INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

LEGAL CONSEQUENCES FOR STATES OF THE
CONTINUED PRESENCE OF SOUTH AFRICA IN
NAMIBIA (SOUTH WEST AFRICA)
NOTWITHSTANDING SECURITY COUNCIL
RESOLUTION 276 (1970)

ADVISORY OPINION OF 21 JUNE 1971

1971

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

CONSEQUENCES JURIDIQUES POUR LES ETATS DE
LA PRESENCE CONTINUE DE L’AFRIQUE DU SUD
EN NAMIBIE (SUD-OUEST AFRICAIN)
NONOBSTANT LA RÉSOLUTION 276 (1970)

DU CONSEIL DE SÉCURITÉ

AVIS CONSULTATIF DU 21 JUIN 1971
Official citation:

Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council Reso-
lution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16.

Mode officiel de citation:

Conséquences juridiques pour les Etats de la présence continue de I’ Afrique
dv Sud en Namibie (Sud-Ouest africain) nonobstant la résolution 276
(1970) du Conseil de sécurité, avis consultatif, C.I.J. Recueil 1971, p. 16.

No de vente: S52

16

INTERNATIONAL COURT OF JUSTICE

YEAR 1971
197]
21 June
General List
No. 53 21 June 1971

LEGAL CONSEQUENCES FOR STATES OF THE
CONTINUED PRESENCE OF SOUTH AFRICA IN
NAMIBIA (SOUTH WEST AFRICA) NOTWITHSTANDING
SECURITY COUNCIL RESOLUTION 276 (1970)

Composition and competence of the Court—Propriety of the Court’s giving the
Opinion—Concept of mandates—Characteristics of the League of Nations
Mandate for South West Africa—Situation on the dissolution of the League
of Nations and the setting-up of the United Nations: survival of the Mandate and
transference of supervision and accountability to the United Nations—Develop-
ments in the United Nations prior to the termination of the Mandate—Revoca-
bility of the Mandate—Termination of the Mandate by the General Assembly—
Action in the Security Council and effect of Security Council resolutions leading
to the request for Opinion—Requests by South Africa to supply further factual
information and for the holding of a plebiscite—Legal consequences for States

ADVISORY OPINION

Present: President Sir Muhammad ZAFRULLA KHAN; Vice-President AMMOUN;
Judges Sir Gerald FITZMAURICE, PADILLA NERVO, FORSTER, GROS,
BENGZON, PETREN, LACHS, ONYEAMA, DILLARD, IGNACIO-PINTO, DE
CASTRO, Morozov, JIMENEZ DE ARECHAGA; Registrar AQUARONE.

Concerning the legal consequences for States of the continued presence of
South Africa in Namibia (South West Africa), notwithstanding Security Council
resolution 276 (1970),
17 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

THE CourT,
composed as above,
gives the following Advisory Opinion:

1. The question upon which the advisory opinion of the Court has been
asked was laid before the Court by a letter dated 29 July 1970, filed in the
Registry on 10 August, and addressed by the Secretary-General of the United
Nations to the President of the Court. In his letter the Secretary-General informed
the Court that, by resolution 284 (1970) adopted on 29 July 1970, certified true
copies of the English and French texts of which were transmitted with his letter,
the Security Council of the United Nations had decided to submit to the Court,
with the request for an advisory opinion to be transmitted to the Security
Council at an early date, the question set out in the resolution, which was in
the following terms:

“The Security Council,

Reaffirming the special responsibility of the United Nations with regard
to the territory and the people of Namibia,

Recalling Security Council resolution 276 (1970) on the question of
Namibia,

Taking note of the report and recommendations submitted by the
Ad Hoc Sub-Committee established in pursuance of Security Council
resolution 276 (1970),

Tak ing further note of the recommendation of the Ad Hoc Sub-Committee
on the possibility of requesting an advisory opinion from the International
Court of Justice,

Considering that an advisory opinion from the International Court of
Justice would be useful for the Security Council in its further consideration
of the question of Namibia and in furtherance of the objectives the Council
is seeking

1. Decides to submit in accordance with Article 96 (1) of the Charter,
the following question to the International Court of Justice with the
request for an advisory opinion which shall be transmitted to the Security
Council at an early date:

‘What are the legal consequences for States of the continued presence
of South Africa in Namibia, notwithstanding Security Council resolu-
tion 276 (1970)?

2. Requests the Secretary-General to transmit the present resolution to
the International Court of Justice, in accordance with Article 65 of the
Statute of the Court, accompanied by all documents likely to throw light
upon the question.”

2. On 5 August 1970, that is to say, after the despatch of the Secretary-
General’s letter but before its receipt by the Registry, the English and French
texts of resolution 284 (1970) of the Security Council were communicated to
the President of the Court by telegram from the United Nations Secretariat.
The President thereupon decided that the States Members of the United Nations
were likely to be able to furnish information on the question, in accordance
with Article 66, paragraph 2, of the Statute, and by an Order dated 5 August
1970, the President fixed 23 September 1970 as the time-limit within which the

5
18 NAMIBIA (S.W. AFRICA) {ADVISORY OPINION)

Court would be prepared to receive written statements from them. The same
day, the Registrar sent to the States Members of the United Nations the special
and direct communication provided for in Article 66 of the Statute.

3. The notice of the request for advisory opinion, prescribed by Article 66,
paragraph 1, of the Statute, was given by the Registrar to all States entitled
to appear before the Court by letter of 14 August 1970.

4. On 21 August 1970, the President decided that in addition to the States
Members of the United Nations, the non-member States entitled to appear
before the Court were also likely to be able to furnish information on the
question. The same day the Registrar sent to those States the special and direct
communication provided for in Article 66 of the Statute.

5. On 24 August 1970, a letter was received by the Registrar from the Secretary
for Foreign Affairs of South Africa, whereby the Government of South Africa,
for the reasons therein set out, requested the extension to 31 January 1971 of
the time-limit for the submission of a written statement. The President of the
Court, by an Order dated 28 August 1970, extended the time-limit for the
submission of written statements to 19 November 1970.

6. The Secretary-General of the United Nations, in two instalments, and
the following States submitted to the Court written statements or letters setting
forth their views: Czechoslovakia, Finland, France, Hungary, India, the
Netherlands, Nigeria, Pakistan, Poland, South Africa, the United States of
America, Yugoslavia. Copies of these communications were transmitted to all
States entitled to appear before the Court, and to the Secretary-General of the
United Nations, and, in pursuance of Articles 44, paragraph 3, and 82, para-
graph 1, of the Rules of Court, they were made accessible to the public as
from 5 February 1971.

7. The Secretary-General of the United Nations, in pursuance of Article 65,
paragraph 2, of the Statute transmitted to the Court a dossier of documents
likely to throw light upon the question, together with an Introductory Note;
these documents were received in the Registry in instalments between 5 Novem-
ber and 29 December 1970.

8. Before holding public sittings to hear orai statements in accordance with
Article 66, paragraph 2, of the Statute, the Court had first to resolve two
questions relating to its composition for the further proceedings.

9. In its written statement, filed on 19 November 1970, the Government of
South Africa had taken objection to the participation of three Members of the
Court in the proceedings. Its objections were based on statements made or
other participation by the Members concerned, in their former capacity as
representatives of their Governments, in United Nations organs which were
dealing with matters concerning South West Africa. The Court gave careful
consideration to the objections raised by the Government of South Africa,
examining each case separately. In each of them the Court reached the conclusion
that the participation of the Member concerned in his former capacity as
representative of his Government, to which objection was taken in the South
African Government’s written statement, did not attract the application of
Article 17, paragraph 2, of the Statute of the Court. In making Order No, 2
of 26 January 1971, the Court found no reason to depart in the present advisory
proceedings from the decision adopted by the Court in the Order of 18 March
1965 in the South West Africa cases (Ethiopia v. South Africa; Liberia v.
South Africa) after hearing the same contentions as have now been advanced
by the Government of South Africa. In deciding the other two objections, the

6
19 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

Court took into consideration that the activities in United Nations organs of the
Members concerned, prior to their election to the Court, and which are referred
to in the written statement of the Government of South Africa, do not furnish
grounds for treating these objections differently from those raised in the appli-
cation to which the Court decided not to accede in 1965, a decision confirmed
by its Order No. 2 of 26 January 1971. With reference to Order No. 3 of the
same date, the Court also took into consideration a circumstance to which its
attention was drawn, although it was not mentioned in the written statement of
the Government of South Africa, namely the participation of the Member
concerned, prior to his election to the Court, in the formulation of Security
Council resolution 246 (1968), which concerned the trial at Pretoria of thirty-
seven South West Africans and which in its preamble took into account General
Assembly resolution 2145 (XXI). The Court considered that this participa-
tion of the Member concerned in the work of the United Nations, as a represen-
tative of his Government, did not justify a conclusion different from that
already reached with regard to the objections raised by the Government of South
Africa. Account must also be taken in this respect of precedents established
by the present Court and the Permanent Court wherein judges sat in certain
cases even though they had taken part in the formulation of texts the Court
was asked to interpret. (P.C./.J., Series A, No. 1, p. 11; P.C.1J/., Series C, No. 84,
p. 535; P.C.LJ., Series E, No. 4, p. 270; P.C.LJ., Series E, No. 8, p. 251.) After
deliberation, the Court decided, by three Orders dated 26 January 1971, and
made public on that date, not to accede to the objections which had been raised.

10. By a letter from the Secretary for Foreign Affairs dated 13 November 1970,
the Government of South Africa made an application for the appointment of
a judge ad hoc to sit in the proceedings, in terms of Article 31, paragraph 2,
of the Statute of the Court. The Court decided, in accordance with the terms
of Article 46 of the Statute of the Court, to hear the contentions of South
Africa on this point in camera, and a closed hearing, at which representatives
of India, the Netherlands, Nigeria and the United States of America were also
present, was held for the purpose on 27 January 1971.

11. By an Order dated 29 January 1971, the Court decided to reject the
application of the Government of South Africa. The Court thereafter decided
that the record of the closed hearing should be made accessible to the public.

12. On 29 January 1971, the Court decided, upon the application of the
Organization of African Unity, that that Organization was also likely to be
able to furnish information on the question before the Court, and that the
Court would therefore be prepared to hear an oral statement on behalf of the
Organization.

13. The States entitled to appear before the Court had been informed by the
Registrar on 27 November 1970 that oral proceedings in the case would be
likely to open at the beginning of February 1971. On 4 February 1971, notifica-
tion was given to those States which had expressed an intention to make oral
statements, and to the Secretary-General of the United Nations and the
Organization of African Unity, that 8 February had been fixed as the opening
date. At 23 public sittings held between 8 February and 17 March 1971, oral
statements were made to the Court by the following representatives:
20 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

for the Secretary-General Mr. C. A. Stavropoulos, Under-Secretary-
of the United Nations: General, Legal Counsel of the United
Nations, and Mr. D. B. H. Vickers, Senior

Legal Officer, Office of Legal Affairs;

for Finland: Mr. E. J. S. Castrén, Professor of International
Law in the University of Helsinki;

for the Organization of Mr. T. O. Elias, Attorney-General and Com-

African Unity: missioner for Justice of Nigeria;

for India: Mr. M. C. Chagla, M.P., Former Minister for
Foreign Affairs in the Government of India;

for the Netherlands: Mr. W. Riphagen, Legal Adviser to the
Ministry of Foreign Affairs;

for Nigeria: Mr. T. O. Elias, Attorney-General and Com-
missioner for Justice;

for Pakistan: Mr. S. S. Pirzada, S.Pk., Attorney-General of
Pakistan;

for South Africa: Mr. J. D. Viall, Legal Adviser to the Depart-

ment of Foreign Affairs,

Mr. D. P. de Villiers, S.C., Advocate of the
Supreme Court of South Africa,

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

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

Mr. R. F. Botha, Member of the South African
Bar,

Mr. M. Wiechers, Professor of Law in the
University of South Africa;

for the Republic of Mr. Le Tai Trien, Attorney-General, Supreme
Viet-Nam: Court of Viet-Nam;

for the United States of Mr. J. R. Stevenson, The Legal Adviser,
America: Department of State.

14. Prior to the opening of the public sittings, the Court decided to examine
first of all certain observations made by the Government of South Africa in its
written statement, and in a letter dated 14 January 1971, in support of its
submission that the Court should decline to give an advisory opinion.

15. At the opening of the public sittings on 8 February 1971, the President
of the Court announced that the Court had reached a unanimous decision
thereon. The substance of the submission of the Government of South Africa
and the decision of the Court are dealt with in paragraphs 28 and 29 of the
Advisory Opinion, below.

16. By a letter of 27 January 1971, the Government of South Africa had
submitted a proposal to the Court regarding the holding of a plebiscite in the
Territory of Namibia (South West Africa), and this proposal was elaborated
in a further letter of 6 February 1971, which explained that the plebiscite was
to determine whether it was the wish of the inhabitants “that the Territory
should continue to be administered by the South African Government or should
henceforth be administered by the United Nations”.

8
21 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

17. At the hearing of 5 March 1971, the representative of South Africa
explained further the position of his Government with regard to the proposed
plebiscite, and indicated that his Government considered it necessary to
adduce considerable evidence on the factual issues which it regarded as under-
lying the question before the Court. At the close of the hearing, on 17 March
1971, the President made the following statement:

“The Court has considered the request submitted by the representative
of South Africa in his letter of 6 February 1971 that a plebiscite should be
held in the Territory of Namibia (South West Africa) under the joint
supervision of the Court and the Government of the Republic of South
Africa.

The Court cannot prénounce upon this request at the present stage
without anticipating, or appearing to anticipate, its decision on one or
more of the main issues now before it. Consequently, the Court must
defer its answer to this request until a later date.

The Court has also had under consideration the desire of the Govern-
ment of the Republic to supply the Court with further factual material
concerning the situation in Namibia (South West Africa). However, until
the Court has been able first to examine some of the legal issues which
must, in any event, be dealt with, it will not be in a position to determine
whether it requires additional material on the facts. The Court must
accordingly defer its decision on this matter as well.

if, at any time, the Court should find itself in need of further arguments
or information, on these or any other matters, it will notify the govern-
ments and organizations whose representatives have participated in the
oral hearings.”

18. On 14 May 1971 the President sent the following letter to the represen-
tatives of the Secretary-General, of the Organization of African Unity and of
the States which had participated in the oral proceedings:

“F have the honour to refer to the statement which I made at the end of
the oral hearing on the advisory proceedings relating to the Territory of
Namibia (South West Africa) on 17 March last ..., to the effect that the
Court considered it appropriate to defer until a later date its decision
regarding the requests of the Government of the Republic of South Africa
(a) for the holding in that Territory of a plebiscite under the joint super-
vision of the Court and the Government of the Republic; and (5) to be
allowed to supply the Court with further factual material concerning the
situation there.

I now have the honour to inform you that the Court, having examined
the matter, does not find itself in need of further arguments or information,
and has decided to refuse both these requests.”

*
* *

19. Before examining the merits of the question submitted to it the
Court must consider the objections that have been raised to its doing so.
20. The Government of South Africa has contended that for several
reasons resolution 284 (1970) of the Security Council, which requested

9
22 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

the advisory opinion of the Court, is invalid, and that, therefore, the
Court is not competent to deliver the opinion. A resolution of a properly
constituted organ of the United Nations which is passed in accordance with
that organ’s rules of procedure, and is declared by its President to have
been so passed, must be presumed to have been validly adopted. However,
since in this instance the objections made concern the competence of
the Court, the Court will proceed to examine them.

21. The first objection is that in the voting on the resolution two per-
manent members of the Security Council abstained. It is contended that
the resolution was consequently not adopted by an affirmative vote of
nine members, including the concurring votes of the permanent members,
as required by Article 27, paragraph 3, of the Charter of the United
Nations.

22. However, the proceedings of the Security Council extending over
a long period supply abundant evidence that presidential rulings and the
positions taken by members of the Council, in particular its permanent
members, have consistently and uniformly interpreted the practice of
voluntary abstention by a permanent member as not constituting a bar
to the adoption of resolutions. By abstaining, a member does not signify
its objection to the approval of what is being proposed; in order to prevent
the adoption of a resolution requiring unanimity of the permanent mem-
bers, a permanent member has only to cast a negative vote. This proce-
dure followed by the Security Council, which has continued unchanged
after the amendment in 1965 of Article 27 of the Charter, has been gener-
ally accepted by Members of the United Nations and evidences a general
practice of that Organization.

23. The Government of South Africa has also argued that as the ques-
tion relates to a dispute between South Africa and other Members of the
United Nations, South Africa, as a Member of the United Nations, not a
member of the Security Council and a party to a dispute, should have
been invited under Article 32 of the Charter to participate, without vote,
in the discussion relating to it. It further contended that the proviso at
the end of Article 27, paragraph 3, of the Charter, requiring members
of the Security Council which are parties to a dispute to abstain from
voting, should have been complied with.

24. The language of Article 32 of the Charter is mandatory, but the
question whether the Security Council must extend an invitation in
accordance with that provision depends on whether it has made a deter-
mination that the matter under its consideration is in the nature of a
dispute. In the absence of such a determination Article 32 of the Charter
does not apply.

25. The question of Namibia was placed on the agenda of the Security
Council as a “situation” and not as a “‘dispute’’. No member State made
any suggestion or proposal that the matter should be examined as a
dispute, although due notice was given of the placing of the question

10
23 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

on the Security Council’s agenda under the title “Situation in Namibia”.
Had the Government of South Africa considered that the question should
have been treated in the Security Council as a dispute, it should have
drawn the Council’s attention to that aspect of the matter. Having failed
to raise the question at the appropriate time in the proper forum, it is
not open to it to raise it before the Court at this stage.

26. A similar answer must be given to the related objection based on
the proviso to paragraph 3 of Article 27 of the Charter. This proviso
also requires for its application the prior determination by the Security
Council that a dispute exists and that certain members of the Council
are involved as parties to such a dispute.

27. In the alternative the Government of South Africa has contended
that even if the Court had competence to give the opinion requested,
it should nevertheless, as a matter of judicial propriety, refuse to exercise
its competence.

28. The first reason invoked in support of this contention is the sup-
posed disability of the Court to give the opinion requested by the Security
Council, because of political pressure to which the Court, according to
the Government of South Africa, has been or might be subjected.

29. It would not be proper for the Court to entertain these observa-
tions, bearing as they do on the very nature of the Court as the principal
judicial organ of the United Nations, an organ which, in that capacity,
acts only on the basis of the law, independently of all outside influence
or interventions whatsoever, in the exercise of the judicial function en-
trusted to it alone by the Charter and its Statute. A court functioning
as a court of law can act in no other way.

30. The second reason advanced on behalf of the Government of
South Africa in support of its contention that the Court should refuse to
accede to the request of the Security Council is that the relevant legal
question relates to an existing dispute between South Africa and other
States. In this context it relies on the case of Eastern Carelia and argues
that the Permanent Court of International Justice declined to rule upon
the question referred to it because it was directly related to the main
point of a dispute actually pending between two States.

31. However, that case is not relevant, as it differs from the present
one. For instance one of the States concerned in that case was not at
the time a Member of the League of Nations and did not appear before
the Permanent Court. South Africa, as a Member of the United Nations,
is bound by Article 96 of the Charter, which empowers the Security
Council to request advisory opinions on any legal question. It has ap-
peared before the Court, participated in both the written and oral pro-

11
24 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

ceedings and, while raising specific objections against the competence
of the Court, has addressed itself to the merits of the question.

32. Nor does the Court find that in this case the Security Council’s
request relates to a legal dispute actually pending between two or more
States. It is not the purpose of the request to obtain the assistance of the
Court in the exercise of the Security Council’s functions relating to the
pacific settlement of a dispute pending before it between two or more
States. The request is put forward by a United Nations organ with refer-
ence to its own decisions and it seeks legal advice from the Court on the
consequences and implications of these decisions. This objective is
stressed by the preamble to the resolution requesting the opinion, in
which the Security Council has stated “that an advisory opinion from
the International Court of Justice would be useful for the Security Council
in its further consideration of the question of Namibia and in further-
ance of the objectives the Council is seeking”. It is worth recalling that
in its Advisory Opinion on Reservations to the Convention on the Preven-
tion and Punishment of the Crime of Genocide, the Court stated: “The
object of this request for an Opinion is to guide the United Nations in
respect of its own action” (/.C.J. Reports 1951. p. 19).

33. The Court does not find either that in this case the advisory
opinion concerns a dispute between South Africa and the United Nations.
In the course of the oral proceedings Counsel for the Government of
South Africa stated:

“... our submission is not that the question is a dispute, but that
in order to answer the question the Court will have to decide legal
and factual issues which are actually in dispute between South
Africa and other States”

34, The fact that, in the course of its reasoning, and in order to answer
the question submitted to it, the Court may have to pronounce on legal
issues upon which radically divergent views exist between South Africa
and the United Nations, does not convert the present case into a dispute
nor bring it within the compass of Articles 82 and 83 of the Rules of
Court. A similar position existed in the three previous advisory proceed-
ings concerning South West Africa: in none of them did South Africa
claim that there was a dispute, nor did the Court feel it necessary to
apply the Rules of Court concerning “a legal question actually pending
between two or more States”. Differences of views among States on legal
issues have existed in practically every advisory proceeding; if all were
agreed, the need to resort to the Court for advice would not arise.

35. In accordance with Article 83 of the Rules of Court, the question
whether the advisory opinion had been requested “‘upon a legal question
actually pending between two or more States” was also of decisive im-

12
25 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

portance in the Court’s consideration of the request made by the Govern-
ment of South Africa for the appointment of a judge ad hoc. As already
indicated, the Court heard argument in support of that request and,
after due deliberation, decided, by an Order of 29 January 1971, not to
accede to it. This decision was based on the conclusion that the terms of
the request for advisory opinion, the circumstances in which it had been
submitted (which are described in para. 32 above), as well as the con-
siderations set forth in paragraphs 33 and 34 above, were such as to
preclude the interpretation that an opinion had been “‘requested upon a
legal question actually pending between two or more States”. Thus, in
the opinion of the Court, South Africa was not entitled under Article 83
of the Rules of Court to the appointment of a judge ad hoc.

36. It has been urged that the possible existence of a dispute was a
point of substance which was prematurely disposed of by the Order of
29 January 1971. Now the question whether a judge ad hoc should be
appointed is of course a matter concerning the composition of the Bench
and possesses, as the Government of South Africa recognized, absolute
logical priority. It has to be settled prior to the opening of the oral
proceedings, and indeed before any further issues, even of procedure,
can be decided. Until it is disposed of the Court cannot proceed with the
case. It is thus a logical necessity that any request for the appointment of
a judge ad hoc must be treated as a preliminary matter on the basis of a
prima facie appreciation of the facts and the law. This cannot be construed
as meaning that the Court’s decision thereon may involve the irrevocable
disposal of a point of substance or of one related to the Court’s compe-
tence. Thus, in a contentious case, when preliminary objections have been
raised, the appointment of judges ad hoc must be decided before the
hearing of those objections. That decision, however, does not prejudge
the Court’s competence if, for instance, it is claimed that no dispute
exists. Conversely, to assert that the question of the judge ad hoc could
not be validly settled until the Court had been able to analyse substantive
issues is tantamount to suggesting that the composition of the Court
could be left in suspense, and thus the validity of its proceedings left in
doubt, until an advanced stage in the case.

37. The only question which was in fact settled with finality by the
Order of 29 January 1971 was the one relating to the Court’s compo-
sition for the purpose of the present case. That decision was adopted on
the authority of Article 3, paragraph 1, of the Rules of Court and in
accordance with Article 55, paragraph 1, of the Statute. Consequently,
after the adoption of that decision, while differing views might still be
held as to the applicability of Article 83 of the Rules of Court in the
present case, the regularity of the composition of the Court for the

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26 NAMIBIA (S.W, AFRICA) (ADVISORY OPINION)

purposes of delivering the present Advisory Opinion, in accordance with
the Statute and the Rules of Court, is no longer open to question.

38. In connection with the possible appointment of judges ad hoc, it
has further been suggested that the final clause in paragraph 1 of Article
82 of the Rules of Court obliges the Court to determine as a preliminary
question whether the request relates to a legal question actually pending
between two or more States. The Court cannot accept this reading, which
overstrains the literal meaning of the words “avant tour”. It is difficult
to conceive that an Article providing general guidelines in the relatively
unschematic context of advisory proceedings should prescribe a rigid
sequence in the action of the Court. This is confirmed by the practice of
the Court, which in no previous advisory proceedings has found it neces-
sary to make an independent preliminary determination of this question
or of its own competence, even when specifically requested to do so.
Likewise, the interpretation of the Rules of Court as imposing a procedure
in limine litis, which has been suggested, corresponds neither to the text of
the Article nor to its purpose, which is to regulate advisory proceedings
without impairing the flexibility which Articles 66, paragraph 4, and 68 of
the Statute allow the Court so that it may adjust its procedure to the require-
ments of each particular case. The phrase in question merely indicates that
the test of legal pendency is to be considered ‘“‘above all” by the Court for
the purpose of exercising the latitude granted by Article 68 of the Statute
to be guided by the provisions which apply in contentious cases to the
extent to which the Court recognizes them to be applicable. From a
practical point of view it may be added that the procedure suggested,
analogous to that followed in contentious procedure with respect to
preliminary objections, would not have dispensed with the need to
decide on the request for the appointment of a judge ad hoc as a previous,
independent decision, just as in contentious cases the question of judges
ad hoc must be settled before any hearings on the preliminary objections
may be proceeded with. Finally, it must be observed that such proposed
preliminary decision under Article 82 of the Rules of Court would not
necessarily have predetermined the decision which it is suggested should
have been taken subsequently under Article 83, since the latter provision
envisages a more restricted hypothesis: that the advisory opinion is
requested upon a legal question actually pending and not that it relates
to such a question.

39. The view has also been expressed that even if South Africa is not
entitled to a judge ad hoc as a matter of right, the Court should, in the
exercise of the discretion granted by Article 68 of the Statute, have allowed
such an appointment, in recognition of the fact that South Africa’s
interests are specially affected in the present case. In this connection the
Court wishes to recall a decision taken by the Permanent Court at a time
when the Statute did not include any provision concerning advisory
opinions, the entire regulation of the procedure in the matter being thus
left to the Court (P.C.LJ., Series E, No. 4, p. 76). Confronted with a

14
27 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

request for the appointment of a judge ad hoc in a case in which it found
there was no dispute, the Court, in rejecting the request, stated that “‘the
decision of the Court must be in accordance with its Statute and with
the Rules duly framed by it in pursuance of Article 30 of the Statute”
(Order of 31 October 1935, P.C.1.J., Series A/B, No. 65, Annex 1, p. 69
at p. 70). It found further that the “exception cannot be given a wider
application than is provided for by the Rules” (ibid., p. 71). In the present
case the Court, having regard to the Rules of Court adopted under
Article 30 of the Statute, came to the conclusion that it was unable to
exercise discretion in this respect.

40. The Government of South Africa has also expressed doubts as to
whether the Court is competent to, or should, give an opinion, if, in
order to do so, it should have to make findings as to extensive factual
issues. In the view of the Court, the contingency that there may be
factual issues underlying the question posed does not alter its character
as a “legal question” as envisaged in Article 96 of the Charter. The
reference in this provision to legal questions cannot be interpreted as
opposing legal to factual issues. Normally, to enable a court to pronounce
on legal questions, it must also be acquainted with, take into account
and, if necessary, make findings as to the relevant factual issues. The
limitation of the powers of the Court contended for by the Government
of South Africa has no basis in the Charter or the Statute.

41. The Court could, of course, acting on its own, exercise the dis-
cretion vested in it by Article 65, paragraph 1, of the Statute and decline
to accede to the request for an advisory opinion. In considering this
possibility the Court must bear in mind that: “A reply to a request for
an Opinion should not, in principle, be refused.” U.C.J. Reports 1951,
p. 19.) The Court has considered whether there are any ‘‘compelling
reasons”, as referred to in the past practice of the Court, which would
justify such a refusal. It has found no such reasons. Moreover, it feels
that by replying to the request it would not only “‘remain faithful to the
requirements of its judicial character” (/.C.J. Reports 1960, p. 153),
but also discharge its functions as “the principal judicial organ of the
United Nations” (Art. 92 of the Charter).

42. Having established that it is properly seised of a request for an
advisory opinion, the Court will now proceed to an analysis of the
question placed before it: ‘““What are the legal consequences for States
of the continued presence of South Africa in Namibia, notwithsiending
Security Council resolution 276 (1970)?”

43. The Government of South Africa in both its written and oral
statements has covered a wide field of history, going back to the origin
and functioning of the Mandate. The same and similar problems were

15
28 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

dealt with by other governments, the Secretary-General of the United
Nations and the Organization of African Unity in their written and oral
statements.

44. A series of important issues is involved: the nature of the Mandate,
its working under the League of Nations, the consequences of the demise
of the League and of the establishment of the United Nations and the
impact of further developments within the new organization. While the
Court is aware that this is the sixth time it has had to deal with the issues
involved in the Mandate for South West Africa, it has nonetheless
reached the conclusion that it is necessary for it to consider and summarize
some of the issues underlying the question addressed to it. In particular,
the Court will examine the substance and scope of Article 22 of the
League Covenant and the nature of ““C’” mandates.

45. The Government of South Africa, in its written statement, presented
a detailed analysis of the intentions of some of the participants in the
Paris Peace Conference, who approved a resolution which, with some
alterations and additions, eventually became Article 22 of the Covenant.
At the conclusion and in the light of this analysis it suggested that it was
quite natural for commentators to refer to “‘C’ mandates as being in
their practical effect not far removed from annexation”’. This view, which
the Government of South Africa appears to have adopted, would be
tantamount to admitting that the relevant provisions of the Covenant
were of a purely nominal character and that the rights they enshrined
were of their very nature imperfect and unenforceable. It puts too much
emphasis on the intentions of some of the parties and too little on the
instrument which emerged from those negotiations. It is thus necessary
to refer to the actual text of Article 22 of the Covenant, paragraph 1 of
which declares:

“1. To those colonies and territories which as a consequence of
the late war have ceased to be under the sovereignty of the States
which formerly governed them and which are inhabited by peoples
not yet able to stand by themselves under the strenuous conditions
of the modern world, there should be applied the principle that the
well-being and development of such peoples form a sacred trust
of civilisation and that securities for the performance of this trust
should be embodied in this Covenant.”

As the Court recalled in its 1950 Advisory Opinion on the International
Status of South-West Africa, in the setting-up of the mandates system “two
principles were considered to be of paramount importance: the principle
of non-annexation and the principle that the well-being and development
of such peoples form ‘a sacred trust of civilization’ (U.C.J. Reports 1950,
p. 131).

46. It is self-evident that the “trust” had to be exercised for the benefit
of the peoples concerned, who were admitted to have interests of their

16
29 NAMIBIA (8.W. AFRICA) (ADVISORY OPINION)

own and to possess a potentiality for independent ‘existence on the
attainment of a certain stage of development: the mandates system was
designed to provide peoples “‘not yet” able to manage their own affairs
with the help and guidance necessary to enable them to arrive at the
stage where they would be ‘‘able to stand by themselves’’. The requisite
means ‘of assistance to that end is dealt with in paragraph 2 of Arti-
cle 22:

“2. The best method of giving practical effect to this principle
is that the tutelage of such peoples should be entrusted to advanced
nations who by reason of their resources, their experience or their
geographical position can best undertake this responsibility, and
who are willing to accept it, and that this tutelage should be exercised
by them as Mandatories on behalf of the League.”

This made it clear that those Powers which were to undertake the task
envisaged would be acting exclusively as mandatories on behalf of the
League. As to the position of the League, the Court found in its 1950
Advisory Opinion that: “The League was not, as alleged by [the South
African] Government, a ‘mandator’ in the sense in which this term is
used in the national law of certain States.” The Court pointed out that:
“The Mandate was created, in the interest of the inhabitants of the terri-
tory, and of humanity in general, as an international institution with an
international object—a sacred trust of civilisation.” Therefore, the Court
found, the League “had only assumed an international function of
supervision and control” U.C.J. Reports 1950, p. 132).

47. The acceptance of a mandate on these terms connoted the assump-
tion of obligations not only of a moral but also of a binding legal character;
and, as a corollary of the trust, “securities for [its] performance” were
instituted (para. 7 of Art. 22) in the form of legal accountability for its
discharge and fulfilment:

“7, In every case of mandate, the Mandatory shall render to the
Council an annual report in reference to the territory committed
to its charge.”

48. A further security for the performance of the trust was embodied
in paragraph 9 of Article 22:

“9. A permanent Commission shall be constituted to receive and
examine the annual reports of the Mandatories and to advise the
Council on all matters relating to the observance of the mandates.”

Thus the reply to the essential question, quis custodiet ipsos custodes?,
was given in terms of the mandatory’s accountability to international

17
30 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

organs. An additional measure of supervision was introduced by a
resolution of the Council of the League of Nations, adopted on 31 Jan-
uary 1923. Under this resolution the mandatory Governments were to _
transmit to the League petitions from communities or sections of the
populations of mandated territories.

49. Paragraph 8 of Article 22 of the Covenant gave the following
directive:

“8. The degree of authority, control or administration to be
exercised by the Mandatory shall, if not previously agreed upon by
the Members of the League, be explicitly defined in each case by the
Council.”

In pursuance of this directive, a Mandate for German South West Africa
was drawn up which defined the terms of the Mandatory’s administration
in seven articles. Of these, Article 6 made explicit the obligation of the
Mandatory under paragraph 7 of Article 22 of the Covenant by providing
that “The Mandatory shall make to the Council of the League of Nations
an annual report to the satisfaction of the Council, containing full
information with regard to the territory, and indicating the measures
taken to carry out the obligations assumed under Articles 2, 3, 4 and 5”
of the Mandate. As the Court said in 1950: “the Mandatory was to
observe a number of obligations, and the Council of the League was to
supervise the administration and see to it that these obligations were
fulfilled” (.C./. Reports 1950, p. 132). In sum the relevant provisions of
the Covenant and those of the Mandate itself preclude any doubt as to
the establishment of definite legal obligations designed for the attainment
of the object and purpose of the Mandate.

50. As indicated in paragraph 45 above, the Government of South
Africa has dwelt at some length on the negotiations which preceded the
adoption of the final version of Article 22 of the League Covenant, and
has suggested that they lead to a different reading of its provisions. It is
true that as that Government points out, there had been a strong tendency
to annex former enemy colonial territories. Be that as it may, the final
outcome of the negotiations, however difficult of achievement, was a
rejection of the notion of annexation. It cannot tenably be argued that
the clear meaning of the mandate institution could be ignored by placing
upon the explicit provisions embodying its principles a construction at
variance with its object and purpose.

51. Events subsequent to the adoption of the instruments in question
should also be considered. The Allied and Associated Powers, in their
Reply to Observations of the German Delegation, referred in 1919 to
“the mandatory Powers, which in so far as they may be appointed
trustees by the League of Nations will derive no benefit from such
trusteeship”. As to the Mandate for South West Africa, its preamble

18
31 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

recited that “His Britannic Majesty, for and on behalf of the Government
of the Union of South Africa, has agreed to accept the Mandate in respect
of the said territory and has undertaken to exercise it on behalf of the
League of Nations”.

52. Furthermore, the subsequent development of international law in
regard to non-self-governing territories, as enshrined in the Charter of the
United Nations, made the principle of self-determination applicable to all
of them. The concept of the sacred trust was confirmed and expanded to
all “territories whose peoples have not yet attained a full measure of
self-government” (Art. 73). Thus it clearly embraced territories under a
colonial régime. Obviously the sacred trust continued to apply to League
of Nations mandated territories on which an international status had
been conferred earlier. A further important stage in this development was
the Declaration on the Granting of Independence to Colonial Countries
and Peoples (General Assembly resolution 1514 (XV) of 14 December
1960), which embraces all peoples and territories which “have not yet
attained independence’. Nor is it possible to leave out of account the
political history of mandated territories in general. All those which did not
acquire independence, excluding Namibia, were placed under trusteeship.
Today, only two out of fifteen, excluding Namibia, remain under United
Nations tutelage. This is but a manifestation of the general development
which has led to the birth of so many new States.

53. All these considerations are germane to the Court’s evaluation of
the present case. Mindful as it is of the primary necessity of interpreting
an instrument in accordance with the intentions of the parties at the time
of its conclusion, the Court is bound to take into account the fact that the
concepts embodied in Article 22 of the Covenant—“the strenuous
conditions of the modern world” and “the well-being and development”
of the peoples concerned—were not static, but were by definition
evolutionary, as also, therefore, was the concept of the ‘“‘sacred trust”.
The parties to the Covenant must consequently be deemed to have
accepted them as such. That is why, viewing the institutions of 1919, the
Court must take into consideration the changes which have occurred in
the supervening half-century, and its interpretation cannot remain
unaffected by the subsequent development of law, through the Charter of
the United Nations and by way of customary law. Moreover, an inter-
national instrument has to be interpreted and applied within the frame-
work of the entire legal system prevailing at the time of the interpretation.
In the domain to which the present proceedings relate, the last fifty years,
as indicated above, have brought important developments. These
developments leave little doubt that the ultimate objective of the sacred
trust was the self-determination and independence of the peoples con-
cerned. In this domain: as elsewhere, the corpus iuris gentium has been

19
32 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

considerably enriched, and this the Court, if it is faithfully to discharge
its functions, may not ignore.

54. In the light of the foregoing, the Court is unable to accept any
construction which would attach to ““C” mandates an object and purpose
different from those of “A” or “B” mandates. The only differences were
those appearing from the language of Article 22 of the Covenant, and
from the particular mandate instruments, but the objective and safeguards
remained the same, with no exceptions such as considerations of geo-
graphical contiguity. To hold otherwise would mean that territories
under “C” mandate belonged to the family of mandates only in name,
being in fact the objects of disguised cessions, as if the affirmation that
they could ‘‘be best administered under the laws of the Mandatory as
integral portions of its territory” (Art. 22, para. 6) conferred upon the
administering Power a special title not vested in States entrusted with “A”
or ‘“B” mandates. The Court would recall in this respect what was stated
in the 1962 Judgment in the South West Africa cases as applying to all
categories of mandate:

“The rights of the Mandatory in relation to the mandated territory
and the inhabitants 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.” (.C.J. Reports 1962, p. 329.)

*
* *

55. The Court will now turn to the situation which arose on the demise
of the League and with the birth of the United Nations. As already
recalled, the League of Nations was the international organization
entrusted with the exercise of the supervisory functions of the Mandate.
Those functions were an indispensable element of the Mandate. But that
does not mean that the mandates institution was to collapse with the
disappearance of the original supervisory machinery. To the question
whether the continuance of a mandate was inseparably linked with the
existence of the League, the answer must be that an institution established
for the fulfilment of a sacred trust cannot be presumed to lapse before
the achievement of its purpose. The responsibilities of both mandatory
and supervisor resulting from the mandates institution were complemen-
tary, and the disappearance of one or the other could not affect the
survival of the institution. That is why, in 1950, the Court remarked, in
connection with the obligations corresponding to the sacred trust:

“Their raison d'être and original object remain. Since their
fulfilment did not depend on the existence of the League of Nations,
they could not be brought to an end merely because this supervisory

20
33 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

organ ceased to exist. Nor could the right of the population to have
the Territory administered in accordance with these rules depend
thereon.” (.C.J. Reports 1950, p. 133.)

In the particular case, specific provisions were made and decisions taken
for the transfer of functions from the organization which was to be
wound up to that which came into being.

56. Within the framework of the United Nations an international
trusteeship system was established and it was clearly contemplated that
mandated territories considered as not yet ready for independence would
be converted into trust territories under the United Nations international
trusteeship system. This system established a wider and more effective
international supervision than had been the case under the mandates of
the League of Nations.

57. It would have been contrary to the overriding purpose of the
mandates system to assume that difficulties in the way of the replacement
of one régime by another designed to improve international supervision
should have been permitted to bring about, on the dissolution of the
League, a complete disappearance of international supervision. To
accept the contention of the Government of South Africa on this point
would have entailed the reversion of mandated territories to colonial
status, and the virtual replacement of the mandates régime by annexation,
so determinedly excluded in 1920.

58. These compelling considerations brought about the insertion in
the Charter of the United Nations of the safeguarding clause contained
in Article 80, paragraph 1, of the Charter, which reads as follows:

“I. Except as may be agreed upon in individual trusteeship
agreements, made under Articles 77, 79 and 81, placing each territory
under the trusteeship system, and until such agreements have been
concluded, nothing in this Chapter shall be construed in or of itself
to alter in any manner the rights whatsoever of any States or any
peoples or the terms of existing international instruments to which
Members of the United Nations may respectively be parties.”

59. A striking feature of this provision is the stipulation in favour of
the preservation of the rights of “any peoples’, thus clearly including
the inhabitants of the mandated territories and, in particular, their
indigenous populations. These rights were thus confirmed to have an
existence independent of that of the League of Nations. The Court, in
the 1950 Advisory Opinion on the International Status of South-West
Africa, relied on this provision to reach the conclusion that “‘no such
rights of the peoples could be effectively safeguarded without inter-

21
34 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

national supervision and a duty to render reports to a supervisory organ”
(C.J. Reports 1950, p. 137). In 1956 the Court confirmed the conclusion
that “the effect of Article 80 (1) of the Charter” was that of “preserving
the rights of States and peoples” (1.C.J. Reports 1956, p. 27).

60. Article 80, paragraph 1, of the Charter was thus interpreted by the
Court as providing that the system of replacement of mandates by
trusteeship agreements, resulting from Chapter XII of the Charter, shall
not “be construed in or of itself to alter in any manner the rights what-
soever of any States or any peoples”.

61. The exception made in the initial words of the provision, ‘Except
as may be agreed upon in individual trusteeship agreements, made under
Articles 77, 79 and 81, placing each territory under the trusteeship
system, and until such agreements have been concluded’’, established a
particular method for changing the status quo of a mandate régime. This
could be achieved only by means of a trusteeship agreement, unless the
“sacred trust” had come to an end by the implementation of its objective,
that is, the attainment of independent existence. In this way, by the use of
the expression “until such agreements have been concluded”’, a legal
hiatus between the two systems was obviated.

62. The final words of Article 80, paragraph 1, refer to ‘‘the terms of
existing international instruments to which Members of the United
Nations may respectively be parties’. The records of the San Francisco
Conference show that these words were inserted in replacement of the
words ‘any mandate” in an earlier draft in order to preserve “any rights
set forth in paragraph 4 of Article 22 of the Covenant of the League of
Nations”.

63. In approving this amendment and inserting these words in the
report of Committee I17/4, the States participating at the San Francisco
Conference obviously took into account the fact that the adoption of
the Charter of the United Nations would render the disappearance of the
League of Nations inevitable. This shows the common understanding and
intention at San Francisco that Article 80, paragraph 1, of the Charter
had the purpose and effect of keeping in force all rights whatsoever,
including those contained in the Covenant itself, against any claim as to
their possible lapse with the dissolution of the League.

64. The demise of the League could thus not be considered as an
unexpected supervening event entailing a possible termination of those
rights, entirely alien to Chapter XII of the Charter and not foreseen
by the safeguarding provisions of Article 80, paragraph 1. The Members
of the League, upon effecting the dissolution of that organization, did
not declare, or accept even by implication, that the mandates would be
cancelled or lapse with the dissolution of the League. On the contrary,

22
35 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

paragraph 4 of the resolution on mandates of 18 April 1946 clearly
assumed their continuation.

65. The Government of South Africa, in asking the Court to reappraise
the 1950 Advisory Opinion, has argued that Article 80, paragraph 1,
must be interpreted as a mere saving clause having a purely negative
effect.

66. If Article 80, paragraph 1, were to be understood as a mere inter-
pretative provision preventing the operation of Chapter XII from
affecting any rights, then it would be deprived of all practical effect.
There is nothing in Chapter X1f—which, as interpreted by the Court in
1950, constitutes a framework for future agreements—susceptible of
affecting existing rights of States or of peoples under the mandates
system. Likewise, if paragraph | of Article 80 were to be understood
as a mere saving clause, paragraph 2 of the same Article would have no
purpose. This paragraph provides as follows:

“2. Paragraph | of this Article shall not be interpreted as giving
grounds for delay or postponement of the negotiation and con-
clusion of agreements for placing mandated and other territories
under the trusteeship system as provided for in Article 77.”

This provision was obviously intended to prevent a mandatory Power
from invoking the preservation of its rights resulting from paragraph 1
as a ground for delaying or postponing what the Court described as
“the normal course indicated by the Charter, namely, conclude Trustee-
ship Agreements” (/.C.J. Reports 1950, p. 140). No method of inter-
pretation would warrant the conclusion that Article 80 as a whole is
meaningless.

67. In considering whether negative effects only may be attributed to
Article 80, paragraph 1, as contended by South Africa, account must be
taken of the words at the end of Article 76 (d) of the Charter, which,
as one of the basic objectives of the trusteeship system, ensures equal
treatment in commercial matters for all Members of the United Nations
and their nationals. The proviso “subject to the provisions of Article 80”
was included at the San Francisco Conference in order to preserve the
existing right of preference of the mandatory Powers in “C’’ mandates.
The delegate of the Union of South Africa at the Conference had pointed
out earlier that “the ‘open door’ had not previously applied to the ‘C'
mandates”, adding that “his Government could not contemplate its
application to their mandated territory”. If Article 80, paragraph 1,
had no conservatory and positive effects, and if the rights therein preserved
could have been extinguished with the disappearance of the League of
Nations, then the proviso in Article 76 (d) in fine would be deprived of
any practical meaning.

23
36 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

68. The Government of South Africa has invoked as “new facts” not
fully before the Court in 1950 a proposal introduced by the Chinese
delegation at the final Assembly of the League of Nations and another
submitted by the Executive Committee to the United Nations Preparatory
Commission, both providing in explicit terms for the transfer of super-
visory functions over mandates from the League of Nations to United
Nations organs. It is argued that, since neither of these two proposals
was adopted, no such transfer was envisaged.

69. The Court is unable to accept the argument advanced. The fact
that a particular proposal is not adopted by an international organ does
not necessarily carry with it the inference that a collective pronouncement
is made in a sense opposite to that proposed. There can be many rea-
sons determining rejection or non-approval. For instance, the Chinese
proposal, which was never considered but was ruled out of order, would
have subjected mandated territories to a form of supervision which went
beyond the scope of the existing supervisory authority in respect of
mandates, and could have raised difficulties with respect to Article 82 of
the Charter. As to the establishment of a Temporary Trusteeship Com-
mittee, it was opposed because it was felt that the setting up of such an
organ might delay the negotiation and conclusion of trusteeship agree-
ments. Consequently two United States proposals, intended to authorize
this Committee to undertake the functions previously performed by the
Mandates Commission, could not be acted upon. The non-establishment
of a temporary subsidiary body empowered to assist the General Assembly
in the exercise of its supervisory functions over mandates cannot be
interpreted as implying that the General Assembly lacked competence
or could not itself exercise its functions in that field. On the contrary, the
general assumption appeared to be that the supervisory functions over
mandates previously performed by the League were to be exercised by
the United Nations. Thus, in the discussions concerning the proposed
setting-up of the Temporary Trusteeship Committee, no observation
was made to the effect that the League’s supervisory functions had not
been transferred to the United Nations. Indeed, the South African
representative at the United Nations Preparatory Commission declared
on 29 November 1945 that ‘“‘it seemed reasonable to create an interim
body as the Mandates Commission was now in abeyance and countries
holding mandates should have a body to which they could report”.

70. The Government of South Africa has further contended that the
provision in Article 80, paragraph 1, that the terms of “existing inter-
national instruments” shall not be.construed as altered by anything in
Chapter XII of the Charter, cannot justify the conclusion that the duty
to report under the Mandate was transferred from the Council of the

24
37 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

League to the United Nations.

71. This objection fails to take into consideration Article 10 in Chapter
IV of the Charter, a provision which was relied upon in the 1950 Opinion
to justify the transference of supervisory powers from the League Council
to the General Assembly of the United Nations. The Court then said:

“The competence of the General Assembly of the United Nations
to exercise such supervision and to receive and examine reports is
derived from the provisions of Article 10 of the Charter, which
authorizes the General Assembly to discuss any questions or any
matters within the scope of the Charter and to make recommenda-
tions on these questions or matters to the Members of the United
Nations.” (.C.J. Reports 1950, p. 137.)

72. Since a provision of the Charter—Article 80, paragraph 1—had
maintained the obligations of the Mandatory, the United Nations had
become the appropriate forum for supervising the fulfilment of those
obligations. Thus, by virtue of Article 10 of the Charter, South Africa
agreed to submit its administration of South West Africa to the scrutiny
of the General Assembly, on the basis of the information furnished by
the Mandatory or obtained from other sources. The transfer of the
obligation to report, from the League Council to the General Assembly,
was merely a corollary of the powers granted to the General Assembly.
These powers were in fact exercised by it, as found by the Court in the
1950 Advisory Opinion. The Court rightly concluded in 1950 that—

‘... the General Assembly of the United Nations is legally qualified
to exercise the supervisory functions previously exercised by the
League of Nations with regard to the administration of the Territory,
and that the Union of South Africa is under an obligation to submit
to supervision and control of the General Assembly and to render
annual reports to it” U.C./. Reports 1950, p. 137).

In its 1955 Advisory Opinion on Voting Procedure on Questions relating
to Reports and Petitions concerning the Territory of South-West Africa,
after recalling some passages from the 1950 Advisory Opinion, the Court
stated:

“Thus, the authority of the General Assembly to exercise super-
vision over the administration of South-West Africa as a mandated
Territory is based on the provisions of the Charter.” U.C.J/. Reports
1955, p. 76.)

In the 1956 Advisory Opinion on Admissibility of Hearings of Petitioners
by the Committee on South West Africa, again after referring to certain
passages from the 1950 Advisory Opinion, the Court stated:

25
38

NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

“Accordingly, the obligations of the Mandatory continue unim-
paired with this difference, that the supervisory functions exercised
by the Council of the League of Nations are now to be exercised by
the United Nations.” (.C./. Reports 1956, p. 27.)

In the same Opinion the Court further stated:

‘...the paramount purpose underlying the taking over by the
General Assembly of the United Nations of the supervisory functions
in respect of the Mandate for South West Africa formerly exercised
by the Council of the League of Nations was to safeguard the sacred
trust of civilization through the maintenance of effective international
supervision of the administration of the Mandated Territory” (ibid,

p. 28).

73. With regard to the intention of the League, it is essential to recall

that, at its last session, the Assembiy of the League, by a resolution
adopted on 12 April 1946, attributed to itself the responsibilities of the
Council in the following terms:

“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.”

Thereupon, before finally dissolving the League, the Assembly on 18
April 1946, adopted a resolution providing as follows for the continuation
of the mandates and the mandates system:

26

“The Assembly...

3. Recognises that, on the termination of the League’s existence,
its functions with respect to the mandated territories will come to an
end, 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.”
39 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

As stated in the Court’s 1962 Judgment:

“,..the League of Nations in ending its own existence did not
terminate the Mandates but ... definitely intended to continue them
by its resolution of 18 April 1946” U.C./. Reports 1962, p. 334).

74, That the Mandate had not lapsed was also admitted by the Govern-
ment of South Africa on several occasions during the early period of
transition, when the United Nations was being formed and the League
dissolved. In particular, on 9 April 1946, the representative of South
Africa, after announcing his Government’s intention to transform South
West Africa into an integral part of the Union, declared before the
Assembly of the League:

‘In the meantime, the Union will continue to administer the
territory scrupulously in accordance with the obligations of the
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 com-
pliance with the letter of the Mandate. The Union Government will
nevertheless regard the dissolution of the League as in no way
diminishing its obligations under the Mandate, which it will continue
to discharge with the full and proper appreciation of its responsibil-
ities until such time as other arrangements are agreed upon con-
cerning the future status of the territory.”

The Court referred to this statement in its Judgment of 1962, finding
that “there could be no clearer recognition on the part of the Government
of South Africa of the continuance of its obligations under the Mandate
after the dissolution of the League of Nations” (.C./. Reports 1962,
p. 340).

75. Similar assurances were given on behalf of South Africa in a
memorandum transmitted on 17 October 1946 to the Secretary-General
of the United Nations, and in statements to the Fourth Committee of
the General Assembly on 4 November and 13 November 1946. Referring
to some of these and other assurances the Court stated in 1950: “These
declarations constitute recognition by the Union Government of the
continuance of its obligations under the Mandate and not a mere indica-
tion of the future conduct of that Government.” (.C.J. Reports 1950,
p. 135.)

76. Even before the dissolution of the League, on 22 January 1946,
the Government of the Union of South Africa had announced to the
General Assembly of the United Nations its intention to ascertain the

27
40 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

views of the population of South West Africa, stating that ‘when that
had been done, the decision of the Union would be submitted to the
General Assembly for judgment”. Thereafter, the representative of the
Union of South Africa submitted a proposal to the Second Part of the
First Session of the General Assembly in 1946, requesting the approval
of the incorporation of South West Africa into the Union. On 14 Decem-
ber 1946 the General Assembly adopted resolution 65 (I) noting—

“_.. with satisfaction that the Union of South Africa, by presenting
this matter to the United Nations, recognizes the interest and con-
cern of the United Nations in the matter of the future status of ter-
ritories now held under mandate”

and declared that it was—

‘*... unable to accede to the incorporation of the territory of South
West Africa in the Union of South Africa”.

The General Assembly, the resolution went on,

“Recommends that the mandated territory of South West Africa be
placed under the international trusteeship system and invites the
Government of the Union of South Africa to propose for the con-
sideration of the General Assembly a trusteeship agreement for the
aforesaid Territory.”

A year later the General Assembly, by resolution 141 (II) of I November
1947, took note of the South African Government’s decision not to
proceed with its plan for the incorporation of the Territory. As the Court
stated in 1950:

“By thus submitting the question of the future international status
of the Territory to the ‘judgment’ of the General Assembly as the
‘competent international organ’, the Union Government recognized
the competence of the General Assembly in the matter.” (CJ.
Reports 1950, p. 142.)

77. In the course of the following years South Africa’s acts and de-
clarations made in the United Nations in regard to South West Africa
were characterized by contradictions. Some of these acts and declarations
confirmed the recognition of the supervisory authority of the United
Nations and South Africa’s obligations towards it, while others clearly
signified an intention to withdraw such recognition. It was only on 11
July 1949 that the South African Government addressed to theSecretary-
General a letter in which it stated that it could “‘no longer see that any

28
41 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

real benefit is to be derived from the submission of special reports on
South West Africa to the United Nations and {had} regretfully come to
the conclusion that in the interests of efficient administration no further
reports should be forwarded”.

78. In the light of the foregoing review, there can be no doubt that,
as consistently recognized by this Court, the Mandate survived the demise
of the League, and that South Africa admitted as much for a number of
years. Thus the supervisory element, an integral part of the Mandate, was
bound to survive, and the Mandatory continued to be accountable for
the performance of the sacred trust. To restrict the responsibility of the
Mandatory to the sphere of conscience or of moral obligation would
amount to conferring upon that Power rights to which it was not entitled,
and at the same time to depriving the peoples of the Territory of rights
which they had been guaranteed. It would mean that the Mandatory would
be unilaterally entitled to decide the destiny of the people of South West
Africa at its discretion. As the Court, referring to its Advisory Opinion of
1950, stated in 1962:

“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.” (LC.J. Re-
ports 1962, p. 334.)

79. The cogency of this finding is well illustrated by the views present-
ed on behalf of South Africa, which, in its final submissions in the South
West Africa cases, presented as an alternative submission, “in the event
of it being held that the Mandate as such continued in existence despite
the dissolution of the League of Nations”,

“...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 rel-
ative to supervision by any organ of the United Nations or any
other organization or body” (7.C.J. Reports 1966, p. 16).

The principal submission, however, had been:

“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 there-
under.” (Ibid.)

29
42 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

80. In the present proceedings, at the public sitting of 15 March 1971,
the representative of South Africa summed up his Government’s position
in the following terms:

“Our contentions concerning the falling away of supervisory and
accountability provisions are, accordingly, absolute and unqualified.
On the other hand, our contentions concerning the possible lapse of
the Mandate as a whole are secondary and consequential and depend
on our primary contention that the supervision and. the accounta-
bility provisions fell away on the dissolution of the League.

In the present proceedings we accordingly make the formal sub-
mission that the Mandate has lapsed as a whole by reason of the
falling away of supervision by the League, but for the rest we assume
that the Mandate still continued...

... on either hypothesis we contend that after dissolution of the
League there no longer was any obligation to report and account
under the Mandate.”

He thus placed the emphasis on the “‘falling-away” of the ‘‘supervisory
and accountability provisions” and treated “the possible lapse of the
Mandate as a whole” as a ‘secondary and consequential” consideration.

81. Thus, by South Africa’s own admission, “supervision and account-
ability” were of the essence of the Mandate, as the Court had consis-
tently maintained. The theory of the lapse of the Mandate on the demise
of the League of Nations is in fact inseparable from the claim that there
is no obligation to submit to the supervision of the United Nations, and
vice versa. Consequently, both or either of the claims advanced, namely
that the Mandate has lapsed and/or that there is no obligation to submit
to international supervision by the United Nations, are destructive of the
very institution upon which the presence of South Africa in Namibia
rests, for:

“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.” (.C./. Re-
ports 1950, p. 133; cited in I.C.J. Reports 1962, p. 333.)

82. Of this South Africa would appear to be aware, as is evidenced by
its assertion at various times of other titles to justify its continued presence
in Namibia, for example before the General Assembly on 5 October 1966:

30
43 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

“South Africa has for a long time contended that the Mandate is
no longer legally in force, and that South Africa’s right to adminis-
ter the Territory is not derived from the Mandate but from military
conquest, together with South Africa’s openly declared and con-
sistent practice of continuing to administer the Territory as a sacred
trust towards the inhabitants.”

In the present proceedings the representative of South Africa maintained
on 15 March 1971:

“_.. if it is accepted that the Mandate has lapsed, the South African
Government would have the right to administer the Territory by
reason of a combination of factors, being (a) its original conquest;
(6) its long occupation; (c) the continuation of the sacred trust
basis agreed upon in 1920; and, finally (d) because its administra-
tion is to the benefit of the inhabitants of the Territory and is desired
by them. In these circumstances the South African Government can-
not accept that any State or organization can have a better title to
the Territory.”

83. These claims of title, which apart from other considerations are
inadmissible in regard to a mandated territory, lead by South Africa’s
own admission to a situation which vitiates the object and purpose of the
Mandate. Their significance in the context of the sacred trust has best
been revealed by a statement made by the representative of South Africa
in the present proceedings on 15 March 1971: “it is the view of the South
African Government that no legal provision prevents its annexing South
West Africa.” As the Court pointed out in its Advisory Opinion on the
International Status of South-West Africa, “the principle of non-annexa-
tion” was ‘‘considered to be of paramount importance” when the future of
South West Africa and other territories was the subject of decision after
the First World War (/.C.J. Reports 1950, p. 131). What was in consequence
excluded by Article 22 of the League Covenant is even less acceptable
today.

*
* *

84. Where the United Nations is concerned, the records show that,
throughout a period of twenty years, the General Assembly, by virtue of
the powers vested in it by the Charter, called upon the South African
Government to perform its obligations arising out of the Mandate.
On 9 February 1946 the General Assembly, by resolution 9 (I), invited
all States administering territories held under mandate to submit trustee-
ship agreements. All, with the exception of South Africa, responded by
placing the respective territories under the trusteeship system or offering

31
44 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

them independence. The General Assembly further made a special re-
commendation to this effect in resolution 65 (I) of 14 December 1946;
on 1 November 1947, in resolution 141 (ID, it “urged” the Government
of the Union of South Africa to propose a trusteeship agreement; by
resolution 227 (III) of 26 November 1948 it maintained its earlier re-
commendations. A year later, in resolution 337 (IV) of 6 December 1949,
it expressed “regret that the Government of the Union of South Africa
has withdrawn its previous undertaking to submit reports on its admin-
istration of the Territory of South West Africa for the information of
the United Nations”, reiterated its previous resolutions and invited
South Africa “‘to resume the submission of such reports to the General
Assembly”. At the same time, in resolution 338 (IV), it addressed spe-
cific questions concerning the international status of South West Africa
to this Court. In 1950, by resolution 449 (V) of 13 December, it accepted
the resultant Advisory Opinion and urged the Government of the Union
of South Africa “to take the necessary steps to give effect to the
Opinion of the International Court of Justice”. By the same resolution,
it established a committee “‘to confer with the Union of South Africa
concerning the procedural measures necessary for implementing the
Advisory Opinion ...”. In the course of the ensuing negotiations South
Africa continued to maintain that neither the United Nations nor any
other international organization had succeeded to the supervisory func-
tions of the League. The Committee, for its part, presented a proposal
closely following the terms of the Mandate and providing for imple-
mentation ‘through the United Nations by a procedure as nearly as
possible analogous to that which existed under the League of Nations, thus
providing terms no more extensive or onerous than those which existed
before”. This procedure would have involved the submission by South
Africa of reports to a General Assembly committee, which would further
set up a special commission to take over the functions of the Permanent
Mandates Commission. Thus the United Nations, which undoubtedly
conducted the negotiations in good faith, did not insist on the conclusion
of a trusteeship agreement; it suggested a system of supervision which
“should not exceed that which applied under the Mandates System . . .”.
These proposals were rejected by South Africa, which refused to accept
the principle of the supervision of its administration of the Territory
by the United Nations.

85. Further fruitless negotiations were held from 1952 to 1959. In
total, negotiations extended over a period of thirteen years, from 1946 to
1959. In practice the actual length of negotiations is no test of whether
the possibilities of agreement have been exhausted; it may be sufficient
to show that an early deadlock was reached and that one side adamantly
refused compromise. In the case of Namibia (South West Africa) this

32
45 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

stage had patently been reached long before the United Nations finally
abandoned its efforts to reach agreement. Even so, for so long as South
Africa was the mandatory Power the way was still open for it to seek an
arrangement. But that chapter came to an end with the termination of
the Mandate.

86. To complete this brief summary of the events preceding the present
request for advisory opinion, it must be recalled that in 1955 and 1956
the Court gave at the request of the General Assembly two further ad-
visory opinions on matters concerning the Territory. Eventually the
General Assembly adopted resolution 2145 (XXI) on the termination of
the Mandate for South West Africa. Subsequently the Security Council
adopted resolution 276 (1970), which declared the continued presence
of South Africa in Namibia to be illegal and called upon States to act
accordingly.

*
* *

87. The Government of France in its written statement and the
Government of South Africa throughout the present proceedings have
raised the objection that the General Assembly, in adopting resolution
2145 (XXT), acted ultra vires.

88. Before considering this objection, it is necessary for the Court to
examine the observations made and the contentions advanced as to
whether the Court should go into this question. It was suggested that
though the request was not directed to the question of the validity of the
General Assembly resolution and of the related Security Council resolu-
tions, this did not preclude the Court from making such an enquiry. On
the other hand it was contended that the Court was not authorized by the
terms of the request, in the light of the discussions preceding it, to go
into the validity of these resolutions. It was argued that the Court should
not assume powers of judicial review of the action taken by the other
principal organs of the United Nations without specific request to that
effect, nor act as a court of appeal from their decisions.

89. Undoubtedly, the Court does not possess powers of judicial review
or appeal in respect of the decisions taken by the United Nations organs
concerned. The question of the validity or conformity with the Charter
of General Assembly resolution 2145 (XXI) or of related Security
Council resolutions does not form the subject of the request for advisory
opinion. However, in the exercise of its judicial function and since
objections have been advanced the Court, in the course of its reasoning,
will consider these objections before determining any legal consequences
arising from those resolutions. —

90. As indicated earlier, with the entry into force of the Charter of
the United Nations a relationship was established between all Members
of the United Nations on the one side, and each mandatory Power on
the other. The mandatory Powers while retaining their mandates assumed,

33
46 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

under Article 80 of the Charter, vis-a-vis all United Nations Members,
the obligation to keep intact and preserve, until trusteeship agreements
were executed, the rights of other States and of the peoples of mandated
territories, which resulted from the existing mandate agreements and
related instruments, such as Article 22 of the Covenant and the League
Council’s resolution of 31 January 1923 concerning petitions. The man-
datory Powers also bound themselves to exercise their functions of ad-
ministration in conformity with the relevant obligations emanating from
the United Nations Charter, which member States have undertaken to
fulfil in good faith in all their international relations.

91. One of the fundamental principles governing the international
relationship thus established is that a party which disowns or does not
fulfil its own obligations cannot be recognized as retaining the rights
which it claims to derive from the relationship.

92. The terms of the preamble and operative part of resolution 2145
(XXT) leave no doubt as to the character of the resolution. In the pre-
amble the General Assembly declares itself “Convinced that the admin-
istration of the Mandated Territory by South Africa has been conducted in
a manner contrary” to the two basic international instruments directly
imposing obligations upon South Africa, the Mandate and the Charter
of the United Nations, as well as to the Universal Declaration of Human
Rights. In another paragraph of the preamble the conclusion is reached
that, after having insisted with no avail upon performance for more than
twenty years, the moment has arrived for the General Assembly to
exercise the right to treat such violation as a ground for termination.

93. In paragraph 3 of the operative part of the resolution the General
Assembly “ Declares that South Africa has failed to fulfil its obligations
in respect of the administration of the Mandated Territory and to ensure
the moral and material well-being and security of the indigenous in-
habitants of South West Africa and has, in fact, disavowed the Man-
date”. In paragraph 4 the decision is reached, as a consequence of the
previous declaration “that the Mandate conferred upon His Britannic
Majesty to be exercised on his behalf by the Government of the Union
of South Africa is therefore terminated .... (Emphasis added.) It is
this part of the resolution which is relevant in the present proceedings.

94. In examining this action of the General Assembly it is appropriate
to have regard to the general principles of international law regulating
termination of a treaty relationship on account of breach. For even if
the mandate is viewed as having the character of an institution, as is
maintained, it depends on those international agreements which created
the system and regulated its application. As the Court indicated in 1962
“this Mandate, like practically all other similar Mandates” was ‘“‘a special
type of instrument composite in nature and instituting a novel inter-
national régime. It incorporates a definite agreement .. .” (J.C.J. Reports
1962, p. 331). The Court stated conclusively in that Judgment that the

34
47 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

Mandate “...in fact and in law, is an international agreement having
the character of a treaty or convention” (/.C./. Reports 1962, p. 330).
The rules laid down by the Vienna Convention on the Law of Treaties
concerning termination of a treaty relationship on account of breach
(adopted without a dissenting vote) may in many respects be considered
as a codification of existing customary law on the subject. In the light of
these rules, only a material breach of a treaty justifies termination, such
breach being defined as:

“(a) a repudiation of the treaty not sanctioned by the present Con-
vention; or
(6) the violation of a provision essential to the accomplishment of
the object or purpose of the treaty” (Art. 60, para. 3).

95. General Assembly resolution 2145 (XXI) determines that both
forms of material breach had occurred in this case. By stressing that South
Africa ‘has, in fact, disavowed the Mandate”, the General Assembly
declared in fact that it had repudiated it. The resolution in question is
therefore to be viewed as the exercise of the right to terminate a relation-
ship in case of a deliberate and persistent violation of obligations which
destroys the very object and purpose of that relationship.

*
* *

96. It has been contended that the Covenant of the League of Nations
did not confer on the Council of the League power to terminate a man-
date for misconduct of the mandatory and that no such power could
therefore be exercised by the United Nations, since it could not derive
from the League greater powers than the latter itself had. For this ob-
jection to prevail it would be necessary to show that the mandates
system, as established under the League, excluded the application of
the general principle of law that a right of termination on account of
breach must be presumed to exist in respect of all treaties, except as
regards provisions relating to the protection of the human person con-
tained in treaties of a humanitarian character (as indicated in Art. 60,
para. 5, of the Vienna Convention). The silence of a treaty as to the
existence of such a right cannot be interpreted as implying the exclusion
of a right which has its source outside of the treaty, in general inter-
national law, and is dependent on the occurrence of circumstances which
are not normally envisaged when a treaty is concluded.

97. The Government of South Africa has contended that it was the
intention of the drafters of the mandates that they should not be revocable
even in cases of serious breach of obligation or gross misconduct on the
part of the mandatory. This contention seeks to draw support from the
fact that at the Paris Peace Conference a resolution was adopted in which
the proposal contained in President Wilson’s draft of the Covenant
regarding a right of appeal for the substitution of the mandatory was not

35
48 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

included. It should be recalled that the discussions at the Paris Peace
Conference relied upon by South Africa were not directly addressed
to an examination of President Wilson’s proposals concerning the
regulation of the mandates system in the League Covenant, and the
participants were not contesting these particular proposals. What took
place was a general exchange of views, on a political plane, regarding the
questions of the disposal of the former German colonies and whether the
principle of annexation or the mandatory principle should apply to them.

98. President Wilson’s proposed draft did not include a specific provi-
sion for revocation, on the assumption that mandates were revocable.
What was proposed was a special procedure reserving “to the people
of any such territory or governmental unit the right to appeal to the
League for the redress or correction of any breach of the mandate by the
mandatory State or agency or for the substitution of some other State
or agency, as mandatory’. That this special right of appeal was not in-
serted in the Covenant cannot be interpreted as excluding the application
of the general principle of law according to which a power of termina-
tion on account of breach, even if unexpressed, must be presumed to
exist as inherent in any mandate, as indeed in any agreement.

99. As indicated earlier, at the Paris Peace Conference there was op-
position to the institution of the mandates since a mandate would be
inherently revocable, so that there would be no guarantee of long-term
continuance of administration by the mandatory Power. The difficulties
thus arising were eventually resolved by the assurance that the Council
of the League would not interfere with the day-to-day administration
of the territories and that the Council would intervene only in case of a
fundamental breach of its obligations by the mandatory Power.

100. The revocability of a mandate was envisaged by the first proposal
which was made concerning a mandates system:

“In case of any flagrant and prolonged abuse of this trust the
population concerned should be able to appeal for redress to the
League, who should in a proper case assert its authority to the full,
even to the extent of removing the mandate and entrusting it to some
other State if necessary.” (J. C. Smuts, The League of Nations:
A Practical Suggestion, 1918, pp. 21-22.)

Although this proposal referred to different territories, the principle
remains the same. The possibility of revocation in the event of gross
violation of the mandate was subsequently confirmed by authorities on
international law and members of the Permanent Mandates Commission

36
49 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

who interpreted and applied the mandates system under the League of
Nations.

101. It has been suggested that, even if the Council of the League had
possessed the power of revocation of the Mandate in an extreme case,
it could not have been exercised unilaterally but only in co-operation
with the mandatory Power. However, revocation could only result from
a situation in which the Mandatory had committed a serious breach of
the obligations it had undertaken. To contend, on the basis of the prin-
ciple of unanimity which applied in the League of Nations, that in this
case revocation could only take place with the concurrence of the Man-
datory, would not only run contrary to the general principle of law gov-
erning termination on account of breach, but also postulate an im-
possibility. For obvious reasons, the consent of the wrongdoer to such
a form of termination cannot be required.

102. In a further objection to General Assembly resolution 2145 (XXD
it is contended that it made pronouncements which the Assembly, not
being a judicial organ, and not having previously referred the matter
to any such organ, was not competent to make. Without dwelling on the
conclusions reached in the 1966 Judgment in the South West Africa
contentious cases, it is worth recalling that in those cases the applicant
States, which complained of material breaches of substantive provisions
of the Mandate, were held not to ‘“‘possess any separate self-contained
right which they could assert... to require the due performance of the
Mandate in discharge of the ‘sacred trust’ ” (.C./. Reports 1966, pp. 29
and 51). On the other hand, the Court declared that: “...any diver-
gences of view concerning the conduct of a mandate were regarded as
being matters that had their place in the political field, the settlement of
which lay between the mandatory and the competent organs of the
League” (ibid., p. 45). To deny to a political organ of the United Nations
which is a successor of the League in this respect the right to act, on the
argument that it lacks competence to render what is described as a judicial
decision, would not only be inconsistent but would amount to a complete
denial of the remedies available against fundamental breaches of an
international undertaking.

103. The Court is unable to appreciate the view that the General
Assembly acted unilaterally as party and judge in its own cause. In the
1966 Judgment in the South West Africa cases, referred to above, it was
found that the function to call for the due execution of the relevant
provisions of the mandate instruments appertained to the League acting
as an entity through its appropriate organs. The right of the League
“in the pursuit of its collective, institutional activity, to require the due
performance of the Mandate in discharge of the ‘sacred trust’”’, was
specifically recognized (ibid., p. 29). Having regard to this finding, the
United Nations as a successor to the League, acting through its com-
petent organs, must be seen above all as the supervisory institution,
competent to pronounce, in that capacity, on the conduct of the man-

37
50 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

datory with respect to its international obligations, and competent to
act accordingly.

*
* *

104. It is argued on behalf of South Africa that the consideration set
forth in paragraph 3 of resolution 2145 (XXT) of the General Assembly,
relating to the failure of South Africa to fulfil its obligations in respect
of the administration of the mandated territory, called for a detailed
factual investigation before the General Assembly could adopt resolu-
tion 2145 (XXL) or the Court pronounce upon its validity. The failure of
South Africa to comply with the obligation to submit to supervision and
to render reports, an essential part of the Mandate, cannot be disputed in
the light of determinations made by this Court on more occasions
than one. In relying on these, as on other findings of the Court in previous
proceedings concerning South West Africa, the Court adheres to its
own jurisprudence.

*
* *

105. General Assembly resolution 2145 (XXI), after declaring the
termination of the Mandate, added in operative paragraph 4 “that South
Africa has no other right to administer the Territory’’. This part of the
resolution has been objected to as deciding a transfer of territory. That
in fact is not so. The pronouncement made by the General Assembly is
based on a conclusion, referred to earlier, reached by the Court in 1950:

“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.” U.C./. Reports 1950, p. 133.)

This was confirmed by the Court in its Judgment of 21 December 1962
in the South West Africa cases (Ethiopia v. South Africa; Liberia v.
South Africa) (1.C.J. Reports 1962, p. 333). Relying on these decisions of
the Court, the General Assembly declared that the Mandate having been
terminated ‘‘South Africa has no other right to administer the Territory”.
This is not a finding on facts, but the formulation of a legal situation. For
it would not be correct to assume that, because the General Assembly is
in principle vested with recommendatory powers, it is debarred from
adopting, in specific cases within the framework of its competence,
resolutions which make determinations or have operative design.

38
SI NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

106. By resolution 2145 (XXI) the General Assembly terminated the
Mandate. However, lacking the necessary powers to ensure the with-
drawal of South Africa from the Territory, it enlisted the co-operation of
the Security Council by calling the latter’s attention to the resolution,
thus acting in accordance with Article 11, paragraph 2, of the Charter.

107. The Security Council responded to the call of the General Assem-
bly. It “took note’? of General Assembly resolution 2145 (XXi) in the
preamble of its resolution 245 (1968); it took it “into account” in reso-
lution 246 (1968); in resolutions 264 (1969) and 269 (1969) it adopted
certain measures directed towards the implementation of General
Assembly resolution 2145 (XX1) and, finally, in resolution 276 (1970), it
reaffirmed resolution 264 (1969) and recalled resolution 269 (1969).

108. Resolution 276 (1970) of the Security Council, specifically
mentioned in the text of the request, is the one essential for the purposes
of the present advisory opinion. Before analysing it, however, it is
necessary to refer briefly to resolutions 264 (1969) and 269 (1969), since
these two resolutions have, together with resolution 276 (1970), a com-
bined and acumulative effect. Resolution 264 (1969), in paragraph 3 of its
operative part, calls upon South Africa to withdraw its administration
from Namibia immediately. Resolution 269 (1969), in view of South
Africa’s lack of compliance, after recalling the obligations of Members
under Article 25 of the Charter, calls upon the Government of South
Africa, in paragraph 5 of its operative part, “to withdraw its administra-
tion from the territory immediately and in any case before 4 October
1969”, The preamble of resolution 276 (1970) reaffirms General Assembly
resolution 2145 (XXT) and espouses it, by referring to the decision, not
merely of the General Assembly, but of the United Nations “‘that the
Mandate of South-West Africa was terminated””. In the operative part, after
condemning the non-compliance by South Africa with General Assembly
and Security Council resolutions pertaining to Namibia, the Security
Council declares, in paragraph 2, that “the continued presence of the
South African authorities in Namibia is illegal” and that consequently all
acts taken by the Government of South Africa ‘“‘on behalf of or concerning
Namibia after the termination of the Mandate are illegal and invalid”.
In paragraph 5 the Security Council “Calls upon all States, particularly
those which have economic and other interests in Namibia, to refrain
from any dealings with the Government of South Africa which are in-
consistent with operative paragraph 2 of this resolution”.

109. It emerges from the communications bringing the matter to the
Security Council’s attention, from the discussions held and particularly
from the text of the resolutions themselves, that the Security Council,
when it adopted these resolutions, was acting in the exercise of what it
deemed to be its primary responsibility, the maintenance of peace
and security, which, under the Charter, embraces situations which might

39
52 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

lead to a breach of the peace. (Art. 1, para. 1.) In the preamble of resolu-
tion 264 (1969) the Security Council was ‘Mindful of the grave conse-
quences of South Africa’s continued occupation of Namibia” and in
paragraph 4 of that resolution it declared “‘that the actions of the Govern-
ment of South Africa designed to destroy the national unity and territo-
rial integrity of Namibia through the establishment of Bantustans are
contrary to the provisions of the United Nations Charter”. In operative
paragraph 3 of resolution 269 (1969) the Security Council decided “that
the continued occupation of the territory of Namibia by the South Afri-
can authorities constitutes an aggressive encroachment on the authority
of the United Nations, . . .”’. In operative paragraph 3 of resolution 276
(1970) the Security Council declared further “that the defiant attitude of
the Government of South Africa towards the Council’s decisions under-
mines the authority of the United Nations”.

110. As to the legal basis of the resolution, Article 24 of the Charter
vests in the Security Council the necessary authority to take action such
as that taken in the present case. The reference in paragraph 2 of this
Article to specific powers of the Security Council under certain chapters
of the Charter does not exclude the existence of general powers to dis-
charge the responsibilities conferred in paragraph 1. Reference may be
made in this respect to the Secretary-General’s Statement, presented to
the Security Council on 10 January 1947, to the effect that ‘‘the powers of
the Council under Article 24 are not restricted to the specific grants of
authority contained in Chapters VI, VII, VIII and XH... the Members of
the United Nations have conferred upon the Security Council powers
commensurate with its responsibility for the maintenance of peace and
security. The only limitations are the fundamental principles and purposes
found in Chapter I of the Charter.”

111. As to the effect to be attributed to the declaration contained in
paragraph 2 of resolution 276 (1970), the Court considers that the quali-
fication of a situation as illegal does not by itself put an end to it. It can
only be the first, necessary step in an endeavour to bring the illegal situ-
ation to an end.

112. It would be an untenable interpretation to maintain that, once
such a declaration had been made by the Security Council under Article
24 of the Charter, on behalf of all member States, those Members would
be free to act in disregard of such illegality or even to recognize violations
of law resulting from it. When confronted with such an internationally
unlawful situation, Members of the United Nations would be expected to
act in consequence of the declaration made on their behalf. The question
therefore arises as to the effect of this decision of the Security Council for
States Members of the United Nations in accordance with Article 25 of
the Charter.

113. It has been contended that Article 25 of the Charter applies only

40
53 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

to enforcement measures adopted under Chapter VII of the Charter. It
is not possible to find in the Charter any support for this view. Article
25 is not confined to decisions in regard to enforcement action but applies
to “the decisions of the Security Council” adopted in accordance with
the Charter. Moreover, that Article is placed, not in Chapter VIF, but
immediately after Article 24 in that part of the Charter which deals with
the functions and powers of the Security Council. If Article 25 had refer-
ence solely to decisions of the Security Council concerning enforcement
action under Articles 41 and 42 of the Charter, that is to say, if it were
only such decisions which had binding effect, then Article 25 would be
superfluous, since this effect is secured by Articles 48 and 49 of the Charter.

114. It has also been contended that the relevant Security Council
resolutions are couched in exhortatory rather than mandatory language
and that, therefore, they do not purport to impose any legal duty on any
State nor to affect legally any right of any State. The language of a reso-
lution of the Security Council should be carefully analysed before a
conclusion can be made as to its binding effect. In view of the nature of
the powers under Article 25, the question whether they have been in fact
exercised is to be determined in each case, having regard to the terms of
the resolution to be interpreted, the discussions leading to it, the Charter
provisions invoked and, in general, all circumstances that might assist
in determining the legal consequences of the resolution of the Security
Council.

115. Applying these tests, the Court recalls that in the preamble of
resolution 269 (1969), the Security Council was “Mindful of its respon-
sibility to take necessary action to secure strict compliance with the
obligations entered into by States Members of the United Nations under
the provisions of Article 25 of the Charter of the United Nations”. The
Court has therefore reached the conclusion that the decisions made by
the Security Council in paragraphs 2 and 5 of resolutions 276 (1970), as
related to paragraph 3 of resolution 264 (1969) and paragraph 5 of reso-
lution 269 (1969), were adopted in conformity with the purposes and
principles of the Charter and in accordance with its Articles 24 and 25. The
decisions are consequently binding on all States Members of the United
Nations, which are thus under obligation to accept and carry them out.

116. In pronouncing upon the binding nature of the Security Council
decisions in question, the Court would recall the following passage in its
Advisory Opinion of 11 April 1949 on Reparation for Injuries Suffered
in the Service of the United Nations:

“The Charter has not been content to make the Organization
created by it merely a centre ‘for harmonizing the actions of nations
in the attainment of these common ends’ (Article 1, para. 4). It has
equipped that centre with organs, and has given it special tasks. It has
defined the position of the Members in relation to the Organization

41
54 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

by requiring them to give it every assistance in any action undertaken
by it (Article 2, para. 5), and to accept and carry out the decisions of
the Security Council.” (Z.C.J. Reports 1949, p. 178.)

Thus when the Security Council adopts a decision under Article 25 in
accordance with the Charter, it is for member States to comply with that
decision, including those members of the Security Council which voted
against it and those Members of the United Nations who are not members
of the Council. To hold otherwise would be to deprive this principal organ
of its essential functions and powers under the Charter.

x * x

117. Having reached these conclusions, the Court will now address
itself to the legal consequences arising for States from the continued
presence of South Africa in Namibia, notwithstanding Security Council
resolution 276 (1970). A binding determination made by a competent
organ of the United Nations to the effect that a situation is illegal cannot
remain without consequence. Once the Court is faced with such a situ-
ation, it would be failing in the discharge of its judicial functions if it did
not declare that there is an obligation, especially upon Members of the
United Nations, to bring that situation to an end. As this Court has held,
referring to one of its decisions declaring a situation as contrary to a
rule of international law: “This decision entails a legal consequence,
namely that of putting an end to an illegal situation” (.C.J. Reports 1951,
p. 82).

118. South Africa, being responsible for having created and maintained
a situation which the Court has found to have been validly declared
illegal, has the obligation to put an end to it. It is therefore under obliga-
tion to withdraw its administration from the Territory of Namibia. By
maintaining the present illegal situation, and occupying the Territory
without title, South Africa incurs international responsibilities arising
from a continuing violation of an international obligation. It also re-
mains accountable for any violations of its international obligations, or
of the rights of the people of Namibia. The fact that South Africa no
longer has any title to administer the Territory does not release it from
its obligations and responsibilities under international law towards other
States in respect of the exercise of its powers in relation to this Territory.
Physical control of a territory, and not sovereignty or legitimacy of title,
is the basis of State liability for acts affecting other States.

119. The member States of the United Nations are, for the reasons
given in paragraph 115 above, under obligation to recognize the ille-
gality and invalidity of South Africa’s continued presence in Namibia.
They are also under obligation to refrain from lending any support or any
form of assistance to South Africa with reference to its occupation of
Namibia, subject to paragraph 125 below.

42
55 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

120. The precise determination of the acts permitted or allowed—
what measures are available and practicable, which of them should be
selected, what scope they should be given and by whom they should be
applied-—is a matter which lies within the competence of the appropriate
political organs of the United Nations acting within their authority under
the Charter. Thus it is for the Security Council to determine any further
measures consequent upon the decisions already taken by it on the
question of Namibia. In this context the Court notes that at the same
meeting of the Security Council in which the request for advisory opinion
was made, the Security Council also adopted resolution 283 (1970) which
defined some of the steps to be taken. The Court has not been called upon
to advise on the legal effects of that resolution.

121. The Court will in consequence confine itself to giving advice
on those dealings with the Government of South Africa which, under
the Charter of the United Nations and general international law, should
be considered as inconsistent with the declaration of illegality and in-
validity made in paragraph 2 of resolution 276 (1970), because they may
imply a recognition that South Africa’s presence in Namibia is legal.

122. For the reasons given above, and subject to the observations
contained in paragraph 125 below, member States are under obligation
to abstain from entering into treaty relations with South Africa in all
cases in which the Government of South Africa purports to act on behalf
of or concerning Namibia. With respect to existing bilateral treaties,
member States must abstain from invoking or applying those treaties or
provisions of treaties concluded by South Africa on behalf of or con-
cerning Namibia which involve active intergovernmental co-operation.
With respect to multilateral treaties, however, the same rule cannot be
applied to certain general conventions such as those of a humanitarian
character, the non-performance of which may adversely affect the people
of Namibia. It will be for the competent international organs to take
specific measures in this respect.

123. Member States, in compliance with the duty of non-recognition
imposed by paragraphs 2 and 5 of resolution 276 (1970), are under
obligation to abstain from sending diplomatic or special missions to
South Africa including in their jurisdiction the Territory of Namibia,
to abstain from sending consular agents to Namibia, and to withdraw
any such agents already there. They should also make it clear to the
South African authorities that the maintenance of diplomatic or consular
relations with South Africa does not imply any recognition of its authority
with regard to Namibia.

124. The restraints which are implicit inthe non-recognition of South
Africa’s presence in Namibia and the explicit provisions of paragraph 5
of resolution 276 (1970) impose upon member States the obligation to
abstain from entering into economic and other forms of relationship

43
56 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

or dealings with South Africa on behalf of or concerning Namibia which
may entrench its authority over the Territory.

125. In general, the non-recognition of South Africa’s administration
of the Territory should not result in depriving the people of Namibia
of any advantages derived from international co-operation. In particular,
while official acts performed by the Government of South Africa on
behalf of or concerning Namibia after the termination of the Mandate
are illegal and invalid, this invalidity cannot be extended to those acts,
such as, for instance, the registration of births, deaths and marriages,
the effects of which can be ignored only to the detriment of the inhab-
itants of the Territory.

126. As to non-member States, although not bound by Articles 24 and
25 of the Charter, they have been called upon in paragraphs 2 and 5 of
resolution 276 (1970) to give assistance in the action which has been
taken by the United Nations with regard to Namibia. In the view of the
Court, the termination of the Mandate and the declaration of the illegality
of South Africa’s presence in Namibia are opposable to all States in
the sense of barring erga omnes the legality of a situation which is main-
tained in violation of international law: in particular, no State which
enters into relations with South Africa concerning Namibia may expect
the United Nations or its Members to recognize the validity or effects of
such relationship, or of the consequences thereof. The Mandate having
been terminated by decision of the international organization in which the
supervisory authority over its administration was vested, and South Afri-
ca’s continued presence in Namibia having been declared illegal, it is for
non-member States to act in accordance with those decisions.

127. As to the general consequences resulting from the illegal presence
of South Africa in Namibia, all States should bear in mind that the
injured entity is a people which must look to the international community
for assistance in its progress towards the goals for which the sacred trust
was instituted.

*
* *

128. In its oral statement and in written communications to the Court,
the Government of South Africa expressed the desire to supply the Court
with further factual information concerning the purposes and objectives
of South Africa’s policy of separate development or apartheid, contending
that to establish a breach of South Africa’s substantive international
obligations under the Mandate it would be necessary to prove that a
particular exercise of South Africa’s legislative or administrative powers
was not directed in good faith towards the purpose of promoting to the
utmost the well-being and progress of the inhabitants. It is claimed by
the Government of South Africa that no act or omission on its part
would constitute a violation of its international obligations unless it is

44
57 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

shown that such act or omission was actuated by a motive, or directed
towards a purpose other than one to promote the interests of the inhab-
itants of the Territory.

129. The Government of South Africa having made this request, the
Court finds that no factual evidence is needed for the purpose of deter-
mining whether the policy of apartheid as applied by South Africa in
Namibia is in conformity with the international obligations assumed by
South Africa under the Charter of the United Nations. In order to deter-
mine whether the laws and decrees applied by South Africa in Namibia,
which are a matter of public record, constitute a violation of the purposes
and principles of the Charter of the United Nations, the question of
intent or governmental discretion is not relevant; nor is it necessary
to investigate or determine the effects of those measures upon the welfare
of the inhabitants.

130. It is undisputed, and is amply supported by documents annexed
to South Africa’s written statement in these proceedings, that the official
governmental policy pursued by South Africa in Namibia is to achieve
a complete physical separation of races and ethnic groups in separate
areas within the Territory. The application of this policy has required,
as has been conceded by South Africa, restrictive measures of control
officially adopted and enforced in the Territory by the coercive power of
the former Mandatory. These measures establish limitations, exclusions
or restrictions for the members of the indigenous population groups in
respect of their participation in certain types of activities, fields of
study or of training, labour or employment and also submit them to
restrictions or exclusions of residence and movement in large parts of
the Territory.

131. Under the Charter of the United Nations, the former Mandatory
had pledged itself to observe and respect, in a territory having an inter-
national status, human rights and fundamental freedoms for all without
distinction as to race. To establish instead, and to enforce, distinctions,
exclusions, restrictions and limitations exclusively based on grounds of
race, colour, descent or national or ethnic origin which constitute a denial
of fundamental human rights is a flagrant violation of the purposes and
principles of the Charter.

*
* *

132. The Government of South Africa also submitted a request that
a plebiscite should be held in the Territory of Namibia under the joint
supervision of the Court and the Government of South Africa (para. 16
above). This proposal was presented in connection with the request to
submit additional factual evidence and as a means of bringing evidence
before the Court. The Court having concluded that no further evidence

45
58 NAMIBIA (S.W. AFRICA) (ADVISORY OPINION)

was required, that the Mandate was validly terminated and that in
consequence South Africa’s presence in Namibia is illegal and its acts
on behalf of or concerning Namibia are illegal and invalid, it follows
that it cannot entertain this proposal.

133. For these reasons,
THE CourRT Is OF OPINION,
in reply to the question:

“What are the legal consequences for States of the continued
presence of South Africa in Namibia, notwithstanding Security
Council resolution 276 (1970)?”

by 13 votes to 2,

(1) that, the continued presence of South Africa in Namibia being illegal,
South Africa is under obligation to withdraw its administration from
Namibia immediately and thus put an end to its occupation of the
Territory;

by 11 votes to 4,

(2) that States Members of the United Nations are under obligation
to recognize the illegality of South Africa’s presence in Namibia and
the invalidity of its acts on behalf of or concerning Namibia, and
to refrain from any acts and in particular any dealings with the
Government of South Africa implying recognition of the legality of,
or lending support or assistance to, such presence and administra-
tion;

(3) that it is incumbent upon States which are not Members of the
United Nations to give assistance, within the scope of subparagraph
(2) above, in the action which has been taken by the United Nations
with regard to Namibia.

Done in English and in French, the English text being authoritative,
at the Peace Palace, The Hague, this twenty-first day of June, one
thousand nine hundred and seventy-one, in two copies, one of which
will be placed in the archives of the Court and the other transmitted to the
Secretary-General of the United Nations.

(Signed) ZAFRULLA KHAN,
President.

(Signed) S. AQUARONE,
Registrar.

46
59 NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

President Sir Muhammad ZAFRULLA KHAN makes the following
declaration:

I am in entire agreement with the Opinion of the Court but would
wish to add some observations on two or three aspects of the presenta-
tion made to the Court on behalf of South Africa.

It was contended that under the supervisory system as devised in the
Covenant of the League and the different mandate agreements, the
mandatory could, in the last resort, flout the wishes of the Council of
the League by casting its vote in opposition to the directions which
the Council might propose to give to the mandatory. The argument
runs that this system was deliberately so devised, with open eyes, as to
leave the Council powerless in face of the veto of the mandatory if the
latter chose to exercise it. In support of this contention reliance was
placed on paragraph 5 of Article 4 of the Covenant of the League by
virtue of which any Member of the League not represented on the
Council was to be invited to send a representative to sit as a member
at any meeting of the Council during the consideration of matters
specially affecting the interests of that Member. This entitled the manda-
tory to sit as a member at any meeting of the Council in which a matter
affecting its interests as a mandatory came under consideration. Under
paragraph | of Article 5 of the Covenant decisions of the Council
required the agreement of all the Members of the League represented
at the meeting. This is known as the unanimity rule and by virtue thereof
it was claimed that a mandatory possessed a right of veto when attend-
ing a meeting of the Council in pursuance of paragraph 5 of Article 4
and consequently the last word on the manner and method of the
administration of the mandate rested with the mandatory. This conten-
tion is untenable. Were it well founded it would reduce the whole system
of mandates to mockery. As the Court, in its Judgment of 1966, observed:

“In practice, the unanimity rule was frequently not insisted upon,
or its impact was mitigated by a process of give-and-take, and by
various procedural devices to which both the Council and the
mandatories lent themselves. So far as the Court’s information
goes, there never occurred any case in which a mandatory ‘vetoed’
what would otherwise have been a Council decision. Equally, how-
ever, much trouble was taken to avoid situations in which the
mandatory would have been forced to acquiesce in the views of
the rest of the Council short of casting an adverse vote. The occa-
sional deliberate absence of the mandatory from a meeting, enabled
decisions to be taken that the mandatory might have felt obliged
to vote against if it had been present. This was part of the above-
mentioned process for arriving at generally acceptable conclusions.”
(C.J. Reports 1966, pp. 44-45.)

47
60 NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

The representative of South Africa, in answer to a question by a
Member of the Court, confessed that there was not a single case on
record in which the representative of a mandatory Power ever cast a
negative vote in a meeting of the Council so as to block a decision of
the Council. It is thus established that in practice the last word always
rested with the Council of the League and not with the mandatory.

The Covenant of the League made ample provision to secure the
effectiveness of the-Covenant and conformity to its provisions in respect
of the obligations entailed by membership of the League. A Member
of the League which had violated any covenant of the League could
be declared to be no longer a Member of the League by a vote of the
Council concurred in by the representatives of all the other Members of
the League represented thereon (para. 4, Art. 16, of the Covenant).

The representative of South Africa conceded that:

“_..if a conflict between a mandatory and the Council occurred
and if all the Members of the Council were of the opinion that the
mandatory had violated a covenant of the League, it would have
been legally possible for the Council to expel the mandatory from
the League and thereafter decisions of the Council could no longer
be thwarted by the particular mandatory—for instance, a decision
to revoke the mandate. The mandatory would then no longer be a
Member of the League and would then accordingly no longer be
entitled to attend and vote in Council meetings.

... We agree that by expelling a mandatory the Council could have
overcome the practical or mechanical difficulties created by the
unanimity requirement.” (Hearing of 15 March 1971.)

It was no doubt the consciousness of this position which prompted
the deliberate absence of a mandatory from a meeting of the Council
of the League which enabled the Council to take decisions that the
mandatory might have felt obliged to vote against if it had been present.

If a mandatory ceased to be a Member of the League and the Council
felt that the presence of its representative in a meeting of the Council
dealing with matters affecting the mandate would be helpful, it could
still be invited to attend as happened in the case of Japan after it ceased
to be a Member of the League. But it could not attend as of right under
paragraph 5 of Article 4 of the Covenant.

In addition, if need arose the Covenant could be amended under
Article 26 of the Covenant. In fact no such need arose but the authority
was provided in the Covenant. It would thus be idle to contend that the
mandates system was deliberately devised, with open eyes, so as to leave
the Council of the League powerless against the veto of the mandatory
if the latter chose to exercise it.

Those responsible for the Covenant were anxious and worked hard

48
61 NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

to institute a system which would be effective in carrying out to the
full the sacred trust of civilization. Had they deliberately devised a
framework which might enable a mandatory so inclined to defy the
system with impunity, they would have been guilty of defeating the
declared purpose of the mandates system and this is not to be thought of;
nor is it to be imagined that these wise statesmen, despite all the care
that they took and the reasoning and persuasion that they brought into
play, were finally persuaded into accepting as reality that which could
so easily be turned into a fiction.

*
* *

In my view the supervisory authority of the General Assembly of the
United Nations in respect of the mandated territory, being derived from
the Covenant of the League and the Mandate Agreement, is not restricted
by any provision of the Charter of the United Nations. The extent of
that authority must be determined by reference to the relevant provisions
of the Covenant of the League and the Mandate Agreement. The Generai
Assembly was entitled to exercise the same authority in respect of the
administration of the Territory by the Mandatory as was possessed by
the Council of the League and its decisions and determinations in that
respect had the same force and effect as the decisions and determinations
of the Council of the League. This was well illustrated in the case of
General Assembly resolution 289 (IV), adopted on 21 November 1949
recommending that Libya shall become independent as soon as possible
and in any case not later than I January 1952. A detailed procedure
for the achievement of this objective was laid down, including the
appointment by the General Assembly of a United Nations Commis-
sioner in Libya and a Council to aid and advise him, etc. All the recom-
mendations contained in this resolution constituted binding decisions;
decisions which had been adopted in accordance with the provisions of
the Charter but whose binding character was derived from Annex XI
to the Treaty of Peace with Italy.

Pa
* *

The representative of South Africa, during the course of his oral sub-
mission, refrained from using the expression “apartheid” but urged:

“,..South Africa is in the position that its conduct would be
unlawful if the differentiation which it admittedly practises should
be directed at, and have the result of subordinating the interests
of one or certain groups on a racial or ethnic basis to those of
others,...If that can be established in fact, then South Africa
would be guilty of violation of its obligations in that respect, other-
wise not.” (Hearing of 17 March 1971.)

49
62 NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

The policy of apartheid was initiated by Prime Minister Malan and
was then vigorously put into effect by his successors, Strijdom and
Verwoerd. It has been continuously proclaimed that the purpose and
object of the policy are the maintenance of White domination. Speaking
to the South African House of Assembly, as late as 1963, Dr. Verwoerd
said:

“Reduced to its simplest form the problem is nothing else than
this: We want to keep South Africa White ... Keeping it White can
only mean one thing, namely, White domination, not leadership, not
guidance, but control, supremacy. If we are agreed that it is the
desire of the people that the White man should be able to continue
to protect himself by White domination . . . we say that it can be
achieved by separate development.” (/.C./.. Pleadings, South West
Africa, Vol. IV, p. 264.)

South Africa’s reply to this in its Rejoinder in the 1966 cases was in effect
that these and other similar pronouncements were qualified by ‘the
promise to provide separate homelands for the Bantu groups”’ wherein the
Bantu would be free to develop his capacities to the same degree as the
White could do in the rest of the country. But this promise itself was
always subject to the qualification that the Bantu homelands would
develop under the guardianship of the White. In this connection it was
urged that in 1961 the “Prime Minister spoke of a greater degree of
ultimate independence for Bantu homelands than he had mentioned a
decade earlier’. This makes little difference in respect of the main purpose
of the policy which continued to be the domination of the White.

It needs to be remembered, however, that the Court is not concerned
in these proceedings with conditions in South Africa. The Court is
concerned with the administration of South West Africa as carried on
by the Mandatory in discharge of his obligations under the Mandate
which prescribed that the well-being and development of people who were
not yet able to stand by themselves under the strenuous conditions of the
modern world constituted a sacred trust of civilization and that the best
method of giving effect to this principle was that the tutelage of such
peoples should be entrusted to advanced nations who, by reason of their
resources, their experience and their geographical position could best
undertake this responsibility (Art. 22, paras. 1 and 2, of the Covenant of
the League of Nations).

The administration was to be carried on “in the interests of the indi-
genous population” (para. 6, Art. 22). For the discharge of this obligation
it is not enough that the administration should believe in good faith that
the policy it proposes to follow is in the best interests of all sections of the
population. The supervisory authority must be satisfied that it is in the

50
63 NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

best interests of the indigenous population of the Territory. This follows
from Article 6 of the Mandate Agreement for South West Africa, read
with paragraph 6 of Article 22 of the Covenant.

The representative of South Africa, while admitting the right of the
people of South West Africa to self-determination, urged in his oral
statement that the exercise of that right must take into full account the
limitations imposed, according to him, on such exercise by the tribal and
cultural divisions in the Territory. He concluded that in the case of South
West Africa self-determination “may well find itself practically restricted
to some kind of autonomy and local self-government within a larger
arrangement of co-operation” (hearing of 17 March 1971). This in effect
means a denial of self-determination as envisaged in the Charter of the
United Nations.

Whatever may have been the conditions in South Africa calling for
special measures, those conditions did not exist in the case of South West
Africa at the time when South Africa assumed the obligation of a manda-
tory in respect of the Territory, nor have they come into existence since.
In South West Africa the small White element was not and is not indi-
genous to the Territory. There can be no excuse in the case of South West
Africa for the application of the policy of apartheid so far as the interests
of the White population are concerned. It is claimed, however, that the
various indigenous groups of the population have reached different stages
of development and that there are serious ethnic considerations which call
for the application of the policy of separate development of each group.
The following observations of the Director of the Institute of Race
Relations, London, are apposite in this context:

“... White South African arguments are based on the different
stages of development reached by various groups of people. It is
undisputed fact that groups have developed at different paces in
respect of the control of environment (although understanding of
other aspects of life has not always grown at the same pace). But
the aspect of South African thought which is widely questioned
elsewhere is the assumption that an individual is permanently limited
by the limitations of his group. His ties with it may be strong; indeed,
when considering politics and national survival, the assumption that
they will be strong is altogether reasonable. Again, as a matter of
choice, people may prefer to mix socially with those of their own
group, but to say that by law people of one group must mix with no
others can really only proceed from a conviction not only that the
other groups are inferior but that every member of each of the other
groups is permanently and irremediably inferior. It is this that
rankles. ‘Separate but equal’ is possible so long as it is a matter of
choice by both parties; legally imposed by one, it must be regarded
by the other as a humiliation, and far more so if it applies not only

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NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

to the group as a whole but to individuals. In fact, of course, what
separate development has meant has been anything but equal.

These are some reasons why it will be hard to find natives of
Africa who believe that to extend the policy of separate development
to South West Africa even more completely than at present is in the
interest of any but the White inhabitants.” (Quoted in /.C.J. Pleadings,
South West Africa, Vol. IV, p. 339.)

*
* ok

Towards the close of his oral presentation the representative of South
Africa made a plea to the Court in the following terms:

“In our submission, the general requirement placed by the
Charter on all United Nations activities is that they must further
peace, friendly relations, and co-operation between nations, and
especially between member States. South Africa, as a member
State, is under a duty to contribute towards those ends, and she
desires to do so, although she has no intention of abdicating what she
regards as her responsibilities on the sub-continent of southern
Africa.

If there are to be genuine efforts at achieving a peaceful solution,
they will have to satisfy certain criteria. They will have to respect
the will of the self-determining peoples of South West Africa. They
will have to take into account the facts of geography, of economics,
of budgetary requirements, of the ethnic conditions and of the state
of development.

If this Court, even in an opinion on legal questions, could indicate
the road towards a peaceful and constructive solution along these
lines, then the Court would have made a great contribution, in our
respectful submission, to the cause of international peace and security
and, more, to the cause of friendly relations amongst not only the
nations but amongst all men.” (Hearing of 5 March 1971.)

The representative of the United States of America, in his oral presenta-
tion, observed that:

52

‘,.. the question of holding a free and proper plebiscite under
appropriate auspices and with conditions and arrangements which
would ensure a fair and informed expression of the will of the
people of Namibia deserves study. It is a matter which might be
properly submitted to the competent political organs of the United
Nations, which have consistently manifested their concern that the
65 NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

Namibians achieve self-determination. The Court may wish to so
indicate in its opinion to the Security Council.” (Hearing of 9 March
1971.)

The Court having arrived at the conclusion that the Mandate has been
terminated and that the presence of South Africa in South West Africa is
illegal, I would, in response to the plea made by the representative of
South Africa, suggest that South Africa should offer to withdraw its
administration from South West Africa in consultation with the United
Nations so that a process of withdrawal and substitution in its place of
United Nations’ control may be agreed upon and carried into effect with
the minimum disturbance of present administrative arrangements. It
should also be agreed upon that, after the expiry of a certain period but
not later than a reasonable time-limit thereafter, a plebiscite may be held
under the supervision of the United Nations, which should ensure the
freedom and impartiality of the plebiscite, to ascertain the wishes of the
inhabitants of the Territory with regard to their political future. If the
result of the plebiscite should reveal a clear preponderance of views in
support of a particular course and objective, that course should be adop-
ted so that the desired objective may be achieved as early as possible.

South Africa’s insistence upon giving effect to the will of the peoples
of South West Africa proceeds presumably from the conviction that an
overwhelming majority of the peoples of the Territory desire closer
political integration with the Republic of South Africa. Should that
prove in fact to be the case the United Nations, being wholly committed
to the principle of self-determination of peoples, would be expected to
readily give effect to the clearly expressed wishes of the peoples of the
Territory. Should the result of the plebiscite disclose their preference for
a different solution, South Africa should equally readily accept and
respect such manifestation of the will of the peoples concerned and should
co-operate with the United Nations in giving effect to it.

The Government of South Africa, being convinced that an overwhelming
majority of the peoples of South West Africa truly desire incorporation
with the Republic, would run little risk of a contrary decision through the
adoption of the procedure here suggested. If some such procedure is
adopted and the conclusion that may emerge therefrom, whatever it may
prove to be, is put into effect, South Africa would have vindicated itself
in the eyes of the world and in the estimation of the peoples of South
West Africa, whose freely expressed wishes must be supreme. There would
still remain the possibility, and, if South Africa’s estimation of the situa-
tion is close enough to reality, the strong probability, that once the
peoples of South West Africa have been put in a position to manage their
own affairs without any outside influence or control and they have had
greater experience of the difficulties and problems with which they would
be confronted, they may freely decide, in the exercise of their sovereignty,
to establish a closer political relationship with South Africa. The adoption

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of the course here suggested would indeed make a great contribution “to
the cause of international peace and security and, more, to the cause of
friendly relations amongst not only the nations but amongst all men”.

Vice-President AMMouNand Judges PADILLA NERVO, PETREN, ONYEAMA,
DILLARD and DE CASTRO append separate opinions to the Opinion of
the Court.

Judges Sir Gerald FITZMAURICE and Gros append dissenting opinions
to the Opinion of the Court.

(Initialled) Z.K.
(Initialled) S.A.

54