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INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
LEGAL CONSEQUENÇES FOR STATES OF THE

CONTlNUED PRESENCE OF SOUTH AFRICA IN
NAMIBIA (SOUTH WEST AFRICA)
NOTWTTHSTANDING SECWRlTY COUNClL
RESOLUTlON 276 (1970)
VOLUME 1
Request for Advisory Opinion, Documents, Written Statements
COUR INTERNATIONALE DE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
CONSEQUENCES JURIDIQUESPOUR LES ÉTATSDE

LA PR~SENCECONTlNUE DE L'AFRFQUE DU SUD
EN NAM1 BIE (SUD-OUEST AFRICAIN)
NONOBSTANT LA RÉSOLUTION 276 (1970)
DU CONSEIL DE SECURITE
VOLUME 1
Requtte pour avis consultatif, documents, exposés kcrits
X NAMlBlA (SOUTH WEST AFRICA)
Page
Tntroduction . . . . . . . . . . . . . . . . . . . . . . . 123
1. Proceedings of the General Assembly which led to the adop-
tion of resolution 2145 (XXI) . . . . . . . . . . . . . 124
Consideration of the question of South West Africa as a
mütter of priority . . . . . . . . . . . . . . . . . 124
Documents before the General Assembly in connection with
the item . . . . . . . . . . . . . . . . . . . . . . 124
(1) Report of the special corninittee and report of the sub-
cornmittee on South West Africa . . . . . . . . . 124
(2) Dsaft resolutions and amendments . . . . . . . . 125
(a) Draft resolution A/C.483 and Add . 1-3 and
arnendmenis which were adopted . . . . . . . 125
(b) A sub-amendment to the amendments contained
document AIL.488. which was not adopted . . . 129
. . (c) A draFt resolution which was not adopted . . . 130
Adoption of General Assernbly resolution 2145 ( X X I ) and
. details of the voting . . . . . . . . . . . . . . . . 130
. Summary of views expressed in the debate . . . . . . . 131
(1) Statemento made in introducing draft resolution
AlL.483 and Add . 1-3 . . . . . . . . . . . . . . 131
(2) Statement made in introducing amendments proposed
in document A1L.488 . . . . . . . . . . . . . . 131
(3) Statemenrs made in the course of discussion . . . . 131
(a) Sponsors of draft resolution AIL.483 and Add.
1.3 . . . . . . . . . . . . . . . . . . . . 131
(b) Delegations which did not sponsor draft resolu-
tion AlL.483 and Add . 1-3 but which voted in
. . ~ favour of the draft resolution . . . . . . . . 133
(i) Eastern European States . . . . . . . . . 133
(ii)Western European and other States . . . . 135
(1) Western.European States . . . . . . . 135
(2) Other States . . . . . . . . . . . . 137
(iii) Asian and African States . . . . . . . . 140
(iv) Latin American States . . . . . . . . . 141
(cl Delegations which abstained in the vote . . . . 143
(i) France . . . . . . . . . . . . . . . . 143
(ii) United Kingdom . . . . . . . . . . . . 144
(dj Dclegations which voted against the drafr reso-
lution AlL.483 and Add . 1-3 and the amend-
ments in document AIL.488 . . . . . . . . . 145
(i) Portugal . . . . . . . . . . . . . . . 145
(ii) South Africa . . . . . . . . . . . . . . 145
General observations on resolution 2145 (XXI) . . . . . 146
.
II Proceedings of the A d Hoc Cornmittee for South West kffica
estabrished bj, resolution 2145 @XI) of the General Assern-
bly . . . . . . . . . . . . . . . . . . . . . . . . .147
CONTENTS iY1'
Page
.Proposais submitted. to the A d Hoc Cornmittee . ... . 147
. ( O ) Proposa] by Ethiopia, Nigeria, Senegal and the
.United Arab Republic . . . . . . . . . . . . . 147
. .(b) Proposal by Chile and Mexico . , . . . . . . . . 148
.(cj Proposai by Canada, Italy and the United States . . 148
Transmission OF the three proposals to the General Assem-
bly. . . . . . . . . . . . . . . . . . . . . . . . 148
The propositions underlying ail-three proposals . . . . . 148
Differences of view on praciical action . . . . . . . . . 149
Subjects on which unaniniity of view existed in the Ad Hoc
Cornmittee . . . . . . . . . . . . . . . . . . . . 149
, Proceedings of the fifth special session of the General Assem-
.bly which led to the adoption of resolution 2248 (S-Vj of 19
May 1967. . . . . . . . . . . . . . . . . . . . . . 150
Documents before the General Assembly in connection with
the item report of the A d Hoc Cornmittee for South West
Africa . . . . . . . . . . . . . . . . . . . . . . 150
Draft resolutions . . . . . . . . . . . . . . . . . . 150
.
Draft resolution AIL.516IRev. 1 . . . . . . . . . 150
Draft resolution AlL.517 . . . . . . . . . . . . . 151
.
Adoption of resolution 2248 (5-V) . . . . . . . . . . 151
Szatements in the general debaieand explmations of vote. . 151
Sraiements by CO-sponsors of draft resolution AIC.5161
.
Rev. t . . . . . . . . . . . . . . . . . . . . 151
Statements by delegations which voted in favour of but
did not CO-sponsordraft resolution AIL.516IRev. I . . 153
'Statetnents by permanent members afthe Security Council
abstaining in the vote upon draft resolution AIL.5161
Rev. 1 . . . . . . . . . . . . . . . . . . . . . 154
Statements by Western European and other States (other
than permanent members of the Security Council) ab-
staining in the vote. upon draft remlution A/L.516/Rev.
1 . . . . . . . . . . . . . . . . . . . . . . . 154
Statements by rnetnbers of the Afro-Asian group abstain-
ing in the vote upon draft resolution A./L516/Rev. I . . 156
Statements by members of the Eastern European group
abstaining in the vote upon draft resoIution A/L.S16/
Rev. 1 . . . . . . . . . . . . . . . . . . . . . 156
Statement opposing the adoption of draft resolution AIL.
5161Rev.1 . . . . . . . . . . . . . . . . . . . 157
Statements by delegations absent durlng the vote upon
draft-resolution AIL.SI6IRev. 1 . . . . . . . . . . 157
General observations on General Assenibly resolution 2248
(S-v>. . . . . . . . . . . . . . . . . . . . - . . 157
, Survej~of General Assembly resolutions relating to Namibia
adopted subsequent ta GeneraI Assembly resolutions 2145
(XXI} and 2248 (S-V) , . . . . . .; . . . . . . . . . . 158
Resolutions 2324 (XXri) and 2325 (XXII) of 16 December
1967 . . . . . . . . . . . . . . . . . . . . . .. 158
NAMIBIA (SOUTH WEST AFRICA)
Page
Resolution 2324 (XXII) . . . . . . . . . . . . . . . 158
Resolution 2325 (XXII) . . . . . . . . . . . . . . . 158
Resolution 2372 (XXIl) of 12 June 1968 . . . . . . . . 158
Resolution 2403 {XXILl) of 16 December 1968 . . . . . . 159
Resolution 2498 {XXIV) of 31 October 1969 . . . . . . . 159
ResoIution 2678 [XXV) of 9 December 1970 . . . . . . . 150
V . Praceedings leading fo Security Council resolution 245
(1968) . . . . . . . . . . . . . . . . . . . . . . . 160
Request for a meeting of the Security Council . . . . . . 160
Meeting of the Security Council . . . . . . . . . . . . 161
Documents before the Securjiy Council in çonnection with
the question considered . . . . . . . . . . . . . . . 161
Adoption of Security Cowncil resolution 245 (1968) . . . . 161
Sumrnary of views expressed in the debate . . . . . . . . 161
General observations on Security Council resolution 245
(1968) . . . . . . . . . . . . . . . . . . . . . . 163
VI . Proceedings leading to Secürity Council resolution 246
(1968) . . . . . . . . . . . . . . . . . . . . . . 1 6 4
Meetings of the SBcurity Council . . . . . . . . . . . . 164
Documents before. the Security Council . . . . . . . . . 164
(a) Communications and reports . . . . . . . . . . 164
( b ) Draft resolution SI8429 and amendments . . . . . 184
Adoption of Seruriiy Council resolution 246 (1968) . . . . 166
Provision in resolution 246 (1968) referring to General As-
sernbly resolution 2145 (XXT) . . . . . . . . . . . . 166
Summary of vicws expressed in the debate . . . . . . . . 166
Members of the Security Council . . . . . . . . . . . . 167
States not members of the Security Council . . . . . . . 170
General observations on Security Council resolution 246
(1968) . . . . . . . . . . . . . . . . . . . . . . 171
VI1. Proceedings leading to Security Council resolution 264
(1969) . . . . . . . . . . . . . . . . . . . . . . 171
Meetings of the Security Council . . . . . . . . . . . . 171
Documents before the Security Council . . . . . . . . . 172
Communications . . . . . . . . . . . . . . . . . . 172
Draft iesolution . . . . . . . . . . . . . . . . . . 172
Adoption of Security Council resolution 264 (1969) . . . . 173
Summary of views expressed in the debate . . . . . . . . 173
General observations on Security Corincil resolution 264
(1969) . . . . . . . . . . . . . . . . . . . . . . 177
VIII. Proceedings leading ro Security Council resolution 269
(1969) . . . . . . . . . . . . . . . . . . . . . . 177
Request for a meeting of the Security Council . . . . . . E77
Meetings of the Security Council . . . . . . . . . . . . 178
Documents before the Securiry Council . . . . . . . . . 178
Page
. Les responsabilités sptciales des ,Nations Unies A l'égard du
peuple et du territoire de la Namibie . . . . . . . . . . . 217
Le rble de I'Assemblie gknérale . . . . . . . . . . . . . . 218
Le droit du peuple de Namibie a I'autodetermination et i l'indé-
pendance . . . . . . . . . . . . . . . . . . . . . . . 220
III . La prksence continue de l'Afrique du Sud en Namibie . . . . 225
A quel titre l'Afrique du Sud est présente . . . . . . . . . . 225
. Le r8le du Conseil de sécuritt . . . . . . . . . . . . . . . 237
L'occupation illégale . . . . . . . . . . . . . . . . . . . 234
La responsabilité de l'Afrique du Sud . . . . . . . . . . . 235
IV . Conséquences juridiques pour les Etats . . . . . . . . . . 237
Autorité territariale . . . . . . . . . . . . . . . . . . . 237
Relations diplomatiques, cansulaires et autres . . . . . . . . 238
Traitks et accords internationaux . . . . . . . . . . . . . 239
CC Relations )) et activités relatives au commerce. aux investisse-
ments et au tourisme . . . . . . . . . . . . . . . . . . 241
Obligations correspondantes . . . . . . . . . . . . . . . 242
V . Conclusion . . . . . . . . . . . . . . . . . . . . . . . 245
'
Annexe A: Résolutions adoptées par l'Assemblée gknérale concer-
nant expressernent la Namibie (Sud-Ouest africain) . . . . . . . 247
Annexe B: Lois adoptées par le Parlement sud-africain et censées
s'appliquer A la Namibie. qui ont kté promulguées en Nainibie ou
dont l'application aurait été étendue a la Nainibie après octobre
.1966 . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
ETUDE DES DEBATS DE L'ASSEMBLÉE DE SECU-
C ~ N É R A L E ET DU CONSEIL
RIT^ RELATIFS À LA CESSATION DU MANDAT SUR LA NAMIBIE
ET MESURES
A
PRISES X LA SUITE DE CES DEBATS (DOCUMENT SOUMIS LA COURINTER-
GEN~RAL
NATIONALE DE JUSTICEAU NOM DU SECR~TATAIRE DE L'ORGA-
NISATION DES NATIONS UNIES) . . . . . . . . . . . . . . . . .
260
Intfoduction . . . . . . . . . . . . . . . . . . . . . . . . 260
. 1. Débats qui ont conduit il'adoption de la résolution 2145
(XXI) de l'Assemblée génCrale . . . . . . . . . . . . . . 261
Examen de la question du Sud-Ouest africain en prioritk . . 261
Documents dont l'Assemblée générale était saisie A l'occasion
de l'examen de la question . . . . . . . . . . . . . . 261
1) Rapport du Comité spécial et rapport du Sous-Comité du
Sud-Ouest africain . . . . . . . . . . . . . . . . . . 261
2) Projets de resolutions et amendements . . . . . . . . . 262
a) Projet de résolution AIL.483 et Add . 1 à 3 et amende-
ments qui ont été adoptés . . . . . . . . . . . . . 262
h ) Sous-amendement aux amendements contenus dans le
document AIL.448, qui n'a pas été adopté . . . . . . 267
c,J Projet de rtsolution qui n'a pas tté adopté . . . . . . 267
Adoption de la résolution 2145 (XXI) de I'Assernblte générale
et analyse du vote . . . . . . . . . . . . . . . . . . 267
Résumé des vues exprimées lors du débat . . . . . . . . . 268
1) Dkclarations faites à l'occasion de la prksentation du
projet de résolution AIL.483 et Add . 1 A 3 . . . . . . 268
XVI NAMIBIA (SOUTPI WEST AFRICA)
Page
.
Adoption de la rtsolutiori 22448 (CS-V) . . . . . . . . . . 290
Déclarations faites au cours de la discussion gtnérale er expli-
cations de vote. . . . . . , . . . . . , . . . . . . . 240
Déclarations faites par des délégations iîgiirant au nombre
des auteurs du projet de résoIution A/L.516/Rev. I . . . 290
Déclarations faites par des délégations qui ont votéen faveur
du projet de réso4ution AlL.5 1 GIRev. 1 mais qui ne figu-
raient pas au nombre de ses auteurs . . . . . . . . . 292
Déclarations faites par les membres permanents du Conseil
de stcurite qui se sont abstenus lors du vore sur le projet
de résolution AIL.516lRev. 1 . . . . . . . . . . . . 293
Dkclarations faites par des Etats de l'Europe de l'Ouest et
par d'autres Etats (autres que les membres permanents du
Conseil de sécurité) qui se sont abstenus lors du vote sur
Ie projet de rksolution A/L.S16/Rev. 1 . . . . . . . . 294
Déclarations faites par des membres du Croupe afro-asia-
tique qui se sont abstenus lors du vote sur le projet de
résolution AIL.5161Rev. 1 . . . . . . . . . . . . . . 295
Déclarations faites par les Etats de l'Europe de l'Est qui se
sont abstenus lors du votc sur le projet de rksolution
A/L.Sl6jRev. 1 . . . . . . . . . . . . . . . . . . 296
Otclaratian Faite par une déltgation opposée A l'adoption du
projet de rtsolution AlL.516IRev. 1 . . . . . . . . . 296
Dtclarations faites par des dtlégations absentes lors du vote
sur le projet de résolution AIL.5161Rev. 1 . . . . . . . 296
Observations générales concernant la résolution 2248 (S-V) de
l'Assemblée générale . . . . . . . . . . . . . . . . . 297
IV. Etude des rksolutions adoptées par l'Assemblée gknérqale au
sujet de la Namibie postérieurement aux résolut ions 2145 (XXT)
et 2248 (S-V) de l'Assemblée générale, . . . . . . . . . . 297
Résolutions2324(XXII)et2325(XXII)du 16décembre1967 . 297
Résolution 2324 (XXII) . . . . . . . . . . . . . . . . 297
Résolution 2325 (XXII) . . . . . . . . . . . . . . . . 297
Rtsolution 2372 (XX11) du 12 juin 1968. . . . . . . . . . 298
RésoIution 2403 (XXIIi) du 16 decembre 1968. . . . . . . 299
Résolution 2498 (XXIV) du 3 1 octobre 1969 . . . . . . . . 299
Résolution 2678 (XXV) du 9 décembre 1970 . . . . . . . . 299
V. D6bats qui ont abouti à I'adoption de la résolution 245 (1968)
du Conseil de sécurité . . . . . . . . . . . . . . . . . 300
.
Demande de réunion du Conseil de sécurité . . . . . . . 300
.
Réunion du Conseil de sécurité . . . . . . . . . . . . 300
Documents dont le ConseiI de stcurité était saisi pour l'examen
de la question . . . . . . . . . . . . . . . . . . . . 300
Adoption de la résolution 245 (1968) du Conseil de séciaité . 301
Résumt des vues exprimées au cours de la discussioii . . . . 301
Observations générales concernant la rksolution 245 (1958) du
.
Conseil de sécuritt . . . . . . . . . . . . . . . . . 303
VI. Débats qui ont abouti l'adoption de la résolution 246 (1968)
du Conseil de sécurité . . . . . . . . . . . . . . . . . 303
COmENTS XVII
Page
Demande de réunion du Conseil de sécurité . . . . . . . . 303
Réunions du Conseil de sécurité . . . . . . . . . . . . . 304
Documents dont le Conseil de sécurité était saisi . . . . . . 304
a) Lettres et rapports . . . . . . . . . . . . . . . . 304
b) Projet de résolution SI8429 et amendements . . . . . 304
Adoption de la résolution 246 (1968) du Conseil de sécurité . 306
Dispositions de la résolution 246 (1968) se référant a la résolu-
tion 2145 (XXI) de l'Assemblée générale . . . . . . . . 306
Résumé des vues exprimées au cours de Ia discussion . . . . 306
E m s membres du Conseil de sécurité . . . . . . . . . . 307
Erats non membres du Conseil de skcurité . . . . . . . . 310
Observations générales coricernant la résolution 246 (1968) du
Conseil de sécurité . . . . . . . . . . . . . . . . . . 311
VIT. Débats qui ont abouti a l'adoption de la résolution 264 (1469)
du Conseil de stcuritt . . . . . . . . . . . . . . . . .
Demande de rkunion du Conseil de sécurité . . . . . . . .
Réunions du Conseil de sécurité . . . . . . . . . . . . .
Documents dont le Conseil de sécurité était saisi . . . . . .
Lettres . . . . . . . . . . . . . . . . . . . . . . .
Projet de résolution . . . . . . . . . . . . . . . . .
Adoption de la résolution 264 (1969) du Conseil de stcurité .
Rksumt des vues exprirnkes au cours de la discussion . . . .
Observations générales concernant la résolution 264 (1969) du
Conseil de sécurité . . . . . . . . . . . . . . . . . .
VI11. Débats qui ont abouti a l'adoption de la résolution 269 (1969)
du Conseil de sécurité . . . . . . . . . . . . . . . . .
Demande de réunion du Conseil de sécurité . . . . . . . .
Réunions du Conseil de sécurité . . . . . . . . . . . . .
Documents dont le Conseil de sécuritk était saisi . . . . . .
Lettres et rapporis . . . . . . . . . . . . . . . . . .
Projet dc rksol~ition . . . . . . . . . . . . . . . . .
Adoption de la résolution 269 (1969) du Conseil de sécurité .
Résumé des vues exprimées au cours de. la discussion . . . .
Conscil de sécurité . . . . . . . . . . . . . . . . . .
IX. Débats qui ont abouti l'adoption de la résolution 276 (1970)
du Conseil de sécuriit . . . . . . . . . . . . . . . . .
Demande dc rkunion du Conseil de stcurité . . . . . . . .
Rkunions du Conseil de sécurité . . . . . . . . . . . . .
Documents dont le Conseil desécuritéétait saisi . . . . . .
Lettres et rapports . . . . . . . . . . . . . . . . . . 324
Projet de résolution . . . . . . . . . . . . . . . . . 325
Adoption de la résolution 276 (1970) du Conseil de stcurité . 326
Résumé des vues exprimées au cours de la discussion . . . . 326
XVIII NAMIBIA (SOUTHWEST AFRICA)
Page
X . Débats qui ont abouti a l'adoption de la résolution 283 (1970)
du Conseil de sécuritk . . . . . . . . . . . . . . . . . 332
Demande de réunion du Conseil de skcurité . . . . . . . . 332
Réunion du Conseil de sécurité . . . . . . . . . . . . . 332
Documents dant le Conseil de sécuritt etait saisi . . . . . . 332
Rapport du Sous-Comitk ad hoc . . . . . . . . . . . . 332
Projets de rCs~lution . . . . . . . . . . . . . . . . . 332
i) Projet de résolution SI9891 . . . . . . . . . . . . 332
ii) Projet de résolution SI9892 . . . . . . . . . . . . 333
Adoption de la résolution 283 (1970) du Conseil de sécurité . 333
Resunne des vues exprimaes au cours de la discussion . . . . 333
Observations générales concernant Ia résolution 283 (1970) du
XI. Debats qui ont abouti h l'adoption de la résoIution 284 (1370)
du Conseil de sécurité. . . . . . . . . . . . . . . . . . 338
Débats au sein du Sous-Coniite ad lzoc . . . . . . . . . . . 338
Débats du Conseil de sécurité a sa 1550' séarice . . . . . . 341
XII . Résumé de l'étude des débats . . . . . . . . . . . . . . 344
Annexe concernant les effets de i'abstention volontaire des membres
. permanents du Conseil de sécurité . . . . . . . . . . . . . . 346
W R I ~ E STATEMENT
N OF THE GOVERNMENT OF THE KINGDOM OF THE
NETHERLANDS . . . . . . . . . . . . . . . . . . . . . . . . . 350
STATEMENTOF THE GOVERNMENT
WR~TTEN OF THE POL~SH RE-
PEOPLE'S
PUBLIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354
W R ~ ESTATEMENT
N OF PAKISTAN
OF THE GOVERNMENT . . . . . . . . 355
WRITTENSTATEMEWTOF THE GOVERNMENT O F THE' HUNGARIANPEOPLE'S
REPUBLIC. . . . . . . . . . . . . . . . . . . . . . . . . . . 359
LETTERFROM T H E AMBASSADOR OFTHE CZECHOSLOVAK
SOCIAL~STREPUDLIC
TO THE PRESIDENT QF THE INTERNATIONAL OF JUSTICE. . . . . 361
COURT
OF THE GOVERNMENT
F ~ R ~ T T E NSTATEMENT . . . . . . . .
OF FINEAND
1. lntroductory rernarks . . . . . . . . . . . . . . . . . .
II . The legal consequences for South Africa . . . . . . . . . .
II1. The legal consequences for orher Mernbers of the United Nations
than South Africa . . . . . . . . . . . . . . . . . . . .
1V. The Iegal consequences for States not rnernbers of the United
Nations . . . . . . . . . . . . . . . . . . . . . . . .
Chapter 1. Introduction . . . . . . . . . . . . . . . . . . .
Chapter TT . The interpretation and modification of treaties . . . .
A . Introductory . . . . . . . . . . . . . . . . . . . . . . .
B. Interpretation of treaties . . . . . . . . . . . . . . . .
Page
II . Separate opinion of Judge Eustamante . . . . . . . . 695
TI1. Dissenting opinion of Judges Sir Percy Spendec and Sir
Cerald Fitzniaurice . . . . . . . . . . . . . . . . 696
IV . Dissenting opinion of Judgevan Wyk . . . . . . . . 698
V. The Judgment of the Court . . . . . . . . . . . . . 698
VI . Separate opinion of Judge Sessup . . . . . . . . . . 703
VI1. Sepasate opinion of Sudge Sir Louis Mbanefo . . . . . 704
VIII . Dissenting opinions of President Winiarski. Judges Basde-
vant and Morelli and Declaralion of Judge SpiropouEos . 705
.F. The '1966 Judgment and separate opinions . . . . . . . . . 706
1. General . . . . . . . . . . . . . . . . . . . . . 706
11 . The Sudgrnent of the Court . . . . . . . . . . . . . 705
( a ) The Court's analysis of the mandates in the context
of the Leapue system . . . . . . . . . . . . . .
. (b) The Court's view as to the events in the transitional
period 1945-1946 . . . . . . . . . . . . . . .
(c) "Whether the Court is entit led to engage in a process
of 'filling in the gaps"' . . . . . . . . . . . . . .
(d) Conclusion to be drawn from the Court's approach .
111. Separate opinion of Judge van Wyk . . . . . . . . .
IV . Dissenting opinion of Vice-President Wellington Koo . .
Y . Dissenting opinion of Judge Tanaka . . . . . . . . .
V I . Dissenting opinion of Judge Jessup . . . . . . . . . .
VI1. Dissenting opinion of Judge Padilla-Nervo . . . . . .
VI11 . Dissenting opinion of Judge Sir Louis Mbanefo . . . .
G . Conclusion . . . . . . . . . . . . . . . . . . . . . .
Chapter X . The validity and legal effect of General Assembly reso-
lulion 2145 (XXI). . . . . . . . . . . . . . . . . . . . .
A. Introductory . . . . . . . . . . . . . . . . . . . . . .
B. The origin and m b i t of the powers of the General Assernbly . .
C . The powers of the General Assernbly in relation to the present
. . .que$tion. . . . . , , , . , , . +! i ........
D . The nature and legal effect of &neral Assernbly resoluiion
2145 (XXI) . . . . . . . . . . . . . . . . . . . . . .
E. Conclusion . . . . . . . . . . . . . . . . . . . . . .
Chapter. XI . .. The factual issues . . . . . . . . . . . . . . . .
. a . .
A. Intraductory . . . . . . : . . . . . . . . . . . . . . .
4 . .
B. The political background to the adoption of resolution 2145

wl). ........................
C . The attacks on South Africa's administration of the Territory .
1. General . . . . . . . . . . . . . . . . . . . . .
I I . Thc quality and sources of the çriticisrn against South
Africa'ç policles . . . . . . . . . . . . . . . . . .
III . Reactions to expbsitions of the tfue facts . . . . . . .
(a) The visit of M i. Caipio and Dr . Martinez de Alva to
South West Afrifa ,' . . . . . . . . . . . . . .
XXlV N A M l R l A {SOUTH WEST AFRICA)
'Page
WRITTENSTATEMENT OF THE GOVERNMENT OF THE UNITEDSTATES OF
AMERKA . . . . . . . . . . . . . . . . . . . . . . . . . . . 842
lntroductory . . . . . . . . . . . . . . . . . . . . . . . . 843
TheQuestion . . . . . . . . . . . . . . . . . . . . . . . 843
Issues presented . . . . . . . . . . . . . . . . . . . . . . 843
jurisdiction of the Court . . . . . . . . . . . . . . . . . .843
Part T. Statenlent of facts . . . . . . . . . . . . . . . . . . . 845
South Africa's administration of South West Africa under the
League of Nations Mandate . . . . . . . . . . . . . . . . 845
The 1950 Advisory Opinion . . . . . . . . . . . . . . . . . 846
The cont~ntiouscases . . . . . . . . . . . . . . . . . . . 848
General Assern bEy resolution 2145 &XI) and subsequent General
Assernbly and Security Council resolutions . . . . . . . . . 849
Part II. Stateinent of law . . . . . . . . . . . . . . . . . . . 852
Chapter f . The United Nations validly terminated South Africa's
Mandate over the Territory of Namibia . . . . . . . . . . 852
Section 1. Scope of the question . . . . . . . . . . . . . . 852
Section TI . The Mandate as a treaty in force . . . . . . . . 854
Section TT1 . There is a legal obligation to observe treaties in
good faith . . . . . . . . . . . . . . . . . . . . . .855
Section IV. A material breach of a treaty entitles the other party
to suspend its operation in whole or in part . . . . . . . . 856
Section Y . The League of Nations had the right to terminate
rights undera mandate in the evcnt of a materia! breach of its
obligations by the Mandatory Fower . . . . . . . . . . . 857
Section V I. The United Nations succeeded to the right to ter-
minate South Africa's mandate in the event of a material
breach . . . . . . . . . . . . . . . . . . . . . . . . 860
Section VFI . Sbuth Africa has been in material breach of its
inandate obligations . . . . . . . . . . . . . . . . . . 863
A . By refusing to submit reports, transmit petitions, and
otherwise recognize the authority of the United Nations . . 863
B . By systernatic rejection of the recommendations OF the
General Assenlbly and the Security Council . . . . . . 864
C . By application of apartheid in Namibia . . . . . . . . 864
1. Freedorn of movernen t . . . . . . . . . . . . . . 856
2 . Freedom of residence and right to own land . . . . . 867
3. Freedom of employment . . . . . . . . . . . . . 867
4 . Right to participate in government . . . . . . . . . 868
5. The right to family life . . . . . . . . . . . . . . 868
6. The right to education . . . . . . . . . . . . . . 869
Section VI 1 T. The United Nations had the right to terminaie
Soiith Africa's authority under the Mandate because of South
Africa's material breaches of its mandate obligations, and
such termination was a reasonable exercise of United Nations
supervisory authority . . . . . . . . . . . . . . . . . 871
Section 1X . The United Nations has the legal capacity to as-
sume the functions o f the Mandatory Power . . . . . . . . 872
CONTENTS XXV
Page
Chapter 11. South Africa hy virtue of itç conrinued presence in
Namibia notwithstanding Security Council resolution 276 (1970)
is occupying Namibiaille~allyand is obligated to rransfer adminis-
tration of Namibia to the United Nations . . . . . . . . . 874
Section 1. South Africa is in illegal occupation of Namibia . . 874
Secrion II. South Africa should have transferrod the admini-
straiion of Namibia to the United Nations . . . . . . . . 876
Chapter 111. From South Africa's cantinued presence in Namibia
flow certain legal consequecnes for South Africa and other
States . . . . . . . . . . . . . . . . . . . . . . . . . 878
Section 1. South Africa has certain dutics conçerning Namibia
under international law. . . . . . . . . . . . . . . . . 878
A. The duty iinder the Mandate to promote the well-beingand
developmeni of the inhabitants is impressed upon the Terri-
tory and survives terinination of South Africa's rights
under the Mandate . . . . . . . . . . . . . . . . . 878
B. South Africa lus the duty to act in conformity with
Chapter XI of the United Nations Charter concerning
non-self-governing territories . . . . . . . . . . . . . 880
C. South Africa has thc duty to act in conforrnity with
Chapter IX and other provisions of the United Nations
Charter. . . . . . . . . . . . . . . . . . . . . . 881
D. South Africa has the duty under general international
law to adhere to certain standards in the administration of
Namibia as occupied territory . . . . . . . . . . . . 881
E. The preceding duties are unaffected by the Fact thai South
Africa is occupying Namibia illegally . . . . . . . . . 882
Section II. States have certain duties under international law
with respect to Namibia among which are:
A. To respect the direcr responsibil ity of the United Nations
for Namibia . . . . . . . . . . . . . . . . . . . . 882
B. To apply certain legal rules with respect to treaties affect-
ing Namibia . . . . . . . . . . . . . . . . . . . . 884
Part IIT. Conclusions . . . . . . . . . . . . . . . . . . . . 888
a u SECRÉTAIRE D'ETATSUPPLÉANT
LETTRE AUX AFFAIRES ÉTRANG~RESDE L A
REPUBLIQUE SOCIALISTE FEDERATIVE D E YOWCOSLAV~E A L A COUR
WKITTEN STATEMENTS
EXPOSES ÉCRITS
WRITTEN STATEMENT OF THE GOVERNMENT OF
THE REPUBLIC OF SOUTH AFRlCA
CHAPTER I
INTRODCCTION
1. On 29 July l970 the Security Council purported to adopt the following
resuiution (descrihed as rcsslution 284 (1970)):
"The Security Council,
Rmffirming the s p i a l responsibili:y of the Unitcd Nations with regard
to the territory and iht: people of Namibia,
Rectzlling Security C ouncil resoIuiinn 276 (1 970) on the question of
Namibia,
7àkiw nore of the report ' and recommendations submittcd by the Ad
Huc Sub-Cornmittee csrablished in pursuance of Sccurity CounciI resoIution
276 (1970),
ïirking furdzer nore or the rccomrnendation ot' the Ad Hoc Sub-Commit-
tee on the possibility of requesting an advisory opinion from the Inter-
nationaI Court of Justice,
Considcring that an advisory opinion from the 1nternationaI Court üf
Justice wouId be useful fur the Securiiy CounciI in its ftirther consideration
of the qiiestion of Naniibia and in furtherance of the objectives thc Coun-
cil is seeking
1. Decides to submj: in accordance with Article 96 f 1) of the Charter,
jhe Following ques~iorito the International Couri of Justice with the
request For an advisory opinion rvhich shall be transrnitted to the Security
CounciI at an early &je:
'What art: fhc lcgal consequences for States of the continucd presence
of South Afsica in Niimibia, notwithstandinpSecurityCouncil resolution
276 ( 1970)?'
2. Reqlresrs the Socritary-General to transmit the present resohtion to
thc International Coult of Justice, in accordancc wiih Article 65 of the
Statute o f the Coiirt, accornpanicd by ut I documents IikeIy to rhrow Iight
upon rhe question 2."
2. Having received due n-stification in terms of Article 64 of the Statuteof the
Court, the South Afriçan G-svernmcntdccided to subniit this written statement
and, in principle, to participate iii the Iater st~gwof the proceedings. This
decision d m no; -impIy ariy recognilion of the mmpetenvc of the Court to
furnish rhe opiriion rerluesri:d; indccd as wili appear below, it is conrendcd that
the Coun in fact lacks such cornpetence and, altcrnaiively. that even if it hns the
compctcnce, it should, as a matter of judicial propriety, dwline ta exercise it.
Nor, of course, dues the decision imply any ircknowledgment on the part of the
Soulh Alrican Oovernrnent that the opinion, if furnished, can have arly greater
.
, - <
,
- .
U N doc. S/9853 (7 July 11170).
UN doc. SIR~~S/284(291uly41Y7~}. . . . ,
wI<ïrrE?iSTAI'EM~NTOF soLrH AFRICA 379
furtiish the opinion requested, it would have to consider al l questions which are
necessary in Iogic to thc deier'minaiion of the qua3tion bcforc il '.
In the prcsent case the Cbtirt has bccn iisked to pionounce upon the Iegal
consequenoes for Sratcs of South Africa's continucd prwnce in Suuih W a t
Africa, noiwithstanding rc:;vlution 276 (1970). In order to do this the first
question it mus1 decide is rvhelher S o u t h Africa's prexnce thei-e is lawSu1 or
unlawful and tliis will depestd upon whether resolution 276 (1970), assuminp il
io he formaiIy valid, is alw int 1-insicallyvalid, and if sn, tvhat lcgal eflects i t has.
Howvever, thcsc questions crnnot be decided withoiii also deciding the val idity
of thc wgriate re?oIutiuns iipon which resolutioii 276 (1970) is based.
Chapters V to XI of this :<tatementcontain the South African Goveriiment's
submissions on thcx qutsiicins. The purpose of thac chapters is to demonstrate
thar South Africa's prcçcnçe i n South West Africa is lawful and that rhc IcgaI
conwquences rhereof for States faII to be dctcrtnined on rhat hasis.
8. Chapter V will bc dcvoted to the question of ~ h cintrinsic validity of
resolution 276 (1970). Ir will k shown that this resolution was invalid in that it
was based upon and hatl as its vtry rrrison dclrc, General Assernbly resolution
2145 (XXC] 2, which for ratsons expounded in (Ihapters VI to XI, infra, was
itself invalid and void of le;yaI effecr.But cven if the validity of rhc Iattcr rcso-
lution be itcccptd, it wiIl b: rnuintained that resolution 276 (1970) stid related
resolutions can nonethcl~sshave no legal consequenccs for States inasmuch as
they w r e not adopted in acmrdance with the provisioiis of the Charter and arc
thc~cforeintrinsically invalid. Chupter V will conclude wil h the alternat ive
contention that even if rcsrilution 276 (1970) were to be rcgardcd as valid, ifs
effect a n be no more than r.xori~mendatory.
9. As intimatcd above. Chapiers V I to XI hcreof wiIl be devoted to the
consideration of questions s-crrnaiieto Gcneral Assemhly rcsolution 2145 @XI)
(save that Chaptcr XI, whic h deals with certain fac(ua1 iiiatters, is also of somç
rclevnnce i i i conncction with thc validity of Security Council resolution 27G
(1970)). Since it has been fvund ireccssary 10 divide the niatcrjal conceming the
validiiy of GcneraI Assembl y resoIut ion 2145 (XXU into more than one chapier,
a xparate introduction has bccn provided in Chapter VI for these parts of the
written siaiement. I t is accordingly unnecesary to surnmürize Chaptcrs VI
to X I here and it suffices tc. say fhat they wilI scrvc io demonstraie that, if the
Mandate for South Wst PJrica rcmained in existence afrer the dissolution of
the Leaguc of Vations, rcs3Iution 2145 (XXI) could not and did trot have ils
purported effcct of temiinating the Mandate. 'I'he conxquence u~ouIdthen bc
that thc Mandate still exists and ihat South Afriw's presence in Soüih West
Africa is IeyalIy unirnpeachable.
IO. The concIusion s t a ~ e din the pxvious pnragraph rendei-s it unneccssary
to devoie extensive attenticm t o the qucstion whether the Mandate as an insti-
tution did siirvive the dissoliilion of the Lcagiie. The South Africzin Govern-
ment has consistcntly ntaiiitaincd that it did nnt, and has presented dctailed
argument before this Court in support of its conteiitions j. by which it ahides
and which it reqiiests should be regarded as jncorporated hcrcin, It is cvident
ihar if these contentions tie accepteci, there muid have k e n no IegaI basis
Vide Ciai.t~inExpenses (f th? Uiriieti Notions (Ar:iclr 17,puragruph 2, of the

Clrarrer), Advisory Opinicrn, 1,C.I. Reporrs 1962. pp. 157, 182, I98, 217, 736, 253
and 288.
? By which the Ciencra1 !cssembly sought to terminacc trie Mandate for South
West hrrica.
V i d ~iiCiiI. Plcnding~,SiWh lkr..ri Africo, Vol. II, pp. 165 ci s ~ q .
380 NAMlOtA (SOUTH WEST AYKICA)
for GeneraI Assernhty r w l u t i o n 2145 (XXT) and thesubsequent United Nations

action in respezr of South West Africii, including Sccurity Council rcsolution
275 (1970). in part icular the General AssembIy would have had no authoriry to
terminate the Maiidate (which ex hhyofiesi would no Ionger have boen in
existence). to make any pronouncement un South AFrica's right io adiiiinister
~ h Tcrritory,
e rir to brjng the Tcrntory under the direci rcsponsibiiily of the
United Nations l . And, as will he demonîtrated k l o w ', the vaIidity of al1
subsequerit Lnited Nations action concerning Sourh West Africa dependcd
on the assumeci etTectiveness of General Asseinbly rcsûlution 2145 (XXI).
It is aciordingly clcar chat if the Mandatc Iapsed upon the dissolution of rhe
League, al[ Unitcd Nations resolutions which are relevant to the preseni issuc,
wcrc entirrly misconceiveci, and of no force and e f f ~ tOn . the othcr hand, as
intirnated abovc, the same result would cnsue even if it were postulated thar the
Mandate Jid survive thc dissolution of the League of Nations. In what foIIows
it will acccirdingly be assumed, for purposes of argument, thai the Mandate did
so survive.
Vide para. 4 of resolution 21 45 (XXI), quoted in Cliap. VI. para. 1, infra.

Vide <:hap. V, sec. B, infrti.
CHAPTEK TI
THE INTERPRETATIOK AND MODIFICATION OF TREATIES
1. In his dissenting opinion in 1966, Jjudge 'I'anaka said:

"In short the ditference #of opinions nn thc questions before us is in the
fina[ instance artributrd to thc diff~rencehetween two melhods of intcr-
pretation: teIeoloçicaI o r sociological and canceptionaI or formalistic '."
In the conkat Judge Tanaka was referring mort: swcifjcaÏiy to quesrions
rdating to the suggestori succmsion uf Gniied Nations organs to thc supcr-
visory fiinciions previously exercised in respect of Mandates,by {the kague of
Nations. 'rhc sarne questiofisrequire consideration in thc prweedings also.
In addition a number of dificult and impurlani matters concerning thc inier-
prctation of the Covenant of the League of Nations, the United Nations Charter
and certain othcr instrumeiits rnay have ia he deaIt wilh in any opinion which
the Court rnay decide to funiish. In this regard consideration may aIso haire to
be given to the tffeci and ,veight of ~ h subscquent
e conduct of the parties to
such instrumcnts. Ln respect also of these matters, which were not before the
Court in 1966, the approach adoptcd by the Court m y have an important, il
not dechive, &ring on the utfiniate conclusionsreached.
It is proposcd therefore t-J set out briefly the principles wliich, il is subrnitted,
the Court shouId appIy in interpreting twaiies, conventions or othcr similar
instruments embodying i nti:rnationaI obligations, and in determining the effoct
and weight to bc accorded to subsequenc conducc as an elertrent affecting the
meaning of such inst rumcni 5.
I. The Aim o i Purposr of fhe Interprctative Process
2. 11 is a well-establishcd principle of international law- thrit the aim or

purposc of ireaty interpretrtion is to ascertain and give effect to the cnrnmon
intent of the parties. This ,xould apprar to h a necessary consequence of the
principlt thaf treaties owc tlheir enfer in law to rhe joint or common consent
of the parties thereto. A oAlection of then-cxist ing authorities for t heçe pro-
positions rnay be found in thc pleadings of the South West Ajiicucases 2.
3. More recently thc principlcs of trealy interpretatian were considered at
the United Xations Confe~mceon the Law of Treaties, which culminateil in
the 1969 Vieiennü Cunventic~non thc Law oîTreaties. Articles 31 and 32 of the
Convention read as follows:
"Article 31
1. A treaty shall bi: inttrp~tedin good Tairh in'accordance with the

-
. --
South W ~ s rAfricu, Second Pkase, dudgnzent, I.C.J. Reports 1966, p. 278.

* LC.J. PfeorIings, Sotr!li West Afrirn, VoI. VII. pp. 37-40.
WRITTE N STATEMENT OF W G T H AFRICA 383
thoughi accept, however thai ihc true aim of iiiterpretation is to asccrtain ihc
cornmon intent of the parties.
Jurists who crnphasi7cas~lt.ct( c l , do nnf noccssarily a u p t this basic assump-
tion.'ihus theComrniss~on:;tatod:
"Sonie give grcal weight to the objecl and purposc of the treaty and are
in conxqiience inore i,eady, cspccialIy in iIie case of general muttilatcral
ireaties, to admit telcological interpretations of the text which go btyond,
or even d~vergefrorn, theoriginal intentions of the pariiesasexpressed in rhe
text '."
The Commission no~edrhat the textual approach, whiçh was followtul in its
recommcndationç, cnjoyed the support of rhe rnajority of jurists ' and of the
Lnstirute of International 1 .:I\v z. Moreovcr, thc Corritnissionstated,
". .. the jurisprudencx of the Triternational Court contains many pro-
nounccrncnts rrom wkiich i t is permissiblc lo concliidc that the texrual
approach to treaty interprctation is regarded by it as esrahlishcd law I".
4. The draft proposcd by thc Commission ivas extcnsive[y debatcd during
the meetings of the Ccimrniitee of the U'holc of the United Nations Conferencc
an ihc Law of Trcaties '.
I'rofcssur Myres S. McEiciugal, represenling rhe ijnitcd States of Amcrica, .
criticized thc draft on the hisis, inrtrr aiio, that fhc."rigid and restrictive systern"
introduced thereby "çouId bc ernpIoyed by interprcters tri irnposc upon the
parties to a lreaty agreenieiitsthat t hey had never made '". He added :
"Thc parties to a lreaty cnuld wcll have a cornmon intent quite diffcrcnt
from that expressed by the 'ordinary' meaning of thc tcrrns used in the
text. The imposition upon the parties of certain üIIeged 'ordinary' niean-
ings, cornbined with i:he predusionary hierarchy of means set forth in
Articles [3I and 321, i:ould lead to the arbitrary distortion of their reaI
intentions I."
A Unitcd States anienùntent was accordingly proposed to obviare the stated
objections to the draft.
The International Law C:ommission drart Kas, howcvcr, strongIy supported
by ot hcr rcprcwntatives, in particular by the represenrat ive of Uruguay,
Proîessor (now Judse) E. .firntnc-- de Arechaga, who was also Rapporteur of
tlie Cornmittee of the Whole. He referred to atithorities sirpporting the ~ h o o l
of thoughi which "based irrterpretaijnn on thc tcxt or the rreaty" and q u o t d ,
inler rtfiu, the opinion ofjutigc H u k r to the efect t h t :
". . . if thc parties werc to k allowcd frccly to iiivoke their süpposcd r w l
will, an essential ridvaiitagc of ihe written and conventional Itiw wouId be
lost. The text signet1 v u s the only, and tlie most rccent, expitssion of rhe
cornmon wiIl of tlie parties >."
,
/
Kegarding the effrçt to t c piven to the object and purpose of a treaty, Jiidge
de Aréchaga said:
-.
Vide Yeurhwk uj' rhe In!ernri/ioirnl Law Commission i 966, Vol. 11, p. 218.
Ibid., p. 220.
3 Vide United ,\rd'ririorts Ciinfcr~nce on ikr Lunj of Trmtirs, OR. Firsi Session.
Vienna, 26 Mar.-24 May 19titl. pp. 166-185.
384 NAMIBIA (SOUTH W E ~ IAFRICA)
, "The C~ornrnissionIi.e., the International Law Cornniibsion] had dclib-

entely referred ro thc objcct and purpose of the treaty as the most impor-
tant part of the content, not as an independent elernent, since the lattcr
mursc niight Iead to distorted intcrpre~oriuns,and opcn thc door to the
teieo1ogicaI niethod ihat niight resul t in a subjective aiid self-ititeresled
appruach '."
Thc attitude defended by the reprcsentiiiive ofUruguay rweivcd wide support :.
It is not proposed i o anaIyse the argunients advaiiced by the supporters of the
drafi in any dctail but two points, rep.atcdIy niade, require cmphasis, viz., that
thc actuaI tcxt of a rreaty is the safat atd most rcliablc indication nf the inten-
tions of the parties thcrcto, and ihat it would be, in the words of ihe CSSR
delegatc, "pulitically dangerous . . . [tu] permit an arbitra? intcrpretation
divorced f:om the text and capableof altering its rneaning '".
ln the result, the United States amendment was rejected in the Cumliiilieç
of the Wholc by 66 votes to 8, with I O abstentions *. AL~ h cthirtcenth plenary
mccting ofthe Conference the draft articles under discussion were unanimously
approved--drafi ArticIc 27 (Art. 3 1 in the finai convention) by 97 votes 10 O and
draft Article 28 (the present Art. 32) by I O 1 votes 100
5. As appars froni ihe discussion above, the testual approach is not anly in
accordairce wiih logic as being hased iipon tlte fundamental principle of the
consent of the parties. but it has rewivcd the imprimnrur both of the Inlemat ivn-
aI Law Ccinirnission, which is composed of w m e qf the world's mosi highly
qualified ~iublicists,and of the Court (which again in 1966 rejected the leleo-
logical priilciple with specific rcfcrcncc to srime of thc issues arising in thiscaçc) *.
Most important of all, it has received the unanimous endorsement of the States
theniselve:;+f t his, the proceedings ai the Vienna Confcrencc: provide con-
clusive prtiof.
. 'I'his Crinference was of the greatesi significance in the development and
wdifiotivn of the Law of Treaties. No fewcr thm 110 State, 9 Spccialized
Agencics and 5 intergovcrnmental organiztitioiis participated in it. Tt thus
provided ;i foriirn in which. on a lnrgcr scsle than ever berore, rhe viens and
practice ol'ihc great majorify of the States of the ivurld on virtually al[ aspucls
of the Iaw of treaiics bocame evidenl. And in no area of this law was greater
consensus reached than on the question of the interpreration OF tieaties. The
lelt.ologichl approach long advocated by varioüs jurists and some judgcs of
this Court was decisivcly rejected as being nor in accord with the practice of
States, and the textual approach was overwhelmingly afirrned. Ir is submitted.
thercforc, that the controversy in this connection must now bc rcgiirdd üs
finally settled.
In the resiilt, the fundamcntal principle which kas crnerged is that the aim
and purpose of treaty interpretation is to asccrtain and giveeffect to thecornmon
-. --
United Nl,i'ciiinns ronféreacr on rhe Lna of Trpu~ie.~. op. cil.. p. 170. Yi&
Ymrhok rhc~Inteuilofionnl Luw Cotoriitnission 1956. Vol. .II. p. 2 1Y.
? Vide, e.g.. the çtatcments by the reprrstntafives of Poland (pp. I73-174); IJSSR
t ~ f .75); Francc (pp. 175-1 76): Brazil (p. 176); Bulgaria (p. 176); United Kingdon1
(pp. 177-1781; Kcnya (pp. 180-181); Liberia ( p , ) R I ) ; Nigeria (p. 181); Mexico
(p. 181); Cuba (p. 182); FinIand (p. 182); Turk- (p. 182) and hladaigaçcar (P.183).
United Nulions Conference on the Law ofTrcatips, OR. First Session, pp. 174-i 75.
1bid.. ri. 185. ..
0R. Second Session, Vicnna,
Unired h'utiuns Confirence 017 the l i w of fi-eoiic~.
Y Apr.-21 ;May 1969, pp, $7. 59.
' Vide para. 6,inJrc~. .,..
intent of the p.artics. The tdeological apprciach according tci which '"nccr:ssity
crcate(s) the Iaw independently of the will of the parties and those concerned '"
has been s h o w io be complrtely unacceptable to States as welI as to publicists
and the Courr.
6. As observed above, thr: telealogical approach was specifically rcjected hy
the Court in 1456. Thus it said :
"II may bi: urged thit the Court is cntitlçd to engage iin a process of
'filling in the gaps' in the application of a telcdogical principle of inter-
pretation, according to which instruments must be givcn [ k i r tnaxirnum
cKcct in order to ensurc the achieverncnt of iheir underlying purposeS. '1-he
Court need not here enquire into the scope of a principIe the exact bearirig
of which is highIy contrtiversia1, for it is clear that it can havc no application
in circurrlstances in which the Court would have to go beyond what can
reasonabIy be regarded as king a process of interpreiation, and would
have to engagc in a prixess of rectification or revision. Rigtits cannot br:
prcsumed io exist rnerely bccauf~it might sceni desirable that they should.
On a previous wcasion, which had certain afinities with the prexni one,
the Court declined to find that an intendeci three-rnembcr commission
w u l d properry be consi ituted with two mcmbers only, despite the (as the
Court had helrl) illegal refusal of one of the parties to the jurisdjctional
clause to appoint its ar bitrator-and although rhe whole purpose of the
jurisdictionir1 dause w a i thereby frustrated. In sci doing. tlie Court (I.C.J.
Reporls 1950,p. 229) raid ~ h a itt was its duty 'to intcrpret the Treatia, not
to revise them'. [t contiraed :
'The principie of ir:rerprcicition expressed in the maxim: Ur res mugis
w~.illeutquoln P e r m , oRcn referrcd to as the rule of effcctivenesç, cannot
justify the Clourt in irttribitting ro rhe provisions for the settltment of
disputes in the Peam Treatia a meanhg which, as stated above, would
be contrav to rhejr leifer and spirit.'
In other words, the Giurt cannot remedy a dcficiency if, in ordcr todo so,
it has to exczcd thc bourids of normal judicial action '."
il. The Principles to Be Appfkd iti Ascertuiriing th; Cotnmon Inienr ofrhe Parries
(a) Arturrlity und Ordifinry r'Cieminx
7. In seking to açcerrain the cornmon intent of the parties, a tribunal wilI
in the first instanw have regard to the principle of aciuaiity and ordinary
meaning. This means that prima fucie:
(a) the text of the trcaty as it stands shuuld t>e regardcd as fulIq. and accurately
expressing the wmmon intent of the parria (principle of actiiaiity);
( h ) the language of the tex1 is io bc giveii its o r d i n q , natural and unstrained
meaning in its mntcxt (~irincipleof ordinary meaning) 3.
Both ihese principles weri: incorporazed in Articles 31 and 31 uf rhc Vicnna
Convention (quoted above). Thc prittin fucie importance of the ordinary mean-
' Judge Tanaka, 1966 disranting izpinion, Sorrrh Wesl Africn. Second Ph'lia.ye,
Jiidgmenr, I.C.J. Reports 196t;, p. 277.
a South Wesr Afiictr, Sc~condPhuse: Iudgm~nr,I.C.J. Rcyorts 1966, p. 48.
For authorities oii these princ~ples, vide I.C.1. Pklfadin~s,SnurR Wesi Africu.
Vol. VII. pp. 41-45: Yenrboo.k o1'1fie ftzrrrnationui Law Conimissiun 1966, Vol. II.
pp. 220-221.
ing of th(: text is ernphasized in ArlicIe 3 1, paragraph I, whereas the principlc
of actuali ty is recognized by the resrricred definit ion given in Article31 ,paragraph
2, io the "contcxt" w ~ t h i nwhich the terins of a treaty are to be read, and by thc
Iimited B:Id of application assigned in ArticIe 32 to supplernenlary mcans of
interpretzirion tinçluding preparatoi-ywork).
8. inasmuch as the objcçt of interpretation is to aswrtiiin the cornmon intml

of the parties, it follows that the tekt nT üny instrument shouId be appraised in
rhc light of concepts and Iinguistic usage current at the time of its cxecution '.
This is t hr: prjnciple olçontcmpomneity. which is wc1I estabIishcd in international
Iaw and which \vas again appl ied in the Sout!~West /i[ricu cases in 1966.Thc
Juùgmeni reads:
". . . in ordcr to derertn~newhat the nghrs and obIigations of ~ht:Partics
relative ro the Mandurc wcrc and are . . . the Court rniist place ilseif at the
poini. in time whcn the inandates system was bcing instituted, and when
the insirunicnts of mandale here k i n g framed. 'The Cour[ must havc
regard ro the situation as ii was at that time, wliicl~was the critical one,
and io the intentions of t hose coiioerned üs thcy sppcar io have exisred, or
are rixsonably to be inferred, in the light of tliat situation. Inlentions that
might have been formcd if the Mandate h d been framed al a mue11 Inter
date. and in the knowledge of circumstanccs, such a. the eventual dissolii-
[ion of the League and its aftermath, that could never oriçinally havc b w n
foreseen, are noi rc[cirant.Only on lhis basis van a correct alipreciation
of the legal rights of the Parties bc arrivcd at. ?'bis view is supported by a
prcvjous findi ng of the Court (Righrs of United States Aruriotia/sin Murncco,
I.C.J. Repora 1952, at p. 189) the effect of which i s that the meaning of a
jiiridjcal notion in a liisturical context, musr be songht by reference to the
way in which that notion was understood iri thai contcxt 3."
9. Save for Judgc Tanaka, whose tuleological approach \vas iiientioned
ahove, the minority judges do not appear IO have rejected this principle {a
distinct finnt ihe conclusions reactied by ils application). T'bus, for exaniple,
Judge Wellington Koo mnsidered "a few words about the historical background
o f the creariun of the maridaies systcni . . . useful to enable a Full understanding
and appreciation of its nature, spirit arid purport '". Judge Koretsky found i t
"necessary l o turn to the history o fthc incIusinn of the jurisdictional clause in the
mandale instrument 5" and, after reaching a conclusion as to the meaning and
objcct of the clause, comidcrcd the queuion : "Was lhis sumcthing strange at
that tinie "?"And Judge Jessup srated:
' T h e Court's Judgment rests. m i t trtusf,on an interpretatinn of historiwl
' Vidp YeorbDok u f r h p Inieunnrional Law Coinnli.r.rinn 1964, Vol. Il, pp. 5 6 5 7 ;
1966. Vol. l J , p. 222.
For earlier authoritia. ridp I.C.J. Pleadings, Soirih I.Vrsr iifricu, Vol. VT1,
pp. 4536. Vidp also RIghl of fu.wag~O ver indian Terrirory, hferiis.Jirdgnieni. 1. C.J.
Repouis 1960, p. 37; Barcdunu Trrrcrinn, I.igIir aiid Powcr Cunrpcin,~,timitcd, Prt-
liitiitiary Ub]ecriuiir, Jr~dpircnt,I.C.I. Repartr 1964, p. 140.
Soirrit Wesr Afiico. Second P l l n ~ e jrrdr~nerrt.
. 1.C I . R f o r t s 1966. p. 23.
WRITTE < SI'A'I'EMEWT OF SOUTH AFRICA 387
facrs involvcd in rhe 01-iginand in the opcrstivn of the mandates system
of lht: League of Nations, ilr rhr seriifiguf^tiieirpcriod '. " (Italics added.)
I O . Thc ptitincilile of acictuaIity referred tci above means ihar the parties must
prima facic be considered t h ) have expresxd their tu11 agrecmcni in the written
teKi. F.~ceptionülly:hoivever, a conclwion may bc wairaiited that sornething
"gocs without saying", ive.,that the parties were in fact tacitfy agrecd upon
soniething not expre-1~stat<d in thc k x t .
Courts in al1 lcgal systéiiis guard themseIvcs against aîsenting to stich a
proposcd itnpiication on sny but the rrlost cogcnr grounds, realizing that
iiiiplication on a h s i s ofspeculativn, or of what the pariics oupht rwonably
10 have done, would amourit to the making of a new bargain or compact for
the parties. as distinct fi.oni the Court's [rue function or vivinr effect to the
barkin or compact acrually agreed ro by the parties thems~lvcs,-~onse~uent~y
the reuui~rnenris stre~3edthrit an imnliwlion of ro~isetistrsmust arise riecessariiv
or i,iai~iirzb& frorri the rele-fünt fa&, in thc sense that al1 orher reasonabL
infcrcnces are excludcd.
Two fiirther corollaria flcw frotn the principles siatcd above:
(0) Thc tcrrn sought to bti irnpIied must be wpablc of formulation in sub-
stanrially one way anly. If thc content of the term sought to lx iinpIied is
doubtful. thcn one cannot wncliide that the parties tacitIy agreed on
anyihing at all.
!hl Where ihc written dmurncnt rriakes express prnvision f o r aiiy partiçular
evenruality, it will be E-venmorc dificnlt to fjnd that thcre is an impIicd
tcrm cowring substantiîlly the same ground as the express provision. .
I I . The expression "tacit agreement" is also used for a somewhat dilferent
situation, narncIy where thei-e is no express ügrcetrlent betwcen the pariics ai
d l , but ail agreement i s n:vertheless i~ipiiedfrom the circu~stanws.Iierc
again such an agreement rr.üy tx he[d ro have k e n concluded only if il is a
n-ssaiy inferencc from the facts. As stated by judge Hadawi in the Corfii
Cliat~iielcase :
"proof hy c~rcurnstantialevidence is regardcd as st~ccessfullyesrahlishcd
only when other solutions would impIy circuinstances wholly astonishing,
unusual and contrars t c - the way of ihe world >".
12. A factor which woulcl inilirate very strongly ligainst any contention that
an implitd agreeinent had br:en reached; is the availability of tneans tu conclude
the -me agreemenr in expn:ss terms, and thc M u r e ta makc use thereof. This
Sftrifcase ',
faclor was accordcd dccisivs weight in the iVorfh Seci Curifiirc~~illal
in which it had been contrndcd that ihc Federal Kepiiblic of Germany had
become bound under the 1958 Gencva Convention on the Coritinental Shclf
although the k-edcral RcpuElic had not ratified the convention. The Court said:
"AS regards thcsc cvntcniions, it is clear ihat only a very dcfiniie, very
consisicnt course of conduct on the part of a State in ihe situation of ~ h e
FedeiaI Kepriblic çoulrl jiarify the Court iit upholding thcm; and. if this
had existtd-that is ta wy if lhere had been a rcal intention to manifest
Ihid., p. 326.
For autliuritics, i.i& Sorrri~~l~t'esr
I.C.J. Pi'ei~dit~gr. Africn, Vol. VJJ. p p . 45-52.
Cvrfu Chnrriicl, Meriis, J~dgmertr.1.C.J. Rrporrs 1949, p. M.
' . ~ o p i hSeo Conrinenfül.Sl,e~;
Ju&ttzeizr, I.C.J. Kepnuls 1969, p. 3.
(e) The Universal Applicnlriliry rflhe Above i'ri~ciple~s
19. A11 the ahove-meniioned prinçiples are applicable to ail instruments
einbodyirig intet'riational obligations, be they unihteral, bilateral or niuliilateral.
The relative weight to be given to various aîpects of the wording. the content or
other pcrmissible ai& to inlerprerativn {such as preparittory work), may how-
ever, difler acwrding lu thc nature of ihc treaty which is the su!i.&t of inlçr-
'.
pretation in his dissentiiiy opinion in 1966, Judge Jessup drew attention to
'.
this circu:nstance Wilh the general proposition statcd by him, viz., thar there
are diRert:ncesin approüch htrveen the interpretation, on the onehand,ufa bilai-
erd treayr or a contract in privaie lüw, and, on the ortier, "a grcüt intcrnatioiial
constitutional instrument, Iike the Unitcd Nations Charter 3" rhere can be no
yuarrci. Clmc rcading of this part of Judge Jessup-s opinion wiIl show fhiit he
did not atteiiipt any prccisc definition of the naturc of such differences. The
South African Govcrnment also does not propose attempting such a definition
- for preient purpose%il will sufficcto submit that such diffcrences in approach
do not take instrurnçnts of ihe "constitutjunal" type out of the general rrtles of
interprei;.tion dcaIt with herein, and Judge Jesstip d m nul appear to have
contendeil otherwiw.
20. Onc spccific fcature should, Iiowever, he noted. Xi is subrniiied that in
"cons~itutional" iiistruiiients iht: text of Ibe insrrument airains increased
importanx as against olher indicia of rhç intcntions of its authors, inasmuch
as these instruments arc open to accession by States wIiicti miyh! htivc no
knowledge of features such as the rravnux prkparnrairrs, or subsequent conduct
of the ori::inal parties, and whose inteiitions u n in any event no1 lx arcertained
by referer~cctu such fcütures '.
C. Subsequcnt Conduct
21. It was dernonstrütcd in section 13 above tliat the aim os purpose of treaty
inttrprctation is to ascertain and yivt cffect to the cornmon intent of t hc parries.
If suhsequent canduci of the parti+ is.to play any role in the interpretative
process, i i could acctirdinçIy be relevant only to the ascertainrncni of !ha1
cornnion intent as it exisied rvhcn the trtraty was concluded Tt follows that,
in its appliwtion ro inrerpretation, subscqucnt cnnducr of the parties couId not
have the rcsuIt of giving t o a treaty a rnwning dili'erent frorn thai which it bore
at its inwption. Whether thc subwquent conduct of the parties could effect a
modification or amendment of a ireais., is of course, an enlirely different
mattcr. Such a prjnc~ple,if admitted, would amvitnt to the rccognition of a
- .-
Vide Yearbook oj-rlii, inrernuiinnal I - ~ I W Curiinrissinn 1966, Vol. II, p. 219.
* Suurh We.rr Afuica. Second Phrise, Jirdg!rirnr, J.C.J. Reports 1966, pp. 352-356.
It will be ~iotedrhat hc advacated a niore extensive u x of ivrrïuu.x pr4purutaitc.s rlian
is generally a c e p t c d as pcrmissible. (Vide Ycirrtuuk vf rl~eInirri~rrfiontrit i r i i b Conr-
inissioii IY66. Vol. II, p. 270and Arricle 32 of the Yienna Convention on the 1 . 3 . ~of
Trearies. cited in para. 3 ahci\-e.)
" S n i l ~ hSVcsi Africa. Secnnrl Phasc, Judgmenr, i.CA.?. R~porrsf 966, p. 3 53.
Vidr, c.g., Dahrn. G.,Viiikcrrechi (I961), Vol. Ill, p. 5 5 ; Sinclair, 1. M . , "Vienna
Conference (in the Law of Treatia", Inrcrnaiiunul and Comp~zmrivet r i w Quarrerly.
Veil. 19 Il!i70), p. 53:and Sir Pcrcy Spender inCérfain Exp~nsesofrheUiiiredNoriotis,
Rdvisory <#inion, I.C.J. H~portsIM2. pp. 190-191.
Vidr paras. 5 , 8 and 9, supra.
process whercby a new agrtenient is crcitcd, rarher than a praccss whcrcby the
meaning uCan eniçting agrecnicnt is established '.
In the present section, ihi: effect of the sutisequent conduct of the parties to a
treaty wiIl be cnnsidcrcd in both the above-mentioned aspects: firstly with
rekrence to the interpretation of ircaties, and socondly with teference to iheir
modification or amcndrncn:. Thereafter will follow a discussion of the haring
which these rules inay have on praclice withiii thc United Nations Organization,
ahich, as will bcshown, involves somcadditional considerations.
il. Sufisequet:t Cot~dttcras an Aid lu Inrerpretaiiori

22. Ii is weIl established i-ha1 the suhsequcnt praclice of the parties ro a treary
may be of assistance in ihc interprctation of ahscurc or ambiguous terms. Tn
this regard Lord McNiiir wrote as follows:
"Here WC are on solid ground and are dealing with a jiidiciat practice
worthy to be cüIled a rule, namely that, w k i r ~ h e irs ~Q dmhr as tu the
inmiiuig of'cr provisine or an c,vpprrssion cottraitirri in a treuiy, the relcvant
conduct of the contraciirig parties after the conclusion of the lreaty (sonle-
t i m called
~ 'praciical constniction') has a higli probat ive vaIuc as 10 the
intcniiun of the parties at thc tirne of itsconciusion. This iç both good sensc
and good Iaw Y' ((Italics added.)
Similarly D. W. Bowett wrote as foIIo~vs,relying extensivcly on referencs to
the jurisprudence of the Permanent Court and ihis Court :
"ltr cn.se.7 of ditrtbr 12s io ?IIP rneat?tng qf C I I ~agreemetit, thc su bsequent
conduci of the parties !n cari-ying oirt the agreement affords evidence of its
meaning 3," IItaIics added.)
This principlc was incorpvraled in Article 31, paragraph 3b, o f ihe Vienna
Convention on the Law of 7-reatics, whicli reads as KoIlows;
"There shall bc takfn into account, togcthcr with the context:
- . . . . . . - I . . . . . . _ . . l . . . . . . .
( b ) Any siibsequent practice in the application of the t r a t y which

establishes t hc uiiderstanding of the pariies regarding its intecpre-
ration '."
23. Although the perrnissibilily of recourse to suhsequent practice a??an
aid to interpretation is clear, i l s value is l imitcd. Firstty, it can k of assistance
onIy wherc thcre is soine aiiibiguity or uncertaiilty in the trcaty itself. This is a
ntxxssaty corollary of the tcxiuat approach to interpretation. and is recognized
by rhe authorilies quoted in tlie immdiately preading paragraph, üs well as
Vide Y ~ a r b n n kof rhe I;~lrrntrrionalI.uw Comtnission 1964. Vol. II. paw. 25,
p. 60; Ye~rrhuoku j - rke iirtri-itclrionl-il i.oru Cui?imissioir 1966, Vol. II, p. 236 fconi-
mentary on drart Art. 38, para. 1); Gross, L., "Vuting in the Scc~irilyCouncit:
.4hsrenrion in thc Pososl 1965 Amendment Phasc and i i s Impact on .4rtiçle 25 of 1 he
Charter", A.J.f.f.., Vol. 62 (1 9681, p. 329; Hernhardt, R.,Die Au.rlegung VGiker-
vrrhilirheu Yprrriipe (1963).0. 174.
McNair. o p . ciz., p. 421. Vide also Ucgan, Y . D.. L'int~rprdtatic~tr Jrs accordr en
droir i i z f e r n r i ~ i o ~1963),
~ l { p. 1 30: C'crraiii Expenscs of thrl Lltlif~dNurions, A d ~ h i ' ? ~
Opinion. I.C.J. Reports 196;. p. 190 (separate opinion tif Sir Perey Spender).
Bowett. D. W.. ~'Esiop~el bcforc the International Tribünals and ils Relation lu
Acquiescence", B. Y.B.f.l..,'bol. XXXIII { 19571, p. t 77.
+ Vidc para. 3, supra.
in the foIIowing pasqages from the scpürate opinion af Sir Perey Spender in the
C,'ertuitr E~petrscsw x :
". ., subsequent conduct may only provide a criterion O intcrpretütion
, when the tcxt is obscure, and even then ii is iixeçsiiry to consider whether
rha t conducr itself perrnirs uf only one infcrcnce" ', , ,
and-
"Eqreii. where the çoursc of subseqhent conduct pursued by both parties
to a tiilateral rreitty or hy al1 panies tu a m~iltiIarera1trrüty are in accord
and t:~at conduct permits o f only one infcrence it' provides a criterion of
inter~retationonly when, as has already been indicatcd, thc text oF the
trcaty is obscureor arnbiguous 2."
As a marier of interpretation subsequeiit conduct mn accordingly not justify
adeparture from the clcar wording aT the text.
24. Morcover, the practicaI utiIity of subsequent conduct as an aid io the
aqcertainrrient of the intentions of contracting parties is in any event srnaII 3. As
ncited by Sir Pcrcy Spender in the it:passagcs quoted tibovc, subsequenr crinduci
as an aid to interpretation mus! bc so clear and consistent as to periait of only
one inferetm. However, if al1 the parties to a treaty appIy i t in the same way, no
dispute as to its rncaning is Ii keIy to ariçr. When dispuics do ansc. the reason is
likely to bc that the treaty is applicd difïcrentIy by the parties, in which event
there wou!d ex hypo~hesinot be a clear concordant practice whjch çould have
substaniial probativc value as to the mraning of the text '. Scc in this regard
also, the fcllIowing cornnient by Sir Pcrcy Spender:
"It is . . . evidcni cnriugh . .. t h t the subsequent conduct of une party
alone cannot iK evidence in i t s favour of a wmmon understanding of the
meaning intended tu bcgiven to the text of a treaty 5."
Wiih refermce 10 thcconduct nfparties t o a multilateraI trcaty he iiùdcd
"If. . . only one or scrme but no1 aII of t hem hy siibsequent conduct
interpret thc tcxt in a certain manner, that conduct stands upon the ssrne
footing as the unilateral conduct of onc Party to a bilateral treaty. The
mnduct of such one or more coutd nol of itself have any probal ive valtie
or providc ü criterion for judicial interprctation 6."
25. Special consideration must bc given to mtiItilaterai treaties where the
-
Certuiri Expenses of the Utzikd Nuliofis, Advisvry Opinion, 1.C.J. Reporrs 1962,
p. 189.
Ihid., p. 1 Y 1 .
Vide Bindschedler. R. L., "La délimitation des compétences des Nations Unies",
Rectz~iides cours, Vol. 108,No. 1 (1963). p. 324.
Vide JrrkI, M.. De I'interprétution des ttaifes norinargq d'aprPs la doririne et ia
jurisprudence internaiionafrs (I936), p. 172; Hastid, S., "De quelques prohlkmes
juridiques poses par le dkveloppcment des organisations internationales", LFS pro-
blèmes fondume~tiuuxdit droir iizicrmtional. 134diange.ren I'hotitieur de I. Spiropoirfos
(1957), p. 35; and McNair, op. cir., p. 429.
V e r t r i i n Expenses of ihe U n i i d Xutions, Advisvr.~Opitiion, I.C.J. Repnrl.7 1962,
p. IW.
VIbid., p. 191. As appears from thcse two passages read together, and also from
r~therparts of his lepürirte up~nion,Judge Spender acceptcd that unilateral conduct
aT a plirty ntight in appropriale çases bc cvidcnce u ~ a n s him
i as to the mcaning of a
text.
VfRITTEN STATEMENY OF SOUTH AFKICA 393
original parties mas be adcled in in accordance with the icms of thc trcaty
itseIf. HeFerence has already been made to the more lirnited roIe played hy
indications of intentiori Jel:ors the text (sucli as subsequenr conduci) in the
jnterpretation of such 1rcatir:s '. Applyinç rhis rule 10 the Charter, which is the
prime example of such a rwa ty, Sir Pcrcy Spcndcr said:
"The original Meinbtrç of rhe Charter niimber kss than half the iota[
numbcr OC member Sta!es. If the intention of the origincii Merribers of ihc
United Nations, at the lime ihey tntered in10 lhe Charter, is that which
provides a criterioii of intcrpretarion, then i t is the subsequent conduct of
those Members which niay bc equated wifh the subsequent conduçt of ihe
parties to a bilateral or inultilateral treaty where the parties are fixed and
constant. Tliis, it seeins to me, wuld add a new and indeterminate dimen-
sion to lht righis and oliligations of States that were nol original Mernkrs
and so wcrc not privy tri the iiitentions of the original Members 2."
16. There is sulistantial srholarly support fur the proposition that a treaty
or convention rnay be revised or modificd by the subsequent conduct of the
parties thereto 3. Statcs havr: however shown a slrong reluctance to sept the
vcilidily of this proposition. as appears frvm the prmedings at the Viema
Conference on the Law of Trcatics. In itsdraft Article 38 on the Law ofTreaties,
the tntemational Law Coniiiiission had propused the folIo\ving:
" A treary may bc modifiai I>y subquent practioe . . . cstablishing the
agwment of the parties t O modiiy its provisions."
In its commeiitary the Commission stated cxpressly :
". . .even if every part!. rnigfit not itscff bc actively participated in the
practicc, [it] must & suc h as tn establish the agreement OC the parties as a
whoIe to the modificaiicin in quesiion '."
AIthough this specitic driift articlc drcw vcry Iittlc or no comrnenf from
govcmmcnis amendm~ntcdeleting Article 3R were adnpied by 53 votes to
j,
15, with 26 abstentions, by rhe Confertnce's Commitlee of the Wholc.

17. Various arguments uere advanced by delegates against acceptance of
the drafr articlc. Onc rccurring objection was that it would offend against the
principle of pactu suul servnnda '. The Expert ConsuItant (Sir Humphrey
.--
vide piàFd. 20, SUpr<i.
Cerruin kkpeir.res 0f i h t'niicd
~ Notiun~-,Arivisor.~Opinion, I.C.J. Reports 1952,
o. 191.
Vide Frtunaurice. G.. ' Y he 1 . a ~and Procedure of ihe lntcrnational Court of
Justice, 1951- 1954: Trcary Tiiierpreialion and Other Treaty Points", R.Y.Y.R.I.L.,
Vol. XXXJII {1<157), pp. 212, 225 and 252; Yearlrnak 01flieInfernarional IAIW Gan-
inissioa 1966, Vol. II, p. 25 icommentüry tin Art. 38); Tunkin, G . I., Droit inter-
niriionnl pl~blir{ 1 965). p. 94.
' Ytnrbook oJ lhe fntern~16lnaiLaw Co~nmission1966,Vol. II, p. 236 (cornmen-
rary on Art. 18, para. 2).
' Il)icf.. pp. 279 P I seq.
U n i i d Norions Confircnce on f,un. of Trpuiies, O R , First Sessicin. Vide the
ol?(ectionsof thc rcprcscetaii\es of Spain (para. 69,p. 209): Chjle (para. 75, p. 210);
USSR (gara. 3. p. 210); Syri;i {para. 30, p. 212); Uruguay (para. 34, p. 212); Cuba
(para. 40, p. 21 3); Portugal (piira. 42, p. 213); and tlie Nethcrlands (para. 47, p. 213).
is irrelevant for prestni pui'pws is to be found in cases where the divergent
practice is not intcnded io rnodify the treaty but is pursucd purely for reasnns
of {id hoc cxpediency. And iilany othcr cxarnples inight bc given.
31. An intention ro effecta tiradification niight of course he inferrcd from the
condiict of rhe parties bui s ~ c han inference woiiId, it is submiiied, be justified
only in the rnost excepiional cases. Inferent ial proof of the intention ro concludc
ansigreetneilt isat the k t or t i r n a very dificutt IO establish '. This ditiiculty is
inevitably enlianwd whcn :hc conduçt said ta cnnstitutc the neuTagreement
concerns thc arnendment or. modification of an existiitg written trcaiy, which
ex t ~ y p ~ r h e relates
si to a niatrer which the partics diù not intend to regulate
inforinatly-a consideratiori the wcight of which increascs in direct proportion
to the importance of the pr-nvision alleged to havc k e i i modified.
32. In conclusion regard niust bc hiid to treaties which specificalIy prescribc
ihe iiiethod of their amendnicnt. In principIe it niust be opcn tu States to deier-
mine the proccdurcs wheietiy IegaI relationships between them arc io be cstab-
lished or oItered. Whcre ihey havc dorie w, any üttempt io achieve the .-me
rcsults Iiy differcnt methodr; rnust. it is submitted, be ineffectivc in law. See in
this regard, the follvwing passage from the scparalt opinion of Sir Pcrcy
Spencer in iiie C,'rrfairi Exp~?nscsc a x :
"It (i.e., subscquenr conduct) may . . . provide evidence from which to
infcr a new agreement . ~ i i hnew rights and obligations between rhc parties,
iri cffecc superimposed or btised upnii the tcxt of the treaty and urnending
the saine. Thi.~ Io tier u ypecr of sabseyuenr condüct i s irreknrnr for presetft
considerofion since no c:rncirrfnienio j f h e charter M M occur
~ excepi prrr.s~<uf~t
tu Article 108 af'the Churnr I." (Italics added.)
Dut even if this had not k e n the trile legal posiiion, thc cxistcnce and availabil-
jty of a prcscribed proceilure would ai Icasi have militated very sironily
against any suggestion thal thc pariies ajiplied some diKerent prucedure la-
wards achieving the end Fur the attainmeni of \\:hich the prcscribed procedurc
was establishcd
1Y. Priictice n-ifhinthe Unirec?,Tarions
33. The effect to be given to pmctice within the Cnited Nations foll~ws
targely frorn the principlcs sct out in the previous parts of ihis Chapter. Sinçe
the Charter is ii rnullilateral treaty open to accession by ncw Members, the
siibsequrnt conduct of the partics ihereto a n bc of only Iirnitcd, if any, assis-
tance in its interpretaiion '. At any rarc, such suhsequcnt conduct can play no
role at a11 unlcss t here is sorne anibiguity or o k u r i ty in the tex1 ' and unless the
condrict pemits of only ofie infcrcnce O.
34. As regards rnoùificaiion, the Charter itself provides the merhod of its
amendmcnt, thereby excIuding a n y possibility, which might othcrrvise have
existed, of moditiçation by suhsequent practice '.
Vide para<. 10-13. s~tpm.

Cerrain E.xpensw of tlie L'iiirtrl Nittfuns, Advisor: Opinion, 1.C.J. Repurrs 1962,
n. -191.
' -
Vide para. 12, suprct.
Vide paras. 20 aiid 25, sttp~g.
Vide para. 23. supra.
"!de paras. 23-24, supra.
Vide para. 32, sitpra.
35. If inodifîcation by subsequeni conduct of thc Menihers were neverthcless
to & perinissible, ii could onIy bc hetd to have occurrcd in cxocptional cases
where nll the Members (acting in accordance with theeir proper or osicnsibly
propcr constitutional prmsses) didclosed a cIear intention tu effect such a
modification '. Tn view of the existence of the express provisions for amendment
in Arricles 108 and 109, it is hardIy conccivable rhat such an intcntion would
evcr be aptiblc of k i n g cstablished
36. Thc filial question which arises is to what exteni the practiw oforgansof
the Cnited Nations (as dislinet from parties to the Charter) mmay bc of reIevance
to the presenr topic. During the San Fraricisu>C:oritèrcncc it \ a s decided no$
to make :.pecial provision for ihe inlerprelation of the CharterJ and gencral
principIes mus1 accordingly appIy. As an aid to intcrpretation, practice within
an organ zould, it is submitted, have no greriter probative value than the con-
duct of the iiidividua1 rnembers rcprcscntcd therein would have had if pursued
outside that organ '. Xndced, the prohatiw value of conduct within a United
h'ütions crgan wauld ofren be Iess than that of conduct pursued outside-the
activities iif the United Nations rcquirc continuous participation in rnatters of
widel y vais ing importünce for direrent Memhers. In thcsc circumstances poli-
tical exigcnciaq wauld encourage a tendency on rhe part of Members not to
insist on a strict adhcrcncc to thc Charter unless their own inrerests wouId be
jeoparùizr:d by a depanure therefrom '. The greater Frccdom of action ourside
thc organi~ationrnight lead a tribunal to stlach greater weight to conduct in
that spliere.
37. As regards modification of the Charter. the various rirgans may have a
rolc to p1:iy in the evolution of practices which are not inconsistent with the
Charter arid which relatc to the interna1 ivorking of the organization 6. But in so
far as a madification would affect the rights and obligations of Mernbers of the
United Nations, it is siibmitteù that the organs of the organization havc evcn
Iess capiicity to achieve such a resuIt hy its practice than the Members have. An
organ does not usualty ccinsist of rcprcscntatives o f al1 Memkrs, and it can
take d~isionsdespilc the dissent or abstention o f somc repracntativcs. In thcsc
circumsta~iccsit woiild Iie quite anornaIous to al tribute to the organ it.self any
cornpetence to effecl rnodiiiutiom of thc Chartcr. Sm in this regard lhe follow-
ing staterrlenr OC Professor G. 1. Tunkin (1-epresentinpthe USSR) in thc oral
procecdin1:s of the Ceriain i7x~rrsr.ucare :
"The cornpetencc of cach orgin of the llnited h'atiunu is dctcrmincd by
' Vide paras. 19-31, supra.

Alfred Verdross suggcsrs in an article entitled "Kann die Gencralversamniliing
der Vereinten Nu t ionen das VoIkcrmht wei terbilden?', Z%Pichriftjür nrr.r~~ndisckcs
ofeirrfich~aRecht rrnd Viifkervechr.Vol. 25 ([Y%), p. 695, that practiac r d the United
Nations could infornially modify thç Charter on1y if such prac~icein tKect comptied
with the provisions of Articles 108 and 109.
UXCIO ~ I I E S . .Vol. XIIJ, pp. 709-710.
Cer~ainE . Y ~ P R Sof
P Sfhe United Nmions. Advirory Opinion, I.C.3. Reports 1962,
p. 192. (Scparate opinion of Sir Fercy Spender.) Sir Gerald Fiumaurice apparently
attachcd somewhat greater valut to-consisteni practice of United ~ a t i o r korsans
{ibid., pp. :2(31-202).
' Vide Hcrnhardt, op. cir.. p. 169.
Vide, i:.g., Holloih~ay,K., Modrrn Trends in Treary Law (19671, p. 91; Gross.
L.. "The United Natians and the Role of Law", InIeunarional Or$ani:ation, Vol.
XlX, No. 3 (1965): p. 540, footnore 7; de Visscher, Ch.. Les efecrivites dit droit
inrrrnuiional priblic ( 1 9671,p. 54.
If so, it would seem io lie appropriate for the Uniied Nations organs,
throrigh their collective action, to accord it the right to represeni the Statt
in th: Organisation, even thouph individual Members of the Onanisation
refuse, and rnay continue to refuse, to accord it n~ognitionas the lawful
govenimenl for rcasonu which arc valid under iheir national poIicies I."
9. During the Fiflh Session of the General Assembly, this niatter wiis
cxtcnsivcly dcbated in the Ad Hoc Political Comniittee. The rcprexntativc of
Cuba sut mitted a diaft resciIuiion which proposed certain requirements for
recogniticm, narneiy effective üut hority over the iiational territory;general con-
sent of the populatinn; ability and wilIingness to achitve the purposes of the
Charter; :lnd respect for Iiurnan rights and fundarncntal freedorns 2.
In the ùtbate which followed, divergent and contradictory views wcrc
e x p r e s d . Sn, for insrance. the United Kingdom reprcscntative urged accep-
lance of (lie singIe objoctivc tcst of effective crintrol SSimilar points of view wert
expressed by the representatives of the USSR 4 , PoIiind ',and others. The debate
as a whol: was sunimed iip by the reprcscntative of Uruguay as follows:
". .. some preferred to have no decision on thc mattcr by thc General
Assetnbly al the currcnt session ; some favoured and others opposed pre-
cisc critcria ;still others favoured lhe eslabIishmcnt of definite criterla after
obtaininç the advice of thc Intcrnat ional Law Chmmission, the Interna-
liona1 Court of Justicc, the Sixth Comiiiittee or the Secretary-GerieraI,
Icüvi~igwide Iati tude for the consideralion of speçific cases. Certain dcicga-
tions thouglit the Committcc and the General Assemhly could reach a
decision without such help 6."
10. In thc rcsult, the Cieneral Assembly ultimately adopted the followiny
resolution by 35 votes to 6 wiih 9 abutcntions:
BK THE UNI.I.EU
"396 {y). RECM~WTION NATK>KS
OF THE I<EFRESEF~T,\TION
OF A MEMBER STATE
Cotuidwing that difficulties may ariw regarding the representation of a

Mcrnbcr Statc in the United Nations and that there is a risk that confiicting
decisions rnay be reachd by its various organs,
Considering that it is in the interest of the proper functioningof the Orga-
nizatian that there should be uniformity in the proccdurc appIicabIe
wlienever more than onc authoriiy claims to k the government entitIed tn
represent a Mernber State in the United Nations, and this quest ion becornes
the siibject of controversy in the United Nations,
thüt. in virtue of its composition, the General Assernbly is
Consi~i-irleriti~
the organ of the United Nations in which consideration cun best be given
to the views of aII M e m k r States in matters aflecting the functioning of the
Organiznlion as a whole,
' SC. O.R,op. rit., pp. 22-23.

GA, OR, Fiflh SCSS.,Ad Hoc Pol. Cornrri., Summary Records oi' Meetings. 30
Sep. to 14 Dec. 1950. 18th hfccting (20 Oct. 1950), pp. I 1 1 - 1 12.
ibid,p. 1 ia
' Ibid., 19th Meeting (21 Ott. 1950). p. 122.
Ihid., ï3rd Moetinp (26 Oct. 1951i), p. 153.
Ibid., :!4th Meeting (26 Oct. 19501, p. 159,
404 NAMIBLA (SOU'I-H W E S T AFRICA)
terrns of .4rticIe 27, paragraphs 2 and 3, from 7 to 9.In al1 other rcxpects, the
article has remained unchmgcd since the inccptian of lhe Chürter.
The questions crinsidered in the present section arc:
ci) whcthcr rhe words "inciuding the concurring votes of the permanent rncm-
bers" in Artidc 27, paragraph 3, preclride thc taking of valid decisions if
one tir more of the permanent members voluntarily abstain from voting
{i.c.,abstain othenvise tlian pursuant to the proviso to the paragraph) ';
(ii) whether rhc practice o f the Council in this rcgard has modified the provi-
sions of that paragraph in any way; and
(iii) whether certain meritbers of the Council should, in tems of the provisu to
ArticIe 27, paragraph 3, havc abstained in thc voting on cerlain of ~ h re-
e
solutions relevant io the question kfore the Court.
The% three questions wilI be cvnsidered seriurim.
If. The Kequirernrnl of the Concwring Yoles of rhe Perriinnent M m b e r s uf ?lie

Council
13. Tht: relevancc of the first question posed arises frorn the fact rliat in aII
the Secur,.ty CounciI resoIulions now in issue. one ar more of the perrnanenr
members abstained from voring. Kesolution 284 (19701, which contained t l ~
rcqriest fcr an advisvry opinion in the prcsent case and accordingly forrns the
basis of rt e Court's jurisdiction, was declared adopted despite the abstertt ions of
Poland, tlic United Kingdon1 and the USSR '. In addirion the reprexntativeof
France reqriested a scparate vote on the phrase ". . . notwithstanding Security
CounciI r:soIiition 276 (1970)" which was retained despitc four absteniions(by
France, Poltrnd, the LSSR and the United Kingdom)
Resolui.ion 276 (1970) was declared adopted on 30 January 1970, despite the
abstentioiis of France and thc United Kingdorn '. -,
In bvrk. these cases al1 the non-absraining memhers voted in favour of the
rwlutior S. The composition of the Security CounciI on both masions was as
f0lIows :
Peri~tunentMernbers: 1. China; 2. France; 3. Union of Soviet Socialist Repub-
Iics; 4. United Kingdorn of Great Britain and Nortlrern IreIand; 5. Unired
Statei of America.
Non-permanent ,Wetnlrers: 1. Burundi ; 2. CoIornbiii; 3. Finland; 4. NepaI ;
5 . Kid~aragua;5. Poland; 7. Sierra teone; 8. Spaiii; 9. Syria; 10. Zanibia.
And ihe same situation concerniny abstentions prevailed iriith reswct to al1
other relevant Sccurity Council rcsolutioiis on South West Africa.
14. Thc: application of the nrdinary principles of interpretativn sel out in
Chaptcr II above, renders the ineaning of Article 27, paragraph 3, ctear and
unarnbiguous. An "affirmative vorc of nine tnenibcrs" is required by the Arti-
cle for lhe validity of a rcsolution, and it is frirrher provided that in this affirma-
tii'r: vote i n u t & iinduded "the concurring votes of the permanent members".
As a matter of language. an abstention does not amuunt to a mncurring vole.
Moreover, an "afirmat ivc vote of n ine mernbcrs" cannot be sai d to it~cl~tdc thc
-..--
The expression "voluntary abstention" wiil be uscd in rhis seme throughout the
present section.
2 Vide IJN duc. SCPV. 1550 (29 July 1970), p. 81.
ïbid., pp. 75 and 71-80.
' Vide IJN doc. SiPV. 1529 (30Jan. 19701, pp. 83-85.
votcs of the permanent int:rnbers if une or more of them was absent or ab-
stained from vuting '.
15. The considerat ions nlenlioned in the iinrnediatcly prewding paragraph
are, it is subrnitted. vaIid even when regard is had only ro the EngIish tex1 of the
Arlicle. Howevcr, rhe French and oiher texts, which are equalIy authentic 2,
place the matter heyond doubt. Thus the French text reads:
". . . un vote afirmatif de neuf de ses membres dans Icqucl sont coinprises
les voix de totu les meinbres permanents". (Ttalics added.)
The othcr tcxts art: siiiiilar.
16. Not oiity is the wording of the artide dear and unarnbiguous, but refer-
encc tu lhe truvnrix prépur&foires rrcveciIs that the text in fact correct ly reflects
the intentions of iis aiiihor:;.
nie voting formula whiçh was ultimately embodicd in Artidc 27 of the
Charter was agreed upnn al thc rnceting at Yalta betureen the Govemments of
the ESSR. the United Kiiii:dom, and the United States of America, in Febru-
ary 1945 '. This formula gave rise to much criticism, confiici and contro\'ersy at
the Sm Francisco Confereiice particuIariy by reason of the veto puwer which
was rescrvcd for thc permarient niernbers. During the course of the Con ference,
the effect of ahstent ion b~ a permanent member also receivcd sonte attention, as
will be seen in the sucweding paragraphs.
17. O n 22 May 1945 a Slrb-Coinmittee of the Conference subrnitted a q u a -
tionnaire concerning the voting procedure in the Security CourrciI to the Four
Sponsoring Govemmenls (IJSA, lJSSK, Unitcd Kingdom and China) in order
to obtain clarification of kticlc 27.
Amongst these questions wcse two which had a karing on the present q u e
tion, the more pertinent k i n g the followjng:
"If a motion is rnoved in the Swurily Council on a marter, other than
a rnattcr of prwdiire, under the general words in paragraph 3, wodd the
&.qienrinn frmn wrirfg ,3f any une or the pernianent members of thc Secu-
rity Council have ihc . ~ r r t efecz
~i~ as a negative vote b y that nientber in pre-
venting thc Security Criuncil from reaching a decision on the marter? "'
The Four Sponsoring Governmcnts did not reply specifically to each qucstion
poscd but isued H generrd statement on 7 June 1945, which set out certain
considerations, in the lighghl of which these Governmcnts considcred ihat i t was
"dear what the answers I O the questions subrnitted by the Subcommiltee
should bc *". France subsec~üenilyadhered to this statement '.
Compare in this regard. Art. 18. paras. 2 and 3, whiçh refer to the votcs <if
rnembers "present and votin:r.
Vide Art. I I 1 of thc Charter. Conçerning tIie approach to rnultiljnguiii ireatics.
vide Art. 33 of thc Viennci Ccinveolion on the Law of Trea tics (UN duc. A!CONF-
39/27 (23 May 1969)) and :he comments of the InternationnI Law ~ ~ n i l i i i s s i o n
{Yeurbunk ilJ#lzeInfernriiivn(rfLuw tvrrimission 1966. Ytii. II, pp. 225-276). , -
For a suininaw of the history of the drafring <if the Cnarter, vide Chap. VIII,
para. 2, infra.
' UXCIO dws., Vol. XI. p. 707.
Althorigh by agreement iirnongi themselves specific rcplics wert preparzd which
werc. howcver. m i t ctirnrnür,icated to other delegarcs-vide Koo, W. (Ir.), Yoiiw
Prortdurrs iii Inrernarinnal P d i i i ~ Organizarions
i (1 941). p. 1 56.
UNClO docs., Vol. XI, 1,. 7 t 3. Only onc qucstion, whiçh is nor relevant beret<),
received a 4pecific rtply-ritir pp. 71 3-714.
Ibid., p. 710.
WItI'1-1.': STATEMEKT OF SOWTII ArRICA 407
deadlock. . . . filuch attention had bzcn paid to the etiwt of a negalive vote
bciny cr~.sfby a perrnanm Council member. but it was more likely in prac-
tice that a permanent rncrnkr who foünd hiinself in ü srnaII niinority
woiiId mercly abstuin koirt voting. . . . 'I'he Canadian aniendmcnt did not
toi~chthe fundamentdl issue of rhe voiirig forniulü, for it merely providcd
that übscnce from the C'ouncil would not bc equivalent to a ncgativc vole '."
At the request of thc rcpr~:sentative,ofthe IjSSK, thc Canadian i-eprcscntative
withdrcw lhis atneiidment. albeit reliictantly :.
19. The actual intentior,~ of thc Spomoring Poulers and France appear
cIcarly froni Iater statcmcnis by nienihers of their dcIcgat ions of fiigh oflicials of
their govcrnrrients.
Dr. {Iater Jiidge) iVeIlin::ton Koo. who wüs a meniber of thc Chinese dele-
gation. stared the following coriceriiing the qumtion now in issue:
". . . the question had . . . heen dccided by the C'ommittcc of Five The
repiy given by thc Cork~riiilteeta two questions ln the questionnaire relat-
ing to the ejlèct of abstcntions by a pcrrnanent m c m b r reveaIis that the
interpretation given to the word 'concurring' by the Sponsoring Powers is
suçh as to requjre thc posiliireconcurrence of al1 thc permanent rnernbers,
and thüt thc failure or irefusal of a perrnancnt iiieiiiber to vole, either from
abseirce of from del ikrare abstention, corntitiires a faiIute tv curicur in the
decision of the rcrnaining majority of the Security Council and, thcrefoie,
wfiuld scrvc to block an): action by that body in matters other [han procc-
dure, and wlien the atstaining permanent member was not a pürty to the
dispute '."
Ilr. Yucn-Li Liang, a mcmbcr of the Lhincsç deiegation to the Dunibarion
Oaks Meetiiig as wetl as to ihe San Francisco Conference and a fornicr Diiector
of the United Narions k g 1 1 Dcpartrncril, wrote rbe following:
"ln the consuitatiunj arriong delegationsof the Sponsoring Guverniiients
and France ar San Fraitcisco a strict view wüs taken of this requirenlcnt, and
the açrecrncnt rcached among thesc delegations was that the concurrence
of Ihe five permanent inernkrs should take the f o m ofafirt}~nrivr vuter of
al/ of rlietn in fuvoiir qr rhe decisiotr ,." (itaIi~3added.)
The Head of thc Lnited States hlegation to thc San Francisco Confercncit:
polntcd out in his report t i i the Presiclent:
"The fivc principal tnilitary powcn: fif our tirne are made perrnancnt
mernkers of the Couficil. Furthermorc, in order thal their posilion of
powcr and ttteir use a f pciwer mdy br: rnade to serve thc purpose of peüce,
- -
.
' ihili., pp, 515-556.

I Ihid., p. 516:
' The "C'ommittcc of F~ire"was a cominiitee of tcc-hniçal expcrts of the Four
Sponsoring Govcrnrnents aiid Fraiice which *as rcspvnsihle, inter ufiu, for formu-
lating thc attitude or the Fi*ie Powers on spec~ficaspwts of the Yalta formula and
also for drulring ihe above.,nientioncd F i v t Powers stateinent. Yiüe KOO.op. cit.,
pp. 121, 115-146.
Kou, up. cir., p. 156.
Liang Yuen-Li. "The St,tilernent of Disputes in the Securiry Council: The Yalta
Voting Forinula", H.Y.H.I.I.., \'<il. X X i V (1Y41), p. 358. The author ndded thrit this
.-tgrecment was not u?niiriunicaredto thc other dclcgations. alrhough, as noted above,
it was çIcarly irnpl~edin the Fivc Powcr sialement.
408 NAhIIBlA (MIIITH WEST AFR[CA)
it is providcd that they shall exercisc thcir power anly in agrt-ment with
cach rither and not in disagreement '."
In an ofîcial publication of the Iiritish Governrncnr in 1945 it was statcd:
"If any one of thcrn [the great Powers] i s a party to a dispute it has no
vote i i i any judgment which the Security Council niay protiouncc. In such a
case at least three elected siatcs must concur in the judgmcnt of t he Securiiy
C0un~:il.. , .
OnIy when erifBrcemen?niaction is ncmssary is the cvnzpiete i~natiirnityof
the Cr reat Powers ~Ewaysrequired 2." (Italics added.)
Furtherrnore, Mc. Joscf C. Cirew, United Sttitcs Acting Secrerary of Srate at
the time, rnadc s statement in 1945 beforc the United States Cornmittee on
Foreign Rr:lations on the Chartcr of the United Nations to the effect that i t was
the intention of the framcrs of the Charlm that the concürring votes uf al[ the
permanent nlcrnbers were rsquired 3. That this was the inicntiun is alm hnme
out by a report to the Presidcnt of the United Sraics bby the Secretary of State 4.
Mr. Edward R. Sietrinius, at one tinie a United States Sacretary of State and
oneuf the dcIcgates of the Enited States of Aineriw to the First United h'atinns
Assembly in London, staicd bcfore the United States Scnate Cornmittee on
Foreign RcIations:
''A rnajority of scvcn members which includes a//five uf the pcrt?iniietI!
rnerni5.w~is requjrcd in any decision by the CoünciI for ciealing with a
disputc cither by peacefuI means of hy eiiforwrnent action, except that a
party to a dispute must abstain from vvting in the paceful seitlerrient
stage "."
T'ltc Chairman of the Unitcd States Senate Comrnittcc on Foreign Relations,
Senator Trirn Connally, statcd as follows:
"1 spprehend rhat there may be somc question about the proviso in
which a mcrnbcr of the Security Council, if it is a pariy to thc disputc, does
not vote, and the other dausc that there shalI be fivc permanent members
vote kfnre positive action can be taken. Thc construction of that paragraph
was that t his proi-iso is an exception to tlie generd rulc,and whcrc a party
ta r he dispute is a mernbw of the Security CoiinciI, that there are then only
4 permanent members of the Security Council, exduding the party to the
dispute, that vote; in that case the votes of any othcr 3 non-perniamnt
rnernbers can he countcd fo make up the number of 7. In ail orkcr cases.
houevar, ike votes of 5 permuwnt mernbers are rpquired. 1wanted 10 inakr
-
Hcuriry:~hefore the Comniitte~on Foreign R~iariotzx,United Siaies Senule aii
the Clrarfrruf the United h'utinns, 79th Congress, Pirst Session (19451, p. 4 1.
otr rhc Churler of r11e Unirrd Nu!iorr.s, Cmd.
A C..omrt~~~nfriry (London:
HMSO. MisceIliineuus No. Y t 194511, p. 16. Vide also Kelsen, Fi., The t u w uf !Re
United hFut:iinr(195I),p. 261. footnote 4.
' Heurin~*sbelore rlw Cnmi~iitrceon Foreiffi Hehiionx, Unlrud States Senate on
the Churfer of the United Nutions, 79th Congres<, First Session ( t 945). p. 213. Vide
also Kelsen, op. rit.. p. 941. rocitnotc 1 .
Rcpori 10 iIie Prcsident b j rhe Secrprnr,v of'S!u~eon !lie Resi~jtznj' the Sdn Tmn-
C~.FCOCoqference, Dcpartment of Siait, Pubfication 2349. Conference Series 71. p. 71.
Vide also KcIscn, op. cit., p. 941, fcainute 1.
Heurings Before rhe Commirtu~~ un Forfign Kelufions, Unireci Srares SefInfc
tke Cliarter of flrc Unireri Nurions, 79th Cnngrrss, First Scssion (1945). p. 21 1.
410 SAhi[n[ A (SOLTH WEST AFRICA)
answered in the iiegative. Articlc 27, au W C saw, required seven affirmative

votes including affirmative votes froin alI the priiianerit memben: '."
22. Prof'cssorHans KeIsen, a noted auitiority on the United Nations Charter,
wrote in 1946:
"The ii~rirdingof Article 27, paragraph 3, hardly allows an in terpretatjon
other than that, if one or morc of the representatives of the Five pertnanent
rnernkers arc not presen t or al-istain from vot irig, no valid non-proccdurnl
decisii-in can be taken.The only exception tu this rule is the provision that,
in decisions under Chaptcr VI and under paragraph 3 of Article 52. a parry
to thc: dispute sliaIt ahstain froiii voiing. Sincu: this rulc applies to the
perrna.nent members, sirch decisions require only the concurriiig votes of
the rel>resenlaiivcsof thosc permanent members no1 parties to the dispute.
Of coiirse, if all fiue pernianeiit ineinbers, or any fivc rncmbcrs, are parries
to a dispute, the required majority of scvcn votes is not pnssibIe.
The Chaner ducs not provide a quorirnt for the voting procedure of the
Security Council. The autonornous rulcv of proccdurc to be adopted bq'
the Security Council iinder Article 30 of the Cliartei may cuntiiin such a
provision, but with rcspect to substantive decisions it could apply onIy
IO thc number of representativcs of non-permanent members w h o x
prewfice is necessary to enable the Secririty Council to tramaci busimss.
Thc rillcs of the prowdure adopted by the Sucurity Council would exceed
the authori7ation givcn by thc Charter if they provided ttiat ~ i o al[t repre-
sentatives of thc perrnaneitt rnernkrs iieed be preseni Io mukc substantive
action by the Security Councii effective ?."
But in a Iater work. publishcd in 1951, Prnfessor Kelsen appeared at firsr ln
accept that the wording of ArticIe 27, paragraph 3, was susçepf iblc also of thc
inlcrprctatbn that a valid non-procedural decision couId bc taken despite the
voluntary abstention of a pcrmanent rnember I Ie suggested that such an
interpretation might k based on the fact that in Articles 108 and 109, whcrc
the conditions for amendment to the Charter are dcalr with, the phrase used is
"including al/ permanent rncmbcrs of the Security Cauncil", whei'eas Article 27,
paragraph 3, does nui require the coiicurring votes of "aK' permanent mcrnbcrs
but only "thc concurring voies of rhc permanent members +".
Hoivever, in a supplcmcnt t o this work, Professor Kelsen abandoned this
argument, and stated:
".. . but the French tcxt reads: 'les voix de fous les membres permünents';
and llte othcr texts of Article 27, paraywph 3, have the sarnc wording.
Thcre can be no doubt tkat accordiltg to the intentions of the franiers of the
Charter the wncurring votes of ail the permanent niernbrrs art required '."
(Itatics added.)
23. The vieivs expreswd by Professor Leo CIross were to the snme effect. l-ie
wrote :
"Intcrpretaiion of ~ h ereqiiiremcnt [concerning the concurring votes of
Ross. A.. Consriiririoiz o f f h e Clnitcd Nafioiis (1950), pp. 83-84.

Kelsen, H., "Organisaiion and Yroccdurc of the Securiry Council of the United
Nations", IJarvnrd Latv Rwiew, Vol. L.IX II 945-19461, pp. IOYB-lUY9.
" Kclsen, op. ri;., p. 241).
Ibid., p. 24 1.
Ibid., p. 941, footnoic 1.
WKITTI~KSTATEMEPITOF SOUTH AFRICZ, 41 1
thc pcrnlanent ineinbezj, howcver. need givc risc to no serious differences
of opinion in view of tiie IegisIative history of Article 27 and the insistence
hoth liefrire and aftcr thc San Francisco Conference on rhe principlc of
unanimily of the permanent mernbers of thc Security Council. Any
ren~ainingdoubt might be set ai rest by reference to the equally authentic
French teïi of that paragraph which speaks of 'un vore ufflr>narifd~sept
de w s mcn~bresc h s .%que/ sont coingrises les voix de totrs tes tnmibres
perotur!eiits l." (Italics :idded.)
As already indicakd, th: Spaniski, Russian and Chinese texrs also cuntain
the w n d "all", and Prufessiir Grnss'conclusinn was:
"Thcre is searcely aiiy rriotii for doubt, tliercfore, that in matiers othcr
than thase falling undt-r Art ide 27. paragraph 2, and undcr t h t rnandatoi-y
ruIc of abstention und-:r the socond part of piiragraph 3 of ArticIc 27, the
afirmativc voie of a11 the five permanent inembers is required in addition
to the affirmative votc tif iwu eltxted rnernbers 2."
24. In conclusion, referr:nce may bc made to a staterncnt by the prescnt
Preçident of the Court, Sir rduharnmad ZafruIla Khan, in a debate in the United
Nations in 1949.1 le was rcportcd as fuIlows:
"The record of the voting in the Stuurity Council Iiowcver, discfosed
:kat one of the permaiient rncmbers. the United Kingdom, had rcgist~red
an abstcntjon. Acwrdingly, the provision of Articlc 27 of the Charter had
not been observed. . . .
He was avare that t3e Socurity Council had praceeded on rhe basis vf a
practice it $vas trying i.o establish whereby the abstcntiun of a permanent
rnernberin decisions of a subsrmtive nature was not to be treatcd as a veto.
Piiragraph 3 of ArticB: 27, howcver, did nvt mention the veto; it mcrcly
stipulated that the co,icrirring vo~esof the permancnt nienibers m u t bc
included in the sevcn o r more afirmativc votes necessary for the adoption
of substantive decisions. Morcovcr, regardlcss of the interpretarion p l a d
by the Security Corincil in i t s own practice on the abstention of a permanent
rnember, tlie Creiieral Assembiy was nui bound by any action taken by
the Coiincil which faifrd to comply wi th the expliçit terrns of Article 27.
The record of the Security Courtcil's proceedings further revealed that
wiîen the vote had becn taken, the I'rcsident hnd stated that aithough the
decision was governed by the rule of unlinirnity, the abstention of a
perrnanmt mcrnber did not invaiidate il, inasmuch as il had obtained more
than the sexfen affirmüii\le votes requircd by the Charter. Two rnernbers of
the Coiincif had takenc:xmption to Ihat interpreiation. . . .
Morcovcr, the United Kingdoni which had abstained from voting in
favour of the Couricil's rmrnniendaticin Io admit IsraeI to membership,
h;id borh generally s~:cificallymade i t clear that its abstention couid not
he construcd as an aflirmation . . . ClearIy, the Unitcd Kingdom had not
concurred in the deciiion of the Sccurity Cvuncil on the admission of
IsracI becailse il had nnr been satisfied that the applicant State fulfrllcd rite
conditions Iaid duwn in Article 4 or that the merits of thc case warrantcd
ari afirniative vote.
ln \*iew oT those con-iiderations, ~ h Comrnittt~
e had before it no kcui'ity
Gross. Yulc I.aw Jnurnrii. VoI. 60,No. 2 (19511, pp. 209-21 0.

Ibid., p. 210.
412 NAMBIA (SOLTH WEST AFR[CA)
Council decision which had k e n taken in accordance with the condi tiom
laid down in thc Charter '."
25. From the foregoing thert: can, it is submitted, be no doubr as io how the
Court wotild have interpreted Art ide 27, paragrciph 3, had it k e n called upon
to pronouncc upon the question now under discussion immediately aftcr thc
coming into fore of the Charter. It would have had before i t a text which was
clear and iinambiguous, which was in conicirmity wifh the actual intentions
of its autliors, and which was acmptcd by wnternporary publicists to mean
that no rejoIution couId hc sdopted hy the Swurity CounciI without the afir,
rnativt and concurring votes of ail its permanent members. It is thereforc
subrnitted: in accordance wilh the prinn'ple of contemporancily =, that Article
27, paragraph 3, niusl still beso ioterpreted.
26. The question may nevertheless arisc whefher, as a matter of interprela-
tian, a different result woiiId now be justified by rason of evcnts subsequen t
to the corriing into force of the Charter, '2nd particularly by the practice of the
Securjty Conncil irself, CIearljr such a resuIr cnuld not k achieved by any
p r m s s of inrerprdr(;rion. IVkatevcr value the praciice of an organization might
have as ari aid t o the interpretation OF its constitution, it cannot override the
clear meariing of the text, piirticularly where, as in the present case, the mcaning
accords with the acictual intentions of its auihors 3. The subsequent practice iri
the prcscrit case could accordingIy have affected the original meaning of
Article 27, paragraph 3, onIy by some prncess of niodification or amcndment
of its ternis. Whethcr such modification or amcndment has occurred wjll fornt
the su bjcct of the succeeding paragraphs.
I l i . The Eflkcr of the Procrice of the ~ o u n c itrp&
l. Article 27, Parafroph 3
27. Situ:= the laie 1940s, a large nurnber of Securiry CounçiI r&olutions on
non-procediiral matters have been declard adripted dapite ihe voluntary
abstcnrion of one or more OC its permanent rnernkrs '. InitiaIly t his practicc
was questioned by some of the non-permanent rnembcrs of the Council, but
after a cerfain stage it seems to havc ken follow'ed without dissent in the
CounciI. Also in the tieneral Asçcmbty and ehewhere Metnbers of ihr: Unitcd
Nations do not appear to have ohjected to this procedure in the pcriod between
approxirnctteIy 1950 and 1965 ;after which thc situation changed as will presen tly
bc shown ".
28. In Chapter II considcration was given to the cirçumstünces in which, if
at aII, a lreaty could be modified by the subsequent practice of the parties
thereto. It is subniitted that upon the applicatioii of the principIes there set out.
there is no warraiit foc holding that the practim rrferrcd to in the previous
paragraph has laçiiIy introduced a mociiiiution or amendment of Article 27,
paragrciph 3, which would enable the Security Council to take valid non-
proccdural decisions despitc the vnluntary abstention of one or more of its
permanent rnernhrs.
-. . .-
GA, OH, Third Sessiod, Part II, Ad Hoc Pol. CoinIn. Suintnary Records of
Meetinp,6 April-IO May 1919,4Znd Mceting ( 3 May I949), pp. 181-182.
'4Vide Chap. 11, para. 8, supra.
V i d e C'liap. II, paras. 23 and 33, sirpuo.
+ Stavropoulus, C. A., "The Practice of VoIuntary Abstentions by Permanent
Membersaf theSecurily Council undcr Art. 27,para. 3, nf the Charter olthe United
Nations", AJIL, Vol. 61 (1967), pp. 742 er s t q .
Which Stavropoulos puls ai the cnd of 1949-ibid., p. 746.
Vide paras. 33 to 34, infra.
WRITTIJN flATEMEhT COF SOU'M AFRICA 413
29. At thc outset i t should be rccalled ihat the vcry cxistencc of a principle
of modification of treatic:: by subsequent conduct is at present sübject to
considerable doubt '. Mort:ovcr, evcn if the principle were conceded, it couid
not apply to the Charter, which contains express provisions for its amendment
in ArticIcs IO8 and 109 '.
30. However, even if Articlcs 108 and 1G9 do not consritute an absoIute bar
to the informal modificali~nof the Charter, the existence of these Articles
rnust st least render it very ditlicult to riccept that siich niodificatioii has iir fact
been effectcd 3, particularl:~in rcspcct of a provision which is OF such great
importance in the whole scileme of the Charter as Arricle 27, paragraph 3. -The
clear conscni or al[ inernlxr Stares, manifisted ttirough thcir prvper constitu-
tional organs, would have to he prrived concIusively before such a modification
could te held to have k c n rstablished '.
31. In the instant c m the priciice in question hstd b e n pursued in the
Security Council, a body tvith a limited rncmbcrship, and i t can üccurdingly
not be said that al1 rnernbr:rs have participated in the practice. And although
the practicc was for many years unconrested, therc is noihing to suaest that
this lack of oppusilion \ '
a: indiiced by any dcsirc or intention to m d f y lhe
Charter-indeed, the prüctice appears t o have been accepted in many quarters
a5 k i n g in consonance with the Charter, a state of mind which is ex Iiypothe-~i
inoonsisteni with üny inteni: t o modify i t Mnreovei', it seerns inherentIy likely
that many States, whether rion-permanent mernbers of tht: CounciI or Mernbers
oY the Unitcd Nations generally, failcd to protest onIy bccause their own
interests were not detrirnr:ntally affected by the reIevant Security CounciI
rcsoIutions, and nnt hcau:c ihey positiveIy intended t o consent tn a rnodifiw-
tbn of fhc Charter which ivould bc applicable IO al1 futurc proceedings of the
CounciI. The lack of positive involvement of rnany States in the procedure in
quariun a1so renders it impossible to ascertain to what extent, if at aIl, iheir
treaty-makiny vrganscouId properly be said lo have advertcd Io ihe matter.
32, The uncerlainty which premils as to thc actcraj intentions of mernber
States is ernphasized whcn an atternpt is inade to determine the exact conlcnt
of any modification allegeii to have occurred. Fur here, distinctions rnay have
t o k drawn between the vvotiny procedures fnllawed in connection with differcnt
funçtions of the C:ouncil. Thus a ct.rtain procediire may h acwprable to Sratcs
wherc thc Council acts under Chapter VI of the Charter in pursilance of its
function of peacefuI settlemenr but not where it acts to apply enforement
ineasurcs under Chpter W. Moreaver, an allcred voting procedure might
have had a conscqucntiaI effect on the authority of Security C:nunciI rcsulutions,
as suggested by Professor Leo Grass &.
33. A furlher element ol'unccrtainty arises by reason of the amendments to
'.
t h e Chartcr which occurn:d in 19G5 Tf some informa1 nidiiication of the
Charier had in f a a becn dlècted by conduct prior to the-proposais for amend-
Vide Chap. II, paras. 26-29,supru.

VfdeChap. I I , parus. 32 and 34, supm.
Vide Chap. Tl, paras. 32 and 35, supra.
+ Vide Chap. TI, para. 35, snpra. IL might conceivably lx suffiïieni to prove con-
sent substanlially coinplying with the prcivisions of Articlc 108-vide ibid., footnote 3
to pari. 35.
Vide Chnp. II, para. 30, sitpru. Stavropoiilos f AJIL, Vol. 6 1 (1967). p. 737)
seks to justify this praçiice on rLie basis, inieralia, ofan interpre~atjonof the Chartcr.
'*Vofing in the Securic:! Council : A bstcntion in the Post-1965 Amendment
Phase and its lmpacr on Articlc 25 of the Charter", A l l t , Vol. 62 (1968). p. 3 15.
7 Vide para. 12, supra.
mcnt, it is difficulr to understand why it \vas nni p r o ~ r l defined
y and incorpura-
ted ivhen Article 27, pawgraph 3, was forrrialIy aniendcct. Thc nütural inference
to be drawn from ihis vmission i s that the sponsors of the ai~iendnientswere
of the opillion that there was an insufficjent niesure of agreement among
mcrnbcr Si.atcs concerning thc cxistcncc and ambit of ihe modification ro
secure its ii~wrporütionin the Clitirter in a c c o i d a i ~with
~ the requircrncnts of
Article IIR-which 1s in ilseIr a cogent indication that no modification of a
sufiicntly prwisc contcnt had k e n cstabljshed. And ihere is no siigges~ion
t hat nny modification was effected by wnduci subsetjuent tu t tic amcndnicnts '.
34. A second aspect or the arnendrnenrs of 1965 is their eKect upon aiiy
informa1 niudification which: dcspite the contentions advanced above, rnight
have coine into existence prior t o 1965. I t as a resul t or any such modification,
resoluiions of the Council prior to 1965 wuld vüIidIy have been adopted despite
the volunta.ryabstention of one or more of the pernianent niernbers. Ihe position
d that despile ttie absreniion of afi the pcrrnanent rnernkrs,
after 1965 . ~ ? o u lhe
a rrsoIiiiioil could he adopied by ihe votes of the non-permaiient mernkrs only
-a situation which would have k e n impossible in the snialler Security Coiincil
as originally established, in which the positivc votc of si Icüst onc permanent
member was necessary in order to make up ttie required nuinber of sevrn
affirniativc v o t a '. 'i-hw, if the suçgested nicdificiiiilion survived rhc 1965
amendments, it could have donc so only rvith a rnatcrially different content.
Tt is subniirted ihüt this result cuuld be justified in Iaw oiily by holding rhat
the formal amendments of I9h5 changed rio: only the express provisions of the
Charter b ~ i taIso al1 tacit modifications applying thereto. Apart from the
notional difiçiilties inhcrent in such a proposition, i t is clear tliat Ihe 1965
arncndrnents did nnt purporr to affect anyrhing other than the express provisions
of the Chrirter. rt is accordingly submittcd thüt the true effect of the 1955
amendments on any modification applying to the p r e ~ s i s t i n gcomposition of
thc Council wauId have b e n to extinguish suçh mudifiçaiion.
35. Posttrlating the prcvious cxistence of a tacit modification, and its subse-
quent extiriction as a rcsult of the forinal amendments in 1965, one rnust. it is
conccdcd, accept the passibility of its reviva1 or rcestablishmmt in a suiiably
changed form by conditcl alter 1965. Evidcncc of frcsh tacit agrccmcnt wouid
of course t~ required for this pürpose. In this regard it is pertinent to note that
at lcast twn Mernhers of the United Nations (Portugal and Soiith Africa) have
since 1965 exprcsstvi rcscrvations or objections concerning the purported
adoprion of non-procedural Security Council resoIritions in the face of voluntary
abstention by permanent rnemkrs ';and that in any evcnt thcre kas not been
any concordant practice l'or a sufficient period of time to enahle a cnnclusion
to be d r a w that any new snodifrcalio~hcis bccn tacitly cstablishcd.
36. Keference may at Ihis srage be made tr! certain cornmenls by Judge
Bustaniante in his scparstc opinion in the Certuin F x p ~ n s ~ s c a s1ele. said:
"1 t is already welI known that an unwritten amendment to the Charter
has taken placc in the practice of the Scuriry Council, narnely, rn the
: Vide for instance. Stavroniiulos. AJII .. VoI. 61 - 1967).

.. .W. 737.
Y i d ~para. 12. sai&. '
Vide letter daied 27 AD^. 1966 froin the Miiiister of Foreign Affairs of PortugI
addressed to the ~ecretsry-~eneral. U N doc. S/7271 (28 ~ p r t966) . in SC, OH,
Twcnty-first Year, Sup. for April, May and June 1966, pp. 59-62: Note Verbale
datcd 22 June 1966 from the Representa cive of South Africa to the Secretary-Gtn-
eral, U N doc. SC7392 (I July 1966) in SC. OR,Twmiy-first Year, S t i p . f o r July,
August ancl Scptember 1966, pp. 16-17; Itircr dated 26 Sep. 1969, From the Minister
o f Foreign Affairs of South Africa addressed :di>the Stçrrtary-General, EN doc,
SP453, Ann. 1 f 3 Oct. 196Y), pp. 21-22.
WUIR'EN STATFMENT OI: SOUTH AFRICA 415
eflect that ~ h abstenrion
e of a permanent Mcmbcr prcsent al a meeting is
not assimilated to th;: exercise rif the righl to veto. O . ( h i h i ihis type of
'
\
amenaineni muy he hyally repucIic~redin a ~ i v c ncase by inwking rire tex!
has irdertnketi
oj'rhe Chorrer ( A r / . 27, para. 3 ) . since nu pernioncnr ,bienil)~*r
ro uppIy ir wirkout r~ver.vrutions;but in the case of rhe Congo, of thc
permanent Membcrs absttiining, none asserrcd that its abstention was to
'
be regarded as a veto ." (Italics added.)
Judge Bustainante thcn prcrceeded tri exarninc certain siibsequent Security
CounciI resoIutions, and IinalIy rciiched the conclusion rhat latcr raoIu(ions,
une of which was passed without abstention by a permanent rnember, had
ratificd the earlier ones Z.
If the whole of Jiidge Bustamante's rei~oningd e ~ n d c dultirnalely o n Iiis
finding of ratification: his attitude would not necex~arilyhe jiiconsistcnt with
that set oui iierein S. However, it would appcar that he aIso reiied upon an
"unwritten amendment tl, thc Charter", and to that extent his opinion is
aiithority against thc cunt<t~tionsadidvanceci in this Chaptcr.
Tt is rcspstful ly submitted that t h e relevant passage from the opinion pro-
çseded from a false prernise and is consequently unsound. Judge nustainante
appears to have asumcd t hat the voting procedure in the Secürity CounciI in the
respcct in question. \vas the concern of only thc pertrianent menibers, and that
on1y thosc members uwuld cntirld to invoke the texi of Article 27, paragraph
3. It is submitted thai ihis is not a correcl approach. Thc Charter is a mtil tilat-
eral trcaty, and al1 partics therero are entiticd ro insist on cornpliancc thece-
with. This is not a piireli fnrmal or t t ~ h n i w ccintention
l --thc requil-einent of
complete unanimity on th(: part of the permanent rnembers does not enure only
io thcir orvn ndvantage, but serves in the gcncrül interest to guard against the
Council exercising its extensive powcrs without the active suppori of its perma-
nent mernbers; 'Ihthis cxlcnt it also reprcscnts a protection for srna1Ier States,
which should not be expected to compIy with Sccurity Coiincil resolutions
unlcss they were odoptcd *ilh the positivc conçurreiice of the wrmancnt nieni-
bers.
37. 'I'he praçtiçal irsipoi,tance of this aspect may k sccn from ihe foIloiving
exunipIes. In the debate preceding thc icadpt[oon of Security C:ouncil resolution
376 (I970), the iqepresentt!tivcof the United Kingdom. a pertnanent nlernber
which abstained in the voting, said:
"As regards the sul)ject of today's meeting, 1believc that the position of
my Governmcnt is sidficiently wcll known 10 makc i t unncccssary for rnc
to repeal it in dctail. . . . We have conristcntly drawn artention to ~ h prac-
e
tical considerarions thai WC bclicve have t o be faced and to tlie need for the
United Nations to act onIy within its capabil i ties. However much wedeplorc
il, Souih Africa is in façt contrnlljng thc Tcrrjlory or South Wcst Africa.
WC have made our rcjoction of this state of atfairs ç l a r to the Soiith
African Govertln~ent.-I'hc action which we can take, however, is limitd.
We have made no :;ecret of OUF oiun inabjlity to contcmplate action
which would mpidly turn info complete econoinic warfare againsi South
Uniieii Noriotu ( A rrick 17. piai-a~ruph2, of rhr ch~:horier).

Curlaiir Erpcris~su f t h ~
Advisory Opirrioii, 1.C.J. Rcporis 1962, p . 29 1.
Ibid., p. 292.
Although it might raise difficuftquesiitins, whicli are not material at prcsenr,
concerniog the ratification of invalid resulutions.
416 NAMBIA (SOUTH WEST AFRICA)
Africa. Wr have expIained why we have fett lhat ihcadoptionof resolutions

which arc incffective or inoperable cannot scrve the interests of the peoplc
of the4Territory or of thc United Nations; and for aIl rhese rcasons we have
abstaitted on a number of resoIiitions, nolabIy General Assernbly reso-
Iution 2145 (XXI) of 27 Uctober 1966, Secürity Council rewlution 26-4
(1969) and Sccurity Coüncil resolution 269 (1969).
I t wiIl therefoineconie as no surprisc to the meinbers of this Council
~ h o iwl! crinno! on this orcnsion give our s~tpporito the rlrclfr resol~rrionbe/ore
irs, since Ihe basis of that rcsoIutinn lies of course in thoseearlier resolutions
on which we hrtve already absiained in thc pasi. Mareover, in some respects,
ncicably opei4ativt paragraph 5, the draft resolution seems tu us to ignore
sonic of thc circumstances to which 1 have aIready referred. My Ciegurwt~
wiif rhrrefore ubstrrili in wtîiig otz ~ l fdrafI
~ : resoIutinn befure ss '." (Italics
added.)
Althouyh t hc cesulut ion was adapted, it c1earIy did not enjoy the support of the
prmanent rnenlber wncerned.
Another example is apparent from the attitude of the reprcxntative of the
LSSR who in thc dcbate prewding the adoption of rcsolution 284 (1970) stated:
"The Soviei delegation wishes to express its serious doubts with regard
to thc provision in the draft resolution conccrning recourse to the Inter-
national Court of Justice to rcqucst an advisory opinion on the queslion of
Namibia. This approval, it seems to my dekgatiun, cannot be regarded as
an cffcctivc rncasure which could conlri bute to the withdn\vaI of the South
, adoption of such a decision
African racists from Namibia. M o ~ o v c r the
would deIay the solution to the prohlern of Nairiibia. It would crcate i1Iu-
sions i:on~rning the possibiIity of a solution to this prohlern by legal
means and nvt by the taking of serious political measures by the Security
Council.
In vicw of these considerations, the Soviet delegation wiII take its
positicn accordingIy whcn thc draft resnlution cornes to a vote 2."
In the event, the Soviet delegation abstained in ihc voting although the rewIu-
tion did not bear its approval.
These exi:ractsare typical of many and show how Security Cuunçil resolutions
have k e n <IecIarcdadopted in circurnsianccs in which they not only lacked the
positive support rif aII rtie permanent members, but were actually considered
undesirable by some of these mernkrs.
38. What cIcdrly ernerges is ihat, wcrc thc Socurity Council able to act validy
despi te t h e vnluntary abstention of one o r more of its ineinbers, al1 the Members
of the United Nations wouId thereby be deprived O € an important protection
a c c o r d 4 tllem in the Charter-the unanirnity of the permanent members of
thc Sccurit:, Council on non-procedural matters.
39. The aforesaid argurnenis Iead, it is subniilted, to lhe conclusion Ihal the
Charter dom not permit the adoption of non-prwdural Security Council reso-
Iutions in tlie face ofthe voIuntary abstention of one or more of the prmaiient
me~nbers.This concIusion rcnders it necessary to give brierconsideration to the
leml effect of resoltitions declared adopied despile non-cornpliunce wiih the
terrns of A:,:ticlc 27. paraçraph 3. It should bc notcd that this probIern wouId
arise to sonie extent whcthcr or not the contention5 advancd above are correct.
' U N dor:. SIPV. 1529 (30 Jan. 1970), pp. 17-18.

U N doi:. SiPV. 1 550 (29 July 19701, pp. 53-55.
WRiTTFN STATEMENT OF SOUTE< AFRICA 417
Evcn if ir bc ampted that the Charter had, by subscqucnt practice, becn pro-
perly modifiod to permit a changed voting pattern, a number of resoIulions
adidoptai prior to or during the period of gestation of the modifica[ion wouId
have beeir invaIid, or at Iezst OF doiibtful valiùity. Had no such modification
been effected, the number of such resalutions would, of course, be very much
largcr. But in ncithcr cvent would this nmssarily cntail rhc cornpletc nullity
of al[ such resolurions and of everything done in pursuance of them. I t seems
cIear that in international law acts which were initially invalid may be validateci
by acquicsccnm, 11apscof tirnc, cstoppel or sirnilar processes '.
This wouId lirobably have happened in the case of a11 thnse resolutions,
originally invalid. which wtre adopted prior to 1965, and possi bIy even in the
casc of somc of thosc aùoptcd subscqucntly. Huivever, since the South African
Government has clearly not acquiesced in any Security Council resoluiion rele
vant t o the question or Soiith West Africa $ it js no1 nccessary to pursue the
mattcr furthcr.
40. For thc rcasons afcrcstatcd it is subrnitted that al1 non-promdural
Security Council resoIution:; which are relevant to the present cxse are invaIid
and void of cffcct by rcason of thc voluntary a bsten t ion in thc voting by certain of
the permanent members of the CounciI.
41. 'I'here is. it is submitred. a further respect in which the Security CounciI
did noi comply with the requirements of Article 27, paragraph 3, dealing with
voting on non-prxedural matters. In so far as it is relevant to thc present ques-
tion, the proviso to that paragraph iays down that "in decisions under Chapter
VI . . . a party Io a dispute 5 halI abstain from v ~ t i ~ g "Sccurjty
. Council resoiu-
tions 264 (I969), 269 (1969) and 276 {1970), c1carIy relate to non-prwxduraI
matters and, as will be shou-n in Chapter V, j&, those resolutions could only
have been aùoptcd by the (YounciI, if at aI1, iinder Chaptcr VI of the Charter
and, therefore, constitute "c.ecisions" wi thin the meaning of the above provisu.
The question which arises hert: is wheiher certain members of the Council
shouId nor have abstaincd i i i the voting on the resulutions conccrnd. It wiII be
shown in Chapter IV, infra, that if the Judgment of this Court in 1962 relevant
to the existenci: of a dispuic in thc u n i k d Nations was correct '.
then there
exists a dispute on the question of South West Africa hetween South Africa and
a n u m k r of meniber State. of the United Nations consistiiig probably ofal1
thoçi: which v o t d in favour of Cientra] Aswirlbls resolution 2145 (XXI). At
al1relevant times 13 of these same States were reprexnted on thc Security &un-
cil and if is subrnitted that in accordance with the proviso to Article 77, para-
graph 3, aIf 1 3 should have abslained in ihe voting on the various resoIutions
in qiiestion. In fact, cxcept in the case of resolurion 269 (1969)where orify two
of them abstained ', a11 13 \rited afirmativeIy
Vide Latiterpacht. E., :'l'he Legril E f ~ tof IllcgaI Acts of Intcrnatiunal Or-
ganisations", +nibridge Essa 1,s in Ini~rnoiionniLaw (1 9651, p. 88.
Vide footnote 3 to para. -35, sirprir.
Soüih W ~ . rAJiira,
t Pr~Iim J ~ r d ~ m é ni.lC.J,
;irar.v Objcc~iom, , Keporis 1962, p. 345-
' Finland and tbe I J n i i 4 Sraies-vide IJN dnc. S[PV. 1497 (12 Aug. 196%
12-15. France and the Uniied Kingdom which also abstained did iiot vote in ravour
of G A resoturion 2145 {XXI).
Vide UN docs. S!PY. 1465 (20 Mar. 1969), p. 71 {resolution 264 ( 1 969)): SIPV.
1529{30Jan. IY70), pp. 83-85 {resolution 276 (1970)); wd S/PV. I550(29 JuIy 19701,
p. 76. France and thc Llnitcd Kingdom, which abstained on these three resol$ions
also abstained un G A resolution 2145 IXXJ).
418 SAMIBLA (SOUTH WES'r AFt11Ch)
Had thr:se S~aicsabsrained, the Council could not, of course, have adopted
the rafnluiinns. since ihe requisite nine atlirniative votes would have boen Iack-
ing, and i t is acccirdingIy contendcd that thcir failurc ta abstain renderd the
adoption .>f the resoIutions concerned invalid and of no IegaI eli'txt l.
E. The Yon-Procedurd iilature of Securify Council Hesoluticiti 284 j1970)
42. Thr: next question io bt: wnsidcred is rvhcther the adoption of Security
C:ouncil rcsoIution 284 (1970) can be resarded as a decision on a procedura[
mattet wilhin the aiiibit of ArticIe 77, paragraph 2, of the Charter. If not,
i t follows from what has bcen stated in the preceding pamgraphs that the
resolutinn was not vaIidIy adopted, and that the Coiirt i s consequently pre-
cluded It-cbtii answeiing the present rtyuest for an opinion.
43. Thr: Charter ilseIf contüins no definition of "decisioiis . . . on prow-
dural inaiiers". Ho~lever,according to the ordinary rnming of the words, such
drçisions ;ireconfined io ihosc: rvhich rclatc solcly to the intcrnal firnctioning and
structure .d a pariicular argan (;ri casIl, the Security Council) and create tegal
rights?coiiipetcnces and obligatinns for that organ, its subsidiary bodies ur its
nienibers yuri ~nernliers,which can only be excrcixd or carricd out within the
framewvork of the organ itsclf. In contras!, a decision wnuld be a substantive
one if i t has externa1 legal effect, i.e., if it creatrs rights, cornpetenlTs and obIi-
gafionç for vther biidics ur pcrsons.
In terms of the Charter the Court has n o power to give, or to offer to give, an
ndvisory opinion proprio ir~ntit:i r can acl only when sei;led of a cornpeten1
request2. It fotlows that such a requcsi confers upvn thc Court a concrctc
competcnce to consider i t and, if deerned advisable by tlie Court, to accede
thereto. But since tlie Court curnot be said to bt: a part of the interna1 structure
of(hi:Securi ty Council, it is submittcd that a decision of the CnunciI to request
an opinion cari consequently iiot be regarded as a decjsioii on a procedural
matter.
44. This conclusion appcsirs to bc bornc out by the staienient made in Junc
1945 at the San Francisco Conference by the Sponsoring Governments, and
acceded to by France, to which rcfcrcnce was made abovc '. One of the qucs-
t ions put to thcx Govcrnmenis was :
---. - ..
: 11 is also t r i be otiserved th& at Ieaçt Iive of the States whicli voted nttirinatively
f o r rrsiiIuririns 264 (t969), 269 (1969) and 276 (1970) were ainong tiiose States wliich
requested ttte convening of the Council in ordcr to considcr rlic question of "Nami-
bia" (vide Li: dacs. S!9090 (14 Mar. 1'159), and Add. 1-3: Si9359 (24 July 1969);
519372 (1 Aug. 1969); and 5/9616 (26 Jan. 1970) and Add. 1-3 (dated 27. 28 and 29
Jan. 1970 rcspcctivcly)). -45 regards resolution 264 (1969): the States concerned were
Algeria, Nepal, Pakistan, Smcgal and Zamb~a:as regards resolution 769 (196'1).
ihey werr: the szimr five Statcs with thc addition of lolornbia; and as rcgards rcso-
Iution 276 ( 1 9701, iliey were Rurundi, Ncpal. Sicrra Lconc, Syria and Xarnbiii. As
wilt appear froiii Chap. \?, infiu, if the 1962 Judgnicnt avere tu be rcillonred in the
relevant rrspcct, these States mus1 he regardecl as piir1it.s i ~ni dispure witli Soutli
Africa ovc:r Soutli Wcst .\Fric3 and, i t i s subrniiied, should llierefore have abstziiied
in the votiog on the relcvant resolutiuns. Had they done so, tbeii together with the
rither Siates which abstained on these resoluiions. there could at n o tinie have bceii
more tiiaii cight votes cast in fariour of tlie resoliitions (vide note 4, p. 417) and.
consequently, the restilutit>ns çould not have becn validly adopted-
Roserine, S., The Law and Prarticp of the Inr~rndional Cour1 ( 1 965), Vol. I I ,
pp. 540-5<i9.
' Vide para. 17, strpru.
W R I ~ T C NSI'AT~MENT or:SOL'TII AFRICA 419
"Would the veto be applicable to a decis~onof the Çecurity Council .. .
tn ~ e u jit~iiciahlc
~ r di:pure tu tht: InternationüI Coiirt of Justice '7"
The Five Pou7erStatemeiit ineludcd the foilowing:
'-.. . under the YaI ta IorrnuIa a p r o ~ ~ d u rvote
a l will govern the dccisions
made undcr the cntirc: Section D of Chapter VI. This nieans that the
Council will, by a vote of any scven of its menibers, adopt or altcr ils rules
of procedure; dererrniiie the method of sclecling its President ; organize
itself in such a rvay as to l x ab[e to function coniinuously; seIect the tiines
and places of its regular and special meetings; cstsblish such bvdies or
agencies as il may deem necessary for the perforrnai-tceof its funçtions;
invite a mcmbcr o f th: Organization not rtpresented on the CounciI tn
parlicipaie in its discussions when rhat Member's intcrcsts arc spcciul ly
affeçted; and invile any Siate when i t is u party to a dispute being considcr-
ed by the raunciI to psrticipüle in the discussion rdaling 10 that dispute.
Furthei, no individual n~enlberof the C:nunci t can alonc prcvent consid-
eration and discusçion by the Council uf a dispute or situation brought to
ils attention under pariigraph 2, Suclion A, Chaptcr VITI. Nor cm parties
to such dispiite lie prevcnted hy these riierins t'rom k i n g k a r d by thc Coun-
cil. Likewise. the rcquirement for unanimity of the pernianent members
camot prevent a n y mrniber of the Council fl-om reminding the rnernbers
of thc Organizaiion of ilieis general obligaliona assurned undcr thc Charter
as regai-ds peaceful sctilcmcnt of international disputes.
Beyond rliis point, rlecisions and actions by the Sccurity Couiicii may
weII hiivc major pu1iti:aI consequences and inay even initintc a chain of
e ~ ~ e nwhicli
ts might, in the end. rcquire the Council under its responsibil-
itics to inbloke measures of enforcetrieiit under Section B. Chapter VITT.
This chain of cilcnts Ixgins when the CounciI decides to make an invcsii-
gation, os deterinines iliat the time has crime to cal[ upon States to settle
thcir diflerenct5, or ni:ikes recornmendalions to the parties. II is ro such
decisions and actions that unanitriiiy of the perrnanen t mernbcrs applieç,
with the important prcaviso, rcferred to abovc, for übstentioi~from voting
by parties ro a d~sptite.
To illtistratc: in orticring ati investigation. the Council hau to consider
wliether the iiivestigation-ivhich may invoIvc cülling for reports, hcaring
wirnesses, dispatching a cnmmission of inquiry, or other means-might
not furthcr aggravatc the situaiion. After investigation, ihc Council must
deterinine whether the continiianm of thc situation or dispute would be
Iikely to endanger inteinational peace and security. If if so determines, thc
Council rvouId bc unt!er obligation to take Îurther steps. SimiIarly. the
decisioii to innke recornmen&tions, even whcn al1 parties request i r to do
so, or 10 cal1 upon par!ies to a dispute to fulfit thcir obligations under thc
Chartcr, niight lx iht: first step on a course of action front which the
Security Coiincil could withdr~wonly at thc risk or failing to dischargr: its
rrsponiibiIities ?."
45. Ic will be obçerved i hat iir this statement a subsimtive chharacter was
attribured also to deçisionç which tnight crcate "external" obligations, rigbts or
conipetences. Comrnenting therwn, Dr. Yuen-Li Liang h s remarkcd :
"In ihe context of tl-,eJoint Statcment of the Sponsoring Govemmcnts,
CXCIO docs.. Vol. XI, 1). 704.

Ibid., pp. 71 1-712.
WRITTE.~ STATEMEX or; SOUTII AFRICA 421
meiiibers of the Securi ty Coi~nciIthal th? ddasions set forih in the anncx to the
rcsolut ion be deemed prowdural l.
'I'he Tntcrirn Cummittee cc,ncludedthat a reqüest to t11e Cour1 for an advisory
opinion is a procedural deciijun In introdiicing the reIevant draft resohtion
in the Ad lluc Political Corninittee the Unitcd Stittw: rcprcsentntive çaid:
"With mie exception. the h f t did no more rhan repeat the decisiom
listed in the first conclusion af ihe rnterim Cornniittcz. The onIy decision
which had bwn ornitietl was the one wherehy the Securily CounciI could
request a n advisory opinion from the International Court of Justice on
Icgal questions. I'he United Starcs &lcgation was convinced that such a
docision shou[d aIso b: regarded as procedura[. In view, however, of
certain objections raiseil in that connecrion by other dclcgations, it had
agreed ta delete that decision from the Iist which had k e n submitted 3."
In the rcsult thc anncx to the resoiuiion as eventually adopted ais# contained
no reference to a request for an opinion. If xems clear that this itcm was dclctcd
k a u s e the sponsors of the draft resalutinn wereconvinced that the neçessary
n~ajorityin support of thc inclusionofthe said iterncould no1 be obtained.
49. There has been a wide divergence of opinion amongst writers on the
question as t o ivhcther a decision by the Seciirity Council (and, in the tirne of
the I.eague, the Council theiwf) to rcqucst an opinion, is to be regardcd as a
praccdural or substantive ciCiecisinri.Some maintain that i t is a substantive
decision +;others that it is a decision on a procedural matrcr '; and siil1 others
that ii is a procedural decisian only if thc rcqucst concents a question of
proccdurc
For presenr purposes it sii:Yic~to sriy that the writers rallinp into the second
group fail i o fnrniulate a convincing critcrion for distinguishing between
proccdura1 and substantive decisions, and that even if the views of the fhird
group were to be adopted, the present request would sti1I bc invalid since the
qitestion clearly does not relate to the proccdurc of thc S m r i t y CounciI, but
on thc conlrary, to the suhtantive rights and obligations of States.
50. For thc reasons statcd above it is consequently suhmitted ihat the adop-
tion of remlution 284 (197qi was not a dccision on a pmwdural marler, and
that S~IICGrhree perrnment inembers of the Security Council abstained fmm
voting, rhe resolution wüs noi validly adopted.
F. Tfie FaiIure of the Swurity Couiicii to Invife Soufh Arica

to Particlpate In Its ilismmions
5 1. The last question io bv coiisidered in connection with ihe forma1 validity

of the relevant Security CuuricjI rcsolutions is the eFîect of the Council's failure
' Il~id.,tirst operative paragraph.

GA, O R , Third 'icss., Sup. No. IO. p. 14.
j GA, OR, Third Scss., Part II, Ad Hoc Pot. Ct,rnrn., Summary Records o f Meet-
ings, 16 Nov. to 9 De&.1948, pp. 197-198.
' Vide, cg., the writers rtfe:re<i to in para. 45, supru.
Vidr, e.g., authors cited bi, van Roijen, R.D., Procedure-Kwesries in het y ~ f -
krnhndxrechr { t 933, pp. 1 32- 1 34: Dahm. G.. Vdikerrechr (1 96 I j, Vol. II, pp. 22 -
222: Jirntnez de Aréchaga, op. cii., pp. 8.9.
Vide, cg., authors ciied tiy van Roijen. op, ci/., pp. 1 29-132; McNair, A. D.,
"The Council's Request Tor r:n Advisory Opinion rrom the Permanent Court of
lntcrnaiional Justice". AY.B.!.L., Vol. VI1 (19261, p. 13; Dubisson, M.,La Cour
int~rnarionaiede Ju.r!fce (' 1 T H ) , p. 307.
to invite South Africa t o participatc in the discussions which preceded the
adoption of ihose resolutions. Article 32 of the Charter, in so far as it is hcre
pertinent, providcs as follows:
" h y 1Mc.rnbx of tlie tiriited Nations which is not a ~nemberof the
Securit): CciunciI . . . if it is a pürty to a dispute under conïideration by
the t ~ c u r i t yCatincil,.shalI be invited to participate, withotit vote, in the
disctission rcIating t o thc dispute . . ."
South Arrica was ai al[ relevant times ü Mcmbcr of the United Nations but
not a rnt:rnber of the Security <:ouncil, and if, as this Court has dccidcd, the
question of South Wcst Arrica iu to be regwded as a dispute between South
Africa ai-idother Mcmbcrsof the Lnited Nations ', it is submirted that Arricle32
imposes upon the Swurity CounciI an imperativc duty to invite Suuth Africii
ta participale in its discussions wlienever the dispute is under considerat ion
by the <:ouncil. This rhc Counçil Pded to de-not only in the case of its
rcçoiution 284 (1970) but aIsri in the case of its rcIatcd rcsolutivns 264 (19691,
269 (1 969) and 276 (1 970).
52. That the provisions of Article 32 are rnandarory appears frorn the
wording or rhe Article itself-a party t o a dispute shaU bc invitcd io par~içipatc
in the discussion rclaling to the dispuie. Unlike ArticIe 3 1 , in terrns of which a
Mernber of the United Nations not representcd on t hc Cuuncil "may" participate
in the discussion "whenever [he (Council) considers t hat the in terests of rhat
Meniber are spwriaily affected", Article 32 lcavcs no discrciion lo the Council-
it nirtst invite the participation of an unrepresei~tedState which is a party t o a
disputc undcr considcration. Thar is rht ordinary rneaning and naturaI effect
of the words "shall he invited ?".
53. Morcciver, in the practia of the S m k y Council itself, "on al1 those
occasions in shich the Articlc was considerd appiiable Ihere haz never k e n
any exptrssian of dissent as to its mandatory charactcr . . . 3" In 1946 the
Counçil'.; Corniiiiltee of Experts did not consider i t advisable IO provide in the
provisiotial rules of p r o ~ ~ d u r"for
e Members invired in accnrdancc with
Art icIe 32 of the Charter hecaidse IIIP incirotion ru a ,We~nberu~uierrhis Article
is ~ > ~ ~ z r f c"'. o r y statements emphasking the peremptory nature uf the
~ f And
Article have freqnenrly becn made in the Council. Ttius, in connection with the
C.'orfir C.'hntinel question, the I'residenr of thc CounciI (Australin), after quoting
Article 32, strrwd:
". . . there ivoiild seent to be an obligation on thc Council lo invile Al bania
topirticipatc in thc discussion of ihis iietn of the agenda ?''.
Soalk Wt'sr Ajrica, Pftliniinary Ohj~riions,judgint~nl.I.C.J. Reports 1962. p. 345.

This qiiesricin is riealt with furlher in Ckap. TV. i n f i . q.v.
IL is 10 he ohserved that in Chaprer VI, section D, paragaph 5, o f ihe Dum-
barton Oaks PropcmIs, tbe çrirresponding phrase was "sfiouid bc invifed". {LNCIO
dots., Vci1. 111, p. 1 1.1 This phrase, which ai thc San Francisco Conference was
rctained by Cornmiss~on111, \vas clianged to its prcscnt form in the Tentative Drafaft
o f thc C'o-ordination Comrnittec and thc Advisury Ctirnrriittee of Jurists {ibid.,
Vol. XV. p. 73). and is in Iinc with arncndmcnts proposed hy C~aiiadaand \7enezuela
in Cornniittcc IIlJl {ibid.- Vol. XI. p. 781). 'Ihe change indicates that thc framers or
the Chartcr intcndcd that thc issuing of an invitritioii by the Council was to he
obligatury in case of Art~clc32,
Reptrrory of United hroiionrPractire (19SS), Vol. II, p. 183.
+
Y& SC,OR, Firsi Year, First Series, Sup. No. 2. p. 22.
SC,OR, Second Yrar, No.6, 95th Meeting, 20 Jan. 1947, p. 123.
WRITTEN STATEMENT OF SOIlTil AFRICA 423
And, a i the following meetirig of the Council, he observeci:
"Thc CvunciI has i~iviiedthc Albanian C;overiiment to participate in
the discussions of the toinpIüint broiight against it. TRat is only fair, and
i t is a procedii,~which is enjoined by thc Chartcr. The obligation of ihe
.
Councii . . as rcqrtirc(i by the texr qf !k Charter and as requi red by the
dictates of common ju:;tice, i.7 ru i.rs~reIIIC Mvitn?iofi and give [he Albanian
Govemmeni a reasanable opporttinity to bc rcprcscntcd '."
(Italics addcd.)
On anoihcr occasion r he represcniative of Syria deciared:
". . . Article 32 States !ha[ siich rnernbcrs 'shall bc invitcd to participatc
. . .' Thc Sccurity Couiicil shouId no[ wait until such a party to a dispute
makes an application to be he;irri. 'I'hat party should be invited ipsofirrto
without any requesi on its part "'"
According to thc rcpresentaiive of the LSSR :
"Article 32 essentialy provides thar wlien internationaI disputes aie
uncier considerrition hy the Security Council, both parties rnust bç invi~td
to bE hcarda~ils niectirigs 3."
And during discussion of the Vier-Nam question, the representat ive or the
CSSR, after quoring Arricle 32, decIared:
". . . 1 should think it iiecessary to o b x r v e Ihat if the Government o f the
Dernacratic Republic <rF Vie{-Nam wishcs tu takc part in thc rnee~inysof
t hc Swuri i y Council, ?r will be the uliliga!iori I rrptat: rhe obiigo~ion-af
!ke Security Corrizcil, i n accordancc witli the Article 1 have just quored,
ru iii vile Jorrhwirh rrprrasriltufives oj'IIIC D C I ~ I O C Repubiic
Ï ~ ~ ~ C of V!cf-:V~nr
nr otice ro tnkepart in ~ f , Cow~cil's
e wurk 4.'' (italics added.)
Many furiher cxamples cf statemcnts to siniiIar effect are to be found in the
records of the Security Couticil ",
54. The mandatory charsicier of Article 32 has aIso bcen emphasizcd by the
publicists. Bcntwich and Martin, forexan~pie,put the matter thus & :
"Any Membcr Statc: not rcprcscnted on tlie Council is cntirled, m n
rtruflcr ofrixhr, to participate, witho~ila vote. in ihe discussion OF any dis-
ptite 10 which it is a party.TheCouncil i n u . ~ r i s s ~ t invi
~ a ntatiun. but the Mem-
ber is cntitlcd to dcclin{:."{Italics added.)
In his rvork dealing wi tli the Security Council. Professor (now Judge) Jiménez de
Artchaga stales:
"'I'here is a differenu; betweeti the invitation under Article 31 and under
Arricle 3 2 : whilt in ttie Lirsi case an invitation may bc exiended if the
CounciI considcrs that the interests of the Mernber are speciaIly affected,
in tlie second, as was :.uid in the Report of the Cornmitlaz of Experts of
I h d . , No. 7, 96th Meeting. 28 Jan. 1947, p. 133.

' Vide Rrper~oircof the Prricricc of Cuitnçil 1946-1951. p. 126.
the S~cirri!.~
Ibid., p. t 22.
Sc,DR, Nineteent11Year, 1140th Mceting, 5 Aug. 1963, p. IO.
Vide. for instance: SC, CE(, Second Year, I8Ist Mccting. 12 Aug, 1947, p. 1933
(USA) and p. 1935 (China); thid., Fifth Yesr, 483rd Meeting, 4 Aug. I950, pp. 3-3
(USSR): ibid.. 488th Meet in:;. 17 Aug. 1950. pp. 2-3 IIISSR); ihid.,, Second Year.
lxrst Mccting, 11 Aug. 1947. p. 1920.
Churtrr of rire Llnired c i l ~ i o n ts1951f , p. 75.
424 NAMIRIA (SOUTHWEST AFRICA)
rhe W:curity Cauncil, it 'is mand-atory'. Thc CounciI is r e q u i r d lo invite
any klernber of rhc United Nations which is a party to a dispuiç '.
. . . ari invitation under Article 32 need not be requcsred; it must be issued
by iht: Council evcn if not roqucstcd by the State Party rn rhe dispute '."
Gwdrich andSimuns consider that under Article 31 ttieCoun~ijis"ubligiited"
to invitc a. piirty to a dispute ta participate in the disciissions. And Kelsen is
clearly of i lie sanie opinion 4.
55. The conchision fo bc dwwn from these arguments is ihal in failing to
invitc So~.thAfrica to participate in üny of l'ne discusions relating to thc
questioii cf South West Afiica, tlie Security CvunciI did not act in coriformity
with the niandatory provisions of Article 32 of the Charter. It is ticcordingiy
submittcd that thc various resoiutions adopted as a result of thosc discussions
were forinally defective in a vital respect and thus iiirra rirc.s the Coilncil and
of no legai effwi.
56. Foi thc rcasans set out in titis Clhapter and cven if i f can be said, despitc
the dou bt:; expresxd by some Slatcs uincei-ning the represeniation of China,
t h t the Security Council was itt al1 pertinent tirn~spropcrly constitured in
terms of the Charter, i t i s neverlheless submittcd that in adopting its wtriuus
resolution; relevant tu thc issucs now before the Court, the Council did not act
- -
in accord;ince wi th the procedures prejcribed in the ~ h a r t c rIt. is accordingly

contended t har a11 these resolutions were formallv invalid and of no IemI efkct.
Thus, rt:solution 284 {1970), which it is subrnitied, was a decision on-a rnatter
oihcr thari a prcrcedural rnatter w i t h i i ~the triuaning of Articlc 27, paragraph 2,
of the Charrer, waq invalid not only becaiise iit \vas adopted witliout tIie afir-
mative and concurring votcs of a11 the permanent members of the Council, but
alçu k a ù s c South Africa was not, in accordnr~cewith thc provisions of Article
32, invited by rhe CounciI to participate in the discussions preceding 11s adop-
tion.
On [he othcr hand. resolritions 264 ( 1 9691, 269 (1969) and 276 119701, which
wcrc cicarly resolutions ot' a non-procediira1 nature, were invalid not only on
the saiiie tivo grounds just rncntioncd? but also a n the further ground that
certain rncrnbers of the Council shouId. in ternis of the provisu to Article 77,
paragraph 3, have abstained in the voiing on them, but faited to do m.
Jimênel. de Aréchaga, op:.çir., p. 57.

riid,, p. 58.
. ' T ~ Lii?itpd
P Peuce anri Seciiriiy
hfafiom and tiri. ,Mni~tlenu;lcr uf Ir~rrrffaziunui
( 19551, p. 28. , . <. ,
+ Vi~ieK.elstn, op. ci!., p. 223. ...

WKIT'I-EN S T A l ' t 5 f t N Z ' OF SOUTIt AFRICA
CHAPTER IV
OIi THE COURT
TI-31S ~ l ! j ( ~ H E ï ' I O N
. .- ,
1. ln ternis of ArticIe 65 of the Statute of the Court, read wiih rhe provisions,
of the Charter, the Coiirt t?:riygive an advisory opinion on any legal q u c ~ ~ i o i t
ar the request of, itzrer a h i atlic
, Sccurity Courtcil.
It is cIear that .4rticIe 65 cotifers on the Cour1 a discretion whether or no!
to accede to a competent n:quest for süçh an opinion The Court itseli has'.
siated on a number of occasinns that even in cases where it is legiilly entitled
t o d o su, il is no1 obligcd toi:ivc: an ndvisory opinion '.
However, the Cotirt has refrained from forrnulating cr~tcriawhich cari be
applied in deciding wheiher in any parficular case i t shouId or should no1
excrcix- ils discretion. In th-. ftzterpretcttiun of Pcace Treniies case the Court
merely stated that Article t 5 of the Siatutc-is .permissive in thai il gives the
"
C-rt the power to e.arn~ne whether the circumstances of a case arc of such a
characlcc as shciuld lead it ro d~clineto answer a requat for an opinion. The
Court also pointcd out, hov~cver,that i t is an organ of the Unitcd Nations, and
that in principle a cnmpeteni request from anoiher urgsn should no1 lx refuscd '.
: In 1ht: Jlidgments ut-rlie Arlinirrisircrrivt. Tribtrnni of ~ h e
I L 0 iipon C :oriip!ainrs
Mudc againsr Unesco case, tlie Court went further by stating that only "conipel-
ling reasons" should Iead i t to reruse to give a rcquesied opiiiion 5. The rame
iitiitude was adupttd in thc Cerrnirr E~-ge~tses case b.
2. On the assumption that rhe prescnt reqiiest is a valid and competent one,
it is subntitled rhat there are indeed compell ing rusons why the Court should,
as a mattcr of judicial propricty, rcfuse IO iiccede to the request. These reasons
are as follows:
(aj Thc qucstion poscd by rhc Sccurity Council is intertwined with political
issues and lias a politic;.] background in which the Court iiself has pccorne
e m b r o i l d to an extent ;endering it impctssible for thc Court to exerci.~its
judicial function properly.
( h ) If the 4952 Judgnient was correctly decided in a respect to bc indicated $,
lhe relevant legal question in the present case relates to 'aii existing dis-
pute between South Africa and fither States,
Rownne. S., The Lus and P r o c ~ i cof~ rire Inicrnarionai Coicri, Vol. 11 (196S),
p. 708.
Vide, cg.. the advjsory 0.31nions referred to below.
Inrerprvrarion of Peace ??paries wRIi Bllfpriu, Hirnggary nnd Rnnrrriiiu, Fivsr
Pliasc. Adfisorp Opinion. I.C..I. Kcporrs 1950, p. 72.
' Ihï(i., p. 71.
' JEIJgnients ri/ rire Ali'minirtrrtril-e Trihunül of ~ h rI L 0 trpon Cott~phintsMude
A Jvisury
Unv~cu,
iig~iir~ l Opir!iun, I.C. j . R ~ y o r l r1956. p. 86.
cerf ni^ E ~ p t n s c sof the Ljfittd hrutions, Advisory Upinioi~,I.(,I. Rcpvrrs 1962,
p. 151.
? Snuth W ~ s Afiira,
t Prclini!norj Obj~rtion.~, Judpni~iii,I.C.J. Regurfs 1962. p. 3 1 9.
' ifide paras. 37-38, infui.
(cl Thc qucstion can onIy be answcrcd by dwiding, inter ali(~,disputed factual
issues.
3. As regards thc first rcason, the South African Governineni wishes to inake
i t clear ai the outsei that, in prescnting this argunient, it ducs not inicnd to
cast any refiectioii uri the standing or inipartiality of tlie Court or any individual
Meinber t'ncreof. However, in support of the conteniion that for the reasonç
set out (a! ahove the Court should refrain froni giving thc rcqucstcd opinion,
i i wiII bc Jernonstruted t hat ihere exist in ihe legül systenls of civilized countries
pnncipks--which have alsv been recognized in internaliona1 law-whidi
demand tl~atnot only should judges be impartia1 and unbiascd, but that
circurnstarrm should riot exist wtiich riirry give rise to i-errsoa or doubr as CO
their impartiality.
B. The Political hckground to the Question and the lavolvement

of the Court
4. States have at timcs contended thüt certain qiiestions rekrred to the

Court were not "legal questions" within thc contcrnplation of thc Chartcr and
the Statute of the Court, but in fact political ones which fell outside the juris-
'
diction of the Coiirt. As Rosennt points out, this coritention has been raised,
for the mmt part. iii connection with advisory opinions conmrncd with thc
inlerpretntioii of tlie Charter. In the Adniisb-ioncase the Court said:
" l r kas. . . been conttnded rhat the question put niust be regard4 as a
politicaI one and that, for this reason, it faIls outsidc thc jurisdiction of the
Coürr, The Coun cannot aitribute 3 political chancter to a rcqucst ivhich,
frarned in absrracr terms, invires il ro undertake an essentially judicjal
task, the infcrpretatian of a trcaty provision. It i s not conccrncd with the
motives a!iich may have iiispired tliis request, nor with the considcrations
which. in the concrele cases siibmitted for examination to the Secirrity
Councjl, forrned the subject of the excIiangc of vicws which tovk pIace
in that body, It i s the duty of the Court to envisage the question submitted
ro i t only in the abstract form which has k e n given ro it; nothing which is
said in the present opinion referss, either directly or indircctIy, to concrclc
cases or t o parlicular cjrcuinstances'."
I t will be observed that the Court, in uplioldiiig its jurisdiction, ernphasized
two factors, viz., that the question beFore it was an abstract one and rhat i t
invoived the interpretation of a treaty provision. T h e x is cIcarly no prwiçr:
Iine sepaniting "legal" and " p o l i t i ~ l " questioiis. and a "political" qucstion
niay also tir a "legal" one. Having foiind lhat the question under consideration
wiu: ü Iegal one, the Couri \vas consequently obviausly entirlecl Io accede to the
request to give aii advisory opinion irrespwiive of the political nature of the
question, if indccd it had such a nature.
5. Wherher the Court might, as a matter of propriety, havc rcgard lo the
political nature of a requesi for an opinion, was considered in the Ccriirin
Roseririe, up. ci!., p. 704.

Condirionsof Admivsiun uf lr Srtrrr ru !M~iril~ci~shiyin the Unilcd Nafinfis,Advisor)'
Opinion, iY48, I.C.J. Rcporlr 1947-1948. p. 61. Vide also Cornp~teficeof rke Gcnrrrrl
f o the t'niied Nations. Advisory Opinion, I.C.J.
Asseirzbiyfi~rthe Admissioir o f a S m r ~
Reporrs 19.50, pp. 6-7.
E~pensescase. The Colirt specifically rcicrrrd 10 its discretion providcd for in
Article 65 oi'the Statüte and thtnwntinued:
" n e Court finds n 3 'çompelling rcason' why il should no! give the
advisory opinion whjch the Gcnzral Asseilrbly rcqucsted by its resolut ion
. . . I t has bccn argucd that the queslion put to the Court is intcrtwincd
with political questions. and that for this reascin the Court should refuse
to givc an opinion. It is truc that most interprerrrtions of the Charter of
rhe United Natiunswill have politka1 significance, great or small. In thc
nature nf things it coi-Id not bc othcrwix. The Court, h o w e ~ e rcrrnnot
,
attribute a political chz.ractcr to a request which invires it Io undertake an
esçentially judicial task, nainely, the interpreiation of a trcaty provision '."
Tt will have bcen ubserved tha t the Court stressed the "essentially judicial
rask" involved in the intcrprclatiori of a treaty provision which precluded the
Court froni iit~ributinga priiitical charmer tn the rcqucst for an opinion. fi
did no! state that in cvery case it must lx ublivious to the pnlitical nature or
background of the question concerned. In none of the cases referred io above
did thc political backgrriunc: involve the Cnurt itsclf, and il is indecd obvious,
i t is suhmittcd, that in siich circurristances different considcrütions must
necessari1y a ppIy.
5. ln Chapter X i i t wjjl be demonstrated thnt a politicaI carnpaign, wilh
strong ernotional overtones, againsr South Africa led to the imtitution of the
Sortth Wpsr &fiiracasas by I.thiupia and Liberia. 11 was conRdentIy expected hy
certain Statcs [ha( the Judgment would hold that South Africa had violated
iis obligations under the Mandate 2 . i n the sçuceeding paragnphs it will bc
shoiw that when the Judgment of 18 July 19hG failed to fulfil theseexpecrations,
there was a violent rca~iion*hich took the form of verbal abusc of t h Court;
statcments of policy that nariona[ origin and pvliiical attitudes wouId te taken
iiito account in fiiture electicins of judges, tvhich policy, accorcling to cornmen-
tatom, had a miirkcd c1T~xtoii the elecrion of tive newjudgm in Novembcr 1966 ;
and which led to a rejection of the supplemcntary appropriation of an aniount
of 573,500in respect of the C'oüri for the 1966 financial year. It wiIl fiirthermore
be shown that certain Mcmbers of the Cuurl. as constituted ai present, wcrc
individuoIIy involved i i i the .iforesaid emotional poIiticaf campaim. In conclu-
sion i t will be subrnitted thai in thc Iight of the IegaI principIes to which reference
has k e n made abovc-and which wilI be set out in more detail-thc Court
should, in the exercise of i t s discrelion, refusc to üwede to the present request
for an advisory opinion.
11. The Recepfioa uf the Currur's 1966 Judgrn~nr
7. The Court's Judgmeni oii tlie Srçond Phase nf the Sourh West Africu
cuses was giveii on 18 JuIy 1966. Thc Twcnly-lirst Sessioii of the Gcneral
Assernbly comnienced in Scptcrnber 1966. Thc Juqgrnen t, the Cburt. and
individual Mcmkrs lhereof w r e immediately made thc targcls of nmr-hysteri-
cal abuse and vilification. Thc Judgment wws variot~slydescribed as"depIorable",
' Ceriain E.rpenses of ihc United ,Vutioris. Rdb*isor.v Opinion, I.C.I. Rcporis 1962.
p. 155.
Vjcft-.e.g.. staicmcnt made by ,Miss Smcllit (Janiaica). GA, OR,Trvcntieth Sess..
Fourth Cornni., I570t h M e e t i n g . 26 Nov. 1965, p. 328.
- And thcrç is n o reason tc. assume thai ihis policy was not pursued during the
I Y69 cfcctiun cil judges.
428 N A M ~ B I A(SOUTH WEST AFRICA)
"shocking", "shaineîul", "ti distortion of Iaw", "a denial of justic", "an

insult to tbe international conscience and to mankind", "one of thc most flagrant
denials of justice in its [theCourt's] history", "scandaIous", "a scandal without
pradent", an "infarny", "disgracefiil", "pzrvcrw", "scandaluus and wicked",
"iniqiiiru~is", "a veritable scandal", "shamefut~', "grotesque", "travaty of
justice" and "tangentia1 and dcvious I''.
Thc mmost vitupcrative attacks came from represenintives of ccrtain Afro-
Asian States. It is not without significance that, as will be demonstrated 2, it
was precicely these countries that for years hiid Icd the politica1 campaign
against Souih Africa regarding its adrninistrütion of South West Africa. When
the Court failcd to provide ammunition for the firrtherantx of the caiiipaigit,
the p o l i r i a l represmtatives of these States would nrit accepi the Judgment as a
judicial pronounccrnent but attrj biited a political character thereio, stating,
fur instance, that the Court was "a body which was inirnicaI to their interests ,3"
and that the only interesi which the Court "deen14 worthy of legai protection"
was that ol'South Africa 4.
8. The inosf serioris zspect of the dcbatcs was the reffecrions cast on the
standing and impartiaiiry of the Court and individual mcmbers thereof, and
direct and blatant a1Icgations of corruption and extraneous motives. In their
rnildest form thcy consisted of insinuationssuch as the fnllowing:
Mr. Grimes (Liberia) (quoting the President of Liberia, one of the Applicani
Slates)
"The dccision of the C'ourt, that Applicants had na IqaI interest in thc
cax. :ind its refusal to go inio the mcrits . . .savaur of caçuistry and legal
pyrotwhnics, uthich is, io say the least, most surpnsing and puzzling. I r in
fact gcneratcs unpIeasant suspicions about the Court )."
Mr. ~ a i f &(Sierra Leone)
"This [i.c., the Judgmeni] came as a great shock to my Govwnmcni and
to most of tlre reasonablc nations of the world. It dcalt a stunning blow to
the authority and integrity of ihc IntcrnationaI Court and raised serious
questi uns in the minds of thosc who cherish the value of thc rulc of Iaw in
international reIations 6."
-
"The decision irscif has sn shaken internarional confidence in the Court
as ta have broiight i t to the verge ordisrcputc '."
,Wr.Kapwepwe (Zarn hia)
". . . tlle International Court of Justicc at The Hague took six long years
'This wiIl appear [rom thgc~tractsfrnm srarernenrsqi~otedbclow and in hnnex A

to this Chapter.
Vide Chap. XI, secticin R, itifra.
' M r . Bakrito (Carneruoii), GA, O H , Twcnty-first Sess., Firth Comni.. 1124th
Mceting, I O Oct. 1966. p. 23.
* Mr. TIiiam (Sanegal), GA, OR,Tivenly-first Scss., 1414th Plenary Meeting,
23 Scp. I9M, p. 25. Vide also Mc. Binafi (Carncroon), 1412th PIcnary Meeting.
22 Scp. 1965: p. IO.
ibid,, I714lti PIenary Meeting, 23 Sep. 1966, pp. 8-9.
Ibid., 1419th Plenary Meeting, 27 Sep. 1966, p. IO.
Ibid., p. 13.
OF SOUTH AFRICA
W R ~ E I I STATEME~T 439
of costly Iitigatian . . . onIy to frustrate finally the wishes of the indigcnous
peoplc of South West I'rfrica, only to disgracc this our own Organization
by co\vardly shirking its responsibility to the peoples of the wurld, by
shamelessly judging no1 10 judge . . . '"
"There is no doubt ihat thiç judgrnent has reduwd even further thc
pratige of the Inientziional Coiirt of Justici: as iin instniment for the
perrceful settlernml of international disputcs 2."
Mt-. fk1puruga2u (Rwanda)
-
"The dccision of lasi J uIy was, in our cycs, a surprising and disappointing
contradiction, and WC wonder whether one can pIace any furfhrr trust in
thcCourt "."
firich Slim (Tunisia)
~Cfr.
"Many bcliçvc, us we do. that it Ii,e,, the Judgrnentl dcall a serious b[ow
tu the prestige of rhe Cuiirt as the judiciaI organ responsible for scttling
internationa1 disputes. I t should therdore not corne as a surprise that
driubt has b w n casion tlie usef'ulnessof the Court asat prescnt cvmposeJ4."
". . . my deiegstion fccl: that the Court's decisjon has givcn rise to well-
founded distrust and suzpicion as to fitiure dwiuionsof that high tri buna[ j".
9. n e r e were also more Katant statcmcnis in which the Caurt and Members
t hererif were aocuscd, cithcr in so many words or by the dcarcst implicntion,
of uIterior political inotivesandeven corruplion. Thuv i l was said:
"By its rehsal, in 19Sii, to give a decision on ihe substance of thcquestioti,
the rnternationat Coun.of Justice-lhat is, the seven Judgcs rvho voted
against the 1967 decision on compctcn~~--hasnot lived up to i t s resprin-
sibilitim and obligation:. How e[se crtn one interpret the so-mlled technical
Judgment deiivered on 18 July 1966 in circumstances that cast doubl on
the infegriiy of sonie of the Judges and un their impartialify? A gIanct: at
thc ntrtionali ty and çalihre of these seven Judges who chose to repudiate a
verdict of their own Court chat was of an irrevocahie nature, is enlight-
ening in ihis respect. It is enough to sce that thcse Judges are frorn
Cire-, ItaIy, the Unitcd Kingdom and France-al! countr~esthat give
tinqualified support to tlie rash policies of South Africa and secretly iiphold
rhat country because of ~ h enormous
e ~ r o f i t sthat their eonornies derive
from the pitiless implemcntation or the policy OF econornic and socid
slaveiy known as apartheid. As for the Australian Judge, Sir Percy Spender,
whosc namc, I think. means 'spendthrift' -he needs money-his deciding
l ihid., 1425th Plcnary Mccting. 30 Sep. 1966, p. 1.

= Ibid., p. 9.
Ibid., 1328th Plcnary Mcctiny, 4 OÇL.!966,p. 4.
Ihid., 1431st Plenary Meeiing, 5 Oct. 1966. p. 3.
$ Ibid., p. 13. Vide also th: staienienrs malie by M r , Yqru {Efiriopia), 1414th
PIeoary Meeting. 23 Sep. 1966. p. 3; Mr. Conntar~l.rrÿamy(Siqvpore). 1420th
PIcnary Mceting. 28 Sep. 1966, p. 12: Mr. El h u r i ( t i b w j , 1425th Ylenary Meeting,
30 Sep. 19M. p. 7; Mr. Adc;~o (A'i4trriuj, 1429th Plenary Meeting, 4 Oct. 1966.
PP. 2-3; and Mr. MiidenEe (ih'wnndo), 1439th Plcnary Mceting. 12 Oct. 1966. p. 1 .
some of the rnetliodç vrhich were eniployed in nrder to disquaIify some of
ihe Judges that shouId have raken part in muking a decision on rhis wse '.''
M r . El Bofiri (Libya)
"UnForttinateIy the Judgrneni of 18July hüs suggesled t liat the iiiterests of
international finsncc. vrhich is hand in gIove wi th the ràcist rcgime in South
Africa. niight influence even the highest international legat authority y."
1
%
. &kola (Congo- nrazzaïille)
"We wiinot understand how a few unscrupulous judges cc~uldhave so
Iightly shirked their cbligations whcn, on 18 J u l y 1966, iaking refuge
hehind rechnical qui h l i n g , they disinissed Ethiopia and Likria wi th
rcvolting cynicism and reaciid a decision favoiirabIe to racist Akita . . .
We may assume thar the motives which dictatcd this ùccision, . . . arc
totaIly iinrelated rn theCourt's funciion, which is to adrninisteriustice.
. . . . . . . . . . . . . . . - - - - - * * . . . .
Wi-rere does this victciry lie, if
not in the fact that the Coirrr, with a few
corrupt judges, has tipheld South Africa in its obstinate refusa1 to heed
the Gcncral Asscni bl y '?"
:W. Bortrhoko (Congo, Kinshasaj
"A sacrcd Mandate entrust4 to South Afrim has been travestieci and
betrayed in the most xbominable fashion and turned into a criloniaIist
instrunient for. rhe vileit and mcist contemptible servitude,. . . 1 regret to
have IO ricile ihat the International Curirc of Jiistice, the sanctuary of
iriternationaI iaw, ha', made itseIf acconipIicc in this unprecedented
scandai, so that we can say ol ii, aq Racine did of 3ero :
'Awotig inetf ns yef utiborti tlie rinine wiii bc FoaI insrth !O fhe foziie.~t
i y r ~ n ~'."
~~c'
Mr. Bttdo (Al bania)
"As far as urc are corioerned, the jiidçment of the Court, hvwever unjust
and mndalous, does surprise us. WChave riever cherished any illusions
about the Intçmarionat Cuuri or Justice, and that is, of course, weIl knawn.
..
Under the pretext of -3rocedural quibbles . the Court rcfused to pass
judgmen t an the subsrance aT a mat tcr concerning Sourh Africa's Mandate
over Soulh Wcst Afrira, ...
In so doing, the Couri has dernonstrated tu
worId opiiiion what the iiltegrity of jiidgs means as far as ihe inajority
of the rnemkrs of the Court are conccrned, arid wliat the international
justicc of thc Court itsclf is worth '."
1 1 . Iltre and there niore soher voiccs WCFC heard. The represcnralive of
South Africa pointcd out that oiher representativcs werc attacking not only
the cornpetence but also tlie integrity of jiidges who had mcrely done their
duty in çiving a judgment .Iccording ro thcir consciences $. Ile was joined b?
the rcprexntatives tif, inla. afin, New Zealand and F r a n ~who~ rejectcd any
Ibid.. 1422nd Ptenary Mileting, 29 Sep. 1966, p. 14.

Ibid., 1425ih P1enai.y hleetiiig, 30 Sep. 1966, p. 7.
ibid., 1431st Plenary hla:ting, 5 Oct. 1966, pp. 3-2.
Ibid., 1445th Plenary Meeting, 17 Oçt. 1966, pp. 11-12.
' Ibid., 11448ih Plenary Mrsting, 19 Ott. IYM, p. 1 .
IhirI., 1417i1i Plenary Meeting, 26 Sep. 1966, p. 1.
432 N A ~ ~ I R {SOUTH
IA WEST AIRICA)
suggestio~that individual judges had k e n lacking in integriry or tiad actcd in

respoiise to govermental p r s u r r : '.Thc rcsuit of thcse remarh was that their
authors ivere jojned with the Court as tarçers for attack arid abuse. This reactiun
is hest illiistrated by the ~ollowinystatemcnr madc by Mr. Tchcrnouchtchenko
of the B:+clorussianSovict Socialist Kepu bric, after Mr. Kamani o f Malaysia
had said * that his instincts miliiated againsi condanning thc Court and its
personnel :
"hlüny rcrnarks have already been rnade here-and justty so-about
the lnternationa1 Coirrt and about those judges who did everything in
their p w c r tu rcject the Iegitimate complainr lodged by Ethiopia and
Lihria. But we cannot overIook ~ l t efact that cvcn arnong thosc rcprcsen-
tatives who have spoken here, there are stilI advocates and defenders of
ihose judgcs. We even wi tnessed rhis ai our meeting this morning. Those
judgcs, as weli as tlieir advmatcs, prcfcrrd to close thcir cyes to the policy
of t h t Govtrnment of South hfriw vi.rd-vis South West Africa and to ihc
violation of international underiakings and decisiuns of rhc United Nations
General Assernbly '."
Many more examples of the abuse showered upon the Court and its individual
Membcrs can be given. I lowever, in order no1 to burdcn the text iinneccssarily,
fhere is attached to this Ckaptcr an Annex A containinç exoerptr; from relevant
statemmts madc during tlie Twenty-first Session of theGcneral Assembly.
12. Caupled with the aforesnid atlacks were suggestions, made by rcprcsen-
tatives of certain Staies, that the composition of the Court should be changd,
ostensibly "in ordcr to cnsure a more equiîable representalionof the rion-aliyied
countrics and the forces of progres '",but quite cIcarIy in an attempt t o ensure
that in any prissibIe future litigaiion concerning South West Africa nr involving
similar isiiies, Ihe politicai viervs of such States would be upheld. Thus Mr.
Yifru of Eihiopia "tated:
"WC have also b e n taught one cardinal Iesson, that is, we have io iakc
an active part in a11 the organs of the United Nations, incIriding the Intcr-
mticinaI Court of Jusiicc. To this end, we shall demand equitable repre-
sen tation on the bcnch of the Court, a representation cornmensurate rviih
our roIc in the United Nations, a reprcsentation which will aiIow LIS tocon-
tribute our due sharc to the fulfilment of al l aspects of the objectives of the
United Nations &".
And Mr. Mgonja of t h e United Repriblic of Tantania said :
"We believe that this experience-the most rocen: Judgrnent of Lhe
Intcrnatinnal Court-sad as i t is, has k n a salutaIy lesson to the newly
independent wuntries in their struggIe for ewecrive representation in a11
interriafional bodies '."
l ' Ibid., 1439th PIenary Meeting, 12 Oct. 1966, p. 12, MT. Corner (New Zealand);
-
p. 17, Mr. Seydoux (France).
GA, OR, 1Yicnty-tint Ses., 1449th Plçnary Meeting, 19 Oçt. 1966, pp. 7-8.
3 Ibid.. n. 16.
' Mr. Thiarn {Senegal), GA, OR,Trventy-tirst Sess., I414th Plenary Meeting,
23 Sep. 1966, p. 25.
' Eihiol~iawas one of the Appliçant States in the South LYcst Africa çaws.
CA, O R , Twenty-first Sess.. 1414tli PIenary Meeting, 23 Sep. 1966, p. 3.
Ibid. 1417th Plenary ,Uccting. 26 Sep. 1966,p. 19. W e also statelrient rriade by
Mt. EI Mtifti (Sudan), ibid., 1440th Plenary Meeting, 13 Oct. 1966, p. 16.
WRIlTE X STATEMEST OF SOüTH AFHICA 433
i 3. With these staternents shouId be contrasted statenients to tlie efect that
the c i u n <ohviously as theil constituted) cnuld not be enirusted wiih qitestions
rclating to the wclfarc of the inhnbilants of South West Africa. Thus Mr.
Baroody of Saudi Arabia stated :
"So cross oui the Iniesnat ional Court of Juslice from the book OP South
West Africa and any idea thal we shall ever derive any tangiblc rcsuIt from
approaching it l . "
And in the Fourth rsmmittee Mr. Nyirinkindi of Rwanda was reporteù as
follows:
"1-he International Court of Justice, whose rnembers should have the
higheçt rrioral quaIifica!ions, had xi an iniquitous prccedent in the case of
South West Africa. It had sided with the brute force of eviI, which was
what South Africa reprtsrnled. The iveIrare of the pople of Soiith West
Africa couId be cntruitcd neither to thc Lntcrnational Court of Justice
nor to Soiith Africa 2."
14. There can he IittIe tloubt that many representatives, in censuring the
Court and its individual Mcmbcrs, intended to cxcrt poIitical prcssurc on the
Court. Thc most striking ex:imple of rhc exertion of such pressure is to be found
in the rejection by the Fifth Cornmittee of the supplernentary appropriation of
the airiouni of $72,500 in rfsp~ctof the IniemationaI Court of Justiw for the
financiaI year 1966. Althoiigh the rcprcsenratives of Argentina and Norway
stressed that the Fifth Coniniittee was not concernsd with polilics, buf solely
with budgetary mat iers j, thc dixussiuns regarding thc supplcmcntary cstimate~
for the said financiaI year ivere intersjxrsed with attacks on the Court and its
Judgtnent 4. Tn the event, the sirpplementary appropriation for the said amount
or $72,500 was rejected by 40 votes to 27. with 13 abstcntions S.
I l i . The / n v o l v ~ m mof~ the C:oüri m Consiirrrfed ut Presenr
15. Mention has already k n made of the intentions expressed by represen-

tatiws of certain countries !hat rhc constititrion of the Court shoiild be aItered
so ihat it shouId be morc representative of such cnuntria~.Certain rcprcscn-
tativcs i n d d went further by implying that in future ihe politicrit views of
candidam should be takct~into account in the election of judgcs. Thiis Mr.
Murumbi of Kcnya stated:
"Before Ieaving this qtiestion of Sourh West Africa, my delegaiionwould
li ke to draw ihc üttcnxion of the General Assembly IO the composition of
bath the International Law Cominission and the Internatioiiat Court of
Juçtice.Kenyasupporth the enlargement of these two bodies to refiwt geogra-
phical rzpresenlation. But much more important than this cnlürgemenc,
Kenya woiiId Iikc to einphasize that when the tirne cornes for the Gcneral
AsscrnbIy to eIeci the new Judges, eiforls should be made to ensure thüt
nien of the utrnost inte;:ri ty are chosen. W e must try to awidei~cringtu rhe
ibid., 143 1st Plenary M c e i i n ~ 5, Oct. 1966, p. 14.

.. , -
Ibid., Fourth Conini.. 1 f 03rd Meeting, 4 Oct. 1955, p. 41.
ihid., Fikh Comm.. II2Aih Meeting, 10 Oçt. t966, p. 24.
' Ibirt., p. 23, pp. 23-24and pp. 24-25-statemenis made by the reprcscntetivrs rlf
Canieroon, Union of Soviet Sacialist Republics and Tantania.
Ibid., p. 25.
iVRITT1:K SI-ATE.MElrT OF SOUTH A P R l C h 435
"The inipact of the decisinn f i e , tlie 1966 Judgment] w u scen in rhe
eIection uf judges whch took place in 1966, It had &en expectcd that
Sir Kenneih h i l e y would succced Sir Pcrcy Spender, but this did not
happcn '."
18. Otlier wrircrs also o~mriientcdon the eletion of thc five new Judges.
K. P. Anand wrrite:
44
It was, . . . suggested that thc Court's rnenibership shouid reflect the
changed political si1uiltion and rhat it shauId coritain more Afro-Asian
reprexniation, if necersary, by an cnIiirgenient of the Court. Indeed, at the
first possible opportririity in 1966 itself the Arro-Asian euuntries exerted
a11 their pressurc to çIn:ct ftve new judges who swrned Io bc more sympa-
thetic towards their views. There rvas IitfIe rloai~trhol Vutzo~Itercase nws
brought by ifi'erenrpu.,iie.~ir wuuld incet n di#kretir fore l." (ltalics added.)
Elizabeth S. Landis, hating pointed out that African initiatives vis-&-vis
South Africa did tiot end ~ i t hthe adoption of Generat Assemhly resolution
2145 (XXI) 3, stated:
"Sincc ihe election of new judgcs tu the Internationat Court \vas xhe-
dukd for the 1966 Assernbiy scssion, Afriçans for the fint time cürefuIIy
screened al1 candidata;, and, wi th the ieassisiancc of their Asian coIleagues,
blocked thc clatjon OF Antonio de Luna of Spain, presuniahly because he
was a national of a colonial potver. . . .
Throughciut the A:i~mbly session there wcre repeated sirggestions,
frnni non-African sou]ces, that the unrcsulved questions in the Sourh Ives{
Afrircl C,'USES bc taken back ta the Court in one way or another. . . . How-
cvcr. the Africans werc not in the mood to gn back to the Coiirt ahout
anything. And althoiigh the balance of the Court probul>lv rcvcrtçd,
irnmediateiy after the decision, to une favoring rhe 1Yf-d niüjurity again, if
seemed biser, in any c:asc, to \mit until the arch-villaios were replaced and
rhe new judges 5ately instalfed. Afler fbe Ad Hoc Commirr~eniakes ils'
repurt in Apri!, new jirdiciul iniricrrivrs mny ngniii tie coiisirlered-pnrric-
afurly ifihey ure rukm crt U!kir,rpensc4." (Italics sd&d.)
And C I . Fischer stated (frecly translated):
"In I967? foliowinp thc 1966 elections [of new judges]. the develnped
countrics hsd oniy 5r.e representatives. Auvt ralia was elirninatcd, the
Greek Judge was rcplaced by a ncutrat, the Swede, I'etrkn. The attiriide
adopted by his gnvernnicnt un racial questions cnsured his victory ovcr
the Spanish and S\vi:~îcandidates. Africa retained two reprcscnüitive~
(Se~tegaland Kigeria) white Asia had four {Pakistan, Philippines, Japan,
Lebanon). At the mm,:timc, it would appear that the proportion of intcr-
tiationalists of world reputc was gettinp srnalier within the Court.
One sees in this evr>lution wiihout nny doubt the wcighr of the Third
World and particularl:~of thc youngcr Siales. 'Thc efforts which thes ii~üde
p. .- .
"The Enited Narinns, :;outh-Wcst Africrt and the Wortd Court", The Indinn
Journal of Internotion~iL U W Vol.
, 7, No. 4 (OCI. 1967), p. 521.
Studies in Ini~rnclrional 4djrrdiraiinri ('1969,91,p. 145.
Quoted in Chap.,YI, paru. 1, injilr. -
' "The South \ V a t Africa Cases: Remand %O the United Narioos", Curnril
Lon: Qunrrerfy, Vot. 52. No. 5 (Spring 11. l907), pp. 668-669.
WRITTIiN STd\TE.MEKT OF SOUTH AFRICA 437
tu such an cxtcnt t h a t political views and motives were attributed nnt only to
the rnajority judges, but also tu tr judge wlio did nor participatc in the 1966
Judgmcnt.
21. Iit the debares premding rhe adoption by the Security Council of the
resolution çontaining the prcscnt request for an advisory opinion, further
prilitica1 prcssure kvas b r o e h t to k a r upon the Couri, coupled with references
io its changed membershiri since 1966. 'I'hus Mr. 'Terence oT Burundi stated:
". .. it would h proycr to s i r e s that rhe International Court of Justice,
whose prestige was viotated by ihepartiality of some of its members in 19h6,
would gain in pre.rfige I>y nabpring a new ultiiude which rvouid r~liabifirrrre
~ k Cotrrr
e atid the Uniri:rl N~tiiorisas a rvlwk IV.(Italics added.)
Mr. Khatri of Nepal siaied rhat his deLegatioii would support the draft
rcsoIution if i t "wouid providc an opportunity for the International Court to
redecni its impaircd iniage ," while Mr. Mwaanga of Zarnbia referred to "sorne
Iingeriiig uiiceitainty" thar remailied about the opinion envisaged by the drak
resoIution "despite the change in thc Court's nientbership 3."
The irnplicstion is clcar; ~ h charrge
e in the Court's menibership renderd it
probable that it woüld gisc an opinion unfavoitrable to South Africa whjch
\r70uldserve "to rrdeern its i rnparted imagc", wouId cause i r tn "ga~nin prestige",
and would "rehabilitüte" ilself. By con trast, should thc opinion he fitvourable
to South Africa, the Court would fail to recieern its image and further damage iis
prestige.
IV. The i i volve
~ vienr of-lndividtral ,%fptrthcrs of'rhe Coarr
22. [teferencehas aIrcildy k e n made to the maitner in whicli Sir Muhammad

Zafrulla Khan bewmc invc~lvcdin the political rcccption of the 1956 Judgmcnt.
Hc was also involved in aitother manncr. Sir Muhammad Zafrullci Khan was
the Permanent Reprcscntai ive of Pakistan at the Unitcd Nations from Augiist
1961 uritil he kcatne a Menber of the Cour1 in 1864. I le was a Mernkr ofthe
Pakistani Dclegütions to th? Sixteenth and Eigh~eenthSessions(Le., in 1961 and
1963) of the Gcncral Asscmbly of [he United Nations+andduring those yearS he
on =casions acted as Leadtr of such Delegations. During both rhe said sessiuns
the Pakistmi Deiegation pl ayed an activc role in discussions and dccisions con-
cerning mattcrs in dispuic in the Second Phase of thc Soufh West Afi-icn cases,
inost of whicli are again i n dispute in the present proceedings. Starements made
on behaIf of the Pakistani Delegaiion, as well as resolutions supported by it,
w r r : strongly condcmnatory uf South Africa's policics and actions reIating to
South West Africü. Particiilars rhcrmf are set out in Annexes R and C tu this
Chapter. ,.
Moreovcr, Sir Muharnriiad Zafrulla Khan ~ 3 5 ,prior - ,to his .clwtion as a
pernranent Meniber of the Court, appointed as adhori Judge in the OUI!? West
Africn cases by Elhiopia and Liheria. H c is reportrd to'havc stated that this
was the reason for his disqualification in those prococding~". If so, tMs-reawn
worild, it is suhmitted, ret:iin i t s vaIidiry, inasniuch as the present procccdings
are in etfect merely a continuation of thc previous ones ". -.
UN d m . SiPV. 1550 (29 3uly 19701, p. 71. . -

Ibid,, pp. 38-40.
lbid, p. 53.
' Annnd, o p . cil., p. 138.
Vide paras. 35-41, in];-o.
73. Thr position of Judge Padilla Nervo is in ceriiiin respects siniilar to rhat
of Sir Muliaminad ZafrulIa Khan. I Ie was Chairman of the Mexican Dclegatiori
ta r he Gerreral Assem bly of I ~ Unitcd
C Karions during, intcr a h , the Fifteenih,
Sixiccnth imd Sevet?tet.~~rh Sessions of the Gssembly (i.e., in 1960, 1961 and 1967
respectively). During this period ihe Mcxican Uelegation also took an active
part in delxites and pitrticipü!ed in dccisions concerniny rnatters in issue in the
prcscnt proceedi~igs. Ami11 the staterntnts and resolutiiins irl question were
strongly condcmnatory of Sotith Afriw. on relevant niaitcrs and indeed asso-
ciated ihe Mexicrtn Delegatiun with the cause of rhc Applicant Sfates: in rhc
Sccond l'hase or i he Sozr~hIves! Africcl cüscs. ParticuIars are set out in Annexes
l3 and 13 t:, this Chapter.
OS specdal interest is the manner in which Judge Padilla Nei'vo exprcsscd
himsclf in a lerter tvririen to tlie Under-Stxrctüry for '1-rusteeship and Infor-
marion frclrn Kun-SclBCioverning Territories on Ih Juiy 1957. This letter was
reprodiiczd as Anne?;V to thc 1963 report of the Special Cornmittee for South
',
Wcst AFric:a and is attached to this Chaptcr as Annex E.
24. Ancther Judgc wwho was, in a likc manner, invoIved in ihc poIitimI cam-
paiçn agai 7st South Africa is Judge Morri7ov. As a reprcsentativeof the USSR
ai rhc United N a tioiis as late as 1967. hc condcmned the South ACrican adminis-
tratioii of Suuth West Africa in the stroiigest imayinablc tcrrns. He stated,
iji~rrnfirr. t hü t - --
". . . ihe South African raçists have exiended ICI South West Africa the
régime of repression and terrar against the indigenous population that
prevaib in Pretoria. ? hz Sou!h Wcst African patriols who stand up for the
Iiberniion of their fatherland are subjecr 10 savagc pcrsccurion, arrest and
torture ?.''
1-Ie also stiited tliar the acis of "Soutli Afriçan racists" \irerea threat not only to
the people of South West Afriça but nlso to othcr African peoples. In this
regard he referred tu incasant mjlitary wnstruction gojng on at trie air base
bituatcd in the Caprivi Sti-ip, and ru "the Zumed [sic] Rocket Base in South
West Africa". Thcw statenienrs were indeed surprising in view of 1 he fact t ha1
the only thrce judges (two of whom forrned part o f the rniiioiity) who iri 1966
exxprcsred an opinion on the Applicants' subniission that South Africa had
niilitarized thc Territory, found that this subrnission had been disgroved 3.
Specilic and unmni riidictcd evidence of a foreign mi11tary expert had bccn
given that i.he installations at T s u m ~ bhad no rnilitary character but were indecd
csrablished For ihc scientific reerirch of the ionosphcrc 4 .
Furrher detüils of the staicnients nude by Judge Morozov appear fronl Anwx
F tu t his Chapter. The gcneral tont uf thc staternent niay k garhered from the
fact that, ;iItlio~rphthis Annex consists of IGSS Ihan scvcn pages, the words
LI
racist". "racists" atid "racisrn" appear no Iess than 22 timw therein with
referencc t o ihe Soiith African Governnicnt and its ~)olicies.
25. III the Aiigio-lraninn Oit Corngony case Sir knegal R a u was cxcludcd
frtlrn par1icipation on the ground rhat he had "represented India on the Security
CounçiI, when it dealt with the United Kingdom's cornplaini against Iran for
' CA, OR.Scvei~teenthScss., Sup. No. 12 IAp2 12), pp. 18-19.

U N do<. A!PY. 1627 ( 12 Dcc. 1967). p. 63.
Jiidges Jessup, Taliaka and van Wyk. Soiltk Wesr Africa. Second Phosp. Judg-
~ i i ~ nI.C.J.
r, R?ports iQ66, pp. 330, 320-322, 205-21 3.
' Ivesr Afiica, Vol. XI. p. 585andChap. XI, para. 25,
Virk'I.C,J. Pjeading~~,Suutl~
inf~il.
WKllTIN S-1A'I'EMENT OF: SOIJTII AFHlCA 439
, f a i l ~ i r cto cori~plywith the interim rneasures indicated by the Court" '.Tt does
not appeiir whethcr thc Prcsirlcnl uf ihe Court or ihis Judge hiinseIr tnok the
initiative wliicli resutted in iiis recuation. The relevant Yeclrbook of thc Court
inereIy siüred that Sir Rttnegiil Rau had, in agrccrneni wit h the Court, considered
it his duty n a t to sit in thc iasc.
Wiih rdtrence to this der:ision J. D.Morley lias written:
"This, however, socrris not to have k n follorved when, after an applica-
tion by Svuih Africa, the Court refiised to disallow the participation of
Judge Padilla Nervo irt the South-Wesr Africn cuse, althougli that judge
bad been the Mexican Repccscntative oii the Tri~tceshipCouncil frorn
1947-49, having held ihe position of Vice-President of that Council in
1449, and had k e n Iiead of his country's dclegiaiion to the General
Assenibly from 1917 to 1963. and I'resident of the Assembly in 1451.
It is diffic~1I1tu rnnkr: a subsrantial differentiation hetween the two
situatioiis. Both playcd a major role in UN organs in niatlers iiitimately
connected wi th the Iegal dispute considered by the Court. The fact, possibly
athcrwix impurtani, lhat Judge PadiIla Kervo heId oRcial positions in
U K argans is of little significance, in that, as thc Mexicari Representative
on the Trusteeship Council and thc Genenl Asseiiibly, he spokc and voted
on sirnilar rnattcrs reparding tlie statiis of Soiilh-Wet Africa as wcrc
considered during his periods in office2."
Mortey proceeded to refei- to "the indistinguishübte chüracter uf ihe relevant
activities of Judgc Sir Bcncgal Rau and Judse Padilla Nervo"' and i t iscon-
sequently cleai. that he was of the opininn that the latter Judgc should noi have
parlicipared in ttie second phase or the Soufh Wrsf Africu cases.
25. A s wilI bc shown, a nurnber of factual and legal quesrions which wcre
before the Court in the soi if.!^ West Africu cases, are again in issue iti tlie present
procredin~s.Tt follows that an application of the decision relaring 10 Sir
Bcncgül Rau would, i i is sulxnitted, inevirably lead to ibe rececusation of Judges
Zafrulla Khan, I'adilla Nervo and Mornzov. However, iis kas been deinon-
straied, ihe Court itseIT h s becorne so involved in the political disputes which
havc [cd to thc prcscnt prutwtungs t hat it is the South AKrican Govcrnmcnt's
submission that, in view of the lcgal principls set out below, the Court as such
shoiild in effect "rectise" itsrlf by refusing to give the requestcd opinion.
'
77, Mcntion hüs alrcady Iieen made of rhc existence in the IegaI systerns of
al1 civilized countries of legal principles ivhich reqüirc that justice must be
seen 10 be done and lhat tiiere should bc no reasonable cause tu doubt the
irnpartiality of the Court or of a particular judge. In an Engfish case. Eckcrsley
arid Clihrrs v. The Mwsey , 3 o c b n r d Ifurhtir &rd, 1894 2 Q . R . at p. 671,
Lord Esher stated:
". . . the doctrine ivhich is applied to jiidges not mcrcly oC,tbe Superior
Courts, but to alt judges-[ha[. not only must lhey be not biassed, but
Yearbook of the Inr~rnarh?naiCouut uf Jusiicr,, 195/-IY5?, p. 89.

MorIcy, 1. U.. "Kclntive Inçumputibility of Functions in rhc internaticinal
Court", The Irrte~~ariatial
an.f Coi,~purasiv~Law Qrrrrrieriy, Vol. 19, Part 2 (Apr.
19701, pp. 321-322.
~ h i dp,. 322.
Vidr para. 3. Aupro.
30. lt has bcen dcmonstiated above to what cxtent the Court's 1956 Judg-
mcni was madc the suhjecht of vituperative attacks by rcpresentatives of a
n u n ~ b e rof States merely k+:ausc thc Judgmcnl was not unfavourablc to Soiith
Africa and did no1 sarisfy the poliiicril aiins of such States. ft has also k e n
shown how political pressuit: was applied to tIie Cour! and tu what exient the
'.
election of five new judges in 1965 was poïitical1y mutiirated It has furrherrnore
been shown thai a number cf judges, thiough their participation in rhe politicai
organs OC iht: Uniied Nations, have becorne identified with their cwnlries'
p l it icaI cainpaign against South Africa cnncerning its ad~ninistrationof South
Wesr Africa.
It is not difiiilr tu imagine what rhc poIiticril reaction will bc shvuld ihe
Court decide to give the rtquested opinion and should its decision again in
any way be favouiahle to Stii~thAfrica. If possjbje. it will be even more vinlent
khan in 1966. Moreouer, any süch opinion would certaînly not be amepted by
niajnrities in the United N~rions. 'This much \vas madc clear by Mr. Terencc
of Burundi. Prior tri thc adoption of resolution 284 (1970) emhodying the
prcscnt reqi~cst,he stated ir, the Sccurity Counçil that there %as- -
". . . the
hope that an impiiriinl judgrnent, which would be in conformity
rvith thc jnteresis of the Namibian peopIe, would x r v t : the Iwo-fold
pürpose of rehabilitaiirig the prestige of the Intcrnirtional Court and also
harmonising the position of the Court with the position taken hy the
Gcncral Assernbly in putting an end to South Africa's Mandate over
Namihia".
He then added:
"At any rate. whutci~crthe TESI&, my detegation believes that the polit ical
decision or the General AsscmbIy with-regard to the statüs of Namibia
is ÏrrcvombIc, because the polit icaI nature OC the !\'miibian probleni is such
thal ir is definirel-v-ivirh,:n rhe sph~reof p~iiiicaf solutioa~to be im poxd by
the Seçiirity Council ;ind the Gcntral Asseinbly, the most competent
organs *.'? (Ltalics adde-j.)
Furihermore. iit the dehites preceding ihe adoption of General tissernbly
resoIution 2 145 (XXI) a niimbcr of rcprcscntatives made il abirndantly clear
that thcy considcrcd thc probtein of South West Africa to i x ü puliliwI and
~ i o ta iegal one. Thus. Mr. Pirzada of Pakislan stated t hat "the failure of the
Court to pronouncc on nrhe rnerits of a casc [ \ v a ] no1 an end of this [natter",
and that "it only gave pro#'. . . ofthe futili ty of the jiidicial proccss for a just
settlemeiit of the issue of thr future starus of South West ~ff'ica 3"; Mr. El Bouri
of Libya said lhat "the prc7blern iwas] a politicaI one; the IegaI aspect could
not be decisivc 4"; hfr. Tarabanov of Hulgaiia expmsed the vicw thal "it is
onty too obvious ttiat the rrcrY essence of the question of South West Africa
'";
is political; [hrrefore i l can lie sertled only by political ineans and Mr.Sharif
of Indonesia statcd that "l-rir this political prohlern we cannot scck recourse
'I'here is no reason t o sulipose thar thjs motivation wuuld noi. and did not, at
kast attempi ln influence the election at'new judgcs in hier years.
U N dot. S/PV. 1550 (29 JuIy 1Y7U), pp. 71. 72-75.
GA, O R , T~enty-îirstSC:~S., 14 14th Plenary Meeting. 23 Sep. 1970, p. IO.
Ibid., 1425th PIenary Merting, 30 Sep. 1966, p. 7.
'
+
Ibid., 1449th Plcnary Meztitig, 19 Oct. 1966, p. 4.

to a juridiwl body likr: thc Intcrnational Court of Justice . . . '".
Thc rcpresen-
tarives concerncd made it abundanily clcür rhat in ihcir opii~ion[lie problrm
of South IVmt Africa was a politica1 one to be solvcd by political mcans, aiid
that any judicial dccision in conRict wirh what thcy rcgard as the proper
poIitiçal solution would be unacc-ptable to them.
On the other hand, should any opinion which the Court rnight dccide to
give be u~ifarourablcto South Africa, it is inevitahle that thtre wilI exisr in the
minas of rcasonahle iiien doubi as to rvhether the Court did not bow tci politicaI
pressure and as io whether justice was in fact done.
C. 'ïhc Dispute 3etween South Afrim and Other Statcs
31. The leading case concerning the question whcther an international court
inay or shouId accede to a request for an advisory opinion ielating 10 an
existing dispute ktween Siatcs, is the Easiern C(~re!ia case =.
Ln 1923 the Coumil of the Leaguc of Nations requesred the Permanent
Court of Intcrnational Justice ro givc an advisory opinion on the qiiestion
whethcr the 'l'reaty of Peaw bctwoen finland and Russia signed ai Dorpat on
14 Octobsr 1920, and the DecIaration of ihc Russian Delegation regarding the
autonomy of Eastern Careiia, cnnstitutcd international engagements whicli
placeci Riissia under an obligation to Finland as IO tlie carrying out uf the
provision< thereof. In a telegram dispaichcd to thc Lotirt, Russia repudiated
the jurisdiction of the League of Nations and the Court, and declared diat it
was impossible for the Russian Government ro takt part in the discussions of
ihc quation befnre the Court. IIaving h a r d thc representativc of the Finnish
Govertmieni in Junc 1923 the Court ùelivcred an Opinion on 23 July 1973.
Dy a majority of 7 t o 4 the Court decIined to riiIe upon the question rcfcrrcd
to it. The Court slaleù:
". . . the opinivn which the Coiirt had &en rcquestcd to givc bcars on an
actu;il dispute between Finland and Russia . . . It is wcll estahIislied in
internatiunlil law rhat no State can, withorit its conwnr, be cornpelled to
~ubrfiitits disputes with ofher States eil11er to mediation or to arbitraiion.
or to any other kind of pacific settIcrnent 3."
32. It is not cIear whether the Permanent Corrrl, k a u s e o f the exislence
of a dispute, decided t hat it was nnt competcnt io give an opinion, or whethcr,
in the exr:rcise of its discrerion, it dwIincd to do so.
In thel'eoc~Treari~.rcasethis Court expressecl the view thai "na State . . .
prevmt rtie givinç of an Advi.m~*Opinion which thc United Nations çonsidcrs
to be desirable in order to obtain enIightenrnent as to the course of action it
should takc 4 " , 'I'he CYoirri did not express disagreeinent with the decision in
the Easrer~if i r e l i a çax, but said diai "the circumstances of Ihc prcscnt casc
arc profoundly diremnt frotn thuse which [cxisted in the former case wheii the
Permaneri~Court] decIincd ro givc an opinion k a u s e it found rhat the question
--
G A , O R , Twenty-first Sas.. 1449th PIenary hleeiing, 19 O C ~1966, . p. 14.
Srarii:: of Eff.'n.rtcrnCorutiu, Ad>,isorj Upiniotr, 1923: P.C.I.J.. Seriex B, fi.5 .
Ibid.. p. 27.
Inirvprernrion of Pence Tr~uiieswit h Hulg~rin,Hiingur.~~ r ~ t rRomariia,
f fiïrst
Pl~use,Adrisory Opinioti, I.C.J. Rc,ywr!s 1950, p. 71.
444 NhMIRlA {SOL~TH WEST APKICA)
ers cver thc Union as niandatory; the Union has repeatedly rejected its
contention '."
36. In its Preliminary Objections South Africa did not deny Ihat thcre was
disagrecnient betwen itself and the AppIicants concerning a nurnher of points
of law, biit contended that there did not exisi a disputc wit hin the meaning of
Article 7 of thc Mandate '.
In rheir Observations on the Prclirninary Objections the Applicanrs, in
further argunient addresseci to the question whethcr a dispute existed, stated
that they had in fact. prinr tn rhe filing of thcir Applications and Memorials,
announccd theeir position on al[ points mmprising lbeir side of the dispute,
and contjnued:
"They [Le., the Appficants] havc consistently voltd ro approve and
adopt the Annual Reports of the C:ornmittee on South West Africa w k h ,
since 1954, have set forth detailed criticisrns of Respondent's exercisc of
the ifandate. Indeed, one Applicant, Eihiopia, kas becn a nieinbrr of
that Comniirtee. If during alI the titne sincc 1954 Respondeni has noi
seeri fit io rcspond to these contentions, but has coritinued to exerciw the
Naniate without regard to the criticisms supportcd and adnpted by the
nverwhelming nurnber of ihe members of thc internationaf ccrmnrunity,
il would appear rhat Respondent disagrees with the criticisnis 3."
37. Tn its 1462 Judgnient ihis Court round i h t a dispute existed, and that
it was a dispule wilhin the rneaning of ArticIc 7 of the Matidate for S o u ~ h
West Africa which could not be seltled by ncgotiation. In the course of the
reasoning Icading u ~toi this CrnJing thé Court stated:
". . . i i
should be poinled out t i u t beliind the presenl dispute there is
another and similar disagreement an poinfs O € law and fact-a sirnilar
conRict of [egd vicws and ititerests-bctwecn the Kespondent on the
one band, and rhe other Mernbers of the United Nations, holding iden ticül
viewç with the Apptiants, on the other hand. But though the dispute in
the United Narions and the onc now befnre the Court may bc regardcd
as t ~ - Odiffereni disputes, the questions at issue are idcntical j."
Regarding the' question whcther there had b e n ncgotiat ions in order to
solve the disputc, the Court said:
"?'he nuniber of parties to one side or the other of a dispute i ç of no
iniportance; it d e p n d s upon the nature of the question a( issue. If il is
one of mutual interesl to nlany States, whether in sm organized b d y or
no!, i.hert:is no rcason why each or them should go tlirough the furrnality
and prerence of direct negotiation with the cornmon adversary Stare aRer
thcy have already fully participated in tlie collcct ive ncgotiations with the
saine Stnk in opposition '."
I i seerns clear, therefore, that thc Court wax, of the opinion ihat a dispute
could bc jgcncrated, and negotiations to sett le it, conducted, within the framc-
, .
-.
' I.L.1. Pleading..r, South Wesr Africa, VriI. 1. p. 89.
Ibid..pp. 376 r f seq.
Ibirf.. pp. 452-453.
* Sorr fh Wesr Afrira, Prr/iminarj Objecriom, Juàgrnenf, I.C.J. Reports 1962.
pp. 3444-345.
Ibid., p. 345.
445 NAM1 ElA ( ~ 0 ~ 3 . 1 WFST
1 AFRLCA)
"Following the adjudication tl~atSouth Wcst Africa is a n inrernational

Territory ovcr which the United Nations has jurisdiction, ihcn the power
to terininate the Mandatc thcreof --once itte Mandatory Power has failed
to riieet the srandard of tlie Uaiidate arid the Unitcd Karions Charter-
is u~qucstionablywithin the çcrrnpctcnm of the United Nations '.'-
At a lüter stage the South Afriwn repraqentative, having anaIysed the super-
visory pcnivers uf the Lcügue of Nations, and rclying on this Coiirt's 1966
Judgnicnt, stated that ai k s i the Lnitcd Nations could huvc no greater powers
than tliosz which t l Ltaguc ~ of Nations had enjoyed, and that tlie Lxaguc itself
was ~ i u rrrrpowcred
t to revoke a Matidaie ?. Huwcver, representatives of oihcr
Statcs s t i l I maintained that the General AssembIy did iri raçt cnjoy the power
to revoke the ~Mundatcfor South West Africa. Thus h1r. Kironde of Uganda
expresscd the opinion that in view of thc fact that the Unileù Nations had
"inherited the assets and liabilities of the League of Nations, including the
Territoi): or South Wcst Africa", it was its dury to transfei-the Mandate fronl
'.
South Afi-ica to 0 t h 1bwei.s of ils own choosing Exampleç of furtlier similar
expression of opinion are to be found in the sturemcnts made hy kir. Swardn
Siriph ofInJiu ; Mr. FucnteaIha of Chile5, and Mr. Martiii of Canada 6 .
41. In ihe mms debates a nurnbcr of rcpresenratives txprcsxd the view that
South Africa, by the iriiplemeniatioii of ils pvticies in South West Africa, had
acted in conflict with its ~hligarionsiri terms of the Mandate, whilst the Soiith
African rcprcseiitative iiiaintained that his Ciovernmeni had in fact proii~oied
to the uiniost ihe material and moral well-king and prrigress of the population
'.
of thc Tcrnlory 1t is thus abundantly clear that there arose during the course
of the sairi debates a dispute os lo thc (itll~ged)pawer of the Gcneral Assembly
to revake the Mandare, and that tliere continued to i x a dispute as IO whether
South Africa hüd acted in conAict with its obIiwtians under thc Mandarc,
if it wcre still i i i existence. Furthcr cvidence of rhe existence of thex disputes
is to be found in the adoption, agaiiist tlie opposition or. inrrr dia, South
Arrica, of rcsoIution 2145 (XX1) in which the CIenerrtl Asçcrnbly purportcd
to exercise a power to revokc thc Mandate hecairse of the aIIeged failures of
South Aft-Îca to îulfil its obIigations in ternis thercof8.
12. A furihcr dispute was generated by a lellcr to the PresiJeni of thc Sccurity
Council, dated 14 March 1969, in which the representatives of more than
40 States, niosrly Afro-Asian, stated that it was incurnbenr upon the Securiiy
Council to t ~ k crneasures and aciion to enable the people of South West
Africa "to exercise iheir right tu self-determination and independence" in
the lighr of the adoption of the aforesriid resulut~onof the GeneraI Assenibly
and SuutIi Africa's mnrinued presence in South #'est Africa 9. In response to,
i n t ~ ralitr, this [etter, the Sccurity CounciI adopted resoIiition 26-4 of 1969 in
which i r called upon rhe Government of South Africü to withdraw its adrninis-
G R , OR,Twenty-first Scss., 14 17Lh Plenery Mccting, 25 Sep. 1966, p. 19.

Ihid., 1431st Plenary Meeting, 5 Oct. 1966, p. 24.
' Ibid.. 1433rd Plenary Meeting, 7 Oct. 1965, p . 9.
Ibid. 1417th Plenary Meeting, 26 Sep. L966. p. 13.
lbid., 1427th Plenary Meeting, 3 Oct. IY6ti. p. 18.
Ibid., 1433rd Plenary Meeting. 7 Oct. 1966, p. 5.
Ibid.. 1414th and iollow inr. Plçnarv hfectinns.
~ . scction A,-injiu. -
~ i d e - ~ : h aXI,
Y UN duc. S!9090 (14 Mar. 1969) in SC. OH. Twcnt-fotirtii Y a r , Sup. for
January-M'arch 1969. pp, 126- 127.
[ration from South West ALrica I. The tezt of a f~rrtherresolution (269 {1969)),
rvhich was bajed upon this resolution, was transinitteù by the Sccretary-
tieneial of the Enirtd Nations to the Sciuth Africati Ministcr of Foreign
Affairs, who, in his reply, dated 26 Septe~nbcr1969, stated that the South
African Govcrnriient had no doübi t ha1 resolution 2 145 (XXI) of the tiengral
Assembly as invalid, and that since this rcsojution Comed the bbasis of
rcsolution 269 Il 969) of the Security Council, it was consequentIy also invalid =.
I le stated furthcr t hat the finding of this Coiirt in its 1966 Judgrnent indicated
plai~tlythat the League b d no pnwcr of unilaieral cancellation of a Mandate,
and that theGenecal AssemliIy, even assuniing tl~atit had succeeded ro the super-
visory porvers of thc Lcague, could not possibIy clairn greatcr righrs than ihe
Council of the League itsell' had enjoyed >.
Tt appears, iherefore, that thcr!: also exists a dispute between South Africa
and the afnresüid Statcs, which addressed the ltlter datcd 14 March 1969,
to thc Presideni of the Srcqrity Council, as regards thc question whethes the
Security Council tmuld vaI~dIytüke steps relative to the continued presence of
South Africa in South Wesi. Africa 4 .
43. It will therefore be s:m that the dispute (or disputes) between, on the
one hand, South Africa and, on thc othçr hand, certaiii M e m k r s of the IJnited
Nations, comprises a nuniher of important façiual and IcgsI issues. These
include the qiiestions wherlter the General Assenibly succeeded to the super-
visory powcrs of ~hr:Leagul: of Nations; whether tlie Leagile enjoyed a power
to revoke a Mandate; if so, whether such a power also vestcd in the General
Asxrnbly ; whelher South Africa in k t acted in confl~ctwith its obligations
under the Mandate, aauming thc samc to br still in existence or to have k e n
in existence when Gcncral .Issernh!y resolution 2145 (XXI) was adopted; and
whet her Security Couircil ihesoli~tion 2h4 (1969) and subseqiient rcsolutiuns,
inchding rcsoIution 275 (1970), wcrc validly adopted. These are the vcry
issties o n which the Court i s requested to pronoiinm in the present prtimedinpS.
44. As has been pointed oiit b, in the F ~ ~ c f eChueiiu

rn case the Permanent
Court declincd to givc an opinion bccausc of the existence of a dispute between
Finland and Russia. The Court \vent on to state tha t ihere ivcrc othcr cogent
rasons which rcndered it incxpcdicnt thai il should attenipt ta deal with the
question in issue. The queitinn whether Finlünd and Rtissia had contracted
on the ternis of the Ueclar;rtion as to the nature of the autonomy of Easlern
Csirclia n:as, according 10 tIic Courr, really one of fact, and to aiiswer ir would
have involveci the duty of ascertaining what cvidcnce rnigltt have throwri Iight
upon the contentions whicti had been put fciward on the subjcct by Firiland
Vide Chap, V, para, 9, itfru.

South Africa's Reply ici :he Secreiary-General of the Ilnitcd Naticins (Secui'ity
Council rcscilution 269 (L969))reprodiiccd in L'K doc. S:9463 (3 Oc!. 1966). Aniiex
A , p. 1 , and in Annex C to Clliap. XI hereof.
Ihiri., p. 42. The rciisrins for the views t i f the South Africsn Gavernment (vert
set ou1 at some length.
Vide atso Chap. I I I . footnt>tt i <in p. 418, sirpua.
* As to thc intcr-relationsiiip beiween Gencriil .4sscmhly resoluiirin 2145 (XXI)
and Security Council resolutions 264 (1961)); 269 ( 1 969) and 276 (1970). ride Citap.
V: paras. 6-15, iiifra.
fi Vide para. 3 l , stipra.
and Russia rcspcctively. '1-he Courr did not say that thcrc was an absolute rule
that the request for an advisory opinion rnight nat involve some enquiry as
tu façts, but stared rhat under ordinary circumstances i t wtt5 cerrainly expedient
that the fiicts iipon which the opinion of rhe Court was desircd shouId not be
in controi-ersy and ihai ii should not bc left to the Churt itsclf to ascertain such
Pdcts '.
45. As Roxnne points out. jt mus1 still be rcgardcd as rrnsettlcd whether,
in the exercise of iis advisory jurisdiction, the Court may ansiver a question
dircctcd exclusivcly to the establishment of racis. Roscnne also mentions that
hoth the Fermanent Court and the present Court have regularly made relatively
sitnple findings 01 friçi, cstablishcd on the basis oft he documentation subrnittcd
to the Co~.rt,bur stütes that these instances can hardly l x rcgrded as conclusive,
since the i'aiiri has never bwn f;iwd wirh the prablein of cstablishing tinder-
Iying unsb;i-ccd facts in thc course of rendering ;ui advisory opinion 2.
Tn rnunicipai law it is often necessary to distinguish brtween questions of
law and qiiestions of fact 3. A distinction is norniall y d r w n heiween prirnary
facts4and sluondary fücts, the latter being inkrenceç rrom primnry factu. There
appear to be difierences or opinion as to whcthcr decisions insolving inferences
from prinury facts may be viewcd as decisions on legal questions. Hoivever,
it u n clcarIy not be douhted that a finding relating to a primary fact is n pure
factual finding. Since the Couri may only give an advisary opinion on a iegul
quesrion, it may consequcnrly bc doübted ivhether il is entirted to fumish an
opinion if, in order to do so, it also lias to make findings as to primary facts.
On the-assumption, ho\vever. thal the Court is indeed entitled ro do so, it is
suhmitted ttial the Court, in the exercise of its discretion, should refiise ta givc
an advisor- opinion if ir has to establish controverted prirnary facts whjch do
not faIl wiihin a limiied ccirnpass iidmitting of easy and speedy ascertainmeni.
46. Tn ;iddition lu the theorcticaI objections, based upon the wording of
the Statutc, to thc making of factual findings by Ihc Court in advisory prococd-
ings, thcrc are obvious praclical dificultics in this regard. These diffrcutties
da nor obrajn, or nol to the same extcnt, in contentious proceedings, wherk
thert: arc parties tri the Iiiigatiot~who would normaIIy adduce such cvjdcnce
as they consider necessary to estsblish thcir contentions. In any evcnt, the
Couri may itsell in strch proceedings requst the calliiig of witnesses o r experts,
or the pn~ductionof evidence, dociiments or explanations Moreover, thc
Court is eiititled to entrust any individual, body, bureau, Conlrnjssion or other
organizalion with the iask of nrrying out an enquiry or giving an expert
opinion6. Thc effectiveexercise or these powcrs would normally requirc thc
assistance aiid CO-opera[ ion of thc parties, rvhich, in contcntious proceedings,
can reasoriabIy be cxpccted to be forthwming. Because ihc parties PX hyporhsi
consentcd. in one form or another, 10 the jtirisdiction of the Court thcy can bc
presurned to desire an authoritative pronouncement by the Courr. But in any
, - " - - .
S;«tiis ojfksrern Carelia, Advisor); Opinion, 1923, P.C.I.J.. Series 3, No. 5, p. 28.
Rosenne. op. cir., pp. 700-701.
The probIern riften ariscs whcn provision i s made for an appeat to ri higher
tribunal on a qriesiinn of law only.
' These arc also referred t<i irs "hasic facts". YfdcPlunkctt E. A. (JI.), "UN Fact-
Finding as a Means of Settri ng Disputes"-, Vir.qNiio Journal uJ Inturnritinnul Luw,
Vol. 9, Nn. 1 (1 969). p. 1 56.
) ArlicIe 54 <if the Kules of Court and Article 49 nT ihr Siatute.
Vi'dt A.rticle 50 of the Statute of the Court.
W R I ï T E h S I - A l t M t N T OF SOUTH AFKICA , 449
event, if they Fait io w-oprrlte, they da so a l iheir prit. A faiiure to addu=
evidence o r provide information mi&, in appropriate çirciimstance~,lead to
an advcrse inferen=, or it inight result in insufficient evidence heing pIawd
M o r e the Couri to dischar# the oiiits nf proof resting oii a pariy. Iri lhese
circumstances. a failure io crr-opcratc with the Court in an investigation of the
facts might havc ii significant effect on the outcorne of contentinus prrimdings,
and wouid in any went not r~mrlerit impossiMe for tht: Cour\ to make any
y thc dcterinihation of the case.
finding of fact which j s n e ~ ~ s a rfor
47. 'I'he position is proforindly different in advisory proceedjngs. There are
no parties to such promediris who niight rcawnably be expccted io adducc
the rteccssary ~vidence-indeed, the Statcs in possession of the required infor-
mation rnight wcll disirgrce wiih the decision to request an opinion or take no
part in the proceedings. Altliough the Court would wnmivably bc cntitlcd to
conduct an enquis. incm inplu by exercising the poR7ers mentioned above ',
there would not be the samc incentive fur States ro co-operaie and a failure 1 0
do so would seldoiii, if ever, justif}, any inference which might bc of assistance
in detemining disputed Fac tua1 issues-t he only legit imate inference u70uld
nornially be that the Stare dccs not wish to be invofvcd (or Lu be invoIved more
dccply) in the proceedings. hnd in advisory prmeedings the Court lacks thc
final mcans of cutling the Gordian knot - there is no utrus of proof which, in
the absence of suficient cvidcncc, wouId lead fo the rc;oIiilion of factual
disputes.
48. Tt has already k e n nientioned2 that the Court. if i t considers that a
valid request for an a d v i s o ~opinion has k e n made by the Security Courtcil,
would have ta decide whethrr resolution 2145 (XXr) of thc Gcncra] Aswrnbly
was wlidly aàoptcd. ShoiiIC the Court find Ihat the General Assembly was
legally empowered to revokc thc Mandate, it will also have io decide whether
~ h Î sorFan in cusu had valid grounds for doing so. A s will bc dcrnonstratcd,
the said resolution was basec. on an alleged failure of k u t h Africa to prornote
"
the moral and materia1 well-+kingand sccurity of the indigcnous inhabitants
of South Wcst Africa In th: Sgcond Phase of the Snrrih Wesr AJrica cases one
of the most controvcrsial and conte$ted issucs was whether South Africa had
in fact failed to prornote the moral and materia1 wcI1-bcing and çecurity of the
inhabitants or the Territor>-.This was essentially a factual issuc, and still
remains so. The Governmefii of South Africa hüs aIways n~aintainedthat it
has in fact pronioted the said well-king and security, and in resoitilion 7 145
(XXI) is includcd a purpurted firiding of the General Assemhly to the contrary.
In a Iater chapter refcrence wiIl be made ro facts and circuriistances relating
to the Territory segarding which therc has k e n a fiictual dispiite between Soulh
Africa and ceriain otlier Menibers of the United Narions over a period of many
pars. It wilt be shown tu what extent tkcts were and are in issue and it will bc
made clear that the factuaI is::ucpwhich the Court may be mlled upon to decide
çertainIy do not FaIl wjtliin a sinaIl or confined ambit. it foIiows that ihc Court
wiIl not bc in a position tu $;ive the cequesicd advisory opinion unless it aIso
rnakes findings on controvcrtcd and conlroversiül factual issiies of such pro-
portions that the present question, in ultimate analysis, cannot bc reyarded as
I The abovc-mcntioncd pro.:isions çould ptissil-ily be invoked in lerrnj of Article

18 of thc Court's Statute and Ariicle 82 or the Rules.
Vide p a r i . 43, supru.
Vide Chap. XI,section A, infiu. .
Vide Chap. XI, i n f i .
a pureIy !egtiI onc, and thar i t would in any evcnt at least be "iiiexpcdicnt " '
fur it IO give the requested opinion.
49. Fo:. the reasons statcd above, viz., the political backgrotind of the
question rcfcrrcd to the Court, and the manner in which the Court and indi-
vidiiaI Mr:rnkrs rhereof havc bccome invnlved in tlie poli tical struggle concem-
ing South AMça's administration of South Wcst Africa; and the existence of a
dispute aiid of mntroverted Sactuaf issues, it is submitted that the Court, i n
the cxercise of iis discrelion, should decline to accedc to the Security CounciI's
reque5t to give an advisory opinion.
itfr. Nsarize: "The r o u i 1 a t The Hague delivered a deplorable verdicl on
the legal aspecrs of the question of South $ V a t Africa."
(GA, OH,'Twenty-first Sess., 1454th Plenary Meeting, 27Oci. 1966, p. 16.)
Byelorus&in Soviet Saciaiist Itepublic

PLENARY
Mr. Tchernorrchrchenko: "h?any ~emarkshave alrrady b a n nisde h m -
and justiy so - a h u t tht: Internutional Court and aliout those judges w h o
did everytliing in their powcr to reject t h legitimate cornplaint lodgcd bu
Ethiopia and Liberia. Bur we canno? nvedook the fact thak even among
!hase representatives who havc spoken here, there are still advocales ,md
defetiders ol' ihose judgss. We even iiiitnessed this ai our meeting this
rnoming. Those jüdges, as welI as their advocatcs, prcfcr to dose their
cyes ta thc ppolicy of the Guirerninent of Soutli Africa vis-à-vis South
West Africa and t u the violation of inremaliona1 undertakings and de-
cisions of [ he United Na rions General Assembly. Onc cannot heip noticing
ihat the prcsent activitits of this internarional h d y do nor comply with
tlie requireinents and rak ddelcgated 10 ic by the United Katiuns Charter.
The memkrship of the Court mus! bc changcd and it shouId have, as
.
statcd in Articic 9 of th: Court's Statute., eauitable re~resentarion'of the
iriaiil furli3s oîcivilization and of the principal legal systems uf the world'."
(GA, OR, Twenty-fir:;t Ses.. 1449th IJlenary Meeting, 19 Oct. 1966,
,\gr. Bittifzi: "Even iiiterrationa1 organs have joined in this battle against
Afrim. On 18 Jtily iY&i the International Court of Justice delivered its
ucrdict on Suuth Wcst iifrica. The unanimous msiire which this ci-oked
throughout the m~orldarid [tir: rejoicing [ha[ followed in South Africa are
eloqtienl testimony and iieed noconinient. Soundiustice does not consist in
thc casuistic dccIarnatin11of legat mysteries. It lies, rather. in pripular acccp-
tance and in the knnwletlge thal rhe jiist cause and the good Iaw have beeil
defended. In the circum:;tanccs, thc vcrdict may be interprered as follows:
'Ethiopia and Libcria sbnuId mind their own business! South Africa is
right in annexing South West Africa! The mode of administration is in
conformity with the Charter aiid its objcctivcs.' Over-simplification, the
jurists will say! 1 retort: a translation of scientific subtIeties into practiçal
and concrete realities. Besidcs, ir is easy to discuss the legal basis of rhe
dccision wirhout being a jurist, for what is at issue is the ven; ftiture of t his
'I'erritov, which is iindcr an international mandate and which has never
forrned an intcgral part of South Africa. The Charrcr and the historical
Dcclaration appwring iii GcncraI AsscmbIy tesolution 1514 {XV) cal1 for
the graniiny of indcpcndence to al1 countries and terri tories which are still
dependcnt. How caii tliis fulurc be giraranteed by thc verdict of The
Hague?
This Sudgrnent hau drmonskrated once and for all, and in the cltarat
possible füshion, the crisis faciny m'rtain organs of the Uriited Nations.
454 S A M I R t h [SOLTH WEST AFRICA)
Here you have an organ based on the Charler, and ihis organ hands down a
verdicl cuniran tu the Charter! It is quite simple: the larv itseIf is viiia ted,
and the inacfiineiy established expounds the 'law' for which it was created.
The privilege of the vcto enjoyed by somc nicnihrs of the Security Council
is a rcsult of this same concept. Why, then, shoiitd we be surpriscd rhat
iitteriiatioi~alprobtems rcrnain unrcsolved? Their solution is not considered
just unless thc grcüt 'Powers alone arc satisfted ivith i t ; ioo bad V it is
injuiious to the peoples directIy inuolved. This curious subjcctivc niorality
niiglil bc surnmod up in a single sentence: 'Everything is weIl whick is
acccptcd by tlie great Powers' ...ihe RepubIic of Sourh Afrim seizes
Sour.hWest AFrica by force with the blessing-which n o one can understand
-of the IntcrnationsI Court of Justice. , ."
(€:A, OR,'Twenty-first Sçss., I412tli Plenary Meeting, 22 Sep. 1966,
p p IO, 15.)
Mr. &knro: ". . . his couniry hrtd originiilly had ü greüt respect for the
1nte:naiional Court of Justice. tt had brought n case before ihe Couri on a
rnattcr of great iniporlance Io it, but because of the manmuvres of a
certain colonial Power rhe outcorne had not btzn satisfactory. 'I.hat same
Power had k c n bchind the recent decision in the South West Africa case.
a decision which was contrary iii law and justjce. The African cotintrics
wert therefore bound ro ask thcmselves what thcy stood to gain from
part icipating in the proceedings of a body which wns iniinical to iheir
iriteresrs. His couiitry nould have votai against the approprialion under
scction 19 if that suni had becn intended to financc futurc activities.
Sin,: the money had alrcady been spmt, huwci~cr,it ivould ahsrain iii the
voie on the section as a whole, tl:hilc apprising the increast.."
( ( ; A , O R , Twcmty-first Ses., Fifth Comm., 1124th Meeting, 10 Oct.
l966,p. 24.)
Central Afrlcan Rcipublic
(i) M u . Goiiirz-Doimthe: "The Court. in handing dtiwn a Judgenient which

1 ain sorry to have to describe as totally unsourid rrorn bot11thc legal and
moral standpuinis, has just bccn guiliy of the most shattcring dcniriI of
jusiice in its history by refusing to enprcss an opinion on the substance
of the issuc. That is why nniy Guvernrnent was one of the first to proçlaim
its disappoiiiimeni and indignation at the Juàgcmcnr, which, as many
delegalions have alrcady said. has arouscd great cnncern in countries
such as mine, rvhich believe in ille rule of Iaw.
The Court 11x3îuIly jus1 ifjcd aur previous exprewed reservalions con-
ceriling its mernkrship, which fails io rcffcct thc currcnt range of Iegal
arid potitical trends in ihe United Nations."
(GA, OR, Twet~ly-firslScss., 1427th PIenary Meetii~g, 3 Oci. 1965.
:'.)
(ii) :W. Guintnli: "By a Jüdgerneni unforrunately devoid of any fciundation,
tiflier juridical or mors[, the Inicrnational Court of Justice, as we have
had occasion to staie. Iias jusr cornmittecl one of the niosi flagrant dcnials
of justice in ils history by refusing to hand down a judgcment on tlie
subsrancc of the case. T'ha1 is why m y Government usasamong fhe first
tr, prcxlaim i t s disappointment and indignation in thc fiicc uf such a
W W n E N STATEMEKT OF SOUTH AFKICA 455
judgcmcnt, which, as iiinny delegations have srressed, ha%cIisttirtKd coun-
tries whicli, like inine. or course, believe in thc rulc of Iaw . . .
I shoiiId not like ta Icavc this rostrurn withoiit saq'ing a fem words on
the conditions of work and. in particular, thc prcxnt struçturc of the
United Nat ions. To our great satisfaction we have a l r ~ x l yachieved t h
eirlargcmcnr of the Sezurity Council and the Econotnic rrrid Social Corin-
cil. Fnr this rcason, i r t view of the flagrant denia[ of j u s i i t ~of which the
Interrialional Court O € Justice was puilry Iast JuIy, rny Ciovernment mn-
siders thar the cuntpo!:itionof that important body ~ n u s l tx enlarged. and
without delay."
(GA, OR, T~vcnty-rirsrSess., 1441~1Plenary Meering, 13 Oct. 1966,
pp. 17-18, 19.)
:W. Puittturnholuni: "Thc püticna uf rhc intentatioiial corninunity h s

bccn straincd and taxed by the trinsparent subtlcties and nuances of the
Court which. by lhe ai-cident or certain rortiiitoits circurnstanccs, bwarne
different in coniposition. Onc would have thought that a judicial tribunal
of such standing ivouIi1 avoid procedures of siiçh iitter C~rtilityand place
a Iiigh premiuni upon predictability, imread of whIch wc scc thc pürii-
doxicai spectacle of tenacious consistency on the part of individual Judges
and damaging inwnsirtency on the part of the Court. One bemoani the
fact t hat the Court in 1 966 appears ro have abdicated ihe rolc assignçd to
i t to serve as a fina[ bill wark of protecrion against possible abuse or breach
OF the Mandate."
(GA. O R , Twenty-first Sess., 1419th Plenary Meeting, 27 Scp. 1966,
P. 6)-
?W. &ror,,i~: "l1orfuy;t1 and ils ally, South Africa-&th supported by

sorne yrcat Powers -aiiitinue to make a inockery of world opinion, and
hai~eeven botdly sel iEiemselves up as the charnp~onsuf rccolonizat ion.
South Africa. wirh its palicics of apartheid, is the syinbol of a rerurn of
Irian. wit h a11 bis ünim;il instincts reawakened, to the dark ages of history.
It is a greiit challenge i o tiiankind as it is ioda).. and a constant challenge
to alf Africa. Yarrowly ~cIfishintcrcsts havc always cngendered sitch situa-
tions. but very oftcn th:y are but a Iast ref~ige.and these in terests arc there-
fore mistakcn interesis.
I t was this feeling wf:ich Icd thc Intcrnatiunal Court of Justice 30 render
a disgraceîul Judgnren! on the South West c2frican situa1 ion."
(GA, OR. Twenty-firb;t Sess., 1428rh Plenary Mcctiny, 4 Oct. 1966. p. 8.1
Mr. &~C;rrki: ". .

. I niust mention the question of South West Africa,
rvhich has becornc exircmely iirgcnt bccauw of the scandalous Jirdgement
handed dnwn by the International Court of Justice on rhc cornplaint
a~dinstSouth Africa submitted joint1y by Liberia and Ethiopia on behalf
of al1 Africa.
I ciinnot fait to n~enfionrny country's indignation whcn we learned of
this irifamy. . . .
Th: situation in South-West Africa ha5 reached a dangeraus phase. Tt has
wrioirsly dereriorated since the Judgerncnt of the TnternationaI Coiirl of
Susticc of 18 Jul y 1966. South Africri's annexationist designs arc now more
transliaient ttian ever. The very evening thal he Iearncd of the Judgernent,
Mr. Ibrwoerd, the tchen Prirnc Ministcr of the LiepuhItc o f Solith Africa,
declai-cd: 'The Judgernent delivered this afteriioon by the Intcrnationai
Courj of Justice ar Thc Hague i s a great victon, for South Africa.'
W k r e dms this victory Iic. if not in the fact chat the Court, with a few
corri13t judges, ha$ tipheld South Africa in i l s cibstinatc rcfusül to hced
the General Assernbly?"
(GA, OR, Twcnty-first Sess.. 143 1st Plcnaty Meeting, pp. 1, 2.)
Congo (Kinshasa)
Mr. fiourboko: "ln regard to South West Africa the scanda! is even worse.
A sat:red Mandate entrustcd to Soiith Arrica kas been travesticd and
beirayed in rhe m a t abominable fashion and turned into a colonialist
instrüment for the vilest and most contenrptible servitude, the most sharnc-
ful bondas that tlie world has ever known. I regret tu have IOnote that
the Iritematjc~naICourt of Jus~icc,thc smcfuary of infernafjonal law, has
mudc itscIf accornpIice in this unpreœdented scandal, so i h a ~W C can say
of it, as Racine did of k r u :
Among men as yet unborn thy namc \vil[ he FnuI insult to the foilleft
tyranily."
(GA, OR, Tivcnty-first Sess.. 1445th Plcnary Meeting, 17 Oct. 1966,
pp. 11-12.)
cuba
Mr. Rodrigws Astiazarain: "The pcopIc and t hc Rcvolut ionary Government

of Cuba wndcmn the shantefuI decision of the International Court of Jus-
tice of 18 July 1965 favouring imperiaIisrn and other rcactionary forces
in the worId and reaffirrn thcjr intcntion to Iend mord and material siip-
porl to thc people or Soulh West Africa i i i their just struggIe for indc-
pcndenœ."
( G A , OR,Twenty-first Sess., 1449th Plcnary Mcct~ng,19 Oct. 1966, p. 6 . )
rWr. i3u.tnirrh.r "Thc delegatjun of the Ctechoslovak SociaIist Kepublic

fulIy ;~ssociatesitself witti the representatives of thosz Stares which havc
cxpre:;sed their indignation ai thc Judgrncnt of thc Tntcrnational Court of
.
Justice of 18 July 1966 on the question of South West Afriw.
As the delegation of Czccchosiovakia indicated dirriny the general debate,
the C:rechosIovak Sociülist Rcpub[ic disagrces with this Judgrncnt and does
W T ' i E Y STATEMENT OF SOUTE4 AFRICA 457
not accept if. There is iio doubt that this JucIgmenl has reduced even fur-
iher the prestige of the International Couri of Juslice asan insfrunicni for
the pcaccful settlement of international disputes. The Court's decision on
South Wesr Africa has proved once again fhat that organ's acrivities are
hardly consonant with !he tasks Iaid upon it by the Charter.
In this connmtion it is pertinent to note that the composition of the
International Court of Justice is not represenlarive and dors nor correspond
tu the present situation in the world. I f thc InttrnationaI Court is to hecoitie
a usefi11 inslriiment anri to acquirc duc authority as one of the pri,ncipal
organs of thc United Kations, a change must be made in its compositian
so that it reflects the legal ,and politicaI rcaIitics of thc 'prcscnt-day world,
in conformity with Articlc 9 of its Statute. In the view of the CmhosIo-
vak delegatiun this means first and foreinost t h t the new Stafes of Africa .
and Asia, arid also the socjalist çoüntries, must be properly rcprwnted
on the Coiirt."
(GA, OR, Twenty-fii'st Sess., 1425th Plenary Meeting, 30 Sep. 1966,
P.9.)
Mr.Zinsou: "ln addition t o the impofcnce we have just discussed, oiir own
International Court rectntly deLiver4 a scandaloiis and wicked judgement
under the guise of legai and fallacious reasoning which, in ordcr to safe-
guard whar it. erroneously ctainis to h the letter of the law, h a vioIated
its spirit. It is a serious matter that such an institution should have failed
in iis duty, and i t is urgcnt that we correct the situation."
(GA, UR, ~wenty-Zrst Sess., 1432nd PIenary Meeting, 7 Oçt. 1966,
p. 12.)
(i) Mr. Yifrzt: "We have aIso k e n taught onc cardina[ lesson, i b t is, WC
have to Lake an nctivc part in s[l the organî af the United Narians,
including thc Iniernati.r>naICourt of Jusrice. To this end, we shalI demand
equitable represenlatian on the k n c h of the Court, a represcntation
cominensuratc with OUT roIc in thc Linited Nations, a reprcxnration
whjch will allow us t r ~contribute Our due share ta the fulfilmcnt of al1
aspects of the objectirw of rhe United Nations.-'
(GA. O R , Twcnty-first Scss., 1414th Plenary hleeting, 23 Sep. 1966,
P.3.1
(ii) M r . Yifru: "Secondly, since it ha k w m c incrcasinyly' apparent thiit a

change in thc cornpusilion of thc Intcrnationai Court o f Justice is urgently
csllcd for, rny deiegatinn would like IO propose that such a change k
instiruted on the Iinfs adopted in enlarging thc mernbership of the
Sectirity Coiinci[ and of thc Ectlnomjc and Social Councjl in order to
ensure an cquitable gr:agraphic distribution of .Member States in those
organs. The Ethiopian delegarion specificalIy urgcs the aniending of
Article 3 of thc Statutl: of thc Tntcrnational Court of Justice with a view
tu enltirging the nrenib1:rship of the Court so lhat it will reflect the increaçe
in t hc famjly of nations and thercby cnsurc the effective rcprmeniaiion
of al1 regions in thai body."
(GA, OR. Twenty-firsi Sess.. 1413rd Plcnary Mccting, 29 Sep. 1966,
P-6.1
m.Engotic: '*Inthis connect ion rny Govcrnmcnt cannot but add irs voice
to thoseraised in al1 parts of thc world in denunciaiion of the rcccnt Judyc-
ment of the International Court of Justice at The t lague which maintains
and consolidates South Ai'rica's domination ovcr South West Africa.
Briscd on lcgal artifice, without regard to the substance of the rnatter, thai
purety fornia[ Judgcrnent, ivhich wiuld not have been bndcd h w n but
for tlie casting vote of tlie Presideni of thc Court, is a vçriiable scanda1 in
thc c p s of al1 the S~taresof rhc 'third world'."
(Cd, OR, Tiventy-hrsi Sess., 1438th Plenary Meeting, 12 Oct. 1966,
p. 3.t
Ghana
(il M u . Arkhurst: ''lH-~e InrernationaI Court o l Justice, by its grotesque

decision of 18 July 1966, kas confrontai this Organization with a crisis of
imnienw diniensions regarding the question of the Maiidated Tcrritory of
South W s t Africa.
'1 he decisioii i t s l f has so shaken international confidence in the Court
as ta have brought it to the verge of disrepute. For the Court to havc
abdicated ils rcspansihiliries as the highest cour1 of international justice
and to appear, by dcfault, at any rate, to support the position of an inter-
nationaI pariah like Soutti Africa is a very grave issue. The GcncriiI
Assembly is thcrcfore boiind scriously to take stock uT the Court's perfor-
malice and to ensurc ihat its memhers do not tiike t heir responsibilities so
Iigh t ly as to iiiake one of the Orgai~iïation'sprincipai subsidiary organs an
in~ernuiiunalIaughing stock. -Inpari icular, the composition of the Court
must reffect the reaIity of thc rncinbcrship of thc Unitcd Vations and the
tiventy-ftrst session of the Assenihly niust ensui-e tthat representaiion on
the Court begirü: ta conforrn to the proper geogtaphical distributiun of
the mcmbrship of ihc Organization. Furthermorc, and this is extiemely
important, since the Court is tlie fcireniost body for tlie developnietit of
inteinaiioncil law and jiistice. judges eIected to the Court mus1 be men
of agilc mind and wilh thc coilragc to adapt to thc cvolving norrns of the
international conimunity. It is only ttius tliat tlieq. wn rnakc !he Iaw or
tiations a living t h ~ n :and serve the inrerests of jiistice and internütionaI
harinony. Tt is, thercforc, in this spirit that rny dclcgation will vote in the
Forihcoming elections tn tlie Ii~teriiationalCourt of Jujticc."
(GA, OR, Twcnty-Gfst Sess., 1419ih Plenary Meeting. 27 Sep. 1966.
p. 13.)
(ii) iWr- Kcrfokn: "Thc rewnt dccision of the International Court of Justice on
the South West Africü case has undnuhtedly detracted from the prestige
and reputation or the Court. nui it is ihe view of niy delegation thai every
alirmpl shouId now be made to strcngthen the Court and to make i t an
WKITIE V Sl'A~l~E.WEKTOF SOUTII AFHlCA 459
effcctiv~insiruinent for the dcvclopmrnt of a body of internatiunal law
which will have as its main objective not the rnere interpretation of static
Icgislarion, hut principally the dispens~ngof just icx: and equity wittiin the
framcwork of an evoluing ~nternationalrriorality."
(GA, OR. Tnrenty-lirsi Sess., 1435th Plenary Meeting, IU Oct. 1966,
p. 17.)
Guinca
PI.ENAKY
( i ) iWr. AchA-ar: " O n 18 Jlly 1966 the International Court of Justice, aftcrsix
Iong years of deliberntion, deIivcwd ils Judgrnent on the application of
Liberia tind Ethiopia çoncerning South Africa's administration of the
Mündated Territory OF South Wcst Arriw. The disgraccful and unexpect-
ed narure of this Judlanent immediatcly aroused indignalion throughout
the world . . . By its refusal, in 1966, to givc a dccision on the suhstanrnof
the qucxiion, the Interiiational Couri orJustice that is, the scven Judges
who voted against the 1962 dccisiuti on compeience-ha not lived up to
its rcsponsibilitiesand obligations. How etsecan onc interprci the so-called
technicül Judyrnent dtdivtred on 18 JuIy 13% in circumstanccs t ha1 cast
doubt on the integrity of sornt: of tlie Südges and on k i r impartialify?
A glance at the natiuriality and calibre of thesc scven Juùges who chose
to rcpudiate a %verdict c i f their own Courr that rvas of an irrevwable nature,
is enlightening in this rcspect. It i s enough to çee that these Jridgeç are
from Greece, Italy, th: United Kingdom and France-al1 countries that
give unqualified supyxirt to the rash policies of South Africa and secretly
uphold t hat couniry b-causi, uf 1he enormous profits thai tl~eircwnomies
derive from the piti1e.s~in.iplcmentation of thc policy OF econornic and
saciül siiivep known as apartheid. As for the Ausirü\ian Judge, Sir
Percy Spender, whasc narrie, 1 tliink, mcans 'spend~hrift' -he needs
money-his deciding vote and his conduct throuyhout the p r o w c d i n p
show that he i s not werihy of the confidence wliich the Gencral AssembIy
plaoed in him in eIci:ting hirii and whiçh his colleagues expresçed in
raising hirn t o thc high office of President of ihe Court. The undcrhand
tactics of Sir Rrcy Spender, both in the improper disquatitication of the
Pakistan kdge, Sir 2afrullsi Khan, and in Che timing of the Judgriient
handed down whcn the verdict favotirable to Soulh AFrica and crronc-
ously Iiibclled 'techi>ical' gave ri= tu no doubt, show clcarty that this
Judge, from a counir:] whcre it is not so long since the aborigines were
treated warse than th: non-U'hites of South Africa, bas chosen ta hold
high the torch oi' anachronistic racism and cutonialism, t o thc detiiineiit
of ihe dignity, tcspect:ibiIity and iriipaitiality of his office. It is indccd the
alliance of crilanial atrd r x i s t forces wiih the illcgitimrtte inlerests of an
ohsolctc world that p~evailedin the decision of this Judgc, who is guiIty
of rhe attemptcd rniiriler of ihe ltlternational Courr of Justice. AS Tor the
Polish Judge, whose kchaviour kas kitfi dennunccd by his own Ciwcrn-
ment, WC can only wi:.h for him rhat in thc golden exile he wiIl no doubt
arrange for himself jn a couniry in which he will clairn to have 'chosen
freedorn', he may qui~itiyenjoy the money he has bwrt able ro arnass, Io
rhe cxtcnt to ivhich his conscience wiIl b ~ able: t o ka thc hcwy Iiurden
tliat he is now helping tu impose 031 the unforrunate African pzople of
South West Africa. . . .
Wc must spare no c:tfort to rcdrcss iht: incalculable wrong whicli these
460 NAMiBlA (SOUTII WEST AFRICA)
Judges, oiit of turich with the realities of uur timc, and sametirnes accorn-
plices, if not 'promoters, of obsolete prcjudices, have infiicted upon the
edilice so IitboriousIy sct up for the maintenance ofpeace and m u r i t y and
for. the development of CO-operation and intemtional law."
(GA, OR, Twenty-firsi Sess., 1414th Plenas Meeting, 23 Sep. 1966,
pp. 14, 15.)
(ii) Mi-. Achknc "Immediately after the shocking Judgcment delivcrcd by the
1nii:rnational Court of Justice, the Afrimns and their friends decided to
cndeavour to inake the Court rcficct the reat inrernaiionaI situation of
todlv. We know that there was oirly one African Judge on the Court.
The hopc that was fhen expressed was that the Intemationai Court of
Jusi ice shouId reflect the prcscnt mem bership of the Securiiy Council.
The votes jus! taken show that a step has been ttikcn towards fuIfilling
ihar. hupc."
(GA, OR, Twenty-ficst Scss., 1456th Plenary Meeting, 2 Nov. 1966,
P. 3.1
Mr. .Youyafe:"Siinilarly, in the past thrcc years, the expenscs of the Inter-
national Court of Justice amountirtg to over 53.5 million had p r o d u d a
scaniialous result whnse conçeqtienes might be even morc costly to the
internationai cornmunity. A complete reorganization of the Couri was
imperatir-. The Court, while remaining aloof frvm political issues, should
be a faithful refiection of the international cornrnunity as it was tciday and
not as it had been in the time of colonial and imperialist ventures."
(GA, OR, Twenty-first Scss., Fifth Conim., 1 I32nd Meeting, 25 Oçt.
1966, p. 70.)
Mi-. tlhfmers: " M y delegation wishes ta say that it considers the Judgment
of the TnternationaI Court of Justice as a distortion of law, a denial of
justice. an insuIl to the international comcien~zand to mankind."
{GA, OR, Twenty-first Sess., 1440th Plcnary Meeting, 13 Oct. 1966,
P. 3.1
PLESARY
Mr. Csalorduy: "In rcndcring its judgement, the InteritationrrI Court of
Justicz has cntireIy disregardecl the intcmstional character of the problem
and the \i~eIl-foundedinterest of the community of nations-first of aIl,
that of the African muntries-and b s made quesiionable its own legal
compelence, in ifs present composition, and thc usefulness and nccessity
of its own existence. The judgement of the Court is diamctricaliy opposed,
also, to the requircment of the Charter that international peace and secu-
rity should be ensured in accordancc with the principles of justice and
intcrmtional Iaw and on rhe &sis of respect for the right of self-determina-
tion and the sovcrcign equality of peoples."
(GA, OR, Twenty-first Sess., 1429th PIcnary Meting, 4 O c t . 19&,
p. I l . )
W . Snwmii Sin&: "Thf Judgment is un1iktIy 10 inspire confidence in the
Tnteriiational Court. Th:re is growing feeIing in the worId that thc Inter-
nationai Court as it is cc+nstitutcdtoday is outmoded in ils concepts and is
incapable of rcsponding tu the needs of modem timcs.
(GA, OR,Twenty-firsi Sess., 1417th Plenary Meeting, 26 Scp. 1966,
p. 12.)
M r . Sharg "With a11 rrn;pect to the good name of rhe learoed Judges who
have heen able to foIluv, the conscience of mankind of the post-war era,
it is only too obvious b : ~now thai that legal forum d o s not and cannot
deserve the confidcncc of'mcn for problerns of this kind. The basic concept,
as well as the strucrure s-nd the procedures, should be broüght up to &te.
A review is inevitable. i; the Court is to serve further as an independent
organ of our world 0rg.inization to which mankinù çan put its trust and
confidence for an honest appraisal of matters in the spirit of the Charter, of
equality o l man and oneness of mankind."
(GA. OR, Twenty-firct Scss., 1449th Plenary hleeting, 19 Oct. 1966,
p. 14.)
.Wr. Vnkil: "This brings me to the conclusion thal the Court might have
reached its opinion, not on judicial, but on poIitical grouncis. WhiIe 1do
admit that the case is primarily a political and moral problem X cannot see
haw a court of justice, rspcciaIly the International Court of Justice which
iiiuçt exercise the greatest caution to safeguard its nitme and integrity
against duubts and aspersions, shouId be guidcd in its judgement bq' poIiti-
cal considerations."
(CA. OR, Twenty-first Sess., 3427thPlenary Meeting, 3 OEt. 1965, p. II.)
Mr. Aiken: "ive must, of criurse, accept the decision of the Court, but,
as a non-lawyrr, it swms to me to have been an outrageous waste of time,
cnergy and money. Indccd, I feel sure that al1 who supported the clection
of those .ludges who vri!ed for ihe decision as men who would givc wisc,
eyuiiable and s ~ e d yd#:cisions, must bitterly regret thar thcir confidence
&as mispliced . . . "
(GA, OH, -1wenty-first SCSE.. 1427th I'lenary Mecring. 3 Oct. 1966, pp.
4, 5.1
Ivory Coast
PLEYARY
Ci) M r . Usher: ". . . and the Ivory Coast condemned the Judgment delivered
by the International Courr uf Justice on 18 JuIy 1966 k a u s e it \vas
poiitically rather than juridicalll; motivated."
(GA, OR, Tweniy-first Sess.. 1418th PIemry Meeting, 17 Sep. 1966, pp.
7-3.)
(ii) fi..- Ake: "The question arisw a5 io what motives prrimpted the judges of
ihc Internatiunal Court of Jusiice to drny an wlicr docision which
acknowkdged that aIi former Mcmber States had thc right to suhrnit to
it :tt any time, individually or collectively, any dispute which niighr arise
i x t . w c ~ nihr: mandatory Power and themçelvcu conccrning the interpre
tation or the application of the provisions of the Mandate.
Ft is our tèeIing thar the Chiirt's judgement or 18 July 1966 is a scanda[
wir,hout prewdcnt in ihc anuals of Iaw. That is why it was vigorously
denounced by all justiw-loving Ciovernments. In a communiqué pubfished
immediately after the judgement, the Govemment of the Republic of the
Tvr>ry Coast exprcssed its grief and indignation in the foIIowing terms:
'The Govemmmt of the Republic of the Ivory Coast was deeply
u p x t ta learn that the Internatinna[ Court of Justice had rejected the
cornplaint of Ethiopia and Liberia againsi South Africa in thc South
West Africa case.
The judgenient just deIivered seriously and dangerousiy undermines
i he presrigc of thc In tcmüiionül Court.and thcrcby, of the United Na-
tions.
'Ihe international tribunal at The I iague has not onIy shown itseif
incapable of c o n ~ i v i n yof and taking I he jusl and rcasonablc docisions
i-cquircd to settle a problein involving the honour, freedom and digtiity
<-ifman. hut also deIivered a judgnient * hich is al1 the mort: scii~ldaloris
since il Ilayriintly cuntradicts thc advisory opinion which the same Court
detivered on 1 1 JuIy 1950.'
.4s the head of my delegatirin said here Iast week (1 41 8th meeting), we
feel that the judgement which the International Couri of Jüsiicz ddivcrcd
on 18 July 1861 was based not on Icgal, but on political coitsidei-ations,
a11 cRorts to prnveothenvise notwithstand~ng.
'ln the Ivvry Coasr \vc havr: scrupuloiis rcspcci for insiiiu~ions,but this
repeci cannot prcvcnt us frorn depioring the fact that the judges of the
International Court of Justice did not consider it their duty to confine
theniselvcs sirictly to lcgaI argumcnfs in vcrifyingthc many and continucd
viulürions of the Mandate by Soutli Africrt. Instead, they ailowed tiienl-
seIves to k distracteci by considerations which had no beariny on the
suhjeci-mattcrof the ctiniplaint . . . The judges must have aIIowed ihem-
selves to he su7ayedby other rnoiives. Tor we find i t hard tu believe tbat
these eminent judges çouId have deIi beraiely committed suçh a &ring
err-or, which discrcdits the Court and the United Nations, unless they
had beeiiguided by ottierconsideratioiis.
-Knawing in advance the vcry ncgativc reaction South Africa was
bound io httvc if. by chance, the Court had honourcd fhc Africans'
request, the judges-influenced by severai I'owers deepty involved in the
prewnt situation, which enables them to pillage the Terrilory's vat
raourccs-saw inimediately the possible conscqucnccs for thosc P o w ~ r s
if the United Nations dgided ro inipiement the provisions of Article 94
(21 of the (::barrer. The judges preferred to coniniit an injustice rather
t h m providc iin opportunit? to have recourse to thosc provisions . . .
WC muid consider a new iippeal (O the Court, but such an üppeal
4b4 NAMIRIA (SOUTH WEST AFIIICA)
the Govcmment of Ausrralia is determincd to put up anothçr candidate

for election to the InternstionaICourt ofJustice."
(GA, OR, Twenty-fint Sess., 1422nd Plenary hfeetinç, 29 Sep. 1966,
pp. 14, 15.)
Libfria
PLENAKY
(i) M r . Grimes: "Thus, as a resuIt of dearh, diuability and spurious dis-
qualification apparently engincered by the Court's Presidcnt, t ranspar-
ent justice was dcnicd and seven men perverteù justice and brought
upcn the Inlemational Court the greaicst opprabrium in its history.
P.s the President O € Liberia, speaking on 26 JuIy 1966, dcclafed:
'Thc decision of the Coiirt, rhat applicants liad nu IcgaI interest in
the use, and its rcfusal to go into the merits aftcr its previous detrr-
niination in Deceniber 1962 t hat applicants did have a IegaI interest and
thc Courr had jurisdiçtion to determine the case on its mcrits, rcavour of
casuistryandlcgalpyrntechnics,whichis, to say the Ieast, most surprising
and puzzling. It in fact generatcs uopIeasant suspicionsabout rhc Court.
T believe in due respect, regard and subrnission to the final decision
of a Court ofJustice because 1 beIitve in t hc ruleof iaw; but a decision or
jiidgemerit of a court such os the International Cour1 of Justicc in the
South West Africa case dvcs not adinit to obtaining submission because
i t is opaque as to law, justice, equity and morality.
11 is JO opaque that it cannot borrow Iight from any legal or moral sun
l o ilIurnine it but ir is transparent wit h riicism and the old game of
colnnialism; and it lead% one to wonder whcther it is not the handiwork
of men srill infused and imbucd with bias and race prejndice'."
{GA, O R , Twenty-first Sess., 1414th Plenary Mccting, 23 Sep. 1966,
pp. 8-9.)
( i i ) M r . Grimes: "On tlie most flimsy pretext imaginable, for which n o good
word has k e n said by any reputable Iawyer o r schoiolar, the 1966 judge-
inent refuscd to give effect io the dcar rneaninp aiid scope of the 1962
judgement, which was 'final and without appeal', in terms of the Court's
own Statute. The Coun evaded its responsibiIity-and, I rnighi add, its
opportunity-to adjudicare ripon the real merits of the dispuic, as the
19G? judgeiiient obviousiy required. Instead, the Court made a futiiity
nf four years of pIeading and oral argument on the merits of the case by
holding that aIthough the Applicants had a suficient standing to 'activate'
the Court-whatcvcr that word may mean in rhis context-they were not
enticled to a judprnent on thc vaIidity of their claim. Such an aberration
of thc jüdiciaI process can hardly lx caIIed a 'victory' For anyone mncern-
cd. Tt represenicd a totaI Ioss, most of al[ for the reputation and dignity
of the Court itscIf."
(GA, OR, Twenty-first Sas., 1433rd I'Ienary Meeting, 7 Oct. I966,p. 12.)
Libya
fLENARY
Mr. Ei Btmri: "Unfortunately Ihe Judgment of 18 July h a suggesied that
ihe ii~terestsof international finance, which is hand in glove with the
racist rkgirne in Soiith Africa, iiiight influcncceventhe highest international
legal autliorily."
(GA, OR, Tweniy-firsl Sess., 1524th Plenary Meeting, 30 Sep. 1966, p. 7.)
"1-n
M r . Rokn~o~~tnlaio: South Wesl Mrica, t hat sanie tiovernment is
introducing seyregation laws which have already becn rcjccted by the
universa[ conscience a t ~ dis claiming that the Mandate which it hoIds from
ihe League of Nations puts it bcyond a11 Unilcd Nations coritrol, despite
the decisions handcd d3wn in 1950 and 1962 hy the Iirternationai Court of
Justice, ivhose ~ & l o u remnts Judgment has not aItered the substance
of the operative par1 of rhose decisions: namely, fhat thc United Nations
is the sucessor af the League of Nations."
(CA, OR, Twetity-fir.rtSess., 1445th Plenary Meeting, 17 Oct. 1966. p. 2.)
(i) JWY. Ou.stnai? Bo: "Tt i s no1 niy intention to undertake a leml exegesis.
I inerely urish to ernphasize thc flagrant çontradiç~ionk t w e e n the 1962
and 1966 judgemcnrs. between IWO decisions bl; the same Court. WefeeI
that the 1atterjudgemc:nt seriousIy impairs the institution's prestige and itç
authority whjch should be universa1.
Tt thus sccrns essential and urgent for the A~wrnbIyto decide on the
reforrn, a r I should s i y , the complete r~oristructiori,of the Court, and
on a fresh look at the Court's Statute and its inrerpreiation, for the
mcrnbership OF the G ~ u r rno longer reflects the relationship between the
various world fores, or thc lcgal and polilia[ realities of the present
international situatjo~i.It cannot meet current necds in the area af inter-
national relations, for ii sliI1 adheres to a narrow, staric and anachranistic
interpretation of international law that is out of step with the present
intcmtional situation. . .
The prohlern of Sosth West Africa is not, moreover, a legal problem,
and it was simply to shoiv that they had faith in that legal institution
that fhe African courttries appealed to tlie Court. But that faith can na
longer exist ;the Africiin peoples have lost faith in rhe Coiirt.
A nation's future cannor be placed in the hands of a jurist, whoever
he inay he, but must nkpcnd on political judgement and choice, adopted
judiciousIy and not on a false technocratie basis d-igned to scrvc huge
financial capitaf intercsts fhat are so abundant in this African country."
{GA, OR, Twenty-first Sess., 1433rd PIenary Meeting, 7 OCI. 1966. p. fi.)
(ii) Mr. Ba: "The cecent siatemeni by the Tnternational Court of Justice was
likc a daggcr in the hcart of ail Africans, for i t has rnercly strengthmed
the lust of South M r i c a for aIl this arca left to its mercy hy the defunct
Leagiie uf Nations. W: urge thase judges who assurncd thé giave responsi-
biIity of such a decisinn to examine their consciences as men. Therecan
be no doubt tliat the)- iviIl feel, as well as the wejght of their verdict, the
disappointment and icdigtiation of other men. We think of the throc miIlion
Africans now handed ovcr to their executioners because of the complicity
of seven metribers of ri institution whose aim, by a tragic irony of fate,
is to do juslice, to cnsure equaliry arid ta defend thc rulc of law and inter-
national custom."
(<;A, OR,Twenty-lirst Sess., I443rd Plenary Meeting, 14 Oct. 1966,
p. 13.)
Mongolia
M r . . % i ~ ~ r :"Events in South West Africa have taken an even more

criticirl turn as a result of the ienjust and unjusiifxd judgenient handed
down by the international Court of J u s t i ~in~ the pruceedings instituted
by Ethinpia and Liberia against the Ciovernment of the Republic of South
Aftiw.
Thi: Internatioital Court of Just ice has handed down a decision which,
in efftxt, encourages the irntair;fuI actions of the Soiil h African racist régirne
instcad of condcrnning Souih Africa's virtual annexation OF the Mandated
'Terrirorir. of Sauth West Africa and the application
-- of the criniinal poIicy
ofapitrtheid to ils popukation . . .
Thz judgcmcnt of the Internarional Court of Justiceon the question of
Soutlt West Africa has once again sliown thnl in its wvrk ihai budy
is incapable olrefieçting the spirit of the timcs and is no! equal to the tasks
cntrustcd to i t by the Charter o f thc Unitcd Nations.
In this coniiection, the delegatioii of Mongotia shares the view that
serioiis consideration should be given to the necd to nlake the structure
of thc Court reflect the changes rvhich have accurred in the alignment OF
forces in the world and within the United Nations itself."
(GA, OR, Twcnty-first Scss.. 1429th Plenary Meeting, 4 Oct. 1966,
PP.5-6,7.)
Niger
PLESARY
Mr. .Yidikou: "For our pari, nu doubt is possibic and it is not going too far
to rcfcr to this iniquitous judgement as frivolous. Be that as it niay, nly
country, in the name of hurnan rights. rcjccts the conclusions of a juridii~il
forrn:iIisrn inspircd by obsolete iiotions of race, colour or civiIization."
(G,4, OR, Twenty-first Sess., I434fh Plenary hrfoeting, 10 Ocl. 1966, p. Y.)
Kigeria
(i) >W.Adeho: ". . . the Iiitertiatiorial Couri of Jusiicc now stands discredited
and the confidence, particularly of the developing coiintries, in the inter-
nationaljudiciary has been seriousIy undermined . .."
(GA, OR,Twenty-first Sess., 1423rd Plcnary Mccting, 29 Sep. 1966, p. 24.)
(ii) ,Wr. Adebo: "NO comment on the present situation of South W'CS~ Africa
wiII be cvmplete wiihout a word about the recent astounding judgment '
of the International Court of Justiw. On this also, 1 shall k brief, for
the las said about the remnt dccision of the Court, the betrer for its
reputation and its cffcctiveness as an insrrument of internatinna! justicc
and Iaw . ,.
The C'nurt reverscd itself, after six years, and decided that Ethiopia
and 1-iberia had no Iegal standing or interest in the case. if this is not
irrespunsibility, we wonder hoiv cisc i t can bc catcgorizcd. O u r consola-
tion fram the whole sorry cpisode is that as many as half the members
of the Court rcfuscd ta join in this travesty of justice."
{GA, OR. Tweiity-first SES., 1429th Plcnary Mccting, 4 Ocl. 1966,
pp. 2,3.)
WRITTF N STATEMEhT OF S(>lJTII AFRICA
,'Mi-. BrluwrJe: ". . . I an1 nrit rcfcrriny to [he tangential and devious
Judgmcnt the Court haijust handed down."
({;A, OH, Trvcnty-Lir:;t S e s . , 1439th PIenary *Meeting,12Oct. 1966, p. 5 . )
MY.Lopcz: "In the face of this series of thrcc advisow opinions and the
Judgment of 21 Deceniber 1962, the Court's Judgnlent O € 18 July cm be
regarded only as a fllil:e, an accident, pcrhaps as an anomaIy. Kt was not
a clcsr-eut miijoriiy dec,ision lxcause one membcr, in accordance with the
rules of the Court, had to votc twice in order rocreate thestatutory rria-
jority. Morenver, three Judges, who wcre known ta be sympathetic tu
thc applicants, wei'e ufiabIe to participate in thc final JudgmenI: one had
died shoi-tfy bcforc Jutigment was duc, another w x ttaken gravety i11, while
a thjrd, who h d been ,rhreatenedwith disqualification, was too nobIe and
* d m n t to fighi thc iricib-c to disqiialify him. Thus by thc accidental çircum-
stances of death and sickne~?,and a scnsc of decency on the part of one
Judge, wkich his oppcnents niight have donc welI to emulate, a decision
has been foistcd un tht: world tkat mèn of gond sensr: and good will shall
rue for a long tirne to corne and none niorc dceply than the loyal friends of
the Corirt i tseIf.
For this is a decision which the tcchniçal rnajority of thc Court, knuwing
full well that it \vas siire ooly of this kind of majority, did no& have thc
courage to make upori thc subsiance of tlie case irxlf; tu have Jorie so
would have been to violate toacrudely thc reason and the conscience of rhe
vas1 rnajority of nianb ind. The aitematilte, thercforc, \vas to give South
Africa the appcaranw of a victory thaf would iiot he quite a victory on the
issues, and this could bave been done only by ruling upon a filie point of
Icgal procedure. In shcat, rheCotirt has given thc worId a decision thrnugh
the back door kcausc- it ivould hsvc k e n too embarrassing to givc fhat
decision t hrough the frlint door."
(GA, OR, Twenty-lirst Scss., 1417th I'lenary Meeting, 76 Sep. 1955,
p. 20.)
Mr. Ceur&rrsr.u: '*Thi; decisinn nf the lntcrnational Cour1 of Justice

obliges us to wilect artew upon the 'irnpartiality' of the Court and upon
its ability to serve the cause o f promoting one of the principal purposes
of f hc Unitcd Nations. namely. thai of hringing iibuul 'by peacefuI means,
and in conformiry with the principlcs of justice and international Iaw,
arljiisrment or sett1err;cni of internationü1 disputes or situations which
rnight lead lu a brcach -3f the peace'."
( G A , OR, Twenty-fit st k s . , 1439th Plenary Meeting. 12 Uct. 1966, p. 4.)
Rwanda
PLENARY
(i) :tir. &waraga:a: "The Govcrnrnent of the Kwandese Rcpublic did not
hesitare t o join the Afro-Asian countris and other friendly countrics in
calegorical1y candemning the Judgmennt rcndered by the International
Court of Justice. We wclmrne the decision taken by t hc African Siaies
in r-quesring that the General AsscmbIy should consider tht qucstion
of South West Africa as a matter of priority. Indeed, rny delegation
eagerly spoi~soredthis proposai (A/6386).
We continue to believe ttiat tht prclirninary ruling of the Internaiional
Court of Justice in Decembcs 1962, when the Court dcçided that it was
cornlietent to p a s un the substance of the disputc, has not changed and
i s st il1 completely valid as conxrns the status of South West Afrim. The
dcciiion of last Juiy was, in our e y a , a surprising and disappointing
contradiction, and WC wrinder whether one u n place any further trust
in ~ h Court."
e
((;A, O R ,'Twenty-first Sess., 1428th Plenary Meeting, 4 Oct. 1966, p. 4.)
(ii) !Wr. Mudenge: "Since the International Court of Justice handed down ils
Judi;ment on 18 JuIy lasl, thc situation in South West Africa hau b ~ c n
thrcatening to explode at any momenl. The Court's dccision aroüsed the
revulsion of the whole world and pIaced in question the very existenca
of the Court .. .
Tlie [niernational Court of Justice was estabIishcd to act as an arbiter
and to heIp mcmber States setilc their disputes; but hy its Judgment it
kas !est the confidence of thc whote w ~ r I dand derrionstratcd that it is no
Ionger adapled IO our times."
(GA, OR, Twcnty-first Sess., 1439th l'lcnary Meeting, 12 Oct. 1966, p. 1 .)
C~MMITTEE
FOURTH
Afr. ,V~irinkitidi:"The hrernat ioiial Courr of Justice, whox meni bers
should have the highest moral quaIifications, had sct a n iniquitous prece-
dent in the case of South Wesi Africa. It had sided with the brute force
of evil, which was what South Africa represented. The welfüre of the
people of South Wcst Africa coiilù be enlrustd neither to the Intertiational
C:our~ of Justice nor to South Africa."
( G A , OR,'Twenty-first Sess., Fourth Comm., IS03rd Meeting, 4 Oct.
1966, p. 41.)
Saudi Arahia
I'LEN ARY
Mr. Barwdy: "1 t took the Internat ional Court five years to pronounce
itself on a teciinicality, on form. 1 ihink rnost of thc Judges are gentlemen
of mare than sixty years old. If thcy were to pronounce theniseives on the
subs~anoe,ihey wouId be dead and their bones bIeached with oiir bones
heforc they could yivc any verdict. Su cross out thc International Court of
Justice from the book of Souih West Africa and any idea tliat we shall ever
derive any tangible restilt frorn approaching jt. .. .
Now, T am nol making fun of the Judges-fur, aftcr aIl, I am ovcr oO
ni~self-but they must havc bccn too reIaxed, enjoying the tulips of the
NethcrIand?, looking at the windmilfs, and those uf them who wert:
smoking ciçars watching the curIs of smukc. T t t m k ihem five years-
five years. Poor Liberia aiid Ethiopia; pour Saudi Arabia if it had joined
them in plaçing confIc.,ence in the hope that the Court wcirild pronounce
iiselî witli disparch. Ttiank Gnd WC wcrc not one of the pleaders becau.%
we haù Our suspicions of certain rnernbers of the International Court,
dcspite our cunfidcncc in certain individuals."
(GA, OR, Twenty-tirs1 Sess., 1431st Plenary Meeting, 5 Oc!. 1966,
pp. 14, 15.)
PLENARY
:Wr. Thicrm: "Yet in srite of everything how can we faiI to feeI somewhat
pessinlistic in the face ihe recent Judgment detivered by the Inlrrnatiunal
clf
Court of Justice in tlie case of South West Africa? This problcm wiIl
ccrtairily be taken up ;[gain during thc sppecial debate. But we cannot heIp
drawing attention, in passing, to the actual deniai of jusrice that we are
witnessing. WC al1 know, of course, that the Tntemativnal Court of Justice
is above ail a politica! organ, by virtuc of ihe very manner in which its
rnernbers are çelected. Hüt i t rnight have been thought that ceriain geneml
principles rhat havc bccn repeatcdly afirmed, particulariy that of the right
of peopIcs to self-determination, were sa wicIely accepted hy the univerd
conscience that they verc nuw parr of the unwritten law of intcrnotional
society. . . . 'I'hconIy iriterest dcçmed worthy of Iegal protoclion, according
to thc logic of the Cr~urt-a iagic that was no; formulated, biit logic just
the saine - is the intet4etof Soutli Africa. We shall have to s a , during
subsequent dehata, what solutiotls van be contempIated. But it seerns tu
us thitt WC shouId reflxt here and now on thc composition of the Inter-
national Court of Justicc. WC have requested and obtained thc er;p;uisiait
of the specialized oreans of t h United Nations, such as the Security
CounciI and the Econn3iniçand Social Council. We should aIso studr the
Statute of the Internariona1 Court of Justice, examine the composition of
the Court and cal1 for its enlargenicnt. in order IOensure a more q u i t a b l e
representation or the non-aIigned counirics and the forces of priigress."
(GA, OR, Twcnty-fi-rst Scss., 14 14th Plenary Meeting, 23 Sep. IY65,
pp. 74, 25.)
Sierra Leone
Mr. Kuilon: "Thal dixision, delivered on 18 July 1966. disrnissed the

charges of Liberia and Etltiopia against the Kepublic of South Africa
withouf mling on the merits of ihe cax. This came as a great shock to
Iny Government and io most of the reasonabIc nations of thc wortd. Tt
deaIt a stunning blow to the authority and integrity of the lntemational
Court and rliised serious questions in thc minds of those who cherish the
value of the ruie of laiv in international relations."
{GA, OR, Twenty-first Sess., t4191h Plenary Mecting, 27 Sep. 1966.
p. 10.)
PWSARY
Mr. Cooinarnswotr~y:" M y deIegation does not beIievc that this decision
of the Court hiis enhanced its reputütioii as an institution serveù by wisc
and jiist inen, for the Judgernent of the Court on this issue iu neither wise
nor jiist, nor is i t even in accordance wirh the dictates of caiiinlon scnse."
(GA, OR. -1wenty-firsr Scss., 1420th Plcnary Meeting, 28 Scp. 1966,
p. 12.)
(i) ~tfr.tl :iiitf&i. "The cntire Afiican pcoplc expecrs this Asscmbly to pas5
a Judgnieril which wilI resrore to the paple of Suuth West Africa ttii:
right io independence and progress thal has bccn denied theni by rhe
Govcrnment of apartheid i i i Pretoria and betrayed by the International
Court of Juslicc."
.
(GA, OR,Twenty-firsl Scss.. 1427th Plenay Mccting, 3 Oct. 1966, p. S.}
(ii) MI-.EI MuBi: "We now declare thai thc timc has corne for a more equit-
able and ndequatc representation of the ernergeni nations on this Court,
in ct>nsunanccwith tlicir rcprcsentation in other organs of the United
Nations. And again we decIare, kforc this Assembly, our irreversible
corninitnient ( o shodder our sharc of al1 United hralions cRorts towardj
the restoration of freedvrn to the people of SuutIr West Africa,"
(GA, OH, Twenty-first Sess.! 1440th Plcnary Meting, 13 Oct. 1966,
P 16.1
(i) Mr. ~Mgüiija:"We helieve rhat thjs experience-the most receirt Judg-
tnenl of the Internarional Court-sad as it is, has been a salutary lesson
IO the newly indcpcndent coiintries in their struggle for eflcctivc repit-
senration in al1 internationa1 bodics."
(GA, OR, Twenty-firsr Scss., 1417th Plenary Meeting, 26 Sep. 1966,
p. 19.)
fii) M r . Mgutija: "1 have aIready stated in my earlier intervention that my
delegaiion, together with other Afriwn Sratcs and a great niinibcr of
orhci' mernber Sfaics of this t.>rganization,has k e n profoundIy shockeci
by the recent decision of the Intcrnarional Court of Justice coilcerning
South West Afrim. Thar decision. becausc of the unexpectedly narrow
grounds on which it wa. bas& and the unsatisfactory prvccdurcs under
which the case wüs coiiducted, kas severely shaken the confidence and
respect which had hithertu k e n frlt fur the Court. In fact, the decision
was a s great it blow to international law and the principIe of tIic pacific
scttiement of disputes betwecn States as i t was to liberty and human
diyiity. TRc harm done will be alrnost irrepüriiblc unIcss ekctiite action
is iakcn to ensurc a more equitabIe geographical distribution of the
Court's nizmbership and niorc rational judicial prwediires."
(CA, OR, liilenty-first Sess., 1437tli Plenary Mccting, 1 1 Oct. 1966,
p. 5.)
"It has b w n said lhat ihc Cornmittee should take an orer-aII

Mr. Itf~iiijin3u:
vicw of the activitics of bodies such as the International Cour1 and not be
swayeri by particuiar aspects. In repIy, he would ,say thiit Africans had a
472 Nnir?rnrn ( s ~ u nWEST
i AFRICA)
:Wr. .Krrkbiakin: "The increased appropriation sought undcr thar section

nias due nlainly to additional expenditure in connexion nritli.the South
West A i r i a case, in which, after Iengthy dèliherarions ihe International
Court of Justice had tokeii a decision that could only k dewribed as
shameful, since it was contrary t o the interests of the people of South
West Africa and to thc principles of humanity and jusrice. In obedience to
its Siatute, the Court should have rendcrcd a decision consistent with
Cieneral AsenibIy resolurion 1514 GV), condemning racisin and coiunial-
ism. Instcad it had given ihem i t s support. Ta smk additional appro-
priations for an organ whose actions wcrc thus at variance with the
fundamental principles of the United Nations was ilIopical."
(C.4, OR, Ttventy-first Sess., Fihh Comm., 1124th lMeeting, IO Oct.
1966, p. 23.)
PL~NARY
illr, .llborufa: "We arc surprised thar the Court, whose prestige has un-
doubtedly decliiied since i ts [alest Judpcnt should have mntented itself
with a purely prmdural decision. . ..
The International Court of Justice has Iost a unique opportunity to
aflimi its authoriry as an interpreter of the law. Estiiblishcd at a tiiiie when
the world was altogether difluent from the worid of today, the Inter-
national Court of Justice, so far as i t s composition is concemcd, is no
longer consistent with current rality. To rcvise its comprisition caufd nat
but henefir the entire United Nations."
(GA, OR, Twenty-first Sess., I4251h Plenary Meeting, 30 Sep. 1966,
P. 6.1
M.Rojas: "Althouyh the Court did nat go intn the suhstane of the issue
and ~rinsideredonly the appIicants' legal standing, my dcl~gationfccls
Ihai the Court's decision haç given rise to well-founded distrust and
suspicion as to futurc dccisions of that high trihunal.
My delqation believes that the International Court of Justicc has madc
valuablc contributions to the a u x of right and justice; but i t is also
conccrned over the fact that strict and scrupulous adherence t o legal rules,
to the exclusion of political and humariiiarian considecatiuns such as those
involvfd in tttis matter, could rcnder sterile the decisions which that high
court rnay h n d down in the future."
(GA, OR, Twcnty-first Sess., 1431st Plenary Meeting, S Oct. 1966,
p. 13.)
blr. Beiovski: "Ir is inconceivable, in the lighr of the tragic position of the
non-white population in Souih West Africa, and in view of the obnoxious
polip of apartheid, that six rnernbers of the IntcmütionaI Court of Juslict,
WRITTIIN STATE%lEb"I'OF SOUTH AFRICA 473
by availing themxlws or Iegal fictions and procedural technicali ties,
avoidcd pronouncing tliemseIves on the merits of the submissions prcscnted
by the Governments of Ethiopia and Liberia. I n out opinion, the six
Judga thereby acknov~lcdgdthe lact that an imparti81 appraisal of the
present position of the population of Soiith West Africa and of the policy
of South Africa with regard to that Territory would lead to a wncIusion
tkür South Africa hiid violaicd thc terms of the Mandate."
(GA, OR, 'I'wenty-first Sess., 1439th PIenary Meeting, 12 Oct. I9S6,
P. 8.1
Zambia
PLEN
ARY
M r . Kapwepwe: "Lndad, the Interiiational Court of .lustice a? l'he Hague
look six long years of costIy Iitigation, involving xorcs of sessions and
thousands of pages nf wordq, only to frustratc firially the wishcs of the
indigenous people of South West Africa, only to disgrace this Our own
Organization, by cowardly shirking its responsibiliiy to thc peopIes of the
world, by shainelessly ludging nat IO judgc . . ."
(GA, O R , Twenty-firjt Sess., 1415th Pleriary Meeting, 30 Sep. 1966, p. 1.)
.
1 GA Ke.iolufiori 1565 (XY),18 Dccemhr i%0
(GA, OR. Fifreenth Sess., Sup. No. 16 (Aj4684). pp. 31-32.)
Operative pangraph 4 of tfie resoiution cornrnendf rhe Governntents
of Hihiopia and Liberia on laking the initiative in subrnitting the dispute
conerniny South West Africa io the Court.
In Foirrrh Commirree:
!Wexict, voted in favoiu: 1076th Meeting of Fourrh Cornrriitiw on
6 D ~ r n i b c r1960. (GA, O R , Fifteenth s&., Pourth Comrn. (Part 0,
p. 457.)
Nu roli-roll vole t a k n ~ :Itesrilution adopted 86-0, with Ci abstentions;

954th L'Ienary Meeting an 18 Dece~nbcr1940.(GR. O R , Fifteenth Sess.
(Part I), Vol. 2, p. 1387.)
?. GA Rcsoiririori 1568 (X VI,d o r d 18 Becrinbrv !%O .
(GA, OR, Fifteenth Sess.. Sup. No. 16 (A/4684), pp. 33-34)
AIiegatiun iha t thc administration of Saut h West Africa-
"particularly in rewnt 'ars, has been conducted in a manner in-
crcasingly contraiy to the hlandate . . ."
The raoIurion "depiorcs" thc administration of South Wesl Africa as
being-
"contrary to its obligaiions under thc international Mandate of 17
I l m n i b e r 1920 . . ."
I n Fowrh Comniirlrr:
hle.~icuvoted in favour: 1076th Meeting on 6 Dccernher 1960. jGA, OR,
Fifteenth Sess., Foiirth Comm. (Part 11, p. 460,)
:Mexico voted in favour: 954th Plenary Mtxling on 18 Uecember 19GO.

(GA, U R , Fifteenth Sess. (Part I),VoI. 2, p. 1388.)
3. GA Rr,mluriun 1593 (XV;, daied cl6 Murch I P 6 1
(GA, OR, Fifteenth Sess., Sup. No. 16 (Af46861Add. I), p. 7)
Mer d i a , aIleged attemprs by South Africa to assimilate Sauth West
Afrir:a are mentiontui.
TIiis rcsolution was prriposed hy klexico and Venezuela: ree statement
to tl-iis eKect by Mr. CasiaÏïedii of Mcxico; 963rd I'lenary Meeting
on 16 March 1961. (CA, OH, Fifteentli Sess. (Part II), p. 19.)
(Cf.speech by Mr.C:uevas Cancinn or Mexico during the I076t h Meeiing
of the Fourth Coitiniittee on 6 Doccrnbcr 19ti0 in GA, OR, Fifteent h Sess.,
Wurth Comm. (Part 1), p. 456-1
4. GA Resoiiirioti 1702 ( X V I J , d ( i ~ ~t9r iD~crmber1961
(GA, OR, Sixteenifi Ses., Sup. No. 17 (Aj51ûO), pp. 39-44].)
'I'Iie allegaiion is madc of cxpa?idili~nriiirarizn~iotrfor the purpow of
oppr essing rhc indigenous people, creating an "jncrcasingly expIo~i\~e
\ R I T T E K V A T EMENT OF SOUTH AFItICA 475
situation which, if allo.hUedto continue, wiIl endanger internatioiral pcace
and security"; and of ,:.xrsistentM u r e by South Africa to fulfit its intcr-
national obligations in the administration of South West Africa.
The resolution provides for the appointnieni of a Cornmittee "whose
task will be io achieve, in consultation with rhc Mandatory Pouner",. . .
itzi~rnlio,
"The repeal of al1 . . . ltiws and regulaiions which e a a h l i ~ h and
maintain the intoler;thle system of ap~rlheid".
and-
"Preparatioris for gtneral eleçrions Io the Legislativc Asscrnbly, based
on univena[ adult suffrage, to bc hcld as soon as possibIe undcr the
supervision and conrra1 of the United Nations."
III Fourth Commitr~e:
Mexicu voted in favoiir: 1247th Mocting of the Fourth Cornmirtee on
13 Dccember 1961. {:GA,OR, Sixteenth Ses., Vol. 1, p. 588.)
Puki.smn votcd in favoa~r(ibid..)-
in Ge~ierolA.ssenth/y:
No rolI-cal1 vote taki:n: rasolution adopted 9&1, with 4 abstentions;
I083rd Plcnary Mo:ting on 19 Deceniber 1961. (GA, OR, Sixteenth
Sess.! Vol. II, p. 1 IC6.j
This resolrrriurr w r rrferred 10 wirk opprova/ b.v h f r , Przdiila A'crr,u 01'
,Wexiro:
See Report of the :jpcciaI Committce for South West Africa in GA,
OR, Seventeenth Se.;s., Sup. No. 12 (A{5212), Annex 5, pp- 18-19.
5. GA ResoI~~fiorz 1805 (XP'II), tioied 14 Derember 1962
{GA, OR,Seventeenth Siss., Sup. Nn.I7 (A/5217), pp. 38-39.)
Confirrnation of, inrcr a h , resolution 1 702 (XVI) rnentioned aboile.
In fourrh Comiriittee:
Mexico votcd in favour: 1389th Meeting of the Fourth Committee on
19 Novemkr 1962. (GA, O R , Seventccnth Sess.. Fourth Comm.,
Vol. Ti. p. 406.)
Iri Generni Assembb:
No roll-cal1 vote taken: resolution adoptcd 98-0, with 1 absrention;
1 194th Plenary Mertinç on 14 December 1962. (GA, OR, Seventccnth
Sess., Vol. m, p. 1 146.)
6. G A Resolutivn I Y 79 ( Xt'£il],d u i ~ df 7 Dcccrnber 1963
(GA, OR, Eightetnt h Secs., Sup. No. J 5 (Aj5515). p. 5 L.)
'I'he resolution, innpr aficr, "wndetnns" South Africa "for its non-
cornpIiance with the Cicncral Assembly resoIutions with rcgiird tu South
West AfriciL".
The Pakis~rirndeicgation suppvrfed this resalution. S e lhe roll-cal1 vote
at the 15115th Meetin€-:of the Fourrh Committee on 13 Doccrnber 1963.
GA, OR, Eighteenth Sess., Fourth Cornin.. Vol. II,p. 586.
NAiMtnIA (SOUTH WEST A ~ K I C A )
(i) Mr, fiaiirrfuni; ". . . hc had vety carefulIy studied rhe reports of the
Cornmittee on South West Africa (Ai4926, A/4957).The Cornmittee waç
io kc congratulared on having submitted such detailed reports in the face
of tlie non-CO-operation,and even the hostiIity, uf the Government of
Soitth Afnca. The reports ctinfirmcd the exxplosive siruation in the
Territory, and warwntcd the cr>ncIusion that Soulh Africa was unfit to
adiiiinister it. Thc conclusions and recomrnendations in paragraphs 152
ta 164 of the report of the Cornmittee {A1492h) desewed the fullest
crinsideration.
Since 1954, t hc Cornmittee on South West Africü had repeatedly corne
tu the conclusioii that the Mandatory I'ower had continiied to adminisler
the 'I'erritory on the bosis of an aparlheid policy, which wcis contmry
to the Mandatc, to thecharterof rhe United Nations, and to the Univerd
DecIriration of Iluman Rights. South Afrim waq the only State in the
ivorld that oiiiciaIIy practised the doctrine oiaparihcid, racial scgrcgation
. and discrimination, which the United Nations and worId opinion
unceasingly condemnrd. Thc Cornmittee's report described the eftécts
af tliat doctrine in the politial, economic, social, and cdu~ationalficlds.
It was by reason of lhat poIig that the Mandatory Power, in the Com-
mittee's opinion, was n o Ionger qualified to continue its administration
of the Territory.
Thc fact that rhe South African Government w z i planning to annex
the Mandnied Tcrritary, and to integratr it pro&reQSivcly in10 South
Africa itseIf, had led the Committec to the concIusion that no solütirin of
the situation wauId be acceprable to that Government u n l m it were
bascd on the virtua1 annexaiion of the Territory. By its refus1 to submit
reports to the United Nations and to recognize the supervisory aufhority
of the United Nations over the adniinistration of the Mandated Terrilory,
South Aliica hiid violated its obIigationç under the tems of the Mandate
and of the Charter. It was pcruisting in disregardlng the resolurions of the
Gcneral AssembIy, and had rejected t h e e advisory opinions of the
Internalional Court nf Justice. This attitude compelled the Cornmittee 10
find a speedy solution.
in accepting the Mandate over South West Mrica, which was inhabited
by gieoplcs not then considered abk to assume a full measure of self-
govcmment, Soutii Alrjca had agreed ro assume a number of obligations
itnder the supervision of the League of Nations. Thai Mandate had
inentioned neither cession o l lemitory nor tmnsfer of sovereignty. The
gencral oliligation Io promotc to the utmost the material and moral welf-
being of the inhabitanis, wliich wnstitutcd thc vcry csscncc of the ucred
trusi of dvilization referred to in Article 22 of the Covcnant of the
kal:ue of Nations, could not have ceased to exist b e a u x the League of
Nations itself had ceased to exisi. South Africa stilI continucd to be
bouiid by the internationd obligations set forth in Article 22 of the
Mr. C:IIPVI;S C ~ r ~ c i n"\+'ith
o; t the actions of the representative of
r c s p ~ to
hlcxic:~,1 should Iike to dispel al1 dotibis once and for aI1. Men, as aich,
are al l falli ble, but in any casc it ciinnot bc said thur their mistiikes reflect a
country's forcign policy, which is liiiked with its o m real philosophy of
Iife. Nothing they could do woiild diange a policy like Mexico's wIiidi or1
ihe sitbject of ihe equality of pcoplcs and thcir right to sclf-dctcrmination
has ncver 'aried.
In uhe above-mentioned commitniqu~rhrre is no rrf'erence to the policy
of apartheid. NevcrthcIcss the statcments of the Primc Ministcr of South
Arricd oblige me to refer to it. Wiihout denying its own inmnst beliefs,
h?exico's only position could bc a çomplcte rejcction of this policy. . ..
Nci thcr ciin Mcxico condane the sacrifice of one pmple by another on
the sitar of suppositious and obsoleiç inierests; even less can il respect
such subjugation whcn it is based on completcly inadmissible racist
thcorics. . . .
?'hi: only new position which WC could acccpt as of vitaI in~por~nce
woiiltl be Ihc abandonment of tlie apartheid policy. If the Govemment of
South Africa can assure us that this wiII k its Kurure poIicy, my Govern-
ment wilI be tlie firsi to try to obtain thc most flcxiblç Iems which wiIl
enabL the people of South West Africa to exei'cise the right of self-
determination iinder the watchfu1 sutservision
- a - - - uf the Uniled Natiotis."
(GA, OR, Scvcntccnth Sexq.. 1 128th I'lenary Meeting, 24 Scp. 1962,
pp- 77, 73.)
(i) !Mr. Cii~rmCuilcitio: ". . . his dclcyation c n d o r s ~ dthe action taken by

Liberia and Ethiopia in having iiii tiated resort to r hc international Couri
of Jirsticc, . . .
For the Mexican delcgatiun, thc qucstion of rcupvnsibility was the crux
ofthe matter. It fearcd that the countries with a Western civilization did
not rcalIy wish rn put an end to the intorerable situation in South West
Africa, where the inhabitanis livcd in conditions that were worse than
slavery. That situation was more dangrnus to Western civiIization ihan
Niiz~smbecause South Africa was appIying its inhuman policy undcr
cover of Christian ideals. Somcthing must 6 donc before Africa forgot
tht good that Christianity Iiad broiight it aiid remembcred only the
tortiircs carried out in the n n a m of Christianily by the Union of South
Africa."
(GA, OR, Fifteeiith Ses., Fourih Comm., IOh3rd Meeting, 24 Kov.
19G0, p. 374.)
Ciil 4fr. Cuevus Cunciito: ". . . t h c Charter of thc Unitcd Nations, aird
parlicularly Articles 73 and 75, provided a cIear formulation of its
approach ro Non-Self-GoverningTcIT~~oT~CS and the Trus~eeshipSystem.
The Union of South Africa had persistentIy infringed thc Charter. Three
WRIl.'I'li?i STATEMEST (IF SOUTH AFKICA 479
courses of action were opcn to [lie worId cornrnunity: judjcial action,
siich as had bccn taken by the Govemrncnts of Elhiopia and Liberia,
which deserveci the Cornittee's congratulations on thcir initiative;
direct action underraken hy thc Gcnerül Assernbly through the adoption
of resoluiians such :is those now berore the C o r n m i t t e : and indirect
action involving iiior.il influence and diplornaiic pressure. . . .
The conccrn exprrssed in the second preambirlar paragraph showed
that the whoie conccyit of the sacrecl trust had hccn violated by the Union
of South Africa."
[GA, OR, Fifteenth Ses., Fourth Comm., 1076r h Meeting, h I k c . 1960,
p. 456.)
(iii) Mr. Casraficda: ". . , his delcgation considcred the report of the Com-
rnittee on South Wect Africa (AJ4926)to be of exceptional imprirtancc,
kcaust: [lie rewnt action underiaken by that Committce represented the
gceatmt effort the United Nations could m k e io solve the problcm or
South West Africa with the voluntary co-opecatiun of rlie South African
Government. TIiat last attempt was the stipreme test, and thc dwision on
what shauld i x thç riirection of thc futtrrc ücrion of the United Vations
dcpcnded upon its olitcome. Unfortunately the resulrs had k e n enrire1y
negative. After so niany jicars of fruit1ess efforts, thc Comittec on
South West Africa lionsidered that rhe path prcviousIy foI1owed was
mmplctclq.closed antl it was remmn~cridinga radically different approach.
The realism, sincerity and couragc with which each rnernber wss prcparcd
to face the new situation would Iiave an inlportant influence on the future
of the Unitcd Satioris.
In geriera1 his delcgation endors& the conclusioris and recommen-
dations in the Comrnittcc's rcport. The Comrnittcc's basic recoininen-
dation was that thc Mandate entrustecl by the I ~ a g u eof Nations to the
Union of Soutli Afri,'a should be terininated, su ttüit the administration
of the Territory coiild he assunicd directly by the Unitcd Nalions for a
period o f timc with ri view io eventual indcpentlence. As the Committee
had not examined in dctail tlie prnblem of the IemI munds for revokiny
the Mandate, and as that wüs no duubt a question which would give
rise to snme dcbatc,lir: wished to givt his country's vienrson that subject.
P r c v i o i i s United Kations emorts on tlie question of Soiith Wes? Africa
had lieen confined 10 seeking thc fulfilrnent on the p a r t of the Soutli
Africlin C;overnment of its obligations iindcr the I ~ a g u eof Nations
Mandatc. Thc purpose of seeking an advisory opinion frorn the Inter-
iiational Court of Juslice in 1950 had bccn 10 dzierminc whcthcr South
ACrica was still bourid by lhe Mandate and whcther Chapter XII of the
Chartcr was appIica bIe to South West Africa. That had also been hasicü1Iy
the purpose of Gcni:ral Asenibly resolution 749 (VIII) sctting up tlie
Committee on Snuth Wcst Africa. Ever since thcn. the resoIut ions adoptcd
annually by the AssemIily had been bascd on the :issuniplion that South
West Africa was a Ièrritory with an international status and had been
ùesigned to secure th: cornpliance of the South African Cioveniment with
its obligations under lhe Mandate. Yct not one of those resolutions had
been heeded by the South Afric,m Governmcnt; in particutar i l had
ignored resoiiirions 1568 (XV)and 1596 ( X V ) . Hence there no longer
secmcd to bc any ri:al posqjbility that ttie South African Gouemment
would cornply with the terms of the Mandate. nur was there iiny indicalion
that it woiild subriiit reports an the situation in thc Territory or permit
petitioners to Icsvc if freeIy. I i was quitc clear that therc would be no
polit.ca1. econoinic or smial aducuiwrncnt for the people of the Territory
w long as the p r w n t régime contiiiued; thai \vas the Cornmittee's view,
expri:sxd in paragraph 160 of its report (Aj49261. .. .
in order to prove lhul thc Mandate #ver South West Africa shouId
be terminateci, it was first necessary io show that Soulh Africa had nui
fuliiIled its obIigations. There was no dificulty in ihat rcspcci; the case
subrriitted by Liberia and Ethiapia ta the International Court of Justi~t
gave a ruII accorint of the ntany instanca of South Africa's violation of
the fiilandate, and the debates in the General Asccmbly, year after year,
had con6rmed thc numeroils cases in which South Africa had not
cornplid wwith the terms of the Mandate and of the corresponding article
of thc League a v e n a n t . Not onIy had South Africir fsiiled to fulfil its
obligations to pronioie the weILbcing of the people, but, tiuough racial
segegation and the supprcssionof fundamental rightsand freedoms,it had
hmgered the marcrial and moral welfrirc of the people and prevented
their norniaI dcvclopmerit rowardv indcpendence. Contrary Io the obli-
gation imposed by ihc Mandate, i t only aIlowed persons of European
origk to vole or to be a candidate for eloction iri the Territory; it main-
tained a systcrn of racial segregation in eduntion; i l estabIishcd zones of
segregated reiidcncc; it refused to alIow memkrs of the aboriginal races
or tribes or Afriça to join irade unions; and it denied Africans the enrry
to niirnerous professions and activities. The law qualifieied somc workers
in thc Territory as 'servants' and their- employers as 'rnasters'; the
'serviints' werc subject to corporal punishrnent in case of a breach of their
laborir coniracl. Iti the towns the Native population had to Iive in certain
areas and there wtis a cornplicated system of pcrrnits and passes governing
their movements in the Territury. The indigenous inhabitants couId not
rent ccrtain lands in the Territory and it was forbidden for White peopIe ro
transfer such Iands to 'h'atives, Aaians or Coloured persom'. The
Govcmor-Geaeral had the right to remove any tribe or individual
African to another part of the Tcrritory. The indigenous inhabitants wtre
forbidden io belong to poIitical organizaiitions, under pain of crimina1
çançi ions.
The South African Governmcnt had aIso systematimIIy violattd
article 5 of the Mandate in refusing to subniit to the Genrral Asscrnbly
a r a 1 reports on conditions in the Territury, an obiigation which had
been confirmed by the 1950 advisory opinion of the InrernationaI Court of
Justice. Again, many laws of the Territory constituted ü violation of
article 7 of the Mandate, which prohibitcd any modification of the terms
of the Mandate without thc consent of the 1,eague of Nations. As wüs
indicated in paramph 156 o f the report of thc Cornmittee on South
West Africa (A/4926) the South African Government fiad faiIed tu
respect the Territory's international status in that ir had given the Eu-
ropean population represcntation in the South Alrican Parliamcnt, had
intcgrated the administration o l the entirc Native population with that or
South Africa and had incorporated South West African Native rMcrvc
iand into the South African Native Trust. LastIy, South Africa had
uiohted ariicle 4 of the Mandate by ençouragiw the Eurowan population
of the Tmritory to a m and by establishing rnililary fortificatiuns and
largc defence forces in the Territory."
(G.4, OR, Sixteenth Sess., Fourth Comm., 1226th Meeting, 28 Nov.
1961, PP. 436, 437.)
WRITTES STATEMEYT OF SOU1ï-i AFRICA 48 f
(jv) I W ~ .C14eva.r Coficinu: "The probIem was certainry one of special com-
plexity. In rhe frrst piace, South Africa had obiaincd its indcpcndcnce
from the Lnited Kinghm at a time whcn the only accepted standards of
civiiization had bwn E u r o p w and i t had mnsrqiiently continued the
doctrine of white süpn:macy. The United Nations was now faced with the
dificult tkqk of induci% South Africa ro canforrn to the principles of the
ncw era which had bccn ushered in by the United Nations Charter.. . .
The Govcmments of Liberia and Ethiupia deserved the Assembly's
tlianks for having çari'iedoiit some of its rccommendations."
(GA, OR, Seventccrith Scss., Fourih Comm., 1376th Meeting, 8 Nov.
1962, pp. 301 -302, 3O:i.l
"1 hav~:the honuur tu address jeu with rererence 1 O the commiiniquk issued
on 26 May by the Prime Ministcr and Ministcr o f Exiernal Affairs of the
Kepuhlic of South Africa. on the one hand, and the Chaiairan and Vice-
Chairmatt of thc Unitcd Nations SprciaI Cornmittee for South West Africa,
on the oi:hcr hand. In tiiis conntxion 1 wish 1 0 make plain, on the express
instructions of the Ministry of Foreign Affairs of Mexico, Ihe psirion of my
Govermient with rcspcct I O the aforementioncd communiqué, t his being
neccssary both oii account of the part played in thedrafting of thecrirnmuniyué
by Arnb=dor Salvador Martirie~de Alva in his capaciiy as Vicc-ChairmanOC
the Corninitrcc and on account of the subscqucnt i.cpercussions of tlie said
documeni .
In the Arst ptrice, the Government of Mexico had no prior knowledge that
the cornrriuniquk wax tr, be issucd, or, much less, of its contents. Indeed, it was
only througli the intcrmtknal press services r h t my Govtrnmmt first learned
of the cornrnuniqué in question. It should bc pointcd out in this conncsion that
thc custoinary procedure in such cases would have heen for the Cliairman and
Vice-Chairnian of the Cornmittee to have reported to the Iatter M o r e taking
iipon thernselves the rcsponsibiliiy of making a joint dcclaration with t hc South
African Gnvernmenr.
On the oiher hand, 1 would point ou1 that in my opinion due consideration
shoiild bc given the expianation oKcred by Arnbawdor lvlartinez de Alva in
this connexion. namely, that rvlien a representaive in a United Naiions organ or
conirnittee, acting in an cIcctive capxity, assumes the rule of an uificiaI or
represcnt;itive of t hat organ or cornmirtee, he nred no!, generally speaking,
receive instrticlions in that capaciiy rrum his Government, since he niust bc
guid~ulin his conduct enclusively by the mandate conferreci on him for ihai
purpose Iiy ihe body which eIecred him or authori~edhirn to act as its reprc-
sentative. This staterncnt is ihe mure tippIicabIe to the p ~ s r n çt o x swing that
under ihe icms of the repiy given by the Chairnian of tlie Spocial Cummittw for
Sour h Wcst Africa to the letier dated 1 1 April 1962 of the I'ermanent liepre-
sentaiive of the Republic of South Africa, ihc Chairmiin and Vice-CIiairnm
were to w t c r informally info a revicw of the marter a i issue Lict\vccn ihc United
Nations and tlie Soiitli African Gavernment.
Ir is clear rrom the foregoing that Ambsisudor Mutinez de Alva nevcr
thought that the communiqué should express the views of the Government of
Mexico, i i s inderd it ducs not.
Turning now to the actual contcnt of thc docunicnt undcr discussion, I wish
io statc t hat nei ther niy Goveriiment's tradit ionally rrnt i-colonialist position
nor its p<isitionon thc spccific case of South Wcsr Africa, have varied by une
iota. Thb. bcing so, i t is obvious ihat if it had b e n consulrcd on thc cuntcnts of
ihc comrnuniqtie the Mexican Government \+*ouldhave iiad to reservc its
position wiih rcgard io certain judgemenrs and opinions expressed in it,
especiall> t hose t hai niight he interpreted as ignoring or contradicting the
WR~TTI-vSTATEHENT OF SOUTII AFRICA 483
various resolutions adopte.3 on thc subjcct by LIie Generd Assembly and
supporteù by rny country's vole. Especially as this point was not dealt with in
the communiquk, 1fcel thai I. shouid take r l ~ i sopportunity to reafirtri [he well-
known position of the Government and pcoplc of hlexico, a pusilion absoIutely
opposcd to any form of racial discriiniiiation.
In view o f thc particiilar importance of tlie question, I should like, as Per-
manrnt Representa~ive of hrlexico io the Unitcd Nations, to rcafirrn my
tiovernn~cnt's d t ~ phith in thc ultirriate nbjectives of General Assernhly
resolution 1514 {XV) and its sincere desirc that the new Sratcs attaining
independcncc in exercise of the right of peoplcs t o xIf-detcmination should
du so in conditions cnsurinp thc poIiticoI, ccooornic and social advanuicement o f
their inhabitants. I t may be pertinent to recaIl that in purçuii of this policy thc
Mexican delegation in ihe Fourth Commiitee went sti far as to suggest, during
the sixlcent h r e y l a r session of the Gcncrsl Asscmbly, tliat the United Nations,
in its capaçity as successor to Ihe Ixayue of Nations, rnighl if necessary rcvokc
the mandate confcrrcd by Ih-, Latter on the Union of South Africa on the ground
that thc Governinent of Soiith Africa had no1 cumplied witk the obligatiuns it
had freely assumed in accoting the mandate, and that the administration of
Suuth West Africa niight in tliat event be assumed directly hy the United
Nations for thc pcriod required to prepare the lérritory for independence, the
objective contemplated in f ;encra1 As~crnblyresoIuiion 1702 (XVJ).
Having made Ihat clear, T should now Iike to inform you t hat my Guvernment
in resprinsc to thc request made to it by the SpeciaI Cornmittoc for South West
Afrim, has instiucted Amb:isçador Martincz de Alva io corne t o N e w York in
order to report IO the Cornmittee, in his capacity as its envoy,on what hc saw
and heard d u r i y thc visil Ile made in accordance with the mission the Com-
mittee Iiad entiusted to him. 1klicvc it fittiny tu point out that rny Government
maintains ifs confidence in i he integrity, gocd fiiith and serioiisncss of purpose
which Amhassador Sa1vaJc.r Martincz de Alva has consistently denionstrated
rhroughout t lie long ycairi tif his service.
With reference to the lerl:r sent lo );ou on IG June by Ambassador Victorio
Carpio, I am cncicrsing herewith a communication frum Ambassador Martincz
de Alva which he has asked to have circulatcd in the sanie way &q Anibassadnr
Carpio's lettcr. In rhis cornniunication, Ambasmior Mari incz de AIva explains
the circumstances in which the communique referred t» in the first paragraph
of this Ictter wns drafied and issued.
I would requmr yolr to have this letter circulatcd to al1 Menibcrs of the
United Nations.
(Sipiled) Luis PADII.I.XNe~vo".
(GA, OR, Seventeenth S-ss., Sup. No. 12 (A!5212}. Annex V, pp. 18-19.]
S A M I R I A (SOUTH WEST AFRICA)
Ilnfon aï Soviet Swiaiist Republics

PLENAKY
fi) Mr. Mororov: "The discussion on the qucsrion of South West Africa
tesifies tu grriwing raistance to the forces of imperialism. coloniaIism
and wcism by tlie overwhelming majority of States Members o f the United
Nations. T h e independence of the people of South West Africa is k i n g
ï~si!itsdby the s a m e forces of reaction and imperialism that are upholding
coIoniitlism in other parts of t hc world-the fores casrying out a m e d
aglprssion in South-East Asia and supporting aggression in the Near East.
It is known that in the plans of international irnperialism a particuIar
role is assigned to thc southern part of Africaepecially to South West
Affca. As has bcen pointed out here more tban oncc aIrcady, that may
be explained by the rich naturd1 resources of that country and a150 by its
strategic location.
Smth West Africa lias beco~nean important [in k in the chain of the
Iast bastions of coloniaIism. Having prmlaimçd thcir dcfiancc of the
dccisions of the United Nations, the South African racists have extendecl
to !;outh West Africa the rkgimc of rcprcssion and terror against the
indigenous popiihtion that prevaiiç in Pretoria. Thc South Wcst Africsin
paiiiiots who stand irp for Ihe Ijkration of rheir fatherland are subjecr to
savnge persecucuticin, arrcst and torture.
III the decisians of the Cornittee of 24 and in al1 progrcssivc world
opiriion, there is condemnation of the iIltgal arrests by the authorities
of South West Africa of dozens of fighters belonging to the South West
Afriçan peoples' organization who are stiIi in thc hands of thc policc
aiitlioritiesin Soiith West Africa.
III this connccf ion, thesoviet deIcgation vigorously supportsthe demand
put fornard by Africaii delegations for the urgeni consideration of ihe
question of c o n d m i n g the iIlegaI amest, deportarion and imminent re-
prisais against 37 frecdorn fighters and fightcrs for independence of Sou th
West Africa. It is essentiai that the General AsscrnbIy shoüId immc-
djately demand their rclcase.
We considcr further thar, on the basis of paragraph 2 of the draft
res~lutionwhich is k f o r e us in documetit AIL.536, thc Govcmmcnts of
the United Starcsand the United Kingdom must irnrnediately takeall neces-
sary steps tr> force the racist régime in I'retoria to discontinue the i1IegaI
trial, IO free and rcpatriatc thc 37 pütriots and freednm fighters,the fight-
ers for rationa1 independence, to their homeland in South West Africa.
Thc acts of Mirth African racists are a threat not only to the people
of South Wa;t Africa; they arc a thrclrt to other African ~op1e.s alsa.
For examplc, it is known that the police and troops of ihe South African
racist régime parrol thc frontiers of South West Africa with Angola and
Zambia. In thc policy OF repressing the national liberation movement,
the racists based theniseives on a cIosely knit systtm of rnililary bases
that are situated both in the RepubIic of South Africa itself and in South
West Africa. The higgest port of S w t h West Africa, Walfisch Ray, has
WRi'ïi Eti' STATEMEYT O F SO11TII AFRlCA 485
k e n ~raiisformedintc a naval base, biiilt with the assistance of the
Federal Republic of Ciermany. Incessant rnilitary construction is also
coing on at the air base situated in air important strdtegic region of Saut h
West Af'rica, Kaprivi Strip [sic]. which is adjamnt tn Zarnbia arid AriguIa.
Tt should be emphasizcd that this poIicy is k i n g pursued in close
contact with ihe Partliguese colonies and the racists of Salisbury. As
has alrwdy been noted in the course of the present discussion on South
West Africa, a policy aimed ai disrnernbcrinp thc Tcrritory of South
West Africa is being i:arried o n . In tliis connection, as is known, the
Sob?ct dclegalion suppl?rted the resolirtion adopted by the Commiitee of
24 oii 19 Sniie to whicfi ii reference has k e n made, rcaffirminy the terri-
toriaI inkegrity of Souih Wrjt Alrica and condemiiing measureç aimed
at changing the status of Ovarnboland.
We put the question: Whrit are the real reasuns for the lact that the
South African racistsarb: able faignorc thc dccisions of the Unitcd Nations?
Quite a bit ha? already been said here about this. Wc emphasize fhis
point that it has k e n clear for a long tirne now that the RepubIic of
South Africa could no! Iong resia ihe IawfuI demands of the Membcr
States of the United h';.tions rcfying un its own forces ahne. If, however,
rmistancc to thc dccisicns of the United Nations continues, tfiis has to be
explained priinürily by the active participation in thc racist policies by
the sa-called main piirtncrs of the RepubIic of Soutli Africa and thtxe
main partners arc primarily the Giiited States of America and thc United
Kingdom. The ruIing circIes of these couniries continue t a be guided by
the se1hI-i inlerets or a political, ocontimic, miIitary and strategic nature.
For this rcason, thcy cijntinue to give al1 kinds of assistance tu thc racist
régime Pretoria. That i:. why we wish to raise our vaice hcx most energet-
icalIy to protest again5.t attcmpts to pass over in siIence these obvious
facts. \Ve raise our voize and we s w k againçt attcmpts to confine our-
sclvcs to hints without deciçively demanding of thnse Members that are'
principally responsible ;or the tragcdy uf thc pcople of South West Afrim
that they change their criminal policy of direct and indirect support to
the sharneful régime of ~ h racists.
c
UnfortunüteIy, it must he noted that thc represeniatives of some
States that are the s i n c x friends of the people of South West Africa do
pass oixr thescfacts which establish the direct responsibility of the United
States of America and the United Kingdom and othcr Western Powers.
Yet it is ciear that th: Unitai States and a number of other Wcstcm
countrics, whilc proclairning in words their sympathy for the peopIe of
South West A f r i n ancl voting for a nurnber af dccisions takcn by the
United Nations, in reality and in Tact continue to sribordinate iheir
poiicies in regard to the racists from Pretoria to considerations of an
economic, niilitary anil strategic character and, on ihc &sis of these
IKdrrOW, selfish and intjxrialist considcrations continue in practice in
afl'ord broad assistana: and support to the racists of South Africa. In
raci, the unpr~edentetistatements and acts o f the Pretoria leaders in
their refusa[ to carry out the decisions o f thc United Nations are based
an this very support oli his policy.
A number or Westei-n Powers are cIosely bound up with the foreign
monopolies and thcir interests in maintaining South West Africa as a
colony. The international monopolies are exposing the population of
t his counlry to the most savage colonial expioitation througfi pIundering
its natuml rcsources aiid it is a fact which no one o n deny. Ttie very
and other modern wixpons. I n accord an^ with thcse plans for joint
research, in the same- montli therc was a return visit by the Federal
Hepublic or Germari>-to thc Zumeb Tsic] Rocket Base i i i South West
Arrica. I t was a visit Iiy 1he West C i c r m n spc~ialiston the rnaniiFacture
of missiIcs and ri mc:nribcr of ihe Neo-Nazi I>ai.ty, ü certain Hermann
Obert, who went tu f.liniiiarize hirnself with the work on ihe rwo-stage
rockct, Harp-3 . . .
M'lien wc were coniidcring the quesiion of South Wesr Africa at'thc
fifth special session 01' ih e Cieneral Assembiy, the Soviet dclcgativn had
an opportunity 10 esplain the position of the Sovict L'nion as regards
ways of solving the problem of South Wcsi Africa. The Soviet Iln~on's
position is based on a.n unchanging traditional policy which is airned at
giving cornprchensive support ro peopIes fighting for their freedorn and
independence. II is a a pnlicy aimcd at uvercoiniiig the resistance of
t l ~ ciimperialisi and co1onial Powers to the prmss of liquidatinp thc
remnants of co[onialism.
In accordance with this policy, we support-and havc supported-
the Afr@Asian Sratez in thcir cn'orfs aimed at Iiberating the p ~ o p l cof
Sotith West Africa from tlic coloniai and racist ynke and of giving the
pcopki of' South tir'e~tAfrica the newssary assistance in creating a fi-ee
and independerit SIatc.
We considcr, as iw ~Iii~ays have, that ror the atrainmcnt of this purpose
the Gcneral AssembI:, rnust, first of al!, ovçrcome the resisrance being
sl-iown by the ruliiig c irclus irt tlie United States of Amrricd, thc United
Kingdnm and thc Fcderal Repubtiç of Germany, and a number of other
LVcstcrn Powrs. We asserl thar the güarüntw or unintpeded and inde-
oendent devclo~mentfor the ~ c o d or c South West Afriw-and the only
guarantee of sich dt v e ~ o ~ m ~ n t ~ w obeu lIhe d imrnediate granting of
indcucndenct. and th(: handina over of ~ ~ v io c rcpresentatives
r of the
indjgenous populatioii. T'hc cxpcricncc ÔI the l i b e r a h stniggle of thc
younp States of Asia. Africa and latin Amcricri convinws us lhat ii is
only rhe handing ovcï of administration io representatives of the people
that can ensure the rising and the construction of a new Siate. We
considcr, and we would likc tu stress, that no palliatives can l a d tu ihe
necessary results. Events which have occurred in the period which has
clnpscd since rhe adopriun or the mast rewnt Unitcd Nations dwisions
on West Africa have shown. a s thc rcpresentativcs *ho have spokcn
before me, particularly tfiose fronl Asiri and Africa, haire pointed
oui, whai liiile grourrds there are for placing any hopc or trust in the
forces of racism in l'retoria. ln thc penod wliich bas paqsed sincc the
adoprion of those m a t recent United Nations decisions the vieivpoint of
thc Sovict Uriion and a number oi' other socialist countries has k e n
vindicated. Thai vievrpoint is that it is essential to dernand dccisivcly
of the Kepublic of Swilh Africa that it shoiilù immediatcly and uncoiidi-
t ionülly cliniinate the wholc or its niilitary and policc apparat us illegally
inaintained on ihc Territory of South West Africii, to demand t h e
liberaiion of poli ricat prisoiiers and to dcnland the creatiun of conditions
for rcpatriation of th: fighrcrs for freedam and independence of South
West Africa."
( E N doc. AjI'V.IS;:? (I?Dec. 19671, pp. 82-87,91-92, 93-96.}
(ii) Afr. Morozoy: "ln O u r staternent in the general dcbate on the qiiestion
under coiisidcration we already indicated (hat we fully supportcd the
draft resolution in dxunient AjL.536, and in this sltttenient for the
purjim of cxpbining our vote ri= shvuld Iike to makc certain remarks
and tu bring out certain considerations coi-~cerningLhe draft resolut ion
iiow berore us, subniitted by a large nuniber of countries from Asia and
Ariica IAiL.540).
Ir. Our ripinion, ii would bc appropriate to make ihc folIowing remarks
in ciirinexion with our vote and Our position on this draft resolution.
Ic the course of the gcncral debate on thÏs question the Svvict Union
had the opportunity of çtatinç its pvint vf vicw as to thc rasons why lht:
peopIc of South West Africa arc still sufferiiig under the yoke of colo-
nialism. We ~ a i dthat it was our deep conviction that ihc only effective
solution of the question of South West Africa wx irnnlediate accession
to irtdependencr: for the pcople of rhat country, rather than the cieation
of any kind of administration for ~ h eTcrritory by the Unired Nations.
WC wish to cotifirm our position on this matter, whicb position was
statcd in the coursc of the fifth speciaI s w i o n of the General Assembly.
Oxr opinion in connexion wirh the establishiirentof ihe United Nations
Cwncil for South Wcst Africa has not chnged. and in this conncxian \ile
woufd rsaI1 the reservations which fiow from that position coiicerning
opcrlrtive pwagraphs 1, I and 3 in diafi resolution AjL.540. WChave, in
addition, furthcr rcservationson other parts of the draft rcsolution regard-
i ng rhc United Nations Council for South Wesr Africa.
W e note with plwui-e that the draft rcsulution canrains provisioiis
which couId contribute to bringing an cnd to the colonial domination by
the i-a~istrégime of Pretoria, which has k e n extended by tliat Govcrn-
m n t to a Territory which does nor beluny to it, the Territory of South
West Africa. It is with rhis in mind that we have taken note of paragraplis 3
and 4 of draft riisolution AIL.540. 'I'hese paragraphs condenin the racist
Government of South Africa for its rcfusal to comply with the resolutions
of the Gcncrsl Assembly, sincc that refusal infringes on ihe international
sratrrs of the Tcrritory o f South West Arrica.
I'ziragraph 5 is usefut in thtit it =Ils u p n rhe Ciovernment of Pretoria
io withdraw unconditionalty and without drlay frvm the Territory of
Sou1h West Africa al! its miIitnry and police forces as wcIt as its adminis-
traiix, and caIls upun i t to release al1 polilieal prisoners and to allow aIl
political refugecs who are nativcu of the Territory to return to it. This
prot'isjon m n i s to us to bc fundamental since irn end to the persectrtion
of Suuth West Afrimn natirinalists would make it possibte for thern lo
crcate those conditions which would prcparc the Terriiory OF Surith West
Africa for accession to independence and woiild etiabIe it to free itselr
from the coloiiial yokc.
LVe believe that paragrriph 6 ~ v n t a i n sprovisions which are timeIy and
welI warrantcd since ttiey rwognizc that the rracist réginic in South Africa
continues to benefit from the resolute resisrance on the part of several
countries-espccially the United Statcs. the United Kingdorn and the
Fedcral Rcpublic of Gerrnarry, whiclt support the rkgirnc by rnaintaining
commercial, economic and poliiical relation$ with thar country and have
no wish to lose their strategic position in South Africa. thus causing rhc
failure of aIl attempts to bring South West Africa to indepcndcncc.
Tlte Soviet Union bclieves that the United Nations should take such
steps, which arc aimed particularly at thc Unitcd States, the Unileci
Kingdom and the FederaI Republic of Oemany, which in fact arc thc
main trading partners of Snuth Afriw. We hope that rhose coiintries
will thus put an end to their policy of siipport for the racist regilne of
Pretoria, and that, as provided in opcrativc partigrapit 6 of draft resolu-
tion A/1,.540, thes wiIl 'iakc effectilVe~oiiornicand othcr measiires
designcd tu cnsurt: the irmi~cdiaie ~vithàritwalof the Souih Africa adminis-
tration from the Territory of South Wesi Africa', whjch is vital, as we
have alreaùy had occiision to statc, if we really want the people of that
Terri tnry to acwde to indcpcndence."
(UNdoc. AJPV. 1635 ( 16 Uec. 19671, pp. 92-96.)
CHAPTER V
TIII: \'AI.IDI'rY AND LECAL EFFECT OF SECURITY CUL-NCII.

RESOLCTIO'I 276 (1970)
1. It w.1~iriaintained in Chapier III above that Security Council resuIution

'
275 (1970) ivas inllzIjd and without Icgal eKcct by reüson of certain formal
defects. Tii the piewnt Chapter i t wi Il be submitted that even if i t he afsumed
that the resolution iri quesiion i s furiiruIiy vat id, i i is nevert heless noi in~ritisirt~C[v
vnlid and is rhus of no IcgüI consequence and, aIternativcIy, that cven if it bt.
b t h formaIIy and intrinsically valid, i t has na hinding consequenccs for
States. In this coiinectiori three niairi subrriissions \x~ill be made, the nature of
each nf which will now be briefiy s e r out.
2. In thc first place. it wilI he suhmitted that rwoIution 276 (1970) is invalid
and void of any l e g l conswuences Tor States becarise it is bsed upan and,
indeed, has as iis very roison d'ë~rcthe decision uf the General AssembIy in
lhc fourf h opcriitivc paragraph of its resolution 2145 (XXT)-and that d ~ ~ i s i o n .
as will be sliown in Chapters V I to XI. iirfuz, is ilseif invaIid and void of any
legai conîeqiience. For this rcason alone, rcsolution 275 (1970) and orher
cognütc rcsolutions of the Securi ty Council are intrinsically invalid and can
liaire no legal etrect.
3. In the second place, even assuming resolution 2145 (XXI) to Ise vaIid, il
will bc siibmitted that resolulion 276 (1970) was not adopted in conformity
with the provisions of thc Chartcr and that it was lhcrcfvre rtlrru virvs the
Sccuri ty C:ounciI.
In this wnnection it has aIready been shown that the powers of the Security
Council. Iikc ihosc of other organs of thc Unitcd Narions, are derived ex-
çlusivcly frrom tlie provisions of the Cliartei and are lirnited by them ?. Accord-
ingly, in order ro csiablish whethcr thc Council in adopting resolution 276
(1970) and rclaied resalutÏons acted in canformity with thc provisiuns of the
Charter, i t will have io be ascertained under which of those provisions it
purporred to ad. Since ihc tcrms of r hc resoli~tions themselves provide no
CIMT unswcr, it wiIl he necessary to determine the müttcr in ihc light or al1 the
availablc euidence.
Various chapttrs o f rhe Charter have a bearing on the powers and funclions
of the Council. They are Chapters 1, II, V, V I , VLI, VILI'. XII, X I V aiid X V .
It is submittcd, however, tlint in tlie coi~textof the question upon which the
Court is IIOW asked to advise, iht only chapters which can mnccivably bc of
any relevance arc Chaptcr V (in so Far as it dciils wi!h the fuiictions and powcfi
of Ihe Council), Chapter V l (riesling witli the pacifiç wrtIement of disputes)
and Chapter VIT(dea1ing with action rvith respect to thrlats to thc pcacc. ctc.)
- as read wiih Chaplcr I [sctting out thc Purposes and Piinciples of the Unircd
Nat ions}.
-
For the sake of cunveiiience ihis resoluiion i s r e p r o d u ~ das an annex to this

Chapiçr.
?
I'ide (:hap. III. paras. 4-5..supi-(7.
I t wiIl be shown. howcver, that in aduptiiig the relevant resolutinns the
S ~ u r i t )Council
: did no! 3ci in terins of Chapter VII, that Chaptcr V provides
no scparate tiasis for ihc ar:tion of the CounciI and that the C'ouncil did not
cornply with the requiremerits of Chapicr VI. Tlie conctusion wilI accordingly
bc Jraivn that the action oi the Couiicil in adopring the releuiint rescilutions
cürinot he jiisrified by rcfererice to any pi.ovisionof the Charter and i s therefore
rrhra vires and of no legal ctfect.
4. In the third and last 17liic?c, it will be demonstrared that cven assurning
the validity of r m l u i i o n 276 (1970). its terins bave nu legatly binding cowc-
quences for States Iiut are ü~itte musi recotniiieiidatory in their effect.
5. The.re vario~isconteniions wilI be treated of III separatc seciions of this
Chaprer. The section irrinitdiatzly follnwing (section A; will bc devored tu
demonstrating ihat resolution 276 (1970) is hsed squarely upon Gcneral
AsscmIily 1-esoIuriort 2145 IXXI). 'I'herreer Chapters VII, V and VI or the
Charter wilt he dcalt wiih separately and .&riaritir ( i i i ~xcriolc.~ C, D ufzd E
respe~ti~cly) in order t o detc rmine whcihcr and in Iiow Par they may 'ne rclcvant
to the question &fore the Court. Finally, irpon ttie assurnption ~ h a tresoluiinn
176 (1970) waq validly adopted. consideration wilI bc given (in section F ) io its
legal cansequcnccs. ifaiiy, lor States.
H. '1- Busis for the Adoptlari of Semrity CouiiciI
Resolution 276 (1970)
5. The adoption by the Security Council of resnlutivn 275 (1970)wwas hut

one step in a chain ofcvcriis which comrnenccü on 27 October 1966 with thc
adciplion by ihe General A!.wrnbly uf its resolution 2145 &XI) '. In opcrative
paragraph 4 OF lhat resoiution the Assmbly piirporicd tu decide-
". . . thai ihe Mandate ç o n f c r ~ dupon His Britamic Majesty lo be
exercised on his behaIf-hy the Government of the Lnion of Soutli Africa
is therefnre rerrninaird. that Sciiith Africa has no othei right to adniinister
thc Tcrritory aiid thai henccforth South West AMca cornes undcr the
direct rcsponsibility of thc Uiiited Nations".
It is clear that i t was this "decision" of thc .4ssentbly which gave rise to and
constiiutcd ihe basis of atI the various sribwquent resoliitjnns, both of the
Assenibly and of the C:ouncil, which arc rclevanr to thc prrsent question and
which on 30 January 1970 criliniriated in Sccurity CounciI resolution 776 (1970).
As will now be shown, this appears not only from the terrns of thc resolutions
theinselves but frotn t hc dcebiites and correspondcnce which prcwdcd thcir
adoption.
7. In its resolution 2145 (XXO the Assembly, having dccided tu terminate
tlie Mandate and pIacc S o i i ~ h%'est Afrim "undcr the direct responsibility ur
the llnitcd Nations". resolved that "in ihcse ciicu~nstancethe llnitcd Nations
must dischargc those resporisibilities with resptct ro South West Afi-ira and
called "the attention of tlic Sectirity Council to the present resolution $".
Diiring the periud 27 Dctoxr 1966 (whcn il adopted resdulion 2145 (XXU)
, to 30 knunry 1970 (when tlie Seciirily Council adopted resoliition 176 (1970)),
d rerrtllrd resoli~itriun2145 { X X I ) in al l but
the Assembly express1y r c ~ ~ y i r t i ior
- -
- Quoied in full in Chup. ' J I , para. 1 , irrfia.
? Operative para. S.
Operativc para. 8.
492 NAMIBIA (SCIIITH WEST AFRICA)
onc of its rrsolutions dealing wilh the question of South West Afnu In '.
resolutioii 2248 (S-V) i l decidcd to estahIish a United Nations Council foi
South We:;l Afriçü ivith wide powers of administration and legidation over ihe
Tcrritory :: and requested the Securily Council"to tnke al1 appropriale mcasures
to enabIe the United Nations CnunciI for South West Africd to discharge the
funçtions and responsibilities entruslcd to it hy the CeneraI AçsembIy 3".
Thereaftet, in resolutions 2325 (XXII)', 2372 (XXII) 3, 2403 (XXitU 6 , 2498
(XXXV) -2nd2517 (XXIV) B, the Assernbly dreir the artenrion of the Security
CounciI tci the situation in South West Africü andlar recn~nmrnd~ipd that the
CounciI take effectivemasures to implerntnt the various resolutiuns conaerned
and to secure the withdrawal of South Africa [rom the Territory. 'ïwo typical
exampIes of thesc calls upoii the Council arc the following :
"The General Assenzb!y,
. . . . . . . . . . . . . . . . . . . . . . . . .
3. DecidPs ta draw rhe attention of the-Becurity CounciI to thc sscrious
situation which has arisen as a result of Ihe illegal preseitce and actions
of thc Govenunent of South Africa in Namibia;
4. Rerom#iends the Sccurity Corincil urgently to takt tilI cffcctive
ineasrires, in accordance with the relevanr provisions of the Charter of
the United Nations, to ensure ihc irnmcdiate withdrawal of South African
a u t h o r i t i ~from Namibia so as to enable Naniibia to attain indcpendence
iti uccurduttce wi!li the provisions of resofutioris 1514 ( XV ) and 2145
(XXO 9." (ltalics added to last phrase.)
"The Genrrai Assembly,
. . . . . . . . . . . . . . . . . . . . . . . . .
4. 13raw.r the utteiitiun of thc Stxurity Council to the n e d For taking
appropriate measures in accordance with thc relevant provisions of the
Charter to soIve the g a v e situation that has arisen us u resdt of Soufli
Afrira's refirsuf fo wifhdraw i t s administration from Namibia 'O.'' (Italics
added to Iast phrase.)
The icrrns of a11 rhe AssembIy resoIutions concerned thus l a v e no rooiii for
doubt that the General Asscmbly, having decided to terminale the Mandate
and ta place South West Africa under United Nations raponsibility, thereafter
VÎdc G A raoluiions 2248 (S-Y), 19 May 1967, in GA, O R , Fifih Special Sess.,
Sup. No. 1 (A/6657),pp. 1-2; 2324 (XXII), 16 Dec. 1967; 2325 (XXlI), 16 nec.
1967, in GA, OR, Twenly-srmnd Scss.. Sup. Ko. 16 (Ai67 161, pp. 3-4; 2372 (XXII),
12 June 19I;R. in G A . OR,Twenty-xcond Sc5s.. Sup. No. 16 (A!67I 6!Add. 1). pp.
1-2;2403 (XXIII), 16 Dec. 1968, in GA, OR,?Wcniy-rhird Scss., Sup. No. 18 (Ai721 8).
p. 3 and 2517 (XXLV), 1 Dec. 1969, in GA, O R ,Twenty-fourth Sess., Sup. No. 30
(A!763V}, p. 68.
Soc. 11. para. 1.
Sec. l V , para. 5.
' Operativc para. 7.
' Operative para. 13.
Operative paras. 3 and 4.
Operative para. 3, in GA. OR, Twenty-friurth Sess., Sup. No. 30 (Ai76301, pp.
65-66.
A Operative para. 4.
GA rcsolution 2403 (XXIII), 16 Dec. 1968, in G A , O R , Twenty-third Sess.,
Sup. No. 18 (Aj7218). p. 3.
'O G A rcsolution 251 7 (XXTV), 1 Ucc. 1969. in GA, OR, Twcnty-fourth Scss.,
Sup. No. 30 (Aj7630), p. 58,
WRITTW SI-EiTkMENT OF SOUTH AFRICA 493-
continued to act throughout on the b a i s tif ihai decision, and rhat, not irself
having any pervers of enfnrcment under the Charter, it tiirncd tu thc k u r i t y
CounciI to takc stcps to irnplement rho: decision.
8. It is q u a I l y cIear that i t was in fact upon the basis of thal decision, and
not independenily of it, rhat thc matter =nie before the Security Council.
Thus, for examplc, in United Nations document Si8307 dated 20 Decem ber
',
1967 thcsecretary-fienerai iransmitted to thc Prcsjdent of the Seçurity Coiincil
the tex: of General AssernbIy rcwlution 2325 (XXW and dretv attention to
operative piiragraphs 7 and 8, in which the AssenibIy requested the Council
to takc cffcciivç steps to enahle the United Nations to lulfil the responsibiiities
i t had assuma! with respci:t l o South West Africa. The "responsibilitirs"
referred to are clcarly those envisaged in operative paragraph 4 or Asçernbly
resolution 2145 (XXI) 2,
"
Siniilarly, in a [elter d a t d 14 March 1969 addressed tu thc Prcsideni
of the Security Council, 46 rnernber States requested an urgent meeting of the
C:ouncil to exariiine "the rieterioi'aring situation in Kam~bia". The lerter
con t iiiued :
"Your Exccllcncy anci the hlembers o f the Sccurity CounciI wiIl recaIl
that the GeneraI Asscnibly, hjj ils resoI11tiun 2145 {XXZ) of 27 Oczoher
1966, icrnritiared the Mniickzle vf the Sorifh Africori Goveriinic~~r
tu ariininisrer
!\ruinibin (South Wcst Iifricü), and decided that 'hcnccfnrth South West
Africa wtnes under the direct responsibility of the United Nations'."
f ftaiics adiled.)
The letter added t hat thc South African Gouernmeni, in spite of the Gcneral
Asse~ibl~v aiirl Security Cuuncil decisioiis, had çontinued t o maintai n i t s occu-
pation of Sourh West Africa. thus constituting "ü grave threat tu internariona[
peace and security".
Thcsc exurnpIes are typitz.1 of many 0 t h communications 10 the k u r i t y
Council conccrning the qut:stion of South West Africa which il rvould be
tedious and unncccssary t o detail. Thay serve the purposc, hoivever, of showing
thai the b a i s of the apprciaches to the Council was in fart the decision of the
General Assembly in resoIuiion 2I45 (XXI) to terminate the Mandate and
to substitute the rcsponsibility of the United Nations for that ofSouth Africa.
9. That decision also conctituted the basis kir the %tual measures takcn by
the Security Coiincil. Refercnce to its relevant resoliitions m d the dehates
preredjng thern shows this dearIy.
Resolution 2M (1969) wes the fint in which the Council addrcvsed itseIf
pcrtinently to the question c.f South Africa's "çontintied occupation of Nami-
bia'"' as such. Thc first ( v i t ) prcambuIar paragraphs of that resolution iook
tiote of General AsseinbIy n:solurions 2248 (S-V), 2324 (XX II), 2325 (XXII),
2312 (XXLf) m d 2403 (XXIII), and look ifrio occuu~tAssembly resoIution
2145 {XXI) "by which the Cr5ncral Assembly or thc Uniied Nations terminated
the Mandate of South Wesi Africa and assurned direct rcsponsibility for the
territory unfil its independericc".
-- .-
' SC, OR. Tweniy-second Year, Sup. for Oçt~iber-Deccmber, 1967, p. 325.
: Vide preatnlrutar para. 3 {if G A resolution 2325 (XXII).
'U N doc. S/909û (14 Mar. 1969). i n SC, OR, Tiuenty-fourrh Ycar. Sup. cor
Jatiuary-Mnrch, 1969, pp. 126-i27.
' SC resoliition 264 (1969). preainbular para. 5. in U N doç. S!RES!769. 20
Mar. 1969.
494 NAMIBIA (SOUTH WEST A ~ I C A )
The operative paragraphs of ihr rcsoIuiion. bcsidcs cundemning the refusa1

of South Africa to cornply with the General Assernbly cesuluiions jus1 rncn-
tioned, dh2monsrrate the uncrit id acceptance by the Security Council of tlie
validity of AssenibIy rcsolution 2145 (XXI)and thc füct that that resolution
was the foundation upon which the subsequent action of the Council rcstcd.
The first r:hreeoperative paragraphs of resofution 254 (1969) i-ead as follows:
"1Yie Sccurity Crmricif,
. . . . . . . . . . . . . . . . . . . . . . . . .
1. Rrcognizes thal ihc Unitcd Nations General Assembl y terminated
the Mandate of South Africa over Narnibia and assurncd diroct rcsponsi-
bilirg for the territory iintil ifs indepcndencc;
2. Considers that thc continued presence of South Africa in Narnihia
is iIlr:gal and contrary t o the principles of the Charter and thc previous
decisions o f the United Nations and is detrimental ta the interests of tlie
popdation uf thc tcrritury and those of the international cornrnunjty;
3. Cal1.7 iiipon the Governnient of South Africa t o irnmcdiately withdraw
itr, administration from the terriiory."
The CouiiciI cuntinutd by. inter dia, inijiring a11 States to cxért their influence
in ordcr to obtain cornplirince by South Africa "witli the provisions tif thc
present rcsoliition "' and ~lccidiwthat in the event of Soulh Africa's fciilure to
cornply tl~crcwithit would meet again "to determine upon nccessary stcps or
measures" in accordance with thc Chartcr 2.
10. Th,: CounçiI's inviration to other States to use their ir~fluenceto seciire
South Africa's cornpliance with the resolution, like its recommendations to
"ail States" in its subsequenr rcsoIutions 269 (1959) and 776 (1970) 4 , was
obviuusl y designcd primarily to secure Soutli Africa's immediate wi thdrawal
frrirn South West Africri in lerms of crperalive paragraph 3 of remlution 764
( 1 969). Thal wit~idrawal,howcvcr, could only h ùcrnandcd if South Africa's
presrnce in the Territory was in fact iIIegal as postuIated in operaiive paragapli
2 of the resoIutinn. And, in tum, that presence could not he illcyal unless rhe
Mandate had in fact k n tcrrmilinted as postulatcd in opcrative paragraph 1
uf the rcsuIution. Ir v.411 be seen thecefore that the actinii taken by ~ h Securi~y
e
CaunciI was based entirely iipon the decision of lhe Gencral Assen~bly in
resolutioi~2145 (XXC) to ierniinatc thc Mandatc and tu place South West
Africa ünder the responsibility of the United Yations. F h e fuither considera-
lion thüt thc action of the C'ounciI could not have legal effect unless the Man-
date wa:: i.u/idy terminated by thc AsscrnbIy is dcalt wiih dsewhere the point
made here is sirnply that the action of the Council did in fact resi upon Assenibl y
rcsoIutioii 2145 (XXT).)
I I . In its resolution 269 (1959) ihc Scçurity CounciI rrcr~IIedand r~afiri?lrd
ils resolution 264 (1954) ', condcinncd South Africa Tor jts refusa[ t o comply
'",
with it and for its "persistent defiance o f the aiithority of the United ~ a t i o n s
recnfini:ed the illegality or ihc prcscncc of South Airican authoritics in thc
Opcrattvc para. 7.
Operative para. S.
Vide upcrative para. 7 SC rcscilution 269 (1969')) in U N doç. S/RESj269.
12 Aug. 1969.
Vide opcrativc paras, 5 and 7.
' Prcanibular para. 1 and operative para. 1 .
Opetüliue nard. 1.
~ ~STATEMEYT
. ' OF I SOUTtl AFRICA 495
Territory ' and cali~cltrpvt~;muth Africa to withdraw its administration of the
'lèrrilory '.
In iesolut ion 276 (1 970) the Coiincil recifrirmrd General AssembIy rcwlution
2145 (XX 1) and its own resotiition 264 (1969) "which recognizcd thc termination
of the mandate and called ripon the Ciovcrnmcni of Soirth Africa immediately
to withdraw from the territory". and recalIed its resolutiori 269 (1969) It '.
ayain cnndetun~(fSouih Africa's rcfiisal tn mrnply with "Gcncrül Assembly
and Sccurity CounciI resoi?itianspcrtüining 10 Kai~iihia4 " and dedurerf the
continwd prmence of South Afriwn authoritics in South \lest Africii illegal
"and that conscqucnt Iy oll acrs rakcn by the C'lo\rcrnnicnt of South Africa on
bchülf of or concerning Namihia clfier the leri7iinrr/ion ofrke Alaiidair are illegaI
and invalid 5". (rtalics add.i.d).
~ i thai, Iikt resolurion 2CA (1969), bot h resoIutions
II is apparent f ~ # ilii:;
269 (1969) and 276 (I9?01 were ultiniaicly baxd entiiely upon GeneraI
AssembIy resolution 2 145 (:<XI).
12. The debatcs prectding the adoption of these varioirs r~-jolritionsuf ihe
Sccurity CounciI reveal that in the rninds of ihe tnenikrs of the Çouncil the
resolut ions wcre indissolubl~iIinked wi th resotution 2145 (XXI). Sonic cxan~ples
wiIl be adduced in iIlustrsiii~n.
(a) Thc dehur~sitrruirniiinx rlie arloprioii of Srcztrify Cülr~cilrrsulitrioii 264 (1969)
Thc rcpresentative of Alperia starcd thüt ~he:

". . . United Nations h s put an end ro the Mandate of South Africa over
Namibia. We [i.e., the ,kiemhers of thc Sccurity Council] are today in duty
hound to accept the cotisçquences of fhnr iiccisiorr and consider thc praciical
iiiezqures that mus! be takcn to shoirlder aur responsibil~iy. , . wc mus1
rcüci by dernanding thi: withdrarvük of iht: South African authorities From
Namibia ?''(r~talics added).
So far as thc dclegation of Nepal was concerned,
". . . rt h s always reniained our contention fhat the possibilitres of rhe
Security CuunciI . . . slinuld be utili7ed with a rien: to givitzg eflccr ru ~ h t :
Grtirrril Asscrnhty's Iiisi oric r~soCir!iuiz2/45 ( X X I J . . .
Kcarty as important as this fuiidainental resolution if resofution 2248
(S-Y). . .
Cnder tlie presenr draft rcsuluticin, the Security Council would sjgni-
ficanlly, for thc first tirne in its hislow. rrinforre rhe hisroric Getzeral
Assenihlj rrcdulion 2 145 ( X X I ) hy recof n i z i ~ gthe !errt~incrrivn of the
~Mriiiritrreand the asslvnprion by rlie Qrguiiization of dimi rt+spot~st+bi!it~v
for the Territory until its independence "'"Olics added.)
According to t h e representative of Finland, thestarting point of thc Council-
". . + rnusl, of course, be recogtiition of r C ~ efoc: tlwr rhe U~iredNatioris
Operative para. 4.
Operative para. 5.
Preambiilar riarap. 2, 3 and 5.
Wperativz para. 1 .
Operative para. 2.
tJN dw. SPV. 1454 (20 Mar. 1969). p. t 6.
Ibid., p. 41.
Ibicl.. p. 46.
Gcncrol A ssei>ihlyha.?ferminuied the Mundare of Sourlt AJricu oser rVut~iibiu
anri assumeil direct resgonsibiliîy for rire Territory unt il it s inde pendence.
Ado,~tionby the Security Council of a remlut ion expressing such recogni-
.
tion . . will mean that for the first tirne the authority and iht: powcr
of the k u r i t y Council will tse fully engaged in the task of ~rc~t~slnriftg
r h a ~decisiorr into reality '."(Italics added.)
In the view of the repcesentative of Paraguay, a protiouncernenl by thc
Councif t-ecognizirig rhc actioti of the Ceneral AssembIy (in termina t ing the
Mandate and assuming direct respoiisibility for South M'est Africa) was-
". . .busic cznd esse~i#ialiri the case hefore US for ~ h euüititmre conridera~îon
of jirrih~rstepii or mensures which rhtr Couricil mifhi inke in the exercise
of itc powers and functions . . . in ordcr ta enable the Namibian pcoplc
t o kcotrie masters of thcir own natinnaI destiny 2". (Italics added.)
f b) I3e di haie surroundiny ire ndopiion of S ~ ~ u r iCorincil
ly resulrrtioii 269 (i%9)
The reliresentativc of Paraguay saw the recognition by the Securiry Critincil

of Asserribly cesaluticin 2145 (XXI) as the juiidical basis of rhc Councii's
action in regard to South West Afrim. H e said:
"7-here can be no doubt that the major importanec of rcsoItition 754
ci 96!i) of the Council lies in the express rccognitioa of the { . c l ihut
Gcncral Assenlli/y hw ferniinnted IIZC Afurndute . . . and t h 1 the Uniteci
Nations has assitrned direct responsibility for the Territory until irs
hnvc n juridicui busis
indejicndcncc. The ofhtr prot'isinm of rhni rcsol~<irliori
in t h z f recngnifioir"." (Italics iiddcd.)
The representarive of France stated that his dclcgatiun-
".. .has had to express ccrtain rcscrvations with respect, particuIarly, tu
r~sniiliimi2/45 (l'Xi), which in our vie-w has a very weak jtrridicni basi.7,
and wkch it was very cIear cciuld not be implemented in practice. . . .
In ihosc condifioirs the Ercnçh delegaiion hud tlo ubsrain .from rkc vote
on re.qnfutiwn 264 (1969) on 20 Match 1969 f."(Ittilics addcd.)
The repsesentaiiue of Spain stated that-

". . . resolution 264 (1969)declares tliat the 'presence of Svuth Africa in
Namibia is iIIcgaI and mntrary to the principles of the Charter'. Airy
~ i r i pthat Sol~fh
Afiric*~mkht have heid ovet ihe Terrirnry expired U I fht!
?noment when ihu GrneraI dsseinbfy by rcsoiutian 2145 ! X X f ) of27 Ocfober
1966: rfecfured rlie ~Wandarermninuf~dand dccided that the Territ ory
wouId becorne a direct rtxponsibility of the LJnited Nations.
In resolution 269 (I 969), adopted on 11 August 1969, tfic kcurity
Couricil took a further step forward . ..S" (ItaIics added.)
UN d o ~ SIPV.
. 1465 (20Mar. I96Y), p. 27.
Ibid., PD. 47-48.
U N dw. SjPY. 1495 <8Aug. 19691, p. 7.
Jbid., p. 17.
U N doc. S;TV. 1528 (29 Jan. 19701, pp. 63-65.
Acwrdiiig tu the represerrta~iueof Poland, the-
". . . political and l ~ g a lîramework for the United Nations action an
Namibia has been pri:ciseIy drawn. Its comerstone is rewIution 1514
.. . Its foundaiio~ii.r coniained [ri reso!utiorr 2/45 (XX!) terminaring
rhr Munduie of the Re,~Ub/icof Suu1.h Africa over South WE.\.!d f r i c ~now
,
Aruinibin '."(Italics adikd.)
For the reprcsentative of the United Kingdom, the br~sisof the draft resolu-
tion Iay in the earlier reIevz.nt resotuiions, incfi~diag2145 ( X X O . He said:
". . . we have abstainr:d on a numbcr of resoIuiions, notabIy GeneraI
Assembly resalution 2 145 (XXI) of 27 October 1966, Security Council
rcsolution 26.4 j41t')69 iind Socurit~Council t*esolution269 (1969).
It will tticrefore conte as na surprise to the rncrnbers of this Council
that ive cannot on t h i ~occasion give our support to the ùraft rresoiution
befure us, sitlcc the h ~ s i sof thut re~ofutionlies of rorirse in fhuse mr&r
rtisofzrrioi~s. . . malia added.)
13. Of s p i a l significancc is ihc fact that at no time during the coune of
thcsc dcbstcs of thc S ~ u r iy't CounciI did any representatiive den): the proposi-
tion t hat the relevant resc~lutionsof the Council, including resolution 276
(1970). were Foiinded upon thc dccision of the General Assernbly in resolurion
2145 (XXTj to terminarc the Mandate and place South West Africir under
United Nations responsibili:y. Nor was rhis denied in thc dcbüie which prccocIed
the adoption of Council ri:solutions 283 (1970) and 284 (1970). Fven those
States which there statcd, in effect, tliat in giving its advisor? opinion the
Court should refrain Froni pronoiincing üpon the vatidity uî rcsn,olution2145
(XXT) ',did oot deny that propcrsition. And indeed, there N7erccertain ather
Staiçs which clearly rt.coi:nized that that rtsolution waq of fundamental
importance to the issues k i n g mnsidered hy thc CuunciI 4.
14. The inevitabie conclusion to be drawti fronr al[ this is that Security
CounciI raolution 276 (1970), Ii ke t lie other relevant resolutions of ihe Council,
is based entirely upon the "decision" of the Gcncral AssembIy in paragraph 4
of resalurion 2145 (XXI) tri cerininate the Mandate ovcr Soiith Wcst Africa,
Io deny Soutii Africa any other right tu adrninistei. the 'lerritory aiid to placc
i t under the direct responsi:>ility of the United Nstions. .4nd al[ the masures
adopred by the Council and sct furih in ifs resolutions werc clearIy takcn in
pursuance of ihat decision and in order to implement it.
15. It foIIows as a matfer of course that if thc decision of the General
As-sembly was invalid and r j f no Iegal eR&, as is contcnded below 5, then the
resolutions of ihe Sccurjty Council, incIuding resolution 275 (1 970), which
arc based upon that decisim are equally invslid and lemlly inetfecijve and
that resoIution 276 (1971)) cz n thcreforc have no legal consequtnces for State-
including Soriih Afriça.
C:. 'Ihc Non-Applicability of Chapter VI1 of the Charter
16. It is clear that in adoNing the remlution conmrned, the Coiincil did not
: Ibld..?1529 (30 Jan. 1970!, pp. 7-1O.

lbid.. p. 18.
UN duc. S P V . 1550 (29 July 1970). pp. 37 (Nepal). 47 (Syria) and 53 (Zambia}.
+ Ibid.. pp. 87 {Friince) anJ 88, 89-90,91 (L'nited Kingdom).
Tri Chaps. VI-Xi.
intend or purport to act in ierrns of Chiiptcr V1L of Che Charter. Lt must hrst be
noted th&: the Couilcil did not in terms of Article 39 of thc Chartcr makc üny
deterniination, either expressIy or tacitly, 1 ha1 ihere existed "aiiy tlireat to the
peacc, bwuch of the ppeaw or iict of ayyrcssion", and sucfi a determination i s a
condition procedent to further action under Cl-rapter Va. But in tiny event il is
manifesr Srom the debates siirr'ounding the adoptiori of rcsolutions 264 (I3fi9),
269 (1365) and 276 (1970) that thc Coiincil dclibcmtely decIined to impose
meüsures under Chapter VI1 dapite the pressure brought tu k a r on i t by
certain mi:riihem nf tIie Council who were çtrvngly in favour of tlieir heing im-
pu&. So,rie illuslretions from ihc rccords of thcx dcbates will sufEce to show
this bcyotid doubt.
17. Thlis in the debates preçedirig the adopfion of resolution 264 ((1 969),the
repracntativt: of a r n b i a , who introduccd thc draft resolutiori concerned, is
rcported :.s saving:
"The second paragraph [of thc drüft rcsolution] i s a logical sequel. We
should have liked ç;itegoriwlly to state the truih that South Africa's con-
tinuej stay in Namibia is an acr of aggresion and, therefore, a tlireat to
inrcniational pcacc and sccurity. While we have had to accornmodate the
feetings of certain iiienibers who are averse to the idea of an inevitable
confrontation w i i h South Africa, we found it ncccssary to ti'y to advarice uri
such IittIe progrex? as we had b e n able ro achievc prcvioiisly. . . .
'
1 wish to eniphasi~erhat. in our vicw, Piiragraph 8 dm? nnt entjrely
excludt the applicütion of Chapter V I I . . . .
The draft berore us carries 11s only a IiltIe further; and after what 1 h a ~ e
said, and given Souih Africa's aIrnost traditiona1 defiance, \ve shoutd have
Ijked the provisions of Chüpter VI [ to corne into inimediatt: play. But we
are realistic enclugh to recognize the social, political and economic struc-
ture (if tfie interndtiona1 wnirniinity '."
T h e reprmentative of Nepal w ts to much the saine elTeci. Of ihe draft resolu-
tion hc said:
". . . my deIegalion is not entirely slitisfted with its provisions, in so far as
ihc drüft resolution faits ro deteriiiine the reality of the si t ration, na~iiely
the continued ilIegaI occupation vf the Tcrrilory, which constitutcs a
threat to international Wace and sccurity, and wards off any hint 01. sug-
gestiori of enforanicnt actions under Chapter Y I 1 in the eveni of failure on
the part of South Africa to coniply wiih the reçolution . . . niy dclcgatim
[hopes] diat 11s aduption üs a starting-point will make it possible for the
Security Council to take further erective and logical measures, if nect.ssary
under Chapter VIL of the Charter. . .3".
Thereprewntative or th<:Cnited States was able tosupport tliedraft resoIution
"because it wisely docs not conimit the Council to the narrow path of mandatory
sanctions undcr Chapter VI1 of 11ic Chartcr" 4. and the represcntütivc uf thc
United Kingdom siated:
Opcrntivc para. 8 aî ilie drari resoltitioo rrïd as foIlows: "8. Decides that in the
eveni of failiirc on thc part of tlte Grivtrnment of Souih rifrica to coniply ivith the
provisions or ihc prcscnt resolution, the S c u r i ty Council rvill mcer imrnediatrly 10
delerinine upon n w s s a r y steps or measurs in accordance wiih the relevant prû-
visions of !lie Charter of thc United Yaiiuris."
UN doc. SIPV. 1464 (20 M a r . 19691, pp. 21, 22 and 32.
Ibid., pp. 43-45 and 46.
+ U N dric. SjPV. 1465 (20 Mar. 1069), p. 7.
iYR[X'FN STA'I'IIYENT OF SOUTIi AIiRICA 499
". . . it is wclI ihat an original intention to include Ianguage Froni Chaptcr
VI1 of the Charter kas hcen abandoned. 1 havc aIready made it clear that
my Govcrnnicnt is not and will not be prepared to agrce to commitnlents
under Chaptcr VI1 of the Charter in this regard '."
18. It is deai-, then, thal id ahpline. resalution 264 (I969) the Council did not
intend or piirporl to act i i i lerms of Chaptcr VII of the Chi.ter. And thc samç
iç truc iri regard to the adopi~on of resolution 259 (1969). Speaking early i i i the
debate cuncerned, the rcpreientative of Zainbia again çalled f o r the application
of Chapter VII. After statir~gthat the invucation of Chaprer VLI was thc only
ivzy iu conipel South Ahim t o curnply with rcsuliltions of the Genernl Asseinbly
aiid of the Coiincil. he exprzssed the hope thar "rhosc whci opposc oiir cal l fnr
the application of Chaptei VI1 . . . will, in thc course of this dehate, ofcr us a
tiiorc alirxtive alternative :!".
Nor was his plea unsupporrcd. Tite representative of Pakisran declared that
the rime had corne "for pacsiiig from warnirigs to deeds, froni words fo action
-and action under Chaptcr VI1 of the Chartcr . . . "". -1'b.e representative of
India (a non-tneniher of th? Courtcil, speaking ai his own reqiiest) WC= of the
view that "only rcsolute aclion by the Sccuriiy Council undcr the provisions o f
Chüpter VII" would securc "jrnrnediate wiihdrawal of Souih Africa from t k
Territory +." The reprcscntative of SenegaI was convinced that "rhere is no
other way af dcaling with this matter thün 10 apply the provisions of Chaptei
VU or the United Nation:. Chaner Algeria too, calIed for action tindcr
Chaptcr VI1 b.
However, rhesc calIs were not heeded by the Council. As rhe represcntative of
Finland pointed oui, it ws:; nbvious that "agreement cannot bc reaclied on a
proposal to rescirt to cnrclrwtnent action under C'haptcr VJi of the Charter.
SiyniBcantIy, proposais 10 thal etFeci would no1 be IikeIy tu comniünd ihe
"
support of the great I>aivcrc perniüncnt members of the Security Council . . . 7"
Thwe views werc echoed by the represei~tative of China alid that they were
well founded is apparent frtm the inrervenrions of i w o of the pernlanent mcm-
bers. Thus the represeiitati*ieof the United Kingdom dectarcd:
"Lord Caradon rcpeated again in this Council ihat t h United Kingdotn
would not be prepared Io agree tu committnents undcr Chaprcr VT1 nf the
C'harter in this regard. ive know that thc sanie is truc of other Pcrrriai~ent
rncrnbers of t his Counril . . . WCal1 know t hat there is no chance of agree-
ment on effecrive mea:;ui'aî a~ainstSouth Africa such as arc envisaged in
Chapter VIK of the Chartcr Y."
And thc rcpreswitative of the t n i t c d Stales reaffimed the siünd previously
iaken by his Governrrient. He said:
"Our view as to the \visdoin and cIIicacy of action uiider Chapter VH of
' lhfd., p. 41.

U N doc. S!PY. 1492 (30 July 19691, pp. 21 and 22.
U N doç. S!PV. 1493 (4 . h g , IYbY), p. 26.
' Ibid.. p. 3 1 .
UK cloc. SYPV. 1494 (6 h g . 19891, p. 13.
UX dnc. 1493 (4 Aiig. 13SY), pp. 8-10.
U N doc. SIPY. 1494 {ri .4ug. 1469), p. 7.
UN duc. SjPV. 1495 {S .4ug. 1469). p. 12.
Y U N doc. S/PV. 1496 ( I 1 Aug. LY69), p. Ci.
rhe Cliairer rernains unchanged . . . speakem maintain that thc ttinie has
corne for the Coiincil to con~pelcompIiance wirh previous resolutions by
adopting nieasurcs under Chapier MI. such as mandatory sanctions.
In al1 sincerity, nly Guvcrnnient stil l cannot support that vicw . . . rny
Govcrnment stiII \wuId not comider rhat in present circumstanccs the
application of international çanctions in this case wouId be wise or effec-
tive l."
Thc fini[posirion of the &unci[ in regard to the application of Ctiaptcr VI1
is unequirwially shnwn by Ihe statements of the representativcs OF Zambia and
Nepal üt rl-ie close of Ihc dcbate.
'Ibe fornier dwIared:
". ,. xve hwe, as always, heard a million reasons why the perrnancnt
rneniixrs of the Security Council: and espt~iallythe Western rnajor Powers,
are n-rit prepared 10 apply Chapter VI1 or the Charter against South Aliica,
wi t hrrut any attractive alternatives being olkred us
The re~resentativeof Nepal stated:
"Alt hoügh. we know that the prescrit drafi resotut ion falls far shorr of
the rcquirements of the situation in rhat i t faiis to coinmit thc Security
Cour cil tn a specific course of action under Chapter VII of the Charlcr,
whicIi is whst is vitally needed, we have not cmscd to view the dcvclop-
ment:; in this case witl~our usual senw of optimisrn j."
19. Tht. dcbste which prewdcd tlie adopIinn of resolurion 276 (1 970) con-
tiniitd to reflect the discord prevailing in the CounciI r c ~ r d i n the
g applicaIion
of measures undcr Chapter VII of the Chartcr. The calls for such action were
fewer and ICSE categorical and there çan bc IittIe doubt t h t the reason for this
was the general rcalization rhai siiçh a murse of action would be qiiiie unaccept-
able to certain of the prrrnanent menibers of the Council. This attitude was
reflscicd ia the siatement of the reprcscntativc of Finland who iniroduccd the
draft resolution.
Ile said :
"Tlrie crucial quesrion concerns, of course, rhe use of coercive rneasures
undci Chapter VI1 of the Charter. The division of opinion on thar qiiest ion
in the Coiincil scerns to lx irrcctincilabIc, ai least for the presenl. . . .
In ihc absence OF the possihility or action under Chaptcr V I 1 of the Char-
ter. the Security CounciI has a duty ta exttrninc c w r y other means by
which it can advance the causc of the people of Namibia . . . rherc are, in
our i-iew, possibilitits of 'piactical action wkich so far hare not heen
explored.
The purpose of the draft rcsolution which I am introducing on bchalf
of its sponsors is to make it possibie for rhe Seciirity CounciI to explore
those possibilities S."
For prcsent purposes i t is sigiiificiint that in the discussion which followed
ihe introduction of the drafi resolution, there was acceptane by niembers of thc
Council ii+,atthe draft resolutionconcerned did no1 represcnt action taken under
-
UN SIPV. 149G (1 l Aug. 1969). pp. b and 9- IO.
<Ir%.
WC-:duç. SIPV. 1497 II 2 Aug. t969). p. 6.
Ibid.. p. 1 1.
Viz. Burundi, Finland. Nepal, Sicrra Leone, S y ~ i aand Zarnbiii.
'U N doc. S/PV. 1527 (28 Jan. 19701, p. 26.
Chapter VTI of thc Charter--indced, therc was sanie strong criticism of those
Statcs opposed to such acti.3n. As the representativc of Nepal stated:
"The draft rcsolulion. . . does not initiate those apprnpriiiie nieasures
cüILcd for in the Asst:inbly resolution [2517 (XXIV)]. The reasons are:
obvious. Thox meawi'ej a m u t ix applied wjthout the support d a1l thc
permanent members of the Security Council most of which, as WC al1 know,
are unforlunarely opposed . . . My delegation isconvinccd that no rneasure
by the United Nations ,#hich fcIl short of those provided foi-in Chapter VI1
of the Charrer ivould b,: suficient to persuade or coerce the Govcrnrnent of
South Africa to withdraw ils illegal presence frorn Narnibia. We realize
ihe dificulty in the way of wcuring the application of those nieasures by
the Seciirjty Cnuncil l."
The reprcscntative of Inrlia (a non-rnernber of thc Council, sp~akingat h ~ s
own request), after suggesiing that thc k u r i l y Council should imrnediately
apply certain interini mcasures, continucd by saying that his delegation was
"fully conscious, hofiVever,that more energet ic action ilndcr Chapter V I i will
be riecessay to bring aboi11 the full impletnentrrtioii of the United Nations
to secure the frmGom and independencc of the people of Nainibia '".
According ru the rrpi'esent~tiveof Pakistan (alsri speakjng al his own requesr):
"It is cIear that thr: Asian-African Menitsers are unanimous in their
sincere klicf thai nothing shorl of measurfi under Chaptcr VI1 of the
Chiirier wil l be adequare and that such nicasurcs are eininentty practicablc.
But the second part of this proposition is not acccptcd by somc of the per-
manent rnemkrs of 11-teSecurity CounciI :$."
And, in the opinion of th: represeniative of thc USSR:
"The Security Council in different condirions and with a diffcrent
approach on the part of some delegatirins could adopt an effective reso-
lution in kceping with thc provisions of Article 41 of Chaptcr VU of the
United Nations Chari-r, which wouId reaIIy contribute ta iichieving the
ahjectivc fur which :hv arc met here today ?."
20. It is thus abunùantIy cIcar that in adopting the resoltitions in question
the Security Council ncithcr jntended nor purprted to aci (and accordingly
did not in F ~ cact) :.
t under Cliapter VIT of rhe C.harter Fndxd, having regard to
the attitude of certain of its pcrmirncnt rnemliers, it cinl<idnoi have actcd in terms
of that chapipler. It fr>lIowsthat whatever else the nature of t h e masures adopfed
in resolut ion 276 (1970) ma:i be; they were not preventivc ur en forcefilent mea-
sures iriithin the meaning of Chaptes VII,
D. The Rdcvance of Chapfer V of the Charter as a Separate mis
for thc Action of the Srcurify CwnciI
21. Thc nenr question is xhelher, in adopring the rcsolutions concerned, and
thc Securi~yCouncil can be said to have acted
especiatly resol~ition276 <lnJ70),
l UN doc. S/PV. 1528 (29 Jan. 19?0), p. 57.

UN dot. S/PV. 1529 (30 Jan. 1970), p. 41.
- i b i d , p. 53. And see also at p. 56.
' Ibid., p. 87.
V u r t r t l r proof of this is to bc Coiind in the dtbate preccding thc adoption of
Security Coiincil resolurions 283 and 284 (1970). See espccially the srattrnetits of the
502 XAMIHIA (SOUT~IWFST AFRICA)
uiider Cliirpler V of the Charter. It is obviouj ihar thc only pi-ovisions of ihüt
chaptcr wiaich could pvssibly bç lakcn to serve as a hasis for ihe action of the
Councit are paragraphs 1 and 2 of Article 24. Those parilgraphs read as follows:
1 . In order to ensuri: prorript a n d ~ c f i ç t i v eaction hy the United Nations,

its Menibers çonTcr on the Security Churicil primary rcsponsibility ror
the rriaintcnance of internatiorr;il peüw and sccurity, and agrec ~hstin
carrying out its dulies undcr this rcsponçihiliry the Security Council acts
on th.5~behalf.
2. Ln discharging tiise cfuties Ille Seciirily Coiincil shafl act iri accordancc
with the I'urposes aiid Principlcs of the United Nations. The specific
pnwei's granteci to the Socurity CounciL for the discharyc of these duties are
laid down in Chüptcrs VI, VU, VIII, and XII."
How arc tlicse provisions to be inlerprctcd? Thc question khic~itlrixs here
is whether, as has wrnctinics bccn rnaintiiined, Article 74constitiitcs "a iesiduary
source of authoriry which caii lx drawn on i o m~t: situations which arc not
covcrtvi by thc more detailed provisions in the sucœediiig Ai'ticla '". To put
the question another woy, docs Article 24 contèr upon the Sçurity Council tiut
onIy Ihe powers laid dowir in Chapters VI, V I I . VILI, and XI 1, but aIso such
Jtirtficr puwcrs, consistent with the Purposcs and I'rinciples of' ihc United
Nations. as are necessary tu cnabIc i t tn mainrain international pcace and s ~ u -
rity'!
It is sirbinitted that the answer miist lx in the negaiive. To inierprct the Ar-
ticle as coiiferrinp upon ihc Cauncil powers for the niai rit cil an^^ of interna~iona!
F a c e and security in excess of those specilically granicd in the chapters in qucs-
rivn and liniitcd nnly hy rhe Purposes and PrinciliIes of the Lhartcr, is to invest
the Coüiicil with implicd pnwers which would be virtiialIy unlirnited in thcir
scope. Such an ii~terpretaticinis no1 onIy ncgatcd by the clear languagc of the
Articlc itself but côn hardly correspond wit h the ii~teniionsof ihosc who framed
the Charter.
22. Parügraph 1 of Article 24 is d u r l y gc~cralin its nature and effwt. It
provides i i i essence thal the Members of the United Narions confer upon the
Secüiity C:auncil primary responsit>ility for tht: n~aintenanccof internationai
Face and sc-eçurity. [ t indicates thut ihis rcsponsibility is cankrred in order tu
cnsitrc prompt and etfective action by the United Nations, aiid that in carrying
out its duties under this respnnsi hl ily the Coiincil acts on behalf of the Mern-
bers of rhc Unitcd Nations. Ii says no morc than that. As lvill be pointed out ',
i t is Iiighly probable that the object of insertino this paragraph in the Charter
kvas nie& to elrlphasizc tlie paramaunt Ïniportance of rhe Council's "peace-
keeping" function and its pritnary responsibility in this rcgarÿrd. As one erninent
wmmcntator has suggssted, the paragraph "means nothing else but thüt the
Charter confei-supon t h e Securiry Council primary responsibili ty for the acl~ieve-
nient of tIie genenl purpose of ihc Unitcd Nations j" which is, of course, the
.-.--
- - --
tepre\cntaiives of Nepal and Xambia {LN d o ~ S;PY. . 1 550 (29 Julv 1950). ~ p 36
.
and 5 1 rçsl>ectively).
Rro~rtovvof Unittad Ntrriuns Prarricr. Vol. 1 1. D. 1 9.
~ i d &a.
r i7, infra.
Kclsen. The i.nw oJrhr Ufiitrrl iVïiliorr.s (19511, p. 283,
WRITTI ':STATEMEYT OF SOUTH AFRICA 503
maintenaiicc of pclicc and smurity. But therc i s norhing at a Il in thc langüugc :cf
pariigraph 1 ii-hich warriinl:; the construction that rhe priniary responsihility of
the Council irnplies a hiddcn rcxrvc of powcrs. Tlie conferiiicnt or "priniary"
responsj bility upon t hc Council---obviousty vis-&vis ano t her organ, thc Gcncrai
.4ssernbly-iiiiplies nothing riiort: t han that the other organ ha5 only a "secon-
diiry" rcsponsibiliiy for flic rnaintcnance of p e x e and security. Moreover.,
paragraph I dms not cvcii deal with "powers", mriçh l e s confcr thcm. It
nicrcly prescribes in general rerrns what tlie most iniportant.jiwctian (or respon-
sibiljty) of the Cuuncil i s 1-2 be. 'lhe powcrs ncccssüry to the excrciu. of that
funcr on are adverted to o c l y in .paraaraph
- . 2.
Pariigraph 2 or the ~ r r i c i cprovides i i i plain Ianguaçe that in discharging
"thcse dut icx". Le.. ils dtiliei under its vrimary. rt.soonsilrili tv for the iiiaintenan-
ce of' peace and secbriry . th*:Couticil hall act in accordan& with thc Purposes
and Principlcs o l ihe Uni tcd Nations"-an obvious ceference to the Purposes
aiid l'ri nciples set oui in Articles 1 and 2 of thc Charter-and Furlherniore that
"the specifc poi1:ei.s grantc.1 to the Sectlrity Council for the discharge of ~hesc
d~t!i.es~ shall bc ihose "laid down in Chapters VT, VIT, V [II and XII". 7'heje
words, in their ordinary rneaning, far froni e.~renditzg the "peaw-kcepirig"
powers of ihe Council, in fitct firiiit therii. And they limit thcnl in two diffcrcni
ways.
23. 111 the frrst place, th? Council 1s haund to act in acmrdançc wiih the
Purposes and Principles wliich are sri out in Articles 1 and 2. I'hc Ptirpuses
dcscribc in very generiil terrns ~ h c"cornmon ends" of the ineinber States; they
are ille ''cause and objcct ttf the Charter '". Thc Principles presçribe Che fun-
ctamcntal lenets in accordancc with =,hich ihe <)rganization and its .Mernbcrs
undertakc to act "in pursl~itof*'the Piirpvws. The Principlrs rnajr iinpose
obligations; the I'urposcs are essentially a guide to conduct. Howe\*er, neither
the Piirposes nor the Principlcs add lu powera conferred elsewhere in ihe
Charier. Nor do thcy indicate, except in the most general way, the nrearis 1 3 ~
which the. stated Purpow are to be inlplemented and understandably so,
because rhat is soriieihing vihich i s Icft to and governed hy other provisions of
the Chartcr. Rclcvant cxaniples are üfforded in rhe case of thc basic Principle
set oui ia Article 1. parrigr:iph 1 :
"?hmaintain intcrn-llional peace and security. and to that cnd : to tske
ctlicclive colleciive mwsures for the prevention and rcniaval of threais to
the price and for the siippression of acts of üggressioi~or other hreachcs of
the peace",
". . . to bring about by peaceful iiieans, and in conrormity wilh the princi-
ples of justice and internatiomI la&, adjustment or xtttenient of interna-
tional dispiitcs or siru:itions wliich rnjghf Irad !O a Lireach of the pcsicc".
The dctüiIed implcmcnt;-.tii of the first of these P u r p a ~ s ,wliich is often
descri bed as "collcct ive seciirity", is provided for in Chaptcr VlT of the Charter,
whilç ihe way in abhichthe second, thc pcücelùl settleinent of dispurcs, is to k
irnpiementcd, is prcscribcd in detail in Chapters V I and VTI 1.
These exainples are illuslrar ive of the principle, wh~chhas found expression
in the jiirisprudence of thi:; Court, ihat !lie Purposes of the Unitcd Nations,
broad though thcy may bc, caniiot be irnplemented by any means whatever but
l Report of the Rapporrcur of Cornmirtoc 1 tu C<immission 1, UNCLO doçs.,

Val. V I , p. 447.
onIy in amordance with the means specifically provided for in t h e Charter.
Thus, as Judpe Winiarsk i stated in ihc Cerfaitz Expct~scscase : '
"l'he Charter has set forth the purposes of rhe Cnited Naiions in vcry
wjde, and for ihat ruson tov ~ndcfinitc,terrns. But -+part from tlie 1-e-
sources, including the financial resoiirces, of the Organization-il drirs nul
f»io IV, fur frein i f , ~ l i r i frhe Organiïatior~is ctltiiled tu seek ro nchiew rliose
pirupuses b-v no warrer wliar nieans. The facr rhnr on orgnn of the United
;Vaticns is seeking to achier,~ one of ih<)srpirrpusels dues Iivr s11,$7cetu rrirdttr
ils ncrion laryfil. The Charter, a miiltiIaleral lrcaty which was the result of
proionged and laborious ncgotiations, carefully creared organs and deter-
n~inedtheir coiiipetence utrd nrrurls of crrrion.
Th: intention of tthosc who drafted i t was cIearly t o abandon thc possi-
biIity of u x f u i action rather than to sacrifice the balancc of carefully estab
lishetf fields of cornpetence, as cati be seen, for example, in the case
of th$: vot i ng in the Secririty Coiincil. 11is oniy by s~ichprocedures, tuhich
Ivere cfearly defined, rlior rhe United Nalinltr con seelc zo achieve ils
purpcscs. It may k that the United Naiions is sorneiirnes no1 in a position
to undertake acrion which would bc uscfuI for the mainienancc of inter-
national mace and securiry or for one or another of the purposes iiidicated
in Article I of the Charter, but that i s thc way in whiçh rtie Organiration
was conceived and brought iitto king." (Tttifics added.)
And in th; wards of Judge Koretsky in lhe same crise:
"1 am prepared to stress tire necessity of the strict obxwation and
propt:r interpretation of the proxrisions or t t ~ eCharter, its rules, withoiit
limiting itself by rcfmncc tto thc purposcs of thc Organization; oiherwise
one woiiId have to conie to the long ago wndemned formula: 'The ends
justif., the means' '."
, wclI as from thc plain urorditig or Article 24,
74. It f3IIows frotn ~ Î s as
paragraph 2, t kat the second way in which the Securi ty CounciI is Iirnited in the
exercisc of its responsibility for the maintenance of international peacy and
security is thai i t must act in accordance wiih those spwific provisions of rhc
Charter \ilhich prescribe the relevant ineans of execrition-al1 of which are
containcd in Chapters VI, VII, VU1 and XII. And that isexactl y what parapraph
2 of Article 24, perhüps sameWhai tautalogically, ssys where it provides t h t
the "speci ic powcrs granted . . . for the discharge of these dutiesare Iaid down"
in those chapters. As Kelsen has pointcd o i ~3,t paragraph 1 of Article 24:
". . . {anhardly be interprcted tu cunfer on the Council the cornpetence
to maintain pcace and sccuri ty---in the widest possi blc s e n s e b y riny ineuns
thut rhs Councii rnay lihnore. Such interpretat ion is incompatible with the
'
starem.cn t of Article 14, paragraph 2, lhat the powers gran ted t o the CnunciI
for the discharge of the duties which il kas undcr the responsibility for
the maintcrance of peaw are laid down in Chapters Vt, V i l , VIll and XTT."
(Italics added.)
Certuiiz Expenses of rbe fiired Naaiionr, Arlt.isor.v Oplnion. 1.C.J. Reports 1962,
p. 320 (dissenting opinion). Vide al%)<iin<lschedlcr.R. L., ''La Délimitation des
Compétences dw Nations Unies", Recireif des roufs, L7oI. 108, No. 1 (19631, pp. 320
and 388.
Ihid., p. 268 (dissen cing opinion).
-' Op. rii., p. 284.
WKITTI~KSTATEMIIS~TOF SOUTH AFRICA 505
The position can hardly hc othcmise, fur were il so, tbre \*ouId hav: b e n no ,
point in cvcn çnacting ~ h -:hapiers
e in question-they would have k e n super-
Iluous.
25. It is submitred, then, that ihc languagc of Article 24 provides no basis at
al1 for the asxriion that thai. Article invests the Council wiih certain implied
residuary powers. And in view of this it can h r d l y be maintaincd that thc
States represented at the San Francisco Confcrcncc could tver have inteiided to .
confer upon thc Council. by nlere implication, unspecified po#eFs which, lirnited
only by the very general provisions of Articles 1 and 2, would in priicticc bc
virtually unlimircd.
As Judge Hackworth poirited out in his dissenking opiition in the Rrpruiioii
for 1~:jiirit.scase :
"There can be no gaimoyiny thc: fnct thai ihe Organization is one of the
dclcgated and eriume~- cd powers. Ji is ru &e presiimed rhar sitcfr powers as
Afeml~crSrnres dcsire~'In mi:frr tipon ii are siored either in the Charter
or in complernentary agrwnients concluded by them. Powers nar uxpressed
canrrot freelwv k bPvrpfiipd. ii~ipiicdp#WErS JIow jiom u grntir of expresscd
poslers, ciftd are liznifcr/ lo /hose tlir~rart? 'n~res.~nry'
io ike exerrisr u ~ p u w r r s
exprrss/y g r n n l d ln''(itülics addcd.)
And dciiling spwifically v:ith Article 24 of the Charter, Judge Azevedo statcd
iii his dissenting opinion iri the fioizrpptence of the Gcnfrnl As~cmllyfor rhe
Adnrissiun nJ'o Siure io the Ut~ifcJ:\!ntiutis case 2 :
".4rtic[e 24, which is the keystrine of the Charter, embodies the alirnutiotz
n(:ftrraifFerrioni ucceprcd hy the rrariotis conve.eriednr San Francisco
of rlt11~ir
. . . Thc signütorics of the Pact have granted exceptional Faculties to the
Security Cooncil, which, on ihe other hand. has assurned duties, for the
performance of \iihich it has rcquircd that proper, spcrific orid clearly
defit~~dpowers begrnn1r:dia if. This is the basis ofa sysrem u3hichattemptcd
in !dancc fwo forrf.7 irthich enter into pfoy: sovrr~ignequa/ily uirrl concern
for securiry by nieuns oj' world p ~ n c eThe
. normal opcra lion of the Organiza-
tion rcsts upon thc cven baiance of these forces." fltalics added.)
26. Ii-i uiew of the conctusions renched. the question might weli be posed: if
Arricle 24 were not intenderi to confcr upon the Sccurity Corincil functions and
po\.;c~sadditiond to those conferred elsewhere in the Charter, what thcn was
the purpose of inserting thai Ariicle in the first piace? In answer to this question
it is Io be noted at the outict that thc hcadiny to Ar~icle24 - -~Functions and
Powcrs"-is sorncwhiit misleading in that the Article is not exhaustivc of the
powers and functinns of the CounçiI biit enurnerates only oncof ihem,aIbeit the
principai one, nanrely the maintenance of intcrnütional peace and security.
Thcrc arc, howcvcr, othcr ar t ides of the Charter which confer upon the Council
powers ~vhichdo not relaie tu the maintenance of internationai peace and
seciirity as siich. ExampIes .ire Articles 4, 5 and 6 in tcrms ofwhich the Courtcil
is requircd to niüke recornm:ndations for the admission of States io membcrship
in the United Nations, the saispension of the rights and privilegcs of rnenibership
and ihe expulsion of Memirers from the Orgsnization, respectivcly. Artide 93
rcquircs a rocornrncndütion or the Councif before a lion-Meriiber of thc United
Nations inay beconie a par1.y Io the Statute of rhe InternationoI Court. Article
~c~urcitivrt d ,/le Scrvice of the United ilrariotts, Adïisrir.v

li,r Injuries S u j y ~ r ~iil
Opfniun.].CI. Repuris 1949, p. 198.
Adi.isor+v Opiniun. 1.Cj . Kepons 1950, p. 27.
96 providcs t h i the Council may rcquest the Court foi-an advisory opinion un
any legal question. In terrns of Articie Y7 Ihe Council i s rzquired ro make a
recomrrieridation regardirig thc tippuintmcnt of thc Sccrctary-Treneral of the
Organization. Article 4 of the Statute of the fnternatianal Court, which forrns
',
an integral part of the Charter requires the participation of ihe Council in the
eIcciion or the members vf thc Court.
27. Thrse c~arnplesshow that the functions and powers of the Counçil arc
nor confiried to ttie maintenance of intentational F a c e and sccuiity. Why then
docs .4rrir;lc 24 mükc spccitic rcfcrcncc t o this function and to this one atone':'
Thc records of the United Kat ions Confereiice oti liiterriational Organization
held at San Francisco in 1943 provide no unequivucal ansuberto this question
but irom ihusc rccords it üppcürs Iiighly probahle that Article 24 ivas inserred
in the Ch:irter with the ohject not on1y of eitipbasizing rhç paraniount iinpor-
tance of tliis particular iuncrion or rhe Council bur alsu of strcssing the!~rirttury
of Ihc Coiincil in rhc field of peace and security ? These rvould appear ro be the
real ohjects of the insertion of Ariicle 24, ut a i Ieast of parag~aph1 thereof.
Wor are the rrasons for this far to scck. The maintenalice of Face and securi-
( y is thc ovcrriding aim af the Charter of the United Nations: the first of irs
stated Purposes is to ''maifitain interiizitional pwcc and sccurity" and i t is
understandable thal lhe importance of this rtinction should be empfiasized in
t hc casc of thc organ charged with pritnary responsibili~~ in exercising i t . BiiI
that respoiisihility, alttiuugh "priniary", is nut "cxclus~vc", rince under the
provisions of Chapter IV of the Charter the General Asseiiibly too has res-
ponsibility in the field of peace and securiry 3, aiid in ihese çirciirnstançcs i t is
not surprising that the Charter should $1 ress thc primücy of thc rcsponsibiliry
of the C:eiincil-an organ which bccause of its coinpai.atively sniall s i ~ e .its
coniinuoiis functioning and iis ahility in certain circutnstances io takc preven-
tive or enforcemetii rneasurL3 can opcralc t o maintain or restore the peace
much niore speedil y and cffectivcly than can the General Assen~bly.as, indeed,
is rccognizcd in the opening words of Article 24 ilself-.
38. Despire the foregoing, argurnenis havc bccn advanccd in support of the
thesis that Article 24 ducs contüin a reserve of p0wei.s and that coiisequenily
ihe Security Council can act to maintain peace and securiry oiherwise than in
accordalice with the chapiers ihc Chartcr spccificiiIly mcntioned in para-
gtaph 7 ol' thnt Article. In rhis connection the practiœ of the Council i tselr Falls
to be conridcrcd. Thus the repart of the majoriiy of the Council's Cornmittee
' Vide Arl. 92 o f thc Chartcr.

It was no1 doubiçd at San F-rancisco chat thc Sccurity Ccuncil would have other
dutics besidcs those slipulüird in çcinncction w i t li thc maintcnancc and cnforccincnt
or iniernaiional Wace and security. (Set ihe sltiicmtnts of thc United Kingdom and
Rtlgian rcpresentatives in Coriir~iittee1 of Comrn~ssionIII-UNCI0 ducs.. Vol. XI.
at pp. 381 anri 393. respectively.) Keveriheless, lhe hrading to scc. H of Chau. V I OF
the Dumharton Oaks Proposals (wtiich \vas the prrçurscir <ifArt. 24). viz. "Piit~cipai
Funcrions and Powers", was rctoined by that Corninittee despire a h-orwegian
proposal to delete ihe wtird '-Principal" o n tlie groiinds that: "As a matter of legal
principlc. thc functions and poners of the organs of the Orpanization should be
çxhaiisrivcly stated i n ilie Charter" (UNCI0 docs., Vol. XI. p. 767). In the tcntritir7e
drrift <if t kc Co-ordina fion Commit tee. the headin-: "Priinary Rcsponsibility" was
subsiituierl (ihid., Vol. XV, p. 70) hui in rhe finat drafr o f the Charter appriivcd bt.
the Cu-oriiinati~in Cornmittce and the Adr isory Ciirniiiillee or Jurists on 22 June
1945. the present Iieading-"Funciions and Powers"-was decided upon.
V'ide C'crtniir E x p e n ~ @of. ~the C'nired ,Vuiions. Advisory Opiniun. I.C.J. ficpoi'fs
1962, p. 163.
W K I - I ' T ~ NSTATEME~TOF SOIJTH AFKICA 507
of Experts noted in conneci.ion with one qiicstion before i t tliüt "thc probleni
shoirld nul lie roiisidcrerl frurii cz leg(itiv!ic pcliiir cifviciv since 'The Charter has in
fact invcsied the Security Council, cspccially under Article 24. wi th certain
pvlirirni functiot~so f p r i t ~ u t y Nnporlartcc by conrerring on ~t thc priirlciry res-
ponsibility for thc rilainienance of internationiil pcace and security' '". In con-
nection with another question, the viciv wüs put fniward in the Coiincil rhat it
"was a basic conception of t he Charter tliat the Mcmbtrs of the Unircd Nations
had conrerred üpon thc St ci1ri ty Cou ncil powEersconirnensrtrrrfc wirh i f s res-
pnfisihiCitj~fur the ma intcnancc of pciicc and slcuri t y. Thc o n b limirrition.r were
those irnpoxd by the stipulatioris coiitained in rhe fiindamental Purposes and
tarinciplesto be found in Chapter I ? . ' I n ciinncr-tion witIi a tliird question i r
was urgcd lhal-
". . . the ponters of thc : k u r i t y Council under Article 24 were nor rejtrictcd
to the spcciric grants ot'authority containcd in Chapterç VI, VII, V I l I and
XIT. Grave reservations about ~ h e s e'so-cüIlcd wide rrserve powcrs' wcre
e~prcssed,biit i t was ciiiphasizcd thut oncr lire Secirriry Couticil had dcrcr-
mit& ffint rhcrr w(i.7 dt111gcrro itzter~~tiojmi pmce uild scc~trity,it had full
aurhority to take the propnsed action" {to set up a Commission of guuJ
offices and in\~estigatioiif3.
l n furnishiny an opinion in connection with yet another question, rhe Sec-
rciary-Geiieral concluded ihat by its decision in the Trieste cax Ihc Council
"had 'reçogni7ed the principlc ihat it ha$ suficienf power, i~iiderthe tcrnx of
Art iclc 24 of ihe Charter, 117 asslune neir7respon.sii>iiific,r,oti cuiiditinn rhnt rhe-v
rrluie directiy, or e wii indirocrly, ru tkc innilirenonce of iri?ertmfiujinlpericr and
r~curify,and chat in dist-liarging these duties, thc Secrrrity Council açis in
acmrdnncc wit h the Purposes and Principles of the Charter' '".
29. These vkws d'id nor. howeuer, go unoppuscd in the Council. Particularly
in the Triestecase. althougfi i t was no! dotibted that thc question relntcd to the
rnaintcnlinw ofp a ç e and :ccurily, it was cclntended that the responsibiIity of
the Council in thai çrinnection could only bc exercised through the specific
poivew yranted foi the purpost: in Chaplers VT, 'C'if, VlII and XII j.
311. Tf is subrni~ledthat i i t the final analysis. t hi: argunients whjch have k n
advanced in the Socurity Cc.iincil in support of the proposition that the CounciI
can act to maifirain peaÿc and sccurity orherwise tthün in accordance with
Chapters VI, VII. VIII and XTT oF the Charicr, are poIitica1 rarher than Icgül.
They are teleological in natiire and seek to justify action in siruations for whicli
the Charter in fact d x s no; provide. Ttiey are, in short, exira-legal argunients
which scck tu circurrivei~to r supplement thc provisions of the Charter. As onr:
comrnentator has put ii :
"Thcrc fias beeit a definite tendcncy on the part of the principal organs
[of the Unireci Narions], especially of the Sccurily CbunciI, to iidopt and
jusrify ri particuIar couac tacr ri on in terms of its cffwtive contribution to
advancing the purpose; and pr.inciples of rhc Organization rather than un
the gound that the acrion js in uccordaiice with rhe detailed provisions of
the Charter govcrning tht: powers and functions of rhr: particular organ.
-
' Keperfnrjmrif United :Vuiisns Pruriicc, Vul. II. p. 20. {Itatics added.)
Ibirl., p. 21. (IraIics addc:l.)
Ihid., p. 22. (Italics adde3.)
' ?hi({.. p. 23, footnote 18. (Italics added.)
Iliid., p. 21.
508 NAMIBIA (SOUTH WEST AFRICA)
Thus, in dealing with disputes and situations, thc kcurity Council in

praci.ice has not considered i tseIf rigidly bound hy the detailed provisions
of Cliapters VI and VI1 of thc Charter regardin2 the coursc of action to bi:
folinwed. Rather the Council lias adapted i!s coursc to the cii.cumstançes
of each casc . . . "'
The argiiinenrs heürd in the Counçil in this connection and mentioncd above '
amount i l effect IO the contentions tliat in regard l o ils rcsponsihility for the
niainteiiance of pwcc and wcuriry and within the soIe liiliits of the Purposcs and
Principles of the Charter, the Council hüs been entrusted wilh political functioi~s
~ that therefore, whenevcr the Pace is thraitmed
of the hiphest i m p o r t a n ~and
or disturtied, it must have powers cornmensurare with its responsibility, cvcn to
the cxten: OF assurning new powcrs not otherwise conferred.
The fr:inkiy political nature of this proposiiion wilI be at ance apparent.
And that its busis is in fact political ralher than tegal is confirmed when rcfcr-
enor is had to statemetrts rriadç in thc Security C:t~uiicil.The debare concerniiig
thc Trieste question wilI sufice as an exaniple. During that dehate the repreçrn-
tative of Poland stated:
"We do not have any legal quatrns about the Security Councit xcepting
Iht: rcsponsibilities it is asked to accept. 1 k t w w rhaf it !?taybe sun~ewhn~
dificuff to point TU n specijc phrrise in the Clrarrer driclr wosld jusrify the
?okiixl owr of the futrrtions we are asked tu assitirte. Hnrsswv, I lhink il
woul d bc cnti rel y wiihiii the gei~rrnispirit of fke Chrrer of ihc United
Raticins. if it wrrr: decidcd to frirm a Free Territory undcr a quasi-inter-
national administration '." (Ttalics addcd.)
'l'lie represeniativc of Colambia was even more outspokeii. He ssid:
"We are not conmrned with indicating our dccision, particularly with
regard i o thc powers and Functiuns of the Security Corincil, but I must
say tliat we art. irr jb~~uur oJe12iargingthr pawers o f ~ h eSecurity Cortnril and
of the Assernbly as well. Ru( thc qucstion has arisen . .. under the as-
surnpt ion that ii ran be argried und hn.reJ (m rkc spirit of the Charter rnthcr
zhnn nn atiy defitiite provision of rire Ckt~rter.rfkel it isa very gaodrking fhat
. . . '"
wo sfrotrlrI es'srabltrh riiis prcceiienr {rtalics added.)
BasicaIly sirniIar views were cxpressed hy the represcntarives of thc Unitcd
Kingdom and the Uriiicd States
PoIirical arguments such as these and dccisions taken in pursuance of theni
ciinnot ovcrridc the provisions of thc Charter or be usai to supplement a
supposed lacuria in the Charter. A s the Court has said "the political character
of an organ cannot rclease it from the obscfvancc of the treaty provisions
estahtished by the Charter whrn they constitute limitations on its powers*'.
The Security Council is no cxoeptian r a this rule. l t has only the powers con-
ferrcd upcin i t by the Charter and it iriust act in accordance with them. Article 24
prescri bes t hat in exercising its respunsibility for the maintenance of ititer-
national pcace aiid security, it shaI1 act within the lirnits of the Purposes and
l Goodr-ich,L.M. and Simon~,A. P.,The Uinircd Notiorr~und the .Wuinienunce 01

Interna? ioiiul Peuce atid Securiry ( 1 9551, p. 599.
Vide para. 28. supra.
' SC. OH,Sccond Year, No. 1. 89th Meering, 7 Jan. 1947, pp. 14-15.
Ibid., p. 18.
j I b M , pp. IO and 1 1 respeçiivel y.
V i d e Chap. III, para. 4, suprri.

Principles oï the Charter a~rrfin accordancc with the specific powcrs grantd iit
in Cliapters VI, Vïi, VI11 and XII. It cannot, therefore, açt ottierwiw in dis-
charging that respnnsibility.
31. The condusion is thiit since, in adnpting rcsvluiion 276 (1970) and the
olher relevant resoIutions, ~ h Council
e did not act i i i tems of Chapter VI1 of
the Charter, and sincc Arric:lc 24 of Chapter V mnfeis upon it no scparate and
independcnt powers, the o.iIy rernaining Chaptcr under which i t could have
acted, is Chapter YI. It therefore rcmains lo enquire whcther the Council did
act in leriiis of that Chapter.
E The Relev:mce and Reyuiremmts of Chapter VI

of the Charter
32. If,as has bccn subrnitted. the Security Councii in adopting these various
rcsolutioiis couId not havc açted under üny chapter of the Charter ot her than
Chapter VI, it is stilI a question whether its action w& aurharized by and in
conforrnity with thc provisions of that Chapter.
In this cannection i t will be cuntendcd:
(i) I haî the powers of t h e Counci1 under Chaptcr VI can only be invokcd for
the purposc ofmainlainirig international peace and wurity and that since
the real purpose or puiposts of thc Cvuncil in adopting Ihe resdutions
concerneci were altogether diffrrent aiid quite unrelated to the maintenance
of p=x and socurity, ils action was not authorized by that Chapter; and,
in any case.
( i i ) tha t the CounciI did n a t act in wnforinity with the provisions of Chaprer VI
k a k - e at no timc did ir coriduct an impartial and objcctivc investigation in
order to determine whe:her the disputc or situation in q~iestionwas likely
to endanger international peace and security and that this was a sim qun
nm for its ~doptionor ihe relevant resoIutinns.
II. The Scope of !lie lio wers of lhe Coit~iciiunder C.'linpfer VI
33. rt woutd seem indispdltabie t h t thc onIy powem of the Securitj.Cout?cii

iinder Chapter VI which are reIcvant heiei-e arc those which arc conîerred in
Articles 34, 36 and 37. For in adopting the resolutions çoncerned rhe Council
clearly did not act in terms of Article 33, psragraph 2; it could not have acted
in lerms of Article 3 X kcause the parties did not su request; and Article 35
dom not cunfcr any powers upon the Council. And since Article 34 confers only
powers of investigation, if fi3llows t h t fhc nieasüres adopted by ihe Council in
the reIevant resolutjons co?ild be justified, if at aI1, onIy bs rcfcrence to the
relevant paragraphs of Article 36 or Article 37. Article 36, paragraph 1 , 1sys
down that:
"The Socurity Councif rnay, at any stage af a dispute of the nature re-
lerred to in Article 33 [i.t.,one'thecontinuance ofivhich isIikely toenbnger
thc maint en an^^ of inttmiitional perrce and security? or ofa situation of
like nature, rcconimcni+.appropriate procedures or mcthods of adjustmcnt."
ArticIe 37, paragraph 2, priwidcs chat :
"If the Security C ~ u n c i Ideems i h a ~the continuance of the dispute
[i.e., one 'the continuarlce of which is IikeIy to cndanger the maintenance of
510 'IhhfIUIA (SOI:TII W I T T AFRICA)
interi~ationaIWace and securiiy-vide paragraph 1 rerid with Art icIe 331

is in facl likely io cndangcr the iiiaintenance of inrernatiomI peace rind
security, it shüll decide whettier io tnke action undcr ArticIe 36 or ro re-
cotnrnend such terms oF settlerneni as i t may considel-appropriate."
It iiiust bi: obviuus tliat whcn, pursuant to these Articles. the CounciI aticmpfs
ro sctdc ri dispute by way of reconimending apprvpriatc proccdures ni- merhods
of adjustriient or teriiis of settlcmcnt. it does so with only one end in vicw-to
rnaintain intcrnationül pcücc and security. rndeed, i l con only act for tliat
purpose. The sole purpose nf the ichule of Chaptcr VI is thc maintenance of
jnrernarional w c e and securily. Aizd il is for rhar purposr uirrl rhni prrrpose
rilurrc rlrnr tiie powvrs O/ the Colrncif uncirr C:hnprrr Vi ir:cre confirred. That is
cvident f r . m the provisioiis of Article 14 whcrc thc pmvers conferrd upon the
CotinciI i r i Chapter V I arc cxprcssly stated to be granted "for thc dischargc of
rlir.irc dutiis". ihüt is t o say, its duries irnder its "primary rcsponsibility for the
inaintenüiice of international peucc and sccur~ty". It is also evideni froin the
language of every article in Chapter V I saire perhaps Article 3%. Cunsequcnily,
sincc ihc CvunciI is bound by the rerms or the Charter and the Charter has
confei-red upon it the powers in qucstion for one specific purpose, it cannot
invoke th-rti for any olher purpose.
34,Nc~rcrthckss,even in the field of iniernaiional peacc and security, the
Council ciinnrit intemene in rwry disputc or situation. k-ar although in terni$ of
Article 3:. paragraph 1. a Membcr of the United Natiotiç moy bring tu thc
attention of the CoGncil any dispute. or an) situation which tirigirr leud ro
fi-ii'tivn ur give rrle ro a ( I ~ S P I I ~ and
ii!rtprncirio,7rri P . althnugh in ternis of Article 34
the Cotincil rriay invesligatc any dispute, or situation of such ü nuiurc, thcrc is,
cxccpt in thc cüx of ArticIe 38. a condition precedent to any frirther action
of the Coiinci[ under Çliapter VI. narncly thüt in the determination of the Cotin-
cit, tacii o r exprcss, the dispute or situation niust be onc the continuanÿc of
w hich i~ ''iike{v io r*n(Iungrr mriinr~natireofiritcrriclfioncdpcnre und serririty".
If this kitter reqiiircmt-nt is nui sarisficd ihe C:ouncjl bas no basis for action '.
II was in Iàçt for this vcry reason thai Article 38 round ils way into thc Chartcr.
Thc inxri.ion of t hat Ariicle, which did not appcar in the original Duinhartoit
Oaks Proposais. was proposcd by t hc Sponsoring Governmen ts and molivated
as fol lows :
--
Vide Ross. A., Cuns;iirrri(>nofrke IrniredNnrions(IY50), p. 160; Goodrich. L. M.,
and Hambro, E..Cl~orferuJ the U n i r ~ d.Yurions, 2nd cd. ( 1949). pp. 102 and 238:
Goodrich and Sirnuns, riy. c i l . , p. 233: Jiménç~.dc Arcchaga, E., Yoritig ~anrtthr
IIondlin~of Dirpurcs in rlre Sccrrrify Cuüncii (19501, pp. 102 and 103-104; Kclsen.
op. NI., p. 404. Statemenfs to this cfhcct have frequenlly k n made in the procccdings
ofrhe Security Council itwlf. l'hus during consideration of ilie Curfu Charrriel
qircstion
". . . scvcral members ohserved t ha1 r h e Charter had circuinscri bcd the f~inc-
lions of thc C'ouncil by providins ibai i t rnight make rccornnicndations under
Articlc 36 on/-v w h ~ athe cuniinuunre r$ ljir dirpürc wns likrlv Io rndaiigeu Ihc
iirûint~~iiance of it~rert~oriortai pe<ice and secirriiy. The rnrisid~roriotrof any O thrr
dispule or sirrtntioii cnbvged rlie cotiipefrncu of i he Cottnril heiond !Ire lirnits
j i ~ - e d.'ifthe C l ~ a r r ~ r("K. ~ p r r o r of'pracric~
y Vol.
oj'Unirr.ci .Vorinn.s O Ï ~ U I L F , 11.
p. 28 J, para. 32.) {lialiçs etlded.}
For cxam~>Icsof staternents to sitriilar ~ K r cvide t also pp. 703-204, para. 35; p. 2 19,
vara. 9i ; p. 285. para. 38; p. 286, para. 41 ; p. 299, para. 73.
\RITTE < STATEMENT OF SOUTIf A ERICA 51 i
"The p u r p n . ~of thi:; arncndrncnt was 10give the Securjty Council, at
thc request of the parties to a dispute, tlie power to make remnimendations
concerning i ts scitlemeiit, ewtz i/'rhe liispl/ie iros nor o-f sticli n chnrncrer fins
ro cunsritiirr o i h v ~ o fto fhe pcuce. Lnder the Duri~bartonOaks Proposais
flic Seciiriw Cuivicil dib-iIJU? ps.i-ess uufhorir-v IO LIPaJ wiffi SIICII secunhry
d been :hoiight desirable t hirsro broadcn its compctcncc
t i i . ~ i ~ u f c . ~ ai tnhad '."
35. I t will thus lx apparent, both front ihc c l c x Iünguag of Chapter VI,
rcad with Article 24, and frorii the reIevant Irrrxroir.r pripumtoirrs, that the
powefi coitferred upun the Council in Artides 36 and 37 can bc invokcd by it
urzfyfor rhr piiu/losr IV't~ioiri:niliin~ p~ucemricl sec~trit-Yand t hen
!lie itir~r~~nriotinl
only in a cüsc wherc, in the opinion of the Council, the ~uintiniiiinceof a parti-
cular dispute or situation i.r IikeIy TO enllnngc*r lhat pmce iind xcmily. Thdt
being so, il is axiomatic that it cannor invoke thosc powers for aity other pur-
pose rvhatsocvcr.
36. Yet. it is suhmitted, ?hat is precjsely what the Council purportcd ta do -

when it adopted resoIiition 276 (1 970) and its two precursors. raolutions 264
(1 969) and 269 (1969). It is clcar frorn the irrnis of ~hwcresolutions and [he
debates preceding iheir adostion tkat the real purpose of the Churicil in adapt-
ing them was nuur io maintain international peace and security, but to secure
the rerno,vsI of thc South Afriçan authorities frorn S o u ~ hWesi Africa in order
to bring about the self-detemination and independence of the pcoplcs of thc
Territory in piirsuancz of th,: United Nations campaign againsl "coloniaIiçm" 2.
That is equalIy tnre of tthr: Gcncral AsscmbIy which, in drawing the atrcntion
of thc Security Couiicil ta its various resoIutions and urging it to "take all
effcctivc mcasiires . . . 10 crisure the imniediate withdrarval of South Afriwn
autharities frorn Namibia so as to cnablc NAmibia io attain inciepenctenw '",
w u clearly îar less concerried with the possihility of any threat to the peiim
than with enabling "rhc people of the Terrirory to cxc~ciscihc righi or self-
determination and to achieve indepcndcncc <'', and, to that end, wi th disçhag-
l UNCIO docs., \'el. X I I , p. 9. Thc proptnal *,as adopte4 in Cr~rntnittaeIII/Z,

with virtually n o disc~-ciissiun, t.y 31 voie:, tci O (ihid., rip. 15-1 6). Se alho the sraternent
of t hc Unitet1 Siatcs rcpresentaiive in ttiis G)rnniiitee (ibiJ.. p. 32) who considered
t hat-
".. . the Chuiicil shoula and inust intcrvcne in an). disputc which thrcaiçned
world peacc, but t11orit sitoirld nui possrrs stirh w u wifh utyard ro nli tli.vpuics,
siircc its conipererrce woirid tlwn hr riridttI? und itnnrcessari& expanded''. (Italics
addcd.)
Sec fur1ber lie surrimars repci1.i <if t he second meeting of r fie Colnrriiiiee CiCiid..P.284).
' Vide Chap. XI. Ma.
G A rcsolution 2303 {XXIil)+opcriitivc para. 4. fide al50 rcsolritions21 45 (XXI),
opcrativc para. 8: 2248 (S-V), scction IV, p a n , 5 ; 2375 (XXLI). operative para. 7 ;
2372 (XXII). opcrativc para. 13; 2403 {XXlII), oprative para. 3: 25t7 (XXIV}.
operaiive piira. 4.
' t i t i resulutioti 2t45 (XXI), uperniivc par-a. 6. Vidr also rewlutions 2249 (S-V),
prcambtilar para. 5 and sccs. 1aiid V I ; 2325 (XXII), ~rearnbularpiiras. 2 and 3 and
operative para. 6;2377 (XXII), prcainliiiilar para. 3 and upcrritivc paws. 5 , 10 and 13 :
2403 (XXIII), operative para:. 1 and 4; 25 17 (XXIV). preambutar para. 4 and opeia-
tive Tara. 1.
ing its "sreciai and direct responsibility toxvaids the people and the Terriiory
of South W e s t Africa '".
37. 1t vias thcsc purposn: that the Security Council sriught to implement
wheii i t adopted resotution 264 (1969). At the outset of the debaie rvhich led tu
the adoption of rhar rmoIiilion rhe Prcsident d the CounciI drcw the Council's
atrention to a [etter frotn the Secretary-Cienera12in which the fritter transmit14
the tcxt uf General Assernbly resalulion 2403 (XXEII), "drawing particular
attention to operativc paragraphs 3 and 4 which are of imnrediate coiiccrn to
the Securi:y CounciI 3". I'aragraph 3 of the resalution dreu, the attention of the
Council io the "serious situaiion whicti has arisen as u rcsull of ihr: illegal
n tNarnibia". Paragraph
prcsence and sciions of the Sou Ih African G ~ ~ c r n r n ein
4 reads as follows:
"Recommends ro the Security Council urgently to take al[ effective
rneawres, in accnrdance with the relevant provisions OS the Charter of the
Uniied Kations, to ensure the immcdiatc withdrawai of South African
authoritics from Narnibia su as criohle Afaniihia lo ailriin independetrce
in arcurdanre with rh~provisionsof'rrsaiutiuns 15 f 4 (XY)anci 2145 ( X X I j ."
(Itiilics added.)
During the ensuing dcbatc, the pre-occupation of the menibers of the Couiicil
with this objective became obvious. The first speaker, the repreçentative of
Algeria, desçribed the "fundamental qucstion confronting us todiiy" as "the
acioptioiz of prncficni nieans ro aiihiere our of)jectives, wfrich ure the ut:cession of
11ir Numi!*iun propie ia sowreignry a d rlie iruieperidetice of rknt couiitry 4."m
Thc rcprcxntütivç uf Pakistan. pointing out that the General Assembly had no
powers of cnforccmcnt, stated that it must turn to the Security Couircil to take
rneawres "iri nrder rn enohir Numibiu ro atrain inlippend~ncr'"and t hat on ly
sanctions would "cunvincc South Africa that the United Nations hau the will
and the ciipahility to ineet the challetige to ils cornpetence tu dt:<:ohrrize !Ihc
Territory
Thc rcprcscntat ivc of thc USSR dcclared that his country's ''oppouilion (O
coloriiafisrir and rncisin" and its "full sol idari ty with tlie peoples fighfirig fur
rhrir iib~rr;rion",wouId "dezernritiethe posiiion of rhe Soi,iei t'nion i n the prc~bfpin
of Namihiil '". Rcferring to a programme of rneasures propos4 by the USSR
in the Assembly, he considered tkat its irriplenientation-
". . . muid spced up ihe atiainmen t of ihe niait? nilieriire, lire finni objec-
iivr, the /ibcruiion of h h i b i a , and crcatc thc conditions in that country
which wouId enabte its population to settle its fate as i t secs fit 8". (Ilalics
added .)
The reprexntative of Finland statcd:
G A rrsolulion 2372 (XXiI), prcainbular para. 7. Vide also res<ilutirins 2145

(XXI), preambular pura. 9 and opcrativc para. 5 : 2248 (S-V), prei~nbularparas.
4 and 5 ; 2325 (XXII), oprraiivc paras. 7 and 8; 2498 (XXIV), prrambular para. 3 ;
2517 @XIV). preambular para. 4. See nlsv Chap. XI,Nijrn.
U N doc. 518943 (23 a r c . 1968). in SC, OR. Twenry-tliird Y e a r , Sup. for Oc-
toher-Decemher 1368, p. 179.
' U N drrc. S/PV. t 4G4 (20 M a r . 1969), pp. 7-10.
' Ihid., fip. 1 1-1 2.
lirid., pp. 54-55.
Ibid., fi.56.
U N dm. SiPV. 1465 (20 Mar. 19691,p. 12.
!hiri.. p. 22.
-'No progrcss whatsuevcr has heen made in United Nations efforts to
Iielp the peupic of hrnibin ta rrcki~ves~lj~de~ermi~wrion lind itrdepenrience.
The resolufions passed ty Ihe GeneraI Assernbly in the past two and a hatf
years since thc tcrrniniitian of the mandate have h d no practical efiect .. .
the Srcurify Cornci/ shnu1d now rnke rrp the srarch for prncrirril nnd cfcctirc
incons by whiçh t he Un i t tù Nat ions cntlfd discharge ils respnnsjiliiiiies for
'."
Natnibin n ~ i di f s people (Itaiics added.)
In rcsttifing the position of t i i ç Government, the United Kingdom rcpresenrative
reiterated an carlier statemrnt macle in the General Assembly where he had
said :
". . . let me state agaiii plainly that oitr inotirr. ouv nini, our determinalion
niirsr be zo set the pruplt. of South West Ajrica fice, frcc to advancc to thc
dcstiny of thcir vwn C~LCHCZ in fulf se&defern!ilrciliOn *". (Italics added.)
The representativeof the United Arab Republic ( a non-meniber of the Coiincil,
participating ai his own requist) assertcd t hat South Africa's continucd prcscncc
in and administration of Soiith Wcst Africa wrrs-
". . . an encroachment on the jurisdiction of thc United Nations and
defiancc of its ai~thority[and]an impediment in the way of fhejreeriorn of
the people. . . .
Coneqtiently, Ihe inimediate withdraival of South Africa froni rhe
Territory k o m c s thc niost fundamenta1 demand. if we tr-anl the people of
:%mibiu ta be fiee and jndepeltdenr 3." (ItaIiçs added.)
The representative of Piiraguay, a CO-sponsor of the draft resolution,
decIared:
"We must make iiw ;cf a11 the legal instrumenrs avaihble ta us and
hring t hem al1 t O h a r in ordcr tu enszrrr. th#the ~Vcimibiunpeopre wilf
efictirely rrnd secure/? be ubie to cxercisc their irialicnnbk righr fa se&
dcterminatiori,fiiti indep?ndence und sorerei~fily.. . .
Convinced t h a t every srep taken in thc righi direction . . . will serw cu. a
posifi~ecanrriburiun ru w m i s hastcning rhc hour of i%rnihia's independence,.
my delegation has joined .. . iii submitting . . . the draft resolution. We
r of rhe peopfe of lVamibia in r Aeir jusr and iegilimate
wrlirr ru ctrnrti ru ~ h uid
'."
aspirafion for fui/ fii&pcndet~c.eorid uniimiteri s o v ~ r e i g n ~
In the view of the representitiue of China, with the adoption of GeneraI As-
sembly resolution 2145 @XI) and Sccurity CounciI rcsoIution 746 (1968)-
". .. reafirming the inaficnable right of the people and the Territory of
South West A M c a tn frvedom and indcpendencc . . . ihe admiriistration of
Narnibiii carni: under the dixct resp-jnsibility of the United Nations
[and it] is incumbent, thzrefore, upon the Utiited Nations tn dischorfe rite
respnnsihifiiies~ h u sossi/inerlin such a manncr as tu rirnbie rke petipIt: rd ike
Trrritury tu exercise the r i d r of selfldcrerniirio~ionirnd to achie ve indepw-
dence as suon m possibk 5".
The staternents of the representativesof rhe United States [.Spain and Colom-
hia alsn indicatc that the purposc of the drüft rcsolution was Ihc atlainmcni
of freedorn aiid independencc by the people of Naini bia and the eradicatioii of
"coloniaiisrn" rathcr than the mainrenance or in[trnalional peace and seciiri ty.
'I'he satne purpose is nlso apparent from thc debstcs prcccding [tic adoption
of Scç~~rity Council resolutions 269 (1969) ' and 276 (1 970)
38. Moreovcr, ihc gcncraI conviction of the Council in [his connection is
reflected in the ternis af the relevant resolutions ivhich it finaIly adoptcd. Tt has
ülrcady bccn dcrnuns~riitcdt hdt these resoIiilions were based squarely upon tlie
"decision" of the Gencrat Assembly in paragraph 4 of its rcsoIut ion 2145 (XX[)
to terniinate the Mandate for South West Africa and to plaw the Terriiory
undcr th(: dirccl rcsponsibility of thc United Nalions, arid thai the meilsures
subsequeiitly adopted hy the Council were taken in pursuancc of that dcçision
and in or-Acr i o jmpIement i t !As wiIl be shown in Chapter X 1, irfia, the pur-
pow undcrly~ngthc dccision of thc Asscnibly was Io sccure a l ail custs 1hc
spedy indeliendence and self-determinatirin of the poples of South West
Africa as 2 honiogeneous wholc. The ternis or t h e resolutions oF the Securiry
Council reveal a like purpose.
Thi~sresolution 264 (1 969) imftirmed "the inalienable right of the pcople of
h-arnibia io freedom and independence" in accordance with General Assentbly
rcsolution 15 14 (XV) and a l w rcaffirmcd "its spccial rcsponsibilit y toivard the
people and tlie territory of Namibia "'. In resolution 269 (1969) thc Council
decidcd rhat rhe "continucd occupalion" of t fie Territory by South Africa
mnstituted "a denial of ihe poIitica1 sovereignty of thc pcoplc of Namibia Y",
rwogrii/ed "the Iegitimacy of ihe struggIe of the peopIe of Nrimibia against
the illegal prese-ence of thc South African aiirhorities in the territory '"",and
requested al1 States to "increase ieheir moral and matcrial assis~anw:to the
people of Narnibia in their struggleagainst foreign occupation "". And in
rcsolutioii 376 (1 970) the Council agüin rcafimed "the inaIienable right of the
people of Namibia to freedoni and independence recognizcd in Gcncral As-
sembly rcsoluticin 1514 m V )of 14 Deçernber 1960 "". Again tlie emphasis i s on
U N doc. SjPV. 1465 (20 Mar. 1969). p. 7.

ibid., p. 52.
Ibid., pp. 58-60,
*
V i d ~e.g.,
. the siatements or the reprcsrntaiives or Colornbia. U N doc. S!'PY.
1492 (30 July 19693, pp. 7, 8-10, 12: AIgcria. U N dac. SiTV. 1493 (4 Aug. 1969,
pp, 7. 8-14]: Pakisian, ihirl.. p . 21 ; lndia. a non-meniber of the Council, ibid., pp. 33,
34-35;thc USSR. U N doc. S;PV. 1494(6 Aug. 1961)). pp. I3,21: Hungary, UN doc.
SIPV. 1495 (8 Aug. 1969). pp. 4-5; Paraguay. ihld.. pp. 8-10; China, ibid., pp. 13-1 5.
F ( Icxamplcs
~ ride thc staternents of thc reprcscntativcs of Syria, UN duc. SiPV.
1528 (29 Jan. 1970). pp. 22, 26:Sicrra Lconc. ibid.. pp. 31 and 33; the CSSR, ibid..
pp. 52, S?-55: P(ilrincl, U N duc. SjPV. 1529 (30 Jan. 1970}, pp. 7-10. 12-13, 14-15 ;
Çolornbia, itid.. p. 27: Zarribia, ihid., p. 47: India, a lion-rnernber, ihid., pp. 33-35,
41 : Pakisian, also a non-meinber, ibid., p. 66.
l t may bbe notcd that tIie saine i s true of the dcbatc which led io iIie adoption of
rzsolutions 283 and 284 (1970). Vide U N doc. S/PV. 1550 {29 July 1970). pp. 41
tColonibia); 46, 47 (Syria); 51, 52 (Zan~bia): 57, SI -62, 66 (USSR); 66 (Pololantl).
V ' i d t paras. 2- 1 0, rlipuu.
Prearnbiilar para. 4.
Prcambular para. 6.
' 0pcr:itivc para. 3 .
' O Operativc para. 4.
" Opei-elivc para. 8.
" Prcirmbrilar para. 1.
WRITTEN STATEMENT OF SOUTH AFRICA 5I5
freedonr, independence and sclf-dctcrminiltion rather thsn on the mainrenançe
of iiiternational pcücc and sxurity.
39, On the other l-iand, there were some members of ihe Council who did
mainrain thal rhe situation in Soitth WCSIAfrica conslituied a threar to inter-
national pcücc and sccurity. Aiid in documcnt S,'9Q90 dated 14 March 1969 l,
addressed to the PI-esideniot'lfie Seçurity CoünciI, 46 membrr Stales in rrquest-
ing an iirgmi tiieeting of th*: Cuuncil, slutcd, inFer aliti:
"In spite of the dcçisions of ihe General Assenibly and ~ h eSecurily
Council, ihc Govcrninent of South .I\fricücontinues to maintain i ts occu-
pation of the territory uf Namibia, coiisrilurirtg rr R r n w lhrrrir r o iriter-
" (i t aliçs addcd.)
tic( rioiicil prucr criirf sec~~i.iti..
In the dcbatcs lcading ro r h ~ adoption of rcsolutions 264 i1969), 269 (1969) and
276 f 1970) various reaqons wert adva~icedfor the contention lhat the situation
in South Wcst Africa constituted a threat to international pcacc and s c ~ u r i t y .
These rasons Xere:
(i) South Africü's "iilcgal Fxcupation" of an international territory undcr ihc
di iect responsihility of ~ h eUnited Nations ';
(ii) South Africa's "systeniatic destruction of the uni& of the Narnibian
people and of the iintegrity of its tel-ritnry 3";
(iii) South ASrica's raciaI policies and i t s "violation" of hhurrian rights 4 ; and
(iv) So~tlhAfrica's "defiance" of rcsolutions or itie Gerieral Assembly and the
Sccitrity Coiincil 5 .
FIotever. despite these ex~iressionsof opinion hy ccrtain niernhers of the
€ciuncil, the terrns of iI-ie resnlutions cvcntually adopted by the Council certain-
ly do not indicatc that the Couiicil. qtin Co~incil,considercd thc situulion in
South West Africa t o be a rhreat t o international pcacc and security or Iikety
ro endanger thar peace and jccurity. On the contwry. and sjgnifjcanily in vicw
of the opinions of certain of its members, it studiously refraincd from saying
SC, OR, Tweniy-Tourrh Year, Sup. fvr January-Marcli 1969, pp. 126-127,
"ide sraternents made by thc rcprcsçotii~iresr?T Algeria, IJN OC. SjPV. 1464
(20 Mar. 1969). p. 12; Zambi;;, iIiid.. p. 21 and U N duc. SjPV. 1497 (12 Aug. 196Y),
p. 7: Nepal, L N dot. SjPV. 1454 (20 Mar. 1969). pp. 43-45 and U N doc. S!PV. 1493
f4 Aug. 19693, pp. 1 3- 1 5 and 1 7, and rhc United Arab Republic. not a membcr of the
Council, U X doc. SlPV, 146: (20Mar. 1969), p. 47. Colornt>ia.whilc not gving ~u
far as to aver thai South Africia's occupation of the Tcrritory çonstitutcd a threut 10
the pcacc, ncvcrthclcss considered that it was an elernent wliich "disturbrù" the
peacr: and hciphtcncd "iniern:itioiial tension". UN drtç. S/PV. 1465 (20 Mar. I969),
p. 61 and I ; S tloç. S/PV. 1492 (30 July 1969). p. 12.
Vide si ale nier il^ hy iltc 1-cpresentatives nF Algeria, U Y doc. S/PV. 1464 <20
Mar. 1969). p. 12; atid Iiidia. a non-mernhtr of the Council, UN doc. S/PV. 1493
(4 Aug. 19691, p. 33.
Vide staterncnts by the represeiitativcs of Zambia. U W doç. S/PV.-1464(20
Mar. 1969), p. 27 and LIN doc. S/PV. 1497 { 12 Aug. 19691, p. 6; Senepl. LN doc.
S:'PV. 14(~C2I)Mar. 1969),PIM.36 tu 3R-40 und Nepal. ibib.. p. 42. According to the
reprewntativz of Pakistan,'tltc sitiiution lield "rlie Iatcnt daiiger of racial war".
U N doç. S,!PV. 1464 (20 Mar. 1969), pp. 54-55.
' Yidr siaien:ents by the representalives of Jhe USSR. U N duc. S!PV. 1578
(29 Jan. 1970), p. 46 and foui. non-meinbers of the Criuncil-~ht United Aral-i Re-
public. U N dos. S(PV. 1 4 6 5 (20 Mar. IYGQ), p. 42: India, UN doc. SIPV. 1529
(30 Jan. 1970). p. 38; PirZiistan, ibid., pp. 48-50 and 5 1: and Turkcy. whose reprt-
sentaiive ~pcikeas President oi' thc Lniird Nat ions Council for "Nrrrnibia", UN doc.
S!PV. 1528 (29 Jan. 19701, Pr-. 1 1 and 12.
this. It coritined itseIf io say ing t h t it was rnindful of "rke grove rntiscqirences of
South Africa's conrinued occupation of Narnibia '" ; thai that occiipation
constjt u ted "uji ciggr~ssivreiicruachniett~on the nülharify of rlre Gnited iV'nrioiq
n viuhriorr r$ the rcrriroriuf integriry alid n detria! of the poiiricul srivcrcip- i f
the pcopk of :\'mnihia '";thnt that occupation "iri dcfiance of the relevant
United Nations resolutions and of the Lnited Nations Charter has grave torr-
scqrrcnces fur the riglits and Idizferesr.7 of the peopie oj' fYumihit~s" :and that "trie
defiant attitude of the Government of South Africci lowards ihe Council's
d ~ i s i o n sitnderrninrs the uurhorify of the Ciniied iVotiotzs "1 ln eswncit: thcn, the
CounciI assertcd that South Africs'r presence in South West Africa had grave
ccrnsequences for the people of South West ATrica and undcrrnind the authorily
of the United Kations. These assertions may or may not be consistent tvith a
finding or ùctcrrninatiun that the situation in South West Africa is one which is
"likely to endanger international peace and security" but thcy are not of thern-
selves indicative of rhe making of such a determination. C l a r l y thc Council
made no Express determination. Whether it can be said to have made a tncit
determination io this efrect is a conclusion to l x drawn frnrn the facts and
circumsta:~ces.And these, it is submitted, frrinl y negative any such mnclusion.
40. IRi:he fint pIace. the facl lhat the CounciI refuscd IO apply mcasurcs
under Chirpter V n of thc Charter, despite the pressure brought to k a r on i t hy
ccrtüin of its members j, l a d s to the inference that i t did iwt consider that there
existed any threat to the peam, b ~ a c hof the pcacc or act of aggrcssion.
In iht: s-cond placc, had the Coiinci[ considered that the situation in question
was one sven iikeIy lo effda~igrr inlemalional pcacc and sccurity, i t may be
assumed fhat in the circurnstanoes ir would have given a clearer indication of
this than 11 did in its rdcvant rcsolutions. As the debales show,i t was ccrtainly
iirged in t lis direction by certain of its members. But il deIibcratdy avoided and
siopped short of any assertion ro this effect and, instead, employed watercd-
d o m phrascs such as -'grave consquenees for the rights and interests of the
people of Nanlibia" and "agressive ençroiichment un thc authority of the
ünitcd Nations". Nor can it be said ihat the situation in question posed such
an obvioits or noturious thrcit to international peace as, in the opinion of
the cou ni:^], not even to require any conscivus dctcmination. Indeed, it wilI
appear friim the f x t s sei o u t in Chapter XI, infrn. tliat such a thrcat is. as a
matter of observabk fact, non-exisrent. Mormver, as will now be shown,
opinions in the CounciI were divided on thc rnattcr,
In the tiird place. analysis of the debates in the Council. shows thai of the 1 5
meinbers '' of thc Council ar consritiited when it discussed resolutions '64
(1969) and 269 (1469>9), only 5 (AIgcriit, Zmbia, Nepal, Scncgal and Pakistan '1
indicated that in their opinion the internationai peace was endangercd or likely
to be cnd-mgcrcd.And nf the members uf the Council as conslituted \&en i t
consideret1 remlut ion 276 (1970) and resolutions 283 and 284 (19701, only 4
(Zambia, the USSR, Nepal and Burüiidi) gave any such indication Most "
ResoIiition 254 (1969), prearnbular para. 5. (Italics added.)
a Resoliition 269 (1969), nperative pxra. 3. [lfalics added.)
ResoIiliion 276 (19701, operative para. 4. (Italics rtdded.)
' IbM, operaiive para. 3. {Italics added.)
Vide paras. 16-20, supra.
'.Excluding non-membcrs who participatcd in thc dcbatc at thsir own rcqucst.
' Thouph possibly 6 i l Columbia be includcd-vide lootnotc 6 on p. 514, supra.
A staicnient by tlie representaiive of Syria rnay possibly be s<i construcd how-
ever, UN doc. SIPV. 1528 (29 Jan. 19701, p. 21. There is nlso an oblique rcference tu
the question by the rcprescntatirie of Sierra Leone, ibid., p. 32.
W R I ~ E STATEMEKT
N OF SOUTH AFRICA 519
on any dispute wliich i t llas considered unless both parties concerned in
this dispute are hcard . . . the Srciirjt y Council cannot, wit hout a breach of
the Charter, take a dct,ision.. . unless it hears both parties direcily con-
'."
ccrncd in t h c disputc
The fundamental nature of ihcse thrce rcqiiircmcnts of narirral justice need nnt
be ernphasired furtlier.
44. Ir is submiited thar in su Far as the qucsiion of South West Africa is
concerried, the Securi ty Louncil hüs consistent ly violated al[ hese requirenicnrs.
As wilt appcar in Chaptcr XI, i i f i r , it made no artempt tn ascrrtüin thc truth of
rhe facts which the Snuth Afrimn Govcrnmcni frum lime to tirne piesented to
the United Nations in g e n e ~ dand to the Security CounciI in particiilar. A Ietier
from the South African Minister for Foreign Affairs '. in response to resolution
269 (IY6Y), was eithei' coniplctdy ignorcd or siniply d~smisscd-in the words of
the rcprcscntativc of Zomliia-as "a vuIuine of distortions and fatlacics"
containi~ig"the wildest or .*iId distortions 3". The representarive of Poland
saw i t as an attempt "to rlilutc thc ncmtivc answcr of South Africa in a tnaix o f
Icgiil arguments +", whilc th: represeiitative of Syria said of it:
"The aiit horities of South Africa deli bcratcly exalated their defiance of
thc Unitcd Nations IO nerv lieighfs of'cynicisni by trying tu prove, in their
Ietter . . . that the Niirtiibian pcopIe wcre reaping the benefits of rheir
henevnlent presenm, rcïsons usually sustaincd onIy by the iiioiall y batik-
rupt, blindcd by thc arLnoganceof epherneral power "."
At no time was it evcii. sugi:eçted [hai the facts sel oril in rhe letter sho~tldbe
inipariially appraised in order to e~tablishwhether or noi ihcy Neri: trtie.
Thai a large pari of thç relevant discumions in the Couneil was anything but
dispassionate is amply demrinstrated by the very language employed hy many
of its rnerribers. Gven a curscry reading of t he records of the debatfi reveals thai
thosc di5cussions tccmed with refrr'ences lu South Afriça and her policies in
South West Afriw in term:: such as "inhuman racist régime", "rape of Na-
mibia", "inhurnan atroçi t il?s", "intalerahle oppression", "deniented rascisi
réginie", "coloniiilist and racist policy", "sharncful crinie", "un bridled terror".
"inilitaristic vomciiy", "malicious intentions", ''base of aggression", "racial
ragc"-and so on nd nau*sr(mz.
Even the fundamental riilc ofnirdin/!a.nt~iparfaiîi was ignored tiy the Council.
Ii did nor ui any lime invite South Africa to participate in the disciissions
"
preceding the adoption of it: relevani resoliit ions notwithstanding that in tcrms
nf Article 32 of rhe t'hartcr It wüs boirnd t o do so On the othei- hand, it
allowed the Presideni for the time being of the "lliiited Narions Coiincil for
Namibia" to participate a i lengih in a11 ifs discirssions '.
45. 'I'he conclusion, thcn. is thaf sincc an üfirrnütivc determination by t hc
Security Coi~ncilin ternis ot' Article 34 of thc Charter is a condition precedent
lo any furlher action which it nias take tinder Article 36 ur 37-the only two
Articlcs itndcr which i t coiil-f hcrc havc actcd-and sincc tlie Council made no
-. -
l SC. O R , F-irst Ycür. Firi! Seri~<,No. 2, 32nd Meeting, 15 Apr. 1946, P. 124.
: Vide Annex C i o Chap. XI, iizfru.
UX doç. S/PV. 1527 (18 Izn. 1970). pp. 31 and 12.
U N doc. S!PY. 1529 (30 Jaii. 1970). p. II.
U:' doc. SjPV. I528 (79 Jan. 19701,p. 21.
Vide Chap. 117. sec. F. supra.
VidrSlPV. 1465 (20 Mar. 1B69), pp. 41-46: SlPV. 1492t3UJi11y 1969). pp. 6-13;
and S:PV. 1528 ( 2 9 J a n . I970), pp. 8110-th.
WRITTES STATEMENT OF SOUTH AFRICA 52 1
whcrc ihc Council is, for eitamplc, authorizcd to make a definitive deternii-
nation, i t inay presurnably (perhaps by way of warning) d o someihing Iess,
such as express its opinion -3r dcclarc its attiiudc on a matter '. In the former
case it may, itztcr alfa,"dçcirie" or "determine" or "declare" something; in the
latter it iiiay "consider" or "iesard" or "deem" something. Thc choicc ufwords
wiIl usually indicate the iritention of thc Cuuncil.
On the other hand, the la~tguageniay indicate that the Coiincil is purporting
io do stirnething more than i t is authorizcd by the Charter to do, Thc Council
rnay, for cxampk, "demand" or "cal1 upon" a Statc to take certain ineasLIres
in a case where the relevani protisions of the Charter auihorie if nierely IO
'-rccommend" the masure:. Hcrc the lringuage, taken by itself, purports to
rnjoin something but bccau je of the provisions or the Charter tlie apparent
injunction cannot amnunr lu inore than a recominendation As one author has'.
obscrvcd, where the aurhorizcd powcr is one OF recommendation, that power
cannot "k transmuted into a p w e r of binding docision Iiy a mere choice of
phraseology '-'.and the use uf peremptory langoage wu.ilI usually be found to
rcpresent an atternpt on the part of the Culincil to compensatc for an absence
of powcr. In this c z e the Iartguage oobscures rathcr than cIorifies the legal effect
of the resnlurion.
In ihc Iighi of these conddcrations, the juridicat nature and Icgd efl'wts of
the various parts of Swurity cl:r>uncil resotuticin 276 (1970) rnay now beanaiyçed.
48. The pream ble to rcwIution 276 (1970) consists of a series of reaffirma-
tions. T h are only statemt-nts,cs~n;iaIlyexplanatory in naturc, which &fine
the attitude of the Coiincil and cnnstitute the ostensible justifimtion for the
operative parts af the resvl~itionswhicIi ToIIow. They inay serve to clarify the
intcniions of the Council as cxpresseù in the operative pariigraphs and so be
employed as an aid in inter:nretatinn, but being mcrc statemenf s thcy neither
establish nor purport to esla blish any Iegal obligations.
49. Parügraph 1 of the orerative part of thc resoIution, in which the Coun-
cil- -
"Srrong/y cottdeiiins the 1-efusal of the Govcrnment of South Africa (O

cornply with Cieneral Ajsembly mr! Security <.'#unci1 resolutions penajn-
ing lo Namibia"
is clcarly no mvrc than, and does not purport to be more than, a nlcrc coridem-
natory statement---a declarz:fion of attitude on the part of the Council. As
such, i r impo$es no legal obligations.
In opcrativc parligraphs 2. 3 and 4, the Council:
"2. Decfar~sfhat the continucd prcscnçc of (lie South African authari-
tics in Namibia is ilkgal and that consequcntIy al1 acts takcn by tlie
Governrncnt of Soutt~tiTrica on behalf of or conccrning Naniibia after
ihe terminatinn of rhc niandatç arc ilkgal and invalid;
3. Decinrc.s/urther thirt the dzfiant attitude of the Govcrnmcnt of South
--
As Hlainç Sluïn. F.. in 'The Bindiirg Forcc of a 'Recomrncndaticln' of the
Gentml As.irmh y of the United Nltions", R. Y.H.I.L., Vol. X X V (1948}, p. 3.
puts i r : "Eveii where a body niay be cornFetent to rriîke a binding dwision it rnay
voluntarily liniit its action tu r omelhiop less."
It might, however. amouni tu sornethini: tes.< chan a rccommeiidation. 'I'hiis the
purported cxercise of a noncuistent power LO issue an injunction rnight be corn-
pfctely i ~ i t r av i r ~ xthe Colincil, and thetefore invalid -cvcn i f tlie Council, had i t so
wished, might have made a valid recoinmendation on the same subject.
IIalderman, J. W.,The United Arstiuons oiid the Raie uuJLuw CI966), p. 87.
572 NAMIK~A (wu-rn W ~ S TAFRICA)
Afric:a towards the Council's decisions undcrniines the authority of the
Cnited Nations;
4. Cu~isidcirsthai the continucd occupaiion or Ilarnibia hy rhe Ciovern-
nieni: of Soiith ALrica in defiance of the relevant Unilcd Nations resolu-
tions and of the Unitcd Nations Charter tias grave consequeiices for the
rights and intcrests of the people of Yümibia."
The expi-&on "declares" in operative paragraphs 2 and 3 appars lu have nu
'
other meaiiing [han "decidcs" and thc wholc (enor of tlie language of thesc
two paragrüphs indicites ttiat they are intended to be binding dccisions. They
arc c s x n t ially in t hc nature of definitive "findings'- or "dcterniinat ions" on
the part of ihe Council. In the first of thcsc two paragraphs the Couiicil has
purported to make a legal ftnding to the eiYect that Solith Africa's presence in
Sourh West Africa is illegal and dcwid of legal uinsequence: in the wcoiid i t
has purpsrted 10 niake a finding or fact.
Operative parag~aph4 may tyuiso Irt: intended as a binding decision-it repre-
scnis: eiiher. a legal or s factual fmding. On the other hand. hitving rcgard to
tlie cxprcssion "cnnsjders", t his paragraph miiy pertiaps be intended only as a
non-definitivc cxprcssiori of opinion or dedaration of altirude.
Again, it nia? be t h a t al1 three or itiese paragraphs iirc intcndcd to l x nut
findings or the Council itself, but nicrcly doclarafions of attitude made by the
Council in pursuancc uf purported defini tive findings of the GeneraI Assembly '.
Or lastly, tliey inüy bc intended 10 rcpresent recommendations addrcsscd to
South Africa-ihough the languiigc u x d rcnders t his al ternative most unlikcly.
II the parsgraphs were intended to be no more rhan dedarations of attitude
or non-definitive expressions of opinion they can have no Icgal ctfects since,
Icgally, ~ u c hdeclarations or expressions iirc rnerc neuiral statements wliich
more prtiperly bclong in ihc preatsimble than in the aperarivc part of ihe resolu-
riw. Ceitainly, they wouId not impose legxl obiigat ions.
If, on rhe olher hand. they were intcndcd by the Council to be definitive and
hinding detcrminations of law arid fact, as appears likely, they do not achieve
ihcir objcct. In the first place. although a finding or determination of ihc Cuuncil
may produce legal etfects in Ihe sense t hat i t rnizy in u proper case create the
conditinii precedciit for furthcr action by the Council (tg., whtre the Cotincil
dctcrmineç the existence of a thrcat to the F a c e in ternis oT Articlc 39). nwcr-
theless, alonc and of itself the finding imposes no Icgül obIigatioiis. Foi- obliga-
Lions to Row same furthcr aüi of rhe Council is iiecessary (c.g., an injiinction
to Statcs, based oir the finding, to takc mcasures in tetrns of Articlc 41). In the
second place, sinw in the prtsrni case the Council could only have acted uiider
Chapter VI of the Chartcr, and sincc Ai,ticle 34 is the only Article of tbat
Chaptcr which authori7es the CounciI to make a finding or deterniination, i t
coutd only have done this in conformity with thc pruvisioris of tliar Article.
And that Article aut horizcs only onc kind o f deterniination-tha~ the con-
tinuance o f a dispute or situation is likely to endanger the niaintcnancc or
! 1 t is i o te observed (liai in Securiry Council rcsolution 264 (11969)opcratirrc para-

graph 2, ihe Coünc~l". . . Cunsid~rsthat thc continucd presence of Sciiith Airica in
Namihia is illegaI . . ."TIiis appears to bc an cxprcssion ofcipinioii as opposed to rhe
definiiivt finding, introduced by the word rlpclur~.~. in opcrritive paragraph 2 of
resoluticin 276 (1970).
VirfE. c,g.. Cicnçrul Assembly res~ilutions2145 (XXI),<ivrati\.e para. 1;2372
{XXII), operiirive paras. 7 and 9 ;and 2403 (XXIII). opcraiibe para. 3. I n t hcse para-
graphs the Assernbly purports itr declnre Soiith Afriça's presence in South West
Afriça illçgul.
as a remnimendation and since i t cannot and ùoes not purpart t o be nrure
tlrari a recc>mrnendaiiun,it will hcrc bc treated as a recommendarion.
Assumirig then that borh paragraphs 5 and 7 of the resotiiticin in questiotl
crinstj~utere~-omniendations,what is their juridical nature and what arc thcir
legal cffcc:~?A recommendation is a forrn of advice or suggestion1 and its
cssentiai cnariicteristics are tliat it must bc addrcsxd to some person or body
and that il Ieaves to that pcrson or body a choice of action. By its very nature
i t cannot of itsclf impose upon those to whom it is addressed an obligation Io
h h a v e in cvnformity witIi il 2. As Judgc Winiarski has stated in the context of
the Charter:
"Kt.xommendations are never binding and thc United Nations must
in al1 its açtiviries cver have in view that i t s means of action are thus
Iirnited. . . .
It i 3 dificuit to see by what pruccss d reasoning recommendations
couId bt: held to bc binding on States which have not accepteci them. It
is diffcült to see how it can be conceived thal a reçorniirendation is par-
tially binding . . .
A recommendation tan have binding force and rhus iinpasc Icgal obligations,
only fhrorgh the owration of sonie rule of Iaw, as, for example, whcre thc
addresse tiinds hiinself in advance Io carry out the recornmenàations'. Under
the ChartCr, a recomnicndation of the Security CnunciI can only assume a
binding charactcr if a provision of the Charter operates ta invest it with that
character.
53. The conchisions rcaçhcd thus far indicate tkat of aII the parts of r m l u -
tion 276 (1970) onIy owrazive paragraphs 5 and 7 may impose IeçaI vbiigations
upon States" and dit follows thai only those two paragraphs may have tegal
consequen2m for States. The nature and extent of those consequencm will
now be cnnsidered.
54. The IegaI consequcnccs of opcrativc paragraph 5 of resoIution 276 (1970)

Acçording I o Jvdgc Bustamante in his dissenting opinion in Certain Expenses rd
rhe L;lrited Nutions, Adi,isory Opinion, i.C'. J . Reports I%2. p. 306:
"Thc word reccirnrnçndati«n implies suggestion, advice. advisatiility, üsefulncss,
but not an order or an imperaiive mandatc. togically, suggetion o r advice
cannoi normally be transforined into an r~biigaticin.''
Ihid, p. 250 (dissenting opinion of Judge Moreno Quintana); Kclsen, o p . tir..
pp. 195-196: Dahm, G., Yfilkerrerh?(I958),Vol. 1, p. 26; Pushrnin, E. A., "On rhe
Powcrs Mcdiation Activitics of the United Nations Security Counçil in Pcaceful
Scttlcmcnt of lnrernarional Disputes" (in Kiirsian with ~ n ~ l i Surnrnary),
sh Sovetskti
E~kenudnik Maihit~nurocinopoPtdva (Soviet Year-Book of International Law)
(USSR) (1 966-19671, p. 251 ; Coifu chonne!, Prefitninary Otrjrcfion, ~ a i d ~ i n e n t ,
1.C.J. Repurls 1947-1948. pp. 31-32 {joint separate opinion tif Jridges Bnsdevaril,
Alvarez. Wii~iarski,Zoricic, dc Yisscher, Badawi and Krylov) and pp. 33-34 (dis-
senting opiiiion o l Judge Daxncr).
1lisseni:ing opinion, Cerrarn Expenses O! the Unired Mat ions, Advisory Opinion.
I.C.J. K ~ p c r t s1962, pp. 233-234.
' Yi& Inierprc~falionufArtirk 3. Paragraph 2, ofthe Trearg u f l u u s a n n ~Advisos
,
Opiiiioa. 192.5, Y.C.'.I.J., Serips 8,No. i2, p. 27.
Untess paras.2,3 and 4 of the resoIutiun, or sunie of ihersl, arc to bc regarded as
W I T T E Y S A T E M E N T OF SOCTH AFItICA 525
ivill depcnd upon whether fhat paragraph is in its cssential nature an irnpcrative
injunction or nnty a rec~rr~mendatioii. As alreadp stated, i t may have been
intcndcd by ihe Councjl to bc either. However, since it could only havc bcen
adopted by the Coiincil undr:r Chapter VI of thc Charter and, more specificaIIy,
under the provisionc of Ariiciie 36 or 37 ' and sinm according to the wording of
t h o x Articles the C'ouncil is empowered ta "recornmcnd" and not to "cnjoin",
t h e question to bc dccided is whether there is any provision of the Charter
which m he said to invest suçh recotnniendations wilh bjnding force. The
only provisiciri fihich might appear 10 do so is Articlc 25 rvhich provides as
follows:
"The .Mcmbcrs of tht: United Nations agree to accept and ciirry out thc
decisions of the Sccurit:! Council in accordancc witli the present Charter."
The obligation itnposed iti this Article is "a specification of the general ohli-
gation of thc hletribers stiptilatcd in Article 2, paragraph 5: to givc the United
Nations every assistance in .iny action it takcs in accordance with the prcsent
Charter 2". 1t is generally agreed that tlie obligation extends only ta ciecisions
which arc taken in accordancc with the Charter '.
55. l'he pertinent question is whethcr the word "decisions" in ArticIe 25
mcans u / / decis~onsof thc (:ounciI in the wide sense or that term (and thus
including rccommcndiitions) or whcthcr i t meam only such dccisivnv us the
provisions of ihe Charter uiider which they are taken niay be said to charac-
terizc as obIigalory4.It is suhrniticd ihai the orily possible inierpretation is the
semnd one.
In [he first place, the word "recomrnend" which is the word used in Articlc
36, paragraph 1, and in ArticIc 37, paragraph 2, connotes in irs ordinas.
rneaning a form of advice oi suggestion, whjch, as already po~ntcdout 5, i s not
binding upon tliose to whorrt i r is addressed.
In the second place. it wa!. msdc clcar ui rhe Sail Francisco Conference thai
remmmendations undcr Cfiiipter VI of the Charier were to havc no binding
force, as the following exiract from the records of rhat Conference indiates:
"The WIegate of Belçiurn requested a more precise answcr to his pre-
viously pvsed question as to whether the terrn 'recoinniend' ('recom-
mander') in Chapier Vill. soction A [corresponding to the presenr Chapter
Vu, entniled oliiigat iotis ,for States, parties tu a dispute, or whether ir nrecint
orriy ~hdrr the Ckurrcif $:os aJkring c~dvirert.hkh niight or ?ni& not be
ncrcpr~d.
1-hc Dclcgatc of tlie IJnited States cxprcssed agrccmcnt wiih the views
of the Uelegate of the I.inited Kingdom. and said Iie had iniended ro ~iiakii
il rieur zhoi i n .rcrfiv~icl no cunpit/.vion or ~ a f o r c r i ~ W
~ Qn. ~ienvisngcd. . ..
rccommendations addrssed t t i Sourh Africn, which stems improbable when regard
is had to rhe essential characicristics of u reçciniineridation (vide para. 49, ~ i i p r a ) .
Vide narx. 33. +unru.
' et sen, o p . ci;., p. 97.
Ihid.. o. 95: Goodriçh anJ Harribro. m.rit.. ri. 208: Certain Expeiises of the
~ o r ~ f. C.J. ~ r i o v r iG61,
U t l i f ~ d i ü n . ~ , ' ~ d v i Opirikii, s p. 304 (disscnting opin iAn < i f
Judge Bustamante) :Shapira, P... "Tlie Security Coiincil Resotut ion of Xovrmher 22.
1967 Its Lcgal 'laturc arid Iiriplrcations", I s r a ~ i.irw l Rei'kw. Vol. 4, hl{>.2 (Apr.
1969). pp. 229-24i at pp. 232233.
Kejscn, Tur example. srate:. that the word -'decisions" in Ariicle 25 is arnbigucitrs
und çcinsidzrs e i ~ h r rinicrpretation possible (up. rit., pp. 293 and 444 er scq.).
' Vide para. 52, slipru.
l'he Dclcgate OF BeIgium stated that since i t now was clearly un&r.stood
that a reconimendatiori made by the Council under section A of Chaptcr
VI11 did no1 possess obligatory effect, he wished to withdnw tlie Helçian
ameridment '." (Italics added.)
The signifrcünm of this excerpt from the records of the Confei-ence inay be
deduced Srom rhe stalernent made by four Members of t his Coiirt in regard to
a conipürabIe encerpt from thosc rccordq relatinç to Article 4 of thc Charter.
They said, with refcrence to the pracii~u:c i l raorting to trcrsuiix prépirt~tt>;res
in the inti:rpretat~onof treaties:
". .. it must be admitted thai if ever there is a case in which this practice
is justified it is wlien those rvho ncgotiated thc trcaty havc cmbudicd in an
interpretativc rcsolution or some siinilai provision their precise intentions
regarding the rneaning attached by thern io a parriciilar article or the
treaiy '".
55. Moreover, il appears both frorn the jjuisprudencc: o f thc Court and
from the vicws of the publicists to be generalIy accepted tliat iecommendations
under<:h;ipter VI have na hinding lega:aIforcc. As one cornrnen:nratorhaç declared:
'-. . . it would sccrn evident that decisions of Ihe Security Cnuncil under
this .4rticle (251 do iiot include rccornnicndations rnadc by the Security
Couricil iinder Chaptcr VI. as, for example, iecommendations of appro-
priate procedures or methods of adjiistment undcr Arlicle 36 (1) or recom-
rnewfationçor terrris of scli~cmcntunder Arricle 37 (2). . . . Tt would x c n i
rcasonable, then, to lirnit 'decision' iinder Article 25 to those decisions hy
the Lecurity Council which by the terms of the articles under which they
are 1:iken create obligaiions for Memhers ?"
57. F k d I y , statcnimts made in the Security Councii iiself hear out this
interpreia.tionI . 'I'lie debate in coiinection with the Grcck Frontier Incidents
providef perhaps lhe best illusrratinn. 'I'here the question arosc whether a
dccision by thc Councii to conduct an investigation in terms of Article 34 was
UNCI0 ducs., Yril. XII, p , 66. l'ide also ibid., pp, 48. 162. 380 and j07; [Clid..
Vol. XI, p . 84; Goudriçh and Hrrmbro, op. cir., pp. 208-209; Kclscn, op. c i r , . p. 441,
footnore -3.
* Condirions of Admissioir of a Siarc ro Mpnibarslrip NI rile Utzited ,Vutiuns (rluricfc
4 of Charter), Advisory Upiriion, I.C.J. R ~ p o v t s1947-1348: p. 87 (joint dissenting
opinion OF Judgcs Rasdevant, Winiarski, McKiiir and R a d ) .
Goodrich and Hambri,. op. cil.. pp. 208-209. Vi& also Jirncnct.de Artchaga.
Yorirrg and f he Handliizg of Disprrie.i in ~ h S~ciirity
c Countri[, pp. 1 t 0-1 1 t ; hi'icholas,
H.Ci., f i t : UniredciNniions(19671, pp. 86-37; Di Quai, Id..1,e.s Efds des Résohirions
des Nutrorrs unie*^ (1967), pp. 79 and 81 ; VaIIlit, F., '*The Peaceful Scrtlcmcnt uf
Disputes", Canrhridge Essays itli Inrcrnurional Law (1 9651, pp. 161 - 1 62; Certrrin
Expenses of the United h'oiioi~s,Adt~isorvOpinion, 1.C.J. Rtpovis IY62. p. 295 (dilis-
seiitingopitiion iifJudge Hustamantc)and pp. 233-234(disentingopinion of Judge Wi-
ninrskt) ; Lorfu Clzunnel, Preliiiiinary Objt,çfiuiis.Judgnitnr. I.C.J. K ~ p o r l s194 7-1948,
pp. 31-32; Bindschedler. Recueil des cours, Vol. IO8,No. 1 (lii63), p. 345: Shapira,
Isruei 2,aiv H ~ r i r w ,Vol. 4, No. 2 (Apr. 196Y), pp. 231-232 and 235; Bentwich, Y..
and Marim. A., A C~ori~nciirury un d e Ciinrrer of the Uitind Nutivrrs (1951), p. 63 ;
Kahng, Tae Jin. Lnw. Pofirics rrnd rlir J'cctrrjry Counci! (1 9641, pp. 13-14 : Bowett,
D. W.,n i e l d w of Inzcrnlrrioirnl fnrtifrtlions (I963), p . 3 2 ; and Schwarzen berger,
CI.. A Muititul of lil~~rnniinnal Law. 5th rùiticin (1963), p. 297.
' Vide .limknez de Arkchaga, op. ci?., p. 1 1 1.
WRIT~LN
STATEMENT OF SOÜ'IH A ~ X I C A 527
a decision in ihe sense of Article 25 or merely a recnmmendation. Those mcm-
bers of the Council opposcrf to the cstabIishmerit or the commission argued
that al1 resoltitions under Chpter VI were mcrely recommendations and that
States which did not c a r y them oui bore only a moral rcspunsibiIiiy ; that ir
WBS unly measurcs undcr Chapter VJI which look on a binding quality; that
the singular nature of the Iittcr nieasures wcrc attesrcd in Article 2 (7) which
affirriied thc prinçiple of rton-intervcnlion in matters csscntiaIly within the
doniestic jurisdictiun ofaSiate sova in the application of enforccmcnt rneasurm
under Chzipter VI I; and th:it if Chapter VX measiires were ohligatoy, ii State
which faifcd to cornply with tliern would autornatically bc Iiable to other mta-
sures of a compulsory cha;rcter- in which cvent Chaliter V I wotild Iase its
signifieance and meaning.
?-hase rncnibcrx who jiiiruutrred the eslablish~nentof a commission did not
dcny ttiese propositions cxcept in regard to a dctcniiinat ion under Article 34,
which they considered in bt: a binding decision. It was slated rhat Chapter VI
conkrred two distinct powcrs upon the Council-the powcr of conciliation
and thc power of investiguian. The conciliatory powtrs "could not be cnforwd
upoit the Statcs concern.:d". This purver, "by definition, couid not encrvach
upon what the various Statrs rniglit finally decidt to accept or rcjcct. It implicd
voluntary CO-operation. . .'"
58. It is submitted, then. that ti recornmendatioil under Chapter VI is not
a "decision" within rhc nnii:aning of Article 25 and rhat ihcrcforc it kas no
binding f m c fur rhe State: to which it is addresxd. Thrit bzing so, whatever
tlie intention of the Cotincil niight have &en, paragraph 5 of resolution 276
{1970) cannot be chsractcrizcd as air injuncrion bui can only bc a rccommcn-
dation. II follorvs that ihat paragraph as i f I l as paragraph 7 of the resolution,
which can also be no inon: than a r~orniiiendation2. dms not inipose upon
"al1 States" the obiigativn tu comply with lheir ternls.
59. Thai i s not to say, howcver, that rhcsc twu pangraphs have no effcct
whatsocver. Fur Artide 2 , paragrüph 2, of the Chartcr imposes upon ail hlern-
bers of rhe Oganizntion thc duty to"fu1fil in good fairh the obiigaiios assumed
by thcm in accordance wii h the present Chartcr". And the requirements af
gocd faith woiilà seein to postulatc that srleinber States should consider recom-
niendarions seriouslyand i~ good faith3 and decide for themxlves whethcr ta
iiiiplcnicnt thern or not.
GO. The conclusion is that only operative pardgraphs 5 and 7 of Security

Couneil resolution 276 (1970) can have le& consequenccs fur States. S i n e .
however, the paragraphs in question embody mcre reco~nmendatiommade by
the CounciI iindcr the prot'isions tif Chapter V I of the Charter and sinci: such
recommendations do not involve a binding I e g t obligation to con~p[ywilh
ihcrn, States are not ohligt:d to give effect to t heir provisions. The only con-
' Rtprrfory of Unirrd 12:a1fonsPracrire, Vol. II (19551, pp. 231-239. paras. 46-47.
Vidccpara. 49, sIrprn.
In Vofinf Proredurr on .zi;rstions rehting to Repuris a d Pet irions conccrni~ig
!lie Terri1or.v of South Wesr Afiiru, Advisury Opinion, I.C.J. Rtwrts 1955, p. 88,
Judgc Klatstad in his separzte opinion statcd tha: "a duiy of such a nature, how-
exderreal and scrious it may bç. çan hardty be considered as inculving a true lrgal
obligation". Vicie, howcrer, the scparate opinion of Judgc 1.aulçrpaclit (ibki., pp.
118-119).
sequene!: which the resoIution has for Statcs is, thcrcfore, t'riat such States as
are Mernkrs of the United Nations Organization should consider the rwcim-
mcndafions wntained in paragraphs 5 and 7 in gooù faith and decide for:hem-
selves whether or not to carry ihcm out.
41. For the reasons set out in this Chapter, it is suhinitted that al1 the relevant
rcsolutio~isof the Security ClriunciI, and in particiilar resdurion 276 119701,
are invahi and of tiu legal effeci in ihat thcy arc bascd upon Cineral Assembly
resolutiort 2145 {XXI) which is itscif invalid; that the CounciI resolutivns wcre
in m y cvcnt invalid hecause ihey were not adopted in confomiity with the
provisions of Chapter VI of the Cnarier-which was thc onIy chapter under
which the Council could have acted; and that in so far as resolution 276 (1970)
is conccnicd, even if it can be said to Iic valid, onIy ih upcrativc paragraphs 5
and 7 cari have Iegal consequcnces for States and then anly to the extent that
States shiiuId consider the recornniendations wntaiited thtrcin in good faith
and decide for thernselves whether to implament thern or not.
The Securily Cuuncil,
Reafirmirig the inalienatde right of the people of Narnibia to freedon~and
independence recognizd in Gcncral Assenibly resolution 1514 (XV) of 14
ikcember 19W,
Reufirniirzg Gei~eraIAssl:mbly resoIiition 2 145 (XX 1) of 27 ûctober 1966,
by whiçh the Unired Narions dccidcd thai the mantaie of South-West ATrim
was terminatcd and assumed direct responsibility for the territory until ifs
independence,
Renfirmilig Security Co;incil raolution 264 (1969) which rocognized rbe
termination of thc mandat€.and called upon the Goverriment of South Africa
iitimediateiy to withdraw its adminbrration frorn the tcrritov,
Reufirining that the extt:nsion and etiforement of South African Iaws in
thc tcrritory togcther with the continued detentions, trials and subsequent
sentencing of Namibians b!. the Government nf South Afriw constitutc iIlegal
acts and flagrant violations of ihc rights of the Kamibians concerned, the
Universal Dcclarütion of Hunian Kights and of the international status of the
teriitory, noiv under direct United Nations responsibility,
Rccailing Security Council rcsnlut ion 269 (1969),
1. S i r o n ~ l jcondenins
~ the refusal of the Government of South Africa ta
camply with General Asçenrbly and Security CounciI resdutions perraining to
h'amibia;
2. Drciares that thc conrinued presence of the South African authorities in
Namibia is illegal and that coriseguently ail acts takcn by the Government of
Soiith Africa on behalf of cir conccrning Narnibia after the termination of thc
rnandaie are iIIegal and invnlid ;
3. Derrlures jurther that the defian1 attitude of the Government of Souih
Africa towards the Council's decisions undcrmines the authority of the United
Nat ions;
4. Con~iderstliat the coniiniied occupation of Namibia by the Governmmt
of South Africa in defmnce of thc rclcvant United Nations resoIutjons and of
the United Nations Charter lias grave consequenccs fur the rights and interests
of the people of Karnibia;
5 . Calis upon al1 S t a t e s , pürticuIarly those which have ecanarnic and othec
intcrcsts in Narnibia, ru rt.frain fronl any deaIings with the Governn-ient of
South Africa which are intonsistent with operative pardgraph 2 of this reso-
lution;
5. Decides 10 esiublish iii accordancc with rule 28 af [he provisional rules
of procedure an ad hoc sub-mmrnittee of thc Ctiuncil to study, in comu1tation
wit h the Secrerary-General, ways and means by which the relevant resolutions
of the Cwncil, including th: prescnr resolution, can he egectively in~plemented
in accordance with the apprripriaie provisions of the Charter, in the Iight of
the flagrant refusal af South Africa to withdraw from Narnibia, and to subrnit
its rewmmendations by 30 ApriI 1970;
7. Rcqü~stsal1 Slates as welI as thc speciiiiized agencies and other rclcrtint
Unitcd Niitions organs to givc thc sub-cornmittee al1 the inforriiation and other
assistance tlrat it may require in pursuance of this rcsolution;
8- Furtlter requcsrs the Secretary-Gcneral to give every assistance to the
sub-mrnniittcc in thc pcrformüncc of its task ;
9. D e c i , f ~to
. ~ reçume consideration of the question of Narnibiii as soon as
the recommendalions of the sii b-comrnittee have been made avaiIabIe.
(UN duc. S/RES/276 (19701, 30 Jan. 1970.)
\VItIT'I E?4 STATEMkN-1 OF SOUTH AFRICA
1. GcneraL AssembIy ies~ilulion2145 IXXI) reads as fobiows:

"The Geticrnl Asseri?ii[v,
Heaffirnting the inahenable righi of the people of Çoi~ihWest Africa to
freednrn and inrlependcnce in accordancc: with the Charter of rhe United
Nations, General Assernbly remlution 1514 (XVJ of 14 T>ecernkr 19bû
and carlier Aswrnbly i.esolutions concerning ihe Mandatcd Territory of
South Wcsl Arricü,
Rcc(rl/iirg the advisory opinion of the InrernationiiI Court of Justice of
1 1 JuIy 1950, acccpted :7y the GcneraI Assernbly in its rcsolution 449 A (V)
of 13 Dcccmbcr 1950,znd the advisory opinions o17 June 1955 a n d 1 June
1956 as well as the judg-rncni of 21 Decernber 1962, which have established
the fact thal Soüt h Africa continues to have obIigtions under the Mandale
which was cntrustcd io it on 17 Dcccniber 1920 and that the Iliiited
Nations as the siiccesstir to the League of Nations kas supervisory powen
in respcci of South Wtst Africa,
Ciravely coticerncd at the si tuar ion in the Mandared Territory, wtiich has
scriousIy deteriorafed fbilorving the judgement af thc Interiiational Court
of Justice, of 15 July 1966,
Ifdriii,o siudi~dthe rcports of the various cornmirtees which had k e n
establiskd to exercise the supcrvisosy funcrions of the United Nations
over the adrriinistratiori of tlie Mandated Terrilory of Sot~thWest Africit,
Conviticed that the administration of thc hfandated Territory by South
Africa has k e n cond?icted in a nlanner contrary to the Mandate, the
.Charter of the United Natioiis and the Univcrsal neclaration o f Human
Rights,
Reaffirtnin~~ its resolirtion 2074 (XX) of 17 k e m k r 1965,in particular
paragraph 4 thercaf wtiich condemncd the policies of apartheid and racial
discrimination practis<:d by the Ciovcrnrnent of Soiith Afriça in South
XYcst Africa as constitiiting a crirrie against humanity,
E?nphasiïing that th.: problen~of Soulh Wcsl Africa is an issue FalIing
within the tcrms of Gcneral Assenibly rcsolution 1514 (XV),
Curi~iu'eritl~qrhnt alI the cfforts of tlie United Narions to indiice the
Govcrnment of South Africa to fulfiI its obligations in respect of the
administration of the Mandaied 'lemitory and ro ensure the welI-king
and security of the indigenous inhabitants have k c n of tio avail,
1C3in1,fufof thc obligations of the United Nations toi~ardsthe pcciple of
South West Africa,
.NVfing n'itir d w p coItcertI the explosive situation which cxisis in thc
southern region of Africa,
Afirniing its right to take appropriatc action in the n i a t t c r , ~ ~ c l u d i n g . t k
right to revert to ilself thc administration of the Mandated Territory,
1 . Renffiutns that the provisions of GenerüI Assembly resolütion I5I4
(XV) arc fully applic;ible to the peopLc of the Mandatcd Territory of
532 NAMIBIA (SOUTH WFST AFRICA)
Soutli West Africa and that, therefore, the people of Souilt West Africa
have the inaiienabIc right to self-dctcrmination, freedorn and independencc
in act:ordance with the Charim of the U n i i d Nations;
2. Rcufirtiisfurfber that South West Africa is a territory havjng inter-
nariona[ status and that it shail maintaiti this starus until it achieves
independence;
3. Dedures that South Africa i a s failed ta fuliiI its obligations in
rcspwt of the addininisiration of the Mandaled Tcrritoiy and to ensurc the
moral and niaterial welI-king and socurity of the indigenous inhabitants
of South Wcst Africa and ha?,in facr, disavowed ihc Mandate;
4. Decides thai the Mandatcconferred upon His Britannic Majssty to l x
exerciçed on his bchalf by the Govcrnnicnt of the Union of South Africa
is ihcrcforc terminated. t h t South Africa l i a s no other right to adrninister
the Ierritory and thal hcnceforth Soiith Wesr Africa cornes undcr thc
direcl responsibiliry of the United Nat ions;
5. RcsoIves that in these circunrstances ihc Unitcd Nations mirst
dischiirge those respunsibilitics wit h respect to South West Africa;
6. Esrubiiches an Ad Hoc r~mrnittccfor Sourh West Africa+on~posed
of forirtccn Member Srares to be designated by the Frcsident of the Cheral
Asscr-~bly-ta recommend practical means by which South West Afriça
should be administered, so as io cnable the peapIe of the Territory to
exercist thc right of self-determination and to achicvc independence, and
to report fo the General Aswrntiiy at a speçial sessioii as soon as possiblc
and i!i an); event not Iater than April 1967;
7. Calls upoti the Ciovernment of Çouth Aftica forthwith tri refrain and
desist froin any action, constitutiorial. aùmjnistrarive, politica! orolkm~ix,
which wiII in m y manner whatsmver alter or tend to alter the present
in~crnationaIstatus of Soulh West Africn;
8. CnfIs fht. nt#et~riorrof thc Security Council to the present resolutiun;
9. .Rrqüesrs al1 States to extend their whotehearted CO-operationand to
rendcr assistance in the implementation of thc prcscnt resolrition;
10. Requests thc Sccrctary-Ciencra! to provide al1 the assistance noces.
sary ta implernent tlie piesent resolution and ro enable the Ad Hoc Corn-
rnittcc for Snuth West Africa to perforrri its dutics '."
The cmx of this resolution Iies in operative paragiaph 4. the IeigaI effwt of
which (if any) will be considerd in the presept and succwdingchapters of this
written stiitcrncnt.
7. It is necessary at ~ h outçet
e to have clarity as to the capaciiy in which thc
General AssernbIy purported to act in passing resnIution 2145 (XXI), and iir
particular whcihcr the Cieneral Asseinbly clainid the authority to take the
action in ~[üestionotherwiçe thün as piirported succcssor to the Council of ihe
Lcague of Nations as supcrvisory authority in respct of the Mandate for
South Wrri Africa.
The resolution itself contains refcrences to conduct allegedly contrary to the
Charter aiid the Universal DccIaration of Human Kighrs and pkaces con-
siderable eitiphasis on Gneral Assembly resolution 1514 (XV) of 14 Dewrnber
1950 {Declaration on the Graniiny of lndependence to CoIoniat Countries and
-
'C A r~jolution2145 (XXI), 21 Oct. 1966, in GA, O R . Twenty-First Sess.. Sup.
NO.16 fA/5316),pp. 2-3.
= Pream 5ular pars. 5.
'.
Pcoplrs) 1-iorvevcr, if resc+lution7145 (XXO is rhid as a wholc; it is apparcnt
that thc GcneraI Assernbly d ~ dno1 reIy on thc Chartcr and the turi Uecla-
rations as by therriselvcs providing authority for the measures set oti t in
operative paragraph 4 of the iesoIution. Thus the prearnbie rccalb thc 1950,
1955 and 1956 Opinions aad 1952 Jtidginent of this Cotirt which are said to
hiive "estahlished the fact that South Afrjca continues to have obIigations
under rhe Mandate ... and that the United Nations as the succcssor t o thc
LRague of Nations has siipiruisory powers in respect of Soulii West Africa 3";
it expresses concern at the '+situationin the Mandated Territory 4"; it refers to
tlre reports of the various c,ommittees"which had k e n established to exercisc
the supervisory furrctioiis ol'the United Nations" aver the administration of the
Tcrritory \ it expresxs a cc.nviction that rhe adrninist ration of the Territory has
been conducted "in a nianner coiltnry to the Mandate. the Charter. . . and thc
Univeru1 Dcclariition of Elurnan Rigiits "" and it considers that the efforts of
thc United Nations to induce thc Govcrnment of South Africa to fulfit "its
obligations in respect of thi: adiniiiistriition of thc Mandated Territory . . . have
k e n of no avai17". The mlin ernphasis in the preamble is on the existence of
the Mandate; on supervisc~rypowcrs in respect thereof, said to be exerciçable
by the General AsfembIy; aiid on alleged violations of Ihe Mandate ribIigations
by South Africa. This apptars a150 from the owrative part of the resolutian,
particularly paragraphs 2 and 3, Icading up to 4. ,
3. It is apparent thecefore that the General AsscmbIy purpnried to exercisc a
power of tcrminirting fin the senw of revokingj8 the Marldate which i t con-
sidered appertained to it :is successor to the supervisory powers previously
vested in the Council of thc League of Nations. The references to thc two
DecIaratians and thc Charter wcrc prubably intended ta bolsier the conteiition
that South Africa had committed a brcach of ihe hlandatc, and to justify the
remcdial action envisaged irl the resolution: thcy do not appear to have hy:n
offered as providing a IegaI basis indcpcndent of the Mandate ror the Assernbly's
action in operative paragraph 4.
4. It is, indeed, clear that any rcliance o n the said instruments as an in-
dependent hasis for thc action of the Ceneml AssembIy wouId have heen
rnisconceived. Rreaches of the Charter would nol by t h e m s c l v ~have entitled
the GencraI Assembly to sever the bonds between a State and a territory subject
to ils controt, or to bring sgch a territory under the direct rcsponçibility of the
'.
Unitcd Nations. The Charter ctearly dnes not k t o w such pomrcrs The same
applies to the Universal Drxlarciiion of Iluinan Rights, which in fact dacs not
purport tri grant any poi~ei'sat al1 iu the General Asswnbiy or wen to impose
Yi& preambiilar paras. 1 and 7 and operative para. 1. The texr of the lattcr
resoliition is atiachçd as an aiincx to this Chapter and thc background to its adoption
is skctched in Chap. X i belcaw.
* Le., the Univeru1 Dwl.~raiionof Human Xights and thc hclaration <in the
Granting of Independence r i ) Colonial Countries and Pet~plcs.
' Second preambular paril.
Third preambufar para.
V o u r t h prcarnbular par:,.
Fifth prcarnbular para.
Eighth preambular p m .
a Firit: CIiap. VIT. para. 65, injirr.
As to tlie powers of [he Gcncrcil Assernbly in respect of matters such as thcsc.
?ide Chapter X. in&. Pa~ti:ular puwers of the Sem~rizyCourtcil and ttic Gcneral
Assenibly to suspend or tcrminate mernbersliip of the United Nations in cases or
breaches of the Charter (Arls. 5 and 6) arc not relevant tn the prcscnt topiç.
Iegal nblipatiorison Mcrnbers of the Criiied Nations. And whattvcr rccommeii-
daiory cifcct thc Declaraiion on rhe Granting uT Indcpcndence io CoIoniaI
Countries and PeopIcs rnay have as a ïesolution of the Gencrül Asscrnbly '.
it does ntit seck to impose obligations or confer aitthority on the GeiieraI
AsscnibIy,
5. I t js iiccordinyly on a cliiirn of sripervi.sor~pon~ers
in ~-esp~ct
of ihc Mandate
for South West Africa that resolution 2115 (XXl) was sought to he based.
Thc Gene-a1 Assenibly did nor purport to act by virtue of any other ripht or in
any otfier capricity. In particular, it must be empliasircd that thc Generiil
Aswmbly did not purport to aci us ü conirnc!tui(pnrt~to ü mandate treaty and
to termin:ite siich treaty by reason of an allcgcd material brsach ihcrcor by
South Afr m. Tndeed, this Cotir[ itself hris never round ihat the United Nations
was a püi-ty to any rnitndotc "ircaty''. On thc contrary, the findings of rhc
Court (particularly whcn ovcrruting t lie South African Preliniinary Objcct ions
in 1962) iriiplicitIy rcfute any such notion. This aspect will bL- furthcrconsidered
in the s~icrzediiigparagraphs.
6. Wheti the legal position relative tu the Mandate for South West Africa
first cirrnc ~cfvrcthe Court in 1950, the Court wesconemed mcrcly to iiscertain
wherher the Mandate was siill in cxistence, and, if $0,w k i t the international
ohligationi of South Africa were in respecl t hereaf 2. 'The Court disiingiiishcd
between Iwo typcs nf obligations oriyinally assunied undcr ihc Mandate, as
follows:
''0.1~ kind was directly wlated to the adrriinistration of thc Territory,
and owresponded to thc sacred trust ~Tciviliziitionreferred to in Article 22
of thr: Covcnant. The other relaied ru the niachinery Tor irnplen~entation
and iviis closely Iinked to the supervision and canfrut o f thc League. 1 t
corresponded Io rhc 'xcurities for the pcrforinance of tliis triist. referred
t O in the samc article "."
As regards the former clnss, 1 he Coiirt said :
"Since their fulfilmeiit did not depcnd on the existence of the League of
Nations, they cotild-nut be brought to an end mcrcly hwause rhis suwr-
uiso1.j- orgiin ccascd to exisr '."
In Ihe words of Sir Arnold McNair:
"Iii short, the Mandate created a s l a t a for South-West Africa. This
façt is important iii assessing thc cffcct of the dissolution of [he Leagt~e.
This statiis-valiù iir rem -supplies the elenient of permanence kvhich
\vould tnablc the Iegal condition of the Territory to surr~iveihe diçappcar-
ance of the League, even iT thert: wcrc no siirviving persona1 obligations
betireen the Union and othcr former Mcmbcrs of the League 5."
Tn its reasoriing and finding on this aspect, the Court did not consider
wiieiher rIic obIigatioiis in quesiion Jcrivcd their legal effect from international
' Vide <:hap. X, irifru, as to the recornmendatory eIïect of Gçnçral Assrmbly

rcsolutions (save f o r immatcrial exczprions).
Inr~rnurionaiStorir.r of Sorrrh IVt,sr Africu, Adi~jsoyvOpinion. I.C.J . R~porrs1950.
p. 129.
Ibid.. p. 133. S ~ m i l a rdistinctions wcrr drawn in thc scpwratc opinions of Judge
McXair a i pp. 156-157 and 158, and J u d g Rend at pp. 164-165.
' [hiri, p. 133.
11id., fip. 156-157. Vide also Judge Read at pp. 165-166.
WI1I'I-I'EV STATCMEST OF SOUTII A i X I C A 535
agreement ;who the parties to uny sucti ugreeriient niight have been ; or whether
any such agrccnicai (as distinct rrom rights and obligations which had already
iicçrued tliereunderj hüd siirvivtd the dissoliirion of the League aî Nations.
These qucstions weie irrele3fantto thc C O ~ i r t ' s tüsk on ihut owdsiu~.
7. As regards thc xcond rlass of obligations, the Court hcld that siiprvisory
firnctiorls wei'e to he exercised by the United Nations, to which thc unnual
reports were io be subniirted. This fnding wiH hr: deail witIi in detail beluw '.
At prrsent it wiIl sufficc lo riote that atthough tlie Court apparenrly reached its
çonclusiori by iiiiplying ail agreement aniong certain Stares (including South
Africa) in 1945-1946 to efkct a substituiion of supervisiiry orgaras, the Coiiri
did not specifically üdvcrt t u the question wha the parties to such an agreenient
wcrc. Agaiii tliis question M,as no1 d i r ~ t l yrelevant 10 the Court's task.
8. The qucstions whether the Mrindatc dcrivcd its IcgaI forw and effect from
agreement, and, if so, who the parties to ail): suc11 agreement wcre, both &fore
and aficr the dissulirtioti uf the League, utre first pertinenily raiscd in the
Prelirriiiiary Objeç~ionsin ihe Smirlt JYESI Af~icnCUSCS. Thcy bccüi-tie of im-
portance by reason of Artii:Le 37 of the Court's Statute which effeçred a sub-
stitution of Courls where ":iireaty or convention in force" provided for d e r -
eiice of a matter to the Pcrmanenr Court of Intcrnationsl Justice. Çuch a
reference was contained in Articlc 7 (2'1 of ihc Mandate in respecl of "any
dispute whütcvcr . . . bciwçcn the .Mandatory and anorher Mernber o f thc
League of Nations".
The South Afric;in contentions in !he Prelirninaiy Objection broceedings uere
lin so far as rclcvant} ~ h a tIict Mandate nevcr was a treaty or convention, but
uwed its IegaI force to an administrative or qcirisi-Iegislaiivc act of the CounciI
or the k ü g u e acting in ternis of ArticIc 22 (81 of ~ h Covenant,
e Aiternatively,
it was contended, il thc Maridate had been a rrcaty or convcntion al its inccp-
tiun, it iiu longer wx3 in force ns a rrrrrify or ronvetiiio~~ after dissolution of the
Lcague (whatever mighi h;.ve k n thc position of ils "real" or "objective"
aspects) since the only possible parties thereto (save South Africa itselfl wcrc
thc Lcague as an insii(utiot,and its Membzrs in their capacities as such, al1 of
which worild have faIIen away as partics on dissoIuiicin of the Ixague. More-
over, i r was mntended. ther? was, after such dissolution, no iongcr any "mcm-
ber u l the 1,eague of Natioris" entirled lo invoke Article 7 (2) of thc Mandate.
9. The Applicanrs (Ethiopia and Libcria) contcnded that the Mandate had
from i t s inception k e n a treaty or convention conferring rights and intercsts on
the Leilgue and its M e n ~ b e z .O n ùissoluiion of the League of 'Jatioiis. they
contendcd. it mmaincd a treaty or convcntion on ont: or iwo alternative bases,
viz.. on the b a s i ~eirlier that :i succession had occui-rcdof the United Nat ions and
its Mernbcrs to the rights and intcresrs previously enjoyed by thc Lcague and its
Members, or, ait~rrinriveiy,ihat the S i a m Mcmbcrs or the 1,eague a l irs disso-
lution remained vmted with rights in their individual capacitiir as partics Io a
mandate agreernetit =.
IO. The Coiirt held in 1962 rhat rhc Mandatc had initially k e n an agreement
"betivcen the Mandatory iind the CounciI representing the l ~ a g u cand its
Meinbers "' aiid said:
.
"The Mandate fnr Sliuth N'est Al'rica . . is an international instrument
Virtr* Chap. LX,infia.

fide I.C.I. PCeoditqr. Sr,riili Wcs-f Africu, Vol. I. pp. 443-449 (Observations).
-' Soutjz M'es1 Afiira. Yrefitiii:intrr~Ohjt~ctionr.J u d ~ i ~ nI.C.J. .
r , Rrpor~s1962, p. 3 3 1
WR1îTfi.r: SI'ATEMENT OF SOUTH AFRICA 537
14. A rurther Factor in support of thc conclusion stattd in the irnniediatcly pre-
ceding paragraph, is ihat c\cn during tlw lifetime of t hc k a g u c of Nations, the
individual Metnbers of the League haù no leml right or interest in ensuring corn-
pliance by the Manùatory with the obligations impoxd by the Mandatc in
favour of thc indigcnous inliiibitants of the 'Territory '.Clearly the! muld not
have had greater rights after the dissolution of the League '.
It folluiiis t b t ü vjula~ionof any of these obligations (as claimed in operative
para. 3 of ihe resrilutirin) iv.~uldnot have wnstituted a breach of the Mandate
as agnir~srrhe iilrliÿiduc~tMeinl~ers,and woulù therefore not havc justified a
cancelIation of the Mandatc by them.
15. Brief considerarion niust alsu be given ta the extent of the contractual
righis vmtiny in ihe Leagür of Nations as an organizarion distincl from its
Members 2. According to the 1962 Judgnient, thc Lcaguc was a party to a
mandate agreement togeihi:~with its individual Members 3. As a contractua1
party, thc Lctlgut: wouId 1ht:refoi-e have been uniy ont: or the parties ici a mul-
tilateral trcaty and would xcordingly not have been cntitlcd io terminate the
treaty uniIaterally-the consent of the oother parties wouId have been required '.
Had the United Nations replmd the Leagiie as a contractual party i o a inan-
date agreement, rhc same siiuation wtiuId havc cxistcd-t he United Nations
wouId have required the coitscnt of ihe other parties to the multiIaterai treaty
(narncly on thc Court's iindinç, the States M c m k r s of the h g u e at its disso-
lution) for a cancellation of the treary. And, as show abovc, thc former Mem-
bers of rhe League did nat ;.s such play any role in tlie purported termination.
But lx that as it may : wha:ever the rights of the Lnired Nations rnight have
been hüd it replaced the Leigiie as a contractual party to the Mandate, seems
dacadeniic interest oniy in vicw of thc fuçt that the Court did iiot find in 1962
that any such substitulion had occurrcd, and, on ~ h econtrary, sccmed to
reject such a notion by declining to accept the succession argumcntadvaned by
the Applicants. And, as nn;:ed, the 1350 Opinion was not concernrd with t his
issue a i al[.
16. The position ihen is that resrilution 2145 {XXI) was bascd squarely on
pnweis claimed to vest in the General Assembly as sucw.ssor to the supervisory
funciions previously çxcrcis~:d by the Council of rhe League of Nations. In the
chaptcr s u ~ c e d i n gthe pre:;ent one, the South African Govcmment wilI set
out its reasrins for crintending t hat resoIution 2145 (XXI) cannot be justifteci on
ariy such basis. Ckapier VI1 contains an examination of the mandatcs in their
historical context from whi<:h i r will apwar thai the supm-isory powers wliich
rtestedin the C:ounciI of the 1-eaguc Jid nul include any power of uiiilateral revo-
cation in the event of vioIatiom of the mandate by a mandarory, nor did thcy
incIiidr any power io m u m e direct wntrol ovcr any rnandatcd territory.
Moreover, t hat Chapter will indicate that the obligations of a mandarory to
subtnit to supervision were not of the nature of internalional accountabiIity in
ü gencral scnçe but were s~iccificallyand intent ionalIr dcfrncd wi th reference
t r i specific orfians of a particular orgtinizaliori: and that by reasort neither of
their cotitent, nor of any ri~lcof law applicable rhereto, couid thcy thcrefort
' Vidp Sourli JYesr Africn. .Sectirrd Ph~isr.J~idgiiit,nr.i.C'.J. Kepart.~1966.

W e are not now concerntd u+h rhe s u p ~ r v i s o rfunction';
~ i n respcct of man-
dates whicl~the Ltague exercised throiigh i t s appropriata cirgans. This will be deall
with in C h p . VI1 k l o w .
Vide para. IO. slrprri.
Vidp Art. Ml of'the Vienna Convenrion on the Law of '1-rcaties, in U N doc.
A/CONF. 39/27 (2.3 May I9M). pp. 28-24.
have survived Ihe dissolution of the League in the stnse that they woiild there-
after have been owed to mme other organ of a different organization. Chapter
VI11 wiIl be devoted to a denioiistsatioii thal the supervisory powers of the
Council or the Lcaguc (whatcver ambit suçh powers may have had) did not pass
to the GerieraI Aswrnhly of the L'nited Nations hy virtue of any agreement con-
cIuJd during the period of the estabIishitient of ttie United Kations or the
dissolutio~of the Leaguc, or thercafter. These two chapters wiIl thus bctween
them cover the varirius rnethods rvherehy a transfer of supervisory powers mjght
possibly h v e been cllécied. The conclusions reached in lhern are mntriiry to
thnt expri:ssed by the malority of this Court in 1950; and the Opinions aiid
Judgrnenls in 1955, 1956, 1967and 1966 also contain niuch ivhich is of relevance
t o thiv t03ic. It has accordingIy bccn found convcnicnt tu dcvotc a scpiiratc
chapter (Chap. IX) to the previous pronouncenients of this Court on the ques-
tion ivhetl~era siibstiriition of siipervisory organs occurred on dissoIiition or the
Lcaguc. Ili Chüptcr X thc Guvcmrncnt of South Africa wilI gÏvc its rcasons for
contending that resoIution 2145 (XXI) is in any eveiit ultra vires the Cleneral
kssenibly in ternis of the Charler. In the last chapier of this wrilten staterneni
{Chap. Xi) thc Govcrnmcnt of South Africa wilI advcrt to thc factual situa-
tion in St>uth West Afrim. 'I'he purpose thereof wiIt be to dernonstrate that,
whatever the legal position rnight lx. there was no faciual justifirarion for the
n South Africa had violiitcd thc substantive
daim matle in thc r c s ~ l ~ l i othfhat
obligations contained in the Mandate. Indeed, it \vil1 be showii that the Cieneral
Assembly, though iwifed to do so by the SoutIi African reprewntatives. did
not enquirc adcquatcly into thc facts in order to cnmc f o a proper conclusion on
this score, nor did the Security Council i i i the proceedings Ieadinp up to its
resolutioris on South West Africa '. In this rewrd. ihe discussion of the facw
will show that for sonic ycan thc müjoriiy of Mcmbcrs in the Un~tcdNations
have not been interested in the inerits of the South African administration in
Souih Wcst Africa, or in the siandard of materia1, mord or social wcll-being
of its inhabitanis, but have cngagcd in a campaign ainied at securing indepen-
dence of the Territory (on the basis of a single poiitical unit) as an end isi itself
irrespective of a11 otIier considerations.
Morcorcr, if any of thc rclcvant rcsolutions of thc Sccurity Council or thc
General Asse~nblywere to he regarded, contrary to the submissioiis of the South
African Ciovernment, as ernbodying valid recommendations calling on SoutIi
Africa t o abandon its administration of South West Africa, the factuaI exposi-
tion in Chapter XI will demonstrate that cornpliance with aiiy such recoin-
mendation mould operate to the grave delritneni or lhe inhabiiants of the Te~ri-
tory.
These resolutions are corisiùered in Chrtp. V, supra.

C)F SOUTiI h F H ICA
WRITTF'I STATEhlEN~I~
DECLARATIOX
ON THE GRASTING OF INDEPENDFNCE TO COLONIAL
C:OCS.IKIES AND PEOI'L~S
T h Ge3iei.d Assernbiy,
~Mindfiilof the dcterrninai.ionproclsiimcd by the peoples 01. the world in the
Charter of the United Nati-311sto reaffirin fai tli in TundanicntaI hutnan iighrs,
in the dignjty and worth of the hiiman pefion, in the equal rights of mcn and
women and of nations large and srnütI and IO promore wçiaI progress and
berter SImdards of [ife in larger freedom,
Conscious of the need foi-the creation of condilions of stability and weil-
being and peacefiil and frieiidly relations based on respect Tor the principles
of equal rights and sclf-determination of ali poples, and of univcrsal respect for,
and obscrvanw of, h u u u n righls and rundamcnlal Iredoms for al1 without
distinctioii as to race, %ex, i:lnguagc or religion,
ficogtrizing the passiona1.e yeaining for frccdarn in al1 dcpendent peoples
and thc dccisive rolc ofsudl people in rhe attainrr~etifof their independence,
i ~ denial of or impcdiments
Awrrreof the increasing crinflicts rcsultinp f r o ~ the
in the way of the fsmdortt oFsuch peoples, which constitutc a serious threat to
world p a c c ,
<~/i.~idf~'ingthe important role of thc United Kations in assisling thc m m -
ment for independence in Tïust and Non-Self-GovwningTcrritories,
Kecogtzizing ihai the peuples ot" the world ardcntly desire t hc end of colonial-
ism in al[ its manifestations.
Convi~icedthat thc conlinued existence of colonialism prevcnls the de~elop-
ment of intcrnativnaI economic co-operation, irnpcdcs the social, cüIlural and
econoiiriç developmenr of dependent peoplcs and militates againsi the United
Nations ideal of univcrsal peilce,
Afirrlninx thst pcoples rna,y,for their own ends, frccly dispose of their naturd
wcalih and resourccs wilhout prejiidice to any obligations arisinç out of inter-
nationaI oconornie w-opcration, based upon the principle of mulual benefit,
and international law,
Belirviitg that the process of Iiheratbn is irresistiblc and irreversihle and that,
in urder to avoid scrious crises, an end must be put rû colonialism and al1
practiws of scgrcgtrtion and discrimination associaicd therewith,
Welcnining the emetgenci: in recent years of a large number of dcpendcni
territories into freedorn anai indtwndeiice, and recognizing ~ h eiiicreasingly
powerfuI trcnds towards fretdom in such tcrrirorics which !lave not yer atrained
independence,
Coni~itzwdrharall peuples have an inalienable right to cornplete freedom, thc
exercisc: of thcir suvereignty and the integrity of thcir natioiial territory,
Sufernniy proclailns the nt:cesdty of hringing to a speedy and unconditional
cnd cvlonialisni in a11 its furms und manifaîtations;
And tu this çnd
Deciares f that :
1. Thc subjcction of peopIcs to alien stibjugaiiun. doinination and ex-
pioitation constitutes a denial of fundamcnial human rights, is wntrary to
540 KAMIRIA (WU-KHWEST AA~;RICA)
the Charter of the United Nations and is an impediment to the proniotion

of worId peaçc and ceoperaiion.
2. AI1 peop1-s have die right to self-deterniitiation; by virtuc of thai
right they freely dclcrmine their political status and froeIy pursue their
econrimic. srnial and cultural devcloprncnt.
3. lnadequacyof political, emnomic, social or educational preparedness
should never scwc .as a pretest for delaying independence.
4. AI1 armed action or reprcssivc masures of a11 kinds directed against
dependenr peopies shall aase in nrder to enable thcm to cxcrcise peace-
iutty and frwlly thcir right ta cornplete indcpcndcnce, and the integriiy of
their national territory shall be raqpected.
S. lmmediate steps çhaI1 be taken, in Trusi and Non-Sclf-C;overning
Tcrritorics or al1 other territories which have not yct atrained independence,
to transfer al1 powers to the peoples of thase territories, without any
conditions or reservalions, in accordance wiih ihcir frccly expreswd will
and desire, without any distinction as to race, creed or colour,in ordcr
to enahle tliein to enjoy camplete independence and Creedom.
6. Any alrzmpt aimcd at the panial or total disruption of the national
unit) and the territoriaI inlcgily of a country is inminpatible with the
purpsses and principies of the Charter of rhe United Nations.
7. Al1 States shall observe faithrully and strictly the provisions of the
Chiirtcr of the United Nations, the Universal Declaration of Hunian
Right s and the presen t Declaration on the basis of equaIity, non-intcrfer-
ence in the internd affairs of al1 Stares, and rcspcct for the sovereign rights
of al1 pcopIcs and their territorial integrity.
(GA resolution 1514 (XV),14 Kkc. 19SO. in GA, OR,Fiftecnth Sess.,
Sup. NO. 16 (A/4684), pp. 66-67.)
WRITI EN STATEMENT OF SOI1-Tti AFKICA
CHAPTER V i l
HISTORY AKD CONTE'IT O F THE MANDATE
1. This Chapter is rlevotd to a consideration of the hisinry and contcnt of

lhe Mandate in the contcxt .>f the dispositions etfected at the terinination of the
First Wvrld War. 'The purpose of fhis exposition is to ascertain Ihe ambit of
the reciprcicai poters and o3li~dtionsin respect of the mandate'; of ihc Lcliguc,
on the one hand, and, on t h e otlier, of the various mandatoriw. Thesrounds of
'
rclcvancx ocif this topic have already k n considcrd nbovc and roquire only
brief mention hercin. Resolution 2145 (XXI) which underlies al1 subs~qucnt
United Nations action regrding South West Africa, was b a d upon powers
which ailcgcd tu have vestcd in Ihe General Aswmbly as successor to super-
visory functions previoiisly i:xcrcisabIc by the Councii of the League of Nations.
The nature of the suwrviscry functions oF the League (and the corresponding
obiigations of the mandatoiics) accordingly ha5 a bcüring on the validity of the
rm1ution 2145 (XXI) in wera1 vitaI respects.
It is relevant firstly to the ivhole issue of succession,and in particular to the
question whctkr lhc obligation of accountability undcr the MandaLe was such
that. on dissolution of the Lzaaue. a subsii~utionof the General AsscmbIy as
supervisory orgrin could havc;ccurred without fresh conscnl on the part of a
Mandatorv. Thc Suufh Afrjcan Government wjll demonstrate hcrein that such
a substitution muid not have hten effectcù as a result of the application uf
express or irnplied ternis of thc Mandate, or ofany objective IcgaI rüle applicable
to the Mandatc. Whcther L: succession of siipervisory organs mcurred by the
operation of consent giwn siihequently to thc establishinent of the mandates
system, wiI1 br considered in Chapter VI11 below, where it \vil1 be subrnitted
that rhe answer must bc in the negativc.
2. Bui even if it were to be held, ccintrary to the contentions advancd by
the South African Governnient, that lhe General Assernbly did succeed to the
supervisory functions of tht: Corincil of the League, the Court will still have to
consider whether t h e Coiint:il was vested with thc: s p ~ i f i cpowers purportcd to
have bcen cxerciised in remlution 2145 (XXI). In pmicular, thc question arises
whether the CounciI itscIf aas legally entitled IO revoke the Mandate for South
Wesl Africa; a question which is dealt with bclow. For reasons there statcd, it
is contenùed thal the Council of the League possessed no such power.
3. Fram the forcgoing it is apparent that an analysis of the respective rights
and obIigations of the Le:,gue Council and thc various mandatorics hsts an
important karing on different aspccis of ihe argument presentcd by the South
African' Govcrnrncnt in ihi ; written statement. Sinoe, however, the same in-
struments and events would have to be considcrcd in regard to both thc rdevant
aspects (Le., those relating to supervision and revocttion), il has been found
convenient fo devotc this szparate chapter to the hisiory and contents of the
Mandate.
Vide Chap. Y 1, ruprli.
The n t v t three sections hercvf witl bc devoted to the history of the mankates
syslern, 11icframing of the Mandate for Soiit h West Africa and the iiianiier in
which the League of Natioris exerciçed its supcrvisory funciions in respect of
mandates. Thew sections thus contain matter w l i i c l ~ is niainIy histnrical.
lhcrcüfter folloivs an anaIysis of the Mandate for South West Africil. Thc final
two sections of this Chaptcr arc dirccicd to ihe content of the mündatory's
obligii;iliori to report and accouiit to organs o f the Lcague, and to the extent or
the Lcagttc's cornpetence. if any, to recoke mandrires, substitule mandaroricu
or assiilnc direct administration of niandated terrilories.
H. 1 listory and Origin of the Mandates Srsfem
4. Allhouyh the ierm "inandate" had becn used bcforc in regard ta certain
',
inicmatic.nal relationships i i first acqiiircd a speciüI mcaning iri itiiernatiorial
Iaw a h e n the iiiandtitcs systcrn of the teague of Nations wüs instit~ited.This
system originated, togcther with the I.erigue, frorn iht: peacc sertlements effected
aftcr the 17irst Warld War. As Quincy Wright rcmarked:
"This system, Iike rnosl other puliticiil innovations, was nnt a pmduct
of disinterested jriristic rhought nor of detached scientific invesiigaiion but
was i t co~riprorniscinvented hy the Versailles starestncn to ineet an irnme-
diüte political dileirlrna 2."
5. The dilemma rvhich requircd rsolution by coniproniise involved, bricffy,
a clash of views and aspirations within the ranks of the Altied ü~idAssociated
Powers relative to the future of territorics and colonics conquered from enerny
powers dtiring the war.
6. Amr~nysuch tcrritories was Gerrnan South Wesi Africa, whicli had bwii
surrendered to South Arrican rniIitary f o r a in Jul y 1915 as a resull of which
South Africa remaintd in milita? occupation for tlie reniaindcr of the war and
thereaftet- pending the Pace settlenients. SiniiIar sitiialions obtaiiied in respect
of oiher tcrritories conquercd and uccupicd by nther AlIied and Associated
Powers.'1-hese incIudcd, inter alin, the fornier Germari coluriy in Ncw Guinca,
wliich was ciccupicd by Austi'alia; thal in Samua, by New Zealand; the Gerrnaii
istands in the Pücific Ocean north of thc Equator. by Japan; and various Gernian
territories elsewhere in Africa, by Great Rritain, ReIgiurn and Francc. Furthcr
north, various partians of th<Ottornan Empire were in AlIied occupation.
7 . During the war, sccrct trcaties and agreements were made beiween some
of the Allies wtiereby their respective claims to various occupied tcrritorics ivcrc
to be recognized in ihe event ot" an AIlied victury. And the British Imperia1 War
Cabinct rkcided iti March 1917 that the three I>nrnininns. Austrülia, hiew
Zealand :ind South Afriw,, should be alIowed to annex ~ h eübovc-nicntioncd
' In [hi.; respect vide ITüII. H.n., M~ndulcs,Depende~tciesand TrusrrrsRip (19481,

pp. 17 er sey. and "l'hc Trusteesliip Systrm", H.Y.H.I.L., Vol. XXIV (1947), pp. 44-
46; Wright, Q., !lf~ndo~cs Under ilir L m p c ofNatiun.s (19301, pp. 15-23; Schneider.
W..Dos I'dlk~rrechiiirhcMandu; (t926). pp. 14 er s ~ q . :Motir, E.G . , ilir I.-rug~&r
Sortve~RniîBtin den M~ndars~cliiPtcn ( I 9281, p. 4 ; Tetnperle>,,I I . W. V , . A Ilistors of
ihr Peacr Confivcnce of P n ~ i s(1920-1924). VuI. VI, p. 502 ;Kenried y, W. P. M.,aiid
Schlosheri:. H . J., The Law and Cltsronr of tlrc Soutir African Lonrfiiutivn (1935), pp.
514-515: Rolin. H., "Le Systétiie des Mandats Coloniaux", R.D.I.. Vol. XLYII
(1920), NO. 1 , pp. 356-357,
? Wright, v p . cir., p. 3.
occupicd terrilories, adjacent to their own, namely Gcrnian Ncw Guinea,
Gernian Samoa and Gcrmari Soiit h Wcst Africa respect iveIy ',
O n the other hand, certain proposals for iittemationa1 cont rol of conqiicrcd
colonies, sornc of thcrn ewin relating Iu a11 colonies 2, were aIso niadc duiing
the \var years.
In 1918, G . 1,. B e r , historian atid adviser to I'resident Wilson of the United
States of Amcrim, corin~tr:dsuçh proposals with otliers then currcnt for the
establishment of the teagrii: of Naiiom. He proposcd a mandates systein for
Mesopotamia and certain of thc Gernian colonies. urging ihat the adminis-
trarion of thex arcas shoultl be entrusted to "ditferent States acting as manda-
torics of tlie I a g u e d Natitins *". Heer considered: howcver, that the mandates
systcm coulù not be applied to Suulh West Africa aiid recornmended that this
region he incorporatcd in Ihr: Union of South Africa 4.
S. Tlie Enited States of .Ilmerica uias not a pürty io the secret treaties and
agreemcnrs mzntioned above; she enlered the u7arafter most of them had bccn
concluded. At thc tcrminatim of the war Preidcnt Wilson strongly advwated
a policy of' "no anneaations"; as will he shown, hc wcnt to the Paris I'eace
C o n f c r c n ~dettrrnined
~ to %:cureapplicution of the proposcd mandates systcm
in an extremc forrn, tu nflex.cnemywlonies and possessions.
In Octoher 1918 Colonel House, who had bccn chosen by tlre President as a
nlcmkr of the Amerimn delegatiori to the Race Conferenw $, met with Mt'.
1.Ioyd George and gaincd British acceptanw uf the trusteeship principlc for 311
cncrny Ierritories, wirh the c:xception of South West Afrjca itnd the Asiatic 1s-
lands. The Briiish Prime Miiiister s!ated ihat tliesr territories wouId have to go to
South Africa ünd Auslralia rebpectivcly, since i T this did not happcn he inight
be confroiited by a revolution in those Ihminions 6. Ar-cording to Mr. Uoyd
George the Dominiuns wcre not prcparcd to give up any of the colonies con-
quered by them during thc ,var aiid contiguous to their own territorics '.
Three weeks after the wa.r cnded, on 1 1 Novernbcr 1918, President Wil.?on
left for Europe. In [hecourse of a rncctiny uboard sliip the President stated tliat
"the Gertainti coimies shoul[!bc ckrlared the cujriti~otapruprrry of thc Leciguc of
l?:~riorrsrrtd ~d/ni+iislered ofcmcIi
II). .i-milnurioizs. The r c ~ o ~ ~ u ~ . s Coloiiy sbould
be n vnilirfile fo al/ mn~nrbersqrrhe Lcaptc . . . &"
Y. In Decemher 19 18 Geiteral Si~iutspublished a pariiphlet in which he, likc
Bccr, linkcd a proposcd mandates system wjth a prnposcd Lcüyue of Nations '.
He Iiinited his proposals tu "terri tories forrncrIy betonging to Russia, Austria-
: Vide I.loyd George. D.,- T h Trrtrli nborrr tlie Peuce Trcalie~(1938), Vol. I, pp.
114-123 and Vol. TI, p. 7 6 6 : Spiegcl, .M., 13us Vijikl-ci-recbrfichkMunrlur utid srinr
Andwenditnr uirf Puliistini~( 1 928). pp. 8-9; Tziiiperley, op. rit., Vol. 1. p. 195; I.ogan,
R. W.. The Africun Munikzres in Worid Pvfiiics (1 9481, pp. 1-2; Townscnd, TV[. E.,
The Risa nnrf FQII of Germarty's Cokinial Eiuiripir~( 1930j, pp. 363-359, 377-378.
Vida Hobson. 1, A . , ?Or!rrrds Interi~tioaafGowrniiicnf (1 9 1 5). l'ide also the
disçi~ssionby Potter, P. B., "lkigirl of the Systcni of Mandarcs tinrler the Lcasuc of
Naiiiitis". A.P.S. R.. Vu[. XVI, No. 4 (Vov. 1922). pp. 503-583.
..
Beer, G.L., African Qrics!iuirs ut ~hc?Azri.s P~*u.ureCuilfrirnce, ed. b? I H. Gray
(L923), p. 431.
Ibid, p. 443.
' 'l'illman, S . P.,A&-Ain~riron Relffrioils a f the PürisPfacc coiference qf' 1919
(1961). p. 59.
V i d e Foi. Rd. U.S.: The Prrrij. Pp'e~ce(ionference,1919, Yi>1. 1, p. 407.
Lloyd George, op. cir., Vol, 1, p. 114.
Yi& M~ller,D. H.. The ,>rofti~h.of rl~eCowiurnr (I928), Vol. 1. p. 43.
Smuts, J. C.. Tftc Lvagrie ofil.uriuas: A Praciiral Str~grsiitii~ (1918 ) , p. 15.
Hungary .ind Turkcy". As far as these tcrritories were concerned, he proposed
that the Lzague of Nations should be wnsidered as ~ h reversiunüry
e in the most
generaI sense and as clolhed wirh the ri& of ultimate disposal in accordancc
wj th ccrtiiin funhrncntai principles. H e expressly excluded the "Gcman
colonies ia tire I'acific and Africa", since in ihcsc a s c s "Ît would be irnprac-
t icable tc. apply any ideas of politiral seIfdetermii~atioi~ in the Europcan
scnsc '". Gencral Smuts furthemore propowd in regard tu the territories t o
which he i~tendedIlic niandates syslcrn to apply:
Ca) thar ;iny authority, control or adminisrration which might be necessary
in re:;peci of lhosc tcrritcries and peoples, other than their own self-
determincd üutonomy, should be tlie exclusive funclion of and vcsted i n
the Leaçne of Nations and exercised by or on bchaIf of i t ;
( b ) that i i shouid bc Iawful for the League of Nations to delegaie i t q authority,
contrd or administration in respect of any people or tcrritory to some
other State which it rnight appuint as its agent or mandatory ; aiid
( c ) that $.Liedegrcc of authority, control or administration exercised by the
rnandatory State should in eacli case be laid down by the Leaguc in a
speci~ilact ar charter, which should rexrvc to the Lcague complete power
of uItirnate contrvl and supervision, as weIl as the right of appeal to it from
the terri tory or people affected against any gross brtach of the mandate by
the rnandatov State.
10. Towards the end of Decernkr 1918 Prcsidcnt WiIsoii had a discussion
with M r . Lloyd George in London. The t'resident agreed that the Germiin
mlonics should not be returned to Germany bit1 stated that eaçh should be
put under some Pciwçr acting as a niandatory. Mr. Lloyd George impressed
upon rlie I'resident the distiiiction betu~eenthe tieriiian colonies conquercd by
the British Doniinions and adjacent to rhetii, and those in ihc conquest of
irrhich the forces of the Ernpirc as a whoIe had shared. He pointed out that ir
i ~ o u l dtic quite irnpossihle to separaie South West Africa frum thc Union
of Saiith hfrica because the former wüs csscntially part of South Africa. 'The
Ptesident did no1 =cm prcparcd to contest that contention but retorted ihat
the position OF Australia with regard to the Pacifrc colonies was ROL quitc: thc
samc. In answer to ati nrgutnent based on grounds of sccurity the Presideiit
answered that a c a x on siniiIar grounds rnight he made out for every 0 t h
captureù tcrritory 2.
1 I . After his meeting wirh Mi-.L I o y d George, Presidcnr Wilson weiit to
Paris whert: hc drcw up n draft Covenant in ivhich he incorporated much of the
thoiight aiid Ianguage of General Srriuts. This draft ducumcni was known as
Wilson's First Paris Draft. In this draft the Prcsidcnt sugcsted rhe extension
of the tnatidates systcm to al1 Gerrnan colonies, including those in Africa and
the Paçific. Like General Smuts, the Presidcnt proposeci thal uny aiilhurity,
control or administration which niight be ncccssaq in respect of the said
territories shuüld bc the cxcIusive funcctian of the League of Nations, which
sbould ineaçh case explicitly define r he degree of authoriiy, control or adminis-
lraliun io Iic cxerciwd by the rnandatory Stare. whilsl n'serving tu itself cornpletc
power of supervision and of ultimate control. The draft also proposed that
there should bc rcsei-ved to the people of any such rerritory (lie right 10 appeal 10
~ h cLeiigue of Nations for the redrcss and corrections of any brcach of the
-
Sinurs, op. ci!., pp. l 2 and II;.
Lloyd George, op. cir.. Vol 1, pp. 190-t9I.
mandate by thc mandatory SIate. Provision was also madc for the possiblr:
confcrmcnt of inandates on "organized agencics" oiher than States, and for
the substitution of rnandatoi.ies ( k i n g Sîates or "organized agencies") hy the
League '.
12. From the ahove, the tnakins of conflict at thc Paris Peace Conference
wiIl be manifest. The futurc n~fthe G e r m r Colonies was discitssed as froni 74
January 1919, in the "Coiincil of Ten", which wnsisted oofthe heads ofgovcrn-
ment andforcign minisicru:ofthe UniteciStatesof Arneri~t,the Utiited Kingdom,
France, Italy and Japan. Rcprcxntiltives or Australia. New Zealand and Soiith
Africa wcre allowed to k prexnt and to express their views at the discussions
concerning thc future of rhe former tierrnan Cmlonies in N e w tiuinea, Samoa
and South Waft Africa.
There was fairiy general ar:reemeitt thar a mandates system was to bE cstab-
lished. The wntroversy çonu-medthe content of such a systeni, and particularty
the pcoples and territories tci which it was to be applied. especialIy inasmuch
as therc was general recognition of the \vide djiferenoes betwwn thc various
peoples and territories conccrned, ranging from,on the une hand, develowd
sricictics to, on the other, pmpIcs still Iiving in Stone Age conditions ?.
13. At the Peace ConTerence the discussion rclating to colonial tcrritorics
was opened by Mr. Lloyd Cieorge on 24 January 1919. IIe said that two or
thrcc metiiods Iizd been proposcd rcgarding the inanncr in which these terri-
tories should be dealt with. l'he first was internationali7ation or control by thc
League of Mations. I i was gtnzrally açreed, horvevcr, thnt these territories
wuld nui be directly administc~cdintcrnatiorially. Thcrcfore, ii had k e n
suggested that some single nalion shouId undertake the trusteeship on khalf
of the League as mandatory. The conditions nf the trust. would include a
stipulation ihat the territories shauld bc administered, not in the inrerests of
the mandatory, but in rhc intt:rests of al! tlre nations in the League. Therc wuuld
also, no doiibt, he a nglit nf appcaI 10 the Leagiie of Nations if any of the
conditions of thc trust wcre broken, for instance, if the missionaries or con-
ccssionaries of aizy nation cornpIaintd ofunfair treatmeni.
The nexi aItemative, according to Mr. LIayd George, was frank annexation.
He stated that thc German ci)Ionie% conquered by Australia, New ZcaIand and
Souih Afrim would bc dealt with in defaiI by the Minisiers represenring rhow
Doininions, but pointed oui that South West Africa was cantiguous to the
territories af thc Union.He went on ro Say:
"There was no rcal n:.tural boundary and unless thc Dutch and British
populatian of South Africa iindertook the colonization of this area i l
wuuid reinaiit a wildemes~.If thc Union were given charge of fierman
South West Africa irl tlie ctipitcity of a Mandatory thcrc would be in a
territory, gcographicaIIy one. twa forrns of administration. II was ques-
lionable whethcr any advantüge would he derived from this division
capablc of otit\veighing i:s practical dificiil ties "."
14. On 25 January 1919 Lord Robert h i 1 circulated a British "Draft
Convention regarding M a n d i t a " which distiiiguished betiveen two catcgorics
Miller, op. cir., Vol. II. pp. 88-89.

Vide For. Kcl. US.: Tlrr P<rrisPruce ConJeveiice, 1919, Val. III, p. 786. Accord-
ing to an artiçlc in the United h-',ttionsRevietv of Sepieniber 1954 (Vol. 1, No. 3, p. 3 I),
the peuple in scime parts <if Ni:w Ciuince sri11 l i v e "in Stone Age conditions of pri-
mitivc sauügery". I7i& also Vol. 2, No. 3 (Sep. 1955), p. 34.
For. Rd. U.S. : The Paris cure Conferrncc, I Y 19. 1'01. Il 1, pp. 7[Y-710.
WRITTF.N STATEMEN~I'OF SOGTH .A FKICA 547
of the territories in qliesticin to the Dominions clüiming thcin siiggested that
thcy should form an inlegral part of thwecomïrries '.
I f . After kir. h l a ~ s t yol' New Zcalünd had amin prcseriled Iiis country's
case for the snncxatiori of S:imua. Mr. Simon, thc Freiich hfinistcr for Coloriies
at thc ri~eetiiigheId in ihe aiternaun of 28 January, prcsented his country's c ü x
foi the annexation of thc Currieroonsand Togoland. In dcvcloping iiis arguineiit
againsr rhe acacptünçe of Picsideni Wilson's mandatory systern hc pointed out
thiit cvcry mandate w ~ ~ i i l32 d revocablc and lhat tliere woulri' therefore bc no
puarüntcc fur ils continiim~x.There wrouId thus be littlc induçrttient for the
investrrienr of capital üird fcr colonizütion in a country the futui-c of which was
iinknown. Thc inandatory would have to bc cuntcnt t c i ]ive qitietly without
tryit~gto dcvelop a country 3 r tu itiiprove the conditions of lifc of the ~iaiives'.
18. President Wilson tIit:n obscrsed thar the discussion up to that point
hnd bccn, in essence, a ncg-ltion in detai[-one case at a time-of the whoic
priricipie of mandarories. The Jiscuçsioi~had heen brought to a point ivhere it
looked as if their rnads dive~ged.Hc was follorved hy Mr. Balfour who crrquired
whether it wüs noi truc that whilsta good dcül of thoi~ghthüd been given to thc
h a g u e of Nations, vcry li:tIc thought had been given to thc position of a
inandatory Power. Hc said tliat he kneiv of no paper or speech in which the
practical difliculties of the iiiandares systcm had bccn worked nut in detail.
III pnrticular, no conclusioii had r l n reached and no at~thoritutivestatement
had k e n made regarding an important point, namely whether rhc tcniire of a
inaiidatory should be made teniporary or not. He pointcd ntit that if thc tcnure
cvere iiierely temporarj,, difficuItics ivoiild arise and ihat t hercwould be peipetual
intrigues and agitation. For instance, if a Gerrnan population ~verclcft in one of
the Gernian colonies who c.>uldhamper thc mündütory and protnote a scmc uf
grievance in t hc rninds of thc nst ivcs by raising expccrations of sorne elysium to
corne, rhat mighr lead to a change in the mandatory by ihe Leigue of Nations.
ln his opinion, ihe mandalory systetn could only work if a mandatory tvcrt
s~y:uredin his term of ofKct: 5 .
The samc view was exprecsed by Mr. Orlando of HaIy who raised the question
how far thc pciwer oTa maridatory should extcnd. He thought that the truslee-
ship need iiot be purcly tran:;itory +.
Mr. Clemencwu, although stating that his senrimcnis were in agreement
with thnse of Prcsidcnt Wilson, cxpressed serious misgivings:
"Tlie League of Katiom: he thought. uJasto hc a Leagile of Dcfcnce ro
ensure the peace of the woslà. But it appeared thcy had now gonc
brycind that l imir whe~ithey propoxd to create a. I.mgue of Niitioirs with
governtriental Ftinctiorrs 10 interfere in internal alrairs. with trustees in
various places scnding reporls [O-he did not knorv whom. Throughout the
world. cven in Europe, and pcrhüps in the Adriatic, a conirol would be
set up. Presidenr Witron hin~selfhad said so. and. aî a result, appeats
would bc heard from ;il! parts of the world. Who should deaI wiih those
aplieals? It had been siid that an Ttlternational Legislüture and some sort
o!'execurivepowcr, ahrut \r,llich hc kntw nnthing, would have to be creatcd
without uny power to adiriinister penalties, sincc this question had never
l ibid.. pp. 739-750.

ibfd., p. 7 hl.
' Ihid., pp. 736-764.
' Ihid., p . 768.
in the late 'I'urkish Einpiri: irnd iri tlie Geriiian Colonies, but Ihree classes of
mandates would have to be rucognized, the third category being dcscribcd as
follows :
"Mandiites itppIiçabIt: to countries which formed aImost a part of the
vrganiration of an sdjoining power, K ' ~ O~ ~ I Ih(ibme
I L ~1.0 he appoirited the
mnirdaior-v '." (TtaIiçs acided.)
I t was ohvious froni the îc~rmulationof the Sinuts resolurion and from what
Rlr. Lloyd George had said that rhe Pacific lsiands m d Souih Wcsl Africa
would be territories to which rhe third category of niandates wrouId appIy, and
that New 7eaIand, Ausirali:~and Souih Africa wouId hüve to be appoint&
Mündatvries.
Presidcnt Wilson indicatetl that hc considcrcd thc ducurnent containing the
Sniirts resolution to be a gratirying paper. On the otlrer hand he did noi think
thüt thc Council could inakc a final decision inimediately. Hc statcd that hc had
in Iiis possession a sc:cparate paver showing hhow thc schcnie of mandates would
work in cnnnection with the Ixague of Nations (presumabIy his Second Paris
Drift), but that scheme had aot yet k e n accepted. At thlit stiigc nnbboy cvuId
siiy how a mandate would hl: exerciscd and what it \vouId invoIve. Whilst prc-
pared to accept the resolution as a precursor of agreement, i t did not, in his
opinion, constiiuie a rock foiindarion, ris Ihe League of Nations had no1 yei
been fixcd, on which this sul~erstructurcwould rcst 2.
Mr. Lloyd George rcplied that the I'resideiit's statement had filled him with
despair. He pointed out that i t was only with the greatcst difliculty that the
represcntativcs of the Dotniriinns had bccn prcvailcd upori to accept the drrifl
submitted, even prnvisionall:,. He consequently [nade an appeal thar the man- ,
daiçs issue should not Le lcft hanging in the air uniiI the Lcaguc wüs established
and callcd for a provisional adoption of the resolution suhject to such rccon-
sideration as might be required when the cornpletc cchcrne of the League of
Nations was formuiiited 3.
In replying, President Wiljon said that he \vas willing to accept Mr. LIoyd
George's proposais subject to rcconsidcriition when the full schenie of the
League af Nations had been drawn u p 4. However, iMr. Hughes was not salis-
fIed ivith a pureiy provisional arrangement. H e ivantcd a definite decision and
enqiiired whether they should arvait thc acccpiance of the League of Nations
hy the Conference and by the world whilst they tvere waiting for a dccision.
"Was not the rfe ficru Lcag'le of Nations already iit eiiislcnce in that room?'',
he askcd. In his opinion this Leaguc should say who wcrc ro be the man-
datories :.
21. At the afternoon rtteeting Mr. Massey of New Zaland ~ p e c i f i ~ t dcalt
ly
with paragraph 8 of the Srnitts rcsolutivn which eventualiy becanie Anicle 22
(6)of thc Covcnant. Hc referred to the specific ubliyations of a mandatory
under a Class "C" Mandata: and asked the I'resident to confirni that these
would be ihe only obligslrii~nsuf such a ~nandaiory? A ssonieibht heated
discussion cnsucd in which the l'rime LTinister of Aiistralia rcndcrcd cIear ihat
Australia renlly desired "di1 ect control" and thai for his country and New
For. Xe/. U.S.: Thc Paris I'errce CvrrfPrrncc, 1919, Vol. I I I . p . 786.
Ibiri,. pp. 788-789.
Ihid.. pp. 789-790. ,
fbïd., p. 791 .
'I Ibid., pp. 793-794.
ibid.! p. 798.
Zcaland .tic Smuts resolution reprewnted ilic maximuni of rlieir. cvnccssion '.
,4 çpewh, generally describcd by cornnientators as "conciliatory" was iiien
made by the South Africrin Priine Minister. GetieraI Botha, in which he siatcd,
iiifer n/iu :
'-Ife appreciated tlie ideals of Presidenl Wilson . . . They riiiiçt rernernber
tIiat iheir various péqples did not understand evcrything from the sanie
point. . . Pcrsonally he felt very stronglv about the qvatiori uf Gcrnian
Soutli-West Africa. Hç [houghtthat it differed eniircly from any question
that thcy had had to decide i i i this cotifereri~u,bu1 he would be preparcd ro
say that he was a supporter or the doçumcnr hünded iri thai morning Iby
I,loyd George], becriuse Ile k ! ~ e wrhor. if the iclru fructijed, rlre 1-eupue ut'
:Vdi.irris wo~tidcotisirr niosii~of tht. sriiiie peupic who w e r presrni
~ thcrc ~ I i c ~ f
it<ri?, who u d r s f o o d rlie position arid nrhu ivould nof innke if it>rpnssihir.fir
at1y matidntorp !o goverai r h ~cn1ctilv.v. That vdas why I\e said he would
accegt it '."
(ïtalics added.)
After ldr. Masse? had spoken again, Mr. Lloyd Geurgc proposcd that the
Council should advpt ihc Smuis resalution a5 a prwisional dwisioi~"subieci
10 revisioil wlicn either they found tlie teaguc uf Nations \vas unsaiisfaçtory",
or t here wax sone atlier reason for revising the resolution 3. After furt her
discussiu a. Presidcrii Wilson agreed to accept the proposal. No formal vote
was iakeil an the resolution, but at the suggcs\ion of President Wilson it was
agreed tl-at a coniniiiniqut be issued stating that the Cvnfcrcncc had arrived
at a satisraciory prvvisiona1 arrangeiiient regarriing Ihe Cierinan and Türkisli
[erriloric:; outsidc Europe '. IrnplicitIy i t wiu ugrccd that the Dominions woiild
rcccivc the ferrirnries, to whjch the? had laid daiins, as Class "C" Mandates
upon the teriris specified ', and at a subsequent meeting early in May, Presiderit
Wilson confirmcd that the tacit arrangenicnrs had sertled the triatter to a11
intents and purpnses, and that thc Mandate for South Wcst Africa should k
given to South Africa, for h'cw Ciuinea and the adjacent islands to Auscratia,
and fur Samoa to New Zmland ".
22. Even after the Sniuts resolution had k e n tacitly adoptcd, Prcsideiit
Wilson did noi entircly give up his awn ideas. In Ili%Third Paris Iisaft , printed
on 3 February :, he agairi included a clausc rcscrving IO the Lcaguc cornplctc
power of siipervisivn in respect of mandates, and to the ~ o p l of e any nlandated
tcrritory thc right tn a p w a l to the Ixague for the rcdrcss or cvrrcction of any
breach of' the inaridate by ~ h mandatory
e Stütc or agency and for thc substitution
o f some i > t I ~State
r or agency as ~nairdatory'.
Thc copics of ihis, the laqt of lhe Presiùeni's drafts, were serit to hirrt on t h t
morniiig of 3 February by D. H. MilIer, Arnerican legal adviser iil Paris. Tn a
letter to h.iilIer rhc Presideiit stated tliat he hoped witli atl his heart that his
finiit drafr \vould serve as the basis of the wurk of the Di.itfting Cornrriission Y.
%id.[ hm816.
' Sloniin, Canurliaii Yturhonk of Irir.:rrintiorini Law, Vol. VI. p. 1 3 8 .
Ihid. l n its cvcntunl rorni. a5 Ari. 22 ( 6 ) of the Cor4cnant,the S ~ ~ i u resulirtion
ts
becairie part of thc '1-rcaty of Versailles wliich waï sigoci! r 1 28 June 19 19.
Miller. op. c i l . , Vol. I, p. 73.
Ibid., Vol. II, p. 153.
lbid.. Vol. 1, p. 75.
Hut, as Millcr puis it :
"Wilson's hope was riot realizcd; i i was the Hurst-Milfer- Ilrafr and nor
his reviwd Covcnsnt wl~ichhecarne the brisis of the work to mme '."
23. I i is necessary ta stre2s the niain elernents or the conipromise embodied
in Articte 22 (61 of the Co\.enant?. In return for thc co,nccssion that a11 the
German criInnial possession? wcrz hrought into the ~nandatcssystcm, President
WiIson had tu abandon certain of lhc exrrerne aspects of his proposais concern-
ing League supren-iacy and sontrol and thc ypamcnt of cxpcnses of mandate
administration by League >lembers. All mandatories were to be States. no1
"organizcd agcncits". The mandates wcre to be allncated by the Principal
Allied and Associated Powe:s (nor the League), and, ai any ratc in rhe case of
the "C" Mandares, the allocation "wunld huvr 10 te" niade to the adjacent
claimant Statcs. Thc Prcsident's express provisions relaring to complere power
of supervision oii the part of the Jxague, including t hc powcr to rcvoke a man-
ur ugeticy as inandatory, werc not rcrained
date and sutistitrite sonie other Stat.~:
in Articic 27. Thc rdatiunship between the League and mandatories was in
each case to be regulated by a niandate instrunient, thc iccrrns of which were
nsscnted to bs the mandatory and woiild noriiialiy require i ts conscnt for al-
tcrstion. AI1 ihis wsts very Air removcd frorn the envisaged free League Jis-
cretion to appoint and change mandatories. And in thc casc of "C" Maiidatcs,
the niandatories were ta hx;e power to adniinistei the territories "as integral
portions" of thcir uwn. And iherr rvoiild bc no objection i l such adminisrratiori
were to lead to eventual am;ilganiaiion, il' agreed to by thc inhabirant.;. At the
Pcace Cnnrerence President Wilson strcssed that :
"It was up to the U~iionof South Africa to make i t su attriictive that
South West Africa would came into thc Union of their own free ruiI1. . . .
If sucessfit1 ndministrarion by a mandatory should lead 10 union with
the inandatory, he would be the last 10 object. . . . 3"
Later he said that-
"if South Afriça rriariaged Sourh-West Africa as welI ac,she had nianaged
hcr own country, then sht i v o ~ ~ bcl d marricd io South-Wesi hfrica '".
Finally, ihe "open-door" principle of equal tradc opportunities for Mernbers
of the League, ri11 hough originaliy cnvisaged for al1 mandates, was cxcluded in
the case of "Cu Mandates '. This exclusion was subscquent~yreferred to by
Lord hTiIner, Chairman of tf,e Cornmission appointed to frame draft mnndütcs,
as "a co~iprornisexiually tccepted by the Powers "".
24. In view of the above iealures, cornnientators quite naiurally refcrred ta
Ihid., the Hurst-Miller Drali embodicd thc Smuts resoiutioii.

' AS $vas coriimçnted gznei-aIly by W. E. Rsippard, Secretary aiid suhsrqucntly
mcm bcr of thc Permanent Minda~et.5Coriiriiission : "The tcrms of ihe cotiipromist
wcrc obvious : Prcsidcnt Wilson suczeeded in preventinp, annexation ; the conqucrorl
i n retainingthcir conqucsts." I/jdr "Tlie Mandates and the Internarional Trustees!iip
Syslem", Yariu PoIifiria (l953j, p. 182.
For. Rd. U.S.: Ï k r Paui.c PPLICPConSfrencc. 1919, Vol. I I I , pp. 74 1-742.
' Ibici.. n. 788.
.' vitk~'fiiia1u~ordsof Art. 22 (6).
Corit2rt~nrrde In Pair IIY 9-1920. Rrcirrii rirs Acres de /a Cotifireiice. Partie V 1.
"C" Mandates as bcing in thcir pracli~ileffect not far reinoved from annesation.
Thus, during the First Session of the Pcrrnancnr Mandates Commission,
Mr. Orn;sbl,-Gore, the Lnited Kingdoni niember, stated:
". . . ihis cuw vf Souih Wrs?Africn was, indeed, a typical example of the
complete poli tical incorporrition of a mandared rerritory in t hc rerritory
of the mandatory Power '".
"it has becn foiind nemsiary, also, ro devise three types of adniinis-
[ration, and to givc in thc icsc of 'C' Mandales, powcrs that amount
ncarly to annexatiun. Oihem~isethe British Dominions couid not Iiave
been won over to rhc acccptance of the mandates principle a[ al1 2."
Whrn inrroducing the l'eace Treaty in thc British Hou% of Conintons on 3
July 1919, Lloyd George stated:
". . . South Wesr AMca, running as it daes sidc by s a c with Cape CoIony,
was fcit to be so much st part, geograjihically, of chat areü that i t would he
quiti: irnlio.~si/>lc ro rrcar ifin rhe satne Ray ns jmoirwoiild a coiut~y2,000 or
3,001)miles away frrim a centre of adininistration. T h r e fi no doubr ut ail
rCiar Sotirh West Africrr will brcottre air integrai part of the Federation of
Sou1.h Africa. It wilI l x colonizd by people from South Africa. You could
not have done anything el%. You wuid not have sel customs biirricrs and
havc ü d i f f c ~ n tsysteni of iidniinistration "." (1 talics addcd.)
And Ternperley wrote:
"CIearIy the deve1opinent of this territory mus[ in ihe main corne €rom
t hc adjuining Union of South Africa, and ir.7 progrcss woriid hc .rcrio~tsiv
irnndicappcd if i t w ~ r adrnifiisrered
c as n ,disfincl rntiry witli sipcrrufp nuiive,
j i s r i , and rniiroud policies. As, hnwev~r,it was fearrd fhni an exceprion
t~iadcin one c n s e n o ttiatrer hon: v(zlir/ it iirighr te-inight upetr rire door tu
ori~ers,n r~,ncrrrl npplictifionoJ the sysiefn cris insi~redupon. This had some
unfortunsite confeqiiences since, mainly in ordcr to meet thc spccial cir-
cunistanccs in South Afrim, a broad forn~ulahad to he adopted which wa~
not compietely satisfactory as far as other areüs were çoncerned '." (Italics
added.)
C. 'I'he Framing of the Mandate for South N'est A f r b
25. In ierms of AnicIcs 1 18, I 19 and 157 of thc Treaty o f Versailles, Germüny
re1iounfi:d al1 riphts in or over her coloiiial possessions in favour of Ihe Prin-
cipal Allied and Associatcd Powers.
O n 7 lviay 19 19, thus cvcn bcforc the Treaty of Versailles was signed j, the
Council of I'hree, represented by Mr.Cicmenwau, President Wilson and Mr.
LIoyd Gtorge, annoiinced that ttiey 'nad decided nn 6 May as IO thc disposition
of the fclrmer Gcmsn Colonies, inter dia, as futlows: "fierman South West
Afriw : The Mandate shall be heId hy the Union of Soutli Africa 6.''
PiMC'. Min., 1. p. 17.

Margplith. A. hl., The Irirsrriarioiial : M ~ n d a f ~(1. s9301,pp. 33-34.
' ?rnl~crlcy, op. cir., Vol. 111, p. 95.
' ibid. Vol. I I , pp. 233-233.
' I'heTrraty wiissignrdon28lune 1919,nndcanie intoforceon 10 January 1920.
For. Ref. L7.S.: The Puris Peuce C(~njercncc.1919, Vol. V, p. 508.
WRI'ITEEi Sm-i'kMEhT OF SOUTH AFRICA 553
26. Bcforc ihc end of the I'aris I'cacc Conference of 1919, a hfandates Coin-
niission was established and was instructed by the Supreme CounciI, it~rcraiin:
"Tu g i ~ earrentiun to the editing of draft mandates '."(TransIation,)
On the hais of the Con;miçsion's decision5 and reçorrimendations, drafi
mandatc instruments were evzntualiy prcparcd by the IegaI experts of the nrafi-
ing Committee of the Peace ConTerence.?'hese drafts were first cast in thc forni
of conventions' and the intention h d originaIly been that such conventions
shvuld form anncxcs to the Peaw Treiity 3. By thc tinie thes were subrnitted to
the Council, as recounted below, tIiey had, however. beeti recast in thc form of
Council resolutions.
Transmission of thc draft riiandaies io thc Council of the k a g u e was delaycd
because of a difference of cpinion ainong the .Me~nbersof the Commission
regarding t h e queslion ivhether the open-door prinçiple was to be applicable in
the case of "C" lllandatcs +.
27. On 5 August 1920 the Couticil of the League of Nations dnsidcred and
adopted a very fuI1 repart by kfr. Elyrnans concerning the mandates sysiern -C.
Aftcr piving a sunirnary nf t h:. main sspccts of the system, the report deal t with
measures to be taken to apply it, nieastires already taken by the Principal Allied
and Associated Powen: and rhc Mandates Commission, and measures which
Ihc Council should take. It pointed o u t that the right to, aI1ocare niandatcs
beIonged to the Principal Powcrs. S i t u , however, the mandatory wouId govern
in lhe name of thc Leagile of Nations, the allocation should be confirmed by
t h c kague.
The iiext issue was the detmtiinatioit of the teriiis of the mandaies. Mc. Hy-
ntans poinred out ihat this qi~estioriwas onIy partially solved by Article 22 (8)
of ihe Crivenant, since most of ihe mandam would conrain many provisions
vther than ihosc rclating to rhe degr~u:of authority. A5 regards Article 12 (8)
he concludcd:
"II seerns to mc thiit ;:he real cxplanation of paragraph 8 of Article 22
is as fotiows. When this Article was drafted in Jmuary 1919, ils authors
supposed rha t the convcnt ions dealiny ivi th the Mandates could certainly
bc includcd in the l'reaty i tself, or forni annexures tri it. Tt w3s alsn rhoughi
at that tiine that only t ht: Allied and Associatcd Powers wurild k con-
sidered as Original hfenibcrs or the Leaguc of Nations. In other words,
thal on thc day of its foiindation they wnuld he its nnIy Members. I t was,
therefore, i iitended in using ihc words 'the hlernber; of the kague' lo refer
to al1 the signatories excsp r Gtrmany of the Treaty of VcrsailIes &."
The rcport procccded:
"How is paragraph 8 i o be applied to the prtrent moment? Ii is in prac-
tice almost impossible tc apply 11teralIythe procedure which we have just
defined. How could the tisscnt of al1 those signatories of the Treaty of
VersaiIIes who are MernSers of the Lcague k obtaincd?
. -
:- ibid.,
C'oilf.rerrre rie b Puix
pp.
1915-1920, Partie VI, A. lc' Fÿrjc., p. 327.
399-416 (Annexei II t o VIII).
?' t'ide Kcport by Mr. Hymans in tlie Council tif the Leagut nT Nations, L. r$,V.,
O.J., 1920 (No.61, pp. 335, 335.
' Vide Wright, op. cil., pp. 47-48,50; Temperley, op. cil., Vol. I I , pp. 237, 239;
Hall, vp. cil., p. I36;House, E.M.and Scymour. C. (eds.), What Reully H a p p e n ~ d u t
i'ar'nris ( 1921), pp. 227, 440.
L. o f h i . , O.J., 1920(No.t), p. i34.
Ibid.. p. 338.
WH[TTEN STATEMENT OF SOUTH AFKICA 555
29. On 17 Decernber 1920 the Council cansidered a memorandutn prcpard
by the Secretariat and containing suggestions for atnendrnent in certain respects
of rhe draft mandatcs h a n d d in by Mc. Balfour '.
Thc Council arrcepted th[: suggcsted amendments, crinfirmçd, inter di({,the
Mandate for South West Africa, and d c f i n d ils tertns.
The relevanr pariions. of the text of the Balfour draft mandate for South
West Afrim which wert: arriended are here quoted in juxiapaposition to the iext
thereof as amended and :dopted by the Council rcsolution of 7 Decernber
1920.
Tize BolJiiuu cii.afi mcindare f;)r Gertnun as nmcndcd ntid/inn[iy adopied
ïc~-i-r
Sotirh Wesr Afiiccr sul>milferi for
crpproval.
Insertion of a fourth patagraph to
the preamble.
" Whercns, by the aforcmentioncd
Article 22. paragrapti 8 , i t is provided
thal the degree of auihvrity, coniroi
or adrninistratioii to be exercised by
the Mandatory no1 having heen
previoiisly agreed upon by thc Mcm-
bers of thc tcague, shall k cxpljcjrly
defined by the Council of the League
of Nations:
"The Council of the t.eague of p h c Council of the k a g u c of Na-
Nations. . . iions . . .]
Hcrcby approves of thc ferrns of Conftrining iht. said Mandate, de-
rhe Mandate as follows: fincs its iertns as folluws:
ARTICLE 7 ARTICLE 7
The consent of the Couiicil of the 'Thc wnscnt of the Councit uf the
League of Nations is requirtd for any League of Nations is required for any
~iiodificationof thc tcrms 01' the pres- modification of ihc tcrnis of the pres-
eiit rriandate, provided rhat in the ent mandate."
case of any modification p~riposcdby
the Mandatory, such consent may k
given by a niajority."
30. The rensons for the inscrt ion of the foiirrh paragraph or the preainblc and
for I hc amendment of the tert of ArticIc 7 arc çxplained in a report to the Coun-
ci1 of the League by Viscount Isliii on 20 Fcbruary 1922 2.
According to the Ishii ra:pori, rhe fourth paragraph of the preamble was
inserted-
". . . to dcfirieclearly the rclativns wl~icti.under the rerms of the Covenant,
shauld cxist b c i w c ~ nthe League of Naiions and thc Council un the one
hand, and the inandarrtry Power on the ot her . . . 3".
Tlie proviso to the first paraçraph of Article 7 was deleted-
' lbid.. Hall,op. c i l . , p. 153.

' 1.. o j ' N . , O.J., 1922 (Yo. 8. Part II), pp. 849 e t se(!.
Ihid., p. 850.
556 NhMIBIh (SOUTH WEST AFRICA)
". . . l~tcausei t Ithe Courtcil] did nor think it advisahle to cornider the
possibilily of altering thc tcrms of a mandate by a decision taken on a
major ity vote '".
31. The fuiictions of tlte Leaçue of Nations in r e s w t of Mandates were

exercised hy the Corincil, the Asscmbly and the Permanent Mandates Cammis-
sion.
32. The Courrcil was t l body
~ to wtiich every mandatory was ultirnatcly
amuntable. It was to the Council that the mandaiorics had to render annual
reports l , Io its "satisfaction" '.
The Coiinci[done had the power to iake decisions and address recurnmen-
dations to the mandaturies 4.
Article 1. of the Ccivenan t entitled any Member of the League not reprewn tcd
on the Corincil "to scnd a Repr~cntativcto sit as a rnernber at any meeting of
the Council during the consideration of maiters spccially affecfing the intetests
of t h t Memher". 'This provjsion enabled a mandatory t o be represcnted whcn
the Counci t considerd matfcrs rclating to its own rnanàate and to mandates in
general.
ln term:; of Article 5 of the #venant, decisions of the Council rcquired
"the agreement of ail ihe Mcmbcrs of the League rcpresented at the meeting",
(Iialiçs adricd.) Whether a mandatory could cxercise its vote in the C'ouncil in
such a w a : ~as ta frustrate ttie unanimous view of al1 the other Membcrs on a
matter affccting its ~ w rnandatc,
n was ncver raised, biit it is now settIcd law
that a maildarory did have this right 5 . In fact no occasion an which there was
such a division of votes evzr arose; al1 Coiinci[ decisioiis concerning mandiitcs
were iaker:. unanimousiy 6 .
33. The Assembly derived i t s powers i i i rcspcct of mandates From Article 3
of ihc Cov:nant in terms of which it could "dcal at its meetings with any inatter
within the sphere of action of the Lcaguc . . .".
At rhc First Asscmbly a "working basis" was, however, decided on according
to which:
"Nitithcr budy (i.e.,the Assembly ar thc Council) has jurisdict ion to

render a decision in a inatier which by the Treaties or the Cwenant has
hem cxprcssIy cornn~ittedto rhe or her organ of thc Lcague. Ei ther bady
may discuss and examine any matter which is wi thin the cornpetence of the
League 7".
Thus, in respect of mandates, the Assemhly's role was çonfincd to-
;'. . . the exercise of a artain moral and very general influence in this
L. of N.. O.J.. 1922 ( S o . 8. Part III)... .D. 854.

~ r t : . 2 2(7).
Vidt, e.g., Art. 6 of the Mandate for South West Africa.
' Vide The ~Mundate.~ Sy..siem-Ori~in-Pr'rinciPles-AppIictltioii (1 945), p. 3 5 ; i iall.
op. cil., p. 174; PMC, M n . ,1, p. 5.
Vide para. 83, infiri.
Vide V ~ f i nProcedure
g on Questiuns uclnling ro K r p o r t . ~and Peiifions c o n w m i n ~
tlw Territ.or.y of Sotirilh W e s ~
.4fr jcu, AdvÏsury Opinion, I.C.J. Reporrs 1955, pp. 100-
101. (Judgc Lauterpachi's separate opinion.)
' f.. of hl.. Assernhly, Rec., 1, p. 320.
domain. IL- function may bc said to bc to maintain touch between public
opinion and ihe Council '."
34. The Permanent Mantlates Conmission was instituted by iIte Council on
29 Noverriber 1920, pursuant to the provisions of Article 22, paritgraph 9, of the
Covenant, in icrrns of which its ftinctions werc 30receive and examine the
annusil reporrs of the mandatories and to advise the founcil on al1 rnatters
reIating to the observance cvf thc mandates7*.
Article 72 of the Cuven;rnt did not make provision fur petitions froni in-
habitants of inandated tcr;itories. nor did the mandate instruments do so.
Petitions wcre, however, sent to the Permanent Mandates Commission, and au a '
resul t r he C:ounciI, at i ts 231-dsessien in 1973, framed rules rc1aiing to the pro-
cedure to bç adopted with rcgard thereto. In tcrms of these rules, pctitions fron?
"curnriiiinities or sections cd the populations of mandated areas'' were ta be
subrnitted onIy through the mandatory concerned, which would be entitled to
artach "such comments as it might think dcsirable". Petitions "rerarding thc
inhabiiants of mandated ti:rrjtories received . . . frum any source othcr than
that of lhe inhabitants thcmselves", wcre to be addresscù to t h e CIiairman of
the Conirnission who had tc, dccjdc whethcr lhey should be regardcd as "claim-
ing attention". If so, the niandatory concerncd was then Io be askcd for iis
comments thereon 2.
'I'he quesiion whether thr: Permanent Mandates Commission wzs tsentitled t#
gmnt ors[ hearings to petitioners was raised on several occaqinns in thc orgrrns
of the Leagiie, espccially driring the years 1926-1927, whcn a proposri[ for such
hearings "in certain cases" met with consiJerable opposition. When the views
of the mündatories were sriught in regard thcreto, they unanimousIy expressed
their opposition, with lhe result that the CounciI on 27 March 1927, dccided
rhat "thcrc is 110 occasion to modify the prowdure which has hitherto been
followd by the Commissinn in regard to this question 3".
35. In ccinstituting thc Permanent Mandates Commission. the Council
decidcd, irrter czli(~,that il was to consist of nine memhers 4, the majority ta be
nat ionals of non-mandatory States. I t further provided that :
"Ali rhc Mernbers oi"the Commission shaI[ be appriinted by the Council
and selected for ~ h r i rpersonai n i e ? i aird
~ ~ cornpetence. They .chai/ not hvld
nny ofice whirfr prrrs ihmr i t ~
a pnsirioir of direct depe~idenceon rheir Goverrr-
nwnts wffifemember.s g f rlie Conimi.s.~ion (Italie added.)
Thc Permanent Mandatcs Commission was described as-
". . . essentially an adrisory body-a body whuse duty it is IO examine and
rcport-designed to assisr rhe CounciI in carrying out ils task. Tts work i s
prelirninary in characier. Constitutionally, it has no paivcr to tnke deci-
sions binding on the inandatory Pnwers or ru address direct recurnmen-
Jations.to them. Tts coiiçliisions arc not finni until they have been apprvved
by the CounciI 6.''
T i ~ aItictndur~sSysrem-i3rigiiz-Principi~s-AppIicario, p. 35.
L. uj-N,, U,J,, 1323 (NO 3). p. 300.
j ~hid..1927 (SC>. 4). p. 3r,8.
' Lalcr incrrasrù 10 IO and thcn to I I.
j t.offi'.. D.J.. 1920 ( N o 8). p. X7.
7'he hfundlrrrs &stcrn- Origin--Prit~~:@Ies-A~~plir~~ion,p. 35 . Vide also van

.4sb~kF , . M., "Intcroiiti<inal Law and Colonial Administration", Grorius Suc.,
Vol. 39 (19531, p. 14.
The Commission itself rcalizcd and stated that, having adopted itie rule or
"absolutc independence and impartiaiity". its Members should exercise thcir
authority "les as judges from whvm critical pronounccnients are expected,
than as ~~[iaburators who are rascllved to devote their experience ancl hcir
energies t~:, a joint endeavour '".
36. Altnougti its powen wcrt: purely advisory, the Coniniission developtd
into an elluclive imt itution. rrt this connectioii Mr. Kappard-a! first Secrctary
and later For a long rime a Mernber of lhe Conimissiun-siatcd:
"As the Commission. thatiks to the persona[ corripeten= and gcncraIly
recognized independence of its mernbcrs, came to cnjoy a real respect and,
inùccd, quitc sonie prestige, an internationaI or rather a supernaiionaI
moraI authority spiang up. . . . In its capciçiiy as a purcly iidvisory body
. . . tlre Permanent Mandares Commission had no powers of coercion
whati:ver. As a universalfy esteemed group of inipartial and indepcndcnt
expetts, however, ils powcrs uf pcrsuasi~nwcre indisputably very effec-
tive. i \ l ~mandatory governn-ient . . . coüld aKord to disregard i t s advice for
fear of no at her sanctions but those or public and parliamcnrary opinion.
The net result \vas a williny co-opcration between the League and the
inanchiatory governmcnrs, and the enhancernelit of the standards of ad-
ministration in thernandated territorie and tven,by a natuwIrepcrcussion.
i i i wlonial adniinistrativn everywhcrc '."
37. Thcre was at al1 tintes cordial co-operation between South Africa and the
Pcrmancnt Mündatcs Conimissinn. On masion diferences of opinion ürow-
as was the case also with regard io othcr mandatcd icrritorics-but this \vas
inevilable in view mainly of unccrtainties and obscurities in a new systein.
opcrating undcr thc sornewhat vague terms of the coniproniise etnbodied in
Article 22 of the Covei~ant . And wiih bolh Suilth Africa and thc Conirnission
approiiching their task in the spirit of that compromise, tlie problerns which
arosc wcrc always satisfactorily salved -z.
E. AmIysis of the Mandate for South West Africa
38. It ic; convenient at this stage to proceed to o morc dctailcd analysis of thc
mandate for Soulh Wmt Afriça in the çontcxt of the system as a whole.
ArticIc 22 of the f ovenant of the League of Nations cornnienced with seliing
out tlie signataries' agreement thai to thc colonics and territories in question
". .. therc shoiiId bc applicd the principle that the well-being and develop-
nient o f . . . [the inhabitants] form a sazred trust of civiIization . . ." It further
recorded their agreerrieni ihai "sccuritics for thc performance af this trust''
should be embodied iir the Covenant.
Thc second paragraph of the Article stated that "the bcst merhod of giving
practical cRect to lhis prinçiple" would bc to "cntrust" the "t utelitge" of the
"peopltx" conccrned to suitable "advanced natioiis", wiIling to accept it, whu
woutd "cxcrciw-' i t "= mandatories on behaif OC the League".
The wording of the Article as a wholc. as w e l l as its historical background,
sugçest. strongly that the refcrcnces to "trust", "t utelage" and "mandatories"
wcrc not intcnded to bear technical IegaI meaning, by exact or close amlogy to
-.
L. nfrh'.. O.J., 1'121 (Nos. IU-12). pp. 112.4-1125.

Rappard, Vuriu Potitira, p. 184.
For further details sw Counter-Mernorial ftlcd by t hc Govcrnincnt of the Re-
public of SouiIi Atrica in 1.(7.J. Pleading.r, Soiiffi W ~ s Afiica,
t Vol. I l , pp. 24-32.
WRITTEK STATEMEB?. OF W C ï H AFMCA 559
So, for instance, the
inunicipal law institutions cd trrisr. I i t i ~ / a g eand ~na>idnru~ir.
English word "triist", whicki is capübIt of u teckmica[ lep[ ineaning i+s well as of
a inore generai ordinary m:aning, depending on context. was rendcred in thc
Prench vcrsivn by the word nrissian, meanjng in rhis context "fssk" or "under-
standing", t l~usconfimjng that a non-tcchnicai conr~utaiionof "rrust" was
intended. The conception, alsu, or the, "tutelage" of a backward people or
community by an "üdvanct:d nation" coiild al most have b e n intended in a
brvad, ii~etapliorical sense. J t is signifiant that in the aciuai mandate in-
struments which canie in t o cxistcnce su bsequent ly, the words ',trust" and
"t~itelage~'did not appcar ;it all. Evcn in the case of lhe words "mandatory"
and "mandate". which \vert retained in the niandütc instruments thcinse[ses,
the analogy, i f any, with a privütc law ~?inti&~iriizwa? prohably intendeci to be
d the broadest and most gr-nerd naturc only. The more cietüiled and tcchnical
aspccts of the private law institution could hardIy have bocn known to the
Peaœ Confcrenw as a ivholt-as diutinci possibly frorn certain of its Members
-and cannot therefore faiily be presurned to havc k e n intended to bc in-
corporüied in its cuvenants. It W ~ probabiy
S hy reason of considcriitions such as
these thür the rnajority or th? Court in thc 1950 Advisof? Opiiiion expressed the
view ihat i t was ". . . no1 ~iossibIet t i draw any concliision by anrilogy from
thc notions or mandate in ~iationalIaw or frnm any othcr Icgal conception of
that law IF'.
I t seems, then, that whar was süid in rhc opening pai'agraphs of ArticIe 22
conccrning a "sacred trust" and "rutelage", m u t bc rc~ardedas king descrip-
tive of the idealistic or himunilarian objectives involved in ihe mandates
spsieiil, and t kat thc n.fercnc:i:tu "mandalories on tKhalf o f the League" is to be
understood as affordiiig a broad indication of thc niclhud whercby those
ohjectivcsivodd besought to bc aliained. It js, therefore, to the more detailcd
provisions in Articlc 22 for "securities for the performance of rhis trust" that
regard must Ix:had in ordel- to deterniine the juridical content uf the mandates
sq'stem as envisaged by rhe sigmtorics tu Ihe Covenant.
39. On analysis, the xcurities enihodied in the provisions of ArlicIe 22
wcre thosc provisions requii-ing the mandatory to provide certain safeguards in
rlie interests of the indigenoris population. to sccurc certain interests or benefits
for Meinbers of the League and their nationals, and to render to thc Council
of the Lcaguc an annual report in reference to the 'l'erritory cvmrnitted ru ils
cliarge. Furthermorc, a Permanent Mandiitcs Commission would receive and
examine the reports and advise the Courtcil on al1 matlers reIaring to the
observance of ihe rnaiidates; and the degree of authority, mntrvl or adminis
tratioii to be exercised by the mandatory was to l x explicitly deftned in eafh
case-hy agreement kt\vce;i Members of the Lcag~ieor by the <:riuncil.
40. II \vil1 be obseived rlial Ar~jcle22 did nat itsclf purport to put the
mandates systcm inio ope~.cion.It sct forth the agreed ideilistic ohjectivcs of
Ihe system, agreed iiiethods wherehy it rvouId i x put into operation and agreed
fcaiures wl~ichwould be iiicorporrrted rhere~n.The provjsiuns of Article 72
cIeai-[y envisaged that concietc stcps would have to be taken for the cornpiele
constitution of thc systcni, nameIy towards entrusting ~ h e"tutelage" of thc
inhabiiants of particrilai ~erriluries10 particular "advanccd natiotis . . . wiliing
to accept il" (Art. 22 (Z)), mnstituting thosç "nations" as manùatorics on
behalf of the League (Art. 2:: (2)), and expIicitly defining the degree of authority,
controI or adininistratioii to be exercised by therri (Art. 21 (8)): arid those
provisions prescribed conditions which ir7erein this process to be irnposed as
ohligat ions upon the mandatories, substan~ivelyin the interests of the mandared
peopies arid Members of the Leagur: ( v i d e Art. 27 ( 5 ) and (6))and prmdurally
with a v i w to internationaI supenfision of tlie "observance of the inandates",
Le., d ihr: e x e r c i ~of the substantive powers and cornpliance with the su&
stantive obligaiions (Art. 22 (7) and (9)).
In other words, Article 22 was an agreemetit between Members of the k g u e
as such, ri:garding â mandales system IO bc constitutcd in pursuane thereof.
Thc systcrn ilsclf, however, tvoutd begin to oprate only upnn the conferment
on the rejpective mandatories of speciiic niandates in rcspwt of particiilai'
territorles. and upon the spcciftc definition of the mandatories' rights and
obligations in conncct ion therewith.
41. The concrete steps envisiigcd by ArticIc 22 wcrc duIy takcn, in the fojlow-
ing order :
(a) The I'rincipaI AlIied and Associatcd Powcrs (in whosc favour Gcrmany
was tu renounce her oveseas possessions by Arts. 1 18 and 1 I9 of the
Trcaiy) aIIacated the various ierrirories to difkrent mandatories, and.
inter idiü, decided on 7 May 1919, that the Mandate for South West Africü
shouId be hcId by South Afriw '.
( 6 ) ,Draft mandate instrunients were çonsidered by the Principal AIIied and
Associated Powers and, aftcr agrccmcnt arnongst thcmxlvcs and ivith the
desimaleci mandatories as to the ternis thereof, submitted to the Councii of
thc League 2.
(c) The C:ouncil of the Leaguc confirmcd thc niandata 3, thcrcby conslit ut ing
the desimated mandatories as "mandatories on behalf of rhe kaguc".
(4 The CounciI further, in pursuance of Article 22 (81, defined the terrns of the
rnand.ates in the marner sct ouf in thc instruments of mandate This '.
was generalIy in accordance with the drahs submitted, subject to certain
altcrations 5.
42. The provisions of thc Mandstc for German South Wcst Africa, as
defined by [he Cuuncil on 17 Uec~rnkr1920 were typical of "C" Mandates.
Thc rnandatory's fitle appeared from rhe Prcambte which set ou1 that there was
conferred and confirmcd, in accurdance wirh Article 22 of the Covcnant,
"a Mandate .. .to adrniiiister tlie territory aforcmentioned", which the
mandatory had undertaken "10 exerçise .. . on behalf of the Leaguc", and from
Article 2 which providcd that the mandatory should have full power of adminis-
tration and Iegi Jation owr the Territory "as an integraI portion of the Union
of South Africa", and that il miyht apply the laws of the Union of South
Africa to the Territory, subjecf to such local modifications as circurnstctnces
rnight reqirire. The rnaadatory's substantive obligaiionç were set out in Articles
2 to 5 and its obligations regarding süpcrvision in Article 6, twhiçh required the
mandatory to render tu rhc Council of the League, to its satisfaction. an
annual report "containing fulI information with regard to the territory, and
indicatirtg thc masures taken ta carry uut the obligations assumed under
Vide p x a . 25, s u p r ~ .
' L. uj'N., O.J., 1921 (No. I), p. 89.
End of Preamhte of hlandate for South West Africa aiid also of other "C"
Mandates.
' Vide cnd of PreambIe.
'Vide para. 24, supra.
WRITTl3N STATEMENT <>FSoiTill AFRICA 561
Articles 2.3,4 and 5". Article 7 provided fhat ihe consent of the L'ouncil of the
League wss r c q u i ~ dfor 8ny modification of the tcrms of the Mandate and
also set out the martdatory's agreement ta the submission to the Permaneni
Cour1 of International Justice of disputes briwren itself and another Mernkr of
the Leaguc of Nations, in :;Ofar a s they related to the iincrpretütion or appli-
cation of ihe provisions of I he Mandate and #uId no1 be settled by nego tiation.
P. The Mandatory's Obligation to Report and Acconnt
43. This section is devotd tu an analysis of a rnanùatory's obligations with

respecr. to supervision of ihe administration of a territory undcr its control.
The purpnse of lhis analysis 1s to ascertain whether these obligations were
capable uf s~rrvivingthe aisolution of rhe League of Nations. in the sEnx
that after such dissolutiot a subst itutian of ssupcrvisvry organs could have
taken place without the n w d of fresh consent on the part of a mandatory.
Such a result could notiocallq. have b e n acIüeved by ~ h eoperation OP somt:
principte of inrernationa1 1;lw opcrating indcpendcntly of thc intentions of the
parries, or by some agrecmcnt incorporated in the express or intplied terrns of
the Mandate. Tiiese varioi~spossibilities wiII be deal[ witii in lurn hereafter.
44. There was no suggt:stion by any Member of the Court in the 1950
opinions, or in the Judgmi:nt and opinions on the Preliminary Objections in
1962 or ttie Judgrnent and ripinions on the Merirs in 1966, that there exists any
principle ~Psuccession,wh~ch,opcratirtg ÎnJcpenJentIy of the intentions of the
parties, could autornaticall:~have effecteda substitiition OF the United Nations.
its organs and/or Members, fur the League of Nations, its organs andior
Mem bers ' .
The only rcsI discussion ofthis topic is found in the 1961 dissenting,opinion
',
OF Judge van Wyk whe;e hc held that no such principle exists, quoking,
Nifer dia, the following sr:itemcnt of Judgc Levi Carneiro in tlie Amharirios
case:
"Even when the arg:~n which wils formerly conipetent has been abolished,
Judge Tanaka's tcIeological approach in 1966 may be said io achievc niuçh the
srimr result rts an objective princiflt of international law. Vide the discussion there-
of, Chap. IX,para. 63. infia. Howerer, Judge Tanaka cxprcssly statcd that "we
caiinot rccognire universa1 aucct.ssion in the juridical scnsc in thcse caxs" (p. 274)
and based his conctusicin thai a succession of supcrvisory ponrershad taken place tin
an interpwtation of the Ma,rdate, tilbeit hy n prucess of interpretation wliich was
ncit ciincerned with ascerrair,ing the inleniions of the parties (pp. 276-278). For Che
reasons staied in Chap. II, supru, it is submiiied that Judge Tanaka's approach
should not be followcd. Hcfcrcnçe rnay also be made to ludge Alvarez' dissenring
opinion in 19513 in which k:c cuncluded that the Unitcd Nations had succccded
"ipso jüc~o" IO rhc Lcrigue * i f Kations (p. 182). Judge Alvarez failed, hriwevcr, to
lormtilatc any Icgal prinçipl-: o r rulc on which his conclusion ctluld he based. nor
did hc citç a n y authcirity in i;~pparfthercof.
South West Africu, Pir,finrilior.v Ohjeciinn.s, Jirdgi?tenr, I.C.J. Aeporrs 1962,
pp. 643-604.
it.; pclrvers wnnot be regarded as nulornaiicüIly transkrrcd to the new
organ which rcplaccs it '."
Judge auslamante, in his separaie opinion in 1962, aIso in pawing rejected
thc possiEi1ity of cirhcr "automatic" or -'ex oficin" succession of the United
h'atioiis tri the Leaguc of Nat ions 2.
45. T i t e Applicants in the .Yo~i/hW w Afiica cases, in their Obxrvations on
thc Prclirninary Objwlions, rcIicd on a "Doctrine of Succession ""
which,
they then said. had forined the basis of the majoriiy opinion in 1950. Thcy did
noi, howcvcr. indicatc th<: exact legal origin OF such doctrine. This doctrine
was anaIy!;ed and, it is respectfuliy suhinitted, refiiied by Soiith Afriça in the
pIwdings atid oral proceedings, and received rio support from any Mcinbcr of
the Coiirt in 1952. En the oral prwewling on the ~neritsin 1965 the AppIicants
thereupon expreacd rcgrct for having uwd ihe expression "aurwtat ic suces-
sion" and stated explicitly that they did not conceive-
". . . ihat the United Nations acqiiired title lu the kague's supcrvisory
power over niandates by virt ue of somc gcncral international legal principle
of devolution or succession, aliicirdr the mandate '".
It waf probatily hy reason, i l l r ~ r~l!il~, of this concession that the ppossibility
of succession by virtue of ati objwiive rutç uf intcrnationa1 law was not dealt
with in thc Judgment and opinions in 1966 j.
46. In view of ihe largely academic nature OC any suggestion of automatic
sucwsiun by operaiion of law, i l sufficcs to statc that the Snuih African
Govemmcnt contcnds that no IcgaI principle exists which could (wit hout
consent o f the parries, and, in particuIar, the mandatory) have resiilted in a
transfcr of supervisory pciwers in rcspcct of mandates tta the llnited Nations.
In the succeeding parrigraphs, the South Africati Governirient will consider
whether siich a transfer could have resulted frorn the express or any inlplicd
t c m s of Ihc mandatc documents thcmselves, Le., Article 27 o f the Covenant
and the niandate instrument.
i l I . The Express Ternzs of the .Wut~duir
47. Alrltough commentaiors frequently employ the broad descriptive terrns

" k a g u c supcrvisit>n" and -'supcrvisory functions of the Ikague", siich phrase-
ology did not owur i i i the relevafit provisions of ArticIc 22 of thc Covcnant or
of the maridale inçtrurn~mrs.Thest: provisions were as fcillows:
(u) Article 72 ( 7 ) of rhe (,'ovetzunt:
"In every case o f mandate, the mandatory sliall render to the Council
an annuaI rcpart in rcfcrence to the territory comniiited Io its charge."
( b ) Arficie 23 (9) of the Covenunt;
"A permanent Commission shall bc constituted to receive and examine
thc aimual reports of thc mandatories and to advise the Couneil on al1
matters relatiiig to the observance: of thc rnandatcs.-'
: Anzhufieln.~,
Yreliinirrurr: O b j ~ r l i o iI~., U . Reports 1952. p. 54.
Suafb Wesi Africu, Preliminury Objrci ions. Judgiueni, 1,C . I . Reports 1962.
P. 364.
I.C.J. Plraiiings, Soutlr West Africtr, Vol. 1, p. 429.
ibid., Vol. VIII, p. 132.
lt was, howcr;er,~entiuncdin a footnote to Judge vvün Wyk's separatç opinion,
at p. 84, with refcrence to the iil tirnate attitude of the Appliçünis as qurited abo~,e.
acçoiint i.0 the Council or thc Lcague in wspcct of cornplianct: ivith the sub-
stantive ribliçations perlainiiig to adtninistrÿtion of the territories and pro-
tectioii aiid dvcloprnent of the inhabitanis. The further obligation or function
of the mandatories relativc to supervision, viz., the îorwarding of wtitions,
was purely subsidiary and dependcnt on the fact rhat the Council was the
supervisory orFan-- which L'act in turn depeiidcd on the obligation ro report and
B~~oUllt.
49. By its conient the obligation rcquired the rnandaroriar to report and
accouni t o a spccific sup-trvisory body, constituicd and functioning undei the
provisions of a particular international convention. I i was noi an obligation lo
suhniit generuIiy io "interiiational supervision" or ro supervision by the
"internat ional conimunity" or "the Family of nations", or "the civilized
nations of the world" or ~ h like.
c It w3s an obIigation to report and accriunt to a
spwific organ of a specific organizalion of certain of the nations of ~ h world,
c
viz., the (ZuunciI of the txague of Nations.
The implicatioiis of this feature are of major iinportancc. Thc kagtie \vas
consritutr:d by a Covenant, the provisions of which were known to the manda-
tories, and to which al1 mandatories wre, initially, signaiorjes. The Constitu-
tion of the Council and ihc manner in which it was to frrnctivn were laid down
',
in the Covenant. As has k e n notcd abave the provisions of the Covcnmt in
that regard required, inter alia, unanimity, as a general rule, for Council deci-
sions (Art. 51, and an invitation to any Memkr of the Lcague nar represented
on the Council to be represenied at any meeting during the considcration of
rnattcrs specially aflecting the interests of that Memher (Art. 4). The Council
would in regard tu mandates be assisied and advised by a permanent commis-
sion (Ar[. 22 (9)). Tt was to supervision through machiiiery governcd, inter n{iu,
by these provisions of the Corvenant, and io no other, ihat the inandatories
conseiitecl t O submit.
50. The practical importance of t he fact t kat the obligation rets tcd to specific
supcrvisory rnachinery, is illustrated by certain statements made by delegatcs
at the Wris Peacc Conference. 11 will be recalIed ihat on 30 January 1919, when
the compromise arrangernmt regarding rht mandates systetri was arrived at, the
South African Prime Minister, Gencral Louis IIotha, starcd that although he
felt wry strongly about the question of German South West Africa and thought
that it difléred entirely fromany question that they had to Jecidc in rhe ChnTer-
encc, he wouId be prcpared to say that he ivas a supporter of the Smuts resu-
lution-
'-.. . bwausc I-ie knew that, if the idea fructificd. the Leaçue of Nations
wciuld consist mostly o f the same peoptc who \vere presenf lhere rhat day,
who understood the position and who would nol makc it impossible For
any xnandatory to govcrn the country".
TO this cxplana~ionby General Roiha, addcd significance is lent by eariier
statements of IM~.LIoyd George and Prcsident Wilson in thc Council of Ten on
28 January 1919. as follows:
"MT.Lloyd Gcorge said thar hc agreed with M. CIemcnccau that if the
League of Nations were made an executive for purposes of governiny. and
chargcd with funcrions whicli it would bc unable ro perforrn, i t wonld be
Vide para. 32, srrprn.

Vide parri. 21. supra.
The duiil function of suwliervision and cv-opcration was again srressed in later
',
reports and ohserevedin practicc '.
The Cvuncil of the Lmgue seldoni rook any action in regard to inandates
supervision save on the basis uf thc Commission's advice, and usualIy acoepted
it. when given; resolurions wcrc tactfully worded as çuggcstions or invitations
io mündütorics 3 ; and due to the consjderabIe reprcscntation of Mandatory Pow-
ers on the Council. it was gcncrally sympathetic ro the mandatories' point of
vie, 4.
Thus ~ h agrccd
c süpervisory ntachinery was in k t vcry carefutly checked
and hnlancxd so as to rcndcr un11kciyany injurinü~,hiased or unfiair interfcrcncc
wirR rnaii&arory govcrnrnent, and, indeed, aj was then apparcntly considered
io bc in tlic bcst intewsts of the inhabilants of mandated territories, su as to
contain the miiiiniuni of pvIit ical elenlent and a rnaxiniurii of indcpendeni
expti'r approach.
52, In the above circtirnstances. the rvording of the obligation to report and
account as relu~ingL V a spccific supervisory authority and no uthcr, was quite
evidently iior a maiter of mere fortri or trchnicality, but onc of basic praciical
importance. As a inaiter of interprctation there can therefore be n o doubi that
the parties never inicndcd nor conternplated any olher supervisory authority
i han t hc C'ouncil of [the League, assisied by thc Pcrrnnnent Mandates Cnjnlnis-
sion.
Since the principlc of contc~nporaneiiywould have to l x üpplied in inter-
preting thc provisions of the itiandate s, thc qucsiion may bc powd whether any
interprerarion could rcasormbly be given to the niandate which would havc
entailed any ubligaçaiion on the mandatory ta sutirnit ditring the igerinie of ~ h e
Lruyiir to supervision hy any oiher iriiernational organization or any other
orgiiri of the League a? regards performance d i t s fuiictions under the mandaic.
It seins self-evidcnt ihüt the answer must ke in the negative. If, for example, a
group of Sratcs which did iiot join the Leiiguc had fornicd an organi7ation of
thcir own, with objectives birnilar to those of the League and witlt organs capa-
bIe of exer-cisinea supcrvisory funct ion in regard ro the governmcnt of mandated
territories, it could surely nui havc bccn coniended thar the rnandarories,
haviiig agreed to siibnlit to "international supervision" bq* Lwguc organs,
niiist for ihüi rcason bc regarded as obliged tu siibmit to "international super-
vision" by some organ o f the paraIIcl orgiinizatinn. Such a contention would
seek to aitribule to ihe nlandatories an obligation to which thcy hiid never
agrtxd; and its untenahility wouId becorne thc more miinifest if the orher form
of siipeivisioii shotild be lacking in the very qualities whicti had made the spc-
cific Leagiie supervision acceptable to the mandatories and had induccd t hem
to agree ificrcto 6,
Sin~ilarIyit could not havc bccn contcnded that the mandaiorics would,
withoiil frcsh consent on their part. be obliged io subrnit to "internaiional
supzrvision" by some other internat ionai organirrition in faci established and
having for its metnbers lurgcly thc sanie States as the bague of Kaiions-siich
----
Yi&PMC:, hiin., VIII, p. 200; Wright, op. ci?.. pp. 196-197.

Y i d ~Wright, o p . cil., pp. 799-200; Hull, op. ci!., p. 209. .
.< wr' , o p . cit.. p. t28.
ibhi,
' IhiO., pp. 87-W.
Yide Chap. I I I paras. 8 and 4, sirpro.
Thi5 a:gument is ttiereforr: nor r n e r c l ~a tcchnical one. In Iogiç and fairncss,
similar çc,r.sidcrations appty a forfinrit o those whicli in niunicipal luu. prrvent a
~iiastçrirurn ccding a service contracr wiihout the servant's consent.
as, for. jnstance, the InternirlionaI 1-abour Or&ariisütion. Again such a conteii-
tivn woiild seek to attribure to the mandatories an obIigation suhstantialIy
different frum that agreed tri hy them in Article 27 of the Covcniini and thc
mandate instrtiments.
53. Evcn within the Leag~ieof Nirions organization, an alleration in the
supçrvisory rnachiiiery prcvided for in the Covenanr could not bc irnposed
upon the mandatories witlioui thcir cunscnt<.g., an alterat ion transferring
the supervisioii froni thc Council to tlie Assembly, or prnviding t ha! the Coüncil
cvuld in rriatters of mandait supervision arrive ai vaIid decisions hy a simple
majority or by a two-lhird!; vote. For again such an altcraiion would swk to
impose upon ihe inandatoi.ies an obligaiion of a content diflcrcnt from that
agrccd l o by tlie~niri ihe Covcnant and the mandate insirunients. Article 26 of
tlie Covenant did provide fnr arnendtnenrs io the Cmvenant, through riltiiica-
tion by the Members whose representatives conipused the CounciI and a major-
ity of thc Mcmbers \vhoçe teprcscntatives w m p o d the As~eii~hly: but it prn-
çeeded to provide that n a ;uch amendment would bind a Metriber signifying
disxnr therefroin, although thc disscntieni woiild ihen ceau to be a Mcmbcr of
the Lcüguc, AI worsi, t hereihre, a inandatory rcfusing to agree to an alteration
in supervisory machincry c:ould l ~ s eits membership in the Lci-igue. but rhe
alteralion coiild not be rcndcrcd binding upon it as a mandatory without its
consent givcn cithcr cxpreisly, or taci tly through acquiescence witholrt dissent
in a Cuvetiant aiiiendi~ientin ternis of Article 26.
54. The considerations set oitt iibovc did not, of course, operate only in
fitvaur of the nirtndaturies, but could have heen ii~vokedagainst them. The
quesiion ii~ightbe posed: ivhat woiild have been the reaction during the lire-
time of the Leagtie if a par ticular niandatory wcrc tu have claimed a right to
perform i t s obligation of "interiiatioiial accouiitnhility" by subntittinç reports,
not to the CounciI of the Ltayut, btit t O soine niher internat ional urgunizaiion,
or Io some other organ of the Lcaguc. or in snmc othcr maniier than provided in
its mandate instrument or tlie Covenani? Tt i s quite clear that such a daim
ivuuld have k e n surriniaril:~rcjeçted.
55. As a martcr of interpretation. i t is therefore subrnitted tliat there cannot
possibly 'ne any warrani for reading the niaiidatory's duty 10 subniit t o super-
vision by the Council or th< Lcaguc as meaning supervision by any othcr inter-
national organization, or af heing equivalent to a wider obi igation of "interna-
tional accounrahility" or !:omeihing similar which could have survived the
Jissotuiion of !he teaguc.
t V. Wkriker a11 Iniplied Terw Cm Be Rrcid itrio the Mcinllnre Imrtrn?rirr
56. The furthcr qi~estior,then arises whether there can k read iirto the
niandate instrunien t an impiicd tcrm which could have had the eiTeci of prevenr-
ing the lapse, on the dissolirtion of the Lcague, of the mandatary's obligations
relaring to supervision. Th.:Court in the 1950 Advisory Opinion aliparently
did no! iely on any such iriiplied ierrri, as will be pointed ou1 hcreuoder In '.
the proceedings un the PreIinlinary Objections in the Soiifh Wesr Africn cases.
Jtidge van Wyk dealt with the possihility of such an iniplicd teriii only to rejcct
it '. N o nthei. Judge dealt viith lhis aspect ai that stage of the procedings. In
Vide Chap. lx. paras. 5 ot se<].. infru.

South West Afiica. Pre!inriizrrr? Objeciioizs. f udgriitn:. I . C.J. Reoorfs 1962,
pp. 605 cf s ~ q .
568 NhhilBI.4 (SOUTH WEST AFRICA)
the proceedings on thc merits, Judgc van Wyk again considcrcd this aspect
with the sa.me resuIll and he was supported therein by Judge Tanaka 2.
57. The feütures discusscd above to indicrite that the express tcrms of the
mandate dncuments mrrectly reflwted the actual intent ions of t he parties there-
to, in thenisdves refute any suggestion of ail ~ n ~ p l i eterm
d running couiiter tu
such express terms. But thcre is a further fundamental obstacle io ans possibility
that the authors of the mandates systeni woiild have intended to provide for the
consequcnxs of thc futurc dissolution of the Lcaguc of Nations. Such provision
would hav.: been required only if the possible friture dissolution of the Leag~ie,
or rhe creation of ariother body to rake its place, was contenipIated in the
ycars wheii the mandates systeni was established. T t swms clear that no such
conteniplation existed.
Thus, Jitdge Bustamante staicd in his separate opinion on the PreIiminary
Objections :
"Ol~viouslythe provisions of the Covenünt which had institutcd ihe
internationai Mandates Systern did na! envisage the poss~bility of the
dissol~tionof the Leagur: of Nations and did no1 rcircsee i i s possible effects
on rhc Mandate agreements in forcc 3."
Judge Jmsup referred to rhe League Systeni as "a systein which it was hndly
Iwped iri 1913 wouId becorne universal 4". In iheir joint disseniing opinion in
1962. Judgcs Sir Percy Spcnder and Sir Geriild Fitzmaurice expresscd the view
that it is-. ,
". . . evident that tliose concerned did iior foresee, and woutd have refused
to contemplate, a possible break-up of the k a g u e j".
Judgi: v;tn Wyk statcd as follows:
"Tlie [ru th is t ha1 the possi biliry of the dissolution of rhe League was not
contcinplatd when the Covenant was agreed to or when the Mandate
DecIantian was made . 'b . .
In 1966 the Court round t hat the çircumstances of the Lcague's dissolution
wcrc "nci~hcrforcswn not fnreseeahle" by the frarners of t he mandates systcm '.
And SudgeTanaka said that actincIusiun thai t hc United Natioiis liad succecd-
ed ro the supervisory powers of the League --
". . . catinot be derivcd from thc ~ ~ p r eor
s stacif intcnt of the parties to thc
Mandafc agreement and those concerned, because ai the period of tlie
inceptinn of the Mandate an eveni such as the dissoIutinn of the Leagtie
surely w u l d not bc foreseen by them . . .
58. Even if oncwere to assume, c0ntrai.y to the generally accepted facts. that
thc authors of ihe mandates s y s t m did contempIate the possibility of a future
dissoIution of the Ltaguc, it is still clear that no tacit intcnt can bc irnputed to
Snlrrlt West Afrirn, Second Phase, Judynren!, I.C.J. Reports 1966,p p. 84 et serf.
Ibid.. ri. 275.
' South Wrsr Africa, I>rr/i~ninnry I . C.I.Keporis 1962, p. 362.
U b j ~ c ~ i o iJitdgn~en~,
is,
+ Jbid., p. 41 2.
Ibid., p. 514.
Ibid.. p. 601.
Sorrtfi West Apicn, Scco#?dPhase. J~idgrnrnr.1.C.I. R ~ p u r i s1966. pp. 48-49.
Vidr also Judge van Wyk at p. 87.
Ibid., p. 275.
WlUTTES 57-r\l-EMEhT (IF .U)IITII AFKICA 569
them which woiitd have had the effect of the substitution of a ncw supcrvisory
'
organ. It has heen pointe6 out abovc ihat ccrtiiin of thc mandittories couId
nnly rvith great dilliculty b ~prevailed
! upon to accelit the inandares syslern ar al1
iri substitution for contemplated annexaiion; chat a specia! compromise formula
haà io be devised in order t o rnoct thcir dificuIties, and that ttieir acwptance
rhereof, with reluctance, w i a strongIy influenced by the composition and nature
of the supeivisory organs. It is thereforr: alrnost inconceivable thar they wouId
have agreed in advance in 193) to submjt to supervision üt some unknown date
in the futurc by a body, the wiiiposition, procedure and attitude of which were
ex Iiyporhcsi unknown to th.?rn. This becornes the more apparent if one adds the
considcm tions ttiat the circuii~tanceswhereunder the Leaguc woul J be dissolv-
ed would in thc naturc of tliings have been unknown and unpredictabIc in 1920,
and that the authors of t he Mandate made express provision in Article 7 rhereof
for irs futiirt amendnient. Surely, had the matter W n raised, the reaction of at
Ieast sotlie of the prospectirle maridatorics would have ken that the mattcr was
!ci bc Icft for further ügrecinent in pursuance of the amendment provisions, in
the lighr of the as yet unkiiciwn circurnstances that rnight apply at the lime of
postiiIated diswhtion of t i i ç kapuc.
59. It seerns clear, lherctore, that no such iittplied agreemenr could possibIy
have been concIudcd. Furt her confirmation for Ihis conclusion is found iri the
facr lhat no State has ever alkgcd thc cxistcncc of such an implied agrecnlent.
During t h ç discussionscon:erning the future of the mandates by the foundersof
the Lnitcd Nations in 1945-l945and hy the Memtiers of the League at its final
session in April 1946, thçre was ampIc opportunity and every incentive for
reprcscntativcs to refer to such an agreement, if it \vas thought that one existed.
No such 1-eferencewas made. Again, in the discussions during the ycars 1946-
1949 in the various organ:; of thc Unitcd Nations, conccrning the conrinued
existenecof thc Mandatc, n o suggestion was iiiade of any implied agreement cnn-
cliided at the tiine of the crealion of the Mandate, providing for ii possible
futlire succession of supervisors organs ?.
60. Tt is consequcntIy siibmitted that, Iikewise as regards inicrpreration of
its express provisions. their was nnothing in the Mandate or its surrounding
circurristances which woukl, by way of an imp1ied terrn, provide a warrant €or
rcjcct ing thc prinia hcic crinclusion that the Mandatory's obligation Io report
and account lapsed on the iiissolurion of the League 3.
.'Z Jlidiriuf Proirnuncenienrs
61. As lias k n pointeii out 4, i t has been found convenient ta dcvute a

scparate chapter to the prt:vious pronouneements of this Court regaiding the
question whether a substitrition of s u ~ r v i s o r yorgans occurred on rhe dissolu-
lion of ihe Leaguc. It will Ix denionstrated that the weight of judicial opinion
favours the view that sucb a siibstitution could not have taken place without
' Y i d ~paras. 1 3 et scq.. sr:pru.

Sm generally in regard 10 ihis ropic, the dissenting opinion of Jridge van W S ~
in Sarzih Wrsr Afiicu. Prelit)ii?ary Objecrions. Jiirfgtnenr. LC.1. Reports 1962,PP-607-
6 IU and Secund Pjtusr. Jifdgi??e~ir, I.C.I. Reporrs 1966,pp. 84-91. and Ctia p. V i l i ,
itijra, for a rcview of the reli:vant eucnts.
' As far as can be ascertaincd, no writcr UT rçpuiç fias ever tnade a contrary
suggestion. Yidc Chap. IX. paras. 20-27, i n h .
' V i d e C h i i p . V I , para. 16.sirpru.
frcsh comcnt of a mandaiop, and thdt such conwnt waç noi given in t h t case
of South West Afi-ica '.
Since. however, Judge Jessup in 1966 niade certain statements pcrtaining t o
historiml cvcnts and thc miindatcs systcm rvhich may uppcür to i x in confiict
with coitti:nt ions advanced i n this Chapter, certain aspects o f his disxnt ing
opinion will be considered below.
62. In f i s d~sscntingopinion in 1966 Judgc Jcssup dcült at sonic l e n g ~ hwith

the "ilatui-e of the supervision of the mandates" and with an argurncni of thc
South African Governmen[ (the lhen Respondent)which stressed ihe I-oleof the
CounciI 2nd of the Pcrrnancnt Mand~ttcsCommission "as cxcIttsi\*e instru-
inentalitie:;of supervision *". This was in the course of a sectioii of his opinion
in w h c h t e contended thal on a proper interpretation of historicaI events and
of reIevant internatioiial instruments, the Court laid too much stress on the
roles playcd Iiy particular organs of the League in supentisingmaiidatcs :.
It should bc borne in mind thal, for prcscnt piirpoxs, Judgc Jessup's corn-
rnents on this topic are relevant oniy to the question wherher the rnandatories
ivere tinder an obligation of awuntabjlity ivhich couid have obliçed thein tn
siibmir to supervision by other international organs than the ~pecifrcI.eague
rirgans mentioned in Article 72 of the Covcnant and the Mandare Declaration.
Judge Jcssup did not i n d c d Iind ihat such an obligation cxistcd-tris content ion
that South Africa was not much conoerned wi th tlie lirecise nature of thc super-
vision to which i r would becorne subject, was clwrly advanced for a diffcrcnt
purpose, iiamely as a step towards his cwnclusion that :
"If South Africa ngreed to subniit IOthe jurisdic~ion of the Permanent
t much thought to the nature
Court of International Just icc rvithout d c ~ oing
of tliiit jurisdiction. t hat faci would not supply any basis for dcny ing the
right orjiiridical inrerrsr which AppIicanls properly üsxried in this case
Since the naturc of the juridicaI intcrcsts of Lcügtic Mcmbcrs, and the extent
of the Coilrt's powers under Article 7 of the Maiidate Declaiaiion, arc no[ of
direct relevance in the present proceedings. i t wouId serve no purpose to
prcscnt a detaIlcd ~cfutationof Judge Jessup's reasoning. Howcvcr, as aIready
pointed out, sonie of his stateiiients appear to be incunsisteiit with con~cntions
advanwd in this Chapter ,md wiII accordingly be dealt with k l o w .
63. In altempting to rninirniu: the rtlIe5 o f the Council iind of thc Permanent
Mandates Commission as against that of othei organs. institutions and indivi-
dual Mentbers of lhe k a g u e in the contexr of League siipervision. Jridge
kssup attcmpicd to mükc the following points which may bc pcrtinent alsn
to the issues noiv under consideration:
( r r j Judge Jcssup statcd that, for a proper understanding of thc negotiations
at thc Paris Peace Conference, regard should be had to the foliowing
factors,viz., rhat at t hough the Ieadcrs of ihe Principal Allied and Assmiated
Powers iucrc prcparcd to give the Doniinions a spccial stnti~sat the I'eace
Conference, the Dornii~ionsdid not at that stage have aity recogni7.ed
separate international personaiiry ; 1 ha1 in 1 he Iast few days of January 1919
' Vide <:hap. lx, infia.

South Wesl Africu. StrrondPhnse, Jirri~~iicnt,
I.C.J. Rrporrs 1966. p. 389.
' Ibid., 1). 406.
Prt~identWilson Iiad suweedcd in gaining tlie support of Mr. Lloyd
Gcorgc for the principlc of non-anncxation and thc csiübtislitnen~of the
rnandatessystcrn; [hat the orher meriikrs of the '-Big Five "wcrc no longer
in opposition; that the tinai "cnmpromi~"based on the Sniuts resolutinn
which, with onIy somc modifications, became Articic 22 of the Covcriant,
was a damestic niatter concerniny the interna1 arrangements of the British
Empire; aiid that from the iniernationd puirit of view Great I3ritain had not
conditioncd her acccprance of the mandates systcni ur the role of a
mandatory on thc üdopl ion of this rrsolut~on2.
It is respoctftitly subinittcd that r his line of reasoning is untcnabfe.

It rnay be true rhat in the last days OC January 1919 the PrincipaI Powers
other than ihe Uiiited State; ivere no longer in opposition 10 the p r i ~ ~ r i pofh a
mandates systcm, but ther-: is ccrtainly nothing to suggest that lhty tere
prepared to accept any of ~ h eParis Drüfts incorporating President Wilson's
ideas, and morc particularly the provisions relating to tcrmination of mand~tes
and of ultirnate League firiancial rcsponçibility ". It mas also k truc ihat
GI-eiitBrirain had not condit ioned her acccptanct: of t hc maridates sysreni o n
the adoption of thc Smuts i-esooltiliun. What is clear, however, is [ha1 nt least
as fiir as South West Afrita and rlie PaciIic Islands were crincerncd, Grcat
Diitain wris not preparcd tu accept the particülar typc of mandates systern
proposed hy I'residcnt Wilc;on. Tt will Ise rewlled thüt when President Wilson
had shown hirnself disinçfinrd to accept thc Smuts resoIutioli, Mr. Lloyd Gwryc
liad stated that "iht stâtcmznt tu whici~they had just Iistcncd filled him with
&.pair "',
What wiis ultirnatety aaxpted was not üny of the systenis prtiposed by
President Wilson, but the systcni embodied in the Smuts rcsoIu~ion.It isclear
that rhis resolution was adoiited, infer aiin, because of the vehemcnt opposition
of thc Dominiot~sto I'residcnt Wilson's proposals. Wheiher or not Mr.Lloyd
George wouId have been mure amenable to Prcsidcnt Wilson's proposals kad
it no[ been Vnr the opposition of the Dominions, tnight be open ro debare,
but appcars t o be p u r e I ~speculative and in any event cntirtty irrelevant. The
iinportant feürurc is the a ttitudcs açiuall,: adoptcd and thç con~promises
açiually reached ai the Paris Pexe Con fercnce.
l b ) A Furthercontcntion advanced by Judge Jessup was that whcn she acclpted
the Mandate for Soulh N'est Africa. Soiith Africa did not know in detaï1
what kind of supcrvisory system w o ~ ~ be l d cstabtished in respect of man-
dates, inasmuch as tht Smuts rcsolution did iiot include slny provision
for the Perinanent Maiidales Commission, which wtls inserted latcr, and
becarne paragraph 9 of .\rticle 22 uf the Covenant ;'.
Since the features of ntajo; impartancc for the prospect ive rnandurory pnwers
were the composition and ~~robeble attitude of rhe Cciuncil, which was to he
the real zupervisory orgait, Judge Jessup's contention, even iT correct, would
not rnaieriail y affect the forci:of the contentions set out a bove. But it Ïs subiiiitted
Vid(,para, 19. supra.

D~ssentingopinion o f Judge Jessup, Sotri6 JVc~srrffvica, Serond Phusp, Jifdg-
nien!. I.CiJ. Reports iY66, pp. 397-398.
' Vide paras. I I and 15. sirpi-a.
Vide para. 20. srtprri.
' Disseii tiiig opinion ot'Judge J e s ~ pSourli
. I+'csf AJrica. S~rcortdPliase, Judgmcnl.
I.C.J. Rt-pot-IJ1966, p. 349.
the argument advanccd by Judge Jcssup docs not rest upon a sound factual
basis.
It is indeed (rue that thc Smuts resolulion did not contain ü provision for
the Permanent Mandates Con~rnission,but it is highIy probahle that the Dornin-
ions and niher interested States anticipated the inclusion of such a provision
in thc Covcnant at thc timc whcn the Smuts resolution was provisionally
adopted. It will be recalled that oit 75 January 1919, V. H. Miller, the Unired
States le@ advifer in Paris, rewivcd a Rritish "Draft Convcntivn Rcgarding
'.
Mandatci" from Lord Robert Ceci[ This draft made provision for annual
reports by the Mandatory Power and included a provision for rhe crealion or
a Cornm!ssion to assist the Leagiie in its supervisory role and to rcccivc thc
annual rcports -. In this rcgard S. Slonim rernarks:
"Juùge Jessup, in his dissentiny opinion in S. W.A. 1966 Jridgtnetir, p. 399,
in t k e course of reiecting South Africa's argument chat the coiiiprotnise
worC:ed out on January 30, 1919, was the sum total orobIigalion to whiçh
Soiiih Africa had been prepared to subscribe, points out that that com-
proniise had nnr contajned the provision for the Pernianent Mandates
Commission, which was onIy added at a latcr date. II is cvidmt, however,
rhat South A f r i a and the ieniaining Dominions were familiar with this
provision, since ir was part of Cwil's driift, compIctcd on January 24.
Thc provision in fact was re-inçcrred into the inandates article by
Geni:ral Smuts hiiiiself, vhen he presented ttie final version of that arlicle
to the Coninlission of the League of Nations on Februav 8, 1919. Soe
iMiIlcr, U r n f i i ~ ~ofthe
g ""
Covenanl,Vol. 1, at 185;. . .
cc) A fiiriher statemeirt by Judge Jmup was that South Africa had accepted
the Mandate for South West Africa befvrc slI thc dctails of thc mandcitc
instrument {such as the nature of the report which would have to he
sübmitted) were kriown and agreed upon '. In this regard Judgt: Jessup
pointed out that, prior to the cuming into force of the Covenant an 10
January 1920, and the forma1 approvai of the Mandate for South West
Africa on 17 Decemkr 1920, rhe following had occurrtd, v i ~ . ,South
Xfriça had on 30 Jmuary 1919 tacitiy agrccd to accept the Mandatc; thc
formal allocation had k e n made by the CounciI of Four on 7 May 1919,
and the South African Parliünicnt had in Septernbcr 1919 passed Ihe Souih
West Africa Mandate Act (~uliscqucntly exrended hy rewlutinn by h t h
Houxs of Parliamenr), which Act, iirter ~ l kentpowered , the Governor-
0e1tt:raI to do al1 such things "as may bc proper and expedient for giving
etrect in so far as concents the Union io the Treaty or fn otiy Mmtdate
i m r d i r ~pirrsunnre rlze Treat.i+with refererrce ru die rerri~vr)]uf S ~ u i h
Wesi Africu; . . . 5"
I t is. of course, truc that after the Smuts reçcilution had k e n provisionally
adopted South Africa was prepared ro ü m p t a Mandate for South West Afiica,
but obviriusly a Mandate which wouId confomi to the provisions OF the Smuts
resolut ioii. No ùoubr everybody confidentfyexpected that the mandate instru-
p-
i Vide :>ara. 14, supra.

* MiIIe-, op. cif., Vol. 1, pp. 106-IO?.
Sloniin, Ccln<rdiun Yeueurbook ofini~i-irarionaiLnw. Vol. VI, p. 126, îootnote 36.
' Dissenting opinion <if Judgc Jessup, S ~ i i i hWrsr Afrira, ScrondPhasc, Jud~inenz,
I.C.J. K~ports1966, pi>. 399400.
111ilicj addcd by Judge Jessup; ibirl., p. 393.
WKI'ITLIi SThTtMEXT OF SOUTH AFKICA 573
mcnts wcitild not contain :lny provisions placing a greater burden on the
rnandatorics than Ihat envisaged by the Smuts rcsoIriiion, although il w a f
obvious tliat certain dctails s, iII hild to be sellled.
Tt will bc observed thar Sudge Jessup italicised that portion of ihe pream bIe
of the South Wcst Aîricü Mandate Act which containcd the words "any
Mandate", It seems as if Jiidge Jessup inlended tn suggesr that South Africü
wtis prepawd 10 accept o- niandate wliich rnight have been issued in pursuance
of the Treaty of VcrsailIes. It is ubuious, however, that the rvord "any" was
uscd in its ordinary sense ni legislaiion af an empvwerjng nature in order to
confer upon the Goverrior-GcncraI (i.e,, the executive branch of ihc Govern-
men[) a wide discretion. Pa infer from this thar the South Aïifan Govemmcnt
was instructed by ParIiantent to accept any mandate. irresy>ective of i t s terms,
is, uritlirespect, a cornplele m?n seqcluitur.
The iniportant point is that when South Africa acceptcd the Mandate, i.e.,
when it bccarnc IegaIly boiind ', i t had full knowkdge of the terms of the
Covenant and the mandate instrument, and \vas consequentIy aware of tire
detaiIs of the 1-mgue's supervisory powcrs. These pnwers did not differ in
essence from thc puwers to tc çonferred upon the Lciigut in terrnç of the Smuts
resolution, on which tacit agreement had been reachedearly in 1919. What is even
niore important is that South Africa knew that the Coiincil of the Lmgue had
to act iinanirnously and lhat as regards any question rdirting to the Mandate
South Africa w w l d heentitlr:d toexercise a vute ?.
(4 .ludge kssup also stiite<lthat the wrnposi tion of thc Pcrmanenf Mandates
Conimission, the act iial prncedures to bt: folIoived by the Commission and
the dcvclopmeni of ihc organs of the League of Nations wcre not known
when the Mandatc was cmcinferred upon South Africa 3 .
It is su bniitted that the extent to which thcsc aspects were unknown when the
mandates wert: assumed, w;is not such a to affect the issucu under consiclcra-
tion. In any cvcnt, parayraph 9 of ArticIe 22 of the Covcnant provided that a
Permanent Commission w<luld he constitutcd to rweivc and examine the
annuüI reports of Ihe rnandatories and to advise the Council on ail nuttcrs
relating to the obscrvilncc of-theniandafes.It was known rhat this Commission
wouId consist of experts and it was alsa clcar thai i l wouId have no power to
take any binding dcçision in regard to the administraiiun of thc ~nandated
territory hy a mandatory '. Ir i s consequently not cIear hou7 any m l e ~ a n ~ e
can bc atfaçhed to the fact thaf the compnsition of rhe Permanent Mandiites
Cominission had not btvn wttled and thr i t s actual procedures wcre unkiiown
when South Africa ampied the Mandate. Every mandatory at least kncw that
the proccdurcs lu br: adoptsd by the Permanent Mandates Comniission had
ta crirnply with paragraph 9 of Article 22 of the Covenant and wiih the provi-
sions of the mandate jnstruments.
As rcgsrds thc Jcvclopm~ntof the organs of the Lcaguc of Nations, J u d g ~
Jessup pointe4 out that, aci:ording to Article 4 of the Covenant, lhe Council
would have heen compnsed of the five Principal and Associated Puwers and
Vjdp paras. 40-41, sr~pra.

Vide para. 32: sirpru.
Dissenting op~nionofJudgr Jessup, Sorirti West Ajricu, SccunJ Pfiast,Jiidgnienr,
J.C.I. R c ~ o IY66,
~ ~ s pp. 401-<03.
'Ihc Constitution or the Permanent Mandares Comniission was approvcd by
thc Council of the 1.cague beforc any maodarr declaration wirç made by the &un-
cil. Vide Hall, op. rit., p. 139.
four n o n - ~ r r n a n e n tMetnhers selected hy the Asscmbly. m d that, since the
Uniled Staies did net. participirtc in thc Lcügue. rhe 1-arze Powers did no1 have
a majorit!~evcn at the oritwt. As aiready notcd. howcvcr, cvcry docision of the
Council ]-.ad to he unaninious. Apart froni the füct that a mandatory would
also ix eiiiitled to vote on a Council rcsoIution i f i t s intecesis ive1.e specially
affectcd. cvery n~andatoryknew iit advance that no binding 'dccision would bc
taken by 7he Council in the face of the opposi lion of only one of the Principal
Allied and Assoçiatcd Powcrs . '
(4. From ir~hathas been stated above, it is clear that during the existence
or ihe League a rnandatory could not have been conipelIed to s~~brnit to thc
supcrvisic*n of another international organizxtion, and that the mandatories
did not, kiy accepting the maridates, subrnit to "internaricinal su-pervision" in
the abstr~.ct.Ir is cor~scqiientlycontendcd that South Africa conscntcd to no
othcr sup=rvisinn than that exercised by the specific OrgdnS of tlie League of
Nations iiieiitiuried in the ~nandtttedocuments, whcjch sup-c.rvision fell away on
the dissoltition of thc League.
G . The Pusxibility of Revocation of the Mandate
65. A numbcr of wrircrs and commentarors un the mandatcs systcm have

posed thc question whether tlie I ~ a g u ehad the Iegal power to "revake" or
"terminale" a mandale. At the outset it is necessary to obtain clarity as to thc
phraxulugy to be employed. In order to obviate misunderstandiitg, the word
"revocation" will be used in thc sucmcding paragraphs to conrlote the taking
away o f i i mandate from a pal-ticuIar mandatory rcsulting in thc mandatory
bcing dcprivcd of i t s t.ight (and freed from iis obligation..) under the mandate,
but the status of the rriandaitui tcrritory rentaining unaltered. The word
"terminarion" will be used to indimte the proccss wwhcrcby a mandstc is coni-
plctcly broughi to an end because it has served its purpose, iit other wwrds,
because tlîe inhabitants uf thc particular territory have develuped to such an
extent that the need foi. administration by a mandatary power has faIIen away.
The League's riçhts (il any) of "tcrminatio~"in ihis sense are no1 or any
relevance in thc prcxnt proceedings for the rrasons notcd in an carlier chapter
herwf, viz., that the CieneraI AsçernbIy of the United Nations did not in
resolution 2145 (XXI) purport to terminate the Mandate but tu r~vokcit
pursuant to powers clairned t o vest in rhe Geiieml Assembly as successoi. to
the Counçil of the 1-eaye 2.
fifi. The present scçrion wiIJ accordiiigly bc Iimitcd to a discussion of thc
question whether the lxague was legally cntitled to revoke mandates, and,
I t is not clcar ivliat wits lneanr by ihc raihet cryptic stacenient in a footnote ar
p. 403 nf Judge Jcssup's opinion. vil., -'The unanimity rulc was not always control-
ling". Tf ha: was intending to refer io itie litriilrd class of tnattcrs in rcspoct of which
the Corenan t spccifically did not require unanimity, his statcmcnt was corrcct but
hardly relevant, sinw supervision o l mandates wüs ntit inçludrd ihçrçin.
Yidc C:haiap. VI, para. 5 , supra.
iVRITTI'N STATELlEh-T OF SOUTH AFRICA 575
i l su, on what grounds. It bus never k e n suggested ' thar the 1-eague had t h e
far-reaching powcr of revc.king a mandate ai wilI. l t \vould be cvmplctcly
unrealistic to contend lhat the 1-eague wa.. cmpowered t o revoke a mandate
othenvise thaa by rtason oi'scriouv vicilalions by the mandatory of its obliga-
tions under the mandate. It vHasindeed on this ground thai ihe Gcncral Assem-
bly souyht to base rcsolution 2145 (XXI) 2. Ihe question whether eiren tliis
relatively lirnited power of revowtion vcstcd in the League, forrns the subject-
mat ter or the next succccding paragraphs.
67. On analysis, it appezrs that a power of revucatiun on the pari of rhc
Lcague couId have k e n derived onIy from thc cxpi-ess terms o f thc mandate
instruments, sead with ArticIc 27 of the Covenant; or an implied term. or some
principle of international I i i ~?'liese
. possibilities wilI be dcalt with in somc
detail below, and it will bf: shown rhat although this Court ha5 never dealt
specikülly with the qüest ior*.m d c r consideration, the weight ofjudicial opiriion
expressed in proceedings ri:Iating to South West Africa supports thc South
Afrjcan Govtrnment's contt:ntion t hat the League w% not legal ly emporh~ered
to revoke a mandate.
68. II wilI be converGent to deai first with the pmxiblc appIication of svme
rulc of internatiurial Iaw i)peraling independcntly of the intentions of the
parties. It is clcar that legal ruIcs in intcrnalional law operate k t w e e n subjecrç
of international Iaw only wlien, and to the extent that, t h c partics so dtsirr:; in
thc scnsc thal it is open to tlie parties to exclude such operation by agreement 3.
If the iule i i i questi011 p r e ç r i k s thc incidents, sffects or consequences of a
transaction as between thc pilrtics thereto, this geneial principIe appliaq oforriori:
the parties are entitled io create whatcvcr rckarionship thcy wish and mny by
agreement, express or impjied, exclude any mlc of intemtional latv whiçh
wouId otherwise have adde,j tu t h e incidents, e f f e t s or consequences of their
transactions, It is noi nccessary to consider to what cxtcnt, if at all, this gcnera1
principle iu qualitid by the existence of peremptory rules of laiv ( j ~ 7rogeris)
whiclr \vouId appIy even if ciintrary to thc wilI of the parties, sine in the instant
case [here clearly exists nc. such peseinptory ruIe of law which could havc
introduccd a righi ofrevocafion in10 the mandates even against the wil l of the
aut hors thereof.
Save hy certain Gtrman wriicrs. PBII\ Fiiuçhille, Tfairk de Druif Inl~rna/ioaai

Pubfic, Tome 1, 2' Partic (I925),p. 546. pciints otit r hst the reason rx8hysuch writcrs
mainiained ihat the Lcagirc h:id sovçreignty over rhc mandated tcrritcirics. and why
th- readily aczçprçd a right of rçvtxaiion oii tlrc pdrt of the Lcaguc, was that they
hoped t har when Germany &.urne a Mernbcr of t he 1 .caguc shc uwuld b t n o m i n a i d
as Mandatory for al1 or part of lier former colonies. I n t his regard il should br poinl-
cd out thai in a Notc address-:d by the Gerrnan Government lo the League il1 1924
regarding the question of ticrman aci'cssion to the Lcague, the Foilaiuing was stated
{freely translüied): '-Gcrman>, who has since thc Iast war been cxclirdcd from every
crjlonial activiiy, waits to taki: part actively at an appropriate time in the mandates
svsteni of the League oi Natici,~~." Yiik Wchhurg, H., Die I / i j l k ~ r b r ~( 1t 927).
i
.VD.
. 117-118.
Vide Chap. VI, para, 2. sapro.
Vide Nnrflt Sea Co~~oririnettiai
SiteIf. -
" , Jiitkriierif. LCJ.Rraorrs 1969. . .W . 42: "With-
Oui airemptjng t o enter inio, :till less pronounce iipori any qucstion of jtts c n g ~ i i sii,
is well underatood that, in prtçt~çe,rules of iniemaiit>nal iaw can. by agreement, be
derogated f'rom in particular #:abes, or as bctween particular parties. ." .
WRITTES ST.4TE.MENT OF SOUTH AFRIGI 577
contained any provision autf,orising thc Lcague i o revoke a mandate. Article 7
of the Mandate Declaration Ior South West Africa (and similar articIes a p w r -
ing in al1 the other Maildatc Dcchrations) provided that thc tcrms of the
mandate couId only be amended with the consent of the Council of the Ixague.
This provision was, nu doullt, inwrled Io make ir abundantly ckar rhat the
mandatory did no: have the right IO amend the mandate unilatera1Iy. Tt did
not, however, confer on the C3iinciI the right to modify thc tcmsof the mandate.
As stated by Judge Tanaka :
"The prohibition of unilateral modification cxists not unIy in rcgard
to the mandatory but in regard to thc Lcague of Nations nlso '."
IV. Re~ocaiionby Yirtrre ut-an ftnpjicd Terni

73. The circumstances untier which a term may l x implied in the murse of
the intcrpretation of an internatiunal treaty or sgrccmcnt have bwri dealt with
in Chapter 11 2. lt has k e n pointeci out that courts in al[ IegaI sysrems guard
t h e m I v e s against asseniing to a proposed implication on any but rtie most
cogent grounds, realising that implication on a hasis of spcculütion, or on what
the parties ought reasonably ro have done, wou Id amount to the making of a
ncw bargain ur compact fur the pariies. Conscqucntly, it is required rhat an
implication of tacit c o t t s e i t . ~must arisc nccessarily or inevitably from thc
relevant facts.
74. It is ihzreforc naxssiiry to have regard to thc circumstances surrounding
and preceding the confermerit of the mandates in order ta determinc whcthcr
a clear tacit intent tu provide a right of cevocation on the pari of the League
can be deduced. Ai the autset it mus! bc notcd tliat had such an intent existed,
i f would have been sirange rio[ ta have incorparateci it in the mandate instru-
mcnrs. A tcrm providing for revucation of a mandatc wouId have beeri a
potenrially far-reaching provision with a number of implications affccting the
population of thc tcrritory conccmcd, ihe Leaguc and irs members, rhe man-
datory and any iiew rnaitdatory ro which the territoiy might he entrustcd. Had
a possi hle revomtioti of manilates been crinternplated,one would liave expected
expIicit agrccmcnt conccrnini:, it~îeraliu, the grounds which wouId have justified
revocation. the marrner in wliich i t would have to be effecred,the rne~hodsby
which the furure administration of the territory conccrncd wciuld have to be
dcfcrmincd (including the appointmcnt of a new rnandarory), and the adjust-
nients of the rights of tlie vai-ious iiiterested parries.
75. The failure to make express provisions for rcvocatioii attains increased
impcirtancc whm regard is Iiad to thc codiçting points of view which were
uItimately resolved in the coinproniise reIating to the mandates system. It wilI
be recaIIed that at the end of the First World War certain of the sirccessfui
Powcrs claimed the annexation of somc of the former cnemy, terrilories, and
that agreements in this regard had been rmched during the war 3. Amongsi
the States with such claims *erc South ATricii, Australia and New Zmland.
On the other hand, rhere wap. a strong current of feeiing in fa~ourof internarion-
ai administration of eneniy ~Ionies,wliich point of view mas pressed partic-
uIarly strongly by President Wilson < The crux of the dispute between the two
.COztfk IVPSI Africu. Srrond P ~ L Z Jjud~t~ent,

P, 1.C.f. Heporfs 1966, p. 323.
.
Vide Chap. I I , paras. i O-1: StlprQ.
Vide para. 7, siipru.
+ Vide para. 8 , supra.
from which iii can be ccineludcd that it \vas the unexpressed intention of the
States coiictmcd that the h g u e would have the power to rcvake mandates
and substiture mandatories, the m o r d shows coiiclusively that the idcas of
revwaticin and substif uiion were delikrately no1 incorporated in the Sniuts
resolution and in Article 22 or the Ccwcnant, and therefore also no1 in the
mandate instruments. There is consequentIy iio room for ihe iniplicütion of a
tem which would have empowered the ieague to revoke a mandate or to
subst itute a niandatory.
113. This concliision is fortified by the consideration thai, had j t k e n the
intcntion that a mandate should be revocable by the kaguc. it is iiiconceivable
that the hunders of the Lcaguc woutd have made it impossible for this
cnmpetenze to bc excrciscd in practice. Keference has atreiidy bccn made to
t hc provisions of the Covenant whereby any dwision of the CounciI periaining
to a particular mandate required thc agrccrnent of,irtier niios, the representative
of the mandatory Srate. aird it followx that a decision Io rcvokc a mandare
could not have b e n taken had the mandatory opposed such a course '.
This feaiure was ernphasizcd in the Judgments and opinions both in 1962
and 1966. In 1962, in support of its findings ihaf the judicial protection of the
slrcrcd trust wa%an essential fearure of the mandates systeni, the Court siated
that the r n i m ~ id'être of this essential provision in the mandatcs was obvious,
since, by reason of tlre unanimity nile mentioncd above, suwrvision by the
'.
Lcague ccluld in the Iast resort ncit have been effective The Council's ultirnütc
lack of effectivcncsswouid of course alw have rende& ii impossible for the
Couneil tri revoke a mandate against the wishcs of thc mandatory. The Iogical
concIusion to be drawn from this situatioii is thal i l was not thc intcntion of
the authors of the Covenant that the Corincil of the League would be entitfed
to impose its wili on thc mandatories, whether in order ta revvke a mandate
or for any other purpose. This was exprwly so hcId by thc Court in 1966, in
the fol Iowing wnrds :
"The plain fact is thaf, in rcliition to thc 'conduc!' provisions of the
mandates, it was ncvcr the intention that the Council should tic ablc to
impo:iti its vicws on the various mandalories-the systcrn adoptcd was one
which deliberately rendered this impossible. . .
As f ~ 6 ~ ~ ~r dh spossibiliry
e that a ntanda!ury rnighi be uctitrg cojtfrary tiol
only to rlze vferus of rfie resi of ilzr Cuuncii btii ru the rnaridatc ifse& the risk
of ~lriswas evideri~lyiakutz witlropen eycs. and thiit the risk waf rernnte, the
cvent provd '." (1 talics addcd.)
84, This feaiurc \vas also srressed by Judge Sir Louis Mbanefo. In his
dissenling opinion he posed the qucstion how, assurning the League still to
havc been in exisrence in 1966, a disputc htweeit Soutli Africa and a majoriiy
of Members of thc Lcague as ro whether the South African policies rvere in
: The difference of opinion oii tIiis point hetween Judges ~ l a e ~ t aand t i 1.autcr-
pacht in the 1955 Opinion (vide V o t i t r ~Prcicrrlurc un @ue.stions rebrtiiig in Reports
und Perilioiis concrrniitg ihp Terrilory uf Sotltlr West Africu, Advisury Opinivn, I.C. J .
Reparrs 1955, pp. 85-86 and 99-1 00) was rcsolved by the Court and individual Judges
in 1962 ancl 1Y66 {ride South West .4frica, Preliminorjr Obj~,~tions, Judgtr~rni,I.C.J.
Regnrt.~1962, pp. 3 36-33? and 354 ; Sourh Wesi Africo. Secotrti Pl~nsc.Jitdgtrirrir,
I.C.J. Repori.7 1966, pp. 44 and 218-219). The stattmeni in the text can accordinglç
now bc regarded as scttlcd law.
So~rtlf West Afiicn. freliniinauy Objeciion.~,Judgnr~nf,I.C..I. Repnnp f F a ,
pp. 33G337.
Vide South We.ri Afiicu. Second Phase, J~rrlgm~ni, I.C.J. Repurrs 1966, p. 36.
breach of the mandate provisions, could be resolvcd. He gsvc thc following
answer :
"-Ihc Judgmcnt says tliat the Mandate provides no rernedy for such a
situation and lhat it was a risk the 1-eague mcnikrs took with tlieir eyes
widc open. It seems to rnc thüt i t \vas tu rrieet such a situation fhüt Article 7
(2) was introduced '."
Judge Sir Louis Mbaneio was accordingIy also of the opinion that the
frarners of the mandates systcm took the iisk of a brcach of the mandate with
thtir eyes widc open in ihe sense that the League as such (as distinct from its
Mcmbers acting in tcrms of Arr. 7, para. 2) wauId have been pawerIess had a
inandatory acted in breach af its obligalions, atid, consequentIy, wouId not
have Iiad the compcicnce to revoke the mandate '.
85. As fur as "C" Manditcs were concerned, there is an additional reason
for concluding t ha{ the Council did not have the power to revoke the mandates
falling in that category. It will be recalIed that during the discussion of the
Council of Tcn stress was repeatcdly laid on the contiguity of the Pacific IsIands
to Australia and New ZeaIiind, and especially of South West Africa to South
Africa j. Even before the CounciI met in Paris. Mr. LIoyd George pointed oui
IO President Wilson thai it ivould Iiave been quite irupossiblc to xparatc Svuth
Wcst Africa fiom Soutl'i AFriça, because the former was essentially a part of
South Africa 4.
When opening thc discu:;s~onrelating to Cdonial territorics üt thc Peace
Confcrcn~u:on 24 January 1919 Mr. Lloyd George pointed out that South
West Africa was contiguou:; to thc tcrritorirs of Soiith Africa. H e wenenr on to
say that there was no rcd ratura[ bundary and iinless the Dutch and British
populaiion of Soutlt Africa undcrtook the colonization of this area it wouId
seiiinin a wildcrness
At the third Mecring un 28 January 1918 Mr. Lloyd Gcorgc again stressed
the coniiguity of tlie Pacific Islands and South West Africa to the terrirorics of
ihe 1)ominions which laid daim to thcve coIonies. This contiguity, acc-ording to
Mr. Lloyd Cieorgc, suggesti:d that the Territorics in qucstion "sliouM furni un
(Italics addcd.)
integralpart uf /ho.re couritrics @'.
86. Speaking at the fifth ineeting of Ihe Council of Ten, MF. Lloyd George,
rvith refeet'ence to the S m i s resofution, said that thrcc: cIasses of mandates
would hiivt to be recognitcd; the thirdcategory bcing describcd as:
"Mandates applicabie to countries which formcd ülrnosi a part of the
organialion of an adj3ining power, who worrid hclve to hc oppoint~drke
'. " (lia1ics added.)
tnrt~rdntor,~
It was ohvious from the tormulation of ihe Smuts resoiution and frvin what
Mr. Lloyd George ltad said that the l'acific IsIünds and South Wcst Africa
Ibid., p. 505.
Vrt the dissenring opiniurts of Judges Wellingtiin Koo and Koretsky ihcre are
also io be round passaycs rihich are for the same reasons t o a grsiter o r Iesser
Jcyrcc inçansisrent with thc nation of a power of revacation vcstinç in Che Criuncil.
Vicie their dissenting opin~on:.rit pp. 218-219 and 245.
Vide paras. 13 el seq., q 7 r a .
Vidc para. 10, sriprrr.
Vide para. 1 3, siiprt~.
V i d e para. 16, supra.
Vide para. 20. supro.
would bc tcrritories to which the third category of mandates would apply and
that South Africa, New 7 ~ a l a n dand Ausrriiliü would havc to bc üppointed
rnmdatorics.
As alrcady pointed out, the Smuts remlution was provisionaliy adoptcd and
it \vas tacitly a g r d that ihc "C" Mandates would bc adoiiniste~edby the saÏd
'.
three coiintries At a Ialer stage the thrce Dominions were in f z t noniinated
as mandatorics of the territiiries subject to "C:" Mandates '.
$7. Th: conception ttiat the Durniriions had tu bc appointcd mündatories
in respwi of thoae territories appears also from the wording of paragaph 6 of
Arriclc 22 of the Covenant which, dmost tvord for w o d , rollowd paragraph 8
of the Smuts resolution, aiid read as follows:
" 1 here are territories, such as South-West Africa and certain of ihe
Sou!\ Pacific BIands. whicfi, owing tu the sparscncss of thcir population.
or thcir small s i x , or their rcmoteness frorn the centres of civilisation, or
their geagraphical contiguity to the rerritary OC the mandatory, and othcr
circumsiances, can bc best administcrcd undcr thc laws of thc niandatory
as inicgral portions of i ts territory, subject to the safeguards a b v c lnenlion-
ed in the ititerests of 1 he indignous population ?."
It wilI bc obxn,cd that spccific reference was made to t h e "geographical
contiguit!l" of the territories conerncd ICI the mundalory Statcs and that this
was one of the reasons for staring rhar ihe tcrritories "cm be bcst administered
undcr th#: laws of the mandatory State as integral portions of iis terrilory". In
view of t l ~ i sforniuIation it is inconwivtiblc that ihc frarncrs of thc Covenant
coiild havc intcndcd rhat the mandatories in respect of the Pacific Islands and
South West ARica could ever. have b e n any orher State than the thrce Do-
ininions r:oncerned. At rhat stttgc thcrc \vas. for instance. no Statc other than
South Ai'rim which was contiguous to South West Africa and certainly no
othcr State which could hest have adrninisrercd Sourh West Africri under ils
laws as ail inregrd1 poriivn of its tcrritory, This is indccd stiIl thc position. Tt
woiild conseq~ientlybe idle to suggest that the f~aniersof tlie Covenant aird
thc mandate instrument f o r South Wesl Afrim could ever have intendcd that
the Mantlatz for Souih West Africa could bc rcvokcd by thc Council and
transferreà to anothcr mandatoiy, tn whicli. by raison of its position, situation
and gcrtc:al circumstances, the said paragrapli of the Covenant çotild never
be applicrthle.
88. Thire c m üccurdingly, i t is submi tted, be no doubt that a terni ernpmver-
ing t hc Lliagrte io revnke a mandate cannor be implied, and even i C il is assumtd,
for the purposes of argurrtent, that the Couneil did cnjoy. such a puwcr in
retarion to "A" and "B" Mandates, i t i s abundantly clcar that the Council
could no1 hüvc revoked a "C" Mandate and have appo~nted a siibsrituie
mandatory.
89. Thi: question wheihcr the League had a powcr of revocation hüs been
discusscd by a largc nnurnher of writers and cornnientators but unfortunately
thc vicws of most are based more on swculaiion than or1 legal argurntnt or on
a realistiç appraisaI o f the relevant facts aiid events. These writers and conimen-
tators can he divided in10 three groups; viz.:
(a) thosc: who hold the view that the k a g u e had a power of revocation ';
Yirlr para. 21, supra.
,Miller, op. ci!.. Vol. II, p. 337.
~ i d fIientwicii, N.,The !Munrlrites .y~:rrenr(1930). p. 16; Pahl, R., Dus w l k r r -
seeing rhat this general poIicy was ciirried out, but the I.eague was not
theauthor uf i t l."
94. It is convenient ; ~ tthii; stage also ta refer to starements made tiy Members
of the Perrnanenr Mandates Commission. hi 1924 Lord Lrigard presei~teda
mernoranduni to the Commission in which tic concluded rhat alt hough a
Mandate could he revoketl in the event of grriss violation thereof, such a
revwation rnighl t'or practi:al p u r p o w be rcyarded as inconceivable 5 How-
ever, Mr. van Rccs, in tht: cnsuing discimion stated that the pvssibjlity of
unilateral revocation "did not really exist either in Iaw or in fact 3". '1-oomuch
importance shouId not be attiichcd tu thesc sluterncnts since tfiey did not
profess ra be bascd on a I c ~ a iinalysis
l of tlie mandates systern and its origin,
but were in essence inerely slieculalions directed tn the abstract hypothesis of
revocabiliry of a mandate.
YS. Among the importafit unofficial societies devotcd to rhc promorion of
intcrnaiional CO-uperatioiivas tlie Inter-Parlian~entaryLnion. Ir gave serious
study to tlie inandates systetn as from its 20th scssion in 1922. Duriny i l s 22nd
conference in 1924 the Union adopted s resoIution recoinniending that the
Assernbly of lhc Lcasue be ztiipowcred ro modiry and revoke mandates *. T h ~ s
reconimendation was obviously based on the assuiiiption that no organ uf the
Leagile did have the leçal pcxer to revoke a niandate.
9h. As alrcady pointecl out, neither the Permanenl Court ncir tttis Court has
been called upon to considcr specitîcally whether or not thc Lcaguc cnjoyed 8
power of revocation of a mandate. Neither fias any individual Judgc in sa many
ivords cxp~csscdan opinion ,?s t o rhis qucsrion 5 . As also p o i n t 4 out, however,
there arc dicm in Judgmcnts and opinions which arc inwrnpatible with any
notion that a mandate was revocable al the instance of the Leagiie
97. The above exposition deinonsrrüted ihar neiiher Article 22 of thc mye-
Hall. op. ci?., p. 117.

? PMC, Min. Y, pp. 177-1'73.
Ibill., p. 155.
Yki~ Wright, op. cir., pp. 8 3 - 8 4
In his 1950 disscnting opini<in Judgc Alvarez stated rhat, i f a Mandaiory Sintc
did not pcrfurrn lhe ohligiiiotis flov;ing fruin irs Mandate, the Uniied Nations As-
scmbty wotrlri have the pr>nvei.under Article 10 of the Charter, ro retwkc the M a n -
daic (p. 182). Fcir present purpuses i t is siificienr ti> poinr oitt ihar Jiidgc A l v a r u
did nrit fiiid tiiat tlic Lerigsrc Iiad the piiwer Io revoke a mandate. For thc ambit of
.4rticle IO of the Lhaitcr, rid: Cliap. X, infio. In contrast to Judgc Alvarez, Judge
Bustariiairte in his 1962 scpai arc opinion, hacmingmentioncd that Arliçle 22 of the
Covenant did no1 mention whether the Allied Fowcrs wcrc ru pr=erve icir the ruriire
thc power to appoini mantiaiories where ncccssary, or whether ihat power kvas to
be conferrcd on the League <if Nations through ihç Giunçil, siated tliat "1 xould
perwnaliy opt f ~ rilie lattei presurnption sinçe, in rny view, tho intention oT the
Powcrs was I o renouncc tina!ly any righis 1 0 the {ormer colonies" (p. 3543. Jüdge
Busiamante did not givc an? rcasons for his co~iclusionthat the Council had thc
power to appoint rnand:itoricj, and there js nothing to indicaie that in the passngc
quoted tic had in niind a revocation of a Maiidatc by the Coiincil. fIe could as uveli
havc had in mind the siiuiiiitiri in whidi a .Mandatory Powcr, wilh rhe consent of the
Cuunçil, drçided no longer tc~aci as srich. and khç relevant views exprcsscd by him
çvnsequently d o not constitute any authority for the proposition thar the CounciI
or an? othcr o r m n of the 1 c;igrie \vas enipowered to rcvokc a Miindure.
' Vide paras. 82-83. supra.
nant nor the rnuncliiie insirunienis coniairied any provision, express or irnplied,
empoweriiig the Lcagiie to revokc a mandate and either to assume powcrs of
administr;ition Ïrself, or to appoint anoiher mandatop; and that there is n o
objcctivc Icya t principie, the appliculion uf which could have conferrd such
powers or: the League. It shows that the wcight of scholarfy opinion favouis
the vicw 1hat the Ikague did not enjoy t hese powem. It demonsirates, ftnally,
that dicta in thc rclcvani judgrncnts of thc Courl and in opinions of individual
judges strengtlien this conclu.iion.
II is cmequently siibniiited t h a r it has heen conclusiveIy shown that ihe
k a g u c wiis not Icgülly cntitlcd to rcvokc a rnandatc, ur to assurne administra-
tion of a tiiandated territory or to appoint a new mandatory in the place of a
deposed o x .
IVRITT1:W STATE,MEhT OF SOUTH AFRlCA 589
The supply of intoxicat in:< spirits and beveragcs to the natives shalI be prohib
iied.
Thc rnilitary training of 7he natives, othcrwise than for purposes of interna1
police and the local clefencc of t h tcrrilory, skall be prohibited. Furthermore,
no rnilitary or naval bases shall be established or fortifications crcctcd in the
territury.
Subject to the provisions of any local Iaw for the maintenance of public order
and public morals, thc rn;indatory shaH ensure in the territory frccdorn of
consciencc m-~dthe free extrcisc of al1 forms of worship, and shaIl allow aII
missionaries, nationals of any State Member of the League of Nations, to enter
into, travel and reside in the territory for the purpose o f prosecuting thcir
dling.
The mandatory sha1I make to the Council of the League of Nations an anniial
reporr to the satisfaction of thc Council, conraining full information with rcgard
IO the territory, and indicai ing the meafures taken to cirrry out the obligations
assurned under Articles 2, 3, 4 and 5.
The consent of the CounciI of thc Lcagüe of Nations is required for any modi-
fication of thc tcrrns of ihe present Mandate.
The niandatory trgrecs that, if any dispute whatever shoüld arise between the
mandatory and another Mt:mkr of the League of Nations relating to the intcr-
pretation or the apptication of the provisions o f the Mandatc, such dispute, if it
cannot bc settI& by iiegoti.~tion,shall be ~ubmittedlo the Permanent Court of
International Justice provirled for by Article 14 of the Covenant of the League
of Nations.
Thc present Declaration shaII be deposjtsd in the archives of the kdgiie of
Nations. Ccrtifitul copies shall k fonvarded by the Secretary-GeneraI of thc
League o f Nations tu afI Powers Signarories of ihe Trcaty of Peace with
Gcrman y.
.4. Inf roductory
1. ln Chapter VIT abrive it was dernonstrated thai no express or irnplied terin

iiithe M a d a t e . tiot any IegaI rulc iippcriaining thereto, could have resulteù irt
a transkr cifsiipcrvisory funciions to the IJiiited Natioiis wiiliout a frcsh agcc-
nient amoiigst aIl interested parties, induding in particular South Afriw as
rnandatory. T h t prcsçnt Chaptcr will be devoted to a consideration of the qiies-
tion uUheth~?r such an apreei~ientwas ever concluded. From a prücticüI point of
view rhis iiivolves a n exaniination of cvcnts during the yeiirs when the United
Nations wlis cstablishcd and ihe League o f Nations dissolued, i.t., 1945-1946.
and short[>.thereafter. It was on evenis duriny this pcriod that thc Court in 1950
placed reIi.ince for itç conclusion [kat a succession of supervisory organs had
occurred. 2nd as für as is known, it has never k e n suggested that any relevani
agreement (oiher tlian tl~oseinvolved in thc crcirtiun of thc Vündütc itsclf) was
cnncluded at any othei titne. Thc prewnt Chapter wiII contain a survey of the
material events during thc said pcriod, which will Imd up to a considemtiori of
the legal irriplications Rowing therefrom, and i n pariicular rci ihccunclusion that
no agreement was reached providing for transfer of supervisory powers in
respect or iaandaics from thc CnunciI of the League of Nations to any orgiin of
the Unitcd Nations.
B. EstübIishment of the i e ~ i i i t dYaiians
2. The rstahIishmenr of the Uni tcd Nations Organi=tioil resul ted Iargely
froiti inter-Allied co-operation during the Second WorId War. The nanie
"Uriited hlritions" I~adbeen adopled by thc AIlics in the latcr stages of the \var
and used i r decIar;itions, such as that of 1 January 1942. a t Washinptoii, j~ledg-
iriy war-tinic co-opcriition. 'lhe prospect of establishing a new international
orgaiii~9ticnfor the prewi-vaiion of intcmational pcacc was mcntioncd in a
declararion signed on 30 Octoher 1943, at Moscow, by the representatives of
four of the major Allied Powers. vif., the Cnion of Soviet SociaIist Republics,
the United Siaiesol Amcrica. thc United Kingdrim andChina.'l'hefirst blueprint
af the orgiinizaiion was prepared duriiig discussioiis in the period Augusi to
Octohr 1944 at Dumharton Oaks. Wasliington, in which lhe said four Powers
participated. Followiiig on thcsc discussions thei-e was published thc proposa[,
inwr aiiu, that the key body in the contemplated oryani~ationwas to be a
Security Couiicil on which the "Rig Five" Powers (beiny the above four and
France) wei-e to be prtniunen[:ntIy rcprcscntcd. During the Yalta Confcrcncc of
Fehruary 1945, between President ttrioseveli of the United States of Ainerica,
Primc hlinistcr Churchill of the Cnired Kingdoin and Premier Siatin of the
Sovier. Uniriii, came an announccmcnt that the question of voting procedurc in
such a Security Council had k e n seiettled and tliat "a confereiice of Ijnited
Nations" sl~ouldbc called to meet a t San Francisco to prepare a charter Yor "a
general intcrnntianaL otganiration i o maintain pcacc and sccurity . . , along thc
lines proposed in the informal conversations of Dunibarton Oaks".
A confcrcncc of delegales of 50 nations was held a[ San Francisco belvieen
75 ApriI aiid 25 June 1945, üt which thc Charter of the United h'at~ons\vas
drafted, u n a n i k o u s ~agreed
~ iipon and siyned by al1 thc rcpr~scntati\~cs.
It csmc
inio rorce on 24 October 1 945, when, as requircd by Article 1 10 tltereof, the five
I'owers thüt rvcrc to bc t'crrnancnt Mernbers of the Seçurity CoiinciI and a
rnajority of the other sign;ttory States had filed their ratifications '.
3. During Ihe aforcçaid events the Ixague nf Nations wiis siiIl in exisietice;
and jz cnntinued tu cxist sidc by side with the new organitation LtntiI ApriI
1946.
T k r c was nu siiggestiot tlut the United Nations was tu bt iettw Leagie un&r
a new name, or an autoniatic successur in law io Leaguc assets, obligations,
funcrions or activities. Indeed, two ofthe major Powers which played ü Ieading
roic in the establishn~entof the United Nations, and were to be Permanent
Memhers of thc Sccurity Council. were known to bc strongly averse io any
notion of autoinatic succession. They were the Soviet [,nion, which had k e n
expcllcd from the League in W e m b e r 1939,and the Uniied States of Arneiica,
which had never been a ivicnibcr of thc Lcague.
In ter.iiis o f ArticIe 3 of the Charter, the original Meinbers of thc United
Kations were the States which. having participated in the San Francisco Confer-
ence or having signcd thc .ûcclarationby lht: United Nations of I January 1942,
alsv signed Ihe Charter aiid ratified i t in accordance with L\rticIe 110. Thcre
were 51 such original Menibers of ihe United Nations, of wliich 17 were not ai
ihat rime (1945- 1946) Members of thc Lcaguc. They were: Byeloriissian Soviet
SociaIisr Republic,Chile, (:osta Rica, EISalvador.Guatemala, Haiii. Honduras,
Lebanon, Nicaragua, Paraguay, Peru, Philippines, Saudi Arabia, Ukrainian
Soviet SociaIist Kepuhlic, Union of Soviet Sociülist Republics, United States of
Amcriça and Vcnczuelü. Of those 7. I6 liad never been Mernbers ofthe Leaguc.
They wei-e: Byetorussian Soviet SoçiaIist RepuhIic, Lcbanon, Philippines,
Satidi Arabia, Ukrainian Soviet Socialist Kepublic and &lieUnited Stares OT
Anicrica. AI[ thc others (except the Soviet Cnion) had inany years beforc
withdrawn froin the Leagile on noricc 2.
Ftirther, or the 42 Members of the League of Natioiis at that tirnc, 11 were
not origind Mcmbcrs oft hc Unii~ulNations. They were :Afghanisian, Bulgaria,
Estonia, Finland, Irelan~i, Latvia, Lithuania. I'ortitgaI, Siarii (TIiailand),
Sweden and Swit7.erland. 1-our of these, viz., Switzzrlrtnd, Lithuania, Lalvia and
Esionia, ncvcr k c a m e M.:nikrs of tlie United Nations. The athers wcrc ad-
niitted to n~erntiershipat iarious times, in sonle crises ycars afier the estahlish-
ment of the United Narions ".
As a resuIt of the adrrii:ision or new Menibers, United Nations rncmbcrship
grew to 993s a i the end or' 1960,to i 10 as at the end of 1962, and to 127 a1 the
present iinie. Although 14 of these neiv Mernbers iiad at some stage or another
bccn Mcrnbcrs of thc Lcci:~uc,iht: oihers had never been.
4. At the San Francisco Conference, during the discussions mticerning the
provisions of rhe Charter ieeIariVeto a propased trusteesliip system 4, the South
Afrimn rcprcscntüt ivc ma rtc thc following siateiiicnr :
"1 wish io point 031 that there are territories already under Mandate
whcrc thc mandatory principlc cannot be acliicved.
F v e r y n i n ~ ' Uriitcvf
~ .?$ni ions f 6t h (id.), pp. 4-5. I'idp alsti Giiodrich. L. M. and
Hainhro, F.., Chur~erq f i h r Clrtifed .Votion.s (2nd ed.), pp. 3-18.
" o r dates vide Walters. F. P., A Ili.siory of thr L p r i p e of Noriorrs (1952). Vol. 1,
pp. 64-65,
' Vide dates in Evryvm(in's Unitrrl Nuiions (6th cd-), p. 6-
+ In Comniittcc II!4 on 1 1 May 1945.
As an iIlustralion, 1would refer to ihe former German territory or South
Wcst Africa heId by South Africa under a 'C' Mandate.
'rile facts with regard tri ihis icrriiory arc sct out in a memorandurn filed
with Ille Sn~etariat,which 1 now read:
When the dispnsal of enemy territov iinder rhe Treaty of Versailles u7as
under considcration, doubt was exprmsed as to the suitabilily of the
mandittory form of adtdininistrat~onfor tlie ierritory which fornierly consii-
tuted the Germm Proteçtorate of South West Africa.
Neverthclcss, on 17 Decernher 1970, by agreement between the Principal
AHicd and Associated Powers and in accordance with Articlc 22 Part T
(Covenant of lhe League of Nations) of the Treaty, a Mandate (commonty
referrcd to as a 'C' Mandate) nias conferred upon the Govemrntnr O € the
Union of Soutlr Africa to adininister the said tcrritory.
Under the Mandate the Union of Sotith Africa was grinted full power of
adi~iinis~ration rrnd legisIafion over the territory as an integral portion ofthe
Union of Sout h Africa, with authority to iipply thc Iaws of thc Union t o it.
For 25 years, the Union of Sotrth Africa has governeci and adniinistered
the tcrritory as an integral Parr of its own territory and has promoted to the
utmost the material and moral wetl-king and thc social progress of the
inhahitants.
Et has iippiicd many of its Iaws to t h e territory and has fairhfiiIIy per-
-
forneci its obligations under ihe Mandüic.
The territory is in a unique position u~henconipared with other territo-
ries undcr the same frirm of Mandate.
It is g o g r a p h i a l I y and strategicaIly a part of ihc Union of South Africa,
and in WorId War No. 1 a rebellion in the Union was foinented from it,
and an attack Iaunched against the Lnion.
It is in large mcasurc ccononiically dcpcndcnt upcin the Union, whrise
i.ailula:,s serve it and from which it draws the great bulk of its supplies.
Its &pendent narive peopIes spring from Ihe same ethnviugical stem as
the great iiiass of ihc native pcoples of the Union.
Two-thirds of the F u r o p a n population are of Union origin aiid are
Union Nationals, and the rernaining one-third are Enemy Nationals.
The teriiiory has its aivn Lcgislative Asseinbly granted to it by thc
Ildon Parliament, and this Assem bIy bas su bmitted a request for incorpo-
ration of the territory as part of rhe Union.
The Iliiion has introduccd a progressive policl; olNritiireAdministration,
incliiding a systein of l o a l government ihrough Nat ive Couiicils giviny the
Ncilivcs a vnice in the management OP thcir o w n afkdirs; and under Union
Administration Kativc Rcscrves have reached a high state of oconontic
deveIopnient.
Zn vjcw of contjguiry and simiIariiy in composition of rhe native peoples
in Soutli West Africa thc native palicy foI1oived in Sauth West Africa musi
always be üIigned with that of tlie Union, three-fiîths of the populatioii of
which is naiive.
Theie is nu prospcct of the territory ever exjsting as a separatc statc, and
ihe uItimate objective of the maiidatory principle is therefore impossible
of açhicvement.
The nelegation of the Union of Sauth Africa fherefoce clairns that the
Mandatc should be terminated and that the terri tory çhould be incorpora-
tcd as part of the Union of South Afnca.
As territoriaI questions are however reserved for handling at thc latcr
I'eace Conference where tlie Union of South Aîrica intends to raise this
WRl-I?'W STATEMEhT OF SOUTH AFRICA 593
maiter, it is here onIy mentioned for the information of the Confcrcnce in
connection with thc Mandates question '."
5. The signifieance of the übove siateriicnt is further acceniuated by an
extract from a Iater statemeni hy FieId-Marsha[ Smuts,which çan ccrnvcnientIy
-aIihough out of histori:ii[ sequence-ha ciled here. Addressing the Fourth
Clomniittcc of the tieneral AssembIy of thc Unitcd Nations at its Fourteenth
Meeting on 4 Novcmlier 1946, Field-Marshal Smuts stüted, inter d i a :
"It was .. .
incurnbent on the Union Govcmrnent as truslee of the inter-
ests of the pcople of South West Africa to ensuie that, when the pruper
timc arrived for consi-lIcrcition of atiy change iin the status of the 'Ièrritory,
such consideration shnuld not be prejudiced by iiny prior comniit nient on
the part of the Union Government by virtue of ils mcmbcrship of any
organization which rrtight rcpIiice the Leagut of Nations; accordingIy, in
May 1945, when quesrions relating to trusteeship wcrc undcr consideration
by the San Francisco CoriTerence, the Union Governinent entered a rewr-
vation designed to en jure that thc future status of South West Africa and
the desirability of ils jncorporation in lhe Enion should noi bc prcjudiçcd
by any proposais adtipted by tht: Conferencc in regard to the future of
rnandated Territories. The text of this reservation is given in Paragraph 1
of Document A/I23. In the event, however. the Charter of the United
h'atium by the use of i:he term 'ntay' instcad of 'shall' in Article 77 excluded
any obligation to piaix mandated Tcrritories under truskmhip and made
the appIication of th: irust.eeship systern to such territories a mattcr of
voluntary agreement. This no doubt accounts for the ract that in addition
to South West Africa. three niher mafidates-Transjordan, Palestine and
the Japanese Pacific Tilands-have so far been exd uded from t hc Trustcc-
ship Systcrn '."
6. Towards the end of the San Francisco Conference, on 25 June 1945, there
was estahlished a Prcparatory Conimission of rhe United Nations. consisting of
The official records of ihe San Francisco Conference contain only a hrief sum-
mary of this statemcnt (UNCI0 docs., Vol. IO,p. 434). The text quoted here is taken
Croin the original typwritteii documcnt from whjch the South African representative
Dr. D. L. Smit, rtad the statement in thc Curnmittcc on Trusteeship on 11 May 1945,
which accords wilh an unolticial ircrbatirn r s o r d in the custody of the Cnited Na-
tions Szcretariai. The origiiial document read b y the Soui11 .4lrican rcprcscntative
contains also the îojlowjng piiragraph which is, hriwever. not reffcctcd in the un-
oficial verbatim rccord:
"As stateù in ihe M,eniorandum, this is not a matter thai çan be decided
hcre, bu1 1 arn directcd to mentirin it for thc ~nformuticinof the Confcrence so
thet South Afriw mny not afterwards bc held t<i have acquiesced in the con-
tinunnce or the Mandate or the inclusior~of the ierritnry in any form of trustec-
ship under the new Int,:rnatiortal Orpoiciition."
Dr. Szriit, who died during 1962. atfirmcd by Ietter to the South AErican Goverti-
nient before hjs tieath, iIiat he mridc thc whvle starement as il appears in the South
African records. Jt was suggested in the riisxriting opinion of Judge Jassup in Sourfi
Wfst Alrira, Second Phuse, .ludgmenz, 1.C.J. Reports 1966, aar p. 340, that Dr. Smir's
rnernory may have k e n îaulty rcgarding this last parayraph. 1t is submittcd that it is
of no importance whethcr <nr not the additional paragraph was r a d sincc it wvuld
not have added anytfiing wiiiçh was not already implied in the rcst or the ~ralement.
This appears to havc becn irccxpted by Judgc J s s u p .
GA, OR,First Sess., Second Part, Fourth Cornm., Part 1, p . 739.
one represeiitative of each signatory Siuie '.The funçtions cntrustcd to it were
to convoke the General Assernbly in its firçt session, to prepare the provisional
agcnda, dricunients and recommendations for the firsl scssions of the prin-
cipal orgatls of the Organization, and 10 do certain other defined preparatory
work pcnding establishinent of the Secretariat '. One of thesc itcms of pre-
paratory wark \vas in:
"Formulate recornmendations concerning the possiblc t ransfcr of cer-
tain f~ nctions, activitizs and assers of the Lcagiie of Nations which it iriaq-
be mnsidcrcd dcs~rübleFor the new Organirarion to take over on tcrnls to
be arr4inged '."
7. Providon was also made for an E x ~ ~ u t i vCom~nittee
e (consisting of
representaiives of 14 Staics) which would exerciw the powers and ftinciions of
the Prepariitory Corninission wIwn it ruas not in session. Thc Exccutive Corn-
mittee, for the purposeof carrying out its functions, set up I O Sub-Cornmirtees.
The ternls of refcrcncc of Comrnittce 4 of t h e Execiirive Coniniittee inçliidcd
the foIIowillg:
"This Comniittee should he concerned with thc ~repawtionof the
Agenda and appropriate docuriienis for t hc first session OF the -1.rusteeship
Coun~il.Ii should make recoinmendations defininq ~ h rulc c of thc Gcncriil
~ of the Security CounçiI in trustoeship matiers and of tlieir
~ k & n h kand
respective relations with thc Trustecship Council. . . .
The Cornmirtee should prepare recominendations for procedures which
might be folIowed for approving trustt~shipagreements, for exa~nining
annual reports, for rc~xivingand examining peririons, for arranging perio-
dic visits to territories and for estabIishing a qucstionnairc as a basis for
ann ual reportS. li shoirfrfsrudy ~ h yuesriuns
e arisirifi if rite Maridatc.5-Sysreiti
were to he wuutzû irp and exa?iiitiethe f èusii>ifii+v
ojflYo ridiny f u r siirh iinrrritn
urru2gemerrts RS ma)' he posb-ibk, petidiiiiig rhe ~srablishvie~~t of fhc Tritsre-
ship Cowril 4." (1 talics added.)
Conimitree 9 of thc Exmutive Cornmittee was entrtisted with the task men-
tioned above 5, vif., to
". . , fi,rmulaic- rocornmcndations concerning the possibte fransfer of cer-
tain fiinctions, activities, and assets of thc Lcaguc of Nations which i t
niay be considered desirable for the United Nations to take over on terms
to be iirri-ingcd6".
TO this w a j added :
"This Conimittce should also kcep in conlacl with the arrangemcnis
being made for windinp up rhc Lcaguc of Nations 6."
This Sub-C'antrnitreerecommcnded, with certain excepiions and qualifi~tions,
the transfer af thc functions, activities and assets of the Leaguc. Arnong the
exceptions wcrc the political fi~nctionsof the Lcaguc ; and thc Sub-Comniittcc
also indirated rhat :
- --
: UNCI<> docs., Vol. V. pp. 300, 315 and Vol. 1, p. 630.
Ifrid., Vol. 5 , pp. 300, 3 16.
-'Ihid., p. 316, item ( c j .
Doc. PC/EXill3/Rev.1, 12 Nav. 1945, p. 133.
Vidr para. 6. sup-a.
DOC. PC/EX/I 13)Kev. 1. p. 1 34.
'IVKI rTI:N STA'l'EYtNT OF SOUTH AFR1I:A 595
"Sincc the qiresiionr arisiny Sram the winding iip of ihc mandates sysiein
are dealt with in Pari III, Chapter IV, no recon>rncndatioiton this subject is
inçluded here '."
8. Thc reference ta Pari I I I , Chapter IV, was Io a recornmcnda~ionby Corri-
niirtee 4, Iatcr ücccpted by I he Execeçutive Committcc, that tl Temporary Triistee-
ship Colrln~itteebe formed '.
'I'he rcasons assigned for this recoininendation wcre lhar in accordance with
Art~cle86 of thc Charter, rhc Trustership CYouncil could nut be fornled iintil a
nurnber of ierritories w r e lirst pIaced under ~rusteeshipand rhar i t was desira bIc
that some intcrim o q a n sIiould be estahlished to assisi the Gcncral Asseinhly
in expediting the constitutioii of the trusteeship system. and, pendirig the
cstablishmeni o f the Trusieeship Couticil. in rakirig sucli other action in con-
nection wjth the trusrteliip systciri as tnight he found necessary 3.
The [uncrions recoinnicnded for the Teniporary '1-rusteeship Committee
ivere the following :
"The Tenlparary Ti.uuleeship Coinmittee woiild, iiiizr rifiu, perform the
follvw inp funclions :
(i) assis1 the United Nations in expediting the conclusion o f tr~isteesliip
agrwrnents by the States directly concerned, and Ihe coming i tito operation
of the trtistccship sysrern provided for in Chaptcrs XII and XII1 of the
Charter;
(ii) assist and advise the GeneraI Assembly in the discharge of aiiy of its
funct ions wit h regard to proposed non-strittcgic ü r ~ ~ including
s, rlie ap-
proval of trustecship egreemcnts;
liii) assist the Security Council in such matters as the Security Counçil
inight wish to rcfcr tc the Tcmporary -I'rustecship Conimittw in relation
to matters mentioncd in Article 83 (3);
{iv) ndvise the C h e r n i Asser,lCdy <in ntiy tnatrrrs fhnr tiiighr ririw ri~ifh
rejiard io the ~rcitisjerto rhc United :Vu$ions of an)?Jùticrioiu. uttd rrspotisi-
-'."
bi/iiie.s i~riilrer/oe.rl.rci.rrd 1tii~IErI ~ PiIfoiirlrrtr.s- Sysreiri (ltalics added.)
In the proposed provisiunal agenda for the Tcmporary Trusteesl~ipCommit-
tee there üppcarcd, itircr rrlia, the foHowing:
"Problerns arising from the transfer of funcrions in respect of eliisting
mandates from thc League of Natiom to rhe Unitcd Nations $."
Y. While the subject of the Temporüry Trus~eesliipCommittee was utider
consideration in the Execuiive Coriiznittee of the Preparaiory Comrnission,
the Unitcd Statcs of Arriei ica fiIed a propou[, datcd 14 October 1945, to thc
efect thnt t Ire pmposed fitnct ions of the Tcmpomry Trusteeship Corninittee,
and subçeqiitntly Ihe Tru>tccship Council. should be extendcd specifically 10
cover thc cüsc tif mandatecl terri tories not brouçht iindcr trusteeship. 'Ihis
proposai sought to coltfer the following furthcr runction on the Tcrnpurav
Trusteeship Cortirnittee:
". . . to undertake, fdlowing the dissaluticin ofthe League of Nations aiid
of the Perrnaneiii Mandatcs Corriirli~sion~ the functions prcvio~islyper-
formcd by thc Münd:ites Comznission in conneciion with receivinç and
thid., Chap. IX, Sec. 3, paras. 1 , 2 and 5, p. 110.

Ihid., C h p . IV, p. 55.
thid., pp. 7-8.
' Iùidl., p. 56.
examining reports subniilted by mandatory Powcrs with respect to siiçh
lerritories undcr mandate as have not k e n placed under the trusteeship
systeni by means of trusteeship agrccmcnts, and unri1 such tinie as the
Trtistc:esbip Council is cstablished, whereupon the <:ciuncil will perform a
similar function '",
Ori 18 Ckrober 1945, Le., four days afier the date of rhe United States prc-
pnsal, the report or Cornmirroe 4 of the Execuiivc Cornmittee crinraining the
enunieralion of !hc suggcstcd functions of the Te~nporaryTrustmhip Corn-
niittee as x.t out in parasritph 8 above, was at;c:pted by ihc Execiitive Conirnittee
without inr;lusion of or rerrrmce to the further addition suggested by rhe United
States of Arnerim 2. It may be inferred that the United States dclcgation
decided itot to proceed with the proposa[ at that stage. As will be noted Iater,
a siniilar proposai was piit forward subxqucntly on behalr of ihe United
Gtütcs of Amcrica.
10. Aftc:r adoption of trie said report by thc Execiitive Cornmittee. the pro-
pmals regarding a Ternporary Trusteesliip Cornmittee were submitted to
Committcc 4 of the Preparatory Conimission itself. The mattcr was dealt with
rtt the Second Meeting of Cornmittoc 4 on 29 November 1945. The Australian
represenrative explained the reasoiis underIying ihe proposal for a Ternporary
Trustccship Commiitee 3. The Soviet rtpreseniative ~hcreuponstated his Ga-
- vernment's objection to the proposal for a ternporary body based upon three
main contentions,viz.: ,
( a ) it worild be uncunstitutional;
( 6 ) i t woiiId have no work to do since nu territories had yct bccn placed under
trusteahip; .
!cj it wor~ld'de1ay:ihe irnplcmcntation nF t he provisions of the Charter rathcr
lhan speed i t up '-
H c was supporied hy the representative of Yugoslavia q .
Thereafter the repraeniativc of South Africa spoke as fol lows:
"He had fo1lowed the agumcnr agaimt ihe mtablishrnent of a tempocary
o r p n most closcly. It xcnied tn hirn that rhey were based on rhe onc hanù
on cunsrirutional grouiids, on the cithcr on expediency. The deIcgate for
the Soviet Union niight he righr, but that was a Icgal question. The Com-
niitter: rriust scck legal judgment on rhis question if doubt cxistcd among
some of the Delegations.
On the question of expdiency, il seerneci rcasonablc to create an interini
body as the rnandatcs Commission was i ~ o win abeyance and countrics
holdiiig mandates should have a body to which rhey couId report j."
11. On 4 December 1 Y45 a proposal was su brnittcd by thc United Srates of
America (nuhich in e k c t rcpcatcd the earljer ~roposalrefered to in paragaph
4, suprrr) reading as follows:
- 2 .
Duc. PC/EX)92]Add. I.
? Dac. PC!EX/107, pp, 9-13,
j ROC. PCjTCr2. pp. 2-3.
' Ibid.,p. 3.
5 lbid.,p. 4.
WKIïTEN STATEMEKT O F SOUTH AFRICA 597
"PROPOSED AMFNDMENT TD I'AItT rn,CHAPTER IV, SEC-
TION 2, I'AKAGRAPH 4, COKCERNIKG FUNCITONS UT; THE
TEMPORARY TRUSTEESI IIP COMMTTTEE.
I. The Report by th: Executive Committcc muka no provision for any
organ of the United kations Io carr): out the funciions of lhe Permanent
Mandates Conimission. Tri Part IiI, Chapter TX,dealing with thc League of
Niions ihere occurs t lie following statcmcnt :
'Since the questions :irising from thc winindjng up of the Mandatessystern
are dcalt wiih in Part TI 1, Chapter IV. no recomniendation on this subjcct is
included ticrc.' (Scctioti 3, paragraph 5, page 110.) No spcciiic reference
to the riinclions of the Permanent Mandatcs Commission is to be round,
however, in Part TIZ, Cliaptcr IV. relaiing to the trustccship systern. Scction
2, paragraph 4 of that Chapter {page 56) rnerely assigns tn the Teiiiporaty
Trustccship Coitirnittee a general advisory funclion in this field: '(iv)
advise the General Ascernbly on uny tnatters tliat mighr arise with rcgard
Io the transfer to the llnjted Nations of any funciions and rcsponsibilities
hithcrto cxercised uiidar the niandates system.'
2. In ar&r !O prouid,: n d~brreenfcoiirinuity htiveeir rire trianahtex irretti
attd rhc früsfecship syjrpirz, lo pertrrir the nïundnrary powefi ro discharge
~Irrirnl>figaiions, nnd fo fi~rrhrr r k ~Iransf~rIJf iwuticinzed fertirori~sfo
rrmteeship, 111r Te'niporary Tit~sreeshipCotnn~ittee !!or sirclr rr n)mi,ritiee
us is fsfabiish~d fi' perf..rrni irs~wci+iutzsjand, later, rhe Trus~ersl~ip Cocmcil
shoiiid he .~pecificaliyernpon.ered ro rccrive the rrporis ivkich rtie tnatldutory
powers are I I ~ Woldig~r.i?d rcl niake io zke P~rrriarienl,Wtzndrzr~,s
Conitrri.ssioii.
'I'hc e ~ i s t i n gobligatio~sand ri&ts uf the parties involvcd iinder thc mari-
dares system with resprct to anq. inandaicd territory continue in force untiI
such territory is plam:d iinder trusteeship by an individual triisteeship
agrcemcnt or until scme othcr inlerriational arrangement is madc. To
bridge ony pn.r.~ihie2 4 7 which miglit exisi bet)i;ern ~ht!ferritinariori of r h ~
inutzrlafes sysfenz utrri ihe esfab~islrm~ni of the ~rusrecshipsys!em, if would
appear appropriof~th,rhe .rripcrvisoryfunciiur».of the Prrmaneji~Ma iidfntes
Comnii.ssion shoitld he cnrried or! reinporarily by rhe orgalr of ihe L'r~ir~d
Ar~fiotis whicff is ru Iwede ~r~sfeeship I>lflifErS.
3. In order, therefoïe, thai thc rcptlrt of ihe Preparatory Commission
may be cornplete in this respect the following ainendment is proposed.
4. At?iciirhnetu
Add a ncw sub-panigaph (v) to paragrnph 4 of Part III, Chapter IV,
Secrion 2, in he wordcd as follows:
+ '(v) undertake. following the dissolution of thc Leagile of Nations and of
t lie Perrnanent Manda?es Commission, tu receirueund exnnti~z~ r ~ p o r t ssa/)-
mi!red 6 y mu~tdu~ory Pg wcrs with re.rpecr ro snch rerrirories under niaiidale
as have Ilor beril pl(i<:r rl tintfer the trusfeeship sjstcm hy inrcrris u/' rnlsfee-
sbip .q.qrceanerirs,anri itt.rif sttch iittie as rhe Trr~steesliipCoimcil is estubfisfred,
wher~rrpo~i ~IicCou?icil will perform o similkir Jinciiot?' '." (Italic~added.)
This proposal was placer1 on the agenda of Corninittee 4 of the Prepiiratory
Conimission for the %inth hlccting heId on 8 necernber 1945 '. At ihat nieet-
ing, the United States rcprcscntative delivcred a lengthy addrcss. Ir is of great
: Doc. I'C[I'C/ t t .
' L ~ o c . PC!TCJ31, pp. 21-:!2.
significaiax ihai hc niade no reference to the above-melit ioned proposal :.
17. In ,:he course of t t i e procucdings of Conimittee 4 of the Preparalory
Commission. va rious proposals weie placed beforc it ris alternatives for the
rgcornnicndation of the Execirtivc Committcc t hat a Teniporary Trusteeship
Cornmitte? he established. Arnonçst these was a proposal that ait ud fiuccorn-
mittee heestablished rather than a 'Rniporary TrustWhip C:rimrnittee. as also tlie
proposa1 ivhich was ult imately adoptcd, viz., that the General Asscrn bly shoiiId
adoiit a rcsolution çiitliny un States ariniinislering territories under Leaguc ol
Nations Mandate t o undertake pract içal stcps For suhmi tt ing t riisiecship agiee-
mcnts in respect of them "pekrably not later than duriny thc Sccond Part of
the First Sessiuii of ihc ycncral Assembly '". The rccornmendation procccdcd:
"Tliose trusteeship matters wliich will be lakcn u p by the General As-
fembly at lhc First Part of its Firsr Session for the purpose of cxpcditing
ihe esrablisli~nentof the trustccship systeni. will be considered by Ihc
Trustzeship Lodirnittce of the Geiieral AsscmbIy, using the niet hods which
~ h Gcncral
e Asremhly considcrs most appropriate fur thc Furt her consi-
deriaiion of these rriattçrs 2."
1 3. While these various proposals were befvrc Commirree 4 of r ht Prepara-
tory Coiniiiission, the representariue of Australia on 20 Decembcr 1945 made
ceriain reservütions concerning aspects nf the preamblc proprised in respect of
the resohtion which was ultimately adoptcd. Hc stated, iirr~r'uirlir:
'-l'heie \vas an implication rhai Ariicle 80 imposed an obligation on
States adminisicring the territories mcnt ioned in Art i d e 77 tu place those
rcrritorics under triisteeship. The terrns of AriicIes 75 and 77 made i t clear
tbat the placing of a tcrritory under trustecship would he a vuluntury act.
Thirdly! the phrase "calls on', sincc it had a special connotation in the
Charicr {c,g., Articles 33 and 4I), was uiifortunate in ihis context.
His 1)elegaiion cordially associared itsejf ~ 4 t hthe language of the reso-
luiion, but had to insist that thc language nT the prearnble wüs not within
rhc lcttcr and spirii of Ihe Charter: ihr nctioit o f a t~in~idnfory rvoitld hr i1.r
uofurltnry us ~ f ~ o nf tntty S I U ~pirrring
P ar2y k i t d of deperidenr {ri-ritury i u i r k i .
irirslrr~shiiip>." (italics added.)
The South African reprewntativc on tlie saitie iicciision-
".. . reservrd thc position of his Delegatian tintil rhe rnteting of the Gc-
neriil Asscmbly, liecause his country round itscIf in an unusual position.
The niandaied tcrritorÿ of Soiiih-West Africa wa? ali'eady a self-govcming
counIry, and Iast year iis Icgislatüie had passeil a rcsoliition asking for
admission inta the Union. His tiovernmcnt had replied that acceptancé o f
this proposal was impossihfe o~vingio their obligations under the niandaic.
Ttie position rernained upcn, and his nelegaiion çould nut record its
voic o n t h e present occasion if by so doing it would inipIy that South-West
Afriw. was no1 frce to dererniine its own destiny. W j s Gove~nrncniwuuld,
hnrirrer, do cverflhing in its p i v e r 10 implement the Charter '."
Iii the dixussion o n the samc subject in the Prcparatory Comiiiission rneet-
in:: on 23 Oecernber 1945 the South African reprcsentative stated:
l DUC. PC;TC:~O.
Dtx. PCljtfi, Chnp. IV, Sec. 1, p. 49.
- Dot. PC{TC/42. p. 39.
fbid,, p. 40.
". . . the South Afi-ican Deltgation associated itself wholIy with the desire
of Cornniitree 4 10 apply thc principlcs laid down in thc Chartcr aiid that i t s
clTuris;had ken direcit:d towards that end. In uiew, however, of ihe spwial
position of the IJliion of South Africa, which heid a rriandaie over South-
West Africa, it reserveti its position with regard to thc dccumçrtt al prexnt
undcr revieiv, and e s p ~ i i i l l ybecause Soutli Africa considered that it had
fulIy discharged the ol>ligritions laid upon it by rhc Allies, under ihe C n -
veniinr of rhc Leayue of ~ a t i o i son . the advancemcnt towards self-govern-
inent of territnria~undcr mandate. and ihat the iiine had riuw corne for the
position 10 be exarriitit:d ar a \i,holc. For rhat rcason, the Snilth At'rrjcan
delcgation rescrvcd 11s artitude until the Aswrnbly met '."
The attitudes adopted b> niandatorieç othet than South Africa conccrning '
propusii[s for iriirrini bodie:; werc convcnienily summarised in the 1966 separate
'
opinion of Judge van Wyk as foilows:

"(a) The Uriicçd Kir~çdom.although supportirrg the proposal of the
Executive Comrrrittcc for i tie esta hlishnient of a tenipnrüry trustec-
ship coinmittee -'-a prupusül ivhich did nut cun~rirnphterhat the
said coniniittoc would have any supen,isoi-y functions in respect of
inandates not converteci to IriisteeshipziIso enpresscd itsclf in
P~vourof the aItt-rnativc proposal For thc cstiiblishmcni of an rrd hoc
criminittee, bitt suggested that the only fuiictions which such an rld
hr>ccornmittee sIiouId h a w relative to mandaIes shoiild be--
'. . . to advise the General Assembly on any mattefi that rnighi
arise with regard to the transfcr to thc United Nations of any
functions and rcsponsi hilit ies hitherto exercised under rhe man-
dates system I'.
The United Kinjtdom therefore intended the saine liniited rote for
the proposed ad !roc corli~iitteerelative to inandates as did ihe Exec-
utive Cornrniiree in its proposa1 for a ternporary triisteeship coni-
mittee.
(hl Aiisrralia siipported fhc rccornmcndation of Ihc E>iecutive Commit-
tee for the csiablishment of a temporary trusrecship committec with-
out making üny suggestion thal rhe I;,xeciitive Cornmiliee should
have provided for widcr priwers for the proposcd Icrnporary triis-
tccship~committccso as to enable it also to supervise mandates not
converted to t r ~ ~ t e t s h 5i .p
(cl Relgitrrn expressed niisgivings with rcgiird tu tht: tçtablishnlent OC a
tcmporary body and made proposais which intcndcd to avriid thc
estahl ishment of üny temporary or provisional body 6.
(dl N e w Zealand supportcd thc proposa1 madc by Yugoslavia, which
included ihe appointment of an od hoc body, subject, inter aifa, to
the arnendments siiggesreù by ihe Uniied Kingdom (as to which see
' .
UA'. PC, 3o;rrirtrl. p. 13 1
2 The coininents of the South AFrican rcprscntÿtive are quoiored in the present
pai'agraph and para. 10, suprn.
' Dttc. PCjTC/Z, p. 4 and DOC.PC/TCi4, p. 7.
+ Dot. PCiTCi'ZS.
Doc. PC~TC!~. pp. 2-3 and 5.
DUC.FCiTCi24 and Dot,. PCiTC/.;2. p. 25.
paragraph (a) above) but 'hesiiated to agrcc that a temporary
corninittee of any kind was necessary' '.
(cJ France recommended the establishment of an ad hoc comn~ittee
which was intended ta have no mission other than that or heIping
to bring about as quickly as possible the establishment OF the Trus-
teeship Cuuncit. This proposed body would have had BO supenfisory
fiinciions in respect of trust territories and wouM harpe had no func-
rion rclative to niandatcs other than-
..
'. to üdvisi: ihe Asxnibly on any niaiters arising uut of thc
transfcr to the Cnited Nations of those funçtiuns and iAesponsi-
biIities which originated eiiher in the mandates system, or in other
international. agrtxments or inst rurnenls 2' 3."
14. The reasons why the proposais for a Tcmporüry Trusteeship Cornmittee
or an ud hoc cornrnitree rvere rejected, were that in certain quarters it u-as con-
sidcrcd that any such body would be unconstituiional and t hat ihc cutablish-
ment of a tempomry body might delüy the formation of the Trusteeship Coun-
cil 4.
15. The Prcparatory Cornmission's recornrnendaiions <surnmürised in para.
12, siipra) were considered at the First Part of the First Session of the Genei-al
Assembly in January-Febriiary 1946. Addressing a Plenary Meeting on 17
January 1946, thc South African rcprcscnrativc statcd his Govcmmcnt's posi-
tion on the Sauth West Africa Mandate in the follo\ving terms:
"Undcr thcse circurnstanccs, the Union Grivcrnrnent considers that it is
incuiiibent upon it, as indeed upon al1 other iiiandatory Puwers, t o consult
the peoplc uf the mandatcd territory r e g d i n g the form which their own
future government should take, since they are the people chiefly conwrned.
lu talie pluce criid,unfil
Arrrrfigenrrnfsure uurv itr fruin jur srrclr cot~su~~alio~is
rltey lzaw becn coticludcd. the Soirth AJiicai~Governmcni iiiiirt rcscrw its
posiri47~ironcertiin~the firiire of I ~ !nn?idure,
E lopclirer wilh if.? rifht #f/u//
1iher1.v oj'acrim, as provided for in paragraph I of Article 80 of the<:harter.
Frclm whai 1 have saiù 1 hope it wilI be clcar that Soiit h West Africa
occupics a special positionin relation to the Union wtiich diffcrcntiatcs
that territory i'rom any other under a C rnandale. This specirrî posiriort
shouki be givcn /.il considerorion irr dctcrrniriing f11.efutrire srafirs of fhr
rcrrirory. Sauth Afrjca is, nevertheless, prowrly conscinus of her obli-
gatioiis under the Chiirier. 1 a n yive cvery assurance that any decision
iakcn in regrird to the future of the inandate wiI1 be characterized by a fiill
sense of our responsibilily, as a signatory of the Charter, to jniplernent its
provisions, in consultation with and with thc appruvül of the local in-
habit;ints, in the marner hest suited to tlie promotion of their maicrial and
moral welI-heing "." (Irdics added.)
On 22 January 1946, in thc Fourth Committcc, hc added:
"Referring to the rext of Artide 77,he said that ~iirderthe Charrer rhe
' Doc. PC!TC!32, p. 25.

' Doc. PC!TC/33.
Soi~lh West Afric#, Second Phuse. Jiirlgmriif, I.C.J. Reporfs 1966, pp. 99-100.
Original. fuotnotes arc rctaincd but, r-vhcrc ncccssary, rcnumbcrcd.
' UN,PC. Jouriioi, p. 125 : Soirrfr West Africa. Second ph as^, Jiidgtnenr, I.C.J.
Reportd- 1966,disseniing opinion of Judgr: Jcssup. p. 344.
GA, OR,Firsr Sess., Firsl Part, 12th Pltnury Meeting, 17 Jan. 1946, pp. 185-186.
in~cniiuncto negotiate trüsteeship agreements in respect of the mandated ter-
ritories atIniinistered by thern '.
17. In its resoIution XI of 9 Fcbruary 1946, thc General Asscmbly (in thc
prcarriblej. itrtrr aliu, expressed regret at the fact that the Trusteesliip Council
could not be brought in10 beiny at that Session, becaiise Irusteeship agretrnenrs
tiad first tn be concluded, and referred to thc abovc-mcntioncd rccommcndation
of the Pri:paratury Comtnissioii as regards expediting the coiiclusion of such
agreements. The resolution prweeded to staie. inter aiin. t hat :
". . . with respect ro Cluiprrrs X l i nirrl X i l i uf {lie Ciwu!rr. !lie Geirrrrrl
Asseri~hly:
IVi4winr.s the declarations, niade hy certain States adrninistcring terri-
turit:; nvw hcld undcr rriandaie: or an iriiention to negotiate trusteesliip
agreements. i i i respect of sonic of those tcrritories and, in respect of Trüns-
jordan, IO estahIish iis independence.
ini:ifestthc Statcs adrninistcring territories tiow held under iiiandate io
undertakr pnctical steps. iir concert with the orhcr Statcs dirwtly con-
cerned, Tor the iinplementarion of Article 79 of the C:harter [which provides
for thc conclusion of aégrccments on the ienns of irusteesliip for each
territory to k placcd under the trustecship systcm], in ordcr io submit thcse
agre~rnentsfor approval, preferably not later ,[han during the second part
of the first session of the GcncraI Asscmbly =."
18. Thc manner in which the question of mandatcs was deaIt with in the
lareparatory Commission and the First Session of the Cieneral AssembIy of the
Unitcd Nations, must h conirasicd wiih thc ircatrntnt aflorded io ottier acti-
vities of ihe 1-eagiie of Nations and the assets of the League. As aIrcady stütcd.
Comrnittee 9 of the Executive Cornmittee recommtnded. with certajn excep-
tions and quaIificatinns, the t ransfcr of thc functions. activit~csand üsscts of the
League. l'hese recommeadations, which were cited i i i sectioii 3 of Chaptcr TX
of the report of the Excçulive Cornmittee, expressly excepted the political
functions of rhe League. Also excepted were "the questions arising from ihc
wiiidinp up of the ~nundniessysicm" which were dealt with separately, as shown
above 3.
In rcgard to funciions nrising froni treatieç, the ~ u b - ~ o m m i t trccotnniend-
&
ed the adoption of a resolution by rvhich the United Nations should cxprcss
their wilIingmcss to exercix functions and pokvers previousIy entrirsted to the
Lcsgue, reserving. however, the right in decide which functions and powers
they were prepared to taki: oiler and [O deterniine wtiich organ of the Lnited
Nalions, or speçiaIized agency assoçiaied with ir, would exercise Ihe iùnctians
or powcn takcn over '.
Added to this recommendation was the foliowing :
"The transfer tn t h e United Nations of functions or powcrs mtrusied 10
the 1.e;tgiie of Nations by treaties, wnventioiis, agreements o r iitstrumcnts
havirig a polirical charücter, would if the partics to the- instruments
dcsirc. bc separately considered in cach case
As regards possible transfer o f funcrions and activitier, as weIl as of aswls,
Ihid., 14th and 15th Plcnaiy Meetings, I S Jan. 1946, pp. 227, 233 and 238.
' UN dot. Ajh4. p. 13.
Vidf paras. 7 er seq., .rirpra.
Dm. PCjEXjl l3:Rev. 1, Chap. IX, sec. 3, para. 8, p. 1 1 1 .
ibid., para. 10, p. 1 11.
WKI'nEPI STATti4ltNT OF SOU'I'H AFRICA 603
the Su bConirni ttee suçgested ihc appoiniiiient hy the I'reparatory Commission
of a sinaIl corniiiittcc to ncgotiate with rhc Siipervisory Commission of the
League of Nations regardiii~,"the parallel rneasures thai shauid be adopted by
the Leaguc of Kaiions and ihc Unitcd Nations '".
19. The Hxecutive Cornniirlee's recorninendations, as sct 0111 in wctions 1
and 2 of Chapter I X of its ieport, reveaI rrcceptance in sithstance of the Suh-
Comrnirtoc's rewrnrnendntions. Recornmcndaiion No. 1 of the Exetutive
Cornmittee reads as follows:
"1. thüt the funçtion:, activitics and asscts UT ihe Ixague of Kalions be
transferred to the United Nations with such exccprions and qualifications
as are made in the repo1.t referred to above, and without prejudice to such
action as the United Nations may subscyucnlly take uith ihe under-
standing that rhe contornptated tmnsfei- does not incliide the political
functions of the Ixague, whiçh have in Fact alreadr ceawd, but solely t h e
technicil and non-polilical functions 2;"
A foornoie relative to cxo:ptioiis and qualifications reads in part :
"7'he f ommit tee rwoiniiicnds that nu political qurst ions sltould l x
incltlded in the transfi:r. I I niakes iro rccumncrrrlrrrion to rrnnsyer the
nrrivilies cotiwrtzitig r~fijgees, t n r ~ n r k ~or '."
~ ~ sit~teurrcitional burrriru
(Italics added.)
Sect~on2 or thiç chapter of the Executive Cornmittee's report containcd a
draft rcsoluiion for [lie General AssernbIy. concerning the assuitiption hy the
U tiited Nat ions of functions of the League undcr intcmarional agreemenrs. I t
distinpuishrd belween:
"A. Secretaria1 Functions";
"H. Functions and Pawers of a Tcchnical and Non-Politicai Character";
and
"C. Trcat ies atid 1nternaiionaI Convent ions, Agrocrncnts and other
Instruments having a Pt,liiical Charactcr."
In regilrd to A and H it suggested a n expression of wiLIinyness, subjcct lu the
cservat ions rncnrioned by tlic SubCominitree, IO ensure con! inued exercise of
functions and powcrs. In retard to C it suggcsted ihe following:
"The General AsserribIy of the United Kations dccides that i t wiIl
itself examii~eor will iubriiit to thc appropriale oigan of the United
Narions any request froni the parties tliat the United Nations should take
ovcr thc cxercix or functions or powcrs enlrusted to the Lcague of Nritioiis
hy trcaties and internaiiiinal conventions, a g r ~ w ~ ~ tor
n totlter
s instruments
having a palitica1 characier ?.'
Thc Sub-Corrimittee'sreccrnmendarion thai a small Committce be appointed
to negot iate with the Lea:zue Supcnisory Commission regarding paralle1
rneasures, \vas endorseci 4.
20. Discussions in the I3repara[ory Commission itsclf ~vt.aled I hat t n.0
delegates in the Excçutive Ciimmittcc had votecl against acceptance of Chaptcr
' Ibid.. paras. 32 and 33. p. 1 14.

' lbici., p . 1 US.
inin., p. IIO.
Ihid.,p. 109 (lasi para. of sec. 1 ).
',
IX of it3 repart and also that there ivas concern amongsr soine deIegatcs
about the possibility th(the word "transfcr", as uscd in the remrnrnendations
conœrning functions and activities of the Ixague, could "imply a IcgaI con-
tinuity wMch wauId not in fact txist", rmuItiiig in a suggcstiun that the phrase
"thc asslrrnption of rcsponsibility for certain functions and activities" rnight
',
be adopted '. 'l'his wits eireiitually done wiih thc furihcr substitution of
"powers"' Kor "activilies". The rwommendations of the Coniinission. relative
in functims and powers, in the form a s ftnal ly adopted by Ihe GeneraI Assernbly
in its resolution XIV (1) of 12 February 1946,rcad as foilows:
"TE:AYSFEK OF CERTAIN FUKCTIONS, ACTIVITIES A N D

ASSETS O F THE LEAGUE OF NATIONS
FUKCTIONS A N D I'OWERS BELONGIKG TU THE LEAGUE

OF NATIONS U NDER INTERNATIONAL AGREEMENTS
Under various treaties and international conventions, agreements and
othtr insirumcnts, thc Lcague of Nations and its organs exercise, or may
be ~:questedta exercise, nurnerousfumtions or porvers for the continuance
of which. afler the dissolutiun of the League, it is, or rnay be, desirahle
that the Unitcd Nations shoutd provide.
Certain Memliers of the United Nat ions, which art: partics to some of
these instruments and are Memkrs of tlie h g u e of Nations, have in-
furnicd thc General Assemhty that, at the forthmrning session of the
Asst:nibly of the Imgue, they intcnd to movc a rcsolution ivhcrcby thc
Metnbers of the k a g u c wouId, so far as this is necessary, asseiit and give
cffot:t to the steps cantemplated k i o w .
Th-efir~:
1. The Genernl Asscnih(v resentes tlie right to decide, after due exami-
natim, not to assume any partiçular Funcrion or poivcr, and to determine
which cirgan of the United Nation5 or which spxiaIized agency broiighr
into rclationsl-iip with the Lnited Nat ivns should cxcrcisc cach pariicular
function or power assiimed.
2. The Geii~ralAs.seinl)ly records that those Menibers of the llnited
Nations which are parties to tht instrunients rcfcrrcd to above assent by
this resolulion to ihe steps contemplated heIow and expr-5 their resoIve tu
use their good offices tci secure the co-opcra tion of the other parties tn the
instriiments so far as tliis may be necwary.
3. The Chnrrui rlsseinbb ùocIarcs that the United Nations is willing in
principk, and subjcct to the provisions of this rewlutian and of thc
Charter of the llnited Nations, to assumc thc excrcisc of certain funciions
and porvers previousIy entrustcd to the League of Nations, and adopls the
following dccisiuns. sct forth in A , B and C below.
A. Fmc~ionspcrtniriirtg ia a Serre turiut
R. fitirciions and Powcrs of n Technicul cind !Von-Political Cknrncifr

Among thc instruments referred to at the beginning of this resolution
are some of a technicar and non-political charactcr which contain pro-
Duc. PC{LN!2. para. 1, p. 2.

Ibid., para. 3, pp. 2-3.
' DOC.PCiLN/IO. pp. 10-1 1.
visions, relating tn t h e substance of the instrumenrs, whow duc cxoctttion
is dependent on the exeri:isc. by the k a g u e o f Narions ar particular organs
or the 1-eague, of funt:tions or powcrs conferred by the insrruments.
Ccrtain of t h e x instrv,nienis are iiitiniately connected wit h act ivit ics
which thc Unitcd Nations will or may continue.
11 is necessary, howevcr, to examine carcfu1Iy wliich of the organs of the
United Yations or whiclt of the spfxialized agencies broiipht inro relation-
ship wirh the Unitcd Nations should. in rhe future, exercise ilie functions
and powers iii questioir, in so fas as they arc rnain~aind.
Thcr~fore:
The G~IICPCII Assemnb[ï is willing, subjtxt to the.% resci-vations, to take the
necesçrtry measures to essure the continucd exercise of thtse functions and
powers, and refers the rriatler l o ihe Fxonomic and Social Council.
C . Fiitrrrions arid Powors under Trenrirs, InreunnriotiaC Cnt~vcrrlioris,
Agreetnenls ancl 01kcr fnslrr~nietrisHaving a foiitic(z/ C'Imracr~r
Ïï1~ Grrierai Assemblÿ wi[t itsclf çxamine, or will submit to the appru-
priate organ or the United Nat ions, any request from t hc parties that the
Unitcd Nations should assume tlie exercise of functions or powers en-
trusted to the Lcague of' Nations by treaties. international conventions,
agreements and other instruments having a political charactcr. . . '"
Regarding transfcr of assei-s, the P~parittoryCotniiiission ori 18 Ikoernbcr
1945 set up a committee-
". . . to enter, on its bellaIf, into dixussion with the I-eagite of Nations
Supcrviwry Commissior:, which bas been du[y authorized by thc mcrnbers
of thc Lcayuc of Nations, for the purpnse of estabIishing a cornmon plan
for the tmnsfer of rhc assets of ihc Lcaguc to the Uiiiied Nations on such
rerms as are considered ,just and convenient. This plan will bc subject, so
far as ihc Unitcd Nations is conwrntd, to appioval by the GencraI
Asseinbly 2."
Ir will k observed that tht: task of this negotiating cornmittcr: \vas confined
to assctu, ihc earlier rewntrncndürions of the Executivc Cornmittee and its
Sub-Cbmrnittee (paras. 18 arid 19 ahnve) not bcing foilowed in so far as thcy
rclated to functions and aciii.ities-ostensibly insrnuch a5 rhe cconccprion of a
"transfer" of ccrtain funcrioris and octivitizs had been abandoned in fiivour of
one of "assumption" of ~ ~ r i h funciions
in and powers.
The Coniniission's recomtnendation regarding asscts was mercly thai the plan
I O be dcvclopcd as a rcsu1t O( the discussions shoüld be submitted for approvaf
to the GeneraI Asscrnbly 2. This was done at the First Part of the First Session,
the General Assemhly apprwing of the conlinon plan in Part III of rrsolution
XW of 12 Fcbruap 1946 (scpru).
C:. I)iswliitirin of thc Imgw of Nations
21, -The situation as far iis the League of Nations \vas concernedl üfier
establishment of the United Nations, WBS dcscribed i i i a Lcague publication as
frillows:
"The adoption of the Chariricr of ihr United Nations by a Conference al
- .-
: G A resolution XIV (I), 12 Feh. I446, in L N doc. Aj04, pp. 35-36.
? Dm. PC/20. p. 1 18.
whizh thc grcüt inajurity of the States Memhers of the League vierr:
repi-esented made the latter's uitiniate disappearance a foregone con-
cimion and from that timc onwards the chief conccrn uf ihose responsible
for i t s destinies was to see that its activities were tcrrninated in a münncr
ivorthy ofihe pari i t has playcd in worfd affüirs during thc iast quarter o f a
cenrury I.''
22. Tl-ie SecretaryGeneraI of the League. in a comiiiunicat ion dated 20 Scp-
tertibzr -945,dreul the attention of Leayue Membcrs to the task cntrusted at
San Francisco io thc Unitcd Nations Prepararnry Commission reiaiive iu
"the possible transfer of certaiir functions, nclivities and assets or the L r a t i e
which ii rnay be considered dcsirabk for the ncw Organization io take over on
tcrms to bc arrangcd "'. TThc cornniunication contained a proposai t hat the
Supervisory Coinmission of the League be einpowered to negotiale with
represenwives of the Un~tedYations in this regard and to dra-1 up provisinna[
terrns of transfcr "subjcct to the final decisiort of 1 he I..eague Assenibly '".
The
proposai was accelited hy the Meiiibers of thc Lcaguc, and negotiations were
tntered lnto with the United Nations ncgotiating committcc cstabIished by i t s
"
Preparatriry Cumrnissian on 18 Ileceinber 1945'. By reasvn OC ihe limiied
ierrns of' reference of the Unitcd Nations cornmittoc the negotiürions con-
cerned assets only. The joint delihentions were successful and resiilted in the
"commr-n plan". which was approved by [he General Assernbly of ihc Uniicd
Nations in Pari III of its rcsolution XIV of 12 February 194h3. lt still required
the asselit of rhc Lcague ttsseiiihl y to beconle elt'wt ivc.
After having referred to the Vniled Nat iuiis rcsolutions reIii~iveio possi blc
'.
assurripliciri uf Leayuc functions and powers the authors-of The Lmgw Han&
Over stated:
-'Thus by rhc tinic the Assernbly met in its iwetity-first session i t was in
pas:icssion of the United Nations' pIans for rakiny of the League's material
assets and for crtrrying on, cithcr dircctly or through one of iis relaied
agencies, al1 thc League's ~nostimportant funclions and act ivities af a
non-poIitical characler. Its niain business, therefore, waç 'to make prc-
vision for bringiny ~ h cLciigtic of Yations to an end in orderly fashion, so
thai as muçh as possible of its surviving work can be cnntinued without
intcrrupiion and as niuch as possible of itj property can be used to promoie
those higti putposcs of international peace and co-uperation fur which the
League irsclf was founded' '."
13. Tlie League Assembly met in its Twcnty-first, and last, Session fimm
8 to 18 April 1946.
Iis final resolution, üdopfed on I R April 1946, provided at the commence-
nient of its operative part as @Iloivs:
" Dissolririori of tl~cteag~teof ,Votions
1. ( 1 ) Wirh eEect froni the day foIIowiiig the dose of ttie preseiit session
of ilie AssenibIy, thc Lcague of Nations shall cease to cxist except for the
' The !.PURIIC HaniIs Ovrr (1916), p. Cil.

Vitle püra. A, supra.
Yi& para. 20, sitpra.
At p. 63. Tlie yuutaiion $vas taken irom the Report of the First Commiitrx Lo
the Assciiibly i t i L. of,X1., O.J..Spcc. Sup.. 30. 194, p. 250.
sole purposc o f ihe liqr~idationo f its afîairs as providcd in the present
rcsolutioii '."
The rcsi ot" rhe resoIution relütcd to practical arrangeriients concerning
liqiiidation. Thus in paragraph 2 provision waq made for thc appointment of
ccrtain pcrsoiis to forni a "Board of Liqi~idation"which waî to ''i'eprcscnt ihc
I ~ a g u efor the piirpose or et recting iis liqiiidation".
In the same paragraph thc powers of the Board were circurnscrikd as
follows:
"Subject to the provisions cif rhis resololutioii and othcr decisions
laken by the hsscnibly a( iht: present session, the Board shall have full
priwcr to givt such directions, make such agrccmcnis and take al1 si~cich
rrieasiires as in its disçrciion i r considcrs appropriate for this piirpose."
Paragraph 5 of the resolittion approvcd of the "Corninon Plan" for transfer
of as.sers tr, thc Uniied Nations.
The final paragraph of the resoIu~ionprovided as follo\vs:
"On the completian nf its tiisk, the Board shall make and publish a
report ta thc Govcrnmc:nts o f the kfeniliers of the Lcayue giving a full
account of the mcasurc!. wkich i t lias takcn, ~ t shall
d dedare itwlf io he
dissoIved. On the dissolut ion of thc Briard, the Iiquidation shall bc dccrned
to be carnplclc und nu liirther clairns against the Lcaguç sliall he recog-
nized,"
The rcsoliiiinn contained no provisiuns with regard to iiiandatcs or f'uiic-
tjons in conncctiori with niaridates.
14. "The Assurnptian by tlie Unireri Nr~fiotisof'Fuiirrir,ii.r and P u w m Iiirher~o
cx~rciscdby ?Ar /drzplte ~tt~de~~/nrrr~mrionc~I
Agrcc~ic~irs" was the hciiding of a
separate resolution advpted i:ailier on 18 April 1946. It rcad, in so Far as is
relevant, as follows:
"The Assembly of the Ixa2ue of Natiuris,
Haying considered the i~solutionon t hc assumpr ion hy the United Nations
of functions arid poweis hit lierto exercised by the League of Nalions
undei international agret:menrs, which was udvpted by thc General Asseni-
bly U T the Cniied Naiioiis on Fehruary 16th 1946 2.
Adopts the followiny rcsolutions:
1 . C u s t ~ rij'
r ~[Be
~ Origind ?>A--rs
of ~ttfcvtrario~~dAbrrec1lient.r.
. . . . . . . . . . . . . . . . . . . . . . . . . .
2. Fimciir>,is atiii P o m ~ snrisitzg uitr of Inrrvnotionnl Agrretrieno of a
Techniccli and von-piiiiticni C h c i c r .
The Assernbly rccorninends the Giivrrnmen~sof the Metiibcrs of the
I.eague to facilitatc ln c.r.cry way the assuriiption withvut interruption by
Ihe Uniied Nations, or hy specia1izc.d agencics broüght into rciat ionship
\vit h that organization,or rtinctinns and yuweis which have k e n cntrusied
to the lxague of Narioris, undcr iniernaticinai açreemcnts of a techniçaI
und rion-political characier, iind which thc United Nations is willing to
mainiain '."
L. u j N. O.J., ~ ~ c c . ' ~ r i No.
p . , 194, p. 281.
Thc tcxt of thc Gcnçral ;i.ssrrrihlr resolutiun appcars in parri. 20, ruprri. Tlie
daic thcrcof was 12 F e b r w r y 1946, not 16 February as sicired in the 1.eaçue reso-
Iiiticin.
L. vf Ar., 0 . J . . Sycc. Siip., No. t94. p. 278,
25, "Thr A.ssrrt~iprionby the Unircd Aariom ofdcrivirics hirherro perforr~i~d
by rha Ltwgue" was the headiiig of a further separate resofution of 18 April
1946, reading as fullow~:
"The Aswmbly directs the Secretary-General or the League of-Nations
ro alford every facility for thc üssumption by thc United Nations of such
non-polirica1 octivitia5, hitherto perforrned hy the kague, as the United
Nations rnay decide to assume '."
25. Fiilally, "1Mnnriurrs" was the heading of another important separate
resoIution of 18 April 1946. Bcforc sctting out its tcrnis, regard is to be had to
certain r ~ c n i swhich preceded its adoption.
(a) The session was scheduled to lasi less than two weeks, and delegates
knew that it would not be possiblc to discuss thc futurc of thc niandates sptcrn
at any lcngth in an appropriate Cornmittee. Inforinal dixussions were con-
sequentli- initiated between those Mernbers of the League mosi direct Iy çun-
ccmcà, with a view ro seciiring the greatest possible measure af agreement
before t h e rnatter was oficially considerd in the Corrimitter.
In putsuance of the said disc~issions,the reprcsentativcs of Mandatory
Power,, in adàressing the Plenary Meeting af the Aswrnbly, made staternenrs
indicating the intentions of their Governments regarding their resptciive tnan-
- dates. In the resolution uttimateIy adopted the Assernbly "took note" of these
statements.
{ b ) Tlie following arc rclcvant cxtracts frvm thcse sliitcmcnts uf inlention
by the various iiiandatories:
(i) By t h represetitatire of the L7tiired Kingdon?(on 9 April 1946) :
"Tlie mandatcs adminisrered by the United Kingdom were originally
hose for Iraq, Palestine, Tran~joriisn,Tanganyika, part of thc Ciirncroons
and pari of Togoland. T w o of tlrese territories have already b m m c
indepndent sovcrcign States. Iraq in 1913, and Transjordan just the other
day in 1945. As for Tanganyika and Togoland undcr thcir mandate, and
thc Ciirncruons under their mandate. EI is Majesty's Ciovei-nment in the
Li niied K ingdom have aircndy cliinounced t h ~ i rinrenriofi oJ piacurg itieni
irnder rkr ~rtrslershipsJ:.ciernof i he Litiileti Ivnrions, siibjcci lo ?~cgulinliutu
otr ~~~tisfucfory rertrrs of zrrrsirrskip.
Tlte future of Pa~cs~ine mtriiot be dcciiied tat~fifriie An&-Ai?irriran Con?-
mirtee (#' Enquiry Lave rendered iheir report, but until thc tthcc African
territories have actually bcen pIiimd urider trusteeship and untiI fresh
arrangements have been reached in regiird t o Palestine-wl~utcwr ~hvsr
irrrrrv.qcmcpzts ma.v 6e-it is the intefirion of Ilis Majesty's Governrncnt in
the United Kingdom to continuc to administer these territories in accor-
dancc hvi Ih the general principles of the eliisting mandates 2." (Ttal içs added.)
(ii) 311the represen/nriw ofSouth Africa (on 9 ApriI 1946):
"Since the last Leaguc meeting, new circumstances have arisen oblidng
the mandatory Powers to take into revicw the exiaing arrangc~ntntsfor
thc ;idrninistration of lheir mandates. As was fulIy explained at the r w n t
United Yakions Geneixl AsscmbIy in London, the Cnion Govei'nment
have deemed il incun~bentupon thcm to consult the peoplcs of South-
Wcst Africa. Eurupcan and non-Furopean aIike, regarding the form which
theii- own future Government should rake. On rhe basis of those c n n s d -
' L. of N.,O.J.. Spec. Sup., No. 194, p. 278.

ibid., p. 28.
tations, and having reeard to thc unique çircumstances which so sigiially
difi'eientiate South-Wet Africa-a territory contiguous wirh the Union-
frnm a11 othcr rnandatt:~, it is tIic intention oJ ihe Linion Governttzen~,nt
rire fartlrtroitriy. ,te.r.~ionof !Ar L'r~ir~d Nurions Ge~wralAssembl~il?New
York, io jurmulrife ils cgse for riccording Soirth- Wc.71 Africa n stolus finder
whihirlt ir worrid hc Nriarnt iiio?inlly rccogriizerl irs lin inirgrul pmr o f t l r ~Uiiion.
As the Assembly will kaow, i t is already administcrcd undcr ihe tc~rnsof
the ~nandatcas an intg:ral part of thc Uniori. ln the iiieantime the Union
wiI1 continue to administer the territory scrupiilously in awordance with
thc cibligatiuns of the inandate, for the advancement and promotion of
the interarts of the inixibitanrs, as shc kas done duriiig the past six years
when meetings ot' the hlandiites Coininission could no1 be held.
7hc disnppmrarice vf:husr organs ofrhr I.rrigue ccincrrii~dwirti the supcr-
i.ision of rrinriduies, pri,rrt~riiy the Maridates Conrinissiort and the L E O ~ I I B
Cotincil. wiiI ize~e.t.rai.if~ precfude mmpicre corrrpfiance wi:Ii ~ h knrr e of rhe
ninnclate. Thc: Union Goveinment \vil[ neverthe!ess rcgard thc JissliIrilion
of the League as in no way diminishing i ts obligations under the mandate,
which it wi(l mntinue IO discharge wwith the fidl and proper appreciation
of its rcsponsibilities until such tinie as other arrangcmcnis arc agwed'
upon concerning the fururc status of thc tcrriiory l." (Italics added.)
(iit j By the representutii:e0f.f krrnr:~(on 1O April 1946):
"The French Govcrnnient intcnds to pursiie the execution of the
mission entrusted to it :>y rhe Ixague of Nations. Ir considers rhat it is in
accordancr: wilh the spirit of the Charrer that This niission shoulJ hence-
forth be carried out utider the kgirnc of trusiceship and it is ready 10
examine the terms of an agreement to define this r&ginie in the caw uf
Tugoland and ~ h Cameroons
c '."
uj-ilirw%en/nnd (on I 1 ApriI 1 946):
(iv) By ~ h reprcsetrruriv~
e
"New Zcaland hiis a!ways strongly supported rhe establishment of the
International Trustceship System, and hits alrciidy dechred ils ir,illingness
to place the mandated ti:rrirory of Western Samoa undcr trustee~hip.. . .
New Zealand does noi consider that the dissolution of the Lcriguc of
- Nations and, as a consttquence. of ihe I'ermancnt Mandates C~i>ini-iiix~i,sion
will have the eiTect or dirninishing her obligations to the inhabitants of
Western Samon, or of incrcasing hcr rights in the terrjtov. Until the
condusion of Our Trus;:eeship Agreement for Wcstcrn Surrioa. therefore,
the ferritory will conrinue to bc aclrninistered by New Zcakand, in accor-
dance with the terms of thc Mandate, for the promotion of the welI-king
and advanceinent of tlie inhübitants .- .
i v e1 t
(v) B-v fihc lleipiari r ~ p r a s ~ t i t n ~(on ri119463'. -
"At the meeting of :he ~ e n e i a lAssenibly of the United Nations in

London on January 70th Iasi, shç [Le., Belgiiim]:dccIared her inlefilion
af entering into ncgotjations with a view to placing the Territory of
Ruanda-Urundi under the new régime. In pursuunce of this intention,
the BeIgian Govrrnrne~thas prcparrd a draft agreement setling out tIic
conditions undcr which it witl adrninister the tcrritory in question.
l ibiri., pp. 32-33.

Ihili., p. 34.
lbid., p. 33.
I n thc course of the same declaratinn of January IOth, WC expressed our
confiderice tIint ~ h Trustccship
e Couricil would saon conie to wctipy in
the United Nations Organization the iniporlan t placc which it deserves.
We can only r e w t rhat hope herc and giiie an assuralice t hat. peiidiny ils
realidion, Belyiurri wilI rcmain fully alive to al[ the obligations devolving
on n;ernhers of the United Katioris iindcr Articlc 80 o f t he Charter '."
(vi) 3y fhc Arrsrruliati represeniaiive (on I I Apri l I945) :
"'I'he trusteeship system, strict ly su ciillcd, wilI apply onIy to such
lerriiories as are voluntarily brought within i t s scope by individiial trustee-
ship agreements. . . . A f f e t~ h ~li.\:wlitriunof rlie Lraguc of t\'t~linn.s rrnrt the
cu tzsi~yurniliqrtidurion of the Pernin,renr Mnndaitrc C.'ntnrnission, it wiil he
irnporsi5Ie :O ronrinir~firc nianihrcs sy.5-retnitz i l s eiitirery.
Notwithstanding this. the tioverntnent of AustrüIia does not regard ihc
dissclution or ihc ixttgue as lcsscning the obligations iniposrd upon it
for the protcctioi~and advancement of the inhubiianrs of thc mandated
tcrrii.ories, which it regards as havingstill fiil[ furceand effect.Accordingly.
untit the coming iriio force of appropria te trusteeship agreernenls under
Chaprcr XI1 of the Charter, the Governinent of Ausirulia will continue
to adniinister the present inandated teriitories, in accordance wi th the
provision o f t h e Mandates. Tor ihc protection and advancenient or rhe
inhabitants. In making plans for the dissolution of iite bague, thc Asseni-
bly will vcry properIy wish to be assured ro the future of the inandated
terrii.ories, for the rveIfaz-e of thc pcoplcs of which this Leagire kas becn
responsible. So far as the Australiün territories are conarncd. thcre is
full assurance. In due course these territories will be brought under the
trusteeshili system or the Uriiied Nations: until then, the grouiid is c o ~ e r ~ d
nu, otliv by ihe pl+e iv1zicir rite G<n~ern?treni uJ Aitsrralin has ~ i c ' c io
~i~ h i s
Assetnbly ro-dny !>ut nlsn hy fhr e.~piicifinferr~o~ionni ohiig~i!iotr.sIuid &WII
itt Clrupler XI of tlrr Chtirter, to which 1 have referred. Tkrrr w i i l be no gnp,
no interregnitm, IO be pro~idedfor?." (ftaIics added.)
In the carlier refcrcncc to Chaptcr XI nf the Charter lhe Australian rcpresen-
taiive had said:
"Aniongst other t hings, each adrninistcring authority under that chaptei
undeitakes to suppIy to thc United 3 a t ions informa [ion conwrning
cconomic. socid and d u c a t ional condilions in i t ï dcpcndent territories 2."
(vii) No stalemcni was made concerning the ruttire of ihe Pacifie Tslands in
respcct of which a Mandate had been yranicd toJapiin.
{cj After the above statemenrs by the rcpresentatives of the Cniled Kingdoni
and of South Africa had bccn made (on the morning of 9 April L946), but
before the others could be deliveied. and whilc t hc informa1 discussions were
stitI proceeding regarding the drafting of a remlution. the represenlative of
China, Dr. 1-iang, raiwd thc qucstion of the future or mandates in the First
Comrnir tee on the afternoon of 9 April 1945.
Thc Cornmittee ivas at the tin~econsidering thc draft resalution coiicerning
assuinption by the Uni!cJ Nations of League tùnctions and powers arising out
of international agrecmcnts of a technical arid non-puliticai charüctcr (vi(ic
.
t. of .W., O. J., Spec. Sup., No. 194, p. 43.
= Ibid., p. 47.
WK~TTE:I JI-KIEME'IT OF SOUTFIA ~ R I C A 61 1
para. 24 above). D r . Liang, wished to propose for discussion ttie following
drrifi resolution. which he read out :
"The Asscmbly,
Considering that thc Trusteeship Council kas not pt becn constituted
aiid tliat al1 mandated ~erritoriesunder the Leagiit have not b e n trans-
fèrred into tcrritories under trusteeship;
Considering that the League's function of supervising mandated terri-
tories should be transft:rred 10 the Ilnitcd Nations, in order to avoid a
period of intcrrclçnurri in the supervision of thc mandatory régime in
thcsc territories.
Xecon~iri~iids t ha t the rnandatory powers as welI as those adrriinisteriiig
ex-enemy ~iiandatcdteriitorics shaIl continue to subrnil üniiual rcporrs tu
thc Lrnited Nations and to suhmit to inspection hy the same until the
'irustee Counçil shaIl havc k n constituted '."
Tlte Chairman, tiouoever, ruled thaï the proposil waq not relevant to the
item ttien under consideraticrn by the Cornmittee. What transpired is sti forth
as follows iri tiie Surttir~ctr~v Riarnrrfsof thc Lmgue:
"Dr. Lorre Lir;ng (Chinü) rderred to the position of territories uiider
nlandate and to thc po:.ition which wouid arise on the dissojution of the
Lcague. in view of the facr Chat the trustwsliip council of the Unitcd
Kations has not yet be:n appointed and $vas not Iikely to be set up for
some rime. Thc Chincst: dclegation wislied tn submil a resolurion recorn-
nicnding that the manciat01.y powers should continue to SU bmit annuaI
reports on the mandated tcrrirories i o the United Nations and lhat they
should agree ta inspection by the latter. pending thc constitution or the
t r u s i ~ ~ s hcouncjl.
ip
?ïrr Clmirman rhough t that [he question raised by the Chinesi: deleetion
cotild be discussed latcr, but for the mument they must conlirie thcmselves
io cxamining the reçolutjons of the Un~tcdNations in the order in which
they appeüred in d ~ u m c n tA113.1946. 'The G~meraiAssernbly of the
United Nations had cc:rtainly not had rhe question of the sptern of
trusiccship in inind when i t drafted its rcsciluiion on functiuns and powcrs
under intcmtional agrecmcnts uf a techniml and non-political character.
Dr. {.me Liottp (Chinit) accelited t hc Chairman's expianation 5."
(dl Follnwing this incidcrit. the informal discussions mcntioned above were
rcnewed, the Chinese detegar ion also participaring t herein. The fiml outcorne
was that whcn the qtiestion of Mandates was reaçhed in the Eirst Cornmittee,
on 12 April 1946, thc Chinrse delcgate, Dr. I.iang, himselr introduced a new
drah of which Sir Hartley Shawcross of thc United Kingdoni said, when
seconding the proposa!, that i t - -
". . . had becn sctrled in consultation and agrccriicnt by al1 countrics
in terested in mandates. and hc thougtit it could, thereforc, be p a s ~ d
wirhout disciission and viith cvmplete unanimiry "".
In proposing the new draft rcsolution I>r. Liang-
". . . rtxalILul ihni hg had already drawn thc atlcntioii of the Cornmittee
10 the complicated prrihlenis arising in regard to niandates fi-0s-n the
f'iffr L. of N., 2 [SI ~sscr,itify, 1st Coiilin.. 2nd Meeting, provisional record.
' L. of N.. U.J., Swc. Sup.. No. 1Y4, p. 76.
ihid., p. 79.
transfer of funciions from the Leaguc to thc Unitcd Nations. The Uiiited
Nations Charter in Chapters Xlï and XII1 established a systein of trustee-
ship hased [argely upon the principIes of the tnandatcr: syslcm, but thc
funciions of the k a y u e in ihat rcspcct werc 1101 rrffnsfcrred nfiroinnricnily
to tkc United Nations. The Assernbly sl-iouldthecefore take steps to secitre
rhe mntinued appIjcation of the principles of thc n~andatcssystcm. As
Prof:sscir Bailey had poinlcd out to thc Asscrnbly on the previous day,
the tcagi~cwould wish ro he nssured as to tlie future of iiiandated ierriiories.
The matter had also been referred to by Lord CcciI and othcr dclegütcs.
It wus grcit$ying l o thc Chincsc dcIcg;ition as representing a countiy
which had alwiiys stood for the principle of irusteeship. that al1 (lie
Mandatnry Powers harI minoünced their inrmtion to adrninistcr the icrri-
turics under Ithcir cuntrol in accordancc with their ahligations under the
nlrindatcs systeIn r i ~ i r i lolher orrungrmrrr/.s wrrr uprecd upoii. II *.os rn h~
hoprd that the Jiirure a r r a n ~ ~ m e n i Ios be made wi th regard to thesc lcrri-
tories wuukd apply, in full the pprinciple oj'~rirstce.qi~ip iinderlying the man-
date:;system.
The Chinese delegaiion had plerisiirc irr presenting I the draft reçoluiion
n u w hfon: thc Committcc, so that the question could k discusscd by the
AssernbIy in a cwcrete fririn and the position of the Lcüguc clarified l."
(Italics added.)
The rcwlution was supported by the French and AustraIian rrprercntatiws.
The French representative. speaking in support,
". . . wishcd
to stress once Inore the fact that al1 territories under the
m a n h i e of his Ciovernment wouId continue to bc administcred in the
spiril of the Coivenantand of the Charter '".
The Australian representative:
". . . welcomed the initiative of the Chinese delegaiion in rnoving the
rcsolution, which he supported. The Australian delegiaf ion had made its
psi1 ioti cIear in ihc Asscmbly-namcIy, that Australia did not regard the
dissoliirion of the League as weakeniiig the obIigatioiis of wunt ries
adrninistering mandates. They regarded the obIigrrtions as still i i i force
aiid would conlinue tu aclminis~erthcir rnlindntcd territories in accoi'dance
with the provisions of the mandates for the wdf-hein': offlie irrlinlii~niits.
Ovcr and ahove i hat, Aiisrral ia recognized obligations iinder the Charter
which she had aIready iissurncd as a Mcmbcr of the Unitcd Nations and
others whiçh shc would assume in bringing tlie Territories undei thc intcr-
national t rusteeship system '." IIfalics addud.)
The Egyptian repr.esentutivt:"müdc al1 r~scr\~aiions on khülf of his Chvern-
ment wifI i regard to Palestine '".
The draft tesalution Ras nut to the vote and addo~tedunanintouslv . subiect
-
to draftiiig. the Egyptian rcprcsrniativcabstaininp 3 .
feI the ne^ drafr containcdwhat cvcntuallv bectirne the ,2sscmblv's resolutia~i
con&rning rnandatcs. 'l'Re adoption of that <ésolurjnn by ihe ies&rnbly on 18
April 1946 Ras wiiIiout discussion, save that lhe Egyptian reprcscntativc
indicated that he wouId abstain from voting hy 1-eason of a rcscrvation of
' L. of W., 0.J., Spoc. Çiip., Yo. 194, pp. 78-79.

Ibid., p. 79.
WRITTE:~
STATEMENT OF S(>L:TIIAFRII:A 615
rena rvhich inçludcs 'unilateral eng.agernents o f an internat ional character
which have heen acceptixi' l".
28. An cxarninatiun of V.~liime1 of tire ï'rcc~ry Sevic.7 of the Li~iitedNations
discloses thiit no intcrnatioiial agreements arising from the liquidalion of the
Leagiie ikere regisrercd ündi:r Part 1. Had a n agrccmcnt (including a unifa~cral
cngagcmcnt which had b t ~ f accepted)
i heen entered inro whereby ariy member
of rhe United Nations undrrtook to silbmi~to Cnited Nations siiptr vjrion '. in
respect of Mandaies. such sn agrccmcnt would have rcquircd registratiun in
tcrnis of Ariiclc 102 or ihe Charter.
Under Ilart II of Volume I of ihe Trrati. Srrips, the firsl six items al1 relate ro
matters invoIving the transfer of iiswts and sctivitics from thc Lcague of Nations
to ihc Unitcd Nariuns Organization. Fo agreement relaring to ,Mandates is
inctuded.
Il. Thc Pcrid 1946-1949
30. Over the years of the :Aandatc's cxistcncc a growing desjrc had developcd
amongst thc inhabitants of couth West Africa for closer association with South
Africn and for tern~inatioi~ o f the Mandate. This desire found conçreie expres-
sion in resoIui ions passed tny f ihc South Wcst Africa Icgisiüt ive Assrrri bly as
für back as 1934. On 14 May 1943 the Legislative Assemlily agaiii askeù fur
terinination of the Mandate and incorpor.ation of the Territory in ihc Cnion of
Sourh Africa. A s ~ n i ~ l aresolut
r ion was passcd on 8 May 1946.
Since thesc raoltlf ions irrnatiatcd frorn a body rvhereiii the non-White
sectioiis of the populatioii wert no! dirwtly reprrscnted, the South African
Governnient fell that they :;hould bc fuIly and dircctly consultcd as io tlieii
wjshcs. Thc Souh African Government had made knowi~on n number of
occasions duriiig 1945 and 1946 its intertrions as to the future of South West
Africa. This \VAS done filmsi?IIIhe San Francisco Conference in May 1945 2. In
Januüry 1946. at thc First P:irt of its Fist Session, the Iliiited Nations Gcneral
Assei~~hly '.
u7asinformed aiid in April of that year also ihe League of Kations
Asstmbly ai ils Iinal Session", of South Africa's intention to cnnsult ~ h e
inhabirnnts of Soutli West Africa rcgarding the luture of ihe Territory.
The consultation^ whicli were thercupon çondiicred, wsiilted in an over-
wheIrniny majurity uf the nun-Whire inhahitants of South West Africa express-
ing thcmxivcs in favour of "our corintry [kcotnitig] part uf the Union of
Soutli Africti"; 208,850 \vert! in favuur; 33,520 werc againsr; and 56,590 could
iiot be consiilted becaiise ot' praçtical difftcultics.
Thc rcsults and thc rnanncr of cot~sultation,as weIl as a reasoned siaierricnt
on the questioi~of incorporation, were Cully set oitt in a "Memoranditm on the
admini5rration o f Sotith Weit Africa and on thc wishcs of its pcoplcs as to tlie
fulurc of thc Tcrrilury", s~ibmittedto tlie Secretary-Cieneral of tlie Uii~ted
'lations hy the Sou th African Government in October 1946 ?.
3 1 . rn Noveinber 1946, !he South African represeniat ive (Ficld-Mars hnl
' 1, p. ?; vi.
Uiiired Nh'ootis Treary Set ie.s, V~<il.
V f d ~para. 4, sitpro.
Vicie paru. I S. supra,
YÏde para. 26, supra.
U N doc. A!123, i r i GA, O R , First Sess.. Sccond Part, Fourth Cumm.. Part 1,
pp. 149-235.
32. Apart from the exprt:sscd wishcs of ihe inhabitanis, the iiiimcrous other
considerations relicd on fc+r iiicorporatioii, as set out in the Memoiandum '
and elaborated on by Fit:ld-Maihshal Smii ts in his addresses, included the
following<brieBy stated!:
(a) Expcncriçe had showri ihat the circunistances of Soiith Wcst Africa did
not wrmit of entirel:: sat isfactriry adniinistrüt ion undcr the i-i~andates
sysiem-or any analogpus sysieni.
( h l Thc geograpliical features and location of Soiith West Africii, ils vast
semi-dcscrt arcris. its (:limate and low rainfall, and ils spiise population
re~ideredit incapable oca separate economic existence.
( c ) Expcrience in two WorId Wars had shown I h a i for strategic and w u r i t y
reasons South Africa aad South West Africa should consiiiuie a single unit.
(ri) Tlie various peoples of' Soutli West Africa had a closc cthnoiogical and
national alllnily with those of South Africa-a substantial number in
füct being o f Souih Africiin origin and Souih African cit izei~s.
(P) A large nleasure of inti:grationof the administration of South N'est Africa
with thai of South ASrica-as sancrioned by Article 22 o f thc €civenant
and tlie Mlindaic-had already iaken place, and furthcr iritegration was
essential if the T e r r i t o ~wcre i o share fully in the ndvanced leclmical and
adminisirarivt. services South Afriça could provide.
{f ) South West Africa was economically dependent un Souih Africa, not only
for financial assistance and ihe sribsidization of its economic life, but also
as a frcc rnarkei ror i i j agricultiiral produce.
!&) Tlieuncei-tainty as to the polirical future of theTcrritory inevitablyrnilitated
against raciaI tranquillity and rhe opiitnutn development or the Territory.
33. In vicw tif thc ubove considerations the South African Governnirnt çon-
sidered ihat the CieneraI P,ssenibly ought to endorse thc proposa1 for incor-
poration. The General Asccrnbly, however, r e j ~ t e d(in resoIution 65 (1)) the
projmsal on thc ground "ihat the African inhabifrinls or South Wcsi Afnca
have not yet secured political autonomy or reached a stagc of political dcvelop
ment enabling rtiem t o express a cr~nsideredopinion which the Assembly muld
recognizc on such an inipunrint quesiion as incorporation of t hcir Lerritory",
and recoinrncndcd ihat So?ith West Africa he placcd undtr the international
trusieeship system of the I!nilcd Naiions =.
In rcjccting thc proposiil for incorporation on this ground the General
Assembly reflected oii only one aspect of the factors favouriny incorporation,
namely the expressed wishcs of thc populaiiun, and reniained silent nn al[ the
others.
In the view of the South African Ciovernment thc othcr factors, cspeciaily
those relating to the interes~sof ihc inhabitanis, wei-eof importance and shou1d
havc k c n given weiglit in the Gencral Aswmbly's consideratinn of the proposal,
particularly if there were d-riuhtsas t o the ability of the popiiIation to express
themselves.
Frorn the fact that the (jenerül Assembly did not, in its rcsnlution 65 (11,
rdect on rhcse Pictors at all, couplcd with the nature of the disctissions in the
Fourth Chmniitfcc, thc Scuth African Govemment fcl t justitied in infcrring
ihai ihere were otlier reasiins which had motjvated the approach of at Ieast
some Members of the Unitxi Nations to thc proposa1 for incorporarion.
The tone of ihc statcmcnts iiiade in the Fourth Cornmiltee and ihc General
U N doc. A/i23.
GA rcsolution 65 (I), 14 Dec. 1946, in UN doc. A/G4iAdd, 1, p. 123.
Assenihly hy somc dclcgüiions wiis regarded as an indicatioi~that political
rnotivatioiis, unrelaied and cvcn detrimenta1 to rhe inisresrs of Ihc inhabitants
of South \Vcst Africa, woiild be an inherent eIerncnt in an): suyiervisory systeni
under the Iinited Nations. This, in the view of the South Arrican Goverrinient.
would yrciitly harnper iis task iii administering the Territory; and as South
Africa hricl assumed a "sacred friist" in respect of thc inttabitanrs, i t had in
ariy event to he mindful of thcir cxprcssed wishes aiid thcir in~erests.
34. In response to the General Assen-ibly's invitation "to propose for the
consideration of the General Açsernbly a trusteeship agreement I'', the South
African Governrnenr znnwquently rcplicd by Ietter (of 23 July 1947) tu the
Sccrctary-~Scnerul.jttler «Cirz, as foIlowe:
"The Union Governrnent dcsirc to reilerirte iheir vicw thüi ir is irriplicit
in thc niündü~csystern arid in tlie mandate for South M'est Africa chat duc
regart1 shall he h ü d to thc wishes of the inhabitants in the administrarion
or the Terrilory. The wish clearly cnprcsscc-cdby the ovcrwhclrninp rnajority
of ail thc nativc rüccs in South West Africa and by unanimous vote on the
part of the European representatives of the Territory Ilizrt South West
Aîrica be incorporated in the Lnion therelùre debürs ihc Union Govern-
mcnt from acting in accordance with the rcsolution of the Cienerril Asscnl-
bIy. and thereby flouting the wishes or rhose who under the Mandate have
becn ~;ornrniliedto their charge. In thc circurnslances t hc Union Govcrn-
ment have no altcrnativc but [ O iiiainiain the sfntus q u o and to cantiiiue
to adininister the territory in the spirit of the existing Mandate '."
In zhe sanie [elter the South African Govcrnrnent refcrrcd tu a rcsolulion
adapted by thc Housc of Asscmbly of the Cnion Parliü~iient,o n I 1 April 1947,
readirig as follorvs:
"Whereas in tcrnis of thc Treary of Ve~saillesfull power of legislation
and adtnitiistrafion was conferred on the L'nion of South Ar'rica in respect
of thc Territory o l South West Africa. siibject only io the rendering of
reports to the League of Nations; and
Wlicreas the I.t.rlb.ar uf vur rions hns siilcc ceosrd ro e-risr nmI wus not
mipoivcrcd b,v the provisions uJ-rire Treoty af Versaiii~sor of rlic Cowi~ntir
Y rifill~satid poivers iti regrird fo Sourlr West AJrirrl ta !hc
;ci ~ ~ O R . F ~ iPl s
Utiired,iikfiorrs Or~wiiizu/ion,or ro an^ other iiirrrr~arioiznlorgairizorion or
body, and (/id nar iii fact do so; and
Whereas the Union of South Africa Ilas not hy internationaI agreement
conwnted to surrerider tlte iights and powers so acquired. and has not
surrcndercd thesc by signing the Charter or thc Unired Nations Organiza-
tion and rernains in fuIl possession and excrcise thereuf; and
Whereas ihr civerwheIriiing inajority or boih the European and non-
Europeaii inhabitanis of South West AFrica havc expressed thcmsclvcs in
t'avour of the incorporation of Soulh West Africa hirh the Union of South
ATric;t;
Thcrefore this House is of opinion that thc Territory should be repre-
sented in the Parliamcnt of ihc L'riion as an integral portion rhcrco& and
reqrrejts the Covernment to iiitroduce Icgislaiion, after consulratinn with
the inhabirants of the Territory, providing for ils rcprcscniation in the
Unioit Parliaincnt. and that ihc Government shouId continue to render
' G A rc.;oliition 65 (1). 14 &ç. 1946, in U N dcic. Afi4iAdd. I, p. 123,

UN dix. Ai334. i n GA, OR,Second Sess.. Fourth Ctimrn., p. 135.
rcporis [ci the LniltJ Nalions Organiza~ion as it has done heretufore
under the Mandate '." i:Ttalics added.)
The letter al= referred to the fact ihat -'the Union Gowrnrritnt httvc alrcady
undertaken lu subrnit reporls on their administration for the information or
thc Unircd Nations", clcarly a rcfcrcncc to the ahove-quoted statenient by
Field-Mailihai Smuts 2.
35. In compliiince rvith an rindertakirig given by South Africa at the First
Session of the Gcncral Asscnibly in 1946, meetings u'ere held throughour South
Wesr Africa durinç 1937 to acquaint rhe non-White irihabiiants with the
Gcncral Asscnibly's rcwlulion 65 (0. These trieetingr, showed that the over-
whelnling inajority were still in fa\lour of incorporatjon. I.ikewiçe, the South
West Africa Le~islativeAs;emhly o n 7 May 1947 unanimuusly adopted a
furrher msoLuiion urging incorporation.
The wishes of the people cd Soiith Wcsr Africa were again communicared io
rhe United Kations in a special report -3, and werc furlhcr claboraicd on by the
South African rcprcscntativc- in thc Fourth Corninittee on 25 Septeinber 1947.
Ife intimated that Soutli Af~ica:
Would not prmccd rvith thc incorporiition of South West Africa;
Would consider itself under no legal oliligation to propose a triistecship
ayreerrient for the T~errilory:
Could not further ignore i hc wishcs of thc g r a t rnajority of the inhabitaiits
of South West Africa w l ~ oiavoüred incorporation, by placing the Territory
iindtr the trustetship systern; and
Would continue tr, niaintiiin thc status quo, to adininister the Territory in
the spirit of the Mandate. arid t o trünsmit to the United Nations for its inTor-
nration an annita1 report on Ihe adminisiration of the Tcrritvry of South Wcst
Africa.
At the thirty-third meeting of the Coinn~itreeon 27 September 1947 in
respunse to a requcst by th;: representative of Dcnrnark for arnpIifimtion of
the South African proposal r-.garding maintcnanœ of t lie sfatus quo, the repre-
sentat ive oof the Uniori of Sozrth Africa explaiired t Itat:
". . . rke nntiitol rrpori ivhick h k Govei.nt>icnl rvi?u/dsul>iîiil on South W~.rr
Africu woulrl r<~niuitiikr, s m r type of iflfarnmrirrn rrn rhe T~rriinryu.r is
reljtrirpd for &on-SejflCi'or~rng Terri~ori~s ~rnclcrArticIe 73 (el of the
Clinrrer. It was ihe assumption of his Govcrnnient, he said, that rhe report
wouId not be cunsidered by the 'rrusteeship Coiincil and would not be
dealt wjth as if a trustcrship agreement had in fact bccn conclud~d.Hc
Further explaincd that, since thc Lcaguc of Nations Iiad ceased to exist,
rhe right t o subniit petitions could no Longer be enercised, since ilrut righ!
presrpposcs a jttrisdicrioiz whicf~wuiifd oniv csisl wherc rhcrc is a right of
conlrol or supervision, and in the virw o/fJzc Utiioii oJ~ouclrAfrica no snch
jitrisdicfiuti is vestecl itz rhe Ut~ftedNtt/fof~swifh r ~ p ~ r10d South West
Africa 4." (Italics addcd.)
36. In Novernher 1947. the South r2friçanrcprewntativc dcalt in the Gcneril
Assernbly with the question of an alleged inoral obliwiion tn suhmit a t h t e e -
' Ihiti., p. 134.

Vide para. 3 1 , .rirprzi.
-' U N d w . A/334/r\dd. 1, in GA. OR.Sccond Sess., Fourtli Comrn., pp. 136-1 38.
U N doc. , 4 0 2 2 , i n G.4, 017,Sccond Sess., Plenary Meetings. Vol. 11.
p. 1538.
ship agm3ne~-a contention based, firstly,on the facr that a11 other rnandated
territnriei had bccn placcd undcr thc lrustwship systern or tiad becn oIlcreJ
independence, and secondIy, on 1-esolütions of the General Asseinbly of 9 Feli-
'
ruary aiid 14 December 1946. He again stress& the many and niaterial
respects in which Soitfh Wcst Africa diffcrcd from othcr mandaicd tcrritorics,
and empnasizd that South Africa would he acting in dcfrünce of the wishes
of the vz.st majoril y of the ,inhabitants if n trusteeship agreement were con-
cluded. He addcd that, whcrcas thc rcsolution of 9 Fcbruary 1946 convcycd
an iiii.irriiiun, and that of 14 Deceniher 1946 a rerort~nienrlario17.that a trustee-
ship agreemeni be subriiitted in respect of Soiith Wesr Africa, his Government
had "coriscicntiously pcrfomcd" its duty in giving "mus1 iinxious considcr-
ation" to the recoiiiniendation, but couId not accede thereto 3.
At thc same iime he inrormed rhe General Assetnbly t hat-
". . . the Union of Soutli Africa has expi-essed i t s readiness to submit
anniral reports fur lhe information of lhc United Narions. That under-
takiiig standq. Atthough these reports, if iiccepted. will l x rcndcrcd on the
bnsi? rhar the Uilited ,%'utiolis-hlzs no superv~suryjririsdiciiotr in respee! of
t k i . ~'errilory thcy will servc to keep the Unircd Nations informed in rnuch
rhe c.arne way as they wilI be kept informed in relation to Non-SeIf-Ciov-
'
crning Territutics under Article 73(e) of the Charter '." ([talics tidded.)
37. P s p i t e the above, the General AssernbIy adopted a resolurion rnain-
taining i t s previous recommendation that South West Africa he pIaced ünder
the trustr%ship~~~sten:ni and urginy Soulit Africa to propose L'or the consideration
of the Grneral AsscmbIy a triistccship agreement for the Territory, rnotivating
its reçolution in the following terrns:
"\Vhereas ir is a fact that al[ other States administering terrilories pre-
viously heId under mandate have placed these rerrirories under the ï'rustcc-
ship systcm or oircrcd thcm i n d c p e n d c n ~3."~
At the Third Session of the Generai Asseinbly in 1948 the Souih Arrican
representative fornially reiterated-
". . . that tlie Iloion Goveminent, after full consideration of al1 thc aspects
of the rnatrer. hüd once again corne to the conclusion rhat it would he in
thc intcrcsts neither of the Tcrritary of South Wcst Africa and ils people,
ilor af the Union and its peopIe, to place the Territory undcr the aiiihority
of tF.e Trusteeship Coiincil of the Lniied Nations, and that. in the circ~lrn-
stanw, Ihe Govcmmcni rcyrctted not being able to comply with the
requcst of the United Nations Assernbly to submit, voluntariIy a trustee-
ship agreement &".
38. In cvmpliancc with its mrlicr voluntarj- undcriaking. the South African
Govemment submitted in September 1947 a report on Soiith Wesi Af'rica for
the year 1946.
G A rcsolution XI cl), in U N doc. A!64, p. 13.

CiA rcsolution 65 (1).
GA, OH,Second SCSS., Vol. 1, 105th Plcnary Mccting, 1 N i i v . 1947, pp. 632
et sey.
' Ihiul. p. 632.
G A rewlution 141 (11). 1 Xov. 1947, in UN dm. A1519, p. 47.
GA, OB. Third Sess., Part 1, Fourtli Cornni., 76tli Meeting, Y Nov. 1948, p. 292.
WR[T?ES STATEMENT {JP sou-1-HAFHICA 62 1
'This report was submi ttctl o n the baçis clearly siared in the said undertaking,
namei y :
( r i j tliat it wouId Ix foi- iri<orriiatjonpurposes only, cnntaining the saine type
of information on the Tcrritory as rcquircd for Non-Self-Gouerning Terri-
torics undcr Art~cIc73 (cl of the Cbarter; and
(b) that South Africa did iiot recogni7e the llnited Nations a s~ipervisory
auihority in respect of thc Tcrrilop-the reports ~iotk i n g intended for
use hy the United h'iitivns as if the latter were the supcrvisory autharity or
as if a Trusteeship agrt-cment had in f x t been entered inio.
After receipt of this repoct, thc Gcncral Asscrnbly authurigd-
". . . lhe Trusteeship Cuuncil in the mcantime to examiw the rcpori on
South West Africa . . . and to submit its observations thereon to the
General Assernbiy l".
Sorith Africa declined ar* invitation by the Trusteeship Council to send a
rcpresenlative to attend its rxarnjnatian of thc rcport since such action woulù
not have k e n consistent w i t h iis vieiv that the Couitcil was not vested with
supcrvisory functions in respect of Soiith West M'ria.
The South Africin Gove~nrnent, hriwever, offercd to transmit furthcr idor-
niaiion in writing if roquestcd to do so. In response ro such a request, further
information was subrnitted; and in a covering leiter of 31 May 1948 the South
African Goverriment, iiztcr ~ ~ i ireitera~ed:
u,
". . . t hat ihc [ransmiçs~onto the Unitcd Nations of information on South-
West Africa, in the form of an annual report or any other form. is on n
voltrn~ur~v h s i s u~zdi.~for purpuses uf infurtmrioti on1,v. They hu Pe on severnl
occasio~ariiaJe it ctet~rrhnr ~ h e yr ~ c o g i i i zno
~ ahiigc1rio1i ru frcrnsn~it ihis
irrforinaiioi~to the L'iiirt:d N~~ioris, but in vicw of the wide-sprcrid interest
in rhe administration 31' the Territory, and iri accordance with normal
dernocratic practice, thcy arc willing and anxious to make availa ble to the
wcrrld such facts and figures as are readily at thcir disposil . . .The Union
Governinent desire tri itcall that in offering to submit a report on South
West Africa for ihc information of the United Nations, thcy did so on the
hasis of the provisions of Article 73 le) of thc icartcr. This ArticIe calls
For 'statistica1 and othcr information of a teclmical nature' and makes no
refercncc to infomatioii on questions of policy. In these circumiances the
Unioii Gove~nmenrdo no1 consider t h t information on rnatters of poIicy,
particularly future policy, should be inciuded in a report {or in any
supplenient to thc rcport) which is intended to bc a factual and statistical
-
account of the adininistxlion of the Territory over the pcriod of a caIendar
year. NevertheIess, the Union Govcmmcnt are anxious 10 Iie as helpfril
and as CO-operative a!; possible and have, thercfore, on thiv occasion
replied in full to tlie questions rlealing with variaus aspccts of policy. The
Union Govemment do not, however, rcgard this as creating a precedent.
Furîherrnorc, the rcnderingof replies on poIicy shouId not bc consrrued as
a cornmitinent as ta future pdicy or as i m p b i ~ gany meirsrire .of nccoiiaf-
nbiiif-v #O rlie United .N~!iioiison rhe prrrr of the Utifon Goverriment. In t his
ccinnection the Union Ciovcrnnieni have noted that their declmd intention
to administer the Territory in the spirit of the rnandatc kas b e n conslrucd
in some quarters as implq'ing a measurc of international ;iccoiinraliili ty.
GA rcsolution 141 (II).

rnaticn kas providd an opportunity tri utilize the-ïrusreeship CounçiI and
the 'IIuaeeship Corninittee as a foruin For unjusiified criticism and censure
of the Union Government's administration no1 oiily in Souih Wcsi
Africii but in the Union as well. Inferences and dduçtions have boen
drawri frorn the informaiion siibmitted which are quite incrinsistent with
facts and realiries. The rnisundcrshndings and accusations to which the
Lnitcd Nations d~scussions of this suhject have givcn rise have had
relien:üssions both in the Union and in South West Africa, with dele-
rerio1.s elkcts on lhc maintenan= of the harrnonious relations which have
hithei,to cxistcd and are sn essential to successfiil administration. Further-
more, the very act ol subrtiiitinp a report has crcated in the minds of a
numbcr of Members of the United Nations an iinprcssion thal thc Trustuc-
ship Chuncil is competent to make recommendaliuns on niatters of internai
adrniriistriition of South Wcst Africa and kas fostered other niisconceptions
rcgürding the status of this 'Ièrritory.
In these circunislances the Union Government can no Longer see that
any r i ~ bcnefit
l is to bc derived from the suhmission o l special reports on
South West Africa to the United Naiions, and Iiave regretfully corne to the
conclusion that in the intcresis of eficient administration no furthet
rcpor:s should be fnrwarded. ln coming to rhis decision the Union Govcrn-
ment are in iio way rriotiviitcd by a dcsirc to ~vithhotdfrom the world
facrual and orher infurmarion rcgarding South Wesl AIfica published in
a c c u r ~ ~ n cwith
c the custnmary practice of dernucratic rat ions, and
infortnation of this nature previously ~ ~ n h o d i eind annual reports to the
1-eagrre af Nations or the Unitcd Nations \rfill continue to be itiade ai-iiabfe
tu ihc gcncral public in the fornl of sratistia. departmenta[ reports,
reports by the Adrninistrator to the Souih Wesi African Legislaturc, bluc
books, and olher governmental publications '."
At ttie Fourlh Session of the General Assembly in Septtmkr 1949. the
South African represeiitative (wjfh rerercncc to the aforesaid letter) daLt fulIy
wirh the South African deçision to discontinüe the ~ubmissionof reports *.
4 1 . h ihc prcwding parsgraphs attention was given more parficu1ürIy to the
South African attitude concerning thc qucat ion wheiher the supcrvisory
poviers of the League had been transfcrred to the United Nalions in respct of
rtiandatcd tcrritorics not placed under the trusteeship system. Ir is however
relevant ici have regard also to Ihc attitudes cxprcsscd by orher Members OF thc
United Nations on rhis question. ln order to facilitate an accurate review of the
aititudm of Cnitcd Nations Members in this respect. an Annex, marked A , is
attached hereto, the First Part of which conipriscs sin index tri statements
made by the representarivcs of a11 the States which participattd in debates on
South Wcst Africa over rt~eyeari 1947, 1948 and 1949, and tlie Second Parr
of which contains extracts from staienients made hy reprewntatives of certain
States over the said years 3. Both parts Iist the States in iilphabciiciil order.
Thc following paragraphs contain what is submittcd to be the sigrtifkant
aspects emergiiig from Ihe contcnts of Annex A.
42. (O) As reflecred in the Fit-st Part of Aniiex A, ihc rcprcsentat ives of 41
' U N doc. Aj929, in GA, OR, Çourth Ses.. Fourth Comm.. Annex. p . 7.
GA. OR, Foirrth Srss.. Fourth Comni., 128th Mccting, 18 Vov. I949, p. 200.
The South Rfrican prtipusal rcgarding incorpi>rrttionof South West Africa kvas
rejected by the resolution of the Gencral Asscrnbly on L4 Dec. 1946. Dcbatcs rcgdrrl-
jng the quesrion of accoiiotability under the Miindate, as a rcsult of the inçcirpcira-
tion proposal, starred in 1947.
France. India, Iraq, the NetlierIands, New zealand. I'akistan, the Philippine
Republic, the Suvie1 Lnion, the Utiiled Sturcs of Amcrica and Uruguay.
Extracts from the statements made by rcpresentatives of these 14 Staleç are
quoted in ihe Second Part of Annex .4.
Tt is not necesun, to recite al1 such cxtrscts. The folIowing are indicaiive of
the tenor of the statenients niade:
M r . G r r k , rrprrsrntlrrive of fhc Unitrd Sta!c.s-of Ai~trricu.in the Tritsrsesliip
Couricii oii I2 Dccwiber 1947:
"lt wus s(;iriJ fier^ carlier this afrernaon, and iriirt iiot hear urry inoribcr.
objeci, thüt while we al1 hapl-rny dclcgaiion as much as any delegarion
feels rhat way-that there wiIL be a trusteesliip agreeiiient for this ierri~ury
[Suutli Wcst Africaj, ii7:do nor. M thr nbstwcp qf a rrusf~esliipngrecr)icirr,
bave s i i p ~ r v i s o rfirilctioms
,~ over ihis territocp. Thcrcfurc, 1 do nat ihink we
oughr to impIy that we do have suprvisory functions t o ensure lhat ihc
Unio11 Govcrnnicnt discharges its dutics undcr the prcscnt mandate,
adrnitting that it exists." (Italics added.)
"'Ilte mandates sysiem now ducs not operate. As there is no longer a

superking aut horily. t hcrc i s no longer a mandaies systern. The voluntary
transmission of information, rnerely for thc sükc of information, by the
Uniort of South Africa to the Trustccship Councjl does i~otgive the COUIIC~I
the ss.me jurisdict ion as the Permanent Conimission on Maridales had.
. . . wr: consider that the prewrii situation constitutcs ü stcp hckward, in
so far as n ~crriroryniire ut~dcritircri!ationn/ sicperi.isioti is now utider. tio
sriperi~rtemfmct.. . ." (Italics adrled.)
" Wherros the lterritory of South West Afriw, though no1 sclfguvcrning,
Îs ar prt.wni orruide I I ~ P~ ~ n l r m
f f~f dsupci-vi,riort of the Unitcd .Mririorrs."
(Italics added.)
'The statements oti bchaIf of l'akistan and (:hina were eqiraIly expl icit, arid
those on behaIf of Australia also very clear on the point. In other cases thc
aiiitudccnicrgcd by nccmsary implicat~on.Thus the represen tativesofColoinbia.
Iraq, the Soviet Uniuri and Uruguay, consiciered that the Mandate Iiad Iapsed
altogelher--frum which wouId follow ihat thcri: wuld bc no duty of rcpurting
and accouiiting with regard i o mandate obligations. And in the cases of France,
New Zealaiid, Cuba and the PhiIippine Hepublic the sratements were to the
effect thar the informaiion in fact subinitted by Souih Africa couId lx exarriiried
for infurmation purposes only. or not ar al[.
43. During the years 1948 and 1949, in debates on South West Africa, similar
views weri: exprestd also on behall' or ai leasi four o!her Stales. They Nacre
',
Canada l. Costa Rica Greece l , and thc United Kingdom '.
With a view to curtailr~ienlor rhe record, the exiract from the staternent niadc
by the repi.esenrativt of Ihc lasr metiiioned Siate orily is recited heie.
Sir Tercrtr.0 Shoit~,itt the Fuurrh Commi!~euotr 24 ,Yirk*e:eniberIY4Y:
"Tt could noi he said that the Goveinment of the Uiiion of South Afi-ica
' Yidp Annev A,Second Pari.

should fullil its obligations towaids the international cornmunity and çiue an
accnunt ol' its administration "'.
In thc ciiscs of the ieast-mention4 three States, Cuba, India and Lruguay,
these contr:ntions ivere in connici with thc statcmcnts iiiade, or attitudes adop-
ted, hy thcm in 1947.
For thc carlier statement hy t h e representarivc of Cuba, sec Annex A, Second
l'art I
In Ihe case cif India, refcrcncc is made to paragrayh 42 ( J j , supra. Attention
is also drawn to the repart on Palestine, paragraph 44 ( c ) , supra, and to the
written sta teinent subniitted by Indiü in thc 1950 Advisory Proceedings, whiçh
containtd the following:
"It is rfipectfully submittcd that the only respect in which ifie position
haçdianged pas a result of the dissolution vf the League] is: that ArticIc 6 of
the Mandate and the first portion of Article 7 of the Mandate have becorne
incapiible of k i n g cornplicd with, In other respects, the righls and obliya-
tims of the mandatory are exactly the saine as they \vert. bcforc. Thc rcsult
is that the mandatory i s not obligtd iu submit an annual report under
ArticIe 6 and that ii mnnut rnodify the terna of the Mandate at aIL because
ihe pimedure by wliicli it could have tnodilid the tcrrns of thc Mandate
has ceased to be appIicabIe '."
And. in the case ouf Uruguay, the statcnient made hy its represeniative in 1948
runs coiinter to the contention advanced on its bçhalf in 1947 and to ils
attitude concerning the Mandate Tor Palestine '.
46. Also in resptxt of othcr rcrritriries previnusly held iinder Mandate, rhe
pralrticc uf Statcs up to 1948 shows a cIear understanding that thc Lnitcd Na-
tions ivould have rio supervisory powers over the administration of a matidated
territory riut piiicccd undcr trusteeship. Thus rhe trusteeship agreement for
Nauru was conctuded as late as Nvvernber 1947, i.c., morc t h n two years after
the Charter had corne into for~rj; and the United Kingdom withdrew frorri the
adlriinistration of Palestine onIy as from 1 5 Maq- 1948 ". Neverrhelcss n o rcports
were in the iiiiterim privd sribmitt~xllu the Unitcd Plations in respect of eirher
territory. The Soiilh Arrican Government is not aware that it \vas ever suggesled
by any Si;itc or organ of the United h'üt ions thai siich reports should bc sub-
mittcd either in respect or thcsc tcrriturics or iii respect of any other mandated
territnr~ejdiiring the period üfter dissolution of the Ixagrie and prior iu "new
arrai~gerrirnls"bcing "agrwd" upon in regard to thein.
E. The Effwt of rhe Events during the 'I'ransifiunai Y a r s
47. III Chaptcr VI1 above the concIusion rcached I tiür no mandatory
coiild, by reason only of its agreement in 1920 to rcport and iiccount to, and
thus to subrnit to the sirperrision of, the Council of the League of Katiairs,
suhsequently be field obligcd to report and account tci, and submit ro the super-
: Annex A . Secrind Pari.

I.C.J. PI<,adings. Inicrii<irinrial Storrrs qf'Soi,tlr Wcsi Afiicrr, p. 148.
As to which vide Annex A. Second Part.
As to which vide para. 44 ( c j , rirpru.
Vide GA, UR,Sccond Sess.. Sup. No. 10 (Al461/Rev. 1 ).
" Vide KK~CS~JIR'SCiirëtliporui.y Aicliiv~.r.r.Vol. VI1 ( t 948- I950), p. 9354.
vÏsion of, the Unitcd Nati.311~ut' any of' i i s organs. The cuir/eni of ihc latter
obligation ~ m u l dbe rnaierislly diflcrent, in substance as weH as in forril, from
tliat agrced to in 1920 by Ihe mandatories, and for this rearon donc it folIuws
that 3 mandatory could only have beçonie bound to such an obligrition by
frcsh cigmrnenr and conseitt thereio.
'I'he purpose of the rcvicw of relevant histnrical Fdcts in the earlier parrs uf
this chapter, was accordin!:ly l o serve as basis for an enquiry whethcr South
Alrica fiad, by any bindiiig juristic act, consenied to an obligation to report and
account to, and submit tu the supervision of,any argan of the Unired Kaiions.
48. Although the enquir,f as tlius posed esseiitiall y wncerirs SOLIth Africa's
conscnt to an obIigation as postulatcd, i t must of nw~ssitjralso have rekrence
to another aspect, viz.. wiI I whnm South AFrica agrwd to siibinit to suc11 ari
obligation if any. (The m a j ~ r i t yAdvjsory Opinion of 1950 d o s no1 exprcssly
rcfcr r t i tliis aspect of the question.)
11 seen-is evident that th(: international pcrsons. othcr than the mandatory,
who rvere intended to derivt: righls or Icgiil interests frvm the inandates wcrc the
Lcaguc of Nations and the Mcmkrs of the Lcagiie '. One wnuId therefore
prima racie expect the Leap~eandior its Members to he parties tri an agreerrient,
i T any, rendering a mandatory obligcd tu report and account to a new super-
visory ar~thority.And i f th;it iiew supervisory authoriiy wcrc to be an organ of
the Liiited Nations. it seenis that the United Nations, andior ils Members
wciiild irecessarily havive had to bc partics to such an agreemcni.
49. For al1 practical ptirposes the enquii'y is therefo1.c directed towards
ilscerlaining whether South Africa at any rime bound itself by agreement, cithcr
wiih thc Mernbers of the Lxague at the tiinc of its dissolution (directly or via
the League as rcprcscnting Iheiri), or with the Uiiited Nations arid,'or its Mem-
bers, or i v i t l i both these praiips, to an obligation as posl ulated. Such an agrcc-
l y been eithcr part and parccl of generrzf niul tipartite
ment çould c o n ~ ~ i v a b hide
conventinns concerning the ror~~~ation of tlie United Kations andjor the disso-
Iiiiion of the Ixague, o r y~c'cinlas bzlween Sntith Africa and thc icthhcn: who
couId conuiivably hiive b ~ -partics
n thcrcto as aforcstated.
if. The Unirrd surions C:hur~ri

50. Thcrc couId bc no warrant for ilny suggestioil that the provisions of the
Charter of the United Natisns by themselves rendered South Africa obligd to
the United Nations o r the athcr Mcmbcrs thcreof lo report arid accouni to, or
to bc subjccr tu thc supcrvi>ionof, any orgriil of the United Nations with regard
to perforniance of its functions iinder the Mandare €or South West Africn. In
[his respect there appears tu have bwn gcneral agreernerii in thc Advisoror?.
Opinivn of 1950. The rnnjc,rity opinion particularly emphasized that:
". . . the Charrer has contcmplatcd and rcgulaied only ü single sysiem, the
Internat ional Trustccship Systeni. It did not contemplate or regulate a
CO-existinpMandates :iysrcm "'.
The whole of the porrion o f ihe Opinion in wtiich this slatemcnr riccurred
{answci. to question ( hj ) wiis concuritd i i i by Judge McNair and ludge Kead
In tlie Suiifb FVrsr ~ifrict:cases, Judgnien~of 18 July 1966. lie majority and thc
niinoriiy srem to have liecn ud idem as Far as this broad proposition i s concerncd.
It~t~r.nationa/Stnrits ofS<'uili Wesl Afr /CO. Advisory Opitiion. 1.C.J . Kepov t s 1950,
p. t40. .
Ihid.. pp. 146 and 163 rcspr~tivcly.
"It has ho~ve\,erbccn saupht to cal1 it [Le., Article 80 CI)] in aid as
frillows: the Article, i r is said, 'conserved' the rights of States: onc of thc-se
rights wiiç that stated in Article 7 of the Mandntc instrument; thecefore
thc rights survived th-: Leaguc dissulution until the ieinandated tei-rirory
was brought under tru jtccship.
The argumcni is no:. only inherently unsound, it ignora the words o f
Article 80 (1). 'I'his A1,ticte is clcarly an inteipretation clause, çornmonly
caIlcd a saving clause, of a type frcquentIy to be round in Iegislative or
ri-eaty instrumen(s, desigried to preilent Statutc or Treaty provisions k i n g
iiirerprefrdsoas to operale bcyond their intendnient.
Such a clause does not, except in ü luose and quite indefinite sense,
'conserve' any rights. [t prcvents the operation of the Statute or TrcaIy
frurii afecting them (whatever thcy arc: und whatever their content) exœpt
as provideci by the Stafute or 'Treaty. Article 80 (1) does not maintain or
stabiIize rights as they :ycxistcdai the date of the Chartcr coniing into opera-
tion, nor does it insure the confinuancr of thoçe rights or increase or
diminish them. It Icave; thcm unirffected by Chaptcr XII of ihe Charter.
Whaf Article 80 (1) ducs not say is as irnporrant ar what it does say. Tt
diies nrit say thul right:-shalt continue. It daes not provide thaf these rights
shall not thereaftcr, until trustccship agreeineiits have bcen concludcd,
lx subjocl lu tlie operation of law, or that they shaII not terminate or
be extinguishcd by efiluxion of tirne. failure nf purpose, impo~sibiIity
or perforiiiance or for any other rcason. Tt does not ssiy these rrights shaIl
not bc aItered or k suklject to alteration even by normal Iegal prmsses.
It is evident that the purpose of Article 80 (1 1was quitc dilyrrent to what
has been contended and diies not lcnd itself by any rational niethud of
interpre~ationio support ihe contention a d v a n ~ ~ dThe . sole purpose of
the ~trticle\i;iis to prevent rrny provision of Chaptcr XII of the Charter
k i n g construed so as to aIter exisiing rightv prior toa certain eveni '."
In ihe oral proceedings on the Merits of the SoutIi WPSIAfrica cases, the
Applicants' counsel exprwed his regret for the incomplctenessof hi5 presenta-
tivn i i i the Prziiminary Objt:crions p h a x regarding Article 80, paragmph 1, and
cxprewly associnted himsell'with the a bove-quoted views of Judges Spender and
Fitzmauricc 2. Hc still added liowever: "The languagc of the Court [in the 1950
Opinio~i]might . . . imply a. differcnt vicw 3". This conession that the Court
mighl well have heen rnisrükcn in its interprelation of Article 80. paragraph 1,
in 1950 will bc further deaIt with when the 1950 Opinion is considered '.
52. These resoIutions and iheir history, üs dealt with abovc 5 , in the first
place clcüriy dcmonstra~e(3at the United Nations did not consider irself to bc
an auiomatic successor in Iriw to any Lpaguc functions, and consequcntly that
! Suurh W ' t ~ 1 Africa, Prtiitninary Ubjecriotis, Jrrrtb~inurr?,1.C.J. Reports 1962,

p. 5 16. footnotc 1. V i d ~ also ,lisscnting opiniun (if Judge van Wj0kiir pp. 61 5 er scq..
and separate opinion of Judl;e van Wyk in Souih West Afrira, .Yeconri Phclse, Judf
Ineirt, 1 . C . I . Reports 1966,PI).93-95.
1-T..!. Pleudiiig~.Soird 1Yesr Africu, Vol. VIII, pp. 223-226.
Ihid., p . 226.
Vide Lhap. lx. iirfia.
' Vide paras. G er seq., srqlrrr.
634 XAMIB14 (SOU-~HWEST ;\FRI<:A)
in its contmiplalion ~ h cassumptioii and continiiation of uny Lcüguc function

by i i would hüvc to he a matrer of active arrangement. Xndeed, in coiitrast wirh
assets, wli.icli were to be "triinsfcrrcd" in terins of the niiirually adopted
"ccininion plan '",the earlier idea of a "transter" of certain functions and
üctivitics xas ahandoned in iavour of one of "assuinption" by ihc Unitcd
Nations oi.gans of certain functions and pciwers '.
53. The sc:cçcind fcature of importarice is tkat in rcsoluiinn XIV as finalIy
adoptcd by the Cjenetrl Asse~nblyon 12 Fcbruary 1946 the slaterncnt of ',
to tnsurc thc continued exercise of teagiie functions was
generul n~iIIit~grzes.~-
'.
cartl'ully Iirnited tufiincrions of a noil-puiilictij t:izaractcr This ivouId obviously
not includc the function or supervision rcgarding mandates. The only portion
of the i.esolutioi~under wliich such function cciuld possihly M I would bc Pürt 1,
3, Ç, wtiidi read as follows:
"Ç. Fi'~tnctiutrsnltd Powcrs ~rndcr Treatirs, Iiirrriruiicinal Coniler~?io~ts,
Agreements rrnd Ofher itismrrneiiis Il(witg ri Pviirical Cliartlrrer
î h c G ~ ~ t f e r r ? j A ~ ~ . r ~\vil] t y examine, or wilf suhmit io r fie apprupriatç
i n bitself
organ of the United Nstions. iiny requesr from the parties that the United
Nations should assurne the exercise of functions or powers entrusted to the
1-eague of Nations by treaties, internaiiod conveniions. agrccmcnts and
other instrumciits having a politiwl charaçtcr 3."
In other words. foi the rusumption of a supervisory L'uncIion regarding
ntandateq rhe procedure envisaged by the resciIuiion would involve a "request
frorn thc psrties" to, or iegally intercsied in, the respective niandam. and a
decision occeditg IO tlre reyiiest by the Cieneral Assem bly or othtr United Nations
organ considered to bc the appropriate one.
54. However, even in so Par as the said Part 1. 3,C: of resoluiiori X I V supplied
a rnethod whereby i t miyht have been possible, at the initiative of the parties to
the mandates ihernseli~es, to effect an iissurnp~ion of sup.misory functions in
rcspcct of niandates by somc Uniicd Nations organ, i t is apparerit frotn i t s
history thii i t was no1 dcsigncd for this purposc at all-ai any rate as Br as its
proposes werc: concerned. For it wilI bc rccallcd thiit the resolutirin was based
on a rccoinmendation of ihe Unitcd Nations ISreparatory Coniniissiun, iuhich
in tum hnd considerrd a prior report froni its Gxecutivc Commiitec '. Thc
relevant portion of the Executive C o m r n i t t ~ ~Rcport
'~ had stated, hiter dia,
that-
"Sinm ihc question arisiiig from thc winding up of the Mandate systern
arc dcalt with in Part TEI, Chapter IV, n o recorniiiendaiion Uri Ihis subject
is included here "."
"I'art III, Chapier I V ' ' as there referred io formcd part of the history ieading
everituaIly to rcsolurion X f , adoptcd at the sarneSessionof theGenerai Asserribly
on 9 Fcbruary 1946. The said "Part III, (-3apierIV" uf the Exwutivc Cornmit-
tee's repoi-t dealt with thc esta blishitierit of thc trustccship systetn. It will k
recallçd that a recnrnmendarion rÿas made therein for ihe esiablishnienl of ci
tcmpoinry trusieeship comniiitee, one of whose f'unctionswould be ro:
A Vide para. 20, siipuli.

Part 1, para. 3, A and R tif the resolution.
Vide para. 20, supru.
Vidr paras. 7 and 8 , sripra.
Doc. FC/EX:'I 13:Kcv. 1, 12 No\,. t915, p. 1 Il).
". . . advise the GeneraI Assenibly on any rniitters that niight arise witli
regard to the transfer to thc Unitcd LIüiions of any functions and responsi-
tiiliries hit h ~ r t creicisr:d
o under the Mandates Systetn I".
5 5 . On iwo occasion^ witilt the proposal regarding a tempomry ti-usteeship
corninittce waç iinùer considcrütion, ihc prvblenis wliiçh woiild arise in respeci
or stipervision of niandate:; after dissolution of rht: League, ivcrc pcrt incntly
riiised. In apioposa1 to the Execuiive fomrnittee of the Preparatory Cuminissian,
dated 14 October 1915. tlic Unitcd Siiites delegat ion suggested lhat "following
the diszojution of the League of Nations and of the I'crmancnt Mandatcs
Commission, the funciiom :3reviously perfcirrned by the Mandates Commission
in coiineçtion wilh receiving and cxümining reports submitted by Mandatory
Powers with raîpect to such territories under mandate as have nat becn placcd
un& !he trusteesliip systerd by means of trusteeship agreetnents", shoutd first
be riiidcrtaken by the 'I'ernporary Trustcmhip Conimit toc. and, after estsbIish-
rncnt of the 'I'rusteeship Council, by the Council itself. This proposa1 was
apparently nevcrfomally r;iiseù ?.
On 4 I)ecerntier 1945 siib;tantiaIly the sitmc propusal wris agiin raiscd by the
United Slares delegaiion (although wiih SI igIit texiual changes) kfore the
I'reparatory Commission it:elf. acçompanied by an explanatory mcrriorarid~rm.
'
The rnerriorandum poinled riut that the-
". .. repori by the E>.ecutive Cornmirtee makes no provision for any
urwn or the Cnited Nations to carry out the funciions of the Permanent
Mandates Commission".
". . . in ordcr to provide a dcgrcc of continuity betwcen the Mandates

system and the trusiwship systeni. to permit the mandatory powcrs to
dischar~etheir obligations, and to furiher the t ransfér of mandated terri-
tories trusleeship, thc Tcrnpcirary Trusteeship Cornrniiree (or süch a
mmniittee as is cstablished to perform its funçt ions) and, iatcr, thc Trustce-
ship Cauncil should be s p e c i f i i a ~empowered
~~ to receive the reports which
thc mandatory powers are now obligcd to makc to the Fernianent Man-
dates Conimission".
1.ater in the ~iiemoraiidumthe purpoçe of this prriposaI was described as "to
bridge any possibIe gap which niight cxis~beiween the termination of the
mandates system and the esta bIishinent of the triisteeshiti system 3". Althouph
diily filed and p l a ~ don an qynda, this proposa1 was never fornially mowd or
discüssotl.
The significance of the t..vo United States proposais is that thcrcby it was
pertinenily drawn to the attention of the Preparatory Cornmission that no
machinery would exisr for the supervision of mandates after dissolution of
the League, and that such niachinery would only bc re-established if and when
a pariicular rnandated terri tory wert placed under iriisleesIiip. Nevert hetess
the Mernbcrs of rhe Preparatary Commission (cunsisting of al1 the then Mem-
bers of the Lnited Nations) were clearly not prcpared ra make any provision at
al1 Tor supervision of mandates, either by empowering sonie iriteriiii body, or
cvcn by aiithorising thc'lrusteeship Council ilself to uddertake it. In this connec-
-..
' &+id., p. 56.

Vide para. 9. ~ ~ i p u r i .
- Vide para, I l , supru.
tion the attitude of ihe Mandatory powers is aIso not w i ~ h o u tsignificancc. With
thcexceptioii of one stray commenr by thc South African rcprcscntative ',not one
of the mandatories shotved any wish tn create rnachinery for interirn super-
vision of rnandatcs pcnding the conclusion of trustccship agrwmenis or othcr
arrange1rit:nts ?.
The very recommendation regarding establishment of the Ternporary
Trusteeship Cunirnittzc. was rejecred by the Prcparaioiy Cqmrnission 3 : and nu
0 t h piopnsal regarding investigation of, or machinery for, the possible
"transfer io" oi' "assuniption by" the United Nations "of any functions and
responsibiIitics hithcrto çxercised under the rnandatcs systcrn", was substitutcd
for IIie rejected proposal. Resolurion XI as adopted in effcct rncrely urged
expoditior. in the submission of proposed trusteeship agreements hy "the States
administering tcrritvries now held under Mandatc 'O.
56. In ndopting resolution XI the Assemhly knew beforehand rhat such

proposcd agreements wouId not be submitted in respect of all mandated terri-
tories. Ex[iress rcscrvafions kad bern rriade by thc South African citprcsentaiivc:
indicating an intention on the part of his Government to refrain from placing
South Wcsl AFrica irnder United Nations triisteeship and t o seek recognition
for incorliriratiun thereuf in thc Union >. Frani rexn-ations madc by thc
rcprcsenis.tiveo f the United Kingdom, the future of the Pafestine Mandate w a
known to be uncertain 6. Furtherrnurc, the Pacific Blands under Japancse
Mandate #ere occupied by the United States m d no decision had been corne
tri as to thr:ir futurc.
in additioii, the reprcscntatives of the United Kingdom and France haù
indiçated that their Governments' willingness ro place certain mandated terri-
tories under Unitcd Nations ~rusttxshipdepcndcd upon Iheir beitig able to
obmin sat :sfactoryterms 6 .
57. T h ~ thet kssembly was in fact aware that a number of States adrninistcr-
ing rnand:itcs had no inlention ai that timc of subrni~tinglrusteeship agree-
ments, apgears indeed from the text of rcsolution XI, especially the fuIlowing:
". .. wiflr r ~ . i p e ct~n C'hoprfrs X / I nnd XII[ of rhe Chnrrer, rhe General
Asseti~biy:
3. Wclcotnc~thc declarations. made by certain Stutrs administering
terrirories now held under rnandatc, of an intention to ncgotiatc trustmhip
agrcrmenls in respwl o f suirre 01those ferrituries and, in respect of Trans-
jordan, to cstablish its independence.
4. tnriie.s the Srores administering territories now hcfd under mandate
to underiakc practical steps. . . for thc ir~iplernentationof Article 79 of
the Charter 7." {ltalics added Save for the heading and the words "Wel-
cornes" and "Invites".)
Vide para. 10, sirpru. The runçt~onsuggestcd by hini Tor tlic Tcmporary Tru+
teesiiip Commiilee çlearly. did no1 indicate an>-contemplation thai any reports
concerning Soulh West .4frica would be submitted-vide Soiitfi We.st Africo, Second
Pi~nsr.Judgtti~nr,I.C.J. Rcyarts 1966, pp. 100-101 (Judge van Wyk); p. 345, Foot-
noic 1 ( J i i d g Jcssup).
Vide para. 1 3, supra.
Vid~paras. 1 2 and 14, srrpro.
' Vide para. 17, .supro.
' V i d ~para. 15, supru.
I/& para. 15, supru.
U S doc. Al64, p. 13 quored in para. 17, sripya.
WKi-TT€N STATEMEA'T OF SOUTH APRICA 637
I'hc rcfcrences to "ceriniir Sraies" and "sotrie of'those terriforics" in the firsi
part of the rcsolurion may pariially been inspired by the absence of Japan
(which was not a Mcmbeï OI the Uniied Nations, and not prcxnt at the
Aswrnbly) and Ihe case of rmnsjordan, tu which derence was made later in
the resolution. Neverrhelts; in view or the express rescrvations, int~rrrlia, by
South ATrim, the resalutioii must have k e n jntended to refer thcrcto as well.
ln addition, the invitation extended, in the sccond part of the resohtinn, fo
" t h Stuftis adminisicring" mandates, to submit trustcahip agreements,
suggcsts that the Generat Psscmbly 1-ealizcdfiil[ wcll lhat ihere was a class of
mandatorics which did noi fall under the "ccrtain Skties" which Iiad made
dwlarrttioiis. but which the ~3eneriilAsscmbly nevert heless hoped would submit
agreements . '
58. In al1 ihc circumtances, the silence on the part of the United Nalions in
regard io supervision of iwaridarory governmcnt is significant. Pts Mcmbcrs were
alare that time would elapse hefore the coming into eifect of the trusreeship
systtrn, and that therc was iio ccrtainty th[al[ rnandared territorics would end
up as trust territories (para;. 56 and 51, slipra). Ye?,despite the Unitcd States
initiative in this regard =, n+,attempt was inade to arrive at a general arrangc-
ment either for i ~ i f ~ r isupt:rvision
ni (aRer dissolution of thc Lcügue) regarding
mandatcd tcrriiories untii they should k û m c trust ierriiories, or for an? super-
vision at a11 in respect or niandaied territaries which might not becorne trust
territmies. 'The Lnitcd Nations made elaborate provision for thc "assumption"
vrccrlain 1,eague functions and powers, and for lransfer to it of League assets,
knowing, however, thst i t s restllution XIV in this regard was not designed for
supervisory functions in r.:spect of mandates (para. 54, supra). A speçific
proposa1 envisaging investiraiion and rocornrnendalion concerning possible
"trdnsfer" of "fiinciions . . . under the ~nandatcssysIem" was rejected and
norhing substitutcd for i t , and evcn more specific proposais urging United
Nations supervision in respect of mandatcs came io nothing. The infermm
seenis inescapabIc rhat the arnissions were deliberate. It is highly un1 i kely that
it wouId have been possiblr: tu achievc a generul arrangement appIiwbte to al1
rnmdated territories. in vie* of the widely varyin~circumstances pertaining to
them and the differing intentions of the mandatory Poriiers in regard t o their
fiilure-with the resu1t that the matter pcrforce had to tie left to specinl arrange-
ment, if any, tu be arrîved at in each particular casc.
59. IIowever that might k.thc contenls and history or rrsoluiions XI and
X I V dcarly show thar, at thc time of their aùopiion heing shortty prior 10
dissolution of the League of Nations:
(a) there had been no agreement, express or implied, betwecn South Airiça
and the Unitcd Niitio~tsandlor iis Members whcrcby South Africa con-
sented to United Natisns suprvision regarditig the performance of ils
functions under the Mandate;
( h ) the nnIy provision maile on the part of the United Natioris whereby Ç U C ~
agreement could possilnIy have camc üboui, if at all, N7asthat contained in
Part T, 3, C. of resolutioii XIV. envisaging a request therefor by thc intertsted
parties and agrccnient thereto by a Unired Nations organ; and
/c} in view of the repcated reservariorw made by South Africa the Members of
Vide Suurk West Africa, .Oreiimiriarj~Objpct ions, Jltdggiiienr. 1.C.J. Kcporrts 1962,
pp. 537-538 (joint dissrntinj: opinitin <if Judges SI^ i'crcrcy Spender and Sir Gcrald
Fit7mauric~).
Vide paru. 55, .SiiprU.
638 S A M I B [ A (SOUTH WEST AFRICA)
thc Lniied Narions must hüvc rcalizcd that thc prospects of South Africa
being n Party to such a special request were reinote '.
1 Iii.~agueof~VatiorisResoluf iotts durit~pLlisr Session of 11s Assemhly,
H io 18 April 1946
60. Thc tcxts of thc rclcvant rcsolutions thar wcrc adopted by the League
Aswrnbty on i8 ApriI 1946 areset out above '.
Ar wiIl appear from the prearnbIe of ihe resolution retaiing to assurnption
by thc Ur~~tcd
"
Nations of Lcaguc functions and powcrs arising out of inter-
national agreements [the Assenlbly of the k g u e had "considered" Ihe bnitcd
Kat ions Cicneral AssembIy resolution XIV aT 12 Fcbrtiary 1846 on the same
"
subjcct 4. 'The Lcagite rcciolutian in question, as did ihe one foIloiving upon it
and set out above sspcificaIlyconfineci itself to functions. powers and aciiviiics
o l a riotr-,?uii~icuicharocter, and contained provisions designeci to fricil itate
assumption of such funciinns, powers and activities by rhe Gniied Nat ions in
terms of its resoluiiun XI\/; ii rcmained silcnl in rcgard to functions and powers
arising out of intemational agreements of a polirirrzi cliaracter, as dwlt with
Ïn Part f, 3, Ç. of the United Narions resoliition XIV. The inference secms
clwr thai thc Lcague AsscrnbIy considcrcd that thar was a mattcr in regard ta
which it had no role to play, and ir~hichwas to be left to the LIJho<:treatnieni
envisaged hy ]lari I, 3 , C:, or Cnifed Nations resolulion XIV. In orher words,
the Leagut Asscmbly clcarly kncw that thc United Nations wishcd each case
involving political functions to he derrlt with separately, hy way of a request by
the interwted parties to the United Nations and consideralion thereof by rhe
Uniied Niiiions General Assembly or othcr appropriatc organ; and if it con-
templated or inicnricd trmsfer of such functioiis to the United Nations in any
rither manner, i r could be expected to have sairl so.
SI. Thij was exactly what had bccn contcmplatcd in ihc firsf draft proposül
by China c o n c ~ n i n gmandates 6. 'I'hc second parügraph of the drüft invitcd
the Leagu: Assem bly to express the view that "the 1-eague's Cunction of super-
vising maridated ierrirories should lx rriiiisferrcd to the Uninjtcd Nations in order
io avoid a period of iritprrcgniim in rhe supervision of the mandatory régime".
'Ihe third paragi'aph ini*iiedit ro recornmend srib~nisxionof annuui reports 6 y
the nrrltzdfarories ru rhe Uni!cd It'nriotzs until the 'Tru~tccshipCouncil shouId bc
constituted. Here, tllen, was a proposa[ invuIving a course of action diiTering
frtim that contempIated in Parr I , 3 , C, of the t'nited Nalions General Assenibly
resolutivn XIV: instcüd of sepnrore cnn~iderationby Ciniied Nations organs of
scpornre requests froni parties interested in privticuhr itiaridc~res,the proposai
envisaged transkr to the United Nations of c~ipervisoryfunctions in resptyr
' I i is ti, be noted thai the discussion of the events duriny the frirmaricin of rhe
United Nations and the carly mcinths of i t s cxisience in the dissenting opinion of
Judgc Jessup i n 1966. pp. 341 -347. was nrii directcd ioward controvçrting the con-
clusions drawn hereiri. I t is acçor<iingly apparent that nothing sratçd there disiurh
t hc conclusion that ihe hlernbrrs or the Eniiçd Naiirrns de11herately rel'rained from
niilking aoy provision for the supervision OC mandared ierritories othcrwisc than by
tlie conclusion OF trusrccship agrccmcnrs. For a furthcr discussion of this part <if Ihç
said dissenting cipinicin. ride Chap. 1X. part. 66, itifua.
Yidc. paras. 23-26, supra.
V i d ~para. 24. sriprrr.
The I .eague rcsolution erroiieously refers to the date as 16 February 1946.
Vide para. 25, suprn.
V i r l r . para. 26 ( c j , sripm.
WRITTES STATEMEYT OF SOIITII AFKlCA 639
of nfi niundriied rerrirories and subinission to the United Nations of reports by
nli niandotories..
62. It seerns quite cIear that such a proposal could not have otitained the
unanirtious siipport rcquircd for a Leag~ieAsscmbIy resoltition. Hy rcason of
the reservation staied by South Arrica in regard to South Wcst Africa-heing.
in efkct, that iieitl-icr a rn:indates systcni nor a trusteeship systern should in
futui-e apply to rhe Terriro~,- -tIie Union could not support rhc origiwai Chinese
'.
proposal Nor docs it sccrri ihat that proposal could have received ihe support
of thc United Kingdo~n.rvhicti, in terms of the staicrncni by its reprcscntative,
reserved i t s future intentions in rcgard to Palestine ?. I-'urtherrnorc, the reserva-
tion by its representativc of Egypt was tu the e f k t that mandates would, in
-
his Govcrnmcnt's vieu,. terininate with the dissolut ion of thc Lcünue. and that
PaIestine must in any event bc considered to have outgrown thc necd for hejng
-
eoverned under mandatc o!.trusteeshit, 3: fh~lsil aIsa seerns mosr unlikdv ihai
Egypt could have supported the original Chinew proposai.
63. In the Iight of the absve considcraiions; the significance of the fact that
the original Chinese draft uüs dropped after informal discussions and replaced
by an agrccd drdft, which was lhen unanirnausly adoptcd, is self-cvident. Il
wil l be obxrved that in pariigriiph 3 of the resoliition, as adoptcd 4 , the Aswm-
bly "recognizes" thar on dis:;oiiitioii of the Lcaguc iis functiorrs with respect to
mandated tcrri~oriesiviI1 crime to an end, and i t "notes" the icxxisience in the
Charter of the United Nations of p r i n c i p l ~"~orrespondingto" thuse of Article
22 of thc Ixagtie Cyovenant: but it says nothing in rcgard to transfcr to ihe
United Nations of the League's runctions with respcct to mandütcs, or of
sssutnptioii or continuariori of sitch fiinc~ionby the Lnited' Kations. ln para-
graph 4 it expresses a contemplarion of "othcr arrangements" that may be
"agrced bctrvccn lhe United Nations and ~ h rmpecrivc e miindatory powers";
and as regards the ilr~critnpt:riod, pending s~tchaweerncrit iipon "other arrange-
~ncnts",i t "rnkras nuole" o f the ''e~prprrssrrl iti/errlioris" of those powcrs Io çoii-
iinue-
". . . to ndtilliinisrrr [ t h : territcirit%]Kor the well-being and developmenr of
r lie peoples concetned in accardanw with thc obligations contained in the
respectiw Mandates. . ."'. (Italicsadded.)
Iii al1 the circumstanms. the only inference ihat can bc drawn is that the
omissions in the adopted i esolutioii, as compared wiih the originui Chinese
draft, rverc intcntionai. The author of rhar draft had also cnvisaged ü n iirlerirn
periud. descrihed by Dr. Liiing on 9 April 1946, as foIlows: ". . . in view of the
facr thal rhe trcisteeshipcriuncil of iheLliiited Nations had noi yer heenappointed
and kvas not likcly Io bç set up for some tirne"'. and dcscribcd in the last
paragrapli of the drafr itself a< "until thc Trustwship Council sliall have bccn
çonsIiIuted :". 11 was spwrifically in res-pct of this intcrim per~odthai ille authnr
of the original draft wished "to avoid a period of iniorernitni in ihe supervision
or ilie inandatory régime "'; and conscqücntly invited the Asscmbly (i) tu
express lhe view "that the League's functioiis of supcrvising mandateci terri-
Vide i c x t ciT siattment in para. 26 ( h ) (id. siigra.

Vide para. 26 (b) (if,sig,rrr.
Vide para. 26 ( e l . sitpru.
Vide ieitt in para. 26 (f;'.supi-u.
' L. o f N . . O , J . . Spcc. Sup., No. t94, p. 5 8 ; para. 26 ( f j , sirpuri.
* ibid..p. 75; para. 26 { c l , supra.
1.of N . , 2lst Assrrnhly, I st Cun-im.. 2nd Meeting, provisional record; para.
26 ( c j . rupra.
WRITTI=.NSTATFME~TOF S O ~ AFRICA
H 641
66. The above condusions arc further co~ifirnredby the Fact rha r nonc or Oie
"expressed intentions" of ~iiündatoryStates rrferred to in paragaph 4 of the
resoltltion, includd an intmtion to report under thcir Maridates to the United
Nations pendiiig such "other arrangements": they u7ercconfined fo administra-
tioti of the icrritorjes in acmrdance with obligations regarding protection and
promoiion of the icll-kirtg and developrnent of thc inhubiiants, and certain
of the stütcmerits cIearly suggested that thcre ivoiild be no such repnrting
pcnditig the '+otherarrangcntent s". Tlius:
{ri) 'Thc siaienient of the South Africrin rcpresen tative pointedly referred to
the "disappearance oc ihosç organs of the League concerned with tlie
s~ipervirionof mandates, primarily ihe Mandates Commission and the
1-eague Council L". as :;onlething which woul J "necessarily preclude mm-
pletecolnpliance with the Icttcr of ihe Mandate $"; and inimediatel y before,
he had stated an intcrition of continucd administration by the t'nion in
accordance with the ol>iigations of the Mandate, for the advancernent and
promotion of the inteiests of ihe inhabitanis, "as she has dane during the
past six years when nicctings of the Mandates Coniniission corrld not be
hefdl" {and when reports were in fact not rcnderd).
(bj The Australian rcprcçr:ntativc alsu s-ied, Nrrcr dia, that-
"-4rier the dissolution of the Leaguc of Naiinns and ihe consequent
liquidariori of the Pert.vancnr ?Munrfa~esConm~ission,i t will be itnpn.rsibie
ru conrinue the niandares sysierpi in its ejitirety '." (Italics added.)
He further intimateci that for thc Nifcrin~,pending trusteeship, he regar-
ded Chapitr X I of the Charter a5 k i n g applicable, including the Lirnited
obligation thcrcundcr <ive.,Article 73ru)) to supply to tlie IJnited Nations.
for information purposa, certain stiitis~icaland other information of a
technical nalure .' This neccssariIy excluded contemplatian uf the more
onerous obligation ul rcporting m d accounring as regards cornpliance
wiih substantive mandate obligations and ihiis submitting to supcrvisiori.
{c) The United Kingdoni's inicntion wrts expressed as king- -
" . . . io continue to iidntinister these territories in accordance with the
gefirralpri~~cipicsof' tt;e existing mandates "'. (ltalics added.)

An interesting Iight is cast on the rneaning intended to becoilveyed by
the italicixd words i i i the above quotation, by the report of the Spe-
cial Comnlitree on PaIestinc, cxtracts from which are quated abvve 4. One
pasi;age rends as folIuius:
"Following th<: Second World Wai, the establishment of the Uniied
Nations in 1945 and thc dissolution o l the 1-eaguc of Nations the follow-
ing year opened a new phase in the history of rhe niandarory réginie. TIie
mandatory Power, in the abscnçe of tlie League and i t s I'errnancnt Man-
dates Commission, had IIO irtrernationoI rni~hori~y IO n41ic.h ii niki~lsilhnti~
rcporrs wrcl generc;liv nccounr for t h e excrcisc or iis responsibilities in
accordance with rhc rerms of thc Mandate. Having thjf in niind, at-the
final sesion of the Li:ague Assernbly, rhr tifiiirif Kilsgdo~t~ i-epresriilniive
derlard ihal Palestine would be adminisfcrcd 'in accordance wirh the
' L. o f N . , O.J., Spec. Suri. No. 194. p. 3 3 ; para. 26 (bJ (iif. srtpra.
Ihid., p. 47; para. 26 (b; (vi), srrpra.
' Ihirl.. p. 28 ; para. 26 ( b , )(i), sripru.
' Ylne para. 44 { c j , supra.
70. The same picture ernerges froni the f i c w ~ ySeries of thc Unitcd Nations.
As prcviously noted. üiiy inlcrnationtl1 agrwnicnt {which includes a unilaierul
enpagenient wliich kas boen acceptcd) rcquircd registralion in terms or Article
107 or the Charter or Ariiclf- 111of the Cieneral Asscmbly rcgiiIations regardinfi
'.
registration of trcaties i n rcspcci of thosc activities and assets which wcrc
~ratiçferredfro~ntbc Leagua I O the United Nations. proper registwtion wa^s
cffeçred. No agreenient in respect of ihe transfer of superviwry funciions i n
respect of rnandatcs çan k friund in thc Tremy Series'. Again the only possiblc
inferenct: is ihat the Meiiitiers participaiirig in the activitics of the United
Nations in the early rnonths of its existcncc in 1845- 1916, which comprised in
the main the sanie St;itcs ivhich ~vcrcMcmbcrs or the Lvugur at ~ h cIinaI
session of the Assernbly in April 1946, did not considcr that a n y international
agrecmcni had b e n concluded during t his ~ransilionalperiod which eflected a
substitiition of supervisory organs in respecr of mandated tcrritorics not placcd
tindcr trusieeship.
7 1 . The evidence shows tltat subsequent cvcnts never led to any agreement
whereby Sourh AFrica was ;ender& obliged ro subrnit tu. thc supervision of
any Lnitcd Kations orwn.
{ r i ) "Other arangcmcnts", as conren-iplated hy the resolurion of' lhe 1st
League Assembly were nevege; "agreed upnn betwwn thc Unitcd Nations and
South Afriça. Thc Uniied Natioris w a ~not prepared to rigrec to an arrange-
ment wherehy recognition .~oiildbc given to incorporation of South West
Africa in the Union. not. to other gropnsals suhsequcntly madc 3. On ihc othcr
hand, South Africa. for th<: reasons explaincd above. was not prepared to
agree to trusteeship for the 'Ikrritory3. A n d rhere never was, in ierrns or Part 1,
3, C . OF Ihe United Nations GeneraI Assembly's rcsoiution XIV of 12 Fcbruary
1946, any "rcqucst frorn thc parlics", or ayrcement thereto by any Uiiited
Narions organ, as to "assunipt ion" by the llnited Nhr ions of siipenlisory func-
Lions rcgarding continüed rnnndalov adniinistrarion of the 'Ièrritory.
(Aj A sirrvey is given a b w e of thc history of ihe South African under-
takiiig, later withdrawn. to sribmit statistical and other information such as
mentioned in Article 73, paragraph ! e j , of the Charter. .Article 73 ( e l , whcre
j t applies as a marier of Law, does not involve an obligation to subrnit to
"supervision". The whde of Article 73 con~prisesa counterpart i n amplified
form of ArticIc 23 (5) of the J ~ a y u eCovenant, in respect of which. as indicatcd
above. no oohligation conceriting suyiervision applied '. The sutrie situation was
intended lu appty in Article 73 of ihe Charier: aiid it is to this end that para-
grriph ( c ) thereof ernphüsizcs that rhc transmission is tn he "for information
purpmes j".
I n tlie present case, iherc- was a purely vuiuiirnry ~rnctertakingtu Furnish
information "in accordance vith" or "on the b a i s of" Article 73 (el couplcd
with an express denial of li;ihiliry tn subrnit t n United Nirti~tlssupervision,
and with an understanding {.ha1 ihe inrorniation was not to bE dealt with as
a Vide para. 2s. .supulz.

Vidr para. 29. rirpuu.
Vide paras. 30 to 40.siipri..
Fide Cliap. VIL, para. 48, sliprci.
' Vide Hall, op. rir.. pp. 285-281,288-2813.
Vide paras. 3 i , 35 and 36, sttpuu.
644 N4?vliDlh (SOUTII WESJ' RFKICA)
'.
if a trustxship ayreemeiit had, in f x t , heen concluded Inasmuch as rhe
United Kations neirhcr awepted nur observed rhe condirions attached to thc
undertaking, in which circunistanws the undcrtaking waç withdrawn, tl~cre
was nevcr üny consetzsus (141 i&irt or agreenient, express or irnplied, even as
rtgards tlie furnishing of information in awordance with Article 73 !el. iiiuch
lcss as regards South Africa heing ohliged to subrnit lu supxvision by the
United Nations.
VI. Fracfice of'Srnies
72. D ~ r i n gthe years inlmcdiatcly aftcr esiablishmeni or the United Karions

and the ilissoIution of the League, the practice of States showcd a gc~icrül
understariding rhar the Lcague's suyicrvisory powcrs in respect o f mandates
had not bccn transferred to, or assuiried by, the United Nations.
As apliean above2, Sourh Africa expressed its attitude very clciirly both
before the Fourth Cornrnittcc and bfforc thc GcneraI Assernbly during the
perind Scptcmbcr Io November 1947, to the effect that South Africli was no1
obliged to conclude a trusrwhip agreement for Sorirh West Africa, and was
not preprircd to do so, and that in the abwnce of a trust~xshipagreenient,
the United Nations had no "right of cvntrol or supervision3" or "superviçory
jurisdicticiri in respect of South West Africa. At thar tirne ilie United Nations
J"
consisted of 57 Menibers, of whicli 5 1 had been originaI Mcmbcrs. OT the SI.

31 had k e n Members uf thc Lcague nt thc timc of i l s dissoIution and 34 had
k e n original Memhers of the League. IIad these States or any of thein dis-
ügrced with the Sourh African conlention that the supcrvisory funciions of
the League had not bccn transrerred to thc Unilcd Nations, one wouId have
expwted rhern io lia~*cçontcsted it, particularly if rhcy had been parties ta
an agrccriicnt, express or irnplied, concluded the previrius ycür and providing
for such a transfer.
73. In faci, rrpresentativcs or 41 States addressed the sarious organs of the
United Nations on the question of Sourh Wesr Africa during 1947, brrr r i / 110
s r u g ~did ony of ihem aver the e.risrenre ofar~ysuch ngieetnmf or s n g g ~ ~!hnr f
#lies11pervisury f u n c ! i ~ n .of~ the hugrgtre hciû pssed ro rhe Urtiied ~Varioirson QIIY
orherIiusis 5 . On the contrary, at Ieast 14 of thc 41 States who took part in ihe
debales, acknowIedged cither expressly or hy cleiar implication tliat, in the
übscncc of a trustocslip rtgrccrncnt, fhc Lnited Nations would have no super-
visory powers in respect or South West Africa. These were Australia, China,
CoIombiii, Cuba, France, inùia, Iraq, r he Netherlands. NEWZealand, Pakis-
tan, the l'hilippine Kepublic, the Soviet Union, ihe United States of Arnerica
and Uruguay
During 1948 and 1949, 4 additional States associated thcmwlves with this
view. viz.. Canada, Costa Rica. Cireece and thc United Kingdom '.
Lp 10 1919, 18 States ithrcfcirr: expresçed the view that in the abscncc of a
~rusteeshipagreement, the Gnitcd Nalions wtyuld have no supcrvisory poWi:ers
ivith regard to South West Africa. If South Afrim is added, the nitinber is
increased to 19.
' Vide para. 35? sirpro.

Yjcfe paras. 3 1, 35 aiid 36,sripro.
Yi& para. 35, sirpru.
Vide para. 35. sirgtpra.
' Vide para. 42, supro.
Vide para. 43, sitpra.
WRITTE Y STATEMENT OF SOUTH AFRICA 645
74. Whereas thcrc hüù Occn no conti-adiction in 1947, 5 Stares adopteù a
coniriiry altitude in 1948 a ~ 1949
d l . They were Relgium, BraziI, Cuba, India
and Lruguiy. Cuba, India and Criiguay hüd prcviously taken up a diflerent
atritiide as indicated above; and India did so again, in its written statement to
t his Court in iht: 1950 proceedings relaring to ihe çratus of' -11th West Africa 2.
As wi1l be secn from rhe t:xtracts quotcd übovc 3, nunc of these States %lied
on any agreement (oiher t hin Article 80 (1) of the Charter) having k e n con-
cludcd during the traiisifionai period of 1945-1945.
75. Also in respect of otlier mandated terriiories, thc practicc of Stures up
to 1948 shows a clear understanding ihat the United Nations would have no
supervisory powcrs ovcr thc administration o f a mandated ierritory not piaced
undcr trusteeship. This undlmtanding appears from ihe follriwing:
(ri) The rrusteeshipagreemt:nt for the maiidated territory of Nauru was entered
inio as laie as Noversib:r IN?, i.e., more [han two years aftcr thc Chartcr
had corne into forcc *; and the United Kingdom withdrew from the adniin-
isrration of Palesiine ririIy as from 15 May 1948j. Nevertheless no reports
ivcrc in the inlerirn p r i o d subniittcd to the United Nations in rcspcct of
either 'lérritory. As Far as rhe Linited Kations rccords show, and as far
as the South African C'iovernrnent is awarc, no State ever suggested t h i
such rcpurts shuuld c:ubrnii~ed-cither in respect of the='I'erritorics or
in respect of any other muidated territories during the period after dis-
soiulion of the Ixaçue and prior to "new arrangements" k i n g "agreed"
upon in rcgiird tu thcrn.
( h j (i) The case of Palestirte is of particular significzncc inasrnuch as it was
investigated and reported upon by a Gnited Nations SpeciliI Cornmittee,
consisting of rcpresente.tivcsof 1 1 Members of the United Nations. RcL-
vant extractsfrom the report, dared 3 September 1947, arc st.1 out above".
It is irnporlant t O norc that this Cornrnill~u:unaniiiiously expressed the
clcar undcrstanding th2.t thc Uninited Nations rtid not take over the supcr-
visov functions of the League of Nations with reswct to rnandated terri-
iories whiçh were nut placed under trustocship. Fiive of these l I. hqernbers
(AustraIia, Canada, India, rhc Netherlands and Uruguay) at various timcs
during the relevant period expressed the same view rcgarding the Mandate
for Soulh Wesr AMca. as has been n o t d above. The further six were
Czechoslovakia, Guatemala, Tran, Peru. Sweden and Yugoslavia.
(ii) AIso iri dcbates on the Palestine qiiestion the same view wus exliressed.
On 18 March 1948, bclore the Security Council, ihe ~presentati\~e aT the
Lnited States of America stated:
"The record seenis t r i us entircly clear that the United Nations did not
lake over the Lcagiie 07 Nations Mandiitc systcrn '".
' Vide para. 45, rirpra.
' Vide LC-J. Pirrndi~tgs,Iniernatiannl Slutus of Sottrh H,>.rf Afiira, p. 148. Vide
alsti para. 45, supra.
'' !'ide para. 45. sirpro.
l'ide GA, OR,Sworid Se:,s., Sup. No. 10 (A;402/Rev. 1).
' The Mandate rerminatec., on 15 %fay 1948. The last H r i t i ~ htroops IcR Friitn
Haif8 on 3U Junc 1948. Vidie ik:c>esing'sCuirfrnr~orar,pArchiv~r,Vol. VI1 (1 948- L 950).
p. 9354,
Yide paru. 44 (c).'supru.
SC, OR, Tliird Year. Nc-S.'36-51. 271si Meeting, 19 March 1948, p. LU. Vide
para. 44 (d;, sripi-il. ,
{ r j On 7:! N o v e m k r 1946, the representarive of New ZcaIand cleürly expi-essed
a sirnilar undcrstiinding in rclntion to the Mandate fnr the Territory of
Westc:rn Samoa '.
(4 On 2 April 1947. a siniilar understanding emcrged froin statements made
by th': rcprcscntativc of the Union of Soviet Socialist Reptlblics in relation
to tht: foriner Japünese Mandated rslands 5
76. In the rcsuIt thcrcf~ie:
(nj U p to the year 1947, no Member of the llnited Nations voiced any cun-
tradiction io South Africa's contention that in tau: the Uniied Natio~iswas
not vested with supervisory powen in rcspcct tif the Mandate for Sourh
West Africa, although 41 took part in debates on South Wcst Africii in
ihar ;jear and New Zealand had adopied a similar iOiew in relation to
Wcstcrn Samua.
{ f i ) Over the years 1947 to 1949, at least 24 States Menikrs of ihc Unitcd
Nations (other than SouIh Ahica) in participating in debütes in the organs
of the United Nstions, or in cxprcssing views in j t s agertcies, whcther
relative to the Mandate for South West Africa or io othcr rnüiidatcs,
such as Palestine and the Japanest Mandütcd ïslands. eitlier expredy or
by clciir implication acknowlcdgcd thar, in t h e absence of a rrustecship
agreement. the llnited Nations wotild have nu supcrvisory powers over
a rnarrdalcd territory. These States wcre: Australia, Canada, China, Coluni-
bia, <.'osta Kica, Cuba, Czcchoslovnkia. france. Greeçe, Guarernala, India,
Iran, Iraq, the Netherlands, h'ew ZeaIariJ, Pakistan. Pcru. the Philippine
Republic. the Soviel Union, Sweden, the Cnited Kingdorn. ihi: United
States of Arnerica. Uruguay and YugosIavia -%.
( c ) Up to IWY onIy 5 States voiced any contradiclion tu thc proposition dore-
srared. Thcsc States were Bclgium, Brazil, Cuha, India a n d Cr~iguay.Itl
the case of the Iaqt-rnentinned 3 States. the altirude adopied by them in
1948 and 1949 wüs in conflic1 with thcir carlicr contentions. and in the
case of India iilso with its contentions before tliis Court in I950. Arid in
no case was the contradiction based on a suggzstcd agreement or undcr-
standing ( o h r ihan .4riiclc 80 (1) of thc Chaner) arrived at during the
pcriod 1945-1946-
77. It i.i suhrnitted thar the understanding which crrtergtr: from the above
circumstances. and iir particulai- the wrirlcn and oraI statcrncnts inadc on bchalf
of a large numbcr of States, Menlbcrs of the llnited Nations. in a variety of
circumstances and situations, and within a relaiiveIy shorr tirne after the csiab
lishnient of the United 'laiions and thc dissolution of the League, when the
cvcnts were still rcasonably fresh in meInory, eRectiveIy refutes any suggestion
of agreement, express or implied, as between Meinbers of the Lnitcd Nations
or vther intercsicd particx. lu ~ h cffwt
c that niandatories would be subject tn
United i1;itions supervision in respct of inandated territories not placed iinder
trusteeshi]) '.
' Yi& para. 44 ( a j , sirpru.
V i d ~para. 44 ( h j . strpra.
- Vide paras. 42,43 and 44: x ~ ~ p r In
o . iIie prara 1947, 1948 and 1949. the Members
o l the Unired Nations toralled, respectively. 57. 58 and 59. During the oral pr~icmd-
ings in thc Soiiflr West Afi.ica cascs thc Applicants sought to dispute the corrrcrness
of thc statciiicnt in thc tcxt conccrning tlic n u r n h r of States. biit it i s subniitfed.
xrithuut succcss. Yi& I.C.J. Pfeadings, South Wcsr Afrinr, Vol. V111, pp. 468 C r sey.
' Sirnilarly. i t is submitlrd, thest: ù~sçussirinsçlearly rcfitrc any sugpcstion that
78. To concIude the analysis of events wliich occurred durinp the transi tional
f ' United Nations, the dissolution or i he League
period of thc cstablishrricnt < ithe
of Natioiis and irnmediatcl? thcrcaftcr, there is one final point that should be
cmptiasized. Had South Africa intended io place South West Africa uiider
Ilnited Nrit ions supervision, !here were two cstablishcd procedures that might
have been folIowed. In the iirst place, a irustwship agreement riiiglit haw bicn
negvtiated under the C:harier on such terms as were rnutrlally satisfactory.
Secondly, if South Africa had preferred 10 continue the Mandate rarher [han
place the 'I'erri tory undcr Trustceship. South Africa might havc submittcd an
appropriate reqiiest Io the Llnited Nations in lerms of Part 1, 3, C,of resolution
XIV ro assume the cxcrcjsc of functions pre~iousIycntrusted io the organs of
the Lcague of Nations by h.rticle 22 of the Coileeoanr and the Mandate Decla-
'.
ration It is undisputed tha t neiitter of thcsc procedures wïls fotlowed. Iri these
circumstances it is not Iightry to bc prmumed that South Africa, whiçh did no[
carry 0111 the prescribed formalities, though ai all times fully able and entitfed
to do so, son~ehowbecame boiind in anothcr way 2. In thiv rcgard "it is çltar
that only a very definite. vc ry consistent course of conduct "' on the part of
South Africa couid justify the Court in holding that Soiith Africa became hound
to report and üccount to th-: General Assernbly of thc Unitcd Nations as suc-
cessor to the Council of iht: League of Sations. Far from es~ablishingsuch a
dciinitc and consistent course of coiiduct, rhe circurnsrances disciissed above
serve complctcly to negative any consenr by South Africa tu ~ h assurripiion
c
of supervisory fiinctinns in respect cif S ~ ~ t West
t h Africa hy the United Nations
General Asscmbly.
such an obligation arose r>iii or a ierrri to bc implicd in rhc Mandait Dtclaration

( ~ I d cChapicr VII. para. 59, supru). Iti (tiis r e g ~ r dit mus1 he noted that 18 of'the 24
Statcs whiçh expressed ihe u;ew during 1947 t t i 1919 ihai the Lrnited Kations did
nui suured tci the super vis or^ Functioiis OF r h ç Lraguç in respect or mandat=, had
bren fourider Metnbers of tlii: League of Xalions, and 17 had bcen hlcmbcrs ai the
tiriie of irs dissoliition.
' Vide paras. 52 f O Sri, supw.
Vfde Norrh Sea ~ontint'n:uiSjreIJ, j t i f ! g t n ~ ~ i!.C.J.
t, Xeporr.5 1969, ut pp. 25-26,
qrioted in Chap. II, Tara. 12, Tiiprd.
6-48 NAMrBiA (SOUTH WEST ~ F R I C A )
Annex A
PARTICIPAI
ION BY MEMBERS IIZ DEBATES
OF THE NITEU EU NA-IIONS 1'1 THAT
DUKING THE YEARS1947, 1948 A N D 1949 CONCEKXISG THE
ORGANIZATIOX
OF SOUTH
'*QIIESTION WESTAFRICA"
Firs! Part
index IO Sinren7rtrrs of ail .?!aies wftich Pnrticipnted
(in alphabetiçal order)
Argentina
1947
FOUR-TH COMM.IITTI;~
38th Mccting, 7 Ociober 1947, M r . Liicero, p. 52.
1949
FOUF-TH COMMITTEF.
130th Meeting, t l Novcmber 1949, hfr. Tvrlin Uriburrr: p. 21 8.
134tk,Meeting, 23 November 1949. Mr. Tediir Urihrru, p. 242.
139th Meetirig, 28 Noventber 1949, MT.T e d i 3 L'rikur~~,
p. 277.
140th Mccting, 29 Novernber 1949, Mr. Tedin Uriburu. p. 276.
Ausilia
1947
Fou~.mCOMMITFEE.
39th Meeting, 8 October 1947, Mu. Evari, p. 58.
PLENARY
I Wth Mccting, L November 1947, Mr. i ? t . ~ i t p.
, 581.
?'RUSTEESI I I P COUKCIL
2nd !;ession. 1st Part, 6th Meeting. 1 Dccernber 1947, M u . korsyrli, p. 122.
2nd Session, I s r Parr, 15th Meering, 12 Uecernbcr 1947. .'tfr. f-ùrsyfh,
pp. 476, 494, 506; M r . hontes, p. 509.
2nd Session, 1st I'art, 18th Meeting, 16 Decernber 1947, Mr. Forsyth,
p. 585.
1948
TRtic~rrirrri~
C{>IINCI
L
3rd Session. 3 i s t Meeting. 23 July 1948, .Mr. Forsyth, P. 409.
3rd Session. 41sr Meeting, 4 August I WB, M r . Forsyfh. pp. 532, 536. 538.
3rd Scssion, 42nd Mccting, 4 Augus~1918, ;Mr. k>r.~-vrh,pp. 510, 542. 545,
546,547, 548, 544. 55 1 , 552.
1949
FOURTH COMMIT~EE
134th Meeting, 23 Novembcr 1949, Mr. Iluud, p. 238.
/Y49
TRUSTEESHIP COUNCIL
5th Session, 25tli Meeting, 20 July 1944, itlr. Ifood, pp. 310,312.
WKlTTES STATEMLST OF SOUTH AFHlCA
Belgium
1947
FOURTH~ O M ~ ~ I T T E E
33rd Meeting, 27 Septernber 1947, Mr. Ryckmnns. p. 17.
38th Meeting, 7 Ociolwr 1947, .W. Ryckrnans, p. 52.
441h Meeting, 14 Octrbbcr 1947, Mr. Ryckinairs, p. 90.
45th Mccting, 15 O c t c k r 1947, 1%. Ryckmnns, pp. 94, 96.
.I'RIISTEESHIPCOCSCII.
2nd Session, 1st Part, 41h Meeting, 1 December 1947, Afr- R-vcktnaits,
pp. L74, 125, 126, 128.
2nd Session, 1st Piirt. 15th Meeting, 12 Deceniber 1947, rVr. Rycknttlm,
pp. 473, 482, MY. 497. 501.
2nd Scssion, 1st Part, 18th hleeting, 16 Dcwmber 1947, Arir. R-vcknion.~,
pp. 576, 577, 580, 595. a.
1948
FOUR-r-n COMMITTEE
79th Mwling, 12 Novmber 1948, M r . Rycki?iatis, p. 324.
82nd Mocting, 17 'loi-einber 1948, iMr. Ryckntnns, p. 362.
83id Meeting. 18 Novernber 1948, Mr. Ryckinair.~,p. 372.
84th Mc~ting,19 Nov-mbcr 1948, Mr. Ryrknirms, p. 375.
T ~ u s ~ e e s tou~ctr-
~rr
3rd Session, 31st Meeting, 23 July IY48, iMr. Kycktrrons, pp. 406,410,412.
3rd Session, 41st Meeting, 4 August 1948, illr. Rycktnaiis, pp. 531, 535,
536.
3rd Session, 42nd Meeting, 4 August 1948, iMr. Ryckniaris, pp. 540, 542,
543, 544, 545, 547, 548, 549,550, 551.
1949
For:nrt 1 C ~ ! - l ~ l î - l ' k ~
129th Mccting, 18 Noveniher 1949. M. dc Bruync, p. 21 1.
I32nd Meeting. 22 Novernber 1949, M r . de CIrrtyne, p. 227.
134th Meeting, 23 Novernber L949, .W. de Brtryrie, pp. 238: 242.
137th Mecting, 25 Novenlber 1944,M r . Fcmux, p. 257.
139th Meeting, 28 Novembcr 1949, Mr. F ~ m i i x p.
, 277.
140th Meeting, 29 Novcmbcr 1949, ilfr. Fenaux, pp. 280; 282.
PLENARY
269th Meeting, 5 Dwnrber 1949. Mr. f - f h e u ~p., 533.
TRUWEFSHIP COUNCIL
5th Session, 1 st Meeting, 15 June 1849. M v . R}~L'X.mrili~.
p. 2.
' 5thÇcssion,25thMeeting,20July 1949,ilfr.R~cA-nintis,pp.3IO,312.
Boiivia
f 947
FOIJRTH C'<)M~IITTEE
401h Meeting. Y Octoher 1947, ,MT.Aforelru, p. 51.
BraziI
15347
' Fou~t-n
COMMI-I-I.EE
33rd M e r i n g , 27 Septcmbcr 1947,'iZfr. Pe~tlrudu,p. 15.
3Ytli Meeting, 8 Octolier 1847, Mr. Pcnleado. p. 55.
650 NAMIBIA ( s o i n ' ~WET
~ AFRICA)
1948
FOLR-TH C'OMMITTEE
78th luleering, 1 I Koiiember 1948. Mr. iwai~,p. 318.
1949
FULU-I H COMMI-1-I-FE
13 1st Meeling, 21 Novcmbcr 1949, rWr. d'Aqrri~10,pp. 2 19, 220, 222, 223.
132nd Meeting, 22 Noveinher 1949, Mr. d'Ayiiinn, p. 223.
1 35th Meeting. 24 November 1949, Mr. cr'Ayrrim, p. 143.
136th Mceting, 1 5 h'ovcmber 1949. Mr. d'Aqilino, p. 353.
I37ih Meeting, 7 5 November 1949, :Wr. Jnfiim, p. 256.
139th Meeting, 28 Novelnber 1949, Ilfr. fobim, p. 269.
140th Mceting, 29 November 1949, Mr. Juhirir, pp. 274, 278, 28 1 .
PLENP.RY
269th Meel ing, 6 Demrnber 1949, Mr. d'riyiiitio, p. 759.
Bunna
1948 .
Foü1i.1-HCCIMMITTEE
82nd Mccting, 17 Noven-iber 1948, Li So #yuri, p. 363.
ByeIornssirrn Soviet Socialist RcpubIic
1947
FOIIKTII CAMMITTEE
32nd Meetiiig. 25 September 1947. iWr. Sliniibrov, p. 12.
41th Meeling, 9 Ot-tobcr 1847, Mr. KiseIeb', pp. M, 66.
Canada
1947
FOURVH CCIMM~ITEE
38ih Mccting, 8 October 1947, Mr. Braderre, p. 56.
47ih Meeting, 73 O c t o k r 1947. :W. Dr(;~Jctfe.p. 106.
1949
FOUKMCOMMTI-1 ~t
1 32nd Meeting, 22 N ovem bcr 1949, :\.Iajor-Generaf Brtrns, p. 229.
136th Moct ing. 25 Nnvember 1949, Mr. Bluis, p. 250.
138th Meeting, 26 Novemkr 1949, M r . Bhis, p. 267.
139th Meeting. 28 November 1949. Mr. £Vais, p. 268.
aile
1947
fou^ rH COMMI-1-I.EE
401h M ~ ~ t i n 9g ,October 1947, Mr. Solo. ri. 6I.
1949
FOUHTII C:#MMITTF.F.
134th Mceting. 23 November 1949. Mr. Vulrnr~rr/a, p. 237.
139th Meeting, 28 Novembcr 1949, Mr. Va/eniire/a.p. 272.
China
1947
FOLK-rr
r C'I)M~~ITTF.F,
31st Meeting, 25 Septeinber 1947, Mr. Liii Clridi, p. 6.
38th Meeting. 7 October 1947, Mr. Lilr Cl~iclr,p. 51.
40th Mccting, 9 Octokr 1947, ,+fr. Liii C'hi&, pp. 61. 65.
WRIïTEN STATE51ENT OF SOUTH AFRICA
45th Meeting, 15 Oct ober 1947, Mr. Liu Chirh, p. 95.

PLENAKY
105th Meeting, 1 No~rernber1947, M u . Chirh. p. 598.
TRUSEESHIP COU'ICII.
2nd Scssion, [SI Par.., 6th Meeting, 1 December 1947, M r . L i u Chieri,
pp. 121, 123, 125. 12+, 131, 133.
2nd Session, 1st Part, 15th hfccting. 12 Dcocmbcr 1947, MT.Liu L%iek,
pp. 473, 478. 485, 48ii, 498, 50 1 , 502. 503, 504. 505, 507, 5 10, 5 1 1 .
2nd Session. 1 st Part, 18th Meeting. 16 Decenlber 1947, Mr. t i , i Moiislieng,
pp. 575, 577, 578, 58Ci; Air. Liir Cfrich, p. 601.
1948
COMMITTEE
FOURT~I
761h Meeting, 9 Novcmber 1948, 1Wr. Liu Chiejr, p. 394.
77th Meeliiig, I O Noveiiiber 1948, Mr. Liri Ckirk. p. 299.
T ~ u s r k ~ s nCOUNCII.
ir
3rd Session, 31st Meeting. 23 JuIy 1948, M r . Liu Chkh, pp. 41 1, 414.
3rd Session, 4Ist Meeting, 4 August 1948, ,tir. Liu Cl~ich,pp. 532. 535
(President), 536.
3rd Sessiun, 42nd Mceting, 4 August 1948, hfr. Liu Chieh, pp. 540, 541
(Pra~ident),542 (Prcuidcnt), 543 (I'resident), 548,548 (Prcsidenr), S5I1, 55 1
(Presiden t).
1949
FOU KI FI CDM>~IT~EE
bcr 1949, dur. Lki, p. 208.
128th Meei ing, 1 8 N~ivern
134th Meeting, 23 Kc~vcrnber1448, ,Ur. Liu, p. 237.
I39t h Meeting, 28 h'rivembcr 1949, ,Mr. T u I I ~p.~77
, 1.
140th Mecring, 29 Kclvernber 1949, Mr. Lili, pp. 277. 280.
TRU.FTEESIHP COUNCII.
5th Session, 27th Meeting. 21 July 1949, Mr. Liti, p. 334.
Culwnbia
1947
FOURTH C~MMITTEF:
33rd Meering, 27 Septembcr 1947, :Mi-. Yepes, p. 14.
40th Mecting. 9 October 1447. itfr. Sotirdis, p. 64.
PI.F.NARY
105ih Meeting, 1 Novernbcr 1947. Mr. Yrprs. p. 602.
Costa Rica
1947
FOURTHLOMMITTEE
40th Mcciing, 9 OctoSer 1947, Afr. Fournier, p. 53.
TRIISTEESHI t> COUNCII
2nd Session, 1st Part, 15th Meeting, 12 Dccernkr 1947, Mr. ~~eorales,
pp. 476, 488. 499. 5!W.
1948
F n r l ~ ~ C0h4>11~1-1
ir EE
83nd Meeting, 17 Nw~enîbcr1948, Mr. Cnrrris, p. 365.
84th Mccting, 19 No1,crnber 1948, Mr. Cinros, p. 374.
052 XhMIBlA (SOLTH WEST AFRICA)
TRUSTEESHIP COUKCII,
3rd Session, 42nd ,Veeting, 4 August 1948, rLlr. CR RUS^ pp. 341, 546, 548.
1949
TKGSI EESHIP COWCIL
5th Sesdon, 1 si Mccting, 15 Jurie IMY, M r . C a m , p. 3.
Cuba
1947
FOURT i COM MI ~ E E
32nd luiccting, 25 Scpiember 1947, hfr. .tfeyer, p. 9.
39th Meeting, 8 October 1947, Mr. M~yer,p. 55.
47th Meeting, 23 Iktaber 1947, h r . :Wcyer, p. 105.
1948
FOURTHC O M M I ~ E E
82nd Ivicet ing, 17 Yovcmber 1948, M r . Pérez Cis~reros,pp. 355, 3GG.
84th Meeting, 19 Novernkr 1948, Itfr. P i r i z Cisiieros. p. 373.
1949
FOUR-:HCOMVIITFI:
130th Meeting, 21 November 1949, Mr.P k e i Chieros, pp. 216, 217.
I3Ist Mceting, 21 November 1949, Mr. Pérez Cisneros, pp. 219, 221, 222.
134th Meeting, 23 Novcnibcr 1949,Mr. I i p e z . p. 236.
136th Meeting, 25 Noveinber 1949, Mr. fipez, p. 251.
139th Meeting, 28 November 1949, M r . Lfipcz, p. 27 1.
I40th Meeting, 29 Novcmbcr 1949, Mr. G p e : , p. 280.
CrkchosIo\'akia
1947
FOUR 'H COMMITTEE
45th Mccting, 15 Octuber 1947, :Ur. Hyka, p. 95.
1948
FUUK'TH COMMT E E
80th Mcciing, 13 November 1948, Dr. Ci~yle,p. 335.
I)efimark
1947
FOURTHCOMMLTTEE
31si Meeting, 25 Septembei 1947, iMr, Larinwtg, p. 8.
33rd Meeting, 27 September 1947, M r . La~tnutig,p. 17.
38th Meeting, 7 October 1947, Mr. L(innung, p. 46.
40th Meetmg. 9 October 1947, Mr. Lannurg, p. 63.
45th Meetrng, 15 October 1947, Mr. I ~ i r n i t ~ ipp.
z , 93,95.
47th Meeting, 23 October 1947, ,%gr. h t ~ n u i t g ,p. 106.
PLENARY
104th Meeting, 1 'lovernber 1947, Afr. Lartrzung, p. 574.
1948
F o u ~ ~ rCOMMI
n I.ïEE
8 1st Meeling, 16 November 1948,M r . Lnnnutg, p. 348.
82nd Mccting, 17 Yovcrnbcr 1948, Pfr. Lunirurtg, p. 355.
PLENARY
IMth Meeting, 26 November 1948. Mr. Lcinrrung, p. 577.
WR1T)'EN STATUENT OF SOUTH AFRICA
1949
PI.ENAKY
269th Mceting. 5 Deceinber iY.19, Mr. Latirrrrrig, p. 529.
hrninimn Rcpublic
1948
FMJRTH COMMITTEE
82nd Mccting, 17 November 1948, :W. de !Ffarc.hetfc~, p. 361.
1949
FOURTHC O M M I T T E ~
130th Meeting. 21 Nciveinber 1949, Mr. de Marckerui, pp. 217, 214.
I31st M ~ ~ l i n 21
g , I\jovernbcr 1949, I W ~ de
. Murcheiia, pp. 220, 222, 223.
132nd Meeting, 22 N.3venlber 1949, M r . de Marchenn, pp. 223, 229.
CI
1 35th Meeting, 24 Ncivember 1949, >MT.de .Wdrchciia, p. 247.
137th Meeting, 25 Nrivernbcr 1949, :Wr.de ~Warchen~t, p. 257.
139th Meeting, 28 Nrivember 1949, Mr. de .%farclre~ra, p. 277.
140th Meeting, 29 Nrwember 1949, Mr. de Marchena, pp. 274, 276.
Egypt '
1947
FOURTH
COM~IITTEE
32nd Meeting, 26 Septernkr 1947. T I I ~El-ScfyedBey
CI Nnsr, p. 13.
38th Meeting, 7 Octo bcr 1947, Tuho Ei-Sayed Bey Nosr, p. 5 1.
1949
F o v ~ ~Cc O
i SIMI~EE
I37thM~~tin~25Nc~vember1~49,~Mr.Farrag,pp.257.258. ,
France
1947
FO~JH.III
CO~IMI'CTEE
32nd Mccting, 26 Sep tember 1 947, Mr. Mayer, p. 1 1.
39th Meeting, 8 Octo:xr 1947, tMr. h f a y r , p. 53.
40th Metitifi, 9 OctoTxr 1947, ,Ur. ~ I / f a y ~p.r ,66.
45th Mccting, 15 Octiikr 1947, M r . ~Ma.vcr,p. 95.
COL'SCIL
Tavs~r-.~st~r~*
2nd Session, 1 st Part, ijrh Meeting, 1 Decernber 1947, Mr. Carreau, pp. 126,
130, 132.
2nd Scssiun. 1st Pari, 15th Meeting, 12 Decernber 1941, iMr. Carreau,
pp. 471, 472. 480, 484, 500, 508,510,511.
2nd Session, 1st Part, 18th Meeting, 16 Ueccrnber 1947, Mr. Gnrreai~,
pp. 578,579, 580,594,597, MK), 6û3.
1948
F r i r r ~ ~ CVMM~TCEE
ri
79th Meeting, 12 No%ember1948, ith. Garreou, p. 322.
TRUSTEES~IIP COCNCIX.
3rd S a i o n , 3lst Meeting, 23 July 1948, M r . Gurreau, pu. 407, 4 9 , 41 5,
41 6.
3rd Session, 41st Mectiny, 4 A~igust1948, M r . Garrecin, pp. 533, 535, 537,
538, 538.
3rd Session, 42nd .Ma:ting, 4 August 1948, M r . Gr~rreair,pp. 542, 544. 547,
549.
654 KAMtBIh {SOUTH WEST AE'RICA)
IY4Y
FOUKTH C'C~MMITTTT.
130th :Meeting, 21 Novembcr 1849, Mr. Gnrrrarr, pp. 215 , 2 17, 219.
13Ist Meeting. 21 Novemher 1949. ;Mr. Cnrrenu, pp. 720, 221, 212.
I33rrl Meeting, 23 Novcmber 1949, Mr. G~ctrreau,1). 230.
134th Meet inç. 23 Novemher 1949, iWr. Gnrreuu. pp. 240, 241.
I36th Meeting, 25 November 1949, !Wr.Gorvearr. pp. 252, 254.
137th Meeting, 25 November 1949, Mi-.G~rreuu.pp. 255, 256. 257.
138th Mccting, 26 Koveinkr 1949, M r . Garrenu, p. 267.
139tli Meeting, 18 Noveniber 1949, Mr. Gnrr~au,pp. 269, 271.
140th Meeting, 29 Noveinber 1949, M r . Garreciu, pp. 274, 279, 281.
T n u s ~ i t s ~ rCro u ~ c r ~
5th Sasion, 25tli Meeting, 20 July 1949, >%Irr. p. 31 1.
Larir~titi~,
P
5th Session. 27th Moering. 21 July 1949, !Mr. Gorreo~~,
pp. 330 {President),
331 (Presiden t), 332 (l'residcnt).
Grecce
1947
FOIJRT-II COMMITTEE
p. 14.
33rd Meeting. 27 Septeniber 1 947. .+Ir. Dia~~ianropor~lus,
1948
FOURTH COMMITEL
791h Meeting: I2 Yovcmbcr 1948, Mr. Trrino.7, p. 320.
82nd Mceting, 17 Novemkr 1948, Alr. Tr~nos,p. 353.
1949
FOCRI'HCOMMITTEE
131st Meeting, 2 1 November 1949, Mr. I.&, p. 2 19.
133rd Mceting, 23 h'ovemkr 1949, Mr.Lely, p. 232.
1 Wth Meeting, 23 Novcmbcr 1349, Mr. LeLv, p. 138.
135th Meeting, 24 November 1949, Mr. f ~ l yp,. 242.
137th Mwring. 25 November 1949, :W. LeS: pp. 256, 257, 258.
PI.EKARY
269th Mecting, 6 Dccernkr 1949. :W. Lei): p. 530.
Guakmala
1947
FOLWHC'OMM~TTEE
7 1st Meeting. 25 Septcnibcr 1947, Mr. :l4~tirbzu,p. 8.
40th M t ~ t i n g Y. October 1947, Mr. Mendoza, p. 63.
1'~tsnnu
105th Meeting, I h'ovemkr 1947, 114~.~lfendota,p. 604.
1949
FOURTH COMMITTEE
I30th Meeting, 21 Navernher 1949, .W. Merrclozu, pp. 217, 218.
l3lst Mccting, 21 Novernbcr 1949, Mr. Mirndoza, p. 223.
l3Znd Meeting, 27 Novembcr 1949. ,Wr. M ~ n d o i n pp.
, 276, 129.
133rd Meering, 23 Kovemkr 1949, I W . Afetiduzri. p. 231.
1341h Meeting, 23 Novetn ber 1949, !Mr.!Wendozn. pp. 776, 241.
135th Meeting, 24 November 1949, MY. meti id oz o. p. 244.
135th Meeting, 25 November 1949, M r . ~Ifendozu.pp. 252, 753.
1371h Meeting, 25 'lovember 1949, :Wr. M>t~doza,pp. 254,255,257,258.
wnrrtrN STATE,MEKT OF SOUTH AFRICA 655
139th Meeting, 78 Nrivember I949, M r . ;llendoza, pp. 268. 270, 271.
140th Mocting, 29 Ncivcmber 1949. Mr. Mrndota. pp. 273, 274, 279.
141s Meeting. 1 Deccmber 1949, Mr. !IIendoza, p. 282.
PLENAKY
269th Meeting, Ir I3ecemkr IW9, Mr. I%fet~doza, p. 533.
Iqaiti
1947
F o u n - r ~COMMITTFE
3tnd Meerinç, 76 Sepremkr 1947, Mr. Dnrsirri~illc.p. 17.
41th Meeting, 9 O c i o k r 1947, Mr. Dor.sirivil/~,p. 59.
PLENARY
105th Meeting, 1 Noi'ernber 1947. ~ l f r Vierrx,
. p. 606.
1948
F u u ~ r nCOMMITTEE
79th Meeting, 12 Navernber 1948, Mr. Apoiloii, p. 371.
1949
FOURTH
COMMIT-I.EE
13lst Mccting, 21 Nc.vember 1949, Mr. Alexis, pp. 720, 221.
132nd Meeting. 22 Novernher 1949, :W. Aie.ris, p. 228.
133rà Meeting, 23 Novernber 1 W ,Mr. A l c x î ~ p, . 234.
1 34th Meeting, 23 h'civember 1949, Mr. AIexis. pp. 738, 740.
136ih Meeting. 25 Noveaber 1949, Mr. Afexis, p. 254.
137th Mcering, 25 Noveriihr 1949, Mr. Alexis, pp. 255, 256.
1 38th Meeting, 26 h'rlvcrnber 1949, Mr. Ale-ris, p. 265.
1391h Meeting, 28 Nrwerriber 1949, Mr. Alexis, pp. 268, 270, 27 1.
140ih Mccting, 29 Novernbcr 1949, Mr. Afexis, pp. 274, 278.
Honduras
1947
FUEN-I-H COMMIITEE
33rd Meeting, 27 September 1947, M r . ACrurudn 'I'rociwï, p. 18.
India
1947
FOU ni n COMHITTEE
31st Meeting, 25 Sepi.ember 1947, Rajuii Sir Mnharuj Singk, p. 4.
32nd Meeting, 26 Septeinber 1947, R&h Sir Muharaj S i t ~ hp,. 4.
33rd Meeting, 27 Scptcmber 1947, Rnjnh Sir Maharcrj Sirigli, p. 18.
38rh Meeting, 7 Clctober 1947, Rujrih Sir dtfuharajSirigh, p. 45.
. 40th Mccting, 9 Oçtober 1947, Rajah Sir Mafirirr~j.Ting/?,p. 62.
45th Meeting, 15 Ocrobcr 1947, Rajah Sir Mnharnj Sitigir, p. 93-
PL~SARY
1 IMt h Meeting, 1 Noscrnbei 1 947, Rajah Sir Malraruj S i n d , p. 573.
105ih Meeting, I Nw~erriber1947, Mrs. Pandir, p. 596.
105th Meeting, 1 N o i e n i h r 1947, RaBh Sir :Wrih~~rrtjSit~~~:h,
pp- 522,Mg.
1448
FOURTH COMMITTEE
77th Meeting, ICI No-tcrnber1948, Mrs. Paridil, p. 300.
8 1s t hlee t ing, 1 6 Knvernkr 1948, Mrs. Panciil, p. 351 .
87nd Mccting, 17 Ne-vernbcr 1948, ,W. ShiW Rno, p. 358.
650 NAMIBIA (SOVI'H WEST AI:RTCA)
83rd hleeiing, 18 Novernber 1948, Mr. .Thira h o , pp. 369, 370-

84th Meeting, 19 November 1948, Mr. Shiva Ruo, pp. 373, 376.
PLENARY
164th Msrting, 16 Nowtnkr 1948, Mrs. Pandit, p. 582.
1949
FOURTH COMWITTFE
129th Meeting, 18 Novernber 1949, ,W. Shiva Xao, p. 210.
I3Ist lilceting, 21 Novcmbcr 1949, Mr. Shiw Rcw, pp. 220, 221.
I32nd Meeting, 22 November 1949, M r . Shiva h o , pp. 224, 226.
134th Mceting, 23 Novemtier 1949, Mr. Shim Run, p. 235.
136th Meeting, 25 Navernber 1949, Mr. Shtm Rao, pp. 251,253. +
1 37Lh ifeeting, 25 Novernber 1949,h4r. Chaiidhiri, p. 255.

138th Meeting, 26 Èiovcmber 1949. MF.Chatldhüri, p. 267.
339th Meeting, 78 h'ovemkr 1949, hfr. Chaudhitri, pp. 268, 269.
340th Meeting, 29 h'oveniber 19-49,M r . ChuurlRuri, p. 277.
I'LENAI~Y
269th Meeting, 6 W m b e r 1949, Mt.. C;kaitdhuri, pp. 530, 535.
Iraq
1947
FOURTH&MMUTT.E
32nd EiIeeting, 26 Septen~berI947, .Wr. KlurCidy, p. IO.
33rd Meeting, 27 September 1947, Mr. Kliaiidy, p. 17.
40th Meeting, 9 O c t o h r 1947, Mr. Khaiidy, pp. 60, 65.
PLENAHY
105th Meeting, 1 Novemkr 1947, Mr. Jarriafi,p. 631.
TRUSTEESIIIP COuhcl L
2nd Session, 1st Part, 6th Mwling, i Decemkr 1947, ]Ur. Khalidy, pp- 121,
126, 128, 131, 132.
2nd Session, 1st Part, 15th Meeting, 12 Ik~ecember 1947, Mr. Khalidy.
pp. 482,492,493,494,496,500, 506: 508,509, 512.
2nd Session, 1st Part, 18th Meeting, 16 December 1947, M r . Kkalidy,
pp. 578, 579, 580, 595, 5W, MU.
tY#
FOURTH
COYMI'I-TEE
79th Meeting, 12 November 1948, Mr. Khdidy, p. 322.
82nd Meeting, 17 Novcrnber 1948. Mr. KfiuIidy7p. 364.
TRUSTEESHIP COUXCIL
3rd Session, 42nd Meeting, 4 August 1948, Mr. Khaliriy, pp. 540, 541,
544, 546,548, 550.
1949
TRCSTIIESHIP COUNCIt
' 5th Session, 25th Meeting, 70 July 1949, M r . KhaIidy, p. 3 L2.
5th Sesion, 27rh Meeting, 21 July 1949, M r . Khaiidy, p. 334.
Israel
1949
FOURTH COMMIT~~L
1 32nd Meeting, 22 Kovei~iber 1 949, M . Mrrmaii, p. 229.
WRLI'IEN STATEMENT OF SOUTH AFRICA
Liberia
1947
FOURTH COMM~ET:
33rd Meeting, 27 Scpteniher 1947, .MT. Demis, p- 17,
40th Lfccting, 9 October 1947. Mr. den ni.^, p. 61.
f 949
FOURTH C o h t ~ r r n ~
132nd Meeting, 22 Novemher 1949, Mr. KoTetiky, p. 288.
134th Meeting, 23 November I944, M r . Kirig, p. 242.
136th Meeting, 25 Sovcrnbcr 1949, Mr. Kim, p. 251.
139th Meeting, 28 Novemher 1949, 1Mr. King, p. 249.
1 4 t h hieting, 29 Noverriber 1949, M r . Cooper, p. 280.
PLENA~~Y
269th Meeting, 6 Demmber 1949, M r . Couper, p. 53 1.
Mexico
1947
FOURTH COMMIT-~EE
33rd Meeting, 27 Septernber 1947, .W. Padifia N r w , p. 16.
39th Meeling, 8 Octc-btr 1947, Mr. PudiffaNervo, p. 54.
PLENARY
105th Meeting, 1 No-irember 1947, Mr. Pudifin Xervu, p. 591.
TKUSTEESHIP COC'NCIJ.
2nd Session, 1st Part,6th Mcctiny, 1 Deceinber 1947, Mr. Padiiiu .%'ervo,
p. 129.
2nd Scssion, 1st Part, 15th Meeting, 12 Doccrnkr 1947, Mr. Noriega,
pp. 475,483,492, 49'1, 499, 509.
2nd Session, 1st Part, 18th meeting, 16 December 1947. Mr. Nvriegu,
pp. 573, 593, 594, 596, 597, 548, 599, 604. 005.
1948
Fou~rtrCOMMITTEE
79th Meeting, 12 No~ember1948, Mr. Nuriegu, p. 326.
82nd Meeting, 17 Nc.vember 1948, Mr. hloriega, p. 36û.
84th Meeting, 19 Nwernber I948,iMr. Noriefa, p. 377.
TRUS~EESHIP COUNCII,
3rd Session, 3 1st Mei:ting, 23 JuIy 1948, iMr. PadiIIa Nerva, pp. 408, 414.
3rd Session, 4 1 s Meeting, 4 August 1948, Mr. ,Voriega, pp. 533, 535, 538.
3rd Session, 47nd Meeting, 4 Augusi 1948, M r . Noriega. pp. 541, 543, 544,
545, 546, 548, 549.
1949
FOURTH COMMI~E
130ih Meeling, 71 November 1949, :Wr.Aroriega, pp. 217, 218.
13 1st Meeting, 21 Nrlvernber 1949, M r . Nvriegu, pp. 219. 221.
134th Meeting, 23 Noveniber 1949, iWr. Noriega, pp. 235, 238.
136ih Meeting, 25 N.li>vcmber1949, M r . Xoriera, p. 251.
137th Meeting, 25 Niivember 1949, Mr. Noriegu, pp. 256, 257.
139th Meeting, 28 Niiveniber 1949, ,W. I\'oriega, pp. 268, 270.
140th Mceting, 29 N~vember1948, M r . l\roriega, pp. 173, 277, 280,281,
282.
658 SAMIBIA (SOUTH WEST AFK~CA)
TRL'S~ESHLP COUNCIL
5th Session, 1st Meeting, 15 .lune 1949, ,MY.Pudifia ~Vervo,pp. 2, 3.
5th Session, 15th Mcctinp. 20 JuIy 1949, M r . Noviegu, pp. 310. 312.
5th Session, 27th Meeting, 21 July 1949. ,Wricgn+pp. 331, 335.
Nethwlandl
1947
FOUR-rn Cohihirrr~ri
31st Mecting. 25 September 1947, Air. Ktirt~Icu~fip, p. 8.
38th Meeting. 7 October 1947, Mr. Kernkainp, p. 5.
45th klceting. 1 5 O c t o h r 1947, Mr. Kertzklr?itp, p. 93.
47th Meeting, 23 October 1947, iMr. Krrnkatiip. p. 1 M.
PLENA'IY
105th I+l~etirtg, 1 Novcmbcr 1947, ~Ifr.Kertzknnip, p. 605.
1949
F ~ U R TC~IMMITEE
II
136th Meeting, 25 Novernber 1949, Mr. Spils, p. 251.
Xew Zwila~d
1947
FOURTHCL~MMI-1-1
Et
33rd Meeting, 27 September 1947, Sir Car! Bereiickerl, p. 17.
- TRUSTI~ESHIP COLSCIL
2nd Session, 1st Part, 6th Meeting, I Decenibcr 1947, Sir Cdrl Rereiiristiii,
pp. 123, 126, 127, 132.
2nd Sc3sion, 1st Pari, 15th Meeting. 17 I>eceniber 1947, Sir CariBercnd~en,
pp. 47.3. 508.
1948
TKUST~;ESHII~ COIIKCIL
Reid, pp. 409, 41 3.
3rd Seisinn, 3 1st Meeting, 23 JiiIy 1948, :'Ili..
3rd Session, 42nd Mccting, 4 August 1948, ;1.fr.Reid: pp. 545,550,55 1,552.
1949
TKWST~<ESHIP Coii?ict~
5th Session, 25th Meeting, 20 July 1949, Sir Cari Berer~d~rett,
p. 31 1 .
5th Session: 27th Mccting, 2 l Jury 1949, Sir Car[ Berendse~i,p. 334.
Niiraragua
1947
FOURTHC O M M I ~ E E
38th Meeting. 7 Dctokr 1947, Mr. Sniisori-Terair, p. 57.
Norway
1949
FOLKTII CU~IMITTE~
129th Moeting, 18 November 1949, Mr. Wurm-Muller, p. 212.
134th .Meeting, 23 November 1949, h f r . Worrn-MuIIer, p. 241.
Pakistan
1947
FOURTII COMM!T~EE
39th mcting, 8 Octnher I W7, Mr. Pirtadu! p. 54.
WRITI'ES STATEkIENT OF SOWTH AFRICA
P1.f SARY
105th Mccting, t Nor-crnbcr 1947. M r . Piriclda, p. 617.
1948
FOURTHCOMMITTFE
78 th Meeting, I 1 No\emlier 1948, !W. Chu~rcihury.p. 3 14.
1949
~ U K -HI COMMI'TTEE
135th Meeting, 24 Ncveniber 1949, I M ~Shhban,
. p. 243.
Paiiama
194 7
FOURTH COMMITTEF,
33rd Meering. 27 Sepiember 1947, Mr. Ifhiccrr, p. 16.
401h Mccting, 9 Octokr 1947, Mr. iWoraIcs, p. 61.
45rh Meeting, 15 October 1947, ,Ur. flfriccfl,p. 94.
Peru
1947
COMMI'I
F<:ciriu~rr IFE
39th Meeting, 8 Oçtolxr 1947, Afr. Laharike, p. 56.
1949
FOUKTHCOMM~TEE
136th Meeting, 25 N r v e m k r 1939, ,Wr. ARmio C u r r m , p. 252.
Philippine Republic
1947
FOURTHC O M M ~ E T ,
31% Meeting, 25 Sept.itnhr 1947. Griirrul Roinuin, p. 7.
391h Mceting, 8 Octoller 1947, G~rtcrniRotnulo, p. 57.
'I'~i:sm~sn~rCOUNCIL
2nd Scssion, 1st Part, 6th Meeting, I D c ~ r n b c r1947, itlr. ijtg/4s, p. 127.
2nd Session, 1st Part, iSth Mcetiiig, 12 December 1947, Mr. Ingik.~,pp. 472,
475, 495.
2nd Session, 1st Part, !8lh Mecting, 15 Dcccrnber 1947, Mr. Ingjés, p. 600.
1948
Folin~rrCOMMITTEE
78ih Meeting, 1 1 Novcrnbcr 1448, M r . Lripeï, p. 316.
79th Meeting, 12 Kovernhei 1948, M r . Lope:, p. 326.
82nd Meeting, 17 Nosernber 1948, iMr. Lbper, p. 361.
THUSI~ESHIP COLNCIL
3rd Session, 3 1st Mwing, 23 Jiily 1 9 8 . Mr. Cr~rpin.pp. 408, 413, 415.
3rd Session, 42nd Mei:ting, 4 August 1948. Afr. Carpio, pp. 547, 550,552.
!Y49
I C<)M~II~EE
FC>L'RTI
128th Meeting, 18 November 1949, iMr. I~~IC:.F, p. 203.
129th Meeting, J8 November 1949, h f r . Cnrpio, p. 212.
133rd Mccting, 23 Novcmkr 1949, 114r. I ~ t f l k s , p , 231.
138th Meeting, 75 November 1949, .Wr, i q ~ i P . ~p-., 267.
139h Meeting, 28 November 1949, :Mr. Cnrpio, p. 268.
140th Mecting, 29 Novcmber 1949, Mr. Crtrpio, pp. 274, 278, 280.
TRUSTEFSHIP COL'NCII.
5th Se:;sioii, 25th Meeting, 20 July 1449, Afr. i r g k s , pp. 309, 311.
5th Session, 27th Meeting, 21 July 1949,lMr. I q f é s , pp. 329, 330, 333, 335.
PoIand
1947
FOURTH COMMITTEE
31st M-eeting,25 September 1947, Ilfi-. Drufwjuwski, p. 6.
38th Meeting, 7 Uctobcr 1947. Mr. Drohojowski, p. 49.
45th Meeting, 15 October 1947, M r . Bramson, p. 94.
471h Meeting. 23 October 1947, ,W. llrumstrn. p. 106.
PLENARV
104th Meeting, 1 Novernber 1947, hlr. Z~1irnn:~ki.
p. 589.
1948
FCIUR-I
I I C~MMITTEE
1Mth Meeting, 26 Novernkr 1948, Mr. Zebrowski, p. 590.

1949
R)UR~,II
COMMI'I-TEE
134th Meeting. 23 Novcrnbcr 1949, hfr. Zetiroivski, p. 240.
135th Meeting, 24 Novernber 1949, Mr. Zebruwski, p. 248.
139th Mecring, 28 Novernber 1949, Mr.Zebron,ski, p. 271.
Founl H C O M M ~ E E
82nd Meeting, 17 Novemkr t948, Mi-. Bergïall, p. 357.
FOURTHC O M M ~ E
32nd Meeting, 26 Septemkr 1947, Entir R d d ArsIun, p. 1 1.
43th Meeting. 15 October 1947, M r . Zeineddin, p. W.
105th Meeting, 1 Navernkr 1947, ;W.

Zein~ddin.p. 61fi,
I COMMITTEE
F<)IJRI'I
130th Meeting, 21 November 1949, Mr. Mi~fihir,p. 214.
13Ist Meeting, 2I Novenikr I949, :Wr. rtltgkir, p. 223.
140th MeeIing, 29 November 1949, Mr. rWtighir, p. 279, ,
ThaiIand
1949
FOURTH COMM~EE
128th Meeting, 18 Ir;overnkr 1949. P r i m Wun Wai!huyuknn, p. 208.
I33rd Meeting, 23 Novernber 1949, Prince Wan Wairhayakon, p. 232.
134th Meeting, 28 Novernber 1944, Prince WUIPWaiihnyakon, p. 271.
I401h Meeting, 29 November 1949, Prince Wor~M;aiihu~~(&on, pp. 275,
279, 28 2.
PLENARY
269th Meeting, 6 D e c m t b c r 1 949, Prince Wu~iWuirfr~~~vc~Eiotr,
p. 534.
Lkrsiinian Swief Socialist RcpubIic
1947
FOUKTH COMMITTEE
32nJ Meeting, 26 Septemtier 1947, iMr. Voim, p. 13.
40th Moeting, 9 Octollcr 1947, .W. Vuinti, p. 59.
Union of Sonth Africa
1947
FOUR-IH ~MMITTEE
3Ist Meeting, 25 Sepicniber 1941, Mr. Lnwrcrrcc, p. 3.
32nd Mccting, 26 Sep tember 1947, M r . L a w r r ~ c p.
~ ,9.
33rd Meeting, 27 Seprernher 1447, Mr. Lawrence, p. 15.
38th Mreling, 7 Octolxr 1947, iWr. Lowrenre, p. 47.
40ih Meeting, 9 O c t o l ~ r1947, ML Lnwrence, p. M.
47th Meeting, 23 Octrikr 1947, MP.Andrews, p. 106.
PLENAKY
105th Meeting, 1 Nwember 1947, Mr. Lawrence, pp. 526, 649.
1948
Founrn CO~~MITTEE
76th Meeting, 9 Novemkr 1948, kir. Louw, pp. 287, 796.
77th Meeting, IO Novcrnbcr 1948, M r . Louw, p. 297. :
78th Meeting, 1 1 November 1948, ,Mr. Loifw, p. 307'
81st Meeting, 16 Nonimber 1948, Mt-. toitw, pp. 340, 343, 344.
82nd Meeling, 17 Natlernbcr 1948,Mr. Luuw, p. 366.
83rd Meeting, 18 Novernher 1948, Mr. Louw, pp. 357, 370.
84th Meeting, 19 Kovernber 1'148, M r . Louw, pp. 3?h; 377.
PLENARY
164th Meeting. 26 Kovember 1948, Mi-. Lotiw, p. 585. .
1949
FOURTH COMMITTEE
'
128th Meeting. 18 Novemkr 1949, Mr. Jooste, p. 199. -
129rh Meeting, 18 Nuvcrnkr 1949. iMr. Jonste, p. 212.
130th Meeting, 21 November 1949, hfr. Joosfe, pp. 213, 217, 2I8.
1 3 1 ~ 1Meeting, 21 No-fernber 1949, t;Mr.Joosfe, pp. 220, 222.
l32nd Meeting, 22 Nrwcrnbcr 1949, Mr. J O C I Spp. ~ ~224,
, 726.
134th Mccting, 23 Novernkr 1949, Mr. Joosre, pp. 239, 241.
135th Meeting, 24 Kovernber 1449, Mr. Joosfe, p. 242.
136th Meeting, 25 Kovernbcr 1949, Mr. Joasre. pp. 249, 250. 253.
137th Meeting, 25 Novernkr 1949, ,Mr. J m r e , pp. 254, 258.
I38th Meeting, 26 November 1949, M r . W a c e , p. 267.
139th Meeting. 28 Novernkr 1949, Mr. Jooste, p. 270.
PLENAHY
269th Meeting, 6 Dsci:mber 1949, !Mr. Jnosre, pp. 523,536,537.
Union of Sovief Socidfst Republics
1947
COMMI~E
Frirr~~n
32nd Meeting, 26 Sepemher 1947, Mr. Stein, p. 9.
662 K A ~ ~ I B I(SOII-1.11
A WEST AFKICA)
33rd Meeting, 27 Septernber 1847, .Mr. Tsur(~pkin.p. 18.

38th Meeiing, 7 Octolxr 1947. Afr. S~ciri,p. 52.
40th Meeting, 9 October 1947, M r . Stein, p. 65.
45th Meeting, 1 5 Octoher 1947, Afr. Stein, p. 95.
PLEKARY
105th Mecting, 1 Navember 1947, Mr. Srein, p. 51 1.
1948
I-'OUK'I-H COM>II
1-1 EE
80rh Meeting, 13 November 1948, !Mr.Tsarnpkiii, p. 337.
81 si hfocting, IG Novcrnbcr 1948, air. fiurapkiti, p. 346.
82nd Meeting, 17 h'ovemhei 1448, Mr. Tsurnpkitz, p. 351.
TRUSTEESHIP COUKCIL
3rd Session, 31st Mccting. 23 July 1948, I\nrapkili, pp. 406,408, 4 0 ,
4 17.
3rd Session. 41st Meeting. 4 August 1948, :W. Tsarapkin, pp. 537, 538.
3rd Scssion, 42nd Mccting. 4 Auçust 1948, Mr. Xrnrapkin, pp. 541, 551.
1949
Four--HCDMMITTEE
134111Meeting, 13 November 1949, ,Wr. Zrrritbitz, p. 240.
135th Mccting, 24 Novembcr 1949. :Wr. ZuruIin, p. 242.
I37rh Meeting, 25 Novemher 1849, hfr. Zlirfibit~,p. 258.
139th Mccting, 28 Novcmber 1949, M r . Zurt~hin,p. 271.
T HL:S-I'E~SH~P
COUNCIL
5rh Gssion, 25th Meeting, 70 Jiily 1949, Mr. Solriarov, p. 31 1.
5th Srssion. 27th Mcciing, 2 1 July 1949: Xfr. Soldaroib, pp. 331, 332, 333,
335.
Unitcd Kingdom of Great Rritain nmi Nurîhern l r e i d
1947
Foun-!n COMMI i-I EE
33rd Meeting. 27 Sepiemkr 1947, :Wr. Llortoriricy, p. 14.
47th Mocting, 23 October 1947, Mr. Dovirs, p. 105.
- ~ R I I S IFF-TI~IPC O I I N ~ I I .
2nd Session, 1st Parr, Srh Meeting, 1 Deceinber I947, Sir Ainn Burns.
p. 125.
2nd Session, 1st f'ari, 15th Meeting. 12 D ~ e r r i k rIW7,Sir Alun Burrts,
p. 507.
1948
F o u ~ xi i COMMITTEE
77th Mccting, 10 Novcmbcr 1948, :Mu. C;nrdon- IYuLCer, p. 298.
'I'R IJST-EFSHIP C:OI:NCI L
3rd Session. 41sr hl~yting.4 August 1948, Sir Alnn Burais, pp. 53 1, 535.
3rd Scssion, 42nd Meeting, 4 August 1948. Sir Aiun Riirns, pp. 5 4 9 547.
548, 551. 551.
1949
FOIIRT+I C~MMIITFE
131st Meeting, 2 1 Novernber 1943, Sir Teretice Shotie, p. 222.
133rd Meeting. 23 Novemkr 1949. Sir Tcrcricc Shone, p. 233.
1 34t h Mcct Îng. 23 Novembcr 1949, Sir Tirence Shoiie, p. 240.
WRI-TlliN STATEMFhT OF SOIJTII AFRICh 663
135th Meering, 24 No.;crnber 1949. Sir Trrrrire Shi>lre. p. 246.
137th Meeting. 25 No:cmbcr 1949, MF.Fferchrr-Cookr, p. 257.
i 3Pih Meeting, 28 No;cmkr 1949, Sir 7kretrce Skoiie, pp. 269, 272.
140th Meering, 29 No';crnbcr 19.19, Sir Teraice Sliutie, p. 276.
PLEKARY
269th Meeting, 6 Decrmmkr 1949, Sir Teretire Shoii~.p. 534.
TRUSTEFSHIP COUNCIL
5th Session. 27th Mee!inp. ?I J u l ~1949. Sir Alnii Burns, pp, 331, 332.
United States of Arnwica
f 947
FOU KTH COMM~TTEE
3151 Mecliny. 25 Sepicmber 1947, M r . Dulies, p. 5.
33rd Meeting, 27 Sept,:mher 1947, :Mr. L>irIies, p. 18.
38th Meeting, 7 Octokrr 1947. ,Wr. D u l f ~ s .p. 50,
40th Mccting, 9 Ociotor 1947, Mr. Sayrc, p. 65.
45th Meeting. 15 Octcber 1957, &Ir. Sriyve, p. 94.
PLENARY
104th M ~ ~ t i n 1g .Nor:mher 1947. .Mr.S q r e . p. 577.
TRIJSTEESIIIP COUNCIL
2nd Session, 1st I'art, 6th Meeiirig, 1 Decembei 1947, MT. Gerig, p. 130.
2nd Scssion. I st Part, i 5th Mccting, 12 December 1947, Mr. Sayre {Prcs-
ident), p. 470.
2nd Session, Isi Par.:, I5th Meeting. 12 Deceniber 1947, M r . Gurig,
pp. 481, 482. 489, 4%). 495. 497, 499, 501. 503. 505.
2nd Session, 1st Pari.. 18th Meeting. IG Dcccmbcr 1947, M r . Gcrig,
pp. 576, 580. MIL
1948
FOLIL IN COMMITTEE
81st Mectirig, 16 Novcrnber 1948, hfr.S~iyre,p. 350.
871id Meeting, 17 No~ember1948, M r . Sayr~, p. 363.
TRUSTFESIIIP COUNCIL
3rd Session, 3 1st Meering. 23 July 1948, Mr. Soyre, p. 410.
3rd Session, 41st ;Mee;:ing,4 August 1948, M r . Sayre, p. 534.
3rd Session, 42nd Me:iing, 4 Augusi I948, .Mr. Suyrr, pp. 539, 540, 54I,
541, 543' 544, 546, 54', 548, 549.
1949
FOURTHC ' O M M I ~ F E
13 1st Meeting. 21 No~rernber1944, Mr. Fuky. p. 22 1.
133rù Meeting, 23 Novcnlbcr 1949, ,tir. Fah-v, p. 231.
134th Mccting, 23 N u ï e m k r 1449, M r . Fah., pp. 238, 740.
137th Meeting. 25 Nodember 1949, ,%II'.Fol'y, pp. 754, 255, 256.
139th Meeting, 28 K o ~ c m h r1949,Mr. Fuhy. pp. 268, 269.
140th Mcctiiig. 29 Noh7einber1949, Mr. F d y , pp. 276, 782.
~'LENAKY
269th Meeting, 6 &cc-rnkr 1949. Mr. Frihy, p. 533.
TRUSTEFSHIP COUNCII.
5th Session, 1st Meeti,lg, 15 Junc 1949, iWr. Sayre, pp. 2, 3.
5th Session, 25th hlccting, 20 July 1949, iMr. Soyrc, pp. 309, 311.
6a NAMIBIA (SOWH WEST AFHICA)
5th Session, 77th Mectiny, 21 JuIy 1949, itfr. S a y r ~p,. 332.

Uruguay
1947
Fom'm C D ~ ~ M I T T E F .
33rd Meeting, 27 September 1947, iMr. Arrosa, p. 13.
40th Meeting, 9 Octoher 1947, kir.Arrosa, p. 60.
P~.F.N>.Rs
105th Meeting, 1 Novernber 1947, Mr. Arro.rn, p. 614.
1948
F o u ~ mCOMMITTEE
38th Mwting, 11 Noveniber 1948, ,W. Gerona, p. 310.
82nd Meeting, 17 Novcn~ber1948, Mr. Jiménez, p. 359.
PLENP.RY
164th Mccting, 76 Navcmbcr 1948, ) I r . Geronn, p. 579.
1949
FOURTH WMITTEE
131st Mccting, 21 Novernber 1949, Mr. AlacF~ctien,p. 222.
136th Meeting, 25 Novernkr 1949, :W. MacEarhen, p. 254.
139th Meeting, 28 Novernber 1949, :W. ikfctaclien, p. 272.
140th ~tleeting,29 November 1949, A4r:r%cEucheri, p. 280.
VmuueIa
1947
Fomm COMMITTEE
3 r d Iifccccting, 27 Septeniber 1947, Mr. Lovera. p. 16.
1948
FOUR'CHCDMMIITEE
80th Meeting, 13 Noveiriber I948, Mr. i.ui:ern, p. 337.
82nd Meeting. 17 November 1948, Mr. Lovera, p. 357.
1949
FOÜRTHCOMMITTEE
130th Meeting, 2 1 Nnvemkr 1 949, :Wr. :Stofk, pp. 2 1 8, 2 19.
139th Meeting, 28 Novernber 1949, MF.Moriurer, p. 272.
Y ugosImia
1947
FOURTH COMM~I- LE
3Ist Mccting, 25 Scptcmbcr 1347, Mr. Riblrikur, p. 7.
45th Meeting, 15 Octohei 1947, M r . Ribnikar, p. 94.
1948
F c i r r ~ ~ tC
r OMMI~.E
82nd Mecring, 17 Novcmbcr 1948, hfr. V i f i n , p. 3M.
1949
FOLK-rkiCUHMIITEE
131st Meeting, 21 November 1949, iMr. Viffin, p. 221.
134th Meeiing, 23 Novcmbcr 1949. Mi-. Vjffi~n.p. 235.
140ih Meeting, 29 November 1949, MF.ïrebinjac, p. 175.
WRITTI N STATEMENT (IF SUWI'H AFRICA
SecundPari .
Lr~racrsfrom>:ratenterits by Represenlulit'es of Cerfaifi
SI ales
(in alphabetical aider)
1947
AustraIia
FOURTH
COMVITTCTEE
Mr. Evrrrt: "Although the GeneraI Asxmbly was entitled to recomniend
that a trusteeship agn:emcnt lx submitted, the countries represcnted at
San Francisco had ncwr intended it to be a Iegal obligaiion to place any
territory under trusteeship. The obligation to submit information under
Chapter XI for territcries noi under trusteeship ran parallel ro the pro-
visions of Chapter XrI." (GA, OR, Second Srss., Fourth Cornni., 39th
Meeting, 8 October 1947, p. 58.)
PI.F.KARY
Mr. E w a : "Thrrefore, therc is no gap in the Charter of t he Uniled Nations.
If the Union of South rifri~;idoes not bring ils Territory undcr the Trustce-
ship Syslein. it is still, in my view, a Non-Sdf-Governing Territos.. The
Union Governrncnt vrill have to give, voluntarily, reports for the in-
formation of the Sccrt:tary-General. The Secretary-Creneralcan do as he
chmses witll this infrirmatinn." (G.4, OR, Sccond Sess., Vol. 1. 1Mth
PIenary Meeting, I Nrivembcr 1947. p. 588.)
TRIISTELSHIP COUKCIL
Mr. Fors).vb: "The reports on Trust Terrirnries are submitted not merely
to infornt the Trustcedip CounciI but tu enable the Trusteeship Couneil
to exercise its main furciion, the supernision of administration. In the case
of South Wcst Africa, which is no[ a Trust Territory, the Trusteeship
Council dws not have the function of supcrirising administraiion. The
adn-iinistrationof Soiith Wcst Africa has b e e ~resented by the Govcrnment
of the Union of Snuth Africa as i ts own coneern, and rhat Government,
not hahring plaod ttie territory under rnisteeship, d ~ c sncit recognie the
power of the Trusteeship Cbuncil to supervise its adiniiiistration. 'Thert: is,
therefore, a fundamerita[ difference bet~veen the purpose for which the
report on South West Africa is submirred and the purpusr for whicli
reports on Trust Terriruries are submittcd." (TC, OH, Second Scss.,
Firsr Part, 15th Mwtittg, 12 Decernber 1947, p. 477.)
China
FOURTH COMMITTEE
Afr. Liu Chieh: "The c a l y çhoicr la) between trustteship and the srant of
independence. Arricle 80, paragriiph 2, of the Charter further provcd the
obligatory character cbr the [the trusteeship] systern. . . . I f the Cnion of
Souih Africa placed South West Africa under trustccship, il would not he
deprived of the administration of thc tcrritory; and the onIy changc would
k the placing rif thal adniinistration under international supervision."
(GA, O R , Secoiid Sess., Fuurth Comm.. 3 1st Meeting, 25 Septernkr 1947,
P. 6.3
PLENAXY
iWr, Chieii: "We are tc-Idthat the Union of South Africa would sdrninistcr
the Territory or Soutli Wcst Africa in ~ h spirit
e of the Mandatc of the
League of Nations. 1 do not doubt the sincerity of this statcment un the
part of the Union of South ATrica, but we a11 know that the mandüres
systcrn has ccascd to cxist and that the trustecship systein has been es-
tablished. Would it iint be inore desirable, to adniinister the Territory in
question iinder a Iiving syslern [han under the shaduw of a ghost svstcm?"
(CA, OR, Sccond ses^., Vol. 1, 105th 1'len;iry Meeting, I Novemher 1947,
p. 601 .)
Columbia
fou^ i'H CUMMI'I I Et
,!Ur. J'cpes: "If the Mandate werc to bc continued, on whose behalf wouId
it be exercised? 'The Leaçue of Nations \vas defunct. In international as
weII iis in civil Iiiw, ihc Mandatory Po~vcrcuuId not continuc to hold a
mandate after the institution to which it was responsible had ceased to
exist."(GA, OR, Second Scss., Fourlh Comm.,33rd Meetiny, 77 Septcrnber
1947, p. 14.)
I'LEXARY
iMr. Yepes: ".
. . on whose heliatf would the mandate of the old League of
Nations t>e exercised?
It c:oulJ wrtainly not bc thc Lcaguc of Nations. for it has ccased to
exist, and the mandate could not >t exercised o n klialf of a dead in-
stitution. In civil law, as we a11 know, power OS attorney ceaxs tipon lhe
dealh of the principaI. Thc sarnc idca cxtcnds. by anaIogy, to intcmational
law. 1% 'ccn coiiclude that, since the Leagrie of Rations is dead, niandates
exercised under ils authorily have aIso lapsed, and ihe rerritoriesconcerntd
must faII under thc Trustecship Systcm csiablishcd by Articlc 77 of thc
Charter.'' (GA. OR, Second Sess., Vol. 1, 105 th Pienary Meeting, 1 Novem-
ber 1!)37, p. 602.)
Cuba
FOURTHCOMMI-1-1 EE
(il M i . Meyer: ". . . rhc infurrnaiirm submittcd by thc Govcrnrncnt of the
Union of South Africa with regard to South West Africa could not be
examined since South West Ai'rica was neithtr a Trusi Territory nor
a Kun-%If-Govcrn~ngTerritory." (GA, OH, Second Sess.. Fourth
Crimin., 32nd Meeting, 26 Sepleinber 1947. p. [O.)
(ii) Mr. itfeyer: ". . . disputed the contenrioi~of the Govcrnment of thc
Lnion nf South .4friw rhat i r had no alternative to retaining the
srri/us yuu, nor did he rccugnizc ihat South Wcst Africa constiiuted a
utcgory szli gcrzcris. 'I'he Charter was very clear in recognizing only
three caregories : Trust Terrilories, Ihe Won-Self-Govrrning Terri tories
and indcpcndcnt Statcs." (GA, OR. Sccond Scss., Fourth Comrn..
39th Mecting, 8 Octoher 1447, p. 5 5 . )
France
..
1 RI:SC~TSH~P COUNCIL
,Wr.Garrerru: "That text [of the Cieneral Assem bly Resolurion] rvas very
mrefrilly drarted after lengthy discussion bccausc t hc AsscmbIy, in referring
the report of the Govemment of the Union of South Africa to the Trustee-
ship IZaunciI, wanted ahove al1 to rake ttie firsi step in the direction of
interrrational su~rvisicinovcr r ht: former rnandaicd Tcrriiory uf South
West Africa, pcnding reconsideration of the tlssernbly resolution by the
Govcrnment of the Ilnion of South Afijca and a decision of that Govcrn-
ment in that connectioti . . .
Indeed, in the abscnw of a trusteeship agreement, the Counçil-and the
W R ~ ~ T ESTATEMENT
V OF SOUTH A F R ~ C A 667
samc would have k e n trtie or the Fourth Comrni t tcc+uuId exarriine Ihe
report of rhe South African Government only for information." {TC, OR,
Sccond Sss., First Part, 15th Moeting, 12 Decerriber 1947, p. 480.1
1ndia
FOIIRTII C:~IMITTI~E
India suhrnitted a draft resolution which in paragraph 5 thcrcaf containcd
the following siatemeni :
" LVkerccis the ttrritoq o l South West Africa, though not =If-
gouernjng, is at prrsent outsidc thc cuntrcil and supervision of the
United Nations." {GA, OR, Second Sess., Foiirth Comm., Annex 3h,
p. 197.)
Iraq
FOURTH CO.MMITTF-.F.
Mr. Xhalidy ". . . poiiited out that the irusteeship system of thc Unitcd
Nations had replaced tlte mandales system. . . .
Thc müntiatcs sytcrn Iwd wased to funciion. The Union of Sou t t i Africa
had iiot accepted the triistceship system, to which there \vas no altcrnaiive.
The trusieeship system #ifferaithe unIy legal right to adii~inistera territory
fvrrncrIy under 1nand;ite.'' (GA, OR, Second Sess., Foiirrh Comm.,
32nd Meeting. 26 Septr mtier 1947. p. IO.)
PLENARY ,
!\fi. ./atainli: "Novi tht: League o f Nations is dead, but the prinçiples
undcrlying the mandate are not deüd. Chapter XII of the Charter certainIy
replaces Article 22 o f tIic Co\~nant.. . .
There i j no obligatioa [IOplaw a rnandaied territory under tlie trustce-
ship system]: but thesc incmbcrs of the General AssernbIy who worked a n
the trusteestiip Chapter of the Charter al San Francisco wiIl rciiicnibcr tht,
although there was nti obligation on thc miindatory power to put a
territory under the trust-hip system, it N7as irnplicd that the mandatory
Pofieerwoiild either put suc11a territory iinder ~rusreeshipin due coiirsc, or
docIarc its independenci.. . . . There is no Furthcr alternative. . . .
I heIieve that the rt:tention of the Territory of South West Africn,
neither undei the triisteeship sysrem nor as an independent terriiory, is a
retrograde stcp. Tt is coiitrary 10the spirir of thc Charicr, and it i s a denial
of the right of the United Nations to supervise the rvelfarc and freedom nf
al1 peoples al1 over th: world." (GA, OR. Second Sess., Voi. T. 105th
PIenary Meeting, 1 No~~ernber 1947, pp. 621 -622.)
TKUSI.EESHIP CUUNCIL
:Wr. Klirrlidy: "1 had occ:asiun 10 çriy at the time [in the Fourth C:ornmittce]
that South West Africi is ncither a colony, a mandatcd territory nor a
Trust Terrirory. I r is niit a mandatcd terrj~ory,1 said, and 1 sliil say sa
k a u s c the Lcciyue uf I.laiicins from which the mandate derived legally. is
dead." (TC, OR,Secoml Sess., Firsr Priur, 15th Mcct ing. I 2 Decenlber 1947,
p. 482.)
Nc~hcrbnds
FOIIRT~I COMMITTEE
M r . Kcniknnrp: '-He fclt that the refusai of South Africa to phce thc
territory under the iiiternatioiul irusteship system was regrettable
beçaux since independence had nnt been grantcd 10 the territory its
withdrawül fron? any :;ystcm of interiiatinnal supervisivn was a retro-
gressive stcp." (GA, OR. Second Sess., Fourth Comm., 38th Meeting,
7 October 1947, p. 52.)
Mr. Kernknmp: "Thc mandates systeni now does not operate. As there is
no longer a supervising authority, thcrc is no longer a mandates system.
The voluntary transmission of information, merely for thc sakc of infor-
mation, by the Union of South Africa to the Trusteeship Council does iiot
givc ihz Council the same jurisdiction as the Permanent Commission on
Mandates had. . . .
. . .vje consider that the prcscnt situation ccinst i~utesa step backward, in so
far as a terriiory once under internationaI supervision is nuw under no
super-intendence.. ."(GA, OR, Second Sess., Vol. I, 105th PIenary Meeting
I Nc~vember1947, p. fi05.)
Kew Zealand
Forrini COMMITTEE
Sir Car! Breirdseii: "Speaking as the representative of New Zealand, hc
favaareci the international supervision of al1 backward peoples, hut
maintained that there was nu legal obligation on any Mandatory Power to
plam a mandate under tlte trustwhip system. The Comrnittcc could not
thecefore accuse the Union of South Africa of fairing in its duty." (CA,
OR. Second Sm., Fourth Comrn., 33rd Mcctinp, 27 %pteml>er I947,
p. 17.)
TRUXTEESHIP COUKCIL
Sir C'arl Brrerrds~~n:"This [South West Africa] is noi a Trust Terri tory. WC
derive no pnwers from the Chartcr. Our only powers are derived froin the
resolution of the GeneraI Assernbly, and out puwcrs are limited by that
resolution. . ,. But we are not entitled-aiid i regret it very much indeed-
we are clearly not entitled ta send a visiting mission. WC an: clearly not
entifled 10 acccpt pciifions. We are clearly not entitled to hear oral r+
prescntation." (TC, OR, Second Scss., First Part, 15th Meeting, 12
Dwrnber. 1947, pp. 478-479.)
Mr. Pirrridu: "A siiiiple conrparison of the relevant articles in Chapttrs XI

and XII of the Charter wilI show clearly tlte advanrages of one system ovcr
the other. 'I'he firsr advantage that I wuuId strcss is thirt, under the present
manda tts system, only one couiitry is responsible for the proper adminis-
tration and the developmenl of political and other institutions within thc
Territory. I t is the consciencc of anc Statc which wiIl & guiding it aII the
time 10 follow the provisions laid dowm in Chapter XI of the Charter.
On the other hand, i T it cornes iinder the international trusteeship systcrn,
it wiII be the conscience of al1 thc C n i t d Nations, as represented in the
Trusteeship Council, which will he guiding the administration of the
Territory and which, therefore, has a greater chance rif heing dircctcd in
the intercsts of the pcoplc of thai Tcrritory.
The second advantage wwhich the trusteeshipsystem kas over the ordinary
administration iinder Chapter XI is thar international supervision is
providcd undcr thc intcrnativnal lrustteship system, according to ArticIc 75
of the Charter. As against that. under Chapter XI of the Charler, which
reIates [O the adminisr ration of Non-Self-Governing Territories -to whicii
clasr this Territory of South West Afric;i wilI have io belong if it is not
WRTTTT.:r; STATEMENT O F SOUTH AFKICA 669
brought under thc tru iteeship system-there is no provision for inter-
national supervision, ar,d the only supcrvisiun that exists takes the form of
supplying information on nun-politicai matters for the consideration of
the United Nations: ir, other words, econornic, social, and other mal-
ters. . . .
There are two systcrns undcr the Charter of the United Nations, namely
t hc administration of Non-Self-Governing Territories, and the adminiç-
traticin of tcrrituries under ihe trusteeship systcm. This would be a third
syslein-adiniiiistehg in the spirit of the inandate-which the Charter
does not recognize and which the Charter seems Lo abolish aIrngether. . . .
'Thereforc, by refusiltg to place this Ierritory under the tiusteeship
system, the Union OF Soiith Africa is goinç back on boih prinçiples
recognifid by the Covcnant of the League of Nations: first, trusfeeship
of an internationüI body; secund. supervisory controI or an international
body." (GA, OR, Secoiid Sess., VoI. T, 105th Plenary Meeting, 1 Novcrnbr
1947, pp. 618-619.)
PhiIippine Repnblic .. .
UR-1.n COMMI~TEE
fi) Gent.rni Rnnizrfo: "Thc Union of Suiil h A frica had contcnded that it
had oblained its .powrers from the Lcagur of Nations, but i t tiad
forgotten the ncw obligations i t had assurnoci under the Chartcr.
Chapter XI of the Charicr contained a declaratinn which applird to al1
t h e Non-Sdf-Governing Tcrritories, whether mandated or not. That
declaration ernbodicd obligations which far exceeded rhose of thc
mandates system. Tlte resolutioii of the Uniun Parliament impIid that
these obIigations would be fuIfilIed by the submission of information."
(GA, OR, Second S:ss., Fourth Criinrn., 31st Meeting, 25 September
1947, p. 7.)
(ii) Ceiteral RoinuIo: "VIhiie supporting the draft rewlution submitted by
the represenlaiive o i India, me] could not subscribe to the firth para-
graph of that propcisal, to thc cffrct that South West Africa was 'at
present autsjde the conirol and supervision of the Unilcd Nations'.
Chapler XI of tlie Charter appl ied to a11 the Non-Self-Governing
Temtories . ..
Accrirding to ArticIc 103 of the Charter, obligations under the
present Charter su~ersedcdot her internat ionaI obligations, and that
meant in eflect that the Union of South Africa was bound to fuifi1
its obligations undrr Chapter XI as long as South West Africa re-
maiired outside tht: trusteeship system." (GA, OR, Second Scss.,
Foiirih Cornm., 39th Mecting, 8 October 1947, p. 57.)
Uniun of South Africa
FOURTHCOMMII-TEE
Ci) :Mr.fxivrence: "In r e s ~ c oft irs adininisrration of South WEYLAfrica,
thirt Government [of thc IJiiion of South Africaj would niaintain the
sfaiu~qzmi i i thespirit of the Mandate. Ir wuuId not subrnit a trustecship
agreernenl, but woliId transmit iiiforniation annually. InTonnation
rdating 10 1946 was now in the hands of the Secretary-General." (CA,
OR,Second Sess., Iburth Cornm., 3 1st Mccling, 25 Septenilier 1947,
P.4.)
(ii) iMr. Lawrence: -'ln rcply to the request made by thc Danish r e p r w n -
tative at the thirty-first meeting regarding ctarifrntion of documenl
Aj334, Mr. Lawrence statcd that the Maiidare gave m'tain puwerri and
jrnposed certain obl içations. The Governinent OS the Union of South
P.frica hiid full puwcrs of adrninistriitiun ovcr South Wcst Africa, and it
proposed t o continue to exercise tlieiii, just as it would contiriue 10
f~iliilits obIigations undcr the Mandate to pronlotc the moral and
niaierial well-being of the populaiian and ta advance social progress.
7 he Uriion of South Africa did rlot clairri that South Wcst Africa was a
colony. but it kvas wilIing t o submit aniiual reports like tliose required
for the Non-Self-Goveining Terri tories under Ar1 ide 73 c [sic].
The right i o peti ticin had wilstul tu cxisl with thc disappcarancc of thc
Leügue of Nation?, the authority to which peti tians could be addic~ed.
1 1 the absence of a t~usteeshipagreement. the Uniled Nations had no
jiirisdiction ovcr South Wesr Afriu a d tthcrcforc no right to roccivc
petirions." (GA, OR. Second Sess., Fourth Coinrn., 33rd Meeting,
27 September 1947, pp. 15- 16.)
PLEKAKY
Mr. Lnwrcjice: "In addition, the Ciovernrnent of the Union of Sourh
Afrira has expressrd ifs readiness tu submil annud rcports for the infor-
mat ion of the Unitcd Nat ions. Tliat undertaking stands.
Although these reports, if accepieci, wiIl be rendered on the basis chat the
United Nations has no supcrvisory jurisdiction in rcspcct of this Trrritory,
they wjllserve to kecp the L'ni ted Nations iriforined, in much the sarne way
as they wilI be kept infornted in relation 10 Non-Self-Governing Territories
under Article 73 e of Ihc Chiirtcr." (GA, OR, Sccond Scss., Vol. 1, 1 05th
Plenary Meeting, 1 Novemher 1947, pp. 632-633.)
Cnion of Soviet Socialist Republics
PLEYA~<Y
Mr. S~ein:"Tt is also knowii that the South Africaii Goveriiment refused to
comply wirh this recommendation [io submil a trusreeship agrern~rnt]
and set up an absurd juridical status For South West hfricü which con-
sistcd in the adininistration of South West Aîrica being cariied out 'in the
sp~ritof rhe I ~ a g i i eof Naijons Mandait'. 1 say rhat this is an absurd
juridicd stiitus, s~nccnow, in 1947, after the League af Nations and fhc
mandates system have ceased to exist, and reference is made to this system
in order ro conceaI the actiial annexation oF South West Africri." (GA,
OR, Second Scss.. Vol. T: 105rh Plenary Meeting. 1 Kovcrnbcr 1747,
. p. 61 2.)
The Lnited Strtes of America
FOURTH COMMITTEE
:Vr. D!tl/es: "The Union of South Africa had no legü1 title l o the terr~iory
at preseni, brcoux its only titIc was a Mandatory itndcr thc Lcagut or
Xations." (GA, OR, Second Sess.. Fourth Comm., 3Rt h Meeting, 7 October
1 947,p. 50.)
TKUS~~E COUNCIL
YHII~
Mr. Gcrig; "It was said here carlier this afternoon, and 1 did not hcar any
mcmber object. that while we ail hope-rny delegation as much as any
delegatian kels rhal way-thal t h e wilI be a trusreeship agreement for.
thjs (erritury, WC do notl in the absence of a trusteeship agrecmcnt, have
suprvisory functions over this territory. Therdore, 1 do not think we
ouglit to imply hat we do have supcrvisory functions to ensure rhat the
Union Govcrnment discharges its dutits under the present mandatc,
WRrrrErt SI'ATLUENT OF SOUTH AFRICA 67 1
admitting that i t cxists." (TC,OR, Second Scss., First Pari, 15th Mccting,
12 Deceinber 1947, p. 505.)
Cnrguay
FOURTH COMHITTEE
(i) Mr. Arrosa: "The diity to subrnit trustoeship agreements was not only
a nioi-alone. Article 80, paragraph 2, of the Cfiarter perinitted no dclay
on the parr of thc Mandatory Pomers. At a time when onIy two cIasçes
nf depcndcnt tcrritor-iesremained in existence, the Kon-Self-Govcrning
Territoriesaiid the Ti'ust Territnries, South West Africa's position had
çlearly becoiiie tinornalous." (GA, OR, Second Scss., Fourth Conim.,
33rd Meeting, 27 Seplember 1947,p. 14.)
( i i } ,2fr. Arrn.r#: "His delegcitinn \vas af rhe opinion that since the mandatcs
systern \vas defrinct 2nd Souih West Afrim was nJther i n d e ~ n d e n
t nar
a colony, thc Union of South Africa was under an obligation tu place
it under the internat ional trusteeship systern." (GA. OR,Second Scss.,
Fourtti Cornni., 40111Mceting, 9 Octoùer 1947, p. a.)
PLENARY
Mr. Arrosn: "'ikrriaintain oncc morc that it is impossible to conceive of a
mandaie continuing, even ont? in spirit, now thüt the body which g r a n i d
i t . rite League of Nation j, has eased to exist. There is iiere a clear anomaly,
for thc Tcrrirory in question is neithcr indcpcndent nor a colony.
The internationaI syslem riow in foi-ce takes a ~ o u n of t two cIasss of
dcpcndcnt rerrilories onIy: thuse called by Chaptcr X I of the Cl~liarter
'non-self-governing', atid chose placed undcr thc trusteeship systetn in
accordance with Chaptcrs XI1 and XIII. Tliere is no thiid category or
cIsss of dcpcndcnr teri-itories." (CA, OR, Second Scss.. Voi. 1, 105th
Plenary Meeting, 1 'loilember 1947, p. 615.)
1948
BeIgium
FOURTHCOMMI.I?EF
hlr. Rycknimjs: "Uiider rbe nlartdates system, Souih West Afrjca had b e n
adrninistered iinder a 'C' Mandale, and i t tiad aIw,ays been undcrsloud
thiit thc Tc~ritorywoulrl exre.eiituallybe incorporated in thc Union of Sout h
Africa.
On the other hanrl, {;le]felt bound to draw the attention o f thc Souih
A f r i w rcprexniaiive and the Cornmittee to lhe ternis or Articie 80, which
provided that nothing iit Chapter XII of the Chartcr shoiiId be 'conrrrued
in or of itself t o alter in any manner the rights whatsoever of any Staies or
any pcoplcs . . .'. That included the people of South West Africa, who,
having had the hnefit of internat~onal supervision under Ihc niandates
suleni, could not he dcyirivcd of thai righi." (GA, OR. Third Scss., Par1 1.
Fourth Comm., 79th Meeting, 13November 19-18. pp. 325-326.)
China
Fouwr-HCOMMI I-1-tt.
iMr. Liic C.'hiefr: "11 wa: truc thüt, as rio trusteeship agreerncnt had been
conduded Tor Souih W Z SAfrica.~ the United Narions wuId not interverle
or exercise ils power of supervision in rcgard tu that Territop. Bu1
paragaph 2 of ArticIt: 80 iniposed an o h l i ~ ~ t i oio n cowlude such an
agreement rvithout deIay." (GA. OR, Third Sess., ?"art 1, Fourth Conim.,
76th Meeting, 9 h-uverriber 1948, p. 296.)
Costa Rica
Fo:ou*rrri COMW~ E E
,W. Canus: "Tl-ie Lnited Ya!ioris shouId not acr as though its hands were
tied by the Mandate. I t had not bccn a party t o thc mandaie agreement.
and could not ihcrcfore be obliged to act in accordance with its provisions.
Indccd, the Union of South Africa iiself did not wnsider that the Mandate
was still in existence, since it had statcd that it would iidrninistçr the
Territory of South Wcst Africa i i i the 'spirit' of the Maiidate. As a lcgal
contraci betweeii the Union of South Africa and rht: League of Nations,
the 'Mandate had disapwared with the kagague, and thcrc had k e n no
provision wherehy rhe Unitcd Nations becaine a party t o the Mandate."
(GA. OR,Third Sess., Part 1, Fourth Comm., 8Snd Meeting, 17 Novenlher
IY48,'p. 365.)
Cuba
FOUITti COMMTTTEE
Mr. Pérez Cimerus: "ln tiis opinion, however, the rcvised joint resolurion
did iiot make it cIcar thar the United Nations had assumed the Lcaguc of
Nations' responsihility in rclüt ion tu Soutli Wcst Africa, tlie only mandated
territory not yct placed under the trustccship systcm. . . .II shouId be
clearly stated also that tlie reports were sent to the United Nations so that
the Organization could exercise iirs funciions of contro1 and supervision,
in th: same manncr as would have k e n dom by the Leaguc of Nations. . ."
{GA. OR,Third Sess., Part T, Fourth Comnt.. S2nd Meeting, 17 Novembcr
1948, p. 356.)
France
FOUi'1.H C O M M ~ E E
Mr. Gurreou: "Thc French delegation had frcqüently had occasion ta rmll
rhat the trusteaship systern had bctn substituted for rhe mandatcs cysttm.
Oncc the Leagtie of Nations had cciised to cxist, sr> had the iiistitutions
which functioncd under its aegis. When the Uiiited Wations was set up,
t hert: remained nothing of the Covemnt of the League of Nations cxcept
itsmoral inltiience. The niandates systcm wds rcconstitutedas the trustee-
ship systcrn with certain characteristic difierences. . . .
The Soütli African Governrnenr had or1 scrveral mcasions expressed its
dcsire to administer the 'Iérritory of South Wcst Africa in the spirit of the
Covennnt. Tt acccptcd ihe moral obligation of ensuring the well-king and
the ~ievelopiiieiitof the populaiipn, Ieading it in due coursc t o autonoiny
and ulrirnately to independencc.'' (GA, UR, Third Sess.. Part 1, Fourth
Comrn., 79th Mccting. 12 Kovemher 1945. pp. 322. 324.)
India
FOURTHCOMMITTF.E
Mrs. Pmdii: "The provisions of Articlc 80 of thc Charter, safeguarding
the existing rights of thc pcople of South West Africa until a triisteeship
agrerment had been coiicluded, had Io k recognized. Ilne of thox rights.
under the mandates system, had k e n thc cxaniination, by the Permanent
Mandates C:rimniission,o f annual reports subittitted by the Lnion Govern-
rncnt on the administration of the Territory of South West Africa. A
reprc5entative of the Lnion Government had b e n personafly present for
inter-rogation. That right could not be extinguished inerely kcause the
Pernianeni Matidates Commission had c~iisedtu exist." (GA, OR,Third
674 K A M I B I A (SOUTH WFST AFRICA)
Ai,ticIe80 of the Lnited Nations Charier provided, in conncxiun with the

trus:eeship agreements, that . . . .
l i a 1 provision of the Charier clearly safrguardcd the rights ofindigcnous
popirlations and irnposed on the Adrninistering Authorities the duty of
reporting prrigress and of commtinicating to the international cornrnunity
how ihey wen: ruliilling rheir obligations.
It could be maintaincd that since the oi-gan u~hich\\;as to receive that
information, nanlely the CounciI o f the League of Nations, was no longer
in c r i s t c n ~ ~the
, Mandatory Powcr was auiornaiicalIy rclicvcd of its
oh1il:itation to report progress. The CciunciI hiid studied the reports in its
capacity as an organ of the internaiional coiiiniunity; il acted as a ço-
ordiiiating ccntrc for thc othcr States conmrncd, i.e., menibers of the
civitized and orgrtnized interiiational collectivity. The dissolution of the
Lea::ue of Nations rneanr the disappearance of only the cornnion CO-
ordiiiating ccntrc. But that co-ordinütiiig ccntrc wüs oncc morc in existence:
it w;is the IJnited Nations. and it t a s tlirough the organization that the
Unirrn or South Africa shoiiId fulfil its obligations towards the inint-
national cornrnunity and give an account of its administration." (GA, OR,
Third Sa.,Part 1, Fourth Comm., 78lh Meeting. 1 1 Noveniber 1948, pp.
31 1-312.)
M r . d'Aquino: "Souih West Africa, ho~~ever, was no1 a sovereign Siate,

but a tcrritory p l a c d undcr the mandatcs systcm of thc Leaguc of Nations
and, consequent l y, \vas undei the supervision of the cornmuni ty of Natioiis,
narn~ly,rhe General Assembly." {GA, OR, Fourth Sess., Fourth Comm.,
132nd Meeting, 22 h'overnkr 1949, pp. 223-224.)
Canada
FOURTHCOMMITTEE
Mr. Blois: "The Canadian delegation was subrnitiing fhar amendment
rEx;xliressesregret that the Govemment of the Ilnion of South Africa has
not coniinud . . . io subrnit rcports un i ~ sadrsiinistration of the
Terriiory of South West Afrim for the information of the United h'ations']
h m u w the use of the word 'repudiated' iti the Indian texi gave the irnprcs-
sion that ihc Union Govcrnrncnt was under a IegaI obligation to subniit
inrormation, which was not the case." (GA. OR, Fourth Sess., Fourlh
Cnmm., 139th Meeting. 28 November 1949. p. 268.)
Cuba
Mr. PCrcr 'isiieros: "The prestige of the United Nations was at stakc just
as [ha1 uf the Leaguc of Nations might have b e n in sirnilar circumstances:
thc iighis and duties of the United Nations were the wmc as those of ihe
L e a ~ u eof Nat ions fut bot h orgiiriizaiions represented the iiiternariona1
coniniunity. The substane of the qitesticin was clear: althoiigh there nias
no I'rusteeship Agreement in reswct of South West Africil, thcrc rcrnained
the old Mandate which provided for o çeriaiti nuniber of oliligations.
Those had to be obscnocd and the Powcr concerned could not denounoe
thent hy unilateral action. Under the t e r n s of t h e Mündatc, thc Union of
Sout.h Africa had k e n requircd tu transmit information to the League of
WRLTTENSTATEMENT OF SOI:TII AFRICA 675
Nat ions, because it was the inlerna t ioiuI çommuniry's duty to be inforn~ed
how the territorles i r t:ntrusted to the üdniinistrat ion of somc countrics
tvcrc k i n g govcrncd. I ' h t ii~fnrinationwas to liave been exaniined hy the
international coinmuiii ty; the populations conwrncd had had the rjghi to
wnd petitions; Furtherinorc, the right of petition had been recognizcd as
'an csscntial human righi' hy the Gei~eraIAssetribly at ils lhird c;ession . . .
as a result of a proposal made by the Ciiban and French rielegations. . . .
No rrusteeship agreeriicnt had in fact heen concluded in respect of South-
West Africa. Attentiorr should be dmwn. however, ici Articlç 80 of the
Charter which explicitI:i statcd . . . It w a therefore cleür thüt the siiuarion
which haù prevailed under the mandates system should not be changed in
the case under discussion. The righis or iht: people cunccrned were clearly
cornprornised wheii the international corninuniv ceased to receive infor-
mation on houuthey wc:rck i n g administered. and whtn the penpIe them-
selves cnuld no longer excrcix thcir right of pctition." (CA, OR, Fourth
Sess., Fourth Corrini., 130th Meeting, 31 Novemher 1949. p. 216.)
PI.F.NARY
i the third session of the Ceneral Asxrnbly
M r . Lely: "He recalled ~ h a ar
the represcntativc of th: Uniori o f Souih Afrim tiad siatcd ihat. when the
C;overiiment of tlie Ijnion of South Africa h aid g i ~ c nan assurance that it
would scnd information on the '1-erritnry, i t had made a speciftc rcscr-
vation that the sending o l such informariun would irnpIy no minmitment
for the future atid would not be indicative of accountübility to the United
Nations.
[He] felt that that sraietnent spoke for itself. The sending of information
was a ~~oluiitary act on the part of the Union Govcrnrnent. If tliat was so,
and he IxIieved [ha1 it was. then the Union Ciovernment had nor rcpu Jiated
any prcvious assurance." (GA. OR, Fourth Sess., 2591I Pienaof Meeting,
6 Decernkr 1949. ji. 5:iO.)
United Kingdom
" I t could nul br: said thai the Govcrnrnent of the Lnion
Sir T e r ~ ~ tSliot~e:
ce
or Souih Arrica had repudiated its previous assurance siilce i t had çom-
plete liberty to decide v:hether or not t o transmit inTormarion." {(;A, OR,
Fourth Sess.. Fnurth C:omrn.. 1 35th Mccting. 74 Novcmbcr 1949, p. 247.)
THE EARLIER OPINIOYS AND JUDGMKKTS CONCEHNING
SUPERVISION OF SOUTH W W C AFRICA
1. In Chaprers VIi and VI11 above, the South African Goirernment has given
its reasorts for çontending that its obliga~ionto report and accourt! to thc
Council of the Lertguc of Nat ions lapsed on thc dissolurion of that organi7ation.
This conttnlion runs cnuntcr to thc decision of the ~nyjorityof the Court in rhe
1950 Ad\isory Opinion '. The 1950 Opinion was the subjecr of two later intcr-
pretat ive Opinions in 1955 and I Y56 3. 'I'he question whct hcr the General
Assemblq of the United Nations hsd succeeded to the supervisriry funclions
previously vesfcd in thc Council of the League (as was held by the majority in
1950) wa; again dehated in both phases of tlte Sourk IVe.?t Africa cases. Al-
though the Court itself (as distinct from individual Mcmbers thereof) made no
expl icit pronounccmcnt on t his issue either in 1962 or in 1 9 M 5 ,rhere is much
of rclcirance thereto in bnth sets of Juùgments and in some of thc separate
opinions (both conctirring and dissenting). This Chapter wiil be dewted to an
anaIysis ~f the 1950 majority opinion and to a reilsoned statcmcnt of the
grounds iipon which it is submitted the Court shouId in the present cüsc depart
the~thni.
2. The general ruIe as to thc cffeci and weigitt of advisory opinions was
statcd as follows by Judge Wiiiiarski in the Prncv Treniies a q e :
"Opinions are not formalty binding on Staies nor on the organ ivhich
rcqu:sls thein. tIiey do not have the aiirhoriiy of rrs .iiidicnfn; but the
Cou.:t must. in view of its high mission, aitribute !O thcm great tegai vaIiie
and a moral authority 6.'+
The exteni of the "tegrrl value and moral aiithoriry" of advisory opinions is
not, howevcr. a constant I'actor but depend! cin circurnstiinces. In this regard,
Edvard t Iambro statcd :
". . . Advisury Opinions, even more than the judgmcnts of the Court, wiil
k jiidged on thcir intrinsic merits. A judgrnent of the Court, even if it is
not pcrftxt and eveii if the reasoning can be cri ticjsed, can serve a usefril
purpose becausc it will put an end to a dispute betivccn two or more
States. An Advisory Opin~on,on ihe othzr Iiand, dot? not serve lhis pur-
-. -
. . -...
lInirriiuf innul Sruiits oj-Souili Wesf Ajkirri, Adi:isury Opinion, i. C.J . Heporis 1950, .
p. 128.
Vuring Procedurs on Questions rebiirzg tu Rcyortx rind Pciirions conctr~ingthe
ter rit or,^ of Sottrh West Afrira, Arfvisory Opinioc, 1. C.J. Rrpurrs f 955, p. 67.
Ad?njssibifi~yof Hearing.~of Petilioners &v flic Comtiiittce on Snirrk Lt'esr Africa,
Advisary Opinion. I.C.J. Reports 1956, p. 23.
+Sorirh W ~ SAfricu,
I Pruii~rinnty Objectioff~,Jud~rnent, I.C.J. Repor~s 1962,
p. 319.
Surrlli W P SA~frica, Secoird Phase, Judpneni, I.C.J . Reapar ts 1966, p. 6.
"nt~rprciarion of l'puce T~eorieswiili Bulgaria, Hzingary and finrania. tYr:it
Pknsc, Arfi,isory Opinioii, I.C.J. Reports 1950, p. 65.
pose. It srands or faIls with the IcgaI arguments that can he deduced from
the reasoning of the majority . . ,'"
3. It folloivs froin tlle principles wl out in the above passsgcs ihat, although
the Court wvuuld not liglitl:; dcpart from a previous opinion, it would do so if
good rezqons existed. T t w<itildbe impossi bIe to define in exact terms th<: cir-
cumstanRs wIiich woiild induce a Couri Io adopt siich a coursc. A distinction
wnuId hrivc to bc made between an opinion on a purc point of law as agaiiist
one invafving facrual clcnients as well. On questions of fact a Coiirt's findings
arc nmss'drily govet-ned by the eviciencc knawn to it, and, whcrc res jrrdicata
is not appIicable. a Court does not regard it as a derogation fiom its aiithority
if in subsequent proceedinp it cornes lu a different conclusion in the Iight of
a fuIIer prcscntütion o l tht: facts. Pure yuestions of law are on a somewhat
different footing, although even in that reswct, it is submitted, the Court
wuulù not fuIlow a previous opinion clcarly based upon faiiIty rcasoning. The
existence OF disscnting upiiiions might wcakcn rhc aulhority of an advisriry
opinion', as rnighi inmnsi!.tent findingç by Judges in subsequtnt prowedings,
oi critical commenrs of eminent autharit ics on internalional Iaw.
4. The various featurcç ineniioned in the precediiig paragraph as affecting
thc authority of an advisory opinion, art: ai1 relevant to thc prcsent case. In
the cotrrsc of the years sincz 1950 a grcat mass of facts. not placcd kfure the
Courr in rhat year, have be:n uncovered hy new rescarch, and the correctness
of the majority opinion reiwding transfer of Ihe Ixaguc's supervisoty func-
tions has k n debated witA a thnrriughncss and dcpth out of al[ proportion
to that involved in the praedings leading up to that Opinion '. in the resuIt
therc is now available a gn:at deaI or factuaI material, whularIy and judiciai
comment, and othcr feaiurt:~such as thc coursc of the proccedings Ieading up
"Thc Authorjty of thc Adcisory Opinion of the International Court of Justicc".

Itrrcr'iiorionnl nnd Compurafiw Las Q u a r ~ ~ r /Vol.
y , 3 (I954). p. 21.
= This pciint was stressed boy Hnmhrri, Inrernotionlii and Coir~pnrûrii~e
Luw Qurir-
rerfy, V(11. 3 C I 954). p. 21.
In his stparate opinion iri 19% Judge Jessup said (ar pp. 350-351):
"IF it be thought that in advisory procccdings thc Court does nor rcccivc ar
a statcrncnt or argunient as is prcscntcd in cvnieniious procecdings. i l may
fiitl
t 1'150 fhc volurnc of Plendings, Orui Rrgumefi1.sotrd D o r m e n n
be notcd ~ h i i in
on the qiiesrion of the 1t;teunnfionalSrarits ofS(~it!hWcst Africa, ciintains 350
pages. Tn the course of the presçnIu~iciri,Dr. Steyn, reprewntative of the Union
nT South AFrica, spoke a1 four sçparate sessiom of thc Court.''
It is intercsting to note that tdhereas the volumc uf Pleadit~gs,Oral Arfu~nenIsund
Docu~ricnn (which incltidcs Dr. Stcyn's oral siiiterntnt) in the I950 pr<icceding~
rclatcs ici alt the issues ~ h e nYxforc thc Court, and inçludes priwly fcirnial niairer,
the vt>lt~rnesof Plrudin.rs, Ur4?/Arguitienfs and Ducüinrnrs in the 1966 cootentious
prmrrdings on the merits ji.c.. exçluding ihr Prelimiiiary Object iolis phase) contain
over 700 pages of facrs and nrgunletits relatiiig to the qirestion of adminisrrativc
supervision alonc. I f thc treainient OC tliis issue in 1950 iverr isolated from niattcrs
not direct ly conccrncd thcreoi tIi, tlie ratio bctween the attention givcn therelci in
1963 to 1906 as against thnt given in 1950 musr he OF the order of six tir seven Io one
(and ~ h treatmrni
ç in ihe prcsmt prwee<Iingsmight be even longer siil!). The South
Afriçan Clovernrrienl dcies no: of coiirse çtintçnd that a quantiiaiive cornparison of
this type is rii anÿ pzrticular signifimncr in iirelf-indced this aspect is rnentioned
Iiere oiily because Judge Jtssrip seerm IO have artachcd some inipoi-tance t hereto.
What is iinportant is a qualitati\le analyssi oof matcrial or which th? Court WQS
unawarc, or to which ii <[idnot advcrt, or which was (lien not ?et in exislçnce.
This ivill be essaymi hbelliw.
578 SAMtBIA {SOLTH WEST AFRICA}
to the 1365 Judgiiient and opinions, whicli in the siibiiiissbit of tlie South
African Govcrnment do not only render necessary a rr-appraisal of the cor-
rectness of the 1950 majoriiy opinion, but would lead this Court to a diKcrcnt
cunclusiori.
The facts, and thc conclusions 10 be drriwn from thcm, have already been
considererl in Chapters V H and \.:III. In the prewnt Chüptcr rcfcrcncc wilI
bc madc to thun unly to indicate their k a r i n g on thc previous frndings of the
court.
As regardr schalarly writings, thc prcsent <-Ihapter wiIl contain a nurnbcr
of extrsctj frorn conirnenis on the 1450 majority opinion. As witl be noted
they are ~nifornilycrirical of ihr findirig of thc Cuurt concerning transkr or
supervisory powers. Indeed, the South Arrican Governmeni is not awiirc of
any acadcmic aritiny wliictl contains a rcasoncd support o f or wricurrence
wiih the ~ a i dfiiiding othcnvisc than by applying a teIeological principle of
'.
"ftIling the gap" As has been ntited, such a principle has k e n rejecred hy
this Couri and by thc ovcrwhclrning weight o f contcrnporiiry Icgül opinion'.
Finally, the South African Government deals in this Chapter with the judi-
cial pronounwments s i n e 195Ih In this respect also. il will bc submitted, the
effect of iuch prnnounccnicnts kas on the whole heen to dcmonstratc ihc
untcnabitity of the reasoning of the majorit y iti 1950.
B. AwIysis of, and Comment on, the 1950 Adviwry
Opinion
5. The rnajority of the Mcnibcrs uf the I-:ourt in 1950 came to thc con-
clusion:
". . . Ihat the Cieneral Assernbly o f the Urtited Nations is legally qusIified
to cxcrcisc the supervisory functions prcvir~uslyehercised by the Leigue
of N~itioriswith regard to ihe adrniilistration of the Territory, and Ihat
rhe Union of South Africa is undcr an obIigation to suhmit to suyiervision
and mntrol of thc Gcn-rot Assernbiy and to rcndcr iinnuül rcports to it '".
At the ne:it page cf the Opinion foliowed a coiiseqi~cicntialconclusion regarding
peririons, viz. :
". . ,
In view of the result at whiçh ihe Court lias arrivcd with respect to
the exerciçe or the supervisory functionç by IIte United Nations and the
obligation of thc Uniun Govcrnment ta submit to such supervision, and
haviiig regard to tlie fact that the dispatch and exai~~inatioi-iof petitions
form a part ol' thal supervision, the Couri is or the opinion that petitions
are IO bc transmiiicd by that Governnicnt to thc Gcncral Asscrribly of
the United Nations. which is legally qualified to deaI with ihem
6. The Court's reasoning in support OF ils above main conclusion, is set
out at pagcs 136 to 137 of ihe Opiniutl. T t ctinirncnccs wiih a rocopnition of
". . . the fact thal the supervisory functicns of the irIeagcie with regard to
mandatcd tcrritorics no1 placcd undcr thc ncw Trustccship Systcm were
1 Vide, r.g., Daliiii, Ci.. V d k ~ r r e r (1958),

b~ Vol. 1, p. 565.
Vid~,Clinp. II, slrpr-a.
"~ttrrcarionni Srnrr1.r of Sourh Wusi Ajiira, Arfuisor.v Opinion, I. C.J. R ~ p n r r sIPSO.
p. 137.
' Ihid., p. 138.
WRITT1.N STATESltST OF SOUTH At-KiCA 679
ncither espressly rransl'crrcd to thc Unitcd Nations nor expressIy assumed
by that arganization '".
't-hcnfolIow what in the C:oiirt's wosds "Nevertheless, . . . seem to be decisivc
reawrl~"Tor iir cunclusion. These can bricfly bc surnrnari?edas ivllows:
(i) The obligatiori to acwlit "intcrnat iunal supcrvjsion" and to submii reports
is an itripnrrnnr part of the Mandates Systein~otisideredby the autliors
of the Covenant IO b: rrrpir~d.for rfl2rfiue perfornlmice of tlie sacicd
trust, and sitnilarly rcgurdcd by the auihors of the Charrer relative to the
international trustccship systeiii. Tlte "necr.s.si!yjviir sriperi:isiolr" cannor be
üdrnitted to have djsappcared "merely because the supervisory organ has
ceased io exist". whcn !Iic United Ndtions kas annther international organ
pcrforming similar. t hough nul idcntical, supervisory functions.
(ii) "These gerteral consirleraticins" are confirmed by Article 80 I I ) of ~ h e
Charter, which cannui "effectively safcguürd" the righis o l the peoples
of rnandated tcrritori~s withoul international supcrvision or a duty Io
render reports to a süpervisory organ.
(iii) In i l s rcsolution of 18 April 1946, concernjng mandates. the Assemhly of
the Lcague of Nations gave expression tu o "corr~spoiidi)gview". In the
Court's view "This rr.roiiifiori jirestrppows zkrr ihc sripmr.isnry j i ~ t ~ c r i o m
rxercise0 by fhc Lraf:ce krorrfd fie rnketi over hv rhr llnifr*ri :\'nfiorrs =".
(TtaIics added.)
(ivj The tieneral Aswnibty of the United Nritions is rendered corripctent tu
exercisc such supcrvisinn and 10 receive and cxaniine such reports hy
Article IO of the Charter.
7. i t seems evidenl lhat the Court could not have rneant that e x h cf thc
abovc four "rcasons", or titages in the reasoning, was to bc regardcd as in
itself afording fui1 justificaiion for thc conclusion arrivcd ai.
Sn, For insiance. s~rigcljv) is conccrncd merely witli [lie deterrninaliun
witJtiir the Utiiied iVariotts of an organ wh ich wouId he compcient to undcrtüke
the suprvisioii : but this wi-iuld havc rio relevanw: in ihc cnquiry unless there
shotild be an obligation to subrnit to Cnited Nations supervision. Siage (iv)
c1irIy prococds on the ba;is that such an obligation has been affirmütively
estabiished by tlie first tlirei: s~üycs.
8 . The firsl stage in the i'easoniiig is descrikd in the Opiniori i tseIf as crn-
bodying "gcncral considemtions". As nored abovt, rhey relate to "effective
performance'' of the "sacrvd rru~tof çivilization". At the out set the Iearned
Judges sraie in etfecr that tlie autliors of the Covenant considered that inter-
notiuniit supervision of ni;iridatory adniinistration was ncccssary for such
effective perforrnaiice; that thc authors of ihc Charter had in tnind the same
necessity reiarive to the trurteesliip system; and that such necessity continues
to esisi dcspitc disappearaiice of the sirpervisory organ iinder thc mandates
systcm. Tlrese stateiiients arc clcar, and wcrc iipparcntly mçant tn suppIy a
hasis Tor possible application o f the principle of effeciivenzss, in the xnsc
ihüi thcrc can bc said rn be a p ~ s u m p t i o no r general likclihood tkit the inter-
cstcd parties would have inicndcd to kccp alivc. aftcr dissolution of the League,
an obliçarion on ihe part of mandatories to sribmit to international super-
vision rcgarding mandator) administrarion. In othcr rvords, the consideration
of etrectiveness was invokccl as a factor in reaçoning tawards a passihie impli-
cation of racit ayrcement.
9. The riext gcneral consideration i s the existence within the United Nations
of an organ prforrning supervisory functions-for which reason i r c a n o t be
"adrnittcd" i h r thç obligiiun to submit to supcrvision has diuppcarcd niercly
hecause tf:e bague supervisory organs have ceased to exist. 'The suggestion
swrns to be that, in the light of the consideration or effectivene= alreüdy
stüted. thr intcrcstcd partics rnight wcIi (or would probably) have intended
that supervision of mandates should be continüed by this iiew orgin. Again
this is reasoning by inFerence relative to tacil inlent.
IO. CIcnirly the "gcncral considcrations" wcre not considered conclusive.
If they shrruld be read as purportiiig t o be fult-justifiwtiori. by theinselves, for
rhe Court's conclusion in question. they woiild hüve ZO be interpretcd as mean-
ing in cffca that bccausc international supervision is dcsiriible, t herefore the
Court Iiolds that jt must exist; and, rhat because the Uiiited .la:jons bas an
organ perhrming supcrvisory funclions under a trristeeship system, whiçh are
siniiIar to, though not idcnticaI with, the supervision previously exercised hy
the League organs in respect of niondztes, thcrefvre the Court IioIds that a
mandatory previousIy obliged to submit IO League supervision miist now be
obligcd to submit, in rcspect of its mandate, to supervision of the United
Nations organ (despite the fact tliat the rnanctatory is not obliged and may
not bewiIIing to submit to the trusteeship system). If this wcre what the Court
intended to signify, it ivould mean thar rhe Court in effect forsook its funcrion
of deciding in accordance with Iaw and assumcd ihc rote of a legislaior. It is
submitted ihat such an intcrpretarion of the Court's reasoning cannot be
jiistified. The Court could hardIy have ignored the universa1 principIe of law
and logic tliat a party which consenls to an obligation of a ccriiiin content,
cannot, merely for rhat reason, and without fresh consent or agreement on
its part, be heId liable to a n ohIigarion of a substantially different content1.
1 I. Nos d w it seem that the Court cuuld havc intcndcd i o iipply the prin-
ciplc that an obligation is not cxtinguished by impossibility of performance
rvhen the impmsihiIity affects only one of two or niore equivalent rnethod~
or cotnp1i;ince therewitIi. That principlc clcürly cannot find application in thc
present case, for the very reason that the ohligition was not one to suhmit to
"internatinna1 supervision" but IO the specificsupenlision OC particiilar League
organs. Sribniission to United Nuiions supcrvision would thus bc a diircrent
obligation in substance as welI as i i i fornr, and not a inere equivalent method
of comptying with the same obligation. That thert: were certain inherent and
unavoiclabie ditrerences, appcars to have bccn acknowledgcd by thc majority
of the Court in the 1955 Advisvry Opinion. particularly in the following
passage :
"Thc voting system is related to the conlposition and functions of the
organ. It forms one of the charactcristics of the cunsliiution of the organ.
Taking dccisiuns by a two-thirds rnajority vote or by a simple niüjority
vote is one of the dginguishing features o f the tienei'al Asseiiibly, while
tlie unanimity rule was one of the disringuishing featurts of the Conndl
of !hr Lrayuc of Nations. These two systerns are characteristic of diffcrcnt
organs, and one systeni cannot be subçtitirted for the otlier without con-
stituliona1 amend ment. To transplant upon the Gcncral Assembl y rhe
uniinimiiy rulc of the Council of the League would not h e simply rhc
'Vide Chap. VIl, paras. 49-51, siipm, xs to the material difference in form and
substance bctwccn an obligation io subniit ro 1-eague supervision in respect of
mandaies :ind one tu submit to Unitcd Nations supervision.
WBCI-I'ENSIA'IFMES'~ OF SOU'FH AFRICA 68 f
introduction of a prozedüre, but would amouni to a disregard of one of
tlie characteristics of [he Gtncral AswmbIy. Consequently the question
of conforntiiy of thc voting systcrn of the General Assernbly wilh that
of thc Councij of th,: League of Natioiis prcsents insurmountüble diR-
culties of a juridical rratun.'."
In thc rcsuIt it scenis elrident tliat the first stage in thc reasoning should be
interpreted as not having 1xen intendcd to be concliisive in itself but rnerely as
affording indications of prnha bili ty which, togethcr with othcr rclcvant factors,
could justify an inferene of tuçi t agreement rcndering mandatories obliged tri
subinit to United Nations supervision.
12. The second stage in the reaîoning refers to Articlc 80 (1) of the Chartcr,
and hcilds that the gerieral considerations are "confirined" by this clause "as . . .
interpreted above". 'rhesc Iast words relate to an earlier passage which dis-
tingujshcs the açtual conir:nt of the clause from somcthing "prcsuppuscd" by
it, namely that the rights t i f Sraics and peoplcv regardiirg mandates would not
l a p x tiutomatically on dis:dut ion of the League 2 ; ihe carlier passage proceeds
that "it otivioirs~was the inrutriun tri sareguard thc rights of States and pcoples
iinder al1 circumstançcs iind in al1 respects, untiI each ierriiory sliould lx
plüccd undcr thc trirsteeship systein 3". (ItaIics addcd.) The reasoning regarding
supervision ' then proceeris by stating rhat the ""purpose tmi.ri h v e heeii to
provide a real prorwtion for thosc rjghts; but no such rights of the people5
couId bc cfictive5E. .suf~guarddwithout iiiternational supervision and a dury
tn render reports to a supervisory organ (Italics added.) Again, thercfore,
i r prirp0.w relèrred t o unexpreçsed. i .eV,
the prrsitgpnsirinn. thc ob~iousi t ~ t e ~and
tacit intcnt, and the tffecrirrr sidegiiarding was employed as a factor of prob-
ability in reasoniiig towards an implication rcpa~dingsuch intent.
In the Sninh WP.SIAfiira cases the Applican t s at onc stagc xcrned lo rely
hcavily on ArticIc 80 (, 1 ) but after the Judginent and Opinions on the PreIirninary
Objections (and partiçulai.Iy the discussion in the joint dissenting opinion of
Jiidges Spender and Fiurnaurice on the effect of Article 80 (1)) thc AppIicants
concedecl that this Article could not havc had aiiy positive effect to enable
supervisioii in respen of r,~andatesto survive tlte dissolulion of rhe 1-eague 7.
Thcy, haicret.ver,apparentl:, stiI1 attribi~teda diffcrcni (and thcrCforc, i n iheir
view errrincous) attitude tci tIie Cour1 in the 1950 Opinion '. If they were right
in tlieir interpretaiiun of t hc 1950 Opinioii. the Court, it is subrriitied, clearly
erred in rhis vital respect, and this in itseIf would diminish if nui dcstroy any
persuasive value wtiich t ht! Opinion mighi othcrwise have had.
13. Tlie ihird stage in thc reasoning mncerns Ihc 1 s t League AssembIy
remlurion regarding mandates Y At'ter giving the contents of its !hird and
fourth paragraphs, the Opinion siai~y:thc conclusion : ''This resolution pre-
supposes thai the superviscry functioiis exercised by the League would be taken
' Yoring Procedure on Qwsfions rdoting i o Kcport.s und PcIirion~-concer~ingtke

Territory of Sortth W~J-rAfr icri, ..ld~-isor~
OpNiion, I.C.I. Rrpvris 1955, p. 75.
= Inrernaf ional Sfulus uf 5011thW s l Africa. Arfvisur,~Opinion, I.C.J. Rcporrs 1950,
pp. 133-1 35.
Ibid., p. 134.
' Jbid., p. 136.
Ibid., pp. 136-137.
Erhiopin und I.il.eriu v. Thr Repirhfilir O/ South Af~ica.
Yi& Chap. VII1, para. SI, stzgiu.
' For i f s t e x I , vide Chap. VIII, para. 26 (f),supro.
over by the United Nations '".
(Italics added.) Oncc more ihe rcfcrence is
cIearly to an inferred. tacit intent ; the word "presiipposes" renders this cIear.
as also the racl that the resoiulion itsclf made iio meriticin of any trander o r
taking over of supcrvisory functiom.
14. To stim iip, the Court was apparently ârgiring front what it considered
10bc probabili~iesinhercnl in objective fcaturcs rcfcrrcd to by it in the tirs! two
stages of its iAeeasoning,and seeking to draw from these probribilities an iii-
ference of iacit agreement hetwcen the parties 10 the Charter of t h e United
Nations to ,:hccffcci that rnandiltories \vouId bc obligcd tosubrnit to ~ h ljnitcd
c
Nat ions supwision, pznding trustccship or other agreement with t hc Litited
Nations. And, in the third s t a z ofils rcasoning. it sought to draw a siinilar
inferencc oi'ü corrcsponding tacil agreement o n thc part of the Mcmbcrs of the
League of Vations at the time of its dissoIiition. It is coiitended that neither of
' Lhese inferences is justitied, parricularly in rhe liglrt of matcrial now avaiIable
which was not bcforc thc Court in 1950, or tn which the Court did not then
advert.
Tn his jiidgnient in the GW oi. Re.r v. Blom. Jiidgc Waterrntyer, a South
African Jutige of Appcül iind Istcr <:hier Jusrice of the Union. stütcd as
fol lows:
"ln xasnning by inference there are two cardinal rules of logic which
cannoi Lx ilpioredi
(1) Ttir: inference souglit to k drawn mus1 be consistent with al[ ihe proved
facis. If i t is not. Ihe inference cannot be drawn.
(2) Thr: proved facts should be such t b t ihey exclüde every reasonable
infr:rmce from them save ihe onc souyht io bt: drwn. IF they do noi
cxcltide olher reasonable inferences, then there must be a doiibt whelhtr
the inference sought to be drawn is correct '.-'
These rules of logic are cItartrIy of grncral application. In pariicular they are
appIicd by courts of civiIizcd States IO the qu~stionwhether a tacit agreement,
or a tacit ierni in an express agreement, c;rn justifiably be intèrred a r implied in
a given case.
When regard is had IO ihcçc prinçiples and Iogical coiisidcrütions, ir is self-
evident that in the absence of knnwledge of cerr:iin relevant facts, a conclusion
arrivecl ai in rasuning by inference rriay be vitally diffcrcnt from what ir wvuld
bc if al1 ihc facts wcre known and considered. 14 number of facts which were
eiiher not hefore the (-:clurt in 1950 or were not considered in the rnajority
opinion and are of pariicular importance in khi5 rcgürd, arc dealt with in the
ncxt succecding paragriiphs.
15. 'I'he tnajnrity conclusinn a î to the presuppc>sirinn invrilved in the last
I.eague resoIuiicin on rriandar6 *, was an intcgral part, if not the crux, of its
reasoning in concIudiiig that thc kague's supen7isory functions had by tacit
agreement been transferred to or assu~nedby the United Nations. But the in-
trod uction of t he fucts cuncernifig the ori~iriaiChinese pruposti/ ', w h ich Lere not
beforc thc Court in 1950, puts a compleieIy diff'erent complexion on 1 he tacit
inteniions of the Leagtie Menihers at the last Scssion. I t shows rhat what thc
Rrx v. ,Yioluni. 1939 A . D . t88, ai pp. 202-203.

Vide para. 1 3, strpra.
V i d ~Ci-ap. V I I I , paras. 60-07,srq~rcland earlier paragraphs tu w h ~ ç hderence
i s lkere macle.
W R ~ , STATEMEW
N OF SOUTH AFRICA 683
Court cnnsidcrcd to bc a prn:suyipositioiior tacit understanding, Iiad k e n sought
to be achieved hy express rtsoIuIion. bur that rhe proposa1 ro thvt cnd could not
k prmeerteù with kcause i t hcarnc plain that ccrtain of the parties would no1
'.
agree thereto Morcovcr, the attention of the Court N7asno1 draivn to the
con tcnts oft hi: report of th,: Board of Liquidarion in reipect o l mandates tvhich
reflected a conwption thiit rhe mandates systeni had '-bzcn brought to ti çlusc"
ncr to rhe absence of any relèrence to mandates in Voluine 1of the United
Nations Treaty Series. in iiiarkcd contrast to other malters in respect of which
agreements for United Narions successirin or üssumption had been wncludcd 3.
All ihese features canfirm tbc absence of atiy taci t agreerneiit or presupposi tion
conccrning ii Iranskr of supenijsory lunctions from the Lerigue ro ihe Lnited
Nations.
15. The mmbined effect or the above-inentiutied features not only destroys
al1 poss~biliiyof iindirig in iavour of siich a presupposilion: ir aIso throws such
light on other aspects of the final h g u e prnceedings4 as tu render cIear a
conlrary understanding on rhe pari OC ~ h eLeague Meinbers, viz., rhat there
wouId bc no rcporting, ücrountiiig or supervision pcnding "agreerneni" iipon
"other arrangements" as between each mandato- and the United Ntiiions.
In tiirn, this contmry tin&r:;tanding in itsclf cffwtivrly rebuts the prcsurnptions
or prribabiiitics rcgardiny ~ffecti\~eness, as relied on in the m3jority's reasoning
concerniiig the "genenl ccnsiderations" and the "purpow" o f Articlc 80 (1)
of the Charter For Ihe majority of thc Lciiguc Mcmbcrs, including nII nian-
dataries except lapan, had been invoived in the es~ahlishmmlOF the United
Nations and the agreeinent iipon ils Charter. Consequent ly their undcrstünding
üt t hat t ime could hardIy have bcen the cippositc from what it was shortly
afterwards at the dissolution of the Ixague.
17. The lasi-itientioned f.ictor, bearing on the tacil intent of thc foundcrs of
ihc United Narions, is enhinced by the second sct of façts nul fully prcsented
to the Court in 1950 and appaiently not wnsidered hy it ai all, i.e.,the powers
and funciions sciught i o be grantcd in respcçt o l mandaies ta thc Tcmporary
Trusteeship Cornmittee an-3 the Trusteeship Council itself. The two United
States prciprisals design& t > empciwer the Teiiiporary Tmsteeship Cornmittee
and, alter its esiabtishment. the Trustccship Council, "to receivc and cxnniinc
reports subn~ittedby mandatory powers with respect tn such territories under
mandate s have not b e n placcd undcr the trusiecship sysieni" were abandoned
It is instrttctivc ta notc tlre cluse siniilarity between thc wording of rhc prcsup-
pos~tionor tacit itndcrstanding found by the Court. and the express tcrms of thc
first Chinrse clraft propusal. The t950 rnajority opinion stated that thc rfsolutiun
preiupposrd ihal:
". . . flre s u p ~ r v i ~ ofinci l i I ~ I PL P U ~ I Iwouiif
r y ion.?~ x ~ r c i s etry P bP tuken ri v e r &yrhr
Uiiired Nnrions". {Italicr added.) (Intrrnof ionai Siaius of Sotilh IVcsr ~ f i i c u ,
Advi.~ot.yOpinion. I.C.J. Rt>purf~1950, p. 1 37.1
The Chinew draft prriposal had considcrcd:
". . . ihurthe L P U ~ I I Pj:inciion
'S rrrrifnrirr sfiuitld b~
of superrisinq nru~~ri<ried
irnns/erred io the L:nircd ,Xuiiorrs. .
." {Iialics added.) (Vide Cliap. V l l I , para.
26 jr), srrpra.)
a Vide Chap. VJII. para. 69. sirpro and carlicr parasraphs ici which rcfcrençe is
t here made.
Vidc Chap. V [II, para. '.'O. sripra and çarliçr paragraplis io which refrreiicc i s
rhcrc made.
' A s dcalt with in Chap. vIII, sec. C.supru.
Vide para. 12. rtipra.
by thejr pioposers, clcarly because they did not prove acceptable to the other
'.
Meinbers of the bnited Nations The Court did ncit even advcri to the fact
that there u1asan cxprcss proposal ihai the s u g a t e d Tempoiary Trrrsteeship
Cfimniittcr: was to be ernpowered to "advise the General Asxmbly on any
malters t l i i i t might ariçe wirh regard to the transfcr to thc United Nations of any
functions end respomibilitics hithcrto exercised under the inandates systeni 2"-
which proposal lapsed upon the rejection of the suggestion of a Temporary
Trusteeshi Coinmittee, withoul the substitution of anything regardjng possible
transfer to, or assumption by, thc Unitcd Nalions of any "functions under the
mandates :iystcm".
18. Fin;illy, conccrning rhe tacit inten t of the foundcrs of the Lnited Nations
as well as sf League Membcrs at its dissolution, regard must be had to a tl~ird
set of fact:; not hfore the Court in 1450, Le.. tlie praclicr: of States diiriny the
years 1946 to 1449 and reflected, Nrrrr ulin, in written and oral statements made
on behatf of alarge numher of Stütcs in a varieiy of circurnstanccs: andsituations
and within a relativcIy short time after the estüblishment of the United Nations
and the dissolution of tbe bague of' Karians, when the evcnrs were stiII rea-
sonably firsh in memory. Thcsc stiitcments show unrnistaliably a general
iinderswnding amungst Mem bers of the Unitcd Nat ions rhat no supervisory
functions ~cgilrdingmandates (not mnverted into trusteeships) had k e n taken
over, and ihus refute any suggestion of s gcncral tacil intention to the contrary.
Had ail the ahove fsicis k e n known to the Court in 1950, md the iesignificance
of thcir ccirnbined effect appmçiared, it seems inconceivahle that the Court
could havr: arrivcd at its concIusicin regording an obligation on South ATrica's
pari to suliniit to United Nations supervision.
C.Dissent frum the 1950 Advisory Opinion mncerning

Supervision
1. Minuriiy Opinions
19. Even on rhc basis of the facts More thc Court in 1950, tivo of its Meni-
bers, Sir Arnold McYair and Judge Read, wei-e not preparcd to suhscribe tu
the findini; ihat South Africa was vbligcd 10 stibmit to a supervisory power on
the part of the United Nations, and they gavc fulI reasons for thcir disseni -'.
As far as the South African Government i s aware, these rasons and the con-
cIusions drawn front theni have invitcd no adverse criticism from writers on
internatioiial law. On the contrary, they find coiisidcrable support in thc critiuI
comments of such writers-as wi1I appear from paragrdpks 20 to 27 below.
Furthcrrntire, the additionai materia1 now brought into consideration con-
firnis the correctness of the re~ultarrived at in thcsc rninority opinions.
-- ..-
Vide Clhap. VIII, para. 55, supra. and carlier paragraphs to which referencc is
there niadc.
'.Dm. I'C/EXjll3jRev. 1, p. 56. &'id? Chap. VI11, parsi. 5 5 , sirpro, and carlier
parrigraphs to which reference is [Iiei-e madc.
Intnrnrriin~aiSruius oJSuuth M'es; Afii.cn. Advisory Opitiiori, I.C.J. R~eports1950.
pp. 159-162, 166-1?3.
Vide paras. 1 5 ro 18, supra, and carlier para~raphsto which referencc is rhcre
made.
WR~TTENSI-ATF.MF.NTI>F SCIU‘IH AFKICA 685
II. Opitliotis uf Wrifms
20. Even before the 1950 Advisory Opinion, Hall, in dealing with ttie cffcct
of the dissolution of ihc League upon Mandates, stated, itiier niin:
". . . the supervisory funcrions of the League had corne to an end bcforc
the supervisory functions of the United Kalions could begin ro opcrate,
cspwially since the plan for a temparary trustccship cornmittee had been
rejected in the Preparîtory Cornmission of the L'nitcd Nations '".
In referring to thc original drafi rcsoIution raised by the Chinesc ddcgate at the
last scssion of the League hsscrnhly, which was not proeeded with, he quoted
the Chinese delcgate as saying ihal .the Charter "made no provision for as-
siimption hy the Unitcd Niitions of the League's functions" undcr thc miindates
syslcrn 2.
Aiid he commented finally in regard to the League Asxmbly resolution of
18 April 1946:
"The sipiifimce c.f this reçolulion of tlie Leagiie Assembly becomcs
clearer whcn it is reaIized chat for many months the mast claborate dis-
cussions had been tak:ing place between thc governments as to the exact
procedure to be adopled in making the iransition ktwcen the League and
the United Nations. I t was tlie function of the Preparatory Conimission
and thc wmmimittea~suxeeding it ta make recommcndations on the trans-
fer of functions, acriviliw. and asucts of the Leagüe. AI1 the assels of thc
League had heen careftAly tabulated. AIl its rights and obligations t
ht could
be hqucarhcd to the United Nations and which thc Iatier desired to take
over were provicieù for in thc agrccmcnts ihat were made. But in the cax
of mandates, the Leaguc dicd without a testament ?'"
2 1 . In January 195 1 , ve;y shortIy after the 1950 Advisory Opinion, Manley
O. Hudson wrote as foIIov~s:
"To support its additional concIusion that the Union of South Africa is
obliged to submit to ihe supervision of,and to render annual reports to,
rhe United Nations. i.he Court relied upon a resotution adoptcd by the
final Asscmbly of the League of Narions an Apnl 18, 1945, which was
said to presuppvse thiit the 'supcrvisory functions exercixd by Ihe Leligue
would k taken over b:, the United Nations'. This is hardIy bornc out by
the tcxt of the resolui ion. however. Nor is the succ~ssionor the General
Assembly a nocessary consequcncc of its cornpetence undcr Article 10 of
the Charter to which i.hc Court refers '".
"The Court sccms to have plaoed crnphasis on the compclcnce of the
General Assentbly to exercise suprvision and to receive and examinc:
reports. Such wntpeb:nce can hardly be doubted. Yet is does not folbw
from the conclusion thai the GeneraI AssembIy 'is IegalIy qualified to
exercise the suprvisory functions previaasly cxcrcised by the League of
Hall, op. rit., p. 272.

Ibid., pp. 272-273.
' Ibid., p. 273.
' Hudson, M.O., "Thc Twcnty-ninth Year u l the World Court". A.J.I.I..,
Vol. 45 (January 19511, pp. 1 -36: i i t p. 17.
Nalio~s',thiit thc Union of South Afrim is undcr an obligation to sübniit
to supt:rvision and control by tlie Geiteral Assembly, or tliat it is obligated
to rentier annual reports ro the General Assembly '."
Rcparding thc icapfilicabiIity and effcct o f Article 80 (1) of the Charter hc
reniarked :
"Arriclc 80(1) of the Charter seems to be the principal basisof theCourt's
concluiion tliat the Uiiion of South ATrica niust report ~o the General
Assembly. This arridc providcd t h t , until the conciusion of Triistecship
Agreements, nothinç in Chapter XI-1of the Charter should 'lx construed
in ur (if' iisru tu cilter iti cttfy nirinileu the iighrs ii~lrnrsoercrof an)] stntes or
nny pcopks or the rerms of existing internatiunal instruments' (itaiics
supplit:df. 'The tex! clearly shows an intention rhat Chaprer Xi1 should not
efyect :.ny alteration of righls or terrns. This inicntion was 'entirely negatiilc
in charaçter*.The provision served an obvious purpose when Chapter XII
nf the Charter was drawn up: the Mandare ivas still in force at rhat time;
as ihe 1,eague o f Nations had not rhcn k c n diusolwd. ttny uLtetaticin or the
existing situation wüs a mattcr for its consideration. Article 80 (1) was a
precaiit ionary provision designed to negative the accompIishmen t OF any
change in tl-te existing situativn by rcason tif Chaptcr XII 'in or of itsclf'.
It is ncir siirprising that Judge McNair found it +dificultto sec the rclcvancc
of this article'.
Yet the Court gahrean affirmative ctïecl (o Article 80 (11, turning it into a
positive 'çafeguard' for nlaintaining t h e rights of states and the rights of
the peoples of the mandated territory. Thjs is the more norable because at
a laier stage the totirt slrcsçed the Tniirely ncgaiitivc' characlcc or Article
80 (3, dcclining to say tliat the Latter imposed a positive obligation on the
mandatory even IO negotiate with a view IO the conclusion of a Triisteeship
Agreement .
No attention was paid by the Court to the fact that certain States, which
as Memhers of the former 1-eague of Nations ma); have 'rights' under
Article 22 of ihe Covcnant and undcr thc hlandatc itxlf, had no respon-
sibility for the Charter and have never beconie hleinhers of the United
%atiotis. For example, Pinland, Ireland and Portuçal. which were re-
prexnted ai ~ h final
ç scssion of the AsscmbIy of thc Lcaguc of Narions in
1946. :ire in this category. If their rights are 'maintained' by Article 80 (Il
of the Charter, they have no voice in rhe supervision to be exercised hy the
GeneriiI AssernbIy 2."
22. In Aitgust 1951, followed an article hy Joseph Nisot 3. The Icarned author
statcd, jnlep dia:
"Kciw, what, in actuality, were tlie rights derived by pcoptes from the
Mandiitc and from Article 22 of the C:ovenantn?They were not rights to thc
henefii of absrract çupcrvisit>n and cuntrol. Thcy consisted of the right to
have the administration supen~isedand coiitrolled by the CorrnciI of f h ~
Leagice of AJatio~is,and, in partici~lar, rhc right to ensure that annual
reports were rendered hy thc r n a n h ~ o r yPo\i,cr to tlie C..orrncii of the
' Hudson. on. cil.., 'D. 14.

IbiO., Pi.i4-1S.
Sisor. S.. "The Advi>rorv Oninion of the International Court or Justice on the
~ntcrnati&ilStatus OF iioul6 W ~ SAfrica",
L S.A.L.J., Vol. 68,Part 3 (August 195 1).
pp. 274-285.
W K I T ~ E NSTATEMEN'COP SOUTH AFRICA 587
Leuaite of fVufiilioris, a~ it was, and the iigh t t o send petit ions to thc Secre-
tarin1 of the L ~ I J ~,if I ~Vatinns.
~R Whal h s becofne of t h e x rights? They
have neccssariIy disappeared a3 a resuIt of the disappeüranm of the orgns
of the League (Cour~cil,Permanent Mandates Conirnission, Sccrctariat).
The Coiirt coiild mit correctly conclude rhat such rights had Iieeit main-
rained by Articlc 80, except by contcnding at the urne iinie ~ h a tfor the
purposes of the Mandate for South West Africa, 'thc said urgans had
survived the dissolution of rhe Gaguc. . . . Being unable, and for good
reasons, sa to contcrid, the Court creates riew rights. To the Court, the
rights of peoples ,niaiittained' by Arficle HO is linked tn the Ut~itcdi\'atiorrs
~rgunisafio~ . .t .
According to its tlicsis, it. is because Article 80 'müiniains' the rights
of proples thai these. though Iinked to the I.eague, muu now l x Jwined
linked to the United Nations! To infcr t his from a texi worded as is Article
80 amotints to assuiriing that, witti respect to the mandarcs sysiern. the
Unitcd Xaiions stands as the legal suceessor of the League, an as~umption
inconsistent wirh the djscirssions of San Francisco and with the very frict
thal ~ h Cimirer
e prniides for the conclusion of trustmsh~pagreements '."
Regarding thc rmolution of 18 April 1846, o l the League Assembiy, hc cvn-
t inued :
". . . onc fails to see how ttiis statcmcnt can provide any support for a
suggestion that i t was the Assembly's opinion that a mündaiory Power,
though not bound h:r a trusteeship agreement. was under an obligation
to subm~tto supervision and controI by the United Nations.
This was no more the opinion of the Assembly of thc Lcague of Nations
rhan thar or the General AssembIy of ihe United Nations, which, by ils
resolution o f 9th Fr:bruary, 1946, urged the conclusion of trusteeship
agreements, irnyilyin~:that no implementation of thc principles of rhe
Iriisteeship system-therefore, no supervision or control-\vas possible in
rhe ahentn. of such ayrccrnenis"'.
In the fina[ portion of rhis part of the article, Niwt refcrrcd to ~ h failure
e of
the authors of the Charter4-
".. . to provide for international supervision with respcct tu the obliya-
tions incumbent on i i niandatory Statc, shouId il elect not to constude
such an agreement" {i,c.,Trusteeship Agreement).
He concluded:
"?-hi5 Iack of forecight, ha5 resulted iit tlte pi-eese~itsituation, which the
Court altempis itself to redress, stepping out of its rnle as intcrprcler of
the law to asurne th;rt of legiçlator 3."
". . . the World Court was faced with ihe i ~ u of e wheiher the United
Nalions had becorni: responsjblc for ihe discliarge of the supervisory
function which ihr: League Iiad forrncrIy exerçised in relation to thc only
still surviving inandaie. In support of a positive answcr, the Court could
neither rely on any f,eneral principIe of succession betwcen internaiionaI
person; nor my relevant transaction between the two colleclive iYs-
tems.. . . The stiII niissinglink ~ 4 t the
h United Kations rvas provided by the
C0urt':i interpretation of Article 80 of the Charter of the United Natiuriç.
It was -admitted in the müjority Opinion that 'this provision only says
that ncthing in Chapter XII- shalI be canstnied to alter the rights af States
or wq>lesor the ierrns of existing international instruments'. SiiII, wilh
the assistance of a somewhat debatable presupposition and 'obvious' inten-
tions, ~ h eIast gap was bridged. Tt i s nnt surprising that Judge McNair
should have found it 'difiiciilt to see the relevance o f this AtiicIe'.
Having filIeù ihe legal void which scparated the supervisory fiinctions
of the League of Nations frrirn fhose of the United Nations, the Court
proceecied with its seIf-imposed task of 'judicial legislaiion"".
24. Professor R. Y. Jennings in a paper on "The International Court's
Advisory Opinion on the Vriting Prowdure on Questions concerning South
West Airica2" said, with reîerence to the 1955 separate opinion of Judge
Lauterpacht :
"This aitcmpt by Judgc hutcr:rpacht tu explore thc 1cgal no-man's-land
between the Covenant and Charter takcs lis, 1 think, to the nub of the
dificulty in this case: the virtual irnpossibility of tînding any safe legril
bridge ktween thc League CounciI and ihe Gcncral AsscmbIy of the
United Nations in respect of the suliervisory functions. Tliis is evidently
feIt by Judge Lauterpacht rvhen he says thal 'there may be an element of
artificiitlity' in sumc of f hc voting proccdurcs suggcstcd 'Înasrnuch as they
must of necessity Ieave out of acwunt the differences in the coinposition
of the General AssernbIy and the CoiinciI of the bague' [VotingProc~dure
on Qwsrions rciating #O Reporrs und Petirions ronc~rningthe Terrif0r.v of
Soutir West Africa. AdE'i~oryOpiniotr, 1.C.J. Rfj~orisIYSS, p. 671. -
Tt will be remenibered thal in the 1950 Opinion there were powerful
disscnts from Judgcs McNair and R a d on this vcry point. Judgc McNair
said:
'1 m o t find any lcgal ground on which the Court would be justificd
in replacing the CounciI of the k g u e hy the United ,Nations for the
piirposs of exercising the administrative supervision of rhc Mandate
and thc rcccipt and examination of reports. Tt would amount to inipos-
ing a. new obIigation upon the Union Government and tvould he a piece
of jiidicial iegisIalion. In saying this, 1 do not overIook the cornpetence
of thc GcncrsI Assembly of the United Nations, undcr Articlc 10 of
the <:harter, to discuss ttie Mandate for South-West Africa and to make
recoinmendations cunwrnjng it. but that iwmperenct: depends no[ itpon
ang t.hmry of implied siiccexqian hut üpon the provisions of the Charter'
[irilermrionol Siallis of South West Afiicu, Adi~isory Opirrioir, f ,C.J.
r s . pp. 1 61-1 621.
R ~ p ~ ~ i r1950,
Thc ail.crnptsof thc 1955 Judges to discover t h t 'IcgaI gound' and thcn
to compare in terms of degree. supervision by two bodies utterly dis-
simiIar in kind. seems ro l>e onIy ru dcmoristrate the soündnew and the
wisdoni of thc 1950 dissenis 3."
Schwarzcnbergcr, G . , Inleunario~iafL a w (3rd cd.), VoI. 1. pp. 101 -102.

PubIished in the Transactions O/' the Gr0tiu.r Sociery, Vol. 42 (1956), pp. 85-97.
V b i d . , pp. 96-93.
25. Writing on "Succenion in International Organizationsl", Hungdah Chiu
analysed the Coiirt's majority opinion in 1950 and stated:
"It wt>uId appear . . . that the Court's findings would support the theory
that tlie transfcr of I'unctions bciween internalional orranisations need
not be expreswd; but, under sonie conditions, can k &iplied. For the
convenicnw of preseritation, this thcory wilI be Iiereinafter rcferred to as
Ihe 'iitiplied transfer ~heory'~."
ln discusçing the merits of the "impIied transfer thmry" hc said the following:
"The theory of impljed transfer is open t o several criricisms. First, it
lacks supporl in the prüct icr: or international organisation succession.
Except in the cax of Intrrtiationni Staius of South- West-dfricn,t hcre has
k e n no other instanui of the functions of a nredcceaor or~anisationk i n ~
implied1y transferred to thc sucwssor organisation. ~ e c o n d l ~the , predeI
cessor oraaniwtion riiid the sumssor organisation are the ~raduclof
multi[iite&l treaties, ihc parties to which a r e iiot identical, s8 that ihey
are legzlly two separsite and distinct entities. It is true that legal coniinuity
belween the two cntities can lie achieved, but i t musi be brtsed on an
exprcss agreement, In façt, one of the fundainenta1 po1icy rearons for
creating a new international organisation to replace the one alrcady estab-
lished and serving siniilar or identical purposes is io achieve a fresh start
with a new organisatil)n, having no lcgal connection with the one currently
functioning. Under s1~chcircurnsianccs, the runcctions can be tra nsferred
onIy hy exprcss agreement betwcen the twoorgaganisations. In case of douht,
it must be presumcd thal no transfer is intended for the same policy ras011
stüted aboic. Thirdly, if is highly doubtful that this theory would rvork in
pract ice. Soon iifier the case of international Starus of SouiJi West Ajiica
in 1950, the UN Gcncrd AssembIy faced the question as ta how such
imp1icdly rransferred function was to be exercised; and i n 1955, it had to
request another opinign from the ICJ. Again in 1956, the Ciencra1 Assem-
bly had to ask the i h r t for an opinion on the scope of the function
intpIiedIy transferred. Thus, in a.sinpIe case ivhere this theory has been
applied, its applicaticn inçurred a series of resrirts to international judiciaI
promdures. Consequ?ntly. in addition to its theoretical shortcomings, it
would appear fhaf this t h e o p is not convenient in practice 3".
26. David A. Rice, in o~mmentingon the 1962 Judgment un the Preliminary
Objections in the Suutfi West Africo cases4, consitlered, i~r.fernlia, ihe validity
of the "succession theory" which "postuIates that the United Nations is the
successor lo the mandatc powcrs of the kague of Nations5"; in other words,
the thcory whicli "was a:oepted by the Court in the 1950 Advisory Opinion
on the Status of Soiith-West Africa6".
In Ihis regard he wrotc as folIows:
"The dcliberationr: of the League Assembly. the United Kations Con-
I n k r n a l i o m i and Conir.araric-eh w QurirterIy, Vol. 14 (19651, pp. 83-120.

' IIiid., pp. 105-1116.
" Ibid.. pp. 108-109.
Law, Vol. 4, No. 47
"Parties in Interest", iToiumbiu Journal of ~rdisn11#ionffi
(19651, pp. 71-85.
' ' ifid.,gp. 80.81.
V l i d . , footnotc 5 8 , p. 80.
ferencc on International Organization, anci the United Naiions GeneraI
.4sscmbIy Icnd no crcdence to the succession theor). The resolution of
the League Assernbly, passed in its final session in 1946, caIled attentioii
to the expressions of intent by the mandatories to adntinisier t hc niandated
tcrritorics in accordance with the mandates, and to the truteeship provi-
sionsof the United 'latiotis Charter. It is quite clear, however, rhat the
reso1ii:ion conwrning the niandates con tained no provision whichexpressly
d~Icgütedsupervisoiy powers to the Cnited Narions.
TIie Spender-Fitzrnauricc disxnt quotcs frrim a mysrerious 'Chinese
drafr' resuliition conorming tlie post-1-eague stulus of the Mandates
Systeni. '1-his 'Chinese draft' resolut ion does not appear in the Ofliciai
Journzil of the karuc. Howcvcr, i t seems sianificant ihat rhe Chinese
delegate exiresxd fris appreciation in the ~:irs<~ornmilicc, follk\ving the
riassage of t h e recordeci resolution which is comnared witli the 'Chincsc
drartabythc joint-disxnters, for the acceptance of the Chinese resolut ion
concerning tlie future of the Mandnles Sysicni. The jointdissenters çon-
clude [rom their cornpiirison rhat the Leitgue Assern bly ccirisidcrcd an
express dilcgiition of the supervisory powers to the United Kations as
provided in .the 'Chinese draft' and rcjcctctl this course of action. Such a
Iegislacive history, could it be s h o w , would niake it quitc clcar that suc-
musion wss not intendai. 1-lowever, it i s submitted that otlier evidcnce
m&es i t equally clear.
The action takcn bs the United Nat ions confirms tiie conclusivn t hat
çucccsuion p u se was not mnternplated by the Lcague Assernbly. The
GeneniI tlssemblv wassed a rewluiion on Fcbruarv 9. 1946. which took
note of rhe expre;sed intentions of the Mandrttorie;, incliidiny ihc Union
of Soutli Airica, and cülIcd upon them ro stibniit propoxd trusteeship
agrn'nicnts 'not later than during the second part of the firn session of
the Cieneral Assembly'. The implication of this resolution coririnns thc
expressÎons in Ariiclcs 77 and 79, hoth noting rhat mandatcd territories
PaII'within the scope of the trüsieeship prtivisions and thai the tnethods
of dealing with each case are ü matter of subsquenl agreement arnong
the parlies conccrncd '."
And his uitimate concIrision was that-
". . . a docision resting on the theory of succession is precluded by the
h ~ i t a i i c yand refusal of ihc Lcague and tlte linited Nalions I V provide
for the Lnited h'aiions' üssumption of the Ixague's role in thc Mandates
Systcrn2".
27. Judgt Sir Gerald Fitrmauricc. in a paper entitled "JiidiciaI Innovaiion
-1Es Uses and its Perils '"discussed, iiitcr aiin, thc 1950 majority opinion,
whiçh, hc considered, afforded-
". . .aii instanw o l a nlatter in which although, in thc prcscnt wriier's
vicw, ihc Court reached a niistaken conclusion on a certain question as
such, it neverthetess hiid an opportunity-but failed to rake it-of makiny
an innovatory clürification of the Iaw relat iny 10 international organisa-
tions IIIa manner that would have pointed to soine interest ing and irnpor-
"Parties in Interest", Co/uirrbil-r Journal of Tran.s~~~i!io~iaf

Law, VtiI. 4, No. 47
(1965), pp. 81-82.
Ibid.. p. 85.
' Cunrhridge Essoys in Initrnaiiunul hiw ( 1 965). pp. 24-47.
OF SOUTH ARICA
WKITrE\: STA~l~F:MES'I' 69 k
tant dcvclopments. rnstead, the Court gave a decisicln which. in the opinion
of Lord Mch'air, arnounred to a piccc of judiciaI Icgisiation"."
.4fter discirssing the naLure of ilie ptohlem with which rhe Court kvas füccd,
and stating thc mannçr iii which thc two dissenting judgcs Iiad deait with i t ,
the Iearncd author contin?ied as follorvs:
"What, in ihe Iight of all this, was the acinal basis af the Courlysfinding
that thc niandatory was accountable to rhe Lnited Nations? It was in
cnéct t his: that sincc the cxcrcix uf supervision, and the performance of
the rtporting obIigation l e r e essentiat clements of thc systcm-so tliat
the obligation reinaiircd intact despire the disappearance of the original
supcrvisory organ-:ind sinw thcrc cxistcd another entiry, the United
Nat ions, willing to mercise suliervisory functions and not disquaIifiecl
from doiny so under ils own Charter, rkeiefire rhe ~iiandatorywas iinder
a tegai obligarion I O furnish rcports l o ihe appropriale organ of the United
Nations.
This was of course, IogÏcaiIy, a iioe-sequirtir and amoüntcd. as Lord
Mc'lair said, 'ru iniftosing a ncw obligation' on the rnandarory: for an
this particutar büsis the latter would have been undcr an obIigation to
report to cuiy entity which happened ro be willing to act and was nor
debeired by ils con!;t ituiion frorrr so doing. Tlie esscniiat Iogical link
between an obligatioii, in the abstracr, tu report, and an obligation to do
so io s particular erdity, \\*a$ missing frrirn thc argument; and the Sali
wzrs not bridgcd by ?hc willingncss o r capacity of that entity io act, ur
even by the fact (a g c ~ deal
d stressed by the Court) that in the analogous
field of United Yaticns rrusteeship, this entity wa5 exercising on its own
amount functions of a broadly sjrnÏlar kind. Eiipecially might this he said
to be the case seeing that ail the evidence \rient ra show thai IIie failure
to make any cxpres! provision for the possihiiity ihat sorne rnandated
terniciries might not (as ihe hope and cxpcctaiiun was) bc trarisferred to
the truslcestiip sysktri, was no oversight but dcliberate, probabIy pre-
cisel y hecausc of ihai hope and expoctalion; biit obviuusIy the mere non-
realisation of the liojie and expectation could not then ilself be regarded
as a legal groiind on which the United Nations could proceed to cxcrcise
the deliberately non-iissumed functions.
In support of i t s finding, the Court confined itself to rclying on argu-
ments wfiich Lord Mch'üir and Judge Read deinolished wirh rcIliny ea.,
naniely a clearly incorrect or question-bcgging interprclaiion of ArticIes
I O and 80 of the Chirier, and a vers dubious inierpretrttion of the finai
1-eague of Narions ~csolutionof April 18, 1946, in which thc Lcagiie
recognjsed that its funct ions wi th respect Io rriandatcd icrritories were al
an cnd. MereIy to go on. as this resolution did, to 'noie' that certain
articlcs of the Uni tcd Kat [uns Charter 'etnbodied principles carrcsponding
to' those of ~ h rnaiiiiatcs
c systcm, and thal the varivus mandatories had
dcclared their intention of continuing tr, administer the rerriiories 'for
the well-being and di:vcIopmcni or the people3 concerneci in accordance
with the obligations contained in the respective Mandates*, and 'untiI
other arrangenients {rave k e n agreed hefwecn the ieIlnitcd Nations and
the respwtive Mandatory Puwcrs', was neither actually to makc any such
arrangements, nor to traiisfer the Leaguc's own functions to tlre United
Natiuns. Indeed the Ianguage uscd virtually negatived any such transfcr.
As Lotd McNair said, this resolution could nul bc construcd 'as hsving
created a legal obligation' for the mandatory 'to make annual reports
tri the Unitcd Nations' or 'tu transfer to that Organisation the prc-war
supervision of its Mandate by the Lieague'. 'At the most-, Lord McNair
mntim.4, the resolution 'wuId impose an obliga~ionto pcrform thosc
obligations of the Mandate . . . which did not involve the activity of the
Lcagric'.'"
D. Advisory Opinions of 1955 and 1956
28. I>n 7 June 1955, and I June 1956, this Cnurt gave Advisory Opinions
intcrpreiing tlie 1951) Opinion. The 1955 Opinion conoerned vot ing procedures
on questions relating to reporls and pctitions rcgarding the Terrilory of South
~ . 1955 Opinion related ta the adniissibility of hearings of
Wesr ~ f r i c a 'I'he
pet~tioncrsby the Coiiiniittee un South West Africa 3.
In both u s e s this Cuurt was asked only for an interpretalion of the 1950
Opinion, and conwqucntly its corroctness w a . not ~wnsidered.
The laler Opinions are nevertheiess significant in so far a. they cast light
o n the majorily opinion or 1950. The first fcature of the 1950 Opinion which
they emphasize is the difficulty in ascertaining the legal basis iipon which i t
was decided '. The Iack of clarity in the 1950 Opinion is shown not only by
the fact that it retluired elucidalion in two further Opinions (which is signifîcani
in ilseIf) but aIso by thc divisions among, and reasoning of, the Members O €
the Court in the subsequent Opinions. The 1955 Opinion prucecded upon a
purcly texrtiaI interpretatiou of the words uf the-1950 niajority opinion, and
is accordingly of intcrcst rnainly for the fact that an interpretative Opinion
was rcquired, rather than for its contents" In the 1955 Opinion, on the ather
hand, the M c m k r s of Ihe Cour[ alw advcrred to the legai basis of the 1950
majority opinion, with instructive results. The 1956 majority opinion (which
was cndowd by eight Meinbers of the Court rigainsi a minority of fiw) inter-
preted the 1950 Opinion as having been based on a iransfcr of supervisory
powers hoin the Leagire C:ouncil to the United Nations General Asscmbty,
apparcntly by agreetrient amongst thc intcrcstcd parties. Thus ir stated that
the Court had held "that the obligations of the mandaiury thosc which
obtained urider the mandates systern ""and it referred to the finding (in 1950)
"regarding thc subsîitiitioti of the GeneraI AssernbIy of the United Nations
for the Council of the League of Nations in the exercise of supcrvision6"
(italics addt:ù). Ai varioiis subsequent stages of its Opinion, the iiiajority again
referred to
". .. the paramount piirpoçe underlying t hc ruking uwr by the Clenemt
Crrtnhridige Essays i n Znrernuiionul Law (1965). pp. 37-39. Foi>tnoreadeleted.

Yoring i3rocedriw on Vitestions rslariiig ro Repdirrs un(/ Petifiofts c~nccrningthe
'ifrrirouy of Sourh Wesr Afrira, Advisory Opinion, I.C.J. Repovrs 1955, p . 67.
' Rd»ii.rsi.%Ii~yof Fierirfng.~of Petit ioners hi. flw C0:ortlttiiiireon Soirth Wesr Afrirn,
A d v i ~ u r yOpinion, I.C.J. Rrporis 1956, p. 23.
* Vide th<:coninients by Professor Jenniiigs (para. 24, supro) and Hungdah Chiu
(para. 25, $;,pro).
As regards the separate opinion of Jiidgc Lauterpaçhl, however, see the com-
ments of Rmfessor Jennings in para. 24, sicpra.
oj ifenrings of Peririniiers hy thr r'ornniiircr on Soarfi W t ~ Afriru,
Ad1~li~5i.5ifit.v r
Advirory @inion, I.C.J. R r p r i s 1956, p. 27.
AsseiiibIy of the Uniicd Nations of thc supervisory functions in respect
of ihe Mandate for South West Africa forn-ierly cxercixd by the CbunciI
of the Leaguc of Nsttiotis '" (italics added),
and to the
". .. Court having d:tcrmined that the General Assembly had rtpiacutl
ihc CounciI of the Lelgue as the supervisory organ ?" (italics added).
'The interpretation of tIie 1950 Opinion by the majority in 1956 therefore
apparently accords with ~hatset out above by the South African Govcrnntent,
viz., thal ihc Court in 1950 folind rhat a replaccmcnt or supervisory organs
had heen eiTwleù by tacit agreement.-Such a finding is cssentially one of fact.
29. The rninority in 1956 however, interpreted the 1950 Opinion În a dif-
fcrcnt way. ln the jaint dist~ntingopinion of Vicc-Prsident Badawi and Judges
I3asde>znt, Hsii Mo, Armand-IJgm and Moreno Quintana, the FolIowing
atlitude was expresscd:
"Resolution 24 (0iidopted by the Generai Assembly on February 1 Ith,
1945, had made provision with regard to the method tn he adoptecl for
the exaniination of a!ly request 'that the Unitcd Natiotis should assume
the exercise of flinctions or powers enlmsted to the Leagite or Nations
by treaties, international conventions. agreements and other instruments
having a poIi tical ciiaracter'. Herc uppeured the idea of a pssibiti trni~.$er
idpnwers cntrust~dr.e ille teagite of Rai rhe course indicarrd fry
rhui resnltt~ionwn.7 rrcbt foliowed. f i e h i o n oJ South Africa has ~ i o tsirb-
niitted tu the Geiieral A.wrnhfy nfiy requfsr ihar the tnrrer shoriid arsrrnit
zhe 'powers erifria~cd'10 ihe Coitncii o j the Le~~gfie The Opinion
of ~V~~liom.
of 1950 did not therrfore pIace itscIf on the same ground as resolution
24 (0. On fhc contriiry, il stated in its reasoning ihat 'thc supervisory
functions of the Lca1:iie with regard to mandated territories nut placed
tinder the new rrusteeship systcrn were neither crpressIy tranqferrcd to
the United Nations nor expressIy assurnd by that organi-ation'. The
Opinion does nor base itsclf on ihe idea o f succession, on the jdea of the
rransfer of powers.
?'ke Court, u??altrucredhy the ich 01-succession,nJ the rrarïfer o~poivcrs,
h s e d ifseIf ari the o f y p c ~ i sefeinents
~ of rke siruarion-fhe importance of
intermiionni supervision under rhe mandules systern ns w ~ iUS i rhe provisions
of the Charrcr O/ the United Ararir>iis.I t was in thex clenients that the
Court, in its Opiniorl of 1950, found 'dccisive reasons' for the view that
'the General Assembly of the Unitcd Nations is legally qualified to exer-
cise t hc supcrvisory funclions previously exercised by the I ~ a g u e of
Nations"." (Italics aCdcd.)
A similar vieiv was expi emed by Judge Winiarski 4.
It is apparent from th?: abovequoted passage that the minority did not
consider that the 1950 Opinion was based upon the consent of the interested
parties, and in particular, trf South Africa as inahdatory, to a transfer'of powers
Ibid., p. 28. The exprm:iion "iuking owr" appears again a t p. 29.

: Ihid., p. 29. h i e r there appear furthcr references t o the "General Asscmbly
replactnfi . . . the Cnuncil or Che Lcaguc" (p. 29) and to "the Taci rhat the AssernbIs
had repfucrtt ike Council" (p. 30).
' Ihirl., pp. 65-66.
Ibid.,p. 33.
WRIïTEX STATEMEST OF SOUTH AkRICA fi95
this point; but thc findings or reasoning of seven of them are to a grrater or
lessei exten t inconsistent w i l h any survival of ihr: Mandatory's obligations 10
report and acçoiint. The:, are Judges AlFaro, Badatq:i. Moreno Quiniana,
Wellington Koo, Koretsky. Jcssup and Mbanefo. In respect of the remaining
four J u d g a (i.e., I'resident Winiarski and Judges Rasdevan(. Spiropoulos and
Morelli) n o indicarions art: in rhis regard afforded by their opinions.
For convcnience, fhe Iudgrncnt and opinions will he dealt with in more or
less the ordei indiwted-above. '
II. Separnre Opitriotz of J l t d g ~Busttinimtre

32. Al though Jiidge Rtislatiiante held th31 the coniproniissory cIauw had
survivcd thc dissolution oi'the Lcayue, hc madc it quite clear that hc Jid not
thereliy intend to convey ttiat in his view any succession to the United Nations
had taken place. In Fact hc cxplicitly slaled:
"The above findingi da iiut iii any way imply an intention to establish
or to regard asestablished the principlc ofautonlaticor exofi~.iosiiwssion
of the United Naiioni ro the Ixagtie of Nations. II has b e n 5ufficienrIy
clcarly shown, in the o ~ u r s eof rhc rvrittcn and oral proceedings in this case,
that the theory of aiilanatic succession is iiiconsistetit with the historical
background of the discussioris and resoIutions of the two great bodies
during the triinsirional period in 1945-1446 '."
Ikaling specifically with tlie Mandatory's obligations to report and account,
he statcd that "the tutclary organirarion's right of supervision ovcr the exercise
of thc Mandatc is an insri;utiunül rulc in thc niandates system", which is no1
just an adjectival or pioe:dural formality, but an "esseniiaI element" The '.
stirvivaI or [hi5 essential eIen~entwas in his vicw provided for in the Charter,
which iniprised on the Maridatory the obligation to put into force a trustceship
agreement i.
Une of the yrounds on umhich he bnsed ihis conclusion was the very fact rhat
in the absence of a trusti:eship agreement ihere wouId be no intcmationaI
~upenisionin respect of m:indates. This alipeais vei-ycIearly from ihe following
passage:
"ln iny opinion, this wordiiiy of paragrapli 2, [ive.,Article 80 (3)] which
is connected with thai of Articles 77 (para. 1 (a)) and 81, clearIy defines
thc obligation-the urgent obiigütion it rnight be said - of Mandatory
States without delay ro put into force a new Mandate agiwmcnt. This
in~rrpretaiionis fuify n~nrrr~iitrri by a aogical r~asoningsitirc the itrrtrfirinn of'
rhe aiirliors of rke Clrrirf~r ccannof /rave heen rn Im b4ethe ~nairdotedierrifories
inrttfitziirly IO ihr un/et.ercri discret ion of the irluiiricrrury aiune. TVhave done
so ~votildhave bren tc. distort the character of rhis legal systcm as rvell as
thc intentions of its fcaundcrs. It would have amaunted to what has becn
called the 'freeriny' of ihc Mandate, wIiich would practimIly bc equivalent
to anneration 3.0' (Italics üddcd.)
Tt is not propawd t o de;rl wdith Judge Bustamante's concIusion regarding an
obligation to concludc a trusteeship agreement. This conclusion is contrary to
the finding of thc Coiirt in the 1950 Advisory Opinion, which it is respectfully
subrnitted, wasa correct one. It is howcvcr important to note ttiat .ludge Uusta-
mante's reaçoning is based, iaii~raiio, nn ihe absencc of supervision if no
trusreeship agrwmcnt iu conçluded.
i'fl. Dicsrnring Opinion of 3itdgp.c Spcncier aiid Firzniaurice
33. In tieir joint disçcnting upinion. Sir Percy Spendei' and Sir GeraId
Fitmaurim çlerirly revealed that in their view the 1950 Opinion was wrong in
tinding that thc Lcayuc's supervisory frinctions in respect of mandates werc, on
the dissolutioii of the League, transferred t O the United Nations. This first
appem very explicitly from t w o footnotes. In the first of thesc they stated :
". . . v/e think that the view expressed by the Court in its 1950 OpÏnion, to
the cKeect that the supenfisory functians of the forrncr Lcaguc CounciI
passed to thc Assembiy of the United Nations which ir7as entitIcd tu
exercise (hem, was definitel): wrong '".
The second footnote,referring to the original Cliinese draft resolution raiscd al
the final session of the Lcaguc of Nations and Iater not proceeded with ', reads
HS ~ O [ ~ O W S :
"The contrast between the original Chinese draft and thc one eventually
adriptcd constitutcs an additioml rcason why we find it impossible to
accepi.the view takeii tiy the Court iit 1950,thüt thc Funcrions of the League
Coiinci[ in respect of Mandates had passcd ro the Iinited Nations; for
this was the very thing which the original Cliinese draït proposed but which
was not adopted "."
This view was again express4 in the folIowing words after a thvrough
survey of events concerning thc foundation of, and earIy prmeedings in, the
Uiiited Nations and the dissolution of the League:
"They [i.e., bûth the Lnited Nations and the League Assernbliesl
rcfrairicd equally from any attempt to adapt the Mandates to the siluaiion
arising from the tcrrnination of the League and of League membcrship.
They not anIy 'refraind', hui ai Ieast twicc (proposal of the Executive
Cornmittee of the Preparatory Conimission of the United Nations. . .and
original Chincse resoIution at Gcneva) they rrjticred praposals for a
transfcr of League functions rwpecting Mandatcs to the Cnited Nations.
Acceptance of ~ilhcrof thesr: proposais would nitturaily not, of itselr. have
got ovcr the dificulty about mssation of League rnernhership. Tt would
prohably have broughr that question intû thc opcn, but this is not the
point. Our concern here is simply to show that the two Assemblies were
(cxccpt for Article 73 of the Charter) unwi1Iing ro provide in a q Jspecific
way frir the consequences of the terminatiori of the Lcaguc and its nieinber-
ship, a r for a possiblc cvcntual failurc: to liriw a mandated territory into
trustceship. In this lies the key to the wholc matter.
It is the key to the whole matter Iiecause i t is strikingly evident that the
twro Asxrnblics (and the Applicant Statcs iucrc Meiiibers of both) relied.
ibid., p. 532, foutnote 2.

Vide para. 15, siipua. and Chaptcr VIII. paras. (33-67, supru.
South Wesf Africu, Preliriiinary Ohjeciinns, J~ufXn~enr, 1.C.I. Rrporrs 1962,
p. 535, footnote 1.
698 NAMrnin {sor:m WFST AFRICA)
IV. Bissenring Opinion cd-JitrIge rnrt Wyk

35. Aftcr ü full and systcniat~ctrcarrncnt of rhc quesrion whelher Arhticle6
survived tlie dissotution nf the League, Judge van Wyk ~ a c h c dthc fullowing
concl itsion :
"TIic abovc considerat ions cvmpcl nlc io conclude rhat rhose provisiws
of the Mandates wliicli depended for their fulfilmcnt un thc cxistcncc of
the Liagiie or Kations were noi irnpliedIy aiiiended i i i any respect, and
accorriingly ccascd to apply on thc dcmisc of the xaçue '."
Hc therealier procwded to dtal wiih the 1350 Advisory Opinion and disciissed
fully the ::espects in whicli he disagreed witli. the findine o f thc rnajority
regarditig ihe succession of the Lnited Nations to ihc supervisory functions of
thc Lcsguc ?.
V. The Ju(lpi?iear lij' the Cortrr
36. The Judgmcnt of the Courr did net dcal cxpressly with the question
whet her t lie bague's supervisory functions regarding mandates passed to the
United K:itions on the dissotuiion of the Leaguc. A detailed analysis aT itç
reasorring aIso docs no1 provide any cIcar conclusion as 10 thc probablc vicw of
its authon in t his regard. A consideration of the Coiirt's finding and reasoning
in rcgard tu lhe survival of thc compromissory clause (Article 7 (2) of the
Mandate) indeed appears to provide strong support for a concltision that thc
Cour[ mu;[ h v e considered thal Ariicle 6 had lapsed ut1 dissolution of tlie
Lciiguc; bu1 doubt is sgain cast thcrcan by the actuaf treatrnenl of Arricie 6.
These two aspcts will he deait with in turn below.
97. Thr Coitri's fitiriinb~srrgrirdingr ~ h surviwl
e oj'drricle 7 (2).
As kas hocn pvinlcd out abovc 3, Applica~tsrelieci in their Observationson rhe
Preliniinai-y Objections on a so-called "doctrine of succfssion". This suggcstcd
"doctrine" en tailed t h t al[ rights and funclions in respect of mandates would
havc passcd from thc Lcaguc and its Mcmbers to the United Nations and its
Mcmbers, which would have meant, infer (i/i(;. f hat thc silpcrvisory functiuns
of the 1.eagiie woiild have been transferred 10 tlie United Nations, and thüt the
cumpcten~xl o invokc thc compromissory clause ivoiild have passed Born
Members of the League of Nations to Menibets of thc Unitcd Nations.
The Cburt did not x c e p t this argument in ils application t o tlie compro-
rniçsory clausc but, on thc ccontrary, held that on dissolution of Ihe Leagiie rhe
cornpetence to invoke the cornprornism-y cliiüsc remained vested in thost-
States that were Members or ihe Lmgue at its dissolution. Thus the Court not
only dcclincd to ücccpt the "succession" argument raised by the Applicanrs,
but its conclusion seems ait i x i y inconsistcnt ivith any transfer of Lcaguc
supervisory fiinciions to the United Nations. .4s stütcd prcvivusly Ihe supr-
visory functions could conceivably have passcd io the llnited Katiuns as a
result of implied agreement conçludcd in 1920; or by agreement (express or
irnplied) i i t 1945-1946 or thcreafter; or by sonie rule of objcciivc: Iaw. It seerns
inconwivable that any agreement. wherhcr express or iniplied, and whether
concluded in 1420 or in 1945-1945 or thereafier, ivould have separaicd the
obIigafions ro reporr fu the Couilcil of the League froni thc obIigaiions owed to
' Soirih IV~irtA.f?icd, l'rc!imif~ar,v O b j ~ ckin s , Judgmenr . I.C.J . Reports Igd.?,

p. 040,
V b i d . . ['p. 64U-65 3.
Yfdcpara. 1 3, supra.
WRITTIIN STATEMENTOF SOLTH AFRICA 599
%lcrnbca of the Ixague-in the sense tkar the former wotild relaie io a new
international organization and ihe latter to ex-Membcrs of a diffcrcnt and
defiinci organi7ation.I f the intereaed parties in tended to replace the Council of
the Lcaguc by ihc Gcnera) Aswnibty of the United Nations for purposcs of
administrative supervision, the l o g i d course would have been to replace the
Mcmbers of the I,e.lgue b;; Iviernhefi uf the Uniied Nations for conipulsory
jirrisdiction purposcs. Othcrwisc anornaIous con-iplicationsmay arisc froni the
diffcxncx in cornpusition I?etween tlie two grnups of States, i.e., those entitled
to participate in the -'adrninistrat ive supervision" and thosc cntiilcd lu invokc
the cornnromissrirs cIauw. -I'hu~.f o l instance, if. as the Court found. the
provisions or the c~rnpromissoryclaitse were in&& in the Mandate 1argily to
enable the wiIl of the authori tv exercisina - administrative authoritv to bc i r n ~ o x d
on ihe mandatory ', it ivoiild be anomülous tu provide that only snine menibers
of thc body cxcrcising udrriinistrative supervision (and indeed, on tlie present
meinbership of the Unitcd Narions Organization, only a rclativcly srniil1
proportion of its Memhers) would bc abIe to invoke the Court's jurisdiction.
And, it would bc cqrially or-even inorc anomaloiis to confer the cornpetence to
implemerit the "judicia1 siipervision" un States that nccd not t x nicrnbcn: of thc
organi7ation exercising adri~inistrativcsupervision, and which inay even have
bccn cxpcIled frorn such org~tiization.Siich anomaIies could never have k e n
intended at any stage.
Siniilarly, if the concept of devolitiion through an objective rule of inter-
national taw should be applicable ai al1 Io rhe circiinrstances of this case
(wliicl-i is disputcd). one cannot conceive of the existcncc of s rulc which would
have Ihe effect of separating in thc sense aforestated the deï,oIution of these
two obligations, particularry oii the Court's finding thal rhey were designed
tohards achievement of or~cand the same purpose, viz.?enforwmcnt of the
mandatory's "sacred triist-' ohligatinns.
38. 7'he C O I I ~ rensonit~g
I'S regnrrfing the stïr~irwlO/ Artirfe 7 ( 2 ) . '
Not only kvas the Cciurt'sfinding in regard to Ariicle 7 (2) incoiisistcnt with ir
subsri tution of suptrvisory organs, as dcmonstrated above, but its re~uorririgiit
reaching thisfindingequally tendcd tu negative t hepossi biliry of suchasiiccession.
Thus thc Cour1 reIied IargeIy, if not soieIy, on an agreement among Membcrs
of the League .of Nations ir, April 1946. This portion of ihc ludynient pointed
oiit rhat ihe Memhers of the h g u e had full knowledge in April 1945 of the
contcntsof thc Chiirtcr of ik..e United Narions, as also of the fact rhat the United
Nations Iiad already begün to operate. -l'he purposc of thc sgrccment tIiat was
concItided was, therefore, i i t the wrirds or the Court:
". . . to provide for tht coniinuatinn of rhc Mandatcs and the Mandates
System 'itntil other ari.angements have been agreed hetween rhe Cniled
Nations and the rcsptclive tnandatory Powers' 2."
Whcn defining the ambit of the aaçrccnicnt hcld tu have beeii entered inro
in April 1946 for the purpose sct out above, the Court. it is submirted, rendered
it clear that such agreemeni did not conlprehend any obligation tu rcpori and
acçuunt to the Unitcd Natib>ns.Thus the ruliowing language wwas used:
'
1
. . . obviousl y an agreement was reached aniong al[ the Menrbcrs of ille
Lcaguc at the AssembIy session in ApriI 1946 to cvnlinue the different
Vide Souik Wesr A f i i c a , Prriirnjno* OfriPrtioii.~,.Iird~*ment,1.C.J. Reports f 96.2,

pp. 336 et se4.
? Ihid.. p. 338.
WK-N STATEMLYT UT: SOUTH AFRICA 701
could not have rht efïect of providing a new body to exercise administrative
supervision. J3y analogy, ihe Iiighest eKect it could possibly havc had, would
have bccn to continiie in frlour of the States which constit~rtedtrie CounciI at
the dissolution of the League the rrights of supcrvision which had previousIy
vestcd in the Council. But tibviously individual Mernbers muid never cxcrcise
the functions uf a body wbic h had been diçso1ved;quite apilrt from the practical
difiiculties creared by the disiippearanceof the Perrnancnl Mandates Commission
and the Secremriai.
40. Thc samc ccinciusion secms Io follow front rwo furiher reasons {appar-
entIy subsidiary to the one dealt with a b v c ) assigned by the Court for the
survival of Article 7 (21. Tlie first was tliat ''judicial protection af thc sacred
t r w . . . was an csxn~ialftature of the mandates system '". This essentidity
was said to arise from the need ta provide a form of supçrvision which could be
invoked to overcome cases o f deadlock caused by the unanimity rutc applicable
ta procccdings of the Lcagtie Council. Kt is not clear whetf~erthis assenfiality
was regarded as an eletnent which, independcntiy of any Lwnseni by the
manàatory, caused the survival of Article 7 (2) (which, it is submittcd, would
be an untenablr: proposition) %r whether it was considercd to provide a
motive for the agreement vzhich the Court found to have bcen concIuded in
&nl 1946. ~ha;v& thc pusition might be, the "essen&lity" was linkcd to thc
need to overcomc a oosihlt: stultificarion of administrative suuervision caused
by the particular pro&dures appiied by the Leaguc organs. It would açwrdingly
bc irrelcvant to any pnssibb: funclioriing of the mandates under the rcgirnc of
the United Nations where ihe Gentrai Assembly coiild pass vaIid resolutions
by a two-thirds niajority 3. 'îhe only bai4 theFefare upon which the survtvaI of
ArticIe 7 (2) could be regardeci as i'css~n(ial*'after dissolution of the League,
would lie on the premise that adniinistrative supervision had hecn stulliiicd, not
by ii uniinirnity rule{which was nol applicable ro the United Nations General
AssemhIy) but by the Iapse of the s u p c ~ s o r yorgans.
41. The second subsidiar,~feature wax descrikd as follows7
", , . the right to imp1r:ad the Mandatory Power bcforc the Permanent
Cour1 was specially and cxpressly conferred on the Menibcrs uf lhe
League, evidently also because it was the most rcliable procedure of
ensuring protection by the C:aurt, n*harever niighr hapgm tu or ~ri.sefroin
'". (Tt~alics addcd.)
ihe tnachinery 0f odmiti.:sfrrrfive s ~ p e r v ~ r i o ~
As with "cssentiality", this feature of "reliability" u7as presumabiy not
regarded as mmething whirh criuld have h~dan independent legal effect in
providing for a continiialicn or "judicial protection", but rathcr as a factor
which would probably bave indiiced the Memhers of the League to make pro-
vision for such continiiation by agrocrncnt amongst themselves. In tl-iis rcspccl
also i t is significani that the reliability was directIy relrited ta incidequacies (or
possiblç inadcquacies) in the machinery of administrative supervision. Ji is
djficult to see what these inadequacjcs would or could have k e n unlcss the
Court was of opinion tiiat the supervisory functions of thc League had not
Ixcn transïerred to the Uniied Nations.
Ihid., p. 336.
Vide Chap. II, paras, 14 tci 18, supnz. and para. 57. sitpm.
.' I t was indeed accepted b ! ~the Court thnr judicial superuision was not essential
in ihe trustxship sysicm fur ibis very reason--vide Sniiili LYcsr Africu, PreIiiriinarg
Objecrions, Jttdgnienr. f .C.I. J'eporrs 1962, p. 342.
Ibid., pp. 337-3.78.
'Io sun:, up, both the conclusion and the reasoning of rhe Court regarding
the survival of Article 7 (21, provide strong indication that Ariicle 6 must. in
the Court's vicw, hiivc lapscd,
42. '1'ht:re is, to thc cnntrary, a paswgc in the Judgmcnt whicfi may possibly
ix r d as signiîying thai in the Court's view the obligation to report and
account, :.s irnpowd on Soiith Africa by Article 6 , kas in sorne form or another
'.
survived the dissoiution of rhe League The tneaning of the passage is, how-
cvcr, fsir frorri clear, and the South African Goverrtmeri~inust resyiectfully
confess to bcing whoIIy uncertain as to ubhatrhc Court intended to convey
therehy regarding possible survival or ot herwiie of Article h. The uncertainiy
arises not only froiii tlie fuci (ha1 the exprcssiutis "international supcrvision"
aird "thc obligations connected with the Mandate", as usod by the Court ?,
are for thc purposes under consideration irnprecise and soniewhat obscure, biil
alsu and purticularIy frvrn iht: cunicxt and manncr of t rcatmcnl uf the su bject
in thc Judgrnenr. Thus:
(a) It is striking that the Court at no stage dealt speçifiatIy with the proh-
Iems arising from the disappearance of the Irague's süpervisory organs, and
that no refereiice wx5 made at any stage ttu ihe suggestion that supcrvisory
funçtions were, after Aprii 1946, to be excrcised by the Uniied Kations. In
fact, the iinpressinn i~ created that any such ceference w a intentionally
~ avoided.
This appears part icularly frolri the ptibsagc quuicd frorri the 1950 Opinion at
pages 333 and 334 of the Judgment, where every referencc to the United
Nations was deleted 3.
( b ) The passage urider discussion concludcd wiih rhe liiIlowing words:
"Thar the 1-eague of' Nar ions in endiny its own existence did not ter-
rninatc thc hhndatcs but that it definiteIy intended to continue them by
its resolutian of 18 ApriI 1946 witl be seen Iater when the Court States
ils views ns to the true effcct of the Leag:ue's Rnal act of dissolution on
the Mandates4."
Sualh West Afiicu, Prelrtninary Objections, Jüdgiiiertt, 1,C.J. Reports 1962. pp.
333434.
Iriid., p. 334.
Thc coniplete text of the passage i s given beIuw.The paris deleted in the quu-
tatifin are itaIicixrd:
"The obligati~in incumhent upon a mandaton. State to acçept iiiternationat
supervision and iti suhrnit reports is an imporrant part of the mandates systern.
When the authors nf ihz Covcnant creatcd ihis systern, they considercd that
thc elfcctive perforniance of the sacred trust tif civiIi7ütitin by the mandatory
Powcrs rcquired that the administ raiion of niandaied territories shi>uIdh t suh-
j ~ tut ~ntcrnationalsupcrvision. The auihurs of the Charter Itod i~ mind the
sumc nere.s.riIy w/rcir the)' organircd an ittrerttarioi~alrrusteeship sysium. The
iieces.;ity for srtp~rvisiotrC O H ~ ~ ~ I IIO
I BEXIS!
S despife tiis disappeurnt~crof fhesirpeu-
ri sur.^ urgun rinrier trie rtiatzdata.~S ~ S I P I I Il .t çannot bc admitttd lhat t hc obli-
patio11to subinit tu supervision h sis disappmrcd mcrely bocuuse ihcsupcrvis;iry
orgrin bas ceased tu exisr. ndien tiir United iVutions hus ut~orherinrcriiarional
orgc111 pe[#'orining similui-, f/~urigLaof idenficul, srrperi,isoi.y funcrions." (Inler-
naiioiraf Stntils of Sourb Wcsl /ifriai, AJ~.i.rory Opinion, J.C.J. Reports 1959,
p. 131.)
W R I i T E N STATEMEXT OF S<>IYCH AFRICA 703
In the later discussion rci'crrcd to in ~ h i quotation,
s the Coiirt held that the
intention of thc hlernbers of the League at its find Session was incrcIy to
conrinue the niandates in sr1 Far as they would bt opcra ble afier the dissolutioii
of the Leagile. I n view of r he Court's findiny that the compromissory d a u s e
siirvived the dissolution of the League. the onlj' respect in which therc could
in i i s view have lieen inoperability aîter siich dissolution, was, as kas k e n
demoiistratcd above ', in that the provisions rclating to administrative siiper-
vision fell away. Thc rerercnw in the above quotation to the intention of thc
Lcaguc of Nations in Apri) 1946 wouid rkrreforc appcar tu indicate that the
Court did not in l'ne pwsage under disciissiun inean to express the vieiv i kat
the provisions rclaiinp to adiriinistmtive supervision sonithow survivcd thc
dissolution of the League.
43. In the reriulr. in vieii: of the aboc-mcntioned unccriliinties, no clear
inference can he drawn ss to Ihe Court's view on the qiiestion whethcr thc
Leaguc's suprvisury functions regarding niandatcs havc bccn laken over by
the United Nations-aiiIioirgh, for the reasons ~ d v a n c e d ,it is submittcd ihüt
on balance the reasoning js inrwnsisi~ittwith such succession.
Y I . Sel tirrare Opi?~ioiiof' ltidgc Jessirp
44, Judge Jessup di J no: deal expressly with the survival or othcmise of
Articlc 6. He round in reg;.rd tu Article 7 (2) rhat Ihe conipetence conferreci
upon Memberç of the Leal:ue reniaincd araiQble to cx-bfembers or the dis-
solved 1.eague. 'I'hc argurncnt set out ahove3, relating to the Iogical incon-
sistcncy bciween sudi a fioling. and a finding that the Unifed Nations Orgü-
ni7;riion Iiad siicceedcd t o the supervisory functiuns of the Lcagiie, would there-
fore a tso appIy to ihis Opiriion.
45. Thc rcasciniiig whereliy the Ieamcd Judge rcüchcicd his coiiclusioii regard-
ing ArticIe 7 (7) (irrcspwtiire of its sotindncss, with which wc a r t noi ai the
pwsent stage concerned) i~ C-ithcrinapplicable to rhe question whet hcr Arliclc 6
likcwisc survivcd the dissolution of the League, or tends pvsi~ivelyto contradicr ,
any possibility of a succession by the Lnitcd Kations to ~ h supervisory
c hnc-
tions previously perfornicr! by the Council of the Ixague. 'l'hc survival of
Articlc 7 (2) was firsily ha:-ed by Judge Jessiip on un inierpretation of the
Article, and in particuIar, of' the expression "ünntlier Mernber of the I.mgue
olNations". Ineffecthe followcd Sir Arnold McNair (in his dissenting opinion
in 1950) in holding ~ l i a tihese words did noi imposc a coiiditioii, but were ,
inerely descriptive orindividual States. which acquired rightç in rheir individ-

uaI capacities. I t \vil[ be t~bscrved ihat this reasoning sought to iind, by rt
proccss of interpretation o i the cxpressiun "anothcr Meinber of tlie Lcagiie
of Nations", an cntity capable of surviving the dissolution of the Lcague.
Such eatity {or eniities) exis!ed duriny the lifetiine oi' the I-eague in the individ-
ual Statcs conccrned in rheir iiidividual çapaçitics. By no process of inter-
pretation, however, can thc expression " C o ~ l n c ~ofl the League of Nations"
in Arlicle 6 be interpreted in a scnsr: wliich çoiild have referred, during the
existence of ihc Lcsigue, io any other cntiry [han thc Cuunçil itself; aiid thus
the Iearned Judge's line of rcasoning ivith regard to Article 7 (2) cannot he
applicd to Article 5.
' Vide paras. 38 and 39, supra.

' Soit f h Wesi Africn, Pre,litziirur~ Objraioirs, Jitclgni~ni, I . C'.J . Kepoits 1962.
pp. 333.333.
' V i d para.
~ 37,supra.
46. Secondly, Judge Jessup reIied on a statcmenr made on behalilf of Sotith
Africa on 9 April 1946 rzialive to the coiitinuatinn of its obligations under the
Mandate. This starement contained the foilowiny scntcnce:
"The disappearance of those organs of the League conccrncd with the
supervision of mandates, prirnarily the Mandates Comiriission and the
h y i i e Council, will necessarify precludc compIcte cornpliancr: wil h the
Ietter of thc mandate '."
Judge Jéssiip held t i n t this reservation did not affcct Articlc 7 (2). in
thar :
(nj The Permanent Court had by cxprcss agrwmcnt bocn replaced by the new
Couri prior to this reservation. and therefore its disappearanuc did not
p m l i i d e complcte cornpliance wilh ArticIc 7 (2);
( b ) The reference ro "another Member of thc Lcaguc" in Article 7 (2) was not
affcctcd by this rcwr~ation,because, the Members of the Lcagiie wcrc not
''~rgansof the League" >.
For present purposes it sufices to say in this regard:
As tu (a) rtbove
That the Council of the Lea&e had not, by agreement or otherwiw. been
replaced, prior to the rescr'vaiion, by an! olher bcdy ; and
As (b) nboi-c
That the Coüncil riras one of the "Organs of the Leagiie" and was expressly
rncntioned as such in the reservalion wntained in the South Africitin stalernent
of 9 April 1946.
It folIows, therefore, thzt the staternent could not have played any role in
tffecting ü subslitiition o l the supervisory orglins mentioncd in .4riicIe 5. On
the cnntcis., it showcd a clcür contcrnplaiion of ttie absen= of such a sub
stitution.
47. In certain portionsof hisopininn thelearnedJudgesecrncd toaccepl that
there was a distinction ktwccn thc frustralion caused by the dissolution ofthe
League in regard ta, an the one hand, Article 7 (2) (where the new Churt was
already in exisrence) as aminsi Article 6 (where there had bccn no substitutioii
of supemisory organs)
VU. Seprure Opinion of Sir h z i i s !Mboncfo
48. Sir Louis Mbanefo equaily did not &al wilh the effect of the dissolution
of the I .eague on tIie obligations of the Mandatory tu rcport and account. As in
thc casc c)f thc othcr majority judgcs, his conclusioii that ex-Members of Ihe
h g u e wriuld continue to be entitled to invokc the comprornissory clause was,
as pointetl out above. inhercntIy inconçistent with the ctlnccpl uf succession by
thc Lnitcd Pilntians to the functions of thc Leayue. And his reasoning seems t #
ernphasize the inwnsiçtency, Thus he said :
: 1.. o f M . U.J., Spcc. Sup. Iio. 194, p. 33; Chat). VIII, para. 26 ( b ) (ii), ~ i i p r a .
? Soui h Wcsf .4fric.n, Pr~limitzury Ohjecrioti.~,Jzictgrn~nl. I.C.J. Kpports 1962,
pp. 4t8-4I9.
-* Ibirl.. c:specially pp. 41 3-414.
W R ~ I STATEMENT
~ N 01:SOUTH AFRICA 705
"AIthough the Leag-.uc wiis dissolved, the Mandate sri11 continues and
the rights and obiigatirlns embodied in it bewnte, as i t wcre, rnaintained at
the IevcI at which they were on the dissnIution of the Lesguc. It is on this
ground that the Respondcnt a n jusiify i l s right to continue to administcr
the ierritory and those States who were Members OF the League at tlie tin-te
of its dissoIution the right rn cantinuc to invoke the compromisfory
clause of Article 7. Thc ri&t to invoke Article 7 renuined vestcd in thosc
States who were hlern!nrs of the Leiigue at the time of its dissolution, and
cnntinucs nutwilhstandng the termination of thc Lcugue's fiinçtions '."
43. Irrespective of the ci~gencyof ihis argument, nobody woüId bc ablc to
say that the rights and obligations rcgarding supervision "hecamr, as it were,
rnainiained at the b e l a i which they were an thc dissulution of the Leagtie".
As a rcsult of the dissolutinn of thc Lcitgue the said obligation$ could not bc
"inaintaincd": rhere multl be further supervision only pursuant. to a new
ubIigation, reiitting lo a ncw supervisory organ. In particular, any suggesrion
that in respect of such obligations thc organs of the United Nations replaccd
those of the League would invulve, not maintenance of exisling ribIigations, but
creation of new obligations-and in fact dityerent obligations in vicw uf the
differencc in ~ ~ i p ~ s i t i procedure
on, and approuch us ktween ihe organs of the
League and those of the Unitcd Naiions *.
50. The probable attilude of Judge Mbanefo alço appcars frorn his specific
endorscment .' of tlie folla~ingwords frorn the disseitting opinion of Judgc
Read in 1950: . ,
'''I'he disappearance of the régime of report, aciccounlability,supervision

and inodification. ~hroughthc Council and the Permanent Mandates
Commission, m i g k weaken thc Mmùates System; but it wnuld not bring
it ra an end. As a matter of fact, the rcconi shows that rhe paralysis of
those agencies during six urar years had no detnmcntal effcct upon the
mainlenane of the iveIl-heing and deveIopment of the peoples "."
Vfli. D ~ Y Siing
~ R Upininns of Presidct~tWftzirrrski,
judges &!.devant and kf ureiii und Declarnrion
of J~tdgcSpiropuuios
51. Nonc of the above-rrientioncd Judges dcaIt specificalty with the question
relating to the siirvival of iirticlc 5 , and no inference crin be drawn lroin their
opinions as to k i r vicws iii that regard.
52. Taking thc Jiidgment and opinions on thc Prcli~ninaryObjections as a
whoie, therefore, it is subniittcd that ihey tend to support rhe Soulh Afiicait
contention that there was rio succession by any orgm of the Lnited Nations to
the funetions forrner[y excrçised hy the Permanent Mandates Comniission and
the CnunciI of the Leayue of Nations in regard to manciaies not converted
into trusteeships.
thid., p. 445.
= Yid~ Chap. YII, vara?. 451.51, supra.
" South IVest Afrira, Pr6 iitiiinar? Dhjcc f iuris, Ji~dgtm>nz.I.Cl. Keporlx 1962.
p. 444.
' ini~rnorionulSturir~oJScuth Wesr Africu, Adrisor): Opinion, I.C.J. R r p o ~ i s1950,
p. 165.
F. Thc 1956 Judgncnt and Scperatc Opinions
'
53. In ilic Sonth IVPS?Africa cases one of rhc issues be~wmnthe Partics
was wliether the supervisory Cunctions in respect of the Mandate for Sauth
West Afr1r.a had piissed from the 1,wgue of Nations to [hi:Lniied Nations.
This issue was very cxtcnsivcIy canvassed Because of the Cottrt's decision io
dispose of rhe case an a preliiiiinary issuc, no final pronouncernent was niadc by
thc Court t>n this aspect. There is, Iiowever, iiiuch of relemnce to this matter in
the reaoniiig and conclrrsions of the Cotir1 aird of the Judges who delivered
separate or dissentin: opinions. lndeed, the indications are that had the Court
k n callctl upon l o dccidc the iissuc, tlie decision would have been in Soiitir
Africa's favour. For conveniencc, thc Judgrneiit and sepüratc conçurring
opinions will Lirçi be considered. and thereaket. a Iteniion wiIi Lw given ro the
dissenting opinions which dcsIt wilh this tupic. As will bc sccn, the cornbiried
errecl of' the Judgiiient and opinions is as follows:
((1) In the Judgment the indications sccm untnisrakablc that in the vicw of
its aui hors (JudgesSpendei, Wiiiiarski, Spiropoulos, Fi tzmaurice, Morclli.
Gros itnd vrin CVyk) the supervisory funciions in rcspoct of mandales had
Iapsed on dissoluririn of the League. This u7as exprasly so hcld in a
scpara.tc opinion by Judgc van Wyk.
(A) Judges Wellingtoii Koo and Tanaka htld that United Nations sticcession
had raken place, and gave their reasons Cor ihis finding. Thcsc wcrc in
direct conff ict wirh orle anoiiur. Judge Wetlington Koo decided on the
basis of his interpretation of the nlandatc docunicnts corrtbined with a
iindiny oi'fact ihat South Africa had agreed to a substjtutinn of superviwry
organs. Judgc Tanaka, un the othcr hand, ~s satisficd that no agreemeiit
by South A f r h had been establishcd, but decided this asprct on a prin-
ciple of teIeological or socio1ogicaI interpretation operat ing indcpcndcntly
of spcciiic conscrit.
( c ) Judges Jessup, Iladilla Nervo and Mbanefo decided that a iransfer of
super~isoryfiinctiot~shad oaccrred but assigned no reasons of thcir own
for this linding. JuJgc Mbanefo gave na rcaucins at all, and the first-
rnentiiined two Judges rnerely abided by earlier pronouncements of the
Cotirt (and, in parriciiIar, the 1950 Opiniori).
(dl Judgc:; Korctsky and Forstcr did not dcal with this topic at al l and gave no
indication of their attitude. I'heir opinions will conxquenrly not be dealt
ivith t eIow.
II. The Judgiircilt of the Court
54. Al though, as noted abovc, thc Cuurl did not cxpressly decide the question
now undei- consideration, its reasoning and findings lead. it is stihmitted,
inevitably 10 the conclusion that the mandatory's obligatinnr to rcporl und
accuuni to organs o l the Leagiic lapscd on the dissolution of that organiation.
Indeed, tliis apperrrs to have been iii~pIicitlyrecognized by the Court, as will be
shown fier?aFier. The foIlowing t l t m t n t s of the Court's Judgmcnt, are, it i s
subniittcd, of particular significance.
: E~hiopizand Liberia v. The Repilbjic of Siiitik Africu.

Vide fo:itnote to para. 4, si~pro.
708 N A M r B U (SOUTH WEST AFI~ICA)
And the Court must have bocn fully aware that iis hdings, couched in the
wide language qitoted above, would have this additional effcct, sincc thc nature
and extertt of thc mandatory's duiy i o report and account were, as noted,
çxtensiveIy argued before it.
(b) Thp C-ourr 's view as periarf 1945-f 946
io ~ f i cevctz!s i j r ftie ~ra~rsitiunul
57. Tlii: Court did not deal cornprchcnsivcly with lhe question whethcr any
fresh agrxmeni concernitig supervision of mandaies not convcrted into
trusteeshi- had bccn concluded in the transilional years of 1945-1946 which
cuuld have served toeffect a transfer of supervisory functivnson th<:dissolution
of the Lcague. The Cotirt did, h o w e r ~ r ,say in regard to the argument of
"necessity" (Le., thc argument thal judiciii1 süpervision was a necessary clcrncnt
of ihe miindates systein because administrative supervision was Iiable to he
futratcd by lhe unani tnity rirle applicable tn the Council of the Lcagiie l ) :
". . . such u iheory was iiever oficialIy advrtnced during the period of the
League, and probably nevcr \vauId have bwn but for the dissolution of
that organi7ar ion and I ~ fclcr
P ~ h a rir was CIIEII co~~sidcrcci
preferabk in reiy
on II:Qnnticipar ion thcit iI.ini&~teJ territuries n~oüldl e brotghf nbithifi die
Uniri~d,%-trioris rrnstecrhip sysrerrz "". (It aliw: addtd.) ...
This, c,?n on analysis, only mean thar there was, ar the rimc, no agreement
providing for futurc supervision of mandaied ierritories. The words ''considered
preferable" nlust connote tliat the course adoptcd was dcliberately çhosen in
prefercnce to one or mort alternalives. Tn the present context, the pos$ihle
alternativeswcrc mcasurcs which would have created a ractuaI situation ~ n d e r -
g "new%ity" arguinen t supcrffuous, i.e.. a facluai si tiralion in rvhich
i ~ any
there wotitù have çontiniied to be an effecrivesystem ofsupervision of rnmdated
territnries. The Court was thus sayÎng that, i i t Ihc dissolution of t h e Lcaguc,
the parties, rather than make any spcific arrangement that would have ensurcd
continucd supervision in respect of mandates, relied on the anticipation that
mandated territories would bc brought undcr the trusteeship system. This
accords 4 t h views expressiy stated hy two of the subscribers to the 1966
Jiidgment, Juttgcs Spender and Filzmairrice. in their 1962 joint dissenting
opinion ?.
(c) " Whrihrr the Corirt zs enritierl io enXQge in a prvc!rss nf 'f;!Iitrp in fliegops' "
58. ' I l e Couri's attitude w a s firmly that i t \vas not entitled to engagc in any
suçh pro~xss.In this regard i t said, irninediateIy after the passage quoted in the
premding paragraph:
" I i is these subsequent events alone, irot anything inhcrent in the
mandates system as it was originally conceived, and is correctly to be
intei'preted, that give riw io ihc atlcgd 'riccessi~y'. Bu1 thal iiecessity. if it
exists, lies in the pol iticrrI field. It does not consti tute necessity in ihe eyes of
the law. Tf the Court, in order to parry the conseqtiences of these events,
were now to read into the mandates systcm. by way of, so to spcak,
rcmidial action, an elemeiit ivhally foreign to its reaI charaçter and
structure as origiiially contcrnpIated whcn rhe systeni was instituted, il would
be engagin&in an r.r p s t filcro prricess, cx~cfdingits funclions as a court
' Vide para. 40, supra.

Vouili WPCIAfriru, Second Phase, Jtfdgnieni, f .C.J. Reporis 1966, p. 47.
The relevant passage is quoted in para. 33, supra.
WRlTTIiN S'TA'I'kMEN?' OF SOUTII AFKICA 709
of Iiirv. As is irnplied hy the opening phrase of ArticIe 38, parügraph 1, of
its Statute, the Courr is no1 a Icgislalive body. Its du ty is to apply the law as
jt Ends i t , not to makc it '."
Latcr thc Couri rcrnarkei:
"Tt may be ürged rhiit the Court is entitled to engagc in a prvccss of
'filling in thc gaps', in the applicatioii or a teleologicul principle of inter-
preration, accordiiig r t i which instruments must be given theieir rnaxiniurn
effect in order tu cnsiire the ackievernent of their underlying purpses.
'I'he Court need not h m enquirt: in10 the scupc of ü principle the exact
berrririg of rviiich is highly controversial, for it is clear tkat i t can have no
application in circumçtances in which the Coiirt would haire !ta go heyond
what can reasonahly bl: rcgardcd as bcing a proccss of interpretation, and
wouId havc tu cngagc:iii a p r o w s of rectification os revision. Rights cannot
be presuined to cxisr rnereIy bxause it might seem desirable that they
should 2."
58. To sum up, it ernergls Froni the Court's reasoning that, in its vicw, thc
Mandate as origimlly han-{ed contained an obligation to rcport and account
only to specific organs of tlic Leaguc, whiçh organs obviousIy did not survive
the dissoluiion of the League itself; that no provision was made for thç s u b
stitution of supcrvisory orgins at the time of tlie League's dissolution, and that
no principle exists which wouId now cnabIe the Court in efkct to make suc11
provision. The resu[t of these factors considered in contbination must bc that
the ohiigatirin to submit fo supervision has laps&. The correctness of this
conclusion appeais tu have liecn acceptcd by the Court in the folrowing passdge:
"Another argurneni -#hich requires ccinsideration is that in so far as the
Court's view lads to tlie conclusion that there is now no enlity enlitleci to
cIaim the diie perforniance of t h e Mandate, it must bc unacccptablc.
Without attempring in any way lu pronouncc on ~b various implications
invoIved in this argurrient, the Court thinks the inference sought to be
drawn frvm i t is inadinissible. Cf, on a correct legal rwding of a givcn
situation, certain alleged righls arc found to b~non-cxistent, the con-
sequcnccs of ihis must he accepted. l'he Court cannot properly pusrulate
the existence of such rights in order 10 avert those consequences. 'I'his
wnuld tie to engage iii an csscntially lcgislative task, in the service of
poIiiical ends the pr~rnotionof wliicli, however desirabIe in itxlf. lies
outside the frrnction of a court-of-Iaw j."
I i I . Sep iraTc OpitiiiBn ilJ hidgr ïun Wyk
ho. i n the 1966 praceedi~gsJudgc van W y k ügain considered whether the

supervisory functicins of t h t League of Nations in respect of the Mandate Cor
South West AFrica had boen transferred to the United Nations, and, artcr a full
revierv of the relevant facis and thc rcspcctivc contentions of the Parties,
carrie ro tIie concIusiun ihüt no such trai~sferhad taken place '.
' Suulh W L YAfiica,
- ibid.,p. 48.
~
ibid.. p. 36.
Secund f'it'finsc,Jridffrreni, 1. C.J. Reports IY66,pp. 47-48.
Ibid.. pp. 82-1 37.

I V . Disseniitrg Opitiiurr uJ' Yii.t.-Presideilr Weiiirr.qzoti Kon
61. In Iiis diswnting opinion Judge WelIi~igton Koo found that Soiith
Africa's o~ligatiunsto subniit 10 superrision wiis transferred IO the ie~nired
Nations a? follows:
( a ] In ter:ns of the ~ ü n & t e ,South Afiica was, as Mandatory. suhject to an
"obligation of interriaiional a~rotirziability'".
( b j This obligation bccamc latcnt aftcr the disappearançe of rhe Cuuncil of
the Lcague and the I'ermaneiit Mandates Comiiiission l .
( r ) South Africa acknowledged the General Açxrnbly as the cornpetent inter-
national organ in t h c maiter of the Mandate for South N'est Afriw, b~
South Africa's conduct in undertaking to si~brrii~ to the Cieneral AssemhIy,
and aciually submitiing, a repon on the Territory '.
(dj By this acknnwtedgement, the latent "obligation of international account-
ability" was reaciivaied as an vbliyation tu rcporr and account to the
General Asscnlbly of the United Narions '.
62. This Iine of reasoning. i t is respectfülly submittcd, is iinsouiid for the
follawing reasans :
For the rason.; siaied above t hc rnandaiorics' obligation was, i t is siih-

initteù, ntit one of "international accountability" in.ihc abstract but onc io
report and account to specific organs of a particular organiziition.
It follows froni what was said irnrncdiatcIy above t k r the iiiandatoriei'

obIigation relaIing to supervision was npt capable of surviving thc dissolulion
of the Lcague.
As to (c)
On this aspcct it niust be emphasized that the conduct reiicd upon by Judgc
Wellingtoii Koo as constituting üLxepiance by Souih Arrica of the General
Assembly a s thc ncw supcrvisory 01-gan,wiis the undertaking io submit. and
üctuat subrnission, of a reporr on the Territory. AIthough he also refcrrcd to
the 1946 ~~roposal for incorporaiion. he did su for a diffèrent purpnw-ihis
proposal, in his view, \vas an attempt on South Africa's pari t o concludc an
nrrangenit:nr in terrns of paragraph 4 of the Rnal League resolution on inan-
dates4, rvhich aiternpi f d c d b c c a ~ i xthe Lnitcd Nations woiild no[ agree
iherero 5.1'hereupon. lie heid, Soutli Africa entered into a ncw ürrangcmcni
i n ~ l v i n gaccountability towards i he United Naliom, as stated, by the under-
iakinç to iubr~iiiinformation and actualIy dni~igsa.
"
There ir;, i t is respectfufly subrnitted. a basic flaw in this linc of rciisoning.
I3ristu1aiing,as the Iearned Judge did the neczssity of agreement on the piirt
o f Soiiih Africa to a substitution o f ~upcrvisr>ry orgaris, nne would have to
Sortfh Wtsr Africu, Second Pho.sr, jrrclginunt, I.C.J. Reports 1966, p. 235.
' Ibid., pp. 23&?38.
Chap. VII. paras. 47-60, supra.
' Quote3 in Chÿp. \'Ill, para. 26 (fl,sitpru.
' So~irliW e s ~rifrico. Sprond P ~ PJ ~,i d g n l ~ f I.C.J.
lf. Rt.pui,fs 1966, p. 237.
Ihid.. pp. 235-236.
WRIITI:N STATE.MEKT OF SOUTH AFRICA 71 1
determine whether in fact any agreement vas reached, and. if so, the exact
contenl of such agreement. This viould involve an cnquiry into the South
h f r i a n ücts and expressions of intention ~ 0 n ~ r ~ j the
t I gsubrnissjon of in-
formation to the United Xations. Judge Wellington Koo a ~ c p t e dihat Sourh
Afrim's action in submilting thc rcports \vas exprcssed to he "voluntary on
i t s part and for information only such as providcd for by Articfe 73 (el of
the Charler OS the United :Vations replarding non-seIf-governingterritories '".
This siütcmcnt (which, il it. rcspççtfully suhmitted, is cIearly co~rec1:ct)
must by
itsetf negative any concIusion that SoutIi Arrica intended io. or did, subject
itself to any obIigalion ro ieport and account under the Mandate to t ht Gcn-
'.
cral Asscmbly of the Unit :d Nations Nevertheless Judge WeIlingron Koo
coiitinued to state ihar::
".. . tlre IegaI effect of ~ t [Le.,
s South Aliicii's] declaratiun and nct acknowl-
edging the Generd AS;~nibIyas thc comptent international organ in thc
mattcr of the Mandatc for South West AiTica, in view or ils ~bligationof
international acmunta bility under Art iclc 6 of ? hc Mandate, obvioiisly
cannol be dctcrmined ?inilaterally by i t alone "".
This masoning begs the question. wfiich is precisely ivhethcr South AfrÏca
did acknowledge the Gcncral A~qemtilyas the çompetent inrernationül orgin
in the matter ofthe Ma ndai-efor Sou ih Wcst Africa. As si afed above. on Judge
WeIlington Kooosown finùing of facts the answer must clearly bc in the nega-
tive, and he reached n diK(:rent result onIy by assiiming what required to be
established.
In wncl~~sion ir may be noted that Judge \VeIIirigton Koo Jid not sock to
rcconcile his dissenring opinion of 1966 with the Jiidgmcnt in 1962, to wlijch
he ivaç a party '.
63. Judge Tanaka üIso rtrached the mnclusion that the United Nations had
succccdcd to the sulxrvisory functions previoiisly cxercised by the b a g u e , but
o n a different basis. He staied:
"This rnncltisiuti cnniwi he derived fruni ~ h pxprcss c or racif inlent uf the
pcrrties !O the nicidute dyrccTtietir and rhosr concerned, brrruuse nt the p ~ r i a d
oJrhc irrccprion u{ihc Mnlrdute czir erctzlli ntch as F / Rcfissolitrion ofrlre Leope
stirrly cuirid noi be firrr::er~t&v tliein, C I ~ Pbecurrse
~ rlze inktirioti oftlre prirfies
ririrl those roircert~t.d,ni:(/ I ~ I Ps~~r~oitiirling
c i r c ~ ~ ~ ~ t ~iztl athe
n rprriod
~ . ~ ' of the
dissolution oJ the Leaguc arc sir.scrytibie of diverse iiztcrpr~tntions.'I'here
waq a Iacuna irt the mandate ayrecment which shuuld be fiIIed by the theo-
reticaI or Iogicai interprctation by the C'oiirt ';."(Iralics added.)
I t will be noted hour explicitly Judge Wdingngton Koo's findiny is rcjected
by the underiined words.
Later Judge Tanaka müdc thc following ohenarion: "In this case. we
- .-
l i / ~ i d .p., 236.
Yidc Chap. V i I l , para. 71, .rupro.
Soifrh Wc.sr Africu, Secur:d PI~uslse,.ludginefi~,I.C.J . Krporls iM6. p. 236.
+O n t h r effcct ofthe 1962 Jridgiiient, vide paras. 36-43, srtpru, and I.C.J. Pleadi~gs,
Soiifh H'esi Africu. Vol. 11,pp. 156-161 {Couri~er-Mernorial).
. C.J. Rcyuris 1966, p. 275.
Soicifi Wesi A-frica. Secoi:d Phase. J r t d ~ e n f1.
cannot dcriy that the nwcssiiy created the law indcpcndcntly of the will of
the parties and those concerned '".
Ir is rrspecirully çubrnirted that this approach, which invaIves "sonte degree
. '"
nf creative element in . . judiciaj activities and renders ir "a b t r y dcli~iitc
and dificuIt inatter" to determine the borderlirie b e t m n legislation and ad-
',
judication d m s not a a o r d wiih the principics of intcrpretütion acceplcd in
internatinral law and appIied by this Courr ? :ind shnuld accordingly not bc
followed.
Judge Tmaka's ultimate conclusion on the aspect of United Nations suc-
cession to qupervision of the Mandate for South West Africa was thnt-
".. . the differcnm of opinioos on the questions beforc us is in the hnal
instanîe attributed ro the differenot: between two rnethods of interpretatian:
or soçiulogical and conceptional r>r formalistic *".
tclcolc~gir~il
'This cornment must bc rcad in the Iight of the finding, quotcd abovc, thai
the facts on record did not estabIish any agreenwir (in 1970 or in 1945- 1945)
whcrcby a substitution of supcrvisnry organs was c f f ~ t c d .Judge Tanaka's
preference for the teIeologicaI or miologicaI approach to interpretation is
rherefore rial of merely aradernic intercst in the present case-had he appIied
the traditions1 "conccptional or formalistic" rnethods (which, i t is submitted,
are firmly estahlished in international lai^)^ he would have arrivecl at a dif-
ferenr coni:Iusion.
It is, rnctrcuvcr, intercsting to speculate whethcr Judgc Ttlnaka intended to
suggest in the passage quoted immediately ahive that other minurity judges
who reached lhe same conclusion as he did, did s o by applying the same inter-
prctativc proccss. Any such suggestion wauld be of particular irnporlance since
some of these judges did no! give any independent reasons for thcir conclusions
in tkis regard. or relied only on the 1950 Opinion. which may itself have heen
an cxamplz of thc applicstion of an exrreme teleolagical apprciach
M. In his dissenting opinion, Judge Jessup did not givc any consideraiion
to the merirs o f the question whethcr the supervisory functions of thc Lcaguc
were transrcrrcd to the Unitcd Nations, although hc dealt at great length with
certain of the other issues raised bctwcen the Parties (and somc which were
not raised). The reasoning in Judge Jessup's separale opinion in 1962 seemed
to ncgativc thc possibility of any siibstitution of supewisory organs ? This
apparent effect of the opinioti was pcrtincntly drawn to t Ire Court's attention
in the Soiith AMcan pleadinys ?. The absene ofany comment on this arpect,
or any rcasoning inconsistent with the South African contcnfiuns coricerning
the lapse of suprvisicin in ia5pect of South West Africa, would appear to in-
dicate that the interpretalion p l a ~ ~indthe South African pleadings on the effcct
of Judgc Jcssup's opinion in 1952 couId not be faulted.
' South West qfricn. Second Phase, Jtld~tnent,i.C.J. Kcpor!.s 1966, P. 277.
YideChap. Il. supro.
Soutli :;Ye..rr Africu, S ~ r o n dPhare, Judgtnent. I . C I . K~porrs1966, p. 278.
' YidcChap. II..sriprrt.
Vide tl-.c viervs expressed hy the niinority judgc5 iri (lie 1956 Opinion ii> whirlli
referencc is made in para. 29, siipru.
Vide pi1 ras. 44-47. S U ~ ~ U .
' I.C.J. I'l~~diiigs, Sorirh Wcsr Afuicu, Vol. I I . pp. 161-163.
714 XAMIBL4 { S O I I T ~WEST
~ AFHIC:A)
As the case procccdcd, furthcr enquiry and research extendeci thc ambit of
such facis, but the purpose for which thcy wcrc adduced rernained uiialtered.
In parti cul;^, i t was not suggcsted ttiat these new facts had any direct rclevancc
io the finding in 1950 that the Mandate as an irislitution han surviveci the dis-
solution of ~ h League.
e The South Afriun attiiudc \vas [kat, even i f the Man-
date did siirvivc, nu substitution of supervison, organs had taken place, and
it was towards establishing this Iatler proposition lbnt the "new facts" were
adduccd. 7 hc clïwt of the "new facts" on thc Iapse or othcnvisc of r he Mandate
as an insti:ution could only have beeii aii indirect one in the sense that, if 11
were acceptecl that the obligation to subrnil lo supervision had Iapsed, the ques-
tion wauId havc arisc-cnwhcther the Mandate w ü s capablc of sursival in such a
trimcated 'orin. 'I'his would have r a i 4 questions of sevembiIity, on rvhich
the "new hcts" also had no significant bcaring.
In the 1il:ht of this, Jitdgc Jcssup's approach to and treatmcnt of thcsc "ntw
facts" is, to say the least, surprising. He comincnced his ccinsideratioii of this
topiç by stating that some of these facts "bear on the issue of lhe suwivaI of
ihe Mandate, an issuc which csnnot k ignored in this opinion l". As regards
Preparatory Corninission procccding ', Judgi: Jessup stated that South
Africa-- -
". . . scerned 10
attacli iniportanoc to this aIIegctl 'neiv fact' in connection
with ils arguments that the Mandate lapsed on the tcrrninativn or dissolu-
tion of the League of Kations and thal the Lnited Nations refuscd to
acccpt any rcsponsibililies or authority in wnncct ion with the territories
wKch lrad k e n administcrcd as mandates l".
And tater:
"Tlie thrust of Rcsponùent's ai-guinent . . . is that this omission proved
that it was agreed that the United Narions had no responsihiliiy in regard
ta mandstcd tcrri~orics4."
Judge Jessup coitsequently sotrght io sliow i n this part of his opinion, firslly,
thal the new facts djd not detract from the existence of an understanding
amongst Statcs that thc Mandate as an institution had sun*ived the djssolution
of the 1-eague aiid, secondly, that. there was wide agreement that the United
Kations haù responsibiliiies in respect to mandated terrilories under Chapter XI
andior XII of thc Chartcr 5. Since the presentation of thc "ncw facts" had no:
been directed to either of tlrese issues, and since neither of them ariscs for con-
sideration in rhe preserir writlen sfatemcnt it wilt not be riecessas tû crrnsidcr
whcthcr tttc conclusions rcachcd are in any event carrcct. Mureover, as wilI
have appeared from the treatrnenl of ttiis topic in this written statement ',
nary Objmtions), pp. 67, 97-99; Vol. I I (Couotcr-Mcmorial). pp. 141 - 1 48, I52, 155-
156; Vol. VI11 (Oral Prt>cwdings), pp. 547-562. Substantially the sanie contention
is advanctd hcrein-ride paras. 1 5-1 8. suprrr.
l Soitili IVe.rr Afiicd, Seciind l'hast-, Judginmt, f. C.J. Reporrs I966, p. 339.
Discus:;edin para. 17. supru.
" Sourh West Africu, Second Phu-se,Judgmuni, I . C.J.Reporrs IY66, p. 34 1.
' Zbid., p. 342.
Yide. c.g., p. 344.
V i d e <:hap. 1, supra, wnççrning thc question whethtr ihe Maiidatc as an
insiituii<in:apçerl on dissuIution of t hc Lsague.
Yide paras. 15-1 8, ~ u p r aand
, carliçr passages to which rcfcrcnce is ihere made.
WRiTTFN STATtMENT 01:SOtJl'Il AFRICA 715
Judge Jessup's consideratioa of these "ncw facts" is a highly selective and vcry
incomplcte one '.
For the forcgoiny reasoiis it wilI siiflice to say thal such considcration as
Judge J~aîsuphas givcn tu the so-calIcù "ncw fiicls" does not i i i any way w a k e n
the conclusions reached t hercüncnt in this wri trcn statement.
67. In his dissintins opicion, J u d g Padiiia Nervo cndorscd the conclusioiis

reached in 1950 and 1962 wirhout presenting any additionaI or independent
reasoning in support thcrcof2. It ivill therefore suifice to say that, for the reasons
statcd above, it is subrnitted that the 1950 Opinion should not be foliowed in
the respea now in qucstior,.
68. Judge klhanefo statcd his mnclusion thar South Africa "is accountablc
to the Unitcd Nations foi the proper discharge of its oblipations ulider the
Mandate and that the Unitcd Nations has a corresponding right of super-
vision 3". As in the case of othcr mncIusions, he did noi give any reasons for
rhis finding but conlined his reasoning to the points an which hc disagreed with
Judge Jessup's disciissiori of the suggested additionai paragraph in a stritemçnr

niade by Dr. Smit on 1 l Mi4.y 1945 (Souih West Africu, Second Pituse, Jirdgment,
I.C.J. Reports 1966, pp. 339-3411, is anoti-ter example of treatrncrit by him (if some-
thing not rclicd ripun hy Soui-h Africa. This matter was rajscd by Svuth ATrica in its
Prclirninary Objections {I.C.,'. Pfeadinxs, South Wesf Alrica, Vul. 1, p. 345) but w a s
dcscribed as eirrly as 4 October 1962 by the South African çounsel as "not rcally
irngvrtiint" (ihid., Val. II, p. 91) and "really unimportani" (ihid., p. 102) because
. ..
"theri: is iniplici t in the body of the staterncnt the Mme as is convcycd expliciity
in this rurther pnragraph" {ibid.). Still Judgc Jcssrip fciund it necessary to devtite
more ihan a page of his opiiiion in 1965 to this matter, urlrich had not b e n relied
upon by Soiith Africa since 1962, although, l i k e Soutli African coun.wl, he con-
sidercd that "it is doubtful u'hether thjs extra paragraph adds muçh io what is said
in thc last thrce pnragraphs of rhe statement as adrnittcdly made by Dr. Smit"
(So'ottrfiWrst tffricu, Second Phcise, hdgment , 1.C.I. Reports 1966, p. 340). In the
light hereof it is diifrcult to understand the significance attachtd by Judge Jessup to
the question whether Dr. Smits' momory was a t fault when he wrotc that hc had in
fact read out also thc additirmal puragraph.
A second puzzIing fcoturc of this part of Jiidge Jeessup's opinion is the suggestion
that the Botith Africün cont~:ntions, both as regards the Prcparatory Conlniission
procccdings, and as regards the first Chinese proposa1 at thc final meeting of the
Lcaguc Assemhly, had been -'stiinulated hy the 1962 joint di~senr"(ibid, pp. 341,
347). In Trici, the Soutli Afria:an conicniions on thcsc aspects were advancd in the
same ivay in the Preliminary Objjocri~ns(i.e.. prcccdinp the 1962 joint dissent) aç in
the Counter-Meniorial (i.e., after the 1962 joint disseni). Coinparc in this regard
ihe Preliminary Objections (1.C.J. f"le(i(fNtgs, Sourli West Afica, Yot. 1. pp. 345-346
and earlier passagcs therc citcd) with rhe Lountcr-Mernorial (ibid., V o l . TI, pp. 146-
141 and earlicr passagcs thciil cited). Morcovcr, i i is difficult tci saz why i t should
givc rise to any comment if a party ivcrc to adopt arguments in irs favoiir which
were fIrst advanced hy judg-s in earliçr stages of the proccedings (\irhich in fact
happeoed i n some instance: in the South West Alrica rsses although not thvsr
mentirmed by Judge Jeesup).
~ u ~ i JVesi
i h Afiica, Secûid Ph~sc,Judgfrze~~t, I.C.1. R~rporzs1966,pp. 450, 456.
458.460-461,470-47 1 .
Ibid., p. 490.
'.
the Court's Judgment AccordingIy he aIso did not attenlpt to rcconcile his
dissenting opinion in 1965 with his separate opinion in 1962 2. ft wiII accord-
ingIy again suffice to subrnit that his wncIusion rcgardiny United Nations
supervision was iiiwrrect.
69. For the reasons aforestated, it is contended thai the Caurt shouId not
follow the 1950 rnajority opinion but should hold that the said Opinion was
incorrectk~decided in the respect now in question. In particular it is subntitted
that the Court shouId now hold positively that the sup?rvisory priwers re1atii.e
tri mandates which had k n vcstcd in thc Councjl of the League of Nalions
were no1 lransferred to tlie United Nations CIeneraI Assembly, and that South
Africa's obIigation fa report and account in respect or the Mandate for South
West Africa, lapscd on dissolution of thc kapue.
.Fou~h Wesr Af~icu,Second Phme, Judriir~nf,I.C.J. Rrpurrs I%5, p. 490.

As IO which, see paras. 48-50, supm.
W HI TTEX STA7E%lEhI-I>+ W C 1-H AFKICA
CHAPTER X
THE VAJ,lDITY AKD LEGAL LFFECT OP GEKERAL ASSEMBI,Y

RESOLUTIOK 2145 (XXI)
A. Inf roductriry
1. In the present Chaptex j t will be assumed, despite thc rrrgumcnls advaiiced
to thc contras. in the prewding chapters, fjrstly, that in its Advisory Opinion
of 1 1 July 1950, this Court correctly decided that-
". . . the Gcneral Asseinbly of thc Unitcd Nations is IegalIy qualificd t o
e.xerci.w the supervisory functions previously cxercised by the Lcague
of Nations wiih regard to the administrarion of the Territory . . . '"
and, secondIy, that [he powers of the Lcüguc in ihis regard incIuded the power
to revoke the Mandatc for South West Africa.
In what ToIIows, however, i t will be submitted that even on thc basis of the.%
assurnptions thc Gcneral Assem bly was not itsclf authorized by the terrris of the
Charter IO revoke the Mandate and ihat thesefore its tesolution 2145 (>;XI), by
which it pitrportcd to do this, was I I I ~ ~vire3
R and of no legal effect.
11)this cnnnect ion the orig:inand ambit of the powcn of the General Assembly
wiI1 first be considered; next, the nature and scope of thosc powers wi1I be
cxarnincd in so fcir as thcy relate to the prestnl question; and thereafter rem-
Irition 2145 (XXI) wiIl be tnalysed in the light of thc conclusions arrivcd ai.
B. The Orii* and Ambif of fhe Poivers of the
G m d Assembly
2. It has bccn pointed 01.1 in conncction with the Security Council t h t the
cornpetences of the various cirgans of the United Nations are derived exclusively
from and limited by the provisions of the Charter 2. Thus whtever the naturc
and cxtcnt of ihe powers of:he Gcneral Assembly, ttiey can be ascertaineci only
from the teims of the Charter itself >.In the words of one emioent authoriiy,
commenting upon rht suppcsed prcsumption that action by the Unitod Nations
Organization which "niay b: rcgarded expcdient from the standpoint of one
of ihe purposes of the UN" is not ultra vires the Drganization:
"As the Soviet menibcr of the WorId Court, V. Koretskii, correctly
noted in this regard, such a presumption would mean a rcturn to a formula
1 ong sincc condemned: 'the end justifies the means,' Professor Ch. Chau-
mont of France emphasizes that 'states-founùers of an organization
wnclude an agreement no1 oniy on,the n(~rureof irs goals, but uho on rfie
m e m for alraitring theitr' " (ItaIics addcd.)
Inlctrnolioaal Stolux ofSo:rrh IVe.rf Africo, Advisory Opinion, LC.I. RcporIs 1950,
p. 137.
Chap. III, para. 2. .rupro.
Yide Certain F ~ p ~ n s oefs fhc United rliaiions (Artide 17, paro~raplj 2. qf the
Churrer), Adviror.v Opinion, 1,C.J. Reports 1962, p. 184 (ceparate opinion of Judge
Sir Percy Spender).
Tunkin, G . I., "Thc Unitcd Saiions: 1945-1965(Problems OF International Law)",
Sovirl tawand Go~,erriment.Vol. I V , *id.4 {IÇ66f.p. 6.
Peüling with internationa1 organizations in general znd the Cnited Nations in
particular. the same authority points out that :
"The charter of rn international organizaliuri, in this imtüncc the U N
Charfer, defines ihe auurhurity of the international organiration as a whole
and thst of its organs, the rights and duties of its inember-states, their
interrelationships with tlie organization, etc. It foltows frorn the principle
gacra sunt s~rvu~rda t kat siates mrist fuIfiI conscientiot~slytheir obligations
undci thc chürtcr nf the international orgini~ationand, at the sanie time
tliat rnore cannot be required of siaies (han is slipu[ured in ihc chartcr '."
Moreover. as this Courr has said in regard to the very question now being
considcrcrl :
"Ir is to be recalled that the Court, in its previous Opinion, stated that.
'The cornpetence of the General Assembiy of the United Nations. . . is
deiived from the provisions ofAriicIc 10 of thc Charter, which authorizes
rhe General Asscnlbly to discuss any questions or any 1nattei.s within the
scope of the Charter and to make recornmendations on these questions or
matters to the Mçrnkrs of thc Unitcd Nations'. Thus, the airrhoriiy o f f h e
FE?IE~#! Asse~nbiyi 5 exercise sipervisiort #ver the adnririislrulioii of South-
IVexr Africa as a niandated Territory is basen un rhe provisioris of thc
C:ifurier. While, in cxcrcising that supervision, the GeneraI Assem bIy
shouId not dcviate from the Mandate, ils aurhority CU #crice decij.ions iri
order i o e&ct such supervision is d~rivetifiom iis own coiistitutian 2."
(Ilalics addcci.)
It thcn, the powers of the AsseiiibIy are derived from and basccl upon thc
Charter, ii: cannor act outside the Charwr. It follows that thc Assembly could
irot have revokcd thc Mandatc for South West hfrica unIes!s the Charter
conkrred upon it powers wide enough to e f f ~ such t a revocation. Whciher or
nof the Charter did so is the next qiicstion to hc considered.
3. The lwwers of thc Gcncral Assenibly cover a wide range and linay be very
broadly cIassifred as ci ther "political" or "orgairizational" i i nature,
~ thongh il
will somctirnes h e diRciilt to draiv a line bctwem the iewu. The former category
embraces the AsscmbIy's powers of discussion and reccirnmendation:the latter,
siich powcrs as tho.se in regard to ntembership of the Organiution, the clcction
of rnemhers of various organs, budgerary and fiilancial rnatters, the controI and
supervision of subordinate organs, the administration and supervision of
certain triist territories, and the arncndrnent.or the Charter 3.
Of these powers the only vnes which can be considercd rclevant to the present
question are thoçc political pciwers ccinferred in Articles IO, 1 1 and 14. The
lerms of AnicIes 10 and 14 are wide enough to bring the question of Sou t I
- .-
Tunkiii, Ci. I., "The Cniled Nalicins: 1945- 1965 (Prohlems rif Internrriional
La?)", Sovirt Law aridGovurnn~nt,Vol. TV, N O . 4 (1966).p. 8. (Footnoles omitted.)
- Vuting Procediire on Qrirs~iunsrokziing lu Rrjrurts und feiiiiuns concernirtg ihu
Terrirory u,f Snorli W ~ s A,fricu,
r Advisory Opinion, I.C.J. Report> 1955, p. 76.
Vide ÏII this crmnectiun Ross, A., C.bnstiiutliin of !lie Lfrirti3d !Vutionr (1950).
pp. 59-50; Goodrich, L. M. and Harnbro, E.. Charrer ofihr Lfnited iVarions(2nrI ed.).
p. 2 5 ; Verdross, A., Yujk~rrechi(5th d.), p. 520.
WRLTTEN STATEMENT OF SOUTE4 Ai-KlCA 719
Wcst Africa within the purlicw of the deliberalive and recommendatory powers
of the AsscmbIy and the sz.me would he truc of Article 1 1 , pwagraph 7, if this
quearion were onc invol\ing the maintenance of international pe3ce and
security. For in terins of Alticle IO the Assembly may discuss and ~riakcrecorn-
mendations on "any questions or any matters within thc scope of the present
Charter"; in terms of Arik:Ic 1 1 , püragrapli 2, it nlay do the same in regard to
"any qucstions relating to the maintenancc of inlemational pcacc and sccuri~y";
and in terms of Article 14 it "may remmrnend rncasurcs for the peaceful
adjustmenl of any situatin~n, rcgardlcss of origin, wliich it deems Iikely to
impair the gencritl wcifurc or îriendly relations arnong nations . . .".
However, since i t has kccn shown that the Assenibly puiported to adopt
resolution 2145 (XXI)by virtue nf powrs vcsting in i t as sucCtssor to the
supervisors pnwers of thc L i g u e of Natioiis l, and sina: the cornpetencc to
exercisc these powers has tecn held by rhis Court to derive froni the provisions
of Article 10 of the Chart-ir', and since, niorwvcr, the naturc O € the powers
conferred in Articles 10, 1 1 und 14 are the same, i.c., deliberative and rc-
commendiitory, consideratioii of the powers of the Assenibly can Iorpurposes
of the present question be confined to the considcration of those conferred in
Article 10 3.
4. What then are i
k nature and the cxtenl of the powers beslowed upon the
General Assembly in ArlitIe IO of the Charter7 That ArlicIe reads as foIlows:
"'Ihe Gcncral Assi:inbly inay discuss any questions or any rnatters
within the scope of the present Charter or rclating I O the powerç and
functions o f any 0rgar.s pravidcd for in the present Charler, and, except as
pravidcd in Arfjcle 12. may make recommendations to ihc Mernkrs of the
United Nations or to rhe Seciirity Council or to hoth on any such quesrions
or mat te^."
When regard is had i o the plain meaning of the words used in this Article it
is clear ihat it confers upon the Assembly only two powers-the power to
u'iscuss and the power to ihecomilietid.It docs no more thm t h t , though ob-
viously rhe powcr to discuss must "also include the powcir to msko decisions
which cithçr sum uii t h e stzrtemcnts made or in which the hsernbly as such scts
fortli i t s opinion, in so far as this has not thc chiiracter of a rcwminendation 4".
The lançiiage of the Articlt: wrtainly cannot be construcd to give thc Assembjy
the powcr to rnake a decir.ion havirtg binùing effects. It is irnpossihle to infer
such a power frum the ampetence to "discuss", while, as %vasshown with
reference to the pnwers of ihc Socurity Council, a "recommcndation"can by its
very naturc have no bindirigeffects '.
5. If the language of the Article is clear, so is the intention of those who
framed the Charter. It i~ apptirent, both from the cvmments and proposed
arncndrnenfssubmitted by States in regard to Chapter V, section B,paragraph 1 ,
of the Dümbarton Oaks I'roposals (the forcrunner of the prestnt Articles I O
to 15 of the Charter) and fiom the records of Commission U and itu Cornmittee
Il, that Ihe deleptes to the San Francisco Conference accepted withour
Vide Chan. VI. suortr.

fnt~rrrari&ulsfulus of~iisriii Wcsr Africa. Advisnyt. Opinion, 1.C.J. Regorrs 1950,
p. 137.
The conclusions in regard to the powers confcrrcd in Article IO will apply
eqiirilly to rhose conferrcd i n Article I 1, para. 2, and in Ariiçle 14.
+ Ross, op. r i t . , p. 61.
Yi& Chap. V, para. 52, rupua.
question tliat the poli~icaland socurjty powers of the General Assetnbly wcre
to bc mcrcly clclibcrative and recornrnendatory and not in any sense binding '.
Indeed, the uoniy &jegale who cxprcssly advertcd to the question rook this to be
a rnatrtr of course. He said:
". . . there is no Iinzit on thc power o f recommendation Save the one
mentioned in the text [this is an apparent relkrence io thc cxcepticin
containeci in the pfeçent Artide 12, parrigraph 11, and the Assembly rnay
rnake rwiornmcndatians on these matters to the United Nations. Ofcozirse
those recon~rrr~iidufions wiU h v e no upcratire eflcc~in any m u n iry . .. "',
{ltalics added.)
And ai nu iimc during thc course of the relevant discussions was this inter-
pretation called into doubt.
The views of the framers of the Charter as tu the nature of a recomrnericlulion
arc d s o illuvtratcd by a ruling of the I'resident of Commission F[ in cunncction
with Chapter V. section B, paragraph 4, of the Durnbarton Oaks PmposaIs,
dealing, inter alfa, with the power of the Assembl y "tu elect, upvn recurnmcn-
dation of i.he Securiiy Courtcil, tfie SecrefaryGeneral of thc OrganizationF-
as the foIlowing excerpl frorn thc rocords of the first meeting of Comniission II
wD1 show:
" M r . Evnrf: Mr. Frcsident, on behaIf of Australia I support the requcst
of the Nethcrlands, but we aIso think ît is irnplied c l w l y from the words
used--and 1 woilld like your ruring on that, Sir--rhat ilte A.wembiy hzs
the ri&, nfter fhe recotnntetidarion reoches il. to say 'yes' or to say 'no' . . .
1 think that it is imptied froin the words uscd, that if a recommendation
reaches the Assembly ii ran rejec: it .. .
Prrsidetzt: [in giving his ruIing] . . . AlI, therefore, diai the Sectirity
Council clocs is to rnake a recommendation. It is tro [sic] tnatidatory ar afi.
Tt is simpIy a recommendation. The General Asçeinbly a n n o t elect.
withoiit having before it such a recommendation, bsr rhey are mur bozmd
by sirch a rec~~nitnemkdiuri.II seerrts to tne t h plait1 meirnitg of rhe recnllttnen-
da~inii,and 1 rhink, that k i n g the case, we need not pursue the rnaiter
rurihcr 3." WaIics added.)
That representatives accepted this ruling on thc nature and effects of 3 re-
cornmendation as king correct is shown by the f a t that it \vas never contestrd,
then or laier.
S. Tt has been pointed out in wnncçtion with the powers af the Secürity
Cnuncil that a recommendation of the CounciI can assume a binding charaçter
only if sornc or 0 t h provision of the Charter operates to invcst it with such a
character '. 'l'hat is equaI1y crue of a rcconimcndation of the GeneraI Assembly.
Hut in the case of the Assembly there is no article of the Charier which might
even suygcst that its recomrnendatory powers under Articles IO, I I and 14
can cver br: trairsfortned into thusc af binding &cision.
Moreover, there is ample authority in the pronouncemeiits of Memkrs of
this Court and of publicists of repute. or at Ieast o l those of them whu do not
5'1cit UNCIO dt~cs.,Vols. III, \'III (pp. 195 U I stq.), and IX.
UNCICI docs. Vol. ViI1. p. 208. (Statemcnt of the Ausrralian rcpresentritive at
the Fourth n~cetingof Conirnissirin II.)
Ibid., pp. 32-33.
YfcieChap. V, para. 52, siipru.
7. The conclusion is clear. Under Article iO o f the Charter the General
Assemlily w n discuss and can rnakc rwrnmcndirtions on a vcry widc varicty of
subjects. But there its powcrs end. Its recommendatioiisare not bindingupon the
Staies to which they are addressed and ii cannot, rherefore, irnp~sc11s wilI
upori States. Apari from its organizational ]cornpetences, it is, in fact, only a
body "to discuss, to consider, and to recorsimend, but nol to take action l".
Action, in a proper case, is the prcro~ütiveof the Security Council.
D.The Nature aiid LegaI Effect of &nerd hsembly
Redution 2145 I X XI)
8. The +:nia of General Assembly rcsoluticin 7145 (XXI) is opcrat ivc para-
graph 4 in which the Asu'rnbly :
"4. BecicIes rhai thç Mandarc conferreil upon His Britannic Majmiy
Lo be exercised un his bchrilf by the Governmeiit of tlie Union of South
Africa is therefore tern~inated,rhat South Afriça has no other right to
administer ihc: Tcrritvry and that henceforth South West Africa cornes
under the direct ~esponsibilityof the United Nations."
In thcir essential nature the other paragraphs of the rcsoIution çonst iiute
cither the reasons giving riw LUthc dt~isionscmbodied in operativc paragraph 4
or the measures takcn in consequence of those decisions and in order to
implcment them, and, as sucll, these other p a r a ~ a p h sare legally irreIevant to
the question of the cornpetenci:of thc Asscm bIy to adopt operative paragraph 4.
9. It is manifest from the Ianguag of paragraph 4 t h t it does not purport to
be rccorn~ircndatory in character. X t embodizs three separate biit related
decisions by which the Asxrnbly purports tri terminate the Mandate for
South West Afriça; to niake a legal finding to the efîect that t herefore South
Afriça haç no right tri adtninisler rht: Territory; and to place the Territory
under the direct responsibiIity of thc United Nations. The validity of the sccond
and t h r d of these ddecidons depends iii the first insiance npon the velidity of
thc dccisian tn revnke the Mandate. Lf the latter dccision is invalid, su are thc
others and so ihen arc al1 the rneasures taken in remlution 2145 { X X O to
implement thcm.
Second Plzuse, ludgtnenr, I.C.J. Reports 1966, pp. 50-5 1 ; Ceriain E.~prnreroJ r h ~
United bruf inris (Article 17, pnu~grapfi 2, ($ihe Cfianer), Adci.~oryOpiniun, 1.C.J.
Repuris 1967. p. 233 {disscnting opinioti of Jüdge Winiarski), and pp. 250-251
Cdissentingopinion or Judge Moreno Quintana) ;Dahm. G., Vofkrri4echi(1961), Vol.
2. p. 27;Johnson, D. H.S . ,"Thc Effcct of Resolutions of the Gencral Asscrnbly of
the United Natioiis", BYBIL, Vol. X X X I I (LY5S-1956), pp. 97 er scq.; Bricrly-
3. L.,'The1-uw of Ncrtiuns (6th d.), p. 1 10; Goudrich and Hambru, o p . Nt., pp. 151,
152; Dugard, J., "The Kcvocation of the Mandate ror Suuth West Africa", AJIL,
Vol. 62 (1968), p. 94;Kclsen, H.,ITht Law uJrhli Unitrrl iVtrtiuns (I951), pp. 193
ci seq. ;Beritwuich,N. anci Martin. A., A Coinin~nruryon ~ h cClinrtcr of tlrc Uaitcad
Nufions (19511, p. 33 ; Yallat, F. A., "?'he Campctencc of tlic Unitcd Nations Gcnerril
Assembly", Recueil des c.uiir.s, Vol. 97. No. 11 (IYS!]), pp. 230-231 ; I l i QiiaI, 1 ..,{.es
eftrs des rP.roEiriims &s iVrifiom Unies (1967), p. I I ; Rindschedlzr, R. L.. "La dé-
limitation des cornpitcnws dcs Nations Unies", Heciieii des cours, Vol. 108. SO.1
(1963), p. 345; Verdross. o p . cir., p. 5 2 2 ; Schwarzenbergcr, G . , A iMlrnlrnl oj.Inrci.-
aafionnl l a s (5th ed.), p. 284.
Gotidrich and Hanibro, o p . rit., p. 150. Or as Uolivci. L., 7'hc Llnited :\hiions
(1946), p. 23, puts it : "lt is clearlv ;Ile inteniicin ;if t h e Charter l r i rnake the Assernhly
the great rntlral and political platl'orm of the world, hut irrif In jetir tukediruct~rctiui~."
(Itaijcs addcd.)
WRln'EN STATEMEKT OF SOUTH AFRIC.2 723
Thc decision by which the Assenihly purportcd to fernijnate the hlanduie is
one by rvhich it sought to impose its will-to make a political disposition with
bindi ng and Far-rcaching Icgal cffectsrrgn omnes. It has, howevcr, k c n shown
thst undcr Article I O of tlie Charter rhe Assembly u n n o t do inore than make
reconrmendiitions, rhal thr:w recomrncndaiions have iio binding effeçt and ihat
wnscqiiently the Assenibly can never impose ifs will iipon Sraies. 'I'he con-
cIusion Îs obvicius-tlie Asseinbl~''~ "decision" to revokc Ihc Mandate for
South W a t Africa is altoi~therbeyand its authorized powers and thus has no
lem[ efYeç1 ai al1 '.
IO. 1i is, rnoxover, signifiant that of the few ivriters who, to the knolvlcdge
of the Soutli African Gr,vcrnment, havc dcaIt with the question nonc has
attcmpteci io justify the 1r:gal validi ty of Creiieral Assembly cesolution 2145
(XXI) while scvcrsl havc doubtcd or denied its validity 2. Carrillo Salado
üppcars sin~plyt o accept ihe fact that thc qucstion of South West Africa is a
political one and that the Assembly in purportiiig to terminaie the Mandatc has
prnceeded in a political way :j. Açcoràing to RahmatulIah Khan and Satpal
Kaur:
"It is onc thing tu :;ay that the Mandate stibsists; thai thc UN succeeds
to ihe supenrisory furictions of the Lcaguc; and lhat South Africa cannot
alter the Sratus of South-Wtst Africa uniIatcrally, and it is anorher thing
tn daim for thc UN Ihe authority to terminate the Mandatc as a sanction
against the inandatoi.yYsmisuse, or incffcct ive performance of the obli-
gations over the manifated territory . . . 4"
- The authors thcn contiriuc, with rcfcrence ro the general compctcncr: of rhe
United Nations in relatiori to "ter.ritnrial administration" and after citing the
cases of the Free Serrirory of Tricste, the Partition of PaIcstine and Wat.
Irian :
"The burdcn uf al1 rhese thrcc prcccdents is that the Uh' cars assurnc
responsibiIities of terr-itorial administration in the evenr of &ri! coirsenr
iirnonyst lht: powers c3ncerned. [Ernphasis in original.] The legal au~horily
for such activiiy may no! be an insurmouniable obstacie, but consent is of
crucial imliortance.
Thus, ont: cannot iielp k i n g sceptical ahout thc Icwl validity of the
termination resolutio!~Ii.e., 2145 {XXI)]both on the hasis of the WmId
Corirl's advisory opinions and jiidgments on thc subject and on ihc basis
of thc UN cornperefice in gcncral. The only possiblc Icgal explanation
woüld be that the Inrcma~irinaIComrnunity which created the Mandatc
in its Ixague of Nations incarnation might be supposed to have thc pawer
' Unlcss thc "dccjsion" iiiay bc. regarded as in the nÿture of a rn-onimcndation
t o Statcs,including South P.frica. which scenis. hr>wever, to be impossibIr since il is
addrcsscd to nobody and by its nüiurc posfulates no choice of acrion.
Vide. for insiance, R~xisxau. Ch., "Chronique dcs fd11s internationaux",
Renie b%?vhu/c de drvir inzer-nnfionuf puhlic, No. 2 (1 9671, p. 384; Bastid, S.,''L'af-
faire du Sud-Ouest Afiicairi devant la Cour intcrnaiionale de Justice", l o i ~ r n a ibu
droit inIfrnuiioniil. Vol. Y4 (1967), p. 573: Higgins, K , , "The International Court and
South West Alrica Thc Implications of tbc Judgmeni". Jottrnrrl of the Inr~riturionat
Commissioii of Jurisis, Vol. '1111. No. I (196-0, pp. 29-33.
Parrillo Salmdti, J. A., "Un Cyso dc r>rwoloni-mcion: El 'lèrritorio del Sudueste
A Ericano", Rrt-i.ttü ErpufioL ile DeyecI~olniilernrici<innl, Vol. XX ( I967), pp. 4 18-4 1 9.
' "The Deadlock over Souih-West Aîriça", indiun Jotirnal of Inirriiarionnl Luw.
Vol. 8,Ko. 2 ( 1968). p. 184.
tr, tcnninatc rhe same through its new institulional rellction, i.c., the
Cnitert Nations. This, apart from bcing a far-fctchcd axplnnrrriot~,however,
serves as no rea1 justificntîon . . . '"(Emphasis in original.)
Even Dug.rd, who corsiders chat it "may at f i s t appear IObe ridiculous" to
conclude t ha; rcsol ut ion 2 145 (XXI) did i~orhavt: the desi red effect of termina-
ting the Mandate, concedes, after enqtiiry, t h i lhis concIusÏcin "ilowslogically
from an examination of the puwcrs conFerred upon the GeneraI Assenihly by
its omn Charter 2" becrius:
"It is tritc law that resolutions of the GeneraI AseinbIy no1 concerned
with its nwn interna1 management are no[ IegaIly binding upon States.
. . . Su:h resoiuticins arc only rccornrncndatory in their effect . ..>"
I 1. The cunclusion, then, is that the "decision" iii resofution 2145 (XXI) io
revoke the Mandate for South West Africa was trIm sires the General Assembly
and of no legal effwt iit aII. And since the remainder of thar resolution depends
upon lhat decision for its vaIidity, it follows that the rviiole resoluiion is
without legal effect.
"The Deadlwk over South-M'est Africa", Indiun Jnirrnrtl of tnfernutiomi Law,

Vot. 8, No. 2 (1968), p. 185.
' Dugard, d J l L , Vol. 62 (19681, p. 95.
Ibid., p. 94, (References to foornotesoniitted.)
CHAPTER X I
'l'HE FACTCAL ISSUES
1 . In previous chapiec; tlie South African Chvernnient has contcnded,

izrfcrrrlili! thal the United Nations d d not succeed to the supervisory powers of
the Lcague, and that the Gcncral Assembly was not lrgally empouueredto
revoke the Msndaiç for :South West Africa. In rhis final chaptcr it wiIl be
dcmonstrated firstly thal, aven if it were io be assuiiied that the GeneraI
Assenibly was so empoweced, thcri: cxisted no factual basis which couId have
justified thc rcvor;ation of the Mandate, and rhat the rcprcscntatives or States
which supported the aduption of resolutivn 2145 (XXI) I either rvere not
ancerned whether such a factual biisis existcd, or did nul apply their rnindq to
the facts avaiIsblc to theni, with the result that they were undcr a cornplete
misiipprehension as to the true faclual position: and more especially the nature
of South Africa's admini:tration of South West Africa. Sccondly, ii wiIl be
dernonstrated that if the clernand for withdrawal of South Africa's adminis
rration were lo beacceded CO, it wouId have dclctcrious consequeriw for al1 the
peopfes of South West Africa *. Ti wilI conseqüentIy be submitied that even i f
the contentions advanccd in the previoris chapters were not ta be acccptcd by
the Court, the said rwolution is, in any cvent, invatid for the rerrsons e t out
hereiii. Moreover, even if the resoluiion were to be regarded as a valid rccorn-
mendation, il wjll he shown that cornpliancc therewilh woiild be detrinienta[
to the intcrcsts of the inhabitants of South West Africa.
2. It irriIl be recalled t h ~ ti1ie "deckinn" io revoke the Mandüte cmbodied
in remlution 2145 (XXI) :vas sought 10 be h s e d on the ground "that South
.4frica has pdilcd lo fulfil its obligations in respect of thc sdministcatiori of
the niandzted 'Territory and to ensure the rrioral and material well-being and
sccurity of the indigenous inhirbiiants or South West Africa, and has, in Fact,
disavowed thc Mandate . . . 3"
l t is not clear what was meant by the phrase "has . . . disrivowed the Man-
&te". Presumahlÿ the authors of !I>e resoliirion had in mjnd asserfions on the
part of South Africa to tile eflect thal the Mmdatc had lapsed. Whilst it is
true that the South African Ciovernmcnt contends thar the Mandate did lapse
on Ihe dissolutinn of the bague of Nations, i l fias consistently cxprcssed an
in~cntionto adrninister th? Tcrrilory in thc spirit of the Mandate4: in other
words, to carry out, as a marai duty, its erstwhile siibstantive obligations as
if the Mandate siil1 cxisied. The resoIution under consideraiion did no( pur-
port to rcly on the "disavowal" of the Mandatc as ci separate ground for
revocarioit thcrcof. and, iri the Iight of South Africa's dsctarcd intent, irs legal
conient ions regarding the lapse of the Mandate cannot, i t i s submittcd, con-
stitutc such a sepaiate goiind.
YidpChap. VI, para. I.:upm.

As to the requircmcnts c-fjustice in an cnquiry ofthis narure, ride Chap. i',para.
43, SllPVQ.
" VideChap. VI, sirprri.
' V i h , e.g.. GA, OR,Second SWS., Fourth Conirn., 31 st h? eçting, pp. 3-4: 1.C.J.
Vol. 1V,p. 201.
Pkodings, Sortrlr ttésl /fjkic~,
726 NhMIBlA (SOUTH WEST AFHII'A)
ris k '.
as IKMI demonstrated above thc revwation of the Mandate caniiot
be jusrified ori the basis OF a breach of a treaty or agreement existinç ktiiieen
the Lniteci Nations and Soulh Africii, and, indeed, in adopting resoIution
2145 ( X X I ) the General Asscnibly purpoi'ted Io açt yIaa supervisory organ not
q ~ ~ contractual
g party. And as a purportcd supervisory organ, the United
Nations must surely ha\*e been concerned with Lhc manncr in rvhich Soulh
Afriça adniinistcrcd the Ièrritory, rather t h n with views exprcssed by South
Africa rrs to the legal position. It is ccinsequently only South Africa's alleged
failtire to ensiire the n~oraland material wdI-king and securitÿ of the indige-
nous inha'r~tantsof the 'Ierritory whiçh is rclevant for prtsenl purposcs 2.
3. In th{: succeeding seclions (B and C ) i t will l x shown that the whole
issue or Scnuth West Africii must be seeri in its context as part or a polilical
campaign rlcsignod to secure the independence of South Wmt Africa as a
siitgle politicri[ unit ; thut mtijontics in the Gencral Asscmbly, although osten-
sibly concerned with the materid and moral wcI1-king of the inhabitants or
t hc Tcrritary, wcre in reality inlent on attaining their pol itica1 ends irrcspoctive
of ail nthei- wnsiderniions; that relevant resoluiions werc adopted as a result
of the exisience of a klicf (real or simulated) t kat South Africa's administra-
tion of the Territory is oppressive of tlie indigenoiis inhabilants; that, in so
far as rhis Mief niay havc bccn genuinely heId, it can be attributed largely to
dernonstra1,Iy faIse allegations niade by pctiiioncrs; and that certain represen-
talivcs in the United NaIions have no1 only ignored expositions of thc truc
facts but. on the contrary. have eaçerlg awepted aIIegations from obviousIy
untritthful sources.
Scction U will be devoted to a consideration of thc pru~mdingslcading up
to the adoption of rcsolution 2145 (XXI), and will demonstrate t hat the above-
mentioncd politicai motivations, couplcd with a failure by delegaies to have
rcgard tn riIl the information available to thein, pIayed a dccisivc roIe in the
relevant proçocdings of the GeneraI AsscmbIy. Section E will contain a resumB
of subsequent evenis which fortify the cnnclusions Aowing from the previous
sccrions, arld in secrion F the South African Giivcrnrncnt wiH give an expoci-
!ion of rcccnt inforination conceming the Territov from which ii wiI1 appcar
fhar it worild be dcirimcnta1 to the interests of the inhabitants if South A f n ~ i
were to withdraw therefl-on1 in the light of thc incrcased progres and well-
being shown in al1 spheres of Iifc.
B. The Polifical Backgmrind to the Adoption uf Rmlution 2145 (XXI)

4. In i t s Counter-Memorial in the Soirth WPA!Africrr cases ihr: Govcrnrnent
of South Africu dcnionstrated that jt was only arter the outbrcak of the Second
World Wai that the impetus of anii-coloniaI feeling in Africa gathered monien-
ium 3 . The demand for an evcr-increasinp s h a i ~in the governmenis of iheir
countries fou~idgrowing support antong the politically comcious .fricans,
and was sti-ongly i n f l u e n d by evcnts in othcr ~isrtsof the world, particuIariy
! Vide Chap. VI, paras. 5-1 5 , supro.

? It is (rue that operative paragraph 3 nf resnlution 2145 {XXI) rcferrcd to South
Africa'sfai11~r.ei~>rulftlits obligations cznd t i i ensure the raid wcll-hcing and security.
hut from the concext it appcars reasonably clearly iliai it was precisely the obligation
to ensurc the well-king and sccurity ot' the indigenous inhabitanis ii'hich South
Africa was allegd io havc failcd to lùlfil. T h ~ sis borne out by ihe attacks, dur-
ing ihc debares preceding thc adoption or the resolution: on the applicaiion of tbc
policy [if scparatc developrnent tu thc -1-crritory.
I.C.J. Pfendin~s,South Ivesr Africu. Vol. I l , pp. 431-438.
WKITI'EN ~ A T E M E ~OF
T SOUTH A ~ - K I C A 727
Asia. 'I'hc rcsirl t of this awakcning African nationalisrn or anti-culoniaiisni
forms a part of contemp-ciiary history and it is acmrdingly not necessary to
give a fu1I awoiint thercof in this writlen sralement. It wüs refiected, inter
uli(1, in the constirutional dcvclopmcnt o f thc various territories in Africa,
'.
çuuth of tlie Sahara T k r c are, however, certrtiit aspects of the anti-colonial
muvernent which are of ivlevance for present purpows, and which wilI con-
q u e n t I y be dwlt with in the succlyding paragrsphs. ...
5. The developtnent of participatioil by Af~i~arIs in the ceritral governnient
of thcir countries continued to k a gradiial process up ta approximately the
1950s, after which it tna~eda( an cvcr-accclcratjng pacc. 'I'his reflwtcù not
onIy the results of a sirengthened demand for independence on the part of
rhe peoples of the territories concemed, bu1 aIso lhe dfects of increaqed pres-
sure in internat ianaI Iife, parlicularly by ithc ncwly independent Statcs of Afnca
and Asia.
'I'he result was that, whcreas up to the early 1950s it was gcnemlIy accepltd
that many o r most of the tcrrirorics in Africa would not be grantcd indcpcn-
dcncc for a gcncration or inore, nlost of ihem rrtiaind self-guveriinient or
independence hefore the ~tirdof lhat dtvacic, or within the first few )vars or
ihe next. This accelerzttttd political progres?? refiected, inrer alil;, a significani
change in attitudes towart1s the statc of advünccrncnt rcquired for seIf-govern-
men[ or independen=. The earlier attitude had been that independene or
self-government should net he granted bet'ore a territory had reached a reasan-
nbIy advanceci stage of eccinonlic, sociiiI and political dcvclopment. The colo-
nial and former colonial pcoplcs ivere. however, progre.3sively less prepared
to acwpt the valiàity of tliis attirude. In this regard, for instance, the repre-
sentative of Ciuinea is r e p ~ t e dIo havc said in 1961 :
"lrrcspectivc of th,: state of development of ti piirticular 'I'erri tory, its
full independene ba;ed on territorial integrity was the sine yun tion for
rapid progress in al[ iields 2."
h h n y sirnilar statcnlcnrs were made in vürioirs Cnired Nations organs as
from the Iatter years of the 1950s 3.
6. This view found increasing support in world politics, In 19M) the well-
knoivn Declaration on tP:c G r a n t i n ~OF Independence 10 ColoniaI Countrics
and Peoples was adripted :>y thc: United Nations Gcncral Asscmbly by 89 votes
io ni1 wiih 9 iibsteniions ( i d 1 Afrimn rnernbers, who were present, voting with
the majority; the Colonial powers and administering authorities gencrally
a hsiainingj -{. tt contained, inrcr nlin, thc following paragraphs :
"1. The subjcction of peopIes io aIien subjuga:alion.dorninütion and cxpIoi-
iation consiirute:. a dcniiil of fundamcnta! huninn rights, is contnry
to the Charicr uf the United Nations and is an iinpedimcnt to the
proinotion of worlù peace and CO-opcration.
2. AI1 peoplei havr the righi to self-deierrninaiion; by virtue of that
right thcy frcely detertnii~etheir polilical sut us and frcely pursiie
t heir ecnnomic, siiciaI and crilrural ùevclopnlent.
3. inuci~(pracyof pciiiirnf, ~conomic,socio! or ecitirn:ir>nai prepciredt~es.~
- n pretext for ciel(zyitzg i1zdep~rzdet1cc.
sfioitkl sever s e r ~ tns
:- Ibid.,Opp.H ,Sixiccnth
GA,
509-527.
Scss., Fciurlh Ctitrim., I l 86th Meeting, 26 Oct. 1961, P. 186.
V r d ~1.c.J . J5'ccudings.S,iuih Wesl Africrr, Vol. II, pp. 441-445.
.
GA, O R , Fifleçnih Ses:. 947th Plenary Meeting. 14 Dec. 1960,pp. 1273-1174.
This rcsolutioi~is reproduced as Anncx h to Chrip. VI. abovc.
......*...**......**_....... f . . . . . . . I . . * _
5. fmmediore neps sknll be taken, in Trust and Non-Self-Governinç Ter-

ritiirics or al1 other territories which have not yet attained indepen-
delice, to transfer rtll powers tu the peopies of those territuries, u~irh-
ou.: mzy condirions or res~r~~oiotis, in awrdance with thcir freely
cxlircswd wilI and desire, without any distinctinn as to race, creed
or colour, iir order fo enable tkem tu rrrjoy cut~pleteinriepe~ideiiccnPtd
,frerdom '." {Itnlicli added.)
Referencr: was made to this dcclarütion, and rcliancc pIiiccd thcrcon, in
numcrous subsequent resoIutions.
7. l'here are two aspects of [lie proceçs or decoloni-/;ition which require
emphasisai this siagc. Thc first, which hüs aircirdy bccn notcd, is its uncxpxted
swiftness. T'he othcr, which is probably I-iotli a cause and an effect of the rapi-
dity with which the leaders of the decolonization campai= attained rheir
major ends, is thc grrai dcal of cmotion cngcndcrcd by this issuc. Amongst
rnany people, particularly in the i~exvlyindepiident States, there deveIopcd
an intense desire to eliminate the Iast vestiges o f wloniaIism (or what seemed
io ~ h c mto aniount to coIonialism). Examples therenf wiIl he given brlow,
where it will be sliown l h a t Souih Africa's policics have frequently been stig-
marized ;ts amounting ro ç01onialism '.
S. Thc South African W e r n m e n t resents sratements to this effeci. Tt is not
oppmd to the basic principIe of self-dctcrmination (as distinyuished from the
mariner in which some States seek ro apply it), and it does not question iht:
soundness of the principle ihat ~uardianshipand tru%teeship exerciwd ovcr
peopfes u n ~ b i e10 stand by ihcrnsclvcs, arc inhcrcntIy intcndcd to be terrninated
upon allainment by the "wards" of a stage of rnarurity which enablcs theni to
dccidt: upon their own future. If, upon reachingsuch a stage, the wards strongty
desire self-governnien~and indepcndcncc, thcrc can l x no question about a
moral righr on their pan to attain such id-[, nor about the soundness of the
policy of allnwing then1 to do so-in both instances, however. subjecr to diie
considemiion ofudjustmcnis to bc madc, and of a balance to bc struck brtween
competing or confficting daims of comparalile mord pntency on thc part of
UIhcrs.
As far as South West Africa is conccrncd, thc South African Goirernmcnt
has clearIy pledgcd itscIf that the objective of irs adiiiinistration is seIfMeter-
mination for al1 the peopfes of Souih West AFrica. Thus, in his statement
More the Genenl Assenibly on 12 O c t u h r 1966, thc South African Forcign
Minister spoke of "rhc advancement of the peoples concerned to their self-
detcrrnination and self-reaIi7ation" as "a principle IO which Ithe South Aïrican]
Government is wnipIetely comniittcd 3".
Cln 14 necember 1967 the South African represeirtativc .in the GeiteraI
Asseinbly riopatcd this objective in the fol lowing words:
"The principle of self-determinatioii to which the South Afriçan Govern-
mcnt is commirted leaves ihe way open for unlirniled possibiIities com-
patible with the cfio~ccwhich each population group miyht cvcntuaily
GA, rcsotutiun 1514 (XV), 14 Ucc. 1960. in GA, OR,Fiftccnth Stss., Sup. No.
Id (A/4684), p. 67.
: Vide C.E., Mi-. Dugrsurcn (Mongolia). GA. UR, Ninctccnth S a s . , 1306th
Plenarv Mecring, 17 Dec. 1964, p. 9 : %Ir. Achkar (Guinca), G A , -OR,Nineteenih
Sess., 1308th PIenary Meeting, 21 Dw. 14M, p. 14.
' GA, O R , Twentg-first Scss., 1439111Plenary Meeting, 17 Oct. 1966, p. 21.
WRIT:nCES STATFMENT OF; SOCTH AFRICA 729
wish to makc. Tlic Couth African Guwmmcnt's approacl~to the wholc
question of self-determination wüs outlined by various rncmbers of niy
Government. For imtance, the former Prime Minister stated in 19634 in
1hc South Africün Parliament t h r . . .
'. . . the basic pririciples of justice require ihat wr. should not aIlow
the devclopmcnt ol' one impcriaIistic group but that each RrOUp shorild
be able to enjoy it ; full rights: the Whites, the Ovambos, the Hereros,
the Ukavangos, th(: Namas, the Damaras and the B8iieis' '."
9. The charger that Sruth Africa pursues coIonialist poiicies and lhal i i
deni- the inhabitants of South Weqt Africa any progres? roward~self-deter-
mination, are based upon the niistakcn prcmisc that xIf-dctermination in any
given territory inusi ne=sariIy foIIow a particuIar pattern. namcly universal
adult suffrage of the ppoulaation as a whole withjn a sinde terrirorial unit.
There is no justification for swh a prcmisc, which entircIy ignores the ract thni
circumsiances ntay di& frorn one territory to anothei.. and that such a pre-
deteimined pattern niay not l x suilable at al1 in the circun.istances of a parti-
cular terriiory. No such premise was contained in the objectives of thc man-
Jatcs system, nor is it cnibodied iii the principles enuncialed in the Charter
of the United Yations. On the contrary, the vcry provisions 01' Arricle 73 of
the Charter refute such a proposition. This Article speaks of thc recognition
of the principIc thüt thc jnlerests of the inhabitants of Non-Çelf-Governing
Tetritories are paramoulit and requires t hat their advancen~cntis ro be ensured
"wiih due respect for the culture of the peoples concerne&'. It procc;eds io
proclaim in expIicit tcrms the "ideal to devcIop self-govcmment, to take duc
account of the political aspiraiions of the pmpIcs and to ajsist them in the
progressiile developrnent of rheir free political insrirutions, accordiny tu the
pariicular cjrcumstances oî each ierritury and its pcoptcs iii their varying
stages of advai~ceinent''.
For present purposes i! is of no cnnsequence whether South Wcst Africa
is o r is not a Non-ScIf-Gr~verningTerritory wilhin Lhc rneaning of ArticIc 73.
Tn prornoting progress towards seif-detcminatioii i t musr be a principle of .
universal application that she interats of the peoples concerned arc pstwmount,
that duc üccount should 6: taken of ihcir political aspirations, and rhat proper
regard sltouId t>e had for the circumstances of each territow, its peopks and
thtir varying slages of adrmcement.
10. The praceeding hrriught against South Afrim by Ethiopia and Libcria
in this Court. as welI as the adoption of various relevant resolurions by organs
of the United Nations culminating in rhe adoption of General Assernbly rcso-
lution 2145 (XXf). are to be çeen as part of the political campaign aiirred at
independena for South West Africa (upon the basis of universal franchise
within a unitary system) irs an overriding objective to which al1 athcr aspwts
and indications are to b2 subordinated. 'I'his feature appcars clearly from
debates at, and ~soluticinsof, conferen~sof certain States and opans
of the United Nations, -uhich will be h I t with in the succeeding para-
graphs.
1 1 . Jn JuIy 1359, a co~iference%,asheId at SanniquelIie. Liberia. between
the Presidents of Liberia and Giiinca, and the Prime Minister of Ghana. In
a joint communiqué the lcadcrs of the said three States stüted in regard to
South West Africii:
' UN doc. A!PV. 1632 (14 Dcc. 1967). pp. 89-90.

"WC: maintain that this Terrirory is in fact a Trust Territory of ihc United
Natioris, and a. such the United Nations mnnof relinquish i ts IegaI and
nloral responsibiIi ties to the indigcnous inhabitants ~ h are o eniiiled iu
the sa-ne treatmcnt given tu vther Trust Tersitorics. ConscqrientIy, ive
will rcquest the LJnited Xations to give further consideration ro this
question, declare rite Territory no1 a par1 of South Airiça and fix a date
for thc independence of the Trust Territory of South West Africa '."
It is to Iic norcd that the composite aims o l trusteeship as set out in the
Charter, viz., to promote the advancerneni ol the inhabitanis of the icrriiorics
in a niimber of diffcrcnt respects, had, in the minds of the authors of the corn-
rnuniqué, t i e n reduced to rhe one dnçle aim, namely rhe speedy attainment
of indepeiidence irrespective of ot hcr cconsiderations.
12. As dcmonstrüted in the Counter-Meniorial in the South Wcst Afiicn
c m s , the same attitude towards dependeni rerritorieç, and parlicularIy Sou th
Wesl Africii, pcrrncstcd thc procccdings of thc Monrovia Confercnce of Foreign
Ministers of Independent African States held later in ihe same year 2, and of
the Second ConFerence of Independen[ Afriçan Slalw in 1960 ?. At this Con-
fcrcncc, a rcsolutian i w s adopted which appealed to the United Nations "ro
f i x a clare JOT the it~drpeirckirceof the territory uf Svrrtlt West Africci '-'. (Italics
added.) This point of ~ i c w\vas again ernbodied in a resolution takcn by the
Summit anference rif independent African States ar its Meetjng in Addis
Ababa oii 22 to 25 May 1963, and in which ihc South WPSIAfiiru cases firert:
considereù to be part of a concerted effort to advance the process of "decolo-
nization" fowards the "unconditional aitainment of national independence"
of ali African territories >.
13. Also in the United Nations, actioii relative to South West Afriça was
considercd in be an aswct of "decoloni?;ition". In 1 Y61 the Generrt Assembly
adopted resolution 1702 (XVI) which, recalIing thc Dwtaration on ihe Granring
of Independence $0CoIonial Countries and Peoples, decided to cstüblish a
Unitcd Nations Special Chfilmittee for South West Afrim whose task would
be to achievc, in consultation with South Africa, ititer niih. thc foilowing
objeclive:
" l e ) Prepiiraticins for gcncral elcctions to thc LcgisIiitivc Asscmbly,
based on universai adult suffrage, to be held as soon as possible undcr
the suyiervision and conrrol of the Unifed Nations 6."
During its next sessiun in 1962 the Gcncral Asscrnbly adopleci rcsolution
1805 (XVII) in which resoluiion 1702 (XVI) was rewlled and re-afir~ned.7'lie
Secretary-Cieneral of the Uniled Kations was rcqucstcd. intir alin, "lo take aIl
necessary sleps io cstablish an effective United Nations presencc in South
Wcst Africa 7". Accarding to a statemmt of Mr. Purevjal of Mongolia tlie
relevant dr:itt resolurion was sponsored by the Afro-Asian group
''Joint Corninuniqué", in The Fir.~! M'est Afr:'ra?~Sunziirit Coiifcrence 11leldul

SaivriqueiIie, 15-19 July 1959, issued by the Libçriari InTormatjo~iService, p. 30.
4-8Aug. 1959. V i d ~Legum. C.,Pon-Afiirunisiri (1952). p. 165.
1.C.J. Pfeudings.Sourh Wcsf Africrr, Vol. II, pp. 447478.
+ Legum, rip. cit., p. 168.
' OfiiciaI text. resotutions. i n Suniiirit, C.I.A.Sjflt.n.Z{Kev.Z, pp. 4 5 .
"GA, U R ,Sixteeoth Sess.. Sup. No. 17 (Ai51 001,p. 40.
Ibid., Sevcntccnth Srss., Sup. No. 17 (A!5217), p. 39.
Ihid., Fourth Comm.. 1386th Meeting, 15 Nnv. 1962.
"sacrcd cause of ridding hiiniiinity of thc shamc of apartheid", which hc dc-
scribed as "this crime against humanity '".
15. The :jources of the above statcmcnts, in so far as they are not mere
staternents uf poIitical artitudes, and in so far as thcy purport tu havc üny
factual hasis at all, arc to br found in allegations made by petitioners.
It is irn~ossibleto understand the trüe nalure or the proceedings in the
United Nations organs relative ta conditions in South Wcst Africa u n I m one
has regard ta the rolewhich pctitioners arid petitions have play& in the deliber-
ütions of siich organs. I'ersons with reaI or irnaginary pievances against rhe
South Afriran administration in South West Africa wrnrnenced, in ihe early
1950ç, ro p:tit~on the United Nations. The oral hearing of petitioners by tlie
organization was approved by this Court in 1956'. Thereafter, in course of
tirne, a class of professiomI petitioners came irito king, which play& a big
rolc in the açlivities of the United Nations, as will bc shown.
17. In their Mcrnorials in t lie South West Africa caws the AppIicants (Ethio-
pia and Litieria) relied on a number of exiraers from petitions (both oral and
written). Thcy refcrred Lo "the cumuIative effea and thrust of thc pctitions,
received frrirn so wiùc a varicty of independent sources". and advancecl the
prupusiiicin that the extracts quoted by ihcm iiIusirated "the inanner in which
the daiIy ]ives oi the inhabitants are affected 3". South Africa dcalt thoroughly
'
with rhis aspect in its Cuunter-Mernorial arid demonstrated tliat, on the
whole, the petitions relied on by the Applicmts had emanated from a relatively
srnaIl group of biased professional petitianers. Furthemore, each and cvcry
extract was fuIly dealt with. thc truc facts were set out and the gross distortioiis
and pure fabrications in the extracts were exposed. Ir was also shown thai a
large percentage of the petitioners {whn in any event constitutcd a smalI body
of men) were not cvcn rcsidcnt in Soutli West Africa, and that their activities
wcrc actuated by political ambition. In thcir RcpIy the Appiicanis did no1
con trovert this demunsrration; indeed. the Reply was totatly silent on this
point.
Duriny ihe course of the oral proceedings in the Sorrtk W ~ sAji.i.cnt cases
the Applicants adrnitted as true al1 South ATrica's hctuaI allegatinns in the
pieadings This mmnt, inrer ofin, that South Afncia's statcmcnts concerning
the petitioiicrs, which prcived the utter unreliability of their allegations, staod
adrnitted. Ilndeed, the agent of the Applicants was c~rnpelIedto state: "The
G A . OR, t 3Mih Plenary Meeting, 17 Dec. 191i4, p. I I . Thc aforcsaid cniotional

approach ic îurther illustrated by statements madc by ihc foltowing roprcscntatives :
Mr. Tchictietle (Chtigo, Brauavillc), GA, UR, Sixtecnth Sess., 1037th Plenary
Meeting. 16 Oct. 1961. pp. 459,460: Mr.Yupiampu (Ghana), GA, OR,Seventeenth
Sess., 1143rd PIcnary Mccting, 5 Oct. 1962, p. 345; Mr. Mazigh (tibya), GA. OR,
Ninctccnth Sess., 1296th Plmary Meeting, 9 Dec. 1964, p. 3 ; Mr.Dualeh (Somalia).
G A , OH,Kineieçnth Sess., 1290th Pleiiary Meeting, 4 Dec. 1964, p. 7 ; Mr. Mahmoud
Kiad (LAR),GA, OR, Xineteenth Sess., 1298th Plenriry Meeting, IO Dec. 1P M , p. 4 ;
Mr. Kümbrina {Tanmnia), GA. OR.Ninetecnth %:.S.. 1298th Plenary Meeting, p.15 ;
Mr. Chalniers (Haiti), GA, OR. Nineteenth Sess., 1304th Picnury Meeiing, 16 Dec.
1964. p. 3: Mt-. Karunatilleke (Ceylan), GA, OR, Twelfth Sms., Spec. Pol. Comm.,
56t h Meeting, 31 Oci. 1947, p. 3 1 .
Adnii.ssiAility nf1fruuinb.y of Peritio~ietsby rbe Cbmi~iitreeon Soitfh Wesi Afrira,
Advi.rnry Opinioti, I.C.J. Aeporrs 1956, p. 23.
V I . C , JPrentiings,
. Soutli Ivesr Africa. Vcd. 1, p. 67.
Ibld.. VoI. I V , pp. 1 etseg.
ibid., Vul. IX,p. 21.
Applicants have nor reIil:d upon Ihe amuracy of staternents in such ptti-
tions . . . '"
And, after lhis wncession had been made, the South African counsel said:
". . .we know, and vuehave demanstrated on the pleadings aiready, that
no reiiance can he placed upon [the] evidcnce [of the ppctitioncrsj. We
would consider quite seriously, i f nly learned friends should wish 1 0 cal1
them, whethcr we oiight not to offer to pay their witnws f e s sn as tn
altow us the priiriIege of cross~xuminingthcm -."
The AppIicants dirl not rcacr to this invitation.
18. In his cvidenw giveri in the course of t he oral proceedings Mr. Dahimann
confirrned South Africa's demonstrstion thüt thc pctitioncrs constituted a
srnaII body of men with ~~olitical ambitions? As regards the veracity of the
petitioncrs, Mr.Dahlmanri said rhe Tollowing:
"Tu uu in Svuth N'est Africa, it is sometimes very hard to uudersland
these petitions. Man:# of them, whether rhey corne from within South
West Africa o r from abroad, contain faIse ststcments and serious dis-
tortions and cxaggcra lions of the rai situation. Only to name a few which
are made ver). often, for example, that there is a large scale of militarizaiion
in South West Africa, there is a niissile tracking station, thst the non-
Whitcs within the tcrritory [ive in conditions of slavery, that geiioçide is
cornrnitted agaiiist the non-Whites, that thcy are being exterminated or
murdered, that they have no schuoIs, no hospitals 4."
Thc Applicants did not cvcn attempt to attack this evidence in crossexaini-
nation, nor did ttiey cal1 a ny aitness fa contradict Mr. Dahlmann. It is clear,
iherefore, that in the South West Africa cases it was conclusively established
that no rdiance could be placed on the evidence of the peiitioners. In the
succeeding paragiaphs it !vil1 be s h o w IO what extent, by contrasr, reIiance
was placed on thcir cviderice in orgms of lhe United Nations.
19. A most cursory re:idirig of statcmcnts madc during relevant debates
reriders i t c k a r that the grratest importance was attached to the aIlcgations of
the pctjtioners before Uniyed Nations organs, that even the niost fanciful alle-
gations were unquestioningly accepted as establishing thc truth. and that the
hccivy rc[iant;t: which war placed on the said eviderice played an egtremely
important roIe in the nature of the resuIiitions which were ûdopted by Ihe
various Cbmniittees ol th6 United Nations and also by thc Gcncral Aswmbly
ilself. ï h i s is htirdly s u ~ r i s i n gin view of the comman purpose of certain
States and the petitioners i o impose a partiçiiIar type of potitical settlement on
South West Africa.
T h e triannec in which tks cornmon purpose functions in practice, can bcst bc
iIIuslrated by showing how certain rmtastic statenienis readily appcar in the
cvidence of the petitionen, and how thcy arc a w p t e d and echoed and acted
upon in LMed Nations O:-gans,paving the ivay for acceptance of a resoiution
condemning South Africa's administration of South West Africa. Space does
nnt permit the drawing of 1 ruII picturc. In thc cmotional and binsed serting of
the carnpaign ayiiinst Soutli Africrr aiih which tioth the petitioncrs and certain
delegations to the United Idatiom were associated, the artacks on South Africa
Ibid, p. 42.
Ibid.,p. 110.
V b i d . , VOL.XI. pp.455.fr srq.
W d . ,p. 480.
and its policies bristlc wiih factiial inaccuracies, with distortions and with
hseless acr:usations. It is prnposed ta deaI only wi th a few categories ofchrges
which rcgularly dominalcd ihc disussions.
20. Alley~tionswhich describe South Africa's policics as k i n g policies of
gcnwiùc, clr equaI t o getinocide, occurred wi th monoronous regularity. South
Africa's policics wcrc charsctcrizcd as racial exlerrnina~ionand as having the
objective o f ttie pliysical destruction of a nation. These allegations are SV
prcposterot is that they require no refulat ion-inded, they were not erreen
raised by tlie Applicants in the Souift Wesr Africa cascs.
In thc report of ihe Cornmittee on Sorit h West Africa to the 16th Sessioi~of
the Genera:~,AssembIy in 1861, Mr. Ngaviriie of the South West Africa National
Union {Sb-ANUJ was quoted as follows:
"MI. 'lgavirue stütcd that whiIe it was ribvioiis rhat there was a great
necd for weltàre services, oiie could not zrcpect philanthrnpy from the
ruthless South African Govcrnmcn t which was bent on the task of doing
anything possihie that m~nulddirectly or indircctly exterminrite the in-
digenous population. Hence, there was abwlutely nathing done to promotc
thc gcitcrül welfarc of thc indigcnous popuiation . . . l"
Mr. Kerina, who was at the tiine the Presidcnt of the Ovamboland PeopIs'
Orgminizatiiin, referred in Octoher 1959 to artificial mnditirins which had bccn
crcatcù, ivith thc drought as prctcxt, "in order ici put hundreds of thoüsands of
human beii-igs at the mercy of the Govcrnrncnt and to wipe out a race 2"; and
on 8 May 19S4, Mr. Mbaerra of SWANU, with reference to the OdcndaaI
Commission Rcport 3, statcd:
"The Commission was appointed to devise rneans through which a large
nuniber of Africans or non-Whitcs shodd i x exierminated tlirougli
stant;tiion under the guise of being developeri . . . unless the United Nations
takes imrnediate action to prevent Verwoerd and his gang frnm carrying
out their programme for racial genocidc, thcrc will br: a serious danger
that rnay be beyond the control of rhis Organization '."
21. The next category of accusations ofren made by petitioners is to the
eftèct that South Africa herds the non-White population into cunceniralion
camps, i h i ihc non-Whites are treated like animais, that thcy have k e n
reduced to sukhuman status and that conditions of naked terror exist. 'I'hus,
Mr. Ko7origuizi in kis oral statenient to the Cornmittee on South Wcst. Afriw
said that thc South African Govcmment " h d ~ranst'ormedour cciuntn into a
hiigc concentration cainp and our people intv s I a \ ~ sin the name of its exclusive
palicy of white siipremacy r", and Mr. Kerina stated bcforc the Fourth Com-
~iiitteeihat Nativcs wcrc "hcrdcd intv concentratioii canips 6".
GA, Of:. Sixtccnth Scss., Sup. So. 12 A (A/492(i), p. 17.

thid.. Fourteenth Sas., Fourlh Comm., 909tti Meeting. 14 Oct. 1959. p. 136.
" Yi& I.C. J. Pleudit~gs,Sniith H'e.qr Afiicu, Vol. IV, p. 201.
' U N doc. AjAC.109jPV.275 (1 5 JuIy 1964), pp. 76-27.
GA, OR, Fourteenth Sess., Sup. No. 12 (Ai4191), p. 41.
fi GA, O R , EIeve~~th Sess., Fourtli Comm., S7Ist hfee~ing,1 1 DE. 1956, p. 11.
Staicments in similar veiii wcre made by the folli,wing petitioners: Mt. Nujonia,
GA, O R . Pifteenth Scss., Foiirth Cornni., 1052nd Meeting, 1 5 Nov. 1960, pp. 312,
3 13; Rev. Markus Kiiciper, GA, OR,Fifteenih Se%., Fourth Comm., 1050th M e t -
ing. 14 Nov. 1960, pp. 302, 303; Mr. Kuhangua. G A , O H , Fifieenth Sess., Fourtli
Comm..1052nd Meeting, 15 Nov. 1960, p. 31 1 ; Mr. Kuhangua, G A , O R , Sixteenth
Scss., Fourth Conim.. I219rh Meeting, 21 Nov. 196 1, p. 390.
W W TEX STATEMENT OP SO- AFRICA 735
22. The third category n f acçusations cornpriscs allcgations which are oflen
lcvclIcd and also rcfcctcd in the reports of the Conmittee on Soiith West
Africa, to tlie effect tliat Sorith A f r i ~ üis depriving the non-mite population in
South West Africa of "th<:richest part nf the Territory" and confininy thcm t o
"desert-Iike" or "unhealtlty" areas ( o rnake way Tor while xitlers.
These charges were also made by the Applicants in the South Wpst Afiica
cases. For example, in thcir Mernorials they alIeged rhat "the mandatory has
prrigressively reduced the proportion of faim land uvailablr: for culiivation or
'".
pastoral use by the4Nativt'popiiIation . . . And in thcir Rcply the Appliciints
statcd that " 'non-White' inhabitants are confined to the poorest arcas of thc
'".
Territory . . . 1'hesechr.rgcs wcrc Iciicr abandoncd by iht: Applicants, and the
unirnability ~hereor,and the falsity of the allegations containcd in the ertmcts
which wiIl bc cjted hereunùcr, are dernonsirateci by a reference to ihc truc facts
as set out in South Africa's pleading in the Svittfr West Afiica cases 3, a iid
abo the evidence of Profesor Logan givcn during the orai proceedings '.
73. On 16 Novcmber 1!160, Mr. Kozonguizi stated kfore the Fourth Com-
mittee:
".. . the reservations in which the African population iived wcre in thc
most infertile part of rhc Tcrritory, for cxarnplc in thc Kalahari Desert. If
any govd watcr wcrc found in a reservation, the area was hanùcd over to
Furopean farnrers an J the Africans were forced 10 move away '."
Mr. Niijorna, another petiiioner, stated t hat the South African Governrnenl
had intendcd "to climinatc a11 Nati\,e reserves in the Police Zone in ordcr to
enable new settlers to corne io the country 6", and r kat "the Africans had
already becn forced to 1c:lve their homes for a dmert area wiihoul süilicient
water or pasturage for their mtiIe 7".
24. Many çxarnples may be given of how rhe petitioners' allegaiions were
simply echoed by represeatatives of certain States. '1-hus, Mr. MghdelIch uf
Tanganyika, now l'anzitnia, referred to tlie South African "policy of g n o -
cide Mr. Gassssou of l'ogo allegcd thüt the people in South West Africa
"had been dying of hungcr or had b n murdered in concentration canips9";
and Mr. DialIo of Mali .;ad in 1362 thul "the indignous population were
herded into reserves consii;ting of the I e x t fertile land l0". .
25. The last calegory of aIIegations to which rcfcrcncc is made by way of
ilIusfration, mmprixs allegations relating to tlie alIeged militarizrttion or
South Wcst Afrjca. In this regard it is prtincnt to note thüt in the M-emorial in
the So~ifhGYesf Africa c:tses the Applicants alleged ihat Snuth Africa hird
established and maintaincd thrcc rnili tory bases wiihin South West Africa ".
This alfegation,wIiich had i i origin
~ in Unitcd Vat ions rcsoiutions based nn the
I.C.J. Pieuding.~,South IYest Aliicu, Vol. 1, p. 1 1 8.

Jhid., Vol. I V , p. 464.
IBid., Vol. YI,pp. 255-2ti6.
' ihid., Vol. X,pp. 367-363.
' GA, OR, Firieenth &S.. Fourth Comrn., 1U53rd Mmting, i6 Kuv. 1960, p. 3I7.
Ibid., Sewnicmth Stss.. Fourth Comm., 1 371si Mccting, 2 Nov. 1962, p. 275.
' Ihid.,1374th Meeiing, 6 Nov. 1962, p. 292. l'ide al50 tlic statcment made by the
Rev. Markus Kooper at ihe:;arnc mectjng. p. 291.
Y Ibid., Spec. Pol. Comm.. 328th MeLing, 10 0çt. 1962, p. 1.
Ibid., Fiitccnth Scss., Fourth Cornm., 1076ili Meetirig, 6 Dec. 1960, p. 457.
'O Ibid., Scvcntwnth Scss.. Fourdi Com~n.,1385th Meeting, IS Nov. 1962, p. 377.
For further çxnmples. i'j& 1.C.J. Pleadings, Soirth H'csr AJi-ica, Vol. XII, pp. f 16 124.
" I . C J . Pieadings, South IVest Africu, Vol. 1, pp. 181 - 1 83.
evidence of petitioners, was refiited in South Afriw's Counter-Mernorial, wtiere
i t was pointxi out that a full cxpIanation, showing an absence of mililarization,
had been given in 1959 to the Fourth Corn mi ttee hy South Africa's represen-
tativc t ty, thc Applicantsadmittcd, for thcpurposcs uf ~ h prococdings,
E v c ~ual c
South Africa's denial of the existence of niilitary bases and did not attempt to
coniradict Ihe tvidcnce of GentraI Marshail Io lhe effect ihat he had not scen
anything in South West Africa that cnuld he regarded as a rnilitary hase, and
t hat iht: Territory was l e s militarizcd and mort: under-armed than any territvry
'.
of its sizc hf had cver seen in the world Indecd, thc Applicants' agent referred
ra GeneraI ~ a r s h a 1as
1 "a rmgni7.ed tnilitary autharity and ividely read as such
in our natii-e country, [Le., ihc U.S.A.] 3" and sitid coricerning the inspection
which the CicncraI had conductcd in South LVcst Africa: ".. . 1 may say that
this is the f i ~ inspection
t of which the Cnited Vations wiII have heard and this
informaticin will bc trcinsrniitcd to thcrn +."
26. Dcsp:,tc the above, more or less identical allcgations continucd to be
made. in this regard the 19155repoir of the Speci:~IComtnittw on the Situation
with regard to Ihr: Zrnplçmcn~ationof the Declaralion on the Granting or
Indcpcndcnce to Colonial Countries and PeopIes, dated 19 August 1965, is
illuminating. According to this report Mr. Nujoma of SN'AIQ srated that
"in ~ioIalionof ihc Mandatc, South Africa had tstablished ~niliiarybases in
Windhoek, Walvis Bay and at Katinia MuliIo in the Eastern Caprivi Zipfel j",
and Mr. Kuhmgua said thai il was the Cornniirtee's dtrty to seek effective
ways 10 put an cnd to "thc aparrf~eidrcgirnc's rnilitary ventures in thc inter-
national telritory of Soutli West Africa". 1-Ie also referred to tlie "heavy
rnilitary buiid-up in Suuth West Africa 6". Anvrher petitioncr, Mr. Kerina, felt
it fit to state that "South Afriw had estahlished numerous n~iliiary bases in
South West Africa . . . ?".
Bu[ this was not aI1-Mr. Make, of the pan-Africanist Congress, who had
never set f m t in South West Africa, testified ihat "as part af its rnilitary
acti~ilies,South Af~icawas nuw building nucIclir rractors in iis own counlry
and in South West Africa &". Mr. Keiina siid that "the pcople of South N'est
Africa were not surprised ro see, . . that a niicIear reactor had been buiIt in
their couniry Y"; and Mr. Kuhiinyua stiitcd "that the grerrtest danger to South
West Afnca lay in the Federal Repirblic of Clerinany's decision to cstabIish a
racket station in the Namib Desert 'O".
These itIIcgiitions ivcrc intendcd to rcfcr tu thc Max Planck lnstitute for
Aeronomy üt Tsumeb. lt is therefore pertinent to note thal in ihe oral prooeed-
ings during 1965 General Marshall testified that he had visitcd thc iinstit ute üt
Tsumeb and that it had no rniIitsry function whatsoever ".
27. Once agairi the petitioners' allegations were unhesit~ringly acwpted.
7-he representalive of Tanzania is repurted to have said:
-
' I. C.J. Pkaddigs, South WL>-tAfrira, Vol. 1V, p. 60. .
' Ibi(I.. Vcd. lx, pp. 21 and235; Yol.XI, p. 587.
Ibid., Vol. XI, p. 517.
Ibid., p. 588.
V N doc. A)ooOO~Rev.1, para. 77, p. Ilh, in GA. OR.Scvcntccnrh Srss,. Annexes
fiiddendum t o agcnda item 23).
O ?hiri., p.130.
Ihid.. p. 1 :Il;.
" Iliid., p.127.
Ibid., p. 134.
l3 Ibid., p. 128.
" 1.C.J.Plcadit~g5,Suuih Wcst Africir, Vol. XI, p. 58 5.
30. Although the South African rcprcxntülivas- never attendcd the hearing
or pezitioncrs, bccüusc of Souih Afriw's conteniion thal the Cornmittees con-
ccmcd were not coinpetent to grant suçh hearings, they did at times gjve cIear
factuaI information concerning rhe statements or petitioners, and co~rcctcd
unrrue and crroncous cvidcnrr: given by thein. liniurtuniitely, the reactions of
rcpresentat ives of ather States werc oftcn tu di5rniss the staternenrs of South
Africa's representative and to confirm their inrplic~tfaith in the allcgations of
the petition=rs. Thus, Mr. Achkar or Guinea said:
"Th(:representati\*eof Austratia had suggested that the report of thc:
Committcc on South Wcst Africa rriight not bc fu1Iy in accordance with the
facts, since that Cornmittee had not visited the Territory; the petitioners,
hoivevt:r. were al[ froiii South West Afrjca and, while there was no r a s o n
to dciubt thcir statcmcnts, thcrt: were innurncrablc rcasons for douhting
thvse cf the Mandatory I'ower '."
And Mr. Carpio of rhe Philippines slated:
"He wondered whom the Cornmittee was expected to believe: the
petitioners, who camc frvm the Territory and asserted that the Nativc
reserves were fenced. or the Minister for Foreign Affairs: who had prob-
abIy ni:vcr bccn to the Tcmtory and whu rniiinrained that that was nut
the case 2.''
It is consequently not surprising that every year s i n e 1955 thc General
Assembly Iüis passcd rcsolutions taking note of stiitements made by the peti-
tioners 3.
31. IL i s submitted that the exposition in the, preceding psragraphs justify
thc follurvi~tgçonclusions: lirstly, that tlie allegations by petitioners on matters
of fuiidamental importüne regdrding Soiith Africa's pulicies and actions havc
b e n patenrly false; secondly, rhai such alIegations have nevcrthclcs k e i i re-
peatcd con::isicntlyand systcrnaiicatIy, and, unforiunaiely, have been ac~tpted
by a large nuinber of representatives of States and by Cornmittees and organs
of the Uniled Nations; thirdly, that the attitudes of a large numbcr of delega-
tions havc bocn infiucnccd by ihc a1lega:aiionsof pctitjoncrs; and fourthIy, that
the factors mentioned clearly pIayed a major ruIe in the adoption of Unitcd
Nations resolut ions condemning South Africa's adn~injstrafionofthc Territory.
Thc Iast conclusion is fortificd by the fact ~ h u tin thc debates preceding ihe
adoption of the aforesaid resoIutions, most of the statements made in support
thereof were merely repetirir.e of the pet i tianers' allegarions '.
II[. Kcactioi~sfo E ~ p o a r i o t ~ofthr
s Truc Farts
fa) The Yisir of Mr. Cnrpio and Dr. Martincz d~ AAfw fo Sautli West Africa
32. GencraI Assern bly resolutioii 1702 (XVI), adopted on 19 December 1961,
conlained rhe foIIowing:
-
GA, OR,Sixteenth S a s . , Fourth Cornni.: i 247rh Mecring, 13 Deç. 1961, p. 587.
Ibid., Fiftceoth Sess.. Fourth Comm., IU53rd Meeting. 16 S o v . 1960, P. 318.
n (XIV). I 7 Nou. 1959. in GA, OR,Fourteenth
Yi&, cigi, G A r ~ ~ o l u t i o1360
Sess., Sup. So. 16 (A/4354), p. 29; GA resciluii<iti 1 547 (XV),18 DCC.1960. in GA,
O R . F i k e n t h Srss., Sup. Xo. 16 {A!4684), p. 32: GA rt.sr>luiioii 1703 (Xb'I), 19 Dec.
1961. in GA. O R , Sixleenth Sess., Sup. Ko.I1(Ai5100). p. ?O.
' Vid~I.C~..J.fleudin~~s,Soirfb We.stAJrica,VoI.XII, pp. 142-153.
N'RIE-EN S-l'A'[-hMEN-ï OP SOWII APRICA 739
":!'oINI~ w i ~ hincrz,7.~edrli-cqilci~the progressive derer iorarion of I he
siiuation in South West Africa as ihc rcsiilt of the rutIiless inicnsificütion
of the policy of rrptrlticid, the dcep einotional resentincnts of al1 African
peopIes, accornpanied by the rapid expansion of South Afrim's military
forocs, and thc fact that Europeans, both sokdicrs and civilians, arc bcing
ariiied aiid iiiilitaril y ieinforced for the purpose of oppressing the indige-
nous ptupIe, al1 of which create an increasingly expiosive situation which,
if allowed to con tinuc, wilI cndanger internarional peacc and sccurity '."
This resolution pro~ededto provide for the appointinent of a Special Corn-
mittec on South Wcst Africa and charged it, inter alia, to atternpt to secure
'-evacuation from the Territory of al1 military forws of the RcpubIÎc of South
Africa ?".
33. During May 1962. the Chairman, Mr. Carpio and the Vice-Chairman,
Dr. de .41va. of the Special Cornmitfee on South West Afrim visitcd the Terri-
tory as gucsts of ihc South African Governrncnt. In thc Rcjoinder in-the South
Wesr dlricu cases fuIl detïils wcre given of this visit and of the joint corn-
inuniqué issued by the visitors and the Soirlh African Government in which
thc farrncr statcd, itrttr alia, ihai ihcy b d found no cvidence aiid hard no
atlegations that there was 2. thrcat to the pmce in South Weçr Africa, and that
there were no sigm of rniIitarizatian in the Territory or ;hat rtie indigenou!:
popirlstion was bcing cxtt:rininated. Ii was shown that the visitors were at
liberty to çee what they wished and to sjxak to whornsoevcr they dcsired in
South Wesr ATrica, and rhat Mr. Carpio was in fact a party to the issuing of
the wmrnuniqui: 3.
Tt was furthemore shovln rhür, notwi thstandiiig overwhelrniag evidence i o
rhe contrary, Mr. Carpio lafer adopted the attitude that hc hiid not bccn a
party to thc issuing of thc cornrnuniqut: and ihat Dr. dc Alva niaintained that
the oppolite was true; tliar ï t the eighth meeting of the Sliecial Cornmittee on
South West Arrica on 24 July 1962, the Chairman at lhar meeting stated that
thc joint communiqué had corne as a "diwgrwable shuck"; that at the thir-
teenth meeting of the Coinrnittee, and in reaction to Dr. de Alva's reiteration of
the role pIayed by Mc. Carpio, the Chairmm stated ttiat hjs delegation regardcd
Mr. Carpio's statement iha t hc had had no part in the draftiriç or publicatjorl
of the ccinimuniqué "as an authoritative statement"; and ikat eventually the
comniuniqii8 was not inclijded in the evidence forwnrded ro the 4'C~rnrnittcc
of Scvcnteen" and was consequenfty not considercd by thc General AsçembIy
of the United Nations '.
34. M a y dcfegates to the United Nalions had. prior to the issue of the joint
communique in 1962, cono:ntrirtcd on the folloiwing thrcc charges: a threat to
the peace, genocide, and inilitarizatinn. The main charge was rhat international
peace was being endangeretl as a result of the alleged situation in thc Tcrritory.
No less than 3 1 deIegation:. had during 19<a-I961made t h t charge, on which
heavy reliance was placcd lecause it could be used in the S ~ C U T Counçil
~ ~ Y as a
groun? for raking action against South Africa. The admission by thc ttwo cmis-
sarics of thc United Nations disposcd of the main chargc, as also the other two
serious cliarges. If these delegations. or the meinbers of the Sppecial Cornmittee
had Ihe interests of the inhabitanis of the Territory ai heart, onc would have
GArcsolution 1702(XVl),1 9 h . 1961, in U N doc. AI5100,p.39.

' Ibid., para. 2 (b), p. 40.
Snitih W csf Afric#, Voi. V, pp. 5-9.
1.C.J. PJertdii~g.~,
fbid.,pp.9-1i.
expected that the contents of the joint comrnuniquk would havc b w n ci greut
reIief to rhem. Imtcad. but perhaps not surprisingly, the generaI reaction was
that "that Communiqué had cnme as a disagreeable shock . . .'".
The poirir of inimediate importance i s that, despitc thc cvidcnct: of Dr. de
AIva and ihat of members of the Smetariat who amrnpanied the visirors,
the SpeciaI Cornmittee refus4 ?o give recrigniticin to the joinr communiqu6 ta
which Mr. Carpio and Dr. de AIva ivere parties, for thc vcry rcawn that the
declarations in thc said comrnuniqul: relevant to conditions in South West
Africa were in conflict wirh what the majority of the Committee wished the
worfd io br:Iicvc.
(b) Furiher- R~ut:fionru Fridencc provinjr ihr Absence of Mifitnriintion
35. Rcfcrcncc has alrcady bccn madc l o the fact that alIegations of militari-
zation of South West Africa continued to be niade even after the Applicants
in the Souil1 West Africn cases had admitted South Africa's façiiial averments
dernonstrating. it~tera h , an absenre of such militari7ation ?. Even General
Marshall's uncontroverted evidence ta the samc effwt failed to make any
impression on the leaders of the campaign ngainst South Africa, and their
allies. GerieraI MarshaII gave evidence &fore this Loiirt in October 1965.
During th<:priori 22 Yovember to 9 Decerrikr 1955 thc Fourth Cornmiltee
heard pctieioncrs, discusçcd the so-called question of South West Africa, and
evenfualty adopted a draft reaolutinn which ultirnately becanie tieneral As-
sembly resolution 2074 (XX).Operative paragraph 7 uf this remlulion aHed
iipon the Govcrnment of South Africa "to remove irnmediately rtll bases and
other miliiary installations Iocated in the Territory ofSouth West Afrjca and
to refrain ;rom utiIi~ingthe Terriiov iri any way whatsxvcr as a miIitary base
for intern;tl or externa1 purpoxs . . .+".
35. Notwithstanding tlie evidence of Gmcral MarshaIl thé petitioners agsin
alleged th: existence of miIitary bases and militariution in gcneral in South
West Afrira. Mr. Kuhangua of SWAPO sratcd that his oganitation had re-
cently drawn the attention,of the United Yations "to the malicious intentions
of the Eederal Republic of Gerrna~iy,which had atabIishcd a rocket station
in the Nainib dcscrr '". Mr. Kerina of NUDO alleged that "South Africa had
several military baws and camps in South Wcst Africa &", and Mr. Nujonia
(SWAPO) testified iha t the Committee "should fulIy undcrstand that measures
such as the constmction of military büscs pear the Zamhian frontier wcrc a
threat din'cted not oniy at the people of Souih \+'~5t Africa, but also at the
peopIe of Zambiit itself . . . '".
37. As had happencd in the pas!, rhc aliegations of petitioners wert un-
critically i-epeated by representatjves of wrtain States. Thus, Mc. '1-hiam of
Mali expresscd the v k w t h t thc Gen~rakAssembly "should dernand that
South Africa remove al1 its military hases in Souih West Africa forthwith and
refrain frnm using the Territory in any way for the concentration of weapnns
I.C.J. Plcuditzgs, S o u h tVe.~tAfrira, Vol. V, p. I I.

Vide para. 26, suprrr.
Vide para. 25, sirpro.
' . ., 17 Dcc. 19G5. in 6 . 4 ., OR., Twcntieth
G A rcstilution 2074 rXX1. Sess... Sun.
. No.
14 CA16014). p. h I .
' G A , OR,Twentieth .%ss., Fourih Cornm.. 1564th M e t i n g , 22 Kov. 1955, p. 272.
V b i d . , 1 565th Meering, 23 Nuv. 1965, p. 279.
Ibid., 1 567r h Meeting, 24 Nov. 1965, p. 295.
WHI-['TEPI' STATEWEN'I OP Wlll-il AFRICA 741
or armed Forces '";Mr. Dinitruk of the 13yelorussian SSR srated rhat the S~ourh
African Governrncni, witli the help of Wcst German specialists, "had cnn-
structed a rocket hase in ilie Namib Desert ?"; Mr. Malecefa of 'ranzania said
that "rhe establishment of rnilitary bases and the construction of arms factories
in Souih Wcst Africa ivcre vic'iIations of the Charter "', and Mr. G h h o of
Cihalia stated that l~isdclcgation "veheiiiently condemncd the presence of
military inçiallations in Scuth West Africa, which were a llrrear to the peace
and security of the area . . . +".
38. Not one of the rcpn:sentatives who reïerred tu thc cxiçtence of rnilitüry
bases or militariration in 5311thWest Africa made iiny nienrion of the eviknce
given by Cienerat M-arshaIl j. EventuaIIy the South African represen tative.
Mr. Iiattingh, in dealing ~ r ' i t hth2 charges or rnilitarization, referred to ir leitcr
dated f 5 Seprember 1965 h, in which the South African Perinanent Reprcscnta-
tivc to thc United Nations had dcnicd the existence of so-calkd military bases,
to a Ietter dated 6 July 196 5 from the FedercI Republic of Gerniaiiy in which
it had bwn pointed otit that the alleged rockct Iaunching silc at Tsumeb was
sctualIy an observatory fni ionosphcric rewarch hlonging to the Max Planck
ïnst itute. and t o the evidence given by Cieneral MarshaII
39. The reac~ion of certain represcntatives t o the speech of the Souih African
rcpresentative is il lurnina~ing. Miss I3rookes o f 1,iberia. speaking nn a point
of ordet. questioned thc propriety or ciling kxforc thc Conimittee testiinony
on which the Internationid Coiirt of Justice had to p a s judgment S. Mr.
Hattingh disagreed and said thai he was surprised 10 tind that the Liberian
repi-esentativehiid becorne a proragonist of the sub judire principle, which was
not in Iine with her carliei posiiion in the Fourth Coi-iirnittee, and saiù that in
any event fie saw no reaçon why the inhrmation cotrld not givvc g9. Miss
Hiookes replied that ii \vas for the TntemationaI Court of Justice, and not for
the Fourth Committce, to pronounce upon the testiniony brought More it by
South Africa 9, and Mr. Mliaye of Guinea staled that he agreed \vit h the repre-
sentaiive of Likria. MT.Thiam of Mali wcnt further in saying tkat ihe mernbers
of the Cornmittee felt no nred to listen to what Mr. Ilattingh had to say. WC
wntinued :
T h e Comiiiittee's tüsk was to defeiid the rrights of peoples, and the
South African reprexritative's restimuny was of no use to it in thar con-
nection 'O.''
Mrs. Mohammed of Nigeria urged that the Soui h Arrican represcntative's
speech shauld be d ~ l a r e dclur of order 'O, and Mr. A&+n of Somaliaexpressed
the view ihüt ii was irnproger IO ci tc tcst imany subrnitted io the IniernntionnI
Coiiri of Justiw: and said t k a t if the South African represeritative contintied to
Ihid., 1568th Mccting,23 Nov. 1965, p.302.

Ihfiid., 1569th Meeting, 26 NOV. 1065, p. 315.
- Ibid., 1570th Meeting, 26 Nuv. 1965. p. 327.
' Ibid.,p. 329. V i d ~also the starçrnentï made by Mr. Abdel-5Yahab (UtZR), at
thc 1571st Meeting of the Fourih Gimm., p. 333.
Vide para. 25, srzppuu.
U N dor. AC5993 (23 Sep. IY651,pp. 1-3.
Ch'duc. A!AC.IUY!142 (113 Scp. 1965).
' GA, OR,Twcnticth Scss,, Fourth Cooiin., 158Ist Mccting, Y Dec. 1965. p. 414.
* flii~l.Vde t h e attitudes :idoptcd by thc reprcscntativcs of Likria and South
Africa in e.g., t Iie Fourth C r i r n m i t i ~GA.
, OH,FiRccnrh Scss., IO5 1st Meeting, 15
.
S n v . t 960,p. I
Ihid. p. 415.
do so, the delegation of Somalia ivouId also withdraw '. At the next meeting
of the Foui'th Corninittee Mr. Rhabha of Pakistan said:
"Th: South African Representative had referred to a General MarshaII
in hi, sta~emnt.That person uoasnor known to the Comniittcc and the
C:ontrr.ittee had not heen given any inforniarion regarding his qiialifica-
tions ?'"
This atti!iide was in marked contras[ IO that of the A g n i for Ethiopia and
1,iberia to xhich reference was made above 3, and is diificuIt Io reconciIe w i l h
thc undcrt~ikingthai had btxn siilen to transmit the iiiformstion contained in
General Marshall's evidenoc to the Cnitcd Kations ,'.
(c) The Sorith Wcsl Africa cases
4.0. Probably the most iniportant part of ihe Surizfr West A ~ F ~ c cases
(z was
that in which the Applicants alleçed vioIations by South Africa of its fiinda-
mental trust ob1iga:aiion undcr thc Mandate, which was to "promnte to the
utmost the matcria1 and moral wclt-being and the social progras of the in-
habitants c f the Terrifors '-'.Certainly by Far the major portion of the plcadings
2nd ors1 pi-wocdings :son thc rnerjts wis dcvoted ro this charge.
Annex /i ' contains a suinmary of the nlIegaiions originally made by h e
Applicants and of the nianner in which 1 hcy cventualIy changeù rhe basis of
thcir wholc casc rcgiirding thc aforcsaid irlleged violatinns. I t was shown that
whitst the clrarge niade in the Mei~iorialswas onc of dt-likbera oppression of
the Native popuiaatio OS South West Africa, tlie factuaI exposition in Sotith
Africa's plcadings and othcr circurnvtances (including a proposa1 by South
Africa thar the Cour! conduct nit inspection in lmo in South West Africa)
s admit d i the factual averments in
eventually mrnpelled the A p p I i ~ ~ n tlo
thcsc pl~atiingsand to amcnù thcir subniissions so 3s ta delete al1 refcrcnccs
to aIlegatirins of oppressive condüct 6.
41. These developments were of special significancr:in siew of the fact that
in its Countcr-McmoriüI South Africü had deal t with some basic mpccts of i l s
paiicy of separate developnient. It was shown that the policy was not one of
dominatioil. biit its very antithesis, viz., one wIiich wught by an evolutionary
proccss to bring about the termination nf Ihe guardian's supiemacy and thc
emaiicipation of the wards; that tlie aini of t hc polic): was justice foi afl. on a
basis or pcitentia1 etluaIity and freedom; tliat irr principie the policy rtccorded
wit h the Iiasic concepts underlying the thinking of inlegrated, mufti-racial
States, in that its moral outlook and idealistic nbjccti\ts rcsled on iiiodern
wncepts ofhriman rights, dignitics and freedoms irrespective of race, cuIour
or creed, a.nd did nat run caunter to them; antl that [he policy waq nnt bascd
on any coiicept of superiority or inrtrioriiy, bui rncrcly on thç Faci that people
diffcred. particularly in iheir gruup associatioiis, loyaltiej, cultures, o u t look.
modes of lifc and standards of deveIaprnent '.
' GA. OR, Twçntieth Sess., r o u r t h Comm., tS8Ist Meeting. Y Dcc. 1965, p. 415.
Ibid., 15P?nd Meeting, 4 Deç. 1965, p. 418.
' Vide para. 25, sirpru.
' Art. 2 of thc Mandate.
Vi& para. 6 1, in&.
"nnex A, pp. 142-145. Via+ nlso D'hrnato, A. A., "Legal aiid Polirical Sirategies
af the South West Africa I.itigation", I.aw in Tmrirstiuir Q r ~ ~ r f c iC .f ?9671,
~ pp. 8-43.
Thc author is said l o have k e n "rtiained hy Etliiopia and Liberia ttr wrife portions
of thc Applimnts' brief". Ifbid., p. 8.)
1.C.J. ~~feadings,SoiriIl West AJricn, Vol. 11. pp. 473-474.
rhe population of South West Africü in a stale of perpetual sulijugition.
IIy meiins of police brutality. South Africa was trying to apply its policy
uf apartheid in the Territory and to perpetuate the maaer and xrvant
reIatioriship by denying the Africans any furm of justice in the iand of
their birth l."
Al1cga:alions of tlie existence of concentration camps, torture, tiiassacrcs and
geiiocide cciniinued tn be made. Mr. Dashtscrcn of Mongolia alleged I l u t
South Africa was forcing iht: indigenous population of the Territory "to Iive
in Iübvur c:oticeiitration camps "'; Mr. Golovko of the likrainiiin Soviet
SociaIist Rr:pubIic referred to South West Africa as "a t i u g police torlurc-
chamber '-';Mr. Aziniov of the Union of Soviet Socialist Rcpublics spoke of
tlic Africrtr. reserves or homelands as "concentration camps'' and "living
cemeteries3"; and Mr. SIievchenko of ihe Ukrainian Sovici SociaIisi Kepublic
said :
". . . the South African riicisrs are continuin!: to appIy the inliuman policy
of apartheid in the Territory and iniroducing racist priictices worthy of
thc Middle Ages. The policy o f the whire racists is aimed at wiping out
the indigenous inhabitants or turning thern into slavcs of thc white settlcrs
in perwtuity '."
45. Most of these, and other identical or siniilar staremenrs wcrc niade after
the oral prcxwdings in the Sniirii J.lle.s~AfrjCr~ casa had beeii compleied;
certainly al1 were inadc aftcr the Applicants had atiandoned aIl charges of op-
press~on.Howevcr, not a single referencc w ü s made to the true factual position
as it emerged from the South Ai'rican pleadings aiid srnplificd by oral testimony.
This coirld not have becn duc tu any rcspect for the suh jzidice riile since South
Africa's proiesiaiions that issues which ~vcreMore tIie Court should nor be
discussed \vent unheeded Tor Inany years, and the Gencral AssernbIy in hct
adoptcd. bcfore Judgnienr was given, rcsolution 2074 (XX) i i i which South
Africii.5 policics, and apartheid by name, wmercagain condenined because ihey
aIlegedly constitutcd "a crin-ie agaiiist humanity
46. Of si~cials~gnificanceis thc rcüction ~ostatenients made by the South
Africrin rcpiescntativc in ihe Third Cornmittcc in 1966. PItier Mrs. Dmitruk
of the ll krainian Soviet Socialist Repiiblic had referrcd to "the rnonstrous
canstquences of colonialism and racialisni in . . . Soitth West Africa" and had
aIIcged thai. "üpürthcid was depsiviiig the A f r i c m uf al1 human rights and al1
fundaniental freedoins by forcing [hem to I~vein riiiscrabIc conditions, by
herding thrrn into reservarions . . ., by furbiddirig ihem any fainily life . . .'",
the South Africiin rcprcscntatii'e strongfy objected "to the ready klief which
seeiiied to be given to the allcgat ions made against his country, accordiny to
which the policy of his tiovernment in Souih W-es.! Africa was one ofoppres-
sion in violation uf fiumiin rigtits and fundamcntal fi-eedon~s"-. Hc pointed
out that thc Applicants had originaIly hased their itccusitions un lhe erronmus
assumption ihat South Africa wüs oppressing the indignous population OF
' GA. OR. Tweniielh Sess.. Fourth Comm., l57011i Meeting. 26 Nriv. 1965, p. 328.
' Ibid. . 1569th Mccting, 26 Nov. 1965, p. 3 II -
' ibid., 1:85th Plcnary iMccting, 30 Nov. 1965, p. S.
' thid.. 1 S1Yrh Plcnary Mmting. 6 Dec. 1965, p. 17.
G A rescilutiun 2074 (XX),17 Dec. 1965, GA. Ci K. Twçntierh Scsi., Siip. %o. 14
(A!60I 4), uperative para. 4.p. 60.
" GA, UR,Twrnty-fifit Sess., Third Comm., 1382nd Meericg, 4 Oçr. 1966, p. 35.
&id., p. 2.
wnnTE?i s r ~ ~r M OP TSOUTH AFRICA
~ N 747
Deccmber 1960 '".It waf. slleged that South Africa had "extendcd its inhurnari
policies of racial discrimination 10 rhe Territory of South Wcst Africa '", and
it was rtxoiiiniendcd t ha! the Mandatc shouId bc revoked 2.
52. 'I'hc rcport of rhe !iub-Cunimittee on South Wcsr Africa, iis adoptcd by
iht Special Cornrnitiw, was considered by the Cieneral Asscrnbly in Plenüry
Session whcn resolut ion ::I45 (XXI) wiis adoptcd. The South African represen-
tative, Mr. de VilLiers, in addressing the Geiiersil Assembly, gavc a rcsumk of
what had happened in thc Soiltir Wcsr Afritu cases. 1 le pointed out that the
Applicants had original1J ntleged rhat '-apartheid" ivüs tr system whereby the
indigenous inkabitants of thc Tcrrirory were deliberately oppressed for thc
bencfit of the White rninwity, but thüt even at the oiitset, sonre of the more
oiitrageous allcgatioiis whiçh had regularly been niade in United Nalions
cornmittees and orgüns. sych as allcgütions of genocide, had nnot been raised by
tlie Applicants; timt the charges rvhich the AppIicanrs did makc, were refuted
in South Africa's wriiten pIcadings and oral evidence; that the testimony of
thc petitioners, as rclicd upon by C'nitcd Kations bodies and by the Applicants,
was shown to be whaIly unlrliable and that during the oral pruceedings, the
Applicants wcrc indmd !nvited to cal1 the petitioners as witnesses but that
thcy hiid failed to respond ro this invitation; and that the Applicants eventtially
aineiided their submissio;is so as to ahandon aII chnrges of oppression 7 T h
cwnter the allcgations ol'militarization, attention wns drawn to the evidence
of Gcneral Marshall and ta the finding or the three Sudges ivho dismisscd
the Applicants' allegatiarrs relating to inilitarization of South West Africa '.
At a later stage, thc South African Minister of Foreign Affaiis, Dr. MulIer,
in developiny an argument Ihac South African Govern~nentshad never feIf
i hat they had anything to hidc o r tci be ahamad d concerning rhc administra-
tion, policies or objective; in Soiith West Africa, statcd thai, givcn the nece.-
sary cfi-cctive CO-operatic.n+ South Afriça wouId give the most seriaus and
constructive consideration to providing information, on a vcrlunlary basis.
regarùing any thing that rriiyht improve knowizdge and undcrstanding reIalive
to the situaiion in South West Africa ".
53. 'I'he information provided by ihe Soutli Afriçan represenhti~es,feIi on
deaf ears. Allegations of oppressive and briital conduct continued to be made.
l'hus, conccming South Africa's rreatrnent of the indigenous population of
South West Africa, then: wcrc rcfcrcnces to "iiihuman and criminal poli-
,ies 691., the sharnefuI arid discredited sysrem of the expIrtitation of nlan by
41
man '"; '-the inhuman trmtment by the South Afrimn Government "> '"hc
irrational inhunian denial of thc Governineiit of South Africa of these sacred
righrs by a brutal policy if iron and bIuud 9"; "the üntold tyranny imposed
on the Africans, spoiIing the most fertile parts of thcir land, subjecting them
to compulsory chcap La3our '"'; "the mercila\$ coIoniaI exp1,lujtatioii and
racial ùiscrintinaiinn agajnst the people of Solit h West Africir" ; an adminis-
I l d . , p. 298.
)!;id.. pp. 298-299.
GA. OH,Twenty-first Sees.. 14 17th Pleiiarv Meeting, 26 Sep. 1966, pp. 4-8.
Vide parah. II and 40-4 2, sripru.
GA, OR,Twenty-first Scss., 1439111 Plenary Meeting, 12 Oct. 1966, pp. 21 -23.
Ihid.,114 7th Plcnary Meeting, 26 Scp. 1966, p. 15.
' Ihid., p. 16.
"hiri., 1419th Ptcnüry hleeting, 21 Sep. t966, p. iO.
Ibid., 143 1st Pleniiry Meeting, 5 ( k t . I966. p. Y.
Ibid.. p. ID.
iratiun invnlving "a peculiar mixiurc of the tnost reirograde features of
al1 systcms rif exploitaiion known to history: slavery and feudalism, ccono~nic
expldtariori and social and poIitical oppression I''; ''a state of constant polir-
icaI and econornic servitude'"; and -"cruel rcprcïsion marked by arbitrarp
meaçures, tcrroristii ,and n i a s kilIinps of tlie Af'rican populationl which hiive
rwtilted in .!eritablc genocidc j".
54. .4s in previous yeais, reliance \vas again plliced on thc cvidence of dis-
credited petitioners, and allegatians of mititarii.;ttion nT the 'territory con-
iinued i o kie made. Apürt frorn the liict that thc alIcgations of oppressive
cvnduçt, ereti of gei~ocide,wcre repetitions of allegations made in previous
years and ~vhich,iis has been shown ',can be rraced back to the untruthful
cvidcnce of 1 he petitioners, statcrncnts rvcre iiiadc in which rcpreset~tali~es
relied in 50 many woids on allegations of the petitioners. 'l'bus, in allcging
that South Africü had cstablishcul ~nilitaryb:ises in Soiith Wesr Africa, ihc
reprcsenlative of ttie IIkrainian Sovict Socialist Repu blic stütcd :
"Rc~irweiitativesof various political parties [the petitioners1 of South
West Afriça, spcaking before the Cornniittt~of Twenty-Four, provided
irrefut:,ble cvidcncc on thai score '."
Aner cet:ain pet itioners had giircn evidci~cchefore thc Wiirth Coni~iiittee
and hüd rc~eatedtIie alIegations they had made in previous ycars 6. Mr. Thiain
of Mali, or! 4 Octobcr 1966: said "thal pctitioncrs' statements gave a clcar
idea of the sif uatioii in South West Africa ?''. At the wmc Meeting \Ir. Nyirin-
kindi of Ritanda "assiircd ttic people of Soiiih West Africa of thc syrnpathy
and support OF his Govcrnnicnt" and stated thai '-he had no questions to ark,
since the situation was plain and the pctitioners had Jexribeù il well '".
55. Thes<:statcments were made afrer the Soiilh African represcntative, oii
26 Septernkr 1966, with reference ta thc .Tnurli West Africu cases h d said:
". . . oiily ihree meinbers of the Court in iridividual opinions, dcalt witft
the question of allegcd militarizalion. Onc of h m war; on the side of
the Cvvrt, aiid itie other two on the side of the dissenticnts . . . it came as
n o surprise that al1 thrcc of rhcm firrnly rejected the AppIicanis' daim
as iinfoiirided. One of the dissenting Jitdges9, . . . uscd parlicularly stroiig
Irrnguü:<c, saying (hot. 'the testiinony of oite of Kejpondcnt's witnesses
satisfied me that this charge OF ihe Applicants was completely without
foiindation' lU".
And:
"FoIlowing on our ireritmeni in rhe pleadings [in the Soirrii West Africa
' GA, OR,T~entp-firsiSess., 1427th Ptcnary Mecring, 3 Oct. 1966,ki. 9.

Ihid., 1425th Plenary Mccting, 3U Sep. 1356, p. 7.
Ihid.. 1418th Plcnary Mccting, 19 Oct. 1966, p. 2.
Vide paras. 16 er seq., srtprn.
GA. OK,'I'wcnty-first Scss.. 143 1st Plrnary Meeting, 5 Oct. 1965. p. 8. Yidc also
slatçment madi: by the rcprcsrniiiiivz of Yugcislavia, UN doc. A/t.tlX)!Reu. 1, in
GA, O R . Tiventy-5tst Sess., Anriexes (necndn iiern 2.3. p. 293.
Ifi(fcparas. 20-25, srrprrr.
GA', O R , Twenty-fint Scss., Fourrli Cornrn., 1603rd Mcçiing, 4 Oct. 19156,p. 39.
ibfd.,p.41.
O Judgc J4:ssup. Vide bis disscnting opinion, Soirih Wrsr Africrr, Second Phuse,
n r ,J . Reporta 1966, p. 3 30.
J i i ~ i ~ i i t ~I.C.
1q G.4, OR, Twçniy-iirst Ses., 1417th Plenary Meeting, 26 Scp. 1966. p. 10.
cases] of the suhjec! of petitioners, the Applicants' Agcrit Mr. Gross,
cxplicitly statcd in cpcn court that the 'Applicants Iiave not relied upon
the accuracy of statcments of such petilioners'. ive coutd hardly believe
our ears. we said, 'Rst pIertse cal[ thesc pctitioncrs'. WC said t h i in opcn
Court, and WC addeli thüt if ihat wcre doite ir7ewodd seriously consider
pitying their witness fees, so that we coiild have the privilege of cross-
exalninine thein. Thme was no responsc '."
56. Thc rcüson why thc truc facts ctincerning South West Afi-ica were
ignored, i s not dificd t to find. By this tinte the leaders or the carnpaign againsi
Soiirh Africa, and their allies, had lost any intcrcst which thcy formcrly rriighi
have had in the qucstion whcthcr South Africa Iiad piornoted the well-king
of the inhabitants of the Iérritory. 'I'hey rvoirld not have k n satisiied wirh
anything l e s [han the imrnediate ~ndepcndcnccof South West Africii as a
single political unit, subjcct to a short pcriod of United Nations adininistration
of ihe Territory. Any erlideiice to the effcct that Souih Africa had in t'iict
promoted [he said well-king, was consequently disregarded. AIthough ccrlain
repre.wntarivcs still juutificd. or purported to justifq', the revocation of the
Mandate on South Africa's failure to fulfiI its obligarions, other represen-
tütiivcs made i l clear that !his factor was of nt, iniportance or anIy of smondary
importance. Thus. Mr. Kapwcpwc of Zambia said:
"The Uniled Nations itself is not endowcd with thc righl Io obstruct
the wishcs of the in3igcnous pcoplc of South West Afriw. Neither the
Uniird Nations nor any other forun1 has any authoriry whatsoever t o
divcrt I ~ fiinrianierr~al
P t o tha t
issue, which is Jretdot)~und itidc~le~zdence,
of a legal drawn-out exercise over the techtlicaIity of a mandate granted
10one race over another race. . .
_ f f . . . . . . . . . . . _ _ _ _ _ _ . . . . . . . . . . . I . . . . . . * . . .
The indigenous pe3plc of South West Afriw had no .=y in the drafting
of the mandate thai is now used as a cover to perpeiiiate their cnslave-
ment. As suçk, the propke of Su141h kVcsr Africa arc tiof bouird by any
mandnre forrnulated from übovc or froin outside . . .
. . . the kugur O'; rVu~ioirsMrirzdrr:~for Soitrh WPSIAfrica is trot the
fundatiierital ~ S S I I Ekei P. The içsiie, ai i t s bcdrock, is t h t of the inalEnabIe
right of the indigenocrs people of South West Africa. to self-detemination,
frtsdorn and indeperidcnce '." (Italics addcd.)
And iMr. Achkar of Giiinca statcd:
"Souih West AIIica is a Kon-Self-Governin Tcrrirory under the
domination of Soiittt Afriçan racists . ,. Our reaction shouId bc cqually
as simpIe: as a NonSeIf-Gaverning Tcrritory, whether :WatrJaied or tiot,
South Wcsi Mrica csrnes under the provisions of the Declaration on the
Granting of Independence to CoIonial Chuntries and Pcoplcs. Thcre can
be no equivocation o n that point 3." (Italics added.)
The foIlowing are furt1,er exainpIes of representative sratements:
,Wr. 13unjur (Mongol ia) :
"ln accordance with its policy of unfailing sripport for rhe countries
Ihih, p. 8.
Ihid.,1425th Plcnary M'eeting, 30 Sep. 1966, pp. 2 and 4.
Ibid.,1414th Plcnary Mectin:. 23 Sep. 1966, p. 15.
750 NAMrnIA (SOUTH WEST AFRICA)
artd proples wluch have taken up the strugglt: for fhcir freetlom and indc-
pcndçncc, thc Mongolian People's Rcpublic is strongly in favour of allow-
ing the lieople of South West Africa to exercise their inatienable righl io
self-determination at once.. .'"
'*South \%+sr Africa, the people of South West Africa. inust becorne
indcpendcnt irnrnediately, in accordance wi:h the pi'inciples of interna-
tional 1a.w and the United Nniions Chartcr and in cunformity with the
resolurions adoptcd by the Gcneral Assernbly. We intelid to vote in tliat
sense. . . . Brrr Rnnm~~iLi'r
urlinn shoukd in iru wny be inferprer~das nzcar~irg
that jve cu~isi&r ntiy Cegai action n~linrsoeverto he required, on the part
of the United Nations or any other forum, before the people o f South
West Africa can have the right to Ise master in their own country 2."
(I!alics tidded.)
Mr. I.npez (I>hilippines):
"The Uniicd Nations cannot allow this situation tn continue. The
inalienable right of the peopIe of South West Africa io freedoiri and
indepeniknce is enshrineri in the Charter and in [he DücIaration on thc
Granting of Lndcpcndcncc io Colonial Countries and Peoples . . . Decol-
onization ha5 reached a point where we cannot allow any country-in
this case, South Afrim-to re\*erset his historical pracess 3."
Mr. Slici~el(U krainian Soviet Socialist I<epublic):
".. . no decision of a court, no intrigues, or machinations of the EOIO-
nialists can dcprivc thc pcoplc of Souih West Africa of rheir right tn inde-
pendeiice and self-determination. Freedom tliey nius1 have, and obiilin ii
they wiI1.. . My delegalion thercfore fiiIly supports the demands of the
Afro-Asiancountrics that thc Manùstc o f the Union of South Africa nver
South West Africa should Iie revoked . . . IVe advocate the granting of
independence ro the peopIe of this Territory without a n y M a y . Likc other
socinlist countries, the Ukrainian SSH takes its stand on the principle
of the sovereigiity and the equaI rights of iill countries and peoples 4,"
57. The ahove-quoted statemenis fiiIly jiistify the following çornmenis or
Rosalyn Higgins on thc stratcgy and motivation of soine of the African States:
". . . whiie on the one hand ihc Africans sought a judjcial detcrminarion
on the liroper implernentation or the Mandate. wjmi ~lrt?yrealiy wnnfed
bctwocn what ihcy thought prudcnt
S ,Tfizcinrjcrte crt al!. This d i ~ h o l o m y
W C ~ nu
to scck from thc Court-thc cffcctive ciirryirig out of the Mandate -and
what they at heart ultimately hoped for-independence for South West
Africa-became inevitabIe after the passing of General AssernbIy reso-
Iution 1514 in 1960,on the Granting of Independencc to Colonial Peoples.
h other ivords. the jmint had aIrcady k n reached hy 19hh whereby the
weight of African poIitial aciivity w,u directcd towards indepc:ndcnce,
a n d tm: townrds flic fidf ar~dcfcnive impicniez~ariunof the 144g11dnre.
Birr rile Courris Jfc&rnmr-eveir ifir /rad Rnne co~nple~e{y il?fucnrrr of
GA. UR,Twcnty-first Sess., 1429th Plenary Mccting, 4 Oct. 1966. p. 7.

Ibiri., 1439th Plenary Mccting. I2 Oct. 1966, p. 4.
Ibiri., I417Plrnai-y klorting,ZBScp. 1966, p. 2 i .
ibid., I43Isi Plenary h k t i n g , 5 Oct. 1966. p. 9.
W K I W ~ SSTATEME~T OF SOUTH AFRICA 75 1
E~lriopiar r d Liheri,~-wutiidIinve provided tia icgai grounds for u deniuiuf
for iric!epsrrOc~rcefor,~ h lerriiory
e '." (Itaiics added.)
58. The exposition ccintained in the preceùing paragraphs lads, i t is sub
mitted, to the fnIlowÏng canclusions:
(a) The adoptioa of GcneraI Asscmbiy rcsoIrition SI45 (XXI) is !O h
seen as the ciilminarion of a political campaign as Far as South Wcsl
Africa i s conccrnet:., in ihe course of which the question whether South
Afriw had proii~otc:dthe well-being of the indigcnous inhab~t~mts of the
Territory became of no or secondary importance; rhe only objective being
the attsinrncni of iridepl:ndencefor South Wst Alrica as a single political
unit, irrespective of al[ other çonsidcrat ions.
(bj Becaiise of ~ h i sobjective the majority in the GcncraI AsserribIy,
prior to thc adopiia~~ of ihc said resulution, ncit only failed to ascertain
object ively whetlier South Africa had violated its obligations, but in fact
did no1 direcr iheir niindq to this question.
(r) In su far as it \vas alIeged in the &bates preceding the adoption
of resoiution 2145 I XXI) rhat South Africa had failed to futfil such obli-
gations, such allegatians were based on the pre-conceivcd idea thai South
Africa's pdicies are opprcssiircof thc iridigcnuus inhabitants of the Terri-
tory, aiid on a failurc to have any regard to the ecidence 10 the contrary.
As will be shown in the sncceeding paragraphs, subsequmt cvcnts foriiry
thesc cond usians.
15. Suhseguent Evcnts
59. Uuring the tl~irdMccting of the Ad Hoc Cornmittee for South West
Africa2 on 25 January 1967 siiggestions were niade ihat morc information
should be obtained abovt South West Africa for rhe purposes of the work of
the C'otniiiitke ?.
In its further consider;irion of the question krween 10 February and 6 March
1967, the Ad Ho<: Clomraittcc had bEforc it a working papcr contaiiiing infor-
mation on the Territory, prepared by tlie Secretariat in accordance with a
dccision taken by the <:omrnittee at ils third meeting 4. I'he working papec
purported to fiirnish inl'orniation on South West Africa under ~ h following
e
hcadings: Land and Pcople; Gowrnmtnt; Public Finance; Economic Devei-
opment; Social and Edumtional Conditions.
'I'he working papsr did not discIosc al1 the sources froni which the infor-
iiiation waç culltd. Hu-wevei, parts of tIie workii~gpaper indeed contained
information which was :;ubslnnrialIy correcl alrhough out of datc and inconl-
plcte, and therefore mislcading. Bc that as it may. what is of particular signifi-
cance is that iti the delikrations of the Cuii~niitteevirtually no reference was
Higgins, R., "TIie In!crnational Court and South Wcst Afsica". doirrrinl of the
Iiircrt~rinriorinlCoi>iniissionof Jiti'isis, Vol. V111, No. 1 (Summcr 1967), p. 28.
Establishcd in tcrms - ~ ~fi p e r e i i r rparugraph 6 of Gençral Asscrnb1~resolutinn
2145 (XXI) "tcl rccomniciid praciiçal means hy which Sciulh West Afriçs should he
administerrtl. 5 0 as to cnable ihr pmple of ~ h Territriryc Io rxercise the right of self-
determination and tu uchi :ve independence . .,"
tlie statemeni bj the United States representative, United Nations Gcncral
,3 V i d ~
Asrembly, Surnrnary Record of the third Meeting of rhc Ad Huc Comniittcc fur
Sriuth West Xîrica, U N dric. AjAC. 1231SR.3, 9 Mar. 1967, p. 7.
' U N doc. PilG640, 7 Alir. 1967. para. 43.
These suggestions for a full and impariial considerarion of the hcts came
ta naught. Even in the b3dy hi ch had becn cstüblishcd tu recorninend prac-
tical means for the adri~inÏstriitionof the Territory, correct infomülion was
regarded as less important than the prcconccived polirical norinns of the
majority of the delegates. 'Ilte same picrure emergcs from t h reaction to
furtlier SteDS taken by lht: South African Govertinient.
61. By Ietter, dated 2; March 1967, the Acting Fernianent Reprcwntative
of South Africa transinitted to the S~reraiy-Generalof the United Nafions
a publication entitled So:rrlr kVcsi Africa Srrrvey lr967. This document set out,
i ~ r r p rd i a , gengraphical aiid iiistoriml featurcs of South West Africa and con-
tained a rcsumé or the 1e:;at prweedings in the Soitlk West AJicn cases and of
the evidence given during the oraI procc~ïlings.It rurtherniore contained a
bricf exposition of the bencficial intent alid eflcct of Suulh Africa's poIicies
as applicd in the Terriior,y, and sel out recent develapments in the spheres of
gow rninent and admini jtrat ion, cconomy, cducat ion, lieal th and housing,
showing increased progrcss and well-being of al! the inhabitants of South
West Africa. Tht Survey is aitachrd to this Chapter as Anncx A l .
61. During Augusi 1457 rhc Prcsidcnt of ~ h eUnited Nations Council for
South West Africa, estahlished by virtue of GencraI Asscmbly resolution 2248
(S-V) of 19 May 1967 ', addressed a Ietrer to the Minister of Foreign Affa'airs
of the Government of Sourh Africa in which atientiun was drawn to the afors
said wsolution as weI1 ac resolutioii 2145 (XXT) of 27 Octokr 1966, and in
which the Councii reque:;ted an indical ion of the nieasures which ihe Govern-
iiient of South Africa ptoposed to take in ordcr io faciLitate the transkr of
the administration of rhc- Territory 10 the Council -'.I n rcsponse to this lcttcr
a communication from t . 1 ~Foreign Minister of the RepubIjc of South Africa
was forwarded ta the S~cretary-tieneralof the Unitcd Nations4. This com-
munication sets out rhe reasons why Ihe Goveinment of South Africa con-
sidered the adoption of :;csolution 2145 (XXn to be invalid, and why, apart
from iis invalidity, the rrsolution rilso "tacked any sernblancc of cconomiç or
social worth beca~iseit çompleteIy ignorcs thc disastrous consequefices which
woiild inevitahly foIIow from the course which it sers. It attempts to force
upon South Arrica a wurr;e of action which, far Cram promoting rtce progress
and wcll-king of the inliabitmts of thc Tcrriiory, cannot but destroy mmany
of them, thrnwing the ri:mainder back into the cruel conditions or the pas1
and bringing untold rni:;eg upon al1 A copy of tks cornmuiiication in
attachcd to ihis Chaptcr as Anncx B.
62. ln rcsponsc to thc transnrission of the text of Srcurity (:r>unciI resolu-
tion 259 of 12 August 196g6, South Aîrica's ~Minister of Foreign Affairs
addresseci a Ietter, daied 26 Scptcnikr 1969, to the Secretary-Gcneral of the
United Naiions. 'This Ict!cr dealt witli the more substanrive IegaI urid factuai
aspects of the said resolurion. Reasons were given why boih Gcncral Assembly
Rcfercncc to thc Surviy was made in the 1967 report of the Speciak Ccitnmittee
on thc situarion with rcgirri to iIie Implemcntotion of the fkclaration on the Grant-
ing of Indcpcndcncc tu Ctilonial Countries and koplm. U N doc. Aj6700;Add. 2
( 3 1 Oçt. 1967). paru. 26. :'li1ot rfproduced.I
G A resuIution 2248 (SV). UN diw. A/L. 5 t 6;Rev. 1.
Vilic, U N doc. A/659:'. Anncs 1. in GA. OR, Twrnry-sccunü SBSS., A ~ C X C S
(agenda item 64 ( b j ) , p. 4.
' lbid..Annex II.
Ihid., Artnex i l . p. S.
fi U N doc. S!RFS/269 (1 969), I2 Aiig. 1969.
resolution 21 45 (XXI) iinJ Sccurily CounciI resolutiun 269 were cvnsidcred
to be invalid. and attention was drüwn to thc cxpressed and implied accusa-
tions and misconceplions contained in the substantive parts of the latrer resu-
luiion. Finalis, the view was cxprcsxd thiit w m p l i a n e with this resolution
ivould nut serve the inierests of the inhabitants of South West AFrica but
would on tht: contrüry Iead to disaslrons results. 4 mtmorandurn was attached
which, when read with the Soitrh West Africa Survbey1967,dcmonstrared the
significiint dcvcloprrtcntswhjch had taken place uiider Soutti Africa's adminis-
tration of tlie Territory in al1 spheres of life, and rvhich would cvmc to an
end if South ACrica were ta *ver its tics with South W a t Africa, resultin~
in chaos wtiich would no[ bç liriiited to South West Africa but could casily
spill over iiito other parts of Southern Africa. The siid lctter and rnemorandum
are attached to ihis C'hapter as Annex C .
63. Thc dcbatts in cirgans and comniittees of'the United Nations during
the Twenty-second and latcr Scssions show ihat littlc, if any, notice {vas taken
of ~ht:afores,iiddociiments su bmitied hy the Soutli African Government. There
is ccrtainly no cvidcnce of uny objective appraisal of the iàcts sel orrt therein.
'Thus, the rcprescntative of Zam bia in the Swurity CounciI summarily dis-
missed the commun~caiion,Annex C hercto, as "a volunie of distnrtions and
fallacics '".
64. The ieppürcntIy ùelibcrare rerusa1 to takt notice of these exposiiions of
the true faccual pnsition went hand in hand with repetitions of charges of
oppr~xivcconduct and of militarizatioii of South West Africa. which were
said by certain rcpresentatives to constifii[e a thre~itto rhe F a c e . Ln the PIenary
Meetings of the General Assembly during its '1-wenty-wcondSession references
wccc rnadc ;lo a "systcrii of terror 2", [ O an intensification of "critnina1 açts
and terrorisl rncasurcs agrtinst the population o l this Territory 3", to "tens of
~Iiousandsof African patriots" whn were "lan~uishingin prisons and con-
ccntration ciimps +", io "slavcry" which was "thc 101 of thr: Airicans $", io
the minority Whites who "thrived oii the sweat and blood of tlre indigcnous
Africans and to Soiith Afrim's actions, methods and Iaws ivhicfi were said
to bc "disrul~tivc", "criminal" and "opprcssivc '".
As regards militarizatioii, it was alleged that a military base had k e n estab-
Iished in rhc Caprivi Sirip 8 ; lhat a l Ihe so-callcù Tsurneb base in Sou?h West
Africa, preparations were k i n g made for twring long-range rockctsg; that
Soutli Africa had transfornied South West Afriw into a "tremendcius rnilitary
police camp ' O " ; rhai rhe Territory had k e n transi'ormed"intoa slrategic hase
againsi thc nations1 libcration rnovcmcnts of oihcr tcrritorics and p p I e s in
Afriw "", and ihat South Africa "had established itiilitary bases aitd instal-
lations on al1 of the Territory of Soulh West Africd '%".
U X d{iç, S/PV. 1527 (28 Jan. I970), p. 3 1.

"UN rlw. AiPV. 1625 (1 1 DK.1987). p. 47.
"UN dm. AIPV. 1628 t 13 nec. 1967).,, .on.
. 1 3-1 5 .
fbili.. p. 32.
UN doc. AIPY. 1632 (14 Dec. 1957'1..,.v. 36.
fhid., p. 37.
Ihid., pp. 38-40.
* U S dnc. A/PV. 1628 (1 3 B c . 19671, p. 7.
Y ilrid. p. I I .
Ibid,, p. 32.
'L UNdoc. AiPV. 16?2(14 Dcc. 1967), p. 16.
l2 Ibid., p. 1 7.
Duririg the 1968 and i969 sessions of rhe GeneraI Assernbly sirnilar aIIega-
'.
rions, which would be iedious to rcpciit, wcrc made Mr. Sirnbmaniyc of
Ijurundi went perhaps a IittIc bit further than anyhody hnd ever donc befort:
by alleging that cliildren were "snalched away from rheir parents
G5. The same mis-staiements of South Africa's policics and disrcgard of
the true facts, which wcic rcad~lyavailable, appear from the Security CounciI
dcbütn preceding the adoption of resolutions 264 (1969). 269 (1969) and 276
(1 970). Mr. '\lwaanga of Zam bia sllcgcd thai lhc appIicaiion of iipürtheid had
"enahled the thrcc miIIion bloodthii-sty wliites of South Africa to bar by
every possible ineans including brutal force the economic, social and poli ticaI
advancement of the people of Nüniibia 3"; Mr. Boyc of ScncgaI said that
South Africa wishcd "il' not [ci exteriniliate, at least to elirninate a major
port ion ol an en1 ire race. after having debaîed i t and reduced it to the level uf
beasts of burdcn 4"; and ,Mi. Malik of thc icnion of Sovict Socialist Repubjics
referred to "Africnn rcscrvdtions resernbling ghcttos '."
Charges of itiilitaiizati<inof the Tcrrirory were coupied with wild allegatinns,
not supportcd by any faci ual siaienlents whatsucvcr, that South Afrim inlcnded
to iiw its forces in Soutli Africa and South West Africa against independent
BIack African States. Mr. A7.zout of AIgeria referred 10 rhe "continuation of
the rnilitary occupütion ( i f Namihia by South Africa" which \vas siiid i o be in
itself "a serious violrttioii of the frindaniental priiiciples of the Charter" luid
"a typical cüsc of dircct anned aggrcssion against 3 territory and against a
people which must enjoy the natiiral and nal lien ah le right io freedoni and self-
deierrninülion "";Mr. T u r h a y Ayala of Colonibia slated that the Security
CounciI "shouId not simpIy alIow the a m c d forces of Souih Africa illegalIy to
continue occupying the Ierritor~of Namihia and Mr. Mwaanga of Zarnbia
said th t South Africa w t i ~ i l duse its wcapons "against black Narriibinnç, black
Sauth Africans and al1 th: independent Africün countrics whiçh are deterirrined
to make the whole of A f ~ i c atrulq' independeni '".
It wilI ihiis be seen thar. in rhc Gcncrol Assernbly, no atteiiipt was inade 10
analyse documents contt.ininy full expositions of t hc t riie factuaI position in
Souf h West Afsica, or to make an objective appraisal of South Africa's policies.
Ytde. c.g.. UN doc. A!PV. 1730 (29 Nov. 1968). pp. 17 and 22; 'Twcnty-fourih
Scss., Fciurt h Comrn., i'rorisioi~al Sitttrtiiarv Record U N duc. A!C. 4jSR. 1825 1 17
OLT. lii69), p. 20; ibid.,IIP.1 d<iç. AIC. 4ISK. IR26 { 17 Oct. I969), p. 14: ihirf., LN
doç. A!C. 4;'SR. 1829 (20Oct. 1969), p. 4; ihrk, IJK ddc. A/C. 4;SR. t830(2U Ott.
19691, p. 3: [M.,L:;S doc. AiC. &SR. 1831 (22 Oci. 1969).pp. 4, I I :ihid.. U N dttc.
A/C. 4,SR. 1833 (22 Oct. 1969), p. 21.
' Ch'doc. A/P\'. 1819 (1 nec. 1969),pp. 24-25.
"UN duc. SIPV. 1464 (;il Mÿr. 1969). pp. 28-30.
' Ibid. p. 37 and U N do.:. S!PV. 1494 (6 Aug. 1969), p. 17.
' U N duc. SIPY. 1528 (:19 Jan. I97V), pp. 48-50. Yide alsti IJN ducs. S!PV. 1 4 M
(20 M a r . 1969), pp. 73-26, 28-30, 34-36. 42; S/PV. 1465 120 Mar. 19691,pp. 6 3 4 5 ;
S/PV. 1492 (30July 1969). pp. 15 and 18; S!PV. 1491 (6 Aug. 1969), p. 16; S/PV.
1495 18 Aue. 1969). p. 3: SjPV. 1517 (28 Jan. 19701, p. 37:S:PV. 1550 (29 Jrily 1970),
pp. 8-10,
U N doc, S!PV. 14W (20Mar. [%Y), p. I 2 .
' U N dm. S!PV. 1492 (30 July 1969). p. 12.
U N Joc. SjPV. 1527 (28 Jan. 1970), p. 38. Vidie also statement madc by Mr.
Zakharov ( U S S R ) , C K dur. S/PV. 1494 (6 Aug. 1969), pp. 18-20.
66. in preiriuus chaprexs Full reasom have k c n given for tlie South Africai~
Government's contentions that h t h General Assembly resolution 2145 (XXI)
and Security Council resolutioii 276 (1470)are void o f a n y Icgiil cficct. In the
preceding paragraphs it was Furthcrmore shown t hat there was no factual basis
for l'ne adorrion of the former rescilutinn. The purpose of this seciion is Io
dcmunslrate rvhy, even if it be assunied that eithcr or both of the said reso-
lutions could be rewrded as valid recommcndatioris, the South African Govern-
nient niust decline to give effect theretn I .
Mention lias aIready been niade of the letter, dated 26 Scpternbcr 1969,
addresscd to the Çecretary-GeneraI of the Unitcd Nations by the Minister of
Foreign Affairs of South Africa ?. ln ihis letter reasons were given why, in the
view of Ihe South African Governinent, it ivoutd not l x in Ihc intcrcsts of ihc
inhabitantsof theTcrritory toscvcr their tics with South Africa. A mernoranduni
attached to ihc Icttcr, r a d with the publication Sourh W ~ s rAfricu .Y~drvey
1967, showed the significant progress which had taken pIscc in thc Tcrri tvry
under South Africa's administration in ail spheres of Me. and which would
corne to an abrupt end if the said ties were stvercd.
Tn thc sücc(:eding puragraphs dctails will bc givcn of thc Iatcst progrcss in
South W a t Africa in some of the more important spheres of life, affecfing ail
the inhabitaiits. This ivjll show, it is siibrnitted, not only thai the masons set
out in the Icttcr sïill hold good, but indccd that i t is at present more necessary
chan evrr before that South Africa continue to atltnitiister the Terriiory.
I t will b<: noted rhat in rnany instances no soiires are citcd for statements
made in thc ncxt paragraphs. In siich instances the information was derivcd
li-oni governitient depariiiients. and dl,if ihe Couri so desires, be verified by
vivo vocc evidenw or affidavit.
I I . Pop~rfarioriund H i x ! o r ~
67. Thc facts about the pcopfcs of South West AFrica and their histories arc
fulty documented? As it is of vital iniporfance to understand and evaluate
properly the nature and ptirpose of Soulh Africa's administrarion in Sotith
Wcst Africa, thc salicnt fcat urcs arc rccapit ulatcd for the sake of convcnicnce.
68. It is gçnei'aily accepted thnt tlie ii~habitantshave never forined a homo-
gwieoiis entitg. but rhtniielves wished to retain IIieir identitic5. There is in the
Tcrritory no singtc cntity which cün bc dcscribcd as "the pcopfe of thc Tcrri-
[or>-".'The populatioi~is in fact made u p of a nun~berof disparate peopIes,
each conscicltis of its own identily. Difkrenl pai-1sof the Territory of South
West Africa have to a Iargc cxtcnt for generrttions been occupicd by thcsc
peoples tlienisetves.
69. By Far the niajorily OF the popuIation groups or South Wesr Africa live
in the honieIands they chose For thcnisclves long before there was a Unitcd
The facts sct out will at the same tinie serve as furthcr rcfutation of the Fdse
notion on whiçh South Afriça's adminisiration of the Territory kas bctn crintirmned
tiv- riiaiorities in the United Narirrns.
*
l'ide paril. 62, sttpm.

-j Yi& I.C.J. Pfttuditip, Soiirlr CVcsr Ajrica, Vol. II (Counter-Mernorial), pp. 31 I -
380,and Soiitli W ~ e ,4fii.cn

f Sitrsfy 1967. pp. 16-32.
Narioiis, and long &for#: thc South Arrican Government's adininistrat ion of
the Territorq- kgan. Anyone acquaintcd wirh the history of Sou111Wesl Africa
knows that a century or two a20 the Ovaniho tribcs ~hci~isclves chose tlie ürca
they now inhabit for iis rainfalI and the reiatively good graïing i t afforded fnr
their cattle and for its relative suitübility for crops. This is truc ulso of the
pcvplcs of the Ku~urtgo:ind the Ciiprivi, and to s kcsscr extent of Kaokofnird.
The peopIes of thcse four rcgiuns account for 58.3 per cent. of the total of all
the population grotips of Soiith West Africa. These rcgicinç have always
rewrribled foui independvnt countries, each with its vwn political, ccononlic and
social oryanization. Their pcoplcs wcre Iargely unaffectd by contact with the
Cierrnan administration. D r with one iinuther or with the populalion grvups to
thc south. Only the southcrn "Police Zone "' was undcr direct Cierrnan control.
'The northem sDcrvr out:;ide this zonc \vas not subject to Gcrman control ai,
al1 (except to a liini ted exierlt Kaoko!and). Thc Eastern Caprivi Zipfcl occupicd
an intcrrncdiate position, Gerrnan control k i n g exercised i i i an indirect ir7ayby
iiiaking use largcly of th€:traditional tribal authorities,
Keither fhe Ovanibo, nor the Kavango: nor the East Caprivi pcoplcs had
ever accupicd or attcmrited to occupy or laid clairn l o [hose parts of the
Territory where other p<ipt~latjonçrnups now Iivc. The territory of thc Easl
Caprivi people, by n mcrc üccidcnt of history, had becn artificially made an
appendage of South West Africa of which their area wzu: nut g~~grapliically a
naiural part.
70. In the "Police Zaiic" thcri. werr various population groups which kad
heen in contact with e a ~ hothcr for at leasi a century wheti South Africa's
ad~ninistritionof South West Africa hegan. This çuntact bad not Icd Io the
creation of a çominon s t ~ i e t y On
. rhc çontrary, tribal and group differences,
and conflicting clitinis to Iand, llad Icd to conrinua1 bloodshcd. rcsulring i i i the
subjrigarttion, or even virrllal extermination, of thc wcakcr by the srrongcr.
71. AI1 ihese groups 3Iso ditfcred maierialiy in ethnic origin, languagcs,
custams, culturcs and le~elsof developnlcnt. For instance, ihc Birs/ittieir were a
nornadic people living eiilirrly from hunting and gathei-ing of wild plancs of
the veld. They kept n o r:üttlc and planted no crops. They lived in a statc of
continua1 cnrnity wiih other, inore powerfiil, tr~heswho deprived them of the
k s t hunting grounds, and ivhnse cattle thcy raided. The Brishmcn coristirute
aboiit 7.8 percent. of th: iutal popuIatian of Soiith West Africa.
72. Thc il'ntr~nor Iiarrnrirars are clasçiiied wi th the M-called Khoisan groiip
of peoples aiid thcy are a m o n p t the earficst inhubiianrs of South West Afiica.
i t is thought that rhey cwe ( k i r urigiii to a mixture of Hushmcn witIi early
invading pcoplcs uf Haaitic stock From whoni rhey aIso acquired certain
distinctive linguistic ;ind cultural fritures. Thcy wtre nomadic pastoralists
who did not practise ab:riculiure, bur depended on theii herds-ca!lIe. fat-
tailcd shccp and goüts-ind, to ri ccrtain exicnt, nlso on hunting. The Nama
conskitute about 4.4 per trnt. of the rota1 poptilation.
73. The Dcrnzr~r{~ (also knwvn as Bergdania) are a mystery ta studcr~(sof
cthnoIogy. In appeüriinci: thcy arc a shorl-statiired, nrgroid people, differing
entirely from the Nüma ctn the one hand and frvm the Bantu rribes inhabitinp
soulhern Arric;i on thc uthcr. The earliest records show the Bcrgdania L L ~
practising cithcr a primitive hunting and collecting econotriy, or, more fre-
' So called because un<:çr Gernian adniinistration thc policc and orhcr officiais
conlrolled the srea. Gernan outhcrily was ncvcr cffcctively cxtended h o n d the
"Policc Zonc".
758 (sou-1-Hw
NAMIB~A ~ s AFAICA)
i
quentiy, as cnslavcd by thc Narna whose langiragc thcy had adopted, resiilting
in the com~letedisappertrance ol'their own. The Damara are about 8.5 wr
cent. of the iota1 population.
74. The flerero are a t3sntu people, though distinct from the othcr Bantu
tribes of northern and wstern South West Africa. Thcy were exclusiveIy
pastoral nomads, and for a consideriibIe pcriod had iived iii the Kaokoveld, an
inaccessible region in the north-west. 'Towards the end of thc 18th century the
grciitcr port of the grvup continucd its migration suuihw~ard,Ieaving hehind in
the Kaokovt:ld some Hercros and rehted tribes (Himba and Tjimba) which in
time came to form a distinct population group.
Thc social orgrinizatiun of the Herero is unusual in rhat ir is büsed on a
system of double desmnt, an individua1 belunging to two social entities,
.namely the nrtizo of his father and the e~iidaof his niother. This systern of
bilaretal desçrnt is unknown arnongst any u l ihe othcr population groups of
South West Africa. The Herero take an exclusive view of their natiorial or
erhnic group, membership k i n g derived norm;illy frum birth. The Chief's
Council of thc Hcrcro rcprwnts only thc Hcrcro nation, constituting 5.8 per
cent. of the total of the population grciups of South West Africa.
After the sotith,ward migration of the Herero tluring the first dwadcs of the
19th century, war hetween them and the Nama becarne inevitable, since both
groups coveted tlie sanie grazing, and in tlie early clashes the Hcrcro wcrc on thc
wholr victorio~is; biit the Nama rvcrc soon sti-engtliened by the Hottentot
groups (the Cfrlams) which had by now returned frum the Cape Province
whence lhey hall wrIicr migratEJ and whcrc thcy had learnt the use of fire-
arnls and acquired horses. l'heir superioi ams cnabled itiem ta defeat the
Ijerero in a numher of bloody htrles, and thereafrer, for some dt~adcs,the
Hereru Iived in total subjcçiion lu thcm. By the 18605, howcvcr, Hcrcro in the
servis of thc Nama had theniseIves learnt to use fi fie-arms; and. after a successful
retiellion. there followed some yearars of intermittent \varParc in which the
Hcrcro wcrc gcncrülIy successful. The introduction of German rule in South
West Africa in 1884 did not of itself end hostilities. T t was on1 y after the general
uprisings during the years 1903-1407 t h t p e x e catne to the central and soiithern
parts of the Tcrritory. Thc ycars of warfarc had a catastrophic effect on the
Narna, Hcrcro aiid Damara. The loss of l ife \ a s imr~iense,the peoples Lvere
scat t e r d Ieaving many areas ernpty.
75. Afrer the incepiion of ihc Mundaie ii wfis the South Africiin Gowrnnient's
iask Io rehabiIitate these peoples by siifcguardingand extending their homelands
su that they could consoli&te their social and poIitical strucriires. The W h i i ~
population. then aboui 20,000 strong, had just begun to dcvclop a modern
economy. T&y thcy constitute about II pcr =nt. of the total ppoulation.
76. There was another group whiclt hzs not yet heen rncntioned:the Rekofmlk
&sl~r.s, Of iriixed Nama-Europciin dcswnt, rhey left the nothcrn Capc in
Souih Africi during the latter half of the 19th ccntiiry and rnoved northwards
into South -West Afriw. Tn 1870 they settled at tiehoboth, where they have
l ived cver sinw. Thcy constitutc about 2.1 pcr ccnl. of thc totiit population.
Their languüge is predominantly Afrikaaits and tlwir foriri of govrrnment
consists of a Council, applying their tradiiional laws.
77. TIie tiiernkrs of thc CoIourcd group whu for ~ h niost
c pari art: relatively
recenl immigrants from the Republic of South Africa, constitiite about 3.8 per
ccnt. of the :nial population.
78. Finally therc arc ahout 17,000 Tsu~mtnand others. The Tswana are
related to the citizeits of Rotswana. This group constitute 2.3 per cent.uf the
total.
WRIIIEN STATEMENT OF SOLTII AFRlCA 759
79. II is thus fallacious io spcak of thc "pcuplc" of Souih West Afriw in tlie
singular as if thcy wcrc a ;inale cohesive entity.
80. A populalion ccnsiis was conducted in South West Africa on 6 May

'.
1970 'I'he prelirninary r~su1ts.compared wirh the results nf thc 1960 mnsus,
are 3hohi.n in the followinr; tsblc:
'70
Pti.crnrirge
of rotal of ait
gr0 itps
Ovanibo
Whitcs
Damard
Narna
Kavango
Hererci
Coloureds
East
C'aprivians
Bushmen
, Kaokolantlers'
! Tswnna and
ot her
Bastcrs
Total
81. The percentage incrcascs shown in thc table above in respect of the
Ovümbo, Kavango, Coloureds, East Caprivians, Bushmen, Kaokolmclers,
'I'swü~iaand other for the perjod of nearly ten years between the dates of thc
tu.# censuses (Sep~enlber :960, and May 1970), cannot bc attriblited to natural
grorvth r a t a onIy (cxccss of birt hs over deaths).
The 1970 ceiisus niust lie considcred to be the niosr cornplete and accuratc
census o f the popuIation g o u p s that hüs yct bccn conducted, particuiarly in
ihc nort hern homclands u~lierethe largest increases are rcfiected.
j Cninciding, as far as tliz yçar is concerned, ~ 4 t h

popuiation celisuses in mtist
criuniries rif the world, as pari of the world census of population which was re-
c<irtimended hy the United Nations.
1970: Populaiion grours as enuincratcd at ccnsus.
1960: Population groulis bascd partly on ccnsus rcsutls end partly on estimates.
'Icnsus enurneration w ~ madc
s according ru home Icinguage in 1960. Damara
end Narna wcrc groupcd together under home lunguage Nama. As has bccn shrixn
i n paru. 73. supro. thc Uarnara had adopted the Narnn lnnguage to thc coniplete
disappenreünçe or iheir ovrn. Figures for Dainara and Kama prcviously sliuwn
scparatety for 1960, represent esii~nnredapportionniant of censiis tutu1 between the
two groups. Tlic figures for 1970 rcprcïcnt the firsi separate enurneration of Damara
and Nama.
' Estimare.
Thç first population census in the iiurthern horneiands was conducicd in 1960.
A11 earlier popuIation figures wcre largcly based on estirnates. Tntensivc plan-
ning and organizaiion for the 1970 census, as ivclI as the actuaI eniiitterntion.
wcrc substiiniialIy aided by tlie progress aiid advancemcn t which hwvc takcn
place in the northern hornclands since 1960, notably extensions in the road
network, iinproved comn~unicatirinsand the sprcad of education.
Thcsc factors resiilted in large increases for 1970 compiircd with 1360 in ihe
groups in the northcrn arcas, for example: Oviinibo 43.7 pcr cent.: Kavango
79.4 per cent.; East Caprivians 57.8 pcr ccnt,; Kaokolanders 94.9 per cent.
T h e s incrmses are Iarger than couid be accouiited for by naiural increaçc: and
migration, alrhuugh ghrhese Iwo factors musi h v e played a rolc.
It is, hawever, reasonahle to afsume that rhe ratura1 rate of population
growth hau k e n higher during the pasi decade than Cvcr kforc. Everywhere
hirth rates have remained high, u~hilstdcath rares have declined rrs a result of
public health measures and ktter standards nf living.
82. Evcn whcn duc çvnsidcraiion is made for the factors mcntiunçd abuve,
the g o w t h rates reflected in the table above cornparc favourahly with groivth
rares elwwhere in Africa, as will appear from the following table:
Libya.. .................... 3.7

Sornatia ..................... 3.3
Ruanda. . . . . . . . . . . . . . . . . . .
.. 3,l
Zarnhia . . . . . . . . . . . . . . . . . . .
.. ?.I
Rolswana . . . . . . . . . . . . . . . . . . . . 30
Buriindi . . . . . . . . . . . . . . . . . . . . 3.0
Llnhomcy . . . . . . . . . . . . . . . . . . . . 2.9
Fqiiütorial Giiinea . . . . . . . . . . . . . . . . 2.9
Kenya . . . . . . . . . . . . . . . . . . . . . 2.9
hiorocco ..................... 2.9
Sudan . . . . . . . . . . . . . . . . . . . . . 2.9
P.Içeria. . . . . . . . . . . . . . . . . . . . 2.9
L csotho . . . . . . . . . . . . . . . . . . . . . 2.9
Swii7iland .................... 2.8
C;uinc:i . .................... 2.7
hlalawi . .................... 2.7
Niger . . . . . . . . . . . . . . . . . . . . . . 2.7
biigeria . . . . . . . . . . . . . . . . . . . . . 2.5
Togo. ..................... 2.5
t ganda . . . . . . . . . . . . . . . . . . . . . 2.5
United Arab Hepiiblic . . . . . . . . . . . . . . 2.5
t ;niiçd Repubtic of Tamania. . . . . . . . . . . . 2.5
Mauritius.. . . . . . . . . . . . . . . . . . . 2.4
I m r y Coast . . . . . . . . . . . . . . . . . . . 2.3
<:ongo (Dem. Republic of) . . . . . . . . . . . . 2.2
I'unisia . . . . . . . . . . . . . . . . . . . . . 3.2
-
1 Yi& Liniid Nuricins. Deniographic Yearbricik 1968, pp. 85-89, According to a
~ c n e r aIiotr:
l in iiiis source, ille figures are esiirriates of quesii<inable relia biIity. cxcept
in the caser~fMauritius.
462 r n h i ~ n r(SOUTII
~ WEST AFRICP)
It was furthcrmore shown t k t the formal cleliberalions and consultations

on the constirutional issties, which lasied 19 months, culminated in procIarna-
[ions issued by the Statc h s i d c n t of the KepuhIic of South Africa in Ociokr
1968 which established a tegisIative Couiicil and Executive Counçil fur Ovain-
boland, Administrative Deparlments, and rules of proccdure and financial
rcguliitions for ihc Lcgislütivc: Council. In accordance with the wishes of the
delegations i~presentingthe seven Ovanibo ccimrnunities, which hha nniet at
Ondangua on 30 Septernkr 1968, it was providcd that t lic.LegisIarive Council
would function un a fcdcrül basis, cach af the xeven Ovainbo conirnüniti~r:to
be i~preseiitedby six representatives.
The tirsi. session of the first OvarnboIand Lcgislarive Council was forriially
and wrernoniously opened hy the responsibie South African Cabinet Ministcr
on Il Ociober I968.
The Legislaiive Counçil elects a Chief Councillor, who is the head of the
Exexritive Ciavernment, from among the Councillors no~ninateùby each com-
munity. iriitiitlly the followiny Govcrnmcnt Dcpartments wei'e established:
Authority Affairs and Finance; Coinniunity Anairs ; Wurks; Eduçat ion and
Culture: Economic Affairs; Jiistice ;üid Agriculture.
The Chicf CuunciIlur: in consul tiition with the bxecut ive Council, assigns
the control of the vürious departments to the ineriibers of the Executive Council.
An officer, styIed the Chief Director, is the Aùrniniçtrati\*cHead of a depai-t-
ment of P.uthority Affiiirs and Financc and CO-ordinating oficer of al1 the
dcpartrnents administered by the Executive Council ; and un uiiiccr, styIcd a
Director, i s the Adm~nistrativeHead of one or more of the rcmaining depart-
meiits. Ail thc pvsts in thc OvamboIand Public Service wilI as soon as possible
bc filled by Ovambos, but the South African Governiiient will assis1 by pro-
viding offt~:ialswhere fraineci OvarnÈo oiiiçials are not yer avaitable.
The S~x>n>nd Scssion of the Ovarnboland Legislaiive Council waq heId earty
in 1969. It:; first eiiactment was approved by the South Africdn Statc Prcsidcnt
on 13 Jiint: 1959.
In a radio mcssagc to thc Ovaniho pcapIc on 29 Septernher 1970, the Chief
CouncilIor, Chief Ushona Shiimi, again einpliasi7ed his nation's righi to seIr-
determination and to plan its own destiny and future. Hc said i t sccrncd odd
tu Ilie Ovarnbos that thc Sçcurity Council iii New York had asked the WorId
Coun for 2.n advisory opinion on South Africa's psesence in South Wcsl Africa.
"It is nu r right as a fuIly pledged nation to make our own choice . . ." he said.
"Tlie Ovcisabo 'lation has choscn, and nothing has happenecl ta make i r change
its mind."
85. PreIiminary consultations as to their fiiture constitutbiiat development
werr: hcId with the reyirescntativc,s of the Kavango conimunities as t'rom The
latter part of 1468 onwards.
Followirig upon the preliminary nietings, the rcpresentatives of the fivc
communitiaî indicated their desire for stat urary constiltation as provideci for
in the enakding legislaiion of 1968 (Act No. 54 tif 1968). h b l i c iiiccting of thc
leaders and rhc adult n~aIemembers of cach cornniuiiity were accordingly
çonvcncd 5y the South African Government's adminisrrative representative
in the Kavango I'or rlie purpase of consuiting each cornniunity xparatcly in
regard io--
(a) the rcl:ognition of thc cornrnuniiy govcrnment and the delerniinatinn of
its poivers, functions and duties;
(6) the es1ablishment or a central Legislative Coiinçil as wclI as an Exccurive
C;ount:il for Kavcingu as a wlioie and ihe manncr in which such Councils
shoulcl he consti tuted.
\ï'MïT 3 4 STATEMEST OF SOUTH Af RICA 763
As in the case of the Ovambo pcoplcs, suituble notices of the date, venue and
purposr: of each meeting \-me extensivdy giwn throughoiit the area of each
coniniuiiity. Thc nlcetings xere htid as ToIlows-
Gciriku . . . . . . . . . . . . . . . . 15 Jtine 1970
Mbunza. . . . . . . . . . . . . . . . 16Junc 1970
Mbukushii . . . . . . . . . . . . . . . 17 June 1970
Sanibyu . . . . . . . . . . . . . . . . 18 hine 1970
KwangaIi . . . . . . . . . . . . . . . 19 June 197I)
'I'he moetings w r e aitencled by the leaders as well as hy a substanlial nunibcr
of male adults of cach cornrnunity. At each meeting tliose prescnt wcrc invitcd
to cxprcss their vievs on the matters schcduled for discussinn, resulling in
spokesrnen of the particuliir cornrnunity expressing their grnup's support for
the envisaged new constituiionaI ürrüngcrncnts.
in rcgirrd lu the LcgisIa:ive Council and Exccutive Council i r was decided
that the details could best lie worked oui at a geneml assernbly of dcIcgatcv uf
eüch w~ninunity.
'1 hc dc1cga:aiionsinet at Kundu iir the Küvango on 22 July 1970. ilraft procla-
mat ions reIating to the estalrlishrnent and consrirution of the Legislativc Council
and the constitution of an Exccutivc CounciI wcrc discussed in detail with the
delegaiions and irpproved by them. So were other mürters like rhe Iliules of
Procedure for rhc Legislaiide Council. Effect was given to thesç arrangenierits
in proctaniations issued hy the Statc Prcsidcnt of the Republic of South Africa
in JuIy and August 1370. Tliese estahlished a Legislativc Council and an Execu-
iive Council, administrative departments, a s well as tules of procedure and
IianciaI regulations for rhc Lcgislaiivc: Council. The Ixgislati~e Counci!
would funciion on a federzl basis, each of the Rve tribes bcing represented by
six represcntativt%.Thus IF-.e fiill Council consists af 30 meni bers. There iiiust
be a session of the LegisIativc Council ÜI least once in every year, and the Chair-
man and Dçpuly Ciiairiiiar: are to lx elected by the Council. For the rest, the
arrangements correspond io those agreed upon for Ovamboland.
The Firsi Session of the l<avnngo Lcgislativc Counçil waç opencd on 22 Oc-
tobcr 1970. On the previous day vaiious symtiols of authority, including ii
rnace, the syrnboi of authoriry uf the Kavango Legislative Council. were prt-
sented to the Kavango Golrernment hy the Minister, Mr. M . C. Botha, repre-
senring the South African 4;overnmen1.
In his address at the opeiting aremony, the Minister said :
"On hehaIf of thc Siatc Prcsident aiid the Goveinmeiit of the Republic
of South Afriw, 1 wisl-i to congratulate you, the leaders and the pcopie of
Kavango, on the irnpc-rtant decisinn you have takcn to proceed with the
esrahlishnient of yotir OIwn tcrriiorinl governmen t.
. . . . . . . . . . . . . . . . . . . . . . . . . .
The step that you are naw taking will bc naturai and understandable
IO al1 honcst mcn. for surely i l i s the aiin of every people to exist and bc
recognised a3 a specifir: group so that i t can live in peace, truc tu ils oxvn
culrurat Iraditions and insritutions.
Thcsc aspirations will now take tangibIe shape through ihe establish-
ment of your own goqrernmcnt,for you can preserve and develop your
identity as a people only if you arc cnablcd to do so yo~rseI\~es. This de-
cision*yuri have iaken is therefore also a message to olher poplcs that
the people of Kavanyo have set o u t upon the rnad to nationhood."
.In reply the Chief CounciIlor of thc Kaifango said:
764 NAMIDIA (SOUTII WEST A ~ K I C A )
"1 s p u k on behalf of this Legislat ive CounciI and the people5 of Kavan-
go wken 1 say that the RepubIiç of Soiith Af'rica is oiir best friend. It is
our pioFo~inclwish and desire that these bonds wiIl frorn roday on b w m e
still strongcr. That whicIi is iaking phce here t o b y is but the beginning
of a niatter of great importance. The people of Kavango are also eaçer to
tüke ti~eirplace arnongst the people of the world. Wc dcsirc to accompiish
ihis iri peacc and fricndship. In order to achieve this we definitely iteed
thc asjistance and guidance ofü good friend. T h t guod fritnd is iht: Rtpiib-
lic of South Arriw. who will help us on the road to progrcss. 1 thcrcforc
now, on behalf of the govcrnmcnt and the pwple of Kavangu, request
you and your government that. as in the past, you wiH also assist us in
.
the future . . WClcarn t h t oiir afiàirs here in South West Africa are still
being disciised in the Ilnitcd Nations Orr3nizalio11.WC have also heat.d
that a casc in regard to our affiiirswill agaiii t>e heard in the International
Coui~.tlle, the governrnent and the people of Kavango wish to state our
point or view in this regard vent clearly. The ~peoplcof Kavango havt
always livcd in thc tcrritvry ol Kavarigo and t e have no desire to obtain
any Ic.nd or have authority in any other par1 of Soulh West Africa. Our
land kas great development potentialities and the gnvernmcnt of Kavango
intends to mskc it our aim and task to undeitrrke this developinent. It is
our desire to live here in peacr as a separate people and to lead our land
and cur people to progress. In Snuth West Africa, in thc Rcpublic of
South Africn, in Africir and thc world peopIcs will be found who exist in
thcir rirvn riglit. Why cannot the people of Kavango, just as orhrr people,
exisl in their owvn right:! Musr we then be herded as cattlc and goats intv
one kraal by othcr pcopIe who Iinorv nothing of our aspiratioiis? T'bat is
defini-:elynot whnt the people of Kavango desire. It is For rhin reason chat
we toilay address a reqiiest to the other peoples in Africa and in thc world
s e accept the right of the people of Kavango,
that tlicy too will r ~ ~ o g n iand
to th(:ir ou9 existence jiist as they recognise their right to their aivn
existence and desire t hat it be accepred.
LVc havc ii guod fricnd in Souik Africa who has nerzeryet occasioncd us
anq. harm. We knnw that the Republic of South Africa. aî a good friend,
witl h:Lp us."
86. Thc a h v c accouni of the cvnstitulional develnpment of Ovarnboland
and the Kavango iIlustrates the South Africün Government's approxh to the
prinçiple of self-deiermination and the niethods hy which thai principlc is
k i n g implernented in thc circurnstanccsof South Wcsl Afriça where the various
groups hate never formed an integrated riirit. As indicated elsewhere, rhis ap-
proach is cntirety in line with rhat envisaged by the mandates sysiem, and was
fulIy recq!nized as propcr in ternis of thc Chartcr of rhc Uniied Nations. In-
deed, the British Crimeroons, British Togoland and RuandaUrundi, al[ three
former rn:inùaled terri tories Iarer pIaced under trusreeship, w7ere evcntuiilIy
divided or1 an crhnic basis '.
IV. Siimnrary Rrvirh-.of' General Ec:oironric L)evet#p~~reiif
87. As iiidicated in South Africa's Pleading:; in the Suiilli West Africo cases
' Vide Anncx C , pp. 34-36. [Nol rrprodrrred. d.:

I.C.J. .?Ieudiw.~,Soutli We.cfAfrira, Vol. I I (Counter-Mernorial). pp. 289-310.
M'K1TTI:N SI'A'I'E.WENT OF SOUTH AFRlCA 765
aiid in Sorzfh Wtr.~ Afrilra Sierey 1967 ',
the natural eiivironnient of South
West Africa is basically uiifavourable for ccononlic deveiopment. i t displays
grcat diversity resulting in spccial probleinç of administration and dcvcIopment.
The Iérritory h s an area of X21,269 squarc kilomeires including the area of
Walvis Bay {measuring 1,174 square kin.), which is part of the Rcpublic of
South Africu -.It coirstituti:~nearly 3 per =nt. of the rolaI area of Africa while
its 749.WO inhribitants represent only about 0.2 pcr ccni. of Ihe lotaI populaiion
of Africa. II has one of tlic lowcsl popuiatioir density figures in the world.
Tnprigraphiïally Suu~liWest Africa can he divideci into three regions:
(il The !\'a~nib an exrremt:ly arid and dcsolatr: desert region strerchinp dong
the en tire coast-linc ~o a width of betweeii 80 to 130 km.The major porlion
of the Namib receives an annual rainrall of les3 than 50 mm. per annum.
(ii) The Crnrral Plnrenii is the region lying t o thc cast or ihe Naiiiib. I t varies
in altitude hetween 1,iIOO and 2.000 inetres and offers a diversificd land-
scüpc- of rugged iiiounrains, rocky outcrops, sand-filled valleys and plains.
(iii) Thc Kaloltai-i covers the easiern, north-castcrn and norttiern arens of
Soiith West Africa. Tlic dominant feiiture of this region is its thick cover
of ierrcstriat sands anil Iiinestones 3.
In terms of land arca only 32.1 per cent, of tlie 'Ièrritory rcwives an average
annual rainfriii of inore thm 4 0 mm. The rainfall ovcr rhe p[ütcau arcd im-
proves stradily froni south,,west to north- cas^. Ovritnbolaiid, Kavailgo and the
Caprivi are situatcd in the highest rainfall region of South West Afriw. These
areas are favoured not only by a larger annual amount of prccipitation but
also by a rainy =&on of longer duratirin.
In cornmon with othcr ürid regions of tlie world, rhc cffeçtivenessof rhe South
West Arrican rainfall is eveii Icss rhan that indicated hy the avcmgc rilinlaIl
kcausc of the hgh variabiIity of rainfall and thc high rate of evaporation.
Ilense vegetation is conlincd tu the north and rrorth-cast of the Territory.
The areas to the west of th: escarpmcnt are so bnrren a5 to preclitdc ü n y rorm
of agriçiilt uraI esploitiit ion. In the central rcgion the vtgetation changes -du-
alty from an arid shrub vaiicty to an cipeii thorn savannah and scattered trees
towarrls the north.
AgricuIturaI and industrial deveelopntent in South West Africa is seriously
hampered by a seilere Iack of watcr. As a result of the low and erraiic rainfall,
normal dry-land cropping can be practised ovcr onIy 1.1 per cent. of the
Territory's surface. Tfrc grzzing areas have an extrernely Iow cstrrying capacity,
In Annex A ' it wax shovin that thc tnrv bas~cphysical factors of South West
Africa's cconomy are recurrent cruel droughts and ihe vast distances which
separate human settkn-ient;. Almost aII the needs of thc modern wctor of the
econoniy niiist be importcd: aIl fücl for power and transport. m n c h i n e ~ ,
cquiprncnt, ccnicnt and rnany othei building matcrials. iiiost consunier gouds,
and even a great deal of focd. Indtd. [ h m conditions, couplcd with the danger
of fluctuaring prices for it5 few prirnary cxporl products, makc the econornic
growth or South Wrs~Africa seem aImost miraçiilous. This can Io a great ex-
Anncx A at pp. 7- 15. / ,V?r i.eprodiir~d.j

I.C.J. Plmdiir~s,SoiifIi Il'esesf Africa. Vol. I I (Coiinter-luietnuriaIl, para. 1, p. 289,
and para. 50, pp. 354-3hS. Th-re are also a nuinber of i'ilands off rhc co;rsl or South
Wesr Africa wtiiçti art: part of the Repnblic of South Africa.
I.C.J. f'lrrirlinrs, Svrrtli tyr.sr /Ifrini. Vol. I I (Counier-Mernorial),p. 293.
' At p. 59. (Nui reprud~c~id. :
766 N A M I M A (SOUTH WEST AFRICA)
i ent k arkcribed to the intimate commercia1, financial, teetmica[ and personal

ititerrelaiionships wilh South Afrim's economy.
88. Dajpjtc the lirnitirig factofi inhi hiting economic progress, the Terriiory's
1969 Cirrriss Domestic Pfoduct (G.D.P.) of R368.9 rnillion was two-and-a-half
tiines as high as in 1960h e n i i amounicd tu RI 45.6 million. Evcn when changes
in the pricr Ievel arc climinated, the l'erritory's G.I>.I>.has doubled duriris Iht:
decade as appears from lhe foIlowing table:
CROSS DOMFSTIC PRODUCT AT COKST A Y T ( 1 95X) PWICPS, 1 954-t 9C>Y '

( G r o s Du~nesticProduçi at facior çosi)
l'rires
I Cunsicrnt
Prices I
89. Re.il income per hcad of thc population rose by no las than 53.4 per
cent. diiring 19Gû-1969, Le., froin K249 to R382. The average annuai increase
in real G.D.F. per capita arnounted to 3.55 per cent. diiring 1963-1869as
against 2 07 pr cent. pcr ünnurn in 1957-1963. .fhis may he compared with
the raie o f 1 per cent. üttained by Africa as a whole (except South Af'rica)
during 1960-1966.
As the folIoiving iabIc shows, wiih the exception of Ljbya wiih its ahundant
resoiirces of oil, South West Africa's per capita incomt: of R49I or $687 was
thc high~:itin Africa in 1966, higher even than that of South Africa ($569) and
respective l y ien and r hrcc t irnes as high as that of Tanmnia and Zam hia.
YU. L'icwed in longer perspective, it appears that South West Africd's real
G.D.P. has driubled not only düring the 1960s but also düring the dccade
1950-1959, and evcn during the four-ycar period 19461950,when i r rose from
R36 million to R72 million. (See iable on p. 768.)
Thc fact thai rates of growth or G.D.P. of more than IO pcr cent. per annum
at curreni. prices were açhicvcd over lengt hy periods (1 952- 1957 and 1963-1969)
with a raie of 6.5 per cent. iit the interniediate years, is, il is submitted. an indi-
cation of thc soundness of the administration of the Territory. (Sec table on
p. 768.)
-
Repubtiç of South r2rrica, Department ofritatislics.

WRiTTEN STATEMEKI' OF SOUTH AFR1CA
GROSS IXiMESTIC PROVIICT AT FACTOR COST FER CAFITA:

I?lTERYATIOKhL COMPARISO'I '
(U.S. dollars)
-
Cuuntr.v 1563 1966 Coutirry 1963 1966
A Lgeria 200 hiauririus 271 219
Angola 68 Morocco 168 168
Botswana 94 Mozonibiquc 68
Burundi 46 Ni ~ c r 74 83
Carncroon 109 124 Nigeria 71 75
Central Afriçan Rep. 100 Port uguese Guinea 69
Chad 62 Réunion 280
Com<irti Islands 89 Rwatida 33
Cungo {Brazravjlle) 1 61 Seliegal 183 147
Cringo, Deni. Sierra Lconc 123 144
Rep. of ? 156 98 Somalia 65
Dahomey 69 South Afriça, Rep. of 466 569
Ethiopia 46 59 Southern RIiorltsia 207 210
Gabon 1i25 406 Soutii West Africa 410 687
Gambia 72 Sudan 94 96
Ghana ;:07 289 Swaziland 1 95
G uinea 96 Tanzania, United
lvory Coast 179 223 Kep. of 64 67
Kcnya 96 II2 Tanganyika 60 67
Lcsot ho 7X Zanzibar and Rniba 102
Libcria 238 277 Togo 86 118
I.ihya --21 1,056 Tuni3ia 200 184
Mudagascar Y2 101 Uganda 6R 85
Malawi 50 57 Unitcd Arab Keputi-
Mali 68 lic 143 2 167
Mauritanie tOO Upper Volla 43 44
%amhia 165 236
91. These figures reflect die subsianiial iniprovement in thc niaterial wcll-
being of South West Africa s peoplcs,
Indicative of progras its tlicsc figures are. they do not irnpIy that the econorny
af South Wcst Africa is cotnparabIe with that of a country as advanccd in-
dustriaIIy as the Kepublic < i f South Africa. l'hc Tcrritury's cconorny is in its
infancy, and in the foreseelble fulitre \vil1 he unablc to sustain iis prozress
without the dosest links witli tlie Kepublic ofSout h Africa. Tts Gross Durriestic
Product is lcss than 4 per cent. of thnt of ihc: Republic, aiid sonle fivc yeais
ago its national inconie war put at 1.9 per cent. of rhai or Souili Africa. Such
a srnall market does not p:rinit of substaiiiial rnanufacturing, whilc cxpotts
are largely preçludcd by t h : high cost of porwr and file[, aiid particularly by
ihe gi'eat distances separatirtg Iocal industries fronl both thcir suppjiers of raw
matcrials and tlieii custornl:rs. For lhese reasons, the econorny musi rernitin
dependent for the fort~eeablefirt urc on prirnary prciduct ion-livestock, fishiitg
and rnining-rvhich aocoitiit for about one-half of the Territory's Crross
Domestic Produçt, and iiicst therebre rernain vulnerable to fuctuülicins in
demand and ru dimatic an<. other nntural factors.
Lrnited Nations. Starisrictrl Yrarlwrik f969. pp. 557-558. Every ycar covers the
period of 12 months comrncnçing 1 July.
Dala not strictly comparable witli thosc for subseqiient years.
768 NAMlBlA (SOUTH WEST AFRICA)
COMPARATIVE DATA OS G.D.P., 194-1953 l
Gross Dornesric
Perc.enr~~:r
c.urirril)iiriun of
icgjou seciorr!ri flr? G.D, P.
f roducr n! f 95.8
pricrs
Agriculfirr~ Miriinfi und ,V~znirfuc+ R K prr
Yerir forrstrr. and uurrFinr iilring niilfion head
- .fis/;i~rf
-
"/O
--
x
1946 12.4 3 -9 36 97
1947 15.4 ..7 .-7 48 125
1 949 21.5 2.8 53 143
1949 26.5 ? .U 58 142
1950 30.4 2.3 32 171
1451 37.9 2.3 91 21 1
1952 37.6 ?.3 95 21 3
1953 34.7 4.1 101 220
In sIioi.1, South West Af1.ica.s econonly is not unly srnall in si7e: i t is highly
vuInerabIc lo Factors beyonrl its cnritrol. It is also duaIistic, likc a11 economies
in their early stages of devdopmcnt; for sidç by side with ihe invesl~itent-
intensive and Liighly productive economy, trüditional subsisrence cropping,
pastoralisin and food gathering persist at variaus levels of dcveloprrient. The
small moriern ecrinotnl; alone cannot suppori thc higli cost of educationa1,
heillth and othcr scrvices for aIt inhabitants and is therefore heavily dependent
upon the KepubIic of South Africa.
Iy. B~ankin~
nrid f'irin:rcial Services
92. As indicatcd in Anncx C hcrcto South West Africa forrns a part of the
R a n d nioiietary area which. apart fi-om the Rcpubliç. aiso incrudes Botswana.
Lewtho and Sivaziland. The Terrifors shares in the conirnon pooI cil goId and
forcign cr.changc rcscrvcs of thc arca \:hich are administered by the South
Afriwn Keserve Bank operating. iijrcr dia, as the Territory's CkntraI Bank.
The Terriiory i s entitled io rnake use of Sourh African capital resourws and
-
Reputlic of South Africa, Departnient of Stntistics.
At p. 0%.[NUIreprurlrtced.j
rnay draw from the conilnon pool of gold and Soreign exchange rcxrvcs,
subject rn the samc conditioiis as are applicable to residcnts uf the Rcpublic
of South Africa. This has in îact contributcd very appreciably to the emnamiç
advance of Sourh West Africa.
93. In respect of rnining operations, conditions in Soiith W s t Africii. tiiake

partictilarly greal demand:; on modern technology, itnd s i n e al1 mines must
still provide their own wariir, power, housing and civic amenilies. and hear
the çonsiderabie costs of skilIed and orher personnel, only highly wpi(a1ized
and tcchnimtty proficient companies can conduct operations oii a scalc to
niake niining profitable. Vast distances from supplicrs of srorcs, sparer;, food,
etc., are additional coniplic:aling factors.
Of the variely of iiiiiieral:; known roexist in the Territory, only diamonds and
a few base nlincrals are at çire.wnt bcing extractcd on a major scale. Apart from
diarnond~,only 9 largcr miries were in operation in 1969 ivhilst thei-e were
13 srnalicr, and 34 small I-iiiningand quarryiny ventures. A fcw new mining
propositions are approacliing t hc production stage, and orhers arc k i n g
cxplored.
In 1969, rnining and prospecting crnploycd about 17,000 persons, paying
tlieni 1114.8 million in cash alnne, apart fi-ornthe appreciable benefits in kind.
The induscry cnntributcd Iieiween one-third and tii~o-fifthsIo rhe Ten-itorv's
G.D.P. (38.6 P r cent. in 19651, and approxirriaicly R I 4 million to public
revenue in the form of expwt diity arid profit tax.
Tora1 investment in rnining was cstimatcd ai RjX.3 rniiljon in 1966.
Diamund mining involves thc stripping uf v i i s ~quantitics of overburden

(20.7 miltion cubic rnctres in 1969, incliiding 2.8 million cubic metres in respect
of foreshose activities). Coiisolida~edDiamund Miries. the principal prnduccr,
operates a huge fleet of earrh-siioving vehicieç. reputed ro k onc of tlie largest
in the world.
The '1-surneband Komb2ii jnines of Tsrimeb I;brporatiuri I.td. produccd the

Tcrritory's total output of blister çoppcr, reiincd lead, lcad!copperizinc cun-
ccntratcs, çadrniuin. and white arsenic in 1969. The Tsumcb Coiporatioii
I,td.'s smelters and ancillar-y plant can prodiice 36,000 tons of blister çopper,
100,000 tons o f refi~iedleatl. and 90 tons of cüdrniuin nietal per year. fn 1769.
595,298 tons of ore were niilltd.
'I'he Mütchless Coppcr 3Iine was broiighr into opcriition i i i 1970 by Tsiimeb
Corporation I.td. in an area 16 miles west of Witidhoek.
The South Wesi ACrica (.:ornpany 1,td. opcratcs the IIerg Aukas Mine near
Grrioifontein and thc Briinniberg West Mine. The former supplies çonentratcs
of zinc silicate, zinc!leüd suiphide, lesd~vünadiurri,
aiid the laiter crincentrales of
tinlwuifrarn.
The South African Irvn and Steel Tndiistriai Corporation Ltd. ("1SC:OII")
brouglit its zinc mine at Kojh Pinah into full production in 1969, rnilIing a total
of 236,944 ions of ore. At Lis, the Corporation ivorks a large body of low-
grade tin-haring pegmaf itc:.
Situaicd in the Raster cc-iintry of Rehriboth, scit;lh of Windhoek, thc Klein
Aub Kopermüalskappy Rpk. srartcd working in 1966 a copper deposit of
appreciable size. Concenirates of approximately 53 per wnt. copwr are k i n g
produccd.
Coiisiderable knefits are derived by the Basier cotninuriity îrom the operaiion
of rhis mine. Atrcntion may be drawn here to the correspunding advantages
accruing IO the people of Ilarnaralarid from the Vis and Brandtierg West mines
Iying in ilieir horrieland, and ihc Rossing minc localcd on i t s bordcr (50 miles
from Swakopmund).
Referene may also be made to the Iarge-sale productionof sa1t (1 30,769ions
in 1969) by cviiporation of sca wiitcr in largc pans scvcn rnilcs north of Swakop-
iiiund. A product of Iiigh purity. suitabte for the chernical industry. is king
obtained.
94. Altliough agriculture now contributes no more than ahout one-eighth of

the Territory's Gross Donrestic Produçt, i i constitiiles the country's economic:
basis and will rcrnain so in the foreseeabIe Future. Yet drought. epidemics of
stock diseise, and marketing conditioiis abroad-factors IargeIy beyond [ocal
contrnl-retider ihis indusrry liable to severe selbaçks. Several such setbacks
havc occurrcd in rcccnt ycars, the Iatest onc k i n g s scrious drought in 1979
and only f ü r m management of a high order, sübstantial support from the
anthorities, and the exxpansion of IocaI rneat-çanning facilit ies have Iirnileù
stock lossi3 und sarlccd thc industry frnm utter ruin.
95. In 1968/1969,aniiiial husbandry accounted for 98.1 percent. of the total
gross value of commercial agriçulttiral outpi11 which was estimated at R58.6
million as cornparcd with R44.4 miIlion in 1965. CattIc alone contributcd
60.1 pcr cent. of the totaI, and sherp, nioçtly Karakul, 34 per cent.
Animal liiisbnndry
Car:/P
Slaughter stock
Dairy products
Shrep
Karakul pelts
Wool
Slaughtcr stock
I Pigr
Slaughter stock
l Othcr animal husbandv

Field crops-total
Horticulture
Vide Annex A, pp. 61-68, and Anncx C, pp. 55-57. [h'ur reprudz~ct?d.j
* Repubiic of South Afriça, neparrrnent of Agricultural Economics and Market-
ing.
(a) Cul fie
95. Ditc tu thc Tcrritory'~extrcrnely Iow carryirig mpaciiy, onIy extcnsivc
caitle l'rrritiing is possible, ;,nd this entails considcrablc capital outlrtys on the
fcncing of farrns and rhcir s?ibdivisivninto camps. The provision of warer has a
critical bearing on the ecanoini~~ of cattlç raising, ntit to mcntion thc vast
disiances to inarkets '.
Livesrwk sraiistics covering t fie yzars 1966 to 1969 show that cattIe {and also
goats, Karakul and athcr rhccp) showcd a substantial increas-24 per wnt.
withiri three years.
The large majority of coniniercial herds produce k f . .Mil k is almost entirely
incidenral and sccondary, c <cept for frcsh-milk produmrs near the towns. Thc
Territory's small populatiort can absorb only a fraction of rhc meüt produced
(7.9 pcr cenl. in 1969 as co~iparedwith 7.4 per ccnt. in 1965 and 1Il.3 per cent.
in 1952). For the reniainder. extcrnal markets have to k round.
Unforiunately. however, the extensive mcthods of stock-raising nccessi tated
by the physical environment, cannot yicld regular supplim of high-grade beef
for the very cornpetitive overseas markets. Thc anirnals must dcpcnd almost
cn tirciy on naiurül yrozing becaust: addiiicrnal fodder cannot be grown Iocally
whereas importation from the RepubIic or elsewktere i s practicaliy ruled out by
v e r - appreciabIe t m p o r t costs. Aliogether 2,853.1 tons o f bccf wcrc cxported
#verse- or to othcr African countrics in 1969 as against 389.6 tons in 1965.
0 1 1 account of the iitdu:itry's high cost structure, al1 exports 10 overseas
rnarktts entai1 financial lorses, and for al1 practicsl purposcs, thc Tcrritory's
cstile industry wiII bc doomcd unlcss thc Repu blic of South Afriw continues t o
purchase the buik of the br:ef niarkeied. During the period 1965 ta 1969, the
Republic bought between two-thiràs and four-fifths of the iota1 animais
marketed, ihat iis. from 240,1100tri 260,Wû a year. Around 17,000are slaughrered
Tor local consumplion, and most of the rest is cannod-apin mainly for sale in
South Africa.
At presenr, the bulk of the cattle is raiicd on the hoof to markets in South
Af~ica.If this market weri: to faIl away. thc onIy aIternati\*e would be ta
slaughtcr thc animais locall:,, and tu try and sel1 the carcasses or canned nieat
overseas. As the 'lérriiory's costs of prodiiction are higli despite the scientific
inethods applied in the inod:rn sector, cliil l c d or frozen beef couid only be sold
ar a considerablc 105s. The canning factories cnuld process at best one-third of
the 350,000 tn 400,000 animais that are availabie for sale every year.
It has been established thai the iierd of catt le of the ti-trec northern homelands
(Ovamtwland. Kavango and Kaokuland) can be raised fram the current 844,500
to appraximaieiy 1.5 inillinn once niare watering points are avaiIahle. At ail
output o f 20 per cent., these homeIands alone coiiId ihcn produce 300,000 head
a ycar, about half for local -:oonsumprion and rhe rest for export 2.
(b) Dniry incluustrj~
97. The production of cream and the manufacture of butter reprcscnt thc
main dairying activities. The industry's output is particularIy susceptible to
' Thus, t o namt just one example, scientific study has cstablishrd that oxen railed
from Soulh West Africa to Caoe Town For slatightcr. luse apprtixinialely 10 prr çenl.
more in Iive weight than rhose sent to ht sla~ighieredwiihin the country. t'ide
H~rzel,R..Louw. D., and Ifeydenrych. F., I.oss of Wei~~hr in Tfuizsif uf Oxrn
Tmvefiingtiy Raii,frotn Souih- IYest AJricu tu Cape 7 o w n ( I949), table 1.
Vide Lauw, D. J ., FitIitre Porenriril o j nimal Pror/uctiun in Soutli Wesr .4fri.cn
(19b8), p. 4 ,
772 Y\IAM[BIA (S#UTH WFST ~LPRICA)
clirnaiic conditions, and aIso relies on rhc Repirblic of Soulh Africa as a

niarket for i ts siirpItis bu [ter and dried hutterrriiIk.
Local hutter consumptivn hiis bccn rising s i ~ d t l yover the past few yrars,
from 2,382.932 Ib in 19fiOj1961 to 3,030,218 Ib in 1968/1469. As rota1 pru-
dliction kas shown a faliing trend over the same period, exports to South Pifric3
have decrezqed accordingly. Thc 1968/l969 cxpori figure of 68,400 1 b was
exceptioniiliy low and cornpares with aii aniiual average of about 1,612,000 for
the previous three years.
Overseas sales of surplus buttcr art: pussible only ut a Ioss karise of high
production and transport costs, and the RcpubIiç's rriillingncss io purchase the
Teriitory's stirplus, albeir at a higher prict thari thar of N e w ZeaIand buttcr, i s
of substaritial valne to South Wcst Africa.
(c) Shefip atzd iclrficr srnuli stock
98. Those parts of the -1èrritory with iin s\,cntge rainfall of less ihan tO inclies
(254 mm.) ü ycar, which coiiiprises virtually tlie whoIe of the southern half and
portions cf the north-western region. arc reasonably wel l adapted to small siock
farming. Tlie hardy Karakul sheep in pürticular has prvved ablc 10 m n d up to
the arid eilvironmcnt of thcsc paris whcre rnost of the 3 million head are kept.
The ris~ngprnceedq rmlized by exports of KarakiiI pelrs has provided some
welwme relief amidst the problems hesetting agricuItme. Dcspitc thc scvcrt:
dimatic conditions, thc nuinbcr of pelts exporteil rose froin 2.24 million in 1965
io 3.74 rriillion iq 1969, thus increasing totüt value from R14.03 rriillion to
R72.21 million.
Thus, although thc indiistry is progrcssing, it is noi rvithout its problems7
produciny as ii does a winrnodity, rhe demünd for tvhiçfi depends on îashion
and is sensitive to econorriic i~uctüationsin overseas cnuntrics. TIic lighi xwighi
and the specific curls of the South Wcst African peli give it a coinpetitive
üdvantagc ovcr ihose l'rom other sources. I Io\wver, these advantages were
achieved as a rcsulr of continuoiis rewarch and experirnentation, and on1y by
constant Gare in resFct of the intricate brccding tcchniqucs will i t be possible to
mainiain the high staridrrr.dç arid tlie coiiipetitiveness nf the indiistry.
> KeguIai specializedcourses for Karakul brecders are well attended. Advcrt is-
ing 'cani~aignsisare k i n g intemified, and the growing intcrcsl of overseas
buycrs iws vindicütcd the large sutris sprtit on sales proinotioi~(RGIO.000 in
196811969 as itgainst R50?,000 in 1964il965).
NoivGays Burghers (citi7.ens) of the Rehnbtith Gcbici arc buying regularly at
auctions of st~idrams, art- rcgisicring as breedeis, and are improving their
kno\vledge of techniques. [n 1969, no Icss thün 128,667 Karakul shccp wcrc:
recorded in the Rehohoth tiebiet-more than three times as rnariy as in 1967.
(dl Crop.5-
99. Owing to jack of \riter. grain growing cari play only ü rninor role in the
southcm scclur. whcrc 63.000 büys of n~aizeiind 16,41[1 b a s of other grains
werc reaped in 1465.In gond years, the northein territories are self-suficicni in
grains, bit1 in bad years rhc Adn~inisrrationprtivides large quaritities at heavily
subsidi-xi1 priccs. In short. thc sou1 hcrn swtor niust repulai-ly get the biilk ci!" its
maize from the Kepublic, while the nonh kas to do so iinterniittently.Impui'ts
anioiinted Io 858.008 bags in 1954/19h5 and 424,370 bags in 1965:1966.
Furthcraorc, about 75 pcr =nt. ofthc soulhcrn seclor's requirements cif fruit
and vcgei.ahles crime froin the IZepublic --üpproximately 6,XM tons a yciir at
a total ccst of R453,000.
Ficid c:rops estiniated üt R765,000 and horticultiirrrl prodiicts vaiued at
K361:QW wcrc pruduced in 1.90811969, that is, onIy 1.9 per cenl. of the aggwgatt
value of al1 agricuIturaI priiduçts.
The production of maizi: is cloxly associated with cliinaric conditions ünd
varics çonsideriibly. Wheti:as about 125,000 bags were reaped in 1967, the
frgure for 1969 arnountcd to approximately 234,000 and in 1970--for which
year a figure is not yet alrailahle-outpui can be expected to have skrunk
considcrably bccausc of drriught.
In respect of rht firsl nice ntonths of 1970, wc1I owr 300,00t) bags of niai7e
had to he imported from the Rcpublic of South Africü in order 10 çover rhe
shartfüll bctween local production and actual needs. The recurrent drnughts
would inevitably lcad ro famines of serious dinrcnsions if i t ivcre not for tlie
wady avaiIabi lity of emergcncy supplies from the Republic or South Africa
and thc spcciaI rneasures taken to distribute these suppIjes.
(e) Dixtr~ssRdit'j.
100. The whoIe of South West Africa is ar presenr listed as a drought-
stricken area, and on i July 1970 cxtensivc rclicf mcüsurcs iwre announced.
Farmers in South Wesi Africa are granted iiiore favourable conditions than
those in South Africa. in P.prit 1969 the Government had already announced
certain discounts on the triinsport o l rnaize by rai[ to thc Tcrritury (37.5 per
cenl.) and as from 1 July 1970, al1 focd traiisported to the 'Ièrrito- for dtought
relief qualifies for a rail rebaie of 75 per cent.
The roiIowing amouilts M-ercspent on distress relicf in thc Tcrritorq.:
--
' Rçpuhlic of South Africa. Departinent of Statislics.
"ncludes niillct, ciiltivnte< inainly in norihern homclands.
' Excludiii~,Karakul pelts.
Furthcrrnore, arrangements were iiiade to siaughtcr cattlc at Okahandja and
Otavi in addition to those a1 the Windhoek abattoirs. From May 1970, approxi-
rnatcIy 450 cat t ie were slaughtered driily rit the Windhoek abat toirs-an increase
of alinost 100 per e n t . on Ihe normal figure.
151. A table shoiving cornparativc daia on rneat production in a nuriibcr of
African countries follows,,
1368
MEAT PKOL)C~C~.IOF;.
COMPARISO?I WlTH A NUMBEK OF AFRICAI*; CO1:NI.RII.S '
(Beef; C'eal. Muiton and Lamb)
Producrion Prodttcrion
Popitlar ion i~irrrir!uns
Counrry ( i n iirt'tric)
(in i,OO.Oj tons)
peu 1,0110
qf poprifarion
Svutli West Africri 709 62,000 87.4

RepubIic of Soiir h
Africa 19,167 550.000 28.7
Swazilarad 395 12:OW 30.4
Botswana 611 11,OoU 27.8
Cganda 8,133 153,000 18.8
Khodesi:~ 4,940 69,OOU 14.0
Ethidipia 24,212 327.000 13.5
Tsnmnki 12,590 162,000 12.9
Cenirat Plfrican
Repuiilic 1.488 13,000 8.7
Unilcd Arab Kcpubliç 31,693 234,000 7.4
Morocco 14,580 107.000 7.3
Camerocin 5,562 3 2,000 5.8
Algçrin 12,943 70.000 5.4
Sudun 14,770 74.000 5 .O
Seneçül 3,685 1 ?,,O00 4.9
Chad 3:460 f 6,000 4.6
Zambia 4:OM 14.000 3.4
Nigcr 3,806 12,000 3.1
Kcnya 10,709 3 1 .WO 3 .O
Angola 5,362 IS.IKK1 2.0
Ni~~ria 62,6s0 160.Ci00 2.6
Upptr Volia 5,175 13,000 2.5
Gliana 8,376 17,000 2.0
MozamI>iquc 7,274 10,000 1.4
Mali 4,787 6.000 1.3
102. Six basic Tcatiires of l'ne Terrirory's agricuIturaI econoniy stand out:
first, its v~ilnerabilityto cIimatic factors and stock dixase;
second, its dcpçndence un wttIe and Karakul shcep;
ihird, the inability of Soulh West AFrica's rneat and dairy prnducts to cnnipete
regularl:~on international miirkcts. aiid, because of the srnall interna1
market, thcir rdiance on sales to the Republic;
Republicof South Africa, Departmenr of Statistics; United Nations, S!ntislicui

Ycucnrhook 1 Yi59, pp. 206-2 1 2.
Opportunities toexpand f i s h g opcrations furthcr to thc nnrth \vil1 h e provided
by rhe develripmcnt of tiarbour faciii ties at Mowe Ilay, about 170 miles (270 km.)
soiith of ihe Cunene River. mouth.
Dirring the past two demdm, cornrncrciaI fishirig has grown to be one of the
Territory's principal industries. Total capital invest~nenr.ainounts to over
KZ0.5 million, ahnut 1< 13 nlillion t hereof in buildinrrs, rnachinery and houdng,
and more than R7.5 million in fishing vcsscls.
The industry I S providing direct employrnent for about 3,300 persons, and a
furrher 720 are empIoyed as crews on fbhing vessels. Tn 1968. abour R2.5 rnillioi~
was paid in salancs and wagcs to factory pcrsonncl, and a further R9 million
was earncd by boat owners and their crews from the fish catch.
105. The total carch for rhe inshorc peIagic h h F~çtorics during 1969
arnountcd to 954,082 ions as compared with 527,000 in 1958. I t is anticipated
that the catch for 1970 wiIl riot e ~ c r e d820,000 ions. Aiter reaching a rccord
total of R49.3 million in 1966, thc industry's sales have dcclined since then,
rcüching R35,9million in 1969.
The fishinng industry's high s~andardsof quality and i i s eficienl opcraiing and
markeling iechniques, topther with thc powcrful financial and technicd
backing givcn it by South African fishing companies, have placed the industry
oit a sound commercial basis.
A serious threat to the long-term existence of' the industry is k i n g posed,
howcvcr, by the activities, just outside territorial waters, of trawleis and
factory ships from non-African couniries. The wwilhdrawal oTo ctilleçtivr:m u a [
quota or 156,000 Ions pclagic fish from inshore factories can be attributed
mainly tr, the fishing actjvities of these vessels. It n=d hardly he emphasixd Lhar
the livelihcxid of thousands of persons of al[ population groups and ihcir
dependant%is thus being jeopardized.
For thcir lmrt, the responsibIe South African authori ties are doing everything
possible to safeguard the coniinucd existcnm o r ihis industry. Intensive as
weIl as exre~isiverescarch programmes are k i n g carried out, and are to be ex-
pandeù furtfier, under the guidance of the Marine Research Laboraroy of the
Republic of South Africa.
AIthoiigh the fishing industry exports a large portion of its products, i t is
expcricncing a rising demand for its m e d and other prodiicts in South and
South West Africa. I t is abovc al1 the lesscr dcvclopcd population groups who
appreciate thcsc highly nutritive but yet Inw-cost products.
106. In 1<161!1963.thc building industry reachcd its lowcst cbb of ihc dccadc
bu1 was booming a year later, and has done so ever since, IargeIy as a result of
thc Administration's çonsrruçtion programnies which have deliberately
maintained :r high IcvcI of activity during a period whcii ùrought and fuoi-and-
mouth disease scriously afîected the Territosy's econorny.
As administrative and cornniercial capital, Windhoek rnirrors the -1erritory's
econornic Lie, and thc value of building plans approvcd by the Municipality
of Windhoek is particularly significant in this context. III 1962 thex amounted
to RI ,661 .O00 and rose by an anniial average of RY24,WO to 114,432,OIK) in
1965. Durinç the ncxt three years, the average annual incrcasc strnounled io no
Vide Amtex A, pp. 72-73 and Annex C. p. GO. l Nnt rrpu(rrlüced.1

WRI- EN OF SOUTH
STATEME~Y AFRICA 777
less than R2,134,<10I)and in 1969, thc total vaiuc of building plans approved
arnaunted Io 8 record O< Ri 1,084,000 -a figure twc-and-a-half tirnes as high
as in 1955. The inhibitan ts alritost doiiblçd rrorn 44.000 in 1965to 80,000in 1969
whiIe the value of rateahli: property rosc morc than thrccfoId from R55 million
to RI83 million.
The growth of building and construction is equaIIy apparent from the
Territory's consurnpiion of ceinent. In 1957;1963 this wss onIy 76,138 short
tons, and rose by an anncal avcrage of 11,022 tons to 131.247 tons in 1967!1968.
In each of the folIowing two years, consumption increascd by almost 34,000
tons. b r i n ~ i n gthe total 1.3 IY8,81 1 tons in 1969/1970.
Prüctically al1 cernenl irsed in the 'lèrritory is brought iir from the Kepublic,
tlie bulk thereof hy rail. The building induslry's absolute dependenw on rhcsc
supplies k i n g prodirced in Soiith Africa and mrried hy rhc South African
t<aiI\vays was vividly dcrnonstratcd in the Iatter haif of 1970 when no cerritnt
reached Windhoek for one week because al1 available trucks were needed for
emergençy rnarket ing of ~:atlle nrcessitated by the serious drought. Al1 building
activities in the town canic to a complete staridstilt.
For many years the par= in the industry was set by the Administration but as
of laie the private secioi kas becorne no less important than the public one.
That is not to say thüt thc Iatter sector's swnding has IeveIIed out or even
decl i ned-qu ite the cont Vary.
Cumparcd wirh RI 1.80 million spent by the Administration o n its principai
cnnsrruction activities in 1962/I963, the figure hsid airnosi irebled by I966/196:
wlien it stood at R33.17 niillion. In 196qi1970,the Administration's activities
reached a record figure of R4I.68 million, more than one-half thereof fnr road
ccinstruction.
Currently, buildiiigs tu a total value of R19.96 nlilliori are iinder consi ruction
for the Sotith West Afriçii Administration alone, that is, excluding departments
of the oother gnvernmental agencies. In addition, a numbcr of major projects are
king çrcçted or will & c:orr~rrwnczdin the near future. 'These includc fivc new
hospitalç at a lotal estimxtcd cost of R29.61 niillion.
Furtherniore, and apatt from thc considerilblc conslruction activities in the
norihesn and oiher horaelands, housing is being proviùcd by focal iirban
authorities in the sourh h r the non-White peoples. Thus 846 hoüses have becn
builr for urhan Chloured w o p l e during thc pcriod 1967 i o r~iid-1970at a cost of
R2.27 million (including singIe quarters for 350 pcrsons at Lüderitz). At the
same iime, R2.03 miIliori was spcnt on urhan houses for other non-Whitcs as
weII as K1.9 niillion for single quariers. In S c p t ç r n k r 1970, there were 195
houses for CoIoureds uniler conjtruction, 175 thereof at Windhoek; the rest ai
Swakopmiind.
At present. the -1-erritoryis being scrvcd by 150 building and coiistiuction
firnis. 33 electrical and I:! plurnbing contractors, as weIl as the fullowing oiher
specialist wntrüçtcrrs: .team installations, 1 2 ; mechanical scrviccs, 8; and
heat ing, vent iiation and :iir-cnndilicining, 7.
III 196UjI961, u toial il 116 iirins in private coiistructiun were recorded as
against 151 sevcn years Iatcr. Whereas total eniployment doiiblcd duriny ihe
pcrjod, frorn 4,303 to 8,:; 14, the nurrikr of Whiii: enipiayees declined slighiIy
n~hilerhe iiuinberof Coloureds alnrost rrcbledandBantuabout doubled. 'I'henct
w I u e of output rose froin R5 million in 19M)/1961 ta RL2.7 niillion in 1967:
19m.
V A M I R I A (SOUTH W E S T AFRXCA)
107. Leveds of activity iit the foregoing sectoi-s, particulai-ly in tlie Iivestcxik
iiidustry. substtantially aiTecl commerce. Neverlheless, even severe sctbacks,
such as drriiights and epidcmics af stock diseases have not represwd economic
advancc in !;outh West Africa.
'I'he vüst infras!riiçturai and other deveIoprnent projects iindertaken in the
Territory by the Government of thc Rcpublic of South Africa, have acted as
a powcrful :;tirnulant not only to Construction but alm to Conimerce. Expe-
rience in 1970 has shown again that thow projtvrs and lheir wçondary cFïccts
çonstitute an important economic stabiIizer when iigricult ure is hi t by crises.
Hencc ciII ailailabIe indices point to a pei'sisteiit long-terni ewnorsiic grciwth.
G.D.P.ac current priccs increascd at an average annuai rate of 10.23 pcr
cent. between 19153 and 1959.
SriIcs of moior spirit rose froiii 15.8 iiiilIioii iri 1964 to 24.9 million gallons
i i i 1958. At present, sales run at an annuaI rate rif 29.4 rnilIion gaIIons.
A toral of 7,183 new motor vehicle'; were registered in 1969 brinçing the
tata1 of al[ ;~chicIcsrcyistered ai the elid of 1469 to 55,476.
The turnover of the Territory's retaiI tradc csrablishments amountcd to
R55.8 rnillion in 1966/1957 a5 compared with K40.7 miIIion six years earlier
(1960!1951).
Despite the rapid expansion of the past fcw years, consumer pria? indices
incrcased only moderarely cornpared with soine other African States. Thus
food priccs rosc by only 15 ptr ceni. beiwecn 19ti0 and 1968 as cornpnred wil h
an increase of 45 per cent. in Zambia and 237 per cent. in the Dernocratic
Republic of the Congo.
XII. itlanilfncruring '
108. The scopc for manufacturing and prwcssing industries is sevçrely
restricted by f hree factors. Firstly, the Iimited aggregate local demand from a
small, widel y scattercd popuIation; stcondly, the nature and Iimited supplies
of IocaIly produwd agricultural and other raw niatcrisis; and, thirdIy, thc
high costs of transportation. powrei, water and permnnel which, togetlier with
the aforemcntioned factors. render most of the Terrilory's manufactures
uncomwtitive on world rnarkcts. Thcrcforc, thc rnanufiicturing scctor is Iargcly
confmed to the processing of perichable products for consumption in the
Territory aiid in rhe RepubIiç, to finishing and irssrnibling nialeriais otitained
from South Africa, or to specialized rcpair and rcIativcly srnaIl-xaIc pruduc-
tion work.
109. The growrh of this sector is IargeIy depzndent iipon developrnents in
agricuIture, fishing, construction and, to a lcsxr cxtcnt, rnininy. 11 b us
i Iittle
prospecl of becon~inga leadiiig and growth-prclmoting sector, aIthough low-
cost hydro-eIcctric poiver ïrom the Cunene scheme could chnge the whole
situation.
Of the 217 industrial establishments recorded in 196711968, no less than
100 wcrc çunçcrned with the nianufactrire or processing of agricultural, sylvi-
cultural and marine raw products. Thc rcmaindcr was madc u p rnostly uf a
large diversiiy o f sinall estahIishnients ancillary to the n e e d ~of the population.
-
Vide Anncii A. pp. 73-75, and Anne?: C, pp. 69-70. [Nef rcprodrrcrd. f
Viile Annrx A, pp. 7 1-72 aiid table on p. 73, hrinex C,p. 64.!Nor rrprodüced.l
N'HI-tTEK STATEMEm OF SOUTH AFKICA 779
The developineiit of the ~naiiufact~rring indusrry during the pcriod 196û/19SI
to I967/1968 gave rise IO a 57 pet- cent. increasc in aggregate employrnent.
However, C8loitreds, wlio play a purticularly important rolc as skilled and
scrni-skilled woikers in ~nanufacturingand cons!ruclion, doubled in nitniber
wliile rheir total ç~tlariesand wages more than trebled.
ln 19Ci7j 1968, the 8,818 cmployces of a11 population groups in rrianufacturing
carned a iota1 of RK.8 r;iilIion as cornparcd with R3.7 million earned by al1
eniployees in 1960/1851. The net value OF output rose by an average o f R2.53
million annualIy, reaching K30.8 million in 1967iI968.
XII!. Rnihvay. Rond Trunqurr, Ilurfi~tirmid Air Servir:es'
(a) Kailiuay ser i:ices
1 IO. As n7as stated in Anncx A ', rhe heavily subsidizcd services provided
by the South Af~icanRailways and Harbours constituted a major Factor in
the devclopmcnt of thc Tcrritory's ecoiiomy. Vast distances and a very srnalt
population. coupled witIi a serious walcr shortage and the absence of IocaI
fuel, rcsiil t in disproport ionately high capital invcstment and financial losses.
Yer, Sriurh West Afri~d1s by Tai- lhe best equipped On the Akican continent
in rail and rozd transporr facilities, rneasured in distancc run pcr 10,000 inhab
itants. The lalest available figures are g i w n in thc table oit page 780.
1 II. 'fhe railivay systcïn in South West Africa has the bertefit of al1 research
conducted by the South tifrican Railways, and a great many other wnirali~ed
facilities. For instance,the civil and electrical staff cstahlishment in the Terri-
tory is limited to the rniiiirnum nquired for the ntainltnance and renewal of
equipinent. This is madi: possible by the Iarge enginocring tsiablishnienr in
the RepubIic of Soiith .Xfrica, expert in fields such as research, harbours,
structural design. bridgi: and pcrnianent way engineering. soi1 mechanics,
organization and mettiorls and the design and purchasc of cquiprnent.
T e c h n i d resourrxs, personnef, eqnipment and stores rtre transferred from
the Kepublic to rhc Tcrritory for major construcliona1 work. 'I'hese arc
readily avaiIable. a s are communication equipment, cIecirical su bstat ion
cquipment, power cables. spares for construction and bridge steelwork and
permanent way material rcquircd fur ordinaiy maintenance and the restaration .
of the washaways wtiich occui in the Territury 3.
Interçhan~abilityof ::raftffbetween the two countries is also an important
factor, h a u s e , duc to IoncIinas and other pi-oblems, South West Africa is
a dificult area for Railuay jwrsonnei IO work in. Abiiut 7,700 persons are
employed by the Railways in the Territnry, and under the Railways housing
schcrne niore than 2.000 houxs have been purchased and erected for Riijlway
ernployees. The horisebr~ildingprogramme costs apprvxirnately R550,Oûû pcr
annum.
1.453 miles of railway Iinc suppIernented by a few hundred milcs of loops
and sidings have been laid. as cornparcd with the Republic's lotal track inileage
of 19,436.Thiis, although the South West hfrica system is very Iarge in reIa-
tion to the population it servcs, it constitutes only a srnaII fractian of thc total
network operateci by th; South African Railways and Harbodrs. Irnprove-
For hackgrriund information see Annex -4, pp. 79-83, and Annex C,pp. 57-59.
{No{r ~ p r u d t t c ~ d - j
Al p. 19. [Kat ieprodrrced.]
-For further details ritic, Anncx A , pp. 79-83. arid Annex C. pp. 57-59. lNo'or
veprocfuced./
Lengih of rail-
P,>priiution ways in km., gev
Corttttry rrtiin,i~rs (in IIl,tt00) IO.OUU of flre
iiz kiri. pnpufntio~r
Sriuth West ~ f r i c i 2,338 63 37.1
Republic or Sriutb
Ai'rIca 19,635 1.746 11.2
Congo (People's Republic) O00 83 9.6
hlauritania Ci75 70 7.5
Angola 2,776 508 5.5
1.iberia 518 104 5.0
hlozarnbique 3.21 8 687 4.7
Tunisia 2.012 457 4.4
Algria 4.248 1,098 3.9
Sudan 4.479 1,318 3.4
Congo (Denlocratic
Kepublic) 4,479 1,530 3.3
Togo 493 160 3.1
Sencyal 1,035 341) 5.0
Zamhia 1,038 361) 2.9
Sierra Leone 597 2 20 2.7
Dahomey 579 230 2.5
Tanganyika 2,351 999 2.4
GuInca 825 342 2.4
1-i by a 362 156 2.3
Kenyu 2,08 5 910 2.3
United Arah Republiç 1,780 2,890 1.7
Morooco 2,029 1,296 1.6
Ivory Cuitst 558 37.5 1.5
Ugaitda 1 ,w 137 1.4
Madagascar 863 618 1.4
Mali u45 449 1.4
Ghana 948 754 1.3
Upper Volia 61 5 475 1.3
Malawi 508 390 1.3
Carneroon 5 17 510 1 .O
Nigcria 2,865 5,640 0.5
Ethjopia [:O90 2,220 0.5 i
ments are in hand ai a cost of Ri3.66 inillion of ~ h i c hmore [han R 1.88

miIIion will be spent during the 1970!1971 financial year.
The liailway Administration is at prcscnt giving consideration to the inclu-
sion of an item in thç 19713 1972 CrtpitaI and Betterinent Estirnates t# provide
for the erection of an acrial CU-axial cabIe over the entirc scct~onof railway
Iinc betweeil D e Aar in the RepuhIic and WindIioek in South West Africü-a
distance of approxiniateiy 382 miles-to rehal~ilitatc the existing old open-
wire route. Apart from the n~anifuIdadvantages of a co-axial cablc it will
faciIirate the installation of automatic telephanes at railway outstations where
x OT the order of
no power is a\*ailablc.The estirnated cost of the project wiII l
R3 miIlion. . -
' Republic oï South Africa, Dcpartnient or Siatistics; Soiiili African Ruilwnis

ontf Hurfrnzrrs, AnniinC Kcporr. IQB8[1969.
WRITTEX STATLMENT OF SOUTII AFRICA 781
112. Thc upward Irenll or rectnt years in the ewnomy is clearly seen in
the rising freights handled by road, rail, harbour and air services, as welI as
in passenger trairic, as rellected in the following table:
Taainage
con vc) cd
!?uns,'
196211963
1953j1964
1964/196S
1965! 1966
196611967
196i11968
196Rf1969
1969;1 970
ApriI-
June 1470
Most of the incoining trafic is from South Africa, mainly the 'l'ransvaal,
and consists of consumer goods rnanufactured in, or obtained frorn, the
narrhern part of South iifrica. Thc rctum load is chicfly liuestock, reqriiring
a difïerent type of wagofi. Thus both types of trucks are hauled empty in one
direction over a distance or abolit I,UU(l miIes. 'l'his is costly but inevitaliie.
In the same way ftsh, fruit and rcfrigcration trucks are retiimcù empty in ont:
direciion, ttius adding to .>perrttingcosts and the losses of South African Raii-
ways from irs opcratiun in Sourh Wesl Africa. A similac situation exists in
the conveyance of ores for shiprncnt 8t WüIvis Bay, and in the carriage of
Iivt.sicick frorri reniote rarmitig areas to the rnetit-canning factories.
Truck Ioadings for the financial year 196911970 amounted to 235,276short
trucks compared with 22:;,523 for the previous s'car.
I I ? . Up to 31 March 1970, ir had cos{ South Africm Railways and Har-
bours K t 0 7 million to biiild up irs preseni assets in South Wst Africa. This
figure would be much higher if past costs wcre to be exprcssed al today's
prias. The total spent izi capital works, improvmmt~and reneivals up to
March 1970, amounrcd tii R98.03 million: R61.26 million was for permanent
ways and works, K 17.42 rnillinn was for dicscl lucornotives and R I 3-56 milIion
for railway and harbour ins!alIs~tionsat Walvis Bay. Rolling stock for pas-
seoger transpurt in the 'Territory w a vaiued at K8.38 million, and goods
vehicles at K36.80 milIior;.
The systern is run at a l o s which, for the period ApriI 1922 t o Mar& 1970
totalled R63.08 miIIion. .%gain rhe figure wouId be far Iiigher at present-day
prices. The reason for the loss must bc sought chiefly in the economic structure
and the low population density of the Territors, which involvc Iong hauls
fhroiigh arid, unpruductive repions. Tlie Ioss woutd have been much çreatcr
had the sysfem not been integrated with that uf the Republic of Soiirh Africa.
South AFrican Railway:; an3 I-Iarbours

(b) Roud rrrinspri services
114. Rwsd irrrnsport services are run at a lnss which for the eighi years
cnding 396939/1970 totals R 1,599,434. T h c x scrvices are. Iiawever, essential to
the wetfare of the peaplcs: pariicularly in tirnes of severe drouçhts, such as
occitrred in 195911960 and during 1970 when the situation was savcd by thc
daily ffuw of foodstuffs brotight by rhe liailway roiid vehicles to the stricken
areas. Ovarnboland is the major bcncficiary.
No fewer than 71 points inland arc scrved weekly hy schedu1c and spocial
trips, and during 1969j1970 a total of 3,978,380 vchicle-miIes and 3,735,183
trailer-miles wcre covered. Durjng the sanie period a total or 169,575 pas-
sengers were carricd, and 3 13,577 tons of goods, 88,753 gallons of crcarn and
183,640 u n i ~ sof [ivestock were transporied. Thc plant in service comprises
29 düal-purliose vekicles, 13 passcngcr vehicles, 60 ten-ton gouds vehicIes, 16
heavy haulers and 167 irailers based at I7 depots.
115. South African Railwuys also run the harbours ar 1-üderiiz and WaIvis
Hay. 'l'tic foririer can only bcrth çwasters up to 18 fcct draughl, and is there-
fore of Iiniiied usc. Walvis IIay has bccornc Soiitli West Africa's gatelvay to
the oiirside wortd. Hawcver. this is South African terriiory, and was ncrcr
part of Gcrman South West Africa, or of the artxi undcr Mandate1. This
rneans that South West Africa's on1y effcciive outlets hy iril and ship are
through Souih African tcrritory.
-1'he rrcnicndous increase in traflic since the Srcond World War has neces-
sitated extensive improvernenrs at Walvis Bay which now has 4,600 ft. of decp
water quays, three tinics as inuch as in 1929 7. There is also a tankcr bcrth
for vmscls up fo 630 ft. length. There are 29 wharl crancs ; 5 are shortly to be
replaced hy modern equipnient and 4 additional long-jih wharf çranes are on
order. Therc i s oiJer 110,000 sq. ft. of flaor space in covered storagc shcds;
one cargo sb.ed is at picsent being rnoderni7ed and rcbuili and a new mechanical
workshop kas been erecred. A inudcrn signal statioii is in coiirx of erecrion.
Façiliiies art adequatc for prcsent needs but planning is in hand for dcvdup-
ments to m ~ x ian~icipatedfuture nczds. Operaiional losheu during the nine
years 1961i1962 to 1969!1970 averaged R ? 50,000 per aiinum.
(d) Air Serv.iccs
1 16. During the 1969!1870 finrinciaI ycar 49,383 siandard dass passengers
and 13,065 Skycoach passengtrs were conveyed on the services in and froni
l'ne Repuhlic, invdviny a lotal of 47,7 19,521 passenger niiles, as wetl as 885.39
tons of freight and 184.85 tons of mail; and 6.528 passengers, 95.629 kilos ot'
frcight and '7.272 kilos of inai1 wcre çonveyed on inrcrnatinnal routes.
The revenuc derived froni the standard class services bct~rocnJohannesburg
and Windhoek during this ~ r i o darnauntcd lu R2,074,249 as againsi expen-
diturc of R2,086,538. I<evenilc frum Skycoach sercices anioiinred to R500,756
and expcndiiurc lo R9<iS,I)YZ. refiocting a IOSS of K494,336 which is absorbcd
by the Soutli African Railrvays and Harbours.
T k total capital cnst nf airficïds amoirnted t O more t han R 13 million.
Nor. For that mattcr, wcrc a number of islands off ihe Coast of Sotith I k i
Arric;i whjch form an importani centre of the gtiano industry.
Ditring IY6Y11970,1,441,089 ions of cargo were I~andlcdcompared iviili 905,3 13
tonsin 1Yblj1462.
WtlllTEN STATLvfENT OF SOUCH AFRICA
117. Civil adniiriistration of the distribulion of stores is dependeni on trans-

port. For this and other purposes the various administration hranchcs have a
deet of more I b n Z,I100vchiclcs of'various types opcrating in the Territory,
with maintenancc and rewir faciliiies at fully cquipped garages at a number of
centres '.
118. trnpressive advarices have becn made in constructing roads, bridgcs

and airfields, despite th+: formidable probIems posed by thc Tcrriiory's geo-
graphica1, physicai and :;eological nature, natiibly ils low population densip
and the ievast distances bi:iween rowns and settleinents.
119. Ciood progress is being made towards the abjectivc of connecting
border points from souih to north and From wcsi io east by bitumtn roads.
From Oshakati in Ovamboland in the north through Griinau in thc south tu
Nakop on the south<asti:rn bordcr, t hc rwad has been hi tumcniz~rl,and also the
roüd from Grunau to llioolsdrift on the Orangc River. From wcst tu east
thraugh thc central part of the Terrjtory, ihe road has been bihmenized from
Swakopinund through Okahandja and Windhoek to the 1. Ci. Strijdoni Airport.
The construcrion of a Iiitumen road from this airport to Gobabis is to be
compLeted by August 1371. The construçiion and improvernent of roads in
othcr sections of the general network continue without interruption.
Two large bridges h a ~ ebcen cornplercd. The one ovcr the Swakop River,
2.155 feet in Icng~It,a i Swakopmund was wmpleied during 1969. Anothcr,
1,762 rcei iir length was çonrtructed okter the Nossob Ri\*er on rhe main road
close to LoonardviIle.
The following are sotrie of the achieverncnis in 1969:
153 nliles of bitiimcn rmid carnpIcted:
twenty-one hridgcs as wcll as 2 10%-level bridgcs cunsiructed or improved hy
thc Roads Brancli of the Adminisiralion, as well as a large n u m h r of box
cillverts. slabs and ret:iining ivalls;
a total or 13 hridges completed by contractors, including tlie 3 largc: br~dges
mentioncd above and aIso 5 road-ovcr-rail bridges:
576 rniIes of grave1 road constructcd and re-gravetled;
mainienance of grcivcl rtiads cnrricd out ovcr 18,989 niiles 3.
'I'hc Kcclmafishoop Aci-odrome was conipleted diiring 1969, and SV was the
Karnanjab AirtieId wherc work had starled ofiy at thc brginning of the
year.
120. The foIlowing niajor projectç were under çonsrruction in kpternkr
IY70:
l'ide ftirther, Anncx C, pp. 65-66. ;Nui rcpradiiced :

Vide Anncx A, pp. 83-84, and hnnex C. pp. 63-65.[Nolrcprodirced. !
This comprises 774 r.?iles of triink roads, 5,713 miles of niain roads, 12.283
miles of district rt~adsand 209 miles of ganic rcstrve roads.
'
784 NAMIDIA (SOUTM WEST AIXICA')
Projrct COSI{ Rand) Dare of mnipf~tiuii

1. (a) Du;iI carriageway :
Wirtdhoek-Kupferberg
1,380,733 End 1970
ioad
( b j Eros Airpori
7. Swakopnund-Walvis Bay- Rooikop
i
road 3,745,982 End 1970
3. Otavi-Grootfuntcin road 2,946.846 First half of 1971
4. Ksrnanj:ibKuacana road
(Northein IiornelanQ) 5,538,757 Firçt hall of 197 1
5. {a) On<Lekarcmba40babis road 5,055,823 End 1971
(bJ Bridges on Gobabis road 445,155 First half of 1471
6. Tsuiiieb~Grootfuntcin-Berg Auka?
road 3,796,857 Latter half of 1971
7. Hardap-Stampriel road 2,042,723 First hall of 197 I
8. Windhoek-Kercs roüd 2,58 1.320 First half of 1972
9. Orji\liarcango-Outjo-Pforte rvad 748,492 Recently cnrnpleted
10. (oj Otjiwarongo-Kalkfeld road 3,20il,(XX) Latter half of 1972
(bj Brirlgcs 500,000 Latter half of 1972 .
Toral R31,982,688
A rvad fr3m Keetmanslioop to Belhanie, txpoctcd to cost approximately
R8.3 million (including bridges), and scheduled for completion in 1974, \ a s
put out on ti:nder in September 1970.
121. The i'ol lowing projects wcrc in thc planniiig stage:
Projet: Approxirririle Expecred dure of
cos! (Haiiùj coinpierion
I . (a) Kalkfeld-Epako road 2,701),0 1974
{ b ) Bridges on this road 5ai,m0
2. Ornaruru-Damaraland
homeland road CiIl-wciithcr road) . ,-
1 .(XKI.IHX) 1974
Total R4.2W7000
--
The following further projects appcar on the Road Branch's programme:
1 . Pfortc-Okaukuejo road
9. Okaukueic-Naniuroni road
3 . Liideritz-Aus road
4. iVcstcrn Link Kriad (Preeway)
Komas Ilochland Intcrchange to
Brakwaitr Inierchangc
5. Flood protfction works,
Marienta1
6. Keeimanshoop-Aroa b road
7. Stampriei-Ariinos rriad
8. Aiais-Fish Itiver Canyon road
9. Windhoek-Keres road
(first 30 ~nilcs)
1O. Ondaripa-0s h i kango road
(Ovambdand)
122. The extrcrne variations in cIiniatic conditions and geological formations
posc considerahle problcms in the construction of roads. Most of the specific
ImI problcms encountered during cansiruction work are dealt with by the
staK of the Koads Brand~.but whcrc necessary the assistance of the National
Tnstitute for Road Kae;!rch of the South African CounciI for Scicntific and
Industrial Rcsearch is entisted.
The following are a Few exarnplcs of ihe problems encountered:
On the cioastal road betwtren Swakopmund and Walvis Bay, Ihe probIem of sand
encroachent was studied in dctaii by the National Instiiute for Iioad
Rescarch, and after conducting wind tunneI experiments the Inslitute was
able to recornmend co~istructionmethods that rcducc ~ h forniation
e of srind
duncs on the new roüd .
On tlie Usakos-S~akoprnundroad. the presencc of gypsum in the road building
grave[ presentcd seri<lus diRculties. Stabilizing rhç local grave15 with
ccrntnt was technically unsatisfiictory and also too costly. By hlending
various soiIs found cm the works, the gypsiim content eventually was
redutkd tn a tolcrablc margin.
In Ovaniboland, the non.-availability of gravcl posed a major problcni. Spxial
techniques including iierial photography in prospecting for thc very fml
grave1 deposits had t u be employed. Eventually, materials were hauled
over long distalies afi.er it had bccii cstablished that bitumen stabiIization
of local sands would be too costly.
. Most of the profesional and technical manpowcr needed in conjunction
with thcst projects, mus1 bc drawn from the Rcpublic of South Africa whiIe thc
aid of research orgmi7î.tions in ihe Republic is pfaying a crucial rvle too.
Progress is however bcin,gmade in training local persans to play a more active
roIe in road constructioc.
This is particuIar1y the case in the northern territories inhabitcd by -the
indigenous population groups. Th* training is concentratcd on the operatio' of
modern cornp1ex niachines and work in suwcy tearns.
123. The Tcrritory's i:conorny is benefiting in many ways from the vast
improvements madc to the roads system durjng the past fcw years. TravelIing
tirncs and above al1 niain~enancew s t s for vchicieç have heen reduced drastically.
124. As the Post Ofict. rendcrsessentiaI scrvices to alt papulation groups, its
revenue figurcs mn servt: as a reasonably reIiabb standard for measuring the
ratc of the Territ or y's devclopment iind the progras of its peopies. The rcvenlie
erirned by the Post Oftice in South West Africa increawd from R65,015 in 1920
i o R4,I26,452 in 1969119-70.Even now, when telephone fwilities are availahie in
airnosi every part of the Fast Territory, it is no easy task to keep ahreast of the
ever-jncreasing demand !i>r te~ecommunicationservices.
125. The vaiuc of telephone, teiegrapii and radio instaIlotions in South
West Afriça amounted tt) R24,044,190on 31 March 1970. Tf the value of buiId-
ings and other eqiiipmi:nt were added the amount would bc cunsiderabIy
higher. Postal and tclcc.~mmlrnicdtion buildjnçs at a tutal estimatcd COSI of
R2 million were in the course of construction in the second half of 1970-
'I'he particulars o l capirai expendituse o n the development and renewal of
telecornmunications during thc Iast three years are a? follorvs:
Yi& Annex A. pp. 84-35, and Annex C,pp. 60-53.fillnt reproduced.]

780 N931IRIA (SOUTH WEST AFRICA)
19-57/1968 1968jlP69 1969jf970

A R R
Trunk liiies 564,353 578.757 821.867
Farrn lines 434,748 504.088 421,512
Cabres 200,563 350,701 297,201
Carrier installations 454: I 38 465,546 594,808
Exchange connections 176,4 17 285.457 352,143
Switchboardi and exchanges 393.020 005,833 ,805,185
Telegraph services 159.496 159,576 217,[90
Radio servicss 67,636 99,575 77321
'1-oolsand etjuipment 62.218 96,201 78,216
Trqnsport - - 179,325
Total 2,5 17,089 3,133[3,744 7,840,368
-
--
126. Mail iscrinveyed throughout the Territory and froni the Territory to the
Republic by rail, road and air. Inlcmal airmail is convcycd by Suidwcs-
Liigdiens and air-mail to t tic Republic by South Africait Airways. ?'he expendi-
ture an convcyance amounted to K31 1.8 13 ditring the timcial year I968/1969.
In IY69JlY70 allogether 2,7I 3,372 parmls and rcgistcrcù art iclcs wcrc handlcd.
Therc are at prcsent 32,127 telephone connections in South West Africa
compared with 22,!H#) five years ago. This rtprewnts an incwüse of approxi-
niately 30 per cent. and is an indication of rhe rapid grorvth af commiinication
faciIitics.
In August 1970 seven autornalic exchangs and 55 manual exchanges rvere
i i i opcrat ion.
Renlers of telephone comectians iii towns made 23,500,000 IO=[ calls
during the past yerir, while anothtr 2,500,000 IoçaI calls originated from farm-
line telephona.
The number of truiik cal ls increaçed from 2,800,000in 1964 to 4,4 14,032 iii
r gfi9( r 9x1.
Physical lrunk routcs now installed in South West Africa total I1,goO miles
and carrier circuits installed 76.565 rriiIes cornparcd with 8,500 miles of physical
trtinkç and 38,600 miles of carrier circuits six years ago.
The following radio stations exist in South West Africa at present :
Post cifficc siatioiis. . . . . . . . . . . . . . . . . . 13
Very Iiigh frequency s~aticins . ............ 440
Privaie fixed statiuns . . . . . ............ 149
Privalc mobile stations . . . . . . . . . . . . . . . . 71 3
Shipstations . . . . . . . . . . . . . . . . . . . . .179
A i r c ~ i f stations.
t . . . . . . . . . . . . . . . . . . . 88
Arnatcur stations . . . . . . . . . . . . . . . . . . h2
Thc vastncss of the Terri t ary necessitates i hc extensive ~ i s of

e motor transport.
The Post Office owns a flcct of tvcll over 300 vehicles, ranging from Iighl sedans
to ren-ton trucks. Many of the hertvier t y ~ art. s equipped with cranes and
other mechanical aids to facjli tatc the haiidling of heavy equipment.
During the financial ycür 1969i197t) a total miIeage ocif2,872,519 miks was
covered; and transport costs. including deprccialion, amounted to R442,277
in 1969 cornpared with R280,469 rhc previous year.
--
Ns11niwr of
re!ephonrs
per i,W
Soirth West Aîrica

: Kepuhliç of Souih
Africa
Spanish North Africa
Rbiinion
Rhodcsia
Mau~itius
Libya
TrinIsIn
AIgeria
i Zarnbia
, United Arab Republic
Swaziland
Morocco
1 Congo (Brazzaville)
'
1 Gabon
Senega t
Kenya
l v o r y Coast
Botswana
, Angola
Madagasciir
Ghana
1.iberia
Ugunda
Moratnbiquc
Sudan
Portugiiese Guinea
Sierra l.tt>nç
Malawi
Tanzania
Lesotho
Centra1 ~ZtricanHcpublic
Daho mcy
Somali
Guinca
'I'ogu
Mali
Et hiupia
Coiigo (Dem. Kep.)
Nigeria
Chad
Burundi
Cameroon
Niger
Upper Volta
Rwanda
-
United Nations. Sioti:;rirnl Yenr Book 1969, p. 464, and Repiiblic of Sourh
Africa, Department of Stalislics.
788 KAMIBW (SOL I-H WES-~.AFKI<X)
127. South Wcsl Africü'r vas! expanse? and its sparse population divided
amorig sinall cornmunitieç up ta 150 miles apart, pose unusuai problems in thc
construction. installalion and maintenance of telecommunicati~ns. These are
k i n g tackled with great ingenuity by the Post Office engineers and their aides,
t h teIecomn-.unicatiun
~ teckriicians and telcphonc mcchanics. The lask of this
g o u p oi offir:ersis 10 provide and maintain as efficiently and ccononiicaI1y as
pmsible a rnodcrn oornniunications network between al1 comniuiiities in eilery
part ot the country, no inalter how rcrnotc, and. ris wilI appear from ihc Follow-
ing tables, this nctwork compares favourably witfi those dsewhere in Africa.
(See table on p. 787 and Iielow.)
MAIL TRATFIC, 1968 '
Conti tri-
I irrnis sent ur
received, dunrus-
tic and forei~n
( i n r:ouoJ
Pupulu! ion
1"
Soiith West Africa

Repiiblic of South
Africa
Ghana
Zam bia
Gabon
Lihya
Mauritius
Swaziland
Tunisiu
Madagascar
Ivory Coast
United Arüb Repuhlic
Alneria
a go la
Malawi
M<irmct>
Moram bique
Liberia
Nigcria
Niger
Rwanda
Btrrundi
X Y I I . Econoriiic Adx~atrcetnenlof the hidigcwous Pcupies uf Xoirrh Wesl Africa
1 18. The i;rowth of cducational facili ties and the raisins of eduçational
standards arc having a profound influence on the wonorny. Of special signifi-
cance in the present coritexl is the trcmendous probg-ess amongst the indigenous
' Republic of South Africa, Department of Staristics: and Unired Nations,

S!rilisricul YCCVBook 1969,pp. 453-454.
TIie figures çciver lcttcrs (airrna~l. ordinary and registertd mait), postcards,
printed inatier, merchanùisc samplcs. small packcrs and phonopost packets. They
indiide mail carried without chargc, but cxclüdc ordiiiary parccls and insured lerters
and boxrs.
Vide Annzx A, pp. 89-10:, Annex C , pp. 70-76. jAro'ol reprodwced. j
WKI TTEN STATEMENT OF SOUTH AFRICA 789
population groups in rcccnt ycars. Their former laçk oî interest in modern
educarion tcndcd :doconfine ihem largelg to taqks not dernanding a high level
of skitl and prolongeù ictining. Rtit the picture is rapidly clianging, particuIarIy
because of the jncreaseil u x of the vocational training faciliries provided ai
WjndRmk iind rit Ongtiediva in Ovamboiand, the rising dcrnand Ior skilled
irtanpawer in the homelands and the numerous opliortunitics for in-service-
training created hy the prowth of the Territory's econorny.
129. In the urban an:a of Walvis Bay the aipcrufe wagw: and allowances
(includjng knefits in kind) of members o f the indigcnous groups are as follorvs:
CIerks . . . . . . . . . . . . . . . . K58 pcr rnonth

Municipal workers:
clcrks and ~lsliiers . . . . . . . . . . . . . R IO4 per nionth
lorry drivers. . . . . . . . . . . . . . . . K75 per month
nlaintcnance artisans . . . . . . . . . . . . R88 per month
nurses. . . . . . . . . . . . . . . . . . . K88 pcr month
caretakeis . . . . . . . . . . . . . . . . . R89 per month
ordinary labourers . . . . . . . . . . . . . R48 per manth
Iabourers in indusiry . . . . . . . . . . . . . K72 per month
Labourers in conimxcc . . . . . . . . . . . . R74 per month
As noted in Annex C ', ;in ever-increasing iiumber of workcrs From the in-
digenoiis groups are a v ~ i l i n gthemselv~sof the opportunities for gasiinful eni-
ploymcnt a d , in resporise to econornic incentivm, improving iheir qualifica-
tions and performaricc. 'Thus, a wide dillcfiity of skilled or semi-skilled work
I S at present being carried out by thcm. For instance, OF #,672 indigcnoiis
ernployccs in 1970 in thc: public sector, mining, industry and coninrerce, 4,222
were skilled workcrs (inr:luding a n timber of cIerks) ; 10,683 were semi-skilled;
and 31.767 were unskilli:d. Tu thcsc siiuuld be added about 24,000 farm em-
ployccs and 4,800 domestic servants, o l ivhnm virtually ulI the latter and a
large proportion of [he IOrrner can be regarded as semi-skilied.
The wages of worker:; from thc indigenous nations in South West Africa
cornparc favourably wirh, and in niany casm are considerably highcr than,
n7agesin other Afriçan count ries. This is par~icuIarly true of umkilled Iabnurcn,
who rorni the bulk of wagc ccarncrs in Africa. Apart from wages, thc: immediate
supplementary bcnctits of employinent in the ntodern scctor of the econorny
are obvious and important : better housing, f w d and clothing; irnyroved
health; a generalIy highcr standard of living. and a more secure existcncc.
130. As was pointed out in Aiinex A '. these are also lcss tangible results
which rnarkedly infl uencc thc worker's riiot ivüiion, habits, aptitudes, and out-
Iook on Iife generally, a t ~ dso have a profound effect on the rate and thc direc-
tion of furthcr cconorni~and social dewlopnient. It is in this cliniaie of an in-
crkasingly enlightened ~lndcrstandingthat thc Soulh Afrian Government is
introducing fi~rihermeasures to prornote material and niorat well-being. In
uiew d the grcai divcrsiiy and the widely differing stages of dcvtlopment to be
found aiiiongst the indigenous poples, such mcasures are corrcspondingiy
diverse and flexible.
As has bccn showri a h v e , in terrns of the policy of sclf-determination for
every population group, more elTeclive and maningful polit ical machincry
1 Ar p. 7 1. j,%i rcprud&cccl.j
At p. 93. f Not rrprodltced.]
WRITTEN STATEMENT O F S O C M AFKICA 791
A capital iilvesiment by the Corporatiun of RI 8.2 inillioii duriny the nexr
five ytars is called for hy this dcvcIoprnent programme. The amount of R 18.2
million prcsuppoxs the iirrvestrnent of a furthcr R36 miIlion in reswct of infra-
structure (=rater, power, roiids, housing, etc.) ivhich are iii fact bcing plannvd
aiid in~plementedby variriiis goveinmenral agencies.
As pointcd oui in An~icxL ', there arx, ot prcxnt, about I,500 Ovamtio
traders who own rural s:ores, and. who çan receive advice about consumer
1-equircments,purchases, :;rock controls, calculalion of çosts, saIes techniques,
srore management, ctc. C:ourses in cornmcrcc are a150 offered whiçh are at-
tcndcd by us rnanq' as 200 to 300 Ovambo traders at a iirrte.
The Biiilding Deparlmcnt of rhe Corporation is ar prescrit constructing
biiildings ro the value of K4.5 million. Thcse buiidings coniprise fat;tory and
comtiierciat prcmises, oiIicc bl~cks,housing for personnel, ctc. Cinvernrncnt
buiIdiiigs such as schooIs, hostels, clinics, hospiraIs, officas, housing, sewerage
installations, etc., are alsci undcrtaken under crintract. II is estimared thai the
Corporation will be mga!pd in the construction of buildings to the r d u e of
approximatel y Kh million towards the end of 1970. Construction works offer
opporttinitieç for in-servi,x training in a large varie& of tradcs. En~ployees
are trained to hecome inüsnns. plastercrs, çarpcnters, plurnbers, painters,
cluciricians. etc. When thi:y reach the necessary degree of proficiency they are
organized int O sii b-contrat:tor groups. These groups are ihrn given sukonlracts
in the building works of thc Corporation and opçratc for their own account
under the guidance of tk,e Corporation. Tf ilecessary, they are also assisted
frmncially.
The Corporation's buiIrIing activities rriakc it possiblc for the citixns of thc
homelands 10 part icipate in the physical development of their own coun tries
and in so doing. lo carn 2. living and irnprove their slandard of living.
These operations hcjp I O rciain incorne and profits fruni biiiIding activitirs
in itw homekanrls in which they h v e becn earntd. 'They create a market for
the produçts of homeland manufacturing venttires suçh as wood prrxlesqing
Factories, light steel inductries, brickworks, ctc. 'I'he building industry in thc
Sorith West Africa homel;.nds does, iit fact, stiinulate hon~elandrrianuFücturing
industries in many ways.
Since the Corporation zomrnenced building opcratians in 1965, its labour
forcc in the building department has gi'own steadily to the preçent Ievel of
I,314 indigenous workers of whoni 3ûû have reaçhed a fair dcgree of proficiency
in various trades. According to mcnt. thcsc tradesmen earn from 70 ccnts 10
R 1 pcr hoiir.
A nurnbcr of mcchanical wrk-shops and petrol fitling stations arc k i n g
operaled by the Corporation ivhich provide valuabIe training opportunitics in
thc mcchnimI Iield. Furtlierrrtoi-e, t lie Corporatiori's wIioIesale establishments
and distribution dcpots arc playing a significant roIe in the development of
soiind retail shops. The arinuaf turnovcr of thew whrilesale concerns has h n
rising at an average iinnii;:l rate of R0.5 iiiillion over the past few ytars.
Retail businesses are rtin by the Ccirporarion only whcre the community
mncerned is not satisfact~3rilyservcd by cxisting ventures. Where retail busi-
nessts are operated, intensibte in-service t 1-ainingis provided in order to preparc
entreprcneiirs to takc o ~ rthe . business in which they are cmpIoycd.
l'he Corporation is dcvcloping a bunking and ~nsuranccorganization which
wentually ihiill render a cornplete banking and financial service, owned by the
inhabitants of the hurrie[ands.
The wood-processing fiictory at Oshakati in Ovarnboland produces a Large
variery of furnitüre and building requirements. richno1 desks and benches,
cifi, furniiurc, bcdsteads, tables and mmponenis for prcfabrimtcd hoirscs
are some or the major Iines.
TOTAL EXPLFI-DIT UHE U N UC>Al>SA N D AIRFORTS

IF; HDMEI.AXI)S AS AT 31 MAFLCH1970
Bushnianland . . . . . . . . . . . . . . . . 664.283
Daniaialand . . . . . . . . . . . . . . . . . 519,226
Nainaland.. . . . . . . . . . . . . . . . . I.943,208
Kavangoland. . . . . . . . . . . . . . . . . 8 18,072
Ovamboland . . . . . . . . . . . . . . . . . 8.850,128
Rehoboth Gcbiet . . . . . . . . . . . . . . . 434.386
Cindangwa ................. I ,351,545

Ruacana. . . . . . . . . . . . . . . . . . . 540,896
Rundu . . . . . . . . . . . . . . . . . . . 489.149
Tsumkwe . . . . . . . . . . . . . . . . . . 111,839
Katima Mulilo . . . . . . . . . . . . . . . . 775,015
Sub-total. ... R3,268,44
132. In Annex C it was dernonstrated that une of the niijor problems of

South West Africa is the scarcity of water atid the sparseness, irregularity and,
thercfore, the iinelTectii'eness of rainhll. Huwcver. inycnuity. cfrort and rnoney
have bcen injcctcd into watcr development to such an extcnt that altho~ighthe
total assurcd yield of both surface and lincierground resources is ertirnated
ai nu morc than 5 0 0 million cubic rnetrcs p c r annum, samc 330 million cubic
metres (or 66 F r cent. of the avaiiable assured suppIy) is already being utilized
ta supply water for hurnan, anima1 and indiistrial consumpiion and, on a
Iimitcd scaie, alsu tu supply watcr for irrigation *. Thcsc schcrncs hiivc k e n
expensive 'eto construct and operate, as is evidened by the fact that in order to
' Vid~, Atmex A, pp. 77-78.anri Annex C,pp. 7 6 8 1. [h'o~ r~produced.j

The mean annual run-off of the iniernul rivers of South Wesr Africa esclusivc
of thc norrhcrn rivcrs i s cstimated at 1,500 niillion cubic merres of watcr a ycar. Of
this, sortie 7.50 milliun cubic mctrcs or 16.7 per cenr. of thc avaitablc rcsoiirces art:
currenrly hçing utilizrd in thc variaus suppjy systcms of t hc country. 'The flow uf the
infernul rivcrs in SoulIi West A f r i ~ di s s o irrcqular, often k i n g iimiied Io 0nll: n
short strctcl~of the river, and evapurütion f r o m river beris and atorage dains so high,
ihat assurning sforagc can bc provided econoniiçnlly, i t is likely that 110 more than
350 millirin cubic metres can bc ob~aioedannually cin a rerisonably lonftterm kasis.
W R I T l E N STA~l~thliitN~L
#OF SOUTH AFRTCA 793
achieve eeven this Ievel of rfevelopment i t haq been necesary to expend a rota1
of no lcss [han R8l million OF governmenl funds ovcr a pcriod of 20 ycars as
indicated in the tabte hert:un&r. This expenditure is excIusive or expenditure
by local authori ties and private enterprise which may well be of the same order
of niagnitudc.
AYXUAL E:;PE.UDII'LHE U N IVATEK UEYbWPMEXT '

tln Rand)
133. Waler deveioprnent ro date kas gentrally bcen in the form of stipply
schemcs which by their vei y naiurc not only rcquire relatively high unil capilal
iiivest inents but in addiiion entail ansiderahle effort in the investigation,
planning, design ünd çonsïrticrion thereof. As of 1970 thcrc were no less than
177 domestic water supply schcrncs wnstructed and operated hy the Stale
throughout the Territory, .;ripplying water to towns. iillages, missiori stations,
country schools and community centres. cent raIized çattle warering poinis and
hospiials. Thcsc xhcrncs do not. incIudc thc vast numbers of borchoIcs which
are equipped with handpii~nps,windmills and power-heads to supply iater
for hiintans arid cattlt in c.utlying rireas biit which, because of their simple in-
stbilliitions, arc not rcgularIy serviceci and maintaincd by thc central Setvice
and Maintenance Group attachcd tu the Department of Water Affairs.
tn order to give Mme idra of the magnitude of the task of water suppiy from
the above-trientioned 177 > c h m e sthe numkrs in various ca~tiiegoriesare listed
in the following table:
Kepublic of South ATric:i, Department of Water Affairs.

CLASSIFICATlDN 01' WATER SUPPLY SCFIEMES ACCORDIYCI TO SUPPLY CAPAClTY IN CUBIC MEi'KW:
FER ANFUM
-
1.: sô$ $ôg a )a
A tJ
, d N - P N - J P - p.+
5: = 9 - 0 Eo.Z 8 - 8 3-3 â5.E a "*
z
0 3 8 'O
8 - g O ,'ras
O
- y g -g
3
o
g o g c
c c c c
%2
r
Municipalities 1 1 1 2 1 2 2 3
Vil Iage manage-
nient boards 5 5 3 2
Mines I t 1
Touristcarnps 2 7 1
Rural areas 12 11 2
Homeland
areas 56 49 6
TotaI 10 73 15 4 5 2 3 2 3
The total capacity of the 177 schernes arnounts to 34U00,W.M mi.

Srlurce: Repubtic of South Africa. Deportincnt of Wa ter AKairs.
In spitc of rhe magnitude of ihe task as indicated by the sratistics quoted.

i t has always k e n oficial policy ta supply wütcr to consumers for prirnary
purposes, i.e., for drinki tig, cooking aiid essentiaf heafth services, at higlily
siibsidized rates. Whereas mcmbers of the White grotip are exwcted to pay
as much as 34 cenis per cubic rnefre in the urban arcas in thc south, non-Whitcs
enjoy consurnption of water for domestic use free of charge in al1 the home-
lands as wcll as in most othcr areas. Whcre cattIe-watering points are serviced,
the cost of the service is defrayed frorn officia1 funds.
134. For several years new econoiiiic deveIo~inientsaiid the rapid increüsc
in populat~onhave cornbincd to changc thc patiern of the country's econornic
lire. One effect of this change has k e n a cornpound influence on water dcniand.
Nvt only is it ncccssav tu proviùc for an incrcaxd wuter demand because of
an overall increased standard of living but in addition ivatcr require~nentsTor
mining. indtisrry, recreation and nther uses which cannot he regarded as
tu hunian cxistcncc, but ncvcrthclcss arc part iind parcel or econoniic dertelop-
ment. iiow cumpeie rviih primary water deinan&,
The= additional denlands have bccome w insislent thal schernes such as
that which was intended to supply Windhoek with adcquatc waler for at least
15 yeais. is known-veii befori: ii is comrnissioned-to be inüdeq~iate-tomect
futiire demands for mure than 10 ycars ar Ihe mosr. Schen~eswhich anly
5 years ago were considered adequate for at least IO years arc aIrcaJy supplying
water at i~iaxirnurridesigned capacity and inore.
Throiighout the Terrjiory, growth rates and consequent increases in ~ h c
dcmand for water are continually exceeding cvcn thc mvst liberai predictions.
It is against this background that tlie followiiig projections oi water deniand
have b e n :jet iip, k a r i n g in mind that even theje, judging by paqt expericncc,
arc likcly to be highIy conservative.
During recent investigations it =,as foüiid rhat developmenial aclivity in
South West Africa is likely to accderate so that the population wiIl grow and
wrrter deniands wilI incrcasc morc or Icss in acxurdancl: with the f i g u ~ sset
down in the table I>elow.
WRITI'ES STjA'I-F.MF.NT O F SOUTH A F R I C A 795
ESTIMATED Whi'ER REUCIKEHkbIS FUR SOLTH WESI. Ab-KICA '
{in million cubic metres per annum)
.-
Population al1 groups
Consumption (including
consumpiicin for industrial and
mining development pirrposes)
Large-s~ockunits
Consumption
SrnaIl-stock uniis
Consumption
Irrigatcd arca in hcctarc~
Consumption
l'citiil crinsumpticin
~ r o n this
i table il is çIe2.r tkat the peoples of South West Africa will requirt:
water frnm the northern rivers in thc v c p netrr futurc. As shown in Anneh C 2
an agreement w a concluded iri January 1969 hetween the Governrnents of
Portugal and South Afric;:, for the benefit of the Terriiory, in ierms of which
South Africa has been gr;inted !ite right to absiracl as a frrst phase up to 6
curnecs of water frorn the Kunene River at Calueque in Angola. and to take
rhis warcr across the border into Soiith West Afriqa. The construction of a
pumping scheme and a carial IOrhc h r d c r , as wcll as an intcrini powcr slation
at tIie R u a u n a Falls, ii t a iota1 cost of some K 6 niillion is at present under ivay.
These funds are k i n g provided entirely by Soiirh Africa. I I is hoped Ihat dis-
cussions can be coniinucd :rie[ween the Governmen ts of Sciuth Africa and ncigh-
bouring countriar on the uie, for m i i i u a l bencfii, of !he waters of the Okavango
and Kwando Riveis in which the Kavango, Caprivi, Hcrcro and Bushman
peopIes Iiave a special interesi.
Howcvcr, thc probïeni of finance looniç large in al! projects to wrry water
froni distant naiural occurrences to the areas where i t i s nccdcd.
The average cçost of capital ivorks ta suppty an assured flow of an additional
onc cubic mctre of water a year in buIk (exclusivt: ordistribiition costs) to con-
suiners in South West Afi.ica is of the orkr of R2 at 1970 priccs. This unit
cos1 is conxrvative wilh ~:gardto future schernes hecause the bettcr schernes
have alrcady bccn fuIIy dcvclopcd and in addition i i i s increasingly neccssary
to draw watei froni niore i-emotc soiirces of suppiy.
In addition IO the cos[ cf sirppiv, the cmz of major disrrihitrion systems adds
t the wwater when used for general purposes such as
a furthcr R I to the c o ~ of
domest ic, inunicipal, miniiig, industrial and stockwaterjny purposes.
A further consideration is the cansumption of xwatcr for irriyalion use. At
present. very IittIc of thc rvatcr availabte in South West Africa can be sparcd
for irrigation. Once water becornes avaiiable from the norttiern rivers, h ~ w -
ever, the economics of moving large quantities of water bccornc attractive
qiiite upiirt from thc fact tliat the produciion of lood and fodder crops will b~
then also assume greatei. iiiiportance.
Froni an analysis or th<;ços~of providing water-for irrigation through the
VandcrkIoof Schenie in the Kepublic of South Africa as wel1 as the Hardap
Repuhlic of South Al'rica. Departn~enrof Water Afairs.

At p . 79. [h'oi reproriiinidj
Scheme in South West Africa, and taking into consideration the Territory's
physical na:.ure, it wouid m m that the wst of distributing watcr fur irrigation
wilI be of tlie ordcr of R5,000 F r hectare.
135. The capital cost of providing the additirinal water which is eslimted
tu be requircd in South West Africa by the year 2000 will be about K2,667
million as indicated in the tüblc hcrcundcr. No aIlowance has been made in
these cosis for operation and maiiitenaiice of thc vürioiis schcmes.
CAPITAL CWST Of YKOVlnING WATER TO S O W f f WEST AFRlCh T O TtiE YEAR 2000 '
Cupitul cosr 1
~uuniiry Turai c u p i r ~ i
IoPirpply
WUIPT COS!
une tn'
million m' mifiion R
Rund
Water Cor domcstic,
municipal, mining,
industrial and stock-
watering purposes 389 3 1,167
Waler [or irrigation 2,500 0.40 1 .O00
Total 2,167
Area-Itec- Ruie pcr hcc-
tarer tore !Rand)
Capital cost of dis-
tribution of irrigation
water I00.000 5.UUV $00
Grand t<itriI cost 2,667
136. 'I'he magnitude of the task of proriding water to the 'lèrritory and its
peopIes. is fully apprecicinted by the South African Guvernrnent, and the S~outh
West Africa Branch of the Department of Warer Affairs kas ma& spccial
efforts tri produce water supply plans fur the various homeland areas in South
W-est Africa. The first of these plans-that for Ovamboland-has k e n accepted
by the Governmcnt and 0 t h ~ arc ~ . in varioiis stages of preparation. The
estimared casts of rhe plans for the folIo\ving arcas are as follows:
Ovatnbutand . . . . . . R6O miIIion

Hcrcrolünd . . . . . . . R Il0 million
ilamaraland . . . . . . . KIoOrniIIion
Kaokoland . . . . . . . R90 niiIIion
Ka\.ango . . . . . . . . R50 million
Bushmanland . . . . . . K35 million
Rehoboth Gebiet . . . . . RB0 million
Namaland. . . . . . . R N million
Totiil , . . R565 million
137. In the present context, it is relevant i o consider a few furthei factors

relatcd tu thc financial aspccts of thc task. Expenditurc during the next ten
Rcpublic of South Africa, Dcpartmcnt of Water Affairs.

WKI-1?EN STATEMEKT OF SOUTH Ai-KICA 797
years can be expected to yrow from the current 1120 million per annum to
around R 3 0 mi Ilion ptr aiinurn in 1935 and to a b u t R42 million per annurn in
1980. For purposes of corriparison it may bc mcnrioned t hat the budget nf the
Food and Agriculture Oiganizrition of the United Nations in respect of the
years 1966 10 1969 was abriut K42.5{niIIion($59.86 rr~iIliun)~ whereas loans and
credits granted by the WoAd Bank {LBRD) and the International Developmen~
Agency (IDA) for water and scwcragc s c h e r n ~thrnughout the ivorld toraIied
R40.19 tnillion ($56.60rriillion) in respect of 196711968 and 1968Jl969ttogchcr Z.
In the year 1968!1969, the two orgmizations jointly grantcd R45.77 miIIion
(Sa.40 miIIion) to the rvh AC of Africa in respect of agricultura1 projects ". For
Lhe previous p a r , the wrrtsponding figure \vas R10.81 miIIion (f I5.20 tnilIion)+.
The above estimates are based on what rnight be cxpected in the moral
course of development in South West Africa. Experience has sholvn, however,
that waier derriands are continually "yushing" waier suppIics and the çstirnatcs
may thus be conservative.
Furthermore, the vast sums nceded for water development, represent a
social rathcr than iin cconomic investrnent. In other words, the prospcctivc
returns on the capital are minimal and rhcsc schernes would probably not be
considered by banking or other commercially orientated institutions.
138. A mastcr ivatcr p l l n for the various rcgions of South West Arrica is
currently in the process of evolution with the object of ensuriiig that the orferaIl
cost in money. labour and. equipmenr of deveIoping warer resuurm wiIl yield
thc optirnuni socio-cconolnic hnefits to thc pwplcs of Sourh Wcst Africa.
As plans stand for the ppttscnt, the main suppIy scheines alonc will involr~e
several pipelines of upwards of one rnetre in diameter and well over 1,20I>km.
in Icngth, with the necessziry pumping stations to lift the water against slatic
heads of up to 1,500 rnetres. Only tlie availahility of ample power wilt bring
these requirements into th: realms OF possibility. Only ihus will it he possible
10 ensurc thüt ccomonic deveIoprnent, in particular that of thc i~ornetands,is
achieved e%cientIy, efîecti-tcly and expedit iously.
139. As was shown in knnex C, the relativeIy high cost of eIcctri~aIpower

in Souih West Africa is ail inhibiting racler in the ccunomic developiiient of
the Territor?. Wliile coat-fircd thermal po\i7erstations, which are relntively
long-lived, are compararivcly cheap sources of power in countries weII endowed
witli coal dcposi ts, this adv-întngeiis nui enjoycd in thc Tcrritory, which imports
its coal rcquireinents from the Rcpiiblic of Sourh Africa, involving a hatil o f
somc 1 *3# miles to Windtimk. Other power generating systems vpcrating on
petroleurri fucls arc ncoes:;arily expensivc io run but arc the only pmctical
alternatives where the dctnsnd is relatively srnaIl. At present, locaI atithorit ies
and most large consitmer: such as mjnes, have to provide theeir own powcr.
140. As was abo shown in A m e x C. ncl~otiationshavc k c n condiicted witli
the Goveriiment of PoriugI to develop the hydro-potential of the Cunene
River as a source of power For South West Africa. These negoliatbns havc ct11-
Wl~itiuker'sAltiiunuc 1970,p. 8 13.

Intcriiational Biink îor Kcconsiruction and Development, International Bevelop-
ment Association, Annual Reports, 1968, p. 9 and 1969. p. 1 I .
TRRD, AnnuaI Report iS'G9. p. IO.
TIIRD, AnnuaI Report 15'68. p. S.
Vide Anncx A. pp. 78-79, and Anncn C , pp. 81-83. [:Vol repundttced.i
minatcd in ihe final Agreement of January 1969 which furmiilates the basis on
which the hyd1.o-potcntiül at the Rilacana h l I s be devetoped in a first phase.
Thc Governnient has called iipon the lndustrial Dcveloprrienl Corporation
of Sourh Africa Lirnitcd, a sltrtuiory body experjenced in heiping to bring new
indusi ries into viabte existence, to undertake the financing of a private conlpany
fomcd in Soutli Wesl Afriw under the title of "South Wcst Africa Watcr
and Electricit y Corporation (Pty .) Liniited" (SWAWEK), with the object of
cxploiting as far as practiable thc power and tiiher potentials of the Cunene
Kiver. TI was initially intended to prooeed imrnediatcIy with thc cstübljsh-
nient of a !.~ydro-clcctripower stu~ionon the Crunene. In addition a pumping
siaiion buili on the river bank wmoiiIdmake possible the abstracrion of warer
from the <:unene Rivet' for the henefit of thc pcoplcs of South Wesi Africa.
Since th*:joint plan for ihe Iirst phase develcipment of the resources of the
Cunene River Basiii in terms of rhc Agreement belween Portugal and South
Africa çould not be implernented in tiine to rncct rhc yrvwing demand for
power, as ii rcsult of tht rapid growtti in tfie territory's economy, it was decided
Io build a therina1 power station wirh a çapacity of 90 niW. at Windhoek.
This inirial scheine is expected ta be in operation by mid-1972 and wilI be
followed thrcc or four ycars lu~erby the first stage of the proposed hydro-
electric scheme at Kuacana on the Cunenc River, now planned to a capaci ty
of 160 mW., feeding in10 the sanie basic transmission systcm prcscntIy in the
course of construction.
According to the latest estilnates, the 90 mW. thermal power station now
under construction ar Windhoek will cost in e x m s of R20 miIlion and if thc
first stage of the transrnixxion grid, cstirnciied Io cost over R 16,500,000, and
staff housing. are included. the cost of SWAWISK's first major power generat-
ing projecl. io be cornpleted in 1977, wiil be of the order of K38 million. Thc
exwndiiuir involved in extcnsjons to the transmission system, which already
appear necessary, and of furtlier housing, \\;il[ bring the total mst of this 90
mW. system, cxtcnding over 625 route miles (1 km), to snme K40 million
hy rhe mjddle of 1973.
Accordiiig to estiiiiates, haed on prcsent-day prices. the Iirst phase develop-
ment of the power potenrial of the Cilnene Kiver in respect of which pfünning
is already far advanced. caIIs for thc foIlowirig revised capital expenditurc:
i. Firsi strige invoivijrg generntiuii oj' 160 tn W.. pru risiunrilly jiiattticd Jor rom-
piriion Iiy 1375
R
DamatGovc . . . . . . . . . . . . . . . . . . . . . . 8,125,000
Ilan1 at C;rIueque. . . . . . . . . . . . . . . . . . . . . 5,350,000
Hydro-power station ai Riiawna . . . . . . . . , . . . . . 3 [,600,000
Transmission system iyinp in with
thatbasedonthethcrmals~ation. . . . . . . . . . . . . 10,200,000
Sub-total . . , 55,275,000
i1. Seco~rri'und t h i d .rtagcr, iini-oi~itigirrcreasc ifi ~ c r i e r n f irupudly
fi~ ?O 320tn W.
(10 be catnple~rdb.v 1983
Furthcr rcgu1:ition dam . . . . . . . . . . . . . . . . . . 6,WO,IHW)
Extensions to power station a i Ruacana . . . . . . . . . . . 4,800.000
Extensior%st o rransrnissinn sysieni . . . . . . . . . . . . -.
14,000,000
-
Suh-total .. 24.8(MI,(M10
Total . . . -
-
80,0=0
-.
\S'RITI EN STATEMEK r OF SOUTH AFRICA 799
It will bc sccn, thcrcforc, that SWAWEK's programme for power generarion
uvcr the next 1 5 years involves capital expenditure of the order of R 170 million.
141. The educritioniil system of Suuth West Africn is direclly in line with
ihe modern approach tu :ducaiion iit Africa, viz., the cmphasis on rhc im-
portance of African cultures in the ediicazion of African youth. Once ir is
agrecd, for cxarnpIe, that :.he Ovamho youth is cnritlcd i o receivc: edricational
instruction in 0varnbolan.i in thc Oiiainbo language. i t is diffiçult to x e why
thc same does tiot ayiply tci every other people in ihe Terrirnry.
'I'he Secretariat of the Econortiic Comniission for Africa, joinlly wilh the
United Nations Division of Social Developineiit, the Internat ional Labour
Organisation, ihc Food and AgricuIt ure Organizaiion, the World Healrh
Organization, the Intcmüiional Children's Ernergency Fund and thc Govcrn-
ment of Niger, sponsnre<: a Regional M t ~ t i n gon Yor~th Eiiiplnyiiient and
National Dcvclopmcn t in IYiarney, Republic of Kiger, from 21 to 30 May 1968.
The following are two of the coini in en dations adopted by the Meeting in
regard to edumtion and training:
"7. That the structirres of the primary school curricula in Africa should
be consistent wit h niodern social and ccununiiç rcquirernents. Significant
adjustinents, howcvcr. should bc rnade in the style of what is beiny taught
in order tu encouragi learning of, ,md sympathy with, /fie iwrion's CUI-
rural k~'ri10geand prruent-dny pol icy objeci ives. A /su, itiriirriui ~~ztrgkt
itz
o ~ i ~ s whrre ver pussihic, usr c~rrydnyAfricarz c,~atnples,and
c ~ u ~ s ~ u slioui~/,
give proportionate wcight to hi~t0i.yand geography relevant to Afrimn
çondit ions and aspirai ions. Although ihe curricula shoiild not he narrowly
vacational whcrcscho~ilgardcns rind school farrns and tiandiçrarr teaching
do exist, these shoulo cinphasize not anly current practices but alsv in-
novation or techniques.
8. That cvcry ctrofi lx made to bring modern ediicafive influences to
boys and girls whn dri not haSc the opportunity to attcnd forma1 class-
room schooling {in tàzr, the rnajorily of young people in iiiost coriiitriar).
Ln achicving tliis purposc, usc shoutd be made of mass media, siich as the
radio. with vertiuc.ri/ui-larl<~~age
pvesenrations. Fiil ler use should alw bc
made of familirir suci;tl and vocationa1 grouping; and ihe tnpics taught
should includc both r-ivics and rraiiiing in vocations '."
(Italicj adrled.)
147. l n South West Afriw considerable advance has hccn madc in ihe past
few y e m boih as regards the nunibcr of pupils, ieachets and schools on the
one hand and the quality and scopc of tlie tuitioit offercd. The fora[ number nf
pupils of al[ groups in priiiiary and se#ndars schools has incrcascd frorn
5R#û in 1960 ta 130,000 in 1970, 22,000 pupils bcing rroiii the White group
and thc rernaindcr from othcr groups. 'The nuinber of reachcrs Foi al1 groups
ha increased frorn 1 ,Y4 l in 1960 to 3,790 in 1970.
143. The opening or rh,: Augiistineuni High School, Teacliers' aiid 'Tech-
nical '1-raining Centre at Windliock carly in 1968 was a milestone in the histary
of educatioi~of the indige~iouspeqiles of the Territory. Sincc i t s rnodest be-
"Youtk Enipiqvmenf uf:d Natioital D~vetopi7irnr irr Ajricn". Social Welbre

Services in Africa, No. 7. i\ioven-i&r 1968, Unired Nat ions Sciçiai DeveIopinent
Section or the Ecrinomic r o r n m i s s i o o for Africri {doc. Ej'CN.141SWSAI7, pp. 35-36).
800 XAMInlA (SOUTH WEST AI'R~CA)
ginning in 1866 as a mission training %ho01 for te~cichers,at Otjimbingwc, the

Augustincurn has Wown into an cminent centre of educatianal and technical
training. It was established at Okahandja in 1922i1923.
Aparr frorn the modern training centrc at Ongwcdiva in Ovarnboland, to
which refcrsnoc is made below, the Augustineum is the most important edu-
cational ceritre for the indigenous çroups. Students are trained as teachers and
for varioils trades, whilt there is also a large hiyh school section.
The following ncw courses have k e n mminenced recently:
(i) At the beginning of 1969 ~ h ~ s i c Science
al was added to the curriculun~of
the High SchooI.
(ii) In addition to the existing Lower Primary Tciichcr's Courx, a new Pri-
mary léacher's Course has k e n introdued.
(iii) fn the technicaI rraining section a nioror ni:xhanic;il course was added to
the existing cour%%in rncial-work and joincry, laiIoring and gcncral build-
ing construction.
(iv) A special one-year course was insrituied to give inadequaieIy qualifieci
tcüchcrs an oppurtunity to becorne fulIy qualified in order to irnprove
the qunlity of ieaching.
Instructirm in indigenous languages kas also bccorne a feaiure o l the training
of tcachers since the beginning of 19Hl.
Tlie nuniber of studeiits of the Augustineuni has varied and in 1970 was
hightr than ever bcforc whcn 650 were cnrollcd. The annuaI figura are:
Year Srudenrs
19a.. . . . . . . . . . . . . . . . . . . . . . .259
1 9 6 1 . . . . . . . . . . . . . . . . . . . . . . . . 177
1962. . . . . . . . . . . . . . . . . . . . . . . . 170
1963. . . . . . . . . . . . . . . . . . . . . . . . 191
19M . . . . . . . . . . . . . . . . . . . . . . . 257
1965. . . . . . . . . . . . . . . . . . . . . . . . 306
1966. . . . . . . . . . . . . . . . . . . . . . . .400
1961. . . . . . . . . . . . . . . . . . . . . . . . 512
1968. . . . . . . . . . . . . . . . . . . . . . . . 432
1969.. . . . . . . . . . . . . . . . . . . . . . .442
1970. ....................... 650
The teaching star numbered 33 in 1970 as coinparcd wi th 23 in 1945.
Thc coIlege, with extensions was biril t at a cosr of R2.X million. The buildings
include: a hosteI for 700 stridrnrs; a highschovl fur about 500 piipils; a teach-
ers' training cenrre for abotit 150 studcnts; a technical and trade centre for
about 150 pupils; and a rnndern hall whjch accommodates abtiut 1.000 pcrsons
and which a n also serve as a gymnasium.
Adjoining the school haIl is an amphitheatre. These two facilitjcs are uszd
for film shows, church services and other sociaI occasions. The hasteIs pro-
vide accoinniodation for atl thc pupils attcnciing the sr;hociI.
The tquipment in the school is modern and adequate. Besides a weII-arrrüig-
cd Iibrary and science laboratory, a doniesiic science Rntre, a typing ronrn and
science Ieciure ruom, various tcchnical aids arc crnploycd. These include, itiler
soiind projccrors. tape recorders and overhead projeclors.
UI~CI,
Various types of sports are played, c.ç., rugby, soccer. tennis, athlelics,
boxing and hadniinion. The ncccswry sporis fields have beeii constructed on
the campus.
WRIïTtiN STATEMENT OF WC-TH AFRICA
The foIlowing are the rr:siills or examinarions in 1968 and 19G9:

Jmior Cc~rrificale
1968: 21 candidates: 13 first class passes; 7 second clriss passes; 1 failure.
1969: 30 candidates: 11 first cIaîs passes; 15 second class passes; 4 third
class passes; O failures.
Setlior Ccrlificars
1969: 8 candidates: 1 first class p a s ; 7 second class passes; O tjilures.
144. As frnm 1 April I!)69, tIic Ovarnboland Dcpartnient of Education and
Culturc hiis carried the re:;ponsibiIity for the control and development of cdu-
cation in thüt territory. 7'hc following tabIe iIlustrarm the progress made in
ediicatiw in Ovaniboland:
Total populatiun 1970: 344,000
145. Thc mGor portion of thc ncrv bt~ildingof the Onpediva rdticütional
and training institute conltructed at a cost olabour R4.5 miIIion hüs rcccntIy
k n taken into use. Thi.; is an impressive cornplex cornprisinç ,three insti-
tutions in one, narncIy a high schad, a tcirchcr-training centre and a trades
centi-e. Ongwediva caiers l'or an initial total of 430 students.
At present, the following courws are offered:
(Teacher Training)
E~~tirritiuiznf ,
L o w r Prjrnary Edtication Ckrtificatc 1; Lowcr Priniary Edüçarion Ger-
tificate Il; Pri~naryEdiiwtion Certifiate.
High Sciioiil
Forrn I; Foiorm I I ; Form III; Fnrm 1V; Form V.
Thc teaching staff nunibers 23 ai present, 11 of whom posscss-univer?;it~
degrees, 1 a teacher'ç depee in commerce, and the rernainder profcsuionaI
educational diplornas.
- The nçw tradcs centre ii,ill open in January 1971. The following courses wilI
bc introduced:
(i) Concrcting, bricklayirtg and plastering (two ycars).
(ii) Cal-pentry,joinery, and cabinet-iiiaking (two yearsl.
(iii) Pliimbing, seweragc: and sheetmeta1 work (two seai's).
(iv) Gcncral mechanics and motor mechanics (thrcr: years).
The above-mcntioned courses will bc aiigmcnted Iaitr un by an elcçIricians'
course and any oiher course for which the demand tiiay arise.
In 1969, 36 tcachcrs cornplctcd iheir training, and it is expected tliat in 197 1
thc çnrottnent for teacher's ti-aining will niore thüti double froni thc present
101 to 21 5. An iniliaI enrolment of 1 (Mi is expectecl for the new [rades school.
The nuii-iber of high schooI pupiIs is c x ~ c t c dto incrase lu 380' as corripareci
wiih 249 at piesent.
Tuition at Ongwediva is free. A voluntary rantrihutinn of 1<4 F r annuni
per pupil towards thc School Fund is, howevcr, payablc.
Nurnerous recreational aiid cultural üctivitics are offered to srudents, in-
cluding filn1 shows, drarna, niusic, debat ing, wri ters' and nther societies.
Sports faci lities include athltt ics, socccr. nct bnll. tcnnis, hockcy, etc.
Thc ciiiire coniplex at present coinprises the folIowiiig:
1 high schooI building with 15 classroorns and 5 lahratories;
1 training school building with 1 1 c~assroomsand 1 laboratory ;
I ad~iinsliativehlock containing library. offces. store rooms and 2 persunne1
offices;
6 hosrels with provision for 140 pupils cach (4 pcr ruorn);
28 fiouxs for siaff;
a kitchen and 2 dining halls.
The following are under construction:
a modern hall io accommudate 1,000 students;
a hall for arts and music;
4 workshups;
an administrative block for the trades schooI;
several spcwts fields.
Once larger nuinbers of teachers have'conipleted their training at Ongwe-
diva, it will be possible 10 realize ro the full rhe educationa1 programme which
envisages a junior wcondary school for cvcry cornniunity in Ovarnbuland.
Thcse schooIs will in the foreseeable future accommodate al1 F ~ r m1-III classes
so that evcntually only Forms IV and V will remain a[ Ongwediva.
146. In the Kavango with a total popuIation of 50,000 in 1970, education is
aIso making rapid progress. The enrolment of pupils increased substüntialIy
during the past fcw yean. Partiçulars are as foI10~j:
A, ncw Sccundary/Teachen' TrainingjVocaticinal Cetitre is k i n g mnstructed

as well as a hostel for 500 boarding students.
147. As regards the other indigenous peoples, similar progrcss has bccn made
in educatiûn with the partial cxccption of the Kaokotanders and the Bushmen.
As a result of their traditional iiomadic customs the Kaukulanders have *el-
ways viewed niodern education with indifference. I'ersistent efforts hüvc, how-
cvcr, b t ~ nmadc to changc liheir attitudes, and these efforts are now meeting
with succ~ss.About 400 pupils are now enr~IIedand i t is hoped that this figure
will stead.1~increase. ln tbe case of the nushmen the years of paticncc and
undcrstiinding which hüvc bccn applicd to ihis interesling hunter-peopIe bave
STATEMENT OF SOCTH A F R I C : ~
WR~I-{"EN 803
also brought soIne resulis . The nurnber of pupils hüs risen froni 20 a few years
agn to about 120 at prewiit.
148, A Languagc Burc:iu (which is assisied by cmincni authoritics on Af-
ricait Ianguages) was founded iii order to raisc the direrelit Africaii languaw
Io fiitt siatus as çchool, writtcn and cuIturaI langiiages and to provide sitfijcieot
schooI, sitbjcct and Iiterary readinp maltcr so tkat thc children have the op-
portunity of-
t u ) studsing theii oivn languagcs as subjects up to secondary and Iarer
up to uni~crsityIcvcI (the mother tongtie serves later as a univcrsity
entrance subject); aiid
( h l receiving their elementary educatinn t hrough the medium of their
own languages.
Aftet years of languag- researçh the Lirst offical orthographies in seven or
the indigenous Imgtiüges Iiave b e n puhIished. The second task i s to draw up ri
standardized series of reatters for cach of the languagcs, bascd upon the rnost
modern reading niethod~but at the same tirne üdapted to the individual clla-
tacteristics of each Iangu.~ge.The ftrst reading hooks are accon~paniedby
ffashcards for thc childrcri to use for word arid seniencc building and in ad-
dition by a set of large flashcards for the use of the teacher. The follou,ing
reading books havc appearcd in rhe langiiages indicated:
Ndonga: Sub A , Sub R, Sld. 1and Std. 111.
Kwanyarna: Siib A, i:ub B, Çtd. I and Std. III.
Hcrero: Sub A, Suh 13, Std. 1 and Sld. II.
Kwangali: Sub A, Sub 3, Std. I and Std. iI.
Mbukushii : Sub A, Sub B,Srd. I and Std. II.
Bushnian: Sub A, Sul, LI.
The following publication:; will appcar in 1971 :
Ndonga: Std. 11 Keaiier: Std. I and Std. II Arithmctic books.
Kwanyarna: Std. 1l Pcadcr; Std. Land Std. II Arithinetic books.
Herero: Std. I and Std. TZ Arithmetic books.
Kwançali: Std. I and Std. U: Arithmetic h o k s .
Mbukushu: Std. r anai S t d . 11 AritIinietic books.
Nama: Suh A, Sub I!, Std. Iand Srd. II Rcaders (Sub A and Sub B will
aIready tie in use ir, 1471) and the Nama Orthography.
It is planncd to tsckIc i he production or a Iat~guageseries for eacIi of the
Ianguages in 197 1. The initial u~orkhas aIready been compleicd. These "gram-
mar hooks" are drawn up atony modern Iines and are Iinked to the reading
series already publishcd.
The purpose is that for at le as^ the firsr few school yearç Che chiid should
receive instruction througIi the medium of his mothcr tonguc.
Eriglish and Afrikaans iirc offcred as subjects froin the very beginning and
ihe change-over to tlie foreign languagt: as medium of instrirction occurs at a
stage when the pupil has tnecomethoroughly accustomcd Io it.
149. In Annex C (pp. 112-1 15) extracts wrei.e furnished fronl the prcscribcd
syl ta buses of the educatiorial authoritics of the developing peopjes fo illustrate
what are considered to be stiitable standards in a nurnbcr of subjecis such as
Arithmelic, Gcncrül Scicnce, Physical Science. Riology. 'Typewriting and
: Not reproduccd.
English. Tlie following extracts, alsa frrini the prcscrihed syllabuses, illustrate
ihe objtcts iind m p e of itaching in stibjects of a more practical nature. For
instance, the aims of agticuIturü1 teüching are statcd as follows:
"ru) :O fostcr a lovc for [hc soii, plants and animuIs;
( b ) .o develop the correct attitude towai ds agricul turc, rvhich provides
o r rhe comrntinity a%a whole;
(c) .O study thc application uT scientitic principIes 10 agriculture;
(clJ .O enable püliiis to g a i i l esperience of practical agriculture which
:bey may piil IO iiw in Iater lire, even if onIy to a Iimited exteiit
.n their homc gsrdcns."
The preicri bed syllabus deals wit h tlie following suh-divisions: soi1 science,
plants, fruit gruwing. agronorny, foresiry arid animal husbandry. These sub-
jecrs are fiirther subdivided inio nunierous i-elated disciplines in order to
bring homc lu the agricultriralist the importance of practising the best methods
of tilIing tlie soil, raising crops and brccding his animals. For instance the
stiiùy or plants in Forms I I and ICI comprises:
(1 j Coniposition of'p/ri~!s
Warcr. organic matter {carbohydrates, fats, protein), minerais, or ash
constitucnts.
(2) Reqirircninrrs for norttrni gmwrh of pionrs
(a) Air, light, wüter. temperarurc, abstnce of harmfiil su bstanws.
(b) Kutrients:
(i) Ten macro-elements,
(ii) Micro-clcmcnts.
( a i 'Slie influence of nitrogcn, phosphorus and poiash on plant growlh.

(6) Siipplementing planr nutrients wjth:
(i) Natiiral or organic fer!ilisers like compost, manure, green-manur-
ing.
(ii) The value, use and effect of orgrinic fcrtilisers on soi! and ptani
growth.
(cl Artificial fertilisers. Properties, the inRuence on plant growth and the
uses of two fertilisers from each of the frillowing çroups:
(i) h'itrosn: Sulphate of ammonium, lirnestone amrnoniunl nitrate
{nitromonml) ; urea.
(ii) t'hosphatc: Supcrphvsphiitc, supcr rock phusphatc, rock phos-
phate.
(iii) Potash: Sulphate of potash (potassium suiphate), muriate of
potash (potsusium cMoridc).
(dl FcrtiIiser mixtures: advantagcs and disadvantagcs.
( c ) EkTccts of agricult~rallime o n soil.
(f] Watcr supply and irrigation rncthods:
(i) Flooding rnethod.
(ji) Chess board ntethod or furrow method.
f i ~ i ) Spray irrigation.
Advantace and disadvantagcs of eüch mcthod.
(4) Praciical wurk and riet)?nns~rniions
{nj Which reqüirements are essentiaI fer grinination and which for
normaI growth. (€las$room experintent.)
WKi'rI'EN STATEMENT OF SOUTI I AFRICA 805
( h i Fertiliser tests to show the influence of riitrogen, phosphoru and
porash on difkrent çrops in the sçhool garden.
{ c ) Dcmonstratc the iritluençcof agricultural lime on soi].
150. Animal husbaridry indudes, infer rtliu. a study of the following:
( I) Fccdi~if#J~ ~ ~ ! l t ?
( a ) Elementary discus;ion of arirnefitary canal uf a ruminant.
( b j Food nutrients:
(i) Water, füi. carbohydrates, proteins. mincrals, vitamins.
{ii) Functions of ihese wnstitucnts in the animal body.
(iii) Main sources o f each iiutrient.
(c) Roughage :
(i) Katural grazirig: su~eetveld,sourvetd, etc.
(1) Valuc of i;.nd deficicn~~x in vcld grazing.
(2) Control or' veld grüziiig.
(ii) Fodder crops suitable for grazing, hay and silage.
(iii) Prciperties ancl value of good quality hüy and silagc.
(iv) Foddcr crops rich in carbohydratcs 2nd proieins for hay and
silage iiiakinç.
(dl Concentrates:
(i) Concentrates ;ich in carbohydrates.
(ii) Conçentriites ;ich in plant and animal protcin.
(iii) Important reiltiirerncnts for cnncentrate mixtures (ma1 niix-
tures) with rcrgrd to its carbuhydrate, protcin, fibrc and minerai
content.
(iv) Ilalancecl ratLjris; main requirernents for the composition of a
biilanccd ration which incIudcs graziny, hay, silügc and con-
centrates.
(v) Minerül licks.
Cl) Br~irymrif~
(n) The main differcrices betwwn three important dairy broeds with
respct to general appearancc, milk p r d u c t i o n and hutterfat contcnt
of milk.
(5) Typical characteristics of a guud dairy cow.
(c) Feeding of dairy ciiws:
(I) Food required for fiinciions like maintenance of growth, production
and reproduction.
( i i ) Feeding accorcling fo production.
(dj Protection of dairy cows against ticks.
(rj Injurious effecrs of ticks on cows.
(j, Methods to contra1 ticks.
( 3 ) Drriryitig
(n) Thc conipositinn and nutritiond valuc of fresh milk.
(hj IIygietiic prodr~ciicno f rnifk:
Ci) Causes of mili< contaminatiun: Milkcrs, coivbyrc, food, dairy
scullery, dniry i~tenjils,waier, Ries, etc.
(ii) Diseases transrnitted through milk.
' { c ) Causes of tainting 2nd odours rorrning in milk; the prcvcntion thermf.
[d) Factors to be considered whcn storing nii1k.
XXI. Heulrh Ser V ~ C C II
151. In 1969/1970 current expenditure on hea[th services in South West

ATrica amaunted to K5.84 niiIlion. as cnrnpared wiih It1.99 million xven
ycürs earlier. of which 74.5 per cent. w a cxpended on khatf of thc non-
White population gruups fs aagainst 25.5 pcr mnt. fur the White group. Capital
expenditure in I969j 1970 amounted to K 1 . 1 16 miIIion of which 87.5 per cenr .
was dcvotcd to racilitics for ihc non-White grt3rtlirps as against 12.5 pcr cent.
for the W h i t e group.
The 196!J/IY70 level of official expenditure on health services represents a
per cnpita outlay of about R9.3. ComparabIc figura for thc othcr Africiin
countries for the saine y a r aie iiot available, but the following table basrd
on budget figures provides a guide tu expcnditure on hcaIth xrvices in a
nuntber of thow ccountries:
A~imitii!cott-
Per rupiirr
Yeur Airinunr in vertet1 iirm
Puptrirr- Carrrrncy
niilfiun Sunlfi /i/ri- '.Y~'tzdif"re
Cuunf r j m
endcd riori A (f.@H) in
01m i r c m Raird
nrilliun
Eihiopia June 1968 24,212 EihiopIan 23.W 6.93 O.29
dollars
CiIiatla nec. 1968 8,376 2 1.50 15.27 1.82
Dec. 1969 8,600 NewiCedis 19.30 1 3.71 1.59
Kenya5 June 1968 10,209 Pot~ntIs 5.13 10.26 1 .O0
Junz 1969 10.506 6.1 1 12.22 1-16
Liberia Dcç. 1968 1,130 Doll:rrs 3.40 2.45 2.17
Sudan Junc 1968 14.770 Pounds 5 -54 1 1.47 0.78
TanzatiIa June 1968 12,590 Shillings 7.02 8.25 0.66
Jitne 1969 12.926 77.03 8.47 0.66
Togo Rec. 1968 ' 1,769 CFA Francs 558.40 1.68 0.95
Dec. , 1969 1.815 507.70 1.52 0.84
Uganda Junç 1968 8,133 Shillings 91.67 9.17 1.13
lune $969 9.500 t t0.51 11.05 1.16
biiited Arab Jan. 1968 3 1,693 Pouiids 32.90 53.96 1.70
Rzpriblic Jan. I969 32,501 68.90 1 f4.37 3.52
' I'irir Annçx A , pp. 121- 1 32, and Annex C,pp. 98-1 05. !Nor reprndircrcf.!
United Nations S~nristic~zl .
Ycarbnok 1969, uhlr 19 t pp. 590-607.
' Unitcd Ma~ario#isMunthly Bidktin ufSiati~rics.Sep. 1970, tabIe 1, pp. 1-4.
+ Forcigii ctirrcncics conserted into South hrrican currency (Rand) in tcrnis of
rates of cxchangc g ~ v c nin Uniird h'ofions MnnrRljmBulierin of Srarisrirs, Sep. 1970,
pp. 200-201..
Acçcircling Co econornic and funct ional classificatiun of guvernmenI expendit ure.
(b) that even if this resolution, or Sccwity Council resolution 276 (1970):
can be regarded as emhodying a valid recommendation addrcsscd to
South Africa, thcrc arc cornpelling reasons wliy the Souih African Govern-
ment rn ~ s decliiie
t to give effect thereto.
WKIT'TfN STATEMENT OF SOUTH AFRICA 811.
Thc above exposition of the facrual sirusition in South West Africa has shown
the vast progress that, despite adverse conditions, has been made in the politial,
eçonornic and .social lifc of the Tcrri tory, and the high standards rhat have h m
attained. In the coniext. that survey has served 10 dentonstrate, it~teralio, that
rriajorities iit Ilnircb h'atiotis organs have rnisconceiiledor niis-staied conditions
in the Territory, whether from ulterior motives or purely by reason of Iack of
knowledge.
The photographs reproditced in the prescnt Smtiun art: intended to illustrate
graphiçally what has already bccn statcd verbally. They arc prwnted jn rhe
full knowInlge that any selecrion of photographs, particurarly in black and
white, can givc but an kadequate impression of the unique and coIourful
physical and human features of thc Tcrritory.
This Seclion is tu be rregirrded as supplementaty io the photographs iincludcd
in the Sowh West Afr~caFtlr~ey1967 which iu annexed to this Chapter. For
thar reason the present seIs:ction of photographs d m s not purport in a n y way
to cover al1 important aspixts of life in the Terrirov. It is daignedly conccn-
trated on a relatively small number of katurcs which were chosen either &-
cause they represent new riewIopments, or because they arc considercd to be
of particular significance or interest.
Despite its unavoidabic limitations this Scction mighl, it is hvped, never-
thcIess i
x of some assistance to the Court by providing a glimpsc of the realitis
of South West Africa.
INDEX
Governmen t and Administration :M i reprurlu~edj
Occupations and In-Servici: Training (Nut rcproducedj
Busincss Activity / Nat rept*oduced]
Water kveIopment [Abr reprodüred i
Hoiising j Nor reptoditcedj
Koads and Transport [Nui repruducedi
Posta1 Services and Telccuinmunicatioris[Nor reproclltcedj
Ediica t ion / Nor reproducea]
Heafth and Mcdicai Servici:s [Nol rcprod~ired;
The Land and Its People [.Var r e p r d ~ ~ c e d ;
No: reproduced.
Sortrit W c ~Afrirrr
i S u r t q 1967
pt~bkishcdby the Deparitiient of Foreign AKairs of the Itepublic
of South Africa, Marcfi 1967
Annex B
Reporr of the United Nrttiotis Council jbr Soiiik West AJricu
(UN doc. AiG897, I O Novetnber 1967)
J Nul reprndut:edl
Annex C
South A,(ricu'.s A~piifvIO the Secrerary-Cenerai
uf the t/triteti Nu1iun.v (Secri rit y Cou iici l , .
, Itesolution 269 of 1969) . -
.
publishod by thc Dcpartment or Foreign Aflairs of tlie
Republic of South Africa, Scptcrnber 1969
WRITI-ES hTATEMEYT OF SOUTH AFRICA
T.4BLE OF CASES CITED
1. Siiifiis of E u s f ~ r nC i l r d k , Advisory Opinion, 1923, P.C.I.I., Scries 3,No. 5 ,

pp. 27, 28, 399, 452-453.
2. Mavrornrmris Pak.rtitic C~ricessions,Iu~Igtneti!No. 7,1924. P.C.I.J . , Series A ,
No. 2. p. 11 .
3. C~rrniiiGermnn Inierc~tsiti Po'lliisii Upper Silesicl, Jurisllictioit, Jltdgtn~nz
,%'o. 6, 1923, P.C,'.i.J., Scrie.7 A , :%. 6, pp. 14, 22.
4. Itiierprerniiun oj' Arficlt 3, Parafrapii 2, of the Treary ojlor~saiws,rldinisory
Opinion, 1925, P.C.I.J., Scrirs B, No. f 2, p. 77.
5. Jnrisrlicriuti of rile Eurcpeuii Corriinissiun of f/!e Danube, A rlvi~oryOpinint i ,
1927, P.C.I.J., Series 3,No. 14, p. M.
II. I r r ~ . u ~ ~ n oCOURT
? ; a ~ OF JUSTICE
A. Jiidgirtenrs, Advisory 0,~iriinnsc~iidOrders
.
1 Corfu Chc~niiei,PreIinziizary OlijFctÏoi~,J~idgnreti!,1948, I.C.J- Reprrs
1947-1948, p. 15; ai pp. 31-34.
2. Cu/?diriot~s of Ahri.< ion oj'(z Stuie IO ~Me~rlhership iiz the Unitcd ~L'uriuns
(Articie 4 of CIuirrra.j,Advisory Opinion, 1948, i.C.J. Reports IY47-1948,
p. 57; at pp. 61. 64. 85. 87.
t s p. 4; ai p. 60.
3. [:orfi C:Ironnei, Merirs, Jitdgtgrntnt, LC.J. ~ r ~ o ;1949,
4. Repnrdiun fbr hrjui-ies Suflercd in the S e r r i c ~of' thr United ,%tiom,
Advis0r.v Opinion, 1:F.J. Rcporrs 1949. p. 1 74; ai p p. 198, 205.
5. Conigrrrnrr nf ihr Genernl Asseitibly Jor ~ k eAdniissim of n Stnre to f h p
U t ~ i f Nations,
~d Advisory Opitiioii, 1.C.J. Reports 1950, p. 4 ; at pp. 6-7,
?7
LI.
5. fn~~rprefaiinn of' P e x e Trearies ivitlr h'ul'~~uriu, aad Romutria,

Hi~~rgnry
Firsf Phose, Adsisur.i Opinion, 1.C.J. &ports 1950, p. 65 ; at pp. 71, 72.
7. Interitationnf Sinrus of Soufh Ivrsr Africn. Advisorv Ooinirin, I.C.J.
8. lrrf&prcratiart of Pc.~ceTrrotie.~with Btllgaria, Xungary unri Romania,

Srlrnnd Pliu.r~,Ad~+i.mry Opîtziut~,1.C.J.Reprt.7 1950, p. 22 I .
9. Altibnrie/us, Prelimirzciry Objection, Jftdgrnmf, L C.J. Reporls 1952,
p. 28; at p. 54.
III. Vofing Procedure o,r Questions reioling la Reporls and Peti~ionrcotz-
cerizit~gthe Terriiurl; uJ South West AJri<:a, Advi.~oryOpinion, I.C.I.
Reports 1955, p. 67;ai pp. 75, 76,-85186,88, 99-101, 115-1 16, I 18-1 19.
1 1. Adttiissihiliiy o f He~ritwsof Pe~iiiotiersfiv t h Comnrifiee on South West
Afiic'n, ~ & f s t i ;~~~ i r r & n.c.J.
, 1 . r - p. 23; at pp. 27, 28, 29,
~ ~ ~ o r 1956,
30.33. 65-66.
12. ~ u d f m e t ~o
rfs ~frcAdwiinislrclrii~Tri!>unrrl of the IL0 ripmi Cunipbirrfs
iMude r~guitisr Cltiesb:.c>,Ad11isor.v Opinion, 1.C.J. Repurrs 1956, p. 77;
at pp. 84, 86.
1 3. High; of i3ci.ssogen v u Itiriiutz Territory, Merits, Judgnrrti~,1.C.J. Reports
1960,p. 6 ;ai p. 37.
14. Certain E-~pcnses5 j t h Uf~ifed,V~riotrs(Article i7 , purrt~raph2, of the
CfiorrerJ, Adrisoyv <)pir:ivrr, I,C.J. Hrpnrfs 1962, p. 15 l ;at pp. 155, 156,
814 NAM18IA (SOUTH WEST ATRICA)
153, 168, 175 et.req., 182, 184, 189, 190-191,192, 196, 198,201-202, 217.
230. 233-234, 236, 250-251, 253, 268, 288. 291, 292, 295. 304, 306, 319,
320, 391,403.
1 5. Souii~Ivesr Africu, Preliniitrc~ryObjeciiuns, judginent, 1.C.J. Reports iY62,
p. 319; at pp. 331-334, 336-342, 345,346. 354, 358, 352, 364, 365, 391,
412, 413-414, 436, 444, 445, 514, 516, 520, 532, 5.35, 536, 537-540,b(K1-
610, 6 1 5 et sry., 640-653.
16. Barcc/ofrn Traclion, Lighr orid Powrr Compnny, Li~iitccf, Pr~liiniriarj
Ohjecrions, judfnient, I.C.J. Reports 19154, p. 5 ; at p. 140.
17. Soufti West AJrirrr, Sei:onri Plzuw, Jri&tnt.ni, I.C.J. Reports 1966, p. h ;
at pp. 23-25, 79,36, 44, 45-51, 82-137, 182, 705-213, 217-219, 235-238,
243, 245-246, 274-278, 320-323, 326, 330, 331, 337-342,344-345,347,
350-356.389, 397-403. 406, 450, 456,458, 460-461. 470-471,490, 505.
18. h70rrk Ses Cunrikniai Sheif, Judgmcnf, I.C.J. Reports 1969, p. 3; a l
pp. 3, 25-26, 42.
B. Pieudings
Slnriis of South West Afiricn. pp. 1 22- 1 23,
1. J.C.J. PIcadings, It~rrrna:iorra~
148.
2. I.C.J, PI~udiizg~-,Sou!h West Afr-icrr,
Vol. 1. pp. 67-89,118-183,312-350,364, 376 el scq., 429,443-449,452-453;
Vol. Il, pp. 24-32,97, 102, 141-148,152, 155-163. 165 ei s ~ q . 175
, et srq.,
193 er seg., 289-380, 431-433, 444-445. 447-448, 413-474,50-527;
Vol. IV, pp. GO, SOI,464;
Vol. \f, pp. 5-1 1 ;
Vol. VI, pp. 255-266;
Vol. VQ pp. 37-52, 57-63,67,97-99, 304-308;
VoI. V CI[, pp. 132, 225-226, 468 ri sel]., 547-552;
VoI. fX, pp. 2L, 235;
VoI. X. pp. 367-3618;
Vol. XI, pp. 585, 507-588;
VciI. XII, pp. 110-124, 129-131. 142-153.
3. I.C.J. Picadings, Certain Expen~esof (Ire Uriifed !Vulions (Article 17,
p~rr~rraph 2, of ~ h Churtrr),
r p. 403.
1. Rex u. tl/oin, 1939 A.D. 188, at pp. 202-203.
1. Erkrrsfe.~ and Others v. The Alersc,~Docks and H~rhourBwrd, 1 894 2 Q.B .,

at p. 671.
2. Aliitzsoii V. C;Ptwru/ Cuuncil oJ ~Wedicolfifricatiutz arid Regisrrnfioit, IR94
1 Q.B., :iip. 759.
LIST OF THE. RELEVANT DOCUMENTATION
A. Kecord~oJ fjie nss~mbiy,Sess. 1, 1920, p. 320.

B. Officiai Journal, 1920 (No.61, pp. 334, 335, 338, 339, 340-341 ; (Ku.8).
p. 87; L921 {No.I), pl). 11, 12, 89; 1921 (NOS. ID-LZ), pp. 1 124-1 125; 1922
(No.8, Part Ii), pp. 849-850,854; 1923 (No. 3), p. 300; 1927 (No.4), p. 348,
C. O#icÙzi Julu~lrnu/.Spêci,zi Suppittrzerir, No. 194, 1946, pp. 28, 32-34, 43. 47,
58, 59, 76, 78, 79, 2W.251, 278-279,281.
D. Minti/es of the Per~na~tcnr r%fat&tes Cornmissi~n,Scss. 1, 1921, pp. 5 , 1 7 ;
Sess. V, 1424, pp. 155, 177-178; Sess. VITI, 1926, p. 200.
E. Orher
I . Tlrr {.O ruenanr of the Leugrte oJ :hhtiotis.
2. The tengue Hund~G ver (Ceneva, 1946). pp, 61, 63.
3. 21st Assernhly, 1st Cornmittee, 2nd Meeting, provisional record (un-
piibl ;shed).
4 . The Matidales Sys f ettt-Oribriz-Princii~Ie.~ - -App!iliation (Gencvü, 19451,
p. 35.
5. Leagile oc Nations. Dm.C.5M.5, 1947: Report of the Bonrd ofiiquida-
iim?,pp. 20, 27.
A. Duciiit~~nts of the Utti~edvarions Conferencr oii tnreriia!iuntrl O r p i z a t i o n ,

San Frnr~cisco, 1945 {Londnn]New York: Cnited Nations Information
Organizations, 1945). Vol. 1, p. 530; Vol. III, p. I l ; Vol. V, pp. 300, 315-
316; Vol. VI, p. 447;'fol. VlII, pp. 32-33, 145 ei scq., 208; Vol. X, p. 434;
Vol. XI, pp. 84, 327, 381, 393, 43Ib550, 704, 710-714, 767, 781 ; Vol. XIT,
pp. 9, 15. 16, 32,48.0(#,162, 284. 380. 501: Vol. XIII. pp. 71)9-710; Vol. XV,
pp. 70,73.
B. UNITEDNATIOSS PK~PAKA'TORY ~OMMISSIOS, 1946
1 . Cornmittee 4 , Sirntr.ra~'yRecords, doc. PCiTC12, pp. 2-4. 5 ; I3C/TC14,

p. 7 ; PCjTCi 1 1 ;I'C,'rC!24 ; PCXCi25 ; PCfTC/30; K/TC/31, pp. 2 1-22;
PC!TC/32, p. 25; PC:/TC/33; PC:/TC'/42, pp. 39-40.
2. Cornmi ttee 7,h?rtttit,7ry Records, duc. PC;LK! t , pp. 2-3, 1O-1 1 ; PCiLNJ2,
p. 2; PC)LN/lO. pp. IO-II.
3. Jo~w?FQ/, pp. 125. 13 1.
4. Dot. PC:IEX]1 131Rcv. 1, 17 Novcmhr 1945, pp. 1, 7-8.55-56, 108-111,
114, 133-134.
5. Doc. PC!EXj9t/Ad(l. 1, 14 O c t o k r 1945.
ri. Dm. PCjEXi107, pp. 9-13.
7. Duc. PCj20. 23 D e o m k r 1945. pp. 49, 118.
C. GE'IERAL ASSEMBLY
1. Rrsoitliions
XI (1). 9 Fehruary 1'346, in U N dm. A:64, p. 13.
XIV (11, 12 February 1946, in Uh' doc. N64, pp. 35-35.
65 (I), 14 Dcccrnber 1946, in U N dm, Ai64:Add. 1, p. 123.
141 (10, 1 Novernbr 1947, in U N doc. A;S 19, p. 47.
816 N~UIBIA (SOUTH WEST AFKICA)
727 (UI), 26 h'ovenibcr 1948, in UN duc. hi810,pp. 89-91.

267 (UT),14 April 1949, in GA, UR,TIiird Sess.. Part II, pp. 7-1 0,
396 IV), 14 Deccmber 1950 in GA. OR, Fiflh Sess., Sup. No. 20 (A/ L7751,
pp. 24-25.
13fiIi (XlV), 17 Kovember 1359, in Gd,OR,Fourteenth Sess., Sup. No. 16
(A/4J54),p. 29.
1514 (XV), 14 Decemher 1960, in G A . O R , FiReenth Sess., Sup. No. 16
(A/4684), pp. 66-67.
1565 (XV), 18 Dcccrnbcr 1960, in GA, O R , Fifteenth S a . , Sup. No. 16
(A/4684), pp. 3 1-32.
1567 (XV), 18 December 1960. in GA, OR,Fifteetith k s . , Sup. No. 16
(A/4684), p. 32.
1563 (XV), 18 Decembei 1960, in GA, O N , Fifteenth Sess., Sup. Na. 16
[A/4684), pp. 33-34.
1593 (XV), 15 March 1961, in GA, OR, Fiftcvnth Sess., Sup. No. 16
(A145841, p. 7 .
1702 (XVZ), 19 December 1961, in GA, OR,Sixteen th %S., Sup. No. I7
(Al5 IO@, pp. 39-40.
1703 (:Y VI), 19 Deceirikr 1961, in Cd, 0R, S i x t ~ n t hSess., Sup. No. 17
IAlSlW), pp. 40-41.
1805 (XViI), 14 necernber 1962, in GA, OR, Seventeenth Sess., Süp.
NO.17 (A/5217), pp. 38-39,
1979 (XVIIT), 17 Dccemher 1963, in GA, OR. Eightccnth Scss., Sup.
No. 1 5 (Aj55 151, p. 5 1 .
2074 {XX), 17 Deccmbcr 1965, in G A , ORr Trten~iethS m . ,Sup. No. 14
(A1603 4), pp. 60-61.
2145 @XI), 27 October 1966, in GA, OR,'henty-first Sws., Sup. NO. 16
(A!6316), pp. 2-3.
2248 (S-V), 19 Ma): 1967, iii GA, OR, Fifth ~ p c cScss.,
. Siip. No. 1 (A!6657),
p. 2.
2324 (XXII), 16 Dcccrnbcr 1967, in GA, OR, Twenty-second Sess., Slip.
No. 16 (A16715). pp. 3-4.
2375 {XXU), 16 December 1967, in GA, OR, Tweiity-second Sess., Sup.
No. 16 (A/6716j, p. 3.
2372 (XXII), 12 June 1968, in GA, OR, Twc~tty-sccondS a s . , Sup. No. 16A
(A!f,71@Add. 1). pp. 1-2.
2403 {XXUI), 16 DLwrnbcr 1968, in GA, OR, Twenty-third Sess., Sup.
No. 18 <A[fZI8),p. 3.
2498 (XXIV), 31 October 1969, in GA, OR, Tir~ei~ty-fourthSess., Sup.
No. 30 (kf7630}, p. 655.
2517 fXXIV). 1 Dccember 1969, in GA, OR, Twenry-fourth Sess., Sup.
No. 30 (A/7h30), p. 68.
2. P h r y Meetings
(a) Ojïciui Recurds
G A , OR, Firs~Scsu.. Firsr Part, 1 1th PIenarq- Meeting, pp. 166-167;
121h Plcnüry Meeting, pp. 185-186; 14th Plcnary Meeting, p. 227;
1 5th I'lenary Meeling, pp. 133,238; 16th I'lenary Meeting, pp. 201,251.
G A , OR, Sccond Scss., Vol. 1, 1Mth Plenary Meeting, pp. 573-574,
577,58 1,589,632 el sey. ;G A , O R , Sccond Sc%,, Vol. 1, 105th Plcnary
Meeting, pp. 591, 595, 598, 602, 604-606, 61 1 , 614, 616, 617, 621-622.
626-638.449.
W H I T K K . S i A l EMEYT OF SOUTH A R I C A 817
GA, OR, 'I'hirC Sas., Part 1, I a i h Plenary Mecting, pp. 577, 579,
582, 586.58P590.
GA, OR, Fourth Sess., 269th Plenary Mcctinp. pp. 523, 528-531,
533-537.
GA, O R , Fifieenth Scss., 947th Plenary Meeting, pp. 1771-1784;
954t h Pleiiary Mi:eting, p. 1388.
GA, O R , Sixtc:nih Sess.. 1020th Plenary Meeting. p. 177; I037rh
I'lenary Mocting, pp. 459, 460.
GA, OR, Sevenreenih Sess., 1128th Plcnary Mceting, pp. 72, 73;
1 143rù Plenary Meeting, p. 345.
(2. OR, Nineteenth Sess., 1280th PIenary Meeting, p. 7; 1296th
PIenary Meeting, p. 3; 1298th I'lenary Mccting. pp. 15. 405; 1300th
PIcnarv Meeting, pp. 13, 20; 1304th Pleiiary Meeling, p. 3; 1306th
Plenary Meeting, pp. 9, 1 1 : 1308th Plenary Meeling, p. 14.
GA, OR, Twciitieih Sess., 1339th I'lenary Mccting, p. 2; 1360th
Plenan, Mcering, p. 4; 1385th Pkcnciry Meeting, p. 8; 1388th PIenary
Meeting, p. 1 7; 1389th Plenary Meeting, p. 12.
G A , OR, Twe~ity-firstSess., 1412th Plenary Meeting, pp. IO, 15;
1414th Plenüry Meeting, pp. 3, 5,8,9, 10, 14, 1 5 , 2 4 2 5 ; 1417th PIenary
Meeling,pp. 1,2,4-8, 10, 12, 13, 15, 15, 19-21 ; 1418th I'Ienary Meeting,
pp. 2,3; 1419th Plenary Mtrting. pp. 1, 5, IO, 13, 25; 1420th PIenary
Meeting, p. 12: 1422nd I'lenary Mccting, pp. 14, 15; 1423rd Plenav
iMeeting, pp. 6, 3 ;1425ih Plenary :Meeting, pp. 1, 7 , 4, 6, 7, 9. 12;
1427th Plcnary fiieeting, $. 4, 5. 7, 4, 11, 14, I 8 ; 1428th Plenary
Meeting, pp. 4, 8 . 1429th Plenary Meeting, pp. 2. 3, 5-7, 11. 13, 15-L7;
I431si Pltnary Mcct~ng,pp. 1, 7, 3, 5. 8, 9, 13, 14, 15, 16, 24; 1432nd
Plcnary Mccting p. 12; 1433rd Plenary Meeting, pp. 5, 6. 9, 12;
1434th Plenary Sfeeting, p. 9; [435th Plcnary Meeting. p. 12; 1437th
Plenary Meeting. p. 5; 1438th Plenary Meeting, p. 3; 1439th Plendry
Meeting, pp. 1 , 4, 5. 8, 12. 17. 21-73; 1440th Plenary Meeting, pp. 3,
16; 1441s: Plenai y Meeting, pp. 17, 18. 19; 1443rd PIenary Metling.
p. 13; 1445th I'Ieiiary Meet~ng,pp. 2, I I , 17; 1448th I'lenary Mccting,
pp. 1, 2; 1449th FIenary Meeting, pp. 4, 6, 7,8, 14, 16; 1454tli Plenary
Meeting, p. 15; 1456th Plenary Meeting, p. 3.
(b) Provisiutzcri Records
UN duc. AIPV. 1625 (1 1 Docernber 1957). p. 47,
U N doc. A!PV. 1627 (1 2 Deccrnbcr 19671, pp. 87-87, 91, 92, 93-96,
UN doc. A'jPV. 1678 (1 3 Deceniber 1 %7), pp. 7, 13- 15, 31, 32,
UN doc. AjPI'. 1632 (14 Decembcr 19671, pp. 36, 37, 38, 34, 40,
89-90,
UN doc. A/PV. 1635 (1 6 Decetnber IY6?), pp. 97-96,
UV duc. AjPV. 1730 (29 November 1868), pp. 17. 22.
U N doc. AjPV. 1819 (1 Ekcemkr 19691, pp. 24-25.
3. Ad Hoc Pdiricni Co wrriifree Meering.r
GA. OR,Third %;S., Part II, Ad floc Pol. Comm., Summary Records of
Meetings, 6 April-IO May, 1949, 47nd Meeting, pp. 181-182.
C A , O R , Third Sess., Pari II, Ad HOCPol. Comm., Surnrnaq Records
of Meetings, 15Novcmber to 9 December I948,43rd Meeting, pp: 197-193.
GA, OR, Fifth Sefs., Ad Hoc Pol. Ccimrri., Summary Records of Meet-
ings, 3OSepternber tri 14 December 1950, 18th Meeting, pp. 1I I . 112, 116;
191h Meeting. p. 121; 23rù Meting, p. 15%; 24th Meeting, p. 159.
81 8 NAMIBIA (SOUTH WEST AFRICA)
4. SpeciaI Poliricd Commitrce Mceririgs

GA, OR,Twelfth Sess., Spec. Pol. Comm., 56th Meeting, p. 71.
GAl OR, Seventccnth Sess., Spec. Pol.Comm., 328th Meeting, p. 1.
5. Titird Cooni~itizre~
Meerili~s
G A , OR, Third Comrn., 1382nd Meeting, pp. 2 , 3 5 , 31; 1383rd Meeting,
p. 45.
6. Foiirlh Cotnmiiree hfeeiings
(a) OffLciulR~cords
GA, OR, First Scss., First Part, Fourth Comm.. 3rd Mecting, p. 10.
GA, OR, First Sess., Secnnd Part, Foiirth Comm., 19th Meeting.
Par1 1, pp. I01-102, 239.
G A , OR, First Sess., Second Part, I'ourth Comrn., 5th Meeting,
Part Il', p. 28.
GA, OR, Seçond Sess., Fourth Cornrn., 31st .Meeting, pp. 3-9;
32iid Moeting, pp. 9-13; 33rd Mecting, pp. 13-18; 38th Meeting,
pp. 45-47, 49-52; 38th Meeting, pp. 55-58; 40th Mwring, pp. 59-66;
44th M t ~ t i n g :p. 90; 45th Mwlinp, pp. 93-96;47th Meeting, pp. 105-
106.
GA, OR, Third Sess., Parr I, Fourth Comm.. 76th Mceting. pp. 287-
288, 292, 294, 296-297; 77th Mceting. pp. 297-300; 78th Mccting,
pp. 307,308 etseq., 314,31.6,318;79th Meeting, pp. 320-322,324, 325;
80th Meeting, pp. 328, 335, 337;'81st Meeting, pp. 340, 343-34, 346,
348,350, 35 1 ; S2nd Mccting, pp. 355, 357-360, 361-356;83rd Meeting,
pp. 367, 369-370,372; 84th Meeting, pp. 373-377.
G A , OR, Fourth Sess., Fourlh Comm., 128th Meeting, pp. 193, 200,
203,208; 129th Mccting, pp. 208,210-212; 1.Wth Meetitig, pp. 21 3-219;
131st Meeting, pp. 219-223 ; 132nd Meetrng, pp. 213-224.226-229, 288;
133rd Meeting, pp. 230-234; 1341h Meeting, pp. 235-242; 135th MH(-
ing, pp. 242-244, 246-248 ; 136th Mccting, pp. 749-754; 137th Meeting,
pp. 254-258; 138th Meeting, pp. 265, 267; 139th Mccting, pp. 268-272;
140th Mt~ting,pp. 273-281; 141st iMeeting. p. 282.
GA, OH,EIcvcnth Scss., Fourth Comm.,57 1 st Meeting, p. 1 1.
GA, OR, Fourteenth Scss., Fourtlt Cumiti.. 909th Meeting. p. 136;
914th Meeting, p. 61.
C A , OR, Fiftwnih Scss., Fourth Conim., I05I)th Meeting, pp. 307,
303; 1052nd Meeting, PD. 311-313; 1053rd Meeting. pp. 317, 318;
1053rd Meeiing, p. 374: 1076th Meting. pp. 456457.
GA, OR, S i x t ~ ~ n tScss.,
h Fourth Cornm., Vnt. 1, 1 IXfiIh Meeting,
p. 185; 1219th Meting, p. 391); 1226th Meef ing, pp. 436, 437; 1233rd
Mccting, pp. 490-491; 1245th Meeting, p. 569; 1247th Meeting, p. 587.
GA, O H ,Scvcntccnth S a s . , Fourth Comm., Vol. 1, I371st Meeting,
p. 275; 1374th Meeting. pp. 214, 292; 1376th Mwting, pp. 301-303;
Vol. II, 3385th Meeting, p. 373; 1386th Meeting, p. 377.
GA, OH,Eightccnth S a s . , Fourih Cninm., 14Mth Meeting, pp. 218,
2 19.
G A , OR, Twentierh Sess., Foiirth Comm., 1564th Mceting. p. 272;
15tiSth Meeting, p. 279; 1567th Mwting, pp. 285,295; 1568th Mccting,
p. 302; 1569th ;Meeting, pp. 31 1 , 315; 1570th Mccting, pp. 327, 378,
3211; IS7lst Meeting, pp. 333, 334, 336; 1581st Meeting, p. 4 14.
GA, OR, Twcnty-first Scss., Fourth Cnmm., 1603rd Meeting, p p . 39,
41.
WRIiTE'I STATEMENT <>FWUI'H AFKICA
(b) Prar,i~ionnlRrccrcis
II N doc. AjC.4iSR. 1825 (1 7 Octokr iY69), p. 20.
U N dm. A!C.4/SR. 1826 (17 October I969), p. 14.
U N doc. AjC.4iSR. 1829 (20 Octoher I969), p. 4.
U N duc. AjCA/SlI. 1830 (20 Oct.obt:r I969), p. 3-
UN doc. AiC.4/SR. 183 1 (22 Oclober I969), pp. 4, 1 1.
UN doç. AiC.4iSR. 1833 (22 October 1969), p. 21.
7. Fif~itit~ammi~rreMt!erings
GA, OR,T w t n t y-first S a s . . Fif!h Comiti., 1 124th Meeting. pp. 23-25;
1 I32nd Meeting, p. ?O.
X. Uisarnicrnwiit Cutnfi iission
DC,OR,82nd Meeting, p. 12.
9. fiprernnfionnib i t * Cb~nniissio~t
Yearbnok of rlw iii?er~iationalLaw Comrrrtssiu~~ 1964, VUI. II (AjC N.41
SER.A/1964/Add. 1 ), pp. 56-57,60.
Yenrhook of the lnlircrnarionnl Law C~:ciminissicinf966: Vol. 1, part 2
(A]CN.4:SEIl.A/i966), p. 4 ; VoI. TI (AjCN.4/SER.A/1966), pp. 225-226;
Add. 1, pp. 25, 217,222, 236, 279 et seq. -
10. Coniniirt~ean Sudh WPST Africa

Reports to thc Gcneral Assernbly
GA, OR, Fourtcxnth Sess., Sup. No. 12 jA;419I), p. 41.
GA, OR, Sixteeilrh Sa.,Sup. No. 12 A (Aj49261, p. 17.
CA, OR, Scvcnieenth Scss., Sup. No. 12 (Ai521 21, pp. 18-I9.
UN doc. Ai6640 (1967). para. 43, pp. 18, 19.
Uri cioc. AiAC. 129jSR.3 (I957),p. 7.
U N doc. A!AC. 129jSIt.7 (1 9671,pp. 6 7 .
1 [ . I~lteritnComrnitt~6
Reports to the Geaeral Asscrnbly
GA, OR, -1-hird Qss., Sup. No. 19 (Ai578) (1 5 JuIy 19481, p. 14.
12. Specinl Curnnliltee on PaiPsrPi~
GA, OR, Seccincl Sess., Sup. No. 1 1, VoI. I (A/3G4), pp. 26-27,42, 43.
GA. O R , Second Scss., Sup. No. I I , Vol. i
l (A/3WAdd. l), p. 38.
13. Specinl Coi?ilnit!ee on rhe Siluatiun with Regard ro the Imp/etnt?ntalio~z
of
the G'rcirilirtg of Iridepeniirnce In Coiioniai Coi~ntriesaiid PcopIes
U N doc. AIAC. 109!PV. 225 (1 5 July 19C4), pp. 25, 27.
U N doc. A:h(300jRev. 1 (1965), pp. 126-128, 130, 133-1 34, 137-138,
140, 152.
UN dm. A;6301)IRev. t (19661, pp. 268-273,276, 279, 282, 193-294,
296, 248-299.
Uh' duc. A!670ojAdd. 2 (19671,para. 26.
14. Council for Soidth Wcsr AJuca
U N dm. Aj68Yr, in CA. OR,Twenty-second Sess., Annexes (Agenda
Ttem 64 ( b ) ) , Anrrex 1, p. 4; ilnnex IT, p. 6.
I 5. ~Mi~cellnricoirs
UN duc. A!123, in GA, U R , First Scss., Sccond Part, Fourth Camrn.,
Part I, pp. 1%-23:;.
820 N A ~ I I R I A(SOUTH WEST AFH ICA)
U N doc. AjC.4/41. in GA, OR, Fiist Sess.. Second Part, Fourth Cornni.,
Pari 1, pp. 239, 244.
U N doc. A/334. in GA, OR, Secoiid Sess., Fourth Cornni., pp. 134,1 35.
UN doc. AJ334jAdd. 1, in GA. OR, Second Sess., Fouith Corrini.,
pp. 13&138.
UN doc. Aj422, in G A , OR, Second Scss., Pfen~ryiMc~rirtgs,Vol. I I ,
p. 1538.
UN doc. Aj929, in GA, OR, Fourth Sess., Fourth Corniri., Anncx,
p. 7.
UN duc. Aj5993 (15 Septerriber 1865), Letter frmn ~ h ePerrrtrineirt
Hepr.e.xetiiotii.e of Sourl? Africn to ffie United iV(~!iuiisnririress~dro the
Secret<zry-Cietleru/.
D. Srcuurn I70illi1:1~
1. Rcsol;~f~utis
264 <19G9), 20 Marcli 1969, in UN dm. SIRES,i264 (1969).
-
269(19~j9),17Augus~1969,inUNdo~.S/HES,'269(1969). ,
276 (1 97II), 30 January 1970, in 11N doc. S,'ItES!216 (1970).

283 (1970). 29 JuIy 1970.in UN dm. SjRESj283 (1970).
284 (19701, 29 JuIy 1970, in UN dw. S!RES/184 (1970).
2. irf~efings
(a) <Ificiai K~cords
SC, O R , F-irst Year, No. 2, 32nd Mczting, p. 124: 34th Meeting,
pp. 174-175; 35th Meeting, pp. 182, 197, 199.
SC, OR,Second Year, No. 1. 89th Meeting, pp. IO-1 1, 14-15, 18;
No. h, 95th Meeting, p. 123; Nq. 7, 96th Meeting, p.'133; No. 31,
124ii-t Meeting, pp. 643-644, 648; No-74, 181st Meeting, pp. 1920,
. .
1933, 1935.
SC. OH, Third Year, Nos. 36-51, 27 1 st Meeting, p. I64:
SC,OR, Fifth Year. No. 3, 461st Meeting, p. IO: 483rd Meeting,
pp. 2-3; 488th Meeting, pp. 2-3.
SC, OR, Nincteenth Year. 1 14M h Maziing. p. IO.
{b) Provisional Records
U N .$OC. S ~ P V .1464
' (20 March 19691, ]>p.j-12,16,2 1-31),32, 34-38,
46-46, 54-56.
U N doc. SlPV. 1465 (10 March I969), pp. 7, 12, 27, 27. 32, 41-48,
52. 58-65, 71. .
UN dm. SIPV. 1492 (30 J u l y 19691, pp. 6-1 3, j6. 18, 21 -22.
U N dot. SjPV. I493 (4 AUgust 19691, 'pp. 7-10, 13-1 5, 17, 21, 26,
3 1 . 33-35.
L N dm. SiPV. 1494 (6 A u g y ~ t1969), pp. 7, !S-13, 16, 18-20, 21.
U N OC. SIPV. 1495 (8 Augtist 19691, pp. 3, 7-10, 12-1 5, 17, 45.
U N doc. SIPV. 1496 (1 1 Au y us i ,I969), pp. 6, 8-1 1 .
L N OC. SiPV. 1497 ( 1 2 August 1969). pp. 6-7,1 1- 15.
L:N doc. SIPV. 1527 (78 Januaw 1970). pp.26, 3 1-37, 37-38.
L;N doc. SiPV. 1 528 (29 January 1970). pp. 8. 1O- 1 b. 2 1-22, 26, 3 1 -
33. 46,48-50, 52-55. 57, 53-65.
U N doc. SjPV. 1529 (30 January 1Y70), pp. 7-1 5, 17-18. 27, 33-35,
38, 41, 47-51,53, 56, 66, 83-85,87.
U N OC. S/PV. 1550 (29 July 1910): pp. 8-10, 36-41. 46-47.51-53,
57, 61-Sb,71-81, 87-91.
W K l ITEN STATESIENT. OF SO11TkI Ai-RICA 52 1
3. Orker
SC, OR, First l'car. First Scries, Sup. No.2 , p. 72. .
S C , OR, Fifth Yt:ar, Sup. for 1 January-31 May 1950, pp. I9,20.?2,23.
UN doc. Sj7271 (78 ApriI 1966). pp. 59-62.
UN doç. Sj7392 (1 July 19661, pp. 16-17.
U N duc. 518307 20 December 1963, p. 325.
U N duc. Sr8943 {2? Dewmber 19681, p. 179.
U N doc. Sj9090 (14 March 1969), pp. 126-127.
U N dot. SjY359 i24 July 1969).
U N doc. 5!9371{1 August 19fi9).
UN &c. $9463 (3 October L W ) , pp. 1, 20,47; h n e x I , pp. 21 -22.
U N da.. Si%] fi (26 January 1970) and Add. 1-3.
UN dm. Si9863 (7 July 1970), Kepori and Recotitmendations sub-
rnittcd by tlie Ad Hoc SiibCommittcc t5tabIished in piIrsuance of Security
Council rcsolution 276 (1970).
E. Ecmourt: %CIAL COUKCIL '
for Afrit11
Econotnic Catnnii~.~ion
U N dm. E/CN. 14J!;WSA/7, "Youth Einployment and Narional Dcvclop-
ment in Africa", Sori<ri Welfnre Services in Africo, No. 7, Noveniher 1958,
L'niied Nations, Social Uevelopmenr Scct ion of the Econornic Cornmisfion
for Afriw, pp. 35-35.
F. TRUSTEESHIP CI>L:NCII.
1 . Council rlfeefings
TC, OR,Second Sess.. First Part, 6ih Meeting, pp. 121-132; 15th Mccl-
ing, pp. 470-473,475-476,478, 480-486, 488-490, 492-512; 18th Meeting,
pp. 573-580, 593, @Il, 603-605.
. TC, OR,Tliird %S., 31st Mscting, pp. 416-417; 41st .Meering, pp. 531-
539: 42nd Mecling, pp. 540-552.
TC, OH,Fifih SC-SS.,Isf Meeting, pp. 2, 3; 25th Meeting, pp. 309-312;
27th Mwiing, pp. 329-335. 310, 343.
2. Reports to the Gentru1 Ass~mhly
CA, OR,Third Icss., Sup. Nu.4 (A:603), pp. 42-45.
3. Miscelinneous
U N dm. Ti1 75, in TC, OR, Third Sec<., Sup. (Tj337), pp. 5 1-52.
GA, OR, Second Sess.. Sup. No. 10 (Aj402jIlev. l), Proposed Trustcc-
ship Agreement foi the Mandated Territory of Nauru, subrnitted by the
Govemrnents of AllstraIia, New Zealand and the United Kingdom.
G . SECKFTARIAT
1. Depurtmenf uf Eroi:o~nii:and Sucial Affairs SIatistical OEce
Defriographic Y~art-ookfW8, Twent ieth Tssuc (New York, 1969). pp. 85-
89.
Statisticnf Yerrrlioo.k I968, Twentieth Isst~e(New York, 1969). 206-21 2,
453-454, 464, 557-558, 59(tW;07,573-677.
Monfhi-v Builetin ofSrafislics, Vol. XXIV, No. 9 (Septernkr 1970),pp. 1-4, ,
300-202.
2. Oficc of'Pübiic Infrinmtio~i
Every~nnn'sUniredAYt;juns, Sixth Edition ( N e w York. 1959), pp. 4-6.
822 NAMIRIA (SOUTH WESI AFKICA)
H. IKTXRG~~~ERNMENTAL AGENC~ES RELAIED .SO Tilt: U ~ r r NATIONS

~n
1 . Itrterririii~nul Barik for R~cons~rucrioiroiid B~vr~opnreirt, Infernariorial
D~vefopnenrAs.roria~ion,Artfiau! Report f 19681, p. 8 ; (1 9691, pp. 1 I)- I1.
2. Worfdifeualtir Orgonizurion
WBrid IJeoiflr Sturisfics druiirni 1962, Vol. III, Healtli Personnel and Hos-
pital Establishments {Geneva, World Fiealth Organiration, 1966).
1. OTHEK
I. The kE 3~1r1rr of ihr Unitcd ,Variorts.
2. The Sr~zureof the Ini~rrroiioiiult.vurt of justice.
3. U N do:. A!CONF. 39/27 (23 May 19691, Ltriired iVatinirs Conjer~nceon
the t r r w of Treuiies: V i c m Cori venrivii un rha Law of' Treatie.7, pp. 1 7,
78-29.
United ,Vuiiuirs Conferettce on I ~ ELaw of Tr~urirs.OR, First Session,
Vienna. 25 March-24 May 1968 (A/CONF.39/1 l), pp. 156-185,208-214;
Second Session, Vienna, 9 April-21 May 1969 {A/CONF.39:1 I:Add. 11,
pp. 57, 59.
4. "A FormidableTask in New tiu~nea:Praccful Pcnctrütion Continued in
Primitive Trust Territory", United ,latiorrs Xexrieiew, Vol. 2, No. 3 (Scp-
teniber 1955), pp. 33-44, at p. 34.
5. "New Guinea-- Most Backward Trust A r a " , Uiiired hrnfinrr.~R ~ v i e ~ , ,
VoI. I, No. 3 (Septenilx 1954), pp. 3 1-36, at p. 31.
6. Reperturj; uf Practice of Uniled Narioirs Or~?(~ns, S Vols. @ew York,
United W~arions. 1955), Vol. XI. pp. 19, 20, 21, 22-23, 183, 203-204, 219,
237, 238, 239, 283, 285-286, 299.
7. Repertuirr uJ the Fraclice of rke Secrrriiy C.'oimt.il 1946-193f (New York,
Unircd Nat ions Departmeni of Polit ical and Sccurity Council Affairs,
1954), pp. 172, 1 26.
8. Yenrlior#k of rire Ffzter~rationnlCozrrr of Ju.r!ice, The Ihgue. I 95 1 - 1952,
p. 89.
9. Ut~iied~VuriotisTreafy Series, Vol. 1 {1946- 19471, pp. xvi-xvi i. xx-xxx.
Cor5fk~ctrcede ,'euP ( ~ i x191Pi920, Rectreif des ai:ies de iu C.-unJdrrtire (Paris,

Imprimerie rrationale, 19341, Partie VI. Truites uwc Ics Pirissaric~sctl~ietiiips.
mise PJI vigztetir, A, ~ r ~ ~ o r nde i i niise m r i g i w ~ ~1r , fm.,p. 327, 353, 399:
h in
416.
77re FiYsf West Afr~cariSiitnrnir C.'oi$errncr held crr Sunriiqlrrliie, Ceirtrni Pro-
vince, Liberilriz Hinieri{indd Jiriy 13-19, 1859 (Monrovia Li herian Tnforniat ion
ServicelLondon; Consofidatcd Publications C h . L.td., 1959). p. 30.
Citid. 5666 (London,

A Corntnmiriry otr ~ h eCharlcr of the Uiriied ~~'irtiurrs,
His Majesty's Stationery Ottice, MiscelIaneous Nu. B (I945)), p. 16.
WKITTElr: STA'I'EMEKT OF SOUTH AFRICA
VI. UNITED
STATES OF AMEKI(:A
1. fieurings hqfoue the Commitree oii Forrigir Relniions, Uriifed Slntcs Scnafe,
on The Cfrrirter uf the United :Votions. 79t h Congress. Erst Session f 1445),
pp. 41, 2I 1. 213, 265.
2. Pap~rvsRriuring ru rbe Foreirn Rebrions of the Unilrd Sluies: Thc Paris
Peace Cotrferencc, 1919. 13 Vols. (Washington, Cnifed States Govemment
Printing OfIlce, 1942-IW), VOL. T, p. 407; Vol. m. pp. 719-720, 723, 739-
750, 76 1, 763-754, 76 3-770,785-786, 788-79 1, 743-796, 798,800-802, 8 1 6 ;
Vol. V, pp. 474, 508-509.
3. Reporr 10 rlie PresiJeci by the Scrreiury of Srare or] rhp Hesulr.~4 the San
Francisco Cuiifrrrnce, Department of Statc, Pub1imtion 2349, Confereitce
Ser~es71, p. 71.
VII. BWRS A N D PAMPHLE

15
1. Anand. R. P., Studits NI fnteriirrtionni Arljidircrfion (DcIhi-6, Vikas Pub-

lications; Kew York, Oceana I'ublications, I969), pp. 138, 145.
2. Bttkcr, R. S., Woodrow Jl/ilsun nnd World Serr!em~nf,3 Vols. {New York,
Doubleday, Page anii Co., 1922-19231, Vol. III, pp. 108-110, 126-129.
3. Hast id, S., "De quelcliies problèmes juridiques posés par le dbveloppement
des orgunisat ions ini crna t ionalcs", Les proi>tènres fond(immfoux du droir
intcr~atioriol.Mêiatg es en I 'hunnc~frde J. Spirupau~us(Bonn : Schimrnel-
busch, 1957). p. 35.
4. Bcer, G . L.,African Questiu~rsar ihe Paris Perice C.~n~errncr, ed. by L. H.
Gray (New York, Macmillan, 19231, pp. 431, 443.
5. Bentwich, N., The A4ai1dnres Sysrem (London, Longmans, Green and Co.,
1930), p. 16.
6. Bentwich, N.and M i r t i i ~A.,
. A Cotnnirntury on the Charter o f ~ h eUnited
iV(~iioirs(Idondon, Rrlutltdge & Kegan Paul L t d , 19511, pp. 33, 63. 75.
7. Bernhardt, R., Die A~t~lcgrtngvofkerrerhtlirlirv Vrrfrüge (Koin, Berlin,
Car[ Hey manns Verliig Kg, 19631, pp. 169, 174.
S. Bowet i, D. W., The i.nw of'liit~rtmtioir~l in.~iiiüzioii.s(London,Stevens and
Sons, l953), p. 32.
9. Brierl y, J. L.,The Luiv uf,'irriirir.~,Sixtli Edi tion (Oxford. CIitrcndon Press,
1963), p. 1 1 O.
10. Chawdhuri, R. N.. Iri!crnntional M n ~ d a r ~und s Triisi~rshipS ~ S ~ P@hc
IIIS
Hague, Martinus Nijhofl. 1953, p. 62.
1 1 . Dahm, G., Vü/iiikrrre:hr, J I i Bande (Stuttgart, W. Kolilhamn-ter Vcrlag,
1958-1961): Band T, pp. 27, 565; Band II, pp. 25,721. 272; Rand III, p. 55.
1 2. Degan , V. D., L'itrreipr&tntiondeesrzrcurJs en clrait ijirertiationai (La Haye,
Mart inus NijhofF, 19ri3), p. 130.
13. de Visschcr, C . . LPSqqècril~iiksdi droit i~irernutioirnipuhfi~~ (Paris, Editions
A. Pedone, 19671, p , 54.
14. ni Quai, J,. LPSe#ei*~des résolirtiuns ries iVations U~riesparis. R. I'ichon
cl R. Durand-Auzias. 19671, pp. 1 1, 79: 81.
1 5. Dolivet , L., The Utliln!dhratioris: /l Hui~diioalion rhe ,Sen. GVurfd Orgatiiza-
rion (London. Phucrix House, 19463, pp. 28. 48.
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Durand-Auzias, I364), p. 307.
1 7. Fauchil le, P., Troi~lrle drpir iiiitrrnuriotzai ptibiic, 8
' kd. (Paris,Rouswau ci
Cie, 1925), Tome T, 2' partic, p. 846.
18. Fitzmaurice, Ci.,"SurJicial Innovalion-lis Uses and ils Pcrils-AS exem-
WRl1TFK SI'A'IEMtNP' OF S 0 6 r i - i AFKICA 825
40. Logan, R. W.. The XJrica11 :t.lnnriore.s in Worlrl Poli(ics (Washington, The
Public Affairs PFCSS, 19481, pp. 1-2.
41. Louw, D.J., firurc. P(iiritrinl of Anifna] Pruducriun in Soirrh Wc,s?AJrica
(I968), p. 4. {Lnpubl ished.)
ij411mhtes(Baltimore, J o h s Hopki 11s
42. Margaiith, A. M . , Thc it~rertiiiriuticrf
Press, 1930), pp. 33-14, 199-200.
-13. McNair, A. D., The L a w of Tr~niicr(Oxford, Clarendon Press, 19Gi),
pp. 383, 424, 429.
44. Miller, D. H.,The l)raftiny o f - ~ l i Cat*en(~nr,
e 2 Vols. (New York, G. 1'.
Pulnani's Sons, IYZX, Vol. I, pp. 43, 73, 75. 106-107, 186; Vol. II. pp. 88-
89, 104, 153. 273, 272, 783, 285, 285, 306, 3I4-315. 323, 333-334, 362, 384-
385, 676-680,737.
45. Mil Iot, A.. Les nn~n(lhrsin!ertlrrtionalrx: Erude .711r('~ppiicnrionde I'arricle 22
du Pnrre de la SocikrC des :Vuiioris (Paris, Emile Larose, 19241, p. 89.
45. Mohr, E. G . , Dic Fmgc der So~~ver&nitur in den .Wundatsgebietcn (Borna-
Leipzig, Universit2tswrlag von R o k r t Noskc, 19281, p. 4.
47. Nicholas, H. G . , Tf;s United Nurions As A Puliiical frisrilurion, f h i r d
Edi tion (Oxford University Press, 1967), pp. 86-87.
48. Pahl, R . , Dns vükei-recli~iickeKn!miat-Mnndar (Berlin, Otto StolIberg
Vcrlag GmbH, 1928), p. 103.
49. Pel ichet , E., La persa~nnalitlinreniarionnie distiircre des rofiecfiviitk .s.ous
rnaridnt (Paris, lioussr:aii et Cie, 19321, p. 39.
50. Ilosenherg, L., Lehrbrrrh des Deutscfien Zivi/pruzessrech~s, 8. Aufiage
(München und Bertin, C. Fi. Beck'sche VerIagsbuchhandlung. 19601,
pp. 91-92, 700-701.
51. Kosenne. S., 7'hti Law and Pmctice of the Irrterrurtiut~crJ Court, 2 Vois.
(Lcyden, A. W. Sijlhiiff. 1965), Vol: TI, pp. 667, 698-699,701,704, 708.
52. Ross, A., Con.sritü?iov (8I ~ United
P Nuriuits (Kehenhavn, Fjnar Munks-
gaard. 1950). pp. 59-1j0, h l , 83-84, 160.
53. Schncidcr, W., Das volkerrechtlichr :Mnridnt (Stuttgart. Ausland und
Heimat VerIags-Aktit:ngesellschaft,1926). py. 14 r f srq.
54. Schwarzenberger, G.: infrrmfionafLaw, Third Edition {London, Stevens
and Sons, I957), Vol. 1, pp. 10 1-10?.
55. Schwvarzznberger, G . , A :Wunuui of iinernarinnai F m , Eifth Edi tion
(I.ondon, Stevens ancl Sons, 19671, pp. 289, 293.
55. Scymour. C.. The Iriritnate P a p ~ . rof Cofoiid fioiixe, 4 \'OIS. (London.
Ernest Benn Ltd.. I9::G-1928), Vol. TV, p. 307.
57. Simpson, J . L. and Fox, H.,Itzrcrrinriutin/ Arbi~ruiiotr (London, Stevens
and Sons, 1959), p. 91).
58. Surensen, M. (ed.). ;Wntj~lafof Public Iiirert~afionolLaw (London, Mel-
bourne, Toronto, Ma:rnillan. 19681, p. 88.
59. Spicgcl, M.,Dos vdkerrecfirliche!iAnndnr und scii~cAnwenrirtng nz@Pr~lüstiria
(vienna, Leuschnef a;id Lubenrky, 19281, pp. 8-9.
M. Smuts, J. C., T h Lt~ugurof hrariotzs: A Prncticcrl Suggesfion (London,
Hoddcr und Stoughtrin, 1918). pp. 12, 15.
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5 Vols. (London, Heiiry Frowdc and Hvdder arid Stoughton, 1920-1974),
VoI, 1: p. 195; Vol. iT,pp. 233-234,237,234; Vol. In, p. 95; Vol. VI, p. 502.
62. ?'il1 man, S,P., dn~~/u..Anierican Reiario/~sa1 ~ht?Puri.$ Peare Co!ifirenfeof
1919 (Princelon Univ,:rsi[y I'ress, I961), p. 59.
63. Townscnd, M. E., The Risc cinrf Fdi of Gertnm~y'sColoiiial Empire (Ncw
York, MaciniIlan. I9:tO), pyi. 363-369, 377-378.
public (Paris, Edit ions A. Pcdone, 1965).
64. Tunkin, Ci. T., Droit it~ffvtio~ionuf
p. 94.
55. Va1lat, F., "The Peaceful Settleiiient of Disputes". Cu~ribridgeE m y s Ni
IAW(I,ondon, Stevens and Suns; New York, Oceana Publica-
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66. Van Rci:s, D. F. W., Les miandnls ititerriuliunuux: Le cuntrble irrtcrrrinrio~inl
de I'udtrinis~ru~ianmundutaire (Paris, Rousscaii et Cie.. 19271, pp. 38-39.
67. van Roi,ien,R. D., Procedure-Krcesric.s in her Vntke~ihoiid~~rech? Ys-Graven-
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68. Verdros:;, A.. Vfilkemchr,5. ~ u f l a g (Wicn,
e Springcr Verlag, 1964), pp. 520,
522.
69. Verzijl, J. H. W., "International Status of South-West Africa (Advisory
Opinion of I I .iuly 1950, t.Ci.J. Rrpc~rts1950)". The fU ~ ~ S ~ ~ U ~ ofE J the
I C E
Worid Cour!, 2 Vols. Wyden, A. W. Sijthvft; 1965-Ighfi), VoI. II, p. 50.
70. von Freytagh-Loringhoven,A., Uas Mandatsrei:hr iir &II Jeutscherr K u l o n i ~ ~
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71. von F~ytagh-Lorinyho\~cn,A., "Dic Mandatsherrschaft des VKlker-
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72. Walters, F. P.,A Hisrury of the Ltwzue of A'arons, 7 Vols. Q,ondon,
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I,ondon), p. 8 13.
75. Wright, Q., Man&tes Under the L e u ~ i ~ofe ~ v ~ r i o (Chicago,
~ts Chicago
liniversity I'ress, 1930), pp. 3, 15-23,4?-48, 50, 83-84, 87-90, 109-1 12, 118.
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2. Rindschedler, R. L.. "La delimi[ation dcs conipétences des Nat ions Ilnies",
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388, 415.
5 . Rlaine iiloane, F., "The t3inding Force of a 'Recommendation' of the
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INTERNATIONAL COURT OF JUSTICE

PLEADINGS, ORAL ARGUMENTS, DOCUMENTS

LEGAL CONSEQUENÇES FOR STATES OF THE

COUR INTERNATIONALE DE JUSTICE

MÉMOIRES, PLAIDOIRIES ET DOCUMENTS

CONSEQUENCES JURIDIQUESPOUR LES ÉTATSDE

B. The political background to the adoption of resolution 2145

Vide Ciai.t~inExpenses (f th? Uiriieti Notions (Ar:iclr 17,puragruph 2, of the

for GeneraI Assernhty r w l u t i o n 2145 (XXT) and thesubsequent United Nations

Vide para. 4 of resolution 21 45 (XXI), quoted in Cliap. VI. para. 1, infra.

THE INTERPRETATIOK AND MODIFICATION OF TREATIES

1. In his dissenting opinion in 1966, Jjudge 'I'anaka said:

I. The Aim o i Purposr of fhe Interprctative Process

2. 11 is a well-establishcd principle of international law- thrit the aim or

1. A treaty shall bi: inttrp~tedin good Tairh in'accordance with the

South W ~ s rAfricu, Second Pkase, dudgnzent, I.C.J. Reports 1966, p. 278.

, "The C~ornrnissionIi.e., the International Law Cornniibsion] had dclib-

8. inasmuch as the objcçt of interpretation is to aswrtiiin the cornmon intml

il. Sufisequet:t Cot~dttcras an Aid lu Inrerpretaiiori

( b ) Any siibsequent practice in the application of the t r a t y which

15, with 26 abstentions, by rhe Confertnce's Commitlee of the Wholc.

1Y. Priictice n-ifhinthe Unirec?,Tarions

Vide para<. 10-13. s~tpm.

' Vide paras. 19-31, supra.

Cotuidwing that difficulties may ariw regarding the representation of a

' SC. O.R,op. rit., pp. 22-23.

If. The Kequirernrnl of the Concwring Yoles of rhe Perriinnent M m b e r s uf ?lie

' ihili., pp, 515-556.

answered in the iiegative. Articlc 27, au W C saw, required seven affirmative

Ross. A.. Consriiririoiz o f f h e Clnitcd Nafioiis (1950), pp. 83-84.

Gross. Yulc I.aw Jnurnrii. VoI. 60,No. 2 (19511, pp. 209-21 0.

Vide Chap. II, paras. 26-29,supru.

: Vide for instance. Stavroniiulos. AJII .. VoI. 61 - 1967).

Uniieii Noriotu ( A rrick 17. piai-a~ruph2, of rhr ch~:horier).

Africa. Wr have expIained why we have fett lhat ihcadoptionof resolutions

' U N dor:. SIPV. 1529 (30 Jan. 1970), pp. 17-18.

E. The Yon-Procedurd iilature of Securify Council Hesoluticiti 284 j1970)

CXCIO docs.. Vol. XI, 1). 704.

F. Tfie FaiIure of the Swurity Couiicii to Invife Soufh Arica

5 1. The last question io bv coiisidered in connection with ihe forma1 validity

' Il~id.,tirst operative paragraph.

Soalk Wt'sr Ajrica, Pftliniinary Ohj~riions,judgint~nl.I.C.J. Reports 1962. p. 345.

I h d . , No. 7, 96th Meeting. 28 Jan. 1947, p. 133.

in accord;ince wi th the procedures prejcribed in the ~ h a r t c rIt. is accordingly

Jimênel. de Aréchaga, op:.çir., p. 57.

+ Vi~ieK.elstn, op. ci!., p. 223. ...

B. The Political hckground to the Question and the lavolvement

4. States have at timcs contended thüt certain qiiestions rekrred to the

Roseririe, up. ci!., p. 704.

11. The Recepfioa uf the Currur's 1966 Judgrn~nr

"shocking", "shaineîul", "ti distortion of Iaw", "a denial of justic", "an

'This wiIl appear [rom thgc~tractsfrnm srarernenrsqi~otedbclow and in hnnex A

l ihid., 1425th Plcnary Mccting. 30 Sep. 1966, p. 1.

Ibid.. 1422nd Ptenary Mileting, 29 Sep. 1966, p. 14.

suggestio~that individual judges had k e n lacking in integriry or tiad actcd in

I l i . The / n v o l v ~ m mof~ the C:oüri m Consiirrrfed ut Presenr

15. Mention has already k n made of the intentions expressed by represen-

ibid., 143 1st Plenary M c e i i n ~ 5, Oct. 1966, p. 14.

22. [teferencehas aIrcildy k e n made to the maitner in whicli Sir Muhammad

UN d m . SiPV. 1550 (29 3uly 19701, p. 71. . -

' CA, OR.Scvei~teenthScss., Sup. No. 12 IAp2 12), pp. 18-19.

Yearbook of the Inr~rnarh?naiCouut uf Jusiicr,, 195/-IY5?, p. 89.

Ibid., 1449th Plcnary Meztitig, 19 Oct. 1966, p. 4.