the League of Nations, is the
representative organ of the international community, and in this
capacity is naturally called upon to assume the functions exercised
by the League of Nations vis-à-vis States which had entered into
obligations towards organs of the League of Nations.” (P. 14.)

Then after quoting from United Nations resolutions, especially G.A.
24 (1) of 12 February 1946:

“Tt is true that the General Assembly has not yet decided that the
United Nations should assume the functions exercised by the
League of Nations with regard to the protection of minorities, but
as section C of the resolution provides for the possibility of the
transfer to the United Nations of the functions and powers entrusted
to the League of Nations under treaties, international conventions,
agreements and other instruments having a political character, it
may be concluded that the General Assembly has assumed that the
dissolution of the League of Nations has not resulted in the ipso
facto termination of the obligations arising out of these various
instruments ...

It is interesting to compare the case of the international mandates,
which is to a great extent analogous to that of the protection of
minorities. The ‘mandatory’ Powers were bound by an agreement with
the League of Nations. The United Nations Charter (Article 77)
expressly stated that the Trusteeship System would apply to ‘terri-
tories now held under mandate’.” (P. 15.)

The memorandum also considers the argument that the lapse of the
League of Nations guarantee of the minority régime had destroyed the
balance of the system. To these arguments the memorandum replies:

“This consideration is certainly important, but it is not decisive.
It should not be forgotten that the United Nations has taken the
place of the League of Nations and has assumed the general func-
tions formerly performed by the League.” (P. 17.)

The memorandum continues:

“The conclusion therefore seems warranted that so far as the
ordinary causes of the lapse of international obligations are con-
cerned, the suppression of the guarantee formerly accompanying
the obligations in respect of minorities has not extinguished the
obligations themselves.”

In the ensuing portions of the memorandum, various specific mino-
rities agreements are considered seriatim. Here there is detailed analysis

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of such “profound and general” changes of circumstances as those
which affected Poland and Czechoslovakia. However, in the case of
Turkey, where no new treaty since the Treaty of Lausanne of 1923 had
intervened, the memorandum concludes that the factors of change,
including the dissolution of the League, were not sufficient to have
altered Turkey’s obligations.

“Unless it is considered that all obligations concerning the
treatment of minorities are now no longer valid, the obligations
undertaken by Turkey have retained their validity.” (P. 57.)

The memorandum says in conclusion:

“Reviewing the situation as a whole, therefore, one is led to
conclude that between 1939 and 1947 circumstances as a whole
changed to such an extent that, generally speaking, the system
should be considered as having ceased to exist.” (P. 71.)

However, in response to certain criticisms and certain new facts the
Secretariat issued an addendum on 27 March 1951. In this addendum
the Secretariat calls attention to the Court’s Advisory Opinion of 1950
on the International Status of South West Africa. After quoting from
pages 133 and 136 of that Opinion the addendum reaches the following
conclusions:

“The relevance of the opinion of the Court on South West Africa
for the present question of the validity of the minorities undertakings
is simply that it establishes the principle that the extinction of the
League of Nations does not ipso facto carry with it the extinction
of a system established under its auspices. To draw any further
analogy between the two systems of mandates and minorities would,
however, be difficult; the differences between the two are too
numerous and too well known to enumerate here.

Finally the opinion of the Secretariat that the minorities system
has ceased to exist was not based solely on the ground of the League’s
extinction, which was only one element in one of the several grounds
advanced.”

The Absence of Reversionary Rights of the Principal Allied and
Associated Powers

During the oral proceedings (C.R. 65/31, p. 54) a question was put
to Counsel for both Parties by one of the members of the Court, in-
quiring whether it was their view that any residual right inhered in the
Principal Allied and Associated Powers to deal with problems of the
mandates after the dissolution of the League. Counsel for Respondent
refused to “express any view” on the question (C.R. 65/39, p. 40), a
refusal of which the Court is required by Article 49 of the Statute to
take ‘formal note”. But the argument that the Principal Allied and
Associated Powers had any such residual or reversionary rights is devoid
of merit. It finds practically no support in the doctrine. (Cf. Duncan

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422 SOUTH WEST AFRICA (DISS. OP. JESSUP)

Hall, “The Trusteeship System”, XXIV, British Year Book of International
Law, 1947, pp. 33, 50.)

It needs no elaborate demonstration to show that Article 119 of the
Treaty of Versailles did not involve a cession of territory to the Allies;
the idea of a cession which would have meant even a momentary or
technical lodgment of sovereignty over the former German colonies
was wholly at variance with the agreed settlement of this colonial problem.
According to Innes, C.J., in Rex v. Christian (1923), South African Law
Reports, 1924, Appellate Division, at pages 108-109:

“The expression ‘renounce in favour of’ is sometimes used in the
Treaty as equivalent to ‘cede to’ ... Not so with the overseas
possessions; or at any rate with such of them as fell within the oper-
ation of Article 22. They were not by Article 199 ceded to all or
any of the principal powers, any more than the City of Danzig was
ceded to them under Article 100.”

The Allies acquired the right to allot the mandates and thereafter became
functi officio. The mandatories were mandatories on behalf of the League
and not of the Powers. The South West Africa Mandate provides that
changes should have the consent of the Council of the League, not just
the consent of the Powers. In 1946, the Assembly undertook to exercise
the powers of the Council; the Powers, as such, did not purport to exer-
cise any rights of disposition or control save as they may have derived
some new right of disposal under the Charter in connection with the
trusteeship system.

To assume that the Principal Allied and Associated Powers had some
residual or reversionary rights would entail a consideration of a number
of other factors. As is well known, the position of the United States
was a special one in which by separate treaty with Germany it claimed
as against Germany all the rights of a party to the Treaty of Versailles
and by separate bilateral treaties with other States assured its rights
in certain mandated areas, but made no such treaty in regard to South
West Africa although it did make a treaty with Japan concerning rights
in the ‘C’ Mandate of Pacific Islands north of the Equator. Query
whether in 1945 it could be said to have identical rights—if any such
there were—with France and Great Britain. (But see Whiteman, Digest
of International Law, Vol. I, p. 602.)

If Italy and Japan at any time had any such rights, they surrendered
them in the Peace Treaties of 1947 and 1951 which contained the following
stipulations:

Article 40 of Italian Peace Treaty, 1947:

“Italy hereby renounces all rights, titles, and claims deriving
from the mandate system or from any undertakings given in con-

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nexion therewith, and all special rights of the Italian State inrespect

of any mandated territory.”

Article 2 of the Japanese Peace Treaty, 1951:

‘“{d) Japan renounces all right, title and claim in connection with
the League of Nations Mandate System, and accepts the
action of the United Nations Security Council of April 2,
1947 extending the trusteeship system to the Pacific Islands
formerly under mandate to Japan.”

It would be curious to find that a right to resume control or to com-
plain of breaches now appertains only to France and Great Britain.
I am not aware that any of the “Powers” asserted such a right during
the San Francisco Conference or at any other time. The history of the
Palestine Mandate and of Great Britain’s actions with respect to the
termination of the Mandate lend no support to any theory of residual

or reversionary powers.

Even if one asserts the existence of reversionary or residual rights,
this could hardly affect the rights of Members of the League in general,
under Article 7 of the Mandate, to complain of violations of clauses
of the Mandate. If (quid non), the Principal Allied and Associated
Powers or some of them who were Members of the League had an
additional title to make complaint, that would not change the

situation.

SECTION XI. THE LEGAL RIGHT OR INTEREST OF APPLICANTS
APPRAISED IN THE CONTEXT OF THE JURIDICAL NATURE
OF THE REAL MERITS OF THE CASE

Although the Judgment of the Court recognizes that some of the
Applicants’ submissions request “pronouncements and declarations”
_and that the first and second submissions are included in that class, the

Judgment says—
“*,.. the question which has to be decided is whether .. . any legal
right or interest (which is a different thing from a political interest)
was vested in the members of the League of Nations, including the
present Applicants, individually, and each in its own separate right
to call for the carrying out of the mandates as regards their conduct
clauses”.
But the question also is whether the same Applicants individually
had a right to ask the Court to interpret the Mandate so that—for ex-
ample—those States might then determine whether to proceed through
political channels to induce the Mandatory to act in a certain way.
Such an inter-relation of the function of the Permanent Court of Inter-
national Justice and of the political organs of the League of Nations
was frequently illustrated in connection with the peace settlements
after World War I. Thus, under Article 11 of the Covenant, it was “de-

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clared to be the friendly right of each Member of the League to bring to
the attention of the Assembly or of the Council any circumstance what-
ever affecting international peace or the good understanding between
nations upon which peace depends”. Under Article 35 (1) of the Charter
of the United Nations, Members have a comparable right if there is
a “situation which might lead to international friction”. Assume a Mem-
ber of the League (or of the United Nations) considered that the practice
of apartheid in the mandated territory of South West Africa was in
violation of the Mandate and that it might disturb “good understanding
between nations’’—as indeed it has—or that it might “lead to interna-
tional friction’’—which indeed it has. Assume that such hypothetical
member, before taking the matter to the Assembly (or General Assembly)
wished to secure an authoritative pronouncement from the Interna-
tional Court as to whether its interpretation of the mandate was cor-
rect. Surely it would have a legal interest cognizable under paragraph 2
of Article 7 of the Mandate. Even a potential intention to act under
Article 11 of the Covenant (or Article 35 of the Charter) would justify
an application to the Court and there is no legal requirement that an
applicant should declare the reason why it wished the information.
It might, as the Permanent Court said in the Memel case, merely wish

a “‘guide for the future’’.

The Judgment accepts or rejects certain conclusions by the test of their
acceptability as being reasonable. By this test I find it impossible to find
that because the “missionary” rights under Article 5 may constitute what
the Judgment calls “special interests” rights, or may have what it calls in
some contexts a “double aspect’’, the Applicants’ legal right or interest to
prosecute a claim to judgment in regard to missionaries, must be admitted
but that they have no such right or interest in regard to the practice of
apartheid. This seems to me an entirely artificial distinction, and, as I
have shown, not supported by the history of the drafting. Because Ap-
plicants did not specifically invoke Article 5 in their Applications, the
Judgment denies them the right to obtain a finding whether the Mandate :
—on which any such right would rest—still subsists. Applicants do base
their ninth submission on Article 7 (1) which provides that the terms of the
Mandate may not be changed without the consent of the Council of the
League; the Judgment denies them the right to know whether even their
admitted rights under Article 5 could be terminated by the unilateral act
of the Mandatory although it is said that “there is no need to enquire’”
whether the consent of the Member would have been necessary. The
Judgment does not say whether the consent of every Member would be
necessary for the termination of a procedural clause. Looking at the
history of the drafting of the Mandate with the intimate connection
between the two paragraphs of Article 7, it again seems highly artificial to
take a position as follows: the decision of the Court in 1962 that para-

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graph 2 of Article 7 survives, in whatever form or way, is accepted, but
this surviving right of resort to the Court does not entitle Applicants to
learn from the Court whether paragraph 1 of Article 7 is still in
force, although if it is not, the Mandatory might also terminate the
second paragraph of Article 7 and deny to Applicants even what are—
under the Judgment of the Court—the meagre rights to file their applica-
tions and learn that the Court has jurisdiction. Jurisdiction to do
what? Jurisdiction, according to the Judgment, to say that the Court
cannot give effect to the claims because Applicants lack a legal right or
interest.

The intimation in the Judgment that the Applicants’ interest in, for
example, the practice of apartheid in the mandated territory of South
West Africa, is only political and not legal, harks back to the joint dis-
sent of 1962. At page 466 of that joint opinion, it was said that while a
Court generally must “‘exclude from consideration all questions relating
to the merits” when it is dealing with an issue of jurisdiction:

“It is nevertheless legitimate for a Court, in considering the
jurisdictional aspects of any case, to take into account a factor
which is fundamental to the jurisdiction of any tribunal, namely
whether the issues arising on the merits are such as to be capable of
objective legal determination.”

The opinion continued to say that the principal question on the merits
would be whether the Mandatory is in breach of its obligations under
Article 2 of the Mandate. They concluded—provisionally, it is true—that
the problems presented are suitable for appreciation in a technical or
political forum but that the task “hardly appears to be a judicial one”.
The thesis that the interpretation of Article 2 of the Mandate is more
political than legal is in effect another way of saying as today’s Judgment
says, that the interest of Applicants in the interpretation or application
of Article 2 is political rather than legal. The question, viewed in this
light, is a question of justiciability and thus requires an examination of
the criteria which the Court could use in discharging this task. At least
the third submission of the Applicants should be rejected if it is not a
justiciable issue to determine whether the practice of apartheid in the
mandated territory of South West Africa promotes ‘the material and
moral well-being and the social progress of the inhabitants of the Terri-
tory’. I proceed to deal with this problem.

The problem involves (a) the identification of the persons who may be
described as the beneficiaries of the mandate; and (b) the justiciability
of the claims and the standard to be applied.

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426 SOUTH WEST AFRICA (DISS. OP. JESSUP)

(a) The Identification of the Persons who May Be Described as the Benefi-
ciaries of the Mandate

There is no uniformity of terminology on this point in the texts of
Article 22 and in the Mandate itself. In paragraph (1) of Article 22, there
is reference to territories “inhabited by peoples not yet able to stand by
themselves under the strenuous conditions of the modern world”. There
is a further reference to “such peoples” in paragraph (1) and the same
term is used in paragraph (2). Paragraph (3) mentions “the people”.
Paragraph (5) mentions “peoples” and “‘natives’’, while (6)—-which is the
paragraph dealing specifically with ‘C’ mandates—mentions “the in-
digenous population”.

In the Mandate for South West Africa, the second paragraph of Article
2 refers to “‘the inhabitants”, while the third paragraph of Article 3
mentions “natives”, as does Article 4. |

Importance attaches to the problem because the population of the
territory, when it was placed under mandate in 1919, comprised some
194,000 non-White Africans, some 6,000 “‘Basters’’, who were persons of
mixed blood, an additional 3,500 classified as ‘‘Coloureds”’, and about
20,000 White persons or ‘Europeans’ of whom the majority were Germans
but “a considerable portion” were South Africans*. If the “sacred
trust” obligated the Mandatory to “promote to the utmost the material
and moral well-being and the social progress” of all the inhabitants
of the territory, that is, of the European Whites as well as of the non-
Whites, then the Mandatory might justify certain policies which were
especially directed to the welfare of the White segment of the popu-
lation. But if it was the non-White segment of the population whose
well-being and progress were to be promoted, then other criteria
would be applicable. Since the varied terminology referred to above does
not provide a ready answer, one must consider other aids to interpreta-
tion.

The sound conclusion would seem to be that in the ‘C’ mandates, the
protective provisions were intended to apply to the indigenous peoples
and not to the White settlers. It is inconceivable that the representatives
of the Allies who in 1919 drafted the Peace Treaty with Germany (of
which the Covenant was a part) and the Mandates, were concerned about
the development of the welfare and progress of German settlers in
South West Africa or even about the White farmers from South Africa.
It is paragraph 6 of Article 22 which applies to the ‘C’ mandates and this
paragraph explicitly mentions “the indigenous population”.

In Rex v. Christian, cited above, Judge de Villiers spoke of the Manda-
tory’s “duties to the inhabitants of the territory, more especially towards
the indigenous populations”.

1 The figures in round numbers are from table XVI in the official report of the
so-called Odendaal Commission of 1963, at page 37, and are given there as of
1921 when, it is said, the first reliable statistics were available. In the Counter-
Memorial, Book III, p. 379, sec. 87, it is stated that the “European” population
was 14,830 in 1913; the statement about the German and South African elements
is also taken from this Jatter source.

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427 SOUTH WEST AFRICA (DISS. OP. JESSUP)

Opinion in the Permanent Mandates Commission was not unanimous.
At the Sixth Session in 1925 after Mr. Smit, Representative of South
Africa, had told the Commission that the time would come when South
West Africa would become independent, M. Rappard said:

“,.. it was not for the white minority in a mandated territory to
declare when this moment had arrived. The mandate system was
designed to secure the welfare of the natives and this was the object
which the authors of the system had kept in view.” (P. 60 of the
Minutes.)

At the Seventh Session in 1925 the subject was much discussed. M. van
Rees, the Vice-Chairman submitted a note which is Annex 4 to the
Minutes (p. 151). He said in this “Analysis of the Dispositions Relating
to the Application of the Mandates System’’, that the provisions of the
Covenant and the mandates—

“are sometimes not as clear and definite as they might be. So vague
are they, indeed, that occasionally they seem to lend themselves to
very different interpretations, while a number of them, if taken
literally, lead to illogical conclusions.”
He added that—
“... there is no official commentary to inform us as to their origin.
Under these circumstances, it is for the Commission to study them
and to interpret them for its own use whenever it meets with an
obscure clause, so as to obtain a set of guiding principles which may
enable it to appraise the administration of the mandatory Powers.”
(P. 152.)
M. van Rees continued in Annex 4a with a specific study of the liquor
traffic; he was severely critical of the drafting of Article 22. He quotes
from an article by Professor Henri Rolin who said of Article 22:

““,.. the vagueness of certain phrases, the clumsy circumlocutions,
the absence of that simplicity and directness which enables us to see
in the expressions what is really meant, cause us obvious embarrass-
ment as soon as we read it . . . It is clear that these over-refined and
badly turned paragraphs were not originally written in French.”

In Annex 12, General Freire d’Andrade interpreted Article 22 as
applying not just to the native peoples but to all the inhabitants. Sir F.
Lugard expressed his disagreement with Freire d’ Andrade’s interpretation
(see Annex 12a, p. 206):

“... the reference to ‘such peoples’ in the first paragraph of Article
22 of the Covenant refers explicitly to the ‘peoples’ just mentioned—
e.g., those ‘not able to stand alone’——and not to all inhabitants of the
mandated territory; but I concur that the Mandatory is responsible
for all the inhabitants.”’

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Freire d’Andrade replied in turn (Annex 125) explaining his point of
view, not as favouring the Whites, but as follows (p. 208):

“Thus I think that in Africa Natives and Europeans must go side
by side on a footing of individual equality. And this will be impossible
if blacks are to be settled on their lands under the supervision of
their directors until such time as they can govern themselves and
become little independent peoples. Moreover, will such a time ever
come?”

At the Ninth Session, 1926, when Mr. Smit was present representing the
Union of South Africa, M. Rappard said (at p. 35):

“South West Africa ... was being administered by a small
minority of white people and no one doubted that this minority
would soon be capable of administering the country independently
of the South African Union. This, however, did not at all mean that
the inhabitants, that was to say, the native majority, would be able
to stand by themselves.”

At the Twenty-second Session (1932), Mr. Te Water, representing the
Union of South Africa, in a discussion of a speech by the Prime Minister,
said (at p. 24):

“No doubt, when the Prime Minister spoke of the future of South
West Africa as being in the hands of its own population, he had in
mind the thinking part of the population—the white population.”

At the Twenty-sixth Session (1934) M. Rappard, in an exchange of
views with Mr. Louw, representing South Africa, said that—

“... the mandate was temporary in the sense that it was for the
administration of the natives until they were able to stand by them-
selves. The white population was eminently able to do so, but it was
clearly not to that population that Article 22 of the Covenant
referred.’’ (P. 52.)
Mr. Louw did not challenge this statement. M. Palacios, another member
of the Commission, agreed with M. Rappard:

“It was not enough simply to refer to the ‘provisions’ of the
mandate; the actual ‘institution’ of the mandate, according to the
letter and spirit of Article 22 of the Covenant, was what was of chief
importance. It was obvious that the tutelary provisions of the man-
date were based on that article, but what it chiefly brought out was
the special and essential status of the territory and its inhabitants.”
(P. 52.)

In the following year, at the Twenty-seventh Session, M. Rappard
declared that—

“The mandate had never been intended to provide for the specific
interests of this or that section of the white population ... The
policy of the mandate was, however, to improve the position of the

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natives, even possibly at the expense of white settlers.’’ (Pp. 158
and 161.)
Lord Lugard generally agreed with what M. Rappard had said, asking —

‘“,,.. whether, after fifteen years of mandatory Government, there
were still no natives süfficientiy educated and developed to be able
to express views on current questions, or to sit on native councils
and native courts, or even on the Legislative Assembly or the
Advisory Council?” (P. 162.)

Dr. Conradie of South Africa regretted to admit there were no Natives
who could be thus helpful.

These various illustrative examples are by no means conclusive but
show how the question of interpreting Article 22 and the mandates
concerned the Permanent Mandates Commission. Here is another case
where a purely textual interpretation according to a rule of “clear
meaning” would, in fact, be meaningless. All of the circumstances
surrounding the evolution of the mandates system and the preparation
of the most unusual text of Article 22, indicate that it was the intention
to provide for the peoples who were thought to be “‘not yet able to stand
by themselves’? because they had not absorbed Western customs, man-
ners and ways of life and government. (Cf. the statement of Mr. Te Water,
representative of South Africa, at the Twenty-second Session of the
Permanent Mandates Commission, p. 25 of the Minutes.) The European
(German) and South African settlers and farmers do not fit that category.
T have not seen any evidence that the drafters at Paris or in the Mandates
Commission in London were aware of the existence in South West Africa
of the relatively small numbers of Coloureds or Basters. It may be that
if the representatives of South Africa at the Peace Conference had been
asked whether the Coloureds and Basters were more comparable to the
**Natives”’ or indigenous Africans, than to the Europeans in the Territory,
they would have advised that they were more comparable to the former.
On such a basis I think these two small groups would have been consi-
dered to be covered by the protective provisions.

Of course the Mandatory should not ignore the welfare of the White
inhabitants but this is due to the general responsibilities of a governing
authority and not the precise duties laid upon a mandatory.

(b) The Justiciability of the Claims and the Standard to Be Applied

The Court’s Judgment seems to proceed on the assumption that
the claims of Applicants are perfectly clear and need no analysis. But
the record shows continual disagreement on the nature of those claims
and the final determination of their content and meaning were spe-
cifically reserved for subsequent decision by the Court. In view of

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the nature of the Court’s Judgment, that decision has not been made.

It would seem to be a truism that in an international court which is
not bound by any technical rules of procedure or evidence, the meaning
of submissions should be sought in the intention of the party submitting
them’. The meaning must be ascertained from the entire record, including
statements made before and after the formulation of the submissions.
“The Judgment of the Court should attach to the submissions of the
Parties a purpose, though not necessarily an effect, which the Parties
attached to them.” (Separate opinion of Judge Sir Hersch Lauterpacht
in Norwegian Loans, I.C.J. Reports 1957, p. 35.)

The difficulty of finding the meaning of Applicants’ submissions
arose mainly out of their use of the expression “norm and/or standards”
to indicate the criterion to be used to determine whether the practice
of apartheid was compatible with the obligations of the Mandate. The
problem is a focal one and can best be clarified by reference to the oral
proceedings.

The first witness was called for Respondent on 21 June 1965 (C.R.
65/49). From this date on, almost to the end of the oral pleadings,
Counsel for Applicants objected that Applicants’ contentions were
being erroneously stated and therefore formed an improper basis for
the testimony of the witnesses. On 22 June (C.R. 65/50, pp. 18 ff.) Counsel
for Applicants made a “basic objection”, arguing that Counsel for
the Respondent had made “an ambiguous and erroneous formulation”?
of the Applicants’ case. According to Counsel, “such an improper
foundation is not only confusing in its nature and inherently to the
witnesses, to the Applicants, and, with respect, to the Court itself, by
purporting thus to direct evidence at a position falsely attributed to
the Applicants ...”. Counsel said further that the “improper foun-
dation” “is based upon an unintelligible misrepresentation of the
Applicants’ theory and position”. The President of the Court assured
Counsel that his rights would be fully protected and that it would be

1 Counsel pleading before the Court are not always aware that the technical
procedural rules prevailing in many municipal law systems do not prevail in this
Court which can never be reduced to the role of acting as umpire or referee in
a forensic contest or debate. This is well settled in the jurisprudence of the Court
and in doctrine. A former First Secretary of this Court has well said:

[Translation] “The lawyers (counsel and advocates) of the Parties come
before the Court steeped in the atmosphere of their national legal backgrounds.
They often find it very difficult to put aside their own procedural rules and to
bear in mind the special conditions and requirements of international justice.”
(Jean-Flavien Lalive, “Quelques remarques sur la preuve devant la Cour
permanente et la Cour internationale de Justice”, 1950, Vol. VII, Annuaire
suisse de droit international, p. 77 at p. 92.)

On 22 June 1965 the Court put to the Parties a series of questions concerning
the extent of the Court’s freedom to make its own interpretation of paragraph 2
of Article 2 of the Mandate, no matter what the actual arguments of the Parties.
(C.R. 65/50, pp. 68-69.) The Parties were thus made aware that the subject was in
the mind of the Court.

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SOUTH WEST AFRICA (DISS. OP. JESSUP)

for the Court to decide on all aspects of the evidence proffered and upon
any objections he made.

Later on the same day (at pp. 28 ff.), Respondent’s Counsel commented
on the observations of Counsel for Applicants. In response, Counsel
for Applicants (at p. 33) made the following comprehensive re-statement
of Applicants’ position:

429

“The Applicants’ case is, in the Applicants’ submission, not
accurately or fairly reflected in the Respondent’s summary thereof
or description thereof, as to which the evidence is proffered by
Respondent. The phrase which is used and attributed to the Appli-
cants, and described by Respondent in repeated references in the
oral proceedings (to which citations will gladly be offered by the
Applicants if permitted or requested), does not correspond to the
fundamental theory of the Applicants’ case.

There are two major branches of the Applicants’ case. One
relates to standards of interpretation which have been applied
by competent international organizations as part of the scheme
of the Mandate. This involves the standard of interpretation, of
a content described by the Applicants, in relation to the supervisory
organ responsible for the supervision of the Mandate, and also
involves the relationship between that administrative agency and
the Court. This branch of the case, therefore, reflects and is based
upon a legal theory, which involves the mandate jurisprudence,
which involves the clear, explicit and virtually unanimous pronounce-
ments and judgments of the competent international organ which
the Applicants submit, for reasons which have been set forth in
detail, should be accepted by the Court as authoritative inter-
pretations of the Mandate. It is apartheid we are talking about.
If this witness or any witness addresses himself as an expert or
otherwise to the questions of discrimination and separation which
are implicit in and reflected in the undisputed facts of record in
this case, there would be no question of admissibility of such
evidence so directed by competent witnesses with respect to that
branch of the Applicants’ case.

And, secondly, Mr. President, with respect to the norm, the rule
of international law for which the Applicants contend in terms
of Article 38 of the Statute—that, as the Court will well be aware,
has been presented to the Court as an alternative and a cumulative,
or supplemental, argument on the basis that the practice of States
and the views of the competent international organs are so clear,
so explicit, and so unanimous in respect of the policies against
discrimination, that such standards have achieved the status of an
international rule of law, as a legal conclusion based upon the
application of Article 38.

These are the branches of the case. When the evidence is proffered
432 SOUTH WEST AFRICA (DISS. OP. JESSUP)

indiscriminately with respect to the formula, ‘norm and/or standards
as contended for by the Applicants’, reflecting and echoing a
description thereof in the oral proceedings which bears no resem-
blance to that contended for by the Applicants, either as a standard
of interpretation or as a rule of international law, the Applicants
have respectfully submitted that such a proffer based upon such
a premise or foundation is (with respect, the word used, Mr. Presi-
dent, was ‘unintelligible’ and it may not be ‘unintelligent’) but it
is incomprehensible as to what this witness, or any witness, asked
to testify with respect to such a formulation, is really addressing
himself to.”

Applicants kept stressing the point that their argument had two
alternative aspects; one aspect was based on the argument of the exist-
ence of a norm as a rule of law and the other aspect was reliance on a
standard of interpretation to which the governing effect of a legal rule
was not attributed.

The misunderstanding between Counsel persisted and Counsel for
Applicants raised objections time and again’. The issue was at times
stated to be—as Respondent contended—what was “the case” made
out by Applicants upon which they rested? As the President stated,
“it will be a matter for the Court to determine what was the case which
you made out ...”. (20 October 1965, C.R. 65/85, p. 57.) If the
Court, instead of rejecting the Applicants’ claim, had considered the
instant case on the full merits, it would have had to make a finding as
to the nature of the Applicants’ submissions or “case”. It would scarcely
seem credible that the Court, in a full review of the matter, could have
failed to accept the alternative character of Applicants’ arguments
based, on the one hand, on an international legal norm, and on the
other hand, on an international standard as an aid to interpretation.
The Court would have had to extricate the basic contention from the
semantic swamp in which the argument frequently bogged down.

The importance of the issue lies in the fact that at times the argument
of Applicants seemed to suggest that the so-called norm of non-dis-
crimination had become a rule of international law through reiterated
statements in resolutions of the General Assembly, of the International
Labour Organisation, and of other international bodies. Such a con-
tention would be open to a double attack: first, that since these inter-
national bodies lack a true legislative character, their resolutions alone
cannot create law 2; and second, that if Applicants’ case rested upon
the thesis that apartheid should be declared illegal because it conflicted
with a general rule of international law, it might be questioned whether
such a claim would fairly fall within the ambit of paragraph 2 of Article
7 which refers to disputes about the interpretation or application of

1 In a statement on 9 November, C.R. 65/96, Counsel recalled in detail and
with specific citations the occasion on which he had objected.

2 The literature on this point is abundant.
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433 SOUTH WEST AFRICA (DISS. OP. JESSUP)

the provisions of the Mandate. If the Court were to hold that the prac-
tice of apartheid is a violation of a general rule (norm) of international
law, it might seem to be passing on the legality of acts performed within
the Republic of South Africa itself, a matter, which, as already noted,
would be outside the Court’s jurisdiction. On the other hand, if the
Court had considered the question of the existence of an international
standard or criterion as an aid to interpretation of the Mandate, it
would have been pursuing a course to which no objection could be
raised. In my opinion, such a standard exists and could have been and
should have been utilized by the Court in performing what would then
be seen as the purely judicial function of measuring by an objective
standard whether the practice of apartheid in the mandated territory
of South West Africa was a violation of the Mandatory’s obligation
to “promote to the utmost the material and morel well-being and the
social progress of the inhabitants of the territory”.

The freedom granted to the Mandatory by Article 2 (1) to exercise
the option to treat the mandated territory for certain administrative
purposes “as an integral portion of the Union of South Africa”, is
circumscribed by the obligation to strive “to the utmost” to achieve the
ultimate objective which is clearly indicated by the Covenant of the
League of Nations. Nor does the specification in paragraph 2 of Article 2
of the Mandate that “the Mandatory shall promote to the utmost the
material and moral well-being and the social progress of the inhabitants”
in itself indicate the ultimate goal; this prescription, too, is a means to
the end and this is a required means since paragraph 6 of Article 22 of
the Covenant expressly subjects the exercise of the optional freedom
to the safeguards of the mandates system.

*
* *

It was necessarily left to the Mandatory, in the first instance, to
choose means appropriate to achieving the desired end. But its choice
was subject to review, in the first instance by the Permanent Mandates
Commission, next by the Council of the League and then by the Assem-
bly of the League in reviewing the report of the Council. There could
also be, as there is now, a resort to this Court. All this is true because
a mandatory was accountable !.

If the intention had been to leave all decisions, all choice of objectives

1 «all political power which is set over men, and ... all privilege claimed
or exercised in exclusion of them, being wholly artificial, and for so much a deroga-
tion from the natural equality of mankind at large, ought to be some way or other
exercised ultimately for their benefit ... Such rights, or privileges, or whatever
else you choose to call them, are all in the strictest sense a trust; and it is of the
very essence of every trust to be rendered accountable ...” (Edmund Burke’s
speech on Fox’s East India Bill, 1 December 1783.)

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and methods to the unreviewed and unreviewable! discretion of the
Mandatory, why the elaborate provisions imposing accountability and
establishing an expert body to examine, to cross-examine, to report
and to make recommendations? Why was Article 7 (2) included in the
Mandate?

There is no need and there is no intention here to impugn South
Africa’s motives; they have not been put in issue. It may be assumed
for purposes of this particular part of the analysis that the motives
are immaterial. The difficulties of reaching the objectives of the sacred
trust were and are enormous; they must not be underestimated; the
routes which might be followed toward the goal are multiple. Various
mandatories utilized various methods. But the choices of policies followed
by a mandatory are subject to review and it does not follow that each
member of the Court has to decide subjectively whether he believes
the mandatory has chosen wisely or correctly. The law abounds in
examples of standards or criteria which are applied by courts as tests
of human conduct. As in most aspects of the judicial process, the appli-
cation cannot be purely mechanical as machines may measure infini-
tesimal variations in the thickness of a sheet of metal 7. Judge Kaecken-
beek, as President of the Arbitral Tribunal of Upper Silesia under the
Geneva Convention from 1922 to 1937, wrestled successfully with many
problems such as the way to test unlawful discrimination through the
use of discretionary powers. He recalled, for example, that:

‘,.. the pressure of public opinion, largely manufactured by the
State, may be quite as tyrannous as systematic discrimination
by the authorities. It may be very hard to draw the line between
the two, although international protection [under the Geneva

1 “Unreviewable” except for the possibility of investigating a charge of mala
fides. I think no such charge against any mandatory was ever examined but specific
acts and policies in South West Africa were frequently criticized in the Permanent
Mandates Commission.

2 “We may try to see things as objectively as we please. None the less, we can
never see them with any eyes except our own. To that test they are all brought—
a form of pleading or an act of parliament, the wrongs of paupers or the rights
of princes, a village ordinance or a nation’s charter.” (Cardozo, The Nature of the
Judicial Process, 1921, p. 13; and at p. 90 quoting Brütt, Die Künst der Rechts-
anwendung, p. 57: “The interpreter must above all things put aside his estimate of
political and legislative values, and must endeavour to ascertain in a purely objective
spirit what ordering of the social life of the community comports best with the
aim of the law in question in the circumstances before him.”

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435 SOUTH WEST AFRICA (DISS. OP. JESSUP)

Convention] covers the latter and not the former.” (The International
Experiment on Upper Silesia, 1942, p. 261.)

The Permanent Court had occasion to say in regard to a right of
minorities: “There must be equality in fact as well as ostensible legal
equality in the sense of the absence of discrimination in the words of
the law.” (Series B, No. 6 (1923), p. 24.) (Cf. Series A/B, No. 44 (1932),
p. 28.) I cite these instances to show types of legal problems an inter-
national tribunal may solve !.

Municipal courts have had even wider experience. Objective standards
in the doctrine of provocation as a defence to a charge of murder were
developed by the English courts from 1837 on, but the “reasonable
man” test developed in English communities had to be adjusted when,
for example, cases had to be decided in the Indo-Pakistan sub-continent
with its “intricate class structure” and “extraordinary diversification
of racial, religious, cultural and economic interests . . .” (Brown, “The
‘Ordinary Man’ in Provocation: Anglo-Saxon Attitudes and ‘Unreason-
able Non-Englishmen’”’, 13 International and Comparative Law Quarterly,
1964, p. 203). One can trace in many legal fields the judicial applications
of tests for the interpretation of constitutions or laws—tests such as
due process of law, unreasonable restraint of trade, unfair competition,
equal protection of the laws, unreasonable searches and seizures, good

moral character, etc.

One of the great jurists of the United States in this century, Judge
Learned Hand, explained how his court found and applied a standard
to determine a legal provision:

“Very recently we [the federal court] had to pass upon the phrase
‘good moral character’ in the Nationality Act; and we said that
it set as a test, not those standards which we might ourselves
approve, but whether ‘the moral feelings, now prevalent generally
in this country’ would ‘be outraged’ by the conduct in question:
that is, whether it conformed to ‘the generally accepted moral
conventions current at the time’.” (Repouille v. United States, 165 F.
2d. 152, 153 (1947).)

In another context, the Supreme Court of the United States in 1957
used as a test in passing on the constitutionality of an obscenity law—

.. whether to the average person, applying contemporary com-

1 International tribunals have long been accustomed, in judging claims cases,
to apply an irternational standard as the test of a State’s liability for injuries to
aliens. Counsel for both Parties treated this point in a most unsatisfactory way but
it is not necessary to elaborate here.

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436 SOUTH WEST AFRICA (DISS. OP. JESSUP)

munity standards, the dominant theme of the material taken as
a whole appeals to prurient interest”. (Roth v. United States (1957)
354 U.S. 476, 489 1.)

In the law of the United States on trusts, the dominant tests ofthe
conduct of a trustee are the tests of “the reasonable man” or “the prudent
man”. It is not necessary to show an improper motive although that
also may be taken into account. “In the determination of the question
whether the trustee in the exercise of a power is acting from an improper
motive the fact that the trustee has an interest conflicting with that of
the beneficiary is to be considered.” (American Law Institute, Restate-
ment of the Law, Trusts 2d., 1959, p. 404.) The Restatement gives an
illustration of a conflicting interest which, mutatis mutandis, could by
analogy have an application to the Mandatory of South West Africa:

“A devises Blackacre to B in trust and directs B to sell Blackacre
if in his judgment such sale would be for the best interest of the
beneficiaries. It clearly appears that a sale would be highly advan-
tageous to the beneficiaries, but B refuses to sell the land solely on
the ground that the purchaser would probably use the land in a
manner to cause a depreciation in value of B’s own land situated
nearby. The court may order a sale of land.” (Loc. cit.)

The Restatement also points out that a trustee which has or should
have special facilities, like a bank or trust company. may be held to a
somewhat higher standard than that applied to an individual trustee
(op. cit., p. 530). A mandatory, be it noted, is an “advanced” nation
“who by reason of [its] resources, [its] experience or [its] geographical
position” is selected to assume the sacred trust. Finally it may be noted
that “... if the trustee is permitted to invest in a particular security
or type of security in his discretion and the circumstances are such that
it would be beyond the bounds of a reasonable judgment to make the
investment, the trustee is subject to liability if he makes it”. (Jbid.,
p. 539.) Of course the Court must decide what is “reasonable”.

Judicial experience with the protection of human rights, rights of
the person, are also relevant to the problem of adjudicating upon a
mandatory’s compliance with the obligations of the “sacred trust”. The
Supreme Court of the United States has said that while—

“,.. normally, the widest discretion is allowed the legislative
judgment in determining whether to attack some, rather than ail,
of the manifestations of the evil aimed at; and normally that judg-
ment is given the benefit of every conceivable circumstance which

1 Cf. Lloyd, Public Policy—A}Comparative Study in English and French Law.
1953, pp. 124 ff. and 143 ff.

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might suffice to characterize the classification as reasonable rather
than arbitrary and invidious [State action resulting in racial segre-
gation], even though enacted pursuant to a valid State interest, bears a
heavy burden of justification ... and will be upheld only if it is
necessary, and not merely rationally related, to the accomplishment
of a permissible state policy”. (McLoughlin v. Florida (1964), 379
US. 184, at pp. 191 and 196.)

But the Court has also recently stated in a case holding the Connecticut
birth-control law unconstitutional, that “we do not sit as a super-
legislature to determine the wisdom, need, and propriety of laws that
touch economic problems, business affairs, or social conditions”.
(Griswold v. State of Connecticut (1965), 58 Supreme Court, p. 1678 at
p. 1680.) In the same case, in the joint concurring opinion of Mr. Justice
Goldberg, the Chief Justice and Mr. Justice Brennan, it is said that while
one agrees with Mr. Justice Brandeis that a State “may serve as a labor-
atory; and try novel social and economic experiments” this power does
not include “the power to experiment with the fundamental liberties of
citizens”. Connecticut, the justices held, had not shown that the law
in question serves any “subordinating State interest which is compelling”
or that it is “necessary ... to the accomplishment of a permissible
State policy”.

Two quotations may be added from another field, that of the admin-
istrative discretion of the government in determining measures deemed
necessary to maintain public order, a field which has aspects of com-
parability to the choice of measures by the Mandatory:

“| ,. the Executive is appropriately vested with the discretion to
determine whether an exigency requiring military aid .. . has arisen.
His decision to that effect is conclusive . .. The nature of the power
also necessarily implies that there is a permitted range of honest
judgment as to the measures to be taken in meeting force with
force...

It does not follow from the fact that the Executive has this range of
discretion, deemed to be a necessary incident of his power to suppress
disorder, that every sort of action the Governor may take, no matter
how unjustified by the exigency or subversive of private right and
the jurisdiction of the courts, otherwise available, is conclusively
supported by mere executive fiat. The contrary is well established.
What are the allowable limits of military discretion, and whether
or not they have been overstepped in a particular case, are judicial

1 Cf. views expressed on racial discrimination and the Charter of the U.N. in
Fujii v. State of California 217 Pac. 2d. 488 (1950) and in concurring opinions of
Justices Black, Douglas and Murphy in Oyama v. California, 332 U.S. 633.

435
438 SOUTH WEST AFRICA (DISS. OP. JESSUP)

questions.” (Chief Justice Hughes for the Court in Sterling v. Con-
stantin (1932), 287 U.S. 378.)

In the Lawless case, the European Court of Human Rights (1961)
held that:

“,.. the existence at the time of a ‘public emergency threatening
the life of the nation’ was reasonably deduced by the Irish Govern-
ment from a combination of several factors ...”. (This under
Article 15 of the treaty—the right of derogation.)

The Court obviously had to appraise and pass judgment on the reason-
ableness of the Government’s action.

Examples such as the foregoing and others which could be adduced,
are relevant to a reconsideration of the doubt expressed in the 1962
joint dissenting opinion whether the issues arising under Article 2 (2)
are “capable of objective legal determination”. The problem presented
to the International Court in this case is one of very great consequence
indeed but the judicial task facing the Court, while differing in magnitude,
does not differ in kind from tasks in other courts such as those to which
attention has been called. If the Council of the League had asked the
Permanent Court of International Justice for an advisory opinion on a
question which involved an interpretation of Article 2 (2) of the Mandate,
it does not seem to me credible that the Court would have replied that
the task was beyond its capabilities. The like task which, in my view,
confronted this Court, is not beyond its capabilities. It might be an easy
way out to say that the Mandatory had an unreviewable discretion but
since I believe that that would not be a legally justifiable conclusion I
could not concur in such a judgment.

I would pose a hypothetical situation. Assume that the League of
Nations had not been wound up but continued to exist. Assume that the
Permanent Mandates Commission continued to function with the same
type of expert personnel. Assume that either by receipt of a request
from the Council for an advisory opinion or by an application filed by
a member of the League, the International Court was faced by the
question whether the practice of apartheid in South West Africa in 1960
promoted the progress and welfare, etc., of all the inhabitants. Suppose
the Court acting under Article 50 of the Statute asked the Permanent
Mandates Commission to enquire and give an expert opinion on that
question. I suggest that the Commission would have replied that although
in 1925 they might not have considered the apartheid policy incompatible
with the obligations of the Mandatory under the conditions and circum-
stances of that era, they now believed it was incompatible under the
conditions of 1960. I believe the Court would have decided that this
opinion was well-founded.

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The law can never be oblivious to the changes in life, circumstance and
community standards in which it functions. Treaties—especially multi-
partite treaties of a constitutional or legislative character—cannot have
an absolutely immutable character. As was said in the separate opinion
of Judge Sir Percy Spender in Certain Expenses of the United Nations
(Article 17, paragraph 2, of the Charter) (I.C.J. Reports 1962, p. 151
at 186):

“A general rule is that words used in a treaty should be read as
having the meaning they bore therein when it came into existence.
But this meaning must be consistent with the purposes sought to
be achieved . . . in the case of the Charter . . . the general rule above
stated does not mean that the words in the Charter can only com-
prehend such situations and contingencies and manifestations of
subject-matter as were within the minds of the framers of the
Charter ... No comparable human instrument in 1945 or today
could provide against all the contingencies that the future should
hold.”

Respondent recognized the obligation to adjust to change, although
its argument turned on an unacceptable attempt to distinguish between
the interpretation and the application of a treaty. As stated in the Re-
joinder (Vol. I, p. 150):

“But the nature of the obligation thus interpreted is such that
Respondent must necessarily have regard to changed or changing
circumstances in carrying out the said obligation. In other words, in the
application of the terms of the Mandate to the circumstances of 1960,
a different practical effect may be reached than would have resulted
from a similar application in 1920... the Mandate, whenever inter-
preted, involves a duty on the Mandatory’s part to give consideration
to all relevant circumstances when determining policy, as a necessary
component of its obligation to pursue the prescribed objectives in
good faith. Amongst the circumstances to be thus considered, are
the general philosophical views prevalent in the world, and their
impact on the inhabitants of the Territory.”

The “general philosophical views prevalent in the world” certainly
include the content of Articles 1, 55 and 73, of the Charter of the United
Nations and the world-wide condemnation of apartheid.

In oral argument also, Counsel for Respondent fully recognized the
necessity for taking account in the administration of the Mandate of
changes in the world—although I cannot accept the framework of dis-
cussion of discretionary powers and of good and bad faith in which the
following comments were made:

“We did not say that in the application of the norm to facts the
Court must put on blinkers and look at the facts only as they
existed in 1920, it would obviously have been ridiculous to say so.
Similarly, we did not suggest that, in fulfilling its discretionary

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function under the Mandate of promoting to the utmost, and in
formulating its policies with that purpose in view, the mandatory
was to have regard only to facts, conceptions and attitudes as they
existed in 1920. That would have been equally ludicrous ... the
mandatory could not, in the new circumstances which arose after
the Second World War ... retain the same attitude as in 1920 when
applying the law to the facts, or in formulating policies with a view
to complying with its obligations; it had to take proper cognizance of
this change in attitudes and conceptions, in order to fulfil its dis-
cretionary function properly.”’ (C.R. 65/21, pp. 21-22.)

The “‘sacred trust of civilization” referred to in Article 22 of the
Covenant has as its purpose the development of certain specified peoples
to “stand by themselves under the strenuous conditions of the modern
world”. The “modern world” under whose “strenuous conditions” the
peoples of the Mandate were “not yet [in 1920] able to stand by them-
selves”, is a multi-racial world. It is a world in which States of varied
ethnic composition and of different stages of economic and political
development are now associated in the United Nations on the basis of
“sovereign equality’. (Article 2 (1) of the Charter.) Obviously “the
modern world” is not a static concept and could not have been so con-
sidered by the framers of the Covenant of the League. Even if their
vision of a warless world did not materialize, that is no reason why
covenanted goals which are still attainable should be ignored. As the
Nuremberg Tribunal in its judgment of 1 October 1946 said of another
part of international law in interpreting another great multipartite
convention: “This law is not static but by continual adaptation follows
the needs of a changing world.” (Text in 41 American Journal of Inter-
national Law, 1947, p. 172.) Since 1945 at least, it has been the duty of a
mandatory to prepare the peoples of the mandates to stand by themselves
in this actual world of contemporary reality. As the diversity of States
has increased, so has broadened the duty to train people to stand by
themselves in such diversity. The objective is not fanciful nor illusory;
States formerly under mandate are now members of the United Nations
and are the sovereign equals of the States which formerly administered
them as mandates.

The virtually universally accepted description of other legal charac-
teristics of this actual modern world is written in the Charter of the
United Nations. It is a world in which “friendly relations among nations”
are to be “based on respect for the principle of equal rights and self-

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determination of peoples”, and in which there is to be international
co-operation both in solving international problems “‘of an economic,
social, cultural, or humanitarian character’, and “in promoting and
encouraging respect for human rights and fundamental freedoms for all
without distinction as to race, sex, language or religion”. (Cf. Articles 1,
55, 56, 73 and 76.)

Since, as I have explained, I believe the judicial task of the Court in
interpreting Article 2 of the Mandate, is to be performed by applying
appropriate objective standards—as, in other contexts, courts both
international and national have done—-it is not necessary for me to
enter here into the meaning of a legal “norm” either as the term appears
to have been used in the pleadings in this case, or with one or more of
the connotations to be found in jurisprudential literature !. This section
of the opinion has shown that the standard to be applied by the Court
must be one which takes account of the views and attitudes of the con-
temporary international community. This is not the same problem as
proving the establishment of a rule of customary international law, and
I have already explained that I do not accept Applicants’ alternative
plea which would test the apartheid policy against an assumed rule of
international law (“norm”). It is therefore not necessary to discuss here
whether unanimity is essential to the existence of communis opinio juris.
It has also been plainly stated herein that my conclusion does not rest
upon the thesis that resolutions of the General Assembly have a general
legislative character and by themselves create new rules of law. But the
accumulation of expressions of condemnation of apartheid as reproduced
in the pleadings of Applicants in this case, especially as recorded in the
resolutions of the General Assembly of the United Nations, are proof
of the pertinent contemporary international community standard.
Counsel for Respondent, in another connection, agreed that ‘the effect
of obtaining the agreement of an organization like the United Nations
would, for all practical purposes, be the same as obtaining the consent of
all the members individually, and that would probably be of decisive
practical value”, for the United Nations “represents most of the civilized
States of the world”. (C.R. 65/15, p. 28.) It is equally true that obtaining
the disagreement, the condemnation of the United Nations, is of decisive
practical—and juridical—value in determining the applicable standard.
This Court is bound to take account of such a consensus as providing
the standard to be used in the interpretation of Article 2 of the Mandate.
Today’s Judgment does not ignore humanitarian considerations, or the
“moral ideal” of the sacred trust, but seeks to find where and how they
have been “given juridical expression’ and “clothed in legal form”.
With due respect, I explore these same areas, but find the “juridical
expression” and “legal form” lead to legal conclusions different from
those reached by the Court.

1 See in general, Dillard, “Some Aspects of Law and Diplomacy”, 91 Recueil
des cours, 1957, p. 449.

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442 SOUTH WEST AFRICA (DISS. OP. JESSUP)

Accordingly, it must be concluded that the task of passing upon the
Applicants’ third submission which asserts that the practice of apartheid
is in violation of the Mandatory’s obligations as stated in Article 2 of
the Mandate and Article 22 of the Covenant of the League of Nations,
is a justiciable issue, not just a political question. Therefore, the legal
interest of Applicants in the proper administration of the Mandate, as
set forth in other parts of this opinion, was properly invoked by the
Applications filed on 4 November 1960, and the Court should, in my
opinion, have given judgment on the real merits of the case.

(Signed) Philip C. Jessup.

440