387

SEPARATE OPINION OF JUDGE JESSUP

T agree with the decision of the Court that it has jurisdiction
to hear the present cases on the merits and that the four preliminary
objections are not well founded and should be dismissed. Since,
however, the Opinion of the Court does not embrace all the questions
of fact and of law which I find essential to reaching the decision, I
find it my duty to deliver this separate Opinion.

The nature of the international obligations assumed by a Man-
datory in accepting a Mandate, and specifically, the nature of those
obligations assumed by the Respondent in accepting the Mandate
for South West Africa, is a focal point in the decision of the juris-
dictional issues in these cases. In my view, it is not possible to
understand the nature of those obligations without a thorough
appreciation of the principal facts prefacing and attending the
finalization of the Mandate. These facts, as now available in pub-
lished official records, have hitherto not been adequately presented.
Accordingly, without repeating much that is familiar in the history
of the Mandates, I shall summarize and comment on those facts
which seem to me to be essential to an analysis of the obligations
of the Mandatory for South West Africa.

On 7 May 1910, at a meeting of the Council of Four (President
Wilson, Mr. Lloyd George, M. Clemenceau and Sr. Orlando), Mr.
Lloyd George submitted a proposal for the allocation of the Man-
dates, including the allocation of the Mandate for South West
Africa to Great Britain acting on behalf of the Union of South
Africa. At the afternoon meeting on the same day, a “decision”
was taken approving these proposals and the decision was published.

On 27 June the Council of Four, with Japan also represented,
had before it “forms” of the Mandates which had been prepared
by Lord Milner and submitted by Mr. Lloyd George. The details
were not discussed and after some general observations the Council
decided to set up a Commission under Lord Milner to prepare
drafts of the Mandates.

On the following day the Milner Commission met in Paris
and Lord Milner submitted a draft to serve as a pattern for the
C Mandates. This draft contained no provision for reference to
the Permanent Court of International Justice.

On 5 July a joint British-French draft to serve as a pattern for
B Mandates was laid before the Milner Commission. This draft also
contained no provision for reference to the International Court.

On 8 July the British-French draft was taken as a basis for
discussion but the United States representative submitted an

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alternative draft for B Mandates. This draft contained two para-
graphs concerning references to the Permanent Court of Inter-
national Justice. These provisions read as follows (translation) :

“Article 15

If a dispute should arise between the Members of the League of
Nations relating to the interpretation or the application of the
present Convention and if this dispute cannot be settled by ne-
gotiation, it will be referred to the Permanent Court of International
Justice which is to be established by the League of Nations.

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

It will be noted that the italicized words in the first paragraph
indicate that either the Mandatory or another Member of the
League, could invoke the jurisdiction of the Court. This provision
was subsequently altered.

The representative of France and Lord Milner both said that
they had no objection to the principle of recourse to the inter-
national Court but they both objected to the provision in the second —
paragraph which would allow individuals to invoke the jurisdiction
of the Court. The representative of the United States then agreed
to a modification suggested by Lord Robert Cecil by which the
second paragraph would read as follows:

“The Members of the League of Nations may likewise, on behalf
of their subjects or citizens, bring claims for infractions of their
rights...”

It was also agreed to delete the references to the specific Articles
in this same second paragraph. These amendments were agreed to
in the meeting of 9 July.

On the following day, 10 July, a draft to serve as a pattern
for C Mandates was approved with a paragraph concerning reference
to the Court which was identical with the first paragraph of the
United States draft which has just been discussed. At the same
meeting the Commission also approved a draft to serve as a pattern
for B Mandates and this draft contained the two paragraphs as
proposed by the United States but with the amendments which
have been indicated.

On 15 July Lord Milner sent these drafts for B and C Mandates
to the Secretary-General of the Peace Conference in Paris and on
5 August he and Colonel House announced at a session of the
Commission in London that President Wilson and Mr. Lloyd George
had approved both drafts. In the Commission, the French re-

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presentative then made a reservation concerning the recruitment
of troops in B Mandates and the Japanese representative made a
reservation concerning the Open Door in C Mandates. The Com-
mission decided to send the drafts formally to the Council of the
Principal Allied and Associated Powers in Paris. The Commission
on Mandates did not meet again after this date but the texts of
the drafts for B and C Mandates which they had approved were
sent to the legal experts of the Drafting Committee of the Peace
Conference, who, without discussing the substance of the drafts,
put them into the form of formal conventions.

On 24 December 1919, the Council of Heads of Delegations in
Paris considered the ‘‘drafts of Conventions relative to Mandates”
including one concerning the allocation to the British Empire
(Union of South Africa) for German South West Africa.

It was explained to the Council that these drafts were the texts
adopted by the Commission in London which had been put into
treaty form by the legal experts of the Drafting Committee. In the
draft Convention for South West Africa one finds in the listing of
the High Contracting Parties that His Majesty the King of the
United Kingdom, etc., is listed twice, the second time “for and on
behalf of His Union of South Africa”. Article 8 of this draft Con-
vention reads as follows:

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

In this draft Convention, the provisions which later appear in the
Preamble of the Mandate were stated somewhat differently. The .
first paragraph of the Preamble of the draft Convention contains a
provision identical—except for a few stylistic differences—with the
first paragraph of the final text of the Preamble. Paragraph 2 is a
little different but refers to Article 22 of the Covenant and the
desire of the Principal Allied and Associated Powers to confer a
Mandate upon His Britannic Majesty ‘‘to be exercised on His behalf
by the Government of the Union of South Africa”, and then recites
that they have decided to conclude a Convention. Article 1 of the
draft Convention then says the Powers “‘confer’’ the Mandate and
says that the Mandate will be exercised by the Union of South
Africa in conformity with Article 22 of the Covenant. By Article 2,
His Britannic Majesty accepts the Mandate “‘and will execute the
same on behalf of the League of Nations, and in accordance with
the following provisions”. This is the basis for paragraph 3 of the
Preamble of the final text.

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390 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

At the end of the draft Convention is a sentence:

“Confirmed by the Council of the League of Nations the... day of.”

At this time the United States Commission to the Peace Confer-
ence had already returned to the United States but the United
States was represented in the Council of Heads of Delegations. With
reference to the drafts of the ‘“‘C’’ Mandates, it was decided that
discussion would be resumed after the Japanese delegate had
received instructions from his government concerning the “Open
Door” reservation. Japan did not disagree with the provision for
recourse to the Court.

The foregoing events all took place before the Treaty of Ver-
sailles, of which the Covenant of the League of Nations was a part,
entered into force on 10 January 1920. On that date, the Mandate
for South West Africa had not been perfected. The allocation of the
Mandate to the Union of South Africa (represented by Great Britain)
had been agreed. Final agreement on the terms of the Mandate
awaited the final approval of Japan, but they had been drawn up
with Article 22 of the Covenant in mind. The Mandatory was party
to these agreements. The draft Convention contemplated confir-
mation by the Council of the League of Nations as the final link and
it is with the Council of the League that the final stages of perfecting
the Mandate are connected.

At this point the Mandatory was bound by an international ob-
ligation to France, Great Britain, Italy and Japan, to accept the
Mandate for South West: Africa, to exercise it according to the
agreed terms, and to submit to the jurisdiction of the Permanent
Court disputes with other Members of the League concerning the
interpretation or application of the Mandate. This agreement was
subject to two conditions subsequent: (1) approval by Japan;
(2) confirmation by the Council of the League. Both of these
conditions were subsequently fulfilled and the international agree-
ment, with certain agreed amendments, was then perfected.

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

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adopting the Hymans Report, the Council of the League approved,
inter alta, the following conclusions:

1. There was no disagreement that the right to allocate the
Mandates belonged to the Principal Allied and Associated Powers in
whose favour Germany had renounced its rights in its overseas
possessions.

2. Although the Mandatory was thus appointed by the Principal
Powers it was to govern in the name of the League. “It logically
follows that the legal title held by the Mandatory Power must be
a double one: one conferred by the Principal Powers and the other
conferred by the League of Nations.”

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

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

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

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

On 26 October the Council adopted a second report by M.
Hymans on the question of Mandates.

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This Report stated:

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

Beyond doubt, sé is in every way desirable that the Principal
Powers should be able to arrive at a complete understanding and to
submit agreements to the League. Fatling this very desirable agreement
however, the Covenant provides for the intervention of the Council
with a view to determining the degree of authority, of control or of
administration to be exercised by the Mandatories.”’

… “We sincerely hope therefore that before the end of the
Assembly the Principal Powers will have succeeded in settling by
common agreement the terms of the Mandates which they wish to
submit to the Council.” (Italics supplied.)

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

There is further evidence of the contemporary understanding of
the respective roles of the Principal Powers and of the League
Council in establishing the Mandates. The Prime Minister of Great
Britain said in the House of Commons on 26 July 1920 (when asked
“Do the Great Powers submit Mandates to the League of Nations?
Is submission the real attitude?’’): “The Great Powers are on the
League of Nations, and they are only submitting to themselves.”
Again, on 8 November 1920 when asked whether “the right to
determine the terms of the Mandate reposes in the Members of the
League”, the Prime Minister answered in the negative and later
stated: “The Great Powers are represented, of course, on the Council
of the League, and these Mandates have to be submitted to the
Council of the League. It will require the unanimous consent of
the Council of the League to reject them... Nothing can be don:
except by a unanimous decision of the Council. That means that
nothing can be done without the consent of the Powers concerned.”
The question was then put: “Is it not definitely laid down by the
Treaty of Versailles that the degree of authority and control to
be exercised by any Mandatory in a mandatory area is a matter
for the League of Nations, Council or Assembly, to decide?”
The Prime Minister replied: “Yes, subject to the conditions which
T have already indicated.” (Italics supplied.)

At the private session of the Council on 4 August 1920, M.
Bourgeois (France) pointed out that:
“the Principal Allied and Associated Powers, at the moment when

the Covenant was drafted, had, in using the phrase ‘Members of the
League’, in effect intended to refer to themselves.”’

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393 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

In a discussion on the Mandate drafts in the Council of the
League on 10 December 1920, the Representative of Italy said
that, strictly speaking, by the terms of Article 22 (8) of the Covenant,
no drafts of A Mandates had been brought to the notice of the Coun-
cil since they had not yet been communicated to Italy “and,
consequently, there was, as yet, no agreement in regard to the
matter between the Principal Allied Powers”. He referred to the
“necessity of an agreement between the Principal Allied Powers,
as provided for by Article 22”. (Italics supplied.)

On 10 December 1920 the Council of the League “declared afresh
that it was its duty to see that the rules laid down in Article 22
were carried out and especially that it was competent to approve
the terms of the Mandates and, in the last resort, if need be, to
draw up the terms’.

These salient facts, against the familiar background of the origins
of the Mandate System, lead to the following conclusions:

1. The decision of the Council of Four on 7 May, 1910, allocating
the Mandate for South West Africa to the Union of South Africa,
constituted the first link in what may be called the chain of title.
This ‘‘decision” was an international agreement between France,
Great Britain, Italy, the United States and the Union of South
Africa (represented by Great Britain} which had dispositive effect.
Japan subsequently concurred in or adhered to this agreement.

2. Since the allocation of a Mandate was not equivalent to a
cession of territory and did not transfer sovereignty to the Manda-
tory, it remained to determine what would be the rights and duties
of the Mandatory in its capacity as such. Article 22 of the Covenant,
by which all the States concerned were soon to be bound, indicated
the general nature of these rights and duties.

3. By 24 December 1919 agreement had been reached among
France, Great Britain, Italy and Japan, on the one hand, and
the Union of South Africa represented by Great Britain, on the
other hand, on the terms of the Mandate, except for one unsettled
reservation of Japan. The agreed terms which were unaffected
by the Japanese reservation included a provision for the compulsory
jurisdiction of the Permanent Court of International Justice.

4. By December 1920 it had become clear that the United
States had disassociated itself from the Peace Treaty settlements
and from the League of Nations, which fact altered the form, but
not the fact of agreement on the terms of the Mandate for South
West Africa.

This was the situation when on 14 December 1920, Mr. Balfour
handed in to the Council of the League, drafts of the C Mandates.
Among them, the draft entitled

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394 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)
“MANDATE FOR GERMAN SOUTH WEST AFRICA

Submitted for Approval”

was no longer cast in the form of a formal convention such as
had been discussed by the Council of Heads of Delegations at
Paris, but in the form of a resolution of the Council of the League
of Nations. This draft began with a preamble of three paragraphs
substantially identical with the first three paraggraphs of the
Mandate as ultimately in force. These three paragraphs are then
followed by one line which reads:

“Hereby [the Council] approves the terms of the Mandate as
follows:”’ |

The text of Article 7 of this draft is:

“The consent of the Council of the League of Nations is required
for any modification of the terms of the present mandate, provided
that in the case of any modification proposed by the Mandatory
such consent may be given by a majority.

If any dispute whatever should arise between the Members of the
League of Nations relating to the interpretation or the application
of these provisions which cannot be settled by negotiation, this
dispute shall be submitted to the Permanent Court of International
justice provided for by Article 14 of the Covenant of the League of

ations.”

The Council immediately referred this draft to the Secretariat
to be studied by the experts. As appears from subsequent reports
by Viscount Ishii, the Secretariat was concerned to make sure that
the proposed terms conformed to Article 22 of the Covenant and
that the role of the Council of the League should be appropriately
recognized. As stated by Viscount Ishii, what is now the fourth
paragraph of the preamble was inserted

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

Along the same lines, the one line following the preamble in the
Balfour draft was replaced by the phrase which appears in the
final text, namely:

“Confirming the said Mandate, defines its terms as follows:”

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

“Whereas, by the aforementioned Article 22, paragraph 8, it is
provided that the degree of authority, control or administration to

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be exercised by the Mandatory not having been previously agreed
upon by the Members of the League, shall be explicitly defined by
the Council of the League of Nations:”

It will be seen that this text slightly paraphrases the text of
paragraph 8 of Article 22 of the Covenant. On the other hand,
the French text follows the text of paragraph 8 of Article 22
more. closely and, in doing so, brings out more clearly the condi-
tion subject to which the Council was authorized to act.

The French text reads as follows:

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

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

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

This whole fourth paragraph of the Preamble is omitted entirely
from the four Mandates for Togo and the Cameroons which had a
different development. At the meeting of the Council of Four
on 7 May 1919, when the decision was taken to allocate the Man-
dates, it was agreed that the British and French Governments
would make a joint recommendation to the League as to the future
of the former colgnies of Togo and the Cameroons; at this point
there was no decision to place these territories under Mandate.
But the Joint Recommendation of the two Governments to the
League on 17 December 1920 proposed a division of the two colo-
nies between France and Great Britain and, in accordance with

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the spirit of Article 22, that they be placed under Mandates. The
two Governments accordingly sent to the Council four draft Man-
dates which are similar to the other B Mandates. The Joint Recom-
mendation says that the two Governments “venture to hope that
when the Council has taken note of them it will consider that the
drafts have been prepared in conformity with the principles laid
down in the said Article 22, and will approve them accordingly’.

Appended to the drafts were signed agreements on the delimi-
tation of the frontiers; the fact that these agreements were signed
and that there was no explicit signed statement saying “The
undersigned agree to the terms of the Mandates which we are jointly
recommending”’, is of no juridical consequence. When the Council of
the League approved these four drafts on 1 August 1922, it did not
insert the new fourth paragraph of the Preamble although it did
insert the final one-line phrase. If it had been the understanding
that under Article 22 of the Covenant the Council actually had to
define all the terms of the Mandates in the absence of prior agree-
ment by all the Members of the League, and if the fourth paragraph
of the Preamble as it appears, inter alia, in the Mandate for South
West Africa, is to be so understood, it would be impossible to explain
why these four Mandates were subject to a different rule. The second
paragraph of the Preamble of these four Mandates recites. that the
Principal Allied and Associated Powers had “‘agreed” that France
and Great Britain should make a joint recommendation concerning
these former colonies and this was evidently treated as an agreement
of the Powers in advance.to accept whatever recommendation the
two governments might make. This conclusion is borne out by the
Treaties of 13 February 1923 between the United States and France
concerning the rights of the former in French Cameroons and Togo;
they refer to the agreement of the four Powers upon these Mandates,
just as the Treaty of 11 February 1922 between the United States
and Japan concerning rights in the islands under Japanese Mandate
recites the prior agreement of the same four Powers on the allocation
of the Mandate and on its terms.

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

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

The amendments made in Article 7 of the Balfour draft of the C
Mandates are significant. As Viscount Ishii explained, the first para-
graph of Article 7 was amended so as to eliminate the idea of a
majority vote since the Council had in other connections decided
that it should always act by unanimity.

&r
397 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

The second paragraph of Article 7 was recast in what became its
final form so that its opening phrases read:

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

On the other hand, the text in the Balfour draft said: “If any
dispute whatever should arise between the Members of the League of
Nations...”’, which was the language of the text approved in the
Milner Commission in July, 1010.

Viscount Ishii explained that this change was inspired by the
thought that the Members of the League, other than the Mandatory
“could not be forced against their will to submit their difficulties to
the Permanent Court”.

The various amendments thus suggested by the League Secretar-
iat were accepted by the Council. The representative of Japan made
a declaration that Japan had no objection to the C Mandates and the
Council accordingly approved them. In so far as the Mandate for
South West Africa is concerned, this approval is registered in the
familiar resolution of 17 December 1920. This may be called the
second link in the chain of title.

It may be remarked that this resolution was adopted by the
Council on the day following that on which the Protocol of Signature
of the Statute of the Permanent Court of International Justice
was opened for signature and was then signed, inter alia, on behalf
of all of the governments which subsequently became Mandatories,
although the signature for the Union of South Africa was under
reserve of the approval of the Government of that country. |

It is apparent that the Council of the League did not “define”
the terms of the Mandate in the sense of originating a definition or
specification thereof; it “defined” them only in the sense of making
them “definite’’ through the Council’s stamp of approval.on the
drafts which had been agreed upon by the Principal Powers.

The actual course of events was correctly summarized on 21 Feb-
ruary 1927 by the Secretary of State for the Colonies, responding
to a question in the House of Commons:

“Under Article 119 of the Treaty of Versailles the former German
territories in Africa were surrendered to the Principal Allied and
Associated Powers who, in accordance with Article 22 of the Treaty
agreed that the Mandates to administer these territories should be
conferred upon the Government concerned; and proposed the terms
in which the Mandates should be formulated. Having arranged the
allocation and delimitation of these territories as between them-
selves, the Governments concerned agreed to accept their respective
Mandates and to exercise them on behalf of the League of Nations on

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the proposed terms, ‘and the Mandates were then confirmed by the
Council of the League... ”” (Italics supplied.)

The Council, as is apparent from the fourth paragraph of the Pre-
amble of its resolution of 17 December 1920, purported to take its
action under the authority of paragraph 8 of Article 22 of the Cov-
enant. But Article 7 of the Mandate, with its compromissory clause,
was outside the scope of paragraph 8 which relates only to the
“degree of authority, control, or administration to be exercised by
the Mandatory’. Indeed Article 22 of the Covenant contains no
reference to the Permanent Court. Article 7 at least—whatever one
may say of the other Articles—stems from the agreement of the
Principal Powers and the Mandatory and the resolution of the
Council of the League of 17 December 1920 records the agreement.

The Mandate, as an international institution of the type contem-
plated in Article 22 of the Covenant, was a novelty in international
law and it is not surprising that the agreements which were framed
to give life to the institution present complex aspects. It is the task
of the Court, not to construct some ideal legal pattern which might
have been followed, but to appreciate the facts. Ex factis ius oritur.
It is not irrelevant to recall that legal difficulties were encountered
also in the establishment of the Trusteeship System, which, under
Chapter XIT of the Charter of the United Nations, was designed to
supersede the Mandates System under the League of Nations. Just
as the text of Article 22 of the Covenant seemed on its face to
envisage an agreement by all Members of the League, so Article 79
of the Charter provides that “The terms of trusteeship for each
territory ... shall be agreed upon by the States directly concerned ...”’
The fact that it was impossible to reach agreement on the identifi-
cation of “States directly concerned” is part of a familiar story. The
General Assembly accordingly approved by resolution the terms of
trusteeships without there having been strict compliance with this
requirement of Article 79 of the Charter. The reality of the existence
of “trusteeship agreements’, however, can scarcely be questioned.

In the light of this record, it is possible to describe the multifarious
international obligations assumed by the Respondent as Mandatory
for South West Africa.

1. The Mandatory had obligations under the Covenant of the
League of Nations. As a Member of the League, the Mandatory, as
soon as it accepted a Mandate, became bound by those provisions of
Article 22 of the Covenant which specify or indicate the nature
of a Mandatory’s obligation. Paragraph 7 of Article 22, for example,
imposed the specific obligation to render an annual report; it is
possible to consider Article 6 of the Council’s resolution of December
17, 1920, as merely giving specificity to this obligation. Paragraphs 1
and 2 of Article 22, supplemented by the general obligations under
Article 23, indicate the general nature of the obligations flowing
from the “sacred trust”, and again it is possible to consider Articles 2

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through 5 of the resolution of 17 December 1920 as filling in the
precise details of these obligations. But in both these instances, the-
“details” were subjects of further agreement outside the Covenant.

The obligations owed by a Mandatory under Article 22 of the
Covenant, like those obligations owed by all Members of the League
under such Articles as 10 and 16 of the Covenant, were owed to
the co-contractors, that is to all other Members of the League.
I do not find it necessary to consider at this point whether these
particular obligations, under the Covenant, were owed also to the
collectivity, that is to the League of Nations itself. I shall discuss
later the position of the inhabitants of the Mandated territory.

2. The Mandatory had obligations under the agreements which
it made with the Principal Powers, namely, France, Great Britain,
Italy and Japan. These agreements are recorded in the resolution
of the Council of the League of 17 December 1920.

The first agreement recorded in the second paragraph of the Pre-
amble of the resolution must be recalled, although the Mandatory
may not be considered an original party to it. It reads:

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

This agreement was the decision of the Council of Four of 7 May
1919. The Preamble is here accurate in referring to the “Principal
Allied and Associated Powers” since the United States, through
President Wilson, participated in making this basic agreement.
But, as the United States subsequently pointed out, it was incorrect
to use this term in regard to further agreements in which the
United States did not officially participate. I shall hereafter refer
to the “Principal Powers” as including France, Great Britain, Italy
and Japan. The Union of South Africa became a party to this
agreement by the acceptance to be noted in a moment.

The second agreement recorded in the same paragraph is recorded
in these words:

“. and have proposed that the Mandate should be formulated in
the following terms;’’

Subject to the correction just noted concerning the United States
which was the ‘Associated’ Power, this means that the Principal
Powers had “proposed” the “following terms” for the Mandate.

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400 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

Obviously four Powers could not make a proposal jointly without
having agreed upon it, and we know from the historical record that
they had agreed. Again, it may be said that the Union of South
Africa became a party to this agreement by the acceptance which
can now be noted.

The third agreement is recorded in the third paragraph of the
Preamble of the resolution of 17 December 1920, as follows:

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

This is really a double agreement since it first records the accept-
ance by the Mandatory of the Mandate as allocated in the first
agreement of the Principal Allied and Associated Powers, and then
records the acceptance of the second agreement of the Principal
Powers by which the terms of the Mandate were formulated. It is
clear that the words “following provisions’ in this paragraph of the
Preamble are identical in meaning with the words “following terms”
in the preceding paragraph. As already stated, these two acceptances
may be considered as equivalent to accéssions by the Union of South
Africa to two agreements of the Principal Powers, that is to the
agreement to allocate to the Union (through His Britannic Majesty)
the Mandate for South West Africa, and to the agreement upon the
terms according to which the Mandate was to be exercised.

It may be noted that the term ‘‘acceptance”, in accordance with
familiar modern practice, is used here in the sense in which the
term is explained along with ‘‘accession”, ‘‘approval’ and other
terms in the 1962 Report of the United Nations International Law
Commission; according to Article 1/d) of the Draft Articles on the
Law of Treaties, these terms ‘‘mean in each case the act so named
whereby a State establishes on the international plane its consent
to be bound by a treaty’’. The use of the term “‘treaty”’ is considered
hereinafter.

It has already been explained how the Council of the League pro-
ceeded by its resolution of 17 December 1920 to confirm and to
make definite the terms of the Mandate which had already been
agreed upon by the Mandatory and the Principal Powers. The
various textual amendments included in the Council resolution
being approved by the Council, acting by unanimity, were thereby
approved by Great Britain speaking in its double capacity. It
could be said, therefore, that the fourth agreement is the entire body
of the Council’s resolution and it is in this sense that the resolution
has generally been treated as being “the Mandate’, which has
usually been considered—as it was considered by all parties to these
cases—to be a treaty to which the Mandatory was a party. This
point will be dealt with later.

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401 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

But the amended text which was adopted for the second para-
graph of Article 7 of the resolution is cast in such a form that it is
justifiable to deal with it separately, perhaps as a fijth agreement.
The paragraphs reads:

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

In contrast to the paragraphs of the Preamble which used the
past tense to refer to agreements already concluded, this second
paragraph of Article 7 is cast in the present tense. Its general form
is in the style of declarations to be made under Article 36 (2) of the
Statute of the Permanent Court of International Justice, by which
States agree to accept the compulsory jurisdiction of the Court;
the provision for reciprocity, while usual, is neither obligatory nor
universal. But it is also similar to a compromissory clause of the
type frequently found in multilateral conventions.

The change in the compromissory clause of Article 7, which was
agreed to by the Powers and the Mandatory, did not modify the
obligation of the Mandatory to submit to the jurisdiction of the
Court, an obligation to which the Mandatory had agreed throughout
the drafting stages from the mid-summer of 1919, and which was
included in the third and fifth agreements recorded in the Council’s
resolution of 17 December 1920. The change in this clause merely
altered the legal situation relative to obligations of other Members
of the League, on whom (as it was thought) the earlier drafts would
have imposed an obligation to submit to the jurisdiction of the
Court without their even having an opportunity to accept or refuse.

*
* *

The word “mandate” has been used in many different senses—
to indicate an institution, an instrument, a treaty or agreement,
a grant of authority and a territory. In whatever way one identifies
the “mandate’’, it can scarcely be doubted that in accepting the
mandate, the Mandatory incurred international obligations of a
legal character and that it voluntarily agreed to incur those obliga-
tions; the obligations were certainly not imposed upon the Manda-
tory, which, under Article 22 (2) of the Covenant, was a State
“willing to accept” them. This being the case, the next point to
consider is whether the agreement to incur these international
obligations of a legal character is to be characterized as a “‘treaty
or convention”. The term “treaty or convention” is used in Arti-
cles 36 and 37 of the Statute, but since in recent times there has

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402 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

been no justification for distinguishing in law between a treaty and
a convention, only the term ‘‘treaty”” need be used here for purposes
of analysis.

Here again semantic difficulties are encountered, since, as <¢
Rapporteur of the International Law Commission has pointed out,
in all discussions in the law of treaties there is apt to be confusior
between the instrument in which an agreement is embodied and
the agreement itself. As far back as 1925, a sub-committee of
the League of Nations Committee on the Codification of Interna-
tional Law, referred to ‘‘the prevailing anarchy as regards termino-
logy’’.in the law of treaties. The notion that there is a clear and
ordinary meaning of the word ‘‘treaty” is a mirage. The fundamental
question is whether a State has given a promise or undertaking
from which flow international legal rights and duties. This point
of view has been generally accepted in modern codifications of the
law of treaties, such as those of the United Nations International
Law Commission, the Harvard Research in International Law
and the American Law Institute.

In view of what the International Law Commission in its 1962
Report calls the “extraordinarily rich and varied nomenclature’, it
is common ground that the label attached to a treaty is of no legal
significance and that the legal consequences of informal agreements
expressed in a variety of forms may be identical with those re-
sulting from the most formal instruments. (Cf. Lissitzyn, “Efforts
to Codify or Restate the Law of Treaties”, 62 Columbia Law Review
1166 (1962).) In preparing draft codes on the law of treaties, rap-
porteurs have at times pointed out that the draft has for conven-
ience, been limited to apply, for example, only to treaties em-
bodied in written instruments. But the 1962 Report of the Inter-
national Law Commission, like that of 1959, emphasizes that the
fact that the articles do not apply to international agreements not in
written form “is not to deny the legal force of oral agreements
under international law’’. The 1959 Report explained: “There may
be an international agreement, but there may be no instrument
embodying it—i.e., it is an oral agreement, made for example,
between heads of States or Governments...”’ (1959 Yearbook of the
International Law Commission, Vol. II, p. 94.)

The recent (1962) draft of the American Law Institute uses the
expression “international agreement’’ in place of ‘“treaty” and
defines it as ‘an agreement between states or international or-
ganizations by which there is manifested an intention to create,
change or define relationships under international law’. The
comment says “there is no rule of international law which prevents
an oral agreement from constituting a binding international
agreement”.

It is also generally recognized that there may be unilateral agree-
ments, meaning agreements arising out of unilateral acts in which
only one party is promisor and may well be the only party bound.

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403 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

Unilateral contracts of the same character are recognized in some
municipal legal systems. In the United States, for instance: ‘In
the case of a unilateral contract, there is only one promisor; and
the legal result is that he is the only party who is under an en-
forceable legal duty. The other party to this contract is the one to
whom the promise is made, and he is the only one in whom the
contract creates an enforceable legal right.” The assent of the
promisee is not always required. (Corbin on Contracts (1950), Vol. I,
sec. 21.) The doctrine of “consideration”, which plays so large
a part in Anglo-American contract law, has not been taken over
into the international law of treaties.

Professor Brierly, as Rapporteur on the Law of Treaties for the
International Law Commission, declared:

“International legal rights and obligations may of course arise
otherwise than by agreement between a plurality of persons. They
may thus arise by unilateral act, or as a result of an act to which
the beneficiary of rights created by such act is a stranger... A
possible explanation of the binding force of so-called unilateral
declarations creative of rights against the declarant is to be found in
the theory of presumed consent of the beneficiary.”’ (1950 Yearbook
of the International Law Commission, Vol. II, p. 227. See also the
report by Lauterpacht as Rapporteur in 1953, t6¢d., Vol. IT, pp. 107
ff.)

The points of view just summarized are soundly based on inter-
national practice and on the jurisprudence of the international
courts. A few examples of unilateral and informal agreements may
be cited.

In the Free Zones case the Permanent Court of International
Justice considered that a unilateral manifesto issued by a domestic
Sardinian organ had the character of a treaty stipulation (A/B
No. 46 (1932), p. 145).

In Interpretation of the Statute of the Memel Territory (A/B No. 49),
Lithuania claimed that the Statute of the Memel Territory was a
Lithuanian enactment—but it was annexed to the Convention.
Sir William Malkin, arguing for the United Kingdom (Series C
No. 59, pp. 176-178), stated that, “whatever the form of the
Statute might be, its true juridical nature was that of a treaty and
‘that any question of interpretation which may arise on the terms

_of those instruments [the Convention and the Statute] is to be
determined, not by analogies drawn from other constitutions or
constitutional laws, but by applying the ordinary methods of
treaty interpretation’, a view which the court accepted”. (As
summarized, apparently in agreement, by McNair, Law of Treaties
(1961), p. 12.)

In the case of Railway Traffic, Lithuania and Poland, the Perma-
nent Court of International Justice held that the participation of

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the two States in the adoption of a resolution of the Council of the
League of Nations constituted an “engagement” (A/B No. 42
(1931), p. 116). |

The Albanian Declaration to the Council of the League of Nations
on October 2, 1921, which was registered with the League and
published in IX League of Nations Treaty Series, page 173, was
dealt with by the Permanent Court of International Justice as
a treaty in the matter of Minority Schools in Albania (A/B No. 64
(1935)). There were other similar ‘‘declarations’’, e.g. that of Lithua-
nia which entered into force without any “ratification” on 11 De-
cember 1923 and was registered by the Secretariat of the League
(22 League of Nations, Treaty Series, 393). Like the Minorities
Treaties, these declarations contained clauses accepting the juris-
diction of the Permanent Court in case of ‘any difference of opin-
ion as to questions of law or fact arising out of these articles’.
On the conclusion that many such unilateral declarations have the
force of treaties, see 1953 Yearbook of the International Law Com-
mission, Vol. IT, pp. 98 ff.

An unusual item is No. 319 in Vol. 20 of the United Nations
Treaty Series entitled “Communiqué on the Moscow Conference of
the three Foreign Ministers signed at Moscow on 27 December 1945,
and Report of the Meeting of the Ministers of Foreign Affairs of the
Union of Soviet Socialist Republics, the United States of America
and the United Kingdom, dated 26 December 1945, together con-
stituting an Agreement relating to the preparation of peace treaties
and to certain other problems”. [Italics supplied.] The communiqué
recites: ‘At the meeting of the three Foreign Ministers, discussions
took place on an informal and exploratory basis and agreement was
reached on the following questions...” The communiqué is signed
by Messrs. Byrnes, Bevin and Molotov. The agreement covered
such matters as the decision concerning the participants in signing
certain peace treaties, the establishment of the Far Eastern Commis-
sion, of the Allied Council for Japan, and of the Commission for
Korea, as well as other matters. It is interesting to compare this type
of “agreement” which was registered in the United Nations Treaty
Series, with the ‘‘agreements’’ recorded in the League Council’s
resolution of December 17, 1920. The question of registration will
be considered later, but it may be noted that:

“The procés-verbal*of an international conference inay form an
adequate record of an informal engagement agreement. The United
Kingdom has been advised in substantially the following terms:

There is no reason based on its informality why such a record
should not constitute adequate evidence of an international
engagement. International law prescribes no form for international

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405 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

engagements. There is no legal distinction between formal and
informal engagements. If an agreement is intended by the parties
to be binding, to affect their future relations, then the question
of the form it takes is irrelevant to the question of its existence.
What matters is the intention of the parties, and that intention
may be embodied in a treaty or convention or protocol or even a
declaration contained in the minutes of a conference.’’ [Italics
supplied:] (McNair, Law of Treaties (1961), pp. 14-15.)

It is of no juridical consequence that the final agreements re-
corded in the preamble to the resolution of the League Council
of 17 December 1920, frequently referred to as “the Mandate’,
have not been located in any published separate signed instrument.
If the fact of agreement is established, the identification of a docu-
ment or instrument embodying the agreement is not required by
any rule of international law. International law contains no rule
comparable to a Statute of Frauds in some municipal legal systems.
The well-known Ihlen Declaration dealt with by the Permanent
Court in the case of Eastern Greenland became an engagement when
it was uttered; the minute in which it was subsequently recorded
was an instrument which proved the fact and the content of the
engagement but these might have been proved by other evidence.
As Judge Anzilotti said in his Dissenting Opinion (A/B No. 53, p.91):

“There does not seem to be any rule of international law requiring
that agreements of this kind must necessarily be in writing, in order
to be valid.”

Nothing in the form—or formlessness—or novelty of the Mandate,
militates against its being considered a ‘‘treaty”.

It has already been shown that the historical record and the
recital in the Council’s resolution of 17 December 1920 prove the
existence of the agreement of the Mandatory for South West Africa
with the four Principal Allied Powers. Both the Permanent Court
and this Court have considered that a Mandatory was bound by
an international agreement, embodied in an article of the Man-
dates, to accept the jurisdiction of the International Court. Specifi-
cally, the Permanent Court in Mavrommatis (Series A, No. 2,
1924) considered that the compromissory clause in the Palestine
Mandate was a treaty or convention upon which its jurisdiction
could be founded in accordance with the requirements of Article 36
of the Statute. With reference to Article 26 of the Palestine Mandate
which is the counterpart of Article 7 of the South West Africa
Mandate, the Court said:

“The parties in the present case agree that Article 26 of the
Mandate falls within the category of ‘matters specially provided for

go
406 8. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

in Treaties and Conventions in force’ under the terms of Article 36
of the Statute and the British Government does not dispute the fact
that proceedings have been duly initiated in accordance with Arti-
cle 40 of the Statute.”’

It must not escape emphasis that the British Government, one
of the principal authors of the terms of the Mandates, while chal-
lenging the jurisdiction of the Court, agreed that such jurisdiction
could not be challenged on the theory that the Mandate was not a
“treaty or convention” within the meaning of Article 36 of the
Statute.

In the 1950 Advisory Opinion on the International Status of
South West Africa, there was no dissent from the view that Article 7
of the Mandate was a treaty conferring jurisdiction on this Court.
In his Separate Opinion (at p. 158), Judge Sir Arnold McNair
cited the Mavrommatis Judgment of the Permanent Court in as-
serting “‘there can be no doubt that the Mandate, which embodies
international obligations, belongs to the category of treaty or
convention...”’.

After a decade had passed, Lord McNair evidently found no
reason to change his view. In the 1961 edition of his Law of Treaties,
page 639, he says: “A Mandate is essentially a treaty containing
many dispositive provisions, and it is not surprising that the Court
should have pronounced in favour of its survival.” In footnote 3,
he adds: “The author begs to refer to his Separate Opinion in
I.C.]. Reports 1950, at p. 146, stating the legal character of a
mandate and the reasons for which it seemed to him that the
mandate survived the events of 1945-1946 and continued to exist.”

The more or less contemporary understanding that a mandate
was a ‘‘treaty or convention” within the meaning of Article 36 of
the Statute is further supported by an examination of Series E,
No. 1 of the Publications of the Permanent Court of International
Justice, published in 1925. Chapter III is entitled ‘The Court’s
Jurisdiction”, and at page 129, one reads:

“As already stated, the Court’s jurisdiction embraces all matters
specially provided for in treaties and conventions in force. A special
publication, issued by the Court and completed and brought up to
date annually, enumerates these treaties and conventions and gives
extracts from relevant portions. The instruments in question may
be divided into several categories:

A. Peace Treaties...
B. Clauses concerning the protection of Minorities...

C. Mandates...

The Mandatory States are seven in number. The following list
gives the name of the mandatory, the mandated territory and the
date and place of the conclusion of the compact.”

The final italicized word again shows the flexibility of terminology
in this branch of law.

9x
407 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

Does the Charter of the United Nations reveal a nice choice of
terms to describe international agreements? In interpreting the -
Charter, including the Statute of this Court, and in interpreting
the terminology of other treaties, it is important to ascertain
whether the draftsmen have been discriminating in the selection of
terms or whether varying terms have been used without conscious
intention to ascribe to the term any particular meaning or any
limitation upon its meaning. This is especially true of an instru-
ment like the Charter of the United Nations, the various Chap-
ters of which were drafted by separate commissions and commit-
tees, even though the Conference also had an elaborate co-ordinating
machinery.

Examining the Charter of the United Nations, we find in Arti-
cle 102 the expression “every treaty and every international agree-
ment”. The comparable article of the Covenant of the League of
Nations, namely Article 18, used the expression “treaty or inter-
national engagement”. The report of Committee IV/2 of the United
Nations Conference which prepared the Charter, said that the word
“agreement” in Article 102 should be interpreted to include certain
unilateral engagements of an international character. (XIII
UNCIO 705.)

Article 103 of the Charter uses merely the expression “‘internation-
al agreement” but there appears to be no reason to interpret this
Article as excluding any treaty, convention, accord, or other type
of international engagement or undertaking. In Article 80 (1) the
Charter refers to “international instruments to which Members ...
may ... be parties”. This clearly includes many kinds of interna-
tional agreements.

In the Statute of the Court, Article 36, paragraph 1, refers to
“treaties and conventions”. But in paragraph 2 (4) of the same
Article and in Article 35 (2), only the term “treaty” is used. It
could not possibly be argued that Article 35 (2) and Article 36,
paragraph 2 (a), intended to exclude “‘conventions”’ assuming that
one was able to distinguish between a “convention” and a “‘treaty”’.

In Article 37 the term used again is ‘‘treaty or convention”, but
in Article 38 1 (a) the text refers merely to ‘international conven-
tions”. Surely it cannot be asserted that this last provision was
designed to exclude “‘treaties’’, ‘“‘agreements’’, “accords”, etc. The
Report of the U.N. International Law Commission, 3 July 1962
(A/CN. 4/148, p. 15, para. 7) emphasizes the impossibility of giving
a Narrow meaning to the terms in Articles 36 (2) and 38 (x) and that
no clear distinction can be made between the two. It is also true
that on the basis of the terms used, there is no ground for assigning
any particular restricted meaning to the expression “treaty or
convention’ in Article 36 or Article 37.

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408 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

In various alternate pleadings, Respondent considers Article 7
separately and apart from the “Mandate Agreement as a whole”,
and this approach can be justified as has already been indicated
by treating this article as a ‘‘fifth agreement”. For purposes of the
jurisdictional issue now before the Court, Article 7 is the key; if
the consent to the jurisdiction of the Court which was embodied in
Article 7 has not been vitiated and if it is applicable to this Court
and to these Applicants, this Court has jurisdiction to hear the
instant cases on the merits, since, as will be shown, the third and
fourth objections to the jurisdiction are untenable.

The principle of separability is now accepted in the law of treaties,
especially with reference to multipartite treaties, although the older
classical writers tended to reject it. It is a doctrine which exists in
municipal contract law (sometimes under the label of “divisibility’’)
and in the law governing the construction of statutes.

In treaty law the principle is evidenced in connection with the
effect of war on treaties, and by the admission of reservations to
treaties, since reservations essentially constitute the separation of
a part of a treaty from the whole in order to exempt the contracting
party from obligation under the separated part. Numerous examples
of separability in the practice of States are to be found in such
monographs as Tobin, Termination of Multipartite Treaties (1933);
Stephens, Revisions of the Treaty of Versailles (1939); Hoyt, The
Unanimity Rule in the Revision of Treaties ; a Reexamination (1959).
The Permanent Court of International Justice recognized the separa-
bility principle in the Free Zones and in The Wimbledon cases.
From the standpoint of international law, part of the Mandate
Treaty may have remained in force although other parts did not.

Given the generally agreed proposition that the Mandate as an
institution survived, and the principle of separability being ad-
mitted, the question which, if any, of the provisions of the Mandate
did not survive cannot be tested by an inquiry whether this or that
provision was “‘essential’’ to the operation of the Mandate, or
whether it was merely “important” or “useful” or, indeed, ‘“‘in-
consequential”; there is no objective standard which can be used
to make such an appraisal. The question which can be answered
is whether some provision or part of a provision became inoperable
and if so whether that inoperable portion was so essential to the
operation of the provision in question that the whole provision
falls. The provision which is particularly in question is the reference
in Article 7 of the Mandate to “another Member of the League
of Nations”.

In order to analyze the legal position of other ‘‘Members of the
League of Nations” in connection with the Mandates which use this

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409 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

descriptive label in the compromissory article, such as Article 7 of
the Mandate for South West Africa, and in various other articles,
such as Article 5 of that same Mandate, it is not necessary, in my
opinion, to assert that the Members of the League, presumably
represented by the Council of the League, were “parties” to the
Mandate agreements. They were certainly not ‘parties’ to the
agreements between the Mandatories and the four Principal Powers,
and if the Council Resolution of 17 December 1920 is considered as
the treaty, the facts of history indicate they were not ‘‘parties”’
thereto although the League of Nations itself may be considered a
“party”. The Members of the League were, however, third State
beneficiaries. The inhabitants of the territories were also beneficiaries
but the present issue before the Court does not require a considera-
tion of the nature of the rights of ‘‘any peoples” as mentioned in
Article 80 (1) of the Charter.

It is possible to agree with the Permanent Court of International
Justice that “it cannot be lightly presumed that stipulations fa-
vourable to a third State have been adopted with the object of
creating an actual right in its favour’ (Free Zones, Series A/B,
No. 46, p. 147), but still to decide, as that Court did, in the case
then before it, that actual rights were created—in this case, in
favour of Members of the League by the Mandates. The Peace
settlements at the end of World War I contain various comparable
examples such as Article 380 of the Treaty of Versailles relative to
the Kiel Canal, and other provisions concerning the use of water-
ways of international concern. (Cf. Lauterpacht, The Development
of International Law by the International Court (1958), sec. 96.)

Clearly the provision concerning missionaries in Article 5 of
the Mandate for South West Africa was a stipulation pour autrui
and the other Members of the League of Nations were beneficiaries
thereof. The provision reads as follows:

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

As Sir Gerald Fitzmaurice, when Rapporteur on the Law of Treaties
for the United Nations International Law Commission, said in the
course of his excellent analysis of the pacta tertirs rule:

“It is not a condition ... that the third State should be specified
eo nomine, provided it is clear from the context or surrounding
circumstances what State is intended, or that a group or class of

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410 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP’

States is intended of which the claiming State is a member.” (1960
Yearbook of the I. L. C., Vol. II, p. 81.)

The rights of these beneficiaries could be protected by contentious
proceedings in the Permanent Court of International Justice be-
cause the compromissory clause in Article 7 was also a stipulatio,
pour autrui of which League Members were beneficiaries. The
“missionary clause’ in Article 5 is the type of clause which Lord
Finlay discussed in connection with the Palestine Mandate as
being appropriate for submission to the Court. It supplies in this
case a test for the survival of certain rights, thus contributing to
a decision on the principle of such survival.

In the report of Committee IV/2 on Article 102 of the Charter,
to which reference has already been made, it is implied that a
third State which is the beneficiary of a unilateral engagement of
an international character, must ‘‘accept”’ the engagement in order
to make it binding. This intimation may well have been based upon
an incidental comment of the Permanent Court in its discussion of
the pacta tertiis rule in the Free Zones case. Lauterpacht’s analysis
of this judgment of the Permanent Court in which he concludes
the Court did not consider formal acceptance to be requisite, is
sound. (Zbid., pp. 306 ff.) But if general acceptance by Members of
the League in advance of specific invocation were considered
necessary, one can find it in the Assembly’s acceptance of the C
Mandates and in the continuing conduct of both the Council and
the Assembly with reference to the administration of the C Mandates.

As already quoted, Brierly, as Rapporteur for the International
Law Commission, suggested an explanation of the binding force
of unilateral declarations creative of rights against the declarant, in
a theory of “‘presumed consent of the beneficiary’. As also quoted
above, Corbin notes that in American contract law, the assent
of the promisee is not always required. A stipulation pour autrui
may also be considered an offer which remains outstanding until
withdrawn or terminated in some other way. Since, as will be shown
to be true in these cases, the offer contained in Article 7 was still
outstanding on 4 November 1960, the filing of the Applications on
that date was an acceptance.

Most of these explanations of unilateral engagements are based
upon some municipal system of contract law and reveal an anxiety
to fit international law into a national suit of legal clothes. For this
purpose there is at times laboured insistence upon identifying the
parties. It may be for this reason that this Court has analyzed
declarations under the Optional Clause as acts by which a “State
becomes a Party to the system of the Optional Clause” and speaks
of the “contractual relation between the Parties”. (Rights of Passage

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over Indian Territory, Preliminary Objections, I.C.J. Reports 1957,
p. 145. Italics inserted.) The Permanent Court of International
Justice, however, had pointed out that a declaration under the
Optional Clause is “a unilateral act” (Phosphates case, Series A/B,
No. 74, p. 23), and, as Lauterpacht has reminded, “Privity of
contract is not a general principle of law”. International law, not
being a formalistic system, holds States legally bound by their
undertakings in a variety of circumstances and does not need either
to insist or to deny that the beneficiaries are ‘‘parties’” to the
undertakings.

The situation in regard to the rights of Members of the League
as third States beneficiaries, may be more clearly seen in its basic
elements if one considers (without any wish to consider the merits
and solely by way of illustration) one of the B Mandates, such as
that held by Belgium for Ruanda-Urundi. Under Article 7 of this
Mandate, Belgium agreed to the so-called Open Door principle
which, inter alia, forbade Belgium to discriminate in favour of her
own nationals and against the nationals of other ‘Members of the
League’”’ in the granting of concessions. It is not apparent why it
would be reasonable to say that while it would have been a viola-
tion of Belgium’s contractual obligation so to discriminate against
a French citizen in the matter of a concession on 18 April 1946,
the day before the dissolution of the League, Belgium would have
been free so to discriminate on 20 April 1946. On the contrary, if
Belgium had so discriminated on 20 April, France could properly
(if diplomatic negotiations failed to result in a settlement) have
seized the Court of this dispute concerning the interpretation or
application of the Mandate, relying on Article 13 of the Mandate
for Ruanda-Urundi (which contains a compromissory clause iden-
tical with that in Article 7 of the Mandate for South West Africa),
and on Article 37 of the Statute to which both Belgium and France
are parties.

In the Mandate for South West Africa the Open Door Clause
was not included, but there was the provision in Article 5, already
quoted, requiring the free admission of missionaries who were
nationals of a “Member of the League”. This Article embodies the
same provisions as those in Article 8 of the Belgian Mandate. Is it
to be assumed, following the same line of reasoning as before,
that in this case, the Mandatory would have been free (so far as
the obligation in the Mandate was concerned and assuming for the
moment the non-applicability of any general rule of international
law concerning the rights of aliens) to exclude or to oust a French
missionary from South West Africa on 20 April 1946? There is no
justification for such a conclusion as a matter of common sense

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and reasonable construction unless again one espouses the rejected.
view that on the dissolution of the League nothing whatever
was left of the Mandate or of the rights and obligations appertaining
thereto, and unless one ignores the Mandatory’s undertaking given
at the final session of the League Assembly which will be discussed
shortly. ‘

But, it is argued, the right of the French missionary to enter
into or to reside in South West Africa depended, according to the
terms of Article 5 of the Mandate, upon the missionary being a
national of a “Member of the League’; after the dissolution of the
League there were no Members and hence no nationals of Members.
Accordingly, it would be said, the French missionary did lose his
tight to enter or reside at the moment when the League was dis-
solved.

Such an argument assumes that the reference to ‘another
Member of the League” was not, as Lord McNair concluded in his
Separate Opinion in 1950 (at pp. 158-159), descriptive of a class
or category, but that it posed an imperative condition. The most
reasonable interpretation is that the specification of beneficiaries of
various provisions in all the Mandates in terms of “Members of
the League” was the natural result of the fact that the Mandates
were drawn up as part of the whole League system, a system which
it was fondly hoped in 1919 would become universal. In drawing
up agreements within the framework of this system, it was natural
to refer to other Members of the League. Article 22 of the Covenant, .
in accordance with which the Mandates were established, was part of
the Treaties of Peace ending a great war with Germany and her allies.
Itis reasonable to suppose that the drafters may have had in mind
a specification which would, immediately after the War, deny
privileges in the mandated areas to Germans or other ex-enemies.
This interpretation is borne out by the incident of the rejection of
the complaint in 1925 by Germany before becoming a Member of
the League. (Permanent Mandates Commission, Minutes 7th Session
(1925), p. 54.) But the quality of League Membership as compared
subsequently to the quality of a friendly former co-belligerent such
as the United States, was not, and was not intended to be, an
essential quality or a perpetually imperative condition. The loss by
the French missionary in 1946 of the quality of being a national
of a ‘Member of the League” did not introduce any element of
frustration which would impede the performance of the Mandatory’s
obligation to permit his entry and residence. Granted the reasons

‘which have been suggested why there should have been granted
special rights to the Members in 1919, such reasons would not be
applicable in 1946; cessante ratione legis, cessat ipsa lex. If the
Mandatory claimed the right to limit the privileges to missionaries
who were nationals of States which were Members of the League

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413 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

when the League came to an end, the claim would be reasonable
and it would avoid any charge that there was imposed on the
Mandatory an obligation more onerous than that which it had
originally assumed.

Whether the presence of missionaries in the territory in question
was ‘‘essential” to the discharge of the “‘sacred trust” can scarcely
be determined by some objective test, subjectively conceived; per-
haps an answer could be given by taking evidence, but I leave
that aside. ‘

If it be said that only such elements of the Mandates survived
as related to the welfare, etc., of the inhabitants, then the rights
of missionaries would be included in that group of provisions. The
rights of missionaries in the South West African Mandate are set
out in Article 5, which deals in general with freedom of conscience
and worship. Surely the Mandatory should not be privileged to
interfere with the religious life of the inhabitants by expelling mis-
sionaries on April 20 1946, on the technical ground that they no
longer qualified as nationals of a Member of the League. If this
stipulation pour autrui survived the dissolution of the League des-
pite the reference to a descriptive qualification which was no longer
applicable, other such stipulations could also have survived.

What then of Article 7—and for the purpose of the present
analysis one refers only to paragraph 2 of that Article? Again one
looks in vain for some established objective test to determine.
whether in 1919 and 1920 possible reference to the Court was con-
sidered “essential’’ to the operation of the Mandate. One knows
that the provision was inserted in all the drafts from the outset
without any opposition to the fundamental principle, though there
were some drafting problems to which attention has been called.
In Mavrommatis, Lord Finlay said (at page 43) “it was highly
necessary that a Tribunal should be provided for the settlement
of such disputes” as he thought might well arise under the Palestine
Mandate; he might have felt differently about C Mandates, but
the Court clause was in A, B and C Mandates as in all the minorities
treaties. Was there frustration, impossibility of performance
after 19 April 1946? Did Article 7 become inoperable? In contrast
to Article 6, where the organ—namely the Council of the League—
disappeared, in Article 7 a new organ had been substituted for
the old by the operation of Article 37 of the Statute of the Court
to which of course the Mandatory was a party. That transformation
took place on the birth of the United Nations, and there can be
no doubt.that Article 7 provided for reference to this Court during
that period from the birth of the United Nations to the death of the
League.

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414 8, W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

On the dissolution of the League it is true there were no longer
States which were “Members of the League”, but did this fact
frustrate performance? It has been shown that the disappearance
of the quality of Member did not make Article 5 inoperable and
the case is even stronger here since under Article 7 the Mandatory
is not the actor, is not the operator, so to speak. In so far as concerns
the administration or operation of the Mandate, the disappearance
of the Council of the League might be said to create a measure of
frustration in regard to the required acts of the Mandatory in
filing reports. In regard to Article 7, however, the new Court was
available. In contrast to the United Nations system it will be recal-
led that-the Permanent Court was not a part or organ of the League
and the winding up of the Court was separate from the dissolution of
the League. For the successful operation of the Mandate during the
life of the League, the quality of being a Member of the League
was not necessary to the operation of Article 7; as already shown
there were quite other reasons for referring to the Members.
After all, these ‘Members of the League” were not just concepts,
“ghosts seen in the law, elusive to the grasp’. They were actual
States or self-governing entities whose names could be recited.
The names of the original Members were listed in the Annex to
the Covenant, but it was not a fixed group; it fluctated as new
Members were admitted or as old Members terminated their mem-
berships. Yet at any given moment—as for example the moment
of the dissolution of the League—the Mandatory would always
have been able to draw up, by names, a list of the States included
in the descriptive term “Member of the League”.

It must also be remembered that the Mandatory was a ‘‘Man-
datory of the League of Nations’. But according to the accepted
view, the termination of the League did not terminate the Mandate
as an institution which means that the Mandatory also, and spe-
cifically the Union of South Africa, gua Mandatory, must have
survived the dissolution of the League although its mandator
was no longer in existence.

After the dissolution of the League, how could the Mandatory
assert frustration or impossibility of performance in regard to
accepting the jurisdiction of the Court as he had agreed to do,
in accepting Article 7 originally; in accepting the transformation
effected by Article 37; and by promising in the final session of the
League Assembly that he would “continue to administer the ter-
ritory scrupulously in accordance with the obligations of the
Mandate”’?

It has now been pointed out with regard to Respondent’s ac-
ceptance of the jurisdiction of the Permanent Court of International
Justice, that there are no technical rules of international law which

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require that this acceptance be poured into some particular mould
known as “treaty or convention”. It has further been shown that:
these terms as used in Articles 36 and 37 of the Statute cannot
be considered generally to have any narrow, technical, restricted
meaning. It is now necessary to see whether, when the Charter
provided that in certain cases the International Court of Justice
should be substituted for the Permanent Court of International
Justice, it was intended that those provisions should be interpreted
in a strict and technical sense.

There is no basis for such an assumption. It is familiar history
that two of the central problems involved in adjusting the interna-
tional judicial machinery which had existed under the League
of Nations, to the United Nations Organization, were the questions
whether the old Court should be continued or whether there should
be a new Court, and whether the Court should be given general
compulsory jurisdiction. In the final decision to establish a new
Court, it was agreed that there should be as much continuity with
the old as possible and to emphasize the close relationship, the
Charter recites in Article 92 that the new Statute “is based upon”
the old Statute. “In a sense”, says the Report of Committee IV/I
of the San Francisco Conference, “... the new Court may be looked
upon as the successor to the old Court which is replaced. The
succession will be explicitly contemplated in some of the provisions
of the new Statute, notably in Article 36, paragraph 4 [later num-
bered 5], and Article 37.” (13 UNCIO 384.)

It was clearly the intention in the drafting of the Statute of the
International Court of Justice to preserve for the new Court just
as much as possible of the jurisdiction which appertained to the
old Court. For this purpose, Article 36 (5) provided for the transfer
of the obligations assumed by States which made declarations
under Article 36 of the old Statute, and Article 37 provided for a
similar transfer where a ‘‘treaty or convention” had contained a pro-
vision for the jurisdiction of the Permanent Court. As is said in
the Joint Dissenting Opinion in Aerial Incident (1959), page 166
and page 171: “It was for the purpose of preserving for the new
Court the compulsory jurisdiction which had been conferred upon
the old Court and whose period of validity had not expired that
paragraph 5 was adopted and inserted in Article 36 of the present
Statute and that Article 37 was introduced... Article 37 provides
the consensual link with regard to the succession of the Interna-
tional Court of Justice to the jurisdiction of ... the Permanent
Court...” It would not be in accordance with the spirit and intent
of Articles 36 (5) and 37 to interpret them in such a way as to
leave a gap through which would fall to the ground such an agree-
ment as is recorded in Article 7 of the Mandate.

In applying the foregoing analysis to the instant cases, it must be
reemphasized that this analysis is made with aid of aspects of the

100
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Mandate which are used solely for the purpose of illustration and
without wishing to enter upon the merits. Having this approach in
mind, it can be said that the Applicants, Ethiopia and Liberia,
had, on 18 April 1946, certain rights in South West Africa for and
on behalf of missionaries who were their nationals, that these
rights and their continuance did not depend upon the question
whether or not these missionaries continued to have the quality
of being nationals of “Members of the League of Nations”; and
that accordingly these rights survived the dissolution of the League.
If a missionary who was a national of one of the Applicants had
been denied admission, and if negotiations over the resulting
dispute between the Applicant and the Mandatory failed, Applicant
would have been entitled to seize this Court by virtue of Article 7
of the Mandate and Article 37 of the Statute. This is true because
the Mandate agreement was, in 1945, and was on 4 Novem-
ber 1960, a “‘treaty in force” between the Mandatory and the four
Principal Allied Powers. The contractual arrangement between
the Mandatory and the four Principal Powers was not terminated
by the dissolution of the League and therefore the rights and
obligations of the four Powers at any rate were not affected by
the dissolution of the League, and the rights vested in third
States beneficiaries, which category includes the Applicants, persist
as long as this treaty is in force. The only theory on which it can
be said that this treaty is no longer in force would be one posited
on the total elimination of the Mandate in every respect. Such a
conclusion would eliminate not only the obligations but also the
tights of the Mandatory and it could not tolerate the generally
accepted thesis that the Mandate continued as an institution.

Are the conclusions which have up to this point been arrived
at, vitiated by a consideration of the case of a State such as Brazil
which gave up its League membership during the active life of
the League? I think not. While the League was operating, it was
natural for the Members to intend that membership, which entailed
some very definite obligations—actual in the matter of financial
contributions and potential in the matter of political responsibilities
such as might arise under Article 16 of the Covenant—should
entail also some corresponding advantages. Obviously the territorial
guarantees under Article 10 of the Covenant were reciprocal and
Brazil—to continue the example—lost its right to invoke that
guarantee. Similarly in regard to economic rights in the mandated
areas, a Mandatory might well have said: “My freedom is limited,
I am restricted by the obligations which I have assumed in the
Mandate and I shall continue to bear these burdens in respect of
the large numbers of States which are Members of the League.
But since you have chosen to leave the League, I am not obliged
to continue to subject myself to an additional burden on your

ror
417 S. W. AFRICA! CASES (SEP. OPIN. JUDGE JESSUP)

behalf.”” The view set out above, following Sir Arnold McNair,
that the term ‘‘Members of the League” was descriptive and not
conditional, does not mean that upon assuming the Mandate for
South West Africa the Union of South Africa was obligated to
grant certain privileges to missionaries, nationals of Germany.
Nor does it mean that after the resignation of Brazil, the Union
was bound to grant those privileges to nationals of Brazil. But
the situation was very different wheg by common consent in 1946
the Mandatory joined with the other States which were then
Members of the League in dissolving the League because the United
Nations had been established in its place. To assert that this dissolu-
tion immediately freed the Mandatory of the obligations in the
Mandate such as those relating to missionaries, in regard to which
the disappearance of the League introduced no iota of frustration
or impossibility of performance, but that at the same time the
Mandatory retained rights of authority, control and administration,
cannot, in the language of the Court’s 1950 Opinion, “‘be justified”’.
What is said concerning the ‘missionary clause” applies with
equal force to the provisions in the compromissory clause of Ar-
ticle 7 which provided that disputes concerning these surviving
rights might be submitted to the Court. If the Mandate survived as an
institution, the Mandatory was still subject to certain obligations
and those obligations were owed to the States which were Members
of the League at the moment when by common consent the League
was dissolved.

The foregoing reasoning stands by itself, but it is supported by
another aspect of the situation.

In the meeting of the League Assembly on g April 1946, the
representative of the Union of South Africa made a statement in
part as follows (Preliminary Objections, pp. 38-39):

“Since the last League meeting, new circumstances have arisen
obliging the mandatory Powers to take into review the existing
arrangements for the administration of their mandates... it is
the intention of the Union Government, at the forthcoming session
of the United Nations General Assembly in New York, to formulate
its case for according South West Africa a status under which it
would be internationally recognised as an integral part of the
Union... In the meantime the Union will continue to administer the
territory scrupulously in accordance with the obligations of the mandate,
for the advancement and promotion of the interests of the inhabit-
ants, as she has done during the past six years when meetings of the
Mandates Commission could not be held.

The ‘disappearance of those organs of the League concerned
with the supervision of mandates, primarily the Mandates Commis-

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sion and the League Council, will necessarily preclude complete
compliance with the letter of the mandate. The Union Government
will nevertheless regard the dissolution of the League as in no way
diminishing its obligations under the mandate which it will continue
to discharge with the full and proper appreciation of its responsibil-
ities until such time as other arrangements are agreed upon con-
cerning the future status of the territory.” (Italics supplied.)

This was an undertaking of an international character by which
the Union of South Africa assumed an international obligation.
The Permanent Court held in the Free Zones case that binding
force attached to a declaration made in the Court by the Agent
of a State (A/B No. 46, at p. 170). The Permanent Court held in
Eastern Greenland that a declaration by a Foreign Minister to the
Ambassador of another State created a binding international obliga-
tion (A/B No. 53 (1953), at p. 71).

Surely a formal pledge of the kind just quoted made by the
representative of a State to the Assembly of the League also con-
stituted a binding international obligation. As quoted above
from McNair, Law of Treaties, ‘‘a declaration contained in the
minutes of a conference” may embody a binding international
engagement.

There was reliance on this and other similar declarations as
revealed by the fourth paragraph of the League Assembly’s resolu-
tion of 18 April, in which the Assembly:

“4. Takes note of the expressed intentions of the members of the
League now administering territories under mandate to continue to
administer them for the well-being and development of the peoples
concerned in accordance with the obligations contained in the respective
mandates until other arrangements have been agreed between the
United Nations and the respective mandatory powers.’’ (Preliminary
Objections, p. 43. Italics supplied.)

Now one of the “obligations” under the Mandate which the
Union of South Africa thus newly agreed to respect after the dissolu-
tion of the League, was the obligation under Article 7 to submit
to the jurisdiction of the Court; by accepting the Charter, it had
already agreed to substitute the International Court of Justice
for the Permanent Court. In its pledge to the Assembly, the Union
of South Africa pointed out that the disappearance of certain organs
of the League would prevent full compliance with the letter of the
Mandate. Since the Permanent Court had by agreement (Article 37
of the Statute) been replaced by the International Court, the dis-
appearance of the Permanent Court in no way prevented full
compliance with the letter of Article 7, so far as concern the basic
consent to the jurisdiction of the Court.

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419 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

Did the Union of South Africa indicate that with regard to
the obligation under Article 7 it intended to rely on the fact that
in some ten days there would be no State which could call itself a
“Member of the League of Nations”? It did not; it conl4 hardly
be claimed that “Members” of the League were “organs” of the
League, which disappeared. It would be a complete denial of the
bona fides of the Government of the Union of South Africa to assert
that the pledge, in sweeping terms, “to regard the dissolution of the
League as in no way diminishing its obligations under the Mandate’,
was given tongue-in-cheek ; as if saying that we still agree to submit
to the jurisdiction of the Court only because we know that in a
few days there will be no State which will be entitled to call us to
account for the fulfilment of that obligation. The Court cannot thus
impugn the good faith of the Respondent. If one attributed such
an unspoken mental reservation to the Union of South Africa, it
would be necessary to assume also, in accordance with the preceding
analysis of the obligations under the Mandate, that when the Union
Government undertook to continue ‘‘to administer the territory
scrupulously in accordance with the obligations of the Mandate”
it did not intend to respect its obligation to permit the entry and
residence of missionaries because none of them could any longer
claim to be a national of a Member of the League.

It must also be recalled, as stated above, that a stzpulation pour
autrui may be considered an offer which remains outstanding until
withdrawn or terminated in some other way. The declaration of the
Respondent of 9 April 1946 certainly negatives the idea of a with-
drawal and may, indeed, properly be considered a renewal of the
offer, specifically extending it beyond the dissolution of the League.
Nothing further intervened which could have had the legal effect
of terminating the offer before the Applications in these cases
were filed on 4 November 1960.

The binding undertaking given by the Union of South Africa on
9 April 1946 must be taken as a confirmation and an acceptance of
the interpretation given above, namely that the obligation, inter
alia, under Article 7, paragraph 2, continued to be applicable to
and for the benefit of those States which at the moment of the
dissolution of the League of Nations were Members thereof. It is
of no consequence that there was no express mention of the Court.
Consent in advance is just effective as consent during judicial pro-
ceedings. The Permanent Court of International Justice (in Upper
Stlesia( Minority Schools), Series A. No. 15 (1928), pages 24-25), said
“there seems to be no doubt that the consent of a State to the sub-
mission of a dispute to the Court may not only result from an
express declaration, but may also be inferred from acts conclusively
establishing it”. And, again, “there is no rule laying down that
consent must take the form of an express declaration rather than

104
420 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

that of acts conclusively establishing it”. His review of these and
other holdings by the Permanent: Court led Judge Sir Hersch
Lauterpacht to conclude that ‘‘the Court will not subject acceptance
of its jurisdiction to requirements of form likely to deny effect to
the consent of the parties, however expressed; it will not permit a
party to withdraw consent—which, in good faith, must be assumed
to have actually been given—on the ground that it has not been
expressed in accordance with alleged stringent requirements of
the Statute. There. are no such requirements.” (The Development
of International Law by the International Court (1958), p. 106.)

Because of the last-minute amendment of Respondent’s sub-
missions, a few words should be said about the registration of
treaties.

The suggestion has been made that perhaps the Mandate for
South West Africa was never “in force” because the agreement
with the Four Powers or the Council resolution of 17 December
1920, was not formally registered and published in the League
of Nations Treaty Series. Aside from the patent absurdity of flying
in the face of history and the practice of States and of international
organizations for some 40 years, an analysis of Article 18 of the
Covenant and of applications of that Article forbids a strict literal
interpretation of the Article’s last sentence which reads: “No such
treaty or international engagement shall be binding until so reg-
istered.”

There is abundant literature on the subject of registration under
Article 18 and various theories as to the legal effect of the last
sentence have been supported by different writers. There is no
general support for a strict literal interpretation. The Third As-
sembly of the League of Nations said that “time and experience
alone” would provide the material needed for a precise interpreta-
tion. Confronted with a comparable problem, the Legal Committee
of the United Nations General Assembly in 1946 recognized that
“experience and practice’ would aid “in giving definition to the
terms of the Charter” as set forth in Article 102.

The history of the provision which is well-known, and numerous
reports and discussions, show that the main objective of Article 18
of the Covenant was publicity—it was a provision against secret
treaties. At least two types of recording were provided for in the
regulations adopted by the Council of the League in 1920 for the
operation of Article 18. In addition to the usual registration and
publication in the Treaty Series, Article 11 of the Council’s Memo-
randum, approved 19 May 1920, points out that there are or may
in the future be various treaties or conventions requiring special
treatment. The principal example was afforded by Article 405 of
the Constitution of the International Labour Organisation which
provided that copies of Draft Conventions (under which actual

105
421 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

legal obligations arose) were to be “deposited” with the Secretary-
General of the League who would communicate a certified copy
to each Member. Subsequently vatifications of such Draft Conven-
tions were “registered” by the Secretary-General of the League
(see P.C.I.J., Series A/B, No. 50).

There were numerous instances of agreements which were con-
sidered legally effective but which were not régistered. Some exam-
ples may be given.

Although it is the practice of the United Nations to register
the Declarations made by States upon becoming Members of the
Organization, such Declarations concerning Membership in the
League of Nations were not registered; unquestionably, however,
they resulted in the assumption of rights and obligations under
the Covenant. For example, according to the records of the Fifteenth
Assembly of the League (pp. 74-77 of the Plenary Meetings) the
Minister of Afghanistan in London telegraphed to the Secretary-
General that on instructions of his Government he asked that
Afghanistan be admitted as a Member of the League. His telegram
said:

“The Government of Afghanistan is prepared to accept the con-
ditions laid down in Article 1 of the Covenant and to carry out all
obligations involved in membership of the League.”

The League Assembly by resolution admitted Afghanistan to
Membership.

Special agreements submitting cases to the Permanent Court
were not always registered but the Court did not hesitate to base
its jurisdiction upon such unregistered agreements. A good example
is afforded by the formal agreement between France and Switzer-
land of which ratifications were exchanged on 21 March 1928,
concerning the submission of the Free Zones case to the Permanent
Court. In the Mavrommatis case the jurisdiction of the Court was
based partly on the Mandate, which was not registered, and partly
on the concession protocol of the Treaty of Lausanne which was
not registered until after the Court’s decision.

It seems unnecessary to multiply authorities to support a well-
established conclusion.

In any event, the regulations for registration adopted by the
Council were measures of administrative convenience and did
not even purport to be comprehensive interpretations of the scope
and effect of Article 18. The recording of an engagement in a public
resolution of the Council of the League fulfilled the essential
publicity purposes of Article 18 of the Covenant. The deposit of
the Mandate instrument for German South West Africa in the
archives of the League and the forwarding of certified copies by

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422 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

the Secretary-General to various States indicate a practice quite
similar to that prescribed for Draft Conventions of the International
Labour Organisation.

The references in this Mandate instrument to the basic agree-
ments on the Mandates and their terms, also satisfied, in respect to
those agreements, the purposes of Article 18. (Cf. Schachter ‘‘The
development of international law through the legal opinions of the
United Nations Secretariat”, XXV Br. Yr. Bk. Int. L. (1948),
p. gr at 127 ff; Hudson, The Permanent Court of International
Justice 1920-1942 (1943), PP. 435, 439, 636 and authorities cited.)

FA
* *

For purposes of illustration and analysis, the foregoing discussion
has dealt principally with what may be called “tangible” rights
such as those subsumed under the “‘open door’ label or those
specifically dealing with the entry and residence of missionaries. It
remains to be determined whether States who were beneficiaries of
the undertakings given by the Mandatory in the Mandate Agreement
obtained other rights in connection with the operation of the
Mandate as an institution or status, or in connection with the
operation of the Mandate as a treaty. This inquiry bears upon
Respondent’s contention that a “dispute’’ within the meaning of
Article 7 of the Mandate must involve a conflict concerning a legal
right or interest and not differences of opinion unconnected with
legal rights or interests. Without pausing to consider the basic
validity of this contention, I shall analyze the nature of the rights
or interests involved in the alleged ‘dispute’ between Applicants
and Respondent.

It may be noted at once that Applicants assert that there is a
“dispute” with reference to Articles 2, 4, 6 and 7 of the Mandate
(Memorials, p. 62). This assertion does not refer to Article 5 which, as
noted above, is the only article in this particular Mandate which
contains a specification concerning the rights of nationals of States
other than the Mandatory. Hypothetically, provisions referring to
the “inhabitants” of the territory could refer to nationals of such
States if they happened to inhabit the territory, but no such situa-
tion has been presented here.

The jurisdictional provision in Article 7 can be invoked only if
there is a “dispute”. If there is a ‘‘dispute” it must further be shown
that it has two characteristics: first, it must be a dispute which
cannot be settled by negotiation; and second, it must relate to the
interpretation or application of the Mandate. Attention may be paid
first to the meaning of ‘dispute’. The identification of the other
party to the ‘‘dispute’’ will also be considered.

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423 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

To take the narrow definition which has respectable support, a
“dispute” in the context of a compromissory clause is one which
can be settled by the application of principles of law. But as the
Permanent Court said in Serbian Loans (Series A, Nos. 20/21, at p. 20),
Article 38 of the Statute cannot be regarded as excluding the possi-
bility of the Court’s dealing with disputes which do not require
the application of international law, seeing that the Statute itself
expressly provides for this possibility. The new words inserted in
Article 38 of the Statute of this Court do not affect the validity of
the Permanent Court’s observation. The four sub-paragraphs of
Article 36 (2) of the Statute of the Court give a more complete
description but they have a particular purpose and do not constitute
a comprehensive definition. The Permanent Court of International
Justice, quoting the first paragraph of Article 36, commented: “The
Court’s jurisdiction depends on the will of the Parties. The Court
is always competent once the latter have accepted its jurisdiction,
since there is no dispute which States entitled to appear before the
Court cannot refer to it.” (Upper Silesia ( Minority Schools), Series A,
No. I5, at p. 22.) It is of course apparent from common practice in
drafting treaties for pacific settlement and compromissory clauses,
as well as from sub-paragraph (c) of paragraph 2 of Article 36 of
the Statute, that a “dispute” in the sense here intended may relate
to a question of fact. The “facts the existence of which the Court
has to establish may be of any kind” said the Permanent Court in
Serbian Loans (p. 19). For this analysis, one may admit that an
argument between two governments as to whether their armaments
were designed for offence or for defence, would not be a “dispute”.
But if the challenge to the existence of a “dispute’’ in its legal
sense is raised in a preliminary objection to the jurisdiction of a
tribunal, the question is how deeply the Court must probe into the
facts and law in order to determine whether there is a “‘dispute’’.

Suppose, for example, State A alleges in a diplomatic note to
State B that State B has violated a commercial treaty of 1880
between A and B. B in reply affirms that the treaty is no longer in
force. After futile negotiations, A submits the case to an inter-
national court in accordance with the terms of a treaty for pacific
settlement concluded by B with A. This treaty for pacific settle-
ment contains the ordinary provision that the parties agree
that disputes concerning legal rights may be submitted to an inter-
national court by either party. B contends that the court has no
jurisdiction since there is no “dispute” within the meaning of the
treaty for pacific settlement because A bases its contention on a
treaty which is no longer in force. The adjudication of the question
whether the treaty is in force and therefore whether A’s case rested
upon a legal right, is a question for the merits and not a question

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to be settled on a plea to the jurisdiction. B in effect admits there
is a “dispute” but asserts that A’s substantive position is unsound.
It may be possible to imagine a case where the allegation of a legal
right was so obviously absurd and frivolous that the Court would
dismiss the application on a plea to the jurisdiction, but such a
situation would be rare. In any event, it is not the situation in the
instant cases.

In the instant cases, it is helpful to look first at the second charac-
teristic of the “dispute” which has been noted above, i.e. that it
must relate to the interpretation or the application of the provisions
of the Mandate. I do not see how it can be seriously contended that
this condition is not fulfilled since it is sufficient basis for the juris-
diction of the Court if any of Applicants’ contentions are so related.
On the face of those contentions, and before the Court has examined
them on their merits, the Court must find that, assuming there is
a ‘‘dispute’’, it is one which relates to the interpretation or applica-
tion of the provisions of the Mandate.

In Interpretation of Péace Treaties, this Court had to deal with
the meaning of the term “‘dispute” in a treaty clause providing for
decision by a special procedure. The Court said (7.C.J. Reports 1950,
at pp. 74-75):

‘‘Whether there exists an international dispute is a matter for
objective determination. The mere denial of the existence of a
dispute does not prove its non-existence... There has thus arisen a
situation in which the two sides hold clearly opposite views concern-
ing the question of the performance or non-performance of certain
treaty obligations. Confronted with such a situation, the Court
must conclude that international disputes have arisen... Inasmuch
as the disputes relate to the question of the performance or non-
performance of the obligations provided in the articles dealing with
human rights and fundamental freedoms, they are clearly disputes
concerning the interpretation or execution of the Peace Treaties.”’

However, it has in effect been contended that the allegations of
the Applicants bear no relation to Applicants’ legal rights and that
the true meaning of the compromissory clause is that the “dispute”
must relate to the interpretation or application of those provisions
of the Mandate which vest certain legal rights in the Applicants,
such as, perhaps, the right under Article 5 for missionaries to enter
the territory. No such limitation is to be found in Article 7 which
refers to “any dispute whatever ... relating to the interpretation or
application of the provisions of the Mandate’. Since, however,
jurisdictional issues must be scrupulously explored, one may con-
sider whether it is to be presumed that the rights of other States
to dispute about the interpretation or application of the Mandates
were limited to rights concerning what have been called their
“‘material” interests.

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425 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

International law has long recognized that States may have legal
interests in matters which do not affect their financial, economic,
or other ‘‘material’’, or, say, “physical” or ‘‘tangible’’ interests.

One type of illustration of this principle of international law is
to be found in the right of a State to concern itself, on general
humanitarian grounds, with atrocities affecting human beings in
another country. In some instances States have asserted such legal
interests on the basis of some treaty, as, for example, some of the
representations made to the Belgian Government on the strength
of the Berlin Act of 1885, concerning the atrocities in the Belgian
Congo in 1906-1907. In other cases, the assertion of the legal interest
has been based upon general principles of international law, as in
remonstrances against Jewish pogroms in Russia around the turn
of the century and the massacre of Armenians in Turkey. (See
generally, Rougier, Antoine, La théorie de l'intervention d'humanité,
XVII, Revue générale du droit international public (1910), pp. 468-
526; Stowell, Intervention in International Law (1921), passim. |

States have also asserted a legal interest in the general observance
of the rules of international law. For example, in the cases of
Manouba and Carthage, as submitted by France and Italy to the
Permanent Court of Arbitration in 1913, in addition to claims for
material damage, France claimed 100,000 francs for the ‘moral and
political injury resulting from the failure to observe international
common law...”. Although the Permanent Court did not award
damages on this ground, the Arbitral Tribunal in the case of the
I’m Alone between the United States and Canada in 1935, awarded
in addition to amounts for compensation for material damage, a
sum of $25,000, ‘‘as a material amend in respect of the wrong”.

For over a century treaties have specifically recognized the legal
interests of Statesin general humanitarian causes and have frequent-
ly provided procedural means by which States could secure respect
for these interests. The history of the international efforts to
suppress the slave trade from at least 1841 affords numerous
examples, but one may turn to more recent cases, for example, the
Minorities Treaties at the end of World War I. Illustrative is the
provision in Article 11 of the Treaty of St. Germain-en-Laye of
10 September 1919:

“The Serb-Croat-Slovene State further agrees that any difference
of opinion as to questions of law or fact arising out of these Articles
between the Serb-Croat-Slovene State and any one of the Principal
Allied and Associated Powers or any other Power, a member of the
Council of the League of Nations, shall be held to be a dispute of an

IIo
426 S. W. AFRICA CASES SEP. OPIN. JUDGE JESSUP)

international character under. Article 14 of the Covenant of the
League of Nations. The Serb-Croat-Slovene State hereby consents
that any such dispute shall, if the other party thereto demands, be
referred to the Permanent Court of International Justice.” (Hudson,
I International Legislation, pp. 312-319.)

The same provision is found in Article 69 of the Peace Treaty
with Austria, and Article 60 of the Treaty of Trianon with Hungary.

Similarly the Genocide Convention, which came into force on
12 January 1951 on the deposit of the twentieth ratification, pro-
vides in Article IX:

“Disputes between the Contracting Parties relating to the inter-
pretation, application or fulfilment of the present Convention,
including those relating to the responsibility of a State for genocide
or for any of the other acts enumerated in article III, shall be sub-
mitted to the International Court of Justice at the request of any
of the parties to the dispute.” (Vol. 78 United Nations Treaty
Series, pp. 278-282.)

As this Court said of the Genocide Convention: ‘In such a con-
vention the contracting States do not have any interests of their
own; they merely have, one and all, a common interest, namely the
accomplishment of those high purposes which are the raison d’être
of the convention. Consequently, in a convention of this type one
cannot speak of individual advantages or disadvantages to States,
or of the maintenance of a perfect contractual balance between
rights and duties. The high ideals which inspired the Convention
provide, by virtue of the common will of the parties, the foundation
and measure of all its provisions.” (1.C.J. Reports 1951, at p. 23.)
The question is not, therefore, whether one can conceive of a treaty
being concluded in such a spirit and with such results but whether
the Mandate was of this character.

Striking examples are also to be found in the Constitution of the
International Labour Organisation, in the various conventions
which the Organisation has brought into effect, and in operations
under those treaty provisions. It will be remembered that the
Constitution of the International Labour Organisation, like the
Covenant of the League, also formed part of the Treaty of Versailles.
The Preamble recites:

“Whereas the League of Nations has for its object the establish-
ment of universal peace, and such a peace can be established only if
if is based on social justice;

And whereas conditions of labour exist involving such injustice,
hardship and privation to large numbers of people as to produce
unrest so great that the peace and harmony of the world are imper-
illed...

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427 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

Whereas also the failure of any nation to adopt humane conditions
of labour is an obstacle in the way of other nations which desire to
improve the conditions in their own countries...

Article 411 (later renumbered Article 26) of the Constitution is
a broad recognition of the legal interest which all States, Members
of the Organisation, have in the maintenance of labour standards
and in the welfare of workers. The Article povides:

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

Article 423 of the Constitution provides:

1. “Any question or dispute relating to the interpretation of this
Part of the present Treaty or of any subsequent convention concluded
by the Members in pursuance of the provisions of this Part of the
present Treaty shall be referred for decision to the Permanent Court
of International Justice.” (See in general Jenks, International
Protection of Trade Union Freedom, pp. 157-161.)

Acting on the basis of Article 26 (to use the numbering of the
amended text) of the Constitution, the Republic of Ghana sent a
communication to the Director-General of I.L.O. on 24 Febru-
ary 1961, in which it stated:

“The Republic of Ghana is not satisfied that Portugal is securing
the effective observance in her African territories of Mozambique,
Angola and Guinea of Convention No. 105, [Abolition of Forced
Labour Convention, 1957] which both Portugal and the Republic of
Ghana have ratified.

Accordingly, the Republic of Ghana requests that the Governing
Body of the I.L.O. take appropriate steps, for example, by setting
up a Commission of Inquiry to consider this complaint and to report
thereon.”

The Governing Body of the I.L.O. on 10 March 1961, approved
the report of its Officers in regard to the procedure which included
the creation of a Commission of Inquiry. The judicial nature of the
inquiry is indicated by the composition of the Commission: the
Chairman was a Member of the Permanent Court of Arbitration,
another Member was a former judge of the International Court
of Justice and had previously been President of the High Court of
Justice in his own country, and the third Member was the First
President of the Supreme Court of another country. Further, the
Commission in its report said:

“The Governing Body in appointing the Commission placed special
emphasis on the judicial nature of the task entrusted to it, indicated

its desire for ‘an objective evaluation’ of the contentions submitted
by ‘an impartial body’ and required the members of the Commission

II2
428 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

before taking up their functions to make a solemn declaration ir
terms corresponding to those of the declaration made by Judges of
the International Court of justice.”

The Commission also noted in its report that if its findings or
recommendations were not accepted by both governments, either
one of them might refer the case to the International Court of
Justice under Article 29 of the Constitution of the I.L.O. (See
International Labour Office Official Bulletin, Volume XLV, No. 2,
Supplement II, April 1962, Report of the Commission Appointed
under Article 26 of the Constitution of the International Labour
Organisation to Examine the Complaint filed by the Government of
Ghana concerning the Observance by the Government of Portugal
of the Abolition of Forced Labour Convention, 1957 (No. 105).)

The fact which this case establishes is that a State may have a
legal interest in the observance, in the territories of another State,
of general welfare treaty provisions and that it may assert such
interest without alleging any impact upon its own nationals or
its direct so-called tangible or material interests. The operation
of the International Labour Organisation further indicates that
disagreements over the observance of general welfare provisions
may be the subject of judicial investigation and of ultimate resort
to this Court. Although, in the case cited, the special procedure
of a Commission of Inquiry was utilized, the basic situation of a
difference of opinion concerning the application of a treaty provision
on the general welfare of the inhabitants might perfectly well
be the subject of negotiation between two States.

Although it has been asserted that disputes concerning the
fulfilment of the requirements stated in paragraph 2 of Article 2
of the Mandate for South West Africa would be difficult to settle
by negotiation, there is no reason in logic or in experience why this
should be true. Certainly courts can determine and have determined
whether particular laws or actions comply with general broad
criteria such as ‘‘due process”, “equal protection” and “religious
freedom”. The Supreme Court of the United States is able to
determine what measures are or are not compatible with religious
freedom (Reynolds v. United States (1879) 98 U.S. 244; Engel et
al. v. Vitale (1962) 370 U.S. 421); or what is ‘the liberty in a social
organization which requires the protection of law against the
evils which menace the health, safety, morals and welfare of the
people”. (West Coast Hotel Co. v. Parrish (1937) 300 U.S. 379,
391.) So too, bilateral commercial treaties may involve negotiable
disputes concerning what measures affecting liberty of conscience
and worship are “necessary to protect the public health, morals
and safety”. (See Wilson, United States Commercial Treaties and

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429 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

International Law (1960), p. 271.) There is no reason why this Court
should be unable to determine whether various laws and regulations
promote the “material and moral well-being and the social progress
of the inhabitants” of the mandated territory.

If courts can pass on such questions, there is no reason why two
governments should not discuss them (and such discussion would
constitute a negotiation) and reach agreement that the measures
were improper; or that the deficiencies alleged to exist were not
established; or failing agreement, resort to this Court.

In the light of the foregoing, and in the light of thé familiar
history of the establishment of the Mandates System, it is not
surprising to find that in 1920 it was the intention of States to re-
cognize and to provide for a “legal” interest of States in questions
which did not directly touch their ‘material’ interests or those
of their nationals. That was what was done in defining the terms
of the Mandates. |

The Mandates System was one of at least four great manifesta-
tions in 1919-1920 of the recognition of the interest of all States in
matters happening in any quarter of the globe. The first manifesta-
tion was in Article 11 of the Covenant which recognized—as the
phrase was later used—that peace was indivisible. The second
manifestation was in the recognition of the interest of the inter-
national community in the protection of minorities. As provided
in Article 69 of the Treaty of St. Germain with Austria (prototype
for other minority treaties): “Austria agrees that the stipulations
in the foregoing Articles of this Section, so far as they affect persons
belonging to racial, religious or linguistic minorities, constitute
obligations of international concern...” The third manifestation
was in the recognition in the Constitution of the International
Labour Organisation (just quoted) of the interest which all States
have in “humane conditions of labour” in all other States. The
fourth manifestation is in Article 22 of the Covenant recognizing
the “sacred trust of civilization’ in promoting the well-being
and development of peoples not yet able to stand by themselves.

In the minorities treaties, in the Constitution of the Labour
Organisation and in the Mandates, there were provisions for refer-
ence to the Permanent Court of International Justice. In each
case the States entitled to invoke the jurisdiction were designated
by a description; in no instance was the class one of unchanging
composition. In connection with the minorities treaties, the proce-
dural or enforcement rights were delegated to a representative
group; both the permanent members and the changing non-perma-

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430 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

nent members of the Council of the League had the right to resort
to the Court. In the International Labour Organisation the Mem-
bers of the I:L.O. had the right and in the mandates the Members
of the League had the right. The text itself of the minorities treaties
recognized that disputes arising out of the treaty might relate to
questions of either law or fact. In the Constitution of the Internatio-
nal Labour Organisation the jurisdictional clause refers to ‘any
question or dispute relating to the interpretation...”. As the Ghana-
Portugal case just cited shows, the dispute might involve either
facts or law or both. In the mandates, the reference is to “any
dispute whatever ... relating to the interpretation or the applica-
tion...”. Clearly this provision also must embrace both issues of
law and issues of fact. Article 50 of the Statute gives this Court
ample powers to deal with questions of fact.

In no one of the three examples—minorities, labour, .mandates—
was it necessary for a State invoking the jurisdiction of the Court
to allege that it had a direct ‘‘material’’ interest, either for itself
or for its nationals. It has been well said:

“States conclude multilateral treaties not only in order to secure
for themselves concrete mutual advantages in the form of a tangible
give and take, but also in order to protect general interests of an
economic, political or humanitarian nature, by means of obligations
the uniformity and general observance of which are of the essence
of the agreement. The interdependence of international relations
frequently results in States having a vital interest in the maintenance
of certain rules and principles, although a modification or breach of
these principles in any particular single case is not likely to affect
adversely some of them at all or at least not in the same degree...”
(Note yy “H. L.” in 1935 British Yearbook of International Law,
p. 165.

At the first session of the Assembly of the League, the represen-
tative of Sweden said:

“People have asked me why we small nations in the North seem
to be so interested in this Article 22. It may be because of its guar-
anteeing freedom of trade with the Colonies. Yes, of course. We think
freedom of trade to be a good thing and monopolies a bad thing from
our commercial point of view. But I know that I have a right to
say, and I am proud to state, that this is not for us the essential
thing. No. To establish a world-wide culture, to preserve a lasting
peace—such are the reasons for our peoples’ interest in Article 22.
Have we not shown such moral interest for the natives, for instance,
of rica (Thirtieth Plenary Meeting, 18 December 1920, pp. 716-
717.

1x5
431 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

The conviction registered in the peace treaties at the close of
World War I in regard to minorities, labour, and dependent peoples,
. was that just as peace was indivisible, so too was the welfare of
mankind. Those responsible for the insertion of this principle in the
Peace Treaties were giving international application to the philo-
sophy that

“No man is an Island, entire of itself; every man is a piece of the
Continent, a part of the main. |

Any man’s death diminishes me, because I am involved in
Mankind...”

The foregoing interpretation of Article 7 is supported by the
history of the so-called Tanganyika clause. It will be remembered
that this clause, which constitutes the second paragraph of Article 13
of the British Mandate for East Africa, does not appear in the
final text of any other mandate. It was originally proposed in the
sessions of the Milner Commission in London in the summer of
1919 as a Clause to be inserted in all B Mandates. Following the
general jurisdictional paragraph which appears in identical terms
in paragraph 2 of Article 7 of the Mandate for South West Africa,
the Tanganyika clause goes on to provide that: “States Members
of the League of Nations may likewise bring any claims on behalf
of their nationals for infractions of their rights under this mandate
before the said Court for decision”. When the Belgian and British
Governments first agreed that a portion of German East Africa
should be assigned to Belgium as a Mandate, the Tanganyika
clause was included in the draft of the Belgian Mandate. Subse-
quently, it was dropped. In 1925, at the 6th Session of the.Perma-
nent Mandates Commission, M. Rappard thought that its inser-
tion in the British East African Mandate was accidental but Sir
Frederick Lugard said that the British Government did not believe
that is could be so described.

Aside from the various interpretations or comments on this
clause in the Mavrommatis case, it must be concluded that para-
graph 2 of Article 7 of the Mandate for South West Africa, which
is identical with the first paragraph of the jurisdictional article
in the East African Mandate, must mean something different from,
or more than, what is meant by the Tanganyika clause. The para-
graph in Article 7 of the South West Africa Mandate may include
claims on behalf of citizens but the Court is not required to decide
that point now. The paragraph mst include something other than
or in addition to the claims of nationals or else the East African
Mandate would have omitted paragraph 1 because paragraph 2
would have covered the field.

The language of paragraph 2 of Article 7 of the South West
Africa Mandate is very broad indeed and there is no evidence that
it is limited to matters in which other States might have a “public”

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432 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

concern, as for example the interest of a neighbouring State in the
control of the traffic in slaves, arms, or liquors. Even if one consid-
ered it necessary to identify some. such regional interest of this
kind, the regional interest of the Applicants cannot be gainsaid.
Although under the Labour Conventions no direct material interest
had to be established, the interest of Ghana in the question of forced
labour in Angola, etc., can be considered comparable to the interest
of Applicants in the conditions of the indigenous inhabitants in
South West Africa.

Bearing in mind the absence of the open-door clauses in the
C Mandates and the resulting restricted category of what might be
called direct, material interests of other States in the application of
the Mandate, why should the jurisdictional clause (i.e. Article 7),
if it was intended to apply only to these restricted categories, have
used the sweeping phrase: “‘any dispute whatever ... relating to the
interpretation or the application of the provisions of the Mandate”’?
Is it possible to interpret the words “the provisions” as meaning
only “some of the provisions” ?:

It is impossible to escape the conclusion that paragraph 2 of
Article 7 of the South West Africa Mandate was intended to re-
cognize and to protect the general interests of Members of the
international community in the Mandates System just as some-
what comparable clauses recognize this broad interest in the
minority treaties, in the Constitution of the International Labour
Organisation and, as more recently, in the Genocide Treaty and
in some of the trusteeship agreements concluded under the United
Nations. When the Mandate treaties were concluded, it was disputes
over these broad interests which were contemplated. (Cf. U.S.
Nationals in Morocco, I.C.J. Reports 1952, at p. 189.)

It has been urged that those who concluded the Mandate agree-
ments could not have intended the meaning of Article 7 (2) which
has just been stated, because they would have wished to avoid
the confusion and conflict which it might have entailed between
the respective roles of the Council of the League and the Permanent
Mandates Commission on the one hand, and the Permanent Court
of International Justice on the other hand. The Permanent Court
disposed of a comparable objection in connection with the Minor-
ities treaties which contained provisions both for invoking action
by the Council and for submitting a case to the adjudication of
the Court. (Settlers of German Origin, Series B, No. 6 (1923),
‘pp. 21-23; Upper Silesia (Minority Schools), Series A, No. 15
(1928), pp. 19-25.) And to the same general effect, although with
certain differences of treaty terms, Statute of the Memel Territory,
Series A/B, No. 47 (1932), pp. 248-249.

Reference has been made to Article 62 of the Statute of the Court
to establish the point that the Court is competent to pass only on

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433 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP)

“an interest of a legal nature’’. It is not demonstrated that Article 62
establishes a norm which must be used in interpreting Article 36
which says: “The jurisdiction of the Court comprises all cases which
the parties refer to it and all matters specially provided for in the
Charter of the United Nations or in treaties and conventions in
force.” The criteria for intervention may well be different from those
for original submission. In The Wimbledon, Poland at first claimed
the right to intervene under Article 62, but subsequently abandoned
that ground and claimed a right under Article 63 as.a party to the
treaty in question. The Permanent Court said:

“The attitude thus adopted renders it unnecessary for the Court
to consider and satisfy itself whether Poland’s intervention in
the suit before it is justified by an interest of a legal nature, within
the meaning of Article 62 of the Statute.”’ (Series A, No. 1, p. 13.)

The Court did not say that the interests under Articles 62 and 63
were identical on the ground that both must involve legal interests
of a particular kind. To take a clear case, when the minorities
treaties or the labour conventions provide for reference to the Court
of differences of fact or law arising under the treaties, the Court
is not entitled to disregard the plain terms of Article 36 of the
Statute and to assert that the Applicant State may not submit the
case because the Court does not think that general interests in the
welfare of minorities or of labour are the kinds of interests on which
an-intervention under Article 62 could be based. The same reasoning
applies to the Mandates. Moreover, it may be recalled that the
Permanent Court held that States can ask the Court ‘‘to give an ab-
stract interpretation of a treaty’. (Polish Upper Silesia, Series A, No.7,
pp. 18-19.) In my opinion, however, the short answer to this argu-
ment is that, for the reasons which have been stated, the general
interest in the operation of the mandates was a legal interest.

*
* *

The other aspect of a “dispute” which calls for examination is
whether it was one which, in the words of Article 7, “cannot be
settled by negotiation”. As in other respects, this aspect is to be
determined as of the date of the filing of the Applications in the
instant case, that is 4 November 1960.

Although frequently omitted in clauses providing for adjudication
on the interpretation or application of a particular convention, and
although not mentioned in Article 36 of the Statute of the Court,
the provision is a familiar one. The phraseology varies; some clauses
speak of settling the dispute “by diplomacy” which in these days
must be interpreted to include what has been called ‘‘parliamentary

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434 S. W. AFRICA CASES (SEP. OPIN. JUDGE JESSUP}

diplomacy” by which is meant the negotiation of solutions of inter-
national problems within the framework and through the procedures
of an organized body acting under established rules of procedure,
such as the General Assembly of the United Nations. The General
Assembly, and indeed the whole United Nations complex with its
permanent missions and its special committees, are today a part
of the normal processes of diplomacy, that is of negotiation.

Of course negotiation at or by conference is not new in the history
of diplomacy. One may recall the negotiations among ‘‘the Big
Four” at the Paris Peace Conference at the end of World War I,
the negotiations on problems of the Far East at the 1921-1922
Washington Conference on the Limitation of Armaments, and even
the many negotiations which went on at Vienna in 1815. But in the
earlier conferences there was usually no question of negotiating
with the conference as a body although examples are not lacking
where some of the smaller Powers did indeed have to negotiate
with the Great Powers acting corporately as the Concert of Europe.

Traditional diplomacy was also familiar with devices for carrying
on negotiations without the actual participation of the disputing
parties, as for example by the use of good offices or mediation. It
will be recalled that in the present.era of the United Nations, that
Organization utilized a Mediator in Palestine and Good Offices in
Indonesia.

It must surely be said that negotiations on many subjects have
taken place at and through the instrumentality of the United
Nations. There have certainly been negotiations in the United
Nations over a number of years concerning the Palestinian Arab
Refugees although the States principally concerned have not met
together separately to discuss these issues. Numerous other examples
could be cited as for example the negotiations in the General As-
sembly concerning the eventual federation of Eritrea and Ethiopia.
The problems of disarmament have been the subject of negotiations
through direct diplomatic channels whether bipartite or multi-
partite; through conferences around a table of ten or more dele-
gations; and through the regular debating procedures in the Com-
mittees and in the plenary sessions of the United Nations General
Assembly. (I leave aside negotiations in the couloirs.)

The question of the authority of the General Assembly under
Chapter XI of the Charter to exercise supervision of non-self-govern-
ing territories was negotiated in the General Assembly and its
committees over a period of years. So likewise the questions of the
obligation of the Mandatory to negotiate a trusteeship agreement
for South West Africa has been itself the subject of negotiations in
the General Assembly. The existing trusteeship agreements were
indeed negotiated in the General Assembly in a way in which the
Mandate agreements were never negotiated in the Council or in the
Assembly of the League.

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I have already dealt with the argument that the nature of the
issues raised in the Memorials in this case makes them unsusceptible
to negotiation in any forum.

Granted that there have been negotiations, have they demon-
strated that the dispute ‘‘cannot be settled by negotiation”? The
phrase ‘cannot be settled’’ clearly must mean something more than
“has not been settled”. In the Mavrommatis case, the Permanent
Court said:

“The Court realizes to the full the importance of the rule laying
down that only disputes which cannot be settled by negotiation
should be brought before it. It recognises, in fact, that before a
dispute can be made the subject of an action at law, its subject
matter should have been clearly defined by means of diplomatic
negotiations. Nevertheless, in applying this rule, the Court cannot
disregard, amongst other considerations, the views of the States
concerned, who are in the best position to judge as to poli-
tical reasons which may prevent the settlement of a given dis-
pute by diplomatic negotiation.”’ (Series A, No. 2 (1924), at p.15.)

There certainly is no absolute litmus test which would enable a
Court to assert in all situations at just what moment settlement by
negotiation becomes impossible. To me it seems clear on the face of
the record that the condition is fulfilled in this case. I know of
nothing in the record which would lead the Court to conclude that
if either of the Applicants entered into direct diplomatic negotiations
with Respondent on the specific issues which have been debated over
the years in the General Assembly and which have been alleged in
the Memorials, settlement could be reached on all of the points
which, in the allegations of Applicants, relate to the interpretation
or application of the Mandate. If there is one point of disagreement
between Applicants or either of them on the one hand and
Respondent on the other, which, it is fair to say, ‘“‘cannot be settled
by negotiation”, then this requisite quality of the dispute exists.
In this respect States are not eternally bound by the old adage:
“Tf at first you don’t succeed. try, try again.”

It is not persuasive to assert that the negotiators on one side or
the other have been stubborn, or unreasonable, or adamant. Such
allegations are common in international negotiations and are often
sincerely believed. One cannot take the position that the dispute
can be settled by negotiation because it would be if one side wholly
gave in to the contentions of the other. As the Permanent Court
said, the Court cannot disregard “the views of the States concerned,
who are in the best position to judge as to political reasons which may
prevent the settlement of a given dispute by diplomatic negotiation’”’

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In this, as in other cases, the important point is whether the
Respondent was made aware of the complaints of Applicants, had
an opportunity to state its point of view, did state it, and that
Applicants were not persuaded but still maintained their positions.
As was said by Judge Hudson in his dissenting opinion in the
Electricity Company case: ‘‘What is essential is that prior to the
filing of an application by one party bringing the dispute before the
Court, the other party must have been given the opportunity to
formulate and to express its views on the subject of the dispute.”
(Series A/B, No. 77, 1939, p. 132.) Certainly this test is met in the
present cases. It is true that Judge Hudson, speaking with reference
to the facts in the case before him, continued to say: “Only diplo-
matic negotiations will have afforded such an opportunity. The
precise point at which it may properly be said that the negotiations
instituted cannot result in a settlement of the dispute may have to
depend, as the Court has also recognized [citing Mavremmatis] upon
the ‘views of the States concerned’.” Judge Hudson was not con-
sidering the modern operations of diplomacy in the United Nations
context and his remarks in 1939 in the case before him cannot be
considered to negate the conclusions reached herein.

The nature of this modern conference or parliamentary diplomacy
may tend to exaggerate the separate individuality of the interna-
tional organization or one of its organs. The problem existed in
political matters in the days of the League of Nations, when it
could at times be observed that the Council of the League might be
used as a kind of whipping boy in the sense that an influential
Member of the Council might plead that there was nothing it could
do because the “Council” had not acted, ignoring the fact that the.
Member in question had not taken steps to activate the Council.
Similar phenomena have been remarked in the era of the United
Nations. An international organization may indeed be something
more than the sum of its parts, but, to change the metaphor, one
must not overlook the trees when one sees the forest.

There are numerous instances in the history of the United Nations
where it might be said that certain States which are in a minority
in the voting on some action to be taken by the Organization, have
a “dispute” with the Organization, but it cannot be doubted that in
many of these cases the States in the minority. also have a “dispute”
with certain States in the majority and that the latter States can
easily be identified. It might be invidious, and it is unnecessary to
mention specific cases which illustrate the point. It is not maintain-
ed that in every instance in which there is a division of votes,
every State voting in the majority has a “dispute” with every
State voting in the minority. It is maintained that in the instant
cases, on the reccrd, there is a dispute between Applicants and
Respondent.

| (Signed) Philip C. Jessup.

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