INTERNATIONAL COURT OF JUSTICE
INTERNATIONAL STATUS OF SOUTH WEST AFRICA
ADVISORY OPINION
BEFORE: President: Basdevant;
Vice-President: Guerrero;
Judges: Alvarez, Hackworth, Winiarski, Zoricic, De Visscher, Sir Arnold McNair,
KI-aestad, Badawi Pasha, Krylov, Read, Hsu Mo, Azevedo
PermaLink http://www.worldcourts.com/icj/eng/decisions/1950.07.11_status_of_SW_Africa.h
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International Status of South West Africa, Advisory Opinion, 1950 I.C.J. 128 (July
Citation:
11)
[p128]
The Court,
composed as above,
gives the foliowing Advisory Opinion:
On, December 6th, 1949, the General Assembly of the United Nations adopted the following
resolution :
'' The General Assembly,
Recalling its previous resolutions 65 (1) of 14 December 1946, 141 (II) of I November 1947
and 227 (III) of 26 November 1948 concerning the Territory of South-West Africa,
Considering that it is desirable that the General Assembly, for its further consideration of the
question, should obtain an advisory opinion on its legal aspects,
1. Decides to submit the following questions to the International Court of Justice with a
request for an advisory opinion which shall be transmitted to the General Assembly before its
fifth regular session, if possible:
'What is the international status of the Territory of South-West Africa and what are the
international obligations of the Union of South Africa arising therefrom, in particular:
(a) Does the Union of South Africa continue to have international obligations under the
Mandate for South-West Africa and, if so, what are those obligations?
(b) Are the provisions of Chapter XII of the Charter applicable and, if so, in what manner, to
the Territory of South-West Africa?
(c) Has the Union of South Africa the competence to modify the international status of the
Territory of South-West Africa, or, in the event of a negative reply, where does competence
rest to determine and modify the international status of the Territory?'
2. Requests the Secretary-General to transmit the present resolution to the International Court
of Justice, in accordance with Article 65 of the Statute of the Court, accompanied by all
documents likely to throw light upon the question.
The Secretary-General shall include among these documents the text of Article 22 of the
Covenant of the League of Nations; the text of the Mandate for German South-West Africa,
confirmed by the Council of the League on 17 December 1920; relevant documentation
concerning the objectives and the functions of the Mandates System; the text of the resolution
adopted by the League of Nations on the question of Mandates on 18 April 1946; the text of
Articles 77 and 80 of the Charter and data on the discussion of these articles in the San
Francisco Conference and the General Assembly ; the report of the Fourth Committee and the
official records, including the annexes, of the consideration of the [p130]question of South-
West Africa at the fourth session of the General Assembly."
By letter of December 19th, 1949, filed in the Registry on December 27th, the Secretary-
General of the United Nations transmitted to the Court a certified true copy of the General
Assembly's resolution.
On December 3oth, 1949, in accordance with Article 66, paragraph 1, of the Statute, the
Registrar gave notice of the request to all States entitled to appear before the Court. In
addition, as the question submitted to the Court for advisory opinion by the General Assembly
concerned Chapter XII of the Charter, the Registrar, on the same date, informed all Members
of the United Nations, by means of a special and direct communication as provided in Article
66, paragraph 2, of the Statute that the Court was prepared to receive from them written
statements on the question. By an order of the same date the President, the Court not being in
session, appointed Monday, March 20th, 1950, as the date of expiry of the time-limit for the
submission of written statements, and reserved the rest of the procedure for further decision.
Written statements were received within the prescribed time-limit from the following States:
Egypt, Union of South Africa, the United States of America, India and Poland.
On March 7th, 1950, the Board of Directors of the International League of the Rights of Man
sent a communication to the Court asking permission to submit written an8 oral statements on
the question. On March 16th, the Court decided that it would receive from this organization a
written statement to be filed before April 10th and confined to the legal questions which had
been submitted to the Court. On the same day, the League was notified accordingly, but it did
not send any communication within the time-limit prescribed.
By letter of January 23rd, 1950, the Secretary-General of the United Nations announced that
he had designated Dr. I. Kerno, Assistant Secretary-General in charge of the Legal
Department, as his representative before the Court, and that Dr. Kerno was authorized to
submit any written or oral statements likely to furnish information to the Court on the
question.
By letters dated March 1st and March 20th, 1950, filed in the Registry on March 8th and April
tth, respectively, the Secretary-General transmitted to the Registry the documents which he
was instructed to submit according to the resolution of the General Assembly and Article 65 of
the Statute. All these documents are enumerated in the list annexed to this Opinion.
By telegrams dated March 15th and April 29th, the Government of the Philippines announced
its intention to present an oral statement. The Government of the Union of South Africa
announced the same intention by letter of March 28th. [p131]
At public sittings held from May 16th to May 23rd, 1950, the Court heard oral statements
submitted :
on behalf of the Secretary-General of the United Nations by Dr. Ivan Kerno, Assistant
Secretary-General in charge of the Legal Department;
on behalf of the Government of the Philippines by Judge José D. Ingles, member of the
Philippine Permanent Delegation to the United Nations;
on behalf of the Government of the Union of South Africa by Dr. L. Steyn, K.C., Senior Legal
Adviser of the Ministry of Justice of the South-African Government.
***
The request for an opinion begins with a general question as follows :
"What is the international status of the Territory of South-West Africa and what are the
international obligations of the Union of South Africa arising therefrom?"
The Court is of opinion that an examination of the three particular questions submitted to it
will furnish a sufficient answer to this general question and that it is not neccessary to consider
the general question separately. It will therefore begin at once with an examination of the
particular questions.
Question (a) :
"Does the Union of South Africa continue to have international obligations under the Mandate
for South-West Africa and, if so, what are those obligations ?"
The Territory of South-West-Africa was one of the German overseas possessions in respect of
which Germany, by Article 119 of the Treaty of Versailles, renounced all her rights and titles
in favour of the Principal Allied and Associated Powers. When a decision was to be taken with
regard to the future of these possessions as well as of other territories which, as a consequence
of the war of 1914-1918, had ceased to be under the sovereignty of the States which formerly
governed them, and which were inhabited by peoples not yet able to assume a full measure of
self-government, two principles were considered to be of paramount importance : the principle
of non-annexation and the principle that the well-being and development of such peoples form
"a sacred trust of civilization".
With a view to giving practical effect to these principles, an international régime, the
Mandates System, was created by Article 22 of the Covenant of the League of Nations. A
"tutelage" was to be established for these peoples, and this tutelage was to be entrusted to
certain advanced nations and exercised by them "as mandatories on behalf of the
League".[p132]
Accordingly, the Principal Allied and Associated Powers agreed that a Mandate for the
Territory of South-West Africa should be conferred upon His Britannic Majesty to be
exercised on his behalf by the Government of the Union of South Africa and proposed the
terms of this Mandate. His Britannic Majesty, for and on behalf of the Government of the
Union of South Africa, agreed to accept the Mandate and undertook to exercise it on behalf of
the League of Nations in accordance with the proposed terms. On December 17th, 1920, the
Council of the League of Nations, confirming the Mandate, defined its terms.
In accordance with these terms, the Union of South Africa (the "Mandatory") was to have full
power of administration and legislation over the Territory as an integral portion of the Union
and could apply the laws of the Union to the Territory subject to such local modifications as
circumstances might require. On the other hand, the Mandatory was to observe a number of
obligations, and the Council of the League was to supervise the administration and see to it
that these obligations were fulfilled.
The terms of this Mandate, as well as the provisions of Article 22 of the Covenant and the
principles embodied therein, show that the creation of this new international institution did not
involve any cession of territory or transfer of sovereignty to the Union of South Africa. The
Union Government was to exercise an international function of administration on behalf of the
League, with the object of promoting the well-being and development of the inhabitants.
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 exceeded 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. [p133]
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 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.
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.
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, and 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.
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 material 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'être and original object remain. Since their fulfilment did not depend on the existence of the
League of Nations, they could not be brought to an end merely because this supervisory organ
ceased to exist. Nor could the right of the population to have the Territory administered in
accordance with these rules depend thereon.
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 provi-[p134]sion 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
Sations. 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.
This view results, moreover from the Resolution of the League of Nations of April 18th, 1946,
which said :
"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 :
……………………………………………………………………………………………………
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."
As will be seen from this resolution, the Assembly said that the League's functions with
respect to mandated territories would come to an end ; it did not say that the Mandates
themselves came to an end. In confining itself to this statement, and in taking note, on the
other hand, of the expressed intentions of the mandatory Powers to continue to administer the
mandated territories in accordance with their respective Mandates, until other arrangements
had been agreed upon between the United Nations and those Powers, the Assembly manifested
its understanding that the Mandates were to continue in existence until "other arrangements"
were established.
A similar view has on various occasions been expressed by the Union of South Africa. In
declarations made to the League of Nations, as well as to the United Nations, the Union
Government has acknowledged that its obligations under the Mandate continued [p135] after
the disappearance of the League. In a declaration made on April 9th, 1946, in the Assembly of
the League of Nations, the representative of the Union Government, after having declared his
Government's intention to seek international recognition for the Territory of South-West
Africa as an integral part of the Union, stated: "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." After having
said that ,the disappearance of the Mandates Commission and of the League Council would
"necessarily preclude complete compliance with the letter of the Mandate", he added : "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."
In a memorandum submitted on October 17th, 1946, by the South-African Legation in
Washington to the Secretary-General of the United Nations, expression was given to a similar
view. Though the League had at that time disappeared, the Union Government continued to
refer to its responsibility under the Mandate. It stated: "This responsibility of the Union
Government as Mandatory is necessarily inalienable." On November 4th, 1946, the Prime
Minister of the Union, in a statement to the Fourth Committee of the United Nations General
Assembly, repeated the declaration which the representative of the Union had made previously
to the League of Nations.
In a letter of July 23rd, 1947, to the Secretary-General of the United Nations, the Legation of
the Union referred to a resolution of the Union Parliament in which it was declared "that the
Government should continue to render reports to the United Nations Organization as it has
done heretofore under the Mandate". It was further stated in that letter: "In the circumstances
the Union Government have no alternative but to maintain the status quo and to continue to
administer the Territory in the spirit of the existing Mandate."
These declarations constitute recognition by the Union Government of the continuance of its
obligations under the Mandate and not a mere indication of the future conduct of that
Government. Interpretations placed upon legal instruments by the parties to them, though not
conclusive as to their meaning, have considerable [p136] probative value when they contain
recognition by a party of its own obligations under an instrument. In this case the declarations
of the Union of South Africa support the conclusions already reached by the Court.
***
The Court will now consider the above-mentioned second group of obligations. These
obligations related to the machinery for implementation and were closely linked to the
supervisory functions of the League of Nations—particularly the obligation of the Union of
South Africa to submit to the supervision and control of the Council of the League and the
obligation to render to it annual reports in accordance with Article 22 of the Covenant and
Article 6 of the Mandate. Since the Council disappeared by the dissolution of the League, the
question arises whether these supervisory functions are to be exercised by the new
international organization created by the Charter, and whether the Union of South Africa is
under an obligation to submit to a supervision by this new organ and to render annual reports
to it.
Some doubts might arise from the fact that the supervisory functions of the League with
regard to mandated territories not placed under the new Trusteeship System were neither
expressly transferred to the United Nations nor expressly assumed by that organization.
Nevertheless, there seem to be decisive reasons for an affirmative answer to the above-
mentioned question.
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. 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 has ceased to exist, when the United
Nations has another international organ performing similar, though not identical, supervisory
functions.
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 [p137] 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.
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.
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.
The right of petition was not mentioned by Article 22 of the Covenant or by the provisions of
the Mandate. But on January 31st, 1923, the Council of the League of Nations adopted certain
rules relating to this matter. Petitions to the League from communities or sections of the
populations of mandated territories were to be transmitted by the mandatory Governments,
which were to attach to these petitions such comments as they might consider desirable. By
this innovation the supervisory function of the Council was rendered more effective.
The Court is of opinion that 'this right, which the inhabitants of South-West Africa had thus
acquired, is maintained by Article 80, [p138] paragraph 1, of the Charter, as this clause has
been interpreted above. In view of the result at which the Court has arrived with respect to the
exercise of the supervisory functions by the United Nations and the obligation of the Union
Government to submit to such supervision, and having regard to the fact that the dispatch and
examination of petitions form a part of that supervision, the Court is of the opinion that
petitions are to be transmitted by that Government to the General Assembly of the United
Nations, which is legally qualified to deal with them.
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.
***
Reference to Chapter XI of the Charter was made by various Governments in written and oral
statements presented to the Court. Having regard to the results at which the Court has arrived,
the question whether the provisions of that chapter are applicable does not arise for the
purpose of the present Opinion. It is not included in the questions submitted to the Court and it
is unnecessary to consider it.
***
Question (b):
"Are the provisions of Chapter XII of the Charter applicable and, if so, in what manner, to the
Territory of South-West Africa?"
Territories held under Mandate were not by the Charter automatically placed under the new
International Trusteeship System.[p139]

This system should, according to Articles 75 and 77, apply to territories which are placed
thereunder by means of Trusteeship Agreements. South-West Africa, being a territory held
under Mandate (Article 77 a), may be placed under the Trusteeship System in accordance with
the provisions of Chapter XII. In this sense, that chapter is applicable to the Territory.
Question (b) further asks in what manner Chapter XII is applicable to the Territory. It appears
from a number of documents submitted to the Court in accordance with the General
Assembly's Resolution of December 6th, 1949, as well as from the written and the oral
observations of several Governments, that the General Assembly, in asking about the manner
of application of Chapter XII, was referring to the question whether the Charter imposes upon
the Union of South Africa an obligation to place the Territory under the Trusteeship System
by means of a Trusteeship Agreement.
Articles 75 and 77 show, in the opinion of the Court, that this question must be answered in
the negative. The language used in both articles is permissive ("as may be placed thereunder").
Both refer to subsequent agreements by which the territories in question may be placed under
the Trusteeship System. An "agreement" implies consent of the parties concerned, including
the mandatory Power in the case of territories held under Mandate (Article 79). The parties
must be free to accept or reject the terms of a contemplated agreement. No party can impose
its terms on the other party. Article 77, paragraph 2, moreover, presupposes agreement not
only with regard to its particular terms, but also as to which territories will be brought under
the Trusteeship System.
It has been contended that the word "voluntarily", used in Article 77 with respect to category
(c) only, shows that the placing of other territories under Trusteeship is compulsory. This word
alone cannot, however, over-ride the principle derived from Articles 75, 77 and 79 considered
as a whole. An obligation for a mandatory State to place the Territory under Trusteeship
would have been expressed in a direct manner. The word "voluntarily" incorporated in
category (c) can be explained as having been used out of an abundance of caution and as an
added assurance of freedom of initiative to States having territories falling within that
category.
It has also been contended that paragraph 2 of Article 80 imposes on mandatory States a duty
to negotiate and conclude Trusteeship Agreements. The Court finds no justification for this
contention. The paragraph merely States that the first paragraph of the article 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 as
provided for in Article 77. There is nothing to suggest that the [p140] provision was intended
as an exception to the principle derived from Articles 75, 77 and 79. The provision is entirely
negative in character and cannot be said to create an obligation to negotiate and conclude an
agreement. Had the parties to the Charter intended to create an obligation of this kind for a
mandatory State, such intention would necessarily have been expressed in positive terms.
It has further been maintained that Article 80, paragraph 2, creates an obligation for mandatory
States to enter into negotiations with a view to concluding a Trusteeship Agreement. But an
obligation to negotiate without any obligation to conclude an agreement can hardly be derived
from this provision, which expressly refers to delay or postponement of "the negotiation and
conclusion" of agreements. It is not limited to negotiations only. Moreover, it refers to the
negotiation and conclusion of agreements for placing "mandated and other territories under the
Trusteeship System as provided for in Article 77". In other words, it refers not merely to
territories held under Mandate, but also to the territories mentioned in Article 77 (b) and (c). It
is, however, evident that there can be no obligation to enter into negotiations with a view to
concluding Trusteeship Agreements for those territories.
It is contended that the Trusteeship System created by the Charter would have no more than a
theoretical existence if the mandatory Powers were not under an obligation to enter into
negotiations with a view to concluding Trusteeship Agreements. This contention is not
convincing, since an obligation merely to negotiate does not of itself assure the conclusion of
Trusteeship Agreements. Nor was the Trusteeship System created only for mandated
territories.
It is true that, while Members of the League of Nations regarded the Mandates System as the
best method for discharging the sacred trust of civilization provided for in Article 22 of the
Covenant, the Members of the United Nations considered the International Trusteeship System
to be the best method for discharging a similar mission. It is equally true that the Charter has
contemplated and regulated only a single system, the International Trusteeship System. It did
not contemplate or regulate a co-existing Mandates System. It may thus be concluded that it
was expected that the mandatory States would follow the normal course indicated by the
Charter, namely, conclude Trusteeship Agreements. The Court is, however, unable to deduce
from these general considerations any legal obligation for mandatory States to conclude or to
negotiate such agreements. It is not for the Court to pronounce on the political or moral duties
which these considerations may involve.
For these reasons, the Court considers that the Charter does not impose on the Union an
obligation to place South-West Africa under the Trusteeship System. [p141]
***
Question (c) :
"Has the Union of South Africa the competence to modify the international status of the
Territory of South-West Africa, or, in the event of a negative reply, where does competence
rest to determine and modify the international status of the Territory ?"
The international status of the Territory results from the international rules regulating the
rights, powers and obligations relating to the administration of the Territory and the
supervision of that administration, as embodied in Article 22 of the Covenant and in the
Mandate. It is clear that the Union has no competence to modify unilaterally the international
status of the Territory or any of these international rules. This -is shown by Article 7 of the
Mandate, which expressly provides that the consent of the Council of the League of Nations is
required for any modification of the terms of the Mandate.
The Court is further requested to Say where competence to determine and modify the
international status of the Territory rests.
Before answering this question, the Court repeats that the normal way of modifying the
international status of the Territory would be to place it under the Trusteeship System by
means of a Trusteeship Agreement in accordance with the provisions of Chapter XII of the
Charter.
The competence to modify in other ways the international status of the Territory depended on
the rules governing the amendment of Article 22 of the Covenant and the modification of the
terms of the Mandate.
Article 26 of the Covenant laid down the procedure for amending provisions of the Covenant,
including Article 22. On the other hand, Article 7 of the Mandate stipulates that the consent of
the Council of the League was required for any modification of the terms of that Mandate. The
rules thus laid down have become inapplicable following the dissolution of the League of
Nations. But one cannot conclude therefrom that no proper procedure exists for modifying the
international status of South-West Africa.
Article 7 of the Mandate, in requiring the consent of the Council of the League of Nations for
any modification of its terms, brought into operation for this purpose the same organ which
was invested with powers of supervision in respect of the administration of the Mandates. In
accordance with the reply given above to Question (a), those powers of supervision now
belong to the General Assembly of the United Nations. On the other hand, Articles 79 and 85
of the Charter require that a Trusteeship Agreement be concluded by the mandatory Power and
approved by the General Assembly [p142] before the International Trusteeship System may be
substituted for the Mandates System. These articles also give the General Assembly authority
to approve alterations or amendments of Trusteeship Agreements. By analogy, it can be
inferred that the same procedure is applicable to any modification of the international status of
a territory under Mandate which would not have for its purpose the placing of the territory
under the Trusteeship System. This conclusion is strengthened by the action taken by the
General Assembly and the attitude adopted by the Union of South Africa which is at present
the only existing mandatory Power.
On January 22nd, 1946, before the Fourth Committee of the General Assembly, the
representative of the Union of South Africa explained the special relationship between the
Union and the Territory under its Mandate. There would—he said—be no attempt to draw up
an agreement until the freely expressed will of both the European and native populations had
been ascertained. He continued : "When that had been done, the decision of the Union would
be submitted to the General Assembly for judgment."
On April 9th, 1946, before the Assembly of the League of Nations, the Union representative
declared that "it is the intention of the Union Government, at the forthcoming session of the
United Nations General Assembly in New York, to formulate its case for according South-
West Africa a status under which it would be internationally recognized as an integral part of
the Union".
In accordance with these declarations, the Union Government, by letter of August 12th, 1946,
from its Legation in Washington, requested that the question of the desirability of the
territorial, integration in, and the annexation to, the Union of South Africa of the mandated
Territory of South-West Africa, be included in the Agenda of the General Assembly. In a
subsequent letter of October 9th, 1946, it was requested that the text of the item to be included
in the Agenda be amended as follows : "Statement by the Government of the Union of South
Africa on the outcome of their consultations with the peoples of South-West Africa as to the
future status of the mandated Territory, and implementation to be given to the wishes thus
expressed."
On November 4th, 1946, before the Fourth Committee, the Prime Minister of the Union of
South Africa stated that the Union clearly understood "that its international responsibility
precluded it from taking advantage of the war situation by effecting a change in the status of
South-West Africa without proper consultation either of all the peoples of the Territory itself,
or with the competent international organs".
By thus submitting the question of the future international status of the Territory to the
"judgment" of the General Assembly as the "competent international organ", the Union
Government recognized the competence of the General Assembly in the matter.[p143]
The General Assembly, on the other hand, affirmed its competence by Resolution 65 (1) of
December 14th, 1946. It noted with satisfaction that the step taken by the Union showed the
recognition of the interest and concern of the United Nations in the matter. It expressed the
desire "that agreement between the United Nations and the Union of South Africa may
hereafter be reached regarding the future status of the Mandated Territory of South-West
Africa", and concluded: "The General Assembly, therefore, is unable to accede to the
incorporation of the Territory of South-West Africa in the Union of South Africa."
Following the adoption of this resolution, the Union Government decided not to proceed with
the incorporation of the Territory, but to maintain the status quo. The General Assembly took
note of this decision in its Resolution 141 (II) of November 1st, 1947.
On the basis of these considerations, the Court concludes that competence to determine and
modify the international status of South-West Africa rests with the Union of South Africa
acting with the consent of the United Nations.
For these reasons,
The Court is of opinion,
On the General Question :
unanimously,
that South-West Africa is a territory under the international Mandate assumed by the Union of
South Africa on December 17th, 1920;
On Question (a) :
by twelve votes to two,
that 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, and the reference to the Permanent Court of International
Justice to be replaced by a reference to the International Court of Justice, in accordance with
Article 7 of the Mandate and Article 37 of the Statute of the Court;[p144]
On Question (b) :
unanimously,
that the provisions of Chapter XII of the Charter are applicable to the Territory of South-West
Africa in the sense that they provide a means by which the Territory may be brought under the
Trusteeship System;
and by eight votes to six,
that the provisions of Chapter XII of the Charter do not impose on the Union of South Africa a
legal obligation to place the Territory under the Trusteeship System ;

On Question (c) :
unanimously,
that the Union of South Africa acting alone has not the competence to modify the international
status of the Territory of South-West Africa, and that the competence to determine and modify
the international status of the Territory rests with the Union of South Africa acting with the
consent of the United Nations.
Done in English and French, the English text being authoritative, at the Peace Palace, The
Hague, this eleventh day of July, one thousand nine hundred and fifty, in two copies, one of
which will be placed in the archives of the Court and the other transmitted to the Secretary-
General of the United Sations.
(Signed) Basdevant,
President.
(Signed) E. Hambro,
Registrar
Vice-President Guerrero regrets that he is unable to concur in the opinion of the Court on the
answer to the question under letter (b) and declares that in his opinion the Charter imposes on
the Union of South Africa an obligation to place the Territory of [p145] South-West Africa
under the Trusteeship System, and that therefore the Union is bound under paragraph 2 of
Article 80 of the Charter not to delay or postpone the negotiation and conclusion of an
agreement for placing the Territory under the Trusteeship System. Otherwise Article 80 of the
Charter would have no meaning. On this point and on the text in general, Mr. Guerrero shares
the views expressed by Judge De Visscher.
Judges Zoričic and Badawi Pasha declare that they regret to be unable to concur in the answer
given by the Court to the second part of the question under letter (b). They share in general the
views expressed on this point in the dissenting Opinion of Judge De Visscher.
Judge Sir Arnold McNair and Judge Read, availing themselves of the right conferred on them
by Article 57 of the Statute, have appended to the Opinion of the Court statements of their
separate Opinions.
Judges Alvarez, De Visscher and Krylov, availing themselves of the right conferred on them
by Article 57 of the Statute, have appended to the Opinion of the Court statements of their
dissenting Opinions
. ceased to be under the sovereignty of the States which formerly governed them". The earliest
(Initialled), J. B.
(Initialled) E. H. [p146]
SEPARATE OPINION BY SIR ARNOLD McNAIR
I concur in the Replies given by the majority of the Court to the General Question and to
Questions (b) and (c). As to Question (a), I regret that 1 differ as to the obligation to make
reports and as to the transfer of the administrative supervision of the Council of the League of
Nations (including its Rules of Procedure in respect of Petitions) to the United Nations. As my
approach to the main problems differs somewhat from that of the majority, I shall give my
own reasons for answering each question, except in regard to Question (b).
General Question, and Question (a)
The crucial problems raised by Question (a) submitted to the Court are : What is the effect of
the dissolution of the League of Nations in April, 1946, upon the Mandate for South-West
Africa, and which, if any, of the obligations arising from it are still binding upon the Union of
South Africa (which I shall also refer to as "the Union").
The solution submitted by Counsel for the Union Government for the first of these problems
can be .stated very simply : the Mandate is based on the analogy of the contract of mandate in
private law, the League being the Mandator and the Union the Mandatory ; the relationship
cannot subsist without a Mandator at one end and a Mandatory at the other ; "as between the
League and the Union Government, the Mandate therefore came to an end, and that means
that, as from the dissolution of the League, there has been no Mandate" ; "the Mandates lapsed
and the Covenant itself ceased to be a legally valid document" ; and "the dissolution of the
League had the effect of extinguishing all international legal rights and obligations under the
Mandates System". This conclusion left it to be inferred that the Union Government would
thereupon be free to regulate the future status of South-West Africa as a domestic matter.
For three separate reasons I have formed the opinion that a Mandate is a more durable and a
more complex institution than this solution suggests, and I cannot accept it. My reasons rest on
: [p147]
1. The legal nature of the Mandates System.
2. The objective character of Article 22 of the Covenant of the League of Nations.
3. The terms of the Mandate for South-West Africa and their legal nature.
***
I. The legal nature of the Mandates System. The principal documents responsible for the
creation of the Mandates System are Article 22 of the Covenant of the League of Nations and
the several Mandates confirmed in pursuance of it by the Council of the League. The main
rule of policy proclaimed by Article 22 of the Covenant is that to certain territories "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 securities for the performance of this
trust should be embodied in this Covenant". This policy was applied to certain colonies and
territories, including South-West Africa, "which, as a consequence of the [then] late war have
document (or at any rate one of the earliest documents to contain an exposition of this new
policy is the Memorandum by General Smuts, called "The League of Nations : A Practical
Suggestion", which will be found in Volume II, pages 23-60, of Hunter Miller's book, "The
Drafting of the Covenant". This Memorandum, so far as the Mandates System is concerned,
deals with policy and principles rather than with legal machinery. Its author held the view that
the "authority, control or administration" of these dependent territories should be vested in the
League, but that, as "joint international administration in so far as it has been applied to
territories or peoples, has been found wanting wherever it has been tried", it would be
preferable that the League, instead of exercising these powers itself, should delegate them to a
"mandatory State". Beyond that the Memorandum does not discuss the legal nature of the
relations between the League and the Mandatory. From page 508 of Volume 1 of the same
book, it seems probable that, in the course of the preparatory work for the treaties-of peace,
the critical resolution regarding the Mandates System was presented and adopted in English ;
in the French text there appear the words "mandat", "mandataire" and "tutelle".[p148]
What is the duty of an international tribunal when confronted with a new legal institution the
object and terminology of which are reminiscent of the rules and institutions of private law?
To what extent is it useful or necessary to examine what may at first sight appear to be
relevant analogies in private law systems and draw help and inspiration from them?
International law has recruited and continues to recruit many of its rules and institutions from
private systems of law. Article 38 (1) (c) of the Statute of the Court bears witness that this
process is still active, and it will be noted that this article authorizes the Court to "apply .... (c)
the general principles of law recognized by civilized nations". The way in which international
law borrows from this source is not by means of importing private law institutions "lock, stock
and barrel", ready-made and fully equipped with a set of rules. It would be difficult to
reconcile such a process with the application of "the general principles of law". In my opinion,
the true view of the duty of international tribunals in this matter is to regard any features or
terminology which are reminiscent of the rules and institutions of private law as an indication
of policy and principles rather than as directly importing these rules and institutions. I quote a
sentence from a judgment by Chief Justice Innes in the decision of the Supreme Court of
South Africa in Rex v. Christian, South African Law Reports [1924], Appellate Division, 101,
112 :
"Article 22 [of the Covenant] describes the administration of the territories and peoples with
which it deals as a tutelage to be exercised by the governing Power as mandatory on behalf of
the League. Those terms were probably employed, not in their strict legal sense, but as
indicating the policy which the governing authority should pursue. The relationship between
the League and the mandatory could not with any legal accuracy be described as that of
principal and agent."
Let us then seek to discover the underlying policy and principles of Article 22 and of the
Mandates. No technical significance can be attached to the words "sacred trust of civilization",
but they are an apt description of the policy of the authors of the Mandates System, and the
words "sacred trust" were not used here for the first time in relation to dependent peoples (see
Duncan Hall, Mandates, Dependencies and Trusteeships, pp. 97-100). Any English lawyer
who was instructed to prepare the legal instruments required to give effect to the policy of
Article 22 would inevitably be reminded of, and influenced by, the trust of English and
American law, though he would soon realize the need of much adaptation for the purposes of
the new international institution. Professor Brierly's opinion, stated in the British Year Book of
International Law, 1929, pages 217-219, that the governing principle of the Mandates [p149]
System is to be found in the trust, and his quotation from an article by M. Lepaulle, are here
very much in point, and it is worth noting that the historical basis of the legal enforcement of
the English trust is that it was something which was binding upon the conscience of the
trustee; that is why it was legally enforced. It also seems probable that the conception of the
Mandates System owes something to the French tutelle.
Nearly every legal system possesses some institution whereby the property (and sometimes the
persons) of those who are not sui juris, such as a minor or a lunatic, can be entrusted to some
responsible person as a trustee or tuteur or curateur. The Anglo-American trust serves this
purpose, and another purpose even more closely akin to the Mandates System, namely, the
vesting of property in trustees, and its management by them in order that the public or some
class of the public may derive benefit or that some public purpose may be served. The trust
has frequently been used to protect the weak and the dependent, in cases where there is "great
might on the one side and unmight on the other", and the English courts have for many
centuries pursued a vigorous policy in the administration and enforcement of trusts.
There are three general principles which are common to all these institutions :
(a) that the control of the trustee, tuteur or curateur over the property is limited in one way or
another ; he is not in the position of the normal complete owner, who can do what he likes
with his own, because he is precluded from administering the property for his own personal
benefit;
(b) that the trustee, tuteur or curateur is under some kind of legal obligation, based on
confidence and conscience, to carry out the trust or mission confided to him for the benefit of
some other person or for some public purpose ;
(c) that any attempt by one of these persons to absorb the property entrusted to him into his
own patrimony would be illegal and would be prevented by the law.
These are some of the general principles of private law which throw light upon this new
institution, and I am convinced that in its future development the law governing the trust is a
source from which much can be derived. The importance of the Mandates System is marked
by the fact that, after the experience of a quarter of a century, the Charter of the United
Nations made provision for an "International Trusteeship System", which was described by a
[p150] Resolution of the Assembly of the League of April 18th, 1946, as embodying
"principles corresponding to those declared in Article 22 of the Covenant of the League".
Upon sovereignty a very few words will suffice. The Mandates System (and the
"corresponding principles" of the International Trusteeship System) is a new institution-—a
new relationship between territory and its inhabitants on the one hand and the government
which represents them internationally on the other— a new species of international
government, which does not fit into the old conception of sovereignty and which is alien to it.
The doctrine of sovereignty has no application to this new system. Sovereignty over a
Mandated Territory is in abeyance ; if and when the inhabitants of the Territory obtain
recognition as an independent State, as has already happened in the case of some of the
Mandates, sovereignty will revive and vest in the new State. What matters in considering this
new institution is not where sovereignty lies, but what are the rights and duties of the
Mandatory in regard to the area of territory being administered by it. The answer to that
question depends on the international agreements creating the system and the rules of law
which they attract. Its essence is that the Mandatory acquires only a limited title to the territory
entrusted to it, and that the measure of its powers is what is necessary for the purpose of
carrying out the Mandate. "The Mandatory's rights, like the trustee's, have their foundation in
his obligations ; they are 'tools given to him in order to achieve the work assigned to him' ; he
has 'all the tools necessary for such end, but only those'." (See Brierly, referred to above.)
Some practical confirmation of these suggestions of the relevant principles can be obtained
from judgments delivered by the Courts of two Mandatories—the Union of South Africa and
the Common-wealth of Australia. (As the Reports of these decisions are riot available
everywhere, I must quote extracts from them.) In Rex v. Christian, already cited, before the
Supreme Court of South Africa, the Honourable J. de Villiers, Judge of ,4ppeal, said :
"It is true there is no cession of the territory to the Union Government as in the case of other
possessions which formerly belonged to Germany. By Article 257 South-West Africa is said
to be transferred to the Union Government in its capacity as mandatory. But, as I shall show,
by that is meant that the Union Government is bound by the terms of the treaty, as well as in
honour, scrupulously to carry out the terms of the Mandate. South-West Africa is transferred
to the people of the Union not by way of absolute property, but in the same way as a trustee is
in possession of the property of the cestui que trust or a guardian of the property of his [p151]
ward. The former has the administration and control of the property, but the property has to be
administered exclusively in the interests of the latter. The legal terms employed in Article
22—trust, tutelage, mandate—cannot be taken literally as expressing the definite conceptions
for which they stand in law. They are to be understood as indicating rather the spirit in which
the advanced nation who is honoured with a mandate should administer the territory entrusted
to its care and discharge its duties to the inhabitants of the territory, more especially towards
the indigenous populations. In how far the legal principles of these analogous municipal
institutions should be applied in these international relations I shall not take upon myself to
pronounce. But I may be permitted to say that in my opinion the use of the term shows that, in
so far as those legal principles are reasonably applicable to these novel institutions, they
should loyally be applied. No doubt most difficult questions will arise. In municipal law a
principal can, e.g., revoke his authority at his own mere pleasure. Such is the rule. Could this
be done in the case of South-West Africa where the Union Government, if there is a principal
at all, must be considered as a joint principal together with all the other high contracting
parties ?" (P. 121.)
And Sir J. W. Wessels, Judge of Appeal, said :
"This leaves us with the mandatory power. Now although the term mandatory power seems to
imply that the mandatory acts as the agent of the League of Nations or of the associated
powers, yet in fact that is not so. Neither by the Treaty of Versailles nor by the mandate of the
League of Nations has the Union of South Africa been appointed as a mere agent. There is no
question here of respondent superior...." (P. 136.)
I share this view that the legal character of the Mandates cannot be explained by reference to
the private law contract of mandate or agency. The words "Mandate" and "Mandatory" were
employed as non-technical terms to denote that the Mandatory was doing something "on
behalf of the League", and that that is all that can be extracted from their use. It is primarily
from the principles of the trust that help can be obtained on the side of private law.
In Ffrost v. Stevenson (1937), 58 Commonwealth Law Reports 528, Annual Digest and
Reports of Public International Law Cases, 1935-1937, Case No. 29, the High Court of
Australia, on appeal from the Supreme Court of New South Wales, had to decide, on a matter
of extradition, whether or not "the Mandated Territory of New Guinea [also a C Mandate] is a
place out of His Majesty's Dominions in which His Majesty has jurisdiction....". The High
Court gave an affirmative answer. This decision involved a consider-[p152]ation of the nature
of a Mandate and the powers of a Mandatory, and the following extracts from the judgments
of Chief Justice Latham and Mr. Justice Evatt are of interest. The former said :
"The grant of mandates introduced a new principle into international law...." (P. 550.)
"The position of a mandatory in relation to a mandated territory must be regarded as sui
generis. The Treaty of Peace, read as a whole, avoids cession of territory to the mandatory,
and, in the absence of definite evidence to the contrary, it must, I think, be taken that New
Guinea has not become part of the dominions of the Crown." (P. 552.)
"The intention of this provision [Article 257 of the Treaty of Peace] must be taken to have
been to provide for the transfer of the territory to the mandatory, but only in its capacity as a
mandatory. The mandatory, as a kind of international trustee, receives the territory subject to
the provisions of the mandate which limit the exercise of the governmental powers of the
mandatory. Thus the article quoted, while recognizing that the territory is actually to be
transferred to the mandatory, emphasizes the conditions and limitations upon governmental
power which constitute the essence of the mandatory system. Thus the title under which the
territory is to be held as a mandated territory is different from that under which a territory
transferred by simple cession would have been held. The article shows that the intention was
to achieve a transfer of a territory without making that territory in the ordinary sense a
possession of the mandatory. A territory which is a 'possession' can be ceded by a power to
another power so that the latter power will have complete authority in relation to that territory.
Such a cession by a mandatory power would be quite inconsistent with the whole conception
of a mandate. A mandated territory is not a possession of a power in the ordinary sense." (Pp.
552, 553.)
Mr. Justice Evatt, after referring to a number of British decisions on the status of protectorates,
said :
"It is quite fallacious to infer from the fact that, in pursuance of its international duties under
the mandate, the Commonwealth of Australia exercises full and complete jurisdiction over the
territory as though it possessed unlimited sovereignty therein, either that the territory (a) is a
British possession, or (b) is within the King's dominions, or (c) has ever been assimilated or
incorporated within the Commonwealth or its territories...." (P. 551.)
"Therefore, it can be stated that, despite certain differences of opinion as to such questions as
sovereignty in relation to the mandated territories, every recognized authority in international
law accepts the view that the Mandated Territory of New Guinea is not part of the King's
dominions. Over and over again this fact [p153]has been recognized by the leading jurists of
Europe including many who have closely analyzed such matters in relation to the organization
and administration of the League of Nations." (P. 582.)
He then adopted Professor Brierly's view, referred to above, as to 'the governing principle of
the Mandates System.
Reference should also be made to Mr. Justice Evatt's judgment in Jolley v. Mainka (1933), 49
Commonwealth Law Reports 242, at pages 264-292, Annual Digest, 1933-1934, Case No. 17,
relating to the same Mandated Territory.
***
2. The objective character of Article 22 of the Covenant of the League of Nations
From time to time it happens that a group of great Powers, or a large number of States both
great and small, assume a power to create by a multipartite treaty some new international
régime or status, which soon acquires a degree of acceptance and durability extending beyond
the limits of the actual contracting parties, and giving it an objective existence. This power is
used when some public interest is involved, and its exercise often occurs in the course of the
peace settlement at the end of a great war. In 1920 the Council of the League had to deal with
a dispute between Finland and Sweden, Which, inter alia, involved an examination of the
existing condition of a Convention dated March 30, 1856, between France and Great Britain
on the one hand and Russia on the other, whereby Russia, in compliance with the desire of the
other two States, declared "that the Aaland Islands shall not be fortified, and that no military
or naval base shall be maintained or created there". (This Convention was attached to and
became all integral part of the General Treaty of Peace of the same date, made between seven
States, which brought the Crimean War to an end.) Sweden claimed that this status of
demilitarization was still in force in 1920 in spite of many intervening events, and that she,
though not a party to the Convention or Peace Treaty of 1856, was entitled to the benefit of it;
her claim was based on the allegation of an international servitude. As the Permanent Court of
International Justice had not then come into existence, the Council of the League set up a
Commission of Jurists; Professor F. Larnaude (President), Professor A. Struycken and
Professor Max Huber, and referred certain legal questions to them. They received written
statements and heard oral arguments on behalf of Finland and Sweden. The Jurists rejected the
argument based on an alleged servitude and reported that the provisions of the Convention and
Treaty of 1856 for demilitarization were still in force.[p154]
"These provisions [they said] were laid down in European interests. They constituted a special
international status. relating to military considerations, for the Aaland Islands. It follows that
until these provisions are duly replaced by others, every State interested [including Sweden
which was not a party] has the right to insist upon compliance with them. It also follows that
any State in possession of the Islands must conform to the obligations binding upon it, arising
out of the system of demilitarization established by these provisions."
The Report [FN1] contains many expressions which illuminate this conclusion, e.g.,
------------------------------------------------------------------------------------------------------------------
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[FN1] L. N. Off. Jo. Oct. 1920, Spec. Sup. No. 3.
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"The Powers have, on many occasions since 1815, and especially at the conclusion of peace
treaties, tried to create true objective law, a real political status the effects of which are felt
outside the immediate circle of contracting parties",
and again, "the character of a settlement regulating European interests", "European law", and
"the objective nature of the settlement".
It may seem a far cry from the Aaland Islands to South-West Africa, but reference to this case
is demanded by the high standing of the members of the Commission and by the relevance of
their reasoning to the present problems. I may also refer to the statement by the Permanent
Court in the SS. Wimbledon case (Series A. No. 1, p. 22) that as a result of Article 380 of the
Treaty of Versailles of 1919 the Kiel Canal "has become an international waterway intended
to provide under treaty guarantee easier access to the Baltic for the benefit of all nations of the
world"-—which was referred to as "its new regime".
The Mandates System seems to me to be an a fortiori case. The occasion was the end of a
world war. The parties to the treaties of peace incorporating the Covenant of the League and
establishing the system numbered thirty. The public interest extended far beyond Europe.
Article 22 proclaimed "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 the Covenant". A large part of the civilized world concurred in opening a new
chapter in the life of between fifteen and twenty millions of people, and this article was the
instrument adopted to give effect to their desire. In my opinion, the new régime established in
pursuance of this "principle" has more than a purely contractual basis, and the territories
subjected to it are impressed with a special legal status, designed to last [p155] until modified
in the manner indicated by Article 22. The dissolution of the League has produced certain
difficulties, but, as I shall explain, they are mechanical difficulties, and the policy and
principles of the new institution have survived the impact of the events of 1939 to 946, and
have indeed been reincarnated by the Charter under the name of the "International Trusteeship
System", with a new lease of life
3. The terms of the Mandate for South-West Africa and their legal nature
What obligations and other legal effects were produced by the Mandate for South-West Africa
? From the first paragraph of Article 22 of the Covenant it appears that German sovereignty
had already disappeared before the Mandate was granted on December 17, 1920. Nothing
more is said about sovereignty. The penultimate paragraph tells us that the Council of the
League will define "the degree of authority, control or administration to be exercised by the
Mandatory": this is not the language of sovereignty and indicates some new relationship
between a State and the territory for which it is to become responsible— a title more limited in
character than the normal title of the sovereign State, a title which is possessory rather than
proprietary.
The Mandate in this case is a document dated December 17, 1920, whereby, after a preamble
containing important recitals, the Council of the League : "Confirming the said Mandate,
defines its terms as follows" in seven articles. Article I says that : "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 .... comprises the territory which formerly constituted the German
Protectorate of South-West Africa." Article 2 provides that : "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 subject to the present Mandate." This language does not make the
Territory a part of the territory of the Union of South Africa, and negatives any such inference.
Article 3 relates to the slave trade, forced labour, the traffic in arms and ammunition, and the
supply of intoxicating spirits and beverages to the natives. Article 4 prohibits the military
training of the natives "otherwise than for purposes of internal police and the local [p156]
defence of the territory", the establishment of military or naval bases and the erection of
fortifications. Article 5 provides for "freedom of conscience and the free exercise of all forms
of worship" and for the admission, travel and residence of missionaries who are nationals of
any State Member of the League of Nations. Article 6 provides that :
"The mandatory shall make to the Council of the League of Nations an annual report to the
satisfaction of the Council, containing full information with regard to the Territory and
indicating the measures taken to carry out the obligations assumed under Articles 2, 3, 4 and
5."
Article 7 provides that :
"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...."
These obligations possess two distinct characters. The provisions of the Mandate are in part
contractual 'and in part "dispositive" (upon which term see Westlake, International Law (2nd
edition), ii, pp. 60, 294). In English terminology, it is both a "contract" and a "conveyance",
that is to Say, a document which transfers or creates rights connected with property or
possession. In addition to the personal rights and obligations referred to above, it also created
certain "real" rights and obligations. Coupled with the effect of the assent of the Principal
Allied and Associated Powers, in whose favour Germany renounced her rights and titles over
South-West Africa and who are expressly described in the preamble of the Mandate as the
proposers of the Mandate, the Mandate transferred to the Mandatory, or created and
recognized in the hands of the Mandatory, certain rights of possession and government
(administrative and legislative) which are valid in rem—erga omnes, that is, against the whole
world, or at any rate against every State which was a Member of the League or in any other
way recognized the Mandate ; moreover, there are certain obligations binding every State that
is responsible for the control of territory and available to other States.
In short, the Mandate created a status for South-West Africa. This fact is important in
assessing the effect of the dissolution of the League. This status—valid in rem—supplies the
element of [p157]
permanence which would enable the legal condition of the Territory to survive the
disappearance of the League, even if there were no surviving personal obligations between the
Union and other former Members of the League. "Real" rights created by an international
agreement have a greater degree of permanence than personal rights, because these rights
acquire an objective existence which is more resistant than are personal rights to the
dislocating effects of international events. The importance of this point is that it makes it
unnecessary to determine the respective roles of the Principal Allied and Associated Powers
and the Council of the League in the creation of the Mandate or to consider whether those
Powers became functi oficio after the allocation and confirmation of the Mandate, as was
submitted by counsel for the Union Government, or not. As Chief Justice Marshall said in
Chirac v. Chirac (1817), 2 Wheaton 259, 277 (cited in Moore, Digest of International Law,
Section 780), speaking of a treaty which had expired :
"A right once vested does not require, for its preservation, the continued existence of the
power by which it was acquired. If a treaty, or any other law, has performed its office by
giving a right, the expiration of the treaty or law can not extinguish that right."
***
I now turn to consider the effect of the dissolution of the League.
The dissolution of the League on April 19, 1946, did not automatically terminate the
Mandates. Each Mandate has to be considered separately to ascertain the date and the mode of
its termination. Take the case of Palestine. It is instructive to note that on November 29, 1947,
the General Assembly of the United Nations adopted a resolution approving a plan of partition
of Palestine, which was firmly based on the view that the Palestine Mandate still continued, as
is evident from Articles I and 2 of Part A and Article 12 of Part B of the Plan. Again, in the
Peace Treaty with Italy of February 10, 1947, it was considered necessary (Article 40) that
Italy should renounce all her rights under the Mandates System and in respect of any
mandated territory.
The Mandate for South-West Africa was never formally terminated, and I can find no events
which can be said to have brought about its termination by implication. Paragraph 3 of the
Resolution of the Assembly of the League regarding the Mandates, dated April 18, 1946, does
not Say that the Mandates come to an end but that, "on the termination of the League's
existence, its functions with respect to the Mandated Territories will come to an end".[p158]
Which then of the obligations and other legal effects resulting from the Mandate remain to-day
? The Mandatory owed to the League and to its Members a general obligation to carry out the
terms of the Mandate and also certain specific obligations, such as the obligation of Article 6
to make an annual report to the Council of the League. The obligations owed to the League
itself have come to an end. The obligations owed to former Members of the League, at any
rate, those who were Members at the date of its dissolution, subsist, except in so far as their
performance involves the actual co-operation of the League, which is now impossible. (I shall
deal with Article G and the first paragraph of Article 7 later.) Moreover, the international
status created for South-West Africa, namely that of a territory governed by a State in
pursuance of a limited title as defined in a Mandate, subsists.
Although there is no longer any League to supervise the exercise of the Mandate, it would be
an error to think that there is no control over the Mandatory. Every State which was a Member
of the League at the time of its dissolution still has a legal interest in the proper exercise of the
Mandate. The Mandate provides two kinds of machinery for its supervision—judicial, by
means of the right of any Member of the League under Article 7 to bring the Mandatory
compulsorily before the Permanent Court, and admin-istrative, by means of annual reports and
their examination by the Permanent Mandates Commission of the League.
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"
[p159] 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).
On the other hand, the administrative supervision by the Council of the League, as advised by
the Permanent Mandates Commission, has lapsed, including the obligation imposed by Article
22 of the Covenant and Article 6 of the Mandate to make, in the words of the Mandate, "to the
Council of the League of Nations an annual report to the satisfaction of the Council....". This
supervision has lapsed because the League and its Council and Permanent Mandates
Commission—the organs which were designated (i) to receive the reports, (ii) to be satisfied
with them and (iii) to examine and advise upon them—no longer exist, so that it has become
impossible to perform this obligation. (When a particular Mandate was under discussion by
the Council, the Mandatory, if not a Member of the Council, was invited to sit with the
Council, with full power of speaking and voting.)
But it was contended on several grounds in the statements submitted by certain governments
to the Court, that the Union of South Africa is nevertheless under an obligation to accept the
administrative supervision of the Mandate by the United Nations, and in particular to send
annual reports to that Organization.
The first contention was that there had been an automatic succession by the United Nations to
the rights and functions of the Council of the League in this respect; but this is pure inference,
as the Charter contains no provision for a succession such as Article 37 of the Statute of the
International Court operates in the case of the compulsory jurisdiction of the Permanent Court
in regard to the Mandates. The succession of the United Nations to the administrative
functions of the League of Nations in regard to the Mandates could have been expressly
preserved and vested in the United Nations in a similar manner, but this was not done. At the
San Francisco Conference in May, 1945, when the Charter [p160] was being drafted, the
Union Government circulated to the delegations present a statement intimating that in due
course it would claim "that the Mandate should be terminated and that the Territory should be
incorporated as part of the Union of South Africa" (printed in United Nations General
Assembly Official Records, 1st session, 2nd Part, Fourth Committee, Part 1, p. 201). But
either it was hoped that in spite of this intimation the Union Government would voluntarily
elect to convert its Mandate into a Trusteeship Agreement under Chapters XII and XIII of the
Charter, or the question of preserving the administrative supervision of the Mandate was
overlooked.
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.
A third contention was based on statements made on behalf of the Union Government in
letters and in the speeches of its delegates attending meetings of the organs of the United
Nations and generally upon the conduct of that Government since the dissolution of the
League. An example of these passages—one which was received a considerable degree of
prominence—occurs in the following extract from a speech by Mr. Leif Egeland, delegate of
the Union Government, at a meeting of the Assembly of the League on April 9, 1946 :
"...: 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. 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 those organs of the League concerned with the supervision of Mandates,
primarily the Mandates Commission and the League Council, will necessarily preclude
complete com-[p161]pliance with the letter of the Mandate. The Union Government will
nevertheless regard the dissolution of the League as in no way diminishing its obligations
under the' Mandate, which it will continue to discharge with the full and proper appreciation
of its responsibilities until such time as other arrangements are agreed upon concerning the
future status of the territory."
There are also many statements to the effect that the Union Government will continue to
administer the Territory "in the spirit of the Mandate". These statements are in the aggregate
contradictory and inconsistent; and I do not find in them adequate evidence that the Union
Government has either assented to an implied succession by the United Nations to the
administrative supervision exercised by the League up to the outbreak of the war in 1939, or
has entered into a new obligation towards the United Nations to revive the pre-war system of
supervision.
A fourth contention is based on a Resolution on the Mandates adopted by the Assembly of the
League on April 18, 1946, by virtue of which, the Assembly
"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 Man-datory Powers."
By this Resolution the Assembly recognized that the functions of the League had come to an
end ; but it did not purport to transfer them, with the consent of all States interested therein, to
the United Nations. I do not see how this Resolution can be construed as having created a legal
obligation by the Union to make annual reports to the United Nations and to transfer to that
Organization the pre-war supervision of its Mandate by the League. At the most it could
impose an obligation to perform those obligations of the Mandate—and there are many—
which did not involve the activity of the League.
In these circumstances, I cannot find any legal ground on which the Court would be justified
in replacing the Council of the League by the United Nations for the purposes of exercising
the administrative supervision of the Mandate and the receipt and examin-[p162]ation of
reports. It would amount to imposing a new obligation upon the Union Government and would
be a piece of judicial legislation. In saying this, I do not overlook the competence of the
7General Assembly of the United Nations, under Article 10 of the Charter, to discuss the
Mandate for South-West Africa and to make recommendations concerning it, but that
competence depends not upon any theory of implied succession but upon the provisions of the
Charter.
For these reasons I am of the opinion that the continuing international obligations of the Union
of South Africa under the Mandate for South-West Africa do not include the obligation to
accept the administrative supervision of the United Nations and to render annual reports to that
Organization.
***
Question (b)
I concur in the Opinion of the majority of the Court with respect to this question.
***
Question (c)
There remains to be considered the effect of the dissolution of the League upon the first
paragraph of Article 7 of the Mandate, whereby "the consent of the Council of, the League of
Nations is required for any modification of the terms of the present Mandate" —a provision
which appears in all the Mandates. The effect of this paragraph is that thereby the Members of
the League, as the States interested in the Mandate, empowered the Council of the League on
their behalf to consent to any modification of the Mandate which the Council might consider
to be appropriate.
The party who was expected to bring about any modifications which the passage of years
might show to be necessary was the Mandatory but, as I have endeavoured to show in
answering Question (a), the Mandatory's title is limited and it has no power, acting alone, to
modify the international status of the Territory, either by incorporating it into its own territory
or otherwise.
What then is the effect of the disappearance of the League and the ensuing impossibility of
obtaining the consent of its Council ? In my opinion, the effect is that the first paragraph of
Article 7 of the Mandate has now lapsed. But this event in no way alters the quality or amount
of the Mandatory's title or enlarges its power to modify the terms of the Mandate, because the
international obligations affecting the Territory (except those which, as I have stated, have
already lapsed) and the international status of the Territory continue to exist. Moreover, the
Charter provides one [p163] method by which the international status of the Territory can
lawfully be modified by the Mandatory, namely, by negotiating with the United Nations and
placing it under a trusteeship agreement, as described in Chapters XII and XIII of the Charter.
On the last day of the existence of the League, April 18, 1946, the Assembly adopted a
Resolution on the subject of Mandates of which paragraphs 3 and 4 have been quoted above
on page 112.
My reply to Question (c) is that the effect of this Resolution is that the League and those States
which were Members of it at the date of its dissolution consented to any arrangements for the
modification of the terms of the Mandate that might be agreed between the United Nations and
the Union Government, and that competence to determine and modify the international status
of the Territory rests with the Union of South Africa acting with the consent of the United
Nations.
{Signed) Arnold D. McNair. [p164]
SEPARATE OPINION BY JUDGE READ
I concur in the part of the Opinion which answers Questions (b) and (c)—dealing with the
application of Chapter XII of the Charter, and competence to determine and modify the
international status of South-West Africa—and am in general agreement with the reasons by
which the answers are justified. I also concur in the part of the answer to Question (a) which
relates to the continued substantive international obligations of the Union of South Africa
arising under the Mandate. I am, however, unable to concur in the part of the answer which is
concerned with accountability to, and supervision by, the United Nations or in the reasons by
which it is justified. Accordingly, and with regret, I feel bound to state the reasons which have
led me to dissent.
The Court is asked whether the Union continues "to have international obligations under the
mandate for South-West Africa and, if so, what are those obligations ?" To answer this
question, it is necessary to examine the international obligations under the Mandate as they
existed before the dissolution of the League, to consider the effect of the dissolution, and to
ascertain whether any other factors have affected the continuance of those obligations.
For this purpose, it is unnecessary to retrace the ground covered by the Opinion of the Court.
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 possessed 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 to 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, thc benefit
of the Members of the League : e.g., in respect of missioinaries and nationals.[p165]
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, S 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 regime 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.
These obligations have one point in common. Each Member of the League had a legal interest,
vis-à-vis the Mandatory Power, in matters "relating to the interpretation or the application of
the provisions of the Mandate" ; and had a legal right to assert its interest against the Union by
invoking the compulsory jurisdiction of the Permanent Court (Article 7 of the Mandate
Agreement). Further, each Member, at the time of dissolution, had substantive legal rights
against the Union in respect of the Mandate. A substantial number of Members of the League
were not signatories of the Charter, and have not since been admitted to membership in the
United Nations. It is a principle of international law that the parties to a multilateral treaty,
regardless of their number or importance, cannot prejudice the legal rights of other States. The
United Nations, by signing and ratifying the Charter, could and did establish the competence
of the Organization to perform functions in relation to the mandated territories. They could
not, in law, transfer functions from the League to the Organization, without the consent and
authority of the League, or of Members of the League whose legal rights would thus be
impaired. Consequently, while the Charter had come into force and the organization of the
United Nations had come into being before the dissolution of the League, the legal rights of
many States, which were not members of the new Organization, as regards the mandated
territories including South-West Africa, remained in full force and vigor.
Bearing in mind the nature of the international status of South-West Africa under the
Mandates System, it is necessary to consider the effect of the dissolution of the League. In this
matter, I concur [p166] in the view of my colleagues that the international status of South-
West Africa, as a mandated territory, survived the League. I also agree with their view that the
international obligations of the Union under the Mandate continued. On the other hand, I differ
from the majority on two points: (1) I regard as significant the survival of the rights and legal
interests of the Members of the League ; and (2) in the effect of the dissolution upon certain of
the auxiliary obligations under the Mandate.
With regard to the first point, the same reasons which justify the conclusion that the Mandate
and the obligations of the Union were not brought to an end by the dissolution of the League,
lead inevitably to the conclusion that the legal rights and interests of the Members, under the
Mandate, survived. If the obligations of the Union, one of the "Mandatories on behalf of the
League", continued, the legal rights and interests of the Members of the League must, by
parity of reasoning, have been maintained. It is therefore necessary to find, and to rely on,
some disposition of the Mandate which, under the rules of international law, would be capable
of impairing or extinguishing the legal rights and interests of the Members of the League,
including those which are not members of the United Nations. No provisions of the Charter
could be sufficient for the purpose. Only action by the League, or the consent of the Members
of the League, could have that effect.
The second point relates to the auxiliary obligations, the third kind of obligations mentioned
above as arising under the Mandate. No problem exists, as regards the compulsory jurisdiction
of the Permanent Court, which was transferred to this Court by Article 37 of the Statute.
The obligations in relation to report and accountability to, and supervision by, the League,
under paragraphs 7 and 8 of Article 22 of the Covenant and Articles 6 and 7 of the Mandate
Agreement, present more difficulty. The discharge of these obligations directly involved the
participation of the Council and the Permanent Mandates Commission. The League, by its
Resolution of April 18th, 1946, paragraph 3, recognized "that, on the termination of the
League's existence, its functions with respect to the mandated territories will come to an end",
and 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 of the League". It was
no longer possible for the Union to send reports to a non-existent Council, or to be
accountable to, or supervised by, a non-existent Permanent Mandates Commission. It is,
therefore, necessary to give close consideration to the action taken at Geneva, in April 1946, in
order to determine [p167] the effect of the termination of the League's existence upon these
auxiliary obligations.
The Assembly which met at Geneva in April, 1946, was not an ordinary Assembly engaged in
routine business. It was not attempting to amend the Covenant, or the provisions of the
Mandates. It was winding up the League. Its most important resolution read as follows:
"1. (1) With effect from the day following the close of the present session of the Assembly, the
League of Nations shall cease to exist except for the sole purpose of the liquidation of its
affairs as provided in the present resolution."
There is no doubt that the Assembly succeeded in its purpose. The League has, in fact, come
to an end. The only question, and one which has been raised by eminent jurists, is whether the
Assembly was legally competent to do what it did.
I am of the opinion that the Assembly was competent to liquidate the League, on two grounds.
The first is that which is indicated by the preamble : "Considering that, under Article 3,
paragraph 3, of the Covenant, the Assembly may deal with any matter within the sphere of
action of the League." Mortality is an essential attribute of human organization. In the field of
municipal law, it is possible to provide, by legislation, for supervised liquidation, but, in
international law, there is no super-State or supreme legislative authority. In the case of an
international organization, and in the absence of express provisions in its charter, a legal
power of liquidation arises by necessary implication. Under the Covenant, the Assembly,
representing all of the Members, was clearly justified in proceeding upon the assumption that
this power to liquidate could be exercised by it, and by no other organ or agency of the
League.
The second ground is based upon a general principle of law recognized by civilized nations.
Any legal position, or system of legal relationships, can be brought to an end by the consent of
all persons having legal rights and interests which might be affected by their termination. The
Assembly, in liquidating the League, was not merely clothed with the authority conferred
upon it by the Covenant. Its action, in winding up the League and the Mandates System,
expressed the consent of all the Members of the League, present or absent, to the measures
adopted ; and waived, on their behalf, any rights or any objections that they might have raised
to the course of action approved by its resolutions.
The Assembly, in providing for the liquidation of the Mandates System, was faced with
practical problems, some of which are relevant to the present case. There was the need to
enable Man-[p168]datory Powers to conclude trusteeship agreements. The Mandatory Power,
as such, was not the sovereign of the territory. It had no right of disposition, no jus disponendi
: it was merely a Mandatory on behalf of the League. Only the League and its Members could
authorize a Mandatory to conclude a trusteeship agreement; or, indee8, to take any action
which would impair rights or obligations under a Mandate or bring a Mandate to an end.
Similarly, only the League could make legal provision for the proposal by the Union, which
involved the termination of the Mandate for South-West Africa by incorporation of the
Territory as an integral part of the Union with international recognition conferred by the
General Assembly of the United Nations. Further, in view of the provisions of the Charter,
there would, of necessity, be a period of indefinite duration, between the dissolution of the
League and the conclusion of trusteeship agreements or other disposition of the Mandates. To
cover this period, it might be essential, in the interest of the well-being and development of the
peoples of the territories under Mandate, to make some provision for the discharge of the
League functions, in respect of accountability, supervision and modification, by the United
Nations.
The action of the Assembly was expressed in the Resolution of April 18th, 1946, which
included the following provision :
"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 resolution was not expressed in technical legal language, but rather as a political
document. It did, however, set forth the intention of the League and its Members that the
Mandates should survive the League. It expressed the consent of the League and its Members
to the disposition of the Mandates by other arrangements agreed between the United Nations
and the respective Mandatory Powers. The language used was broad enough to cover the
practical problems referred to above : to give legal authority to a Mandatory to terminate a
Mandate by concluding a trusteeship agreement; to sanction the termination of a Mandate by
emancipation, incorporation or merger ; or to enable a modification of a Mandate by
establishing report and accountability to, or supervision by, the United Nations. These ends
could only be accomplished by arrangements agreed between the United Nations and the
Mandatory Power. There can be no doubt that the competence of the Assembly and Members
to wind up the League extended [p169] to the Mandates System and included executory
measures of this sort, which were essential elements of effective liquidation.
As a result of the foregoing considerations, it is possible to summarize the position, as regards
the international status of South-West Africa and the international obligations of the Union
arising therefrom, after the termination of the existence of the League :
First : the Mandate survived, together with all of the essential and substantive obligations of
the Union.
Second : the legal rights and interests of the 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.
Third : the obligations in respect of report and accountability to, and supervision by, the
League and its organs, and in respect of modification, were affected by impossibility of
performance, due to the disappearance of the Council and Permanent Mandates Commission.
Fourth: the position, as regards report, accountability and supervision was subject to
modification by arrangement agreed between the United Nations and the Union.
With regard to the other factors which may have affected the continuance of the international
obligations of the Union, there is one which cannot be overlooked. A territory, held under
Mandate by a Member of the United Nations, is not left to the uncontrolled administration of
the Mandatory Power. In the present instance, the Union, in the case of disputes relating to the
interpretation or the application of the provisions of the Mandate, is subject to the compulsory
jurisdiction of this Court—under the provisions of Article 7 of the Mandate Agreement and
Article 37 of the Statute, reinforced by Article 94 of the Charter. The importance of these
provisions cannot be measured by the frequency of their exercise. The very existence of a
judicial tribunal, clothed with compulsory jurisdiction, is enough to ensure respect for legal
obligations. In addition, the General Assembly has wide powers under Article 10 and other
articles of the Charter. There is, therefore, no lack of adequate provision in the Charter for
dealing with the position of a territory under Mandate during the period intervening between
the dissolution of the League and the termination of the Mandate, whether by conclusion of a
trusteeship agreement or in some other way.
There remains the question—the fourth point in the above summary—whether the position, as
regards report, accountability [p170] and supervision, has since been modified by arrangement
agreed between the United Nations and the Union of South Africa ; or, in other words, was
there an "arrangement agreed between" the United Nations and the Union whereby the United
Nations was to be substituted for the Council and the Permanent Mandates Commission of the
League, in the matters of report, accountability and supervision ?
It is unnecessary to discuss the juridical nature of an international agreement. It is sufficient,
for present purposes, to state that an "arrangement agreed between" the United Nations and the
Union necessarily included two elements : a meeting of the minds ; and an intention to
constitute a legal obligation.
It has been suggested, in the written statements of the governments and in the argument, that
there was agreement between the Union and the United Nations, and that the latter was
substituted for the League organs, as regards report, accountability and supervision. In
reviewing the evidence upon which this suggestion is founded, it will be convenient to
concentrate upon the single question whether there was a meeting of the minds ; i.e., whether
an agreement was reached between the Union and the United Nations, in the course of the
proceedings before the General Assembly and its Committees.
At a meeting of the Fourth Committee, November 13th, 1946, the representative of the Union
made the original proposal, in the following words :
"In particular the Union would, in accordance with Article 73, paragraph (e), of the Charter,
transmit regularly to the Secretary-General of the United Nations 'for information purposes,
subject to such limitations as security and constitutional regulations might require, statistical
and other information of a technical nature relating to economic, social and educational
conditions' in South West Africa...."
This proposal was renewed from time to time and its nature and scope were confirmed,
explained and clarified by different representatives of the Union. It is unnecessary to cite all
the instances. Fortunately, there is on record a statement, which received the unanimous
approval of the Fourth Committee, and which gives a detailed explanation of the proposal as
understood both by the representative of the Union and by the members of the Fourth
Committee. The Rapporteur's Report, October 27th, 1947, stated :
"At the thirty-third meeting of the Committee on 37 September 1947, in response to a request
by the representative of Denmark for amplification of the proposal to maintain the status quo
in South West Africa and to continue to administer the Territory in the spirit of the mandate,
particularly with regard to the United Nations and its organs, the representative of the Union
of South Africa explained that the annual report which his Government would submit on
South West Africa would contain the same type of information on the Territory as is required
for Non-Self-Governing Territories under Article 73 (e) of the Charter. It was the [p171]
assumption of his Government, he said, that the report would not be considered by the
Trusteeship Council and would not be dealt with as if a trusteeship agreement had in fact been
concluded. He further explained that, since the League of Nations had ceased to exist, the right
to submit petitions could no longer be exercised, since that right presupposes a jurisdiction
which would only exist where there is a right of control or supervision, and in the view of the
Union of South Africa no such jurisdiction is vested in the United Nations with regard to
South West Africa."
The terms of a letter from the deputy permanent representative of the Union, May 31st, 1948,
show that the proposal could no longer be regarded as standing. Even if the original proposal
could have been regarded as having been made with a view to a legal obligation, it could no
longer be so regarded after the Union had indicated that the transmission of information was
on a voluntary basis. It is, therefore, necessary to ascertain whether an arrangement was
agreed between the Union and the United Nations before that date.
It is clear, from the record, that the Government of the Union was not prepared to put forward
any proposal which went beyond the following elements :
(a) an undertaking to transmit annual reports, in accordance with, and in the terms of, Article
j3 (e) of the Charter, for the information of the United Nations ;
(b) by virtue of the provisions of the Charter, this information would be available to the
General Assembly, in the exercise of its functions under Article 10 and other articles of the
Charter, in any matter in which the functions might concern South-West Africa.
It is equally clear, from the record, that the General Assembly was not prepared to agree to an
arrangement on such a limited basis.
On the other hand, it is doubtful whether the General Assembly was willing, at any stage, to
agree to any arrangement that did not involve a trusteeship agreement for South-West Africa.
It is certain that the General Assembly was not prepared to agree to any arrangement that did
not involve the following: reports of the same nature and scope as those which had been due to
the Council under the provisions of Article 22 of the Covenant and the Mandate Agreement;
substitution of the United Nations for the Council and Permanent Mandates Commission, as
regards report, accountability and supervision ; review of reports by the Trusteeship Council.
It is equally certain that the Union was not ready -to agree to an arrangement involving these
elements.
In these circumstances, it is necessary to conclude that there was no arrangement agreed
between the Union and the United Nations, in the matter of report, accountability and
supervision.[p172]
In the absence of such an arrangement, the only other possible bases for the obligations in
question would be succession by the United Nations to the functions, powers and
responsibilities of the League in respect of Mandates. Such a succession could not be based
upon the provisions of the Charter, because, as I have stated above, no provisions of the
Charter could legally affect an institution founded upon the Covenant, or impair or extinguish
legal rights and interests of those Members of the League which are not members of the
United Nations. It could not be based on implications or inferences drawn from the nature of
the League and the United Nations or from any similarity in the functions of the organizations.
Such a succession could not be implied, either in fact or in law, in the absence of consent,
express or implied by the League, the United Nations and the Mandatory Power. There was no
such consent.
Reference to the terms of the Resolution of the General Assembly, February 12th, 1946, XIV-
1 (1), Clause 3 C, shows that the General Assembly's action was inconsistent with the doctrine
of succession. Paragraph 3 read :
"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."
The decision C read :
"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."
The Mandate involves functions and powers of a political character. It is founded upon a treaty
and an agreement. The parties are the League and the Union of South Africa. In substance,
decision C provides that the General Assembly will examine a request from the Union of
South Africa and other interested parties that the United Nations should assume League
functions, as regards report, accountability and supervision over the South-West African
Mandate. No such request has been forthcoming, and the General Assembly has not had
occasion to act under decision C. The very existence of this express provision, however,
makes it impossible to justify succession based upon implicaion.[p173]
In the case of the League, there was no consent to succession in the case of Mandates ; and it
is impossible to imply consent, in view of the express provision of paragraph 4 of the
Resolution of April 18th, 1946, cited and discussed above, with regard to arrangements
between the United Nations and the Mandatory Powers. It will be observed that the provisions
of paragraph 4 are complementary to, and in complete accord with, those of decision C. This
may be explained by the fact that the members of the First Committee of the League, who
drafted the resolution, were fully aware of the provisions of decision C.
Accordingly, in the absence of an "arrangement agreed between" the United Nations and the
Union, and in the absence of succession by the United Nations to the political functions of the
League, in respect of the Mandates, I am obliged to conclude that the Union of South Africa is
not under an obligation, arising under the Mandate, to render annual reports, under paragraph
7 of Article 22 of the Covenant and Article 6 of the Mandate Agreement, to the United
Nations. For the same reasons, the Union is not under any obligation, arising under the
Mandate, as regards accountability to, and supervision by, the United Nations.
With regard to the so-called right of petition, the foregoing considerations would be
applicable. There are, however, additional reasons, which prevent me from concurring in the
answer given by the Court and the reasons by which it is justified. The regulation of petitions
was based upon rules of procedure adopted by the Council of the League on January 31st,
1923. Obligations which the Union may have incurred as a result of the adoption of these rules
cannot possibly be regarded as "international obligations under the mandate for South-West
Africa", within the meaning of Question (a). Further, even if the United Nations succeeded to
the functions of the League, in respect of mandated territories, it would not follow that the
General Assembly would be bound by the rules of procedure adopted by the Council of the
League, as regards petitions or any other aspects of the problem. The General Assembly could
make its own rules, acting under the provisions of Article 21 of the Charter.

(Signed) J. E. Read. [p174]
DISSENTING OPINION OF Mr. ALVAREZ
[Translation.]
I new criterion which must be applied to the questions before the Court.
The questions which are now referred to the Court in the request for advisory opinion from the
General Assembly of the United Nations are of great importance not only from the point of
view of international law, but also from the social, economic and international political points
of view.
From the social point of view, for the first time in the history of mankind, States, through a
great change in their international outlook, have proclaimed (Article 22 of the Covenant of the
League of Nations) that the well-being and the development of peoples not yet able to govern
themselves form, for the civilized countries, a sacred trust of civilization. To this end, they
established a new institution, the Mandates System. This idea has been taken up and
developed in the United Nations Charter in the establishment of the Trusteeship System.
From the economic point of view, one of the concerns of Our time is the improvement of
under-developed territories in order to obtain the best possible results for the benefit of the
general community. An economic conference has just opened where the delegates of almost
every nation of the world have established a programme of technical aid to those peoples and a
financial pool has been created to that effect.
From the international political point of view, the institutions of Mandate and Trusteeship
have considerably modified the international position of certain continents by preparing many
backward peoples for independent statehood.
But it is from the angle of international law that the creation of those institutions presents the
greatest interest. The spirit and certain characteristics of what may be called the new
international law have thereby been introduced in international law. In the same spirit, and by
resorting to the same characteristics, it will be possible in future to create similar institutions
for the general or continental interests.
II
The questions concerning the Territory of South-West Africa submitted to the Court for
opinion have been complicated and even made obscure in the discussions which have taken
place for several years' between various Governments and in the Councils and Assemblies of
the League of Nations and the United Nations.[p175]
They have been dealt with from various angles : from the angle of private law, when the
nature of the mandate, its termination, the nature of the obligations, the lapsing of contracts,
etc., were considered, and from the angle of international law, when sovereignty, treaties and
their purposes, certain provisions of the League of Nations Covenant and the United Nations
Charter were being discussed. This was done on the basis of traditional views in these matters,
and by applying the classical method of interpretation of conventions and treaties.
In fact, the question is an entirely new one and comes under the new international law. It is the
duty of the Court therefore to consider it, not only in the light of principles laid down in the
Covenant or the Charter, but also, as we shall see later, in accordance with the nature, aims
and purposes of this law.
III
For this reason, we must first consider briefly the nature of this new international law and the
This law is the result and outcome of the great transformations in the life of nations which
have taken place since the first world war, and mostly after the 1939 cataclysm.
The community of States, which had hitherto remained anarchical, has become in fact an
organized international society. This transformation is a fact which does not require the
consecration of an international agreement. This society consists not only of States, groups
and even associations of States, but also of other international entities. It has an existence and
a personality distinct from those of its members. It has its own purposes. On the other hand,
international relations present various aspects : political, economic, psychological, etc., and to-
day possess a dynamic character, complexity and variety which they did not show formerly.
All these transformations have had a great influence on international law : a new international
law has emerged. It is new for three reasons : it includes new questions in addition to
traditional questions in a new form ; it rests on the basic reconstruction of fundamental
principles of classical international law, and brings them into harmony with the new
conditions of the life of peoples ; finally, it is based on the new social régime which has
appeared, the régime of interdependence, which is taking the place of the individualistic
régime which has, up to now, provided the basis of both national and international life. This
new régime has given rise to what may be called social interdependence which is taking the
place of traditional indi7iidzialism. I prefer the expres-[p176]sion "social interdependence" to
"social solidarity" which has a variety of connotations.
The purposes of the new international law, based on social interdependence differ from those
of classical international law : they are to harmonize the rights of States, to promote co-
operation between them and to give ample room to common interests; its purpose is also to
favour cultural and social progress. In short, its purpose is to bring about what may be called
international social justice.
To achieve these purposes this law must lay stress on the notion of obligation of States, not
only between themselves, but also toward the international community. It must limit absolute
international sovereignty of States according to the new requirements of the life of peoples,
and must yield to the changing necessities of that life.
Because of these characteristics the new international law is not of an exclusively juridical
character. It has also political, economic, social, and psychological characteristics.
It is not a mere abstraction, a doctrinal speculation without any foundation in fact, as some
would have it. In reality it takes root in the new conditions and the new requirements of the
life of peoples in numerous recent social institutions of several countries in 'the international
judicial conscience which has been awakened mainly since the upheaval of 1914 ; in the
Covenant of the League of Nations and in particular in the United Nations Charter (preamble,
Art. 1, 2, Chapters IV, V, IX, X, XI, XII, XIII, etc.) and in several resolutions and drafts of the
Assemblies of those organizations ; and in the declarations of the heads of former allied
countries which have subsequently received the support of the people. It also springs from
various resolutions of the last Pan-american Conferences, some of which tend to incorporate
new great moral, political and social ideas, either in continental international law, or in world
international law.
Therefore, the new international law has a more positive basis than classical international law,
which rests on principles and rules often derived from speculation and from doctrines and
customs, many of which have become obsolete.
This new law is in formation. It is for the International Court of Justice to develop it by its
judgments or its advisory opinions, and in laying down valuable precedents. The theories of
jurists must also share in the development of this law.
At this point, I want to stress the idea which I have already expressed in previous individual
opinions : the Court must not apply international law such as it existed before the upheavals of
1914 and 1939 but must apply the law which actually exists to-day. [p177]
Indeed, since that time the international life of peoples and, consequently, the law of nations
have consistently undergone profound changes and have assumed new directions and
tendencies which must be taken into consideration.
The Court must, therefore, declare what is the new international law which is based upon the
present requirements and conditions of the life of peoples : otherwise, it would be applying a
law which is obsolete in many respects, and would disregard these requirements and
conditions as well as the spirit of the Charter which is the principal source of the new
international law.
In so doing, it may be said that the Court creates the law ; it creates it by modifying classical
law ; in fact it merely declares what is the law to-day. Herein lies the new and important
purpose of the Court.
The Court, moreover, already exercised this faculty of creating the law in its Advisory
Opinion concerning Reparation for injuries suffered in the service of the United Nations ; it
declared on that occasion that the United Nations was entitled to present an international claim
; until that time only States had been recognized as possessing this right.
The action of the International Court of Justice combined with the action of the Assembly of
the United Nations which has very broad international powers (Article 10 of the Charter) will
greatly contribute to the rapid development of the new international law.
IV
To find the solution of the questions put to the Court in the present case, let us now consider,
according to the elements of the new international law, what are the characteristics of
international obligations and how conventions and rules of international law are to be
interpreted.
Because the new international law is based on social interdependence, many cases may be
found in which States are under obligations without the beneficiary of the rights relating to
these obligations being known. The beneficiary is the international community. For the same
reason it is not necessary that all obligations be expressly laid down by a text. Because of the
diversity and the complexity of international relations it is not possible to provide for every
contingency. Many obligations result from the very nature of institutions or the requirements
of social life.
On the other hand, besides legal obligations there are also moral obligations and obligations of
a political international character or duties. The latter derive from the interdependence of
States and the international organization. The duty to co-operate indicated in the United
Nations Charter is a typical example of this last [p178] category of obligations. The non-
performance of such obligations may result in political sanctions applied by the United
Nations.
In each case, the Court must decide whether a State has certain obligations or not, and what is
their nature.
The conventions and rules of international law are to be interpreted by applying a criterion
different from that which hitherto prevailed.
At present, the strict literal sense of the text is sought and to clarify it, recourse is had to
travaux préparatoires. Use is also made of- postulates, axioms and traditional precepts of
general law, in particular of Roman law, and even natural law (except in Anglo-saxon
countries where attention is mostly paid to diplomatic precedents), and of postulates, axioms
and precepts of classical international law. Not only are the immediate consequences not
drawn from these elements, but deductions are made, by pushing logic too far. To this end a
whole juridical technique is brought into play, and as a result, solutions are often found which
are unreasonable and unacceptable to public opinion.
Important studies have recently been published by publicists of authority on the interpretation
of treaties, but they follow the traditional line and, therefore, are open to criticism.
In future, postulates, axioms and general principles of law or of international law, which have
hitherto been accepted may be relied upon only after they have been subject to the test of close
scrutiny because many of them have become obsolete and may be replaced by others which
will provide the basis of the new international law. This work of reconstruction is mainly a
matter of doctrine, but it must also be effected by the International Court of Justice whenever
the opportunity arises.
Extreme logic, dialectics and exclusively juridical technique must also be banished. Reality,
the requirements of the life of nations, the common interest, social justice, must never be
forgotten.
An isolated text may seem clear, but it may cease to be so when it is considered in relation to
other texts on the same question and with the general spirit of the institution concerned. In the
latter case the spirit must take precedence.
It may also happen that a text contains expressions of a clearly defined legal scope, but that,
by reason of the nature of the institution, these expressions appear to have been taken in a
different sense. This is exactly the case of the questions now before the Court: the words
"Mandate" and "Trusteeship" have a different meaning in the Covenant and the Charter than
they have in domestic law.[p179]
Let us now consider the nature of the Mandate conferred upon the Union of South Africa and
its consequences on the questions before the Court in the light of the provisions of the
Covenant of the League of Nations and of the United Nations Charter, and the spirit of the
new international law. In this connexion I shall not dwell upon the declarations of the Union
Government or its representatives, these declarations having been examined in the Court's
Opinion.
Under Article 22 of the League of Nations Covenant the well-being and development of the
inhabitants of colonies and territories which, as a consequence of the war, had ceased to be
under the sovereignty of the States which formerly governed them, and were not capable of
standing by themselves under the strenuous conditions of the modern world, form a sacred
trust of civilization. The article goes on: "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". Article 22 also lays down the conditions
and guarantees for the performance of that great trust.
The United Nations Charter has not only taken up these ideas, but it has developed them
(Chapters XI and XII).
Our starting point must be the existence of the sacred trust of civilization. The ideas and aims
contained in this expression and the general principles of the new international law must be
Our compass in Our quest for the answers to the questions put to the Court. We must not
resort to a textual interpretation of certain articles of the Covenant or of the Charter, or to
minor considerations.
Article 119 of the Versailles Treaty provides that "Germany renounces in favour of the
Principal Allied and Associated Powers all her rights and titles over her oversea possessions".
The Mandate over South-West Africa established by the Council of the League on December
17th, 1920, says: "The Principal Allied and Associated Powers agreed that, in accordance with
Article 22 of the Covenant of the League of Nations, 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 afore mentioned."
The Union thus received not an ordinary mandate, but a sacred trust of civilization, which is
quite another thing. The act which has been created is not a fidei-commissum, a trust or a
contract deriving from any other similar national or international institution. The ordinary
Mandate is a contract mainly in the interests [p180] of the principal, regulated by the rules of
civil law, whereas the mission under consideration is an honorific and disinterested charge for
the benefit of certain populations. It is an international function regulated by principles which
conform to its nature. It is impossible, therefore to apply, even by analogy, the national rules
applicable to the Mandate or the other institutions which I have mentioned. Nor is it a treaty
between the League of Nations and the Union of South Africa. The League of Nations has
undertaken no obligation and has acquired very important rights indicated in the Mandate. It
has also other political rights which have not been expressly provided for, such as the right to
terminate the Mandate.
VI
Very important consequences follow from the sacred trust of civilization which is a
characteristic of the international Mandate and from the new international law, and these
consequences will help us permit to find the answer to the questions before the Court.
Here are the most important :
1° Since the creation of the Mandates System there are in international law four categories of
peoples : those which are still colonies or protectorates; those backward civilizations which
have not been placed under a Mandate or Trusteeship; those which have been placed under
one of those regimes ; and finally, those which have reached a sufficient degree of civilization
and are fully developed States. In the past the peoples of the second and third categories fell,
like those in the first category, under the domination of other peoples, for instance, the great
Powers. Now they are protected and must be prepared for independent life.
It is only to the peoples in the fourth category that international law grants certain attributes
which it does not grant to other groups, however important they may be : independence,
personality, sovereignty, legal equality. These attributes are inherent in the State and are
inalienable.
Because the peoples of the second and third categories which may be called "States in the
making" do not yet enjoy the status and the attributes of fully-developed States, we need not
attempt to determine, as has been done at length, where sovereignty resides, whether with
South-West Africa or with the Union of South Africa. In fact, no question of sovereignty is
raised : the question does not arise with regard to South-West Africa. As to the Union of
South-Africa, she cannot exercise a sovereignty which the Man-dated Territory does not
possess. She has not acquired any sovereignty over the Territory. She has only certain
faculties, particularly [p181] in matters of administration, under the mission which has been
entrusted to her.
2° The Court, in considering the questions before it, must examine critically the applicable
postulates, the fundamental elements, and the great principles of traditional international law.
In particular :
a) it must stress the pre-eminence of international law over domestic law ;
b) it must adapt the concept of sovereignty to social interdependence ;
c) it must recognize and declare that States may have certain obligations although these may
not be formally expressed in a text.
3° The question of the international status of mandated territories is entirely within the scope
of international law. It can in no way be said that it is part of the domestic jurisdiction of the
mandatory State. The matter must therefore be regulated by principles of international law.
Any act of the mandatory State contrary to international law or the nature of the Mandate
institution, such as a plebiscite, a more or less disguised annexation, etc., is null and void and
may even involve the liability of the State.
4° Whilst the traditional international law concerns itself with the problem of the succession of
States, it does not consider succession between international organs nor floes it consider
succession between international institutions because these are new problems and must be
dealt with according to the spirit of the new international law.
Three cases may arise :
A) An organization, for instance the League of Nations, is liquidated and is not replaced by
any other one. In that case there is no doubt that all subordinate organs cease to function : the
Council, the Assembly, etc. But the effects of resolutions adopted by them do not come to an
end. Likewise, certain institutions created by these organs continue. Therefore, Mandates
conferred continue in existence, and it is impossible to apply here the rules of private law to
the effect that the Mandate terminates with the disappearance of the mandator.
As we have seen, the Mandate created by the League of Nations is a sacred trust of
civilization, a social function which cannot terminate with the League of Nations, even if no
other organ takes its place. The countries which have created this institution must safeguard
those territories In the present and the future. Should they lose interest, these territories may
fall back into the position they occupied before they were placed under Mandate : they may be
colonized, even annexed by other States, including the former mandatory Power without this
constituting a violation of the rules of traditional international law.[p182]
B) An international organization like the League of Nations disappears and another one is
created, without any indication as to whether the latter replaced the former. If the first
organization has created an institution, such as the Mandate, having for its purpose the same
sacred trust of civilization as the Trusteeship created by the second institution, then the latter
must be considered as succeeding the former ipso facto. There can be no interruption in the
continuous performance of this trust.
C) The new organization shows in what conditions an institution which it has created will
succeed a similar institution created by the previous organization. In the present case the
Charter has declared that mandated territories will come under Trusteeship by virtue of
agreements between the United Nations and the former mandatory Power (Articles 75 and 77).
As long as this agreement has not been concluded the territorial status of South-West Africa is
that of a mandated territory with the obligations resulting therefrom for the Union of South
Africa. The Mandate, as I have already said, continues. I shall refer to this point again under
No. VII.
5° The mandatory State, in this case the Union of South Africa, cannot modify unilaterally the
international status of the territory under Mandate, South-West Africa, nor can it modify any
one of its obligations under the Mandate.
6° The question whether the Union of South Africa was under obligation to report on its
administration to the United Nations has been discussed. Some hold that this obligation
existed only with regard to the League of Nations, and that the latter's disappearance has put
an end to the resulting obligations. This reasoning, which is based on the application of
principles regulating the mandate in private law, cannot be accepted. The United Nations has
taken the place of the League of Nations and consequently the United Nations Assembly has
the right to request the presentation of the report and to exercise control and supervision over
the administration of the South-West African Territory. With regard to this report and control
we need not confine ourselves to the obligations under the Mandate. We may also consider
those resulting from the provisions of Articles S7 and 88 of the Charter.
7° The obligation for the Union of South Africa to transmit petitions from the inhabitants of
South-West Africa to the United Nations has been discussed at length. This obligation derives
from the nature of the Mandate conferred by the League of Nations. It need not have been
expressly provided for.
8° It may happen that a mandatory State does not perform the obligations resulting from its
Mandat?. In that case the United Nations Assembly may make admonitions, and if necessary,
revoke the Mandate. It has this right under Article 10 of the Charter. [p183]
9° The Assembly may terminate a mandate if it is established that the local population is
capable of governing itself, and it may do so in spite of the contrary opinion of the mandatory
State.
10° The United Nations, Assembly may also terminate a mandate for political considerations.
International Mandates are not, as we have already said, ordinary contracts or treaties. They
are a trust, a social function. The Assembly having the faculty to confer that trust has also the
faculty to revoke it. In so doing, however, it must not abuse its right.
11° The mandatory State, in this case the Union of South Africa, cannot unilaterally annex the
mandated territory (South-West Africa) nor can it proclaim its independence.
12° It may happen that the mandatory Power reports that the local population over which it
exercises a mandate will never be able, for anthropological or other reasons, to reach a
sufficient degree of civilization to become capable of self-government. In that case, the United
Nations Assembly should call for an enquiry and if these statements are proved to be true, it
may authorize the mandatory Power to annex this territory, for it cannot remain without a
protector or a guide.
VII
We must give special attention to the question of whether the Union of South-Africa is obliged
to transform the Mandate conferred upon it by the League of Nations into Trusteeship by
concluding an agreement with the United Nations. We must determine the exact scope and the
spirit of Articles 75 and 77, and even of Article 80, No. 2, of the Charter.
It has been said that under these Articles the Union of South Africa has no legal obligation to
conclude an agreement with the United Nations to transform its Mandate into Trusteeship, and
that it only has the obligation to negotiate this agreement.
In my opinion the Union of South-Africa is under the legal obligation not only to negotiate
this agreement, bat also to conclude it. This obligation derives from the spirit of the Charter,
which leaves no place for the future co-existence of the Mandates System and the Trusteeship
System. The latter alone must exist as being the more appropriate.
On the other hand, the word "may" in Article 75 and the sentence "as may be placed
thereunder [the Trusteeship System] by means of subsequent trusteeship agreements" in
Article 77, referred to in support of the view that there is no legal obligation [p184] to
conclude such an agreement, may also apply to the case when this obligation exists.
What is to be done if no agreement can be reached ? It then becomes necessary to refer to
arbitrat2ori. It would not be possible to admit that, in an organized society under the régime of
interdependence, an agreement which is intended to fix an important international status
cannot be established solely because of the opposition, the negligence or the bad faith of one
of the parties. One would then have to seek an amicable solution, or to submit the case to the
International Court of Justice.
Even admitting that there is no legal obligation to conclude an agreement, there is, at least, a
political obligation, a duty which derives from social interdependence and which can be
sanctioned by the Assembly of the U.N.
This is the place to refer to the League of Nations Assembly Resolution of 1946, which said :
"The Assembly .... 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."
VIII
The foregoing considerations make it possible to formulate the answers to the questions put to
the Court by the United Nations Assembly :
I. The international status of the South-\Vest African territory is the same as that which existed
under the League of Nations until an arrangement is agreed upon between the Union of South
Africa and the United Nations.
(a) The Union of South Africa has therefore the same international obligations as under the
Mandate conferred upon her by the League of Nations and those resulting from Article 22 of
the Covenant. In particular it is under obligation to report on its administration to the United
Nations Assembly. The latter is qualified to exercise control in this respect. It has this faculty
under Article IO of the Charter.
(b) The provisions of Chapter XII of the Charter apply to the Territory of South-West Africa.
This is in harmony with the spirit of the Charter.
The Union of South Africa under Articles 75, 77 and 80, No. 2, of the Charter, and especially
in accordance with the spirit of the Charter, has the legal obligation to negotiate and conclude
an agreement with the United Nations to place South-West Africa under Trusteeship. If this
agreement cannot be made, the case must be referred to arbitration. [p185]
Even if it be admitted that South Africa is under no legal obligation to conclude this
agreement, it has at any rate the political international obligation or a duty to conclude such an
agreement. If it is impossible to reach such an agreement, the United Nations must then take
the appropriate measures which it is empowered to take under Article IO of the Charter.
(c) The Union of South Africa is not competent unilaterally to modify the international status
of South-West Africa. This competence belongs to the Union of South Africa acting in concert
with the United Nations under Article 79 of the Charter.
(Signed) A. Alvarez. [p186]
DISSENTING OPINION OF Mr. DE VISSCHER
[ Translation.]
I regret that I am unable to concur in the second part of the Court's answer to the question
under letter (b). I concede that the provisions of Chapter XII of the Charter do not impose on
the Union of South Africa a legal obligation to conclude a Trusteeship Agreement, in the sense
that the Union is free to accept or to refuse the particular terms of a draft agreement. On the
other hand, I consider that these provisions impose on the Union of South Africa an obligation
to take part in negotiations with a view to concluding an agreement. In this respect, the Court's
answer falls short of XI opinion on the obligations resulting from the Charter for the
Mandatory Power. My opinion is based on an interpretation of tests which differs from that
adopted in the Court's Opinion.
The Opinion says : "The Charter has contemplated and regulated only a single system, the
International Trusteeship System. It did not contemplate or regulate a co-existing Mandates
System." Furthermore, the relevant articles of Chapter XII dealing with the International
Trusteeship System are clearly imperative: Article 75 : "The United Nations shall establish
under its authority an International Trusteeship System...." , "L'Organisation des N'ations
Unies établira, sous son autorité, un régime de tutelle...." ; Article 77 : "The Trusteeship
System shall apply...." ; "Le Régime de Tutelle s'appliquera....".
The Mandates System was maintained by Article 80 of the Charter only as a transitional
measure. The terms of the first paragraph alone : "and until such agreements have been
concluded" exclude the possibility of prolonged co-existence of the two régimes. As to Article
80, paragraph 2, its legal bearing in this connexion is clearly defined. It provides that the
preceding paragraph, which maintains the status quo until such agreements have been
concluded (the so-called safeguarding clause), "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 as provided for in Article 77".
I consider that the Opinion does not give to these provisions their proper place in the general
framework of the provisions of Chapter XII, and, as a result, does not deduce from them all
the consequences which follow therefrom. The Opinion minimizes their import to the point of
considering them merely as expres-[p187] sing the expectation that "the mandatory States
would follow the normal course indicated by the Charter, namely, conclude Trusteeship
Agreements".
It is an acknowledged rule of interpretation that treaty clauses must not only be considered as a
whole, but must also be interpreted so as to avoid as much as possible depriving one of them
of practical effect for the benefit of others. This rule is particularly applicable to the
interpretation of a text of a treaty of a constitutional character like the United Nations Charter,
above all when, as in this case, its provisions create a well-defined international régime, and
for that reason may be considered as complementary to one another.
I cannot readily believe that the authors of the Charter would have warned the mandatory
Powers, by means of an express and particularly emphatic provision, that the negotiation and
conclusion of Trusteeship Agreements could not, by reason of the status quo temporarily
guaranteed under Article 80, paragraph 1, "give grounds for delay or postponement" if the
scope of this provision amounted simply to the expression of an expectation or, at the most, of
a wish or an advice. The terms of article 80, paragraph 2, do not favour this interpretation.
The negative character of the phrase is not an argument in favour of the absence of an
obligation. The warning given to the mandatory Powers that the status quo referred to in the
preceding paragraph gives no valid ground for delaying or postponing the agreements which,
as will be shown later, are the instrument for the application of the Trusteeship System, is
clearly, in my opinion, a direction to those Powers to be ready, at the earliest opportunity, to
negotiate with a view to concluding such agreements. What Article 80, paragraph 2, intended
to prevent was that a mandatory Power, while invoking on the one hand the disappearance of
the League of Nations, should refuse on the other hand to recognize the United Nations or to
consider submitting itself to the only régime contemplated in the Charter, namely, the
Trusteeship System. What this same provision intended to enact was that the mandatory Power
should take appropriate measures for the negotiation of a Trusteeship Agreement.
If, as has already been said, we must endeavour to reconcile the texts rather than to set them in
opposition to one another, and attempt to give each one its due by preserving its practical
effect within the system as a whole, we are led to the following conclusions.
The wording of Articles 75, 77 and 79 is permissive in the sense that the placing under
Trusteeship is contingent upon the conclusion of subsequent agreements, the mandatory Power
being free to accept or to reject the terms of a proposed agreement. [p188]
This is where the so-called "optional" character of the Trusteeship appears. It is impossible,
however, to reconcile these permissive provisions with Article 80, paragraph 2, and with the
clear intent of the authors of the Charter to substitute the Trusteeship System for the Mandates
System, without admitting that the mandatory Power, while remaining free to reject the
particular terms of a proposed agreement, has the legal obligation to be ready to take part in
negotiations and to conduct them in good faith with a view to concluding an agreement.
That an obligation so understood may form the valid and practical object of an international
undertaking has been clearly recognized by the Permanent Court of International Justice in the
following passage in its Advisory Opinion of October 15th, 1931 : "The Court is indeed
justified in considering that the engagement incumbent on the two Governments in conformity
with the Council's Resolution is not only to enter into negotiations, but also to pursue them as
far as possible with a view to concluding agreements." The Court added, however : "But an
obligation to negotiate does not imply an obligation to reach an agreement. “ [FN1]
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[FN1] Publications of the Permanent Court of International Justice, Series A/B, fasc. No. 42,
p. 116.
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It is reasonable to believe that Article 80, paragraph 2, which mentions "the conclusion" in
addition to "the negotiation", had no other meaning : the obligation to be ready to negotiate
with a view to concluding an agreement.
Nor should we overlook the psychological value of the opening of negotiations, particularly
when the object of the negotiations, as is the case here, is only to apply in practice principles
forming part of a pre-established international régime. The opening of such negotiations is
often a decisive step toward the conclusion of an agreement.
Difficulties of interpretation have arisen in connexion with the word "voluntarily" which
appears in Article 77 only in respect of territories in category (c). It seems to me impossible
that this provision, which is so clearly in contrast with the absence of any similar indication
regarding territories in categories (a) and (b), should have been inserted without any definite
purpose and should not correspond in the general framework of the system to a. well-defined
interest.
The word "voluntarily" has here the meaning of "spontaneously". It defines the unilateral act
by which a State, while free from any obligation, decides of its own initiative to place a
territory under the Trusteeship System by concluding a subsequent agreement as indicated in
Chapter XII. It would be distorting the natural meaning of the word "voluntarily" and
depriving it of its signification in the context to treat it as an equivalent of by agreement, thus
making it a synonym to the terms "by means [p189] of Trusteeship Agreements" which appear
at the beginning of Article 77, or the terms "a subsequent agreement" in paragraph 2 of the
same article. The Trusteeship Agreement is a condition common to the three categories of
territories enumerated by Article 77 as territories which may be placed under Trusteeship,
whereas, on the contrary, the voluntary decision, that is the spontaneous decision of a State to
place under Trusteeship a territory in category (c), is a condition peculiar to the last category.
The decision precedes the agreement; it is by no means identified with it.
The term "voluntarily" which thus finds its own place in the context and its practical effect,
shows that it is only with regard to territories in category (c) that the conclusion of a
Trusteeship Agreement has been contemplated by the Charter as being free from any pre-
existing obligation, even in the realm of negotiations. The difference in the wording is easy to
explain by taking into consideration the differences between the territories enumerated in
Article 77 from the point of view of the international interest which they respectively
presented at the time of the drafting of the Charter : those in category (a) were already subject
to an international régime, and moreover, were clearly known and defined ; those in category
(b) were detached from enemy States by the common victory of the Allied Powers. For
various reasons they both possessed an international element, which marked them out as being
prima facie the necessary objects of regulation by international agreement. The position of
territories in category (c) was quite different in this respect. Complete freedom of decision was
left to the States responsible for their administration to place them "voluntarily" under the
system and consequently to consent to negotiations to that effect, or to refuse to take part in
such negotiations.
The Charter has created an international system which would never have had more than
theoretical existence if the mandatory Powers had considered themselves under no obligation
to negotiate agreements to convert their Mandates into Trusteeship Agreements. In fact, apart
from instances of accession to independence and from the case of Palestine, all mandatory
Powers other than the Union of South Africa have consented to this conversion. The
obligation to be ready to negotiate with a view to concluding an agreement represented the
minimum of international co-operation without which the entire régime contemplated and
regulated by the Charter would have been frustrated. In this connexion one must bear in mind
that in the interpretation of a great international constitutional instrument, like the United
Nations Charter, the individualistic concepts which are generally adequate in the interpretation
of ordinary treaties, do not suffice. Under Article 76 of the Charter, "the basic objectives of the
Trusteeship System" conform to "the purposes of the United Nations laid down in Article I of
the present Charter". In [p190] recognizing its obligation to be ready to negotiate with a view
to concluding a Trusteeship Agreement, a mandatory Power, without thereby jeopardizing its
freedom to accept or refuse the terms of such an Agreement, co-operates in a particularly
important field in the attainment of the highest objectives of the United Nations.
(Signed) Ch. De Visscher. [p191]
DISSENTING OPINION OF JUDGE KRYLOV
[Translation.]
I share the Court's Opinion on the General Question and on Questions (a) and (c) put by the
Assembly. I would observe, however, that the analysis of Article 79, as given by the Court,
does not exhaust all the questions which may be raised in this connexion.
But I cannot concur in the second part of the reply given by the Court to Question (b). My
reasons are as follows :
In its Opinion, the Court notes that : (a) the Charter contemplated only the Trusteeship System
; (b) the Charter did not contemplate the continuance of the Mandates System in addition to
the Trusteeship System. On the other hand, the Court is of the opinion that the Charter does
not impose upon the Union of South Africa an obligation to place the Territory under the
Trusteeship System.

In its reasoning, the Court stresses the permissive wording of Chapter XII of the Charter, in
respect of the conclusion of Trusteeship Agreements. In my opinion, however, this is due to
the fact that the Territory under Mandate need not necessarily be placed under the Trusteeship
System, because it may be proclaimed independent (and this is the only other possibility).

I think that the letter and the spirit of the Charter alike lead to only one interpretation, namely:
that the Union of South Africa is under the legal obligation to negotiate with a view to
concluding a Trusteeship Agreement for placing the mandated Territory under the Trusteeship
System. In barring expressly the possibility of postponing or delaying the negotiation and the
conclusion of Trusteeship Agreements, Article 80, paragraph 2, implies the existence of a
legal obligation to negotiate with a view to concluding such agreements. Any other
interpretation would deprive Article 80, paragraph 2, of any meaning whatever, which would
be contrary to a well-established rule of interpretation of international treaties.

The obligation of the mandatory Power to negotiate with a view to concluding the Trusteeship
Agreement is also clearly demonstrated in Article 77, paragraph I (c), of the Charter. This
article declares that colonial territories may be placed under the Trusteeship System by States
responsible for their administration by voluntary procedure only. Thus, the Charter contains
different provisions for territories mentioned under (a) and (b) of this paragraph. In particular,
territories under Mandate [p192] are to be placed under the Trusteeship System by the method
already indicated (negotiation with a view to concluding an agreement).

The Court's answer to the second part of Question (b) may prolong the co-existence of the
Mandate System and the Trusteeship System. This would be contrary to the intentions of the
authors of the Charter, who expected mandatory States to follow without delay the normal
course indicated by the Charter and conclude Trusteeship Agreements.

(Signed) S. Krylov. [p193]