90

SEPARATE OPINION OF JUDGE LAUTERPACHT

In the present case the General Assembly has asked the Court
for an Advisory Opinion on the question whether the special Rule F,
which, on 11 October, 1954, the Assembly adopted with regard
to the voting procedure to be followed by it in taking decisions on
questions relating to reports and petitions concerning the Territory
of South-West Africa is a correct interpretation of the Opinion
of the Court given in 1950 on the International Status of South-
West Africa. Rule F laid down that such decisions shall be regarded
as important questions within the meaning of Article 18 (2) of the
Charter, that is to say, that a majority of two-thirds shall be required
for their adoption. In the Preamble to its request the General
Assembly drew special attention to certain passages of the Opinion
of 1950. These passages are referred to below.

I have considered it incumbent upon me to append the present
Separate Opinion.for, while I concur in the unanimous Opinion of
the Court inasmuch as it gives an affirmative answer to the question
put to it, I do so on grounds and by a method substantially different
—and differing—from those on which that Opinion is based. On the
subject of method I find it necessary to devote some preliminary
observations to the question as to the legal issues which ought to
find an answer in the Opinion of the Court. This matter raises the
more general question of the character of the function of the Court
and the nature of its judicial pronouncements.

The present Opinion can be decided, in addition to what may be
described as the method of pure construction, by exclusive reference
to any of the following three legal questions :

(I) Inasmuch as the main issue arises from the contention of
South Africa that absolute unanimity was required for the decisions
of the Council of the League of Nations acting as a supervisory
organ of the Mandates System, the Opinion could be based on the
rejection of that contention as being unfounded in law. In that
case it might be said—though, as will be seen, not quite accurately—
that Questions (2) and (3) do not arise.

(2) It is possible to base the Opinion of the Court on the view
adopted by the Court that whatever may be the answer to the other
two questions the General Assembly is absolutely prevented from
acting by a method of voting other than that laid down in Art-
icle 18 of the Charter, and that for that reason it must be held, in
adopting Rule F, to have complied ‘‘as far as possible’ with the
Opinion of the Court given in 1950. If that view is adopted, it might
be said that Questions (1) and (3) need not be answered.

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QI ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

(3) It is possible to base the Opinion of the Court on the view
that as, unlike the decisions of the Council of the League, the deci-
sions of the General Assembly are not legally binding, Rule F
clearly does not imply any excess of supervision as compared with
that of the Council of the League and that therefore neither Ques-
tion (I) nor Question (2) need be answered.

Finally, and this is substantially the method followed by the
Court, it is possible to answer the question put to the Court without
primary reference to any of these questions but merely on the
basis of a construction of the relevant passages of the Opinion of
the Court of 1950.

In my view it is essential, having regard both to the circum-
stances of the case and to the objects of the judicial function of
the Court in general, that its Opinion should contain an answer to
the legal issues relevant to the case, especially when relied upon
by the Members of the General Assembly, including South Africa.

Thus with regard to Question (1}—namely, that arising out of the
contention of South Africa that the absolute unanimity of the
Members of the Council of the League was required for its Reso-
lutions relating to mandates—although the Court has come to the
conclusion that the relevant passage of its Opinion of 1950 does
not apply to the voting procedure, I consider that that argument
of South Africa ought to be answered in all requisite detail. It
ought not to be disregarded on the ground that it is irrelevant for
the reason that it is ruled out by what is described as the ordinary
and natural meaning of the words of the Opinion of 1950. For this
was the main argument put forward by South Africa in the course
of the discussions before the General Assembly and its Committees.
It was the question of the justification of that contention which
exercised Members of the General Assembly, which troubled their
consciences, and which was largely responsible for the request. for
the present Opinion. The circumstances of the case are such that
full consideration ought to be given to the principal legal argument
of the State which, as a mandatory, has put itself in opposition to
the repeatedly expressed judgment of the United Nations and
whose conduct has been the object of wide disapproval. For this
reason, although I do not accept this particular contention of the
Government of South Africa, I must consider it in detail.

The same considerations apply to what may be called the consti-
tutional issue as expressed in Question (2). The Opinion of the
Court is based on the view that the General Assembly is absolutely
precluded from acting by a voting procedure other than that laid
down in the Charter and that for that reason Rule F complies
with the Opinion of the Court, given in 1950, which laid down that
the procedure of the General Assembly must approximate to that
of the Council of the League ‘‘as far as possible”. It is possible to

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92 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

dispose of the entire issue by reference to the simple proposition
that the provisions of the Charter in the matter of voting are
mandatory and peremptory and that any modification of the
voting procedure of the General Assembly, designed to meet the
circumstances of the case, would constitute a violation of the
Charter or, more emphatically, that it would constitute a juridical
impossibility. But that proposition is controversial. Some previous
practice, to which reference will be made later, suggests the permis-
sibility of a different voting procedure if an extraneous instrument
so provides—although the Court seems to have accepted the view
that there is no such instrument in the present case seeing that the
powers of the General Assembly are, it is said, derived from the
Charter and not from an extraneous instrument. That, too, is
controversial. Above all, it appears that the constitutional problem
as stated underlay a great deal of the debate before the General
Assembly and that most of its Members—as indeed does the
Opinion of the Court—were prepared to regard the constitutional
objection as decisive and sufficient. This being so, it seems to me
desirable that the solution of that aspect of the matter should not
be taken for granted or as being self-evident. For this reason,
having regard to conflicting considerations of principle and to
divergence of practice, I believe it to be my duty to examine fully
that aspect of the matter.

The same considerations apply, once more, to Question (3)—a
question by reference to which it may be possible to dispose of the
issue before the Court on the ground that the decisions of the
General Assembly are of no legal effect or of more limited effect
than those of the Council of the League. It is a ground by reference
to which—and mainly to which—it may be thought, as I do in
the present Opinion, that an affirmative answer can be given to
the question put by the General Assembly. For this reason I am
not at liberty to disregard that issue on account of any difficulties
or complications inherent in it. The absence, in general, of full
legal binding force in the Resolutions of the General Assembly is a
proposition so fundamental and so rudimentary that an attempt to
apply and to circumscribe it need not be regarded as dangerous or
unhelpful. I cannot disregard that aspect of the matter on the
alleged ground that the Court cannot answer this—or any other
legaf question—incidental to the Opinion, seeing that the General
Assembly has not. specifically asked for an answer to these ques-
tions. The General Assembly ‘has asked only one substantive
question ; that issue, and that issue only, is answered in the opera-
tive part of the unanimous Opinion of the Court. Clearly, in order
to reply to that question, the Court is bound in the course of its
reasoning to consider and to answer a variety of legal questions.
This is of the very essence of its judicial function which makes it
possible for it to render Judgments and Opinions which carry

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93  ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

conviction and clarify the law.

For these reasons I cannot attach prominent—and certainly not
exclusive—importance to what may be described as the “mere
construction” point of view, such as that implied in the argument
that the question of voting is not at all germane to either of the
two crucial passages of the Opinion of the Court of 1950, namely,
those relating to ‘‘degree of supervision” and “procedure” of the
Council of the League. It is possible to hold the view that there
is an implied reference to voting procedure in both these expres-
sions ; it may be held that such reference is implicit only in one or
only in the other of these expressions ; and there is room for the
view, which finds some support in the Opinion of the Court, that
neither of these expressions contains any reference to voting. This
diversity of construction provides some illustration of the unrelia-
bility of reliance on the supposed ordinary and natural meaning
of words.

Neither, having regard to the integrity of the function of inter-
pretation, is it desirable that countenance be given to a method
which by way of construction may result in a summary treatment
or disregard of the principal issue before the Court. Thus it may
be said that, as according to the Opinion of the Court given in
1950, the General Assembly, acting under Article 10 of its Charter,
is to be responsible for the task of supervision, it cannot fulfil that
function otherwise than in accordance with its own procedure and
that by applying its voting procedure, deemed unalterable, it
approximates “‘as far as possible” to the procedure of the Council
of the League. However, this—the ‘“‘constitutional’’ issue—is one
of the principal questions before the Court. I would not feel justi-
fied in answering it—without adequate examination of available
pratice—by reference to assumed logical impossibility.

These considerations I believe to be in the highest interest of the
authority of international justice. They do not exclude the neces-
sity of basing the Opinion of the Court on, inter alia, a construction
of the texts before it.

* * %
Do the expressions “degree of super-
vision” and ‘procedure of the Council
of the League” refer to voting procedure ?

One of the main passages of the Opinion of 1950 which the Court
is now requested to interpret lays down two directives: (i) that the
degree of supervision to be exercised by the General Assembly
should not exceed that which applied under the Mandates System,

30
94 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

and (ii) that it should conform as far as possible to the procedure
followed in this respect by the Council of the League of Nations.

The expression ‘‘degree of supervision” has two meanings: it
signifies primarily the means of supervision. Thus it is clear that
the place assigned to periodic missions or to petitions in the System
of Trusteeship exceeds the degree of supervision adopted in the
Mandates System and that that means of supervision by the
United Nations cannot, without the consent of the Government
of the Union of South-West Africa, be applied to the Mandated
Territory of South-West Africa. This is a question of means of
supervision in their wider sense. The Court, whose Opinion is
requested on the question of voting, is not concerned with them.
However, the term “degree of supervision” covers also the methods
of ensuring compliance with the means thus adopted and, in
particular, the method of deciding whether the administering
authority has complied with them and what steps it ought to take
with that object in view. If the General Assembly were to be
enabled to take binding decisions on petitions and reports subject
to voting requirements less stringent than those obtaining in the
Council of the League of Nations—such decisions including request
for further information, expression of regret at or disapproval
of the action or inaction of the Administering Authority, and call
for the cessation of the action disapproved of—then the innovation
thus effected would appear to amount to a degree of supervision
exceeding that previously in force. This is so although on occasions
such decisions may amount to an approval or support of the action
of the Administering State—in which case it might be argued that
the less exacting vote implies a relaxation of the degree of super-
vision. However, the State subject to supervision is primarily
concerned with the potential interference with its freedom of action
by the supervisory organ. Thus viewed, the less exacting method
of voting adds to the stringency and the degree of supervision—
just as a change of the procedure of voting may add to the extent
of the obligations. If I agree to accept the obligation to pay taxes
in pursuance of unanimous decisions of a committee, then my
obligation is increased if the committee, by changing its procedure,
can impose taxation by a majority vote. This seems to be a propo-
sition of common sense.

My view, as expressed below, is that Rule F does not result in an
excess of supervision for the reason that the decisions of the Council
of the League did not require absolute unanimity and that, in any
case, the decisions of the General Assembly are not of the same
legal authority as the decisions of the Council of the League. But I
am not of the view that the Opinion of the Court ought to base the

31,
95 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

answer to the question put toit on the ground that the degree of super-
vision hasno relation to the question of voting. The procedure of voting
determines the degree of supervision. For even if we do not go to
the length—to the unwarranted length—of conceding that a valid
decision of the Council of the League of Nations acting as the super-
visory organ of the Mandates System could be prevented by a veto
of the Mandatory States, the fact remains that, according to the
contemplated Rule F, for the otherwise unanimous decisions of the
Council which included all the principal Powers that were Members
of the League, there is to be substituted a decision of two-thirds of
the General Assembly which may or may not include the vote of
any permanent Member of the Security Council, which may repre-
sent less than one-fourth of the budgetary contributions or less than
one-fourth or one-fifth of the total population of the Members of the
United Nations, and which acts by methods different from those
which characterised the Council of the League which, in turn, in
conformity with the entire political climate of the League, tended
to proceed, ultimately, by agreement rather than by counting of
votes. Neither is it altogether irrelevant that on the Council of the
League of Nations-that unanimity. or quasi-unanimity had the addi-
tional safeguard of being influenced by the reports and the point of
view of a commission of experts—for the Mandates Commission was
a commission of experts—of high standing and independent of
governments. The decisions of the General Assembly, which will
be reached according to the contemplated Rule F, will be formed
under the impact of the Committee on South Africa—a body whose
devotion and disinterestedness must not be questioned but which
is of different composition.

These factors are directly relevant fo the question of the “degree
of supervision”. This is not inconsistent with the fact that the second
part of the passage (‘‘and should conform as far as necessary to the
procedure followed by the Council of the League of Nations’’) also,
and more directly, refers to voting. Accepted usage includes voting
within matters of procedure. It is probable that, while the first
part of the passage refers to the major principle of not exceeding
the degree of supervision hitherto obtaining, the last quoted
passage is directed to the more specific problem of the approxi-
mation, as far as possible, of that, procedure to that obtaining
under the Council of the League of Nations. For these reasons
I am reluctant to admit that the ordinary and natural meaning
of words excludes the method of voting from the notion of
degree of supervision. There is no ordinary and natural meaning
of the term “degree of supervision” in the abstract. Its meaning
is not something which appears on the surface ; it is relative to the
situations and problems with which the Court is concerned. More-
over, it is relative to the legal issues directly connected with the
situation. Thus, assuming that the main South African contention

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06  ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

on the question of unanimity is correct, it would be reasonable
to assume that the expressions used by the Court with regard both
to “degree of supervision” and ‘‘procedure” were not used with
the intention of ignoring the legal position thus established. It
may not be profitable to regard the entire issue as non-existing
on the ground that the words used have a meaning which is fixed,
certain and immutable.

It is, of course, possible that the question of voting was not
before the mind of the Court when it gave the Opinion in 1950.
This does not mean that the procedure of voting is not an essential
element in the situation. On the contrary, it is for this Court,
confronted as it is with an apparent gap in the Opinion of the Court
of 1950 with respect to a situation which calls for clarification, to
fill the lacuna by all available means of interpretation. These do
not include the knowledge of any particular member of the present
Court as to the state of his—or his colleagues’—minds at the time
when the Advisory Opinion was rendered in 1950.

* * *

It is of importance, in this connection, to bear in mind the relation
between the two passages here discussed. In my view, of the two
conditions there prescribed, the first, relating to the degree of
supervision, is the governing directive of a substantive character ;
the second, which is qualified by the words ‘‘as far as possible”,
is, in terms, procedural. The question is whether the Opinion of
1950 can be properly interpreted in a way which would subject
the substantive rule to considerations of procedural conformity
and convenience. The question is whether such considerations can
properly be permitted to affect or impair the governing principle
laid down by the Court in 1950 according to which, in the absence
of agreement on the part of the Union of South Africa, the degree
of supervision by the United Nations must not exceed that exercised
by the Council of the League of Nations.

There is room for the view that the Union of South Africa is
legally entitled to resist any attempted extension of the scope of
its accountability and of the corresponding degree of scrutiny,
interference and supervision by the United Nations, even if such
extension is of a procedural nature, for instance, by way of a partic-
ular system of voting, so long as no conclusive proof has been
adduced that such extension is unavoidable on account of an imper-
ative necessity of relying on the procedure in force in the General
Assembly and unalterable in any circumstances.

The System of Trusteeship under the United Nations has not
replaced the Mandates System ; the latter remains in force so far

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97 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

as South-West Africa is concerned. As repeatedly stated in the
Opinion given in 1950 the continued exercise of the Mandate must
be subject to supervision surrounded by the same, but not greater,
obligations and safeguards as those which existed under the League
of Nations. Now the obligations of a country can be decisively
influenced by the voting procedure in respect of the decisions which
interpret and apply those obligations. When the Opinion of 1950
said, and reiterated, that the obligations of the Mandatory remained
unaltered, it did not mean only that South Africa continued to be
bound by these obligations and that she must not subtract from
them ; it meant also that these obligations ought not to be increased.
The continuation of the obligation must in all fairness be held to
work both ways. This seems to me to be the governing consider-
ation. In relation to it, the interpretation, however necessary, of
the terms ‘‘degree of supervision” and ‘‘as far as possible” seems
almost to assume the complexion of a technicality. In relation to
it, exclusive reliance on the supposed ordinary and natural meaning
of the expression ‘‘degree of supervision” as bearing no relation to
the voting procedure would seem to me highly questionable.

As I see it, the words ‘‘as far as possible’ do not mean that the
unqualified injunction against exceeding the degree of super-
visjon under the League of Nations is in fact qualified by the
obligation to follow ‘‘as far as possible’’—and only as far as possible
—the procedure of the Council of the League of Nations and that
if such approximation to that procedure is not possible having
regard to the voting procedure of the General Assembly of the
United Nations as laid down in Article 18 of the Charter, then the
degree of supervision must unavoidably be exceeded. The Opinion
of the Court rendered in 1950 did not say that the degree of super-
vision as it existed under the Mandates System must not be exceeded
provided that that is possible under the then existing voting proce-
dure of the General Assembly. On the face of it, the words “‘as far
as possible” may be interpreted as meaning that, within the frame-
work of compliance with the overriding prohibition of exceeding the
degree of supervision of the League of Nations and if there is a variety
of procedures available, that procedure must be followed which
corresponds more closely to that of the Council of the League of
Nations. For reasons stated elsewhere in this Opinion, I cannot
accept the view that the words ‘‘as far as possible” contained an
implied and imperative reference to an existing and unalterable
procedure of the General Assembly and that any such interpreta-
tion has the legitimate effect of overriding the basic prohibition
of extending the degree of supervision under the League of Nations
by dint of the statement that by adopting the rule of two-thirds
majority the General Assembly went “as far as possible”, i.e., as
far as is legally permissible under the Charter. That statement
must be proved by a rigorous and searching examination. Such
examination may show, as suggested in another part of this Separate

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98 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

Opinion, that it was legally possible for the General Assembly to
go somewhat further than does Rule F in complying with the
direction to approximate “‘as far as possible” to the procedure of
the Council of the League.

My own conclusions with regard both to construction and the
three main questions as formulated above are such that it is not
necessary for this Court to adopt an interpretation of the Opinion
given in 1950 which in my view would amount to saying that in
that Opinjon the Court laid down, as the result of an oversight
or otherwise, two mutually contradictory directives, and that,
by way of an implied reference to an unalterable voting procedure
of the General Assembly, it reduced to meagre proportions the
essence of its substantive ruling on one of the principal aspects of
its Advisory Opinion on the International Status of South-West
Africa.

Question 1: Did the Rule of Absolute
Unanimity obtain in the Council of the
League acting as a Supervisory Organ of
the Mandates System ?

I now come to the first of the three principal legal issues with
which the Court must properly be deemed to be confronted in the
present case: Does the contemplated Rule F correctly interpret
the Opinion of the Court inasmuch as it replaces by a less stringent
system the rule of absolute unanimity which, according to the
contention of the Government of South Africa, obtained in the
Council of the League of Nations in respect of its supervisory
functions under the Mandates System ? Did any such rule obtain
in the Council of the League of Nations ?

With regard to this question, I am unable td accept the contention
advanced by the Government of the Union of South Africa that
there is an inconsistency between the proposed Rule F and the
procedure foliowed by the Council of the League of Nations for
the alleged reason that the latter was based on the rule of absolute
unanimity, including the vote of the Mandatory State concerned.
This has been the principal view put forward by the Government
of South Africa in the matter. I have given reasons why it was
desirable that the Court should examine it in all its aspects.

Admittedly, the procedure of the Council of the League of
Nations was governed by the principle of unanimity not only of the
Members of the Council but of States who, though not ordinarily

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99 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

Members thereof, were invited to sit at its table in connection
with a matter under its consideration—a rule which applied also
to the representatives of the Mandatory State invited to take part
in the proceedings of the Council. However, having regard both
to principle and practice, as I interpret them, the ruling of the
Court given in its Twelfth Advisory Opinion on the Interpretation.
of the Treaty of Lausanne must be held to apply also to the question
with which the Court is now concerned. In that case, the Court
held that the principle which was enshrined in Article 15 of the
Covenant and which excluded the vote of the parties to the dispute
from the requirement of unanimity as a condition of the validity
of a recommendation made by the Council, was of general appli-
cation in so far as it embodied the “‘well-known rule that no
one can be judge in his own suit” (Series B, No. 12, p. 32).
That ‘well-known rule”, henceforth sanctioned by a pronounce-
ment of the Permanent Court of International Justice, must be
held to apply to the case in which an international organ, even
when acting otherwise under the rule of unanimity, judges in a
supervisory capacity the legal propriety of the conduct of a State
administering an international mandate or trust. The supervisory
organ may do so either directly by pronouncing a verdict upon
the conformity of the action of the administering State with its
international obligations or indirectly by calling upon it to adopt—or
desist from—a certain line of action.

In the absence of cogent proof to the contrary, there is no justifi-
cation for rendering legally permissible a situation in which a State,
bound by virtue of solemn international obligations to observe a
definite rule of conduct and to submit to the international supervi-
sion of its observance, is at the same time entitled to render, by its
adverse vote, such supervision nominal and ineffective. Undoubtedly,
international practice knows instances of States reserving for
themselves the right to determine the extent of their own obligation
and, in a sense, to remain judges in their own case. However,
unless such right is reserved in explicit terms, States which
thus attempt to avail themselves of their contractual capacity
for purposes alien to its primary purpose—which is the creation
of binding obligations—act at their peril. Such express reservation
of this exceptional right, obnoxious to legal principle and to tenets
of good faith, cannot be conclusively inferred from the mere fact
that the basic instrument provides for the rule of unanimity. It
could not, in particular, be inferred from the rigid wording of
Article 5 of the Covenant, which laid down that, unless expressly
provided to the contrary, the rule of unanimity should obtain.
For, in the absence of a clear provision to the contrary, that rule
is in itself qualified by the principle laid down by the Permanent
Court of International Justice in the Advisory Opinion on the
Interpretation of the Treaty of Lausanne. In that Opinion the

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100 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

Court considered this rule to be of general application for the
decisions of the Council when acting in a judicial or arbitral capacity.
Its ruling was not limited to cases brought before it by virtue of an
extraneous treaty. —

It must be conceded that the application of the principle nemo
judex in re sua to, what is in essence a controversy between the
mandatory and the otherwise unanimous Council constitutes an
extension of that principle as laid down by the Court. However,
the extension is more apparent than real. For the reasons stated
above, there does not seem to exist any solid ground for dinstin-
guishing between decisions taken in pursuance of the supervisory
functions of an international organ and decisions of a judicial or
arbitral nature such as that with which the Council of the League
was confronted in the matter of the determination of the boundary
between Turkey and Iraq. In all cases in which there is a difference
of opinion, brought to the point of a formal discordant vote, between
the supervising organ and the administering authority as to the
conformity of the conduct of the latter with its international
obligations, such difference has the essential elements of a dispute
as to the application of a binding international instrument.
In any such controversy the principle that no one is judge in his
own cause must be deemed to apply. To put it differently, there is
no valid reason for distinguishing, in connection with the applica-
bility of the principle that no one is judge in his own cause, between
the judicial and the supervisory organs. Both administer, in different
ways, a system of binding rules of conduct.

*
* *

I will now turn from principle to practice. The practice, as I read
it, of the League of Nations, does not conclusively support the view
that there was an invariable, or even predominant, tendency—in
cases in which a Member of the Council was itself a party to the
dispute—to attach literal importance to the seemingly rigid or
exhaustive provisions of Article 5 of the Covenant in the matter of
unanimity. On occasions, the principle of absolute unanimity, includ-
ing the votes of the parties to the dispute, was acted upon with some
rigidity. This occurred in two cases in connection with the applica-
tion of Article 11 of the Covenant, namely, in the dispute between
Poland and Lithuania in 1928 (Official Journal of the League of
Nations, 1928, p. 896), and, in particular, in the course of the Sino-
Japanese dispute in 1931 (Official Journal of the League of Nations,
1931, p. 2358). In both cases a resolution of the Council, assented to
by all its Members save one of the parties to the dispute, was formally
stated not to be binding. It may be observed that with regard to

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IOI ADVIS. OPIN. OF 7 VI 5§ (SEP. OP. JUDGE LAUTERPACHT)

the latter case, Professor Brierly, a writer of authority noted for his
restraint, stated that the interpretation of Article 11 then adopted
was ‘‘unexpected and doubtfully correct” (The Covenant and the
Charter, 1947, p. 15). Apart from these rare cases, the tendency was
either in the direction of an express amendment of these provisions
of the Covenant which, on the face of it, left room for the frustration
of an otherwise unanimous decision by a vote of an interested party
or in the direction of regarding such amendment as unnecessary and
of acting on the view that the principle nemo judex in re sua was
already an integral part of the Covenant. Thus, in 1921, the Assem-
bly recommended that, pending the ratification of an express
amendment of the Charter to that effect, the votes of the parties to
the dispute should be excluded in the voting on the question whether
a Member of the League had gone to war in breach of the Covenant
( Records of the Second Assembly, Plenary Meeting, p. 806). In 1922,
the Council seems to have proceeded in two cases on the view that
when acting in an arbitral or semi-judicial capacity it was bound to
exclude the votes of the parties for the purpose of ascertaining the
unanimity required by the Covenant. The first of these cases con-
cerned the claim of India to be included among the eight States of
chief industrial importance in connection with representation on the
Governing Body of the International Labour Organisation. In that
case, the Council endorsed and acted on the legal opinion submitted
to it by the Secretariat to the effect that ‘‘the Council would act in
this affair as arbitrator, and that India could not be both judge and
party to the case” (Official Journal, 1922, p. 1160). The case is of
special] importance in the present connection inasmuch as the Coun-
cil acted in an administrative rather than judicial capacity.
In the acute Greco-Bulgarian dispute in 1925, the Council, acting
in a private meeting in the absence of the representatives of the two
parties, prepared what was described as a “dictatorial request” for
acceptance by the parties who declared themselves ready to accept
the decision of the Council thus subsequently sanctioned by a unani-
mous vote (Official Journal, 1925, p. 1700). In the same year, in the
Hungarian Optants dispute between Hungary and Roumania, which
came before it under Article 11, paragraph 2, of the Covenant, the
Council accepted a recommendation by a unanimous vote exclusive
of the representatives of the parties after the President of the Council
stated that, in inviting the Council to pronounce itself on the
recommendation contained in the report, he “deliberately excepted
two members of the Council who are parties to the dispute” (1927,

P. 1413).

It would thus appear that the Twelfth Advisory Opinion of
the Court, in addition to being based on a general principle of

38
102 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

law of cogent application, was not without support in the practice
of the League, both prior and subsequent to the time when it was
rendered. It may be useful in this connection to draw attention
to the official publication of the Secretariat of the League of
Nations, entitled ““The Council of the League of Nations, 1920-1938”,
in which, on page 69, according to the view of the Secretariat, on
the question of the inclusion of the votes of the parties in deter-
mining unanimity “there is a certain division of opinion as to
whether the votes of the parties should or should not be counted’.
It has been maintained that whatever may have been the practice
of the Council of the League of Nations in the matter of international
disputes, in other spheres it strictly adhered to the principle of
_absolute unanimity. From this the conclusion is drawn that the
Mandatory State enjoyed a power of veto with regard to the super-
visory function of the Council. I am not persuaded of the accuracy
either of what is supposed to be the factual premise or of the conclu-
sion which is being drawn from it. An account of some of the practice
of the Council in this sphere is given in a paper prepared by the
Secretariat of the United Nations for the working group of the
Committee on South Africa and included as No. 39 in the file of
documents put at the disposal of the Court. There are other cases
to which reference will be made presently. My reading of the practice
as recorded is that, while there is no instance of a resolution of the
Council being formally declared adopted as against the opposing
vote of the mandatory State, there is, on the evidence, no authentic
and recorded instance of a contemplated resolution of the Council
being frustrated as the result of the adverse vote of the mandatory
State. A study of these cases, which were concerned with the
mandated territory of South-West Africa, shows that while in no
instance a resolution was adopted contrary to the express attitude
of the Government of South Africa, this was not necessarily so
bécause of any threatened exercise of the power of veto. In some of
these cases, that Government, after having stated its doubts or
objections, did not insist on them ; in two other cases the Council
modified an alternative text submitted by the representative of
South Africa : in the sixth case the Government of South Africa
eventually decided not to be represented at the resumed discussion
of the issue in question. The same solution was adopted by the
South African Government in some other cases, of which one relating
to the status of the South African Mandate calls for special mention.
In its Report, made in 1935, the Mandates Commission noted that
it had been informed by the Mandatory Power that the latter
had appointed a special Committee to study certain constitutional
problems raised by a motion of the Legislative Assembly of the
territory aiming at its incorporation as ‘a fifth province of the
Union”. The Report concluded with the following passage: ‘As
the guardian of the integrity of the institution of Mandates, the
Commission therefore expects to be informed of the Mandatory

39
103 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT).

Power’s views on the question, which it will not fail to subject
to that careful examination that its international importance
demands. The Commission wishes, on this occasion, to draw
attention to the Mandatory Power’s fundamental obligation to give
effect, not only to the provisions of the Mandate, but also to those
of Article 22 of the Covenant.” (League of Nations Oficial Journal,
1935, p. 1235.) The Report of the Commission on this and other
matters was adopted by the Council which instructed the Secretary-
General to communicate to the Mandatory Powers the observations
of the Commission and to request them to take the action asked
for by the Commission (ibid., p. 1148). The Government of South
Africa informed the Secretary-General that it would not be repre-
sented at the meeting of the Council. It may or may not be profit-
able to enquire into the reasons which prompted abstention from
participation in a decision which had a distinct bearing on an impor-
tant issue touching upon an essential aspect of the rights and duties
of the mandatory. At least on six other occasions the Government
of South Africa was not represented at meetings of the Council
at which Resolutions were adopted or discussions took place concern-
ing South-West Africa.

The fact which thus emerges with some clarity from a survev
ofthe practice of the Council of the League of Nations on the
subject is that it supplies no conclusive or convincing evidence
in support of the view that as a matter of practice the rule of
unanimity operated and was interpreted in a manner substantiating
any right of veto on the part of the mandatory Power. It would
probably be more accurate to say that, assuming that it existed
during the initial period of the functioning of the League, that
Tight fell into desuetude and lapsed as the result. Undoubtedly,
importance was attached to securing the concurring vote of the
Mandatory Power by patient efforts at compromise and accom-
modation, especially with respect to the language of the Resolutions
of the Council. It is therefore probable that a case, repeatedly—
though rather vaguely—referred to in the argument of the Govern-
ment of South Africa before the United Nations, in which the
Council of the League of Nations desisted in deference to the
attitude of South Africa from a proposed course of action, is not
wholly apocryphal: There were bound to be a number of cases of
that nature. However, these do not tell the whole story. In other
—and probably more frequent—cases unanimity was achieved
for the reason that the Mandatory Power adapted its attitude
to the general sense of the Council, or, in some cases, for the reason
that it decided not to participate in the meeting at which the Council
accepted the Resolution. It is probable—we cannot put it higher
than that—that it adopted that course because it deemed it
preferable to open disagreement with an otherwise unanimous
Council or to a public debate before an antagonistic and practically
unanimous Assembly. From this point of view there is a distinct

40
104 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

measure of unreality in the insistence on the absolutely unanimous
vote in the Council. The Council was not a mere voting machine.

It is of interest to note that Professor Quincy Wright, in the
most exhaustive treatise on the subject of mandates, comes to the
following conclusion : “Thus it is possible that a resolution dealing
with a particular mandatory might be effective over the adverse
vote of that mandatory. On the other hand, it may be thought
that the Council in dealing with mandates acts in an adminis-
trative rather than a quasi-judicial character, in which case absolute
unanimity might be required. It is probable that the character of the
particular question before the Council would determine the matter
but up to date there has always been absolute unanimity.”
(Mandates under the League of Nations (1930), p. 132. A similar
view is expressed on p. 522.) However, as already suggested, the
Council, in passing resolutions on mandates, acted essentially in
a quasi-judicial capacity, Apart from procedural safeguards, there
is probably no basic difference between the judicial and the adminis-
trative application of the law. As shown, the circumstance that
resolutions had in fact been accepted by absolute unanimity throws
no decisive light on the legal position here examined. When
Professor Wright stated—a statement subsequently repeated by
other well-informed commentators (see Duncan Hall, Mandates,
Dependencies and Trusteeship (1948), p. 175)—that as a matter of
fact decisions of the Council in the matter of mandates were
unanimous, the statement, if we disregard the occasiunal abstention
of the Mandatory Power from participation in the meetings, was on
the face of it correct. But, as shown, it was clearly intended only as
a statement of fact, not of law. That fact is open to varying—and
divergent—legal construction.

There is thus in the practice of the Council no conclusive factor
which is apt to override the basic legal considerations to which
I have referred above, namely, that in an instrument such as the
Covenant of the League of Nations the general requirement of
unanimity is not in itself sufficient to displace the principle that a
party cannot be judge in its own case ; that the requirement of
unanimity, however expressly stated, is implicitly qualified by the
latter principle ; and that nothing short of its express exclusion is
sufficient to justify a State in insisting that it should, by acting as
judge in its own case, possess the right to render inoperative a
solemn international obligation to which it has subscribed. This
principle ought to be kept prominently in mind when it is a question
of the supervised State claiming the right to frustrate by its own
vote the legal efficacy of the supervision. The effectiveness of inter-
national obligations may not be the only governing consideration

41
105 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

in the interpretation of treaties seeing that the parties occasionally
intend to render them less effective than is indicated by their appar-
ent purpose. But it is a consideration which cannot be ignored.
In so far as the principle nemo judex in re sua is not only a general
principle of law, expressly sanctioned by the Court, but also a
principle of good faith, it is particularly appropriate in relation to
an instrument of a fiduciary character such as a mandate or a trust
in which equitable considerations acting upon the conscience are of
compelling application. This, too, is a general principle of law recog-
nized by civilized States. There is therefore no sufficient reason for
assuming that if the Permanent Court of International Justice had
been called upon to apply its ruling in the Twelfth Advisory Opinion
to the question of unanimity in connection with the supervisory
function of the Council in the matter of mandates, it would have
abandoned the principle there enunciated. It may be strange that
ten years after the dissolution of the League this Court should be
confronted with the same question, but this is not a valid ground
for departing from that principle. There is, it may be added, no
reason why the Court should not interpret the Covenant of the
League as it existed in 1945. The determination of rights validly
acquired under treaties or statutes which have lapsed is a frequent
occurrence in judicial practice. There is no occasion for any
excess of judicial caution in this respect. Moreover, in the present
case the Court interprets primarily the Mandate which, as it repeat-
edly stated in its Opinion of 1950, continues to exist.

I cannot say that I have arrived without hesitation at my
conclusion on this aspect of the question or that I would have been
prepared to base my affirmative answer to the question put by
the General Assembly solely on this ground. I am impressed by
the doubts voiced in this connection by Judge Klaestad in his
Separate Opinion. For we ought to attach due weight to the
general rule of unanimity in the Covenant and the fact that there
is no explicit case on record in which the Council affirmed its
right to give a valid decision in face of a formal objection of the
interested inandatory State. At the same time, I must attach equal
—and, I believe, decisive— weight to the general principle as here
outlined and as acted upon by the Court itself in the Twelfth
Advisory Opinion; to the preponderant practice of the Council
of the League in a sphere not confined to the settlement of disputes ;
and, above all, to the custom—to what in English practice is
referred to as a constitutional convention—according to which
the Mandatory States never in fact exercised any right of veto.
Also, I have some doubts as to the existence of any vested right
of South Africa to an immutable system of voting in face of actual
or potential changes in the practice of the League of Nations on
the subject of the voting procedure. There is no doubt that, in the

42
I06 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

course of time and without any formal amendment, the rule of
absolute unanimity ceased to be a factor to which there was
invariably attached decisive importance. This, in addition to the
practice outlined above, is shown by the gradual adoption of such
practices as passing of resolutions by way of a “‘voeu” or recommend-
ation by simple majority ; by treating some substantive matters as
being questions of procedure ; by considering abstention as absence ;
and by the practice of majority voting in Committees. When in
1937 Members cf the League of Nations expressed their view as
to whether absolute unanimity of the Council was required for a
request for an Advisory Opinion, a large majority of those who
formulated their attitude denied the existence of any such require-
ment. This, was so although in this case there were reasons of some
cogency for maintaining the rule of absolute unanimity having
regard to the principle that States cannot be compelled, directly or
indirectly, to bring their disputes before the Court. A proper inter-
pretation of a constitutional instrument must take into account
not only the formal letter of the original instrument, but also its
operation in actual practice and in the light of the revealed tenden-
cies in the life of the Organization. This being so, although I am not
prepared to say that the main contention of South Africa was
wholly unfounded, I cannot accept it as being legally correct.

For these reasons, my conclusion is that the proposed Rule F
is not inconsistent with a correct interpretation of the Opinion of
the Court of 1950 inasmuch as it is based on the view that the
opposing vote of the mandatory State could not in all circumstances
adversely affect the required unanimity of the Council of the League
of Nations.

* * *
Question 2: Has the General Assembly
the Power to Proceed by a Voting Proce-
dure other than that laid down in Art-
icle 18 of the Charter ?

Although the Court has decided that it is not necessary for it to
consider the South African contention in so far as it is based
on the notion that the absolute unanimity of the Council of the
League was required for the validity of its decisions, it has not
thereby disposed of the issue before it. For there remains the
possibility, foreshadowed in the Request for the present Opinion,
of alternative voting procedures other than absolute unanimity
or the two-thirds majority of Rule F. The General Assembly
expressly asked the Court to indicate what other voting procedure
should be followed in case it finds that Rule F is inconsistent with
its Opinion of 1950. There may be a qualified unanimity (i.e., one

43
107 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

not including the vote of the Administering State), or some kind
of majority half-way between unanimity and two-thirds such as
a majority of three-fourths or four-fifths, or any kind of majority
which includes certain States or groups of States such as the States
represented on the Trusteeship Council or such of these States as
administer Trust Territories. Can it be said that all these procedures,
as well as that of absolute unanimity, are ruled out for the reason
that they are constitutionally inadmissible having regard to the
Charter of the United Nations and the fact that the only voting
procedure ‘permitted to the General Assembly is that of simple
majority or of a two-thirds majority? Is it legally possible for
the General Assembly, in any circumstances, to adopt a voting
procedure different from that laid down in the Charter, namely,
simple majority or a two-thirds majority? Is it legally possible
for it to determine that a certain type of question shall be decided
in the future by any of the alternative voting procedures as out-
lined above ? If it is legally possible for the General Assembly
to adopt any of these voting systems and if Rule F, which replaces
the unanimity rule by a two-thirds majority, is not, upon exami-
nation, shown to represent the closest possible approximation
to the procedure of the Council of the League of Nations, then
there arises in an acute form the question of its compatibility
with the Opinion of the Court given in 1950. What is the answer
to these questions ?

To put it in different words, must Rule F be regarded as approxi-
mating ‘‘as far as possible” to the procedure of the Council of the
League for the reason that under the voting system of the Charter
no other voting procedure save that of simple majority or a two-
thirds majority is possible or permissible ? Did the Court have that
limitation in mind when it used the expression “‘as far as possible” ?
That this was so was repeatedly asserted during the debates in the
General Assembly and in the Committee for South-West Africa. It
is a problem which is essential to the whole question. Its examina-
tion—and an answer to it—cannot be avoided on the ground that a
positive answer constitutes a juridical impossibility. The General
Assembly did not consider it in that light for, as stated, it specifically
asked the Court to say what should be its alternative voting proce-
dure in case the Court should give a negative answer to the main
question put to it. Neither can the answer to the constitutional
aspect of the question be taken as self-evident by way of ‘‘construc-
tion” in the sense that as the Court held that the supervision must
lie with the General Assembly, the General Assembly can resort
for that purpose to a procedure no other than that laid down in the
Charter, and that by adopting Rule F it followed the procedure of
the Council of the League as far as possible. To do so is to beg the
question. Neither do I think. it permissible to avoid it because of

44
108 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

the difficulty raised by a baffling practice and by conflicting con-
siderations of principle.

Principle would seem to suggest that it is not legally possible for
the General Assembly to decide—whether by an ordinary majority
or a two-thirds majority—that any question or category of ques-
tions, or all questions, shall be in the future decided by a majority
of three-fourths or four-fifths or by a unanimous vote. The reasons
for that view are persuasive. If the General Assembly were to make
any such decision, it would be depriving some, as yet undetermined,
Members of the General Assembly of the right, safeguarded by the
Charter, to have a matter determined by a two-thirds majority in
which they participate. If that is so, then it would appear that the
General Assembly is not legally in the position to adopt any such
special procedure of voting even in pursuance of an Advisory Opinion
of the Court. Any such change must be the result of an amendment
of the Charter. This view is strengthened by jurisprudential con-
siderations of obvious cogency :

The size of the majority required for the validity of the decisions
of a corporate political body is not a mere matter of technical
‘convenience or mathematical computation. It is expressive of
the basic political philosophy of the organization. A study of the
preparatory work of the Conference of San Francisco, including
that of the Dumbarton Oaks proposals, shows that the adoption
of the existing system of voting was the result of prolonged delib-
eration. In any case it now forms part of the law of the Charter.
Unlike in the League of Nations, the basic philosophy of the
Charter of the United Nations is, to put it in a negative form, that
of the rejection of the rule of unanimity. There is not a single
provision of the Charter which prescribes or authorizes for voting
in the General Assembly the requirement of unanimity or any kind
of majority other than a simple or two-thirds majority (although,
significantly, there is in Articles 108 and 109 a provision for a
majority which must include permanent Members of the Security
Council). It is outside the purpose of this Opinion to enquire into
the reason and objects of that system of voting based on the
rejection of unanimity or anything approaching it. It suffices to
say that the system as adopted is in accordance with the structure
of the United Nations conceived as an entity existing, as it were,
independently of its Members and endowed with a personality-of its
own—one aspect of which is vividly illustrated by the Opinion of
the Court in‘the Zmjuries Case—as distinguished from the League
of Nations which in acting, by virtue of the principle of unanimity,
by agreement rather than by majority, bore the character of an
association of a different character.
109 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

Principle would seem to demand that whenever the basic instrur
ment of a corporate political body prescribes the manner in which
its collective will is to be formed and expressed, that basic instru-
ment is in this respect paramount and overriding and nothing
save a constitutional amendment as distinguished from legislative
action can authorize an alternative procedure of voting. On that
view it. would not seem to matter, in the case of the United Nations,
whether the action is taken in pursuance of the objects of organi-
zation, or in pursuance of a function accepted under some extra-
neous instrument such as a treaty. Such function must in any case
lie within the orbit of its competence as laid down in the Charter.
For the organization cannot accept the fulfilment of a task which
lies outside the scope of its functions as determined by its consti-
tution. Thus, for instance, if two or more States were to confer
by treaty upon the General Assembly certain functions in the
sphere of pacific settlement—e.g., by appointing an arbitration
commission or by deciding itself the disputed issue—and if the
treaty provided that these functions shall be fulfilled by a three-
fourths or four-fifths majority or qualified unanimity, principle
would seem to suggest that the General Assembly cannot act in
that way. It cannot override a seemingly mandatory provision of
the Charter by the device of accepting a task conferred by a treaty.
It might otherwise be possible to alter, through extraneous treaties,
the character of the Organization in an important aspect of its
activity.

These were probably the reasons—although they do not seem to
have been expressed in articulate language—which made some
Members of the United Nations insist that in giving its Opinion
in 1950 the Court must have envisaged the voting procedure of the
General Assembly such as it is and must have ruled out the possi-
bility of its being adapted to the governing requirement that the
degree of supervision must not exceed that under the System of
Mandates. In doing so, they were able to point to the Advisory
Opinion No. 12 on the Interpretation of the Treaty of Lausanne in
which the Court appeared to have laid down the principle that a poli-
tical body entrusted with a decision by virtue of an extraneous in-
strument can proceed in the matter only in accordance with its own
procedure of voting. If that view, so cogently supported by principle
and, apparently, by the Court, is correct, then, clearly, Rule F
cannot be challenged on the ground that it is tainted by an avoidable
failure to approximate to the voting procedure of the Council
of the League. It means, to put it in different words, that Rule F
is a correct interpretation of the Opinion of 1950 for the reason :
(a) that the absolute unanimity rule, even if it were correct, could
not be given effect having regard to the binding character of the
voting procedure of the Charter; and (bd) that, for the same
reason, it was not legally possible for the General Assembly to

40
IIO ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

contemplate or to adopt any alternative procedure falling short of
absolute unanimity.

*
* *

However, although the view as here outlined seems to be sup-
ported by principle and practice, there are opposing considerations
both of practice and principle. In fact, the Permanent Court of
International Justice, after enunciating in the Twelfth Advisory
Opinion the rule which seems to go one way, qualified it in the
same Opinion in the opposite direction. It began by rejecting the
view, put forward by Great Britain, that the unanimity rule as
laid down in Article 5 of the Covenant, contemplated only the
exercise of powers granted in the Covenant itself. It said: “The
fact that the present case concerns the exercise of a power outside
the normal province of the Council, clearly cannot be used as an
argument for the diminution of the safeguards with which, in the
Covenant, it was felt necessary to surround the Council’s decisions”?
(Series B, No. 12 p. 30). It thus seems to have adopted the view,
which I have déscribed as seemingly being in accordance with
principle, that a political body can act only in accordance with the
procedure as laid down in its constitution. However, after having
said that, the Court proceeded to qualify the apparent general
rule. It said : ‘On the other hand, no one denies that the Council
can undertake to give decisions by a majority in specific cases, if
express provision is made for this power by treaty stipulations”
{at p. 30). Again, after referring to the binding character of the
voting procedure of a “body already constituted and having its
own rules of organization and procedure’, it qualified that state-
ment by adding : ‘unless a contrary intention has been expressed”
(at p. 31).

In thus qualifying the major principle which it enunciated and
on which it acted, the Court was in fact able to rely—although
it did not refer to—on some substantial practice of the League
of Nations. Of that practice the Rules of Procedure adopted by the
Assembly and the Council of the League provide a significant
example. Article 5 (1) of the Covenant laid down as follows : “Except
when otherwise provided in this Covenant or by the terms of the
present treaty, decisions of any meeting of the Assembly, or of the
Council, require the agreement of all the Members represented at
the meeting.” However, the Rules of Procedure, subsequently
framed with respect to both the Assembly and the Council, effected
in this matter an important—though at first sight inconspicuous—
change. In Rule 19 (1) of the Rules of Procedure of the Assembly
the words of Article 5, paragraph 1, of the Covenant were repro-
duced with a significant modification. In place of the words “by the
terms of the present treaty” there were substituted the words “of a
treaty’. Article 8, paragraph (1), of the Council’s Rules of Procedure

47
III ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

made the same change. In the Rules of Procedure of the Council
adopted on May 26th, 1933, this aspect of the matter was expressed
even more clearly. Article 9 of the revised Rules provided as follows:
“Except where otherwise expressly provided by the Covenant, or
by the terms of any other instrument which is to be applied, deci-
sions at any meeting of the Council require the agreement of all the
Members of the League represented at the meeting.”’

Moreover, in a large number of treaties adopted subsequent to
the Peace Treaties and in some cases expressly accepted by the
Council, provision was made for voting by some kind of majority
as distinguished from, unanimity. This applied in particular to the
“Minorities Treaties’ which all contained provisions allowing the
Council to proceed by a majority of votes in proposing modifica-
tions to these treaties. Similar provisions were incorporated in some
other instruments such as Article 4 of the Declaration of Novem-
ber oth, 1921, of the Principal Allied Powers concerning Albania ;
Article 15 of the second Geneva Protocol of March r4th, 1924,
concerning the economic rehabilitation of Hungary ; Article 14 of
Annex 2 and Article 4 of Annex 3 of the Memel Agreement of
May 8th, 1924, between the Principal Allied Powers and Lithuania ;
Article 9.of the Financial Agreement of 9 December, 1927, between
Bulgaria and Greece; Article 7 of the Agreement of 20 October,
1921, concerning the non-militarization and neutralization of
the Aaland Islands ; Article 8 of the Locarno Pact of October 16th,
1925 ; Article 28 (3) of the Agreement on Financial Assistance of
2 October, 1930. And, of course, there were numerous provisions to
that effect in the various Peace Treaties to which, as stated, express
reference was made in the Covenant. There was no disposition
among authors who commented in detail upon the amended Rules
of Procedure and the provisions of these treaties to question their
propriety in any way (see Schücking-Wehberg, Die Satzung des
V dlkerbundes, 31d ed., Vol. I (1931), pp. 517, 521; Ray, Commen-
taire du Pacte de la Société des Nations (1930), p. 226, 227 ; Stone
in British Year Book of International Law, 14 (1933), pp. 33-35).

Having regard to the practice of the League of Nations and
to the important qualification of the apparent major principle
expressed by the Court in the Twelfth Advisory Opinion, as well
as to considerations of a practical character, it cannot be said,
by way of an absolute rule, that in no circumstances may the
General Assembly act by a system of voting other than that laid
down in the Charter. There is no room fer any emphasis of language
suggesting that any such modification of the voting procedure is a
juridical impossibility. Frequent practice of the League of Nations
accomplished that juridical impossibility and the Court expressly
gaveit its approval. On the other hand, in view of the persuasiveness
of the contrary considerations outlined above, it does not seem to
me permissible to go as far as the Rules of Procedure of the Assembly

48
112 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

or the Council of the League—or, indeed, the Court itself in the
Twelfth Advisory Opinion—went in this respect and to hold that a
modification of the system of voting is permitted every time when
the Organization acts under a treaty other than its own constitu-
tional Charter. The correct rule seems to lie half-way between these
two solutions. The available practice and considerations of utility
point to the justification of a rule which recognizes in this matter a
measure of elasticity not inconsistent with the fundamental struc-
ture of the Organization. Within these limits, it is in my view a
sound legal proposition that such modification is permissible
under the terms of a general treaty, in the general international
interest, and in relation to institutions and arrangements partaking
of an international status—in particular, in cases in which the
Gene ral Assembly acts in substitution for a body which has hitherto
fulfilled the functions in question. This is the position in the present
case. While the powers of the General Assembly in the matter
are to be exercised primarily in pursuance of the Charter as inter-
preted by the Court in its Opinion rendered in 1950, and in particular
of Articles 10 and 80, they are also to be exercised in pursuance of
the continuing system of Mandates whose obligations were declared
by the Court to be binding upon the Union of South-West Africa
in respect of the territory which continues to be held under the
international Mandate assumed by her in 1920. In view of this,
there is room, as a matter of law, for the modification of the voting
procedure of the General Assembly in respect of a jurisdiction
whose source is of a dual character inasmuch as it emanates both
from the Charter and the Mandate. In so far as considerations
of international interest constitute a legitimate factor in the
situation, they do so with much cogency in a situation which con-
cerns the exercise of an international trust in respect of a territory
which is endowed with an international status, which is the subject
of an Opinion of this Court, and which has been the cause of inter-
national friction.

The question which calls for an answer is whether in the present
case there exists a treaty of a character as described above. The
words of the Opinion of 1950 seem to suggest a negative answer
inasmuch as the Opinion lays down that “the competence of the
General Assembly of the United Nations to exercise such supervision
and to receive and examine reports is derived from the provisions
of Article 10 of the Charter” (at p. 137). However, the passage
must be read not in isolation but in the general context of the
Opinion and in the light of the dual character of the source of the
supervisory function of the General Assembly. The true meaning
ot the passage in question is that Article 10 of the Charter confers
upon the General Assembly the competence to fulfil the functions
as derived from the international instrument which establishes the
international status of the territory in question, namely, the
Mandate. It is the Mandate which is the original source of the

49
II3 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

powers of the General Assembly. The competence to apply the
Mandate is derived from Article ro.

It follows from what has been said above that there i is no warrant
for considering as a dogma, for which no proof is required and with
regard to which any contrary evidence can be ignored, the rule
that under no circumstances may the General Assembly act under
a voting procedure other than that laid down in Article 18. This
being so, what are the modifications of the voting procedure of the
General Assembly which may properly be contemplated in this
connection ? It is clear that any application of the principle of
absolute unanimity—which in any case would be ruled out by
virtue of the answer given above to Question 1—is inadmissible
under the legal principle here formulated for the reason that it
offends against a fundamental tenet of the constitution of.the
United Nations, namely, the abandonment of the doctrine of
unanimity. For the same reason there would seem to be no room
for a system of qualified unanimity not including the vote of the
administering State—a system which would be open to the addition-
al objection that it would place South Africa in some ways in a
better position than that obtaining under the procedure of the
Council of the League. For the number of States required for
unanimity in the General Assembly is about four times as large as
in ‘the Council of the League.

Yet there was—and there is—room for exploring the practica-
bility of voting procedures lying half-way between qualified
unanimity and a two-thirds majority. This Opinion is not the
appropriate occasion for an examination of these solutions. There
may be an element of artificiality in some of them inasmuch as
they must of necessity leave out of account the differences in the
composition of the General Assembly and the Council of the
League. The discussions on the General Assembly show a somewhat
disturbing absence of attempts to explore some of the more practi-
cable possibilities—though this fact may perhaps be explained by
the repetitive and rigid adherence on the part of the Government
of South Africa, an adherence unrelieved by alternative proposals,
to the notion of absolute unanimity. In particular, there is room
for the consideration of a solution consisting, on the analogy of
Articles 108 and 109 of the Charter, in qualifying the requirement
of a two-thirds majority, as laid down in Rule F, by the additional
requirement that it must include either all the Members of the
Trusteeship Council other than South Africa or all its Members
other than South Africa administering Trust Territories. I am not
prepared to say that some such solution, couched in the very
language of Article 18 of the Charter, would be inconsistent with
it. There is only limited merit in a judicial interpretation intent
upon extracting every ounce of rigidity from a written constitution
or in simplifying the issue by concentrating exclusively on extreme

50
II4 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

solutions. Thus, while unanimity, absolute or qualified, may be
entirely alien to the spirit.of the Charter and as such inconsistent
with it, this does not apply to alternative solutions falling short
of unanimity. In particular, when the General Assembly takes
over functions from a body whose procedure it is enjoined to follow
as far as possible, it seems to me reasonable to explore, in a spirit
of accommodation free from exaggerations of language, other solu-
tions appopriate to the situation and not basically inconsistent
with the Charter.

Accordingly, in so far as Rule F fails to provide for practicable
modifications of the voting procedure of the General Assembly,
not inconsistent with the fundamental principles of the Charter
of the United Nations on the subject, I might, if not prevented
by my answer to Question 3, feel bound to hold that Rule F does
not approximate as far as possible to the voting procedure of the
Council of the League and that in so far as it involves a higher
degree of supervision it fails to conform with the Opinion rendered
in 1950. However, I cannot so hold for the reason that my answer
to Question 3 is that, as the decisions of the General Assembly
are not of a legal effect equal to that of the decisions of the Council
of the League, Rule F does not involve a degree of supervision
exceeding that in force under the Mandates System and that
it therefore constitutes a correct interpretation of the Opinion
tendered by the Court in 1950.

*
* *

Question 3: Do the decisions of the
General Assembly possess the same legal
force in the system of supervision as the
decisions of the Council of the League of
Nations ?

The fina], and in my view, decisive question is whether it cannot
correctly be said that Rule F is in accordance with the Opinion of
the Court rendered in 1950 for the reason that what South Africa
is now asked to accept are majority decisions which are not binding
or not fully binding in place of decisions which were binding—which
means in effect that she is asked to accept a system of supervision
which, far from being more exacting, is much less so. Even if it is
assumed that she was not bound by decisions of the League Council
to which she did not agree and that she could prevent any such
decision from coming into force, can it not be said that she is not

51
II5 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

bound or not fully bound by the decisions of the General Assembly for
the simple reason that these are not binding or not fully binding ? If
the Court were to accept that argument, it would have to reject the
assertion that Rule F implies a degree of supervision in excess of
that obtaining under the System of Mandates. There would be such
excess of supervision if the decision of the General Assembly reached
by a two-thirds majority had the same legal and binding force as
unanimous resolutions of the Council of the League of Nations. On
the other hand, if the position is in fact that, while the supervision
by the General Assembly exceeds that of the Council of the League
of Nations inasmuch as it is exercised by a majority vote of two-
thirds and thus deprived of the safeguards of unanimity, it is at
the same tinte less exacting inasmuch as it is exercised by means of
decisions of a character less binding than those of the Council of the
League of Nations—if that is the position, can it not be fairly held
that there is established a-rough equivalence of supervision which
brings Rule F within the terms of the ruling of the Court in its
Advisory Opinion rendered in 1950? My view is that that contention
is fully relevant to the present case and that it is substantially
correct.

Although decisions of the General Assembly are endowed with
full legal effect in some spheres of the activity of the United Nations
and with limited legal effect in other spheres, it may be said, by way
of a broad generalisation, that they are not legally binding upon the
Members of the United Nations. In some matters—such as the
election of the Secretary-General, election of members of the Eco-
nomic and Social Council and of some members of the Trusteeship
Council, the adoption of rules of procedure, admission to, suspension
from and termination of membership, and approval of the budget and
the apportionment of expenses—the full legal effects of the Resolu-
tions of the General Assembly:are undeniable. But, in general, they
are in the nature of recommendations and it is in the nature of
recommendations that, although on proper occasions they provide
a legal authorization for Members determined to act upon them
individually or collectively, they do not create a legal obligation to
comply with them. This is so although Rule F and the General
Assembly’s request for the present Opinion both refer to “decisions”
which, in ordinary connotation, signify binding expressions of will.
In fact, the request of the General Assembly and the special Rule
F, in referring to “decisions”, contemplate decisions in their wider,
somewhat non-technical, sense as used in Article 18 of the Charter
of the United Nations. The intended reference is to Resolutions
generally, a generic term which, although it does not occur in the
Charter, has found an accepted place in the practice of the United
Nations. Now “‘resolutions’’ cover two distinct matters : They cover
occasionally decisions which have a definite binding effect either in

52
Ir6 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

relation to Members of the United Nations or its organs or both, or
the United Nations as a whole. But normally they refer to recom-
mendations, properly so called, whose legal effect, although not
always altogether absent, is more limited and approaching what,
when taken in isolation, appears to be no more than a moral
obligation.

This, in principle, is also the position with respect to the recom-
mendations of the General Assembly in relation to the adminis-
tration of trust territories. The Trusteeship Agreements do not
provide for a legal obligation of the Administering Authority
to comply with the decisions of the organs of the United Nations
in the matter of trusteeship. Thus there is no legal obligation,
on the part of the Administering Authority to give effect to a
recommendation of the General Assembly to adopt or depart
from a particular course of legislation or any particular adminis-
trative measure. The legal obligation resting upon the Administer-
ing Authority is to administer the Trust Territory in accordance
with the principles of the Charter and the provisions of the Trustee-
ship Agreement, but not necessarily in accordance with any specific
recommendation of the General Assembly or of the Trusteeship
Council. This is so as a matter both of existing law and of sound
principles of government. The Administering Authority, not the
General Assembly, bears the direct responsibility for the welfare
of the population of the Trust Territory. There is no sufficient
guarantee of the timeliness and practicability of a particular
recommendation made by a body acting occasionally amidst a
pressure of business, at times deprived of expert advice and
information, and not always able to foresee the consequences
of a particular measure in relation to the totality of legislation
and administration of the trust territory. Recommendations in
the sphere of trusteeship have been made by the General Assembly
frequently and as a matter of course. To suggest that any such
particular recommendation is binding in the sense that there is a
legal obligation to put it into effect is to run counter not only to
the paramount rule that the General Assembly has no legal power
to legislate or bind its Members by way of recommendations, but,
for reasons stated, also to cogent considerations of good government
and administration.

In fact States administering Trust Territories have often asserted
their right not to accept recommendations of the General Assembly
or of the Trusteeship Council as approved by the General Assembly.
That right has never been seriously challenged. There are numerous
examples of express refusal on the part of the Administering
Authority to comply with a recommendation. This occurred, for
instance, with regard to the recommendation of the Trusteeship
Council at its Third Session (A/603, Official Records of the General

53
IZ7 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

Assembly, Third Session, Suppl. No. 4, p. 31) which considered
that the existing tribal structure in Tanganyika is an obstacle to
the political and social advancement of the indigenous inhabitants—
a recommendation which the Administering Authority rejected on
the ground that “the great mass of the people everywhere are
strongly attached to their tribal institutions and in most cases
offer strong resistance to any suggestions of serious modification”
(Report for 1948, p. 52). When the Trusteeship Council recommended
that consideration be given to the introduction of a system of univer-
sal suffrage applicable to all inhabitants of Western Samoa (A/933,
Official Records of the General Assembly, Fourth Session, Supplement
No. 4, p. 58) the Administering Authority informed the Council
that “it would be entirely wrong to force on the Samoans any
radical change in their customs since the introduction of universal
suffrage at this stage would be incompatible with that respect for
Samoan culture to which it and the Government of Western Samoa
are equally urged by the Trusteeship Council” (Document A/1903/
Add. 2, p. 9). When the Trusteeship Council recommended in
respect of Nauru that the long-term royalty investment funds
should not necessarily be limited to Australian Government secu-
rities, but should be invested freely in the best interest of the
Nauruans, the Administering Authority explained why it was
unable to act upon the recommendation (A/933, Official Records
of the General Assembly, Fourth Session, Suppl. No. 4, p.77, A/1306,
Fifth Session, Suppl. No. 4, p. 134). When the Trusteeship Council
recommended the reconsideration of the head tax in the Pacific
Islands, the Administering Authority explained why in its opinion
this was a satisfactory and desirable form of tax under the economic
and political conditions prevailing in the Trust Territory (S/1358,
p. 13; S/1628, p. 15: Reports of the Trusteeship Council to the
Security Council).

*x
* *

I have elaborated at what may appear to be excessive length
a point which seems non-controversial, namely, that recommenda-
tions of the General Assembly are not binding. I have done it by
reference to recommendations which are relevant to the issue now
before the Court, namely, the recommendations with respect to
Trust Territories. They are so relevant although, of course, the
territory of South-West Africa is not a Trust Territory. However,
unless adequately explained and qualified, this statement of the
legal position is bound to be incomplete to the point of being
misleading. For reasons stated at the end of this Opinion, althougt
I am basing my answer to this question on the view that the deci-
sions of the General Assembly do not possess the same legal value

54
118 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

as those of the Council of the League, I consider it essential to
explain and to qualify this aspect of the present Separate Opinion.
It is one thing to affirm the somewhat obvious principle that the
recommendations of the General Assembly in the matter of trustee-
ship or otherwise addressed to the Members of the United Nations
are not legally binding upon them in the sense that full effect must
be given to them. It is another thing to give currency to the view
that they have no force at all whether legal or other and that there-
fore they cannot be regarded as forming in any sense part of a
legal system of supervision.

In the first instance, not all the resolutions of the General
Assembly in the matter are in the form of recommendations
addressed to the Administering Authority. They are often, in
form and in substance, directives addressed to the organs of the
United Nations such as the Trusteeship Council or the Secretary-
General. As such, they are endowed with legal validity and effect.
They are measures of supervision of a force comparable with the
legal effects of such acts of the General Assembly as the election
of members of the Trusteeship Council or the confirmation of the
Trusteeship Agreements. A survey of the resolutions passed by
the General Assembly in the sphere of trusteeship shows the fre-
quency of this aspect of the supervisory function of the General
Assembly.

However, even in relation to the Administering Authority the
question of the effect of the decision of the General Assembly
cannot accurately be answered by the simple statement that they
are not legally binding. In general it is clear that as the General
Assembly has no power of decision—as distinguished from recom-
mendation—imposing itself with binding force upon the substantive
action of the Member States, its Resolutions have per se no binding
force in relation to the Administering State. Thus that State is
not bound to comply with any specific Resolution recommending
it to undertake or to abstain from any particular legislative or
administrative action. As stated, no considerations of practical
persuasiveness permit any different interpretation of the existing
Jaw on the subject. I have referred to cases in which the Adminis-
tering Authority has expressly declined to act upon the recom-
mendation addressed to it. Its right to do so has never been
challenged: What has been challenged—and, I believe, properly
challenged—is its right simply to ignore the recommendations and
to abstain from adducing reasons for not putting them into effect
or for not submitting them for examination with the view to
giving effect to them. What has been questioned is the opinion
that a recommendation is of no legal effect whatsoever. A Resolution
recommending to an Administering State a specific course of action
creates some legal obligation which, however rudimentary, elastic

55
IIQ ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

and imperfect, is nevertheless a legal obligation and constitutes a
measure of supervision. The State in question, while not bound
to accept the recommendation, is bound to give it due consideration
in good faith. If, having regard to its own ultimate responsibility
for the good government of the territory, it decides to disregard it,
it is bound to explain the reasons for its decision. These obligations
appear intangible and almost nominal when compared with the
ultimate discretion of the Administering Authority. They never-
theless constitute an obligation ; they have been acknowledged as
such by the Administering Authorities. This appears with some
clarity from the searching discussion at the Sixth General Assembly
in 1952 which followed upon the presentation by the Secretary-
General, in pursuance of a previous recommendation of the General
Assembly, of a series of documents entitled Information on the
Implementation of Trusteeship Council and General Assembly
Resolutions relating to Trust Territories (Documents A/1903 ;
A/1903/Add.r ; A/1903/Add.2; October 1952. In Resolution 436
(V) of 2 Decémber, 1950, the General Assembly requested the
Secretary-General to report to it on the measures taken by the
Administering Authorities to implement the Resolutions of the
General Assembly and the Trusteeship Council and if there had
been no action on the part of an Administering Authority in respect
of any particular Resolution to set forth the reasons given concern-
ing that matter). While pointing to the difficulties in the way of
giving effect to some of the recommendations and while affirming
their own final responsibility and their own right of ultimate
decision, various delegations of the Administering States made no
attempt to assert that these recommendations were bruta fulmina
devoid of any element of legal obligation. Thus at the Sixth General
Assembly, in the course of the debate of the Trusteeship Committee,
the representative of the United Kingdom stated as follows : “The
United Kingdom considered that, in cases where the Trusteeship
Council and the General Assembly had adopted Resolutions
concerning the Trust Territories, they were perfectly entitled to be
informed of the decisions taken by the Administering Authorities in
regard to them.” (245th Meeting of 12 January, 1952; Sixth
General Assembly, IVth Committee, p. 295.) Although, as stated,
the Trusteeship Agreements do not provide for a legal obligation
of the Administering Authority to comply with the decisions of
an organ of the United Nations, they are not in this respect devoid
of an element of legal obligation. In practically all of them the
Administering Authority undertakes to collaborate fully with the
General Assembly and the Trusteeship Council in the discharge of
their functions, to facilitate periodic missions, and the like. Such
collaboration, which is a matter of legal duty, is initiated by
decisions of the organs of the United Nations.

56
120 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

Both principle and practice would thus appear to suggest that
the discretion which, in the sphere of the administration of Trust
Territories or territories assimilated thereto is vested in the Members
of the United Nations in respect of the Resolutions of the General
Assembly, is not a discretion tantamount to unrestricted freedom of
action. It is a discretion to be exercised in good faith. Undoubtedly,
the degree of application of good faith in the exercise of full dis-
cretion does not lend itself to rigid legal appreciation. This fact does
not destroy altogether the legal relevance of the discretion thus to be
exercised. This is particularly so in relation to a succession of recom-
mendations, on the same subject and with regard to the same State,
solemnly reaffirmed by the General Assembly. Whatever may be
the content of the recommendation and whatever may be the
nature and the circumstances of the majority by which it has been
reached, it is nevertheless a legal act of the principal organ of the
United Nations which Members of the United Nations are under a
duty to treat with a degree of respect appropriate to a Resolution
of the General Assembly. The same considerations apply to Resolu-
tions in the sphere of territories administrated by virtue of the prin-
ciples of the System of Trusteeship. Although there is no automatic
obligation to accept fully a particular recommendation or series of
récommendations, there is a legal obligation to act in good faith in
accordance with the principles of the Charter and of the System of
Trusteeship. An administering State may not be acting illegally by
declining to act upon a recommendation or series of recommenda-
tions on the same subject. But in doing so it acts at its peril when a
point is reached when the cumulative effect of the persistent dis-
regard of the articulate opinion of the Organization is such as to
foster the conviction that the State in question has become guilty
of disloyalty to the Principles and Purposes of the Charter. Thus an
Administering State which consistently sets itself above the solemnly
and repeatedly expressed judgment of the Organisation, in partic-
ular in proportion as that judgment approximates to unanimity,
may find that it has overstepped the imperceptible line between
impropriety and illegality, between discretion and arbitrariness,
between the exercise of the legal right to: disregard the recom-
mendation and the abuse of that right, and that it has exposed
itself to consequences legitimately following as a legal sanction.

Moreover—and for similar reasons—even if the view is adopted
that the effect of a decision of the General Assembly is no greater
than its moral force, a decision thus conceived still constitutes a
measure of supervision. A system of supervision devoid of an element
of legal obligation and legal sanction can nevertheless provide a
powerful degree of supervision because of the moral force inherent

57
121 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

in its findings and recommendations. It will be noted—and the matter
is not without significance—that the Advisory Opinion of 1950
Jays down not only that the new system must not add to the legal
obligations of South Africa; it says that the degree of supervision
must not exceed that obtaining under the League of Nations. The
phrase ‘“‘degree of supervision” used in the Advisory Opinion of
1950 does not refer necessarily or exclusively to supervision exer-
cised by means of legally binding or enforceable pronouncements..
Moral reprobation following upon non-compliance with a valid
recommendation adopted in conformity with the Charter may
provide a means of supervision as potent or more potent than a
legal sanction.

This absence of a purely legal machinery and the reliance upon
the moral authority of the findings and the reports of the Mandates
Commission were in fact the essential feature of the supervision
of the Mandates System. Public opinion—and the resulting attitude
of the Mandatory. Powers—were influenced not so much by the
formal Resolutions of the Council and Assembly as by the reports
of the Mandates Commission which was the true organ of super-
vision. In legal theory the Mandates Commission was no more than
a subsidiary and-expert organ of the Council which received and
approved its reports and which occasionally softened their impact
by the use of diplomatic language intent upon not offending the
susceptibilities of the Mandatory Power. The Commission could
not communicate directly with the Mandatory Powers and was
often reminded of the limitations of its authority. Its representatives
whe appeared before the Council often acknowledged those limita-
tions and deprecated any intention of exceeding them. But it was a
fact which was generally recognized and of which judicial notice
must be taken that the actual scrutiny of the conduct of the
Mandatory Power rested with the Mandates Commission. Yet no
legal sanction was attached to non-compliance with or disregard
of the recommendations, the hopes and the regrets of the Commis-
sion. The legal sanction of the judicial supervision by the Permanent
Court of International Justice, although forming part of all Man-
dates, was never invoked. The occasional public and detailed
discussions before the General Assembly and the Council, which
influenced powerfully public opinion and the conduct of the Manda-
tory, were in pursuance of the reports of the Mandates Commission.

There are two reasons why I have considered it essential to
elaborate the point—which in a sense seems to put in doubt the
grounds of my own final conclusion—that decisions of the General

58
122 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

Assembly in the matter of territories administered under the
principles of trusteeship have, after all, some legal and certainly
some moral effect and that they may therefore be regarded as a
factor in the legal system of supervision in which the system of
voting is relevant :

In the first instance, the preceding observations show that I
have not reached the final conclusion without some hesitation
and without having fully weighed the correctness of an opposite
conclusion, which is that although the decisions of the General
Assembly have no full legal effect they are nevertheless a weighty
factor in the system of supervision and that therefore the procedure
of the voting by which they are reached is decisive for the purpose
of the Opinion of the Court.

The second reason is that, after full allowance has been made
for the necessity of stating what is the inexorable legal position
resulting from the very nature of ‘‘recommendations’’, it is not
admissible to give currency to an interpretation, without qualifying
it in all requisite detail, which gratuitously weakens the effectiveness
of the Charter. It would be wholly inconsistent with sound principles
of interpretation as well as with highest international interest,
which can never be legally irrelevant, to reduce the value of the
Resolutions of the General Assembly—one of the principal instru-
mentalities of the formation of the collective will and judgment of
the community of nations represented by the United Nations—and
to treat them, for the purpose of this Opinion and otherwise, as
nominal, insignificant and having no claim to influence the conduct
of the Members. International interest demands that no judicial
support, however indirect, be given to any such conception of the
Resolutions of the General Assembly as being of no consequence.

These considerations, as well as actual practice, prevent me
from basing my conclusion on the proposition that the decisions
of the General Assembly have no binding effect at all. However,
there is no escape from the fact that they are of a legal potency
lower than that implicit in the Resolutions of the Council of the
League. To that fact I must attach decisive importance. It is
unreasonable to claim that decisions of distinctly more limited
legal value than that inherent in the decisions of the Council of
the League of Nations must be reached by the same exacting and
rigid system of voting. The fact that some resolutions of the General
Assembly in the matter of trusteeship and elsewhere have a definite
legal effect does not alter decisively the normal situation. This
being so, I come to the conclusion, with regard to Question 3, that
Rule F constitutes a correct interpretation of the Opinion of the
Court given in 1950.

59
123 ADVIS. OPIN. OF 7 VI 55 (SEP. OP. JUDGE LAUTERPACHT)

*
* *

Accordingly, while I have reached the final result on grounds
different from those underlying the Opinion of the Court, I concur
in its operative part for the reason:

(x) that, in so far as the doubts as to the correctness of Rule F
were prompted by the contention that the vote of the General
Assembly on reports and petitions from South Africa is subject to
the rule of absolute unanimity on the ground that this was the
tule obtaining in the Council of the League of Nations, there is
doubt whether such rule can correctly be held to have been in
actual operation at the time of the dissolution of the League in
the Council of the League acting as the supervisory organ of the
Mandates System ;

(2) that, in so far as it is contended that the vote of the General
Assembly on these questions might be subject to some other
procedure of voting more exacting than a two-thirds majority,
though falling short of absolute unanimity, Rule F is nevertheless
in accordance with a correct interpretation of the Opinion of the
Court given in 1950. This is so for the reason that the decisions
of the General Assembly in the meaning of Rule F do not possess
a degree of legal authority equal to that of the decisions of the
Council of the League of Nations. In view of this, although adopted
through a less stringent voting procedure, they cannot be held to
involve a degree of supervision exceeding that which obtained
under the Mandates System. These considerations would also apply
if, contrary to the conclusion (x), it could be held that the decisions
of the Council of the League on the subject required absolute
unanimity.

(Signed) H. LAUTERPACHT.