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Oppenheim's International Law - Volume 1 Peace, 9th Edition edited by Jennings, Robert; Watts KCMG QC, Arthur (19th June 2008)

Part 1 The subjects of international law, Ch.2 International persons, Mandated Areas

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 19 April 2019

Subject(s):
Jurisdiction of states, nationality principle — Trust territory and mandate

Mandated Areas

Schücking und Wehberg, pp 688–711 Redslob, Théorie de la Société des Nations (1927), pp 175–216 H Lauterpacht, Analogies, §§ 84–86 Millot, Les Mandats internationaux (1924) Diena, Les Mandats internationaux (1925), and Hag R, 5 (1924), iv, pp 215–63 Stoyanovsky, La Théorie générale des mandats internationaux (1925) Schneider, Das völkerrechtliche Mandat (1926) Vallini, I mandati internazionali (1923) Balladore Pallieri, I mandati della Società délle Nazioni (1928) Gsell-Trümpi, Zur rechtlichen Natur der Völkerbundsmandate (1928) Van Rees, Les Mandats internationaux (vol i, Le Contrôle international, 1927) (vol ii, Les Principes généraux, 1928) Van Maanen-Helmer, The Mandates System in Relation to Africa and the Pacific Islands (1929) Wright, Mandates under the League of Nations (1930) (a leading treatise) Margolith, The International Mandates (1930) Bentwich, The Mandates System (1930), and Hag R, 29 (1929), iv, pp 119–82 Pic, Le Régime du mandat (1932) Pelichet, La Personnalité internationale distincte des collectivités sous mandat (1932) Comisetti, Mandats et Souveraineté (1934) Monarca, L’Appartenenza della sovranità sut territori sotto mandato (1936) Duncan Hall, Mandates, Dependencies and Trusteeships (1948) Rolin, RI, 3rd series, 1 (1920), pp 329–63 Lewis, LQR, 39 (1923), pp 458–75 Baty, BY, 1921–22, pp 109–21 Corbett, ibid (1924), pp 128–36 Wright, AJ, 17 (1923), pp 691–703; 18 (1924), pp 306–15; 20 (1926), pp 768–72 Bileski, ZV, 12 (1923), pp 65–85, and 13 (1924), pp 77–102 and ZöR, 13 (1933), pp 8–67 Lee, Grotius Society, 12 (1927), pp 31–48 Buza, ZöR, 6 (1926), pp 235–45 Rolin, Annuaire, 34 (1928), pp 33–58 Tachi, RI (Paris), 14 (1934), pp 337–60 Bentwich, ZöV, 4 (1934), pp 277–95 Hales, Grotius Society, 23 (1937), pp 85–26; 25 (1939), pp 185–284; and 26 (1940), pp 153–210 Haas, International Organisation, 6 (1952), pp 521–26 Upthegrove, Empire by Mandate (1954) Whiteman, Digest, 1, pp 598–731 Chowdhuri, International Mandates and Trusteeship Systems (1955) Verzijl, International Law in Historical Perspective, 2 (1969), pp 545–73 Rousseau, Droit international public, 2 (1974), pp 378–98 Crawford, The Creation of States in International Law (1979), pp 335–55 See also, § 88, n 2, as to the Mandate for South West Africa (Namibia).

§ 86  The general features of the mandate system

The mandate system was adopted at the end of the First World War for dealing with the colonies and some other territories of Germany and Turkey which it was decided to detach from (p. 296) them.1 It was embodied in Article 22 of the Covenant of The League of Nations, which was an integral part of the treaties of peace with Germany, Austria, Bulgaria, and Hungary.2 Under this system these detached territories were not in the ownership of any state, but were entrusted to certain states called ‘mandatory states,’ to administer on behalf of the League upon the conditions laid down in written agreements, called mandates, between the League and each mandatory.3 In conformity with the Charter of the United Nations the system of mandates has been replaced by the international trusteeship system, described below.4

The territories to be placed under the mandates system were at varying stages of political development. Accordingly, Article 22 of the Covenant provided for three categories of mandate, known as — in descending order of political individuality — Type ‘A’, ‘B’ and ‘C’.5

A territory, by being placed under a mandate was not thereby annexed by the mandatory.6 The mandatory was precluded by the terms of the mandate from (p. 297) doing a number of things which an owner of territory can lawfully do. That Germany and Turkey divested themselves of all rights of ownership in the mandated areas was clear. That the mandatories had not acquired all of those rights was equally clear. This was so even in the class of mandates most closely associated with the territory of the mandatory. Thus in the case concerning the Status of South West Africa the International Court of Justice held that the conferment of the mandate over that territory upon South Africa did not involve any cession or transfer of territory to the Union of South Africa.7 Type ‘A’ mandates possessed a sufficient degree of separate status to enjoy a limited treaty-making capacity.8

(p. 298) The dominant element was that of trusteeship for the inhabitants of the mandated area: ‘peoples not yet able to stand by themselves under the strenuous conditions of the modern world.’ In the words of the International Court of Justice in the case concerning the Status of South West Africa: ‘the Mandate was created, in the interest of the inhabitants of the territory, and of humanity in general, as an international institution with an international object — a sacred trust of civilisation9 … The international rules regulating the Mandate constituted an international status for the Territory…’.10 For that reason, amongst others, the principal obligations of the mandatory, including those relating to international supervision, were held not to have been abrogated by the dissolution of the League of Nations.11

The acceptance of a mandate involved the assumption of legal, and not merely moral, obligations, and, as a corollary of the trust, securities for its performance in the form of legal accountability for its discharge and fulfilment.12 The mandate system was under the supervision of the Council of the League, advised and assisted by the Permanent Mandates Commission. The inhabitants of a mandated area had a right to petition the League, through procedures which were laid down. All the mandates contained a clause providing that any dispute between a mandatory and a member of the League which could not be settled by negotiation could be referred by either party to the Permanent Court of International Justice.13

§ 87  National status of the inhabitants

Article 22 of the Covenant did not directly touch on the question of the national status of the inhabitants.1 However, the renunciation by Germany and Turkey of their rights in respect of the (p. 299) territories placed under mandate, suggested a dereliction rather than a cession:2 and it seems that the effect of these clauses was to divest the inhabitants of these territories (apart from the special case of the German subjects of European origin)3 of their former German or Turkish nationality and not to invest them automatically with any new nationality. In April 1923 the Council of the League adopted certain resolutions4 with regard to the national status of the inhabitants of ‘B’ and ‘C’ mandated areas, the substance of which was that they had a distinct status from that of the mandatory’s nationals and, while not disabled from obtaining individual naturalisation from the mandatory, did not automatically become invested with its nationality. In the case of the ‘C’ mandated area of South West Africa, the mandatory, with the consent of the Council of the League and with the assent of the German Government, passed legislation offering collective naturalisation to all persons of German origin, subject to the right of any of them to decline the British nationality offered to them.5

In the case of all the ‘A’ mandates the inhabitants of the mandated areas acquired a new nationality: in Iraq (which was then a mandated territory), as the result of the Iraq Law of 9 October 1924; in Palestine, where by a British Order in Council of 24 July 1925, Palestine ‘citizenship’6 was created;7 and in Syria and Lebanon, in which case the existence of a distinct nationality was recognised by (p. 300) Article 3 of the mandate, and was established by decrees of the French High Commissioner. On the other hand, the ‘B’ and ‘C’ mandated areas did not mint a nationality of their own.8

§ 88  South West Africa (Namibia)

It was envisaged that, with the dissolution of the League of Nations and the creation of the United Nations, those mandated territories which had not become independent should be placed under the trusteeship system of the United Nations.1 South Africa alone of the mandatory powers refused to place her ‘C’ mandated territory of South West Africa2 under the trusteeship system, and invoked the special position of her mandated territory as a reason for making it part of her territory, subject to the proposed consultation of its inhabitants. There was no disposition on the part of the members of the Assembly to acknowledge such right of incorporation and South Africa refrained from annexing the territory.3

(p. 301) When in 1950 the International Court of Justice found by a majority, in its Advisory Opinion on the Status of South West Africa,4 that there was no legal obligation5 upon South Africa to conclude a trusteeship agreement for the territory held by it under a League of Nations mandate, it affirmed at the same time, unanimously, that South Africa, acting alone, had no competence to modify the international status of that territory and that the competence to determine and modify that status rested with South Africa acting with the consent of the United Nations. The Court also held that South Africa continued to be bound by the international obligations laid down in Article 22 of the Covenant of the League of Nations and in the mandate for South West Africa as well as by the obligation to transmit petitions from the inhabitants of that territory. The Court found that the main supervisory functions of the League of Nations with respect to the mandated territories devolved upon the United Nations6 with the result that South Africa was under an obligation to furnish to the United Nations for examination reports on its administration of the territory held under a mandate from the League. The Court refused to admit that the obligation to submit to supervision had disappeared merely because the supervisory organ — namely, the Mandates Commission — had ceased to exist; for the United Nations possessed an international organ performing similar, though not identical, supervisory functions, namely the Trusteeship Council, while the General Assembly had sufficient powers under Article 10 of the Charter to exercise the relevant supervision over the continued administration of the territory.7 The conclusion that the United Nations succeeded to the supervisory functions of the League of Nations over mandated territories followed partly from the principle, adopted by the Court, that the regime established for the mandates created an international status and was not a purely contractual arrangement. The Court added that ‘the degree of supervision to be exercised by (p. 302) the General Assembly should not exceed that which applied under the Mandates System, and should conform as far as possible to the procedure followed in this respect by the Council of the League’.8 South Africa continued to maintain that the mandate had lapsed9 and refused to accept that the United Nations had any supervisory functions over the territory’s administration, and refused to cooperate with the United Nations in carrying out the Court’s Opinion. South Africa acknowledged, however, that South West Africa had a separate international status, and did not claim sovereignty over the territory.10

The General Assembly adopted the Court’s Opinion as the basis for supervision of the administration of South West Africa,11 and by GA Res 749 A (VIII) (1953) established a Committee on South West Africa to exercise certain of the supervisory functions which the Court considered the United Nations to possess; the Committee’s functions were so far as possible to be analogous to those of the Permanent Mandates Commission of the League.12

The General Assembly’s supervisory functions twice occasioned a further reference to the Court in order to ascertain whether the United Nations’ supervisory function was being exercised in accordance with the Court’s 1950 Opinion. In these cases the Court’s Opinion was that although unanimity had been required in the Council of the League in these matters, it was in order for decisions on South West Africa to be taken by the General Assembly by a two-thirds majority, as an ‘important’ question;13 and that although the Permanent Mandates Commission had never in fact granted oral hearings to petitioners from mandated territories, the South West Africa Committe could do so.14

In 1961 the General Assembly proclaimed15 (and often subsequently reaffirmed) the inalienable right of the people of South West Africa to independence and national sovereignty. South Africa’s persistent refusal to acknowledge the United Nations’ rights in connection with South West Africa led in 1960 to Liberia and Ethiopia, both former members of the League of Nations, instituting contentious proceedings before the International Court of Justice against South Africa, complaining of South Africa’s failure to observe certain obligations of the mandate. However, in 1966 the Court held (by the President’s casting vote) that Ethiopia and Liberia had not established any legal right or interest appertaining (p. 303) to them in the subject matter of their claims, and accordingly rejected them.16

This decision of the Court caused grave concern on the part of those states which most strongly objected to South Africa‘s continued control of South West Africa. In October 1966 the General Assembly17 reaffirmed ‘that South West Africa is a territory having international status and that it shall maintain this status until it achieves independence’; declared ‘that South Africa has failed to fulfil its obligations in respect of the administration of the Mandated Territory … and has, in fact, disavowed the Mandate’; decided ‘that the Mandate … is therefore terminated, that South Africa has no other right to administer the Territory18 and that henceforth South West Africa comes under the direct responsibility of the United Nations’; and resolved that the United Nations must discharge those responsibilities.19 In 1967 the Assembly established a United Nations Council for South West Africa (later to become the Council for Namibia) to administer the territory until it achieved independence,20 which was to be attained by June 1968, and provided for the appointment of a United Nations Commissioner for South West Africa. Some states (including the United Kingdom) did not accept that the General Assembly had the power to establish a Council or Commissioner with the powers envisaged in this case.

(p. 304) South Africa refused to cooperate with the Council, which accordingly could not discharge its responsibilities effectively; and the situation was further aggravated by the enactment by South Africa in 1967 of the Terrorism Act which, notwithstanding GA Res 2145 (XXI), applied in respect of South West Africa (with retroactive effect to 1962) and which was invoked in that sense in a trial of 37 South West Africans which began in September 1967.21 These events occasioned condemnation of South Africa by the United Nations.22 In 1968 the General Assembly changed the name of the territory to ‘Namibia’.23 After the enactment by South Africa of the Development of Native Nations in South West Africa Act 1968, which in effect established apartheid in Namibia, the Security Council considered the matter further in 1969 and adopted two further resolutions,24 calling on South Africa to withdraw from the territory.

South Africa’s failure to comply with these resolutions led the Security Council to adopt SC Res 276 (1970) declaring the continued presence of the South African authorities in Namibia to be illegal, and establishing an ad hoc sub-committee of the Security Council to study ways and means by which the relevant resolutions of the Council could be effectively implemented in accordance with the proper provisions of the Charter, in the light of the ‘flagrant refusal’ of South Africa to withdraw from Namibia. The sub-committee produced a report25 containing a number of proposals, including proposals that states should refrain from any relations with South Africa, diplomatic, consular or otherwise, implying recognition of South African authority over Namibia; and that states should discourage investment and trade with Namibia. The Security Council thereupon passed SC Res 283 and 284 (1970) calling on all states to implement the measures advocated in the ad hoc sub-committee’s report, and asking the International Court of Justice for an Advisory Opinion on the ‘legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council Resolution 276 (1970)’.26

The Court’s Opinion27 in answer to that question was:

‘(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; (2) that States Members of the (p. 305) 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 administration; (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.’

The Court regarded the General Assembly’s finding in GA Res 2145 (XXI) (namely that South Africa had acted in breach of the mandate and had ‘in fact, disavowed the Mandate’ and that therefore the mandate was terminated) as an exercise of the right to terminate a relationship because of deliberate and persistent violation of obligations which destroyed the very object and purpose of that relationship;28 the Council of the League of Nations could similarly have terminated the mandate, and therefore the General Assembly was not acting in excess of powers derived from the League;29 the General Assembly’s assertion that, the mandate having terminated, South Africa had no other right to administer the territory did not constitute a transfer of territory but was merely a formulation of a legal situation in reliance on prior decisions of the Court;30 and the finding by the Security Council in SC Res 276 that South Africa’s continued presence in South West Africa was illegal was within the powers of the Security Council and member states must comply with it.31 This involved for the member states various obligations to recognise the illegality and invalidity of South Africa’s continued presence in Namibia, and to refrain from lending support or any form of assistance to South Africa with reference to its occupation of Namibia.32

The General Assembly33 welcomed the Opinion of the Court, condemned South Africa for refusing to end its illegal occupation and administration of Namibia, called upon all states to refrain from all direct or indirect relations with South Africa concerning Namibia and not to recognise as legally valid any rights or interests in Namibian property or resources acquired from the South African Government after the termination of the mandate. The Security Council adopted a similar resolution,34 declaring South Africa’s continued illegal presence in Namibia to be an internationally wrongful act and a breach of international obligations and that South Africa remained accountable to the international community for any violations of its international obligations or the rights of the people of Namibia, calling upon all states to abstain from various specific dealings with South Africa in relation to Namibia, and declaring that franchises, (p. 306) rights, titles or contracts relating to Namibia granted to individuals or companies by South Africa after the termination of the mandate were not subject to protection by their states against claims of a future lawful government of Namibia. South Africa, however, remained in occupation of Namibia and continued to be de facto the administering authority.

The United Nations took further steps to assert and establish Namibia’s separate existence. From 1972 the South West African People’s Organisation (SWAPO) was allowed to participate as an observer in General Assembly discussions relating to Namibia,35 and in 1973 SWAPO was recognised by the General Assembly as the ‘authentic representative of the Namibian people’.36 The General Assembly, furthermore, requested international organisations within the United Nations’ system to take steps to enable the Council for Namibia to participate fully on behalf of Namibia in the work of those organisations, and requested that invitations to international conferences be extended to the Council to participate in an appropriate capacity whenever rights and interests of Namibia were involved.37 In accordance with these requests, the Council has represented Namibia at several international conferences and in certain international organisations.38 In September 1974 the Council for Namibia attempted to reinforce the earlier efforts by the General Assembly and Security Council to protect the natural resources of Namibia by adopting Decree No 1 for the Protection of the Natural Resources of Namibia.39 This Decree, adopted by the Council in exercise of its authority to administer Namibia pending its independence,40 prohibited exploration for or exploitation of the natural resources of Namibia without the permission of the Council; any permission for such exploration or exploitation granted by any other person or authority, including the Government of South Africa, was declared ‘null, void and of no force or effect’; Namibian natural resources were not to be exported from Namibia without the permission of the Council, and if exported they might be seized, as might any vehicle, ship or container carrying them; and anybody acting in contravention of the Decree ‘may be held liable for damages by the future government of an independent Namibia’. Both the practical effect and the legal validity and consequences of this Decree have been uncertain.41

(p. 307) Subsequent discussions42 with South Africa to secure compliance with the various United Nations resolutions proved difficult.43 In 1976 the Security Council called for free elections to be held in Namibia under United Nations’ supervision and control and set out certain other elements as the basis for an internationally acceptable settlement.44 In 1978 the General Assembly adopted a Declaration on Namibia and Programme of Action in Support of Self-Determination and National Independence for Namibia,45 in which the Assembly restated in comprehensive terms its attitude to the situation in Namibia and the future of the territory. South Africa, however, made arrangements for elections in Namibia, if necessary without United Nations’ involvement; the Security Council declared such unilateral measures to be ‘null and void’.46 Similarly the Security Council condemned as ‘null and void’ action by South Africa in 1985 establishing in Namibia an interim government and legislative assembly, reserving to South Africa direct control of defence and external affairs.47 Eventually complex arrangements were agreed in 1988 and 1989, which led to independence for Namibia on 21 March 1990.48

Footnotes:

For a fuller account of the mandate system see 8th ed of this vol, pp 212–22.

As regards Turkey see Art 16 of the Treaty of Lausanne 1923.

For confirmation by the ICJ that the ‘Mandate [for South West Africa], in fact and in law, is an international agreement having the character of a treaty or convention’, see South West Africa Cases (Preliminary Objections), ICJ Rep (1962), pp 319, 330–32. But see the joint dissenting opinion of Judges Fitzmaurice and Spender, regarding a mandate as ‘a quasi-legislative act of the League Council’ (ibid, at p 490). As regards those clauses in the mandates defining the mandatory’s powers and obligations in respect of the inhabitants of the territory and towards the League and its organs (the ‘conduct’ provisions), the ICJ held that no legal right or interest was vested in other members of the League of Nations individually (South West Africa Cases (Second Phase), ICJ Rep (1966), pp 6, 29, 51): as regards those clauses conferring rights directly on members of the League as individual states, or in favour of their nationals (the ‘special interests’ provisions), the matter was left open (ibid, p 22). The terms of a mandate have been held not to be directly enforceable in the courts of the mandated territory: State v Tuhadeleni (1968), ILR, 52, p 29; Administrator of the Territory of Papua and New Guinea v Blasius Tirupia (1971), ILR, 55, p 55.

§§ 89–95.

The mandates were distributed, and accepted by the mandatories, as follows:

  1. Type A  : Iraq — Great Britain; Palestine (and Transjordan) — Great Britain; Syria and Lebanon — France.

  2. Type B  : British Cameroons — Great Britain; French Cameroons — France; British Togoland — Great Britain; French Togoland — France; Tanganyika — Great Britain; Ruanda Urundi — Belgium.

  3. Type C  : South West Africa — Union of South Africa; Samoa — New Zealand; Nauru — British Empire (Great Britain, Australia, and New Zealand jointly); other Pacific Islands south of the Equator — Australia; Pacific Islands north of the Equator — Japan.

The distribution of the mandates (‘A’, ‘B’ and ‘C’) was effected by decisions of the Principal Allied Powers which were communicated to the Council of the League and are recorded in the preambles of the mandates.

In its Opinion in the Namibia (South West Africa) Legal Consequences Case the ICJ was unable to accept any construction which would attach to ‘C’ mandates an object and purpose different from those of ‘A’ or ‘B’ mandates: ICJ Rep (1971), p 32. In that Opinion the Court (at p 28ff.) considered in some detail the nature of ‘C’ mandates.

Note upon sovereignty in relation to the mandates — Widely differing views were held upon the question, Where does sovereignty in respect of the mandated areas lie? The following are among the numerous answers that were given:

  1. (a)  In the mandatory: see Rolin, RI, 3rd series, 1 (1920), pp 329–63, Lindley, pp 263, 267, and R v Jacobus Christian (AD (1923–24), No 12), where the Appellate Division of the Supreme Court of South Africa held that the mandatory government that is, the Government of the Union of South Africa — had sufficient internal majestas to support a conviction of one of the inhabitants of the ‘C’ mandated area of South West Africa for high treason under Roman-Dutch common law. That sufficed to uphold the conviction, but the judgments are also cited in support of the theory of full sovereignty in the mandatory. With reference to the claim of General Hertzog, Prime Minister of the Union of South Africa, for full sovereignty in respect of the mandated area of South West Africa subject to the terms of the mandate see The Times (London) newspaper of 9 June and 13 August 1927, the Minutes and Report of the Tenth Session (1926) of the Permanent Mandates Commission, pp 827–6, 182, of the Eleventh Session (1927), Minutes of and Council meetings of March and September 1927, Off J, 8 (1927), pp 347 and 1118–20; and Round Table (December 1927), pp 217–22. See also § 88, for subsequent developments in relation to South West Africa.

    The mandatory’s virtually full legislative and administrative powers over the mandated territories were confirmed in several cases (eg De Bodinat v Administration de l’Enregistrement, AD, 11 (1919–42), No 33; Wong Man On v The Commonwealth, ILR, 19 (1952), p 327), but subject to the terms of the mandate (see Jerusalem-Jaffa District Governor v Suleiman Murra [1926] AC, 321; Ahmed Shauki El Kharbutli v Minister of Defence, AD 16 (1949), No 19; but cf Rozenblatt v Register of Lands (Haifa), AD, 14 (1947), No 11; and State v Tuhadeleni (1968), ILR, 52, p 29, holding that South African legislation extending to South West Africa could not be invalidated for being contrary to the terms of the Mandate (see ICLQ, 18 (1969), p 789, and Dugard, AJ, 64 (1970), pp 19–41) and Binga v Administrator-General for South West Africa (1988), ILR, 82, p 465. In Stampfer v Attorney-General, ILR, 23 (1956), p 284, Palestine was held to be a British possession for purposes of a particular law. See also § 87, n 8, as to the effects of a New Zealand law having the effect of treating the mandated territory of Western Samoa as if it were part of New Zealand;

  2. (b)  In the mandatory, ‘acting with the consent of the Council of the League’: see Wright, AJ, 17 (1923), pp 691–703; ibid, 18 (1924), pp 306–15; ibid, 20 (1926), pp 768–72;

  3. (c)  In the principal allied powers;

  4. (d)  In the League (see H Lauterpacht, Analogies, § 86, while admitting that the exercise of sovereignty rests with the mandatory); see Attorney General v Goralschvili, mentioned in AJ, 20 (1926), p 771 (AD, 3 (1925–26), No 33); Redslob, Théorie de la Société des Nations (1927), pp 196, 197; Corbett, BY (1924), p 134; Bentwich, The Mandates System (1930), p 19; Scelle, i, pp 170, 171;

  5. (e)  In the inhabitants of the mandated area, but temporarily in suspense: see Stoyanovsky, La Théorie générale des mandats internationaux (1925); Pelichet, La Personnalité internationale distinae des collectivités sous mandat (1932) at p 183; Pic, RG, 30 (1923), pp 321–71. In the resolution adopted by the Institute of International Law in 1931 the communities under mandate are described as subjects of international law: see AJ, 26 (1932), p 91;

  6. (f)  In abeyance: see Judge McNair’s, dissenting opinion in the Status of South West Africa Case, ICJ Rep (1950), at p 150.

French courts have denied the responsibility of the Government of France for acts of the authorities in territories under French mandate: Re Bernard, ILR, 22 (1955), p 88 (for the similar attitude taken regarding states under French protection, see § 82, n 11).

ICJ Rep (1950), p 132. See also the Namibia (South West Africa) Legal Consequences Case, ICJ Rep (1971), pp 28, 30, 43, for clear rejection of the notion of annexation.

See Art 22.4 of the Covenant, referring to certain communities subsequently to become mandated territories as having ‘reached a stage of development where their existence as independent nations can be provisionally recognised subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone’. See also Lissitzyn, Hag R, 125 (1968), iii, pp 54–8; and Shehadeh v Commissioner of Prisons, AD, 14 (1947), No 16.

In the South West Africa Cases (Second Phase) the ICJ held that the principle of the ‘sacred trust’ was primarily a moral or humanitarian concept, and had no residual juridical content which could operate per se to give rise to legal rights and obligations outside the mandate system as a whole: ICJ Rep (1966), pp 34–5. For a survey of some 19th century antecedents of the ‘sacred trust’ see Alexandrowicz, AJ, 65 (1971), pp 149–59.

10  ICJ Rep (1950), p 132. And see, in particular, the Separate Opinion of Judge McNair, ibid, pp 153–57.

11  See § 90.

12  ICJ Rep (1971), pp 29–30.

13  See Feinberg, La Juridiction de la Cour Permanente dans le système des mandats (1930), and Hag R, 59 (1937), i, pp 596–632, 682–702. See the Mavromatis Palestine Concession Case (1924), PCIJ, Series A, No 2. It was in reliance on such a provision that Ethiopia and Liberia instituted proceedings against South Africa in 1960: see § 88, n 16.

See generally Weis, Nationality and Statelessness in International Law (2nd ed, 1979), pp 20–25. For purposes of English law persons connected in certain specified ways with British mandated territories in Togoland and Cameroons were considered British protected persons: British Protected Persons Order 1934 (SR and O 1934 No 499). See also the definition of the term ‘British protected person’ in the British Nationality Act 1948, s 32(1). Article 127 of the Treaty of Versailles gave the mandatory powers, as ‘Governments exercising authority over the territories’, the right of diplomatic protection over native inhabitants of former German possessions; and see Malapa v Public Prosecutor (1959), ILR, 28, p 80. See also Pablo Nájéra (of the Lebanon) Case, AD, 4 (1927–28), No 30.

See R v Jacobus Christian in the Appellate Division of the Supreme Court of South Africa in 1923, summarised by Mackenzie in BY (1925), pp 211–19, and in AD, 2 (1923–24), No 12; Matthews, JCL, 3rd series, 6 (1924), pp 245–54; and Emmett, ibid, 9 (1927), p 117. As to the bearing of this decision on the question of sovereignty, see § 86, n 6. As to the effects of cession on nationality, see § 249.

Article 122 of the Treaty of Peace with Germany appeared to assume the continuance of the German nationality of German subjects of European origin in mandated areas — a view which finds support in the minutes of the Permanent Mandates Commission, Second Session (cited by Wright in AJ, 18 (1924), at p 313) and was assumed to be correct in the negotiations between the Governments of the Union of South Africa and of Germany preceding the automatic and collective naturalisation Act of 1924 (see Emmett, JCL, 3rd series, 9 (1927), pp 111–22, and BY (1925), pp 188–91). See also Minister of the Interior v Bechler, AD, 15 (1948), No 67, and Ex parte Schwietering, ibid, No 86.

Off J (1923), p 604.

Act 30 of 1924: see Emmett, JCL, 3rd series, 9 (1927), and BY (1925), pp 188–91, and Van Pittius, Nationality within the British Commonwealth of Nations (1930), pp 177–201; Steinberg, Archiv des Völkerrechts, 31 (1954), pp 456–69. By the Naturalisation and Status of Aliens Amendment Act 1942 any person who was a British subject exclusively by virtue of the provisions of the Act of 1924 became an alien. The South African Citizenship Act 1949 (as amended in 1961) provided that people belonging to South West Africa became, in most cases, South African citizens: ss 1(1)(x), 2, 3, 5 and 6. See generally Parry, Nationality and Citizenship (1957), ch 12.

Which is equivalent to nationality: see Bentwich, BY (1926), at p 102. See also Feinberg, ZöV, 1 (1929), pp 200–11. See also R v Ketter, holding that the appellant, a resident of Palestine, who had been issued with a passport entitled ‘British Passport, Palestine,’ was not a British subject: [1940] 1 KB 787; and Attorney-General v Goralschwili, AD, 3 (1925–26), No 33. In Klausner v Levy (1949) a Palestinian citizen was held by a US court not to be a citizen of a ‘foreign State’ because Palestine was not a state while under British mandate: Whiteman, Digest, 2, p 655. But see Kletter v Dulles, ILR, 20 (1953), p 251, for a decision in a contrary sense. See also Palestinian Nationality Case, ILR, 18 (1951), No 25. Israeli courts have held Palestinian citizenship to have ceased to exist upon the establishment of the State of Israel: Hussein v Governor of Acre Prison, ILR, 17 (1950), p 112; Naqara v Minister of the Interior, ILR, 20 (1953), p 49.

But as to Transjordan, see Bentwich, op cit in n 6, at p 106.

The King v Ketter [1940] 1 KB 787; Wong Man On v The Commonwealth, ILR, 19 (1952), p 327, where it was held that a person born in a ‘C’ mandate did not become a national of the mandatory power; see also O’Connell, BY, 31 (1954), pp 458–61. Note, however, the effect of certain New Zealand legislation which, despite an earlier decision in a contrary sense in Levave v Immigration Department [1979] 2 NZLR 74, was held by the Privy Council to result in a person born in Western Samoa being regarded for purposes of nationality as having been born within the Crown’s dominions in the same way as a person born in New Zealand, and so acquiring British (and later New Zealand) nationality: Falema’i Lesa v Attorney-General of New Zealand [1983] 2 AC 20. The far-reaching consequences of the decision were, following the conclusion of an agreement between Western Samoa and New Zealand, largely limited by the passage in New Zealand of the Citizenship (Westert Samoa) Act 1982. See Crawford, BY, 53 (1982), pp 268–73.

See § 90, n 3.

See generally on South West Africa, Imishue, South West Africa: An International Problem (1966); Slonim, Can YBIL, 6 (1968), pp 115–43, and South West Africa and the United Nations (1973); Lucchini, AFDI, 15 (1969), pp 355–74; Whiteman, Digest, 1, pp 706–31 ; Obozuwa, The Namibian Question (1973); Dugard, The South West Africa/Namibia Dispute (1972); Bernhardt, ZöV, 33 (1973), pp 1–37; Sagay, Legal Aspects of the Namibian Dispute (1976); Zacklin, Hag R, 171 (1981), ii, pp 225–340; Dore, Harv ILJ, 27 (1986), pp 159–91. See also n 16.

As to the extension of South African treaties to South West Africa, see Schaffer, South African LJ, 95 (1978), pp 63–70. As to questions of state succession arising in relation to Namibia’s eventual independence, see Makonnen, Hag R, 200 (1986), v, pp 149–218.

In 1946 the First General Assembly declined to accede to the request of South Africa that the mandated territory of South West Africa should be incorporated in South Africa. The request followed upon a vote of the inhabitants of the territory expressing their desire for incorporation. The decision of the General Assembly was based on the view that the inhabitants of South West Africa had not yet reached a stage of political development ‘enabling them to express a considered opinion which the Assembly could recognise on such an important question as incorporation of their territory’. The Assembly recommended that the territory be placed under the system of trusteeship and invited South Africa to submit a trusteeship agreement for the territory: GA Res 65 (I) (1946), and see UNYB (1946–47), pp 205–8. While refusing to accept this recommendation, South Africa expressed its intention to continue to administer the territory as an integral part of South Africa in accordance with the principles laid down in the mandate and to submit regularly to the Secretary-General of the United Nations, in accordance with Art 73(e) of the Charter, ‘for information purposes, subject to such limitations as security and constitutional considerations may require, statistical and other information of a technical nature relating to the economic, social and educational conditions of South-West Africa’. But in 1949 South Africa informed the UN that it would submit no more reports: see GA Res 337 (IV) (1949). The Second General Assembly maintained its previous recommendation that South West Africa be placed under the trusteeship system: GA Res 141 (III); and see UNYB (1947–48), pp 142–7. For a presentation of the South African view, see Gey van Pittius, International Affairs, 23 (1947), pp 202–9. See also Wright, ibid, pp 209–12; Duncan Hall, BY, 24 (1947), pp 385–9. In 1948 and in subsequent years the General Assembly reiterated its previous recommendations that South West Africa be placed under the trusteeship system and recommended that South Africa should continue to supply annual information on its administration of the country. It also reaffirmed, on repeated occasions, its view that the placing of the territory under the trusteeship system by means of a trusteeship agreement was the proper way of modifying its status (see Res 227 (III) (1948), 337 (IV) (1949), 570 A and B (VI) of 1951).

ICJ Rep (1950), p 128, given in response to GA Res 338 (IV) (1949).

While the Court was of the opinion that ‘it was expected that the mandatory States would follow the normal course indicated by the Charter, namely, conclude Trusteeship Agreements’, it was unable ‘to deduce from these general considerations any legal obligation’ (ibid, p 140). It declined to pronounce on the moral or political duties involved in these considerations.

Although two judges dissented from this part of the Opinion, the Court was unanimous in holding that the judicial supervision continued and that, having regard to Art 7 of the Mandate and Art 37 of the Statute of the Court, the reference to the PCIJ was to be replaced by a reference to the ICJ. See § 86, n 13. The Court reaffirmed this view in the South West Africa Cases (Preliminary Objections), ICJ Rep (1962), pp 319, 334, in which it also reaffirmed the continuance of the mandatory’s obligations in general (pp 332–5, 338–42). But see also n 16, as to the Second Phase of the case.

ICJ Rep (1950), p 137. See also the Namibia (South West Africa) Legal Consequences Case, ICJ Rep (1971), pp 32–43, for confirmation of the continuation of the Mandate.

ICJ Rep (1950), p 138. The passage quoted was subject to further elaboration by the Court in the South West Africa (Voting Procedure) Case, ICJ Rep (1955), p 67.

For consideration (and rejection) of the suggestion that the mandate terminated as the result of South Africa’s assumption of republican status and departure from the Commonwealth in 1961, see Blom-Cooper, MLR, 24 (1961), pp 256–60.

10  See the statement by the South African Government recorded in the report of the Secretary-General to the Security Council, published in April 1973: UN Doc S/10921, para 14. As to the national status of the inhabitants of South West Africa, see § 87, n 5.

11  GA Res 449 A (V) (1950). The resolution also established a committee to confer with South Africa concerning procedural measures necessary for implementing the Court’s Opinion.

12  The Committee was replaced in 1961 by the Special Committee on South West Africa (GA Res 1702 (XVI)), which was in turn dissolved in 1962 and its functions assigned to the Special Committee of Twenty-Four (GA Res 1805 (XVII)): see § 85, n 40.

13  ICJ Rep (1955), p 67.

14  ICJ Rep (1956), p 23.

15  GA Res 1702 (XVI).

16  ICJ Rep (1966), p 6. There had been earlier proceedings to consider — and reject — certain preliminary objections raised by South Africa: ICJ Rep (1962), p 319. For discussion of these judgments, see Johnson, ICLQ, 13 (1964), at pp 1143–58; Verzijl, Neth IL Rev, 11 (1964), pp 1–25; Higgins, International Affairs, 42 (1966), pp 573–99; Dugard, South African LJ, 83 (1966), pp 429–60; Falk, International Organisation, 22 (1967), pp 1–24; McWhinney, Can YBIL, 5 (1967), pp 73–9; Fleming, ibid, pp 241–52; Cheng, Current Legal Problems (1967), pp 181–212; Nisot, Rev Belge, 3 (1967), pp 24–36; Katz, The Relevance of International Adjudication (1968), Ch 4; Anand, Studies in International Adjudication (1969), pp 119–51; Falk, The Status of Law in International Society (1970), pp 126–73, 378–402.

17  GA Res 2145 (XXI). This resolution has been subject to considerable criticism, both on the practical ground that the United Nations should not purport to do things which it is manifestly in no position to carry out, and on the legal ground that the legal right of the General Assembly to terminate the Mandate and of the UN to assume powers under it was very far from clearly established: see n 27; Rousseau, RG, 71 (1967), pp 382–4; and Dugard, AJ, 62 (1968), pp 78–97.

18  For the proposition that if the mandate lapsed South Africa’s authority in South West Africa would equally lapse, see ICJ Rep (1950), p 42. With the termination of the Mandate South Africa’s right to represent South West Africa in international organisations and extend treaties to the territory also came to an end: see UN Juridical YB (1981), pp 143–5, and as to the position in the International Telecommunications Union, Blix, Hag R, 130 (1970), ii, p 665, n 36.

19  The resolution also established an ad hoc committee for South West Africa, composed of 14 member states, to recommend practical means by which South West Africa should be administered.

20  GA Res 2248 (S-V); see also GA Res 2325 (XXII) (1967), 2372 (XXIII) (1968). In 1972 the Council was increased from 11 to 18 members: GA Res 3031 (XXVII). The Council issued travel documents to persons belonging to Namibia, and concluded agreements concerning the recognition of these documents (eg with Tanzania, UN Doc A/AC 131/29; and see also UN Juridical YB (1973), pp 18, 21). See generally UN Juridical YB (1967), p 309 and (1982), pp 164–70; Engers, AJ, 65 (1971), pp 571–8.

In order to enable the Council’s work to be carried out more effectively the General Assembly in 1970 established a UN Fund for Namibia to provide comprehensive assistance to the people of the territory: see GA Res 2679 (XXV) (1970) and SC Res 283 (1970). The Council for Namibia acted as trustee of the Fund and administered and managed it. See generally Osieke, BY, 51 (1980), pp 189, 192–6; Zacklin, Hag R, 171 (1981), ii, pp 308–27.

With the attainment of independence by Namibia in 1990 (n 48), the Council recommended that it be dissolved: this was done by GA Res 44/243, of 11 September 1990.

21  The State v Tuhadeleni (1968), ILR, 52, p 29; see ICLQ, 18 (1969), p 789, and Dugard, AJ, 64 (1970), pp 19–41.

22  GA Res 2324 (XXII) (1967); SC Res 245 (1968), 246 (1968).

23  GA Res 2372 (XXII).

24  SC Res 264 and 269.

25  UN Doc S/9863.

26  The formulation of the question to be put to the Court is not free from criticism, since it assumed certain propositions which were legally controversial, such as that the General Assembly had legally terminated the mandate.

27  Namibia (South West Africa) Legal Consequences Case, ICJ Rep (1971), p 4. The Opinion was subject to much critical comment, particularly as to the Court’s determination that the General Assembly had validly terminated the mandate. The dissenting opinions of Judges Fitzmaurice and Gros contained powerful arguments that the Assembly lacked the authority to revoke the mandate. The UK was unable to accept as legally correct the conclusions reached by the Court: see the statement by the British representatives in the Security Council on 6 October 1971 (Cmnd 5049, pp 177–81); Parliamentary Debates (Commons), vol 823, col 678ff. (19 October 1971); and ibid, vol 882, cols 1564–6 (4 December 1974). See generally on the Opinion, Hevener, ICLQ, 24 (1975), pp 791–810; Bollecker, AFDI, 17 (1971), pp 281–333.

28  At pp 46–7.

29  At pp 47–9.

30  At p 50.

31  At pp 51–4. For consideration of the decision of the Court as to the binding nature of this and certain other resolutions, see Higgins, ICLQ, 21 (1972), pp 270–86.

32  See § 55, at p 197.

33  GA Res 2871 (XXVI) (1971). See also GA Res 3031 (XXVII) (1972). Similar resolutions were adopted in the immediately following years.

34  SC Res 301 (1971). For unsuccessful attempts to enforce in national courts the illegality of South Africa’s presence in Namibia, and to give effect to the various UN resolutions, see Diggs v Dent, ILM, 14 (1975), p 797; Diggs v Richardson, AJ, 72 (1978), p 152.

35  GA Res 3031 (XXVII); UNYB (1972), p 612.

36  GA Res 3111 (XXVIII).

37  See eg GA Res 3111 (XXVIII) (1973), 31/149 (1976), and 32/9 A, para 4, and E (1977); S-9/2 (1978).

38  Thus in 1977 the Council was admitted, as representing Namibia, to membership of the FAO, and in 1978 to membership of UNESCO and the ILO; it was also admitted to observer status in WMO, and to associate membership of WHO. The Council also participated in the Vienna Conference on Succession of States in Respect of Treaties, and in the Law of the Sea Conference. See generally Osieke BY, 51 (1980), pp 189–229.

39  ILM, 13 (1974), p 1513. The General Assembly endorsed the Decree in GA Res 3399 (XXX) (1975).

40  See n 20.

41  See generally Schermers, ICLQ, 26 (1977), pp 81–96. The General Assembly in 1981 decided that the Council for Namibia should take all measures to ensure compliance with Decree No 1, including considerations of the institution of legal proceedings: GA Res 36/121 C. The necessary studies were entrusted to the Commissioner for Namibia, whose report on the possibility of instituting legal proceedings in the domestic courts of states was presented in 1985 (UN Doc A/AC 131/194; AJ, 80 (1986), pp 442–91), and it was decided to commence legal proceedings in the Netherlands. The UK regarded the decree as null and void: see Paliamentary Debates (Lords), vol 82, col 1044 (23 February 1988); so did France (AFDI, 26 (1980), p 947).

42  Eg by the Secretary-General acting under SC Res 309, 319 and 323 (1972), and subsequently by five members of the Security Council, sometimes referred to as the ‘Contact Group’ (France, UK, USA, Canada, and the Federal Republic of Germany). See Richardson AJ, 78 (1984), pp 76–120.

43  One of the problems concerned the status, and future, of the port and settlement of Walvis Bay. Walvis Bay was formerly part of the British colony of the Cape of Good Hope, and thus became part of the sovereign territory of the Union of South Africa in 1910. By the South West Africa Affairs Act 1922 Walvis Bay was administered as if it were part of South West Africa. In 1977 the South African Government took steps to reassert its sovereignty over Walvis Bay and return its administration to South Africa. This action was seen by many states as ‘annexation’ and was so referred to in General Assembly resolutions; it was also regarded as inconsistent with maintaining the ‘territorial integrity’ of Namibia. In GA Res 32/9D (1977), paras 6–8, the Assembly declared the ‘annexation … illegal, null and void’; see also GA Res S-9/2 (1978), para 11. SC Res 432 (1978) did not repeat these declarations of illegality, but took note that Walvis Bay was an integral part of South West Africa and supported the initiation of steps to secure the ‘reintegration of Walvis Bay into Namibia’. See the statement on behalf of the ‘Contact Group’, and the statement by South Africa, at ILM, 17 (1978), pp 1307–11; and see generally on Walvis Bay, Marshall, ICLQ, 27 (1978), pp 683–4; RG, 82 (1978), pp 692–4; Goeckner and Gunning, Yale LJ, 89 (1980), pp 903–922; Makonnen, Hag R, 200 (1986), v, pp 212–18. And see Binga v Administrator-General for South West Africa (1988), ILR, 82, pp 465, 494ff. The future of Walvis Bay is for negotiation between South Africa and Namibia.

44  SC Res 385. In April 1978 further proposals were made, in accordance with SC Res 385, for securing the independence of Namibia by the end of 1978 on the basis of free elections under UN supervision: UN Doc S/12636; ILM, 17 (197), p 762. See also the Report of the Secretary-General’s Special Representative appointed pursuant to SC Res 431 (1978): UN Doc S/12827; ILM, 17 (1978), p 1537.

45  GA Res S-9/2.

46  SC Res 435 and 439 (1978).

47  See statement made on behalf of the Council on 3 May 1985 and SC Res 566 (1985): UNYB (1985), pp 1096–8.

48  Independence for Namibia, and with it the withdrawal of South African armed forces from the territory, was closely linked to the withdrawal of Cuban forces from Angola and of SWAPO forces from Namibia. For the complex arrangements to secure this, involving also UN assistance with the transition arrangements, see ILM, 28 (1989), pp 944–1017. See also Cadoux, AFDI, 34 (1988), pp 13–36; RG 94 (1990), pp 801–2; Kamto, RG, 94 (1990), pp 577–634.