484

DISSENTING OPINION OF SIR LOUIS MBANEFO

The Court in its Judgment finds that the Applicants cannot be con-
sidered to have established any substantive right or legal interest apper-
taining to them in the subject-matter of the present claims and that for
that reason the claims must be rejected. I regret I find myself unable,
for reasons which I shall hereinafter state, to agree with those conclusions
and the motivation behind them.

I hold the view that when the Court has found that the dispute in the
present cases is within the ambit of the compromissory clause, Article 7
(2) of the Mandate, as it did in its 1962 Judgment on the preliminary
objections, the Applicants do not have to show again in order to succeed
that they have individual legal interests in the subject-matter of the
dispute unless their claims are founded on damage or prejudice to such
interests; and secondly, that a general interest in the proper carrying out
of the terms of a multilateral treaty like the Mandate is sufficient legal
interest on which an applicant can found its claim.

The two Applicants, the Government of Ethiopia and the Government
of Liberia, filed two separate but identical Applications against. the
Government of the Union of South Africa as Respondent, in which they
ask the Court to adjudge and declare against the Respondent upon 11
(later reduced to nine in the final submissions) different heads of claims
relating to the Mandate for South West Africa. The claims, as set out
in the Applicants’ final submissions, are reproduced in the Judgment of
the Court and I do not intend to repeat them in full again.

Briefly they ask the Court to adjudge and declare that South West
Africa is a territory under the Mandate, that the Respondent continues
to have the international obligations stated in Article 22 of the Covenant
of the League of Nations and in the Mandate for South West Africa as
well as the obligation to transmit petitions from the inhabitants of the
territory, and that the supervisory functions are to be exercised by the
United Nations to which the annual reports and petitions are to be sub-
mitted. The Applicants further complain that the Respondent—

(a) has practised apartheid and, because of such practice, has failed to
promote to the utmost the material and moral well-being and social
progress of the inhabitants of the territory;

(b) has failed to transmit petitions from the inhabitants of the territory
to the United Nations;

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(c) has failed to submit annual reports to the General Assembly of the
United Nations;

(d) has established military bases within the territory;

{e) has attempted substantially to modify the terms of the Mandate
without the consent of the United Nations.

The Applicants say that these acts and omissions are in violation of the
obligations undertaken by the Respondent as Mandatory under the
Mandate and request the Court to declare that the Respondent has the
duty to observe the terms of the Mandate and to cease doing the acts
complained of.

It has been argued by the Respondent that the Applicants’ final
submissions, in particular Submissions Nos. 3 and 4, amount to a
substantial modification of the Applicants’ original submissions E, F,
G, H and J as set out in their Applications. The Respondent says that
the Applicants’ original submissions made allegations of arbitrary,
inhuman and oppressive measures against the Respondent, and that those
allegations were withdrawn in the final submissions.

Submissions E, F, G, H and I as stated in the Applications read as
follows:

“E. The Union has failed to promote to the utmost the material
and moral well-being and social progress of the inhabitants of the
Territory; its failure to do so is a violation of Article 2 of the Man-
date and Article 22 of the Covenant; and that the Union has the
duty forthwith to take all practicable action to fulfil its duties under
such Articles.

F. The Union, in administering the Territory, has practised
apartheid, i.c. has distinguished as to race, colour, national or
tribal origin in establishing the rights and duties of the inhabitants
of the Territory; that such practice is in violation of Article 2 of the
Mandate and Article 22 of the Covenant; and that the Union
has the duty forthwith to cease the practice of apartheid in the
Territory.

G. The Union, in administering the Territory, has adopted and
applied legislation, regulations, proclamations, and administrative
decrees which are by their terms and in their application, arbitrary,
unreasonable, unjust and detrimental to human dignity; that the
foregoing actions by the Union violate Article 2 of the Mandate and
Article 22 of the Covenant; and that the Union has the duty forthwith
to repeal and not to apply such legislation, regulations, proclamations
and administrative decrees.

H. The Union has adopted and applied legislation, administrative
regulations, and official actions which suppress the rights and liber-
ties of inhabitants of the Territory essential to their orderly evolution
toward self-government, the right to which is implicit in the Cove-
nant of the League of Nations, the terms of the Mandate, and
currently accepted international standards, as embodied in the

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SOUTH WEST AFRICA (DISS. OP. MBANEFO)

Charter of the United Nations and the Declaration of Human
Rights; that the foregoing actions by the Union violate Article 2
of the Mandate and Article 22 of the Covenant; and that the Union
has the duty forthwith to cease and desist from any action which
thwarts the orderly development of self-government in the Territory.

I. The Union has exercised power of administration and legis-
lation over the Territory inconsistent with the international status
of the Territory; that the foregoing action by the Union is in vio-
lation of Article 2 of the Mandate and Article 22 of the Covenant;
that the Union has the duty to refrain from acts of administration
and legislation which are inconsistent with the international status
of the Territory.”

In their final submissions, the Applicants deleted the above five
submissions and substituted Submissions 3 and 4 which read as follows:

(3) Respondent, by laws and regulations, and official methods
and measures, which are set out in the pleadings herein, has practised
apartheid, i.e., has distinguished as to race, colour, national or
tribal origin in establishing the rights and duties of the inhabitants
of the Territory; that such practice is in violation of its obligations
as stated in Article 2 of the Mandate and Article 22 of the Covenant
of the League of Nations; and that Respondent has the duty forth-
with to cease the practice of apartheid in the Territory.

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

The gravamen of the Applicants’ complaint in both sets of submissions
is the practice of apartheid which they say is, by its nature, oppressive,
arbitrary and inhuman, and, therefore, incompatible with the Respon-
dent’s obligations under Article 2, paragraph 2, of the Mandate. That
complaint has not changed and remains the same in the original as well
as in the final submissions.

The facts relied upon by the Applicants in support of their Sub-
missions 3 and 4 are certain laws, regulations and official measures
introduced in the territory by the Respondent which are listed in the

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Applications and amplified in the Memorials. A few of them may be
mentioned here:

(a) The census classification groups the population as “Whites”,
“Natives”, “Coloureds” and “‘Asiatics’. Whites are defined as
persons who in appearance obviously are, or who are generally
accepted as white persons, but excluding persons who although
in appearance are obviously white, are generally accepted as coloured
persons. Natives are persons who in fact are, or who are generally
accepted as members of any aboriginal race or tribe of Africa.
Coloureds are all persons who are neither Whites, Natives nor Asiatics.
Applicants say that rights and burdens are allotted, by Government
policy and actions, on the basis of membership in a racial group
irrespective of individual quality or capacity.

(b) Natives are not entitled to obtain permanent residential rights
or ownership in urban areas in the Police Zone. This restriction
applies to any association, corporate or incorporate, in which a
Native has any interest and relates to rural townships as well as
urban areas.

(c) Probationary leases contain conditions providing for their immediate
cancellation in the event of a lessee marrying a Native or Coloured
person and prohibiting any transfer of the lease to Natives, Asiatics
or Coloured persons.

(d) Within the area of the Police Zone, excluding the Native reserves
and the Rehoboth Gebiet, licences to prospect for minerals may
be issued only to Europeans and European-owned companies.

(e) In all mining enterprises owned by Europeans, Natives may not
occupy any of the following posts: Manager; Assistant, Sectional
or Underground Manager; Mine Overseer; Shift Boss; Ganger;
Person in charge of boilers, engines and machinery; Surveyor;
Engineer; Winding Engine Driver; Banksman or Onsetter.

(f) In the legislation in the territory relating to registration of trade
unions and settlement of individual disputes there is no provision
for the registration of Native trade unions and no provision for
conciliation of disputes in so far as a Native employee is concerned.
The provisions concerning labour disputes and conciliation do not
apply to disputes among or between Native labourers and the
others. A European Inspector represents the interests of Native
employees in proceedings of conciliation boards, the members of
which can be only Europeans or Coloured persons.

485
488
(g)

(h)
(7)

(j)

(k)

(1)

486

SOUTH WEST AFRICA (DISS. OP. MBANEFO)

It is a criminal offence for a Native employee to refuse to commence
service under a contract of service at a stipulated time, to absent
himself from his master’s premises without leave or other lawful cause,
to refuse to obey any order of his master or to leave his master’s
service with intent not to return thereto. An employee charged with
any of the above may on conviction be sentenced to a term of
imprisonment and on release from prison must return to his master’s
service unless the contract of service has been cancelled. If he fails
to do so he may be sentenced to successive periods of further im-
prisonment, provided that no servant may be imprisoned continu-
ously for longer than six months in all.

Only Europeans may enter into contracts of apprenticeship in the
territory.

Only White persons are allowed to vote at an election of members
of the Legislative Assembly. Non-Whites are excluded by law from
serving as members of the Legislative Assembly, the Executive
Committee or of the South African Parliament and excluded by
practice from being appointed as administrators of the territory.
No person other than a European may vote in any municipal
council elections or qualify for election to a municipal council.
According to the Respondent these are political institutions devised
and intended only for the White population group. Native affairs
at local government level are handled through Native Advisory
Boards who possess no legislative or executive powers. Membership
of local government institutions for Natives is shared equally
between Natives and Whites.

An authorized officer may, whenever he has reason to believe that
any Native within an urban or a proclaimed area is an idle person,
without warrant, arrest that Native and cause him to be brought
before a Native Commissioner or Magistrate who shall require the
Native to give a good and satisfactory account of himself and if
the Native fails to do so, to declare him an idle person. If the Magis-
trate declares him an idle person he shall by warrant addressed to
any police officer order that such Native be removed from the urban
or proclaimed area and sent home or to a place indicated by the
Magistrate and that he be detained in custody pending his re-
moval,

No unexempted Native may remain for more than 72 hours in an
urban area unless permission to remain has been granted them by
a designated person.

An unexempted male Native over the age of 14 years is not permitted
to travel beyond his place of residence or employment in the Police
Zone unless he is in possession of a pass issued by an authorized
person {the Police Zone is more than 50 per cent. of the whole
Territory]. The pass must be produced on demand.
489 SOUTH WEST AFRICA (DISS. OP. MBANEFO)

(m) An adult male Native who is not exempted must obtain a pass to
leave the territory for the Republic of South Africa. This provision
does not apply to White or Coloured inhabitants.

(n) Non-White persons working in urban areas in the Police Zone are
restricted to segregated areas in the cities and buses and are not
permitted to reside in what are considered to be “White” areas
save on the premises of their employers in the White residential
areas.

(o) The educational system of the territory is organized in three separate
divisions, and the educational facilities and opportunities are made
available according to whether the child is classified as “European”,
“Coloured” or “Native”. This is in accordance with government
policy of separate development in which the child’s ability is never
taken into account. A consequence of this system is that Native
pupils are restricted to limited vocational training opportunities
intended for members of the Native group. Opportunity for higher
education virtually does not exist for the Native.

These facts and their sources are not in dispute between the Parties.
The Applicants by the amendments say that as a matter of governmental
policy they are, judged by acceptable international norms and/or stan-
dards, in violation of the Respondent’s Mandate obligations. By doing
so the Applicants were introducing a measure by which the conduct of
the Respondent should be jugded. What the amendments have done is
to bring out the essentially legal character of the dispute as one relating
to the interpretation and application of the provisions of the Mandate.
They have not in any material sense altered the basic complaint of the
Applicants which is that the practice of apartheid is discriminatory,
unwarranted, inhuman and, therefore, inherently and per se incompatible
with, and in violation of, Article 2, paragraph 2, of the Mandate. The
obligation of the Mandatory under Article 2, paragraph 2, of the Mandate
to promote to the utmost the material and moral well-being and the
social progress of the inhabitants of the territory is in terms mandatory
and any action of the Respondent with respect to the Territory must be
judged in that light.

I think it convenient to say straight away that I hold the view that the
Applicants have established sufficient legal interest in the subject-matter
of the claim to entitle them, on the evidence before the Court, to succeed
in some, if not all, of the claims; in particular, I hold that the following
claims have on the evidence and the law been established and that the
Court should have pronounced favourably on them:

(a) that South West Africa is a territory under the Mandate assumed
by the Respondent on 17 December 1920;

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(b) that the Respondent continues to have the international obligations
stated in Article 22 of the Covenant of the League of Nations and
in the Mandate for South West Africa;

(e) that the policy of apartheid is inherently incompatible with the
mandate obligations of the Respondent and that the Respondent
by practising apartheid has violated its obligations as stated in
Article 2, paragraph 2, of the Mandate;

(d) that the Respondent is legally bound not to modify or to attempt
to modify or to terminate the Mandate without the consent of the
United Nations;

(e) that the Respondent is accountable to the United Nations for the
proper discharge of its obligations under the Mandate and that the
United Nations has a corresponding right of supervision;

(f) that the Respondent has a legal obligation to report to the United
Nations,

I have stated my conclusions on some of the Applicants’ submissions
without going into the argument urged against or in support of them or
giving my reasons for so finding, because I feel that it is on the basis that
the claims, or some of them, at any rate, are established or are not
unfounded, and in that context, that one can in the merits phase of the
cases legitimately proceed to deal with the question of Applicants’
legal interest and of the applicability of Article 7 (2). Both Parties have
gone into a great deal of trouble and expense to bring all the facts and
arguments relied upon by them before the Court in sittings lasting 100
days and it would have been more rewarding to them if the Court had
stated its views or conclusions on the allegations. As the Court has not
considered these claims I have reserved the reasons for my findings on
them and shall, in this opinion, confine myself to dealing with the points
on which I disagree with the Court’s Judgment.

I feel rather unhappy about the Court’s analysis of the mandates
system. It pays little attention to the ideals of the Mandate and devotes
a disproportionate amount of space to details. The approach, if I may
be permitted to draw an analogy, is like that of an artist who, perhaps
unconsciously, has distorted the appearance of a building by over-
emphasizing details of sections of it. The emphasis, it seems to me,
should be on the appearance and framework and not on the components,
some of which might not be necessary to support or characterize the
building.

In its Judgment the Court begins with two fine but in my view un-
necessary distinctions: firstly, a distinction between the Applicants’
standing in the present phase of the proceedings and their standing
before the Court itself and says that the latter was the subject of the
Court’s decision of 1962. This distinction ignores the fact that the
Applicants’ standing before the Court dealt with in the 1962 Judgment
was in respect of the same dispute which the Court has to decide in the
present phase of the proceedings. The Applicants in respect of that
dispute have no two standings before the Court. The need to establish a

488
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substantive right or legal interest in the merits phase of the case will,
in the circumstances of the present case, arise only if, as a matter of
evidence, it is necessary for proving any item of the Applicants’ claims.
That is not the case here where the Applicants have claimed no damages
and where their request is for a declaratory judgment. The question of
Applicants’ interest was treated by the Parties and by this Court in 1962
as an element of the issue of the capacity of the Applicants to invoke
the compromissory clause in respect of the present dispute. The Court
in the present Judgment, although it says that the question of Applicants’
legal interest is an issue on the merits, deals with it in the context of the
scope and applicability of Article 7 (2)—an approach which relates
more to admissibility than to the merits.

Secondly, the Court draws a distinction between what it terms “con-
duct” and “special interests” provisions of the mandate instrument,
and imports the distinction into its interpretation of Article 7 (2) of the
Mandate. Article 7 (2) is a compromissory clause and does not, as it
stands, permit of any such distinction. To do so, as I shall show later,
is to do violence to the actual words of the text and is in the circumstances
impermissible.

The Court’s interpretation of the Mandate, pursued to its logical
conclusion, leaves the Mandatory without any enforceable obligations
except in relation to Article 5 of the Mandate. It is stated in the Judgment
that it was never contemplated that the Council of the League should
ever impose its views on the Mandatory or that the “conduct” clauses
should be subject to adjudication under the compromissory clause of
Article 7 (2). On that view the Mandatory could become as intransigent
as it wished, and could ignore the decisions of the Council of the League
and even modify the terms of the Mandate without any legal sanction.
The only legal sanction envisaged, according to the Judgment, is in
respect of what it calls “special interests’ provisions. The Respondent
had the right under the Covenant of the League to participate in the
proceedings of the Council of the League, when the latter was dealing
with matters appertaining to the Mandate for South West Africa and
could thus paralyse the proceedings of the Council by the use of its
right of veto. It is no answer to say that this had not happened throughout
the League’s existence. The fact is that it could have happened and, if
it did, the legal consequences would have been, in the Court’s opinion,
as stated in the Judgment. A consequence of the Court’s interpretation,
if all the Council has to do is to use persuasion on the Respondent,
would be to place the Mandate, juridically, on the same plane with
annexation, the very thing that was condemned by the Peace Treaties,
and which the Principal Allied and Associated Powers wished to avoid
by the creation of the Mandates. If the view expressed in the Judgment
was what the Principal Allied and Associated Powers had in mind when
they set up the mandates system and agreed to Article 7 (2) of the
Mandate for South West Africa, then the operation would appear to look

489
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like a form of chicanery practised on mankind in the name of civilization
—a subterfuge “intended to avoid, through its operation, the appearance
of taking enemy territory as spoils of war”. I do not, however, believe
that that was so and, for that reason, I feel I cannot associate myself
with the Court’s interpretation of the Mandate.

This Court in its Advisory Opinion of 1950 on the Status of South
West Africa said of the Mandate (p. 132):

“The terms of this Mandate, as well as the provisions of Article 22
of the Covenant and the principles embodied therein, show that
the creation of this new international institution did not involve
any cession of territory or transfer of sovereignty to the Union
of South Africa. The Union Government was to exercise an inter-
national function of administration on behalf of the League,
with the object of promoting the well-being and development of
the inhabitants.”

And again in 1962 in its Judgment on the preliminary objections the
Court stated (p. 329):

“The essential principles of the Mandates System consist chiefly
in the recognition of certain rights of the peoples of the under-
developed territories; the establishment of a regime of tutelage for
each of such peoples to be exercised by an advanced nation as a
‘Mandatory’ ‘on behalf of the League of Nations’; and the re-
cognition of ‘a sacred trust of civilization’ laid upon the League
as an organized international community and upon its Member
States. This system is dedicated to the avowed object of promoting
the well-being and development of the peoples concerned and is
fortified by setting up safeguards for the protection of their rights.”

J consider the idea of the sacred trust of civilization given juridical
expression in the mandates system and, in particular, in the “conduct”
clauses, more important and more deserving of judicial protection than
the “special interests” of members of the League. Speaking juridically
such concepts as “rights”, “duties” and “obligations” have no meaning
or effect unless they are legally cognizable, and enforceable in a court
of law.

A rigid distinction is drawn in the Judgment between the League and
its members. I do not think that the distinction need be so rigid. The
League is the aggregation of its members and when it takes a decision
it does so on behalf of and in the interest of its members. Strictly speaking
the League vis-a-vis the mandates system should have no interest
different from that of its members.

The League may, in a sense, therefore, be likened to a members’ club
(and here I have in mind the common law concept of such clubs). Any

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493 SOUTH WEST AFRICA (DISS. OP. MBANEFO)

member of a club can sue for the club’s properties and can by appropriate
action restrain the officers of the club from acting contrary to the aims
and purposes of the club. A member can even proceed against an agent
of the club or a third person in order to protect or recover the club’s
property where the officers of the club fail to do so. That, however,
does not mean that the club cannot legally act as a body through its
executive or trustees, or that it has ceased to possess a separate function.
If the analogy of a members’ club is in that limited sense accepted,
I do not see anything extraordinary in the provision of Article 7 (2)
of the Mandate allowing a member of the League to refer to court
any dispute with the Mandatory, whether or not it relates to what the
Court calls the “‘conduct” or “special interests” provisions relating
to the interpretation and application of the provisions of the Mandate,
especially as by Article 34 of the Court’s Statute the League, not being
a State, could not itself be a party to an action in the International
Court. Only States or members of the League could be parties in cases
before the Court.

It is clear both from the Applications and from the submissions
that the Applicants’ claim was of a declaratory nature. The Applicants
have never alleged that they suffered any individual loss or damage and
have not asked the Court to assess any damages in their favour. It
is important to bear this in mind when dealing with the question of
substantive rights or Jegal interest of the Applicants as an issue on the
merits in the present cases.

No issue was raised in the final submissions of the Parties in the
present phase of the proceedings regarding the non-existence of a legal
interest appertaining to the Applicants in the subject-matter of the
dispute. The Applicants in their oral argument regarded the issue of
legal interest as settled by the 1962 Judgment on the preliminary ob-
jections. The Respondent referred to it in Book TI of the Counter-
Memorial, Chapter V, Part B, only in connection with the scope and
purpose of the compromissory clause and in the context of the lapse
of the Mandate as a whole. The argument in support of that thesis was
largely a verbatim repetition of the argument advanced in Chapter V
of its Preliminary Objections in support of its third preliminary objection.
To emphasize that the issue was raised only in the context of the lapse
of the Mandate, the Respondent at the end of Book II of the Counter-
Memorial makes the following submissions:

“For the reasons hereinbefore advanced, supplemented as may be
necessary in later stages of these Proceedings, Respondent, as far
as this portion of its Counter-Memorial is concerned, prays and
requests:

(a) that all of Applicants’ Submissions 1 to 9 be dismissed, on the
ground that the Mandate for South West Africa lapsed in toto
upon dissolution of the League of Nations;

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494 SOUTH WEST AFRICA (DISS. OP. MBANEFO)

(b) alternatively, and in the event of the Honourable Court finding
that the Mandate for South West Africa is still in existence:
that Applicants’ Submissions Nos. 7 and 8 be dismissed, as
well as their Submission No. 2 in so far as it relates to petitions,
annual reports and supervisory functions, on the ground that
Respondent’s former obligations to report and account to,
and to submit to the supervision of, the Council and the
League of Nations, lapsed upon dissolution of the League and
have not been replaced by any similar obligations relative to
supervision by any organ of the United Nations or any other
organization or body.” (Counter-Memorial, Book IT, Chap. VI,
p. 257.)

Likewise in their final submissions, the Respondent raised no issue
as to lack of substantive rights or legal interest of the Applicants in
the subject-matter of the claim. The Parties placed before the Court
in their submissions the basic points of difference—the real issues—
between them for decision. That being so, the question might well be
asked whether it is open to the Court, of its own motion, to raise as a
point for decision on the merits an issue not raised by the Parties in
their final submissions. No reason has been given by the Court in its
Judgment for adopting such a course. This is particularly important
since the question of Applicants’ legal interest is not an issue for decision
upon the evidence required in support of any of the claims in the Appli-
cants’ final submissions. The Respondent has throughout regarded the
question of Applicants’ legal interest as an issue relevant in the context
of the scope and applicability of Article 7 (2) of the Mandate, and as
such an issue of admissibility. It was in that respect that the issue was
raised and decided in the 1962 Judgment.

In the Judgment of the Court in the present phase of the proceedings
it is stated that the issue before the Court in 1962 was essentially one of
the capacity of the Applicants to invoke the jurisdictional clause and
that the only test of capacity predicated by this clause, the only qualifica-
tion required by it to be fulfilled ratione personae, was that the Applicants
should be members of the League. The Court, in my view, went further
than that, as indeed it was required to do by the Respondent’s submis-
sions, and held that the dispute before it was within the ambit of the
jurisdictional clause, ratione materiae. The nature of the dispute appeared
clearly in the Applications and it was on that basis that the Respondent
filed its preliminary objections.

The Applications were filed on 4 November 1960 and were duly served
on the Respondent. On 30 November 1961 within the time-limit fixed for
the formulation of its first pleading, the Respondent filed preliminary
objections. The proceedings on the merits were accordingly suspended
by virtue of the provisions of Article 62, paragraph 3, of the Rules of
Court. The fact that the proceedings were so suspended did not and

492
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could not in my view effect the binding force of the 1962 Judgment
(which has not been challenged) on the issues raised in the submissions
and decided by the Court.

In dealing with the 1962 Judgment it will be helpful to set out in full
the grounds of the Respondent’s preliminary objections as stated in its
final submissions. They were that the Applicants—

‘... have no /ocus standi in these contentious proceedings, and that
the Court has no jurisdiction to hear or adjudicate upon the ques-
tions of law and fact raised in the Applications and Memorials,
more particularly because:

Firstly, by reason of the dissolution of the League of Nations,
the Mandate for South West Africa is no longer a ‘treaty or conven-
tion in force’, within the meaning of Article 37 of the Statute of
the Court, this submission being advanced—

(a) with respect to the said Mandate Agreement as a whole,
including Article 7 thereof, and
(b) in any event, with respect to Article 7 itself;

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;

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;

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 Applicants joined issue with the Respondent on all the points
raised in the submissions.

In dealing with the preliminary objections the Court had two courses
open to it under Article 62, paragraph 5, of the Rules of Court. It
could either give its decision on them or join the objections or any of
them to the merits. The Court chose the first course and gave its decision
on all the objections raised by the Respondent in their submissions.
In doing so it was unavoidable, having regard to the nature of the
objections and the manner in which the Respondent presented its
arguments, that it would touch on points which are also relevant to the
merits of the case, e.g., the survival of the Mandate. In my separate
opinion on the preliminary objections I said that a great deal of the
argument on the first three preliminary objections in the Judgment

493
496 © SOUTH WEST AFRICA (DISS. OP. MBANEFO)

- went to the merits of the case. But the fact that it was so did not detract

- from the effect of the Judgment of the Court on the issues decided.
It only meant that whatever the Court found in that phase of the pro-
ceedings should not prejudice its findings subsequently on any issue
relevant to the merits. The question of Applicants’ legal interest was
raised as an issue of jurisdiction, the submission being that the dispute
was one in which neither the national interest of the Applicants, nor
that of their own nationals was prejudiced, and consequently, that it
was not covered by the compromissory clause of Article 7 (2) of the
Mandate. The Court and the Parties regarded it, as in truth it was,
as an issue of jurisdiction and treated it as such.

On the facts and law before it the Court rejected all the Respondent’s
objections and found that Article 7 (2)—

“... refers to any dispute whatever relating not to any one particular
provision or provisions, but to ‘the provisions’ of the Mandate,
obviously meaning all or any provisions, whether they relate to
substantive obligations of the Mandatory toward the inhabitants
of the Territory or toward the other Members of the League or to
its obligation to submit to supervision by the League under Article 6
or to protection under Article 7 itself. For the manifest scope and
import of the provisions of this Article indicate that the Members
of the League were understood to have a legal right or interest in
the observance by the Mandatory of its obligations both toward the
inhabitants of the Mandated Territory, and toward the League of
Nations and its Members.” (.C.J. Reports 1962, p. 343.)

That was the finding of the Court on the scope and applicability of
Article 7 (2) of the Mandate and remains so today.

It is said in the Judgment of the Court that this is a finding which
goes not to the issue of jurisdiction but to the merits of the case and was
in consequence irrelevant to the decision. The question of jurisdiction
under Article 7 (2) of the Mandate has two aspects; one aspect is the
competence of the Court to hear the case, and the other is the locus standi
of the Applicants, i.e., the capacity of the Applicants to seise the Court
with jurisdiction to decide the dispute before it. Both these matters
were dealt with by the Court in 1962 as issues of jurisdiction. The Court
said in 1962 that with respect to the “dispute” before it the Applicants
had the right to invoke the compromissory clause. Once the Court has
said that, the Applicants would not, in my view, be required to show
further, as a matter of evidence, that they have a substantive right or
legal interest in the subject-matter of the claim. They would be required
to do so only if they were alleging damage or prejudice to their individual
interests. What the Applicants are asking the Court to do is to declare
that on a proper interpretation of certain provisions of the Mandate the

494
497 SOUTH WEST AFRICA (DISS. OP. MBANEFO)

Respondent by its laws, policies and measures has committed breaches
of those provisions. I find myself unable to accept the view that with
respect to the same dispute the Applicants will have the capacity to
bring the dispute before the Court but cannot recover unless they can
show that their substantive rights or legal interests were directly involved
or prejudiced, even though they have not alleged any damage and have
not asked for reparation.

The Judgment of the Court says that in the present cases the dispute
between the Parties relates exclusively to the “conduct” provisions of
the Mandate, and does not relate in any way at all to the “special
interests” provisions. While it is true to say that the practice of apartheid
was the chief complaint of the Applicants, it must be noted that Sub-
mission No. 9 has implications far beyond the “‘conduct” clauses. The
Applicants in Submission No. 9 say that the Respondent has attempted
to modify the terms of the Mandate and that it has no power to do so
without the consent of the United Nations. If that submission should
fail, and should the Court also find that the Respondent has no enforce-
able obligations under the Mandate, outside Article 5, it would follow
that the Respondent could modify even the “special interests” clause of
the Mandate. In the same way the failure or success of Submissions 1, 2
and 6 could have consequences which would materially affect the “special
interests’ of members of the League. The distinction which the Court
tries to draw between the ‘“‘conduct” and the “special interests’’ provisions
would appear, therefore, as a matter of treaty interpretation, to be
illusory in relation to those submissions.

Article 7 (2) is a provision of the Mandate. It gives a member of the
League the right to take the Mandatory to court and places on the
Mandatory the corresponding obligation to accept adjudication. The
Court in its Judgment seeks to restrict this right to be exercised only
in respect of the provisions of Article 5 of the Mandate. The Court,
even on its own line of reasoning, accepts that Article 7 (2) did confer
the right of recourse to court. That right was conferred in respect of
any dispute relating to the interpretation and application of the Mandate.
The Court says that the mandates system being an activity of the League
of Nations, rights cannot be derived from the mere fact of membership
of the organization itself. This rigid distinction between the League and
its members ignores the fact that the League existed because its members
were there to run it and that any rights which States other than the
Mandatory derived from the Mandate sprang from the fact that they
were members of the League. The right to veto given to members of the
Council of the League was precisely to emphasize the individual interests
of members in the working of the system. There is no such water-tight
division between the legal interest of the League and that of its members
in the working of the system. There is in the mandates system a division
of functions but not of interests. The League had identical interests
with its members in the proper working not only of the Mandate but of
the League system as well.

495
498 SOUTH WEST AFRICA (DISS, OP. MBANEFO)

The Court dealing with the 1962 Judgment said that when it decided
that the Mandate had the character of a treaty or convention and was
still in force, this must be understood as a decision concerning the
basis of survival. This, with respect, is an inadequate assessment of the
Judgment. The 1962 Judgment decided more than that. It decided further,
that the articles of the Mandate, in particular Article 7 (2), as part
of that treaty, also survived, was still in force and was applicable to
the present dispute. It was on the basis that Article 7 (2) was in force
and was applicable that the Court held that it had jurisdiction to hear
the present case.

The Respondent in presenting its argument in 1962 did so on the
assumption that the Mandate did in some form survive. It had to take
that line because if the Mandate did survive as a treaty or convention
in force it must also have survived in some form in an objective or
institutional sense since the territory and the Mandatory are still identi-
fiable. The existence of the Mandate as a treaty or convention assumes its
existence as an institution. The issue might arise as to whether all the
obligations in the Mandate were enforceable but that is a different
matter. The fact is that the Mandate could not survive as a treaty or
convention without at the same time surviving in some form as an
institution. The Court in the Advisory Opinion of 1950 said “that the
Union of South Africa continues to have the international obligations
stated in Article 22 of the Covenant of the League of Nations and in the
Mandate for South West Africa . . .”?.

The Respondent in its argument against the survival of the Mandate,
in the merits stage, proceeded on the basis that Article 6 was so essential
to the Mandate that if, because of the dissolution of the League, it
ceased to have any effect, then its disappearance would involve the demise
of the Mandate as a whole;—it would carry to its grave all the other
obligations which legally would have survived with the Mandate. The
distinction between the survival of the Mandate as an institution and
its survival as a treaty or convention is drawn only in the sense of showing
that the Mandate could survive as an institution—as an embodiment
of real rights—even though the treaty creating it could have come to an
end. But the converse has not been shown to be the case, namely that
it could survive as a treaty without at the same time surviving objectively.
If the Mandate survived as a treaty or as an institution, what survived
are the rights and obligations created by the treaty. So that the finding
of the Court that the Mandate survived as a treaty or convention in
force carries with it the implication that the Mandate must have survived
also in an objective or institutional sense. It means that the rights and
obligations created by the Mandate remained enforceable at law.

496
499 SOUTH WEST AFRICA (DISS. OP. MBANEFO)

I have already stated that, in my view, the Applicants have not modi-
fied the claims in their final submissions and consequently that the nature
of the dispute had not altered. The dispute relates to the interpretation
and application of the terms of the Mandate and was therefore well
within the textual ambit of Article 7 (2) of the Mandate.

The words of Article 7 (2) do not admit of any restricted interpretation.
The Article reads:

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

These words were considered by the Permanent Court in the Mavromma-
tis case (Series A, No. 2) and by this Court in its Judgment on the
preliminary objections in the present cases. Both Courts took the view
that the words were wide and include all disputes relating to the inter-
pretation and application of the terms of the Mandate. There is nothing
in Article 7 (2) which limits its application to disputes relating to the
material interests of the Applicants. The Mandate for South West Africa
contains several articles defining the obligations which the Mandatory
owes to the League and its members and those it owes to the inhabitants
of the territory. Of these, only Article 5 contains provisions which may
be said to give members of the League individual rights. Article 5 reads:

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

The Judgment says that the right to invoke the compromissory clause
of Article 7 (2) was given to members of the League specifically to protect
such individual rights as they might possess under Article 5 of the
Mandate. It is said that it is only in respect of these provisions of that
Article that a member of the League could say that its legal interests
were or could be affected. In support of this interpretation, reference
is made to the context in the travaux préparatoires in which clause 7 (2)
came to be introduced. The contention is that Article 7 (2) was introduced
into the Mandate at the same time as the provision for ‘‘special interests”
was discussed and agreed to, and that there was nothing to suggest that

497
500 SOUTH WEST AFRICA (DISS. OP. MBANEFO)

Article 7 (2) was meant to apply to the “‘conduct” clauses. A point of
significance however is that nowhere was it stated that Article 7 (2)
should be so limited in its application. The reference to the travaux
préparatoires is, however, in my view, not justified in the present instance.
It can be justified only as an aid to the plain words of the text or if there
is any ambiguity in the words of Article 7 (2). In the absence of any such
ambiguity it would be wrong for the Court to read into the words of the
text an idea or an intention which would be contrary to the plain terms
of the Article. In the S.S. Wimbledon, Series A, No. 1 (1923), page 24,
the Permanent Court of International Justice recognizing the fact that
Germany had to submit to an important limitation of the exercise of the
sovereign rights which she possessed over the Kiel Canal, said:

“this fact constitutes a sufficient reason for the restrictive inter-
pretation, in case of doubt of the clause which produces such a
limitation. But the Court feels obliged to stop at the point where the
so-called restrictive interpretation would be contrary to the plain
terms of the article and would destroy what had been clearly
granted.” (Italics added.)

In the S.S. Lotus, Series A, No. 10 (1927), the French Government
sought to interpret the phrase ‘‘principles of international Jaw’? which
appears in Article 15 of the Convention of Lausanne of 24 July 1923,
in the light of an amendment which Turkey had tried to introduce in
the Drafting Committee. The French and Italian representatives had
reservations on the amendment but the British definitely rejected it.
The Drafting Committee confined itself to a declaration to the effect
that all questions of jurisdiction should “be decided in accordance
with the principles of international law’. The French Government
sought to use the proposed amendment as indicating the intentions
which guided the Drafting Committee when it used the phrase “all
questions of jurisdiction shall, as between Turkey and the other con-
tracting Powers, be decided in accordance with the principles of inter-
national law’, and maintained that the meaning of the expression
“principles of international law”, should be sought in the light of the
evolution of the Convention. The Permanent Court of International
Justice in dealing with the French contention recalled what it had said
in some preceding judgments and opinions, namely “that there is no
occasion to have regard to preparatory work if the text of a convention
is sufficiently clear in itself.”

In the Memel case, Series A/B, No. 47, page 249, the Permanent Court
of International Justice also said:

“As regards the arguments based on the history of the text, the
Court must first of all point out that, as it has constantly held, the

498
501 SOUTH WEST AFRICA (DISS. OP. MBANEFO)

preparatory work cannot be adduced to interpret a text which is,
in itself, sufficiently clear.”

In the Advisory Opinion on the Competence of the General Assembly
for the Admission of a State to the United Nations (I.C.J. Reports 1950,
p. 8) this Court said:

“The Court considers it necessary to say that the first duty of a
tribunal which is called upon to interpret and to apply the provisions
of a treaty, is to endeavour to give effect to them in their natural
and ordinary meaning in the context in which they occur. If the
relevant words in their natural and ordinary meaning make sense
in their context, that is the end of the matter.”

On the ground that the text of Article 7 (2) is clear, it is not in my
view necessary to have recourse to the travaux préparatoires in inter-
preting it. It may be said that in spite of the views expressed above, the
courts have in most cases had recourse to travaux préparatoires in
interpreting provisions of treaties, but where they have done so the
purpose has been to support rather than contradict the plain words of
the text.

The Mandate was an attempt by the members of the League of Nations
to introduce a new concept in international law. The Mandate, as this
Court has said in its Advisory Opinion on the International Status of
South West Africa (I.C.J. Reports 1950) and in the 1962 Judgment,
created a new régime in international law. All the members of the League
had an interest in the proper working of this new experiment. The
political or humanitarian interest of members of the League proclaimed
in paragraph 1 of Article 22 of the Covenant was, as the Court has
stressed in its Judgment, given legal character by the other provisions
of that Article and, with respect to South West Africa, the mandate
instrument under consideration. By agreeing or subscribing to these
provisions each member of the League manifested an interest in the
proper working of the scheme and in the fulfilment of its ultimate
purpose, and that notwithstanding that its individual interest may not
be involved. Each member has therefore an interest in seeing that the
provisions of the Mandate are properly observed and carried out by the
Mandatory.

This Court in its Advisory Opinion in 1950 said, at page 133:

“The essentially international character of the functions which
had been entrusted to the Union of South Africa ... appears from
the fact that any Member of the League could, according to Art-
icle 7 of the Mandate, submit to the Permanent Court of Inter-
national Justice any dispute with the Union Government relating
to the interpretation or the application of the provisions of the
Mandate.”

In the same Advisory Opinion, Sir Arnold McNair in his separate
opinion said:
“Although there is no longer any League to supervise the exercise
499
502 SOUTH WEST AFRICA (DISS. OP. MBANEFO)

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 Applicants in their Applications and in their Memorials state
that they have a legal interest in the proper administration of the Man-
date. The Judgment of the Court does not deny that they have an interest
but says that it is political or humanitarian and not legal.

The right of a State to bring an action for the protection of a common
interest has been recognized in international law. Rosenne, at page 520
of The Law and Practice of the International Court states:

“Another form of legal interest which it is believed is recognized
automatically is that which is based upon participation by the
applicant State in a treaty to which the respondent State is also a
party, at all events so long as the treaty is still in force ... where
such a treaty contains a compromissory clause, the jurisdiction
may be invoked in accordance with that clause even if material
interests of a concrete character cannot be shown by the applicant
State... This principle, which appears to be incontestable, is leading
to two developments. The first is recognition of a treaty situation
in which the contesting States do not have any interests of their
own but a common interest, the accomplishment of the purpose
of the convention. Any party to such a treaty has a legal interest
sufficient to entitle it to invoke the compromissory clause against
any other party.”

The right to invoke the compromissory clause against a party implies
or includes the right to recover on the claim if the evidence justifies it.
The Applicant in such a case does not have to establish damage or
prejudice ‘to its material interests in order to succeed, unless it was
claiming damages. All it needs to prove is that it belongs to the class of
States to whom the right to bring the action is given in the compromissory
clause.

The principle of common interest in the execution of a multilateral
treaty was recognized by the Permanent Court of International Justice
in the S.S. Wimbledon, Series A, Judgment No. 1, where it was stated that
the Court could take cognizance of the suit in spite of the fact that the
Applicants could not all adduce a prejudice to some pecuniary interest;
for they had a “clear interest in the execution of the provisions [of the
Treaty of Versailles] relating to the Kiel Canal, since they all possess
fleets and merchant vessels flying their respective flags”.

The similarity of the position in the S.S. Wimbledon vis-a-vis those
States parties to the treaty that cannot adduce a prejudice to some
pecuniary interest and the instant cases is clear, and it is not destroyed
by saying that those States owned ships and could conceivably find

500
503 SOUTH WEST AFRICA (DISS. OP. MBANEFO)

themselves in the position that France was in in that case. In this con-
nection it may be mentioned, although that point has not been taken up
in the arguments that the apartheid residential laws of the Respondent
in the mandated territory of South West Africa would adversely affect
the freedom of movement of any nationals of the Applicant States who,
not being “Whites” within the census classification of South West Africa,
may choose to go there in the exercise of the rights given to nationals
of members of the League under Article 5 of the Mandate in the same
way as they affect the “Natives” of the territory. ‘Natives’ by the
census classification, as has been noted above, are persons who in fact
are, or who are generally accepted as members of any aboriginal race or
tribe of Africa.

Under the segregation laws Natives can only live in areas set apart
for them. Natives living on land reserved for “European” owned
commercial firms at the time of its allocation may be required under
the land settlement laws either to move or to work for the “European”
firm. A Native missionary from any of the Applicant States will not
enjoy the same or equal right of residence within the territory as a White
missionary. He will be subject to all the apartheid discriminatory laws.
The Minister of Native Affairs has certain powers over ‘‘Natives”’ (in-
cluding “Native” missionaries) which he does not have over “White”
missionaries. It is appreciated that no issue has been raised about
missionaries, if any, from Applicant States, but the question whether
or not the Mandate survives or can unilaterally be modified, which are
some of the issues for decision on the Applicants’ claims, can have
consequences which are likely to affect the rights of nationals of the
Applicant States going to the territory to exercise any of the rights
allowed them under Article 5 of the Mandate. But that notwithstanding,
the Applicants as members of the League have severally an interest in
the proper carrying out of the terms of the Mandate by the Respondent.

In the Advisory Opinion on Reservations to the Genocide Convention
(LC.J. Reports 1951, p. 23), this Court, dealing with the special charac-
teristics of the Genocide Convention, said:

“The origins and character of that Convention, the objects pursued
by the General Assembly and the contracting parties, the relations
which exist between the provisions of the Convention, inter se, and
between those provisions and these objects, furnish elements of
interpretation of the will of the General Assembly and the parties.

501
504 SOUTH WEST AFRICA (DISS. OP. MBANEFO)

The objects of such a convention must also be considered. The
Convention was manifestly adopted for a purely humanitarian and
civilizing purpose. It is indeed difficult to imagine a convention
that might have this dual character to a greater degree, since its
object on the one hand is to safeguard the very existence of certain
human groups and on the other to confirm and endorse the most
elementary principles of morality. In such a convention the con-
tracting States do not have any interest of their own; they merely
have, one and all, a common interest, namely the accomplishment
of those high purposes which are the raison d’étre of the Convention.
Consequently, in a convention of this type one cannot speak of
individual advantages or disadvantages to States, or of the mainten-
ance 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.”

The same principle was also stated by C. Wilfred Jenks in his book
The Prospects of International Adjudication at page 524, in the following
passage:

“Speaking more generally, every party to a treaty has at least a
potential legal interest in any breach of its provisions, and any
breach of a rule of international law . .. prejudices at least poten-
tially, the rights of all other subjects of international law or ... of
all subjects of the law who may be affected by it. Remoteness of
interest may limit any reparation due but is unlikely to destroy the
legal interest which is the source of liability for, as the Mavrommatis
Palestine Concessions (Merits) case shows, the existence of a legal
interest does not, in international law, depend on the actual suffrance
of damage.”

Enough has been said to show that there is support in international
law that a State can have a legal interest in the prosecution of a common
interest the subject-matter of a multilateral treaty like the Covenant of
the League of Nations to which that State is a party.

The idea of the Mandate was in 1920 a new one and it would be a
denial of its very purpose to say that when Article 7 (2) was drafted
and accepted by members of the League, those founder-fathers were
thinking only. of the commercial or missionary interests of their nationals
and not the main purpose of the Mandate also.

It has been said that nowhere in the Mandate was it stated that
members of the League should have the right of protecting the Mandate.
The answer is that it does not need to be so stated. The existence of such
a right is inherent in the very act of creating the Mandate on behalf of
the League and Article 7 (2) emphasizes the existence of such a right in
the members of the League. It seems to me that this is a logical reason

502
505 SOUTH WEST AFRICA (DISS. OP. MBANEFO)

for drafting Article 7 (2) in such wide terms. Article 7 (2) of the Mandate
as a provision of the Mandate should be interpreted in a manner to
ensure the purpose of the Mandate. To do otherwise would be to corrupt
both the letter and the spirit of the Article.

The members of the League have, by virtue of their membership, a
common interest in the proper exercise of the Mandate. That interest
is a legal one and in the light of Article 7 (2) gives each member the
right to take a delinquent Mandatory to court.

The Applicants are asking the Court to declare that certain actions
of the Respondent as listed in the Memorials and in the oral hearings
amount to a breach of the obligations of the Respondent as Mandatory
under the Mandate. Assuming that the League was still in existence
and a situation was reached as is the case now, where the Respondent
was bent on pursuing policies which the overwhelming majority of
members of the League felt were out of line with its mandate obligations,
at the same time maintaining that its policies were not in breach of the
mandate provisions and would not agree to change them or agree to
any compromise solution, how was the difference to be resolved? The
Judgment says that the Mandate provides no remedy for such a situation
and that is was a risk the League members took with their eyes wide
open. It seems to me that it was to meet such a situation that Article 7 (2)
was introduced. The League itself cannot invoke the compromissory
clause and I see nothing incompatible with Article 7 (2) in any member
of the League who wished to carry the burden, making the difference
or dispute its own and invoking the compromissory clause in order to
ensure due compliance with the terms of the Mandate. To invoke the
clause in such circumstances does not and cannot destroy the character
of the League nor that of the Mandate. On the contrary, it would be in
keeping with its duty as a member of the League to do so for the safe-
guarding of the sacred trust to which it had subscribed.

(Signed) Louis MBANEFO.

503


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING QUESTIONS OF
INTERPRETATION AND APPLICATION OF
THE 1971 MONTREAL CONVENTION ARISING
FROM THE AERIAL INCIDENT
AT LOCKERBIE

(LIBYAN ARAB JAMAHIRIYA v. UNITED STATES
OF AMERICA)

ORDER OF 22 SEPTEMBER 1995

1995

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A DES QUESTIONS
D'INTERPRÉTATION ET D’APPLICATION
DE LA CONVENTION DE MONTREAL DE 1971
RESULTANT DE L’INCIDENT AERIEN
DE LOCKERBIE

(JAMAHIRIYA ARABE LIBYENNE c. ETATS-UNIS
D’AMERIQUE)

ORDONNANCE DU 22 SEPTEMBRE 1995
Official citation:

Questions of Interpretation and Application of the 1971 Montreal Conven-

tion arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya

v. United States of America), Order of 22 September 1995, I C.J. Reports
1995, p. 285

Mode officiel de citation:

Questions d'interprétation et d'application de la convention de Montréal

de 1971 résultant de l'incident aérien de Lockerbie (Jamahiriya arabe

libyenne c. Etats-Unis d'Amérique), ordonnance du 22 septembre 1995,
C.I.J. Recueil 1995, p. 285

Sales number
ISSN 0074-4441 N° de vente: 665

ISBN 92-1-070728-1

285

INTERNATIONAL COURT OF JUSTICE

1995 YEAR 1995
22 September
General List
No. 89 22 September 1995

CASE CONCERNING QUESTIONS OF
INTERPRETATION AND APPLICATION OF
THE 1971 MONTREAL CONVENTION ARISING
FROM THE AERIAL INCIDENT
AT LOCKERBIE

(LIBYAN ARAB JAMAHIRIYA vy. UNITED STATES
OF AMERICA)

ORDER

Present: President BEDIAOUI; Vice-President SCHWEBEL; Judges ODA,
GUILLAUME, SHAHABUDDEEN, WEERAMANTRY,  RANIJEVA,
HERCZEGH, SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN,
FERRARI BRAVO; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Article 48 of the Statute of the Court and to Ar-
ticles 31 and 79 of the Rules of Court,

Having regard to the Order of 19 June 1992 whereby the Court fixed
20 December 1993 and 20 June 1995 as the time-limits for the filing,
respectively, of a Memorial of the Libyan Arab Jamahiriya and of a
Counter-Memorial of the United States of America;

Whereas on 20 June 1995 the United States of America filed certain

preliminary objections requesting the Court to adjudge and declare that
it lacks jurisdiction and cannot entertain the case;

4
286 1971 MONTREAL CONVENTION (ORDER 22 IX 95)

Whereas accordingly, by virtue of Article 79, paragraph 3, of the
Rules of Court, the proceedings on the merits are suspended and a time-
limit has to be fixed for the presentation by the other Party of a written
statement of its observations and submissions on the preliminary objec-
tions;

Whereas at a meeting between the President of the Court and the
Agents of the Parties, held on 9 September 1995, the Libyan Arab
Jamahiriya requested that a time-limit of three months be fixed for the
presentation of that written statement, and whereas the United States of
America agreed ;

Having taken into account the views of the Parties,
Fixes 22 December 1995 as the time-limit within which the Libyan
Arab Jamahiriya may present a written statement of its observations

and submissions on the preliminary objections raised by the United
States of America; and

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twenty-second day of September, one
thousand nine hundred and ninety-five, in three copies, one of which will
be placed in the archives of the Court and the others transmitted to the
Government of the Socialist People’s Libyan Arab Jamahiriya and the
Government of the United States of America, respectively.

(Signed) Mohammed BEDJAOUI,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

NUCLEAR TESTS CASE
(AUSTRALIA v. FRANCE)

ORDER OF 28 AUGUST 1973

1973

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DES ESSAIS NUCLÉAIRES
(AUSTRALIE c. FRANCE)

ORDONNANCE DU 28 AOÛT 1973
Official citation:

Nuclear Tests (Australia v. France), Order of 28 August 1973,
LC.J. Reports 1973, p. 338.

Mode officiel de citation:

Essais nucléaires ( Australie c. France), ordonnance du 28 août 1973,
C.J. Recueil 1973, p. 338.

Node rentes JO 7

28 AUGUST 1973

ORDER
NUCLEAR TESTS CASE
(AUSTRALIA v. FRANCE)
AFFAIRE DES ESSAIS NUCLEAIRES
(AUSTRALIE c. FRANCE)
28 AOÛT 1973

ORDONNANCE
338

INTERNATIONAL COURT OF JUSTICE

1973
28 August YEAR 1973

General List
No. 58

28 August 1973

NUCLEAR TESTS CASE
(AUSTRALIA v. FRANCE)

ORDER

The President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court and to Article 40
of the Rules of Court,

Having regard to the Order of 22 June 1973 by which the Court (inter
alia) fixed 21 September 1973 as time-limit for the Memorial of the Govern-
ment of Australia and 21 December 1973 as time-limit for the Counter-
Memorial of the French Government on the questions of the jurisdiction of
the Court to entertain the dispute and of the admissibility of the Appli-
cation,

Whereas, by a letter dated 10 August 1973, the Co-Agent of Australia,

for the reasons therein set out, requested the extension of the time-limit
for the filing of the Memorial to 21 December 1973;

Whereas, by a further letter dated 13 August 1973, the Co-Agent of
Australia indicated that an extension of the time-limit for the filing of the
Memorial to 23 November 1973 would suffice;

Whereas copies of the said letters were transmitted to the French Gov-
ernment which was invited to communicate its views to the Court;

Whereas by an oral communication of 23 August 1973, confirmed by
letter the same day, from the Chargé d’affaires ad interim of France in the

4
339 NUCLEAR TESTS (ORDER 28 VIII 73)

Netherlands, the French Government has stated that, having disclaimed
the jurisdiction of the Court in the case, it cannot express any view on the
request of the Government of Australia;

Extends to 23 November 1973 the time-limit for the filing of the
Memorial of the Government of Australia;

Extends to 19 April 1974 the time-limit for the filing of the Counter-
Memorial of the French Government;

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twenty-eighth day of August, one
thousand nine hundred and seventy-three, in three copies, one of which
will be placed in the archives of the Court and the others transmitted to
the Government of Australia and to the French Government respectively.

(Signed) Manfred LAcus,
President.

(Signed) S. AQUARONE,
Registrar.