154

DISSENTING OPINION OF JUDGE BUSTAMANTE
[Translation ]

As I am unable to concur in the decision reached by the Court
in its Judgment in the present case, Î must set out the reasons for
my dissenting opinion and also the conclusions at which I have
arrived, but I must first say that I do so with the greatest deference
towards the opinion of the majority of the Members of the Court.

+
* *

1. In its Application dated 30 May 1067, further developed in
the Memorial dated 12 December, the Federal Republic of Came-
roon asked the Court to state the law, as against the United King-
dom of Great Britain and Northern Ireland, with regard to a dis-
pute the terms of which may be summarized as follows. The
question at issue is whether, in the application of the Trusteeship
Agreement for the Northern Cameroons concluded with the United
Nations on 13 December 1946, the United Kingdom, as the Ad-
ministering Authority, failed to respect various obligations aris-
ing from the said Agreement or from the express instructions of
the General Assembly, the consequence of the failure to do so
having in fact been that an abnormal and distorted character
was given to the plebiscite held on 11 and 12 February 1961 which
resulted in a majority decision in favour of the incorporation of
the Northern Cameroons in the State of Nigeria.

In its Counter-Memorial dated 14 August 1962, the United
Kingdom, without omitting—in so far as the merits are concerned—
to rebut the complaints raised by the Applicant Party, put for-
ward several preliminary objections most of which relate to the
jurisdiction of the Court whilst some of them are concerned with
certain aspects of the inadmissibility of the claim. It is for the
Court to decide, in its Judgment, whether these objections are
well founded.

2. The question of jurisdiction must be settled—and the Parties
are in agreement on this point—in the light of Article 19 of the Trus-
teeship Agreement for the Territory of the Cameroons under
United Kingdom administration. The jurisdiction of the Court is
said to be founded on the terms of a treaty or convention ‘in
force”, as provided for in the concluding portion of paragraph 1
of Article 36 of the Statute of the Court.

According to that paragraph, the essential condition for estab-
lishing the jurisdiction of the Court is that the treaty in question
should have been in force at the time when the dispute arose.
The two Parties have recognized that the Trusteeship Agreement

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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 155

was still in force on 30 May 1961, the date of the Republic of Came-
roon’s Application. Two days later (on 1 June 1961) the Trustee-
ship Agreement terminated, in accordance with resolution 1608
(XV) of the General Assembly of the United Nations, dated 21
April of the same year.

It could be asserted that if it is the final aim of judicial action
to clear up for the future any doubts to which the text of atreaty
may give rise, or to prevent in the future the repetition of errors
of application already committed in the past, neither of these
aims could be achieved if the action were instituted on the eve
of the expiration of the treaty. But it must be borne in mind that
the aim of legal action in such a case is not always directed towards
the future, for the action may also have a retrospective aim in
seeking to obtain a judicial finding as to the conformity or non-
conformity with the law of an interpretation of a contract which
has already been given or of the application of a treaty provision
which it is considered was wrongly carried out in practice. In such
a case, it seems to me that an Application is always admissible if
the problem raised by it is concerned with the period when the
treaty was in force. Human deeds or acts involving third parties,
irrespective of who commits them—whether a man or a State—give
rise to responsibilities, which may in certain cases be determined—
in the absence of other means—of settlement by courts of justice.
And all this independently of the value of such precedents as the
judicial decision may in certain circumstances serve to establish
for the purposes of the future application of the law or agreement
in question.

3. Article 19 of the Trusteeship Agreement of 13 December 1946
reads as follows:

“If any dispute whatever should arise between the Administering
Authority and another Member of the United Nations relating to
the interpretation or application of the provisions of this Agreement,
such dispute, if it cannot be settled by negotiation or other means,
shall be submitted to the International Court of Justice provided
for in Chapter XIV of the United Nations Charter.”

The conditions in which, according to the text cited above, the
Court has jurisdiction, may be summed up as follows:

A. As to the juridical persons mentioned in the Agreement, the
following are considered as being entitled to appear before the
Court:

(a) the Administering Authority;

(b) any other Member of the United Nations.

The nature and scope of the intervention of such Member States
in proceedings before the Court, whether as parties to the Agree-
ment or as third parties concerned, is a subject of controversy
and interpretation, which will be considered later.

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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 156

B. As to the subject-matter of the litigation :
(a) there must be a dispute—any dispute whatever;
(b) this dispute must relate to a question of the interpretation
or application of the provisions of the Trusteeship Agreement ;
(c) the dispute must be incapable of settlement by negotiation
or other means.

I now turn—with regard to the jurisdiction of the Court—to a
study of these two important aspects of Article 19 of the Agree-
ment in relation to the particular case raised in the Application and
taking into consideration, too, the objections of the respondent
Party.

4. The first question that arises in regard to the juridical per-
sons mentioned in Article 19, relates to the nature and scope of
intervention in Court proceedings by “another Member of the
United Nations”, as referred to in that Article. In the United
Kingdom view, these States are not parties to the Trusteeship
Agreements but merely third States who are called upon to watch
over certain rights of their nationals (Articles 9, 10, II and 13 of the
Agreement). Consequently, any “other Member” considered in-
dividually would not have the right to enter into a judicial dispute
with the Administering Authority concerning the interpretation
or application of the general provisions (Articles 3 to 8, 12, I4 to
16) of a trusteeship agreement to which it is not a party. Such a
claim would be inadmissible because supervision in regard to the
general provisions of the Agreement belongs exclusively to the
United Nations. The jurisdiction of the Court therefore does not
embrace actions of this kind by Member States. In this connection,
the United Kingdom noted that, in the case of the Cameroons, it
was not a question of the existence of a Mandate agreement under
the former system of the League of Nations, but of a trusteeship
agreement entered into with the United Nations, these two insti--
tutions being governed by norms that are different although in-
spired by a common object. Thus it follows therefrom that the
rights of Member States as provided for in a trusteeship agree-
ment must not be equated with the rights provided for in a Man-
date agreement. The latter are more restricted, adds the United
Kingdom, and this was admitted in the Judgment delivered by the
Court on 21 December 1962 in the South West Africa cases (1.C.].
Reports 1962, p. 319). According to that Judgment, the judicial
protection provided in favour of the populations under the Man-
date System did not become necessary in the new Trusteeship
System, the reason for this being that, having regard to the struc-
ture of the Charter of the United Nations, that Organization
undertook to safeguard the rights of the inhabitants of the Trust
Territory administratively and in a more comprehensive manner
than the Covenant of the League of Nations of 1919, from any
possible errors or abuses on the part of the Trusteeship authori-

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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 157

ties, the clause providing for judicial protection having thereafter
no reason to subsist as an essential element of the trusteeship
agreements.

In the first place, this interpretation by the Respondent of the
significance of the Judgment of 21 December 1962 (case of Ethio-
pia and Liberia v. Union of South Africa) seems to me to be too
peremptory and consequently excéssive. What the majority of the
Court stated in the Judgment in a very general way (.C.J. Re-
ports 1962, p. 342) was that after the coming into force of the new
Trusteeship System ‘the necessity for judicial protection” (that is
to say, the necessity for inserting the jurisdictional clause in the
trusteeship agreements) “was dispensed with”; but this is very
far from meaning that such protection thenceforward became
superfluous and could not be incorporated in the new trusteeship
agreements. On the contrary, the text of the Judgment shows in
numerous passages that the judges adhered to this form of judi-
cial safeguard for the benefit of peoples under Trusteeship. The
insertion of Article 19 in the text of the Trusteeship Agreement for
the Northern Cameroons, which was done with the assent of the
United Kingdom, in itself alone shows that the interpretation
which I have just given is correct.

It is, however, necessary to make a more thorough study of this
question and I shall do so by taking into account not only the
Judgment in the South West Africa cases of 1962 but also my sepa-
rate opinion which was appended thereto U.C.J. Reports 1962,
p. 349) in which I considered certain aspects that were not men-
tioned by the majority of the Members of the Court.

According to the Court U/.C.J. Reports 1962, p. 329)—

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

In another paragraph of its Judgment, the Court says (7.C.J.
Reports 1962, p. 336):

‘... Judicial protection of the sacred trust in each Mandate
was an essential feature of the Mandates System. The essence of
this system, as conceived by its authors and embodied in Article 22
of the Covenant of the League of Nations, consisted, as stated
earlier, of two features: a Mandate conferred upon a Power as ‘a
sacred trust of civilization’ and the ‘securities for the performance
of this trust’... The administrative supervision by the League
constituted a normal security to ensure full performance by the

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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 158

Mandatory of the ‘sacred trust’ toward the inhabitants of the
mandated territory, but the specially assigned role of the Court
was even more essential 1, since it was to serve as the final bulwark
of protection by recourse to the Court against possible abuse or
breaches of the Mandate.”

Speaking of the concept of the “sacred trust of civilization’’
recognized by the Court, I held in my separate opinion in 1962:

(a) that:

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

dian.” (1.C.J. Reports 1962, p. 354.)
(b) that:

“The function assigned by the Covenant [of 1922] to the League
of Nations as a clearly characterized ‘tutelary authority’ for such
territories [under Mandate}, comes particularly clearly out of the
text of paragraph 2 of Article 22, according to which the Mandatory
is required to exercise its functions ‘on behalf of the League’.

It seems to me that this point is of prime importance for the
decision in this case because, starting from the recognition of the
direct legal interest which the populations under tutelage possess
in their mandate regime and having regard to their capacity as
legal persons—for whom the League of Nations is the tutelary
authority—many legal consequences flow therefrom. In the first
place, the populations under Mandate are in fact parties to the
Mandate agreements and represented by the League of Nations.
Secondly, the Mandatory’s obligation to submit to the supervision
of the tutelary authority and account for the exercise of the Mandate
is obvious. Finally, from this concept it follows that all the Members
of the Organization are jointly and severally responsible for the
fulfilment of the ‘sacred trust’ and for watching over the populations
whose destiny has been put under their aegis.” (7.C.J. Reports 1962,

Pp. 355.)
(c) that:

“The function of the Mandatory is a responsibility rather than
a right (Article 22, paragraph 2, of the Covenant). The less developed
the population under Mandate, the heavier the responsibility of

! My italics.
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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 159

that Mandatory, as in the case of C Mandates (Article 22, paragraph
6)... This is one of the most characteristic features of the system:
the Mandatory signifies its acceptance not as a party with an
interest in the prospects flowing from the contract but as a colla-
borator of the international community in its trust of civilizing a
certain underdeveloped people.” (1.C.]. Reports 1962, p. 357.)

I must now add that the most adequate means of determining
responsibilities of a legal nature lies in the jurisdiction of the Court.

(4) that the jurisdictional clause inserted in the Mandate agree-
ments—

“is but the implementation of Article 14 of the Covenant of the
League of Nations which established recourse to the Permanent
Court as the final, although voluntary, means of settling international
disputes between States... Again, this safeguard of recourse to
judicial jurisdiction is universally accepted for the settlement of
all sorts of litigious situations or situations subject to legal inter-
pretation, so that its inclusion in a Mandate agreement does not
involve any anomaly.

In my view, the true significance of the clause providing for
recourse to the Court is that of a security for both parties as to the
proper application of the Mandate and the proper exercise of
supervision.” (1.C.J. Reports 1962, pp. 360-361.)

(e) that:

“there is a further reason which obviously the Council of the
League of Nations took care to provide for in the compromissory
clause. Under Articles 34 and 35 of the Statute of the Permanent
Court, only States and the States Members of the League could be
parties in cases before the Court in contentious proceedings. The
League, which was not a State, could only request ‘advisory
opinions’ (Article 14 of the Covenant); thus should an insoluble
difference of view with the Mandatory arise, the intervention of
the States Members, the jointly responsible constituent elements of
the League, became indispensable as parties to the proceedings.”
(I.C.J. Reports 1962, p. 362.)

In short, I held in my separate opinion that the judicial protec-
tion provided for in the jurisdictional clause of the Mandate agree-
ments fulfilled a function of public interest for the whole of the
international community and consequently authorized any Mem-
ber State to require the Mandatory to fulfil its obligations prop-
erly whether in relation to the interpretation or in the matter of
the application of those agreements.

It may be helpful to recall here the transition period between
the liquidation of the League of Nations and the constitution of
the United Nations, and also the replacement of the former Man-
date System by the institution of trusteeship, in order to deter-
mine as far as possible whether the right of Member States to take

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action under the jurisdictional clause of the trusteeship agreements
suffered any restrictions or whether the clause itself should be
definitively excluded.

The Assembly of the League of Nations, and also the First
Committee, met, around April 1946, in order to settle the position
of the Mandates during this transitional period, and all the Man-
datory Powers solemnly stated their intention of continuing to
administer without change the territories which had been entrusted
to them. Together with other States, the United Kingdom—which
had been exercising a Mandate over the Cameroons since 1922
then expressed such an intention, stating that it would act “in
accordance with the general principles of the existing Mandates”.
The French delegate stated that—

“all the territories under the Mandate of his Government would
continue to be administered in the spirit of the Covenant and of the
Charter ... in pursuance of the execution of the mission entrusted
to it by the League of Nations”.

The representative of Australia stated that his country considered
that the dissolution of the League of Nations did not weaken the
obligations of countries administering mandates. The delegate of
New Zealand stated that its administration would continue “‘in
accordance with the terms of the Mandate’. On all sides, the concept
of the “‘sacred trust” was accepted in the declarations of the Man-
datory Powers, without any discrimination being made between
the Covenant and the Charter. All these declarations were received
and approved by the Assembly of the League of Nations at its
meeting on 18 April 1946 U.C./. Reports 1962, pp. 339-341). It
can accordingly be asserted that, despite the dissolution of the
League of Nations, there was unanimous agreement among the
Mandatory Powers that the Mandates were to continue to be
exercised in accordance with the rules of the Mandate agreements,
until the Trusteeship System had been finally established.

That system was established on the day when the Charter of the
United Nations entered into force. Like Article 22 of the Covenant
of the League of Nations, Article 73 of the Charter mentions the
“sacred” character of the obligation of Administering States to
promote the well-being of the inhabitants of the non-autonomous
territories the paramount character of whose interests is explicitly
recognized. Articles 75, 76 and 83, paragraphs 2 and 3, are identical
with Article 22 of the Covenant in regard to the aims and the object
of the new system of trusteeship which are the same as the aims of
the United Nations, the new regime continuing to be, like that of
the Mandates, an institution in which all States of the world
Organization are concerned, that is to say an institution of inter-
national public interest. Article 77 stipulates in imperative terms
that the territories then held under Mandate were to be placed
under the Trusteeship System. Finally, Chapter XIII of the

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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 161

Charter is concerned with supervision over the actions of the
Administering Authority, thus reaffirming in the clearest possible
way the principle of that Authority’s responsibility in regard to
the fulfilment of its mission of trusteeship.

In the light of these basic considerations, the fact at the time
when the Charter entered into force, that, the United Kingdom
consented to the insertion in the text of the Trusteeship Agreement
for the Northern Cameroons (13 December 1946) of Article 19
concerning judicial protection can only be interpreted as a con-
firmation of its previous policy, which was in favour of considering
the new trusteeship as a continuation of the former Mandate and
maintaining in the new text the judicial protection clause which
appeared in the previous Mandate agreement. Seeing that the
General Assembly of the United Nations also signed and approved
the said Trusteeship Agreement, no doubt remains as to the fact
that the principal organ of the United Nations considered the
insertion of Article 19 in the new contractual text as lawful and
expedient. Consequently, on the basis that the judicial protection
clause does in fact exist by mutual accord in a trusteeship agree-
ment, the validity of which nobody has denied, the only conclusion
to be arrived at is that the applicability of the clause must be
admitted.

In this connection, attention must be drawn to a detail which is
of decisive importance, namely that, in the Trusteeship Agreement
for the Northern Cameroons which replaced the Mandate Agree-
ment, the terms of the jurisdictional clause are practically the same
as in the former Mandate agreements, without the wording im-
posing any restriction in regard to the judicial action open to ‘“‘other
Member States” in respect of the interpretation or application of
the Agreements, which allows it to be inferred that neither the
United Nations nor the United Kingdom intended to diminish the
scope conferred upon judicial action in the Mandate agreements by
the literal and natural meaning of the text.

I wonder whether, taking this background into consideration, it
can reasonably be thought or presumed that the mission entrusted
to Member States by the Covenant under the Mandates System
could have been curtailed at the moment when the trusteeship
came into being. This would mean a retrogression in the tendency
of international organizations, always favourable to the protection
of unliberated peoples and always directed towards the safeguarding
of their rights.

I am prepared to admit that in the articles of the Trusteeship
Agreement there can be distinguished two categories of obligations
imposed on the Administering Authority: some, which are called
individual, concern relations with other Member States or their
nationals (Articles 9, 10, 11 and 13) while others are concerned with
the tutelary Power’s general obligations with regard to the ad-
ministration of the trust territory (for example, Articles 4, 5, 6, 8,

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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 162

12 and 14 to 16). But even admitting this distinction, Iam unable
to concur with the assertion that the competence conferred by Ar-
ticle 19 upon the Court to decide questions of the interpretation or
application of the Agreement relates only to questions concerning
individual obligations and not to questions concerning the other
obligations connected with the general administration of the Terri-
tory, supervision in respect of which comes under the allegedly
exclusive control of the United Nations. This restrictive inter-
pretation of the jurisdiction of the Court is not, in my opinion,
justified. On the contrary, it runs counter to the literal meaning
of Article 19. If the Agreement had been intended to be so limited,
the sentence in question would not have been worded as it was:
“. relating to the interpretation or application of the provisions of
this [Trusteeship] Agreement...”’, but would have read: “... relating
to the interpretation or application of Articles 9, 10, Ir and 13 of
this Agreement...”’. There can be no doubt that, according to the
text of Article 19, as it is worded, the interpretation and application
of all the provisions of the Agreement—and not only some of them—
are matters capable of being judged by the Court. This amounts to
saying that each Member State was given the right to participate,
by means of judicial proceedings, in the task of supervising all
the obligations of the tutelary authority relating to the general
administration of the trusteeship.

From all that I have just said and after deep reflection, it seems
to me that it is far from being clear that the scope of the juris-
dictional clause of the new trusteeship agreements must be regarded
as less comprehensive than that of the clause in the former Mandate
agreements. There are good reasons for holding that this clause (of
which Article 19 of the Trusteeship Agreement for the Northern
Cameroons is an example) gives to the Member States of the United
Nations—as is the meaning of its literal text—the right to bring
before the Court legal questions concerning the correctness or
incorrectness of the interpretation or application which the Ad-
ministering Authority has given to the general obligations which
flow from the Trusteeship Agreement whether in regard to the
Member State in question or in regard to its nationals or to the
peoples of the trust territory. In my opinion, the only problem
raised by this particular case is the question whether the Territory
of the Northern Cameroons was still, at the date cf the Application
(30 May 1961), a “‘trust territory” so far as concerned the implemen-
tation of its judicial protection and the safeguarding of the in-
dividual interest of the Federal Republic of Cameroon orits nationals.
The reply must be affirmative seeing that the United Kingdom
Trusteeship in respect of this territory was not to terminate until
two days later, that is to say, on 1 June 1961. There is, however,
above all one other major reason in favour of this affirmative reply,
namely the fact that after 1 June the Northern Cameroons did not
cease to be a non-independent country, for it was incorporated as

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JUDG. 2 XII 63 (DISS, OPIN. JUDGE BUSTAMANTE) 163

a province in the State of Nigeria pursuant to the results of the
plebiscite of February 1961. As the Application of 30 May 1961
indicated that, so far as the Territory of the Northern Cameroons
was concerned, those results were due to the unfavourable influence
of certain measures and attitudes of the Administering Authority,
it seems obvious that at the very centre of the dispute submitted
by the Federal Republic there is a question concerning the exercise
of the Trusteeship and, consequently, it is covered by the provisions
of the Trusteeship Agreement of 13 December 1946.

5. But this is not the only aspect to be considered in the present
case. There is another fact, namely the very special position of the
Federal Republic of Cameroon, the direct interest of which in the
fate of the peoples of the Territory of the Northern Cameroons
springs from points of view both geographical (factor of contiguity)
and historical (factor of common origin of the two Cameroons
(British and French) in the former German Kamerun). (See the
White Book of the Republic of Cameroon and the maps submitted
as annexes to the Counter-Memorial of the United Kingdom.)

All that need be done is to place Articles G, 10, 11 and 13 along-
side Article 19 of the Trusteeship Agreement in order to see that
Member States can have access to the Court in a twofold capacity:
on behalf of their nationals and also on their own behalf, in their
own interest as States, when they receive from the Administering
Authority, in the application of the trusteeship, unequal treatment
in certain matters (social, economic, industrial or commercial) or
suffer from some discrimination based on nationality. Thus the
first paragraph of Article 9 says:

‘. for all Members of the United Nations and‘ their nationals’.

Paragraph (c) of Article 10 reads:
‘. against Members of the United Nations or ! their nationals’.

Article 11 reads:

€

‘. any Member of the United Nations to claim for téself or + for
its nationals”.

In the present case the Federal Republic of Cameroon could not
be indifferent to the results of the plebiscite in the Northern
Cameroons, whether the people pronounced themselves in favour of
Nigeria or for incorporation in the Republic of Cameroon, as was
the case in the Southern Cameroons. Interests of a geographical,
social, economic, historical, etc., nature were undeniably involved
in this choice.

Fundamentally, the Application of the Federal Republic of
Cameroon, in asking the Court to pronounce upon the fact that

1 My italics.
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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 164

certain measures or attitudes of the Administering Authority were
not in conformity with the Trusteeship Agreement for the Northern
Cameroons—or with the instructions of the General Assembly—
seeks to establish, as one of its main objects, the certainty that
there was discrimination by the tutelary State to the prejudice of
the Applicant and to the benefit of the State of Nigeria. It seems
to me that from this point of view the institution of these pro-
ceedings by the Republic of Cameroon cannot be disallowed, not
only in consideration of the direct legal interest which it has in
the case (Article 62 of the Statute), but because on the date of the
Application—30 May 1961—the Republic of Cameroon already
possessed the status of membership of the United Nations, which
it had acquired as a result of the resolution of the General Assembly
of 20 September 1960.

6. With regard to action before the Court, the first condition laid
down by Article 19 of the Trusteeship Agreement is that a dispute
must exist between the Parties. Taking into account the fact that
the Republic of Cameroon, which became independent on 1 January
1960, was admitted to the United Nations on 20 September 1960,
the dispute with the United Kingdom as Administering Authority
for the Territory of the Northern Cameroons, must have arisen
after the date on which Cameroon became independent, for this
kind of dispute is conceivable only between two sovereign States.
For the purposes of the Court’s jurisdiction under Article 19 of the
Trusteeship Agreement, it is necessary that the dispute must
have taken shape after 20 September 1960, the date on which the
admission of the new Republic to the United Nations gave it the
right of access to the International Court.

Having established these premises, it must also be recalled that,
for the purposes of Article 19 of the Agreement, the dispute must
already have existed and have taken shape before the Application
(Mavrommatis case, opinion of Judge Moore), for the said Article
permits action before the Court only if the disagreement has proved
incapable of settlement by negotiation or other means.

In the present case, an examination of the file leads to the con-
clusion that the process by which the dispute arose and took shape
was more or less as follows:

(a) Documents issued by various organs of the United Nations
—the Trusteeship Council, the Fourth Committee, the General As-
sembly—and submitted by the Parties as annexes to the pleadings
or subsequently as documents in evidence, frequently show, above
all for the period between 1957 and 1961, the concern of these or-
gans about the system under which the Northern Cameroons was
administered under United Kingdom Trusteeship and reveal that a
certain irregular situation was affecting the territory, the General
Assembly having, at the end of 1959, issued directives for the modi-
fication of the administrative organization as the only way of

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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 165

guaranteeing the impartiality of the plebiscite which was to decide
the fate of the Trust Territory. Finally, the representative of
France, on behalf of the French Cameroons', and the Republic
of Cameroon itself when it had just acquired independence, trans-
mitted communications expressing certain reservations with regard
to the plebiscite. Clear signs of disagreement had already made
themselves evident. The United Kingdom took part in these dis-
cussions through its delegates to the United Nations.

(b) The Federal Republic of Cameroon, which had become inde-
pendent on I January 19607, through its Ministry of Foreign
Affairs and the Secretariat of State for Information, around March
1067, published and had circulated in official circles—including the
United Nations Headquarters—a pamphlet known as “The White
Book” wherein allegations were made against the United Kingdom
in its capacity as Administering Authority for the Northern Cam-
eroons, viz.:

(x) Dissolution of the personality of the Northern Cameroons
resulting from the division of the territory, the administration
of which was incorporated with that of two provinces of
Nigeria, which was under British tutelage, contrary—accor-
ding to the Republic of Cameroon—to Article 76 of the
Charter of the United Nations;

(2) Failure to respect recommendations 4 and 5 of resolution
1473 (XV) of the General Assembly, dated 12 December
1959, regarding the decentralization and democratization of
the Trust Territory and its administrative separation from
Nigeria;

(3) Infringement of Article 76 (8) of the Charter, as the Ad-
ministering Authority had not promoted the progressive de-
velopment of the Territory towards self-government, neglect-
ing the participation of its inhabitants in the administrative
services ;

(4) Responsibility of the Administering Authority concerning
the results of the plebiscite of 11 and 12 February 1961
with regard to irregularities and the absence of safeguards
for the preparation and holding of the plebiscite and the
methods employed thereafter.

The representative of the United Kingdom answered the com-
plaints contained in the White Book in a letter dated ro April
1961 to the Chairman of the Fourth Committee (Annex 10 to the
Observations of Cameroon). It can thus be affirmed, even though
the two Parties had not yet confronted each other directly concerning

1 18 May 1960, Doc. T/PV L 086, cited on page 3 of the “White Book” (English
version).

2 Resolution 1349 (XIII) of the General Assembly, 749th Plenary Meeting,
13 March 1959.

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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 166

the matter in dispute, that a fairly sharp divergence of views had
arisen between them.

(c) The third phase in the process of the development of the dis-
pute, in which it assumed its full shape, is the phase comprising
the two Notes exchanged between the Minister for Foreign Affairs
of the Republic of Cameroon and the United Kingdom Ambassador
in Paris acting on behalf of Her Britannic Majesty. In the Camer-
oonian Note dated 1 May 1961, the points of law which constitute
the subject of the disputes are stated (paras. (a) to (d)), attention
being drawn to those Articles of the Trusteeship Agreement which,
in the opinion of Cameroon, had been contravened (Articles 5 (0)
and 6), and also to the provisions of resolution 1473 (XIV) of the
General Assembly of the United Nations which had not been re-
spected (Recommendations 4, 6 and 7). In connection with ali of
these a number of questions were put to Her Majesty’s Government
as being questions which should be submitted for judicial settlement
in accordance with Articles 2 and 33 of the Charter. The statement
of the points at issue coincides roughly with that in the White Book,
but it is drawn up more carefully and in greater detail. The United
Kingdom Memorandum (26 May 1961) gave a categorical reply to
the Cameroonian Note: any responsibility in connection with the
supposed infringements of the Trusteeship Agreement was denied
because, the decisions adopted by the General Assembly of the
United Nations having already settled the matter, the disagreement
alleged of the Republic of Cameroon was not a disagreement with
the United Kingdom but with the United Nations.

The two diplomatic documents to which I have just referred
thus contain the essential elements of an international dispute, in
other words, a conflict of legal views on one or more points of law
with respect to a particular case. Moreover, the ‘memoranda”
reveal that the dispute had taken definitive shape in May 1961,
after the admission of the Republic of Cameroon to the United
Nations (20 September 1960) and before the expiration of the
Trusteeship Agreement (1 June 1961).

In addition the United Kingdom Memorandum provides another
element of assistance in forming a judgment, namely the fact that
the negotiations entered into by Cameroon with a view to settling
the dispute by judicial means led to a “deadlock”. The United
Kingdom refused to seek a legal solution. In this respect, the
condition laid down in Article 19 of the Trusteeship Agreement,
concerning the breakdown of negotiations, is fulfilled.

In its Application of 30 May 1961, based on Article 19 of the
Trusteeship Agreement, the Republic of Cameroon reiterates to the
Court the complaints contained in its Memorandum of r May, not
omitting to add that the United Kingdom disputed the arguments
submitted by the Applicant.

155
JUDG. 2 XII 63 (DISS. OPIN, JUDGE BUSTAMANTE) 167

Taking all this historical background into account, I come to the
conclusion that a dispute exists between the Republic of Cameroon
and the United Kingdom according to the doctrines of international
law.

7. The second question which arises is whether the dispute concerns
problems relating to the application or interpretation of the Trus-
teeship Agreement within the meaning of Article 19 thereof. The
very wording of the Application makes it possible to give an
affirmative answer to this question. The Court is asked to decide
whether the United Kingdom, in its capacity as Administering
Authority, interpreted and applied, correctly or incorrectly, the
Trusteeship Agreement and, in consequence, whether it respected or
failed to respect certain articles of the said Agreement and certain
decisions of the General Assembly of the United Nations previously
accepted by the United Kingdom. It seems obvious to me that the
decision to be taken by the Court would constitute an act of inter-
pretation concerning the proper or improper application of the
Trusteeship Agreement. The condition laid down in this connection
by Article 19 of the Agreement has thus been complied with.

8. The other pleas entered by the Respondent by way of prelimi-
nary objections must be analysed here.

(a) In the first place, the United Kingdom considers that the
chief aim of the Application is to gainsay the validity of the plebis-
cite which brought the Trusteeship to an end, all the other com-
plaints against the conduct of the Administering Authority through-
out the existence of the Trusteeship being subordinate to this
principal motive. But, according to the United Kingdom, the two
facts of the holding of the plebiscite and the declaration of the
termination of the Trusteeship do not come within the terms of the
Agreement, which does not provide for any obligation on the part
of the tutelary State in this connection, the General Assembly of
the United Nations being the only authority which dealt with these
aspects, in accordance with Article 85, paragraph 1, of the Charter,
in collaboration with the United Kingdom. Consequently, that for
which the Application is basically asking relates to a matter which
falls outside the field of application of the Trusteeship Agreement
and which exceeds the Court’s capacity to be seised of the case
under the terms of Article 19 of the Agreement.

I must say, in the first place, that an examination of the contents
and of the submissions of the Application and Memorial of the Re-
public of Cameroon does not reveal any claim regarding the annul-
ment of the plebiscite or the reconsideration of the agreement by
which the General Assembly terminated the Trusteeship in respect
of the Northern Cameroons. The reference to the nullity of the
plebiscite that is made in the White Book was not reproduced in
the pleadings laid before the Court.

156
JUDG. 2 XII 63 (DISS. OPIN, JUDGE BUSTAMANTE) 168

This fact being established, it must be noted that by its very
nature and in the literal meaning of those chapters of the Charter
which relate to the subject, the system of trusteeship is temporary
and transitory, for Article 76 (b) of the Charter, read with Articles
73 (b} and 87 (d) foresees its termination sooner or later. It goes
without saying that it would not be possible to fix beforehand in the
trusteesbip agreements a date for the political emancipation of the
Territory or to determine the procedure by means of which the
extinction of the trusteeship must be achieved, for everything will
depend upon the special circumstances in each territory. It is for
this reason that the text of the Charter did not lay down general
or rigid provisions to settle in each case the time for the extinction
of the trusteeship nor the methods to be applied. But it is precisely
on that ground that a reasonable interpretation of the Charter
justifies the presumption that these details must be decided, when
the proper time comes, by the United Nations in agreement with
the Administering Authority. Even supposing, as is asserted by the
United Kingdom, that the recommendations made by the General
Assembly with respect to these points are not binding upon the
Administering Authority, being mere recommendations, that is to
say before the said Authority has expressed its views thereon, it
would nevertheless be true that as from the moment when the
said Authority accepted those recommendations and began to apply
them in its capacity as the executive organ of the Trusteeship, a
legal bond between the tutelary State and the United Nations in
the case in question is created and the new function becomes
incorporated in the framework of the Trusteeship Agreement as
a legal obligation. In the present case, resolutions 1473 (XIV) and
1608 (XV) of the General Assembly were expressly accepted and
implemented by the United Kingdom. The operations provided for
relating to the preparation and holding of the plebiscite were thus
transformed into acts of administration of the Trusteeship for which
the Administering Authority was directly responsible: hence lia-
bility would be incurred should any incorrect conduct vitiate the
results of this consultation of the people.

(b) In the second place, it was argued by way of a preliminary
objection that the Federal Republic of Cameroon and all other
Members of the United Nations lost any right to complain of any
breach of the general obligations imposed upon the Administering
Authority by the Trusteeship Agreement on 21 April 1961, when the
General Assembly decided to approve the plebiscite and to terminate
the Trusteeship Agreement (resolution 1608 (XV)). The Cameroon-
ian Application dated 30 May 1961 thus proves to be belated and
misplaced.

It seems to me that this argument runs counter to the letter and
the intention of resolution 1608 (XV), in which it can be seen that the
General Assembly, though meeting on 21 April, decided on that date

157
JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 169

that the Trusteeship Agreement—and consequently the Trusteeship
itself—should not terminate for the Northern Cameroons until several
weeks later, namely on 1 June 1967, that is to say, two days after
the filing of the Application. The task of the Administering Authority
and its responsibilities thus continued to be in force for the United
Kingdom when the Application was filed. This objection of inad-
missibility must consequently be dismissed.

(c) In the third place, the United Kingdom asserts—using an
argument vatione temporis—the issues constituting the subject-
matter of the dispute must not be prior to 20 September 1960, when
the Republic of Cameroon was admitted as a Member of the United
Nations, for that State cannot enjoy the advantages of the judicial
protection accorded to Members of the Organization in relation to
issues which relate to periods when the Applicant would not have
been entitled to appear before the Court. Nor would the Court have
had jurisdiction to give judgment.

This contention interprets Article 19 of the Agreement in a res-
tvictive way which is not in conformity with the literal text of the
provision. According to the terms of Article 19, the Court’s juris-
diction extends to—

“any dispute whatever which should arise between the Administering
Authority and another Member of the United Nations”.

Having stated this text it is now necessary to interpret it in accord-
ance with the natural meaning of the words. The Article does not
take into account the dates of the facts which gave rise to the
dispute in connection with the date of the admission of the Mem-
ber State to the United Nations. It is solely the capacity of Member
which gives the newly joined State the same rights as other Member
States in the matter of taking legal action. If the dispute has
arisen in regard to the interpretation or application of a treaty—
as 1s the case here—it is presumed that the facts which gave rise to
the dispute can have taken place and occurred at any time during
the existence of the treaty. Were it otherwise, the Applicant State
could not fulfil its task of watching over the integrity and fidelity
of the treaty. It is certainly not inappropriate here to quote a
sentence from the Judgment in the Mavrommatis case:

“... in cases of doubt, jurisdiction based on an international agree-
ment embraces all disputes referred to it after its establishment”.
(P.C.1.J., Series A, No. 2, p. 35.)

If—from another aspect—the juridical person which raises the dis-
pute does so in its dual capacity as Member State of the United
Nations and independent State representing an individual or
special legal interest in the case, it is none the less true that that
State may demand the investigation of facts prior to its political |

158
JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 170

emancipation, seeing that an undeniable link of dependence, a
sort of successive solidarity, exists between the actual situation
on the date of the Application and the events which previously
played their part in bringing about that situation during the
period of the trusteeship. It is difficult to think of the whole pro-
cess of the Administering State’s conduct during the trusteeship as
being divided into watertight or non-communicating compartments.
A certain parallel may be found, in this connection, in the field of
private law if one recalls the case of an infant who, on achieving
full age, seeks to examine his guardian’s acts of administration
during his minority.

The assertion of inadmissibility ratione temporis is thus, in my
view, not admissible.

(d) In the fourth place, in the opinion of the United Kingdom,
the Application and the Memorial of the Federal Republic of
Cameroon do not in any way conduce to any practical effect, as
they are limited to asking the Court to “‘state the law” regarding
the points set out as the subject-matter of the dispute, without any
request for material reparation, restitution, etc., having been for-
mulated. In other words, supposing that a dispute does exist, the
United Kingdom points to the lack of any legal interest impelling
the Applicant to ask not only for declaration of its rights but also
for the material re-establishment of the legal position which has
been infringed. It is therefore claimed that this is an unreal dis-
pute, a moot, which in no way resembles disputes of a normal
kind. Such a dispute is said to have no practical reason. In this
connection—adds the United Kingdom—it could well be maintained
that—the Cameroonian Application constitutes a request for an
advisory opinion or is aimed at the staging of an academic debate,
but in no case can it be considered as subject-matter for a judgment
properly so called on the part of the International Court.

The admissibility of a declaratory legal action at the interna-
tional level is recognized in advance in paragraph 2 of Article 36
of the Statute of the Court (sub-paragraphs (a), (b) and (c)). Even
though the present case does not relate to an action where jurisdic-
tion is founded upon the optional clause or upon a special agree-
ment, it is nevertheless true that the description of matters within
the jurisdiction of the Court contained in paragraph 2 constitutes
a statement of general application from which the cases covered
by paragraph 1 can also benefit. Furthermore, the doctrine of the
admissibility of Applications to the Court for judgments of a merely
declaratory nature is well known in the case-law of the Interna-
tional Court; IJ therefore feel that it will be sufficient to refer to
this case-law, several pertinent examples of which are cited in the
file (for instance, the Corfu Channel case), as a ground for dismiss-
ing the objection raised. Let us further consider the question
concretely.

159
JUDG. 2 XII 63 (DISS, OPIN. JUDGE BUSTAMANTE) I7I

The Application of Cameroon asks the Court to give a decision on
the question whether certain acts or attitudes of the United King-
dom, as Administering Authority, are or are not in accordance
with the law, i.e. with certain provisions in the Trusteeship Agree-
ment. The Application also asks the Court to give a decision as to
whether the United Kingdom has contravened the law by refrain-
ing from giving effect to certain precise decisions of the General
Assembly of the United Nations relating to the administration
of the Trust Territory. The grounds of law and fact on which these
requests are based were specified by the Applicant in the Applica-
tion, in accordance with the Rules of Court. This is therefore a
legal controversy falling under Chapter II of the Statute.

In my view, the character of a request for an advisory opinion
must not be attributed to this controversy about the law. The
differences are quite clear. In the majority of cases opinions are
concerned with making provision for future situations: they are
opinions sought from the Court in order to be better informed as
to how the law must be applied in the future in particular cases
which have not yet occurred. In contentious proceedings, on the
other hand, cases submitted for decision by the Court almost al-
ways relate to the past: they are aimed at obtaining a decision as
to the legal effect of acts already committed by the respondent.
It is true that, exceptionally, there are advisory opinions which
refer to past situations (see the case concerning Certain Expenses
of the United Nations, 1962); and there are also, above all in the
case-law of individual countries, circumstances in which a declara-
tory judgment can be sought in advance in order to find out whether
what one of the parties considers his rights will or will not be con-
sidered as such in a future bilateral situation. But here there is a
second difference of capital importance between an advisory opin-
ion and a judgment of the Court, namely that the former is in
no way binding upon those concerned, the opinion given having
only moral authority, while the second imposes upon the parties
a legal obligation having the force of ves judicata. In the present
case, the judgment sought by the Republic of Cameroon has the
characteristics of a contentious judgment.

The argument of the United Kingdom will be recalled: admit-
ting—it states the hypcthesis that a dispute exists between the
Parties, what would be the practical purpose of a mere statement
of the law regarding such dispute? What would be the effect of
the Court’s judgment with respect to the principle of ves judicata
if there be no judicial decision specifying tangible obligations to
be fulfilled by the losing Party? The Written Observations of
Cameroon and Counsel for Cameroon in his oral argument re-
plied to these questions raised by the Respondent Party. So far as
Iam concerned, I feel that the reasoning advanced by the Appli-
cant in this respect is satisfactory, for it is certainly true that the
points raised in the Application are susceptible of a decision entail-

160
JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 172

ing practical results. In declaratory suits, the pure and simple
definition of the law, in favour of one or other of the parties, con-
stitutes in itself a yudgment which goes beyond the purely specu-
lative or academic field and gives the successful party a truly ob-
jective element, namely the adjudication of a right with which
what I call his “legal assets” are enriched, that is to say, the whole
sum of rights which that party possesses in its capacity as a legal
person. If the applicant succeeds, it is precisely the fact of ensuring
to him the possession of the property or right in a final and irre-
versible manner, in virtue of the principle of res judicata, which
constitutes the practical reparation awarded to the successful
party by the declaratory judgment. If it is the respondent who
appears in the judgment as the successful party, his legal position
is consolidated and all the matters of complaint in the application
become without foundation, the effect of the judgment being a
public rehabilitation. In the case of the losing party, a certain
deterioration or diminution takes place in its personal legal situ-
ation under the influence of the ves judicata, the two elements of
this diminution being the obligation to accept without the possibility
of objecting thereto the decisions contained in the judgment and,
in certain cases, the obligation to discharge the responsibilities,
which may result from the court’s statement of the law. All these
effects of a declaratory judgment become evident to the outside
world in a concrete and perceptible fashion and take their place
within the field of social or international life beyond any purely
moral or individual confines.

It is not for judges to speculate as to what will be or may be
all the other material or tangible aims which are sought but not
expressed by the Applicant at the time of drawing. up its Appli-
cation: it is well known that usually the statemént of the law in a
declaratory judgment can be the basis, the point of departure,
for other legal actions or other economic or political steps con-
nected with the legal consequences of the judgment. Counsel for
Cameroon gave an explanation in this regard. But this concerns
only the Applicant. What is essential, I repeat, is that, in my view,
the decision which has been asked of the Court in this case was
not merely advisory or academic nor simply abstract or theoreti-
cal and still less devoid of any real effect. All that was asked for
was a Judgment as to whether—as a consequence of certain facts—
there has or has not been an infringement of certain clauses of a
treaty in force between the Parties (Article 36, para. 2, sub-para.
(c), of the Statute). In my opinion this Application is admissible.

{e) In the fifth place, although the Application and the Memo-
rial do not mention any infringement of Articles 3 and 7 of the
Trusteeship Agreement on the part of the Administering Authority,
the United Kingdom’s defence pointed out that a reference to this

I61
JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 173

subject had been made belatedly in the Written Observations of
Cameroon on the United Kingdom Counter-Memorial. The Attor-
ney-General drew the Court’s attention to this point for, being a
new matter of complaint submitted belatedly, the Court, he
claimed, could not entertain it, still less give judgment upon it.
It is a question of formal procedural admissibility.

It seems to me that a wrong view was taken by the Respondent
as to the initial omission of a reference to Article 3 of the Agree-
ment. Although it was not referred to explicitly in the Application
or the Memorial, it is impliedly mentioned there. In fact, Article
3 of the Agreement does not impose any concrete or special obliga-
tion, but rather a general obligation on the Administering Author-
ity to administer the Territory with a view to achieving the basic
objectives of trusteeship laid down in Article 76 of the Charter
and to collaborate with the United Nations in the discharge of
the functions assigned to that Organization by Article 87 of the
Charter. It goes without saying that if the Application imputes to
the United Kingdom, as Administering Authority, the violation
of Articles 5 and 6 of the Agreement, which relate to concrete
obligations of the Administering Authority with a view to achieving
the aims of the trusteeship, it must be deduced therefrom that
the United Kingdom also infringed the provisions of Article 3,
which is general and the text of which covers the substance of
other Articles of the Agreement which were relied upon by the
Applicant.

In the same way, if the Administering Authority accepts as
part of its tutelary functions a recommendation by the United
Nations concerning the administration of the trusteeship, this accep-
tance obliges it to give effect punctiliously to the instructions of
the Organisation within the meaning of Article 7 and the second
part of Article 3 of the Trusteeship Agreement. Seeing that the
Federal Republic of Cameroon asserted in its Application that the
United Kingdom did not fulfil certain obligations flowing from reso-
lution 1473 (XIV) of the General Assembly, which was adopted
with the consent of the United Kingdom, it would follow that
an infringement of Article 7 of the Trusteeship Agreement might
have taken place. It is true that the Application did not mention
the number of the Article in question, but it took account of its
contents.

I conclude therefrom that the formal objection of inadmissibility
advanced by the United Kingdom with respect to this part of the
Applicant’s statement of complaints is without foundation.

(j}) In the sixth place, the Preliminary Objections of the United
Kingdom include a final point which, however, the Attorney-
General did not press during the oral proceedings. But I cannot
avoid mentioning it, the more so in that this point relates in a cer-
tain way to the admissibility of the Application. I have in mind
the allegation that the Application and the Memorial were not

162
JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 174

drafted in accordance with Article 32 of the Rules of Court, for,
contrary to the provisions of that Article, the statement of the
facts and the grounds in these pleadings is said to be vague and
abstract. The claim is accordingly said to become inadmissible.

But the wording of the Application and the Memorial of Cam-
eroon shows, nevertheless, that the facts mentioned by the Appli-
cant as constituting infringements of the Trusteeship Agreement,
and also the legal provisions applicable, were stated with sufficient
precision and in sufficient detail. The fact that the final submis-
sions in the Application asked the Court to give judgment upon
“certain obligations”, without specifying them in a concrete man-
ner, is easily explicable seeing that the word “certain” was obvi-
ously used with reference to the obligations previously specified
in the body of the text. In my view, there has been no infringe-
ment of Article 32 of the Rules of Court.

g. The time has now come to examine the final condition im-
posed upon the Parties by Article 19 of the Trusteeship Agreement
in order that any dispute relating to the interpretation or appli-
cation of its clauses may be submitted to the Court. Article 19
provides that the dispute must be such as cannot be settled by
negotiation or other means. One of the United Kingdom’s objec-
tions relates to this issue.

It is first maintained by the United Kingdom in this connection
that no real attempt was made before the Application to settle the
dispute (if dispute there be) by means of negotiation. In this con-
nection, I should like to refer to one of the paragraphs above where
reference is made to the memoranda, dated 1 and 26 May 1961
respectively, exchanged between the Government of Cameroon
and the Foreign Office. I stated there that these documents con-
tain all the elements of a proper and sufficient diplomatic nego-
tiation wherein the subject-matter of the dispute is set out in
detail by Cameroon and an amicable proposal is made to submit the
dispute to the International Court of Justice. The United King-
dom reply rejects the imputations made against it in respect of
matters the responsibility for which, in its opinion, lies not with
the Administering Authority but with the United Nations; and
it also declines to accept judicial settlement of the matter. The
existence of negotiation cannot be denied. These documents fur-
thermore show by their terms that diplomatic negotiation failed,
which amounts to saying that the impossibility of reaching an
amicable settlement was certain. Moreover, the impossibility of
negotiating a settlement other than a judicial one with the United
Kingdom follows from the fact that after the date of resolution
1608 (XV) a direct solution of the dispute did not come within the
control or the sole decision of the United Kingdom Government,
seeing that at that stage in the events it did not have the power
by itself to alter a state of affairs created—with its assent—by

163
JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 175

a resolution of the General Assembly of the United Nations.
The dispute was thus not one that could be settled by friendly
negotiation,

There was, according to the United Kingdom, a second con-
dition. Diplomatic negotiation having been ruled out, there might
have been—in the words of Article 19—some “‘other means” by virtue
of which the dispute could have been settled. And, in the United
Kingdom view, this “other means” of settlement was resolution
1608 (XV) of the General Assembly of the United Nations of 21
April 1961, which, at the same time as it ratified the result of the
plebiscite held on 11 and 12 February to decide the fate of the
Northern Cameroons, put an end to the situation of Trusteeship
and consequently settled the problem of that territory, a judicial
solution being thereby precluded.

It seems to me difficult to admit that resolution 1608 (XV) could
have had this result. For this to be possible it would have been
necessary for there to be complete identity between the points
raised in the Application and forming the subject-matter of the
dispute, and the points which formed the subject of the General
Assembly resolution. A comparison of the two documents, how-
ever, Shows a marked difference. Whereas the former—the Appli-
cation—clearly revealsits legal nature, the second—resolution 1608
(XV)—-emphasizes its political aim. The aims of the one and of the
other are altogether distinct. As has already been stated, the resolu-
tion of the General Assembly confirmed or legalized the results
of the plebiscites in the two Cameroons, Northern and Southern,
and decided that the regime of the Trusteeship under United
Kingdom administration should come to an end on two later dates.
The Application and the Memorial of the Republic of Cameroon
seek to establish the individual responsibility of the United King-
dom as Administering Authority for the Northern Cameroons,
with regard to certain acts and matters concerned with its adminis-
tration of the Trusteeship while it lasted. It would not be nght to
confuse or identify these two fields of application. That is why, in
my opinion, it is far from being correct to say that resolution 1608
(XV) settled the dispute by way of ‘another means” of settlement.
What is true is that the voting of resolution 1608 (X V)—the contents
of which did not provide satisfaction for the Applicant’s interest—
finally gave form to the still nascent dispute between Cameroon
and the United Kingdom, and precipitated the filing of the Apph-
cation.

But there is another still stronger reason for declining to con-
sider resolution 1608 (XV) of the General Assembly as the “other
means” of settling the dispute referred to in Article 19 of the Trus-
teeship Agreement. The most elementary requirement of logic
demands that, for such “‘other means” to be legally valid and effec-
tive, it must include as one of its constituent features the inter-
vention and consent of the disputing States, namely in this case,

164
JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 176

the Federal Republic of Cameroon and the United Kingdom. That
is why I think that, in the intention of the Trusteeship Agreement,
the mention which is made of ‘other means” of settlement is a
reference to the means of peaceful settlement specified in Article
33, paragraph 1, of the Charter (enquiry, mediation, arbitration,
etc.), all of which are characterized by the mutually agreed par-
ticipation to a greater or lesser extent, of the two parties in the
process of settlement. That is precisely what was lacking in resolu-
tion 1608 (XV) of the Genera] Assembly, which was adopted without
the consent and even against the vote of the Republic of Cameroon.
Seeing, moreover, that this resolution dealt with subjects other
than those which constituted the dispute with the United King-
dom, the action of Cameroon, with regard to the dispute itself,
was not directed against the binding effects of resolution 1608
(XV). The latter having exhausted administrative or institutional
means, and in view of the consequences that the Assembly’s
decision was going to produce both with regard to the interests
of the Republic of Cameroon and also with regard to the inhabi-
tants of the Northern Cameroons, the Applicant decided to follow
the other course which was open to it under Article 19 of the Trus-
teeship Agreement, invoking the judicial safeguard with a view
to obtaining, with the administering State, a judicial decision
based on law on the issue of the legal responsibilities deriving
from the facts. This is a case therefore not of any attitude of
rebellion or disobedience in respect of resolution 1608 (XV), but
of the legitimate use of another parallel recourse expressly recog-
nized in Article 19 as cited above.

xo. This reasoning, however, gives rise to another observation
of capital importance on the part of the United Kingdom because,
according to that country, if the Application of the Republic of
Cameroon is, notwithstanding resolution 1608 (XV) of the General
Assembly, to be submitted to the Court, this would in fact amount
to establishing a sort of superior Court, and to a veritable revision
of the decisions of the United Nations by the Court, which would
destroy all the authority of the organs of the international Organ-
ization. This kind of dependence or subordination of these or-
gans in relation to the Court would not be in conformity with the
spirit of the Charter. According to the Charter, the resoiutions of
the General Assembly, when adopted by the necessary majority
in each case, are definitively binding, even upon Member States
who have not voted for them. This observation leads the United
Kingdom to dismiss what was called the “duplication” theory
according to which the two means, administrative and judicial,
can be utilized to settle issues raised in the United Nations.

Considered from a concrete point of view and in relation to the
present case, this observation of the United Kingdom is not in
accordance with the actual facts. The Application of the Federal

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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 177

Republic of Cameroon does not seek the waiving of resolution
1608 (XV) or the annulment of the plebiscite in the Northern
Cameroons, or the re-establishment of trusteeship for that Terri-
tory. There were even during the oral proceedings explicit state-
ments by the Applicant Party to this effect. What the Application
asks for is a statement of the law by the Court on the question
whether, in the light of the wording of the Trusteeship Agreement
of 13 December 1946 and of resolution 1473 (XIV) of the General
Assembly, the United Kingdom, in its capacity as Administering
Authority for the Northern Cameroons, has or has not committed
infringements of certain provisions concerning the application of
that Agreement or of that resolution. From this statement of the
Application a number of conclusions can be drawn:

First: the legal action is not aimed at the United Nations nor
does it call in question any of the resolutions of the organs of that
Organization.

Second: the Republic of Cameroon’s action is directed against
the United Kingdom in its capacity as the individual State en-
trusted with the administration of the Northern Cameroons under
the Trusteeship.

Third: the Application relies on the principle of the responsi-
bility of States as juridical persons of public law for the per-
formance of acts the object of which is the application of inter-
national convention freely entered into.

Fourth: in the event of its case being declared well founded,
Cameroon has not asked the Court to make any actual order which
could bring about a change in the present actual situation in this
case, nor to award any material compensation: the Application
is thus confined to asking the Court to ‘state the law” in the
manner of a declaratory judgment.

It seems to me that these considerations are in themselves
sufficient to rule out the fear that the authority of the United
Nations might be affected or diminished by a judgment of the
Court settling the present case. No conflict need be contemplated be-
tween the two powers.

It remains to examine the question from the general aspect
and from that of principle and in the light of the terms of the
Charter of the United Nations. The oral proceedings in the present
case provide us with abundant material in this connection. To
sum up in a couple of words: although the concept of law is not
foreign to the administrative activities of official institutions—in-
cluding the organs of the United Nations—resolutions of this kind
are primarily of a political nature and do not always reflect a
scrupulous adaptation of the rules of law to political requirements.
In the legal sphere, on the other hand, it is exclusively the law
which dictates its norms.

rc

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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 178

So far as concerns international institutions, their statutes
define the scope and force of their administrative resolutions
and the way in which they are to be amended or revised. In the
Charter of the United Nations there is not to be found, with re-
gard to the resolutions of the General Assembly, any provision ex-
cluding all judicial jurisdiction. On the contrary, the general pur-
port of the Charter seems to me to reveal a certain parallelism and
a clear compatibility of the two institutions.

There is indeed one outstanding idea to be found in the text
of several Articles of the Charter in regard to the paramount im-
portance of law and of the legal administration of justice between
nations for the purposes of preserving the world from war and
achieving the supreme goal of international peace. Starting with
its preamble, the Charter proclaims the faith of the peoples of
the United Nations “im fundamental human rights’: and in “the
equal rights. of nations large and small”. In Article 1 the Charter
lays down as one of the purposes of the United Nations “respect
for the principle of equal rights! and self-determination of peoples!
.. encouraging respect for human rights+ and for fundamental free-
doms! for all”.

Article 2 mentions as one of the principles of the Organization
and its Members that they shail “fulfil in good faith the obliga-
tions? assumed by them in accordance with the present Charter”
and ‘‘shali settle their international disputes by peaceful meanst in
such a manner that international peace and ... justice are not en-
dangered’’. Articles 7 and 92 mention the International Court
of Justice as one of the principal organs of the United Nations
and state that its Statute forms an integral part of the Charter.
Article 33, paragraph 1, stipulates that:

“The parties in any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security,
shall! first of all, seek a solution by negotiation ... arbitration,
judicial settlement *”, etc.

Article 73 of the Charter lays down the premise that ‘the adminis-
tration of territories whose peoples have not yet attained a full
measure of self-government’’ constitutes a responsibility of the
administering States and mentions the fact that the Members
“recognize the principle that the interests of the inhabitants of
these territories are paramount”, and that the protection of them
is accepted as a “‘sacred trust”. Article 76 specifies the basic objec-
tives of the Trusteeship system, amongst which it once more men-
tions “‘respect for human rights and for fundamental freedoms’.

As for the Statute of the International Court of Justice, Article
35 provides that “The Court shall be open to the States parties
to the present Statute”, that is to say, to all the Member States

1 My italics.
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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 179

of the Organization. Lastly, Article 36 determines the scope of the
Court’s jurisdiction, which can be based on agreement between
the parties, on the express provisions of the Charter or on treaties
and conventions in force.

This enumeration reveals the importance attributed by the Char-
ter to the concepts of law, justice and the responsibility of States
in respect of their legal obligations, and it shows the way inwhich
it was sought to extend the jurisdiction of the International Court
of Justice. It would be no exaggeration to say that the function
of the Court was regarded by the founders of the United Nations
as constituting one of the most striking guarantees for the oper-
ation of the new international system.

It would be impossible to reconcile this criterion of the Charter—
entirely in favour of legal solutions—with the complete exclusion
of the judicial safeguard in cases in which the General Assembly
decided upon the fate of trust territories. The administrative de-
cision with regard to the political future of such a territory is
one thing, the definition of the responsibilities which, on the legal
plane, may be held to be binding upon the administering State in
respect of the way in which the trusteeship is exercised is something
quite different. The Administering Authority is not there merely
to execute automatically the orders of the General Assembly, it
is a legal entity which has freely and voluntarily accepted its
task, which may formulate observations and reservations with
regard to the Assembly’s agreements, which may indeed discharge
itself of the trust if such agreements conflict with its views and
which must, where appropriate, account for its actions to those
having a legal interest therein.

Moreover, it must be remembered that having regard to the
composition of the United Nations and its character as a supreme
world institution on the political plane, no means of judicial action
against the institution itself is provided for in the Charter and,
consequently, no institutional responsibility can result therefrom
in respect of its acts as an institution. But the case is entirely dif-
ferent as regards Member States considered individually. They
act within the institution as juridical persons and are as such re-
ponsible to third States in respect of their conduct. I believe that
that is precisely one of the reasons for which, so far as relations
between States are concerned, the Charter created the judicial
safeguard which the Court is called upon to apply. In the particu-
lar case which is the subject of the present proceedings, obliga-
tions and responsibilities are provided forin the Trusteeship Agree-
ment accepted by the United Kingdom and relating to the Northern
Cameroons. Since Article 19 of that Agreement provides a juris-
dictional clause for the determination of such responsibilities, I
believe it to be my duty as a Judge to decide in favour of juris-
diction.

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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 180

The judicial guarantee is, in truth, one of the most important
pillars of modern society. It means the primacy of law over other
factors: interests, negligence, abuse or force. It gives force to the
principle of responsibility as a regulating element in social and
international conduct. It can prevent further transgressions in the
future. In short, it constitutes a manifold guarantee the purpose
of which is to state the law when it requires to be stated: either to
prevent deviation in the application of the law, or to correct it
when it occurs; to adjudicate upon breaches of the law or to estab-
lish the responsibility of the offender; a whole mosaic of powers
covering all international activities: the conduct of governments,
the policies of States, the administrative acts of the great inter-
national institutions. It is certainly for this reason that the juris-
dictional clause (in this case Article 19 of the Trusteeship Agree-
ment) does not restrict action by States Members of the United
Nations by limiting the scope of the judicial protection which it
affords, and likewise does not require that the previous consent of
the Organization should be given to a Member State which pro-
poses to avail itself of it. Tosum up what [have said, it seems to me
that Article 19 is an expression of this supreme and indeed univer-
sal guarantee for the claiming in the last resort of a decision of a
court of justice to settle in law cases or political requirements or
interests of any other sort which are capable of causing legal
injury to third parties. It is important that this safeguard, which
is as necessary as it is useful, should not be weakened.

It is regrettable that, on the basis of the suggestion which was
at one time made by the General Assembly of the United Nations,
a request for an advisory opinion was not made with regard to
the various questions relating to the administration of the Trust
Territory of the Cameroons. But this opportunity having been
lost, it only remains for the Court—at the present stage of events
to deliver its Judgment on the Application of the Republic of
Cameroon in accordance with Article 19 of the Trusteeship Agree-
ment. And I must say that in my opinion the Objection based on
“duplication” cannot be upheld.

11. The examination which I have just undertaken of the
various Objections raised by the United Kingdom to the Appli-
cation of the Federal Republic of Cameroon reveals that some re-
late to the admissibility of the claim and others to the jurisdiction
of the Court, although the two categories are not clearly indepen-
dent or distinct, for certain Objections expressed on the basis of
inadmissibility also involve a denial of jurisdiction. Looked at
from another angle, there are some Objections which relate to
simply formalistic or procedural aspects, while others, on the other
hand, touch upon the very substance of the dispute and base upon
it the inadmissibility of the claim. That is why the Objections of
the United Kingdom as a whole at certain times take on a complex

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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 181

and even inextricable appearance. Nevertheless, [ have come to
the conclusion that all the Objections are really properly called
preliminary, as the Respondent has termed them, in the sense
that I have not in practice found it necessary to reach a decision
upon the merits of the dispute for the purpose of examining the
admissibility or the non-admissibility of any particular Objection.
It is for these reasons that I have not found it indispensable to
reserve some of the Objections, as being peremptory ones, for the
final judgment on the merits, in the event of the Court’s holding
that it has jurisdiction.

12. But even if an examination of the Objections raised had
led the Court to consider the case put forward in the Application,
there is a further question which was raised by the Court, namely
whether ‘‘the Court, when seised ... is ... compelled in every case
to exercise” its “Jurisdiction”, or whether, having regard to cer-
tain ‘inherent limitations on the exercise of the judicial function”
it should refrain from adjudicating in the present case. After an
analysis of the relevant pleadings (Application, Memorial, Obser-
vations on the Objections, Submissions) ‘‘to determine whether
the adjudication sought by the Applicant is one which the Court’s
judicial function permits it to give’, the prevailing opinion was
that the true intent of the claim was to impugn the injustice of the
attachment of the Northern Cameroons to a State other than the
Republic of Cameroon, this injustice being due to the fact that
the United Kingdom, as Administering Authority, allegedly created
such conditions that the trusteeship led to that attachment. Since,
however, the Federal Republic expressly stated that it was not
asking the Court to redress the alleged injustice or to award repar-
ation of any kind, nor to review the decisions of the General
Assembly, it is said that the Court is relegated to an issue remote
from reality and asked to give a judgment not capable of effective
application. It may be inferred—it is said—that what the Applicant
wants is that the Court should consider certain acts of the United
Kingdom solely for the purpose of arriving at conclusions con-
flicting with those expressed by the General Assembly in resolution
1608 (XV); but in spite of that the Applicant has itself recognized
that that resolution is definitive and irrevocable, and the judgment
of the Court could not, for these reasons, have any practical con-
sequences or fulfil a genuine judicial function. Moreover, since it
has been established that the Trusteeship Agreement was validly
terminated, it follows that the Trust itself disappeared, that any
rights conferred by that Agreement upon other Members of the
United Nations came to an end and that the possibility of the
application of Article 19 relating to the jurisdiction of the Court
ceased to exist on I June 1961, particularly if it be borne in mind
that the Application included no claim for reparation but merely

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JUDG. 2 XII 63 (DISS. OPIN. JUDGE BUSTAMANTE) 182

sought a finding of a breach of the law. The Court has, therefore,
decided to put an end to the present proceedings.

To my great regret, I am bound to express my dissent from these
views of the majority of the Court, because it seems to me that the
basis on which they rest is not correct. My point of view is, of course,
in agreement with the assertion that the claim is for nothing more
than a finding of a breach of the law, namely that the United King-
dom, in the application of certain measures, has failed to respect
certain obligations provided for in the Trusteeship Agreement or
certain instructions of the General Assembly. It is a case in which
the legal responsibility of the trustee must be clarified. I have
already explained in paragraph 8, sub-paragraph (d), of this Opin-
ion why and how this means of “stating the law’, which is the
characteristic of declaratory judgments, combines the merits of
practical effectiveness and binding force as res judicata, these two
characteristics representing the typical attributes of a judicial
decision. In my opinion, a decision of this kind is clearly included
in the function of the administration of justice which imprints
its features upon the judicial function of courts, as is provided
by Article 36, paragraph 2, sub-paragraph (c), of the Statute of
the Court. Precedents to this effect in similar cases are to be found
in the decisions of the Permanent Court and of the present Court.
(For example, the Polish Upper Silesia case, P.C.1.J., Series A,
No. 7; the Corfu Channel case, I.C.]. Reports 1949, p. 36.) In those
cases, as in the present case, the judgment or the claim related to
the past conduct of the Respondent, that is, to its legal responsi-
bilities.

It would not be right to contemplate including in any judgment
in the case any provisions designed to modify resolution 1608 (XV)
of the General Assembly such as the annulment of the plebiscite,
the detaching of the Northern Cameroons from Nigeria or the rein-
stitution of trusteeship. To do so would be to introduce into the
judgment matters not contained in the Application. It must be
recalled that the proceedings instituted by the Republic of Cam-
eroon were directed solely against the United Kingdom and not
against the United Nations and that the subject-matter of the
proceedings relates only to matters concerning the performance,
proper or incorrect, of the Trusteeship Agreement by the Respon-
dent, independently of any decisions taken by the General Assem-
bly. There is therefore no risk of the Judgment’s producing any
conflict between the Applicant and the General Assembly.

Although the Trusteeship Agreement for the Cameroons under
British Administration lapsed on 1 June 1961 as a result of reso-
lution 1608 (XV), the assertion that that Agreement can no longer
be relied upon for the purposes of judging the conduct of the Ad-
ministering Authority in the past appears to me to be too absolute
and contrary to generally recognized principles with regard to
the application of laws. One thing is essential in the present case:

17I
JUDG. 2 XII 63 (DISS. OPIN, JUDGE BUSTAMANTE) 183

that future situations should not be involved since these, clearly,
could not be governed by a treaty which had ceased to be in force.
The Application is concerned with past activities of the United
Kingdom, performed during the period of trusteeship. This retro-
spective situation can only be envisaged in the light of the rele-
vant law in force at that period, that is to say, the Trusteeship
Agreement of 13 December 1946. The fact that, shortly after the
formulation of the Application, the Trusteeship Agreement ceased
to be in force does not detract from the applicability of this prin-
ciple, for if the application of the Agreement were challenged, the
system of legal responsibility of persons would break down and
cases—entirely possible—of abuses or transgressions would pass with
impunity. The decisions of municipal courts and certain rules of
public law furnish useful examples which should not be disregard-
ed on the international plane. In many cases, the rules enacted in
a repealed Civil Code have been applied in cases of succession, when
the death of a testator occurred at a time when the Code was still
in force. Similarly, conflicts have arisen with regard to the uncon-
stitutionality of certain laws of which the text, to determine the
point, has had to be read in the light of the provisions of the Con-
stitution under which they were enacted, in spite of the fact that
that Constitution had already been replaced by a later Constitu-
tion or more than one subsequent Constitution. It seems to me
that in such cases, where the judgment must relate to a past situ-
ation, the duty of the Court is to place itself at the period of
the events which are the subject of the proceedings and to apply
the laws then in force, even though they should be no longer in
force. The Trusteeship Agreement of 1946 is accordingly properly
invoked for the purpose of resolving the present case.
*
* *

13. For the foregoing reasons, my opinion is that the claim is
admissible, that the preliminary objections of the United King-
dom are not well founded and that the Court has jurisdiction to
pass upon the merits of the Application of the Federal Republic
of Cameroon.

(Signed) J. L. BUSTAMANTE R.

172