South West Africa, Ethiopia v South Africa, Preliminary objections, judgment, ICJ GL No 46,  ICJ Rep 319, ICGJ 157 (ICJ 1962), 21st December 1962, United Nations [UN]; International Court of Justice [ICJ]
- Ethiopia, Liberia
- South Africa, South Africa
- Bohdan Winiarski (President); Ricardo Joaquin Alfaro (Vice-President); Jules Basdevant; Abdel Hamid Badawi; Lucio Manuel Moreno Quintana; Vi Kuiyuin Wellington Koo; Jean Spiropoulos; Sir Percy Claude Spender; Sir Gerald Gray Fitzmaurice; Vladimir M Koretsky; José Luis Pablo Bustamante y Rivero; Philip C Jessup; Gaetano Morelli; Sir Louis Mbanefo; J T van Wyk
- Procedural Stage:
- Preliminary Objections, Judgment
- Previous Procedural Stage(s):
- Order, South West Africa Cases, Ethiopia/Liberia v South Africa, (1961) ICJ Rep 13; ICGJ 154 (ICJ 1961), 20 May 1961
- Subsequent Development(s):
- Order; South West Africa, Ethiopia/Liberia v South Africa, (1965) ICJ Rep 3; ICGJ 155 (ICJ 1965), 18 March 1965Order; South West Africa, Ethiopia/Liberia v South Africa, (1965) ICJ Rep 9; ICGJ 156 (ICJ 1965), 29 November 1965Judgment; South West Africa, Second Phase, Ethiopia/Liberia v South Africa, (1966) ICJ Rep 6; ICGJ 158 (ICJ 1966), 18 July 1966
- Individuals and non-state actors — Jurisdiction — Apartheid — Membership of international organizations — Suspension, withdrawal, and expulsion from international organizations — Responsibility of states — Treaties, interpretation — Treaties, invalidity, termination, suspension, withdrawal — Admissibility — International courts and tribunals, procedure — Sources, foundations and principles of international law — Trust territory and mandate
- Core Issue(s):
- Whether there existed a dispute between Ethiopia / Liberia and South Africa such that one party was positively opposed by the other (rather than asserting that a dispute existed with a non-party) relating to the performance of the obligations under the Mandate of 17 December 1920 for South West Africa (‘Mandate’) established by the Covenant of the League of Nations if so, what were the nature of those obligations.
- Whether, since the dissolution of the League of Nations, the Mandate was no longer a treaty in force within the meaning of Article 37 of the Statute of the International Court of Justice, and whether South Africa's obligation to submit to compulsory jurisdiction had been effectively transferred to the Court before the League's dissolution.
- Whether the Court had jurisdiction to hear the dispute concerning the continued existence of the Mandate and the duties and performance of South Africa as thereunder.
Decision - English translation
Present: President Winiarski; Vice-President Alfaro; Judges Basdevant, Badawi, Moreno Quintana, Wellington Koo, Spiropoulos, Sir Percy Spender, Sir Gerald Fitzmaurice, Koretsky, Bustamante y Rivero, Jessup, Morelli; Judges ad hoc Sir Louis Mbanefo, van Wyk; Registrar Garnier-Coignet.
In the South West Africa cases,
the Empire of Ethiopia, represented by
H.E. Dr. Tesfaye Gebr-eEgzy,
Hon. Ernest A. Gross, Member of the New York Bar,
Mr. Edward R. Moore, Assistant Attorney-General of Liberia,
Mr. Leonard S. Sandweiss, Member of the New York Bar,
the Republic of Liberia, represented by
Hon. Joseph J. F. Chesson, Attorney-General of Liberia,
Hon. Ernest A. Gross, Member of the New York Bar,
Mr. Edward R. Moore, Assistant Attorney-General of Liberia,
Mr. Leonard S. Sandweiss, Member of the New York Bar,
the Republic of South Africa, represented by
Dr. J. P. verLoren van Themaat, S.C., Law Adviser to the Department of Foreign Affairs,
Mr. Ross McGregor, Deputy State Attorney,
as Additional Agent,
Mr. D. P. de Villiers, S.C., Member of the South African Bar,
Mr. G. van R. Muller, S.C., Member of the South African Bar.
Mr. J. S. F. Botha, Department of Foreign Affairs,
Mr. F. D. Tothill, Department of Foreign Affairs,
composed as above,
delivers the following Judgment:
1 On 4 November 1960 the Registrar received two Applications, each instituting proceedings against the Government of the Union of South Africa relating to “the continued existence of the Mandate for South West Africa and the duties and performance of the Union, as Mandatory, thereunder.” One of these Applications was submitted on behalf of the Government of Ethiopia; it was transmitted by a letter from the Agents who had been appointed in the case by that Government, as appears from a communication by the Deputy Prime Minister and Minister for Foreign Affairs of Ethiopia, the letter and communication being dated 28 October 1960. The other Application was submitted on behalf of the Government of Liberia; it was transmitted by a letter from the Agents who had been appointed in the case by that Government, as appears from a communication from the Ambassador of Liberia in the Netherlands, the letter and communication being dated 4 November 1960.
2 To found the jurisdiction of the Court in the proceedings thus instituted, the Applications, having regard to Article 80, paragraph 1, of the Charter of the United Nations, rely on Article 7 of the Mandate of 17 December 1920 for German South West Africa and Article 37 of the Statute of the Court.
3 In accordance with Article 40, paragraph 2, of the Statute, the Applications were communicated to the Government of the Union of South Africa. In accordance with paragraph 3 of the same Article, the other Members of the United Nations and the non-Member States entitled to appear before the Court were notified.
4 Time-limits for the filing of the Memorial of Ethiopia and the Memorial of Liberia, and for the filing of the Counter-Memorials of the Union of South Africa, were fixed by two Orders of 13 January 1961. By letters dated 28 March 1961, the Agent of the Government of Ethiopia, on the one hand, requested that a time-limit be fixed within which his Government might notify its intention to exercise the right to choose a Judge ad hoc and might indicate the name of the person chosen; and the Agent of the Government of Liberia, on the other hand, made the same request in respect of that Government. Seised of these two requests, and having taken cognizance of the two Memorials which had been filed on 15 April 1961, the Court, considering that the two applicant Governments were in the same interest and were therefore, so far as the choice of a Judge ad hoc was concerned, to be reckoned as one party only, by Order of 20 May 1961, joined the proceedings in the two cases, and fixed the time-limit as requested.
5 On 30 November 1961, within the time-limit fixed for the presentation of its first pleading, the Government of South Africa filed Preliminary Objections. Accordingly, an Order of 5 December 1961 recorded that by virtue of the provisions of Article 62, paragraph 3, of the Rules of Court, the proceedings on the merits were suspended and fixed 1 March 1962 as the time-limit within which the Governments of Ethiopia and Liberia might present a written statement of their observations and submissions on the objections.
6 The statement having been presented within the prescribed time-limit, the cases became ready for hearing on 1 March 1962 in respect of the Preliminary Objections.
7 Pursuant to Article 31, paragraph 3, of the Statute, and the Order of the Court of 20 May 1961, the Governments of Ethiopia and Liberia, acting in concert, chose Sir Louis Mbanefo, Chief Justice of the Eastern Region of Nigeria, to sit as Judge ad hoc. In accordance with the same Article, the Government of South Africa chose the Honourable J. T. van Wyk, Judge of the Appellate Division of the Supreme Court of South Africa, to sit as Judge ad hoc.
8 On 2–5, 8–11, 15–17, and 19 and 22 October 1962, hearings were held in the course of which the Court heard the oral arguments and replies of Mr. verLoren van Themaat, Agent, Mr. de Villiers and Mr. Muller, Counsel, on behalf of the Government of South Africa; and of the Honourable Ernest A. Gross, Agent, and the Honourable Edward R. Moore, Counsel, on behalf of the Governments of Ethiopia and Liberia.
10 On behalf of the Governments of Ethiopia and Liberia, In the Applications:
“May it please the Court, to adjudge and declare, whether the Government of the Union of South Africa is present or absent and after such time limitations as the Court may see fit to fix, that,
A. South West Africa is a Territory under the Mandate conferred upon His Britannic Majesty by the Principal Allied and Associated Powers, to be exercised on his behalf by the Government of the Union of South Africa, accepted by His Britannic Majesty for and on behalf of the Government of the Union of South Africa, and confirmed by the Council of the League of Nations on December 17, 1920; and that the aforesaid Mandate is a treaty in force, within the meaning of Article 37 of the Statute of the International Court of Justice.
B. The Union of South Africa remains subject to the international obligations set forth in Article 22 of the Covenant of the League of Nations and in the Mandate for South West Africa, and that the General Assembly of the United Nations is legally qualified to exercise the supervisory functions previously exercised by the League of Nations with regard to the administration of the Territory, and that the Union is under an obligation to submit to the supervision and control of the General Assembly with regard to the exercise of the Mandate.
C. The Union of South Africa remains subject to the obligations to transmit to the United Nations petitions from the inhabitants of the Territory, as well as to submit an annual report to the satisfaction of the United Nations in accordance with Article 6 of the Mandate.
D. The Union has substantially modified the terms of the Mandate without the consent of the United Nations; that such modification is a violation of Article 7 of the Mandate and Article 22 of the Covenant; and that the consent of the United Nations is a necessary prerequisite and condition to attempts on the part of the Union directly or indirectly to modify the terms of the Mandate.
E. The Union has failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory; its failure to do so is a violation of Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to take all practicable action to fulfil its duties under such Articles.
F. The Union, in administering the Territory, has practised apartheid, i.e. has distinguished as to race, color, national or tribal origin, in establishing the rights and duties of the inhabitants of the Territory; that such practice is in violation of Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to cease the practice of apartheid in the Territory.
G. The Union, in administering the Territory, has adopted and applied legislation, regulations, proclamations, and administrative decrees which are by their terms and in their application, arbitrary, unreasonable, unjust and detrimental to human dignity; that the foregoing actions by the Union violate Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to repeal and not to apply such legislation, regulations, proclamations, and administrative decrees.
H. The Union has adopted and applied legislation, administrative regulations, and official actions which suppress the rights and liberties of inhabitants of the Territory essential to their orderly evolution toward self-government, the right to which is implicit in the Covenant of the League of Nations, the terms of the Mandate, and currently accepted international standards, as embodied in the Charter of the United Nations and the Declaration of Human Rights; that the foregoing actions by the Union violate Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to cease and desist from any action which thwarts the orderly development of self-government in the Territory.
I. The Union has exercised powers of administration and legislation over the Territory inconsistent with the international status of the Territory; that the foregoing action by the Union is in violation of Article 2 of the Mandate and Article 22 of the Covenant; that the Union has the duty to refrain from acts of administration and legislation which are inconsistent with the international status of the Territory.
J. The Union has failed to render to the General Assembly of the United Nations annual reports containing information with regard to the Territory and indicating the measures it has taken to carry out its obligations under the Mandate; that such failure is a violation of Article 6 of the Mandate; and that the Union has the duty forthwith to render such annual reports to the General Assembly.
K. The Union has failed to transmit to the General Assembly of the United Nations petitions from the Territory's inhabitants addressed to the General Assembly; that such failure is a violation of the League of Nations rules; and that the Union has the duty to transmit such petitions to the General Assembly.
The Applicant reserves the right to request the Court to declare and adjudge with respect to such other and further matters as the Applicant may deem appropriate to present to the Court.
May it also please the Court to adjudge and declare whatever else it may deem fit and proper in regard to this Application, and to make all necessary awards and orders, including an award of costs, to effectuate its determinations”;
11 In the Memorials:
“Upon the basis of the foregoing allegations of fact, supplemented by such facts as may be adduced in further testimony before this Court, and the foregoing statements of law, supplemented by such other statements of law as may be hereinafter made, may it please the Court to adjudge and declare, whether the Government of the Union of South Africa is present or absent, that:
1. South West Africa is a territory under the Mandate conferred upon His Britannic Majesty by the Principal Allied and Associated Powers, to be exercised on his behalf by the Government of the Union of South Africa, accepted by his Britannic Majesty for and on behalf of the Government of the Union of South Africa, and confirmed by the Council of the League of Nations on December 17, 1920;
2. the Union of South Africa continues to have the international obligations stated in Article 22 of the Covenant of the League of Nations and in the Mandate for South West Africa as well as the obligation to transmit petitions from the inhabitants of that Territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and the petitions are to be submitted;
3. the Union, in the respects set forth in Chapter V of this Memorial and summarized in Paragraphs 189 and 190 thereof, has practised apartheid, i.e., has distinguished as to race, color, national or tribal origin in establishing the rights and duties of the inhabitants of the Territory; that such practice is in violation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant of the League of Nations; and that the Union has the duty forthwith to cease the practice of apartheid in the Territory;
4. the Union, by virtue of the economic, political, social and educational policies applied within the Territory, which are described in detail in Chapter V of this Memorial and summarized at Paragraph 190 thereof, has failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory; that its failure to do so is in violation of its obligations as stated in the second paragraph of Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to cease its violations as aforesaid and to take all practicable action to fulfil its duties under such articles;
5. the Union, by word and by action, in the respects set forth in Chapter VIII of this Memorial, has treated the Territory in a manner inconsistent with the international status of the Territory, and has thereby impeded opportunities for self-determination by the inhabitants of the Territory; that such treatment is in violation of the Union's obligations as stated in the first paragraph of Article 2 of the Mandate and Article 22 of the Covenant; that the Union has the duty forthwith to cease the actions summarized in Section C of Chapter VIII herein, and to refrain from similar actions in the future; and that the Union has the duty to accord full faith and respect to the international status of the Territory;
6. the Union, by virtue of the acts described in Chapter VII herein, has established military bases within the Territory in violation of its obligations as stated in Article 4 of the Mandate and Article 22 of the Covenant; that the Union has the duty forthwith to remove all such military bases from within the Territory; and that the Union has the duty to refrain from the establishment of military bases within the Territory;
7. the Union has failed to render to the General Assembly of the United Nations annual reports containing information with regard to the Territory and indicating the measures it has taken to carry out its obligations under the Mandate; that such failure is a violation of its obligations as stated in Article 6 of the Mandate; and that the Union has the duty forthwith to render such annual reports to the General Assembly;
8. the Union has failed to transmit to the General Assembly of the United Nations petitions from the Territory's inhabitants addressed to the General Assembly; that such failure is a violation of its obligations as Mandatory; and that the Union has the duty to transmit such petitions to the General Assembly;
9. the Union, by virtue of the acts described in Chapters V, VI, VII and VIII of this Memorial coupled with its intent as recounted herein, has attempted to modify substantially the terms of the Mandate, without the consent of the United Nations; that such attempt is in violation of its duties as stated in Article 7 of the Mandate and Article 22 of the Covenant; and that the consent of the United Nations is a necessary prerequisite and condition precedent to attempts on the part of the Union directly or indirectly to modify the terms of the Mandate.
The Applicant reserves the right to request the Court to declare and adjudge in respect to events which may occur subsequent to the date this Memorial is filed, including any event by which the Union's juridical and constitutional relationship to Her Britannic Majesty undergoes any substantial modification.
May it also please the Court to adjudge and declare whatever else it may deem fit and proper in regard to this Memorial, and to make all necessary awards and orders, including an award of costs, to effectuate its determinations.”
12 On behalf of the Government of South Africa, In the Preliminary Objections:
“For all or any of the reasons set out in these Preliminary Objections, the Government of the Republic of South Africa submits that the Governments of Ethiopia and Liberia have no locus standi in these contentious proceedings and that the Honourable Court has no jurisdiction to hear, or adjudicate upon, the questions of law and fact raised in the Applications and Memorials; and prays that the Court may adjudge and determine accordingly.”
13 On behalf of the Governments of Ethiopia and Liberia, In the written Observations on the Preliminary Objections:
“May it please this Honourable Court to dismiss the Preliminary Objections raised by the Government of the Republic of South Africa in the South West Africa Cases, and to adjudge and declare that the Court has juridiction to hear and adjudicate the questions of law and fact raised in the Applications and Memorials of the Governments of Ethiopia and Liberia in these Cases.”
15 On behalf of the Government of South Africa, at the hearing on 11 October 1962:
“For all or any one or more of the reasons set out in its written and oral statements, the Government of the Republic of South Africa submits that the Governments of Ethiopia and Liberia have no locus standi in these contentious proceedings, and that the Court has no jurisdiction to hear or adjudicate upon the questions of law and fact raised in the Applications and Memorials, more particularly because:
Firstly, by reason of the dissolution of the League of Nations, the Mandate for South West Africa is no longer a ‘treaty or convention in force’ within the meaning of Article 37 of the Statute of the Court, this submission being advanced
(a) with respect to the said Mandate Agreement as a whole, including Article 7 thereof, and
(b) in any event, with respect to Article 7 itself;
Secondly, neither the Government of Ethiopia nor the Government of Liberia is ‘another Member of the League of Nations’, as required for locus standi by Article 7 of the Mandate for South West Africa;
Thirdly, the conflict or disagreement alleged by the Governments of Ethiopia and Liberia to exist between them and the Government of the Republic of South Africa, is by reason of its nature and content not a ‘dispute’ as envisaged in Article 7 of the Mandate for South West Africa, more particularly in that no material interests of the Governments of Ethiopia and/or Liberia or of their nationals are involved therein or affected thereby;
Fourthly, the alleged conflict or disagreement is as regards its state of development not a ‘dispute’ which ‘cannot be settled by negotiation’ within the meaning of Article 7 of the Mandate for South West Africa.”
16 On behalf of the Governments of Ethiopia and Liberia, at the hearing on 17 October 1962:
“May it please the Court to dismiss the Preliminary Objections raised by the Government of the Republic of South Africa in the South West Africa cases, and to adjudge and declare that the Court has jurisdiction to hear and adjudicate the questions of law and fact raised in the Applications and Memorials of the Governments of Ethiopia and Liberia in these cases.”
17 Questions having been put to the Parties by two Judges, the Court decided that the answers to them should be given after the oral rejoinder, first on behalf of the Republic of South Africa and then on behalf of Ethiopia and Liberia; and that, in the same order, the Agents should be called upon to indicate whether those questions and the answers given to them had led them to amend their respective submissions and, if so, to present the amended submissions.
18 Availing themselves of this decision, the Agents of the Parties gave their answers on 22 October 1962. The Agent of the Republic of South Africa amended the Submissions which he had read at the hearing on 11 October by substituting the following paragraph for the paragraph commencing with the word “Firstly”:
“Firstly, the Mandate for South West Africa has never been, or at any rate is since the dissolution of the League of Nations no longer, a ‘treaty or convention in force’ within the meaning of Article 37 of the Statute of the Court, this Submission being advanced
(a) with respect to the Mandate as a whole, including Article 7 thereof; and
(b) in any event, with respect to Article 7 itself.”
19 At the hearing on 22 October 1962, the Agent of Ethiopia and Liberia stated that he did not intend to amend his Submissions.
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20 To found the jurisdiction of the Court in the proceedings, the Applicants, having regard to Article 80, paragraph 1, of the Charter of the United Nations, relied on Article 7 of the Mandate of 17 December 1920 for South West Africa, and Article 37 of the Statute of the Court. In response to the Applications and Memorials of Ethiopia and Liberia, the Government of South Africa filed Preliminary Objections to the jurisdiction of the Court. It is these Objections which call for consideration in the present phase of the proceedings.
21 Before undertaking this task, however, the Court finds it necessary to decide a preliminary question relating to the existence of the dispute which is the subject of the Applications. The view has been advanced that if no dispute within the purview of Article 7 of the Mandate and Articles 36 and 37 of the Statute of the Court exists in fact, a conclusion of incompetence or fin de non-recevoir must follow.
22 It is to be noted that this preliminary question really centres on the point as to the existence of a dispute between the Applicants and the Respondent, irrespective of the nature and subject of the dispute laid before the Court in the present case. In the case of the Mavrommatis Palestine Concessions (P.C.I.J., Series A, No. 2, p. 11) the Permanent Court defines a dispute as “a disagreement on a point of law or fact, a conflict of legal views or interests between two persons”. The said Judgment, in proceeding to examine the nature of the dispute, enunciates this definition, only after establishing that the conditions for the existence of a dispute are fulfilled. In other words it is not sufficient for one party to a contentious case to assert that a dispute exists with the other party. A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its nonexistence. Nor is it adequate to show that the interests of the two parties to such a case are in conflict. It must be shown that the claim of one party is positively opposed by the other. Tested by this criterion there can be no doubt about the existence of a dispute between the Parties before the Court, since it is clearly constituted by their opposing attitudes relating to the performance of the obligations of the Mandate by the Respondent as Mandatory.
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23 Inasmuch as the grounds on which the Preliminary Objections rely are generally connected with the interpretation of the Mandate Agreement for South West Africa, it is also necessary at the outset to give a brief account of the origin, nature and characteristics of the Mandates System established by the Covenant of the League of Nations.
24 Under Article 119 of the Treaty of Versailles of 28 June 1919, Germany renounced in favour of the Principal Allied and Associated Powers all her rights and titles over her overseas possessions. The said Powers, shortly before the signature of the Treaty of Peace, agreed to allocate them as Mandates to certain Allied States which had already occupied them. The terms of all the “C” Mandates were drafted by a Committee of the Supreme Council of the Peace Conference and approved by the representatives of the Principal Allied and Associated Powers in the autumn of 1919, with one reservation which was subsequently withdrawn. All these actions were taken before the Covenant took effect and before the League of Nations was established and started functioning in January 1920. The terms of each Mandate were subsequently defined and confirmed by the Council in conformity with Article 22 of the Covenant.
25 The essential principles of the Mandates System consist chiefly in the recognition of certain rights of the peoples of the underdeveloped territories; the establishment of a regime of tutelage for each of such peoples to be exercised by an advanced nation as a “Mandatory” “on behalf of the League of Nations”; and the recognition of “a sacred trust of civilisation” laid opon the League as an organized international community and upon its Member States. This system is dedicated to the avowed object of promoting the well-being and development of the peoples concerned and is fortified by setting up safeguards for the protection of their rights.
26 These features are inherent in the Mandates System as conceived by its authors and as entrusted to the respective organs of the League and the Member States for application. The rights of the Mandatory in relation to the mandated territory and the inhabitants have their foundation in the obligations of the Mandatory and they are, so to speak, mere tools given to enable it to fulfil its obligations. The fact is that each Mandate under the Mandates System constitutes a new international institution, the primary, overriding purpose of which is to promote “the well-being and development” of the people of the territory under Mandate.
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27 As has already been pointed out, Ethiopia and Liberia indicated in their Applications the provisions on which they founded the jurisdiction of the Court to hear and determine the dispute which they referred to it; to this the Republic of South Africa replied with a denial of jurisdiction.
28 The issue of the jurisdiction of the Court was raised by the Respondent in the form of four Preliminary Objections. Its submissions at the end of its written and oral statements are substantially the same, except that on the latter occasion the grounds on which the respective objections are based were summarized under each Objection, and, with reference to the submissions in the first Preliminary Objection, the Respondent introduced a modification on 22 October 1962, as a consequence of its replies to questions put to the Parties by Members of the Court. The Court will deal first with this modification.
29 The amended text of the First Objection reads:
“Firstly, the Mandate for South West Africa has never been, or at any rate is since the dissolution of the League of Nations no longer, a ‘treaty or convention in force” within the meaning of Article 37 of the Statute of the Court, this Submission being advanced
(a) with respect to the Mandate as a whole, including Article 7 thereof; and
(b) in any event, with respect to Article 7 itself.”
30 The amendment consists in the addition of the italicized words. Counsel for the Respondent made a statement as a preface to his amendment of 22 October 1962. From this statement it appears that originally the Respondent had always considered or assumed that the Mandate for South West Africa had been a “treaty or convention in itself, that is, an international agreement between the Mandatory on the one hand, and, on the other, the Council representing the League and/or its Members”; and that it had stated several times “that that proposition could be taken to be common cause as related to the period of the lifetime of the League”; but “that the alternative view might well be taken that in defining the terms of the Mandate, the Council was taking executive action in pursuance of the Covenant (which of course was a convention) and was not entering into an agreement which would itself be a treaty or convention”. At the same time, the statement added: “This view, we put it no higher than a view that might be taken, would regard the Council's Declaration as setting forth a resolution of the Council, which would, like any other valid resolution of the Council, owe its legal force to the fact of having been duly resolved by the Council in the exercise of powers conferred upon it by the Covenant.”
31 In the Court's opinion, this modified view is not well-founded for the following reasons. For its confirmation, the Mandate for South West Africa took the form of a resolution of the Council of the League but obviously it was of a different character. It cannot be correctly regarded as embodying only an executive action in pursuance of the Covenant. The Mandate, in fact and in law, is an international agreement having the character of a treaty or convention. The Preamble of the Mandate itself shows this character. The agreement referred to therein was effected by a decision of the Principal Allied and Associated Powers including Great Britain taken on 7 May 1919 to confer a Mandate for the Territory on His Britannic Majesty and by the confirmation of its acceptance on 9 May 1919 by the Union of South Africa. The second and third paragraphs of the Preamble record these facts. It is further stated therein that “His Britannic Majesty, for and on behalf of the Government of the Union of South Africa … has undertaken to exercise it on behalf of the League of Nations in accordance with the following provisions”. These “provisions” were formulated “in the following terms”.
32 The draft Mandate containing the explicit terms was presented to the Council of the League in December 1920 and, with a few changes, was confirmed on 17 December 1920. The fourth and final paragraph of the Preamble recites the provisions of Article 22, paragraph 8, of the Covenant, and then “confirming the said Mandate, defines its terms as follows: …”.
33 Thus it can be seen from what has been stated above that this Mandate, like practically all other similar Mandates, is a special type of instrument composite in nature and instituting a novel international regime. It incorporates a definite agreement consisting in the conferment and acceptance of a Mandate for South West Africa, a provisional or tentative agreement on the terms of this Mandate between the Principal Allied and Associated Powers to be proposed to the Council of the League of Nations and a formal confirmation agreement on the terms therein explicitly defined by the Council and agreed to between the Mandatory and the Council representing the League and its Members. It is an instrument having the character of a treaty or convention and embodying international engagements for the Mandatory as defined by the Council and accepted by the Mandatory.
34 The fact that the Mandate is described in its last paragraph as a Declaration [exemplaire in the French text] is of no legal significance. The Mandates confirmed by the Council of the League of Nations in the course of 1922 are all called instruments [actes in the French text], such as the French Mandate for Togoland, the British Mandate for the Cameroons, the Belgian Mandate for East Africa (Ruanda-Urundi), etc. Terminology is not a determinant factor as to the character of an international agreement or undertaking. In the practice of States and of international organizations and in the jurisprudence of international courts, there exists a great variety of usage; there are many different types of acts to which the character of treaty stipulations has been attached.
35 Moreover, the fact that the Mandate confirmed by the Council of the League embodies a provision that it “shall be deposited in the archives of the League of Nations” and that “certified copies shall be forwarded by the Secretary-General of the League of Nations to all Powers Signatories of the Treaty of Peace with Germany”, clearly implies that it was intended and understood to be an international treaty or convention embodying international engagements of general interest to the Signatory Powers of the German Peace Treaty.
36 It has been argued that the Mandate in question was not registered in accordance with Article 18 of the Covenant which provided: “No such treaty or international engagement shall be binding until so registered.” If the Mandate was ab initio null and void on the ground of non-registration it would follow that the Respondent has not and has never had a legal title for its administration of the territory of South West Africa; it would therefore be impossible for it to maintain that it has had such a title up to the discovery of this ground of nullity. The fact is that Article 18 provided for registration of “Every treaty or international engagement entered into hereafter by any Member of the League” and the word “hereafter” meant after 10 January 1920 when the Covenant took effect, whereas the Mandate for South West Africa, as stated in the preamble of the instrument, had actually been conferred on and accepted by the Union of South Africa more than seven months earlier on 7–9 May 1919; and its terms had been provisionally agreed upon between the Principal Allied and Associated Powers and the Mandatory, in August 1919. Moreover, Article 18, designed to secure publicity and avoid secret treaties, could not apply in the same way in respect of treaties to which the League of Nations itself was one of the Parties as in respect of treaties concluded among individual Member States. The Mandate for South West Africa, like all the other Mandates, is an international instrument of an institutional character, to which the League of Nations, represented by the Council, was itself a Party. It is the implementation of an institution in which all the Member States are interested as such. The procedure to give the necessary publicity to the Mandates including the one under consideration was applied in view of their special character, and in any event they were published in the Official Journal of the League of Nations.
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37 Since the Mandate in question had the character of a treaty or convention at its start, the next relevant question to consider is whether this treaty or convention, with respect to the Mandate as a whole including Article 7 thereof,or with respect to Article 7 itself, is still in force. The Respondent contends that it is not in force, and this contention constitutes the essence of the First Preliminary Objection. It is argued that the rights and obligations under the Mandate in relation to the administration of the territory of South West Africa being of an objective character still exist, while those rights and obligations relating to administrative supervision by the League and submission to the Permanent Court of International Justice, being of a contractual character, have necessarily become extinct on the dissolution of the League of Nations which involved as a consequence the ending of membership of the League, leaving only one party to the contract and resulting in the total extinction of the contractual relationship.
38 The Respondent further argues that the casualties arising from the demise of the League of Nations are not therefore confined to the provisions relating to supervision by the League over the Mandate but include Article 7 by which the Respondent agreed to submit to the jurisdiction of the Permanent Court of International Justice in any dispute whatever between it as Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate. If the object of Article 7 of the Mandate is the submission to the Court of disputes relating to the interpretation or the application of the Mandate, it naturally follows that no Application based on Article 7 could be accepted unless the said Mandate, of which Article 7 is a part, is in force. This proposition, moreover, constitutes the very basis of the Applications to the Court.
39 Similar contentions were advanced by the Respondent in 1950, and the Court in its Advisory Opinion ruled:
“The authority which the Union Government exercises over the Territory is based on the Mandate. If the Mandate lapsed, as the Union Government contends, the latter's authority would equally have lapsed. To retain the rights derived from the Mandate and to deny the obligations thereunder could not be justified.” (I.C.J. Reports 1950, page 133.)
After observing that the international obligations assumed by the Union of South Africa were of two kinds, those “directly related to the administration of the Territory” and corresponding “to the sacred trust of civilization referred to in Article 22 of the Covenant” and those “related to the machinery for implementation” and “closely linked to the supervision and control of the League”, corresponding to the “‘securities for the performance of this trust’ referred to in the same article”, the Court went on to say with reference to the second group of obligations:
“The obligation incumbent upon a mandatory State to accept international supervision and to submit reports is an important part of the Mandates System. When the authors of the Covenant created this system, they considered that the effective performance of the sacred trust of civilization by the mandatory Powers required that the administration of mandated territories should be subject to international supervision… It cannot be admitted that the obligation to submit to supervision has disappeared merely because the supervisory organ has ceased to exist…” (Ibid., page 136.)
The findings of the Court on the obligation of the Union Government 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.
40 That the League of Nations in ending its own existence did not terminate the Mandates but that it definitely intended to continue them by its resolution of 18 April 1946 will be seen later when the Court states its views as to the true effect of the League's final act of dissolution on the Mandates.
41 What is relevant to the issue under consideration is the finding of the Court in the same Advisory Opinion on the effect of the dissolution of the League of Nations on Article 7 of the Mandate. After recalling the provisions of this Article, the Court stated:
“Having regard to Article 37 of the Statute of the International Court of Justice, and Article 80, paragraph 1, of the Charter, the Court is of opinion that this clause in the Mandate is still in force and that, therefore, the Union of South Africa is under an obligation to accept the compulsory jurisdiction of the Court according to those provisions.” (Ibid., page 138.)
42 It is also to be recalled that while the Court was divided on the other points involved in the questions put to it for an Advisory Opinion, it was unanimous on the finding that Article 7 of the Mandate relating to the obligation of the Union of South Africa to submit to the compulsory jurisdiction of this Court is still “in force”.
43 The unanimous holding of the Court in 1950 on the survival and continuing effect of Article 7 of the Mandate, continues to reflect the Court's opinion today. Nothing has since occurred which would warrant the Court reconsidering it. All important facts were stated or referred to in the proceedings before the Court in 1950.
44 The Court finds that, though the League of Nations and the Permanent Court of International Justice have both ceased to exist, the obligation of the Respondent to submit to the compulsory jurisdiction of that Court was effectively transferred to this Court before the dissolution of the League of Nations. By its own resolution of 18 April 1946 the League ceased to exist from the following day, i.e. 19 April 1946. The Charter of the United Nations, in accordance with Article no thereof, entered into force on 24 October 1945. South Africa, Ethiopia and Liberia, the three Parties to the present proceedings, deposited their ratifications respectively on 7 November 1945, 2 November 1945 and 13 November 1945, and in accordance with paragraph 4 of the said Article 110 all became original Members of the United Nations from the respective dates. They have since been subjected to the obligations, and entitled to the rights, under the Charter. One of these obligations is embodied in Article 37 of the Statute of this Court, which by Article 92 of the Charter “forms an integral part of the present Charter”, and by Article 93 thereof “All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice”. By the effect of these provisions the Respondent has bound itself since 7 November 1945, when the League of Nations and the Permanent Court were still in existence and when therefore Article 7 of the Mandate was also in full force, to accept the compulsory jurisdiction of this Court in lieu of that of the Permanent Court, to which it had originally agreed to submit under Article 7 of the Mandate.
45 This transferred obligation was voluntarily assumed by the Respondent when joining the United Nations. There could be no question of lack of consent on the part of the Respondent as regards this transfer to this Court of the Respondent's obligation under Article 7 of the Mandate to submit to the compulsory jurisdiction of the Permanent Court. The validity of Article 7, in the Court's view, was not affected by the dissolution of the League, just as the Mandate as a whole is still in force for the reasons stated above.
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46 The Second Objection of the Respondent consists mainly of an argument which has been advanced in support of the First Objection. It centres on the term “another Member of the League of Nations” in Article 7, of which paragraph 2 reads:
“The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations.”
47 It is contended that since all Member States of the League necessarily lost their membership and its accompanying rights when the League itself ceased to exist on 19 April 1946, there could no longer be “another Member of the League of Nations” today. According to this contention, even assuming that Article 7 of the Mandate is still in force as a treaty or convention within the meaning of Article 37 of the Statute, no State has “locus standi” or is qualified to invoke the jurisdiction of this Court in any dispute with the Respondent as Mandatory.
48 This contention is claimed to be based upon the natural and ordinary meaning of the words employed in the provision. But this rule of interpretation is not an absolute one. Where such a method of interpretation results in a meaning incompatible with the spirit, purpose and context of the clause or instrument in which the words are contained, no reliance can be validly placed on it.
49 In the first place, judicial protection of the sacred trust in each Mandate was an essential feature of the Mandates System. The essence of this system, as conceived by its authors and embodied in Article 22 of the Covenant of the League of Nations, consisted, as stated earlier, of two features: a Mandate conferred upon a Power as “a sacred trust of civilisation” and the “securities for the performance of this trust”. While the faithful discharge of the trust was assigned to the Mandatory Power alone, the duty and the right of ensuring the performance of this trust were given to the League with its Council, the Assembly, the Permanent Mandates Commission and all its Members within the limits of their respective authority, power and functions, as constituting administrative supervision, and the Permanent Court was to adjudicate and determine any dispute within the meaning of Article 7 of the Mandate. The administrative supervision by the League constituted a normal security to ensure full performance by the Mandatory of the “sacred trust” toward the inhabitants of the mandated territory, but the specially assigned role of the Court was even more essential, since it was to serve as the final bulwark of protection by recourse to the Court against possible abuse or breaches of the Mandate.
50 The raison d'être of this essential provision in the Mandate is obvious. Without this additional security the supervision by the League and its Members could not be effective in the last resort. For example, under Article 6 of the Mandate for South West Africa:
51 In actual operation the Council when satisfied with the report on the recommendation of the Permanent Mandates Commission would approve the report. If some Member of the Council had doubts on some point or points in the report, explanations would be asked from the representative of the Mandatory present. If the explanations were considered satisfactory, approval of the annual report would follow. In either case the approval meant the unanimous agreement of all the representatives including that of the Mandatory who, under Article 4, paragraph 5, of the Covenant, was entitled to send a representative to such a meeting to take part in the discussion and to vote. But if some measure proposed to the Mandatory on the recommendation of the Permanent Mandates Commission in the interest of the inhabitants of the mandated territory and within the terms of the Mandate and of Article 22 of the Covenant should be opposed by the Mandatory, it could not be adopted by the Council. Or if the Mandatory should adopt some measure in connection with its administration of the Territory notwithstanding the objection of the Permanent Mandates Commission and the Council that it was a violation of the Mandate, and should persist in carrying it out, a conflict would occur. This possibility is not a mere conjecture or hypothesis. As a matter of fact, the Respondent had more than once intimated its desire to incorporate South West Africa into the Union and the Permanent Mandates Commission of the League each time objected to it as being contrary to the Mandate; and the same idea of the Mandatory Power was also conveyed to the United Nations in 1946. If it should have attempted in the days of the League to carry out the idea contrary to paragraph 1 of Article 7, an important dispute would arise between it and the Council of the League.
52 Under the unanimity rule (Articles 4 and 5 of the Covenant), the Council could not impose its own view on the Mandatory. It could of course ask for an advisory opinion of the Permanent Court but that opinion would not have binding force, and the Mandatory could continue to turn a deaf ear to the Council's admonitions. In such an event the only course left to defend the interests of the inhabitants in order to protect the sacred trust would be to obtain an adjudication by the Court on the matter connected with the interpretation or the application of the provisions of the Mandate. But neither the Council nor the League was entitled to appear before the Court. The only effective recourse for protection of the sacred trust would be for a Member or Members of the League to invoke Article 7 and bring the dispute as also one between them and the Mandatory to the Permanent Court for adjudication. It was for this all-important purpose that the provision was couched in broad terms embracing “any dispute whatever … between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate … if it cannot be settled by negotiation”. It is thus seen what an essential part Article 7 was intended to play as one of the securities in the Mandates System for the observance of the obligations by the Mandatory.
53 In the second place, besides the essentiality of judicial protection for the sacred trust and for the rights of Member States under the Mandates, and the lack of capacity on the part of the League or the Council to invoke such protection, the right to implead the Mandatory Power before the Permanent Court was specially and expressly conferred on the Members of the League, evidently also because it was the most reliable procedure of ensuring protection by the Court, whatever might happen to or arise from the machinery of administrative supervision.
54 The third reason for concluding that Article 7 with particular reference to the term “another Member of the League of Nations” continues to be applicable is that obviously an agreement was reached among all the Members of the League at the Assembly session in April 1946 to continue the different Mandates as far as it was practically feasible or operable with reference to the obligations of the Mandatory Powers and therefore to maintain the rights of the Members of the League, notwithstanding the dissolution of the League itself. This agreement is evidenced not only by the contents of the dissolution resolution of 18 April 1946 but also by the discussions relating to the question of Mandates in the First Committee of the Assembly and the whole set of surrounding circumstances which preceded, and prevailed at, the session. Moreover, the Court sees no valid ground for departing from the conclusion reached in the Advisory Opinion of 1950 to the effect that the dissolution of the League of Nations has not rendered inoperable Article 7 of the Mandate. Those States who were Members of the League at the time of its dissolution continue to have the right to invoke the compulsory jurisdiction of the Court, as they had the right to do before the dissolution of the League. That right continues to exist for as long as the Respondent holds on to the right to administer the territory under the Mandate.
55 The Assembly of the League of Nations met in April 1946 specially to arrange for the dissolution of the League. Long before the session important events had taken place which bore a direct influence on its course of action at the indicated session. The Charter of the United Nations with its Chapter XI on non-self-governing territories and Chapters XII and XIII on the new trusteeship system embodying principles corresponding to those in Article 22 of the Covenant on Mandates and the Mandates System entered into force in October 1945 and the United Nations began to operate in January 1946, and the General Assembly held its first session in the following February. When the Assembly of the League actually met subsequently in April of the same year, it had full knowledge of these events. Therefore before it finally passed the dissolution resolution, it took special steps to provide for the continuation of the Mandates and the Mandate System “until other arrangements have been agreed between the United Nations and the respective mandatory Powers”. It was fully realized by all the representatives attending the Assembly session that the operation of the Mandates during the transitional period was bound to be handicapped by legal technicalities and formalities. Accordingly they took special steps to meet them. For example, these special circumstances show that the assembled representatives did not attach importance to the letter of the constitutional procedure. Under the Covenant the role of the Council in the Mandates System was preponderant. But the Council held no meeting to deal with the question of what should be done with the Mandates after the League's dissolution. Instead the Assembly by a resolution of 12 April 1946 attributed to itself the responsibilities of the Council. The resolution reads:
“The Assembly, with the concurrence of all the Members of the Council which are represented at its present session: Decides that, so far as required, it will, during the present session, assume the functions falling within the competence of the Council.”
On the basis of this resolution, the Assembly also approved the end of the Mandates for Syria, Lebanon and Trans-Jordan.
56 To provide for the situation certain to arise from the act of dissolution, and to continue the Mandates on the basis of a sacred trust, prolonged discussions were held both in the Assembly and in its First Committee to find ways and means of meeting the difficulties and making up for the imperfections as far as was practicable. It was in these circumstances that all the Mandatory Powers made declarations of their intentions relating to their respective Mandates. Each of the delegates of the Mandatory Powers present solemnly expressed their intention to continue to administer in each case the Territory: for the United Kingdom, “in accordance with the general principles of the existing mandates”; for France, “to pursue the execution of the mission entrusted to it by the League of Nations”; for New Zealand, “in accordance with the terms of the Mandate”; for Belgium, to “remain fully alive to all the obligations devolving on members of the United Nations under Article 80 of the Charter”; for Australia, “in accordance with the provision of the Mandates, for the protection and advancement of the inhabitants”. The statement by the delegate of South Africa, at the second plenary meeting of the Assembly on 9 April 1946 is particularly clear. After announcing that
“… it is the intention of the Union Government, at the forthcoming session of the United Nations General Assembly in New York, to formulate its case for according South West Africa a status under which it would be internationally recognized as an integral part of the Union”,
“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 compliance 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 responsibilities until such time as other arrangements are agreed upon concerning the future status of the territory.”
There could be no clearer recognition on the part of the Government of South Africa of the continuance of its obligations under the Mandate for South West Africa, including Article 7, after the dissolution of the League of Nations.
57 It was on the basis of the declarations of the Mandatory Powers as well as on the views expressed by the other Members that the League Assembly unanimously adopted its final resolution of 18 April 1946, the last two paragraphs of which read:
“3. Recognizes that, on the termination of the League's existence, its functions with respect to the mandated territories will come to 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.”
58 The Chinese delegate, in introducing the resolution in the Assembly relating to the possible effect of the League's dissolution on the problem of the Mandates from which the two passages are taken, stated:
“It was gratifying to the Chinese delegation, as representing a country which had always stood for the principle of trusteeship, that all the Mandatory Powers had announced their intention to administer the territories under their control in accordance with their obligations under the mandates system until other arrangements were agreed upon.”
The French delegate in supporting the resolution said that he wished:
Professor Bailey of Australia, Rapporteur, speaking as delegate of his country, welcomed:
“the initiative of the Chinese delegation in moving the resolution, which he supported. The Australian delegation had made its position clear in the Assembly—namely, that Australia did not regard the dissolution of the League as weakening the obligations of countries administering mandates. They regarded the obligation as still in force and would continue to administer their mandated territories in accordance with the provisions of the mandates for the well-being of the inhabitants.”
The delegate of the United Kingdom made it even clearer that there was agreement by all the Mandatory Powers when he “formally seconded the resolution on behalf of his Government”:
“It had been settled in consultation and agreement by all countries interested in mandates and he thought it could therefore be passed without discussion and with complete unanimity.”
59 It is clear from the foregoing account that there was a unanimous agreement among all the Member States present at the Assembly meeting that the Mandates should be continued to be exercised in accordance with the obligations therein defined although the dissolution of the League, in the words of the representative of South Africa at the meeting, “will necessarily preclude complete compliance with the letter of the Mandate”, i.e. notwithstanding the fact that some organs of the League like the Council and the Permanent Mandates Commission would be missing. In other words the common understanding of the Member States in the Assembly—including the Mandatory Powers—in passing the said resolution, was to continue the Mandates, however imperfect the whole system would be after the League's dissolution, and as much as it would be operable, until other arrangements were agreed upon by the Mandatory Powers with the United Nations concerning their respective Mandates. Manifestly, this continuance of obligations under the Mandate could not begin to operate until the day after the dissolution of the League of Nations and hence the literal objections derived from the words “another Member of the League of Nations” are not meaningful, since the resolution of 18 April 1946 was adopted precisely with a view to averting them and continuing the Mandate as a treaty between the Mandatory and the Members of the League of Nations.
60 In conclusion, any interpretation of Article 7 or more particularly the term therein “another Member of the League of Nations” must take into consideration all of the relevant facts and circumstances relating to the act of dissolution of the League, in order to ascertain the true intent and purpose of the Members of the Assembly in adopting the final resolution of 18 April 1946.
61 In further support of the finding of an agreement at the time of the dissolution of the League to maintain the status quo as far as possible in regard to the Mandates pending other arrangements agreed between the United Nations and the respective Mandatory Powers, it should be stated that the interval was expected to be of short duration and that in due course the different Mandates would be converted by mutual agreement into trusteeship agreements under the Charter of the United Nations. This expectation has been realized and the only exception is the Respondent's Mandate for South West Africa. In the light of this fact the finding of an agreement appears all the more justified.
62 To deny the existence of the agreement it has been said that Article 7 was not an essential provision of the Mandate instrument for the protection of the sacred trust of civilization. If therefore Article 7 were not an essential tool in the sense indicated, the claim of jurisdiction would fall to the ground. In support of this argument attention has been called to the fact that three of the four “C” Mandates, when brought under the trusteeship provisions of the Charter of the United Nations, did not contain in the respective Trusteeship Agreements any comparable clause and that these three were the Trusteeship Agreements for the territories previously held under Mandate by Japan, Australia and New Zealand. The point is drawn that what was essential the moment before was no longer essential the moment after, and yet the principles under the Mandates system corresponded to those under the Trusteeship system. This argument apparently overlooks one important difference in the structure and working of the two systems and loses its whole point when it is noted that under Article 18 of the Charter of the United Nations, “Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting”, whereas the unanimity rule prevailed in the Council and the Assembly of the League of Nations under the Covenant. Thus legally valid decisions can be taken by the General Assembly of the United Nations and the Trusteeship Council under Chapter XIII of the Charter without the concurrence of the trustee State, and the necessity for invoking the Permanent Court for judicial protection which prevailed under the Mandates system is dispensed with under the Charter.
64 The Third Preliminary Objection consists essentially of the proposition that the dispute brought before the Court by the Applicants is not a dispute as envisaged in Article 7 of the Mandate—more particularly in that the said conflict or disagreement does not affect any material interests of the Applicant States or their nationals.
65 In support of this proposition, the Respondent contends that the word “dispute” must be given its generally accepted meaning in a context of a compulsory jurisdiction clause and that, when so interpreted, it means a disagreement or conflict between the Mandatory and another Member of the League concerning the legal rights and interests of such other Member in the matter before the Court; that “the obligations imposed for the benefit of the inhabitants would have been owed to the League on whose behalf the Mandatory undertook to exercise the Mandate” and that “League Members would then, by virtue of their membership, be entitled to participate in the League's supervision of the Mandate, but would individually, vis-à-vis the Mandatory, have no legal right or interest in the observance by the Mandatory of its duties to the inhabitants”.
67 The Respondent's contention runs counter to the natural and ordinary meaning of the provisions of Article 7 of the Mandate, which mentions “any dispute whatever” arising between the Mandatory and another Member of the League of Nations “relating to the interpretation or the application of the provisions of the Mandate”. The language used is broad, clear and precise: it gives rise to no ambiguity and it permits of no exception. It refers to any dispute whatever relating not to any one particular provision or provisions, but to “the provisions” of the Mandate, obviously meaning all or any provisions, whether they relate to substantive obligations of the Mandatory toward the inhabitants of the Territory or toward the other Members of the League or to its obligation to submit to supervision by the League under Article 6 or to protection under Article 7 itself. For the manifest scope and purport of the provisions of this Article indicate that the Members of the League were understood to have a legal right or interest in the observance by the Mandatory of its obligations both toward the inhabitants of the Mandated Territory, and toward the League of Nations and its Members.
68 Nor can it be said, as argued by the Respondent, that any broad interpretation of the compulsory jurisdiction in question would be incompatible with Article 22 of the Covenant on which all Mandates are based, especially relating to the provisions of Article 7, because Article 22 did not provide for the Mandatory's submission to the Permanent Court in regard to its observance of the Mandate. But Article 7, paragraph 2, is clearly in the nature of implementing one of the “securities for the performance of this trust”, mentioned in Article 22, paragraph 1. It was embodied in the draft agreement among the Principal Allied and Associated Powers and proposed to the Council of the League by the representative of the United Kingdom as original Mandatory on behalf of South Africa, the present Mandatory for South West Africa. The right to take legal action conferred by Article 7 on Member States of the League of Nations is an essential part of the Mandate itself and inseparable from its exercise. Moreover, Article 7 reads: “The Mandatory agrees that…”, so that there could be no doubt about the scope and effect of the provision at the time of its stipulation.
69 While Article 6 of the Mandate under consideration provides for administrative supervision by the League, Article 7 in effect provides, with the express agreement of the Mandatory, for judicial protection by the Permanent Court by vesting the right of invoking the compulsory jurisdiction against the Mandatory for the same purpose in each of the other Members of the League. Protection of the material interests of the Members or their nationals is of course included within its compass, but the well-being and development of the inhabitants of the Mandated territory are not less important.
70 The foregoing considerations and reasons lead to the conclusion that the present dispute is a dispute as envisaged in Article 7 of the Mandate and that the Third Preliminary Objection must be dismissed.
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71 The Court will now consider the Fourth and last Preliminary Objection raised by the Respondent. In essence it consists of the proposition that if it is a dispute within the meaning of Article 7, it is not one which cannot be settled by negotiation with the Applicants and that there have been no such negotiations with a view to its settlement. The Applicants' reply is to the effect that repeated negotiations have taken place over a period of more than ten years between them and the other Members of the United Nations holding the same views as they, on the one hand, and the Respondent, on the other, in the Assembly and various organs of the United Nations, and that each time the negotiations reached a deadlock, due to the conditions and restrictions the Respondent placed upon them. The question to consider, therefore, is: What are the chances of success of further negotiations between the Parties in the present cases for reaching a settlement?
72 In considering the question, it is to be noted, first, that the alleged impossibility of settling the dispute obviously could only refer to the time when the Applications were filed. In the second place, it should be pointed out that behind the present dispute there is another and similar disagreement on points of law and fact—a similar conflict of legal views and interests—between the Respondent on the one hand, and the other Members of the United Nations, holding identical views with the Applicants, on the other hand. But though the dispute in the United Nations and the one now before the Court may be regarded as two different disputes, the questions at issue are identical. Even a cursory examination of the views, propositions and arguments consistently maintained by the two opposing sides, shows that an impasse was reached before 4 November 1960 when the Applications in the instant cases were filed, and that the impasse continues to exist. The actual situation appears from a letter of 25 March 1954 from the Permanent Representative of the Union of South Africa to the Chairman of the Committee on South West Africa:
“As the terms of reference of your Committee appear to be even more inflexible than those of the Ad Hoc Committee the Union Government are doubtful whether there is any hope that new negotiations within the scope of your Committee's terms of reference will lead to any positive results.”
73 This situation remains unchanged as appears clearly from subsequent communications addressed to the Chairman of the Committee on South West Africa on 21 May 1955 and 21 April 1956.
74 It is immaterial and unnecessary to enquire what the different and opposing views were which brought about the deadlock in the past negotiations in the United Nations, since the present phase calls for determination of only the question of jurisdiction. The fact that a deadlock was reached in the collective negotiations in the past and the further fact that both the written pleadings and oral arguments of the Parties in the present proceedings have clearly confirmed the continuance of this deadlock, compel a conclusion that no reasonable probability exists that further negotiations would lead to a settlement.
75 In this respect it is relevant to cite a passage from the Judgment of the Permanent Court in the case of the Mavrommatis Palestine Concessions (P.C.I.J., Ser. A, No. 2, p. 13) which supports the view stated. The Court said in respect of a similar objection advanced by the Respondent in that case to the compulsory jurisdiction under Article 26 of the Palestine Mandate, which corresponds to Article 7 of the Mandate for South West Africa:
“The true value of this objection will readily be seen if it be remembered that the question of the importance and chances of success of diplomatic negotiations is essentially a relative one. Negotiations do not of necessity always presuppose a more or less lengthy series of notes and despatches; it may suffice that a discussion should have been commenced, and this discussion may have been very short; this will be the case if a deadlock is reached, or if finally a point is reached at which one of the Parties definitely declares himself unable, or refuses, to give way, and there can be therefore no doubt that the dispute cannot be settled by diplomatic negotiation.
But it is equally true that if the diplomatic negotiations between the Governments commence at a point where the previous discussions left off, it may well happen that the nature of the latter was such as to render superfluous renewed discussion of the opposing contentions in which the dispute originated. No general and absolute rule can be laid down in this respect. It is a matter for consideration in each case.”
76 Now in the present cases, it is evident that a deadlock on the issues of the dispute was reached and has remained since, and that no modification of the respective contentions has taken place since the discussions and negotiations in the United Nations. It is equally evident that “there can be no doubt”, in the words of the Permanent Court, “that the dispute cannot be settled by diplomatic negotiation”, and that it would be “superfluous” to undertake renewed discussions.
77 It is, however, further contended by the Respondent that the collective negotiations in the United Nations are one thing and direct negotiations between it and the Applicants are another, and that no such direct negotiations have ever been undertaken by them. But in this respect it is not so much the form of negotiation that matters as the attitude and views of the Parties on the substantive issues of the question involved. So long as both sides remain adamant, and this is obvious even from their oral presentations before the Court, there is no reason to think that the dispute can be settled by further negotiations between the Parties.
78 Moreover, diplomacy by conference or parliamentary diplomacy has come to be recognized in the past four or five decades as one of the established modes of international negotiation. In cases where the disputed questions are of common interest to a group of States on one side or the other in an organized body, parliamentary or conference diplomacy has often been found to be the most practical form of negotiation. The number of parties to one side or the other of a dispute is of no importance; it depends upon the nature of the question at issue. If it is one of mutual interest to many States, whether in an organized body or not, there is no reason why each of them should go through the formality and pretence of direct negotiation with the common adversary State after they have already fully participated in the collective negotiations with the same State in opposition.
79 For the reasons stated above, the Fourth Objection like the preceding three Objections is not well-founded and should also be dismissed.
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80 The Court concludes that Article 7 of the Mandate is a treaty or convention still in force within the meaning of Article 37 of the Statute of the Court and that the dispute is one which is envisaged in the said Article 7 and cannot be settled by negotiation. Consequently the Court is competent to hear the dispute on the merits.
81 For these reasons,
by eight votes to seven,
finds that it has jurisdiction to adjudicate upon the merits of the dispute.
82 Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-first day of December, one thousand nine hundred and sixty-two, in four copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Empire of Ethiopia, the Government of the Republic of Liberia and the Government of the Republic of South Africa, respectively.
(Signed) B. Winiarski,
Judge Spiropoulos makes the following declaration:
1 Although the interest of the Governments of Liberia and Ethiopia that the Court should pass upon the violations by South Africa of the Mandate for South West Africa alleged by those Governments is entirely comprehensible, it is not possible for me to follow the reasoning of the Court which leads it to hold that it has jurisdiction.
2 Can it readily be found that the Mandate is a “treaty or convention” within the meaning of Article 37 of the Statute of the International Court of Justice; that the Mandate, as a “treaty”, survived the collapse of the League of Nations (of which the formal act of “dissolution” of the League of Nations was the result); that Article 7 of the Mandate—assuming the Mandate to be in force—can be relied on by States none of which is a “Member of the League of Nations”, that organization no longer being in existence?
3 It appears to me that any attempt to give an affirmative answer to these questions, and they are not the only ones which arise, must necessarily be based on arguments which, from the standpoint of law, do not seem to me to have sufficient weight.
4 In these circumstances it is not possible for me to concur in the Court's conclusion. To be upheld, the Court's jurisdiction must be very clearly and unequivocally established, and that does not seem to me to be the case here.
5 Judges Bustamante y Rivero and Jessup and Judge ad hoc Sir Louis Mbanefo append to the Judgment of the Court statements of their Separate Opinions.
6 President Winiarski and Judge Basdevant append to the Judgment of the Court statements of their Dissenting Opinions; Judges Sir Percy Spender and Sir Gerald Fitzmaurice append to the Judgment of the Court a statement of their Joint Dissenting Opinion; Judge Morelli and Judge ad hoc van Wyk append to the Judgment of the Court statements of their Dissenting Opinions.
(Initialled) B. W.
Separate Opinion of Judge Bustamante
1 Although I am in agreement with the reasoning and conclusions of the Judgment of the majority of the Court, I am availing myself of the right granted by Article 57 of the Statute of the International Court of Justice to develop in a separate opinion certain additional arguments based on my full personal interpretation of the international Mandates System in the light of the historical circumstances of its creation. I believe, moreover, that this process makes it possible to establish more clearly the responsibility of a Judge in the totality of a decision of the Court.
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2 The present proceedings were instituted by two separate Applications filed by the Agents of the Governments of Liberia and Ethiopia against the Republic of South Africa in its capacity as Mandatory for the territory of South West Africa, concerning various facts and situations related to the exercise of the Mandate. By a decision of the Court, the proceedings under the two Applications were joined. The Agent of the Republic of South Africa, without going to the merits of the claims, submitted four preliminary objections, the first two denying the jurisdiction of the Court, and the other two maintaining that the Applications are inadmissible owing to lack of fulfilment of certain conditions. The oral proceedings being over, the Court has to decide on the objections.
3 Since the bases of the objections are connected with the interpretation of the Mandate agreement for South West Africa, it seems to me necessary to examine first of all what, in the light of international law, are the nature and characteristics of the legal system of Mandates established by the Covenant of the League of Nations in 1919. The Mandate for South West Africa is but one example of the application of this system.
The creation of the international Mandates
4 At the end of the First World War, one of the problems to be dealt with was the determination of the fate of the colonial territories which, as a result of the war, had ceased to belong to the defeated States and were inhabited by peoples not yet able to stand by themselves. Under Article 119 of the Treaty of Versailles—28 June 1919—Germany renounced in favour of the Principal Allied and Associated Powers all her rights and titles over her oversea possessions, which they had already militarily occupied. These Powers did not themselves directly take over sovereignty over these possessions, but, on 6 May 1919, shortly before the signature of the Treaty of Peace, agreed to allot them, as Mandates, to certain allied States which had occupied them1. When the time came for the signature of the Peace Treaty, those Powers gave substance to their decision to confirm the Mandates which had been allotted, but decided at the same time to embody them in a new legal system placed under the authority and guardianship of the League of Nations. This was the origin of Article 22 of the Covenant.
5 This historical background shows that the idea of the Mandate appeared for the first time outside the ambit of the League of Nations, and even before its foundation. At the beginning, it was confined to a direct allocation of the territories to the Mandatory by the Powers, but the legal regime governing this allocation had not yet been defined. It was only at the time of the signature of the Covenant that the Powers operated the real transfer of the Mandates, as Mandators, to the League of Nations and—in collaboration with the other founder Members of that organization—embodied in the text of Article 22 the basic concepts and rules of the international Mandates, which might be summed up as follows:
(a) recognition of certain fundamental rights as belonging to the inhabitants of the underdeveloped territories;
(b) establishment of a system of tutelage for such peoples under an advanced nation acting in the capacity of Mandatory and “on behalf of the League of Nations”;
(c) attribution to States Members of the League of the «sacred trust of civilization », namely, the promotion of the well-being and development of the peoples concerned and the safeguard of their rights.
The sociological interpretation of the international Mandates
6 The events referred to above were indeed but the expression of the influence of a collective state of mind in the post-war world. At that time the general anti-colonialist conscience, which had been at work for some time, became particularly active and the preservation and protection of human rights appeared more and more incompatible with the survival of conquest and the maintenance of colonial regimes. President Wilson, with his “14 Points”, was the leader of this movement at the Peace Conference called by the victorious Powers to draft the Peace Treaty. He proclaimed the “nationalities principle” which was used in the last resort by the Conference as the criterion for its decisions. One of the main assertions of this principle was the right of every underdeveloped people to fulfil its own destiny and aspire to political independence under the protection and with the respect and assistance of the international community1.
7 The Allied and Associated Powers, in their wisdom, endorsed these concepts in the Covenant of the League of Nations. The League, whose assigned purposes were of universal scope, is generally agreed by legal writers to have acquired the significance of being the first organized expression of the international community. Indeed, one has only to read the introduction and Articles 23, 24 and 25 of the Covenant, together with the Preamble of Part XIII of the Treaty of Versailles concerning the International Labour Organisation, to realize that the creation of the League of Nations as a body designed to give organic structure and a general legal framework to the nations of the world as a whole was inspired by a new humane approach. This was a positive realization of ideas already perceived by Vitoria and Grotius in their thoughts concerning a joint community of purpose inspiring the coexistence of nations in a framework of law. In respect of the underdeveloped peoples, Article 22 of the Covenant reflects the new ideological requirements of the world in its statement of the two characteristic features of international tutelage: the well-being and development of the people under tutelage and the joint co-operation of the community of States in the achievement of these purposes.
8 In my view, consideration of the sociological factors which operated from the beginning of the 1919 system of tutelage must be of prime importance for the interpretation of the nature and significance of that system. Since the law is a living phenomenon which reflects the collective demands and needs of each stage of history, and the application of which is designed to achieve a social purpose, it is clear that the social developments of the period constitute one of the outstanding sources for the interpretation of law, alongside examination of the preparatory work of the technicians and research into judicial precedents. The law is not just a mental abstraction, nor the result of repeated applications of judicial decisions, but is first and foremost a rule of conduct which has its roots in the deepest layers of society.
The elements of the international Mandate
10 Three kinds of element must be regarded as making up the system of international mandates: the operative personal and real elements, and the purposes on the institution.
11 The purposes have already been mentioned in the foregoing paragraph: they are the well-being and development of the mandated peoples, so as to lead them on to higher stages of civilization and to political independence. These purposes are sought to be obtained through a complex legal system, which has fairly close similarities—in the views of writers—with the legal concepts of guardianship, trust and mandate in private law, and with the protectorate regime in public law. It seems to me that, without exaggerating these analogies, the rules governing other similar institutions should be adapted to international mandates to the extent that is reasonable, and that the sovereign nature of States permits.
12 In an objective sense the achievement of the purposes of the Mandate is entrusted, as a fiduciary attribution of responsibility, to an advanced nation in the capacity of Mandatory. The extent of the Mandate differs according to the degree of development of the people under tutelage, and a number of other circumstances (A, B, and C Mandates), but in none of those categories does the Mandatory acquire sovereignty over the mandated people (Art. 22, paras. 3 to 6).
13 As a real element of the system, mention must be made of the physical territory inhabited by the people under mandate. But it must be noted that this territory is inseparable from the population and constitutes an instrument to be used in its service. The territory is handed over to the Mandatory only temporarily for administrative purposes, and in no category of mandate can this be taken to signify a transfer of sovereignty.
14 Among the personal elements of an international mandate mention must, in my view, first be made of the populations under mandate; secondly, of the League of Nations and the States of which it is made up; and thirdly, the Mandatory State.
15 I do not here mention the Principal Allied and Associated Powers which, before the foundation of the League of Nations, had directly allocated the colonial possessions acquired as a result of the war to certain States as Mandatories. This allocation, which clearly involved legal acts, in reality represented a stage prior to the operation of the true international system created by the Covenant. The League of Nations found the appointment of the Mandatories and the handing over of the ex-colonial territories already accomplished. It received this heritage from the Powers and, on that basis, began its functions as an international tutelary institution.
17 The first step by the Council of the League of Nations was—in accordance with the advice of the Belgian Representative, M. Hymans, expressed in a report adopted by the Council on 5 August 1920—to request the Principal Allied and Associated Powers:
(a) to name the States to which they had decided to allocate the Mandates provided for in Article 22 of the Covenant;
(b) to inform it as to the frontiers of the territories to come under those Mandates;
(c) to communicate to it the terms and the conditions of the Mandates that they proposed should be adopted by the Council following the prescriptions of Article 22.
18 According to the Hymans report, when the Powers had replied to those questions the Council would take cognizance of the Mandatory Power appointed and would examine the draft Mandates communicated to it, in order to ascertain that they conformed to the prescriptions of Article 22 of the Covenant; it would then notify each State appointed as Mandatory that it was invested with the Mandate1.
19 It was in connection with this approach that the Powers informed the Council of the allocation of the Mandates to the countries which they had already appointed as Mandatories on 6 May 1919, and also sent it the drafts containing the terms and conditions of each Mandate. These drafts included that which the Government of Great Britain had directly agreed upon with the Government of the Union of South Africa for the Mandate for South West Africa. (This draft is known as the “Balfour Draft”2.) The Council approved it with some non-essential changes3, which were never the subject of reservations or complaints by either Great Britain or the Union of South Africa.
20 These details have to be mentioned to bring out the fact that the “Mandate Declaration” for South West Africa made by the Council of the League of Nations on 17 December 1920—at the same time as several other similar declarations—was in origin a direct bilateral convention, including the compromissory clause in Article 7, between Great Britain and the Union of South Africa. This convention was confirmed by the Council in accordance with Article 22, paragraphs 2 and 8, of the Covenant of the League of Nations.
21 After these events in the initial period of activity of the Council, the intervention of the Allied Powers as such, at least as far as appearances are concerned, vanished from the legal and political setting in which the new Mandates system was to operate. Those Powers continued, as Members of the League of Nations, to take part in debates in the Council and the Assembly, but any individual activity by them as Mandators or virtual sovereigns of the Mandated territories disappeared. Article 22 of the Covenant does not mention whether the Powers were to preserve for the future the power to appoint Mandatories where necessary, or whether that power was to be conferred on the League of Nations through the Council. I would personally opt for the latter presumption since, in my view, the intention of the Powers was to renounce finally any rights to the former colonies. Moreover, the question was no longer of any importance from the time of the promulgation of the Charter of the United Nations, Article 81 of which confers on the Organization the right to make such appointments.
22 The populations under Mandate are in my view an essential element of the system, because Article 22 of the Covenant recognized them as having various rights, such as personal freedom (prohibition of slavery), freedom of conscience and religion, equitable treatment by the Mandatory, and access to education, economic development and political independence (self-determination). They were thus recognized as having the capacity of legal persons, and this is why in the Mandate agreements those populations are, as I believe, parties possessed of a direct legal interest, although their limited capacity requires that they should have a representative or guardian.
24 The Mandatory exercises its function on behalf of or as delegated by the League of Nations (Article 22, paragraph 2). While, through the Council, it is for the League to “define” the degree of authority, control or administration to be exercised by the Mandatory (Article 22, paragraph 8), the latter gives its consent and accepts or refuses the function (Article 22, paragraph 2). Therefore one of the features of an international Mandate is that the Mandatory performs its function completely willingly.
25 In my view there is no valid reason for disregarding the applicability of the legal principles governing certain private law institutions in the field of international law. During the elaboration of legal doctrine recourse has sometimes been had—and this is well known—to municipal legal sources to establish and shape, on the principle of analogy, new systems to regulate the legal relationships between peoples. One such case is that of international tutelage, where the striking analogy with municipal guardianship can be seen in Article 22 of the Covenant of the League of Nations and in Chapters XI–XIII of the Charter of the United Nations. If that is true, I cannot see any reason for not recognizing the populations under international Mandate as having the status of legal persons and for not applying to them the principle of the necessity of their legal representation by “third parties” since these peoples have the rights recognized by the Covenant together with a certain capacity, although a diminished one, as in the case of wards under municipal law, and having regard to the fact that an organized international power (the League of Nations), personifying the international community, takes over, in accordance with the Covenant itself, the tutelage and protection of the populations concerned. The function assigned by the Covenant to the League of Nations, as a clearly characterized “tutelary authority” for such territories, comes particularly clearly out of the text of paragraph 2 of Article 22, according to which the Mandatory is required to exercise its functions “on behalf of the League”.
26 It seems to me that this point is of prime importance for the decision in this case because, starting from the recognition of the direct legal interest which the populations under tutelage possess in their mandate regime and having regard to their capacity as legal persons—for whom the League of Nations is the tutelary authority—many legal consequences flow therefrom. In the first place, the populations under Mandate are in fact,parties to the Mandate agreements and represented by the League of Nations. Secondly, the Mandatory's obligation to submit to the supervision of the tutelary authority and account for the exercise of the Mandate is obvious. Finally, from this concept it follows that all the Members of the Organization are jointly and severally responsible for the fulfilment of the “sacred trust” and for watching over the populations whose destiny has been put under their aegis. Evidence of this joint and several responsibility is the fact that paragraph 2 of Article 22 of the Covenant enables the capacity of Mandatory to be conferred on any Member of the League whatever, which means that all must be prepared to accept such a mission. Moreover, paragraph 4 of the same Article stipulates that the wishes of the communities formerly belonging to the Turkish Empire must be heard in the selection of the Mandatory from among the advanced nations. This link of responsibility between all the States Members and the underdeveloped countries is the natural effect of the “sacred trust” prescribed by the Covenant. In the light of these inferences it cannot be a matter for surprise if Article 7 of the Mandate for South West Africa grants States Members the right to apply the compromissory clause with regard to the Mandatory. These States are not “third parties” outside the Mandate but jointly and severally responsible associates of the tutelary organization entrusted with ensuring the proper application of the Mandate.
27 For these same reasons there can be no question, in my view, of qualifying as mere “humanitarian” or “moral” recommendations the provisions of the Covenant of the League of Nations and of the Charter of the United Nations in which the “sacred trust” of the States Members is described and established in respect of the populations of the Mandated or Trusteeship territories. This approach unjustifiably reduces the scope for the operation and application of the law, and confines within an ambit of mere equitable choice what in fact are clearly characterized rights pregnant with social implications. The “sacred trust” relates not only to duties of a moral order but also to legal obligations correlative with the rights recognized as belonging to the inhabitants of those territories by Articles 22 of the Covenant and 76 of the Charter. By these provisions international law claimed for such peoples the quality of human and legal persons. This is the same process of legal advance under which the abolition of slavery was first proclaimed and which then led to the promulgation of the Declaration of Human Rights1. By an interesting coincidence all the rights set forth in Articles 22 and 76 for the benefit of the under-developed populations are embodied—as well as many others—in this Declaration.
Characteristic features of the international Mandate
28 From all of the foregoing, it may be inferred that the Mandate System instituted by the Covenant of the League of Nations has the following characteristic features:
1. The Mandate is a complex institution which—at base—has similarities with other private and public law concepts but which—in substance—constitutes a form of tutelage in which certain excolonial populations, having regard to their partial incapacity, are the subject of protection by the civilized States assembled in a body—the League of Nations—which in fact represents the international community.
2. The Mandate, in respect of its external forms and general aspect, is a legal institution incorporated in international legislation (Article 22 of the Covenant of the League of Nations). The latter prescribes all the features, organs, conditions of and securities for the system and, in this sense, the Mandate is an integral part of the Treaty of Versailles, in which the Covenant is included. For each particular case the Mandate adds certain special details and conditions relating to a specific territory and Mandatory. The instrument in which these details are defined is given the name of “Mandate Declaration” or “Mandate Agreement”. The Mandate agreements or conventions constitute a subsequent phase of implementation, and represent the concrete or objective aspect of the system, its application to a particular case. But there can be no disjoining of the agreement from the system: the former takes its inspiration from the principles of the latter, and those principles are an integral part of the agreement. The system and the agreement operate as an inseparable whole whose elements, which are conditional one upon the other, form an organic unit.
3. The function of the Mandatory is a responsibility rather than a right (Article 22, paragraph 2 of the Covenant). The less developed the population under Mandate, the heavier the responsibility of that Mandatory, as in the case of C Mandates (Article 22, paragraph 6). It is for this very reason that the Mandatory must be willing to accept the Mandate (Article 22, paragraph 2); it is for the Mandatory to refuse the trust if it cannot bear the burden. This is one of the most characteristic features of the system: the Mandatory signifies its acceptance not as a party with an interest in the prospects flowing from the contract but as a collaborator of the international community in its trust of civilizing a certain under-developed people. It is one of those cases where the bilateral aspect of the agreement does not seek to establish or suppose any real balance between the obligations and the rights of the parties. The legal concept is nearer that of the unilateral contracts of private law rather than that of synallagmatic contracts. The rights granted to the Mandatory are for the purpose only of the better fulfilment of its obligations towards the country under tutelage. The concept of obligation predominates. Once the Mandate has been accepted, the mission of the Mandatory becomes a mission which, to a varying extent, must always surpass the Mandatory's own interests and, first and foremost, serve the interests of the population under tutelage. The C Mandates do not constitute an exception to this rule. It is true that under them the Mandatory enjoys wider powers and may even legitimately obtain greater economic benefits by the use made of the ex-colonial territory; but as far as the Mandatory is concerned, the territory is res aliena as in all the Mandates, and its inhabitants are legal persons who will one day have the capacity to decide for themselves.
4. An international Mandate is, by its very nature, temporary and of indeterminate duration. Its duration is limited by the fulfilment of the essential purpose of the Mandate, that is to say, by the completion of the process of development of the people under tutelage through their acquisition of full human and political capacity. It follows that any Mandate agreement remains in force until such time as the people concerned attains the desired degree of structural organization as a nation.
5. The corollary to the two foregoing paragraphs is that an international Mandate, through which tutelage is exercised, does not and can never imply a transfer of sovereignty to the Mandatory or the annexation of the mandated territory by the tutelary State. It is only at the conclusion of the Mandate that the people can choose for itself between independence or incorporation in the administering State. It is true that C Mandates (Article 22, paragraph 6 of the Covenant) brought the mandated territory into a closer relationship with the Mandatory by the fact that the latter applied its own laws to the territory in question; but this extension of the legislative powers of the Mandatory does not imply an act of sovereignty on its part, but simply the application of a prior authorization with regard to administration contained in the Mandate agreement, with a view to adapting the territory to the legislation of a more advanced country.
6. The tutelary organization's right of supervision over the exercise of the Mandate is an institutional rule in the Mandates System, expressly provided for by Article 22 of the Covenant (paragraphs 7, 8 and 9). This right is not just an adjectival or procedural formality, but an essential element on which adherence to the purposes of the system and the efficiency of its application depend. It should not be forgotten that in the Mandate agreements one of the parties, the beneficiary under tutelage, has no possibility of entering into discussion with the other party, the Mandatory, on an equal footing, having regard to its lack of legal capacity. Thus, the only way of safeguarding the rights of the people under Mandate is to entrust the supervision of the Mandatory's acts to the Mandator or tutelary organization which, on the one hand, represents the ward and, on the other, personifies the interest of the States of the world assembled in an association. Absence of a supervisory organ would be tantamount to unilateral and arbitrary exercise of the Mandate and would inevitably lead to annexation. A Mandate so mutilated would be of an essentially different nature from that provided for in Article 22 of the Covenant.
7. Another special feature of the Mandates System is that its effects extend to all the States Members of the League of Nations as a consequence of the “sacred trust of civilization” conferred on them by Article 22 of the Covenant. This extension is reflected in responsibilities and obligations with a view to the protection of the peoples under Mandate, either in the internal or administrative activities of the League, or on the judicial plane when the Mandate agreements contain a compromissory clause.
The Mandate Agreements
29 In seeking to establish the nature of the Mandate agreements there should be no hesitation over the fact that they are instruments in which a contractual element is present. There is a combination of intentions. I shall not deal with the “pre-agreement” by which one or more Powers allocated the Mandate for a particular territory to another State: this is a matter outside the League of Nations. But once this “pre-agreement” came into the hands of the League of Nations, the formulation of the agreement began: the Mandatory's acceptance is a priori presupposed because it had already expressed that acceptance directly to the Power concerned. If that Power had also defined the conditions of the Mandate, there remained only to obtain the confirmation of the Council of the League and to specify that the Mandate would be exercised by the Mandatory on behalf of the League of Nations. The agreement was then concluded. But if the degree of authority, control or administration to be exercised by the Mandatory had not been the subject of direct agreement between the Power and the State Member appointed as Mandatory, the Council was to define such matters explicitly (Article 22, paragraph 8, of the Covenant). This was the “Mandate Declaration”, which has currently always and everywhere been known as the “Mandate agreement”. Acceptance of this Declaration by the Mandatory might certainly be explicit, but it was always implied, not only because the Declaration was transmitted or notified to all the States Members—including the Mandatory and without objection on its part—but, above all, because in fact the very exercise of the Mandate was objective evidence of the agreement of the Mandatory. It may be added that this almost unilateral appearance of the Council's “Declaration” is not in any way surprising, having regard to the nature—explained above—of the international Mandate institution. More than a contract, it is a statute the basic conditions of which are laid down in advance by Article 22 of the Covenant; in regard to these, the Mandatory has only the alternatives of acceptance or refusal. The strictly contractual part of the “Mandate agreement” is represented only by the practical details in each case relating to the Mandatory's degree of authority and the conditions with which its administration must comply. But it is self-evident that in this case the “Declaration” is but the result of a prior understanding between the Council and the Mandatory. It should be added that as regards these details, the Council does not negotiate with the Mandatory: under paragraph 8 of Article 22 of the Covenant, the Council “defines” and it is for the Mandatory to accept the responsibility or not. It must be reiterated that an international Mandate is first and foremost a responsibility and not an exchange of balancing services as in ordinary bilateral contracts.
30 There is no indication in paragraph 8 of Article 22 of the Covenant from which it may be inferred that the rules defined by the Council to establish the conditions of each Mandate were to take the form of a solemn treaty. In fact, the customary rule adopted in the case of South West Africa, and in other cases, was that it took the form of a Declaration by the Council, as referred to above. Moreover, the final terms of the text of this kind of declaration by the Council provides for deposit of the original in the archives of the League of Nations, after forwarding of certified copies to the secretariat and to the Powers Signatories of the Treaty of Versailles. Considering that the “Declaration” by the Council is an official public instrument of the League of Nations, in my view that instrument implies or contains of itself the formal registration of the Mandate to which it refers, without need of any other formality. This form of registration of and publicity for the declaratory instruments of the Council in respect of the Mandate agreements constitutes a special procedure somewhat different from but just as effective as that prescribed in Article 18 of the Covenant for treaties. Moreover, as the International Mandates system is an institution related to the internal administration of the League of Nations, it is not at all odd that solemn forms should not have been used.
The Compromissory Clause
31 The texts of the “Declarations” or “Mandate agreements” which were issued immediately after the establishment of the League of Nations contain a clause which does not appear in the text of Article 22 of the Covenant, although it must in the spirit of the Covenant be regarded as a necessary security for the system. This is the “compromissory clause” under which the Mandatory “agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice”. (See for example Article 7 of the Mandate for German South West Africa, dated 17 December 1920, Memorial submitted by Liberia, annex B, page 172.) Having regard to its content, Article 7 of the Mandate of 17 December 1920 was but a provision equivalent to the “optional clause” in Article 36, paragraph 2, of the Statute of the Permanent Court of International Justice, this Statute having been ratified by the Union of South Africa nine months later, on 4 August 19211.
32 Moreover this provision of Article 7 is but the implementation of Article 14 of the Covenant of the League of Nations which established recourse to the Permanent Court as the final, although voluntary, means of settling international disputes between States. In this case, recourse to judicial jurisdiction was desirable and even urgent, having regard to possible frictions which might arise between the tutelary body or its members and the Mandatory. A supervisory regime, like that of the Mandate System where the supervised entity is a sovereign State, can create situations and cause controversies of an extremely delicate nature, settlement by law being the only appropriate form. Moreover, the insertion of this clause in the Mandate agreement merely satisfied the wishes expressed in Article 14 of the Covenant in favour of the jurisdiction of the Permanent Court of International Justice. Again, this safeguard of recourse to judicial jurisdiction is universally accepted for the settlement of all sorts of litigious situations or situations subject to legal interpretation, so that its inclusion in a Mandate agreement does not involve any anomaly.
33 From the foregoing considerations it may be concluded that the compromissory clause, just as much as the rest of the agreement, is one of the major provisions of the Mandate system.
34 During the proceedings there has been discussion as to whether, in the Mandate regime, the jurisdiction of the International Court constitutes a form of supervision over the Mandatory's exercise of its functions or, more correctly, an integral part of the Mandate supervision machinery, another phase of which is the administrative supervision for which the Council of the League of Nations was made responsible.
35 It is clear that a decision by the Court in a case of this kind implies, in fact, a form of supervision over the acts of the Mandatory, in the sense that it acts as a regulator to define the true meaning and scope of the Mandate as a legal institution and to correct possible deviations by any party in its application. But it cannot be said that the Court is a supervisory organ with regard to the exercise of the Mandates, because its function is strictly legal and not administrative or political, and because a Court cannot on its own initiative institute supervisory measures, its functions being exercised only at the request of the parties, which virtually negatives the effectiveness of the supervision. In my view, the true significance of the clause providing for recourse to the Court is that of a security for both parties as to the proper application of the Mandate and the proper exercise of supervision.
36 The Mandate agreements which contain the compromissory clause introduce a new personal element into the convention: that of “another Member of the League of Nations”. It is for the other Members of the League of Nations to act as a party in the judicial controversy, against the Mandatory State. Since this provision has given rise to discussion and to doubt as to its interpretation, it seems to me necessary to go into the point.
37 I have already said that the new international Mandate institution, incorporated into the Covenant as a legal advance and based on the concept of tutelage, was one in which, by reason of its human rights objectives, each of the Members of the League of Nations and, in general, the entire international community of which the League was probably the first organized expression, had an interest. Should a dispute arise between the League and a Mandatory, all the States Members would have the same legal interest as the League in the dispute, and would be affected to the same extent by violations of the agreements, one or more of those States having the right to appear before the Court to defend the common cause. But there is a further reason which obviously the Council of the League of Nations took care to provide for in the compromissory clause. Under Articles 34 and 35 of the Statute of the Permanent Court, only States and the States Members of the League could be parties in cases before the Court in contentious proceedings. The League, which was not a State, could only request “advisory opinions” (Article 14 of the Covenant); thus should an insoluble difference of view with the Mandatory arise, the intervention of the States Members, the jointly responsible constituent elements of the League, became indispensable as parties to the proceedings.
The dissolution of the League of Nations and the new Trusteeship System of the San Francisco Charter
38 Obviously the provisions of the Covenant which had instituted the international Mandates System did not envisage the possibility of the dissolution of the League of Nations and did not foresee its possible effects on the Mandate agreements in force. In fact, however, the dissolution occurred in April 1946 and the question arises whether that event had as a consequence the total or partial lapsing of the Mandates instituted in accordance with the Covenant of 1919.
39 In connection with this question, it is desirable, once more, to recall the nature of the Mandates system and the role of the parties to the separate agreements concluded in each case.
40 In the Mandate agreements, the peoples under tutelage, lacking a full capacity, were represented, by the League of Nations which was to assume the protection of their interests. The question therefore is whether the disappearance of a guardian on the international plane is sufficient to alter or to cause to lapse agreements which it had concluded in favour of the country under Mandate with third States acting as Mandatories.
41 I can find no justification for this argument concerning lapse. After the dissolution, the two parties principally concerned—the country under tutelage and the Mandatory—remained the same; and the purposes of the Mandate had to continue to be implemented, for the peoples under tutelage still had an urgent need of assistance and guidance. If, therefore, the two parties survived as such and if the purposes of the agreement were still in course of implementation when the League was dissolved, the continuance of the Mandate would appear to be beyond question. It has to be stressed that in principle the duration of an international Mandate extends over an indefinite and frequently long period, up to the moment when the full capacity—moral, civic and political—of the subject under tutelage is achieved. The question whether the disappearance of the League of Nations, as the tutelary body, raises an insurmountable obstacle to the survival of the Mandate remains to be considered.
42 This contention is based on the premise that the League being a principal or direct party to the Mandate agreement, the disappearance of that party causes the Mandate to lapse. But the view has already been advanced that the intervention of the League, apart from its quality as a high international authority, was no more than that of a representative, in the role of a protecting or tutelary body, of the party really concerned, which is the country under tutelage. In such circumstances, the disappearance of a guardian in the realm of municipal private law would raise no difficulty since the legal systems of States have provided means of replacing a guardian who has died or is prevented from or unwilling to continue as guardian, without any disturbance or interruption of the guardianship. There can be no perfect analogy on the international plane, but I think that just because there is an absence of legislative rules on the subject the system is a great deal more flexible, having regard to the element of the sovereign power of States which create their law as and when the need arises. What is of principal importance in the present case is to maintain in action the machinery of the Mandate in order to render assistance to peoples under tutelage. In fact, the situation would be one where the only element lacking for the entire working of the system would be the body entrusted with supervisory power by the League of Nations. But a number of events occurred immediately before or simultaneously with the dissolution of the League which opened the way to filling that gap and providing that element.
43 The situation created in the world by the war made it impossible for the old League of Nations to survive. In these circumstances, a considerable number of States, which included the Principal Allied and Associated Powers and the majority of the States which in 1919 had participated in the foundation of the League of Nations, met at San Francisco in April 1945, immediately after the Second World War, to create the United Nations, the Charter of which is dated 26 June 1945. The principles and essential purposes of this new body coincided, in the main, with those of the League of Nations. So far as the institution of Mandates was concerned, the Charter of the United Nations maintained, in principle, the concept of tutelage as it had appeared in the Covenant of 1919, although in a much more developed form in the new instrument in which the expression “International Trusteeship System” replaced the name “Mandate” (Articles 75 et seq.). The Charter expressly provided for the transformation of the old “Mandates” of the League of Nations into “Trusteeship Agreements” subject to the new system, in accordance with the rules and conditions, indicated in Articles 76, 77, paragraph 1(a), 79, 80, 81 and 85. These Articles will be analysed hereafter; what is relevant to my reasoning is the noting of the following facts: (a) that the Charter of the United Nations made provision for the maintenance of the old Mandates and provided means for their transformation into “Trusteeship Agreements” in conformity with the new system; (b) that consequently, according to the opinion of the founders of the United Nations, the dissolution of the League was not to affect the normal functioning of the Mandates in essence but only in form.
44 Moreover, the Assembly of the League of Nations expressed a similar criterion in one of its final resolutions, the resolution dated 18 April 1946, on the eve of its dissolution. That resolution read as follows:
“The Assembly … recognizes 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.
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.” (Italics added.) (L. of N., O. J., Spec. Sup. No. 194, pp. 58, 278-279.)
45 All this shows clearly that in the opinion of the founders of the United Nations and also according to the criterion of the Assembly of the League of Nations, the dissolution of that latter body was not intended to put an end to the continuity or the functioning of the Mandates instituted under Article 22 of the Treaty of Versailles. The “continued existence” of the Mandate, referred in the Applications, follows from the Charter itself and from the resolution of 18 April 1946.
46 The above findings do not in any way imply an intention to establish or to regard as established the principle of automatic or ex officio succession of the United Nations to the League of Nations. It has been sufficiently clearly shown, in the course of the written and oral proceedings in this case, that the theory of automatic succession is inconsistent with the historical background of the discussions and resolutions of the two great bodies during the transitional period in 1945–1946. What I wish to emphasize is that the San Francisco Charter provided for the necessary machinery to render viable the continuance of Mandates after compliance, in each particular case, with certain formalities.
47 The time has now come to consider specific provisions of the Charter of the United Nations regarding the Mandates instituted during the period of the League of Nations.
∗ ∗ ∗
48 The San Francisco Charter reveals definite progress beyond the Covenant of the League of Nations in respect of the development of the institution for the protection of dependent, under-developed or former colonial countries. There is, in the first place, specific recognition of the principle that the interests of the inhabitants of these territories are paramount, and confirmation of the acceptance by the Member States of the United Nations of the “sacred trust” of assisting the peoples who have not yet attained a full measure of self-government (Article 73 of the Charter). To this end there was instituted an “international Trusteeship System” the basic objectives of which are laid down in Article 76: the promotion of social, economic and political advancement, preparation for independence, respect for fundamental human freedoms without distinction as to race, sex, language or religion.
49 As to the position of old Mandates in relation to the new Trusteeship System under the Charter, Article 77, paragraph 1, subparagraph (a), provided in a mandatory manner (“shall apply”) for the application of the new Trusteeship System to territories now held under Mandate, although the second paragraph of the same Article, as well as Article 79, refer to subsequent agreements for the determination of the terms and conditions in which trusteeship shall be established. In the interval, that is to say between the promulgation of the Charter and the entry into force of an agreement, nothing in the new provisions of the Charter 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” (Article 80, paragraph 1, of the Charter). But, immediately thereafter, paragraph 2 of the same Article provides that paragraph 1 “shall not be interpreted as giving grounds for delay or postponement of the negotiation and conclusion of agreements for placing mandated and other territories under the Trusteeship System…”
50 In my opinion, this wording of paragraph 2, which is connected with that of Articles 77 (para, 1 (a)) and 81, clearly defines the obligation—the urgent obligation it might be said—of Mandatory States without delay to put into force a new Mandate agreement. This interpretation is fully warranted by a logical reasoning since the intention of the authors of the Charter cannot have been to leave the mandated territories indefinitely to the unfettered discretion of the Mandatory alone. To have done so would have been to distort the character of this legal system as well as the intentions of its founders. It would have amounted to what has been called the “freezing” of the Mandate, which would practically be equivalent to annexation. The best proof that this interpretation is correct, is that all the Mandatory States which held Mandates before the drawing up of the Charter—except the Republic of South Africa—ratified new agreements with the approval of the United Nations. The General Assembly, which in this case is the official body for authoritative interpretation, has invariably considered that an obligation exists for those States to adapt their Mandates to the new Trusteeship System, and for their part the Mandatory States have subscribed to this view. There is thus a very clear concurrence of interpretation to which no reasonable objection can be raised.
51 The objection has been raised that if Article 81 of the Charter is to be interpreted-in the light of Articles 77 (para, 1, sub-para. (a)) and 80 (para. 2) as a mandatory provision imposing upon Mandatory States an obligation to conclude Trusteeship agreements, this would involve the legal absurdity of compulsion to conclude a contract the characteristic feature of which is “voluntariedad”, that is a freedom of decision to accept or reject. No legislative or judicial power could, in principle, legally require such an aberration. But that reasoning has no relevance to the point under discussion: the true legal concept which arises, in connection with the articles of the Charter to which reference has been made, is quite different. Each of the States which became Members of the United Nations, by virtue of their voluntary acceptance and signature of the Charter, assumed all the obligations flowing therefrom, and, consequently, if one of those Member States is a Mandatory, it at the same time freely accepted the obligation to renew or to transform the Mandate into a Trusteeship agreement. The negotiation of a new agreement is in no sense an act imposed by force: it is a pact which was concluded at the time when the Charter was signed by the Mandatory.
52 It has been maintained that after the dissolution of the League of Nations it was not indispensable—as being the only solution—to effect the transformation of the Mandate Agreements into Trusteeship Agreements in accordance with Chapters XII and XIII of the Charter, since Chapter XI and, in particular, Article 73, indicates the normal course for the functioning of League of Nations Mandates without having to have recourse to the system of Trusteeship Agreements introduced by the United Nations. The only obstacle—it is said—to the continuance of the normal exercise of the Mandate, after the dissolution of the League, is the absence of the supervisory power entrusted to the Council under Article 22, paragraph 8, of the Covenant and Article 6 of the Agreement of 17 December 1920. The Council having disappeared, the machinery for supervision comes to a stop. But this gap is filled, so far as the new situation is concerned, by Article 73, paragraph (e), which lays down a new and less demanding form of supervision—but still a form of supervision-and again completes the institutional framework of the system in both its aspects: obligations of the Mandatory (Preamble and paragraphs (a) to (d)) and supervision of its action (paragraph (e)).
53 I am unable to agree with this view because it is not in conformity with either the wording or the system of the Charter. Chapter XI constitutes a broad and general statement of principles, duties and policies which, in reality, cover all categories of non-self-governing territories (the old Protectorates and Colonies of the Powers which had just been victorious in the Second World War, the detached Colonies of the defeated States, the Mandated territories born of the First War and territories which will voluntarily be placed under trusteeship in the future). But it is Chapters XII and XIII which govern in a concrete way the new Trusteeship System the basic objectives of which are described in Article 76 and of which the transformation of Mandates into Trusteeship Agreements is specified in Articles 77, paragraph i, sub-paragraph (a), 79, 80 and 81. These are, consequently, the relevant Articles of the Charter relating to Mandates and not Articles 73 and 74 of Chapter XI. As was so well said by a Member of the Court, that latter Chapter was designed to incorporate to some extent in the new general protective regime established by the Charter those territories which the victorious Powers held under their sovereignty before the conflict and to guarantee to those territories some international supervision, though one exercised with great flexibility.
The Jurisdiction of the Court in the Case, according to the Applications
54 The Applications submitted by the Governments of Liberia and Ethiopia found the jurisdiction of the Court on Article 7 of the Mandate for German South West Africa and Article 37 of the Statute of the International Court of Justice, having regard to Article 80, paragraph 1, of the United Nations Charter.
55 The second paragraph of Article 7 of the Mandate agreement of 17 December 1920 accepted by the Union of South Africa as Mandatory, provides as follows:
“The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations.”
“Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.”
Paragraph I of Article 80 of the Charter provides:
“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.”
57 On the basis of these provisions, the reasoning of the Applicants may be expressed as follows: the Mandate for South West Africa, including Article 7 which contains the compromissory clause, is a convention in force. Since a dispute which cannot be settled by direct means has arisen between Liberia and Ethiopia on the one hand and the Republic of South Africa as Mandatory for South West Africa on the other, the solution must be sought by recourse to international justice. The Permanent Court of International Justice having disappeared, there remains only to apply Article 37 of the Statute of the International Court of Justice which specifically provides for the jurisdiction of the Court in this kind of circumstance.
The Preliminary Objections
60 Succinctly the content of the objections can be summarized as follows:
1. The Mandate is not a convention in force.
2. The Mandate agreement, or Declaration by the Council of the League of Nations dated 17 December 1920, is not even a convention, but simply a preparatory document or outline of what should have been the true Mandate agreement (amended Submission by the Respondent read at the last public hearing).
3. The compromissory clause contained in the Mandate agreement (Article 7) does not fulfil the conditions required for validity by the special nature of this clause.
4. The dispute which is the subject of the controversy does not fulfil the conditions laid down in Article 7 of the Mandate agreement.
5. Consequently, Article 37 of the Statute of the Court is not applicable. The Court has no jurisdiction in this case.
First Preliminary Objection
61 The Government of the Republic of South Africa denies the jurisdiction of the Court to hear and to determine this case, alleging that “the Mandate for German South West Africa, upon Article 7 of which the Applicants' claim to jurisdiction is founded, has lapsed, in the sense … that it is no longer a treaty or convention in force within the meaning of Article 37 of the Statute of the Court”.
62 The grounds supporting this objection may be put as follows:
(a) The Mandate agreement for South West Africa was a convention between the League of Nations and the Union of South Africa as Mandatory. But the League of Nations having been dissolved in April 1946, one of the contracting parties disappeared and, therefore, the convention as such lapsed. All that remained in force was the objective or real fact of the existence of a territory and a population which, since 1920, had been held by the Respondent State under a special Mandate status. With the disappearance of the League of Nations, the former contractual provision assigning supervision over the Mandate to the Council of the extinct League (Article 6 of the Mandate Agreement) became impossible of implementation and it remained for the Mandatory only to perform unilaterally the institutional obligations of a general nature provided in Article 22, paragraphs 1, 2, 3 and 6, of the Covenant of 1919 and reproduced in Articles eto 5 of the Council's “Declaration” of 17 December 1920. To sum up, the Respondent maintains that it continues to exercise the Mandate as an objective institution subject to the basic rules of Article 22 of the Covenant, but that it is exempt from the supervision provided for as a non-essential or merely procedural contractual obligation in paragraphs 7 and 9 of Article 22 (Article 6 of the Mandate agreement) since the supervisory organ—the Council of the League of Nations—had ceased to exist. The Mandate, in the sense of a convention, had lapsed.
But I think I have shown in the foregoing paragraphs that the dissolution of the League of Nations does not in itself constitute, according to my view, a sufficient reason for declaring the Mandate agreement to have lapsed, since the real parties to the agreement, namely the population under Mandate and the Mandatory, remain unchanged. The League of Nations, as tutelary representative of that population, could be replaced in that function; and it has been in fact by the United Nations in every case where the Mandatory became a Member of the new Organization by signing the San Francisco Charter. It was then for the competent organs of the United Nations to take over the supervisory authority which the Covenant assigned to the Council of the League of Nations: all that was required was the prior conclusion of a new Mandate agreement with the Mandatory as provided for in Article 79 of the Charter.
Moreover the League of Nations in its resolution of 18 April 1946, and the United Nations in the Charter, recognized the survival of the Mandates after the dissolution of the League. After that dissolution, the former Mandates maintained their “continued existence”, that is to say, their quality of “international conventions in force”.
In this preliminary phase of the proceedings the Court has to decide on the following vital matter: the present force of the Mandate Agreement for South West Africa; for whether it has or has not jurisdiction to hear the present case depends on whether or not that Agreement is in force within the meaning of Articles 36 and 37 of the Statute. In the light of all of the foregoing considerations there can in my view be no doubt that the answer is in the affirmative: the Mandate Agreement continues and is in full force.
The Respondent has contended that the Republic of South Africa's title as Mandatory was received under the former League of Nations Mandate regime and that, therefore, the Mandatory had no obligation to submit to the new United Nations regime, since there is no legal link of automatic succession between the two world organizations. If the Republic of South Africa had remained outside the United Nations and not become a Member of it, the argument might probably have seemed to be well founded. But the Union of South Africa was one of the Founder Members of the United Nations; it took part in all the proceedings for the dissolution of the League of Nations and in the discussion of the San Francisco Charter; it subscribed to the Charter without making any reservation at the time of signing it (which would moreover have been unusual and unacceptable); therefore it accepted that instrument in its entirety with its principles and obligations, among which were the inclusion of the former Mandates in the new trusteeship regime (Article 80, paragraph 2, of the Charter taken in conjunction with Articles 77, paragraph I (a), 79 and 81). These Articles taken together obliged the Mandatory State to negotiate and conclude as soon as possible a trusteeship agreement in replacement of the former Mandate agreement. To sum up, the fact of the Republic of South Africa becoming a Member of the United Nations was the legal link which as far as it was concerned established continuity between the two world organizations and between the two systems for the protection of the former German colonies.
It has also been argued that the supervisory system of the Charter is different from and more exigent than that of the Covenant of the League; that the supervisory organs under the Charter are composed and operate differently from those of the dissolved League, and that the Mandatory State cannot be compelled to sign a contractual instrument which would render its obligations to the supervisory organ more burdensome and onerous. The contention is arguable in principle or on speculative grounds, since as supervision—as has been said—was an essential part of the Mandate system, there are good reasons for believing that such supervision would the better fulfil its role and objectives to the extent that it became severer and more perfected, despite the reticence of the Mandatory. But leaving aside this aspect, the certain fact is, as has been said in the preceding paragraph, that the Republic of South Africa, as a Member of the United Nations, had accepted as a new norm the supervisory regime of the Charter. The only way of obtaining mitigation of that regime or the maintenance of the supervisory machinery established by the former Mandates would be to negotiate a new trusteeship agreement with the competent organ of the United Nations as provided for in Article 79 of the Charter. If this had been the first step taken by the Union of South Africa in 1945, the problem would long ago have been settled on equitable terms. Unfortunately the record shows that the Republic of South Africa has consistently declined to entertain such a solution.
In the meantime, the Respondent State has chosen a more liberal position: that of exercising a Mandate without supervision on the basis of the assertion that supervision is merely a “procedural condition” and not essential to the Mandate regime. In my view this assertion is incorrect and even arbitrary, because it is contradicted by the substantive or institutional character assigned by the Covenant to the Council's right of supervision (Article 22, paragraphs 7, 8 and 9). I must underline what I have already said elsewhere: a Mandate without supervision is no longer a Mandate because such mutilation would signify the unilateral exercise of the Mandatory function, which at base greatly resembles disguised annexation. It is not possible to attribute such an intention to the authors of the Covenant or even less to those of the Charter. Apart from the need for supervision of the whole process of the exercise of the Mandate, it is essential that there should be some body which, if necessary, can act as impartial judge of whether the degree of development acquired by the Mandated population is such that there should be a declaration of independence; some body possessed of sufficient authority to request that the Mandatory cease its functions. It may be added that from the beginning this condition of supervision was accepted by the Mandatory, as it figured at the time of the foundation of the League of Nations in the Balfour draft Mandate presented to the Council of the League by the British Government representing the Union of South Africa.
(b) Another reason by which the Respondent supports its first preliminary objection is that the Mandate agreement did not take the form of a treaty as provided for in Article 18 of the Covenant of the League of Nations. The agreement is indeed simply contained in the Council's Declaration of 17 December 1920. But I have already explained earlier that the Mandate agreements are conventions sui generis, a chain of intentions expressed in successive acts in which the conditions originally proposed by the Powers, with the consent of the Mandatory, are finally defined by the Council of the League of Nations. There is no indication in Article 22 of the Covenant as to the instrumental form of the Mandate agreements, although a general practice existed, in view of the very special nature of the Mandates System, of including these agreements in “Declarations” of the same kind as that of 17 December 1920 for the Mandate for South West Africa. I have already said that in my view the official instrument in which the Council's “Declaration” is contained includes of itself an act of registration of the Mandate without any other form of registration being necessary. The Respondent does not deny having always regarded this declaration as the real Mandate convention. The pleadings in the first part of the proceedings confirm this consensus. Moreover, the form of publicity given to and registration of these “declarations” or “agreements” laid down in the final paragraph of the Mandate agreement for South West Africa (Annex B) and in other similar agreements, is somewhat different from but very similar to that provided for by Article 18 of the Covenant in the case of treaties. I am convinced that this divergence from the solemn forms provided for in Article 18 of the Covenant does not affect the validity of the Mandate agreements or conventions for the following reasons:
1. Because Article 18 refers to “treaty or international engagement” and the Mandate agreements, although included among such treaties or international engagements, have a special characteristic in that they are not covenants between States but between a State and an international organization.
2. Because the Mandate agreements are internal administrative instruments of the League of Nations.
3. Because the form of publication and registration of the Mandate agreements is entirely similar to that laid down by Article 18 of the Covenant in the case of treaties.
4. Because the exact meaning of Article 18 of the Covenant does not in my view extend to nullifying unregistered treaties ipso jure, but simply creates for one of the parties the right if it wishes of raising the objection of inadmissibility of the obligation to perform the treaty. Any other interpretation would tend to destroy the principle of good faith which governs, as a basic rule, the legal theory of conventional instruments and which has received explicit confirmation in international law in Article 2, paragraph 2, of the Charter of the United Nations. In the present case South Africa recognized and exercized the Mandate of 17 December 1920 for a number of years as a valid agreement or convention, and cannot by the principle of good faith be allowed to alter that course of conduct.
(c) The Agent for the Republic of South Africa, at the last public hearing, amended the first of the submissions read at the end of the oral arguments in a way which entirely alters the position taken up till then. The Respondent State has in fact always recognized the existence of the Mandate agreement constituted by the “Declaration” of 17 December 1920. It has moreover recognized that this agreement remained fully in force until the date of dissolution of the League of Nations, that is to say for more than 25 years (1920–1946), by admitting that after that date the Mandate, although in its view having lapsed as a convention, survives as a reality derived from the institution created by Article 22 of the Covenant. But at the last moment the Respondent asserts that there never was a true Mandate agreement because the “Declaration” of 17 December 1920 was only a unilateral document issued by the Council of the League of Nations and which, at the most, represents a preparatory outline of what was to have been the future Mandate agreement.
With the greatest moral and legal conviction I find that this submission is not well founded. In the first place, the Respondent has consistently regarded it as established in good faith that the Mandate agreement was identical with the Declaration. Secondly, I have shown in the foregoing pages that the contractual element of acceptance by the Mandatory is present in all the paragraphs of the preamble of that Declaration, where reference is made to the Government of the Union of South Africa having agreed to accept the exercise of the Mandate. Thirdly, the Declaration was forwarded to that Government and brought to its knowledge without it ever having raised in the Council any allegation or the slightest reservation with regard to the significance of the agreement. Fourthly, the Union of South Africa, now the Republic of South Africa, has exercized the Mandate for South West Africa for 42 years on the basis of the document of December 1920. Fifthly, during the early stages of these proceedings, the Republic of South Africa filed the Declaration as being the document constituting the agreement (Annex B to the Preliminary Objections).
In my view, therefore, this submission of the Respondent must be dismissed.
(d) As another ground for its first objection to the jurisdiction of the Court the Respondent contends that the compromissory clause inserted in Article 7 of the December 1920 Mandate agreement is a sort of bastard accretion, an anomaly introduced into the the document by the Council of the League of Nations. In doing so, it is argued, the Council exceeded its powers, since Article 22 of the Covenant did not include the compromissory clause among the conditions of the Mandate. Moreover, in respect of its external form, the compromissory clause in Article 7 of the Mandate does not constitute a true treaty within the meaning of Article 18 of the Covenant of the League of Nations.
I have already touched upon this subject in another section of this opinion.
While it is clear that recourse to the jurisdiction of the Permanent Court was not included in Article 22 of the Covenant as one of the original conditions of the Mandate agreements, it is also true that under paragraph 8 of Article 22 of the Covenant the Council of the League of Nations was empowered “to define” the conditions of administration and control of each Mandate. I have already set out the many reasons for which the Council had, as an act of good Mandate administration, to include the compromissory clause in the agreements with a number of Mandatory States for various territories. For their part the Mandatories, including the Republic of South Africa, far from refusing the insertion of this clause, accepted it explicitly or tacitly. Article 7 was never the subject of a denunciation by South Africa. On the contrary, South Africa expressly agreed with Great Britain concerning the compromissory clause when accepting the Mandate, according to the Balfour draft the text of which was the basis for the Council's Declaration of 17 December 1920.
Moreover, as I have already said, the compromissory clause is the legal means of providing a final settlement for disputes arising between the League of Nations or its Members and the Mandatory in the administrative or political field in connection with the exercise of the supervisory powers referred to in paragraph 9 of Article 22 of the Covenant and in Article 6 of the Mandate agreement. It must be noted that in international life sufficient powers are lacking in institutional or administrative procedures for a settlement of conflicts always to be possible by those means. In some cases it is necessary to have recourse to the authority of an impartial third Power which gives a final legal decision. The League of Nations as such had not the possibility of bringing contentious proceedings against a State, the concept of sovereignty forbidding such an approach. It was thus the States Members, possessed of the same legal interest as the League, which were endowed with that function by Article 7 of the Mandate.
If the compromissory clause could not be brought into operation at the request of “another Member”, the whole international Mandate system might fail because there would be no decisive legal means of settling deadlocks between the Mandatory and the League of Nations with regard to administrative supervision. An example of this is afforded by the present case, the normal operation of the Mandate for South West Africa having been upset and supervision paralyzed for many years, owing to the powerlessness or ineffectiveness of an administrative or political solution to put an end to the existing dispute.
As regards the form of the instrument, I have already explained that because of the special nature of the Mandate agreements the solemn form of an international treaty was not workable because what was involved was not a convention between two States, but one between the League of Nations and the Mandatory State for the purpose of the internal administration of the League. However, the final article of the Agreement of 17 December 1920 provided for the publicity to be given to and the registration of the convention, including the compromissory clause, by prescribing that the “Mandate Declaration”, an official document of the Council, should be deposited in the archives of the League of Nations and that certified copies should be sent to the Secretary-General and to all the signatoires of the Treaty of Versailles. This is much the same form of registration as is prescribed in Article 18 of the Covenant for international treaties. The necessary safeguards concerning the dissemination and authenticity of the agreements were provided for.
The compromissory clause contained in Article 7 of the Mandate instrument was not subject to the rules governing the optional clause laid down in Article 36 of the Statute of the Permanent Court of International Justice, since that Statute only came into force later. Indeed, the Statute, the Protocol of Signature of which is dated 16 December 1920, was signed only gradually during the following months by the States Members of the League of Nations. The Assembly's resolution of 13 December 1920, mentioned in the Protocol of Signature, provided that the Statute would come into force “as soon as this Protocol has been ratified by the majority of the Members of the League”. The Union of South Africa ratified it only on 4 August 19211. The ratifications provided for in the resolution of 13 December 1920 not having reached the required majority immediately, the Statute entered into force only on 1 September 19212, that is to say, more than eight months after the date of the Mandate for South West Africa containing the compromissory clause in Article 7. It was not until after 1 September 1921 that preparations were set on foot for the first election of judges3. Thus, at the date of the approval of the Mandate for South West Africa, Article 36 of the Statute had not yet acquired binding force and, subsequently, no formal defect could be imputed to the compromissory clause of the Mandate instrument.
But there are other very important aspects of the subject.
1. The Union of South Africa ratified, on 4 August 1921, the Protocol of 16 December 1920 which opened the Statute of the Permanent Court of International Justice for signature by States Members of the League of Nations4.
2. On 19 September 1929 the Union of South Africa subscribed for io years (susceptible of prolongation) to the optional clause in Article 36, paragraph 2, of the Statute of the Permanent Court, and ratified the declaration on 7 April 19301. This acceptance of the optional clause was renewed on 7 April 1940 “until such time as notice may be given to terminate the acceptance”2.
3. Under Article 93, paragraph 1, of the Charter of the United Nations, the States participating in the present controversy are, by reason of the fact that they are States Members of the Organization, also parties to the Statute of the International Court of Justice. Acceptance of the Statute in 1945 consequently involved acceptance of its Article 37 which provides for the transfer to the International Court of Justice of the jurisdiction of the Permanent Court in the cases covered by that Article. It may therefore be concluded that the Republic of South Africa has, since its acceptance of the Statute of the new Court, voluntarily accepted the replacement of the Permanent Court by the International Court of Justice in the concrete case provided for by Article 7 of the Mandate for South West Africa, which was for the Republic “a convention in force” within the meaning of Article 37 of the Statute. At no time, neither at the date of adherence to the Statute nor since that date, has the Republic of South Africa made any reservation or formulated any exception to exclude the case of Article 7 of the Mandate from its acceptance of Article 37 of the Statute of the International Court. It is therefore legitimate to conclude that its acceptance of Article 37 was simple, complete and unrestricted. The case of Article 7 of the Mandate is automatically included in the statutory provision of Article 37. Moreover, Article 35 of the Statute of the International Court provides that “the Court shall be open to the States parties to the present Statute”. Liberia, Ethiopia and the Republic of South Africa have, in their capactiy as such, the benefit of that provision.
4. On 12 September 1955 the Union of South Africa recognized the jurisdiction of the International Court of Justice, by accepting the optional clause in paragraph 2 of Article 36 of the Statute3. It seems to me to be beyond doubt that on the basis of that attitude the chronologically earlier provision of Article 7 in the Mandate for South West Africa was confirmed as being within the domain of the jurisdiction of the International Court of Justice.
There were then two voluntary acts by which the Republic of South Africa accepted the transfer of jurisdiction from the Permanent Court to the International Court: in the first place, the subscribing to Article 37 of the Statute; and secondly, adherence to the optional clause in 1955. These acts, undertaken at a time when the Mandate Agreement of 17 December 1920 was in force, reinforce, confirm and render irremovable Article 7 of that Agreement which contains the compromissory clause.
(e) There is another defect vitiating its validity which the Respondent attributes to the compromissory clause in Article 7 of the Mandate agreement, which is that that clause refers to “another Member of the League of Nations” as the definition of the parties with capacity to invoke the jurisdiction of the Court, notwithstanding the fact that the parties to the agreement are only the League of Nations and the Mandatory. In the Respondent's view, such “another Member” is a third legal person improperly invited to be a party to judicial questions deriving from the Mandates. Furthermore, there are not now any more Members of the League of Nations, which was dissolved sixteen years ago, therefore the compromissory clause cannot be implemented. It is no longer in force.
In fact, this observation relates to the subject-matter of the Second Preliminary Objection, and that is why I shall deal with it in my consideration of that Objection. I can say in advance that in my view the observation is not well founded.
∗ ∗ ∗
It follows from the foregoing that the Mandate Agreement for South West Africa is a convention in force, and that by virtue of the provision contained in Article 7 of that Agreement, Article 37 of the Statute of the International Court of Justice is applicable to the present controversy. In my view the First Preliminary Objection is not well founded.
Second Preliminary Objection
63 The Second Preliminary Objection is formulated by the Respondent more or less as follows: according to Article 7 of the Mandate Agreement, a dispute to be heard and determined by the Permanent Court of International Justice would be one arising between the Mandatory and “another Member of the League of Nations”. But in the present dispute there is no “Member” of the League involved, the League having ceased to exist in April 1946. The States which are Applicants, Liberia and Ethiopia, are ex-Members of the dissolved League and have not therefore preserved the active membership required by Article 7. The Applicants have therefore no “locus standi” to appear before the Court. Moreover, it is incomprehensible that the Council of the League of Nations should have brought in as a party to the Mandate Agreement “another Member of the League of Nations”, such a State being a third person without any direct legal interest in the implementation of the Mandate (Preliminary Objections, p. 149).
64 To judge whether this Objection is well founded or not, it is necessary once again to have regard to the nature of the international Mandate institution created by Article 22 of the Covenant of 1919. I refer in particular to the sections headed “The elements of the international Mandate” and “Characteristic features of the international Mandate”, paragraph 7 of the present Opinion.
65 In summary form, the doctrinal interpretation of the Mandates System instituted by the Covenant may be stated as follows: a “sacred trust” for the benefit of the under-developed peoples of the former colonies was entrusted to the Members of the League of Nations, which represented the international community. Each of those States Members is bound, jointly and severally with the League, by the obligation and by the responsibility to promote the purposes envisaged in Article 22 of the Covenant, namely, to assist, advance and protect the peoples concerned. In consequence, each State Member has an individual legal interest in seeing that the Mandates entrusted by the League of Nations to the various Mandatories are properly performed and fulfilled. In the Mandate agreements the States Members are thus not alien elements or “third persons” having no connection with the contractual relationship, but joint parties with the League of Nations for the achievement of its objectives.
66 This is the explanation of the participation of the States Members, alongside the League, in the compromissory clause of the Mandate agreements. Each of these States acquires a right of legal intervention to protect the interests of the mandated population; and this right—which is at the same time a responsibility—extends to the whole duration of the Mandate. From the entry into force of the agreement with the Mandatory, this right of intervention of other States Members becomes part of the legal heritage of each one of them, not for the duration of the League of Nations, but for the duration of the Mandate itself. Possession of this right by the States which acquired it thus extends beyond the life of the League of Nations, even if the League is dissolved before the expiry of the Mandate.
67 The Council of the League of Nations was therefore certainly not acting ultra vires when—in Article 7 of the Mandate—it granted to States Members of the League of Nations the right to participate in cases relating to the exercise of the Mandate. The whole of Article 22 of the Covenant, considered in the light of the historical background, previously referred to, and in particular its paragraphs 1 and 2, makes it possible to see the aim pursued by the authors to enable all the States Members of the international community incorporated in the League to participate in the “sacred trust of civilization” conceived and established for the well-being and development of peoples not yet able to stand by themselves. If paragraphs 7 and 8 of Article 22 confer upon the Council, representing the League of Nations, specific functions with regard to supervision of the Mandate, that does not deprive Member States of their legal interest in the performance of the conditions by means of which the Mandate is carried out. The Member States are, in this sense, inseparable collaborators in the action of the League.
68 All this leads to the conclusion that the reference to “another Member of the League of Nations” in Article 7 of the Mandate for South West Africa must be interpreted as referring to States which were Members of the League of Nations up to its dissolution. That membership gave them a power inherent in their status as States to act as parties in accordance with Article 7 of the Mandate during the whole of the time that the Mandate is exercized by the Mandatory. It is only in this way that the purposes of the institution can be served.
69 If this interpretation were not accepted, and since the League of Nations as such has been dissolved, the legally unacceptable conclusion would be reached that the mandated populations would not have had the possibility of recourse to international judicial authority in respect of possible abuses or deviations by the Mandatory. And it must be recalled that the right of defence before the law is expressly mentioned in the Declaration of Human Rights.
70 Since Liberia and Ethiopia were Members of the League of Nations up to its dissolution, those two States have, in my view, the right to invoke the jurisdiction of the Court in accordance with Article 7 of the Mandate for South West Africa and Article 37 of the Statute of the International Court of Justice.
71 In the opinion of the Respondent, “the disagreement between the Applicants and the Republic of South Africa is not a ‘dispute’ as envisaged in Article 7 of the Mandate”. In view of the provisions of that Article disputes capable of being referred to the Court must satisfy certain conditions, or be of certain kinds, which is not so in the present case. The Applications of the Applicants are therefore said to be inadmissible.
72 Pursuing its reasoning, the Respondent points out that according to the Memorials of the Applicants, the subject of the controversy is concerned with whether there was a violation of the obligations imposed on the Mandatory by Articles 2–6 of the Mandate for the benefit of the peoples of the Mandated Territory. But, in the submission of the Respondent, the action of the Applicants does not comply with the principle that a legal remedy is only available where a direct legal right or interest on the part of the Applicant is in issue. The defence of the peoples under tutelage is not within the individual competence of Member States since it is a function of the Council of the League of Nations as supervisory organ under the Mandate. The Court therefore cannot deal with an application such as those of Liberia and Ethiopia, where no direct rights and interests of the two States are involved. States Members of the League of Nations might no doubt have certain interests of their own with regard to Mandated territories, such as in the case of the economic principle of the “open door”, or the defence of their nationals against acts which constituted an abuse of the Mandate; but no direct legal interest can be attributed to the Applicants in respect of the defence of the rights or interests of third parties, in other words, the peoples of the Mandated territories. In this domain, the Applicants have no locus standi before the Court.
73 This contention of the Respondent has already been refuted by the argument based on the nature and purposes of the institution of Mandates. Since the Treaty of Versailles, Mandates have introduced a new principle into international law, one which reflects a need of the international conscience: that of legal tutelage for the well-being and development of former colonial peoples. The human, civic, cultural and economic rights of these peoples, and the prohibition of abuses which might be committed to their prejudice, are expressly laid down in Article 22 of the Covenant of the League of Nations which in its spirit is in harmony with the Preamble of that instrument. From that moment, the “sacred trust” conferred on the League and consequently on each and every one of its Members, was no longer a “moral” or “humanitarian” trust, but clearly one of an undeniably legal scope, laid down by international law. Since that time, Member States, as integral parts of the League itself, have possessed a direct legal interest in the protection of underdeveloped peoples. It is no doubt on the basis of these principles that the Mandate Agreement, in its Article 7, conferred upon Member States, in their individual capacity, the right to invoke the compromissory clause to require of the Mandatory a correct application of the Mandate. The Council of the League of Nations was authorized to include this right because it is one which flows naturally from the “sacred trust” instituted in the Covenant and because paragraph 8 of Article 22 of that instrument gives the Council the right to “define” the conditions of the Mandate. The provision in question is indeed very easy to understand since Articles 34 and 35 of the Statute of the Permanent Court did not make it possible for the League of Nations itself to have recourse, as a body, to the Court which was open only to Member States and States in general. All this reasoning is confirmed by the Preamble and by Articles 1 (paras. 2 and 3) and 2 (para. 5) of the Charter of the United Nations.
74 Looking at the matter from another aspect, the literal text of Article 7 of the Mandate provides, in my opinion, the best guide to a correct interpretation. According to its wording, the Mandatory agrees that (any) other Member of the League of Nations may submit to the Permanent Court any dispute whatever relating to the interpretation or the application of the provisions of the Mandate. This text contains no limitations as regards the kind of legal interest in issue, be it particular or general, whether it directly relates to the Applicant State or whether it is concerned with other persons legally close to the latter. In the present case, I have already explained that, in my opinion, one cannot describe—as the Respondent has done—the peoples of the Mandated territory as “third parties” not parties to the Mandate convention since these peoples are one of the parties under the convention, the benefitting party whose interests are, to a certain extent, joint interests with those of Member States, in view of the principles and purposes of the Mandate institution. That being so, nobody can rely on the wording of Article 7 to contend that it was intended to provide exclusively for recourse to the Court by States seeking the exercise of the Court's jurisdiction in defence of their direct private interests (for instance, the right to the open door or complaints of their nationals), and that the Article cannot cover applications by any State in defence of the general interests of the peoples of the Mandated territory. Regard must be had to the fact that the wording of Article 7 of the Mandate is broad, clear and precise: it gives rise to no ambiguity, it refers to no exception. It is therefore not possible to exclude from its content legal action concerned with what indeed constitute the principal problems of the Mandate, that is to say questions of interpretation with regard to the scope of the Mandatory's rights and the practical application of those rights to the peoples placed under tutelage. Having regard to the importance of these problems, a restrictive interpretation which would include only the material and individual interests of a State Member must take a secondary and indeed insignificant place.
75 As to the actual existence of a dispute in the present cases between the Applicants and the Mandatory, this has, in my opinion, been clearly established by the record and particularly by the official documents of the League of Nations and the United Nations which appear among the annexes. From these it can be seen that for several years the two Applicant States, in their capacity as members of certain organs and committees of the United Nations, have maintained points of view fundamentally opposed to those of the Mandatory with regard to the interpretation of various provisions of the Mandate and with regard to the application of the Mandate by the Mandatory in a series of concrete cases. A dispute could not have been more clearly established.
76 Since the members of delegations accredited to the United Nations are the official representatives of their respective governments, no doubt can remain as to the fact that these differences of opinion with regard to law and fact have arisen between the Governments of Liberia and Ethiopia on the one hand, and the Government of the Republic of South Africa on the other. It follows that the dispute submitted to the Court satisfies the conditions of substance and of form referred to in Article 7 of the Mandate agreement.
77 There remains a further objection to be answered: “It could not be said that the dispute—even if one should be admitted to exist—is one which has arisen between the Mandatory and two Other Members of the League of Nations' since, after the dissolution of the League, the Applicants lost their status as present Members and are merely two former Members of that Organization. They are consequently not within the framework provided for by Article 7.”
78 This objection has already been met in the consideration of the Second Preliminary Objection. Following the scheme of all conventions, in the Mandate agreements provision is made in such a way as to guarantee the functioning of the system during the whole period of its duration. The right to take legal action conferred, by Article 7, on other States Members, is inherent in the Mandate itself and inseparable from its exercise, so long as it lasts. The right is incorporated—I must repeat it—in the juridical heritage of Member States and there it remains latent and alive with no limits upon its duration until the expiry of the Mandate, in the absence of any conventional modification of the agreement.
79 When the text of Article 7 refers to the States enjoying the benefit of the compromissory clause, the reference to the status of States Members of the League of Nations must be interpreted as a means for the individual identification of those States and not as a permanent condition required for the role of applicant in legal proceedings. In other words, Article 7 means, in my opinion: “States belonging to the League of Nations and identified with the purposes of the League shall individually have the right to require before the Permanent Court the faithful execution of the Mandate during its entire duration.” But the intention of the Article was not to say that: “The States Members of the League, so long as it continues to exist, shall individually have the rights…”, etc. That latter interpretation would render ineffective the judicial security in the Mandate in the event of the disappearance of the League of Nations; and that cannot have been the intention of the authors of the agreement because the effect would be to prejudice the peoples under tutelage.
80 The interpretation which I prefer raises the question whether a State which has lost the status of a Member of the League of Nations, either by resigning or as the result of a disciplinary measure, would have the right to invoke Article 7 of the Mandate after the dissolution of the League in order to institute legal proceedings. In my opinion there can be no doubt that the answer must be in the negative; for the voluntary or disciplinary separation from a body or institution implies renunciation or loss of all those rights which the former State Member had individually acquired by virtue of its status as a Member.
81 This reasoning has given rise to an argument intended to destroy the possibility of applying Article 7. All the States Members of the League of Nations voluntarily agreed—it is said—to dissolve that body (Resolution of 18 April 1946). After that voluntary dissolution none of the former Members retained the right to invoke Article 7, for all of them renounced the rights and prerogatives which were the consequences of their status as Members. It is not possible, however, to ignore the historical facts which determined the disappearance of the League of Nations. That Organization—already greatly weakened before the Second World War—remained paralyzed for the whole period of the War and the results of the conflict completely upset international realities by profoundly modifying the former conformation and distribution of States on which the League of Nations had been based. In fact, the League was already dead, despite the wishes of its Members, when its Assembly adopted the Resolution of April 1946 to place its disappearance on record. At the same time its Members, in agreement with the majority of the other States of the international community, were greatly concerned that certain principles and certain institutions which were conspicuous by their social and humane progress and which had been put into effect by the League which had disappeared, should remain unaffected by the world crisis. It was then that they founded the United Nations, the regulations of which devoted special emphasis to the institution of trusteeship and provide means for transforming the former “Mandates” into modernised tutelary systems. Article 77 (paragraph 1, subparagraph (a)), 79 and 80 of the Charter established the compulsory character of that transformation where the Mandatory is a Member of the United Nations. The wording of Article 79 appears to me to be eloquent:
82 The philosophy of this provision is that the Mandatory State which accepted and signed the Charter of the United Nations accepted the new trusteeship system and must incorporate itself in it compulsorily.
83 The corollary is that the Republic of South Africa, a Member of the United Nations, which has not concluded a new trusteeship agreement with that Organization, is in the transitional situation provided for by Article 80, paragraph 1, of the Charter, which must be strictly applied; consequently, the former Mandate convention of 17 December 1920 must remain unchanged and its Article 7 must necessarily be applied. The “other States Members” of the former League of Nations are thus fully entitled to invoke the jurisdiction of the Court (Article 37 of the Statute).
84 In its Fourth and final Preliminary Objection—which is closely linked with the Third Objection—the Respondent asserts that the conflict or disagreement—the existence of which is alleged by the Applicants—is not a dispute which “cannot be settled by negotiation” in the sense of Article 7 of the Mandate.
85 In the development of its argument, the Respondent has contended:
(1) that there has been no exchange of views or direct discussion between the Parties through the diplomatic channel on the points which constitute the subject of the dispute;
(2) that account cannot be taken of administrative discussion or negotiation within the United Nations because these took place between the Organization itself and the Mandatory and not between the latter and the Applicant States individually;
(3) that the administrative negotiation in the various organs of the United Nations took place in circumstances not conducive to arriving at an agreement since the General Assembly conferred restricted powers on those organs, which constituted an element limiting the free exchange of views between the negotiators. On the other hand, the presence of plenipotentiaries in direct diplomatic negotiations would, in principle, allow of greater flexibility in seeking points of agreement in a wider field of discussion.
86 It is true that the record contains no reference to direct diplomatic negotiations between the Parties, that is to say, negotiations carried out in the traditional way of Ministries for Foreign Affairs and reciprocally accredited representatives. But the wording of Article 7 of the Mandate in no way indicates that negotiations must take any particular external form. Any negotiation is adequate if not in conflict with international custom.
87 A Member of the Court has wisely said that the field of diplomatic activity is now much wider than formerly, and that negotiations between Member States within the organs of the United Nations also undoubtedly constitute diplomatic negotiations. The delegations of States accredited to the Organization possess a diplomatic status and act as representatives of their respective governments. It might further be added that no better place could have been chosen in this case for negotiations than the United Nations since that Organization has the best specialists in the field and possesses in its archives all the necessary historical and legal information for the necessary documentation of the discussions.
88 In the present case, the voluminous documentation put in by the Parties and especially the annexes relating to the activities of the United Nations in this case constitute, in my opinion, overwhelming proof not only of the fact that repeated and reiterated negotiations took place, in which the Applicants and the Respondent participated, but also that all the efforts made to find a conciliatory solution resulted in failure. The problems of the Mandate for South West Africa were dealt with by the Fourth Committee, by the Ad Hoc Committee, by the Good Offices Committee, by the Committee on South West Africa and finally by the General Assembly. Each of the Applicants took part, on a number of occasions, in the discussion which took place with the Mandatory in these organs on the legal aspects of the exercise of the Mandate. Furthermore, the documents show that on a number of occasions it was pointed out to the Mandatory that it was necessary for it to amend its contentions or modify its activities in relation to the peoples under tutelage. For fifteen consecutive years this fundamental opposition of points of view, this unyielding opposition of the Mandatory in the face of the virtual unanimity of Member States as to the limits and obligations flowing from the Mandate, have maintained a situation of permanent deadlock. The votes of the Applicants, in their capacity as States, against the administrative policy of South Africa are to be found in the documents and minutes of these meetings. In short: the most categoric legal and moral conviction emerges from this examination to the effect that no negotiation is possible and that any further negotiation based on the rules of the Mandates System would be ineffective to settle the dispute.
89 The administrative or political course having been exhausted, the Applicants have had resort to the second course provided forby way of a wise reserve—by Article 7 of the Mandate: the course of resort to international justice. If the Mandate Agreement is carefully read, it is easy to see that Articles 6 and 7 relate to two different and successive aspects or stages in the exercise of the Mandate, which, far from being incompatible, are natural complements to each other. Mutual understanding between the League and the Mandatory is presumed as to the way in which the trust of the Mandate is to be performed (Articles 2–6), but in the event of a disagreement arising between the States Members which offers no prospect of settlement, resort to judicial decision will re-establish the harmonious functionning of the sytsem. There is nothing strange in the abandonment of administrative negotiations when the nature of the dispute makes the intervention of a tribunal preferable.
90 The Respondent has contended that the failure of the administrative negotiation carried out within the United Nations was caused by the restrictions placed upon the powers granted to the negotiating organs by the General Assembly. These organs—says the Respondent—did not enjoy the freedom of action necessary to decide upon the various formulae put forward in the debates by seeking approximations in a flexible way or by possibly agreeing to partial concessions. It seems to me, however, that this restriction of powers was inevitable and still more necessary. The General Assembly could only delegate its powers on the condition that it indicated as bases for negotiation the fundamental rules of the Mandate institution and of the Mandate Agreement for South West Africa. Anything beyond this compass would have been contrary to the spirit of the Charter and would have exceeded the powers of the Assembly. That was the very reason why the negotiations by the Good Offices Committee were not successful when the General Assembly rejected the partition formula which it had proposed.
92 For the reasons expressed above and also on the relevant grounds referred to in that part of the Advisory Opinion of 11 July 1950 which coincides with the reasoning which I have just set out, I come to the conclusion:
93 That the two Preliminary Objections (First and Second) raised by the Respondent to the jurisdiction of the Court are not wellfounded in law;
94 That the two other Objections (Third and Fourth) which relate to the admissibility of the Applications of Liberia and Ethiopia, must likewise be held to be ill-founded;
Separate Opinion of Judge Jessup
1 I agree with the decision of the Court that it has jurisdiction to hear the present cases on the merits and that the four preliminary objections are not well founded and should be dismissed. Since, however, the Opinion of the Court does not embrace all the questions of fact and of law which I find essential to reaching the decision, I find it my duty to deliver this separate Opinion.
2 The nature of the international obligations assumed by a Mandatory in accepting a Mandate, and specifically, the nature of those obligations assumed by the Respondent in accepting the Mandate for South West Africa, is a focal point in the decision of the jurisdictional issues in these cases. In my view, it is not possible to understand the nature of those obligations without a thorough appreciation of the principal facts prefacing and attending the finalization of the Mandate. These facts, as now available in published official records, have hitherto not been adequately presented. Accordingly, without repeating much that is familiar in the history of the Mandates, I shall summarize and comment on those facts which seem to me to be essential to an analysis of the obligations of the Mandatory for South West Africa.
3 On 7 May 1919, at a meeting of the Council of Four (President Wilson, Mr. Lloyd George, M. Clemenceau and Sr. Orlando), Mr. Lloyd George submitted a proposal for the allocation of the Mandates, including the allocation of the Mandate for South West Africa to Great Britain acting on behalf of the Union of South Africa. At the afternoon meeting on the same day, a “decision” was taken approving these proposals and the decision was published.
4 On 27 June the Council of Four, with Japan also represented, had before it “forms” of the Mandates which had been prepared by Lord Milner and submitted by Mr. Lloyd George. The details were not discussed and after some general observations the Council decided to set up a Commission under Lord Milner to prepare drafts of the Mandates.
5 On the following day the Milner Commission met in Paris and Lord Milner submitted a draft to serve as a pattern for the C Mandates. This draft contained no provision for reference to the Permanent Court of International Justice.
6 On 5 July a joint British-French draft to serve as a pattern for B Mandates was laid before the Milner Commission. This draft also contained no provision for reference to the International Court.
7 On 8 July the British-French draft was taken as a basis for discussion but the United States representative submitted an alternative draft for B Mandates. This draft contained two paragraphs concerning references to the Permanent Court of International Justice. These provisions read as follows (translation):
If a dispute should arise between the Members of the League of Nations relating to the interpretation or the application of the present Convention and if this dispute cannot be settled by negotiation, it will be referred to the Permanent Court of International Justice which is to be established by the League of Nations.
The subjects or citizens of States Members of the League of Nations may likewise bring claims concerning infractions of the rights conferred on them by Articles 5, 6, 7, 7a and 7b of this Mandate before the said Court for decision. The judgment rendered by this Court will be without appeal in both the preceding cases and will have the same effect as an arbitral decision rendered according to Article 13 of the Covenant.”
8 It will be noted that the italicized words in the first paragraph indicate that either the Mandatory or another Member of the League, could invoke the jurisdiction of the Court. This provision was subsequently altered.
9 The representative of France and Lord Milner both said that they had no objection to the principle of recourse to the international Court but they both objected to the provision in the second paragraph which would allow individuals to invoke the jurisdiction of the Court. The representative of the United States then agreed to a modification suggested by Lord Robert Cecil by which the second paragraph would read as follows:
“The Members of the League of Nations may likewise, on behalf of their subjects or citizens, bring claims for infractions of their rights…”
It was also agreed to delete the references to the specific Articles in this same second paragraph. These amendments were agreed to in the meeting of 9 July.
10 On the following day, 10 July, a draft to serve as a pattern for C Mandates was approved with a paragraph concerning reference to the Court which was identical with the first paragraph of the United States draft which has just been discussed. At the same meeting the Commission also approved a draft to serve as a pattern for B Mandates and this draft contained the two paragraphs as proposed by the United States but with the amendments which have been indicated.
11 On 15 July Lord Milner sent these drafts for B and C Mandates to the Secretary-General of the Peace Conference in Paris and on 5 August he and Colonel House announced at a session of the Commission in London that President Wilson and Mr. Lloyd George had approved both drafts. In the Commission, the French representative then made a reservation concerning the recruitment of troops in B Mandates and the Japanese representative made a reservation concerning the Open Door in C Mandates. The Commission decided to send the drafts formally to the Council of the Principal Allied and Associated Powers in Paris. The Commission on Mandates did not meet again after this date but the texts of the drafts for B and C Mandates which they had approved were sent to the legal experts of the Drafting Committee of the Peace Conference, who, without discussing the substance of the drafts, put them into the form of formal conventions.
12 On 24 December 1919, the Council of Heads of Delegations in Paris considered the “drafts of Conventions relative to Mandates” including one concerning the allocation to the British Empire (Union of South Africa) for German South West Africa.
13 It was explained to the Council that these drafts were the texts adopted by the Commission in London which had been put into treaty form by the legal experts of the Drafting Committee. In the draft Convention for South West Africa one finds in the listing of the High Contracting Parties that His Majesty the King of the United Kingdom, etc., is listed twice, the second time “for and on behalf of His Union of South Africa”. Article 8 of this draft Convention reads as follows:
“The consent of the Council of the League of Nations is required for any modification of the terms of this Mandate. If any dispute whatever should arise between the Members of the League of Nations relating to the interpretation or the application of those provisions which cannot be settled by negotiation, this dispute shall be submitted to the Permanent Court of International Justice to be established by the League of Nations.”
14 In this draft Convention, the provisions which later appear in the Preamble of the Mandate were stated somewhat differently. The first paragraph of the Preamble of the draft Convention contains a provision identical—except for a few stylistic differences—with the first paragraph of the final text of the Preamble. Paragraph 2 is a little different but refers to Article 22 of the Covenant and the desire of the Principal Allied and Associated Powers to confer a Mandate upon His Britannic Majesty “to be exercised on His behalf by the Government of the Union of South Africa”, and then recites that they have decided to conclude a Convention. Article 1 of the draft Convention then says the Powers “confer” the Mandate and says that the Mandate will be exercised by the Union of South Africa in conformity with Article 22 of the Covenant. By Article 2, His Britannic Majesty accepts the Mandate “and will execute the same on behalf of the League of Nations, and in accordance with the following provisions”. This is the basis for paragraph 3 of the Preamble of the final text.
15 At the end of the draft Convention is a sentence:
16 At this time the United States Commission to the Peace Conference had already returned to the United States but the United States was represented in the Council of Heads of Delegations. With reference to the drafts of the “C” Mandates, it was decided that discussion would be resumed after the Japanese delegate had received instructions from his government concerning the “Open Door” reservation. Japan did not disagree with the provision for recourse to the Court.
17 The foregoing events all took place before the Treaty of Versailles, of which the Covenant of the League of Nations was a part, entered into force on 10 January 1920. On that date, the Mandate for South West Africa had not been perfected. The allocation of the Mandate to the Union of South Africa (represented by Great Britain) had been agreed. Final agreement on the terms of the Mandate awaited the final approval of Japan, but they had been drawn up with Article 22 of the Covenant in mind. The Mandatory was party to these agreements. The draft Convention contemplated confirmation by the Council of the League of Nations as the final link and it is with the Council of the League that the final stages of perfecting the Mandate are connected.
18 At this point the Mandatory was bound by an international obligation to France, Great Britain, Italy and Japan, to accept the Mandate for South West Africa, to exercise it according to the agreed terms, and to submit to the jurisdiction of the Permanent Court disputes with other Members of the League concerning the interpretation or application of the Mandate. This agreement was subject to two conditions subsequent: (1) approval by Japan; (2) confirmation by the Council of the League. Both of these conditions were subsequently fulfilled and the international agreement, with certain agreed amendments, was then perfected.
19 The Council of the League of Nations on 5 August 1920 adopted the report prepared by M. Hymans of Belgium on “The Obligations of the League of Nations under Article 22 of the Covenant (Mandates)”. This report was designed in part to clarify the respective roles of the Council and the Assembly of the League in regard to Mandates, but it constitutes the basic document concerning the respective roles of the Council of the League on the one hand and the Principal Allied Powers on the other. It will be recalled that France, Great Britain, Japan and Belgium, namely the four States which accepted Mandates—Great Britain acting in several capacities—were at this time Members of the Council of the League. In adopting the Hymans Report, the Council of the League approved. inter alia, the following conclusions:
1. There was no disagreement that the right to allocate the Mandates belonged to the Principal Allied and Associated Powers in whose favour Germany had renounced its rights in its overseas possessions.
2. Although the Mandatory was thus appointed by the Principal Powers it was to govern in the name of the League. “It logically follows that the legal title held by the Mandatory Power must be a double one: one conferred by the Principal Powers and the other conferred by the League of Nations.”
3. On the question “By whom shall the terms of the Mandates be determined?” the report said:
“It has not been sufficiently noted that the question is only partially solved by paragraph 8 of Article 22, according to which the degree of authority, control or administration to be exercised by the Mandatory, if not defined by a previous convention, shall be explicitly defined by the Council.”
The report continued that most Mandates would contain many provisions other than those relating to the degree of authority. It said that the B and C Mandates must be submitted “for the approval of the Council”. In the light of paragraph 6 of Article 22 of the Covenant, it concluded that “it is not indispensable that C Mandates should contain any stipulation whatever regarding the degree of authority or administration”.
4. The report discussed the meaning of “Members of the League” as used in paragraph 8 of Article 22. It concluded that this term could not be taken literally because if it were it would mean that the Assembly of the League would have to determine the terms of the Mandates since only the Assembly brought all the Members together; if the drafters had meant to refer to the Assembly, they “would have mentioned it by name, rather than used an obscure periphrasis”. The report concluded that when the Article was drafted it was supposed that conventions dealing with Mandates would be included in the Peace Treaty and that only the Allied and Associated Powers would be original Members of the League. The term “Members of the League” in paragraph 8 of Article 22 was thus intended to refer to all the signatories, except Germany, of the Treaty of Versailles. Practically, the report recommended that the Council ask the Powers to inform the Council of the terms they proposed for the Mandates.
On 26 October the Council adopted a second report by M. Hymans on the question of Mandates.
This Report stated:
“With regard to Mandates B and C, it appears that the Principal Powers are in agreement on many points, but that there are differences of opinion as to the interpretation of certain of the provisions of Article 22, and that the negotiations have not yet been concluded.
Beyond doubt, it is in every way desirable that the Principal Powers should be able to arrive at a complete understanding and to submit agreements to the League. Failing this very desirable agreement however, the Covenant provides for the intervention of the Council with a view to determining the degree of authority, of control or of administration to be exercised by the Mandatories.”
… “We sincerely hope therefore that before the end of the Assembly the Principal Powers will have succeeded in settling by common agreement the terms of the Mandates which they wish to submit to the Council.” (Italics supplied.)
20 The difference of opinion to which the Report referred, in the case of the C Mandates, was the Japanese reservation on the Open Door.
21 There is further evidence of the contemporary understanding of the respective roles of the Principal Powers and of the League Council in establishing the Mandates. The Prime Minister of Great Britain said in the House of Commons on 26 July 1920 (when asked “Do the Great Powers submit Mandates to the League of Nations? Is submission the real attitude?”): “The Great Powers are on the League of Nations, and they are only submitting to themselves.” Again, on 8 November 1920 when asked whether “the right to determine the terms of the Mandate reposes in the Members of the League”, the Prime Minister answered in the negative and later stated: “The Great Powers are represented, of course, on the Council of the League, and these Mandates have to be submitted to the Council of the League. It will require the unanimous consent of the Council of the League to reject them ……… Nothing can be done except by a unanimous decision of the Council. That means that nothing can be done without the consent of the Powers concerned.” The question was then put: “Is it not definitely laid down by the Treaty of Versailles that the degree of authority and control to be exercised by any Mandatory in a mandatory area is a matter for the League of Nations, Council or Assembly, to decide?” The Prime Minister replied: “Yes, subject to the conditions which I have already indicated.” (Italics supplied.)
22 At the private session of the Council on 4 August 1920, M. Bourgeois (France) pointed out that:
“the Principal Allied and Associated Powers, at the moment when the Covenant was drafted, had, in using the phrase ‘Members of the League’, in effect intended to refer to themselves.”
23 In a discussion on the Mandate drafts in the Council of the League on 10 December 1920, the Representative of Italy said that, strictly speaking, by the terms of Article 22 (8) of the Covenant, no drafts of A Mandates had been brought to the notice of the Council since they had not yet been communicated to Italy “and, consequently, there was, as yet, no agreement in regard to the matter between the Principal Allied Powers”. He referred to the “necessity of an agreement between the Principal Allied Powers, as provided for by Article 22”. (Italics supplied.)
24 On 10 December 1920 the Council of the League “declared afresh that it was its duty to see that the rules laid down in Article 22 were carried out and especially that it was competent to approve the terms of the Mandates and, in the last resort, if need be, to draw up the terms”.
25 These salient facts, against the familiar background of the origins of the Mandate System, lead to the following conclusions:
1. The decision of the Council of Four on 7 May, 1919, allocating the Mandate for South West Africa to the Union of South Africa, constituted the first link in what may be called the chain of title. This “decision” was an international agreement between France, Great Britain, Italy, the United States and the Union of South Africa (represented by Great Britain) which had dispositive effect. Japan subsequently concurred in or adhered to this agreement.
2. Since the allocation of a Mandate was not equivalent to a cession of territory and did not transfer sovereignty to the Mandatory, it remained to determine what would be the rights and duties of the Mandatory in its capacity as such. Article 22 of the Covenant, by which all the States concerned were soon to be bound, indicated the general nature of these rights and duties.
3. By 24 December 1919 agreement had been reached among France, Great Britain, Italy and Japan, on the one hand, and the Union of South Africa represented by Great Britain, on the other hand, on the terms of the Mandate, except for one unsettled reservation of Japan. The agreed terms which were unaffected by the Japanese reservation included a provision for the compulsory jurisdiction of the Permanent Court of International Justice.
4. By December 1920 it had become clear that the United States had disassociated itself from the Peace Treaty settlements and from the League of Nations, which fact altered the form, but not the fact of agreement on the terms of the Mandate for South West Africa.
26 This was the situation when on 14 December 1920, Mr. Balfour handed in to the Council of the League, drafts of the C Mandates. Among them, the draft entitled
was no longer cast in the form of a formal convention such as had been discussed by the Council of Heads of Delegations at Paris, but in the form of a resolution of the Council of the League of Nations. This draft began with a preamble of three paragraphs substantially identical with the first three paraggraphs of the Mandate as ultimately in force. These three paragraphs are then followed by one line which reads:
“MANDATE FOR GERMAN SOUTH WEST AFRICA
Submitted for Approval”
“Hereby [the Council] approves the terms of the Mandate as follows:”
27 The text of Article 7 of this draft is:
“The consent of the Council of the League of Nations is required for any modification of the terms of the present mandate, provided that in the case of any modification proposed by the Mandatory such consent may be given by a majority.
If any dispute whatever should arise between the Members of the League of Nations relating to the interpretation or the application of these provisions which cannot be settled by negotiation, this dispute shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations.”
28 The Council immediately referred this draft to the Secretariat to be studied by the experts. As appears from subsequent reports by Viscount Ishii, the Secretariat was concerned to make sure that the proposed terms conformed to Article 22 of the Covenant and that the role of the Council of the League should be appropriately recognized. As stated by Viscount Ishii, what is now the fourth paragraph of the preamble was inserted
“to define clearly the relations which, under the terms of the Covenant, should exist between the League of Nations and the Council on the one hand, and the Mandatory Power on the other”.
29 Along the same lines, the one line following the preamble in the Balfour draft was replaced by the phrase which appears in the final text, namely:
“Confirming the said Mandate, defines its terms as follows:”
30 The fourth paragraph of the preamble, as inserted by the League Secretariat, is capable of misconstruction. The English text, as it appears in the final version of the Mandate, reads as follows:
“Whereas, by the aforementioned Article 22, paragraph 8, it is provided that the degree of authority, control or administration to be exercised by the Mandatory not having been previously agreed upon by the Members of the League, shall be explicitly defined by the Council of the League of Nations:”
It will be seen that this text slightly paraphrases the text of paragraph 8 of Article 22 of the Covenant. On the other hand, the French text follows the text of paragraph 8 of Article 22 more closely and, in doing so, brings out more clearly the condition subject to which the Council was authorized to act.
The French text reads as follows:
“Considérant que, aux termes de l'Article 22 ci-dessus mentionné, paragraphe 8, il est prévu que si le degré d'autorité, de contrôle ou d'administration aexercer par le Mandataire n'a pas fait l'objet d'une Convention antérieure entre les Membres de la Société, il sera expressément statué sur ces points par le Conseil:”
Moreover, in the English text of the Ishii report, the phrase “not having been previously agreed upon by Members of the League” is set off by commas, thus affording a construction which, in English, may also be conditional. The use of the comma after the word “Mandatory” is to be found in the Mandates for Syria, Lebanon, Palestine, Belgian East Africa, British East Africa, and the Pacific Islands north of the Equator, but it has dropped out in the texts of the Mandates for the Pacific Islands south of the Equator, for Samoa and for Nauru and for South West Africa.
31 If the fourth paragraph of the Preamble is read as an assertion that the Members of the League had not previously agreed upon the terms of the Mandate, given the interpretation which the Council and its Members were currently giving to the expression “Members of the League”, the assertion would be not only contrary to the historical facts but to the recital of those facts in paragraphs two and three of the Preamble. Moreover, it is perfectly clear from the record that it was the Principal Powers and not the Council which “explicitly defined” the terms of the Mandate, including those terms which alone the Council, under stated conditions, was authorized by paragraph 8 of Article 22 to define.
32 This whole fourth paragraph of the Preamble is omitted entirely from the four Mandates for Togo and the Cameroons which had a different development. At the meeting of the Council of Four on 7 May 1919, when the decision was taken to allocate the Mandates, it was agreed that the British and French Governments would make a joint recommendation to the League as to the future of the former colonies of Togo and the Cameroons; at this point there was no decision to place these territories under Mandate. But the Joint Recommendation of the two Governments to the League on 17 December 1920 proposed a division of the two colonies between France and Great Britain and, in accordance with the spirit of Article 22, that they be placed under Mandates. The two Governments accordingly sent to the Council four draft Mandates which are similar to the other B Mandates. The Joint Recommendation says that the two Governments “venture to hope that when the Council has taken note of them it will consider that the drafts have been prepared in conformity with the principles laid down in the said Article 22, and will approve them accordingly”.
33 Appended to the drafts were signed agreements on the delimitation of the frontiers; the fact that these agreements were signed and that there was no explicit signed statement saying “The undersigned agree to the terms of the Mandates which we are jointly recommending”, is of no juridical consequence. When the Council of the League approved these four drafts on 1 August 1922, it did not insert the new fourth paragraph of the Preamble although it did insert the final one-line phrase. If it had been the understanding that under Article 22 of the Covenant the Council actually had to define all the terms of the Mandates in the absence of prior agreement by all the Members of the League, and if the fourth paragraph of the Preamble as it appears, inter alia, in the Mandate for South West Africa, is to be so understood, it would be impossible to explain why these four Mandates were subject to a different rule. The second paragraph of the Preamble of these four Mandates recites, that the Principal Allied and Associated Powers had “agreed” that France and Great Britain should make a joint recommendation concerning these former colonies and this was evidently treated as an agreement of the Powers in advance to accept whatever recommendation the two governments might make. This conclusion is borne out by the Treaties of 13 February 1923 between the United States and France concerning the rights of the former in French Cameroons and Togo; they refer to the agreement of the four Powers upon these Mandates, just as the Treaty of 11 February 1922 between the United States and Japan concerning rights in the islands under Japanese Mandate recites the prior agreement of the same four Powers on the allocation of the Mandate and on its terms.
34 So in dealing with A Mandates, the Council, at its Thirteenth Meeting on 24 July 1922 approved a frank declaration which says:
“In view of the declarations which have just been made, and of the agreement reached by all the Members of the Council, the articles of the Mandates for Palestine and Syria are approved.”
35 The amendments made in Article 7 of the Balfour draft of the C Mandates are significant. As Viscount Ishii explained, the first paragraph of Article 7 was amended so as to eliminate the idea of a majority vote since the Council had in other connections decided that it should always act by unanimity.
36 The second paragraph of Article 7 was recast in what became its final form so that its opening phrases read:
“The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations…”
On the other hand, the text in the Balfour draft said: “If any dispute whatever should arise between the Members of the League of Nations………”, which was the language of the text approved in the Milner Commission in July, 1919.
37 Viscount Ishii explained that this change was inspired by the thought that the Members of the League, other than the Mandatory “could not be forced against their will to submit their difficulties to the Permanent Court”.
38 The various amendments thus suggested by the League Secretariat were accepted by the Council. The representative of Japan made a declaration that Japan had no objection to the C Mandates and the Council accordingly approved them. In so far as the Mandate for South West Africa is concerned, this approval is registered in the familiar resolution of 17 December 1920. This may be called the second link in the chain of title.
39 It may be remarked that this resolution was adopted by the Council on the day following that on which the Protocol of Signature of the Statute of the Permanent Court of International Justice was opened for signature and was then signed, inter alia, on behalf of all of the governments which subsequently became Mandatories, although the signature for the Union of South Africa was under reserve of the approval of the Government of that country.
40 It is apparent that the Council of the League did not “define” the terms of the Mandate in the sense of originating a definition or specification thereof; it “defined” them only in the sense of making them “definite” through the Council's stamp of approval on the drafts which had been agreed upon by the Principal Powers.
41 The actual course of events was correctly summarized on 21 February 1927 by the Secretary of State for the Colonies, responding to a question in the House of Commons:
“Under Article 119 of the Treaty of Versailles the former German territories in Africa were surrendered to the Principal Allied and Associated Powers who, in accordance with Article 22 of the Treaty agreed that the Mandates to administer these territories should be conferred upon the Government concerned; and proposed the terms in which the Mandates should be formulated. Having arranged the allocation and delimitation of these territories as between themselves, the Governments concerned agreed to accept their respective Mandates and to exercise them on behalf of the League of Nations on the proposed terms, and the Mandates were then confirmed by the Council of the League………” (Italics supplied.)
42 The Council, as is apparent from the fourth paragraph of the Preamble of its resolution of 17 December 1920, purported to take its action under the authority of paragraph 8 of Article 22 of the Covenant. But Article 7 of the Mandate, with its compromissory clause, was outside the scope of paragraph 8 which relates only to the “degree of authority, control, or administration to be exercised by the Mandatory”. Indeed Article 22 of the Covenant contains no reference to the Permanent Court. Article 7 at least-whatever one may say of the other Articles-stems from the agreement of the Principal Powers and the Mandatory and the resolution of the Council of the League of 17 December 1920 records the agreement.
43 The Mandate, as an international institution of the type contemplated in Article 22 of the Covenant, was a novelty in international law and it is not surprising that the agreements which were framed to give life to the institution present complex aspects. It is the task of the Court, not to construct some ideal legal pattern which might have been followed, but to appreciate the facts. Ex factis ius oritur. It is not irrelevant to recall that legal difficulties were encountered also in the establishment of the Trusteeship System, which, under Chapter XII of the Charter of the United Nations, was designed to supersede the Mandates System under the League of Nations. Just as the text of Article 22 of the Covenant seemed on its face to envisage an agreement by all Members of the League, so Article 79 of the Charter provides that “The terms of trusteeship for each territory … shall be agreed upon by the States directly concerned …” The fact that it was impossible to reach agreement on the identification of “States directly concerned” is part of a familiar story. The General Assembly accordingly approved by resolution the terms of trusteeships without there having been strict compliance with this requirement of Article 79 of the Charter. The reality of the existence of “trusteeship agreements”, however, can scarcely be questioned.
44 In the light of this record, it is possible to describe the multifarious international obligations assumed by the Respondent as Mandatory for South West Africa.
1. The Mandatory had obligations under the Covenant of the League of Nations. As a Member of the League, the Mandatory, as soon as it accepted a Mandate, became bound by those provisions of Article 22 of the Covenant which specify or indicate the nature of a Mandatory's obligation. Paragraph 7 of Article 22, for example, imposed the specific obligation to render an annual report; it is possible to consider Article 6 of the Council's resolution of December 17, 1920, as merely giving specificity to this obligation. Paragraphs 1 and 2 of Article 22, supplemented by the general obligations under Article 23, indicate the general nature of the obligations flowing from the “sacred trust”, and again it is possible to consider Articles 2 through 5 of the resolution of 17 December 1920 as filling in the precise details of these obligations. But in both these instances, the “details” were subjects of further agreement outside the Covenant.
The obligations owed by a Mandatory under Article 22 of the Covenant, like those obligations owed by all Members of the League under such Articles as 10 and 16 of the Covenant, were owed to the co-contractors, that is to all other Members of the League. I do not find it necessary to consider at this point whether these particular obligations, under the Covenant, were owed also to the collectivity, that is to the League of Nations itself. I shall discuss later the position of the inhabitants of the Mandated territory.
2. The Mandatory had obligations under the agreements which it made with the Principal Powers, namely, France, Great Britain, Italy and Japan. These agreements are recorded in the resolution of the Council of the League of 17 December 1920.
The first agreement recorded in the second paragraph of the Preamble of the resolution must be recalled, although the Mandatory may not be considered an original party to it. It reads:
“Whereas the Principal Allied and Associated Powers agreed that, in accordance with Article 22, Part I (Covenant of the League of Nations) of the said Treaty, a Mandate should be conferred upon His Britannic Majesty to be exercised on his behalf by the Government of the Union of South Africa to administer the territory aforementioned…”
This agreement was the decision of the Council of Four of 7 May 1919. The Preamble is here accurate in referring to the “Principal Allied and Associated Powers” since the United States, through President Wilson, participated in making this basic agreement. But, as the United States subsequently pointed out, it was incorrect to use this term in regard to further agreements in which the United States did not officially participate. I shall hereafter refer to the “Principal Powers” as including France, Great Britain, Italy and Japan. The Union of South Africa became a party to this agreement by the acceptance to be noted in a moment.
The second agreement recorded in the same paragraph is recorded in these words:
“… and have proposed that the Mandate should be formulated in the following terms;”
Subject to the correction just noted concerning the United States which was the “Associated” Power, this means that the Principal Powers had “proposed” the “following terms” for the Mandate. Obviously four Powers could not make a proposal jointly without having agreed upon it, and we know from the historical record that they had agreed. Again, it may be said that the Union of South Africa became a party to this agreement by the acceptance which can now be noted.
The third agreement is recorded in the third paragraph of the Preamble of the resolution of 17 December 1920, as follows:
“Whereas 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 in accordance with the following provisions;”
This is really a double agreement since it first records the acceptance by the Mandatory of the Mandate as allocated in the first agreement of the Principal Allied and Associated Powers, and then records the acceptance of the second agreement of the Principal Powers by which the terms of the Mandate were formulated. It is clear that the words “following provisions” in this paragraph of the Preamble are identical in meaning with the words “following terms” in the preceding paragraph. As already stated, these two acceptances may be considered as equivalent to accessions by the Union of South Africa to two agreements of the Principal Powers, that is to the agreement to allocate to the Union (through His Britannic Majesty) the Mandate for South West Africa, and to the agreement upon the terms according to which the Mandate was to be exercised.
45 It may be noted that the term “acceptance”, in accordance with familiar modern practice, is used here in the sense in which the term is explained along with “accession”, “approval” and other terms in the 1962 Report of the United Nations International Law Commission; according to Article 1 (d) of the Draft Articles on the Law of Treaties, these terms “mean in each case the act so named whereby a State establishes on the international plane its consent to be bound by a treaty”. The use of the term “treaty” is considered hereinafter.
46 It has already been explained how the Council of the League proceeded by its resolution of 17 December 1920 to confirm and to make definite the terms of the Mandate which had already been agreed upon by the Mandatory and the Principal Powers. The various textual amendments included in the Council resolution being approved by the Council, acting by unanimity, were thereby approved by Great Britain speaking in its double capacity. It could be said, therefore, that the fourth agreement is the entire body of the Council's resolution and it is in this sense that the resolution has generally been treated as being “the Mandate”, which has usually been considered—as it was considered by all parties to these cases—to be a treaty to which the Mandatory was a party. This point will be dealt with later.
47 But the amended text which was adopted for the second paragraph of Article 7 of the resolution is cast in such a form that it is justifiable to deal with it separately, perhaps as a fifth agreement. The paragraphs reads:
“The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations.”
48 In contrast to the paragraphs of the Preamble which used the past tense to refer to agreements already concluded, this second paragraph of Article 7 is cast in the present tense. Its general form is in the style of declarations to be made under Article 36 (2) of the Statute of the Permanent Court of International Justice, by which States agree to accept the compulsory jurisdiction of the Court; the provision for reciprocity, while usual, is neither obligatory nor universal. But it is also similar to a compromissory clause of the type frequently found in multilateral conventions.
49 The change in the compromissory clause of Article 7, which was agreed to by the Powers and the Mandatory, did not modify the obligation of the Mandatory to submit to the jurisdiction of the Court, an obligation to which the Mandatory had agreed throughout the drafting stages from the mid-summer of 1919, and which was included in the third and fifth agreements recorded in the Council's resolution of 17 December 1920. The change in this clause merely altered the legal situation relative to obligations of other Members of the League, on whom (as it was thought) the earlier drafts would have imposed an obligation to submit to the jurisdiction of the Court without their even having an opportunity to accept or refuse.
∗ ∗ ∗
50 The word “mandate” has been used in many different senses—to indicate an institution, an instrument, a treaty or agreement, a grant of authority and a territory. In whatever way one identifies the “mandate”, it can scarcely be doubted that in accepting the mandate, the Mandatory incurred international obligations of a legal character and that it voluntarily agreed to incur those obligations; the obligations were certainly not imposed upon the Mandatory, which, under Article 22 (2) of the Covenant, was a State “willing to accept” them. This being the case, the next point to consider is whether the agreement to incur these international obligations of a legal character is to be characterized as a “treaty or convention”. The term “treaty or convention” is used in Articles 36 and 37 of the Statute, but since in recent times there has been no justification for distinguishing in law between a treaty and a convention, only the term “treaty” need be used here for purposes of analysis.
51 Here again semantic difficulties are encountered, since, as a Rapporteur of the International Law Commission has pointed out, in all discussions in the law of treaties there is apt to be confusion between the instrument in which an agreement is embodied and the agreement itself. As far back as 1925, a sub-committee of the League of Nations Committee on the Codification of International Law, referred to “the prevailing anarchy as regards terminology” in the law of treaties. The notion that there is a clear and ordinary meaning of the word “treaty” is a mirage. The fundamental question is whether a State has given a promise or undertaking from which flow international legal rights and duties. This point of view has been generally accepted in modern codifications of the law of treaties, such as those of the United Nations International Law Commission, the Harvard Research in International Law and the American Law Institute.
52 In view of what the International Law Commission in its 1962 Report calls the “extraordinarily rich and varied nomenclature”, it is common ground that the label attached to a treaty is of no legal significance and that the legal consequences of informal agreements expressed in a variety of forms may be identical with those resulting from the most formal instruments. (Cf. Lissitzyn, “Efforts to Codify or Restate the Law of Treaties”, 62 Columbia Law Review 1166 (1962).) In preparing draft codes on the law of treaties, rapporteurs have at times pointed out that the draft has for convenience, been limited to apply, for example, only to treaties embodied in written instruments. But the 1962 Report of the International Law Commission, like that of 1959, emphasizes that the fact that the articles do not apply to international agreements not in written form “is not to deny the legal force of oral agreements under international law”. The 1959 Report explained: “There may be an international agreement, but there may be no instrument embodying it—i.e., it is an oral agreement, made for example, between heads of States or Governments…” (1959 Yearbook of the International Law Commission, Vol. II, p. 94.)
53 The recent (1962) draft of the American Law Institute uses the expression “international agreement” in place of “treaty” and defines it as “an agreement between states or international organizations by which there is manifested an intention to create, change or define relationships under international law”. The comment says “there is no rule of international law which prevents an oral agreement from constituting a binding international agreement”.
54 It is also generally recognized that there may be unilateral agreements, meaning agreements arising out of unilateral acts in which only one party is promisor and may well be the only party bound. Unilateral contracts of the same character are recognized in some municipal legal systems. In the United States, for instance: “In the case of a unilateral contract, there is only one promisor; and the legal result is that he is the only party who is under an enforceable legal duty. The other party to this contract is the one to whom the promise is made, and he is the only one in whom the contract creates an enforceable legal right.” The assent of the promisee is not always required. (Corbin on Contracts (1950), Vol. I, sec. 21.) The doctrine of “consideration”, which plays so large a part in Anglo-American contract law, has not been taken over into the international law of treaties.
55 Professor Brierly, as Rapporteur on the Law of Treaties for the International Law Commission, declared:
“International legal rights and obligations may of course arise otherwise than by agreement between a plurality of persons. They may thus arise by unilateral act, or as a result of an act to which the beneficiary of rights created by such act is a stranger… A possible explanation of the binding force of so-called unilateral declarations creative of rights against the declarant is to be found in the theory of presumed consent of the beneficiary.” (1950 Yearbook of the International Law Commission, Vol. II, p. 227. See also the report by Lauterpacht as Rapporteur in 1953, ibid., Vol. II, pp. 101 ff.)
56 The points of view just summarized are soundly based on international practice and on the jurisprudence of the international courts. A few examples of unilateral and informal agreements may be cited.
57 In the FreeZones case the Permanent Court of International Justice considered that a unilateral manifesto issued by a domestic Sardinian organ had the character of a treaty stipulation (A/B No. 46 (1932), p. 145).
58 In Interpretation of the Statute of the Memel Territory (A/B No. 49), Lithuania claimed that the Statute of the Memel Territory was a Lithuanian enactment—but it was annexed to the Convention. Sir William Malkin, arguing for the United Kingdom (Series C No. 59, pp. 176–178), stated that, “whatever the form of the Statute might be, its true juridical nature was that of a treaty and ‘that any question of interpretation which may arise on the terms of those instruments [the Convention and the Statute] is to be determined, not by analogies drawn from other constitutions or constitutional laws, but by applying the ordinary methods of treaty interpretation’, a view which the court accepted”. (As summarized, apparently in agreement, by McNair, Law of Treaties (1961), p. 12.)
59 In the case of Railway Traffic, Lithuania and Poland, the Permanent Court of International Justice held that the participation of the two States in the adoption of a resolution of the Council of the League of Nations constituted an “engagement” (A/B No. 42 (1931), p. 116).
60 The Albanian Declaration to the Council of the League of Nations on October 2, 1921, which was registered with the League and published in IX League of Nations Treaty Series, page 173, was dealt with by the Permanent Court of International Justice as a treaty in the matter of Minority Schools in Albania (A/B No. 64 (1935)). There were other similar “declarations”, e.g. that of Lithuania which entered into force without any “ratification” on 11 December 1923 and was registered by the Secretariat of the League (22 League of Nations, Treaty Series, 393). Like the Minorities Treaties, these declarations contained clauses accepting the jurisdiction of the Permanent Court in case of “any difference of opinion as to questions of law or fact arising out of these articles”. On the conclusion that many such unilateral declarations have the force of treaties, see 1953 Yearbook of the International Law Commission, Vol. II, pp. 98 ff.
61 An unusual item is No. 319 in Vol. 20 of the United Nations Treaty Series entitled “Communiqué on the Moscow Conference of the three Foreign Ministers signed at Moscow on 27 December 1945, and Report of the Meeting of the Ministers of Foreign Affairs of the Union of Soviet Socialist Republics, the United States of America and the United Kingdom, dated 26 December 1945, together constituting an Agreement relating to the preparation of peace treaties and to certain other problems”. [Italics supplied.] The communiqué recites: “At the meeting of the three Foreign Ministers, discussions took place on an informal and exploratory basis and agreement was reached on the following questions………” The communiqué is signed by Messrs. Byrnes, Bevin and Molotov. The agreement covered such matters as the decision concerning the participants in signing certain peace treaties, the establishment of the Far Eastern Commission, of the Allied Council for Japan, and of the Commission for Korea, as well as other matters. It is interesting to compare this type of “agreement” which was registered in the United Nations Treaty Series, with the “agreements” recorded in the League Council's resolution of December 17, 1920. The question of registration will be considered later, but it may be noted that:
“The procés-verbal' of an international conference may form an adequate record of an informal engagement agreement. The United Kingdom has been advised in substantially the following terms:
There is no reason based on its informality why such a record should not constitute adequate evidence of an international engagement. International law prescribes no form for international engagements. There is no legal distinction between formal and informal engagements. If an agreement is intended by the parties to be binding, to affect their future relations, then the question of the form it takes is irrelevant to the question of its existence. What matters is the intention of the parties, and that intention may be embodied in a treaty or convention or protocol or even a declaration contained in the minutes of a conference.” [Italics supplied.] (McNair, Law of Treaties (1961), pp. 14–15.)
62 It is of no juridical consequence that the final agreements recorded in the preamble to the resolution of the League Council of 17 December 1920, frequently referred to as “the Mandate”, have not been located in any published separate signed instrument. If the fact of agreement is established, the identification of a document or instrument embodying the agreement is not required by any rule of international law. International law contains no rule comparable to a Statute of Frauds in some municipal legal systems. The well-known Ihlen Declaration dealt with by the Permanent Court in the case of Eastern Greenland became an engagement when it was uttered; the minute in which it was subsequently recorded was an instrument which proved the fact and the content of the engagement but these might have been proved by other evidence. As Judge Anzilotti said in his Dissenting Opinion (A/B No. 53, p. 91):
“There does not seem to be any rule of international law requiring that agreements of this kind must necessarily be in writing, in order to be valid.”
63 Nothing in the form—or formlessness—or novelty of the Mandate, militates against its being considered a “treaty”.
64 It has already been shown that the historical record and the recital in the Council's resolution of 17 December 1920 prove the existence of the agreement of the Mandatory for South West Africa with the four Principal Allied Powers. Both the Permanent Court and this Court have considered that a Mandatory was bound by an international agreement, embodied in an article of the Mandates, to accept the jurisdiction of the International Court. Specifically, the Permanent Court in Mavrommatis (Series A, No. 2, 1924) considered that the compromissory clause in the Palestine Mandate was a treaty or convention upon which its jurisdiction could be founded in accordance with the requirements of Article 36 of the Statute. With reference to Article 26 of the Palestine Mandate which is the counterpart of Article 7 of the South West Africa Mandate, the Court said:
“The parties in the present case agree that Article 26 of the Mandate falls within the category of “matters specially provided for in Treaties and Conventions in force’ under the terms of Article 36 of the Statute and the British Government does not dispute the fact that proceedings have been duly initiated in accordance with Article 40 of the Statute.”
65 It must not escape emphasis that the British Government, one of the principal authors of the terms of the Mandates, while challenging the jurisdiction of the Court, agreed that such jurisdiction could not be challenged on the theory that the Mandate was not a “treaty or convention” within the meaning of Article 36 of the Statute.
66 In the 1950 Advisory Opinion on the International Status of South West Africa, there was no dissent from the view that Article 7 of the Mandate was a treaty conferring jurisdiction on this Court. In his Separate Opinion (at p. 158), Judge Sir Arnold McNair cited the Mavrommatis Judgment of the Permanent Court in asserting “there can be no doubt that the Mandate, which embodies international obligations, belongs to the category of treaty or convention…”.
67 After a decade had passed, Lord McNair evidently found no reason to change his view. In the 1961 edition of his Law of Treaties, page 639, he says: “A Mandate is essentially a treaty containing many dispositive provisions, and it is not surprising that the Court should have pronounced in favour of its survival.” In footnote 3, he adds: “The author begs to refer to his Separate Opinion in I.C.J. Reports 1950, at p. 146, stating the legal character of a mandate and the reasons for which it seemed to him that the mandate survived the events of 1945–1946 and continued to exist.”
68 The more or less contemporary understanding that a mandate was a “treaty or convention” within the meaning of Article 36 of the Statute is further supported by an examination of Series E, No. 1 of the Publications of the Permanent Court of International Justice, published in 1925. Chapter III is entitled “The Court's Jurisdiction”, and at page 129, one reads:
“As already stated, the Court's jurisdiction embraces all matters specially provided for in treaties and conventions in force. A special publication, issued by the Court and completed and brought up to date annually, enumerates these treaties and conventions and gives extracts from relevant portions. The instruments in question may be divided into several categories:
A. Peace Treaties…
B. Clauses concerning the protection of Minorities…
The Mandatory States are seven in number. The following list gives the name of the mandatory, the mandated territory and the date and place of the conclusion of the compact.”
70 Does the Charter of the United Nations reveal a nice choice of terms to describe international agreements? In interpreting the Charter, including the Statute of this Court, and in interpreting the terminology of other treaties, it is important to ascertain whether the draftsmen have been discriminating in the selection of terms or whether varying terms have been used without conscious intention to ascribe to the term any particular meaning or any limitation upon its meaning. This is especially true of an instrument like the Charter of the United Nations, the various Chapters of which were drafted by separate commissions and committees, even though the Conference also had an elaborate co-ordinating machinery.
71 Examining the Charter of the United Nations, we find in Article 102 the expression “every treaty and every international agreement”. The comparable article of the Covenant of the League of Nations, namely Article 18, used the expression “treaty or international engagement”. The report of Committee IV/2 of the United Nations Conference which prepared the Charter, said that the word “agreement” in Article 102 should be interpreted to include certain unilateral engagements of an international character. (XIII UNCIO 705.)
72 Article 103 of the Charter uses merely the expression “international agreement” but there appears to be no reason to interpret this Article as excluding any treaty, convention, accord, or other type of international engagement or undertaking. In Article 80 (1) the Charter refers to “international instruments to which Members … may … be parties”. This clearly includes many kinds of international agreements.
73 In the Statute of the Court, Article 36, paragraph 1, refers to “treaties and conventions”. But in paragraph 2 (a) of the same Article and in Article 35 (2), only the term “treaty” is used. It could not possibly be argued that Article 35 (2) and Article 36, paragraph 2 (a), intended to exclude “conventions” assuming that one was able to distinguish between a “convention” and a “treaty”.
74 In Article 37 the term used again is “treaty or convention”, but in Article 38 1 (a) the text refers merely to “international conventions”. Surely it cannot be asserted that this last provision was designed to exclude “treaties”, “agreements”, “accords”, etc. The Report of the U.N. International Law Commission, 3 July 1962 (A/CN. 4/148, p. 15, para. 7) emphasizes the impossibility of giving a narrow meaning to the terms in Articles 36 (2) and 38 (1) and that no clear distinction can be made between the two. It is also true that on the basis of the terms used, there is no ground for assigning any particular restricted meaning to the expression “treaty or convention” in Article 36 or Article 37.
75 In various alternate pleadings, Respondent considers Article 7 separately and apart from the “Mandate Agreement as a whole”, and this approach can be justified as has already been indicated by treating this article as a “fifth agreement”. For purposes of the jurisdictional issue now before the Court, Article 7 is the key; if the consent to the jurisdiction of the Court which was embodied in Article 7 has not been vitiated and if it is applicable to this Court and to these Applicants, this Court has jurisdiction to hear the instant cases on the merits, since, as will be shown, the third and fourth objections to the jurisdiction are untenable.
76 The principle of separability is now accepted in the law of treaties, especially with reference to multipartite treaties, although the older classical writers tended to reject it. It is a doctrine which exists in municipal contract law (sometimes under the label of “divisibility”) and in the law governing the construction of statutes.
77 In treaty law the principle is evidenced in connection with the effect of war on treaties, and by the admission of reservations to treaties, since reservations essentially constitute the separation of a part of a treaty from the whole in order to exempt the contracting party from obligation under the separated part. Numerous examples of separability in the practice of States are to be found in such monographs as Tobin, Termination of Multipartite Treaties (1933); Stephens, Revisions of the Treaty of Versailles (1939); Hoyt, The Unanimity Ride in the Revision of Treaties; a Reexamination (1959). The Permanent Court of International Justice recognized the separability principle in the Free Zones and in The Wimbledon cases. From the standpoint of international law, part of the Mandate Treaty may have remained in force although other parts did not.
78 Given the generally agreed proposition that the Mandate as an institution survived, and the principle of separability being admitted, the question which, if any, of the provisions of the Mandate did not survive cannot be tested by an inquiry whether this or that provision was “essential” to the operation of the Mandate, or whether it was merely “important” or “useful” or, indeed, “inconsequential”; there is no objective standard which can be used to make such an appraisal. The question which can be answered is whether some provision or part of a provision became inoperable and if so whether that inoperable portion was so essential to the operation of the provision in question that the whole provision falls. The provision which is particularly in question is the reference in Article 7 of the Mandate to “another Member of the League of Nations”.
79 In order to analyze the legal position of other “Members of the League of Nations” in connection with the Mandates which use this descriptive label in the compromissory article, such as Article 7 of the Mandate for South West Africa, and in various other articles, such as Article 5 of that same Mandate, it is not necessary, in my opinion, to assert that the Members of the League, presumably represented by the Council of the League, were “parties” to the Mandate agreements. They were certainly not “parties” to the agreements between the Mandatories and the four Principal Powers, and if the Council Resolution of 17 December 1920 is considered as the treaty, the facts of history indicate they were not “parties” thereto although the League of Nations itself may be considered a “party”. The Members of the League were, however, third State beneficiaries. The inhabitants of the territories were also beneficiaries but the present issue before the Court does not require a consideration of the nature of the rights of “any peoples” as mentioned in Article 80 (1) of the Charter.
80 It is possible to agree with the Permanent Court of International Justice that “it cannot be lightly presumed that stipulations favourable to a third State have been adopted with the object of creating an actual right in its favour” (Free Zones, Series A/B, No. 46, p. 147), but still to decide, as that Court did, in the case then before it, that actual rights were created—in this case, in favour of Members of the League by the Mandates. The Peace settlements at the end of World War I contain various comparable examples such as Article 380 of the Treaty of Versailles relative to the Kiel Canal, and other provisions concerning the use of waterways of international concern. (Cf. Lauterpacht, The Development of International Law by the International Court (1958), sec. 96.)
81 Clearly the provision concerning missionaries in Article 5 of the Mandate for South West Africa was a stipulation pour autrui and the other Members of the League of Nations were beneficiaries thereof. The provision reads as follows:
“Subject to the provisions of any local law for the maintenance of public order and public morals, the Mandatory shall ensure in the territory freedom of conscience and the free exercise of all forms of worship, and shall allow all missionaries, nationals of any State Member of the League of Nations, to enter into, travel and reside in the territory for the purpose of prosecuting their calling.”
As Sir Gerald Fitzmaurice, when Rapporteur on the Law of Treaties for the United Nations International Law Commission, said in the course of his excellent analysis of the pacta tertiis rule:
“It is not a condition … that the third State should be specified eo nomine, provided it is clear from the context or surrounding circumstances what State is intended, or that a group or class of States is intended of which the claiming State is a member.” (1960 Yearbook of the I. L. C., Vol. II, p. 81.)
The rights of these beneficiaries could be protected by contentious proceedings in the Permanent Court of International Justice because the compromissory clause in Article 7 was also a stipulatio, pour autrui of which League Members were beneficiaries. The “missionary clause” in Article 5 is the type of clause which Lord Finlay discussed in connection with the Palestine Mandate as being appropriate for submission to the Court. It supplies in this case a test for the survival of certain rights, thus contributing to a decision on the principle of such survival.
82 In the report of Committee IV/2 on Article 102 of the Charter, to which reference has already been made, it is implied that a third State which is the beneficiary of a unilateral engagement of an international character, must “accept” the engagement in order to make it binding. This intimation may well have been based upon an incidental comment of the Permanent Court in its discussion of the pacta tertiis rule in the Free Zones case. Lauterpacht's analysis of this judgment of the Permanent Court in which he concludes the Court did not consider formal acceptance to be requisite, is sound. (Ibid., pp. 306 ff.) But if general acceptance by Members of the League in advance of specific invocation were considered necessary, one can find it in the Assembly's acceptance of the C Mandates and in the continuing conduct of both the Council and the Assembly with reference to the administration of the C Mandates.
83 As already quoted, Brierly, as Rapporteur for the International Law Commission, suggested an explanation of the binding force of unilateral declarations creative of rights against the declarant, in a theory of “presumed consent of the beneficiary”. As also quoted above, Corbin notes that in American contract law, the assent of the promisee is not always required. A stipulation pour autrui may also be considered an offer which remains outstanding until withdrawn or terminated in some other way. Since, as will be shown to be true in these cases, the offer contained in Article 7 was still outstanding on 4 November 1960, the filing of the Applications on that date was an acceptance.
84 Most of these explanations of unilateral engagements are based upon some municipal system of contract law and reveal an anxiety to fit international law into a national suit of legal clothes. For this purpose there is at times laboured insistence upon identifying the parties. It may be for this reason that this Court has analyzed declarations under the Optional Clause as acts by which a “State becomes a Party to the system of the Optional Clause” and speaks of the “contractual relation between the Parties”. (Rights of Passage over Indian Territory, Preliminary Objections, I.C.J. Reports 1957, p. 145. Italics inserted.) The Permanent Court of International Justice, however, had pointed out that a declaration under the Optional Clause is “a unilateral act” (Phosphates case, Series A/B, No. 74, p. 23), and, as Lauterpacht has reminded, “Privity of contract is not a general principle of law”. International law, not being a formalistic system, holds States legally bound by their undertakings in a variety of circumstances and does not need either to insist or to deny that the beneficiaries are “parties” to the undertakings.
85 The situation in regard to the rights of Members of the League as third States beneficiaries, may be more clearly seen in its basic elements if one considers (without any wish to consider the merits and solely by way of illustration) one of the B Mandates, such as that held by Belgium for Ruanda-Urundi. Under Article 7 of this Mandate, Belgium agreed to the so-called Open Door principle which, inter alia, forbade Belgium to discriminate in favour of her own nationals and against the nationals of other “Members of the League” in the granting of concessions. It is not apparent why it would be reasonable to say that while it would have been a violation of Belgium's contractual obligation so to discriminate against a French citizen in the matter of a concession on 18 April 1946, the day before the dissolution of the League, Belgium would have been free so to discriminate on 20 April 1946. On the contrary, if Belgium had so discriminated on 20 April, France could properly (if diplomatic negotiations failed to result in a settlement) have seized the Court of this dispute concerning the interpretation or application of the Mandate, relying on Article 13 of the Mandate for Ruanda-Urundi (which contains a compromissory clause identical with that in Article 7 of the Mandate for South West Africa), and on Article 37 of the Statute to which both Belgium and France are parties.
86 In the Mandate for South West Africa the Open Door Clause was not included, but there was the provision in Article 5, already quoted, requiring the free admission of missionaries who were nationals of a “Member of the League”. This Article embodies the same provisions as those in Article 8 of the Belgian Mandate. Is it to be assumed, following the same line of reasoning as before, that in this case, the Mandatory would have been free (so far as the obligation in the Mandate was concerned and assuming for the moment the non-applicability of any general rule of international law concerning the rights of aliens) to exclude or to oust a French missionary from South West Africa on 20 April 1946? There is no justification for such a conclusion as a matter of common sense and reasonable construction unless again one espouses the rejected view that on the dissolution of the League nothing whatever was left of the Mandate or of the rights and obligations appertaining thereto, and unless one ignores the Mandatory's undertaking given at the final session of the League Assembly which will be discussed shortly.
87 But, it is argued, the right of the French missionary to enter into or to reside in South West Africa depended, according to the terms of Article 5 of the Mandate, upon the missionary being a national of a “Member of the League”; after the dissolution of the League there were no Members and hence no nationals of Members. Accordingly, it would be said, the French missionary did lose his right to enter or reside at the moment when the League was dissolved.
88 Such an argument assumes that the reference to “another Member of the League” was not, as Lord McNair concluded in his Separate Opinion in 1950 (at pp. 158–159), descriptive of a class or category, but that it posed an imperative condition. The most reasonable interpretation is that the specification of beneficiaries of various provisions in all the “Mandates in terms of “Members of the League” was the natural result of the fact that the Mandates were drawn up as part of the whole League system, a system which it was fondly hoped in 1919 would become universal. In drawing up agreements within the framework of this system, it was natural to refer to other Members of the League. Article 22 of the Covenant, in accordance with which the Mandates were established, was part of the Treaties of Peace ending a great war with Germany and her allies. It is reasonable to suppose that the drafters may have had in mind a specification which would, immediately after the War, deny privileges in the mandated areas to Germans or other ex-enemies. This interpretation is borne out by the incident of the rejection of the complaint in 1925 by Germany before becoming a Member of the League. (Permanent Mandates Commission, Minutes 7th Session (1925), p. 54.) But the quality of League Membership as compared subsequently to the quality of a friendly former co-belligerent such as the United States, was not, and was not intended to be, an essential quality or a perpetually imperative condition. The loss by the French missionary in 1946 of the quality of being a national of a “Member of the League” did not introduce any element of frustration which would impede the performance of the Mandatory's obligation to permit his entry and residence. Granted the reasons which have been suggested why there should have been granted special rights to the Members in 1919, such reasons would not be applicable in 1946; cessante ratione legis, cessat ipsa lex. If the Mandatory claimed the right to limit the privileges to missionaries who were nationals of States which were Members of the League when the League came to an end, the claim would be reasonable and it would avoid any charge that there was imposed on the Mandatory an obligation more onerous than that which it had originally assumed.
89 Whether the presence of missionaries in the territory in question was “essential” to the discharge of the “sacred trust” can scarcely be determined by some objective test, subjectively conceived; perhaps an answer could be given by taking evidence, but I leave that aside.
90 If it be said that only such elements of the Mandates survived as related to the welfare, etc., of the inhabitants, then the rights of missionaries would be included in that group of provisions. The rights of missionaries in the South West African Mandate are set out in Article 5, which deals in general with freedom of conscience and worship. Surely the Mandatory should not be privileged to interfere with the religious life of the inhabitants by expelling missionaries on April 20 1946, on the technical ground that they no longer qualified as nationals of a Member of the League. If this stipulation pour autrui survived the dissolution of the League despite the reference to a descriptive qualification which was no longer applicable, other such stipulations could also have survived.
91 What then of Article 7—and for the purpose of the present analysis one refers only to paragraph 2 of that Article? Again one looks in vain for some established objective test to determine, whether in 1919 and 1920 possible reference to the Court was considered “essential” to the operation of the Mandate. One knows that the provision was inserted in all the drafts from the outset without any opposition to the fundamental principle, though there were some drafting problems to which attention has been called. In Mavrommatis, Lord Finlay said (at page 43) “it was highly necessary that a Tribunal should be provided for the settlement of such disputes” as he thought might well arise under the Palestine Mandate; he might have felt differently about C Mandates, but the Court clause was in A, B and C Mandates as in all the minorities treaties. Was there frustration, impossibility of performance after 19 April 1946? Did Article 7 become inoperable? In contrast to Article 6, where the organ—namely the Council of the League—disappeared, in Article 7 a new organ had been substituted for the old by the operation of Article 37 of the Statute of the Court to which of course the Mandatory was a party. That transformation took place on the birth of the United Nations, and there can be no doubt that Article 7 provided for reference to this Court during that period from the birth of the United Nations to the death of the League.
92 On the dissolution of the League it is true there were no longer States which were “Members of the League”, but did this fact frustrate performance? It has been shown that the disappearance of the quality of Member did not make Article 5 inoperable and the case is even stronger here since under Article 7 the Mandatory is not the actor, is not the operator, so to speak. In so far as concerns the administration or operation of the Mandate, the disappearance of the Council of the League might be said to create a measure of frustration in regard to the required acts of the Mandatory in filing reports. In regard to Article 7, however, the new Court was available. In contrast to the United Nations system it will be recalled that the Permanent Court was not a part or organ of the League and the winding up of the Court was separate from the dissolution of the League. For the successful operation of the Mandate during the life of the League, the quality of being a Member of the League was not necessary to the operation of Article 7; as already shown there were quite other reasons for referring to the Members. After all, these “Members of the League” were not just concepts, “ghosts seen in the law, elusive to the grasp”. They were actual States or self-governing entities whose names could be recited. The names of the original Members were listed in the Annex to the Covenant, but it was not a fixed group; it fluctated as new Members were admitted or as old Members terminated their memberships. Yet at any given moment—as for example the moment of the dissolution of the League—the Mandatory would always have been able to draw up, by names, a list of the States included in the descriptive term “Member of the League”.
93 It must also be remembered that the Mandatory was a “Mandatory of the League of Nations”. But according to the accepted view, the termination of the League did not terminate the Mandate as an institution which means that the Mandatory also, and specifically the Union of South Africa, qua Mandatory, must have survived the dissolution of the League although its mandator was no longer in existence.
94 After the dissolution of the League, how could the Mandatory assert frustration or impossibility of performance in regard to accepting the jurisdiction of the Court as he had agreed to do, in accepting Article 7 originally; in accepting the transformation effected by Article 37; and by promising in the final session of the League Assembly that he would “continue to administer the territory scrupulously in accordance with the obligations of the Mandate”?
95 It has now been pointed out with regard to Respondent's acceptance of the jurisdiction of the Permanent Court of International Justice, that there are no technical rules of international law which require that this acceptance be poured into some particular mould known as “treaty or convention”. It has further been shown that these terms as used in Articles 36 and 37 of the Statute cannot be considered generally to have any narrow, technical, restricted meaning. It is now necessary to see whether, when the Charter provided that in certain cases the International Court of Justice should be substituted for the Permanent Court of International Justice, it was intended that those provisions should be interpreted in a strict and technical sense.
96 There is no basis for such an assumption. It is familiar history that two of the central problems involved in adjusting the international judicial machinery which had existed under the League of Nations, to the United Nations Organization, were the questions whether the old Court should be continued or whether there should be a new Court, and whether the Court should be given general compulsory jurisdiction. In the final decision to establish a new Court, it was agreed that there should be as much continuity with the old as possible and to emphasize the close relationship, the Charter recites in Article 92 that the new Statute “is based upon”the old Statute. “In a sense”, says the Report of Committee IV/I of the San Francisco Conference, “… the new Court may be looked upon as the successor to the old Court which is replaced. The succession will be explicitly contemplated in some of the provisions of the new Statute, notably in Article 36, paragraph 4 [later numbered 5], and Article 37.” (13 UNCIO 384.)
97 It was clearly the intention in the drafting of the Statute of the International Court of Justice to preserve for the new Court just as much as possible of the jurisdiction which appertained to the old Court. For this purpose, Article 36 (5) provided for the transfer of the obligations assumed by States which made declarations under Article 36 of the old Statute, and Article 37 provided for a similar transfer where a “treaty or convention” had contained a provision for the jurisdiction of the Permanent Court. As is said in the Joint Dissenting Opinion in Aerial Incident (1959), page 166 and page 171: “It was for the purpose of preserving for the new Court the compulsory jurisdiction which had been conferred upon the old Court and whose period of validity had not expired that paragraph 5 was adopted and inserted in Article 36 of the present Statute and that Article 37 was introduced… Article 37 provides the consensual link with regard to the succession of the International Court of Justice to the jurisdiction of … the Permanent Court…” It would not be in accordance with the spirit and intent of Articles 36 (5) and 37 to interpret them in such a way as to leave a gap through which would fall to the ground such an agreement as is recorded in Article 7 of the Mandate.
98 In applying the foregoing analysis to the instant cases, it must be reemphasized that this analysis is made with aid of aspects of the Mandate which are used solely for the purpose of illustration and without wishing to enter upon the merits. Having this approach in mind, it can be said that the Applicants, Ethiopia and Liberia, had, on 18 April 1946, certain rights in South West Africa for and on behalf of missionaries who were their nationals, that these rights and their continuance did not depend upon the question whether or not these missionaries continued to have the quality of being nationals of “Members of the League of Nations”; and that accordingly these rights survived the dissolution of the League. If a missionary who was a national of one of the Applicants had been denied admission, and if negotiations over the resulting dispute between the Applicant and the Mandatory failed, Applicant would have been entitled to seize this Court by virtue of Article 7 of the Mandate and Article 37 of the Statute. This is true because the Mandate agreement was, in 1945, and was on 4 November 1960, a “treaty in force” between the Mandatory and the four Principal Allied Powers. The contractual arrangement between the Mandatory and the four Principal Powers was not terminated by the dissolution of the League and therefore the rights and obligations of the four Powers at any rate were not affected by the dissolution of the League, and the rights vested in third States beneficiaries, which category includes the Applicants, persist as long as this treaty is in force. The only theory on which it can be said that this treaty is no longer in force would be one posited on the total elimination of the Mandate in every respect. Such a conclusion would eliminate not only the obligations but also the rights of the Mandatory and it could not tolerate the generally accepted thesis that the Mandate continued as an institution.
99 Are the conclusions which have up to this point been arrived at, vitiated by a consideration of the case of a State such as Brazil which gave up its League membership during the active life of the League? I think not. While the League was operating, it was natural for the Members to intend that membership, which entailed some very definite obligations—actual in the matter of financial contributions and potential in the matter of political responsibilities such as might arise under Article 16 of the Covenant—should entail also some corresponding advantages. Obviously the territorial guarantees under Article 10 of the Covenant were reciprocal and Brazil—to continue the example—lost its right to invoke that guarantee. Similarly in regard to economic rights in the mandated areas, a Mandatory might well have said: “My freedom is limited, I am restricted by the obligations which I have assumed in the Mandate and I shall continue to bear these burdens in respect of the large numbers of States which are Members of the League. But since you have chosen to leave the League, I am not obliged to continue to subject myself to an additional burden on your behalf.” The view set out above, following Sir Arnold McNair, that the term “Members of the League” was descriptive and not conditional, does not mean that upon assuming the Mandate for South West Africa the Union of South Africa was obligated to grant certain privileges to missionaries, nationals of Germany. Nor does it mean that after the resignation of Brazil, the Union was bound to grant those privileges to nationals of Brazil. But the situation was very different when by common consent in 1946 the Mandatory joined with the other States which were then Members of the League in dissolving the League because the United Nations had been established in its place. To assert that this dissolution immediately freed the Mandatory of the obligations in the Mandate such as those relating to missionaries, in regard to which the disappearance of the League introduced no iota of frustration or impossibility of performance, but that at the same time the Mandatory retained rights of authority, control and administration, cannot, in the language of the Court's 1950 Opinion, “be justified”. What is said concerning the “missionary clause” applies with equal force to the provisions in the compromissory clause of Article 7 which provided that disputes concerning these surviving rights might be submitted to the Court. If the Mandate survived as an institution, the Mandatory was still subject to certain obligations and those obligations were owed to the States which were Members of the League at the moment when by common consent the League was dissolved.
100 The foregoing reasoning stands by itself, but it is supported by another aspect of the situation.
101 In the meeting of the League Assembly on 9 April 1946, the representative of the Union of South Africa made a statement in part as follows (Preliminary Objections, pp. 38–39):
“Since the last League meeting, new circumstances have arisen obliging the mandatory Powers to take into review the existing arrangements for the administration of their mandates… it is the intention of the Union Government, at the forthcoming session of the United Nations General Assembly in New York, to formulate its case for according South West Africa a status under which it would be internationally recognised as an integral part of the Union… 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 compliance 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 responsibilities until such time as other arrangements are agreed upon concerning the future status of the territory.” (Italics supplied.)
102 This was an undertaking of an international character by which the Union of South Africa assumed an international obligation. The Permanent Court held in the Free Zones case that binding force attached to a declaration made in the Court by the Agent of a State (A/B No. 46, at p. 170). The Permanent Court held in Eastern Greenland that a declaration by a Foreign Minister to the Ambassador of another State created a binding international obligation (A/B No. 53 (1953), at p. 71).
103 Surely a formal pledge of the kind just quoted made by the representative of a State to the Assembly of the League also constituted a binding international obligation. As quoted above from McNair, Law of Treaties, “a declaration contained in the minutes of a conference” may embody a binding international engagement.
104 There was reliance on this and other similar declarations as revealed by the fourth paragraph of the League Assembly's resolution of 18 April, in which the Assembly:
“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.” (Preliminary Objections, p. 43. Italics supplied.)
105 Now one of the “obligations” under the Mandate which the Union of South Africa thus newly agreed to respect after the dissolution of the League, was the obligation under Article 7 to submit to the jurisdiction of the Court; by accepting the Charter, it had already agreed to substitute the International Court of Justice for the Permanent Court. In its pledge to the Assembly, the Union of South Africa pointed out that the disappearance of certain organs of the League would prevent full compliance with the letter of the Mandate. Since the Permanent Court had by agreement (Article 37 of the Statute) been replaced by the International Court, the disappearance of the Permanent Court in no way prevented full compliance with the letter of Article 7, so far as concern the basic consent to the jurisdiction of the Court.
106 Did the Union of South Africa indicate that with regard to the obligation under Article 7 it intended to rely on the fact that in some ten days there would be no State which could call itself a “Member of the League of Nations”? It did not; it could hardly be claimed that “Members” of the League were “organs” of the League, which disappeared. It would be a complete denial of the bona fides of the Government of the Union of South Africa to assert that the pledge, in sweeping terms, “to regard the dissolution of the League as in no way diminishing its obligations under the Mandate”, was given tongue-in-cheek; as if saying that we still agree to submit to the jurisdiction of the Court only because we know that in a few days there will be no State which will be entitled to call us to account for the fulfilment of that obligation. The Court cannot thus impugn the good faith of the Respondent. If one attributed such an unspoken mental reservation to the Union of South Africa, it would be necessary to assume also, in accordance with the preceding analysis of the obligations under the Mandate, that when the Union Government undertook to continue “to administer the territory scrupulously in accordance with the obligations of the Mandate” it did not intend to respect its obligation to permit the entry and residence of missionaries because none of them could any longer claim to be a national of a Member of the League.
107 It must also be recalled, as stated above, that a stipulation pour autrui may be considered an offer which remains outstanding until withdrawn or terminated in some other way. The declaration of the Respondent of 9 April 1946 certainly negatives the idea of a withdrawal and may, indeed, properly be considered a renewal of the offer, specifically extending it beyond the dissolution of the League. Nothing further intervened which could have had the legal effect of terminating the offer before the Applications in these cases were filed on 4 November 1960.
108 The binding undertaking given by the Union of South Africa on 9 April 1946 must be taken as a confirmation and an acceptance of the interpretation given above, namely that the obligation, inter alia, under Article 7, paragraph 2, continued to be applicable to and for the benefit of those States which at the moment of the dissolution of the League of Nations were Members thereof. It is of no consequence that there was no express mention of the Court. Consent in advance is just effective as consent during judicial proceedings. The Permanent Court of International Justice (in Upper Silesia(Minority Schools), Series A. No. 15 (1928), pages 24–25), said “there seems to be no doubt that the consent of a State to the submission of a dispute to the Court may not only result from an express declaration, but may also be inferred from acts conclusively establishing it”. And, again, “there is no rule laying down that consent must take the form of an express declaration rather than that of acts conclusively establishing it”. His review of these and other holdings by the Permanent Court led Judge Sir Hersch Lauterpacht to conclude that “the Court will not subject acceptance of its jurisdiction to requirements of form likely to deny effect to the consent of the parties, however expressed; it will not permit a party to withdraw consent—which, in good faith, must be assumed to have actually been given—on the ground that it has not been expressed in accordance with alleged stringent requirements of the Statute. There are no such requirements.” (The Development of International Law by the International Court (1958), p. 106.)
109 Because of the last-minute amendment of Respondent's submissions, a few words should be said about the registration of treaties.
110 The suggestion has been made that perhaps the Mandate for South West Africa was never “in force” because the agreement with the Four Powers or the Council resolution of 17 December 1920, was not formally registered and published in the League of Nations Treaty Series. Aside from the patent absurdity of flying in the face of history and the practice of States and of international organizations for some 40 years, an analysis of Article 18 of the Covenant and of applications of that Article forbids a strict literal interpretation of the Article's last sentence which reads: “No such treaty or international engagement shall be binding until so registered.”
111 There is abundant literature on the subject of registration under Article 18 and various theories as to the legal effect of the last sentence have been supported by different writers. There is no general support for a strict literal interpretation. The Third Assembly of the League of Nations said that “time and experience alone” would provide the material needed for a precise interpretation. Confronted with a comparable problem, the Legal Committee of the United Nations General Assembly in 1946 recognized that “experience and practice” would aid “in giving definition to the terms of the Charter” as set forth in Article 102.
112 The history of the provision which is well-known, and numerous reports and discussions, show that the main objective of Article 18 of the Covenant was publicity—it was a provision against secret treaties. At least two types of recording were provided for in the regulations adopted by the Council of the League in 1920 for the operation of Article 18. In addition to the usual registration and publication in the Treaty Series, Article 11 of the Council's Memorandum, approved 19 May 1920, points out that there are or may in the future be various treaties or conventions requiring special treatment. The principal example was afforded by Article 405 of the Constitution of the International Labour Organisation which provided that copies of Draft Conventions (under which actual legal obligations arose) were to be “deposited” with the Secretary-General of the League who would communicate a certified copy to each Member. Subsequently ratifications of such Draft Conventions were “registered” by the Secretary-General of the League (see P.C.I.J., Series A/B, No. 50).
113 There were numerous instances of agreements which were considered legally effective but which were not registered. Some examples may be given.
114 Although it is the practice of the United Nations to register the Declarations made by States upon becoming Members of the Organization, such Declarations concerning Membership in the League of Nations were not registered; unquestionably, however, they resulted in the assumption of rights and obligations under the Covenant. For example, according to the records of the Fifteenth Assembly of the League (pp. 74–77 of the Plenary Meetings) the Minister of Afghanistan in London telegraphed to the Secretary-General that on instructions of his Government he asked that Afghanistan be admitted as a Member of the League. His telegram said:
“The Government of Afghanistan is prepared to accept the conditions laid down in Article 1 of the Covenant and to carry out all obligations involved in membership of the League.”
116 Special agreements submitting cases to the Permanent Court were not always registered but the Court did not hesitate to base its jurisdiction upon such unregistered agreements. A good example is afforded by the formal agreement between France and Switzerland of which ratifications were exchanged on 21 March 1928, concerning the submission of the Free Zones case to the Permanent Court. In the Mavrommatis case the jurisdiction of the Court was based partly on the Mandate, which was not registered, and partly on the concession protocol of the Treaty of Lausanne which was not registered until after the Court's decision.
118 In any event, the regulations for registration adopted by the Council were measures of administrative convenience and did not even purport to be comprehensive interpretations of the scope and effect of Article 18. The recording of an engagement in a public resolution of the Council of the League fulfilled the essential publicity purposes of Article 18 of the Covenant. The deposit of the Mandate instrument for German South West Africa in the archives of the League and the forwarding of certified copies by the Secretary-General to various States indicate a practice quite similar to that prescribed for Draft Conventions of the International Labour Organisation.
119 The references in this Mandate instrument to the basic agreements on the Mandates and their terms, also satisfied, in respect to those agreements, the purposes of Article 18. (Cf. Schachter “The development of international law through the legal opinions of the united Nations Secretariat”, XXV Br. Yr. Bk. Int. L. (1948), p. 91 at 127 ff; Hudson, The Permanent Court of International Justice 1920–1942 (1943), pp. 435, 439, 636 and authorities cited.)
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120 For purposes of illustration and analysis, the foregoing discussion has dealt principally with what may be called “tangible” rights such as those subsumed under the “open door” label or those specifically dealing with the entry and residence of missionaries. It remains to be determined whether States who were beneficiaries of the undertakings given by the Mandatory in the Mandate Agreement obtained other rights in connection with the operation of the Mandate as an institution or status, or in connection with the operation of the Mandate as a treaty. This inquiry bears upon Respondent's contention that a “dispute” within the meaning of Article 7 of the Mandate must involve a conflict concerning a legal right or interest and not differences of opinion unconnected with legal rights or interests. Without pausing to consider the basic validity of this contention, I shall analyze the nature of the rights or interests involved in the alleged “dispute” between Applicants and Respondent.
121 It may be noted at once that Applicants assert that there is a “dispute” with reference to Articles 2, 4, 6 and 7 of the Mandate (Memorials, p. 62). This assertion does not refer to Article 5 which, as noted above, is the only article in this particular Mandate which contains a specification concerning the rights of nationals of States other than the Mandatory. Hypothetically, provisions referring to the “inhabitants” of the territory could refer to nationals of such States if they happened to inhabit the territory, but no such situation has been presented here.
122 The jurisdictional provision in Article 7 can be invoked only if there is a “dispute”. If there is a “dispute” it must further be shown that it has two characteristics: first, it must be a dispute which cannot be settled by negotiation; and second, it must relate to the interpretation or application of the Mandate. Attention may be paid first to the meaning of “dispute”. The identification of the other party to the “dispute” will also be considered.
123 To take the narrow definition which has respectable support, a “dispute” in the context of a compromissory clause is one which can be settled by the application of principles of law. But as the Permanent Court said in Serbian Loans (Series A, Nos. 20/21, at p. 20), Article 38 of the Statute cannot be regarded as excluding the possibility of the Court's dealing with disputes which do not require the application of international law, seeing that the Statute itself expressly provides for this possibility. The new words inserted in Article 38 of the Statute of this Court do not affect the validity of the Permanent Court's observation. The four sub-paragraphs of Article 36 (2) of the Statute of the Court give a more complete description but they have a particular purpose and do not constitute a comprehensive definition. The Permanent Court of International Justice, quoting the first paragraph of Article 36, commented: “The Court's jurisdiction depends on the will of the Parties. The Court is always competent once the latter have accepted its jurisdiction, since there is no dispute which States entitled to appear before the Court cannot refer to it.” (Upper Silesia (Minority Schools), Series A, No. 15, at p. 22.) It is of course apparent from common practice in drafting treaties for pacific settlement and compromissory clauses, as well as from sub-paragraph (c) of paragraph 2 of Article 36 of the Statute, that a “dispute” in the sense here intended may relate to a question of fact. The “facts the existence of which the Court has to establish may be of any kind” said the Permanent Court in Serbian Loans (p. 19). For this analysis, one may admit that an argument between two governments as to whether their armaments were designed for offence or for defence, would not be a “dispute”. But if the challenge to the existence of a “dispute” in its legal sense is raised in a preliminary objection to the jurisdiction of a tribunal, the question is how deeply the Court must probe into the facts and law in order to determine whether there is a “dispute”.
124 Suppose, for example, State A alleges in a diplomatic note to State B that State B has violated a commercial treaty of 1880 between A and B. B in reply affirms that the treaty is no longer in force. After futile negotiations, A submits the case to an international court in accordance with the terms of a treaty for pacific settlement concluded by B with A. This treaty for pacific settlement contains the ordinary provision that the parties agree that disputes concerning legal rights may be submitted to an international court by either party. B contends that the court has no jurisdiction since there is no “dispute” within the meaning of the treaty for pacific settlement because A bases its contention on a treaty which is no longer in force. The adjudication of the question whether the treaty is in force and therefore whether A's case rested upon a legal right, is a question for the merits and not a question to be settled on a plea to the jurisdiction. B in effect admits there is a “dispute” but asserts that A's substantive position is unsound. It may be possible to imagine a case where the allegation of a legal right was so obviously absurd and frivolous that the Court would dismiss the application on a plea to the jurisdiction, but such a situation would be rare. In any event, it is not the situation in the instant cases.
125 In the instant cases, it is helpful to look first at the second characteristic of the “dispute” which has been noted above, i.e. that it must relate to the interpretation or the application of the provisions of the Mandate. I do not see how it can be seriously contended that this condition is not fulfilled since it is sufficient basis for the jurisdiction of the Court if any of Applicants' contentions are so related. On the face of those contentions, and before the Court has examined them on their merits, the Court must find that, assuming there is a “dispute”, it is one which relates to the interpretation or application of the provisions of the Mandate.
126 In Interpretation of Peace Treaties, this Court had to deal with the meaning of the term “dispute” in a treaty clause providing for decision by a special procedure. The Court said (I.C.J. Reports 1950, at pp. 74–75):
“Whether there exists an international dispute is a matter for objective determination. The mere denial of the existence of a dispute does not prove its non-existence……… There has thus arisen a situation in which the two sides hold clearly opposite views concerning the question of the performance or non-performance of certain treaty obligations. Confronted with such a situation, the Court must conclude that international disputes have arisen……… Inasmuch as the disputes relate to the question of the performance or non-performance of the obligations provided in the articles dealing with human rights and fundamental freedoms, they are clearly disputes concerning the interpretation or execution of the Peace Treaties.”
127 However, it has in effect been contended that the allegations of the Applicants bear no relation to Applicants' legal rights and that the true meaning of the compromissory clause is that the “dispute” must relate to the interpretation or application of those provisions of the Mandate which vest certain legal rights in the Applicants, such as, perhaps, the right under Article 5 for missionaries to enter the territory. No such limitation is to be found in Article 7 which refers to “any dispute whatever … relating to the interpretation or application of the provisions of the Mandate”. Since, however, jurisdictional issues must be scrupulously explored, one may consider whether it is to be presumed that the rights of other States to dispute about the interpretation or application of the Mandates were limited to rights concerning what have been called their “material” interests.
128 International law has long recognized that States may have legal interests in matters which do not affect their financial, economic, or other “material”, or, say, “physical” or “tangible” interests.
129 One type of illustration of this principle of international law is to be found in the right of a State to concern itself, on general humanitarian grounds, with atrocities affecting human beings in another country. In some instances States have asserted such legal interests on the basis of some treaty, as, for example, some of the representations made to the Belgian Government on the strength of the Berlin Act of 1885, concerning the atrocities in the Belgian Congo in 1906–1907. In other cases, the assertion of the legal interest has been based upon general principles of international law, as in remonstrances against Jewish pogroms in Russia around the turn of the century and the massacre of Armenians in Turkey. (See generally, Rougier, Antoine, La théorie de l'intervention d'humanité, XVII, Revue générale du droit international public (1910), pp. 468– 526; Stowell, Intervention in International Law (1921), passim.
130 States have also asserted a legal interest in the general observance of the rules of international law. For example, in the cases of Manouba and Carthage, as submitted by France and Italy to the Permanent Court of Arbitration in 1913, in addition to claims for material damage, France claimed 100,000 francs for the “moral and political injury resulting from the failure to observe international common law…”. Although the Permanent Court did not award damages on this ground, the Arbitral Tribunal in the case of the I'm Alone between the United States and Canada in 1935, awarded in addition to amounts for compensation for material damage, a sum of $25,000, “as a material amend in respect of the wrong”.
131 For over a century treaties have specifically recognized the legal interests of States in general humanitarian causes and have frequently provided procedural means by which States could secure respect for these interests. The history of the international efforts to suppress the slave trade from at least 1841 affords numerous examples, but one may turn to more recent cases, for example, the Minorities Treaties at the end of World War I. Illustrative is the provision in Article 11 of the Treaty of St. Germain-en-Laye of 10 September 1919:
“The Serb-Croat-Slovene State further agrees that any difference of opinion as to questions of law or fact arising out of these Articles between the Serb-Croat-Slovene State and any one of the Principal Allied and Associated Powers or any other Power, a member of the Council of the League of Nations, shall be held to be a dispute of an international character under Article 14 of the Covenant of the League of Nations. The Serb-Groat-Slovene State hereby consents that any such dispute shall, if the other party thereto demands, be referred to the Permanent Court of International Justice.” (Hudson, I International Legislation, pp. 312–319.)
“Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.” (Vol. 78 United Nations Treaty Series, pp. 278–282.)
As this Court said of the Genocide Convention: “In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely the accomplishment of those high purposes which are the raison d'être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions.” (I.C.J. Reports 1951, at p. 23.) The question is not, therefore, whether one can conceive of a treaty being concluded in such a spirit and with such results but whether the Mandate was of this character.
134 Striking examples are also to be found in the Constitution of the International Labour Organisation, in the various conventions which the Organisation has brought into effect, and in operations under those treaty provisions. It will be remembered that the Constitution of the International Labour Organisation, like the Covenant of the League, also formed part of the Treaty of Versailles. The Preamble recites:
“Whereas the League of Nations has for its object the establishment of universal peace, and such a peace can be established only if if is based on social justice;
And whereas conditions of labour exist involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled…
Whereas also the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries…
135 Article 411 (later renumbered Article 26) of the Constitution is a broad recognition of the legal interest which all States, Members of the Organisation, have in the maintenance of labour standards and in the welfare of workers. The Article povides:
Article 423 of the Constitution provides:
1. “Any question or dispute relating to the interpretation of this Part of the present Treaty or of any subsequent convention concluded by the Members in pursuance of the provisions of this Part of the present Treaty shall be referred for decision to the Permanent Court of International Justice.” (See in general Jenks, International Protection of Trade Union Freedom, pp. 157–161.)
136 Acting on the basis of Article 26 (to use the numbering of the amended text) of the Constitution, the Republic of Ghana sent a communication to the Director-General of I.L.O. on 24 February 1961, in which it stated:
“The Republic of Ghana is not satisfied that Portugal is securing the effective observance in her African territories of Mozambique, Angola and Guinea of Convention No. 105, [Abolition of Forced Labour Convention, 1957] which both Portugal and the Republic of Ghana have ratified.
Accordingly, the Republic of Ghana requests that the Governing Body of the I.L.O. take appropriate steps, for example, by setting up a Commission of Inquiry to consider this complaint and to report thereon.”
The Governing Body of the I.L.O. on 10 March 1961, approved the report of its Officers in regard to the procedure which included the creation of a Commission of Inquiry. The judicial nature of the inquiry is indicated by the composition of the Commission: the Chairman was a Member of the Permanent Court of Arbitration, another Member was a former judge of the International Court of Justice and had previously been President of the High Court of Justice in his own country, and the third Member was the First President of the Supreme Court of another country. Further, the Commission in its report said:
“The Governing Body in appointing the Commission placed special emphasis on the judicial nature of the task entrusted to it, indicated its desire for ‘an objective evaluation’ of the contentions submitted by ‘an impartial body’ and required the members of the Commission before taking up their functions to make a solemn declaration in terms corresponding to those of the declaration made by Judges of the International Court of Justice.”
137 The Commission also noted in its report that if its findings or recommendations were not accepted by both governments, either one of them might refer the case to the International Court of Justice under Article 29 of the Constitution of the I.L.O. (See International Labour Office Official Bulletin, Volume XLV, No. 2, Supplement II, April 1962, Report of the Commission Appointed under Article 26 of the Constitution of the International Labour Organisation to Examine the Complaint filed by the Government of Ghana concerning the Observance by the Government of Portugal of the Abolition of Forced Labour Convention, 1957 (No. 105).)
138 The fact which this case establishes is that a State may have a legal interest in the observance, in the territories of another State, of general welfare treaty provisions and that it may assert such interest without alleging any impact upon its own nationals or its direct so-called tangible or material interests. The operation of the International Labour Organisation further indicates that disagreements over the observance of general welfare provisions may be the subject of judicial investigation and of ultimate resort to this Court. Although, in the case cited, the special procedure of a Commission of Inquiry was utilized, the basic situation of a difference of opinion concerning the application of a treaty provision on the general welfare of the inhabitants might perfectly well be the subject of negotiation between two States.
139 Although it has been asserted that disputes concerning the fulfilment of the requirements stated in paragraph 2 of Article 2 of the Mandate for South West Africa would be difficult to settle by negotiation, there is no reason in logic or in experience why this should be true. Certainly courts can determine and have determined whether particular laws or actions comply with general broad criteria such as “due process”, “equal protection” and “religious freedom”. The Supreme Court of the United States is able to determine what measures are or are not compatible with religious freedom (Reynolds v. United States (1879) 98 U.S. 244; Engel et al. v. Vitale (1962) 370 U.S. 421); or what is “the liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people”. (West Coast Hotel Co. v. Parrish (1937) 300 U.S. 379, 391.) So too, bilateral commercial treaties may involve negotiable disputes concerning what measures affecting liberty of conscience and worship are “necessary to protect the public health, morals and safety”. (See Wilson, United States Commercial Treaties and International Law (1960), p. 271.) There is no reason why this Court should be unable to determine whether various laws and regulations promote the “material and moral well-being and the social progress of the inhabitants” of the mandated territory.
140 If courts can pass on such questions, there is no reason why two governments should not discuss them (and such discussion would constitute a negotiation) and reach agreement that the measures were improper; or that the deficiencies alleged to exist were not established; or failing agreement, resort to this Court.
In the light of the foregoing, and in the light of the familiar history of the establishment of the Mandates System, it is not surprising to find that in 1920 it was the intention of States to recognize and to provide for a “legal” interest of States in questions which did not directly touch their “material” interests or those of their nationals. That was what was done in defining the terms of the Mandates.
The Mandates System was one of at least four great manifestations in 1919–1920 of the recognition of the interest of all States in matters happening in any quarter of the globe. The first manifestation was in Article 11 of the Covenant which recognized—as the phrase was later used—that peace was indivisible. The second manifestation was in the recognition of the interest of the international community in the protection of minorities. As provided in Article 69 of the Treaty of St. Germain with Austria (prototype for other minority treaties): “Austria agrees that the stipulations in the foregoing Articles of this Section, so far as they affect persons belonging to racial, religious or linguistic minorities, constitute obligations of international concern…” The third manifestation was in the recognition in the Constitution of the International Labour Organisation (just quoted) of the interest which all States have in “humane conditions of labour” in all other States. The fourth manifestation is in Article 22 of the Covenant recognizing the “sacred trust of civilization” in promoting the well-being and development of peoples not yet able to stand by themselves.
141 In the minorities treaties, in the Constitution of the Labour Organisation and in the Mandates, there were provisions for reference to the Permanent Court of International Justice. In each case the States entitled to invoke the jurisdiction were designated by a description; in no instance was the class one of unchanging composition. In connection with the minorities treaties, the procedural or enforcement rights were delegated to a representative group; both the permanent members and the changing non-permanent members of the Council of the League had the right to resort to the Court. In the International Labour Organisation the Members of the I.L.O. had the right and in the mandates the Members of the League had the right. The text itself of the minorities treaties recognized that disputes arising out of the treaty might relate to questions of either law or fact. In the Constitution of the International Labour Organisation the jurisdictional clause refers to “any question or dispute relating to the interpretation………”. As the Ghana-Portugal case just cited shows, the dispute might involve either facts or law or both. In the mandates, the reference is to “any dispute whatever … relating to the interpretation or the application…”. Clearly this provision also must embrace both issues of law and issues of fact. Article 50 of the Statute gives this Court ample powers to deal with questions of fact.
142 In no one of the three examples—minorities, labour, mandates—was it necessary for a State invoking the jurisdiction of the Court to allege that it had a direct “material” interest, either for itself or for its nationals. It has been well said:
“States conclude multilateral treaties not only in order to secure for themselves concrete mutual advantages in the form of a tangible give and take, but also in order to protect general interests of an economic, political or humanitarian nature, by means of obligations the uniformity and general observance of which are of the essence of the agreement. The interdependence of international relations frequently results in States having a vital interest in the maintenance of certain rules and principles, although a modification or breach of these principles in any particular single case is not likely to affect adversely some of them at all or at least not in the same degree…” (Note by “H. L.” in 1935 British Yearbook of International Law, p. 165.)
143 At the first session of the Assembly of the League, the representative of Sweden said:
“People have asked me why we small nations in the North seem to be so interested in this Article 22. It may be because of its guaranteeing freedom of trade with the Colonies. Yes, of course. We think freedom of trade to be a good thing and monopolies a bad thing from our commercial point of view. But I know that I have a right to say, and I am proud to state, that this is not for us the essential thing. No. To establish a world-wide culture, to preserve a lasting peace—such are the reasons for our peoples' interest in Article 22. Have we not shown such moral interest for the natives, for instance, of Africa?” (Thirtieth Plenary Meeting, 18 December 1920, pp. 716717.)
144 The conviction registered in the peace treaties at the close of World War I in regard to minorities, labour, and dependent peoples, was that just as peace was indivisible, so too was the welfare of mankind. Those responsible for the insertion of this principle in the Peace Treaties were giving international application to the philosophy that
“No man is an Island, entire of itself; every man is a piece of the Continent, a part of the main.
Any man's death diminishes me, because I am involved in Mankind…”
145 The foregoing interpretation of Article 7 is supported by the history of the so-called Tanganyika clause. It will be remembered that this clause, which constitutes the second paragraph of Article 13 of the British Mandate for East Africa, does not appear in the final text of any other mandate. It was originally proposed in the sessions of the Milner Commission in London in the summer of 1919 as a clause to be inserted in all B Mandates. Following the general jurisdictional paragraph which appears in identical terms in paragraph 2 of Article 7 of the Mandate for South West Africa, the Tanganyika clause goes on to provide that: “States Members of the League of Nations may likewise bring any claims on behalf of their nationals for infractions of their rights under this mandate before the said Court for decision”. When the Belgian and British Governments first agreed that a portion of German East Africa should be assigned to Belgium as a Mandate, the Tanganyika clause was included in the draft of the Belgian Mandate. Subsequently, it was dropped. In 1925, at the 6th Session of the Permanent Mandates Commission, M. Rappard thought that its insertion in the British East African Mandate was accidental but Sir Frederick Lugard said that the British Government did not believe that is could be so described.
146 Aside from the various interpretations or comments on this clause in the Mavrommatis case, it must be concluded that paragraph 2 of Article 7 of the Mandate for South West Africa, which is identical with the first paragraph of the jurisdictional article in the East African Mandate, must mean something different from, or more than, what is meant by the Tanganyika clause. The paragraph in Article 7 of the South West Africa Mandate may include claims on behalf of citizens but the Court is not required to decide that point now. The paragraph must include something other than or in addition to the claims of nationals or else the East African Mandate would have omitted paragraph 1 because paragraph 2 would have covered the field.
147 The language of paragraph 2 of Article 7 of the South West Africa Mandate is very broad indeed and there is no evidence that it is limited to matters in which other States might have a “public” concern, as for example the interest of a neighbouring State in the control of the traffic in slaves, arms, or liquors. Even if one considered it necessary to identify some, such regional interest of this kind, the regional interest of the Applicants cannot be gainsaid. Although under the Labour Conventions no direct material interest had to be established, the interest of Ghana in the question of forced labour in Angola, etc., can be considered comparable to the interest of Applicants in the conditions of the indigenous inhabitants in South West Africa.
148 Bearing in mind the absence of the open-door clauses in the C Mandates and the resulting restricted category of what might be called direct, material interests of other States in the application of the Mandate, why should the jurisdictional clause (i.e. Article 7), if it was intended to apply only to these restricted categories, have used the sweeping phrase: “any dispute whatever ……… relating to the interpretation or the application of the provisions of the Mandate”?
149 Is it possible to interpret the words “the provisions“ as meaning only “some of the provisions”?
150 It is impossible to escape the conclusion that paragraph 2 of Article 7 of the South West Africa Mandate was intended to recognize and to protect the general interests of Members of the international community in the Mandates System just as somewhat comparable clauses recognize this broad interest in the minority treaties, in the Constitution of the International Labour Organisation and, as more recently, in the Genocide Treaty and in some of the trusteeship agreements concluded under the United Nations. When the Mandate treaties were concluded, it was disputes over these broad interests which were contemplated. (Cf. U.S. Nationals in Morocco, I.C.J. Reports 1952, at p. 189.)
151 It has been urged that those who concluded the Mandate agreements could not have intended the meaning of Article 7 (2) which has just been stated, because they would have wished to avoid the confusion and conflict which it might have entailed between the respective roles of the Council of the League and the Permanent Mandates Commission on the one hand, and the Permanent Court of International Justice on the other hand. The Permanent Court disposed of a comparable objection in connection with the Minorities treaties which contained provisions both for invoking action by the Council and for submitting a case to the adjudication of the Court. (Settlers of German Origin, Series B, No. 6 (1923), pp. 21–23; Upper Silesia (Minority Schools), Series A, No. 15 (1928), pp. 19–25.) And to the same general effect, although with certain differences of treaty terms, Statute of the Memel Territory, Series A/B, No. 47 (1932), pp. 248–249.
152 Reference has been made to Article 62 of the Statute of the Court to establish the point that the Court is competent to pass only on an interest of a legal nature”. It is not demonstrated that Article 62 establishes a norm which must be used in interpreting Article 36 which says: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” The criteria for intervention may well be different from those for original submission. In The Wimbledon, Poland at first claimed the right to intervene under Article 62, but subsequently abandoned that ground and claimed a right under Article 63 as a party to the treaty in question. The Permanent Court said:
“The attitude thus adopted renders it unnecessary for the Court to consider and satisfy itself whether Poland's intervention in the suit before it is justified by an interest of a legal nature, within the meaning of Article 62 of the Statute.” (Series A, No. 1, p. 13.)
The Court did not say that the interests under Articles 62 and 63 were identical on the ground that both must involve legal interests of a particular kind. To take a clear case, when the minorities treaties or the labour conventions provide for reference to the Court of differences of fact or law arising under the treaties, the Court is not entitled to disregard the plain terms of Article 36 of the Statute and to assert that the Applicant State may not submit the case because the Court does not think that general interests in the welfare of minorities or of labour are the kinds of interests on which an intervention under Article 62 could be based. The same reasoning applies to the Mandates. Moreover, it may be recalled that the Permanent Court held that States can ask the Court “to give an abstract interpretation of a treaty”.(Polish Upper Silesia, Series A, No. 7, pp. 18–19.) In my opinion, however, the short answer to this argument is that, for the reasons which have been stated, the general interest in the operation of the mandates was a legal interest.
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153 The other aspect of a “dispute” which calls for examination is whether it was one which, in the words of Article 7, “cannot be settled by negotiation”. As in other respects, this aspect is to be determined as of the date of the filing of the Applications in the instant case, that is 4 November 1960.
154 Although frequently omitted in clauses providing for adjudication on the interpretation or application of a particular convention, and although not mentioned in Article 36 of the Statute of the Court, the provision is a familiar one. The phraseology varies; some clauses speak of settling the dispute “by diplomacy” which in these days must be interpreted to include what has been called “parliamentary diplomacy” by which is meant the negotiation of solutions of international problems within the framework and through the procedures of an organized body acting under established rules of procedure, such as the General Assembly of the United Nations. The General Assembly, and indeed the whole United Nations complex with its permanent missions and its special committees, are today a part of the normal processes of diplomacy, that is of negotiation.
155 Of course negotiation at or by conference is not new in the history of diplomacy. One may recall the negotiations among “the Big Four” at the Paris Peace Conference at the end of World War I, the negotiations on problems of the Far East at the 1921–1922 Washington Conference on the Limitation of Armaments, and even the many negotiations which went on at Vienna in 1815. But in the earlier conferences there was usually no question of negotiating with the conference as a body although examples are not lacking where some of the smaller Powers did indeed have to negotiate with the Great Powers acting corporately as the Concert of Europe.
154 Traditional diplomacy was also familiar with devices for carrying on negotiations without the actual participation of the disputing parties, as for example by the use of good offices or mediation. It will be recalled that in the present era of the United Nations, that Organization utilized a Mediator in Palestine and Good Offices in Indonesia.
156 It must surely be said that negotiations on many subjects have taken place at and through the instrumentality of the United Nations. There have certainly been negotiations in the United Nations over a number of years concerning the Palestinian Arab Refugees although the States principally concerned have not met together separately to discuss these issues. Numerous other examples could be cited as for example the negotiations in the General Assembly concerning the eventual federation of Eritrea and Ethiopia. The problems of disarmament have been the subject of negotiations through direct diplomatic channels whether bipartite or multipartite; through conferences around a table of ten or more delegations; and through the regular debating procedures in the Committees and in the plenary sessions of the United Nations General Assembly. (I leave aside negotiations in the couloirs.)
157 The question of the authority of the General Assembly under Chapter XI of the Charter to exercise supervision of non-self-governing territories was negotiated in the General Assembly and its committees over a period of years. So likewise the questions of the obligation of the Mandatory to negotiate a trusteeship agreement for South West Africa has been itself the subject of negotiations in the General Assembly. The existing trusteeship agreements were indeed negotiated in the General Assembly in a way in which the Mandate agreements were never negotiated in the Council or in the Assembly of the League.
158 I have already dealt with the argument that the nature of the issues raised in the Memorials in this case makes them unsusceptible to negotiation in any forum.
159 Granted that there have been negotiations, have they demonstrated that the dispute “cannot be settled by negotiation”? The phrase “cannot be settled” clearly must mean something more than “has not been settled”. In the Mavrommatis case, the Permanent Court said:
“The Court realizes to the full the importance of the rule laying down that only disputes which cannot be settled by negotiation should be brought before it. It recognises, in fact, that before a dispute can be made the subject of an action at law, its subject matter should have been clearly defined by means of diplomatic negotiations. Nevertheless, in applying this rule, the Court cannot disregard, amongst other considerations, the views of the States concerned, who are in the best position to judge as to political reasons which may prevent the settlement of a given dispute by diplomatic negotiation.” (Series A, No. 2 (1924), at p. 15.)
160 There certainly is no absolute litmus test which would enable a Court to assert in all situations at just what moment settlement by negotiation becomes impossible. To me it seems clear on the face of the record that the condition is fulfilled in this case. I know of nothing in the record which would lead the Court to conclude that if either of the Applicants entered into direct diplomatic negotiations with Respondent on the specific issues which have been debated over the years in the General Assembly and which have been alleged in the Memorials, settlement could be reached on all of the points which, in the allegations of Applicants, relate to the interpretation or application of the Mandate. If there is one point of disagreement between Applicants or either of them on the one hand and Respondent on the other, which, it is fair to say. “cannot be settled by negotiation”, then this requisite quality of the dispute exists. In this respect States are not eternally bound by the old adage: “If at first you don't succeed, try, try again.”
161 It is not persuasive to assert that the negotiators on one side or the other have been stubborn, or unreasonable, or adamant. Such allegations are common in international negotiations and are often sincerely believed. One cannot take the position that the dispute can be settled by negotiation because it would be if one side wholly gave in to the contentions of the other. As the Permanent Court said, the Court cannot disregard “the views of the States concerned, who are in the best position to judge as to political reasons which may prevent the settlement of a given dispute by diplomatic negotiation”
162 In this, as in other cases, the important point is whether the Respondent was made aware of the complaints of Applicants, had an opportunity to state its point of view, did state it, and that Applicants were not persuaded but still maintained their positions. As was said by Judge Hudson in his dissenting opinion in the Electricity Company case: “What is essential is that prior to the filing of an application by one party bringing the dispute before the Court, the other party must have been given the opportunity to formulate and to express its views on the subject of the dispute.” (Series A/B, No. 77, 1939, p. 132.) Certainly this test is met in the present cases. It is true that Judge Hudson, speaking with reference to the facts in the case before him, continued to say: “Only diplomatic negotiations will have afforded such an opportunity. The precise point at which it may properly be said that the negotiations instituted cannot result in a settlement of the dispute may have to depend, as the Court has also recognized [citing Mavrommatis] upon the ‘views of the States concerned’.” Judge Hudson was not considering the modern operations of diplomacy in the United Nations context and his remarks in 1939 in the case before him cannot be considered to negate the conclusions reached herein.
163 The nature of this modern conference or parliamentary diplomacy may tend to exaggerate the separate individuality of the international organization or one of its organs. The problem existed in political matters in the days of the League of Nations, when it could at times be observed that the Council of the League might be used as a kind of whipping boy in the sense that an influential Member of the Council might plead that there was nothing it could do because the “Council” had not acted, ignoring the fact that the Member in question had not taken steps to activate the Council. Similar phenomena have been remarked in the era of the United Nations. An international organization may indeed be something more than the sum of its parts, but, to change the metaphor, one must not overlook the trees when one sees the forest.
164 There are numerous instances in the history of the United Nations where it might be said that certain States which are in a minority in the voting on some action to be taken by the Organization, have a “dispute” with the Organization, but it cannot be doubted that in many of these cases the States in the minority also have a “dispute” with certain States in the majority and that the latter States can easily be identified. It might be invidious, and it is unnecessary to mention specific cases which illustrate the point. It is not maintained that in every instance in which there is a division of votes, every State voting in the majority has a “dispute“ with every State voting in the minority. It is maintained that in the instant cases, on the record, there is a dispute between Applicants and Respondent.
(Signed)Philip C. Jessup.
Separate Opinion of Sir Louis Mbanefo
Sir Louis Mbanefo
1 I agree generally with the reasons given in the Judgment of the Court, but I feel that a great deal of the argument on the first three Preliminary Objections in the Judgment goes to the merit of the case. The Court is concerned essentially at this stage with the question of jurisdiction. The way in which the claims of the Applicants and the Preliminary Objections of the Respondent are framed make it difficult for the Court to avoid touching on the merits of the case. But that notwithstanding, I feel that emphasis should be on a line of reasoning that deals essentially with the issue of jurisdiction; and the opinion which I now give is intended to supplement the reasoning of the Court on the First, Second and Third Preliminary Objections.