INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

SOUTH WEST AFRICA CASES

(ETHIOPIA v. SOUTH AFRICA;
LIBERIA v. SOUTH AFRICA)

SECOND PHASE
JUDGMENT OF 18 JULY 1966

1966

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRES DU SUD-OUEST AFRICAIN
(ETHIOPIE c. AFRIQUE DU SUD;
LIBERIA c. AFRIQUE DU SUD)
DEUXIEME PHASE
ARRET DU 18 JUILLET 1966
Official citation:

South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 6.

Mode officiel de citation:

Sud-Ouest africain, deuxième phase, arrêt, C.I.J. Recueil 1966, p. 6.

Sales number
No de vente: 299

1966
18 July
General List:
Nos. 46 & 47

INTERNATIONAL COURT OF JUSTICE

YEAR 1966

18 July 1966

SOUTH WEST AFRICA CASES

(ETHIOPIA v. SOUTH AFRICA;
LIBERIA v. SOUTH AFRICA)

SECOND PHASE

Alleged contraventions of League of Nations Mandate for South West Africa—
Question of the legal status of the Applicants—Status governed by their position
as former members of the League—Antecedent question arising on the merits of
the case'whether Applicants, as individual States former members of the League,
have any legal right or interest in the subject-matter of their claim—Character
of the mandates system within the framework of the League—Effect of Article 22
of the League Covenant instituting the system generally—Obligations of each
mandatory defined in particular instruments of mandate—Structure of these
instruments—Clauses conferring in respect of the mandated territory direct
commercial or other special rights on League members in their capacity as separate
States—Clauses providing for the carrying out of the mandate as a “sacred trust
of civilization” in regard to the inhabitants of the territory—Mandatory’s obliga-
tions under latter class of clauses owed to League as an entity, not to member
States individually—Lack of any legal right for member States individually to
claim performance of these obligations—Additional rights not acquired by reason
of dissolution of the League.

Political, moral and humanitarian considerations not in themselves generative
of legal rights and obligations.

Jurisdictional clause of the mandates—Effect of decision given by the Court
in 1962 on the question of its competence—Relationship between decisions on a
preliminary objection and any question of merits—Inability in principle of juris-
dictional clauses to confer substantive rights—Capacity to invoke a jurisdictional
clause does not imply existence of any legal right or interest relative to the merits

4
7 SOUTH WEST AFRICA (JUDGMENT)

of the claim—lInterpretation of jurisdictional clause of the mandates—Juris-
dictional clauses of the minorities treaties not comparable—Analysis of League
practice in respect of mandates—Inconsistency with existence of rights now
claimed by the Applicants.

Functions of a court of law—Limits of the teleological principle of interpreta-
tion—Court not entitled by way of interpretation to revise, rectify or supplement.

JUDGMENT

Present: President Sir Percy SPENDER; Vice-President’ WELLINGTON Koo;
Judges WINIARSKI, SPIROPOULOS, Sir Gerald FITZMAURICE, KORETSKY,
TANAKA, JESSUP, MORELLI, PADILLA NERVO, FORSTER, Gros; Judges
ad hoc Sir Louis MBANEFO, VAN WYK; Registrar AQUARONE.

In the South West Africa cases,

between
the Empire of Ethiopia,
represented by
H.E. Dr. Tesfaye Gebre-Egzy,
Hon. Ernest A. Gross, Member of the New York Bar,
as Agents,
assisted by
Hon. Edward R. Moore, Under-Secretary of State of Liberia,
Mr. Keith Highet, Member of the New York Bar,
Mr. Frank G. Dawson, Member of the New York Bar,
Mr. Richard A. Falk, Professor of International Law, Princeton University
and Member of the New York Bar,
Mr. Arthur W. Rovine, Member of the Bar of the District of Columbia,
as Counsel,
and by
Mr. Neville N. Rubin, Lecturer in African Law at the School of Oriental and
African Studies of the University of London and Advocate of the Supreme
Court of South Africa,
as Adviser;
the Republic of Liberia,
represented by
H.E. Mr. Nathan Barnes,
Hon. Ernest A. Gross,
as Agents,
Hon. Edward R. Moore,
as Agent and Counsel,
8 SOUTH WEST AFRICA (JUDGMENT)

assisted by

Mr. Keith Highet,

Mr. Frank G. Dawson,
Mr. Richard A. Falk,
Mr. Arthur W. Rovine,
as Counsel,

and by

Mr. Neville N. Rubin,
as Adviser,

and

the Republic of South Africa,
represented by

Dr. J. P. verLoren van Themaat, S.C., Professor of International Law at the
University of South Africa and Consultant to the Department of Foreign
Affairs,

Mr. R. G. McGregor, Deputy Chief State Attorney,

as Agents,

and by

Mr. R. F. Botha, Department of Foreign Affairs and Advocate of the
Supreme Court of South Africa,

as Agent and Adviser,

assisted by

Mr. D. P. de Villiers, S.C., Member of the South African Bar,

Mr. G. van R. Muller, S.C., Member of the South African Bar,

Dr. P. J. Rabie, S.C., Member of the South African Bar,

Mr. E. M. Grosskopf, Member of the South African Bar,

Dr. H. J. O. van Heerden, Member of the South African Bar,

Mr. A. S. Botha, Member of the South African Bar,

Mr. P. R. van Rooyen, Member of the South African Bar,

as Counsel,

and by

Mr. H. J. Allen, Department of Bantu Administration and Development,

Mr. H. Heese, Department of Foreign Affairs and Advocate of the Supreme
Court of South Africa,

as Advisers,

THE Court,
composed as above,

delivers the following Judgment:

By its Judgment of 21 December 1962, the Court rejected the four prelimi-
nary objections raised by the Government of South Africa and found that it
had jurisdiction to adjudicate upon the merits of the dispute submitted to it
on 4 November 1960 by the Applications of the Governments of Ethiopia and
Liberia. Time-limits for the filing of the further pleadings on the merits were
fixed or, at the request of the Parties, extended, by Orders of 5 February 1963,
18 September 1963, 20 January 1964 and 20 October 1964; and the second

6
9 SOUTH WEST AFRICA (JUDGMENT)

phase of the cases became ready for hearing on 23 December 1964, when the
Rejoinder of the Government of South Africa was filed.

Pursuant to Article 31, paragraph 3, of the Statute, and the Order of the
Court of 20 May 1961, the Governments of Ethiopia and Liberia, acting in
concert, chose Sir Louis Mbanefo, Chief Justice of the Eastern Region of
Nigeria, to sit as Judge ad hoc. In accordance with the same Article, the Govern-
ment of South Africa chose the Honourable J. T. van Wyk, Judge of the Appel-
late Division of the Supreme Court of South Africa, to sit as Judge ad hoc.
Both judges had sat in the first phase of the proceedings.

On 14 March 1965, the Government of South Africa notified the Court of
its intention to make an application to the Court relating to the composition
of the Court for the purposes of these cases. The said notification was duly
communicated to the Agents for the Applicants. The Court heard the conten-
tions of the Parties with regard to the application at closed hearings held on
15 and 16 March 1965 and decided not to accede to the application. This
decision was embodied in an Order of 18 March 1965.

Public sittings of the Court were held during the periods 15 March to 14 July
and 20 September to 29 November 1965.

During these public sittings the Court heard the oral arguments and replies
to H.E. Mr. Nathan Barnes, Hon. Ernest A. Gross, Agents, and Hon. Edward
R. Moore, Agent and Counsel, on behalf of the Governments of Ethiopia and
Liberia and of Dr. J. P. verLoren van Themaat, S.C., Mr. R. F. Botha, Agents,
Mr. D. P. de Villiers, S.C., Mr. E. M. Grosskopf, Mr. G. van R. Muller, S.C.,
Mr. P. R. van Rooyen, Dr. H. J. O. van Heerden and Dr: P. J. Rabie, S.C.,
Counsel, on behalf of the Government of South Africa.

At the hearings from 27 April to 4 May 1965, the Court heard the views of
the Parties on a proposal made by counsel for South Africa at the hearing on
30 March 1965 to the effect that the Court should carry out an inspection
in loco in the Territory of South West Africa and also that the Court should
visit South Africa, Ethiopia and Liberia, and one or two countries of the Court’s
own choosing south of the Sahara. At the hearing on 24 May 1965 the President
announced that this request would not be deliberated on by the Court until
after all the evidence had been called and the addresses of the Parties concluded.
At the public sitting on 29 November 1965 the President announced that the
Court had decided not to accede to this request. This decision was embodied
in an Order of the same date.

At the hearing on 14 May 1965, the President announced that the Court was
unable to accede to a proposal made on behalf of Ethiopia and Liberia that
the Court should decide that South Africa, in lieu of calling witnesses or experts
to testify personally, should embody the evidence in depositions or written
statements. In the view of the Court, the Statute and Rules of Court contem-
plated a right in a party to produce evidence by calling witnesses and experts,
and it must be left to exercise the right as it saw fit, subject to the provisions
of the Statute and Rules of Court.

At the hearings from 18 June to 14 July and from 20 September to 21 October
1965, the Court heard the evidence of the witnesses and experts called by the
Government of South Africa in reply to questions put to them in examination,
cross-examination and re-examination on behalf of the Parties, and by Members
of the Court. The following persons gave evidence: Dr. W. W. M. Eiselen,
Commissioner-General for the Northern Sotho; Professor E. van den Haag,
Professor of Social Philosophy at New York University; Professor J. P. van
S. Bruwer, Professor of Social and Cultural Anthropology at the University

7
10 SOUTH WEST AFRICA (JUDGMENT)

of Port Elizabeth; Professor R. F. Logan, Professor of Geography at the Uni-
versity of California, Los Angeles; Mr. P. J. Cillie, Editor of Die Burger, Cape
Town; The Rev. J. S. Gericke, Vice-Chairman of the Synod of the Dutch
Reformed Church of South Africa and Vice-Chancellor of the University of
Stellenbosch; Professor D. C. Krogh, Head of the Department of Economics,
University of South Africa; Mr. L. A. Pepler, Director of Bantu Development
in South Africa; Dr. H. J. van Zyl, Deputy Secretary, Department of Bantu
Education; Dr. C. H. Rautenbach, Rector of the University of Pretoria; Mr.
K. Dahlmann, Editor of the Allgemeine Zeitung, Windhoek; Brigadier-General
S. L. A. Marshall, Chief Historian of the United States Army in various theatres;
Professor C. A. W. Manning, formerly Professor of International Relations,
University of London; Professor S. T. Possony, Director of International
Political Studies Programme, Hoover Institute, Stanford University.

In the course of the written proceedings, the following Submissions were
presented by the Parties:

On behalf of the Governments of Ethiopia and Liberia,
in the Applications:

“Wherefore, may it please the Court, to adjudge and declare, whether
the Government of the Union of South Africa is present or absent and
after such time limitations as the Court may see fit to fix, that:

A. South West Africa is a territory under the Mandate conferred
upon His Britannic Majesty by the Principal Allied and Associated
Powers, to be exercised on his behalf by the Government of the Union
of South Africa, accepted by His Britannic Majesty for and on behalf
of the Government of the Union of South Africa, and confirmed by the
Council of the League of Nations on December 17, 1920; and that the
aforesaid Mandate is a treaty in force, within the meaning of Article 37
of the Statute of the International Court of Justice.

B. The Union of South Africa remains subject to the international
obligations set forth in Article 22 of the Covenant of the League of
Nations and in the Mandate for South West Africa, and that the General
Assembly of the United Nations is legally qualified to exercise the super-
visory functions previously exercised by the League of Nations with
regard to the administration of the Territory; and that the Union is
under an obligation to submit to the supervision and control of the
General Assembly with regard to the exercise of the Mandate.

C. The Union of South Africa remains subject to the obligations to
transmit to the United Nations petitions from the inhabitants of the
Territory, as well as to submit an annual report to the satisfaction of the
United Nations in accordance with Article 6 of the Mandate.

D. The Union has substantially modified the terms of the Mandate
without the consent of the United Nations; that such modification is a
violation of Article 7 of the Mandate and Article 22 of the Covenant;
and that the consent of the United Nations is a necessary prerequisite
and condition to attempts on the part of the Union directly or indirectly
to modify the terms of the Mandate.

E. The Union has failed to promote to the utmost the material and
moral well-being and social progress of the inhabitants of the Territory;
its failure to do so is a violation of Article 2 of the Mandate and Article 22
SOUTH WEST AFRICA (JUDGMENT)

of the Covenant; and that the Union has the duty forthwith to take all
practicable action to fulfil its duties under such Articles.

F. The Union, in administering the Territory, has practised apartheid,
1.e. has distinguished as to race, color, national or tribal origin in
establishing the rights and duties of the inhabitants of the Terri-
tory; that such practice is in violation of Article 2 of the Mandate and
Article 22 of the Covenant; and that the Union has the duty forth-
with to cease the practice of apartheid in the Territory.

G. The Union, in administering the Territory, has adopted and ap-
plied legislation, regulations, proclamations, and administrative decrees
which are by their terms and in their application, arbitrary, unreason-
able, unjust and detrimental to human dignity; that the foregoing actions
by the Union violate Article 2 of the Mandate and Article 22 of the
Covenant; and that the Union has the duty forthwith to repeal and not
to apply such legislation, regulations, proclamations, and administrative
decrees,

H. The Union has adopted and applied legislation, administrative
regulations, and official actions which suppress the rights and liberties
of inhabitants of the Territory essential to their orderly evolution toward
self-government, the right to which is implicit in the Covenant of the
League of Nations, the terms of the Mandate,.and currently accepted
international standards, as embodied in the Charter of the United
Nations and the Declaration of Human Rights; that the foregoing ac-
tions by the Union violate Article 2 of the Mandate and Article 22 of
the Covenant; and that the Union has the duty forthwith to cease and
desist from any action which thwarts the orderly development of self.
government in the Territory.

I. The Union has exercised powers of administration and legislation
over the Territory inconsistent with the international status of the Terri-
tory; that the foregoing action by the Union is in violation of Article 2
of the Mandate and Article 22 of the Covenant; that the Union has the
duty to refrain from acts of administration and legislation which are
inconsistent with the international status of the Territory.

J. The Union has failed to render to the General Assembly of the
United Nations annual reports containing information with regard to
the Territory and indicating the measures it has taken to carry out its
obligations under the Mandate; that such failure is a violation of
Article 6 of the Mandate; and that the Union has the duty forthwith
to render such annual reports to the General Assembly.

K. The Union has failed to transmit to the General Assembly of the
United Nations petitions from the Territory’s inhabitants addressed to
the General Assembly; that such failure is a violation of the League of
Nations rules; and that the Union has the duty to transmit such peti-
tions to the General Assembly. ~

The Applicant reserves the right to request the Court to declare and
adjudge with respect to such other and further matters as the Applicant
may deem appropriate to present to the Court.

May it also please the Court to adjudge and declare whatever else it may
deem fit and proper in regard to this Application, and to make all necessary
12

SOUTH WEST AFRICA (JUDGMENT)

awards and orders, including an award of costs, to effectuate its deter-
minations”;

in the Memorials:

10

“Upon the basis of the foregoing allegations of fact, supplemented by
such facts as may be adduced in further testimony before this Court, and
the foregoing statements of law, supplemented by such other statements
of law as may be hereinafter made, may it please the Court to adjudge and
declare, whether the Government of the Union of South Africa is present
or absent, that:

1. South West Africa is a territory under the Mandate conferred upon
His Britannic Majesty by the Principal Allied and Associated Powers, to
be exercised on his behalf by the Government of the Union of South
Africa, accepted by his Britannic Majesty for and on behalf of the Govern-
ment of the Union of South Africa, and confirmed by the Council of
the League of Nations on December 17, 1920;

2. the Union of South Africa continues to have the international
obligations stated in Article 22 of the Covenant of the League of Nations
and in the Mandate for South West Africa as well as the obligation to
transmit petitions from the inhabitants of that Territory, the supervisory
functions to be exercised by the United Nations, to which the annual
reports and the petitions are to be submitted;

3. the Union, in the respects set forth in Chapter V of this Memorial
and summarized in Paragraphs 189 and 190 thereof, has practised apart-
heid, i.e., has distinguished as to race, color, national or tribal origin in
establishing the rights and duties of the inhabitants of the Territory; that
such practice is in violation of its obligations as stated in Article 2 of the
Mandate and Article 22 of the Covenant of the League of Nations; and
that the Union has the duty forthwith to cease the practice of apartheid
in the Territory;

4. the Union, by virtue of the economic, political, social and educational
policies applied within the Territory, which are described in detail in
Chapter V of this Memorial and summarized at Paragraph 190 thereof,
has failed to promote to the utmost the material and moral well-being and
social progress of the inhabitants of the Territory; that its failure to do so
is in violation of its obligations as stated in the second paragraph of
Article 2 of the Mandate and Article 22 of the Covenant; and that the
Union has the duty forthwith to cease its violations as aforesaid and to
take all practicable action to fulfill its duties under such Articles;

5. the Union, by word and by action, in the respects set forth in Chapter
VIII of this Memorial, has treated the Territory in a manner inconsistent
with the international status of the Territory, and has thereby impeded
opportunities for self-determination by the inhabitants of the Territory;
that such treatment is in violation of the Union’s obligations as stated in
the first paragraph of Article 2 of the Mandate and Article 22 of the
Covenant; that the Union has the duty forthwith to cease the actions sum-
marized in Section C of Chapter VIII herein, and to refrain from similar
actions in the future; and that the Union has the duty to accord full faith
and respect to the international status of the Territory;
13

SOUTH WEST AFRICA (JUDGMENT)

6. the Union, by virtue of the acts described in Chapter VII herein, has
established military bases within the Territory in violation of its obligations
as stated in Article 4 of the Mandate and Article 22 of the Covenant; that
the Union has the duty forthwith to remove all such military bases from
within the Territory; and that the Union has the duty to refrain from the
establishment of military bases within the Territory;

7. the Union has failed to render to the General Assembly of the United
Nations annual reports containing information with regard to the Territory
and indicating the measures it has taken to carry out its obligations under
the Mandate; that such failure is a violation of its obligations as stated
in Article 6 of the Mandate; and that the Union has the duty forthwith
to render such annual reports to the General Assembly;

8. the Union has failed to transmit to the General Assembly of the
United Nations petitions from the Territory’s inhabitants addressed to
the General Assembly; that such failure is a violation of its obligations as
Mandatory; and that the Union has the duty to transmit such petitions
to the General Assembly;

9. the Union, by virtue of the acts described in Chapters V, VI, VII and
VIII of this Memorial coupled with its intent as recounted herein, has
attempted to modify substantially the terms of the Mandate, without
the consent of the United Nations; that such attempt is in violation of its
duties as stated in Article 7 of the Mandate and Article 22 of the Covenant;
and that the consent of the United Nations is a necessary prerequisite
and condition precedent to attempts on the part of the Union directly
or indirectly to modify the terms of the Mandate.

The Applicant reserves the right to request the Court to declare and
adjudge in respect to events which may occur subsequent to the date this
Memorial is filed, including any event by which the Union’s juridical and
constitutional relationship to Her Britannic Majesty undergoes any sub-
stantial modification.

May it also please the Court to adjudge and declare whatever else it
may deem fit and proper in regard to this Memorial, and to make all
necessary awards and orders, including an award of costs, to effectuate
its determinations”;

in the Reply:

11

“Upon the basis of the allegations of fact in the Memorials, supple-
mented by those set forth herein or which may subsequently be adduced
before this Honourable Court, and the statements of law pertaining thereto,
as set forth in the Memorials and in this Reply, or by such other statements
as hereafter may be made, Applicants respectfully reiterate their prayer
that the Court adjudge and declare in accordance with, and on the basis
of, the Submissions set forth in the Memorials, which Submissions are
hereby reaffirmed and incorporated by reference herein.

Applicants further reserve the right to request the Court to declare and
adjudge in respect of events which may occur subsequent to the date of
filing of this Reply.

Applicants further reiterate and reaffirm their prayer that it may please
the Court to adjudge and declare whatever else it may deem fit and proper
in regard to the Memorials or to this Reply, and to make all necessary
14

in

in

SOUTH WEST AFRICA (JUDGMENT)

awards and orders, including an award of costs, to effectuate its deter-
minations.”

On behalf of the Government of South Africa,
the Counter-Memorial:

“Upon the basis of the statements of fact and law as set forth in the
several Volumes of this Counter-Memorial, may it please the Court to
adjudge and declare that the Submissions of the Governments of Ethiopia
and Liberia as recorded at pages 168 to 169 of their Memorials are un-
founded and that no declaration be made as claimed by them.

In particular Respondent submits:

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

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

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

that Respondent’s former obligations under the Mandate to report
and account to, and to submit to the supervision of, the Council of
the League of Nations, lapsed upon the dissolution of the League,
and have not been replaced by any similar obligations relative to
supervision by any organ of the United Nations or any other organi-
zation or body. Respondent is therefore under no obligation to submit
reports concerning its administration of South West Africa, or to
transmit petitions from the inhabitants of that Territory, to the United
Nations or any other body;

(b) Relative to Applicants’ Submissions Nos. 3, 4, 5, 6 and 9,
that Respondent has not, in any of the respects alleged, violated its
obligations as stated in the Mandate or in Article 22 of the Covenant
of the League of Nations”;
the Rejoinder:

“1, Upon the basis of the statements of law and fact set forth in the
Counter-Memorial, as supplemented in this Rejoinder and as may here-
after be adduced in further proceedings, Respondent reaffirms the Sub-
missions made in the Counter-Memorial and respectfully asks that such
Submissions be regarded as incorporated herein by reference.

2. Respondent further repeats its prayer that it may please the Court to
adjudge and declare that the Submissions of the Governments of Ethiopia
and Liberia, as recorded in the Memorials and as reaffirmed in the Reply,
are unfounded, and that no declaration be made as claimed by them.”

In the oral proceedings the following Submissions were presented by the
Parties:

at
12

On behalf of the Governments of Ethiopia and Liberia,
the hearing on 19 May 1965:
15

13

SOUTH WEST AFRICA (JUDGMENT)

“Upon the basis of allegations of fact, and statements of law set forth
in the written pleadings and oral proceedings herein, may it please the
Court to adjudge and declare, whether the Government of the Republic
of South Africa is present or absent, that:

(1) South West Africa is a territory under the Mandate conferred
upon His Britannic Majesty by the Principal Allied and Associated
Powers, to be exercised on his behalf by the Government of the Union
of South Africa, accepted by His Britannic Majesty for and on behalf of
the Government of the Union of South Africa, and confirmed by the
Council of the League of Nations on 17 December 1920;

(2) Respondent continues to have the international obligations stated
in Article 22 of the Covenant of the League of Nations and in the Mandate
for South West Africa as well as the obligation to transmit petitions from
the inhabitants of that Territory, the supervisory functions to be exercised
by the United Nations, to which the annual reports and the petitions are
to be submitted;

(3) Respondent, by laws and regulations, and official methods and
measures, which are set out in the pleadings herein, has practised apartheid,
i.e., has distinguished as to race, colour, national or tribal origin in estab-
lishing the rights and duties of the inhabitants of the Territory; that such
practice is in violation of its obligations as stated in Article 2 of the Man-
date and Article 22 of the Covenant of the League of Nations; and that
Respondent has the duty forthwith to cease the practice of apartheid in
the Territory;

(4) Respondent, by virtue of economic, political, social and educational
policies applied within the Territory, by means of laws and regulations,
and official methods and measures, which are set out in the pleadings
herein, has, in the light of applicable international standards or inter-
national legal norm, or both, failed to promote to the utmost the material
and moral well-being and social progress of the inhabitants of the Terri-
tory; that its failure to do so is in violation of its obligations as stated in
Article.2 of the Mandate and Article 22 of the Covenant; and that Res-
pondent has the duty forthwith to cease its violations as aforesaid and to
take all practicable action to fulfil its duties under such Articles;

(5) Respondent, by word and by action, has treated the Territory in a
manner inconsistent with the international status of the Territory, and
has thereby impeded opportunities for self-determination by the inhabitants
of the Territory; that such treatment is in violation of Respondent’s
obligations as stated in the first paragraph of Article 2 of the Mandate
and Article 22 of the Covenant; that Respondent has the duty forthwith
to cease such actions, and to refrain from similar actions in the future;
and that Respondent has the duty to accord full faith and respect to the
international status of the Territory;

(6) Respondent has established military bases within the Territory in
violation of its obligations as stated in Article 4 of the Mandate and
Article 22 of the Covenant; that Respondent has the duty forthwith to
remove all such military bases from within the Territory; and that Respon-
dent has the duty to refrain from the establishment of military bases within
the Territory;
16

SOUTH WEST AFRICA (JUDGMENT)

(7) Respondent has failed to render to the General Assembly of the
United Nations annual reports containing information with regard to the
Territory and indicating the measures it has taken to carry out its obliga-
tions under the Mandate; that such failure is a violation of its obligations
as stated in Article 6 of the Mandate; and that Respondent has the duty
forthwith to render such annual reports to the General Assembly;

(8) Respondent has failed to transmit to the General Assembly of the
United Nations petitions from the Territory’s inhabitants addressed to the
General Assembly; that such failure is a violation of its obligations as
Mandatory; and that Respondent has the duty to transmit such petitions
to the General Assembly;

(9) Respondent has attempted to modify substantially the terms of the
Mandate, without the consent of the United Nations; that such attempt
is in violation of its duties as stated in Article 7 of the Mandate and Article
22 of the Covenant; and that the consent of the United Nations is a neces-
sary prerequisite and condition precedent to attempts on the part of Respon-
dent directly or indirectly to modify the terms of the Mandate.

May it also please the Court to adjudge and declare whatever else it
may deem fit and proper in regard to these submissions, and to make all
necessary awards and orders, including an award of costs, to effectuate its
determinations.”

On behalf of the Government of South Africa,
at the hearing on 5 November 1965:

14

“We repeat and re-affirm our submissions, as set forth in Volume I,
page 6, of the Counter-Memorial and confirmed in Volume II, page 483,
of the Rejoinder. These submissions can be brought up-to-date without
any amendments of substance and then they read as follows:

Upon the basis of the statements of fact and law as set forth in Re-
spondent’s pleadings and the oral proceedings, may it please the Court
to adjudge and declare that the submissions of the Governments of Ethio-
pia and Liberia, as recorded at pages 69-72 of the verbatim record of
19 May 1965, C.R. 65/35, are unfounded and that no declaration be made
as claimed by them.

In particular, Respondent submits—

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

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

(a) Relative to Applicants’ submissions numbers 2, 7 and 8,
that the Respondent’s former obligations under the Mandate to report
and account to, and to submit to the supervision, of the Council of the
League of Nations, lapsed upon the dissolution of the League, and
have not been replaced by any similar obligations relative to super-
vision by any organ of the United Nations or any other organization
or body. Respondent is therefore under no obligation to submit
17 SOUTH WEST AFRICA (JUDGMENT)

reports concerning its administration of South West Africa, or to
transmit petitions from the inhabitants of that Territory, to the United
Nations or any other body;

(b) Relative to Applicants’ submissions numbers 3, 4, 5, 6 and 9,
that the Respondent has not, in any of the respects alleged, violated its
obligations as stated in the Mandate or in Article 22 of the Covenant
of the League of Nations.”

1. In the present proceedings the two applicant States, the Empire of
Ethiopia and the Republic of Liberia (whose cases are identical and will
for present purposes be treated as one case), acting in the capacity of
States which were members of the former League of Nations, put
forward various allegations of contraventions of the League of Nations
Mandate for South West Africa, said to have been committed by the
respondent State, the Republic of South Africa, as the administering
authority.

2. In an earlier phase of the case, which took place before the Court in
1962, four preliminary objections were advanced, based on Article 37
of the Court’s Statute and the jurisdictional clause (Article 7, paragraph 2)
of the Mandate for South West Africa, which were all of them argued by
the Respondent and treated by the Court as objections to its jurisdiction.
The Court, by its Judgment of 21 December 1962, rejected each of these
objections, and thereupon found that it had ‘‘jurisdiction to adjudicate
upon the merits of the dispute”.

3. In the course of the proceedings on the merits, comprising the ex-
change of written pleadings, the oral arguments of the Parties and the
hearing of a considerable number of witnesses, the Parties put forward
various contentions on such matters as whether the Mandate for South
West Africa was still in force,—and if so, whether the Mandatory’s
obligation under Article 6 of the Mandate to furnish annual reports
to the Council of the former League of Nations concerning its ad-
ministration of the mandated territory had become transformed by one
means or another into an obligation to furnish such reports to the
General Assembly of the United Nations, or had, on the other hand,
lapsed entirely;—whether there had been any contravention by the
Respondent of the second paragraph of Article 2 of the Mandate which
required the Mandatory to “promote to the utmost the material and
moral well-being and the social progress of the inhabitants of the
territory’’,—whether there had been any contravention of Article 4 of
the Mandate, prohibiting (except for police and local defence purposes)
the “military training of the natives’, and forbidding the establishment
of military or naval bases, or the erection of fortifications in the territory.
The Applicants also alleged that the Respondent had contravened
paragraph 1 of Article 7 of the Mandate (which provides that the Man-
date can only be modified with the consent of the Council of the League

15
18 SOUTH WEST AFRICA (JUDGMENT)

of Nations) by attempting to modify the Mandate without the consent
of the General Assembly of the United Nations which, so it was con-
tended, had replaced the Council of the League for this and other pur-
poses. There were other allegations also, which it is not necessary to
set out here.

4. On all these matters, the Court has studied the written pleadings
and oral arguments of the Parties, and has also given consideration
to the question of the order in which the various issues would fall to be
dealt with. In this connection, there was one matter that appertained
to the merits of the case but which had an antecedent character, namely
the question of the Applicants’ standing in the present phase of the
proceedings,—not, that is to say, of their standing before the Court
itself, which was the subject of the Court’s decision in 1962, but the
question, as a matter of the merits of the case, of their legal right or
interest regarding the subject-matter of their claim, as set out in their
final submissions.

5. Despite the antecedent character of this question, the Court was
unable to go into it until the Parties had presented their arguments
on the other questions of merits involved. The same instruments are
relevant to the existence and character of the Respondent’s obligations
concerning the Mandate as are also relevant to the existence and character
of the Applicants’ legal right or interest in that regard. Certain humani-
tarian principles alleged to affect the nature of the Mandatory’s obliga-
tions in respect of the inhabitants of the mandated territory were also
pleaded as a foundation for the right of the Applicants to claim in their
own individual capacities the performance of those same obligations.
The implications of Article 7, paragraph 1, of the Mandate, referred to
above, require to be considered not only in connection with paragraph (9)
and certain aspects of paragraph (2) of the Applicants’ final submis-
sions, but also, as will be seen in due course, in connection with that
of the Applicants’ standing relative to the merits of the case. The ques-
tion of the position following upon the dissolution of the League of
Nations in 1946 has the same kind of double aspect, and so do other
matters.

6. The Parties having dealt with all the elements involved, it became
the Court’s duty to begin by considering those questions which had
such a character that a decision respecting any of them might render
unnecessary an enquiry into other aspects of the matter. There are two
questions in the present case which have this character. One is whether
the Mandate still subsists at all, as the Applicants maintain that it does
in paragraph (1) of their final submissions; for if it does not, then
clearly the various allegations of contraventions of the Mandate by the
Respondent fall automatically to the ground. But: this contention,
namely as to the continued subsistence of the Mandate, is itself part of
the Applicants’ whole claim as put forward in their final submissions,
being so put forward solely in connection with the remaining parts of
the claim, and as the necessary foundation for these. For this reason
the other question, which (as already mentioned) is that of the Appli-

16
19 SOUTH WEST AFRICA (JUDGMENT)

cants’ legal right or interest in the subject-matter of their claim, is even
more fundamental.
*

7. Itis accordingly to this last question that the Court must now turn.
Before doing so however, it should be made clear that when, in the
present Judgment, the Court considers what provisions of the Mandate
for South West Africa invoive a legal right or interest for the Applicants,
and what not, it does so without pronouncing upon, and wholly without
prejudice to, the question of whether that Mandate is still in force.
The Court moreover thinks it necessary to state that its 1962 decision
on the question of competence was equally given without prejudice to
that of the survival of the Mandate, which is a question appertaining
to the merits of the case. It was not in issue in 1962, except in the sense
that survival had to be assumed for the purpose of determining the
purely jurisdictional issue which was all that was then before the Court.
It was made clear in the course of the 1962 proceedings that it was upon
this assumption that the Respondent was arguing the jurisdictional issue;
and the same view is reflected in the Applicants’ final submissions (1)
and (2) in the present proceedings, the effect of which is to ask the
Court to declare (inter alia) that the Mandate still subsists, and that
the Respondentis still subject to the obligations it provides for. Itis, cor-
respondingly, a principal part of the Respondent’s case on the merits that
since (as it contends) the Mandate no longer exists, the Respondent has no
obligations under it, and thereforecannot be in breach of the Mandate.
This is a matter which, for reasons to be given later in another connection,
but equally applicable here, could not have been the subject of any final
determination by a decision on a purely preliminary point of jurisdiction.

8. The Respondent’s final submissions in the present proceedings ask
simply for a rejection of those of the Applicants, both generally and in
detail. But quite apart from the recognized right of the Court, implicit
in paragraph 2 of Article 53 of its Statute, to select proprio motu the
basis of its decision, the Respondent did in the present phase of the case,
particularly in its written pleadings, deny that the Applicants had any
legal right or interest in the subject-matter of their claim,—a denial
which, at this stage of the case, clearly cannot have been intended merely
as an argument against the applicability of the jurisdictional clause of
the Mandate. In its final submissions the Respondent asks the Court,
upon the basis, inter alia, of “the statements of fact and law as set forth
in [its] pleadings and the oral proceedings”, to make no declaration
as claimed by the Applicants in their final submissions.

*
* *

9. The Court now comes to the basis of its decision in the present
proceedings. In order to lead up to this, something must first be said
about the structure characterizing the Mandate for South West Africa,

17
20 SOUTH WEST AFRICA (JUDGMENT)

in common with the other various mandates; and here it is necessary to
stress that no true appreciation of the legal situation regarding any
particular mandate, such as that for South West Africa, can be arrived
at unless it is borne in mind that this Mandate was only one amongst
a number of mandates, the Respondent only one amongst a number
of mandatories, and that the salient features of the mandates system as
a whole were, with exceptions to be noted where material, applicable
indifferently to all the mandates. The Mandate for South West Africa
was not a special case.

*

10. The mandates system, as is well known, was formally instituted by
Article 22 of the Covenant of the League of Nations. As there indicated,
there were to be three categories of mandates, designated as ‘A’, ‘B’ and
‘C’ mandates respectively, the Mandate for South West Africa being
one of the ‘C’ category. The differences between these categories lay
in the nature and geographical situation of the territories concerned,
the state of development of their peoples, and the powers accordingly
to be vested in the administering authority, or mandatory, for each
territory placed under mandate. But although it was by Article 22
of the League Covenant that the system as such was established, the
precise terms of each mandate, covering the rights and obligations
of the mandatory, of the League and its organs, and of the individual
members of the League, in relation to each mandated territory, were
set out in separate instruments of mandate which, with one exception
to be noted later, took the form of resolutions of the Council of the
League.

11. These instruments, whatever the differences between certain of their
terms, had various features in common as regards their structure. For
present purposes, their substantive provisions may be regarded as falling
into two main categories. On the one hand, and of course as the principal
element of each instrument, there were the articles defining the manda-
tory’s powers, and its obligations in respect of the inhabitants of the
territory and towards the League and its organs. These provisions,
relating to the carrying out of the mandates as mandates, will hereinafter
be referred to as “conduct of the mandate”, or simply ‘‘conduct”’
provisions. On the other hand, there were articles conferring in different
degrees, according to the particular mandate or category of mandate,
certain rights relative to the mandated territory, directly upon the
members of the League as individual States, or in favour of their
nationals. Many of these rights were of the same kind as are to be found
in certain provisions of ordinary treaties of commerce, establishment
and navigation concluded between States. Rights of this kind will
hereinafter be referred to as “special interests” rights, embodied in the
“special interests” provisions of the mandates. As regards the ‘A’ and
‘B’ mandates (particularly the latter) these rights were numerous and
figured prominently—a fact which, as will be seen later, is significant
for the case of the ‘C’ mandates also, even though, in the latter case,

18
21 SOUTH WEST AFRICA (JUDGMENT)

they were confined to provisions for freedom for missionaries (“nationals
of any State Member of the League of Nations”) to “enter into, travel
and reside in the territory for the purpose of prosecuting their calling’ —
(Mandate for South West Africa, Article 5). In the present case, the
dispute between the Parties relates exclusively to the former of these two
categories of provisions, and not to the latter.

12. The broad distinction just noticed was a genuine, indeed an obvious
one. Even if it may be the case that certain provisions of some of the
mandates (such as for instance the “open door” provisions of the ‘A’
and ‘B’ mandates) can be regarded as having a double aspect, this does
not affect the validity or relevance of the distinction. Such provisions
would, in their “‘conduct of the mandate” aspect, fall under that head;
and in their aspect of affording commercial opportunities for members of
the League and their nationals, they would come under the head of
“special interests” clauses. It is natural that commercial provisions of
this kind could redound to the benefit of a mandated territory and its
inhabitants in so far as the use made of them by States members of the
League had the effect of promoting the economic or industrial develop-
ment of the territory. In that sense and to that extent these provisions
could no doubt contribute to furthering the aims of the mandate; and
their due implementation by the mandatories was in consequence a matter
of concern to the League and its appropriate organs dealing with man-
dates questions. But this was incidental, and was never their primary
object. Their primary object was to benefit the individual members of
the League and their nationals. Any action or intervention on the part
of member States in this regard would be for that purpose—not in
furtherance of the mandate as such.

13. In addition to the classes of provisions so far noticed, every instru-
ment of mandate contained a jurisdictional clause which, with a single ex-
ception to be noticed in due course, was in identical terms for each man-
date, whether belonging to the ‘A’, ‘B’ or ‘C’ category. The language and
effect of this clause will be considered later; but it provided for a reference
of disputes to the Permanent Court of International Justice and, so the
Court found in the first phase of the case, as already mentioned, this
reference was now, by virtue of Article 37 of the Court’s Statute, to be
construed as a reference to the present Court. Another feature of the
mandates generally, was a provision according to which their terms
could not be modified without the consent of the Council of the League.
A further element, though peculiar to the ‘C’ mandates, may be noted:
it was provided both by Article 22 of the Covenant of the League and
by a provision of the instruments of ‘C’ mandates that, subject to certain
conditions not here material, a ‘C’ mandatory was to administer the
mandated territory “as an integral portion of its own territory”’.
22 SOUTH WEST AFRICA (JUDGMENT)

14. Having regard to the situation thus outlined, and in particular to
the distinction to be drawn between the “conduct” and the “special
interests” provisions of the various instruments of mandate, the question
which now arises for decision by the Court is whether any legal right
or interest exists for the Applicants relative to the Mandate, apart
from such as they may have in respect of the latter category of provisions;
—a matter on which the Court expresses no opinion, since this category
is not in issue in the present case. In respect of the former category—the
“conduct” provisions—the question which has to be decided is whether,
according to the scheme of the mandates and of the mandates system
as a whole, any legal right or interest (which is a different thing from
a political interest) was vested in the members of the League of Nations,
including the present Applicants, individually and each in its own
separate right to call for the carrying out of the mandates as regards
their “conduct” clauses;—or whether this function must, rather, be
regarded as having appertained exclusively to the League itself, and not
to each and every member State, separately and independently. In other
words, the question is whether the various mandatories had any direct
obligation towards the other members of the League individually, as
regards the carrying out of the “conduct” provisions of the mandates.

15. If the answer to be given to this question should have the effect
that the Applicants cannot be regarded as possessing the legal right or
interest claimed, it would follow that even if the various allegations of
contraventions of the Mandate for South West Africa on the part of
the Respondent were established, the Applicants would still not be
entitled to the pronouncements and declarations which, in their final
submissions, they ask the Court to make. This is no less true in respect
of their final submissions (1) and (2) than of the others. In these two
submissions, the Applicants in substance affirm, and ask the Court to
declare, the continued existence of the Mandate and of the Respondent’s
obligations thereunder. In the present proceedings however, the Court
is concerned with the final submissions of the Applicants solely in the
context of the “conduct” provisions of the Mandate. It has not to
pronounce upon any of the Applicants’ final submissions as these might
relate to any question of “special interests” if a claim in respect of
these had been made. The object of the Applicants’ submissions (1) and
(2) is to provide the basis for their remaining submissions, which are
made exclusively in the context of a claim about provisions concerning
which the question immediately arises whether they are provisions in
respect of which the Applicants have any legal right or interest. If the
Court finds that the Applicants do have such a right or interest, it would
then be called upon to pronounce upon the first of the Applicants’
final submissions—(continued existence of the Mandate), since if that
one should be rejected, the rest would automatically fall to the ground.
If on the other hand the Court should find that such a right or interest
does not exist, it would obviously be inappropriate and misplaced to
make any pronouncement on this first submission of the Applicants, or

20
23 SOUTH WEST AFRICA (JUDGMENT)

on the second, since in the context of the present case the question of the
continued existence of the Mandate, and of the Respondent’s obligations
thereunder, would arise solely in connection with provisions concerning
which the Court had found that the Applicants lacked any legal right
or interest.

*
* *

16. It is in their capacity as former members of the League of Nations
that the Applicants appear before the Court; and the rights they claim
are those that the members of the League are said to have been invested
with in the time of the League. Accordingly, in order to determine
what the rights and obligations of the Parties relative to the Mandate
were and are (supposing it still to be in force, but without prejudice to
that question); and in particular whether (as regards the Applicants)
these include any right individually to call for the due execution of the
“conduct” provisions, and (for the Respondent) an obligation to be
answerable to the Applicants in respect of its administration of the
Mandate, the Court must place itself at the point in time when the
mandates system was being instituted, and when the instruments of
mandate were being framed. The Court must have regard to the situation
as it was at that time, which was the critical one, and to the intentions
of those concerned as they appear to have existed, or are reasonably
to be inferred, in the light of that situation. Intentions that might have
been formed if the Mandate had been framed at a much later date,
and in the knowledge of circumstances, such as the eventual dissolution
of the League and its aftermath, that could never originally have been
foreseen, are not relevant. Only on this basis can a correct appreciation
of the legal rights of the Parties be arrived at. This view is supported by
a previous finding of the Court (Rights of United States Nationals in
Morocco, I.C.J. Reports 1952, at p. 189), the effect of which is that the
meaning of a juridical notion in a historical context, must be sought by
reference to the way in which that notion was understood in that context.

17. It follows that any enquiry into the rights and obligations of the
Parties in the present case must proceed principally on the basis of
considering, in the setting of their period, the texts of the instruments
and particular provisions intended to give juridical expression to the
notion of the “sacred trust of civilization” by instituting a mandates
system.

18. The enquiry must pay no less attention to the juridical character
and structure of the institution, the League of Nations, within the
framework of which the mandates system was organized, and which
inevitably determined how this system was to operate,—by what methods,
—through what channels,—and by means of what recourses. One
fundamental element of this juridical character and structure, which in
a sense governed everything else, was that Article 2 of the Covenant
provided that the “action of the League under this Covenant shall be
effected through the instrumentality of an Assembly and of a Council,

21
24 SOUTH WEST AFRICA (JUDGMENT)

with a permanent Secretariat’. If the action of the League as a whole
was thus governed, it followed naturally that the individual member
States could not themselves act differently relative to League matters,
unless it was otherwise specially so provided by some article of the
Covenant.

19. As is well known, the mandates system originated in the decision
taken at the Peace Conference following upon the world war of 1914-
1918, that the colonial territories over which, by Article 119 of the
Treaty of Versailles, Germany renounced “‘all her rights and titles” in
favour of the then Principal Allied and Associated Powers, should not
be annexed by those Powers or by any country affiliated to them, but
should be placed under an international régime, in the application to
the peoples of those territories, deemed “‘not yet able to stand by them-
selves”, of the principle, declared by Article 22 of the League Covenant,
that their “‘well-being and development” should form “a sacred trust of
civilization”’.

20. The type of régime specified by Article 22 of the Covenant as
constituting the “‘best method of giving practical effect to this principle”
was that “‘the tutelage of such peoples should be entrusted to advanced
nations ... who are willing to accept it’’,—and here it was specifically
added that it was to be “on behalf of the League” that “this tutelage
should be exercised by those nations as Mandatories’’. It was not provided
that the mandates should, either additionally or in the alternative, be
exercised on behalf of the members of the League in their individual
capacities. The mandatories were to be the agents of, or trustees for
the League,—and not of, or for, each and every member of it individually.

21. The same basic idea was expressed again in the third paragraph of
the preamble to the instrument of mandate for South West Africa,
where it was recited that the Mandatory, in agreeing to accept the
Mandate, had undertaken “to exercise it on behalf of the League of
Nations”. No other behalf was specified in which the Mandatory had
undertaken, either actually or potentially, to exercise the Mandate.
The effect of this recital, as the Court sees it, was to register an implied
recognition (a) on the part of the Mandatory of the right of the League,
acting as an entity through its appropriate organs, to require the due
execution of the Mandate in respect of its “‘conduct” provisions; and
(b) on the part of both the Mandatory and the Council of the League,
of the character of the Mandate as a juridical régime set within the
framework of the League as an institution. There was no similar recogni-
tion of any right as being additionally and independently vested in any
other entity, such as a State, or as existing outside or independently of
the League as an institution; nor was any undertaking at all given by
the Mandatory in that regard.

22. It was provided by paragraph 1 of Article 22 of the Covenant that
“securities for the performance” of the sacred trust were to be “embodied

22
25 SOUTH WEST AFRICA (JUDGMENT)

in this Covenant”. This important reference to the “performance” of
the trust contemplated, as it said, securities to be afforded by the Cove-
nant itself. By paragraphs 7 and 9 respectively of Article 22, every
mandatory was to “render to the Council [of the League—not to any
other entity] an annual report in reference to the territory committed
to its charge”; and a permanent commission, which came to be known
as the Permanent Mandates Commission, was to be constituted ‘to
receive and examine” these annual reports and “‘to advise the Council
on all matters relating to the observance of the mandates”. The Perma-
nent Mandates Commission alone had this advisory role, just as the
Council alone had the supervisory function. The Commission consisted
of independent experts in their own right, appointed in their personal
capacity as such, not as representing any individual member of the
League or the member States generally.

23. The obligation to furnish annual reports was reproduced in the
instruments of mandate themselves, where it was stated that they were
to be rendered “‘to the satisfaction of the Council”. Neither by the
Covenant nor by the instruments of mandate, was any role reserved to
individual League members in respect of these reports, furnishable to
the Council, and referred by it to the Permanent Mandates Commission.
It was the Council that had to be satisfied, not the individual League
members. The part played by the latter, other than such as were members
of the Council, was exclusively through their participation in the work
of the Assembly of the League when, acting under Article 3 of the
Covenant, that organ exercised in respect of mandates questions its power
to deal with “any matter within the sphere of action of the League’.
It was as being within the sphere of the League as an institution that
mandates questions were dealt with by its Assembly.

24. These then were the methods, and the only methods, contemplated
by the Covenant as “securities” for the performance of the sacred trust,
and it was in the Covenant that they were to be embodied. No security
taking the form of a right for every member of the League separately
and individually to require from the mandatories the due performance of
their mandates, or creating a liability for each mandatory to be answer-
able to them individually,—-still less conferring a right of recourse to the
Court in these regards,—was provided by the Covenant.

25. This result is precisely what was to be expected from the fact that
the mandates system was an activity of the League of Nations, that is
to say of an entity functioning as an institution. In such a setting, rights
cannot be derived from the mere fact of membership of the organization
in itself: the rights that member States can legitimately claim must be
derived from and depend on the particular terms of the instrument
constitutive of the organization, and of the other instruments relevant

23
26 SOUTH WEST AFRICA (JUDGMENT)

in the context. This principle is necessarily applicable as regards the
question of what rights member States can claim in respect of a régime
such as results from the mandates system, functioning within the frame-
work of the organization. For this reason, and in this setting, there
could, as regards the carrying out of the “‘conduct” provisions of the
various mandates, be no question of any legal tie between the mandatories
and other individual members. The sphere of authority assigned to the
mandatories by decisions of the organization could give rise to legal ties
only between them severally, as mandatories, and the organization itself.
The individual member States of the organization could take part in
the administrative process only through their participation in the
activities of the organs by means of which the League was entitled to
function. Such participation did not give rise to any right of direct
intervention relative to the mandatories: this was, and remained, the
prerogative of the League organs.

26. On the other hand, this did not mean that the member States were
mere helpless or impotent spectators of what went on, or that they
lacked all means of recourse. On the contrary, as members of the League
Assembly, or as members of the League Council, or both, as the case
might be, they could raise any question relating to mandates generally,
or to some one mandate in particular, for consideration by those organs,
and could, by their participation, influence the outcome. The records
both of the Assembly and of other League organs show that the members
of the League in fact made considerable use of this faculty. But again,
its exercise—always through the League—did not confer on them any
separate right of direct intervention. Rather did it bear witness to the
absence of it.

27. Such is the background against which must be viewed the provi-
sions by which the authority of the various mandatories was defined, and
which the Court will now proceed to consider.

Ed

28. By paragraph 8 of Article 22 of the Covenant, it was provided that
the “degree of authority, control or administration” which the various
mandatories were to exercise, was to be “explicitly defined in each case
by the Council’’, if these matters had not been “previously agreed upon
by the Members of the League”. The language of this paragraph was
reproduced, in effect textually, in the fourth paragraph of the preamble
to the Mandate for South West Africa, which the League Council itself
inserted, thus stating the basis on which it was acting in adopting the
resolution of 17 December 1920, in which the terms of mandate were
set out. Taken by itself this necessarily implied that these terms had not
been “previously agreed upon by the Members of the League”. There
is however some evidence in the record to indicate that in the context
of the mandates, the allusion to agreement on the part of “the Members
of the League” was regarded at the time as referring only to the five
Principal Allied and Associated Powers engaged in the drafting; but this

24
27 SOUTH WEST AFRICA (JUDGMENT)

of course could only lend emphasis to the view that the members of the
League generally were not considered as having any direct concern with
the setting up of the various mandates; and the record indicates that
they were given virtually no information on the subject until a very
late stage.

29. There is also evidence that the delays were due to difficulties over
certain of the commercial aspects of the mandates, but that the Principal
Powers had already decided that the mandates should in any event be
issued by the Council of the League, thereby giving them a definitely
institutional basis. Preliminary and private negotiations and considera-
tion of drafts by member States, or certain of them, is a normal way
of leading up to the resolutions adopted by an international organ, and
in no way affects their character as eventually adopted. Accordingly the
League Council proceeded to issue the Mandate which, being in the
form of a resolution, did not admit of those processes of separate
signature and ratification generally utilized at the time in all cases where
participation on a “party” basis was intended. This method was common
to all the mandates, except the ‘A’ mandate for Iraq which, significantly,
was embodied in a series of treaties between the United Kingdom, as
Mandatory, and Iraq. No other member of the League was a party
to these treaties. It was to the League Council alone that the United
Kingdom Government reported concerning the conclusion of these
treaties, and to which it gave assurances that the general pattern of their
contents would be the same as for the other mandates.

30. Nor did even the Principal Allied and Associated Powers as a group
have the last word on the drafting of the Mandate. This was the Coun-
cil’s. In addition to the insertion as already mentioned, of the fourth
paragraph of the preamble, the Council made a number of alterations
in the draft before finally adopting it. One of these is significant in the
present context. Unlike the final version of the jurisdictional clause of
the Mandate as issued by the Council and adopted for all the mandates,
by which the Mandatory alone undertook to submit to adjudication in
the event of a dispute with another member of the League, the original
version would have extended the competence of the Court equally to
disputes referred to it by the Mandatory as plaintiff, as well as to disputes
arising between other members of the League inter se. The reason for
the change effected by the Council is directly relevant to what was
regarded as being the status of the individual members of the League
in relation to the Mandate. This reason was that, as was soon perceived,
an obligation to submit to adjudication could not be imposed upon
them without their consent. But of course, had they been regarded as
“parties” to the instrument of Mandate, as if to a treaty, they would
thereby have been held to have given consent to all that it contained,
including the jurisdictional clause. Clearly they were not so regarded.

25
28 SOUTH WEST AFRICA (JUDGMENT)

31. Another circumstance calling for notice is that, as mentioned
earlier, the Mandate contained a clause—paragraph 1 of Article 7 (and
similarly in the other mandates)—providing that the consent of the Coun-
cil of the League was required for any modification of the terms of the
Mandate; but it was not stated that the consent of individual members of
the League was additionally required. There is no need to enquire
whether, in particular cases—for instance for the modification of any
of their “special interests’ under the mandate—the consent of the
member States would have been necessary, since what is now in question
is the “conduct” provisions. As to these, the special position given to the
Council of the League by paragraph 1 of Articie 7 confirms the view
that individual member States were not regarded as having a separate
legal right or interest of their own respecting the administration of the
Mandate. It is certainly inconsistent with the view that they were con-
sidered as separate parties to the instrument of mandate.

*

32. The real position of the individual members of the League relative
to the various instruments of mandate was a different one. They were
not parties to them; but they were, to a limited extent, and in certain
respects only, in the position of deriving rights from these instruments.
Not being parties to the instruments of mandate, they could draw
from them only such rights as these unequivocally conferred, directly
or by a clearly necessary implication. The existence of such rights could
not be presumed or merely inferred or postulated. But in Article 22
of the League Covenant, only the mandatories are mentioned in con-
nection with the carrying out of the mandates in respect of the inhabitants
of the mandated territories and as regards the League organs. Except
in the procedural provisions of paragraph 8 (the “if not previously
agreed upon” clause) the only mention of the members of the League
in Article 22 is in quite another context, namely at the end of paragraph 5,
where it is provided that the mandatories shall “also secure equal
opportunities for the trade and commerce of other Members of the
League”. It is the same in the instruments of mandate. Apart from the
jurisdictional clause, which will be considered later, mention of the
members of the League is made only in the “special interests” provisions
of these instruments. It is in respect of these interests alone that any
direct link is established between the mandatories and the members of
the League individually. In the case of the ““conduct” provisions, mention
is made only of the mandatory and, where required, of the appropriate
organ of the League. The link in respect of these provisions is with the
League or League organs alone.

*
* *

33. Accordingly, viewing the matter in the light of the relevant texts
and instruments, and having regard to the structure of the League,

26
29 SOUTH WEST AFRICA (JUDGMENT)

within the framework of which the mandates system functioned, the
Court considers that even in the time of the League, even as members
of the League when that organization still existed, the Applicants did
not, in their individual capacity as States, possess any separate self-
contained right which they could assert, independently of, or additionally
to, the right of the League, in the pursuit of its collective, institutional
activity, to require the due performance of the Mandate in discharge
of the “sacred trust”. This right was vested exclusively in the League,
and was exercised through its competent organs. Each member of the
League could share in its collective, institutional exercise by the League,
through their participation in the work of its organs, and to the extent
that these organs themselves were empowered under the mandates
system to act. By their right to activate these organs (of which they
made full use), they could procure consideration of mandates questions
as of other matters within the sphere of action of the League. But no
right was reserved to them, individually as States, and independently of
their participation in the institutional activities of the League, as com-
ponent parts of it, to claim in their own name,—still less as agents
authorized to represent the League,—the right to invigilate the sacred
trust,—to set themselves up as separate custodians of the various
mandates. This was the role of the League organs.

34. To put this conclusion in another way, the position was that under
the mandates system, and within the general framework of the League
system, the various mandatories were responsible for their conduct of
the mandates solely to the League—in particular to its Council—and
were not additionally and separately responsible to each and every
individual State member of the League. If the latter had been given a
legal right or interest on an individual “State” basis, this would have
meant that each member of the League, independently of the Council
or other competent League organ, could have addressed itself directly
to every mandatory, for the purpose of calling for explanations or
justifications of its administration, and generally to exact from the
mandatory the due performance of its mandate, according to the view
which that State might individually take as to what was required for
the purpose.

35. Clearly no such right existed under the mandates system as con-
templated by any of the relevant instruments. It would have involved
a position of accountability by the mandatories to each and every
member of the League separately, for otherwise there would have been
nothing additional to the normal faculty of participating in the collective
work of the League respecting mandates. The existence of such an
additional right could not however be reconciled with the way in which
the obligation of the mandatories, both under Article 22 of the League
Covenant, and (in the case of South West Africa) Article 6 of the
instrument of Mandate, was limited to reporting to the League Council,

27
30 SOUTH WEST AFRICA (JUDGMENT)

and to its satisfaction alone. Such a situation would have been particularly
unimaginable in relation to a system which, within certain limits, allowed
the mandatories to determine for themselves by what means they would
carry out their mandates: and a fortiori would this have been so in the
case of a ‘C’ mandate, having regard to the special power of administra-
tion as “an integral portion of its own territory” which, as already
noted, was conferred upon the mandatory respecting this category of
mandate.

36. The foregoing conclusions hold good whether the League is
regarded as having possessed the kind of corporate juridical personality
that the Court, in its Advisory Opinion in the case of Reparation for
Injuries Suffered in the Service of the United Nations (I.C.J. Reports 1949,
p. 174), found the United Nations to be invested with,—or whether the
League is regarded as a collectivity of States functioning on an institu-
tional basis, whose collective rights in respect of League matters were, as
Article 2 of the Covenant implied, exercisable only through the appro-
priate League organs, and not independently of these.

37. In order to test the conclusions thus reached, it is legitimate to have
regard to the probable consequences of the view contended for by the
Applicants,—or at any rate to the possibilities that would have been
opened up if each member of the League had individually possessed
the standing and rights now claimed. One question which arises is that
of how far the individual members of the League would have been in
a position to play the role ascribed to them. The Applicants, as part of
their argument in favour of deeming the functions previously discharged
by the Council of the League to have passed now to the General Assembly
of the United Nations, insisted on the need for “informed” dealings
with the Mandatory: only a body sufficiently endowed with the necessary
knowledge, experience and expertise could, it was said, adequately
discharge the supervisory role. Yet at the same time it was contended
that individual members of the League,—not directly advised by the
Permanent Mandates Commission,—not (unless members of the Coun-
cil) in touch with the mandates questions except through their partici-
pation in the work of the League Assembly,—nevertheless possessed a
right independently to confront the various mandatories over their
administration of the mandates, and a faculty to call upon them to alter
their policies and adjust their courses accordingly. The two contentions
are inconsistent, and the second affronts all the probabilities.

38. No less difficult than the position of a mandatory caught between
a number of possible different expressions of view, would have been

28
31 SOUTH WEST AFRICA (JUDGMENT)

that of the League Council whose authority must have been undermined,
and its action often frustrated, by the existence of some 40 or 50 in-
dependent centres of invigilatory rights.

39. Equally inconsistent would the position claimed for individual
League members have been with that of the mandatory as a member of
the Council on mandates questions. As such, the mandatory, on the basis
of the normal League voting rule, and by virtue of Article 4, paragraphs
5 and 6, and Article 5, paragraph 1, of the Covenant, possessed a vote
necessary to the taking of any formal Council decision on a question of
substance relative to its mandate (at least in the sense that, if cast, it
must not be adversely cast); so that, in the last resort, the assent, or
non-dissent, of the mandatory had to be negotiated.

40. In the opinion of the Court, those who intended the one system
cannot simultaneously have intended the other: and if in the time of
the League,—if as members of the League,—the Applicants did not
possess the rights contended for,—evidently they do not possess them
now. There is no principle of law which, following upon the dissolution
of the League, would operate to invest the Applicants with rights they
did not have even when the League was still in being.

41. The Court will now turn to the various contentions that have
been or might be advanced in opposition to the view it takes; and
will first deal with a number of points which have a certain general
affinity.

42. Firstly, it may be represented that the consequences described
above as being rendered possible if individual members of the League had
had the rights now contended for by the Applicants, are unreal,—because
the true position under the mandates system was that, even if in all normal
circumstances the mandatories were responsible to the Council of the
League alone, nevertheless the individual members of the League pos-
sessed a right of last resort to activate the Court under the jurisdictional
clause if any mandate was being contravened. The Court will consider
the effect of the jurisdictional clause later; but quite apart from that,
the argument is misconceived. It is evident that any such right would
have availed nothing unless the members of the League had individually
possessed substantive rights regarding the carrying out of the mandates
which they could make good before the Court, if and when they did
activate it. If, however, they possessed such rights then, as already noted,
irrespective of whether they went to the Court or not, they were entitled
at all times, outside League channels, to confront the mandatories over
the administration of their mandates, just as much as in respect of their
“special interests” under the mandate. The theory that the members of

29
32 SOUTH WEST AFRICA (JUDGMENT)

the League possessed such rights, but were precluded from exercising
them unless by means of recourse to adjudication, constitutes an essen-
tially improbable supposition for which the relevant texts afford no
warrant. These texts did not need to impose any such limitation, for
the simple reason that they did not create the alleged rights.

43. Again, it has been pointed out that there is nothing unprecedented
in a situation in which the supervision of a certain matter is, on the
political plane, entrusted to a given body or organ, but where certain
individual States—not all of them necessarily actual parties to the in-
struments concerned—have parallel legal rights in regard to the same
matter, which they can assert in specified ways. This is true but irrele-
vant, since for the present purposes the question is not whether such
rights could be, but whether they were in fact conferred. In various
instances cited by way of example, not only was the intention to confer
the right and its special purpose quite clear,—it was also restricted to
a small group of States, members, either permanent or elected, of the
supervisory organ concerned. In such a case, the right granted was,
in effect, part of the institutional or conventional machinery of control,
and its existence could occasion no difficulty or confusion. This type
of case, which will be further discussed later, in connection with the
jurisdictional clause of the mandates, is not the same as the present one.

44. Next, it may be said that a legal right or interest need not necessarily
relate to anything material or “tangible”, and can be infringed even
though no prejudice of a material kind has been suffered. In this con-
nection, the provisions of certain treaties and other international in-
struments of a humanitarian character, and the terms of various arbitral
and judicial decisions, are cited as indicating that, for instance, States
may be entitled to uphold some general principle even though the particu-
lar contravention of it alleged has not affected their own material in-
terests;—that again, States may have a legal interest in vindicating a
principle of international law, even though they have, in the given
case, suffered no material prejudice, or ask only for token damages.
Without attempting to discuss how far, and in what particular circum-
stances, these things might be true, it suffices to point out that, in holding
that the Applicants in the present case could only have had a legal
right or interest in the “special interests” provisions of the Mandate,
the Court does not in any way do so merely because these relate to a
material or tangible object. Nor, in holding that no legal right or interest
exists for the Applicants, individuatly as States, in respect of the “con-
duct” provisions, does the Court do so because any such right or in-
terest would not have a material or tangible object. The Court simply
holds that such rights or interests, in order to exist, must be clearly
vested in those who claim them, by some text or instrument, or rule
of law;—and that in the present case, none were ever vested in individual
members of the League under any of the relevant instruments, or as a

30
33 SOUTH WEST AFRICA (JUDGMENT)

constituent part of the mandates system as a whole, or otherwise.

45. Various miscellaneous propositions are also advanced: the Man-
date is more deserving of protection than the “special interests” of any
particular State;—there would be nothing extraordinary in a State
having a legal right to vindicate a purely altruistic interest;—and so
forth. But these are not really legal propositions: they do not eliminate
the need to find the particular provisions or rules of law the existence of
which they assume, but do not of themselves demonstrate.

+

46. It is also asked whether, even supposing that the Applicants only
had an interest on the political level respecting the conduct of the Man-
date, this would not have sufficed to enable them to seek a declaration
from the Court as to what the legal position was under the Mandate,
so that, for instance, they could know whether they would be on good
ground in bringing before the appropriate political organs, acts of the
mandatory thought to involve a threat to peace or good international
relations.

47. The Court is concerned in the present proceedings only with the
rights which the Applicants had as former members of the League of
Nations—for it is in that capacity alone that they are now appearing.
If the contention above described is intended to mean that because, for
example, the Applicants would, under paragraph 2 of Article 11 of the
League Covenant, have had “the friendly right . . . to bring to the atten-
tion of the Assembly or of the Council any circumstance ... which
threatens to disturb international peace or the good understanding ...
upon which peace depends”, they would therefore also—and on that ac-
count—have had the right to obtain a declaration from the Court as
to what the mandatory’s obligations were, and whether a violation of
these had occurred ;—if this is the contention, the Court can only reply
to it in the negative. A provision such as Article 11 of the Covenant
could at most furnish a motive why the Applicants (or other members
of the League) might wish to know what the legal position was. It could
not of itself give them any right to procure this knowledge from the
Court which they would not otherwise have had under the Mandate
itself.

48. On the other hand, an appropriate organ of the League such as the
Council could of course have sought an advisory opinion from the
Court on any such matter. It is in this connection that the chief objection
to the theory under discussion arises. Under the Court’s Statute as it
is at present framed, States cannot obtain mere “opinions” from the
Court. This faculty is reserved to certain international organs empowered
to exercise it by way of the process of requesting the Court for an ad-
visory opinion. It was open to the Council of the League to make use of
this process in case of any doubt as to the rights of the League or its

31
34 SOUTH WEST AFRICA (JUDGMENT)

members relative to mandates. But in their individual capacity, States
can appear before the Court only as litigants in a dispute with another
State, even if their object in so doing is only to obtain a declaratory
judgment. The moment they so appear however, it is necessary for
them, even for that limited purpose, to establish, in relation to the de-
fendant party in the case, the existence of a legal right or interest in the
subject-matter of their claim, such as to entitle them to the declarations
or pronouncements they seek: or in other words that they are parties
to whom the defendant State is answerable under the relevant instrument
or rule of law.

*
* *

49. The Court must now turn to certain questions of a wider character.
Throughout this case it has been suggested, directly or indirectly, that
humanitarian considerations are sufficient in themselves to generate
legal rights and obligations, and that the Court can and should proceed
accordingly. The Court does not think so. It is a court of law, and can
take account of moral principles only in so far as these are given a
sufficient expression in legal form. Law exists, it is said, to serve a
social need; but precisely for that reason it can do so only through
and within the limits of its own discipline. Otherwise, it is not a legal
‘service that would be rendered.

50. Humanitarian considerations may constitute the inspirational basis
for rules of law, just as, for instance, the preambular parts of the United
Nations Charter constitute the moral and political basis for the specific
legal provisions thereafter set out. Such considerations do not, however,
in themselves amount to rules of law. All States are interested—have an
interest—in such matters. But the existence of an “interest” does not
of itself entail that this interest is specifically juridical in character.

51. It is in the light of these considerations that the Court must examine
what is perhaps the most important contention of a general character
that has been advanced in connection with this aspect of the case,
namely the contention by which it is sought to derive a legal right or
interest in the conduct of the mandate from the simple existence, or
principle, of the ‘‘sacred trust”. The sacred trust, it is said, is a “‘sacred
trust of civilization’. Hence all civilized nations have an interest in
seeing that it is carried out. An interest, no doubt;—but in order that
this interest may take on a specifically legal character, the sacred trust
itself must be or become something more than a moral or humanitarian
ideal. In order to generate legal rights and obligations, it must be given
juridical expression and be clothed in legal form. One such form might
be the United Nations trusteeship system,—another, as contained in
Chapter XI of the Charter concerning non-self-governing territories,
which makes express reference to “a sacred trust”. In each case the legal
rights and obligations are those, and only those, provided for by the
relevant texts, whatever these may be.

52. In the present case, the principle of the sacred trust has as its sole

32
35 SOUTH WEST AFRICA (JUDGMENT)

juridical expression the mandates system. As such, it constitutes a
moral ideal given form as a juridical régime in the shape of that system.
But it is necessary not to confuse the moral ideal with the legal rules
intended to give it effect. For the purpose of realizing the aims of the
trust in the particular form of any given mandate, its legal rights and
obligations were those, and those alone, which resulted from the rele-
vant instruments creating the system, and the mandate itself, within
the framework of the League of Nations.

53. Thus it is that paragraph 2 of Article 22 of the Covenant, in the
same breath that it postulates the principle of the sacred trust, specifies
in terms that, in order to give “effect to this principle”, the tutelage of
the peoples of the mandated territories should be entrusted to certain
nations, “and that this tutelage should be exercised by them’ as manda-
tories ‘‘on behalf of the League”. It was from this that flowed all the
legal consequences already noticed.

54. To sum up, the principle of the sacred trust has no residual juridical
content which could, so far as any particular mandate is concerned,
operate per se to give rise to legal rights and obligations outside the
system as a whole; and, within the system equally, such rights and obli-
gations exist only in so far as there is actual provision for them. Once
the expression to be given to an idea has been accepted in the form of a
particular régime or system, its legal incidents are those of the régime
or system. It is not permissible to import new ones by a process of
appeal to the originating idea—a process that would, ex hypothesi,
have no natural limit. Hence, although, as has constantly been reiterated,
the members of the League had an interest in seeing that the obligations
entailed by the mandates system were respected, this was an interest
which, according to the very nature of the system itself, they could
exercise only through the appropriate League organs, and not indi-
vidually.

55. Next, it may be suggested that even if the legal position of the
Applicants and of other individual members of the League of Nations
was as the Court holds it to be, this was so only during the lifetime of
the League, and that when the latter was dissolved, the rights previously
resident in the League itself, or in its competent organs, devolved, so
to speak, upon the individual States which were members of it at the
date of its dissolution. There is, however, no principle of law which
would warrant such a conclusion. Although the Court held in the earlier
1962 phase of the present case that the members of a dissolved inter-
national organization can be deemed, though no longer members of
it, to retain rights which, as members, they individually possessed
when the organization was in being, this could not extend to ascribing
to them, upon and by reason of the dissolution, rights which, even
previously as members, they never did individually possess. Nor of

33
36 SOUTH WEST AFRICA (JUDGMENT)

course could anything that occurred subsequent to the dissolution
of the League operate to invest its members with rights they did not,
in that capacity, previously have,—and it is the rights which they had
as members of the League that are now in question.

56. The Court can equally not read the unilateral declarations, or state-
ments of intention as they have been called, which were made by the
various mandatories on the occasion of the dissolution of the League,
expressing their willingness to continue to be guided by the mandates
in their administration of the territories concerned, as conferring on
the members of the League individually any new legal rights or interests
of a kind they did not previously possess.

*

57. Another argument which requires consideration is that in so far as
the Court’s view leads to the conclusion that there is now no entity
entitled to claim the due performance of the Mandate, it must be un-
acceptable. Without attempting in any way to pronounce on the various
implications involved in this argument, the Court thinks the inference
sought to be drawn from it is inadmissible. If, on a correct legal reading
of a given situation, certain alleged rights are found to be non-existent,
the consequences of this must be accepted. The Court cannot properly
postulate the existence of such rights in order to avert those conse-
quences. This would be to engage in an essentially legislative task, in
the service of political ends the promotion of which, however desirable
in itself, lies outside the function of a court-of-law.

*
* *

58. The Court comes now to a more specific category of contention
arising out of the existence and terms of the jurisdictional clause of the
Mandate, and of the effect of the Court’s Judgment of 21 December 1962
in that regard. The Court’s present Judgment is founded on the relevant
provisions of the Covenant of the League of Nations, the character
of the League as an organization, and the substantive provisions of
the instrument of Mandate for South West Africa. The question now
to be considered is whether there is anything arising out of its previous
Judgment, or the terms of the jurisdictional clause of the Mandate,
which should lead the Court to modify the conclusions arrived at on
those foundations.

59. In the first place, it is contended that the question of the Applicants’
legal right or interest was settled by that Judgment and cannot now
be reopened. As regards the issue of preclusion, the Court finds it un-
necessary to pronounce on various issues which have been raised in
this connection, such as whether a decision on a preliminary objection
constitutes a res judicata in the proper sense of that term,—whether
it ranks as a “decision” for the purposes of Article 59 of the Court’s

34
37 SOUTH WEST AFRICA (JUDGMENT)

Statute, or as “final” within the meaning of Article 60. The essential
point is that a decision on a preliminary objection can never be preclusive
of a matter appertaining to the merits, whether or not it has in fact
been dealt with in connection with the preliminary objection. When
preliminary objections are entered by the defendant party in a case,
the proceedings on the merits are, by virtue of Article 62, paragraph 3,
of the Court’s Rules, suspended. Thereafter, and until the proceedings
on the merits are resumed, the preliminary objections having been re-
jected, there can be no decision finally determining or pre-judging any
issue of merits. It may occur that a judgment on a preliminary objection
touches on a point of merits, but this it can do only in a provisional
way, to the extent necessary for deciding the question raised by the pre-
liminary objection. Any finding on the point of merits therefore, ranks
simply as part of the motivation of the decision on the preliminary
objection, and not as the object of that decision. It cannot rank as a
final decision on the point of merits involved.

*#

60. It is however contended that, even if the Judgment of 1962 was,
for the above-mentioned reasons, not preclusive of the issue of the Ap-
plicants’ legal right or interest, it did in essence determine that issue
because it decided that the Applicants were entitled to invoke the juris-
dictional clause of the Mandate, and that if they had a sufficient interest
to do that, they must also have a sufficient interest in the subject-matter
of their claim. This view is not well-founded. The faculty of invoking
a jurisdictional clause depends upon what tests or conditions of the right
to do so are laid down by the clause itself. To hold that the parties in
any given case belong to the category of State specified in the clause,—
that the dispute has the specified character,—and that the forum is the
one specified,—is not the same thing as finding the existence of a legal
right or interest relative to the merits of the claim. The jurisdictional
clause of the Mandate for South West Africa (Article 7, paragraph 2),
which appeared in all the mandates, reads as follows:

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

Looking at this provision; assuming the existence of a dispute; assuming
that negotiations had taken place; that these had not settled the dispute;
and that the Court was, by the operation of Article 37 of its Statute,
duly substituted for the Permanent Court as the competent forum
(all of which assumptions would be in accordance with the Court’s

35
38 SOUTH WEST AFRICA (JUDGMENT)

Judgment of 1962);—then all that the Applicants had to do in order
to bring themselves under this clause and establish their capacity to
invoke it, was to show (a) ratione personae, that they were members
of the League, constructively if not actually, or must be deemed still
so to be for the purposes of this provision, notwithstanding the dissolu-
tion of the League; and (b) ratione materiae, that the dispute did relate
to the interpretation or application of one or more provisions of the
Mandate. If the Court considered that these requirements were satisfied,
it could assume jurisdiction to hear and determine the merits without
going into the question of the Applicants’ legal right or interest relative
to the subject-matter of their claim; for the jurisdictional clause did
not, according to its terms, require them to establish the existence of
such a right or interest for the purpose of founding the competence
of the Court.

61. Hence, whatever observations the Court may have made on that
matter, it remained for the Applicants, on the merits, to establish that they
had this right or interest in the carrying out of the provisions which they
invoked, such as to entitle them to the pronouncements and declarations
they were seeking from the Court. Since decisions of an interlocutory
character cannot pre-judge questions of merits, there can be no contra-
diction between a decision allowing that the Applicants had the capacity
to invoke the jurisdictional clause—this being the only question which,
so far as this point goes, the Court was then called upon to decide, or
could decide,—and a decision that the Applicants have not established
the legal basis of their claim on the merits.

62. It is next contended that this particular jurisdictional clause has an
effect which is more extensive than if it is considered as a simple juris-
dictional clause: that it is a clause conferring a substantive right,—that
the substantive right it confers is precisely the right to claim from the
Mandatory the carrying out of the “‘conduct of the Mandate” provisions
of the instrument of mandate,—and that in consequence, even if the right
is derivable from no other source, it is derivable from and implicit in
this clause.

63. Let it be observed first of all that it would be remarkable if this were
the case,—that is to say if so important a right, having such potentially
far-reaching consequences,—intended, so the Applicants contend, to
play such an essential role in the scheme of the Mandate—of all the
mandates, and of the system generally—had been created indirectly,
and in so casual and almost incidental a fashion, by an ordinary juris-
dictional clause, lacking as will shortly be seen in any of the special
features that might give it the effect claimed,—and which would certainly
be requisite in order to achieve that effect. The Court considers it highly
unlikely that, given the far-reaching consequences involved and, accord-
ing to the Applicants, intended, the framers of the mandates system, had

36
39 SOUTH WEST AFRICA (JUDGMENT)

they had any such intention, would have chosen this particular type of
jurisdictional clause as the method of carrying it out.

64. In truth however, there is nothing about this particular jurisdic-
tional clause to differentiate it from many others, or to make it an excep-
tion to the rule that, in principle, jurisdictional clauses are adjectival not
substantive in their nature and effect. It is of course possible to introduce
into such a clause extra paragraphs or phrases specifically conveying
substantive rights or imposing substantive obligations; but the particular
section of any clause which provides for recourse to an indicated forum,
on the part of a specified category of litigant, in relation to a certain kind
of dispute—or those words in it which provide this—cannot simul-
taneously and per se invest the parties with the substantive rights the
existence of which is exactly what they will have to demonstrate in the
forum concerned, and which it is the whole object of the latter to de-
termine. Jt is a universal and necessary, but yet almost elementary
principle of procedural law that a distinction has to be made between,
on the one hand, the right to activate a court and the right of the court to
examine the merits of the claim,—and, on the other, the plaintiff party’s
legal right in respect of the subject-matter of that which it claims, which
would have to be established to the satisfaction of the Court.

65. In the present case, that subject-matter includes the question
whether the Applicants possess any legal right to require the performance
of the “conduct” provisions of the Mandate. This is something which
cannot be predetermined by the language of a common-form juris-
dictional clause such as Article 7, paragraph 2, of the Mandate for
South West Africa. This provision, with slight differences of wording
and emphasis, is in the same form as that of many other jurisdictional
clauses. The Court can see nothing in it that would take the clause.
outside the normal rule that, in a dispute causing the activation of a
jurisdictional clause, the substantive rights themselves which the dispute
is about, must be sought for elsewhere than in this clause, or in some
element apart from it,—and must therefore be established aliunde vel
aliter. Jurisdictional clauses do not determine whether parties have sub-
stantive rights, but only whether, if they have them, they can vindicate
them by recourse to a tribunal.

66. Such rights may be derived from participation in an international
instrument by a State which has signed and ratified, or has acceded,
or has in some other manner become a party to it; and which in con-
sequence, and subject to any exceptions expressly indicated, is entitled
to enjoy rights under all the provisions of the instrument concerned.
Since the Applicants cannot bring themselves under this head, they
must show that the “conduct” provisions of the mandates conferred
rights in terms on members of the League as individual States, in the
same way that the “special interests” provisions did. It is however
contended that there is a third possibility, and that on the basis of the
jurisdictional clause alone, the Applicants, as members of the League,
were part of the institutional machinery of control relative to the man-

37
40 SOUTH WEST AFRICA (JUDGMENT)

dates, and that in this capacity they had a right of action of the same
kind as, for instance, members of the League Council had under the juris-
dictional clauses of the minorities treaties of that period, for the pro-
tection of minority rights. On this footing the essence of the contention
is that the Applicants do not need to show the existence of any substan-
tive rights outside the jurisdictional clause, and that they had—that
all members of the League had—what was in effect a policing function
under the mandates and by virtue of the jurisdictional clause.

67. The Court has examined this contention, but does not think that
the two cases are in any way comparable. When States intend to create
a right of action of this kind they adopt a different method. Such a right
has, in special circumstances, been conferred on States belonging to
a body of compact size such as the Council of the League of Nations,
invested with special supervisory functions and even a power of inter-
vention in the matter, as provided by the jurisdictional clause of the
minorities treaties—see for instance Article 12 of the minorities treaty
with Poland, signed at Versailles on 28 June 1919, which was typical.
Even so the right, as exercisable by members of the League Council,
in effect as part of the Council’s work, with which they would ex hypothesi
have been fully familiar, was characterized at the time by an eminent
Judge and former President of the Permanent Court as being “in every
respect very particular in character” and as going “‘beyond the province
of general international law’. The intention to confer it must be quite
clear; and the Court holds that for the reasons which have already been
given, and for others to be considered later, there was never any intention
to confer an invigilatory function of this kind on each and every member
of the League.

68. It has to be asked why, if anything of the sort was thought necessary
in the case of the mandates, it was not done in the same way as under the
minorities clauses (which, in general, were drafted contemporaneously
by the same authors)—namely by conferring a right of action on members
of the League Council as such, seeing that it was the Council which had
the supervisory function under the mandates? This would have been
the obvious, and indeed the only workable method of procedure. Alter-
natively, it must be asked why, if it was indeed thought necessary in the
case of mandates to invest all the members of the League with this
function, for the protection of the mandates, it was apparently considered
sufficient in the minorities case to bring in only the members of the
League Council?

69. The Court finds itself unable to reconcile the two types of case ex-
cept upon the assumption, strongly supported by every other factor in-
volved, that, as regards the mandates, the jurisdictional clause was in-
tended to serve a different purpose, namely to give the individual members
of the League the means, which might not otherwise be available to
them through League channels, of protecting their “special interests”
relative to the mandated territories. In the minorities case, the right
of action of the members of the Council under the jurisdictional clause

38.
4] SOUTH WEST AFRICA (JUDGMENT)

was only intended for the protection of minority populations. No other
purpose in conferring a right of action on members of the League
Council would have been possible in that case. This was not so in regard
to the mandates, the provisions of which afforded another and perfectly
natural explanation of the jurisdictional clause and of its purpose;
whereas, if a policing function had been intended, it is obviously to the
members of the Council that it would have been given, and in the same
sort of terms as in the minorities case.

70. In this last connection it is of capital importance that the right as
conferred in the minorities case was subjected to certain characterizations
which were wholly absent in the case of the jurisdictional clause of the
mandates. Any “difference of opinion” was characterized in advance
as being justiciable, because it was to be “held to be a dispute of an
international character” within the meaning of Article 14 of the Covenant
(this was the well-known “deeming” clause), so that no question of any
lack of legal right or interest could arise. The decisions of the Court
were moreover, to be final and, by means of a reference to Article 13
of the Covenant, were given an effect erga omnes as a general judicial
settlement binding on all concerned. The jurisdictional clause of the
mandates on the other hand, was essentially an ordinary jurisdictional
clause, having none of the special characteristics or effects of those of
the minorities treaties.

71. That the League Council had functions in respect of mandates, just
as it did in respect of minorities, can only serve to underline the fact
that in the former case no right of recourse to the Court was conferred
on the members of the Council in their capacity as such, although the
mandates were drafted in full knowledge of what the minorities treaties
contained. The true significance of the minorities case is that it shows
that those who framed the mandates were perfectly capable of doing
what the Applicants claim was done, when they intended to. The
conclusion must be that in the case of the mandates they did not intend to.

+

72. Since the course adopted in the minorities case does not constitute
any parallel to that of the mandates, the Applicants’ contention is seen
to depend in the last analysis almost entirely on what has been called
the broad and unambiguous language of the jurisdictional clause—or in
other words its literal meaning taken in isolation and without reference to
any other consideration. The combination of certain phrases in this clause,
namely the reference to “any dispute whatever’, coupled with the further
words “between the Mandatory and another Member of the League of
Nations” and the phrase “relating ... to the provisions of the Mandate”, is
said to permit of a reference to the Court of a dispute about any provision
of the Mandate, and thus to imply, reflect or bear witness to the existence
of a legal right or interest for every member of the League in the due
execution of every such provision. The Court does not however consider

39
42 SOUTH WEST AFRICA (JUDGMENT)

that the word “whatever” in Article 7, paragraph 2, does anything more
than lend emphasis to a phrase that would have meant exactly the same
without it; or that the phrase “any dispute” (whatever) means anything
intrinsically different from ‘a dispute”; or that the reference to the
“provisions” of the Mandate, in the plural, has any different effect
from what would have resulted from saying “a provision”. Thus reduced
to its basic meaning, it can be seen that the clause is not capable of
carrying the load the Applicants seek to put upon it, and which would
result in giving such clauses an effect that States accepting the Court’s
jurisdiction by reason of them, could never suppose them to have.

73. In this connection the Court thinks it desirable to draw attention to
the fact that a considerable proportion of the acceptances of its com-
pulsory jurisdiction which have been given under paragraph 2 of Article
36 of the Statute of the Court, are couched in language similarly broad
and unambiguous and even wider, covering all disputes between the
accepting State and any other State (and thus “‘any dispute whatever””}—
subject only to the one condition of reciprocity or, in some cases, to
certain additional conditions such as that the dispute must have arisen
after a specified date. It could never be supposed however that on the
basis of this wide language the accepting State, by invoking this clause,
was absolved from establishing a legal right or interest in the subject-
matter of its claim. Otherwise, the conclusion would have to be that
by accepting the compulsory jurisdiction of the Court in the widest terms
possible, States could additionally create a legal right or interest for
themselves in the subject-matter of any claim they chose to bring, and
a corresponding answerability on the part of the other accepting State
concerned. The underlying proposition that by conferring competence
on the Court, a jurisdictional clause can thereby and of itself confer a
substantive right, is one which the Court must decline to entertain.

*
* *

74, The Court must now, though only as a digression, glance at another
aspect of the matter. The present Judgment is based on the view that the
question of what rights, as separate members of the League, the Appli-
cants had in relation to the performance of the Mandate, is a question
appertaining to the merits of their claim. It has however been suggested
that the question is really one of the admissibility of the claim, and
that as such it was disposed of by the Court’s 1962 Judgment.

75. In the “dispositif” of the 1962 Judgment, however, the Court, after
considering the four preliminary objections advanced—which were
objections to the competence of the Court—simply found that it had
“jurisdiction to adjudicate upon the merits”. It thus appears that the
Court in 1962 did not think that any question of the admissibility of

40
43 SOUTH WEST AFRICA (JUDGMENT)

the claim, as distinct from that of its own jurisdiction arose, or that
the Respondent had put forward any plea of inadmissibility as such:
nor had it,—for in arguing that the dispute was not of the kind contem-
plated by the jurisdictional clause of the Mandate, the purpose of the
Respondent was to show that the case was not covered by that clause,
and that it did not in consequence fall within the scope of the competence
conferred on the Court by that provision.

76. if therefore any question of admissibility were involved, it would
fall to be decided now, as occurred in the merits phase of the Nottebohm
case (1.C.J. Reports 1955, p. 4); and all that the Court need say is that
if this were so, it would determine the question in exactly the same way,
and for the same reasons, as in the present Judgment. In other words,
looking at the matter from the point of view of the capacity of the
Applicants to advance their present claim, the Court would hold that
they had not got such capacity, and hence that the claim jwas inad-
missible.

*
* *

77. Resuming the main thread of its reasoning, the Court will now
refer to a supplementary element that furnishes indications in opposition
to the interpretation of the jurisdictional clause advanced by the Appli-
cants. This contra-indication is afforded by the genesis of the juris-
dictional clause appearing in all the instruments of mandate. The
original drafts contained no jurisdictional clause. Such a clause was
first introduced in connection with the “B’ mandates by one of the States
participating in the drafting, and concurrently with proposals made by
that same State for a number of detailed provisions about commercial
and other “special interests” rights (including missionary rights) for
member States of the League. It was little discussed but, so far as it is
possible to judge from what is only a summary record, what discussion
there was centred mainly on the commercial aspects of the mandates and
the possibility of disputes arising in that regard over the interests of
nationals of members of the League. This appears very clearly from the
statements summarized on pages 348, 349 and 350 of Part VI A of the
Recueil des Actes of the Paris Peace Conference, 1919-1920, if these
statements are read as a whole. No corresponding clear connection
emerges between the clause and possible disputes between mandatories
and individual members of the League over the conduct of the mandates
as mandates. That such disputes could arise does not seem to have been
envisaged. In the same way, the original drafts of the ‘C’ mandates
which, in a different form, contained broadly all that now appears in
the first four articles of the Mandate for South West Africa, had no
jurisdictional clause and no “‘missionary clause” either. The one appeared
when the other did.

78. The inference to be drawn from this drafting history is confirmed
by the very fact that the question of a right of recourse to the Court arose

41
44 SOUTH WEST AFRICA (JUDGMENT)

only at the stage of the drafting of the instruments of mandate, and that
as already mentioned, no such right figured among the “securities”
for the performance of the sacred trust embodied in the League Covenant.

79. After going through various stages, the jurisdictional clause finally
appeared in the same form in all the mandates, except that in the case
of the Mandate for Tanganyika (as it then was) a drafting caprice
caused the retention of an additional paragraph which did not appear,
or had been dropped in all the other cases. Once the principle of a juris-
dictional clause had been accepted, the clause was then introduced as
a matter of course into all the mandates. This furnishes the answer
to the contention that, in the case of the ‘C’ mandates, it must have been
intended to relate to something more than the single “missionary clause”
(Article 5 in the Mandate for South West Africa). Also, it must not
be forgotten that it was simultaneously with the missionary clause
that the jurisdictional clause was introduced; and that at the time much
importance was attached to missionary rights. In any event, whatever
the purpose of the jurisdictional clause, it was the same for all the
mandates, and for the three categories of mandate. It is in the light
of the mandates system generally that this purpose must be assessed,
—and, so considered, the purpose is clear.

*
* *

80. The Court will now consider a final contention which has been ad-
vanced in support of the Applicants’ claim of right, namely the so-called
“necessity” argument.

81. In order to do this, and at the risk of some unavoidable repetition, it
is necessary to review a little more closely the functioning of the mandates
system. This system, within the larger setting of the League, was an
entirely logical one. The various mandatories did not deal with the indi-
vidual members of the League over the “‘conduct” provisions of their
mandates, but with the appropriate League organs. If any difficulty
should arise over the interpretation of any mandate, or the character
of the mandatory’s obligations, which could not be cleared up by dis-
cussion or reference to an ad hoc committee of jurists—a frequent
practice in the League—the Council could in the last resort request the
Permanent Court for an advisory opinion. Such an opinion would not
of course be binding on the mandatory—it was not intended that it
should be—but it would assist the work of the Council.

82. In the Council, which the mandatory was entitled to attend as a
member for the purposes of any mandate entrusted io it, if not otherwise
a member—(Article 4, paragraph 5, of the Covenant), the vote of the
mandatory, if present at the meeting, was necessary for any actual
“decision” of the Council, since unanimity of those attending was the
basic voting rule on matters of substance in the main League organs—
(Article 5, paragraph 1, of the Covenant). Thus there could never be
any formal clash between the mandatory and the Council as such.
In practice, the unanimity rule was frequently not insisted upon, or its

42
45 SOUTH WEST AFRICA (JUDGMENT)

impact was mitigated by a process of give-and-take, and by various
procedural devices to which both the Council and the mandatories lent
themselves. So far as the Court’s information goes, there never occurred
any case in which a mandatory “vetoed”? what would otherwise have
been a Council decision. Equally, however, much trouble was taken
to avoid situations in which the mandatory would have been forced
to acquiesce in the views of the rest of the Council short of casting an
adverse vote. The occasional deliberate absence of the mandatory
from a meeting, enabled decisions to be taken that the mandatory might
have felt obliged to vote against if it had been present. This was part
of the above-mentioned process for arriving at generally acceptable
conclusions.

83. Such were the methods, broadly speaking, adopted in the relations
between the various mandatories and the League over the conduct of the
mandates, and it can be seen how out of place in the context would
have been the existence of substantive rights for individual members
of the League in the conduct of the mandates (particularly if backed up
by a right of recourse to the Court) exercisable independently of the
Council at the will of the member State. On the other hand—and here
again the concept was entirely logical—by the combined effect of the
“special interests” provisions and the jurisdictional clause—(the latter
alone could not have sufficed)—a right of recourse was given to the
individual League members in respect of such interests, since the League
Council could not be expected to act in defence of a purely national,
not “League”, interest.

84. Under this system, viewed as a whole, the possibility of any serious
complication was remote; nor did any arise. That possibility would have
been introduced only if the individual members of the League had
been held to have the rights the Applicants now contend for. In actual
fact, in the 27 years of the League, all questions were, by one means or
another, resolved in the Council; no request was made to the Court for
an advisory opinion; so far as is known, no member of the League
attempted to settle direct with the mandatory any question that did not
affect its own interests as a State or those of its nationals, and no cases
were referred to the Permanent Court under the adjudication clause
except the various phases of one single case (that of the Mavrommatis
Concessions) coming under the head of “‘special interests”. These facts
may not be conclusive in themselves; but they have a significance which
the Court cannot overlook, as suggesting that any divergences of view
concerning the conduct of a mandate were regarded as being matters
that had their place in the political field, the settlement of which lay
between the mandatory and the competent organs of the League,—not
between the mandatory and individual members of the League.

43
46 SOUTH WEST AFRICA (JUDGMENT)

85. Such then is the background against which the “necessity” argu-
ment has to be viewed. The gist of the argument is that since the Council
had no means of imposing its views on the mandatory, and since no
advisory opinion it might obtain from the Court would be binding on
the latter, the mandate could have been flouted at will. Hence, so the
contention goes, it was essential, as an ultimate safeguard or security
for the performance of the sacred trust, that each member of the League
should be deemed to have a legal right or interest in that matter and, in
the last resort, be able to take direct action relative to it.

86. It is evident on the face of it how misconceived such an argument
must be in the context of a system which was expressly designed to
include all those elements which, according to the “‘necessity” argument,
it was essential to guard or provide securities against. The Court will
leave on one side the obvious improbability that had the framers of the
mandates system really intended that it should be possible in the last
resort to impose a given course or policy on a mandatory, in the perfor-
mance of the sacred trust, they would have left this to the haphazard
and uncertain action of the individual members of the League, when
other much more immediate and effective methods were to hand—
for instance, by providing that mandatories should not be members
of the Council for mandates purposes, though entitled to attend, or
should not be entitled to exercise a vote on mandates questions; or
again by investing members of the Council itself with a right of action
before the Court, as in the minorities case. The plain fact is that, in
relation to the “conduct” provisions of the mandates, it was never the
intention that the Council should be able to impose its views on the
various mandatories—the system adopted was one which deliberately
rendered this impossible. It was never intended that the views of the
Court should be ascertained in a manner binding on mandatories, or
that mandatories should be answerable to individual League members
as such in respect of the ‘“‘conduct” provisions of the mandates. It is
scarcely likely that a system which, of set purpose, created a position
such that, if a mandatory made use of its veto, it would thereby block
what would otherwise be a decision of the Council, should simultaneously
invest individual members of the League with, in effect, a legal right of
complaint if this veto, to which the mandatory was entitled, was made
use of. In this situation there was nothing at all unusual. In the inter-
national field, the existence of obligations that cannot in the last resort
be enforced by any legal process, has always been the rule rather than
the exception,—and this was even more the case in 1920 than today.

87. As regards the possibility that a mandatory might be acting con-
trary not only to the views of the rest of the Council but to the mandate
itself, the risk of this was evidently taken with open eyes; and that the risk
was remote, the event proved. Acceptance of the Applicants’ contention
on the other hand, would involve acceptance of the proposition that
even if the Council of the League should be perfectly satisfied with the
way in which a mandatory was carrying out its mandate, any individual

44
47 SOUTH WEST AFRICA (JUDGMENT)

member of the League could independently invoke the jurisdiction of
the Court in order to have the same conduct declared illegal, although,
as mentioned earlier, no provision for recourse to the Court was included
amongst the “securities” provided for by the Covenant itself. Here
again the difference is evident between this case and that of the minorities,
where it was the members of the Council itself who had that right.
The potential existence of such a situation as would have arisen from
investing all the members of the League with the right in question is
not reconcilable with the processes described above for the supervision
of the mandates. According to the methods and procedures of the League
as applied to the operation of the mandates system, it was by argument,
discussion, negotiation and co-operative effort that matters were to be,
and were, carried forward.

88. For these reasons the Court, bearing in mind that the rights of the
Applicants must be determined by reference to the character of the
system said to give rise to them, considers that the “necessity” argument
falls to the ground for lack of verisimilitude in the context of the economy
and philosophy of that system. Looked at in another way moreover,
the argument amounts to a plea that the Court should allow the equiva-
lent of an “actio popularis”, or right resident in any member of a com-
munity to take legal action in vindication of a public interest. But
although a right of this kind may be known to certain municipal systems
of law, it is not known to international law as it stands at present:
nor is the Court able to regard it as imported by the “general principles
of law” referred to in Article 38, paragraph 1 (c), of its Statute.

*
* *

89..The Court feels obliged in conclusion to point out that the whole
“necessity” argument appears, in the final analysis, to be based on
considerations of an extra-legal character, the product of a process of
after-knowledge. Such a theory was never officially advanced during
the period of the League, and probably never would have been but for
the dissolution of that organization and the fact that it was then con-
sidered preferable to rely on the anticipation that mandated territories
would be brought within the United Nations trusteeship system. It is
these subsequent events alone, not anything inherent in the mandates
system as it was originally conceived, and is correctly to be interpreted,
that give rise to the alleged “‘necessity”. But that necessity, if it exists,
lies in the political field. It does not constitute necessity in the eyes of
the law. If the Court, in order to parry the consequences of these events,
were now to read into the mandates system, by way of, so to speak,
remedial action, an element wholly foreign to its real character and
structure as originally contemplated when the system was instituted, it

45
48 SOUTH WEST AFRICA (JUDGMENT)

would be engaging in an ex post facto process, exceeding its functions
as a court of law. As is implied by the opening phrase of Article 38,
paragraph 1, of its Statute, the Court is not a legislative body. Its duty
is to apply the law as it finds it, not to make it.

90. It is always open to parties to a dispute, if they wish the Court to
give a decision on a basis of ex aequo et bono, and are so agreed, to invoke
the power which, in those circumstances, paragraph 2 of this same
Article 38 confers on the Court to give a decision on that basis, not-
withstanding the provisions of paragraph 1. Failing that, the duty of the
Court is plain.

91. It may be urged that the Court is entitled to engage in a process
of “filling in the gaps”, in the application of a teleological principle of
interpretation, according to which instruments must be given their
maximum effect in order to ensure the achievement of their underlying
purposes. The Court need not here enquire into the scope of a principle
the exact bearing of which is highly controversial, for it is clear that it
can have no application in circumstances in which the Court would
have to go beyond what can reasonably be regarded as being a process
of interpretation, and would have to engage in a process of rectification
or revision. Rights cannot be presumed to exist merely because it might
seem desirable that they should. On a previous occasion, which had
certain affinities with the present one, the Court declined to find that
an intended three-member commission could properly be constituted
with two members only, despite the (as the Court had held) illegal refusal
of one of the parties to the jurisdictional clause to appoint its arbitrator
—and although the whole purpose of the jurisdictional clause was
thereby frustrated. In so doing, the Court (1.C.J. Reports 1950, p. 229)
said that it was its duty “to interpret the Treaties, not to revise them”.
It continued:

“The principle of interpretation expressed in the maxim: Ut res
magis valeat quam pereat, often referred to as the rule of effectiveness,
cannot justify the Court in attributing to the provisions for the
settlement of disputes in the Peace Treaties a meaning which, as
stated above, would be contrary to their letter and spirit.”

In other words, the Court cannot remedy a deficiency if, in order to do
so, it has to exceed the bounds of normal judicial action.

oe

92. It may also be urged that the Court would be entitled to make good
an omission resulting from the failure of those concerned to foresee
what might happen, and to have regard to what it may be presumed
the framers of the Mandate would have wished, or would even have
made express provision for, had they had advance knowledge of what
was to occur. The Court cannot however presume what the wishes and
intentions of those concerned would have been in anticipation of events

46
49 SOUTH WEST AFRICA (JUDGMENT)

that were neither foreseen nor foreseeable; and even if it could, it would
certainly not be possible to make the assumptions in effect contended
for by the Applicants as to what those intentions were.

93. In this last connection, it so happens that there is in fact one test
that can be applied, namely by enquiring what the States who were
members of the League when the mandates system was instituted did
when, as Members of the United Nations, they joined in setting up
the trusteeship system that was to replace the mandates system. In
effect, as regards structure, they did exactly the same as had been done
before, with only one though significant difference. There were of
course marked divergences, as regards for instance composition, powers,
and voting rules, between the organs of the United Nations and those of
the League. Subject to that however, the Trusteeship Council was to
play the same sort of role as the Permanent Mandates Commission had
done, and the General Assembly (or Security Council in the case of
strategic trusteeships) was to play the role of the League Council; and
it was to these bodies that the various administering authorities became
answerable. No right of supervision or of calling the administering
authority to account was given to individual Members of the United
Nations, whose sphere of action, as in the case of the League members,
is to be found in their participation in the work of the competent organs.

94. The significant difference referred to lies in the distribution of the
jurisdictional clause amongst the various trusteeship agreements. The
clause itself is almost identical in its terms with that which figured in
the mandates, and was clearly taken straight from these (“any dispute
whatever’, ““between the Administering Authority and another Member
of the United Nations”, “relating to ... the provisions of this Agree-
ment’’). But whereas the jurisdictional clause appeared in all the man-
dates, each of which contained “special interests” provisions, it figures
only in those trusteeship agreements which contain provisions of this
type, and not in agreements whose provisions are confined entirely to
the performance of the trust in accordance with the basic objectives of
the system as set out in Article 76 of the Charter.

95. If therefore, the contention put forward by the Applicants in the
present case were correct in principle (and this contention is in a major
degree founded on the existence and wording of the jurisdictional clause,
and also involves the erroneous assumption that it can per se confer
substantive rights), it would follow that, in the case of some of the
trusteeships, individual members of the United Nations would be held
to have a legal right or interest in the conduct and administration of
the trust, but in relation to others they would not, although these were
no less trusteeships,—no less an expression of the “sacred trust of
civilization”. The implications become even more striking when it is
realized that the trusteeships to which no jurisdictional clause attaches
are three previous Pacific ‘C’ mandates—that is to say the class of

47
50 SOUTH WEST AFRICA (JUDGMENT)

territory inhabited by precisely the most undeveloped categories of
peoples, the least “able to stand by themselves”’.

96. It has been sought to explain this apparent anomaly by reference to
the strong negotiating position in which the various mandatories found
themselves, inasmuch as they were not legally obliged to place their
mandated territories under trusteeship at all, and could therefore,
within limits, make their own terms. But this would in no way explain
why they seem to have been willing to accept a jurisdictional clause in
the case of trusteeships that contained ‘special interests” provisions,
including one Pacific ‘C’ mandate of this kind, but were not willing
to do so in the case of trusteeships whose terms provided only for the
performance of the trust in accordance with the basic objectives of the
system.

97. No doubt, as has been pointed out, even where no jurisdictional
clause figures in a trusteeship agreement, it would be possible, in those
cases where the administering authority had made an appropriately
worded declaration in acceptance of the Court’s compulsory jurisdiction
under the optional clause provision of Article 36 of the Court’s Statute,
for another member of the United Nations having made a similar and
interlocking declaration, to seise the Court of a dispute regarding
the performance of the trust. The number of cases in which this could
occur has, however, always been very limited, and the process is rendered
precarious and uncertain, not only by the conditions contained in, and
the nature of the disputes covered by certain of these declarations,
but also by their liability to amendment, withdrawal, or non-renewal.
The optional clause system could therefore in no way have afforded a
substitute for a general obligation to adjudicate, if such an obligation
had really been regarded as essential;—moreover, even in those cases
where an optional clause declaration could be invoked, it would still be
necessary for the invoking State—as here—to establish the existence of a
legal right or interest in the subject-matter of its claim.

98. It has also been sought to explain why certain trusteeship agree-
ments do not contain the jurisdictional clause by a further appeal to the
“necessity” argument. This clause was no longer necessary, so it was
contended, because the United Nations voting rule was different. In the
League Council, decisions could not be arrived at without the concur-
rence of the mandatory, whereas in the United Nations the majority
voting rule ensured that a resolution could not be blocked by any single
vote. This contention would not in any event explain why the clause
was accepted for some trusteeships and not for others. But the whole
argument is misconceived. If decisions of the League Council could not
be arrived at without the concurrence, express or tacit, of the mandatory,
they were, when arrived at, binding: and if resolutions of the United
Nations General Assembly (which on this hypothesis would be the
relevant organ) can be arrived at without the concurrence of the ad-
ministering authority, yet when so arrived at—and subject to certain
exceptions not here material—they are not binding, but only recom-
mendatory in character. The persuasive force of Assembly resolutions

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can indeed be very considerable,—but this is a different thing. It operates
on the political not the legal level: it does not make these resolutions
binding in law. If the “necessity” argument were valid therefore, it
would be applicable as much to trusteeships as it is said to be to man-
dates, because in neither case could the administering authority be
coerced by means of the ordinary procedures of the organization.
The conclusion to be drawn is obvious.

*
* *

99. In the light of these various considerations, the Court finds that the
Applicants cannot be considered to have established any legal right or
interest appertaining to them in the subject-matter of the present claims,
and that, accordingly, the Court must decline to give effect to them.

100. For these reasons,

THE Court,
by the President’s casting vote—the votes being equally divided,

decides to reject the claims of the Empire of Ethiopia and the Republic
of Liberia.

Done in English and in French, the English text being authoritative,
at the Peace Palace, The Hague, this eighteenth day of July, one thousand
nine hundred and sixty-six, in four copies, one of which will be placed
in the archives of the Court and the others transmitted to the Government
of the Empire of Ethiopia, the Government of the Republic of Liberia
and the Government of the Republic of South Africa, respectively.

(Signed) Percy C. SPENDER,
President.

(Signed) S&S. AQUARONE,
Registrar.

President Sir Percy SPENDER makes the following declaration:

1. The judgment of the Court, which consists of its decision and the
reasons upon which it is based (Article 56 (1) of the Statute), is that the
Applicants cannot be considered to have established that they have
any legal right or interest in the subject-matter of the present claims,
and that accordingly their claims are rejected.

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2. Having so decided, the Court’s task was completed. It was not
necessary for it to determine whether the Applicants’ claims should or
could be rejected on any other grounds. Specifically it was not called
upon to consider or pronounce upon the complex of issues and questions
involved in Article 2 of the mandate instrument (“The Mandatory
shall promote to the utmost the material and moral well-being and the
social progress of the inhabitants of the territory subject to the present
Mandate”); or Article 6 thereof (“The Mandatory shall make to the
Council of the League of Nations an annual report to the satisfaction
of the Council, containing full information with regard to the territory,
and indicating the measures taken to carry out the obligations assumed.
under Articles 2, 3, 4 and 5”); or to enter into a legal enquiry as to
what it would or might have decided in respect to these and related
matters had it not reached the decision it did. To have done so would,
in my view, have been an excess of the judicial function.

3. The Judgment of the Court does not represent the unanimous
opinion of the judges and, in consequence, Article 57 of the Statute of
the Court, which provides that in that case ‘‘any judge shall be entitled
to deliver a separate opinion”, comes into operation.

4. It follows that any judge, whether he concurs in or dissents from
the Court’s judgment, is entitled, if he wishes, to deliver a separate
opinion.

5. Since in my view there are grounds other than as stated in the
Judgment upon which the Applicants’ claims or certain of them could
have been rejected, and since I agree with the Court’s Judgment, there
arises for me the question whether, and if so to what extent, it is per-
missible or appropriate to express by way of separate opinion my
views on these additional grounds for rejecting the Applicants’ claims
or certain of them.

6. In order to answer this question, it is necessary to consider not
merely the text of Article 57 but the general purpose it was intended
to serve, and its intended application.

7. I would not wish to say anything which would unreasonably
restrict the right accorded to a judge by Article 57. It is an important
right which must be safeguarded. Can it be, however, that there are
no limits to the scope and extent of the exercise of this right by any
individual judge? I cannot think so. There must, it seems to me, be
some limits, to proceed beyond which could not be claimed to be a
proper exercise of the right the Statute confers.

8. The right of a judge to express a dissenting opinion in whole or in
part was not easily won.

9. In the Hague Convention of 1899 a right of dissent from arbitral
decisions was recognized; it was adopted without discussion. At the
Hague Conference of 1907 the question of dissent or no dissent was
discussed at considerable length. In the result the right of dissent was
suppressed.

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10. The Committee of Jurists, in drafting the Statute of the Permanent
Court in 1920, after discussion, reached the conclusion that a judge
should be allowed to publish his dissent, but not his reasons. This
however failed to receive the approval of the Council of the League
at its tenth meeting in Brussels in October of that year. There was
then introduced into the text the right of a judge who did not concur
in all or part of the judgment to deliver a separate opinion.

11. The record reveals clearly that this recognition of the right of
a judge not only to publish his dissent but, as well, to express the reasons
for the same, was the result of compromise (League of Nations Documents
on Article 14 of the Covenant, pp. 138 et seq.). It was stated by Sir Cecil
Hurst, who was at Brussels, and who defended, before the Sub-Committee
of the Assembly, the view arrived at at the Brussels meeting of the
Council, that the reason for disagreeing with the Committee of Jurists
was because it was feared in England that the decisions of the Court
might establish rules of law which would be incompatible with the
Anglo-Saxon legal system. The agreement reached in the Council of
the League in Brussels, it seems clear, aimed at avoiding this apprehended
danger by the publication of dissenting opinions.

12. This would strongly suggest that the contemplated purpose of
the publication of the dissent, certainly its main purpose, was to enable
the view of the dissenting judge or judges on particular questions of
law dealt with in the Court’s judgment to be seen side by side with
the views of the Court on these questions.

13. In the result there was, without dissent, written into the Statute
of the Permanent Court Article 57 thereof, which read:

“If the judgment does not represent in whole or in part the
unanimous opinion of the judges, dissenting judges are entitled
to deliver a separate opinion.”

14. There is the considerable authority of President of the Permanent
Court Max Huber for the view that the contemplated purpose of the
right to publish reasons for a dissent was as stated in paragraph 12
above. In the course of a long discussion in that Court in July of 1926
on the general principle of dissenting opinions (Series D, Addendum
No. 2, p. 215) he is recorded as having observed (my italics):

‘Personally the President had always construed the right con-
ferred on judges by Article 57 as a right to state their reasons and
not simply to express their dissent, the object being to enable judges
to explain their understanding of international law in order to
prevent the creation of a false impression that a particular judgment
or opinion expressed the unanimous opinion of the Court, in regard
to the interpretation of international law on a particular point.”

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15. Further support for Max Huber’s view is, I think, to be found
in a resolution of the Permanent Court of 17 February 1928 which, in
part, read as follows (my italics): “Dissenting opinions are designed
solely to set forth the reasons for which judges do not feel able to accept the
opinion of the Court...”

16. It would appear evident from the record that it would have
been quite foreign to the understanding of those who drafted the
provision according the right of a judge to publish the reasons for his
dissent, that this right could be one which permitted a judge to express
his opinion at large, on matters not directly connected with the nature
and subject-matter of the Court’s decision.

17. This then was the origin of Article 57 of this Court’s Statute,
which was evidently based by its framers not only on the text of the
corresponding article in the Statute of the Permanent Court, but, as
well, upon the commonly understood purpose a dissenting opinion was
designed to serve.

18. Article 57 of this Court’s Statute extends the right to deliver
a separate opinion to any judge, where the judgment does not represent
in whole or in part the unanimous opinion of the judges.

19. If a dissenting judge is free to state his opinion on matters which
are not directly connected with the Court’s judgment, so it would
appear is a concurring judge who, for any reason which recommends
itself to him, desires to deliver a separate opinion.

20. In other words, if any judge is entitled to give a separate opinion
quite outside the range of the Court’s decision and on issues upon
which the Court has made no findings of any kind, every other judge
is so entitled. The inevitable confusion which this could lead to cannot,
in my view, be supported by any rational interpretation and application
of Article 57. It would, or could, in practice be destructive of the authority
of the Court.

21. President Basdevant, a former distinguished President of this
Court, in his Dictionary of the Terminology of International Law (p. 428)
defines an individual concurring opinion as not a mere statement of
disagreement as to the reasons given for a decision, the dispositif of
which the judge accepts, but the formal explanation he gives of the
grounds on which he personally does so; whilst a dissenting opinion
denotes not a mere statement of dissent relative to a decision but the
formal explanation given of the grounds on which the judge bases his
dissent.

22. In the light of all these considerations the following conclusions
appear justified:

(a) individual opinions, whether dissenting or merely separate, were,
when the Court’s Statute was drafted, regarded as such as were
directly connected with and dependent upon the judgment of the

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Court itself (or in the case of advisory opinions (Statute, Article 68,
Rules, Article 84 (2)), its opinion), in the sense of either agreeing
or disagreeing with it, or its motivation, or as to the sufficiency of
the latter;

(b) the judgment (or opinion) of the Court must be the focal point of the
different judicial views expressed on any occasion, since it is the exis-
tence and nature of the judgment (or opinion) and their relation-
ship to it that gives individual opinions their judicial character;

(c) in principle such opinions should not purport to deal with matters
that fall entirely outside the range of the Court’s decision, or of
the decision’s motivation;

(d) there must exist a close direct link between individual opinions
and the judgment of the Court.

23. If these conclusions are, as I think them to be, sound, there
still remain wide limits within which an individual judge may quite
properly go into questions that the Court has not dealt with, provided
he keeps within the ambit of the order of question decided by the Court,
and in particular observes the distinction between questions of a pre-
liminary or antecedent character and questions not having that character.
I cannot however agree that a separate or dissenting opinion may
properly include all that a judge thinks the judgment of the Court
should have included.

24. The mere fact that a judgment (or opinion) of the Court has been
given does not afford justification for an expression of views at large
on matters which entirely exceed the limits and intended scope of the
judgment (or opinion). Without the judgment (or opinion) there would,
of course, be no relationship and nothing of a judicial character that
could be said by any judge. There is equally no relationship imparting
judicial character to utterances about questions which the Court has not
treated of at all.

25. Suppose that the Court, on a request to give an advisory opinion,
refuses to do so, as for example it did in the case of Eastern Carelia,
1923, Series B, No.5, on a specific ground stated; could a judge of the
Court, by way of a separate individual or dissenting opinion, proceed
to give his views as to what the opinion of the Court should have been
if it had decided to express it? I should have thought not.

26. Is there in principle any real distinction between this supposed
case and the present cases? I think not. The Court has decided, on
what is a preliminary question of the merits, that the Applicants’ claims
must be rejected: thus further examination of the merits becomes
supererogatory. Is any judge in a separate opinion, in disregard of the
particular issue or question decided by the Court and the reasoning
in support of the decision, entitled to go beyond giving his reasons for
disagreeing with that decision, and passing entirely outside it to express
his views on what the Court should have decided in relation to other
matters of the merits, on which no decision has been arrived at and no

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expression of opinion has been given by the Court? To do so, in my
view, would be to go outside the proper limits of an individual or
separate opinion.

27. It cannot be that the mere dispositif itself can enlarge the proper
scope of a separate opinion. The dispositif cannot be disembowelled
from the Court’s opinion as expressed in its motivations. It surely
cannot be that just because the dispositif rejects the claims, it is permis-
sible for a dissenting judge to give his reasons why the claims should
be upheld in whole or part. The content of the judgment must be ob-
tained from reading together the decision and the reasons upon which
it is based. The claims are dismissed for particular assigned reasons
and on a specific ground. It is to these reasons and this ground, it seems
to me, that in principle all separate opinions must be directed, not to
wholly unconnected issues or matters.

28. It would seem inconceivable that a judge who concurs in the
dispositif should in a separate opinion be free to go beyond considerations
germane to the actual decision made by the Court and its motivations.
In the present cases he would, of course, be free to advance another
ground of the same order as that on which the Court’s decision rests
which would separately justify it, or other related reasons which might
go to support it. But it would hardly be justifiable for such a judge to
proceed further into the merits, expressing his views on how he thinks
the Court should or would have pronounced upon the whole complex
of questions centering around different provisions of the Mandate, for
example Articles 2 and 6 thereof, had the Court not reached the decision
it actually did.

29. There is however no warrant to be found in Article 57 of the
Court’s Statute which would leave it free for a dissenting judge to do
this but not a concurring judge. They both stand upon an equal footing.
The dispositif and a judge’s vote thereon, for or against, could not,
in itself, affect the proper limits within which any separate opinion
under Article 57 may be delivered.

30. In the present cases the questions of merits that arise can them-
selves be divided into two categories, namely questions of what might
be called the ultimate merits and certain other questions which, thougt
appertaining to the merits, have an antecedent or more fundamentai
character, in the sense that if decided in a certain way they render a
decision on the ultimate merits unnecessary and indeed unwarranted.
As the Judgment states, there are two questions having that character—
that of the Applicants’ legal right and interest (which is the basis of
the Court’s decision) and that of the continued subsistence of the
Mandate for South West Africa.

31. It would be entirely proper for a judge who votes in favour of
the dispositif to base a separate opinion wholly or in part upon the
second of those two questions. He would not be going outside the

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order of question considered by the Court, namely that of antecedent
issues On merits operating as a bar to all the Applicants’ claims, he
would not have attempted to pronounce on the question of ultimate
merits, necessarily excluded and rendered irrelevant by the Court’s
Judgment.

32. To the extent that any separate opinion, whether concurring o1
dissenting, goes outside the order of the question considered by the
Court, it is my view that the opinion ceases to have any relationshif
with the judgment of the Court, whatever the means may be by which
such a relationship or link is sought to be established—it ceases therefore
to be an expression properly in the nature of a judicial expression of
opinion, for, as has been already indicated, it is only through their
relationship to the judgment that a judicial character is imparted to
individual opinions. |

33. In my view, such an opinion, to the extent it exceeds these limits,
ceases to be a separate opinion as contemplated by the Court’s Statute
and Rules since it expresses views about matters for which the judgment
of the Court does not provide the basis necessary for the process of
agreement or disagreement which is the sole legitimate raison d’être
of a separate opinion.

34. I am not persuaded that the views I have expressed are in any
sense invalidated if it be that on one or two occasions this or that judge
has, in some manner, not acted in conformity therewith. Action which
is impermissible does not become permissible because it may have been
overlooked at the time or no objection taken. The correct path to follow
remains the correct path even though there may have been occasional
straying from it.

35. These views must dictate my own action. However I might agree
or disagree with the views expressed by any individual judge in a
separate opinion in relation to the complex of questions both of law
and fact centering around Articles 2 and 6 of the Mandate and certain
other articles thereof, I would not, in my considered view, be entitled to
express any opinion thereon. Were I to do so I would be expressing
purely personal and extra-judicial views contrary to what I think is the
object and purpose of Article 57 of the Statute, and contrary, in my view,
to the best interests of the Court.

36. And what it is not permissible or proper to do in a separate
opinion, it is certain would be impermissible and improper to do in a
declaration.

37. I associate myself unreservedly with the Court’s Judgment, and,
having regard to the views herein expressed, have nothing to add thereto.

Judge MorELLi and Judge ad hoc VAN WYK append Separate Opinions.
to the Judgment of the Court.

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Vice-President WELLINGTON Koo, Judges KORETSKY, TANAKA, JESSUP,
PADILLA NERVO, FORSTER and Judge ad hoc Sir Louis MBANEFO append.
Dissenting Opinions to the Judgment of the Court.

(Initialled) P.C.S.
(Initialled) S.A.

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