INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

SOUTH WEST AFRICA CASES

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

JUDGMENT OF 21 DECEMBER 1962

1962

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)

EXCEPTIONS PRELIMINAIRES

_ ARRÊT DU 21 DÉCEMBRE 1962
This Judgment should be cited as follows:

“South West Africa Cases (Ethiopia v. South Africa ;
Liberia v. South Africa), Preliminary Objections,
Judgment of 21 December 1962: I.C.]. Reports 1962, p. 319.”

Le présent arrét doit étre cité comme suit:
« Affaires du Sud-Ouest africain (Ethiopie c. Afrique du Sud ;
Libéria c. Afrique du Sud), Exceptions préliminaires,
Avvét du 21 décembre 1962: C. I. J. Recueil 1962, p. 319.»

Sales number 97 0
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319

INTERNATIONAL COURT OF JUSTICE

1962
21 December
General List: YEAR 1962

Nos. 46 & 47
21 December 1962

SOUTH WEST AFRICA CASES

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

PRELIMINARY OBJECTIONS

Preliminary question of existence of a dispute between the Parties.—
Origin, nature and characteristics of Mandates System.—Mandate for
South West Africa as an instrument of an international character —
Question of registration of Mandate: Article 18 of Covenant.—Article 7
of Mandate as treaty or convention within meaning of Article 37 of
Statute.— Dissolution of League of Nations and survival of Mandate.—
Essentiality of Article 7 of Mandate.—Capacity to invoke that Article.
—Scope of Article 7 and interest of Member States in performance of
Mandate.—Rule of prior diplomatic negotiation and its applicability.
—Court’s finding of jurisdiction.

JUDGMENT

Present: President \WINIARSK1; Vice-President ALFARO; Judges
BASDEVANT, BADAWI, MORENO QUINTANA, WELLINGTON
Koo, Sprropoutos, Sir Percy SPENDER, Sir Gerald Fitz-
MAURICE, KORETSKY, BUSTAMANTE Y RIVERO, JESSUP,
MorELL!; Judges ad hoc Sir Louis MBANEFO, VAN WYK;
Registrar GARNIER-COIGNET.
320 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)
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
Mr. Edward R. Moore, Assistant Attorney-General of Liberia,

Mr. Leonard S. Sandweiss, Member of the New York Bar,
as Counsel;

the Republic of Liberia,
represented by
Hon. Joseph J. F. Chesson, Attorney-General of Liberia,
Hon. Ernest A. Gross, Member of the New York Bar,
as Agents,
assisted by
Mr. Edward R. Moore, Assistant Attorney-General of Liberia,

Mr. Leonard S. Sandweiss, Member of the New York Bar,
as Counsel,

and

the Republic of South Africa,
represented by

Dr. J. P. verLoren van Themaat, S.C., Law Adviser to the
Department of Foreign Affairs,

as Agent,

and by

Mr. Ross McGregor, Deputy State Attorney,

as Additional Agent,

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,
as Counsel,

Mr. J. S. F. Botha, Department of Foreign Affairs,

as Adviser, |

and

Mr. F. D. Tothill, Department of Foreign Affairs,
as Secretary,
321 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

THE COURT,
composed as above,

delivers the following Judgment :

On 4 November 1960 the Registrar received two Applications,
each instituting proceedings against the Government of the Union
of South Africa relating to “the continued existence of the Mandate
for South West Africa and the duties and performance of the
Union, as Mandatory, thereunder.’’ One of these Applications was
submitted on behalf of the Government of Ethiopia; it was transmit-
ted by a letter from the Agents who had been appointed in the case
by that Government, as appears from a communication by the
Deputy Prime Minister and Minister for Foreign Affairs of Ethiopia,
the letter and communication being dated 28 October 1960. The
other Application was submitted on behalf of the Government of
Liberia; it was transmitted by a letter from the Agents who had been
appointed in the case by that Government, as appears from a
communication from the Ambassador of Liberia in the Netherlands,
the letter and communication being dated 4 November 1960.

To found the jurisdiction of the Court in the proceedings thus
instituted, the Applications, having regard to Article 80, paragraph
I, of the Charter of the United Nations, rely on Article 7 of the
Mandate of 17 December 1920 for German South West Africa and
Article 37 of the Statute of the Court.

dn accordance with Article 40, paragraph 2, of the Statute, the
Applications were communicated to the Government of the Union of
South Africa. In accordance with paragraph 3 of the same Article,
the other Members of the United Nations and the non-Member
States entitled to appear before the Court were notified.

Time-limits for the filing of the Memorial of Ethiopia and the
Memorial of Liberia, and for the filing of the Counter-Memorials of the
Union of South Africa, were fixed by two Orders of 13 January 1961.
By letters dated 28 March 1961, the Agent of the Government of
Ethiopia, on the one hand, requested that a time-limit be fixed within
which his Government might notify its intention to exercise the right
to choose a Judge ad hoc and might indicate the name of the person
chosen; and the Agent of the Government of Liberia, on the other
hand, made the same request in respect of that Government. Seised
of these two requests, and having taken cognizance of the two
Memorials which had been filed on 15 April 1961, the Court,
considering that the two applicant Governments were in the same
interest and were therefore, so far as the choice of a Judge ad hoc
was concerned, to be reckoned as one party only, by Order of 20 May
1961, joined the proceedings in the two cases, and fixed the time-
limit as requested.

On 30 November 1961, within the time-limit fixed for the presen-
tation of its first pleading, the Government of South Africa filed

6
322 SOUTH WEST AFRICA CASES (JUDGMENT 21} XII 62)

Preliminary Objections. Accordingly, an Order of 5 December 1961
recorded that by virtue of the provisions of Article 62, paragraph 3,
of the Rules of Court, the proceedings on the merits were suspended
and fixed 1 March 1962 as the time-limit within which the Govern-
ments of Ethiopia and Liberia might present a written statement of
their observations and submissions on the objections.

The statement having been presented within the prescribed time-
limit, the cases became ready for hearing on 1 March 1962 in respect
of the Preliminary Objections.

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 Government of South Africa chose the
Honourable J. T. van Wyk, Judge of the Appellate Division of the
Supreme Court of South Africa, to sit as Judge ad hoc.

On 2-5, 8-11, 15-17, and 19 and 22 October 1962, hearings were
held in the course of which the Court heard the oral arguments and
replies of Mr. verLoren van Themaat, Agent, Mr. de Villiers and
Mr. Muller, Counsel, on behalf of the Government of South Africa;
and of the Honourable Ernest A, Gross, Agent, and the Honourable
Edward R. Moore, Counsel, on behalf of the Governments of Ethio-
pia and Liberia.

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

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

“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 Mandateconferred
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 inter-
national 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 supervisory functions previously exer-
cised by the League of Nations with regard to the administration
of the Territory, and that the Union is under an obligation to
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SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

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 Arti-
cle 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 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, 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 Article 2.of
the Mandate and Article 22 of the Covenant; and that the Union
has the duty forthwith to cease the practice of apartheid in the
Territory.

G. The Union, in administering the Territory, has adopted and
applied legislation, regulations, proclamations, and administrative
decrees which are by their terms and in their application, arbitrary,
unreasonable, 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, admin-
istrative 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 Declara-
tion of Human Rights; 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 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 legis-
lation over the Territory inconsistent with the international status
of the Territory; that the foregoing action by the Union is in
324 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

violation of Article 2 of the Mandate and Article 22 of the Cove-
nant; that the Union has the duty to refrain from acts of administra-
tion 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 petitions 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 awards and orders, including an award of
costs, to effectuate its determinations’’;

In the Memorials:

“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 suck
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 Government 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 Territ-
ory, 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 Memor-
ial and summarized in Paragraphs 189 and 190 thereof, has practised
apartheid, 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
325

10

SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

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 Terri-
tory; 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 fulfil
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 summarized 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;

6. the Union, by virtue of the acts described in Chapter VII
herein, has established military bases within the Territory in vio-
lation 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;

g. 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
326

SOUTH WEST AFRICA CASES (JUDGMENT 2I XII 62)

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 substantial 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.”’

On behalf of the Government of South Africa,
In the Preliminary Objections:

“For all or any of the reasons set out in these Preliminary Objec-
tions, the Government of the Republic of South Africa submits that
the Governments of Ethiopia and Liberia have no locus stand: in
these contentious proceedings and that the Honourable Court has
no jurisdiction to hear, or adjudicate upon, the questions of law and
fact raised in the Applications and Memorials; and prays that the
Court may adjudge and determine accordingly.”

On behalf of the Governments of Ethiopia and Liberia,
In the written Observations on the Preliminary Objections:

“May it please this Honourable Court to dismiss the Preliminary
Objections raised by the Government of the Republic of South
Africa in the South West Africa Cases, and to adjudge and declare
that the Court has juridiction to hear and adjudicate the questions
of law and fact raised in the Applications and Memorials of the
Governments of Ethiopia and Liberia in these Cases.”

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

On behalf of the Government of South Africa,
at the hearing on 11 October 1962:

“For all or any one or more of the reasons set out in its written
and oral statements, the Government of the Republic of South
Africa submits that the Governments of Ethiopia and Liberia have
no locus standi in these contentious proceedings, and that the Court
has no jurisdiction to hear or adjudicate upon the questions of law
and fact raised in the Applications and Memorials, more particularly
because:

Firstly, by reason of the dissolution of the League of Nations,
the Mandate for South West Africa is no longer a ‘treaty or con-
327 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

vention in force’ within the meaning of Article 37 of the Statute
of the Court, this submission being advanced

(a) with respect to the said Mandate Agreement as a whole,
including Article 7 thereof, and

(b) in any event, with respect to Article 7 itself;

Secondly, neither the Government of Ethiopia nor the Govern-
ment of Liberia is ‘another Member of the League of Nations’, as
required for locus standi by Article 7 of the Mandate for South
West Africa;

Thirdly, the conflict or disagreement alleged by the Governments
of Ethiopia and Liberia to exist between them and the Government
of the Republic of South Africa, is by reason of its nature and
content not a ‘dispute’ as envisaged in Article 7 of the Mandate
for South West Africa, more particularly in that no material
interests of the Governments of Ethiopia and/or Liberia or of
their nationals are involved therein or affected thereby;

Fourthly, the alleged conflict or disagreement is as regards its
state of development not a ‘dispute’ which ‘cannot be settled by
negotiation’ within the meaning of Article 7 of the Mandate for
South West Africa.”

On behalf of the Governments of Ethiopia and Liberia,
at the hearing on 17 October 1962:

“May it please the Court to dismiss the Preliminary Objections
raised by the Government of the Republic of South Africa in
the South West Africa cases, and to adjudge and declare that the
Court has jurisdiction to hear and adjudicate the questions of law

and fact raised in the Applications and Memorials of the Governments
of Ethiopia and Liberia in these cases.”

Questions having been put to the Parties by two Judges, the Court
decided that the answers to them should be given after the oral
rejoinder, first on behalf of the Republic of South Africa and then
on behalf of Ethiopia and Liberia; and that, in the same order, the
Agents should be called upon to indicate whether those questions
and the answers given to them had led them to amend their re-
spective submissions and, if so, to present the amended submissions.

Availing themselves of this decision, the Agents of the Parties
gave their answers on 22 October 1962. The Agent of the Republic
of South Africa amended the Submissions which he had read at the
hearing on 11 October by substituting the following paragraph for
the paragraph commencing with the word “Firstly”’:

“Firstly, the Mandate for South West Africa has never been, or
at any rate is since the dissolution of the League of Nations no
longer, a ‘treaty or convention in force’ within the meaning of
Article 37 of the Statute of the Court, this Submission being advanced

(a) with respect to the Mandate as a whole, including Article 7
thereof; and

(6) in any event, with respect to Article 7 itself.”

12
328 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

At the hearing on 22 October 1962, the Agent of Ethiopia and
Liberia stated that he did not intend to amend his Submissions.

*
* *

To found the jurisdiction of the Court in the proceedings, the
Applicants, having regard to Article 80, paragraph 1, of the Charter
of the United Nations, relied on Article 7 of the Mandate of 17 De-
cember 1920 for South West Africa, and Article 37 of the Statute
of the Court. In response to the Applications and Memorials of
Ethiopia and Liberia, the Government of South Africa filed Pre-
liminary Objections to the jurisdiction of the Court. It is these
Objections which call for consideration in the present phase of the
proceedings.

Before undertaking this task, however, the Court finds it necessary
to decide a preliminary question relating to the existence of the
dispute which is the subject of the Applications. The view has been
advanced that if no dispute within the purview of Article 7 of the
Mandate and Articles 36 and 37 of the Statute of the Court exists in
fact, a conclusion of incompetence or fin de non-recevoir must follow.

It is to be noted that this preliminary question really centres on
the point as to the existence of a dispute between the Applicants
and the Respondent, irrespective of the nature and subject of the
dispute laid before the Court in the present case. In the case of the
Mavrommatis Palestine Concessions (P.C.1.J., Series A, No. 2, p. 11)
the Permanent Court defines a dispute as ‘‘a disagreement on a
point of law or fact, a conflict of legal views or interests between
two persons”. The said Judgment, in proceeding to examine the
nature of the dispute, enunciates this definition, only after establish-
ing that the conditions for the existence of a dispute are fulfilled.
In other words it is not sufficient for one party to a contentious
case to assert that a dispute exists with the other party. A mere
assertion is not sufficient to prove the existence of a dispute any more
than a mere denial of the existence of the dispute proves its non-
existence. Nor is it adequate to show that the interests of the two
parties to such a case are in conflict. It must be shown that the
claim of one party is positively opposed by the other. Tested by
this criterion there can be no doubt about the existence of a dispute
between the Parties before the Court, since it is clearly constituted
by their opposing attitudes relating to the performance of the obli-
gations of the Mandate by the Respondent as Mandatory.

*
* *

Inasmuch as the grounds on which the Preliminary Objections
rely are generally connected with the interpretation of the Mandate

13
329 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

Agreement for South West Africa, it is also necessary at the outset
to give a brief account of the origin, nature and characteristics of
the Mandates System established by the Covenant of the League
of Nations.

Under Article 119 of the Treaty of Versailles of 28 June i919,
Germany renounced in favour of the Principal Allied and Associated
Powers all her rights and titles over her overseas possessions. The
said Powers, shortly before the signature of the Treaty of Peace,
agreed to allocate them as Mandates to certain Allied States which
had already occupied them. The terms of all the “‘C’’ Mandates were
drafted by a Committee of the Supreme Council of the Peace
Conference and approved by the representatives of the Principal
Allied and Associated Powers in the autumn of 1919, with one
reservation which was subsequently withdrawn. All these actions
were taken before the Covenant took effect and before the League
of Nations was established and started functioning in January 1920.
The terms of each Mandate were subsequently defined and confirmed
by the Council in conformity with Article 22 of the Covenant.

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

These features are inherent in the Mandates System as con-
ceived by its authors and as entrusted to the respective organs of
the League and the Member States for application. The rights
of the Mandatory in relation to the mandated territory and the
inhabitants have their foundation in the obligations of the Manda-
tory and they are, so to speak, mere tools given to enable it to fulfil
its obligations. The fact is that each Mandate under the Mandates
System constitutes a new international institution, the primary,
overriding purpose of which is to promote “the well-being and
development”’ of the people of the territory under Mandate.

*
* *

As has already been pointed out, Ethiopia and Liberia indicated
in their Applications the provisions on which they founded the
jurisdiction of the Court to hear and determine the dispute which
they referred toit; to this the Republic of South Africa replied with
a denial of jurisdiction.

The issue of the jurisdiction of the Court was raised by the
Respondent in the form of four Preliminary Objections. Its sub-

14
330 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

missions at the end of its written and oral statements are substantial-
ly the same, except that on the latter occasion the grounds on
which the respective objections are based were summarized under
each Objection, and, with reference to the submissions in the first
Preliminary Objection, the Respondent introduced a modification
on 22 October 1962, as a consequence of its replies to questions put
to the Parties by Members of the Court. The Court will deal first
with this modification.

The amended text of the First Objection reads:

“Firstly, the Mandate for South West Africa has never been, or
at any rate is since the dissolution of the League of Nations no longer,
a ‘treaty or convention in force’ within the meaning of Article 37
of the Statute of the Court, this Submission being advanced

(a) with respect to the Mandate as a whole, including Article 7

thereof; and

(6) in any event, with respect to Article 7 itself.”

The amendment consists in the addition of the italicized words.
Counsel for the Respondent made a statement as a preface to
his amendment of 22 October 1962. From this statement it
appears that originally the Respondent had always considered or as-
sumed that the Mandate for South West Africa had beena “treaty or
convention in itself, that is, an international agreement between the
Mandatory on the one hand, and, on the other, the Council repre-
senting the League and/or its Members”; and that it had stated
several times “‘that that proposition could be taken to be common
cause as related to the period of the lifetime of the League”; but
“that the alternative view might well be taken that in defining the
terms of the Mandate, the Council was taking executive action in
pursuance of the Covenant (which of course was a convention) and
was not entering into an agreement which would itself be a treaty
or convention”. At the same time, the statement added: “This
view, we put it no higher than a view that might be taken, would
regard the Council’s Declaration as setting forth a resolution of the
Council, which would, like any other valid resolution of the Council,
owe its legal force to the fact of having been duly resolved by
the Council in the exercise of powers conferred upon it by the Cove-
nant.”

In the Court’s opinion, this modified view is not well-founded for
the following reasons. For its confirmation, the Mandate for South
West Africa took the form of a resolution of the Council of the League
but obviously it was of a different character. It cannot be correctly
regarded as embodying only an executive action in pursuance of
the Covenant. The Mandate, in fact and in law, is an international
agreement having the character of a treaty or convention. The
Preamble of the Mandate itself shows this character. The agreement

15
331 SOUTH WEST AFRICA CASES (JUDGMENT 2I XII 62)

referred to therein was effected by a decision of the Principal Allied
and Associated Powers including Great Britain taken on 7 May 1919
to confer a Mandate for the Territory on His Britannic Majesty and
by the confirmation of its acceptance on 9 May 1919 by the Union
of South Africa. The second and third paragraphs of the Preamble
record these facts. It is further stated therein that “His Britannic
Majesty, for and on behalf of the Government of the Union of
South Africa ... has undertaken to exercise it on behalf of the League
of Nations in accordance with the following provisions”. These
“provisions” were formulated ‘‘in the following terms”.

The draft Mandate containing the explicit terms was presented
to the Council of the League in December 1920 and, with a few
changes, was confirmed on 17 December 1920. The fourth and final
paragraph of the Preamble recites the provisions of Article 22,
paragraph 8, of the Covenant, and then “confirming the said

”?

Mandate, defines its terms as follows: ...”’.

Thus it can be seen from what has been stated above that this
Mandate, like practically ali other similar Mandates, is a special
type of instrument composite in nature and instituting a novel
international regime. It incorporates a definite agreement consisting
in the conferment and acceptance of a Mandate for South West
Africa, a provisional or tentative agreement on the terms of this
Mandate between the Principal Allied and Associated Powers to be
proposed to the Council of the League of Nations and a formal
confirmation agreement on the terms therein explicitly defined by the
Council and agreed to between the Mandatory and the Council
representing the League and its Members. It is an instrument having
the character of a treaty or convention and embodying international
engagements for the Mandatory as defined by the Council and
accepted by the Mandatory.

The fact that the Mandate is described in its last paragraph as
a Declaration [exemplaire in the French text] is of no legal signifi-
cance. The Mandates confirmed by the Council of the League of
Nations in the course of 1922 are all called instruments [actes in the
French text], such as the French Mandate for Togoland, the British
Mandate for the Cameroons, the Belgian Mandate for East Africa
(Ruanda-Urundi), etc. Terminology is not a determinant factor as
to the character of an international agreement or undertaking. In
the practice of States and of international organizations and in the
jurisprudence of international courts, there exists a great variety of
usage; there are many different types of acts to which the character
of treaty stipulations has been attached.

Moreover, the fact that the Mandate confirmed by the Council of
the League embodies a provision that it “shall be deposited in the
archives of the League of Nations’ and that ‘‘certified copies shall
be forwarded by the Secretary-General of the League of Nations

16
332 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

to all Powers Signatories of the Treaty of Peace with Germany”,
clearly implies that it was intended and understood to be an inter-
national treaty or convention embodying international engagements
of general interest to the Signatory Powers of the German Peace
Treaty.

It has been argued that the Mandate in question was not registered
in accordance with Article 18 of the Covenant which provided:
“No such treaty or international engagement shall be binding until
so registered.” If the Mandate was ab initio null and void on the
ground of non-registration it would follow that the Respondent
has not and has never had a legal title for its administration of the
territory of South West Africa; it would therefore be impossible for
it to maintain that it has had such a title up to the discovery of this
ground of nullity. The fact is that Article 18 provided for regis-
tration of “Every treaty or international engagement entered into
hereafter by any Member of the League” and the word “‘hereafter’’
meant after 10 January 1920 when the Covenant took effect,
whereas the Mandate for South West Africa, as stated in the pre-
amble of the instrument, had actually been conferred on and
accepted by the Union of South Africa more than seven months
earlier on 7-9 May 1919; and its terms had been provisionally agreed
upon between the Principal Allied and Associated Powers and the
Mandatory, in August 1919. Moreover, Article 18, designed to
secure publicity and avoid secret treaties, could not apply in the
same way in respect of treaties to which the League of Nations
itself was one of the Parties as in respect of treaties concluded
among individual Member States. The Mandate for South West
Africa, like all the other Mandates, is an international instru-
ment of an institutional character, to which the League of Nations,
represented by the Council, was itself a Party. It is the implemen-
tation of an institution in which all the Member States are interes-
ted as such. The procedure to give the necessary publicity to the
Mandates including the one under consideration was applied in
view of their special character, and in any event they were publish-
ed in the Official Journal of the League of Nations.

*%
* *

Since the Mandate in question had the character of a treaty or
convention at. its start, the next relevant question to consider is
whether this treaty or convention, with respect to the Mandate as
a whole including Article 7 thereof, or with respect to Article 7 itself,
is still in force. The Respondent contends that it is not in force, and
this contention constitutes the essence of the First Preliminary
‘Ybjection. It is argued that the rights and obligations under the
“Mandate in relation to the administration of the territory of South

7
333 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

West Africa being of an objective character still exist, while those
rights and obligations relating to administrative supervision by
the League and submission to the Permanent Court of International
Justice, being of a contractual character, have necessarily become
extinct on the dissolution of the League of Nations which involved
as a consequence the ending of membership of the League, leaving
only one party to the contract and resulting in the total extinction
of the contractual relationship.

The Respondent further argues that the casualties arising from
the demise of the League of Nations are not therefore confined to
the provisions relating to supervision by the League over the
Mandate but include Article 7 by which the Respondent agreed to
submit to the jurisdiction of the Permanent Court of International
Justice in any dispute whatever between it as Mandatory and
another Member of the League of Nations relating to the interpre-
tation or the application of the provisions of the Mandate. If the
object of Article 7 of the Mandate is the submission to the Court
of disputes relating to the interpretation or the application of the
Mandate, it naturally follows that no Application based on Article 7
could be accepted unless the said Mandate, of which Article 7 is
a part, is in force. This proposition, moreover, constitutes the very
basis of the Applications to the Court.

Similar contentions were advanced by che Respondent in 1950,
and the Court in its Advisory Opinion ruled:

“The authority which the Union Government exercises over the
Territory is based on the Mandate. If the Mandate lapsed, as the
Union Government contends, the latter’s authority would equally
have lapsed. To retain the rights derived from the Mandate and
to deny the obligations thereunder could not be justified.” (J.C./.

Reports 1950, page 133.)

After observing that the international obligations assumed by the
Union of South Africa were of two kinds, those ‘‘directly related to
the administration of the Territory” and corresponding “to the
sacred trust of civilization referred to in Article 22 of the Covenant”
and those “related to the machinery for implementation” and
“closely linked to the supervision and control of the League”,
corresponding to the “ ‘securities for the performance of this trust’
referred to in the same article’, the Court went on to say with
reference to the second group of obligations:

“The obligation incumbent upon a mandatory State to accept
international supervision and to submit reports is an important
part of the Mandates System. When the authors of the Covenant
created this system, they considered that the effective performance
of the sacred trust of civilization by the mandatory Powers required
that the administration of mandated territories should be subject to
international supervision... It cannot be admitted that the obligation

18
334 SOUTH WEST AFRICA CASES (JUDGMENT 21 XIi 62)

to submit to supervision has disappeared merely because the super-
visory organ has ceased to exist...” (Lbtd., page 136.)

The findings of the Court on the obligation of the Union Govern-
ment to submit to international supervision are thus crystal clear.
Indeed, to exclude the obligations connected with the Mandate
would be to exclude the very essence of the Mandate.

That the League of Nations in ending its own existence did not
terminate the Mandates but that it definitely intended to continue
them by its resolution of 18 April 1946 will be seen later when
the Court states its views as to the true effect of the League’s final
act of dissolution on the Mandates.

What is relevant to the issue under consideration is the finding
of the Court in the same Advisory Opinion on the effect of the
dissolution of the League of Nations on Article 7 of the Mandate.
After recalling the provisions of this Article, the Court stated:

“Having regard to Article 37 of the Statute of the International
Court of Justice, and Article 80, paragraph 1, of the Charter, the
Court is of opinion that this clause in the Mandate is still in force and
that, therefore, the Union of South Africa is under an obligation to
accept the compulsory jurisdiction of the Court according to those
provisions.” (Ib¢d., page 138.)

It is also to be recalled that while the Court was divided on the
other points involved in the questions put to it for an Advisory
Opinion, it was unanimous on the finding that Article 7 of the
Mandate relating to the obligation of the Union of South Africa
to submit to the compulsory jurisdiction of this Court is still ‘in
force’.

The unanimous holding of the Court in 1950 on the survival and
continuing effect of Article 7 of the Mandate, continues to reflect
the Court’s opinion today. Nothing has since occurred which would
warrant the Court reconsidering it. All important facts were stated
or referred to in the proceedings before the Court in 1950.

The Court finds that, though the League of Nations and the
Permanent Court of International Justice have both ceased to exist,
the obligation of the Respondent to submit to the compulsor,
jurisdiction of that Court was effectively transferred to this Court
before the dissolution of the League of Nations. By its own reso-
lution of 18 April 1946 the League ceased to exist from the following
day, ie. 19 April 1946. The Charter of the United Nations, in
accordance with Article 110 thereof, entered into force on 24 Oc-
tober 1945. South Africa, Ethiopia and Liberia, the three Parties
to the present proceedings, deposited their ratifications respectively
on 7 November 1945, 2 November 1945 and 13 November 1945,

19
335 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

and in accordance with paragraph 4 of the said Article 110 all
became original Members of the United Nations from the respective
dates. They have since been subjected to the obligations, and en-
titled to the rights, under the Charter. One of these obligations is
embodied in Article 37 of the Statute of this Court, which by
Article 92 of the Charter “forms an integral part of the present
Charter”, and by Article 93 thereof “All Members of the United
Nations are 1#s0 facto parties to the Statute of the International
Court of Justice”. By the effect of these provisions the Respondent
has bound itself since 7 November 1945, when the League of
Nations and the Permanent Court were still in existence and when
therefore Article 7 of the Mandate was also in full force, to accept
the compulsory jurisdiction of this Court in lieu of that of the
Permanent Court, to which it had originally agreed to submit under
Article 7 of the Mandate.

This transferred obligation was voluntarily assumed by the
Respondent when joining the United Nations. There could be no
question of lack of consent on the part of the Respondent as regards
this transfer to this Court of the Respondent’s obligation under
Article 7 of the Mandate to submit to the compulsory jurisdiction
of the Permanent Court. The validity of Article 7, in the Court’s
view, was not affected by the dissolution of the League, just as the
Mandate as a whole is still in force for the reasons stated above.

*
* *

The Second Objection of the Respondent consists mainly of an
argument which has been advanced in support of the First Ob-
jection. It centres on the term “another Member of the League
of Nations’ in Article 7, of which paragraph 2 reads:

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

It is contended that since all Member States of the League
necessarily lost their membership and its accompanying rights when
the League itself ceased to exist on 19 April 1946, there could no
longer be ‘another Member of the League of Nations” today.
According to this contention, even assuming that Article 7 of
the Mandate is still in force as a treaty or convention within the
meaning of Article 37 of the Statute, no State has “locus standi”
or is qualified to invoke the jurisdiction of this Court in any dispute
with the Respondent as Mandatory.

20
336 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

This contention is claimed to be based upon the natural and
ordinary meaning of the words employed in the provision. But this
rule of interpretation is not an absolute one. Where such a method of
interpretation results in a meaning incompatible with the spirit,
purpose and context of the clause or instrument in which the words
are contained, no reliance can be validly placed on it.

In the first place, judicial protection of the sacred trust in each Man-
date was an essential feature of the Mandates System. The essence
of this system, as conceived by its authors and embodied in Ar-
ticle 22 of the Covenant of the League of Nations, consisted, as stated
earlier, of two features: a Mandate conferred upon a Power as ‘‘a
sacred trust of civilisation” and the “‘securities for the performance of
this trust”. While the faithful discharge of the trust was assigned
to the Mandatory Power alone, the duty and the right of ensuring
the performance of this trust were given to the League with its
Council, the Assembly, the Permanent Mandates Commission and
all its Members within the limits of their respective authority,
power and functions, as constituting administrative supervision, and
the Permanent Court was to adjudicate and determine any dispute
within the meaning of Article 7 of the Mandate. The administrative
supervision by the League constituted a normal security to ensure
full performance by the Mandatory of the “sacred trust” toward the
inhabitants of the mandated territory, but the specially assigned
role of the Court was even more essential, since it was to serve as
the final bulwark of protection by recourse to the Court against
possible abuse or breaches of the Mandate.

The raison d’être of this essential provision in the Mandate is
obvious. Without this additional security the supervision by the
League and its Members could not be effective in the last resort.
For example, under Article 6 of the Mandate for South West Africa:

“The Mandatory shall make to the Council of the League of Na-
tions 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, 2, 4 and 5.”

In actual operation the Council when satisfied with the report
on the recommendation of the Permanent Mandates Commission
would approve the report. If some Member of the Council had
doubts on some point or points in the report, explanations would be
asked from the representative of the Mandatory present. If the ex-
planations were considered satisfactory, approval of the annual
report would follow. In either case the approval meant the unani-
mous agreement of all the representatives including that of the
Mandatory who, under Article 4, paragraph 5, of the Covenant,

21
337 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

was entitled to send a representative to such a meeting to take part
in the discussion and to vote. But if some measure proposed to the
Mandatory on the recommendation of the Permanent Mandates
Commission in the interest of the inhabitants of the mandated
territory and within the terms of the Mandate and of Article 22
of the Covenant should be opposed by the Mandatory, it could
not be adopted by the Council. Or if the Mandatory should adopt
some measure in connection with its administration of the
Territory notwithstanding the objection of the Permanent Mandates
Commission and the Council that it was a violation of the Mandate,
and should persist in carrying it out, a conflict would occur. This
possibility is not a mere conjecture or hypothesis. As a matter of
fact, the Respondent had more than once intimated its desire to
incorporate South West Africa into the Union and the Permanent
Mandates Commission of the League each time objected to it
as being contrary to the Mandate; and the same idea of the
Mandatory Power was also conveyed to the United Nations in 1946.
If it should have attempted in the days of the League to carry out
the idea contrary to paragraph 1 of Article 7, an important dispute
would arise between it and the Council of the League.

Under the unanimity rule (Articles 4 and 5 of the Covenant), the
Council could not impose its own view on the Mandatory. It could
of course ask for an advisory opinion of the Permanent Court but
that opinion would not have binding force, and the Mandatory
could continue to turn a deaf ear to the Council’s admonitions.
In. such an event the only course left to defend the interests of the
inhabitants in order to protect the sacred trust would be to obtain
an adjudication by the Court on the matter connected with the
interpretation or the application of the provisions of the Mandate.
But neither the Council nor the League was entitled to appear
before the Court. The only effective recourse for protection of the
sacred trust would be for a Member or Members of the League
to invoke Article 7 and bring the dispute as also one between
them and the Mandatory to the Permanent Court for adjudication.
It was for this all-important purpose that the provision was
couched in broad terms embracing “any dispute whatever ...
between the Mandatory and another Member of the League of
Nations relating to the interpretation or the application of the
provisions of the Mandate ... if it cannot be settled by negotiation”.
It is thus seen what an essential part Article 7 was intended
to play as one of the securities in the Mandates System for the
observance of the obligations by the Mandatory.

In the second place, besides the essentiality of judicial protection
for the sacred trust and for the rights of Member States under the
Mandates, and the lack of capacity on the part of the League or the
Council to invoke such protection, the right to implead the Mandato-
ty Power before the Permanent Court was specially and expressly

22
338 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

conferred on the Members of the League, evidently also because it
was the most reliable procedure of ensuring protection by the Court,
whatever might happen to or arise from the machinery of admini-
strative supervision.

The third reason for concluding that Article 7 with particular
reference to the term “another Member of the League of Nations”
continues to be applicable is that obviously an agreement was
reached among all the Members of the League at the Assembly
session in April 1946 to continue the different Mandates as far as
it was practically feasible or operable with reference to the obliga-
tions of the Mandatory Powers and therefore to maintain the rights
of the Members of the League, notwithstanding the dissolution of
the League itself. This agreement is evidenced not only by the
contents of the dissolution resolution of 18 April 1946 but also by
the discussions relating to the question of Mandates in the First
Committee of the Assembly and the whole set of surrounding
circumstances which preceded, and prevailed at, the session. More-
over, the Court sees no valid ground for departing from the conclusion
reached in the Advisory Opinion of 1950 to the effect that the
dissolution of the League of Nations has not rendered inoperable
Article 7 of the Mandate. Those States who were Members of the
League at the time of its dissolution continue to have the right to
invoke the compulsory jurisdiction of the Court, as they had the
right to do before the dissolution of the League. That right con-
tinues to exist for as long as the Respondent holds on to the right
to administer the territory under the Mandate.

The Assembly of the League of Nations met in April 1946 specially
to arrange for the dissolution of the League. Long before the session
important events had taken place which bore a direct influence on
its course of action at the indicated session. The Charter of the
United Nations with its Chapter XI on non-self-governing territories
and Chapters XII and XIII on the new trusteeship system embody-
ing principles corresponding to those in Article 22 of the Covenant
on Mandates and the Mandates System entered into force in
October 1945 and the United Nations began to operate in January
1946, and the General Assembly held its first session in the follow-
ing February. When the Assembiy of the League actually met
subsequently in April of the same year, it had full knowledge of
these events. Therefore before it finally passed the dissolution reso-
lution, it took special steps to provide for the continuation of the
Mandates and the Mandate System ‘‘until other arrangements have
been agreed between the United Nations and the respective mandato-
ry Powers”. It was fully realized by all the representatives attending
the Assembly session that the operation of the Mandates during the
transitional period was bound to be handicapped by legal technicali-
ties and formalities. Accordingly they took special steps tomeet them.
For example, these special circumstances show that the assembled

23
339 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

representatives did not attach importance to the letter of the
constitutional procedure. Under the Covenant the role of the
Council in the Mandates System was preponderant. But the Council
held no meeting to deal with the question of what should be done
with the Mandates after the League’s dissolution. Instead the
Assembly by a resolution of 12 April 1946 attributed to itself the
responsibilities of the Council. The resolution reads:

“The Assembly, with the concurrence of all the Members of the
Council which are represented at its present session: Decides that,
so far as required, it will, during the present session, assume the
functions falling within the competence of the Council.”

On the basis of this resolution, the Assembly also approved the
end of the Mandates for Syria, Lebanon and Trans-Jordan.

To provide for the situation certain to arise from the act of
dissolution, and to continue the Mandates on the basis of a sacred
trust, prolonged discussions were held both in the Assembly and in
its First Committee to find ways and means of meeting the difficul-
ties and making up for the imperfections as far as was practicable.
It was in these circumstances that all the Mandatory Powers made
declarations of their intentions relating to their respective Mandates.
Each of the delegates of the Mandatory Powers present solemnly ex-
pressed their intention to continue to administer in each case the
Territory: for the United Kingdom, ‘‘in accordance with the general
principles of the existing mandates’; for France, “to pursue the
execution of the mission entrusted to it by the League of Nations”;
for New Zealand, ‘‘in accordance with the terms of the Mandate’’;
for Belgium, to “remain fully alive to ail the obligations devolving
on members of the United Nations under Article 80 of the Charter”;
for Australia, “in accordance with the provision of the Mandates,
for the protection and advancement of the inhabitants’. The state-
ment by the delegate of South Africa, at the second plenary meeting
of the Assembly on g April 1946 is particularly clear. After an-
nouncing that

“it is the intention of the Union Government, at the forthcoming
session of the United Nations General Assembly in New York, to
formulate its case for according South West Africa a status under
which it would be internationally recognized as an integral part of
the Union’, :

he continues:

“In the mearitime, the Union will continue to administer the
territory scrupulously in accordance with the obligations of the

24
340 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

Mandate, for the advancement and promotion of the interests of the
inhabitants, as she has done during the past six years when meetings
of the Mandates Commission could not be held.

The disappearance of those organs of the League concerned with
the supervision of mandates, primarily the Mandates Commission
and the League Council, will necessarily preclude complete compli-
ance with the letter of the Mandate. The Union Government will
nevertheless regard the dissolution of the League as in no way dim-
inishing its obligations under the Mandate, which it will continue
to discharge with the full and proper appreciation of its respon-
sibilities until such time as other arrangements are agreed upon
concerning the future status of the territory.”

There could be no clearer recognition on the part of the Government
of South Africa of the continuance of its obligations under the
Mandate for South West Africa, including Article 7, after the disso-
lution of the League of Nations.

It was on the basis of the declarations of the Mandatory Powers
as well as on the views expressed by the other Members that
the League Assembly unanimously adopted its final resolution of
18 April 1946, the last two paragraphs of which read:

“3, Recognizes that, on the termination of the League’s existence,
its functions with respect to the mandated territories will come to
anend, but notes that Chapters XI, XII and XIII of the Charter of the
United Nations embody principles corresponding to those declared

‘in Article 22 of the Covenant of the League;

4. Takes note of the expressed intentions of the Members of
the League now administering territories under mandate to continue
to administer them for the well-being and development of the peoples
concerned in accordance with the obligations contained in the
respective Mandates, until other arrangements have been agreed
between the United Nations and the respective mandatory Powers.”

The Chinese delegate, in introducing the resolution in the Assem-
bly relating to the possible effect of the League’s dissolution on the
problem of the Mandates from which the two passages are taken,
stated :

“Tt was gratifying to the Chinese delegation, as representing a
country which had always stood for the principle of trusteeship, that
all the Mandatory Powers had announced their intention to admin-
ister the territories under their control in accordance with their
obligations under the mandates system until other arrangements
were agreed upon.”

The French delegate in supporting the resolution said that he
wished :

“to stress once more the fact that all territories under the mandate
of his Government would continue to be administered in the spirit of
the Covenant and of the Charter’’.

25
341 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

Professor Bailey of Australia, Rapporteur, speaking as delegate of
his country, welcomed:

“the initiative of the Chinese delegation in moving the resolution,
which he supported. The Australian delegation had made its position
clear in the Assembly—namely, that Australia did not regard the
dissolution of the League as weakening the obligations of countries
administering mandates. They regarded the obligation as still in
force and would continue to administer their mandated territories
in accordance with the provisions of the mandates for the well-
being of the inhabitants.”

The delegate of the United Kingdom made it even clearer that
there was agreement by all the Mandatory Powers when he ‘‘formal-
ly seconded the resolution on behalf of his Government”:

“Tt had been settled in consultation and agreement by all coun-
tries interested in mandates and he thought it could therefore be
passed without discussion and with complete unanimity.”

It is clear from the foregoing account that there was a unanimous
agreement among all the Member States present at the Assembly
meeting that the Mandates should be continued to be exercised in
accordance with the obligations therein defined although the disso-
lution of the League, in the words of the representative of South
Africa at the meeting, “will necessarily preclude complete com-
pliance with the letter of the Mandate’’, ie. notwithstanding the
fact that some organs of the League like the Council and the
Permanent Mandates Commission would be missing. In other words
the common understanding of the Member States in the Assembly
—including the Mandatory Powers—in passing the said resolution,
was to continue the Mandates, however imperfect the whole system
would be after the League’s dissolution, and as much as it would
be operable, until other arrangements were agreed upon by the
Mandatory Powers with the United Nations concerning their
respective Mandates. Manifestly, this continuance of obligations
under the Mandate could not begin to operate until the day after
the dissolution of the League of Nations and hence the literal
objections derived from the words ‘‘another Member of the League
of Nations” are not meaningful, since the resolution of 18 April 1946
was adopted precisely with a view to averting them and continuing
the Mandate as a treaty between the Mandatory and the Members
of the League of Nations.

In conclusion, any interpretation of Article 7 or more particularly
the term therein ‘‘another Member of the League of Nations” must
take into consideration all of the relevant facts and circumstances
relating to the act of dissolution of the League, in order to ascertain
the true intent and purpose of the Members of the Assembly in
adopting the final resolution of 18 April 1946.

26
342 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

In further support of the finding of an agreement at the time of
the dissolution of the League to maintain the status quo as far as
possible in regard to the Mandates pending other arrangements
agreed between the United Nations and the respective Mandatory
Powers, it should be stated that the interval was expected to be
of short duration and that in due course the different Mandates
would be converted by mutual agreement into trusteeship agree-
ments under the Charter of the United Nations. This expectation
has been realized and the only exception is the Respondent’s
Mandate for South West Africa. In the light of this fact the finding
of an agreement appears all the more justified.

To deny the existence of the agreement it has been said that
Article 7 was not an essential provision of the Mandate instrument
for the protection of.the sacred trust of civilization. If therefore
Article 7 were not an essential tool in the sense indicated, the
claim of jurisdiction would fall to the ground. In support of this
argument attention has been called to the fact that three of the
four “C’’ Mandates, when brought under the trusteeship provisions
of the Charter of the United Nations, did not contain in the
respective Trusteeship Agreements any comparable clause and that
these three were the Trusteeship Agreements for the territories
previously held under Mandate by Japan, Australia and New Zea-
land. The point is drawn that what was essential the moment before
was no longer essential the moment after, and yet the principles
under the Mandates system corresponded to those under the
Trusteeship system. This argument apparently overlooks one im-
portant difference in the structure and working of the two systems
and losesits whole point when it is noted that under Article 18 of
the Charter of the United Nations, “Decisions of the General Assem-
bly on important questions shall be made by a two-thirds majority
of the members present and voting’, whereas the unanimity rule
prevailed in the Council and the Assembly of the League of Nations
under the Covenant. Thus legally valid decisions can be taken by
the General Assembly of the United Nations and the Trusteeship
Council under Chapter XIII of the Charter without the concurrence
of the trustee State, and the necessity for invoking the Permanent
Court for judicial protection which prevailed under the Mandates
system is dispensed with under the Charter.

For the reasons stated, the First and Second Objections must be
dismissed.

*
* *

The Third Preliminary Objection consists essentially of the pro-
position that the dispute brought before the Court by the Appli-

27
343 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

cants is not a dispute as envisaged in Article 7 of the Mandate—
more particularly in that the said conflict or disagreement does not
affect any material interests of the Applicant States or their
nationals.

In support of this proposition, the Respondent contends that the
word ‘‘dispute” must be given its generally accepted meaning in a
context of a compulsory jurisdiction clause and that, when so
interpreted, it means a disagreement or conflict between the
Mandatory and another Member of the League concerning the legal
rights and interests of such other Member in the matter before the
Court; that “the obligations imposed for the benefit of the in-
habitants would have been owed to the League on whose behalf
the Mandatory undertook to exercise the Mandate’ and that
“League Members would then, by virtue of their membership, be
entitled to participate in the League’s supervision of the Mandate,
but would individually, vis-à-vis the Mandatory, have no legal right
or interest in the observance by the Mandatory of its duties to
the inhabitants”.

The question which calls for the Court’s consideration is whether
the dispute is a “dispute” as envisaged in Article 7 of the Mandate
and within the meaning of Article 36 of the Statute of the Court.

The Respondent’s contention runs counter to the natural and
ordinary meaning of the provisions of Article 7 of the Mandate,
which mentions “any dispute whatever’ arising between the Manda-
tory and another Member of the League of Nations “relating to
the interpretation or the application of the provisions of the
Mandate’. The language used is broad, clear and precise: it gives
rise to no ambiguity and it permits of no exception. It refers to
any dispute whatever relating not to any one particular provision
or provisions, but to “the provisions’ of the Mandate, obviously
meaning all or any provisions, whether they relate to substantive
obligations of the Mandatory toward the inhabitants of the Territory
or toward the other Members of the League or to its obligation to
submit to supervision by the League under Article 6 or to protection
under Article 7 itself. For the manifest scope and purport of the
provisions of this Article indicate that the Members of the League
were understood to have a legal right or interest in the observance
by the Mandatory of its obligations both toward the inhabitants of
the Mandated Territory, and toward the League of Nations and its
Members.

Nor can it be said, as argued by the Respondent, that any broad
interpretation of the compulsory jurisdiction in question would be
incompatible with Article 22 of the Covenant on which all Mandates
are based, especially relating to the provisions of Article 7, because
Article 22 did not provide for the Mandatory’s submission to the
Permanent Court in regard to its observance of the Mandate. But

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344 SOUTH WEST AFRICA CASES (JUDGMENT 21 XIi 62)

Article 7, paragraph 2, is clearly in the nature of implementing one
of the ‘‘securities for the performance of this trust’, mentioned in
Article 22, paragraph 1. It was embodied in the draft agreement
among the Principal Allied and Associated Powers and proposed
to the Council of the League by the representative of the United
Kingdom as original Mandatory on behalf of South Africa, the
present Mandatory for South West Africa. The right to take legal
action conferred by Article 7 on Member States of the League of
Nations is an essential part of the Mandate itself and inseparable
from its exercise. Moreover, Article 7 reads: ‘The Mandatory agrees
that...”, so that there could be no doubt about the scope and effect
of the provision at the time of its stipulation.

While Article 6 of the Mandate under consideration provides for
administrative supervision by the League, Article 7 in effect pro-
vides, with the express agreement of the Mandatory, for judicial
protection by the Permanent Court by vesting the right of invoking
the compulsory jurisdiction against the Mandatory for the same
purpose in each of the other Members of the League. Protection
of the material interests of the Members or their nationals is of
course included within its compass, but the well-being and develop-
ment of the inhabitants of the Mandated territory are not less
important.

The foregoing considerations and reasons lead to the conclusion
that the present dispute is a dispute as envisaged in Article 7 of
the Mandate and that the Third Preliminary Objection must be
dismissed.

*
* *

The Court will now consider the Fourth and last Preliminary
Objection raised by the Respondent. In essence it consists of the
proposition that if it is a dispute within the meaning of Article 7,
it is not one which cannot be settled by negotiation with the Appli-
cants and that there have been no such negotiations with a view
to its settlement. The Applicants’ reply is to the effect that repeated
negotiations have taken place over a period of more than ten years
between them and the other Members of the United Nations holding
the same views as they, on the one hand, and the Respondent, on
the other, in the Assembly and various organs of the United Nations,
and that each time the negotiations reached a deadlock, due to
the conditions and restrictions the Respondent placed upon them.
The question to consider, therefore, is: What are the chances of
success of further negotiations between the Parties in the present
cases for reaching a settlement?

In considering the question, it is to be noted, first, that the alleged
impossibility of settling the dispute obviously could only refer to
the time when the Applications were filed. In the second place, it

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345 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

should be pointed out that behind the present dispute there is
another and similar disagreement on points of law and fact—a
similar conflict of legal views and interests— between the Respondent
on the one hand, and the other Members of the United Nations,
holding identical views with the Applicants, on the other hand.
But though the dispute in the United Nations and the one now
before the Court may be regarded as two different disputes, the
questions at issue are identical. Even a cursory examination of the
views, propositions and arguments consistently maintained by the
two opposing sides, shows that an impasse was reached before
4 November 1960 when the Applications in the instant cases were
filed, and that the impasse continues to exist. The actual situation
appears from a letter of 25 March 1954 from the Permanent Repre-
sentative of the Union of South Africa to the Chairman of the
Committee on South West Africa:

“As the terms of reference of your Committee appear to be even
more inflexible than those of the Ad Hoc Committee the Union
Government are doubtful whether there is any hope that new
negotiations within the scope of your Committee’s terms of reference
will lead to any positive results.”

This situation remains unchanged as appears clearly from subse-
quent communications addressed to the Chairman of the Committee
on South West Africa on 21 May 1955 and 21 April 1956.

It is immaterial and unnecessary to enquire what the different
and opposing views were which brought about the deadlock in the
past negotiations in the United Nations, since the present phase
calls for determination of only the question of jurisdiction. The fact
that a deadlock was reached in the collective negotiations in the
past and the further fact that both the written pleadings and oral
arguments of the Parties in the present proceedings have clearly
confirmed the continuance of this deadlock, compel a conclusion
that no reasonable probability exists that further negotiations would
lead to a settlement.

In this respect it is relevant to cite a passage from the Judgment
of the Permanent Court in the case of the Mavrommatis Palestine
Concessions (P.C.I.J., Ser. A, No. 2, p. 13) which supports the
view stated. The Court said in respect of a similar objection advanced
by the Respondent in that case to the compulsory jurisdiction
under Article 26 of the Palestine Mandate, which corresponds to
Article 7 of the Mandate for South West Africa:

“The true value of this objection will readily be seen if it be re-
membered that the question of the importance and chances of
success of diplomatic negotiations is essentially a relative one.
Negotiations do not of necessity always presuppose a more or less
lengthy series of notes and despatches; it may suffice that a discussion
should have been commenced, and this discussion may have been
very short; this will be the case if a deadlock is reached, or if finally

30
346 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

a point.is reached at which one of the Parties definitely declares
himself unable, or refuses, to give way, and there can be therefore
no doubt that the dispute cannot be settled by diplomatic negotia-
tion.

But it is equally true that if the diplomatic negotiations between
the Governments commence at a point where the previous discus-
sions left off, it may well happen that the nature of the latter was
such as to render superfluous renewed discussion of.the opposing
contentions in which the dispute originated. No general and ab-
solute rule can be laid down in this respect. It is a matter for con-
sideration in each case.”

Now in the present cases, it is evident that a deadlock on the
issues of the dispute was reached and has remained since, and that
no modification of the respective contentions has taken place since
the discussions and negotiations in the United Nations. It is equally
evident that “there can be no doubt’’, in the words of the Permanent
Court, “that the dispute cannot be settled by diplomatic negotia-
tion”, and that it would be “‘superfluous’’ to undertake renewed
discussions.

It is, however, further contended by the Respondent that the
collective negotiations in the United Nations are one thing and
direct negotiations between it and the Applicants are another, and
that no such direct negotiations have ever been undertaken by
them. But in this respect it is not so much the form of negotiation
that matters as the attitude and views of the Parties on the substan-
tive issues of the question involved. So long as both sides remain
adamant, and this is obvious even from their oral presentations
before the Court, there is no reason to think that the dispute can
be settled by further negotiations between the Parties.

Moreover, diplomacy by conference or parliamentary diplomacy
has come to be recognized in the past four or five decades as one
of the established modes of international negotiation. In cases
where the disputed questions are of common interest to a group of
States on one side or the other in an organized body, parliamentary
or conference diplomacy has often been found to be the most
practical form of negotiation. The number of parties to one side
or the other of a dispute is of no importance; it depends upon the
nature of the question at issue. If it is one of mutual interest to
many States, whether in an organized body or not, there is no
reason why each of them should go through the formality and
pretence of direct negotiation with the common adversary State
after they have already fully participated in the collective negotia-
tions with the same State in opposition.

For the reasons stated above, the Fourth Objection like the
preceding three Objections is not well-founded and should also be
dismissed.

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347 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

*
* *

The Court concludes that Article 7 of the Mandate is a treaty or
convention still in force within the meaning of Article 37 of the
Statute of the Court and that the dispute is one which is envisaged
in the said Article 7 and cannot be settled by negotiation. Conse-
quently the Court is competent to hear the dispute on the merits.

For these reasons,

THE Court,

by eight votes to seven,

finds that it has jurisdiction to adjudicate upon the merits of the
dispute.

Done in English and in French, the English text being authori-
tative, at the Peace Palace, The Hague, this twenty-first day of
December, one thousand nine hundred and sixty-two, 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) B. WiNIARSKI,
President.

(Signed) GARNIER-COIGNET,
Registrar.

Judge SprropouLos makes the following declaration:

Although the interest of the Governments of Liberia and Ethiopia
that the Court should pass upon the violations by South Africa of
the Mandate for South West Africa alleged by those Governments
is entirely comprehensible, it is not possible for me to follow the
reasoning of the Court which leads it to hold that it has jurisdiction.

Can it readily be found that the Mandate is a “‘treaty or conven-
tion” within the meaning of Article 37 of the Statute of the Inter-
national Court of Justice; that the Mandate, as a “‘treaty’’, survived
the collapse of the League of Nations (of which the formal act of
“dissolution” of the League of Nations was the result); that
Article 7 of the Mandate—assuming the Mandate to be in force—-

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348 SOUTH WEST AFRICA CASES (JUDGMENT 21 XII 62)

can be relied on by States none of which is a ““Member of the
League of Nations’, that organization no longer being in existence?

It appears to me that any attempt to give an affirmative answer
to these questions, and they are not the only ones which arise, must
necessarily be based on arguments which, from the standpoint of
law, do not seem to me to have sufficient weight.

In these circumstances it is not possible for me to concur in the
Court’s conclusion. To be upheld, the Court’s jurisdiction must be
very clearly and unequivocally established, and that does not seem
to me to be the case here.

Judges BusTAMANTE Y RIVERO and JEssup and Judge ad hoc
Sir Louis MBANEFO append to the Judgment of the Court statements
of their Separate Opinions.

President WINIARSKI and Judge BASDEVANT append to the Judg-
ment of the Court statements of their Dissenting Opinions; Judges
Sir Percy SPENDER and Sir Gerald FITZMAURICE append to the
Judgment of the Court a statement of their Joint Dissenting
Opinion; Judge MorELLI and Judge ad hoc VAN Wyk append to
the Judgment of the Court statements of their Dissenting Opinions.

(Initialled) B. W.
(Initialled) G.-C.

33