349

SEPARATE OPINION OF JUDGE BUSTAMANTE
[Translation]

Although I am in agreement with the reasoning and conclusions
of the Judgment of the majority of the Court, I am availing myself
of the right granted by Article 57 of the Statute of the International
Court of Justice to develop in a separate opinion certain additional
arguments based on my full personal interpretation of the inter-
national Mandates System in the light of the historical circumstances
of its creation. I believe, moreover, that this process makes it
possible to establish more clearly the responsibility of a Judge in
the totality of a decision of the Court.

*
* *

The present proceedings were instituted by two separate Appli-
cations filed by the Agents of the Governments of Liberia and Ethio-
pia against the Republic of South Africa in its capacity as Mandatory
for the territory of South West Africa, concerning various facts and
situations related to the exercise of the Mandate. By a decision of
the Court, the proceedings under the two Applications were joined.
The Agent of the Republic of South Africa, without going to the
merits of the claims, submitted four preliminary objections, the
first two denying the jurisdiction of the Court, and the other two
maintaining that the Applications are inadmissible owing to lack
of fulfilment of certain conditions. The oral proceedings being over,
the Court has to decide on the objections.

Since the bases of the objections are connected with the inter-
pretation of the Mandate agreement for South West Africa, it seems
to me necessary to examine first of all what, in the light of inter-
national law, are the nature and characteristics of the legal system
of Mandates established by the Covenant of the League of Nations
in 1919. The Mandate for South West Africa is but one example of
the application of this system. |

The creation of the international Mandates

At the end of the First World War, one of the problems to be
dealt with was the determination of the fate of the colonial territories
which, as a result of the war, had ceased to belong to the defeated
States and were inhabited by peoples not yet able to stand by them-
selves. Under Article 119 of the Treaty of Versailles—28 June 1919
—Germany renounced in favour of the Principal Allied and Asso-
ciated Powers all her rights and titles over her oversea possessions,
which they had already militarily occupied. These Powers did not
themselves directly take over sovereignty over these possessions,

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S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 350

but, on 6 May 1919, shortly before the signature of the Treaty
of Peace, agreed to allot them, as Mandates, to certain allied
States which had occupied them!. When the time came for
the signature of the Peace Treaty, those Powers gave substance to
their decision to confirm the Mandates which had been allotted, but
decided at the same time to embody them in a new legal system
placed under the authority and guardianship of the League of Na-
tions. This was the origin of Article 22 of the Covenant.

This historical background shows that the idea of the Mandate
appeared for the first time outside the ambit of the League of Na-
tions, and even before its foundation. At the beginning, it was
confined to a direct allocation of the territories to the Mandatory
by the Powers, but the legal regime governing this allocation had
not yet been defined. It was only at the time of the signature of the
Covenant that the Powers operated the real transfer ofthe Mandates,
as Mandators, to the League of Nations and—in collaboration with
the other founder Members of that organization—embodied in the
text of Article 22 the basic concepts and rules of the international
Mandates, which might be summed up as follows:

(a) recognition of certain fundamental rights as belonging to the
inhabitants of the underdeveloped territories;

{b) establishment of a system of tutelage for such peoples under
an advanced nation acting in the capacity of Mandatory and ‘on
behalf of the League of Nations”;

(c) attribution to States Members of the League of the « sacred
trust of civilization », namely, the promotion of the well-being and
development of the peoples concerned and the safeguard of their
rights.

The sociological interpretation of the international Mandates

The events referred to above were indeed but the expression of
the influence of a collective state of mind in the post-war world.
At that time the general anti-colonialist conscience, which had
been at work for some time, became particularly active and the
preservation and protection of human rights appeared more and
more incompatible with the survival of conquest and the mainte-
nance of colonial regimes. President Wilson, with his ‘‘r4 Points”,
was the leader of this movement at the Peace Conference called by
the victorious Powers to draft the Peace Treaty. He proclaimed the
“nationalities principle’ which was used in the last resort by the
Conference as the criterion for its decisions. One of the main asser-
tions of this principle was the right of every underdeveloped people

1 Communiqué of the Supreme Council of the Peace Conference, dated 6 May 1919.
À. Millot: Les Mandats internationaux, p. 36, E. Larose, Paris, 1924. Official Journal
of the League of Nations, June 1920.

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S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 351

to fulfil its own destiny and aspire to political independence under
the protection and with the respect and assistance of the interna-
tional community +.

The Allied and Associated Powers, in their wisdom, endorsed
these concepts in the Covenant of the League of Nations. The League,
whose assigned purposes were of universal scope, is generally agreed
by legal writers to have acquired the significance of being the first
organized expression of the international community. Indeed, one
has only to read the introduction and Articles 23, 24 and 25 of the
Covenant, together with the Preamble of Part XIII of the Treaty of
Versailles concerning the International Labour Organisation, to
realize that the creation of the League of Nations as a body designed
to give organic structure and a general legal framework to the nations
of the world as a whole was inspired by a new humane approach.
This was a positive realization of ideas already perceived by Vitoria
and Grotius in their thoughts concerning a joint community of
purpose inspiring the coexistence of nations in a framework of law.
In respect of the underdeveloped peoples, Article 22 of the Covenant
reflects the new ideological requirements of the world in its state-
ment of the two characteristic features of international tutelage:
the well-being and development of the people under tutelage and
the joint co-operation of the community of States in the achieve-
ment of these purposes.

In my view, consideration of the sociological factors which
operated from the beginning of the 1919 system of tutelage must be
of prime importance for the interpretation of the nature and sig-
nificance of that system. Since the law is a living phenomenon
which reflects the collective demands and needs of each stage of
history, and the application of which is designed to achieve a social
purpose, it is clear that the social developments of the period con-
stitute one of the outstanding sources for the interpretation of law,
alongside examination of the preparatory work of the technicians
and research into judicial precedents. The law is not just a mental
abstraction, nor the result of repeated applications of judicial
decisions, but is first and foremost a rule of conduct which has its
roots in the deepest layers of society.

It is in the light of this criterion that the constituent elements
and distinguishing features of the system of international mandates
must, in my view, be studied.

The elements of the international Mandate

Three kinds of element must be regarded as making up the system
of international mandates: the operative personal and real elements,
and the purposes on the institution.

1 A. Millot, op. cit., pp.75 ff.

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S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 352

The purposes have already been mentioned in the foregoing
paragraph: they are the well-being and development of the manda-
ted peoples, so as to lead them on to higher stages of civilization
and to political independence. These purposes are sought to be
obtained through a complex legal system, which has fairly close
similarities—in the views of writers—with the legal concepts of
guardianship, trust and mandate in private law, and with the protec-
torate regime in public law. It seems to me that, without exagger-
ating these analogies, the rules governing other similar institutions
should be adapted to international mandates to the extent that is
reasonable, and that the sovereign nature of States permits.

In an objective sense the achievement of the purposes of the
Mandate is entrusted, as a fiduciary attribution of responsibility,
to an advanced nation in the capacity of Mandatory. The extent of
the Mandate differs according to the degree of development of the
people under tutelage, and a number of other circumstances (A,
B, and C Mandates), but in none of those categories does the Man-
datory acquire sovereignty over the mandated people (Art. 22,
paras. 3 to 6).

As a real element of the system, mention must be made of the
physical territory inhabited by the people under mandate. But it
must be noted that this territory is inseparable from the population
and constitutes an instrument to be used in its service. The territory
is handed over to the Mandatory only temporarily for administra-
tive purposes, and in no category of mandate can this be taken to
signify a transfer of sovereignty.

Among the personal elements of an international mandate
mention must, in my view, first be made of the populations under
mandate; secondly, of the League of Nations and the States. of
which it is made up; and thirdly, the Mandatory State.

I do not here mention the Principal Allied and Associated Powers
which, before the foundation of the League of Nations, had directly
allocated the colonial possessions acquired as a result of the war to
certain States as Mandatories. This allocation, which clearly in-
volved legal acts, in reality represented a stage prior to the operation
of the true international system created by the Covenant. The
League of Nations found the appointment of the Mandatories and
the handing over of the ex-colonial territories already accomplished.
It received this heritage from the Powers and, on that basis, began
its functions as an international tutelary institution.

The history of this preparatory period is quite conclusive.

The first step by the Council of the League of Nations was—in
accordance with the advice of the Belgian Representative, M.
Hymans, expressed in a report adopted by the Council on 5 August
1920—-to request the Principal Allied and Associated Powers:

(a) to name the States to which they had decided to allocate the
Mandates provided for in Article 22 of the Covenant;

37
S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 353

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

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

According to the Hymans report, when the Powers had replied
to those questions the Council would take cognizance of the Man-
datory Power appointed and would examine the draft Mandates
communicated to it, in order to ascertain that they conformed to
the prescriptions of Article 22 of the Covenant; it would then
notify each State appointed as Mandatory that it was invested
with the Mandate 1.

It was in connection with this approach that the Powers in-
formed the Council of the allocation of the Mandates to the countries
which they had already appointed as Mandatories on 6 May Ig19,
and also sent it the drafts containing the terms and. conditions of
each Mandate. These drafts included that which the Government
of Great Britain had directly agreed upon with the Government
of the Union of South Africa for the Mandate for South West
Africa. (This draft is known as the “Balfour Draft” *.) The Council
approved it with some non-essential changes ?, which were never
the subject of reservations or complaints by either Great Britain
or the Union of South Africa.

These details have to be mentioned to bring out the fact that
the “Mandate Declaration’ for South West Africa made by the
Council of the League of Nations on 17 December 1920—at the
same time as several other similar declarations—was in origin a
direct bilateral convention, including the compromissory clause in
Article 7, between Great Britain and the Union of South Africa.
This convention was confirmed by the Council in accordance with
Article 22, paragraphs 2 and 8, of the Covenant of the League of
Nations.

After these events in the initial period of activity of the Council,
the intervention of the Allied Powers as such, at least as far as
appearances are concerned, vanished from the legal and political
setting in which the new Mandates system was to operate. Those
Powers continued, as Members of the League of Nations, to take
part in debates in the Council and the Assembly, but any individual
activity by them as Mandators or virtual sovereigns of the Man-

1 À. Millot, op. cit., pp. 36 and 55.

2. Photostat copy distributed to Judges of the Court by the Registry in October
1962, containing the document received from the Secretariat of the United Nations
in Geneva entitled “Mandate for German South West Africa— Submitted for Appro-
val (9596)’’.

3 A. Millot, op. cit., pp. 61.

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S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 354

dated territories disappeared. Article 22 of the Covenant does not
mention whether the Powers were to preserve for the future the
power to appoint Mandatories where necessary, or whether that
power was to be conferred on the League of Nations through the
Council. I would personally opt for the latter presumption since,
in my view, the intention of the Powers was to renounce finally any
rights to the former colonies. Moreover, the question was no longer
of any importance from the time of the promulgation of the Charter
of the United Nations, Article 81 of which confers on the Organi-
zation the right to make such appointments.

The populations under Mandate are in my view an essential
element of the system, because Article 22 of the Covenant recog-
nized them as having various rights, such as personal freedom
(prohibition of slavery), freedom of conscience and religion, equitable
treatment by the Mandatory, and access to education, economic
development and political independence (self-determination). They
were thus recognized as having the capacity of legal persons, and
this is why in the Mandate agreements those populations are, as I
believe, parties possessed of a direct legal interest, although their
limited capacity requires that they should have a representative
or guardian.

The tutelary function of the League of Nations, of which the
Council was the organ to define and supervise the conditions of the
Mandate, derives from the provisions of Article 22, particularly
paragraphs I, 2, 7, 8 and 9.

The Mandatory exercises its function on behalf of or as delegated
by the League of Nations (Article 22, paragraph 2). While, through
the Council, it is for the League to “define” the degree of authority, ;
control or administration to be exercised by the Mandatory (Ar-
ticle 22, paragraph 8), the latter gives its consent and accepts or
refuses the function (Article 22, paragraph 2). Therefore one of the
features of an international Mandate is that the Mandatory per-
forms its function completely willingly.

In my view there is no valid reason for disregarding the applic-
ability of the legal principles governing certain private law in-
stitutions in the field of international law. During the elaboration
of legal doctrine recourse has sometimes been had—and this is
well known—to municipal legal sources to establish and shape, on
the principle of analogy, new systems to regulate the legal relation-
ships between peoples. One such case is that of international
tutelage, where the striking analogy with municipal guardianship
can be seen in Article 22 of the Covenant of the League of Nations
and in Chapters XI-XIII of the Charter of the United Nations.
If that is true, I cannot see any reason for not recognizing the
populations under international Mandate as having the status of
legal persons and for not applying to them the principle of the
necessity of their legal representation by “third parties” since these

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S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 355

peoples have the rights recognized by the Covenant together with
a certain capacity, although a diminished one, as in the case of
wards under municipal law, and having regard to the fact that an
organized international power (the League of Nations), personifying
the international community, takes over, in accordance with the
Covenant itself, the tutelage and protection of the populations
concerned. The function assigned by the Covenant to the League
of Nations, as a clearly characterized ‘‘tutelary authority” for such
territories, comes particularly clearly out of the text of paragraph 2
of Article 22, according to which the Mandatory is required to
exercise its functions ‘‘on behalf of the League’.

It seems to me that this point is of prime importance for the
decision in this case because, starting from the recognition of the
direct legal interest which the populations under tutelage possess in
their mandate regime and having regard to their capacity as legal
persons—for whom the League of Nations is the tutelary authority
—many legal consequences flow therefrom. In the first place, the
populations under Mandate are in fact parties to the Mandate
agreements and represented by the League of Nations. Secondly,
the Mandatory’s obligation to submit to the supervision of the
tutelary authority and account for the exercise of the Mandate is
obvious. Finally, from this concept it follows that all the Members
of the Organization are jointly and severally responsible for the
fulfilment of the “sacred trust” and for watching over the popula-
tions whose destiny has been put under their aegis. Evidence of
this joint and several responsibility is the fact that paragraph 2
of Article 22 of the Covenant enables the capacity of Mandatory
to be conferred on any Member of the League whatever, which
means that all must be prepared to accept such a mission. Moreover,
paragraph 4 of the same Article stipulates that the wishes of the
communities formerly belonging to the Turkish Empire must be
heard in the selection of the Mandatory from among the advanced
nations. This link of responsibility between all the States Members
and the underdeveloped countries is the natural effect of the ‘‘sacred
trust” prescribed by the Covenant. In the light of these inferences
it cannot be a matter for surprise if Article 7 of the Mandate for
South West Africa grants States Members the right to apply the
compromissory clause with regard to the Mandatory. These States
are not ‘third parties” outside the Mandate but jointly and
severally responsible associates of the tutelary organization en-
trusted with ensuring the proper application of the Mandate.

For these same reasons there can be no question, in my view, of
qualifying as mere “humanitarian’’ or ‘‘moral’’ recommendations
the provisions of the Covenant of the League of Nations and of the
Charter of the United Nations in which the “sacred trust” of the
States Members is described and established in respect of the popu-
lations of the Mandated or Trusteeship territories. This approach
unjustifiably reduces the scope for the operation and application

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S. W. AFRICA CASES (SEP, OPIN, JUDGE BUSTAMANTE) 356

of the law, and confines within an ambit of mere equitable choice
what in fact are clearly characterized rights pregnant with social
implications. The “sacred trust” relates not only to duties of a
moral order but also to legal obligations correlative with the rights
recognized as belonging to the inhabitants of those territories by
Articles 22 of the Covenant and 76 of the Charter. By these provi-
sions international law claimed for such peoples the quality of
human and legal persons. This is the same process of legal advance
under which the abolition of slavery was first proclaimed and which
then led to the promulgation of the Declaration of Human Rights!.
By an interesting coincidence al} the rights set forth in Articles
22 and 76 for the benefit of the under-developed populations are
embodied—as well as many others—in this Declaration.

Characteristic features of the international Mandate

From all of the foregoing, it may be inferred that the Mandate
System instituted by the Covenant of the League of Nations has
the following characteristic features:

1. The Mandate is a complex institution which—at base—has
similarities with other private and public law concepts but which—
in substance—constitutes a form of tutelage in which certain ex-
colonial populations, having regard to their partial incapacity,
are the subject of protection by the civilized States assembled in
a body—the League of Nations—which in fact represents the in-
ternational community.

2. The Mandate, in respect of its external forms and general
aspect, is a legal institution incorporated in international legislation
(Article 22 of the Covenant of the League of Nations). The latter
prescribes all the features, organs, conditions of and securities for
the system and, in this sense, the Mandate is an integral part of the
Treaty of Versailles, in which the Covenant is included. For each
particular case the Mandate adds certain special details and condi-
tions relating to a specific territory and Mandatory. The instru-
ment in which these details are defined is given the name of ‘““Man-
date Declaration” or “Mandate Agreement”. The Mandate agree-
ments or conventions constitute a subsequent phase of implementa-
tion, and represent the concrete or objective aspect of the system,
its application to a particular case. But there can be no disjoining
of the agreement from the system : the former takes its inspiration
from the principles of the latter, and those principles are an integral
part of the agreement. The system and the agreement operate as
an inseparable whole whose elements, which are conditional one
upon the other, form an organic unit.

1 General Assembly, Official Documents, 3rd Session, Resolutions, Part I,
21 September-12 December 1948.

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S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 357

3. The function. of the Mandatory is a responsibility rather
than a right (Article 22, paragraph 2 of the Covenant). The less
developed the population under Mandate, the heavier the respon-
sibility of that Mandatory, as in the case of C Mandates (Article 22,
paragraph 6). It is for this very reason that the Mandatory must
be willing to accept the Mandate (Article 22, paragraph 2); it is
for the Mandatory to refuse the trust if it cannot bear the burden.
This is one of the most characteristic features of the system:
the Mandatory signifies its acceptance not as a party with an
interest in the prospects flowing from the contract but as a colla-
borator of the international community in its trust of civilizing
a certain under-developed people. It is one of those cases where
the bilateral aspect of the agreement does not seek to establish
or suppose any real balance between the obligations and the rights
of the parties. The legal concept is nearer that of the unilateral
contracts of private law rather than that of synallagmatic contracts.
The rights granted to the Mandatory are for the purpose only
of the better fulfilment of its obligations towards the country
under tutelage. The concept of obligation predominates. Once
the Mandate has been accepted, the mission of the Mandatory
becomes a mission which, to a varying extent, must always surpass
the Mandatory’s own interests and, first and foremost, serve the
interests of the population under tutelage. The C Mandates do
not constitute an exception to this rule. It is true that under them
the Mandatory enjoys wider powers and may even legitimately
obtain greater economic benefits by the use made of the ex-colo-
nial territory; but as far as the Mandatory is concerned, the terri-
tory is ves aliena as in all the Mandates, and its inhabitants are
legal persons who will one day have the capacity to decide for
themselves.

4. An international Mandate is, by its very nature, temporary
and of indeterminate duration. Its duration is limited by the ful-
filment of the essential purpose of the Mandate, that is to say,
by the completion of the process of development of the people under
tutelage through their acquisition of full human and political
capacity. It follows that any Mandate agreement remains in force
until such time as the people concerned attains the desired degree
of structural organization as a nation.

5. The corollary to the two foregoing paragraphs is that an
international Mandate, through which tutelage is exercised, does
not and can never imply a transfer of sovereignty to the Mandatory
or the annexation of the mandated territory by the tutelary State.
It is only at the conclusion of the Mandate that the people can
choose for itself between independence or incorporation in the ad-
ministering State. It is true that C Mandates (Article 22, para-
graph 6 of the Covenant) brought the mandated territory into a
closer relationship with the Mandatory by the fact that the latter

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S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 358

applied its own laws to the territory in question; but this exten-
sion of the legislative powers of the Mandatory does not imply
an act of sovereignty on its part, but simply the application of a
prior authorization with regard to administration contained in the
Mandate agreement, with a view to adapting the territory to the
legislation of a more advanced country.

6. The tutelary organization’s right of supervision over the
exercise of the Mandate is an institutional rule in the Mandates
System, expressly provided for by Article 22 of the Covenant
(paragraphs 7, 8 and 9). This right is not just an adjectival or
procedural formality, but an essential element on which adherence
to the purposes of the system and the efficiency of its application
depend. It should not be forgotten that in the Mandate agreements
one of the parties, the beneficiary under tutelage, has no possibility
of entering into discussion with the other party, the Mandatory,
on an equal footing, having regard to its lack of legal capacity.
Thus, the only way of safeguarding the rights of the people under
Mandate is to entrust the supervision of the Mandatory’s acts to
the Mandator or tutelary organization which, on the one hand,
represents the ward and, on the other, personifies the interest of
the States of the world assembled in an association. Absence of a
supervisory organ would be tantamount to unilateral and arbitrary
exercise of the Mandate and would inevitably lead to annexation.
A Mandate so mutilated would be of an essentially different nature
from that provided for in Article 22 of the Covenant.

7. Another special feature of the Mandates System is that its
effects extend to all the States Members of the League of Nations
as a consequence of the “‘sacred trust of civilization” conferred on
them by Article 22 of the Covenant. This extension is reflected in
responsibilities and obligations with a view to the protection of the
peoples under Mandate, either in the internal or administrative
activities of the League, or on the judicial plane when the Mandate
agreements contain a compromissory clause.

The Mandate Agreements

In seeking to establish the nature of the Mandate agreements
there should be no hesitation over the fact that they are instruments
in which a contractual element is present. There is a combination
of intentions. I shall not deal with the ‘‘pre-agreement” by which
one or more Powers allocated the Mandate for a particular territory
to another State: this is a matter outside the League of Nations.
But once this “‘pre-agreement’”’ came into the hands of the League
of Nations, the formulation of the agreement began: the Manda-
tory’s acceptance is a priori presupposed because it had already
expressed that acceptance directly to the Power concerned. If
that Power had also defined the conditions of the Mandate, there

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S, W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 359

remained only to obtain the confirmation of the Council of the
League and to specify that the Mandate would be exercised by the
Mandatory on behalf of the League of Nations. The agreement was
then concluded. But if the degree of authority, control or admini-
stration to be exercised by the Mandatory had not been the subject
of direct agreement between the Power and the State Member
appointed as Mandatory, the Council was to define such matters
explicitly (Article 22, paragraph 8, of the Covenant). This was the
“Mandate Declaration”, which has currently always and every-
where been known as the “Mandate agreement”. Acceptance of
this Declaration by the Mandatory might certainly be explicit,
but it was always implied, not only because the Declaration was
transmitted or notified to all the states Members—including the
Mandatory and without objection on its part—but, above all,
because in fact the very exercise of the Mandate was objective evi-
dence of the agreement of the Mandatory. It may be added that
this almost unilateral appearance of the Council’s “Declaration”
is not in any way surprising, having regard to the nature—explained
above—of the international Mandate institution. More than a
contract, it is a statute the basic conditions of which are laid down
in advance by Article 22 of the Covenant; in regard to these, the
Mandatory has only the alternatives of acceptance or refusal.
The strictly contractual part of the “Mandate agreement’’ is
represented only by the practical details in each case relating to
the Mandatory’s degree of authority and the conditions with which
its administration must comply. But it is self-evident that in this
case the “Declaration” is but the result of a prior understanding be-
tween the Council and the Mandatory. It should be added that as
regards these details, the Council does not negotiate with the Man-
datory: under paragraph 8 of Article 22 of the Covenant, the Council
“defines” and it is for the Mandatory to accept the responsibility
or not. It must be reiterated that an international Mandate is first
and foremost a responsibility and not an exchange of balancing
services as in ordinary bilateral contracts.

There is no indication in paragraph 8 of Article 22 of the Covenant
from which it may be inferred that the rules defined by the Council
to establish the conditions of each Mandate were to take the form
of a solemn treaty. In fact, the customary rule adopted in the case
of South West Africa, and in other cases, was that it took the form
of a Declaration by the Council, as referred to above. Moreover,
the final terms of the text of this kind of declaration by the Council
provides for deposit of the original in the archives of the League
of Nations, after forwarding of certified copies to the secretariat
and to the Powers Signatories of the Treaty of Versailles. Con-
sidering that the “Declaration” by the Council is an official public
instrument of the League of Nations, in my view that instrument
implies or contains of itself the formal registration of the Mandate
to which it refers, without need of any other formality. This

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S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 360

form of registration of and publicity for the declaratory instruments
of the Council in respect of the Mandate agreements constitutes
a special procedure somewhat different from but just as effective as
that prescribed in Article 18 of the Covenant for treaties. Moreover,
as the International Mandates system is an institution related
to the internal administration of the League of Nations, it is not
at all odd that solemn forms should not have been used.

The Compromissory Clause

The texts of the “Declarations” or “Mandate agreements”
which were issued immediately after the establishment of the
League of Nations contain a clause which does not appear in the
text of Article 22 of the Covenant, although it must in the spirit
of the Covenant be regarded as a necessary security for the system.
This is the ““compromissory clause” under which the Mandatory
“agrees that, if any dispute whatever should arise between the
Mandatory and another Member of the League of Nations relating
to the interpretation or the application of the provisions of the
Mandate, such dispute, if it cannot be settled by negotiation, shall
be submitted to the Permanent Court of International Justice”.
(See for example Article 7 of the Mandate for German South West
Africa, dated 17 December 1920, Memorial submitted by Liberia,
annex B, page 172.) Having regard to its content, Article 7 of the
Mandate of 17 December 1920 was but a provision equivalent to
the ‘optional clause” in Article 36, paragraph 2, of the Statute of
the Permanent Court of International Justice, this Statute having
been ratified by the Union of South Africa nine months later, on
4 August 1921!

Moreover this provision of Article 7 is but the implementation
of Article 14 of the Covenant of the League of Nations which estab-
lished recourse to the Permanent Court as the final, although
voluntary, means of settling international disputes between States.
In this case, recourse to judicial jurisdiction was desirable and even
urgent, having regard to possible frictions which might arise
between the tutelary body or its members and the Mandatory.
A supervisory regime, like that of the Mandate System where the
supervised entity is a sovereign State, can create situations and
cause controversies of an extremely delicate nature, settlement by
law being the only appropriate form. Moreover, the insertion of this
clause in the Mandate agreement merely satisfied the wishes expres-

1 Fifth Annual Report of the Permanent Court of International Justice (1928-
1929), page 300. Collection of texts governing the jurisdiction of the Court, P.C.I.J.,
Series D, No. 6, page 18.

45
S, W. AFRICA CASES (SEP. OPIN, JUDGE BUSTAMANTE) 361

sed in Article 14 of the Covenant in favour of the jurisdiction of
the Permanent Court of International Justice. Again, this safe-
guard of recourse to judicial jurisdiction is universally accepted
for the settlement of all sorts of litigious situations or situations
subject to legal interpretation, so that its inclusion in a Mandate
agreement does not involve any anomaly.

From the foregoing considerations it may be concluded that the
compromissory clause, just as much as the rest of the agreement, is
one of the major provisions of the Mandate system.

During the proceedings there has been discussion as to whether,
in the Mandate regime, the jurisdiction of the International Court
constitutes a form of supervision over the Mandatory’s exercise of
its functions or, more correctly, an integral part of the Mandate
supervision machinery, another phase of which is the administrative
supervision for which the Council of the League of Nations was
made responsible.

It is clear that a decision by the Court in a case of this kind
implies, 7 fact, a form of supervision over the acts of the Mandatory,
in the sense that it acts as a regulator to define the true meaning
and scope of the Mandate as a legal institution and to correct possible
deviations by any party in its application. But it cannot be said’
that the Court is a supervisory organ with regard to the exercise
of the Mandates, because its function is strictly legal and not ad-
ministrative or political, and because a Court cannot on its own
initiative institute’ supervisory measures, its functions being
exercised only at the request of the parties, which virtually negatives
the effectiveness of the supervision. In my view, the true signi-
ficance of the clause providing for recourse to the Court is that of
a security for both parties as to the proper application of the Mandate
and the proper exercise of supervision.

The Mandate agreements which contain the compromissory
clause introduce a new personal element into the convention:
that of “another Member of the League of Nations’’. It is for the
other Members of the League of Nations to act as a party in the
judicial controversy, against the Mandatory State. Since this
provision has given rise to discussion and to doubt as to its inter-
pretation, it seems to me necessary to go into the point.

I have already said that the new international Mandate institu-
tion, incorporated into the Covenant as a legal advance and based
on the concept of tutelage, was one in which, by reason of its human
rights objectives, each of the Members of the League of Nations
and, in general, the entire international community of which the
League was probably the first organized expression, had an interest.
Should a dispute arise between the League and a Mandatory, all
the States Members would have the same legal interest as the League
in the dispute, and would be affected to the same extent by viola-
tions of the agreements, one or more of those States having the

46
S. W. AFRICA CASES (SEP. OPIN, JUDGE BUSTAMANTE) 362

right to appear before the Court to defend the common cause.
But there is a further reason which obviously the Council of the
League of Nations took care to provide for in the compromissory
clause. Under Articles 34 and 35 of the Statute of the Permanent
Court, only States and the States Members of the League could
be parties in cases before the Court ini contentious proceedings.
The League, which was not a State, could only request “advisory
opinions” (Article 14 of the Covenant); thus should an insoluble
difference of view with the Mandatory arise, the intervention of
the States Members, the jointly responsible constituent elements
of the League, became indispensable as parties to the proceedings.

The dissolution of the League of Nations and the new
Trusteeship System of the San Francisco Charter

Obviously the provisions of the Covenant which had instituted
the international Mandates System did not envisage the possibility
of the dissolution of the League of Nations and did not foresee
its possible effects on the Mandate agreements in force. In fact,
however, the dissolution occurred in April 1946 and the question
arises whether that event had as a consequence the total or partial
lapsing of the Mandates instituted in accordance with the Covenant
of Igr9.

In connection with this question, it is desirable, once more, to
recall the nature of the Mandates system and the role of the parties
to the separate agreements concluded in each case.

In the Mandate agreements, the peoples under tutelage, lacking
a full capacity, were represented, by the League of Nations which
was to assume the protection of their interests. The question there-
fore is whether the disappearance of a guardian on the international
plane is sufficient to alter or to cause to lapse agreements which
it had concluded in favour of the country under Mandate with
third States acting as Mandatories.

I can find no justification for this argument concerning lapse.
After the dissolution, the two parties principally concerned—the
country under tutelage and the Mandatory—remained the same;
and the purposes of the Mandate had to continue to be implemented,
for the peoples under tutelage still had an urgent need of assistance
and guidance. If, therefore, the two parties survived as such and
if the purposes of the agreement were still in course of implemen-
tation when the League was dissolved, the continuance of the Man-
date would appear to be beyond question. It has to be stressed that
in principle the duration of an international Mandate extends over
an indefinite and frequently long period, up to the moment when
the full capacity—moral, civic and political—of the subject under
tutelage is achieved. The question whether the disappearance of

47
S. W. AFRICA CASES (SEP. OPIN, JUDGE BUSTAMANTE) 363

the League of Nations, as the tutelary body, raises an insurmount-
able obstacle to the survival of the Mandate remains to be consi-
dered.

This contention is based on the premise that the League being a
principal or direct party to the Mandate agreement, the disappear-
ance of that party causes the Mandate to lapse. But the view has
already been advanced that the intervention of the League,
apart from its quality as a high international authority, was
no more than that of a representative, in the role of a protecting
or tutelary body, of the party really concerned, which is the country
under tutelage. In such circumstances, the disappearance of a
guardian in the realm of municipal private law would raise no
difficulty since the legal systems of States have provided means
of replacing a guardian who has died or is prevented from or
unwilling to continue as guardian, without any disturbance or
interruption of the guardianship. There can be no perfect analogy
on the international plane, but I think that just because there is
an absence of legislative rules on the subject the system is a great
deal more flexible, having regard to the element of the sovereign
power of States which create their law as and when the need arises.
What is of principal importance in the present case is to maintain
in action the machinery of the Mandate in order to render assistance
to peoples under tutelage. In fact, the situation would be one where
the only element lacking for the entire working of the system would
be the body entrusted with supervisory power by the League of
Nations. But a number of events occurred immediately before or
simultaneously with the dissolution of the League which opened
the way to filling that gap and providing that element.

The situation created in the world by the war made it impossible
for the old League of Nations to survive. In these circumstances, a
considerable number of States, which included the Principal Allied
and Associated Powers and the majority of the States which in
1919 had participated in the foundation of the League of Nations,
met at San Francisco in April 1945, immediately after the Second
World War, to create the United Nations, the Charter of which is
dated 26 June 1945. The principles and essential purposes of
this new body coincided, in the main, with those of the League of
Nations. So far as the institution of Mandates was concerned, the
Charter of the United Nations maintained, in principle, the concept
of tutelage as it had appeared in the Covenant of Igig, although
in a much more developed form in the new instrument in which
the expression “International Trusteeship System’ replaced the
name ‘‘Mandate” (Articles 75 ef seg.). The Charter expressly
provided for the transformation of the old ‘“’Mandates” of the
League of Nations into ‘Trusteeship Agreements’’ subject to the
new system, in accordance with the rules and conditions, indicated
in Articles 76, 77, paragraph 1 (a), 79, 80, 81 and 85. These Articles
will be analysed hereafter; what is relevant to my reasoning is

48
S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 364

the noting of the following facts: (a) that the Charter of the United
Nations made provision for the maintenance of the old Mandates
and provided means for their transformation into “Trusteeship
Agreements” in conformity with the new system; (6) that conse-
quently, according to the opinion of the founders of the United
Nations, the dissolution of the League was not to affect the normal
functioning of the Mandates in essence but only in form.

Moreover, the Assembly of the League of Nations expressed a
similar criterion in one of its final resolutions, the resolution dated
18 April 1946, on the eve of its dissolution. That resolution read as
follows: |

“The Assembly … recognizes that, on the termination of the
League’s existence, its functions with respect to the mandated
territories will come to an end, but notes that Chapters XI, XII and
XIII of the Charter of the United Nations embody principles corre-
sponding to those declared in Article 22 of the Covenant of the League.

Takes note of the expressed intentions of the Members of the
League now administering territories under Mandate to continue to
administer them for the well-being and development of the peoples
concerned in accordance with the obligations contained in the
respective Mandates, wntil other arrangements have been agreed be-
tween the United Nations and the respective Mandatory Powers.”
(Italics added.) (L. of N., O. J., Spec. Sup. No. 194, pp. 58, 278-279.)

All this shows clearly that in the opinion of the founders of the
United Nations and also according to the criterion of the Assembly
of the League of Nations, the dissolution of that latter body was
not intended to put an end to the continuity or the functioning of
the Mandates instituted under Article 22 of the Treaty of Versailles.
The “‘continued existence” of the Mandate, referred in the Appli-
cations, follows from the Charter itself and from the resolution of
18 April 1946.

The above findings do not in any way imply an intention to
establish or to regard as established the principle of automatic or
ex officio succession of the United Nations to the League of Nations.
It has been sufficiently clearly shown, in the course of the written
and oral proceedings in this case, that the theory of automatic
succession is inconsistent with the historical background of the
discussions and resolutions of the two great bodies during the
transitional period in 1945-1946. What I wish to emphasize is that
the San Francisco Charter provided for the necessary machinery
to render viable the continuance of Mandates after compliance, in
each particular case, with certain formalities.

The time has now come to consider specific provisions of the
Charter of the United Nations regarding the Mandates instituted
during the period of the League of Nations.

49
S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 365

* * *

The San Francisco Charter reveals definite progress beyond the
Covenant of the League of Nations in respect of the development
of the institution for the protection of dependent, under-developed
or former colonial countries. There is, in the first place, specific
recognition of the principle that the interests of the inhabitants of
these territories are paramount, and confirmation of the acceptance
by the Member States of the United Nations of the “‘sacred trust”?
of assisting the peoples who have not yet attained a full measure of
self-government (Article 73 of the Charter). To this end there was
instituted an “international Trusteeship System” the basic ob-
jectives of which are laid down in Article 76: the promotion of
social, economic and political advancement, preparation for in-
dependence, respect for fundamental human freedoms without
distinction as to race, sex, language or religion.

As to the position of old Mandates in relation to the new Trustee-
ship System under the Charter, Article 77, paragraph 1, sub-
paragraph (a), provided in a mandatory manner (“shall apply’’)
for the application of the new Trusteeship System to territories
now held under Mandate, although the second paragraph of the
same Article, as well as Article 79, refer to subsequent agreements
for the determination of the terms and conditions in which trustee-
ship shall be established. In the interval, that is to say between the
promulgation of the Charter and the entry into force of an agree-
ment, nothing in the new provisions of the Charter shall be con-
strued ‘‘in or of itself to alter in any manner the rights whatsoever
of any States or any peoples or the terms of existing international
instruments to which Members of the United Nations may respec-
tively be parties” (Article 80, paragraph 1, of the Charter). But,
immediately thereafter, paragraph 2 of the same Article provides
that paragraph 1 “shall not be interpreted as giving grounds for
delay or postponement of the negotiation and conclusion of agree-
ments for placing mandated and other territories under the
Trusteeship System...”

In my opinion, this wording of paragraph 2, which is connected
with that of Articles 77 (para. 1 (@)) and 81, clearly defines the
obligation—the urgent obligation it might be said—of Mandatory
States without delay to put into force a new Mandate agreement.
This interpretation is fully warranted by a logical reasoning since
the intention of the authors of the Charter cannot have been to
leave the mandated territories indefinitely to the unfettered dis-
cretion of the Mandatory alone. To have done so would have been
to distort the character of this legal system as well as the intentions
of its founders. It would have amounted to what has been called
the ‘‘freezing” of the Mandate, which would practically be equiv-
alent to annexation. The best proof that this interpretation is
correct, is that all the Mandatory States which held Mandates

50
S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 366

before the drawing up of the Charter—except the Republic of South
Africa—ratified new agreements with the approval of the United
Nations. The General Assembly, which in this case is the official
body for authoritative interpretation, has invariably considered
that an obligation exists for those States to adapt their Mandates
to the new Trusteeship System, and for their part the Mandatory
States have subscribed to this view. There is thus a very clear
concurrence of interpretation to which no reasonable objection can
be raised.

The objection has been raised that if Article 81 of the Charter
is to be interpreted—in the light of Articles 77 (para. I, sub-para. (a))
and 80 (para. 2) as. a mandatory provision imposing upon Mandatory
States an obligation to conclude Trusteeship agreements, this
would involve the legal absurdity of compulsion to conclude a
contract the characteristic feature of which is “‘voluntartedad’’, that
is a freedom of decision to accept or reject. No legislative or judicial
power could, in principle, legally require such an aberration. But
that reasoning has no relevance to the point under discussion: the
true legal concept which arises, in connection with the articles of
the Charter to which reference has been made, is quite different.
Each of the States which became Members of the United Nations,
by virtue of their voluntary acceptance and signature of the
Charter, assumed all the obligations flowing therefrom, and,
consequently, if one of those Member States is a Mandatory, it at
the same time freely accepted the obligation to renew or to trans-
form the Mandate into a Trusteeship agreement. The negotiation
of a new agreement is in no sense an act imposed by force: it is a
pact which was concluded at the time when the Charter was signed
by the Mandatory.

It has been maintained that after the dissolution of the League of
Nations it was not indispensable—as being the only solution—to
effect the transformation of the Mandate Agreements into Trustee-
ship Agreements in accordance with Chapters XII and XIII of the
Charter, since Chapter XI and, in particular, Article 73, indicates
the normal course for the functioning of League of Nations Mandates
without having to have recourse to the system of Trusteeship
Agreements introduced by the United Nations. The only obstacle—
it is said—to the continuance of the normal exercise of the Mandate,
after the dissolution of the League, is the absence of the supervisory
power entrusted to the Council under Article 22, paragraph 8, of
the Covenant and Article 6 of the Agreement of 17 December 1920.
The Council having disappeared, the machinery for supervision
comes to a stop. But this gap is filled, so far as the new situation
is concerned, by Article 73, paragraph (e), which lays down a new
and less demanding form of supervision—but still a form of super-
vision—and again completes the institutional framework of the
system in both its aspects: obligations of the Mandatory (Preamble
and paragraphs (a) to (d)) and supervision of its action (paragraph (é)).

51
S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 367

Tam unable to agree with this view because it is not in conformity
with either the wording or the system of the Charter. Chapter XI
constitutes a broad and general statement of principles, duties and
policies which, in reality, cover all categories of non-self-governing
territories (the old Protectorates and Colonies of the Powers which
had just been victorious in the Second World War, the detached
Colonies of the defeated States, the Mandated territories born of
the First War and territories which will voluntarily be placed under
trusteeship in the future). But it is Chapters XII and XIII which
govern in a concrete way the new Trusteeship System the basic
objectives of which are described in Articlé 76 and of which the
transformation of Mandates into Trusteeship Agreements is spe-
cified in Articles 77, paragraph 1, sub-paragraph (a), 79, 80 and 81.
These are, consequently, the relevant Articles of the Charter relating
to Mandates and not Articles 73 and 74 of Chapter XI. As was so
well said by a Member of the Court, that latter Chapter was
designed to incorporate to some extent in the new general protective
regime established by the Charter those territories which the
victorious Powers held under their sovereignty before the conflict
and to guarantee to those territories some international supervision,
though one exercised with great flexibility.

The Jurisdiction of the Court
in the Case, according to the Applications

The Applications submitted by the Governments of Liberia and
Ethiopia found the jurisdiction of the Court on Article’7 of the
Mandate for German South West Africa and Article 37 of the
Statute of the International Court of Justice, having regard to
Article 80, paragraph 1, of the United Nations Charter.

The second paragraph of Article 7 of the Mandate agreement of
17 December 1920 accepted by the Union of South Africa as Man-
datory, provides as follows:

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

The Statute of the International Court of Justice, of which the
Applicants and the Respondent are signatories, provides in Ar-
ticle 37 that:

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

52
S. W. AFRICA CASES (SEP. OPIN, JUDGE BUSTAMANTE) 368

Paragraph 1 of Article 80 of the Charter provides:

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

On the basis of these provisions, the reasoning of the Applicants
may be expressed as follows: the.Mandate for South West Africa,
including Article 7 which contains the compromissory clause, is a
convention in force. Since a dispute which cannot be settled by
direct means has arisen between Liberia and Ethiopia on the one
hand and the Republic of South Africa as Mandatory for South
West Africa on the other, the solution must be sought by recourse
to international justice. The Permanent Court of International
Justice having disappeared, there remains only to apply Article 37
of the Statute of the International Court of Justice which specifically
provides for the jurisdiction of the Court in this kind of circumstance.

From an examination of the content of the Applications, it may
be seen that the questions requiring definition are as follows:

I, Is the Mandate a convention or not?
2. If yes, is it a convention 7m force?
3. If so, is Article 37 of the Statute of the Court applicable?

The reply to these questions will follow from the critical analysis
which I shall make of the Preliminary Objections presented by the
Agent for the Republic of South Africa.

The Preliminary Objections

Succinctly the content of the objections can be summarized as
follows:

1. The Mandate is not a convention in force.

2. The Mandate agreement, or Declaration by the Council of the
League of Nations dated 17 December 1920, is not even a conven-
tion, but simply a preparatory document or outline of what should
have been the true Mandate agreement (amended Submission by
the Respondent read at the last public hearing).

3. The compromissory clause contained in the Mandate agree-
ment (Article 7) does not fulfil the conditions required for validity
by the special nature of this clause.

4. The dispute which is the subject of the controversy does not
fulfil the conditions laid down in Article 7 of the Mandate agreement.

53
S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 369

5. Consequently, Article 37 of the Statute of the Court is not
applicable. The Court has no jurisdiction in this case.

First Preliminary Objection

The Government of the Republic of South Africa denies the juris-
diction of the Court to hear and to determine this case, alleging that
“the Mandate for German South West Africa, upon Article 7 of
which the Applicants’ claim to jurisdiction is founded, has lapsed,
in the sense ... that it is no longer a treaty or convention in force
within the meaning of Article 37 of the Statute of the Court”.

The grounds supporting this objection may be put as follows:

(a) The Mandate agreement for South West Africa was a con-
vention between the League of Nations and the Union of South
Africa as Mandatory. But the League of Nations having been dis-
solved in April 1946, one of the contracting parties disappeared and,
therefore, the convention as such lapsed. All that remained in force
was the objective or real fact of the existence of a territory and a
population which, since 1920, had been held by the Respondent
State under a special Mandate status. With the disappearance of the
League of Nations, the former contractual provision assigning super-
vision over the Mandate to the Council of the extinct League (Article
6 of the Mandate Agreement) became impossible of implementation
and it remained for the Mandatory only to perform unilaterally the
institutional obligations of a general nature provided in Article 22,
paragraphs I, 2, 3 and 6, of the Covenant of 1919 and reproduced in
Articles 1 to 5 of the Council’s “Declaration” of 17 December 1920.
To sum up, the Respondent maintains that it continues to exercise
the Mandate as an objective institution subject to the basic rules of
Article 22 of the Covenant, but that it is exempt from the supervision
provided for as a non-essential or merely procedural contractual
obligation in paragraphs 7 and 9 of Article 22 (Article 6 of the
Mandate agreement) since the supervisory organ—the Council of
the League of Nations—-had ceased to exist. The Mandate, in the
sense of a convention, had lapsed.

But I think I have shown in the foregoing paragraphs that the
dissolution of the League of Nations does not in itself constitute,
according to my view, a sufficient reason for declaring the Mandate
agreement to have lapsed, since the real parties to the agreement,
namely the population under Mandate and the Mandatory, remain
unchanged. The League of Nations, as tutelary representative of that
population, could be replaced in that function; and it has been in
fact by the United Nations in every case where the Mandatory
became a Member of the new Organization by signing the San
Francisco Charter. It was then for the competent organs of the
United Nations to take over the supervisory authority which the

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S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 370

Covenant assigned to the Council of the League of Nations: all that
was required was the prior conclusion of a new Mandate agreement
with the Mandatory as provided for in Article 79 of the Charter.

Moreover the League of Nations in its resolution of 18 April 1946,
and the United Nations in the Charter, recognized the survival of
the Mandates after the dissolution of the League. After that
dissolution, the former Mandates maintained their “‘continued ex-
istence”, that is to say, their quality of “international conventions
in force”.

In this preliminary phase of the proceedings the Court has to
decide on the following vital matter: the present force of the
Mandate Agreement for South West Africa; for whether it has or
has not jurisdiction to hear the present case depends on whether or
not that Agreement is in force within the meaning of Articles 36
and 37 of the Statute. In the light of all of the foregoing consider-
ations there can in my view be no doubt that the answer is in the
affirmative: the Mandate Agreement continues and is in full force.

The Respondent has contended that the Republic of South
Africa’s title as Mandatory was received under the former League of
Nations Mandate regime and that, therefore, the Mandatory had no
obligation to submit to the new United Nations regime, since there
is no legal link of automatic succession between the two world
organizations. If the Republic of South Africa had remained outside
the United Nations and not become a Member of it, the argument
might probably have seemed to be well founded. But the Union of
South Africa was one of the Founder Members of the United Na-
tions; it took part in all the proceedings for the dissolution of the
League of Nations and in the discussion of the San Francisco
Charter; it subscribed to the Charter without making any reservation
at the time of signing it (which would moreover have been unusual.
and unacceptable); therefore it accepted that instrument in its
entirety with its principles and obligations, among which were the
inclusion of the former Mandates in the new trusteeship regime
(Article 80, paragraph 2, of the Charter taken in conjunction with
Articles 77, paragraph 1 (a), 79 and 81). These Articles taken
together obliged the Mandatory State to negotiate and conclude
as soon as possible a trusteeship agreement in replacement of the
former Mandate agreement. To sum up, the fact of the Republic of
South Africa becoming a Member of the United Nations was the
legal link which as far as it was concerned established continuity
between the two world organizations and between the two systems
for the protection of the former German colonies.

It has also been argued that the supervisory system of the Charter
is different from and more exigent than that of the Covenant of the
League; that the supervisory organs under the Charter are composed
and operate differently from those of the dissolved League, and that
the Mandatory State cannot be compelled to sign a contractual in-
strument which would render its obligations to the supervisory

55
S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 371

organ more burdensome and onerous. The contention is arguable in
principle or on speculative grounds, since as supervision—as has been
said—-was an essential part of the Mandate system, there are good
reasons for believing that such supervision would the better fulfil
its role and objectives to the extent that it became severer and more
perfected, despite the reticence of the Mandatory. But leaving aside
this aspect, the certain fact is, as has been said in the preceding
paragraph, that the Republic of South Africa, as a Member of the
United Nations, had accepted as a new norm the supervisory regime
of the Charter. The only way of obtaining mitigation of that regime
or the maintenance of the supervisory machinery established by the
former Mandates would be to negotiate a new trusteeship agreement
with the competent organ of the United Nations as provided for in
Article 79 of the Charter. If this had been the first step taken by
the Union of South Africa in 1945, the problem would long ago
have been settled on equitable terms. Unfortunately the record
shows that the Republic of South Africa has consistently declined
to entertain such a solution.

In the meantime, the Respondent State has chosen a more liberal
position: that of exercising a Mandate without supervision on the
basis of the assertion that supervision is merely a “procedural
condition” and not essential to the Mandate regime. In my view
this assertion is incorrect and even arbitrary, because it is contra-
dicted by the substantive or institutional character assigned by the
Covenant to the Council’s right of supervision (Article 22, paragraphs
7, 8 and 9). I must underline what I have already said elsewhere: a
Mandate without supervision is no longer a Mandate because such
mutilation would signify the unilateral exercise of the Mandatory
function, which at base greatly resembles disguised annexation. It
is not possible to attribute such an intention to the authors of the
Covenant or even less to those of the Charter. Apart from the need
for supervision of the whole process of the exercise of the Mandate,
it is essential that there should be some body which, if necessary,
can act as impartial judge of whether the degree of development
acquired by the Mandated population is such that there should be a
declaration of independence; some body possessed of sufficient
authority to request that the Mandatory cease its functions. It may
be added that from the beginning this condition of supervision was
accepted by the Mandatory, as it figured at the time of the foundation
of the League of Nations in the Balfour draft Mandate presented to
the Council of the League by the British Government representing
the Union of South Africa.

(6) Another reason by which the Respondent supports its first
preliminary objection is that the Mandate agreement did not take
the form of a treaty as provided for in Article 18 of the Covenant of
the League of Nations. The agreement is indeed simply contained
in the Council’s Declaration of r7 December 1920. But I have already
explained earlier that the Mandate agreements are conventions sut

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S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 372

generis, a Chain of intentions expressed in successive acts in which
the conditions originally proposed by the Powers, with the consent
of the Mandatory, are finally defined by the Council of the League
of Nations. There is no indication in Article 22 of the Covenant as
to the instrumental form of the Mandate agreements, although a
general practice existed, in view of the very special nature of the
Mandates System, of including these agreements in “Declarations”
of the same kind as that of r7 December 1920 for the Mandate for
South West Africa. I have already said that in my view the official
instrument in which the Council’s “Declaration” is contained in-
cludes of itself an act of registration of the Mandate without any
other form of registration being necessary. The Respondent does not
deny having always regarded this declaration as the real Mandate
convention. The pleadings in the first part of the proceedings con-
firm this consensus. Moreover, the form of publicity given to and
registration of these “declarations” or ‘agreements’ laid down in
the final paragraph of the Mandate agreement for South West
Africa (Annex B) and in other similar agreements, is somewhat
different from but very similar to that provided for by Article 18
of the Covenant in the case of treaties. [ am convinced that this
divergence from the solemn forms provided for in Article 18 of the
Covenant does not affect the validity of the Mandate agreements or
conventions for the following reasons:

1. Because Article 18 refers to ‘‘treaty or international engage-
ment’’ and the Mandate agreements, although included among such
treaties or international engagements, have a special characteristic
in that they are not covenants between States but between a State
and an international organization.

2. Because the Mandate agreements are internal administrative
instruments of the League of Nations.

3. Because the form of publication and registration of the Man-
date agreements is entirely similar to that laid down by Article 18
of the Covenant in the case of treaties.

4. Because the exact meaning of Article 18 of the Covenant does
not in my view extend to nullifying unregistered treaties 7pso jure,
but simply creates for one of the parties the right 2f i wishes of
raising the objection of inadmissibility of the obligation to perform
the treaty. Any other interpretation would tend to destroy the
principle of good faith which governs, as a basic rule, the legal theory
of conventional instruments and which has received explicit con-
firmation in international law in Article 2, paragraph 2, of the Charter
of the United Nations. In the present case South Africa recognized
and exercized the Mandate of 17 December 1920 for a number of
years as a valid agreement or convention, and cannot by the prin-
ciple of good faith be allowed to alter that course of conduct.

57
S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 373

(¢) The Agent for the Republic of South Africa, at the last public
hearing, amended the first of the submissions read at the end
of the oral arguments in a way which entirely alters the position
taken up till then. The Respondent State has in fact always recog-
nized the existence of the Mandate agreement constituted by the
“Declaration” of 17 December 1920. It has moreover recognized that
this agreement remained fully in force until the date of dissolution
of the League of Nations, that is to say for more than 25 years
(1920-1946), by admitting that after that date the Mandate, although
in its view having lapsed as a convention, survives as a reality
derived from the institution created by Article 22 of the Covenant.
But at the last moment the Respondent asserts that there never
was a true Mandate agreement because the “Declaration” of 17
December 1920 was only a unilateral document issued by the
Council of the League of Nations and which, at the most, represents
a preparatory outline of what was to have been the future Mandate
agreement.

With the greatest moral and legal conviction I find that this
submission is not well founded. In the first place, the Respondent
has consistently regarded it as established :# good faith that the
Mandate agreement was identical with the Declaration. Secondly,
I have shown in the foregoing pages that the contractual element
of acceptance by the Mandatory is present in all the paragraphs of
the preamble of that Declaration, where reference is made to the
Government of the Union of South Africa having agreed to accept the
exercise of the Mandate. Thirdly, the Declaration was forwarded to
that Government and brought to its knowledge without it ever
having raised in the Council any allegation or the slightest reserva-
tion with regard to the significance of the agreement. Fourthly, the
Union of South Africa, now the Republic of South Africa, has exer-
cized the Mandate for South West Africa for 42 years on the basis
of the document of December 1920. Fifthly, during the early stages
of these proceedings, the Republic of South Africa filed the Decla-
ration as being the document constituting the agreement (Annex B
to the Preliminary Objections),

In my view, therefore, this submission of the Respondent must be
dismissed.

(d@) As another ground for its first objection to the jurisdiction
of the Court the Respondent contends that the compromissory
clause inserted in Article 7 of the December 1920 Mandate agree-
ment is a sort of bastard accretion, an anomaly introduced into the
the document by the Council of the League of Nations. In doing so,
it is argued, the Council exceeded its powers, since Article 22 of the
Covenant did not include the compromissory clause among the
conditions of the Mandate. Moreover, in respect of its external form,
the compromissory clause in Article 7 of the Mandate does not
constitute a true treaty within the meaning of Article 18 of the
Covenant of the League of Nations.

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S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 374

I have already touched upon this subject in another section of
this opinion.

While it is clear that recourse to the jurisdiction of the Permanent
Court was not included in Article 22 of the Covenant as one of the
original conditions of the Mandate agreements, it is also true that
under paragraph 8 of Article 22 of the Covenant the Council of the
League of Nations was empowered “to define” the conditions of
administration and control of each Mandate. I have already set out
the many reasons for which the Council had, as an act of good
Mandate administration, to include the compromissory clause in the
agreements with a number of Mandatory States for various terri-
tories. For their part the Mandatories, including the Republic of
South Africa, far from refusing the insertion of this clause, accepted
it explicitly or tacitly. Article 7 was never the subject of a denun-
ciation by South Africa. On the contrary, South Africa expressly
agreed with Great Britain concerning the compromissory clause
when accepting the Mandate, according to the Balfour draft the
text of which was the basis for the Council’s Declaration of 17 De-
cember 1920.

Moreover, as I have already said, the compromissory clause
is the legal means of providing a final settlement for disputes arising
between the League of Nations or its Members and the Mandatory
in the administrative or political field in connection with the exercise
of the supervisory powers referred to in paragraph g of Article 22
of the Covenant and in Article 6 of the Mandate agreement. It
must be noted that in international life sufficient powers are lacking
in institutional or administrative procedures for a settlement of
conflicts always to be possible by those means. In some cases it is
necessary to have recourse to the authority of an impartial third
Power which gives a final legal decision. The League of Nations
as such had not the possibility of bringing contentious proceedings
against a State, the concept of sovereignty forbidding such an
approach. It was thus the States Members, possessed of the same
legal interest as the League, which were endowed with that function
by Article 7 of the Mandate.

If the compromissory clause could not be brought into opera-
tion at the request of “‘another Member’’, the whole international
Mandate system might fail because there would be no decisive
legal means of settling deadlocks between the Mandatory and the
League of Nations with regard to administrative supervision.
An example of this is afforded by the present case, the normal
operation of the Mandate for South West Africa having been upset
and supervision paralyzed for many years, owing to the power-
lessness or ineffectiveness of an administrative or political solution
to put an end to the existing dispute.

59
S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 375

As regards the form of the instrument, I have already explained
that because of the special nature of the Mandate agreements
the solemn form of an international treaty was not workable
because what was involved was not a convention between two
States, but one between the League of Nations and the Mandatory
State for the purpose of the internal administration of the League.
However, the final article of the Agreement of 17 December 1920
provided for the publicity to be given to and the registration of
the convention, including the compromissory clause, by prescribing
that the ““Mandate Declaration”, an official document of the Coun-
cil, should be deposited in the archives of the League of Nations
and that certified copies should be sent to the Secretary-General
and to all the signatoires of the Treaty of Versailles. This is much the
same form of registration as is prescribed in Article 18 of the Covenant
for international treaties. The necessary safeguards concerning the
dissemination and authenticity of the agreements were provided for.

The compromissory clause contained in Article 7 of the Mandate
instrument was not subject to the rules governing the optional
clause laid down in Article 36 of the Statute of the Permanent
Court of International Justice, since that Statute only came into
force later. Indeed, the Statute, the Protocol of Signature of which
is dated 16 December 1920, was signed only gradually during the
following months by the States Members of the League of Nations.
The Assembly’s resolution of 13 December 1920, mentioned in the
Protocol of Signature, provided that the Statute would come into
force ‘‘as soon as this Protocol has been ratified by the majority
of the Members of the League”. The Union of South Africa ratified
it only on 4 August 19211. The ratifications provided for in the
resolution of 13 December 1920 not having reached the required
majority immediately, the Statute entered into force only on
1 September 1921 ?, that is to say, more than eight months after
the date of the Mandate for South West Africa containing the
compromissory clause in Article 7. It was not until after 1 Septem-
ber 1921 that preparations were set on foot for the first election of
judges *. Thus, at the date of the approval of the Mandate for
South West Africa, Article 36 of the Statute had not yet acquired
binding force and, subsequently, no formal defect could be imputed
to the compromissory clause of the Mandate instrument.

But there are other very important aspects of the subject.

1. The Union of South Africa ratified, on 4 August r92z, the
Protocol of 16 December 1920 which opened the Statute of the
Permanent Court of International Justice for signature by States
Members of the League of Nations.

1 League of Nations, Official Journal, Special Supplement No. 193, Twenty-first
List, Geneva, 1944.

2 Manley O. Hudson, Permanent Court of International Justice, New York, 1934,
Pp. 134-138.

3 Hudson, op. cit., pp. 116-120.

4 The Permanent Court of International Justice, 5th Annual Report (1928-1929),
page 390. Collection of Texts governing the jurisdiction of the Court, Series D,
No. 6, page 18.

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S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 376

2. On 19 September 1929 the Union of South-Africa subscribed
for 10 years (susceptible of prolongation) to the optional clause in
Article 36, paragraph 2, of the Statute of the Permanent Court,
and ratified the declaration on 7 April 1930+. This acceptance of
the optional clause was renewed on 7 April 1940 “until such time
as notice may be given to terminate the acceptance” ®.

3. Under Article 93, paragraph 1, of the Charter of the United
Nations, the States participating in the present controversy
are, by reason of the fact that they are States Members of the
Organization, also parties to the Statute of the International Court
of Justice. Acceptance of the Statute in 1945 consequently involved
acceptance of its Article 37 which provides for the transfer to the
International Court of Justice of the jurisdiction of the Permanent
Court in the cases covered by that Article. It may therefore be
concluded that the Republic of South Africa has, since its acceptance
of the Statute of the new Court, voluntarily accepted the replace-
ment of the Permanent Court by the International Court of Justice
in the concrete case provided for by Article 7 of the Mandate for
South West Africa, which was for the Republic “a convention
in force” within the meaning of Article 37 of the Statute. At no
time, neither at the date of adherence to the Statute nor since
that date, has the Republic of South Africa made any reservation
or formulated any exception to exclude the case of Article 7 of
the Mandate from its acceptance of Article 37 of the Statute of
the International Court. It is therefore legitimate to conclude that
its acceptance of Article 37 was simple, complete and unrestricted.
The case of Article 7 of the Mandate is automatically included in
the statutory provision of Article 37. Moreover, Article 35 of the
Statute of the International Court provides that ‘the Court shall
be open to the States parties to the present Statute”. Liberia,
Ethiopia and the Republic of South Africa have, in their capactiy
as such, the benefit of that provision.

4. On 12 September 1955 the Union of South Africa recognized
the jurisdiction of the International Court of Justice, by accepting
the optional clause in paragraph 2 of Article 36 of the Statutes.
It seems to me to be beyond doubt that on the basis of that attitude
the chronologically earlier provision of Article 7 in the Mandate
for South West Africa was confirmed as being within the domain
of the jurisdiction of the International Court of Justice.

There were then two voluntary acts by which the Republic
of South Africa accepted the transfer of jurisdiction from the

1 First addendum to the fourth edition of the Collection of Texts governing the
jurisdiction of the Court. Leiden, 1932, page 7. Eigth Annual Report of the Perma-
nent Court of International Justice, 1932.

2 Sixteenth Report of the Permanent Court of International Justice, p. 334.
Yearbook of the International Court of Justice, 1946-1947, p. 215.

3 International Court of Justice, Yearbook 1955-1956, page 184; 1959-1960,
page 253; 1960-1961, page 215.

61
S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 377

Permanent Court to the International Court: in the first place,
the subscribing to Article 37 of the Statute; and secondly, adherence
to the optional clause in 1955. These acts, undertaken at a time when
the Mandate Agreement of 17 December 1920 was in force, rein-
force, confirm and render irremovable Article 7 of that Agreement
which contains the compromissory clause.

(ec) There is another defect vitiating its validity which the
Respondent attributes to the compromissory clause in Article 7
of the Mandate agreement, which is that that clause refers to
“another Member of the League of Nations’ as the definition
of the parties with capacity to invoke the jurisdiction of the Court,
notwithstanding the fact that the parties to the agreement are
only the League of Nations and the Mandatory. In the Respondent’s
view, such “‘another Member” is a third legal person improperly
invited to be a party to judicial questions deriving from the Man-
dates. Furthermore, there are not now any more Members of the
League of Nations, which was dissolved sixteen years ago, therefore
the compromissory clause cannot be implemented. It is no longer
in force. .

In fact, this observation relates to the subject-matter of the
Second Preliminary Objection, and that is why I shall deal with it
in my consideration of that Objection. I can say in advance that in
my view the observation is not well founded.

*
* *

It follows from the foregoing that the Mandate Agreement
for South West Africa is a convention in force, and that by virtue
of the provision contained in Article 7 of that Agreement, Ar- _
ticle 37 of the Statute of the International Court of Justice is appli-
cable to the present controversy. In my view the First Preliminary
Objection is not well founded.

Second Preliminary Objection

The Second Preliminary Objection is formulated by the Respond-
ent more or less as follows: according to Article 7 of the Mandate
Agreement, a dispute to be heard and determined by the Permanent
Court of International Justice would be one arising between the
Mandatory and “another Member of the League of Nations”.
But in the present dispute there is no “Member” of the League
involved, the League having ceased to exist in April 1946. The
States which are Applicants, Liberia and Ethiopia, are ex-Members
of the dissolved League and have not therefore preserved the active
membership required by Article 7. The Applicants have therefore
no “locus standi’’ to appear before the Court. Moreover, it is
incomprehensible that the Council of the League of Nations should
have brought in as a party to the Mandate Agreement “another

62
S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 378

Member of the League of Nations”, such a State being a third
person without any direct legal interest in the implementation
of the Mandate (Preliminary Objections, p. 149).

To judge whether this Objection is well founded or not, it is
necessary once again to have regard to the nature of the interna-
tional Mandate institution created by Article 22 of the Covenant
of 1910. I refer in particular to the sections headed ‘The elements
of the international Mandate” and ‘‘Characteristic features of the
international Mandate’, paragraph 7 of the present Opinion.

In summary form, the doctrinal interpretation of the Mandates
System instituted by the Covenant may be stated as follows: a
“sacred trust” for the benefit of the under-developed peoples of
the former colonies was entrusted to the Members of the League
of Nations, which represented the international community.
Each of those States Members is bound, jointly and severally
with the League, by the obligation and by the responsibility to
promote the purposes envisaged in Article 22 of the Covenant,
namely, to assist, advance and protect the peoples concerned.
In consequence, each State Member has an individual legal interest
in seeing that the Mandates entrusted by the League of Nations
to the various Mandatories are properly performed and fulfilled.
In the Mandate agreements the States Members are thus not alien
elements or “third persons” having no connection with the con-
tractual relationship, but joint parties with the League of Nations
for the achievement of its objectives.

This is the explanation of the participation of the States Members,
alongside the League, in the compromissory clause of the Mandate.
agreements. Each of these States acquires a right of legal inter-
vention to protect the interests of the mandated population; and
this right—which is at the same time a responsibility—extends
to the whole duration of the Mandate. From the entry into force of
the agreement with the Mandatory, this right of intervention of
other States Members becomes fart of the legal heritage of each one
of them, not for the duration of the League of Nations, but for
the duration of the Mandate itself. Possession of this right by the
States which acquired it thus extends beyond the life of the League
of Nations, even if the League is dissolved before the expiry of the
Mandate.

The Council of the League of Nations was therefore certainly
not acting ultra vires when—in Article 7 of the Mandate—it granted
to States Members of the League of Nations the right to participate
in cases relating to the exercise of the Mandate. The whole of Ar-
ticle 22 of the Covenant, considered in the light of the historical
background, previously referred to, and in particular its paragraphs
I and 2, makes it possible to see the aim pursued by the authors
to enable all the States Members of the international community
incorporated in the League to participate in the “‘sacred trust of

63
S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 379

civilization” conceived and established for the well-being and
development of peoples not yet able to stand by themselves,
If paragraphs 7 and 8 of Article 22 confer upon the Council, re-
presenting the League of Nations, specific functions with regard
to supervision of the Mandate, that does not deprive Member
States of their legal interest in the performance of the conditions
by means of which the Mandate is carried out. The Member States
are, in this sense, inseparable collaborators in the action of the
League.

All this leads to the conclusion that the reference to ‘‘another
Member of the League of Nations” in Article 7 of the Mandate
for South West Africa must be interpreted as referring to States
which were Members of the League of Nations up to its dissolution.
That membership gave them a power inherent in their status as
States to act as parties in accordance with Article 7 of the Mandate
during the whole of the time that the Mandate is exercized by the
Mandatory. It is only in this way that the purposes of the institu-
tion can be served.

If this interpretation were not accepted, and since the League of
Nations as such has been dissolved, the legally unacceptable
conclusion would be reached that the mandated populations would
not have had the possibility of recourse to international judicial
authority in respect of possible abuses or deviations by the Manda-
tory. And it must be recalled that the right of defence before the
law is expressly mentioned in the Declaration of Human Rights.

Since Liberia and Ethiopia were Members of the League of
Nations up to its dissolution, those two States have, in my view,
the right to invoke the jurisdiction of the Court in accordance with
Article 7 of the Mandate for South West Africa and Article 37 of the
Statute of the International Court of Justice.

Third Objection

In the opinion of the Respondent, “the disagreement between
the Applicants and the Republic of South Africa is not a ‘dispute’
as envisaged in Article 7 of the Mandate’. In view of the provisions
of that Article disputes capable of being referred to the Court must
satisfy certain conditions, or be of certain kinds, which is not so
in the present case. The Applications of the Applicants are therefore
said to be inadmissible.

Pursuing its reasoning, the Respondent points out that according
to the Memorials of the Applicants, the subject of the controversy
is concerned with whether there was a violation of the obligations
imposed on the Mandatory by Articles 2-6 of the Mandate for the
benefit of the peoples of the Mandated Territory. But, in the sub-
mission of the Respondent, the action of the Applicants does not
comply with the principle that a legal remedy is only available

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S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 380

where a direct legal right or interest on the part of the Applicant
is in issue. The defence of the peoples under tutelage is not within
the individual competence of Member States since it is a function
of the Council of the League of Nations as supervisory organ under
the Mandate. The Court therefore cannot deal with an application
such as those of Liberia and Ethiopia, where no direct rights and
interests of the two States are involved. States Members of the
League of Nations might no doubt have certain interests of their
own with regard to Mandated territories, such as in the case of the
economic principle of the ‘open door”, or the defence of their
nationals against acts which constituted an abuse of the Mandate;
but no direct legal interest can be attributed to the Applicants
in respect of the defence of the rights or interests of third parties,
in other words, the peoples of the Mandated territories. In this
domain, the Applicants have no locus standt before the Court.

This contention of the Respondent has already been refuted
by the argument based on the nature and purposes of the institu-
tion of Mandates. Since the Treaty of Versailles, Mandates have
introduced a new principle into international law, one which re-
flects a need of the international conscience: that of legal tutelage
for the well-being and development of former colonial peoples.
The human, civic, cultural and economic rights of these peoples,
and the prohibition of abuses which might be committed to their
prejudice, are expressly laid down in Article 22 of the Covenant of
the League of Nations which in its spirit is in harmony with the
Preamble of that instrument. From that moment, the “‘sacred
trust” conferred on the League and consequently on each and every
one of its Members, was no longer a “moral” or “humanitarian”
trust, but clearly one of an undeniably legal scope, laid down by
international law. Since that time, Member States, as integral
parts of the League Itself, have possessed a direct legal interest
in the protection of underdeveloped peoples. It is no doubt on
the basis of these principles that the Mandate Agreement, in its
Article 7, conferred upon Member States, in their individual capaci-
ty, the right to invoke the compromissory clause to require of
the Mandatory a correct application of the Mandate. The Council
of the League of Nations was authorized to include this right
because it is one which flows naturally from the “‘sacred trust”
instituted in the Covenant and because paragraph 8 of Article 22
of that instrument gives the Council the right to “define” the condi-
tions of the Mandate. The provision in question is indeed very
easy to understand since Articles 34 and 35 of the Statute of the
Permanent Court did not make it possible for the League of Nations
itself to have recourse, as a body, to the Court which was open
only to Member States and States in general. All this reasoning
is confirmed by the Preamble and by Articles 1 (paras. 2 and 3)
and 2 (para. 5) of the Charter of the United Nations.

65
S. W. AFRICA CASES (SEP. OPIN, JUDGE BUSTAMANTE) 38x

Looking at the matter from another aspect, the literal text
of Article 7 of the Mandate provides, in my opinion, the best
guide to a correct interpretation. According to its wording, the
Mandatory agrees that (any) other Member of the League of Na-
tions may submit to the Permanent Court any dispute whatever
relating to the interpretation or the application of the provisions
of the Mandate. This text contains no limitations as regards the
kind of legal interest in issue, be it particular or general, whether
it directly relates to the Applicant State or whether it is concerned
with other persons legally close to the latter. In the present case,
I have already explained that, in my opinion, one cannot describe—
as the Respondent has done—-the peoples of the Mandated territory
as “third parties” not parties to the Mandate convention since
these peoples are one of the parties under the convention, the bene-
fitting party whose interests are, to a certain extent, joint interests
with those of Member States, in view of the principles and purposes
of the Mandate institution. That being so, nobody can rely on the
wording of Article 7 to contend that it was intended to provide
exclusively for recourse to the Court by States seeking the exercise of
the Court’s jurisdiction in defence of their direct private interests
(for instance, the right to the open door or complaints of their
nationals), and that the Article cannot cover applications by any
State in defence of the general interests of the peoples of the Man-
dated territory. Regard must be had to the fact that the wording
of Article 7 of the Mandate is broad, clear and precise: it gives rise
to no ambiguity, it refers to no exception. It is therefore not possible
to exclude from its content legal action concerned with what indeed
constitute the principal problems of the Mandate, that is to say
questions of interpretation with regard to the scope of the Manda-
tory’s rights and the practical application. of those rights to the
peoples placed under tutelage. Having regard to the importance
of these problems, a restrictive interpretation which would include
only the material and individual interests of a State Member must
take a secondary and indeed insignificant place.

As to the actual existence of a dispute in the present cases be-
tween the Applicants and the Mandatory, this has, in my opinion,
been clearly established by the record and particularly by the
official documents of the League of Nations and the United Nations
which appear among the annexes. From these it can be seen that
for several years the two Applicant States, in their capacity as
members of certain organs and committees of the United Nations,
have maintained points of view fundamentally opposed to those
of the Mandatory with regard to the interpretation of various
provisions of the Mandate and with regard to the application of
the Mandate by the Mandatory in a series of concrete cases. A
dispute could not have been more clearly established.

Since the members of delegations accredited to the United Nations
are the official representatives of their respective governments, no

66
S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 382

doubt can remain as to the fact that these differences of opinion
with regard to law and fact have arisen between the Governments
of Liberia and Ethiopia on the one hand, and the Government of
the Republic of South Africa on the other. It follows that the dis-
pute submitted to the Court satisfies the conditions of substance and
of form referred to in Article 7 of the Mandate agreement.

There remains a further objection to be answered: “It could
not be said that the dispute—even if one should be admitted to
exist—is one which has arisen between the Mandatory and two
‘other Members of the League of Nations’ since, after the dissolu-
tion of the League, the Applicants lost their status as present
Members and are merely two former Members of that Organiza-
tion. They are consequently not within the framework provided for
by Article 7.”

This objection has already been met in the consideration of the
Second Preliminary Objection. Following the scheme of all
conventions, in the Mandate agreements provision is made in
such a way as to guarantee the functioning of the system during
the whole period of tts duration. The right to take legal action confer-
red, by Article 7, on other States Members, is inherent in the Man-
date itself and inseparable from its exercise, so long as it lasts.
The right is i#corporated—T must repeat it— in the juridical heritage
of Member States and there it remains latent and alive with no
limits upon its duration until the expiry of the Mandate, in the
absence of any conventional modification of the agreement.

When the text of Article 7 refers to the States enjoying the
benefit of the compromissory clause, the reference to the status of
States Members of the League of Nations must be interpreted as a
means for the individual identification of those States and not as a
permanent condition required for the role of applicant in legal pro-
ceedings. In other words, Article 7 means, in my opinion: “States
belonging to the League of Nations and identified with the pur-
poses of the League shall individually have the right to require
before the Permanent Court the faithful execution of the Mandate
during its entire duration.” But the intention of the Article was
not to say that: “The States Members of the League, so long as it
continues to exist, shall individually have the rights...”, etc.
That latter interpretation would render ineffective the judicial
security in the Mandate in the event of the disappearance of the
League of Nations; and that cannot have been the intention of the
authors of the agreement because the effect would be to prejudice
the peoples under tutelage.

The interpretation which I prefer raises the question whether a
State which has lost the status of a Member of the League of Na-
tions, either by resigning or as the result of a disciplinary measure,
would have the right to invoke Article 7 of the Mandate after the
dissolution of the League in order to institute legal proceedings.
In my opinion there can be no doubt that the answer must be in

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S. W. AFRICA CASES (SEP. OPIN. JUDGE BUSTAMANTE) 383

the negative; for the voluntary or disciplinary separation from a
body or institution implies renunciation or loss of all those nghts
which the former State Member had individually acquired by virtue
of its status as a Member.

This reasoning has given rise to an argument intended to destroy
the possibility of applying Article 7. All the States Members of
the League of Nations voluntarily agreed—it is said—to dissolve
that body (Resolution of 18 April 1946). After that voluntary
dissolution none of the former Members retained the right to
invoke Article 7, for all of them renounced the rights and pre-
rogatives which were the consequences of their status as Members.
It is not possible, however, to ignore the historical facts which
determined the disappearance of the League of Nations. That
Organization—already greatly weakened before the Second World
War—remained paralyzed for the whole period of the War and the
results of the conflict completely upset international realities by
profoundly modifying the former conformation and distribution
of States on which the League of Nations had been based. In fact,
the League was already dead, despite the wishes of its Members,
when its Assembly adopted the Resolution of April 1946 to place its
disappearance on record. At the same time its Members, in agree-
ment with the majority of the other States of the international
community, were greatly concerned that certain principles and
certain institutions which were conspicuous by their social and
humane progress and which had been put into effect by the League
which had disappeared, should remain unaffected by the world
crisis. It was then that they founded the United Nations, the regula-
tions of which devoted special emphasis to the institution of trus-
teeship and provide means for transforming the former ‘‘Mandates”’
into modernised tutelary systems. Article 77 (paragraph 1, sub-
paragraph {a)), 79 and 80 of the Charter established the compulsory
character of that transformation where the Mandatory is a Member
of the United Nations. The wording of Article 79 appears to me to
be eloquent :

“The terms of [the new] trusteeship ... shall [in the imperative]
be agreed upon by the States directly concerned, including the
mandatory power in the case of territories held under mandate by a
Member of the United Nations...” (Italics added.)

The philosophy of this provision is that the Mandatory State
which accepted and signed the Charter of the United Nations accept-
ed the new trusteeship system and must incorporate itself in it
compulsorily.

The corollary is that the Republic of South Africa, a Member
of the United Nations, which has not concluded.a new trusteeship
agreement with that Organization, is in the transitional situation
provided for by Article 80, paragraph 1, of the Charter, which must

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be strictly applied; consequently, the former Mandate convention
of 17 December 1920 must remain unchanged and its Article 7
must necessarily be applied. The “other States Members” of the
former League of Nations are thus fully entitled to invoke the
jurisdiction of the Court (Article 37 of the Statute).

Fourth Objection

In its Fourth and final Preliminary Objection—which is closely
linked with the Third Objection—the Respondent asserts that the
conflict or disagreement—the existence of which is alleged by
the Applicants—is not a dispute which ‘cannot be settled by nego-
tiation” in the sense of Article 7 of the Mandate.

In the development of its argument, the Respondent has con-
tended:

(1) that there has been no exchange of views or direct discussion
between the Parties through the diplomatic channel on the points
which constitute the subject of the dispute;

(2) that account cannot be taken of administrative discussion
or negotiation within the United Nations because these took place
between the Organization itself and the Mandatory and not between
the latter and the Applicant States individually;

(3) that the administrative negotiation in the various organs
of the United Nations took place in circumstances not conducive
to arriving at an agreement since the General Assembly conferred
restricted powers on those organs, which constituted an element
limiting the free exchange of views between the negotiators. On
the other hand, the presence of plenipotentiaries in direct diplomatic
negotiations would, in principle, allow of greater flexibility in
Seeking points of agreement in a wider field of discussion.

It is true that the record contains no reference to direct diplomatic
negotiations between the Parties, that is to say, negotiations carried
out in the traditional way of Ministries for Foreign Affairs and
reciprocally accredited representatives. But the wording of Article 7
of the Mandate in no way indicates that negotiations must take
any particular external form. Any negotiation is adequate if not
in conflict with international custom.

A Member of the Court has wisely said that the field of diplomatic
activity is now much wider than formerly, and that negotiations
between Member States within the organs of the United Nations
also undoubtedly constitute diplomatic negotiations. The delega-
tions of States accredited to the Organization possess a diplomatic
status and act as representatives of their respective governments.
It might further be added that no better place could have been

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chosen in this case for negotiations than the United Nations since
that Organization has the best specialists in the field and possesses
in its archives all the necessary historical and legal information
for the necessary documentation of the discussions.

in the present case, the voluminous documentation put in by
the Parties and especially the annexes relating to the activities
of the United Nations in this case constitute, in my opinion, over-
whelming proof not only of the fact that repeated and reiterated
negotiations took place, in which the Applicants and the Respond-
ent participated, but also that all the efforts made to find a con-
ciliatory solution resulted in failure. The problems of the Mandate
for South West Africa were dealt with by the Fourth Committee,
by the Ad Hoc Committee, by the Good Offices Committee, by
the Committee on South West Africa and finally by the General
Assembly. Each of the Applicants took part, on a number of oc-
casions, in the discussion which took place with the Mandatory
in these organs on the legal aspects of the exercise of the Mandate.
Furthermore, the documents show that on a number of occasions
it was pointed out to the Mandatory that it was necessary for it to
amend its contentions or modify its activities in relation to the
peoples under tutelage. For fifteen consecutive years this funda-
mental opposition of points of view, this unyielding opposition of
the Mandatory in the face of the virtual unanimity of Member
States as to the limits and obligations flowing from the Mandate,
have maintained a situation of permanent deadlock. The votes
of the Applicants, in their capacity as States, against the admini-
strative policy of South Africa are to be found in the documents and
minutes of these meetings. In short: the most categoric legal and
moral conviction emerges from this examination to the effect that
no negotiation is possible and that any further negotiation based on
the rules of the Mandates System would be ineffective to settle
the dispute.

The administrative or political course having been exhausted,
the Applicants have had resort to the second course provided for—
by way of a wise reserve—by Article 7 of the Mandate: the course
of resort to international justice. If the Mandate Agreement is
carefully read, it is easy to see that Articles 6 and 7 relate to two
different and successive aspects or stages in the exercise of the Man-
date, which, far from being incompatible, are natural complements
to each other. Mutual understanding between the League and the
Mandatory is presumed as to the way in which the trust of the
Mandate is to be performed (Articles 2-6), but in the event of a
disagreement arising between the States Members which offers
no prospect of settlement, resort to judicial decision will re-establish
the harmonious functionning of the sytsem. There is nothing strange

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in the abandonment of administrative negotiations when the
nature of the dispute makes the intervention of a tribunal preferable.

The Respondent has contended that the failure of the admini-
strative negotiation carried out within the United Nations was
caused by the restrictions placed upon the powers granted to the
negotiating organs by the General Assembly. These organs—says
the Respondent—-did not enjoy the freedom of action necessary
to decide upon the various formulae put forward in the debates by
seeking approximations in a flexible way or by possibly agreeing
to partial concessions. It seems to me, however, that this restriction
of powers was inevitable and still more necessary. The General
Assembly could only delegate its powers on the condition that it
indicated as bases for negotiation the fundamental rules of the
Mandate institution and of the Mandate Agreement for South
West Africa. Anything beyond this compass would have been
contrary to the spirit of the Charter and would have exceeded the
powers of the Assembly. That was the very reason why the negotia-
tions by the Good Offices Committee were not successful when the
General Assembly rejected the partition formula which it had
proposed. |

These reasons, in my opinion, justify the overruling of the
Fourth Preliminary Objection.

Conclusion

For the reasons expressed above and also on the relevant grounds
referred to in that part of the Advisory Opinion of 11 July 1950
which coincides with the reasoning which I have just set out, I come.
to the conclusion:

That the two Preliminary Objections (First and Second) raised
by the Respondent to the jurisdiction of the Court are not well-
founded in law; ,

That the two other Objections (Third and Fourth) which relate
to the admissibility of the Applications of Liberia and Ethiopia,
must likewise be held to be ill-founded;

That, consequently, the Court has jurisdiction to proceed to
adjudication upon the merits of the applications.

(Signed) J. L. BUSTAMANTE R.

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