465

JOINT DISSENTING OPINION OF SIR PERCY
SPENDER AND SIR GERALD FITZMAURICE

I

Since we find ourselves unable to concur in the decision of the
Court, it is necessary that we should state the reasons for our
dissent.

The case is one of special importance. It involves not only a
fundamental question of judicial approach; it is as well one which
presents quite exceptional difficulties—a fact reflected by the
narrow majority on which the decision rests.

These difficulties are not merely technical, though these exist.
They spring rather from the fact that the case belongs to a type
the outcome of which is liable to be dominated, or at least strongly
influenced, by the character of the initial approach to it.

In order to assume jurisdiction, the Court had not only to reject
all the objections formally presented by the Respondent but also
certain others. These we shall mention in due course.

The Court has, in our opinion, only been able do this by adopting
premises which, as will emerge from what we have to say, largely
- assume beforehand the correctness of the conclusions arrived at.

The general approach adopted by the majority of the Court
in the present case can, we think, reasonably, be described as
follows—namely that it is desirable and right that a provision
for the compulsory adjudication of certain disputes, which figures
(or did figure) as part of an institution—the Mandate for South
West Africa—which is still in existence as an institution, should
not be held to have become inoperative merely on account of a
change of circumstances—provided that this change has not
affected the physical possibility of continued performance. The
present Court exists, and is of the same general character and
carries out the same kind of functions as the tribunal (the former
Permanent Court) which originally had jurisdiction under this
provision (1.e. Article 7 of the Mandate for South West Africa).
Since there still exist States (and amongst them the Applicant
States) who would have been entitled to invoke Article 7 before
the changed circumstances came about, this Article must now be
interpreted as still giving them this right, notwithstanding anything

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to the contrary in its actual terms, or resulting from any other
relevant factor.

It is evident that once a tribunal has adopted an approach ot
this nature, its main task will be to discover reasons for rejecting the
various objections or contra-indications that may exist, or arise.

We have felt unable to adopt this approach. In our opinion, the
only correct method of procedure is to begin by an examination
of the legal elements, with especial reference, where questions of
interpretation are concerned, to the actual language employed,
and then, on the basis of this examination, to consider what are
the correct conclusions which, as a matter of law, should be drawn
from them. It is in this spirit that we have approached our task.

*
* *

We are not unmindful of, nor are we insensible to, the various
considerations of a non-juridical character, social, humanitarian
and other, which underlie this case; but these are matters for the
political rather than for the legal arena. They cannot be allowed to
deflect us from our duty of reaching a conclusion strictly on the basis
of what we believe to be the correct legal view. They do however
lead us to draw attention to another aspect of the matter.

A Court called upon to consider objections to its jurisdiction
must exclude from consideration all questions relating to the
merits of the dispute, unless the jurisdictional issues are so inter-
twined with the merits that they cannot be considered separately,
and must be joined to the merits. 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 jurisdic-
tion of any tribunal, namely whether the issues arising on the merits
are such as to be capable of objective legal determination.

It is apparent from the Memorials in the present case, that what
the Court will principally be asked to decide on the merits is whether,
in a number of different respects, the Respondent State, as Manda-
tory, is in breach of its obligation under Article 2 of the Mandate to
“promote to its utmost the material and moral well-being and the
social progress of the inhabitants of the territory...”. There is
hardly a word in this sentence which has not now become loaded
with a variety of overtones and associations. There is hardly a
term which would not require prior objective definition, or re-
definition, before it could justifiably be applied to the determination
of a concrete legal issue. There is hardly a term which could not be
applied in widely different ways to the same situation or set of facts,
according to differing subjective views as to what it meant, or

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ought to mean in the context; and it is a foregone conclusion that,
in the absence of objective criteria, a large element of subjectivity
must enter into any attempt to apply these terms to the facts of
a given case. They involve questions of appreciation rather than
of objective determination. As at present advised we have serious
misgivings as to the legal basis on which the necessary objective
criteria can be founded.

The proper forum for the appreciation and application of a
provision of this kind is unquestionably a technical or political
one, such as (formerly) the Permanent Mandates Commission, or
the Council of the League of Nations—or today (as regards Trustee-
ships), the Trusteeship Council and the Assembly of the United
Nations. But the fact that, in present circumstances, such technical
or political control cannot in practice be exercised in respect of the
Mandate for South-West Africa, is not a ground for asking a Court
of law to discharge a task which, in the final analysis, hardly appears
to be a judicial one.

The above considerations, in our opinion, strongly reinforce
the view which, on other grounds, we have taken as to the third
preliminary objection, namely that disputes about the conduct of
the Mandate in relation to the ‘sacred trust” (as opposed to dis-
putes about the individual statal interests of the Members of the
League under the terms of the Mandate) are not the kind of disputes
to which the compulsory adjudication clause of the Mandate was
intended to, or did, apply.

+
* *

We now turn to the substance of the case in its present phase,
which involves the question of the competence of the Court to
proceed to the merits; and by way of introduction we would say
that our conclusions in this phase have been reached against the
background of four major principles of law which we believe to
be fundamental to any determination of the issues involved.
They are:

1. The principle of consent as the essential condition for
founding international jurisdiction. Such consent may be given
generally, in advance, or ad hoc, and may in a proper case be
held to have been given. But that it was in fact given, and that
it covers the actual case before the Court, must be objectively
demonstrated, and cannot simply be presumed.

2. The principle that rights conferred on or vested in persons
or entities in a specified capacity, or as members of a specified

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class, are not conferred on or vested in them in their personal
or individual capacity, and therefore cease to be available to
them if they lose the specified capactiy, or cease to be members
of the indicated class; and are equally not available to them in a
different capacity, or as members of another class.

3. The principle that provisions are prima facie to be inter-
preted and applied according to their terms, where these are
clear and unambiguous in their expression of the intention of
the parties, and that such terms can only be ignored or overridden
(if at all) on the basis of some demonstrably applicable legal
principle of superior authority. The principle of interpreta-
tion directed to giving provisions their maximum effect cannot
legitimately be employed in order to introduce what would
amount to a revision of those provisions.

4. The principle that a Court of law cannot correct the past
errors or omissions of the parties, and that it is not the province
of a Court to place some of the parties in the same position as they
would have been in if they had taken action they could have
taken, but did not take, and even deliberately avoided taking.

In our opinion, the judgment of the Court fails to give expression
to these principles, either ignoring them or advancing no adequate
grounds for departing from them—as in our view it clearly does.
In the Anglo-Saxon legal tradition there is a well-known saying
that “hard cases make bad law’’, which might be paraphrased
to the effect that the end however good in itself does not justify the
means, where the means, considered as legal means, are of such
a character as to be inadmissible.

It is because of the foregoing considerations, and as Members of
a Court whose task it is under Article 38, paragraph 1, of its Statute,
“to decide in accordance with international law’, that we are
unable to accept the reasoning on which the Judgment of Court is
based.

IJ
STATEMENT OF THE ISSUES INVOLVED

Although the issues now involved are stated in the Judgment,
their real character is not we think sufficiently brought out there,
and we propose briefly to re-state them in our own way.

The jurisdiction of the Court is fundamentally derived from
Article 36, paragraph 1, of the Statute of the Court, which en-

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ables the Court to hear any cases referred to it by the parties
[i.e. jointly] or any cases “‘specially provided for ... in treaties or
conventions in force”. But whether in any particular case that
jurisdiction can be exercised compulsorily depends on factors lying
outside this provision—for instance the existence of a Declaration
under paragraph 2 of Article 36 (the “Optional Clause”) or the terms
of a provision for compulsory adjudication by the Court contained
in some treaty or convention in force. It is for this reason that the
Applicant States have invoked the jurisdiction of the Court on the
basis of the combined effect of Article 7 of the Mandate for South
West Africa and of Article 37 of the Statute of the Court. The reason
for citing the latter provision, which is really mechanistic in
character, is that the original forum for the settlement of disputes
arising under Article 7 of the Mandate was the predecessor of the
present Court, the former Permanent Court of International Justice,
which ceased to exist in 1946. This latter Court was equally the
forum specified in the adjudication clauses of many other inter-
national instruments. In our view, the effect of Article 37 of the
Statute of the present Court—and its sole relevant effect in the
context of this case—-was (as between the parties to the Statute)
to substitute the present Court for the former Permanent Court in
all cases in which under a “treaty or convention in force”, the Per-
manent Court would have had jurisdiction and would have been
competent to hear and determine the case. Its relevant portions
read as follows:

“Whenever a treaty or convention in force provides for reference
of a matter to ... the Permanent Court of International Justice, the
matter shall, as between the parties to the present Statute, be
referred to the International Court of Justice.”

We draw attention to the similarity of wording between this
provision and Article 36, paragraph 1, of the Statute, in so far as
each relates to treaties and conventions in force. This has a sig-
nificance we shall mention later.

It is, however, clear that, whatever may be the correct inter-
pretation to be given to the phrase ‘‘a treaty or convention in force”,
Article 37 can, on the face of it, only apply to adjudication clauses
contained in instruments which are in law treaties or conventions,
and which also are as such, i.e. as treaties or conventions, “in
force”. Only in the case of clauses figuring in instruments fulfilling
these conditions is the present Court substituted for the former
Permanent Court.

The first contention of the Respondent State is that the relevant
instrument—the Mandate for South West Africa—-does not fulfil
either of these conditions, that it neither has the character of a
treaty or convention nor, if it has, is it any longer in force.

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It is evident, in any case, that Article 37, however applicable
it may otherwise be, does not and could not, standing alone,
confer jurisdiction on the Court, for on the face of it, it only ap-
plies to cases in which the Permanent Court would have had
jurisdiction. To ascertain whether this would have been so in
the present case, reference must accordingly be made to the
clause which is invoked by the Applicant States as being the
one which provided for recourse to the Permanent Court, namely
Article 7 of the Mandate for South West Africa. The relevant
parts of this provision read as follows:

“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, shall be submitted to the Permanent Court of Inter-
national Justice...”

This provision clearly conditions the obligation in three, or perhaps
four, ways: there must be a “dispute”; this dispute must arise
between the Mandatory and “another Member of the League of
Nations”; it must relate to “the interpretation or ... application of
the provisions of the Mandate’; and, finally, it must be such as
“cannot be settled by negotiation”. We stress the word “cannot”,

The issues arising out of these conditions—whether as actually
formulated by the Respondent State, or as being inherent in the
terminology of Article 7 (stated in the order in which it will be
convenient to deal with them)—are as follows:

1. If there is a dispute, is it a dispute between the Mandatory and
“another Member of the League of Nations’’—or in other words
have the Applicant States the capacity to invoke Article 7?

2. If the Applicants have such capacity, is there really any ge-
nuine dispute at all between them, as such, and the Respondent
State—and what ought to be understood by a dispute for this
purpose ;—for instance (inter alia) are the Applicants, as parties to
the present proceedings, also parties to the real dispute which
exists ?

3. If the Applicants are not only the parties to these proceedings,
but also the parties to the dispute with the Respondent State, is
this dispute of the kind to which Article 7 relates?

4. Have there been any negotiations at all, properly speaking,
with a view to settling the particular dispute between the Applicants
and the Respondent ? |

5. Can it be held that the dispute ‘‘cannot”” be settled by negotia-
tion ?

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We shall consider the various issues that arise in the following
order:

Firsi—the two issues arising on Article 37 of the Statute: is there
a “treaty or convention”, and if so, is it ‘‘in force’. as such?

Secondly—the primary question arising on Article 7 of the Man-
date, namely have the Applicant States the capacity to invoke it?

Thirdly—the various issues about the existence of a dispute,
genuinely between the Applicants as such and the Respondent,
and if there is one, as to its character in relation to Article 7.

Fourthly—the various issues about negotiation—-has there been
any negotiation of the kind contemplated by Article 7, and if so
can the conclusion be drawn that the dispute “cannot” be settled
by negotiation ?

These four issues or classes of issues correspond broadly, though
not identically, with the four specific preliminary objections to the
jurisdiction of the Court raised by the Respondent State.

Before we deal with them, however, we find it necessary to say
something about the relevance to these issues and objections, of the
Advisory Opinion about the status of the Mandate for South West
Africa, and related matters, which the Court gave on 11 July 1950.

Til

THE ADVISORY OPINION GIVEN BY THE COURT IN 1950

_We are most reluctant to devote any space to the 1950 Opinion,
as we shall call it !. We believe that Opinion was wrong in one or
two important aspects, but by no means in all. But this belief
has not affected our views in the present case, because we think
that different issues are now involved. We are compelled to make
this clear because, in the first place, the Judgment of the Court is
partly founded on the 1950 Opinion; and secondly, the relevance of
that Opinion was much debated in the arguments of the Parties to
the present proceedings. The Applicants maintained both that the
1950 Opinion was correct in all respects and that (though not on
any basis of res judicata) it completely and automatically governed
the issues arising in the present proceedings. The Respondent State

1 This Opinion of the Court, on the first specific question submitted to it, is
divisible into three parts: that which deals with Articles 2 to 5 of the Mandate,
that which deals with Article 6, and that which deals with Article 7. Its reasoning
on each of these two latter articles appears to rest upon quite separate and
distinct grounds.

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denied this and also adduced material claimed to be new and such
as, had it been available in 1950, would have caused the Court to
find differently. The Applicants, in reply, denied both that the ma-
terial was new, or that it would have had any influence on the views
of the Court.

We regard most of this discussion as having been misplaced.
Some of the issues now arising (those connected with the third
and fourth preliminary objections) did not arise at all, and could
not have arisen, in the course of the 1950 proceedings, which were
not, as these are, contentious proceedings. As regards one of the
central issues arising in 1950, namely that of the status of the Man-
date as an international institution, the Court in 1950 did little more
than find, on various grounds, that the dissolution of the League of
Nations had not caused the Mandate to lapse, and that despite this
dissolution, the Mandate was still in force. But the Court did not
specifically address itself to the question of the basis upon which the
Mandate was in force nor, in particular, to whether it was still in
force as a treaty or convention. In the dispositive of its 1950 Opinion,
the Court did no more, in relation to the present context, than state
that by reason of Article 37 of the Statute, the present Court was
substituted for the former Permanent Court;.but both there, and in
the very brief references to Article 37, and to Article 7 of the Man-
date, made in the body of the Opinion, the Court seems to have
assumed the existence of the necessary conditions without going
into that matter. The little that was said provides no real assistance,
and this was necessarily so since no jurisdictional issue of any kind
was before the Court in 1950. Assumptions apparently made
without any reasoning as to, or consideration of, the specific under-
lying issues involved, in an Advisory Opinion directed chiefly to
other matters not involving any concrete jurisdictional question,
clearly do not constitute a sufficient basis on which to found juris-
diction in subsequent contentious proceedings in which these issues
are now directly raised.

In the same way we think that the 1950 finding of the Court,
to the effect that the Assembly of the United Nations was entitled
to exercise the supervisory functions of the former League Council
under Article 6 of the Mandate, is equally irrelevant to the present
proceedings, which do not involve any specific issue of ‘‘devolution”,
“inheritance” or “carry over’’—much as these matters have been
discussed in the arguments of the parties. We repeat that the issue
now before the Court is a purely jurisdictional one. The jurisdic-
tion of the Court could not be preswmed on any merely devolu-
tionary basis. The existence of Article 37 is alone enough to show
that. The jurisdiction of the Court as successor to the Permanent
Court, was provided for expressly by the combined operation of
Articles 36 and 37---or else it does not exist at all. No one contests

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that Article 37 substitutés the present for the former Court, provided
that the conditions specified in Article 37 are fulfilled at the mo- .
ment jurisdiction is invoked. The question is are they here ful-
filled? Equally no-one doubts that Article 7 of the Mandate con-
tains an obligation to have recourse to adjudication, provided the
conditions specified in it are fulfilled. Again the question is, are
they?

These are quite different issues, in our opinion, from those which
were before the Court in 1950, and accordingly we shall endeavour
to deal with the jurisdictional issues in the present case entirely
on their own merits.

IV
THE FIRST PRELIMINARY OBJECTION

Having regard to the view we take on the third Preliminary
Objection, namely that Article 7 was only intended to safeguard the
individual interests of League Members in the Mandated territory,
conferred under the terms of the Mandate, and did not cover dis-
putes about the conduct of the Mandate, much of the discussion
on the first preliminary objection (as also the second) has for us
a certain unreality, since these objections are hardly meaningful,
and are in any event unnecessary, in the context of this case, if
Article 7 does not relate to the conduct of the Mandate. We therefore
discuss these objections on the assumption that it does, merely
pointing out that a great deal which is obscure regarding these
objections becomes clear on the opposite view, which is ours.

1. The burden of proof. The duty of the Court itself to be satisfied
that jurisdiction is conclusively established

In order that our attitude as to the character of the Mandate,
and in regard to the first Preliminary Objection, should not be
misunderstood, we must begin by recalling that, since the burden
of establishing the jurisdiction of the Court lies on the party
asserting it, and this must be established conclusively, it follows
that it is for the Applicants to show that the Mandate is beyond
reasonable doubt a “treaty or convention in force” for the purposes
of Articles 36 and 37 of the Statute. Moreover, quite apart from
any question of onus of proof, a duty lies upon the Court, before
it may assume jurisdiction, to be conclusively satisfied—satisfied
beyond a reasonable doubt—that jurisdiction does exist. If a
reasonable doubt—and still more if a very serious doubt, to put
it no higher—is revealed as existing, then, because of the principle

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of consent as the indispensable foundation of international jurisdic-
tion, the conclusion would have to be reached that jurisdiction is
not established. In short, the doubt would, according to the normal
canons for the interpretation of jurisdictional clauses, have to be
resolved against the existence of jurisdiction.

*

In what follows, we reach the conclusion that, while there may
be room for some, even considerable, argument, the better view is
that the Mandate did not have the character of a treaty or conven-
tion; that Article 7 of the Mandate cannot properly be considered
in isolation from the rest of the Mandate as having some sort of
treaty character of its own, independently of the instrument it is
embodied in; and that even if either the Mandate, or Article 7
separately considered, had such a character, neither is any longer
in force on a treaty basis. We wish nevertheless to make it quite
clear that our final conclusion on the first preliminary objection
does not rest upon these factors alone. It rests also upon the simple
fact that no onus lies upon the Respondent State to disprove the
past and present treaty character of the Mandate or of Article 7.
The onus lies upon the Applicants of establishing that character
beyond reasonable doubt, since this goes to the root of jurisdic-
tion. The duty lies equally upon the Court of being affirmatively’
satisfied to that effect.

In our opinion, an examination of the record in these proceedings,
and of the oral arguments presented, shows that even on the most
favourable assessment of the considerations that can be adduced
in support of the view that the Mandate or Article 7 was and is a
“treaty or convention in force’, very serious doubt—to say the
least of it—must remain as to whether this really is the case.
On this ground alone, the first Preliminary Objection should be
held good, even if there were not more positive reasons for doing so.

*
* *

2. Was the Mandate a treaty or convention?
(a) Legal nature of a treaty or convention

Before considering the character of the Mandate, which will
involve stating, as briefly as we can, the salient features of the pro-
cess by which it was brought into being, there are some preliminary
points of law that must be referred to.

We do not adopt a narrow or doctrinaire view as to what is com-
prised by the term “treaty or convention”. We are not—or at least
so we hope—guilty of the solecisms either of supposing that treaties
or conventions are only what are actually labelled as such, or of

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confusing an international agreement as an act, with the particular
instrument in which it is embodied. We give the widest connotation
to the notion of treaty or convention as covering everything: that
constitutes or embodies an international agreement, whatever its
form, style or nomenclature—any agreement, formal or informal.

But while international law takes, and rightly takes, a liberal
view of what constitutes a treaty, convention or other form of
international agreement, the notion is not an unlimited one. It is
not synonymous, as the Judgment of the Court might almost lead
one to suppose, with international acts and instruments generally.
Thus, in its final draft on the “Conclusion, Entry into Force and
Registration of Treaties” completed earlier this year (Document
A/CN. 4/148 of 3 July 1962), the International Law Commission
of the United Nations adopted the following definition of a treaty,
with which we associate ourselves:

‘Treaty’ means any international agreement in written form,
whether embodied in a single instrument or in-two or more related
instruments and whatever its particular designation {here follows a
list of some dozen . possible appellations including of course ‘con-
vention’, ‘agreement’ and ‘declaration’], concluded between two or
more States or other subjects of international law and governed
by international law.”

It will be seen that this concept of what constitutes a treaty,
though wide, is not a limitless one. We draw attention in particular,
in the context, to the phrases “in written form” and “‘concluded
between two or more States or other subjects of international
law”. Thus a verbal agreement, while it might be held binding
(see the Ihlen Declaration in the Eastern Greenland case, P.C.1.J.

1 A subsidiary point, which we accordingly place in a footnote, is that if, contrary
to our view, the Mandate for South West Africa would otherwise have been in the
nature of a treaty or convention, an objection to this conclusion could be based
on the character of the parties to the Mandate agreement (if it was one). As we
shall demonstrate later, the only entity other than the Mandatory itself which
could have ranked as a party would have been the League of Nations or the Council
of the League acting for it. But it is by no means certain that in 1920 (when the
Mandate was formulated) international legal opinion would have accepted the
conclusion arrived at by the present Court in the Injuries to United Nations Servants
case (Reports 1949, p. 174) that international organizations could have a legal
personality separate and distinct from that of their Members, and rank as entities
“subjects of international law’’. If not, then, considered in the light of contempo-
raneous legal thinking, the Mandate could only have ranked as a treaty or conven-
tion if the parties to it were States. Our view is that the only State which could have
been a party to the Mandate, if it was a treaty or convention, was the Mandatory,
and this would mean (on the above premises) that the Mandate was not a treaty
or convention at all, because not concluded between “‘two or more States”. We
deal with this further later.

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Reports, Series A/B, No. 53, at pp. 69 et seg.), would not be a
treaty or convention. Nor would a statement (e.g. of intention)
made, or an assurance given, in the course of, say, a speech at an
international conference or assembly, be a treaty or convention. A
declaration containing a unilateral assumption of obligations would
not be an international agreement at all, since an international
agreement must be concluded between “two or more” parties.

The quasi-treaty character which “optional clause” declarations
made under paragraph 2 of Article 36 of the Statute are sometimes
said to possess, would arise solely from the multiplicity of these
declarations and their interlocking character, which gives them
a bilateral or multilateral aspect. A single such declaration, if it
stood quite alone, could not be an international agreement. Op-
tional clause declarations are clearly not covered by the words
“treaties or conventions” in paragraph x of Article 36, or there
would have been no need for paragraph 2, except perhaps for reasons
of convenience or emphasis. Ifa State making a declaration of willing-
ness to accept the jurisdiction of the Court compulsorily for cer-
tain classes of disputes were held thereby to have entered into a
treaty or convention, a dispute of the class specified would rank
as a matter “‘specially provided for” in “treaties or conventions in
force” within the meaning of paragraph 1. We have already drawn
attention to the similarity of wording between Article 37 of the
Statute and Article 36, paragraph 1, in the reference to treaties
or conventions in force. The term was clearly intended to mean
the same in both places, and we cannot see why it should be given
a more extended meaning in the one than in the other. This will
have a further significance when we come later to consider whether
Article 7 of the Mandate could be detached from it and considered
as an isolated declaration having treaty character.

The foregoing points involve some of the most important ques-
tions of law arising on this part of the case. The Judgment of the
Court in effect identifies the idea of an international agreement
with any act or instrument embodying, or giving rise to, interna-
tional obligations, or which contains or involves an international
“engagement’’. This we believe to be a fallacy, as the above exam-
ples show, and others could be adduced. To take again the case
of unilateral engagements, these may as already mentioned have
a quasi-treaty character when they interlock with one another, or
interlock with provisions of an existing treaty (as in certain of the
Minorities casés). Otherwise they must necessarily lack the element
of the bilateral or multilateral essential to give anything treaty
character. .

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These are merely some examples. In brief, the assumption that it
suffices if an international obligation exists, is to beg the whole
question at issue, and to assume what has to be demonstrated;
for no one has ever contested that the Mandate gave (and so long
as it continues in force as an institution gives) rise to international
obligations. But that does not of itself make it a treaty, convention
or other form of international agreement. It cannot be too strongly
emphasized that the test is not, or is not merely, the creation
of international obligations, but the character of the act or instrument
that gives those obligations their legal force. This is the essential point
which, in relation to the Mandate for South West Africa, has to be
investigated in this part of the case.

Nor, as we said earlier, and as we believe is evident, are we
making the elementary mistake of confusing or identifying the
instrument embodying or evidencing an international act, with the
act itself. Although it will frequently be convenient to speak of the
instrument that embodied the Mandate for South West Africa as
“the (or as being the) Mandate’’, we shall not thereby be meaning
that the Mandate consists of the original piece of paper on which it
was written out in Geneva and which was deposited in the Archives
of the League of Nations on December 17, 1920. What we under-
stand by the Mandate is not this piece of paper, but the international
act that gave rise to it, namely, in our view, the Resolution of the
Council of the League of the same date. What has to be investigated
is the nature of this Resolution and ‘whether it had a treaty or
conventional character.

Finally, before we pass on to this investigation, we wish to refer
to evidence contemporary with Articles 36 and 37 of the Court’s
Statute in order to show that, quite apart from the legal principles
we have been discussing, and others we shall come to later—as also
the normal rules of legal interpretation—it could not be permissible
to read the term ‘‘treaties or conventions” in these Articles as
having a connotation more extensive than that of international
agreements; for this evidence shows that when something wider and
more inclusive than instruments of.a conventional character was
intended, this could be and was indicated in terms. For instance,
Article 80, paragraph x, of the Charter, upon which so much reliance
has been placed by the Applicants in this case, states (inter alia)
that nothing in Chapter XII of the Charter ‘‘shall be construed ... to
alter in any manner ... the terms of existing international instru-
ments”, etc. (italics ours). Indeed, this phrase may well have been
employed in Article 80 expressly with the Mandates in mind (7nter
alia). Had wording similar to that italicized in this passage been used
in Articles 36 and 37, no doubt would have existed that the Mandate
was covered, whatever view might be taken as to the character of
that act or instrument. Similarly, in the United Nations Assembly
Resolution of February 12, 1946, providing for the transfer of certain

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League assets and the assumption of certain League functions, that
part which related to the possible transfer of political functions, in-
cluding such functions as the supervisory functions of the League
Council under Article 6 of the Mandate (though it did not actually
transfer these, or any other political functions, nor were any assumed
by the United Nations) was styled, and referred to as “treaties,
international conventions, agreements and other instruments having
a political character” (italics ours). Here again, if some similar

hrase, such as “‘treaties and other international agreements and
instruments”, had been employed in Article 37, no doubt would
have existed.

These facts, and the principle of consent as the basis of interna-
tional jurisdiction, make it legally inadmissible as against the Man-
datory to interpret the words “treaty or convention” in Article 37
as if it had a wider extension, and in particular as if it covered any
instrument containing an adjudication clause, irrespective of the
conventional character of that instrument. It is therefore necessary
to establish strictly that the Mandate has that character.

We recognize in this connection that it may be tempting to
regard an instrument containing an adjudication clause (particu-
larly one worded like Article 7—“‘The Mandatory agrees...’’, etc.)
as being pro tanto of a conventional character. We do not however
think it possible or legitimate to detach and isolate one provision
of an instrument, ascribe a treaty character to it and then, on that
basis, deem a similar character to be thereby imparted to the whole
instrument. Article 7, standing on its own, could not be a “‘treaty or
convention” for the purposes of Article 37 of the Statute, for an
adjudication clause, standing on its own, and apart from the context
in which it occurs, is meaningless and can have no real existence.
It could not be interpreted, and certainly could not be applied in
isolation. The fact that it is in the instrument may indeed be a
pointer to the character of the latter, may afford some evidence as
to the nature of the instrument: but that is all. Moreover, it would
seem that if one did detach Article 7 from the rest of the Mandate,
it would then assume the character of a unilateral declaration in-
volving a unilateral assumption of obligation, since the Mandatory
alone gave the undertaking. Unilateral declarations may contain
undertakings, and can certainly create valid international obligations;
but, as noted above, they do not come within the category of treaties,
conventions or other forms of international agreements, since they
have no bilateral character.

With the above explanations of our approach in regard to some
of the principal legal factors involved in this part of the case—

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others will be left for later consideration—-we proceed to a considera-
tion of the Mandate itself.

(b) The Mandate System

The various mandated territories were all territories in Africa,
the Middle East or the Pacific, sovereignty over which was renoun-
ced after the First World War by Germany or Turkey. But before
considering what became of them, and in particular of German
South West Africa, it is, we think, essential to distinguish clearly
between the Mandates System, and the individual Mandates and
their terms. Failure to do this has caused much confusion in this case.
The former (the System) was the creation of Article 22 of the Cove-
nant of the League of Nations. The latter, the Mandates themselves,
were not. The principal functions performed by Article 22 were (a)
to specify the general character and purposes of the System; {b) to
distinguish between the various classes of Mandates (“A’’, “B” and
“C” as they came to be called) setting out in broad outline what
would be necessary in each type of case, in order to safeguard the
interests of the mandated territory and its inhabitants; and (c)
to set up certain machinery to supervise the administration of the
individual Mandates: thus reports were to be rendered by Manda-
tories to the Council of the League, and a Permanent Mandates
Commission was to be constituted to receive these reports and advise
the Council “‘on all matters relating to the observance of the Man-
dates”.

But Article 22 did not itself confer any Mandates, appoint any
Mandatories, or define the terms of any Mandates. This was done
aliter, as will be seen. The remaining features of Article 22 that are
of especialimportance in the present context were as follows:

(1) It indicated that the Mandates were to be exercised by the
Mandatories “‘on behalf of the League”.

(2) Itstated that the ‘‘well-being and development”’ of the peoples
of the Mandated territories formed “‘a sacred trust of civilization”

1 The ‘‘A” Mandates related to countries in the Middle East whose existence as
independent nations could provisionally be recognized, and which needed only
administrative advice and assistance from the selected Mandatory. The “B”
Mandates related to less advanced territories in Central Africa which might event-
ually attain independence, but for the administration of which the Mandatory
must meanwhile be responsible. The ‘‘C’’ Mandates related to South West Africa
and certain Pacific territories which could ‘“‘be best administered ... as integral
portions” of the Mandatory’s territory, and under its laws.

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and that “‘securtties for the performance of this trust should be
embodied in this Covenant’ (our italics).

(3) It provided (paragraph (8) of Article 22) that the “degree of
authority, control, or administration” to be exercised by any Man-
datory should, ‘‘2f not previously agreed upon by the Members of the
League” (our italics), be “explicitly defined in each case by the Coun-
cil” (our italics).

Before passing on to the Mandates themselves, it is convenient to
comment in particular on head (2) above. The “‘securities’’ (or
guarantees or safeguards as they are variously called) for the
performance of the sacred trust were to be embodied in the Cove-
nant itself. The implication of this, according to normal principles of
interpretation, was that any measure, obligation, etc., which was
not provided for in the Covenant, could not rank as, or have the
status of a “security” for the purposes of Article 22—-or in other
words it could not be considered as something essential to the func-
tioning of the Mandates System as conceived of in Article 22.
Moreover, Article 22 did not confer on the Council of the League any
authority to add to the securities specified in that Article. The Coun-
cil could, in effect, under paragraph 8 of Article 22, define the terms
of particular Mandates and thereby impose obligations on the
Mandatory, but not so as to give these the status of a “security”,
unless they were already specified as being securities in some pro-
vision of the Covenant.

These ‘‘securities’’ were of course set out in Article 22 itself.
Certain paragraphs made provision, inter alia, for the avoidance of
abuses such as the slave trade, the arms and liquor traffic, for
demilitarisation, and so on. But the chief security or safeguard
consisted in the provision made for reporting, and for the super-
visory functions to be exercised by the Permanent Mandates
Commission and the League Council.

Nowhere in Article 22, or elsewhere in the Covenant!, is any
corresponding provision made for what (though in our view errone-
ously ?) has been called “judicial supervision” in respect of the

1 Article 14 of the Covenant provided for the establishment of a Permanent Court
of International Justice, but (apart from an advisory jurisdiction in relation to
the Council and Assembly of the League) it was to be competent only to hear
and determine disputes ‘“‘which the parties thereto submit to it”. Article 14 estab-
lished no compulsory jurisdiction either in respect of Mandates or anything else.
Any such compulsory jurisdiction had to be established specially. In the case of
the Mandates, an obligation on the part of the Mandatory to submit to compulsory
jurisdiction was not created by the Covenant, but by clauses of the various in-
dividual Mandate instruments.

2 In our viéw ‘‘supervision”’ is not a judicial function except where the law
specifically entrusts a supervisory function to the Courts, as mights be the case
for instance, in the domestic field, where the welfare of infants and minors, or
of persons of unsound mind is concerned. In contentious proceedings such as
alone could take place on the basis of Article 7 of the Mandate for South West
Africa, the function of the Court is to determine a specific dispute—an eminently
judicial, not supervisory function. ,

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conduct of the Mandates; and the deduction must therefore be
drawn that, at any rate at this time (the period 1919-1920), provision
for the compulsory adjudication of disputes about the Mandates
was not regarded as an essential element of the system, and did not
rank as a “security” for the performance of the sacred trust of
civilization within the meaning of Article 22. The argument to the
contrary rests we think on bare assertion and special pleading.

We are not concerned to argue whether it would have been a good
thing or not that “Judicial supervision” should have been one of the
securities. Our duty is simply to note the fact and draw the neces-
sary legal deductions from it. The point will recur, and of course
if we are correct in our view on the thzvd preliminary objection, it
would only be natural that a provision for the judicial protection of
the statal interests of League Members in the Mandated territories
should not figure amongst the “‘securities’”’ in Article 22.

*

It. will be evident from the foregoing summary of Article 22
that it was chiefly+ concerned with defining and describing the
nature of a certain trust, and of the system contemplated for car-.
rying it out; with establishing certain safeguards to that end, in the
interests of the inhabitants of the territories concerned; and with
the provision of certain machinery in that connection. But it
created no actual Mandates, and the performance by any given
Mandatory of its duties in discharge of the Mandate conferred on
it, and to be “exercised ... on behalf of the League’’, was to be left
(see paragraph (8) of Article 22) to the explicit definition of the
authority of the Mandatory, either by agreement between, or
on the part of, “the Members of the League’, or, in default of such
agreement, by the Council of the League acting as such.

We therefore turn now to consider how, and in what man-
ner and form, this explicit definition (which constituted the
individual Maridate) was effected. We shall of course be doing so
with reference to the case of the Mandate for South West Africa,
but it should be noted that the method and form adopted (namely,
a Resolution of the League Council) was exactly the same in the
case of all the various Mandates, of whatever category, with the
single exception of that for Iraq which, significantly enough and
for special reasons, took the form of an actual and undoubted treaty
(or treaties) between His Britannic Majesty and the King of Iraq.
The importance of the uniform. method of creation of all the other
Mandates was that there was nothing in it peculiar to the case
of South West Africa. Had the other Mandates been created by

i.e. apart from ‘“‘Equal opportunities for the trade and commerce” of Members
of the League, which were reserved in the case of the ‘‘B’’ Mandates, missionary
rights, etc.

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acts or instruments that unquestionably were and took the form
of international agreements, it might have been argued that the
difference in the case of the Mandate for South West Africa was
merely accidental or fortuitous, and that there being no real dif-
ference of kind between it and other Mandates (at any rate so far
as the “C” category went, to which South West Africa belonged),
it also should be held to be of the same nature, and equally to
have treaty character. But this was not the situation.

+
* *

(c) The framing of the Mandate for South West Ajrica

The initial steps (we shall not go into a lot of back history)
leading to the issuing or promulgation of the Mandate for South
West Africa were as follows:

1. The various Mandatories for the ex-German territories in
Africa and the Pacific were nominated by the five Principal Allied
and Associated Powers of the First World War, the United States
of America, the British Empire, France, Italy and Japan (hereafter
sometimes called the “Principal Powers”), in whose favour sover-
eignty over these territories was renounced by Germany under
Article 119 of the Treaty of Versailles. It was basically they who
decided to deal with these territories by placing them under Man-
date as a sacred trust for civilization’, though the System itself,
as has been seen, was the creation of Article 22 of the League
Covenant.

2. The actual transfer of the territories to the various Manda-
tories, in their capacity as such, was provided for by Article 257
of the Treaty of Versailles; but already before that Treaty was
signed on June 28, 1919, a decision of the Supreme War Council,
made and published by it early in May of that year, had designated
the various Mandatories, and amongst them the Union of South
Africa in respect of South West Africa; in point of fact the Respon-
dent accepted the Mandate the same month. This decision of the
Supreme War Council was confirmed in August of the same year.
But even before that, most of the mandated territories (including
South West Africa) were being administered by the future manda-
tories on a basis of military occupation resulting from the operations
of the War. This point was stressed by Lord Balfour in the Council
of the League when he subsequently said “Remember that a
Mandate is a self-imposed limitation by the conguerors [of rights]

1 For this reason, and as having taken the cession from Germany, it may be
that, in that capacity, though not (as will be seen) as parties to the Mandates,
the Principal Powers retained, and may still retain on a dormant basis, a residual
or reversionary interest in the actual territories concerned except where these
have attained self government or independence.

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which they obtained over conquered territories. It is imposed by
the Allied and Associated Powers themselves in the interests of
what they conceive [to be] the general welfare of mankind; and they
have asked the League of Nations to assist them in seeing that this
policy should be carried into effect}.’’ While not necessarily sub-
scribing to all the legal implications of this statement, it clearly
tends to support the view that a strict rather than a liberal inter-
pretation should be placed on the consent given by the Mandatory
under Article 7.

3. The Treaty of Versailles (and with it the League Covenant
which formed part of it) came into force on January I0, 1920, and
it was therefore not until then that, by virtue of Article 257,
the actual transfer of the mandated territories to the Mandatories,
in their capacity as such, formally took effect. On the same date,
the Mandates System came into being under Article 22 of the Cove-
nant; but the actual Mandates did not appear until much later—.
in the case of South West Africa, not until December 17, 1920. It
will thus be seen that, considerably before the formal creation of
the Mandates System, and still more before the terms of the actual
Mandates were settled, the various Mandatories were in fact admi-
nistering the Mandated territories (in practice as Mandatories)
on a quasi anticipatory basis.

*

The situation above described goes far, we consider, to explaining
why the eventual Mandates did not take the form of ordinary
treaties. The League of Nations as an entity was clearly closely
concerned, yet its treaty making capacity was at that time doubtful,
and would certainly have been doubted. How then could the League
be brought in, in a manner that would not involve any question of
its treaty making capacity? It may in any case well have been
considered that the sudden emergence of treaties, with signatures and
ratifications and provisions for coming into force (and who precisely
would sign, and upon what would coming into force have depended ?}
more than eighteen months after the Mandatories had de facto started
to function as such, would be inappropriate, and might well give rise
to legal difficulties.

There is nevertheless evidence in the record that it had originally
been intended to create the Mandates by treaty, but this intention
was abandoned for reasons which are obscure, though they can
be guessed at. We do not however draw from this circumstance
the conclusion apparently drawn by some, that the Mandate should

1 League of Nations, Official Journal, 18th Session of the Council (1922), pp. 546-
548.

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nevertheless still be deemed to be what it may originally have been
intended to be—a treaty. We draw the opposite conclusion, that
in the final result it was not intended to be a treaty, or the original
intention would have been proceeded with. No other conclusion
can well be come to on any permissible process of interpretation.

As it is impossible for us within reasonable limits of space to go
over all the documentation, we propose to concentrate on one or
two salient matters. The first of these consists of a report by the
Belgian representative on the Council of the League (M. Hymans)
which was adopted unanimously by the Council on August 5,
1920. This report contained a detailed consideration of the problems
associated with the creation of the Mandates System, with a view
to securing the performance of Article 22 of the Covenant, and
it is of special importance. It stated (inter alia) that Article 22 laid
down two essential principles which applied to all peoples not able
to stand by themselves, namely:

(x) it was the sacred trust of civilization to assure the well-
being and development of these peoples;

(2) certain guarantees were stipulated to ensure the performance
of this trust, namely:

(a) the tutelage of such peoples was to be entrusted to the na-
tions best fitted to undertake this responsibility ;

(>) such nations were to exercise this tutelage as Mandatories
and on behalf of the League.

Pausing there, it will be noted that amongst these guarantees and
securities (as specified in this Report), there is no mention of any
“judicial supervision” to be exercised by the Permanent Court
relative to the conduct of the Mandate. We therefore have the
position that in a Report which specifically stated what (in the
unanimous view of the Council, since it was adopted unanimously}
were the securities intended by the Covenant for the performance
of the trust, there was no suggestion of any kind that any additional
security was required or contemplated. In particular, for our pur-
poses, there was no reference in the Report to any necessity for
judicial determination of disputes relating to the conduct of the
Mandate.

The same Report confirmed that the Principal Allied and Asso-
ciated Powers had already, by a decision published in May 1919,
decided who were to be the Mandatory Powers, and that the terri-
tories concerned were actually already being administered by the
Mandatory Powers to whom it was intended to entrust them.

The Report went on to say that draft treaties had been negotiated
between the Allied Powers principally concerned, but that the
drafts had not been published. (These drafts are to be found in

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Foreign Relations of the United States—Paris Peace Conference,
Vol, UX at 649 et seg. They were in the form of formal conventions
between the Principal Allied and Associated Powers and the Man-
datory Powers.)

The Report then stated that the right to allocate the Mandates,
i.e. to appoint the Mandatory Powers, and to determine the terri-
tories over which they would exercise authority, belonged to the
Principal Allied and Associated Powers and that this admitted of
no divergence of opinion. As to the degree of authority, control
or administration, the Report suggested that the Principal Allied
and Associated Powers should ‘‘at the same time as.they acquaint
us with their decisions as to the Mandatory Powers, inform us of
their proposals with regard to the terms of the Mandate to be
exercised”. We stress the word “‘proposals’’.

The Report then suggested to the Council the following resolu-
tions:

“T. The Council decides to request the Principal Powers to

(a) name the Powers to whom they have decided to allocate
the Mandates provided for in Article 22;

‘(b) to inform it as to the frontiers of the territories to come
under these Mandates;

(c) to communicate to it the terms and conditions of the
Mandates that they propose should be adopted by the
Council from (sic) following the prescriptions of Article 22
(italics ours).

II. The Council will take cognizance of the Mandatory Powers
appointed and will examine the draft Mandates communicated to
it, in order to ascertain that they conform to the prescription of
Article 22 of the Covenant.

III. The Council will notify to each Power appointed that it is
invested with the Mandate, and will, at the same time, communicate
to it the terms and conditions.”

This Report was adopted by the Council unanimously on Au-
gust 5, 1920, and the suggested resolutions were duly carried.

It was not, however, until December 14, 1920, that a proposed
draft ““C’’ Mandates were placed before the Council of the League.
The United Kingdom representative on that day “handed in a
draft Mandate proposed by the British Government” relating to
South West Africa and other “C’’ Mandate territories. The Council
referred the drafts to the Secretariat ‘‘to consider the Mandate
and to consult other legal experts on any points necessary’’!.
Subject to certain alterations made by the Council of the League—
to which reference is made later—these drafts formed the basis of
the Resolution of the Council of the League of December 17, 1920,
containing the Mandate for South West Africa.

1 League of Nations Official Journal, 2nd Year, No. i, p. 11.
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*

The foregoing statement of the facts, in our view makes two
things abundantly clear:

I. Any intention which the Principal Allied and Associated
Powers may at one time have had to confer the Mandates, name
the Mandatory Powers, define the limits of the Mandated territo-
ries, and set out the terms of the Mandates in a formal treaty or
convention between themselves and the Mdndatories, was aban-
doned in favour of the procedure set out in the resolution of the
Council of the League of August 5, 1920, namely, action taken by
the Council of the League directly pursuant to Article 22 of the
Covenant.

2. At a certain point, ie. when it adopted the Resolution of
August 5, 1920, and thereafter, the League Council so to speak
“took charge” of the whole operation, and what it required of the
Powers was that these should communicate to it their proposed
terms for the Mandates, in order that the Council might satisfy
itself that they conformed to Article 22 of the Covenant, and the
Council would then, by its own act, give these terms the force of
law. In short the Mandates were not to take the form of treaties
or conventions between the Principal Powers and the Mandatories:
they were to take the form of a quasi-legislative act of the Council.
As will be seen, this is the form they did take, and this constitutes
the decisive factor regarding this part of the case.

*
* *

(d) The promulgation of the Mandate

The Mandate for South West Africa, as eventually adopted by
the Council of the League and promulgated by a Council resolution
of December 17, 1920, had undergone certain alterations as a result
of being referred to the Secretariat and to ‘“‘other legal experts”
at the stage when it consisted of a draft containing the proposals
of the Principal Powers. These alterations, to which we shall come
presently, were accepted by the Council for the purposes of its
final resolution. They do not affect the substance of the Mandate,
but they do affect in certain highly significant respects the jurisdic-
tional questions under consideration in the present phase of this
case. Their chief significance, however, lies in the fact that they
were made at all, and by the Council acting as such, and as its
own act—so that the Mandate, in its final form, was the act of
an organ of an international organization, in the active exercise
of powers conferred on it by its constitution. It was not a treaty
or convention between States or other international entities and
had not character as such.

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We now set out the terms of the Mandate as adopted by the
League Council on December 17, 1920, since it is not in our view
. possible to understand its character without the convenience of
easy reference to it. It read:—

“MANDATE FOR GERMAN SOUTH WEST ArRICA

The Council of the League of Nations:

Whereas by Article 119 of the Treaty of Peace with Germany signed
at Versailles on June 28th, 1919, Germany renounced in favour of
the Principal Allied and Associated Powers all her rights over her
oversea possessions, including therein German South-West Africa;
and

Whereas tne Principal Allied and Associated Powers agreed that,
in accordance with Article 22 Part I (Covenant of the League of
Nations) of the said Treaty, a Mandate should be conferred upon
His Britannic Majesty to be exercised on his behalf by the Govern-
ment of the Union of South Africa to administer the territory
aforementioned, and have proposed that the Mandate should be
“‘ormulated in the following terms; and

Whereas His Britannic Majesty, for and on behalf of the Govern-
ment of the Union of South Africa, has agreed to accept the Man-
date in respect of the said territory and has undertaken to exercise
it on behalf of the League of Nations in accordance with the following
provisions; and

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:

Confirming the said Mandate, defines its terms as follows:—

ARTICLE I

The territory over which a Mandate is conferred upon His
Britannic Majesty for and on behalf of the Government of the Union
of South Africa (hereinafter called the Mandatory) comprises the
territory which formerly constituted the German Protectorate of
South-West Africa.

ARTICLE 2

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

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

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JOINT DISS. OPIN. JUDGES SPENDER AND FITZMAURICE

ARTICLE 3

The Mandatory shall see that the slave trade is prohibited, and
that no forced labour is permitted, except for essential public
works and services, and then only for adequate remuneration.

The Mandatory shall also see that the traffic in arms and am-
munition is controlled in accordance with principles analogous to
those laid down in the Convention relating to the control of the
arms traffic, signed on September Ioth, 1919, or in any convention
amending the same.

The supply of intoxicating spirits and beverages to the natives
shall be prohibited.

ARTICLE 4

The military training of the natives, otherwise than for purposes
of internal police and the local defence of the territory, shall be
prohibited. Furthermore, no military or naval bases shall be estab-
lished or fortifications erected in the territory.

ARTICLE 5

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.

ARTICLE 6

The Mandatory shall make to the Council of the League of Nations
an annual report to the satisfaction of the Council, containing full
information with regard to the territory, and indicating the measures
taken to carry out the obligations assumed under Articles 2, 3, 4
and 5.

ARTICLE 7

The consent of the Council of the League of Nations is requiréd
for any modification of the terms of the present Mandate.

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, shall be submitted to the Permanent Court of Inter-
national Justice provided for by Article 14 of the Covenant of
the League of Nations.

The present Declaration shall be deposited in the archives of the
League of Nations. Certified copies shall be forwarded by the Sec-
retary-General of the League of Nations to all Powers Signatories
of the Treaty of Peace with Germany.

Made at Geneva the 17th day of December, 1920.”
489 JOINT DISS. OPIN. JUDGES SPENDER AND FITZMAURICE

The differences between the Mandate as adopted on December
17, 1920, and as it had been proposed to the Council on December
14, were as follows:—

(1) The draft as proposed on December 14, 1920, did not contain
the fourth recital of the preamble in the final text, namely:

“Whereas, by the above-mentioned 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?.”

This recital was added by the Council, and it brings out what
might otherwise not have been quite clear, namely that the text
had not been previously agreed by the Members of the League, and
was therefore, as it had in the circumstances to be, the act of the
Council under Article 22 (8) of the Covenant. This point, as will
be seen, is material to the question whether the Members of the
League were ever individually parties to the Mandate if it was a
treaty or convention.

(2) The original December 14 draft read as follows immediately
after the preambular recitals: [The Council of the League of Na-
tions....]

“Hereby approves the terms of the Mandate as follows:—”’

For this the Council substituted: [The Council..., etc.]
“Confirming the said Mandate, defines its terms as follows...”

Clearly the effect of this was to substitute for what might have
been contended to bea mere approvalof pre-existing terms, something
new, namely the definition of the terms of the Mandate by the
act of the Council itself ?.

1 It has been asserted that the Council’s authority under Article 22 (8) was
limited to authority over ferritory only. We regard this as an untenable assertion.
It is meaningless to speak of administration over bare territory. To give this, in
our view, wholly artificial meaning to Article 22 (8) is to disregard the rest of that
Article and the purposes it was designed to serve. The Council was in our view
perfectly competent to subject the Mandatory’s administration of the territory and
its peoples placed under tutelage to such conditions and limitations as it thought
fit in order to carry out the purposes of Article 22, provided they were in conformity
with and not inconsistent with the terms of Article 22. In any case, and this is the
important consideration, the Council and all its Members, including of course the
Principal Powers, believed it was acting within the scope of its authority in defining
the terms of each Mandate instrument. The conduct of all States, Members of the
Council, then and since is wholly inconsistent with any other view.

® What the Council confirmed was the conferring of a Mandate upon the Man-
datory. That had to be the act of the Principal Allied and Associated Powers
consequent upon Article 119 of the Treaty of Versailles.

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(3) The first paragraph of Article 7 of the Mandate as it appeared
in the December 14 draft had provided that the consent of the
Council for any modification of the terms of the Mandate instrument
might be given by a majority. This reference to a majority was
struck out by the Council. The significance of this, as indicative of
the status of the Council in relation to the Mandate will be considered
hereafter.

(4) The second paragraph of Article 7—the critical paragraph
from the point of view of these proceedings—as originally drafted
provided:

“If any dispute whatever should arise between the Members of
the League of Nations ... this dispute shall be submitted...’’, etc.

This was altered by the Council to read:

“The Mandatory agrees that if any dispute whatever should arise
between the Mandatory and another Member of the League...’’, etc.

We shall state later what were the reasons for this alteration,
and shall only mention here that they make it virtually impossible
to hold the view that if (contrary to what we think) the Mandate
was a treaty or convention, the various Members of the League
were individually parties to it as such.

*
* *

(e) The character of the Mandate as promulgated

On the face of it, the Mandate as set out in the League Council’s
resolution of December 17, 1920, does not look like a treaty, con-
vention or other form of international agreement. In form and on
the face of it, it looks like what it purported to be—a Declaration
promulgated by a resolution of the Council of the League in the
exercise of a power conferred upon it by paragraph 8 of Article 22
of the Covenant, exercisable precisely if the terms of the Mandate
had not been ‘‘previously agreed upon by the Members of the Lea-
gue’’. To all appearances therefore, the Mandate was a quasi-legis-
lative act of the League Council, carried out in the exercise of a
power given to it by the Covenant to meet a stated contingency—a
power which it was bound to exercise if the terms of the Mandate
had not previously been agreed upon by the Members of the League.
This being so, the Court must accordingly be conclusively satisfied
that the Mandate has a different character—that it is in fact an
international agreement, and has treaty character.

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We might add, what it should scarcely be necessary to say, that
the fact that an act is done under an authority contained in an
instrument which is itself a treaty (in this case the League Covenant)
does not per se give the resulting act a treaty character. To take a
familiar recent instance—under Article 17 of the United Nations
Charter the General Assembly is authorized to approve the budget
of the Organization, and the budget as approved is binding on the
Member States. It could not be contended that it is on this ac-
count a “‘treaty” any more than could a resolution of the General
Assembly apportioning the expenses of the United Nations amongst
its Members under Article 17 (2) of the Charter.

All the arguments that have been advanced for the purpose of
establishing the treaty character of the Mandate seem to repose on
one or both of two assumptions. The first, which we have already
discussed, is that any instrument creating international obligations
has treaty character. In refutation of this view, we need only refer
to what we have already said under the head of ‘‘Legal nature of a
treaty or convention”.

The second assumption is that if an act or instrument follows
upon certain antecedent consents, this entails that it is itself an
agreement. This is not the case. We have already cited cases such
as those under Article 17 of the Charter; and we could cite numerous
examples drawn from private law, of acts which can follow upon
various consents and agreements, but which are themselves of quite
a different character. Even legislative acts can follow upon certain
consents, and there may even be, and often is, a constitutional
requirement that these should have been obtained. Yet when a
Head of State issues a Decree or Order, and the latter recites
(as it often does) that it is made “by and with the consent” of
his Council, or of some other body, this does not impart even a
vestige of a contractual character to the resultant act.

Consequently, neither the fact that the Mandate created inter-
national obligations, nor the fact that it recites in its Preamble the
existence of certain antecedent consents, is conclusive, or carries
the matter much further. Of course, there had to be an antecedent
agreement between the Principal Powers to confer a Mandate on a
particular Power: and there had to be a common understanding—
call it agreement—between them as to the draft terms of the Man-
date wich they would propose to the Council. Clearly the Man-
date would never have been promulgated except against a back-
ground of some general common understanding. But this does not
suffice to give it a treaty character. The test, as we have said
earlier, must be, not whether certain background consents or
understandings or agreements existed, nor whether international
obligations were created, but what was the character of the act or
instrument that gave those obligations their legal force. This act was

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in our view the resolution of the Council. From the moment of
its issue on December 17, 1920, the Mandate had the force of law.
Previous to that, whatever agreements existed, it had not.

The facts we have adduced make it clear that the resolution of
the Council cannot be regarded as an instrument simply registering
and recording the terms of an international agreement, from
which agreement the rights and obligations concerned really
sprang. In the first place, this resolution, as has been seen, spe-
cifically recited (in the fourth recital which the Council itself
introduced) that the terms had not. been agreed by entities which
had, or might be thought to have, an interest in the matter. Second-
ly, the Record makes it clear that, as has been seen, the Council did
not simply take over and re-issue automatically the terms proposed
to it by the Principal Allied and Associated Powers, in mere approval
of an antecedent and independent agreement, acting in effect as a
“rubber stamp’. As has been noted, the idea of embodying the
Mandates in ordinary treaties or conventions had been abandoned;
and the Council, in certain significant respects already indicated,
altered the terms as proposed by the Principal Powers, and issued
these revised terms expressly as the Council’s own act, in definition
of the terms of the Mandate. The mere fact that the Principal
Powers agreed amongst themselves as to what terms they would
“propose” to the Council, cannot possibly give the Mandate instru-
ment itself treaty character. Nor can the fact that these Powers
had in 1919 agreed on the States to whom a Mandate was to be
conferred.

In these circumstances, and having regard to the form of the Mah-
date instrument and to the fourth recital in the Preamble, it is not
reasonably possible to consider that the onus which lies on the
Applicant States to establish that the Mandate had a treaty
character, has been discharged.

It has however been suggested that the Mandate is not all con-
tained in the relevant Council resolution, and that it is also partly
contained in Article 22 of the Covenant, which does have a treaty
character. We have already shown that what Article 22 was con-
cerned with was the system. In only provided for one specific obli-
gation to be imposed on Mandatories, namely to render reports to
the Council. But the obligation itself, so far as the Respondent State
was concerned, was imposed by Article 6 of the Mandate for South
West Africa, thus making it a self-contained instrument. The
relevant Council resolution was entitled, and has always been known,
as the ““Mandate for German South West Africa”; and when, in the
international field, the Mandate for South West Africa is referred
to or cited, it is to this resolution that reference is made. That this
was considered to be “‘the Mandate” is apparent from the references

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contained in the resolution (e.g. in Article 2 and 7) to “‘the present

Mandate” !

%
* 3%

Certain subsidiary indications as to the character of the Mandate
may now be noticed. There is, to begin with, the fact that under
the first paragraph of Article 7, the terms of the Mandate could
only be modified with the consent of the League Council. This
naturally was inserted in order to prevent any attempt at modifi-
cation, either unilaterally, or by agreement between the Mandatory
and some other entity or entities. It will be recalled that initially,
consent by a majority of the Council was proposed. But this was
altered by the Council so as to require consent by the whole Council.
We attach no importance to the fact that—since the Council acted
by unanimity—this alteration gave a veto to the Principal Powers
as standing Members of the Council. The effect of the alteration
made by the Council was to give each Member a veto. What the
alteration introduced by the Council makes evident is that the
Mandate was regarded as being basically, as well as formally, the
act of the Council as such, whose consent as an entity was therefore
necessary for any modification of it. This provision is certainly not
consistent with the view that the role of the Council in bringing the
Mandate into being was that of a mere agent or promoter (entre-
preneur), utilized as a matter of convenience in order to give effect
in concrete terms to the arrangements of others, and which there-
after drops out of the picture. Nor is the supervisory role of the
Council under Article 6 of the Mandate consistent with such a view.

*

Finally, there is the fact that the Mandate, in common with all the
other ‘‘B”’ and ‘‘C” Mandates, was not registered asa “‘treaty or inter-
national engagement” under Article 18 of the Covenant—precur-
sor of Article 103 of the United Nations Charter ?. The provision in the
final paragraph of the Mandate, for its deposit in the Archives of the
League, did not amount to a registration of it as a treaty for
the purposes of Article 18. This was merely the common form
provision, which appears in almost every international instrument,
for depositing the original text either with the headquarters gov-

1 Moreover, even if the Mandate could be said to have been partly contained in
Article 22 of the Covenant, the Covenant is no longer in force as a treaty or con-
vention and, in any case, the adjudication clause to which Article 37 of the Court’s
Statute must attach itself if it is to apply at all, is in the Mandate (Article 7),
not the Covenant.

2 This has been confirmed by official enquiry at Geneva.

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ernment or, as the case may be, with the international organization
in or under the auspices of which it has been drawn up. Indeed
a glance at the terms of the System of Registration approved by
the Council in May 1920 is sufficient to establish that the provision
for deposit in the League’s archives could not amount to registration
under Article 18. This is further confirmed by the fact that none of
the Mandates—with the exception only of Iraq, which for special
reasons was in the form of a treaty—ever appeared in the Treaty
Series published by the League.

It is of course possible for an instrument in fact to be a treaty or
other international agreement despite non-registration, and there-
fore the non-registration of the Mandate was not of itself conclusive
as to the latter’s character. But what the fact of non-registration
does conclusively establish is how it was regarded by those concerned,
i.e. that they did not regard it as a treaty, convention or other form
of international agreement.

It is reasonably certain that if those concerned had definitely
regarded the Mandate as a treaty or convention, they would have
registered it under Article 18, as the United Kingdom laterregistered
the Mandate for Iraq. Certainly the need for registration, if anyone
connected with the events of 1920 ever thought the Mandate in-
strument was a treaty or convention, could hardly have escaped
the notice of the Secretary-General. That the Mandate instrument
was not registered may not establish conclusively that it was not an
international agreement, but since it must be assumed that the
Members of the League did normally register anything they thought
had that character, non-registration is good evidence that, in the
case of the Mandate, neither the Council nor any Member of the
League (or any of the Principal Powers) thought it was?.

A final factor militating against the view that the Mandate had
treaty character is the difficulty of satisfactorily identifying the
parties to it, considered as a treaty or convention. This matter we
shall consider in the next section.

*
* *

3. Is the Mandate ‘‘in force” as a treaty or convention?

(a) At what date must it be in force as such?

Since, in our view, the Mandate-has not, and never did have the
intrinsic character of an international agreement, it is strictly

. 1 We are aware of course that in the case of Mavrommatis (P.C.1.J., Series A/B,
No. 2, at 11) the parties did not dispute that the Palestine Mandate was a treaty
or convention in force. The issue was not contested, objections to jurisdiction were
based on other grounds.

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unnecessary to consider whether. it is still in force, regarded as a
“treaty or convention”. Nevertheless we propose to do so, because
. the Mandate, if not itself an international agreement, had certain
aspects on the basis of which it may be argued that it had some
conventional character. This being so, we would not wish to rest our
view on the sole conclusion that it had not—correct though we
believe this conclusion to be.

Furthermore we think it essential to consider whether the
Mandate is still “in force” as a treaty or convention, assuming it
was one, for the following reason. The fact that the issue raised
by the first Preliminary Objection is not whether the Mandate is
simply “‘in force”, appears to have been completely lost sight of.
The issue arising on Article 37 of the Statute is whether the Mandate
is in force as a treaty or convention. For this purpose it is not suf-
ficient to rely on the Court’s 1950 Opinion as establishing that the
Mandate is, in any case, in force on an institutional basis.

The term “in force” in Article 37 must, we think, be taken to have
the same meaning as in the reference to ‘‘treaties and conventions
in force” in Article 36, paragraph 1, of the Statute, namely in
force at the date when the Court is seized of the case by Applica-
tion, this being the date when all the elements necessary to give
the Court jurisdiction must be present 1.

(b) Who would be the parties to the Mandate as a treaty or conven-
tion in force?

It is, or should be, common ground that, assuming the Mandate
to have been a treaty or convention, there must have been parties
to it, and that it would have ceased to be in force as such on the
disappearance of the parties, and/or the reduction of them to below
the minimum number (of two) requisite for an agreement to be,
and remain, in force as such. We do not accept the view that a
treaty can be “partyless’’. The present-day United Nations trus-
teeships have been cited. Whether these are true agreements

1 The suggestion is advanced that assuming the Mandate was a treaty or con-
vention in force prior to the dissolution of the League, Article 37 of the Court’s
Statute would have permitted a State, a Member both of the League and the United
Nations, to invoke the jurisdiction of this Court up to the time that the League was
dissolved; that once the Mandate came within the scope of Article 37 it remained
under it, and that accordingly it must be concluded that such States continued
thereafter and until today to enjoy the right to invoke Article 7 of the Mandate.

The premises manifestly do not support the conclusion.

Article 37 of the Statute did not keep in force treaties or conventions in force when
the Statute came into operation. It goes without saying that if at the time when
the jurisdiction of the Court is invoked a treaty or convention has come to an end,
as such, whether by effluxion of time, agreement between the parties, or for any
other reason, such treaty or convention cannot provide the ground upon which
jurisdiction can be based. |

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(see Articles 81 to 83 and 85 of the Charter) is not a question we are
called upon to or should express an opinion upon; this would
involve an interpretation of the relevant provisions of Chapter XII
of the Charter. But if they are agreements they certainly have
parties. In 1920, however, and under international law as it then
stood, there was no such thing as an international agreement the
parties to which could not readily be identified.

We must therefore consider the question of who were (apart
from the Mandatory itself), and who are now, the parties to the
Mandate considered as a treaty or convention: but we do not
propose to examine obviously untenable propositions such as
that the inhabitants of the mandated territory were directly or
indirectly parties. There remain for consideration the Principal
Allied and Associated Powers, the individual Members of the League
of Nations, and finally the League itself or League Council.

(i) The Principal Allied and Associated Powers—It has been
suggested that the Principal Allied and Associated Powers were
the parties, together with the Mandatory. If such was the case,
these Powers appear to have been totally unaware of it for up-
wards of forty years. It has already been seen that the original
‘idea of casting the Mandate into the form of an ordinary treaty or
convention was abandoned, and in our view no contractual nexus
was established or intended to be established with or between
the Principal Allied and Associated Powers on the basis, or in
consequence, of the Mandate instrument. This is evidenced not
only from the facts antecedent to December 17, 1920, but also
from the text of the Preamble itself, which makes it clear that
the role of the Powers was confined to naming the Mandatory,
and to proposing the terms of the Mandate for the acceptance or
rejection of the Council—terms which the Council in fact modified
before issuing them as its own act. Once the Powers had taken
this action they became functus officio, apart from such residual
or reversionary rights in the mandated territory itself as they
may have retained on a dormant basis. Thenceforward, the action
was the League Council’s, and if it resulted in a treaty or conven-
tion at all, it was not one to which the Powers as such and as a
. group were parties; for thenceforward (as provided by the Cove-
nant) the Mandatory exercised the Mandate ‘on behalf of the
League”, and the Powers disappeared from the scene except as
Members of the Council.

The absence of any contractual nexus so far as the Powers
were concerned, is further evidenced by the fact that, although
the United States of America had participated in the earlier drafting
of the ‘‘C’”’ Mandates, and in the allocation of the Mandate for South
West Africa to the Respondent State in 1910, it not only was not
present at the Council Meeting of December 17, 1920—since it had

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never ratified the Treaty of Versailles or become a Member of the
League—-but was unaware of what had been submitted to the
Council on December 14, 1920, and dealt with by the latter three
days later+; or of what action the Council had taken, until after
the event. Moreover we know that in the separate treaty which the
United States concluded with Germany in Berlin in 1927, it re-
served for itself all rights and advantages set out in the Treaty of
Versailles for the Principal Allied and Associated Powers, including
those in respect of the former German colonies, and stipulated that
it should not be bound by any action taken by the League of Na-
tions unless the United States should expressly give its assent to
such action. Whether the United States ever did expressly give
its consent to the terms of the Mandate for South West Africa does
not appear.

k

The view that the Powers were or regarded themselves as
being parties to the Mandate (or to any of the Mandates) is equally
impossible to reconcile with their subsequent conduct, as also
with certain elements of the legal situation resulting from the
Mandate instrument.

At no time subsequent to December 1920, did any of the Powers
claim to be a separate party, gua Principal Allied Powers, or to
have any interest in the conduct of the Mandate otherwise than
through their membership of the League Council. Such a claim
would also have been hardly consistent, legally, with the fact that
according to paragraph 1 of Article 7 of the Mandate, it could
only be modified with the consent of the League Council (a similar
provision appeared in all the “B’” and “C’’ Mandates).

This situation was no doubt masked by the fact that the Principal
Powers (minus the United States however) were themselves per-
manent members of the League Council which acted by unanimity.
Moreover, it is possible, though not easy, to read paragraph 1 of
Article 7 of the Mandate as not excluding the necessity for other
consents, additionally to the Council’s. Again, it can be contended
that countries may become parties to treaties which they have
agreed shall be subject to modification without their consent, and
that this was in fact the position of the Powers in relation to the
Mandate, because of or under paragraph x of Article 7.

These are far-fetched arguments, or hypotheses (speculations
really), and the point is that there is no evidence at all to show
that this was the position, rather than the much more natural
and likely hypothesis that if the Mandate was a treaty, the other

1 This appears from Annexes 154, 154 @, b and c, to Procés-Verbaux of Meeting
of 12th Session of the Council of the League of Nations.

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party to it was the League alone, or the League Council acting
for it. It is quite clear that the Council’s view was that it alone was
the competent authority to modify the terms of a Mandate in-
strument, a view which it is evident the Principal Allied and
Associated Powers on the Council accepted. The Council on many
occasions acted on this view. It seems indisputable that the Prin-
cipal Allied and Associated Powers on the Council accepted the
position that, except in their capacity as Members of the League
Council, their functions had been completed once the Mandates
had been established. There is no evidence to suggest that any of
them ever thought that their consent was essential to any modifica-
tion of a Mandate, or that this was merely because they had waived
their rights in the mattert, .

But whatever may have been the position in the time of the
League of Nations, the view that the Powers were (and still are
now) parties to the Mandate as a treaty or convention, would lead
to even more formidable difficulties to-day, particularly if the
Court’s 1950 finding that the Mandate could be altered by agreement
between the Mandatory and the United Nations was correct--
for in the Assembly of the United Nations the Principal Powers
have no controlling vote or veto, and only three of them are—if
the United States is included—Permanent Members of the Security
Council. One can only conclude that in the absence of express
provisions producing such a result, it is not legally possible to
entertain the idea that a group of countries can be parties to a
treaty which can be altered without their consent, or even, it would
seem, contrary to their wishes.

Nor is the post-1945 conduct of the Powers consistent, any
more than it ever was, with the view that they, or any of them,
were parties to the various Mandates as treaties or conventions.

1 What took place in relation to the Mandate of Iraq is we think informative.

The Mandate was conferred upon the United Kingdom by the Supreme Allied
Council at San Remo on April 25, 1920. The United Kingdom accepted the Mandate.

Thereafter the United Kingdom entered into a series of Treaties between itself
and the King of Iraq. These or most of them were communicated to the Council of
the League. No other State was a party to these Treaties.

In a communication from the United Kingdom of September 27, 1924, to the
Council of the League—and to it alone—these Treaties were summarized and
supplemented by a statement setting out the Mandatory Powers own obligations
to the League, with regard to the application of Article 22 of the Covenant. In this
communication the United Kingdom stated that it was ‘willing to agree’ with the
Council upon certain terms which were set out. -

Amongst the undertakings given to the Council and accepted by it was one that
an annual report should be made to the satisfaction of the Council, another to the
effect that no modification of the terms of the Treaties would be agreed to without
the consent of the Council, and an adjudication clause which in general follows
the form of Article 7, paragraph 2, of the Mandate for South West Africa. The
Principal Allied and Associated Powers were as such complete strangers to these
undertakings; which were given to the Council and to it alone.

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On that basis what would one make, for instance, of the passage
in the resolution of the League of April 18, 1946, which referred to
the Mandatories’ intentions to continue to discharge their obliga-
tions under the Mandates “until other arrangements have been
agreed to between the United Nations and the respective Mandatory
Powers” (italics ours) ?

Again, when various of the mandated territories were brought
under the Trusteeship System of the United Nations, this was
done directly by the Mandatory Power concerned, and at no time
did any of the Principal Allied and Associated Powers claim, as
such, any right to be a State ‘directly concerned” with the terms of
trusteeship under Article 79 of the Charter of the United Nations.

The conclusion must be that the notion of the Principal Powers
or any of them being or ever having been parties to the Mandate,
gua treaty or convention, is too artificial and gratuitous to be ac-
cepted. It represents little more than a rather desperate attempt
to produce some entity as a party which is still extant, and can
therefore, together with the Mandatory, be pointed to as keeping
the Mandate in force today as a treaty or convention’. Much the
same applies to the next suggested category of parties, to which
we now address ourselves.

(11) The individual Members of the League—If the Members of
the League were parties to the Mandate in their capacity as such,
there would be no problem, for the League being dissolved, its
former Members have lost that capacity and could no longer be
parties to the Mandate as Members of the League. The question
is therefore, and must be, if they were parties, were they so in their
individual capacity as separate sovereign States, still extant (as
States) today?

We think this question can only be answered in the negative.
An instrument or “Declaration” (which was the name given to

1 A variation of this theme is the view that four only of the Principal Allied and
Associated Powers were parties to the Mandate as a treaty or convention. This
variation omits the United States. This contention is, if anything, more artificial
than the major theme of which it is a variation. Its only merit is that it seeks to
overcome the difficulty created by the fact that the United States, not being a
Member of the League, was not present at the meeting of the Council in December
1920. Otherwise the same criticisms apply to it. The United States had of course
participated in the conferring of the Mandate and in drafting the terms proposed
to the Council.

The contention in any case is quite inconsistent with the recitals to the Council’s
resolution of December 17, 1920, recitals 1 and 2. The Principal Allied and Associated
Powers by definition under the Peace Treaty included the United States. The
United States was distinctly included in the constantly used descriptive phrase
“the Principal Allied and Associated Powers’: see Annex 1546, Minutes of 12th
Session of Council of the League.

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the Council’s Resolution of December 17, 1920, embodying the
Mandate) issued by and in the name of the Council as its own act,
could not bring in the Members of the League except in their
capacity as such—a capacity they no longer have. For them to
have become, and still to be, parties to the Mandates, in their
individual statal capacity, independently of their membership of
the League, would have required something in the nature of the or-
dinary processes of separate signatures, ratifications, full powers,
etc. The whole form and method of issue of the Mandate is hostile
to the notion of the individual Members as separate parties to it,
or as having any status in regard to it, other,than as Members of
the League and through their participation in its activities.

But in any case, the notion of the Members as separately and
individually parties, is excluded by the express statement in the
Preamble to the Mandate (fourth recital) that the Members of
the League, not having previously agreed upon the terms of the
Mandate, these were now being defined by the Councilin the exercise
of the power given it to do so in such circumstances by Article 22,
paragraph 8, of the Covenant. Forty or fifty countries cannot
be separate parties to an agreement which specifically recites that
they have not agreed upon its terms. It has been suggested that
the term “Members of the League’”’ in this fourth recital had some
special, limited and restricted meaning, not including the generality
of the Members, and confined, for instance, to the Principal Powers.
If this were correct, then, since it must be assumed that the term
“Member” or “Members” of the League had the same meaning
wherever used in the Mandate, it would follow that the term
“any ... Member of the League” as used in Article 7, paragraph 2,
had the same alleged special, limited and restricted meaning as in
the Preamble, and did not therefore include the Applicant States
now claiming under paragraph 2 of Article 7.

But clearly this suggestion is not correct. It was not merely a
question of the Principal Powers giving up the notion of negotiating
the Mandate by treaty or convention. The other Members of the
League were extant, but they were hardly even consulted or asked
to agree. From the Summary Record of a meeting of the Sub-
Committee VI (c) of the League Assembly, the Committee on whose
business agenda the question of Mandates was placed—-a meeting
held as late as December 13, 1920—it appears that the Council
of the League were already considering the draft of ‘A’ Mandates,
and would probably be considering shortly the “B” and “C”
drafts also, yet the Assembly was being kept in the dark on what
was happening. Copies only of the draft “A’’ Mandates had been
furnished by the Council to the Sub-Committee, but on the strict
understanding that this information was confidential and that it

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must not be used. Four days later the Council promulgated the
Mandate for South West Africa.

It is therefore, we think, evident enough that the Council did not
purport to enter into any contractual engagement on behalf of the
individual States which, either at that time were, or at any time
thereafter should become, Members of the League. The Applicants
admitted, and we think correctly admitted, that the Council acted
under the provisions of Article 22 (8) of the Covenant, and not
otherwise. The Council was doing what, in the circumstances, it was
under a duty to do under that Article. It was not we think purport-
ing to enter into any treaty obligation at all, and it certainly was
not purporting to enter into one on behalf of the individual States,
Members of the League.

Indeed, one will look in vain for any authority in the Covenant
by virtue of which the Council could enter into treaty arrangements
so as to make individual States, who were Members of the League,
then or at any subsequent time, parties to a treaty or convention.
The facts equally fail to disclose any authority given by States to the
Council to act for each of them and to enter into a treaty or conven-
tion on their behalf; and it is established that, apart from those
Members of the League, who were also Members of the Council,
all other States were ignorant beforehand of what was contained
in the Mandate.

Action taken by the Council under Article 22 (8) bound the
League and its Members not because any treaty or convention came
into existence, but solely because the League as such, and the States
Members of the League, were bound in advance under the Covenant
by whatever definitior. of the degree of authority, control or admini-
stration to be exercised by the Mandatory Power, was made by the
Council acting under Article 22 (8). They were bound by the Mandate,
in so far as that is relevant; but as, and through, being Members of
the League, not as actual parties to the Mandate itself. A further
indication to the same effect, is that in such provisions as Articles 5
and 7, the Mandate refers—not to the ‘‘Parties to the present Man-
date’, or to the “Parties to the present Declaration”, but to the
“Members of the League”. It was as Members of the League, and
not as parties to the Mandate, that certain rights were conferred on
them. Indeed, one of the most striking refutations of the view that
the Members of the League were ever regarded as parties to the
Mandate is to be found in the fact, noted earlier, that the League
Council, when it received the draft terms proposed by the Powers,
made an important change in paragraph 2 of Article 7. It changed
this provision in such a way that instead of all the Members of the
League undertaking the obligation of compulsory adjudication of
disputes, the Mandatory alone undertook it. This appears to have
been done because it was felt—and rightly felt— that an obligation
of this kind could only result from specific consent. But had the

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Members of the League been parties to the Mandate, they would
thereby have consented. Clearly they were not considered to be
parties.

Nor could it be contended that, because the Mandate conferred
on the Union of South Africa was to be exercised by it “‘on behalf of
the League”, this made each State which was a Member of the Lea-
gue, into a separate party to the Mandate instrument as a treaty or
convention.

We conclude that any interest in the Mandate which the Members
of the League possessed, or any part in it as an international act
which they may have had, was solely in their capacity as Members
of the League.

Pa
* *

(iii) The League or League Council as party—From the foregoing,
the inevitable conclusion must be drawn that, all other candidates
having been eliminated, the only party to the Mandate, apart from
the Mandatory (and if the Mandate was a treaty or convention at all),
was the League itself or the Council acting for it. This is the only
conclusion consistent with the salient facts—namely that the
Mandate was the act of the Council; that the Council defined its
terms; that the Mandate was exercised ‘on behalf of the League”;
that except for certain specific rights given by particular provisions
of the Mandate to the ‘Members of the League” (in their capacity
as such, that is), all the obligations of the Mandate were owed to the
League; and that the Mandate could only be modified with the
consent of the whole Council.

The only doubt, to which we alluded earlier, is whether, at that
date, an international organization such as the League, and still
more a particular organ of it, such as the League Council, would
have been regarded as having separate international personality
and treaty-making capacity. This doubt may well have been one of
the considerations which suggested the actual form taken by the
Mandate. But if so, this would merely bear out the conclusion we
came to on the first part of the first preliminary objection, namely
that the Mandate never had treaty character at all—for if all the
entities that might possibly have been parties to it, considered as a
treaty or convention, apart from the Mandatory, have to be elimi-
nated (including the League and its Council), the inescapable con-
clusion is that the Mandate was not (as it certainly was not in form)
an international agreement.
503 JOINT DISS. OPIN. JUDGES SPENDER AND FITZMAURICE

As we suggested earlier, doubts about the treaty-making capacity
of the League and its Council, coupled with the obvious need for
. providing the Council with an unimpeachable standing in the mat-
ter, and the requirements of Article 22 (8) of the Covenant, may
well have been, indeed we believe it was, a factor in the decision to
formulate the Mandate as a Resolution of the Council, rather than
as a treaty or convention between the Principal Allied and Asso-
ciated Powers and the Mandatory.

In no other way could the Council be given its proper place.
Under a treaty or convention, even if it had made provision for the
position of the League and its Council, this position might well have
been impossible to assert, in the last resort, except through and
with the co-operation of the Powers, and of the Mandatory. Such a
situation would have been wholly incompatible with Article 22 of
the Covenant, and with the whole concept of the Mandates System.

These can only be speculations. What is quite clear is that if the
Mandate was a treaty or convention, the parties, and only parties
to it, were the Mandatory and the League or its Council. Since
neither League nor Council exist now, the number of parties is less
than two, and therefore, as a treaty or convention, the Mandate is no
longer in force.

There is, further, the fact of the non-registration of the Mandate
as a treaty or convention under Article 18 of the Covenant. As
previously noticed, this is a strong indication that those concerned
did not regard it as having treaty character. But if it was a treaty
or convention, as the Applicants contend, then its non-registration
as such would raise the question, under Article 18, whether it was
“binding” in tts character as a treaty or convention. fit were not, the
further question would arise whether a treaty or convention which
is “‘not binding” is, or can be, “in force”t.

a
* *

Conclusion on the first preliminary objection: the conditions
requisite to give the Court jurisdiction under Articles 36 and 37
of its Statute are not fulfilled, inasmuch as the Mandate was the
act of the League Council and is not and never was a “treaty or
convention” (or other form of international agreement); or alter
natively, if it was, it is no longer in force as such, as there would
now remain only one party—the Mandatory.

1 Even if, as has been suggested, this should not be taken to mean more than
is provided for by Article 102, paragraph 2, of the United Nations Charter—namely
that an unregistered instrument cannot be invoked ‘“‘before any organs of the United
Nations’’—the Court is such an organ (see Article 7, paragraph 1, of the Charter).

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Vv
SECOND PRELIMINARY OBJECTION

In the normal course it would be sufficient to rest upon the
answer we gave to the first objection. Since however we believe
that each of the objections raised by the Respondent stands in
the way of the Court assuming jurisdiction, we deem it our duty,
in the special circumstances of the case, to express our views on
each objection.

There are also special reasons why we should deal with the
Second Objection.

Although we are satisfied that the Mandate is not a treaty
or convention, in force as such, we recognize, as we have already
indicated, that the Mandate had a certain background of consent,
as indeed it had to have. We cannot, in recognizing this, do so for
the reasons, or with the consequences, adduced in support of the
Applicants’ contentions. A view which, in the face of most of the
evidence, asserts that the Mandate was a treaty, and then seeks
to discount the resulting difficulties on the ground that this treaty
Was sui generis or was not an ordinary agreement, confesses it
seems to us a lack of cogency. The same may be said of a view
which holds the Mandate to be in force today as a treaty or conven-
tion, but which is unable to indicate who are now the parties to
this treaty or convention, apart from the Mandatory; or which,
on the same plea of it being a special case, argues that it is imma-
terial whether there are any parties or not; or which again, in dis-
regard of legal principle, postulates for certain States a right they
only had in a capacity they have lost.

But in any event, the Second Objection raises in a much more
direct form than the First, an issue which must always be central
to any question of the jurisdiction of the Court, namely the
capacity of the Applicant States to invoke the clause alleged to
confer jurisdiction on the Court.

*
* *

1. Importance and character of the Second Preliminary Objection

Since adjudication clauses irivariably indicate what are the
entities, or classes of entity, entitled to avail themselves of the
right to call for a reference to adjudication, the basic question
arising on this part of the present case is whether the actual terms
of Article 7 permit the Applicants to invoke it; and if not, on what
legal basis (if any) they can nevertheless claim to do so. These
terms, we would recall, so far as here relevant, are that the Man-
datory agrees to submit to adjudication, disputes with ‘any other
Member of the League of Nations”.

18g
505 JOINT DISS. OPIN. JUDGES SPENDER AND FITZMAURICE

It is clear that Article 37 of the Statute cannot operate so as to
substitute the present Court for the former Permanent Court
in a case in which that Court could not have had jurisdiction. It does
not operate so as to increase jurisdiction. It merely substitutes
for a reference to the Permanent Court a reference to this Court.
It cannot, and does not, of itself determine whether, in the given case,
that Court would in fact have been competent. We must stress
this point because, evident though it should be, it does not seem
to have been fully appreciated in the present case. A provision
like Article 37, which is not specifically directed to the case of
Mandates, and relates to a very large number of treaties and con-
ventions of all sorts and kinds, is quite neutral as to whether in
any given case an obligation to submit to adjudication does exist.
Whether the obligation exists in any given case, or not, depends on
the adjudication clause alleged to create it (in this case Article 7
of the Mandate)!, which such a provision as Article 37 can neither
add to nor alter. Failing any express provision to that effect, and
there is none, Article 37 could only operate so as to confer on the
present Court the pre-existing competence—whatever that was—
of the Permanent Court, and not so as to confer a different or more
extensive competence. Moreover Article 37 could not of itself
determine whether any competence at all existed.

One may accept unreservedly that the present Court is, within
the’ limits of Article 37, substituted to the fullest possible extent
for the former Permanent Court, to exercise any jurisdiction which
that Court could, in its day, have exercized. The question would
still remain in any given case; could the Permanent Court itself have
exercized that jurisdiction? In our view, it could not and would
not have done so under Article 7 of the Mandate, except at
the instance of a Member of the League of Nations—a quality
not attaching to the present Applicants. It is, in our view, so
evident both that the present International Court cannot exercise
a jurisdiction which the former Permanent Court could not, in
its day, have exercized, and that in fact the Permanent Court
could not then have assumed jurisdiction in proceedings brought
against the Mandatory by a non-Member of the League, that little
more should be necessary to be said on this part of the case.

1 It is the scope of the Mandatory’s obligation to submit to adjudication which
is governed by Article 7. An unlimited obligation to submit to adjudication
is almost unheard of. Practically every adjudication clause contains conditions
and limitations of some kind. A very frequent, almost invariable one, is a limitation
as to the class of State or entity which can invoke the clause. In the case of treaties,
the right is normally restricted to the parties to the treaty; and in the case of in-
struments not of a treaty character, framed by or under the auspices of an inter-
national organization, the normal limitation is to States Members of the organi-
zation concerned.

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In the present proceedings what the Court has done—in our
view without legal justification—is to consider the matter on the
footing of what jurisdiction the Permanent Court could and would
have exercized if it was still functioning now—that is to say on the
assumption that the League of Nations was duly dissolved in 1946,
but that the Permanent Court had survived and was here and now
sitting and hearing the present case. This is of course to beg the
whole question at issue, and to disregard the fact that Article 37
could do no more than operate so as to give the present Court
jurisdiction in a case in which the Permanent Court would have
had jurisdiction. This necessarily presupposes a case arising at a
time when the Permanent Court wasin existence, for a non-existent
Court can obviously have no jurisdiction at all. If the Permanent
Court was still functioning, there would have been no need to
substitute the present Court for it. If the present Court has been
substituted for the former Court, it is because the latter was and
is not any longer functioning. Hence the jurisdiction which the
present Court “‘inherits” (so to speak) from the former Court is
the jurisdiction which the former Court actually was empowered
to exercise when it was functioning—that is to say the jurisdiction
which then fell within the scope of its competence. This did not
include proceedings purported to be brought under Article 7
by non-Members of the League, under which category the Applicants
fall.

In our view this is conclusive so far as the Second Preliminary
Objection is concerned, and strictly incontrovertible. Nevertheless,
we will consider the matter on the basis of whether the Permanent
Court, if it had survived the dissolution of the League, and were
here and now sitting, would be competent to hear and determine
the Applications now before the Court. |

*
* *

What the Court is called upon to consider in this part of the
case is the claim made on behalf of the Applicant States, that
although they are no longer Members of the League, because
the League itself has been dissolved, nevertheless as former Mem-
bers, that is, as States who were Members at the date of its dissolu-
tion, they should be deemed to have retained, or still to possess,
the right to invoke Article 7.

We propose to begin by considering whether the kind of transfor-
mation or metamorphosis involved by the Applicants’ claim, as
just stated, could possibly be admitted on the actual language of
Article 7, or by any legitimate process of “interpretation” of it.
We shall later consider whether such a transformation could be
postulated on the basis of any process of presumption or implica-
tion derived from circumstances lying outside Article 7 itself, or

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on the basis of the application of some general principle of law operat-
ing to effect such transformation.

*
* *

2. The interpretation of Article 7
(a) The actual language of the Article

We shall assume as our starting point something which we shall
demonstrate more fully later, namely that, in the absence of ex-
press provision to the contrary, rights conferred on or exercise-
able by a person or entity in a specified capacity, or as a member of
a specified class, cannot be exercized in another capacity, or as
a member of another class, or continue to be exercized if the speci-
fied capacity is lost or membership of the class ceases.

Thus, rights conferred on State A as a Member of the League,
or simply on “Members of the League” (State A happening to be or
become a Member) were not, and could not be rights conferred
individually on State A as such, which State A could thenceforth
retain indefinetly, without limitation of time, irrespective of its
relationship to, or of the very existence of the League?.

The findamental issue of principle raised by the second prelimi-
nary objection is therefore: on what grounds, if any, can States
invested with rights as, and only as, members of a class, claim those
rights in their individual capacity (no longer being members of that
class, or that class having ceased to exist), or as members of another
and different class?

Lord McNair (as he now is) was the oniy Member of the Court in
the 1950 case who specifically considered this issue in that form,
and he, in effect, set aside the class basis of the right conferred
by Article 7, holding that the mention of membership of the League
constituted only a description of the States entitled to exercise the
right, and was not a condition of its exercise. It did not mean
“so long as the League exists and they are Members of it” (J.C./.
Reports 1950, at p. 159.) In short, his view, to paraphrase it a little,
was that a State must, of necessity, no longer be a member of a
now non-existing organization, but this did not matter so long as
it could still be identified as a State that was invested with the
right when the organization still existed.

+ Even as a matter of ordinary logic, it is clear that rights conferred expressly on
members of a class, as such, are not thereby conferred on them as individuals.

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It is, naturally, with diffidence that we feel bound, for reasons
which will appear, to differ from this distinguished Judge. Lord
McNair’s opinion was indeed an attempt, the only one which has
ever been made, to reconcile such a claim as that of the present
Applicants with the actual language of Article 7. But it appears to
us to have overlooked the fact that Article 7 was never intended
to apply to any particular States as States. Nobody knew in 1920
what the exact membership of the League would be, or what it
would remain. This membership might, and did, vary periodically
a good deal. It was a shifting membership. At one time it might
comprise States A, B and C; at another A and B might have dropped
out, and D and E have come in. This kind of thing occurred from time
to time. Article 7 was not intended to apply to any of these States,
A, B, C, D, or E, as such. It was intended to apply to any State
which, at any given moment was—and only if and so long as it
was—a Member of the League. It was not intended to apply other-
wise. Therefore, if Article 7 conferred a right on Ethiopia and
Liberia, the present Applicants, it was solely as a consequence of
the fact that they happened to fulfil the criterion specified, namely
membership of the League. Otherwise they would not have had
this right.

Consequently there can, in our opinion, be no doubt at all that
during the lifetime of the League, membership was a condition,
and that the Permanent Court would have held itself incompetent
to adjudicate in the case of a dispute between the Mandatory and
a non-Member. An analogy is afforded by the fact that when
Germany, before she became a Member of the League, claimed (as
a Party to the Treaty of Versailles in which the Covenant and
Article 22 were embodied) to be entitled to intervene about the
administration of a former German territory under Belgian Mandate,
the German complaints were not answered by the League Council,
and Belgium as Mandatory stated that all such matters were “within
the exclusive competence of the League of Nations’ !.

Similarly, we entertain no doubt, and we do not think there
can be any doubt, that a country such as, for instance, Brazil,
which was a Member of the League at first, but subsequently left
it, thereupon lost its rights under Article 7, and that the Permanent
Court would have declared itself incompetent in any proceedings
brought by Brazil under that provision.

What then would be the difference in principle between such a
case as Brazil’s and that of the Applicant States in these proceed-
ings? It may be suggested that a difference arises out of the different

1 League of Nations Official Journal, VIII, pp. 316-317.
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manner in which League membership was terminated. Strictly
speaking, of course, the particular reason why the specified capacity,
or membership of the specified class is lost, is quite irrelevant. The
fact alone suffices. However, we will deal with the point. Brazil, it
may be said, voluntarily and deliberately left the League, and there-
fore obviously could not continue to enjoy the same rights as before;
whereas the Applicant States did not renounce their membership
—they lost it. The League came to an end, and therefore they
necessarily ceased to be members of it. But it has to be asked, why
did the League come to an end? It did not simply lapse. The-answer
is, of course, that it came to an end by the act of the Applicants
themselves in joining with the other Members of the League to
dissolve it. Even if it had been the case that the League came to
an end for reasons quite outside its Members’ control, and contrary
to their will, the fact of the cessation of the status and capacity of
League membership would have remained. But even this is not the
case. Termination was the act of the Members of the League them-
selves. Moreover, although, as the Record shows, the case of the
mandated territories was’ fully considered both.at San Francisco
when the United Nations was founded, and at Geneva when the
League was dissolved, no provision was made to meet the type of
case which has now arisen. For reasons which will appear later,
we reject the view either that this was due to a mere oversight, or
that such provision was in fact implicitly made in the course of the
final debates at Geneva and by the League resolution concerning
mandated territories of April 18, 1946.

It seems to us, therefore, that the action of the Applicant States
in joining to bring about the cessation of their League membership
was fully as voluntary and deliberate as Brazil’s; and we can only
see a difference of method between the two cases. We consider that
the Applicants, by divesting themselves of their League member-
ship, without making provision for the position thus created in
relation to Article 7 of the Mandate, put an end to their rights under
that provision, just as completely as Brazil did.

Even if the matter is placed on the basis that the Members of
the League, whether or not actually parties to the Mandate, were
granted specific third-party or third-State rights by Article 7, the
difficulty remains. Even if there are principles of third-State law
which might otherwise cause those rights to survive, they can only
survive according to their terms. The States concerned having, by
their own act, divested themselves of the capacity in which they
enjoyed these rights, can no longer claim them, even on a third-

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State basis; for no doctrine of third-State rights can extend to
enabling third States to continue to claim rights they have them-
selves, in effect, renounced.

*
* *

(b) Application of the general principles of law relative to capacity

In case the view stated above is thought to be unduly strict, we
would draw attention to the universally received general principle
of law—one essential to the orderly conduct of affairs—that rights
available to a person or entity in one capacity, do not remain avail-
able in another capacity—or if the first capacity comes to an end—
unless special arrangements have been made to produce this result.
This is constantly seen in the sphere of private law. Trustees,
administrators, curators, legal guardians, etc., have certain par-
ticular rights appertaining to their status in these capacities. The
moment such a status ceases, rights which are attached to the
status, and do not exist independently of it, also cease to exist.
Similarly, powers or faculties may be enjoyed in a specified capacity.
A change over to another status or capacity, or simply continued
existence as an individual, cannot carry with it the retention of
rights enjoyed in a previous capacity. In the same way, the mere
fact that the Applicant States in this case continue to exist as States ;
or that, instead of being Members of the League, they are now
Members of the United Nations, gives them in itself—in the absence
of special arrangements to the contrary—no right at all, especially
after they have themselves terminated their League membership,
to continue to invoke a provision available only to Members of
the League.

It would hardly seem necessary to insist on such an elementary
point. Yet insist we must, since in our view it has been in substance
ignored by the Court. For instance, much has been heard in this case
of what might be called the “policing the Mandate’’ aspect of
Article 7. But could it seriously be suggested in every-day life that
if a police force is disbanded, its ex-members can still go on exer-
cizing their former police functions? This would seem to be an
extraordinary notion for any Court of law to endorse. If the former
Members of the League had any “police” functions under Article 7,
it was as Members of the police force which was the League—a
force now disbanded and dissolved.

Moreover—and this is not without its significance—it is not the
case, even if it were legally relevant, that the substance of the

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Mandatory’s obligation would remain unaltered if this were now
owed to former Members of the League. This is because of the
_ different consequences that may result from a Judgment of
the present Court, as compared with the Permanent Court, having
regard to Article 94, paragraph 2, of the United Nations Charter.
Whatever the comparison between that Article and Article 1 3 (4)
of the Covenant, it is evident that there are substantial differences
between the two Articles. It is hardly appropriate to develop these
differences here; it is sufficient to say that in our opinion, not only
are the consequences that may flow from Article 94 (2) of the
Charter different from those which could have resulted from Article 13
(4) of the Covenant, but they could be more onerous in character.
Moreover, the Council was bound by the unanimity rule. Further-
more, under the Covenant it was for the Council, and for it alone,
to initiate what action, if any, it would propose, whereas the effect of
Article 94 (2) of the Charter is to invest the judgments of the present
Court with a backing of possible sanctions or enforcement action
at the instance of a State in whose favour judgment has been
pronounced. If, therefore, the Mandatory is still under an obligation,
by virtue of the combined effect of Article 37 of the Statute and
Article 7 of the Mandate, it is one that, potentially, has different
and more burdensome consequences than before. Thus to say that
the Mandatory is not being asked to submit to anything more than
it would have had to submit to in the days of the League is clearly
incorrect; and this situation, in our opinion, constitutes an absolute
bar to any extension or perpetuation of the Mandatory’s obligations
under Article 7, above and beyond its actual language, unless this
can be justified beyond possibility of reasonable doubt on the
basis of some applicable principle of legal interpretation or general
rule of law, particularly since it is reasonably evident, we think
that it is precisely in order to bring Article 94 of the Charter into
play that the present proceedings have been brought.

*

Since, in our view, the position is quite clear on the basis of the
actual language of Article 7, and of the ordinary law as to capacity,
we turn next to the question whether there is any applicable
principle of interpretation which would justify a different conclu-
sion. Two may be suggested: the principle of “maximum effect”,
and the principle of the “presumed intentions of the parties”.

*
%* ow

(c) The principle of “maximum effect”

This principle is one which can be employed in order to give
as full a scope to a provision as is reasonably consistent with its

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language, and with the general circumstances of the case; but
only if such an interpretation would be so consistent. It cannot
be employed to ‘‘re-write” a provision in a manner positively
inconsistent with, or even actually contrary to what it says.
Equally, its application must be excluded if the circumstances are
such as to evidence a complete lack of any basis for the interpreta-
tion that would result. We shall show later, in dealing with the
facts relative to the dissolution of the League, why we think that
this is precisely what the circumstances do show. For the moment
we will merely point out what the interpretation contended for
by the Applicants would really involve, for it is our view that
before the principle of ‘maximum effect” may with legal propriety
be applied, one must be prepared to write out the changes that
would be required in the provision concerned, if it had originally
been drafted so as expressly to produce the effect contended for;
and having done that, to consider whether the result remains
within the bounds of what can reasonably be regarded as legitimate
“interpretation”, or whether is goes beyond that, and amounts
to a revision or quasi-legislative “rectification” of the provision
in question.

In the present case, the interpretation the Applicant States
contend for could have been effected expressly by changes in
either Article 7 of the Mandate or in Article 37 of the Statute.
Changes in Article 7, expressed in its terms, could only have been
effected at the time when Article 7 was drafted, and must be
considered on that basis. Two possible methods may be envisaged.
One would have been to replace the phrase ‘‘another Member of the
League of Nations” by ‘‘any other State” or ‘any other interested
State’ or ‘any other State which at any time is or has been a
Member of the League”. We consider that the chances of the Man-
datory, or for that matter any of the Mandatories, having been
willing in 1920 to accept any such sweeping wording—even if
anyone had suggested it—can be regarded as negligible.

Alternatively, the result contended for could have been achieved
by adding after the words ‘another Member of the League of
Nations”, some such phrase as “or, should the League at any
time be dissolved, any State which was a Member at the date of
dissolution”. In the next following subsection we shall give our
reasons for holding that it is quite out of the question that any
such language should have been employed in 1920.

As regards Article 37 of the Statute, what would be necessary
would be to suppose that it had contained (and to read it as
containing) an additional paragraph running somewhat as follows:

“Whenever any such treaty or convention provides for the refer-
ence to adjudication of disputes between Members of the League of
Nations, it shall, in the event of, and notwithstanding, the dissolu-
tion of the League, be deemed to relate to disputes between States
who were Members of the League at the date of its dissolution.”

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It is our considered opinion that those who drew up the revised
Statute at the preliminary Washington Conference of March-April
1945, and subsequently at San Francisco, would never have taken
the leap in the dark which such a commitment would have involved,
without carrying out a most careful preliminary investigation of
the treaties that might be affected, in order to see just what such
a commitment would amount to. No such investigation was, so
far as we are aware, ever carried out; and in the circumstances,
we do not believe it is possible to imply in Article 37 such additional
words as would have produced the effect contended for, as if they
had been originally included in terms.

To sum up on this point—we consider that the application
of the principle of maximum effect in the present case would involve
an inadmissible degree of rectification of the provisions concerned,
altogether exceeding the bounds of what is possible by way of
legitimate interpretation. We would recall that in the second phase
of the Peace Treaties case (which had certain marked affinities with
the present one), the Court took exactly the opposite line to the
one it is now taking. Despite a finding that some of the parties
were in breach of what the Court had held to be a treaty obligation
to appoint their members of certain three-member tribunals pro-
vided for under the Peace Treaties, the Court nevertheless rejected
the view that, in the circumstances, the relevant adjudication
clause could legitimately be interpreted so as to permit a two-
member, instead of a three-member, tribunal to function. To do
that, the Court held, in a phrase which has since become part of
the common stock of international legal phraseology, would be
“not to interpret treaties but to revise them”. In short, the Court
refused to rectify a provision which, on its actual terms, and in
the circumstances which had arisen, was inadequate to produce
the result contended for. It is precisely such a rectification which
the Court is in our view now effecting, and with considerably less
legal warrant than would have existed for a rectification in the Peace
Treattes case.

Another reason why extensive interpretations of Article 7 are
not justified unless there is the clearest warrant for them, is the
unilateral character of that provision. It could be invoked against,
but not by, the Mandatory, even if the latter should itself want a
legal ruling on some point relating to the Mandate arising in a
dispute with another Member of the League. This makes it all the
more necessary to interpret Article 7 strictly, or at least
scrupulously.

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(d) The presumed intentions of the parties

We now turn to the second principle of interpretation on the
basis of which a different conclusion from the one we have come
to may be urged. It has been a major contention in this case that
in the life-time of the League, although some States might, by
leaving the League, lose their right to invoke Article 7, there
always remained other States which could invoke it, so that Article 7
could never become a dead letter. If, however, Article 7 had to
be read according to its strict language now, there would—so the
argument runs—be no State which could invoke it, so that it would
cease to operate at ail; this void can never have been intended
by the original framers of the Mandate, consequently it must be
filled by reading Article 7 as still conferring rights on ex-Members
of the League.

Since a situation in which there would be no States qualified
to invoke Article 7 could only arise by reason of the complete
dissolution or break-up of the League, this contention must pre-
suppose either that the original framers foresaw that possibility,
or that, had they foreseen it, they would have provided for it,
and would have done so in the sense contended for by the Ap-
plicants.

It is clear that if the framers actually foresaw the possibility,
then their failure to provide for it must have been deliberate, and
therefore the argument based on their ‘‘presumed intentions” would
lead to the opposite conclusion, namely that the void ought not to
be made good by any interpretative process.

It is, however, evident that those concerned did xot foresee,
and would have refused to contemplate, a possible break-up of the
League. But even supposing them to have done so, we can see no
ground on which it could legitimately be assumed that they would
have made express provision for the continuance in force of Arti-
cle 7, of the Mandatory’s obligation to submit to compulsory
adjudication. If any assumption at all could be made, it would have
to be in the opposite sense, for the circumstances in which a break-
up of the League would or might occur, must necessarily have been
quite unforeseeable in 1920; and it is as certain as anything can
be that none of the Mandatory Powers (not only South Africa)
would have been willing to accept a obligation unlimited in point
of time to submit to adjudication, which would still remain operative
in a situation the nature of which nobody could predict. At that
date (1920) willingness to submit to compulsory adjudication at all
was a comparative rarity, and would certainly not have been
forthcoming for an obligation of limitless duration under unknown
conditions. |

What the Applicants are really asking the Court to do, is to
interpret Article 7 in the light of the presumed intentions of the

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parties as these might have been expected to be had they foreseen
not only that the League would be dissolved, but the circumstances
in which this would occur, i.e. that the League would be followed
by the United Nations, that the trusteeship system would be set up,
and so on. But it is not a legitimate process of interpretation
to read a provision on the basis of presumed intentions deduced
in the light of nothing but after-knowledge. One can only deduce
intentions in the light of what the parties might reasonably have
been expected to foresee at the time, and not on what those inten-
tions might have been had the parties had an actual foreknowledge
of the future, which they could never in fact have had.

The time for facing, and providing for, the consequences of
the break-up of the League, so far as Article 7 was concerned, was
of course not in 1920, when the Mandate was framed, but in 1945-
1946, when the League was breaking up. However, this was not
done; and we shall presently give our reasons for thinking that this
was not due to any oversight but deliberately and for good cause.
This being so, we know of no principle which, merely because mat-
ters have not in fact turned out as the parties, or some of them,
may have anticipated, would enable, let alone require, a Court of
law to take remedial action in the guise of some process of inter-
pretation.

3. Other contentions

We have now to consider certain other contentions on the
basis of which it has been claimed that the Applicant States in this
case are entitled to invoke Article 7. These are founded on more or
less extraneous considerations, such as the situation which has
now arisen in regard to the Mandate, or the provisions of other in-
struments, etc. A number of these arguments we will not deal with,
partly for reasons of space, but mainly because they do not
se2m to us to be legal arguments at all. They are no more than
motives or reasons for urging that it is politically desirable that the
Applicants should be allowed to invoke Article 7, and that the
Court should assume jurisdiction. This feeling, understandable
though it may be, cannot have any bearing on the legal issues
involved, and these must be our sole concern.

Another group of arguments which do have a legal character—
though in our view they are unsound—we shall not deal with
because they are not effectively relied upon by the Judgment of
the Court in the present case, although they were much discussed
by the Parties in their written and oral pleadings, and were directly
or indirectly relied upon by the Court in the 1950 case—such as
for instance the argument based on Article 80, paragraph 1, of the

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United Nations Charter +, or on a supposed “carry-over” or devolu-
tion of the functions, powers or rights of the League of Nations
and its Members in respect of mandated territories, in favour of the
United Nations and its Members.

The contentions we shall deal are broadly of three kinds, based
(a) on the institutional character of the Mandate, and its survival
as an institution, if not as a treaty or convention; (8) on the alleged-
ly essential and necessary function performed by Article 7 in the
scheme of the Mandate; and /c) on assurances said to have been
given by the Mandatory in 1946 in anticipation of the dissolution
of the League, and to have involved an agreement to be bound
by Article 7 in relation to any State which was a Member of the
League at the date of its dissolution.

Fa

(a) The institutional basis and effects of the Mandate

The contention advanced under this head is briefly that the
admitted survival of the Mandate as an institution necessarily
implies its survival complete and with all its parts intact, including
Article 7. If, however, Article 7 could only be invoked by Members

1 Article 80 (1) of the Charter has nothing to do with the Court’s jurisdiction.

It has however been sought to call it in aid as follows: the Article, it is said,
“conserved” the rights of States; one of these rights was that stated in Article 7 of
the Mandate instrument; therefore the right survived the League dissolution until
the mandated territory was brought under trusteeship.

The argument is not only inherently unsound, it ignores the words of Article 80 (x).
This Article is clearly an interpretation clause, commonly called a saving clause,
of a type frequently to be found in legislative or treaty instruments, designed to
prevent Statute or Treaty provisions being interpreted so as to operate beyond their
intendment.

Such a clause does not, except in a loose and quite indefinite sense, “‘conserve”’
any rights. It prevents the operation of the Statute or Treaty from affecting them
(whatever they are and whatever their content) except as provided by the Statute
or Treaty. Article 80 {1} does not maintain or stabilize rights as they existed at the
date of the Charter coming into operation, nor does it insure the continuance of
those rights or increase or diminish them. It leaves them unaffected by Chapter XII
of the Charter.

What Article 80 (1) does not say is as important as what it does say. It does not
say that rights shall continue. It does not provide that these rights shall not there-
after, until trusteeship agreements have been concluded, be subject to the operation
of law, or that they shall not terminate or be extinguished by effluxion of time,
failure of purpose, impossibility of performance or for any other reason. It does
not say these rights shall not be altered or be subject to alteration even by normal
legal processes.

It is evident that the purpose of Article 80 (1) was quite different to what has
been contended and does not lend itself by any rational method of interpretation
to support the contention advanced. The sole purpose of the Article was to prevent
any provision of Chapter XII of the Charter being construed so as to alter existing
rights prior to a certain event. .

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of the League of Nations (now non-existent) it would for all practical
purposes not have survived. Hence any State which was a Member
of the League at the time of its dissolution must be entitled to
invoke it.

This contention seems to us to involve two fallacies. The first is
the view that the survival or continued existence of an institu-
tion does necessarily entail the survival or continued existence
intact of all its parts. We wili return to this. The second is that
survival can somehow operate to add stature to the institution, so
to speak, giving it an added effect, and that a provision can survive
otherwise than in accordance with its own terms. In our opinion,
Article 7 has survived only in the sense that it has not been actually
excised from the Mandate instrument, and still stands on paper as
part of the original League of Nations Resolution or Declaration of
December 17, 1920. As part of the Mandate instrument, and on the
basis that this instrument is or represents a treaty or convention
in force, the Court must determine the application of Article 7
and may do so (and in our view may only do so) by finding that,
as it only gives rights to Members of the League, the Applicants
cannot invoke it. The Court cannot, in our view, properly apply
it in any other way, for if it still stands part of the Mandate instru-
ment, then by that very token it stands part of it in the same terms
as it was originally framed for purposes of insertion in that instru-
ment, and which have never been amended. The Court could not
therefore both rely on the continued presence of Article 7 in the
Mandate instrument, and refuse to apply it in accordance with the
terms in which it figures there.

But, correct as this is, we do not wish to rest our view on any
mere argument of logic. The substantial grounds on which we reject
the contention based on the survival of the Mandate as an institution
are first, that we regard as fallacious the view that if an institution
survives, all its parts must survive too; and secondly, that we
regard as incorrect the further view that a provision for compulsory
adjudication, such as Article 7, has such a character of inherent
necessity in the context of the Mandates System, that a continued
and substantive field of application must be postulated for it, as
an essential element of the System.

As regards the first of these questions, there is in fact no principle
of international law which requires that because an instrument or
institution survives or continues in existence, it must necessarily
do so with respect to all its parts on a completely non-severable
basis. The position is quite the contrary: international law postu-
lates no incompatibility between the survival, or continued existence
of an international agreement, organ or institution, and a termi-

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nation or cessation, on one ground or another, of some particular
part of it, or of particular functions, rights or obligations provided
for by it. This situation is indeed rather a common one, and it quite
often occurs that, for instance, an instrument remains in force, but
that some particular provision of it ceases or has ceased any longer
to be operative, because its terms have become inapplicable, or
because it is now impossible of performance, or for some other
reason.

If an inspection of a particular clause shows that, although an
instrument or institution survives as such, the clause concerned is
no longer possible of performance, or can no longer be applied
according to its terms (as is the case with Articles 6 and 7 of the
Mandate) then the prima facie conclusion must be that although
the instrument or institution otherwise remains intact, that particu-
lar clause is at an end.

The only circumstances in which it might be possible to maintain
the contrary, would be where the provision concerned was of so
fundamental and essential a character that the instrument or
institution could not function without it. Accordingly we must now
consider whether, in the legal sense, a character of inherent necessity
attaches to Article 7 of the Mandate as to justify its application in
the manner decided upon by the Court.

oe
* *

(b). The argument from necessity

We here reach the heart of the present case, for the claimed
essentiality of Article 7 of the Mandate instrument is not only the
very root from which has grown the contention that an agreement
was entered into by the Mandatory in 1946 to continue to re-
gard Article 7 as applicable (we deal with this later) : it also provides
both the root and many of the branches of most, if not all the con-
tentions in favour of the assumption of jurisdiction in the case. If
Article 7 is not an essential element of the Mandate, all the argu-
ments of any real substance presented in favour of the assumption
of jurisdiction fall to the ground. The first question therefore is
how such terms as “essential”, “inherently necessary”, etc., are
properly to be understood. Bare assertions of necessity unsupported
by any legal criteria are insufficient. The main ground upon which
the necessary character of Article 7 is predicated in the present
case, is that it was considered essential in the interests of the peoples
who were as yet unable to stand alone that there should be a
“judicial supervision” of the discharge by the Mandatory Power
of its international obligations of the sacred trust. That necessity,
it is urged, must somehow or other be given effect to.

Having regard to the view we take on the third preliminary
objection, namely that Article 7 was not instituted for the protection

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of the inhabitants of the mandated territory at all, we obviously
could not accept any plea of necessity based on the above-mentioned
. ground. But even if we took a different view about that, we should
still reject this ground. Merely to show that the provision or clause
concerned is desirable, or that it is a good thing to have it, or that
it serves a useful purpose, is not enough. Far more than that is
required. ,

In our opinion what is required is that the provision or clause be
of such a character that the instrument, institution or system it-
relates to will not function without it—quite a different thing. In
general, provisions for adjudication have not been regarded as
having this character in relation to the instruments they figure in.
In rare and somewhat special cases they may have. An example
is afforded by, for instance, the 1958 Geneva Convention on the
Conservation of Fisheries on the High Seas, in which elaborate
provisions for compulsory arbitration are built into the body of the
treaty as an essential part of the method of determining what
measures of conservation on the high seas are legitimate under the
Treaty. But except in such types of case, provisions for compulsory
adjudication, desirable though they may be in principle, have never
been regarded as a sine qua non of the operation of a treaty, and
any such suggestion would normally meet with strong opposition.
Their mere presence in a treaty, for which there may be a variety
of reasons, is no indication of necessity.

Equally the absence of Article 7 would have left the Mandate
in no different and no worse position than hundreds of other in-
struments not containing any adjudication clause. I, instead of
the Permanent Court, the Article had provided for a reference to
Arbitrators, one of whom was to be the holder of a designated
office and that office subsequently, for any reason, ceased to exist,
could it be said that the Article, being no longer capable of per-
formance, this would have gone to the root of the whole Mandate
and thus put an end to it: The answer clearly would be “No”.
In principle the same answer should be given should the Article as
framed fail of further performance for any reason. The Mandate
could still subsist without the Article, just as it could have done
if the Permanent Court had come to an end and no successor Court
had arisen.

*

A more specific ground of “necessity”, heavily relied upon, is the
fact that by reason of the unanimity rule which prevailed in the
Council of the League of Nations (including, when Mandates
questions were under consideration, the vote of the Mandatory
itself) the Council, in the last resort, could not impose its own view

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on the Mandatory. Since the Council could only ask the Permanent
Court for advisory opinions which would not be binding, and since
under Article 34 of the Statute of the Court, only States could
appear before the Court as litigants and obtain a binding decision,
therefore it was essential, so it is claimed, in order to protect the
sacred trust, for a Member or Members of the League to be able to
invoke Article 7 and bring the dispute to the Permanent Court for
adjudication.

Of all the arguments advanced in this case, this seems to us to
have the least substance. There is in our view no conceivable
warrant for supposing that it was ever intended to be a part of the
Mandates System that the Council of the League should be able to
impose its own view on the Mandatory. The existence of the una-
nimity rule shows the exact reverse, and therefore proves the
contrary.

Moreover, can it be seriously imagined, if it had been the inten-
tion of those who created the System that the Council should, in
the last resort, be able to bind or coerce the Mandatory, that this
would have been left to the chance possibility that some individual
Member of the League would be willing to intervene (in a matter
that in no way affected its own interests as a State), and to espouse
the cause of the Council, in the same way that the present Applicants
have done on behalf of the United Nations Assembly in what is
essentially a dispute between the Respondent State and the Assem-
bly? Such processes may be carried through now. They were not
even thought of in 1920, and certainly were not contemplated under
the Mandates System.

Article 22 of the Covenant, and Article 6 of the Mandate, pro-
vided for reports to be rendered by the Mandatory to the League
Council. The very fact of the unanimity rule coupled with the
further fact that under paragraph 5 of Article 4 of the League
Covenant, the Mandatory had to participate in the vote, shows that
the system was one which was intended to be worked by a process
of discussion, negotiation, and common understanding. The whole
idea of imposing anything on the Mandatory was foreign to it.

Still more foreign to the climate of opinion of that time would
have been the idea of using individual Members of the League for
the purpose. In our opinion, as we make clear in connection with
the Third Preliminary Objection, the real object of Article 7, and
the similar articles in other Mandates, was not to enable the indi-
vidual Members of the League to protect the interests of the Council
or the League vis-à-vis the Mandatory, but to enable them to protect
their own interests and those of their nationals, in the mandated
territories. Particularly in the case of the “A” and “BB” Mandates,
these could be considerable. Because the Council’s main concern
would not be over such interests, but would relate chiefly to the
conduct of the Mandate, vis-à-vis the inhabitants, it was considered

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necessary to give the individual Members of the League a direct and
independent right of action in the matter. Even if, however, we are
wrong as to that, we should still consider, for the reasons we have
given, and others we shall come to, that Article 7 was regarded as
an incidental and in no way an essential element of the Mandate.

*

There is yet another ground, possibly unavowed but evident
enough, on which the ‘‘necessity”’ of Article 7 is predicated. Looking
at the matter as a whole and in the light of its history since the
dissolution of the League, it seems to us quite clear that the Appli-
cants (and we think the Court also) are seeking to apply a sort of
principle of “‘hindsight’’ and are basing themselves on some doctrine
of ‘‘subsequent necessity’? quite unknown to international law.
What has happened is that a provision which was originally of
incidental importance and, as will be seen, practically never used,
has, because of recent events, acquired an importance, and is seen
(because of Article 94 of the Charter) to have potentialities which it
did not originally possess. In present circumstances, so it is argued,
it is only through Article 7 that any control can be achieved over
the Mandatory.

This may be understandable, but it is not a valid legal argument.
It no more affords legal grounds for reading new terms into Article 7
than there wo d be for claiming the rectification of a frontier in
a give: regiol. because, subsequent to the date when the frontier
was fixed forty years ago, valuable mineral deposits have been
discovered in that region. Subsequent events may affect the zm-
portance of a provision: they cannot affect its intrinsic legal character
which, by reason of the principle of ‘‘contemporaneity” in interpre-
tation, must be adjudged on the basis of the place the provision
occupied in the context of the system or framework it formed part
of, at the time when the latter was set up. Changes in this context
may increase the importance of the provisions concerned: they do
not alter its intrinsic legal character, or give rise to new rights in
respect of it}. |

1 Many examples could be given. For instance if, in a system of communications
governed by treaty (e.g. air navigation), the use of certain routes is subjected to
the consent of the States through or over which these routes pass, the fact that
owing to climatic or other changes other routes, the use of which is uncontrolled,
become blocked or unusable, may increase the importance of States permitting
an extended use of the controlled areas. It could not however be argued from this
that such consent need no longer be obtained. The legal character of the provisions
concerned would remain unaffected by the increased importance in the system of
the subject-matter they related to.

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In the present case, events have increased the importance of
invoking Article 7 if it can be invoked at all. But they cannot create
a legal right to invoke it which did not previously exist, or impart
to it a legal character of inherent necessity which, in the original
scheme of the Mandate, it did not have.

*

. There are a number of other factors which show quite clearly
that it would be wrong to regard Article 7 as having any essential
or inherently necessary character in the scheme of the Mandate.
We have already pointed out that it did not figure as one of the
“securities” or safeguards provided for in the League Covenant, and
which, according to Article 22, paragraph 1, of the Covenant
were to be provided for in the Covenant itself’ Provision was duly
made in Article 22 for reports to be rendered by the Mandatory
to the League Council and for setting up a Permanent Mandates
Commission to advise the Council. Presumably this was because an
obligation to report was regarded as being of the essence, as a
necessary part of any Mandate System that was to fulfil the objects
stated in Article 22. The conclusion is inescapable that it was not
regarded as similarly necessary that the Mandatory should be
obliged to submit to adjudication, and this therefore, if it was ever
thought of at all when Article 22 of the Covenant was framed, was
left to be settled outside Article 22, in the instrument defining the
terms of the Mandate. In any case, the terms of Article 22, para-
graph 1, preclude anything not provided for in the Covenant
from ranking as essential for the functioning of the Mandate

Precisely the same position was established for, and exists in
relation to the United Nations Trusteeship System. The Charter
contains elaborate provisions for administrative supervision, the
setting up of a Trusteeship Council, etc.; but any obligation to
submit to compulsory adjudication is left for inclusion, if at all,
in the individual trusteeship: “agreements”. Furthermore, while
some of these embody this obligation, others do not. This we
regard as a very significant fact. Three out of the four “‘C’’ Mandates,
which were brought under the trusteeship provisions of the Charter
of the United Nations, did not contain in the respective trusteeship
agreements any comparable clause. These three were the Trusteeship
Agreements for the territories previously held by Japan under Man-
date, and those which related to New Guinea and Nauru. In none of
these is there to be found any adjudication clause.

If Article 7 was of such an essential character in the performance
of the Mandate and in order to safeguard and ensure the interests of

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the peoples of the Mandates territories, it was just as essential that
similar provisions should be inserted in the trusteeship agreements
relating to these same peoples and territories. But what is said to
have been essential the moment before placing under trusteeship,
seems to have been considered no longer so the moment after. Yet
the basic principles of the Trusteeship System were the same as
those of the Mandates System.

This consideration of itself reveals, we think, the artificiality of the
claim that Article 7 was a fundamental necessity for the working
of the Mandate System.

It is sought to neutralize or explain this away by reference to the
different voting systems in the League and in the General Assembly
of the United Nations; in the former the unanimity rule for all
decisions, in the latter two-thirds majority on all important ques-
tions. This, so it is claimed, dispensed with the fundamental necessity
of Article 7 as soon as a mandate territory was brought under the
Trusteeship System.

If this difference in the two voting systems could have had the
significance asserted, it would seem somewhat unusual that an
Article claimed to have been of the very essence of the Mandate
System should have been discarded or omitted from these three
trusteeship agreements without a query from anyone why it was
to be dropped, and whether, if it were dropped, the safeguarding of
the ‘‘sacred trust’’ was likely to be affected and to what extent.

It is, we think, stretching credulity too far to. accept the view
(if Article 7 was so fundamentally necessary under the Mandate
System) that when these three Mandates were brought under
trusteeship, repeating in the trusteeship agreement in substance
the substantive provisions of the Mandates themselves, nothing
would have been said by anyone in the General Assembly, or that
no record would remain explaining the omission. The Article
was abandoned without a word.

The explanation advanced breaks down on other grounds. The
General Assembly has no power, except on a limited number
of matters, to make decisions relating to the administration of
trusteeship territories; it may only make recommendations. One
would think that if Article 7 were essential under the Mandate
System it was hardly less essential under the Trusteeship System.
It is not apparent what difference in principle would exist in this
respect between the two systems merely because of the voting
procedure in the League as compared with that applicable in the
Gerieral Assembly. In either system a trustee State could have
proved recalcitrant and disregarded the views of, in the one case
the Mandates Commission and the Council of the League, and in
the other the Trusteeship Council and the General Assembly. If the
need in the former system for recourse to the Court in order to be

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able to obtain judgment against the trustee State in the interests
of the indigenous peoples was essential, it would seem equally
essential under the Trusteeship System.

Moreover, one of these three Mandates, namely that previously
held by Japan, was converted into a strategic trusteeship under the
United States in respect of which the General Assembly was excluded
from all the functions of the United Nations relating thereto !. Only
the Security Council could exercise those functions, and any “‘deci-
sions’ made by it would appear to be subject to Article 27 (3) of
the Charter requiring the affirmative consent of the trustee State
—the United States itself.

If so, the foundation of the explanation falls away. If not, we
must be prepared to believe that the Members of the Security
Council when approving this particular trusteeship agreement
took it for granted—it went without saying—that Article 27
(3) did not apply, at least to the vote of the trustee State. We
think this is wholly improbable.

Furthermore, no explanation is forthcoming why, in the remaining
“C” Mandate brought under trusteeship at the same period—
that relating to Samoa—the: adjudication clause did appear,
despite the fact that its necessity had, on the Court’s reasoning,
disappeared.

What purpose, then, was the clause in this particular trusteeship
agreement designed to serve ?? And what purpose was the same
clause contained in all the other trusteeship agreements for the
territories—previously the “A” and “B’”’ Mandates—intended to
serve, since overnight, as it were, it no longer continued to be nec-
essary to serve its original purpose.

The purpose or intent of the clause did not in our view alter. If it
was not essential under the Trusteeship System neither was it
under the Mandate System.

Finally Article 7 was not, in the Court’s view, limited in its
operation to cases where the Council was unable to act and so
bring the Mandatory Power to book because of the unanimity
tule. Thus, it permitted a State, not a Member of the Council to
seek a judgment against the Mandatory State even against the
wishes of the Council or indeed the majority of the Members of the
League. In the ultimate analysis the fundamental necessity of
Article 7 is predicated on the eventuality of it being necessary
to protect the sacred trust even against the unanimous view of the

1 Article 83 of the Charter.

2 It is manifest, we think, that the purpose of the adjudication clause—
whatever that purpose was—remained the same under both systems. However,
as we will establish when dealing with the third Preliminary Objection, its purpose
was not that stated by the Court. It related exclusively to the statal individual
interests conferred by the respective Mandates upon States, Members of the League
and their nationals. These were minimal in the case of “C’’ Mandates but quite
extensive in the case of the “A” and ‘“‘B’’ Mandates.

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Council, charged, as it was, under the Covenant itself, with the
duty of supervision

In our view the fact that in three of the four trusteeship agree-
ments in relation to the previous ‘‘C” mandated territories—whose
peoples, of all those covered by Article 22 of the Covenant of the
League, were the least able “to stand by themselves’”—did not
contain this so-called fundamentally essential judicial supervision
clause, whilst in those for the much more developed peoples (the
previous ‘‘A”’ and ““B”’ Mandates) the replica of Article 7 was includ-
ed, is hardly consistent, to say the least, with the thesis of essential-
ity. At the barest minimum it is strong evidence against it.

A further point which may legitimately be taken into account in
estimating the degree of “necessity” to be attached to Article 7 is
the extent to which it has in fact been utilized. After all, a period
of forty years is not negligible; and while recognizing to the full
the justice of Judge Read’s remark in the 1950 case, that the utility
of an adjudication clause could not be determined merely by refer-
ence to how often it was resorted to, since its mere existence might
act as a deterrent to breaches of the instrument concerned, it
nevertheless remains the fact that, if the Mavrommatis cases
are treated as basically phases of the same case, the present case is
only the second occasion in forty years on which the adjudication
clause of any Mandate has been invoked, and the first, after forty
years, in the case of a “‘B’”’ or ‘‘C’? Mandate. Moreover, since the
Mavrommatis cases had reference to the interests of a national of a
Member of the League in the Mandated territory concerned, the
present occasion is the first on which any question of the conduct
of the Mandate in relation to the inhabitants of the Mandated
territory has been raised for judicial determination.

Perhaps more significant is the doubt as to the class of disputes
covered by Article 7—-the point raised in the Respondent’s third pre-
liminary objection. It would surely be difficult to regard as basic,
essential, inherently necessary and non-severable, indispensable to
the functioning of the Mandate, and therefore as something which
must by one means or another be preserved and perpetuated, a pro-
vision which, even now, the Court has only found by the narrowest of
majorities to relate to the conduct of the Mandate, rather than sim-
ply to the specific individual interests in the Mandated territory, of
the several Members of the League, and their nationals. Such mani-
fest uncertainty, continuing for so long, is not readily compatible
with the view that the provision concerned constitutes an indispen-
sible element of the system it forms part of.

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*
* *

In our opinion the various considerations discussed above can
justify only one conclusion—that the case for viewing Article 7
as an essential and inherently necessary part of the Mandates
System has not been made out. Consequently this plea cannot be
made the basis of any right of the Applicant States to invoke the
Article.

*
+ *

(c) The alleged Agreement of April 1946

The Court comes to the conclusion that an agreement ! was reached
among all the Members of the League at the Assembly meeting in
April 1946, to continue the different Mandates with reference to
the obligations of the Mandatory Powers, notwithstanding the
dissolution of the Organization.

The issue involved, is in its context whether this alleged agreement
applied to Article 7 (and the corresponding clauses in other Man-
dates), and if so with what effect. As has been pointed out earlier,
Article 7 involved a unilateral undertaking on the part of the Man-
datory alone to go before the Permanent Court at the instance of
other Members of the League. No amount of “agreement” on the
part of these other Members could have sufficed to perpetuate
the obligation of the Mandatory after the dissolution of the League.
Wkat would have been required to achieve that, z/ sufficiently
direct, explicit and unequivocal, would have been an undertaking
on the part of the Mandatory itself from which, in all the sur-
rounding circumstances an agreement between itself and each
and every other State then a Member of the League may con-
clusively be inferred. We leave aside consideration of whether
such an agreement could be within Article 37 of the Statute, since
it would exist, if it exists at all, only from a point of time subsequent
to Article 37 coming into operation. We leave aside, as well,
consideration of whether such an agreement, if established, could
fall within the provisions of Article 36 (1) of the Court’s Statute, or
if such an undertaking could be regarded as an unilateral declara-
tion under Article 36 (2) and (4) of the Statute.

We direct and confine ourselves to the real question to be an-
swered, namely, did the Mandatory, either in a speech or statement,
or by joining in a League Assembly resolution, give such an under-
taking in any terms which enable it to be held that the Mandatory

1 The Court does not indicate whether the agreement stated to have been
arrived at was “‘tacit’’ or otherwise.

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clearly engaged itself to renew or perpetuate, in relation to former
Members of the League, a compulsory adjudication clause which,
_ on its actual language was about to lapse?

Put in that way, it seems to us that the question answers itseli—
and in the negative—so soon as the relevant statements and resolu-
tions are considered.

The pronouncements relied on by the Court as regards Article 7
of the Mandate for South West Africa are a statement made by the
South African representative at Geneva on April 9, 1946, and
paragraphs 3 and 4 of the League Assembly’s resolution of 18 April,
which was adopted unanimously. We look in vain in these for
anything that would have the effect contended for.

We do not find it necessary to consider the question, pertinent
though it is, of how far purely unilateral statements made in this way
at international meetings, or how far participation in any resulting
resolutions, can give rise to strictly binding legal obligations. What
is quite clearis that the League resolution of April 18, 1946, did not
even purport to impose or record any obligations. It merely took note
of certain antecedent statements of intention, as it expressly recites.

These statements, made by all the Mandatories (not only South
Africa), were made in very general and, in some cases at least, cau-
tious and somewhat guarded, indeed limited terms. They mention
no specific obligations under the Mandates, and in our view are
no more than statements of intention made to the League on the eve
of its dissolution. Nor is the League resolution any different.

Furthermore, it seems to us clear from the general character
of the South African statement and the use of such phraseology as
“will continue to administer the territory scrupulously in accordance
with the obligations of the Mandate, for the advancement and promo-
tion of the interests of the inhabitants’’ (italics ours), that what the
Mandatory had in mind was the actual process of the administration
of the territory vis-à-vis its inhabitants, and not collateral obliga-
tions of another kind owed to Members of the League !. For instance,
we would not regard such a statement as involving any promise to
continue, after the dissolution of the League, the commercial and

1 This is borne out when the statement as a whole is read, part of which (in its
context) might be emphasized namely the words: ‘‘The disappearance of those organs
of the League concerned with the supervision of mandates, primarily the Mandates
Commission and the League Council, will necessarily preclude complete compliance
with the letter of the Mandate.”

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other rights reserved by the Mandates for the Members of the League
or their nationals, and we stress this because it is not merely Article 7
and the adjudication clauses of the other Mandates that are involved
here +. If any provisions of this character continue in force, they do
so for other reasons, and certainly not by virtue of the type of
statement made by the South African representative (and on behalf
of other Mandatory Powers) at Geneva.

Exactly the same picture emerges from the final League resolution
of April 18, 1946. Its concluding paragraph refers to “the expressed
intentions of the Members of the League now administering territo-
ries under mandate to continue to administer them for the well-being
and development of the peoples concerned in accordance with the
obligations in the respective mandates, until other arrangements
have been agreed...”, etc. (italics ours).

Coupled with earlier references to the coming dissolution of
the League in this and the statements of the various Mandatories 2,
all this could be regarded almost as a recognition that, upon this dis-
solution, the Mandates, as such, would cease to be in force, but that,
pending other arrangements, the territories concerned would, in
relation to their inhabitants, continue to be administered as z/ the
Mandates were still in force, or on the same basis as that of the Man-
dates. What the League was concerned with was not specific obli-
gations owed by Mandatories to States nor the rights or interests of
States or their nationals but with the interests of the indigenous

1 Indeed it is open to argument whether all the provisions of the Mandate in-
struments were consistent with the provisions of the Charter of the United Nations
by the terms of which most States Members of the League were already bound.

2 It will be useful to summarize the manner in which each of the other Mandatory
Powers present stated their intentions as to the future observance by them of
their obligations (the italics are ours). Thus, Great Britain stated its intention
was to continue to administer ‘“‘in accordance with the general principles of the
existing Mandates”; France that it intended ‘‘to pursue the execution of the mission
entrusted to it”; Belgium that it would remain fully alive to the obligations de-
volving upon Members of the United Nations under Article 80 of the Charter;
New Zealand that the dissolution of the League did not diminish her obligations
“to the inhabitants of the territory ... [which] would continue to be administered
in accordance with the terms of the Mandate for the promotion and advancement
of the inhabitants’; whilst Australia stated that the League’s dissolution would
“not be regarded by it as lessening the obligations imposed on it” by the Mandates
System, which it regarded as having full force and effect. Moreover, when on 12 April
1946 the draft resolution was in the committee stages and adopted for submission
to the Assembly of the League, the representative of France (no one in any sense
expressing any other view) stated that its territories would continue to be admini-
stered in the spirit of the Covenant and of the Charter.

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peoples, and to be assured of “‘the continued application of the
principles of the Mandate System” 1.

However that may be, it is quite clear to us that these statements
and resolutions cannot be regarded as constituting binding under-
takings to continue to apply all the provisions of the Mandate, inte-
grally, and irrespective of how any particular clauses would be
affected by the dissolution of the League; and we are unable to see
how a Court could infer from them an undertaking of any kind, let
alone the indefinite prolongation of a jurisdictional obligation about
to lapse according to its terms. For this, we think much more would
have been required, something explicitly directed to that obligation.
It is one thing, on the basis that the dissolution of the League might
be regarded as terminating the whole Mandates System (which is
what we think those at Geneva had in mind), to imply (on that basis)
from what was said, an undertaking to continue to apply those
provisions of the Mandate which had reference to the inhabitants
of the territory, and were not, according to their terms, directly
dependent on, or harnessed to, the continued existence of the League
or of League Membership. It is quite another thing to draw similar
implications where it is not merely a matter of keeping the system
as such alive, despite the termination of the League, but of also
keeping alive particular clauses, such as Article 7, specifically
related to the existence of the League or the fact of League Member-
ship. Here we think that the limits of permissible implication are
reached. Nothing short of an undertaking specifically directed to
the clause concerned, or to the class of clause, would have sufficed
in relation to this type of provision. No such thing is to be found in
the South African statement, or in any of the statements of other
Mandatories or in the relevant League resolution. Indeed, as we
have pointed out, the explicit references to, and only to, the
administration of the territory in the interests of the inhabitants,
constitutes a definite contra-indication.

In the case of the Union of South Africa, another consideration
makes this conclusion even clearer. In both the South African
statement and in the League resolution of April 18, 1946, the refer-
ences to what was intended are stated to be in view of or pending
other arvangements—in short a temporary situation was envisaged.
But it is quite clear from the express language used in the South

1 See statement of representative of China when presenting the draft resolution
in Committee, L. of N., O. J., Spec. Sup. at p. 79.

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African statement, that what the Union Government had in mind
were arrangements for the incorporation of the Mandated territory
in the territory of the Union; and consequently, as had already been
foreshadowed by the Union in earlier statements, that the territory
would not be, or at least was most unlikely to be, brought under the
United Nations trusteeship system. Whether this was politically or
otherwise a desirable attitude for the Mandatory to take up, is not
for us to say. The fact is that it did so, and the legal conclusion we
draw is that it is quite inconceivable that a State which was aiming
at the incorporation of the Mandated territory in its own territory
could possibly have been willing, or be thought to have been willing,
or to have been intending to imply willingness, simultaneously to
perpetuate, possibly indefinitely, an obligation of compulsory juris-
diction which, on its term, was just about to become inoperative.

Of course the question of Article 7 (and the corresponding pro-
visions of other Mandates) was never specifically raised at Geneva.
Nor indeed is there the slightest evidence that its provisions were
in the minds of the representatives of the Member States. The
Court’s finding on this part of the case implicitly assumes that,
had it been, the various Mandatories would all immediately have
agreed to the continuance of this obligation. We see absolutely
nothing in the record to justify, and a good deal to negative this
assumption—even in the case of Mandatories other than South
Africa. In the case of the latter, we think the inherent probabilities
are so obviously against it, as to place the matter virtually beyond
discussion. The general merits of such an attitude are not for us to
pronounce upon. The legal position is that if, in view of the disso-
lution of the League, any Mandatory had been asked explicitly to
agree to continue to apply Article 7 in respect of ex-Members of the
League, it was within the legal competence of any such Mandatory
to refuse—for if an obligation is about to become inoperative as, on
its own terms, Article 7 was, its renewal or perpetuation can only
be by consent. Consequently, if there are grounds (as there clearly
are) for thinking that South Africa, on an explicit raising of the
matter, would in fact have refused consent—or not improbably
would have done so—then it obviously becomes quite impossible to
imply from the Union’s Geneva statement any undertaking to
accept—even if such any undertaking could otherwise be implied
from those statements, which in our view it cannot be.
531 JOINT DISS. OPIN. JUDGES SPENDER AND FITZMAURICE

Finally, it is obvious that any undertaking to continue with the
obligations of Article 7 in relation to ‘‘ex-Members’’, or “former
Members”, of the League, would have needed precise definition.
Just what States were to be regarded as coming within these cate-
gories (original Members, Members at the date of dissolution,
countries at any time Members, Members also Members of the United
Nations, etc.)? The moment the League was dissolved, there would
evidently be more than one class of State which would have at least
a possible claim to be considered. The question of what precisely are
the entities to which any obligation to have recourse to compulsory
adjudication relates (and therefore what precisely are the entities
entitled to invoke it), is always and necessarily fundamental to the
scope of the obligation. This can never be presumed: it requires to
be defined or stated; and this alone is a reason why an implied
undertaking by the Mandatory in relation to an uncertain class of
beneficiary cannot be inferred from the statements and declara-
tions of 1946.

*

The conclusions we arrive at above as to the correct scope and
interpretation of the statements made, and the resolution adopted
at Geneva in April, 1946, are amply confirmed by certain other
elements in the history of the matter, to which we now come.

*
* *

(d) The general treatment of the Mandates question in the period
1945-1946

The course of dealing with the question of Mandates, both in the
United Nations and in the League, during the period 1945-1946,
serves to confirm the conclusions we have arrived at in the preceding
sections of this part of the case, both generally and, more particu-
larly, as regards the effect to be attributed to the statements made
and the resolutions adopted at Geneva in April, 1946. It also confirms
the view we have already expressed that the failure to deal more
explicitly with the question of the position of the Mandates after
the dissolution of the League, and especially the failure to make any
provision for the situation which would arise if any mandated
territory, not being one that had attained independence, was not
placed under the United Nations trusteeship system, was not per
incuriam but deliberate.

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(x) In the first place it emerges quite clearly from the record that
the whole approach of the United Nations to the question of the
activities of the League of Nations was one of great caution and
indeed of reluctance. It is crystal clear! that there was a definite
rejection of any idea of what might be called a general take-over
or absorption of League functions and activities. We have al-
ready mentioned in another connection that in the United Na-
tions Assembly resolution providing for the transfer of certain
functions and powers of the League, and for ensuring (subject to
certain reservations) the continued exercise of its technical activities,
the subject of the League’s political functions such as, inter alia,
those relating to Mandates, was dealt with quite differently. In this
field the Assembly was only willing to act upon a specific request
of the parties to assume the exercise of functions of the League, and
even if such a request were received (none ever was) the Assembly
was only willing to ‘““examine”’ it, or “‘submit [it] to the appropriate
organ of the United Nations’ —not exactly an enthusiastic attitude.
As stated, no such request was ever made, and no political functions
of the League were, as such, taken over or assumed ?, though of
course in a number of ways, parallel functions were assumed by the
United Nations under its own Charter, e.g. in the sphere of peace-
keeping.

(2) The United Nations did not therefore take over the League
Mandates system as such, or any specific functions in connection
with it. On the other hand, this was one of the matters which was
“paralleled” in the Charter, namely by the institution of the United
Nations trusteeship system (Chapters XII and XIII), and by the
other provisions in the Charter relating to non-self-governing territories
(Chapter XI and Article 73).

(3) In short—and we wish to stress this—there was from the start
an election (choice) on the part of the United Nations to deal with
the question of non-self-governing territories (a category under which
we think the Mandated territories—or at the least the “B” and “C”
territories—unquestionably came) by means of the provisions of
Chapters XI, XII and XIII of the Charter, and not by taking over,
and supplementing or modernising, the League Mandates System.

1 See Summary Records of the Preparatory Commission of the United Nations
set up at the end of the San Francisco Conference, U.N.P.C., Committee 7, pp. 2-3
and 10-11.

2 This is one reason why we think that the view expressed by the Court in its
1950 Opinion, to the effect that the supervisory functions of the former League
Council passed to the Assembly of the United Nations which was entitled to exer-
cise them, was definitely wrong.

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(4) This was a deliberate policy, as is shown by a number of
things. One of the most striking is the fact that, as the Court con-
firmed in its 1950 Opinion, those who framed the Charter created no
obligation under it for Members of the United Nations administering
Mandated territories to bring these into the trusteeship system. The
San Francisco Conference did, on the other hand—and this again we
stress—by means of Chapter XI of the Charter (and more particu-
larly by Article 73 which we shall consider later) create a position
which, according to our view of it, involved that any Mandated
territory not placed under trusteeship must be dealt with by the
Mandatory as a non-self-governing territory under Article 73 of the
Charter, in respect of which the obligations (including the reporting
obligations) of that provision must be carried out.

(5) It is clear that the Members (or prospective Members) of the
United Nations at San Francisco and thereafter, looked to the
bringing into trusteeship of all mandated territories other than such
as attained independence. But the deliberate character of their
decision (evidenced by their conduct} not to make any provision
for the possibility that this expectation might not in every case be
realised (apart of course from the provision made by Chapter XI and
Article 73), can be seen in relation to the Mandate for South West
Africa from the statement which the representative of the Union of
South Africa made on 11 May 1945 in Committee [1/4 of the San
Francisco Conference +. In this he indicated in the clearest possible
terms the intention of the Union to claim the incorporation of the
mandated territory in the national territory of the Union. Moreover,
we see no reason to doubt the statement made on behalf of the Re-
spondent State (in the written Memorial setting out its preliminary
objections) to the effect that the declaration which the Union Gov-
ernment made at San Francisco included (though this does not
appear on the record) an intimation that the Union Government
must not be held ‘to have acquiesced in the continuance of the
Mandate or the inclusion of the [mandated] territory in any form of
trusteeship under the new International Organization” ?. The fact
of this South African Statement, which was long and extremely ex-
plicit, coupled with the fact that Chapter XII of the Charter, despite
its various references to the mandated territories, deliberately re-
frained from imposing any obligation to bring them into trusteeship,
makes it impossible, we think, to suggest there was any misapprehen-

1 Summarily recorded in U.N.C.I.O. Docts,, Vol. 10, p. 434. The full statement,
the accuracy of which has not been challenged, and which accords with an unofficial
verbatim record in the possession of the U.N. Secretariat is given in the Respondent’s
written Preliminary Objections, pp. 25-26—and see footnote 1 on page 26.

2 See footnote 1 on page 26 of the Respondent’s written Preliminary Objections.
It has equally not been contested that this further passage was in fact included.

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sion, or to argue, on that ground, that the Court should, by judicial
action, make provision for a case which the framers of the Charter
did not see fit to provide for themselves—presumably because they
hoped it would not occur, or were prepared, if it should occur, to
leave to the application of Article 73 of the Charter. The fact that, in
the event, South West Africa was the only mandated territory not
brought into trusteeship, obviously cannot be a legal ground for
dealing with this territory on any different basis from that which
would have obtained if its case had been the rule and not the ex-
ception. It cannot, in law, be a question of imposing a sanction on
the Mandatory for not having followed the same course as its fellow-
mandatories when it was under no legal obligation to do so. It can
only be a question of establishing what are the legal consequences of
this, having regard to the dissolution of the League. This brings us to
our next point.

(6) The possibility that some mandated territories might not
be brought into trusteeship was not the only one accepted by
those attending the San Francisco Conference—they also took
the risk that the termination of the League might, unless specific
provision were made for this, affect the continued applicability of
particular clauses of the mandates, clauses which, by their terms,
were geared to the existence of the League and of membership of
the League. This risk they must be presumed to have run with
their eyes open, since the coming termination of the League, by
one means or another, was a political aim and intention of all those
Members of the League (including the Applicant States) who were
present at San Francisco.

(7) There was a sufficient discussion of the whole question of
Mandates (as also at Geneva in April 1946, to which we shall come)
to make it legitimate, and indeed necessary, to assume that those
concerned were familiar with the various instruments of Mandate,
and were aware that certain clauses of these instruments could not,
according to their terms, function or remain operative on the same
basis after the termination of the League, and the termination of
League membership, unless express provision were made to meet
the case; and accordingly that such express provision would have to
be made, or else any consequences involved would have to be accept-
ed. But, amongst other omissions, no provision was made to meet the
fact that, after the termination of the League there would be no
Members of the League at all, and therefore no States which could
invoke Article 7 according to its terms, if the right to do so was
(as in principle it must be) confined to States of the class specified
in it.

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(8) If June 26, 1945, the date of the signature of the Charter,
represented in practice the last occasion on which, under the Charter
. itself, any provision could be made for the case of a mandated
territory not being placed under trusteeship, or for meeting any
problems that might be created by the coming dissolution of the
League, it was by no means the last occasion of any kind on which
something could have been done about these things. There was still
the occasion of the dissolution of the League itself. Since a large
proportion of the Members of the League (including the Applicant
States) were also Members of the United Nations, and vice-versa,
the basis for a concerted policy existed. There was equally the
occasion of the adoption of the United Nations Resolution XIV (I)
of February 12, 1946, already referred to, stating the terms on
which the United Nations would be prepared to take over political
functions from the League, such as those relating to mandates.
These terms, as we have seen, were not encouraging—a fact
significant in itself. But it remained open to the League (not dissolved
until April 1946) or tothe parties to any “international instrument”
to make a formal request to the United Nations to assume the
exercise of any such functions. No such request was ever made.

(9) It was not only not made, but when, at Geneva in April 1946,
the representative of China presented a draft Resolution (quoted in
full in a footnote on p. 538 below) the effect of which would have
been to request the United Nations to take over the supervisory
functions of the League Council in respect of the conduct of the
Mandates, this draft was not proceeded with. Instead, the Resolu-
tion which we have considered under sub-section (c) immediately
preceding this one, was adopted (for text, see the same footnote
on p. 538)'. The question of the United Nations taking over func-
tions from the League Council is of course not the same one as
that of the right of former Members of the League to go on invoking
the adjudication clause of the Mandate. But they are closely related.
Both hinged on the dissolution of the League, and the two As-
semblies appear to have been equally indifferent to both. The
one question was at least raised by the original Chinese resolution.
The other was never raised at all, and there is no indication that
anyone was interested in raising it; yet it is impossible (and it
really has to be excluded in point of law) that those concerned were
unaware of the terms of provisions such as Article 7, or of the

1 The contrast between the original Chinese draft and the one eventually adopted
constitutes an additional reason why we find it impossible to accept the view
taken by the Court in 1950, that the functions of the League Council in respect
of Mandates had passed to the United Nations; for this was the very thing
which the original Chinese draft proposed but which was not adopted.

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effect that the dissolution of the League would have on these pro-
visions, if no counter-action was taken.

(10) We have already drawn attention to, and cited, the very
general and guarded types of statement made about the Man-
dates at Geneva. But even before that, the matter had been
further discussed in the Preparatory Commission of the United
Nations set up at the close of the San Francisco Conference to
function during the interim: period before the Charter would
come into force, and before the first part of the first United Nations
Assembly would be heldin January 1946, and to prepare for this. In
this Commission, most of those who met at Geneva to dissolve the
League were represented. They were therefore aware of what had
taken place in the Preparatory Commission. The Commission set
up an Executive Committee. This Committee prepared a Report
in view of the first session of the United Nations Assembly. Part III
of Chapter IV of this Report proposed the setting up of a Temporary
Trusteeship Committee to carry out, in the intervening period,
certain of the functions that would eventually fall to the United
Nations Trusteeship Council. One of the functions the Executive
Committee proposed for such a Trusteeship Committee—and we
draw particular attention to this—was to

“advise the General Assembly on any matters that might arise
with regard to the transfer to the United Nations of any functions
and responsibilities hitherto exercised under the Mandate System’’.?

Amongst the responsibilities which, according to the argument
of the Applicants in this case, was essentially necessary for the
functioning of the Mandates System, was the function of “judicial
supervision” of the Mandate. It is therefore instructive to note what
happened to this proposal. If was not adopted by the Preparatory
Commission, and was replaced by a recommendation to the United
Nations Assembly that it should adopt a resolution calling on
Member States administering Mandates, to submit trusteeship
agreements in respect of them for consideration at the second part
of the first Assembly in the autumn of 19463, a recommendation
eventually adopted by the Assembly, in Resolution XI of Febru-

ary 9, 1946.
(11) Yet in the discussions in the Preparatory Commission in
December 1945, which preceded the formulation of this recommen-

1 Document PC/EX/113/Rev. 1, Chapt. IV, Sec. 2, para. 3, p. 55. A Sub-Com-
mittee of the Executive Committee included in its report to the latter {inter alia)
the following observation: “Since the questions arising from the winding up of the
Mandates System are dealt with in Part III, Chapter IV, no recommendation is
included ...” Zbid., Chapt. IX, See 3, paras. 1, 2 and 5, p. IIo.

2 Jbid., para. 4 (IV), p. 56.

* Document PC;20, Chap. IV, Sec. 1, p. 49.

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dation, there were further indications that no automatic transfers
of Mandated territories into the trusteeship system could be ex-
pected. Speaking on December 20, 1945, the representative of
Australia, while expressing sympathy with the aims involved,
denied that there was any obligation to bring mandated territories
into trusteeship, and insisted that in this respect there was no
difference between these territories and any other form of dependent
territory’. The representative of South Africa on the same oc-
casion? and again three days later* once more made the most ex-
plicit reservations.

(12) When the Assembly itself met in January 1946, all this was
repeated. The representative of South Africa made further similar
statements (January 17 and 22)*. The representative of the United
Kingdom (same day) announced a decision to start negotiations
in respect of Tanganyika, the Cameroons and Togoland, but ex-
pressed willingness actually to bring them into trusteeship only if
satisfactory terms could be negotiated, and reserved the case of
Palestine entirely, for special reasons 5. The representative of France
(19 January) said that the French Government intended ‘to carry
on with the work entrusted to it by the League of Nations”, but
believing that a transfer into trusteeship “would be in the spirit of
the Charter”, it was prepared to “study” the matter, subject to
certain reservations *®. More than one statement referred to the
necessity for obtaining the approval of the peoples of the mandated
territories. Other statements of willingness in principle to place
mandated territories under trusteeship were made on behalf of
Australia, Belgium and New Zealand.

(13) Inits resulting Resolution XI of 9 February, the Assembly in
“inviting” the negotiation of trusteeship agreements, welcomed

“the declarations made by certain States administering territories
now held under Mandate, of an intention to negotiate trusteeship
agreements in respects of some of these territories...”’ (italics ours’).

Even if one attributes the wording of the italicised passages
partly to the existence of special cases such as those of Palestine

1 U.N.P.C. Committee 4, Summary Records, p. 39.

2 [bid., p. 4

3 U.N. P.C. journal, p. 134.

4 G.A.O.R., First Session, First Part, 12th plenary meeting, pp. 185-6; and
ibid., Fourth Comm., 3rd meeting, p. 10.

5 Ibid., rth Plenary, pp. 166-167.
$ Ibid., 16th plenary, p. 231.
7 U.N. Document A/64, p. 13.

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and Transjordan (about to attain independence), and to the fact
that Japan, which administered a number of mandated territories
in the Pacific, was then neither a Member of the United Nations,
nor present at the Assembly, nor to be present at Geneva in April,
this was not the whole picture. There was also the fact that the
statements made on behalf of South Africa could not possibly have
been construed as “declarations of intention” to negotiate a
trusteeship agreement for South West Africa; and it was in any case
clear that, both with regard to that territory and other mandated
territories, the position was uncertain, and would depend (even
in the case of those territories in respect of which declarations of
intention had been made) on the negotiation of satisfactory trustee-
ship agreements.

(14) Such then was the position when the Members of the League
of Nations met at Geneva in April 1946, many of them having
been represented at the United Nations proceedings above—
mentioned, and all of them aware of these. What transpired
has already been described under the previous section (c)
of this part of our Opinion. The contrast between the original
draft Chinese resolution, presented by the representative of China
but not proceeded with, and the eventual resolution of the League
Assembly is so glaring and revealing, that we set out both resolutions
verbatim in a footnote?. |

*
* *

1 The original Chinese draft 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 transferved to the United Nations, in order to avoid a period of inter-
vegnum in the supervision of the mandatory regime in these territories [italics
added];

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

The Resolution finally adopted by the League Assembly was the following:

“The Assembly :

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

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

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We shall state presently the reason which we think underlay the
attitudes both of the United Nations and of the League Assemblies.
Here we will state what appears to us to the legal significance of
these attitudes, so far as the present affair is concerned.

It seems to us impossible, on the facts as we have described
them, and looking at the matter as a whole, to take any other
view than that both the United Nations and the League Assemblies
were fully aware of and alerted to the whole implications of the
mandates question, and of the dissolution of the League relative
to that; or that alternatively they must, on the facts (and even
simply as a presumption of law), be held to have been. Apart
from what was provided for by Article 73 of the Charter (see next
section), they deliberately refrained from making provision for the
situation which might arise if any mandated territory was not
placed under trusteeship, or if there were long delays—although
forewarned that this very situation might arise. They refrained
equally from any attempt to adapt the Mandates to the situation
arising from the termination of the League and of League member-
ship.

They not only “refrained’’, but at least twice (proposal of the
Executive Committee of the Preparatory Commission of the United
Nations—head (ro) above; and original Chinese resolution at Gene-
va) they rejected proposals for a transfer of League functions res-
pecting Mandates to the United Nations. Acceptance of either of
these proposals would naturally not, of itself, have got over the
difficulty about cessation of League membership. It would probably
have brought that question into the open, but this is not the point.
Our concern here is simply to show that the two Assemblies were
(exept for Article 73 of the Charter) unwilling to provide in any spe-
cific way for the consequences of the termination of the League and its
membership, or for a possible eventual failure to bring a mandated
territory into trusteeship. In this lies the key to the whole matter.

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;

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

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

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It is the key to the whole matter because it is strikingly
evident that the two Assemblies (and the Applicant States were
Members of both) relied, and preferred to rely, on the hope or ex-
pectation that the mandated territories would eventually be brought
into trusteeship. Whether this was a reasonable assumption in the
case of South West Africa, considering the declarations that were
made on behalf of the Union Government, is another matter. The
fact remains that it was relied upon, in the full knowledge of facts
from which it was manifest that the expectation might not be
realized, and of the fact that the Mandatory was under no legal
obligation in the matter.

It seems to us fairly clear as a matter of reasonable inference,
that an important part of the reason for this attitude was the desire
to avoid even the suggestion that any mandated territory might
not be brought into trusteeship; or, by providing for the situation
that might arise if that was not done (and if the League had in the
meantime been dissolved) to appear to be countenancing such a
situation by providing for it, or to be giving grounds on the basis
of which any Mandatory could contend that, express provision
having been made for continuing the Mandates as Mandates, no
further action was required.

In short, given the view that they took of the whole matter,
those concerned thought it unnecessary to provide for this situation
and better policy not to. This course having been chosen, and the
possible consequences it entailed accepted, there is no legal principle
which would enable a Court of law to put the clock back and, by
judicial action, make provision for a case which those concerned
elected not to deal with, for reasons which appeared to them good
and sufficient at the time.

The fact that subsequent events have shown the policy to be
mistaken in the particular case of South West Africa, cannot of
course provide any justification for judicial rectification. This
would be to apply a principle of “hindsight’’ which we have al-
ready said is not a legitimate one. The fact is that, making the
best political judgment they could in the circumstances of the
time, the two Assemblies pursued the course they thought was wisest
—norisit certain they were wrong, considering the matter asa whole’.
It is not for a Judge today, in the light of the greater knowledge
granted him by the passage of time, to do more than apply the law as
it is, in the light of the facts as they stood when the situation he is
dealing with arose.

1 It may well have resulted in former mandated territories being placed under
trusteeship that otherwise might not have been. But if a given course has advan-
tages, its corresponding disadvantages must, in law at any rate, be accepted.

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+
* *

But it would be doing an injustice to those concerned to suppose
that they were indifferent to their responsibilities .They were not.
They knew of the protective cover which was provided by Article 73
of the Charter, and to this we now come.

#
* *

(e) The role of Article 73 of the United Nations Charter

It must be evident to anyone who reads Article 73 of the United
Nations Charter, in conjunction with Article 22 of the League
Covenant, that the provisions of the one were fashioned to a major
extent upon those of the other. The similarity not only of concept
but of language is striking, and in order to show the affinity between
the two, we reproduce the text of the first paragraph of each in a
footnote ?. ;

Article 73 provided for-a number of obligations for Members of
the United Nations administering non-self-governing territories,
to some of which we shall refer, and in particular it provided (by
its sub-paragraph /e)) for a reporting obligation to the United Na-
tions which, if less stringent and comprehensive than that provided
for under the Mandates (and under Article 6 of the Mandate for
South West Africa), was nevertheless far from negligible, as events
in the United National Assembly have amply demonstrated. This
provision (Article 73) was not in any way confined to the case of
Mandated territories, but it undoubtedly covered that case, as we
shall show.

Here then was the provision which, though set aside as irrelevant
by the Court in 1950, did in fact afford a reasonable measure of
coverage {in so far as it was considered necessary or desirable to
provide any) against the possibility that some Mandated territory

1 Article 22, paragraph 1, of the League Covenant was as follows:

“To those colonies and territories which aas consequence of the late war
have ceased to be under the sovereignty of the States which formerly governed
them and which are inhabited by peoples not yet able to stand by themselves
under the strenuous conditions of the modern world, there should be applied
the principle that the well-being and development of such peoples form a
sacred trust of civilisation and that the securities for the performance of this
trust should be embodied in this Covenant.”

The opening and governing paragraph of Article 73 of the Charter reads:

“Members of the United Nations which have or assume responsibilities for
the administration of territories whose peoples have not yet attained a full
measure of self-government, recognize the principle that the interests. of the
inhabitants of these territories are paramount, and accept as a sacred trust
the obligation to promote to the utmost, within the system of international
peace and security established by the present Charter, the well-being of the
inhabitants of these territories, and to this end: ...”

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might remain outside the trusteeship system or remain outside for
a prolonged period !.

That Article 73 would not, in respect of such a provision as
Article 7 of the Mandate for South West Africa, have served in itself
to cure the defect arising from the termination of all League Mem-
bership can only afford further evidence of, and confirm the fact that
the Members of the United Nations never attached any particular
importance to the adjudication provisions of the Mandates, a view
equally confirmed in respect of the League Assembly by the
character of its final resolution on Mandated territories of April 18,
‘1946, already considered.

The view that Article 73 does not apply to Mandated territories is,
we think, legally untenable, at any rate as regards any territories
under “B” or “C” Mandate, having regard to the affinities of
Article 73 with Article 22 of the Covenant. The former was clearly
intended to apply to a much larger range of territories than the
relatively small class of the Mandated territories; but it would
be a strange consequence if a concept devised expressly to relate
to that class should, when extended to other territories, thereby be
held to have ceased to apply to the class it was originally devised
for, especially given that the States administering territories
in this class were under no obligation to bring them into the trustee-
ship class. This would indeed have been to leave them high and dry
in a sort of international no-man’s land.

We do not believe this was the intention of the Charter, and the
reference to Chapter XI (containing Article 73) made in paragraph 3
of the League Resolution of April 18, 1946 (see pp. 538-539) shows
that the view we have expressed was equally the view taken at the
time. The reference to Chapter XI would otherwise be meanincless.

Article 73 declares itself to relate to “territories whose peoples
have not yet attained a full measure of self-government’’—a defini-
tion precisely covering Mandated territories of the ‘“B” and “C”
class. In almost the language of Article 22 of the Covenant, its
major obligation is “‘to promote to the utmost ... the well-being of
the inhabitants of these territories’, and to assure ‘‘their political,
economic, social and educational advancement’. Again, the refer-
ence it contains to the “‘sacred trust” constitutes the very hall-mark
of the whole Mandates concept. These affinities cannot be ignored,
nor is their legal import open to serious question we think.

1 The striking thing is that from early in its existence the United Nations As-
sembly was unwilling to allow that Article 73 related to Mandated territories.
It is easy to see why: to have received them might to some extent have weakened
the case for insisting that the Mandated territories must be brought into trustee-
ship, and must not be dealt with like other non-self-governing territories. This is
a matter of opinion: but as a matter of law, it can only confirm us in the view that
the Assembly’s attitude in respect of Mandated territories was throughout based
on a policy of “‘trusteeship only’’, and this has extended even to denying the
applicability of Article 73 to Mandated territories not placed under trusteeship.

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It is quite clear that their import was not doubted at Geneva in
April 1946, and that the decision of the League Assembly to make no
specific provision in respect of Mandated territories was in part based
on this. Nothing could in fact be clearer on the basis of the very
Resolution of April 18, 1946, on which the Judgment of the Court
relies in order to reach a different conclusion. This Resolution
recited, inter alia, that “Chapters XI, XII and XIII of the Charter of
the United Nations” (italics ours) embodied ‘principles correspond-
ing to those declared in Article 22 of the Covenant of the League”;
and this was one of the grounds on which the League Assembly was
content merely to ‘take note of the expressed intentions’’ of the
Mandatory Powers to continue to administer ‘‘for the well-being and
development of the peoples concerned”’, etc.

Exactly the same point was made by the representative of
Australia on the same occasion when, after saying that the Austra-
lian Mandated territories would eventually be brought into trustee-
ship, and would in the meantime be administered in accordance
with the Mandates, he continued:

“Until then the ground is covered not only by the pledge which
the Government of Australia has given to the Assembly today, but
also by the explicit international obligations laid down in Chapter XI
of the Charter... There will be no gap, no interregnum to be provided
for’’ (italics ours) !

The point made in this statement about there being ‘no gap,
no interregnum’’ may be compared with the language of the original
Chinese draft resolution reproduced in the footnote on p. 538 above.?
The same point was repeated by the representative of Australia
in the General Assembly of the United Nations in November 1947,
even more explicitly, as follows:

«6

.. we have put into the Charter a special Chapter dealing with
non-self-governing territories. This was in order to meet the position
of territories such as mandated territories which are not placed
under the trusteeship system—a territory like South West Africa...
Therefore there is no gap in the Charter of the United Nations.” *

1 L. of N. O. J., Special Supplement No. 194 at page 47.

2 Jt is evident, we think, that at least some of the Mandatory Powers did not
share the view of the representative of China as indicated in his original resolution,
that there was an interregnum; and this explains the fact that another and quite
‘different resolution was introduced. It explains also the significance of the reference
to Chapter XI in the League. Assembly resolution, a reference which was
disregarded by the Court in 1950 and continues to be disregarded by it.

3 UN. Records General Assembly (2nd Sess. Plenary Vol. 1, 1947 at 587-588).

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Indeed at San Francisco in 1945 the President of Commission II,
Field Marshall Smuts had stated that Chapter XI

“.. applies the trusteeship principle to all dependent territories
whether they are mandates, whether they are territories taken from
defeated countries, or whether they are existing colonies of Powers.
The whole field of dependent peoples living in dependent territories
is now covered.” 1

That this view was commonly held in 1946/1947 and immediately
thereafter appears from the Written Statement of the United
States presented to the Court in 1950 (1950 Pleadings, Oral Ar-
guments, Documents at pp. 124 et seq.); of the Government of the
Philippines (at pp. 249 ef seg.); and from the statement made to the
Court on behalf of the Secretary-General of the United Nations

on the same occasion ?.
*

It seems to us ‘that the conclusion, and the only conclusion,
that can be drawn from all this is the following. First, there is
absolutely no warrant for implying from anything that was said
or done at Geneva in April 1946, any undertaking, express or
implied, by the Mandatory, or any general agreement, in relation
to Article 7. The indications are quite to the contrary. Article 7 and
its subject-matter was far removed from the minds of the Members

1 Doc. 1144 11/16 U.N.C.I.O. Vol. 8, at p. 127.

2 Ib. at 224. We also quote more fully from the statement made by the represent-
ative of Australia to the Assembly of the League on April 11, 1946, as follows
(italics ours):

“The Charter of the United Nations has now extended its basic paragraphs
in two directions. First, the Charter applies to every dependent territory adminis-
tered by Members of the United Nations the principle that the primary object
of administration must be to promote the welfare and development of the
inhabitants of dependent territories, and that the administering authority
should render to an international authority an account of its administration.
This is laid down in Chapter XI of the Charter. Amongst other things, each
administering authority under that Chapter undertakes to supply to the
United Nations information concerning economic, social and educational
conditions in its dependent territories.

Secondly, the Charter provides in Chapters XII and XIII for the estab-
lishment in relation to certain categories of dependent territories of an inter-
national trusteeship system. The basic objectives ave the same as in Chapter XI
for dependent territories generally, but, under the International Trusteeship
System, a further step is taken with power not merely to consider reports
made by administering authorities but to visit trust territories and examine
at first hand the manner in which the administering authorities are discharging
their trust. These powers of inspection go beyond what the Covenant permitied
to the Permanent Mandaie Commission. The trusteeship system, strictly so
called, will apply only to such territories as are voluntary brought within its
scope by individual trusteeship agreements.” (L. of N. O.S. Special Supplement

No. 194, p. 47.)

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of the League (and of the United Nations). There was during the
course of the whole debate not one word about judicial supervision
or adjudication. An examiniation of the record of the debates
together with the text of the resolution of the Assembly makes it
clear that the subject matter to which alone they related was the
obligations of the Mandatory Powers to the indigenous peoples—
the substantive obligations, which are those to be found in Article 22
of the Covenant and repeated in the different Mandates.

. Secondly, it is clear that all concerned decided to rest content
with what they had done, namely with creating the trusteeship
system, into which Mandated territories could be brought (but
without any legal obligation to do so); with establishing the régimé
of Chapter XI for non-self-governing territories, which included
Mandated territories not brought into trusteeship, but did not
include provision for compulsory adjudication; and with taking
note of the declarations of intention made by the Mandatories
to continue (pending other arrangements) to administer the terri-
tories in general accordance with the Mandates, for the well-being
of the peoples of the territories.

- Beyond this, those concerned were not prepared to go and
did not go. In particular they neither made, nor intended to
make—except as just stated—-any provision to meet the situation
resulting from the termination of the League and of Membership
of the League; or any provision to meet the situation which would
or might arise if, such termination having taken place, a Man-
dated. territory was not brought into trusteeship.

*
* *

_ The onus of proving the existence of an agreement entered in-
to by the Mandatory Powers in relation to Article 7 lies upon
the Applicants. In our view this onus has not been discharged.

+
* *

Conclusion on the Second Preliminary Objection : in final conclusion
on this part of the case, we revert to that aspect of the matter which
must be relevant to all arguments and counter arguments as to the
Respondent State’s obligation under Article 7—and that is the
fundamental principle of consent, given generally or ad hoc, as
being the essential foundation of the jurisdiction of an international
tribunal. This principle is not any the less applicable to an obliga-
tion to have recourse to judicial settlement contained in an instru-
ment such as the Mandate, than it is in the case of a similar obliga-
tion arising under other instruments; indeed, there are two reasons,

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which we have already mentioned, why it applies with even
greater force; namely, first, that in the case of the Mandates, the
Mandatory alone undertook, and was obliged to submit to ad-
judication at the instance of other Members of the League, and
could not itself compel a similar submission; and secondly, the
different consequences of a judgment of the present Court, due to
the existence of Article 94 of the Charter. The unilateral character
which Article 7 possesses, obviously makes it all the more necessary
to interpret it strictly when it is invoked against the Mandatory,
and not to extend its scope beyond what the Mandatory may fairly
be held to have agreed to.

It would seem that, in implying the consent of the Mandatory to
submit to compulsory adjudication at the instance of former Mem-
bers of the League, the argument based on hindsight is again being
used. It is almost conclusively demonstrable that the Mandatory,
in 1920, could not have been contemplating the eventual dissolu-
tion of the League, and that if it had done so, it would certainly
have refused to agree to any adjudicatory obligations continuing
after such an occurrence.

The scope of any consent given, must necessarily be assessed
in the light of the circumstances as known and existing at the time
when the consent was given. Equally, if that consent is to be re-
lated to future events, then it must be assessed in the light of
what could reasonably have been foreseen at the time, as to those
events. Even if there is any basis upon which a dissolution of the
League could have been predicted in 1920, that basis would neces-
sarily have been taken to be a break-up of world order—a situation
in which no State would be willing to undertake a perpetual obliga-
tion to submit to compulsory adjudication—in which indeed, the
whole processes of such adjudication might have foundered. Brief-
ly, therefore, if anything could have been foreseen, it would not
have been what actually occurred, but its exact opposite.

This is not a reasonable basis upon which consent can be predi-
cated in relation to something which the Mandatory could never have
foreseen, and therefore clearly can not be held to have consented to.

*

For all the above reasons, we hold that the Second Preliminary
Objection must succeed, because the Applicant States, by their own
act in terminating the class concerned, have ceased to belong to
the class of State entitled to invoke Article 7 of the Mandate, and
because no provision was made to substitute for this class (nor did
the Mandatory ever consent, or give an undertaking, nor was there
any agreement, to regard it as replaced by) any other class to which
the Applicant States do belong.

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VI
THIRD PRELIMINARY OBJECTION

Under this head the Respondent State denies that there is any
dispute between itself and the Applicant States, substantively of
the kind to which Article 7 of the Mandate was intended to relate,
and it accordingly claims that the condition that there should be
a “dispute” within the intention of Article 7'is not fulfilled.

Before we consider this contention, we must deal with a related
point. Article 7 requires not only that there should be a dispute,
but also that this dispute should be between the Mandatory and
“another Member of the League of Nations’. For the purposes
of this Third Objection it has of course to be assumed that, contrary
to the conclusions we have come to on the First and Second Pre-
liminary Objections, the Applicants must be deemed to fulfil the
condition of League Membership, or alternatively that the Applic-
ants are entitled to invoke Article 7 despite the termination of their
League Membership.

The question still remains however, before we consider the charac-
ter of the disputes Article 7 was intended to relate to, is there in
the present case any dispute at all, propetly speaking, between the
Applicant and the Respondent States? Both on the language of
Article 7, and that of the Statute of the Court, and equally as a
matter of general principle, what is necessary is that the dispute
in respect of which the jurisdiction of the Court is invoked should
be a dispute between the actual parties to the proceedings before
the Court.

Clearly, a dispute is not created or constituted merely by bringing
proceedings, putting in an Application or invoking a compulsory
adjudication clause—for otherwise the requirement in the clause
(and there always is such a requirement) that there should be a
dispute would .be redundant. In the present case, is there in the
proper sense, any dispute between the Applicant States and the
Respondent, other than such as-arises out of the mere fact that
proceedings have been instituted by the Applicants against the
Respondent ?

It seems to us that there is not. It is common knowledge that
the present case finds its whole fons et origo in, and springs directly
from, the activities of the United Nations Assembly relative to
the Mandated territory and the Mandatory. No one who studies
the record of the proceedings in the Assembly, and of the various
Assembly Committees and Sub-Committees which have been
concerned with the matter, and especially the Assembly Resolutions
on South West Africa which directly led up to the institution of
the present proceedings before the Court, can doubt for a moment
that the real dispute over South West Africa is between the Respond-
ent State and the United Nations Assembly, and that the Applicant

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States are in fact appearing in a representational capacity to bring
proceedings which the Assembly cannot bring for itself because,
under Article 34 of the Statute, only States can appear in contentious
proceedings before the Court.

On this ground alone therefore, we consider we would be justified
in holding that, there being no real dispute between the Respondent
State and the Applicant States in their individual capacities, this
condition of Article 7 is not fulfilled.

It is admitted that the Applicants have no direct material in-
terests involved in this case. Neither their own national interests
nor those of any of their nationals under the Mandate instrument
or in the Mandated territory are affected. They are appearing—
and this is admitted—solely for the purpose of defending or up-
holding the Mandate, in the interest not of themselves, but of the
inhabitants of the Mandated territory, and this they are doing at
the instance of the Assembly, as clearly appears from the Assembly
Resolutions of 1361 (XIV) of November 1959, and 1565 (XV) of
December 1960.

It is not for us to comment on this process, except in so far as
we have to consider what the legal consequences are. We realise
that States, parties to a treaty or convention, or who have third-
State rights under it, may in certain types of cases be held to have
a legal interest in its due observance, even though the. alleged
breach of it has not, or not yet, affected them directly. But since
we do not regard the Mandate as being a treaty or convention, or
the Applicant States as being parties to it as such (if it were one)
and since we consider them to have lost the capacity under which
they might have been able to claim any rights on a third State
basis, we could not regard them as having any legal interest in the
matter by virtue of any direct participation in the Mandate.

Even if we should be wrong as to that, however, the plain fact
is that the real, present interest of the Applicant States in these
proceedings is as Members of the United Nations, as participators
in the activities of the United Nations Assembly relative to South
West Africa, and because of the interest which, on the basis of the
Opinion given by the Court in 1950, the Assembly considers itself
to have in the question of the conduct of the Mandate. It is well
established in international jurisprudence that it is the situation
as it stood immediately prior to the commencement of proceedings
to which regard must be had. Any “dispute” which the Applicant
States then had with the Respondent State was in the United
Nations, in their capacity as Members of it, and was conducted
within the framework of the Assembly, again as Members of it.

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Nor has what has taken place in the Assembly been strictly
in the nature of a dispute, properly so-called, so much as a po-
litical conflict of views. The Applicant States have not had, and
do not have any conflict of view with the Respondent State over
and above, or different from, that which a great many of the
other States represented in the Assembly have, equally as Members
of it; and their interest in the matter is equally no different from
or greater than that of many other Members. In particular, they
have no specific individual ground of dispute with the Respondent
State outside the Assembly, as is shown by their failure to open,
or attempt to conduct, any direct negotiations with the Respondent
State through the diplomatic channel.

Throughout, up to the time of bringing these proceedings,
the Applicants have acted in their capacity as Members of the
United Nations; and tor all the difference it would have made to
the essential character of the present proceedings, these might just
as well have been brought by any other States coming within
the category of ex-Memibers of the former League of Nations.
The pleadings could have been identical, apart from the name of the
plaintiffs.

We do not consider that a dispute which has been conducted by
a State (if “conducted” is the proper term at all) solely within the
framework of an international organization, in its capacity as a
member of the organization, and by simple participation in its
activities, without the dispute ever having been taken up directly
with the defendant State outside the organization, can constitute
a dispute between States of the kind envisaged by the normal
adjudication clause.

We must therefore conclude that prior to the bringing of the
present proceedings (which was not perv se enough) there was not,
properly speaking, a dispute between the Respondent State and the
Applicant States as such, within the normal intention of a juris-
dictional clause such as Article 7 of the Mandate, and that accor-
dingly the requirement that there should be a dispute between
the Mandatory and the Applicant States is not fulfilled.

*
* 6

The defect to which we have just drawn attention is in a certain
sense a technical one, though the technicality is far from being
unimportant. But it could be cured by time and appropriate action.
We have a more fundamental reason for holding that the dispute,
or rather ground of complaint involved in the present case, is not
one contemplated by Article 7.

The Mandate (and this is still more so in the case of other categories
of Mandates) has two main classes of substantive provisions. The
first (which might be called the “conduct of the Mandate” class)

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comprises the provisions inserted for the benefit of the peoples of
the territory. The other (which might be called the “State rights
and interests” class) comprises those which were inserted for the
national benefit of the Members of the League and their nationals
{commercial rights, open door, freedom for missionary activities, etc.).

The question is whether Article 7 of the Mandate (this was a
common clause in all the Mandate), relates to both these clas-
ses of provision, or only to the latter. At first sight, on a literal
teading of Article 7, the answer might appear clear: it specifies
“any dispute whatever ... relating to the interpretation or the ap-
plication of the provisions of the Mandate”. Since we be-
lieve in the principle of interpreting provisions according to their
natural and ordinary meaning in the context in which they occur,
and (in the absence of any ambiguities or contradictions) without
reference to travaux préparatoires, we must state why we feel
unable to take the above passage at its face value, and why we
consider a reference to the travaux préparatoires to be justified in
this case, quite apart from the fact that these have in any event
been so extensively relied upon in connection with the First and
Second Preliminary Objections, that it would hardly be possible
to exclude them from consideration of the third, which is definitely
related to the others.

The phrase we have just cited from Article 7 does not give the
full sense of the relevant passage, and to obtain this a fuller citation
is required, as follows: ‘‘any dispute whatever ... between the Man
datory and another Member of the League of Nations relating to
the interpretation or application of the provisions of the Mandate”’.
Having regard to the view we take as to the meaning of a “dispute”,
and the necessity for a direct dispute between the parties to the
proceedings, in which they have an interest in their own capacity,
and not merely as Members of an international organization, the
above passage, in the context of this case, conceals an ambiguity.
The words could be read as meaning any dispute whatever hav-
ing the character just mentioned. In our view the Applicants had
not, at the critical date (that of the Applications), any interest in
the matter (even in the conduct of the Mandate) except in their
capacity as Members of the United Nations. On that ground
alone we should not regard the case as covered.

*

There is however another much more important ambiguity
which makes it necessary to enquire whether “any dispute what-
ever’ means any dispute about the provisions of. the Man-
date generally, or whether it must be regarded as being con-
fined to any dispute whatever about those provisions of the

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Mandate which affect State or national rights or interests.
This arises because of the immediately following requirement
that the dispute shall be one that ‘“‘cannot be settled by negotia-
tion”.

The implications of this phrase are, in our view, the key to the
whole question of what is covered by Article 7. “Negotiation”,
we think, as contemplated by such a provision as Article 7, means
negotiation between the parties to the proceedings before the Court.
Under the head of the fourth preliminary objection we shall give
our reasons for so thinking. For the moment we will assume,
what would certainly have been assumed by anyone dealing with
the matter at the time when the Mandate was drafted, namely
that negotiation means negotiation between, or directly for and
on behalf of the actual parties to the proceedings before the
Court.

Now a requirement that a dispute must be such as “cannot”
be settled by negotiation, necessarily implies that it be of a type
capable of being so settled, and of being so settled by negotiation
between parties competent for that purpose. If a dispute
could not be settled (i.e. is inherently incapable of settlement)
by any kind of negotiation at all between the parties before the
Court, then clearly a requirement that the dispute be one that
“cannot” be settled by negotiation would be meaningless.

By ‘settlement’, we understand final settlement, and a final
settlement to us means a settlement negotiated between parties
having competence to settle the particular dispute in a final
manner. The question therefore arises, could the Applicant and
Respondent States, by negotiation inter se, settle in any way what-
ever a dispute not relating to their own State or national rights
or interests, but belonging to the ‘‘conduct of the Mandate”
type—the sacred trust—could any settlement negotiated between
single States, such as the Applicant States and the Mandatory,
settle any question relating to the general conduct of the Mandate
itself? Could any such settlement, arrived at between the Appli-
cants and the Respondent alone, bind any other State conceiving
itself to have an interest in the conduct of the Mandate—or bind
the United Nations Assembly? Obviously not—such a settlement
might be wholly inacceptable to these other entities.

It is not, in our view, a sufficient answer to say that a settle-
ment between the Applicant and Respondent States would have
been a settlement, inasmuch as it would have precluded the
Applicants from bringing any proceedings under Article 7. Such
a settlement would have settled nothing vis-à-vis any other

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State dissatisfied with it, or in the United Nations Assembly?,
and would not, from the point of view of the Respondent, have
genuinely settled anything.

It is common knowledge that the present proceedings have
been brought because the decision of the Court would be binding
on the Mandatory. Elementary principles of justice and good faith
therefore require that if the Mandatory should be able to achieve a
settlement of the dispute directly with the Applicant States (which
it has never yet been asked to do) such a settlement should be
final, and good evga omnes. But obviously any such settlement
could not have this effect.

Again, let it be assumed, since that contingency may not be
excluded, that, on the merits, the Court found im favour of the
Respondent. Such a decision would be res judicata only for the
Applicant States (Article 59 of the Statute). It would not bind
the United Nations Assembly, nor would it bind any States except
the Applicants. Any other State dissatisfied with it could, at some
future time, bring fresh proceedings on exactly or substantially
the same grounds, with: results that might be the same, or again
might not. From the Mandatory’s point of view there could be no
finality. On the other hand a decision given against the Respondent
would be binding on it, and would enable Article 94 of the Charter
to be invoked if necessary by the other Party.

The evident disparity between these two situations is not easy
to reconcile with normal principles of justice, and we do not believe
that anything so lop-sided could have been in contemplation when
Article 7 was drafted. We consider that, as its wording clearly
implies, this provision was only intended to relate to disputes of a
kind which are capable of being settled by negotiation, and of which
therefore, in the given case, it can legitimately be held (if the facts
so warrant) that the dispute ‘‘cannot’’ be so settled; and we consider
further, that the only kind of dispute of that character, is one
involving the national rights or interests of the States concern-
ed. These they are competent to settle in a final manner by negotia-
tion. Disputes about the general conduct of the Mandate, in relation
to the inhabitants of the territory, are disputes which, in principle,
are not capable of being so settled merely by a negotiation between
the Mandatory and another State. The obligations of the Man-
datory in relation to the “sacred trust” are of their nature not
negotiable as between the Mandatory and another State Member of
the League. The present dispute is of the latter kind, and therefore
we do not consider that it comes under Article 7.

11It is of course no answer to say that in practice the Applicants would not have
negotiated any settlement they did not know would be acceptable to the Assembly;
‘or if it is an answer, it is a revealing one which can only bear out our view that the
dispute in this case is not really with the Applicants.

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%#

We now wish to refer briefly to a further point that seems to
us of hardly less importance. We find it impossible to reconcile
the view that Article 7 relates to disputes about the general conduct
of the Mandate, with the supervisory functions given to the Council
of the League under Article 6 of the Mandate. The conjunction would
mean that although the League Council might have been perfectly
satisfied with the Mandatory’s conduct of the Mandate, or might
even have made suggestions to the Mandatory about that, which
the latter was complying with and carrying out, any Member
of the League not satisfied with the Mandatory’s conduct, or not
agreeing with the Council’s views, could have brought proceedings
before the Permanent Court under Article 7.

There would have been an even more extraordinary possibility. A
Member of the League might, on some point relative to the conduct
of the Mandate, have obtained from the Permanent Court a decision
which was not in fact in the best interests of the peoples of the
mandated territory—due, say, to lack of sufficient technical data
before the Court. Yet under Article 59 of the Statute, the Mandatory
would have been bound by the decision, and obliged to apply it
vis-a-vis the inhabitants, although the Council of the League might
have been wholly opposed to it and itself not bound by it.

We cannot believe it was ever intended that it should be possible
for such situations to arise, and in estimating this, one must, for
reasons we have given earlier in this Opinion, place oneself at the
point in time when these provisions, Articles 6 and 7, were being
drafted as designed portions of a coherent and integrated whole,
which the Mandate certainly would not have been if Article 7 had
had the meaning attributed to it by the Court.

The situations we have described as capable of arising if Article 7
is regarded as relating to disputes about the conduct of the Mandate
are in no way fanciful or hypothetical. One of them has actually
arisen in another case, with reference to a provision substantially
the same as Article 7 in a United Nations trusteeship agreement.

It is in our opinion hardly conceivable that those who created
a system according to which the Mandates were to be exercized
“on behalf of the League”, and the Mandatory was to be responsible,
and solely responsible, to the Council of the League, should have
been willing so far to dilute the Council’s authority (especially when

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the Council could itself go to the Permanent Court for an Advisory
Opinion), as to give a wholly independent right of recourse to the
Court to Members of the League, not merely for the protection of
their own individual rights and interests, but in the very field
of the general conduct of the Mandate which was peculiarly the
Council’s.

*
* *

These various considerations lead us to hold that, despite
the apparently plain language of Article 7 of the Mandate, on a
literal interpretation of the words “‘any dispute whatever’, analysis
shows its real meaning and intention to be different, and to exlude
disputes about the general conduct of the Mandate. If there is
any room for doubt, then this is a case in which reference to the
travaux préparatoires is justified, in order to see whether they
confirm the foregoing interpretation, and to this we shall now
proceed.

*
* *

Before the end of the Paris Peace Conference of 1919, a Mandates
Commission was established to consider possible draft terms for
the various Mandatest. At its first meeting on June 28, 1919, a
draft “‘C’’ Mandate in the form of five suggested articles was submit-
ted for discussion. This draft contained no adjudication clause. Nor
did it contain any clause dealing with freedom of worship or the
provisions in relation to missionaries, nationals of any State Member
of the League, to enter and reside in the territory, etc., as was
subsequently to be set forth in Article 5 of the “C’” Mandate instru-
ments.

At its next meeting on July 8, the Commission had before it not
only the draft “‘C’’ Mandate, but also two draft “B’ Mandates,
one proposed by the representative of France which was to form
the basis of discussion, and another presented by the United States.
The French “B” draft was brief, and contained eleven compa-
ratively short articles. I¢ contained no adjudication clause. The
United States draft, on the other hand, contained apart from
certain clauses dealing the conduct of the Mandate in relation to
the peoples of the Mandated territory, a number of clauses which
provided in considerable detail for rights to be accorded to States
Members of the League, and their subjects or nationals, in respect
of a number of different matters. This United States draft contained
an adjudication clause, and it is clear from the record—and this is
what we draw attention to—that the discussion on this adjudica-

1 Conférence de la Paix 1919-1920; Recueil des Actes de la Conférence, Partie VI,
Paris 1934, at page 327.

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tion clause, appearing in the United States draft only, centred round
these detailed rights to be accorded to Members of the League and
their nationals under that draft. The adjudication clause read as
follows:

“Tf any dispute should arise between the Members of the League
of Nations regarding the interpretation or application of the present
Convention and the dispute cannot be settled by negotiation, it will
be referred to the Permanent Court of Justice...

The subjects or citizens of the States Members of the League
of Nations may also refer claims relating to breaches of heir rights
conferred upon them by Articles 5, 6, 7, 7a and 7b of the Mandate
to the Court for decision. The judgment given by the Court will be
without appeal in the fwo above mentioned cases and will have the
same effect as an arbitral award rendered pursuant to Article 13 of
the Covenant.’’ (Italics ours.)

The articles of the United States “B’’ draft, as above indicated
provided for what may conveniently be described as an “open
door” to carry on trade and commerce, etc., accorded to subjects
and nationals of States Members of the League (Article 5); religious
freedom, and provision for missionaries (Article 6); equality of
opportunity for the commerce and navigation for all States, Mem-
bers of the League and provision against discrimination between
subjects and nationals of State Members of the League (Article 7);
concessions in respect of railways, post offices, telegraphs, radio
stations and other public works or services without distinction,
etc., between subjects or nationals of States, Members of the
League (Article 7 a); and a kind of most-favoured-nation provision
in favour of States, Members of the League (Article 7 6) and their
nationals.

These clauses thus provided for a series of rights to be conferred
both upon States, Members of the League, and upon their subjects
and citizens. The wording of the adjudication clause itself was
somewhat peculiar and not very good. The second paragraph ap-
peared to confer some kind of direct right of action on the nationals
of the Members States—an idea which did not last. Looking at the
clause as a whole, and at the words we have italicized in it, and
considering the context in which it was proposed and discussed, it
appears clear that the first paragraph of it was intended to relate to
the rights and interests of the Member States under the Mandate,
and the second to those of their nationals under certain specified
articles, some of which covered both rights of nationals as well as
State rights.

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, and it was

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in this context and in no other that the adjudication clause was
discussed. The matter progressed on this footing.

At its next meeting on 9 July, the Commission continued its
examination of both the French and United States draft “B”
Mandates; but the French draft was taken as the basis of discus-
sion, article by article. The first four Articles dealt with the kind
of thing that appears in the first four Articles of the Mandate for
South West Africa and these were, with certain amendments,
provisionally adopted.

The Commission then took up Article 5 of the French ‘B’ draft.
The first paragraph, which was very short, provided for equal
rights for citizens of States Members of the League in relation to
residence, protection of their persons and property, the acquisition
of fixed and movable property and the exercise of their callings, all
on the same basis as that accorded to nationals of the Mandatory
Power. This was accepted after amendment.

The remaining part of the French clause 5, which—again in
brief terms, and in principle only—dealt with equality of commercial
opportunity for nationals of State Members of the League, freedom
of navigation and transit, and protection against discriminatory
duties on merchandise, was examined in conjunction with Article 7
of the United States draft.

The Commission then proceeded to consider whether there would
be any advantages in inserting, in this French clause 5, detailed
stipulations such as the United States ‘B’ draft provided. The
representative of the United States contended that they were
necessary in order to ensure satisfactory execution by the Manda-
tory. The record then reads:

“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’
(‘égalité commerciale’)—which appeared in the French drait—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.”

The morning session concluded with this observation. This discus-
sion, we think, shows very clearly that the purpose of the adjudica-
tion clause, and the sole context in which it was considered, was
the protection of the commercial and other rights of States Members
of the League, and those of their nationals, as intended to be confer-
red on them by the Mandate instruments.

It was in consequence of this discussion that the first matter
taken up by the Commission at its afternoon session on the same

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day was Article 15 of the United States draft, which contained the
adjudication clause above quoted. The Commission proposed to
continue its discussion of Article 5 of the French draft, but on the
suggestion of the Representative of the United States, agreed first
to examine this adjudication clause.

The Representative of France said that he had no objection in
principle to resort to an international Court, but he thought that if
that procedure were open to private individuals, any sort of
administration would become impossible. The President agreed.
Recourse to the Court should be the responsibility of a Government.
He thought there would certainly be some advantage in trans-
ferring from the political to the legal plane the settlement of questions
such as those concerning property rights (‘le règlement des questions
comme celle du droit de propriété”), but asked whether Govern-
ments should not assume the responsibility for deciding whether a
claim should be referred to the Court (sz la réclamation doit être
portée devant la Cour).

To meet this position, Lord Robert Cecil then proposed that the
second paragraph of the adjudication clause should read:

“The Members of the League of Nations will also be entitled on
behalf of their subjects or citizens to refer claims for breaches
of their rights”. etc.

This met the various points of view. It was accepted by the Re-
presentative of the United States, and was adopted, apparently
without further discussion.

The next step was the omission of the last sentence of the United
States adjudication clause, namely that which provided that the
judgment of the Court in each case should be final and have the
same effect as an award under Article 13 of the Covenant. This
sentence became superfluous if all claims had to be referred
to the Court by Governments, whether in respect of their own rights
under the Mandates, or of those of their nationals.

The Commission then returned to the examination of the final
part of Article 5 of the French ‘B’ draft, and since it was this draft
which was the basis of all further consideration, not the United
States draft with its detailed provisions for rights to be accorded
to States or their nationals, the reference to ‘Articles 5, 6,7, 74
and 76” in the adjudication clause was omitted. Article 5 of the
French draft was then tentatively approved with some amend-
ments.

The Commission then took up a fresh draft of the “C’’ Mandates.
This draft now contained a new article, the final form of which
appears as Article 5 of the Mandate for South West Africa, guaran-
teeing freedom of worship in the mandated territory, and freedom
for missionary activities on the part of nationals of Members of
the League. In this same draft there appeared, equally for the first

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time, an adjudication clause in broadly the same terms as were
eventually submitted to the Council of the League on December 14,
1920, and adopted by it after amendment in its resolution of
December 17, 1920, promulgating the Mandate.

It seems to us therefore that the record could hardly make it
plainer than it does that the drafting of what might for convenience
be called the national rights clauses of the Mandates, and the draft-
ing of the adjudication clause, went hand in hand, each reacting
on the other, and that the adjudication clause was never discussed
in the context of the obligations of the Mandatories relative to the
peoples of the mandated territories. To borrow the words of Lord
Finlay in one of the Mavrommatis cases (P.C.I.J. Series A, No. 2,
at p. 43) in relation to the Palestine Mandate: “‘Under these heads
[i.e. of the commercial, etc., rights of States and their nationals]
there are endless possibilities of dispute between the Mandatory
and other Members of the League of Nations, and it was highly

_ necessary that a Tribunal should be provided for the settlement
of such disputes”.! Never at any time during the settlement of
the drafts was there the slightest suggestion that the adjudication
clause was intended to serve quite a different purpose, namely the
policing of the sacred trust.

It is evident that it had no relation to the trust obligations of
the Mandatory to the peoples of the territories. It was designed to
serve a less lofty purpose. It is quite inconceivable that if Article 7
was of the fundamentally essential character stated by the Court;
created as one of the securities for the performance of the Covenant,
providing the Court as the final bulwark to secure the performance
of the sacred trust, that not one word is to be found in the records
which gives support to the Court’s view ?.

To sum up, our study of the record confirms the view which we
had antecedently and independently formed, on the basis of the
language of Article 7, and in the context of the Mandate as a
whole. This view is, first, that Article 7 must be understood as
referring to a dispute in the traditional sense of the term, as it
would have been understood in 1920, namely a dispute between

1 We cite Lord Finlay. We do not cite other juristic authority, but we draw
attention to the exactly similar view to our own, expressed as representing the
general opinion of international lawyers, by Mr. Feinberg in his Hague Academy
course of 1937, quoted in full in the Dissenting Opinion of the President of the
Court in the present case. .

2 The degree of importance which the United States in 1920 placed upon the
equality of commercial and industrial opportunity in the mandated territories is
to be seen in the correspondence which passed between it and the Council of the
League and the British Secretary of State for Foreign Affairs between November
1920 and March i921. Annexes 154 and 154@, b, and c, Minutes 12th Session
Council of League.

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the actual parties before the Court about their own interests, in
which they appear as representing themselves and not some other
entity or interest; and secondly, that Article 7 in the general
context and scheme of the Mandate, was intended to enable the
Members of the League to protect their own rights and those of
their nationals, and not to enable them to intervené in matters
affecting solely the conduct of the Mandate in relation to the peoples
of the mandated territory.

In this last connection we consider that the record completely
confirms the view we have taken in rejecting the argument that
Article 7 was introduced, and was essential, in order to compensate
for the fact that, by reason of Article 34 of the Statute of the Court
(which incidentally had not been drafted in 1919 when the Mandates
Commission held its deliberations), the Council of the League could
not appear in contentious proceedings, but could only request
advisory opinions, and could not therefore, in the last resort, obtain
any binding decision against the Mandatory. We have expressed the
view that it was foreign to the climate of opinion of 1919-20 to
insert an adjudication provision with such a purpose in mind, and
the record confirms this. It was not to enable Members of the League
to assist the Council in upholding the Mandate that Article 7 was
introduced, but to enable them to protect their own national rights
which the Council would have no special interest in doing.

A further point, confirming the same vicw, is that the key provi-
sion as regards the interests of the peoples of the mandated terri-
tory, which appears in the “C’’ Mandates (Article 2) as an obliga-
tion for the Mandatory to promote to the utmost the peoples’
material and moral well-being and social progress, and in a some-
what different form in the ‘‘B’’ Mandates, does not figure in the
“A” Mandates at all. Yet an adjudication clause similar to Article 7
does figure there—evidently because the ‘“‘A’’ Mandates contained
(as they did) provisions concerning the rights and interests of
Members of the League and their nationals in the mandated ter-
ritory and for no other reason.

*
* *

There is only one further point we need deal with under this
head, namely the argument sought to be drawn from the existence
of what is known as the “Tanganyika Clause”.

As has been seen, in the course of the drafting, the original
division of the adjudication clause into two parts (State rights;
rights of nationals) was eliminated, because once it had been agreed
that all proceedings of whatever character must be brought by
governments, whether on their own behalf or that of their nationals,
the raison d’être for this division disappeared. In only one Mandate

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was it unaccountably preserved, that for British East Africa, the
adjudication clause of which has a first paragraph in Article 7
terms, and a second providing that Members of the League could
also bring before the Court complaints on behalf of their nationals‘.
From this it has been sought to draw the conclusion that the first
paragraph of the Tanganyika clause (and hence any provision
such as Article 7 having similar terms to this first paragraph)
must have related to disputes about the conduct of the Mandate.

Even as a matter of interpretation pure and simple, we regard
this as too slender a foundation on which to seek to erect such a
conclusion. The second part of the clause is quite redundant, as
the Mavrommatis case bears witness. Moreover the Belgian
Mandate for East Africa was on all fours with that of the British
Mandate for Tanganyika. It would be quite absurd to suggest that
the second paragraph was designed to create a difference between the
one Mandate and the other. No reason has ever been advanced why
this should have been so. In any case the record shows that all that
happenéd was that the Tanganyika clause simply retained the
original form of the adjudication clause introduced and discussed
in connection with the statal rights of Members of the League,
and rights reserved for their nationals, and that in this form the
first part was intended to cover the statal rights of the Members,
and the second the rights of their nationals. All that happened
in the Tanganyika case was that these two parts were never merged,
as happened in all the other cases; or rather that there was simply
a failure to drop the second part, as being superfluous. From this,
no useful information as to the meaning of the first part can be
derived. In the circumstances, therefore, no deduction contrary
to the view we hold can legitimately be drawn.

*
* *

Conclusion: we consider that the third preliminary objection is
good and should be upheld.

VII

FOURTH PRELIMINARY OBJECTION

Having regard to our view, stated under the preceding head, that
the matters involved by the present Application are not of a kind

1 The reason for the failure to draft the Tanganyika clause in the same form as
the others has not been established with any certainty. It was one of those drafting
quirks that constantly occur at international conferences, and probably arose from
differences of view as to whether, if a clause is superfluous, it is better to omit it or,
ex abundanti cautela, to let it remain.

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that are capable of settlement on the basis of a negotiation between
the Applicants and the Respondent State, since these parties lack
competence to settle such matters by a negotiation purely between
themselves, the question of whether the present dispute is one that
“cannot” be settled by negotiation hardly arises for us. We will
consider it nevertheless, because certain points of principle are
involved which seem to us important.

The Respondent has not denied that discussions have taken place
in the United Nations, but has confined itself to contending that
they did not take place in conditions that gave them any real
chance of success, so that it cannot be said.that the dispute is one
that under no circumstances could be settled by negotiation.

This contention involves questions of fact into which we do not
propose to go because, in our opinion, there has not, properly speak-
ing, been any negotiation at all in this case of the kind contemplated
by Article 7.

Under Article 7, the dispute that cannot be settled by negotiation
must be the dispute between the Mandatory and the other Member
of the League concerned, i.e., the actual dispute between the Parties
to the proceedings before the Court, as such. This means that the
negotiation required by Article 7 must relate to that dispute and
no other. Now the Applications in this case were filed in November,
1960, and it is quite clear therefore that, up to that date, the
Assembly proceedings on which the Applicants rely (even if they
can be called negotiation at all) had nothing whatever to do with
the actual dispute between the Applicant States and the Respondent
State, since this dispute did not then exist as such 1. All that existed
up to that date was a disagreement between the Assembly (as an
entity) and one of its Members—the Respondent State; and all
that had taken place up to that date were sundry proceedings in
the Assembly and its Committees, in which indeed the Applicants
participated, but simply as Members of the Assembly. To attribute
to these antecedent discussions the character of a negotiation
relative to the present dispute (which only arose in November 1960,
if even then‘)—a negotiation conducted by the Applicants in and
through the Assembly, or by the Assembly itself on behalf of the
Applicants, seems to us wholly unrealistic.

We would not wish to exaggerate the extent of negotiation that
may be required to establish that there has been the minimum

1 Nor strictly does it exist now, since, as we pointed out under the preceding
head, it cannot have been created merely by the institution of proceedings; and no
other interchanges, outside the Assembly, or directly between the parties as such,
have ever taken place.

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necessary in the circumstances to make it clear that the parties
cannot settle their dispute. But some negotiation must, we think,
in fact have taken place between the actual Parties to the proceed-
ings before the Court, in their capacity as individual States.

Furthermore, the negotiation must relate to the dispute (and no
other) alleged to exist between the parties to the proceedings before
the Court, which dispute must have existed antecedently to those
proceedings. It is not sufficient for the negotiation (supposing it to
have been one) to have related to a dispute which, at the time when
this “negotiation” was taking place, did not exist specifically between
the Parties before the Court, but consisted merely in a general all-
round controversy pursued on the floor of an international Assembly.

We are not concerned to deny the propriety or utility of dis-
cussions in an international forum such as the Assembly of the
United Nations. We do not think that, normally, such discussions
can be regarded as an actual negotiation taking place between the
Parties before the Court, as we think Article 7 contemplated. Such
discussions are, and necessarily must be, of too general and diffused
a character to constitute a negotiation between the specific parties
who eventually come before the Court in relation to a specific
dispute between them as States.

Be that as it may, what is clearly apparent to us is that a ‘‘ne-
gotiation’”’ confined to the floor of an international Assembly, consist-
ing of allegations of Members, resolutions of the Assembly and actions
taken by the assembly pursuant thereto, denial of allegations,
refusal to comply with resolutions or to respond to action taken
thereunder, cannot be enough to justify the Court in holding
that the dispute “cannot” be settled by negotiation, when no direct
diplomatic interchanges have ever taken place between the parties,
and therefore no attempt at settlement has been made at the statal
and diplomatic level. Since direct negotiations between the actual
Parties to a dispute constitute the usual and normally indispensable
method of attempting a settlement, we do not see how the Court
can hold and adjudge that the dispute (that any dispute) ‘‘cannot”’
be settled, when no recourse at ail has been had to this method.
We do not think it should be assumed or postulated that inter-
changes which have not succeeded in the Assembly or its subsidiary
organs, might not, in different conditions, and amongst a restricted
number of parties, stand some chance of success—at least a sufficient
chance to make it not reasonably possible to affirm the contrary
until this method has been attempted. Whether success would be
achieved, must be a matter of opinion, but that is not the point;
and to us, the failure to conduct, or even attempt, any direct ne-
gotiations between the parties to the present dispute in their
capacity as such, appears (having regard to the terms of Article 7)
to constitute a formal bar to the present proceedings.

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In our opinion the fourth preliminary objection must accordingly
be upheld.

*

We shall conclude by pointing out that requirements about
“disputes” and “negotiations” are not mere technicalities. They
appear in one form or another in virtually every adjudication
clause that has ever been drafted, and for good reason. They are
inserted purposely to protect the parties, so far as possible, from
international litigation that is unnecessary, premature, inadequately
motivated, or merely specious. Without this measure of protection,
countries would not sign clauses providing for compulsory adjudica-
tion. This is an aspect of the matter to which we feel insufficient
attention has been given.

*
* *

Our final conclusion on the whole case is that, for all of the
reasons stated, and in relation to each of the objections raised,
whether on the grounds actually advanced by the Respondent State
or on other grounds, the Court is not competent in this case, and
should refuse to assume jurisdiction.

(Signed) Percy C. SPENDER.
(Signed) G. G. FITZMAURICE.

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