250

DISSENTING OPINION OF JUDGE TANAKA

I

On 4 November 1960, the Governments of Liberia and Ethiopia
(hereinafter referred to as the “Applicants’’) submitted an Application
to this Court to institute proceedings against the Union of South Africa,
now the Republic of South Africa (hereinafter referred to as the “Res-
pondent”). The Respondent filed four preliminary objections relating
to the jurisdiction of the Court. These objections having been dismissed
by a Judgment dated 21 December 1962 and the written and oral
pleadings on the merits being completed, the Court has now to decide
on the submissions of the Applicants presented to the Court in the
Memorials and amended by the Applicants during the course of the oral
proceedings (on 19 May 1965).

One of these preliminary objections rejected by the 1962 Judgment
was the third preliminary objection which related to the nature of the
dispute brought before the Court by the Applicants, namely to the
question of the existence of their legal right or interest. This matter
again, at this stage of the proceedings, has been taken up by the Court
and examined, but from the viewpoint of the merits.

Here, attention must be drawn to the Court’s characterization of
the question of the Applicants’ legal interest, namely its statement
that ‘“‘there was one matter that appertained to the merits of the case
but which had an antecedent character, namely the question of the
Applicants’ standing in the present phase of the proceedings ... the
question ... of their legal right or interest regarding the subject-matter
of their claim, as set out in their final submissions”.

The result is that the Applicants’ claims are declared to be rejected
on the ground of the lack of any legal right or interest appertaining to
them in the subject-matter of the present claims and that the 1962
Judgment is substantively overruled concerning its decision on the third
preliminary objection.

Although we do not deny the power of the Court to re-examine
jurisdictional and other preliminary matters at any stage of proceedings
proprio motu, we consider that there are not sufficient reasons to overrule
on this point the 1962 Judgment and that the Court should proceed to
decide the questions of the “ultimate” merits which have arisen from
the Applicants’ final submissions. _

We are again confronted with the question whether the Applicants
possess a legal right or interest in the proper discharge by the Respondent,
as the Mandatory, of the obligations incumbent upon it by virtue of
the ‘“‘conduct clauses” in the mandate agreement.

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À negative conclusion is derived either from the nature of the interest,
or from the capacity of the Applicants.

It is argued that the dispute brought before the Court by the Applicants
does not affect any material interest of the Applicant States or their
nationals and is not envisaged in Article 7, paragraph 2, of the Mandate.

The Mandate, as is stated in more detail below, presents itself, eco-
nomically and sociologically, as an aggregate of several kinds of interest.

The personal structure of the mandates system is very complicated
and sui generis; besides the mandatory, the League and the inhabitants
of the territories, there are persons who are connected with the mandate
in some way, particularly those who collaborate in the establishment or
in the proper functioning of this system, such as the Principal Allied
and Associated Powers and the Members of the League.

The interests corresponding to the categories of persons mentioned
are multiple. Here, only the interest of Members of the League is in
question, since the question of the existence of a legal interest of the
Applicants as former Members of the League has now to be determined.

The interests which may be possessed by the member States of the
League in connection with the mandates system, are usually classified in
two categories. The first one is the so-called national interest which
includes both the interest of the member States as States and the interest
of their nationals (Article 5 of the Mandate). The second one is the
common or general interest, which the member States possess in the
proper performance by the mandatory of the mandate obligations.

Whether the adjudication clause, namely Article 7, paragraph 2, of
the Mandate can cover both kinds of interests, or only the first one,
namely national interest, is the question that has to be answered in
the present cases.

Here, we must recognize the fact that the above-mentioned two
kinds of interests are different from each other. The first category of
interest although related to.the Mandate, is of an individual nature
and each member State of the League may possess such an interest
regarding the mandated territory, incidentally, that is to say, for some
reason cther than the Mandate itself. The second category of interest
emanates from the sphere of social or corporate law concerning the
function of the League in regard to the Mandate. The member States
of the League are in the position of constituting a personal element of
the League and its organs and, consequently, are interested in the
realization of the objectives of the mandates system and in the proper
administration of mandated territories. The interest which the member
States possess concerning the Mandate is, in its content, the same for
all Members of the League, and is therefore general and uniform in the
case of each member State, thereby differing from the first category
of interest, which emanates from the individual sphere. However, the
fact that it is of this nature does not prevent it from possessing the

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nature of interest. There is no reason why an immaterial, intangible
interest, particularly one inspired by the lofty humanitarian idea of a
“sacred trust of civilization” cannot be called “interest”.

In short, the interest possessed by the member States of the League
as its Members is corporate and, at the same time, idealistic. However,
this does not prevent it from being “interest”.

The interest which the member States of the League possess regarding
the proper administration of the mandated territory by the Mandatory
is possessed by Members of the League individually, but it is vested
with a corporate character. Each Member of the League has this kind
of interest as a Member of the League, that is to say, in the capacity
of an organ of the League which is destined to carry out a function of
the League.

The question is, whether this kind of interest can be called “/egal
interest”, and whether law recognizes it as such.

The historical development of law demonstrates the continual process
of the cultural enrichment of the legal order by taking into consideration
values or interests which had previously been excluded from the sphere
of law. In particular, the extension of the object of rights to cultural,
and therefore intangible, matters and the legalization of social justice
and of humanitarian ideas which cannot be separated from the gradual
realization of world peace, are worthy of our attention.

The fact that international law has long recognized that States may
have legal interests in matters which do not affect their financial, eco-
nomic, or other “material” or so-called “physical” or ‘“‘tangible” interests
was exhaustively pointed out by Judge Jessup in his separate opinion
in the South West Africa cases, 1962 Judgment U.C.J. Reports 1962,
pp. 425-428). As outstanding examples of the recognition of the legal
interests of States in general humanitarian causes, the international efforts
to suppress the slave trade, the minorities treaties, the Genocide Con-
vention and the Constitution of the International Labour Organisation
are cited.

We consider that in these treaties and organizations common and
humanitarian interests are incorporated. By being given organizational
form, these interests take the nature of “legal interest” and require
to be protected by specific procedural means.

The mandates system which was created under the League, presents
itself as nothing other than an historical manifestation of the trend
of thought which contributed to establish the above-mentioned treaties
and organizations. The mandates system as a whole, by incorporating
humanitarian and other interests, can be said to be a “legal interest”.

However, what is in question is not whether the Mandate is a legal
interest or not. What we are considering is not legal interest in itself,

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but its relationship with persons who possess it, that is to say, the
question of the existence of a legal interest as a condition on which the
Applicants, as Members of the League, possess the right to have recourse
to the International Court.

Each member of a human society—whether domestic or international
—is interested in the realization of social justice and humanitarian ideas.
The State which belongs as a member to an international organization
incorporating such ideas must necessarily be interested. So far as the
interest in this case affects the rights and obligations of a State, it may
be called a legal interest. The State may become the subject or holder
of a legal interest regarding social justice and humanitarian matters,
but this interest includes its profound concern with the attitude of
other States, particularly member States belonging to the same treaty or
organization. In short, each State may possess a legal interest in the
observance of the obligations by other States.

In the mechanism of the above-mentioned treaties and organizations,
the procedural means to guarantee the observance are provided, although
not in a uniform way, taking into consideration the difference in the
objective and structure of each treaty and organization.

The question is whether under Article 7, paragraph 2, of the Mandate,
the Applicants possess a right to have recourse to the Court by reason
of a violation by the Respondent of certain conduct clauses provided by
the Mandate, namely whether the Applicants have a legal interest in
invoking the Court’s jurisdiction concerning the obligations imposed
on the Respondent by the conduct clauses.

One of the arguments in denial of the Applicants’ legal interest in
the Respondent’s observance of the conduct clauses is that the Applicants
do not suffer any injuries from non-observance of the conduct clauses.
The Applicants, however, may not suffer any injuries in the sense that
their own State interests or the interests of their nationals are injured.
The injuries need not be physical and material, but may be psychological
and immaterial, and this latter kind of injuries may exist for the Appli-
cants in the case of non-observance by the Respondent of thie conduct
clauses.

The supreme objectives of the mandates system, namely the promotion
of the well-being and social progress of the inhabitants of the Territory
mentioned in Article 2, paragraph 2, of the Mandate, in spite of their
highly abstract nature, cannot be denied the nature of a legal interest
in which all Members of the League participate.

As we have seen above, there exist two categories of legal relationships

in the mandates system from the viewpoint of the Members of the
League: the one is its individual side and the other is its corporate side.

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Now, the existence of the corporate side in regard to the Mandate
is in question.

One ground for denying to a Member of the League the right to
have recourse to the International Court of Justice under Article 7,
paragraph 2, of the Mandate, seems to be that this right, being of a
public nature, cannot be exercised by a Member of the League. Only
the League could possess such right and exercise it notwithstanding
the fact that States only may become parties in cases before the Court.
If a Member of the League exercises a right which should belong to the
League as a whole, this would be nothing but an act ultra vires.

Here we must consider whether it is not legally impossible that in
the case of an organization an individual member of it can act as an
organ of the whole.

In the field of corporation law, such phenomena are highly developed.
In some countries we find the institution of a representative suit by
a shareholder against the administration. Each shareholder not only
possesses individual rights in respect of dividends and rights to participate
in the assembly and to vote, but can behave independently of the ad-
ministration and of the assembly in bringing a law suit on behalf of
the corporation. In this case, in the position of a shareholder, the
corporate and individual elements are intermingled. As a result, even
if a Member of the League has a right to have recourse to the Inter-
national Court by virtue of Article 7, paragraph 2, on the ground of
non-compliance by the Mandatory with the obligations of Article 2,
paragraph 2, of the Mandate, it cannot be considered as unjuristic.
In the present cases, the Applicants appear formally in an individual
capacity as Members of the League, but they are acting substantially
in a representative capacity. That not only the Council, but the Member
States of the League are equally interested in the proper administration
of the mandated territory, is quite natural and significant. In this respect,
the individual Member States of the League penetrate the corporate veil
of the League and function independently of the League.

There are two main reasonings upon which the Court’s denial of
the Applicants’ legal right now appears to be based. The one is the
juridical character and structure of the institution, the League of Nations,
within the framework of which the mandates system is both created
and enshrined. The League functions “through the instrumentality of
an Assembly and a Council” and “no role was reserved either by the

CE

Covenant or the mandate instruments to individual members . . .”.

We cannot deny that the League and the mandates system possess
such structure that the member States as individuals are fundamentally
excluded from participation in the functioning of the League and the
mandates system and that rights cannot be derived from the mere fact
of membership of the organization in itself. The question remains as

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to whether the corporate structure of the League excludes the possibility
that the mandate instrument may confer upon the individual member
States the right to have recourse to the International Court on matters
concerning the “‘conduct” clause. The answer depends upon the inter-
pretation of Article 7, paragraph 2, of the Mandate.

The other reasoning is, that, in the Court’s opinion, the Applicants
do not possess a legal right directly or by a clearly necessary implication,
through a substantive and not merely adjectival provision of the Mandate
in the same way as they possess it by virtue of Article 5 of the Mandate
which is concerned with the so-called ‘‘national rights” of the Member
States. But in this case, whether a substantive right is conferred on
member States by that provision or not, is highly doubtful.

It seems that by the effect of this provision the member States and
their nationals are simply accorded an interest as beneficiaries in con-
nection with the proper administration of the Mandate. This fact is
clear from the first half of the said Article which is concerned with the
guarantee of freedom of conscience and the free exercise of all forms
of worship—matters which concern the inhabitants in general, and not
only the member States.

Although Article 5 of the Mandate is partly concerned with the
national interest of the member States of the League, the nature of this
provision is not fundamentally different from that of the rest of the
provisions of the Mandate. It possesses the same nature as the “conduct”
clause. It does not confer upon the member States any substantive right.
They receive only a certain benefit as a “reflective” effect of the mandate
instrument, but not any right as an effect of an independent juridical
act which does not exist.

Incidentally, Article 5 of the Mandate mentions “all missionaries,
nationals of any State Member of the League of Nations”. But this
phrase does not mean that any member State possesses a right concerning
its missionaries and nationals, because it is used simply to identify the
missionaries and nationals. Whether the member States of the League
possess the right of diplomatic protection is another matter.

Accordingly, the distinction between the “conduct” clause and the
“national” clause is not an essential one. The latter must be considered
as an integral part of the Mandatory’s obligations which are derived
from the objectives of the mandates system, namely the promotion of
material and moral well-being and social progress. Whether some of
the obligations are related to the interest of some of the member States
of the League or not, is quite immaterial to the nature of Article 5 of
the Mandate. -

Therefore the classification of the mandate provisions into two
categories, namely the conduct clause and the national clause is of
secondary importance.

As to the argument that the substantive right of the Applicants must

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be found, not in the jurisdictional, adjectival provision but in the sub-
stantive provision, we feel we should point out that in the Mandate the
substantive and procedural elements are inseparably intermingled and
that Article 7, paragraph 2, can confer substantive rights on the indi-
vidual member States of the League. This conclusion must be justified,
if we approve the above-mentioned viewpoint that Article 5 of the
Mandate does not confer upon the member States of the League any
substantive right. The source of their right cannot be sought elsewhere
than in Article 7, paragraph 2, in connection with other provisions of
the Mandate.

In this connection, we cannot overlook the dissenting opinions of
Judges de Bustamante and Oda appended to the Judgment of the
Mavrommatis Concessions case. Both emphasize what they consider as
essential in the compromissory clause. Judge de Bustamante says:

“As the latter [the League of Nations] could not appear as a
party to a dispute concerning the application or interpretation of
the Mandate, having regard to the restrictive terms of Article 34
of the Court’s Statute, it is the Members of the League who have
been authorized, in their capacity as Members, to bring before the
Court questions regarding the interpretation or application of the
Mandate.” (P.C.I.J., Series A, No. 2, p. 81.)

“Whenever Great Britain as Mandatory performs in Palestine
under the Mandate acts of a general nature affecting the public
interest, the Members of the League—from which she holds the
Mandate—are entitled, provided that all other conditions are
fulfilled, to have recourse to the Permanent Court. On the other
hand, when Great Britain takes action affecting private interests
and in respect of individuals and private companies in her capacity
as the Administration of Palestine, there is no question of juridical
relations between the Mandatory and the Members of the League
from which she holds the Mandate, but of legal relations between
third parties who have nothing to do with the Mandate itself from
the standpoint of public law.” (Zbid., pp. 81-82.)

Next, Judge Oda, pursuing the same idea more clearly, says:

“Since the Mandate establishes a special legal relationship, it is
natural that the League of Nations, which issued the Mandate,
should have rights of supervision as regards the Mandatory. Under
the Mandate, in addition to the direct supervision of the Council
of the League of Nations (Articles 24 and 25) provision is made
for indirect supervision by the Court; but the latter may only be
exercised at the request of a Member of the League of Nations
(Article 26). It is therefore to be supposed that an application by
such a Member must be made exclusively with a view to the pro-
tection of general interests and that it is not admissible for a State

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simply to substitute itself for a private person in order to assert
his private claims.” (Jbid., p. 86).

Although these views of the two dissenting Judges have remained
minority opinions on this matter and were recently criticized by Judge
Winiarski (dissenting opinion in South West Africa cases, I.C.J. Reports
1962, pp. 450, 451), we cannot fail to attach importance to the fact
that, shortly after the inception of the mandates system, such opinions,
even if they were minority, existed.

Another strong argument raised by Judges Sir Percy Spender and
Sir Gerald Fitzmaurice in the joint dissenting opinion to the 1962
Judgment (1.C.J. Reports 1962, pp. 552, 553), against the admissibility
of the Applicants’ claim is related to the character of interest which,
it is contended, does not allow a settlement to be achieved. The argu-
ments are related to the question of competence with regard to settlement.

The dispute within the meaning of Article 7, paragraph 2, must be
one which cannot be settled by negotiation.

Well, in the present cases, the dispute in which the interest is incorpo-
rated is of a humanitarian character which does not appear to be com-
patible with the possibility of settlement by negotiation. It will furnish
a strong reason to support the argument denying the admissibility of
the claim in the present cases, because the law suit is in some sense an
act of disposal of interest and, in this case, the dispute is mainly concerned
with fundamental human rights which are called inalienable.

The joint dissenting opinion (ibid., p. 551), denies the possibility of
settlement of the dispute by negotiation inter se—namely between the
Applicant and Respondent States. The reason seems to be based, on the
one hand on the nature of the dispute which does not relate to their
own State interests or those of their nationals, but belongs to the
“conduct of the Mandate’ type—the “sacred trust”; on the other hand,
on the incapability of any settlement negotiated between single States,
such as the Applicant States and the Mandatory.

The inherent incapability of settlement of subject-matter such as
the sacred trust, to be settled by negotiation, however, does not exclude
the possibility of compromise concerning detailed policies and measures
in order to implement the fundamental principles of the Mandate.
Implementation is essentially a matter of degree and is therefore sus-
ceptible of compromise. Accordingly, we cannot consider that the
nature of a dispute which is concerned with the sacred trust is incom-
patible with settlement by negotiation.

The question of competence to settle by negotiation must be decided
from the point of view that the Applicants as Members of the League
individually and at the same time as its organ possess a legal interest
in the realization of the sacred trust and therefore competence to settle
the dispute by negotiation.

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It may reasonably be feared that, if each individual Member of the
League possesses a right to institute proceedings against the Mandatory
by reason of non-compliance with the conduct clauses, repetitious
suits against the Mandatory would arise, procedural chaos would
prevail and the legal situation of the Mandatory would be highly pre-
carious.

In circumstances in which the binding power, erga omnes effect,
of a decision of this category is lacking, one is obliged to rely solely
upon the possibility of intervention (Articles 62, 63 of the Statute),
the wisdom of the Court and the common-sense of those concerned
until legislative arrangement and adjustment will be made to attain
uniformity of decision. These possible abnormalities, arising from the
defect of the machinery, however, should not be a reason for denying
a right to have recourse to the International Court by reason of non-
compliance by the Mandatory of the conduct clauses of the Mandate.

As we have seen above, the interests involved in the mandates system
are multiple. The Applicants in their capacity as Members of the
League possess a legal interest in compliance by the Respondent with
the obligations imposed by the conduct clauses of the Mandate. The
Applicants, on the other side, can have individual interests which
are Classified in two categories: on the one hand, State interests and on
the other, the interests of their own nationals. Although these interests
may exist in connection with the administration of the Mandate, they
are only incidental to the mandates system. Far more important are
the general interests which are inherent in the Mandate itself and which
cannot be ignored in the interpretation of the compromissory clause
in the Mandate.

As we have seen above, it is argued that the supervision of the Mandate
belongs to the Council of the League and to this body only, not to
individual Members of the League; therefore they possess no right to
invoke the Court’s jurisdiction in matters concerning the general ad-
ministration of the Mandate, nor does the Court possess power to
adjudicate on such matters.

. However, the existence of the Council as a supervisory organ of
the Mandate cannot be considered as contradictory to the existence of
the Court as an organ of judicial protection of the Mandate. The
former, being in charge of the policies and administration of the Man-
datory and the latter, being in charge of the legal aspects of the Mandate,
they cannot be substituted the one for the other and their activities
need not necessarily overlap or contradict one another. They belong
to different planes. The one cannot be regarded as exercising appellate
jurisdiction over the other.

As long as the compromissory clause is adopted in a mandate agree-
ment and the scope and limit of its application are by reason of the
vagueness of the terms of the provision not clear, it is quite natural

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that we should seek the just criterion of interpretation in the principle
of the Mandate, that the well-being and development of peoples not
yet able to stand by themselves form a sacred trust of civilization. This
principle presents itself as a criterion of interpretation of the provisions
of the Mandate including Article 7, paragraph 2. Such is the conclusion
of a teleological interpretation of Article 7, paragraph 2, of the Mandate.
Article 7, paragraph 2, does not specify the dispute; it says, “any dispute
whatever’. The dispute may relate to the interpretation or the application
of the “provisions” of the Mandate. There is no reason for concluding
that this dispute should be limited to the kinds of dispute involving
the individual interests of the member States of the League and that
the provisions should mean only those which protect such kinds of

interest.

The above-mentioned conclusion is precisely in conformity with a
literal interpretation of Article 7, paragraph 2, namely the “natural
and ordinary meaning” of the terms of its text.

In sum, Article 7, paragraph 2, as the means of judicial protection
of the Mandate cannot be interpreted in such a way that it ignores the
most fundamental and essential obligations of the Mandatory to carry
out the “sacred trust” and excludes the ‘‘conduct clauses” from the
“provisions” to which Article 7, paragraph 2, shall be applied. We must
not lose sight of what is essential in the face of what is incidental.

For the above-mentioned reasons, we consider that the Applicants
are entitled to have recourse to the International Court of Justice,
because our view is that the present dispute, involving a legal interest
of the Applicants, falls within the scope and limit of the application
of Article 7, paragraph 2, of the Mandate. Accordingly, we are unable
to concur in the Court’s opinion that the Applicants’ claims are, on
the ground of the lack of any legal right or interest, to be rejected.

IT

Before going into the examination on the merits of the present cases,
we are confronted with a preliminary question concerning the res
judicata which shall be recognized or denied to the Court’s foregoing
decisions on identical matters.

The first question which we must decide at the stage of the merits,
is the question of the existence or otherwise of the Mandate after the
dissolution of the League. This question is, without doubt, the core
of the present cases in the sense that whole obligations and rights of
the Respondent as Mandatory depend on the solution of this question.

This question has been envisaged by the Court twice. The Advisory
Opinion of 11 July 1950 denied the annihilative effect of the dissolution
of the League and recognized the continuance of the obligations of the

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Respondent under the Mandate. Next, in the preliminary objections
stage of the present cases the Respondent’s first preliminary objection
was the denial to the Mandate of the character of “a treaty or convention
in force” within the meaning of Article 37 of the Statute, an argument
based on the doctrine of the lapse of the Mandate automatically caused
by the dissolution of the League. This objection, however, was dismissed
by the Judgment of 1962.

The effect of the dissolution of the League upon the survival of the
Mandate is questioned for the third time in the proceedings on the
merits of the present cases.

Before we go into the examination of the issue of the survival or
otherwise of the Mandate, we must solve a question concerning the
effect of the Court’s Advisory Opinion in 1950 and the decision of the
Court in 1962. If the Court’s finding of 1950 or the decision of 1962
establish any res judicata the examination de novo of this issue would
become as a whole or partially impermissible or at least superfluous.

Firstly, concerning the Advisory Opinion of 1950, it has no binding
force upon those concerned, namely no res judicata results from an
advisory opinion for the purposes of subsequent litigation, even if the
issue is identical. This point constitutes a difference between advisory
and contentious proceedings. The structure of the proceedings is not
the same, and the concept of parties in the same sense as in the latter
does not exist in the former. This legal nature of an advisory opinion
does not prevent that, as an authoritative pronouncement of what the
law is, its content will have an influence upon the Court’s decision on
the same legal issue, irrespective of whether or not this issue constitutes
a part of a subsequent stage of the same affairs.

Judge Sir Hersch Lauterpacht expressed in a separate opinion his
view that:

“The Opinion of 11 July 1950 has been accepted and approved
by the General Assembly. Whatever may be its binding force as
part of international law—a question upon which the Court need
not express a view—it is the law recognized by the United Nations.
It continues to be so although the Government of South Africa
has declined to accept it as binding upon it and although it has
acted in disregard of the international obligations as declared by
the Court in that Opinion.” (.C.J. Reports 1956, pp. 46-47.)

The opinion of Judge Lauterpacht does not appear to attribute res
judicata to the 1950 Opinion, but to recognize its authoritative meaning
as to the interpretation of an issue of the same kind.

There is no doubt that—

“... the International Court does not adhere to the doctrine of
stare decisis; nevertheless it will not readily depart from a prior
ruling, especially if the subsequent proceeding involves issues of
fact and law identical in every respect to those in the prior proceed-
ing”. (Memorials, p. 97.)

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The advisory opinion has de facto authority upon which the Court
may rely in deciding subsequent cases which are identical with it or which
involve the same kind of issue.

Judge Winiarski stated:

“Opinions are not formally binding on States nor on the organ
which requests them, they do not have the authority of res judicata;
but the Court must, in view of its high mission, attribute to them
great legal value and a moral authority.” (interpretation of Peace
Treaties with Bulgaria, Hungary and Romania, Advisory Opinion,
C.J. Reports 1950, p. 91.)

Next, the decision of 1962 needs to be considered.

It may be thought that the Court’s finding in the 1962 Judgment
in favour of the survival of the Mandate would have the force of res
judicata (Article 59 of the Statute), but that the effect of res judicata
of this Judgment should be limited to the operative part of the Judgment
and not extend to the reasons underlying it.

The effect of res judicata concerning a judgment on jurisdictional
matters must be confined to the point of the existence or otherwise
of the Court’s jurisdiction. In case of an affirmative decision, the only
effect is that the Court shall proceed to examine the question of the
merits. To the preliminary stage must not be attached more meaning
than this.

At the preliminary objection stage of the present cases the question
of the survival of the Mandate was examined. But this examination
was made from the viewpoint of Article 7, paragraph 2, of the Mandate
and Article 37 of the Statute, i.e., mainly from the angle of the jurisdiction
of the Court and more thorough and exhaustive investigations and
arguments might be expected at the merits stage. Therefore, the Court’s
reasoning underlying its finding in the 1962 Judgment does not prohibit
or make superfluous de novo arguments on the question of the survival
or otherwise of the Mandate after the dissolution of the League. We
could consider that the first preliminary objection which was linked
with the question of the survival or otherwise of the Mandate could
have been more appropriately joined to the merits.

This conclusion is justified by the distinction between preliminary
objection proceedings and proceedings on the merits from the viewpoint
of their objectives. What was decided in a finding in the preliminary
objection proceedings as a basis of jurisdiction, must not be prejudicial
to the decision on the merits, therefore may not have binding force
vis-a-vis the parties; accordingly, in the present cases, it is permissible
that the Respondent should deny and continue to deny the survival of
the Mandate after the dissolution of the League, despite the fact that
this issue was dealt with by the Court at the stage on jurisdiction, and
despite the fact that the arguments might become repetitive.

Incidentally it should be indicated that the Applicants conceded that
the 1950 Advisory Opinion was not binding upon the Respondent in
the strict sense of res judicata, and that the Court’s 1962 Judgment

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related to theissue of competence and did not constitute an adjudication
upon the merits of the dispute (Reply, p. 303).

Before going into an examination of the individual items of the
Applicants’ submissions, we must solve another question of a preliminary
nature which is concerned with the matter of the scope and limit, freedom
of expression for a dissenting judge. In the present cases, a question
arises as to whether a dissenting judge is permitted to deal in his opinion
with matters which are not included in the majority opinion, particularly
questions regarding the alleged violations by the Respondent of the
obligations under Article 2, paragraph 2, of the Mandate and Article 22
of the Covenant, the policy of apartheid, Respondent’s accountability
to the United Nations, etc.

This question is concerned with the interpretation of Article 57 of
the Statute. As regards this question, we must first consider it from a
general point of view.

In countries where the institution of separate (concurring and dis-
senting) opinions is adopted, an individual judge is not absorbed in an
anonymous majority even in the system where an incognito majority
opinion is elaborated, but he can maintain his own individual viewpoint
by appending a concurring opinion. The opinion of the majority is
nothing but the common denominator among the opinions of judges who
constitute the majority, but do not necessarily agree on the reasoning.

From what is indicated above, we may say that the majority opinion
presupposes the existence of diverse individual opinions which are
common at least in the operative part of the decision, and that the free
individual opinions of judges are logically foregoing to the majority
opinion, notwithstanding the fact that the former may be gradually
formulated during the process of the deliberations. Accordingly, we
consider that the majority opinion cannot be conceived to establish any
limits to the separate opinions of individual judges. The latter are
perfectly independent of the former. This point must particularly be
emphasized in the case of a dissenting opinion, because standing on a
quite different footing from the majority opinion, its freedom must be
greater.

Next, we shall consider this matter in the light of the present pro-
ceedings. The proceedings have gone through the preliminary objection
stage and are at the stage of the merits. Now the Court has decided on
the merits, but on a preliminary question of the legal interest leaving
the rest of the questions on the merits undecided. The reason that the
Court rejected the Applicants’ claims, is the lack of their legal right or
interest. |

Disagreement between the dissenting view and the majority view
is not limited to the matter of legal right or interest but it is concerned
with the whole attitude vis-à-vis all questions on the merits. The dissen-
ting judges are able to argue on the hypothesis that their contention
regarding the existence of the Applicants’ legal right or interest is well-
founded.

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This position is not the same as the position of a dissenting judge
in a decision rejecting an application by reason of the lack of the Court’s
jurisdiction. In that case the dissenting judge cannot deal with the matters
on the merits on the hypothesis that his view is right, because the pro-
ceedings are limited to the preliminary objection and the proceedings on
the merits have been suspended. The stage of the question of legal right
or interest, however, does not constitute independent proceedings like
preliminary objection proceedings, but is an integral part of the pro-
ceedings on the merits. Therefore, this question has not been dealt with
distinctly from other questions on the merits in the pleadings and oral
arguments.

In short, for the foregoing reasons the majority opinion cannot place
a limitation upon the separate and dissenting opinions; therefore judges
are entitled to deal with all matters on the merits entirely irrespective of

the content of the majority opinion.

The controversy between the Applicants and the Respondent on the
survival of the Mandate was the starting point of the preliminary ob-
jection proceedings of the present cases; the same applies to the pro-
ceedings on the merits. All claims and complaints of the Applicants,
being concerned with the interpretation and application of the Mandate,
are based on the continual existence of the Mandate; consequently, if
its existence could not be proved, they would necessarily fall away.

The Applicants’ Final Submissions Nos. 1 and 2 deal with the matter
of the survival of the Mandate. Submission No. 1 reads as follows:

- “South West Africa is a territory under the Mandate conferred
upon His Britannic Majesty by the Principal Allied and Associated
Powers, to be exercised on his behalf by the Government of the
Union of South Africa, accepted by His Britannic Majesty for and
on behalf of the Government of the Union of South Africa, and
confirmed by the Council of the League of Nations on December 17,

1920.”

_ By Submission No. 1, the Applicants define the international status
of the Territory of South West Africa and contend that this status is
not merely an historical fact, but continues to the present time.

By Submission No. 2 the Applicants further contend the continuation.
of the international obligations of the Respondent as Mandatory. It

reads as follows:
“Respondent continues to have the international obligations
stated in Article 22 of the Covenant of the League of Nations and

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in the Mandate for South West Africa as well as the obligation
to transmit petitions from the inhabitants of that Territory, the
supervisory functions to be exercised by the United Nations, to
which the annual reports and petitions are to be submitted.”

The Respondent’s final submissions (C.R. 65/95, pp. 53-54) which
are the same as set forth in the Counter-Memorial, Book I, page 6, and
the Rejoinder, Volume II, page 483, particularly contend in regard to
the question of the lapse or otherwise of the Mandate on the dissolution
of the League as follows:

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

2. In the alternative to (1) above, and in the event of it being
held that the Mandate as such continued in existence despite the
dissolution of the League of Nations;

(a) Relative to. Applicants’ Submissions Nos. 2, 7 and 8,

that Respondent’s former obligations under the Mandate to
report and account to, and to submit to the supervision of,
the Council of the League of Nations, lapsed upon the disso-
lution of the League...

(b) Relative to Applicants’ Submissions Nos. 3, 4, 5, 6 and 9,

that Respondent has not, in any of the respects alleged, violated
its obligations...”

*
* *

To resolve the question of the lapse or otherwise of the Mandate
on the dissolution of the League, some preliminary observations are
required concerning the legal and social nature and characteristics of
the mandates system.

The mandates system, established by the Covenant of the League
of Nations, can be considered as an original method of administering
certain underdeveloped overseas possessions which formerly belonged
to States in the First World War. “The essential principles of the man-
dates system” says the 1962 Judgment in the South West Africa cases—

“consist chiefly in the recognition of certain rights of the peoples
of the underdeveloped territories; the establishment of a regime
of tutelage for each of such peoples to be exercised by an advanced
nation as a ‘Mandatory’ ‘on behalf of the League of Nations’;
and the recognition of ‘a sacred trust of civilization’ laid upon the
League as an organized international community and upon its

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Member States. This system is dedicated to the avowed object of
promoting the well-being and development of the peoples concerned
and is fortified by setting up safeguards for the protection of their
rights.” (C.J. Reports 1962, p. 329.)

The idea that it belongs to the noble obligation of conquering powers
to treat indigenous peoples of conquered territories and to promote
their well-being has existed for many hundred years, at least since the
era of Vitoria. But we had to wait for the Treaty of Peace with Germany,
signed at Versailles in 1919, and the creation of the League of Nations
for this idea to take the concrete form of an international institution,
namely the mandates systém;'and to be realized by a large and compli-
cated machinery of implementation. After the dissolution of the League
the same idea and principles have been continued in the “International
Trusteeship System” in the Charter of the United Nations.

The above-mentioned essential principles of the mandates system
are important to decide the nature and characteristics of the Mandate
as a legal institution.

Here, we are not going to construct a more-or-less perfect definition
or concept of the Mandate. We must be satisfied to limit ourselves to the
points of which clarification would be necessary or useful to decide the
issue now in question.

The mandates system is from the viewpoint of its objectives, as well
of its structure, highly complicated. Since its objectives are the promotion
of the well-being and social progress of the inhabitants of certain terri-
tories as a sacred trust of civilization, its content and function are inti-
mately related to almost ali branches of the social and cultural aspects
of human life. Politics, law, morality, religion, education, strategy,
economy and history are intermingled with one another in inseparable
complexity. From the point of view of the Court the question is how to
draw the line of demarcation between what is law and what is extra-legal
matter, particularly politics which must be kept outside of justiciability
(we intend to deal with this question below).

The mandates system is from the structural viewpoint very complicated
The parties to the Mandate, as a treaty or convention, are on the one
side the League of Nations and on the other the Mandatory—in the
present cases the Respondent. The latter accepted the Mandate in
respect of the Territory of South West Africa “on behalf of the League
of Nations”. Besides these parties, there are persons who are connected
with the Mandate in some way, particularly who collaborate in the
establishment or the proper functioning of this system, such as the
Principal Allied and Associated Powers, to which these territories had
been ceded by the Peace Treaty, Members of the League, and those who
are interested as beneficiaries, namely the inhabitants of the mandated
territories. Whether or not, and to what degree the United Nations and

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its Members can be considered as concerned, belongs to the matters
which fall to be decided by the Court.

The Mandate, constituting an aggregate of the said diverse personal
elements, as we have seen above, presents itself as a complex of many
kinds of interests. The League and Mandatory, as parties to the Mandate,
have a common interest in the proper performance of the provisions of
the Mandate. The inhabitants of the mandated territories possess, as
beneficiaries, a most vital interest in the performance of the Mandate.

The Mandatory does not exercise the rights of tutelage of peoples
entrusted to it on behalf of itself, but on behalf of the League. The
realization of the “sacred trust of civilization” is an interest of a public
nature. The League is to serve as the existing political organ of the
international community by guarding this kind of public interest.

The Mandate, being of the said personal and real structure, possesses
in many points characteristics which distinguish it from other kinds
of treaties.

Firstly, the Mandate is intended to establish between parties a certain
legal relationship of which the aims and purposes are different from those
we find in the case of commercial treaties in which two different kinds
of operations stand reciprocally against each other and which are
extinguished with simultaneous performance by the parties. They are
a realization of identical aims, which is a “‘sacred trust of civilization”.
In this sense, the Mandate has characteristics similar to law-making
treaties, defined by Oppenheim as those “concluded for the purpose of
establishing new rules for the law of nations”. (Quincy Wright, Mandates
under the League of Nations, 1930, p. 357.)

What is intended by the parties of the mandate agreement as a “‘sacred
trust of civilization” is the promotion of the material and moral well-
being and social progress of the inhabitants of the territory who are
“not yet able to stand by themselves under the strenuous conditions of
the modern world”.

The Mandate is a legal method or machinery for achieving the above-
mentioned humanitarian purposes. Therefore, between the two parties
to the mandate agreement there does not exist a fundamental conflict
of interests or “exchange of balancing services” such as we recognize in
synallagmatic contracts (cf. Judge Bustamante’s separate opinion on
South West Africa cases, I.C.J. Reports 1962, pp. 357 and 359) or con-
tracts of the type do-ut-des. The mandate agreement can be characterized
rather as a union of two unilateral declarations, the one by the League,
the other by the Mandatory, a phenomenon which we find in cases of
creation of partnerships or corporations. Incidentally, this conclusion,
in our view, does not prevent the construction of the mandate agreement
as a kind of treaty or convention.

This characteristic is clearly manifest in the fact that the League can
be considered as a collaborator of the Mandatory by its power of super-

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vision and an adviser in the performance of the obligations of the
latter.

If we seek some type of legal concept analogous to the mandate
agreement in the field of private law, we can mention the terms “man-
datum””, “tutelage” and “trust”. These institutions possess some common
elements with the mandates system, although the principles governing
the latter cannot be exhaustively explained by those governing the for-
mer. The point which we indicated above, namely the identity of aims
between the parties, exists in the case of guardianship, tutelage and trust.

Secondly, the long-term nature of the mandate agreement is what
characterizes it from the other contracts. This character derives from the
nature of the purposes of the mandates system, namely the promotion
of material and moral well-being and social progress of the mandated
territories, which cannot be realized instantaneously or within a fore-
seeable space of time.

Thirdly, the mandate agreement requires from the Mandatory a
strong sense of moral conscience in fulfilling its responsibility as is
required in the case of guardianship, tutelage and trust. “The Mandatory
shall promote to the utmost the material and moral well-being and the
social progress of the inhabitants of the territory ...” The obligations
incumbent upon the Mandatory are of an ethical nature, therefore
unlimited. The mandate agreement is of the nature of a bona fide con-
tract. For its performance the utmost wisdom and delicacy are required.

From what is indicated above, it follows that, although the Mandatory
is conferred “full power of administration and legislation over the
territory”, the weight of the mandates system shall be put on the obliga-
tions of the Mandatory rather than on its rights. |

The 1962 Judgment, clarifying this characteristic of the mandates
system, declares as follows:

“The rights of the Mandatory in relation to the mandated terri-
tory and the inhabitants have their foundation. in the obligations
of the Mandatory and they are, so to speak, mere tools given to
enable it to fulfil its obligations.” (1.C.J. Reports 1962, p. 329.)

Judge Bustamante emphasized very appropriately (ibid., p. 357) the
more important aspect of responsibility rather than of rights regarding
the function of the Mandatory. The Mandatory must exercise its power
only for the purpose of realizing the well-being and progress of the
inhabitants of the territory and not for the purpose of serving its ego-
istic ends. As Professor Quincy Wright puts it, “it has been recognized
that the conception of mandates in the Covenant requires that the
Mandatory receive no direct profit from its administration of the terri-
tory’. This is called the “principle of gratuitous administration” (Quincy
Wright, op. cit., pp. 452-453).

From the nature and characteristics of the mandates system and the
mandate agreement, indicated above, we can conclude that, although
the existence of contractual elements in the Mandate cannot be denied,
the institutional elements predominate over the former. We cannot

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explain all the contents and functions of the mandates system from the
contractual, namely the individualistic, and subjective viewpoint, but
we are required to consider them from the institutional, namely col-
lectivistic, and objective viewpoint also. This latter viewpoint is, ac-
cording to Lord McNair, that of—

“ec

.. certain rights of possession and government (administrative
and legislative) which are valid in rem—erga omnes, that is against
the whole world, or at any rate against every State which was a Mem-
ber of the League or in any other way recognized the Mandate”.
(C.J. Reports 1950, p. 156.)

From the purely contractual and individualistic viewpoint the Mandate
would be a personal relationship between the two parties, the existence
of which depends upon the continuance of the same parties. For instance,
a mandate contract in private law lapses by reason of the death of the
mandator. But the international mandate does not remain, as we have
seen above, purely a relationship, but an objective institution, in which
several kinds of interests and values are incorporated and which maintains
independent existence against third parties. The Mandate, as an insti-
tution, being deprived of personal character, must be placed outside of
the free disposal of the original parties, because its content includes a
humanitarian value, namely the promotion of the material and moral
well-being of the inhabitants of the territories. Therefore, there shall
exist a certain limitation, derived from the characteristics of the Mandate,
upon the possibility of modification for which the consent of the Council
of the League of Nations is required (Article 7, paragraph 1, of the
Mandate).

*
* *

We shall now envisage the question whether, despite the dissolution of
the League of Nations the Mandate for South West Africa still exists,
and if so, whether the supervisory function of the League has passed to
the United Nations.

Let us consider, firstly, the question whether the Mandate still exists
despite the dissolution of the League.

The solution of this question may depend upon the question of the
essentiality or otherwise of the supervision of the Mandate, but it can
be answered independently of the latter, because if the Mandate as a
whole lapsed for some other reasons, there would be no question of its
supervision. The question of supervision presupposes the prima facie
continued existence of the Mandate. That is why this matter was dealt
with in detail in the 1950 Advisory Opinion and discussed at length
in the preliminary objection stage of the present cases in connection with
the survival of Article 7, paragraph 2, of the Mandate, which is con-
cerned with judicial supervision. Because we can, in the main, agree with
what was decided by the Court in 1950 and 1962, we need not go into the

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details of the question. We are satisfied to state simply the reasons why
we agree with the decisions of the Court.

The controversy concerning the survival or lapse of the Mandate on
the dissolution of the League, and accordingly of rights and obligations
created by it, may be, in its final instance, attributed to the fundamental
difference of methods existing in regard to the interpretation of law,
namely the antagonism between voluntarism and objectivism. Contro-
versies present themselves as to whether law cannot attribute certain
effects to a treaty or a convention—which the parties did not or could
not foresee at the moment of its inception—or whether law, on the
contrary through its interpretation may be expected to play the function
of filling the lacuna of juridical acts by creating certain legal effects
uncovered by the original intent of the parties.

From the point of view of purely juridical formalism, there is the
conclusion that, so far as the Mandate is conceived as a contract between
the two parties, namely the League of Nations on the one hand and the
Mandatory on the other, the dissolution of the League would produce,
as a necessary consequence, the absolute extinction of the Mandate
with all its legal vincula and that nothing remains thereafter. This is the
fundamental standpoint upon which the arguments of the Respondent
are based. This pure logicism is combined with strict voluntarism
according to which all legal consequences attached to a juridical act are
conceived as the effect of the will or intent of the parties. This is the
reason why the Respondent, since the preliminary objections stage, has,
concerning the interpretation of the Mandate, consistently attached
importance to the question of joint or common intent of the parties,
and why the Respondent has repeatedly invoked the “crucial new facts”
to refute the conclusion of the Advisory Opinion of 1950, which recog-
nized the transfer of international supervision from the League of
Nations to the United Nations.

It seems that the Respondent, analysing the Opinion, and assuming
that its conclusion of the transfer of the obligations is based on the
tacit consent of the parties, believes it has found a clue to re-examine
and reverse the 1950 Advisory Opinion by the presentation of the
“crucial new facts”. The essential viewpoint of the Opinion, however,
is based on the idea of “international institution with international
object—a sacred trust of civilization”, not much on consensual elements.

Tn accordance with the above analysis, we must attach more importance
to the institutional side of the Mandate, which, according to Lord
MeNair, is “valid in rem—erga omnes’. The 1950 Opinion says “the
object of the Mandate regulated by international rules far exceeded
that of contractual relations regulated by national law” (1.C.J. Reports
1950, p. 132). The Mandate as an institution is the starting point of the
Opinion and the most influential reason to justify the survival of the
Mandate notwithstanding the dissolution of the League.

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270 SOUTH WEST AFRICA (DISS. OP. TANAKA)

The vital interests of the inhabitants of the mandated territories,
being of primary importance, require that the Mandate shall not be
affected by the vicissitudes of international circumstances. In a mandate,
the matter of who the mandator is is not so important as who is the
mandatory. The position of mandatory, different from that of mandator,
for the reasons of special obligations which are incumbent upon him,
is highly personal and unable to be substituted by any other persons.
From the standpoint of the inhabitants, therefore, whether the mandate
is established on behalf of the League or whether it exists on behalf of
the United Nations is quite immaterial.

As a theoretical construction, the concept of the “organized inter-
national community” may be referred to in order to explain the legal
position of the mandatory. The mandatory owes obligations on behalf
of the League, but in the formal sense. Substantively, the mandatory
is responsible to an international entity which underlies the League as
a sociological reality, namely the organized international community,
which was represented by the League, and, after its dissolution, has been
represented by the United Nations. In short, we may conceive that,
after the dissolution of the League, the mandatory continues to have
obligations in relation to an impersonal entity, namely the organized
international community as before, which is personified as the United
Nations.

The only important matter is that a “sacred trust of civilization”? is
conscientiously carried out by the mandatories. The mandate, inspired
by the spirit of a “sacred trust of civilization”, once created by an
international agreement between the two parties, the League on the
one hand and the mandatory on the other, enjoys its perpetual objective
existence. The continual existence of the organized international com-
munity guarantees the objectivity and perpetuity of the mandate as an
international institution.

Lord McNair described this very appropriately in his separate opin-
ion—

“,..the Mandate created a status for South-West Africa. This fact
is important in assessing the effect of the dissolution of the League.
This status—valid in rem—supplies the element of permanence
which would enable the legal condition of the Territory to survive
the disappearance of the League, even if there were no surviving
personal obligations between the Union and other former Members
of the League. ‘Real’ rights created by an international agreement
have a greater degree of permanence than personal rights ...”
(.C.J. Reports 1950, pp. 156-157.)

The Mandate, being an institution, incorporates the above-mentioned
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271 SOUTH WEST AFRICA (DISS. OP. TANAKA)

several interests and values. It is a social organism and as such must be
maintained and protected.

In general, once condensed and conglomerated, social energies under
juridical techniques, such as a juridical person, partnership, company,
etc:, cannot easily be dismembered and disorganized by some external
or internal event. To avoid the loss of social and economic energies
and values of an enterprise which would be caused by liquidation, the
law establishes an institution of amalgamation or fusion which has an
effect analogous to universal succession in the case of a physical person.
This principle is the “Erhaltung des Unternehmens” (maintenance of
enterprise) as put forward by Rudolf Müller-Erzbach, which, according
to him is one of the important principles of commercial law (Die Erhaltung
des Unternehmens, Z. f. Handelsr., Vol. 61, 1911, pp. 530 ff.; Deutsches
_Handelsrecht, 2nd ed., 1927, pp. 71 ff.). The application of this idea is not
limited to matters of commercial law, but may be extended to other
social entities.

In short, the Mandate as a social entity must be maintained and
‘protected. From this viewpoint, we consider the Mandate does not lapse;
it continues to function. The existence of the League of Nations itself
is immaterial to the existence of the Mandate, on behalf of whom the
Mandate is carried out, apart from the question of supervision which is
dealt with below.

Moreover, under the hypothesis of the lapse of the Mandate caused
by the dissolution of the League, it cannot be asserted that the Mandate
suddenly ceased to exist at the moment of the dissolution of the League.
For the purpose of carrying out the liquidation of an entity the continued
existence of some of the functions is recognized by the law of both
Anglo-American as well as civil law countries (Observations, p. 447).
Both the defunct entities, the League and the Mandate, maintain their
de facto existence. From the viewpoint of the League, it is to be conceived
that its responsibilities concerning the Mandate still survive until its
future status is definitively established (for instance, the conclusion of
a trusteeship agreement); parallel with this, the continued existence of
the Mandate can be recognized for the same space of time.

In short, the doctrine of “carry-over” referred to by the Applicants
is a logical consequence of the aforesaid argument of the Mandate as
an institution. It may assist the Applicants’ cases in a supplementary
way.

The above-mentioned conclusions may coincide with what the parties
to the mandate agreement or those concerned with it really intended, or
they may not be necessarily so. The tacit intent of parties which is
referred to by the Applicants, if itis proved, may serve as a corroborating
ground to reach the same conclusion. But the Court will establish its

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conclusion on the theoretical basis independently of the psychological
intents of the parties or those concerned, which do not necessarily
coincide and from which it is not easy to derive any definite conclusion,
be it positive or negative. In this sense, the Court’s reference (Z.C.J.
Reports 1950, p. 134; ibid., 1962, p. 340) to the resolution of the League
of Nations of 18 April 1946, which said, inter alia:

“4, Takes note of the expressed intention of the Members of
the League now administering territories under Mandate to continue
to administer them for the well-being and development of the
peoples concerned in accordance with the obligations contained in
the respective Mandates, until other arrangements have been agreed
between the United Nations and the respective mandatory”,

is to be considered as possessing only subsidiary significance in the
reasoning of the Court.

*
* *

What is stated above is concerned with the survival of the Mandate
despite the dissolution of the League. We have arrived at the affirmative
conclusion, like the 1950 Advisory Opinion, but apart from the question
of international supervision of the Mandatory. We are required to
re-examine the issue in the light of international supervision, because
even if the survival of the Mandate can be recognized in general, it may
be denied in certain respects.

From the viewpoint of the Respondent, the international supervision
to which the Mandatory was subjected fell away with the disappearance
of the League, because the supervisory organ also disappeared with the
League, without being validly replaced by a corresponding organ of the
United Nations. The Respondent’s argument is based upon the viewpoint
that the international supervision under the League cannot be replaced
by the United Nations, because this supervision does not mean interna-
tional] supervision in abstracto but means supervision by a specific organ
of the League only.

The 1950 Opinion recognizes that the obligations of the Mandatory
to submit to international supervision survive with the Mandate and
that the supervisory function is exercised by the organ of the United
Nations. The Opinion rules as follows:

“The necessity for supervision continues to exist despite the
disappearance of the supervisory organ under the Mandates System.
It cannot be admitted that the obligation to submit to supervision
has disappeared merely because the supervisory organ has ceased
to exist, when the United Nations has another international organ

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performing similar, though not identical, supervisory functions.”
(C.J. Reports 1950, p. 136.)

The fundamental viewpoint of the Advisory Opinion is the recognition
of the non-severability of the obligations of the Mandatory to submit
to international supervision from its authority to administer the mandated
territory. This viewpoint can be maintained for the following reasons:

1. Continuous international supervision is required from the essence
of the mandates system. As the interests involved in the Mandate are
of a humanitarian and important nature, and as the power conferred
upon the mandatories is very extensive and mandatories possess wide
discretionary power (cf. Article 2, paragraph 1, of the Mandate) as
indicated below, the performance of obligations incumbent upon
mandatories cannot be unrestricted and unsupervised and left only to
the bona fide of mandatories. The mandatories possess no sovereignty
over the territories, but they have conferred on them very broad dis-
cretionary powers in the administration of the mandated territories.
Therefore, without some kind of supervision the attainment of the aim
and purpose of the mandates system must be illusory. The mechanism
of effective supervision is the necessity to prevent this system from
becoming simple /ex imperfecta or the abuse of power. This mechanism
constitutes an integral part of the mandates system as a social institution,
a social organism. Therefore, the contention of severability of the
Respondent is illogical.

2. The rights of tutelage of mandated areas are exercised by man-
datories but they are exercised on behalf of the League. They have
no sovereign powers; they are responsible to the League for the execution
of the term of the mandate (Quincy Wright, op. cit., p. 22). In this case
the League must have supervisory power as a guardian of public interest
of the organized international community of which the League constitutes
the organ.

3. The mandates system is generally recognized as a product of
compromise, at the period of its inception, between two principles:
annexation and internationalization. The principle of international
supervision by the League can be conceived as a product of compromise
between the two extremes. So long as the mandate survives, international
supervision as a factor of compromise must be continued by some
possible means to prevent the mandate from being transformed into a
kind of annexation.

4. The Respondent, while denying its obligations to submit to
supervision, insists on preserving its rights or authority to administer
the Territory. It.seems that the Respondent recognizes the severability
of its rights from its obligations, an attitude which is not in conformity
with the spirit of the mandates system. The 1950 Opinion declares:

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274 SOUTH WEST AFRICA (DISS. OP. TANAKA)

“The authority which the Union Government exercises over the
Territory is based on the Mandate. If the Mandate lapsed, as the
Union Government contends, the latter’s authority would equally
have lapsed. To retain the rights derived from the Mandate and
to deny the obligations thereunder could not be justified.” (Jbid.,
p. 133.)

The Respondent cannot properly defend itself against the Applicants’
argument criticizing its attitude as the “doctrine of partial lapse’’.

*
*# *

The survival of the Mandate as an institution, on the one hand,
requires, on the other hand, an international supervision because
supervision is essential to the proper functioning of the mandates system.
The question is whether the mechanism of international supervision
which existed under the League disappeared with its dissolution, not
being replaced by a similar mechanism. In the case of an affirmative
answer, the Mandate being paralysed, its proper administration would
become impossible and it would be highiy undesirable from the viewpoint
of the well-being and progress of the inhabitants of the Territory.

Fortunately, the problem of supervisory mechanism for the existing
Mandate is solved by the unforeseeable appearance of an international
organization, namely the United Nations which, in so far as the main
purposes are concerned, i.e., the maintenance of international peace and
security and the realization of humanitarian ideas, possesses a high
degree of similarity and homogeneity with the League of Nations.
Furthermore, we can assert that the United Nations constitutes a more
advanced form of international organization from several viewpoints,
namely scope and extension of the organized international community,
its organization and functions. The same can be said about the two
systems—trusteeship under the United Nations and the mandate under
the League of Nations. So far as a “sacred trust of civilisation”? regarding
territories whose peoples have not yet attained a full measure of self-
government is concerned, the international trusteeship system is
established under the United Nations. This system can be said to be the
more advanced continuation of the mandates system under the League
of Nations.

Therefore, it is not very unnatural and unreasonable to recognize
in the United Nations and the trusteeship system the successor of the
League and the mandates system respectively.

Nevertheless, we cannot recognize universal succession in the juridical
sense in these cases. Universal succession between the two entities,
namely the League and the United Nations did not occur. Neither can
the application of the provisions of the trusteeship system on the Mandate
be recognized without the conclusion of a trusteeship agreement. But
nobody would wonder that the Mandatory’s power once exercised on

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behalf of the League, from the necessity of circumstances, becomes
exercised on behalf of the United Nations, and consequently that
international supervisory power, once belonging to the League, now
belongs to the United Nations. The acceptance of this power and with
it the responsibility by the United Nations does not appear to constitute
ultra vires because the matter concerning the tutelage of backward
peoples without doubt lies within the scope and limit of the objectives of
the United Nations.

Neither is the replacement of the supervision by the League by that
of the United Nations detrimental to the Mandatory. The Respondent
invokes the difference between the way of supervision under the League
and that under the United Nations, namely the different composition
between the Permanent Mandates Commission and the Trusteeship
Council—composition by political elements or experts—and the differ-
ence in the voting method as between the Council of the League and the
General Assembly, that is, the unanimity or majority rule.

The last-mentioned points cannot be recognized in themselves as an
onerous burden imposed on the Respondent; the difference of the
method of composition as well as the voting method may affect in both
a favourable and unfavourable way. The absence of precise identity
between the two supervisory mechanisms cannot be considered as a
reason for denying the supervision itself.

As the mechanism of implementation of international supervision,
the majority opinion of 1950 refers to the United Nations as its organ .
(C.J. Reports 1950, pp. 136-137) contrary to the views of Lord McNair

(ibid., pp. 159-160) and Judge Read (ibid., pp. 166-169). This conclusion
cannot be derived from the express or tacit intent of the parties to the
mandate agreement and those concerned, because at the period of the
inception of the Mandate an event such as the dissolution of the League
surely could not be foreseen by them, and because the intention of the
parties and those concerned, and the surrounding circumstances at the
period of the dissolution of the League are susceptible of diverse inter-
pretations. There was a lacuna in the mandate agreement which should
be filled by the theoretical or logical interpretation by the Court.

The replacement of the League as a supervisory organ by the United
Nations is not normal; it is an exceptional phenomenon of the transitional
period which was produced by the non-conclusion of a trusteeship
agreement by the Respondent. What the Charter provided for the
future of existing mandates was the conclusion of trusteeship agreements
which, according to the majority opinion of 1950, the Respondent as
Mandatory was not legally obliged, but expected, to make.

The attitude of the Respondent that, on the one hand, it did not
enter into the trusteeship agreement which it would normally have been
expected under the Charter to conclude and that, on the other hand.

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it refuses to submit to international supervision because of the difference
of the mechanism of its implementation, is contrary to the spirit of the
Mandate and the Charter and cannot be justified.

In short, the maintenance and continuation of international super-
vision by the United Nations is derived from the nature of the Mandate
as an international institution aimed at the promotion of the material
and moral well-being and social progress of the inhabitants of territories
and independent of and notwithstanding its contractual origin. The
Mandate survives independently of the League and the necessity for the
supervision remains with the Mandate—this necessity being satisfied by
the United Nations as the above-cited 1950 Opinion points out.

*
* *

We have reached an affirmative conclusion as to the survival of the
Mandate as an international institution despite the dissolution of the
League. This conclusion was reached by the 1950 Advisory Opinion
and approved by the 1962 Judgment. Apart from the doctrinal basis
of this proposition, the continual existence of the Mandate as an in-
stitution, notwithstanding the dissolution of the League, is admitted
even by the Respondent. From the Respondent’s standpoint the denial
of the existence of the Mandate would mean denial of its rights to
administer the mandated territory also.

The recognition of the institutional side of the Mandate beside its
contractual side by the 1950 Advisory Opinion and the 1962 Judgment
can confer on the mandates system a durability beyond the life of the
League and an objective existence independent of the original or ulterior
intent of the parties. This recognition is nothing else but a product of
a scientific method of interpretation of the mandates system, in which
the consideration of spirit and objectives as well as social reality of this
system play important roles. This method of interpretation may be
called sociological or teleological, in contrast with strict juristic forma-
lism. Relying on the concept of the Mandate as an institution of a
sociological nature, we take a step forward out of traditional conceptional
jurisprudence, which would easily assert the lapse of the Mandate on
the dissolution of the League.

What has been said about the question of the survival of the Mandate
can be applied to the continuation of international supervision and the
replacement by the United Nations of the Council of the League. The
solution of the latter question is to be found in the same direction as
the former. The continuation of international supervision of the Mandate
by the United Nations is a logical conclusion of the survival of the
Mandate as an international institution.

It is argued that the Court’s Opinion on the existence of inter-
national supervision, namely the Respondent’s accountability to the
United Nations, is based on the doctrine of “necessity”, and that the

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Court cannot exceed the limitation incumbent upon it as a court of law.

Undoubtedly a court of law declares what is the law, but does not legis-
late. Inreality, however, where the borderline can be drawn is a very del-
icate and difficult matter. Of course, judges declare the law, but they do not
function automatically. We cannot deny the possibility of some degree
of creative element in their judicial activities. What is not permitted to
judges, is to establish law independently of an existing legal system,
institution or norm. What is permitted to them is to declare what can be
logically inferred from the raison d’être of a legal system, legal institution
or norm. In the latter case the lacuna in the intent of legislation or parties
can be filled.

So far as the continuance of international supervision is concerned,
the above-mentioned conclusion cannot be criticized as exceeding the
function of the Court to interpret law. The Court’s Opinion of 1950
on this question is not creating law simply for the reason of necessity
or desirability without being founded in law and fact. The survival of
the Mandate despite the dissolution of the League, the importance of
international supervision in the mandates system, the appearance of the
United Nations which, as the organized international community, it
characterized by political and social homogeneity with the defunct
League of Nations, particularly in respect of the “sacred trust” for
peoples who have not yet attained a full measure of self-government,
and the establishment of the international trusteeship system, the Res-
pondent’s membership in the United Nations, and, finally, the refusal
by the Respondent to conclude a trusteeship agreement as expected by
the Charter: these factors, individually and as a whole, are enough to
establish the continuation of international supervision by the United
Nations.

Consideration of the necessity that the paralysis of mandate without
supervision must be avoided, can by no means be denied. But we are not
going to deduce the above-mentioned conclusion from mere necessity
or desirability but from the raison d’étre and the theoretical construction
of the mandates system as a whole.

We, therefore, must recognize that social and individual necessity
constitutes one of the guiding factors for the development of law by
the way of interpretation as well as legislation. The principle of
effectiveness often referred to, may be applied to explain the viewpoint
of the ‘‘necessity” argument of the 1950 Advisory Opinion recognizing
the continued existence of the Mandate as well as international super-
vision (cf. Sir Hersch Lauterpacht, The Development of International
Law by the International Court, 1958, pp. 277-280).

In this case, we cannot deny that the necessity created the law inde-
pendently of the will of the parties and those concerned. The explanation
by the reasonably assumed intention of the parties (Oppenheim-Lauter-
pacht, International Law, Vol. I, 8th ed., p. 168) seems a compromise

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with voluntarism. “The reasonably assumed intention” is not identical
with the psychological intention which very probably did not exist. The
former shall be assumed by the Court taking into consideration all
legal and extra-legal factors, from which the “necessity” is not excluded.
These kinds of activities of judges are not very far from those of legis-
lators.

In parentheses, although the Court does not possess the power to
decide a case ex aequo et bono without the parties’ agreement (Article 38,
paragraph 2, of the Statute), the result of the interpretation mentioned
above can satisfy the requirement of justice and good sense. The contrary
solution shall be striking to most of those concerned and the public at
large.

Such attitude of interpretation has been known as a method of “‘libre
recherche scientifique” or “Freirecht’”, mainly in civil-law countries
for three-quarters of a century as emancipating judges from the rigid
interpretation of written laws and emphasizing the creative role in their
judicial activities. There is no reason to believe that the same method
should be denied in the field of international law except the opposing
tendency of strong voluntarism derived from the concept of sovereignty
and not being in conformity with the concept of law which attributes
to law an objective and independent existence from the will and intention
of those to whom law is addressed.

In short the difference of opinions on the questions before us is in
the final instance attributed to the difference between two methods of
interpretation: teleological or sociological and conceptional or forma-
listic.

*
* *

For the above-mentioned reasons (1) South West Africa is a territory
under the Mandate, and (2) Respondent continues to have the international
obligations stated in Article 22 of the Covenant of the League of Nations
and in the Mandate for South West Africa, the supervisory functions
to be exercised by the United Nations, to which the annual reports are
to be submitted. (As to the obligation to transmit petitions mentioned
in the Applicants’ Submission No. 2, we will deal with it below.) So far
as these matters are concerned, the Applicants’ Submissions Nos. 1 and
2 are well-founded.

peal

Now we must proceed to examine the Applicants’ Final Submissions
Nos. 3 and 4, which constitute the core of the present cases in the sense
that they are concerned with the fundamental obligations stipulated in
Article 2, paragraph 2, of the Mandate and Article 22 of the Covenant
of the League of Nations.

The submissions presented to the Court by the Applicants in the

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Memorials, supplemented in the Reply and amended during the oral
proceedings on 19 May 1965, are concerned with the complaints raised
against the Respondent as the Mandatory of the Territory of South
West Africa; they are fundamentally concerned with the allegations. by
the Applicants that the Respondent has violated the obligations in-
cumbent upon it by Article 22 of the Covenant of the League of Nations
and by the Mandate for South West Africa.

Although the submissions of Applicants include multiple obligations
resulting from the various provisions of the Covenant and the Mandate,
i.e., Article 2, paragraph 2, Articles 4, 6 and 7, paragraph 1, the main
legal questions involved in the present cases are undoubtedly those
concerning the obligations of the Respondent as the Mandatory stipu-
lated in Article 2, paragraph 2, of the Mandate: obligations to “promote
to the utmost the material and moral well-being and the social progress
of the inhabitants of the Territory”.

In the following statement of our view, we consider that it is more
convenient, in dealing with the submissions of the Applicants, to dis-
tinguish general questions, namely the matters concerning the general
obligations of the Respondent as Mandatory as provided for in Article 2,
paragraph 2, of the Mandate and Article 22 of the Covenant from those
stipulated in particular provisions of the Mandate and the Covenant,
and to deal with the former before the latter.

Briefly, the legal issues of the present cases are centred in the final
analysis on the question of compliance or otherwise by the Respondent
as Mandatory with the obligations declared in Article 2, paragraph 2,
of the Mandate for the Territory of South West Africa, which is nothing
else but the concrete application to this Territory of the principle enunci-
ated in Article 22, paragraph 1, of the Covenant concerning the mandates
system in general.

Before examining the Applicants’ Submissions Nos. 3 and 4 in detail,
we must envisage the question of the justiciability raised by the Respon-
dent of the dispute of the present cases. If the dispute of these cases is
political, administrative, technical or otherwise in character, and not of
legal character, the Court will have no power to exercise its jurisdiction
over it.

Regarding this matter, it must be recalled that the contention of the
political character of the dispute was not raised by the Respondent to
the Court at the stage of the preliminary objection proceedings and that
it was made later during the first stage of the oral proceedings by counsel
for the Respondent (C.R. 65/18, pp. 6 ff.). It is to be noted that this
contention is related only to the general obligations incumbent upon the
Respondent by Article 2, paragraph 2, and Article 22 of the Covenant
as Mandatory and not to specific obligations provided for in Articles 3,
4, 5, 6 and 7 of the Mandate. Accordingly, the arguments between the
Parties concerning the justiciability of the dispute of the present cases
have particular significance only in relation to the Applicants’ Sub-
missions Nos. 3 and 4 which are concerned with the general principles
and objectives of the mandates system.

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The Mandate cannot be conceived as divorced from political, ad-
ministrative, economic, technical and cultural factors and as a result
this consideration makes the question of justiciability more complicated.

The Respondent denies the justiciability of matters pertaining to
Article 2, paragraph 2, of the Mandate. The reason thereof is found
in the nature of the power of the Mandatory which is political and
technical, therefore wide, general and, accordingly, discretionary.

The objectives of the mandates system are declared to be “the well-
being and development” of such peoples, namely “peoples not yet able to
stand by themselves under the strenuous conditions of the modern world”.

The “well-being and development” mean “the material and moral
well-being and the social progress”. (Article 2, paragraph 2, of the
Mandate.) That these objectives form a “sacred trust of civilization”
and “that securities for the performance of this trust should be embodied
in this Covenant”, is the principle which should be applied to the colonies
and territories under the mandates system. The securities for the per-
formance of the trust are provided in the Covenant as well as in the
individual mandate instruments, but the objectives of the mandates
system are broad, abstract and comprehensive as is shown by the use
of words such as “well-being”, “development” and “progress”.

Strictly speaking, these concepts having the character of a value
judgment are susceptible of taking different contents according to various
philosophical, theological, political systems and ways of thinking, and
consequently it may be extremely difficult for everybody to agree on
what is meant or implied by these terms, and on the degree of importance
which should be attached to a value in the whole hierarchy of values.
What is meant by well-being or progress? Which one has priority in case
of conflict between material and moral well-being? Is there any difference
between ‘‘progress” and “development”? Concerning the latter two
concepts there may be great divergence of standpoints between evolution-
ists or pragmatists and conservatives. Concerning the appreciation of
the moral well-being and what it consists of idealists and materialists
may differ one from the other.

The creators of Article 22 and the drafters of the Mandate agreement,
however, do not appear to have scrutinized these matters from the above-
mentioned point of view. They wanted to indicate by this simple formula
the goal of good government as it should be applied to the administration
of mandated territories. They wanted to find some idea or principle which
could be considered a common denominator among divergent political
ideas and thoughts on good government just as it is inevitable in the
case of indicating a constitutional aim of a democratic State or, in an
analogous case, of an international organization whose purposes are
as general as those of the League of Nations or the United Nations.

Let us suppose that the legislators of a certain political community
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succeeded in finding a constitutional formula which the majority of its
members could agree to adopt. Still one cannot be optimistic about
its interpretation. Everyone would interpret it according to his own
philosophical or political viewpoint; each would attach a different
meaning to the same slogan. The necessary conclusion would be sub-
jectivism, relativism and anarchism in the interpretation and multiplicity
of political parties in a democratic society.

The fact that, in most cases, political communities under abstract
principles which would indicate general orientation to the politics and
administration, stand, survive, maintain and even prosper, is not attri-
butable to the legislative technique or the manner in which the objectives
of the communities in their constitutions are expressed, but, in final
instance, to the common-sense and political wisdom of the leaders and
constituents of the respective communities.

From what has been mentioned above, we are inclined to conclude
that the concept of the promotion of “material and moral well-being
and social progress of the inhabitants” which constitutes the objectives
of the Mandate for South West Africa (Article 2, paragraph 2), is in
itself of political character and cannot be recognized as susceptible of
judicial determination and execution.

By saying so we do not assert that Article 2, paragraph 2, of the
Mandate does not possess the character of a legal norm. Legislators can
adopt in the system of legal norms other cultural norms, which are
socially relevant, namely moral, political, economic, technical norms,
etc., as distinct from the juridical value judgment. In such cases, a
cultural norm quite heterogeneous in character to legal norm, e.g., in
the control of traffic or architecture, is incorporated in the system of
law. In such cases, we may say that a technique is vested with juridical
value, or that a technique is “naturalized” in the system of law.

Such “naturalization” between legal and other cultural norms occurs
most frequently between law on the one hand and morals and politics
on the, other. The article with which we are now confronted is one of the
typical examples of such “naturalization”’.

The promotion of the material and moral well-being and the social
progress of the inhabitants, are the ultimate objectives which the Manda-
tory is obliged to realize. These objectives are essentially of a political
nature, but moral and humanitarian as well. In this case the political
and moral obligations of the Mandatory, as an effect of the mandate
agreement, are incorporated into the law.

The obligations incumbent upon the Respondent as Mandatory are
different from its specific duties enumerated in the Covenant and mandate
agreement and, clearly defined from the viewpoint of their content,
present themselves as the supreme goal of the mandates system which
is of political character. These obligations are therefore general, vague
and abstract, and, accordingly, they are not susceptible of judicial
execution, in spite of the fact that we cannot deny the legal character of
the mandate agreement in its entirety.

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This is a reason why, even in countries where the institution of consti-
tutional judicial review is adopted, some of the higher principles of
the constitution are by doctrine and practice excluded from the function
of courts of law. The execution of some constitutional provisions is not
guaranteed as in the case of lex imperfecta.

This is a consequence of the essential difference between law and
politics or administration.

The essential difference between law and politics or administration
lies in the fact that law distinguishes in a categorical way what is right
and just from what is wrong and unjust, while politics and administration,
being the means to attain specific purposes, and dominated by consider-
ations of expediency, make a distinction between the practical and the
unpractical, the efficient and the inefficient. Consequently, in the judg-
ment of law there is no possibility apart from what is just or unjust
(tertium non datur), in the case of politics and administration there are
many possibilities of choice from the viewpoint of expediency and
efficiency. Politics are susceptible of gradation, in contrast to law which
is categorical and absolute.

As has been mentioned above, the purposes and content of a good
government are vague and are not precisely defined. Suppose we in-
dicate it by a formula such as the promotion of “the material and
moral well-being and social progress” as in the case of the Mandate
for South West Africa. An infinite number of policies can be conceived
that would achieve the purposes of good government, which are general
and abstract. In concrete, individual cases, the objectives which should
be achieved may be spiritual or material, direct or indirect, important
or less important, essential or non-essential, urgent or non-urgent. Good
government is concerned with the choice of means to attain certain
ends. This is a characteristic of politics and administration where the
discretionary power of the competent authorities prevails, and since
the Mandate aims at the well-being and progress of the inhabitants, it
therefore belongs to the category of politics and administration, is
characterized by the discretionary nature of the Mandatory’s activities.

Briefly, to promote the well-being and progress of the inhabitants,
many policies and measures are conceivable. The Mandatory has a
discretionary power to choose those it considers to be the most appro-
priate and efficient means of realizing the said objectives of the Mandate.

There is a question, posed by Judge Sir Gerald Fitzmaurice on
7 May 1965 (C.R. 65/27, pp. 57-59) to both Parties, in relation to
whether the requirement of the “promotion of well-being and social
progress” can be satisfied by any total increase, namely by considering
the progress “on balance”, or whether the existence of a total increase
on the one side cannot itself be considered as the achievement of “‘pro-
motion of the well-being and progress”, if, on the other side, there exists,
on the part of the government, any failure to promote well-being and
progress. If one takes the view that the Mandatory is in principle given

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discretionary power to perform the obligations imposed by Article 2,
paragraph 2, of the Mandate, namely the well-being and progress of
the inhabitants, it follows that it can choose quite freely any policies
or measures which it considers appropriate to realize this objective;
accordingly, any partial failure in respect of specific policies or measures
cannot necessarily be considered to constitute a breach of the Mandate.
The reason therefor is that the discretionary power recognized as being
conferred on the Mandatory includes its capacity of value judgment as
between various possible policies and measures to be taken to realize
the objectives of the Mandate.

Furthermore, the concept of the well-being and progress involves a
quantitative factor. One cannot ascertain whether, at a certain point
of time, the well-being and progress have been achieved or not. That
the Mandatory is required to promote “to the utmost” (English) or
‘par tous les moyens en son pouvoir” (French) means that the obligations
of the Mandatory provided by Article 2, paragraph 2, are elastic and
that there exists a possibility of wide discretion for their performance.

Investigation of the degree of expediency is not a matter for courts
of law to deal with. The appropriateness of the exercise of a discretionary
power by the Mandatory does not belong to matters subject to the
jurisdiction of a court of law. Therefore the contention of the Respondent
that the exercise of the Mandatory’s power is discretionary, and that it
is not justiciable unless the power has been exercised in bad faith, can
be recognized as being fundamentally right. The political obligations
are in themselves incompatible with judicial review.

That the Mandatory has discretionary power concerning the ad-
ministration of the Territory is declared by Article 2, paragraph 1,
which provides: “The Mandatory shall have full power of administration
and legislation over the territory...”

What has been said above does not mean that the Mandatory has
an unlimited right to exercise the discretionary power conferred upon
it for the performance of the obligations imposed by the Mandate.
The exercise of this power is primarily limited by the individual provisions
of the mandate instrument and Article 22 of the Covenant. Article 2,
paragraph 1, provides that “... the full power of administration and
legislation ... subject to the present Mandate ...”. The Applicants
indeed based their Submissions Nos. 5, 6, 7 and 9 on Article 2, para-
graph 1, of the Mandate, Article 22 of the Covenant, Article 6 of the

. Mandate and Article 22 of the Covenant, and Article 7, paragraph 1,
of the Mandate respectively. Concerning these points, justiciability on
the Applicants’ submissions cannot be denied and the Respondent does
not dare to deny it. Controversy on the justiciability of the present cases
would accordingly be limited to the Applicants’ Submissions Nos. 3 and
4 which are related only to Article 2, paragraph 2, of the Mandate and
Article 22 of the Covenant to the extent that it is concerned with Article 2,
paragraph 2, of the Mandate.

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From this viewpoint the question is whether the wide discretionary
power conferred by Article 2, paragraph 1, excludes any possibility of
a breach of the Mandate other than a breach of individual provisions
of the Mandate and the Covenant indicated above. If any legal norm
exists which is applicable to the exercise of the discretionary power of
the Mandatory, then it will present itself as a limitation of this power,
and the possible violation of this norm would result in a breach of the
Mandate and hence the justiciability of this matter.

*
* *

Now we shall examine Nos. 3 and 4 of the Applicants’ final sub-
missions. Submission No. 3 reads as follows:

“Respondent, by laws and regulations, and official methods and
measures, which are set out in the pleadings herein, has practised
apartheid, i.e., has distinguished as to race, colour, national or
tribal origin in establishing the rights and duties of the inhabitants
of the Territory; that such practice is in violation of its obligations
as stated in Article 2-of the Mandate and Article 22 of the Covenant
of the League of Nations; and that Respondent has the duty forth-
with to cease the practice of apartheid in the Territory;” (Applicants’
final submissions, C.R. 65/35, p. 69).

At the same time, Applicants have presented another submission
(Submission No. 4) which states as follows:

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

The President, Sir Percy Spender, for the purpose of clarification,
addressed a question to the Applicants in relation to Submissions 3 and
4 in the Memorials at page 197, which are not fundamentally different
from the above-mentioned Final Submissions Nos. 3 and 4. He asked
what was the distinction between one (i.e., Submission No. 3) and the
other (i.e., Submission No. 4). (C.R. 65/23, 28 April 1965, p. 31.)

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The response of the Applicants on this point was that the distinction
between the two Submissions 3 .and 4 was verbal only (19 May 1965,
C.R. 65/35, p. 71). This response, being made after the amendment of
the Applicants’ submissions, may be considered as applicable to the
amended Submissions Nos. 3 and 4.

It should be pointed out that the main difference between the original
and the Final Submissions Nos. 3 and 4 is that a phrase, namely: “‘in the
light of applicable international standards or international legal norm,
or both” is inserted between “has” and “failed to promote to the ut-
most ...” which seems to make clear the substantive identity existing
between these two submissions.

Now we shall analyse each of these submissions, which occupy the
central issue of the whole of the Applicants’ submissions and upon
which the greater part of the arguments of the Parties has been focused.
This issue is without doubt the question concerning the policy of apart-
heid which the Respondent as Mandatory is alleged to have practised.

First, we shall deal with the concept of apartheid. The Applicants,
in defining apartheid, said: “Respondent ... has distinguished as to
race, colour, national or tribal origin in establishing the rights and duties
of the inhabitants of the Territory.”

Tt may be said that, as between the Parties, no divergence of opinion
on the concept of apartheid itself exists, notwithstanding that the Re-
spondent prefers to use other terminology, such as “‘separate develop-
ment”, instead of “apartheid”. Anyhow, it seems that there has been no
‘ argument concerning the concept of apartheid itself. Furthermore, we
can also recognize that the Respondent has never denied its practice
of apartheid; but it wants to establish the legality and reasonableness of
this policy under the mandates system and its compatibility with the
obligations of the Respondent as Mandatory, as well as its necessity to
perform these obligations.

Submission No. 3 contends that such practice (i.e., the practice of
apartheid) is in violation of its obligations as stated in Article 2 of the
Mandate and Article 22 of the Covenant. However, the Applicants’
contention is not clear as to whether the violation, by the practice of
apartheid, of the Respondent’s obligation is conceived from the viewpoint
of politics or law. If we consider Submission No. 3, only on the basis of
its literal interpretation, it may be considered to be from the viewpoint
of politics; this means that the policy of apartheid is not in conformity
with the objectives of the Mandate, namely the promotion of well-being
and social progress of the inhabitants without regard to any conceivable
legal norm or standards. If the Applicants maintain this position, the
issue would be a matter of discretion and the case, so far as this point
is concerned, would not be justiciable, as the Respondent has contended.

Now the Applicants do not allege the violation of obligations by the
Respondent independently of any legal norm or standards. Since the
Applicants amended Submission No. 4 in the Memorials and inserted

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a phrase “in the light of applicable international standards or international
legal norm”, the violation of the obligations as stated in Article 2 of the
Mandate and Article 22 of the Covenant (Submission No. 3) which is
identical with the failure to promote to the utmost the material and
moral well-being and social progress of the inhabitants of the Territory
(Submission No. 4) has come to possess a special meaning; namely
of a juridical character. Applicants’ cause is no longer based directly on
a violation of the well-being and progress by the practice of apartheid,
but on the alleged violation of certain international standards or inter-
national legal norm and not directly on the obligation to promote the
well-being and social progress of the inhabitants. There is no doubt that,
if such standards and norm exist, their observance in itself may constitute
a part of Respondent’s general obligations to promote the well-being
and social progress.

From what is said above, the relationship between the Applicants’
Submissions Nos. 3 and 4 may be understood as follows. The two sub-
missions deal with the same subject-matter, namely the illegal character
of the policy and practice of apartheid. However, the contents of each
submission are not quite the same, consequently the distinction between
the two submissions is not verbal only, as Applicants stated in answer
to the question of the President; each seems to be supplementary to the
other.

Briefly, the Applicants’ Submissions Nos. 3 and 4, as newly formulated,
rest upon a norm and/or standard. This norm or standard has been
added by the Applicants to Submission No. 4. The existence of this norm
or standard to be applied to the Mandate relationships, according to
the Applicants’ allegation, constitutes a legal limitation of the Respon-
dent’s discretionary power and makes the practice of apartheid illegal,
and accordingly a violation of the obligations incumbent on the Manda-
tory.

What the Applicants mean by apartheid is as follows:

“Under apartheid, the status, rights, duties, opportunities and
burdens of the population are determined and allotted arbitrarily
on the basis of race, color and tribe, in a pattern which ignores the
needs and capacities of the groups and individuals affected, and
subordinates the interests and rights of the great majority of the
people to the preferences of a minority ... It deals with apartheid
in practice, as it actually is and as it actually has been in the life of the
people of the Territory ...’’ (Memorials, p. 108.)

The Applicants contend the existence of a norm or standards which
prohibit the practice of apartheid. These norm or standards are nothing
other than those of non-discrimination or non-separation.

The Respondent denies the existence of a norm or standard to prohibit

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the practice of apartheid and tries to justify this practice from the dis-
cretionary nature of the Mandatory’s power. The Respondent emphasizes
that the practice of apartheid is only impermissible when it is carried out
in bad faith.

From the viewpoint of the Applicants, the existence, and objective
validity, of a norm of non-discrimination make the question of the in-
tention or motivation irrelevant for the purposes of determining whether
there has been a violation of this norm. The principle that a legal precept,
as opposed to a moral one, in so far as it is not specifically provided
otherwise, shall be applied objectively, independently of motivation on
the part of those concerned and independently of other individual
circumstances, may be applicable to the Respondent’s defence of bona
fides.

+
* *

Here we are concerned with the existence of a legal norm or standards
regarding non-discrimination. It is a question which is concerned with
the sources of international law, and, at the same time, with the mandate
law. Furthermore, the question is intimately related to the essence and
nature of fundamental human rights, the promotion and encouragement
of respect for which constitute one of the purposes of the United Nations
(Article 1, paragraph 3, Charter of the United Nations), in which the
principle of equality before the law occupies the most important part
—a principle, from the Applicants’ view, antithetical to the policy of
apartheid.

What is meant by “international norm or standards” can be understood
as being related to the principle of equality before the law.

The question is whether a legal norm on equality before the law
exists in the international sphere and whether it has a binding power upon
the Respondent’s conduct in carrying out its obligations as Mandatory.
The question is whether the principle of equality before the law can find
its place among the sources of international law which are referred to in
Article 38, paragraph 1.

Now we shall examine one by one the sources of international law
enumerated by the above-mentioned provision.

First we consider the international conventions (or treaties). Here
we are not concerned with “‘special” or “particular” law-making bilateral
treaties, but only with law-making multilateral treaties such as the Charter
of the United Nations, the Constitution of the International Labour
Organisation, the Genocide Convention, which have special significance
as legislative methods. However, even such law-making treaties bind
only signatory States and they do not bind States which are not parties
to them.

The question is whether the Charter of the United Nations contains
a legal norm of equality before the law and the principle of non-dis-

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crimination on account of religion, race, colour, sex, language, political
creed, etc. The achievement of international co-operation in “promoting
and encouraging respect for human rights and for fundamental freedoms
for all without distinction as to race, sex, language, or religion” consti-
tutes one of the purposes of the United Nations (Article 1, paragraph 3).
Next, the General Assembly shall initiate studies and make recommen-
dations for the purpose of: “... (b) ... and assisting in the realization
of human rights and fundamental freedoms without distinction as to
race, sex, language, or religion” (Article 13, paragraph 1 (6)). “Uni-
versal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language, or re-
ligion” is one of the items which shall be promoted by the United Nations
in the field of international economic and social co-operation (Articles 55
(c), 56). In this field, the Economic and Social Council may make
recommendations for the purpose of promoting respect for, and obser-
vance of, human rights and fundamental freedoms for all (Article 62,
paragraph 2, Charter). Finally, “to encourage respect for human rights
and for fundamental freedoms for all without distinction as to race, sex,
language or religion” is indicated as one of the basic objectives of the
trusteeship system (Article 76 (c)).

The repeated references in the Charter to the fundamental rights and
freedoms—at least four times—presents itself as one of its differences
from the Covenant of the League of Nations, in which the existence of
intimate relationships between peace and respect for human rights were
not so keenly felt as in the Charter of the United Nations. However,
the Charter did not go so far as to give the definition to the fundamental
rights and freedoms, nor to provide any machinery of implementation
for the protection and guarantee of these rights and freedoms. The
“Universal Declaration of Human Rights and Fundamental Freedoms”
of 1948 which wanted to formulate each right and freedom and give them
concrete content, is no more than a declaration adopted by the General
Assembly and not a treaty binding on the member States. The goal of the
codification on the matter of human rights and freedoms has until now
not been reached save in very limited degree, namely with the European
Convention for the Protection of Human Rights and Fundamental
Freedoms of 1953, the validity of which is only regional and not universal
and with a few special conventions, such as “genocide” and political rights
of women, the application of which is limited to their respective matters.

In view of these situations, can the Applicants contend, as an interpre-
tation of the Charter, that the existence of a legal norm on equality
before the law, which prescribes non-discrimination on account of
religion, race, colour, etc., accordingly forbids the practice of apartheid?
Is what the Charter requires limited only “to achieve international

co-operation ... in promoting and encouraging respect for human
rights and for fundamental freedoms ...” and other matters referred
to above?

Under these circumstances it seems difficult to recognize that the
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Charter expressly imposes on member States any legal obligation with
respect to the fundamental human rights and freedoms. On the other
hand, we cannot ignore the enormous importance which the Charter
attaches to the realization of fundamental human rights and freedoms.
Article 56 states: ““AIl Members pledge themselves to take joint and
separate action in co-operation with the Organization for the achievement
of the purposes set forth in Article 55.” (Article 55 enumerates the
purposes of international economic and social co-operation, in which
“universal respect for, and observance of, human rights and fundamental
freedoms” is included.) Well, those who pledge themselves to take
action in co-operation with the United Nations in respect of the pro-
motion of universal respect for, and observance of, human rights and
fundamental freedoms, cannot violate, without contradiction, these
rights and freedoms. How can one, on the one hand, preach respect for
human rights to others and, on the other hand, disclaim for oneself
the obligation to respect them? From the provisions of the Charter
referring to the human rights and fundamental freedoms it can be inferred
that the legal obligation to respect human rights and fundamental
freedoms is imposed on member States.

Judge Spiropoulos confirmed the binding character of the human
rights provisions of the Charter:

“As the obligation to respect human rights was placed upon
Member States by the Charter, it followed that any violation of
human rights was a violation of the provision of the Charter.”
(G.A., O.R., 3rd Session, 6th Committee, 138th Meeting, 7 December
1948, p. 765.)

Judge Jessup also attributed the same character to the human rights
provisions:

“Since this book is written de lege ferenda, the attempt is made
throughout to distinguish between the existing law and the future
goals of the law. It is already the law, at least for Members of the
United Nations, that respect for human dignity and fundamental
human rights is obligatory. The duty is imposed by the Charter.”
(Philip C. Jessup, Modern Law of Nations, 1948, p. 91.)

Without doubt, under the present circumstances, the international
protection of human rights and fundamental freedoms is very imperfect.
The work of codification in this field of law has advanced little from the
viewpoint of defining each human right and freedom, as well as the
machinery for their realization. But there is little doubt of the existence
of human rights and freedoms; if not, respect for these is logically
inconceivable; the Charter presupposes the existence of human rights
and freedoms which shall be respected; the existence of such rights and
freedoms is unthinkable without corresponding obligations of persons
concerned and a legal norm underlying them. Furthermore, there is no
doubt that these obligations are not only moral ones, and that they

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also have a legal character by the very nature of the subject-matter.

Therefore, the legislative imperfections in the definition of human
rights and freedoms and the lack of mechanism for implementation,
do not constitute a reason for denying their existence and the need for
their legal protection.

Furthermore, it must be pointed out that the Charter provisions, as
indicated above, repeatedly emphasize the principle of equality before
the law by saying, ‘“‘without distinction as to race, sex, language or
religion’.

Under the hypothesis that in the United Nations Charter there exists
a legal norm or standards of non-discrimination, are the Applicants,
referring to this norm, entitled to have recourse to the International
Court of Justice according to Article 7, paragraph 2, of the Mandate?
The Respondent contends that such an alleged norm does not constitute
a part of the mandate agreement, and therefore the question on this norm
falls outside the dispute, which, by the compromissory clause, is placed
under the jurisdiction of the International Court of Justice. The Appli-
cants’ contention would amount to the introduction of a new element into
the mandate agreement which is alien to this instrument.

It is evident that, as the Respondent contends, the mandate agreement
does not stipulate equality before the law clause, and that this clause does
not formally constitute a part of the mandate instrument. Nevertheless,
the equality principle, as an integral part of the Charter of the United
Nations or as an independent source of general international law, can be
directly applied to the matter of the Mandate either as constituting a kind of
law of the Mandate in sensu lato or, at least in respect of standards, as
a principle of interpretation of the mandate agreement. Accordingly, the
dispute concerning the legality of apartheid comes within the field of the
interpretation and application of the provisions of the Mandate stipulated
in Article 7, paragraph 2, of the Mandate.

This conclusion is justified only on the presupposition that the Respon-
dent is bound by the Charter of the United Nations not only as a member
State but also as a Mandatory. The Charter, being of the nature of
special international law, or the law of the organized international
community, must be applied to all matters which come within the
purposes and competence of the United Nations and with which member
States are concerned, including the matter of the Mandate. Logic re-
quires that, so long as we recognize the unity of personality, the same
principle must govern both the conduct of a member State in the United
Nations itself and also its conduct.as a mandatory, particularly in the
matter of the protection and guarantee of human rights and freedoms.

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Concerning the Applicants’ contention attributing to the norm of
non-discrimination or non-separation the character of customary
international law, the following points must be noted.

The Applicants enumerate resolutions and declarations of international
organs which condemn racial discrimination, segregation, separation
and apartheid, and contend that the said resolutions and declarations
were adopted by an overwhelming majority, and therefore have binding
power in regard to an opposing State, namely the Respondent. Con-
cerning the question whether the consent of all States is required for
the creation of a customary international law or not, we consider that
the answer must be in the negative for the reason that Article 38, para-
graph 1 (b), of the Statute does not exclude the possibility of a few
dissidents for the purpose of the creation of a customary international
law and that the contrary view of a particular State or States would
result in the permission of obstruction by veto, which could not have
been expected by the legislator who drafted the said Article.

An important question involved in the Applicants’ contention is
whether resolutions and declarations of international organs can be
recognized as a factor in the custom-generating process in the interpre-
tation of Article 38, paragraph 1 (0), that is to say, as “evidence of a
general practice”.

According to traditional international law, a general practice is the
result of the repetition of individual acts of States constituting consensus
in regard to a certain content of a rule of law. Such repetition of acts is
an historical process extending over a long period of time. The process
of the formation of a customary law in this case may be described as
individualistic. On the contrary, this process is going to change in adapt-
ing itself to changes in the way of international life. The appearance of
organizations such as the League of Nations and the United Nations,
with their agencies and affiliated institutions, replacing an important
part of the traditional individualistic method of international negotiation
by the method of “parliamentary diplomacy’ (Judgment on the South
West Africa cases, I.C.J. Reports 1962, p. 346), is bound to influence the
mode of generation of customary international law. A State, instead of
pronouncing its view to a few States directly concerned, has the oppor-
tunity, through the medium of an organization, to declare its position
to all members of the organization and to know immediately their
reaction on the same matter. In former days, practice, repetition and
opinio juris sive necessitatis, which are the ingredients of customary
law might be combined together in a very long and slow process extending
over centuries. In the contemporary age of highly developed techniques
of communication and information, the formation of a custom through
the medium of international organizations is greatly facilitated and
accelerated; the establishment of such a custom would require no more
* than one generation or even far less than that. This is one of the examples
of the transformation of law inevitably produced by change in the social
substratum.

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Of course, we cannot admit that individual resolutions, declarations,
judgments, decisions, etc., have binding force upon the members of the
organization. What is required for customary international law is the
repetition of the same practice; accordingly, in this case resolutions,
declarations, etc., on the same matter in the same, or diverse, organi-
zations must take place repeatedly.

Parallel with such repetition, each resolution, declaration, etc., being
considered as the manifestation of the collective will of individual
participant States, the will of the international community can certainly
be formulated more quickly and more accurately as compared with the
traditional method of the normative process. This collective, cumulative
and organic process of custom-generation can be characterized as the
middle way between legislation by convention and the traditional process
of custom making, and can be seen to have an important role from the
viewpoint of the development of international law.

In short, the accumulation of authoritative pronouncements such as
resolutions, declarations, decisions, etc., concerning the interpretation
of the Charter by the competent organs of the international community
can be characterized as evidence of the international custom referred
to in Article 38, paragraph 1 (0).

In the present case the Applicants assert the existence of the internatio-
nal norm and standards of non-discrimination and non-separation and
refer to this source of international law. They enumerate resolutions of
the General Assembly which repeatedly and strongly deny the apartheid
policy of racial discrimination as an interpretation of the Charter
(General Assembly resolution 1178 (XII) of 26 November 1957; reso-
lution 1248 (XIII) of 30 October 1958; resolution 1375 (XIV) of
17 November 1959; resolution 1598 (XV) of 13 April 1961; and resolutions
of the Security Council (with regard to apartheid as practised in the
Republic of South Africa); resolution of 7 August 1953 which declares
the inconsistency of the policy of the South African Government with
the principles contained in the Charter of the United Nations and with
its obligations as a member State of the United Nations; resolution of
4 December 1963 which declares “‘. . . the policies of apartheid and racial
discrimination ... are abhorrent to the conscience of mankind ...”.
‘The Applicants cite also the report of the Committee on South West
Africa for 1956.)

Moreover, the 11 trust territories agreements, each of them containing
a provision concerning the norm of official non-discrimination or non-
separation on the basis of membership in a group or race, may be con-
sidered as contributions to the development of the universal acceptance
of the norm of non-discrimination, in addition to the meaning which
each provision possesses in each trusteeship agreement, by virtue of
Article 38, paragraph 1 fa), of the Statute.

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Furthermore, the Universal Declaration of Human Rights adopted
by the General Assembly in 1948, although not binding in itself, consti-
tutes evidence of the interpretation and application of the relevant
Charter provisions. The same may be said of the Draft Declaration on
Rights and Duties of States adopted by the International Law Commission
in 1949, the Draft Covenant on civil and political rights, the Draft
Covenant on Economic, Social and Cultural Rights, the Declaration
on the Elimination of all Forms of Racial Discrimination adopted by
the General Assembly of the United Nations on 20 November 1963 and
of regional treaties and declarations, particularly the European Con-
vention for the Protection of Human Rights and Fundamental Freedoms
signed on 3 September 1953, the Charter of the Organization of American
States signed on 30 April 1948, the American Declaration of the Rights
and Duties of Man, 1948, the Draft Declaration of International Rights
and Duties, 1945.

From what has been said above, we consider that the norm of non-
discrimination or non-separation on the basis of race has become a rule
of customary international law as is contended by the Applicants, and
as a result, the Respondent’s obligations as Mandatory are governed
by this legal norm in its capacity as a member of the United Nations
either directly or at least by way of interpretation of Article 2, para-
graph 2.

One of the contentions concerning the application of the said legal
norm is that, if such a legal norm exists for judging the Respondent’s
obligations under Article 2, paragraph 2, of the Mandate, it would be
the one in existence at the time the Mandate was entrusted to the Respon-
_ dent. This is evidently a question of inter-temporal law.

The Respondent’s position is that of denying the application of a new
law to a matter which arose under an old Jaw, namely the negation of
retroactivity of a new customary law. The Applicants’ argument is based
on “the relevance of the evolving practice and views of States, growth of
experience and increasing knowledge in political and social science to
the determination of obligations bearing on the nature and purpose of
the Mandate in general, and Article 2, paragraph 2”; briefly, it rests on
the assertion of the concept of the “continuous, dynamic and ascending
growth” of the obligation of the Mandatory.

Our view on this question is substantially not very different from that
of the Applicants. The reason why we recognize the retroactive appli-
cation of a new customary law to a matter which started more than
40 years ago is as follows.

The matter in question is in reality not that of an old law and a new
law, that is to say, it is not a question which arises out of an amendment
of a law and which should be decided on the basis of the principle of the
protection of droit acquis and therefore of non-retroactivity. In the present

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case, the protection of the acquired rights of the Respondent is not the
issue, but its obligations, because the main purposes of the mandate
system are ethical and humanitarian. The Respondent has no right to
behave in an inhuman way today as well as during these 40 years. There-
fore, the recognition of the generation of a new customary international
law on the matter of non-discrimination is not to be regarded as detri-
mental to the Mandatory, but as an authentic interpretation of the
already existing provisions of Article 2, paragraph 2, of the Mandate
and the Covenant. It is nothing other than a simple clarification of what
was not so clear 40 years ago. What ought to have been clear 40 years
ago has been revealed by the creation of a new customary law which
plays the role of authentic interpretation the effect of which is retro-
active.

Briefly, the method of the generation of customary international law
is in the stage of transformation from being an individualistic process
to being a collectivistic process. This phenomenon can be said to be the
adaptation of the traditional creative process of international law to
the reality of the growth of the organized international community. It
can be characterized, considered from the sociological viewpoint, as
a transition from traditional custom-making to international legislation
by treaty.

*
* *

Following the reference to Article 38, paragraph 1 (b), of the Statute,
the Applicants base their contention on the legal norm alternatively on
Article 38, paragraph 1 (c), of the Statute, namely “‘the general principles
of law recognized by civilized nations”.

Applicants refer to this source of international law both as an inde-
pendent ground for the justification of the norm of non-discrimination
and as a supplement and reinforcement of the other arguments advanced
by them to demonstrate their theory.

The question is whether the legal norm of non-discrimination or non-
separation denying the practice of apartheid can be recognized as a
principle enunciated in the said provision.

The wording of this provision is very broad and vague; the meaning
is not clear. Multiple interpretations ranging from the most strict to the
most liberal are possible.

To decide this question we must clarify the meaning of “general
principles of law”. To restrict the meaning to private law principles or
principles of procedural law seems from the viewpoint of literal inter-
pretation untenable. So far as the “general principles of law” are not
qualified, the “law’’ must be understood to embrace all branches of law,
including municipal law, public law, constitutional and administrative
law, private law, commercial law, substantive and procedural law, etc.

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Nevertheless, analogies drawn from these laws should not be made
mechanically, that is to say, to borrow the expression of Lord McNair,
“by means of importing private law institutions ‘lock, stock and barrel’
ready-made and fully equipped with a set of rules”. (C.J. Reports 1950,
p. 148.)

What international law can with advantage borrow from these sources
must be from the viewpoint of underlying or guiding “principles”.
These principles, therefore, must not be limited to statutory provisions
and institutions of national laws: they must be extended to the funda-
mental concepts of each branch of law as well as to law in general so
far as these can be considered as “recognized by civilized nations.”

Accordingly, the general principles of law in the sense of Article 38,
paragraph 1 (c), are not limited to certain basic principles of law such
as the limitation of State sovereignty, third-party judgment, limitation
of the right of self-defence, pacta sunt servanda, respect for acquired
rights, liability for unlawful harm to one’s neighbour, the principle of
good faith, etc. The word “general” may be understood to possess the
same meaning as in the case of the “general theory of Jaw’’, “théorie
générale de droit”, “die Allgemeine Rechtslehre”, namely common to all
branches of law. But the principles themselves are very extensive and
can be interpreted to include not only the general theory of law, but
the general theories of each branch of municipal law, so far as recognized
by civilized nations. They may be conceived, furthermore, as including
not only legal principles but the fundamental legal concepts of which
the legal norms are composed such as person, right, duty, property,
juristic act, contract, tort, succession, etc.

Tn short, they may include what can be considered as “juridical truth”
(Bin Cheng, General Principles of Law as Applied by International Courts
and Tribunals, 1953, p. 24).

The question is whether a legal norm of non-discrimination and non-
separation has come into existence in international society, as the Appli-
cants contend. It is beyond all doubt that the presence of laws against
racial discrimination and segregation in the municipal systems of virtually
every State can be established by comparative law studies. The recognition
of this norm by civilized nations can be ascertained. If the condition of
“general principles” is fulfilled, namely if we can say that the general
principles include the norm concerning the protection of human rights
by adopting the wide interpretation of the provision of Article 38,
paragraph 1 (c), the norm will find its place among the sources of
international law.

In this context we have to consider the relationship between a norm
of a human rights nature and international law. Originally, general
principles are considered to be certain private law principles found by

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the comparative law method and applicable by way of analogy to matters
of an international character. These principles are of a nature common
to all nations, that is of the character of jus gentium. These principles,
which originally belong to private law and have the character of jus
gentium, can be incorporated in international law so as to be applied to
matters of an international nature by way of analogy, as we see in the
case of the application of some rules of contract law to the interpretation
of treaties. In the case of the international protection of human rights,
on the contrary, what is involved is not the application by analogy of a
principle or a norm of private law to a matter of international character,
but the recognition of the juridical validity of a similar legal fact without
any distinction as between the municipal and the international legal
sphere.

In short, human rights which require protection are the same; they
are not the product of a particular juridical system in the hierarchy of the
legal order, but the same human rights must be recognized, respected and
protected everywhere man goes. The uniformity of national laws on the
protection of human rights is not derived, as in the cases of the law of
contracts and commercial and maritime transactions, from considerations
of expediency by the legislative organs or from the creative power of
the custom of a community, but it already exists in spite of its more-or-
less vague form. This is of nature jus naturale in roman law.

The unified national laws of the character of jus gentium and of the
law of human rights, which is of the character of jus naturale in roman
law, both constituting a part of the law of the world community which
may be designated as World Law, Common Law of Mankind (Jenks),
Transnational Law (Jessup), etc., at the same time constitute a part of
international law through the medium of Article 38, paragraph 1 (c).
But there is a difference between these two cases. In the former, the
general principles are presented as common elements among diverse
national laws; in the latter, only one and the same law exists and this
is valid through all kinds of human societies in relationships of hierarchy
and co-ordination.

This distinction between the two categories of law of an international
character is important in deciding the scope and extent of Article 38,
paragraph 1 (c). The Respondent contends that the suggested application
by the Applicants of a principle recognized by civilized nations is not a
correct analogy and application as contemplated by Article 38, paragraph
1 (c). The Respondent contends that the alleged norm of non-differentia-
tion as between individuals within a State on the basis of membership
of a race, class or group could not be transferred by way of analogy to
the international relationship, otherwise it would mean that all nations
are to be treated equally despite the difference of race, colour, etc.—a
conclusion which is absurd. (C.R. 65/47, p. 7.) If we limit the application
of Article 38, paragraph 1 (c), to a strict analogical extension of certain

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principles of municipal law, we must recognize that the contention of
the Respondent is well-founded. The said provision, however, does not
limit its application to cases of anology with municipal, or private law
which has certainly been a most important instance of the application
of this provision. We must include the international protection of human
tights in the application of this provision. It must not be regarded as a
case of analogy. In reality, there is only one human right which is valid
in the international sphere as well as in the domestic sphere.

The question here is not of an “‘international’’, that is to say, inter-
State nature, but it is concerned with the question of the international
validity of human rights, that is to say, the question whether a State is
obliged to protect human rights in the international sphere as it is
obliged in the domestic sphere.

The principle of the protection of human rights is derived from the
concept of man as a person and his relationship with society which
cannot be separated from universal human nature. The existence of
human rights does not depend on the will of a State; neither internally
on its law or any other legislative measure, nor internationally on treaty
or custom, in which the express or tacit will of a State constitutes the
essential element.

A State or States are not capable of creating human rights by law or
by convention; they can only confirm their existence and give them
protection. The role of the State is no more than declaratory. It is exactly
the same as the International Court of Justice ruling concerning the
Reservations to the Genocide Convention case U.C.J. Reports 1951,
p. 23):

“The solution of these problems must be found in the special
characteristics of the Genocide Convention ... The origins of the
Convention show that it was the intention of the United Nations
to condemn and punish genocide as ‘a crime under international
law’ involving a denial of the right of existence of entire human
groups, a denial which shocks the conscience of mankind and
results in great losses to humanity, and which is contrary to moral
law and to the spirit and aims of the United Nations (resolution 96
(1) of the General Assembly, December 11th, 1946). The first
consequence arising from this conception is that the principles
underlying the Convention are principles which are recognized
by civilized nations as binding on States, even without any conventional
obligation. A second consequence is the universal character both of
the condemnation of genocide and of the co-operation required ‘in
order to liberate mankind from such an odious scourge’ (Preamble
to the Convention).” (Italics added.)

Human rights have always existed with the human being. They existed
independently of, and before, the State. Alien and even stateless persons

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must not be deprived of them. Belonging to diverse kinds of communities
and societies—ranging from family, club, corporation, to State and
international community, the human rights of man must be protected
everywhere in this social hierarchy, just as copyright is protected domesti-
cally and internationally. There must be no legal vacuum in the protection
of human rights. Who can believe, as a reasonable man, that the existence
of human rights depends upon the internal or international legislative
measures, etc., of the State and that accordingly they can be validly
abolished or modified by the will of the State?

If a law exists independently of the will of the State and, accordingly,
cannot be abolished or modified even by its constitution, because it is
deeply rooted in the conscience of mankind and of any reasonable
man, it may be called “natural law” in contrast to “positive law”.

Provisions of the constitutions of some countries characterize funda-
mental human rights and freedoms as “inalienable’’, “‘sacred”’, “‘eternal’’,
“inviolate”, etc. Therefore, the guarantee of fundamental human rights

and freedoms possesses a super-constitutional significance.

If we can introduce in the international field a category of law, namely
jus cogens, recently examined by the International Law Commission,
a kind of imperative law which constitutes the contrast to the jus disposi-
tivum, capable of being changed by way of agreement between States,
surely the law concerning the protection of human rights may be con-
sidered to belong to the jus cogens.

As an interpretation of Article 38, paragraph 1 (c), we consider that
the concept of human rights and of their protection is included in the
general principles mentioned in that Article.

Such an interpretation would necessarily be open to the criticism of
falling into the error of natural law dogma. But it is undeniable that in
Article 38, paragraph 1 (c), some natural law elements are inherent.
It extends the concept of the source of international law beyond the limit
of legal positivism according to which, the States being bound only by
their own will, international law is nothing but the law of the consent
and auto-limitation of the State. But this viewpoint, we believe, was
clearly overruled by Article 38, paragraph 1 (c), by the fact that this
provision does not require the consent of States as a condition of the
recognition of the general principles. States which do not recognize this
principle or even deny its validity are nevertheless subject to its rule. From
this kind of source international law could have the foundation of its
validity extended beyond the will of States, that is to say, into the sphere
of natural law and assume an aspect of its supra-national and supra-
positive character.

The above-mentioned character of Article 38, paragraph 1 (c), of
the Statute is proved by the process of the drafting of this article by

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the Committee of Jurists. The original proposal made by Baron Des-
camps referred to “Ja conscience juridique des peuples civilisés”, a concept
which clearly indicated an idea originating in natural law. This proposal
met with the opposition of the positivist members of the Committee,
represented by Mr. Root. The final draft, namely Article 38, paragraph 1
(c), is the product of a compromise between two schools, naturalist
and positivist, and therefore the fact that the natural law idea became
incorporated therein is not difficult to discover (see particularly Jean
Spiropoulos, Die Allgemeine Rechtsgrundsätze im Vélkerrecht, 1928,
pp. 60 ff.; Bin Cheng, op. cit., pp. 24-26).

Furthermore, an important role which can be played by Article 38,
paragraph 1 (c), in filling in gaps in the positive sources in order to avoid
non liquet decisions, can only be derived from the natural law character
of this provision. Professor Brierly puts it, “its inclusion is important as
a rejection of the positivistic doctrine, according to which international
law consists solely of rules to which States have given their consent”
(J. L. Brierly, The Law of Nations, 6th ed., p. 63). Mr. Rosenne comments
on the general principles of law as follows:

“Having independent existence, their validity as legal no ms
does not derive from the consent of the parties as such ... The
Statute places this element on a footing of formal equality with
two positivist elements of custom and treaty, and thus is positivist
recognitions of the Grotian concept of the co-existence implying
no subjugation of positive law and so-called natural law of nations
in the Grotian sense.” (Shabtai Rosenne, The International Court
of Justice, 1965, Vol. II, p. 610.)

Now the question is whether the alleged norm of non-discrimination
and non-separation as a kind of protection of human rights can be con-
sidered as recognized by civilized nations and included in the general
principles of law.

First the recognition of a principle by civilized nations, as indicated
above, does not mean recognition by all civilized nations, nor does it
mean recognition by an official act such as a legislative act; therefo.e the
recognition is of a very elastic nature. The principle of equality before the
law, however, is stipulated in the list of human rights recognized by the
municipal system of virtually every State no matter whether the form of
government be republican or monarchical and in spite of any differences
in the degree of precision of the relevant provisions. This principle has
become an integral part of the constitutions of most of the civilized
countries in the world. Common-law countries must be included. (Ac-
cording to Constitutions of Nations, 2nd ed., by Amos J. Peaslee, 1956,
Vol. I, p. 7, about 73 per cent. of the national constitutions contain
clauses respecting equality.)

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The manifestation of the recognition of this principle does not need
to be limited to the act of legislation as indicated above; it may include
the attitude of delegations of member States in cases of participation in
resolutions, declarations, etc., against racial discrimination adopted by the
organs of the League of Nations, the United Nations and other organi-
zations which, as we have seen above, constitute an important element
in the generation of customary international law.

From what we have seen above, the alleged norm of non-discrimination
and non-separation, being based on the United Nations Charter, par-
ticularly Articles 55 (c), 56, and on numerous resolutions and decla-
rations of the General Assembly and other organs of the United Nations,
and owing to its nature as a general principle, can be regarded as a
source of international law according to the provisions of Article 38,
paragraph 1 (a)-(c). In this case three kinds of sources are cumulatively
functioning to defend the above-mentioned norm: (1) international
convention, (2) international custom and (3) the general principles of law.

Practically the justification of any one of these is enough, but theo-
retically there may be a difference in the degree of importance among
the three. From a positivistic, voluntaristic viewpoint, first the convention,
and next the custom, is considered important, and general principles
occupy merely a supplementary position. On the contrary, if we take the
supra-national objective viewpoint, the general principles would come
first and the two others would follow them. If we accept the fact that
convention and custom are generally the manifestation and concreti-
zation of already existing general principles, we are inclined to attribute
to this third source of international law the primary position vis-a-vis
the other two.

To sum up, the principle of the protection of human rights has received
recognition as a legal norm under three main sources of international
law, namely (1) international conventions, (2) international custom and
(3) the general principles of law. Now, the principle of equality before
the law or equal protection by the law presents itself as a kind of human
tights norm. Therefore, what has been said on human rights in general
can be applied to the principle of equality. (Cf. Wilfred Jenks, The
Common Law of Mankind, 1958, p. 121. The author recognizes the
principle of respect for human rights including equality before the law
as a general principle of law.)

Here we must consider the principle of equality in relationship to
the Mandate. The contention of the Applicants is based on this principle
as condemning the practice of apartheid. The Applicants contend not
only that this practice is in violation of the obligations of the Respondent
imposed upon it by Article 2 of the Mandate and Article 22 of the Cove-
nant (Submission No. 3), but that the Respondent, by virtue of economic,

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political, social and educational policies has, in the light of applicable
international standards or international legal norms, or both, failed
to promote to the utmost the material and moral well-being and social
progress of the inhabitants of the Territory, What the Applicants seek
to establish seems to be that the Respondent’s practice of apartheid
constitutes a violation of international standards and/or an international
legal norm, namely the principle of equality and, as a result, a violation
of the obligations to promote to the utmost, etc. If the violation of this
principle exists, this will be necessarily followed by failure to promote
the well-being, etc. The question is whether the principle of equality is
applicable to the relationships of the Mandate or not. The Respondent
denies that the Mandate includes in its content the principle of equality
as to race, colour, etc.

Regarding this point, we would refer to our above-mentioned view
concerning the Respondent’s contention that the alleged norm of non-
discrimination of the Charter does not constitute a part of the mandate.
agreement, and therefore the question of this norm falls outside the
dispute under Article 7, paragraph 2, of the Mandate.

We consider that the principle of equality, although it is not expressly
mentioned in the mandate instrument constitutes, by its nature, an integral
part of the mandates system and therefore is embodied in the Mandate.
From the natural-law character of this principle its inclusion in the Man-
date must be justified.

It appears to be a paradox that the inhabitants of the mandated
territories are internationally more protected than citizens of States
by the application of Article 7, paragraph 2, but this interpretation falls
outside the scope of the present proceedings.

Next, we shall consider the content of the principle of equality which
must be applied to the question of apartheid.

IV

As we have seen above, the objectives of the mandates system, being
the material and moral well-being and social progress of the inhabitants
of the territory, are in themselves of a political nature. Their achievement
must be measured by the criteria of politics and the method of their
realization belongs to the matter of the discretion conferred upon the
Mandatory by Article 2, paragraph 1, of the Mandate, and Article 22
of the Covenant of the League.

The discretionary power of the Mandatory however, is not unlimited.
Besides the general rules which prohibit the Mandatory from abusing
its power and mala fides in performing its obligations, and besides the
individual provisions of the Mandate and the Covenant, the Mandatory
is subject to the Charter of the United Nations as a member State, the
customary international law, general principles of law, and other sources

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of international law enunciated in Article 38, paragraph 1. According
to the contention of the Applicants, the norm and/or standards which
prohibit the practice of apartheid, are either immediately or by way
of interpretation of the Mandate binding upon the discretionary power
of the Mandatory. The Respondent denies the existence of such norm
and/or standards.

The divergence of views between the Parties is summarized in the
following formula: whether or not the policy of racial discrimination
or separate development is per se incompatible with the well-being and
social progress of the inhabitants, or in other terms, whether the policy
of apartheid is illegal and constitutes a breach of the Mandate, or depends
upon the motive (bona fides or mala fides), the result or effect. From the
Respondent’s standpoint apartheid is not per se prohibited but only a
special kind of discrimination which leads to oppression is prohibited.

This divergence of fundamental standpoints between the Parties is
reflected in their attitudes as to what extent their contentions depend
on the evidence. Contrary to the Applicants’ attitude in denying the
necessity of calling witnesses and experts and of an inspection in loco,
the Respondent abundantly utilized numerous witnesses and experts
and requested the Court to visit South West Africa, South Africa and
other parts of Africa to make an inspection in loco.

First, we shall examine the content of the norm and standards of which
violation by the Respondent is alleged by the Applicants.

The Applicants contend, as set forth in the Memorials (p. 108) that
the Respondent’s violation of its obligations under the said paragraph 2
‘of Article 2 of the Mandate consists in a “‘systematic course of positive
action which inhibits the well-being, prevents the social progress and
thwarts the development of the overwhelming majority” of the inhabitants
of the Territory. In pursuit of such course of action, and as a pervasive
feature thereof, the Respondent has, by governmental action, installed
and maintained the policy of apartheid, or separate development. What
is meant by apartheid is as follows:

“Under apartheid, the status, rights, duties, opportunities and
burdens of the population are determined and allotted arbitrarily
on the basis of race, color and tribe, in a pattern which ignores the
needs and capacities of the groups and individuals affected, and
subordinates the interests and rights of the great majority of the
people to the preferences of a minority.”” (Memorials, p. 108.)

Such policy, the Applicants contend, “runs counter to modern con-
ceptions of human rights, dignities and freedom, irrespective of race,
colour or creed”, which conclusion is denied by the Respondent.

The alleged legal norms of non-discrimination or non-separation by
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which, by way of interpretation of Article 2, paragraph 2, of the Mandate,
apartheid becomes illegal, are defined by the Applicants as follows:

“In the following analysis of the relevant legal norms, the terms
‘non-discrimination’ or ‘non-separation’ are used in their prevalent
and customary sense: stated negatively, the terms refer to the ab-
sence of governmental policies or actions which allot status, rights,
duties, privileges or burdens on the basis of membership in a group,
class or race rather than on the basis of individual merit, capacity
or potential: stated affirmatively, the terms refer to governmental
policies and actions the objective of which is to protect equality
of opportunity and equal protection of the laws to individual
persons as such.” (Reply, p. 274.)

What the Applicants want to establish, are the legal norms of “non-
discrimination” or “non-separation” which are of a per se, non-qualified
absolute nature, namely that the decision of observance or otherwise
of the norm does not depend upon the motive, result, effect, etc. Therefore
from the standpoint of the Applicants, the violation of the norm of
non-discrimination is established if there exists a simple fact of discrimi-
nation without regard to the intent of oppression on the part of the
Mandatory.

On the other hand, the Respondent does not recognize the existence
of the norm of non-discrimination of an absolute character and seeks
to prove the necessity of group differentiation in the administration of
a multi-racial, multi-national, or multi-lingual community. The pleadings
and verbatim records are extremely rich in examples of different treat-
ment of diverse population groups in multi-cultural societies in the world.
Many examples of different treatment quoted by the Respondent and
testified to by the witnesses and experts appear to belong to the system of
protection of minority groups in multi-cultural communities and cover
not only the field of public law but also of private law.

The doctrine of different treatment of diverse population groups
constitutes a fundamental political principle by which the Respondent
administers not only the Republic of South Africa, but the neighbouring
Territory of South West Africa. The geographical, historical, ethnologi-
cal, economic and cultural differences and varieties between several
population groups, according to the contention of the Respondent,

_have necessitated the adoption of the policy of apartheid or “separate
development”. This policy is said to be required for the purpose of
the promotion of the well-being and social progress of the inhabitants
of the Territory. The Respondent insists that each population group
developing its own characteristics and individuality, to attain self-
determination, separate development should be the best way to realize
the well-being and social progress of the inhabitants. The other alter-
native, namely the mixed integral society in the sense of Western

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democracy would necessarily lead to competition, friction, struggle,
chaos, bloodshed, and dictatorship as examples may be found in some
other African countries. Therefore, the most appropriate method of
administration of the Territory is the principle of indirect rule main-
taining and utilizing the merits of tribalism.

Briefly, it seems that the idea underlying the policy of apartheid
or separate development is the racial philosophy which is not entirely
identical with ideological Nazism but attributes great importance to
the racial or ethnological factors in the fields of politics, law, economy
and culture. Next, the method of apartheid is of sociological and,
therefore, strong deterministic tendency, as we can guess from the
fact that at the oral proceedings the standpoint of the Respondent
was energetically sustained by many witnesses—experts who were
sociologists and ethnologists.

Contrary to the standpoint of the Applicants who condemn the
policy of apartheid or separate development of the Respondent as
illegal, the latter conceives this policy as something neutral. The Re-
spondent says that it can be utilized as a tool to attain a particular
end, good or bad, as a knife can serve a surgeon as well as a murderer.

*
* *

Before we decide this question, general consideration of the content
of the principle of equality before the law is required. Although the
existence of this principle is universally recognized as we have seen
above, its precise content is not very clear.

This principle has been recognized as one of the fundamental prin-
ciples of modern democracy and government based on the rule of law.
Judge Lauterpacht puts it:

“The claim to equality before the law is in a substantial sense
the most fundamental of the rights of man. It occupies the first
place in most written constitutions. It is the starting point of all
other liberties.” (Sir Hersch Lauterpacht, An International Bill of
the Rights of Man, 1945, p. 115.)

Historically, this principle was derived from the Christian idea of the
equality of all men before God. All mankind are children of God, and,
consequently, brothers and sisters, notwithstanding their natural and
social differences, namely man and woman, husband and wife, master
and slave, etc. The idea of equality of man is derived from the fact
that human beings “by the common possession of reason” distinguish
themselves “from other living beings”. (Lauterpacht, op. cit., p. 116.)
This idea existed already in the Stoic philosophy, and was developed
by the scholastic philosophers and treated by natural law scholars and
encyclopedists of the seventeenth and eighteenth centuries. It received

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legislative formulation however, at the end of the eighteenth century
first by the Bills of Rights of some American states, next by the Decla-
ration of the French Revolution, and then in the course of the nine-
teenth century the equality clause, as we have seen above, became one
of the common elements of the constitutions of modern European and
other countries.

Examining the principle of equality before the law, we consider
that it is philosophically related to the concepts of freedom and justice.
The freedom of individual persons, being one of the fundamental ideas
of {aw, is not unlimited and must be restricted by the principle of equality
allotting to each individual a sphere of freedom which is due to him. In
other words the freedom can exist only under the premise of the equality
principle.

In what way is each individual allotted his sphere of freedom by
the principle of equality? What is the content of this principle? The
principle is that what is equal is to be treated equally and what is different
is to be treated differently, namely proportionately to the factual dif-
ference. This is what was indicated by Aristotle as justitia commutativa
and justitia distributiva.

The most fundamental point in the equality principle is that all human
beings as persons have an equal value in themselves, that they are the
aim itself and not means for others, and that, therefore, slavery is denied.
The idea of equality of men as persons and equal treatment as such is
of a metaphysical nature. It underlies all modern, democratic and
humanitarian law systems as a principle of natural law. This idea,
however, does not exclude the different treatment of persons from the
consideration of the differences of factual circumstances such as sex,
age, language, religion, economic condition, education, etc. To treat
different matters equally in a mechanical way would be as unjust as to
treat equal matters differently.

We know that law serves the concrete requirements of individual
human beings and societies. If individuals differ one from another and
societies also, their needs will be different, and accordingly, the content
of law may not be identical. Hence is derived the relativity of law to
individual circumstances.

The historical development of law tells us that, parallel to the trend
of generalization the tendency of individualization or differentiation is
remarkable as may be exemplified by the appearance of a system of
commercial law separate from the general private law in civil law coun-
tries, creation of labour law. The acquisition of independent status by
commercial and labour law can be conceived as the conferment of a
kind of privilege or special treatment to a merchant or labour class. In
the field of criminal law the recent tendency of criminal legislative polic
is directed towards the individualization of the penalty.

We can say accordingly that the principle of equality before the law
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does not mean the absolute equality, namely equal treatment of men
without regard to individual, concrete circumstances, but it means the rel-
ative equality, namely the principle to treat equally what are equal and
unequally what are unequal.

The question is, in what case equal treatment or different treatment
should exist. If we attach importance to the fact that no man is strictly
equal to another and he may have some particularities, the principle of
equal treatment could be easily evaded by referring to any factual and
legal differences and the existence of this principle would be virtually
denied. A different treatment comes into question only when and to the
extent that it corresponds to the nature of the difference. To treat unequal
matters differently according to their inequality is not only permitted but
required. The issue is whether the difference exists. Accordingly, not
every different treatment can be justified by the existence of differences,
but only such as corresponds to the differences themselves, namely that
which is called for by the idea of justice—“the principle to treat equal
equally and unequal according to its inequality, constitutes an essential
content of the idea of justice’ (Goetz Hueck, Der Grundsatz der Gleich-
miassigen Behandlung in Privatrecht, 1958, p. 106) [translation].

Briefly, a different treatment is permitted when it can be justified by the
criterion of justice. One may replace justice by the concept of reason-
ableness generally referred to by the Anglo-American school of law.

Justice or reasonableness as a criterion for the different treatment
logically excludes arbitrariness. The arbitrariness which is prohibited,
means the purely objective fact and not the subjective condition of those
concerned. Accordingly, the arbitrariness can be asserted without
regard to his motive or purpose.

There is no doubt that the principle of equality is binding upon ad-
ministrative organs. The discretionary power exercised on considerations
of expediency by the administrative organs is restricted by the norm of
equality and the infringement of this norm makes an administrative
measure illegal. The judicial power also is subjected to this principle.
Then, what about the legislative power? Under the constitutions which
express this principle in a form such as “all citizens are equal before the
law”, there may be doubt whether or not the legislators also are bound
by the principle of equality. From the nature of this principle the answer
must be in the affirmative. The legislators cannot be permitted to exercise
their power arbitrarily and unreasonably. They are bound not only in
exercising the ordinary legislative power but also the power to establish
the constitution. The reason therefor is that the principle of equality
being in the nature of natural law and therefore of a supra-constitutional
character, is placed at the summit of hierarchy of the system of law, and
that all positive laws including the constitution shall be in conformity
with this principle.

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The Respondent for the purpose of justifying its policy of apartheid
or separate development quotes many examples of different treatment
such as minorities treaties, public conveniences (between man and
woman), etc. Nobody would object to the different treatment in these cases
as a violation of the norm of non-discrimination or non-separation on
the hypothesis that such a norm exists. The Applicants contend for the
unqualified application of the norm of non-discrimination or non-
separation, but even from their point of view it would be impossible to
assert that the above-mentioned cases of different treatment constitute
a violation of the norm of non-discrimination.

Then, what is the criterion to distinguish a permissible discrimination
from an impermissible one?

In the case of the minorities treaties the norm of non-discrimination
as a reverse side of the notion of equality before the law prohibits a
State to exclude members of a minority group from participating in
tights, interests and opportunities which a majority population group can
enjoy. On the other hand, a minority group shall be guaranteed the
exercise of their own religious and education activities. This guarantee
is conferred on members of a minority group, for the purpose of protec-
tion of their interests and not from the motive of discrimination itself.
By reason of protection of the minority this protection cannot be imposed
upon members of minority groups, and consequently they have the
choice to accept it or not.

In any event, in case of a minority, members belonging to this group,
enjoying the citizenship on equal terms with members of majority groups,
have conferred on them the possibility of cultivating their own religious,
educational or linguistic values as a recognition of their fundamental
human rights and freedoms.

The spirit of the minorities treaties, therefore, is not negative and
prohibitive, but positive and permissive.

Whether the spirit of the policy of apartheid or separate development is
common with that of minorities treaties to which the Respondent re-
peatedly refers, whether the different treatment between man and
woman concerning the public conveniences can be referred to for the
purpose of justifying the policy of apartheid or not, that is the question.

In the case of apartheid, we cannot deny the existence of reason-
ableness in some matters that diverse ethnic groups should be treated in
certain aspects differently from one another. As we have seen above,
differentiation inlaw and politics is one of the most remarkable tendencies
of the modern political society. This tendency is in itself derived from the
concept of justice, therefore it cannot be judged as wrong. It is an adapta-
tion of the idea of justice to social realities which, as its structure, is
going to be more complicated and multiplicate from the viewpoint of
economic, occupational, cultural and other elements.

Therefore, different treatment requires reasonableness to justify it as
is stated above. The reason may be the protection of some fundamental
human rights and freedoms as we have seen in the case of minorities

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treaties, or of some other nature such as incapacity of minors to conclude
contracts, physical differences between man and woman.

In the case of the protection of minorities, what is protected is not the
religious or linguistic group as a whole but the individuals belonging to
this group, the former being nothing but a name and not a group. In the
case of different treatment of minors or between man and woman, it is
clear that minors, disabled persons or men or women in a country do not
constitute respectively a group. But whether a racial or ethnic group can
be treated in the same way as categories such as minors, disabled persons,
men and women, is doubtful. Our conclusion on this point is negative.
The reasons therefor are that the scientific and clear-cut definition of race
is not established; that what man considers as a matter of common-sense
as criteria to distinguish one race from the other, are the appearance,
particularly physical characteristics such as colour, hair, etc., which do
not constitute in themselves relevant factors as the basis for different
political or legal treatment; and that, if there exists the necessity to treat
one race differently from another, this necessity is not derived from the
physical characteristics or other racial qualifications but other factors,
namely religious, linguistic, educational, social, etc., which in themselves
are not related to race or colour.

Briefly, in these cases it is possible that the different treatment in
certain aspects is reasonably required by the differences of religion,
language, education, custom, etc., not by reason of race or colour.
Therefore, the Respondent tries in some cases to justify the different treat-
ment of population groups by the concept of cultural population groups.
The different treatment would be justified if there really existed the need
for it by reason of cultural differences. The different treatment, however,
should be condemned if cultural reasons are referred to for the purpose
of dissimulating the underlying racial intention.

In any case, as we have seen above, all human beings are equal
before the law and have equal opportunities without regard to religion,
race, language, sex, social groups, etc. As persons they have the dignity
to be treated as such. This is the principle of equality which constitutes
one of the fundamental human rights and freedoms which are universal
to all mankind. On the other hand, human beings, being endowed
with individuality, living in different surroundings and circumstances
are not all alike, and they need in some aspects politically, legally and
socially different treatment. Hence the above-mentioned examples of
different treatment are derived. Equal treatment is a principle but its
mechanical application ignoring all concrete factors engenders injustice.
Accordingly, it requires different treatment, taken into consideration,
of concrete circumstances of individual cases. The different treatment is
permissible and required by the considerations of justice; it does not
mean a disregard of justice.

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Equality being a principle and different treatment an exception, those
who refer to the different treatment must prove its raison d’étre and its
reasonableness.

The Applicants’ norm of non-discrimination or non-separation, being
conceived as of a per se nature, would appear not to permit any exception.
The policy of apartheid or separate development which allots status,
rights, duties, privileges or burdens on the basis of membership in a
group, class or race rather than on the basis of individual merit, capacity
or potential is illegal whether the motive be bona fide or mala fide,
oppressive or benevolent; whether its effect or result be good or bad
for the inhabitants. From this viewpoint all protective measures taken
in the case of minorities treaties and other matters would be included
in the illegal discrimination—a conclusion which might not be expected
from the Applicants. These measures, according to the Applicants,
would have nothing to do with the question of discrimination. The
protection the minorities treaties intended to afford to the inhabitants
is concerned with life, liberty and free exercise of religion. On the con-
trary, the Respondent argues the existence of the same reason in the
policy of apartheid—the reason of protective measures in the case of
minorities treaties.

We must recognize, on the one hand, the legality of different treatment
so far as justice or reasonableness exists in it. On the other hand, we
cannot recognize all measures of different treatment as legal, which
have been and will be performed in the name of apartheid or separate
development. The Respondent tries to prove by the pleadings and the
testimony of the witnesses and experts the existence of a trend of differen-
tiation in accordance with different religious, racial, linguistic groups.
From the viewpoint of the Applicants, the abundant examples quoted
by the Respondent and the testimony of witnesses and experts cannot
serve as the justification of the policy of apartheid, because they belong
to an entirely different plane from that of apartheid and because they
are of a nature quite heterogeneous to the policy of apartheid, which is
based on a particular racial philosophy and group sociology.

The important question is whether there exists, from the point of
view of the requirements of justice, any necessity for establishing an
exception to the principle of equality, and the Respondent must prove
this necessity, namely the reasonableness of different treatment.

On the aspect of “reasonableness” two considerations arise. The
one is the consideration whether or not the individual necessity exists
to establish an exception to the general principle of equality before
the law and equal opportunity. In this sense the necessity may be con-
ceived as of the same nature as in the case of minorities treaties of which

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the objectives are protective and beneficial. The other is the consideration
whether the different treatment does or does not harm the sense of
dignity of individual persons.

For instance, if we consider education, on which the Parties argued
extensively, we cannot deny the value of vernacular as the medium
of instruction and the result thereof would be separate schooling as
between children of diverse population groups, particularly between
the Whites and the Natives. In this case separate education and schooling
may be recognized as reasonable. This is justified by the nature of the
matter in question. But even in such a case, by reason of the matter
which is related to a delicate racial and ethnic problem, the manner
of dealing with this matter should be extremely careful. But, so far as
the public use of such facilities as hotels, buses, etc., justification of
discriminatory and separate treatment by racial groups cannot be
found in the same way as separation between smokers and non-smokers
in a train.

We cannot condemn all measures derived from the Respondent’s
policy of apartheid or separate development, particularly as proposed
by the Odendaal Commission, on the ground that they are motivated
by the racial concept, and therefore devoid of the reasonableness.
There may be some measures which are of the same character as we
see in the protection measures in the case of the minorities treaties and
others. We cannot approve, however, all measures constituting a kind of
different treatment of apartheid policy as reasonable.

One of the characteristics of the policy of apartheid is marked by its
restrictive tendency on the basis of racial distinction. The policy includes
on the one hand protective measures for the benefit of the Natives as we
see in the institutions of reserves and homelands connected with restric-
tions on land rights; however, on the other hand, several kinds of
restrictions of rights and freedoms are alleged to exist regarding those
Natives who live and work in the southern sector, namely the White
area outside the reserves. These restrictions, if they exist, in many cases
presenting themselves as violation of respective human rights and free-
doms at the same time, would constitute violation of the principle of
equality before the law (particularly concerning the discrimination
between the Natives and the Whites).

*
* *

Here we are not required to give answers exhaustively in respect of
the Applicants’ allegations of violation by the Respondent of the
Mandate concerning the legislation (largo sensu) applicable in the
Territory. The items enumerated by the Applicants in the Memorials
(pp. 118-166) are not included in their submissions. We are not obliged
to pronounce our views thereon. By way of illustration we shall examine

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a few points. What is required from us is a decision on the question of
whether the Respondent’s policy of apartheid constitutes a violation of
Article 2, paragraph 2, of the Mandate or not.

For the purpose of illustration we shall consider freedom of choice
of occupations (cf. Memorials, pp. 121, 122 and 136).

In the field of civil service, participation by “Natives” in the general
administration appears, in practice, to be confined to the lowest and
least-skilled categories, such as messengers and cleaners. This practice
of “‘job-reservation” for Natives is exemplified by allusion to the terri-
torial budget, which classifies jobs as between “European” and ‘“‘Natives”’.

In the mining industry the Natives are excluded from certain occupa-
tions, such as those of prospector for precious and base minerals, dealer
in unwrought precious metals, manager, assistant manager, sectional
or underground manager, etc., in mines owned by persons of “European”
descent, officer in the Police Force. Concerning these occupations,
“ceilings” are put on the promotion of the Natives. The role of the
“Native” is confined to that of unskilled labourer.

In the fishing industry, the enterprises are essentially “European”
owned and operated. The role of the “Native” is substantially confined
to unskilled labour (Memorials, p. 119).

As regards railways and harbours, all graded posts in the Railway
and Harbours Administration are reserved to ““Europeans’’, subject to
temporary exceptions. The official policy appears to be that “non-
Europeans” should not be allowed to occupy graded posts.

The question is whether these restrictions are reasonable or not,
whether there is a necessity to establish exceptions to the general appli-
cation of the principle of equality or non-discrimination or not.

The matter of “ceilings” was dealt with minutely and at length in
the oral proceedings by the Parties. The Respondent’s defence against
-the condemnation of arbitrariness, injustice and unreasonableness on
the part of the Applicants may be summarized in two points: the one
is the reason of social security and the other is the principle of balance

_Or reciprocity.

The Respondent contends that the Whites in general do not desire
to serve under the authority of the Natives in the hierarchy of industrial
or bureaucratic systems. If this fact be ignored and the Natives occupy
leading positions in which they would be able to supervise Whites
friction between the two groups necessarily would occur and the social
peace would be disturbed. This argument of the Respondent seems to
be based on a pessimistic view of the possibility of harmonious coexistence
of diverse racial and ethnic elements in an integrated society.

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312 SOUTH WEST AFRICA (DISS. OP. TANAKA)

It is not deniable that there may exist certain causes of friction, con-
flict and animosity between diverse racial and ethnic groups which
produce obstacles to their coexistence and co-operation in a friendly
political community. We may recognize this as one aspect of reality
of human nature and social life. It is, however, no less true that man-
kind aspires and strives towards the ideal of the achievement of a
harmonious society composed of racially heterogeneous elements over-
coming difficulties which may result from the primitive instinctive
sentiment of racial prejudice and antagonism. Such sentiment must be
overcome and not approved. In modern, democratic societies we have
to expect this result mainly from the progress of humanitarian educa-
tion. But the mission of politics and law cannot be said to be less im-
portant in minimizing racial prejudice and antagonism and avoiding
collapse and tragedy. The State is obliged to educate the people by
means of legislative and administrative measures for the same purpose.

To take into consideration the psychological effect upon the Whites
who would be subjected to the supervision of the Natives if a ceiling
did not exist, that is nothing else but the justification or official recog-
nition of racial prejudice or sentiment of racial superiority on the part
of the White population which does harm to the dignity of man.

Furthermore, individuals who could have advanced by their personal
merits if there existed no ceiling are unduly deprived of their opportunity
for promotion.

It is contended by the Respondent that those who are excluded from
the jobs proportionate to their capacity and ability in the White areas,
can find the same jobs in their own homelands where no restriction
exists in regard to them. But even if they can find jobs in their home-
lands the conditions may not be substantially the same and, accordingly,
in most cases, they may not be inclined to go back to the northern
sector, their homelands, and they cannot be forced to do so.

The Respondent probably being aware of the unreasonableness in
such hard cases, tries to explain it as a necessary sacrifice which should
be paid by individuals for the maintenance of social security. But it
is unjust to require a sacrifice for the sake of social security when this
sacrifice is of such importance as humiliation of the dignity of the
personality.

The establishment of ceilings in regard to certain jobs violates human
rights of the Natives in two respects: one is violation of the principle
of equality before the law and equal opportunity; the other is violation
of the right of free choice of employment.

The Respondent furthermore advocates the establishment of ceilings
by the principle of reciprocity or balance between two legal situations,
namely one existing in the White areas where certain rights and free-
doms of the Natives are restricted and the other situation existing in the
Native areas where the corresponding rights and freedoms of the Whites

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are restricted. The Respondent seeks to prove by this logic that in such
circumstances the principle of equality of the Whites and the Natives
is observed. Unequal treatment unfavourable to one population group
in area A, however, cannot be justified by similar ‘treatment of the other
population group in area B. Each unequal treatment constitutes an
independent illegal conduct; the one cannot be counter-balanced by the
other, as set-off is not permitted between two obligations resulting from
illegal acts.

Besides, from the viewpoint of group interest, those of the Natives
living in the White area outside the reserves are, owing to the number
of the Native population, far bigger than those of the Whites living
in the Native areas, the idea of counter-balance is quantitatively unjust.

It is also maintained, in respect of the restrictive policy as regards
study to become an engineer by a non-White person, that the under-
lying purpose of this policy is to prevent the frustration on the part
of the individual which he might experience when he could not find
White assistants willing to serve under him. The sentiment of frustra-
tion on the part of non-White individuals, however, should not be
rightly referred to as a reason for establishing a restriction on the educa-
tional opportunity of non-Whites, firstly because the question is that
the frustration is caused by the racial prejudice on the part of the
Whites which in itself must be eliminated and secondly because a more
important matter is to open to the non-Whites the future possibility
of social promotion. Therefore, the reason of the frustration of non-
Whites cannot be justified.

+
* *

Finally, we wish to make the following conclusive and supplementary
remarks on the matter of the Applicants’ Submissions Nos. 3 and 4.

1. The principle of equality before the law requires that what are
equal are to be treated equally and what are different are to be treated
differently. The question arises: what is equal and what is different.

2. All human beings, notwithstanding the differences in their ap-
pearance and other minor points, are equal in their dignity as persons.

Accordingly, from the point of view of human rights and fundamental
freedoms, they must be treated equaily.

3. The principle of equality does not mean absolute equality, but
recognizes relative equality, namely different treatment proportionate
to concrete individual circumstances. Different treatment must not be
given arbitrarily; it requires reasonableness, or must be in conformity
with justice, as in the treatment of minorities, different treatment of the
sexes regarding public conveniences, etc. In these cases, the differentiation
is aimed at the protection of those concerned, and it is not detrimental
and therefore not against their will. |

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4, Discrimination according to the criterion of “race, colour, national
or tribal origin” in establishing the rights and duties of the inhabitants
of the territory is not considered reasonable and just. Race, colour,
etc., do not constitute in themselves factors which can influence the
rights and duties of the inhabitants as in the case of sex, age, language,
religion, etc. If differentiation be required, it would be derived from the
difference of language, religion, custom, etc., not from the racial differ-
ence itself. In the policy of apartheid the necessary logical and material
link between difference itself and different treatment, which can justify
such treatment in the case of sex, minorities, etc., does not exist.

We cannot imagine in what case the distinction between Natives and
Whites, namely racial distinction apart from linguistic, cultural or other
differences, may necessarily have an influence on the establishment of
the rights and duties of the inhabitants of the territory.

5. Consequently, the practice of apartheid is fundamentally unreason-
able and unjust. The unreasonabieness and injustice do not depend
upon the intention or motive of the Mandatory, namely its mala fides.
Distinction on a racial basis is in itself contrary to the principle of
equality which is of the character of natural law, and accordingly illegal.

The above-mentioned contention of the Respondent that the policy
of apartheid has a neutral character, as a tool to attain a particular end,
is not right. If the policy of apartheid is a means, the axiom that the end
cannot justify the means can be applied to this policy.

6. As to the alleged violation by the Respondent of the obligations
incumbent upon it under Article 2, paragraph 2, of the Mandate, the
policy of apartheid, including in itself elements not consistent with the
principle of equality before the law, constitutes a violation of the said
Article, because the observance of the principle of equality before the
law must be considered as a necessary condition of the promotion of
the material and moral well-being and the social progress of the inhabi-
tants of the territory.

7. As indicated above, so far as the interpretation of Article 2,
paragraph 2, of the Mandate is concerned, only questions of a legal
nature belong to the matter upon which the Court is competent. Diverse
activities which the Respondent as Mandatory carries out as a matter
of discretion, to achieve the promotion of the material and moral well-
being and the social progress of the inhabitants, fall outside the scope
of judicial examination as matters of a political and administrative
nature.

Accordingly, questions of whether the ultimate goal of the mandates
system should be independence or annexation, and in the first alternative
whether a unitary or federal system in regard to the local administration
is preferable, whether or in what degree the principle of indirect rule or

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respect for tribal custom may or must be introduced—such questions,
which have been very extensively argued in the written proceedings as
well as in the oral proceedings, have, despite their substantial.connection
with the policy of apartheid, no relevance to a decision on the question
of apartheid, from the legal viewpoint.

These questions are of a purely political or administrative character,
the study and examination of which might have belonged or may belong
to competent organs of the League or the United Nations.

8. The Court cannot examine and pronounce the legality or ille-
gality of the policy of apartheid as a whole; it can decide that there exist
some elements in the apartheid policy which are not in confor-
mity with the principle of equality before the law or interna-
tional standard or international norm of non-discrimination and non-
separation. The Court can declare if it is requested to examine the
laws, proclamations, ordinances and other governmental measures
enacted to implement the policy of apartheid in the light of the principle
of equality. For the purpose of the present cases, the foregoing con-
sideration of a few points as illustrations may be sufficient to establish
the Respondent’s violation of the principle of equality, and accordingly
its obligations incumbent upon it by Article 2, paragraph 2, of the
Mandate and Article 22 of the Covenant.

9. Measures complained of by the Applicants appear in themselves
to be violations of some of the human rights and fundamental freedoms
such as rights concerning the security of the person, rights of residence,
freedom of movement, etc., but such measures, being applied to the
“Natives” only and the “Whites” being excluded therefrom, these
violations, if they exist, may constitute, at the same time, violations of
the principle of equality and non-discrimination also.

In short, we interpret the Applicants’ Submissions Nos. 3 and 4 in
such a way that their complaints include the violation by the Respondent
of two kinds of human rights, namely individual human rights and rights
to equal protection of the law. There is no doubt that the Respondent as
Mandatory is obliged to protect all human rights and fundamental
freedoms including rights to equal protection of the law as a necessary
prerequisite of the material and moral well-being and the social progress
of the inhabitants of the Territory. By this reason, what has been ex-
plained above about the principle of equality in connection with Article
38, paragraph 1 (c}, is applicable to human rights and fundamental
freedoms in general.

10. From the procedural viewpoint, two matters must be considered.
The one is concerned with the effect of the Applicants’ amendment of
the Submissions Nos. 3 and 4 (Memorials, 15 April 1961, pp. 197-199)
by the submissions of 19 May 1965 (C.R. 65/35). Since the amendment
of the submissions is allowed until the stage of oral proceedings, and
the amendment was made within the scope of the claim set forth in the
Applications, there is no reason to deny its effectiveness. Furthermore,

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we wish to mention that the Respondent raised no objection during the
course of the oral proceedings regarding the amendment.

The other is concerned with the question of choice by the Court of the
reasons underlying its decisions.

Concerning this question, we consider that, although the Court is
bound by the submissions of the Parties, it is entirely free to choose the
reasons for its decisions. The Parties may present and develop their own
argument as to the interpretation of the provisions of the Mandate, the
Covenant, the Charter, etc., but the Court, so far as legal questions are
concerned, quite unfettered by what has been put forward by the Parties,
can exercise its power of interpretation in approving or rejecting the
submissions of the Parties.

For the foregoing reasons, the Applicants’ Submissions Nos. 3 and 4
are well-founded.

V
We shall now examine the Applicants’ other submissions one by one.

Final Submission No. 5 alleges that the—

“Respondent, by word and by action, has treated the Territory
in a manner inconsistent with the international status of the Terri-
tory, and has thereby impeded opportunities for self-determination
by the inhabitants of the Territory; that such treatment is in vio-
lation of Respondent’s obligations as stated in the first paragraph
of Article 2 of the Mandate and Article 22 of the Covenant; that
Respondent has the duty forthwith to cease such actions, and to
refrain from similar actions in the future; and that Respondent
has the duty to accord full faith and respect to the international
status of the Territory;” (C.R. 65/35, p. 70).

The Respondent’s acts alleged to be inconsistent with the international
status of the Territory are as follows (Memorials, Chap. VIII, pp.
189-194):

(a) General conferral of Union citizenship upon inhabitants of the
Territory.

(6) Inclusion of representatives from South West Africa in the Union
Parliament.

(c) Administrative separation of the Eastern Caprivi Zipfel from the
Territory.

(d) The vesting of South West Africa Native Reserve Land in the
South Africa Native Trust and the transfer of administration of
“Native” affairs to the Union’s Minister of Bantu Administration
and Development. ;

Concerning (a) : that the status of the Native inhabitants of a mandated
territory is distinct from that of the nationals of the mandatory power,
and, therefore, that the Native inhabitants are not invested with the
nationality of the mandatory Power by reason of the protection extended

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to them, was made clear by a resolution of 23 April 1923 of the Council
of the League of Nations. (League of Nations, Official Journal, 1923,
p. 604; cited in Memorials, p. 190.) This is the natural consequence of
the fact that sovereignty does not rest with a mandatory Power and that
it possesses no sovereign power over the mandated territory and the
inhabitants.

Concerning South West Africa, the question of the status of the in-
habitants had been regulated by an Act of 1926 (No. 18 of 1926) and
an Act of 1927 (No. 40 of 1927), which were repealed in 1949 by the Act
at present in force—the South African Citizenship Act, 1949 (No. 44
of 1949). By the latter Act, under section 2 (2), inhabitants of South
West Africa who were born there and were domiciled there automatically
became citizens of the Union by virtue of their place of birth.

Of course the individual inhabitants of the Territory can voluntarily
obtain naturalization from the mandatory Power. But the compulsory
‘mass conferment of the Respondent’s citizenship, having regard to the
spirit of the Mandate and the international status of the mandated
territory, cannot be justified. The Respondent may find it difficult to
defend itself against the charge of possessing the avowed intention of
piece-meal incorporation amounting to de facto annexation.

The effect of the general conferment of Union citizenship upon the
inhabitants of the Territory does not remain a purely theoretical one.
It may have an important significance in the matter of the right of the
inhabitants to address petitions to the United Nations Organization.
If the general conferment be valid and if the inhabitants of the Territory
acquire citizenship of the Union, they would lose the right of petition
to the United Nations which they have had, and their right of petition
—being the subject’s right-—could only be exercised against the highest
legislative and administrative authority in the land, namely South Africa.

We consider that the act of the general conferment of Union citizenship
upon the inhabitants of the Territory, being inconsistent with the inter-
national status of the Territory, goes beyond the scope and limit of the
discretionary power recognized by Article 2, paragraph 1, of the Man-
date and that Article 2, paragraph 1, of the Mandate, which stipulates that
“... the Mandatory shall have full power of administration and legis-
lation over the territory subject to the present Mandate as an integral
portion of the Union of South Africa to the territory” (italics added),
cannot be interpreted to justify such general conferment of Union
citizenship. The reason for this is supposed to be that this provision
recognizes such power in respect of administrative and legislative matters
in the ‘C’ mandate because of the technical consideration of expediency
and economy whilst not allowing highly political acts which may affect
the international status of the Territory.

Concerning (6): the South West Africa Amendment Act (Act No. 23
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318 SOUTH WEST AFRICA (DISS. OP. TANAKA)

of 1949) provides for the inclusion of elected representatives from South
West Africa in both the Senate and the House of Assembly of the Union
Parliament. The same Act, in addition to deleting all references to the
Mandate as such from the Union Statutes, makes no distinction between
the representatives of the Territory and those elected from the provinces
of the Union. The representatives of the Territory possess the same right
to speak and to vote on matters regarding the Union also.

Apart from the question of the discriminatory policy of the Union
concerning the election of the territorial representatives, namely election
only by “Europeans’’, we are unable to overlook the important signi-
ficance of the fact of the inclusion of elected South West African repre-
sentatives. This amendment does not appear to come within the Manda-
tory’s “power of administration and legislation over the territory ...
as an integral portion of the Union of South Africa” (Article 2, paragraph
1); it means far more than a simple administrative measure which, as
providing for treatment as an integral portion of the Union, is permitted
by the said provision; it is an act of a constitutional nature which influ-
ences both South Africa and the Territory of South West Africa, which
particularly affects the international status of the Territory as “an
important step towards the political integration of the Territory into
the Union” (Report of the Committee on South West Africa, U.N.,
G.A., O.R., 1th Sess. Supp. No. 12 at 8 (A/3151) (1956), cited in the
Memorials, pp. 192 and 193), and which implies the incorporation into
South Africa of the Territory of South West Africa as a fifth province.

Therefore, the Respondent cannot justify the inclusion of the repre-
sentatives from South West Africa by referring to the phrase ‘tas an
integral portion of the Union” in Article 2, paragraph 1, of the Mandate.
The act of the Respondent is inconsistent with the international status
of the Territory recognized by the provisions of Article 22 of the Cove-
nant as well as by the Mandate for South West Africa.

Concerning (c): heading (c) is concerned with the question of the
administrative separation of the Eastern Caprivi Zipfel from the Terri-
tory. This part of the Territory of South West Africa, a narrow strip in the
north-eastern corner of the Territory, has been subject to frequent
change in the mode of its administration since the inception of the
Mandate on South West Africa. The main reason thereof lies in
geographical factors, namely the remoteness of this region from the
administrative centre of the Territory, Windhoek, and the difficulties of
access to it.

In 1939, the Union enacted Proclamation No. 147, transferring
administration of the Eastern Caprivi Zipfel from the Administrator of
South West Africa to the Union directly. In 1955 the report of the Com-
mittee on South West Africa condemned this separation as a violation
of the Mandate, the main reason thereof appears to be that—

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“,.. such a separation is likely to prejudice consideration (b) of the
‘General Conditions’ which must be fulfilled before the Mandate
régime can be brought to an end in respect of the countries placed
under that régime, approved by the Council of the League on
4 September 1931, namely, that ‘It {the territory] must be capable
of maintaining its territorial integrity and political independence’ ”.
(Report of the Committee on South West Africa, U.N. G.A., O.R.,
10th Sess., Supp. No. 12 at p. 10 (A/2913), 1955, cited in the Mem-
orials, pp. 193 and 194.)

We cannot deny that geographical factors can play an important
role in determining systems and measures of administration. We con-
sider that the phrase “‘subject to such local modifications as circumstances
may require” (Article 2, paragraph 1, of the Mandate) can be referred
to in considering this kind of issue and that the decision of existence
or otherwise of the necessity for the separate administration of this
area comes entirely within the discretionary power of the Mandatory
conferred on him by the said provision of the Mandate. Furthermore,
we consider that the administrative separation, being in itself of a
technical nature, cannot have an effect detrimental to what the ‘‘General
Conditions” would expect to be realized.

Accordingly, the Applicants’ contention on this matter is not well-
founded.

Concerning (d): this heading includes two points. As to the first
point, apart from the possibility of consideration from the angle of
Article 2, paragraph 2, particularly as regards the policy of apartheid
or separate development, the vesting of South West Africa Native Reserve
Land in the South African Native Trust is a measure which is of an
administrative nature and in which economic considerations are pre-
dominant; therefore, it has nothing to do with the international status
of the Territory. It belongs to matters within the discretionary power
of the Respondent as Mandatory, as in the case of (c). Concerning the
second point, namely “the transfer of administration of ‘Native’ affairs
to the Union’s Minister of Bantu Administration and Development”,
we have only to refer to what has been said on (c) and the first point
of (d).

For the above-mentioned reasons the Applicants’ contention under
(d) is not well-founded.

*

In the submissions (original as well as final) the Applicants state
that the Respondent continued to have the obligation to transmit petitions
from the inhabitants of the Territory (Submission No. 2) and that the
Respondent has failed to transmit to the General Assembly of the United
Nations petitions from the Territory’s inhabitants addressed to the
General Assembly; that such failure is a violation of its obligations as

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Mandatory and that the Respondent has the duty to transmit such
petitions to the General Assembly (Submission No. 8).

There is no provision on petitions either in Article 22 of the Covenant
or in the Mandate. The only legal basis for the reference made by the
Applicants is the Rules adopted by the Council of the League of Nations
on 31 January 1923, relating to petitions from mandated territories. The
mandates after the First World War did not mention the right of petition,
the reason being that this right was “‘regarded as a natural concomitant
of the system established by the Covenant ... The receipt and exami-
nation of petitions became subsequently one of the main features of the
system of mandates” (Sir Hersch Lauterpacht, International Law and
Human Rights, 1950, pp. 244-245). If there were no guarantee through
the recognition of a right of petition, the fulfilment of the protection
of human rights and fundamental freedoms in general and in the mandates
might be illusory. This right is inherent in the concept of the body politic
and other political institutions. Even if the right of petition is not based
upon any legal provision, it is “in a sense a natural right” (Duncan Hall,
Mandates, Dependencies and Trusteeship, 1948, p. 198). In this sense
the above-mentioned “League of Nations Rules” and the provision of
the Charter concerning the competence of the Trusteeship Council
(Article 87 (b)) have no more than a confirmatory meaning.

The right of petition entails the obligation of the Mandatory to
transmit petitions to the supervisory organ for acceptance and exami-
nation. In this respect, what is said about the survival of international
supervision, despite the dissolution of the League and the replacement
of the Council of the League by the General Assembly as the supervisory
organ, can be applied to the right of petition.

From what is stated above, it can be concluded that the obligation
of the Mandatory to transmit to the General Assembly petitions from
the inhabitants of the Territory exists; therefore Submission No. 2
concerning petitions is well-founded.

Next, it is clear from the pleadings and oral hearing that the Respon-
dent has failed to comply with this obligation; accoidingly, Submission
No. 8 is well-founded.

*
* *

The Applicants’ Final Submission No. 6 reads as follows:
“Respondent has established military bases within the Territory
in violation of its obligation as stated in Article 4 of the Mandate
and Article 22 of the Covenant; that Respondent has the duty
forthwith to remove all such military bases from within the Terri-
tory; and that Respondent has the duty to refrain from the establish-
ment of military bases within the Territory.”
Article 4 of the Mandate based on a part of Article 22 (5) provides:

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“The military training of the natives other than for purposes
of internal police and the local defence of the Territory, shall be
prohibited. Furthermore, no military or naval bases shall be es-
tablished or fortifications erected in the Territory.”

The second sentence of Article 4 characterizes the status of the man-
dated territory concerning militarization. It declares the military neutrali-
zation of the Territory by prohibiting the establishment of military or
naval bases or the erection of fortifications. The Mandatory is not
permitted to utilize the Territory, by means of bases or fortifications,
for military purposes. This is a limitation imposed upon the authority
of the Mandatory concerning the material element of the military
functions which may be exercized by the Mandatory.

The first sentence of Article 4 of the Mandate prohibits the military
training of the Natives. It may be said that the spirit of this provision
is to be found in a humanitarian consideration, namely the prohibition
of the militaristic exploitation of the indigenous population.

However, the prohibition of the military training of the Natives is
not absolute; the military training of the Natives for the purposes of
internal police and the local defence of the Territory is permissible.
The reason thereof may be that the internal police and the local defence
are not related to the humanitarian idea of this provision.

The first sentence of Article 4 refers only to the training of Natives;
it remains silent on that of White people. Accordingly, it is doubtful
whether military training in general or at least for the purposes of
internal police and local defence is permissible.

That the training of Whites for the purposes of internal police and
local defence is not to be deemed to be prohibited, can be assumed from
the fact that the provision relates only to Natives and that there is no
reason to prohibit the training of Whites for the purposes of internal
police and local defence from the viewpoint of the military neutralization
of the Territory.

Nevertheless, the question is whether military training otherwise than
for the purposes of internal police and local defence is also permissible
for the Whites. We consider that the provision aiming at the protection
of Natives is not concerned with Whites, and that the military training
of Whites in general is not inconsistent with the principle of neutrali-
zation of the Territory. This principle must be considered as not incon-
sistent with the Respondent’s right and duty to defend the Territory in
the event of its being attacked.

Such right and duty must be performed and exercised within the limit
prescribed by Article 4, namely without establishing military bases and
without erecting fortifications. Within this limit the Respondent is
considered to be permitted to maintain facilities for the training of
non-Natives in the Territory.

A few points must be clarified relating to the arguments between
the Parties. As to whether thé military bases must be related to aggressive
designs or not, the conclusion must be in the negative. The Court must

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decide the question objectively; it is not concerned with the examination
of the Respondent’s motive for establishing military bases.

The question whether a common feature of a military base is that
a base is something utilized by a force ‘or an army for the purposes of
operations or for a campaign or not, must be answered in the affirmative
in the sense that the prohibition has a practical meaning mostly in time
of peace and that the purposes of operations or of a campaign are
inherent in the potential meaning. The question whether the place in the
Respondent’s administrative hierarchy and chain of command determines
that it is a military base or not, must be answered in the negative. The
question of administrative hierarchy and command can have no bearing
on the substantive character of a military base.

As to the Applicants’ submission, it is the military bases alleged to be
established in the Territory by the Respondent that are in question, not
the military training of the Natives. The Applicants allege that the Re-
spondent maintains three military bases within the Territory, which are
the Regiment Windhoek, a military landing ground in the Swakopmund
District of South West Africa and “at least one military facility in or
near the Kaokoveld” in part of the Territory.

The Applicants, however, presented no direct evidence to establish
their charge. Their charge was based simply on “information and
belief” (Memorials, p. 181) on which the Applicants refrained from
calling evidence on the pait of their informants. On the contrary, the
Respondent produced direct evidence in contradiction of the evidence
of the Applicants based on information and belief. Testimony given
by a witness-expert, who made inspection of the three places in September
1965 and who was presented by the Respondent at the oral proceedings,
made upon us a strong impression of the absence of any military base
at the three places mentioned above. On the other hand, the Applicants
neither produced any evidence in contradiction thereof nor disputed it
in cross-examination.

On the evidence before the Court the Respondent did not establish
any military or naval bases in the Territory. Therefore, Applicants’
Submission No. 6 is not well-founded.

#
* *

The Applicants’ Submission No. 9 reads as follows:

“Respondent has attempted to modify substantially the terms
of the Mandate, without the consent of the United Nations; that
such attempt is in violation of its duties as stated in Article 7 of
the Mandate and Article 22 of the Covenant; and that the consent
of the United Nations is a necessary prerequisite and condition
precedent to attempts on the part of Respondent directly or indi-
rectly to modify the terms of the Mandate.”

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The answer to this question depends upon the nature of Article 7 (1)
of the Mandate. Does this provision declare the prohibition of unilateral
modification of the Mandate by the Respondent in view of the contractual
nature of the Mandate or does it impose some duty upon the Respondent
to abstain from conduct contrary to the provisions of the Mandate?

In our view Article 7 (1) must be interpreted in the sense of the first
alternative. This provision simply defines a condition for the modification
or amendment of the terms of the Mandate, namely the consent of the
Council of the League of Nations. This provision is of a purely procedural
nature. Its non-observance merely produces the effect that the modifi-

cation cannot take place.

The Applicants’ charge in the Applications rested on the fact that the
Respondent had substantially modified the terms of the Mandate and
also had attempted to do so and, in the Memorials, that the Respondent
attempted to modify the terms of the Mandate.

Whether the alleged conduct of the Respondent is the modification.
or the attempts to modify, the result is the same. ,

Modification is impossible so long as the consent of the United Nations.
is lacking. Since the attempts presuppose the possibility of modification,
they are also impossible without the consent of the United Nations.

The facts relied upon by the Applicants to establish the attempts
by the Respondent to modify the Mandate are not specified in Final
Submission No. 9, but they are referred to in Chapters V, VI, VII and
VIII of the Memorials (Submission No. 9). Chapters V, VI and VIII
deal with alleged violations of Article 2 of the Mandate and Chapter VII
deals with alleged violations of Article 4 of the Mandate.

If the alleged violation of these Articles exists, the violation is simply
concerned with the individual provisions and not with Article 7, para-

graph 1.
A few additional remarks may be made on this Article of the Man-

date.

The prohibition of unilateral modification exists not only in regard
to the Mandatory but in regard to the League of Nations also.

Article 7, paragraph 1, possesses essential meaning for the surviving
Mandate after the dissolution of the League just as does Article 6 in
regard to administrative supervision. The General Assembly of the
United Nations was therefore substituted for the Council of the League.

So long as the Mandate survives on an institutional basis after the
dissolution of the League, the necessity for the future amendment of the
Mandate by consent of both parties does subsist. In this sense the
contractual element is recognized as remaining together with the insti-

tutional elements.
Moreover, this claim of the Applicants, namely that an attempt to

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modify the terms of the Mandate is a breach of Article 7, paragraph 1,
can be recognized as part of the dispute between the Parties which
existed prior to the Application in the sense that the claim constitutes a
development of the same dispute.

For the reason indicated above, the Applicants’ Submission No. 9 is
not well-founded.

(Signed) Kotaro TANAKA.

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