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[p.319]
The Court,
composed as above,
delivers the following Judgment:
On 4 November 1960 the Registrar received two Applications, each instituting
proceedings against the Government of the Union of South Africa relating to
"the continued existence of the Mandate for South West Africa and the duties
and performance of the Union, as Mandatory, thereunder." One of these
Applications was submitted on behalf of the Government of Ethiopia; it was
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.
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.
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.
Time-limits for the filing of the Memorial of Ethiopia and the Memorial of
Liberia, and for the filing of the Counter-Memorials of the Union of South
Africa, were fixed by two Orders of 13 January 1961. By letters dated 28
March 1961, the Agent of the Government of Ethiopia, on the one hand,
requested that a time-limit be fixed within which his Government might
notify its intention to exercise the right to choose a Judge ad hoc and
might indicate the name of the person chosen; and the Agent of the
Government of Liberia, on the other hand, made the same request in respect
of that Government. Seised of these two requests, and having taken
cognizance of the two Memorials which had been filed on 15 April 1961, the
Court, considering that the two applicant Governments were in the same
interest and were therefore, so far as the choice of a Judge ad hoc was
concerned, to be reckoned as one party only, by Order of 20 May 1961, joined
the proceedings in the two cases, and fixed the time-limit as requested.
On 30 November 1961, within the time-limit fixed for the presentation of its
first pleading, the Government of South Africa filed [p 322] 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 I 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.
The statement having been presented within the prescribed time-limit, the
cases became ready for hearing on I March 1962 in respect of the Preliminary
Objections.
Pursuant to Article 31, paragraph 3, of the Statute, and the Order of the
Court of 20 May 1961, the Governments of Ethiopia and Liberia, acting in
concert, chose Sir Louis Mbanefo, Chief Justice of the Eastern Region of
Nigeria, to sit as Judge ad hoc. In accordance with the same Article, the
Government of South Africa chose the Honourable J. T. van Wyk, Judge of the
Appellate Division of the Supreme Court of South Africa, to sit as Judge ad
hoc.
On 2-5, 8-11, 15-17, and 19 and 22 October 1962, hearings were held in the
course of which the Court heard the oral arguments and, replies of Mr.
verLoren van Themaat, Agent, Mr. de Villiers and Mr. Muller, Counsel, on
behalf of the Government of South Africa; and of the Honourable Ernest A.
Gross, Agent, and the Honourable Edward R. Moore, Counsel, on behalf of the
Governments of Ethiopia and Liberia.
In the written proceedings, the following Submissions were presented by the
Parties:
On behalf of the Governments of Ethiopia and Liberia,
In the Applications:
"May it please the Court, to adjudge and declare, whether the Government of
the Union of South Africa is present or absent and after such time
limitations as the Court may see fit to fix, that,
A. South West Africa is a Territory under the 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 [p 323] 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 practiced 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 [p 324] 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";
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 practiced 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 [p 325]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 [p 326] attempt is in violation of
its duties as stated in Article 7 of the Mandate and Article 22 of the
Covenant; and that the consent of the United Nations is a necessary
prerequisite and condition precedent to attempts on the part of the Union
directly or indirectly to modify the terms of the Mandate.
The Applicant reserves the right to request the Court to declare and adjudge
in respect to events which may occur subsequent to the date this Memorial is
filed, including any event by which the Union's juridical and constitutional
relationship to Her Britannic Majesty undergoes any substantial
modification.
May it also please the Court to adjudge and declare whatever else it may
deem fit and proper in regard to this Memorial, and to make all necessary
awards and orders, including an award of costs, to effectuate its
determinations."
On behalf of the Government of South Africa,
In the Preliminary Objections:
"For all or any of the reasons set out in these Preliminary 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."
On behalf of the Governments of Ethiopia and Liberia,
In the written Observations on the Preliminary Objections:
"May it please this Honourable Court to dismiss the Preliminary Objections
raised by the Government of the Republic of South Africa in the South West
Africa Cases, and to adjudge and declare that the Court has jurisdiction to
hear and adjudicate the questions of law and fact raised in the Applications
and Memorials of the Governments of Ethiopia and Liberia in these Cases."
In the oral proceedings the following Submissions were presented by the
Parties:
On behalf of the Government of South Africa,
at the hearing on II October 1962:
"For all or any one or more of the reasons set out in its written and oral
statements, the Government of the Republic of South Africa submits that the
Governments of Ethiopia and Liberia have no locus standi in these
contentious proceedings, and that the Court has no jurisdiction to hear or
adjudicate upon the questions of law and fact raised in the Applications and
Memorials, more particularly because:
Firstly, by reason of the dissolution of the League of Nations, the Mandate
for South West Africa is no longer a 'treaty or con-[p 327]vention in force'
within the meaning of Article 37 of the Statute of the Court, this
submission being advanced
(a) with respect to the said Mandate Agreement as a whole, including Article
7 thereof, and
(b) in any event, with respect to Article 7 itself;
Secondly, neither the Government of Ethiopia nor the 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."
On behalf of the Governments of Ethiopia and Liberia,
at the hearing on 17 October 1962:
"May it please the Court to dismiss the Preliminary Objections raised by the
Government of the Republic of South Africa in the South West Africa cases,
and to adjudge and declare that the Court has jurisdiction to hear and
adjudicate the questions of law and fact raised in the Applications and
Memorials of the Governments of Ethiopia and Liberia in these cases."
Questions having been put to the Parties by two Judges, the Court decided
that the answers to them should be given after the oral rejoinder, first on
behalf of the Republic of South Africa and then on behalf of Ethiopia and
Liberia; and that, in the same order, the Agents should be called upon to
indicate whether those questions and the answers given to them had led them
to amend their respective submissions and, if so, to present the amended
submissions.
Availing themselves of this decision, the Agents of the Parties gave their
answers on 22 October 1962. The Agent of the Republic of South Africa
amended the Submissions which he had read at the hearing on II 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." [p 328]
At the hearing on 22 October 1962, the Agent of Ethiopia and Liberia stated
that he did not intend to amend his Submissions.
***
To found the jurisdiction of the Court in the proceedings, the Applicants,
having regard to Article 80, paragraph 1, of the Charter of the United
Nations, relied on Article 7 of the Mandate of 17 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.
Before undertaking this task, however, the Court finds it necessary to
decide a preliminary question relating to the existence of the dispute which
is the subject of the Applications. The view has been advanced that if no
dispute within the purview of Article 7 of the Mandate and Articles 36 and
37 of the Statute of the Court exists in fact, a conclusion of incompetence
or fin de non-recevoir must follow.
It is to be noted that this preliminary question really centres on the point
as to the existence of a dispute between the Applicants and the Respondent,
irrespective of the nature and subject of the dispute laid before the Court
in the present case. In the case of the Mavrommatis Palestine Concessions
(P.C.I.J., Series A, No. 2, p. II) 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
non-existence. Nor is it adequate to show that the interests of the two
parties to such a case are in conflict. It must be shown that the claim of
one party is positively opposed by the other. Tested by this criterion there
can be no doubt about the existence of a dispute between the Parties before
the Court, since it is clearly constituted by their opposing attitudes
relating to the performance of the obligations of the Mandate by the
Respondent as Mandatory.
***
Inasmuch as the grounds on which the Preliminary Objections rely are
generally connected with the interpretation of the Mandate [p 329] Agreement
for South West Africa, it is also necessary at the outset to give a brief
account of the origin, nature and characteristics of the Mandates System
established by the Covenant of the League of Nations.
Under Article 119 of the Treaty of Versailles of 28 June 1919, Germany
renounced in favour of the Principal Allied and Associated Powers all her
rights and titles over her overseas possessions. The said Powers, shortly
before the signature of the Treaty of Peace, agreed to allocate them as
Mandates to certain Allied States which had already occupied them. The terms
of all the "C" Mandates were drafted by a Committee of the Supreme Council
of the Peace Conference and approved by the representatives of the Principal
Allied and Associated Powers in the autumn of 1919, with one reservation
which was subsequently withdrawn. All these actions were taken before the
Covenant took effect and before the League of Nations was established and
started functioning in January 1920. The terms of each Mandate were
subsequently defined and confirmed by the Council in conformity with Article
22 of the Covenant.
The essential principles of the Mandates System consist chiefly in 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
civilization" laid upon the League as an organized international community
and upon its Member States. This system is dedicated to the avowed object of
promoting the well-being and development of the peoples concerned and is
fortified by setting up safeguards for the protection of their rights.
These features are inherent in the Mandates System as conceived by its
authors and as entrusted to the respective organs of the League and the
Member States for application. The rights of the Mandatory in relation to
the mandated territory and the inhabitants 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.
***
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.
The issue of the jurisdiction of the Court was raised by the Respondent in
the form of four Preliminary Objections. Its sub-[p 330]missions 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.
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."
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."
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 [p 331] referred to therein was effected by a decision of the
Principal Allied and Associated Powers including Great Britain taken on 7
May 1919 to confer a Mandate for the Territory on His Britannic Majesty and
by the confirmation of its acceptance on 9 May 1919 by the Union of South
Africa. The second and third paragraphs of the Preamble record these facts.
It is further stated therein that "His Britannic Majesty, for and on behalf
of the Government of the Union of South Africa ... has undertaken to
exercise it on behalf of the League of Nations in accordance with the
following provisions". These "provisions" were formulated "in the following
terms".
The draft Mandate containing the explicit terms was presented to the Council
of the League in December 1920 and, with a few changes, was confirmed on 17
December 1920. The fourth and final paragraph of the Preamble recites the
provisions of Article 22, paragraph 8, of the Covenant, and then "confirming
the said Mandate, defines its terms as follows: ...".
Thus it can be seen from what has been stated above that this Mandate, like
practically 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.
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.
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 [p 332] 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.
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 13 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.
***
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 [p 333] West Africa being of an objective character still
exist, while those rights and obligations relating to administrative
supervision by the League and submission to the Permanent Court of
International Justice, being of a contractual character, have necessarily
become extinct on the dissolution of the League of Nations which involved as
a consequence the ending of membership of the League, leaving only one party
to the contract and resulting in the total extinction of the contractual
relationship.
The Respondent further argues that the casualties arising from the demise of
the League of Nations are not therefore confined to the provisions relating
to supervision by the League over the Mandate but include Article 7 by which
the Respondent agreed to submit to the jurisdiction of the Permanent Court
of International Justice in any dispute whatever between it as Mandatory and
another Member of the League of Nations relating to the 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.
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 [p 333] 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.
That the League of Nations in ending its own existence did not terminate the
Mandates but that it definitely intended to continue them by its resolution
of 18 April 1946 will be seen later when the Court states its views as to
the true effect of the League's final act of dissolution on the Mandates.
What is relevant to the issue under consideration is the finding of the
Court in the same Advisory Opinion on the effect of the dissolution of the
League of Nations on Article 7 of the Mandate. After recalling the
provisions of this Article, the Court stated:
"Having regard to Article 37 of the Statute of the International Court of
Justice, and Article 80, paragraph 1, of the Charter, the Court is of
opinion that this clause in the Mandate is still in force and that,
therefore, the Union of South Africa is under an obligation to accept the
compulsory jurisdiction of the Court according to those provisions." (Ibid.,
page 138.)
It is also to be recalled that while the Court was divided on the other
points involved in the questions put to it for an Advisory Opinion, it was
unanimous on the finding that Article 7 of the Mandate relating to the
obligation of the Union of South Africa to submit to the compulsory
jurisdiction of this Court is still "in force".
The unanimous holding of the Court in 1950 on the survival and continuing
effect of Article 7 of the Mandate, continues to reflect the Court's opinion
today. Nothing has since occurred which would warrant the Court
reconsidering it. Al1 important facts were stated or referred to in the
proceedings before the Court in 1950.
The Court finds that, though the League of Nations and the Permanent Court
of International Justice have both ceased to exist, the obligation of the
Respondent to submit to the 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 IIO 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, [p 335] 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 is so facto parties to the Statute of the International Court of
Justice". By the effect of these provisions the Respondent has bound itself
since 7 November 1945, when the League of Nations and the Permanent Court
were still in existence and when therefore Article 7 of the Mandate was also
in full force, to accept the compulsory jurisdiction of this Court in lieu
of that of the Permanent Court, to which it had originally agreed to submit
under Article 7 of the Mandate.
This transferred obligation was voluntarily assumed by the Respondent when
joining the United Nations. There could be no question of lack of consent on
the part of the Respondent as regards this transfer to this Court of the
Respondent's obligation under Article 7 of the Mandate to submit to the
compulsory jurisdiction of the Permanent Court. The validity of Article 7,
in the Court's view, was not affected by the dissolution of the League, just
as the Mandate as a whole is still in force for the reasons stated above.
***
The Second Objection of the Respondent consists mainly of an argument which
has been advanced in support of the First 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."
It is contended that since al1 Member States of the League necessarily lost
their membership and its accompanying rights when the League itself ceased
to exist on l9 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. [p 336]
This contention is claimed to be based upon the natural and ordinary meaning
of the words employed in the provision. But this rule of interpretation is
not an absolute one. Where such a method of interpretation results in a
meaning incompatible with the spirit, purpose and context of the clause or
instrument in which the words are contained, no reliance can be validly
placed on it.
In the first place, judicial protection of the sacred trust in each Mandate
was an essential feature of the Mandates System. The essence of this system,
as conceived by its authors and embodied in Article 22 of the Covenant of
the League of Nations, consisted, as stated earlier, of two features: a
Mandate conferred upon a Power as "a sacred trust of civilization" and the
"securities for the performance of this trust". While the faithful discharge
of the trust was assigned to the Mandatory Power alone, the duty and the
right of ensuring the performance of this trust were given to the League
with its Council, the Assembly, the Permanent Mandates Commission and all
its Members within the limits of their respective authority, power and
functions, as constituting administrative supervision, and the Permanent
Court was to adjudicate and determine any dispute within the meaning of
Article 7 of the Mandate. The administrative supervision by the League
constituted a normal security to ensure full performance by the Mandatory of
the "sacred trust" toward the inhabitants of the mandated territory, but the
specially assigned role of the Court was even more essential, since it was
to serve as the final bulwark of protection by recourse to the Court against
possible abuse or breaches of the Mandate.
The raison d'�tre of this essential provision in the Mandate is obvious.
Without this additional security the supervision by the League and its
Members could not be effective in the last resort. For example, under
Article 6 of the Mandate for South West Africa:
"The Mandatory shall make to the Council of the League of Nations an annual
report to the satisfaction of the Council, containing full information with
regard to the territory, and indicating the measures taken to carry out the
obligations assumed under Articles 2, 3, 4 and 5."
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, [p 337]
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 I of
Article 7, an important dispute would arise between it and the Council of
the League.
Under the unanimity rule (Articles 4 and 5 of the Covenant), the Council
could not impose its own view on the Mandatory. It could of course ask for
an advisory opinion of the Permanent Court but that opinion would not have
binding force, and the Mandatory could continue to turn a deaf ear to the
Council's admonitions. In such an event the only course left to defend the
interests of the inhabitants in order to protect the sacred trust would be
to obtain an adjudication by the Court on the matter connected with the
interpretation or the application of the provisions of the Mandate. But
neither the Council nor the League was entitled to appear before the Court.
The only effective recourse for protection of the sacred trust would be for
a Member or Members of the League to invoke Article 7 and bring the dispute
as also one between them and the Mandatory to the Permanent Court for
adjudication. It was for this all-important purpose that the provision was
couched in broad terms embracing "any dispute whatever ... between the
Mandatory and another Member of the League of Nations relating to the
interpretation or the application of the provisions of the Mandate ... if it
cannot be settled by negotiation". It is thus seen what an essential part
Article 7 was intended to play as one of the securities in the Mandates
System for the observance of the obligations by the Mandatory.
In the second place, besides the essentiality of judicial protection for the
sacred trust and for the rights of Member States under the Mandates, and the
lack of capacity on the part of the League or the Council to invoke such
protection, the right to implead the Mandatory Power before the Permanent
Court was specially and expressly [p 338] 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.
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.
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 [p 339] representatives
did not attach importance to the letter of the constitutional procedure.
Under the Covenant the role of the Council in the Mandates System was
preponderant. But the Council held no meeting to deal with the question of
what should be done with the Mandates after the League's dissolution.
Instead the Assembly by a resolution of 12 April 1946 attributed to itself
the responsibilities of the Council. The resolution reads :
"The Assembly, with the concurrence of all the Members of the Council which
are represented at its present session: Decides that, so far as required, it
will, during the present session, assume the functions falling within the
competence of the Council."
On the basis of this resolution, the Assembly also approved the end of the
Mandates for Syria, Lebanon and Trans-Jordan.
To provide for the situation certain to arise from the act of dissolution,
and to continue the Mandates on the basis of a sacred trust, prolonged
discussions were held both in the Assembly and in its First Committee to
find ways and means of meeting the 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 g 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",
he continues:
"In the meantime, the Union will continue to administer the territory
scrupulously in accordance with the obligations of the [p 340] 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.
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."
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 :
"to stress once more the fact that all territories under the mandate of his
Government would continue to be administered in the spirit of the Covenant
and of the Charter".[p 341]
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."
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.
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. [p 342]
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.
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
where 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.
For the reasons stated, the First and Second Objections must be dismissed.
***
The Third Preliminary Objection consists essentially of the proposition that
the dispute brought before the Court by the Appli-[p 343]cants is not a
dispute as envisaged in Article 7 of the Mandate� more particularly in that
the said conflict or disagreement does not affect any material interests of
the Applicant States or their nationals.
In support of this proposition, the Respondent contends that the word
"dispute" must be given its generally accepted meaning in a context of a
compulsory jurisdiction clause and that, when so interpreted, it means a
disagreement or conflict between the Mandatory and another Member of the
League concerning the legal rights and interests of such other Member in the
matter before the Court; that "the obligations imposed for the benefit of
the 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-�-vis the
Mandatory, have no legal right or interest in the observance by the
Mandatory of its duties to the inhabitants".
The question which calls for the Court's consideration is whether the
dispute is a "dispute" as envisaged in Article 7 of the Mandate and within
the meaning of Article 36 of the Statute of the Court.
The Respondent's contention runs counter to the natural and ordinary meaning
of the provisions of Article 7 of the Mandate, which mentions "any dispute
whatever" arising between the 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.
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 [p 344] 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 I. It was
embodied in the draft agreement among the Principal Allied and Associated
Powers and proposed to the Council of the League by the representative of
the United Kingdom as original Mandatory on behalf of South Africa, the
present Mandatory for South West Africa. The right to take legal action
conferred by Article 7 on Member States of the League of Nations is an
essential part of the Mandate itself and inseparable from its exercise.
Moreover, Article 7 reads: "The Mandatory agrees that...", so that there
could be no doubt about the scope and effect of the provision at the time of
its stipulation.
While Article 6 of the Mandate under consideration provides for
administrative supervision by the League, Article 7 in effect 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.
The foregoing considerations and reasons lead to the conclusion that the
present dispute is a dispute as envisaged in Article 7 of the Mandate and
that the Third Preliminary Objection must be dismissed.
***
The Court will now consider the Fourth and last Preliminary Objection raised
by the Respondent. In essence it consists of the proposition that if it is a
dispute within the meaning of Article 7, it is not one which cannot be
settled by negotiation with the 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?
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 [p 345] 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."
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.
It is immaterial and unnecessary to enquire what the different and opposing
views were which brought about the deadlock in the past negotiations in the
United Nations, since the present phase calls for determination of only the
question of jurisdiction. The fact that a deadlock was reached in the
collective negotiations in the past and the further fact that both the
written pleadings and oral arguments of the Parties in the present
proceedings have clearly confirmed the continuance of this deadlock, compel
a conclusion that no reasonable probability exists that further negotiations
would lead to a settlement.
In this respect it is relevant to cite a passage from the Judgment of the
Permanent Court in the case of the Mavrommatis Palestine Concessions
(P.C.I.J., Ser. A, No. 2, p. 13) which supports the view stated. The Court
said in respect of a similar objection advanced by the Respondent in that
case to the compulsory jurisdiction under Article 26 of the Palestine
Mandate, which corresponds to Article 7 of the Mandate for South West
Africa:
"The true value of this objection will readily be seen if it be 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 [p 346] 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."
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.
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.
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.
For the reasons stated above, the Fourth Objection like the preceding three
Objections is not well-founded and should also be dismissed. [p 347]
***
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.
For these reasons,
The Court,
by eight votes to seven,
finds that it has jurisdiction to adjudicate upon the merits of the dispute.
Done in English and in French, the English text being 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,
President.
(Signed) Garnier-Coignet,
Registrar.
Judge Spiropoulos makes the following declaration:
Although the interest of the Governments of Liberia and Ethiopia that the
Court should pass upon the violations by South Africa of the Mandate for
South West Africa alleged by those Governments is entirely comprehensible,
it is not possible for me to follow the reasoning of the Court which leads
it to hold that it has jurisdiction.
Can it readily be found that the Mandate is a "treaty or 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�[p 348] can be relied on by States none of which is a "Member
of the League of Nations", that organization no longer being in existence?
It appears to me that any attempt to give an affirmative answer to these
questions, and they are not the only ones which arise, must necessarily be
based on arguments which, from the standpoint of law, do not seem to me to
have sufficient weight.
In these circumstances it is not possible for me to concur in the Court's
conclusion. To be upheld, the Court's jurisdiction must be very clearly and
unequivocally established, and that does not seem to me to be the case here.
Judges Bustamante y Rivero and Jessup and Judge ad hoc Sir Louis Mbanefo
append to the Judgment of the Court statements of their Separate Opinions.
President Winiarski and Judge Basdevant append to the 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.
(Initialled) G.-C.
[p 349]
SEPARATE OPINION OF JUDGE BUSTAMANTE
[Translation]
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.
***
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 fulfillment of certain conditions. The oral proceedings being over, the
Court has to decide on the objections.
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
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, [p 350] 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 them FNl. 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.
---------------------------------------------------------------------------------------------------------------------FN1
Communiqu� of the Supreme Council of the Peace Conference, dated 6 May 1919.
A. Millot: Les Mandats internationaux, p. 36, �. Larose, Paris, 1924.
Official Journal of the League of Nations, June 1920.
---------------------------------------------------------------------------------------------------------------------
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
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 [p 351] to
fulfil its own destiny and aspire to political independence under the
protection and with the respect and assistance of the international
community FNl.
---------------------------------------------------------------------------------------------------------------------FN1
A. Millot, op. cit., pp.15 ff.
---------------------------------------------------------------------------------------------------------------------
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.
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.
It is in the light of this criterion that the constituent elements and
distinguishing features of the system of international mandates must, in my
view, be studied.
The elements of the international Mandate
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.[p 352]
The proposes 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.
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).
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.
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.
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.
The history of this preparatory period is quite conclusive.
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; [p 353]
(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.
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 Mandate FNl.
---------------------------------------------------------------------------------------------------------------------FN1
A. Millot, op. cit., pp. 36 and 55.
---------------------------------------------------------------------------------------------------------------------
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" FN2.) The Council
approved it with some non-essential changes FN3, which were never the
subject of reservations or complaints by either Great Britain or the Union
of South Africa.
---------------------------------------------------------------------------------------------------------------------
FN2 Photostat copy distributed to Judges of the Court by the Registry in
October 1962, containing the document received from the Secretariat of the
United Nations in Geneva entitled "Mandate for German South West
Africa-�Submitted for Approval (9596)".
FN3 A. Millot, op. cit., pp. 61.
---------------------------------------------------------------------------------------------------------------------
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
compromissary 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.
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 Man-[p 354]dated 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.
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.
The tutelary function of the League of Nations, of which the Council was the
organ to define and supervise the conditions of the Mandate, derives from
the provisions of Article 22, particularly paragraphs 1, 2, 7, 8 and 9.
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.
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 [p 355] 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".
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 compromissary 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.
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 [p 356] 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 Rights FN1. 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.
---------------------------------------------------------------------------------------------------------------------FN1
General Assembly-, Official Documents, 3rd Session, Resolutions, Part 1, 21
September-12 December 1948.
---------------------------------------------------------------------------------------------------------------------
Characteristic features of the international Mandate
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 ex-colonial 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.[p 357]
3. The function of the Mandatory is a responsibility rather than a right
(Article 22, paragraph z 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 z); 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 fulfillment 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 fulfillment 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 [p 358] 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 compromissary clause.
The Mandate Agreements
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 [p 359] 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.
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 [p 360] 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 Compromissary Clause
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 "compromissary 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 1921 FNl.
---------------------------------------------------------------------------------------------------------------------FN1
Fifth Annual Report of the Permanent Court of International Justice
(1928-1929), page 390. Collection of texts governing the jurisdiction of the
Court, P.C.I. J.. Series D, No. 6, page 18.
---------------------------------------------------------------------------------------------------------------------
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 expres-[p 361]sed 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.
From the foregoing considerations it may be concluded that the compromissary
clause, just as much as the rest of the agreement, is one of the major
provisions of the Mandate system.
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.
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.
The Mandate agreements which contain the compromissary 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.
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 [p 362]
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 compromissary 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 Leage of Nations and the new Trusteeship System of
the San Francisco Charter
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.
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.
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.
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 [p 363] the League of
Nations, as the tutelary body, raises an insurmountable obstacle to the
survival of the Mandate remains to be considered.
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.
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 I (a), 79, 80, 81 and 85. These Articles will be analysed
hereafter; what is relevant to my reasoning is [p 364] 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.
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 corres9onding 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.)
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.
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.
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. [p 365]
***
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.
As to the position of old Mandates in relation to the new Trusteeship System
under the Charter, Article 77, paragraph 1, sub-paragraph (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 I "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..."
In my opinion, this wording of paragraph 2, which is connected with that of
Articles 77 (para. I (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 [p 366] 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.
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 fact which was concluded at the time when the Charter was
signed by the Mandatory.
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 (4, 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)). [p 367]
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
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 �f the Statute of the International Court of
Justice, having regard to Article 80, paragraph 1, of the United Nations
Charter.
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."
The Statute of the International Court of Justice, of which the Applicants
and the Respondent are signatories, provides in Article 37 that:
"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." [p 368]
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."
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 compromissary 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.
From an examination of the content of the Applications, it may be seen that
the questions requiring definition are as follows:
1. Is the Mandate a convention or not ?
2. If yes, is it a convention in force?
3. If so, is Article 37 of the Statute of the Court applicable?
The reply to these questions will follow from the critical analysis which I
shall make of the Preliminary Objections presented by the Agent for the
Republic of South Africa.
The Preliminary Objections
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 compromissary clause contained in the Mandate agreement (Article 7)
does not fulfill the conditions required for validity by the special nature
of this clause.
4. The dispute which is the subject of the controversy does not fulfill the
conditions laid down in Article 7 of the Mandate agreement. [p 369]
5. Consequently, Article 37 of the Statute of the Court is not applicable.
The Court has no jurisdiction in this case.
First Preliminary Objection
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".
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 rg46, 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 I to 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 des 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 [p 370] Covenant assigned to the
Council of the League of Nations: all that was required was the prior
conclusion of a neu7 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 [p 371] 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
fulfill 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 [p 372] 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 exercised 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. [p 373]
(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 exercised 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 compromissary clause inserted in
Article 7 of the December 1920 Mandate agreement is a sort of bastard
accretion, an anomaly introduced into 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 compromissary
clause among the conditions of the Mandate. Moreover, in respect of its
external form, the compromissary 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. [p 374]
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 man'- reasons for which the Council had,
as an act of good Mandate administration, to include the compromissary
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 compromissary 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 g 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. [p 375]
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 1921
FNl. 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 1921 FN2, 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 I September 1921
that preparations were set on foot for the first election of judges FN3.
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.
---------------------------------------------------------------------------------------------------------------------FN1
League of Nations, Official Journal, Special Supplement No. 193,
Twenty-first List, Geneva, 1944.
FN2 Manley O. Hudson, Permanent Court of International Justice, New York,
1934, pp. 134-138.
FN3 Hudson, op cit, pp 116-120
---------------------------------------------------------------------------------------------------------------------
But there are other very important aspects of the subject.
I. 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
Nations FN4.
---------------------------------------------------------------------------------------------------------------------FN4
The Permanent Court of International Justice, 5th Annual Report (1928-1929),
page 390 Collection of Texts governing the jurisdiction of the Court, Series
D, No. 6, page 18.
---------------------------------------------------------------------------------------------------------------------
[p 376]2. On 19 September 1929 the Union of South-Africa subscribed for 10
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 1930 FN1. This acceptance of the optional clause was
renewed on 7 April 1940 "until such time as notice may be given to terminate
the acceptance" FN2.
---------------------------------------------------------------------------------------------------------------------FN1
First addendum to the fourth edition of the Collection of Texts governing
the jurisdiction of the Court. Leiden, 1932, page 7. Eigth Annual Report of
the Permanent Court of International Justice, 1932.
FN2 Sixteenth Report of the Permanent Court of International Justice, p.
334. Yearbook of the International Court of Justice, 1946-1947, p. 215.
---------------------------------------------------------------------------------------------------------------------
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 capacity 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 Statute FN3. 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.
---------------------------------------------------------------------------------------------------------------------FN3
International Court of Justice, Yearbook 1955-1956, page 184; 1959-1960,
page 253; 1960-1961, page 215.
---------------------------------------------------------------------------------------------------------------------
There were then two voluntary acts by which the Republic of South Africa
accepted the transfer of jurisdiction from the [p 377] 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
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
[p 378] 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).
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.
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.
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.
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
[p 379] 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.
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 exercised by
the Mandatory. It is only in this way that the purposes of the institution
can be served.
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.
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.
Third Objection
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.
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 [p 380] 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 Nembers 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.
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
compromissary 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 I (paras. 2 and
3) and 2 (para. 5) of the Charter of the United Nations [p 381].
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.
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.
Since the members of delegations accredited to the United Nations are the
official representatives of their respective governments, no [p 382] 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.
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."
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.
When the text of Article 7 refers to the States enjoying the benefit of the
compromissary 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.
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 [p 383] 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.
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, sub-paragraph (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:
"The terms of [the new] trusteeship ... shall [in the imperative] be agreed
upon by the States directly concerned, including the mandatory power in the
case of territories held under mandate by a Member of the United Nations..."
(Italics added.)
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.
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 [p 384] 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).
Fourth Objection
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.
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.
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.
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 [p 385] 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.
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.
The administrative or political course having been exhausted, the Applicants
have had resort to the second course provided for� by 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 functioning of the
system. There is nothing strange [p 386] in the abandonment of
administrative negotiations when the nature of the dispute makes the
intervention of a tribunal preferable.
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 des 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.
These reasons, in my opinion, justify the overruling of the Fourth
Preliminary Objection.
Conclusion
For the reasons expressed above and also on the relevant grounds referred to
in that part of the Advisory Opinion of II July 1950 which coincides with
the reasoning which I have just set out, I come to the conclusion:
That the two Preliminary objections (First and Second) raised by the
Respondent to the jurisdiction of the Court are not well-founded in law;
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;
That, consequently, the Court has jurisdiction to proceed to adjudication
upon the merits of the applications.
(Signed) J. L. Bustamante R.
[p 387]
SEPARATE OPINION OF JUDGE JESSUP
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.
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.
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.
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.
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.
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.
On 8 July the British-French draft was taken as a basis for discussion but
the United States representative submitted an [p 388] 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) :
"Article 15
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."
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.
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 g
July.
On the following day, IO 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.
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 re-[p 389]presentative 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.
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.
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."
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 I 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.[p 390]
At the end of the draft Convention is a sentence:
'" Confirmed by the Council of the League of Nations the... day of..."
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.
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 IO 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.
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.
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 [p 391] adopting the Hyrnans
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.[p 392]
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.)
The difference of opinion to which the Report referred, in the case of the C
Mandates, was the Japanese reservation on the Open Door.
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.)
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."[p 393]
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.)
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".
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.
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 [p 394]
"MANDATE FOR GERMAN SOUTH WEST AFRICA
Submitted for Approval"
was no longer cast in the form of a formal convention such as had been
discussed by the Council of Heads of Delegations at Pans, 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
paragraphs of the Mandate as ultimately in force. These three paragraphs are
then followed by one line which reads:
"Hereby [the Council] approves the terms of the Mandate as follows:"
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."
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".
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:"
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 [p 395] 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:
"Consid�rant que, aux termes de l'Article 22 ci-dessus mentionn�, paragraphe
8, il est pr�vu que si le degr� d'autorit�, de contr�le ou d'administration
� exercer par le Mandataire n'a pas fait l'objet d'une Convention ant�rieure
entre les Membres de la Soci�t�, il sera express�ment statu� 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.
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.
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 [p 396] 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".
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.
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."
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. [p
397]
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.
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".
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.
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.
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.
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 [p 398] the proposed terms, and the Mandates were then
confirmed by the Council of the League..." (Italics supplied.)
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.
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.
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.
I. 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 I 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 [p 399] 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
IO 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 1 (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. [p 400]
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.
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 I(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.
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. [p 401]
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."
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.
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.
***
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 [p 402] 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.
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.
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.)
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".
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. [p 403] 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. 1, 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.
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.)
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.
In the Free Zones 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 (19321, P. 145).
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.)
In the case of Railway Traffic, Lithuania and Poland, the Permanent Court of
International Justice held that the participation of [p 404] 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).
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 II
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.
An unusual item is No. 319 in Vol. 20 of the United Nations Treaty Series
entitled "Communiqu� 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 communiqu�
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 communiqu� 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 proc�s-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 [p 405] 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.)
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."
Nothing in the form�or formlessness�or novelty of the Mandate, militates
against its being considered a "treaty".
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 [p 406] 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."
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.
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...".
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."
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. I 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...
C. Mandates...
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."
The final italicized word again shows the flexibility of terminology in this
branch of law.[p 407]
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
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.)
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.
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".
In Article 37 the term used again is "treaty or convention", but in Article
38 I (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. [p 408]
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.
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.
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 Rule 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.
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".
In order to analyze the legal position of other "Members of the League of
Nations" in connection with the Mandates which use this [p 409] 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.
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.)
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 [p 410] 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 inn on the principle of such survival.
In the report of Committee 11712 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.
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.
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 [p 411] 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.
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.
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 [p 412] 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.
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.
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 [p 413] 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.
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.
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.
What then of Article 77-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. [p 414]
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".
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.
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" ?
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 [p 415] 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.
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.)
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.
In applying the foregoing analysis to the instant cases, it must be
reemphasized that this analysis is made with aid of aspects of the [p 416]
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.
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 [p 417] 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.
The foregoing reasoning stands by itself, but it is supported by another
aspect of the situation.
In the meeting of the League Assembly on g 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 Commis-[p 418]sion 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.)
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).
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.
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.)
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.[p 419]
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.
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 g 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.
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 [p 420] 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.)
Because of the last-minute amendment of Respondent's submissions, a few
words should be said about the registration of treaties.
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."
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.
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 II 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 [p 421] 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).
There were numerous instances of agreements which were considered legally
effective but which were not registered. Some examples may be given.
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 I of the Covenant and to carry out all obligations involved
in membership of the League."
The League Assembly by resolution admitted Afghanistan to Membership.
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.
It seems unnecessary to multiply authorities to support a well-established
conclusion.
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 [p
422] the Secretary-General to various States indicate a practice quite
similar to that prescribed for Draft Conventions of the International Labour
Organisation.
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.)
***
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.
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.
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.[p 423]
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".
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 [p 424] 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.
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.
In Interpretation of P�ace 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 19 50, 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."
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. [p
425]
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.
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 th�orie de l�intervention d'humanit�, XVII,
Revue g�n�rale du droit international public (1910), pp. 468-526; Stowell,
Intervention in International Law (1921), passim.
States have also asserted a legal interest in the general observance of the
des 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".
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 1. Illustrative
is the provision in Article II 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 [p 426] international character under
Article 14 of the Covenant of the League of Nations. The Serb-Croat-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.)
The same provision is found in Article 69 of the Peace Treaty with Austria,
and Article 60 of the Treaty of Trianon with Hungary.
Similarly the Genocide Convention, which came into force on 12 January 1951
on the deposit of the twentieth ratification, provides in Article IX:
"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'�tre 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.
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 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...[p 427]
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...
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:
I. "Any of the Members shall have the right to file a complaint with the
International Labour Office if it is not satisfied that any other Member is
securing the effective observance of any Convention which both have ratified
in accordance with the foregoing articles."
Article 423 of the Constitution provides:
I. "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.)
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 [p 428] 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."
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.)
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.
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 [p 429] 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.
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 II 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.
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-perma-[p 430]nent 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.
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 lest
not in the same degree..." (Note by "H. L." in 1935 British Yearbook of
International Law, p. 165.)
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.
716-717.) [p 430]
The conviction registered in the peace treaties at the close of World War 1
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..."
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.
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 I because paragraph 2 would have covered the field.
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" [p 432] 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.
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 (Le. 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" ? Is it possible to interpret the words "the
provisions" as meaning only "some of the provisions"?
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.)
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.
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 [p 433] "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.
***
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.
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 [p 434] 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.
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 Pans
Peace Conference at the end of World War 1, 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.
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.
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.)
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.[p 435]
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.
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 recognizes, 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.)
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 dl 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."
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"[p 436]
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.
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.
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.
[p 437]
SEPARATE OPINION OF SIR LOUIS MBANEFO
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.
These objections of the Respondent, as set out in its final submissions,
are:
Firstly, that 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 said Mandate Agreement as a whole, including Article
7 thereof, and
(b) in any event, with respect to Article 7 itself;
Secondly, that 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, that 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.
In dealing with the issue of jurisdiction, I think it would be better to
begin with the position as it was before the dissolution of the League. The
first question that leaps to the mind then is would the Permanent Court of
International Justice have had jurisdiction in the matter now before the
Court ? If it would, then by Article 37 of the Statute of the International
Court of Justice that jurisdiction [p 438] would have been transferred to
this Court, assuming that the Mandate with Article 7 is still in force.
The competence of the Permanent Court of International Justice is provided
for in Article 36 of the Statute of that Court, the first paragraph of which
reads as follows:
"The jurisdiction of the Court comprises all cases which the parties refer
to it and all matters specially provided for in treaties and conventions in
force."
The Permanent Court would have had jurisdiction if the Mandate which
contains Article 7 on which the Applicants base their right to come to Court
was a treaty or convention in force. The Respondent says in its final
submission that the Mandate was never a treaty or convention and that if it
ever was a treaty or convention, it is, since the dissolution of the League,
no longer in force. I agree with the Court that the Mandate is and has
always been a treaty or convention in force and I shall explain how I came
to that conclusion later. Assuming, therefore, that the Mandate was a treaty
or convention in force, when the Permanent Court of International Justice
was abolished, Article 37 transferred to this Court the jurisdiction which
the Permanent Court had or would have had under Article 7 of the Mandate.
Paragraph 1 of Article 35 of the Statute of this Court States that the Court
shall be open to the States parties to the Statute of the International
Court, and by Article 93 of the Charter of the United Nations all Members of
the United Nations are ipso facto parties to the Statute of the Court.
Paragraph 2 deals with conditions under which other States could have access
to the Court, but we are not concerned with that in this case, as both
Ethiopia and Liberia and the Respondent are Members of the United Nations
and therefore parties to the Statute of this Court. It follows that if by
reason of Article 37 this Court assume jurisdiction under Article 7 of the
Mandate, the Applicants, to be able to come to this Court, must be Members
of the United Nations, as indeed they are. Article 36 of the Statute of the
International Court contains the same provisions as Article 36 of the
Statute of the Permanent Court quoted above.
The Applicants base their right to come to Court on Article 7 of the Mandate
and on Article 37 of the Statute of the International Court having regard to
Article 80 (1) of the United Nations Charter.
Article 80 (1) of the United Nations Charter is not a jurisdictional clause;
it is essentially an interpretation clause and as such it has no direct
bearing on the issue of jurisdiction.
The first important issues which the Court is then called upon to decide on
the First Preliminary Objection are whether the Mandate was a treaty or
convention and, if it was, whether it is still in force [p 439] after the
dissolution of the League of Nations and, if in force, whether Article 7
survived with it.
These issues are substantially raised in paragraphs I and 2 of the
Applicants' claims as set out in their respective Applications. They are
issues which the Court will have to decide in any case in order to satisfy
itself that it has jurisdiction to entertain the claims and the fact that
they are included as part of the claims before the Court only serves to
emphasize their importance in that respect. Their inclusion as part of the
claims therefore does not of itself give the Court jurisdiction to deal with
the case. The Court's competence must be shown to exist independent of the
claim before it.
Treaty or convention in force
In his submission, Respondent says with respect to the First Objection, that
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. The
submission is advanced with respect to the Mandate Agreement as a whole,
including Article 7 thereof, and, in any event, with respect to Article 7
itself.
The first part of the submission, namely, that the Mandate Agreement was
never a "treaty or convention in force", was based on a review of the
history of the creation of the Mandate as given on behalf of the Respondent
in answer to certain questions posed by a Member of the Court, in particular
questions Nos. 3 and 4 which read as follows:
"Question 3: Does any party to these proceedings claim that the Declaration
by the Council (Annex B) is in itself a treaty or convention?"
"Question 4: ... A. Who in 1920 were the parties to any treaty or convention
by virtue of which the Mandate was conferred upon the Respondent upon the
terms or provisions set out in the Declaration?
B. If States, Members of the League, were parties to such treaty or
convention:
(1) Was the treaty or convention registered under the provisions of Article
18 of the Covenant and the machinery for registration established by the
League? If so, by whom was it registered and to whom was the certificate of
registration issued?
(2) If not registered, what significance, if any, is to be attached to the
fact of non-registration?"
The Respondent said in its reply that the Declaration was not in itself a
treaty or convention: because it was called a "declaration" and not a treaty
or convention, was never signed by the Mandatory, had no provision for
ratification, was never ratified and [p 440] was never registered. It,
however, added in answer to question A that if the Mandate was a treaty or
convention, the Parties were the Mandatory on the one hand, and the League
and/or its Members as such, on the other.
Until the questions were put, the Respondent had proceeded on the basis that
the Mandate Declaration was a treaty or convention. That the Mandate
Declaration is a treaty or convention [within the meaning of Article 37 of
the Statute of the Court] is supported strongly by the past history of the
Mandate. If the Mandate Declaration was never a treaty, by what right then
did the Respondent assume the administration of the territory? For upwards
of 40 years it has administered the territory because it regarded the
Declaration as a treaty or convention empowering it to do so on the terms
therein set out. If the law of estoppel has any meaning or application in
international law the Respondent would be precluded from raising such an
issue on the face of its own conduct during the past 40 years. In the
Eastern Greenland case (1933, Series A/B, p. 51) the Permanent Court of
International Justice said at page 68:
"In accepting these bilateral and multilateral agreements as binding upon
herself, Norway reaffirmed that she recognized the whole of Greenland as
Danish; and thereby she has debarred herself from contesting Danish
sovereignty over the whole of Greenland and in consequence from proceeding
to occupy it."
It is significant, if there is any substance in the point, that the
Respondent had not raised it earlier either in any of the previous
proceedings on the various advisory opinions on the Mandate requested of the
Court by the General Assembly of the United Nations, or in the proceedings
of the various organs of the United Nations.
This Court in the 1950 Advisory Opinion on the Status of South West Africa
held after careful consideration that the Mandate was a treaty or convention
in force. In the Mavrommatis Palestine Concessions case (P.C.I.J. Series A,
No. 2, p. 7), the Permanent Court of International Justice regarded the
Palestine Mandate created in a similar manner as the Mandate for South West
Africa as a treaty or convention creating rights and obligations recognized
by international law, and based jurisdiction on Article 26 of that Mandate,
which is identical to Article 7 of the Mandate for South West Africa.
The Court in its Judgment has given a brief history of the creation of the
Mandate with which I generally agree, and I do not intend to repeat it here.
It is enough to Say for the purpose of my argument that Article 22 of the
Covenant of the League, which was an integral part of the Peace Treaty with
Germany, provides that overseas territories which Germany had by Articles
118 and 119 of the Peace [p 441] Treaty surrendered to the Principal Allied
and Associated Powers should be governed on the principle that the
well-being and the development of the peoples of those territories form a
sacred trust of civilization and that securities for the performance of the
trust should be embodied in the Covenant; that the tutelage of such peoples
should be entrusted to advanced nations who are willing to undertake the
responsibility, and that the tutelage should be exercised by them on behalf
of the League of Nations. Article 22 further provides that the degree of
authority, control or administration to be exercised by the Mandatory shall,
if not previously agreed upon by Members of the League, be explicitly
defined in each case by the Council of the League. The Principal Allied and
Associated Powers, in whose favour Germany renounced the territories, acting
in accordance with Article 22, had previous to the signing of the Treaty
agreed that the Mandate for South West Africa should be conferred upon His
Britannic Majesty (who at the time had authority legally to undertake
international obligations on behalf of the Government of the Union of South
Africa) on behalf of the Government of the Union of South Africa. The
Council of the League, confirming the Mandate, defined its terms in the form
as set out in the Declaration, Annex B. The terms thus defined by the
Council pursuant to Article 22 (8) of the Covenant of the League and agreed
to by the Mandatory (or on its behalf) became, in my view, an annex to the
Covenant, which created the Mandate and is the source from which the
obligations set out in the Declaration derived their validity and binding
force. As a matter of fact it had been the intention if they had been drawn
up soon enough to include them in the Treaty, probably as a schedule to the
Covenant.
As such, there would have been no argument that they would be regarded as
part of the Covenant, which is admittedly a treaty or convention. Because
they were set out in a separate document which by its preamble relates it to
the Covenant does not make them any the less part of the Covenant and a
fortiori a treaty or convention.
Terminology, as the Judgment of the Court rightly points out, is not a
criterion for determining whether an instrument is a treaty or convention.
In the 8th edition of Oppenheim's International Law, page 898, paragraph
508, it is stated:
"International compacts which take the form of written contracts are
sometimes termed not only agreements or treaties, but acts, conventions,
declarations, protocols, and the like. But there is no essential difference
between them and their binding force upon the contracting parties is the
same, whatever their name."
Regarded as part of Article 22 of the Covenant, the Mandate Declaration
would not, in my view, require further ratification or [p 442] separate
registration. Article 7 provides that the Mandate Declaration shall be
deposited in the archives of the League of Nations, and copies thereof sent
to all Powers signatories of the Treaty of Peace. The fact that copies were
to be sent to all Powers signatories of the Treaty of Peace strengthens the
argument that the Declaration was to be regarded as part of the Covenant
which is itself part of the Treaty of Peace.
I think it is necessary to bear in mind that the Mandate Declaration was not
creating a new Mandate. It was only a step in the implementation of Article
22. The terms therein defined were intended to apply to all the "C" Mandates
which included Nauru, m7estern Samoa, South West Africa and the North
Pacific Islands. Each of these Mandates contain identical terms as are set
out in the Declaration under consideration. It would therefore be wrong to
regard it as a mere Council resolution. The Council in defining the terms
was carrying out a duty assigned to it under paragraph (8) of Article 22.
Nor do I agree that Article 7 of the Mandate went beyond what the Council
was authorized to do under Article 22. Article 7, read in the light of
paragraph 8 of Article 22 of the Covenant, is a limitation on the power of
administration which had been conferred on the Mandatory. The first
paragraph of the Article says the Mandatory cannot modify the terms of the
Mandate without the consent of the Council, and the second paragraph imposes
on the Mandatory the obligation to accept the compulsory jurisdiction of the
Court in the event of any dispute with another Member of the League
regarding the interpretation and application of the Mandate.
As to the necessity for having Article 7, this has been fully dealt with in
the Judgment of the Court and it would be superfluous to add to what has
been said.
I agree with the decision of the Court that the first part of the submission
of the Respondent that the Mandate was never a treaty or convention should
be rejected. That submission departs from the very basis on which the
Respondent began its objection to jurisdiction which is the second part of
its submission, namely that the Mandate is no longer a "treaty or convention
in force".
This Court, in its Advisory Opinion in the South West Africa case in 1950,
held�as I have already stated�that the Mandate survived the League and is
still in force. The Respondent has not quarrelled seriously with that
finding of the Court. Indeed, it says in its oral submissions, through its
Agent, Dr. verLoren van Themaat (page 4 of oral proceedings):
"We state that Our submissions under the First Objection concern only the
Mandate as an agreement, Our contention being that as a treaty or convention
the Mandate is no longer in force. We state further that no submissions are
advanced about the question whether the Mandate in the wider sense of being
an institution survived the [p 443] League or not. The logical effect of
this attitude is that, although we make no admissions in that regard, we are
prepared for the purposes of Our argument in these Objections to assume that
the Mandate as an institution survived the League."
Later, at pages 16 and 17, Mr. de Villiers in his oral submissions on behalf
of the Respondent, also states:
"... although we contend that the Mandate, seen as a treaty or convention,
has lapsed, we do not offer any argument to the Court on the question, the
wider question, whether the Mandate, seen as an objective institution, is
still in force, and if so, to what extent... It is therefore common cause
between us and the Applicants that, for purposes of the argument, at least
the substantive obligations as originally set out in clauses 2-5 of the
Mandate must be regarded as still being in force."
The distinction which the Respondent tries to draw between the Mandate as an
agreement and the Mandate as an objective institution is in my opinion not
feasible. It proceeds from a misconception of the nature of the Mandate.
The Court in its Advisory Opinion of 1950 described the Mandate in these
terms:
"It is now contended on behalf of the Union Government that this Mandate has
lapsed, because the League has ceased to exist. This contention is based on
a misconception of the legal situation created by Article 22 of the Covenant
and by the Mandate itself. The League was not, as alleged by that
Government, a 'mandator' in the sense in which this term is used in the
national law of certain States. It had only assumed an international
function of supervision and control. The 'Mandate' had only the name in
common with the several notions of mandate in national law. The object of
the Mandate regulated by international rules far exceeds that of contractual
relations regulated by national law. The Mandate was created in the interest
of the inhabitants of the territory, and of humanity in general, as an
international institution with an international object�a sacred trust of
civilization. It is therefore not possible to draw any conclusion by analogy
from the notions of mandate in national law or from any other legal
conception of that law. The international rules regulating the Mandate
constituted an international status for the Territory recognized by all the
Members of the League of Nations, including the Union of South Africa.
The essentially international character of the functions which had been
entrusted to the Union of South Africa appears particularly from the fact
that by Article 22 of the Covenant and Article 6 of the Mandate the exercise
of these functions was subjected to the supervision of the Council of the
League of Nations and to the obligation to present annual reports to it; it
also appears from the fact that any Member of the League of Nations could,
according to [p 444] Article 7 of the Mandate, submit to the Permanent Court
of International Justice any dispute with the Union Government relating to
the interpretation or the application of the provisions of the Mandate."
Judge Read in his separate Opinion, at page 164, also said of it:
"It is sufficient to note that the international status of South West Africa
was that of a mandated territory. The Union of South Africa exercised most
of the powers which are inherent in sovereignty, but the residual elements
were neither exercised nor possesed by the Union. It was subject to three
kinds of international obligations.
The first, and the most important, were obligations designed to secure and
protect the well-being of the inhabitants. They did not enure for the
benefit of the Members of the League, although each and every Member had a
legal right to insist upon their discharge. The most important, the
corner-stone of the Mandates System, was 'the principle that the well-being
and development of such peoples forms a sacred trust of civilization', a
principle which was established in paragraph I of Article 22 of the
Covenant.
The second kind of obligations comprised those which were due to, and enured
to, the benefit of the Members of the League, e.g., in respect of
missionaries and nationals.
The third kind of obligations comprised the legal duties which were
concerned with the supervision and enforcement of the first and the second.
There was the compulsory jurisdiction of the Permanent Court, established by
Article 7 of the Mandate Agreement; and there was the system of report,
accountability, supervision and modification, under paragraphs 7, 8 and 9 of
Article 22, and Articles 6 and 7 of the Mandate Agreement. This third class
of obligations was the new element in the Mandates System, and its
importance should not be underrated. At the same time it should not be
overestimated. The disappearance of the obligations included in the first
and the second classes would bring the Mandates System to an end. The
disappearance of the r�gime of report, accountability, supervision and
modification, through the Council and the Permanent Mandates Commission,
might weaken the Mandates System; but it would not bring it to an end. As a
matter of fact, the record shows that the paralysis of those agencies during
six war years had no detrimental effect upon the maintenance of the
well-being and development of the peoples."
The Mandate, it is clear from the above views, with which I agree, exists in
terms of rights and obligations as set out in Article 22 of the Covenant and
in the Mandate Declaration. As an institution it is a bundle of rights and
obligations, not a physical edifice, although it has physical aspects in the
existence of the Mandatory, the territory and its inhabitants, the League
and its component Member States, bodies which have the rights and to [p 445]
whom the obligations are owed. When the Court in 1950 said that the Mandate
survived, it is this bundle of rights and obligations, in so far as they are
still capable of being exercised and enforced, that survived. It is rather
unconvincing to Say, as the Respondent has said, that only clauses 2-5 of
the Mandate (which creates certain rights for the Mandatory and, by his
argument, no enforceable obligations) survived but that the instrument
containing the clauses has ceased to have effect. If the right to administer
the territory which the Respondent claims survive, it can only survive
because the instrument creating it is still in force unless its continued
validity can be traced to another source; and no such source has been
suggested; hence the Court said in 1950 (page 133, paragraph 2):
"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."
With respect to Article 7, the Respondent says that even if the Mandate was
ever a treaty or convention in force, the Article has lapsed with the
dissolution of the League as there is now no longer any Member of the League
capable of enforcing it; in other words, that a condition for invoking
Article 7 is a continued membership of the League. Up to a point there is
some force in this argument. The right conferred by Article 7 is conferred
on Members of the League; the idea of the Mandate was conceived within the
framework of the League; the finalizing of the terms, the power to accept
reports and to supervise the administration, and the power to agree to a
modification of the terms of the Mandate, were vested in the League or its
organs. The purpose of the Mandate, however, is the well-being and
development of the peoples of the territories as a sacred trust of
civilization. That purpose has not yet been achieved, and no one has
suggested that it has been abandoned or rendered invalid with the
dissolution of the League. Although the League was dissolved, the Mandate
still continues and the rights and obligations embodied in it became, as it
were, maintained at the level at which they were on the dissolution of the
League. It is on this ground that the Respondent can justify its right to
continue to administer the territory and those States who were Members of
the League at the time of its dissolution the right to continue to invoke
the compromissory clause of Article 7. The right to invoke Article 7
remained vested in those States who were Members of the League at the time
of its dissolution, and continues notwithstanding the termination of the
League's functions.
Reference has been made in the Judgment to the resolution of 18 April 1946
of the General Assembly of the League of Nations [p 446] and to the
undertakings given by the Mandatories, including the Respondent, to continue
to administer the territories in accordance with their respective Mandates
until other arrangements were made. The point which has been made in the
Judgment of the Court, and which I feel needs to be emphasized, is that the
life of the Mandates system after the dissolution of the League was to be of
a very short duration, because of the provision for the Trusteeship System
in the Charter of the United Nations. The other Mandates have been
satisfactorily terminated, but the winding-up operation has continued in the
case of the Mandate for South M7est Africa and as long as it continues it
will still be open to those States who were Members of the League at the
time of its dissolution to continue to have the right to call the Mandatory
to question if he acts contrary to the terms of his Mandate.
In his Submission on the Third Preliminary Objection the Respondent says
that the conflict or disagreement alleged by the Applicants to exist between
them and the Respondent is by reason of its nature and content not a
"dispute" as envisaged in Article 7 of the Mandate for South West Africa and
more particularly in that no material interests of the Applicants or of
their nationals are involved therein or affected thereby.'
Respondent's argument proceeded on the assumption that, despite the
dissolution of the League, Applicants would still be entitled to invoke the
provisions of Article 7 of the Mandate for South West Africa in an
appropriate case. The burden of his argument is that there is a
qualification inherent in the meaning of the word "dispute" in a compulsory
jurisdiction clause, such as Article 7, and that is "a confining of the
subject-matter in dispute to something in which the Applicants have legal
rights or interests". He says that the dispute in the instant case does not
affect any material interests of the Applicant States or their nationals.
In construing the word "dispute" in Article 7, one should first look at the
word in the light of its ordinary and natural meaning. The material part of
Article 7, for the purpose of this Preliminary Objection, reads as follows:
"The Mandatory agrees that if any dispute whatever should arise between the
Mandatory and another Member of the League relating to the interpretation or
the application of the provisions of the Mandate..."
It is not contended that the dispute, whatever it is, does not relate to the
interpretation or the application of the provisions of the Mandate.
Respondent's Counsel concedes that it does. Indeed, he says in his oral
submission:
"Our contention is not concerned with the question whether the
subject-matter of the dispute falls within the category interpre-[p
447]tation or application of the Mandate. We assume for the purposes of
argument that it does so fall."
Unless the context otherwise dictates, or there is some express provision to
the contrary, the term "dispute" must be given its ordinary and natural
meaning. In the context in which the word appears in Article 7, no such
inherent qualification as Respondent's Counsel contends can legitimately be
implied or read into it. In its Advisory Opinion on Interpretation of Peace
Treaties with Bulgaria, Hungary and Rumania in 1950, this Court held, at
page 74, that "where there has 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, the Court must conclude that
international disputes have arisen"; and in its Judgment in the Asylum case
between Colombia and Peru, November 1950, the Court said that "a dispute
requires a divergence of views between the parties on definite points". In
the Mavrommatis case the Permanent Court of International Justice, in
dealing with Article 26 of the Mandate for Palestine, which is an identical
clause to Article 7 of the Mandate for South West Africa, defines "dispute"
as a "disagreement on a point of law or fact, a conflict of legal views or
of interests between two persons".
Respondent's Counsel round himself in some difficulty when he came to define
"interest". He said that it must be material interest. The Court cannot
decide whether a dispute affects the material interest of an applicant
without going into the evidence. An applicant is not limited to showing that
its interest, be it material or not, has been affected; it is also entitled
to show that the course of action pursued or threatened is likely to affect
its interest or those of its nationals adversely.
But an applicant does not have to do that under Article 7 once it is shown
that the parties hold clearly opposing views on a question of law of fact.
In this respect the view of the Agent for the British Government in the
Mavrommatis case is noteworthy. In the preliminary counter-case in the
Mavrommatis case (Series C, No. 5-1, page 445) he states:
"The concessions granted to Mr. Rutenberg in September 1921 for the
development of electrical energy and water-power in Palestine were obliged
to conform to this Article II, and it would have been open to any Member of
the League to question provisions in those concessions which infringed the
international obligations which His Britannic Majesty as Mandatory for
Palestine had accepted."
Article 7 speaks of "any dispute whatever". That phrase throws the net as
wide as possible. The framers of the Article could not [p 448] be thinking
only of disputes where the right or material interest of a State or its
nationals was concerned. The inhabitants of the mandated territory of South
West Africa could not themselves� either individually or collectively�under
the Court's Statute or Rules bring an action to the Permanent Court, nor
could the League, so that when the Mandate speaks of "any dispute whatever
between the Mandatory and another Member of the League", vis-�-vis the
Mandate, the authors of the Mandate Agreement must have intended that any
breach of its obligations by the Mandatory, if it could not be settled by
negotiation, should be the subject-matter of an action in a contentious
proceeding under the compulsory jurisdiction of the Court. In the
Mavrommatis case the Permanent Court said, at page 15: "The dispute may be
of any nature; the language of the article in this respect is as
comprehensive as possible."
I do not therefore find any substance in the submission of Respondent that
the word "dispute" should be given a restricted meaning by confining it to
disputes in which the material interests of the Applicants are involved.
Further, I am of the view that, even if any such interest is required to
sustain an action under Article 7, absence of such interest may be a ground
for refusing a claim but not for denying jurisdiction and, in any event, the
Applicants as has been shown in the Judgment of the Court have such interest
in ensuring that the Mandatory carry out its international obligations under
the Mandate.
I agree with the Judgment of the Court that the Mandate is a treaty or
convention in force and that Article 7 of the Mandate Declaration is still
in force. I also agree with the conclusion reached by the Court that the
Third and Fourth Preliminary Objections are not well founded. It follows
therefore that Applicants as parties to the Statute of this Court have the
right by virtue of Articles 36 and 37 of the Statute of the Court to invoke
the compulsory jurisdiction of the Court in the instant proceedings.
(Signed) Louis Mbanefo.
[p 449]
DISSENTING OPINION OF PRESIDENT WINIARSKI
[Translation]
The subject of the third objection can be analysed in two ways. It is
possible to deny the existence of a dispute as such between the Applicants
and the Respondent and to find that the claim is inadmissible on the basis
of the Statute of the Court. It is also possible, supposing Article j of the
Mandate instrument to be still in force as did the Court's Opinion of II
July 1950, to show that that Article is not applicable to the case brought
before the Court by the Applicants and that the Court therefore has no
jurisdiction to hear the present case.
It has been observed that the question of admissibility is one which comes
after that of jurisdiction; the consideration of a question of admissibility
assumes a finding of jurisdiction. Certainly, there are cases where the
observation would be justified; but there are others in which it is not
necessary that there should have been a finding of competence before an
Application can be held to be inadmissible. The Permanent Court of
International Justice adopted a pragmatic position in this connection. In
one case it said that the distinction between lack of jurisdiction and
inadmissibility, while clear in municipal legal systems, has not the same
significance in international law. In another case it expressed the same
opinion: "Whether this submission should be classified as an 'objection' or
as a fin de non-recevoir, it is certain that nothing, either in the Statute
or Rules which govern the Court's activities, or in the general principles
of law, prevents the Court from dealing with it at once, and before entering
upon the merits of the case; for there can be no proceedings on the merits
unless this submission is overruled." (Polish Upper Silesia, P.C.I.J.,
Series A, No. 6, p. 19.)
The second aspect involves both substantive and procedural law: it is a
question of whether the Court has jurisdiction to hear a case in which the
Applicants have no individual legal interest which is in issue for them, as
appears from the facts placed on record by the Applicants themselves
For the purpose of the argument it will be assumed that after examination
the meaning of Article 7 remains doubtful; in fact it is not, as will
shortly be shown. The first question that arises in this hypothetical case
is what was the practice of the League of Nations in this respect and what
may be learned from it concerning the interpretation and application of the
provision. In the League of Nations period fourteen Mandates were in force
over twenty-five years. During that whole period only one case concerning
Mandates came before the Permanent Court of International Justice, the [p
450] Mavrommatis case, and this fact alone is significant. It was the
subject of three Judgments (Series A, Nos. 2, 5 and II).
The Court directed its attention, inter alia, to the following main point:
"violation of international obligations accepted by the Mandatory and damage
to M. Mavrommatis' interests resulting therefrom" (Series A, No. 5, p. 28,
II). There were several concessions involved; in one of the cases the Court
asked "whether this fact alone constituted a violation of the international
obligations contemplated in Article II of the Mandate" (ibid., p. 38). It
was able to find (Series A, No. II, p. 18), in virtue of the jurisdiction
"which it derives under Article 26 of the Mandate" (the corresponding
article to Article 7 in the present case), that there had been a breach of
Article II of the Mandate to the detriment of the Greek national. In another
case (Series A, No. 5, p. 51) the Court gave judgment "that no loss to M.
Mavrommatis, resulting from this circumstance, has been proved and dismissed
the Applicant's claim on this point. This was a classic case.
The authors of a number of dissenting opinions took the view that the
dispute was not one between States, but was in fact a dispute between Great
Britain and M. Mavrommatis.
The Court was at the outset of its activities and thought it necessary to
reply to these arguments by stating, with finality, the unquestionable
principle that (Series A, No. 2, p. 12): "Once a State has taken up a case
on behalf of one of its subjects before an international tribunal, in the
eyes of the latter the State is sole claimant... By taking up the case of
one of its subjects ... a State is, in reality, asserting its own rights."
But in addition to this difference of view there was another which was much
more important. In his dissenting opinion Judge Bustamante wrote (Series A,
No. 2, p. 81): "As the latter [the League of Nations] could not appear as a
party to a dispute concerning the application or interpretation of the
Mandate, having regard to the restrictive terms of Article 34 of the Court's
Statute, it is the Members of the League who have been authorized, in their
capacity as Members, to bring before the Court questions regarding the
interpretation or application of the Mandate." And later (ibid., pp. 81-82):
"When [the Mandatory] takes action ... in respect of individuals and private
companies ... there is no question of juridical relations between the
Mandatory and the Members of the League from which she holds the Mandate,
but of legal relations between third parties who have nothing to do with the
Mandate itself."
The opinion of Judge Oda appears to be on similar lines (ibid., p. 86):
"provision is made for indirect supervision by the Court; but the latter may
only be exercised at the request of a Member of the League of Nations ... an
application by such a Member must be [p 451] made exclusively with a view to
the protection of general interests".
Neither Lord Finlay nor J. B. Moore, both in the minority for other reasons,
were able to concur in these views. Lord Finlay, on the contrary, points out
(ibid., p. 42) that in the Palestine Mandate (which was more detailed than
the Mandate for South West Africa), there were a whole series of provisions
which could be violated by the Mandatory to the prejudice of another Member
of the League of Nations (Articles 5-21): the operation of the judicial
system, freedom of communication and transit, equality of treatment, even
questions of antiquities and excavations, the possibility of discrimination
against a country without reasonable grounds, etc. "Under all these heads",
he wrote (p. 13), "there are endless possibilities of dispute between the
Mandatory and other Members of the League of Nations, and it was highly
necessary that a Tribunal should be provided for the settlement of such
disputes." In the same way Judge Moore wrote (p. 61): "There must be a
difference ... in the sense ... that the government which professes to have
been aggrieved should have stated its claims", etc. The view taken by Judges
Bustamante and Oda remained isolated. In 1950 two judges, Judge Sir Arnold
McNair and Judge Read, expressed similar views, but here again the Court was
unable to subscribe to them.
The Council, the League supervisory organ, had constantly to deal with
important legal problems; in no case did it request an advisory opinion of
the Court, in spite of suggestions by the Permanent Mandates Commission;
never, if I am not mistaken, did it envisage the possibility of a Member of
the League of Nations bringing before the Court a question relating to the
general supervision of the administration of the Mandate, which was within
the exclusive cornpetence of the Council and, to a certain extent, of the
Assembly. The two Hymans reports to the Council (of 5 August and 26 October
1920) and the Council's report to the Assembly of the League of Nations of 6
December 1920 on "Responsibilities of the League arising out of Article 22
(Mandates)" are unaware of any such problem.
The Applicants rely on the views of certain jurists in favour of a general
supervision to which any Member of the League could subject any Mandatory by
bringing it before the Permanent Court of International Justice.
And yet Mr. van Rees, one of the most active members, and Vice-Chairman of
the Permanent Mandates Commission, says nothing in his book Les Mandats
internationaux, Vol. 1, Le contr�le international de l' administration
mandataire (Paris, 1927) about this judicial supervision by the Permanent
Court of International Justice claimed to be able to be brought into
operation by any Member of the League. Even more significant, the official
publication The Mandates System�Origin�Principles�Application which the
League put out in 1945 with a preface by the Acting Secretary-General, Mr.[p
452] Sean Lester, is also silent on the subject of this alleged role of the
Court, although it contains a passing reference to the jurisdictional
clause; yet such a role, if provided for, could not have escaped the
attention of the authors. If in League quarters such as the Council,
Secretariat and Permanent Mandates Commission judicial supervision was
contemplated even only as a possibility provided for in extreme cases by the
international agreements, the fact that we find no mention of it in these
two books is inexplicable. If in the time of the League, when the framers of
the Covenant and the Mandates, and their associates, were still alive,
judicial supervision such as the Applicants put forward found no
authoritative proponent, it may be taken as evidence that matters were not
seen in this light.
The characteristic feature of this alleged supervision was that it could be
brought into operation by any Member of the League which considered that
there existed between it and the mandatory administration "a disagreement on
a point of law or fact, a conflict of legal views" on the way in which the
Mandatory was exercising its Mandate. Reference has been made in this
connection to an institution under the old Roman penal law known as "actio
popularis� which, however, seems alien to the modern legal systems of
1919-1920 and to international law. Is it possible that such can have been
the common intent of the framers of the Mandate instruments? There is no
evidence for it, it has been asserted without any attempt to show that it
was so; on the contrary, it would seem that the circumstances in which the
Mandate was established exclude such an eventuality.
At the end of the First World War two new institutions were introduced into
international law: the minorities treaties and the Mandates. The former were
imposed on the "new States" and some other States by the Principal Allied
and Associated Powers. These treaties, as a security for their proper
observance, provided for the jurisdiction of the Court as compulsory for the
States subject to such a r�gime; but the Principal Powers desired to share
the responsibilities of this innovation and proceedings could be instituted
by any Member represented on the Council of the League, that is to Say in
the beginning by the four Principal Powers and the four other non-permanent
Members.
The Mandates were the work of the Principal Allied and Associated Powers,
which shared among themselves (apart from the United States but with
Belgium) the conquered territories, and agreed on the terms of the Mandates.
This is clearly apparent from, inter alia, the report of Viscount Ishii to
the Council on 26 February 1922 (L. o. N., Official Journal, No. 8, 1922, p.
850), which contains the following passage: "In general, therefore, the role
of the Council may be limited merely to ratification of the proposals made
by the [p 453] mandatory Powers"; which is what was done, with a few changes
of which only one is here relevant.
These Powers were realistic; their resistance to the Mandate idea is known.
It is difficult to believe that they should have, as Mandatories, accepted
the heavy new burden of judicial accountability, with all its unforeseeable
implications, towards any Member of the League which might take exception to
their administration of the Mandate. This actio popularis would have been
such a novelty in international relations, going far beyond the novelty of
the Mandates system itself in its implications, that, if the drafters of
these instruments had all agreed on the self-imposition of such a
responsibility, they would not have failed to Say so explicitly, as they did
in the case of certain States subjected to the minorities r�gime.
It is not possible to infer such an obligation as implied, understood or
resulting from tacit agreement, since it would have been an undertaking in
favour of future and unknown third parties. The need for an explicit and
clear provision was more than ever obvious. It is difficult to see in the
second paragraph of Article 7 anything other than a simple jurisdictional
clause of that period, for in order to form an opinion as to the character
and scope of a legal instrument it is necessary to consider it from the
point of view of the period when it was drawn up.
On 17 December 1920 Lord Balfour had submitted for approval by the Council,
inter alia, the Mandate for South West Africa. The second paragraph of
Article 7 of that text read as follows: "If any dispute whatever should
arise between the Members of the League of Nations ... this dispute shall be
submitted to the Permanent Court", etc. The Council modified the paragraph,
putting it into its present form: "The Mandatory agrees that ... any dispute
... shall be submitted to the Permanent Court", etc. The explanation is to
be found in the Ishii report referred to above (ibid., p. 854). In proposing
a modification of the jurisdictional clause of the Mandate instruments to be
approved on 20 July 1922, the Rapporteur proposed a wording identical with
that of the second paragraph of Article 7, which is now in question: "A
similar alteration has been made by the Council in the draft C mandates. It
was inspired by the consideration that Members of the League other than the
Mandatory could not be forced against their will to submit their differences
to the Permanent Court of International Justice."
If the Powers represented on the Council were so scrupulous of the right of
Member States not to be bound without their express consent, it is difficult
to believe that they would have introduced this alleged right of action
without saying so expressly.
It is not possible to find any support for the Applicants' contention in
what has been called the "Tanganyika clause".[p 454]
Article 13 of the British Mandate for East Africa contains, in addition to
the first paragraph which is identical to the jurisdictional clause in
Article 7 of the Mandate for South West Africa, a further paragraph worded
as follows:
"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."
It has been said that since this paragraph specifically empowers any Member
of the League of Nations to submit to the Court any case of infractions of
the rights of its nationals, the first paragraph, and hence Article 7 of the
Mandate we are concerned with, authorizes proceedings with a view to general
judicial supervision. This conclusion is unfounded: while that instrument,
alone among the fourteen Mandate instruments, devoted a special paragraph to
the case of infractions of the rights of nationals of a State Member, the
first paragraph relates merely to cases of infractions of rights which are
the State's own rights. What was said by the Court in 1924, which is quoted
above, has cleared up these questions.
No one has been able to explain how this paragraph, which seems completely
unnecessary, got into the Mandate for Tanganyika and that Mandate alone, but
this is not of the slightest importance. The Permanent Mandates Commission
turned to that question in 1925 but quickly decided not to pursue its
discussion.
In the practice of the League of Nations there were not two types of
supervisory machinery, one judicial and the other administrative. The
supervision of the Council (assisted by the Permanent Mandates Commission)
was not administrative, either by virtue of the character of the organ which
was not an administrative organ, or by its object. The Council was a
political organ; it exercised supervision from the point of view of the
conformity of the administration by the Mandatory with the terms of the
Mandate, thus from the point of view of legality; it consequently had to
decide questions of law and it did so by making available to itself suitably
qualified assistance; but, the matters with which it was concerned being
eminently of a political character, it acted with all the necessary
flexibility; it never availed itself of its right to refer to the Permanent
Court of International Justice for an opinion. On the other hand, any Member
of the League of Nations which considered itself to have suffered injury as
a result of the way in which the Mandatory had exercised its functions, had
the right to refer the dispute in the ordinary way to the Court. There was
only one case of this kind, the Mavrommatis case, the classic case.
So far as scholarly authority is concerned it will suffice to cite the
opinion expressed by Professor Feinberg in his course at The Hague Academy
of International Law. He gave a summary of the [p 455] position in this
connection in 1937, thus shortly before the Second World War:
"Like most of the writers who have, in their works, expressed a view on the
question, I consider that the judicial settlement clause does not confer on
Members of the League of Nations the right unilaterally to bring a Mandatory
Power before the Court except in cases where they can allege the violation
of some right of their own or some injury to the interests of their
nationals. This interpretation would seem to me to be entirely correct and
in conformity with the general scheme of the Mandates System. It is indeed
difficult to imagine that, by the inclusion of the judicial settlement
clause in the text of the Mandates, it was intended to give each Member of
the League of Nations a power so extensive that it would enable it to set
itself up as a censor of the Mandatory's administration. The aim pursued was
certainly a more limited one; it was desired to secure compulsory reference
to the Court of all conflicts which might arise as a result of the
non-performance of obligations assumed by the Mandatory, under the Mandate,
in relation to other Members of the League of Nations."
***
The Applicants rely upon the jurisdictional clause in Article 7 of the
Mandate which, according to the Opinion of 1950, "is still in force" and
according to which the Union of South Africa is under an obligation to
recognize as compulsory the jurisdiction of the Court for "any dispute
whatever" relative to the interpretation or the application of the
provisions of the Mandate.
These words clearly do not mean any dispute whatsoever and still less any
divergence of opinion whatsoever which a State might see fit to bring before
the Court. It is a principle of international law that every conventional
provision must be interpreted on the basis of general international law. The
relevant words of Article 7 cannot be interpreted in such a way as to
conflict with the general rule of procedure according to which the Applicant
State must have the capacity to institute the proceedings, that is to Say, a
subjective right, a real and existing individual interest which is legally
protected. "No interest, no action": this old tag expresses in a simplified,
but, on the whole, correct form the rule of all municipal law, but also of
international law. We have seen it in the Mavrommatis case. In the Wimbledon
case the Permanent Court of International Justice met the objection raised
by Germany by saying (Series A, No. 1, p. 20) that "each of the four
Applicant Powers has a clear interest in the execution of the provisions
relating to the Kiel Canal, since they all possess fleets and merchant
vessels flying their respective flags".
The Statute of the Court is expressly to the same effect, since Article 62
thereof requires that a request to intervene must be made by a State which
is qualified to do so; such a State must show [p 456] that it has "an
interest of a legal nature which may be affected by the decision in the
case", and it is for the Court to decide whether that condition is
satisfied. M. O. Hudson in the second edition of his work on the Court
(1943, p. 420) says: "The precise character of the 'interest of a legal
nature' to be established for intervention under Article 62 is uncertain; it
would seem to require a special interest, in addition to a State's general
interest in the development of international law." Elsewhere (p. 209) he
states: "The 1920 Committee of Jurists ... wished to exclude 'political
intervention' "; the same reasons must be thought to hold good for the
exclusion of a political action.
In the discussion of the Rules of Court in 1922 (Series D, No. 2, p. 87)
Judge Max Huber said that he "did not think that intervention under the
terms of Article 62 should be admitted in cases where no actual concrete
right was at stake". And Judge Anzilotti (p. go) did not think that Article
62 referred to cases which were of interest from the point of view of
international law; it was necessary to have "an actual legal interest in the
dispute". A recent Dutch work has pointed out that public international law
also requires that an applicant should have an interest in the claim which
it advances. "Why, indeed, should the requirement apply solely to an
intervening party and not to the applicant?" It is a principle of
international law which that law shares with municipal legal systems.
The Applicants recognize this principle, since they have frequently repeated
that they have "a legal interest"; but what interest ? That of ensuring that
the burdens of the Mandate should be faithfully performed by the Mandatory?
Or perhaps that of defending the fundamental interests of the organized
international community in the realization of international peace and
security? The Applicants contrast those interests which they describe as
"material", "pecuniary", "narrow", with higher legal interests.
It is unnecessary to dwell at length upon the concepts of action and
interest. In the works of writers there is an abundance of interpretations
and .formulae. But the classic definition may be taken to be that of
Chiovenda: "An interest is a pre-condition of an action and is to be
understood in this way, that without the intervention of judicial organs,
the plaintiff would suffer some unjust prejudice." An interest is therefore
personal and direct.
It was not necessary for the Court to examine the question whether, in the
present cases, the Applicants have such an interest since they themselves
Say that this is not the way in which they understand it. They assert that
they have a sufficient legal interest to institute the present proceedings
(Memorial, pp. 62-63): "a legal interest in seeing to it through judicial
process that the sacred trust of civilization created by the Mandate is not
violated". But such a legally protected interest has not been conferred on
them by any international instrument; such an action is not within the
contem-[p 457]plation of Article 7. They lack the capacity to take legal
action. The decisive element for the interpretation of the second paragraph
of Article 7 is to be found in the very form of words used in that hotly
contested provision.
The second paragraph of Article 7 refers to a dispute which "cannot be
settled by negotiation". The Applicants assert, and the General Assembly has
decided (resolution 1565 (XV) of 18 December 1960): "The dispute which has
arisen between Ethiopia, Liberia and other Member States on the one hand,
and the Union of South Africa on the other ... has not and cannot be settled
by negotiation." The Respondent denies that the dispute cannot be settled by
negotiation. There is here a misunderstanding. The issue is not whether
there have really been negotiations and whether they have reached a
deadlock.
When Article 7 lays down the condition "if it cannot be settled by
negotiation", it is following the example of the traditional arbitration
clause. It refers to a dispute which by its nature lends itself to
settlement by negotiation but which in a particular case cannot be so
settled for one reason or another, that is, a dispute in the classic sense,
recognized by general international law for more than forty years. In the
case concerning Rights of Nationals of the United States of America in
Morocco (I.C.J. Reports 1952, p. 189) the Court said: "It is necessary to
take into account the meaning of the word 'dispute' at the times when the
... treaties were concluded.''
By negotiations between States, however, it can only be possible to settle
disputes in which the parties can deal freely with their rights and their
interests. The condition laid down in Article 7 decisively proves that that
Article envisages only legal cases in the true, the only universally
accepted sense of the expression, where States, believing themselves to
possess legally protected rights and interests, and which have been unable
to settle their dispute by negotiation, ask the Court to decide as between
them.
In the cases referred to the Court the three States are unable to settle by
negotiation between themselves the questions which are the subject-matter of
the submissions of the Applicants because they do not involve their rights
and interests.
It is sufficient to refer to the nine claims in the Memorials which
constitute the merits of the case to see that questions such as the
qualification of the General Assembly to exercise the supervisory functions,
or the duty to render annual reports, or that of preparing the inhabitants
for self-government, could not be settled by negotiation between the
Mandatory and another Member of the League of Nations. They do not have
control over these problems, over these duties and these interests. This
condition forbids the construction of Article 7 put forward by the
Applicants; consequently it is unnecessary to examine the impossible
situation in which the Council u70uld have found itself if these problems
had had to be settled by [p 458] negotiations between States Members in
their own way and to suit their own convenience; or if a problem which had
been settled by the Council in agreement with the Mandatory could be brought
before the Court by no matter what Member of the League of Nations.
The Judgment recognizes as an undeniable fact that a general judicial
supervision, available to all the Members of the League of Nations, was from
the beginning regarded as an essential security in the Mandates System: the
Council in the last resort was powerless in the face of the refusal of a
Mandatory to comply with its decisions and recommendations; the Assembly,
which in any event was normally called upon to exercise no more than a moral
influence in this domain being likewise impotent; any opinion which the
Permanent Court of International Justice might give vas not binding; there
remained therefore individual or collective action by Members of the League
of Nations by means of contentious proceedings, since neither the Council
nor the League of Nations was entitled to appear as a party before the
Court.
This hypothesis is quite improbable; it is not and cannot be supported by
any evidence. Article 22, paragraph 1, of the Covenant provided in fine
"that the well-being and development of such peoples form a sacred trust of
civilization and that securities for the performance of this trust should be
embodied in this Covenant". These securities are set out in the following
paragraphs of Article 22. The Mandates System was perfectly well able to do
without that "security" now recognized by the Court and for which the
Council probably felt no need, just as it felt no need for any enforcement
action, the provisions of the Covenant and of the Mandate Agreement being
considered sufficient by the authors of those instruments.
If the General Assembly and the Republic of South Africa encounter very
serious difficulties in finding a satisfactory solution to what is
unquestionably an abnormal situation, the Court, which is not called upon to
decide ex aequo et bono, notwithstanding its desire to contribute to a
settlement of the conflict, cannot do so without infringing the legal
provisions governing the matter, and the Court's jurisdiction must be
clearly established in the interest of the international community.
(Signed) B. Winiarski.
[p 459]
DISSENTING OPINION OF JUDGE BASDEVANT
[Translation]
I regret that I am unable to subscribe to the Judgment by which the Court
upholds its jurisdiction in the case against the Republic of South Africa
which Ethiopia and Liberia have referred to. it. In particular I am unable
to subscribe to the grounds which the Court has stated in support of that
Judgment.
In their Applications instituting proceedings, Ethiopia and Liberia stated,
"having regard to Article 80, paragraph 1, of the United Nations Charter",
that they found "the jurisdiction of the Court on Article 7 of the Mandate
for German South West Africa made at Geneva on December 17, 1920, and on
Article 37 of the Statute of the International Court of Justice". To these
Applications and to the ensuing Memorials of these two States, the Republic
of South Africa raised Preliminary Objections, and it put forward various
grounds on which it disputed the jurisdiction of the Court. The Court thus
had before it "a dispute as to whether the Court has jurisdiction", in the
event of which, Article 36, paragraph 6, of the Statute provides that "the
matter shall be settled by the decision of the Court".
In order to settle this dispute, the Court, "whose function is to decide in
accordance with international law such disputes as are submitted to it",
should have considered the invitation to the Applicants in Article 32,
paragraph 2, of the Rules of Court to indicate the provisions on which they
founded the jurisdiction of the Court. They have done so. This being so, the
Court had in the first place to consider what had thus been indicated by the
Applicants. Without dwelling upon the silence preserved in the reasoning of
the Judgment with regard to the Applicants' reference to Article 80,
paragraph 1, of the Charter, which appears only incidentally as part of a
quotation from the statement of the Belgian delegate during the discussion
of the resolution of 18 April 1946, I would observe that the method adopted
by the Court consists on the contrary of taking as a point of departure
considerations advanced by the Respondent in support of its denial of
jurisdiction.
The "dispute as to whether the Court has jurisdiction" in the present case,
a matter which is to be settled by the decision of the Court in the present
Judgment, found its precise expression in the submissions presented by the
Parties. In its final submissions, the Government of South Africa, for
various reasons set forth by it in its pleadings and oral arguments,
submitted that the Court "has no jurisdiction to hear or adjudicate upon the
questions ... raised [p 460] in the Applications and Memorials" of the
Applicants. The Governments of Ethiopia and Liberia, for their part, in
their final submissions, asked that it might "please the Court to dismiss
the Preliminary Objections ... and to adjudge and declare that the Court has
jurisdiction to hear and adjudicate the questions ... raised in the
Applications and Memorials".
In order to decide whether it has jurisdiction in the present case, the
Court must apply its Statute, Chapter II, which is entitled "Competence of
the Court", in particular Articles 36 and 37. Article 36, in its first
paragraph, lays down the principle; there follow, in that Article and in
Article 37, certain particular and complementary provisions. On the basis of
what is laid down by the Statute, the Court need only consider Article 7 of
the Mandate, which has been invoked by the Applicants, if the Statute itself
leads to effect being given to Article 7. This is so in the present case
but, for the moment, I am concerned t6 point out that the proper procedure,
in the face of the assertion of the Applicants that they invoke Article 7 of
the Mandate and Article 37 of the Statute, would have been to consider them
in the opposite order.
The Court however directed its attention in the first place to the Mandate
and to Article 7 thereof. It was led to do this by the form in which the
Respondent presented its Preliminary Objections.
The examination of the First Objection led the Court to state its views as
to the legal character of the "Mandate for German South West Africa made at
Geneva on December 17, 1920", the Mandate being thus designated in
accordance with the wording of the Applications. The Court, on the basis of
its findings, has stated that that Mandate was in itself a treaty: it was on
that basis that the Court examined the other questions in issue before it at
the present stage of the proceedings, and it is on that basis that it has
reached its decision as to its jurisdiction to hear and determine the
dispute referred to it.
The Court has done this without reference to the fact that according to the
Applications, paragraph 1, "the subject of the dispute is the continued
existence of the Mandate for South West Africa". The Court has done so
without explaining whether, in adjudicating upon the issue of jurisdiction,
it intended or did not intend to prejudge the merits.
I regret that I am unable to accept that the Mandate made by an act of the
Council of the League of Nations of 17 December 1920, an act performed by
the Council in the exercise of powers conferred upon it by Article 22,
paragraph 8, of the Covenant of the League of Nations, was anything other
than an instrument issuing from the Council, that it was a treaty of which I
am unable to see which were the contracting States. I can indeed see that,
prior to the instrument instituting the Mandate, several agreements were [p
461] reached, declarations of intention were made and are referred to, in
particular the acceptance by the Mandatory of the jurisdiction of the
Permanent Court to hear and determine certain disputes, all these things
were important in their own way, but reference thereto by the Council of the
League of Nations in the instrument instituting the Mandate, an instrument
issuing from the Council, cannot affect the character of that instrument
itself. It is an instrument issuing from an international authority, an act
done in virtue of powers conferred upon that international authority by
Article 22 of the Covenant, one which lays down the legal rules binding as
between States Members of the League of Nations; that decision taken on 17
December 1920 by the Council of the League of Nations might, at the
appropriate time, have been regarded as among the "existing international
instruments to which Members of the United Nations may respectively be
parties", instruments to which reference is made in Article 80, paragraph 1,
of the Charter; exploration of that course might have been attempted; this
is not the time to do it. I am quite unable to accept that characterization
according to which the Mandate instrument issuing from the Council of the
League of Nations was, on 17 December 1920, a treaty.
Since I do not recognize the Mandate instrument as having the character of a
treaty, it is unnecessary for me to follow the Court in its examination of
the requirement laid down by Article 18 of the Covenant of the League of
Nations concerning the registration of treaties and of what was done in this
connection. Still less is it necessary for me, as going beyond such
concerns, to consider the differences between Article 18 of the Covenant and
Article 102 of the Charter.
The statement that the Mandate is a treaty is a very important point in the
reasoning of the Judgment. It leads easily to a finding of the substitution
of the International Court of Justice for the Permanent Court, to the
attribution to the International Court, by the operation of Article 37 of
the Statute, of certain powers conferred entirely on the Permanent Court.
This leads to a replacement of the reference in Article 7 of the Mandate to
"another Member of the League of Nations" by a reference to Members of the
United Nations; moreover this is effected not directly but by means of
interpretation. This, however, is subject to a reservation with regard to
any increase of supervision over the Mandatory which may be involved by that
replacement.
I recognize that to regard the Mandate as a treaty simplifies the task
before the Court. If the Mandate is something other than a treaty, if it is
an act of the Council of the League of Nations, legally binding on all its
Members, the question would still arise whether Article 37 of the Statute of
the Court is applicable to it, on the ground that the expression "treaty or
convention in force" is to be taken in Article 37 in a broad sense extending
to "existing international instruments to which Members of the United
Nations [p 462] may respectively be parties� in the wording adopted in
Article 80 of the Charter.
As I have said, the Court has felt able to rely on what it recognizes as the
treaty character of the Mandate established by the decision of the Council
of the League of Nations of 17 December 1920. I do not subscribe to this
interpretation. I adhere to the character of the instrument made by the
Council of the League of Nations on 17 December 1920 and thus to what
existed during the lifetime of the League of Nations and the Permanent Court
of International Justice. I have not found anything to indicate that at that
time the particular character of the Council's instrument was disputed.
I therefore confine myself to the provisions of the Mandate and hence to the
contents of Article 7.
Article 7 of the Mandate containing the jurisdictional clause, which the
Applicants rely on, deriving the substitution of the International Court for
the Permanent Court from Article 37 of the Statute, cannot be used to found
the jurisdiction of the new Court unless certain explanations to this effect
are now given. These explanations are not to be found in the Judgment
because it has understood the Mandate as constituting a treaty in itself as
of 1920 and hence during the lifetime of the League of Nations. The
explanations which I would have hoped to find in the Judgment may be sought
in a number of directions.
First of au, one explanation would be to point to the imprecision of the
terminology in the use of the expression "treaty or convention in force". In
a particular case two States may be agreed upon the use of that expression
in this sense. It could be maintained that such is the meaning of that
expression in Article 37 of the Statute of the International Court of
Justice.
Moreover; if the International Court's title to jurisdiction is sought
through the application of Article 37 of the Statute to Article 7 of the
Mandate, Article 36 should not be left aside in its entirety. That Article
makes careful provision for the ability of States to declare that they
recognize as compulsory the jurisdiction of the Court; is not the acceptance
of jurisdiction stated by the Mandatory in Article 7 of the Mandate similar,
and is that similarity not strengthened by the similarity of origin, in
1920, of these two provisions ? But what is then to be concluded from this ?
Is it that Article 36, paragraph 5, of the Statute is applicable to Article
7; is it on the contrary that nothing occurred to transfer to the
International Court jurisdiction rendered inapplicable by the disappearance
of the Permanent Court ? These are all questions which in my view should
have been dealt with in the Judgment.
Whatever course might be followed with a view to reaching a decision on the
jurisdiction or lack of jurisdiction of the Court in the present case, I
would have wished the Court to give greater attention than it has done to an
examination of the third objection. [p 463]
The Court might even have been able to do this without going into the legal
nature of the Mandate.
In examining the third objection, it would have been desirable to recall
that Judgment No. 2 of the Permanent Court of International Justice
(Mavrommatis case) held that a State, on the basis of the jurisdictional
clause of a Mandate, had capacity to exercise judicial protection of its
nationals before that Court.
It is something else which is involved in the present case. Here the
Applicant States rely on their membership of the United Nations; their
participation in United Nations supervision over the Mandatory and their
interest in the sacred trust of civilization which is the basis of the
Mandate institution; and finally, their right to protect the interests of
the populations of the territory against breaches of its obligations by the
Mandatory.
In another case the Court emphasized and set its seal upon the right of the
United Nations to exercise functional protection of its agents as against a
State, by diplomatic means. Should the Court recognize that a Member of the
United Nations has a right to exercise judicial protection for the benefit
of the peoples of the mandated territory ?
This is certainly a new question. Since the Mandate was conferred on South
Africa, and thus for almost forty years, no such claim has been made before
the Applications of the present two States. In addition, considerations of
high moral value have been adduced in favour of such judicial protection.
However, such considerations cannot disguise the fact that if they are at
the root of the Mandate, the best way of satisfying them was sought in the
selection of the Mandatory and in supervision over the Mandatory in
accordance with the provisions of the Mandate on the basis of Article 22 of
the Covenant of the League of Nations.
Is the Court right to recognize that Applicant States Members of the United
Nations are qualified to exercise such judicial protection, which they seek
to do by relying on their participation in the exercise of supervision by
the General Assembly, an organ of the United Nations of which they are
Members ? Is there anything to be gleaned on this point from municipal legal
systems or international law? Must it be found that the availability of
judicial protection is necessary for the effectiveness of the supervision to
which it was the intention of the Mandate that the Mandatory should be
subject? Did the Mandatory, by stating in Article 7 of the Mandate that it
agreed that if any dispute should arise between it and another Member of the
League of Nations, it should be submitted to the Court, thereby accept such
a novel application of judicial supervision? Is such an interpretation of
Article 7 consistent with the characteristic of compulsory jurisdiction
which is so often referred to, namely that it is based on State consent ? Is
it possible to embark on such a course, since subsequent to the replacement
of League of Nations by United Nations organs the number of States [p 464]
entitled to have recourse to this form of judicial protection substantially
increased, while no special agreement for this purpose to which the
Mandatory was a party can be advanced.
All these points have not been given sufficient attention by the Court.
Moreover, if their examination were to make for acceptance of such judicial
protection on behalf of the peoples of the mandated territory, then, having
regard to the great number and diversity of the points on which the
Applicants call the Mandatory's conduct in question, the very novel problem
of jurisdiction thus raised could not be examined except by reference to
each of those points. It is possible that the third objection could be
upheld or overruled and hence a decision taken on the jurisdiction of the
Court only after discussion of the merits of the dispute referred to the
Court.
The third objection does not seem to me to have been given adequate study;
it is naturally not for me to enter further into the details of the study
which should have been made of it.
The foregoing considerations prevent me from concurring in the operative
part of the Court's Judgment.
(Signed) Basdevant.
[p 465]
JOINT DISSENTING OPINION OF SIR PERCY SPENDER AND SIR GERALD FITZMAURICE
I
Since we find ourselves unable to concur in the decision of the Court, it is
necessary that we should state the reasons for our dissent.
The case is one of special importance. It involves not only a fundamental
question of judicial approach; it is as well one which presents quite
exceptional difficulties�a fact reflected by the narrow majority on which
the decision rests.
These difficulties are not merely technical, though these exist. They spring
rather from the fact that the case belongs to a type the outcome of which is
liable to be dominated, or at least strongly influenced, by the character of
the initial approach to it.
In order to assume jurisdiction, the Court had not only to reject all the
objections formally presented by the Respondent but also certain others.
These we shall mention in due course.
The Court has, in Our opinion, only been able do this by adopting premises
which, as will emerge from what we have to Say, largely assume beforehand
the correctness of the conclusions arrived at.
The general approach adopted by the majority of the Court in the present
case can, we think, reasonably, be described as follows�namely that it is
desirable and right that a provision for the compulsory adjudication of
certain disputes, which figures (or did figure) as part of an
institution�the Mandate for South West Africa�which is still in existence as
an institution, should not be held to have become inoperative merely on
account of a change of circumstances�provided that this change has not
affected the Physical possibility of continued performance. The present
Court exists, and is of the same general character and carries out the same
kind of functions as the tribunal (the former Permanent Court) which
originally had jurisdiction under this provision (i.e. Article 7 of the
Mandate for South West Africa). Since there still exist States (and amongst
them the Applicant States) who would have been entitled to invoke Article 7
before the changed circumstances came about, this Article must now be
interpreted as still giving them this right, notwithstanding anything [p
466] to the contrary in its actual terms, or resulting from any other
relevant factor.
It is evident that once a tribunal has adopted an approach or this nature,
its main task will be to discover reasons for rejecting the various
objections or contra-indications that may exist, or arise.
We have felt unable to adopt this approach. In Our opinion, the only correct
method of procedure is to begin by an examination of the legal elements,
with especial reference, where questions of interpretation are concerned, to
the actual language employed, and then, on the basis of this examination, to
consider what are the correct conclusions which, as a matter of law, should
be drawn from them. It is in this spirit that we have approached our task.
***
We are not unmindful of, nor are we insensible to, the various
considerations of a non-juridical character, social, humanitarian and other,
which underlie this case; but these are matters for the political rather
than for the legal arena. They cannot be allowed to deflect us from Our duty
of reaching a conclusion strictly on the basis of what we believe to be the
correct legal view. They do however lead us to draw attention to another
aspect of the matter.
A Court called upon to consider objections to its jurisdiction must exclude
from consideration all questions relating to the merits of the dispute,
unless the jurisdictional issues are so intertwined with the merits that
they cannot be considered separately, and must be joined to the merits. It
is nevertheless legitimate for a Court, in considering the jurisdictional
aspects of any case, to take into account a factor which is fundamental to
the jurisdiction of any tribunal, namely whether the issues arising on the
merits are such as to be capable of objective legal determination.
It is apparent from the Memorials in the present case, that what the Court
will principally be asked to decide on the merits is whether, in a number of
different respects, the Respondent State, as Mandatory, is in breach of its
obligation under Article 2 of the Mandate to "promote to its utmost the
material and moral well-being and the social progress of the inhabitants of
the territory...". There is hardly a word in this sentence which has not now
become loaded with a variety of overtones and associations. There is hardly
a term which would not require prior objective definition, or redefinition,
before it could justifiably be applied to the determination of a concrete
legal issue. There is hardly a term which could not be applied in widely
different ways to the same situation or set of facts, according to differing
subjective views as to what it meant, or [p 467] ought to mean in the
context; and it is a foregone conclusion that, in the absence of objective
criteria, a large element of subjectivity must enter into any attempt to
apply these terms to the facts of a given case. They involve questions of
appreciation rather than of objective determination. As at present advised
we have serious misgivings as to the legal basis on which the necessary
objective criteria can be founded.
The proper forum for the appreciation and application of a provision of this
kind is unquestionably a technical or political one, such as (formerly) the
Permanent Mandates Commission, or the Council of the League of Nations�or
today (as regards Trusteeships), the Trusteeship Council and the Assembly of
the United Nations. But the fact that, in present circumstances, such
technical or political control cannot in practice be exercised in respect of
the Mandate for South-West Africa, is not a ground for asking a Court of law
to discharge a task which, in the final analysis, hardly appears to be a
judicial one.
The above considerations, in our opinion, strongly reinforce the view which,
on other grounds, we have taken as to the third preliminary objection,
namely that disputes about the conduct of the Mandate in relation to the
"sacred trust" (as opposed to disputes about the individual statal interests
of the Members of the League under the terms of the Mandate) are not the
kind of disputes to which the compulsory adjudication clause of the Mandate
was intended to, or did, apply.
***
We now turn to the substance of the case in its present phase, which
involves the question of the competence of the Court to proceed to the
merits; and by way of introduction we would Say that Our conclusions in this
phase have been reached against the background of four major principles of
law which we believe to be fundamental to any determination of the issues
involved. They are:
1. The principle of consent as the essential condition for founding
international jurisdiction. Such consent may be given generally, in advance,
or ad hoc, and may in a proper case be held to have been given. But that it
was in fact given, and that it covers the actual case before the Court, must
be objectively demonstrated, and cannot simply be presumed.
2. The principle that rights conferred on or vested in persons or entities
in a specified capacity, or as members of a specified [p 468] class, are not
conferred on or vested in them in their personal or individual capacity, and
therefore cease to be available to them if they lose the specified capacity,
or cease to be members of the indicated class; and are equally not available
to them in a different capacity, or as members of another class.
3. The principle that provisions are prima facie to be interpreted and
applied according to their terms, where these are clear and unambiguous in
their expression of the intention of the parties, and that such terms can
only be ignored or overridden (if at all) on the basis of some demonstrably
applicable legal principle of superior authority. The principle of
interpretation directed to giving provisions their maximum effect cannot
legitimately be employed in order to introduce what would amount to a
revision of those provisions.
4. The principle that a Court of law cannot correct the past errors or
omissions of the parties, and that it is not the province of a Court to
place some of the parties in the same position as they would have been in if
they had taken action they could have taken, but did not take, and even
deliberately avoided taking.
In Our opinion, the judgment of the Court fails to give expression to these
principles, either ignoring them or advancing no adequate grounds for
departing from them�as in our view it clearly does. In the Anglo-Saxon legal
tradition there is a well-known saying that "hard cases make bad law", which
might be paraphrased to the effect that the end however good in itself does
not justify the means, where the means, considered as legal means, are of
such a character as to be inadmissible.
It is because of the foregoing considerations, and as Members of a Court
whose task it is under Article 38, paragraph I, of its Statute, "to decide
in accordance with international law", that we are unable to accept the
reasoning on which the Judgment of Court is based.
II
STATEMENT OF THE ISSUES INVOLVED
Although the issues now involved are stated in the Judgment, their real
character is not we think sufficiently brought out there, and we propose
briefly to re-state them in our own way.
The jurisdiction of the Court is fundamentally derived from Article 36,
paragraph I, of the Statute of the Court, which en-[p 469]ables the Court to
hear any cases referred to it by the parties !-i.e. jointly] or any cases
"specially provided for ... in treaties or conventions in force". But
whether in any particular case that jurisdiction can be exercised
compulsorily depends on factors lying outside this provision�for instance
the existence of a Declaration under paragraph 2 of Article 36 (the
"Optional Clause") or the terms of a provision for compulsory adjudication
by the Court contained in some treaty or convention in force. It is for this
reason that the Applicant States have invoked the jurisdiction of the Court
on the basis of the combined effect of Article 7 of the Mandate for South
West Africa and of Article 37 of the Statute of the Court. The reason for
citing the latter provision, which is really mechanistic in character, is
that the original forum for the settlement of disputes arising under Article
7 of the Mandate was the predecessor of the present Court, the former
Permanent Court of International Justice, which ceased to exist in 1946.
This latter Court was equally the forum specified in the adjudication
clauses of many other international instruments. In our view, the effect of
Article 37 of the Statute of the present Court�and its sole relevant effect
in the context of this case�was (as between the parties to the Statute) to
substitute the present Court for the former Permanent Court in all cases in
which under a "treaty or convention in force", the Permanent Court would
have had jurisdiction and would have been competent to hear and determine
the case. Its relevant portions read as follows:
"Whenever a treaty or convention in force provides for reference of a matter
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."
We draw attention to the similarity of wording between this provision and
Article 36, paragraph 1, of the Statute, in so far as each relates to
treaties and conventions in force. This has a significance we shall mention
later.
It is, however, clear that, whatever may be the correct interpretation to be
given to the phrase "a treaty or convention in force", Article 37 can, on
the face of it, only apply to adjudication clauses contained in instruments
which are in law treaties or conventions, and which also are as such, i.e.
as treaties or conventions, "in force". Only in the case of clauses figuring
in instruments fulfilling these conditions is the present Court substituted
for the former Permanent Court.
The first contention of the Respondent State is that the relevant
instrument�the Mandate for South West Africa�does not fulfil either of these
conditions, that it neither has the character of a treaty or convention nor,
if it has, is it any longer in force. [p 470]
It is evident, in any case, that Article 37, however applicable it may
otherwise be, does not and could not, standing alone, confer jurisdiction on
the Court, for on the face of it, it only applies to cases in which the
Permanent Court would have had jurisdiction. To ascertain whether this would
have been so in the present case, reference must accordingly be made to the
clause which is invoked by the Applicant States as being the one which
provided for recourse to the Permanent Court, namely Article 7 of the
Mandate for South West Africa. The relevant parts of this provision read 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...''
This provision clearly conditions the obligation in three, or perhaps four,
ways: there must be a "dispute"; this dispute must arise between the
Mandatory and "another Member of the League of Nations"; it must relate to
"the interpretation or ... application of the provisions of the Mandate";
and, finally, it must be such as "cannot be settled by negotiation". We
stress the word "cannot�.
The issues arising out of these conditions�whether as actually formulated by
the Respondent State, or as being inherent in the terminology of Article 7
(stated in the order in which it will be convenient to deal with them)�are
as follows:
1. If there is a dispute, is it a dispute between the Mandatory and "another
Member of the League of Nations��or in other words have the Applicant States
the capacity to invoke Article 7 ?
2. If the Applicants have such capacity, is there really any genuine dispute
at all between them, as such, and the Respondent State�and what ought to be
understood by a dispute for this purpose;�for instance (inter alia)are the
Applicants, as parties to the present proceedings, also parties to the real
dispute which exists?
3. If the Applicants are not only the parties to these proceedings, but also
the parties to the dispute with the Respondent State, is this dispute of the
kind to which Article 7 relates ?
4. Have there been any negotiations at all, properly speaking, with a view
to settling the particular dispute between the Applicants and the Respondent
?
5. Can it be held that the dispute "cannot" be settled by negotiation?
***
We shall consider the various issues that arise in the following order:
First�the two issues arising on Article 37 of the Statute: is there a
"treaty or convention", and if so, is it "in force" as such?
Secondly�the primary question arising on Article 7 of the Mandate, namely
have the Applicant States the capacity to invoke it ?
Thirdly�the various issues about the .existence of a dispute, genuinely
between the Applicants as such and the Respondent, and if there is one, as
to its character in relation to Article 7.
Fourthly�the various issues about negotiation-�has there been any
negotiation of the kind contemplated by Article 7, and if so can the
conclusion be drawn that the dispute "cannot" be settled by negotiation ?
These four issues or classes of issues correspond broadly, though not
identically, with the four specific preliminary objections to the
jurisdiction of the Court raised by the Respondent State.
Before we deal with them, however, we find it necessary to say something
about the relevance to these issues and objections, of the Advisory Opinion
about the status of the Mandate for South West Africa, and related matters,
which the Court gave on II July 1950.
III
THE ADVISORY OPINION GIVEN BY THE COURT IN 1950
We are most reluctant to devote any space to the 1950 Opinion, as we shall
call it FNl. We believe that Opinion was wrong in one or two important
aspects, but by no means in all. But this belief ha not affected Our views
in the present case, because we think that different issues are now
involved. We are compelled to make this clear because, in the first place,
the Judgment of the Court is partly founded on the 1950 Opinion; and
secondly, the relevance of that Opinion was much debated in the arguments of
the Parties to the present proceedings. The Applicants maintained both that
the 1950 Opinion was correct in all respects and that (though not on any
basis of res judicata) it completely and automatically governed the issues
arising in the present proceedings. The Respondent State [p 472] denied this
and also adduced material claimed to be new and such as, had it been
available in 1950, would have caused the Court to find differently. The
Applicants, in reply, denied both that the material was new, or that it
would have had any influence on the views of the Court.
---------------------------------------------------------------------------------------------------------------------FN1
This Opinion of the Court, on the first specific question submitted to it,
is divisible into three parts: that which deals with Articles 2 to 5 of the
Mandate, that which deals with Article 6, and that which deals with Article
7. Its reasoning on each of these two latter articles appears to rest upon
quite separate and distinct grounds.
---------------------------------------------------------------------------------------------------------------------
We regard most of this discussion as having been misplaced. Some of the
issues now arising (those connected with the third and fourth preliminary
objections) did not arise at all, and could not have arisen, in the course
of the 1950 proceedings, which were not, as these are, contentious
proceedings. As regards one of the central issues arising in 1950, namely
that of the status of the Mandate as an international institution, the Court
in 1950 did little more than find, on various grounds, that the dissolution
of the League of Nations had not caused the Mandate to lapse, and that
despite this dissolution, the Mandate was still in force. But the Court did
not specifically address itself to the question of the basis upon which the
Mandate was in force nor, in particular, to whether it was still in force as
a treaty or convention. In the dispositive of its 1950 Opinion, the Court
did no more, in relation to the present context, than state that by reason
of Article 37 of the Statute, the present Court was substituted for the
former Permanent Court; but both there, and in the very brief references to
Article 37, and to Article 7 of the Mandate, made in the body of the
Opinion, the Court seems to have assumed the existence of the necessary
conditions without going into that matter. The little that was said provides
no real assistance, and this was necessarily so since no jurisdictional
issue of any kind was before the Court in 1950. Assumptions apparently made
without any reasoning as to, or consideration of, the specific underlying
issues involved, in an Advisory Opinion directed chiefly to other matters
not involving any concrete jurisdictional question, clearly do not
constitute a sufficient basis on which to found jurisdiction in subsequent
contentious proceedings in which these issues are now directly raised.
In the same way we think that the 1950 finding of the Court, to the effect
that the Assembly of the United Nations was entitled to exercise the
supervisory functions of the former League Council under Article 6 of the
Mandate, is equally irrelevant to the present proceedings, which do not
involve any specific issue of "devolution", �inheritance" or "carry
over��much as these matters have been discussed in the arguments of the
parties. We repeat that the issue now before the Court is a purely
jurisdictional one. The jurisdiction of the Court could not be presumed on
any merely revolutionary basis. The existence of Article 37 is alone enough
to show that. The jurisdiction of the Court as successor to the Permanent
Court, was provided for expressly by the combined operation of .4rticles 36
and 37�-or else it does not exist at all. No one contests [p 473] that
Article 37 substitutes the present for the former Court, provided that the
conditions specified in Article 37 are fulfilled at the moment jurisdiction
is invoked. The question is are they here fulfilled? Equally no-one doubts
that Article 7 of the Mandate contains an obligation to have recourse to
adjudication, provided the conditions specified in it are fulfilled. Again
the question is, are they?
These are quite different issues, in Our opinion, from those which were
before the Court in 1950, and accordingly we shall endeavour to deal with
the jurisdictional issues in the present case entirely on their own merits.
IV
THE FIRST PRELIMINARY OBJECTION
Having regard to the view we take on the third Preliminary Objection, namely
that Article 7 was only intended to safeguard the individual interests of
League Members in the Mandated territory, conferred under the terms of the
Mandate, and did not cover disputes about the conduct of the Mandate, much
of the discussion on the first preliminary objection (as also the second)
has for us a certain unreality, since these objections are hardly
meaningful, and are in any event unnecessary, in the context of this case,
if Article 7 does not relate to the conduct of the Mandate. We therefore
discuss these objections on the assumption that it does, merely pointing out
that a great deal which is obscure regarding these objections becomes clear
on the opposite view, which is ours.
I. The burden of proof. The duty of the Court itself to be satisfied that
jurisdiction is conclusively established
In order that Our attitude as to the character of the Mandate, and in regard
to the first Preliminary Objection, should not be misunderstood, we must
begin by recalling that, since the burden of establishing the jurisdiction
of the Court lies on the party asserting it, and this must be established
conclusively, it follows that it is for the Applicants to show that the
Mandate is beyond reasonable doubt a "treaty or convention in force" for the
purposes of Articles 36 and 37 of the Statute. Moreover, quite apart from
any question of onus of proof, a duty lies upon the Court, before it may
assume jurisdiction, to be conclusively satisfied�satisfied beyond a
reasonable doubt�that jurisdiction does exist. If a reasonable doubt�and
still more if a very serious doubt, to put it no higher�is revealed as
existing, then, because of the principle [p 474]
of consent as the indispensable foundation of international jurisdiction,
the conclusion would have to be reached that jurisdiction is not
established. In short, the doubt would, according to the normal canons for
the interpretation of jurisdictional clauses, have to be resolved against
the existence of jurisdiction.
*
In what follows, we reach the conclusion that, while there may be room for
some, even considerable, argument, the better view is that the Mandate did
not have the character of a treaty or convention; that Article 7 of the
Mandate cannot properly be considered in isolation from the rest of the
Mandate as having some sort of treaty character of its own, independently of
the instrument it is embodied in; and that even if either the Mandate, or
Article 7 separately considered, had such a character, neither is any longer
in force on a treaty basis. We wish nevertheless to make it quite clear that
Our final conclusion on the first preliminary objection does not rest upon
these factors alone. It rests also upon the simple fact that no onus lies
upon the Respondent State to disprove the past and present treaty character
of the Mandate or of Article 7. The onus lies upon the Applicants of
establishing that character beyond reasonable doubt, since this goes to the
root of jurisdiction. The duty lies equally upon the Court of being
affirmatively satisfied to that effect.
In Our opinion, an examination of the record in these proceedings, and of
the oral arguments presented, shows that even on the most favourable
assessment of the considerations that can be adduced in support of the view
that the Mandate or Article 7 was and is a �treaty or convention in force",
very serious doubt�to Say the least of it�-must remain as to whether this
really is the case. On this ground alone, the first Preliminary Objection
should be held good, even if there were not more positive reasons for doing
so.
***
2. Was the Mandate a treaty or convention?
(a) Legal nature of a treaty or convention
Before considering the character of the Mandate, which will involve stating,
as briefly as we can, the salient features of the process by which it was
brought into being, there are some preliminary points of law that must be
referred to.
We do not adopt a narrow or doctrinaire view as to what is comprised by the
term "treaty or convention". We are not�or at least so we hope�guilty of the
solecisms either of supposing that treaties or conventions are only what are
actually labelled as such, or of [p 475] confusing an international
agreement as an act, with the particular instrument in which it is embodied.
We give the widest connotation to the notion of treaty or convention as
covering everything that constitutes or embodies an international agreement,
whatever its form, style or nomenclature�any agreement, formal or informal.
But while international law takes, and rightly takes, a liberal view of what
constitutes a treaty, convention or other form of international agreement,
the notion is not an unlimited one. It is not synonymous, as the Judgment of
the Court might almost lead one to suppose, with international acts and
instruments generally. Thus, in its final draft on the "Conclusion, Entry
into Force and Registration of Treaties" completed earlier this year
(Document A/CN. 4/148 of 3 July 1962), the International Law Commission of
the United Nations adopted the following definition of a treaty, with which
we associate ourselves:
" 'Treaty' means any international agreement in written form, whether
embodied in a single instrument or in two or more related instruments and
whatever its particular designation [here follows a list of some dozen
possible appellations including of course 'convention', 'agreement' and
'declaration'], concluded between two or more States or other subjects of
international law and governed by international law."
It will be seen that this concept of what constitutes a treaty, though wide,
is not a limitless one. We draw attention in particular, in the context, to
the phrases "in written form" and "concluded between two or more States or
other subjects of international 1aw� FN1 . Thus a verbal agreement, while it
might be held binding (see the Ihlen Declaration in the Eastern Greenland
case, P.C.I.J. [p 476] Reports, Series A/B, No. 53, at pp. 69 et seq.),
would not be a treaty or convention. Nor would a statement (e.g. of
intention) made, or an assurance given, in the course of, say, a speech at
an international conference or assembly, be a treaty or convention. A
declaration containing a unilateral assumption of obligations would not be
an international agreement at all, since an international agreement must be
concluded between "two or more" parties.
---------------------------------------------------------------------------------------------------------------------FN1
A subsidiary point, which we accordingly place in a footnote, is that if,
contrary to Our view, the Mandate for South West Africa would otherwise have
been in the nature of a treaty or convention, an objection to this
conclusion could be based on the character of the parties to the Mandate
agreement (if it was one). As we shall demonstrate later, the only entity
other than the Mandatory itself which could have ranked as a party would
have been the League of Nations or the Council of the League acting for it.
But it is by no means certain that in 1920 (when the Mandate was formulated)
international legal opinion would have accepted the conclusion arrived at by
the present Court in the Injuries to United Nations Servants case (Reports
1949, p. 174) that international organizations could have a legal
personality separate and distinct from that of their Members, and rank as
entities "subjects of international law". If not, then, considered in the
light of contemporaneous legal thinking, the Mandate could only have ranked
as a treaty or convention if the parties to it were States. Our view is that
the only State which could have been a party to the Mandate, if it was a
treaty or convention, was the Mandatory, and this would mean (on the above
premises) that the Mandate was not a treaty or convention at all, because
not concluded between "two or more States". We deal with this further later.
---------------------------------------------------------------------------------------------------------------------
The quasi-treaty character which "optional clause" declarations made under
paragraph 2 of Article 36 of the Statute are sometimes said to possess,
would arise solely from the multiplicity of these declarations and their
interlocking character, which gives them a bilateral or multilateral aspect.
A single such declaration, if it stood quite alone, could not be an
international agreement. Optional clause declarations are clearly not
covered by the words "treaties or conventions" in paragraph I of Article 36,
or there would have been no need for paragraph 2, except perhaps for reasons
of convenience or emphasis. If a State making a declaration of willingness
to accept the jurisdiction of the Court compulsorily for certain classes of
disputes were held thereby to have entered into a treaty or convention, a
dispute of the class specified would rank as a matter "specially provided
for" in "treaties or conventions in force" within the meaning of paragraph
I. We have already drawn attention to the similarity of wording between
Article 37 of the Statute and Article 36, paragraph 1, in the reference to
treaties or conventions in force. The term was clearly intended to mean the
same in both places, and we cannot see why it should be given a more
extended meaning in the one than in the other. This will have a further
significance when we come later to consider whether Article 7 of the Mandate
could be detached from it and considered as an isolated declaration having
treaty character.
The foregoing points involve some of the most important questions of law
arising on this part of the case. The Judgment of the Court in effect
identifies the idea of an international agreement with any act or instrument
embodying, or giving rise to, international obligations, or which contains
or involves an international �engagement". This we believe to be a fallacy,
as the above examples show, and others could be adduced. To take again the
case of unilateral engagements, these may as already mentioned have a
quasi-treaty character when they interlock with one another, or interlock
with provisions of an existing treaty (as in certain of the Minorities
cases). Otherwise they must necessarily lack the element of the bilateral or
multilateral essential to give anything treaty character.[p 477]
These are merely some examples. In brief, the assumption that it suffices if
an international obligation exists, is to beg the whole question at issue,
and to assume what has to be demonstrated; for no one has ever contested
that the Mandate gave (and so long as it continues in force as an
institution gives) rise to international obligations. But that does not of
itself make it a treaty, convention or other form of international
agreement. It cannot be too strongly emphasized that the test is not, or is
not merely, the creation of international obligations, but the character of
the act or instrument that gives those obligations their legal force. This
is the essential point which, in relation to the Mandate for South West
Africa, has to be investigated in this part of the case.
Nor, as we said earlier, and as we believe is evident, are we making the
elementary mistake of confusing or identifying the instrument embodying or
evidencing an international act, with the act itself. Although it will
frequently be convenient to speak of the instrument that embodied the
Mandate for South West Africa as "the (or as being the) Mandate", we shall
not thereby be meaning that the Mandate consists of the original piece of
paper on which it was written out in Geneva and which was deposited in the
Archives of the League of Nations on December 17, 1920. What we understand
by the Mandate is not this piece of paper, but the international act that
gave rise to it, namely, in our view, the Resolution of the Council of the
League of the same date. What has to be investigated is the nature of this
Resolution and whether it had a treaty or conventional character.
Finally, before we pass on to this investigation, we wish to refer to
evidence contemporary with Articles 36 and 37 of the Court's Statute in
order to show that, quite apart from the legal principles we have been
discussing, and others we shall come to later�as also the normal rules of
legal interpretation�it could not be permissible to read the term "treaties
or conventions" in these Articles as having a connotation more extensive
than that of international agreements; for this evidence shows that when
something wider and more inclusive than instruments of a conventional
character was intended, this could be and was indicated in terms. For
instance, Article 80, paragraph 1, of the Charter, upon which so much
reliance has been placed by the Applicants in this case, states (inter alia)
that nothing in Chapter XII of the Charter "shall be construed ... to alter
in any manner ... the terms of existing international instruments...", etc.
(italics ours). Indeed, this phrase may well have been employed in Article
80 expressly with the Mandates in mind (inter alia). Had wording similar to
that italicized in this passage been used in Articles 36 and 37, no doubt
would have existed that the Mandate was covered, whatever view might be
taken as to the character of that act or instrument. Similarly, in the
United Nations Assembly Resolution of February 12,1946, providing for the
transfer of certain [p 478] League assets and the assumption of certain
League functions, that part which related to the possible transfer of
political functions, including such functions as the supervisory functions
of the League Council under Article 6 of the Mandate (though it did not
actually transfer these, or any other political functions, nor were any
assumed by the United Nations) was styled, and referred to as "treaties,
international conventions, agreements and other instruments having a
political character" (italics ours). Here again, if some similar phrase,
such as "treaties and other international agreements and instruments", had
been employed in Article 37, no doubt would have existed.
These facts, and the principle of consent as the basis of international
jurisdiction, make it legally inadmissible as against the Mandatory to
interpret the words "treaty or convention" in Article 37 as if it had a
wider extension, and in particular as if it covered any instrument
containing an adjudication clause, irrespective of the conventional
character of that instrument. It is therefore necessary to establish
strictly that the Mandate has that character.
We recognize in this connection that it may be tempting to regard an
instrument containing an adjudication clause (particularly one worded like
Article 7�"The Mandatory agrees...", etc.) as being pro tanto of a
conventional character. We do not however think it possible or legitimate to
detach and isolate one provision of an instrument, ascribe a treaty
character to it and then, on that basis, deem a similar character to be
thereby imparted to the whole instrument. Article 7, standing on its own,
could not be a "treaty or convention" for the purposes of Article 37 of the
Statute, for an adjudication clause, standing on its own, and apart from the
context in which it occurs, is meaningless and can have no real existence.
It could not be interpreted, and certainly could not be applied in
isolation. The fact that it is in the instrument may indeed be a pointer to
the character of the latter, may afford some evidence as to the nature of
the instrument: but that is all. Moreover, it would seem that if one did
detach Article 7 from the rest of the Mandate, it would then assume the
character of a unilateral declaration involving a unilateral assumption of
obligation, since the Mandatory alone gave the undertaking. Unilateral
declarations may contain undertakings, and can certainly create valid
international obligations; but, as noted above, they do not come within the
category of treaties, conventions or other forms of international
agreements, since they have no bilateral character.
With the above explanations of Our approach in regard to some of the
principal legal factors involved in this part of the case�[p 479] others
will be left for later consideration�we proceed to a consideration of the
Mandate itself.
***
(b) The Mandate System
The various mandated territories were all territories in Africa, the Middle
East or the Pacific, sovereignty over which was renounced after the First
World War by Germany or Turkey. But before considering what became of them,
and in particular of German South West Africa, it is, we think, essential to
distinguish clearly between the Mandates System, and the individual Mandates
and their terms. Failure to do this has caused much confusion in this case.
The former (the System) was the creation of Article 22 of the Covenant of
the League of Nations. The latter, the Mandates themselves, were not. The
principal functions performed by Article 22 were (a) to specify the general
character and purposes of the System; (b) to distinguish between the various
classes of Mandates ("A", "B" and "C" as they came to be called) setting out
in broad outline what would be necessary in each type of case, in order to
safeguard the interests of the mandated territory and its inhabitants FNl;
and (c) to set up certain machinery to supervise the administration of the
individual Mandates: thus reports were to be rendered by Mandatories to the
Council of the League, and a Permanent Mandates Commission was to be
constituted to receive these reports and advise the Council "on all matters
relating to the observance of the Mandates''.
---------------------------------------------------------------------------------------------------------------------FN1
The "A" Mandates related to countries in the Middle East whose existence as
independent nations could provisionally be recognized, and which needed only
administrative advice and assistance from the selected Mandatory. The "B"
Mandates related to less advanced territories in Central Africa which might
eventually attain independence, but for the administration of which the
Mandatory must meanwhile be responsible. The "C" Mandates related to South
West Africa and certain Pacific territories which could "be best
administered ... as integral portions" of the Mandatory's territory, and
under its laws.
---------------------------------------------------------------------------------------------------------------------
But Article 22 did not itself confer any Mandates, appoint any Mandatories,
or define the terms of any Mandates. This was done aliter, as will be seen.
The remaining features of Article 22 that are of especial importance in the
present context were as follows:
(1) It indicated that the Mandates were to be exercised by the Mandatories
"on behalf of the League".
(2) It stated that the "well-being and development" of the peoples of the
Mandated territories formed "a sacred trust of civilization" [p 480] and
that "securities for the performance of this trust should be embodied in
this Covenant" (our italics).
(3) It provided (paragraph (8) of Article 22) that the "degree of authority,
control, or administration" to be exercised by any Mandatory should, "if not
previously agreed upon by the Members of the League" (our italics), be
"explicitly defined in each case by the Council" (our italics).
Before passing on to the Mandates themselves, it is convenient to comment in
particular on head (2) above. The "securities" (or guarantees or safeguards
as they are variously called) for the performance of the sacred trust were
to be embodied in the Covenant itself. The implication of this, according to
normal principles of interpretation, was that any measure, obligation, etc.,
which was not provided for in the Covenant, could not rank as, or have the
status of a "security" for the purposes of Article 22�or in other words it
could not be considered as something essential to the functioning of the
Mandates System as conceived of in Article 22. Moreover, Article 22 did not
confer on the Council of the League any authority to add to the securities
specified in that Article. The Council could, in effect, under paragraph 8
of Article 22, define the terms of particular Mandates and thereby impose
obligations on the Mandatory, but not so as to give these the status of a
"security", unless they were already specified as being securities in some
provision of the Covenant.
These "securities" were of course set out in Article 22 itself. Certain
paragraphs made provision, inter alia, for the avoidance of abuses such as
the slave trade, the arms and liquor traffic, for demilitarisation, and so
on. But the chief security or safeguard consisted in the provision made for
reporting, and for the supervisory functions to be exercised by the
Permanent Mandates Commission and the League Council.
Nowhere in Article 22, or elsewhere in the Covenant FNl, is any
corresponding provision made for what (though in our view erroneously FN2,
has been called "judicial supervision" in respect of the [p 481] conduct of
the Mandates; and the deduction must therefore be drawn that, at any rate at
this time (the period 1919-1920), provision for the compulsory adjudication
of disputes about the Mandates was not regarded as an essential element of
the system, and did not rank as a "security" for the performance of the
sacred trust of civilization within the meaning of Article 22. The argument
to the contrary rests we think on bare assertion and special pleading.
---------------------------------------------------------------------------------------------------------------------FN1
Article 14 of the Covenant provided for the establishment of a Permanent
Court of International Justice, but (apart from an advisory jurisdiction in
relation to the Council and Assembly of the League) it was to be competent
only to hear and determine disputes "which the parties thereto submit to
it". Article 14 established no compulsory jurisdiction either in respect of
Mandates or anything else. Any such compulsory jurisdiction had to be
established specially. In the case of the Mandates, an obligation on the
part of the Mandatory to submit to compulsory jurisdiction was not created
by the Covenant, but by clauses of the various individual Mandate
instruments.
FN2 In our view "supervision" is not a judicial function except where the
law specifically entrusts a supervisory function to the Courts, as mights be
the case for instance, in the domestic field, where the welfare of infants
and minors, or of persons of unsound mind is concerned. In contentious
proceedings such as alone could take place on the basis of Article 7 of the
Mandate for South West Africa, the function of the Court is to determine a
specific dispute�an eminently judicial, not supervisory function.
---------------------------------------------------------------------------------------------------------------------
We are not concerned to argue whether it would have been a good thing or not
that "judicial supervision" should have been one of the securities. Our duty
is simply to note the fact and draw the necessary legal deductions from it.
The point will recur, and of course if we are correct in our view on the
third preliminary objection, it would only be natural that a provision for
the judicial protection of the statal interests of League Members in the
Mandated territories should not figure amongst the "securities" in Article
22.
*
It will be evident from the foregoing summary of Article 22 that it was
chiefly FNl concerned with defining and describing the nature of a certain
trust, and of the system contemplated for carrying it out; with establishing
certain safeguards .to that end, in the interests of the inhabitants of the
territories concerned; and with the provision of certain machinery in that
connection. But it created no actual Mandates, and the performance by any
given Mandatory of its duties in discharge of the Mandate conferred on it,
and to be "exercised ... on behalf of the League", was to be left (see
paragraph (8) of Article 22) to the explicit definition of the authority of
the Mandatory, either by agreement between, or on the part of, "the Members
of the League", or, in default of such agreement, by the Council of the
League acting as such.
---------------------------------------------------------------------------------------------------------------------FN1
i.e. apart from "Equal opportunities for the trade and commerce" of Members
of the League, which were reserved in the case of the "B" Mandates,
missionary rights, etc.
---------------------------------------------------------------------------------------------------------------------
We therefore turn now to consider how, and in what manner and form, this
explicit definition (which constituted the individual Mandate) was effected.
We shall of course be doing so with reference to the case of the Mandate for
South West Africa, but it should be noted that the method and form adopted
(namely, a Resolution of the League Council) was exactly the same in the
case of all the various Mandates, of whatever category, with the single
exception of that for Iraq which, significantly enough and for special
reasons, took the form of an actual and undoubted treaty (or treaties)
between His Britannic Majesty and the King of Iraq. The importance of the
uniform method of creation of all the other Mandates was that there was
nothing in it peculiar to the case of South West Africa. Had the other
Mandates been created by [p 482] acts or instruments that unquestionably
were and took the form of international agreements, it might have been
argued that the difference in the case of the Mandate for South West Africa
was merely accidental or fortuitous, and that there being no real difference
of kind between it and other Mandates (at any rate so far as the "C"
category went, to which South West Africa belonged), it also should be held
to be of the same nature, and equally to have treaty character. But this was
not the situation.
***
(c) The framing of the Mandate for South. West Africa
The initial steps (we shall not go into a lot of back history) leading to
the issuing or promulgation of the Mandate for South West Africa were as
follows:
I. The various Mandatories for the ex-German territories in Africa and the
Pacific were nominated by the five Principal Allied and Associated Powers of
the First World War, the United States of America, the British Empire,
France, Italy and Japan (hereafter sometimes called the "Principal Powers"),
in whose favour sovereignty over these territories was renounced by Germany
under Article 119 of the Treaty of Versailles. It was basically they who
decided to deal with these territories by placing them under Mandate as a
sacred trust for civilization FNl, though the System itself, as has been
seen, was the creation of Article 22 of the League Covenant.
---------------------------------------------------------------------------------------------------------------------FN1
For this reason, and as having taken the cession from Germany, it may be
that, in that capacity, though not (as will be seen) as parties to the
Mandates, the Principal Powers retained, and may still retain on a dormant
basis, a residual or reversionary interest in the actual territories
concerned except where these have attained self Government or independence.
---------------------------------------------------------------------------------------------------------------------
2. The actual transfer of the territories to the various Mandatories, in
their capacity as such, was provided for by Article 3-57 of the Treaty of
Versailles; but already before that Treaty was signed on June 28, 1919, a
decision of the Supreme War Council, made and published by it early in May
of that year, had designated the various Mandatories, and amongst them the
Union of South Africa in respect of South West Africa; in point of fact the
Respondent accepted the Mandate the same month. This decision of the Supreme
War Council was confirmed in August of the same year. But even before that,
most of the mandated territories (including South West Africa) were being
administered by the future mandatories on a basis of military occupation
resulting from the operations of the War. This point was stressed by Lord
Balfour in the Council of the League when he subsequently said "Remember
that a Mandate is a self-imposed limitation by the conquerors [of rights] [p
483] which they obtained over conquered territories. It is imposed by the
Allied and Associated Powers themselves in the interests of what they
conceive [to be] the general welfare of mankind; and they have asked the
League of Nations to assist them in seeing that this policy should be
carried into effect FN1." While not necessarily subscribing to all the legal
implications of this statement, it clearly tends to support the view that a
strict rather than a liberal interpretation should be placed on the consent
given by the Mandatory under Article 7.
---------------------------------------------------------------------------------------------------------------------FN1
League of Nations, Official Journal, 18th Session of the Council (1922). pp.
546-548.
---------------------------------------------------------------------------------------------------------------------
3. The Treaty of Versailles (and with it the League Covenant which formed
part of it) came into force on January 10, 1920, and it was therefore not
until then that, by virtue of Article 257, the actual transfer of the
mandated territories to the Mandatories, in their capacity as such, formally
took effect. On the same date, the Mandates System came into being under
Article 22 of the Covenant; but the actual Mandates did not appear until
much later� in the case of South West .Africa, not until December 17, 1920.
It will thus be seen that, considerably before the formal creation of the
Mandates System, and still more before the terms of the actual Mandates were
settled, the various Mandatories were in fact administering the Mandated
territories (in practice as Mandatories) on a quasi anticipatory basis.
*
The situation above described goes far, we consider, to explaining why the
eventual Mandates did not take the form of ordinary treaties. The League of
Nations as an entity was clearly closely concerned, yet its treaty making
capacity was at that time doubtful, and would certainly have been doubted.
How then could the League be brought in, in a manner that would not involve
any question of its treaty making capacity? It may in any case well have
been considered that the sudden emergence of treaties, with signatures and
ratifications and provisions for coming into force (and who precisely would
sign, and upon what would coming into force have depended ?) more than
eighteen months after the Mandatories had de facto started to function as
such, would be inappropriate, and might well give rise to legal
difficulties.
There is nevertheless evidence in the record that it had originally been
intended to create the Mandates by treaty, but this intention was abandoned
for reasons which are obscure, though they can be guessed at. We do not
however draw from this circumstance the conclusion apparently drawn by some,
that the Mandate should [p 484] nevertheless still be deemed to be what it
may originally have been intended to he�a treaty. We draw the opposite
conclusion, that in the final result it was not intended to be a treaty, or
the original intention would have been proceeded with. No other conclusion
can well be come to on any permissible process of interpretation.
As it is impossible for us within reasonable limits of space to go over all
the documentation, we propose to concentrate on one or two salient matters.
The first of these consists of a report by the Belgian representative on the
Council of the League (M. Hymans) which was adopted unanimously by the
Council on August 5, 1920. This report contained a detailed consideration of
the problems associated with the creation of the Mandates System, with a
view to securing the performance of Article 22 of the Covenant, and it is of
special importance. It stated (inter alia) that Article 22 laid down two
essential principles which applied to all peoples not able to stand by
themselves, namely:
(1) it was the sacred trust of civilization to assure the well-being and
development of these peoples;
(2) certain guarantees were stipulated to ensure the performance of this
trust, namely:
(a) the tutelage of such peoples was to be entrusted to the nations best
fitted to undertake this responsibility;
(.b) such nations were to exercise this tutelage as Mandatories and on
behalf of the League.
Pausing there, it will be noted that amongst these guarantees and securities
(as specified in this Report), there is no mention of any "judicial
supervision" to be exercised by the Permanent Court relative to the conduct
of the Mandate. We therefore have the position that in a Report which
specifically stated what (in the unanimous view of the Council, since it was
adopted unanimously) were the securities intended by the Covenant for the
performance of the trust, there was no suggestion of any kind that any
additional security was required or contemplated. In particular, for our
purposes, there was no reference in the Report to any necessity for judicial
determination of disputes relating to the conduct of the Mandate.
The same Report confirmed that the Principal Allied and Associated Powers
had already, by a decision published in May 1919, decided who were to be the
Mandatory Powers, and that the territories concerned were actually already
being administered by the Mandatory Powers to whom it was intended to
entrust them.
The Report went on to Say that draft treaties had been negotiated between
the Allied Powers principally concerned, but that the drafts had not been
published. (These drafts are to be found in [p 485] Foreign Relations of the
United States�Paris Peace Conference, Vol. IX at 649 et seq. They were in
the form of formal conventions between the Principal Allied and Associated
Powers and the Mandatory Powers.)
The Report then stated that the right to allocate the Mandates, i.e. to
appoint the Mandatory Powers, and to determine the territories over which
they would exercise authority, belonged to the Principal Allied and
Associated Powers and that this admitted of no divergence of opinion. As to
the degree of authority, control or administration, the Report suggested
that the Principal Allied and Associated Powers should "at the same time as
they acquaint us with their decisions as to the Mandatory Powers, inform us
of their proposals with regard to the terms of the Mandate to be exercised".
We stress the word "proposals".
The Report then suggested to the Council the following resolutions:
"1. The Council decides to request the Principal Powers to
(a) name the Powers to whom they have decided to allocate the Mandates
provided for in Article 22;
(b) to inform it as to the frontiers of the territories to come under these
Mandates;
(c) to communicate to it the terms and conditions of the Mandates that they
propose should be adopted by the Council from (sic) following the
prescriptions of Article 22 (italics ours).
II. The Council will take cognizance of the Mandatory Powers appointed and
will examine the draft Mandates communicated to it, in order to ascertain
that they conform to the prescription of Article 22 of the Covenant.
III. The Council will notify to each Power appointed that it is invested
with the Mandate, and will, at the same time, communicate to it the terms
and conditions."
This Report was adopted by the Council unanimously on August 5, 1920, and
the suggested resolutions were duly carried.
It was not, however, until December 13, 1920, that a proposed draft "C"
Mandates were placed before the Council of the League. The United Kingdom
representative on that day "handed in a draft Mandate proposed by the
British Government" relating to South West Africa and other "C" Mandate
territories. The Council referred the drafts to the Secretariat "to consider
the Mandate and to consult other legal experts on any points necessary� FN1.
Subject to certain alterations made by the Council of the League� to which
reference is made later�these drafts formed the basis of the Resolution of
the Council of the League of December 17, 1920, containing the Mandate for
South West Africa.
---------------------------------------------------------------------------------------------------------------------FN1
League of Nations Official Journal, 2nd Year, No. 1, p. II. 170
---------------------------------------------------------------------------------------------------------------------
[p 486]
*
The foregoing statement of the facts, in our view makes two things
abundantly clear:
1. Any intention which the Principal Allied and Associated Powers may at one
time have had to confer the Mandates, name the Mandatory Powers, define the
limits of the Mandated territories, and set out the terms of the Mandates in
a formal treaty or convention between themselves and the Mandatories, was
abandoned in favour of the procedure set out in the resolution of the
Council of the League of August 5, 1920, namely, action taken by the Council
of the League directly pursuant to Article 22 of the Covenant.
2. At a certain point, i.e. when it adopted the Resolution of August 5,
1920, and thereafter, the League Council so to speak "took charge" of the
whole operation, and what it required of the Powers was that these should
communicate to it their proposed terms for the Mandates, in order that the
Council might satisfy itself that they conformed to Article 22 of the
Covenant, and the Council would then, by its own act, give these terms the
force of law. In short the Mandates were not to take the form of treaties or
conventions between the Principal Powers and the Mandatories: they were to
take the form of a quasi-legislative act of the Council. As will be seen,
this is the form they did take, and this constitutes the decisive factor
regarding this part of the case.
***
(d) The promulgation of the Mandate
The Mandate for South West Africa, as eventually adopted by the Council of
the League and promulgated by a Council resolution of December 17, 1920, had
undergone certain alterations as a result of being referred to the
Secretariat and to "other legal experts" at the stage when it consisted of a
draft containing the proposals of the Principal Powers. These alterations,
to which we shall come presently, were accepted by the Council for the
purposes of its final resolution. They do not affect the substance of the
Mandate, but they do affect in certain highly significant respects the
jurisdictional questions under consideration in the present phase of this
case. Their chief significance, however, lies in the fact that they were
made at all, and by the Council acting as such, and as its own act�so that
the Mandate, in its final form, was the act of an organ of an international
organization, in the active exercise of powers conferred on it by its
constitution. It was not a treaty or convention between States or other
international entities and had not character as such. [p 487]
We now set out the terms of the Mandate as adopted by the League Council on
December 17, 1920, since it is not in our view possible to understand its
character without the convenience of easy reference to it. It read:�
"Mandate for German South West Africa
The Council of the League of Nations:
Whereas by Article 119 of the Treaty of Peace with Germany signed at
Versailles on June 28th, 1919, Germany renounced in favour of the Principal
Allied and Associated Powers all her rights over her oversea possessions,
including therein German South-West Africa; and
Whereas the Principal Allied and Associated Powers agreed that, in
accordance with Article 22 Part 1 (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, and have proposed that the Mandate
should be formulated in the following terms; and
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; and
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:
Confirming the said Mandate, defines its terms as follows:�
Article 1
The territory over which a Mandate is conferred upon His Britannic Majesty
for and on behalf of the Government of the Union of South Africa
(hereinafter called the Mandatory) comprises the territory which formerly
constituted the German Protectorate of South-West Africa.
Article 2
The Mandatory shall have full power of administration and legislation over
the territory subject to the present Mandate as an integral portion of the
Union of South Africa, and may apply the laws of the Union of South Africa
to the territory, subject to such local modifications as circumstances may
require.
The Mandatory shall promote to the utmost the material and moral well-being
and the social progress of the inhabitants of the territory subject to the
present Mandate. [p 488]
Article 3
The Mandatory shall see that the slave trade is prohibited, and that no
forced labour is permitted, except for essential public works and services,
and then only for adequate remuneration.
The Mandatory shall also see that the traffic in arms and ammunition is
controlled in accordance with principles analogous to those laid down in the
Convention relating to the control of the arms traffic, signed on September
10th, 1919, or in any convention amending the same.
The supply of intoxicating spirits and beverages to the natives shall be
prohibited.
Article 4
The military training of the natives, otherwise than for purposes of
internal police and the local defence of the territory, shall be prohibited.
Furthermore, no military or naval bases shall be established or
fortifications erected in the territory.
Article 5
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.
Article 6
The Mandatory shall make to the Council of the League of Nations an annual
report to the satisfaction of the Council, containing full information with
regard to the territory, and indicating the measures taken to carry out the
obligations assumed under Articles 2, 3, 4 and 5.
Article 7
The consent of the Council of the League of Nations is required for any
modification of the terms of the present Mandate.
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.
The present Declaration shall be deposited in the archives of the League of
Nations. 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.
Made at Geneva the 17th day of December, 1920." [p 489]
The differences between the Mandate as adopted on December 17, 1920, and as
it had been proposed to the Council on December 14, were as follows:�
(1) The draft as proposed on December 14, 1920, did not contain the fourth
recital of the preamble in the final text, namely:
"Whereas, by the above-mentioned 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
FN1."
------------------------------------------------------------------------------------------------------------FN1
It has been asserted that the Council's authority under Article 22 (8) was
limited to authority over territory only. We regard this as an untenable
assertion. It is meaningless to speak of administration over bare territory.
To give this, in our view, wholly artificial meaning to Article 22 (8) is to
disregard the rest of that Article and the purposes it was designed to
serve. The Council was in our view perfectly competent to subject the
Mandatory's administration of the territory and its peoples placed under
tutelage to such conditions and limitations as it thought fit in order to
carry out the purposes of Article 22, provided they were in conformity with
and not inconsistent with the terms of Article 22. In any case, and this is
the important consideration, the Council and all its Members, including of
course the Principal Powers, believed it was acting within the scope of its
authority in defining the terms of each Mandate instrument. The conduct of
all States, Members of the Council, then and since is wholly inconsistent
with any other view.
------------------------------------------------------------------------------------------------------------
This recital was added by the Council, and it brings out what might
otherwise not have been quite clear, namely that the text had not been
previously agreed by the Members of the League, and was therefore, as it had
in the circumstances to be, the act of the Council under Article 22 (8) of
the Covenant. This point, as will be seen, is material to the question
whether the Members of the League were ever individually parties to the
Mandate if it was a treaty or convention.
(2) The original December 14 draft read as follows immediately after the
preambular recitals: [The Council of the League of Nations....]
"Hereby approves the terms of the Mandate as fo1lows:�"
For this the Council substituted: [The Council..., etc.]
"Confirming the said Mandate, defines its terms as follows..."
Clearly the effect of this was to substitute for what might have been
contended to be a mere approval of pre-existing terms, something new, namely
the definition of the terms of the Mandate by the act of the Council itself
FN2.
---------------------------------------------------------------------------------------------------------------------FN2
What the Council confirmed was the conferring of a Mandate upon the
Mandatory. That had to be the act of the Principal Allied and Associated
Powers consequent upon Article 119 of the Treaty of Versailles.
---------------------------------------------------------------------------------------------------------------------
(3) The first paragraph of Article 7 of the Mandate as it appeared in the
December 14 draft had provided that the consent of the Council for any
modification of the terms of the Mandate instrument might be given by a
majority. This reference to a majority was struck out by the Council. The
significance of this, as indicative of the status of the Council in relation
to the Mandate will be considered hereafter.
(4) The second paragraph of Article 7�the critical paragraph from the point
of view of these proceedings�as originally drafted provided:
"If any dispute whatever should arise between the Members of the League of
Nations ... this dispute shall be submitted...", etc.
This was altered by the Council to read:
"The Mandatory agrees that if any dispute whatever should arise between the
Mandatory and another Member of the League...", etc.
We shall state later what were the reasons for this alteration, and shall
only mention here that they make it virtually impossible to hold the view
that if (contrary to what we think) the Mandate was a treaty or convention,
the various Members of the League were individually parties to it as such.
***
(e) The character of the Mandate as promulgated
On the face of it, the Mandate as set out in the League Council's resolution
of December 17, 1920, does not look like a treaty, convention or other form
of international agreement. In form and on the face of it, it looks like
what it purported to be�a Declaration promulgated by a resolution of the
Council of the League in the exercise of a power conferred upon it by
paragraph 8 of Article 22 of the Covenant, exercisable precisely if the
terms of the Mandate had not been "previously agreed upon by the Members of
the League". To all appearances therefore, the Mandate was a
quasi-legislative act of the League Council, carried out in the exercise of
a power given to it by the Covenant to meet a stated contingency�a power
which it was bound to exercise if the terms of the Mandate had not
previously been agreed upon by the Members of the League. This being so, the
Court must accordingly be conclusively satisfied that the Mandate has a
different character�that it is in fact an international agreement, and has
treaty character. [p 491]
We might add, what it should scarcely be necessary to Say, that the fact
that an act is done under an authority contained in an instrument which is
itself a treaty (in this case the League Covenant) does not per se give the
resulting act a treaty character. To take a familiar recent instance�under
Article 17 of the United Nations Charter the General Assembly is authorized
to approve the budget of the Organization, and the budget as approved is
binding on the Member States. It could not be contended that it is on this
account a "treaty" any more than could a resolution of the General Assembly
apportioning the expenses of the United Nations amongst its Members under
Article 17 (2) of the Charter.
All the arguments that have been advanced for the purpose of establishing
the treaty character of the Mandate seem to repose on one or both of two
assumptions. The first, which we have already discussed, is that any
instrument creating international obligations has treaty character. In
refutation of this view, we need only refer to what we have already said
under the head of "Legal nature of a treaty or convention".
The second assumption is that if an act or instrument follows upon certain
antecedent consents, this entails that it is itself an agreement. This is
not the case. We have already cited cases such as those under Article 17 of
the Charter; and we could cite numerous examples drawn from private law, of
acts which can follow upon various consents and agreements, but which are
themselves of quite a different character. Even legislative acts can follow
upon certain consents, and there may even be, and often is, a constitutional
requirement that these should have been obtained. Yet when a Head of State
issues a Decree or Order, and the latter recites (as it often does) that it
is made "by and with the consent" of his Council, or of some other body,
this does not impart even a vestige of a contractual character to the
resultant act.
Consequently, neither the fact that the Mandate created international
obligations, nor the fact that it recites in its Preamble the existence of
certain antecedent consents, is conclusive, or carries the matter much
further. Of course, there had to be an antecedent agreement between the
Principal Powers to confer a Mandate on a particular Power: and there had to
be a common understanding� call it agreement�between them as to the draft
terms of the Mandate which they would propose to the Council. Clearly the
Mandate would never have been promulgated except against a background of
some general common understanding. But this does not suffice to give it a
treaty character. The test, as we have said earlier, must be, not whether
certain background consents or understandings or agreements existed, nor
whether international obligations were created, but what was the character
of the act or instrument that gave those obligations their legal force. This
act was [p 492] in our view the resolution of the Council. From the moment
of its issue on December 17, 1920, the Mandate had the force of law.
Previous to that, whatever agreements existed, it had not.
The facts we have adduced make it clear that the resolution of the Council
cannot be regarded as an instrument simply registering and recording the
terms of an international agreement, from which agreement the rights and
obligations concerned really sprang. In the first place, this resolution, as
has been seen, specifically recited (in the fourth recital which the Council
itself introduced) that the terms had not been agreed by entities which had,
or might be thought to have, an interest in the matter. Secondly, the Record
makes it clear that, as has been seen, the Council did not simply take over
and re-issue automatically the terms proposed to it by the Principal Allied
and Associated Powers, in mere approval of an antecedent and independent
agreement, acting in effect as a "rubber stamp". As has been noted, the idea
of embodying the Mandates in ordinary treaties or conventions had been
abandoned ; and the Council, in certain significant respects already
indicated, altered the terms as proposed by the Principal Powers, and issued
these revised terms expressly as the Council's own act, in definition of the
terms of the Mandate. The mere fact that the Principal Powers agreed amongst
themselves as to what terms they would "propose" to the Council, cannot
possibly give the Mandate instrument itself treaty character. Nor can the
fact that these Powers had in 1919 agreed on the States to whom a Mandate
was to be conferred.
In these circumstances, and having regard to the form of the Mandate
instrument and to the fourth recital in the Preamble, it is not reasonably
possible to consider that the onus which lies on the Applicant States to
establish that the Mandate had a treaty character, has been discharged.
It has however been suggested that the Mandate is not all contained in the
relevant Council resolution, and that it is also partly contained in Article
22 of the Covenant, which does have a treaty character. We have already
shown that what Article 22 was concerned with was the system. In only
provided for one specific obligation to be imposed on Mandatories, namely to
render reports to the Council. But the obligation itself, so far as the
Respondent State was concerned, was imposed by Article 6 of the Mandate for
South West Africa, thus making it a self-contained instrument. The relevant
Council resolution was entitled, and has always been known, as the "Mandate
for German South West Africa"; and when, in the international field, the
Mandate for South West Africa is referred to or cited, it is to this
resolution that reference is made. That this was considered to be "the
Mandate" is apparent from the references [p 493]
contained in the resolution (e.g. in Article 2 and 7) to "the present
Mandate" FNl
---------------------------------------------------------------------------------------------------------------------FN1
Moreover, even if the Mandate could be said to have been partly contained in
Article 22 of the Covenant, the Covenant is no longer in force as a treaty
or convention and, in any case, the adjudication clause to which Article 37
of the Court's Statute must attach itself if it is to apply at all, is in
the Mandate (Article 7), not the Covenant.
---------------------------------------------------------------------------------------------------------------------
Certain subsidiary indications as to the character of the Mandate may now be
noticed. There is, to begin with, the fact that under the first paragraph of
Article 7, the terms of the Mandate could only be modified with the consent
of the League Council. This naturally was inserted in order to prevent any
attempt at modification, either unilaterally, or by agreement between the
Mandatory and some other entity or entities. It will be recalled that
initially, consent by a majority of the Council was proposed. But this was
altered by the Council so as to require consent by the whole Council. We
attach no importance to the fact that�since the Council acted by
unanimity�this alteration gave a veto to the Principal Powers as standing
Members of the Council. The effect of the alteration made by the Council was
to give each Member a veto. What the alteration introduced by the Council
makes evident is that the Mandate was regarded as being basically, as well
as formally, the act of the Council as such, whose consent as an entity was
therefore necessary for any modification of it. This provision is certainly
not consistent with the view that the role of the Council in bringing the
Mandate into being was that of a mere agent or promoter (entrepreneur) ,
utilized as a matter of convenience in order to give effect in concrete
terms to the arrangements of others, and which thereafter drops out of the
picture. Nor is the supervisory role of the Council under Article 6 of the
Mandate consistent with such a view.
*
Finally, there is the fact that the Mandate, in common with all the other
"B" and "C� Mandates, was not registered as a "treaty or international
engagement" under Article 18 of the Covenant�precursor of Article 103 of the
United Nations Charter FN2. The provision in the final paragraph of the
Mandate, for its deposit in the Archives of the League, did not amount to a
registration of it as a treaty for the purposes of Article 18. This was
merely the common form provision, which appears in almost every
international instrument, for depositing the original text either with the
headquarters gov-[p 494]ernment or, as the case may be, with the
international organization in or under the auspices of which it has been
drawn up. Indeed a glance at the terms of the System of Registration
approved by the Council in May 1920 is sufficient to establish that the
provision for deposit in the League's archives could not amount to
registration under Article 18. This is further confirmed by the fact that
none of the Mandates�with the exception only of Iraq, which for special
reasons was in the form of a treaty�ever appeared in the Treaty Series
published by the League.
---------------------------------------------------------------------------------------------------------------------FN2
This has been confirmed by official enquiry at Geneva.
---------------------------------------------------------------------------------------------------------------------
It is of course possible for an instrument in fact to be a treaty or other
international agreement despite non-registration, and therefore the
non-registration of the Mandate was not of itself conclusive as to the
latter's character. But what the fact of non-registration does conclusively
establish is how it was regarded by those concerned, i.e. that they did not
regard it as a treaty, convention or other form of international agreement.
It is reasonably certain that if those concerned had definitely regarded the
Mandate as a treaty or convention, they would have registered it under
Article 18, as the United Kingdom later registered the Mandate for Iraq.
Certainly the need for .registration, if anyone connected with the events of
1920 ever thought the Mandate instrument was a treaty or convention, could
hardly have escaped the notice of the Secretary-General. That the Mandate
instrument was not registered may not establish conclusively that it was not
an international agreement, but since it must be assumed that the Members of
the League did normally register anything they thought had that character,
non-registration is good evidence that, in the case of the Mandate, neither
the Council nor any Member of the League (or any of the Principal Powers)
thought it was FNl.
---------------------------------------------------------------------------------------------------------------------FN1
We are aware of course that in the case of Mavrommatis (P.C.I.J., Series
A/B, No. 2, at II) the parties did not dispute that the Palestine Mandate
was a treaty or convention in force. The issue was not contested, objections
to jurisdiction were based on other grounds.
---------------------------------------------------------------------------------------------------------------------
A final factor militating against the view that the Mandate had treaty
character is the difficulty of satisfactorily identifying the parties to it,
considered as a treaty or convention. This matter we shall consider in the
next section.
***
3. Is the Mandate "in force" as a treaty or convention?
(a) At what date must it be in force as such?
Since, in our view, the Mandate has not, and never did have the intrinsic
character of an international agreement, it is strictly [p 495] unnecessary
to consider whether. it is still in force, regarded as a "treaty or
convention". Nevertheless we propose to do so, because the Mandate, if not
itself an international agreement, had certain aspects on the basis of which
it may be argued that it had some conventional character. This being so, we
would not wish to rest Our view on the sole conclusion that it had
not�correct though we believe this conclusion to be.
Furthermore we think it essential to consider whether the Mandate is still
"in force" as a treaty or convention, assuming it was one, for the following
reason. The fact that the issue raised by the first Preliminary Objection is
not whether the Mandate is simply "in force", appears to have been
completely lost sight of. The issue arising on Article 37 of the Statute is
whether the Mandate is in force as a treaty or convention. For this purpose
it is not sufficient to rely on the Court's 1950 Opinion as establishing
that the Mandate is, in any case, in force on an institutional basis.
The term "in force" in Article 37 must, we think, be taken to have the same
meaning as in the reference to "treaties and conventions in force" in
Article 36, paragraph 1, of the Statute, namely in force at the date when
the Court is seized of the case by Application, this being the date when all
the elements necessary to give the Court jurisdiction must be present FNl.
---------------------------------------------------------------------------------------------------------------------FN1
The suggestion is advanced that assuming the Mandate was a treaty or
convention in force prior to the dissolution of the League, Article 37 of
the Court's Statute would have permitted a State, a Member both of the
League and the United Nations, to invoke the jurisdiction of this Court up
to the time that the League was dissolved; that once the Mandate came within
the scope of Article 37 it remained under it, and that accordingly it must
be concluded that such States continued thereafter and until today to enjoy
the right to invoke Article 7 of the Mandate.
The premises manifestly do not support the conclusion.
Article 37 of the Statute did not keep in force treaties or conventions in
force when the Statute came into operation. It goes without saying that if
at the time when the jurisdiction of the Court is invoked a treaty or
convention has come to an end, as such, whether by effluxion of time,
agreement between the parties, or for any other reason, such treaty or
convention cannot provide the ground upon which jurisdiction can be based.
---------------------------------------------------------------------------------------------------------------------
(b) Who would be the parties to the Mandate as a treaty or convention in
force?
It is, or should be, common ground that, assuming the Mandate to have been a
treaty or convention, there must have been parties to it, and that it would
have ceased to be in force as such on the disappearance of the parties,
and/or the reduction of them to below the minimum number (of two) requisite
for an agreement to be, and remain, in force as such. We do not accept the
view that a treaty can be "partyless". The present-day United Nations
trusteeships have been cited. Whether these are true agreements [p 496] (see
Articles 81 to 83 and 85 of the Charter) is not a question we are called
upon to or should express an opinion upon; this would involve an
interpretation of the relevant provisions of Chapter XII of the Charter. But
if they are agreements they certainly have parties. In 1320, however, and
under international law as it then stood, there was no such thing as an
international agreement the parties to which could not readily be
identified.
We must therefore consider the question of who were (apart from the
Mandatory itself), and who are now, the parties to the Mandate considered as
a treaty or convention: but we do not propose to examine obviously untenable
propositions such as that the inhabitants of the mandated territory were
directly or indirectly parties. There remain for consideration the Principal
Allied and Associated Powers, the individual Members of the League of
Nations, and finally the League itself or League Council.
(i) The Principal Allied and Associated Powers�It has been suggested that
the Principal Allied and Associated Powers were the parties, together with
the Mandatory. If such was the case, these Powers appear to have been
totally unaware of it for up-wards of forty years. It has already been seen
that the original idea of casting the Mandate into the form of an ordinary
treaty 3r convention was abandoned, and in our view no contractual nexus was
established or intended to be established with or between the Principal
Allied and Associated Powers on the basis, or in consequence, of the Mandate
instrument. This is evidenced not only from the facts antecedent to December
17, 1920, but also from the text of the Preamble itself, which makes it
clear that the role of the Powers was confined to naming the Mandatory, and
to proposing the terms of the Mandate for the acceptance or rejection of the
Council�terms which the Council in fact modified before issuing them as its
own act. Once the Powers had taken this action they became functus officio,
apart from such residual or reversionary rights in the mandated territory
itself as they may have retained on a dormant basis. Thenceforward, the
action was the League Council's, and if it resulted in a treaty or
convention at all, it was not one to which the Powers as such and as a group
were parties; for thenceforward (as provided by the Covenant) the Mandatory
exercised the Mandate "on behalf of the League", and the Powers disappeared
from the scene except as Members of the Council.
The absence of any contractual nexus so far as the Powers were concerned, is
further evidenced by the fact that, although the United States of America
had participated in the earlier drafting of the "C" Mandates, and in the
allocation of the Mandate for South West Africa to the Respondent State in
1919, it not only was not present at the Council Meeting of December 17,
1920�since it had [p 497] never ratified the Treaty of Versailles or become
a Member of the League�but was unaware of what had been submitted to the
Council on December 14, 1920, and dealt with by the latter three days later
FNl; or of what action the Council had taken, until after the event.
Moreover we know that in the separate treaty which the United States
concluded with Germany in Berlin in 1921, it reserved for itself all rights
and advantages set out in the Treaty of Versailles for the Principal Allied
and Associated Powers, including those in respect of the former German
colonies, and stipulated that it should not be bound by any action taken by
the League of Nations unless the United States should expressly give its
assent to such action. Whether the United States ever did expressly give its
consent to the terms of the Mandate for South West Africa does not appear.
---------------------------------------------------------------------------------------------------------------------FN1
This appears from Annexes 154, 154 a, b and c, to Proc�s-Verbaux of Meeting
of 12th Session of the Council of the League of Nations.
---------------------------------------------------------------------------------------------------------------------
*
The view that the Powers were or regarded themselves as being parties to the
Mandate (or to any of the Mandates) is equally impossible to reconcile with
their subsequent conduct, as also with certain elements of the legal
situation resulting from the Mandate instrument.
At no time subsequent to December 1920, did any of the Powers claim to be a
separate party, qua Principal Allied Powers, or to have any interest in the
conduct of the Mandate otherwise than through their membership of the League
Council. Such a claim would also have been hardly consistent, legally, with
the fact that according to paragraph I of Article 7 of the Mandate, it could
only be modified with the consent of the League Council (a similar provision
appeared in all the "B" and "C" Mandates).
This situation was no doubt masked by the fact that the Principal Powers
(minus the United States however) were themselves permanent members of the
League Council which acted by unanimity. Moreover, it is possible, though
not easy, to read paragraph I of Article 7 of the Mandate as not excluding
the necessity for other consents, additionally to the Council's. Again, it
can be contended that countries may become parties to treaties which they
have agreed shall be subject to modification without their consent, and that
this was in fact the position of the Powers in relation to the Mandate,
because of or under paragraph I of Article 7.
These are far-fetched arguments, or hypotheses (speculations really), and
the point is that there is no evidence at all to show that this was the
position, rather than the much more natural and likely hypothesis that if
the Mandate was a treaty, the other [p 498] party to it was the League
alone, or the League Council acting for it. It is quite clear that the
Council's view was that it alone was the competent authority to modify the
terms of a Mandate instrument, a view which it is evident the Principal
Allied and Associated Powers on the Council accepted. The Council on many
occasions acted on this view. It seems indisputable that the Principal
Allied and Associated Powers on the Council accepted the position that,
except in their capacity as Members of the League Council, their functions
had been completed once the Mandates had been established. There is no
evidence to suggest that any of them ever thought that their consent was
essential to any modification of a Mandate, or that this was merely because
they had waived their rights in the matter FNl.
---------------------------------------------------------------------------------------------------------------------FN1
What took place in relation to the Mandate of Iraq is we think informative.
The Mandate was conferred upon the United Kingdom by the Supreme Allied
Council at San Remo on April 25, 1920. The United Kingdom accepted the
Mandate.
Thereafter the United Kingdom entered into a series of Treaties between
itself and the King of Iraq. These or most of them were communicated to the
Council of the League. No other State was a party to these Treaties.
In a communication from the United Kingdom of September 27, 1924, to the
Council of the League�and to it alone�these Treaties were summarized and
supplemented by a statement setting out the Mandatory Powers own obligations
to the League, with regard to the application of Article 22 of the Covenant.
In this communication the United Kingdom stated that it was "willing to
agree" with the Council upon certain terms which were set out.
Amongst the undertakings given to the Council and accepted by it was one
that an annual report should be made to the satisfaction of the Council,
another to the effect that no modification of the terms of the Treaties
would be agreed to without the consent of the Council, and an adjudication
clause which in general follows the form of Article 7, paragraph 2, of the
Mandate for South West Africa. The Principal Allied and Associated Powers
were as such complete strangers to these undertakings; which were given to
the Council and to it alone.
---------------------------------------------------------------------------------------------------------------------
But whatever may have been the position in the time of the League of
Nations, the view that the Powers were (and still are now) parties to the
Mandate as a treaty or convention, would lead to even more formidable
difficulties to-day, particularly if the Court's 1950 finding that the
Mandate could be altered by agreement between the Mandatory and the United
Nations was correct-� for in the Assembly of the United Nations the
Principal Powers have no controlling vote or veto, and only three of them
are�if the United States is included�Permanent Members of the Security
Council. One can only conclude that in the absence of express provisions
producing such a result, it is not legally possible to entertain the idea
that a group of countries can be parties to a treaty which can be altered
without their consent, or even, it would seem, contrary to their wishes.
Nor is the post-1945 conduct of the Powers consistent, any more than it ever
war, with the view that they, or any of them, were parties to the various
Mandates as treaties or conventions. [p 499]
On that basis what would one make, for instance, of the passage in the
resolution of the League of April 18, 1946, which referred to the
Mandatories' intentions to continue to discharge their obligations under the
Mandates "until other arrangements have been agreed to between the United
Nations and the respective Mandato-Powers" (italics ours)?
Again, when various of the mandated territories were brought under the
Trusteeship System of the United Nations, this was done directly by the
Mandatory Power concerned, and at no time did any of the Principal Allied
and Associated Powers claim, as such, any right to be a State "directly
concerned" with the terms of trusteeship under -Article 79 of the Charter of
the United Nations.
The conclusion must be that the notion of the Principal Powers or any of
them being or ever having been parties to the Mandate, qua treaty or
convention, is too artificial and gratuitous to be accepted. It represents
little more than a rather desperate attempt to produce some entity as a
party which is still extant, and can therefore, together with the Mandatory,
be pointed to as keeping the Mandate in force today as a treaty or
convention FN1. Much the same applies to the next suggested category of
parties, to which we now address ourselves.
---------------------------------------------------------------------------------------------------------------------FN1
A variation of this theme is the view that four only of the Principal Allied
and Associated Powers were parties to the Mandate as a treaty or convention.
This variation omits the United States. This contention is, if anything,
more artificial than the major theme of which it is a variation. Its only
merit is that it seeks to overcome the difficulty created by the fact that
the United States, not being a Member of the League, was not present at the
meeting of the Council in December 1920. Otherwise the same criticisms apply
to it. The United States had of course participated in the conferring of the
Mandate and in drafting the terms proposed to the Council.
The contention in any case is quite inconsistent with the recitals to the
Council's resolution of December 17, 1920, recitals I and 2. The Principal
Allied and Associated Powers by definition under the Peace Treaty included
the United States. The United States was distinctly included in the
constantly used descriptive phrase "the Principal Allied and Associated
Powers": see Annex 154b, Minutes of 12th Session of Council of the League.
---------------------------------------------------------------------------------------------------------------------
(ii) The individual Members of the League�If the Members of the League were
parties to the Mandate in their capacity as such, there would be no problem,
for the League being dissolved, its former Members have lost that capacity
and could no longer be parties to the Mandate as Members of the League. The
question is therefore, and must be, if they were parties, were they so in
their individual capacity as separate sovereign States, still extant (as
States) today?
We think this .question can only be answered in the negative. An instrument
or "Declaration" (which was the name given to [p 500] the Council's
Resolution of December 17, 1920, embodying the Mandate) issued by and in the
name of the Council as its own act, could not bring in the Members of the
League except in their capacity as such�a capacity they no longer have. For
them to have become, and still to be, parties to the Mandates, in their
individual statal capacity, independently of their membership of the
L.eague, would have required something in the nature of the ordinary
processes of separate signatures, ratifications, full powers, etc. The whole
form and method of issue of the Mandate is hostile to the notion of the
individual Members as separate parties to it, or as having any status in
regard to it, other 'than as Members of the League and through their
participation in its activities.
But in any case, the notion of the Members as separately and individually
parties, is excluded by the express statement in the Preamble to the Mandate
(fourth recital) that the Members of the League, not having previously
agreed upon the terms of the Mandate, these were now being defined by the
Council in the exercise of the power given it to do so in such circumstances
by Article 22, paragraph 8, of the Covenant. Forty or fifty countries cannot
be separate parties to an agreement which specifically recites that they
have not agreed upon its terms. It has been suggested that the term "Members
of the League" in this fourth recital had some special, limited and
restricted meaning, not including the generality of the Members, and
confined, for instance, to the Principal Powers. If this were correct, then,
since it must be assumed that the term "Member" or "Members" of the League
had the same meaning wherever used in the Mandate, it would follow that the
term "any... Member of the League" as used in Article 7, paragraph 2, had
the same alleged special, limited and restricted meaning as in the Preamble,
and did not therefore include the Applicant States now claiming under
paragraph 2 of Article 7.
But clearly this suggestion is not correct. It was not merely a question of
the Principal Powers giving up the notion of negotiating the Mandate by
treaty or convention. The other Members of the League were extant, but they
were hardly even consulted or asked to agree. From the Summary Record of a
meeting of the Sub-Committee VI (c) of the League Assembly, the Committee on
whose business agenda the question of Mandates was placed�a meeting held as
late as December 13, 1920� it appears that the Council of the League were
already considering the draft of "A" Mandates, and would probably be
considering shortly the "B" and "C" drafts also, yet the Assembly was being
kept in the dark on what was happening. Copies only of the draft "A"
Mandates had been furnished by the Council to the Sub-Committee, but on the
strict understanding that this information was confidential and that it [p
501] must not be used. Four days later the Council promulgated the Mandate
for South West Africa.
It is therefore, we think, evident enough that the Council did not purport
to enter into any contractual engagement on behalf of the individual States
which, either at that time were, or at an'; time thereafter should become,
Members of the League. The Applicants admitted, and we think correctly
admitted, that the Council acted under the provisions of Article 22 (S) of
the Covenant, and not otherwise. The Council was doing what, in the
circumstances, it u-as under a duty to do under that Article. It was not we
think purporting to enter into any treaty obligation at all, and it
certainly was not purporting to enter into one on behalf of the individual
States, Members of the League.
Indeed, one will look in vain for any authority in the Covenant by virtue of
which the Council could enter into treaty arrangements so as to make
individual States, who were Members of the League, then or at any subsequent
time, parties to a treaty or convention. The facts equally fail to disclose
any authority given by States to the Council to act for each of them and to
enter into a treaty or convention on their behalf; and it is established
that, apart from those Members of the League, who were also Members of the
Council, all other States were ignorant beforehand of what was contained in
the Mandate.
Action taken by the Council under Article 22 (S) bound the League and its
Members not because any treaty or convention came into existence, but solely
because the League as such, and the States Members of the League, u-ere
bound in advance under the Covenant by whatever definition, of the degree of
authority, control or administration to be exercised by the Mandatory Power,
was made by the Council acting under Article 22 (8). They were bound by the
Mandate, in so far as that is relevant; but as, and through, being Members
of the League, not as actual parties to the Mandate itself. A further
indication to the same effect, is that in such provisions as Articles 5 and
7, the Mandate refers�not to the "Parties to the present Mandate", or to the
"Parties to the present Declaration", but to the "Members of the League". It
was as Members of the League, and not as parties to the Mandate, that
certain rights were conferred on them. Indeed, one of the most striking
refutations of the view that the Members of the League were ever regarded as
parties to the Mandate is to be found in the fact, noted earlier. that the
League Council, when it received the draft terms proposed by the Powers,
made an important change in paragraph o of Article 7. It changed this
provision in such a way that instead of all the Members of the League
undertaking the obligation of compulsory adjudication of disputes, the
Mandatory alone undertook it. This appears to have been done because it was
felt� and rightly felt� that ail obligation of this kind could only result
from specific consent. But had the [p 502] Members of the League been
parties to the Mandate, they would thereby have consented. Clearly they were
not considered to be parties.
Nor could it be contended that, because the Mandate conferred on the Union
of South Africa was to be exercised by it "on behalf of the League", this
made each State which was a Member of the League, into a separate party to
the Mandate instrument as a treaty or convention.
We conclude that any interest in the Mandate which the Members of the League
possessed, or any part in it as an international act which they may have
had, was solely in their capacity as Members of the League.
***
(iii) The League or League Council as $arty�From the foregoing, the
inevitable conclusion must be drawn that, all other candidates having been
eliminated, the only party to the Mandate, apart from the Mandatory (and if
the Mandate was a treaty or convention at al]), was the League itself or the
Council acting for it. This is the only conclusion consistent with the
salient facts�namely that the Mandate was the act of the Council; that the
Council defined its terms; that the Mandate was exercised �on behalf of the
League"; that except for certain specific rights given by particular
provisions of the Mandate to the "Members of the League" (in their capacity
as such, that is), all the obligations of the Mandate were owed to the
League; and that the Mandate could only be modified with the consent of the
whole Council.
The only doubt, to which we alluded earlier, is whether, at that date, an
international organization such as the League, and still more a particular
organ of it, such as the League Council, would have been regarded as having
separate international personality and treaty-making capacity. This doubt
may well have been one of the considerations which suggested the actual form
taken by the Mandate. But if so, this would merely bear out the conclusion
we came to on the first part of the first preliminary objection, namely that
the Mandate never had treaty character at all�for if all the entities that
might possibly have been parties to it, considered as a treaty or
convention, apart from the Mandatory, have to be eliminated (including the
League and its Council), the inescapable conclusion is that the Mandate was
not (as it certainly was not in form) an international agreement. [p 503]
As we suggested earlier, doubts about the treaty-making capacity of the
League and its Council, coupled with the obvious need for providing the
Council with an unimpeachable standing in the matter, and the requirements
of Article 22 (8) of the Covenant, may well have been, indeed we believe it
was, a factor in the decision to formulate the Mandate as a Resolution of
the Council, rather than as a treaty or convention between the Principal
Allied and , Associated Powers and the Mandatory.
In no other way could the Council be given its proper place. Under a treaty
or convention, even if it had made provision for the position of the League
and its Council, this position might well have been impossible to assert, in
the last resort, except through and with the co-operation of the Powers, and
of the Mandatory. Such a situation would have been wholly incompatible with
Article 22 of the Covenant, and with the whole concept of the Mandates
System.
These can only be speculations. What is quite clear is that if the Mandate
was a treaty or convention, the parties, and only parties to it, were the
Mandatory and the League or its Council. Since neither League nor Council
exist now, the number of parties is less than two, and therefore, as a
treaty or convention, the Mandate is no longer in force.
There is, further, the fact of the non-registration of the Mandate as a
treaty or convention under Article 18 of the Covenant. As previously
noticed, this is a strong indication that those concerned did not regard it
as having treaty character. But if it was a treaty or convention, as the
Applicants contend, then its non-registration as such would raise the
question, under Article 18, whether it was "binding" in its character as a
treaty or convention. If it were not, the further question would arise
whether a treaty or convention which is "not binding" is, or can be, "in
force� FN1.
---------------------------------------------------------------------------------------------------------------------FN1
Even if, as has been suggested, this should not be taken to mean more than
is provided for by Article 102, paragraph 2, of the United Nations
Charter�namely that an unregistered instrument cannot be invoked "before any
organs of the United Nations��the Court is such an organ (see Article 7,
paragraph 1, of the Charter).
---------------------------------------------------------------------------------------------------------------------
***
Conclusion on the first preliminary objection: the conditions requisite to
give the Court jurisdiction under Articles 36 and 37 of its Statute are not
fulfilled, inasmuch as the Mandate was the act of the League Council and is
not and never was a "treaty or convention" (or other form of international
agreement); or alter natively, if it was, it is no longer in force as such,
as there would now remain only one party�the Mandatory. [p 504]
V
SECOND PRELIMINARY OBJECTION
In the normal course it would be sufficient to rest upon the answer we gave
to the first objection. Since however we believe that each of the objections
raised by the Respondent stands in the way of the Court assuming
jurisdiction, we deem it our duty, in the special circumstances of the case,
to express Our views on each objection.
There are also special reasons why we should deal with the Second Objection.
Although we are satisfied that the Mandate is not a treaty or convention, in
force as such, we recognize, as we have already indicated, that the Mandate
had a certain background of consent, as indeed it had to have. We cannot, in
recognizing this, do so for the reasons, or with the consequences, adduced
in support of the Applicants' contentions. A view which, in the face of most
of the evidence, asserts that the Mandate was a treaty, and then seeks to
discount the resulting difficulties on the ground that this treaty was sui
generis or was not an ordinary agreement, confesses it seems to us a lack of
cogency. The same may be said of a view which holds the Mandate to be in
force today as a treaty or convention, but which is unable to indicate who
are now the parties to this treaty or convention, apart from the Mandatory;
or which, on the same plea of it being a special case, argues that it is
immaterial whether there are any parties or not; or which again, in
disregard of legal principle, postulates for certain States a right they
only had in a capacity they have lost.
But in any event, the Second Objection raises in a much more direct form
than the First, an issue which must always be central to any question of the
jurisdiction of the Court, namely the capacity of the Applicant States to
invoke the clause alleged to confer jurisdiction on the Court.
***
I. Importance and character of the Second Preliminary Objection
Since adjudication clauses invariably indicate what are the entities, or
classes of entity, entitled to avail themselves of the right to call for a
reference to adjudication, the basic question arising on this part of the
present case is whether the actual terms of Article 7 permit the Applicants
to invoke it; and if not, on what legal basis (if any) they can nevertheless
claim to do so. These terms, we would recall, so far as here relevant, are
that the Mandatory agrees to submit to adjudication, disputes with "any
other Member of the League of Nations". [p 505]
It is clear that Article 37 of the Statute cannot operate so as to
substitute the present Court for the former Permanent Court in a case in
which that Court could not have had jurisdiction. It does not operate so as
to increase jurisdiction. It merely substitutes for a reference to the
Permanent Court a reference to this Court. It cannot, and does not, of
itself determine whether, in the given case, that Court would in fact have
been competent. We must stress this point because, evident though it should
be, it does not seem to have been fully appreciated in the present case. A
provision like Article 37, which is not specifically directed to the case of
Mandates, and relates to a very large number of treaties and conventions of
all sorts and kinds, is quite neutral as to whether in any given case an
obligation to submit to adjudication does exist. Whether the obligation
exists in any given case, or not, depends on the adjudication clause alleged
to create it (in this case Article 7 of the Mandate) FN1, which such a
provision as Article 37 can neither add to nor alter. Failing any express
provision to that effect, and there is none, Article 37 could only operate
so as to confer on the present Court the pre-existing competence�whatever
that was� of the Permanent Court, and not so as to confer a different or
more extensive competence. Moreover Article 37 could not of itself determine
whether any competence at all existed.
---------------------------------------------------------------------------------------------------------------------FN1
It is the scope of the Mandatory's obligation to submit to adjudication
which is governed by Article 7. An unlimited obligation to submit to
adjudication is almost unheard of. Practically every adjudication clause
contains conditions and limitations of some kind. A very frequent, almost
invariable one, is a limitation as to the class of State or entity which can
invoke the clause. In the case of treaties, the right is normally restricted
to the parties to the treaty; and in the case of instruments not .of a
treaty character, framed by or under the auspices of an international
organization, the normal limitation is to States Members of the organization
concerned.
---------------------------------------------------------------------------------------------------------------------
One may accept unreservedly that the present Court is, within the limits of
Article 37, substituted to the fullest possible extent for the former
Permanent Court, to exercise any jurisdiction which that Court could, in its
day, have exercised. The question would still remain in any given case;
could the Permanent Court itself have exercised that jurisdiction? In our
view, it could not and would not have done so under Article 7 of the
Mandate, except at the instance of a Member of the League of Nations�a
quality not attaching to the present Applicants. It is, in our view, so
evident both that the present International Court cannot exercise a
jurisdiction which the former Permanent Court could not, in its day, have
exercised, and that in fact the Permanent Court could not then have assumed
jurisdiction in proceedings brought against the Mandatory by a non-Member of
the League, that little more should be necessary to be said on this part of
the case.[p 506]
In the present proceedings what the Court has done�in our view without legal
justification�is to consider the matter on the footing of what jurisdiction
the Permanent Court could and would have exercised if it was still
functioning now�that is to Say on the assumption that the League of Nations
was duly dissolved in 1946, but that the Permanent Court had survived and
was here and now sitting and hearing the present case. This is of course to
beg the whole question at issue, and to disregard the fact that Article 37
could do no more than operate so as to give the present Court jurisdiction
in a case in which the Permanent Court would have had jurisdiction. This
necessarily presupposes a case arising at a time when the Permanent Court
was in existence, for a non-existent Court can obviously have no
jurisdiction at all. If the Permanent Court was still functioning, there
would have been no need to substitute the present Court for it. If the
present Court has been substituted for the former Court, it is because the
latter was and is not any longer functioning. Hence the .jurisdiction which
the present Court "inherits" (so to speak) from the former Court is the
jurisdiction which the former Court actually was empowered to exercise when
it was functioning-�that is to Say the jurisdiction which then fell within
the scope of its competence. This did not include proceedings purported to
be brought under Article 7 by non-Members of the League, under which
category the Applicants fall.
In our view this is conclusive so far as the Second Preliminary Objection is
concerned, and strictly incontrovertible. Nevertheless, we will consider the
matter on the basis of whether the Permanent Court, if it had survived the
dissolution of the League, and were here and now sitting, would be competent
to hear and determine the Applications now before the Court.
***
What the Court is called upon to consider in this part of the case is the
claim made on behalf of the Applicant States, that although they are no
longer Members of the League, because the League itself has been dissolved,
nevertheless as former Members, that is, as States who were Members at the
date of its dissolution, they should be deemed to have retained, or still to
possess, the right to invoke Article 7.
We propose to begin by considering whether the kind of transformation or
metamorphosis involved by the Applicants' claim, as just stated, could
possibly be admitted on the actual language of Article 7, or by any
legitimate process of "interpretation" of it. We shall later consider
whether such a transformation could be postulated on the basis of any
process of presumption or implication derived from circumstances lying
outside Article 7 itself, or [p 507] on the basis of the application of some
general principle of law operating to effect such transformation.
***
2. The interpretation of Article 7
(a) The actual language of the Article
We shall assume as Our starting point something which we shall demonstrate
more fully later, namely that, in the absence of express provision to the
contrary, rights conferred on or exercise-able by a person or entity in a
specified capacity, or as a member of a specified class, cannot be exercised
in another capacity, or as a member of another class, or continue to be
exercised if the specified capacity is lost or membership of the class
ceases.
Thus, rights conferred on State A as a Member of the League, or simply on
"Members of the League" (State A happening to be or become a Member) were
not, and could not be rights conferred individually on State A as such,
which State A could thenceforth retain indefinitely, without limitation of
time, irrespective of its relationship to, or of the very existence of the
League FNl.
---------------------------------------------------------------------------------------------------------------------
FN1 Even as a matter of ordinary logic, it is clear that rights conferred
expressly on members of a class, as such, are not thereby conferred on them
as individuals.
---------------------------------------------------------------------------------------------------------------------
The fundamental issue of principle raised by the second preliminary
objection is therefore: on what grounds, if any, can States invested with
rights as, and only as, members of a class, claim those rights in their
individual capacity (no longer being members of that class, or that class
having ceased to exist), or as members of another and different class?
Lord McNair (as he now is) was the only Member of the Court in the 1950 case
who specifically considered this issue in that form, and he, in effect, set
aside the class basis of the right conferred by Article 7, holding that the
mention of membership of the League constituted only a description of the
States entitled to exercise the right, and was not a condition of its
exercise. It did not mean "so long as the League exists and they are Members
of it" (I.C.J. Reports 1950, at p. 159.) In short, his view, to paraphrase
it a little, was that a State must, of necessity, no longer be a member of a
now non-existing organization, but this did not matter so long as it could
still be identified as a State that was invested with the right when the
organization still existed.[p 508]
It is, naturally, with diffidence that we feel bound, for reasons which will
appear, to differ from this distinguished Judge. Lord McNair's opinion was
indeed an attempt, the only one which has ever been made, to reconcile such
a claim as that of the present Applicants with the actual language of
Article 7. But it appears to us to have overlooked the fact that Article 7
was never intended to apply to any particular States as States. Nobody knew
in 1920 what the exact membership of the League would be, or what it would
remain. This membership might, and did, vary periodically a good deal. It
was a shifting membership. At one time it might comprise States A, B and C;
at another A and B might have dropped out, and D and E have come in. This
kind of thing occurred from time to time. Article 7 was not intended to
apply to any of these States, A, B, C, D, or E, as such. It was intended to
apply to any State which, at any given moment was�and only if and so long as
it was�a Member of the League. It was not intended to apply otherwise.
Therefore, if Article 7 conferred a right on Ethiopia and Liberia, the
present Applicants, it was solely as a consequence of the fact that they
happened to fulfil the criterion specified, namely membership of the League.
Otherwise they would not have had this right.
Consequently there can, in Our opinion, be no doubt at all that during the
lifetime of the League, membership was a condition, and that the Permanent
Court would have held itself incompetent to adjudicate in the case of a
dispute between the Mandatory and a non-Member. An analogy is afforded by
the fact that when Germany, before she became a Member of the League,
claimed (as a Party to the Treaty of Versailles in which the Covenant and
Article 22 were embodied) to be entitled to intervene about the
administration of a former German territory under Belgian Mandate, the
German complaints were not answered by the League Council, and Belgium as
Mandatory stated that all such matters were "within the exclusive competence
of the League of Nations" FNl.
---------------------------------------------------------------------------------------------------------------------FN1
League of Nations Official Journal, VIII, pp. 316-317.
---------------------------------------------------------------------------------------------------------------------
Similarly, we entertain no doubt, and we do not think there can be any
doubt, that a country such as, for instance, Brazil, which was a Member of
the League at first, but subsequently- left it, thereupon lost its rights
under Article 7, and that the Permanent Court would have declared itself
incompetent in any proceedings brought by Brazil under that provision.
What then would be the difference in principle between such a case as
Brazil's and that of the Applicant States in these proceedings ? It may be
suggested that a difference arises out of the different [p 509] manner in
which League membership was terminated. Strictly speaking, of course, the
particular reason why the specified capacity, or membership of the specified
class is lost, is quite irrelevant. The fact alone suffices. However, we
will deal with the point. Brazil, it may be said, voluntarily and
deliberately left the League, and therefore obviously could not continue to
enjoy the same rights as before; whereas the Applicant States did not
renounce their membership �they lost it. The League came to an end, and
therefore they necessarily ceased to be members of it. But it has to be
asked, why did the League come to an end! It did not simply lapse. The
answer is, of course, that it came to an end by the act of the Applicants
themselves in joining with the other Members of the League to dissolve it.
Even if it had been the case that the League came to an end for reasons
quite outside its Members' control, and contrary to their will, the fact of
the cessation of the status and capacity of League membership would have
remained. But even this is not the case. Termination was the act of the
Members of the League themselves. Moreover, although, as the Record shows,
the case of the mandated territories was- fully considered both at San
Francisco when the United Nations was founded, and at Geneva when the League
was dissolved, no provision was made to meet the type of case which has now
arisen. For reasons which will appear later, we reject the view either that
this was due to a mere oversight, or that such provision was in fact
implicitly made in the course of the final debates at Geneva and by the
League resolution concerning mandated territories of April 18, 1946.
It seems to us, therefore, that the action of the Applicant States in
joining to bring about the cessation of their League membership was fully as
voluntary and deliberate as Brazil's; and we can only see a difference of
method between the two cases. We consider that the Applicants, by divesting
themselves of their League membership, without making provision for the
position thus created in relation to Article 7 of the Mandate, put an end to
their rights under that provision, just as completely as Brazil did.
Even if the matter is placed on the basis that the Members of the League,
whether or not actually parties to the Mandate, were granted specific
third-party or third-State rights by Article 7, the difficulty remains. Even
if there are principles of third-State law which might otherwise cause those
rights to survive, they can only survive according to their terms. The
States concerned having, by their own act, divested themselves of the
capacity in which they enjoyed these rights, can no longer claim them, even
on a third-[p 510] State basis; for no doctrine of third-State rights can
extend to enabling third States to continue to claim rights they have
themselves, in effect, renounced.
***
(b) Application of the general principles of law relative to capacity
In case the view stated above is thought to be unduly strict, we would draw
attention to the universally received general principle of law�one essential
to the orderly conduct of affairs�that rights available to a person or
entity in one capacity, do not remain available in another capacity�or if
the first capacity comes to an end� unless special arrangements have been
made to produce this result. This is constantly seen in the sphere of
private law. Trustees, administrators, curators, legal guardians, etc., have
certain particular rights appertaining to their status in these capacities.
The moment such a status ceases, rights which are attached to the status,
and do not exist independently- of it, also cease to exist. Similarly,
powers or faculties may be enjoyed in a specified capacity. A change over to
another status or capacity, or simply continued existence as an individual,
cannot carry with it the retention of rights enjoyed in a previous capacity.
In the same way, the mere fact that the Applicant States in this case
continue to exist as States; or that, instead of being Members of the
League, they are now Members of the United Nations, gives them in itself�in
the absence of special arrangements to the contrary�no right at all,
especially after they have themselves terminated their League membership, to
continue to invoke a provision available only to Members of the League.
It would hardly seem necessary to insist on such an elementary point. Yet
insist we must, since in our view it has been in substance ignored by the
Court. For instance, much has been heard in this case of what might be
called the "policing the Mandate" aspect of Article 7. But could it
seriously be suggested in every-day life that if a police force is
disbanded, its ex-members can still go on exercising their former police
functions? This would seem to be an extraordinary notion for any Court of
law to endorse. If the former Members of the League had any "police"
functions under Article 7, it was as Members of the police force which was
the League�a force now disbanded and dissolved.
Moreover�and this is not without its significance�it is not the case, even
if it were legally relevant, that the substance of the [p 511] Mandatory's
obligation would remain unaltered if this were now owed to former Members of
the League. This is because of the different consequences that may result
from a Judgment of the present Court, as compared with the Permanent Court,
having regard to Article 94, paragraph 2, of the United Nations Charter.
Whatever the comparison between that Article and Article 13 (4) of the
Covenant, it is evident that there are substantial differences between the
two Articles. It is hardly appropriate to develop these differences here; it
is sufficient to Say that in our opinion, not only are the consequences that
may flow from Article 94 (2) of the Charter different from those which could
have resulted from Article 13 (4) of the Covenant, but they could be more
onerous in character. Moreover, the Council was bound by the unanimity rule.
Furthermore, under the Covenant it was for the Council, and for it alone, to
initiate what action, if any, it would propose, whereas the effect of
Article 94 (2) of the Charter is to invest the judgments of the present
Court with a backing of possible sanctions or enforcement action at the
instance of a State in whose favour judgment has been pronounced. If,
therefore, the Mandatory is still under an obligation, by virtue of the
combined effect of Article 37 of the Statute and Article 7 of the Mandate,
it is one that, potentially, has different and more burdensome consequences
than before. Thus to say that the Mandatory is not being asked to submit to
anything more than it would have had to submit to in the days of the League
is clearly incorrect; and this situation, in Our opinion, constitutes an
absolute bar to any extension or perpetuation of the Mandatory's obligations
under Article 7, above and beyond its actual language, unless this can be
justified beyond possibility of reasonable doubt on the basis of some
applicable principle of legal interpretation or general rule of law,
particularly since it is reasonably evident, we think that it is precisely
in order to bring Article 94 of the Charter into play that the present
proceedings have been brought.
*
Since, in our view, the position is quite clear on the basis of the actual
language of Article 7, and of the ordinary law as to capacity, we turn next
to the question whether there is any applicable principle of interpretation
which would justify a different conclusion. Two may be suggested: the
principle of "maximum effect", and the principle of the "presumed intentions
of the parties".
***
(c) The principle of "maximum effect"
This principle is one which can be employed in order to give as full a scope
to a provision as is reasonably consistent with its [p 512] language, and
with the general circumstances of the case; but only if such an
interpretation would be so consistent. It cannot be employed to "re-write" a
provision in a manner positively inconsistent with, or even actually
contrary to what it says. Equally, its application must be excluded if the
circumstances are such as to evidence a complete lack of any basis for the
interpretation that would result. We shall show later, in dealing with the
facts relative to the dissolution of the League, why we think that this is
precisely what the circumstances do show. For the moment we will merely
point out what the interpretation contended for by the Applicants would
really involve, for it is Our view that before the principle of "maximum
effect" may with legal propriety be applied, one must be prepared to write
out the changes that would be required in the provision concerned, if it had
originally been drafted so as expressly to produce the effect contended for;
and having done that, to consider whether the result remains within the
bounds of what can reasonably be regarded as legitimate "interpretation", or
whether is goes beyond that, and amounts to a revision or quasi-legislative
"rectification" of the provision in question.
In the present case, the interpretation the Applicant States contend for
could have been effected expressly by changes in either Article 7 of the
Mandate or in Article 37 of the Statute. Changes in Article 7, expressed in
its terms, could only have been effected at the time when Article 7 was
drafted, and must be considered on that basis. Two possible methods may be
envisaged. One would have been to replace the phrase "another Member of the
League of Nations" by "any other State" or "any other interested State" or
"any other State which at any time is or has been a Member of the League".
We consider that the chances of the Mandatory, or for that matter any of the
Mandatories, having been willing in 1920 to accept any such sweeping
wording�even if anyone had suggested it�can be regarded as negligible.
Alternatively, the result contended for could have been achieved by adding
after the words "another Member of the League of Nations", some such phrase
as "or, should the League at any time be dissolved, any State which was a
Member at the date of dissolution". In the next following subsection we
shall give Our reasons for holding that it is quite out of the question that
any such language should have been employed in 1920.
As regards Article 37 of the Statute, what would be necessary would be to
suppose that it had contained (and to read it as containing) an additional
paragraph running somewhat as follows:
"Whenever any such treaty or convention provides for the reference to
adjudication of disputes between Members of the League of Nations, it shall,
in the event of, and notwithstanding, the dissolution of the League, be
deemed to relate to disputes between States who were Members of the League
at the date of its dissolution." [p 513]
It is Our considered opinion that those who drew up the revised Statute at
the preliminary Washington Conference of March-April 1945, and subsequently
at San Francisco, would never have taken the leap in the dark which such a
commitment would have involved, without carrying out a most careful
preliminary investigation of the treaties that might be affected, in order
to see just what such a commitment would amount to. No such investigation
was, so far as we are aware, ever carried out; and in the circumstances, we
do not believe it is possible to imply in Article 37 such additional words
as would have produced the effect contended for, as if they had been
originally included in terms.
To sum up on this point�we consider that the application of the principle of
maximum effect in the present case would involve an inadmissible degree of
rectification of the provisions concerned, altogether exceeding the bounds
of what is possible by way of legitimate interpretation. We would recall
that in the second phase of the Peace Treaties case (which had certain
marked affinities with the present one), the Court took exactly the opposite
line to the one it is now taking. Despite a finding that some of the parties
were in breach of what the Court had held to be a treaty obligation to
appoint their members of certain three-member tribunals provided for under
the Peace Treaties, the Court nevertheless rejected the view that, in the
circumstances, the relevant adjudication clause could legitimately be
interpreted so as to permit a two-member, instead of a three-member,
tribunal to function. To do that, the Court held, in a phrase which has
since become part of the common stock of international legal phraseology,
would be "not to interpret treaties but to revise them". In short, the Court
refused to rectify a provision which, on its actual terms, and in the
circumstances which had arisen, was inadequate to produce the result
contended for. It is precisely such a rectification which the Court is in
our view now effecting, and with considerably less legal" warrant than would
have existed for a rectification in the Peace Treaties case.
Another reason why extensive interpretations of Article 7 are not justified
unless there is the clearest warrant for them, is the unilateral character
of that provision. It could be invoked against, but not by, the Mandatory,
even if the latter should itself want a legal ruling on some point relating
to the Mandate arising in a dispute with another Member of the League. This
makes it all the more necessary to interpret Article 7 strictly, or at least
scrupulously.
***
[p 514] (d) The presumed intentions of the parties
We now turn to the second principle of interpretation on the basis of which
a different conclusion from the one we have come to may be urged. It has
been a major contention in this case that in the life-time of the League,
although some States might, by leaving the League, lose their right to
invoke Article 7, there always remained other States which could invoke it,
so that Article 7 could never become a dead letter. If, however, Article 7
had to be read according to its strict language now, there would�so the
argument runs�be no State which could invoke it, so that it would cease to
operate at all; this void can never have been intended by the original
framers of the Mandate, consequently it must be filled by reading Article 7
as still conferring rights on ex-Members of the League.
Since a situation in which there would be no States qualified to invoke
Article 7 could only arise by reason of the complete dissolution or break-up
of the League, this contention must presuppose either that the original
framers foresaw that possibility, or that, had they foreseen it, they would
have provided for it, and would have done so in the sense contended for by
the Applicants.
It is clear that if the framers actually foresaw the possibility, then their
failure to provide for it must have been deliberate, and therefore the
argument based on their "presumed intentions" would lead to the opposite
conclusion, namely that the void ought not to be made good by any
interpretative process.
It is, however, evident that those concerned did not foresee, and would have
refused to contemplate, a possible break-up of the League. But even
supposing them to have done so, we can see no ground on which it could
legitimately be assumed that they would have made express provision for the
continuance in force of Article 7, of the Mandatory's obligation to submit
to compulsory adjudication. If any assumption at all could be made, it would
have to be in the opposite sense, for the circumstances in which a breakup
of the League would or might occur, must necessarily have been quite
unforeseeable in 1920; and it is as certain as anything can be that none of
the Mandatory Powers (not only South Africa) would have been willing to
accept a obligation unlimited in point of time to submit to adjudication,
which would still remain operative in a situation the nature of which nobody
could predict. At that date (1920) willingness to submit to compulsory
adjudication at all was a comparative rarity, and would certainly not have
been forthcoming for an obligation of limitless duration under unknown
conditions.
What the Applicants are really asking the Court to do, is to interpret
Article 7 in the light of the presumed intentions of the [p 515] parties as
these might have been expected to be had they foreseen not only that the
League would be dissolved, but the circumstances in which this would occur,
i.e. that the League would be followed by the United Nations, that the
trusteeship system would be set up, and so on. But it is not a legitimate
process of interpretation to read a provision on the basis of presumed
intentions deduced in the light of nothing but after-knowledge. One can only
deduce intentions in the light of what the parties might reasonably have
been expected to foresee at the time, and not on what those intentions might
have been had the parties had an actual foreknowledge of the future, which
they could never in fact have had.
The time for facing, and providing for, the consequences of the break-up of
the League, so far as Article 7 was concerned, was of course not in 1920,
when the Mandate was framed, but in 1945-1946, when the League was breaking
up. However, this was not done; and we shall presently give Our reasons for
thinking that this was not due to any oversight but deliberately and for
good cause. This being so, we know of no principle which, merely because
matters have not in fact turned out as the parties, or some of them, may
have anticipated, would enable, let alone require, a Court of law to take
remedial action in the guise of some process of interpretation.
***
3. Other contentions
We have now to consider certain other contentions on the basis of which it
has been claimed that the Applicant States in this case are entitled to
invoke Article 7. These are founded on more or less extraneous
considerations, such as the situation which has now arisen in regard to the
Mandate, or the provisions of other instruments, etc. A number of these
arguments we will not deal with, partly for reasons of space, but mainly
because they do not seem to us to be legal arguments at all. They are no
more than motives or reasons for urging that it is politically desirable
that the Applicants should be allowed to invoke Article 7, and that the
Court should assume jurisdiction. This feeling, understandable though it may
be, cannot have any bearing on the legal issues involved, and these must be
our sole concern.
Another group of arguments which do have a legal character� though in our
view they are unsound�we shall not deal with because they are not
effectively relied upon by the Judgment of the Court in the present case,
although they were much discussed by the Parties in their written and oral
pleadings, and were directly or indirectly relied upon by the Court in the
1950 case�such as for instance the argument based on Article 80, paragraph
1, of the [p 516] United Nations Charter FN1 or on a supposed "carry-over"
or devolution of the functions, powers or rights of the League of Nations
and its Members in respect of mandated territories, in favour of the United
Nations and its Members.
---------------------------------------------------------------------------------------------------------------------FN1
Article 80 (1) of the Charter has nothing to do with the Court's
jurisdiction.
It has however been sought to call it in aid as follows: the Article, it is
said, "conserved" the rights of States; one of these rights was that stated
in Article 7 of the Mandate instrument; therefore the right survived the
League dissolution until the mandated territory was brought under
trusteeship.
The argument is not only inherently unsound, it ignores the words of Article
80 (1). This Article is clearly an interpretation clause, commonly called a
saving clause, of a type frequently to be found in legislative or treaty
instruments, designed to prevent Statute or Treaty provisions being
interpreted so as to operate beyond their intendment.
Such a clause does not, except in a loose and quite indefinite sense,
"conserve" any rights. It prevents the operation of the Statute or Treaty
from affecting them (whatever they are and whatever their content) except as
provided by the Statute or Treaty. Article 80 (1) does not maintain or
stabilize rights as they existed at the date of the Charter coming into
operation, nor does it insure the continuance of those rights or increase or
diminish them. It leaves them unaffected by Chapter XII of the Charter.
What Article 80 (1) does not Say is as important as what it does Say. It
does not Say that rights shall continue. It does not provide that these
rights shall not thereafter, until trusteeship agreements have been
concluded, be subject to the operation of law, or that they shall not
terminate or be extinguished by effluxion of time, failure of purpose,
impossibility of performance or for any other reason. It does not say these
rights shall not be altered or be subject to alteration even by normal legal
processes.
It is evident that the purpose of Article 80 (1) was quite different to what
has been contended and does not lend itself by any rational method of
interpretation to support the contention advanced. The sole purpose of the
Article was to prevent any provision of Chapter XII of the Charter being
construed so as to alter existing rights prior to a certain event.
---------------------------------------------------------------------------------------------------------------------
The contentions we shall deal are broadly of three kinds, based (a) on the
institutional character of the Mandate, and its survival as an institution,
if not as a treaty or convention;(b) on the allegedly essential and
necessary function performed by Article 7 in the scheme of the Mandate; and
(c) on assurances said to have been given by the Mandatory in 1946 in
anticipation of the dissolution of the League, and to have involved an
agreement to be bound by Article 7 in relation to any State which was a
Member of the League at the date of its dissolution.
*
(a) The institutional basis and effects of the Mandate
The contention advanced under this head is briefly that the admitted
survival of the Mandate as an institution necessarily implies its survival
complete and with all its parts intact, including Article 7. If, however,
Article 7 could only be invoked by Members [p 517] of the League of Nations
(now non-existent) it would for all practical purposes not have survived.
Hence any State which was a Member of the League at the time of its
dissolution must be entitled to invoke it.
This contention seems to us to involve two fallacies. The first is the view
that the survival or continued existence of an institution does necessarily
entail the survival or continued existence intact of all its parts. We will
return to this. The second is that survival can somehow operate to add
stature to the institution, so to speak, giving it an added effect, and that
a provision can survive otherwise than in accordance with its own terms. In
our opinion, Article 7 has survived only in the sense that it has not been
actually excised from the Mandate instrument, and still stands on paper as
part of the original League of Nations Resolution or Declaration of December
17, 1920. As part of the Mandate instrument, and on the basis that this
instrument is or represents a treaty or convention in force, the Court must
determine the application of Article 7 and may do so (and in our view may
only do so) by finding that, as it only gives rights to 'Members of the
League, the Applicants cannot invoke it. The Court cannot, in our view,
properly apply it in any other way, for if it still stands part of the
Mandate instrument, then by that very token it stands part of it in the same
terms as it was originally framed for purposes of insertion in that
instrument, and which have never been amended. The Court could not therefore
both rely on the continued presence of Article 7 in the Mandate instrument,
and refuse to apply it in accordance with the terms in which it figures
there.
But, correct as this is, we do not wish to rest our view on any mere
argument of logic. The substantial grounds on which we reject the contention
based on the survival of the Mandate as an institution are first, that we
regard as fallacious the view that if an institution survives, all its parts
must survive too; and secondly, that we regard as incorrect the further view
that a provision for compulsory adjudication, such as Article 7, has such a
character of inherent necessity in the context of the Mandates System, that
a continued and substantive field of application must be postulated for it,
as an essential element of the System.
As regards the first of these questions, there is in fact no principle of
international law which requires that because an instrument or institution
survives or continues in existence, it must necessarily do so with respect
to all its parts on a completely non-severable basis. The position is quite
the contrary: international law postulates no incompatibility between the
survival, or continued existence of an international agreement, organ or
institution, and a termi-[p 518] nation or cessation, on one ground or
another, of some particular part of it, or of particular functions, rights
or obligations provided for by it. This situation is indeed rather a common
one, and it quite often occurs that, for instance, an instrument remains in
force, but that some particular provision of it ceases or has ceased any
longer to be operative, because its terms have become inapplicable, or
because it is now impossible of performance, or for some other reason.
If an inspection of a particular clause shows that, although an instrument
or institution survives as such, the clause concerned is no longer possible
of performance, or can no longer be applied according to its terms (as is
the case with Articles 6 and 7 of the Mandate) then the prima facie
conclusion must be that although the instrument or institution otherwise
remains intact, that particular clause is at an end.
The only circumstances in which it might be possible to maintain the
contras., would be where the provision concerned was of so fundamental and
essential a character that the instrument or institution could not function
without it. Accordingly we must now consider whether, in the legal sense, a
character of inherent necessity attaches to Article 7 of the Mandate as to
justify its application in the manner decided upon by the Court.
***
(b) The argument from necessity
We here reach the heart of the present case, for the claimed essentiality of
Article 7 of the Mandate instrument is not only the very root from which has
grown the contention that an agreement was entered into by the Mandatory in
1946 to continue to regard Article 7 as applicable (we deal with this
later): it also provides both the root and many of the branches of most, if
not all the contentions in favour of the assumption of jurisdiction in the
case. If Article 7 is not an essential element of the Mandate, all the
arguments of any real substance presented in favour of the assumption of
jurisdiction fall to the ground. The first question therefore is how such
terms as "essential", "inherently necessary", etc., are properly to be
understood. Bare assertions of necessity unsupported by any legal criteria
are insufficient. The main ground upon which the necessary character of
Article 7 is predicated in the present case, is that it was considered
essential in the interests of the peoples who were as yet unable to stand
alone that there should be a "judicial supervision" of the discharge by the
Mandatory Power of its international obligations of the sacred trust. That
necessity, it is urged, must somehow or other be given effect to.
Having regard to the view we take on the third preliminary objection, namely
that Article 7 was not instituted for the protection [p 519] of the
inhabitants of the mandated territory at all, we obviously could not accept
any plea of necessity based on the above-mentioned ground. But even if we
took a different view about that, we should still reject this ground. Merely
to show that the provision or clause concerned is desirable, or that it is a
good thing to have it, or that it serves a useful purpose, is not enough.
Far more than that is required.
In our opinion what is required is that the provision or clause be of such a
character that the instrument, institution or system it relates to will not
function without it�quite a different thing. In general, provisions for
adjudication have not been regarded as having this character in relation to
the instruments they figure in. In rare and somewhat special cases they may
have. An example is afforded by, for instance, the 1958 Geneva Convention on
the Conservation of Fisheries on the High Seas, in which elaborate
provisions for compulsory arbitration are built into the body of the treaty
as an essential part of the method of determining what measures of
conservation on the high seas are legitimate under the Treaty. But except in
such types of case, provisions for compulsory adjudication, desirable though
they may be in principle, have never been regarded as a sine qua non of the
operation of a treaty, and any such suggestion would normally meet with
strong opposition. Their mere presence in a treaty, for which there may be a
variety of reasons, is no indication of necessity.
Equally the absence of Article 7 would have left the Mandate in no different
and no worse position than hundreds of other instruments not containing any
adjudication clause. If, instead of the Permanent Court, the Article had
provided for a reference to Arbitrators, one of whom was to be the holder of
a designated office and that office subsequently, for any reason, ceased to
exist, could it be said that the Article, being no longer capable of
performance, this would have gone to the root of the whole Mandate and thus
put an end to it. The answer clearly would be "No". In principle the same
answer should be given should the Article as framed fail of further
performance for any reason. The Mandate could still subsist without the
Article, just as it could have done if the Permanent Court had come to an
end and no successor Court had arisen.
*
A more specific ground of "necessity", heavily relied upon, is the fact that
by reason of the unanimity rule which prevailed in the Council of the League
of Nations (including, when Mandates questions were under consideration, the
vote of the Mandatory itself) the Council, in the last resort, could not
impose its own view [p 520] on the Mandatory. Since the Council could only
ask the Permanent Court for advisory opinions which would not be binding,
and since under Article 34 of the Statute of the Court, only States could
appear before the Court as litigants and obtain a binding decision,
therefore it was essential, so it is claimed, in order to protect the sacred
trust, for a Member or Members of the League to be able to invoke Article 7
and bring the dispute to the Permanent Court for adjudication.
Of all the arguments advanced in this case, this seems to us to have the
least substance. There is in our view no conceivable warrant for supposing
that it was ever intended to be a part of the Mandates System that the
Council of the League should be able to impose its own view on the
Mandatory. The existence of the unanimity rule shows the exact reverse, and
therefore proves the contrary.
Moreover, can it be seriously imagined, if it had been the intention of
those who created the System that the Council should, in the last resort, be
able to bind or coerce the Mandatory, that this would have been left to the
chance possibility that some individual Member of the League would be
willing to intervene (in a matter that in no way affected its own interests
as a State), and to espouse the cause of the Council, in the same way that
the present Applicants have done on behalf of the United Nations Assembly in
what is essentially a dispute between the Respondent State and the Assembly?
Such processes may be carried through now. They were not even thought of in
1920, and certainly were not contemplated under the Mandates System.
Article 22 of the Covenant, and Article 6 of the Mandate, provided for
reports to be rendered by the Mandatory to the League Council. The very fact
of the unanimity rule coupled with the further fact that under paragraph 5
of Article 4 of the League Covenant, the Mandatory had to participate in the
vote, shows that the system was one which was intended to be worked by a
process of discussion, negotiation, and common understanding. The whole idea
of imposing anything on the Mandatory was foreign to it.
Still more foreign to the climate of opinion of that time would have been
the idea of using individual Members of the League for the purpose. In our
opinion, as we make clear in connection with the Third Preliminary
Objection, the real object of Article 7, and the similar articles in other
Mandates, was not to enable the individual Members of the League to protect
the interests of the Council or the League vis-�-vis the Mandatory, but to
enable them to protect their own interests and those of their nationals, in
the mandated territories. Particularly in the case of the "A" and "B"
Mandates, these could be considerable. Because the Council's main concern
would not be over such interests, but would relate chiefly to the conduct of
the Mandate, vis-�-vis the inhabitants, it was considered [p 521] necessary
to give the individual Members of the League a direct and independent right
of action in the matter. Even if, however, we are wrong as to that, we
should still consider, for the reasons we have given, and others we shall
come to, that Article 7 was regarded as an incidental and in no way an
essential element of the Mandate.
*
There is yet another ground, possibly unavowed but evident enough, on which
the "necessity" of Article 7 is predicated. Looking at the matter as a whole
and in the light of its history since the dissolution of the League, it
seems to us quite clear that the Applicants (and we think the Court also)
are seeking to apply a sort of principle of "hindsight" and are basing
themselves on some doctrine of "subsequent necessity" quite unknown to
international law. What has happened is that a provision which was
originally of incidental importance and, as will be seen, practically never
used, has, because of recent events, acquired an importance, and is seen
(because of Article 94 of the Charter) to have potentialities which it did
not originally possess. In present circumstances, so it is argued, it is
only through Article 7 that any control can be achieved over the Mandatory.
This may be understandable, but it is not a valid legal argument. It no more
affords legal grounds for reading new terms into Article 7 than there would
be for claiming the rectification of a frontier in a given region because,
subsequent to the date when the frontier was fixed forty years ago, valuable
mineral deposits have been discovered in that region. Subsequent events may
affect the importance of a provision: they cannot affect its intrinsic legal
character which, by reason of the principle of "contemporaneity" in
interpretation, must be adjudged on the basis of the place the provision
occupied in the context of the system or framework it formed part of, at the
time when the latter was set up. Changes in this context may increase the
importance of the provisions concerned: they do not alter its intrinsic
legal character, or give rise to new rights in respect of it FN l.
---------------------------------------------------------------------------------------------------------------------
FN1 Many examples could be given. For instance if, in a system of
communications governed by treaty (e.g. air navigation), the use of certain
routes is subjected to the consent of the States through or over which these
routes pass, the fact that owing to climatic or other changes other routes,
the use of which is uncontrolled, become blocked or unusable, may increase
the importance of States permitting an extended use of the controlled areas.
It could not however be argued from this that such consent need no longer be
obtained. The legal character of the provisions concerned would remain
unaffected by the increased importance in the system of the subject-matter
they related to.
---------------------------------------------------------------------------------------------------------------------
[p 522] In the present case, events have increased the importance of
invoking Article 7 if it can be invoked at all. But they cannot create a
legal right to invoke it which did not previously exist, or impart to it a
legal character of inherent necessity which, in the original scheme of the
Mandate, it did not have.
*
There are a number of other factors which show quite clearly that it would
be wrong to regard Article 7 as having any essential or inherently necessary
character in the scheme of the Mandate. We have already pointed out that it
did not figure as one of the "securities" or safeguards provided for in the
League Covenant, and which, according to Article 22, paragraph 1, of the
Covenant were to be provided for in the Covenant itself.' Provision was duly
made in Article 22 for reports to be rendered by the Mandatory to the League
Council and for setting up a Permanent Mandates Commission to advise the
Council. Presumably this was because an obligation to report was regarded as
being of the essence, as a necessary part of any Mandate System that was to
fulfil the objects stated in Article 22. The conclusion is inescapable that
it was not regarded as similarly necessary that the Mandatory should be
obliged to submit to adjudication, and this therefore, if it was ever
thought of at all when Article 22' of the Covenant was framed, was left to
be settled outside Article 22, in the instrument defining the terms of the
Mandate. In any case, the terms of Article 22, paragraph 1, preclude
anything not provided for in the Covenant from ranking as essential for the
functioning of the Mandate
Precisely the same position was established for, and exists in relation to
the United Nations Trusteeship System. The Charter contains elaborate
provisions for administrative supervision, the setting up of a Trusteeship
Council, etc.; but any obligation to submit to compulsory adjudication is
left for inclusion, if at all, in the individual trusteeship. "agreements".
Furthermore, while some of these embody this obligation, others do not. This
we regard as a very significant fact. Three out of the four "CH Mandates,
which were brought under the trusteeship provisions of the Charter of the
United Nations, did not contain in the respective trusteeship agreements any
comparable clause. These three were the Trusteeship Agreements for the
territories previously held by Japan under Mandate, and those which related
to New Guinea and Nauru. In none of these is there to be found any
adjudication clause.
If Article 7 was of such an essential character in the performance of the
Mandate and in order to safeguard and ensure the interests of [p 523] the
peoples of the Mandates territories, it was just as essential that similar
provisions should be inserted in the trusteeship agreements relating to
these same peoples and territories. But what is said to have been essential
the moment before placing under trusteeship, seems to have been considered
no longer so the moment after. Yet the basic principles of the Trusteeship
System were the same as those of the Mandates System.
This consideration of itself reveals, we think, the artificiality of the
claim that Article 7 was a fundamental necessity for the working of the
Mandate System.
It is sought to neutralize or explain this away by reference to the
different voting systems in the League and in the General Assembly of the
United Nations; in the former the unanimity de for all decisions, in the
latter two-thirds majority on all important questions. This, so it is
claimed, dispensed with the fundamental necessity of Article 7 as soon as a
mandate territory was brought under the Trusteeship System.
If this difference in the two voting systems could have had the significance
asserted, it would seem somewhat unusual that an Article claimed to have
been of the very essence of the Mandate System should have been discarded or
omitted from these three trusteeship agreements without a query from anyone
why it was to be dropped, and whether, if it were dropped, the safeguarding
of the "sacred trust" was likely to be affected and to what extent.
It is, we think, stretching credulity too far to accept the view (if Article
7 was so fundamentally necessary under the Mandate System) that when these
three Mandates were brought under trusteeship, repeating in the trusteeship
agreement in substance the substantive provisions of the Mandates
themselves, nothing would have been said by anyone in the General Assembly,
or that no record would remain explaining the omission. The Article was
abandoned without a word.
The explanation advanced breaks down on other grounds. The General Assembly
has no power, except on a limited number of matters, to make decisions
relating to the administration of trusteeship territories; it may only make
recommendations. One would think that if Article 7 were essential under the
Mandate System it was hardly less essential under the Trusteeship System. It
is not apparent what difference in principle would exist in this respect
between the two systems merely because of the voting procedure in the League
as compared with that applicable in the General Assembly. In either system a
trustee State could have proved recalcitrant and disregarded the views of,
in the one case the Mandates Commission and the Council of the League, and
in the other the Trusteeship Council and the General Assembly. If the need
in the former system for recourse to the Court in order to be [p 524] able
to obtain judgment against the trustee State 'in the interests of the
indigenous peoples was essential, it would seem equally essential under the
Trusteeship System.
Moreover, one of these three Mandates, namely that previously held by Japan,
was converted into a strategic trusteeship under the United States in
respect of which the General Assembly was excluded from all the functions of
the United Nations relating thereto FNl. Only the Security Council could
exercise those functions, and any "decisions" made by it would appear to be
subject to Article 27 (3) of the Charter requiring the affirmative consent
of the trustee State ��the United States itself.
---------------------------------------------------------------------------------------------------------------------FN1
Article 83 of the Charter.
---------------------------------------------------------------------------------------------------------------------
If so, the foundation of the explanation falls away. If not, we must be
prepared to believe that the Members of the Security Council when approving
this particular trusteeship agreement took it for granted�it went without
saying�that Article 27 (3) did not apply, at least to the vote of the
trustee State. We think this is wholly improbable.
Furthermore, no explanation is forthcoming why, in the remaining "C" Mandate
brought under trusteeship at the same period� that relating to Samoa�the
adjudication clause did appear, despite the fact that its necessity had, on
the Court's reasoning, disappeared.
What purpose, then, was the clause in this particular trusteeship agreement
designed to serve FN2 ? And what purpose was the same clause contained in
all the other trusteeship agreements for the territories�previously the "A"
and "B" Mandates�intended to serve, since overnight, as it were, it no
longer continued to be necessary to serve its original purpose.
---------------------------------------------------------------------------------------------------------------------FN2
It is manifest, we think, that the purpose of the adjudication clause�
whatever that purpose was�remained the same under both systems. However, as
we will establish when dealing with the third Preliminary Objection, its
purpose was not that stated by the Court. It related exclusively to the
statal individual interests conferred by the respective Mandates upon
States, Members of the League and their nationals. These were minimal in the
case of "C" Mandates but quite extensive in the case of the "A" and "B�
Mandates.
---------------------------------------------------------------------------------------------------------------------
The purpose or intent of the clause did not in our view alter. If it was not
essential under the Trusteeship System neither was it under the Mandate
System.
Finally Article 7 was not, in the Court's view, limited in its operation to
cases where the Council was unable to act and so bring the Mandatory Power
to book because of the unanimity rule. Thus, it permitted a State, not a
Member of the Council to seek a judgment against the Mandatory State even
against the wishes of the Council or indeed the majority of the Members of
the League. In the ultimate analysis the fundamental necessity of Article 7
is predicated on the eventuality of it being necessary to protect the sacred
trust even against the unanimous view of the [p 525] Council, charged, as it
was, under the Covenant itself, with the duty of supervision
In our view the fact that in three of the four trusteeship agreements in
relation to the previous "C" mandated territories�whose peoples, of all
those covered by Article 22 of the Covenant of the League, were the least
able "to stand by themselves"�did not contain this so-called fundamentally
essential judicial supervision clause, whilst in those for the much more
developed peoples (the previous "A" and "B" Mandates) the replica of Article
7 was included, is hardly consistent, to Say the least, with the thesis of
essentiality. At the barest minimum it is strong evidence against it.
A further point which may legitimately be taken into account in estimating
the degree of "necessity" to be attached to Article 7 is the extent to which
it has in fact been utilized. After all, a period of forty years is not
negligible; and while recognizing to the full the justice of Judge Read's
remark in the 1950 case, that the utility of an adjudication clause could
not be determined merely by reference to how often it was resorted to, since
its mere existence might act as a deterrent to breaches of the instrument
concerned, it nevertheless remains the fact that, if the Mavrommatis cases
are treated as basically phases of the same case, the present case is only
the second occasion in forty years on which the adjudication clause of any
Mandate has been invoked, and the first, after forty years, in the case of a
"B" or "C" Mandate. Moreover, since the Mavrommatis cases had reference to
the interests of a national of a Member of the League in the Mandated
territory concerned, the present occasion is the first on which any question
of the conduct of the Mandate in relation to the inhabitants of the Mandated
territory has been raised for judicial determination.
Perhaps more significant is the doubt as to the class of disputes covered by
Article ?�-the point raised in the Respondent's third preliminary objection.
It would surely be difficult to regard as basic, essential, inherently
necessary and non-severable, indispensable to the functioning of the
Mandate, and therefore as something which must by one means or another be
preserved and perpetuated, a provision which, even now, the Court has only
found by the narrowest of majorities to relate to the conduct of the
Mandate, rather than simply to the specific individual interests in the
Mandated territory, of the several Members of the League, and their
nationals. Such manifest uncertainty, continuing for so long, is not readily
compatible with the view that the provision concerned constitutes an
indispensible element of the system it forms part of. [p 526]
***
In our opinion the various considerations discussed above can justify only
one conclusion�that the case for viewing Article 7 as an essential and
inherently necessary part of the Mandates System has not been made out.
Consequently this plea cannot be made the basis of any right of the
Applicant States to invoke the Article.
***
(c) The alleged Agreement of April 1946
The Court comes to the conclusion that an agreement FN1 was reached among
all the Members of the League at the Assembly meeting in April 1946, to
continue the different Mandates with reference to the obligations of the
Mandatory Powers, notwithstanding the dissolution of the Organization.
---------------------------------------------------------------------------------------------------------------------FN1
The Court does not indicate whether the agreement stated to have been
arrived at was "tacit" or otherwise.
---------------------------------------------------------------------------------------------------------------------
The issue involved, is in its context whether this alleged agreement applied
to Article 7 (and the corresponding clauses in other Mandates), and if so
with what effect. As has been pointed out earlier, Article 7 involved a
unilateral undertaking on the part of the Mandatory alone to go before the
Permanent Court at the instance of other Members of the League. No amount of
"agreement" on the part of these other Members could have sufficed to
perpetuate the obligation of the Mandatory after the dissolution of the
League. What would have been required to achieve that, if sufficiently
direct, explicit and unequivocal, would have been an undertaking on the part
of the Mandatory itself from which, in all the surrounding circumstances an
agreement between itself and each and every other State then a Member of the
League may conclusively be inferred. We leave aside consideration of whether
such an agreement could be within Article 37 of the Statute, since it would
exist, if it exists at all, only from a point of time subsequent to Article
37 coming into operation. We leave aside, as well, consideration of whether
such an agreement, if established, could fall within the provisions of
Article 36 (1) of the Court's Statute, or if such an undertaking could be
regarded as an unilateral declaration under Article 36 (2) and (4) of the
Statute.
We direct and confine ourselves to the real question to be answered, namely,
did the Mandatory, either in a speech or statement, or by joining in a
League Assembly resolution, give such an undertaking in any terms which
enable it to be held that the Mandatory [p 527] clearly engaged itself to
renew or perpetuate, in relation to formed Members of the League, a
compulsory adjudication clause which, on its actual language was about to
lapse ?
Put in that way, it seems to us that the question answers itself� and in the
negative�so soon as the relevant statements and resolutions are considered.
The pronouncements relied on by the Court as regards Article 7 of the
Mandate for South West Africa are a statement made by the South African
representative at Geneva on April 9, 1946, and paragraphs 3 and 4 of the
League Assembly's resolution of 18 April, which was adopted unanimously. We
look in vain in these for anything that would have the effect contended for.
We do not find it necessary to consider the question, pertinent though it
is, of how far purely unilateral statements made in this way at
international meetings, or how far participation in any resulting
resolutions, can give rise to strictly binding legal obligations. What is
quite clear is that the League resolution of April 18, 1946, did not even
purport to impose or record any obligations. It merely took note of certain
antecedent statements of intention, as it expressly recites.
These statements, made by all the Mandatories (not only South Africa), were
made in very general and, in some cases at least, cautious and somewhat
guarded, indeed limited terms. They mention no specific obligations under
the Mandates, and in our view are no more than statements of intention made
to the League on the eve of its dissolution. Nor is the League resolution
any different.
Furthermore, it seems to us clear from the general character of the South
African statement and the use of such phraseology as "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" (italics ours), that what the Mandatory had in mind was the
actual process of the administration of the territory vis-�-vis its
inhabitants, and not collateral obligations of another kind owed to Members
of the League FNl*. For instance, we would not regard such a statement as
involving any promise to continue, after the dissolution of the League, the
commercial and [p 528] other rights reserved by the Mandates for the Members
of the League or their nationals, and we stress this because it is not
merely Article 7 and the adjudication clauses of the other Mandates that are
involved here FN1. If any provisions of this character continue in force,
they do so for other reasons, and certainly not by virtue of the type of
statement made by the South African representative (and on behalf of other
Mandatory Powers) at Geneva.
---------------------------------------------------------------------------------------------------------------------FN1*
This is borne out when the statement as a whole is read, part of which (in
its context) might be emphasized namely the words: "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."
FN1 Indeed it is open to argument whether all the provisions of the Mandate
instruments were consistent with the provisions of the Charter of the United
Nations by the terms of which most States Members of the League were already
bound.
---------------------------------------------------------------------------------------------------------------------
Exactly the same picture emerges from the final League resolution of April
18, 1946. Its concluding paragraph refers to "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 in the respective
mandates, until other arrangements have been agreed...", etc. (italics
ours).
Coupled with earlier' references to the coming dissolution of the League in
this and the statements of the various Mandatories FN2*, all this could be
regarded almost as a recognition that, upon this dissolution, the Mandates,
as such, would cease to be in force, but that, pending other arrangements,
the territories concerned would, in relation to their inhabitants, continue
to be administered as if the Mandates were still in force, or on the same
basis as that of the Mandates. What the League was concerned with was not
specific obligations owed by Mandatories to States nor the rights or
interests of States or their nationals but with the interests of the
indigenous [p 529] peoples, and to be assured of "the continued application
of the principles of the Mandate? System" FNl.
---------------------------------------------------------------------------------------------------------------------FN2*
It will be useful to summarize the manner in which each of the other
Mandatory Powers present stated their intentions as to the future observance
by them of their obligations (the italics are ours). Thus, Great Britain
stated its intention was to continue to administer "in accordance with the
general principles of the existing Mandates"; France that it intended "to
pursue the execution of the mission entrusted to it"; Belgium that it would
remain fully alive to the obligations devolving upon Members of the United
Nations under Article 80 of the Charter; New Zealand that the dissolution of
the League did not diminish her obligations "to the inhabitants of the
territory ... [which] would continue to be administered in accordance with
the terms of the Mandate for the promotion and advancement of the
inhabitants"; whilst Australia stated that the League's dissolution would
"not be regarded by it as lessening the obligations imposed on it" by the
Mandates System, which it regarded as having full force and effect.
Moreover, when on 12 April 1946 the draft resolution was in the committee
stages and adopted for submission to the Assembly of the League, the
representative of France (no one in any sense expressing any other view)
stated that its territories would continue to be administered in the spirit
of the Covenant and of the Charter.
FN1 See statement of representative of China when presenting the draft
resolution in Committee, L. of N., O. J., Spec. Sup. at p. 79.
---------------------------------------------------------------------------------------------------------------------
However that may be, it is quite clear to us that these statements and
resolutions cannot be regarded as constituting binding undertakings to
continue to apply all the provisions of the Mandate, integrally, and
irrespective of how any particular clauses would be affected by the
dissolution of the League; and we are unable to see how a Court could infer
from them an undertaking of any kind, let alone the indefinite prolongation
of a jurisdictional obligation about to lapse according to its terms. For
this, we think much more would have been required, something explicitly
directed to that obligation. It is one thing, on the basis that the
dissolution of the League might be regarded as terminating the whole
Mandates System (which is what we think those at Geneva had in mind), to
imply (on that basis) from what was said, an undertaking to continue to
apply those provisions of the Mandate which had reference to the inhabitants
of the territory, and were not, according to their terms, directly dependent
on, or harnessed to, the continued existence of the League or of League
Membership. It is quite another thing to draw similar implications where it
is not merely a matter of keeping the system as such alive, despite the
termination of the League, but of also keeping alive particular clauses,
such as Article 7, specificallg7 related to the existence of the League or
the fact of League Membership. Here we think that the limits of permissible
implication are reached. Nothing short of an undertaking specifically
directed to the clause concerned, or to the class of clause, would have
sufficed in relation to this type of provision. No such thing is to be found
in the South African statement, or in any of the statements of other
Mandatories or in the relevant League resolution. Indeed, as we have pointed
out, the explicit references to, and only to, the administration of the
territory in the interests of the inhabitants, constitutes a definite
contra-indication.
In the case of the Union of South Africa, another consideration makes this
conclusion even clearer. In both the South African statement and in the
League resolution of April 18, 1946, the references to what was intended are
stated to be in view of or pending other arrangements�in short a temporary
situation was envisaged. But it is quite clear from the express language
used in the South [p 530] African statement, that what the Union Government
had in mind were arrangements for the incorporation of the Mandated
territory in the territory of the Union; and consequently, as had already
been foreshadowed by the Union in earlier statements, that the territory
would not be, or at least was most unlikely to be, brought under the United
Nations trusteeship system. Whether this was politically or otherwise a
desirable attitude for the Mandatory to take up, is not for us to Say. The
fact is that it did so, and the legal conclusion we draw is that it is quite
inconceivable that a State which was aiming at the incorporation of the
Mandated territory in its own territory could possibly have been willing, or
be thought to have been willing, or to have been intending to imply
willingness, simultaneously to perpetuate, possibly indefinitely, an
obligation of compulsory jurisdiction which, on its term, was just about to
become inoperative.
Of course the question of Article 7 (and the corresponding provisions of
other Mandates) was never specifically raised at Geneva. Nor indeed is there
the slightest evidence that its provisions were in the minds of the
representatives of the Member States. The Court's finding on this part of
the case implicitly assumes that, had it been, the various Mandatories would
all immediately have agreed to the continuance of this obligation. We see
absolutely nothing in the record to justify, and a good deal to negative
this assumption�even in the case of Mandatories other than South Africa. In
the case of the latter, we think the inherent probabilities are so obviously
against it, as to place the matter virtually beyond discussion. The general
merits of such an attitude are not for us to pronounce upon. The legal
position is that if, in view of the dissolution of the League, any Mandatory
had been asked explicitly to agree to continue to apply Article 7 in respect
of ex-Members of the League, it was within the legal competence of any such
Mandatory to refuse�for if an obligation is about to become inoperative as,
on its own terms, Article 7 was, its renewal or perpetuation can only be by
consent. Consequently, if there are grounds (as there clearly are) for
thinking that South Africa, on an explicit raising of the matter, would in
fact have refused consent�or not improbably would have done so�then it
obviously becomes quite impossible to imply from the Union's Geneva
statement any undertaking to accept�even if such any undertaking could
otherwise be implied from those statements, which in our view it cannot be.
[p 531]
Finally, it is obvious that any undertaking to continue with the obligations
of Article 7 in relation to "ex-Members", or "former Members", of the
League, would have needed precise definition. Just what States were to be
regarded as corning within these categories (original Members, Members at
the date of dissolution, countries at any time Members, Members also Members
of the United Nations, etc.) ? The moment the League was dissolved, there
would evidently be more than one class of State which would have at least a
possible claim to be considered. The question of what precisely are the
entities to which any obligation to have recourse to compulsory adjudication
relates (and therefore what precisely are the entities entitled to invoke
it), is always and necessarily fundamental to the scope of the obligation.
This can never be presumed: it requires to be defined or stated; and this
alone is a reason why an implied undertaking by the Mandatory in relation to
an uncertain class of beneficiary cannot be inferred from the statements and
declarations of 1946.
*
The conclusions we arrive at above as to the correct scope and
interpretation of the statements made, and the resolution adopted at Geneva
in April, 1946, are amply confirmed by certain other elements in the history
of the matter, to which we now come.
***
(d) The general treatment of the Mandates question in the period 1945-1946
The course of dealing with the question of Mandates, both in the United
Nations and in the League, during the period 1945-1946, serves to confirm
the conclusions we have arrived at in the preceding sections of this part of
the case, both generally and, more particularly, as regards the effect to be
attributed to the statements made and the resolutions adopted at Geneva in
April, 1946. It also confirms the view we have already expressed that the
failure to deal more explicitly with the question of the position of the
Mandates after the dissolution of the League, and especially the failure to
make any provision for the situation which would arise if any mandated
territory, not being one that had attained independence, was not placed
under the United Nations trusteeship system, was not per incuriam but
deliberate. [p 532]
(1) In the first place it emerges quite clearly from the record that the
whole approach of the United Nations to the question of the activities of
the League of Nations was one of great caution and indeed of reluctance. It
is crystal clear FN1 that there was a definite rejection of any idea of what
might be called a general take-over or absorption of League functions and
activities. We have already mentioned in another connection that in the
United Nations Assembly resolution providing for the transfer of certain
functions and powers of the League, and for ensuring (subject to certain
reservations) the continued exercise of its technical activities, the
subject of the League's political functions such as, inter alia, those
relating to Mandates, was dealt with quite differently. In this field the
Assembly was only willing to act upon a specific request of the parties to
assume the exercise of functions of the League, and even if such a request
were received (none ever was) the Assembly was only willing to "examine" it,
or "submit [it] to the appropriate organ of the United Nations��not exactly
an enthusiastic attitude. As stated, no such request was ever made, and no
political functions of the League were, as such, taken over or assumed FN2,
though of course in a number of ways, parallel functions were assumed by the
United Nations under its own Charter, e.g. in the sphere of peacekeeping.
---------------------------------------------------------------------------------------------------------------------FN1
See Summary Records of the Preparatory Commission of the United Nations set
up at the end of the San Francisco Conference, U.N.P.C., Committee 7, pp.
2-3 and 10-11.
FN2 This is one reason why we think that the view expressed by the Court in
its 1950 Opinion; to the effect that the supervisory functions of the former
League Council passed to the Assembly of the United Nations which was
entitled to exercise them, was definitely wrong.
---------------------------------------------------------------------------------------------------------------------
(2) The United Nations did not therefore take over the League Mandates
system as such, or any specific functions in connection with it. On the
other hand, this was one of the matters which was "paralleled" in the
Charter, namely by the institution of the United Nations trusteeship system
(Chapters XII and XIII), and by the other provisions in the Charter relating
to non-self-governing territories (Chapter XI and Article 73).
(3) In short�and we wish to stress this�there was from the start an election
(choice) on the part of the United Nations to deal with the question of
non-self-governing territories (a category under which we think the Mandated
territories�or at the least the "B" and "C" territories�unquestionably came)
by means of the provisions of Chapters XI, XII and XIII of the Charter, and
not by taking over, and supplementing or modernising, the League Mandates
System.[p 533]
(4) This was a deliberate policy, as is shown by a number of things. One of
the most striking is the fact that, as the Court confirmed in its 1950
Opinion, those who framed the Charter created no obligation under it for
Members of the United Nations administering Mandated territories to bring
these into the trusteeship system. The San Francisco Conference did, on the
other hand�and this again we stress�by means of Chapter XI of the Charter
(and more particularly by Article 73 which we shall consider later) create a
position which, according to our view of it, involved that any Mandated
territory not placed under trusteeship must be dealt with by the Mandatory
as a non-self-governing territory under Article 73 of the Charter, in
respect of which the obligations (including the reporting obligations) of
that provision must be carried out.
(j) It is clear that the Members (or prospective Members) of the United
Nations at San Francisco and thereafter, looked to the bringing into
trusteeship of all mandated territories other than such as attained
independence. But the deliberate character of their decision (evidenced by
their conduct) not to make any provision for the possibility that this
expectation might not in every case be realised (apart of course from the
provision made by Chapter XI and Article 73), can be seen in relation to the
Mandate for South West Africa from the statement which the representative of
the Union of South Africa made on II May 1945 in Committee III4 of the San
Francisco Conference FNl. In this he indicated in the clearest possible
terms the intention of the Union to claim the incorporation of the mandated
territory in the national territory of the Union. Moreover, we see no reason
to doubt the statement made on behalf of the Respondent State (in the
written Memorial setting out its preliminary objections) to the effect that
the declaration which the Union Government made at San Francisco included
(though this does not appear on the record) an intimation that the Union
Government must not be held "to have acquiesced in the continuance of the
Mandate or the inclusion of the [mandated] territory in any form of
trusteeship under the new International Organization" FN2. The fact of this
South African Statement, which was long and extremely explicit, coupled with
the fact that Chapter XII of the Charter, despite its various references to
the mandated territories, deliberately refrained from imposing any
obligation to bring them into trusteeship, makes it impossible, we think, to
suggest there was any misapprehen-[p 534]sion, or to argue, on that ground,
that the Court should, by judicial action, make provision for a case which
the framers of the Charter did not see fit to provide for
themselves�presumably because they hoped it would not occur, or were
prepared, if it should occur, to leave to the application of Article 73 of
the Charter. The fact that, in the event, South West Africa was the only
mandated territory not brought into trusteeship, obviously cannot be a legal
ground for dealing with this territory on any different basis from that
which would have obtained if its case had been the rule and not the
exception. It cannot, in law, be a question of imposing a sanction on the
Mandatory for not having followed the same course as its fellow-mandatories
when it was under no legal obligation to do so. It can only be a question of
establishing what are the legal consequences of this, having regard to the
dissolution of the League. This brings us to our next point.
---------------------------------------------------------------------------------------------------------------------FN1
Summarily recorded in U.N.C.I.O. Docts,, Vol. 10, p. 434. The full
statement, the accuracy of which has not been challenged, and which accords
with an unofficial verbatim record in the possession of the U.N. Secretariat
is given in the Respondent's written Preliminary Objections, pp. 25-26�and
see footnote I on page 26.
FN2 See footnote I on page 26 of the Respondent's written Preliminary
Objections. It has equally not been contested that this further passage was
in fact included.
---------------------------------------------------------------------------------------------------------------------
(6) The possibility that some mandated territories might not be brought into
trusteeship was not the only one accepted by those attending the San
Francisco Conference�they also took the risk that the termination of the
League might, unless specific provision were made for this, affect the
continued applicability of particular clauses of the mandates, clauses
which, by their terms. were geared to the existence of the League and of
membership of the League. This risk they must be presumed to have run with
their eyes open, since the coming termination of the League, by one means or
another, was a political aim and intention of all those Members of the
League (including the Applicant States) who were present at San Francisco.
(7) There was a sufficient discussion of the whole question of Mandates (as
also at Geneva in April 1946, to which we shall come) to make it legitimate,
and indeed necessary, to assume that those concerned were familiar with the
various instruments of Mandate, and were aware that certain clauses of these
instruments could not, according to their terms, function or remain
operative on the same basis after the termination of the League, and the
termination of League membership, unless express provision were made to meet
the case; and accordingly that such express provision would have to be made,
or else any consequences involved would have to be accepted. But, amongst
other omissions, no provision was made to meet the fact that, after the
termination of the League there would be no Members of the League at all,
and therefore no States which could invoke Article 7 according to its terms,
if the right to do so was (as in principle it must be) confined to States of
the class specified in it. [p 535]
(8) If June 26, 1945, the date of the signature of the Charter, represented
in practice the last occasion on which, under the Charter itself, any
provision could be made for the case of a mandated territory not being
placed under trusteeship, or for meeting any problems that might be created
by the coming dissolution of the League, it was by no means the last
occasion of any kind on which something could have been done about these
things. There was still the occasion of the dissolution of the League
itself. Since a large proportion of the Members of the League (including the
Applicant States) were also Members of the United Nations, and vice-versa,
the basis for a concerted policy existed. There was equally the occasion of
the adoption of the United Nations Resolution XIV (1) of February 12, 1946,
already referred to, stating the terms on which the United Nations would be
prepared to take over political functions from the League, such as those
relating to mandates. These terms, as we have seen, were not encouraging�a
fact significant in itself. But it remained open to the League (not
dissolved until April 1946) or to the parties to any "international
instrument" to make a formal request to the United Nations to assume the
exercise of any such functions. No such request was ever made.
(9) It was not only not made, but when, at Geneva in April 1946, the
representative of China presented a draft Resolution (quoted in full in a
footnote on p. 538 below) the effect of which would have been to request the
United Nations to take over the supervisory functions of the League Council
in respect of the conduct of the Mandates, this draft was not proceeded
with. Instead, the Resolution which we have considered under sub-section (c)
immediately preceding this one, was adopted (for text, see the same footnote
on p. 538) FNl*. The question of the United Nations taking over functions
from the League Council is of course not the same one as that of the right
of former Members of the League to go on invoking the adjudication clause of
the Mandate. But they are closely related. Both hinged on the dissolution of
the League, and the two Assemblies appear to have been equally indifferent
to both. The one question was at least raised by the original Chinese
resolution. The other was never raised at all, and there is no indication
that anyone was interested in raising it; yet it is impossible (and it
really has to be excluded in point of law) that those concerned were unaware
of the terms of provisions such as Article 7, or of the [p 536] effect that
the dissolution of the League would have on these provisions, if no
counter-action was taken.
---------------------------------------------------------------------------------------------------------------------FN1*
The contrast between the original Chinese draft and the one eventually
adopted constitutes an additional reason why we find it impossible to accept
the view taken by the Court in 1950, that the functions of the League
Council in respect of Mandates had passed to the United Nations; for this
was the very thing which the original Chinese draft proposed but which was
not adopted.
---------------------------------------------------------------------------------------------------------------------
(10) We have already drawn attention to, and cited, the very general and
guarded types of statement made about the Mandates at Geneva. But even
before that, the matter had been further discussed in the Preparatory
Commission of the United Nations set up at the close of the San Francisco
Conference to function during the interim period before the Charter would
come into force, and before the first part of the first United Nations
Assembly would be held in January 1946, and to prepare for this. In this
Commission, most of those mho met at Geneva to dissolve the League were
represented. They were therefore aware of what had taken place in the
Preparatory Commission. The Commission set up an Executive Committee. This
Committee prepared a Report in view of the first session of the United
Nations Assembly. Part III of Chapter IV of this Report proposed the setting
up of a Temporary Trusteeship Committee to carry out, in the intervening
period, certain of the functions that would eventually fall to the United
Nations Trusteeship Council FNl. One of the functions the Executive
Committee proposed for such a Trusteeship Committee�and we draw particular
attention to this�was to
---------------------------------------------------------------------------------------------------------------------FN1
Document PC/EX/113/Rev. 1, Chapt. IV, Sec. 2, para. 3, p. 55. A
Sub-Committee of the Executive Committee included in its report to the
latter (inter alia) the following observation: "Since the questions arising
from the winding up of the Mandates System are dealt with in Part III,
Chapter IV, no recommendation is included ..." Ibid., Chapt. IX, See 3,
paras. 1, 2 and 5, p. 110.
---------------------------------------------------------------------------------------------------------------------
"advise the General Assembly on any matters that might arise with regard to
the transfer to the United Nations of any functions and responsibilities
hitherto exercised under the Mandate System".FN2
------------------------------------------------------------------------------------------------------------FN2
Ibid., para. 4 (IV), p. 56.
------------------------------------------------------------------------------------------------------------
Amongst the responsibilities which, according to the argument of the
Applicants in this case, was essentially necessary for the functioning of
the Mandates System, was the function of "judicial supervision" of the
Mandate. It is therefore instructive to note what happened to this proposal.
It was not adopted by the Preparatory Commission, and was replaced by a
recommendation to the United Nations Assembly that it should adopt a
resolution calling on Member States administering Mandates, to submit
trusteeship agreements in respect of them for consideration at the second
part of the first Assembly in the autumn of 1946 FN3, a recommendation
eventually adopted by the Assembly, in Resolution XI of February 9, 1946.
---------------------------------------------------------------------------------------------------------------------FN3
Document PC/20, Chap.IV, Sec.I, p.49.
---------------------------------------------------------------------------------------------------------------------
(11) Yet in the discussions in the Preparatory Commission in December 1945,
which preceded the formulation of this recommen-[p 537]dation, there were
further indications that no automatic transfers of Mandated territories into
the trusteeship system could be expected. Speaking on December 20, 1945, the
representative of Australia, while expressing sympathy with the aims
involved, denied that there was any obligation to bring mandated territories
into trusteeship, and insisted that in this respect there was 110 difference
between these territories and any other form of dependent territory FNl. The
representative of South Africa on the same occasion FN2 and again three days
later FN3 once more made the most explicit reservations.
---------------------------------------------------------------------------------------------------------------------FN1
U.N.P.C. Committee 4, Summary Records, p. 39.
FN2 Ibid., p. 40.
FN3 U.N. P.C. Journal, p. 131.
---------------------------------------------------------------------------------------------------------------------
(12) When the Assembly itself met in January 1946, all this was repeated.
The representative of South Africa made further similar statements (January
17 and 22) FN4. The representative of the United Kingdom (same day)
announced a decision to start negotiations in respect of Tanganyika, the
Cameroons and Togoland, but expressed willingness actually to bring them
into trusteeship only if satisfactory terms could be negotiated, and
reserved the case of Palestine entirely, for special reasons FN5. The
representative of France (19 January) said that the French Government
intended "to carry on with the work entrusted to it by the League of
Nations", but believing that a transfer into trusteeship "would be in the
spirit of the Charter", it was prepared to "study" the matter, subject to
certain reservations FN6. More than one statement referred to the necessity
for obtaining the approval of the peoples of the mandated territories. Other
statements of willingness in principle to place mandated territories under
trusteeship were made on behalf of Australia, Belgium and New Zealand.
---------------------------------------------------------------------------------------------------------------------FN4
G.A.O.R., First Session, First Part, 12th plenary meeting, pp. 185-6; and
ibid., Fourth Comm., 3rd meeting, p. 10.
FN5 Ibid., 11th Plenary, pp. 166-167.
FN6 Ibid., 16th plenary, p. 231.
---------------------------------------------------------------------------------------------------------------------
(13) In its resulting Resolution XI of g February, the Assembly in
"inviting" the negotiation of trusteeship agreements, welcomed
"the declarations made by certain States administering territories now held
under Mandate, of an intention to negotiate trusteeship agreements in
respects of some of these territories..." (italics ours FN7).
------------------------------------------------------------------------------------------------------------FN7
U.N. Document A/64, p. 13.
------------------------------------------------------------------------------------------------------------
Even if one attributes the wording of the italicised passages partly to the
existence of special cases such as those of Palestine [p 538] and
Transjordan (about to attain independence), and to the fact that Japan,
which administered a number of mandated territories in the Pacific, was then
neither a Member of the United Nations, nor present at the Assembly, nor to
be present at Geneva in April, this was not the whole picture. There was
also the fact that the statements made on behalf of South Africa could not
possibly have been construed as "declarations of intention" to negotiate a
trusteeship agreement for South West Africa; and it was in any case clear
that, both with regard to that territory and other mandated territories, the
position was uncertain, and would depend (even in the case of those
territories in respect of which declarations of intention had been made) on
the negotiation of satisfactory trusteeship agreements.
(14) Such then was the position when the Members of the League of Nations
met at Geneva in April 1946, many of them having been represented at the
United Nations proceedings above� mentioned, and all of them aware of these.
What transpired has already been described under the previous section (c) of
this part of Our Opinion. The contrast between the original draft Chinese
resolution, presented by the representative of China but not proceeded with,
and the eventual resolution of the League Assembly is so glaring and
revealing, that we set out both resolutions verbatim in a footnote FNl.
---------------------------------------------------------------------------------------------------------------------
FN1 The original Chinese draft read as follows:
"The Assembly,
Considering that the Trusteeship Council has not yet been constituted and
that all mandated territories under the League have not been transferred
into territories trusteeship;
Considering that the League's function of supervising mandated territories
should be transferred to the United Nations, in order to avoid a period of
interregnum in the supervision of the mandatory regime in these territories
[italics added];
Recommends that the mandatory powers as well as those administering ex-enemy
mandated territories shall continue to submit annual reports to the United
Nations and to submit to inspection by the same until the Trusteeship
Council shall have been constituted."
The Resolution finally adopted by the League Assembly was the following:
"The Assembly:
Recalling that Article 22 of the Covenant applies to certain territories
placed under mandate the principle that the well-being and development of
peoples not yet able to stand alone in the strenuous conditions of the
modern world form a sacred trust of civilization:
I. Expresses its satisfaction with the manner in which the organs of the
League have performed the functions entrusted to them with respect to the
mandates system and in particular pays tribute to the work accomplished by
the Mandates Commission ;
2. Recalls the role of the League in assisting Iraq to progress from its
status under an 'A' Mandate to a condition of complete independence,
welcomes the termination of the mandated status of Syria, the Lebanon and
Transjordan, which have, since the last session of the Assembly, become
independent members of the world community;
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."
---------------------------------------------------------------------------------------------------------------------
***[p 539]
We shall state presently the reason which we think underlay the attitudes
both of the United Nations and of the League Assemblies. Here we will state
what appears to us to the legal significance of these attitudes, so far as
the present affair is concerned.
It seems to us impossible, on the facts as we have described them, and
looking at the matter as a whole, to take any other view than that both the
United Nations and the League Assemblies were fully aware of and alerted to
the whole implications of the mandates question, and of the dissolution of
the League relative to that; or that alternatively they must, on the facts
(and even simply as a presumption of law), be held to have been. Apart from
what was provided for by Article 73 of the Charter (see next section), they
deliberately refrained from making provision for the situation which might
arise if any mandated territory was not placed under trusteeship, or if
there were long delays�although forewarned that this very situation might
arise. They refrained equally from any attempt to adapt the Mandates to the
situation arising from the termination of the League and of League
membership.
They not only "refrained", but at least twice (proposal of the Executive
Committee of the Preparatory Commission of the United Nations�head (10)
above; and original Chinese resolution at Geneva) they rejected proposals
for a transfer of League functions respecting Mandates to the United
Nations. Acceptance of either of these proposals would naturally not, of
itself, have got over the difficulty about cessation of League membership.
It would probably have brought that question into the open, but this is not
he point. Our concern here is simply to show that the two Assemblies were
(exept for Article 73 of the Charter) unwilling to provide in any specific
way for the consequences of the termination of the League and its
membership, or for a possible eventual failure to bring a mandated territory
into trusteeship. In this lies the key to the whole matter.[p 540]
It is the key to the whole matter because it is strikingly evident that the
two Assemblies (and the Applicant States n-ere Members of both) relied, and
preferred to rely, on the hope or expectation that the mandated territories
would eventually be brought into trusteeship. Whether this was a reasonable
assumption in the case of South West Africa, considering the declarations
that were made on behalf of the Union Government, is another matter. The
fact remains that it was relied upon, in the full knowledge of facts from
which it was manifest that the expectation might not be realized, and of the
fact that the Mandatory was under no legal obligation in the matter.
It seems to us fairly clear as a matter of reasonable inference, that an
important part of the reason for this attitude was the desire to avoid even
the suggestion that any mandated territory might not be brought into
trusteeship; or, by providing for the situation that might arise if that was
not done (and if the League had in the meantime been dissolved) to appear to
be countenancing such a situation by providing for it, or to be giving
grounds on the basis of which any Mandatory could contend that, express
provision having been made for continuing the Mandates as Mandates, n3
further action was required.
In short, given the view that they took of the whole matter, those concerned
thought it unnecessary to provide for this situation and better policy not
to. This course having been chosen, and the possible consequences it
entailed accepted, there is no legal principle which would enable a Court of
law to put the clock back and, by judicial action, make provision for a case
which those concerned elected not to deal with, for reasons which appeared
to them good and sufficient at the time.
The fact that subsequent events have shown the policy to be mistaken in the
particular case of South West Africa, cannot of course provide any
justification for judicial rectification. This would be to apply a principle
of "hindsight" which we have already said is not a legitimate one. The fact
is that, making the best political judgment they could in the circumstances
of the time, the two Assemblies pursued the course they thought was wisest
�nor is it certain they were wrong, considering the matter as a whole FNl.
It is not for a Judge today, in the light of the greater knowledge granted
him by the passage of time, to do more than apply the law as it is, in the
light of the facts as they stood when the situation he is dealing with
arose.
---------------------------------------------------------------------------------------------------------------------FN1
It may well have resulted in former mandated territories being placed under
trusteeship that otherwise might not have been. But if a given course has
advantages, its corresponding disadvantages must, in law at any rate, be
accepted.
---------------------------------------------------------------------------------------------------------------------
[p 541]
***
But it would be doing an injustice to those concerned to suppose that they
were indifferent to their responsibilities .They were not. They knew of the
protective cover which was provided by Article 73 of the Charter, and to
this we now come.
***
(e) The role of Article 73 of the United Nations Charter
It must be evident to anyone who reads Article 73 of the United Nations
Charter, in conjunction with Article 22 of the League Covenant, that the
provisions of the one were fashioned to a major extent upon those of the
other. The similarity not only of concept but of language is striking, and
in order to show the affinity between the two, we reproduce the text of the
first paragraph of each in a footnote FNl.
---------------------------------------------------------------------------------------------------------------------FN1
Article 22, paragraph 1, of the League Covenant was as follows:
"To those colonies and territories which as consequence of the late war have
ceased to be under the sovereignty of the States which formerly governed
them and which are inhabited by peoples not yet able to stand by themselves
under the strenuous conditions of the modern world, there should be applied
the principle that the well-being and development of such peoples form a
sacred trust of civilization and that the securities for the performance of
this trust should be embodied in this Covenant."
The opening and governing paragraph of Article 73 of the Charter reads:
"Members of the United Nations which have or assume responsibilities for the
administration of territories whose peoples have not yet attained a full
measure of self-government, recognize the principle that the interests of
the inhabitants of these territories are paramount, and accept as a sacred
trust the obligation to promote to the utmost, within the system of
international peace and security established by the present Charter, the
well-being of the inhabitants of these territories, and to this end: ..."
---------------------------------------------------------------------------------------------------------------------
Article 73 provided for a number of obligations for Members of the United
Nations administering non-self-governing territories, to some of which we
shall refer, and in particular it provided (by its sub-paragraph (e)) for a
reporting obligation to the United Nations which, if less stringent and
comprehensive than that provided for under the Mandates (and under Article 6
of the Mandate for South West Africa), was nevertheless far from negligible,
as events in the United National Assembly have amply demonstrated. This
provision (Article 73) was not in any way confined to the case of Mandated
territories, but it undoubtedly covered that case, as we shall show.
Here then was the provision which, though set aside as irrelevant by the
Court in 1950, did in fact afford a reasonable measure of coverage (in so
fur as it was considered necessary or desirable to provide any) against the
possibility that some Mandated territory [p 542] might remain outside the
trusteeship system or remain outside for a prolonged period FNl.
---------------------------------------------------------------------------------------------------------------------FN1
The striking thing is that from early in its existence the United Nations
Assembly was unwilling to allow that Article 73 related to Mandated
territories. It is easy to see why: to have received them might to some
extent have weakened the case for insisting that the Mandated territories
must be brought into trusteeship, and must not be dealt with like other
non-self-governing territories. This is a matter of opinion: but as a matter
of law, it can only confirm us in the view that the Assembly's attitude in
respect of Mandated territories was throughout based on a policy of
"trusteeship only", and this has extended even to denying the applicability
of Article 73 to Mandated territories not placed under trusteeship.
---------------------------------------------------------------------------------------------------------------------
That Article 73 would not, in respect of such a provision as Article 7 of
the Mandate for South West Africa, have served in itself to cure the defect
arising from the termination of all League Membership can only afford
further evidence of, and confirm the fact that the Members of the United
Nations never attached any particular importance to the adjudication
provisions of the Mandates, a view equally confirmed in respect of the
League Assembly by the character of its final resolution on Mandated
territories of April 18, 1946, already considered.
The view that Article 73 does not apply to Mandated territories is, we
think, legally untenable, at any rate as regards any territories under "B"
or "C" Mandate, having regard to the affinities of Article 73 with Article
22 of the Covenant. The former was clearly intended to apply to a much
larger range of territories than the relatively small class of the Mandated
territories; but it would be a strange consequence if a concept devised
expressly to relate to that class should, when extended to other
territories, thereby be held to have ceased to apply to the class it was
originally devised for, especially given that the States administering
territories in this class were under no obligation to bring them into the
trusteeship class. This would indeed have been to leave them high and dry in
a sort of international no-man's land.
We do not believe this was the intention of the Charter, and the reference
to Chapter XI (containing Article 73) made in paragraph 3 of the League
Resolution of April 18, 1946 (see pp. 535-539) shows that the view we have
expressed was equally the view taken at the time. The reference to Chapter
XI would otherwise be meaningless.
Article 73 declares itself to relate to "territories whose peoples have not
yet attained a full measure of self-government"�a definition precisely
covering Mandated territories of the "B" and "C� class. In almost the
language of Article 22 of the Covenant, its major obligation is "to promote
to the utmost ... the well-being of the inhabitants of these territories",
and to assure "their political, economic, social and educational
advancement". Again, the reference it contains to the "sacred trust"
constitutes the very hall-mark of the whole Mandates concept. These
affinities cannot be ignored, nor is their legal import open to serious
question we think. [p 543]
It is quite clear that their import was not doubted at Geneva Zn April 1946,
and that the decision of the League Assembly to make no specific provision
in respect of Mandated territories was in part based on this. Nothing could
in fact be clearer on the basis of the very Resolution of April 18, 1946, on
which the Judgment of the Court relies in order to reach a different
conclusion. This Resolution recited, inter alia, that "Chapters XI, XII and
XIII of the Charter of the United Nations" (italics ours) embodied
"principles corresponding to those declared in Article 22 of the Covenant of
the League"; and this was one of the grounds on which the League Assembly
was content merely to "take note of the expressed intentions" of the
Mandatory Powers to continue to administer "for the well-being and
development of the peoples concerned", etc.
Exactly the same point was made by the representative of Australia on the
same occasion when, after saying that the Australian Mandated territories
would eventually be brought into trusteeship, and would in the meantime be
administered in accordance with the Mandates, he continued:
"Until then the ground is covered not only by the pledge which the
Government of Australia has given to the Assembly today, but also by the
explicit international obligations laid down in Chapter XI of the Charter...
There will be no gap, no interregnum to be provided for" (italics ours) FNl
------------------------------------------------------------------------------------------------------------FN1
L. of N. O. J., Special Supplement No. 194 at page 47.
-----------------------------------------------------------------------------------------------------------
The point made in this statement about there being "no gap, no interregnum"
may be compared with the language of the original Chinese draft resolution
reproduced in the footnote on p. 538 above.FN2 The same point was repeated
by the representative of Australia in the General Assembly of the United
Nations in November 1947, even more explicitly, as follows:
---------------------------------------------------------------------------------------------------------------------FN2
It is evident, we think, that at least some of the Mandatory Powers did not
share the view of the representative of China as indicated in his original
resolution, that there was an interregnum; and this explains the fact that
another and quite different resolution was introduced. It explains also the
significance of the reference to Chapter XI in the League Assembly
resolution, a reference which was disregarded by the Court in 1950 and
continues to be disregarded by it.
---------------------------------------------------------------------------------------------------------------------
"... we have put into the Charter a special Chapter dealing with
non-self-governing territories. This was in order to meet the position of
territories such as mandated territories which are not placed under the
trusteeship system�a territory like South West Africa... Therefore there is
no gap in the Charter of the United Nations." FN3
------------------------------------------------------------------------------------------------------------FN3
UN. Records General Assembly (2nd Sess. Plenary Vol. I, 1947 at 587-588).
------------------------------------------------------------------------------------------------------------
Indeed at San Francisco in 1945 the President of Commission II, Field
Marshall Smuts had stated that Chapter XI
"... applies the trusteeship principle to all dependent territories whether
they are mandates, whether they are territories taken from defeated
countries, or whether they are existing colonies of Powers. The whole field
of dependent peoples living in dependent territories is now covered." FN1
------------------------------------------------------------------------------------------------------------FN1
Doc. 1144 11/16 U.N.C.I.O. Vol. 8, at p. 127.
------------------------------------------------------------------------------------------------------------
That this view was commonly held in 1946/1947 and immediately thereafter
appears from the Written Statement of the United States presented to the
Court in 1950 (1950 Pleadings, Oral Arguments, Documents at pp. 124 et
seq.); of the Government of the Philippines (at pp. 249 et seq.); and from
the statement made to the Court on behalf of the Secretary-General of the
United Nations on the same occasion FN2.
---------------------------------------------------------------------------------------------------------------------FN2
Ib. at 224. We also quote more fully from the statement made by the
representative of Australia to the Assembly of the League on April II, 1946,
as follows (italics ours):
"The Charter of the United Nations has now extended its basic paragraphs in
two directions. First, the Charter applies to every dependent territory
administered by Members of the United Nations the principle that the primary
object of administration must be to promote the welfare and development of
the inhabitants of dependent territories, and that the administering
authority should render to an international authority an account of its
administration. This is laid down in Chapter XI of the Charter. Amongst
other things, each administering authority under that Chapter undertakes to
supply to the United Nations information concerning economic, social and
educational conditions in its dependent territories.
Secondly, the Charter provides in Chapters XII and XIII for the
establishment in relation to certain categories of dependent territories of
an international trusteeship system. The basic objectives are the same as in
Chapter XI for dependent territories generally, but, under the International
Trusteeship System, a further step is taken with power not merely to
consider reports made by administering authorities but to visit trust
territories and examine at first hand the manner in which the administering
authorities are discharging their trust. These powers of inspection go
beyond what the Covenant permitted to the Permanent Mandate Commission. The
trusteeship system, strictly so called, will apply only to such territories
as are voluntary brought within its scope by individual trusteeship
agreements." (L. of N.O.S. Special Supplement No. 194, p. 47.)
---------------------------------------------------------------------------------------------------------------------
It seems to us that the conclusion, and the only conclusion, that can be
drawn from all this is the following. First, there is absolutely no warrant
for implying from anything that was said or done at Geneva in April 1946,
any undertaking, express or implied, by the Mandatory, or any general
agreement, in relation to Article 7.The indications are quite to the
contrary. Article 7 and its subject-matter was far removed from the minds of
the Members [p 545] of the League (and of the United Nations). There was
during the course of the whole debate not one word about judicial
supervision or adjudication. An examination of the record of the debates
together with the text of the resolution of the Assembly makes it clear that
the subject matter to which alone they related was the obligations of the
Mandatory Powers to the indigenous peoples� the substantive obligations,
which are those to be found in ,4rticle 22 of the Covenant and repeated in
the different Mandates.
Secondly, it is clear that all concerned decided to rest content with what
they had done, namely with creating the trusteeship system, into which
Mandated territories could be brought (but without any legal obligation to
do so); with establishing the r�gime of Chapter XI for non-self-governing
territories, which included Mandated territories not brought into
trusteeship, but did not include provision for compulsory adjudication; and
with taking note of the declarations of intention made by the Mandatories to
continue (pending other arrangements) to administer the territories in
general accordance with the Mandates, for the well-being of the peoples of
the territories.
Beyond this, those concerned were not prepared to go and did not go. In
particular they neither made, nor intended to make�except as just stated�any
provision to meet the situation resulting from the termination of the League
and of Membership of the League; or any provision to meet the situation
which would or might arise if, such termination having taken place, a
Mandated territory was not brought into trusteeship.
***
The onus of proving the existence of an agreement entered into by the
Mandatory Powers in relation to Article 7 lies upon the Applicants. In our
view this onus has not been discharged.
***
Conclusion on the Second Preliminary Objection: in final conclusion on this
part of the case, we revert to that aspect of the matter which must be
relevant to all arguments and counter arguments as to the Respondent State's
obligation under Article 7�and that is the fundamental principle of consent,
given generally or ad hoc, as being the essential foundation of the
jurisdiction of an international tribunal. This principle is not any the
less applicable to an obligation to have recourse to judicial settlement
contained in an instrument such as the Mandate, than it is in the case of a
similar obligation arising under other instruments; indeed, there are two
reasons, [p 546] which we have already mentioned, why it applies with even
greater force; namely, first, that in the case of the Mandates, the
Mandatory alone undertook, and was obliged to submit to adjudication at the
instance of other Members of the League, and could not itself compel a
similar submission; and secondly, the different consequences of a judgment
of the present Court, due to the existence of Article 94 of the Charter. The
unilateral character which Article 7 possesses, obviously makes it all the
more necessary to interpret it strictly when it is invoked against the
Mandatory, and not to extend its scope beyond what the Mandatory may fairly
be held to have agreed to.
It would seem that, in implying the consent of the Mandatory to submit to
compulsory adjudication at the instance of former Members of the League, the
argument based on hindsight is again being used. It is almost conclusively
demonstrable that the Mandatory, in 1920, could not have been contemplating
the eventual dissolution of the League, and that if it had done so, it would
certainly have refused to agree to any adjudicatory obligations continuing
after such an occurrence.
The scope of any consent given, must necessarily be assessed in the light of
the circumstances as known and existing at the time when the consent was
given. Equally, if that consent is to be related to future events, then it
must be assessed in the light of what could reasonably have been foreseen at
the time, as to those events. Even if there is any basis upon which a
dissolution of the League could have been predicted in 1920, that basis
would necessarily have been taken to be a break-up of world order�a
situation in which no State would be willing to undertake a perpetual
obligation to submit to compulsory adjudication�in which indeed, the whole
processes of such adjudication might have foundered. Briefly, therefore, if
anything could have been foreseen, it would not have been what actually
occurred, but its exact opposite.
This is not a reasonable basis upon which consent can be predicated in
relation to something which the Mandatory could never have foreseen, and
therefore clearly can not be held to have consented to.
*
For all the above reasons, we hold that the Second Preliminary Objection
must succeed, because the Applicant States, by their own act in terminating
the class concerned, have ceased to belong to the class of State entitled to
invoke Article 7 of the Mandate, and because no provision was made to
substitute for this class (nor did the Mandatory ever consent, or give an
undertaking, nor was there any agreement, to regard it as replaced by) any
other class to which the Applicant States do belong. [p 547]
VI
THIRD PRELIMINARY OBJECTION
Under this head the Respondent State denies that there is any dispute
between itself and the Applicant States, substantively of the kind to which
Article 7 of the Mandate was intended to relate, and it accordingly claims
that the condition that there should be a "dispute" within the intention of
Article 7 % not fulfilled.
Before we consider this contention, we must deal with a related point.
Article 7 requires not only that there should be a dispute, but also that
this dispute should be between the Mandatory and "another Member of the
League of Nations". For the purposes of this Third Objection it has of
course to be assumed that, contrary to the conclusions we have come to on
the First and Second Preliminary Objections, the Applicants must be deemed
to fulfil the condition of League Membership, or alternatively that the
Applicants are entitled to invoke Article 7 despite the termination of their
League Membership.
The question still remains however, before we consider the character of the
disputes Article 7 was intended to relate to, is there in the present case
any dispute at all, properly speaking, between the Applicant and the
Respondent States? Both on the language of Article 7, and that of the
Statute of the Court, and equally as a matter of general principle, what is
necessary is that the dispute in respect of which the jurisdiction of the
Court is invoked should be a dispute between the actual parties to the
proceedings before the Court.
Clearly, a dispute is not created or constituted merely by bringing
proceedings, putting in an Application or invoking a compulsory adjudication
clause�for otherwise the requirement in the clause (and there always is such
a requirement) that there should be a dispute would .be redundant. In the
present case, is there in the proper sense, any dispute between the
Applicant States and the Respondent, other than such as arises out of the
mere fact that proceedings have been instituted by the Applicants against
the Respondent ?
It seems to us that there is not. It is common knowledge that the present
case finds its whole fons et origo in, and springs directly from, the
activities of the United Nations Assembly relative to the Mandated territory
and the Mandatory. No one who studies the record of the proceedings in the
Assembly, and of the various Assembly Committees and Sub-Committees which
have been concerned with the matter, and especially the Assembly Resolutions
on South West Africa which directly led up to the institution of the present
proceedings before the Court, can doubt for a moment that the real dispute
over South West Africa is between the Respondent State and the United
Nations Assembly, and that the Applicant [p 548] States are in fact
appearing in a representational capacity to bring proceedings which the
Assembly cannot bring for itself because, under Article 34 of the Statute,
only States can appear in contentious proceedings before the Court.
On this ground alone therefore, we consider we would be justified in holding
that, there being no real dispute between the Respondent State and the
Applicant States in their individual capacities, this condition of Article 7
is not fulfilled.
It is admitted that the Applicants have no direct material interests
involved in this case. Neither their own national interests nor those of any
of their nationals under the Mandate instrument or in the Mandated territory
are affected. They are appearing� and this is admitted�solely for the
purpose of defending or upholding the Mandate, in the interest not of
themselves, but of the inhabitants of the Mandated territory, and this they
are doing at the instance of the Assembly, as clearly appears from the
Assembly Resolutions of 1361 (XIV) of November 1959, and 1565 (XV) of
December 1960.
It is not for us to comment on this process, except in so far as we have to
consider what the legal consequences are. We realise that States, parties to
a treaty or convention, or who have third-State rights under it, may in
certain types of cases be held to have a legal interest in its due
observance, even though the - alleged breach of it has not, or not yet,
affected them directly. But since we do not regard the Mandate as being a
treaty or convention, or the Applicant States as being parties to it as such
(if it were one) and since we consider them to have lost the capacity under
which they might have been able to claim any rights on a third State basis,
we could not regard them as having any legal interest in the matter by
virtue of any direct participation in the Mandate.
Even if we should be wrong as to that, however, the plain fact is that the
real, present interest of the Applicant States in these proceedings is as
Members of the United Nations, as participators in the activities of the
United Nations Assembly relative to South West Africa, and because of the
interest which, on the basis of the Opinion given by the Court in 1950, the
Assembly considers itself to have in the question of the conduct of the
Mandate. It is well established in international jurisprudence that it is
the situation as it stood immediately prior to the commencement of
proceedings to which regard must be had. Any "dispute" which the Applicant
States then had with the Respondent State was in the United Nations, in
their capacity as Members of it, and was conducted within the framework of
the Assembly, again as Members of it. [p 549]
Nor has what has taken place in the Assembly been strictly in the nature of
a dispute, properly so-called, so much as a political conflict of views. The
Applicant States have not had, and do not have any conflict of view with the
Respondent State over and above, or different from, that which a great many
of the other States represented in the Assembly have, equally as Members of
it; and their interest in the matter is equally no different from or greater
than that of many other Members. In particular, they have no specific
individual ground of dispute with the Respondent State outside the Assembly,
as is shown by their failure to open, or attempt to conduct, any direct
negotiations with the Respondent State through the diplomatic channel.
Throughout, up to the time of bringing these proceedings, the Applicants
have acted in their capacity as Members of the United Nations; and for all
the difference it would have made to the essential character of the present
proceedings, these might just as well have been brought by any other States
corning within the category of ex-Members of the former League of Nations.
The pleadings could have 6een identical, apart from the name of the
plaintiffs.
We do not consider that a dispute which has been conducted by a State (if
"conducted" is the proper term at all) solely within the framework of an
international organization, in its capacity as a member of the organization,
and by simple participation in its activities, without the dispute ever
having been taken up directly with the defendant State outside the
organization, can constitute a dispute between States of the kind envisaged
by the normal adjudication clause.
We must therefore conclude that prior to the bringing of the present
proceedings (which was not per se enough) there was not, properly speaking,
a dispute between the Respondent State and the Applicant States as such,
within the normal intention of a jurisdictional clause such as Article 7 of
the Mandate, and that accordingly the requirement that there should be a
dispute between the Mandatory and the Applicant States is not fulfilled.
***
The defect to which we have just drawn attention is in a certain sense a
technical one, though the technicality is far from being unimportant. But it
could be cured by time and appropriate action. We have a more fundamental
reason for holding that the dispute, or rather ground of complaint involved
in the present case, is not one contemplated by Article 7.
The Mandate (and this is still more so in the case of other categories of
Mandates) has two main classes of substantive provisions. The first (which
might be called the "conduct of the Mandate" class)[p 550] comprises the
provisions inserted for the benefit of the peoples of the territory. The
other (which might be called the "State rights and interests" class)
comprises those which were inserted for the national benefit of the Members
of the League and their nationals {commercial rights, open door, freedom for
missionary activities, etc.).
The question is whether Article 7 of the Mandate (this was a common clause
in all the Mandate), relates to both these classes of provision, or only to
the latter. At first sight, on a literal reading of Article 7, the answer
might appear clear: it specifies "any dispute whatever ... relating to the
interpretation or the application of the provisions of the Mandate". Since
we believe in the principle of interpreting provisions according to their
natural and ordinary meaning in the context in which they occur, and (in the
absence of any ambiguities or contradictions) without reference to travaztx
pr�paratoires, we must state why we feel unable to take the above passage at
its face value, and why we consider a reference to the travaux pr�paratoires
to be justified in this case, quite apart from the fact that these have in
any event been so extensively relied upon in connection with the First and
Second Preliminary Objections, that it would hardly be possible to exclude
them from consideration of the third, which is definitely related to the
others.
The phrase we have just cited from Article 7 does not give the full sense of
the relevant passage, and to obtain this a fuller citation is required, as
follows: "any dispute whatever ... between the Mandatory and another Member
of the League of Nations relating to the interpretation or application of
the provisions of the Mandate". Having regard to the view we take as to the
meaning of a "dispute", and the necessity for a direct dispute between the
parties to the proceedings, in which they have an interest in their own
capacity, and not merely as Members of an international organization, the
above passage, in the context of this case, conceals an ambiguity. The words
could be read as meaning any dispute whatever having the character just
mentioned. In our view the Applicants had not, at the critical date (that of
the Applications), any interest in the matter (even in the conduct of the
Mandate) except in their capacity as Members of the United Nations. On that
ground alone we should not regard the case as covered.
*
There is however another much more important ambiguity which makes it
necessary to enquire whether "any dispute whatever" means any dispute about
the provisions of the Mandate generally, or whether it must be regarded as
being confined to any dispute whatever about those provisions of the [p 551]
Mandate which affect State or national rights or interests. This arises
because of the immediately following requirement that the dispute shall be
one that "cannot be settled by negotiation".
The implications of this phrase are, in our view, the key to the whole
question of what is covered by Article 7. "Negotiation", we think, as
contemplated by such a provision as Article 7, means negotiation between the
parties to the proceedings before the Court. Under the head of the fourth
preliminary objection we shall give our reasons for so thinking. For the
moment we will assume, what would certainly have been assumed by anyone
dealing with the matter at the time when the Mandate was drafted, namely
that negotiation means negotiation between, or directly for and on behalf of
the actual parties to the proceedings before the Court.
Now a requirement that a dispute must be such as "cannot" be settled by
negotiation, necessarily implies that it be of a type capable of being so
settled, and of being so settled by negotiation between parties competent
for that purpose. If a dispute could not be settled (i.e. is inherently
incapable of settlement) by any kind of negotiation at all between the
parties before the Court, then clearly a requirement that the dispute be one
that "cannot" be settled by negotiation would be meaningless.
By 'settlement', we understand final settlement, and a final settlement to
us means a settlement negotiated between parties having competence to settle
the particular dispute in a final manner. The question therefore arises,
could the Applicant and Respondent States, by negotiation inter se, settle
in any way whatever a dispute not relating to their own State or national
rights or interests, but belonging to the "conduct of the Mandate" type�the
sacred trust�could any settlement negotiated between single States, such as
the Applicant States and the Mandatory, settle any question relating to the
general conduct of the Mandate itself? Could any such settlement, arrived at
between the Applicants and the Respondent alone, bind any other State
conceiving itself to have an interest in the conduct of the Mandate�or bind
the United Nations Assembly? Obviously not�such a settlement might be wholly
inacceptable to these other entities.
It is not, in our view, a sufficient answer to Say that a settlement between
the Applicant and Respondent States would have been a settlement, inasmuch
as it would have precluded the Applicants from bringing any proceedings
under Article 7. Such a settlement would have settled nothing vis-�-vis any
other [p 552] State dissatisfied with it, or in the United Nations Assembly
FNl, and would not, from the point of view of the Respondent, have genuinely
settled anything.
---------------------------------------------------------------------------------------------------------------------FN1
It is of course no answer to Say that in practice the Applicants would not
have negotiated any settlement they did not know would be acceptable to the
Assembly; or if it is an answer, it is a revealing one which can only bear
out our view that the dispute in this case is not really with the
Applicants.
---------------------------------------------------------------------------------------------------------------------
It is common knowledge that the present proceedings have been brought
because the decision of the Court would be binding on the Mandatory.
Elementary principles of justice and good faith therefore require that if
the Mandatory should be able to achieve a settlement of the dispute directly
with the Applicant States (which it has never yet been asked to do) such a
settlement should be final, and good erga omnes. But obviously any such
settlement could not have this effect.
Again, let it be assumed, since that contingency may not be excluded, that,
on the merits, the Court found in favour of the Respondent. Such a decision
would be res judicata only for the Applicant States (Article 59 of the
Statute). It would not bind the United Nations Assembly, nor would it bind
any States except the Applicants. Any other State dissatisfied with it
could, at some future time, bring fresh proceedings on exactly or
substantially the same grounds, with- results that might be the same, or
again might not. From the Mandatory's point of view there could be no
finality. On the other hand a decision given against the Respondent would be
binding on it, and would enable Article 94 of the Charter to be invoked if
necessary by the other Party.
The evident disparity between these two situations is not easy to reconcile
with normal principles of justice, and we do not believe that anything so
lop-sided could have been in contemplation when Article 7 was drafted. We
consider that, as its wording clearly implies, this provision was only
intended to relate to disputes of a kind which are capable of being settled
by negotiation, and of which therefore, in the given case, it can
legitimately be held (if the facts so warrant) that the dispute "cannot" be
so settled; and we consider further, that the only kind of dispute of that
character, is one involving the national rights or interests of the States
concerned. These they are competent to settle in a final manner by
negotiation. Disputes about the general conduct of the Mandate, in relation
to the inhabitants of the territory, are disputes which, in principle, are
not capable of being so settled merely by a negotiation between the
Mandatory and another State. The obligations of the Mandatory in relation to
the "sacred trust" are of their nature not negotiable as between the
Mandatory and another State Member of the League. The present dispute is of
the latter kind, and therefore we do not consider that it comes under
Article 7. [p 553]
*
We now wish to refer briefly to a further point that seems to us of hardly
less importance. We find it impossible to reconcile the view that Article 7
relates to disputes about the general conduct of the Mandate, with the
supervisory functions given to the Council of the League under Article 6 of
the Mandate. The conjunction would mean that although the League Council
might have been perfectly satisfied with the Mandatory's conduct of the
Mandate, or might even have made suggestions to the Mandatory about that,
which the latter was complying with and carrying out, any Member of the
League not satisfied with the Mandatory's conduct, or not agreeing with the
Council's views, could have brought proceedings before the Permanent Court
under Article 7.
There would have been an even more extraordinary possibility. A Member of
the League might, on some point relative to the conduct of the Mandate, have
obtained from the Permanent Court a decision which was not in fact in the
best interests of the peoples of the mandated territory�due, Say, to lack of
sufficient technical data before the Court. Yet under Article 59 of the
Statute, the Mandatory would have been bound by the decision, and obliged to
apply it vis-�-vis the inhabitants, although the Council of the League might
have been wholly opposed to it and itself not bound by it.
We cannot believe it was ever intended that it should be possible for such
situations to arise, and in estimating this, one must, for reasons we have
given earlier in this Opinion, place oneself at the point in time when these
provisions, Articles 6 and 7, were being drafted as designed portions of a
coherent and integrated whole, which the Mandate certainly would not have
been if Article 7 had had the meaning attributed to it by the Court.
The situations we have described as capable of arising if Article 7 is
regarded as relating to disputes about the conduct of the Mandate are in no
way fanciful or hypothetical. One of them has actually arisen in another
case, with reference to a provision substantially the same as Article 7 in a
United Nations trusteeship agreement.
It is in Our opinion hardly conceivable that those who created a system
according to which the Mandates were to be exercised "on behalf of the
League", and the Mandatory was to be responsible, and solely responsible, to
the Council of the League, should have been willing so far to dilute the
Council's authority (especially when [p 554] the Council could itself go to
the Permanent Court for an Advisory Opinion), as to give a wholly
independent right of recourse to the Court to Members of the League, not
merely for the protection of their own individual rights and interests, but
in the very field of the general conduct of the Mandate which was peculiarly
the Council's.
***
These various considerations lead us to hold that, despite the apparently
plain language of Article 7 of the Mandate, on a literal interpretation of
the words "any dispute whatever", analysis shows its real meaning and
intention to be different, and to exlude disputes about the general conduct
of the Mandate. If there is any room for doubt, then this is a case in which
reference to the travaux fir�paratoires is justified, in order to see
whether they confirm the foregoing interpretation, and to this we shall now
proceed.
***
Before the end of the Paris Peace Conference of 1919, a Mandates Commission
was established to consider possible draft terms for the various
MandatesFN1. At its first meeting on June 28, 1919, a draft "C" Mandate in
the form of five suggested articles was submitted for discussion. This draft
contained no adjudication clause. Nor did it contain any clause dealing with
freedom of worship or the provisions in relation to missionaries, nationals
of any State Member of the League, to enter and reside in the territory,
etc., as was subsequently to be set forth in Article 5 of the "C" Mandate
instruments.
---------------------------------------------------------------------------------------------------------------------FN1
Conf�rence de la Paix 1919-1920; Recueil des Actes de la Conf�rence, Partie
VI, Paris 1934, at page 327.
---------------------------------------------------------------------------------------------------------------------
At its next meeting on July 8, the Commission had before it not only the
draft "C" Mandate, but also two draft "B" Mandates, one proposed by the
representative of France which was to form the basis of discussion, and
another presented by the United States. The French "B" draft was brief, and
contained eleven comparatively short articles. It contained no adjudication
clause. The United States draft, on the other hand, contained apart from
certain clauses dealing the conduct of the Mandate in relation to the
peoples of the Mandated territory, a number of clauses which provided in
considerable detail for rights to be accorded to States Members of the
League, and their subjects or nationals, in respect of a number of different
matters. This United States draft contained an adjudication clause, and it
is clear from the record�and this is what we draw attention to�that the
discussion on this adjudica-[p 555]tion clause, appearing in the United
States draft only, centred round these detailed rights to be accorded to
Members of the League and their nationals under that draft. The adjudication
clause read as follows:
"If any dispute should arise between the Members of the League of Nations
regarding the interpretation or application of the present Convention and
the dispute cannot be settled by negotiation, it will be referred to the
Permanent Court of Justice...
The subjects or citizens of the States Members of the League of Nations may
also refer claims relating to breaches of their rights conferred upon them
by Articles 5, 6, 7, 7a and 7b of the Mandate to the Court for decision. The
judgment given by the Court will be without appeal in the two above
mentioned cases and will have the same effect as an arbitral award rendered
pursuant to Article 13 of the Covenant." (Italics ours.)
The articles of the United States "B" draft, as above indicated provided for
what may conveniently be described as an "open door" to carry on trade and
commerce, etc., accorded to subjects and nationals of States Members of the
League (Article 5); religious freedom, and provision for missionaries
(Article 6); equality of opportunity for the commerce and navigation for all
States, Members of the League and provision against discrimination between
subjects and nationals of State Members of the League (Article 7);
concessions in respect of railways, post offices, telegraphs, radio stations
and other public works or services without distinction, etc., between
subjects or nationals of States, Members of the League (Article 7 a); and a
kind of most-favoured-nation provision in favour of States, Members of the
League (Article 7 b) and their nationals.
These clauses thus provided for a series of rights to be conferred both upon
States, Members of the League, and upon their subjects and citizens. The
wording of the adjudication clause itself was somewhat peculiar and not very
good. The second paragraph appeared to confer some kind of direct right of
action on the nationals of the Members States�an idea which did not last.
Looking at the clause as a whole, and at the words we have italicized in it,
and considering the context in which it was proposed and discussed, it
appears clear that the first paragraph of it was intended to relate to the
rights and interests of the Member States under the Mandate, and the second
to those of their nationals under certain specified articles, some of which
covered both rights of nationals as well as State rights.
Briefly, the position appears to have been that no one thought of having a
provision for compulsory adjudication until the United States made detailed
proposals for commercial and other State rights for Members of the League
and their nationals, and it was [p 556] in this context and in no other that
the adjudication clause was discussed. The matter progressed on this
footing.
At its next meeting on 9 July, the Commission continued its examination of
both the French and United States draft "B" Mandates; but the French draft
was taken as the basis of discussion, article by article. The first four
Articles dealt with the kind of thing that appears in the first four
Articles of the Mandate for South West Africa and these were, with certain
amendments, provisionally adopted.
The Commission then took up Article 5 of the French 'B' draft. The first
paragraph, which was very short, provided for equal rights for citizens of
States Members of the League in relation to residence, protection of their
persons and property, the acquisition of fixed and movable property and the
exercise of their callings, all on the same basis as that accorded to
nationals of the Mandatory Power. This was accepted after amendment.
The remaining part of the French clause 5, which�-again in brief terms, and
in principle only�dealt with equality of commercial opportunity for
nationals of State Members of the League, freedom of navigation and transit,
and protection against discriminatory duties on merchandise, was examined in
conjunction with Article 7 of the United States draft.
The Commission then proceeded to consider whether there would be any
advantages in inserting, in this French clause 5, detailed stipulations such
as the United States 'B' draft provided. The representative of the United
States contended that they were necessary in order to ensure satisfactory
execution by the Mandatory. The record then reads:
"Lord Robert Cecil (British Empire) thought that that question was linked
with the right of recourse to the International Court. If the right of
recourse were to be granted, it would be preferable merely to lay down the
principle of equality and leave it to the Court to apply the principle to
particular cases. He thought however it would be desirable to replace the
words 'commercial equality' ('�galit� commerciale')�which appeared in the
French draft�by the words 'commercial and industrial equality'. If on the
other hand, no right of recourse to the Court was to be given, it would be
necessary to elaborate stipulations in detail."
The morning session concluded with this observation. This discussion, we
think, shows very clearly that the purpose of the adjudication clause, and
the sole context in which it was considered, was the protection of the
commercial and other rights of States Members of the League, and those of
their nationals, as intended to be conferred on them by the Mandate
instruments.
It was in consequence of this discussion that the first matter taken up by
the Commission at its afternoon session on the same[p 557] day was Article
15 of the United States draft, which contained the adjudication clause above
quoted. The Commission proposed to continue its discussion of Article 5 of
the French draft, but on the suggestion of the Representative of the United
States, agreed first to examine this adjudication clause.
The Representative of France said that he had no objection in principle to
resort to an international Court, but he thought that if that procedure were
open to private individuals, any sort of administration would become
impossible. The President agreed. Recourse to the Court should be the
responsibility of a Government. He thought there would certainly be some
advantage in transferring from the political to the legal plane the
settlement of questions such as those concerning property rights ("le
r�glement des questions comme celle du droit de propri�t� "), but asked
whether Governments should not assume the responsibility for deciding
whether a claim should be referred to the Court (si la r�clamation doit �tre
port�e devant la Cour).
To meet this position, Lord Robert Cecil then proposed that the second
paragraph of the 'adjudication clause should read:
"The Members of the League of Nations will also be entitled on behalf of
their subjects or citizens to refer claims for breaches of their rights".
etc.
This met the various points of view. It was accepted by the Representative
of the United States, and was adopted, apparently without further
discussion.
The next step was the omission of the last sentence of the United States
adjudication clause, namely that which provided that the judgment of the
Court in each case should be final and have the same effect as an award
under Article 13 of the Covenant. This sentence became superfluous if all
claims had to be referred to the Court by Governments, whether in respect of
their own rights under the Mandates, or of those of their nationals.
The Commission then returned to the examination of the final part of Article
5 of the French 'B' draft, and since it was this draft which was the basis
of all further consideration, not the United States draft with its detailed
provisions for rights to be accorded to States or their nationals, the
reference to "Articles 5, 6, 7, 7 a and 7 b" in the adjudication clause was
omitted. Article 5 of the French draft was then tentatively approved with
some amendments.
The Commission then took up a fresh draft of the "C" Mandates. This draft
now contained a new article, the final form of which appears as Article 5 of
the Mandate for South West Africa, guaranteeing freedom of worship in the
mandated territory, and freedom for missionary activities on the part of
nationals of Members of the League. In this same draft there appeared,
equally for the first [p 558] time, an adjudication clause in broadly the
same terms as were eventually submitted to the Council of the League on
December 14, 1920, and adopted by it after amendment in its resolution of
December 17, 1920, promulgating the Mandate.
It seems to us therefore that the record could hardly make it plainer than
it does that the drafting of what might for convenience be called the
national rights clauses of the Mandates, and the drafting of the
adjudication clause, went hand in hand, each reacting on the other, and that
the adjudication clause was never discussed in the context of the
obligations of the Mandatories relative to the peoples of the mandated
territories. To borrow the words of Lord Finlay in one of the Mavrommatis
cases (P.C.I. J. Series A, No. 2, at p. 43) in relation to the Palestine
Mandate: "Under these heads [i.e. of the commercial, etc., rights of States
and their nationals] there are endless possibilities of dispute between the
Mandatory and other Members of the League of Nations, and it was highly
necessary that a Tribunal should be provided for the settlement of such
disputes".FNl Never at any time during the settlement of the drafts was
there the slightest suggestion that the adjudication clause was intended to
serve quite a different purpose, namely the policing of the sacred trust.
---------------------------------------------------------------------------------------------------------------------FN1
We cite Lord Finlay. We do not cite other juristic authority, but we draw
attention to the exactly similar view to our own, expressed as representing
the general opinion of international lawyers, by Mr. Feinberg in his Hague
Academy course of 1937, quoted in full in the Dissenting Opinion of the
President of the Court in the present case.
---------------------------------------------------------------------------------------------------------------------
It is evident that it had no relation to the trust obligations of the
Mandatory to the peoples of the territories. It was designed to serve a less
lofty purpose. It is quite inconceivable that if Article 7 was of the
fundamentally essential character stated by the Court; created as one of the
securities for the performance of the Covenant, providing the Court as the
final bulwark to secure the performance of the sacred trust, that not one
word is to be found in the records which gives support to the Court's view
FN2.
---------------------------------------------------------------------------------------------------------------------FN2
The degree of importance which the United States in 1920 placed upon the
equality of commercial and industrial opportunity in the mandated
territories is to be seen in the correspondence which passed between it and
the Council of the League and the British Secretary of State for Foreign
Affairs between November 1920 and March 1921. Annexes 154 and 154a, b, and
c, Minutes 12th Session Council of League.
---------------------------------------------------------------------------------------------------------------------
To sum up, Our study of the record confirms the view which we had
antecedently and independently formed, on the basis of the language of
Article 7, and in the context of the Mandate as a whole. This view is,
first, that Article 7 must be understood as referring to a dispute in the
traditional sense of the term, as it would have been understood in 1920,
namely a dispute between [p 559] the actual parties before the Court about
their own interests, in which they appear as representing themselves and not
some other entity or interest; and secondly, that Article 7 in the general
context and scheme of the Mandate, was intended to enable the Members of the
League to protect their own rights and those of their nationals, and not to
enable them to intervene in matters affecting solely the conduct of the
Mandate in relation to the peoples of the mandated territory.
In this last connection we consider that the record completely confirms the
view we have taken in rejecting the argument that Article 7 was introduced,
and was essential, in .order to compensate for the fact that, by reason of
Article 34 of the Statute of the Court (which incidentally had not been
drafted in 1919 when the Mandates Commission held its deliberations), the
Council of the League could not appear in contentious proceedings, but could
only request advisory opinions, and could not therefore, in the last resort,
obtain any binding decision against the Mandatory. We have expressed the
view that it was foreign to the climate of opinion of 1919-20 to insert an
adjudication provision with such a purpose in mind, and the record confirms
this. It was not to enable Members of the League to assist the Council in
upholding the Mandate that Article 7 was introduced, but to enable them to
protect their own national rights which the Council would have no special
interest in doing.
A further point, confirming the same view, is that the key provision as
regards the interests of the peoples of the mandated territory, which
appears in the "CH Mandates (Article 2) as an obligation for the Mandatory
to promote to the utmost the peoples' material and moral well-being and
social progress, and in a somewhat different form in the "B" Mandates, does
not figure in the "A" Mandates at all. Yet an adjudication clause similar to
Article 7 does figure there�evidently because the "A" Mandates contained (as
they did) provisions concerning the rights and interests of Members of the
League and their nationals in the mandated territory and for no other
reason.
***
There is only one further point we need deal with under this head, namely
the argument sought to be drawn from the existence of what is known as the
"Tanganyika Clause".
As has been seen, in the course of the drafting, the original division of
the adjudication clause into two parts (State rights; rights of nationals)
was eliminated, because once it had been agreed that all proceedings of
whatever character must be brought by governments, whether on their own
behalf or that of their nationals, the raison d'�tre for this division
disappeared. In only one Mandate [p 560] was it unaccountably preserved,
that for British East Africa, the adjudication clause of which has a first
paragraph in Article 7 terms, and a second providing that Members of the
League could also bring before the Court complaints on behalf of their
nationals FNl. From this it has been sought to draw the conclusion that the
first paragraph of the Tanganyika clause (and hence any provision such as
Article 7 having similar terms to this first paragraph) must have related to
disputes about the conduct of the Mandate.
---------------------------------------------------------------------------------------------------------------------FN1
The reason for the failure to draft the Tanganyika clause in the same form
as the others has not been established with any certainty. It was one of
those drafting quirks that constantly occur at international conferences,
and probably arose from differences of view as to whether, if a clause is
superfluous, it is better to omit it or, ex abundanti cautela, to let it
remain.
---------------------------------------------------------------------------------------------------------------------
Even as a matter of interpretation pure and simple, we regard this as too
slender a foundation on which to seek to erect such a conclusion. The second
part of the clause is quite redundant, as the Mavrommatis case bears
witness. Moreover the Belgian Mandate for East Africa was on all fours with
that of the British Mandate for Tanganyika. It would be quite absurd to
suggest that the second paragraph was designed to create a difference
between the one Mandate and the other. No reason has ever been advanced why
this should have been so. In any case the record shows that all that
happened was that the Tanganyika clause simply retained the original form of
the adjudication clause introduced and discussed in connection with the
statal rights of Members of the League, and rights reserved for their
nationals, and that in this form the first part was intended to cover the
statal rights of the Members, and the second the rights of their nationals.
All that happened in the Tanganyika case was that these two parts were never
merged, as happened in all the other cases; or rather that there was simply
a failure to drop the second part, as being superfluous. From this, no
useful information as to the meaning of the first part can be derived. In
the circumstances, therefore, no deduction contrary to the view we hold can
legitimately be drawn.
***
Conclusion: we consider that the third preliminary objection is good and
should be upheld.
VII
FOURTH PRELIIVIINARY OBJECTION
Having regard to our view, stated under the preceding head, that the matters
involved by the present Application are not of a kind [p 561] that are
capable of settlement on the basis of a negotiation between the Applicants
and the Respondent State, since these parties lack competence to settle such
matters by a negotiation purely between themselves, the question of whether
the present dispute is one that "cannot" be settled by negotiation hardly
arises for us. We will consider it nevertheless, because certain points of
principle are involved which seem to us important.
The Respondent has not denied that discussions have taken place in the
United Nations, but has confined itself to contending that they did not take
place in conditions that gave them any real chance of success, so that it
cannot be said that the dispute is one that under no circumstances could be
settled by negotiation.
This contention involves questions of fact into which we do not propose to
go because, in Our opinion, there has not, properly speaking, been any
negotiation at all in this case of the kind contemplated by Article 7.
Under Article 7, the dispute that cannot be settled by negotiation must be
the dispute between the Mandatory and the other Member of the League
concerned, i.e., the actual dispute between the Parties to the proceedings
before the Court, as such. This means that the negotiation required by
Article 7 must relate to that dispute and no other. Now the Applications in
this case were filed in November, 1960, and it is quite clear therefore
that, up to that date, the Assembly proceedings on which the Applicants rely
(even if they can be called negotiation at all) had nothing whatever to do
with the actual dispute between the Applicant States and the Respondent
State, since this dispute did not then exist as such l. All that existed up
to that date was a disagreement between the Assembly (as an entity) and one
of its Members�the Respondent State; and all that had taken place up to that
date were sundry proceedings in the Assembly and its Committees, in which
indeed the Applicants participated, but simply as Members of the Assembly.
To attribute to these antecedent discussions the character of a negotiation
relative to the present dispute (which only arose in November 1960, if even
then FNl)�a negotiation conducted by the Applicants in and through the
Assembly, or by the Assembly itself on behalf of the Applicants, seems to us
wholly unrealistic.
---------------------------------------------------------------------------------------------------------------------FN1
Nor strictly does it exist now, since, as we pointed out under the preceding
head, it cannot have been created merely by the institution of proceedings;
and no other interchanges, outside the Assembly, or directly between the
parties as such, have ever taken place.
---------------------------------------------------------------------------------------------------------------------
We would not wish to exaggerate the extent of negotiation that may be
required to establish that there has been the minimum [p 562] necessary in
the circumstances to make it clear that the parties cannot settle their
dispute. But some negotiation must, we think, in fact have taken place
between the actual Parties to the proceedings before the Court, in their
capacity as individual States.
Furthermore, the negotiation must relate to the dispute (and no other)
alleged to exist between the parties to the proceedings before the Court,
which dispute must have existed antecedently to those proceedings. It is not
sufficient for the negotiation (supposing it to have been one) to have
related to a dispute which, at the time when this "negotiation" was taking
place, did not exist specifically between the Parties before the Court, but
consisted merely in a general all-round controversy pursued on the floor of
an international Assembly.
We are not concerned to deny the propriety or utility of discussions in an
international forum such as the Assembly of the United Nations. We do not
think that, normally, such discussions can be regarded as an actual
negotiation taking place between the Parties before the Court, as we think
Article 7 contemplated. Such discussions are, and necessarily must be, of
too general and diffused a character to constitute a negotiation between the
specific parties who eventually come before the Court in relation to a
specific dispute between them as States.
Be that as it may, what is clearly apparent to us is that a "negotiation"
confined to the floor of an international Assembly, consisting of
allegations of Members, resolutions of the Assembly and actions taken by the
assembly pursuant thereto, denial of allegations, refusal to comply with
resolutions or to respond to action taken thereunder, cannot be enough to
justify the Court in holding that the dispute "cannot" be settled by
negotiation, when no direct diplomatic interchanges have ever taken place
between the parties, and therefore no attempt at settlement has been made at
the statal and diplomatic level. Since direct negotiations between the
actual Parties to a dispute constitute the usual and normally indispensable
method of attempting a settlement, we do not see how the Court can hold and
adjudge that the dispute (that any dispute) "cannot" be settled, when no
recourse at all has been had to this method. We do not think it should be
assumed or postulated that interchanges which have not succeeded in the
Assembly or its subsidiary organs, might not, in different conditions, and
amongst a restricted number of parties, stand some chance of success�at
least a sufficient chance to make it not reasonably possible to affirm the
contrary until this method has been attempted. Whether success would be
achieved, must be a matter of opinion, but that is not the point; and to us,
the failure to conduct, or even attempt, any direct negotiations between the
parties to the present dispute in their capacity as such, appears (having
regard to the terms of Article 7) to constitute a formal bar to the present
proceedings. [p 563]
*
In our opinion the fourth preliminary objection must accordingly be upheld.
*
We shall conclude by pointing out that requirements about "disputes" and
"negotiations" are not mere technicalities. They appear in one form or
another in virtually every adjudication clause that has ever been drafted,
and for good reason. They are inserted purposely to protect the parties, so
far as possible, from international litigation that is unnecessary,
premature, inadequately motivated, or merely specious. Without this measure
of protection, countries would not sign clauses providing for compulsory
adjudication. This is an aspect of the matter to which we feel insufficient
attention has been given.
***
Our final conclusion on the whole case is that, for all of the reasons
stated, and in relation to each of the objections raised, whether on the
grounds actually advanced by the Respondent State or on other grounds, the
Court is not competent in this case, and should refuse to assume
jurisdiction.
(Signed) Percy C. Spender.
(Signed) G. G. Fitzmaurice.
[p 564]
DISSENTING OPINIOX OF JUDGE MORELLI
[Translation]
I voted against the decision upholding the Court's jurisdiction because I am
of the opinion that, if a dispute really existed between Ethiopia and
Liberia on the one hand and South Africa on the other with the subject set
forth in the Applications, such a dispute would not be subject to the
jurisdiction of the Court. I think however that, before taking up the
question of jurisdiction, the Court should have sought to establish whether
a dispute existed between the Parties.
I
1. The third of the preliminary objections submitted by South Africa sought
in fact to deny the existence of a dispute between that State, on the one
hand, and Ethiopia and Liberia on the other. Reference was made to Article 7
of the Mandate, which postulates the existence of a "dispute" between the
Mandatory and another Member of the League of Nations; and the assumption
was made, for the purposes of this objection, that that article is in force
and capable of being invoked by the Applicant States; which was denied by
the first two preliminary objections.
If the requirement of the existence of a dispute, for the Court to be able
to exercise its function by a decision on the merits, depended solely upon
Article 7 of the Mandate, consideration of the question of the satisfaction
of that condition could only be undertaken after a finding, or on the
assumption, that Article 7 of the mandate is still in force. But the
requirement is laid down, in the first place, by the Statute and the Rules
of Court.
2. The Statute indeed states, in Article 38, that the function of the Court
"is to decide in accordance with international law such disputes as are
submitted to it". In other provisions of the Statute the concept of a
dispute is most frequently indicated by the term "case": for instance, inter
alia, in Article 40, concerning the means by which "cases" are brought
before the Court, and in the first paragraph of Article 36, which lays down
the "cases" comprised in the jurisdiction of the Court. But it is quite
clear from paragraph 2 of Article 36, where, still with reference to the
jurisdiction of the Court, the allusion is to legal "disputes", that the
"cases" referred to in paragraph I must consist of disputes. The word
"diff�rend" is to be found also in the French text of Article 62.
So far as the Rules are concerned, it is the word "case" which is generally
employed in the provisions of Heading II. But if regard [p 565] is had to
the title given to this heading ("Contentious Proceedings") there can be no
doubt that the "cases" there contemplated are necessarily made up of
disputes; this is in contrast with the functions exercised by the Court on
the basis of Heading III, which is concerned with Advisory Opinions.
Furthermore it is the subject of the "dispute" which is referred to in
Article 32, paragraph 2, of the Rules.
From the whole body of provisions in the Statute and the Rules it is
therefore clear, beyond any possibility of doubt, that, in accordance with
the Statute and the Rules themselves, the Court cannot exercise its function
in contentious proceedings, by giving a decision on the merits, unless a
dispute genuinely exists between the parties. The absence thereof would
require to be found by the Court even proprio motu. In the present case it
is the Respondent State which has raised the question by denying the
existence of a dispute between itself and the Applicant States. The fact
that the Respondent raised the point with reference to Article 7 of the
Mandate (which is assumed, for purposes of argument, to be in force) clearly
was no bar to the Court's considering the question of the existence of a
dispute from the point of view of the consequences to be drawn from a
negative finding on that issue on the basis of the Statute and the Rules:
independently, therefore, of the issue whether Article 7 of the Mandate is
at present in force.
This is a question which, strictly speaking, does not relate to the
jurisdiction of the Court: a problem which, indeed, arises prior to any
question of jurisdiction, for the very simple reason that it is only in
relation to a genuinely existing dispute that it is possible to raise the
question whether such a dispute is or is not subject to the jurisdiction of
the Court. It follows that if the Court finds that no dispute exists between
the parties, it will not be called on to pass upon its jurisdiction itself;
it must, in that case, confine itself to a finding that the claim is
inadmissible.
3. It must be pointed out that, although, as will be seen hereafter, a
dispute cannot exist without a certain attitude of the will of one, at
least, of the parties, a dispute is a fact capable of being objectively
found. A dispute is one thing; the opinion of one or other of the parties as
to the existence of a dispute is something different. In its Opinion on the
Interpretation of Peace Treaties the Court said: "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."
(I.C.J. Reports 1950, p. 74.) But it might equally be said: the mere
assertion of the existence of a dispute by one of the parties does not prove
that such a dispute really exists.
If no dispute exists it is not possible to set the machinery of the Court in
motion. In accordance with the Statute and the Rules proceedings before the
Court can only be instituted on condition [p 566] that a dispute really
exists; the opinion of one of the parties as to the existence of a dispute
is by no means sufficient.
4. There is one further preliminary observation to be made. The existence of
a dispute must be established with reference to the time when the
Application was filed. This principle was recognized and applied by the
Permanent Court in its Judgment in the case concerning the Electricity
Company of Sofia and Bulgaria. In this Judgment the Court declared that the
Belgian Application could not be entertained ["irrecevable"] in so far as
concerned part of the claim, on the ground that the Belgian Government had
not proved that, before the filing of the Application, a dispute had arisen
between the Governments respecting the Bulgarian law of 3 February 1936
(P.C.I.J., Series A/B, No. 77, p. 83). In this connection the Permanent
Court considered the matter from the point of view of the Treaty of 1931 as
well as from the point of view of the declarations of adherence to the
Optional Clause. Thus, by this reference to the Optional Clause, the Court
gave an interpretation, although an indirect one, of the system of the
Statute.
II
I. South Africa has referred, as have Ethiopia and Liberia, to the
definition of a dispute given by the Permanent Court in its 1924 Judgment in
the Mavrommatis Concessions case. Rut that was no more than a first attempt
at definition. After so many years, it is not, in my opinion, possible to
keep to that definition in disregard of the thorough analysis to which the
concept of an international dispute has since been subjected by writers.
The definition given by the Permanent Court is as follows: "A dispute is a
disagreement on a point of law or fact, a conflict of legal views or of
interests between two persons." (P.C.I.J., Series A, No. 2, p. II.) Since a
disagreement on a point of law and a conflict of legal views are the same
thing, it may be said that, according to the Permanent Court's definition, a
dispute may consist either of a disagreement on a point of law or fact or of
a conflict of interests.
As to a disagreement upon a point of law or fact, it is to be observed that,
while such a disagreement may be present and commonly (but not necessarily)
is present where there is a dispute, the two things (disagreement and
dispute) are not the same. In any event it is abundantly clear that a
disagreement on a point of law or fact, which may indeed be purely
theoretical, is not sufficient for a dispute to be regarded as existing.
As to a conflict of interests, it is quite true that, as will be seen
hereafter, a dispute necessarily bears a certain relationship with a [p 567]
conflict of interests (real or supposed). But a conflict of interests is
likewise not-the same thing as a dispute. A conflict of interests can
moreover exist without there being any corresponding dispute. This case is
in no way exceptional; it is, on the contrary, the normal case. It is
sufficient to reflect that international society as a whole is the result of
relationships existing between the interests of different States; interests
which are very frequently opposed without its being necessary on that
account to suppose that disputes exist between the States concerned.
2. In my opinion, a dispute consists, not of a conflict of interests as
such, but rather in a contrast between the respective attitudes of the
parties in relation to a certain conflict of interests. The opposing
attitudes of the parties, in relation to a given conflict of interests, may
respectively consist of the manifestations of the will by which each of the
parties requires that is own interest be realized. It is the case of a
dispute resulting, on one side, from a claim by one of the parties and, on
the other side, of the contesting of that claim by the other party. But it
may also be that one of the opposing attitudes of the parties consists, not
of a manifestation of the will, but rather of a course of conduct by means
of which the party pursuing that course directly achieves its own interest.
This is the case of a claim which is followed not by the contesting of the
claim but by the adoption of a course of conduct by the other party
inconsistent with the claim. And this is the case too where there is in the
first place a course of conduct by one of the parties to achieve its own
interest, which the other party meets by a protest.
It follows from what has been said that a manifestation of the will, at
least of one of the parties, consisting in the making of a claim or of a
protest is a necessary element for a dispute to be regarded as existing. By
this manifestation of the will the party in question asserts the requirement
of the realization of an interest of its own. It asserts, in the case of a
claim, the requirement that that interest be realized by means of a certain
course of conduct to be followed, or, in the case of a protest, the
requirement that its interest should have been realized by a course of
conduct on the part of the other party contrary to the course which was in
fact adopted.
3. The concept of a dispute which I have just given is not inconsistent with
what is said in Article 36, paragraph 2, of the Statute of the Court.
It appears from that provision that it is possible to refer to the Court a
question of international law or a question concerning the existence of a
fact. It is, however, beyond doubt that the existence of a question,
although the subject of controversy, on a point of law or fact is not
sufficient to enable that question to be referred to the Court. For that to
be possible, it is necessary that the question [p 568] should be in a
certain relationship with a dispute, in the sense that the settlement of the
dispute must depend upon the answer to be given to that question of law or
fact. In other words, where there is a dispute, it is possible that
proceedings should be instituted, not for the purpose of securing a decision
on the dispute as a whole, but solely to resolve a question of law or fact
which will affect the settlement of the dispute.
It is precisely "disputes" to which reference is made in paragraph 2 of
Article 36. This provision, however, in referring to disputes ,,concerning"
["ayant pour objet"] a question of international law or the existence of a
fact adopts a terminology which is not the most appropriate to indicate the
relationship which must exist between the dispute and the question to be
referred to the Court. It would be entirely correct to speak of a question
constituting the subject-matter [formant l�objet] of proceedings. It is less
correct to Say that a question constitutes the subject of a dispute [l'
objet d'un diff�rend] : to speak, for instance, as does paragraph 2 of
Article 36, of a dispute concerning [ayant pozrr objet] the existence of a
fact which, if established, would constitute a breach of an international
obligation. In the hypothesis envisaged by these words, the subject of the
dispute [l'objet du diff�vend] is the reparation claimed; the existence of
the fact, which might constitute a breach of an international obligation, is
the subject [objet], not of the dispute, but of a question the solution of
which is necessary for the settlement of the dispute.
III
I. On the basis of the concept of a dispute which I have indicated, it
becomes necessary to ascertain whether a dispute exists between South
Africa, on the one side, and Ethiopia and Liberia on the other, or between
South Africa and one or other of these two States. Or, more correctly, it is
necessary to ascertain whether a dispute existed at the time when each of
the two Applications was filed.
It is possible to think that in the present case there does exist one of the
constituents of a dispute, which consists in the course of conduct in fact
pursued by South Africa in the exercise of the Mandate over South West
Africa. It therefore becomes necessary to see whether in addition to that
element there was present the other element making it possible to Say that
there does exist a dispute. That is 'to Say, whether there was present an
opposing attitude on the part of Ethiopia and Liberia or on the part of one
or other of these two States. Such an attitude could consist only in a
manifestation of will: either in a prior claim designed to secure a course
of conduct by South Africa different from that in fact pursued; or in a
subsequent protest against that course of conduct.
Since what has to be ascertained is whether a dispute had arisen before the
institution of the present proceedings, it is necessary to ascertain
whether, before the filing of the Applications, there was a [p 569] claim or
a protest on the part of Ethiopia and Liberia. It follows that a claim or a
protest on the part of those States which it might. be sought to infer from
the Applications themselves or from the pleadings in the case cannot be
taken into account, because they cannot be regarded as the constituents of a
dispute having the character of a dispute existing prior to the filing of
the Applications.
2. It would only be possible to speak of a claim by Ethiopia and Liberia, as
providing a constituent element of a dispute between those States and South
Africa, if the course of conduct of South Africa constituting the
subject-matter of the claim had been regarded by Ethiopia and Liberia as
susceptible of realizing an interest which was the interest of those States.
Similarly, it is only if a certain course of conduct by South Africa was
considered by Ethiopia and Liberia as infringing some interest of these
latter States that it would be possible to speak of a protest by those
States susceptible of giving rise to a dispute between them and South
Africa.
The Respondent, in its third Preliminary Objection, denied that the
interests of the Applicants or of their nationals were in issue. The
Respondent referred, in this connection, to the provisions of the Mandate
and in particular to Article 7.
3. So far as interest is concerned, a distinction must be drawn between
certain problems which are entirely different.
A question might arise with regard to the interpretation of the substantive
provisions of the Mandate, for the purpose of ascertaining what are the
interests of States Members of the League of Nations which these provisions
are designed to protect by conferring upon those States corresponding
subjective rights. This is a question touching the merits of the case: a
question which, as such, could not be examined in the present phase of the
proceedings.
A different question, although to some extent connected with the previous
one, is that concerning the interpretation of the clause contained in
Article 7, paragraph 2, of the Mandate. Since this clause refers to disputes
relating to the interpretation or the application of the provisions of the
Mandate, it might be asked what interests of a State Member of the League of
Nations have to be affected by, a dispute to make it possible to regard that
dispute as within the terms of Article 7 of the Mandate. If the clause is
regarded as a true jurisdictional clause (which in my view is by no means
certain) the question thus stated would be one relating to the jurisdiction
of the Court.
But there is yet another question: a question which indeed is a preliminary
one in relation to the question of jurisdiction. It is necessary to
determine, not whether a certain dispute is or is not subject to the
jurisdiction of the Court, but whether any dispute [p 570] whatever exists
between the Parties. This question could arise with reference to Article 7
of the Mandate which, clearly, could not operate if no dispute existed. But,
as has been said, this same question must first and foremost arise with
reference to the provisions of the Statute and the Rules of Court. It is
necessary to determine whether it is possible to deny the existence of a
dispute between the Parties, by denying, as South Africa has done, that any
interests of the Applicant States or of their nationals are involved.
4. The answer to such a question could not be other than in the negative.
I have said that a dispute must necessarily be in a certain relationship
with a conflict of interests, because it "is the result of opposing
attitudes by the parties with regard to a conflict of interests. But this
does not mean that a conflict of interests must genuinely exist before a
dispute can be said to exist. Instead of a genuine conflict of interests,
there could be a conflict of interests existing only in the subjective
representation of one of the parties. This applies not only to the
relationship of conflict between the two interests but also to the issue of
the existence of an interest. Each State is the judge of its own interest.
If a State, believing itself to have a certain interest, advances a claim
designed to secure a particular course of conduct which it considers
appropriate to satisfy its interest, or makes a protest against a course of
conduct by another State which it regards as infringing its interest, that
claim or that protest may well constitute one of the elements of a dispute,
independently of the real existence of the interest in question.
It is unnecessary for me to Say that, when I speak of interest, I am using
that word in its true sense. I disregard any protection which the law may
accord to a certain interest by granting a subjective right or by the means
(known to municipal rather than to international law) of what is referred to
as a legitimate interest. I refer solely to an interest as such, that is to
Say, what might be called a material interest, in contrast with a legal or
legitimate interest.
5. From what I have just said it follows that if, before the filing of the
Applications, there had been, on the part of Ethiopia and Liberia, a claim
or a protest directed against South Africa and relating to an interest
regarded by the two former States as being their interest, the existence of
a dispute could not be denied by contesting the existence of that interest.
The attitude of Ethiopia and Liberia would in this respect be decisive. The
reference, by Ethiopia and Liberia, to an interest regarded by them as being
their interest, might be inferred from the fact that these States had
invoked (as they subsequently did in the proceedings before the Court) the
provisions of the Mandate in order to derive there-[p 571]from a subjective
right (or a legitimate interest) which pertained to them in respect of the
exercise of the Mandate. The actual existence of that subjective right (or
legitimate interest) would be of no importance in respect of the question
with which we are at present concerned. The mere assertion of the subjective
right (or of the legitimate interest) would be decisive because it would
imply the assertion, by Ethiopia and Liberia, of a material interest
belonging to them.
IV
1. In what way are the Applicants States said, before the filing of the
Applications, to have made known their views concerning the exercise of the
Mandate for South West Africa ?
It has been said, in the first place, that both Ethiopia and Liberia had
directly participated in the debates, deliberations and proceedings of the
General Assembly of the United Nations and of the Fourth Committee of the
General Assembly, making clear their position on the matters in dispute.
Moreover, Ethiopia was a member of the Committee on South West Africa
established by the General Assembly in 1953 to negotiate with South Africa
with a view to the implementation of the Court's Advisory Opinion of II July
1950.
Leaving aside the direct participation of the Applicant States in the
activities of the above United Nations organs, it has been asserted that
negotiations with South Africa were conducted, on behalf of the Applicant
States "and other Members of the United Nations", by the United Nations Ad
Hoc Committee on South West Africa and by the United Nations Good Offices
Committee (and in respect of Liberia also by the aforementioned Committee on
South West Africa established in 1953, of which Liberia itself was not a
member).
2. As regards the direct participation of the Applicant States in the
activities of certain United Nations organs, it must be observed that, by
such participation, those States acted solely in their capacity as members
of a collegiate organ of the United Nations. Acting in that capacity they
made statements of intention designed to be combined with corresponding
statements by other members of the collegiate organ so as to shape the
intention of that organ and, thereby, the intention of the United Nations.
Acting in their capacity as members of a United Nations collegiate organ
Ethiopia and Liberia took up a position from the viewpoint of the
Organization. They were guided not by their individual interest but by what
they considered to be the interest of the Organization. They had in mind the
exercise of an alleged right of the Organization and not of a right
belonging to them individually.
In the Applications it is stated that Ethiopia and Liberia have [p 572]
continuously sought to assert and protect their legal interest in the proper
exercise of the Mandate by disputing and protesting the violation by South
Africa of its duties as Mandatory. If, as in the absence of other
information in this connection it seems necessary to assume, this assertion
is intended to refer to statements made by Ethiopia and Liberia in United
Nations organs, it may readily be observed that the disputations and
protestations sought to be inferred from such statements cannot be
considered as the means for Ethiopia and Liberia of asserting an interest
which is their own interest.
That being so, it is not possible to regard the attitude taken by Ethiopia
and Liberia in United Nations organs as one of the elements necessary for a
dispute to be considered as existing between those States on the one hand
and South Africa on the other.
3. This conclusion is not necessarily linked with the view that the United
Nations must be recognized as having a legal personality which is distinct
from the personality of the Member States.
From the standpoint of such a view (which is the most widely held and one
accepted by the Court) a very clear distinction would have to be made
between the activities of the Organization on the one hand and those of
Member States on the other. Contrariwise, for the doctrine which denies the
Organization a legal personality of its own, the activities of organs of the
United Nations would legally be activities of the Member States. However,
that would have no effect on the answer to the question whether a dispute
exists between South Africa on the one side and Ethiopia and Liberia on the
other; a question which would still have to be answered in the negative. In
fact, the manner in which the attitude adopted by Ethiopia and Liberia in
United Nations organs would have to be appraised would in no wise be
altered, even if it were approached from the standpoint of the
above-mentioned doctrine. It would still be an attitude not guided by the
individual interest of those States; it matters little that, on this
approach, it is not the interests of the Organization but rather the
collective interests of its States Members which would have to be regarded
as involved.
4. However, still from the standpoint of the doctrine which denies legal
personality to the Organization, there is another aspect to be considered,
and one which does not concern particularly Ethiopia and Liberia and the
other States which took a similar attitude in United Nations organs, but all
the Member States of the United Nations, irrespective of their participation
in United Nations organs which took an interest in the problem of South West
Africa and irrespective also of their attitude in those organs with regard
to that problem.
It has already been said that from the standpoint of the doctrine [p 572]
which denies legal personality to the Organization, the activities of United
Nations organs must legally be regarded as being activities of all the
States Members. Must it be concluded from this that it is possible to infer
from certain resolutions of United Nations organs an attitude which is that
of all the States Members ? An affirmative answer to this question might be
regarded as implied in the assertion of the Applicants recalled above to the
effect that certain organs of the United Nations acted on behalf of the
Applicants "and other Members of the United Nations" (this assertion
necessarily presupposing a negative reply to the question of the legal
personality of the Organization). The consequence of such an answer would be
that a dispute would have to be regarded as existing between South Africa on
the one side, and, on the other, all the States Members of the United
Nations and not only those which, like Ethiopia and Liberia, took up a
certain position in United Nations organs with regard to the problem of
South West Africa. This is precisely the result which the Applicants seem to
arrive at.
Thus from the standpoint which I have just described it would be necessary
to have regard not to the statements made by Ethiopia and Liberia in United
Nations organs but rather to the decisions of those organs, which in law
would be attributed to all the States Members of the United Nations and
hence to Ethiopia and Liberia also. However, those decisions, in the same
way as the statements and votes of the States Members of the organ taking
them (or, rather, even more so than such statements or votes), are guided,
not by the individual interest of each State Member of the United Nations,
but rather by the collective interest of all the States Members as a group.
Consequently, such decisions are not the expression of a position taken by
each State Member of the United Nations considered individually with regard
to the problem of the exercise of the Mandate for South West Africa, and so
they are not capable of giving rise to a dispute between each State Member,
considered individually, and South Africa.
V
1. For the reasons which I have given, the conclusion must in my view be
reached that there was not a dispute between Ethiopia and Liberia, on the
one side, and South Africa, on the other, at the time of filing of the
Applications. It follows that the claims put forward in those Applications
should be held to be inadmissible.
2. Since I have been discussing the inadmissibility of the claims, I
consider it necessary to add a few words concerning the terms
"admissibility" and "inadmissibility", which, in the use which has
frequently been made of them, have been given different meanings.[p 574]
They have sometimes been used to indicate the presence or absence of
jurisdiction (as in the Judgment of the Permanent Court in the Phosphates in
Morocco case�P.C.I.J., Series A/B No. 74, p. 29�� which decides in the
French text that the Application is net "recevable", and in the English text
that it "cannot be entertained"). Inadmissibility has also been discussed
(as was done by this Court in the Nottebohm case�I.C.J. Reports I955, p. 26)
even in connection with the lack of nationality of the claim, which latter
question clearly goes to the merits of the case. I need not repeat here that
the Judgment of the Permanent Court in the Electricity Company case declared
that the Belgian Application could not be entertained ["irrecevable"], in so
far as concerned part of the claim, precisely because of the non-existence
of a dispute.
It does not appear to me correct to qualify a claim as inadmissible because
of lack of fulfilment of one of the conditions on which the substantive
right of the Applicant depends; the claim, far from being deemed
inadmissible, is then judged as to its merits and dismissed by a decision
which is indeed a decision on the merits. Admissibility can relate only to
conditions lack of fulfilment of which prevents a decision on the merits.
Within these limits, however, it is quite possible to give the term a very
wide meaning so as to refer to all the conditions having that character,
including jurisdiction.
The question of terminology is of only secondary importance. It will be
sufficient to observe that if the term is used in the very wide sense to.
which I have just referred, it must be recognized at the outset that among
the conditions for admissibility there are others than those relating to
jurisdiction. But what is above all of interest here is the fact that among
these latter conditions there are some which must be considered before the
question of jurisdiction is considered. One of these, for example, is the
condition of validity of the application, because a Court which is not
validly seized cannot adjudicate even on its jurisdiction. Another such is
the condition of the existence of a dispute, since it is only with relation
to a genuinely existing dispute that it is possible to decide whether such a
dispute is subject or not to the jurisdiction of the Court to which it has
been referred.
(Signed) Gaetano Morelli.
[p 575]
DISSENTING OPINION OF JCDGE VAN WYK
The jurisdiction of this Court is provided for in Articles 36 and 37 of its
Statute. It is common cause that paragraphs 2-5 of Article 36 do not apply
in this case, and it is therefore only necessary to refer to the first
paragraph of Article 36, which reads as follows:
"1. 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."
This is not a case which has been referred to this Court by the parties, nor
is it a matter specially provided for in the Charter. Article 37 provides
inter alia that whenever a treaty or convention in force provides for
reference of a matter to the Permanent Court of International Justice, the
matter shall be referred to this Court. The legal effect of these provisions
is that this Court has no jurisdiction in the present matter unless there
exists a treaty or convention in force which specially provides for
reference of this matter to this Court or the Permanent Court of
International Justice.
From the above it is clear�indeed, it is common cause�that the jurisdiction
of this Court depends upon consent (see Case concerning the Factory at
Chorz�w, P.C.I.J., Series A, No. 9, 26 July 1927, p. 32, and Rosenne's
International Court of Justice, 1957, pp. 260, 318-320), and in this case
such consent must be embodied in a treaty or convention in force. Consent to
jurisdiction cannot be presumed (see Aerial Incident of 27 July I955, I.C.J.
I959, p. 142). Sir H. Lauterpacht, in The Development of International Law
by the International Court, 1958, page 91, states the rule as follows:
"The Court ... has emphasized repeatedly the necessity for extreme caution
in assuming jurisdiction, which must be proved up to the hilt. Numerous
Judgments show the Court as 'bearing in mind the fact that its jurisdiction
is limited, that it is invariably based on the consent of the Respondent and
only exists in so far as this consent has been given'. Nothing should be
done which creates the impression that the Court, in an excess of zeal, has
assumed jurisdiction where none has been conferred upon it."
See also Manley O. Hudson in The Permanent Court of International Justice,
1920-1942, page 660.
The Applicants claim that this Court has jurisdiction to determine the
issues raised in their Applications and Memorials by virtue of [p 576] the
provisions of Article 7 of the Mandate Declaration for South West Africa
read with Article 22 of the Covenant of the League of Nations, and Article
37 of the Statute of this Court and Article 80 (1) of the Charter of the
United Nations. This means that the Applicants contend that the aforesaid
provisions constitute terms of treaties or conventions in force which embody
the consent of the Respondent to the present matter being submitted to this
Court by the Applicants.
It is therefore necessary to determine the meaning and legal effect of
Article 7 of the Mandate Declaration as read with Article 22 of the Covenant
of the League of Nations, as well as the meaning and legal effect of the
aforesaid provisions of the Statute of this Court and the Charter of the
United Nations. This must be done in accordance with the principles of
construction, as applicable in international law in terms of Article 38 of
the Statute of this Court, which reads as follows:
"1. The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing
rules expressly recognized by the contesting States ;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a
case ex aequo et bono, if the parties agree thereto."
Article 59, referred to in Article 38 (d), provides that a decision of this
Court has no binding force except between the parties and in respect of that
particular case. It follows that "judicial decisions" mentioned in Article
38 (d) include the decisions of this Court. There are no parties to Opinions
of this Court and in terms of Article 59 such opinions have no binding
force. It follows that Opinions of this Court, even if they relate to the
same legal issues now being considered, cannot be more than a subsidiary
means for the determination of the rules of international law. The general
principles of law recognized by civilized nations must always prevail where
those principles are in conflict with any views stated in previous decisions
of this Court.
There can be no doubt that all contracts, including treaties and conventions
that operate in international law, owe their effect in law to the common
consent of the parties thereto: [p 577]
Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports
1951, p. 15; at p. 21:
"It is well established that in its treaty relations a State cannot be bound
without its consent... It is also a generally recognized principle that a
multilateral convention is the result of an agreement freely concluded upon
its clauses."
Page 26:
"... no State can be bound by a reservation to which it has not
consented...".
Pages 31-32, per Judges Guerrero, Sir Arnold McNair, Read and Hsu Mo :
"The consent of the parties is the basis of treaty obligations... The fact
that in so many of the multilateral conventions of the past hundred years,
whether negotiated by groups of States or the League of Nations or the
United Nations, the parties have agreed to create new rules of law or to
declare existing des of law, with the result that this activity is often
described as 'legislative' or 'quasi-legislative', must not obscure the fact
that the legal basis of these conventions, and the essential thing that
brings them into force, is the common consent of the parties."
See also Ralston, J. H. The Law and Procedure of International Tribunals,
Revised Edition (Stanford: Stanford University Press, 1926), p. 6.
For this reason, there exists the universally accepted basic principle
applicable in the interpretation of all contracts, including treaties,
conventions, and other international agreements that one should endeavour to
arrive at the true common intention of the parties relative to the agreement
in question as it existed at the time agreement was reached.
This rule appears to be self-evident and is common cause but, as it is of
such crucial importance in this matter it merits detailed consideration.
The rule in the United Kingdom is stated in Chitty on Contracts, 22nd
Edition (1961) at page 583, as follows:
"The object of all construction of the terms of a written agreement is to
discover therefrom the intention of the parties to the agreement."
Article 1156 of the French Code Civil provides:
"On doit dans les conventions rechercher quelle a �t� la commune intention
des parties contractantes, plut�t que de s'arr�ter au sens litt�ral des
termes."
Similar rules apply in every legal system that I have been able to refer to,
e.g., Belgium, Code Civil Art. 1156; The Netherlands, Burgerlijk Wetboek
Art. 1379; Italy, Code Art. 1362; Germany,[p 578] B�rgerliches Gesetzbuch
Art. 133; Switzerland, Code of Obligations Art. 18; Greece, Code Art. 173;
Hungary, Code Art. 265; Spain, Code Art. 1259; Poland, Code Art. 108; Egypt,
Code Civil Mixte Art. 199; and Code Civil Indig�ne Art. 138; Brazil, Code
Art. 85; Chile, Code Art. 1560. There is abundant authority that the same de
applies in international law:
"Colombian-Peruvian asylum case, Judgment of November 20th, 1950: I.C.J.
Reports 1950, p. 266"; per Judge Read at p. 320:
"There is, however, a principle of international law which is truly
universal. It is given equal recognition in Lima and in London, in Bogota
and in Belgrade, in Rio and in Rome. It is the principle that, in matters of
treaty interpretation, the intention of the parties must prevail."
"Case concerning rights of nationals of the United States of America in
Morocco, Judgment of August 27th, 1952: I.C.J. Reports 1952, p. 176"; at pp.
191-192:
"From either point of view, this contention is inconsistent with the
intentions of the parties to the treaties now in question. This is shown
both by the wording of the particular treaties, and by the general treaty
pattern which emerges from an examination of the treaties made by Morocco
with France, the Netherlands, Great Britain, Denmark, Spain, United States,
Sardinia, Austria, Belgium and Germany over the period from 1631 to 1892.
These treaties show that the intention of the most-favoured-nations clauses
was to..."
Ralston, J. H. The Law and Procedure of International Tribunals, Revised
Edition (Stanford: Stanford University Press, I926), p. 27:
"As is manifest from all of the foregoing, the intention of the parties must
rule, and the principles laid down are after all but means of determining,
as scientifically as the subject will permit, what the parties' intentions
may have been."
Schwarzenberger, G. International Law, Second Edition (London: Stevens and
Sons, 1949), Vol. 1, p. 208:
"The purpose of the interpretation of an international treaty is to
ascertain its meaning, i.e. the intention of the contracting parties. As the
Permanent Court of Arbitration had already emphasized in the Island of Timor
case (1914). 'here again, and always, we must look for the real and
harmonious intention of the parties when they bound themselves'."
Lauterpacht, H. "Restrictive Interpretation and the Principle of
Effectiveness in the Interpretation of Treaties", The British Year Book of
International Law, Vol. XXVI (1949), pp. 48-85; at p. 83: [p 579]
"It is the intention of the author of the legal rule in question� whether it
be a contract, a treaty, or a statute�which is the starting point and the
goal of all interpretation. It is the duty of the Judge to resort to all
available means�including rules of construction� to discover the intention
of the parties; to avoid using rules of interpretation as a ready substitute
for active and independent search for intentions; and to refrain from
neglecting any possible clues, however troublesome may be their examination
and however liable they may be to abuse, which may reveal or render clear
the intention of the authors of the rule to be interpreted."
Lauterpacht, H. The Development of International Law by the International
Court (London: Stevens and Sons, 1958), p. 227:
"... the fundamental principle of interpretation, that is to Say, 'that
effect is to be given to the intention of the parties'."
Fitzmaurice, G. G. "The Law and Procedure of the International Court of
Justice 1951-1954: Treaty Interpretation and Other Treaty Points", The
British Year Book of International Law, Vol. XXXIII (1957), pp. 203-293, at
p. 204:
"With the exception of those who support the extreme teleological school of
thought, no one seriously denies that the aim of treaty interpretation is to
give effect to the intentions of the parties."
Through the ages lawyers have evolved auxiliary rules of construction to
assist in the determination of the common intention of the parties to an
agreement, and as these des are based on logic, common sense and long
experience, it is not surprising that they are substantially the same in
almost all civilized States. It is also, therefore, not surprising that
international tribunals have adopted them without any significant changes.
The purpose of these rules is to assist the Court in the evaluation of the
admissible evidence �including of course the instruments in question
themselves� relating to the intention of the parties. Inasmuch as evidence
which is logically relevant in an enquiry as to the intention of the parties
to an agreement is sometimes excluded by the operation of rules of law, e.g.
the rule of estoppel, a conclusion based on the admissible evidence may
sometimes lead to somewhat artificial results. Thus a party who has signed
an instrument which records his assent to the agreement recorded therein is
deemed to have agreed to its .terms, and cannot be heard to Say that he
negligently signed the instrument without reading it or without studying it
properly. These considerations, however, can never afford a valid excuse for
not determining the intention of the parties. as far as is reasonably
possible. [p 580]
One must also bear in mind that parties frequently deliberately use wide
terms so as to provide for all possible situations, foreseen and unforeseen,
and it follows that when a situation not foreseen by the parties arises
which falls within the meaning of the words employed by them they are deemed
to have had a common intention in regard thereto.
The auxiliary rules of construction are prima facie pointers to the probable
intention of the parties. One must always bear in mind that their sole
function is to aid the Court in its task of determining the true common
intention of the parties. Lord McNair aptly remarks, in The Law of Treaties
1961, page 366, as follows:
"The many maxims and phrases which have crystallized out and abound in the
text-books and elsewhere are merely prima facie guides to the intention of
the parties and must always give way to contrary evidence of the intention
of the parties in a particular case. If they are allowed to become our
masters instead of our servants these guides can be very misleading."
Rights originating from a contract may be divided, inter alia, into personal
rights and real rights but, whether personal or real, such rights can never
embrace anything not included in the common intention of the parties. A
treaty or convention may create an international institution or it may
define the status of a territory but its meaning and effect depend primarily
on the intention of the parties thereto. The rule may therefore be stated to
be that the existence, the measure, and the meaning of treaty rights and
obligations are determined in accordance with the common intention of the
parties to the instrument in question and, in determining this common
intention, the Court invokes the aid of the accepted rules of construction.
In Certain Expenses of the United Nations (Opinion of 20 July 1962, p. 157)
the following appears:
"On the previous occasions when the Court has had to interpret the Charter
of the United Nations, it has followed the principles and rules applicable
in general to the interpretation of treaties, since it has recognized that
the Charter is a multilateral treaty."
These rules will be applied in the interpretation of the Covenant of the
League of Nations, the Mandate Declaration for South West Africa and the
Charter of the United Nations; and it is convenient to deal with the more
important rules at this stage.
Inasmuch as the aim of the parties to a written instrument is to set forth
their agreement in written language which renders their own intention clear
to themselves and to others, it follows that the most effective method of
arriving at this common intention, when called upon to construe a written
agreement, is to find it in the ordinary, normal, natural, and unrestrained
meaning of the words [p 581] in the instrument in the context in which they
appear. See Halsbury's Laws of England, 3rd Edition, Volume II, page 632;
Cheshire and Fifoot Law of Contracts, 5th Edition, page 1056.
The rule with regard to statutes is the same�see Maxwell on Interpretation
of Statutes, 11th Edition, page 3. Where the words of an instrument in their
context make sense, there should be no reason for doubting that they express
the common intention of the parties and the need for interpretation does not
really arise.
A similar rule has been applied by this Court, and by its predecessor :
Acquisition of Polish Nationality, P.C.I.J., Series B, No. 7, 15 September
1923, p. 20:
"The Court's task is clearly defined. Having before it a clause which leaves
little to be desired in the nature of clearness, it is bound to apply this
clause as it stands, without considering whether other provisions might with
advantage have been added to or substituted for it."
Competence of Assembly regarding admission to the' United Nations, Advisory
Opinion: I.C.J. Reports 1950, p. 4; at p. 8:
"The Court considers it necessary to say that the first duty of a tribunal
which is called upon to interpret and apply the provisions of a treaty, is
to endeavour to give effect to them in their natural and ordinary meaning in
the context in which they occur. If the relevant words in their natural and
ordinary meaning make sense in their context, that is an end of the matter.
If, on the other hand, the words in their natural and ordinary meaning are
ambiguous or lead to an unreasonable result, then, and then only, must the
Court, by resort to other methods of interpretation, seek to ascertain what
the parties really did mean when they used these words. As the Permanent
Court said in the case concerning the Polish Postal Service in Danzig
(P.C.I.J., Series B, No. II, p. 39):
'It is a cardinal principle of interpretation that words must be interpreted
in the sense which they would normally have in their context, unless such
interpretation would lead to something unreasonable or absurd.'
When the Court can give effect to a provision of a treaty by giving to the
words used in it their natural and ordinary meaning, it may not interpret
the words by seeking to give them some other meaning."
See also Interpretation of Peace Treaties (second phase), Advisory Opinion:
I.C.J. Reports 1950, p. 221; at p. 227,
Colo'mbian-Peruvian asylum case, Judgment of November 20th, 1950: I.C.J.
Reports 1950, p. 226, at p. 279, [p 582] Case concerning rights of nationals
of the United States of America in Morocco, Judgment of August 27th, I952:
I.C.J. Reports 1952, p. 176, at p. 189,
Anglo-Iranian Oil Co. case (jurisdiction), Judgment of July 22nd, 1952, p.
93; at p. 104.
Where it appears from the context that words were not intended to be used in
their ordinary sense, such words should be construed in harmony with the
context. See Halsbury's Laws of England, 3rd Edition, Vol. II, pages
388-389. The intention of the parties should, therefore, be gathered from
the instrument as a whole rather than from any particular words they may
have used.
From the above it follows that where words or terms of an instrument are
capable of two meanings the object with which they were inserted, as
revealed by the instrument or any other admissible evidence, may be taken
into consideration in order to arrive at the sense in which they were used
and where one interpretation is consistent with what appears to have been
the intention of the parties and another repugnant to it, the Court will
give effect to this apparent intention. The Court will always prefer an
interpretation which renders an agreement valid and effective to an
interpretation which renders it void and ineffective, provided the former
can fairly be said not to be inconsistent with the intention of the parties.
This principle is stated in the rule Ut res magis valeat quam pereat, vide
Halsbury's Laws of England, 3rd Edition, Vol. II, page 391; Craies on
Contracts, General Principles, 2Ist Edition, page 152; Burgerlijk Wetboek,
Article 1380; Italian Code, Article 1357; French Code Civil, Article 1157.
The rule in the United States is stated as follows in Williston on
Contracts, Revised Edition, Rev. 8, Vol. 3, Section 620:
"Secondary Rules: The writing will be interpreted if possible so that it
shall be effective and reasonable. An interpretation which makes the
contract or agreement lawful will be preferred over one which would make it
unlawful; an interpretation which renders the contract or agreement valid
and its performance possible will be preferred to one which makes it void or
its performance impossible or meaningless; an interpretation which makes the
contract or agreement fair and reasonable will be preferred to one which
leads to harsh or unreasonable results... But the mere fact that parties
have made an improvident bargain will not lead a court to make unnatural
implications or artificial interpretations. A court will not under the guise
of interpretation write a new contract for the parties."
This principle was recognized by the Permanent Court of International
Justice in the case of Chorz�w, Series A, No. 9, page 24:[p 583]
"Account must be taken not only of the historical development of arbitration
treaties, as well as of the terminology of such treaties, and of the
grammatical and logical meaning of the words used, but also and more
especially of the function which, in the intention of the contracting
Parties, is to be attributed to this provision. The Geneva Convention
provides numerous means of redress to secure the observation of its clauses
and it does so in ways varying according to the subjects dealt with under
the different Heads, Parts or other subdivisions of the Convention. Article
23 contains provisions of this kind in so far as concerns Articles 6 to 22
which form the greater portion of Head III of the First Part."
See also Corfu Channel case, Judgment of April 9, 1949, I.C.J. Reports 1949,
page 4, at page 24, and Reparation for Injuries suffered in the Service of
the United Nations, Advisory Opinion, I.C.J. Reports, 1949, page 174, at 179
and 183. In Interpretation of Peace Treaties (second phase), Advisory
Opinion: I.C.J. Reports 1950, p. 221, the following appears:
Page 229:
"The breach of a treaty obligation cannot be remedied by creating a
Commission which is not the kind of Commission contemplated by the Treaties.
It is the duty of the Court to interpret the Treaties, not to revise them.
The principle of interpretation expressed in the maxim: Ut res magis valeat
quam pereat, often referred to as the rule of effectiveness, cannot justify
the Court in attributing to the provisions for the settlement of disputes in
the Peace Treaties a meaning which, as stated above, would be contrary to
their letter and spirit...
The ineffectiveness in the present case of the clauses dealing with the
settlement of disputes does not permit such a generalization."
Pages 229-230:
"... Normally each party has a direct interest in the appointment of its
commissioner and must in any case be presumed to observe its treaty
obligation. That this was not so in the present case does not justify the
Court in exceeding its judicial function on the pretext of remedying a
default for the occurrence of which the treaties have made no provision."
In the Anglo-Iranian Oil Co. case it was stated:
"It is my duty to interpret the Declaration and not to revise it. In other
words, I cannot, in seeking to find the meaning of these words, disregard
the words that as actually used, give to them a meaning different from their
ordinary and natural meaning, or add words or ideas which were not used in
the making of the Declaration."
Lord McNair in The Law of Treaties (1961), page 383, deals with the rule as
follows:
"The rule of effectiveness must mean something more than the duty of a
tribunal to give effect to a treaty; that is the obvious and [p 584]
constant duty of a tribunal, that is what it is there to do. The rule must
surely mean, in the mind of the party involving it: 'If you (the tribunal)
do not construe the treaty in the way that I submit to you to be correct,
this treaty will fail in its object'. But that is a petitio principi,
because as has been submitted in the previous chapter, it is the duty of a
tribunal to ascertain and give effect to the intention of the parties as
expressed in the words used by them in the light of the surrounding
circumstances. Many treaties fail�and rightly fail�in their object by reason
of the words used, and tribunals are properly reluctant to step in and
modify or supplement the language of the treaty."
From the above it is clear that the rule of effectiveness only applies where
a provision is obscure. It does not permit. the departure from the terms of
an instrument and, Save where a term is implied in accordance with
principles to be stated infra, it does not permit one to read into a treaty
stipulations for which no express provision was made in the text itself.
As the object of interpretation is to arrive at the intention which existed
when the agreement was recorded, it follows that words or phrases must be
given that meaning which they bore at the time when the instrument in
question was executed. In the Minquiers and Ecr�hous case, Judgment of
November 17th, 1953: I.C.J. Reports 1953, page 91, Judge Carneiro remarked:
"I do not regard the Treaty of Paris as a treaty of frontiers. To do so
would be to fall into the very error which we have been warned against: an
instrument must not be appraised in the light of concepts which are not
contemporaneous with it."
The next question to be considered is to what extent extrinsic evidence is
admissible to assist in the determination of the intention of the parties
relative to an agreement which has been recorded in writing. Evidence of
surrounding circumstances to identify the parties or the subject-matter of a
contract is clearly admissible (vide Phipson, pages 637-638).
As regards other extrinsic evidence, however, the general rule is that an
instrument must be interpreted as it stands. The result is that this Court
will not have regard either to preparatory work which has preceded a written
instrument nor to the subsequent conduct of the parties if a text in itself
is clear. Where there is obscurity, the Court will have regard to extrinsic
evidence which may assist it in determining the intention of the parties
and, in such a case, it will have regard to the preparatory work as well as
to the subsequent conduct of the parties. In the Admission of a State to the
United Nations (Charter, Art. q), Advisory Opinion: I.C.J. Reports 1948,
this Court remarked:
"The Court considers that the text is sufficiently clear; consequently, it
does not feel that it should deviate from the consistent practice of the
Permanent Court of International Justice, according [p 585] to which there
is no occasion to resort to preparatory work if the text of a convention is
sufficiently clear in itself."
See also Competence of Assembly regarding admission to the United Nations,
Advisory Opinion: I.C.J. Reports 1950, p. 4; at page 8, and Ambatielos case
(first phase), I.C.J. Reports 1952, p. 28, at p. 45.
It would appear that it is not the practice of this Court to order the
excision from the record of any evidence of preparatory work which it may
consider to be inadmissible. Such evidence is either not referred to, or
merely relied upon to confirm a conclusion arrived at without it. See in
this regard Hudson, The Permanent Court of International Justice 1920-1942,
page 660, and Hogg, Minnesota Law Review, Vol. 44, No. 1, November 1949,
pages 28-35.
It seems that where the travaux pr�paratoires are before the Court there
should be no objection to its holding that the words of a particular
provision are clear and unambiguous, and, in the alternative, that even if
the words should not be held to be clear and unambiguous, the travaux
p�paratoires confirm the Court's construction.
Evidence of interpretation placed upon written instruments by the parties
subsequent to their execution is only admissible in case of obscurity. In
his Law of Treaties, page 21, Lord McNair remarks:
"Here we are on solid ground and are 'dealing with a judicial practice
worthy to be called a de, namely that, when there is a ' doubt as to the
meaning of a provision, or an expression contained in a treaty, the relevant
conduct of the contracting parties after the conclusion of the treaty
(sometimes called 'practical construction') has a high probative value as to
the intention of the parties at the time of its conclusion. This is both
good sense and good law."
In terms of the general rules stated in Competence of Assembly regarding
admission to the United Nations, Advisory Opinion: I.C.J. Reports 1950, page
8, quoted above, such evidence cannot be admitted to contradict clear and
unambiguous provisions. The rule was stated as follows in the Case
concerning the payment in gold of Brazilian Federal Loans contracted in
France: P.C.I.J. Ser. A, Nos. 20-21, Judgment No. 15, page 119:
"It is sought to apply the familiar principle that where a contract is
ambiguous, resort may be had to the manner of performance in order to
ascertain the intention of the parties."
In Certain Expenses of the United Nations, page 189, Sir Percy Spender
remarked:
"In any case subsequent conduct may only provide a criterion of
interpretation when the text is obscure, and even then it is [p 586]
necessary to consider whether that conduct itself permits of only one
inference (Brazilian Loans Case, P.C.I. J., Series A/B, Nos. 20/21, p. 119).
Except in the case where a party is by its conduct precluded from relying
upon a particular interpretation, with which type of case we are not
presently concerned, it can hardly control the language or provide a
criterion of interpretation of a text which is not obscure."
See also the Case concerning the payment of various Serbian Loans issued in
France, P.C.I.J. Reports, Ser. A, Nos. 20-22, p. 58; the Corfu Channel case,
Judgment of April 9th, 1949: I.C.J. Reports 1949, p. 25, and the Asylum
case: I.C.J. Reports 1953, pp. 323-324.
The above major principles of interpretation, as applied by this Court up to
1951, were summarized by Sir G. G. Fitzmaurice in the British Year Book of
International Law 1951, XXVIII, p. g; and in the British Year Book of
International Law 1957, XXXIII, p. 33, he reformulated these principles in
the light of the Court's work during the period 1951-1954 as follows:
"1. Principle of Actuality (or Textuality)
Treaties are to be interpreted primarily as they stand, and on the basis of
their actual texts.
II. Principle of the Natural and Ordinary Meaning
Subject to Principle VI below, where applicable, particular words and
phrases are to be given their normal, natural, and unstrained meaning in the
context in which they occur. This meaning can only be displaced by direct
evidence that the terms used are to be understood in another sense than the
natural and ordinary one, or if such an interpretation would lead to an
unreasonable or absurd result. Only if the language employed is
fundamentally obscure or ambiguous may recourse be had to extraneous means
of interpretation, such as consideration of the surrounding circumstances,
or travaux pr�paratoires.
III. Principle of Integration
Treaties are to be interpreted as a whole, and particular parts, chapters or
sections also as a whole.
Subject to the foregoing Principles:
IV. Principle of Effectiveness (ut res magis valeat quam pereat)
Treaties are to be interpreted with reference to their declared or apparent
objects and purposes; and particular provisions are to be interpreted so as
to give them their fullest weight and effect consistent with the normal
sense of the words and with other parts of the text, and in such a way that
a reason and a meaning can be attributed to every part of the text. [p 587]
V. Principle of Subsequent Practice
In interpreting a text, recourse to the subsequent conduct and practice of
the parties in relation to the treaty is permissible, and may be desirable,
as affording the best and most reliable evidence, derived from how the
treaty has been interpreted in practice, as to what its correct
interpretation is.
Footnote to this Principle. Where the practice has brought about a change or
development in the meaning of the treaty through a revision of its terms by
conduct, it is permissible to give effect to this change or development as
an agreed revision but not as an interpretation of its original terms."
To the above principles may now be added, on the basis of certain
pronouncements made in the 1951-1954 period, a sixth major principle, as
follows:
"VI. Principle of Contemporaneity
The terms of a treaty must be interpreted accordingly to the meaning which
they possessed, or which would have been attributed to them, and in the
light of current linguistic usage, at the time when the treaty was
originally concluded."
An agreement may be held subject to an implied or unexpressed term where
there arises from the agreement itself and the circumstances under which it
was entered into, an inference that the parties must have intended something
which they omitted to record. In this regard the object the parties sought
to achieve may be of importance. One must however bear in mind that the
object which the parties intended to achieve must itself be determined by
interpretation. It must also be emphasized that the major principle of
interpretation is that the intention of the parties must be found in the
meaning of the words actually used and courts in al1 legal systems guard
themselves against assenting to a proposed implication on any but the most
cogent grounds. For this purpose, safeguards have been laid down to avoid
assumptions of a higher degree of effectiveness than is inherent in the
intention conveyed by the express terms employed by the parties, read in the
light of the surrounding circumstances. Pollak on Contracts, 12th Edition,
page 195, remarks as follows:
"Interpretation has to deal not with conjectured but with manifest intent
and a supposed intent which the parties have not included in their chosen
and manifest form of expression cannot, Save for exceptional causes, be
regarded."
In Cheshire and Fifoot Law of Contract, 3rd Edition, page 129, the following
appears in regard to implied terms:
"The convenience of the doctrine is manifest, and it has often received the
doubtful compliment of citation by counsel as a last desperate expedient in
a difficult case. The Courts, however, have [p 588]recognized the danger of
undue elasticity, and have circumscribed its limits. Based upon the presumed
intention of the parties, it may not contradict or Vary the express terms of
the agreement. Nor can it be used simply to render the contract rather more
attractive in the eyes of reasonable men. It is for the parties. not for the
judges, to determine the nature of their liabilities. The doctrine can be
invoked only if an obligation, clearly intended as such, must fail to take
effect unless some obvious oversight is remedied; and, even so, the judges
will supply the minimum necessary to save the contract from shipwreck. The
test to be applied by the Court in deciding whether to make the implication
has been stated by several judges in much the same language.
'A term can only be implied', said Scrutton, L. J., 'if it is necessary in
the business sense to give efficacy to the contract, i.e., if it is such a
term that it can confidently be said that if at the time the contract was
being negotiated some one had said to the parties: 'What will happen in such
a case?' they would both have replied: 'Of course so and so will happen; we
did not trouble to say that; it is too clear.' "
In K. C. Sethi v. Partab Mull Rameshewar of England, aw Reports I950, Vol.
1, page 51, at page 59, Jenkins, L. J. remarked:
"One thing I think is clear about implied terms. I do not think that the
Court will read a term into a contract unless, considering the matter from
the point of view of business efficacy, it is clear beyond a peradventure
that both parties intended a given term to operate although they did not
include it in so many words."
See also Craies on Statute Law, 5th Edition, page 103. Lord McNair states
the rule as follows in his Law of Treaties, Page 436:
"Conditions should be implied only with great circumspection; for if they
are implied too readily, they would become a serious threat to the sanctity
of a treaty. Nevertheless the main object of interpretation of a treaty
being to give effect to the intention of the parties in using the language
employed by them, it is reasonable to expect that circumstances should arise
(as they do in the sphere of private law contracts) in which it is necessary
to imply a condition in order to give effect to this intention."
In Case concerning rights of nationals of the United States of America in
Morocco, Judgment of August 27th, 1952: I.C.J. Reports I952, p. 176; at p.
196 this Court remarked:
"The purposes and objects of this Convention were stated in its Preamble in
the following words: 'the necessity of establishing, on [p 589] fixed and
uniform bases, the exercise of the right of protection in Morocco and of
settling certain questions connected therewith...'. In these circumstances,
the Court cannot adopt a construction by implication of the provisions of
the Madrid Convention which would go beyond the scope of its declared
purposes and objects. Further, this contention would involve radical changes
and additions to the provisions of the Convention. The Court, in its
Opinion� Interpretation of Peace Treaties (Second Phase) (I.C.J. Reports
I950, p. 229)�stated: 'It is the duty of the Court to interpret the
Treaties, not to revise them'."
Page 198 :
"An interpretation, by implication from the provisions of the Act,
establishing or confirming consular jurisdiction would involve a
transformation of the then existing treaty rights of most of the twelve
Powers into new and autonomous rights based upon the Act. It would change
treaty rights of the Powers, some of them terminable at short notice, e.g.
those of the United States which were terminable by twelve months' notice,
into rights enjoyable for an unlimited period by the Powers and incapable of
being terminated or modified by Morocco. Neither the preparatory work nor
the Preamble gives the least indication of any such intention. The Court
finds itself unable to imply so fundamental a change in the character of the
then existing treaty rights as would be involved in the acceptance of this
contention."
Page 199 :
"This interpretation of the Act, in some instances, leads to results which
may not appear to be entirely satisfactory. But that is an unavoidable
consequence of the manner in which the Algeciras Conference dealt with the
question of consular jurisdiction. The Court can not, by way of
interpretation, derive from the Act a general rule as to full consular
jurisdiction which it does not contain. On the other hand, the Court can not
disregard particular provisions involving a limited resort to consular
jurisdiction, which are, in fact, contained in the Act, and which are still
in force as far as the relations between the United States and Morocco are
concerned."
See also Certain Expenses of the United Nations (Article 17, paragraph 2, of
the Charter), Advisory Opinion of 20 July 1962, Tirage Sp�cial, p. 13, and
"The Law and Procedure of the International Court of Justice: Treaty
Interpretation and certain other Treaty Points", The British Year Book of
International Law, Vol. XXVIII (1951), pp. 1-28; at p. 9.
The object and purpose of the parties to an instrument may be of
considerable importance where one has to choose between alternative possible
meanings of an ambiguous text, or where the issue is whether an inference of
tacit agreement does or does not arise necessarily in a particular respect.
As already pointed out, [p 590] however, the basic object of interpretation
is to arrive at the common intention of the parties and it must always be
borne in mind that the principle of effectiveness only applies as an aid
towards ascertainment of common intention. It cannot supplement absence of
agreement or override the clear natural meaning of a text or other cogent
indications of common intent. At page 383 of the Law of Treaties 1961, Lord
McNair remarks:
"The rule of effectiveness must mean something more than the duty of a
tribunal to give effect to a treaty; that is the obvious and constant duty
of a tribunal, that is what it is there to do. The rule must surely mean, in
the mind of the party involving it: 'If you (the tribunal) do not construe
the treaty in the way that 1 submit to you to be correct, this treaty will
fail in its object'. But that is a petitio principi, because, as has been
submitted in the previous chapter, it is the duty of a tribunal to ascertain
and give effect to the intention of the parties as expressed in the words
used by them in the light of the surrounding circumstances.
Many treaties fail�and rightly fail�in their object by reason of the words
used, and tribunals are properly reluctant to step in and modify or
supplement the language of the treaty."
It is clear from what has been stated above that this Court cannot adopt a
construction by implication which is not necessary (Reparation for injuries
su8ered in the service of the United Nations, Advisory Opinion: I.C.J.
Reports 1949, p. 174; at pp. 182,184,198), or which would go beyond the
scope of the declared purpose and object of the contract or would involve
radical changes or additions (Case concerning rights of nationals of the
United States of America in Morocco, Judgment of August 27th, 1952: I.C.J.
.Reports 1952, at page 196, 199), or which would do violence to the clear
and unambiguous express provisions of the instrument (Competence of Assembly
regarding admission to the United Nations, Advisory Opinion: I.C.J. Reports
1950, p. 4; at p. 8).
It must be clear that had the suggested term been raised at the time the
parties would have agreed thereto. Hogg, op. cit.,pp. 59-60, remarks:
"A vague showing of general intent will not be sufficient to cover a case
where the parties fail to provide for a particular contingency against which
they could have made provision had they adverted to the problem."
It is clear that this Court has no power to insert a term in a treaty which
it considers a party should have inserted.
If it is clear beyond peradventure that the parties to an instrument must
have intended an unexpressed term to operate, one should have no difficulty
in drafting such a term with clarity and precision. If, however, after a
careful study of the instrument, the surrounding circumstances and other
admissible evidence, difficulty and doubt is experienced in the phrasing of
a suggested [p 591] implied term, it is clearly not reasonable to impute to
the parties the intention to contract on the basis of such a term; vide Rapp
Maiester v. Raonovsky I943, WLD 68, at pages 74-75. Where, in addition, the
admissible facts reveal that one of the parties would probably not have
agreed to such a term had it been raised, there is obviously no
justification for such an inference. Similarly, where the subsequent conduct
of the parties reveals that no such tacit intention existed, there is no
room for any inference that the parties intended to agree on the basis of
such a term.
The rules of construction authorize what has been termed the "teleological
approach" only to the limited extent indicated above. This approach, in its
more extreme form, assumes that this Court has the power to disregard or
amend the terms of an instrument in order to achieve an object, or presumed
object, albeit in a manner different from that provided for and intended by
the parties ; but this approach disregards the basic rule that the purpose
of construction is to determine the common intention of the parties and, in
any event, it has not been recognized by this Court or its predecessor. No
court has the power to make a party's obligations different from, or more
onerous than, what it has agreed to. If this Court has the power to
disregard or to amend the provisions of a treaty or convention, it has
legislative powers and such powers have not been entrusted to it by its
Statute or any of the sources of international law referred to in Article 38
of its Statute. As Sir Gerald Fitzmaurice rightly remarks in the article in
the British Year Book of International Law 1957, XXXIII, quoted above at
page 208:
"The Court has shown plainly that, in its view, the performance of such a
function cannot properly form part of the interpretative process."
In the Peace Treaties case, I.C.J. Reports I950, page 221, at page 229, this
Court remarked:
"It is the duty of the Court to interpret the treaties, not to revise them."
Rosenne, The International Court of Justice, p. 63, remarks, inter alia, in
regard to this Court:
"Thus, being a Court of law it has the duty in relation to international
treaties to interpret them and not to revise them, and it would exceed its
judicial functions were it to revise them on the pretext of remedying a
default, for the occurrence of which the treaty in question has made no
provision, or where its conclusions involve radical changes and additions to
the provisions of the convention. The Court will so act even if the
consequences may not appear to be entirely satisfactory."
Before dealing with the provisions of the Covenant and the Mandate
Declaration, I shall briefly set out the relevant history preceding the
Covenant and the Mandate Declaration.[p 592] German South West Africa was
surrendered to the Respondent's Military Forces in July 1915 and Respondent
remained in military occupation for the remainder of the War and thereafter,
pending the Peace Settlement. Similarly, the former German colony in New
Guinea was occupied by Australia, Samoa by New Zealand, the German islands
in the Pacific Ocean, north of the Equator, by Japan and the various German
territories elsewhere in Africa by Great Britain, Belgium and France.
Agreements were concluded during the War between some of the Principal
Allies and in terms thereof their respective claims to the various occupied
German territories were to be recognized in the event of an Allied victory.
In March 1917 the British Imperial War Cabinet decided that the Respondent
should be allowed to annex German South West Africa, that Australia and New
Zealand should be allowed to annex German New Guinea and German Samoa
respectively. President Wilson of the United States was strongly opposed to
annexation of former enemy territories, and at the Peace Conference he
insisted at the outset that the Covenant of the League of Nations should
provide for complete authority and control of these former German
territories by the League, who could at its discretion delegate its powers,
organize its agency to act "as its agent or Mandatory".
General Smuts in a booklet, The League of Nations, a Practical Suggestion,
published in 1918, proposed a mandate system for territories formerly
belonging to Russia, Austria, Hungary and Turkey, but he felt that such a
system could not be applied to the "German colonies in the Pacific and
Africa".
The future of the German colonies was discussed during January 1919 in the
so-called Council of Ten, which consisted of the Heads of Government and
Foreign Ministers of the United States of America, the United Kingdom,
France, Italy and Japan. Representatives of New Zealand, Australia and South
,Africa attended and pressed their cases for incorporation of the respective
territories allocated to them in terms of the aforesaid decision of the
British Imperial War Cabinet. They were supported by the British Prime
Minister and the representative of France, who also advocated annexation of
the occupied territories. A deadlock resulted, but eventually a compromise
was effected, from which Article 22 of the Covenant of the League of Nations
ultimately emerged. The fact that this Article is the product of compromise
explains its somewhat non-legal terminology. That it was the result of
compromise clearly appears from the following extract from Foreign Relations
of the United States, Paris Peace Conference 1919, Volume 3, page 785: [p
593]
"Mr. Lloyd George said that he had circulated a document ... to each of the
representatives of the Great Powers. That document did not represent the
real views of the colonies but it had been accepted by them in an attempt at
a compromise."
The provisions of this document became, with certain amendments, Article 22
of the Covenant. The only important addition is paragraph g of Article 22,
which provides for a Permanent. Mandates Commission.
Article 22 reads as follows:
"(1) To those colonies and .territories which as a consequence of the late
war have ceased to be under the sovereignty of the States which formerly
governed them and which are inhabited by peoples not yet able to stand by
themselves under the strenuous conditions of the modem world, there should
be applied the principle that the well-being and development of such peoples
form a sacred trust of civilization and that securities for the performance
of this trust should be embodied in this Covenant.
(2) The best method of giving practical effect to this principle is that the
tutelage of such peoples should be entrusted to advanced nations who by
reason of their resources, their experience or their geographical position
can best undertake this responsibility, and who are willing to accept it,
and that this tutelage should be exercised by them as Mandatories on behalf
of the League.
(3) The character of the mandate must differ according to the stage of the
development of the people, the geographical situation of the territory, its
economic conditions and other similar circumstances.
(4) Certain communities formerly belonging to the Turkish Empire have
reached a stage of development where their existence as independent nations
can be provisionally recognised subject to the rendering of administrative
advice and assistance by a Mandatory until such time as they are able to
stand alone. The wishes of these communities must be a principal
consideration in the selection of the Mandatory.
(5) Other peoples, especially those of Central Africa, are at such a stage
that the Mandatory must be responsible for the administration of the
territory under conditions which will guarantee freedom of conscience and
religion, subject only to the maintenance of public order and morals, the
prohibition of abuses such as the slave trade, the arms traffic and the
liquor traffic, and the prevention of the establishment of fortifications or
military and naval bases and of military training of the natives for other
than police purposes and the defence of territory, and will also secure
equal opportunities for the trade and commerce of other Members of the
League.
(6) There are territories, such as South-West Africa and certain of the
South Pacific Islands, which, owing to the sparseness of their population,
or their small size, or their remoteness from the centres of civilisation,
or their geographical contiguity to the territory of the Mandatory, and
other circumstances, can be best administered under [p 594] the laws of the
Mandatory as integral portions of its territory, subject to the safeguards
abovementioned in the interests of the indigenous population.
(7) In every case of mandate, the Mandatory shall render to the Council an
annual report in reference to the territory committed to its charge.
(8) The degree of authority, control, or administration to be exercised by
the Mandatory shall, if not previously agreed upon by the Members of the
League, be explicitly defined in each case by the Council.
(9) A permanent Commission shall be constituted to receive and examine the
annual reports of the Mandatories and to advise the Council on all matters
relating to the observance of the mandates."
In terms of Article 119 of the Treaty of Versailles, Germany renounced in
favour of 'the Principal Allied and Associated Powers ail her rights and
titles over her overseas possessions. These possessions included, inter
alia, German South U7est Africa, German colony New Guinea and German Samoa.
After Article 22 of the Covenant of the League of Nations had been agreed
upon at the Peace Conference, at least two separate events, in addition to
the ratification of the Treaty, had to take place before the Mandate
institution for South West Africa could come into operation, namely: (1) the
Principal Allied and Associated Powers had to entrust, in terms of paragraph
2 of Article 22, the. tutelage of the peoples of South West Africa to a
qualified State; and (2) either the Members of the League had to agree upon
the degree of authority, control or administration to be exercised by the
Mandatory, or such degree of authority, control or administration had to be
explicitly defined by the Council in terms of Article 22 (8) of the Covenant
of the League. The Covenant of the League was ratified and came into force
on 10 January 1920. The Principal Allied and Associated Powers had already
decided before this date that Respondent would hold the Mandate for South
West Africa. Respondent was at all material times willing to accept such
Mandate, held the other necessary qualifications stated in paragraphs 2 and
G of Article 22, and was therefore a qualified State. Members of the League
did not act under the provisions of Article 22, and the Council accordingly
defined the degree of authority, control or administration to be exercised
by the Respondent on 17 December 1920 in the declaration that is commonly
called the Mandate, and it reads as follows:
"Mandate for German South West Africa
The Council of the League of Nations:
Whereas by Article 119 of the Treaty of Peace with Germany signed at
Versailles on June 28th, 1919, Germany renounced in [p 595] favour of the
Principal Allied and Associated Powers al1 her rights over her overseas
possessions, including therein German South-West Africa; and
Whereas the Principal Allied and Associated Powers agreed that, in
accordance with Article 22, Part 1 (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, and have proposed that the Mandate
should be formulated in the following terms; and
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; and
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 Member of the
League, shall be explicitly defined by the Council of the League of Nations;
Confirming the said Mandate, defines its terms as follows:
Article I
The territory over which a Mandate is conferred upon His Britannic Majesty
for and on behalf of the Government of the Union of South Africa
(hereinafter called the Mandatory) comprises the territory which formerly
constituted the German Protectorate of South-West Africa.
Article 2
The Mandatory shall have full power of administration and legislation over
the territory subject to the present Mandate as an integral portion of the
Union of South Africa, and may apply the laws of the Union of South Africa,
and may apply the laws of the Union of South to the territory, subject to
such local modifications as circumstances may require.
The Mandatory shall promote to the utmost the material and moral well-being
and the social progress of the inhabitants of the territory subject to the
present Mandate.
Article 3
The Mandatory shall see that the slave trade is prohibited, and that no
forced labour is permitted, except for essential public works and services,
and then only for adequate remuneration.
The Mandatory shall also see that the traffic in arms and ammunition is
controlled in accordance with principles analogous to those laid down in the
Convention relating to the control of the arms traffic, signed on September
10th, 1919, or in any convention amending the same.[p 596]
The supply of intoxicating spirits and beverages to the natives shall be
prohibited.
Article 4
The military training of the natives, otherwise than for purposes of
internal police and the local defence of the territory, shall be prohibited.
Furthermore, no military or naval bases shall be established or
fortifications erected in the territory.
Article 5
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.
Article 6
The Mandatory shall make to the Council of the League of Nations an annual
report to the satisfaction of the Council, containing full information with
regard to the territory, and indicating the measures taken to carry out the
obligations assumed under Articles 2, 3, 4 and 5.
Article 7
The consent of the Council of the League of Nations is required for any
modification of the terms of the present Mandate.
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.
The present Declaration shall be deposited in the archives of the League of
Nations. Certified true copies shall be forwarded by the Secretary-General
of the League of Nations to all Powers Signatories of the Treaty of Peace
with Germany."
During 1919 a Commission of the Supreme Council of the Principal Allied and
Associated Powers prepared a draft agreement between the Respondent and the
Principal Allied and Associated Powers in terms whereof the Mandate to
administer South West Africa was to be conferred upon Respondent.
Differences arose between the Principal Allied and Associated Powers in
regard to the interpretation of those provisions of Article 22 which dealt
with equal opportunities of the trade and commerce of Members of the League,
and the matter was not proceeded with. The terms set out in this draft were
the same as those set out in paragraphs 2-6 of the Declaration of the
Council of the League of 17 December 1930, but the provisions relating to
compulsory jurisdiction read as follows: [p 597]
"The consent of the Council of the League of Nations is required for the
modification of any 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."
On 5 August 1920 the Council of the League asked the Principal Allied and
Associated Powers to name the Powers to whom they had decided to allocate
the Mandates, and to communicate to the Council the terms and conditions of
the Mandates which they proposed should be adopted by the Council in terms
of Article 22. In December 1920 draft Mandates, including one for South West
Africa, were submitted to the Council of the League by the Government of the
United Kingdom. Thereupon the Council referred these drafts to the
Secretariat for consideration and "to consult other legal experts on any
points they consider necessary". The wording of the terms in this draft was
substantially the same as the draft prepared by the Commission of the
Supreme Council of the Principal Allied and Associated Powers in 1919..
Thereupon the Council made its declaration of 17 December 1920.
It will be observed that the compromissory clause was amended to read "The
Mandatory agrees", etc., instead of "if any dispute ... should arise between
Members of the League of Nations". The reason for this change, according to
Viscount Ishii, was that the Council had been advised that Members of the
League, other than the Mandatory, could not be forced against their will to
submit their differences to the Permanent Court of International Justice.
Members of the League were clearly not considered to be Parties to any
"agreement" embodied in the terms of the Mandate Declaration.
The amendment made by the Council of the League to the draft Mandate
Declaration submitted to it is of considerable significance. It reveals that
the Council thought that it was responsible for the terms of the Mandate
Declaration and that it could amend the terms of the draft submitted to it.
The amendment to Article 7 is certainly not of a minor nature. The draft
submitted to the Council provided for compulsory jurisdiction relative to
disputes between Members of the League. If this provision was retained and
agreed to by Members of the League, the Respondent could have brought
proceedings against Members of the League, and would not have been obliged
to wait for a clarification of legal issues until proceedings, were
instituted against it. Furthermore, if the draft remained unamended, Members
of the League could have brought contentious proceedings against one another
relative to the interpretation or application of the provisions of the
Mandate. In its original form the compromissory clause in Article 7
approx-[p 598]imated a declaration by each Member of the League under the
provisions of Article 36 of the Statute of the Permanent Court of
International Justice, and complied with the condition of reciprocity
provided for therein. In its amended form Article 7 imposes a unilateral
obligation on the Mandatory without any reciprocity.
The first issue, namely, whether the Mandate Declaration is a treaty or
convention in force, has been fully dealt with in the Judgment of Judge Sir
Percy Spender and Judge Sir Gerald Fitzmaurice, and it is sufficient to Say
that I fully endorse their views that it is not a treaty or convention in
force.
The next issue is whether the legal effect of Article 7 of the Mandate
Declaration or anj7 amendment thereof is that the Respondent has agreed to
an action being instituted against it relative to the interpretation or the
application of the provisions of the Mandate by the Applicants. Here again,
I am in full agreement with the views of Judge Sir Percy Spender and Judge
Sir Gerald Fitzmaurice, but inasmuch as I desire to emphasize certain
aspects of this issue, I shall deal therewith fully.
The Applicants contend that they are ex-Members of the League and Members of
the United Nations, and that in terms of the compromissory clause in Article
7 of the Mandate Declaration, Article 37 of the Statute of this Court, and
Article 80 (1) of the Charter of the United Nations, the Respondent has
agreed to such actions being instituted against it by either ex-Members of
the League or Members of the United Nations.
I shall first deal with the Mandate Declaration and thereafter with the
aforesaid provisions of the Statute of this Court and the Charter of the
United Nations.
It will be observed that the Mandatory's substantive obligations are
contained in Articles 2-5 of the Mandate Declaration, and the procedural
obligations in Articles 6 and 7. Articles 2-5 relate to the administration
of the territory. It will also be observed that Articles 6 and 7, as well as
that part of Article 5 which provided for the admission of missionaries who
are nationals of Members of the League, depended for their fulfillment on
the existence of the League of Nations. For the purposes of issues now being
considered, the aforesaid provision of Article 5 is not of any importance
and will not be dealt with. Article 6 depended for its fulfillment on the
existence of the League, as without a League there could not be a Council of
the League to report to, and the compromissory clause in Article 7 depended
for its fulfillment on the existence of the League, as without a League in
existence there could not be a Member of the League.[p 599]
The ordinary natural meaning of the expression "Member of the League" in
Article 7 is a State which is a Member of the League. The Article does not
refer to members of international organizations generally. It refers to
membership of a particular organization: the League of Nations. There is no
reference to non-members, ex-members of the League, or Members of the United
Nations. The expression "Member of the League" appears in all but four of
the articles of the Covenant. It is used in all the Mandate instruments, not
only in the compulsory jurisdiction clauses but also in other clauses where
special benefits are reserved for Members of the League. In all these
instances it could have been used only as describing Members of the League
at the time when the intended privilege was sought to be enjoyed. All these
provisions depended for their fulfilment upon the existence of the League.
It is contended that "Member of the League of Nations" in Article 7 does not
mean "Member of the League of Nations", but means a State which is or has
been a Member of the League of Nations. It is argued that this extraordinary
meaning is justified as the natural and ordinary meaning of these words is
incompatible with the spirit, purpose and context of the clause in which
they appear. Three reasons are advanced for this proposition.
The first is that the judicial protection of the sacred trust of
civilization was an essential feature of the Mandates System. The answer is
that the Mandate Declaration for South West Africa did not provide for
judicial protection or judicial control; but even if it did it cannot be
said that this provision was an essential feature of the Mandate. In any
event, this reason affords no justification in law or logic for giving the
words "Member of the League" a meaning they are not capable of bearing.
Article 22 (1) of the Covenant required the application of the principle
that securities for the performance of the sacred trust referred to therein
should be embodied in the Covenant. Securities for the protection of the
sacred trust were in accordance with this principle embodied in Article 22,
but judicial protection or judicial control was not one of these securities.
No organ of the League was authorized to add to these securities, which
means that securities could only have been added by an amendment of Article
22 in terms of the provisions of Article 26 of the Covenant, and no such
amendment has ever been made.
The resolution of the Council which constitutes the Mandate Declaration has
not been embodied in the Covenant. There is no legal principle that the
executive acts of an executive organ is embodied in the enabling authority.
Thus, a ministerial regulation under a statute is not embodied in the
statute. nor are the decisions [p 600] of a board of directors embodied in
the Articles of Association of a Company. If the Mandate Declaration was
embodied in the Covenant of the League the provisions relating to the
amendment of the Covenant (Article 26 of the Covenant) would have applied
thereto; but they do not apply inasmuch as Article 7 of the Mandate
Declaration provided specifically that the Mandate could be amended with the
consent of the Council.
In any event, the power of the Council was confined to defining the degree
of authority, control or administration to be exercised by the Mandatory and
did not include any power to add to the securities relating to the
supervision over the Mandatory embodied in Article 22. The supervision over
the Mandatory was entrusted to the Council of the League and the Mandates
Commission and there could not have been any intention to authorize
concurrent supervision by the appointment of every Member and ex-Member of
the League as individual guardians of the sacred trust or to confer on each
of these States the right to institute proceedings against any Mandatory
whenever it was considered that a breach or abuse of the Mandate had taken
place.
It follows that the compromissory clause in Article 7 of the Mandate
Declaration was not intended to impose any obligation other than that the
Mandatory was obliged to consent to the submission of disputes relating to
the interpretation or application of the Mandate between it and another
Member of the League, if such disputes could not be settled by negotiation,
to the Permanent Court of International Justice. "Disputes" had no meaning
other than its ordinary meaning in compromissory clauses, i.e.,
disagreements relating to the legal rights of the parties. There clearly
could not have been any intention to confer general supervisory rights on
every Member or ex-Member of the League.
It has been contended that inasmuch as it was realized that by abusing the
unanimity rule which applied to the Council a Mandatory could frustrate the
supervision of the Council, and that for this reason it was considered
necessary to arm every Member of the League (and every ex-Member of the
League) with supervisory powers including the right to institute contentious
proceedings against the Mandatory whenever such State thought that the
Mandate had been abused or breached.
It was with reluctance that Mandatories such as the Respondent, New Zealand
and Australia agreed to the supervision of the League. They obviously only
agreed to the supervision by the Mandate Commission and the Council of the
League on account of the protection afforded them by the procedural
provisions of the Covenant, and the fact that the Council was a small and
select body of States. It is not reasonable to assume that they would have
agreed to additional supervision by every Member and every ex-Member of the
League armed with the right to institute legal proceedings [p 601] against
them whenever it was considered that the Mandate had been breached or
abused.
If Article 7 was intended to have this far-reaching effect somebody would
have made some reference thereto and it would have been recorded somewhere.
It would have been the subject of violent debates. Not one word of evidence
to support this theory is to be found in the travaux pr�paratoires or in any
contemporary writings or in the subsequent conduct or statements of the
parties. The possibility of the failure of the machinery devised in the
Covenant was not contemplated at the time. Moreover, the fact that for more
than forty years not a single State ever sought to act as an individual
supervisory authority in itself effectively refutes the aforesaid
contention.
In any event, however important it may have been, the com-promissory clause
in Article 7 of the Mandate Declaration can in no way be said to have been
an indispensable feature of the Mandate. Had it been omitted from the
Mandate Declaration a valid Mandate would nonetheless have been constituted
in accordance with the provisions of Article 22. The Permanent Court of
International Justice would not, and could not, have held that Article 22 of
the Covenant contained an implied provision that a compromissory clause was
essential. It is significant that the Charter of the United Nations does not
provide for the compulsory jurisdiction of any Court in regard to the sacred
trust created in Article 73, nor is such a provision contained in Chapters
XII and XIII, which deal with the international trusteeship system. There
are in fact trusteeship agreements which do not contain any provision for
the compulsory jurisdiction of the Court. If the Permanent Court of
International Justice came to an end for some reason or other one could not
have argued that for that reason the Mandate had come to an end.
The second reason advanced for not giving the words "Member of the League"
their ordinary and natural meaning is that "the right to implead the
Mandatory Power before the Permanent Court was conferred on the Members of
the League because it was regarded as the most reliable and enduring
procedure of ensuring the protection of the Court, whatever might happen to
or arise from the machinery of administrative supervision". It is difficult
to understand this reason but it apparently means that it was considered
that the right to bring contentious proceedings should survive the League or
the organs of the League. Here again we have a bare assertion unsupported by
facts or reasons.
The truth is that the possibility of the dissolution of the League was not
contemplated when the Covenant was agreed to or when the Mandate Declaration
was made and this consideration could therefore not have constituted a
reason for conferring rights on States irrespective of whether they remained
Members of the [p 602] League or not rather than for as long as they
remained Members of the League. If it is true that the authors of the
Mandate Declaration actually intended that the words "Members of the League"
should not have their ordinary and natural meaning it is difficult to see
why more appropriate terminology was not employed; in other words if it was
intended that "Member of the League" should not mean Member of the League
why were the words "Member of the League" preferred?
The third reason advanced is that a tacit agreement was reached among all
the Members of the League at its dissolution to the effect that "Member of
the League" should be construed as meaning ex-Member of the League. An
agreement in 1946 could amend the provisions of Article 7, which came into
existence in 1920, but it clearly cannot have any bearing on the meaning of
the Article prior to the amendment. I shall deal fully with this contention
when considering the legal effect of the statements and resolutions at the
dissolution of the League. It is sufficient for the moment to observe that
if the first two reasons are sound there would have been no need for this
further agreement.
This is no , a case where the Court has to decide between two possible
meanings as the words "Member of the League" in Article 7 are clear and
unambiguous and capable of only one meaning.
It is accordingly clear that the compromissory clause in Article 7 depended
for its fulfillment on the existence of the League, and is no longer capable
of fulfillment since the dissolution of the League unless (a) there exists a
substantive rule of international law which provides for automatic
substitution of ex-Members of the League or Members of the United Nations
for Members of the League, or (b) the Respondent is a party to an agreement,
express or implied, in terms whereof ex-Members of the League or Members of
the United Nations were substituted for Members of the League in the
aforesaid provision.
The Applicants contend that organs of the United Nations have been
substituted for the Council of the League and the Mandate Commission, and
that Members of the United Nations have been substituted for Members of the
League in Article 7 of the Mandate. This submission is apparently mainly
based on what the Applicants term "the principle of succession". On this
principle they base a suggestion that even if Article 37 of the Statute of
this Court had not been enacted, this Court could be held to have been
substituted for the Permanent Court of International Justice in Article 7.
The Applicants further submit in the alternative that "Member of the League
of Nations" in Article 7 should now be read as "Member of the League of
Nations at the time of its dissolution", and for this submission they rely
on what they term the concept of the [p 603] limited "de facto survival of
an entity which has been formally dissolved".
There is no substantive rule of international law which provides that where
an international organization comes to an end, and another international
organization performing similar functions exists at that time, that the
powers and functions of the dissolved organization pas automatically to the
organs of the new organization, or that the rights of the Members of the
former pass to the Members of the latter, irrespective of the intention of
the parties to the relevant instruments relating to these organizations. In
Ambatielos's case (I.C.J. 1952, p. 54), Judge Levi Carneiro remarked:
"Even when the organ which was formerly competent has been abolished, its
powers cannot be regarded as automatically transferred to the new organ
which replaces it."
No such rule of automatic transfer is to be found in any of the sources of
international law enumerated in Article 38 of the Statute of this Court.
There are no international conventions, general or particular, establishing
such a rule, there is no general international custom to this effect, nor is
such a rule to be found in the general principles of law recognized by
civilized nations.
Apart from the fact that no source of international law recognizes such a
principle, common-sense and logic require that such a rule should not exist.
If it did exist it would mean that even an express provision in a treaty or
convention could not avoid its effect. It follows that there can at most be
a rule to the effect that, in the absence of any indication of a contrary
intention by the parties to the instruments concerned, it shall be presumed
that an automatic transfer was intended. But even such a general rule is not
to be found in any of the sources of international law.
It may however be that the nature of a particular function of an organ of an
organization which is dissolved is such that the rules of construction
require the Court to imply, in the light of the evidence afforded by the
particular circumstances, that a transfer must have been intended to take
place. Such a conclusion would be the result of the application of rules of
construction determining the intention of the parties, not the effect of a
substantive rule of law.
The Applicants rely inter alia on two statements of the late Judge
Lauterpacht, but a careful analysis of these statements in their context
reveals that the Judge was here concerned with the application of rules of
construction and that he did not intend to state a rule of substantive law.
The first statement relied upon is a quotation from Oppenheim, L.,
International Law�A Treatise,[p 604] Volume 1, Eighth Edition, ed. by H.
Lauterpacht, Longmans, Green and Co., London, 1955, p. 168, and it reads as
follows:
"While as a rule the devolution of rights and competences is governed either
by the constituent instruments of the organizations in question or by
special agreements or decisions of their organs, the requirement of
continuity of international life demands that succession should be assumed
to operate in all cases where that is consistent with or indicated by the
reasonably assumed intention of the parties as interpreted in the light of
the purpose of the organizations in question." (Italics added.)
It is clear that the author was here dealing with an implied term
�"reasonably assumed intention of the parties��while also stressing the ut
res magis valeat quam fperat rule, including the rule that one should have
due regard to the object of the parties. The other passage referred to is
from Lauterpacht, H., The Development of International Law by the
International Court, Stevens and Sons, London, 1958, at page 280:
"Such importation ... of the rules of succession in relation to
international organizations is no more than an example of legitimate
application of the principle of effectiveness to basic international
instruments."
Here again the Judge was stressing the rule of ut res magis valeat quam
pereat and did not intend to state a principle not based on the common
intention of the parties to the instruments concerned. In fact, the
statement from Oppenheim referred to above is quoted by Lauterpacht at pages
279-280 in The Development of International Law by the International Court,
and immediately thereafter follows the second statement relied upon by the
Applicants.
At page 281 of the same work, Lauterpacht states:
"The absence of agreement could not properly be supplemented by an inference
aiming at securing for the instrument in question a higher degree of
effectiveness than was warranted by the intentions of the parties." (Italics
added.)
And at page 290:
�Effectiveness being�in general�a principle of good faith is a matter of
circumstance and degree... But good faith requires no more than that effect
be given in a fair and reasonable manner to the intention of the parties.
This means that on occasions, if such was the intention of the parties, good
faith may require that effectiveness of the instrument should fall short of
its apparent and desirable scope. The principle of effectiveness cannot
transform a. mere declaration of lofty purpose�such as a universal
declaration of human rights�into a source of legal rights and
obligations."[p 605]
In support of their alternative contentions the Applicants point to the
Statutes of certain States of the United States of America which by express
provision enable a dissolved corporation to remain de facto in existence
until it winds up its corporate affairs, and statutes which by express
provision enable persons who were corporate directors at the time of
dissolution of a corporation to sue as trustees on any claim of the
corporation; and they say that civil law countries have similar legislation
which keeps alive and carries over the legal existence of rights and duties
of dissolved entities. I find it impossible to see on what legal principle a
rule of international law can be evolved from the above to the effect that
rights held by members of an international organization in their capacities
as members of that organization�the right to invoke Article 7 of the Mandate
was limited to Members of the League�remain in force after the dissolution
and liquidation of such an organization. In each of these cases cited by the
Applicants the carry-over operates solely for the purpose of winding up the
affairs of the corporation. The acts authorized are performed on behalf of a
corporation which is being liquidated in pursuance of the rights of that
corporation, not in pursuance of the rights of its former members. It should
further be noted that this limited carryover operates solely by virtue of
express legislative provisions. Even if one could apply these provisions
mutatis mutandis in international law one could not possibly arrive at a
principle. such as is contended for by the Applicants. The object served by
the aforesaid municipal statutory provisions is to bring about a liquidation
of the rights and obligations of corporations�not to perpetuate the rights
of its individual members which they held as members.
I now proceed to consider whether the Covenant of the League or the Mandate
Declaration contain any provision, express or implied, to the effect that
upon the dissolution of the League "Member of the League" in Article 7 of
the Mandate Declaration should be construed as meaning "ex-Member of the
League" or "Member of the United Nations".
It is common cause that neither Article 22 of the Covenant of the League nor
Article 7 of the Mandate Declaration or any other provision of these
instruments contains any express provision to the effect that upon the
dissolution of the League "Member of the League" .should be construed as
meaning Member of the United Nations or ex-Member of the League, and the
question accordingly is whether any implied provision to this effect is to
be found either in the Covenant or in the Mandate Declaration.
I have already shown that the compulsory jurisdiction of the Court is not
one of the securities embodied in the Covenant, and [p 606] that the
compromissory clause in Article 7 was not an indispensable feature of the
Mandate. In any event it is clear that had the issue been raised when the
resolution which constitutes the Mandate Declaration was adopted as to what
would happen to the compromissory clause on the dissolution of the League,
the reply would probably have been that provision had been made for amending
the Covenant of the League and the Mandate Declaration and that such an
issue should be left to be dealt with by the League or the Council, in the
light of circumstances prevailing at the time of the dissolution of the
League. There is no justification for the suggestion that the parties would
have replied that in such an event "Member of the League" should be
construed as either meaning "ex-Member of the League", or "Member of another
international organization performing similar functions to that of the
League". To imply such a provision would amount to assuming a common
intention which in fact did not exist, would constitute a total disregard
for the plain and unambiguous meaning of words, and would amount to a
deliberate revision, not to an interpretation, of the Mandate Declaration.
I have so far dealt with Article 7 of the Mandate Declaration. Article 6 of
this Declaration has no direct bearing on jurisdiction. There is a vast
difference between Articles 6 and 7. Article 6 is really not a term of the
Council of the League's definition of the degree of authority, control or
administration to be exercised by the Mandatory; it, in effect, merely
repeats paragraph 7 of Article 22 of the Covenant and what is implied
therein. The fact that these two Articles are numbered 6 and 7 in the
Mandate Declaration may create the superficial impression that they must be
regarded as of equal standing, but this is not justified. The provisions of
the one are to be found in the Covenant of the League itself and constitute
one of the securities specifically embodied in the Covenant for the
performance of the sacred trust of civilization referred to therein, whereas
Article 7 does not appear in the Covenant and is not one of the securities
for the performance of the sacred trust.
From the above it follows that if there was any implied or tacit agreement
relative to the continued application of any provision contained in the
Mandate Declaration which depended on the continued existence of the League
for its fulfilment, such agreement would much sooner relate to the
provisions of Article 6 (that is paragraph 7 of Article 22) than to Article
7 of the Mandate Declaration.
One is accordingly entitled to assume that, if it should be found that there
was no implied agreement that Article 6 of the Mandate Declaration (i.e.
paragraph 7 of Article 22) would continue to apply after the demise of the
League in the sense that the organs of another international body performing
similar functions would be [p 607] substituted for the organs of the League,
it is very improbable that it would have been impliedly agreed that on the
dissolution of the League Article 7 would continue to apply in the sense
that ex-Members of the League, or Members of another international
organization performing functions similar to those of the League, would be
substituted for Members of the League. There is considerable evidence
available relative to the intention of the parties in regard to Article 6
and an investigation whether there exists an implied agreement that Article
6 should now be read as if the organs of the United Nations had been
substituted for the organs of the League of Nations, seems desirable.
The obligation to report annually was limited by paragraph 7 of Article 22
of the Covenant and by Article 6 of the Mandate to an obligation to report
annually to the Council of the League of Nations. As a matter of language,
the words of these provisions are not capable of including an obligation to
accept international supervision generally or to report to some
international body other than the Council of the League. There are no rules
of interpretation giving them such a meaning.
An implied term that on the dissolution of the League the functions of the
Mandates Commission and the Council of the League would automatically be
transferred to organs of another similar international organization cannot
be said to be necessary. Supervision by the Council of the League was
important, but not essential for the existence of the Mandate, but even if
it was it does not follow that for that reason the parties must have
intended that an organ of a future international organization would take
over on the demise of the League. Respondent would certainly first have
required information about the constitution of such an as yet unknown
organization before assenting to any automatic substitution. It cannot be
said that it is clear that if the parties, when negotiating, had adverted to
the possible dissolution of the League, they would have agreed to provide
for the continued supervision of the mandated territory in that particular
way. Article 22 expressly provides that securities for the performance of
the trust were to be embodied in the Covenant and one of the securities
embodied therein was that the Mandatory was to render to the Council of the
League an annual report in reference to the territory committed to its
charge. Another security is that a particular commission was to be
constituted to receive and examine the annual reports of the Mandatories and
to advise the Council of the League on all matters relating to the
observance of the Mandates. To add a further, or different security not
stated in the Covenant would be to do violence to the clear and unambiguous
meaning of the phrase "and that securities for the performance of this trust
should be embodied in this Covenant"; and to add a term to the effect that
on the demise of the League the functions of the Council of the League and
the Mandates Commission would be performed by an organ of another [p 608]
international organization would be tantamount to adding a security not
embodied in the Covenant. The object of the parties was that the principle
that the well-being and development of the peoples of South West Africa
should form a sacred trust of civilization, should be applied, but their
object was also that this principle should be applied and this purpose
achieved within the framework of Article 22. The object was, in a sense, to
define the status of South West Africa, to create an international regime,
but an integral part of this definition of status, of this regime, was
supervision by the Council of the League and a Mandates Commission
constituted by the League. Supervision by the organs of some unknown and
unforeseen international organization was not included in the definition of
the status of South West Africa, was not included in this international
regime. The aforesaid principle, stated in Article 22, cannot be given a
meaning by inference which has the effect of altering the clear and
unambiguous provisions of the rest of Article 22, e.g. it cannot be held
that although the detailed provisions of Article 22 required an annual
report to be sent to the Council of the League there nonetheless existed an
obligation to submit reports to all civilized nations, whether Members of
the League or not, inasmuch as the well-being of the peoples of the mandated
territories is a sacred trust of civilization and that this well-being could
be better advanced if reports were sent to all civilized States. Similarly,
it cannot be held that this general principle justifies the addition of a
term that on the demise of the League the organs created by some other
treaty or convention would be substituted for the organs referred to in
Article 22.
The relevant historical background confirms that the parties who agreed to
Article 22 of the Covenant did not have any common intention that the
obligation to report to the Council of the League should be interpreted as a
general obligation to accept international supervision, or to report to an
international institution other than the Council of the League.
It will be recalled that Article 22 of the Covenant was the result of
compromise. In fact the Prime Minister of Australia (he was speaking on
behalf of both Australia and New Zealand) made it clear at the conference in
1919 that this compromise represented "the maximum of their concessions". On
this occasion General Botha, the South African Prime Minister, said, inter
alia:
"He appreciated the ideals of President Wilson... They must remember that
their various peoples did not understand everything from the same point...
Personally he felt very strongly about the [p 609] question of German South
West Africa. He thought that it differed entirely from any question they had
to decide in this conference, but he would be prepared to Say that he was a
supporter of the document handed in that morning [by Lloyd George], because
he knew that, if the idea fructified the League of Nations would consist
mostly of the same people who were present there that day, who understood
the position and who would not make it impossible for any mandatory to
govern the country. That was why he said he would accept it [the mandatory
system]."
It is clear that Australia, New Zealand and Respondent were not agreeing to
supervision by a possible future international organization, the composition
of which they could not possibly have known.
When an agreement is the result of a compromise and an issue arises whether
any given term should be implied or not, common sense dictates that one
should have due regard to the attitude of the parties prior to the
concession, or concessions, which made the agreement possible. It should not
be inferred that a party intended to concede more than the words of the
agreement conveyed and more than was necessary to effect the compromise. It
was with great difficulty that certain States were persuaded to accept the
supervision of the organs of the League; on what basis can it be assumed
that they would have agreed to the supervision of the organs of another
undefined organization ? The words of a compromise should never be whittled
down by way of interpretation so as to arrive at a result not contemplated
by the parties. The Court clearly cannot infer a common intention to
contract on the basis of a term not conveyed by the words employed by the
parties where the surrounding circumstances reveal that some of the parties
at least would not have agreed thereto had it been raised.
The conduct of the Members of the League subsequent to the Covenant being
entered into, and subsequent to the Mandate Declaration, clearly reveals
that there did not exist any common intention that the functions and pourers
of the League would automatically be transferred to a similar international
organization on the demise of the League. At no time during the existence of
the League did any Member thereof indicate that it considered that the
Covenant, or the Mandate instrument, was entered into on the basis of such a
provision. If such an implied term in fact existed one would have expected
Members of the League who attended the San Francisco Conference in 1945 to
have said so when the Mandates were discussed. One would have expected the
Members of the Preparatory Commission to have made some reference thereto.
One would have expected the Members of the League to have referred to it at
the dissolution of the League. On this occasion the representative of China
stated that there would be no automatic succession of the League's functions
in respect of the Mandates to the United Nations and his statement was not
chal-[p 610]lenged. In fact, not a single ex-Member of the League took up
the attitude that the United Nations had succeeded to the League's functions
in respect of the Mandates until 1918, when only four States made statements
which could possibly be construed as a denial of Respondent's contention
that the supervisory functions of the League had not been transferred to the
United Nations. Thirty-four States participated in reports on debates
concerning mandated territories not placed under trusteeship, and of these,
29 States expressed views in conformity with the contention that the United
Nations has no supervisory authority in respect of South West Africa. Of
these 29 States a large number were Members of the League at its inception.
If the Covenant of the League, or the Mandate Declaration, was intended to
embrace an implied provision that on the dissolution of the League another
international organization performing similar functions, although
differently constituted, would succeed the League, and that its organs would
succeed the organs of the League, it is incredible that not a word was ever
said about it, particularly during the crucial years 1945, 1946 and 1947.
I have, up to this stage, dealt with the question whether one is justified
in inferring a term that on the dissolution of the League the functions and
powers of the Council of the League and the Mandates Commission would be
transferred to similar organs of a similar organization existing at the time
of the dissolution of the League, without considering whether the organs of
the United Nations can at all be said to be similar to those of the League.
As I shall show infra there are very material differences between the
functions and the constitution of the organs of the United Nations and the
functions and constitution of the organs of the League and the Mandates
Commission. My conclusion is that one cannot find any implied term in the
Covenant or the Mandate Declaration to the effect that the powers and
functions of the Council of the League and the Mandates Commission would be
automatically transferred on the demise of the League to another
organization differing in such material respects from the League. This
conclusion affords, for the reasons I have already stated, an additional
reason for holding that neither the Covenant of the League nor the Mandate
Declaration contained any implied provision to the effect that on the
dissolution of the League ex-Members of the League, or Members of the United
Nations, would be substituted in Article 7 of the Mandate for the Members of
the League. [p 611]
If neither the Covenant nor the Mandate contains any provision to the effect
that former Members of the League of Nations, or Members of the United
Nations, would be substituted for Members of the League of Nations on the
dissolution of the League, it must follow that Article 7 of the Mandate
could no longer apply on the dissolution of the League unless the Respondent
has been a party to some other agreement whereby ex-Members of the League of
Nations, or Members of the United Nations, were substituted for Members of
the League of Nations in Article 7.
For the reasons already stated I shall also inquire whether the provisions
of paragraph 7 of Article 22 of the Covenant, or the provisions of Article 6
of the Mandate Declaration, were in any manner amended by the substitution
of organs of the United Nations for the organs of the League. It should
however be emphasized that even if it were to be found that Article 6 was
thus amended it does not follow that Article 7 was similarly amended. Some
of the arguments advanced in support of the contention that Article 6 still
applies cannot apply to Article 7.
I now proceed to deal with the provisions of the United Nations Charter.
The Charter of the United Nations was drafted, unanimously agreed to and
signed by all the representatives at the San Francisco Conference held
between 24 April and 26 June 1945. It came into force on 24 October 1945.
The League of Nations remained in existence until April 1946 when it was
dissolved by its Members.
In a very loose and general sense it may be said that the United Nations is
a successor of the League of Nations, but from a legal and historical point
of view this is not so. Two of the major Powers in the United Nations, the
United States of America and the U.S.S.R., were not Members of the League at
its dissolution, and both were opposed to any notion that the United Nations
was to be the League under a different name or an automatic successor in law
to the League's assets, obligations, functions or activities. The U.S.S.R.
was expelled from the League in December 1939, and the United States never
was a member thereof. Membership of the League and of the United Nations
were never identical. Of the fifty-one nations which constituted the Founder
Members of the United Nations, seventeen were not at the time Members of the
League, and eleven Members of the League were not original Members of the
United Nations. The many and detailed treaties between the League of Nations
and the T7nited Nations relative to assets and non-political functions taken
over by the United Nations constitute clear evidence of the fact that there
was co automatic succession. [p 612]
What strikes one forcibly is that no provision is made in any of the
provisions of the Charter of the United Nations, either generally or
specifically, for the assumption by or the transfer to the United Nations or
any of its organs of the functions or duties of the organs of the League of
Nations in respect of the mandates, nor is there any provision which,
directly or indirectly, provides for the substitution of Members of the
United Nations or ex-Members of the League for Members of the League in the
Mandate Declarations. It seems that had the parties to the Charter intended
to substitute the United Nations or any of its organs for the Council of the
League in Article 22 or the Mandate Declaration, or that one or other of the
organs of the United Nations should assume the functions of the organs of
the League under the mandates, or that Membership of the United Nations or
ex-Membership of the League should be substituted for Membership of the
League, such intention would have been expressed in positive terms. It is
incredible if in fact general agreement existed in regard to so fundamental
a principle that it would have been omitted from a document drafted with
such care and caution. This is particularly so when one bears in mind that
the mandates are specifically referred to in the Charter.
Chapters XII and XIII of the Charter of the United Nations provide for the
establishment of a Trusteeship System which, in a very broad sense, may be
said to correspond to the Mandate System of the League of Nations, but it is
clear that the supervisory machinery provided for in these Chapters differs
very materially from that which had operated in respect of the mandates.
Under the Mandate System the Mandate Commission was a body of independent
experts, whereas the Trusteeship Council consists of government
representatives of Member States. Under the Mandate System the ultimate
supervisory authority was the Council of the League, which could only arrive
at decisions on a unanimous vote. Under the Trusteeship System the ultimate
supervisory authority is the Security Council in the case of a trusteeship
"in the strategic areas", or otherwise it is the General Assembly of the
United Nations. In the Security Council decisions may be taken by seven
affirmative votes, including those of five permanent Members out of a total
of eleven. In the General Assembly decisions may be arrived at by a bare
majority, or on important questions by a two-thirds majority.
In Voting Procedure on Questions relating to Reports and Petitions
concerning the Territory of South West Africa, page 75, this Court said:
"The voting system is related to the composition and functions of the organ.
It forms one of the characteristics of the constitution of the organ. Taking
decisions by a two-thirds majority vote or by [p 613] a simple majority vote
is one of the distinguishing features of the General Assembly, while the
unanimity rule was one of the distinguishing features of the Council of the
League of Nations. These two systems are characteristic of different organs,
and one system cannot be substituted for the other without constitutional
amendment. To transplant upon the General Assembly the unanimity rule of the
Council of the League would not be simply the introduction of a procedure
but would amount to a disregard of one of the characteristics of the General
Assembly. Consequently the question of conformity of the voting system of
the Genera Assembly with that of the Council of the League of Nations
presents insurmountable difficulties of a juridical nature."
Apart from the sacred trust referred to in Chapter XI, it is clear that the
framers of the Charter of the United Nations contemplated only one form of
trusteeship, namely that provided for in Chapters XII and XIII, and there
was no contemplation of any organs of the United Nations supervising
mandates in terms of the procedural provisions of the mandates concurrently
with the trusteeships. Article 77 (1) of the Charter provides that the
trusteeship system shall apply "to such territories in the following
categories as may be placed thereunder by means of trusteeship agreements:
(a) territories now held under mandate...". From this it is clear that there
could not have been any contemplation that the Trusteeship System would
automatically without any agreement apply to the territories held under
mandate. Only trusteeship agreements could bring these territories under the
Trusteeship System. There could not possibly have been any intention that
the organs of the Trusteeship System would automatically without any
trusteeship agreement be substituted for the organs of the League in respect
of territories held under mandate.
Article 37 of the Statute of this Court merely provides that when in a
treaty or convention in force provision is made for reference of a matter to
inter alia the Permanent Court of International Justice, the matter shall,
as between the parties to the Statute of this Court, be referred to this
Court. This Article does not even specifically refer to mandates. Its legal
effect is simply to substitute the International Court of Justice for the
Permanent Court of International Justice in disputes between Members of the
United Nations where the Permanent Court of International Justice would
otherwise in terms of a treaty or convention in force have been the forum.
It may be correct to Say that Article 37 kept in force the compulsory
jurisdiction provisions of treaties or conventions providing for reference
of disputes to the Permanent Court of International Justice which would
otherwise have lapsed on- the disappearance of the Permanent Court of
International Justice, but it does not purport to keep alive treaties or
conventions or provisions thereof that would have lapsed for any other
reason. [p 614]
Several conditions had to be fulfilled before Article 7 of the Mandate could
be invoked against the Respondent. Two of these were (a) that there had to
be a Permanent Court of International Justice, and (b) that the dispute had
to exist between the Respondent and another Member of the League of Nations.
Both these conditions are incapable of being complied with today, but if
Article 7 of the Mandate is a treaty or convention in force, the effect of
Article 37 of the Statute of this Court is to provide that this Court takes
the place of the Permanent Court of International Justice, and the
disappearance of the Permanent Court of International Justice would
therefore not be a valid reason for holding that Article 7 of the Mandate no
longer applies. The requirement that the dispute must be one between the
Mandatory and another Member of the League of Nations is, however, not
affected by Article 37. It should be borne in mind that Article 37 is a
general provision applicable to all conventions or treaties in force
containing provisions for reference of matters to inter alia the Permanent
Court of International Justice, and any meaning given to Article 37 in
regard to any particular treaty or convention must also apply mutatis
mutandis to all other treaties or conventions in force containing provisions
for reference of matters to the Permanent Court of International Justice.
The words "as between the parties to the present Statute" were clearly not
intended to alter and cannot be read as altering the conditions which had to
be fulfilled in terms of the requirements of the different treaties or
conventions before an action could be brought in the Permanent Court of
International Justice. Thus, for example, if a treaty covering international
fishing rights contained a provision for reference of disputes to the
Permanent Court of International Justice by a party to the treaty, provided
such party held a qualification such as membership of an international
fishing organization, Article 37 did not substitute Membership of the United
Nations for the qualification required under the treaty. Article 37 does not
purport to preserve locus standi. The words "as between the parties to the
present Statute" were obviously inserted because the parties to treaties or
conventions who were not parties to the Statute of this Court would not be
bound to accept the jurisdiction of this Court in the place of the Permanent
Court of International Justice. Article 37 does not have and is not capable
of being construed as having the effect of amending the term of Article 7
of. the Mandate requiring the dispute to be one between the Mandatory and
another Member of the League, and it does not mean, and it is not capable of
meaning, that United Nations Membership or ex-Membership of the League was
substituted for Membership of the League of Nations in Article 7. In this
regard one must bear in mind that when Article 37 came into operation the
League and the Permanent Court of International Justice were still legally
in existence but steps for their dissolution were in contemplation. [p 615]
The fact that express provision was made for substituting the International
Court of Justice for the Permanent Court of International Justice in all
treaties or conventions in force, without any corresponding provision being
made to substitute an organ of the United Nations for the Council of the
League in Article 6 or to amend the provision in Article 7 that the dispute
had to be between the Mandatory and another Member of the League of Nations,
is significant. Had it been the intention of the draftsmen of the Charter to
amend mandates in the respects suggested, they would undoubtedly have
inserted express pro visions to that effect. Article 37 clearly does not
contain any provision, express or implied, to the effect that the words
"Member of the League of Nations" in Article 7 were replaced by the words
"ex-Member of the League of Nations" or "Member of the United Nations"
I now proceed to consider the provisions of Article 80, subsection 1, and in
particular its legal effect in regard to Articles 6 and 7 of the Mandate. It
reads as follows:
"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."
The ordinary grammatical meaning of the words of Article 80 (1) is that
Chapter XII should not be construed as (a) altering in any manner the rights
whatsoever of any States, or (b) altering in any manner the rights of any
peoples, or (c) altering in any manner the terms of existing international
instruments to which Members of the United Nations may be parties, until
trusteeship agreements have been concluded. It will be observed that this
Article merely purports to be an interpretation clause, and it expressly
records that it should not be interpreted as amending any rights under any
existing international instruments or the terms of such instruments. If
Article 80 (1) applies to mandates, it follows that, far from amending any
rights under the mandates or the terms of any mandate, it expressly records
that this is not being done.
It has however been suggested that this Article purports to safeguard the
rights of States and peoples until trusteeship agreements are concluded. The
argument then proceeds that the protection afforded these peoples. by
Articles 6 and 7 of the Mandate Declarations could only be safeguarded if
the obligations created by these provisions remained in force after the
dissolution of the [p 617] League until trusteeship agreements were entered
into, and that inasmuch as the existence of the League was essential for the
fulfillment of these provisions, the substitution of the organs of the
United Nations for the organs of the League and Members of the United
Nations or ex-Members of the League for Members of the League in Articles 6
and 7 respectively must be implied. The words of Article 80 (1) are however
not capable of such a construction. They are clear and unambiguous. The
Article merely purports to safeguard rights in the sense that Chapter XII
must not be construed as changing any rights. Its provisions are entirely
negative. If the aforesaid suggested implied term is read into Article 80
(1) it would in effect mean that the provisions of Articles 6 and 7 of the
Mandate were amended in the respects indicated above; but Article 80 (1)
itself contains the instruction that Chapter XII (Article 80 is part of this
Chapter) is not to be construed as amending the terms of any instrument. It
does not purport to provide for the continuation of rights until trusteeship
agreements are concluded where such rights would otherwise have terminated,
either on account of the provisions of the instrument containing them or for
some other valid reason.
Article 80 (1) is clear and unambiguous, but even if it is not the relevant
facts preceding the Charter of the United Nations as well as the subsequent
conduct of the parties concerned make it impossible to give Article 80 (1)
any meaning other than what has been stated above to be its ordinary
grammatical meaning, or to infer any implied term to the effect that all the
provisions of mandates were to remain in force after the dissolution of the
League and then say that for this purpose the supervisory functions of the
organs of the League were transferred to the organs of the United Nations
and that Members of the United Nations or ex-Members of the League must be
substituted for Members of the League.
If regard is had to the negotiations and discussions relating to Article 80
(1) during the drafting of the Charter, there is no indication that the
natural and ordinary meaning of the words of this Article does not express
the true common intention of the parties. The delegation of the Respondent
circulated on 7 May 1945 among the other delegates and sought to introduce
in Committee III4 a statement which was read in the Committee on 12 May.
This statement and the introductory remarks which preceded its reading are
as follows:
"I wish to point out that there are territories already under Mandate where
the Mandatory principle cannot be achieved.
As an illustration, I would refer to the former German territory of South
West Africa held by South Africa under a 'C' Mandate.[p 617]
The facts with regard to this territory are set out a in memorandum filed
with the Secretariat, which I now read: When the disposal of enemy territory
under the Treaty of Versailles was under consideration, doubt was expressed
as to the suitability of the Mandatory form of administration for the
territory which formerly constituted the German Protectorate of South West
Africa.
Nevertheless, on 17th December 1920, by agreement between the Principal
Allied and Associated Powers and in accordance with Article 22, Part 1
(Covenant of the League of Nations) of the Treaty, a Mandate (commonly
referred to as a C Mandate) was conferred upon the Government of the Union
of South Africa to administer the said territory.
Under the Mandate the Union of South Africa was granted full power of
administration and legislation over the territory as an integral portion of
the Union of South Africa, with authority to apply the laws of the Union to
it.
For twenty-five years, the Union of South Africa has governed and
administered the territory as an integral part of its own territory and has
promoted to the utmost the material and moral well-being and the social
progress of the inhabitants.
It has applied many of its laws to the territory and has faithfully
performed its obligations under the Mandate.
The territory is in a unique position when compared with other territories
under the same form of Mandate.
It is geographically and strategically a part of the Union of South Africa,
and in World War No. I a rebellion in the Union was fomented from it, and an
attack launched against the Union.
It is in large measure economically dependent upon the Union, whose railways
serve it and from which it draws the great bulk of its supplies.
Its dependent native peoples spring from the same ethnological stem as the
great mass of the native peoples of the Union.
Two-thirds of the European population are of Union origin and are Union
Nationals, and the remaining one-third are Enemy Nationals.
The territory has its own Legislative Assembly granted to it by the Union
Parliament, and this Assembly has submitted a request for incorporation of
the territory as part of the Union.
The Union has introduced a progressive policy of Native Administration,
including a system, of local government through Native Councils giving the
Natives a voice in the management of their own affairs; and under Union
Administration Native Reserves have reached a high state of economic
development.
In view of contiguity and similarity in composition of the native peoples in
South West Africa the native policy followed in South West Africa must
always be aligned with that of the Union, three-fifths of the population of
which is native. [p 618]
There is no prospect of the territory ever existing as a separate state, and
the ultimate objective of the Mandatory principle is therefore impossible of
achievement.
The Delegation of the Union of South Africa therefore claims that the
Mandate should be terminated and that the territory should be incorporated
as part of the Union of South Africa.
As territorial questions are however reserved for handling at the later
Peace Conference where the Union of South Africa intends to raise this
matter, it is here only mentioned for the information of the Conference in
connection with the Mandates question."
The Respondent's representative's statement on 14 May at the fourth meeting
of the aforesaid Committee is reported as follows:
"The delegate from the Union of South Africa, supplementing his remarks at
the third meeting, said that the Committer should bear in mind, in drawing
up general principles, that the terms of existing mandates could not be
altered without the consent of the Mandatory Power." (Italics added.)
At the same meeting the representative of the United States of America
pointed out that his Government did not seek to change the relations
existing between a mandatory and a mandated territory without the former's
consent. The Committee also recorded the following statement by the United
States delegate:
"The delegate for the United States said that paragraph B (5) was intended
as a conservatory or safeguarding clause. He was willing and desirous that
the Minutes of this Committee show that it is intended to mean that all
rights, whatever they may be, remain exactly the same as they exist�that
they are neither increased nor diminished by the adoption of this Charter.
Any change is left as a matter for subsequent agreements. The clause should
neither add nor detract, but safeguard all existing rights, whatever they
may be." (Italics added.)
The final report of the Committee to Commission II contained ail explanation
that specific provisions should be made to the effect that except as may be
agreed upon in individual trusteeship agreements and until such agreements
had been concluded, nothing in the Chapter on dependent territories is to be
interpreted as altering the rights of any States or any peoples or the terms
of existing international instruments to which Member States may be parties.
It will be observed in the first place that the object of paragraph B (5)
(which became Article 80) was to guard against the alteration of rights as a
result of the adoption of the Charter. In the second place, what was
safeguarded were the rights of States and of any peoples and the terms of
existing international instruments. It follows that Article 80 was not
intended to guard against an alteration of rights which came about by the
dissolution of the League. [p 619]
In regard to Article 6 of the South West Africa Mandate, the right against
the Respondent was that an annual report should be made to the Council of
the League of Nations, and in regard to Article 7 the right to bring an
action in this Court was confined to Members of the League of Nations. The
facts related above clearly provide no grounds for an inference that the
United Nations or any organ thereof was substituted for the Council of the
League on the dissolution of the League in Article 6 of the Mandate
Declaration, or that Members of the United Nations or ex-Members of the
League were substituted for Members of the League in Article 7. On the
contrary, they confirm the clear and unambiguous meaning of the words of
Article 80 (1). In any event, the subsequent conduct of the Members of the
League and Members of the United Nations clearly revealed that they never
regarded Article 80 (1) as containing an implied provision amending Articles
6 and 7 of the Mandate in the respects indicated.
The League's attitude towards the transfer of its functions under treaties
and conventions, including the Mandate instruments, was not known when the
United Nations Charter was drafted and agreed. It was at least known that
one Member of the League, namely, the Respondent, was opposed to such a
transfer as far as South West Africa was concerned. Furthermore, it is clear
that the whole Conference realized that the taking over of the functions of
the League required investigation and further agreement. It is for this
reason that towards the conclusion of the San Francisco Conference on 25
June 1945 there was established a Preparatory Commission of the United
Nations, each signatory State having one Member. One of the items of the
preparatory work entrusted to this Committee was to "formulate
recommendations concerning the possible transfer of certain functions,
activities and assets of the League of Nations which it may be considered
desirable for the new Organization to take over on terms to be arranged"
(italics added).
An Executive Committee of this Commission was appointed, and this Executive
Committee again appointed a Sub-Committee to investigate the possible
transfer of functions, activities and assets of the League. A report of the
Executive Committee was considered by the Commission in London on 24
November 1945, and the Commission rendered its report on 23 December 1945.
The aforesaid Sub-Committee recommended, with certain exceptions and
qualifications, the transfer of the functions, activities and assets of the
League, and one of the exceptions was the political functions of the League
"which have already ceased". In regard to the transfer of functions arising
from treaties, however, it recommended that the United Nations should adopt
a resolution expressing its willingness to exercise such functions and
powers [p 620] reserving, however, inter alia, the right to decide which
functions and powers it would be prepared to take over, and then added the
following:
"The transfer to the United Nations of functions or powers entrusted to the
League of Nations by treaties, conventions, agreements or instruments having
a political character would, if the Parties to these instruments desired, be
separately considered in each case." (Italics added.)
This paragraph was apparently not intended to apply to treaties,
conventions, agreements or instruments relating to the Mandates System, as
will appear from the specific observation made in regard to the Mandates
System. But it is significant that the Sub-Committee clearly considered that
there was no general succession by the United Nations to the functions and
powers entrusted to the League of Nations by treaties, conventions,
agreements or instruments having a political character. These matters were
to be separately considered in each case if the Parties to these instruments
so desired. The specific observation made in regard to Mandates was as
follows:
"Since the questions arising from the winding up of the Mandates System are
dealt with in Part 3, Chapter IV, no recommendation on this subject is
included here."
It will be observed that the Sub-Committee considered that the Mandates
System was being wound up, not that it was being continued, by a
substitution of the organs of the United Nations for the organs of the
League of Nations.
In Chapter IV (this is the chapter referred to in the aforesaid quotation),
the Executive Committee recommended that, in view of possible delay in the
establishment of a Trusteeship Council, a Temporary Trusteeship Committee
should be created to carry out certain of the functions assigned to the
Trusteeship Council. Pending the establishment of the Trusteeship Council,
this Temporary Committee was to advise the General Assembly on matters that
might arise with regard to the transfer to the United Nations of any
functions and responsibilities exercised until then under the Mandates
System. It recommended that the following be included in the proposed
provisional agenda of the Temporary Trusteeship Committee:
"Problems arising from the transfer of functions in respect of existing
Mandates from the League of Nations to the United Nations."
I return to the recommendations of the Sub-Committee. It recommended that a
small committee should be appointed to negotiate with the Supervisory
Commission of the League of Nations with [p 621] regard to the possible
transfer of functions, and activities, as well as assets.
The Executive Committee in substance accepted the Sub-Committee's
recommendations. Its recommendation No. I reads as follows:
"That the functions, activities and assets of the League of Nations be
transferred to the United Nations with such exceptions and qualifications as
are made in the report referred to above and without prejudice to such
action as the United Nations may subsequently take, with the understanding
that the contemplated transfer does not include the political functions of
the League, which in fact already ceased, but solely the technical and
non-political functions."
A part of the footnote thereof reads:
"The Committee recommends that no political questions should be included in
the transfer. It makes no recommendation to transfer the activities
concerning refugees, mandates, or international bureaux."
In regard to treaties, international conventions, agreements, and other
instruments having a political character, it suggested that the following
resolution should be adopted by the General Assembly:
"The General Assembly of the United Nations decides that it will itself
examine or will submit to the appropriate organ of the United Nations any
request from the Parties that the United Nations should take over the
exercise of functions or powers entrusted to the League of Nations by
treaties, international conventions, agreements, or other instruments having
a political character."
The above recommendations reveal that the Members of the Sub-Committee of
the Executive Committee did not consider that the United Nations had assumed
the functions of the League of Nations in treaties or conventions,
agreements or instruments having a political character. It was thought that
the transfer to the United Nations of the functions or powers of the League
under these instruments was still to be considered, and if the Parties to
such instruments so desired, separately in each case. In regard to Mandates,
it was specifically recommended that a Temporary Trusteeship Committee
should be appointed to advise the General Assembly on matters that might
arise with regard to the transfer of any functions or responsibilities to
the United Nations "hitherto exercised under the Mandates System". The
Executive Committee made no recommendation to transfer the activities of the
League under the Mandates, but made a general recommendation in regard to
treaties or conventions, agreements or other instruments having a political
character, namely, that the United Nations would consider a request from the
Parties in regard to the taking over of such functions or powers entrusted
to the League.[p 622]
At the discussion of the recommendations of the Executive Committee by the
Preparatory Commission, objections were raised to the use of the word
"transfer" in the recommendations concerning functions and activities of the
League, as this word appeared to imply "a legal continuity which would not
in fact exist", and it was suggested that the phrase "the assumption of
responsibility for certain functions and activities" should be adopted. This
was eventually done. The recommendations of the Commission relevant to
functions and powers were adopted by the General Assembly in its resolution
of 12 February.
The Preparatory Commission did not accept the recommendations in regard to a
Temporary Trusteeship Committee. They were replaced by a recommendation that
the General Assembly should adopt a resolution calling on States
administering territories under League of Nations Mandates to undertake
practical steps for submitting trusteeship agreements in respect of these
territories, "preferably not later than during the second part of the first
session of the General Assembly". No other proposal regarding the transfer
of functions and activities or the assumption of these functions and
activities was substituted for the rejected proposal. In the discussion in
the Fourth Committee of the Preparatory Commission, preceding this
resolution, Respondent's representative
"reserved the position of his delegation until the meeting of the General
Assembly, because his country found itself in an unusual position. The
mandated territory of South West Africa was already a self-governing
country, and last year its Legislature had passed a resolution asking for
admission into the Union. His Government had replied that acceptance of this
proposal was impossible owing to their obligations under the Mandate.
The position remained open, and his delegation could not record its vote on
the present occasion if, by so doing, it would imply that South West Africa
was not free to determine its own destiny. His Government would, however, do
everything in its power to implement the Charter."
In the discussion in the Plenary Committee meeting:
"the South African delegation associated itself wholly with a desire of
Committee IV to apply the principles laid down in the Charter, and that its
efforts had been directed towards that end. In view, however, of the special
position, of the Union of South Africa, which held a Mandate over South West
Africa, it reserved its position with regard to the document at present
under review, and especially because South Africa considered that it had
fully discharged the obligations laid upon it by the Allies, under the
Covenant of the League of Nations, on the advancement towards
self-government of territories under Mandate, and that the time had now come
for the position to be examined as a whole. For that reason the South [p
623] African delegation reserved its attitude until the Assembly met."
Once again, these facts negative the existence of any implied term, either
in the Covenant of the League, or in the Mandate Declaration, or in Article
80 (1) of the Charter of the United Nations, to the effect that the
supervisory functions of the Council of the League would be transferred to
an organ of the United Nations, or could be assumed by that Organization
without the consent of the Mandatories. If any such tacit agreement existed
and, in particular, if it had been intended that Article 80 (1) of the
Charter would have that effect, one would have expected that this would have
been mentioned during these deliberations and, in particular, in response to
the observations of the representative of the Respondent.
The Preparatory Commission's report was considered by the General Assembly
of the United Nations in January 1946. On 17 January the Respondent's
representative stated:
"Under these circumstances, the Union Government considers that it is
incumbent upon it, as indeed upon all other, mandatory Powers, to consult
the people of the mandated territory regarding the form which their own
future government should take, since they are the people chiefly concerned.
Arrangements are now in train for such consultations to take place and,
until they have been concluded, the South African Government must reserve
its position concerning the future of the mandate, together with its right
of full liberty of action, as provided for in paragraph I of Article 80 of
the Charter.
From what I have said I hope it will be clear that South West Africa
occupies a special position in relation to the Union which differentiates
that territory from any other C Mandate. This special position should be
given full consideration in determining the future status of the territory.
South Africa is, nevertheless, properly conscious of her obligations under
the Charter. I can give every assurance that any decision taken in regard to
the future of the mandate will be characterized by a full sense of Our
responsibility as a signatory of the Charter, to implement its provisions,
in consultation with and with the approval of the local inhabitants, in the
manner best suited to the promotion of their material and moral well-being."
Reservations were also made on this day by the representative of the United
Kingdom in regard to Palestine. Not a single delegate expressed any view to
the effect that the attitudes adopted by the Respondent and the United
Kingdom were inconsistent with Article 80 (1) or any other provision of the
Charter or Mandate. On the contrary, the Respondent claimed that it had a
full liberty of action under Article 80 (1). [p 624]
On 22 January 1946, in the Fourth Committee, Respondent's representative
"referring to the text of Article 77, said that under the Charter the
transfer of the mandates regime to the trusteeship system was not
obligatory. According to paragraph I of Article 80, no rights would be
altered until individual trusteeship agreements were concluded. It was wrong
to assume that paragraph 2 of this Article invalidated paragraph I. The
position of the Union of South Africa was in conformity with this legal
interpretation.
He explained the special relationship between the Union and the territory
under its mandate, referring to the advanced stage of self-government
enjoyed by South West Africa, and commenting on the resolution of the
Legislature of South West Africa calling for amalgamation with the Union.
There would be no attempt to draw up an agreement until the freely expressed
will of both the European and native populations had been ascertained. When
that had been done, the decision of the Union would be submitted to the
General Assembly for judgment."
It will be observed that on this occasion the Respondent's representative
again relied upon Article 80 (1) of the Charter, stressing that rights were
not altered. His reference to submitting the decision of the people of South
West Africa to the judgment of the General Assembly cannot be taken as an
acknowledgment that the supervisory functions of the Council of the League
had been transferred to the General Assembly. It was no more than a specific
undertaking to ask the General Assembly for its judgment on this particular
issue. It was obviously a matter which the Assembly could discuss at the
Respondent's request.
On 9 February 1946 the General Assembly passed a resolution which stated,
inter alia:
"with respect to Chapters XII and XIII of the Charter, the General Assembly:
Welcomes the declarations, made by certain States administering territories
now held under mandate, of an intention to negotiate trusteeship agreements
in respect of some of those territories and, in respect of Transjordan, to
establish its independence.
Invites the States administering territories now held under mandate to
undertake practical steps, in concert with the other States directly
concerned, for the implementation of Article 79 of the Charter (which
provides for the conclusion of agreements on the terms of trusteeship for
each territory to be placed under the trusteeship system), in order to
submit these agreements for approval, preferably not later than during the
second part of the first session of the General Assembly."
On 12 February 1946, it passed the following further resolution:[p 625]
"Transfer of certain functions, activities and assets of the League of
Nations
I
Functions and flowers belonging to the League of Nations under international
agreements
Under various treaties and international conventions, agreements and other
instruments, the League of Nations and its organs exercise, or may be
requested to exercise, numerous functions or powers for the continuance of
which, after the dissolution of the League, it is, or may be, desirable that
the United Nations should provide.
Certain Members of the United Nations, which are parties to some of these
instruments and are Members of the League of Nations, have informed the
General Assembly that, at the forthcoming session of the Assembly of the
League, they intend to move a resolution whereby the Members of the League
would, so far as this is necessary, assent and give effect to the steps
contemplated below.
Therefore:
1. The General Assembly reserves the right to decide, after due examination,
not to assume any particular function or power, and to determine which organ
of the United Nations or which specialized agency brought into relationship
with the United Nations should exercise each particular function or power
assumed.
2. The General Assembly records that those Members of the United Nations
which are parties to the instruments referred to above assent by this
resolution to the steps contemplated below and express their resolve to use
their good offices to secure the cooperation of the other parties to the
instruments so far as this may be necessary.
3. The General Assembly declares that the United Nations is willing in
principle, and subject to the provisions of this resolution and of the
Charter of the United Nations, to assume the exercise of certain functions
and powers previously entrusted to the League of Nations, and adopts the
following decisions, set forth in A, B, and C below.
A. Functions pertaining to a Secretariat
������������������������������������
B. Functions and Powers of a Technical and Non-Political Character
Among the instruments referred to at the beginning of this resolution are
some of a technical and non-political character which contain provisions,
relating to the substance of the instruments, whose due execution is
dependent on the exercise, by the League of Nations or particular organs of
the League, of functions or powers conferred by the instruments. Certain of
these instruments are intimately connected with activities which the United
Nations will or may continue.[p 626]
It is necessary, however, to examine carefully which of the organs of the
United Nations or which of the specialized agencies brought into
relationship with the United Nations should, in the future, exercise the
functions and powers in question, in so far as they are maintained.
Therefore.
The General Assembly is willing, subject to these reservations, to take the
necessary measures to ensure the continued exercise of these functions and
powers, and refers the matter to the Economic and Social Council.
C. Functions and Powers under Treaties, International Conventions,
Agreements and Other Instruments Having a Political Character
The General Assembly will itself examine, or will submit to the appropriate
organ of the United Nations, any request from the parties that the United
Nations should assume the exercise of functions or powers entrusted to the
League of Nations by treaties, international conventions, agreements and
other instruments having a political character..."
It will be observed that the statement of general willingness to ensure the
continued exercise of the League's functions and powers was limited to
functions and powers of a non-political character. The supervisory functions
and powers of the organs of the League under the Mandates were clearly
political, and the portion of the resolution under which such powers and
functions fall is Part 1, C (3), which required for the assumption of such
functions or powers by the United Nations (a) a request from the parties,
and (b) an examination of that request by the General Assembly or an
appropriate organ of the United Nations nominated by the General Assembly.
In a Dissenting Opinion in the Hearing of Petitions by the Committee on
South West Africa, 1956, I.C.J. 23, at page 65, Judges Badawi, Basdevant,
Hsu Mo, Armand Ugon and Moreno Quintana remarked:
"Resolution 24 (1) adopted by the General Assembly on February 12th, 1946,
had made provision with regard to the method to be adopted for the
examination of any request 'that the United Nations should assume the
exercise of functions or powers entrusted to the League of Nations by
treaties, international conventions, agreements and other instruments having
d political character'. Here appeared the idea of a possible transfer of
powers entrusted to the League of Nations. But the course indicated by that
Resolution was not followed. The Union of South Africa has not submitted to
the General Assembly any request that the latter should assume the 'powers
entrusted' to the Council of the League of Nations."
Once again, the significance of these facts is that they are inconsistent
with the suggestion that there must have been an [p 627] implied agreement
in Article 80 (1) of the Charter or any other provision thereof that the
United Nations would automatically, without any agreement on the part of the
Mandatories, take the place of or assume the functions of the League, in
regard to the Mandates.
The Assembly of the League assembled for the last time from 8-18 April 1946.
On the last-mentioned date it dissolved the League. It adopted resolutions
referring to the transfer of its assets and non-political functions and, in
addition, also passed the following resolution relating to the Mandates:
"The Assembly:
Recalling that Article 22 of the Covenant applies to certain territories
placed under mandate the principle that the well-being and development of
peoples not yet able to stand alone in the strenuous conditions of the modem
world form a sacred trust of civilization:
1. Expresses its satisfaction with the manner in which the organs of the
League have performed the functions entrusted to them with respect to the
mandates system and in particular pays tribute to the work accomplished by
the Mandates Commission;
2. Recalls the role of the League in assisting Iraq to progress from its
status under an 'A' mandate to a condition of complete independence,
welcomes the termination of the mandated status of Syria, the Lebanon, and
Transjordan, which have, since the last session of the Assembly, become
independent members of the world community;
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." (Italics added.)
To appreciate the significance of this resolution, knowledge of the events
that preceded it and, in particular, of the declarations of the
representatives of Mandatories at this final meeting of the League, is
essential. These events and statements also clearly reveal that up to that
stage there had been no agreement, express or implied, that the functions of
the League relative to .Mandates were to be transferred to the United
Nations. The following are extracts from declarations by Mandatories: [p
628]
(i) By the representative of the United Kingdom (on the 9th April, 1946):
"The Mandates administered by the United Kingdom were originally those for
Iraq, Palestine, Transjordan, Tanganyika, part of the Cameroons and part of
Togoland. Two of these territories have already become independent sovereign
States, Iraq in 1923, and Transjordan just the other day in 1946. As for
Tanganyika and Togoland under their mandate, and the Cameroons under their
mandate, His Majesty's Government in the United Kingdom have already
announced their intention of placing them under the trusteeship system of
the United Nations, subject to negotiations on satisfactory terms of
trusteeship.
The future of Palestine cannot be decided until the Anglo-American Committee
of Enquiry have rendered their report, but until the three African
territories have actually been placed under trusteeship and until fresh
arrangements have been reached in regard to Palestine�whatever those
arrangements may be�it is the intention of His Majesty's Government in the
United Kingdom to continue to administer these territories in accordance
with the general principles of the existing mandates." (Italics added.)
(ii) By the representative of South Africa (on the 9th April, 1946). "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. As was fully explained at the recent
United Nations General Assembly in London, the Union Government have deemed
it incumbent upon them to ' consult the peoples of South West Africa,
European and non- European alike, regarding the form which their own future
Government should take. On the basis of those consultations, and having
regard to the unique circumstances which so signally differentiate South
West Africa�a territory contiguous with the Union�from all other 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. As the Assembly will know, it
is already administered under the terms of the Mandate 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 these 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 [p 629] time as other arrangements are
agreed upon concerning the future status of the territory." (Italics added.)
(iii) By the representative of France (on the 10th April, 1946):
"The French Government intends to pursue the execution of the mission
entrusted to it by the League of Nations. It considers that it is in
accordance with the spirit of the Charter that this mission should
henceforth be carried out under the regime of trusteeship and it is ready to
examine the terms of an agreement to define this regime in the case of
Togoland and the Cameroons"
(iv) By the representative of New Zealand (on the 11th April, 1946): "New
Zealand has always strongly supported the establishment of the International
Trusteeship System, and has already declared its willingness to place the
mandated territory of Western Samoa under trusteeship... New Zealand does
not consider that the dissolution of the League of Nations and, as a
consequence, of the Permanent Mandates Commission will have the effect of
diminishing her obligations to the inhabitants of Western Samoa, or of
increasing her rights in the territory. Until the conclusion of Our
Trusteeship Agreement for Western Samoa, therefore, the territory will
continue to be administered by New Zealand, in accordance with the terms of
the Mandate, for the promotion of the well-being and advancement of the
inhabitants." (Italics added.)
(v) By the Belgian representative (on the 11th April, 1946):
"At the meeting of the General Assembly of the United Nations in London on
January 20th last, she declared her intention of entering into negotiations
with a view to placing the Territory of. Ruanda-Urundi under the new regime.
In pursuance of this intention, the Belgian Government has prepared a draft
agreement setting out the conditions under which it will administer the
territory in question.
In the course of the same declaration of January 20th, we expressed our
confidence that the Trusteeship Council would soon come to occupy in the
United Nations Organization the important place which it deserves. We can
only repeat that hope here and give an assurance that, pending its
realisation, Belgium will remain fully alive to all the obligations
devolving on members of the United Nations under Article 80 of the
Charter."'
(vi) By the Australian representative (on the 11th April, 1946):
"The trusteeship system, strictly so called, will apply only to such
territories as are voluntary brought within its scope by individual
trusteeship agreements... After the dissolution of the League of Nations and
the consequent liquidation of the Permanent Mandates Commission, it will be
impossible to continue the mandates system in its entirety.
Notwithstanding this, the Government of Australia does not -regard the
dissolution of the League as lessening the obligations imposed upon it for
the protection and advancement of the inhabitants of the mandated
territories, which it regards as having still full force [p 630] and effect.
Accordingly, until the coming into force of appropriate trusteeship
agreements under Chapter XII of the Charter, the Government of Australia
will continue to administer the present mandated territories, in accordance
with the provision of the Mandates, for the protection and advancement of
the inhabitants. In making plans for the dissolution of the League, the
Assembly will very properly wish to be assured as to the future of the
mandated territories, for the welfare of the peoples of which this League
has been responsible. So far as the Australian territories are concerned,
there is full assurance. In due course these territories will be brought
under the trusteeship system of the United Nations; until then, the ground
is covered not only by the pledge which the Government of Australia has
given to this Assembly today but also by the explicit international
obligations laid down in Chapter XI of the Charter, to which I have
referred. There will be no gap, no interregnum, to be provided for."'
(Italics added.)
The words "to which I have referred" referred to a prior statement which
included inter alia the following comment relevant to Chapter XI of the
Charter:
"... Amongst other things, each administering authority under that chapter
undertakes to supply to the United Nations information concerning economic,
social and educational conditions in its dependent territories."
If any Member of the League thought that either the Mandate Declaration, the
Covenant of the League or the Charter of the United Nations contained an
implied provision which had the effect of transferring the functions of the
organs of the League to the organs of the United Nations and, in particular,
if Article 80 (1) of the Charter had been intended to have this effect, one
would have expected the Mandatories or other Members of the League present
at this final meeting of the Assembly of the League to have said so.
The representative for Australia could not have thought it necessary to
refer to Article 73 if he thought that the duty to account to the Council of
the League would automatically be transferred to the United Nations on the
dissolution of the League.
The Respondent's representative, when saying the following:
"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",
would have added that the Mandate contained an implied term or that Article
80 (1) of the Charter had been intended to mean, that the organs of the
United Nations would be substituted for the [p 631] organs of the League.
But he did not Say so. On the contrary, he said that the Respondent would
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". (Italics added.)
During this period referred to by the Respondent, Article 6 was not applied.
Nor was Article 7 invoked. There was no suggestion that the supervisory
functions of the Council of the League were being transferred to any organ
of the United Nations. Similarly, when the representative of the United
Kingdom stated that it was the intention of His Majesty's Government "to
continue to administer these territories in accordance with the general
principles of the existing Mandates", he did not suggest that Great Britain
was prepared to accept the supervision of the United Nations in the place of
the Council of the. League. This is not only implicit in the words used by
the representatives, but also emerges clearly from the report of the United
Nations Special Committee on Palestine, which is fully dealt with infra. A
portion of the report reads as follows:
"The mandatory Power, in the absence of the League and its Permanent
Mandates Commission, had no international authority to which it might submit
reports and generally account for the exercise of its responsibilities in
accordance with the terms of the Mandate. Having this in mind, at the final
session of the League Assembly the United Kingdom representative declared
that Palestine would be administered 'in accordance with the general
principles' of the existing Mandate until 'fresh arrangements had been
reached'." (Italics added.)
The representative of China, Dr. Liang, appreciated that the aforesaid
declarations of intent by the representatives of the Respondent and the
United Kingdom did not embrace any undertaking to accept the supervision of
the United Nations in the place of the League, and accordingly on afternoon
of 9 April 1946 wished to propose for discussion the following draft
resolution:
"The Assembly:
Considering that the Trusteeship Council of the United Nations has not yet
been constituted and that all mandated territories under the League have not
been transformed into territories under trusteeship;
Considering that the League functions as supervisory organ for mandated
territories should be transferred to the United Nations after the
dissolution of the League in order to avoid a period of interregnum in the
supervision of the mandated territories;
Recommends that the mandatory powers as well as those administering ex-enemy
mandated territories shall continue to submit annual reports on these
territories to the United Nations and to submit to inspection by the same
until the trusteeship council shall have been constituted."[p 632]
This resolution was, however, ruled not relevant to the items under
discussion and was not proceeded with. Informal discussions followed, and
Dr. Liang eventually introduced a neu7 draft which differed very materially
from the one he originally sought to introduce. This new draft was
unanimously agreed to by the League Assembly. In proposing the new draft,
Dr. Liang
"recalled that he had already drawn the attention of the Committee to the
complicated problems arising in regard to mandates from the transfer of
functions from the League to the United Nations. The United Nations Charter
in Chapters XII and XIII established a system of trusteeship based largely
upon the principles of the mandates system, but the functions of the League
in that respect were not transferred automatically to the United Nations.
The Assembly should therefore take steps to secure the continued application
of the principles of the mandates system. As Professor Bailey had pointed
out to the Assembly on the previous day, the League would wish to be assured
as to the future of mandated territories. The matter had also been referred
to by Lord Cecil and other delegates.
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. It was to be hoped that the
future arrangements to be made with regard to these territories would apply
in full the principle of trusteeship underlying the mandates system.
The Chinese delegation had pleasure in presenting the draft resolution now
before the Committee, so that the question could be discussed by the
Assembly in a concrete form and the position of the League clarified."
(Italics added.)
The delegate for Egypt abstained from voting, as the view of his Government
was that the dissolution of the League terminated the Mandates.
The above facts again clearly reveal that there could not have been any
understanding that the Covenant, the Mandate Declarations or Article 80 (1)
of the Charter impliedly provided that the functions of the organs of the
League under the Mandate instruments would be transferred to the United
Nations until trusteeship agreements were introduced, or that the Mandate
instruments were being amended in any other respect.
It has been suggested that the aforesaid resolution of the Assembly of the
League, relative to the Mandates, in effect constitutes a tacit agreement in
terms whereof the Mandatories, including the Respondent, agreed with the
other Members of the League that the Mandate Declarations would be amended
by substituting ex-Members of the League or Members of the United Nations in
the compromissory clauses for Members of the League, and to the transfer of
the supervisory functions of the League to the United Nations. [p 633]
This resolution, however, particularly if it is considered against the
background set out above, clearly reveals that there existed no such tacit
agreement.
The suggestion that the resolution was adopted "with a view of averting any
objections that might be derived from the form of the words 'another Member
of the League of Nations' " is the 1962 product of a fruitful imagination.
It has no factual basis.
The wording of the resolution shows that there was no intention to record
therein any agreement whatever. It "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". It "takes note"
of the expressed intentions of the Members of the League "to administer them
for the well-being and development of the peoples concerned in accordance
with the obligations contained in the respective Mandates". If it was the
intention of the parties to agree that the terms of the Mandate Declarations
should be amended in the important respects suggested, the resolution would
have said so. It is inconceivable that the trained lawyers and the skilled
draftsmen at the disposal of the League would have employed the wording they
did had the intention been to amend the provisions of the Mandates.
Not one of the Mandatories had made a declaration to the effect that the
procedural provisions of the Mandate Declarations would continue to apply,
or that they would be amended in any particular manner so as to make their
fulfillment possible. The United Kingdom in its declaration had reserved its
future intentions in regard to Palestine. The Respondent made it clear that
it would continue to administer the territory as it had done during the
"past six years". During those years the League was moribund and the
Permanent Mandates Commission did not function. The League Assembly was
aware that the United Nations had resolved that it would consider assuming
the powers of the League in regard to the Mandates only at a request from
the interested parties. The Chinese representative realized that in the
absence of a request by the Mandatory the functions of the League could not
be assumed by the United Nations. This he wanted to avoid when he sought to
propose his first draft, in which the view was expressed that the League
functions as supervisory organ for the Mandated territories should be
transferred to the United Nations. This view was not only inconsistent with
the views of the Members of the United Nations who had been parties to the
aforesaid resolution of the United Nations, but also in conflict with the
clear attitudes of at least two of the Mandatories who were present at the
dissolution of the League. That such a resolution could not receive the
unanimous support of the Members of the League seems obvious.[p 634]
If it had been the intention to amend the Mandates in the respects
suggested, why was the representative of Egypt not told when he declined to
vote for the resolution on the ground that, in his view, the dissolution of
the League terminated the Mandates ?
To suggest that the parties had deliberately decided to express in tacit
terms what had been proposed in the first Chinese draft resolution in
express terms is absurd.
The resolution can clearly only reflect what the declarations by the
Mandatories intended to convey, and these declarations made no reference to
the procedural provisions of the Mandates Declarations but were confined to
the administrative obligations relating to the well-being and development of
the peoples concerned.
Only the Council of the League and the Mandatories concerned could have
amended the terms of the Mandates under the provisions of Article 7 of the
Mandate Declaration for South West Africa and similar provisions appearing
in all the other Mandate Declarations. Had the members of the Council (or
the Assembly acting on behalf of the Council) intended to act in terms of
these provisions, this fact would have appeared in the resolution
It must be borne in mind that a decision of the Council of the League had to
be unanimous, and this means that before such a tacit intention can be
ascribed to the Council, one must be satisfied that every member of the
Council who voted for the resolution must have intended it to constitute an
agreement amending the terms of the Mandate Declarations.
The representative of Australia had made it clear in his Declaration that
the view of Australia was that Article 73 of the Charter of the United
Nations applied to the Mandates. This view was apparently shared by the
Members of the League, hence the reference to Chapter XI in the resolution.
It does not matter whether the representative of Australia or the Members of
the League were right or wrong in thinking that Article 73 applied to the
Mandated territories. The fact is that they thought so, and this has an
important bearing on their probable intentions in regard to the suggested
amendments of the Mandate Declarations. If Chapter XI applies (Article 73 is
one of the two articles of Chapter XI) to the Mandated territories, and if
the resolution of the League was intended to amend the Mandate Declarations
in the respects suggested, it means that the Members of the League intended
that after the dissolution of the League there would be in operation two
overlapping sacred trusts in respect of each Mandated territory, supervised
by the same body, to which each Mandatory had to render two reports, that
different procedures had to be followed in respect of each, and that this
Court may have compulsory jurisdiction in regard to one, but not in regard
to the other. Such an absurd result could not possibly have been
contemplated [p 635]
I have already made it clear that in this matter the consent of the Court's
jurisdiction must be embodied in a treaty or convention.
This Court can therefore only have regard to the resolution of the League
for the purposes of determining jurisdiction if it is a treaty or convention
in force. I fail to see how an implied term of a resolution such as the one
in question can ever be regarded as a treaty or convention; but even if it
is, it cannot be invoked in this Court inasmuch as Article 102 of the
Charter provides that no treaty or international agreement entered into
after the Charter came into force may be invoked before any organ of the
United Nations if it has not been registered in accordance with the
provisions of paragraph (1) of Article 102. The aforesaid resolution of the
League has not been registered. I may add that several treaties entered into
in pursuance of the other resolutions of the League passed at its
dissolution have been duly registered. The inference that the parties did
not consider the resolution to constitute a treaty or international
agreement is inescapable.
Neither before nor since the dissolution of the League has the Respondent
been a party to any agreement in terms whereof any of the provisions of the
Mandate instrument were amended. At no time did the Respondent request the
United Nations to assume any function or power of the League under the
Mandates, nor did the General Assembly of the United Nations or any organ
nominated by it ever consider such a request. The Respondent did not at any
time admit that the United Nations had taken over the functions of the
League; on the contrary, it has consistently denied that the United Nations
had been substituted for -the League.
Many of the founder Members of the United Nations who attended the San
Francisco Conference and the dissolution of the League have expressed views
which reveal that they were unaware of any common intention or tacit
agreement that the United Nations was being substituted for the League in
the Mandate instruments or that the obligation to report to the Council of
the League of Nations had been amended so that the report now has to be made
to the United Nations. How can such a common intention be referred when it
does not appear from the words of the instruments and when so many parties
to the instruments were unaware thereof ?
The trusteeship agreement for the Mandated territory of Narau was entered
into as late as November 1947, i.e. more than a year after the League of
Nations had ceased to exist. The United Kingdom withdrew from the
administration of Palestine in May 1948, more than two years after the
dissolution of the League, yet no reports were submitted to the United
Nations in respect of [p 635] either territory during the aforesaid periods.
If there had bee~ the suggested tacit agreement, one would have expected
reference to have been made thereto, when no reports were forthcoming from
the Mandatories of the aforesaid territories. It is common cause that not a
single State ever suggested that such reports should be submitted.
A study of the history of the Palestine Mandate reveals that Members of the
United Nations could not have had any intention of substituting the United
Nations in the place of the League in Mandates. The resolution of the League
Assembly applied as much to Palestine as it applied to South West Africa;
Article 80 (1) of the Charter of the United Nations applied as much to
Palestine as it applied to South West Africa. A United Nations Special
Committee, consisting of eleven Members, was appointed to examine the case
of Palestine. These members were Australia, Canada, Czechoslovakia,
Guatemala, India, Iran, Netherlands, Peru, Sweden, Uruguay and Yugoslavia.
In its report dated 3 September 1947, the Committee clearly expressed its
view that there was on the dissolution of the League no supervisory
authority in respect of the administration of Palestine, and that no
obligation on the part of the Mandatory to submit to any supervision
existed. This appears from the following extracts from the report:
"The Mandatory Power, in the absence of the League and its Permanent
Mandates Commission, had no international authority to which it might submit
reports and generally account for the exercise of its responsibilities in
accordance with the terms of the Mandate."
"The international trusteeship system, however, has not automatically taken
over the functions of the Mandates System with regard to mandated
territories. Territories can be placed under trusteeship only by means of
trusteeship agreements approved by a two-thirds majority of the General
Assembly. The most the Mandatory could now do, therefore, in the event of
the continuation of the Mandate, would be to carry out its administration in
the spirit of the Mandate without being able to discharge its international
obligations in accordance with the intent of the Mandates System."
The above report on Palestine contained, inter alia, also a special note by
Sir Abdur Rahman, the representative of India, which contained the following
passage:
"Moreover, the international machinery in the form of the Permanent Mandates
Commission which had been created for the purpose of scrutinizing the
actions of the Mandatory Powers, and to which they were bound to submit
annual reports has, along with the League of Nations, ceased to exist. There
are no means by =Rich the international obligations in regard to Mandates
can be discharged by the United Nations." (Italics added.)
I have already pointed out that until 1948 not a single Member of the United
Nations or a single ex-Member of the League contend-[p 637]ed that the
organs of the United Nations had been substituted for the organs of the
League in respect of the Mandates. No less than 29 States expressed views in
conformity with the Respondent's contention that the United Nations has no
supervisory authority in respect of South West Africa. I quote a few
examples:
On 25 September 1947, Mr. Lui Chieh of China expressed the following view in
the Fourth Committee:
"The only choice lay between trusteeship and the grant of independence.
Article 80, paragraph 2, of the Charter further proved the obligatory
character of the (the trusteeship) system... If the Union of South Africa
placed South West Africa under trusteeship, it would not be deprived of the
administration of the territory; and the only change would be the placing of
that administration under international supervision." (Italics added.)
Again, on I November 1947, he made the following statement in the General
Assembly:
"We are told that the Union of South Africa would administer the Territory
of South West Africa in the spirit of the Mandate of the League of Nations.
I do not doubt the sincerity of this statement on the part of the Union of
South Africa, but we all know that the mandate system has ceased to exist
and that the Trusteeship System has been established. Would it not be more
desirable to administer the Territory in question under a living system than
under the shadow of a ghost system?"
On the same day, Mr. Yepes of Colombia made the following remarks in the
General Assembly:
"... on whose behalf would the mandate of the old League of Nations be
exercised?
It could certainly not be the League of Nations, for it has ceased to exist,
and the mandate could not be exercised on behalf of a dead institution. In
civil law, as we all know, power of Attorney ceases upon the death of the
principal. The same idea extends, by analogy, to international law. We can
conclude that, since the League of Nations is dead, mandates exercised under
its authority have also lapsed, and the territories concerned must fall
under the Trusteeship System established by Article 77 of the Charter."
On 26 September 1947, the representative of Cuba made the following
statement in the Fourth Committee:
Mr. Meyer: "... the information submitted by the Government of the Union of
South Africa with regard to South West Africa could not be examined since
South West Africa was neither a Trust Territory nor a Non-Self-Governing
Territory"
In December 1947, India submitted a draft resolution which contained the
following statement:[p 638]
"Whereas the territory of South West Africa, though not self-governing, is
at present outside the control and supervision of the United Nations."
On 12 December 1947, Mr. Gerig of the United States of America expressed the
following view in the Trusteeship Council:
"It was said here earlier this afternoon, and I did not hear any member
object, that while we all hope�my delegation as much as any delegation feels
that way�that there will be a trusteeship agreement for this territory, we
do not, in the absence of a trusteeship agreement, have supervisory
functions over this territory. Therefore, I do not think we ought to imply
that we do have supervisory functions to ensure that the Union Government
discharges its duties under the present mandate, admitting that it exists."
(Italics added.)
On 19 March 1948, the United States representative expressed the following
view in the Security Council:
"The United Nations does not automatically fall heir to the responsibilities
either of the League of Nations or of the Mandatory Power in respect of the
Palestine Mandate. The records seem to us entirely clear that the United
Nations did not take over the League of Nations Mandates System."
During the years following the establishment of the United Nations, the
Respondent's representatives repeatedly asserted that the supervisory
functions of the organs of the League had not been transferred to the United
Nations, and until 1948 not a single State contradicted this assertion.
Thus, for example, on 25 September 1947, in the Fourth Committee, Mr.
Lawrence, representing the Respondent, said:
"In respect of its Administration of South West Africa, that Government [of
the Union of South Africa] would maintain the status quo in the spirit of
the Mandate. It would not submit a trusteeship agreement, but would transmit
information annually. Information relating to 1946 was now in the hands of
the Secretary-General."
And two days later, also in the Fourth Committee, he amplified his remarks
as follows:
"In reply to the request made by the Danish representative at the 3Ist
meeting regarding clarification of document A/334, Mr Lawrence stated that
the Mandate gave certain powers and imposed certain obligations. The
Government of the Union of South Africa had full powers of administration
over South West Africa, and it proposed to continue to exercise them, just
as it would continue to fulfil its obligations under the Mandate to promote
the moral and material well-being of the population and to advance social
progress. The Union of South Africa did not claim that South West Africa was
a colony, but it was willing to submit annual reports like those required
for the Non-Self-Governing Territories under Article 73 (e).[p 639]
The right to petition had ceased to exist with the disappearance of the
League of Nations, the authority to which petitions could be addressed. In
the absence of a trusteeship agreement, the United Nations had no
jurisdiction over South West Africa and therefore no right to receive
petitions."
On I November 1947, in the General Assembly, Mr. Lawrence again emphasized
that reports rendered by the Union to the United Nations were being rendered
on the basis that the United Nations has no supervisory jurisdiction in
respect of the territory. He is reported to have said:
"In addition, the Government of the Union of South Africa has expressed its
readiness to submit annual reports for the information of the United
Nations. That undertaking stands.
Although these reports, if accepted, will be rendered on the basis that the
United Nations has no supervisory jurisdiction in respect of this Territory,
they will serve to keep the United Nations informed in much the same way as
they will be kept informed in relation to Non-Self-Governing Territories
under Article 73 (e) of the Charter.�
These assertions were not challenged.
One therefore finds that, not only was nothing said in the Charter of the
United Nations or at the time of its drafting, to the effect that the
Council of the League was being superseded in the Mandate by an organ of the
United Nations, or that. the supervisory functions of the Council of the
League were being transferred to the United Nations, but also that nothing
was said to this effect prior to the dissolution of the League, at the
dissolution of the League, or during the years immediately following the
dissolution of the League. On the contrary, one finds that the declarations
by the Respondent's representatives, and the representatives of other
Members of the United Nations during this time, reveal that it was not
assumed that the organs of the United Nations would automatically become
heir to the powers and functions of the organs of the League in the Mandate
instruments.
The history of the Preparatory Commission, the history of the dissolution of
the League, the report of the Palestine Commission, the statements by the
Respondent and other Members of the United Nations in a variety of
circumstances and situations, and within a comparatively short time after
the San Francisco Conference, when the events of what happened at the
Conference were still reasonably fresh in their memories, effectively
negative the suggestion that there was a tacit agreement between Members of
the United Nations and the Mandatories that the organs of the United Nations
would be substituted for the organs of the League relative to the
supervision of the Mandates.
It should be noted that at no stage was it even suggested that the Mandate
instruments were being amended by substituting ex-[p 640]membership of the
League or membership of the United Nations for membership in the League of
Nations in the provisions of the Mandates Declarations. It was not mentioned
at the San Francisco Conference, it was not mentioned by the Preparatory
Committee, it was not mentioned at the dissolution of the League. During the
years following immediately upon the dissolution of the League not a single
State expressed the view that it was under the impression that such an
amendment had been brought about.
The above considerations compel me to conclude that those provisions of the
Mandates which depended for their fulfillment on the existence of the League
of Nations were not impliedly amended in any respect, and accordingly ceased
to apply on the demise of the League; in any event that the compromissory
clause in Article 7 was not amended in any way, and accordingly no longer
applies.
The conclusion to which I have come is in conflict with parts of the
Advisory Opinion of this Court given in 1950 in International Status of
South West Africa, I.C.J. Reports 1950, p. 128. It must therefore be
carefully examined, Although the Court's finding in regard to Article 6 is
not directly relevant to the issue now being considered, it is difficult
owing to the overlapping of reasons to confine oneself to the Court's
reasons for its conclusion in regard to Article 7 without reference to the
decision in regard to Article 6.
The conclusion of the majority of the Court in regard to Articles 6 and 7 of
the Mandate is to be found in the following extracts from the Opinion:
"It follows from what is said above that South West Africa is still to be
considered as a territory held under the Mandate of December 17th, 1920. The
degree of supervision to be exercised by the General Assembly should not
therefore exceed that which applied under the Mandates System, and should
conform as far as possible to the procedure followed in this respect by the
Council of the League of Nations. These observations are particularly
applicable to annual reports and petitions.
According to Article 7 of the Mandate, disputes between the mandatory State
and another Member of the League of Nations relating to the interpretation
or the application of the provisions of the Mandate, if not settled by
negotiation, should be submitted to the Permanent Court of International
Justice. 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."
Before dealing with the specific reasons advanced in the majority Opinion
for the aforesaid conclusions, some general remarks in the Opinion preceding
these reasons should be commented on: [p 641]
"The object of the Mandate regulated by international rules far exceeded
that of contractual relations regulated by international law. The Mandate
was created, in the interest of the inhabitants of the territory, and of
humanity in general, as an international institution with an international
object�a sacred trust of civilization. It is therefore not possible to draw
any conclusion by analogy from the notions of mandate in national law or
from any other legal conception of that law. The international des
regulating the Mandate constituted an international status for the Territory
recognized by all the Members of the League of Nations, including the Union
of South Africa."'
While it is correct to Say that the notions of mandate in municipal law
cannot be applied in the interpretation of the provisions of the Mandate
instruments, this is no reason for ignoring the fact that Article 22 of the
Covenant of the League is a term of an agreement, and that the rights and
obligations created thereby must be determined in accordance with the
provisions of the international law relating to the interpretation of
treaties and conventions, that is, this Court must determine as accurately
as possible the true common intention of all the parties concerned, in
accordance with the appropriate rules of construction. Rosenne, op. cit.,
page 318, crisply states the principle as follows:
"Treaty interpretation attempts to elucidate the combined intention of two
or more signatories."
It has been shown that Article 22 of the Covenant must be interpreted with
due regard to all its provisions and to all the relevant facts, and that the
detailed obligations of the Respondent recorded therein cannot be amended by
this Court by reason of the general principles stated therein; in
particular, this Court has no power to provide for its own compulsory
jurisdiction.
If, therefore, the above quoted statement of the Court was intended to
suggest that the obligations of the Respondent exceeded those it intended to
undertake when agreeing to Article 22 of the Covenant, it cannot be accepted
as correct. Nor can the Mandate Declaration be interpreted as meaning that
the Respondent had agreed to accept the supervision of another international
body on the dissolution of the League, or that it had agreed that the words
"Member of the League" in Article 7 could be amended by this Court to read
"Members of the United Nations" or "ex-Members of the League".
On page 133 the Opinion states, "the authority which the Union Government
exercises over the territory is based on the Mandate". To this one should
add that, similarly, the Respondent's obligations are based on the Mandate.
The Opinion then proceeds:
"If the Mandate lapsed, as the Union Government contends, the latter's
authority would equally have lapsed. To retain the rights [p 642] derived
from the Mandate and to deny the obligations thereunder could not be
justified."
Inasmuch as the Respondent's attitude in 1950 was that the Mandate had
lapsed, the above remark was relevant to show that this attitude was
inconsistent with any claim that the Respondent still had rights which
flowed from the Mandate. It however has no relevance to the question whether
Article 6 or 7 still applies. In any event, if in law Articles 6 and 7 no
longer apply, and if the effect thereof is that Respondent's rights under
the Mandate have terminated, the fact that Respondent still claims these
rights cannot revive Articles 6 and 7. If the whole of the Mandate has
lapsed Article 7 no longer applies; if Articles 1-6 or 1-5 are still in
force, it does not follow that the compromissory clause in Article 7 still
applies in the sense that it is capable of being invoked. As I have already
indicated, the compromissory clause of Article 7 is clearly not essential
for the existence of the other provisions.
The Opinion then proceeds:
"These international obligations, assumed by the Union of South Africa, were
of two kinds. One kind was directly related to the administration of the
Territory, ~d corresponded to the sacred trust of civilization referred to
in Article 22 of the Covenant. The other related to the machinery for
implementation, and was closely linked to the supervision and control of the
League. It corresponded to the 'securities for the performance of this
trust' referred to in the same article."
If this statement was intended to mean that the provisions of Article 7 of
the Mandate which provide that any Member of the League of Nations could
institute proceedings against the Respondent in the event of a dispute
relating to the interpretation or application of the provisions of the
Mandate was one of the securities referred to in Article 22, it is
incorrect. I have already pointed out, when dealing with the provisions of
Article 22, that this Article required the application of the principle that
securities for the performance of the sacred trust were to be embodied in
the Covenant, and that no provision in regard to compulsory jurisdiction
relative to the Mandates was embodied in the Covenant. If this Court were to
hold that the compulsory jurisdiction provided for in Article 7 of the
Mandate Declaration corresponds to the securities "for the performance of
this trust referred to in Article 22", it would be treating the words
"should be embodied in this Covenant" as meaningless.
The Opinion then proceeds:
"The first-mentioned group of obligations are defined in Article 22 of the
Covenant and in Articles 2 to 5 of the Mandate. The Union undertook the
general obligation to promote to the utmost the mate-[p 643]rial and moral
well-being and the social progress of the inhabitants. It assumed particular
obligations relating to slave trade, forced labour, traffic in arms and
ammunition, intoxicating spirits and beverages, military training and
establishments, as well as obligations relating to freedom of conscience and
free exercise of worship, including special obligations with regard to
missionaries.
These obligations represent the very essence of the sacred trust of
civilization. Their raison d'�tre and original object remain. Since their
fulfillment did not depend on the existence of the League of Nations, they
could not be brought to an end merely because this supervisory organ ceased
to exist. Nor could the right of the population to have the Territory
administered in accordance with these rules depend thereon."
It seems clear that the learned judges must have overlooked, just as Counsel
in the present matter apparently overlooked, the fact that Article 5 of the
Mandate Declaration contains, inter alia, the following provision:
"The Mandatory ... 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",
and that, unlike the other provisions of Articles 2 to 5, this provision
depended on the existence of the League for its fulfillment. In this respect
this provision should have been classified with Articles 6 and 7.
The first reason advanced by the Court for its finding that the supervisory
functions of the League with regard to mandated territories not placed under
the new Trusteeship System were transferred to the United Nations is the
following (page 136):
"The obligation incumbent upon a mandatory State to accept international
supervision and to submit reports is an important part of the Mandates
System. \%en 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. The
authors of the Charter had in mind the same necessity when they organized an
International Trusteeship System. The necessity for supervision continues to
exist despite the disappearance of the supervisory organ under the Mandates
System. It cannot be admitted that the obligation to submit to supervision
has disappeared merely because the supervisory organ had ceased to exist,
when the United Nations has another international organ performing similar,
though not identical, supervisory functions."
It is not clear on what principles the above reasoning is based. The Court
apparently equated the supervisory functions of the [p 644] Council of the
League to "international supervision", and similarly equated the supervisory
functions under the trusteeship system to "international supervision", then
found that the necessity for "international supervision" remained after
dissolution of the League and concluded that, therefore, the one
"international supervision� must be substituted for the other "international
supervision". This approach ignores the basic rule of construction that one
must have regard to the intention of the parties. It in any event ignores
the important difference between the League and the United Nations, the
historical facts relating to these institutions and, above dl, the plain
meaning of the provisions of the respective instruments.
There are no express provisions in the Covenant, the Mandate or the Charter
providing for the substitution of any organ of the United Nations for the
Council of the League. The Court's conclusion could therefore only have been
based on what it considered were the implied provisions of the Covenant
and/or the Mandate and/or the Charter. I have dealt in great detail with
these instruments and I think I have shown conclusively that no such implied
provisions are to be found in any of them.
I have already indicated that Article 22 of the Covenant and Article 6 of
the Mandate did not provide for "international supervision" ; they provided
for an annual report by the Mandatory in reference to the territory
committed to its charge, to be rendered to the Council of the League of
Nations, and for a permanent commission to receive and examine such reports,
and to advise the Council of the League on all matters relating to
observance of the Mandate. There is no justification for imputing to the
States concerned an intention of contracting on the basis that on the
dissolution of the League, the supervisory functions of the organs of the
League would be transferred to the organs of another international
organization performing similar functions but differently constituted.
Neither the words of Article 22 of the Covenant and Article 6 of the
Mandate, nor the circumstances under which these instruments were entered
into justify such an inference. In fact, it is clear that had such a term
been suggested, it would not have been agreed to by the Mandatories. The
subsequent conduct of the parties clearly reveals that no such intention
existed. To substitute an obligation to accept the supervision of an organ
of the United Nations for al! obligation to accept the supervision of the
Council of the League is to amend and increase the obligation undertaken by
the Respondent. It would amount to legislation and this Court has no
legislative powers.
It is correct to Say that the authors of the Charter had in mind supervision
of territories placed under trusteeship agreements by organs of the United
Nations, but it is also clear that the intention was that this supervision
would only take place after trusteeship agreements had been entered into.
The fact then that the Covenant [p 645] provided for supervision of Mandates
by the Council of the League and the Permanent Commission, and that the
Charter provides for supervision by the Trusteeship Council, the General
Assembly and the Security Council after mandated territories had been
brought under the International Trusteeship System can, however, not justify
an inference that therefore an obligation to submit to supervision of an
organ of the United Nations rests upon the mandatories after the supervisory
organs of the League had ceased to exist, even though no trusteeship
agreement has been entered into. As already indicated, neither the express
provisions of the Charter, nor the relevant circumstances justify an
inference that it was the intention to transfer the supervisory functions of
the organs of the League to the organs of the United Nations.
If Article 73 of the Charter does not apply to mandated territories, it may
be said that it would have been desirable that provision should have been
made for supervision of the Mandates by an organ of the United Nations after
the dissolution of the League, and until trusteeship agreements were entered
into, but this is no justification for reading an implied provision to this
effect into the Charter. It is the duty of this Court to interpret treaties,
not to revise them. To Say that in such a situation international law
refuses to acknowledge that no legal provision for international supervision
exists and that this Court is therefore entitled to nominate an organ of an
international organization as a substitute for the organ that has
disappeared, is to propound a new rule for which no legal basis exists.
The above conclusion of the Court is even more startling when it is borne in
mind that the Court found that this unexpressed term whereby organs of the
United Nations were substituted for the organs of the League was qualified
in several respects, viz., this supervision should not exceed that which
applied under the Mandate System, and should conform as far as possible to
the procedure followed by the Council of the League of Nations. The
difficulty experienced by the Members of this Court in 1955 and 1956 in
interpreting this implied provision is in itself a strong indication that
the requisite common intention to contract on the basis of such a term never
existed, and should not be inferred.
The above reason is followed by the following:
"These general considerations are confirmed by Article 80, paragraph 1, of
the Charter, as this clause has been interpreted above. It purports to
safeguard, not only the rights of States, but also the rights of the peoples
of mandated territories until Trusteeship Agreements are concluded. The
purpose must have been to provide a. real protection for those rights; but
no such rights of the peoples could be effectively safeguarded without
international supervision and a duty to render reports to a supervisory
organ." [p 646]
In another passage, when dealing with the question whether the group of
obligations contained in Articles 2 and 5 of the Mandate (which the Court
held did not depend for their fulfillment on the existence of the League)
came to an end on the dissolution of the League, the Court said at page 133:
"This view is confirmed by Article 80, paragraph 1, of the Charter, which
maintains the rights of States and peoples and the terms of existing
international instruments until the territories in question are placed under
the Trusteeship System. It is true that this provision only says that
nothing in Chapter XII shall be construed to alter the rights of States or
peoples or the terms of existing international instruments. But�as far as
mandated territories are concerned, to which paragraph 2 of this article
refers�this provision presupposes that the rights of States and peoples
shall not lapse automatically on the dissolution of the League of Nations.
It obviously was the intention to safeguard the rights of States and peoples
under all circumstances and in all respects, until each territory should be
placed under the Trusteeship System."
The true effect of the aforesaid statements of the Court seems to be that it
found that Article 80 (1) impliedly amended the provisions of the Mandates,
so that all their provisions should continue to apply, but the specific
nature of these amendments has not been indicated. However, as stated above,
Article 6 of the Mandate could only apply after the dissolution of the
League if one or other organ of the United Nations was substituted for the
organs of the League, and that Article 7 could only apply if ex-Membership
of the League or Membership of the United Nations was substituted for
Membership of the League. I shall assume that the Court intended to convey
that it thought that these amendments were impliedly brought about by
Article 80 (1).
There is clearly no justification for reading any such implied terms into
Article 80 (1). There is nothing in the Article to suggest that the parties
must have contracted on the basis of such amendments. On the contrary, the
suggested construction would be in direct conflict with the clear and
express injunction in the Article that it shall not be construed as altering
in any manner the terms of the Mandates.
Article 80 (1) clearly does not purport to "maintain" or "safeguard"
anything against something not contained in Chapter XII of the Charter.
A finding that Articles 6 and 7 ceased to apply on the dissolution of the
League does not in any way conflict with the provision of Article 80 (1).
The "rights" of the peoples of South West Africa did not include the
continued application of Articles 6 and 7 of the Mandate after the demise of
the organization on which these articles depended for their fulfillment. [p
647]
There can be no doubt that the parties to the Charter would have used
positive terms had they intended that the provisions of the Mandates would
be amended so that they could remain effective under all circumstances and
in all respects until each territory was placed under the Trusteeship
System; they would not have used language incapable of having this meaning.
If regard is had to the history of the Charter, there is even less
justification for the assumption by the Court that Article 80 (1)
presupposes that none of the provisions of the Mandates would cease to apply
on the dissolution of the League. The relevant facts, such as the travaux
pr�paratoires, including statements by Respondent's representative at the
San Francisco Conference, the subsequent conduct of the parties including
statements on behalf of the Respondent, the recommendations of the
Preparatory Commission, the resolutions of the United Nations, the
statements and resolutions at the dissolution of the League, the report of
the Palestine Commission and the numerous statements of Members of the
United Nations during the years 1946, 1947 and 1948 clearly reveal that no
such common intention existed.
In dealing with Article 80 (1) Sir Arnold McNair in his Separate Opinion
said, at p. 160:
"A second contention was based on the expression occurring in Article 80,
paragraph 1, of the Charter that 'nothing in this Chapter [XII] shall be
construed in or of itself to alter in any manner the rights whatsoever of
any States or peoples or the terms of existing international instruments to
which Members of the United Nations may respectively be parties'. But the
cause of the lapse of the supervision of the League and of Article 6 of the
Mandate is not anything contained in Chapter XII of the Charter but is the
dissolution of the League, so that it is difficult to see the relevance of
this Article."
The legal effect of Article 80 (1) is very aptly stated by Mr. Joseph Nisot
in an article on the Advisory Opinion of the International Court of Justice
on the International Status of South West Africa (South African Law
Journal), Vol. 68, Part III (August 19511, pp. 278-279:
"The only purpose of the Article is to prevent Chapter XII of the Charter
from being construed as in any manner affecting or altering the rights
whatsoever of States and peoples, as they stand pending the conclusion of
trusteeship agreements. Such rights draw their judicial life from the
instruments which created them; they remain valid in so far as the latter
are themselves still valid. If they are maintained, it is by virtue of those
instruments, not by virtue of Article 80, which confines itself to providing
that the rights of States and peoples�whatever they may be and to whatever
extent may subsist�are -left untouched by Chapter XII. [p 648]
These rights, the Court holds, continue to exist, since they have been
maintained by Article 80. But even supposing it did maintain anything,
Article 80 could only maintain whatever existed. It could neither resurrect
extinct nor create new ones.
Now, what, in actuality, were the rights derived by peoples from the Mandate
and from Article 22 of the Covenant? They were not rights to the benefit of
abstract supervision and control. They consisted of the right to have the
administration supervised and controlled by the Counci2 of the League of
Nations, and, in particular, the right to ensure that annual reports were
rendered by the mandatory Power to the Council of the League of Nations, as
it was, and the right to send petitions to the Secretariat of the League of
Nations. What has become of these rights? They have necessarily disappeared
as a result of the disappearance of the organs of the League (Council,
Permanent Mandates Commission, Secretariat).
The Court could not correctly conclude that such rights had been maintained
by Article 80, except by contending at the same time that, for the purposes
of the Mandate for South West Africa, the said organs had survived the
dissolution of the League.
(d) Being unable, and for good reasons, so to contend, the Court creates new
rights. To the Court, the right of peoples 'maintained' by Article 80 is
linked to the United Nations Organization. It is a right to supervision and
control by the United Nations, to which annual reports and petitions are, in
consequence, to be rendered and addressed. Lacking any other available
provision in the Charter, the Court founds such a conclusion on Article 80.
According to its thesis, it is because Article 80 'maintains' the rights of
peoples that these, though linked to the League, must now be deemed linked
to the United Nations! To infer this from a text worded as Article 80
amounts to assuming that, with respect to the Mandates System, the United
Nations stands as the legal successor of the League, an assumption
inconsistent with the discussions of San Francisco and with the very fact
that the Charter provides for the conclusion of Trusteeship Agreements."
Manley O. Hudson in the American Journal of International Law, Vol. 45,
1951, criticizes the Court's decision as follows:
"Article 80 (1) of the Charter seems to be the principal basis of the
Court's conclusion that the Union of South Africa must report to the General
Assembly. This Article provided that, until the conclusion of Trusteeship
Agreements, nothing in Chapter XII of the Charter should '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' (italics
supplied). The text clearly shows an intention that Chapter XII should not
effect any alteration of rights or terms. This intention was 'entirely
negative in character'. The provision served an obvious purpose when Chapter
XII of the Charter was drawn up: the Mandate was still in force at that
time: as the League of Nations had not then been dissolved, any alteration
of the existing situation was a matter for its consideration. Article 80 (1)
was a precautionary provision designed to negative the accomplishment of any
change in the existing situation by reason of Chapter XII 'in or of itself'.
It is not surprising that [p 649] Judge McNair found it 'difficult to see
the relevance of this Article'.
Yet the Court gave an affirmative effect to Article 80 (1), turning it into
a positive 'safeguard' for maintaining the rights of States and the rights
of the peoples of the Mandated Territory. This is the more notable because
at a later stage the Court stressed the 'entirely negative' character of
Article So (z), declining to Say that the latter imposed a positive
obligation on the Mandatory even to negotiate with a view to the conclusion
of a Trusteeship -Agreement.
No attention was paid by the Court to the fact that certain States, which as
Members of the former League of Nations may have 'rights' under Article 22
of the Covenant and under the Mandate itself, had no responsibility for the
Charter and have never become Members of the United Nations. For example,
Finland, Ireland and Portugal, which were represented at the final session
of the Assembly of the League of Nations in 1946, are in this category. If
their rights are 'maintained' by Article 80 (1) of the Charter, they have no
voice in the supervision to be exercised by the General Assembly.''
George Schwarzenberger in International Law, 3rd edition, Vol. 1, p. 101,
commented inter alia as follows:
"... the World Court was faced with the issue of whether the United Nations
had become responsible for the discharge of the supervisory function which
the League had formerly exercised in relation to the only still surviving
Mandate. In support of a positive answer, the Court could neither rely on
any general principle of succession between international persons nor any
relevant transaction between the two collective systems. Nonetheless, on the
basis of a threefold argument, it arrived at this conclusion.
The Court pointed out that the 'raison d'�tre and original object' of the
international obligations entered into by the Union of South Africa had not
changed. All that had happened was that the former supervisory organ had
disappeared. The United Nations, however, had at its disposal 'another
international organ performing similar, though not identical supervisory
functions'. The Court strengthened this reasoning by its interpretation of
the declared intentions of the Mandatories, including the Union of South
.Africa, to continue the administration of the mandates in accordance with
the mandates treaties until other arrangements should have been made between
the United Nations and the Mandatories. The Resolution of April 18th, 1946,
of the League Assembly which took note of these intentions of the
Mandatories presupposed that 'the supervisory functions exercised by the
League would be taken over by the United Nations'. The still missing link
with the United Nations was provided by the Court's interpretation of
Article So of the Charter of the United Nations. It was admitted in the
majority Opinion that 'this provision only says that nothing in Chapter XII
shall be construed to alter the rights of States or peoples or the terms of
existing inter-[p 650]national instruments'. Still, with the assistance of a
somewhat debatable presupposition and 'obvious' intentions, the last gap was
bridged. It is not surprising that Judge McNair should have found it
'difficult to see the relevance of this Article'.
Having filled the legal void which separated the supervisory functions of
the League of Nations from those of the United Nations, the Court proceeded
with its self-imposed task of 'judicial legislation'."
The third reason advanced by the Court for its finding that the functions of
the organs of the League may now be exercised by the organs of the United
Nations is as follows:
"The Assembly of the League of Nations, in its Resolution of April 18th,
1946, gave expression to' a corresponding view. It recognized, as mentioned
above, that the League's functions with regard to the Mandated Territories
would come to an end, but noted 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. It further took note of the
intentions of the Mandatory States to continue to administer the territories
in accordance with the obligations contained in the Mandates until other
arrangements should be agreed upon between the United Nations and the
Mandatory Powers. This Resolution presupposes that the supervisory functions
exercised by the League would be taken over by the United Nations."
This Resolution of the Assembly of the League of 18 April 1946 has already
been fully dealt with. It will be recalled that the United Nations
Resolution of 12 February 1946 relating to the functions and powers of the
League under treaties, international conventions, agreements or other
instruments of a political character were to the effect that the United
Nations would examine any request from the parties, and that the United
Nations should assume the exercise of functions or powers entrusted to the
League of Nations. The League Resolution remained silent in regard to this
particular Resolution, and apart from the one dealing specifically with the
Mandates, it confined its resolutions to functions, powers and activities of
a non-political character. From this one must infer that inasmuch as the
United Nations in terms of its resolutions had resolved that it would
examine each treaty separately when requested to do so by the parties, the
League Assembly considered that there was no further function for it to
perform. The Assembly of the League was aware of the resolutions of the
United Nations and if, despite these resolutions, it intended to transfer
the League's function relative to the Mandates to the United Nations, it
would have passed a resolution to that effect. The draft resolution of
China, it will be recalled, expressly drew the League's attention to the
fact that the supervisory function of the organs of the League were not
being transferred to the United Nations, and proposed that the League's
function as supervisory organ for [p 651] mandated territories should be
transferred to the United Nations until the Trusteeship Council should be
constituted. This was in direct conflict with the Resolution of the United
Nations and would in all probability not have had the unanimous approval
that a resolution of the League required. The fact that it was dropped and
another resolution, omitting the aforesaid provision, adopted, proves that
the League of Nations did not intend to transfer its functions as the
supervisory organ for mandated territories to the United Nations. See in
this regard Hogg's Treaty Interpretation, Minnesota Law Review, 1959, page
43.
I have already dealt with the statements of the Mandatories and the
Resolution of the Assembly of the League at its dissolution. They, too,
contain no evidence of an assumption that the supervisory function of the
League would be taken over by the United Nations. On the contrary, if regard
is had to all the facts, there is no justification whatsoever for the
assumption in the majority Opinion in regard to the "presupposition" that
the supervisory function of the League would be taken over by the United
Nations. The Court was obviously unaware of all the relevant facts relating
to the Resolution of the League Assembly, e.g. the original resolution of
the representative of China. It was certainly unaware of its significance as
no mention is made thereof in the Judgment. Had the Court been aware of all
the facts and their true significance, it would not, and could not have
arrived at the conclusion it did.
In any event the League resolution is not a treaty or convention, and even
if it is, it ha not been registered in terms of Article 102 of the Charter,
and cannot therefore be invoked in this Court.
Nisot, op. cit., p. 280, criticizes the Court as follows
"(e) However, the Court also invokes, as supporting its conclusions, the
Resolution of 18th April 1946 whereby the Assembly of the League of Nations
'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'.
But one fails to see how this statement can provide any support for a
suggestion that it was the Assembly's opinion that a Mandatory Power, though
not bound by a Trusteeship Agreement, was under an obligation to submit to
supervision and control by the United Nations.
This was no more the opinion of the Assembly of the League of Nations than
that of the General Assembly of the United Nations, which, by its Resolution
of 9th February 1946, urged the conclusion of trusteeship agreements,
implying that no implementation of the [p 652] principles of the Trusteeship
System�therefore, no supervision or control�was possible in the absence of
such agreements."
Hall, in Mandates, Dependencies and Trusteeship, p. 273, commented as
follows in regard to the League Assembly Resolution of 18 April 1946:
"The significance of this Resolution of the League Assembly becomes clearer
when it is realized that for many months the most elaborate discussions had
been taking place between the governments as to the exact procedure to be
adopted in making the transition between the League and the United Nations.
It was the function 'of the Preparatory Commission and the committees
succeeding it to make recommendations on the transfer of functions,
activities, and assets of the League. Ail the assets of the-League had been
carefully tabulated. All its rights and obligations that could be bequeathed
to the United Nations and which the latter desired to take over were
provided for in agreements that were made. But in the case of mandates, the
League died without a testament."
Manley O. Hudson commented as follows in the Twenty-Ninth Year of the World
Court, American Journal of International Law, vol. 45, 1951, p. 13:
"To support its additional conclusion that the Union of South Africa is
obliged to submit to the supervision of, and to render annual reports to,
the United Nations, the Court relied upon a resolution adopted by the final
Assembly of the League of Nations on 18 April 1946, which was said to
presuppose 'that the supervisory functions ' exercised by the League would
be taken over by the United Nations'. This is hardly borne out by the text
of the Resolution, however."
The final reason advanced in the majority Opinion and the Court's conclusion
are as follows:
"The competence of the General Assembly of the United Nations to exercise
such supervision and to receive and examine reports is derived from the
provisions of Article 10 of the Charter, which authorizes the General
Assembly to discuss any questions or any matters within the scope of the
Charter and to make recommendations on these questions or matters to the
Members of the United Nations. This competence was in fact exercised by the
General Assembly in Resolution 141 (II) of November 1st, 1947, and in
Resolution 227 (III) of November 26th, 1948, confirmed by Resolution 337
(IV) of December 6th, 1949.
For the above reasons, the Court has arrived at the conclusion that the
General Assembly of the United Nations is legally qualified to exercise the
supervisory functions previously exercised by the League of Nations with
regard to the administration of the Territory, and that the Union of South
Africa is under an obligation to submit to supervision and control of the
General Assembly and to render annual reports to it."
This final reason can hardly be termed the reason for the above conclusion.
It will be observed that Article 10 only applies if a [p 653] question or
matter is within the scope of the Charter or relates to the power and
functions of any organ provided for in the Charter, and the General Assembly
is merely authorized to discuss and make recommendations on such questions
or matters. The General Assembly undoubtedly has the right to discuss a
report that is made to it, but its right to discuss a report which is made
to it has no bearing on the question whether there is a legal obligation to
report to it. If the legal effect of Article 80 (1) of the Charter is that
the Mandatory's obligations to make annual reports to the Council of the
League relating to the administration of. the mandated territories were to
be converted into obligations to furnish these reports to an organ of the
United Nations after the dissolution of the League and until trusteeship
agreements were entered into, discussions and recommendations in regard
thereto would be within the powers of the General Assembly in terms of
Article 10.
Manley O. Hudson, op. cit., p. 14, remarks as follows:
"The Court seems to have placed emphasis on the competence of the General
Assembly to exercise supervision and to receive and examine reports. Such
competence can hardly be doubted. Yet it does not follow from the conclusion
that the General Assembly 'is legally qualified to exercise the supervisory
functions previously exercised by the League of Nations', that the Union of
South Africa is under an obligation to submit to supervision and control by
the General Assembly, or that it is obligated to render annual reports to
the General Assembly."
In dealing with Article 7 of the Mandate, the aforesaid majority Opinion
states:
"According to Article 7 of the Mandate, disputes between the Mandatory State
and another Member of the League of Nations relating to the interpretation
or the application of the provisions of the Mandate, if not settled by
negotiation, should be submitted to the Permanent Court of International
Justice. 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."
No other reasons were stated for this conclusion. It will be observed that
the first, third (the Resolution of the League at its dissolution) and
fourth reasons advanced in the majority Opinion for the conclusion that the
supervisory functions of the League were transferred to the United Nations,
are not mentioned in the above paragraph. The only articles referred to are
Article 80 (1) of the Charter of the United Nations, and Article 37 of the
Statute of the International Court of Justice. [p 654]
As already stated, if Article 7 of the Mandate remained unamended, it can no
longer apply as it depended for its fulfillment on the existence of the
League. As there is no League in existence there can be no Members of the
League, and accordingly no State has locus standi to bring proceedings under
the provisions of Article 7 in its original form. If Article 7 still
applies, it can only apply in an amended form, that is, if ex-members of the
League or Members of the United Nations have been substituted for Members of
the League, and if this Court has been substituted for the Permanent Court
of International Justice. I shall assume that the Court meant that this was
brought about by. the provisions of Article 37 of its Statute and Article 80
(1) of the Charter.
I have already pointed out that the legal effect of Article 37 of the
Statute of this Court is that in treaties or conventions in force, this
Court is substituted for the former in the place of inter alia the Permanent
Court of International Justice. It does not purport to amend the
qualifications prescribed in any treaty or convention and it does not, and
cannot, have the effect of substituting ex-Membership of the League of
Nations or Membership of the United Nations, for Membership of the League in
Article 7 of the Mandate. The Court must therefore have relied exclusively
on the provision of Article 80 (1) for its view that Article 7 was amended
by substituting ex-Membership of the League or Membership of the United
Nations for Membership of the League.
I have already dealt with Article 80 (1) of the Charter, and I have shown
that it does not and was not intended to alter the provisions of any
mandates. There was not the slightest suggestion at any time, either when
Article 80 was drafted, or therefater that ex-Members of the League or
Members of the United Nations were substituted in Article 7.
Judge Read in his separate Opinion at page 169 said:
"The legal rights and interests of Members of the League in respect of the
Mandate, survived with one important exception� in the case of Members that
did not become parties to the Statute of this Court, their right to implead
the Union before the Permanent Court lapsed."
It is not clear on what reasoning the learned Judge arrived at this
conclusion. He apparently argued that inasmuch as the Mandate for South West
Africa was still in existence, the rights of States which were Members of
the League at its dissolution must still exist. It is not possible to
reconcile this reasoning with the Judge's conclusion that inasmuch as the
League had come to an end Respondent's obligations in respect of reporting
and accountability had come to an end. He does not appear to have
appreciated [p 655] that just as Article 6 of the Mandate depended for its
fulfillment on the existence of the League, so Article 7 depended for its
fulfillment on the existence of Members of the League. Presumably his
reasons were the same as those of Judge McNair, with which I shall deal
presently.
In his separate Opinion Sir Arnold McNair said:
"The judicial supervision has been expressly preserved by means of Article
37 of the Statute of the International Court of Justice adopted in 1945 :
'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.'
This article effected a succession by the International Court to the
compulsory jurisdiction conferred upon the Permanent Court by Article 7 of
the Mandate; for there can be no doubt that the Mandate, which embodies
international obligations, belongs to the category of treaty or convention;
in the judgment of the Permanent Court in the Mavrommatis Palestine
Concessions (Jurisdiction) case, Series A, No. 2, p. 35, the Palestine
Mandate was referred to as an 'international agreement'; and I have
endeavoured to show that the agreement between the Mandatory and other
Members of the League embodied in the Mandate is still 'in force'. The
expression 'Member of the League of Nations' is descriptive, in my opinion,
not conditional, and does not mean 'so long as the League exists and they
are Members of it'; their interest in the performance of the obligations of
the Mandate did not accrue to them merely from membership of the League, as
an examination of the content of the Mandate makes clear. Moreover, the
Statute of the International Court empowers it to call from the parties for
'any document' or 'any explanations' (Article 49); and to entrust any
'individual, body, bureau, commission or other organization that it may
select, with the task of carrying out an enquiry...' (Article 50). Article
94 of the Charter empowers the Security Council of the United Nations to
'make recommendations or decide upon measures to be taken to give effect to
the judgment' of the Court, in the event of a party to a case failing to
carry out a judgment of the Court. In addition, the General Assembly or the
Security Council of the United Nations may request the Court to give an
advisory opinion on any legal question (Article 96 of the Charter)."
I must confess that I do not understand the significance in the inquiry of
the articles of the Statute of this Court and the Charter referred to in the
sentence commencing: "Moreover the Statute of the International Court..."
The learned Judge came to the conclusion that the word Member of the League
of Nations in Article 7 is descriptive, and that it did not mean "so long as
the League exists and they are Members [p 656] of it". I have dealt fully
with the provisions of the Mandate and the Covenant and I have indicated
that the phrase "Member of the League of Nations" cannot mean "ex-member of
the League of Nations". "Member of the League" must clearly in the absence
of any amendment of Article 7 be given the same meaning today it had when
the Mandate first came into existence. Membership of the League was
necessary before a State could obtain locus standi to bring proceedings
under Article 7, and similarly continued Membership was necessary to retain
such locus standi. The clear and unambiguous meaning of the words "Member of
the League" is therefore a Member of the League at the time when the
particular provisions of the Article are sought to be applied. It was
clearly never intended that the rights conferred on Members of the League as
Members of the League would continue to be held after Membership had ceased.
The words "Member of the League" appear in all the Mandates and when
construed in their context cannot include States which were but are no
longer Members of the League.
The meaning of the words "Member of the League" in Article 7 is so clear
that the task of interpretation can hardly be said to arise. It is not
allowed to interpret that which has no need of interpretation.
The learned Judge further stated that the interest of Members of the League
in the performance of the obligations of the Mandate "did not accrue to them
merely from Membership of the League, as an examination of the content of
the Mandate makes clear". Be this as it may, it is clear that the right to
bring proceedings in the Permanent Court of International Justice accrued to
Members of the League entirely from such Membership. This right flows from
Article 7 of the Mandate and from nothing else. If Article 7 were repealed
no such right would have remained. If the Article never existed, the right
would never have existed.
It is accordingly clear that even if Members of the League had an interest
in the performance of the Mandate which did not accrue from their Membership
such interest could not provide any State with locus standi to bring
proceedings in the Permanent Court of International Justice where such locus
standi was not conferred by Article 7 of the Mandate.
Manley O. Hudson criticizes Judge McNair's opinion as follows in the
American Journal of International Law, Vol. 45 (1951), p. 16:
"Judge McNair expressed the view that this expression is 'descriptive, not
conditional', and that it does not mean so long as the [p 657] League exists
and thy are Members of it. Yet what States does it describe? Does the phrase
mean another State which was a Member of the League of Nations on December
17, 1920? If so, Brazil would be included, though it withdrew from the
League of Nations in 1923, and Egypt and Mexico would be excluded because
they were admitted to the League of Nations at later dates. Does the phrase
now mean another State which was a Member of the League just prior to its
dissolution? Judge McNair seems to have been willing to give it this import.
Yet some States in this category�for example, Portugal, whose territory
borders on South West Africa�may not now be 'States entitled to appear
before the Court'. In any event, the meaning is so imprecise that perhaps
the Court might have shown more hesitance in declaring the replacement to be
made in the second paragraph of Article 7 of the Mandate."
The question now arises to what extent the 1950 Advisory Opinion of this
Court should be considered binding in these proceedings. It is common cause
that an Opinion has not the authority of res judicata nor does the stare
decisis rule apply. I have already referred to the provisions of Article 38
and Article 59 of the Statute of this Court, the effect of which is that a
decision of this Court is only binding on the parties thereto and that its
decisions must be regarded as subsidiary means for the determining of des of
law. In its Opinion of 30 March 1950 (Interpretation of Peace Treaties 1950,
I.C.J., page 71), this Court held that "The Court's reply is only of an
advisory character, it has no binding force", and "The Court's Opinion is
given not to States but to the organ which is entitled to request it". This
Court will obviously not readily depart from a prior ruling especially if
the subsequent proceedings involve substantially the same legal issues. It
must, in view of its high mission, attribute to its Opinions legal value and
moral authority, but when in a subsequent proceeding it becomes clear that
an Opinion previously given is wrong, this Court, however reluctant it may
be to do so, has no option but to Say so.
The issue with which this Court was primarily concerned in 1950 was whether
the Mandate was still in force; the question whether Article 7 still applied
was not formulated as a specific question for the Court's consideration and
was merely an incidental issue. It apparently received very little
attention. Dr. Stein, who appeared on behalf of the Respondent, advanced the
contention that by reason of the dissolution of the League there were no
longer any States which could invoke Article 7 of the Mandate but he
apparently regarded this contention as a legal proposition which did not
require further argument. The Majority Opinion disposed thereof in one
single passage, the meaning of which is obscure. In any event, it has been
shown that the two Articles, that is, Article 37 of the Statute of this
Court and Article 80 (1) of the Charter, relied upon by the Court, cannot
support its conclusion. It is abundantly [p 658] clear that the Court was
either unaware of all the facts or failed to appreciate their true
significance. A full consideration of all the material facts leads to the
inescapable conclusion that the aforesaid statement in the 1950 Opinion was
erroneous. In these circumstances there can be no doubt that it is now this
Court's duty to rectify and not to perpetuate its error.
I accordingly come to the conclusion that Article 7 of the Mandate cannot be
invoked as there are no longer Members of the League to do so. The
Respondent has not been a party to any agreement in terms whereof it agreed
that after the dissolution of the League ex-Members of the League or Members
of the United Nations would be substituted for Member of the League in
Article 7 of the Mandate Declaration. It follows that the Applicants have no
locus standi and this Court no jurisdiction in the present proceedings.
***
It is clear that a finding in favour of the Respondent on any of the issues
raised in the Objections necessarily means that this Court has no
jurisdiction to deal with the present matter, but in view of the importance
of this matter I shall briefly state my views in regard to some aspects of
the remaining issues. At the outset I wish to state that I am in full
agreement with the Opinions of President Winiarski, Judge Sir Percy Spender
and Judge Sir Gerald Fitzmaurice and Judge Morelli.
The issues stated in the Applications in effect relate exclusively to the
tutelage obligations of the Respondent concerning the peoples of South West
Africa and the Applicants do not claim that their own interests or that of
their citizens are affected. It is clear that the Applicants' only motive
for bringing these proceedings is their humanitarian concern for the peoples
of the aforesaid territory.
This raises the question whether the Respondent has agreed to ~he Applicants
submitting to this Court disagreements relating exclusively to the
interpretation or application of the Respondent's tutelage obligations and
not affecting the Applicants' legal rights or the legal rights of their
citizens.
The compromissory clause in Article 7 provides for reference of any
"dispute" relating to the interpretation or application of the provisions of
the Mandate to the Permanent Court of International Justice. The enquiry is
whether what is sought to be referred to this Court is a "dispute" within
the meaning of this clause.
The first question that arises is whether the word "dispute" in Article 7
means "disagreement embracing any difference of opinion" or whether it means
"a difference concerning the legal rights of the parties". Both meanings are
possible and one must now invoke the rules of construction and determine, in
the light of such evidence [p 659] of intention as is available, which of
these meanings should be preferred. The reasons for preferring the latter
meaning are, in my opinion, unanswerable.
If the word "dispute" is given the meaning of "disagreement embracing any
difference of opinion" it leads to absurd results. It would mean that it was
intended that a Member State could bring academic differences of opinion to
this Court or differences of opinion relating solely to the interests of
another Member of the League or even a non-Member.
It will be recalled that the draft Mandate Declaration submitted by the
British Government to the Council of the League contained a provision which
provided for disputes between Members of the League relating to the
interpretation or application of the provisions of the Mandate to be
submitted to the Permanent Court of International Justice. The reason for
changing the wording to the present form was that Members of the League
could not be bound without their consent. There was no intention to change
the meaning of the word "dispute". If the wording of the original draft was
retained and if the word "dispute" is given the meaning of any difference of
opinion it would have meant that one Member of the League could have brought
proceedings against another Member of the League relating to a difference of
opinion as to the rights of a third State.
A study of the provisions of Article 36 of the Statute of the Permanent
Court of International Justice leaves no doubt that it was intended that the
Permanent Court of International Justice should, apart from its duty to give
Opinions, be concerned with legal disputes only. It seems to me quite clear
that had any State referred a dispute to the Permanent Court of
International Justice for adjudication in respect of a matter which did not
concern the rights of such State or its citizens the Court would have
refused to deal with the matter. It would have said that in terms of its own
constitution it was not competent to deal with differences of opinion or
with conflicts of views unrelated to the legal rights of the party
requesting adjudication.
The generally accepted meaning of the word "dispute" in compromissory
clauses is a difference between States concerning their legal rights.
It is clear from the Judgment of the majority, as well as from the minority
Opinions in the Mavrommatis case, P.C.I.J., Series A, No. 2, that a legal
right was regarded as necessary for locus standi on the part of the
Applicant. If the word "dispute". was considered to embrace all
disagreements irrespective of any legal right or interest on the part of the
Member of the League seeking to invoke the Article there would have been no
need for enquiring into the legal rights of the Greek Government.
In my view, there can be no doubt that the word "dispute" should be
interpreted as meaning a disagreement between the Mandatory[p 660] and
another Member of the League concerning the legal rights of such Member.
The next enquiry is whether the present proceedings relate to a disagreement
concerning the Applicants' legal rights.
Applicants contend that they possess the legal right to demand compliance by
the Respondent of all its tutelage obligations, irrespective of whether such
obligations affect their rights or the rights of their citizens. This
contention requires a careful examination of the provisions of Article 22 of
the Covenant of the League of Nations and the provisions of the Mandate
Declaration.
It will be observed that paragraph 2 of Article 22 of the Covenant provides
that the tutelage of the peoples of the territory concerned should be
exercised by the Mandatory on behalf of the League. It does not provide that
the tutelage should be exercised on behalf of the League and its individual
Members. The Mandatory is required by paragraph 7 of Article 22, to report
to the Council of the League. There is no provision requiring the Mandatory
to account to any individual Member of the League. Paragraph I of Article 22
provides that securities for the performance of the sacred trust of
civilization are to be embodied in the Covenant itself. These securities do
not include supervision by the individual Members of the League.
Article 22 of the Covenant of the League requires the Mandatory to exercise
the tutelage of the peoples concerned on behalf of the League. It is clear
that Article 22 conferred no general rights on individual States to
supervise the Mandatories in any way other than through their activities as
Members of the League. The fact that Members of the League were concerned
about the well-being and development of these peoples does not mean that it
was intended that each individual State should have the right to demand from
the Mandatory compliance with the tutelage obligations. The fact that
Members of the League were entitled to participate in the discussions of the
League did not confer legal rights on each Member of the League to supervise
the Mandates. The common humanitarian concern of Member States for the
well-being and development of these peoples led to the creation of a
super\7isory body and this supervisory body was clothed with the general
right to claim compliance by the Mandatory of its tutelage obligations.
It is clear that the intention was that all the provisions relating to the
Mandatories should be embodied in Article 22 Save that under the provisions
of paragraph 8 of Article 22 "the degree of authority, control or
administration to be exercised by the Mandatory" was to be agreed upon by
the Members of the League and if they failed to do so it was to be
explicitly defined by the Council of the League. There, accordingly, was not
only no provision to the effect that individual Member States of the League
would have the right to demand compliance by the Mandatory of its sacred
trust [p 661] obligations but no provision was made for any organ of the
League, or any other body, adding a provision to this effect. Article 22 of
the Covenant of the League could only be amended by the Members of the
League whose representatives composed the Council and by a majority of the
Assembly in terms of Article 26 of the Covenant. The Council of the League
could not do so on its own. The Council of the League could, therefore, only
define the degree of control, authority or administration to be exercised by
the Mandatory but could not amend Article 22. The authority to define the
degree of control, authority or administration did not include authority. to
add to the securities set out in Article 22, not only because its authority
under paragraph 8 did not include such a power, but also because Article 22
requires in terms the application of the principle that securities for the
performance of the trust should be embodied in the Covenant.
The Council of the League was not authorized to add to, or to Vary, the
securities set out in Article 22. Its sole function was to define the degree
of authority, control or administration to be exercised by the Mandatory. It
had no authority to provide for the control to be exercised over the
Mandatory.
If it is correct to Say the Council of the League could not amend Article 22
and if it is correct to Say that the Council of the League could not add to
the securities for the performance of the sacred trust set out in Article
22, it follows that if Article 7 of the Mandate Declaration purported to
have this effect it cannot be valid. If Article 7 means that each Member of
the League of Nations was. given the legal right to demand compliance with
the sacred trust obligations of the Mandatory, it means that the Council not
only exceeded its authority under Article 22 (8) but that it purported to
amend Article 22. Article 7 should be given a meaning which renders it valid
rather than one that renders it invalid. It would be valid if it is
construed as a provision that Members of the League could refer
disagreements relating to their own rights to the Permanent Court of
International Justice.
In addition to the provisions exclusively designed to promote the well-being
and development of the peoples of the territories concerned, Article 22 also
contained provisions designed primarily for the benefit of Member States,
e.g., the so-called open-door provisions for trade and commerce. Even in
regard to these obligations Members of the League were clearly given no
general right to demand compliance therewith. Each State could only demand
compliance in so far as its interests, or the interests of its citizens,
were concerned. If, for example, State A was given greater opportunities of
trade by a Mandatory than any other State, State A could not institute
proceedings under the provisions of the compromissory clause to claim that
its opportunity should be less or that the opportunities of another State
should be more. [p 662]
It seems clear that the compromissory clause in Article 7 was not designed
to create legal obligations other than the obligation on the part of the
Respondent to submit to the jurisdiction of the Permanent Court of
International Justice in respect of any proceedings brought by Members of
the League to enforce their legal rights under the Mandates. In other words,
Article 7 merely provides for the adjudication of disagreements in which the
Plaintiff State has a legal right, but it does not create any other legal
rights. The legal rights of the Member States must be gathered from Article
22 of the Covenant of the League and the Mandate as a whole. I have already
indicated that the supervisory functions with regard to the Mandates were in
express terms reserved for the Council of the League, and that there could
not have been any intention that in addition each and every Member of the
League would stand in the position of custodian of the rights of the peoples
of the territories concerned.
My conclusion, accordingly, is that the Respondent has not agreed to the
Applicants instituting any action against it on the interpretation or
application of the provisions of the Mandate where the Applicants' own
rights, or the rights of their citizens, are not in issue, and this affords
an additional reason for holding that. this Court has no jurisdiction to
adjudicate upon the present proceedings.
(Signed) J. T. van Wyk. |
|
