443

DISSENTING OPINION OF JUDGE PADILLA NERVO

I voted against the decision of the Court because I am convinced that
it has been established beyond any doubt, that the Applicants have a
substantive right and a legal interest in the subject-matter of their claim;
the performance by the Mandatory of the sacred trust of civilization,
by complying with the obligations stated in Article 22 of the Covenant
of the League of Nations; and in the Mandate for German South
West Africa.

Furthermore, the Applicants, by virtue of Article 7 of the Mandate
(an instrument which is “a treaty or convention in force”, within the
meaning of Article 37 of the Statute), have a right to submit their dispute
with the Respondent, to this International Court of Justice.

The present case is not an ordinary one, it is a sui generis case with
far-reaching implications of juridical, social and political nature. It has
been, since its inception, a complex, difficult and controversial one, as
can be seen, by the fact that the present decision of the Court, to which
Ï am in fundamental disagreement, rests on a technical or statutory
majority, resulting from the exercise by the President of his prevailing
vote, in accordance with paragraph 2 of Article 55 of the Statute of the
Court, which reads:

“1. All questions shall be decided by a majority of the Judges
present.

2. In the event of an equality of votes, the President or the Judge
who acts in his place, shall have a casting vote.” (Italics added.)

The Court has dealt with one single question, namely: Have the Appli-
cants a legal interest in the subject-matter of the claim? Upon this the
Court has found—

“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. For these reasons, the Court decides to reject
the claims of the Empire of Ethiopia and the Republic of Liberia.”

The Court, in my view, has been able to do that from an unwarranted
assumption of the presumed intentions of the framers of the Covenant
and the mandates system in 1919, and from an analysis and inter-
pretation of such instruments consequent with the particular assumption,
which serves as basis or premise of the Court’s analysis and reasoning.
This process, has accordingly led the Court to its present decision.

441
444 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

The Court answered that question in due application of paragraph 2
of Article 55. In consequence, the Court’s present decision states the
reasons and arguments, in view of which, it finds that the Applicants
do not have a substantive right or legal interest in the claim.

Since [ hold that the Court has jurisdiction to pass on the merits of
the Applicants’ claim and that the claim is admissible because the
Applicants have the legal interest and other qualifications entitling them
to recover judgment on those claims, I am bound to express my opinion
on the issues raised by the Parties’ submissions.

As an introduction to my reasons for disagreeing with the Court’s
decision, I will make some observations regarding the characteristics of
the Covenant of the League of Nations, the nature and implications of
the sacred trust, established by Article 22, and the significance and
purpose of the mandates system.

I will start by quoting the Parties’ submissions, which have been
presented, explained and developed through such a long period of time,
effort and expense, in the written and oral proceedings.

In the oral proceedings, the following final submissions were presented
by the Parties:

On behalf of the Governments of Ethiapia and Liberia, at the hearing
on 19 May 1965:

“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 Decem-
ber 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 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 Respondent has the duty forth-
with to cease the practice of apartheid in the Territory;

442
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SOUTH WEST AFRICA (DIss. OP. PADILLA NERVO)

(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 inter-
national standards or international legal norm, or both, 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 Article 2 of the
Mandate and Article 22 of the Covenant; and that Respondent 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 Terri-
tory, 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 Terri-
tory; and that Respondent has the duty to refrain from the establish-
ing of military bases within the Territory;

(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 obligations 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 à 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

1 Italics added.

443
446 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

of the United Nations is a necessary prerequisite and condition
precedent to attempts on the part of Respondent, directly or in-
directly, 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:

“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
Respondent’s pleadings and the oral proceedings, may it please the
Court to adjudge and declare that the submissions of the Govern-
ments of Ethiopia 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 dissolution 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 supervision by any organ of
the United Nations or any other organization or body. Respon-
dent is therefore under no obligation to submit reports con-
cerning 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.”

*
* *

444
447 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

The majority of the Court is reproducing on the present occasion the
arguments adduced in dissenting opinions against the Judgment of 1962.

In my view the Court has been able to arrive at its conclusion by
assuming, beforehand, the correctness of its interpretation of Article 7 (2)
of the Mandate for German South West Africa, which is the main basis
of its reasoning.

The questions raised by the Parties’ submissions in the present
proceedings (relevant to the Court’s present decision) are in fact a
repetition of the submissions presented by the Parties in 1962 (South
West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962,
pp. 322-328).

Those questions have been already decided by the Court in its 1962
Judgment and, among them, those regarding the Applicants’ locus standi
and the admissibility of their claim.

On page 328, the Court then said:

“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.”

Such Preliminary Objections read as follows (ibid., p. 326):

“On behalf of the Government of South Africa, in the Preliminary
Objections:

‘For all or any of the reasons set out in these Preliminary Ob-
jections, 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 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 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.’ ”

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:

445
448 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

‘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 conven-
tion 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 Government
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 Go-
vernments of Ethiopia and/or Liberia or of their nationals are in-
volved 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 respective 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

446
449 SOUTH WEST AFRICA (DISS. OP, PADILLA NERVO)

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

After due consideration of the issues involved, the Court in its 1962
Judgment, rejected the four Preliminary Objections and decided that:

(1) the Applicants have locus standi;

(2) the Applicants were Members of the League and could then and
can now invoke the jurisdiction of the International Court of Justice
in accordance with Article 37 of the Statute;

(3) a dispute, as envisaged in Article 7 of the Mandate, does exist
between the Parties;
(4) the dispute cannot be settled by negotiation.

In respect to the Respondent’s contention: that the dispute brought
before the Court by the Applicants does not affect any material interest
of the Applicant States or their nationals, and their further contention
that the League Members have no legal right or interest in the observance
by the Mandatory of its duties to the inhabitants; the Court then said:

“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 Mandatory
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 ambi-
guity 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 provis-
ions, 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,

447
450 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

and toward the League of Nations and its Members.” (South West
Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962,
p. 343.)

Such was the analysis made by the Court in its 1962 Judgment, of the
relevant texts of the Mandate, regarding, in particular, the wording of
Article 7 and the meaning of the term: “the provisions . . .”

Now the Court’s majority makes a contrary interpretation, and for the
purpose of its argument, artificially divides the “provisions” in the
Mandate into two different categories, with different effects and impli-
cations, in support of its argument.

The Court now asserts that there are on the one hand, what it calls
“conduct of the Mandate” provisions; and on the other hand “special
interest” provisions. (This is also the Respondent’s contention.)

I believe that such classification and the meaning and function given to
it, does not follow from the letter or the spirit of the Mandate; and that
the Court’s interpretation in 1962 is the correct one.

Those mentioned above were, among others, the main findings of
the Court in 1962. The considerations and reasons for its findings are
summarized in the following statements, contained in the Court’s
Judgment (ibid., pp. 328-347), which in my opinion, should have been
confirmed by the Court today if it had decided, in relation to the merits,
to examine the Applicants’ claim and to adjudicate on the Parties’
submissions; after having heard the Parties on all the elements involved,
as indeed it did.

Such statements assert that:

(a) the Applicants do have locus standi;

(b) the Court has jurisdiction to hear and adjudicate the question of
law and fact, raised by the Applicants;

(c) the Mandate is a “treaty or convention in force” within the meaning
of Article 37 of the Statute. It is an international agreement, having
that character;

(d) a dispute exists between the Parties before the Court, constituted by
their opposing attitude relating to the performance of the obligations
of the Mandate (ibid., p. 328);

(e) the Mandate is an international instrument of an institutional
character (ibid., p. 332);

(f) the authority which the Respondent exercises over South West
Africa is based on the Mandate. If the Mandate lapsed, so did the
Respondent’s authority. To retain rights and deny obligations, is
not justified (international Status of South West Africa, Advisory
Opinion, I.C.J. Reports 1950; South West Africa, Preliminary
Objections, Judgment, I.C.J. Reports 1962, p. 333);

(g) the obligation to submit to international supervision, is of the very
essence of the Mandate and cannot be excluded;

448
451
(h)

SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

the Union of South Africa is under an obligation to accept the
compulsory jurisdiction of the Court, according to Article 37 of the
Statute and Article 80 (1) of the Charter (International Status of
South West Africa, Advisory Opinion, I.C.J. Reports 1950);

(i) the finding that Article 7 is “still in force”, was unanimous in 1950

(j)

(k)

and continues to reflect the Court’s Opinion in 1962 (South West
Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962,
p. 334);

the obligation to submit to compulsory jurisdiction was effectively
transferred to the International Court before the dissolution of the
League;

the Mandate as a whole, including of course Article 7, is still in
force (ibid., p. 335);

(1) judicial protection of the “sacred trust” was an essential feature

of the mandates system, the duty and right of insuring the perfor-
mance of this trust was given to the League, its organs and all its
Members;

(m) in the event of a veto by the Mandatory under the unanimity rule

(n)

(0)

(p)

(q)

(r)
(s)
(t)

(u)
449

(Articles 4 and 5, Covenant), the only course left to defend the inter-
ests of the inhabitants would be to obtain adjudication by the Court
(ibid., p. 337);

as 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 to the Permanent Court for adjudi-
cation. Article 7 played an essential part as one of the securities in
the mandates system (ibid., p. 337);

the right to implead the Mandatory before the Permanent Court,
was specially and expressly conferred on the Members of the
League because it was the most reliable procedure of ensuring
protection;

the clear and precise language of Article 7 refers to any dispute
relating to “the provisions”, meaning all or any provisions (ibid.,
p. 343);

the scope and purport of Article 7 indicate that the Members of the
League were understood to have a legal right or interest in the
observance of the Mandatory’s obligations towards the inhabitants
of the territory (ibid., p. 343);

article 7 is clearly in the nature of implementing one of the “se-
curities for the performance of this trust”, mentioned in Article
22 (1);

the present dispute is a dispute as envisaged in Article 7;
repeated negotiations over a period of more than ten years, in the
General Assembly and other organs of the United Nations had
reached a deadlock before 4 November 1960 and the impasse
continues to exist. No reasonable probability exists that further
negotiations would lead to a settlement;

diplomacy by conference or parliamentary diplomacy, has come
452 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

to be recognized as one of the established modes of international
negotiation, and 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, it has often been found to be the most practical form of
negotiation. If the question at issue is one of mutual interest to
many States, 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 participated in the collective ne-
gotiation with the same State in opposition;

(v) the Court concludes that Article 7 is a treaty or convention still in
force and that the dispute cannot be settled by negotiation. Con-
sequently, the Court is competent to hear the dispute on the merits
(ibid., p. 347).

* * *

In the present proceedings, the Court has jurisdiction to adjudicate
upon the merits of the dispute (South West Africa, Preliminary Objections,
Judgment, I.C.J. Reports 1962, p. 347).

The merits of the dispute have been presented and developed before
the Court through the written and oral arguments of the Parties to the
present case.

Much time, effort and expense have been used in these pleadings, and
the Court is acquainted with all the necessary elements to form a con-
sidered opinion and to pass on the merits of the Applicants’ claim.

This, in my opinion, the Court should have done, and the majority
should not have limited and restricted the whole field of these contentious
proceedings on the merits to the narrow point of the question regarding
legal interest or substantive right.

It cannot be ignored that the status of the mandated territory of
South West Africa is the most explosive international issue of the post-
war world; and the question whether the official policy of “apartheid”
as practised in the Territory, is or is not compatible with the principles
and legal provisions stated in the Covenant, in the Mandate and in the
Charter of the United Nations, begs an answer by the Court which, at
the present stage, is dealing with the merits of the case.

During these proceedings of exceptionally long duration, the Court
has been hearing and examining the arguments of the opposing Parties
in support of their respective submissions, requesting the Court to adjudge
and declare upon them. Nevertheless, the majority of the Court has
deemed fit and proper not to do this, thus rendering it unnecessary for
it to pass on the main issues on the ground 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”.

I disagree—as I said before—with this finding of the Court which,
in my opinion, is unjustified. This point was not in issue in the proceedings
at the present stage; the question of the legal right or interest of the
Applicants was already decided by this Court—expressly or by impli-
cation—in its 1962 Judgment.

450
453 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

I believe that the Applicants’ legal interest in the performance by the
Mandatory of its obligations under the Mandate derives not only from
the spirit, but from the very terms of the Covenant and the Mandate,
and is clearly expressed in Article 7 (2).

The Court now decided to examine first the questions which it con-
sidered of antecedent and fundamental character, “tin the sense that a
decision respecting any of them might render unnecessary an enquiry
into other aspects of the case”.

I cannot agree with the Court in the assertion that: “it became the
Court’s duty” to follow that course; because such course unavoidably
prevented adjudication in respect to the main issues of the official policy
of apartheid and the compliance with the obligations stated in the Cove-
nant and in Article 2 (2) of the Mandate. In my opinion, the duty of the
Court was to adjudicate on such main issues,

THE COVENANT

The Covenant is in the nature of a constitutional legal instrument,
which is the source of rights and obligations relating to the system of
mandates, and to the securities and safeguards for the performance
of the sacred trust.

The principle proclaimed in Article 22 and its provisions, are binding
on the Members of the League, which were willing to accept the tutelage
and exercise it as mandatories on behalf of the League, in the interest
of the indigenous population.

The Council of the League defined the degree of authority, control,
or administration to be exercised by the Mandatory for South West
Africa, in the terms that the Principal Allied and Associated Powers
did propose that the Mandate should be formulated.

The purpose of the Mandate for South West Africa—in the terms
defined by the Council—is to give practical effect to the principle of the
sacred trust of civilization. The Mandate is the “method” chosen by the
Allied and Associated Powers to accomplish that end.

The legal obligations stated in the Covenant were translated and
spelled out in the specific case of each mandate, “‘according to the stage
of development of the people, the geographical situation of the territory,
its economic conditions and other similar circumstances”’.

All mandates—regardless of their differences in character—had a
common denominator; all were established for the same reason, and with
the object and purpose of giving practical effect, to the principle that the
well-being and development of the peoples inhabiting the territories
concerned, form a sacred trust of civilization.

The sacred trust is not only a moral idea, it has also a legal character
and significance; it is in fact a legal principle. This concept was incor-
porated into the Covenant after long and difficult negotiations between
the parties over the settlement of the colonial issue.

451
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SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

It has been observed in that respect that:

“It was clearly understood by all concerned that what was in-
volved was the adoption, with respect to the treatment of indigenous
peoples in certain areas of Africa and Asia, of a principle entirely
different from that in effect until then. The new principle was that, as
a matter of international law, the well-being and social progress
of such peoples would be the responsibility of the ‘organized inter-
national community’, insured by legal, rather than by solely moral,
considerations.”

THE MANDATES SYSTEM

The Court gives the following account on this question:

452

“Inasmuch as the grounds on which the Preliminary Objections
rely are generally connected with the interpretation of the Mandate
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 1919,
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 recognition of certain rights of the peoples of the underdeveloped
territories; the establishment of a régime of tutelage for each of such
peoples to be exercised by an advanced nation as a ‘Mandatory’
‘on behalf of the League of Nations’; and the recognition of ‘a
sacred trust of civilization’ laid upon the League as an organized
international community and upon its Member States. This system
is dedicated to the avowed object of promoting the well-being and
development of the peoples concerned and is fortified by setting
up safeguards for the protection of their rights.

These features are inherent in the Mandates System as conceived
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
455 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

have their foundation in the obligations of the Mandatory and they
are, so to speak, mere tools given to enable it to fulfil its obligations.
The fact is that each Mandate under the Mandate 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.” (South West Africa, Preliminary
Objections, Judgment, I.C.J. Reports 1962, p. 328.)

THE PRINCIPLE OF NON-DISCRIMINATION

The United Nations and the General Assembly were entrusted with
special tasks under the Charter of the United Nations and, among
other tasks, to “encourage and promote respect for human rights and
for fundamental freedoms for all, without distinction as to race... etc.”
—Article 76 (c), Article 1 (3). The General Assembly has competence
in respect of the interpretation of the Charter, and power to enact
recommendations—regarding racial discrimination—which have evolved
as principles or standards of general international acceptance.

The principle of non-discrimination on account of race or colour
has a great impact in the maintenance of international peace, and the
Organization has the duty to ensure that all States—even those which
are not Members—shall act, in accordance with the principles of Article 2
of the Charter, in the pursuit of the purposes stated in Article 1—
among them—to promote and encourage respect for human rights
and fundamental freedoms for all, without racial discrimination (Ar-
ticle 1 (3)).

SIGNIFICANCE OF THE RECOMMENDATIONS OF THE GENERAL ASSEMBLY

Nobody would dispute the powers of the General Assembly to discuss
these matters, like racial discrimination, in general, but especially when
it occurs in a mandated territory which has an international status, and
is an institution or régime of its concern.

The International Court is guided by its Statute and its Rules, but
even the Court’s functions and powers may be discussed by the General
Assembly, which may make recommendations (to the United Nations
Members) in respect to them, and propose or evolve additional sub-
sidiary means, which the Court should apply for the determination of
rules of law. ;

The numerous and almost unanimous recommendations regarding
“apartheid” and racial discrimination, are made to the Members of
the United Nations and not to the members of the Court, but the Court
cannot overlook or minimize their overriding importance and relevance
in these particular cases. Those recommendations might be considered,

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in fact, as a manifestation of some of the directives that the Court
should apply, in accordance with Article 38, in the performance of its
function.

An important question in the present cases is whether or not the
road we follow leads us to a conclusion which is just, fair and capable
of contributing to the maintenance of world peace. Such a conclusion
cannot run contrary to the essential principles of the mandates system
or those of the trusteeship system, and should be in harmony with
world opinion and the constitutional practice of States regarding racial
discrimination, human rights and fundamental freedoms. These declara-
tions are guides of conduct and rules, having their rightful source in
the Charter and in the binding decisions, on all Member States, ema-
nating from the General Assembly and other organs of the United
Nations.

There were times when certain words and their obvious or hidden
meanings were taboo for the common man and abhorrent to the legal
mind; but wise men made from those revolutionary concepts, universally
accepted principles: “Liberté, Egalité, Fraternité”; “The Government
of the people, for the people, by the people’”’.

Constitutional instruments, like the Constitution of the United States,
which were proclaimed “in the name of the people”, were received at
the time with ironical surprise in certain parts of the civilized world.
One century and 70 years later, the Charter of San Francisco began:
“We the peoples of the United Nations determined ...”

All these considerations do not run counter to the main task of the
Court to “declare” the law. They are in fact—T believe—expressed or
implied in the juridical and learned reasoning and decisions given in
the Opinions of 1950 and 1956, and in the Judgment pronounced by
this Court in 1962.

This idea of concern for the people, for the recognition of the role
of the common man, and especially for the peoples “not yet able to
stand for themselves under the strenuous conditions of the modern
world”, was the one that moved the authors of the Covenant and is at
the roots of the Mandate.

For the interpretation of the Mandate according to its spirit and its
letter, the dissolution or liquidation of the League is not of permanent
importance, since the Mandate did survive and is in existence. But for a
just interpretation of its terms and spirit, it is important to keep in mind
that such interpretation is being made today; that this Court is sitting
in 1966 and not in 1920, and that the international community of today,
the United Nations, has the right and the duty to see that the sacred
trust is performed. For that reason and to that effect, many resolu-
tions were adopted in the General Assembly, and are relevant and
of the greatest importance in the consideration of the South West Africa

cases.

Important also is the fact that the 1950 Opinion is the “law recognized
454
457 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

by the United Nations” + and the Respondent, as a member State, should
comply with it. The Court should not disregard such Opinion or the
pronouncements made in its 1962 Judgment. Nor should the Court
ignore that the Respondent is obliged to account and report to the
satisfaction of the supervisory organ, since “the securities for the
performance of the sacred trust of civilization, are the supervision and
control by the International Organization”’.

It is therefore in the exercise of its rights and duties that the General
Assembly, through its resolutions, has judged the application in the
mandated territory of the official policy of racial discrimination, and
recognized the rules and standards which the Mandatory by this policy
of apartheid contravenes, in violation of its obligations under the
Mandate, obligations which are not dormant at ail, but alive and in
action, as are equally well alive and not dormant the rights of the peoples
of the Territory who are the beneficiaries of such obligations.

No argument of strict, specific or classical law may justify a reversion
of the Judgment of 1962, or ignore the claims and hopes of public opinion
the world over, regarding respect for human rights and fundamental
freedoms for all, without racial discrimination.

A new order based on the proposition that “‘all men are by nature
equally free and independent”, has conquered solemn recognition in the
basic law of many nations and is today—in one form or another—
customary declaration, norm and standard in the constitutional practice
of States. “Equality before the law”, or in the words of the Charter:
“International cooperation in the promotion and respect of human
rights and fundamental freedoms for all without distinction as to
race...”

This fundamental resolve will inspire the vision and the conduct of
peoples the world over until the goal of self-determination and in-
dependence is reached.

THE 1950 ADVISORY OPINION AND THE 1962 JUDGMENT

The concepts expressed on the occasion of the 1950 Opinion are
fundamental for the consideration of the case in the present procedure.
The 1962 Judgment is based on this Opinion and the Court, in my view,
is bound to abide by the conclusions given in that Judgment in respect
to the legal interest of the Applicants and the admissibility of the
claim. Furthermore, the Court cannot ignore the conclusions arrived

1 After the 1950 Opinion had been accepted and approved by the General
Assembly it was the “law recognized by the United Nations”. (Judge Lauterpacht,
in Admissibility of Hearings of Petitioners by the Committee on South West Africa,
LCS. Reports 1956, p. 46.)

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458 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

at in its Advisory Opinions of 1950 and 1956, taking into account that:

“In exercising its discretion [to give an Advisory Opinion] the
International Court of Justice, like the Permanent Court of Inter-
national Justice, has always been guided by the principle which the
Permanent Court stated in the case concerning the Status of Eastern
Carelia” (Certain Expenses of the United Nations (Article 17,
paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962,
p. 155),

to the effect that:

“The Court, being a Court of Justice cannot, even in giving
advisory opinions, depart from the essential rules guiding their
activity as a Court.” (Status of Eastern Carelia, Advisory Opinion,
1923, P.C.I.J., Series B, No. 5, p. 29.)3

In order to omit quotations from the Court’s Opinions, while dealing
with particular issues, J will emphasize at the outset some of the points,
reasoning and conclusions of the Court in its 1950 Advisory Opinion
and in its 1962 Judgment, in which I find support for my own views.

*
* *

An international régime, the mandates system, was created by
Article 22 with a view to giving practical effect to the two principles of
(a) non-annexation, and (b) that the well-being and development of the
peoples inhabiting the mandated territories, not yet able to stand by
themselves, form “a sacred trust of civilization”.

The creation of this new international institution did not involve any
cession of territory or transfer of sovereignty, and the Union was to
exercise an international function of administration on behalf of the
League of Nations.

The Mandate was created in the interests of the inhabitants and of
humanity in general, as an international institution with an international
object—-a sacred trust of civilization.

The international rules regulating the Mandate constituted an inter-
national status for the territory.

The functions were of international character and their exercise,
therefore, was subjected to the supervision of the Council of the

1 Hammarskjeld, La juridiction internationale (Leyde, 1938), p. 289. He also
quoted from the report submitted by Judges Loder, Moore and Anzilotti, in 1927,
that the view that advisory opinions are not binding is more theoretical than real.
(Series E, No. 4, p. 76.) .

“Tn this connexion, it may be recalled that in using judicial decisions as a ‘source
of law’ by virtue of Article 38 (1) (d) of the Statute, no distinction at all is made
between judicial decisions given in the form of a judgment, and judicial decisions
given in the form of an advisory opinion. Recourse is equally had to both types
of judicial decision.” (Rosenne, The International Court of Justice, 1957, p. 493,
note 2.)

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459 SOUTH WEST AFRICA (DISS.’OP. PADILLA NERVO)

League of Nations and to the obligation to submit annual reports.

Obligations: (a) administration as a “sacred trust”; (b) machinery
for implementation, supervision and control as “securities for the
performance of this trust”. These obligations represent the very essence
of the ‘“‘sacred trust”. Their fulfilment could not be brought to an end,
nor the rights of the population with the liquidation of the League, as
they did not depend on the existence of the League.

The provisions of paragraph 2 of Article 80 of the Charter presuppose
that the rights of States and peoples shall not lapse automatically on the
dissolution of the League.

The resolution of the League’s Assembly of 18 April 1946 had to
recognize that the functions of the League terminated with its existence,
at the same time the Assembly recognized that Chapters XI, XII and
XIII of the Charter embodied the principles declared in Article 22 of
the Covenant of the League of Nations.

In paragraph 4 of that resolution, the Mandatory Powers recognized
that some time would lapse from the termination of the League to the
implementation of the trusteeship system, and assumed the obligation
to continue nevertheless, in the meantime, to administer the territories
under mandate, for the well-being of the peoples concerned, until other
arrangements have been agreed between them and the United Nations.

The Assembly understood that the mandates were to continue in
existence until “other arrangements” were established, concerning the
future status of the territory.

Maintaining the “status quo” meant: to administer the territory
as a sacred trust and to give account and report on the acts of ad-
ministration.

There are decisive reasons for an affirmative answer to the question
whether the supervisory functions of the League are to be exercised by
the new international organization created by this Charter.

The authors of the Covenant considered that the effective performance
of the sacred trust of civilization required that the administration
of the mandated territories should be subjected to international super-
vision.

The necessity for supervision continues to exist. It cannot be admitted
that the obligation to submit to supervision has disappeared, merely
because the supervisory organ under the mandates system has ceased to
exist, when the United Nations has another international organ per-
forming similar supervisory functions.

Article 80, paragraph 1, of the Charter, purports to safeguard the
rights of the peoples of mandated territories until trusteeship agreements
are concluded, but no such rights of the peoples could be effectively

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safeguarded without international supervision and a duty to render
reports to a supervisory organ.

The resolution of 18 April 1946 of the Assembly of the League pre-
supposes that the supervisory functions exercised by the League would
be taken over by the United Nations, and the General Assembly has the
competence derived from the provisions of Article 10 of the Charter,
and is legally qualified to exercise such supervisory functions.

On 31 January 1923 the Council of the League adopted certain rules
by which the mandatory governments were to transmit petitions. This
right which the inhabitants of South West Africa has thus acquired is
maintained by Article 80, paragraph 1, of the Charter.

The dispatch and examination of petitions form a part of the super-
vision, and petitions are to be transmitted by the Union Government
to the General Assembly, which is legally qualified to deal with them.

The Court was of the opinion that Article 7 of the Mandate is still
in force and that having regard to Article 37 of the Statute of the inter-
national Court and Article 80 (1) of the Charter, the Union Government
is under an obligation to accept the compulsory jurisdiction of the Court.

The Union has no competence to modify unilaterally the international
status of the territory, as is shown by Article 7 of the Mandate. The
competence to determine and modify the international status of South
West Africa rests with the Government of South Africa acting with the
consent of the United Nations.

I will now express my views on the points involved in what I believe
to be the main issues:

(a) that the Court has jurisdiction to adjudicate on the merits in the
present case;

(6) that the claims are admissible;

(c) that the Mandate did not lapse, is in existence and still in operation;

(d) that the decision of the 1962 Judgment, based on the 1950 and 1956
Advisory Opinions, is res judicata between the Parties, especially in
respect of jurisdiction and the survival of the Mandate, and that the
issue of the /ocus standi of the Applicants is also res judicata;

(e) that the Mandate is a “Treaty or Convention in force” within the
meaning of Article 37 of the Statute;

(f) that the Court—regardless of the question whether it is legally
bound by its previous judgments—has no grounds nor weighty
reasons to reconsider nor reverse the 1962 decision or to ignore the
moral, political and juridical authority of the 1950 and 1956 Ad-
visory Opinions;

(g) that the Mandatory has the obligation to make annual reports

458
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(h)

SOUTH WEST AFRICA (Iss. OP. PADILLA NERVO)

(Article 6), and transmit petitions, and submit to internationa

supervision ;

that the General Assembly, after the dissolution of the League, is
the supervisory organ with the functions formerly performed by the
Council of the League, and this by virtue of the powers given to the
General Assembly by Article 10 of the Charter, and in compliance
with Article 80 and the spirit of Article 76, and the resolution of
18 April 1946 of the Assembly of the League;

(i) that Articles 6 and 7 of the Mandate are in full force and should be

complied with, as being susceptible of performance toward the
United Nations, which now represents the “organized International
Community” created and intended to substitute the League of
Nations;

(j) that the trusteeship system is the modern version of the mandates

system, established with the purpose of maintaining the principles
of it, and to transform every mandate into a trust territory or an
independent State.

APPLICANTS’ LEGAL INTEREST

The Respondent’s contention that according to the wording in Ar-
ticle 7, paragraph 2, of the Mandate, the Applicants have not “locus standi”’,
because since the dissolution of the League there could no longer be
‘‘another Member of the League of Nations” today, was a contention
rejected by the Court in its 1962 Judgment. The Court said then in this
respect:

459

“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
Mandate was an essential feature of the Mandates System. The
essence of this system as conceived by its authors and embodied in
Article 22 of the Covenant of the League of Nations, ‘consisted,
as stated earlier, of two features: a Mandate conferred upon a
Power as ‘a sacred trust of civilization’ and the ‘securities for the
performance of this trust’. 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 deter-
mine any dispute within the meaning of Article 7 of the Mandate.
462 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

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.”

“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 is said further in the same Judgment:

“,.. the Court sees no valid ground for departing from the con-
clusion 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 continues
to exist for as long as the Respondent holds on to the right to
administer the territory under the Mandate.”

The Respondent, by virtue of its ratification of the United Nations
Charter since 7 November 1945, has been subjected to the obligations
and entitled to the rights thereunder, and is bound to accept the com-
pulsory jurisdiction of the International Court, to which it had originally
agreed to submit under Article 7 of the Mandate. Such obligation is
embodied in Article 37 of the Statute, which forms an integral part of the
Charter.

This transferred obligation was voluntarily assumed by the Respondent
when joining the United Nations. There can be no question of lack of
consent as regard this transfer of Respondent’s obligation to this Court,
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.

Paragraphs 2 and 3 of the last resolution of the League, adopted
unanimously on 18 April 1946, are in their letter and spirit principles
adopted by all Members of the United Nations as binding commitments
under the Charter.

The principle that ‘‘no interest no action”, does not necessarily mean
material” interest, and the argument that the Applicants cannot invoke

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the jurisdiction of the Court in a dispute with the Respondent, because
the said conflict or disagreement does not affect any material interest of
the Applicant States or their nationals, has no decisive weight.

When the Covenant and the Mandate were approved, the right of an
action before the Permanent Court was given to all Members of the
League, because they were understood to have an interest in the ob-
servance by the Mandatory of its obligations toward the inhabitants of
the territory and towards the Members of the League.

That interest was certainly far greater and superior to any material
interests of their own, and was the legal basis of their right of action.

The history of the Covenant and the mandates system, the purposes,
principles and conclusions embodied in them, give—in my view—solid
foundation for the opinions expressed in respect to the main issues.

The purposes and the acts which gave birth to the fact of the permanent
existence of the “sacred trust”, and the machinery for the security of
its performance, are of overriding importance, continuous existence and
permanent value.

The States Members of the United Nations, the General Assembly,
the Parties and the Court in last instance, are bound by their rules and
principles, which peoples and governments alike are obliged to respect
and to follow.

CONSIDERATIONS ON THE INTERPRETATION OF THE
COVENANT AND THE MANDATE

The interpretation of the Mandate and the obligations of the Respon-
dent, is to be made, taking into account, besides the text and spirit of
the relevant instruments, the circumstances existing now in 1966, not
only those which prevailed in 1920. The aims, the convictions, the needs
of the peoples and States for the maintenance of peace, in the closely
interdependent world of our days is, and should be a fundamental
consideration in the mind of this Court.

The world of 1920 is gone; but the status and régime that the framers
of the Covenant and the mandates system did establish, the international
institution they did create for the fulfilment of the “sacred trust of
civilization”, will continue to be alive as long as there exist, anywhere,
non-self-governing peoples, in need of the protection recognized and
granted by those instruments, almost half a century ago.

The world of today is far removed and different from the one of the
First World War. New interests, new needs and new laws, customs,
norms, and standards of international behaviour are being created by
the relentless forces of public opinion, in search of recognition by the

461
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legislative and judicial bodies all over the world; and are today pro-
claimed or enacted by peaceful and normal procedures, or put into
force by the sheer strength of peoples and States.

The statesmen, the jurists, legislators, and the courts of justice, they
all have to recognize the realities of today, for the sake of freedom, justice
and peace.

The Court is well aware of such realities and shall consider, in its
interpretation of the relevant international instruments and obligations,
the prevailing ideas and circumstances of today regarding human rights
and fundamental freedoms; as well as regarding the actual meaning
and universal recognition embodied now in the concepts “material and
moral well-being and social progress”, which is a dynamic concept.

The Court, in my opinion, is not limited by the strict enumeration of
Article 38, whose prescriptions it is free to interpret in accordance with
the constant evolution of the concepts of justice, principles of law and
teachings of publicists.

NORM AND STANDARD

Racial discrimination as a matter of official government policy is a
violation of a norm or rule or standard of the international community.

A norm of non-discrimination of universal application has been
drafted independently of the Mandate and which governs Article 2.

This is a problem, therefore, of the proper recognition and evaluation
of human rights and the impact of its observance on the peace of the
world.

This Court’s highest and most authoritative opinion on the principle
of non-discrimination on account of colour, will have a far-reaching
impact on the battle of the races or on their pacific co-existence.

It is not the juridical and learned legal opinion that matters only, but
the influence the Court will have on the behaviour of peoples and govern-
ments, all over the world. The consequences, in the short and long run,
place on the Court a tremendous burden, which cannot be lightened by
the most profound and logical legal examination of any one single
aspect of the case, excluding thereby to adjudicate on the fundamental
issues raised in the submissions of the Parties.

* * ok
The “tutelage” established by the Covenant was meant to endure as

long as the peoples concerned are—so to speak—under age. The sacred
trust of civilization is a legal principle and a mission, whose fulfilment

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was entrusted to more civilized nations until a gradual process of self-
determination makes the peoples of the mandated territories able to
“stand by themselves in the strenuous conditions of the modern world”.

The Mandatories have the duty, not only to “promote to the utmost
the well-being and development” of such peoples entrusted to their care,
but to do it by means and methods most likely to achieve that end, and
which do not—by their very nature—run contrary to the intended goal.
The Charter prescribes the roads which will lead to it; those of non-
discrimination and respect for human rights and fundamental freedoms,
among other ways and means which will help the peoples to overcome
the hardships and strains of our time.

The dissolution of the League took place after the States Members of
the United Nations had signed the San Francisco Charter and were
bound by it as parties in a treaty that prevails over all others which may
be incompatible with the Charter prescriptions (Article 103).

One of the main principles which informs and gives new spirit to an
international instrument like the Covenant, was the principle of non-
annexation, a noble idea to deter the military powers from taking
advantage of the war situation, or claiming, by right of conquest,
sovereignty and ownership over peoples and territories, formerly pawns
in the colonial system or the reward of victory or of superior strength.

The new concept of the ‘‘sacred trust of civilization’? created a new
sense of international responsibility, which requires consultation with
the peoples of the mandated territories and with the appropriate inter-
national organs, and to take into account their will and consent as a
sine qua non condition for effecting changes in the status of such terri-
tories.

These new ideas were intended to help in the organization of a new
world order, in which backward people, on all continents, would have
a chance to be free from the former traditional chains of slavery, forced
labour, and preys of greedy masters.

Those noble ideas, principles and concepts, embodied in the Covenant,
were not born to have a precarious or temporary existence, tied up
to the mortal fate of a particular forum or to an international organi-
zation immune to changes.

They were intended to survive and prevail to guide the political
conduct of governments and the moral behaviour of men. They were
meant to persist and endure no matter what new social structures or
juridical forms will evolve and change through the passing of time in
this ever-changing world.

The dissolution of the League was not the funeral of the principles
and obligations consigned in the Covenant and the Mandate; they are
alive and will continue to be alive.

The Mandate has not lapsed, but has been, is and will be in existence,

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as long as South West Africa is not placed under the trusteeship system
by agreement between the Republic of South Africa and the United
Nations; or until the time comes when the peoples of the Territory are
able to stand by themselves under the strenuous conditions of the world
of today, or eventually become an independent State.

These are, I believe, the only peaceable avenues which might lead to a
modification of the actual status of South West Africa.

* * *

The League of Nations was dissolved because the United Nations
had been established with a Charter which was an improvement on the
Covenant, whose essential principles and ideals were kept and embodied
in such Charter.

No time-limit was or could be established for the “sacred trust of
civilization”.

The counterpart of annexation was to place the territories under a
régime administered internationally.

The character of the Mandate and the power of administration given
to the Mandatory in Article 2 (1) of the Mandate, has its foundation
in the reasoning and considerations stated in paragraphs 3 and 6 of
Article 22 of the Covenant Paragraph 6 contains the following concepts:

“There are territories, such as South West Africa ... which,
owing to the sparseness of their population ... or their remoteness
from the centres of civilization, or their geographical contiguity
to the territory of the Mandatory ... can be best administered
under the laws of the Mandatory . . . subject to the safeguards above
mentioned in the interests of the indigenous population.”

Of no place in the world nowadays can one properly talk about
“their remoteness from the centres of civilization”. Now all countries
and peoples everywhere are near and neighbours to each other. Isolation
does not really exist unless imposed by force.

The sparseness of population is becoming everywhere a thing of the
past; the birth rate and the number of people cannot be measured by
the figures of 50 years ago. The earth has become more than ever a
melting-pot, crowded to overflowing and is subject to the everlasting
pressure and impact of dynamic cross-currents of interchanging of
peoples, cultures, ideas and reciprocal influences of all conceivable kinds.

Much can be said also of the number, location and identity of the
“centres of civilization” which the framers of Article 22 of the Covenant
had in mind.

So the discretion in the power of administration and legislation claimed
by the Mandatory was founded on reasons and circumstances which
half a century later have become and appear obsolete. They were intended
only to facilitate administration. (Article 2 (1) of the Mandate and
Article 22 (6) of the Covenant.) The exercise of such power was subject
to the obligations stated in the Covenant and in the Mandate. (Article 2
(2) among others.)

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467 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

Obviously the power of administration and legislation could not
be legitimately exercised by methods which run contrary to the aims,
principles and obligations stated in Article 22 of the Covenant, especially
in paragraphs 1, 2 and 6. Nor could be exercised today in violation of
the United Nations Charter’s provisions—among others—those regarding
respect for human rights and fundamental freedoms, or the prohibition
to discriminate on account of race or colour.

The assertion that “apartheid” is the only alternative to chaos, and
that the peoples of South West Africa are incapable of constituting a
political unity and be governed as a single State does not justify the
official policy of discrimination based on race, colour or membership
in a tribal group.

Paragraph 3 of Article 22 of the Covenant did not presuppose a static
condition of the peoples of the territories. Their stage of development
had to be transitory, and therefore the character of the Mandate, even
of a given mandate, could not be conceived as a static and frozen one;
it had to differ as the development of the people changed or passed from
one stage to another. Are the people of South West Africa in the same
stage of development as 50 years ago?

Are the economic conditions of the territory the same? Article 2 (2)
of the Mandate states:

“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.”

Even if the geographical situation is to be considered under the angle
of its remoteness from centres of civilization, and remoteness being a
relative term, can it be said that South West Africa is now as remote
as 50 years ago from centres of civilization?

I do not share the view that the Court, in the interpretation and
application of the provisions of the Mandate, is limited or restricted
in its jurisdiction to the narrow term of Article 7, paragraph 2, and has
not jurisdiction to consider the existence and applicability of a “norm”
and/or “standard” of international conduct of non-discrimination. In my
view the jurisdiction of the Court is not so limited or restricted.

The Court cannot be indifferent to the fact that the Mandate operates
under the conditions and circumstances of 1966, when the moral and
legal conscience of the world, and the acts, decisions and attitudes of the
organized international community, have created principles, and evolved
rules of law which in 1920 were not so developed, or did not have such
strong claims to recognition. The Court cannot ignore that “the principle
of non-discrimination has been recognized internationally in most
solemn form’ (Jenks).

Since the far away years of the drafting of the Mandate, the inter-

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national community has enacted important instruments which the Court,
of course, must keep in mind, the Charter of the United Nations, the
Constitution of the International Labour Organisation, the Universal
Declaration of Human Rights, the Declaration on Elimination of All
Forms of Racial Discrimination, and numerous resolutions of the
General Assembly and the Security Council, having all a bearing on the
present case for the interpretation and application of the provisions of
the Mandate. All these instruments confirm the obligation to promote
respect for human rights.

It has been said rather in soft terms, that “South African racial
segregation policies appear to be out of harmony with the obligation
under the Charter”.

All this must be taken into account by the Court in determining
whether it has been a breach of international law or of the obligation
of the Respondent under the Mandate, as interpreted by the Court.

There are cases where—in the absence of customary laws—it is
permissible to apply rules and standards arising from certain principles
of law above controversy. The principles enacted in the Charter of the
United Nations are—beyond dispute—of this nature.

The resolutions of the General Assembly are the consequence of the
universal recognition of the principles consecrated in the Charter and of
the international need to give those principles their intended and legiti-
mate application in the practices of States.

The Court, as an organ of the United Nations, is bound to observe
the provisions of the Charter regarding its “Purposes and Principles”,
which are of general application to the Organization as a whole and
hence to the Court, as one of the principal organs of the United Nations,
and whose Statute is an integral part of the Charter. As Rosenne re-

marks:

“In general it cannot be doubted that the mutual relations of the
principal organs ought to be based upon a general theory of co-
operation between them in the pursuit of the aims of the Organiza-
tion.”

And Judge Azevedo: “The General Assembly has retained a right to
watch over all matters concerning the United Nations.” It has also been
recognized that:

“The Court must co-operate in the attainment of the aims of the
Organization and strive to give effect to the decisions of other
principal organs, and not achieve results which would render them
nugatory.”

The question whether or not the Respondent has complied with its
obligations under Article 2 (2), is a sociological fact which has to be
measured and interpreted by the current principles, rules and standards
generally accepted by the overwhelming majority of States Members of

the United Nations, as they were continuously expressed, through a great
number of years, in the relevant resolutions and declarations of the

466
469 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

General Assembly and other organs of the international community, in
accordance with the binding treaty provisions of the Charter.

It might be said that the ultimate decision on this question is a political
one, to be evaluated by the General Assembly to whose satisfaction, as
today’s supervisory organ, the Mandatory has to administer the territory
having an international status. The Court, however, in my view, should
declare whether or not an official policy of racial discrimination is in
conformity with the provisions of the United Nations Charter, and in
harmony with principles of equality and non-discrimination based
on race or colour, proclaimed and accepted by the international com-
munity.

The arguments and evidence presented by the Respondent for the
purpose of attributing to the numerous resolutions on South West
Africa, adopted by the General Assembly during the past 20 years, a
political character and the claim that they have been politically inspired,
do in fact emphasize the duty of the Court to give weight and authority
to those resolutions of the General Assembly, as a source of rules and
standards of general acceptance by the States Members of the Inter-
national Organization.

The Court should also recognize those decisions as embodying reason-
able and just interpretations of the Charter, from which has evolved
international legal norms and/or standards, prohibiting racial discrimi-
nation and disregard for human rights and fundamental freedoms.

Many of the activities of the General Assembly and the Security
Council—among them, those relating to the problem of South West
Africa—are in the nature of political events concerned with the mainten-
ance of international peace, which is also the concern of the Court, whose
task is the pacific settlement of international disputes.

From those activities and under the impact of political factors, new
legal norms or standards emerge.

Examining the close interrelation between the political and legal
factors in the development of every branch of international law, Profes-
sor Rosenne makes some observations and comments which I consider
pertinent to quote:

“That interrelation explains the keenness with which elections of
Members of the Court are conducted ... But that interrelation
goes further. It explains the conflict of ideologies prevalent today
regarding the Court.” (Rosenne, The Law and Practice of the Inter-
national Court, Vol. I, p. 4.)

“The Charter of the United Nations and the urgency of current
international problems and aspirations have turned the course of
the Organized International Society into new directions ... The
intellectual atmosphere in which the application today of inter-
national law is called, has changed, and with it the character of the

467
470 SOUTH WEST AFRICA (DISS. OP, PADILLA NERVO)

>

Court, as the Organ for applying international law, is changing too.’
(bid., pp. 5-6.)

Rosenne remarks also that the full impact upon the Court of those
changes is found in the activities of the General Assembly and the
Security Council.

Whatever conclusions one might draw from these activities, it is
evident that their far-reaching significance is the fact that the struggle
towards ending colonialism and racism in Africa, and everywhere, is the
overwhelming will of the international community of our days.

The Court, in my view, should take into consideration that consensus
of opinion.

The General Assembly, as a principal organ of the United Nations,
empowered to “discuss any questions or any matters within the scope
of the present Charter” (Article 10), especially those questions “relating
to the maintenance of international peace” (Article 11), and to “recom-
mend measures for the adjustment of any situation resulting from a
violation of the provisions of the Charter, setting forth the purposes
and principles of the United Nations”, has enacted, with respect to the
situation in South West Africa, numerous resolutions—in the legal
exercise of such functions and powers—resolutions which have the
character of rules of conduct, standards or norms of general acceptance,
condemning “racial discrimination” and violations of “human rights and
fundamental freedoms”, as contrary to the Charter, the Covenant and
the Mandate.

There is no principle of general international law which could be validly
invoked to contradict, or destroy, the essential purpose and the funda-
mental sources of the legal obligations rooted in the very existence of the
Covenant, the mandates system and the Charter of the United Nations.

The resolutions of the General Assembly adopted before 1960, when
the Application was made, are an almost unanimous expression of the
conviction of States against the official policy of apartheid as practised
in the mandated territory of South West Africa.

* * *

In conclusion I must repeat that-—since [ am in agreement with the
findings of the Court in its 1950 Advisory Opinion and with the judgment
rendered in 1962—I believe that some of the points of law raised in
some of the main submissions of the Parties in the present procedures,
have already been decided by the findings of the Court on such occasions
and that they should have been confirmed if the majority of the Court
today would have dealt with them.

There is no question in my mind that the Court’s former interpretation
of the relevant instruments, its conclusions in law and its reasoning, are
beyond reproach from the point of view of a sound application of the
legal principles involved therein.

468
471 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

It was held at that time that:

South West Africa is a territory under international mandate;

Respondent continues to have the international obligations stated in the
Covenant and in the Mandate;

the Mandate is a treaty or convention in force within the meaning of
Article 37 of the Statute;

Respondent is under an obligation to submit to the supervision of the
General Assembly with regard to the exercise of the Mandate;

Respondent remains subject to the obligations to render to the United
Nations annual reports and to transmit petitions from the inhabitants
of the territory;

the dispute is one which is envisaged in Article 7 and cannot be settled
by negotiation;

the Court has jurisdiction to adjudicate upon the merits of the dispute;

Respondent acting alone has not the competence to modify the inter-
national status of the territory of South West Africa; it needs the
consent of the United Nations;

the Members of the League were understood to have a legal right or
‘interest in the observance by the Mandatory of its obligations towards
the inhabitants of the territory.

*
* *

The Court now considers that there are in the present case two fun-
damental questions which have an antecedent character:

(a) whether the Mandate still exists, and
(b) whether the Applicants have a legal right or interest in the subject-
matter of the claims.

I said at the outset of this dissenting opinion that J cannot agree with
the decision of the Court. I disagree also with its reasoning and its
actual interpretation of the provisions of the Mandate.

It appears conclusive to me that in 1950 and 1962 the question of the
legal interest of any Member of the League of Nations in the conduct
of the Mandate was determined by the Court in holding that they had
the right to invoke the compromissory clause against the Mandatory.

Several Members of the Court in 1950 and in 1962, in their separate
opinions, then expressed their considered views on this question, as
follows:

Judge Sir Arnold McNair said:

“Although there is no longer any League to supervise the exercise
of the Mandate, it would be an error to think that there is no control
over the Mandatory. Every State which was a Member of the
League at the time of its dissolution still has a legal interest in the
proper exercise of the Mandate. The Mandate provides two kinds
of machinery for its supervision—judicial, by means of the right
of any Member of the League under Article 7 to bring the Mandatory

469
472 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

compulsorily before the Permanent Court, and administrative, by
means of annual reports and their examination by the Permanent
Mandates Commission of the League.” (/nternational Status of South
West Africa, Advisory Opinion, ILC.J. Reports 1950, p. 158.)

Judge Read stated:

“Each Member of the League had a legal interest, vis-a-vis the
Mandatory Power, in matters ‘relating to the interpretation or the
application of the provisions of the Mandate’; and had a legal
right to assert its interest against the Union by invoking the com-
pulsory jurisdiction of the Permanent Court (Article 7 of the
Mandate Agreement). Further, each Member, at the time of disso-
lution, had substantive legal rights against the Union in respect of
the Mandate.”

,... I regard as significant the survival of the rights and legal
interests of the Members of the League; ... the same reasons
which justify the conclusion that the Mandate and the obligations
of the Union were not brought to an end by the dissolution of the
League, lead inevitably to the conclusion that the legal rights and
interests of the Members, under the Mandate, survived. If the
obligations of the Union, one of the ‘Mandatories on behalf of
the League’, continued, the legal rights and interests of the Members
of the League must, by parity of reasoning, have been maintained.”

(ibid., pp. 165, 166.)

Judge Bustamante said:

“|... Member States, as integral parts of the League itself, have
possessed a direct legal interest in the protection of underdeveloped
peoples. It is no doubt on the basis of these principles that the
Mandate Agreement, in its Article 7, conferred upon Member
States, in their individual capacity, the right to invoke the com-
promissory clause to require of the Mandatory a correct application
of the Mandate.” (South West Africa, Preliminary Objections,
Judgment, [.C.J. Reports 1962, p. 380.)

“These States are not ‘third parties’ outside the Mandate but
jointly and severally responsible associates of the tutelary organiza-
tion entrusted with ensuring the proper application of the Mandate.”
(Jbid., p. 355.)

“Should a dispute arise between the League and a Mandatory,
all the States Members would have the same legal interest as the
League in the dispute, and would be affected to the same extent by
violations of the agreements, one or more of those States having
the right to appear before the Court to defend the common cause.”
(Ibid., p. 361.)

470
473 SOUTH WEST AFRICA (DISS. OP. PADILLA NERVO)

“Regard must be had to the fact that the wording of Article 7 of
the Mandate is broad, clear and precise: it gives rise to no ambi-
guity, it refers to no exception . .. a restrictive interpretation which
would include only the material and individual interests of a State
Member must take a secondary indeed insignificant place.” (Jbid.,
p. 381.)

I agree with the aforementioned opinions; and it follows from what
I have already said that—in my view—the Applicants have a legal right
or interest in the subject-matter of the present claims.

(Signed) Luis PADILLA NERVO.

471


148

SEPARATE OPINION OF JUDGE BADAWI
{Translation ]

I concur in the operative part of the Judgment and while
accepting the grounds on which it is based, restricting the effects
of the fiction established by Article 36, paragraph 5, to signatories
of the Charter or original Members of the United Nations, I am
of opinion that there is a further limitation which ought to be
added.

Indeed, in my opinion, only those original Members of the
United Nations who had made declarations accepting the juris-
diction of the Permanent Court of International Justice for a
definite period of time are included within the scope of Article 36,

paragraph 5.

D * D
* *

But before establishing the correctness of the interpretation
according to which an indication of that restriction is to be found
in the expression “‘still in force” and the corresponding expression
in the French text “pour une durée qui n'est pas encore expirée”,
it is desirable to show that the construction of that expression
by Israel, as referable to the date of the entry into force of the
Charter, apart from the arbitrary character of its selection, en-
counters an inescapable legal objection.

*
* *

In fact, the date of the entry into force of the Charter has no
individual significance. It marks the beginning of the existence of
the Charter as an international pact giving rise to rights and
obligations in the international sphere. It breathes life into and
gives effect to earlier ratifications as well as to subsequent ratifi-
cations by signatories of the Charter. But States admitted to the
United Nations after that date do not and cannot retroactively
assume any obligation going back to that date. All the elements
constituting the obligations assumed by them as a consequence
of their admission to the United Nations (parties, consent and
subject-matter) should be contemporaneous with the date of their
admission and it is at that date that their obligations arise.

Accordingly it cannot properly be held that any acceptance is
formed—even fictitiously—before.a State’s admission to the United
Nations (failure of consent) or after the dissolution of the Per-
manent Court of International Justice (failure of subject-matter).

25
AERIAL INCIDENT (SEPAR. OPIN. JUDGE BADAWI) 149

* * *

In these circumstances, to date back the obligation of Bulgaria,
after it had become a Member of the United Nations, to the entry
into force of the Charter, as the moment of virtual acceptance,
would be to confer upon that fixed and absolute date the magical
effect of giving to a declaration of acceptance, made by a State
which was not a party to the Charter at the time of the signature,
an existence independent of its author.

An interpretation of this kind, which disregards the essential
co-existence in an obligation of consent (real or fictitious), subject-
matter and parties, and separates these elements giving to each
a separate and distinct existence, is clearly inadmissible.

* * *

What then is meant by the expression ‘still in force’? It has
the same meaning as the corresponding expression in the French
text “pour une durée qui n'est pas encore expirée”. The difference
between the two texts is merely apparent and formal. In fact,
the expression “‘still in force” does not refer to a given date but
implies a period of time. It relates to any moment within the
duration of a declaration of acceptance and thus corresponds to
the French expression ‘qui n'est pas encore expirée”.

The meaning of the two expressions “still in force” and “pour
une durée qui n'est pas encore expirée” in the English and French
texts of Article 36, paragraph 5, having been thus defined, it
becomes a simple matter to define the intentions of the authors
of the Charter and to determine the interpretation of that provision.

It is known that the provision arose out of a desire to reconcile
the views of those in favour of the compulsory jurisdiction of the
new Court, with those who wished to retain the optional clause,
by the transfer to the new Court of declarations of acceptance of
the jurisdiction of the Permanent Court of International Justice.

In these circumstances, the first problem which arises is to
determine which declarations were thus to be transferred.

* * *

If all declarations were to be transferred, including those made
for a certain time and those made unconditionally (that is without
any time-limit), that would have required an absolute formulation
from which any concept of duration would have been excluded.

But any such absolute form would have done violence to the
intentions of States which had made declarations with a time
limitation since their acceptance of the Permanent Court of
International Justice would have been transferred to the Inter-
national Court without a time-limit.

26
AERIAL INCIDENT (SEPAR. OPIN. JUDGE BADAWI) 150

To cover the two categories of declarations, while continuing
to respect the desires of States which had accepted with a time-
limit, a double and comparatively complicated formula would
have been necessary.

The authors of the Charter preferred to deal only with the
category of declarations containing a time limitation, as is shown
by the wording which they adopted which is as categorical as it
could be both in the French text “pour la durée restant à courir”
and in the English text “for the period which they still have
to run’.

This choice was, moreover, justified by the fact that, according
to all the writers, the majority or the greater number of States
which accepted the jurisdiction of the Court belonged to that
category of declarations and, furthermore, because acceptances
without limitation of time, apart from the fact that they consti-
tuted in the beginning an unevolved form of the optional clause
which soon fell into disuse in the subsequent practice of States,
are more closely linked to the existence of the Permanent Court
of International Justice. Indeed the absence of the independent
and additional time factor postulates the termination of the
acceptance as soon as the subject-matter of the acceptance ceases
to exist or is destined to cease to exist.

The Bulgarian Declaration of 1921 being unconditional, that is
without any time-limit, could therefore not have been transferred
to the International Court of Justice even if the provision of
Article 36, paragraph 5, had not to be restricted to signatories
of the Charter.

*
* *

But, quite apart from any question of the construction of
paragraph 5 of Article 36, there is an organic consideration which
peremptorily excludes the possibility of giving any effect to the
Bulgarian declaration.

Bulgaria was, at the time of the San Francisco Conference, an
enemy country. But when it was decided to establish a new Court,
this decision was taken on the declared ground that if it had
been decided merely to reinstate the old Permanent Court of
International Justice, the enemy States which had signed the
1920 Statute would automatically have been parties to the Statute
of the Court, a consequence regarded as shocking and one which
the United Nations were determined to avoid.

In these circumstances, it would be contrary to the intentions
manifestly revealed that a fiction established by Article 36,
paragraph 5, should remain dormant to be subsequently applied
to a State whose admission to the United Nations is characterized
by an intentional interruption between the old Covenant of the
League of Nations and the Protocol of the Permanent Court of

27
AERIAL INCIDENT (SEPAR. OPIN. JUDGE BADAWI) I5I

International Justice and the declarations relating to it, on the
one hand, and the Charter and the Statute of the International
Court of Justice on the other hand.

The Treaty of Peace concluded with Bulgaria, which effaced the
latter’s enemy status, and Bulgaria’s admission to the United
Nations under Article 4 of the Charter, constitute for Bulgaria
a new career so far as both the Charter and the Statute are
concerned, to which any provision linking the past with the present

must be extraneous.
(Signed) A. BADAWI.