NAMIBIA BY RESOWTIONS:

NAMIBIA BY RESOWTIONS: A LEGAL ANALYSIS OF INTERNATIONAL ORGANISATI9?NS' ATTEMPTS AT DECOLONISATION 1*I2 by Tvwur IIUARAKA

TABLE OF CONTENTS PREFACE HISTORICAL INTRODUCTION CHAPTER I THE ESTABLISHMENT OF THE MANDATES SYSTEM I. Internal Political Struggle 2. Inter-Ally Contradictions 3. Negotiations at the Paris Peace Conferen c CHAPTER II CHAPTER III CHAPTER IV THE MANDATE FOR SOUTH WEST IN OPERATION 1. The Legal Framework 2. The Bondelzwarts Uprising 3. The Well-being and Development of the Inhabitants INTERNATIONAL ACCOUNTABILITY AT CROSSROADS 1. International Accountability during the War 2. 's Statements during the Transitional Period 3. The Mandates System into Trusteeship System 4. Succession in International Organisation THE UNITED NATIONS LEGAL APPROACH TO DECOLONISATION AND NAMIBIA 1. United Nations Resolutions 2. The United Nations Law of Decolonisation 3. The Principle of Self-Determination 4 11 13 20. If29

CHAPTER V CHAPTER VI WITHDRAWAL OF THE MANDATE Remand to the United Nations Revocation of the Mandate The Legal Significance of the General Assembly Resolution 2145 (XXI) 286 F3189 318 CHAPTER VIII CHAPTER IX THE NAMIBIA ADVISORY OPINION 1. Introductory Comment 2. The Conflict between Decolonisation and Colonisation in International Law 3. Conclusion ATTEMPTS AT THE IMPLEMENTATION OF THE UNITED NATIONS DECISIONS 1. The United Nations Council for Namibia 2. The Decree on the Natural Resources of Namibia 3. The Legal Characteristics (of the Statehood) of Namibia 4. Domestic and International Decolonisation CONCLUSION BIBLIOGRAPHY APPENDICES THE NAMIBIA QUESTION AT THE UNITED NATIONS 1. The Principle of International Accountability of the Mandates System Legally Sanctioned 2. Imitation of the Permanent Mandates Commission Attempted 3. Implementation of the Principles of International Law of Decolonisation Attempted 4. United Nations Presence in Namibia Attempted NAMIBIA AT THE INTERNATIONAL COURT OF JUSTICE: THE LEGAL BATTLE 1. General Comment 2. The Legal Interest or the Right 3. "The Theory of Parallel Provisions" of Judges Spender and Fitzmaurice CHAPTER VII

COUR. INTERNATIONALE DE JUSTICE NAMIBIA BY RESOLUTIONS Foreword This book on Namibia by a Namibian is certainly the most systematic and comprehensive account of what used to be called, until recently, the Territory of South West Africa. About eleven years ago the International Court of Justice gave its Advisory Opinion in the cause cil~bre: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). The main conclusion may thus be summarized: "that the continued presence of South Africa in Namibia being illegal, South Africa is under obl4#tionv to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory; that States Members of the United Nations are under obligation to recognize the illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts and in particular any dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, such presence and administration;" and, finally, "that it is incumbent upon States which are not Members of the United Nations to give assistance ... in the action which has been taken by the United Nations with regard to Namibia." It is noteworthy that these precise conclusions reached by the Court, and which the United Nations has accepted and has been trying to implement ever since, have not, up till now, been complied with by the Government of South Africa. I NTEFRLNATIONAL COURT OF JUSTICE

COUR INTERNATIONALE DE JUSTICE - 2 The story of Namibia as told before the Court goes back to the origin and operation of the Mandate System, established immediately after World War II by Article 22 of the League Covenant. In the actual presentation of the case there are important issues involved where the nature of the Mandate System and its working under the League of Natious, the consequences of the demise of the League and the establishment of the United Nations itself in 1945, as well as the impact of the further development within the new United Nations Organization are considered. It was with these problems in mind that the various resolutions of the United Nations were adopted and attempts made to implement them, and this is the main subject of this book, which bears the expressive title: Namibia by Resolutions. As the Court itself observed, thetmatter before it provided the sixth occasion it had to deal with the issues involved in the Mandate of South West Africa. The crux of the matter was, of course, the resolution of the Security Council which put an end to the South African Government's Mandate over the Territory and the consequent request to the Court to make a pronouncement on that resolution. The South African Government disputed the validity of that resolution, and invited the Court to pronounce it, and the preceding resolutions, to be of no effect. After due consideration of all the relevant resolutions already adopted by the General Assembly and the Security Council, the Court came to the firm conclusion that it had no power, under the Charter of the United Nations and its own Statute, to declare any of these resolutions invalid. What the Court did was to take judicial notice of all the relevant resolutions, especially resolution 276, and to declare them legal and valid as to what they in fact laid down. INTERNACTIONA COUR.T OF JUSTICE

CHAPTER V CHAPTER VI WITHDRAWAL OF THE MANDATE Remand to the United Nations Revocation of the Mandate The Legal Significance of the General Assembly Resolution 2145 (XXI) 286 318 CHAPTER VIII CHAPTER IX CONCLUSION BIBLIOGRAPHY APPENDICES THE NAMIBIA ADVISORY OPINION 1. Introductory Comment 2. The Conflict between Decolonisation and Colonisation in International Law 3. Conclusion ATTEMPTS AT THE IMPLEMENTATION OF THE UNITED NATIONS DECISIONS 1. The United Nations Council for Namibia 2. The Decree on the Natural Resources of Namibia 3. The Legal Characteristics (of the Statehood) of Namibia 4. Domestic and International Decolonisation THE NAMIBIA QUESTION AT THE UNITED NATIONS 1. The Principle of International Accountability of the Mandates System Legally Sanctioned 2. Imitation of the Permanent Mandates Commission Attempted 3. Implementation of the Principles of International Law of Decolonisation Attempted 4. United Nations Presence in Namibia Attempted NAMIBIA AT THE INTERNATIONAL COURT OF JUSTICE: THE LEGAL BATTLE 1. General Comment 2. The Legal Interest or the Right 3. "The Theory of Parallel Provisions" of Judges Spender and Fitzmaurice CHAPTER VII

COUR INTERNATIONALE DE JUSTICE -4 proffered evidence of the treatment which it was according to the peoples of the Territory and, indeed, for the Court to go out to visit the Tirritory concerned. The Court felt that the thousands of pages of print, including charts and diagrams, were so detailed and graphic as not to require any supplementation by an official visit of the Court. As the representative of the Organization of African Unity in the case before the Court, I am of opinion that the Court was right. This book is recommended, above all else, for its avoidance of sentimentality or bias. It is a scholarly presentation of an important subject of contemporary international law, and deserves careful study as-such. T.O. Elias The Hague, 15 July 1982 INTERNATIONAL COURT OF JUST1CE

PREFACE The question of Namibia in time and substance covers the whole spectrum of decolonisation. It ushered in the beginning of the end of colonialism and, unbelievably, ends the end as well. In this respect, the Namibia question straddles the various phases of the development of international organisations. Consequently, the question of Namibia, as it evolved before international organisations, illustrates demonstratively the various stages of the evolution of the principles of international law..Opceruang decolonisation. However, very often the question of Namibia has been considered and analyzed in piece meal. The various aspects of the question are considered as points of dispute between South Africa and the international community, resulting from the former's failure to place Namibia under the Trusteeship System, for example the advisory opinions of the 1950s. These disputed points are not considered as part of the wider question of decolonisation. Yet the question of Namibia is in the final analysis a question of decolonisation. In this study, on the contrary, the decolonisation aspects of the question are the focal points. The various specific points of contention in the long history of the question of Namibia before international organisations are considered not as ends in themselves; but as the means by which the international organisations were able to develop and to amplify the principles of international law relating to decolonisation. The question of Namibia as a case study is, thus, used to demonstrate the impact of international organisations in the development of international law in this field. Consideration of the question of Namibia as only a dispute involving the interpretation of the various provisions of the international agreements, without taking into account the purpose and objectives of the mandates and the trusteeship systems, could lead to incorrect conclusion. This is what we try to demonstrate in this study. Focussing the study on the decolonisation aspects of the question of Namibia meant that certain issues, though considered important at one point and which may have occupied the attention of the international community, for example, the international legal norm of non-discrimination in the South West Africa Cases, are not given the same treatment. Also as a result of this fact.the study is set in a chronological order, with insertion of analytical sections now and then to bring oukhe pinciples of international law relating to decolonisation as they evolved. The decisive factor is the presentation of the evolution of the principles of international law concerning decolonisation, thus, at times the chronological order is not strictly kept. The first two chapters deal with the establishment and the operation of the mandates system; and there the germinal seeds of decolonisation are perceivable. The third chapter which links the League of Nations and the United Nations answers certain queries raised at various stages, particularly at the International Court of Justice, thus this chapter breaks out of the chronological order. Chapter four could probably have been placed anywhere for it is a theoretical analysis of the legal significance of the resolutions of the United Nations. However, it does seem proper to present the legal position of the resolutions of the United Nations before considering the question of Namibia before that organisation. Chapters five to seven seem to follow more strictly the chronological evolution of the question of Namibia; except that chaptpr seven in order to place the issue of the withdrawal of the mandate in its proper historical perspective,reverts back to issues that could have been considered in the second chapter. The last. two chapters could be interchanged. However, chapter nine, though it covers partly issues considered before the Namibia Opinion, nevertheless is largely concerned with implementation of the decisions of the United Nations. The fact that the Namibia question involved concrete issues of transforming a territory from a dependent status to independent status, the legal significance of the decisions of the United Nations is clearly verifiable in their implementation, this point is treated in the last chapter. The examination of the problem as a question of decolonisation presents the possibility to appreciate the legal rules which the United Nations developed in its attempts to resolve the issue. In this respect lies the wider significance of the question of Namibia.

HISTORICAL INTRODUCTION We should of necessity sketch the colonisation of Namibia, the process 1 which the international community has attempted to dismantle. Namibia was the last territory in to be formally colonised. Germany declared that Namibia was her colony in 1884. But the country had had early contact with Europeans. Bartholomew Diaz, the Portuguese explorer, anchored on the shores of Namibia in 1487 at the present Luderitz, which he named Angra Pequeia.2 And European explorers, hunte.v;and fraders travelled more frequently to and in Namibia by the end of the eighteenth century. The first missionary was established in 1814 at Bethanie by the London Missionary Society.4 About the 1830s the Rhenish Missionary of Germany entered the scene, and set up missionary stations at Windhoek, the present capital, and at Okahandja, at that time the royal centre of the Hereros. By the middle of the nineteenth century the Rhenish Missionary took over all the mission stations in the country previously held by 1 This does not suggest, however, that the tools the international community uses in its attempts to decolonize Namibia are resultant of the colonisation period. 2 John H. Wellington, South West Africa and its Human Issues. Oxford; Clarendon Press, 1967, p. 158. 3 see, ibid., chapter 8; also, Heinrich Vedder, South West Africa in Early Times. London; Frank Cass, 1938, Part I, Section I. 4 Peter Duignan and L.H. Gann (eds.), Colonialism in Africa 1870-1960, vol. I. Cambridge; The University Press, 1969, p. 385. the London Missionary Society. The missionaries played a very significant role in preparing the indigenous people psychologically to accept German colonsation of the country. Three forces were at play in the colonisation of Namibia: the British Government, the German Government and the Cape Colony administration. The fourth power in the area, the Portuguese, played a very insignificant direct role; except indirectly, as a weak power whose colonies in the area could be taken over by Germany or by Great Britain. Before 1880 the whole of Eastern, Central and Southern Africa was 2 for Great Britain for the taking with no colonial rival. But, despite persistent requests by the Cape Colony Administration for Namibia to be annexed to the , Great Britain turned a deaf ear to such pleas. In 1876 the Cape Governor, Sir Henry Barkly, sent Palgrave as a Special Conissioner to Namibia, to investigate the conditions in the territory and to advise on the feasibility of bringing the territory under British protection.3 In September 1876 Palgrave was able to impress upon Maherero, the Herero King, and his councillors as to the desirability of placing themselves under British protection.4 For such a protection the Hereros offered Walvis Bay and its surrounding areas to the British as part of the bargain.5 I Johannes Lukas de Vries, Sending en Kolonialisme in Suidwes Africa: Die invloed van die Duitse Kolonialisme.of die sendingwerk van die Rynse Sendinggenootskap in die vroeere Duits-Suidwes-Africa (1880-1914/18). Doctorate Thesis, Protestantse Theologische Faculteit te Brussel, 1971, (Unpublished) p. 21. 2 J.S. Keltie, The Partition of Africa. London: Edward Stanford, 1895, p. 153. 3 Wellington, op. cit. p. 163 et seg.; Vedder, op. cit. p. 423 at se. 4 Wellington, oDp cit. p. 164. 5 For the text of this treaty see, The 'Blue Book' (British). Report on the natives of South West Africa and their treatment by Germany, H.H.S.O. 1918, CD. 9146, p. 18.

Thus Palgrave returned to the Cape with a treaty of protection. However, for a number of reasons the British Governent were against any expansion of the Cape Colony. It will be recalled that Great Britain took the Cape of Good Hope from the Dutch in 1795 in order to safeguard their interests in the East;1 and as far as their interests in the East were concerned there was no need to annex Namibia. Secondly, at that time Great Britain was involved in the Egyptian affair,2 and the retention and control of was, at that time, considered as of vital importance to the British interest in India.3 These factors prevented the British Government from making the protection treaty of September 1876 effective. The customary practice would have been for Great Britain to send a token military force and some administrators. Instead, Palgrave returned as a resident magistrate at Walvis Bay. But without any military force his fief never ran beyond the confines of Walvis Bay.4i* paradox of the history of this period is that the British Government in 1878 accepted the bargain in the treaty of protection of 1876 and declared Walvis Bay a British territory.5 Walvis Bay was annexed to the Cape Colony in 1884 and is today considered as not a part of Namibia. The legal point 1 Duignan and Gann (eds.) op. cit. p. 325. 2 For the manoeuvres between the British and the French in Egypt during this period, see, Ronald Robinson, John Gallagher and Alice Denny, Africa and the Victorians: The Official Mind of Imperialism. London: Macmillan and Co. 1961, chapter V. 3 ibid. p. 76; Wellington, op. cit. p. 166. 4 Wellington, op. cit. pp. 166-167. 5 ibid.

1 involved has not been fully investigated; however, that is not directly relevant to our study. The colonization of Namibia by Germany during the mid 1880s was effected due to the fact that Great Britain, the major colonial power in the area, at the beginning did not regard German colonization as a threat. In the first place, the German naval power posed no threat to the much superior navy of Great Britain; and secondly, commercially Germany was seen by British commercial circles as a free trading nation;2 and finally, the most vital colonial interest in Africa of Great Britain, at that time, centred around Egypt. In fact a conciliatory policy towards Germany's colonial interest in Southern Africa was considered important for gaining German support against the French in Egypt. The British Government also regarded AngloGerman friendship as vital for peace in Europe. But the Cape Colony administration was opposed to Germany's acquisition of territory in Southern Africa. And when the South African forces took Namibia from 1 Even at the I.C.J. it has been merely asserted, see, e.g. I.C.J. (1966) Pleadings, South West Africa Cases, Vol. 2, p. 291; also van Wyk, Sep. Op., I.C.J. Reports, 1966, p. 206. It seems there is no other legal principle known at that time on which Britain's annexation of Walvis Bay could be supported, apart from the draft protection treaty. It, however, is doubtful whether since Great Britain did not accept and fulfil the rest of the terms of the protection treaty, the obligations, she could have unilaterally opted for the rights; see, Tunguru Huaraka, "Walvis Bay and International Law", Indian Journal of International Law 18 (1978), p. 160. Furthermore, and alternatively, on the basis of the legal principles of decolonisation Great Britain cannot claim Walvis Bay to be a part of Great Britain, even if her right derived from the protection treaty is not vitiated by non-performance; and so too cannot South Africa. Modern principles of decolonisation are not determined by the illegality at the time of colonisation, but more importantly by the lack of moral justification of colonialism at the time of decolonisation, i.e. the erosion of the theoretical conceptualization of the colonial system. 2 Wi. Roger Louis, Great Britain and Germany's Lost Colonies. Oxford: Clarendon Press, 1967, p. 17. 3 Ibid., p. 19. the Germans during the First World War, they urged upon Great Britain that Namibia should not be given back again.1 To appease the Cape Colony administration Great Britain halfheartedly attempted to keep Germany out of Southern Africa. Great Britain informed Germany early in 1884 that the whole of the Namibian coast was their sphere of influence. Obviously, the German governent refused to accept this application of a British Monroe doctrine to Africa.2 This policy of "dog-in-the-manger" of Great Britain could not 3 prevent Germany from according protection to her nationals in the area. On the 1st May 1883 Franz Lderitz, a merchant of Bremen, bought from King Fredericks, the Nama King at Bethanie, the Bay of Angra Peque~a and its surroundings, which he renamed Luderitz Bay. Soon thereafter LUderitz acquired, also by deeds of sale, the whole of the coast from the mouth of the Orange River to the viq4,jty of.yalvis Bay.4 It should be pointed out that these deeds of sale did not involve the loss of sovereignty of the indigenous rulers.5 In 1884 Bismarck informed the Cape Colony Administration and Great Britain that Germany will give protection to Lderitz, provided his acquisition was not in conflict with other well founded rights.6 With Great Britain unable to offer counter claim, except on Walvis Bay, on 24 April 1884 Bismarck accorded 1uderitz and his settlement German 1 Public Records Office, London, CAB 24/3 Nov. 1917. 2 German Colonization, H.M.S.O., London, 1920. (Handbooks prepared under the direction of the Historical Section of the Foreign Office, No. 24), p. 50. 3 Keltie, op. cit. p. 191. 4 Wellington, op. cit. p. 167. 5 Charles H. Alexandrowicz, The European-African Confrontation: A Study in Treaty Making. Leiden: Sijthoff, 1973, p. 126. 6 Wellington, op. cit. p. 168; Keltie, op. cit. p. 157. protection. Germany's colonitation of Namibia had begun. Germany entered into protection treaties with the indigenous rulers. It was these protection treaties which transferred the sovereignty from the indigenous rulers to Germany.1 The northern part of Namibia has a slightly different colonization history. The broad outline of the boundaries of the new colony of was settled with Portugal in 1886 and with Great Britain, which already controlled , in 1890.2 However the German rule hardly extended beyond the southern and the central parts of the country, the part that was to be known as the Police Zone. Even in the southern and the central part of the country, the German control was only firmly established after bitter wars with the indigenous inhabitants which ended with the defeat of the indigenous inhabitants in 1907.3 It was only after these wars ofthsists Ace that Germany seriously turned her attention to the north. The north was not easily accessible and this could probably explain the preference for indirect rule. But the question of maintaining the north as the area for labour supply to the farms and mines in the south seems also plausible.4 At any rate that became the policy of the South African Administration in Namibia.5 I Alexandrowicz, op. cit., pp. 100-101, 126. 2 J.H.P. Serfontein, Namibia? London: Fokus Suid Publishers, p. 19. 3 Wellington, op. cit., pp. 201 et seq. 4 Gerhard Totemeyer, Namibia: Old and New (Traditional and Modern Leaders in Ovamboland). London: C. Hurst and Co., 1978, p. 41. 5 See infra. Chapter II.

Germany finally entered into protection treaties with the indigenous rulers of the north in 1908 in exchange for recruiting young men.to work in the south.1 Even then the traditional administration was not disturbed. However, the complete subjugation of the north was ultimately carried out by the South African Government; when finally the two most powerful rulers in the north, Handume and Ipumbu, were militarily defeated in 1917 and 1932 respectively.2 1 See, e.g. TYtemeyer, op. cit. pp. 41 et seq. 2 Ibid., p. 44, see also infra. Chapter II.

CHAPTER I THE ESTABLISHMENT OF THE MANDATES SYSTEM In the endeavour to decolonize Namibia interiational law has been subjected to the most severe test as to its reliability, adaptability and applicability.. For by and large the international community has attempted to resolve the Namibian question on the bas'iof' prInciples and rules which have their origins in the period before the First World War. The Pre-First World War period was an era of colonization and the Post-Second World War is an era of decolonization. The mandates system of the League of Nations stands in between the two. Consequently the international law principles that emerged reflect the conflicting interests. Thus, for a long time the international conmunityI could not, in the question of Namibia, see beyond these embryonic principles of decolonization in the mandates system of the League of Nations. The understanding of the origin and conceptualization of the mandates system of the League of Nations as an institution, particularly, of the class 'C' type to which Namibia belonged, is of vital importance for the resolution of the Namibian question by international organisations. 1 The UN until 1966 felt restrained by the provisions of the Mandate for South West Africa; and the I.C.J. until 1971 interpreted the mandate agreement and the Covenant of the League of Nations rather conservatively. Regrettably this is often not perceived, and the principles of the mandates system are viewed as if fossilized in the period of the League of Nations and not amenable to-adaptation to the decolonization period of the United Nations. At the end of the First World War, war-weary Europe sought a formula which would prevent all future wars. And, particularly President Wilson in his search for lasting peace, was determined to discard old world diplomacy and to adopt new diplomacy.. In this regard, old world diplomacy came into collision with new diplomacy. It was in this conflict between old world diplomacy of secret treaties, balances of power and of war booties, and new diplomacy of international security that the mandates system of theLeague of Nations arose. This conflict represented the overall superstructure which embodied many various issues which had an immediate impact on the establishhAt as well as influencing the concept of the mandates system. However, the following issues appear more prominent: i) internal political struggle in the various belligerent countries; Li) inter-ally contradictions; iii) negotiations at the Paris Peace Conference. As will emerge, the class 'C'- mandates of the League of Nations was neither a triumph for the new diplomacy as championed by President Wilson nor a victory for the old world's secret treaties diplomacy as championed by the British colonial premiers and supported by Lloyd George and Clemenceau. Both sides claimed victory.

I- INTERNAL POLITICAL STRUGGLE The war of 1914-1918 was% the first global war and the longest up to then. By late 1916 and early 1917 the war-weary populations of the belligerent countries started to agitate for war aims which will ensure lasting peace. This led, particularly, in the Allied countries to the "politics of war aims".1 Thus the truce at the home fronts was broken, and movements outside the war-cabinets, for example, labour unions, socialists, liberals and pacifists, started to challenge the warcabinets in the Allied countries. One striking factor is that there does not seem to have been articulated dissenting movements in the Southern Dominions, that is, New Zealand, Australia and the . This factor helps to explain, in part, the uncompromising annexationisttisiti8f of the British colonial premiers. The causes of the war the old diplomacy was blamed for were: secret diplomacy, balance of power theories, armaments race, trade war, colonial rivalries and annexation of conquered territories. To combat these the new diplomacy used phrases like "community of power", $$open diplomacy", "disarmament", "free trade" and "self-determination". The war of words that erupted as the Allied Governments and their- opposition, either in the national assemblies, or outside, struggled to capture the minds and hearts of the people played a significant part in the establishment of the mandates system of the League of Nations, as well as heightening its principles. 1 Arno J. Mayer, Political Origins of the New Diplomacy, 1917-1918. New Haven: Yale University Press, 1959, p. 21. The discontent of the various movements in the Allied countries about the war appeared very early during the war, but in a rather muted manner, and increased with the war. After President Wilson's Fourteen Points and the Russian Bolshevik Revolution and their "peace without victory" of Brest-LitovskI the Allied Governments were gravely disturbed by the demand for war aims. The complexity of the causes of the war cannot be denied; but contemporaneously some factors appeared more predominant. Most publicists to the left of the Allied governments at that time considered that colonial competition and exclusion of foreign trade from colonial territories had caused great amount of international tension and thus created the atmosphere that led to the war.2 As a result the labourites, liberals, humanitarians and socialists during the war agitated for "no indemnities", "$no annexation", and "self-determinalin"p n, qmention those points that had direct relevancy to the establishment of the mandates system of the League of Nations, as well as conceptualization of its central principles.3 The politics of war aims was more intense in Great Britain than in the other Allied countries. In Great Britain the Independent Labour Party in April 1917 came out against the old diplomacy of "spoils of war" and proclaimed that "annexation of territory and people by force of arms is robbery and aggression".4 1 Ibid. p. 293. 2 See, Pitman B. Potter, "Origin of the System of Mandates under the League of Nations", American Political Science Review, vol. XVI, No. 4 (1922) p. 563. 3 Win. Roger Louis, "African Origins of the Mandates Idea", International Organisation 19 (1965), p. 21. 4 Ernest B. Haas, "The Reconciliation of Conflicting Colonial Policy Aims: Acceptance of the League of Nations Mandate System". International Organisation 6 (1952) p. 521, at p. 523.

15 And the Labour Party,1 no; to be out-done by its rival, published its memorandum on war aims, where it stated: "The British Labour Movement disclaims all sympathy with the imperialist idea that these (colonies) should form the booty of'any nation, should be exploited for the profit of the capitalist, or should be used for the 2 promotion of the militarist aims of Governments ...".2 In France the pressure for liberal and humanitarian war aims, like in Great Britain, was less intense before 1917. However, with the formation of Clemenceau's government in the autumn of 1917 which was less conciliatory to the socialists, and partly as a result of the refusal of passports to socialists who. wanted to attend the Stockholm Internationalist Conference, the political truce ended. But the internal conflict in the Section franjaise de l'Internationale Ouvriere (SFIO) between the minoritaires and majoritarians weakened the socialist demand for liberal S3 war..ai3.3 In November 1917 the Russian Revolution culminated in the assumption of state power by the Bolsheviks. The Bolshevik Government turned out to be uncompromisingly against 'imperialistic war'. The Soviet Government issued a 'Peace Decree' in which it proposed the immediate opening of negotiations for a just and democratic peace.4 The Allied Governments, to judge by the newspapers which expressed the official views, were very disturbed by the Soviet Peace Decree. Le Temps 1 The Labour Party was the official political organ of the Labour Unions; whereas the Independent Labour Party was made up of radical and dissertant labourites who broke away from the main political organ. The ILP was much smaller and weak politically both in Parliament and in the labour movement. But it was more radical than the LP and presented radical war aims. 2 Win. Roger Louis, Great Britain and Germany's Lost Colonies 1914-1919. Oxford: Clarendon Press, 1967, p. 91. 3 For a detailed discussion on this, see Mayer, op. cit. Chapter 4. 4 Ibid. p. 262. attacked the Soviet peace programme for being "as vague and perfidious as though it had been drawn pup in the Wilhelmstrasse". 1 The Times of London stated: "It would be undignified for the Allies to expend words,of probation on this step ... They know that the Maximalists are a band of anarchists and fanatics who have seized power for the moment ... They know that Lenin and several of his confederates are advinturers of GermanJewish blood and in German pay ... In no doubt the inmediate concern, in the Allied countries, to the Bolshevik Revolution was to maintain the fighting moral of the soldiers. Scholars on the subject have shown that the Soviet Peace Decree was more Wilsonian in its language and inspiration than Marxist.3 In the Allied countries, particularly in Great Britain, the politics of war aims became more intensive towards the end of 1917, and the war-cabinet could no longer ignore the demand of the "forces of movement" to use Mayerls phrase.4 Furthermore, in jreatritain, the latter part of 1917 saw threatening labour unrest. At that time the Labour Movement in Britain was not represented in the war- cabinet of Lloyd George. Arthur Hederson who represented the Labour Movement in the war-cabinet, like Albert Thomas in France, had to resign his cabinet portfolio on the issue of the International Socialist Conference in Stockholm. Therefore, the government of Lloyd George anticipated serious labour unrest. 1 Ibid., p. 277. 2 The Times (London), November 23, 1917. 3 Edward H. Carr, The Bolshevik Revolution: 1917-1923, 3 vols. London: Macmillan, 1950-1953, vol. 3, p. 10. 4 Mayer, op. cit., refers to the various groups on the left of the Allied war- cabinets as "forces of movement"; and to those that supported and which were represented in the war-cabinets as "forces of order".

When Lloyd George addressed the Trade Union Congress on 5 January, 1918, he had, therefore, wide ranging demands for liberal war ims to appease. But more important, of course, it was his audience that he wanted to placate. And he did. Indeed, on the question under consideration Lloyd George was more specific than President Wilson; he denounced capitalistic exploitation of colonial territories and proclaimed the principle of self-determination for the German colonies. He stated: "With regard to the German colonies, I have repeatedly declared that they are held at the disposal of a conference whose decision must have primary regard to the wishes and interests of the native inhabitants of such colonies ... The governing consideration, therefore, in all these cases must be that the inhabitants should be placed under the control of an Administration, acceptable to themselves, one of whose main purpose will be to prevent their exploitation for the benefit of European Capitalists or Governments. The natives live in their various tribal organisations under chiefs and ounc s who are competent to consult and speak for tmr tribes and members, and thus to represent their wishes and interests in regard to their disposal. The general principle of national self-determination is therefore as applicable in their cases as in those of occupied European territories."l It appears that when Lloyd George referred to the competency of the indigenous inhabitants in the German colonies to determine their future, his main concern was to prevent the return of these colonies to Germany. It seems the reference to 'self-determination' was used in this sense: that is, to choose a colonial master. But the general usage, even at that time, of the concept of 'self-determination' was much broader and had content of nationalism and freedom. Whereas, Lloyd George's usage of 'self-determination' was an attempt to give the concept of 'self1 G. Loves Dickson, Documents and Statements Relating to Peace Proposals and War Aims (Dec. 1916 - Nov. 1918). London, 1919, Speech of Mr. Lloyd George, 5 January 1918, pp. 113-114. The passage on German colonies, according to Roger Louis, op. cit. p. 96, was a slightly modified version of Smuts' draft on "War Aims" of 3 January, 1918. determination' a 'colonization' connotation. However, as it finally emerged and found its way into the mandates system, the concept of 'selfdetermination' had a distinct decolonization meaning. On the other hand President Wilson's statement of three days later was, though imprecise on the question of German colonies, a clear departure from the old diplomacy; and it envisaged a greater participation of the colonized people in the determination of their future. The fifth of the Fourteen Points read: "A free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interest of the populations concerned must have equal weight with the equitable cltims of theGovernment whose title is to be determined". Thus, at that time, January 1918, in the war of words, Lloyd George was more than what was to be known as Wilsonian. Lloyd George having been subjected to more vociferous internal demands jr literal and humanitarian war aims; the eastern front having collapsed after the Russian Revolution and thus co-operation with the United States rating as top priority; had to be more precise so as to retain the support of the labour movement, maintained the morale of those at the fronts, and above all maintained the friendship of and support from the United States. Although for the sake of appeasing the Labour Movement Lloyd George did not specifically demand outright return of AlsaceLorraine to. France, nevertheless, Clemenceau endorsed the British war aims.2 The British Government did not intend to carry out what Lloyd George proclaimed in his war aims of January 1918. For steps 1 Dickson, op. cit., p. 116 at p. 119. 2 Mayer, op. cit., p. 326. were taken imediately to assure the Southern Dominions that the German colonies they had conquered would remain in the British Empire, and the governments of the Southern Dominions were informed accordingly. The publication by the British Foreign Office of 'Blue Books'2 depicting German atrocities in the colonies was thus part of the British Government's devices to ensure that the German colonies were not returned but retained in the British Empire. But the colonial ambitions of the British Empire and others were thwarted. The war aims of 'no booty', 'no annexation', and 'selfdetermination' generated a vigorous enthusiastic and popular support among the movements outside the war- cabinets of the Allied Powers. And more important they found a resolute champion in President Wilson. Thus, despite the fact, as it emerged from our analysis above, that the war aims of the Allied governments were, above-fll, aitt at placating the restive labour movements, refuting Soviet charges of fighting imperialistic war, and strengthening American friendship and support, nevertheless, they developed a momentum of their own which could not be ignored at the peace conference. It was with this weapon of liberal humanitarian principles that President Wilson met the challenge of the annexationists; and at least blunted it. It is our contention that these liberal humanitarian principles conceptualize the 'non-colonization' content in the mandates system of the League of Nations. This vital point, which is the germinal concept of decolonization, is often missed. And the impact of the war aims is I Wn. Roger Louis, op. cit., pp. 97-99. 2 e.g. Report on the Natives of South West Africa and their Treatment by Germany, (Blue Book) August 1918, H.M.S.O., Cd. 9146. considered only as humanitarianism which culminated in the concept of "sacred trust of civilization" and "well-being of the inhabitants". While this purely philanthropic element in the mandate system cannot be ignored; considered from historical origin, noting the internal political struggle in the Allied countries, and also taking the mandates system as a whole including class 'A' type into account, the concept of self-determination in this system cannot be ruled out. From this conception the basic principle of the mandates system - international accountability - will be seen that it was not only concerned with the "well-being of the inhabitants" but had also a progressing element of self-determination; that is, the modern conceptualization of decolonization. Thus from our analysis the politics of the war aims played a very important role' in shaping the 'non-colonization' pr'ncipl of the mandates system. And this is the central principle, rather than pure humanitarianism, which in the eras of the League of Nations and the United Nations prevented formal colonization attempts of South Africa. 2 INTER-ALLY CONTRADICTIONS At the Paris Peace Conference the point of disagreement as far as German colonies were concerned was not about the terms to be imposed upon Germany. But the crisis arose out of a deep-seated and often bitter disagreement among the Allies themselves as to the disposition I of the colonies. Thus the question of national security, territorial rivalries and conflicting economic interests jointly or singularly, 1 see, R.S. Baker, What Wilson did at Paris. New York: Doubleday, 1922, Chapter 3.

.21 and in combination with other factors, contributed to the establishment of the mandates system of the League of Nations. Lord Milner,-the British Colonial Secretary at the time, admitted openly afterwards that the implementation of the mandates system was accompanied by a "return of the old rivalries and ambitions". i) Mutual Mistrust (National Security) The security in Europe before the First World War was based on balance of power, which was a response to mutual mistrust of the powers. This mutual mistrust and suspicion gave rise to secret treaties. Although the French and the British were allies in the war, mutual mistrust was nevertheless discernible in their dealings with each other. Of course, to the British thej'French wgre th.1r historical colonial enemy; and at the close of the war France was the only other strong European power with colonial ambition. As a result of this mutual mistrust the British position at the Conference was to ensure that France did not get a better deal than them. Roger Louis noted a picturesque description of the British policy at the time: "Unless 1 Wm. Roger Louis, "The United Kingdom and the beginning of the mandates system, 1919-1922", International Organisation, Vol. 23, (1969), p. 73, at pp. 85-86; At the British war cabinet the point was emphasized by Chamberlain as follows: "As regards the British Empire, he was no by means anxious that we should extend our responsibilities, or invite the jealousy involved in great extensions of British territory. But he was clear that, whatever happened, we could not surrender to anyone, either the South Pacific Islands or German South-West Africa. With regard to Mesopotamia, Palestine, and , the question resolved itself into one of the security of the British Empire and of its Allies . Public Records Office, London, CAB 23/7, War Cabinet (with Prime Ministers of Dominions) 459 (9), p. 65 at p. 67. the French are themselves put in a glass (mandated) house somewhere they will almost certainly amuse themselves by throwing stones at ou'r mandated house, whenever they are annoyed with us or want something from us".' This mutual mistrust and pure jealousy meant that either both Great Britain and France would annex the territories they had conquered as colonies, or both would retain the territories under some international arrangements. The main point the British colonial premiers emphasized more than others, in their demands for annexation, was that of their security. Australia demanded to be allowed to annex New Guinea; and New Zealand and South Africa supported Australia, and also put forward their own claims, again emphasizing the arguments of security. The British colonial premiers were very adamant that the territories they conquered they must be allowed to annex; bht so too was President Wilson equally determined that grabbing of territories should not be allowed as that would compromise the League of Nations.2 Out of these opposing positions a compromise was finally struck and class 'C' mandates emerged. The class 'C" mandates was the category of internationalization of dependent territories which was closest to actual colonies. The question of national security influenced the class 'C' mandates also from a different angle. In this case it was the mutual distrust between the United States and Japan.3 Admittedly, President Wilson 1 Wm. Roger Louis, "The United Kingdom and the beginning of the mandates", loc. cit., p. 85. 2 see, Lord Hankey, The Supreme Control at Paris Peace Conference, 1919. London: George Allen and Unwin, 1963, Chapter VII. 3 Wi. Roger Louis, "The United Kingdom and the beginning of the mandates", loc. cit., pp. 80-81.

23 was determined to establish a system of international security rather than leave peace and security to the old diplomacy of secret treaties and balance of power. But apart from that the question of the security of the United States was also a factor. President Wilson expressed concern in respect of the islands in the North Pacific which Japan held. These islands lie between Hawaii and the Philippines (at that time an American sphere of influence) and they are quite close to Hawaii. Thus, it was considered that if Japan turned these islands into naval bases the security of the United States would be endangered.1 President Wilson saw the mandates system, therefore, as safeguards. The demilitarized clause in both class 'B' and class 'C'tmandates is due in some way to this factor. ii) Territorial Rivalries At the end of the war, the Allied and Associated Powers were faced with the problem of the disposal of the former German colonies in Africa - and in the Pacific and of the non-Turkish provinces of the Ottoman Empire. During the war, as a result of the internal struggle for power politics of war-aims - in the Allied countries, the Allied governments were forced to proclaim liberal and humanitarian war aims. But at the same time these territories were under military occupation and administration of the Allied forces. The occupations corresponded to the spheres of influence the Allied Powers had agreed to among themselves in their secret treaties. 1 David H. Miller, "The Origin of the Mandates System", Foreign Affairs, Vol. VI, (1928), p. 277 at p. 287.

The Sykes-Picot secret agreement of 1916 divided the Middle East into British andFrench spheres of influence; and by secret agreements of 30 August, 1914 and 4 March, 1916 Great Britain and France agreed on the division between themselves of the Cameroons and . Secret treaties between Great Britain and Japan in 1915 and between Great Britain, France and Japan in 1917 recognised Japan's claims to the German Pacific islands north of the equator and the British Empire's claims to those south of the equator. Although Italy was not promised any specific territory, however, Great Britain and France agreed by the Treatyof London of 26 April, 1915, that Italy would be compensated in Africa if the other two powers should increase their possessions there I as the result of the war. Thus long before the liberal and humanitarian war aims became inevitable for placating restive and rising labour vements, liberal and socialist elements, the Allied Powers had already crystallized their war aims based on territorial advantage in their secret treaties. Under the mandates system France and Great Britain considered themselves not bound by their promise to Italy, since the territories they acquired were not for them but for the international community. The Italians, in what is an apt illustration of the inter-ally territorial rivalries retorted: 1 see generally, Rayford W. Logan, The African Mandates in World Politics. Washington: Public Affair Press, 1948. 25 "... the Italian point of view was extremely simple. Italy would readily accept whatever principle might be adopted, provided they were equittably applied and also provided1 that she could participate in the work of civilization."" It was not only the former German colonies which were claimed; but there was also a desire to make overall re-adjustments of the colonies, particularly those in Africa. Italy, for instance, apart from the areas in north and north-east Africa which she claimed, wanted also to be given Angola, or an understanding to be reached that Angola would pass to her if Portugal had to relinquish it. South Africa on the other hand was also interested in Southern , and Belgium wanted Kabinda. The colonial dream of most British colonial officials was the 'Cape to Road', the British Government was thus determined that the part of considered important for the should not pass into foreign hands. Portugal was not to be left out. Despite the absence of any spicial consideration, secret treaties or military occupation, Portugal, nevertheless, claimed that she should benefit from the destruction of German African Empire. And she acquired the on the argument that it was taken from her by force by Germany. It appears that at the Paris Peace Conference as a result of territorial rivalries of the Allied Powers a "second " was attempted. 1 David Lloyd George, The Truth about the Peace Treaties, 2 vols., London, Gollancz, 1938, vol. I, p. 534; and Italy kept up her claims for colonies long after the Peace Treaties, and when Germany entered the League and put up claims to be made a mandatory, Italy stated that her claims came first. For the discussion on territorial rivalries during the League, particularly by Germany and Italy, see, Evans Lewin, "German and Italian interest in Africa", Foreign Affairs, Vol. 5, (New York) (Oct. 1926 - July 1927), p. 472.

Lo Only the United States did not have a strong territorial ambition. Though, G.L. Beer, the American expert on colonial matters, tried very hard, and supported by France and Great Britain, to secure a mandate for the United States. However, Wilson in demonstration of the new diplomacy declined any offer of mandates until he had obtained the approval of the American people.1 From our consideration it appears that the principle of international accountability established for the former German colonies was considered a factor, among other things, that Would diminish the risks of war by eliminating territorial (colonial) rivalries among the powers. The class 'C' mandates which were mandates "pared to the bone" 2 is to some extent explainable by lack of serious territorial rivalries in the areas where these colonies were situated. iii) Conflicting Economic Interests The exclusion of the open door policy, which meant equal economic opportunity,3 from class 'C' mandates but included in the other two types was due to conflicting economic interests among the Allied and Associated Powers. But generally like territorial rivalries, conflicting economic interests was one of the important factors which 1 For an extensive consideration of this point see, Wm. Roger Louis, "The United States and the African Peace Settlement of 1919: The Pilgrimage of George Louis Beer", Journal of African History, Vol. 4, (1963), p. 413. 2 Paul Birdsall, Versailles Twenty Years After. London: Allen and Unwin, 1941, p. 67 at p. 67. 3 see generally, Benjamin Gerig, The Open Door and the Mandates System. London: Allen and Unwin, 1930.

27 contributed to the establishment of the mandates system of the League of Nations. Open door policy tended to lessen acute territorial disputes; for colonies were sought for commerce and as sources of raw materials. The open door policy was well known to the powers at the time of the Paris Peace Conference. It had been applied, though not with much success, in the Congo Basin and in Morocco as a result of the Berlin Act 1885 and the Algeciras Act 1906, respectively. The open door policy caused serious objections in two areas: the Middle East where prospect of oil exploitation heightened the interests, and in the South Pacific islands where Australia saw it as a threat to her "all white" policy. Thus, as a result of persistent refusal of Australia and New Zealand, in support of their "all white" policy, with regard to class 'C' mandates the door was completely closed.44 ' It is our considered view that the issues discussed above were the significant factors in the establishment of the mandates system. The liberal and humanitarian war aims proclaimed by the Allied Powers (and thus liberal idealism in Europe and America) do not appear to have been the sole2 factor that led to the actual establishment of the mandates systemsi The most important factors in the actual establishment of the mandates system appear to have been territorial and economic 1 See, Edward Meal Earle, "The Turkish Petroleum - A Study in Oleaginous Diplomacy", Political Science Quarterly, Vol. 39, (1924), p. 265. 2 cf. H. Duncan Hall, Mandates, Dependencies and Trusteeship. London: Stevens & Sons, For Carnegie Endowment for International Peace, 1948; and also Wim. Roger Louis, "The United Kingdom and the Beginning of the Mandates System 1919-1922", International Organisation, Vol. 23 (1969), p. 73. rivalries and national security. It was, for example, emphasized in the British cabinet that it "should consider very carefully the proposal for the internationalization of the former German colonies in Africa,. which would have the effect of preventing the creation of a naval and military menace, while at the same time the most valuable raw materitls would be available for the factories of the world".L But once the system had to be established, the liberal humanitarian principles provided the content and the spirit to the system. Thus, self-determination, at that time a notion of political and perhaps moral significance rather than legal significance, found its immediate roots in the liberal war aims. It is from this historical background that it is contented that self-determination which was one of the war aims of the Allied and Associated Powers cannot be fossilized in the era of the League of Nations. As a principle, though humanitarian in content at that time than legal, had dynamic conteqlk An&'Its dynamism was contemporaneously equally realized, for example, "The Secretary of State for the Colonies uttered a caveat against laying too much stress on the principle of selfdetermination. It was not his province to say what. the effect would be in India or Egypt, but there were some of the Crown Colonies which would certainly be affected as example, he mentioned Cyprus, where agitation has long been carried out for union with Greece ..."* The Declaration on the Granting of Independence to colonial countries I A.J. Balfour, The Secretary of State for Foreign Affairs, Public Records Office, London, CAB 23/4, War Cabinet 279(3). Minutes of a meeting held on Wednesday, 21 November 1917, p. 190. 2 Public Records Office, London, CAB 23/5, War Cabinet 313(3), Minutes of a meeting held on 3 January 1918, p. 13. and peoples of 19601 and the subsequent development2 had given concrete legal meaning to the principle of self-determination and it is today the basic legal principle of decolonization. 3 NEGOTIATIONS AT THE PARIS PEACE CONFERENCE Despite the liberal and humanitarian war aims when it came to actual negotiations the conference almost foundered on the issue of the disposal of the former German colonies. This was one of the issues on which the American and European (including British Empire) views differed greatly.3 Paradoxically during the war there appeared to be agreement on this issue. i) International Accountability or Annexation The actual conflict on the question of the former German colonies was fought on the cleavage of international accountability as opposed to complete annexation. President Wilson in his Fourteen Points did not envisage a principle of international accountability for the former German colonies, 1 General Assembly Resolution 1514 (XV), 14 December 1960. 2 e.g. General Assembly Resolutions 1541 (XV), 14 December 1960; 1654 (XVI), 27 November 1961; 1745 (XVI), 23 February 1962. See also infra Chapter IV, Sec. 3. 3 H.W.V. Temperley, (ed.) A History of the Peace Conference of Paris, 6 vols. London: Frowde, Hodder and Stoughton, 1920 - 1924, Vol. 2, p. 26; Charles Seymour, (ed.) The Intimate Papers of Colonel House, 4 vols. New York: Houghton Hifflin, 1926 - 1928, Vol. 4, p. 299. but fair distribution.1 But by the time he was crossing the Atlantic to Europe he had a clear picture about the former German colonies. He wanted these territories to be entrusted to the League of Nations and to be administered on behalf of the League by small nations, such as Denmark.2 On the other hand, despite the liberal colonial statements during the war, such as Lloyd George's statement of 5 January, 1918, the Allied Powers had already settled the question of the former German colonies in their secret agreements. Their task then, particularly the British, was to explain away the liberal humanitarian proclamations. General Smuts in his "Practical Suggestion" had presented a strong case for mandates system for the former territories and peoples split off from Austria, the Ottoman Empire and Russia. But he ruled out applicability of the mandates system to the formet rmanifolones "inhabited by barbarians".3 The British were in a dilemma. They desired to adhere to two, on this issue, conflicting policies. On the one hand for maintaining the British Empire they had to support the uncompromising annexationist position of the Southern Dominions. And on the other hand, for her future security, and due to a strong pressure from Canada, Great Britain considered American friendship as of vital importance. The position of President Wilson on the question of the former German colonies had become very clear. In his second draft (or first Paris draft of 10 January) he ruled out annexation of these colonies and 1 Potter, loc. cit., p. 567. 2 Birdsall, op. cit., pp. 41-42. 3 General J. Smuts, The League of Nations: A Practical Suggestion. London: Hodder and Stoughton, 1918. proposed that the "League of Nations should be regarded as the residuary trustee with sovereign rights of ultimate disposal or of continued administration in accordance with certain fundamental principles ... and this reversion and control shall exclude all rights or privileges of annexation on the part of any Power". Thus, paradoxically, the first Paris draft of Wilson incorporated Smuts' idea of the mandates system, whereas the official British drafts omitted it.2 One important fact to note is that Wilson in his first Paris draft went much further than Smuts and extended the mandates system to all former German colonies. As can be expected Wilson's first Paris draft caused anxiety among the annexationists. The strategy adopted by the Southern Dominions, the annexationists, was to dispose of the question of the former German colonies before other major issues and more important before the eIpblis4%ent of the League. President Wilson had indicated that the question of territorial settlement in Europe will be discussed first, as this was more important 3 for peace in Europe; it had also become apparent that President Wilson will have to be the chairman of the committee to deal with the establishment of the League of Nations. Consequently, the annexationists decided to act quickly. They achieved their aim by a simple ploy of 'first come first served'. Lloyd George suggested that all delegates with territorial claims should be asked to submit their claims in writing within ten days. Of course, I David Hunter Miller, The Drafting of the Covenant, 2 vols. New York: G.P. Putman, 1928, Vol. 2, p. 65 at p. 67. 2 ibid., pp. 61, 106. 3 Foreign Relations of the United States, Paris Peace Conference 1919, Government Printing Office, Washington, 1943, vol. 3, p. 771. 4 ibid., vol. 3, p. 700. the claims of the Southern Dominions were the first to be submitted as these had been ready for the past two years. Hence it was easy to convince Wilson of the equity of first come first served.I ii) Smuts' Compromise Resolution By 27 January, 1919 the Paris Peace Conference had become deadlocked over the issue of former German colonies; and it seemed likely that it would break-up in deadlock. The "whole thing had gone to to2 pot".2 President Wilson considered annexation of some of the former German colonies as a serious compromise on the whole idea of the League of Nations. He stated at a meeting of the Council of Ten: "There must be a League of Nations, and they could not return to the status quo ante. The League of Nations would be a laughing stock if it were not invested with this quality of trusteeship".3 l r General Smuts was suitably placed to find an acceptable compromise formula. He spent the greater part of the war years in London as the representative of the Union of South Africa in the war cabinet; and he became involved in the Round Table discussions.4 Thus, Smuts, though a settler-colonialist, had nevertheless been exposed to somewhat progressive views on colonial matters. Furthermore, General Smuts was a 1 Birdsall, op. cit., pp. 59-60. 2 Seymour, op. cit., vol. 4, p. 310. 3 Foreign Relations of the U.S., op. cit., Vol. 3, p. 766. 4 A group of experts on colonial matters met occasionally and discussed colonial matters, and they published their papers in a journal with the same name. It is thus curious for General Smuts to assure Pitman B. Potter that his (Smuts') views on the mandates system were not influenced by anybody. See, Smuts to Potter, dated, 26 February, 1923, , in Pitman B. Potter, Correspondence on the Origin 'of the Mandates System, 1922 - 1928. Bound Pamphlets on Mandates. UN Library, Geneva. great believer in Anglo-American Fax; and as a distinguished soldier he saw the future of the British Empire as better secured by maintaining American friendship. In his pamphlet, "Practical Suggestion", Smuts had shown that he appreciated the fact that territorial rivalries had contributed to the outbreak of the war, and, therefore, proposed a mandates system.' But Smuts was also a settler- colonialist, and for that reason he was prepared to sacrifice the ideal of the mandates system for outright annexation. General Smuts in his compromise resolution divided the mandates into three categories; these came to be known as class A, B, and C. On class 'C', the thinnest of the mandates, the compromise resolution provided: "Finally, they consider that there are territories, such as South-West Africa and certain of the Islands in the South Pacific which, owing to the sparseness of tlheopul~#Aon, or their small size, or their remoteness from the centres of civilization, or their geographical contiguity to the mandatory state, and other circumstances, can be best administered under the laws of the mandatory as integral portions thereof, subject to the safeguards above-mentioned in the interest of the indigenous population. In every case of mandate, the mandatory state shall render to the League of Nations an annual report tn reference to the territory committed to its charge." General Smuts changed his views, and unlike in the "Practical Suggestion" he extended the mandates system, though 'pared to the bone', to the former German colonies occupied and claimed by the Southern Dominions. This compromise resolution of Smuts with minor amendments became Article 22 of the Covenant of the League of Nations. General Smuts' compromise resolution also distributed these colonies to the Southern Dominions which claimed them. For it named and described the territory and selected the mandatory state on the ground of contiguity. 1 Foreign Relations of the United States, op. cit., Vol. 3, p. 753.

The compromise resolution of General Smuts satisfied both sides, perhaps more so the annexationists than President Wilson. The New York Times considered that President Wilson had "won only half a battle The Paris Peace Conference may be considered to have marked the end of old world diplomacy. President Wilson was very emphatic in his rejection of the old world diplomacy: "He would not admit that there was any historical precedent for the work now in hand; least of all should the Congress of Vienna be cited as such".2 But most of the plenipotentiaries at the conference were of the old order and as a result old world diplomacy of intrigues and secret negotiations was reflected at the conference.3 The compromise resolution of General Smuts which became Article 22 of the Covenant was thus a product of its time. But as we indicated above, the mandates system which was established by this compromise resolution drewliks coffbent from the liberal and humanitarian war aims. And thus the germinal concept of decolonization was firmly endorsed in international organisations. 1 31 January, 1919. 2 Foreign Relations of the United States, op. cit., Vol. 3, p. 753. 3 Oswald Garrison Villard, Fighting Years: Memoirs of a Liberal Editor. New York: Harcourt Brace & Co., 1939, p. 451. Some officials in the American delegation felt that President Wilson compromised on principles; and some resigned. One official in his resignation letter stated: "I am sorry you did not fight our fight to a finish ...". Ibid., p. 452.

35 CHAPTER II THE MANDATE FOR SOUTH WEST AFRICA IN OPERATION 1 THE LEGAL FRAMEWORK Article 22 of the Covenant of the League of Nations set out the legal framework of the mandates system. This article founded a new regime of dependency in international law hitherto unknown. The basic legal principles were that: i) the well-being and development of such peoples form a sacred trust of civilization; and ii) the performance of this trust shall be supervised by the League of Nations. These basic principles were embodied in the various specific mandates agreements. The mandates were grouped into three classes of hierarchical decolonizational order. Namely, the 'A' mandates which were considered as having reached a stage of development where their existence as independent nations can be recognised; the 'B' mandates which were at such a stage of .development that the mandatories, unlike in the 'A' class 1 Article 22, para 1, of the Covenant of the League of Nations. where only administrative advice and assistance was expected from the mandatories, were responsible for the administration; and, lastly, the 'C' class which, due to geographical contiguity and other factors to be considered shortly, could best be administered as an integral portion of the mandatory's territory.1 Paragraph six of Article 22 of the Covenant embodied the class 'C' mandates. In this paragraph there are four distinctive features: (L) sparseness of the population; (ii) smallness in size of the territory; (iii) remoteness from the centres of civilization; and (iv) contiguity to the mandatory.2 All these features of class 'C' mandates were tailor-made to fit the claims of the Southern Dominions. As distinctive features from the other classes of mandates, particularly class 'B', they were artificial. All, except "contiguity", applied in one or other of the territories placed in class #B And "contiguity" did not apply to the islands north of the equator which were given to Japan and yet these islands were placed under class 'C'. Also some of the class 'B' mandates were administered as one unit with the adjoining colonies, for example, British Togoland with the Gold Coast. It is our view that these features did not add anything to the concept of the mandates system; that is, conceptually class 'C' mandates cannot be differentiated from the others, particularly class 'B' by these features. The distinction lies in the annexationist claims put forward by the Southern Dominions, and not in the legal substance of the regime created. There was however, one important difference between class 'B' and class 'C' mandates, and that was in the clause relating to administration. 1 Ibid., paras. 4, 5, 6. 2 Ibid., para. 6.

In the case of the class 'C' mandates they were to be "administered under the laws of the mandatory state as integral portions thereof".1 It was this clause that was the thin wedge of annexation. We have pointed out in the preceeding chapter that Australia fought for annexation as the only sure way to safeguard her "all white Australia" policy. Otherwise she saw the open door policy as a threat to that policy. Therefore, General Smuts had to formulate his compromise resolution in such a mariner so as to exclude the open door policy. From the South African point of view it was also administratively important that the same laws applied in the mandated territory. For it should be noted that even at that time in South Africa was already an accepted government policy.2 Thus, if the mandate of South-West Africa was administered under different and non- discriminatory laws that would have been in direct conflict with,41e "naTVe" policy of the Government of South Africa. Although, as we pointed out above, the class 'C' mandates was a very diluted form of trusteeship, the fact remained that it was a departure from pure colonization. 1 Foreign Relations of the United States, Paris Peace Conference, 1919. Washington: Government Printing Office, Vol. 3, p. 796. (The original resolution of Smuts). 2 See, e.g. South Africa Act, 1909, 9 Edward VII, ss. 35, 44; the policy of non-equality in Church and in State of the former South African Republic has been maintained and is the basis of the apartheid system; see H.J. May, The South African Constitution, 3rd Edition, Cape Town: Juta & Co., 1955, p. 152; see also Gilbert W.T. Dold and C.P. Joubert, The Union of South Africa: The Development of its Laws and Constitution. London: Stevens & Sons, 1955, Chap. II.

38 The principle of international accountability, even in the most watered down class IC' mandates, was the basic legal difference between ordinary colonies and mandated territories. This difference was constantly emphasized in the League of Nations. The President of the Council of the League set the pattern when in his opening speech to the first session, stated: "The authors of the Covenant, in adopting the terms of Article 22, decided that the League should attempt a very bold, wise and generous experiment in colonial administration".' And the Chairman of the Permanent Mandates Commission, Marquis Theodoli, emphasized the non-colonial character, in the classical sense, of the mandates system in his observation with regard to the Bondelzwarts2 incident; he stated: "As far as the mandated territories are concerned the Covenant of the League of Nations, in general and A& Article 22 in particular has profoundly and - uhstantially altered colonial law and colonial administration"3 Thus, by applying these principles the League of Nations, through the Permanent Mandates Commission, attempted to formulate new international law principles relating to dependent territories. As one daily newspaper put it, the mandates system marked an advance "from a predatory to a protective policy".4 But, of course, the new principles, did not apply to all the dependent territories. In practice it applied only to the mandated territories. As far as the mandates were concerned the Permanent Mandates Commission, which was conceived as a "judicial 1 Council, Min., 1st Sess. (4-8 October 1921), p. 1, C. 416 M. 296. 194 VI. 2 The Bondelzwarts uprising and its suppression will be discussed immediately below. 3 P.M.C. Report on the Bondelzwarts Rebellion, A47, 1923, VI C.522, 1923 VI, Annex. It is worthwhile to note that Thiodoli was responding to a colteague who expressed the view that "a rebellion and its suppression are unfortunately not uncommon incident of colonial administration". Ibid. 4 The Manchester Guardian, 29 January, 1920. more than an administrative body",1 secured the observance of the terms of the mandates by constantly probing and airing any infraction, however minor it may appear. However, an evaluation of the supervisory functions of the Permanent Mandates Comission must be viewed in the light of certain constraining factors inherent in that organ. First, the Permanent Mandates Commission was manned by persons who had acquired their experience on dependent territories and peoples during an era of outright coloni2 zation; and, in fact, most of them were former colonial administrators. 1 Memo. by Rappard to the Secretary-General of the League, Archives of the League of Nations (UN Library Geneva) 1919 - 1927. 1/8654/248. 2 Lugard (British) former Governor-General of Nigeria; van Rees (Dutch) former Vice-President of the Council of the Indies; Beau (French) former Governor-General of Indo-China; Theodoli (Italian) former Under-Secretary of State in the Ministry of Colonies; see, Archives of the League of Nations (Geneva), 1919 - 1927. 1/11467/248. d'Andrade (Portuguese) former Governor-General of Mozambique;. see, Archives (Geneva), 1919 - 1927. 1/46746/46530. Ruppel (German) formerly in the colonial administration in Namibia (South West Africa) joined the PMC in 1927); see, Archives (Geneva), 1919 - 1927. 1/60184/248. See also, C.K. Webster, The League of Nations in Theory and Practice, London, George Allen & Unwin, 1933, p. 286. By and large the views of certain members of the PMC on the institution of mandates were influenced by the colonial policy of their governments, e.g. the notes on the "well-being and developments of the peoples of mandated territories" by d'Andrade and Lugard, the former favoured assimilation and the latter indirect rule; Archives (Geneva) 1919 - 1927. 1/47646/46530; C.P.M. 303, Geneva, October 22, 1925.

40 Secondly, the Permanent Mandates Commission adopted a cautious noncensorious attitude1 towards the mandatories. Thirdly, the members of the Commission were appointed in their personal capacity and they were not representatives of their governments. Finally, the mandatories watched jealously that the Permanent Mandates Commission did not over2 step its authority, which they tended to interpret very narrowly. Despite the fact that class 'C' mandates were mandates "pared to the bone",3 or in the eyes of South Africa "veiled annexation",4 nevertheless, the Permanent Mandates Commission considered all the mandates as only different species of one organic unit. Moreover by the terms of the class 'C' mandates, the Council of the League of Nations had placed them exactly at par with 'B' mandates as regards the enforcement of the sacred trust of civilization. The only substantial difference was the open door policy. AnAhe el e'ianent Mandates 1 Mr. Orts when submitting the revised Draft Questionnaire on 'B' and 'C' mandates to the Commission cautioned that the Commission should "avoid irritating the mandatory powers by a too inquisitorial and meticulous questionnaire". C.P.M. 240, 18 June, 1925. In the draft observation on South West Africa of the 29th session of the PMC, it was stated: "The Commission found that the sum expended on education for coloured and native people appears to be very small as compared with the total expended on education and with the revenue of the territory". This critical sentence was deleted in the final report. See, PMC 29th sess. Oral Proceedings 15, p. 15. 2 Memo by van Rees "Competence of the Mandates Commission", Geneva, 24 June, 1924; also Council Meeting at Sebastian, 5 August, 1920. Archives (Geneva), 1919 - 1927. 1/36856/248; also, a letter from Ormsby-Gore to Rappard, dated, London, 8 March, 1921, Archives (Geneva) 1919 - 1927. 1/11502/248. 3 Paul Birdsall, Versailles Twenty Years After, New York: Reynald &Hitchcock, 1941, p. 67. 4 General Smuts, Prime Minister of South Africa, in a letter to Rappard, dated, Cape Town, 4 July, 1922, stated: "we must only recognise the fact that 'C' mandates are in effect not far removed from annexation".- PMC Min. 2nd Sess. August 1 - 11, 1922, Annex 6.

Co ission in the questionnaire they sent to the mandatories treated 'B' and 'C' mandates as similar. The progressive development of the class 'C' mandates to class 'A' status was recognised by the Permanent Mandates Commission.2 2 THE BONDELZWARTS UPRISING Early in its inception the South African Administration of the mandated territory gave concern to the Permanent Mandates Commission and to the Council of the League. A number of issues strained the relationship between South Africa and the League of Nations. The first issue to make the Permanent Mandates Commission suspicious was General Smuts' statement in 1922 that 'C' mandates were equivalenA anneation;3 the Bondelzwarts incident and the subsequent disagreement among the members 4 of the Commission of Enquiry caused more dismay; the transfer in "full dominium" of the South West African railways to the Union raised an important legal point.5 The claim to sovereignty over the mandated 6 territory; the constant refusal to answer questions which the Commission 1 CPM 7(1), 12 October 1921; and CPM 240, 18 June 1925. 2 See, Report of Sir Frederick Lugard on the Petition from the Rehoboth Community, CPM. 234R. 30 May, 1925. 3 See note 4 P. 40 above. 4 PMC Min. 3rd Sess. pp. 292, 293, 323. 5 See, The South West Africa Railways and Harbours Act, Act No. 20 of .1922, of the South Africa Parliament. 6 Memo. on "Sovereignty over Mandated Territories", Archives of the League of Nations (Geneva) S.1611, No. 4 (1927 - 1930) regarded as of importance, tended to make the Permanent Mandates Commission more suspicious of, if not hostile to, South Africa.- As a result of all these issues South Africa was the most censured mandatory.2 Hardly two years after the mandate for South West Africa was formally conferred on South Africa, the Administrator of the mandated 3 Territory led the South African army against the Bondelzwarts, an indigenous people, whose well-being and development formed a sacred trust of civilization which he was supposed to promote and protect. The Permanent Mandates Commission in its report on the incident regretted that it was the Administrator, a representative of the mandatory power, who personally conducted the military operations.4 The policy of the mandatory administration in Namibia was conditioned by' two factors. On the one hand to accele%te sj&lement and protection of white settlers; and on the other to comply with the supervisory requirement of the League of Nations. While the interests of the white settlers did not necessarily conflict with the basic principles of the mandates system, however, as far as the economic development was in the hands of the white settlers and so far as this 1 The Windhoek Advertiser, 20 April 1929, considered the atmosphere in the Commission as "almost frankly hostile", Archives (Geneva), 1928 - 1932. 6A/15638/1987. 2 Quincy Wright, Mandates under the League of Nations, Chicago, University of Chicago Press, 1930, pp. 203, 578. And it was subsequently observed in the Parliament of South Africa that "the last years of the PMC's existence were years in which the conduct of this mandate was the subject of very close enquiry and, if not specific criticisms, certainly implicit criticism". Union of South Africa, House of Assembly Debates, February 23, 1949, cols. 1547 - 48. 3 See, generally, Richard Freislich, The Last Tribal War, Cape Town, Struik, 1964; also Union of South Africa, Report of the Commission appointed to enquire into the rebellion of the Bondelzwarts, Cape Town, Cape Times Ltd., Government Printers, 1923. 4 PMC Report on the work of the 3rd sess., Archives (Geneva) 1919 - 1927. 1/31179/1347. depended on the African Labour, a contradiction between the laws enacted by the mandatory power and the legal principles of the mandates system was inevitable. For the new legal principles introduced by the mandates system was that the mandatory administration, and therefore its whole legal system, should consist in the aid to be accorded to peoples not yet able to stand by themselves under the strenuous conditions of the modern world. Yet, as one member of the Commission observed the administration, both before, during and after the incident appears to have been concerned chiefly with asserting its own authority in defence of the interests of the whites".1 The immediate cause of the Bondelzwarts Uprising was the deep mistrust they had towards the mandatory administration. Thus when Abraham Morris, a respected warrior against the German administration, who had returned from the Union, was asked to reportat the police station the people refused.2 But the real resentment was caused by the heavy dog tax3 which had been recently imposed, with its numerous prosecutions and imprisonment; the stringent vagrancy law4; and the cattle branding iron system. When the police sent to arrest Abraham Morris for illegally reentering the country failed to effect the arrest due to the refusal of the people; the police officer in anger threatened the Bondelzwarts 1 A note, "The Bondelzwarts Affair", by Lugard, August 4, 1923, Archives (Geneva) S.298, No.7, (1922-1932). 2 See, Richard Freislich, op. cit., also "Crushing of the Bondelzwarts Rebellion", The Aftican World, 29 July, 1922. Archives (Geneva) 1919 - 1927. 1/22331/15778. 3 Dog Tax, Proclamation, No. 16 of 1921, The Laws of South West Africa 1915-1922, prepared for publication of A.J. Waters, Windhoek, Swakopmunder der Buchhandlung. 4 Vagrancy, Proclamation, No. 25 of 1920, ibid. that the Government forces would come and teach them a lesson.I The Bondelzwarts took this threat as a declaration of war and started preparation to place themselves in a defensive position. Of course, the Bondelzwarts had no chance against the mandatory power. The Bondelzwarts had only about 70 old and outdated rifles for their defence.2 But the continuous trials and imprisonment resulting from the excessive dog tax and vagrancy laws had left them with no other alternative but to fight. The force of the mandatory power, led by the Administrator himself, was composed of fully equipped mounted men, armoured cars, machine guns, mountain guns and, above all, aeroplanes.3 The mandatory displayed, indeed, an array of modern implements of war of that time. The Administrator was determined to crush the Bondelzwarts' resistance so that no other tribe would dare again to defy the mandatoryy power. He ordered aerial bombardment of Guruchas, where all the Bondelzwarts had regrouped with all their stock. And on 29 May, 1922 Guruchas was bombed several times. As the fighting men were up in the hills defending the village, only women, children and the stock were killed. During the night after the first series of aerial bombardment the men decided to abandon Guruchas and to go into the moyntains. The force of the mandatory pursued them, and with the help of the air power it was not long before the Bondelzwarts were defeated. Jacobus Christian, I Freislich, op. cit., pp. 15-17. 2 See, The Manchester Guardian, 7:.September, 1922. 3 "Crushing of the Bondelzwarts Rebellion", loc. cit. 4 Union of South Africa Memorandum by the Administrator of South West Africa on the Report of the Commission appointed to enquire into the Rebellion of the Bondelzwarts, Office of the Administrator for South West Africa, Cape Town, 4 April, 1923, paras. 27, 29. the Chief, was arrested; but Abraham Morris was killed in action. This indiscriminate aerial bombardment of men, women and children at Guruchas sums up the mandatory power's policy. It was a policy centred on the protection and development of the white settlers; and the indigenous inhabitants had to be subservient to that policy. If need be the mandatory did not hesitate to use force to enforce that policy.2 This policy was in contradiction with the principles of the mandates system. One member of the Commission put it as follows: the policy adopted is one of force and not of persuasion, and is pursued in the interests of the colonists rather than in those of the natives. Here then is a line of action.which departed from the line traced by the fundamental and characteristic principle of the mandate".3 1 Jacobus Christian was subsequently tried and sentenced, Rex. V. Jacobus Christian A.D. 1924, p. 122, (Supreme Court of South Africa (Appellate Division) ). 2 Similar show of military force was displayed again in 1932 in Ovamboland, northern Namibia. On that occasion King Ipumbu was fined ten cattle for trespassing on missionary land. Apparently, Ipumbu's newly married, second wife, ran away and sought refuge at the missionary station and Ipumbu went there to fetch her. Ipumbu refused to pay the fine, which was imposed by the local Commissioner without trial. As a result military force was sent. Ipumbu's kraal (homestead) was bombed by aeroplanes; but Ipumbu himself had already escaped; see, The Times (London), 17 August 1932. 3 Notes on certain aspects of the work of the League of Nations of interest to the Pacific countries, Geneva, 10 June 1927,.Archives (Geneva) S. 1677, No. 5, (1925-36).

46 3 THE WELL-BEING AND DEVELOPMENT OF THE INHABITANTS The well-being and development of the inhabitants was one of the fundamental principles of the mandates system. Of course, without international accountability, the other fundamental principle of the mandates system, this principle would have been worthless. Most, if not all, of the colonial powers at that time also claimed to administer their colonies for the well-being of the indigenous peoples. But there was no one to verify this; whereas in the case of the mandates the Permanent Mandates Commission kept a watchful eye on the administrations of the mandatories to make sure that they conformed to the principles of the mandates system. This was the fundamental difference between the mandated territories and the ordinary colonies. The annual reports sent to the League of Natins coained considerably more information than ordinary colonial administrative reports 1 submitted by the colonial governors to their governments. And more important, unlike colonial administrative reports, these annual reports were closely studied by an independent body; and both comments and reports were made public. The Permanent Mandates Commission's main weapon was thus publicity. It seems from the historical development and the main aim of the mandates system, the principle of sacred trust of civilization related mainly to the indigenous inhabitants. Alternatively, the phrase "such peoples" in the sentence that well-being and development of such peoples form a sacred trust of civilization may be interpreted to mean all I A note, "The Bondelzwarts Affairs", by Lugard, loc. cit. inhabitants.1 The former interpretation seems to be more in line with the basic principles of the mandates system. Furthermore, only the indigenous peoples were considered as "peoples not yet able to.stand by themselves imder the strenuous conditions of the modern world".2 However, by her administrative practices and her laws, South Africa, contrary to the principles of the mandates system, sacrificed the "well-being and development of such peoples" to the development of the white settlers. It is worth noting that South. Africa was already at that time a colony of settlement whose policy was based on racial discrimination (apartheid), and this she exported to the mandated Territory of South West Africa. To that extent the well-being and development of the indigenous inhabitants was only material as long as it was of service to the needs of the white settlers. This was more obvious in the fields of labour and education. The German government and the South African mandatory both regarded Namibia as a colony suitable for European settlement. Thus, as far as the indigenous inhabitants were concerned the mandatory policy did not differ much from that of the German regime. As a matter of fact, certain German regulations were retained. In a statement issued during the war, the then occupying administration stated that "the two main principles of the German law - (a) that every native must carry a pass, and (b) that every native must be in employment unless he has 1 Both interpretations were represented in the Coammission. The second view by d'Andrade (Portuguese), and the first by Lugard (British). See, "Interpretation of that part of Article 22 of the Covenent which relates to the well-being and development of the peoples of mandated territories". Notes by d'Andrade and by Lugard, CPM 303 and CPM 299; see also, Note 2, p. 39. 2 Article 22, para. I, of the Covenent of the League of Nations. visible means of support - remain in force".1 Indeed those had remained the twin pillars of the mandatory policy on indigenous inhabitants. The mandatory power developed throughout the mandate period a monstrous system of pass laws which in no way facilitated the promotion of the well-being and development of the indigenous people. To South Africa, the mandatory power, the question of the indigenous inhabitants was synonymous with labour question." The policy of the mandatory with regard to the Africans was to compel them to go out and work for the white settlers.3 It thould be noted that the German colonial regime had by and large already deprived the indigenous people of any independent means of livelihood.4 The South African administration continued the same policy. In any situation of a colony of settlement, the first step the colonisers take is to dispossess the indigenous inhajitants of the land. Namibia was not an exception in this respect. The mandatory power in the report of 1922 justified the retention of the land confiscated by the German colonial regime in the following terms: "The natives, who of course had been the original owners of the land which had ... been confiscated by the German Government, cut up into farms and sold or allotted to Europeans, had formed the expectation that this Administration ... would 1 Protectorate of South West Africa, Native Affairs, Memorandum, Administrative Office, Windhoek, Government Printing and Stationery Office, , 1916, Atchives (Geneva) 1919-1927, S. 259. 2 See, eg. South West Africa Territory, Report of the Administrator for the year 1920, Government Printing and Stationery Office, Pretoria, 1920, p. 13. 3 For a description of the measures employed in , also a colony of settlement, to entice the Africans to work for the white settlers, see, G. Arrighi, "Labour Supplies in Historical Perspective: A Study of the proletarianisation of the African peasantry in Rhodesia", Journal of Development Studies, Vol. 6, (1970), p. 197. 4 Report on the Natives of South West Africa and their Treatment by Germany, (Blue Book), August 1918, H.M.S.O., Cd. 9146. similarly confiscate German-owned farms and thus the Natives would recover the lost land and homes previously occupied by them. Almost without exception each section asked for the allottment of the old tribal areas, in which vested rights had accrued and the almost difficult was experienced in making them realize t e utter impossibility of complying with such a request". Thus despite the Mandate for South West Africa which imposed upon uthe mandatory the duty to promote "to the utmost the material and moral well-being and social progress of the inhabitants of the territory ..." the indigenous inhabitants remained dispossessed. On the contrary, more and more land was allotted to the white settlers.2 The main purpose of the Dog Tax of 1922 was not to raise revenue, but mainly to deprive the indigenous inhabitants of any means of independent livelihood - by hunting game. Referring to the Dog Tax Proclamation the Administrator stated that the law fulfilled its imnediate object by preventing keeping of large niAhrs ordogs which destroyed game, and offered "these vagrants and loafers an easy means of livelihood, which relieves them of any need to work".3 I Union of South Africa, Report of the Administrator of South West Africa for the year 1922, Pretoria, Government Printing and Stationery Office, 1923, p. 13. 2 Because of the numerical preponderance of the Germans among the white population of Namibia at that time, the South African Government to redress the imbalance encouraged white South Africans to settle in Namibia by liberal financial assistance; land had to be got for these farmers. See, Union of South Africa, Report of the Administrator of South West Africa for the year 1924, Pretoria, Government Printing and Stationery Office, 1925; see also, South West Africa Cases, ICJ, 1966, Pleadings, Vol. 1, pp. 114-115. 3 Union of South Africa, Report of the Administrator for the year 1921, Pretoria, Government Printing and Stationery Office, 1922, p. 4.

The Vagrancy Proclamation provided cheap convict labour for the white settlers. By Section 14 of this Proclamation, in clear violation of Article 3 of the Mandate for South West Africa,1 it provides. "IT shall be the duty of any magistrate before whom any person is convicted for a first offence under the first and third Sections of this Proclamation to adjudge such person in lieu of the penalties therein prescribed, to a term of service on the public works of the Protectorate or to employment under any municipality or private person". Considering that the offence of vagrancy created by this Proclamation was far- reaching, "any person found wandering abroad and having no visible lawful means, or insufficient means of support",3 and in view of the fact that the occupiers of premises or land can also effect an arrest,4 the prohibition of forced labour was manifestly abused. The white settlers, particularly the farmers, constantly complained of shortage of 'native' labour. The settlers' vie1tfrs thfaT the 'natives' "had not yet learned to do a proper day's work".5 The magistrate urged for greater "summary powers over natives under the Masters and Servanta Proclamation". And the Administrator was reported to have expressed his concern in the following terms: 1 This Article provided: "The Mandatory shall see that slave trade is prohibited, and that no forced labour is permitted, except for essential public works and services, and then only for adequate remuneration". 2 Vagrancy Proclamation, No. 25 of 1920, A.J. Waters, op.ct. 3 Ibid., s. 1. 4 Ibid., s. 10. 5 Report of the "Conference of Magistrates", South West Africa, 31 January 1927, Archives (Geneva) 1919-1927. 1/62291/1347. 6 Ibid.

51 "In South West Africa, the impression prevails that lazy natives are loitering in the reserves, that the penalties imposed under the Masters and Servants Act are not suffiz ciently heavy, and that our Pass Regulations give the natives too much freedom of movement. Therefore more penalties ant more practical Pass Systems are to be introduced". Thus, to remedy the alleged shortage of 'native' labour the laws were tightened. For instance, the penalty for the crime of vagrancy was increased from "not exceeding three months" to "not exceeding twelve months". 2 With regard to education, the policy of the mandatory was not geared to the well-being and development of the indigenous inhabitants; it favoured the white settlers. The education of the Africans was left to the missionaries; it was not made compulsory for the African children, whereas it was for the European children; it was an offence to employ European children under 16 years, whereikjot waoot for the African children.3 In fact, the education of the indigenous inhabitants was only relevant as far as it related to the needs of the white settlers. 1 Extracts from a speech by Mr. Werth, the Administrator, made during the budget debates in the Legislative Council, Allgemeine Zeitung, Windhoek, April 16, 1927 (League's translation) Archives (Geneva) S. 224. 2 See, Proclamation, No. 32, of 1927; Proclamation, No. 10 of 1920; and see further, The Windhoek Advertiser, 25 August 1937, where it is reported that the Administrator had been mindful of the needs of the employers, "Masters and Servants, and Vagrancy Laws have repeatedly been tightened". Archives (Geneva) S. 303, No. 2 (19351938). 3 See, Education Proclamation, No. 16 of 1926. This Proclamation was divided into two, the first part related only to education for European children, and the latter to Africans.

The white settlers were totally against any improvement of the education of the African child.I They considered that the "native education should solely consist in teaching the Native a love for work 2 and a will to become useful".2 The educational policy of South Africa as it relates to the Africans has been, throughout this century, patterned to fulfil and to promote the apartheid system.3 Despite the fact that Namibia was a mandated Territory the same policy, nevertheless, applied too. The following table shows how little money as compared to European education the mandatory administration did spend on the education of the Africans. 1 One member of the Legislative Assembly complained that the Administration was spending too much money on African education when many European children had no schools. But the figures when given showed that the money expended on African education was only 8. of that spent on European education. See, Windhoek Advertiser, 23 May 1930, Archives (Geneva) S. 254, No. 7, (1929-1930). 2 Petition by the white farmers in the Warmbad District on the Native Commissioner Report, Bondelzwarts, June 1923. Archives (Geneva), 1919-1927, S. 259. 3 See, eg. Bantu Education Act, No. 47 of 1953; Extension of University Education Act, No. 45 of 1959; of the Union of South Africa. The former created a special ministry in charge of African education; the latter extended apartheid to all universities in South Africa.

Africans & Coloureds Year 1921 1922 *1923 1924 1925 1926 1927 1928 1929 1930 * The education of coloured and African the financial year 1922-1923. pupils was first subsidised in CPM XXIeme sess., CPM 1226, Renseignements statistiques relatifs aux territoires sous mandats, Geneve, le 21 Octobre, 1931. And after the demise of the League of Nations the figures were as follows: Year 1953-54 1954-55 1955-56 European £678,180 £723,897 £762,346 African £100,578 £108,392 £119,250 And pupils for 1954-55 were: 11,382 Europeans to 24,858 Africans. Thus per European child the Administration spend £67.5 and per African child £4.4. All figures from: UN Doc. No. A/AC.73/LIO (1957), at pp. 179-180, paras. 521- 523. EDUCATION1 All races 34,901 46,154 58,650 72,587 85,321 99,943 118,620 120,520 129,978 138,646 431 3,668 4,709 5,450 7,765 8,802 9,480 11,013

As is shown by the figures in this table, the mandatory power expended very little money on the education of the indigenous inhabitants. The amount spent on African education never exceeded 10 of the amount spent on European education. The Permanent Mandates Commission constantly expressed its concern at the meagre amount being spent on the African education.1 The educational policy of the mandatory being determined, by and large, by labour demands of the white settlers and by the apartheid system, meant that rights, opportunities and type of education each child received was determined and allotted arbitrarily on the basis of race, colour and tribe, without regard either to the needs or capacities of the whole population. No doubt such an educational policy was contradictory to the spirit and principles of the mandates system. 1 PMC 31st sess. South West Africa, observations on the report concerning the administration of South West Africa, 1936; see also, The Cape Times, Cape Town, 24 September 1925, Archives (Geneva) S. 225, wherein the concern of the Commission on the (act that only about 17 of the total revenue is expended on African education) meagre amount being spent on the African education as compared to that spent on European education is reported. CHAPTER III INTERNATIONAL ACCOUNTABILITY AT CROSSROADS 1 INTERNATIONAL ACCOUNTABILITY DURING THE WAR As pointed out above the principle of international accountability in relation to administration of dependent terrifiloes an&-peoples applied only to those territories that were placed under the mandates system. For practical reasons the principle of international supervision, presupposes an international organization to carry out the supervisory function.2 Thus, with the outbreak of the Second World War and with it the suspension of the normal work of the League of Nations and that of the Permanent Mandates Conmission, the principle of international accountability was operationally put into cold storage. But the principles of the mandates system remained in force;. and the principle of international accountability continued to influence the thinking3 on the administration of dependent territories and peoples I See supra, Chap. I. 2 Ibid., Sec. 3. 3 See, eg, Norman Bentwich, "Colonies and 'International Accountability ", 16 Political Quarterly (1945) p. 253; Benjamin Gerig, "Colonial Aspect of the Postwar Settlement", International Conciliation, No. 379 (1942), pp. 195-217. even during the war. For a better appreciation of the principle of international accountability during the transitional period it is worthwhile to expand on this point. As already pointed out' the mandates system was an attempt, apart from purely humanitarian reasons, to eliminate colonial rivalries and also to provide equal access to raw materials. These factors were also decisive for the continuation and extension of the principle of international accountability in relation to the administration of dependent territories and peoples after the Second World War.2 Although war aims were not crucial issues during the Second World War as they were during the First,3 nevertheless, the Allied Powers frequently emphasized their noneimperialistic aims in the war. Also public opinion in the United 1 Supra, Chap II, Sec. 2; Access to raw materials was an important issue during the 1930s. 2 See, Ernest B. Haas, "The Attempts to Terminate Colonialism: Acceptance of the United Nations Trusteeship System". 7 International Organisation, (1953) p. 1; And was due to the disagreement among the big powers - that the question of the Italian colonies was finally handed over to the United Nations, see, Vernon McKay, "The Future of Italy's Colonies'', 21 Foreign Policy Reports (1946), p. 270.. In fact, the Soviet Union wanted to become "the sole trustees of Tripolitania in which it had special interests"; this phrase was used in Soviet newspapers of 15 February 1946. See, Public Records Office, London, docs. U 1899/106/70, 21 February 1946. India too expressed interest in the future of ex-Italian colonies, particularly Somalia and Eritrea, ibid., U 2207/106/70, 26 February 1946. 3 Supra, Chap. I, Sec. 1. 4 See, eg. The Atlantic Charter, 14 August 1941, 35 A.J.I.L. Supplement (1941), p. 191; see also, Sir Edward Grigg, British Parliamentary Secretary to the Ministry of Information, Declaration, 11 November 1939, Official Statements of War and Peace Aims. I European Belligerents, 1 September 1939 - 31 August 1940. Geneva Research Centre, Geneva, Dec. 1940, p. 13; Conference of President Roosevelt, Generalissimo Chiang Kai-Shek and Prime Minister Churchill in North Africa, 4 December 1943, 38 A.J.I.L. Supplement (1944), p. 8.

57 I States and in Europe favoured improved colonial administration; and the newly independent states of Asia and the Middle East were emerging fast as anti- colonialists. The British Government during the war, at first, when the war situation heightened their sensitivity and when for the prosecution of the war it was very important to satisfy world opinion, particularly American public opinion, showed a willingness to accept major changes in the administration of dependent territories and peoples2 hence the Atlantic Charter.3 However, very soon they started to change their 4 position. For example, Prime Minister Churchill placed a narrow interpretation on the Atlantic Charter which excluded the application of the principle of self- determination to the colonies. And at Yalta when the question of territorial trusteeship was broached, Churchill flared up and declared at once that under no circumstances %Ald hever consent to the "fumbling fingers of forty or fifty nations prying into the life's existence of the British Empire".6 France was equally reluctant to 1 eg K.H. Bailey, "Dependent Areas of the Pacific - An Australian View", 24 Foreign Affairs (1945/46) p. 496; for example, it was urged upon the United States Secretary of State prior to the Yalta Conference that "there is a strong feeling in this country that dependent territories should not be the subject of barter but should be the concern of the whole world community", Postwar Foreign Policy Preparation, United States Department of State, Washington, U.S. Government Printing Office, 1949, Appendix 55, 23 January 1945, Memorandum for the Secretary, p. 661. 2 See, eg, Norman Bentwich, loc. cit. 3 35 A.J.I.L. Sup. (1941), p. 191. 4 The British Colonial Secretary, Mr. Stanley, stated that "the administration of British colonies must continue to be the sole responsibility of Great Britain". The Times (London), 6 March 1943. 5 Parliamentary Debates, 5 Series, House of Commons, Vol. 374, col. 69. 6 Edward R. Stettinius, Roosevelt and the Russians: The Yalta Conference. London: Jonathan Cape, 1950, p. 211. extend the principle of international accountability to her colonies.1 By 1945, at the Commonwealth Conference in London prior to the San Francisco Conference, the United Kingdom made it clear that they did' not want new trusteeship systems extended to their colonies.2 The decision of the British Cabinet taken soon after the Yalta Conference was that they "should agree to the continuance of a mandatory system in respect of the existing mandated territories and territories removed from the enemy".3 However, on the third clause of the Yalta accord the British Cabinet did not take a decision.4 But later instructed their delegation at San Francisco to note that "there could be no (repeat no), question of our agreeing to place under any form of international trusteeship any of our colonial territories, other than those now administered under mandate."5 Public opinion on the administration of deAent territories and peoples during the war covered the whole field. On the colonial extreme there was the view that favoured outright colonisation and thus even 6 abolition of the mandates system; and at the opposite extreme, the I See, eg James N. Murray, The United Nations Trusteeship System. Urbana: The University of Illinois Press, 1957, pp. 27, 28; Vernon McKay, "International Trusteeship - Role of the United Nations in the Colonial World", 22 Foreign Policy Reports, (1946), pp. 54-67. 2 M.C. Setalvad, "India and the United Nations", 6 India Quarterly (1950), p. 107. 3 Public Record Office, London, U 515/36/70. 4 Ibid. 5 Ibid., U 2676/191/70, 13 April 1945. 6 Banjamin Gerig, loc. cit., p. 195.

59 decolonization extreme, there was the view that urged international administration for all the dependent territories. In between these extreme views, there were the proposals which favoured international co-operation through regional councils to replace the principle of 2 international supervision; others urged for the extention of the 3 principle of international supervision to all the colonies; whereas still others favoured the retention of the mandates system and international co-operation through regional councils to apply only to the other dependent territories.4 With such wide ranging views, though most were not seriously asserted,5 any solution would only be achieved on the basis of give and take. In the American draft on dependent territories prepared prior to the Dumbarton Oaks Conference the principle of international accountability, although, "by action of the general assemiy the system might be extended to any territories for which assistance is requested I Norman Bentwich, loc. cit., p. 257. It is worth noting that no outright independence was suggested, independence was still subjected to technological and cultural barometers; for it was still in Roling's classification, a club of the "civilized nations", B.V.A. Roling, International Law in an Expanded World. Amsterdam; Djambatan, 1960. 2 Benjamin Gerig, loc. cit., p. 195. 3 "International Interest in Colonies", 35 Round Table (1944/45), p.24 at p. 27. 4 James N. Murray, op. cit.# p. 25. 5 eg The two extreme opposing views were not vigorously officially put, except that China suggested direct administration by an international organisation as an alternative to international supervision, UNCIO, Vol. 10, Doc. 230, p. 647, 11 May 1945 (Analysis of papers presented by Australia, China, France, UK and US). by member states having control over such territories",1 was mainly envisaged to apply only to mandated territories and territories to be detached from enemy states.2 Thus, this draft retained and improved the principle of international accountability established under the mandates system of the League of Nations.3 Thus just before the United Nations Conference on International Organisation opened in San Francisco in April 1945 the general position of the States mostly concerned with the question of dependent peoples and territories was that international accountability would continue to apply to the mandated territories and to the territories to be detached from the enemy states. Although lip service was paid to the extention of the same principle to the ordinary colonies, the opposition was very strong. The division between mandated territories and territories to be detached from the enemy states on the one hand anr ordinary colonies on the other was clearly maintained. 1 Postwar Foreign Policy Preparation, op. cir.,Appendix 39, p. 606. But of course this draft was shelved due to the strategic consideration raised by the American Joint Chiefs of Staff. 2 Ibid. 3 Ernest B. Haas, loc. cit.

2 SOUTH AFRICA'S STATEMENTS DURING THE TRANSITIONAL PERIOD The United Nations Conference on International Organisation opened in San Francisco without any prior tentative agreement, among the five sponsoring powers, on the question of territorial trusteeship. However, at Yalta the system of international supervision was approved; and the participating powers agreed that the sponsoring powers should consult and present a working paper for the Conference.1 Thus the Yalta Conference settled the issue as to whether the system of international trusteeship would be included in the new organisation. What was to be discussed were the principles and the machinery of such an institution as well as the range of application and not the specific territorial issue. The statements made by South Africa and by the other States at the San Francisco Conference and at subsequent meetings should be placed in proper perspective as to the issue before the particular meeting; so. too should be the case with regard to the legal principles to be deduced from such statements. South Africa argued strenuously in the South West Africa Cases2 that her statement of 11 May 1945 was a reservation. South Africa contended that that statement showed that she did not intend to place the mandated territory of South West Africa under the trusteeship system of the UN; and that it also showed that the participation of the Union of 1 See the opening remarks of the Chairman of Committee 11/4, UNCIO, San Francisco, 1945, Verbatim Minutes of the technical Committees, Technical Committee, 2/4, 5 May, 1945, Running No. 4, (Microfilms, UN Library, Geneva); also Hearings before the Committee on Foreign Relations, United States Senate, Seventy-Ninth Congress on the Charter of the UN, 9, 10, 11, 12 and 13 July 1945. Washington, US Government Printing Office, 1945, p. 115. 2 South West Africa Cases, Pleadings, Vol. 1i, pp. 33-35, 127-129, Vol. VIII, p. 377. of South Africa in the drafting of the Charter of the UN was not a "conitment on its part relative to this new trusteeship system and its possible application to South West Africa".1 This was the interpretation South Africa urged the ICJ to place on this statement. The point at issue is whether this statement of 11 May 1945 could legally have amounted to a reservation to certain provisions of the Charter of the UN. The Vienna Convention on the Law of Treaties states the legal effect of a reservation as follows: "A reservation ... modifies for the reserving State in its relation with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation" .2 Although this Convention was not yet drafted when the South West Africa Cases were argued at the ICJ, it is nevertheless essentially a codification of the existing principles of customary international law on the subject. Consequently the law stated in the Vienna Convention on the I Ibid., Vol. VIII, p. 377. 2 Article 21(I)(a) 3 Ian Brownlie, Principles of Public International Law (2nd Ed.) Oxford: Clarendon Press, 1975, p. 600 et. seq., see also, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Rep. 1971, p. 16, at p. 47. Hereafter this case will be referred to as Namibia, Advisory Opinion, ICJ Rep. 1971). This was despite the fact that this Convention was not yet in force, on this point see Herbert W. Briggs, "Unilateral Denunciation of Treaties: The Vienna Convention and the International Court of Justice", 68 AJIL (1974), pp. 51-68.

Law of Treaties is applicable to the interpretation of the statement of South Africa of 1945.1 The purpose of a reservation is to exclude or to vary the legal effect of certain specified provisions of a treaty, 2 or to interpret an ambiguous provision. And a reservation is made when the State making it is. signing, ratifying, accepting, approving or 3 acceding to the treaty. The statement of 11 May 1945 of South Africa was not made when that country was signing, ratifying, accepting, approving or acceding to the Charter of the UN; it was made during the deliberation as a political statement. For that matter, the statement of 11 May 19454 was imprecise and ambiguous. It did not specify the particular clause which was unacceptable, nor did it stipulate the extent of the objection which would be covered by the intended reservation. Furthermor1 the statement 5 of 11 May was ruled out of order by the Chairman of Committee 2/4, and South Africa did not appeal against that decision. Although actual territorial issues were not being discussed, countries with strong objections 1 In 1966 the relevant principles of international customary law were as recorded in the Vienna Convention on the Law of Treaties. Judicial pronouncement on this point prior to the South West Africa Cases was made by Judge Zoricic in his dissenting opinion in the first phase of the Ambatielos Case, he defined a reservation in the following terms: "A reservation is a provision agreed upon between the parties to a treaty with a view to restricting the application of one or more of its clauses or to clarify their meaning; it is therefore by its very nature, closely linked to the content of the Treaty". Ambatielos Case (Jurisdiction, Judgment of 1 July, 1952), ICJ Rep. 1952, p. 28, at p. 76; see further, Lord McNair, The Law of Treaties. Oxford: Oxford University Press, 1961, pp. 158-177. 2 McNair, op. cit., Chap. IX. 3 Vienna Convention on the Law of Treaties, Article 19; see also, International Status of South West Africa, Pleadings, p. 247, Ingles (Philippines). 4 See, UN GAOR. Doc. A/123; South West Africa Cases, Pleadings, Vol. I, pp. 33-34; Verbatim Minutes, loc. cit., 11 May 1945, Running Nos. 28-33. 5 UNCIO, Docs. Vol. 10, p. 434. I managed to record their objections; this South Africa did not even do. It is our contention that the South African statement of 11 May 1945 could not legally be considered as a reservation to the principle of international accountability in administration of dependent territories. For the question of applicability of the principle of international accountability to certain types of dependent territories was settled at the Versailles Peace Conference and reaffirmed at the Yalta meeting.2 Alternatively, it could be argued ethat the statement of 11 May 1945 was a reservation to the placing of the mandated territory of South West Africa under the trusteeship system of the UN.3 1 Guatemala made a specific and categorical reservation with regard to (now) Article 77(I)(e) of the Charter of the UN, Verbatim Minutes, loc. cit., 24 May 1945, Running No. 5. 2 Inexplicably, Solomon Slonim considers that the "statement is also significant because South Africa has steadfastly maintained that it represented a clear reservation to the trusteeship provisions of the Charter". South West Africa and the United Nations: an International Mandate in Dispute. Baltimore: The John Hopkins University Press, 1973, p. 76, n.2. It seems the argument here is that the repeated assertions of South Africa turned this statement into a reservation, but not the application of legal principles. 3 South West Africa Cases, Pleadings, Vol. II, pp. 33-34; this was the position advanced by General Smuts; he argued that "in May 1945, when questions relating to trusteeship were under consideration by the San Francisco Conference, the Union Government entered a reservation designed to ensure that the future status of South West Africa and the desirability of its incorporation in the Union should not be prejudiced by any proposals adopted by the Conference in regard to the future of mandated Territories". UN GAOR, 1st Ses. (2nd part), 4th Com. Part I, p. 239 (Doc. A/C4/41).

At the San Francisco Conference South Africa based her argument for incorporation of Namibia on progressive interpretation of the objectives of the mandates system.1 She argued that South West Africa was a self-governing territory;2 and that due to economic unviability, ethnic reasons, and also ouing to the fact that South West Africa is $geographically and strategically a part of the Union of South Africa",3 she asserted that "there is no prospect of the territory ever existing as a separate state, and the ultimate objective of the mandatory principle is therefore impossible of achievement".4 And concluded that South West Africa "cannot exist as a state apart from the Union". 5 It is significant to point out that this statement could not have legally amended an international agreement unilaterally.6 Thus, the alternative argument, that the statement of 11 May 1945 was a wish to keep the option of incorporating Nakia iM South Africa open, would not legally qualify as a reservation. It was only a mere political statement. 1 This was despite the unfounded innuendoes by South Africa during the hearings of the South West Africa Cases that the applicability of the mandates system to South West Africa was doubted at Versailles. See, Verbatim Minutes, loc. cit., 11 May 1945, Running Nos. 28 and 30. 2 Ibid., Running No. 32; see also, allegation of "advanced stage of self-government enjoyed by South West Africa". UN GAOR, 1st Sess., (1st part), 4th Com., (22 Jan. 1946), p. 10. 3 Verbatim Minutes, loc. cit., 11 May 1945, Running No. 32. 4 Ibid., Running No. 33. 5 Ibid., 14 May 1945, Running No. 3, the statements in this paragraph are not in chronological but logical order. 6 Article 22 of the Covenant of the League of Nations was a part of an international agreement; so too was the Mandate for South West Africa, see the South West Africa Cases, Preliminary Objections, ICJ Rep. 1962, pp. 330-335; Judge Jessup, Sep. Op., ibid., pp. 401-422; cf. Judges Spender and Fitzmaurice, Joint Dis. Op., ibid., pp. 474-479.

It should be further pointed out that even if the statement of South Africa was submitted at the appropriate stage and time, as a reservation it may still not have been accepted, if such a reservation was clearly incompatible with the object and purpose of the treaty. By a reservation a state is supposed to regulate for and safeguard against its vital interests. The trusteeship provisions were intended to promote to the utmost the well-being of the inhabitants of these territories, this was the raison d'etre of the Charter provisions on dependent territories and peoples, and in this there was no specific state interest involved.2 Obviously, the South African colonial ambition could not be gain-said, but that was not, due to the principle of non-colonisation (non-annexation), an acceptable vital interest of a state. The-correllative to the high "civilizing purpose" 3 of the Genocide Convention from which no reservation is admissible, is whether a reservation is permissible to a provision which records a rule of international customary law. This seems highly doubtful. Therefore,-even if the statement made by South Africa at the San Francisco Conference may not be considered as a reservation to the principle of international accountability, but as intended to keep the option of incorporating Namibia open, it is still barred by the already evolved non-annexation principle of the mandates system. What South Africa could not achieve at the Peace Conference at Versailles in 1919 she could not be allowed to achieve indirectly. Furthermore, if the I Reservation to the Convention on Genocide, Advisory Opinion: ICJ Reports 1951, p. 15, at p. 24 et seq.; see also, Vienna Convention on the Law of Treaties, Art 19(c). 2 For similar view, see, Reservation to the Convention on Genocide, Advisory Opinion: ICJ Reports 1951, p. 23. 3 Ibid. statement of South Africa is considered as a reservation, in the sense of keeping the option of unilateral incorporation open, it is then in conflict with Article 80(1) of the Charter, the conservatory clause. For the South African argument is meant to oust the right of all the other parties, including those of the indigenous inhabitants; but that was specifically prohibited.2 There is another point concerning the statement of South Africa of 11 May 1945 delivered3 at the San Francisco Conference on International Organisation by Mr. D.L. Smit which we will consider in detail. The last paragraph4 of this statement is as follows: 'As territorial questions are however reserved for handling at later Peace Conference, where the Union of South Africa intends to raise this matter, it is here only mentioned for the information of the Conference in connection-with the mandates questions." It may be mentioned in passing that this last pariafaph maes it clear that this long statement was not intended as a reservation to anything. But was rather meant to keep the matter open for further consideration at the appropriate time and place. It is, despite the alleged uncertainty 5 by counsel for South Africa, abundantly clear what South Africa had in mind was that, in the outmoded tradition of international conferences 1 See, eg, South West Africa Cases, Pleadings, Vol. VII, p. 78. 2 Verbatim Minutes of the technical committees, loc. cit,, 23 May 1945, Running No. 12, per U.S.A. delegate; and that was the conclusion reached by the ICJ in the International Status of S.W.A., ICJ Reports 1950, p. 134; see also The Vienna Convention of the Law of Treaties, Article 19(a). 3 See supra n.4, p. 63. 4 That is as recorded in the Verbatim Minutes of the technical committees, loc. cit., which is exactly the same as in GAOR Doc. A/123, incidentally a document prepared and submitted by South Africa in support of her request to incorporate Namibia, this was as early as September 1946. 5 South West Africa Cases, Pleadings, Vol. VIII, p. 377. after a major war, territorial questions will be raised at one point or another. And, obviously, she hoped that at that stage territorial adjustment would be made; and then she would claim outright'annexation of Namibia. It is common knowledge that that anticipated event did not come to pass. During the South West Africa Cases of 1960-1966 another last paragraph to the statement of 11 May 1945 appeared for the first time; and strange enough no reference is given where it was plucked from.2 This "1966 last paragraph" is as follows: '"As stated in the Memorandum, this is not a matter that can be decided here, but I am directed to mention it for the information of the conference so that South Africa may not afterwards be held to have acquiesced in the continuance of the mandate or the inclusion of the territory in any form3 of trusteeship under the new International Organisation." 1 Ibid., Vol. I, p. 238, n. 1. 2 This is a regrettable omission, such an important piece of evidence and which went against the entire record up to then, one would have expected the source to be indicated. And not only claimed, origianl typewritten document, ibid. If so why was it omitted in 1946 GAOR, Doc. A/123. If the omission was a genuine error, surely such a serious omission would have been noticed at once since most of the delegates who represented South Africa at San Francisco also attended the lst Session (both parts) of the General Assembly of the United Nations. And again this important paragraph was not mentioned in 1950, International Status of. S.W.A., Pleadings, p. 114. It is only asserted that Dr. Smit affirmed that he made the whole statement, South West Africa Cases, Pleadings, Vol. VIII, p. 377. At this stage (1961, for the applications were submitted in November 1960) Dr. Smit was 76 years old and, in fact, died on 19 December 1961, see, Republic of South Africa, House of Assembly Debates, 1962, Vol. 2, p. vii, n. 2. 3 South West Africa Cases, Pleadings, Vol. I, p. 238, n. 1.

It seems that this paragraph was not only intended to rebut any pleas of acquiescence and/or estoppel or priclusion,1 but also to pluck out the bottom from the ruling of the International Court in the Advisory Opinion on the International Status of South West Africa to the effect that "these declarations constitute recognition by the Union Government of the continuance of its obligations under the Mandate and not a mere indication of the future conduct of that Government". Hence the strong inference that this "1966 last paragraph" was an after-thought - a creation for the South West Africa Cases. This inference is strengthened by the now-released British official documents of that period. The copy of the statement of the South African delegation of 11 May 1945 at the San Francisco Conference given to the British delegation by the South African delegation, as now released by the British Government,3 does not include this claimed "1966 last paragraph' Thil'ctopy was given to the British delegation more than a month4 after it was delivered. Thus, if the claimed "1966 last paragraph" was inserted just before delivery, a proper correction would have been made. In the light of this overwhelming documentary evidence the conduct of the South African Government in the South West Africa Cases is highly questionable, 1 See, Ihlen Declaration, Legal Status of Eastern Greenland Cases, (1933) PCIJ Reports, Series A/B No. 53 at p. 71; Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals. London: Stevens, 1953, p. 141 et seq., H. Lauterpacht, Private Law Sources and Analogies of International Law (with special reference to International Arbitration). London: Longmans, Green and Co., 1927, Chap. V; I.C. MacGibbon, "Estoppel in International Law", 7 International and Comparative Law Quarterly (1958), pp. 468-513; McNair, "The Legality of the Occupation of the Ruhr", 5 B.Y.I.L. (1924), p. 17 at p. 34 et seq. 2 International Status of S.W.A., ICJ Reports 1950, p. 135. 3 Public Record Office, London, F.O. 371/50811/05906; we have a photostat copy of this document. 4 Covering letter dated 22 June 1945 by Hewton, Secretary to the South African delegation, Public Record Office, London, U 5200/191/70. to say the least. The irresistible inference is that the "1966 last paragraph" was a fabrication. Such a serious charge against a State could not be made lightly. However, but for the British official documentary * evidence the conclusion could be made that the Government of South Africa fabricated evidence before the International Court of Justice. The subsequent revelation1 of the manner and extent to which leading figures in the Government of South Africa, including the Prime Minister, could resort to influence international public opinion, show that the International Court of Justice could not have been beyond such dubious methods. The documentary evidence is such that this inference cannot be rebutted by mere hearsay of "Dr. Smit confirmed to the Respondent that he had made it".2 The onus is on the Government of South Africa to rebut this irresistible conclusion of fabricating evidence before an international tribunal. qj, lw Despite the unavailability of the now released British official documents to the International Court of Justice, the many anomalies should have led to some doubts. And particularly, the syntax deformity between the original last paragraph and the "1966 last paragraph" is very striking. If both paragraphs were on the original document as claimed by South Africa, it is indeed strange that such a syntax deformity was not noticed and corrected. I What has been dubbed 'Muldergate' Scandal revealed how the South African Government attempted, in a dubious manner, to sell apartheid to the international society. See, eg, Sunday Express () 29 October 1978; The Observer (London) 5 November 1978. 2 South West Africa Cases, Pleadings, Vol. VIII, p. 377; Judge Jessup concluded "that Mr. Smit's memory may have been faulty", ibid., Second Phase, ICJ Reports, 1966, p. 340.

Unlike in the municipal courts, on the whole, documentary evidence 1 is not subjected to strict proof before the International Court. It will be regarded as admitted once it is submitted, unless challenged by the other party.2 The Court can also demand to see the original document.3 Unfortunately, neither the Applicants nor the Court challenged or demanded to see the origitLal document; and perhaps nothing more will be heard of this "1966 last paragraph". If the ICJ had assumed a more inquisitorial position rather than remained an impartial arbiter in the contest between the parties in presentation of their evidence, it would probably have been able to get to the truth of the "1966 last paragraph". As the South West Africa Cases were finally decided on an "antecedent matter"4 it is not easy to determine how much weight the ICJ placed on the "1966 last paragraph". Only four of the judges in the South West Affica CaMs referred . to the "1966 last paragraph". These were Judges Spender, Fitzmaurice, Jessup and Judge Ad Hoc Van Wyk.5 And only Judge Jessup doubted the veracity of the "1966 last paragraph" and the other three accepted it. 1 See Articles 43, 62, 64 and 78 of the Statute of the International Court of Justice. 2 The Case Concerning the Arbitral Award made by the King of Spain on 23 December 1906. (Honduras v. Nicaragua) Pleadings, (1960), Vol. II, p. 164, where the accuracy of a document submitted to the Court was successfully challenged. See also, Ambatielos Case, Pleadings, pp. 346, 547 and 566. 3 Article 49 of the Statute of the International Court of Justice, and Article 54 of its Rules. See further, Corfu Channel Case, Judgment of April 9th, 1949, ICJ Reports 1949, p. 4 at p. 32. 4 South West Africa Cases, Second Phase, Judgment, ICJ Rep. 1966, at p. 18, " ... there was one matter that appertained to the merits of the case but which had an antecedent character, namely the question of the Applicantst standing in the present phase of the proceedings". 5 Ibid., Preliminary Objections, ICJ Rep. 1962, Joint Dis. Op. p. 533; Ibid., Second Phase, ICJ Rep. 1966, Dis. Op. p. 340; Ibid., Sep. Op. p. 95, respectively.

Judges Spender and Fitzmaurice in their Joint Dissenting Opinion in the First Phase of these Cases relied on the "1966 last paragraph", among other issues, to conclude that South Africa was no longer under any mandatory obligation.1 On the authenticity of the "1966 last paragraph" Judges Spender and Fitzmaurice simply, with due respect, stated: "It has equally not beIn contested that this further passage was in fact included". It seems the common law approach of impartiality of the judge as far as presentation of evidence is concerned prevailed. The Joint Dissenting Opinion of Judges Spender and Fitzmaurice placed the burden of disproving the veracity of the "1966 last paragraph" on the Applicants. Judge Ad Hoc Van Wyk relied on the "1966 last paragraph" to conclude that despite the conservatory provisions of Article 80(I) of the Charter of the UN South Africa's obligations under the Mandate for South West Africa lapsed upon the. dissolution of the League of Nations.3 Relying on the same paragraph Judge Ad Hoc Van Wyk denied that South Africa could be said to have acquiesced in the continuation of the principle of international accountability for the administration of mandated territories.4 1 Ibid., Preliminary Objections, ICJ Rep. 1962, Joint Dis. Op. pp. 539-540s 2 Ibid., p. 533, n. 2. 3 Ibid., Second Phase, ICJ Rep. 1966, Sep. Op. p. 101, but, with due respect, in a rather inelegant manner the citation given after a quotation from the "1966 last paragraph" is that of "Committee 11/4 on 11 May 1945", ibid., p. 95; yet the record of that Committee does not include the "1966 last paragraph", see UNCIO, Docs. Vol. 10, p. 434; Verbatim Minutes, 10c. cit., 11 May 1945, Running Nos. 28-33. 4 South West Africa Cases, Second Phase, ICJ Rep. 1966, p. 101.

On the other hand, Judge Jessup doubted the veracity of the claim Of South Africa that the "1966 last paragraph" was read at the San Francisco Conference in 1945; and thought the reasoning for- such acceptance "perhaps too facil".2 In matters relating to presentation of evidence the Court should play a more active part as provided for in the Statute and in its Rules of procedure. Thus, a leaning towards the inquisitorial approach of the civil law system would be commendable. As it emerged from the opposing views of Judges Spender, Fitzmaurice and Judge Ad Hoc Van Wyk on the one hand and Judge Jessup on the other, the veracity of the "1966 last paragraph" was probably discussed in the private deliberations of the Court. But unfortunately no further clarification was called for from Counsel for South Africa; nor production of the original document was demanded. T4queston', however, is whether one judge could not have demanded the original document to be 3 produced before the Court. Of course, the Court, in its private deliberation, could have turned down the request for a production of a document. It seems that once that happened, the judge in the minority could not press on with his view. However, it is very unlikely that the Court would obstruct the revelation of the truth.4 1 Ibid., Dis. Op. p. 340. 2 Ibid., Dis. Op. p.. 340, u. 2. 3 Article 49 of the Statute of the ICJ; Article 59 of the Rules of Court of 1972; of course, it is a decision of the Court, Article 33 of the Rules of Court of 1972. 4 A judge of the Permanent Court of International Justice observed aptly that " ... the Court is not tied to any system of taking evidence, whether proceedings are begun by Special Agreement or by Application. Its task is to co-operate in the objective ascertainment of the truth. The Court cannot omit to use any means which may enable it to ascertain the objective truth ..." Judge Van Eysinga, Indiv. Op., Oscar Chinn's Cases, Ser. A/B No. 63, at pp. 146-147.

It is very unlikely that had the documentary evidence, for the period 1945-1946, of the British Government, now available, been presented to the ICJ the veracity of the "1966 last paragraph" would have been accepted by a single judge. Indeed, it is quite likely that a revelation that the "1966 last paragraph" was a fabrication would have cast a serious (damaging) doubt to the credibility of the Respondent and its entire case before the ICJ. The revelation we are now able to make that the "1966 last paragraph" did not exist in 1945 weakens further the position of South Africa with regard to Namibia. 3 THE MANDATES SYSTEM INTO TRUSTEESHIP SYSTEM "It would have been contrary to the over-ri4#ag pubse of the mandates system to assume that difficulties in the way of the replacement of one rigime by another designed to improve international supervision should have been permitted to bring about, on the dissolution of the League, a complete disappearance of international supervision. To accept the contention of the Government of South Africa on this point would have entailed the reversion of mandated territories to colonial status, and the vital replacement of the mandatIs regime by annexation, so determinedly excluded in 1920". This statement by the International Court of Justice states succinctly not only the hub of the legal controversy; but also the legal perimeter of the problem. And placed in historical context the statement marks the watershed of the legal principles of decolonization. 1 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16, at p. 33, para. 57. Henceforth Namibia Advisory Opinion.

It may be observed that the legal controversy of the Namibian question, by and large, stems from what was decided during the transitional period.I It appears that the link between the League.of Nations and the United Nations, particularly, between the mandates system and the trusteeship system was more 'organic' than strictly legal.2 However, this link received Judicial recognition.3 (i) The Element of Voluntariness In strict legal sense, Articles 75, 77 and 79 of the Charter of. the United Nations provide for a non-obligatory procedure for placing territories under the trusteeship system. This seems to be generally accepted.4 1. Perhaps it is appropriate to note in parenthesis that what was decided or left out at San Francisco, London and Geneva during the transitional period should not be viewed in isolation of the overall historical background nor of the general prevailing view then; neither should any interpretation of the decisions and statements of this period ignore completely the relevant development in the field of administration of dependent territories and peoples. 2 See, eg, the Cuban delegate at the last Assembly of the League, League of Nations, Official Journal, Special Sup. No. 194 (9 April 1946), p. 50. We should point out that the contrast here is purely in terms of clear unambiguous international treaty; this should not detract from the importance of the many general principles of law which international tribunals apply where treaty provisions did not provide for, eg, the principle of effectiveness, see, infra Chap. III, Sec. 4. 3 See, generally, International States of S.W.A., ICJ Reports 1950, p. 128. 4 And the Court in 1950 held that the conservatory provisions of Article 80 of the Charter do not impose a definite legal obligation upon mandatories to place mandated territories under the trusteeship, ibid., p. 139.

It should be restated, however, that one of the basic principles which led to the establishment of the mandates system as well as the trusteeship system was the principle of non-annexation. In fact at the time of the San Francisco Conference, unlike at Versailles, the battle 2 for the principle of non-annexation had already been won. To some extent, the element of voluntariness in the placing of dependent territories under the trusteeship system was due to the desire to abide by the constitutional provisions of the member states, particularly those of the United States of America.3 Another extrinsic factor was that the element of voluntariness was the price4 the noncolonial powers had to pay for the acceptance of the principle of international supervision by the colonial powers. The provision of the Charter of the United Nations which provide for voluntary procedure in placing territories un f the*Vusteeship system have two foundations in law. These correspond to the two main categories of territories to be placed under the trusteeship system the mandated territories and the ordinary colonies. These main categories of dependent territories were fully perceived at San Francisco. The British delegate emphasized the differences in the following terms 1 See supra Chap. I; Chap. III, Sec. 1. 2 No country at the San Francisco Conference did argue openly for annexation; all countries had subscribed to the Atlantic Charter by the United Nations Declaration of 1 January 1942. A.J.I.L. Vol. 36, Sup. (1942),p. 191. Hints of desire for annexation were dropped by South Africa, particularly, at the last Assembly of the League, see, League of Nations, Official Journal, Special Sup, No. 194, p. 32; and France saw incorporation into the "Union Francaise" as equivalent to independence, see, Public Record Office, London, U 378/36/70, 10 January 1946. 3 Francis B. Sayre, "Legal problems arising from the United Nations Trusteeship System", 42 A.J.I.L. (1948), p. 263 at 267. 4 See, eg, for compromise at San Francisco, A.H. McDonald, Trusteeship in the Pacific, Sydney: Angus and Robertson, 1949, pp. 22-23; James N. Murray$ op. cit., p. 41.

"It seems to me, however, that there is one vital difference between the two categories. Trustee territories are handed over to the administering -power with certain specific obligations attached and it is clearly the duty of trustee nations to carry out those obligations on behalf of the League of Nations or the World Organisation or whatever the body may be. Non-trustee territories, on the other hand, have no such specific obligations".1 In the case of the mandated territories, they were held by the mandatory powers under treaty obligations and rights - Article 22 of the Covenant of the League of Nations, and the various mandate agreements. Such treaty obligations and rights could only be modified or relinquished with the consent of the mandatory powers. Indeed, that was the clear understanding of the delegates at the San Francisco Conference. For example, the American delegate emphasized that his government "did not seek to change the relation existing between a mandatory and mandated territory without the former's consent".2 At the S Francisco Conference South Africa emerged as the resolute defender of the "terms of the existing mandates".3 South Africa argued against any attempt to whittle away the element of voluntariness; consequently a continual verbal battle developed between her and Egypt, which attempted at every opportunity to create an obligatory procedure.4 On the other hand, with regard to the ordinary colonies, these were the embodiment of sovereignty itself. The delegate from the United Kingdom emphasized the point as follows: 1 Verbatim Minutes, loc. cit., 14 May 1945, Running Nos. 19-20. The third category - territories detached from enemy states - had to fit in the general nature of things. 2 UNCIO, Doc. 310, Vol. 10, p. 440, 15 May 1945. 3 Ibid. 4 Verbatim Minutes, loc. cit., 22 May 1945, Running Nos. 15-25; 23 May 1945, Running Nos. 15, 18.

"If one once admits the right of World Organisation to intervene compulsorily in the internal affairs of nontrustee territories, one must admit the same right in metropolitan territories, and that is a right which I should have thought no member of the world organisation would admit". The organisation was to be an organisation of equal sovereign states.2 Thus the ordinary colonies of which sovereignty was never in doubt, could only be placed under the trusteeship system by a voluntary act of a' sovereign. It was only with regard to this category that the world "voluntary" 3 is specifically used, despite the general non-obligatory nature embodied in the whole of Article 77 of the Charter, indeed, perhaps #used out of an abundance of caution".4 In our view this difference in the legal foundations of the element of voluntariness in the provision of the Charter concerning the placing of territories under the trusteeship system leads to two different interpretations. In the case of the ordinary colonies the legal principle 1 Ibid., 14 May 1945, Running No. 19. 2 Ibid., 15 June 1945, Running No. 46, per U.S.A. delegate. 3 Article 77(I)(c) of the Charter. This is in accord with the history of these two categories during the war. Eg, Declaration by the United Nations on National Independence, 9 March 1945, Postwar Foreign Policy preparation, op. cit. Appendix .12, p. 470; Arrangements for Territorial Trusteeships, (Projected Chapter IX on Trusteeship as prepared prior to the Dumbarton Oaks Conversation), 6 July 1944, ibid., Appendix 39, p. 606; Memorandum for the Secretary (Memorandum transmitted by Mr. Pasvolsky to Secretary Stettinius for use in connection with the Crimea Conference) 23 January 1945, ibid., Appendix 55, p. 661; Edward R. Stettinius, op. cit., pp. 212-213. 4 International Status of S.W.A. ICJ Reports 1950, p. 128 at 139. sovereignty - on which voluntariness is based, is unrestricted, except by principles of international law.1 Whereas with regard to the mandated territories, the "orphan territories",2 it was prescribed by the provisions of the treaty. That is, in this case the fulfilment of the objectives of the treaty, as well as the general purpose of the treaty. This difference in interpretation may be fine, but it is nevertheless of great legal significance. It was from this premise that the International Court, though no distinction in the legal foundations of the two categories was made, agreed with the General Assembly3 that the Government of South Africa had forfeited her right to administer the mandated territory.4 Therefore, the non-obligatory nature of the Charter provisions relating to placing of territories under the trusteeship system can only be resorted to in good faith, and not to frustratgae objctives and purpose of the very instruments - Covenant of the League and the Mandate Agreement - from which the legality of the element of voluntariness is derived. This means that consent here is of two types, hierarchical in the degree of absoluteness. 'These may be categorized as the subjective consent and the objective consent; or considered from the point of view I During the early part of the life of the United Nations there were no principles of international customary law of decolonisation; such principles, it seems, evolved after 1960. See also, Bin Cheng's apt illustration of the limitation on sovereignty derived from international customary law and treaty obligations, the same can be applied to our argument here. Bin Cheng, "The Rational of Compensation for Expropriation", 44 The Grotius Society Transaction (1958/59), p. 267, at p. 276. 2 Verbatim Minutes, loc. cit., 10 May 1945, Running No. 17, per delegate from Australia. 3 U.N. General Assembly Resol. 2145(XXI), 27 October 1966. 4 Namibia Advisory Opinion, ICJ Reports 1971, p. 16, at p. 47, para. 95; see also, Vienna Convention on the Law of Treaties, Article 60(3). of being a right: lus strictum and Jus aequum. In the subjective sense consent is derived from the attributes of sovereignty, and thus it is 1 unrestricted except by principles of international law. On the other hand, objective consent is restricted by the objectives and the purpose of the treaty from which it is derived. In this regard the Permanent Court of International Justice stated: "No doubt any convention creating an obligation of this kind places a restriction upon the exercise of the sovereign rights of the State".2 Thus, in this second category it can be objectively determined whether consent is properly withheld or not. From this point of view, it is not the unquestionable prerogative of a sovereign in the exercise of its rights that is paramount; the realization of the objectives and the purpose of the treaty is equally important. This is particularly so when the withholding of consent appears not to be in conformity with the objectives and the purpose o'khe treaty in question; or it seems done in bad faith. Considered from this angle the conclusion of Judge de Visscher in his Dissenting Opinion in the International Status of South West Africa, Advisory Opinion, that "the mandatory Power, while remaining free to reject the particular terms of a proposed agreement, has the legal obligation to be ready to take part in negotiations and to conduct them in good faith with a view to concluding an agreement" 3 is legally very sound. Indeed, at the San Francisco Conference the limitations of the voluntary element as it related to the mandated territories were perceived. The delegate from Egypt placed .the issue of voluntariness in 1 See generally, Ian Brownlie, Principles of Public International Law. Oxford: Clarendon Press, 1973, Chap. VI; G. Schwarzenberger, "The Fundamental Principles of International Law", 87 Recueil des Cours 1955-1), p. 196, at 214 et seq., S.S. Lotus, PCIJ Reports, (1927), Series, A. No. 10 at p. 18. 2 S.S. Wimbledon Case, PCIJ Reports,(1923) Series, A. No. 1, p. 25. 3 International Status of S.W.A. ICJ Reports 1950, p. 128, at 188. its proper legal limitation; "at least, I can assert that no idea of an individual right, of an individual interest of the mandatory Power, could be defended to justify a mention of a necessary agreement of a mandatory Power to pass this territory under the system of trusteeship'. General Smuts, then the Prime Minister of South Africa, also saw the limitation of the element of voluntariness as it applied to the mandated territories. He argued in the South African House Assembly: "You are morally bound not to take up a recalcitrant and non-posumus attitude, and say: I am not going to make an agreement with UNO, I am not going under the Trusteeship Council ... No, you must take steps to enter into an agreement. You must be serious about it, but there is no compulsion laid on you to accept terms. To my mind the position is quite simple. What sub-section (2) of Article 80 was intended to prevent was that a mandatory should say: The League of Nations is dead; I am in this position, I do not want to come under UNO at all, and I do not want to come under the Trusteeship Council at all. That position is precluded. "2 " From the above consideration it is, therefore, legally incorrect to present the element of voluntariness in these provisions of the Charter, so far as they relate to placing of mandated territories under the trusteeship system, as an unrestricted feature of consent; let alone as having ousted the principle of international accountability from these 3 territories. 1 Verbatim Minutes, loc. cit., 22 May 1945, Running No. 15. 2 Union of South Africa. Debates of the House of Assembly, Vol. 56, Col. 3676. 3 See generally, South West Africa Cases, Preliminary Objections, Joint Dissenting Opinion of Judges Spender and Fitzmaurice, ICJ Reports 1962, pp. 516, 534; ibid., Judge Ad Hoc Van Wyk, Dis. Op., p. 615; ibid., PleadinRs, Vol. II, pp. 127, 129.

(ii) Temporary Trusteeship Committee The Executive Committee of the United Nations Preparatory Commission I proposed the establishment of a temporary trusteeship committee. However, when the United Nations Preparatory Commission discussed the issue in November/December 1945 it rejected the proposal.2 It was asserted by counsel for South Africa in the South West Africa Cases that the rejection of this proposal was an indication that the United Nations purposely declined to take over the supervisory functions of the League of Nations; and the inference is drawn that, therefore, the mandates system and the mandate agreements, including the principle of international accountability, lapsed with the dissolution of the League of Nations.3 It should be noted that, however, the Court did not accept this contention, even in the Second Phase of the South West Africa Cases the point was not considered. On the contrary, the Cou44'rule~l"in 1950, 1962 and in 1971 that the mandates system, as an institution, survived the dissolution of the League of Nations.4 However, this point was so tenaciously advanced by counsel for South Africa in the South West Africa Cases,5 and emphasized in the Joint Dissenting Opinion of Judges Spender and Fitzmaurice, that it is essential to consider it in detail. 1 Doc. PC/EY/ll, 22 August 1945, p. 2; also Doc. PC/EX/113, p. 55. 2 Doc. PC/TC/42, 22 December 1945; also Doc. PC/20, p. 49. 3 South West Africa Cases, Pleadings, Vol. VIII, pp. 379-387. 4 International Status of S.W.A., ICJ Reports 1950, at pp. 132-136; South West Africa Cases, Preliminary Objections, ibid., 1962, at pp. 332-333; Namibia Adivsory Opinion, ibid., 1971, p. 16, pp. 32-35. 5 South West Africa Cases, Pleadinzs, Vol. VIII, pp. 379-387. 6 Ibid., Preliminary Objections, ICJ Reports, 1962, pp. 531-546. The temporary trusteeship committee proposed by the Executive Commnittee of the United Nations Preparatory Commission was not-seen as, nor intended to provide for, a statutory transfer of the mandates from the League of Nations to the United Nations. And it should be emphasized that not a single state did oppose the proposed temporary trusteeship committee on the grounds that the United Nations had no supervisory authority over the mandated territories.2 And more pertinent to our analysis at this stage, the proposed temporary trusteeship committee was not finally turned down because of doctrinal hiatus between the mandates system and the trusteeship system. In fact the proposal was intended to provide mainly for harmonious operation of Articles 85 and 86 of the Charter of the United Nations.3 Almost all the mandatory powers accepted the proposal for establishment of an interim body, and stressed the fact that since "the mandates commission was now in abeyance and countries holding mandates I The proposal was worded as follows: "It (Sub-Committee 4) should study the questions arising from the winding up of the mandates system and examine the feasibility of providing for a temporary committee of the General Assembly to receive reports which might be forwarded by mandatory states, pending the ultimate disposition of mandated territories." PC/EX/ll, p. 2, 22 August 1945. 2 SouthWest Africa Cases, Pleadings, Vol. VIII, pp. 152-153. 3 UN Doc. PC/EX/113/Rev. I. p. 7; see also, Department of External Affairs (Canada), Report on the First Part of the First Session of the General Assembly of the United Nations. Ottawa, Edmond Cloutier, Printer to the King's Most Excellent Majesty, 1946, p. 24. 4 With the exception of Belgium, PC/TC/24, 5 December 1945. Thus the charge of "unsubstantiated evidentiary support" levelled against Counsel for the Applicants by Solomon Slonim remains a disapproval of an inelegant presentation, but not a factor in the legal argument, Solomon Slonim, op. cit., pp. 71-72. should have a body to which they could report". The draft provision in this regard was, therefore, worded as follows: "(V) Undertake, (that is the temporary trusteeship co-mmittee) following the dissolution of the League of Nations and of the Permanent Mandates Commission, to receive and examine reports submitted by the Mandatory Powers with respect to such territories mandate as have not been placed under the trusteeship system by means of trusteeship agreements, and until such time as the Trusteeship Council is established, 2 whereupon the Council will perform a similar function." (emphasis added.) This proposed amendment submitted by the American delegation clearly shows that the Trusteeship Council of the United Nations was expected to carry out supervisory functions in respect of mandated territories.3 The second motive was, thus, to provide a machinery to enable the mandatory states to continue performance of their already assumed international obligations. The principle had already been settled at San Franci o that the principle of international supervisionwould also form the core of the new improved sys tern. The proposal to set up a temporary trusteeship couiittee was finally turned down by the United Nations Preparatory Commission basically due to two reasons. In the first place, the socialist countries, led by the Soviet Union and Yugoslavia, and actively supported by the third world countries, particularly by Egypt and the Philippines, objected to the 1 Nicholls (South Africa), PC/TC/2, 30 November 1945; see also PC/TC/25, 5 December 1945; PC/TC/3, 11 December 1945; PC/TC/32. 2 PC/TC/ll, 4 December 1945. 3 Cf. Judge Ad Hoc Van Wyk, Sep. Op., South West Africa Cases, Second Phase, ICJ Reports 1966, p. 97, para. 13. 4 In the Executive Committee, the same countries, opposed the proposal for the establishment of an interim body, but then they were in the minority. See, Report of the Executive Committee to the Preparatory Commission of the United Nations, PC/EX/113/Rev. 1. p. 7, footnote. establishment of the temporary trusteeship committee or any other interim body on the grounds that such a body was not provided for in thi Charter; and thus it would be unconstitutional to establish an interim body.1 In the second place, and this appears to have been the main ground for the rejection of the proposed temporary trusteeship committee, it was feared that the temporary trusteeship committee would provide a pretext for delaying tactics on the part of the mandatory powers.2 So far as the provisions of the trusteeship system of the United Nations were an improvement upon the mandates system, the main reason for the rejection of the temporary trusteeship committee was motivated by a consideration of decolonisation. Instead it was considered appropriate for the purpose of speeding up the establishment of the Trusteeship Council if the "General Assembly of the United Nations calls on the States administer i g territories in accordance with the League of Nations Mandates to undertake practical steps for the implementation of the provisions of Article 79 of the Charter providing for the conclusion of special agreements on trusteeship terms."3 Bearing in mind that the main purpose of the proposed temporary trusteeship committee was to assist the General Assembly of the United Nations with the establishment of the Trusteeship Council and also for the time being to perform the task of the Trusteeship Council, for example 1 PC/TC/4, 1 December 1945; PC/TC/ll, 4 December 1945; PC/TC/29, 8 December 1945; see also Vernon McKay, loc. cit., pp. 59-60. 2 PC/TC/32, 12 December 1945; Most of the mandatory states favoured the temporary trusteeship conmittee, see supra note 4, page 83, note 1, page 84. 3 TC/TC/6, 3 December 1945. supervising the mandated territories, it is, thus, incorrect to conclude from the rejection of this proposal that the states purposely intended the mandates system and the mandate agreements to lapse upon the dissolution of the League. "The fact that a particular proposal is not adopted by an international organ does not necessary carry with it the inference that a collective pronouncement is made in sense opposite that proposed".2 No state suggested that. And it is strikingly significant to note that "no one disputed the principle that the United Nations was competent to supervise mandated territories until trusteeship agreements were entered into".3 Since there was no legal constraint it was considered that "it was not absolutely necessary to set up the temporary or ad hoc committee in view of the fact that the General Assembly would have a main trusteeto4 ship committee dealing with trusteeship matters in2J casi.. (iii) The Last Resolution of the League Assembly on Mandated Territories The thi3d issue of the transitional period which South Africa advanced to disprove United Nations assumption of the supervisory functions over the mandated territories is the history of the last resolution of the final Assembly of the League of Nations with regard to the mandated 1 PC/EX/92, Annex 1, p. 4, 12 October 1945; see also the interpretation of the participating states, U.S.A. - PC/TC/l1, 4 December 1945; United Kingdom - PC/TC/25, 5 December 1945; France - PC/TC/33, 11 December 1945; South Africa - PC/TC/2, 20 November 1945. 2 Namibia Adivsory Opinion, ICJ Reports 1971, p. 36, para. 69. 3 South West Africa Cases, Pleadings, Vol. IX, p. 141. 4 PC/TC/32, 12 December 1945, per Wellington Koo (China). territories. The main issue here is the withdrawal1 of the Chinese draft 2 proposal read to the final Assembly of the League on 9 April 1946; that is, the interpretation put for the withdrawal. The history of the last resolution of the Assembly of the League on mandated territories was presented by South Africa in the South West Africa Cases as one of the so-called "new facts"3 which were not, it was alleged, brought before the Court in 1950. And, therefore, if considered, South Africa argued, "it seems inconceivable that the Court would have arrived at its conclusion regarding an obligation on Respondent's part to submit to United Nations supervision".4 The other of the "new facts" was the proposal by the Executive Committee of the Preparatory Commission of the United Nations to establish a temporary trusteeship comittee. But South Africa had to retract this false claim and openly apologise to the Court6 whe*A~ e Ap'Picants presented the evidence7 to the Court.8 The "1966 last paragraph" of the 1 Perhaps it is inaccurate to talk of 'withdrawal' since this draft resolution was not formally submitted; the Chinese delegate only Intimated a wish to do so and read out the draft which, however, the chairman ruled out of order. The Applicants in the South West Africa Cases emphasized this point, Pleadings, Vol. VII, p. 291; and in fact Counsel for the Respondent conceded the point, ibid., p. 339. 2 League of Nations, Official Journal, Special Sup. (1946), No. 194, p. 76. 3 South West Africa Cases, Pleadings, Vol. II, p. 146. 4 Ibid., Vol. I, p. 346. 5 Ibid., p. 345; and for the analysis of this proposal see supra Chap. III, Sec. 3 (11). 6 Ibid., Vol. VII, pp. 336-337; and subsequently in the Namibia Advisory Opinion only asserted that the point was not properly put. Pleadings, Vol. I, p. 683. Of course, South Africa cannot be heard to plead her own negligence, GAOR, 5th Ses., 4th Com., p. 364, para. 62, per Mr. Ingles (Philippines). 7 International Status of S.W.A., Pleadings, p. 161. 8 South West Africa Cases, Pleadings, Vol. VII, p. 289-290. statement made by South Africa at the San Francisco Conference on 11 May 1945 was claimed to be one of the "new facts".1 We have shown above2 that it is highly doubtful that this "1966 last paragraph" existed before the South West Africa Cases. The Chinese delegation being desirous to ensure that under no circumstances should the principle of international accountability of the mandates system be frustrated, intimated a wish to submit a resolution on the subject, and then read out a draft which was worded as follows: "The Assembly, Considering that the Trusteeship Council has not yet been constituted and that all mandated territories under the League have not been transferred into territories under trusteeship; Considering that the League's function of supervising mandated territories should be transferred to the United Nations, in order to avoid a period of interregnum in the supervision of the mandatory regime in these territories.,,1 . Recommends that the mandatory powers as well as those administering ex-enemy mandated territories shall continue to submit annual reports to the United Nations and to submit to inspection by the same until the Trusteeship Council shall have been constituted.",3 1 Ibid., Vol. I, p. 345. 2 See supra Chap. III, Sec. 2. 3 League of Nations, 21st Ordinary Sess. of the Assembly, 1st Com. (General Questions) Provisional Minutes of the 2nd Meeting, 9 April 1946, Archives of the League, 1933-1946, 15/43739/43781; see also, Public Records Office, London U 3936/36/70, 11 April 1946; South Africa did not give a citation when she reproduced this Chinese draft, South West Africa Cases, Pleadings, Vol. I, p. 253. Hence the Applicants retorted that the "Respondent's third alleged new fact hinges upon a carelessly worded, undocumented, unsupported and probably inaccurate inference as why the Chinese Delegate in fact decided not to consumate his wish to propose a resolution", ibid., Vol. VII, p. 294. The Respondent reassured the Court, "when we make that statement we do not do so as an outside observer who knows nothing of what took place. South Africa was represented at the last Assembly of the League, and our representatives know what took place". ibid., Vol. VII, p. 339. Of course, the existence of this draft is now confirmed by the citation given in this note.

However, the Chairman felt that the question raised by China was premature, and thus ruled it out of order.1 And this Chinese draft proposal as read out was not heard of again. In the South West Africa Cases counsel for South Africa relied heavily on this Chinese draft proposal, particularly the fact that it was not proceeded with, in their attempt to disparage the 1950 Advisory Opinion. We will revert to this shortly. The now released British official documents have revealed that this Chinese draft proposal read out on 9 April 1946 was not the first, but the second draft. The first draft was never formally presented, but was shown privately to some delegations, for example to the British delegation on 8 April 1946.2 The first Chinese draft was more detailed, and, thus, throws better light as to the intentions of the Chinese, and for that reason we will reproduce it in extenso: A "The Assembly, Recognizing and reaffirming the special international status of those territories which were placed under League of Nations mandate at the end of the First World War because they were inhabited by 'peoples not yet able to govern themselves under the strenuous condition of the modern world' and which have not yet attained their independence, and Desirous of ensuring the continued application to the inhabitants of these territories of the benefits of the mandates system as stated in the mandate agreements in conformity with Article 22 of the Covenant; 1. Expresses its satisfaction with the manner in which the Council, assisted by the Permanent Mandates Commission, has performed the functions of the League with respect to the mandates system; 1 League of Nations, 21st Ordinary Sess. of the Assembly, 1st Com. (General Questions) Provisional Minutes of the 2nd Meeting, 9 April 1946, Archives of the League of Nations (Geneva), 1933-1946, 15/43789/43781. 2 Public Record Office, London, U 3978/36/70.

2. Recalls the role of the League in assisting Iraq to progress from status as an A mandate to a condition ,of complete independence; welcomes the termination of the mandated status of Syria, the Lebanon, and Transjordan which have, since the last session of the Assembly, become independent members of the world community; and points with pride to these examples of the accomplishment of the objectives of the mandates system; 3. Recognizes that, although the functions of the League of Nations with respect to the mandates system must necessarily cease with the termination of the League's existence, the obligations of the international community and of the mandatories toward the world community and toward the inhabitants of the mandated territories, under the mandate agreements, will remain until they are superseded by satisfactory arrangements; 4. Recommends to the States now administering territories which were designated as mandates that they take whatever steps may be necessary to insure the implementation of the basic principle of the mandates system that the well-being and development of the peoples of these territories having a special international status form a sacred trust of civilisation for whose performance the mandates system was established; 5.' Suggests to these States that, prior to the consumation of these necessary steps, they undertake to submit -the annual reports provided for in Article 22 of the Covenant and petitions received concerning the mandated territories to the appropriate organ of the United Nations, in consideration of the interest shown by the United Nations in the disposition of the Mandates, which found its expression in the Resolutions adopted by its First Assembly; 6. Exoresses the hope that the United Nations on its part will utdertake to receive such reports and petitions on behalf of the world community; and 7. Requests the Secretary-General to transmit a copy of the present Resolution to the Secretary-General of the United Nations and to each of the States which now control territories which were designated as mandates and which are not yet independent.1 1 Ibid., U 4004/36/70.

As was explained by the British delegation in their communications to their Foreign Office, the main reason of the Chinese for preparing this first draft was that "they had specially in mind Japanese mandated islands now in United States military occupation (note wording of clause 4)".1 The British delegation persuaded the Chinese delegation to defer presentation of this draft and to await declarations by the mandatory powers; and further urged the Chinese delegation to enter into further discussion.2 However, the Chinese delegation without prior warning, and it seems while negotiations were still going on, "taking South Africa speech as peg"3 intimated a wish to submit a resolution on the subject, and read out the draft, which in the light of the British official documents, is now known to be the second draft. This second draft was unacceptable to Australia, South Africa and to the United Kingdom; At India and 4 New Zealand were not prepared to oppose it if it were formally tabled. Thus the British Commonwealth was divided on this issue. It should be pointed out that the British Commonwealth prior to coming to Geneva for the final League Assembly had adopted certain contingency plans; to them "the main question at issue is one of tactics, namely whether (a) to take the initiative ourselves by proposing a draft Resolution of our own in order to forestall the risk of some embarrassing proposal by other Delegations, or (b) merely to have such a draft Resolution held in reserve for use only in case of need". 5 Australia and 1 Ibid., U 3978/36/70, 12 April 1946. 2 Ibid. 3 Ibid., p. 3. 4 Ibid. 5 Ibid., U 2795/1048/70, 13 March 1946.

New Zealand favoured the first position, while South Africa and the United Kingdom preferred the second alternative.1 The latter position prevailed because "South Africa urged upon the other Dominions not to raise the mandate issue, if they do, to do it in such a way that there will not be any need for a resolution to follow. 'General Smuts considered it highly important that nothing should happen at the League of Nations Assembly which would in any way affect the status *uol " 2 The British Commonwealth3 draft resolution held in reserve, was worded as follows: "The Assembly has takeni-note of the declarations in regard to the future of the mandated territories under their jurisdiction made at the first session of the United Nations General Assembly by States members of the League of Nations on whom mandates were conferred; The Assembly accordingly desires to place on record that it welcomes the resolutions on this subject adopted by the United Nations".4 The vagueness of this Commonwealth draft, which was, in fact, prepared by South Africa,5 is very glaring when compared with the last resolution6 of the final Assembly of the League. South Africa had indicated privately what her intention with regard to Namibia was: "The Union Government have made it clear that it is not their intention to place this Territory under trusteeship but to incorporate it in the Union of I Ibid. 2 Ibid., U 3484/1048/70, Note of a Meeting in the Dominions Office on Thursday, 28 March 1946. 3 Canada being a non-mandatory power had no strong position, ibid., U 2795/1048/70, 13 March 1946. And it seems India was not actively involved at this stage. 4 Ibid. 5 Ibid. 6 See infra note 1, page 97.

South Africa".1 This draft of the British Commonwealth was transmitted to the other mandatories, Belgian and French, and also to the United States and the Netherlands.2 Thus the major powers discussed the mandates prior to the final Assembly of the League. However, subsequently the second paragraph (the operative paragraph) of this British Commonwealth draft was rephrased as follows: "The Assembly has taken note of the expressed intentions of the States members of the League at present administering territories under mandates to continue to administer them in accordance with the general principles of the mandates for the protection and advancement of the inhabitants, until other arrangements regarding the respective territories shall have been made.''3 These then were the preferred positions of those delegations which were mostly concerned with the mandate question when the last Assembly of the League of Nations opened. These positions, by and large, attempted to conform not only with the principles of the mandes syftm but also with those of the Charter provisions relating to dependent territories. However, we should point out, and we will revert to this, that South Africa, in view of her stated position4 which was not in conformity with either the mandates system or the Charter provisions, was only determined to annex Namibia. It appears that South Africa led on the other powers for she could not support her position either with provisions of the mandate agreement or with those of the Charter, nor was it for that matter, then, tenable under principles of international law. For the principle of the then international customary law - conquest - had been superseded by treaty provisions. 1 Public Record Office, London, U 10057/7864/70, 17 December 1945, United Kingdom Working Party on Trusteeship. Interpretation of Article 79 of the United Nations Charter. 2 Ibid., U 2795/1048/70, 13 March 1946. 3 Ibid., U 3632/1048/70, 5 April 1946, Note of a Meeting in the Dominions Office Tuesday 2 April 1946, Liquidation of the League of League of Nations Mandates. 4 Ibid., U 10057/7864/70, 17 December 1945.

An interdepartmental memorandum of the.British Government stated the position correctly. Because of the importance of this memorandum and the understanding of the major States it gives during the transitional period, we would reproduce it in extenso: "It appears, therefore, that the United Nations Charter does not of itself place Mandated Territories under the Trusteeship System, or make it obligatory that such territories should be placed under the system. Nevertheless, the trend of the discussions at San Francisco seems to suggest that these territories should be placed under the system as a general rule, unless there was some special reason to the contrary ... It is assumed that (if only on account of the time factor involved) it will be impracticable for Trusteeship Agreements to be concluded in respect of existing Mandated Territories before the League of Nations is wound up. On this assumption the status of existing Mandated Territories on the winding up of the League would be open to considerable doubt. The Mandated Territories are held by the Mandatory Powers subject to certain international obligations in regard to both policy and accountability. On the assumption that a Mandatory Power could not therefore by a unilateral act alter the status of a Mandated Territory during any int)4egnumi. between the winding up of the League of Nations and the conclusion of a Trusteeship Agreement, some form of international sanction would be required for any such change of status". I (emphasis added) Thus the participating States, or at least some of them, at the last Assembly of the League of Nations were fully aware that mandated territories would not revert to ordinary colonies when the League was dissolved. The memorandum of the British Government shows clearly that any change in the status of a mandated territory should be sanctioned by the United Nations; and that has been the position of the UN ever since. The deliberations of the final Assembly of the League of Nations should thus be viewed in the light of this general understanding, as well as the purpose of the final Assembly of the League, which was aptly considered as not to "be over-ambitious or attempt to compete with the 1 Ibid., U 7865/7864/70, Mandated Territories - Transfer of League of Nations Functions to United Nations.' Memorandum by the United Kingdom Delegation.

7., United Nations Assembly in any way", and secondly, " it should not be an undignified shovelling away of a corpse into a pauper's grave".I1 It seems the Namibian question has been concerned, indeed, as the final Assembly of the League was, with the balance between the observance of the provisions of the Charter of the United Nations and the duty to honour the spirit and the principles of the mandates system. Nevertheless, the formulation adopted for the transfer of mandated territories to trust territories, despite its inexactitude, due to lack of legislative powers of international organisations, unlike state parliaments, does not legally permit for conversion of mandated territories into ordinary colonies. From the above analysis of the history of the last resolution of the League Assembly on mandated territories, it is clear that the Chinese delegation's initiatives forced the hand of the British Commonwealth. As is now revealed by the British official documets, t; British 2 Commonwealth strategy was not to raise the mandate issue. But as the result of the first Chinese draft which was privately shown to the British delegation, the first part of the strategy was put into operation, namely, to make declarations of intention and to promise "to continue to observe 3 general principles of mandate as interim arrangement". And when this did not satisfy the Chinese delegation, and they intimated a wish to submit a draft resolution, a draft which when read was found to be unacceptable to some members of the British Commonwealth, the final part of the 1 Ibid., U 3005/15/98, 20 March 1946, Foreign Office Minute, by Mr. P.J. Noel Baker (Minister of State). 2 Ibid., U 2795/1048/70; U 3484/1048/70. 3 Ibid., U 3978/36/70. strategy was resorted to, for it became "inevitable that some resolution will be required".I Thus it became necessary on the part of the British Commonwealth to submit a resolution. "In fact the terms of the Chinese draft (iA the second draft) appears to have convinced them (ie the British Commonwealth) of the expedient of agreeing on some wording which all could accept for fear of the Chinese moving a draft on those lines which would have led to an embarrassing debate".2 When all the countries interested in the mandates issue had reached an agreement3 the task of presenting the final draft resolution was given to the Chinese delegation.4 This final draft which became the resolution of the final League Assembly on the mandates question, was as follows: "The Assembly: Recalling that Article 22 of the Covenant applies to certain territories placed under mandate the principLqjdhat the wellbeing and development of peoples not yet able to stand alone in the strenuous conditions of the modern world form a sacred trust of civilization: I Expresses its satisfaction with the manner in which the organs of the League have performed the functions entrusted to them with respect to the mandates system and in particular pays tribute to the work accomplished by the Mandates Commission; 2 Recalls the role of the League in assisting Iraq to progress from its status under an 'A' mandate to a condition of complete independence, welcomes the termination of the mandates status of Syria, the Lebanon and Transjordan, which have, since the last session of the Assembly, become independent members of the world community; I Ibid. 2 Ibid., U 4010/36/70. 12 April 1946. 3 See Shawcross (UK) in his speech supporting the last draft resolution, League of Nations, 21st Ordinary Sess. of the Assembly, 1st Com., Provisional Minutes of the 3rd Meeting, 12 April 1946, Archives, (Geneva), 1933-1946, 15/43789/43781, p. 4., see also League of Nations, Official Journal, Special Sup. No. 194, 12 April 1946, p. 78. 4 Ibid., p. 3.

3 Recognizes that, on the termination of the League's existence, its functions with respect to the mandated territories will come to an end, but notes that Chapters XI, XII and XIII of the Charter of the United Nations embody principles corresponding to those declared in Article 22 of the Covenant of the League; 4 Takes note of the expressed intentions of the members of the League now administering territories under mandate to continue to administer them for the well-being and development of the peoples concerned in accordance with the obligations contained in the respective mandates until other arrangements have been agreed between the United Nations and the respective mandatory powers." This resolution incorporated parts from the three previous drafts, 2 that is, the two Chinese and the one of the British Commonwealth. The preambular paragraph, for example, used to some extent the formulation of the preambular paragraphs of the first Chinese draft. It also used the first two innocuous operative paragraphs of the first Chinese draft "! 3 "in the hope of facilitating Chinese acceptance 3 Very important information is now available fA the now released British official documents which clarifies substantially the last resolution of the final Assembly of the League on mandated territories. In view of the importance of this resolution in the Namibian question, particularly at the International Court of Justice, it is important to quote extensively from the British documents. The British delegation to the final League Assembly in a telegram sent to the Foreign Office after this resolution was presented on 12 April 1946, explained how the consultation went, in the following manner: 1 League of Nations, Official Journal, Special Sup. No. 194 (1946) p. 78. 2 See texts for notes: I, p. 90; 3,p. 88; 4, p. 92; 3, P. 93. 3 Public Record Office, London, U 3978/36/70, 12 April 1946.

"In the resolution adopted, reference in paragraph 3 to Chapters 11 and 12 of the Charter and in paragraph 4 to $well-being and developments of peoples concerned' were included mainly at the instance of the Australian Delegation who, ... interpret the latter phrase as excluding obligation to refrain from fortifying New Guinea (reference to Chapter 13 was added by the Chinese). New Zealand Delegation insisted on reference to United Nations in paragraph 4 in order to ensure that South Africa should agree to the future status of South West Africa with UNO and not with some smaller group of powers which might not contain New Zealand. This phrase also helped to secure Indian support. Ye gathered that the final text represented the extreme limit to which the South African delegation could persuade their Government to agree. United States observer has told us informally and may have informed his Government that the terms of the resolution are unsatisfactory since they do not provide adequate international safeguard for the immediate future of mandated territories. He seems of very (grp. undec.) and evidently does not realise all the implications involved. In the circumstances you may consider it worthwhile informing Washington that in drafting this resolution we took the greatestcare to prevent the inclusion of everything which might in any way embarrass the United States Gpvernft such as the language contained in the earlie i4tinese drafts".2 (emphasis added) Obviously South Africa did not, in the South West Africa Cases, have the last word on this point. The detailed historical background of the last resolution of the final League Assembly on mandated territories extensively considered above does not in the least support the contention of South Africa in the South West Africa Cases, "that the events at the final session of the League Assembly show very clearly, not only an absence of a contemplation of a transfer of League supervisory functions regarding Mandates to the The South African view recorded on the same day stated: "It would certainly prejudice the Union's case in'regard to South West Africa when it comes before the next Assembly of UNO if the Union finds itself unable to agree to a resolution at Geneva because it contained a direct reference to trusteeship". Ibid., U 3948/36/70, 12 April 1946. 2 Ibid., U 4006/36/70, 12 April 1946, Telegram from United Kingdom Delegation to League of Nations, Geneva, to Foreign Office.

United Nations in respect of territories not converted into trusteeship, but that there was a widespread contrary understanding, namely,- that there would be no report and accountability in that regard".1 Also the history of this last resolution of the Assembly of theLeague does not provide evidentiary proof for a conclusion, legally sound, to be reached to the effect that the ruling of the Court in the International Status of South West Africa, Advisory Opinion, "that the Union of South Africa continues to have the international obligations stated in Article 22 of the Covenant of the League of Nations and in the Mandate for South West Africa",2 as well as obligation to submit to international supervision, 3 was erroneous. The argument of South Africa is not only defective in logic, but it is also contrary to the entire historical background to the establishment of the mandates system.4 And more important it is invalidated by the documentary evidence relating to the transitional period, particularly, by the now released British official documents. The fact that the interim period mentioned in the first and second Chinese drafts was finally not provided for as proposed, which was the mainstay of the argument of South Africa, does not mean that it was left unprovided for. The Chinese concern was more apparent than real, and the other Powers not viewing the matter in the same light and considering the principle of international accountability to be well covered, 1 South West Africa Cases, Pleadings, Vol. VII, p. 88. 2 International Status of SWA, ICJ Reports, 1950, p. 19. 3 South West Africa Cases, Pleadings, Vol. II, p. 147. It is also incorrect to assert that the last resolution of the final Assembly of the League was the main point on which the Court in 1950 based its conclusion, ibid., p. 146. 4 See supra, Chap. I. led to it being noted that "in partirular the obligations in Chapter XII of the UN Charter appear to render the system of period reports suggested in the Chinese resolution, superfluous". Of course, to imply that by the non-acceptance of the second Chinese draft a tacit pre-supposition can be inferred in favour of reversion of the mandated territories to ordinary colonies, is a pre-supposition that has neither legal foundation nor documentary evidence. The contrary is the case; the point made by Judge Jessup that if a proposition to terminate the mandates was made 2 at the last League Assembly it would have been rejected, has turned out, indeed, to be the general view of the States at that time.3 The point was specifically considered by the British Government and rejected.4 The South African Government in complete disregard of the historical background, erroneously argued that the professed intentionsof the mandatories to "continue to administer them for the well-being and development of the peoples"5 did not include international accountability.6 The mandates system main difference from ordinary colonies was not the professed intentions of the administering powers to promote the well-being 1 Public Record Office, London U 4143/15/98, 17 April 1946, Conclusions of the Meeting of the British Commonwealth delegations held at the Hotel Beau Rivage, Geneva, 9 April 1946. 2 Dis. Op., South West Africa Cases, Second Phase, ICJ Reports, 1966, p. 343. 3 Public Record Office, London, U 2795/1048/70, 13 March, 1946. 4 I b id. ', 5 Last Resolution of the final League Assembly, para. 4, for the text see p. 97, note I. 6 South West Africa Cases, Pleadings, Vol. VII, pp. 84-85. lOOa and development of the dependent peoples;1 but that such intention, legal obligations in the case of the mandates territories, must be supervised by an international body. It is in the light of this over-riding fact that the reference to "the well-being and development of peoples" and to Chapters XI, XII and XIII of the Charter of the United Nations must be understood. To suggest a possibility of re-colonisation in the last resolution of the final League Assembly is legally unsound and historically fallacious. Contemporaneously, even the British Commonwealth saw in what was done and decided at the final League Assembly the retention of the principle of international accountability.2 The most inhibiting factor was that the League of Nations could not decide for the United Nations, because it was not "to compete with the United Nations Assembly in any way". 3 This point was made all the more important because "neither United States nor S.o6et Gwrnment will be represented and in any case, Soviet attitude might be rather adverse to any attempt to establish continuity between League and UNO".4 Thus, it was on a point of constitutionality that the second Chinese draft proposal was not acceded to, and not due to the unacceptability of the principle of accountability, which in fact, had already been embodied in the Charter of the United Nations. 1 See, eg, Vernon McKay, loc. cit., and generally, M.F. Lindley, The Acquisition and Government of Backward Territory in International Law: being a treatise on the law and practice relating to colonial expansion. London: Longnans, Green & Co., 1926. 2 Public Record Office, London, U 4148/15/98, 17 April 1946, Conclusions of the Meeting of the British Commonwealth delegations held at the Hotel Beau Rivage, Geneva, 9 April 1946. 3 Ibid., U 3005/15/98, 20 March 1946. 4 Ibid., U 2795/1048/70, 13 March 1946, Telegram from Foreign Office to HM Ambassadors; Washington, Paris, Brussels, Moscow, The Hague and Chungking.

Furthermore, it should be noted that the final Assembly of the League of Nations was not uninfluenced by what was decided at Sin Francisco and at London. At San Francisco, as well as at the Preparatory Commission meeting at London, a number of States, led by Egypt, attempted continually, to such an extent that there developed a verbal running battle between Egypt and South Africa,1 to limit the voluntary element in the submission of trusteeship agreement by the mandatory powers, but without 2 success. Hence, the non-obligatory procedure in placing mandated territories under the trusteeship system was embodied in the Charter, but, of course, properly circumscribed by Article 80 of the Charter of the United Nations. Therefore, an obligatory element could not be slipped through a resolution of the Assembly of the League of Nations.3 For the above stated reasons it was inconceivable that any formal and obligatory transfer of functions, particularly p litical,4 of the League of Nations to the United Nations could have been effected at the last Assembly of the League. However, it was the clear understanding, of course in good faith, of the States, even at the San Francisco Conference that "these territories should be placed under the System as a general rule, unless there was some special reason to the contrary".5 1 See supra note 1, page 77. 2 See supra, Chap. III, sec. 3(i) 3 Public Record Office, London, U 2795/1048/70, 13 March 1946. 4 General Assembly Resolution XIV(I), 12 February 1946, Sec. 'C'. 5 Public Record Office, London, U 7865/7864/70; And it was not only the British who held such view, Mr. Liu Chieh (China) put it as follows: "I am sure that at the time of the San Francisco Conference many delegations took it for granted that, upon the termination of the League of Nations the mandated territories would be placed under the Trusteeship System, which was hailed as not only a continuation but an improvement upon the mandate system", GAOR, 2nd Sess. Plenary, Vol. 1, p. 600. Hr. Liu Chieh was in the Chinese delegation to the United Nations Conference on International Organisation at San Franciscoi UNCIO, 1945, Docs., Vol. I, p. 19.

The only conclusion, therefore, to be drawn and which is supported by the now available British official documents on this period is that it was clear to the States that the principle of international accountability would continue. The now released British official documents clarify the meaning of the resolution of the final League Assembly on mandated territories as well as the statement made by the Chinese delegate when introducing the agreed draft. And, therefore, what was agreed upon in private is now no 1 longer only a question of conjecture, but largely a question of documentary evidence. Dr. Lone Liang, Chinese Delegate, stated that the "Assembly should therefore take steps to secure the continued application of the principles of the mandates system".2 It will be noted that the 3 Chinese Delegation in its first draft, as is now revealed, was concerned mainly with the Japanese mandated islands.4 The Ch-hese DMgate then mentioned the assurances given on this point. This obviously indicates that the Chinese delegation was assured in private that what it wanted to provide for, was covered by the assurances. It was understood, for example, that South Africa would not unilaterally change the international status of Namibia.5 Hence the Chinese delegation expressed its satisfaction. The statement made by the Chinese delegate, therefore, cannot be interpreted so as to support a contention that there was no tacit agreement as to the continuation of the principle of international 1 See, eg, the oral presentation of Counsel for South Africa, South West Africa Cases, Pleadings, Vol. VII, pp. 83-85. 2 League of Nations, 21st Ordinary Sess. of the Assembly, 1st Com. (General Questions) Provisional Minutes of the 3rd Meeting, 12 April 1946, Archives, (Geneva) 1933-1946, 15/43789/43781 p. 3; also L. of N. Official Journal, Special Sup. No. 194, 3rd Mtg. p. 79. 3 Supra, note 1, page 90. 4 Public Record Office, London U 3978/36/70, 12 March 1946. 5 Ibid., U 4010/36/70.

103 supervision.1 Such a contention flies in the face of documentary evidence. The States Members of the League realized that they could not legalise for the United Nations; but at the same time those who feared worse for the mandates territories were assured, in good faith, that the principles of the mandates system would prevail during the interim period. And it should be emphasized that this was expected to be very short;2 and other arrangements would be reached soon with the "United Nations which will apply in full the principle of trusteeship underlying the mandates system".3 The above consideration points to the conclusion that the noncolonisation principles, the embryonic principles of decolonisation, first enunciated at Versailles and subsequently upheld at San Francisco were not and, in fact, could not have been, comprom*d at~fhae final Assembly of the League of Nations, let alone renounced. 4 SUCCESSION IN INTERNATIONAL ORGANISATION The analysis immediately preceding leads to a number of conclusions. First, the statements made by South Africa during the transitional period were not entered as reservations on any question; 1 South West Africa Cases, Pleadings, Vol. II, pp. 146-147. 2 Cf. Judge Ad Hoc Van Wyk, Sep. Op., South West Africa Cases, Second Phase, ICJ Reports 1966, p. 114. 3 League of Nations, 21st Ordinary Sess. of the Assmbly, 1st Com. (General Questions) Provisional Minutes of the 3rd Mtg., 12 April 1946, 1933-1946, Archives (Geneva) 15/43789/43781, p. 4; also, League of Nations, Official Journal Special Sup. No. 194, 3rd Mtg., p. 79.

103a secondly, there was no intention among the participating States, explicit or otherwise, for the mandated territories to co-exist1 with the trust territories as two distinct regimes, except as a matter for transitional arrangements; thirdly, and as correlative of the latter, it was the expressed intention of the States that the mandated territories would be placed under trusteeship unless other arrangements could be entered into with the United Nations. And it is our submission that, at least, as it related to the mandated territories, no arrangements could have been entered into legally with the United Nations which would have replaced the international status under the mandates system by ordinary colonial status. Finally, therefore, the common intention of the States at the San Francisco Conference, the London meeting of the United Nations Preparatory Commission, and at the final Assembly of the League of Nations was, and in good faith, that the United Nat. &s wom d'assume the supervisory functions over the territories for which the principle of international accountability applies and that the mandated territories would be placed without delay under the trusteeship system. These conclusions are not only in accord with the expressed intentions of the participating States, but are also in conformity with the historical development of the principle of international accountabi ity.2 1 Not a single delegation suggested it at the San Francisco Conference, see, Verbatim Minutes of the Technical Committees, loc. cit., also UNCIO Docs. 22 vols. Judges Spender and Fitzmaurice in their Joint Dissenting Opinion proposed a contrary view, South West Africa Cases, Preliminary Objection, ICJ Reports 1962, pp. 465 et seq. Their theory may be termed "parallel" theory; for the discussion of this see infra Chapter V. 2 See supra, Chapter I.

However, despite these clear intentions of the participating States, no formal transfer could be effected; not because of legal prohibition but mainly due to political inexpediency. As we pointed out earlier1 this was due to a number of reasons: the two most powerful States were not members of the League;2 the membership of the two organisations was not exactly the same; the League was considered a political failure which nobody wanted to be associated with. Viscount Cecil of Chelwood, the veteran British delegate, probably expressed the popular feeling then when he declared: "The League is dead: long live the United Nations".3 However, it is important to note that there was, nevertheless, no doctrinal break in the principle of international accountability. 1 Supra, Chapter III, sec. 3 (ii) and (iii). 2 The Soviet Union's public opinion considered the League as "the arena of international intrigue and backstage plots", and "as talkative as a magpie and as cowardly as a hare". Soviet News, London, 29 April 1946, 21e Assemblee de la Societe des Nations, Coupures de journaux, 4 boxes, UN Library Geneva. (These boxes of press-cuttings were found by accident, they were not (September 1977) entered into the reference cards of the Library or into the "Repertoire gendral of the Archives; however, the archivist may help.) 3 L of N, Official Journal, Special Sup. No. 194, p. 30. That statement was repeated by the world's press, see, 21e Assemblee de la Societe des Nations, Coupures de Journaux, 4 boxes, Archives (Library Geneva), but see supra note 2 above.

In international conventions the intention of the Parties, expressed or implied, is the law.1 Thus as a general rule the International Court does not supplant the intention of the parties with something extraneous to the treaty in question.2 The intention of -the parties, where in doubt, must be determined by the objectives, the purpose and the spirit of the convention in question. In ascertaining the objectives, the purpose and the spirit of the convention, the historical background to the conclusion of the treaty cannot be ignored;3 but not "to interpret a text which is, in itself, sufficiently clear"'4 in a contrary manner. It is thus in such instances where the intention of the parties is uncertain, that the principles of international law may be resorted to as interpretation aids; otherwise the treaty as a whole is law. It is from this premise that the principles of international law as interpretation aids should be considered, and f6k'hat Utter in the light of the prevailing jurisprudence of international tribunals. It suffices, for the present purpose, to state that the pendulum swings neither to excessive judicial enthusiasm for effectiveness nor to 1 H. Lauterpacht, "Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties", 26 BYIL (1949) p. 48; Quincy Wright, "Conflict between International Law and Treaties", 11 AJIL (1917) p. 566. 2 Although this is controversial, it seems reasonable and justifiable for the International Court not to ignore jus cogens in interpretation of treaties even if the intention of the parties is clear; on Jus cogens see generally, The Concept of Jus Cogens in International Law. (Conference on International Law. Loginissi (Greece) April 3-8, 1966). (Papers and Proceedings). Carnegie Endowment for International Peace, European Centre, 1967, Raporteur/introducer G. Abi-Saab; Rozakis, C.C., The Concept of jus cogens in the Law of Treaty. Amsterdam, North-Holland, Publishing Co., 1976. 3 Jurisdiction of the European Commission of the Danube, Advisory Opinion, PCIJ Series B. No. 14, p. 28. 4 Interpretation of the Statute of the Memel Territory, (Preliminary Objection) PCIJ Series A/B. No. 47, p. 149.

I stifling judicial cautiousness, but in a narrower range. ) The Principles of Effectiveness It seems more correct to analyse the Advisory Opinion of the International Court of Justice in the International Status of South West Africa concerning the question of assumption of supervisory functions of the League by the United Nations from the viewpoint of the principle of effectiveness and necessity than from any other principles. The first limb of the twin prong approach of the Court is succinctly expressed by the maxim: ut res mazis valeat quam pereat. It should be emphasized that the scope and applicability of the principle of effectiveness to any convention is determined and prescribed by the objectives and purpose of such convention. It was on the basis of the principle of effectiveness, for example, thatthe Iibternational Court made an important ruling which greatly helped the development of international institutions, that: "It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibility, have clothed it with the competence required to enable those functions to be effectively discharged".2 The Court went on to state: 1 See, generally, Right of Passage over Indian Territory, Merits, Judgment, ICJ Reports 1960, p. 6; The Case of the Monetary Gold removed from Rome in 1945, (Preliminary Question), Judgment of 15 June 1954; ICJ Reports 1954, p. 19 at pp. 32, 33; H. Lauterpacht, The Development of International Law by the International Court. London, Stevens, 1958, p. 91 et seq., R.P. Anand, International Courts and Contemporary Conflicts. London, Asia Publishing House, 1974, pp. 196 et seq. 2 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p. 174 at p. 179. Although this opinion is more pertinent to the principle of implied intention, it is, however, also relevant for analysis of the principle of effectiveness; see, eg, F.A. Vallat, "The Competence of the United Nations General Assembly", 97 Recueil des Cours (1959- II) p. 203 at p. 284 et seq.

"Under international law, the Organisation must be deemed to have those powers which, though not expressly providedin the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties". I This decision, although as it relates to the international personality of an international organisation was a legal innovation based on necessity; it was however based on sound judicial authority.2 Now South Africa in an attempt to preclude the application of the principle of effectiveness argued as follows: "In logic and in fairness it, therefore, cannot be inferred that when any mandatory power was prepared to accept such an obligation, that carried with it willingness to submit to supervision on the part of any other supervisory authority not specified in the agreement at that time".3 And hence she concluded: "And our broad contention is that in this respect the obligations on the part of the mandatory was terminated completely on the dissolution of the League 'akthe obligation was not converted into a similar obligation of report and accountability to any organ of the United Nations".4 The main flaw in this reasoning is the rigid dichotomization of either formal transfer of supervisory functions of the League of Nations to the United Nations or reversion to ordinary colony. The former as we pointed out above5 was considered at each stage during the transitional period and found not preferrable. On the other hand, the latter category was only considered seriously as diplomatic bargaining point at the 1 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, at p. 182. 2 eg, Competence of the ILO to Regulate Incidentally the Personal Work of the Employer, Advisory Opinion, 1926, PCIJ Series B, No. 13. 3 South West Africa Cases, Pleadings, Vol. VII, p. 77. 4 Ibid., p. 67. 5 See supra Chapter III, sec. 3.

Versailles Peace Conference in 1919, and was rejected on a point of principle. And during the transitional period the point was not seriously considered, it was only alluded to and ruled out as impracticable. For example, the British Foreign Office rejected it in the following terms: "2. Following possible courses have been examined: (a) Formal termination of Mandates System; (b) Formal action for transfer to UNO of League functions in respect of Mandates; (c) Any other course. 3. Course (a) appears undesirable because if Mandates were terminated before final arrangements had been made for future mandated territories, doubts might be cast on juridical position of Mandatory States. Objections to a League pronouncement that Mandates will be terminated at some future date on stated conditions are that: (i) League would be imposing conditions which it could not enforce, since it would no longer exist after April meeting".2 This documentary evidence supports the position advatnced by Judge Jessup that "it would not be an unreasonable supposition that if a resolution had been introduced saying that on the dissolution of the League all mandates would be terminated, that resolution also would have failed to secure the necessary support".3 The position of South Africa as stated above4 is thus clearly contrary to the understanding of the participating States during the transitional period. This position of South Africa is also extremely illogical, in fact bordering on cynicism. For the logical conclusion of this reasoning is that the combined effect of Article 22 of the Covenant, the mandate agreements and the relevant 1 See supra Chapter I, secs. 3 and 4. 2 Public Record Office, London, U 2795/1048/70, 24 March 1946. 3 South West Africa Cases, Second Phase, ICJ Reports 1966, p. 6 at p. 348. 4 See supra notes 3 and 4, p. 107. provisions of the Charter has converted a mandated territory into an ordinary colony, and that that was the intention of the parties: On the contrary at the San Francisco Conference the Chairman of the committee which dealt with the question of trusteeship system retorted sarcastically "I am sure the delegate of South Africa is not suggesting that any mandated powers could grab the territories of the Associated and Allied Powers",1 and the South African delegate responded in the negative.2 The position of South Africa cannot, therefore, be said to be the implied intention of the parties. A point that was specifically rejected cannot be revived impliedly.3 And, furthermore, such an implied intention is entirely contrary to the objectives, the purpose and the spirit of the mandates system. Judge Ad Hoc Mbanefo aptly argued: "The purpose of the Mandate however, is the well-being and development of the peoples of the territories as a sacred trust of civilization. That purpose has not yet been achieved, and no one has suggested that it ha~teen Mndoned or rendered invalid with the dissolution of the League ... and rights and obligations embodied in it became, as it were, maintained at the level at which they were on the dissolution of the League".4 (emphasis added) The International Court on the whole, despite its judicial cautiousness which may result in restrictive interpretation of treaties, (particularly when concern limiting the sovereignty of states) has, nevertheless, not shied away from interpreting conventions with humanitarian objectives liberally so as to allow for effective implementation of such 1 Verbatim Minutes, loc. cit., 18 May 1945, Running No. 26. 2 Ibid. 3 See, eg, South Africa's argument, South West Africa Cases, Pleadings, Vol. VII, p. 36 et seq. South Africa presented the theory of the principles correctly, but erred in application. 4 Ibid., Sep. Op., Preliminary Objections, ICJ Reports 1962, at p. 445. objectives. In this regard the Court stated that it "has already expressed the view that an interpretation which would deprive the 2 Minority Treaty of a great part of its value is inadmissible". In the International Status of South West Africa, Advisory Opinion, the Court held unanimously that Article 22 of the Covenant and the mandate agreement created an objective regime;3 indeed, such is the legal effect of a dispositive treaty.4 The Court further held that the 1 See, eg, Acquisition of Polish Nationality, Advisory Opinion, 1923, PCIJ Series B. No. 7; German Settlers in Poland, Advisory Opinion, 1923, PCIJ Series B. No. 6; Minority Schools in Albania, Advisory Opinion, 1935, PCIJ Series, A/B No. 64; International Status for SWA, Advisory Opinion, ICJ Reports 1950, p. 128; Admissibility of Hearings of Petitioners by the Committee on SWA, Advisory Opinion, ICJ Reports 1956, p. 23; South West Africa Cases (Preliminary Objections), Judgment, ICJ Reports 1962, p. 319; Namibia Advisory Opinion, ICJ Reports 1971, p. 16. 2 Acquisition of Polish Nationality, Advisory Opinion, 1923, PCIJ Series B. No. 7, p. 16. 3 International Status of SWA, ICJ Reports 1950, p. 133. 4 See generally, Arnold D. McNair, The Law of Treaties. Oxford: The Clarendon Press, 1961, Chapter XIV; Judge Fitzmaurice, "The Law and Procedure of the International Court of Justice: International Organisations and Tribunals", 29 BYIL (1952), p. 1. existence of that regime did not depend on the supervisory organ1 of the League of Nations; but by inference, it seems, on the political objectives of the convention.2 This ruling of the International Court is in accord with the common intention of the treaties (Covenant, Mandate for South West Africa and the Charter) taken in their entirety.3 It is also in accord with the historical circumstances4 surrounding the conclusion of these treaties. Furthermore, and in view of the fact that at the San Francisco Conference colonialism per se was denuded of any theoretical moral justification,5 an unsupervised mandated territory is a legal aberration. Thus to suggest that "the whole 'necessity' argument appears in the final analysis, to be based on considerations of an extra-legal character, the product of a process of after-knowledge. Such a theory was never officially advanced during the period of the League, and probably never would have been but for the dissolution of that organisation ... It is these subsequent events alone, not anything inherent in.the mandates system as it was originally conceived ... that give rise to the allege 'necessity' ,,6 is more of a 1 International Status of SWA, ICJ Reports 1950, p. 133. 2 Hungdah Chiu, "Succession in International Organisations", 14 International and Comparative Law Quarterly, (1965) p. 83, at p. 102. 3 See, eg, Mavrommnatis Palestine Concessions, PCIJ Series A, No. 2, p. 19; also, H. Lauterpacht, "Restrictive Interpretation and the Principle of Effectiveness in the interpretation of treaties", loc. cit., p. 76. 4 See supra Chapters I and III, sec. I. 5 Supra Chapter I. 6 South West Africa Cases, Second Phase, ICJ Reports 1966, p. 47. self-serving argument than realistic legal reasoning. It is common knowledge that many fully executed agreements both on the national and on the international level, do not provide legal disputations; it is only when for whatever reason, there is no performance, or when it is malperformance, that legal interpretation is called upon. The reasons for non-performance or for mal-performance cannot thus be extra-legal. For "throughout its history, the development of international law has been influenced by the requirements of international life".1 It should be finally emphasized, for the scope of the principle of effectiveness to be appreciated, that this principle is a tool for interpretation of treaties. Consequently, where the natural and ordinary meaning of the instrument in question is unambiguous, the principle of effectiveness will not be applicable; that is it will not be used to 2 contradict the natural and ordinary meaning of a tr#4y. 't (ii) Automatic Succession The presentation and evaluation of international legal principles relating to international organisations is often a reproduction of similar principles as they apply to States. Succession in international organisations appears to be one such area, particularly where there is a similarity in functions.3 1 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p. 174 at p. 178. 2 see generally, Interpretation of Peace Treaties (Second Phase) Advisory Opinion: ICJ Reports 1950, p. 221. 3 See, eg, Judge Fitzmaurice "The law and Procedure of the International Court of Justice: International Organisations and Tribunals", loc. cit., at pp. 8 et seq.

The theory of automatic succession as it relates to state succession appears to be complementary to sovereignty, and is a reflection of continuity and stability in international law and politics to the extent that in certain cases some or all of the former sovereign's rights and obligations automatically devolve on the succeeding sovereign, unless specifically provided for by treaty.1 With regard to international organisations the theory of automatic succession was advanced by Lauterpacht. Advancing the same rationale as that for which the theory is put forward in relation to states succession, he argued: "While as a rule the devolution of rights and competencies is governed either by the constituent instruments of the organisations in question or by special agreements or decisions of their organs, the requirement of continuity of international life demands that succession should be assumed to operate in all cases where that is consistent with or indicated by the reasonably assumed intention of the parties as inter reted in the light of the purpose of the organisation 4quesFTn."2 In support of this view Lauterpacht relied on the Advisory Opinion of the International Court in the International Status of South West Africa, and thus argued that the Court "applied in certain respects principles of succession to international organisations the object and character of which exhibit a pronounced degree of similarity".3 And he concluded that on that basis "the Court found that the main supervisory functions of the League of Nations with respect to the mandated territories devolved upon the United Nations".4 1 See generally, D.P. O'Connell, State Succession in Municipal Law and International Law. Cambridge, University Press, 1967, 2 vols. 2 OppenheiIm, L.; International Law 2 vols. (ed) H. Lauterpacht, 8th ed. London, Longmans, Green, 1955, Vol. I, p. 168. 3 Ibid., p. 169. 4 Ibid.

It is conceivable that the conclusion of the Court in the International Status of South West Africa that the "General Assemblyof the United Nations is legally qualified to exercise the supervisory functions previously exercised by the League of Nations", since not specifically provided for in the relevant international conventions, can be explained as automatic succession. The theory of automatic succession is by definition a substitution for expressed consent. Thus in view of the dual role consent plays in the formation of international organisations, first to create the 'functional field',2 and secondly to create machinery for transfer of functions, the theory of automatic devolution is rather circumscribed. In this particular case the machinery for transfer3 provided for in the Charter cannot be ignored. Also the attempts4 made on various occasions cannot be overlooked. On these accounts it seems the theory of automatic succession is of limited application as far as international organisations are concerned.5 However, this does not mean 1 International Status of SWA, ICJ Reports 1950, p. 137. 2 Judge Fitzmaurice "The Law and Procedure of the International Court of Justice: International Organisations. and Tribunals", loc. cit., p. 8. 3 Chapters XI, XII and XIII of the Charter of the United Nations. 4 See supra Chapter III, secs. 2 and 3. 5 See, I. Brownlie, Principles of Public International Law, (2nd Ed.), Oxford; Clarendon Press, 1973, pp. 653 et seq.; D.W. Bowett, The Law of International Institutions (3rd Ed), London: Stevens, 1975, p. 341 et seq.; Hungdah Chiu, "Succession in International Organisations", 14 International and Comparative Law Quarterly, (1965), p. 83, at p. 114; for the opposite view see, Oppenheim, op. cit., Vol. I, pp. 168-169; H. Lauterpacht, The Development of International Law by the International Court. London: Stevens, 1958, pp. 277-281; Judge Fitzmaurice "The Law and Procedure of the International Court of Justice: International Organisations andd Tribunals", loc. cit. that the Court's ruling in the International Status of South West Africa was legally unsound. That decision should be seen as a correct application of the principle of effective performance. Judge Fitzmaurice advanced the theory of automatic succession in international organisations from what he termed "functional field".1 The concept of 'functional field' as a means to explain automatic succession in international organisations cannot be copied lock, stock and barrel from state succession; for the former is to a very great extent created by treaties. For this reason the concept of 'functional field' does not lead far. Another theory that is relevant in this regard is that of implied power (succession).2 Important as it is in the development of the United Nations law, we would, however, not enter into it, particularly as it is, in many respects, similar to the principle oJffecftveness. I Judge Fitzmaurice, "The Law and Procedure of the International Court of Justice: International Court of Justice: International Organisations and Tribunals", loc. cit., p. 9; at that time Judge Fitzmaurice considered the United Nations as having succeeded the League of Nations, he stated: "An international organisation is extinguished and another like it is created, but without any specific indication whether the latter is in fact to replace the former. In that case there is nevertheless an automatic devolution of functions with reference to any institution of the former organisation, the character and objects of which were similar to a corresponding institution set up by the new organisation (eg the League institution of mandates and the United Nations institution of trusteeship)". (emphasis added). Ibid. Judge Fitzmaurice subsequently changed his view, for example, he stated: "The United Nations did not therefore take over the League mandates system as such, or any specific functions in connection with it". Joint Dis. Op., South West Africa Cases, Preliminary objections, ICJ Reports 1962, p. 319 at p. 532. 2 See generally, F.A. Vallat, loc. cit., Rudolf L. Bindschedler, "La delimitation des competences des nations unies", 108 Recueil des Cours (1963-1), p. 312-418; J.F. McMahon, "The Court of the European Conmunities Judicial Interpretation and International Organisation", 37 BYIL (1961), p. 320-350; see also supra note 5, p. 114.

CHAPTER IV THE UNITED NATIONS LEGAL APPROACH TO DECOLONISATION AND NAMIBIA 1 UNITED NATIONS RESOLUTIONS The initial attempts at decolonisation by resolutions of the United Nations, as exemplified by the question of Namibia, were of a gentle persuasion in nature. The tempo was obviously determined by the substance of the principles of international law on decolonisation at the time; and, more so, by the relevant provisions of the Charter of the United Nations, which were in need of precise interpretation. The provisions of the Charter, as will be shown below, though a marked improvement from those of the Covenant of the League of Nations, did not focus categorically on decolonisation. In fact, in relation to the undiluted colonies, what the Charter terms - non-self-governing-territories - the inclusion of the word "independence" in the provisions relating 1 thereto was vehemently opposed by the then colonial powers. The impetus of decolonisation under the auspices of the United Nations was to develop later by a "process of erosion of the opposition".2 1 See, eg, UNCIO, Vol. 10, pp. 421-606. 2 G Abi-Saab, in Les Resolutions dans la formation du droit international du diveloppement. Colloque, des 20 et 21 novembre 1970, itudes et travaux de IUHEI. No. 13, 1971. Geneva, 1971, p. 10.

117 The third world1 countries at San Francisco challenged the whole conceptualisation of colonialism. Unlike at Versailles where the "white man's burden", that auto-justificatory conception of colonialism, was merely recast into a humanitarian principle of "sacred trust of civilization". The delegates from the third world at San Francisco urged that the Conference should not adhere to ideas of racial superiority and inferiority; and argued that the phrase "not yet able to stand 2 on their own" was inappropriate and for that matter outmoded. They pointed out that militarily few countries can protect themselves; few are economically self sufficient; and among the dependent territories 3 some have ancient glorious civilization, which made the purported civilizing mission of colonialism, embodied in the phrase "sacred trust of civilization", unfounded. Thus, the third world countries conceptually denuded colonialism of its theoretical and moral bases. Consequently, the well-being of dependent peoples as forming "a sacred trust of civilization" was rejected. This shift in the conceptualisation of dependency from "sacred trust of civilization" (civilizing mission) to acceptance as "a sacred trust the obligation to promote to the utmost" 4 the well-being of the dependent peoples and to develop self-government 1 Admittedly at that time the term "third world" had not yet come into use, but it is used here and subsequently to denote the same area as today. At the San Francisco Conference the righttof dependent peoples were championed mostly by Egypt, China, Indias Iraq, Mexico and the Philippines. 2 United Kingdom in her proposal reproduced the wording and formulation of Article 22 of the Covenant of the League of Nations, see, UNCIO, Vol. 3, Doc. G/26 (d), pp. 609-614, at p. 611. 3 Ibid., Vol. 10, p. 497. 4 Article 73 of the Charter of the United Nations. or independence, '.was.the opening wedge for the decolonising efforts of the United Nations. It was from this modest foundation that the legal principles of decolonisation developed by the United Nations were to emerge, particularly, the principle of self-determination as a legal principle. The scope of the Charter on dependent territories: the obligation to promote to the utmost the well-being of dependent peoples - was constantly 2 broadly and progressively interpreted. The anti-colonial forces at the United Nations first dismantled the wall built at San Francisco between non-self- governing-territories and trust territories by broad interpretation of Article 73 of the Charter of the United Nations. Secondly, they denounced the theoretical and moral foundations of the principles of colonial administration. Thirdly, by applying the basic principles of the trusteeship system, which were rel tively better developed than those of mandates system, with independence as the goal,3 they reconstructed general principles for the administration of dependent peoples, without exception, and with a clear goal of independence under international supervision.4 These efforts of the anti-colonial group at the United Nations culminated in the evolution of concrete legal rules of decolonisation as embodied in the Declaration on the Granting of Independence to Colonial Countries and Peoples (the Decolonisation 5 Declaration).. 1 See, eg, Yassin EI-Ayouty, The United Nations and Decolonisation: The Role of Afro-Asia. The Hague: Nijhoff, 1971, p. 24. The provisions of the Charter on trusteeship territories envisaged independence as a possible goal. 2 For a detailed study of the efforts of the Afro-Asian countries to broadly interpret Article 73 of the Charter, see, ibid. 3 Article 76 b of the Charter. 4 See infra, Sec. 3. 5 G.A. Res. 1514 (XV), 14 December 1960; and see also, infra, Sec. 3.

As noted above,1 at the Versailles Peace Conference of 1919-20, South Africa, together with the other Southern Dominions, fought a dogged battle to annex Namibia.2 It was only due to an equally strong opposition. put up by President Wilson that Namibia was not outrightly annexed. South Africa saw the upheavals of the Second World War and the resulting demise of the League of Nations as a good opportunity to annex Namibia. At the earliest opportunity she put in a claim for formal annexation of Namibia as a fifth province of the then Union of South Africa.3 The Charter provisions on dependent peoples and territories were a marked improvement upon the mandate provisions of the Covenant.4 General Smuts, then the Prime Minister of South Africa, as Chairman of Commission Two of the San Francisco Conference, when introducing the report of Committee 2/4 observed that "the trustee s heme is not only much wider in its scope, but much stricter and much further reaching in its character", and warned that "if it is duly carried out the results may be very far reaching". 5 Although General Smuts did not spell out the 1 Supra. Chapter I, sec. 3, Negotiations at the Paris Peace Conference. 2 Indeed, South Africa never gave up the idea of annexing Namibia; eg, Smuts claimed that 'C' Mandates were as good as annexation, see, PMC Min. 2nd Sess., August 1-11, 1922, Annex 6. In fact the whole impasse has been due to South Africa's desire to incorporate Namibia, or at least not to let Namibia go. 3 See South Africa's statement of 11 May 1945 at the San Francisco Conference, reproduced in GAOR, 1st Sess., 2nd Part, 4th Com. Doc. A/123, pp. 3-4. Of course, South Africa's bid for annexation at that stage was ruled out of order. 4 For a comparative analysis, see, R.N. Chowdhuri, International Mandates and Trusteeship Systems. The Hague: Niihoff, 1955, pp. 50-59. 5 UNCIO, Vol. 8, p. 123. very far reaching results, it is, nevertheless, clear that he meant independence; and that has since been the bite noire of the South African Governments. This aversion to the independence of Namibia coupled with 2 the Boers' hunger for more land made South Africa more determined to annex Namibia; and at worse to retain the status quo. Furthermore, and in view of the South African's policy of racial discrimination, they feared the influence of the phrase "without dis3 tinction as to race" of Article 76 of the Charter. The Leader of the Opposition, Dr. Malan, emphasized that "it is high time, and I think we all agree, that we do not want South West Africa under the control of a foreign power which does not understand our problem of colour here, and which can make enormous difficulties for us by following a different policy in South West Africa".4 In fact, when at the San Francisco Conference the sentence "to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language I It was clear in the debates at the San Francisco Conference, particularly, from the insistence of the third world countries that the word "independence" be also included in Chapter XI of the Charter, that the political objective of the trusteeship system was independence. Eg, Mr. Romulo (Philippines) stated that independence was the actual spirit of the formula as it was then worded, UNCIO, Vol. 8, p. 138; see also, ibid., Vol. 10, pp. 460, 469; also, Ruth B. Russell and Jeannette E. Muther, A History of the United Nations Charter. The Brooking Institute, Washington, 1958, p. 817. 2 The whole history of the Boers had been one of expansion; as they came into conflict with the English, the Boers moved up north in the "Great Trek", and after the Anglo-Boer War, some trekked again on to Angola. See generally, Monica Wilson & L. Thompson, Oxford History South Africa. 2 vols., Oxford: The Clarendon Press, 1971. 3 Union of South Africa. Debates of the House of Assembly, Vol. 55, col. 2413, 26 February 1946; ibid; Vol. 56, col. 3685, 15 March 1946. 4 Ibid., Vol. 56, col. 3687, 15 March 1946. or religion," 1 was finally inserted at the insistence of the United States,2 "South Africa was not keen on this wording but did not-dare to 3 betray its dislike in the Committee". It was, thus, realised at once that the racial discrimination policy (later -partheid) of South Africa was contrary to the provisions of the Charter on dependent territories. As this policy developed it became more and more contrary to all principles of international law relating to dependent territories and peoples.4 To achieve her long cherished ambition and to allay her fears in an acceptable manner, South Africa adopted a strategy of the "wishes of the people" of Namibia.5 This was a legal approach which aimed at presenting the case for annexation as the wishes of the people of,Namibia and thus a progressive legal interpretation of the mandates and the trusteeship systems - self-determination for colonisation! jt waargued that "as long as the ultimate goal of full liberty and self- government to which they aspire is reached, the Charter puts no limitations or conditions on the steps or means by which they reach it".6 But the crux of the matter is that incorporation of Namibia into South Africa would not have led to full liberty and self-determination. General Smuts further argued in the Fourth Committee of the General Assembly that 1 Article 76 c of the Charter of the UN. 2 Public Record Office, London, U 4526/191/70, Telegram: United Kingdom Delegation to Foreign Office, 9 June 1945. 3 Ibid. 4 See, infra. Chapter VII. 5 GAOR, 1st Sess. 2nd Part, 4th Com. (1946), pp. 232-235; Doc. A/123. 6 Ibid., p. 236, (Doc. A/C. 4/41 p. 3).

"the principle enunciated by President Wilson in his Fourteen Points and by other allied statesmen during the 1914-1918 War, emphasized the right of self- determination of all peoples ..." At that time, early in the life of the United Nations, the content of the principle of-selfdetermination was very imprecise and fluid. South Africa asserted that the matter had been fully explained2 to the indigenous inhabitants by the Native Commissioners; and that the 3 overwhelming majority had favoured annexation. The Europeans passed a resolution in the all-white legislative assembly supporting annexation of Namibia to South Africa.4 On the basis of the so-called consultations South Africa submitted her case to the United Nations that "the inhabitants have declared their wishes to become free by integration into the free system of their former Mandatory State, to which they belong, and in whose free self-government and sovereign status they wish to share." 5 1 Ibid. 2 GAOR, 1st Sess., 2nd Part, 4th Com., (1946), pp. 232-235; Doc. A/ 123. But this claim was disputed, the alternative to incorporation was not explained to the people. In fact, it was alleged that the question was put as "whom do you prefer? the British, Russian, Italian or Portuguese". And the people responded that they knew only the British and they preferred them to the others they did not know; see, GAOR, Doc. A/C. 4/96, p. 13 (26 September 1947). However, Chief Hosea Kutako insisted that before he gave his answer there must be witnesses from the five big nations; and thus refused to give his answer. Subsequently, various groups sent petitions to the UN rejecting annexation. Ibid., pp. 5-7, 11. 3 GAOR, 1st Sess., 2nd Part, 4th Com. (1946), pp. 233-234; Doc. A/123. 4 Ibid., p. 232. 5 Ibid., p. 236, (Doc. A/C. 4/41, p. 3).

LL J 1 (emphasis added). Nothing could be more egregiously erroneous than the emphasized part. For the indigenous inhabitants were prohibited by the discriminatory laws from participating in the formation of the government.. Nor could they take part in the formulation of the laws that governed them, except in a negative manner, that the fear by the ruling white minority of the black majority prompted numerous laws intended to keep the blacks in a subservient position. On the contrary, in her diplomatic communications, South Africa advanced strategic grounds for her claim to annex Namibia. She argued that just as the security of the Pacific Ocean was of great importance to the security of the United States, so too was Southern Africa, and, particularly the Indian Ocean, to the Comnonwealth.2 For that reason South Africa suggested that (now part of ) and Namibia 3 "f should be declared strategic areas. But "if the territory were formally incorporated into the Union this would be unnecessai#Jand its incorporation is therefore an alternative solution of the question of security". 1 Many African groups in South Africa itself, trade unions, political movements, etc. petitioned the UN and urged that Namibia should not be annexed to South Africa. They all pointed to the undemocratic nature of the South African regime and its discriminatory laws. See, GAOR, Doc. A/C. 4/37/Add. I, pp. 3-5. 2 Public Record Office, London, U 164/36/70, 4 January 1946; ibid., U 165/36/70. 3 Ibid., U 245/36/70, 7 January 1946, Letter from the High Conissioner of South Africa to the Secretary of State for the Dominion Affairs; ibid.,CAB 129/6, p. 19, 8 January 1946. 4 Ibid., But this argument was rejected on military grounds, see, ibid., U 762/36/70, 19 January 1946.

It seems that the striking apparent conflict1 between the discriminatory municipal laws of South Africa2 and the international law principles on colonial administration was the decisive factor in the rejection of South Africa's plea to annex Namibia. One leader of the Namibian people emphasized in a petition to the United Nations that it was the "unfair treatment by the Union Government that compels us not to take their side".3 However, as it was still very early in the short reign of "domestic jurisdiction"4 of Article 2, paragraph 7, of the Charter of the United Nations, the resolution rejecting5 South Africa's request to incorporate Namibia did not refer to the discriminatory "'Native Policy" of the Government of South Africa. Such laws were at that time and stage regarded as being "essentially within the domestic jurisdiction" of South Africa.6 Instead the request was rejected on the 1 Many delegates from the third world countries emphasized the fact that the South African laws discriminated against Africans; see, eg, GAOR, 1st Sess., 2nd Part, 4th Com., (1946), pp. 47-48. 2 eg, Article 34 of the South African Constitution (Republican) disfranchise the Africans; see also, South Africa and the Rule of Law. International Commission of Jurists, Geneva, 1960. 3 Petition by Chief Hosea Kutako, GAOR, Doc. A/C. 4/96, p. 14. 4 eg, the French delegation at the San Francisco Conference attempted to stifle the evolvement of the principles concerning dependent territories and peoples with the plea of "domestic jurisdiction", UNCIO, vol. 10, p. 433; and for the French view of Article 2(7) of the Charter and their reliance on it, see, Robert S. Wood, France in the World Community, Leiden: Sijthoff, 1973, pp. 21-32. 5 G.A. Res. 65(0) of 14 December 1946. 6 See, eg, the debates in the General Assembly of the UN on the treatment of people of Indian origin in South Africa; GAOR, 1st Sess. (lst Part), Plenary, 50th-52nd Mtgs., 7-8 December 1946. grounds that the indigenous inhabitants are socially, educationally and politically not yet developed to take a decision about the permanent future status of their country. Paradoxically, in the concretization of the principle of self-determination by the United Nations this theory of preparedness was completely discarded.1 In a mild and courteous language2 the General Assembly of the United Nations declined to accede to the annexation of Namibia to South Africa; and instead recommended to South Africa to place the 3 Territory under the International Trusteeship System. This first resolution of the General Assembly on the question of Namibia set the pattern of the United Nations attempts to decolonise Namibia by 4 resolutions. 1 See, G.A. Res. 1514(XV), 14 December 1960, operative para. 3. 2 The Indian draft resolution was worded as-follows: "Rejects any solution involving incorporation ..."; this was changed to "is unable to accede to the incorporation" which was considered mild. GAOR, Doc. A/C. 4/65, and G.A. Res. 65(1) of 14 December 1946, respectively. The point was stressed by Dulles (USA): "This joint resolution does not give satisfaction to the suggestion of the Union of South Africa. But that denial is couched in terms which, while firm - are courteous and avoid offence and which make constructive suggestion as to the future". GAOR, 1st Sess. (2nd Part), Plenary, (23 Oct. - 16 Dec. 1946), p. 1326. 3 G.A. Res. 65(l) of 14 December 1946. 4 See, infra, Sec. 2.

126 One significant factor in South Africa's presentation of her application for annexation of Namibia is the shift in positions. South Africa in her first statement on the subject delivered at the San 1 Francisco Conference did not, at all, mention the wishes of the people; instead strategic and ethnological arguments were advanced, and these were strengthened by the alleged economic unviability of the Territory due to sparsity of the population and geographical disadvantages. South Africa originally phrased the item she requested to be put on the agenda as follows: "question of the desirability of the territorial integration in, and annexation to, the Union of South Africa of the Mandated Territory of South West Africa".2 This was subsequently changed to: "Statement by the Government of the Union of South Africa on the outcome of their consultations with the peoples of South West Africa as to the future status of the Mandated Territory, apd implementation to 3 be given to the wishes thus expressed. Thus, when the question was finally argued, South Africa emphasized what one delegate was later to describe as, the "fictitious consultation of the wishes of the people".4 This shift in emphasis, and in view of the fact that the so-called wishes of the people of Namibia had been challenged and the results had also 5 been refused by many groups of the Africans in Namibia; despite 1 See, UN Doc. A/123; see also, the debates in the Union Parliament on this question in early 1946, where General Smuts was questioned at length and urged to incorporate Namibia at once; not once did he refer to the wishes of the people. House of Assembly Debates, South Africa, 1946, vol. 55, cols. 2382-2383 (26 Feb. 1946), ibid., vol. 56, cols. 3675-3676, 3677-3682, 3685-3687, 3699 (15 March 1946). 2 UN Doc. A/97 (1946). 3 Ibid., both formulations were submitted by South Africa. 4 Delegate of the USSR, GAOR, 1st Sess. (2nd Part) 4th Com. (1 Nov. - 12 Dec. 1946), p. 89. 5 See UN Docs. A/C. 4/95 and A/C. 4/96, (1946-1947).

General Smuts' claim that "the Union Government was not animated by imperialistic designs";I nevertheless, puts the motive of South-Africa very much in que-stion. The difference in the phraseologies used is remarkable. In the first instance, the item put down sought the United Nations to allow colonisation of Namibia; and the second formulation, though aiming at the same result, was presented as an exercise in selfdetermination. The significance of this shift is that it shows that the Government of South Africa did not hesitate to lead on the other Member States of the United Nations. The United States and the United Kingdom doubted the efficacy of the consultations as a mode to test the wishes of the inhabitants.2 The Government of the United States, for example, stated: "We believe as a matter of principle that determination of the permanent status of any mandated or trust territory, whether this status is proposed as annexation, independence or some other form of self-government, should. in the interests of the inhabitants and in accordance with their freely expressed wishes and with the approval of the General Assembly which would have to satisfy itself on these points".3 The fairness and impartiality of these consultations also gave concern to the United States; and they emphasized that they "believe that determination of the desire of the inhabitants of any mandated or trust territory concerning their future status and decision as to their welfare must be made as a matter of principle by the competent United Nations organ on the basis of objective and impartial inquiry of Its own".4 As it will be 1 GAOR, 1st Sess. (2nd Part) 4th Com. Part I1, (16 Nov. 1046) p. 7 and as noted, South Africa's claim to annex Namibia at the Versailles Conference was based on purely imperialistic grounds, see supra, Chapter I. 2 Public Record Office, London, CAB 129/13, p. 68, Annex II at p. 73. United States communication to the South African Government, 24 Sept. 1946; ibid., CAB 128/6 p. 110 at p. 112, 10 Oct. 1946. 3 Ibid., CAB 129/13 p. 68, at p. 73, para. 2. 4 Ibid., see also, infra Chapter VIII. noted below the principle of self-determination, as was to be developed by the United Nations, was to contain these elements. Indeed, these are now the main characters of the right of people to self-determination. Although the United Kingdom was subsequently to support South Africa, 1 the fellow Commonwealth member, initially shared the same view as the United States. Indeed, the British Government favoured postponement of the question for a year; and in the meanwhile for a United Nations Commission of Eqnuiry to visit the territory to determine the wishes of the inhabitants.2 For these reasons, it is submitted that the responses of the South African Government to the United Nations efforts to bring Namibia under the system of institutionalized international supervision and later to decolonise the country were manifested by lack of good faith. Despite the courteous language of the General Assembly Resolution 65(l) and the gentle request to South Africa to subth* a trusteeship agreement, considered as a "constructive suggestion as to the future",3 nevertheless, South Africa refused to co-operate with the United Nations. Instead the Union Parliament adopted a resolution on the future status of Namibia in which, inter alia, it stated: "Therefore this House is of the opinion that the Territory should be represented in the Parliament of the Union as an integral portion thereof, and request the Government to introduce legislation, after consultation with the 1 Ibid., the British Cabinet decided not to reply to the US note until South Africa had done so, and then only to refer to the South African answer. 2 Ibid., CAB 128/6, p. 110 at p. 112, 10 Oct. 1946. 3 Mr. Dulles (USA) GAOR, 1st Sess. (2nd Part) Plenary, (23 Oct. 16 Dec. 1946), p. 1326. inhabitantsI of the territory, providing for its representation in the Union Parliament, and that the Government should continue to render reports to the United Nations 2 Organisation as it has done heretofore under the Mandate". "3 Thus on the facade of the "wishes of the people" of Namibia, South Africa declined to subject her administration of Namibia to the new international system for administration of dependent territories of the United Nations. Unlike the provisions of the Covenant of the League of Nations which covered only territories which were detached from the enemy states, the provisions formulated at San Francisco left no dependent territory outside the scheme: mandated territories, strategic areas, territories detached from enemy states, and the whole caboodle of colonies, were all covered, at least in theory. In practice, however, many countries with colonies were not yet ready to submit the administration of their dependent territories to an international supervision. The position of the United Kingdom, for example, just prior to the San Francisco Conference was that "there would be no question of our agreeing to place under any form of international trusteeship any of our colonial territories, other than those now administered under mandate".4 Small wonder then that the South African Prime Minister, General Smuts, in the debate on this question in the South African House of Assembly, while desirous of abiding by the new international norm on I Since the Africans do not vote and cannot be elected to the Union Parliament, the word "inhabitants" in that resolution of the all-white Union Parliament did not include the indigenous inhabitants. In fact the Africans were not consulted at all. 2 GAOR, Doc. A/334, letter from the Legation of the Union of South Africa at Washington, dated 23 July 1947. 3 Ibid. 4 Public Record Office, London, U 2676/191/70, 14 April 1945. Telegram from Foreign Office to the British Ambassador at Washington. dependent territories so as to placate the Commonwealth, North American 1 and Western European friends, was, nevertheless, perplexed as to where to place Namibia. In an equivocal manner he traversed the whole field of dependency "it is no longer a mandated territory ... I should rather associate our position with that of colonial territories ... it can be likened more to the colonial conception. It is not a colony, but it is almost tantamount to that; it is more in the nature of a colony ... We would prefer to have it dealt with under Chapter XI rather than under Chapter XII".2 This confusion is caused, mainly, by the fact that the South African Government was (and still is) a government of the minority settlers, which as the result suffer from the fear of the African majority attaining political power. On this point, in the same debate, Prime Minister Smuts stated: "I agree with the opinion that we should endeavour to keep out of the trusteeship system, and that we shcd kel away from the jurisdiction of the Trusteeship Council ... I want to be accommodating and co-operative, but there are certain things of which I am afraid, and I must say that I am rather afraid of that Trusteeship Council".3 Of course, the main unmentionable fear was the achievement of independence by Namibia, which would have been more assured if placed under the trusteeship system. That is, on purely institutional provisions, at that time trust territories pointed clearly to independence than ordinary colonies. However, in due course this distinction was slowly whittled away. Some years later, Malan, then the Prime Minister, as a result of the Nationalist Party's victory of 1948, in a characteristic forthrightness of the Afrikaner, minced no words: "its (the UN) object is 1 Union of South Africa. Debates of the House of Assembly, vol. 56, col. 3683, 5 March 1946. 2 Ibid., vol. 59, col. 10917 (21 Jan. 1947). 3 Ibid , see also note 3, p. 119 above and the accompanying text. directly or indirectly to force on to South West Africa, and also on the Union, an ideology which would mean the undoing of the white population in the country, namely, the surrender of power into the hands of the non-European population".1 As a result of this deep-rooted fear, which had in fact fomented a political philosophy based on white supremacy and apartheid, the South African Government was determined, in the defence of that policy, to keep Namibia out of the United Nations and the United Nations out of Namibia. Early in the reign of the Nationalist Party, in 1948, the Prime Minister, D.F. Malan, threatened that "rather than surrender South West Africa to International Trusteeship, he would prefer the Union to walk out of UNO".2 Admittedly, initially South Africa attempted unilaterally to transform Namibia from the status of mandated territory into an ordinary colony; and promised to supply reports on her administration to the United Nations under the provisions of Chapter X1 of the Charter.3 But, very soon, with the coming to power of the Nationalist Party, South Africa adopted an unco-operative attitude and withdrew even the promise to supply reports.4 But because the international supervision system had been institutionalized and internationalized the overwhelming majority of the Member States of the United Nations opposed South Africa's claim to 1 Union of South Africa. Debates of the House of Assembly, vol. 74, col. 186, (25 Jan. 1951). 2 Rand Daily Mail (Johannesburg) 17 November 1948, report of the speech-of the Prime Minister at the opening of the Nationalist Party's Transvaal Congress, headed "Malan Hints SA may leave UNO over SWA issue." 3 See supra. note 2, p. 129: also Union of South Africa. Debates of the House of Assembly, vol. 59, cols. 10917-10913, (21 Jan. 1947). 4 GAOR (1949), Doc. A/929.

J.JL unsupervised colonial administration in Namibia.1 The question of Namibia at the United Nations was, thus,-to centre around the applicability or otherwise of the principle of international supervision. As the theoretical and moral bases of colonialism had not yet been eroded and discredited, this was to come in the 1960s; both the proponents as well as the opponents of international accountability supported their arguments with the provisions of the mandates system, the Mandate for South West Africa, and the provisions of the Charter of the United Nationson dependent territories. Thus, at that stage at the United Nations and at the International Court of Justice2 the focus was rather on international supervision. Consequently, for a long time the United Nations efforts to decolonise Namibia by resolutions were restricted to attempts to get Namibia placed under the trusteeship system and, of course, South Africa consistently refused to propose a trusteeship agreement. 1 eg, Mexico and India at the 2nd session of the GA argued that Namibia could not retrograde but can only progress to independence. GAOR, 2nd Sess. Plenary, vol. I, (16 Sept. - 29 Nov. 1947), pp. 594 and 597 resp. 2 Except in the Namibia Advisory Opinion of 1971 where the Court for the first time in the history of the Namibian question considered the issue as one of decolonisation, see, ICJ Reports, 1971, p. 31, para. 52; in the previous opinions and judgments the issue was considered mainly as concerning international supervision. Even in the contentious cases of 1960- 1966, those who pleaded the case on behalf of Pnd Liberia did not see the case in its totality decolonisation, yet the historical background is not so narrow, it was only narrowly perceived, see, eg, Keith Highet (on the EthiopiaLiberian legal team), "The South West Africa Cases", Current History, vol. 52, (1967), pp. 154-161.

With regard to the principle of international supervision what should be stressed is that the mere fact that South Africa always pro1 mised to administer Namibia in the spirit of the mandates system, should have meant that the well-being and development of the indigenous population, in particular, would be the decisive factor. And the Powers in 1920 concluded that the welfare of dependent peoples is better catered for and protected under international supervision.2 South Africa could not have claimed to administer Namibia in the spirit of the mandates system and at the same time declined international supervision. The two went together. For that reason the International Court stated that "the obligation incumbent upon a mandatory State to accept international supervision and to submit reports is an important part of the Mandates System".3 A spirit of the mandates system without international supervision was thus a negation of the whole of the mandates system - the spirit and the letter - for the "spirit of the manda is international supervision". It was not the administration "as an integral part" 1 See, eg, UN Doc. A/334; Union of South Africa. Debates of the House of Assembly, vol. 60, col. 1361, (19 March 1947); ibid., vol. 75, col. 6898, (16 May 1951). 2 See supra Chapter II, sec. 3. 3 International Status of South West Africa, Advisory Opinion, ICJ Reports 1950, p. 136. 4 GAOR, 2nd Sess. Plenary (1947), p. 597. Indeed the basis of the necessity theory of the ICJ in the Advisory Opinion on the International Status of SWA of 1950, it seems, is derived from this point, see ICJ Reports 1950, p. 133.

1 which formed the spirit of the mandates system; that was a mere administrative device, In fact, when the phrase was specifically considered it was clearly stated "that the words 'as an integral part' were not considered as granting to the Governments of Belgian and France the power to diminish the political individuality of the Trust Territories".2 2 THE UNITED NATIONS LAW OF DECOLONISATION In the field of dependent territories and peoples the United Nations through various processes has been able to develop legal rules that are functionally and normatively distinct. In some measures, however, the experience of the League of Nations was germinal. It is historically factual and procedurally and functionally realistic to perceive the evolved rules as forming the United Nations Law of Decolonisation. What we prefer to term the United Nations law of decolonisation is thus a set of legal rules within an international organisation. But, it is not the constitutional law of the organisation, though derived from it; nor is it part of the international customary law, though conceptually 1 South Africa persistently referred to her right to "administer as an integral part" in her argument that she is free to annex Namibia; see eg, Union of South Africa, Debates of the House of Assembly, vol. 56, col. 3674, (15 March 1946). The same assertion has been repeated at the UN, eg GAOR, 4th Sess. 4th Com., 130th Mtg., (21 Nov. 1949), p. 213, para. 14. 2 GAOR, 5th Sess. Suppl. No. 4, (A/1306), p. 189. L. .1. influenced by it. And it is obviously different from the internal legal order1 of an international organisation. For, while the latter-is created by treaty the United Nations law of decolonisation is created by the practice of international organisations. Thus, the United Nations law of decolonisation is conceptually analogous to international customary law. For indeed, "the practice of the organs can be said to constitute new customary law, which grows within the Charter and is inculcated upon it".2 But at the level of formation there appears to be a significant dissimilarity. The psychological element - opinio juris - due to the conventional procedure of international organisations, does not seem to be a vital requirement in the formation of the rules of the United Nations law of decolonisation, as it is the basis of legal obligation under international customary law.3 We must make a disclaimer at the outset; we are not postulating a new source of international law. Many scholars of international law 1 M. Virally, "The Sources of International Law", in S~rensen, (ed), Manual of Public International Law. London: Macmillan, 1968, pp. 116-174. 2 Georges Abi-Siab, "The Development of International Law by the United Nations". Revue Egyptienne de droit internation, 24 (1968) pp. 95103, at p. 97. 3 See, generally, Anthony A. D'Amato, The Concept of Custom in International Law. Ithaca: Cornell University Press, 1971. 4 Richard A. Falk, "On the quasi-legislative competence of General Assembly", 60 AJIL (1966), pp. 782-791; ibid., The Status of Law in International Society. Princeton, NJ, Princeton University Press, 1970; Rosalyn Higgins, The Development of International Law by the Political Organs of the United Nations. London: Oxford University Press, 1963. Blaine F. Sloan, "The Binding Force of a 'Recommendation' of the General Assembly of the United Nations", 25 BYIL (1948), 1-33; Oscar Schachter, "The Quasi-Judicial Role of the Security Council and the General Assembly", AJIL, 58 (1964), pp. 960-965. Obed Y. Asamoah, The Legal Sinificance of the Declarations of the United Nations. The Hague: Nijhoff, 1966; D.H.N. Johnson, "The Effect of Resolutions of the General Assembly of the United Nations", BYIL 32 (1955-56), pp. 97-122; Michel Virally, "La valeur juridique des recommendations des organisations internationales", 2 AEDI (1956), pp. 66-96. have perceived the unique role of the General Assembly of the United Nations to generate a type of a legal order in certain specific'areas, particularly decolonisation, and correctly observed the legality and the legal effect of such activities. However, the jurisprudential constraint derived from the sources of international law of Article 38 of the Statute of the International Court of Justice, which were characterized as "the channels through which validity pours into the world* of reality and lends to the law its 'binding force' ",,2 has clouded conceptual perception and empirical anlaysis. It seems historically accurate to state that the sources of international law enumerated in Article 38 of the Statute of the Court were perceived from the point of view of international law of states and by states.3 The addition of international organisations4 to the actors at international level has, invariably, had some impact. A detailed analysis of his inact, though demanding and challenging, is, however, a monumental digression we will avoid. Our analysis will be limited only to the functional operation as legal rules of the resolutions of international organisations and by international organisations, particularly those of the General Assembly. There may be logic in the perceptible assertion of Professor Falk that "the characterization of a norm as formally binding is not very signicantly connected .with its functional operation as law".5 Many inter1 Richard A. Falk, The Status of Law in International Society, op. cit. p. 143. 2 Alf Ross, A Textbook of International Law (General Part), London: Longmans, Green and Co., 1947, p. 80. 3 For the history of Article 38 of the Statute of the Court, see, eg, Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals. London: Stevens & Sons Limited, 1953, pp. 1-26. 4 Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports, 1949, p. 174. 5 "On the quasi-legislative competence of the General Assembly", loc. cit. at p. 783.

.&-# national organisations' principles generated by their activities (usually resolutions) operate functionally as law. The study of the activities of international organisations with regard to dependent territories and peoples led us to the conclusion that, though generally the resolutions of international organisations, particularly those of the General Assembly, the organ that plays the most significant role in this field, are not strictly legally binding on States at the level of international legal order;1 nevertheless, in certain specific instances, such as decolonisation, they do create legal obligations for the Member States qua Members. The legal obligation thus created is what we prefer to term the United Nations law of decolonisation. The categorization of United Nations resolutions as nothing but mere recommendations with no legal significance, in the strict sense; or as binding only under one or the other of the classical (statutory) sources of international law, is from the point of view of fn te rnational organisations not totally realistic.2 Indeed, "le veritable problem ne se reduit pas a une simple alternative entre Vexistence et lVabsence d'une force obligatoire".3 1 cf., progressive elevation of the degree of enforceability from D.H.N. Johnson, loc. cit., Obed Y Asamoah, op. cit., Blaine F. Sloan, loc. cit., Rosalyn Higgins, op. cit., Richard A. Falk, loc. cit. 2 Clive Parry, The Sources and Evidence of International Law. Manchester: Manchester University Press, 1965, p. 21. 3 Michel Virally, "La valeur juridique des recommendations des organisation international," loc. cit. p. 69.

The famous statement of the Permanent Court of International Justice in 1927 that "international law governs relations between inde, I1. 2 3 pendent States , is now, in the light of the Reparation Case, modified. The needs of the international comununity and the requirements of international law and relations have led international organisations, particularly, the United Nations, to develop the capacity to operate upon the international plane. Thus, now international law governs not only relations between independent states, but also with, and international organisations. The provisions of the Charter of the United Nations relating to non-self-governing territories4 by design5 did not envisage, although a 6 clear disclaimer might have been considered as a sign of bad faith, any institutional actions in the promotion of the interest of indigenous inhabitants. It- was left to the administering powq (theA4wolonial powers) in question. With regard to the trust territories, on the other 7 hand, like their predecessors, the mandated territories, the focus was on international supervision.8 Thus, the overall institutional focal 1 The Case of the S S Lotus, Series A, No' 10, p. 18. 2 Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p. 174. 3 H. Lauterpacht, International Law and Human Rights. London: Stevens, 1950, p. 12 et seq; Leo Gross, "Expenses of the United Nations for Peace- Keeping Operations (Advisory Opinions of the ICJ)," 17 International Organisation (1963), pp. 1-35. 4 Article 73 of the Charter of the United Nations. 5 See supra sec. I and also Chapter III. 6 UNCIO, Verbatim Minutes: Technical Com. 11/4, Running Nos. 21-24, 14 May 1945. 7 See supra Chapter 1, sec. 3. 8 Chapters XII and XIII of the Charter of the United Nations. point on dependent territories and peoples was on good colonial administration and not on decolonisation. But soon the decolonisation of all dependent territories became institutionally an unbridgeable phenomenon. The United Nations is an organisation established by a multilateral treaty and thus operates basically under a conventional legal frame work. But as a "dynamic instrument of governments", the organisation, mainly through the General Assembly, developed legal rules and principles to regulate its functions and activities in the field of decolonisation, at any rate. The struggle during the early period of the United Nations was about the evolution and concretization of such Cules and principles.2 By processes of progressive quantitative and qualitative 'erosion of the opposition';3 theoretical and conceptual dismantling of the wall between non-self-governing territories and trust territories;4 the climate was thus created f prir~tples of decolonisation to evolve. It should be emphasized that here we are not concerned with principles which can be considered as authentic interpretation of the provisions of the Charter;5 nor are we concerned with those which 1 Introduction to the Annual Report of the Secretary-General on the work of the Organisation 16 June 1960 - 15 June 1961, GAOR, 16th Sess Supp. No. IA (A/4800/Add. 1), p. 1. 2 See generally, Yassin El-Ayouty, The United Nations and Decoloni sation: The Role of Afro-Asia. The Hague: Nijhoff, 1971. 3 Professor Abi-Saab, Les Resolutions dans la formation du droit international du developpement, op. cit., p. 10. 4 See supra Sec. 1. 5 Salo Engle, "Procedure for the de facto Revision of the Charter", Proceedings ASIL, (1965), pp. 108-116.

1 passed into international customary law; nor those which are a restatement of general principles of law;2 nor those based on prior agree3 ment. Of course, in actual practice of Member States such a compartmentalization is not water-tight, nor is it possible to determine with certainty the motivating factors for a particular Member State to vote for or against a particular resolution of the General Assembly.4 However, for a better understanding of the United Nations activities in the field of decolonisation the distinction should be maintained, at least conceptually. As has been observed, the provisions of the Charter of the United Nations on dependent territories and peopies were of a modest scope; except where by agreement with the administering state the trusteeship system was brought into operation. These provisions, Articles 73 to 91 of the Charter of the United Nations, form the law ofthe W ited Nations5 relating to dependent territories and peoples; it should be noted, however, not relating to decolonisation.6 Of course, the United Nations 7 may discuss any matter within the scope of the Charter; and the purposes 1 eg, R.R. Baster, "Treaties and Custom", 129 Hague Recueil (1970-1), pp. 31-105; ,A.A. D'Amato, op. cit. 2 See generally, Samuel A. Bleicher, "The Legal Significance of Re-citation of General Assembly Resolutions", 63 AJIL (1969) pp. 444-478. 3 See generally, Blain Sloan, "The Binding force of a 'Recommendation' of the General Assembly of the United Nations". 25 BYIL (1948), pp. 1-33, at p. 16 et seq. 4 D'Amato, op. cit. 5 Hans Kalsen, The Law of the United Nations. London: Stevens & Sons Limited, 1950. 6 However, the embryonic foundation for decolonisation of Article 76 of the Charter cannot be ignored. 7 Article 10, the omnibus article, of the Charter. already embodied in the Charter. To that extent authentic interpretation is merely a utilisation of the consensual jurisdiction. An interpretation of a clause of a treaty to which all the members agree is authentic interpretation, which is legally binding on the members as the original treaty. It seems that authentic interpretation is called for where the meaning being put on a particular clause was not envisaged when the treaty was agreed upon. However, in the United Nations the General Assembly does in its areas of competence interpret provisions of the Charter. The difference between mere broad interpretation and authentic interpretation is sometimes blurred. Whether a particular resolution of the General Assembly is an interpretation of a particular clause of the Charter could be determined from the language used in the resolution and from the debates; and particularly from the institutional operation. It is from a combination of such factors that a realistic determination canit made whether a particular resolution is an authentic interpretation of certain provisions of the Charter or not.2 The General Assembly Resolution 637 (VII) of 16 December 1952 - The Right of Peoples and Nations to Self-Determination - is an apt illustration of this point. It was explained that the first operative paragraph3 met the requirements of Article 1, paragraph 2, and 1 See, G. Tunkin, "The Legal Nature of the United Nations", 119 Hague Recueil (1966 - III) pp. 1-67, at pp. 35-36. 2 The language used in the resolution alone, knowing the horse-trading that goes on behind the scenes for every phrase used, is not in itself a sufficient determining factor either; cf. Jorge Castaneda, Legal Effects of United Nations Resolutions. New York: Columbia University Press, 1969, p. 120. 3 GAOR, 7th Sess. 3rd Com. 443rd Mtg. p. 150, para 18.

Article 55 of the Charter; and that the second operative paragraph was in accordance with Articles 73 and 76 of the Charter; and the conclusion was drawn "that the provisions relating to Non-Self-Governing and Trust Territories must be interpreted in the light of Article 1, paragraph 2, and Article 55 of the Charter".2 This interpretation, which by interpreting the provisions of the Charter relating to dependent peoples and territories in conjunction with the principle of self- determination of Articles 1 and 55 of the Charter was meant to strengthen the operational effect of the former, was challenged, particularly by the administering States, that it was narrow, biased and discriminatory because it restricted the principle of self-determination only to dependent territories and peoples.3 This was rather a postulation of a principio ad absurdum so as to cause its rejection.4 The interpretation of the majority5 appears tenable, for "a proper interpretation of a constitutional instrument must take into account not only the for* leteT of the original instrument, but also its operation in actual practice and in the light of the revealed tendencies in the life of the Organisation".6 1 Ibid., p. 157, para. 35; ibid., p. 177, para. 45' 2 UN Doc. A/2309 p. 5. 3 The Western European countries, USA, Canada, Australia and New Zealand, GAOR, 7th Sess. Plenary 403rd Mtg. Thus even the Member States which opposed this resolution did not consider it as a mere "pronouncement that is no more than opinion", as Castaneda does, op. cit., p. 120. It appeared to them "to have its object the amendment or extension of the Charter provisions relating to trust and non-self-governing territories". Per Sir Percy Spender (Australia) GAOR, 7th Sess. Plenary 403rd Mtg. p. 371, para. 175. 4 See eg. Van Langenhove (Belgium) ibid., para. 164. 5 40 vote to 14 with 6 abstention, ibid. p. 375. 6 Separate Opinion of Judge Lauterpacht. South West Africa - Voting Procedure, Advisory Opinion of 7 June 1955; ICJ Reports 1955, p. 67, at p. 106.

Another resolution which is an interpretation of the provisions of the Charter is the General Assembly Resolution 742 (VIII)1 Factors which should be taken into account in deciding whether a Territory is. or is not a Territory whose people have not yet attained a full measure of selfgovernment, of 27 November 1953. In this resolution the General Assembly interpreted the phrase "not yet attained a full measure of selfgovernment" of Article 73 of the Charter, a controversial phrase at the San Francisco Conference, in the light of the crystallized pattern in the field of dependent territories and peoples. In this resolution the language used was very clear. First, the General Assembly asserted its competence to "consider principles that should guide the United Nations and the Member States in the implementation of obligations arising from Chapter XI of the Charter ..."2 Then it laid down the principles under which non-self-governing territories may become fully selfgoverning.3 By this brpad interpretation the General Assembly arrogated to itself the right to determine whether the stage of self government has been reached or not. If the General Assembly is to receive the information on non-self- governing territories, then, indeed, it should determine the status of non-self- governing territories. It seems inconceivable that any Member State could realistically continue to dissent on this interpretation. Denmark, for example, did not support this resolution.4 She argued that "the State responsible for the adminis1 See UNCIO, Verbatim Minutes, Technical Commnittee 11/4, Running Nos. 39-40, 15 May 1945; also, UN Doc. A/C.4/104. "Note on the origin of Article 73 of the Charter: Working paper prepared by the Secretariat". 2 Res. 742 (VIII), 3rd preambular paragraph. 3 Ibid., 6th operative paragraph. 4 GAOR, 8th Ses. 4th Com. 329th Mtg. p. 87, para. 73.

145 tration of a territory had the right to determine the constitutional status of the territory placed under its sovereignty. None of the provisions of Chapter XI could be interpreted as modifying that principle in any way whatever".1 However, the following year when Denmark submitted a resolution for the cessation of the transmission of information under Article 73e of the Charter in respect of Greenland, she accepted this interpretation of the General Assembly.2 The General Assembly concluded3 its broad interpretation of Chapter XI with Resolution 1541 (XV), Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73 e of the Charter, of 15 December 1960, by which it also arrogated to itself the right to determine whether information should be given on a particular territory or not. It seems that the General Assembly Resolution 1514 (XV), Declaration on the Granting of Independence to Colonial Countries and Peoples, of 15 December 1960, is not wholly in the same vein as the resolutions discussed above.4 We must now turn to the custom-making effects of the resolutions of the General Assembly of the United Nations. 1 Ibid., 324th Mtg. p. 45, para. 6. 2 G.A. Res 742 (VIII) was referred to in GA Res. 849 (IX) of 22 November 1954. 3 The GA resolutions discussed are illustrative and not exhaustive. 4 See, J.F. Engers, "From Sacred Trust to Self-determination", 24 Netherlands International Law Review (1977) pp. 85-01; Parry considers it "as an interpretation of the Charter, is an exceedingly thin one". Clive Parry, op. cit., p. 22; cf; Salo Engel, loc. cit.

There is one important distinction that should be made at the onset. International organisations are subjects of international law and 1 as such their practice can contribute to the creation of custom. This is more perceivable with regard to the internal legal order. The requirement for an actual negative vote for the operation of the veto in the Security Council is an apt example.2 The point under consideration here is, however, different. The resolutions of the General Assembly although acts of an international organisation, should be viewed in a different light, perhaps only as evidence of custom-making. There are certain factors which put the resolutions of the General Assembly, as reflections of state practice, in an entirely different category from state practice in the classical formulation of customary international law. The most important factor is that in a resolution the Member States have the opportunity to register dissent. Thus consent may not be presumed from acquiescence, as it is the case in the slow gentle build-up of customary law. It is from this 3 perspective that unanimity assumes greater importance. But as the analogy of either conventional rules or of customary rules there is an unbridgeable doctrinal gap. For unanimity is not the same thing as consent in treaty nor is it necessarily4 enough "as a general practice 1 Michel Virally, "The Sources of International Law" in SOrensen (ed) op. cit., p. 139., 2 See eg, Constantin A. Stavropoulos, "The practice of voluntary abstentions by the Permanent Members of the Security Council under Article 27 para. 3 of the Charter of the United Nations", 61 AJIL (1967) pp. 737752. 3 See below. 4 In certain instances where the content is precise and clear, the addressees clearly pointed out, consciousness for a legal duty may be discernible; although, indeed, in actual pracrice it is nigh impossible to determine the mental state of States. See Virally, "The Sources of International Law", in Srensen (ed) o . cit., pp. 134 et seq. accepted as law". 1 It seems that unanimity, particularly when coupled with precise content and follow-up mechanism,2 is important to establish legitimacy in case of doubt,3 than to transform the resolutions of the General Assembly into an independent source of international law. However, to the extent that such resolutions of the General Assembly may show the understanding the Member States have on a particular issue then such resolutions may reveal opinio Juris. The fact that the resolutions of the General Assembly are themselves recommendatory is beside the point, for what is important in this regard is the understanding the Member States have on a particular issue as shown in the resolutions. The point was well put that "in strictly juridical terms, the UN General Assembly Resolutions on such subjects as Decolonisation and Independence ... may not be, in their immediate origins, 'hard' law; but as 'soft' law, they have a habit of turning out to be the international law-in-action of today, and the 'hard' law of tomorrow or the day after tomorrow". 4 It seems, as it relates to customary international law, the issue cannot be stated higher. 1 Article 38 c of the Statute of the International Court of Justice. The conventional hortatory element of the resolutions of the General Assembly may negate the psychological element. 2 Les Resolutions dans la formation du droit international du developpement, op. cit., but for the purpose of determining the rules of the legal order of an international organisation more factors should be considered, see below. 3 eg, Chicago Convention of 1944' Article 5 and the African States to refuse landing and overflight rights to South African aircrafts. 4 Edward McWhinney, The World Court and the Contemporary International Law-Makinz Process. Alphen aan den Rijn: Sijthoff & Noordhoff, 1979, pp. 5-6.

However, in some limited and uncharted field, for example, jurisdictional issue relating to outer space, the General Assembly risolutions themselves may in a short period approximate sufficient cogency of state practice and opinio juris to pass into international customary law.1 The resolutions of the General Assembly which restate general principles of law, whence their legal obligation may be derived, is a different category from the resolutions of the General Assembly which in a cumulative and organic process mould a set of rules into a verifiable legal rules. It seems to be generally agreed2 that the resolutions of the General Assembly incorporating general principles of law "are not in themselves creative of new rules of international law".3 Indeed they do not attempt to break new ground. But their significance is derived from the principle incorporated.4 1 See, eg, Bin Cheng, "United Nations Resolutions on Outer Space: lInstane International Customary Law?" 5 Indian Journal of International Law (1965) p. 23 at p. 35 et seq,; for other similar notions, see, R.Y. Jennings "Recent Developments in the International Law Commission: Its relation to the Sources of International Law", 13 International and Comparative Law Quarterly (1964) pp. 385-397 at p. 390 he uses the notion of "hot house"; Salo Engel, loc. cit. at p. 116 "pressure-cooker"; Abi-Saab, "The Development of International Law by the United Nations", 24 Revue Egyptienne de droit international (1968) pp. 95-103, at p. 101 concludes, "thus, the resolution functions as a stop-gap, a kind of 'soft law', until agreement on a firmer instrument, a source of 'hard law', can be reached". The last, it seems, is a categorisation of the obligatory character, whereas the first three are types of formulation. 2 Virally, "The Sources of International Law", in SOrensen (ed) op. cit. p. 162; Samuel A. Bleicher, loc. cit.; D.H.N. Johnson, loc. cit.; I. Brownlie, Principles of Public International Law. Oxford: Clarendon Press, 1965, p. 535. 3 Virally, "The Sources of International Law" in Shrensen, op. cit. p. 162. 4 Sloan, loc. cit. and Johnson loc. cit. hold the view that if the States voting for a resolution want to be bound then they are; here the legal obligation is derived from consent and not from the fact that it is a general principle of law, but the States would have been bound anyway.

On the other hand when the Member States had a prior, or even a subsequent, agreement which is then embodied in a resolution, even if just verbal, the legal obligation is entirely in a different category. The legal obligation of such a resolution is derived from the agreement, thus, it is at the same level as a treaty. Of course, to a common law legal thinking the fact that the agreement was not written2 will not present a conceptual dilemma. There is a final distinction to be made before detailed consideration of the norm- generating features of the resolutions of the General Assembly is attempted. International organisations have given 3 rise to what is termed the law of international institutions, or the law of the Charter,4 or international constitutional law.5 In these instances what is meant are structures, functions, powers and procedures of the organisation, the contractual legal frame work of the organisation. However, our analysis is beyond the conventional legal frame work; it is functiono-jural postulates of the United Nations. The categories of legal obligation sketched above, were only for the purpose of facilitating distinction between the legal obligation of resolutions derived from obligations founded on the traditional sources of international law and obligations founded on the legal rules generated by the United Nations itself. It is thus pertinent that we do not attempt to exclude legal obligations founded on the traditional sources 1 See Castaneda, op. cit., Chap. 6. 2 But see, Vienna Convention on the Law of Treaties, Article 3. 3 D.W. Bowett, The Law of International Institutions, 2nd ed. London: Stevens & Sons, 1970. 4 Hans Kelsen, op. cit. 5 G. Schwarzenberger, International Law as applied by International Courts and Tribunals, Vol. III, International Constitutional Law. London: Stevens & Sons, 1976. of international law. Such type of legal obligation operates in the field of decolonisation as well; and for that matter, at times in conjunction with the United Nations law of decolonisation. As indicated it is not the mere fact that a number of resolutions have been passed by the United Nations that will lead to the emergence of the United Nations law of decolonisation. There are a number of factors which, though not conclusive and exhaustive, should be fulfilled by such resolutions. (i) The Competence of the International Organisation: The functional area of the resolutions should be clearly demarcated; it should not be a nebulous seamless area. And more important it must be an area in the specific constitutive competence of the organisation. South Africa argued at the International Court that Resolution 2145 (XXI) of the General Assembly, which revoked the Mandate, was ultra vires. The Court held, however, that the General Assembly was competent to determine the Mandates; for "with the entry into force of the Charter of the United Nations a relationship was established between all Members .of the United Nations on the one side, and each mandatory Power on the other".2 It should be noted that Chapters XI, XII and XIII of the Charter give the United Nations broad competence in matters concerning dependent territories; and this is, of course, reinforced by the provisions of Article 10, the omnibus article, of the Charter of the United Nations. 1 Legal Consequences for States of the continued presence of South Africa in Namibia (SWA) notwithstanding Security Council Resolution 276 (1970), Pleadings, Vol. I, pp. 717 et seq. 2 Ibid., Advisory Opinion, ICJ Reports 1971, p. 45; and see also. infra Chapter VII. It may be added that the Purposes of the Organisation are so broadly phrased that liberally interpreted almost anything is intra vires, see D.W. Bowett, "The Impact of the United Nations Structure, including that of the Specialized Agencies on the Law of International Organisation", Proceedings of ASIL (1970) pp. 49 et seq.

(ii) The Objectives to be Achieved: The objectives to be achieved should not be contrary to principles of international law. This point is particularly reinforced by the previous one. Otherwise a clear intention on the part of the Member States to undermine or modify the conflicting existing principles of international law should be unmistakenly manifested. Where there are clear rules of international law applicable the activities (resolutions included) of the General Assembly are not likely to lead to emergence of an identifiable distinct legal rules. Such activities will only clarify and strengthen the existing international law principles. But where there is a vacuum, or substantial gaps, then the activities of the General Assembly are likely to lead to emergence of legal rules to provide the United Nations with the legal tools. This has been the case with regard to the activities of the General Assembly relating to decolonisation as exemplified by the question of Namibia. For instance South Africa suggested that partitioning Namibia could be a solution. But it was considered that "partitioning or annexation of such a Territory would be a serious infringement of the basic principle of the Mandate System, the purpose of which was not to divide indigenous peoples but to achieve their gradual emancipation".2 Subsequently, the 'territorial integrity' of Namibia was to become a positive element of the contentsof the General Assembly resolutions on the subject.3 1 UN Doc. A/3900, The Report of the Good Offices Committee on South West Africa. 2 Per Osman (UAR) GAOR 13th Sess. 4th Com. 756th Mtg., p. 58 para. 14. 3 G A Res. 2074 (XX) of 17 Dec. 1965; S C Res. 264 (1969).

It is not only the overall objectives to be achieved which should be in conformity with the principles of international law; equilly each step should not be legally questionable. This point in the Namibian question is well illustrated by the controversy over granting oral hearing to petitioners. The Permanent Mandates Commission did not allow oral hearing to petitioners. However, in view of the refusal of South Africa to transmit petitions from Namibia, and also having withdrawn2 the commitment to submit annual reports on Namibia, as it had been the practice under the League, the principle of international supervision was hardly realizable. As a result the General Assembly sought legal clarification on the advisibility for the Committee on South West Africa to grant oral hearing to petitioners from Namibia.3 The Court held that it would not be inconsistent with the status of Namibia for oral hearings to be granted, if such measure was necessary for the maintenance of effective international supervision.4 The International Court stated that it did not "find any justification for assuming that the taking over by the General Assembly of the supervisory authority formerly exercised by the Council of the League had the effect of crystallizing the Mandates System at the point which it had reached in 1946".5 Henceforth Namibian petitioners 1 For the practice of the League of Natisons, see Admissibility of Hearings of Petitioners by the Committee on South West Africa, ICJ Reports 1956, p. 23. 2 UN Doc. A/929 (1949). 3 GA Res. 942 (X) of 3 December 1955. 4 Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion of 1 June 1956: ICJ Reports 1956, p. 23. 5 =.; p. 29

I appeared regularly before the organs of the United Nations. And as a result granting of oral hearings to petitioners from non-self-governing territories became a legally established practice of the United Nations.2 In some instances, the activities of the United Nations are intended to modify and/or to change an existing principle of international law. The best example of this appears to be the declarations on Permanent 3 Sovereignty over Natural Wealth and Resources. (iii) The Addressee and/or the Target: The addressee(s) and/or the target(s) should be unmistakenly pointed out. In the case of Namibia the addressee was clearly stated, since, at the early stages, the question was perceived more as a dispute resulting from the refusal of South Africa to subscribe to the United 4 Nations decolonisational measures. And in the resolutions of the United Nations, in this case, the addressee was not varied or qualified. 1 First oral hearing was granted to Rev. Michael Scott, a British subject who at that time was working in South Africa, in 1955, GAOR, 10th Sess., 4th Com. 507th Mtg., Res 943 (X) of 3 December 1955; Thailand argued that the GA under Article 10 was a sovereign body and could make its own rules of procedure, and urged that the information that would be provided in no doubt would be relevant to the item on the agenda. Ibid. 506th Mtg. The first Namibian petitioner, Mr. Mburumba Kerina, appeared before the 4th Com. in 1957; GAOR, llth Sess. 4th Com. 570th Mtg. pp. 106 et seq., GA Res 1056 (XI) of 26 February 1957. GA Res. 2184 (XXI) of 12 December 1966, question of Territories under Portuguese Administration; Res. 2508 (XXIV), Question of Southern Rhodesia, see also, GAOR, 21st Sess. 4th Com. 1635th Mtg. et seq., Ibid., 24th Sess. 4th Com. 1822nd Mtg., resp. 3 CA Resolutions 1803 (XVII), 14 December 1962; 2158 '(XXI), 25 November 1966; 3016 (XXVII), 18 December 1972; 3171 (XXVIII), 17 December 1973. 4 Eg, GA Res. 941 (X), 3 December 1955, called upon the Government of South Africa "to give serious consideration on the observations and recommendations of the UN and urged South Africa to study the means of implementing such measures and recoaunndations."

A clear identification of the addressee will facilitate the determination of the response of the addressee to the proposed action. For this reason, it was pertinently observed that "a resolution recommnending to an Administering State a specific course of action creates some legal obligation which however rudimentary, elastic and imperfect, is nevertheless a legal obligation and constitutes a measure of supervision".1 And this is important to concretize the content of the resolutions, and thus to enhance the legal principles involved. Emphasizing the same point, though from a different angle, which difference is not important, one commentator argued that "not all decisions of international organisations deserve to be recognized as manifestations of international law, but those only which direct themselves to members of the organisation and bind them as to their conduct. They are to be distinguished from decisions not directing themselves to members and merely asking to be respected by them. The latter variety is not to be considered as a manifestation of international law".2 (iv) The Degree of Concreteness: The content of the resolutions should be unambiguous and concrete, and should be generally and abstractly formulated.3 It may be considered that the degree of concreteness signifies the overall international consciousness on the particular issue. The international consciousness 1 Voting Procedure on Questions Relating to Reports and Petitions concerning the Territory of South West Africa, ICJ Reports 1955 Judge Lauterpacht, Sep. Op. at pp. 118-119. 2 Maarten Bos, "The Recognized Manifestations of International Law: A New Theory of 'Sources' ", German Yearbook of International Law 20 (1977), pp. 1-76 at p. 25. 3 Les Resolutions dans la formation du droit international du diveloppement, op. cit: in the case of decolonisation evolved slowly, as it is reflected in the contenti of the early resolutions on the subject. In the nature of the working of international organisations what is contained in a particular resolution is a matter of drafting and bargaining. But it is to the overall cumulative effect of a number of resolutions on a particular issue that the concreteness of the content must be sought. For this reason the kernel of the point in the content should be persistently 2 stated until general and abstractly formulated rules can be culled. The first resolution of the General Assembly3 on the question stated the reasons for rejecting South Africa's request to annex Namibia and for recommending trusteeship; from these the General Assembly did not depart. The principles4 advanced in this first resolution on the question of Namibia derived their substance from the practice followed by 5 the League of Nations, and also incorporated the understanding at the 6 last Assembly of the League and were strengthened by the provision of the Charter of the United Nations. From these basic principles the United Nations, as long as the target and the desired goals remained unchanged, never wavered. Instead, throughout the years these principles have moved from the preambular to the operative paragraphs of the 1 Eg, GA Res. 227 (III), 26 November 1948; Res. 337 (IV), 6 December 1949; Res. 749 (VIII) 28 November 1953. 2 See eg, Samuel A. Bleicher, loc. cit. 3 GA Res. 65 (I), 14 December 1946. 4 Ibid. preambular paragraphs 3, 6 and 7; and it is important to note that these principles as stated in the preambular paragraphs were not disputed by any Member State. 5 See supra Chapter II. 6 See supra Chapter III. resolutions.1 Also these basic principles have subsequently been largely 2 endorsed by the International Court of Justice. The main positive point of this first resolution of the General Assembly on the question of Namibia, apart from the negative point of rejecting South Africa's request to incorporate Namibia, was that "the mandated territory of South West Africa be placed under the international trusteeship system".3 From the first session to the fourteenth session4 of the General Assembly the substantive points on the question of Namibia, which improved and crystallized in legal content due to the legal clarification of the various points by the International Court, were repeated in every subsequent resolution. The practice was, however, abandoned at the fifteenth session in 1960, and the emphasis was to shift from international supervision to self-determination.5 It has clearly emerged from our studies that the persistent repetition of the kernel of the particular point in a resolution by restatement and/or recitation is the instrumentality of concretization of the content.6 In the particular question of Namibia the contents of the resolutions were a progressive build-up of slab by slab in response to 1 GA Res. 65 (I), 1360 (XIV), 1568 (XV) on the one side and 2074 (XX) and 2145 (XXI) on the other. 2 International Status of South West Africa, Advisory Opinion, ICJ Reports 1950, p. 136. 3 GA Res. 65 (1), 2nd operative paragraph. 4 The GA session before the 15th session at which the Declaration on the Grantirng of Independence was adopted. 5 Compare GA Res. 1360 (XIV), 17 November 1959 to GA Res. 1596 (XV), 7 April 1961. 6 It is not a question of "shouting out" rules by repetition and the "size of the choir" as Prof. Arangio-Ruiz implies; but conscious efforts to resolve the question in dispute. Nor is it so mechanical like a "choir", but invariably it is k process of give and take; such a mechanical simplicity may even imply bad faith, which should not be unsubstantiatedly asserted. See Arangio-Ruiz, loc. cit. p. 476. the actions of the addressee, based on detailed study of the question, as well as accommodating new developments in the field of decolonisation. Finally, these culminated in the revocation of the Mandate1 and the establishment of a United Nations machinery to administer the territory 2 until independence. (v) The Degree of Acceptance: The resolutions should receive overwhelming support from the Member States; and not just the required simple or two-thirds majority.3 The support should be consistent and constant so as to demonstrate that it was not an empheral or incongruous expedient by a temporary majority, but a manifestation of conscious support for the content stated therein.4 Thus, unanimous and near- unanimous decisions will, of course, heighten the legal significance of such resolutions. In this respect the' degree of acceptance of the resolutions of the General Assembly demonstrates the understanding of the Member States of their legal obligation relating to the issue under consideration. The voting pattern of the General Assembly 1 GA Res. 2245 (XXI), 27 October 1966. 2 GA Res. 2248 (S-V), 19 May 1967. It will be recalled that direct international administration was considered at the Paris Peace Conference in 1920, see supra chapter I; but due to the experience of co.dominium it was not favoured. However, by 1967, the international organisations have had practical experience in this field, eg in Lybia and in West Irian. Thus the practicability was not questioned. See GAOR, 5th Special Sess. Plenary 1518th Mtg. 3 Les Resolutions dans la formation du droit international du developpement. op. cit.; AJP Tanmnes, "Decisions of International Organs as a Source of International Law". 94 Hague Recueil (1958- II ) pp. 261364. 4 It should be noted that at times abstention is due to the fact that a point at issue is not strongly stated; or due to minor issues. on the question of Namibia1 show a progressive increase in the majority, which finally may be said to amount to consensus on most points,2 if one 3 discounts the two inspired negative votes of Portugal and South Africa. (vi) The Implementation or Control Mechanism: The resolutions should also set up a clear and distinct implementation or control mechanism.4 As observed above the major contribution of the mandates system to the principles of international law concerning the administration of dependent territories and peoples was the establishment of the principle of international supervision. The same principle was incorporated in the United Nations system under the Trusteeship System. In the question of Namibia the core of the controversy centred around the application or non-application of the principle of international supervision. In the very first resolution on the question the General Assembly recommended that Namibia should be placed under the Trusteeship System.6 1 See the Chart of the General Assembly votes on the Namibia question at Appendix VII. The Chart shows a clear and unwavering majority, which at the same time kept on increasing. Throughout the years the progressive erosion of the opposition is clearly visible in the Chart. As principles crystallized even those Member States which were hesitant (abstentioners) became comumitted to the decolonisation efforts of the United Nations. 2 Eg, GA Res, 2145 (XXI), 27 October 1966; On consensus see, eg, Anthony A. D'Amato, "On Consensus", 8 Canadian Yearbook of International Law (1970) pp. 104-122. 3 With the change of regime in Portugal and the subsequent decolonisation of the former Portuguese colonies, South Africa is left alone. See also the Chart at Appendix VII. 4 See tenerally, Les Resolutions dans la formation du droit international du developpement, op. ckt. 5 See supra Chapter I, Sec. 3. 6 GA Res. 65 (I), 14 December 1946.

However, due to South Africa's refusal to place Namibia under the Trusteeship System, the General Assembly established several committees to implement its resolutions.1 For instance, once the competence of the United Nations to supervise South Africa's administration in Namibia was 2 legally established, the General Assembly set up a committee "to confer with the Union of South Africa concerning the procedural measures necessary for implementing the Adivsory Opinion of the International Court of Justice".3 The United Nations was also desirous that the implementation mechanism set up should also be consonant with the established practice. Consequently, the Committee on South West Africa was charged to utilize the questionnaire of the Permanent Mandates Commission of 1926.4 It is not only that the resolutions established clear implementation mechanism, they also, in most cases, set up a follow-up mechanism. The follow-up mechanism in most cases involved reporting to the next Session.5 And as a result, the question of Namibia was not only kept on the agenda of the United Nations, but most significantly intensive and extensive studies were carried out on most of the facets of the 1 Ad Hoc Com. on SWA Res. 449(V), 13 December 1950; Conmittee of SWA, Res. 749 (VIII), 28 November 1953; Good Offices Com. on SWA, Res. 1143 (XII), 25 October 1957; UN Special Com. for SWA, Res. 1702 (XVI), 19 December 1961; Ad Hoc Com. for SWA, Res. 2145 (XXI), 27 October 1966; UN Council for Namibia, Res. 2248 (S-V), 19 May 1967 and Res. 2372 (XXII), 12 June 1968. There were also visiting missions sent to Namibia, including that of the Secretary-General of the UN, all in attempts to implement the Un resolutions. 2 International Status of South West Africa, Advisory Opinion, ICJ Reports 1950, p. 136. 3 GA Res. 449 (V), 13 December 1950. 4 GA Res. 749 A (VIII), 28 November 1953. 5 See, eg, GA Res. 449 A (V), 13 December 1950; 1143 (XII), 25 October 1957; 1568 (XV), 8 December 1960; 2145 (XXI), 27 October 1966. This list is only exemplary and not exhaustive; for almost all the resolutions on the 'Question of Namibia' have a clause on control mechanism.

N mibia question by these committees.1 Therefore, by and large, the debates on the question of Namibia were enlightened and consequently the resolutions were, if necessary, documented.2 See, Report of the Ad Hoc Com. on SWA UN Doc. A/1901/Adds. 1 to 3, (1951); Report ibid. UN Doc. A/2261, (1952); Report ibid. UN Doc. A/2475 & Adds 1-2 (1953); Report of the Com. on SWA U N Doc. A/2666/ Cor. 1, A/2666/Add. 1 (1954); Report ibid. UN Doc. A/2913 (1955); Report ibid. UN Doc. A/3151 (1956); Report ibid. UN Doc A/3625 A study of the legal action to ensure the fulfilment of the obligations assumed by the Mandatory Power under the Mandate for SWA UN Doc. A/3626 (1957); Report of the Good Offices Com. on SWA UN Doc. A/3900 (1958); Report of the Com. on SWA UN Doc. A/3906 (1958); Report of the Com. on SWA UN Doc. A/3906 (1958); Report ibid. UN Doc. A/4191 (1959); Report of the Good Offices Com. on SWA UN Doc. A/4224 (1959); Report of the Com. on SWA UN Doc. A/4464 (1960); Ibid. A/4705 (1961); Ibid. A/4926 (1962); Report of the Special Com. on SWA, UN Doc. A/5212 (1963); Report of the SecretaryGeneral on Special educational and training programmues for SWA, UN Doc. A/5526 (1963); Report of the Com. of 24 on the implications of the activities of the mining industry and other international companies having interests in SWA; UN Doc. A/5840 (1965); Report of the UN Council for Namibia, UN.Doc. A/7088 (1968); Ibid. A/7338 (1968); Ibid., A/7624/rev. 1 (1970); Ibid. A/8424 (1-971); Report of the Secretary-General - comprehensive programmue of assistance to Namibians - UN Doc. A/8473 (1971); Report of the UN Council for Namibia, UN Doc. A/8724 (1972); Ibid. A/9024 (1974); Ibid., A/9624/ Add. 1 (1974); Ibid., A/10024 (1976); Ibid., A/31/24 (1976). 2 See, eg, GA Res. 935 (X) 3 December 1955; Res. 1357 (XIV), 17 November 1959.

The implementation, control and/or follow-up mechanism help to bring out the legally enforceable rules in the resolutions. The bulk1 of the General Assembly resolutions on Namibia, due to the fact that this is basically a question of decolonisation which under the Charter system centred initially on international supervision, had clear enforceable goals. It has been observed that "the mere articulation of principles, unbalanced by provisions effecting imperative compliance and enforcement procedures, ultimately reduces the impact of the principles".2 Thus the exposition of normative rules should be accompanied by elaboration of the organisational mechanism prerequisite for their realization. The Namibian question at the United Nations is, indeed, an apt illustration of this fact. These then are the essential features which are necessary for the verification of the set of rules which may forge rules of the United Nations law of decolonisation. At the same time these features delimit the set of rules that may emerge from the activities of the United Nations from mere political declarations and, thus, concretize the legal content of such rules. In conclusion there is one important point that should be emphasized. It is obvious from our analysis that although the United Nations law of decolonisation may, from many points, be analogised with international customary law, we will not attempt to locate the legal obligation outside the practice itself. Thus we will not attempt to analyse the mental attitude, the psychological conviction, of international organi1 Except those which dealt with specific points or with acknowledgement of petitions. 2 Leo Gross, "The United Nations, 25th Session", 12 Harvard International Law Journal (1971) pp. 436-536 at p. 518. sations for persistently adopting a particular course of action on a particular issue. Even the International Court of Justice itself, in questions of disputed international customary rules, pays only lip service to,2 and does not bother itself with the opnlio Juris. In this regard the Court stated that "in a more general way, considerations of convenience or simple political expediency seem to have led the territorial state to recognize asylum without that decision dictated by any feeling of legal obligation".3 For logical conceptualization it is necessary to situate practice into legal contours so as to differentiate it from other practice, for example, from morality. Nevertheless, from the point of view of international organisations the conventional competenceimplementation requirements and a legitimate target are sufficient criteria for the evolving rules to acquire normative characteristics. This theoretical formulation can be verified by the international organisations' attempts to decolonise Namibia. Namibia did not only fall in the broad field of administration of dependent territories, but was herself specifically categorized by the Covenant of the League of Nations and the Mandate agreement as a target for the new principle of international law, namely, international supervision. Therefore, the United Nations had to implement this legal position. In the process, where legal rules were unclear or non-existent, the practice of the General Assembly clarified the rules or filled in 1 It could be that the accepted stability and anticipated predictability of the legal order, objectively verifiable by, among others, the factors described above, may nurture the psychological conviction of the Member States to persistently follow a particular pattern. 2 Virally, "The Sources of International Law", in Sirensen (ed) op. cit. p. 134. 3 Colombian-Peruvian Asylum Case, Judgmqnt of 20 November 1950; ICJ Reports 1950, p. 266 at p. 286. the gaps. The cumulative effects of the following factors have caused a set of rules to evolve into a United Nations law of decolonisatlon: consistent repetition, fairly clearly stated content, general overwhelming and constant support and a clear implementation mechanism. To a great extent the activities of the United Nations found their legitimacy and legality in the legal rules evolved thus in its attempts to decolonise Namibia. And it appears that the solution to the question of Namibia would have to be within the legal framework thus generated for it to be accepted by the international community as legally valid. 3 THE PRINCIPLE OF SELF-DETERMINATION Self-determination,1 then probably more as a doctrine than a 2 principle, has its historical roots in the struggle for democracy in Europe.3 The doctrine of self-determination at this early stage developed two distinct, though complementary, strata, one political and the other religious.4 In the struggle against personal despotic rulers the doctrine of national self-determination provided the theoretical 1 See generally, A. Rigo-Sureda, The Evolution of the Right SelfDetermination. Leiden: Sijyhoff, 1973; Umozurike Oji Umozurike, Self-Determination in International Law. Hamden, Connecticut: Archon Books, 1972; Harold S. Johnson, Self-Determination within the Connunity of Nations. Leiden: Sijthoff, 1967. 2 See, Oscar Schachter, "The Relation of Law, Politics and Action in the United Nations" in The Strategy of World Order, Vol. III: The United Nations (eds) Richard A. Falk and Saul A. Mendlovitz. New York: World Law Fund, 1966, pp. 94-122 at pp. 107-122, for the discussion of the difference between doctrine and principle. 3 Ian Brownlie, "An Essay in the History of the Principle of SelfDetermination" in Grotian Society Papers 1968 (ed) Charles H. Alexandrowicz. The Hague: Nijhoff 1970, p. 90. 4 See, Hermann Raschhofer, "The Right of Self-Determination from the Western Viewpoint", Internationales Recht und Diplomatie (1962) pp. 25-36. basis, which by the French Revolution culminated into the notion of popular sovereignty. The Reformation, on the other hand, established the "individual freedom of religious self-determination".2 By the Treaty of Paris of 30 March 1856, which ended the Crimean 3 War, the principle of self-determination was well established in the political thinking of Europe to be recognized as applicable to any alter4 ations of the political map. During the First World War the principle of self-determination received more prominence in the sphere of international politics. Three of the prominent statesmen of that time made it the catchword of their international relations.5 Consequently, as has been observed,6 the 1 See Generally Jean Jacques Roussea, Du Contrat Social (ou Principes du droit politique). London: Longmans, Green & Co., 1918. 2 Hermann Raschhofer, loc. cit. p. 25. Thus the individual characteristics, which were subsequently superceded by the collective characteristics, of the principle of self-determination have their bases in the religious conflicts of the Reformation era. 3 See supra p. 163, note 2. 4 See Arthur Nussbaum, A Concise History of the Law of Nations. New York: The Macmillan Company, 1947, p. 186. In the unification and reorganisation of the European States, eg French, German and Italian, the principle of self-determination played a significant role. See, Sarah Wambaugh, A Monograph on Plebiscites. Carnegie Endowmnent for International Peace. New York: Oxford University Press, 1920. 5 V.I. Lenin, The Right of Nations to Self-Determination. International Publishers, New York, 1951; Boris Meisner, "The Soviet Attitude toward the Right of Peoples to Self-Determination", Internationales Recht und Diplomatie (1962) pp. 47-55. President Wilson's Fourteen Points, C. Lowes Dickson, Documents and Statements Relating to Peace Proposals and War Aims (Dec. 1916-1918). London, 1919, p. 116. Prime Minister Lloyd George's speech to the British Trade Union Congress of 5 January 1918, ibid. pp. 113-114. 6 See supra Chapter I. principle of self-determination played an important role in the prosecution of the war as well as in the formulation of the peace treaties. As a result at the end of the war, new boundaries were fixed in accordance with the wishes of the people; national minorities were protected; and the annexation of conquered territories (the colonies), the disposing of territories and population like chattels from one power to another,1 was done away with and instead the principle of international supervision of the mandates system was sanctioned to operate until such time that the inhabitants are able to stand on their own. The principle of self-determination was not specifically included in the Covenant of the League of Nations, except impliedly in Article 22. This omission of specific mention of the principle of self-determination in the Covenant hindered its development during the League's era into a positive legal principle of international law; particularly, because the principle of domestic jurisdiction was clearly embodied in the Covenant of the League of Nations.2 This point was emphasized by the International Commission of Jurists in its opinion requested by the Council of the League on the Aaland Islands' dispute, an authoritative legal consideration of the principle of self-determination, in the following manner: "Although the principle of self-determination of peoples plays an important part in modern political thought, especially since the Great War, it must be pointed out that there is no mention of it in the Covenant of the League of Nations. The recognition of this principle in a certain number of international treaties cannot be 1 E. Lauterpacht, "Some concepts of Human Rights", II HarvardLaw Journal (1965) p. 271. 2 Article 18. considered as sufficient to put it upon the same footing as positive rule of the Law of Nations". Thus, with the specific inclusion of the principle of the right of peoples 2 to self-determination in the Charter of the United Nations, the characteristics of a positive rule of international law was conferred upon it.3 At the San Francisco Conference it was emphasized that "the principle of equal rights of peoples and that of self-determination are two complementary parts of one standard of conduct";4 and that the principle of self- determination "as a provision of the Charter, should be considered in function of other provisions".5 The latter emphasis is quite significant in the concretization of the principles of international law concerning decolonisation. Therefore, the observation of Professor Scelle is very pertinent and legally sound. He stated: 1 League of Nations., Aaland Islands Documents. Official Journal, 1920. Report of the International Comnmission of Jurists entrusted by the Council of the League of Nations with the task of giving an Advisory Opinion upon the Legal aspects of the Aaland Islands$ Question. Council Documents 69 (11/6561/468), p. 5. 2 Articles 1 and 55. 3 During the Second World War the principle of self-determination featured prominently, see, the Atlantic Charter of 1941, 35 AJIL Supp. (1941) p. 191; see also the American position as subsequently explained in the Hearings before the Committee on Foreign Relations: United States Senate, 79th Congress, on the Charter of the UN. (9, 10, 12 and 13 July 1945). Washington: US Government Printing Office, 1945, p. 116. 4 UNCIO, Vol. 6, Doc. 885, p. 387. Report of the Rapporteur of Committee I to Commission I, p. 10. This Report was approved by the Conmittee, see ibid. Doc. 926, p. 421. 5 Ibid. Doc. 723, p. 696.

"Il en resulte selon nous que le Drott des peuples, ou lautodisposition est une norme de Droit positif au meme titre que Vinterdiction du recours a la violence, celle de Vintervention ou Ia reconnaissance des droits de l'homme. ... Nous considerons que dans tous ces cas il slagit de normes juridigues positives, d'abord parce qu'elles sont inscrites dans la Charter qui constitue le monument essentiel et constitutionnel, sous forme de convention multilaterale".1 The opposite view,2 that the principle of self-determination is a mere declaration of goodwill, a political manifesto, is caused by the inexactitude in the legal characterisatics of the principle rather than the nonexistence of legal obligation in the provisions of the Charter of the United Nations embodying the principle of self-determination. The functional inexactitude is due to imprecise contents, lack of clear implementation mechanism, and unclear target areas, among other factors. What these features demonstrate is the tenacity of the opposing views at the drafting stage.3 On the contrary, the legal obligation of the principle of self- determination as inserted in the Charter is derived from the consensual obligation of a multilateral convention. The principle of self-determination was not as such specifically mentioned in the provisions relating to dependent territories due to 4 deference to the views of the colonial powers, but took the guise of 1 Georges Seelle, Precis de droit des gens. Principes et systematique. Paris: Srey (1932, 1934), 2 vols. p. 385. 2 Norman Bentwich and Andrew Martin, A Commentary on the Charter of the United Nations. London: Routledge and Kegan Paul Limited, 1951, p. 7. 3 They reflect the "common ends on which our minds met", UNCIO, vol. 6, Doc. 885, p. 387, Report of the Rapporteur of Committee I to Commission I at p. 2. 4 Public Record Office, London, U 4526/191/70. Telegram: UK delegation to Foreign Office, 9 June 1945. This was mainly due to Russia's insistence, ibid., see also, UNCIO, Verbatim Minutes,-Running Nos. 28-29, 14 Hay 1945. consideration for "freely expressed wishes of the people concerned".1 The principle of self-determination as embodied in the Charter -bf the United Nations, as could be expected,2 was crystallized and concretized mainly through the activities of the United Nations relating to dependent territories. The first goal of the United Nations was to make the provisions relating to dependent territories, particularly, those concerning nonself-governing territories, functional. As noted immediately above, Chapter XI of the Charter created legal obligation for certain Member States. What was unclear were the what, the which and the how. For this reason the scope and the content of the assumed legal obligation had to be precisely determined and delimited, target areas determined, and, more significantly, the implementation mechanism devised. Thus, the first task of the General Assembly, and roughly running from 19461949, was to define the scope and the nature of the obligation imposed by Article 73 of the Charter. This finally developed into a determination of the type of information to be transmitted. The second phase, which was roughly from 1950-1955, was concerned with the General Assembly's attempts to determine its competence to examine the information; that is more a question of implementation mechanism. And the final phase, roughly from 1955-1960, concerned the efforts of the General Assembly to assert its competence to determine the status of 1 Public Record Office, London, U 4526/191/70; Article 76 b of the Charter of the United Nations. 2 At the San Francisco Conference the Russian delegate stated: "If the aim of this Organisation ... is the respect of the principle of equality of nations and of self-determination, then this aim which is the aim of the Organisation is a code we will have the more reason to put into the system of territorial trusteeship, because this aim will find more broad realization as regards to these dependent peoples". UNCIO, Verbatim Minutes, Running No. 29, 14 May 1945. non-selfgoverning territories.I The principle of self-determlnation as embodied in Article I, paragraph 2 and Article 55 of the Charter of the United Nations assisted the interpretation of the legal obligation of Chapter XI of the Charter, and thus amplified the scope of the content of the legal obligation devolving upon the Member States administering non-self-governing territories.2 And this was in line with the intentions of the founders of the Organisation. At the San Francisco Conference it was understood that the principle of self-determination, "as a provision of the Charter, should be considered in function of other provisions".3 It should be emphasized that the reverse effect, that is the use of the provisions of the Charter relating to dependent territories to assist in the clarification and amplification of the principle of self-determination as embodied in the Charter was equally true; though perhaps not so central. For initially the principle of self- determination was the better developed one than the legal principles relating to decolonisation of the non-selfgoverning territories. Nevertheless, the interplay between the two types of legal obligation is significant. It should be noted in parenthesis, however, that the efforts of the United Nations to clarify and amplify the principle of self-determination also took other equally significant 1 On the division into these three phases, which at any rate overlap, see, Basil A. Ince, Decolonization and Conflict in the United Nations (Guyana's Struggle for Independence). Cambridge, Mass.: Schenkman Publishing Company, 1974. 2 GA Res. 446 (V), Information on Human Rights in Non-Self-Governing Territories of 12 December 1950; see also, GAOR, 7th Sess. 3rd Com. 443rd Mtg. et seq. (1952). 3 UNCIO, Vol. 6, Doc. 723, p. 696 at p. 704. paths; namely, Covenants of Human Rights,I and, the definition and elaboration of the basic principles of the Charter.2 The fusion of the United Nations activities on dependent territories and on the clarification of the principle of self- determination made the principle of selfdetermination the central core of the United Nations attempts at decolonisation. Thus, the activities of the United Nations concerning dependent territories were, by and large, the means by which the principle of self-determination acquired its post Second World War hue. It should be emphasized, however, that this was just an amplification and not an alteration of the content of the principle of self-determination. Article 73 of the Charter of the United Nations, in parts, states: "Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of selfgovernment recognize the principle that the interests of the inhabitants of these territories are paramount ... and, to this end: a) to ensure ... political, economic, social and educational advancement, b) to develop self-government, ... and to assist them in the progressive development of their free political institutions, ... c) to transmit regularly to the Secretary-General ... statistical and other information ...". The clearly stated obligations, though hedged by qualifications, devolving upon such Members was to assist the political8 economic, social and educational development of the inhabitants of the non-self-governing territories, to develop self-goverment, and to some extent to inform the 1 Universal Declaration of Human Rights, 10 December 1948, (UN Doc. A/811). International Covenants on Human Rights, of 16 December 1966. See also, GA Res. 545 (VI), Inclusion in the International Covenant or Covenants on Human Rights an article relating to the right of peoeles to Self-Determination of 5 February 1952. 2 See the debates on the Declaration of Friendly Relations and Cooperation, UN Doc. A/AC.125/SR 114, Summary Record of the 114th Mtg. (1 May 1970).

Secretary-General of the United Nations about their administration. These obligations should not be considered in isolation from the principle of international accountability developed by the League of Nations and subsequently incorporated in the Trusteeship System. It was seen as a restricted version of international supervision, reflecting only the degree of sovereignty in the non- self-governing territories as opposed to the territories from which sovereignty has been extinguished by conquest. This was, of course, a factor which could only be relevant in the assessment of obligation, but it seems less a factor in the founding of the obligation. Even then only to provide the rational for the sovereignty of the colonial powers over the non-self-governing territories. In due course it even became exceedingly difficult to defend in international law the sovereignty of the colonial powers in the colonies. The provisions of the Charter of the United Nations on non-selfgoverning territories were the best compromise the opposing sides could agree to at the San Francisco Conference. To that extent for the sake of accommodating contradictory views they were vague and imprecise. They did not only sanction the sovereignty of the administering powers; but at the same time provided for some measure of international supervision. But the two principles were in the final analysis mutually exclusive. In the provisions based on compromise, the weakening of the bargaining point of one side could easily lead equally to the erosion of the provisions based on such a point. This appears to be the position with regard to the provisions of the Charter relating to the non-selfgoverning territories. The main bargaining point of the colonial States 1 As a result of this perception the parity of the Trusteeship Council, of equal numbers of administering States and non-administering States, was reproduced in the Committee on Information. at San Francisco was their joining the new organisation. Therefore, once the Organisation was established and the war had been won,-the bargaining point of the colonial States waned in relevance and importance. Henceforth, frontal attacks on colonialism were mounted, mostly by restrictive interpretation of the qualifications on the provisions relating to non-self-governing territories meant to safeguard the colonial powers' position. The attack was carried on mainly through the principle of self-determination. Thus the definition and clarification of the scope and content of the principle of self-determination assumed a significant role in the field of decolonisation. The colonial powers opposed the principle of the right of peoples to self- determination on a number of points. For example, that the word "peoples" was not clearly legally defined; that the principle itself has not yet been defined; that a plebiscite was not necessarily a means of ascertaining the popular wish, that is, the implementation mechanism' was unclear; and, that the United Nations need not necessarily be involved1 in testing the wishes of the peoples.2 It was argued, for instance, that "the principle of self-determination is a valuable one, but in the view of my delegation has nothing to do with attainment of self-government or independence by the peoples of territories. The principle is one which comes into existence only when the territories concerned have reached such a state of development where they can decide for themselves when they can properly, realistically, and with a full 1 Yet at the very initial consideration of the question of Namibia, for example, the United Kingdom and the United States in their diplomatic communications preferred the wishes of the inhabitants to be tested by the United Nations; See supra p. 127, notes 2 and 3, and the accompanying text. 2 GAOR, 7th Sess. 3rd Com. (1952) p. 150. They even attempted to limit the application and content of the principle of self-determination to only the internal features, that is only as a principle of good government and not of decolonisstion; and 'thus outside the purview of international law. realization of their position avail themselves of the right of self1h determination". 1 Of course, the anti-colonial States rejected such a narrow interpretation of the principle of self-determination. These objections were countered by reliance on the writing of highly qualified publicists, for instance. The interpretation of Professor Scelle that "the word 'peoples' seems to us to indicate that the legal rights thus provided for may be exercised collectively by any group of nationals of a State without further prerequisite as regards such group than that of the conmnon wish of the individuals of which it is composed"2 was urged as legally sound. The interpretation of the word "peoples" based on the narrow conception of the principle of selfdetermination as relating only to internal policy (good government); and hence the conclusion that since the provisions of the Charter concern the 3 relations among States, therefore "peoples" must mean State, is inaccurate. In the first place the principle of self-determination does not relate only to the internal arrangement, but it also has a very strong international (or external) characteristics; that is, as the vehicle for 1 GAOR, 7th Sess. Plenary, 403rd Mtg. (1952) p. 372, per Sir Percy Spender (Australia), subsequently, a Judge at the International Court of Justice. 2 Ibid., 3rd Com. 443rd Mtg. (1952) p. 150, quoted by the Egyptian delegate from Georges Scelle, Precis de droit des gens (Principes et systematique). Paris: Sirey, 1932, Part II, Sec. VIII, p. 259. 3 Hans Kelsen, op. cit. pp. 50-53.

I I4- acquiring acceptable1 international status. Even during the era of the League of Nations the international characteristics of the principle of self-determination were recognized. Hence the International Commission of Jurists posed the question they had to consider in relation to the Aaland Islands' dispute, as follows: "Can the inhabitants of the Aaland Islands, as at present situated and taking as a basis the principle that peoples must have the right of self-determination, request to be united to Sweden?"2 At the San Francisco Conference the word "state" was used "to indicate a definite political entity"; the word "nation" was used "in a broad and non-political sense", it "is broad and general enough to include colonies, mandates, protectorates, and quasi-states as well as states"; and the word "peoples" was used in the sense of "all mankind" or "all human being", it'efers to groups of human beings who may, or may not, comprise states or nations".3 Belgium urged for the separation of equality of States from the right of peoples to self-determination because " 'peoples' could mean 'states' but in the expression 'the peoples right of self-determination' the word 'peoples' means the national groups which do not identify themselves with the population of 1 It seems, as the principle of self-determination has developed in relation to decolonisation of Africa, particularly of Southern Africa, it is not enough that the indigenous inhabitants have expressed their right of self-determination to be independent; the emerging government must also be acceptable to the rest of the African States, and the determining factor appears to be total rejection of white- settlerism as it is represented by the regime in South Africa. It seems this may be the evolving criterion of selfdetermination as it relates to the questions of Namibia and Southern Rhodesia (). See generally, Documents and Speeches on the AU Strategy for Liberating Southern Africa in 1975. Compiled by Dr. N. Shamuyarira, Dept. of Political Science, University of Dar es Salaam, (mimeographed), 1975. 2 Aaland Islands Documents, op. cit. p. 5. 3 UNCIO, Vol. 18, Doc. WD 381, CO/156 p. 654 at pp. 657-658. a state". 1 But the Coordination Committee held that "there appears to be no difficulty in this juxtaposition since 'nations' is used in the sense of all political entities, states and non-states, whereas 'peoples' refers to groups of human beings who may, or may not, comprise states or nations".2 From the above analysis it is abundantly clear that the principle of self- determination as embodied in the Charter was understood to have not only internal characteristics, but also external characteristics. In fact, as the principle has developed in relation to decolonisation the internal elements of good government have almost been superceded by the external ones of free determination of the international status. Consequently the interpretation which equates "peoples" only with state is untenable. On the contrary, the General Assembly has used the words "peoples" and "nation" rather interchangeably; thus the word "peoples" appears at times to refer not only to "all human beings", but mostly to iden3 tifiable political groups such as the colonised peoples. It seems that in the definition of the word "peoples" as it relates to the right of peoples to self- determination the General Assembly had favoured the prag1 Ibid., Vol. 6, Doc. 374, p. 300. 2 Ibid., Vol. 18, p. 658. 3 See, eg, GA Res. 545 (VI), 637 (VII), 814 (IX), 1188 (XII), 2131 (xx). matic approach as opposed to a pure all-embracing definition.1 Thus the principle of self-determination was emphasized more in colonial questions of the salt-water type.2 "It was perfectly clear that in a discussion of the right of self- determination, the peoples concerned were the inhabitants of colonies administered by foreign peoples, absolutely different in race, culture, and geographic habitant".3 By this type of interpretation questions of dependent territories were taken out of the context of domestic jurisdiction and on to the plane of international law. Indeed, it was argued that "no legal argument could give validity to the claim that the destiny of alien populations of forcibly occupied overseas territories was a matter within 'domestic jurisdiction' of the metropolitan powers".4 1 See, eg, Belgium argument in the Commission on Human Rights in 1952 to the effect that "the first thing to be settled was the meaning of the word 'peoples' ... Therefore peoples could not be excluded on the mere ground that while not belonging to the ruling race, they had been incorporated in a State. Many human communities which today are States would never had known independence if they had not been able legitimately to free themselves from the bonds limiting them to a State within which they had constituted a minority. Common sense indicated, however, that not every group regardless of its nature could be taken into consideration in determining the extent to which the principle of the right of peoples to self-determination was applicable". UN Doc. E/CN.4/SR 252. 2 See, eg, GA Res: 648 (VII), 814 (IX), 1514 (XV), 2160 (XXI), 2588 (XXIV), 2649 (XXV), 2734 (XXV), 2787 (XXVI), 2878 (XXVI), 2908 (XXVII), 2955 (XXVII), 2979 (XXVII), 3070 (XXVIII), 3163 (XXVIII), 3246 (XXIX). 3 UN Doc. A/C.3/SR.451 para. II, per delegate from Indonesia. 4 GAOR, 7th Sess. 3rd Com. 453rd Mtg. (1952) p. 213, per Mrs. Afnan (Iraq).

The principle of self-determination as a whole was thus interpreted as the legal right conferred by positive international law on a legal entity to determine its political, cultural and economic arrangements either as an independent state or to join any other independent state. 1 It was observed that Article I, paragraph 2, and Article 55 of the Charter embodying the principle of self-determination on the one hand, and Articles 73 and 76 of the Charter on dependent peoples and territories on the other, were complementary. The former provided the content of the principle of self- determination and the latter the implementation mechanism for the principle. On issues relating to non-self-governing territories the objections were that "Article 73 e did not ask for information on the degree of self-government, but did ask for information on good government"; that no supervision was envisaged by the United Nations under the provisions of Article 73 of the Charter;3 that Chapter XI was a mere solemn declaration;4 that the information was to be transmitted for the purpose of documentation, and not to be the subject of examination, criticism 5 or recommendations on the part of the United Nations. This type of objection was for a time to limit the scope and content of the principle of self- determination, because it could not apply to non-self-governing 1 See, ibid., 443rd Htg. p. 150. 2 Ibid., 2nd Sess. 4th Com. (1947), p. 38, per Mr. Ryckmans (Belgium). 3 Ibid., p. 73. 4 Ibid. 5 Ibid., see also, ibid., Plenary, 108th Mtg. p. 734; and see generally for the history of Article 73 of the Charter, UN Doc. A/C.4/104, 'Note on the Origin of Article 73 of the Charter. Working Paper prepared by the Secretariat.' territories. To a greater extent the objections of the colonial powers, apart from the fundamental one of total lack of legal obligatibn of Chapter XI, which could be countered, at any rate, as being contrary to provisions of a multilateral treaty, were based on the lack of a fully-fledged international supervision mechanism. But the point could not be totally ignored that to some extent the requirement for transmission of information to the Secretary-General was, though rudimentary, a measure of international accountability. The difference from the international supervision under the Trusteeship System was thus of the degree and not of the kind of supervision. The interpretation and amplification of this rudimentary, minute and imprecise degree of supervision became, very early in the life of the United Nations, the battle ground between the colonial and antiocolonial powers. The anti-colonial States at once mounted a frontal attack upon colonialism. They first (by asserting that "in these days when freedom, democracy and the right of self-determination are accepted as fundamental rights, the existence of Non-Self-Governing Territories was an anachronism which had to be ended as soon as possible")2 undermined the moral basis for colonialism. With a doubtful moral justification and coupled by waning bargaining power of the colonial States, it became easier to interpret the provisions of the Charter concerning dependent territories and peoples progressively. Thus by processes of broad interpretation, restatement of general principles of law and even by sheer functional necessity3 a verifiable set of rules was developed by the General Assembly 1 See, eg, Usha Sud, "Coanittee on Information from Non-Self-Governing Territories: Its role in the promotion of Self-Determination of colonial peoples". 7 International Studies (New Delhi) (1965/66), pp. 311-336. 2 GAOR, 2nd Sess. Plenary, 107th Mtg. p. 702, per delegate from India. 3 See generally, Reparation for Injurits suffered in the service of the United Nations, Advisory Opinion: ICJ Reports 1949, p. 174; International Status of SWA, Advisory Opinion: Ibid. 1950, p. 128. 178 which enabled it to play a significant role in the field of decolonisation. The first step, from which the Organisation was to build upon, was the instruction to the Secretary-General to enquire from the Member States whether they administer territories to which Article 73 of the Charter 1 applied. This was not specifically provided for in the Charter, but was functionally necessary. And from this modest beginning the General Assembly developed its competence on all issues relating to the non-selfgoverning territories. Secondly, the General Assembly arrogated to itself the right to assess, discuss and evaluate the information submitted by the States administering non- self-governing territories; despite the 2 objection that the information was only for documentation. And then set 3 up an ad hoc committee on information; thus a clear development of supervisory powers of the General Assembly. Thirdly, the General Assembly arrogated to itself further the competence to determine whether a territory is non-self- governing or not; and adopted a list of factors to help in its determination.4 Thus, the determination whether a territory has ceased to be a non-self-governing territory was no longer left to the administering State. Fourthly, the General Assembly decided, despite objection from the administering States that this would amount to extension of their obligation without their consent, that for better assessment of the political advancement5 of the inhabitants and the 1 GA Res. 9 (1), N~n-Self-Governing Peoples of 9 February 1946. The Secretary-General was requested to include a statement on information in his report. 2 See generally, Usha Sud, loc. cit.; Yassin EI-Ayouty, op. cit. 3 For a detailed study of the Committee on Information, see ibid. 4 GA Res. 742 (VIII) of 27 November 1953. 5 Article 73 a of the Charter. degree of development of self-government political information could be 2 submitted voluntarily. Fifthly, the distinction between non-selfgoverning and trust territories was obliterated by General Assembly Resolution 1514 (XV) of 14 December 1960; and, from thereon, petitioners from non-self-governing territories started to appear before organs of the United Nations even if the administering State was against it.3 By these processes the principles of international law concerning dependent territories developed from being concerned mainly with good government to being the vehicle of decolonisation. The Declaration on the Granting of Independence to Colonial Countries and Peoples of Resolution 1514 (XV) of 14 December 1960 was thus a culmination of the development of the principle of self-determination as it relates to decolonisation.4 As has been observed the principle of self-determination as embodied in the Charter was imprecise and lacked concreteness in content and clarity in implementation mechanism as well as identifiable subject of the right. Hence, it was incorrectly considered as a mere political rhetoric.5 However, being included in a multilateral treaty its legal obligation could not be absolutely denied. The most significant fact is that being a provision of the Charter it was amenable to development with the institution itself. The anti-colonial 1 Article 73 b of the Charter. 2 GA Res. 1468 (XIV) 12 December 1959. 3 GAOR, 21st Sess. 4th Com. 1635th Mtg. Portugal objected and argued that only oral hearings by petitioners from trust territories are permitted; see also, ibid., 24th Sess. 4th Com. 1822nd Mtg. (on hearings from Rhodesia). 4 UN Doc A/AC.125/SR 114, Summary Record of the 114th Mtg. of the Special Committee on Principle of International Law concerning Friendly Relations and Co-operation among States (1970), p. 56. 5 "a moral duty", UN Doc. A/AC.l00/2/Add.I, p. 14, per delegate from the United Kingdom. forces urged that "the Organisation cannot be content with static concept of the world, as formulated fifteen years ago; it must be in continuous contact with living reality and must reflect reality. The Declaration is simply the adaptation to present world conditions, the principle of self-determination of peoples laid down by the Charter in 1945'.*1 The Declaration of 1960 drew on the developments of the principle of self- determination as it evolved in its attempts to interpret the provisions of the Charter relating to non-self-governing territories and to that extent concretized the content and scope of the principle of self-determination, defined the targets, and provided verifiable limitations.2 It should be noted that this was only as it applied to colonial situations, which could not be claimed to be exclusive. The legal significance of the Declaration of 1960 and thus the content and scope of the right of self-determination as it relates to colonial situation was affirmed by the International Court of Justice in the Namibia Advisory Opinion in 1971, the Court stated: "Furthermore, the subsequent development of international law in regard to non-self-governing territories ... made the principle of self-determination applicable to all of them ... A further important stage in this development was the Declaration on the Granting of Independence to Colonial Countries and Peoples (GA resolution 1514 (XV) of 14 December 1960) which embraces all peoples and territories which 'have not yet attained independence' This is but a manifestation of the general develop-3 ment which has led to the birth of so many new States". 1 GAOR, 16th Sess. Plenary, 1061st Mtg. para. 87, per delegate from Iran. 2 GA Res. 1514 (XV) operative paragraphs 2, 5, 6; and GA Res. 1541 (XV), Annex principle (iv). 3 The Namibia Advisory Opinion, J Ros 1971, p. 31, para. 52.

The International Court subsequently stated clearly that the "General Assembly resolution 1514 (XV) provided the basis for the process of decolonisation which has resulted since 1960 in the creation of o1 2 many States". It seems the lack of support by the United Kingdom, the United States,3 and, to some extent, France4 for the Declaration of 1960 was due to the failure of this declaration to recognize the "important contributions which the administering powers had made in the colonial ,5 areas". On the substantial principles on dependent territories which the Declaration contained there were on the whole no doctrinal or legal objections. On the contrary, the United Kingdom admitted that there was no difference between the provisions of Chapter XI on the one side and those of Chapters XII and XIII on the other.6 1 Western Advisory Opinion, ICJ Reports 1975, p. 12 at p. 32. 2 GAOR, 15th Sess. Plenary, 957th Mtg. p. 1283. 3 Ibid., see also, David A. Kay, "The Politics of Decolonisation: The New Nations and the United Nations Political Process", 21 International Organisation (1967) p. 786 at pp. 789-790, where it is alleged that the USA was going to vote for the Declaration and had even indicated that to some delegations, but changed her position when MacMillan, the British Prime Minister, requested Eisenhower not to vote for the Declaration, for that would have put Britain in an embarrassing position. Great Britain succeeded in convincing the USA. 4 GAOR, 15th Sess. Plenary, 945th Mtg. The other States of the nine abstentions were Portugal, Spain, Union of South Africa, Australia, Belgium and Dominican Republic. 5 Ibid., 947th Mtg. p. 1283, per delegate from the USA. 6 Ibid., p. 1275.

The principle of self-determination as embodied in the Charter developed in conjunction with and by the provisions of the Charter relating to dependent territories. As a result the principles of selfdetermination thus acquired strong features of decolon1sation; though by no means absolutely dominant. This is one of the principles of international law with perceivable imprints of the newly independent States.1 Also by General Assembly Resolution 1541 (XV) of 15 December 1960, which 2 became a fitting supplement to the Declaration of 1960, the targets 3 were further unambiguously defined; the goals were unmistakenly mapped out;4 the obligations of the Member States administering nonself-governing territories were further properly defined and delimited.5 And the principle of self- determination was thence considered fully operational and, therefore, a distinct implementation and follow-up mechanism was established.6 1 For the priority the newly independent states accorded to the problems of colonialism, see, eg, Michael Dei-Anang, The Administration of Ghana's Foreign Relations 1957-1965: A Personal Memoir. London: Athlone, 1975. "In Ghana's foreign relations 'decolonisation through the United Nations' was one of the basic areas of policy". Ibid., p. 50; see also, Kay, loc. cit., p. 808. 2 This resolution was drafted long before the debates on the Declaration on Decolonisation started, see GA Res. 1467 (XIV) 12 December 1959; UN Doc. A/AC.1O0/l; A/AC.IOO/2/Add. 1 and 2. 3 GA Res. 1541 (XV), Annex, principles I and IV. 4 Ibid., principles VI - IX. 5 Ibid., principles II, IV, X. 6 GA Res. 1654 (XVI); see also, GAOR, 16th Sess. Plenary 1047th Mtg. et seq.

However, when considered in itself and in isolation of the subsequent development of the principle of self-determination, the Declaration of 1960,'because of lack of consensus, since a substantial part of the 1 colonial powers abstained, the degree of the legal obligation of this declaration was subjected to doubt. But, when viewed as a part of the overall development of the principle of self-determination as it relates, particularly, to dependent territories, and also taking into account the 2 clear implementation mechanism established, and its actual operation, it seems the rules of the right of peoples to self-determination have acquired such a high degree of predictability and institutional functional frequency that they can be considered to be a significant part of the rules of the United Nations law of decolonisation. The stricture that "it seems academic to argue that as Assembly resolutions are not binding, nothing has changed, and that self-determination remains a mere 'principle', and Article 2 (7) is effective defense against its implementation" 3 is, indeed, from the functional point of view of international organisations well founded.4 It seems that the subsequent development of the principle of self-determination as embodied in the Charter has largely resolved the issue of the legal obligation of the principle. It is from this perspective that Professor Abi-Saab was able to observe "that even if self-determination was not universally accepted as a legal principle in 1945, or even in 1960, the practice which has taken place in interstate 1 But see supra notes 2, 3, 4 , p. 182. 2 See the Reports of the Special Committee on the situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples: UN Docs. A/5328; A/5446; A/5800/ Rev. I; A/6300/Rev. 1; A/6700/Rev. I; A/7200/Rev. I; A/7623/Rev. 1; A/8023/Rev. I. 3 Rosalyn Higgins, OP. Cit., p. 101. 4 For further supporting views as well 4s contrary views see, 6g, Unozurike, op. cit., p. 177 et seq. relations since the adoption of the Charter, leading to the emergence of some sixty new States, as well as the consistent and cumulative practice of the organs of the United Nations, have led in 1970 to the universal recognition of the legal and binding nature of the principle of self-determination". 1 Indeed the deliberations of the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations substantiate this assessment. To start with the Special Committee decided to carry out its work on the basis of consensus,2 and consequently strove for a single authoritative text on each of the seven principles it had to consider, which "could legitimately be regarded as the most up-to-date expression of the scope and interpretation of the Charter of the United Nations, the basis of international law as it was understood and practised by the civilized nations of the world today".3 Thus, the text produced by the Special Committee was acceptable to all the countries represented on the Committee; and in the General Assembly it was adopted by acclamation.4 The legal obligation of the text was emphasized in the Special Committee. For 5 example, it was equated to the general principles of law; proclaimed 1 Georges Abi-Saab, "Wars of National Liberation and the Law of War", 3 Annals of International Studies (Geneva) (1972), pp. 93-117 at p. 99. 2 Robert Rosenstock (A member of the US delegation" to the Special Committee), "The Declaration of Principles of International Law Concerning Friendly Relations: A Survey", 65 (I) AJIL (1971 - II) pp. 713-726. 3 Mr. Molina Landaeta (Venezuela), UN Doc. A/AC.125/SR 114, p. 34. 4 GAOR, 25th Sess. Plenary, 1883rd Mtg. 5 Hungary, UN Doc. A/C.6/SR 1180.

186 to be Aus coaens. On the principle of equal rights and self-determination'of peoples the Special Committee was influenced2 by the Declaration on Granting Independence of 1960, although despite third world countries' insis3 tence, for the sake of consensus that Declaration was not specifically referred to.4 However, the contents of the Declaration on Granting Independence were incorporated; it was stated that "it (Res. 1514 (XV) ) was a politically motivated expression .of the General Assembly which had had persuasive force in the Cormmittee's drafting of the legal 1 Iraq, ibid., but compare Australia's claim that it was a mere recommendation, ibid. That is, the Special Committee spent over five years and studied all the relevant international documents (see A/C.6/L.537/Rev.I/Add I, 20 October 1965. Selected background documentation and bibliography prepared by the Secretariat) only at the end of the day to end up with nothing more than a mere recommendation. Most of the Members of the Special Committee did not share such restrictive views; see generally, A/AC.125/SR 114. 2 UN Doc. A/AC.125/SR 114, pp. 32-33, 56. 3 See, eg, India, ibid., pp. 69-70. 4 However, the suggested elements the Principle should include were mostly a reflection of the colonial problems; these were, eg: colonialism and racial discrimination as violations of the Charter and international law; right to eliminate colonial domination and right of self-defence against it; prohibition of armed action or repressive measures against peoples under colonial rule; the duty to refrain from any action against the national unity and territorial integrity of another country; the right of peoples to receive assistance in their struggle against colonialism; obligation of States to respect and facilitate the attainment of selfdetermination; the question whether dependent territories may be considered integral parts of the metropolitan country; see, UN Doc. A/6230 (1966), p. 218.

187 elements of the principle"I of self-determination. It was also generally understood in the Special Committee that the principle of selfdetermination as elaborated and amplified in the Declaration on Friendly Relations will be interpreted within the framework of the Declaration on Granting Independence.2 The main contribution of the Declaration on Friendly Relations to the principle of self-determination was not only to establish the legal obligation of the principle beyond doubt, but also to restore its universal character.3 The principle of self-determination has fairly crystallized and concretized into verifiable and enforceable rules, whose legality appears to be generally accepted. The subject of the right, the peoples, is now clearly defined and delimited. The subject of the right to selfdetermination "was clearly limited by the need to arrive at viable situations in which independence nominally acquired could become an effective reality".4 Implementation mechanism has been determined and in fact tested. The testing of the wishes of the inhabitants under the United Nations supervision is now the internationally recognized mode.5 On the other hand, the legality of the peoples, particularly colonial to resist, if necessary by force, the suppression of their right to selfdetermination; and the legitimacy of receiving external support was clearly accepted.6 In fact, the fact that arbitrary denial of a section 1 UN Doc. A/AC.125/SR 114, p. 56, per Mr. Lee (Canada). 2 Ibid. 3 This point was emphasized by France ibid., p. 48; USA ibid. p. 82. 4 Ibid., p. 48, per Mr. Virally (France). 5 See, Thomas M. Franck, "The Stealing of the Sahara", 70 AJIL (1976) pp. 695-721, at p. 699. 6 This point was emphasized by a number of countries, eg, France, UN Doc. A/AC.125/SR 114, p. 49; , ibid., p. 59; Syria, ibid. p. 64. of the population of its right to self-determination - the hall-mark of colonial regimes, could give rise to legitimate demand for the right to self-determination was recognized even during the era of the League of Nations. The International Commission of Jurists set up by the Council of the League to advise on the question of Aaland Islands stated: "The Commission, in affirming these principles, does not give an opinion concerning the question as to whether a manifest and continued abuse of sovereign power, to the detriment of a section of the population of a State, would if such circumstances arose give to an international dispute, arising therefrom, such a character that its object should be considered as one which is not confined to the domestic jurisdiction".1 It was from such legal perception of the rule of the right of people to self- determination that the General Assembly sanctioned armed struggle of the colonial peoples fighting for their independence.2 Indeed, it could be argued that the denial of the right of self-determination inherent in a colonial situation, paritcularly if it is a forcible denial, could lead to a disturbance of international order and/or a threat to international peace and security. 1 Aaland Islands Documents, op. cit., p. 7. 2 See, GA Res. 2517 (XXIV), Question of Namibia, of 1 December 1969; Res. 2871 (XXVI), of 20 December 1971; see also, Abi-Saab, "Wars of National Liberation and the Laws of War", loc. cit.

CHAPTER V THE NAMIBIAN QUESTION AT THE UNITED NATIONS 1 THE PRINCIPLE OF INTERNATIONAL ACCOUNTABILITY OF THE MANDATES SYSTEM LEGALLY SANCTIONED South Africa's main concern was to exorcise the principle of international accountability from the status of Namibia. As has been observed1 international accountability was the most important dividing factor between the ordinary colonies and the mandated territories. Thus, by removing the principle of international accountability from her administration of Namibia, South Africa hoped to retain the territory, all :but in name, as an ordinary colony. But the other Member States of the United Nations opposed such creeping colonisation. The point was unambiguously put by the delegate from Mexico: "Neither the framers of the Charter of the United Nations nor the framers of the Covenant of the League of Nations ever intended that the mandated territories should revert back to the status of colonies. South West Africa will be nothing but a colony if we agree to the position taken by the Government of the Union of South Africa."2 1 See supra Chapters I and III. 2 GAOR, 2nd Sess., Plenary, (16 September - 29 November 1947), Vol. I, p. 594. This position was also supported by India, ibid., p. 597. 189

The South African Government was prepared to place Namibia under the supervision of the Security Council as a strategic territary rather than under the Trusteeship Council, because of the intense dislike for the latter and not necessarily the applicability of the principles involved in the former.2 Further, South Africa saw in the "strategic area" concept a more secured control than in the trusteeship system. South Africa's categorization of Namibia as a strategic area was only based on parochial strategic considerations; and thus it was totally rejected.3 However, South Africa persisted in this parochially conceived concept of strategic areas, and hence argued that "from the strategic point of view, it could not be removed from Union, and the United Nations Charter itself provide for the defence of such territories".4 South Africa in her attempts to oust international supervision from Namibia attempted to narrow down the division between mandated territories and ordinary colonies by arguing that Article 80, paragraph 5 2, of the Charter also applied to the ordinary colonies. Of course, this was contrary to the travaux preparatoires. But what is of legal significance is that at this time an eradication of the difference between ordinary colonies and mandated territories would have facilitated the colonisation of the latter. With the development of the principles of decolonisation the exact opposite became the effect. 1 See supra Chapter IV, sec. I. 2 Ibid. 3 Public Record Office, London, FO 371/57132/762. 4 GAOR, 3rd Sess., Plenary, 164th Mtg., p. 589, per Louw (South Africa's Foreign Minister). 5 Ibid., 2nd Sess., Plenary, 105th Mtg., Vol. I, pp. 639-631. 6 See UNCIO, Vol. 10, pp. 515 et seq. place Namibia under the trusteeship system.1 Thus, "in order to meet certain moral and legal scruples of some delegation&' the General Assembly at its Fourth Session in 1949 decided to seek clarification from the International Court of Justice of certain legal points.3 An ingenious attempt was made to frame the questions put to the International Court in a manner that would have made it possible for the Court to rule that Namibia fell under Chapter XI of the Charter. The first draft resolution4 had two paragraphs worded as follows: "(b) Is the Union of South Africa under the obligation to negotiate and conclude a trusteeship agreement for placing the Territory of South West Africa under international system? (c) In the event of a negative reply to the question under (b): Is South West Africa a territory to which the provisions of Chapter XI of the Charter apply?",5 As it can be observed those two paragraphs had the possibility of transferring Namibia from the mandates system to the status of an ordinary colony. This danger was noticed, that "their acceptance would be tantamount to transforming a mandated territory into a non-self-governing territory and handing over to the Union of South Africa".6 Thus these 1 See GAOR, 1st - 3rd Sess., Plenary Mtgs. 2 Ibid., 4th Sess., Plenary, 269th Mtg., p. 533, per Mendoza (Guatemala). 3 GA Res. 338 (IV) of 6 December 1949. "Question of South West Africa: Request for an Adivsory Opinion of the International Court of Justice". 4 UN Doc. A/1180, p. 15. 5 Ibid. 6 GAOR, 4th Sess., 4th Com., 140th Mtg., p. 278, per Mr. Jobim (Brazil). It seems early in the debates at the UN on the question of Namibia, even by those who insisted that Namibia should be placed under the trusteeship system, the decolonisation element was not realized. India, for example, voted against the deletion of these two paragraphs, see ibid., p. 281-282. versial and evolving situation, like decolonisation at that time, as exemplified by the Namibian question, is eased if the legal principles are uncontrovertible, at least in theoretical conception. Thus, the Court was asked to give legal opinion on: "What is the international status of the Territory of South West Africa and what are the international obligations of the Union of South Africa arising therefrom, in particular: (a) Does the Union of South Africa continue to have international obligations under the Mandate for South West Africa and, if so, what are those obligations?-. (b) Are the provisions of Chapter XII of the Charter applicable and, if so, in what manner, to the Territory of South West Africa? (c) Has the Union of South Africa the competence to modify the international status of the Territory of South West Africa or, in the event of a negative reply, where does competence rest to determine and modify the international status of the Territory?"l To some extent, the questions posed to the Court depict a woolly knowledge of the historical background to the mandates system; they also show the degree of development of the principles of international law concerning decolonisation at that time. It may be noted, however, that the majority of the Member States saw no legal impediments in placing Namibia under the Trusteeship System.2 The Court found that the obligations assumed by South Africa under the Mandate were of two types. One was concerned with the mandatory administration of the Territory, which formed a sacred trust of civilization; the second related to the machinery for implementation of the "sacred trust of civilization", which was the supervision of the 1 GA Res. 338 (IV), 6 December 1949. 2 Hence the resolutions adopted by the General Assembly up to this point, but there was an opposition which raised the legality of the UN Action, see supra p. 192, note 2. two paragraphs were rejected.1 The significant point here is that while the wall between nonself-governing territories and trust territories was impenetrable, the anti-colonial bloc shied away from equating the mandated territory of South West Africa with non-self- governing territories; whereas the colonial bloc attempted to transfer Namibia into the category of nonself-governing territory. At this juncture there were no well defined principles of international law on decolonisation which could have applied to the non-self-governing territories. On the other hand, in case of trust territories the conventional principles could unmistakably lead to decolonisation. However, when the wall was finally smashed in the 1960s and when the principles of international law on decolonisation were better developed the anti- colonial states had no objection for Namibia to be placed in the same cateogry as non-self-governing territories. For the elimination of the dichotomy in the theoretical conception in the United Nations between non-self-governing territories and the trust territories eliminated also not only the procedural differences but equally the differences in the ultimate objectives. The General Assembly Resolution 338 (iv) "Question of South West Africa: Request for Advisory Opinion of the Interna:tional Court of Justice", of 6 December 1949, was the second2 land mark resolution in the attempts of the United Nations to decolonise Namibia. This resolution shows that the task of the United Nations, particularly in a control Ibid., pp. 281-282, by 24 votes to 17, with 5 abstentions. France also opposed the inclusion of these two paragraphs, but for entirely a different reason - not wanting the Court to determine what constituted a non- self-governing territory, see, ibid., 4th Sess., 4th Com. p. 279. 2 The first, of course, was GA Res. 65 (I) "Future Status of South West Africa" of 14 December 1946, which prevented legal annexation of Namibia and thus set the course for the decolonisation of Namibia into motion.

L7J administration by an international organisation.1 In consequence the Court held that "the obligation incumbent upon a mandatory State to accept international supervision and to submit reports is an important part of the Mandate System" 2 The Court explained cogently the historical background for the over-riding obligation of the mandatory power to submit its administration to an international supervision, as follows: "When the authors of the Covenant created this system, they considered that the effective performance of the sacred trust of civilization by the mandatory powers required that the administration of mandated territories should be subject to international supervision."3 The same necessity for international supervision led to the establishment of the International Trusteeship System; for the necessity for supervision continued to exist despite the disappearance of the supervisory organ under the mandate system. We have shown that a mandated territory without international supervision was a contradiction in terms;4 and entirely ambivalent to the historical background to the formation of the mandates as well as a negation of the common intention of the Parties to the Covenent of the League. Article 22 of the Covenant of the League of Nations and the Mandate agreements were the first international instruments to create concrete rights for dependent peoples in international law. The right to be administered for their well-being and development and not for the well-being and development of the administering power; and this right the international community undertook to uphold and protect. This was 1 International Status of South West Africa, Advisory Opinion: ICJ Reports 1950, (hereafter refer to as: Status Opinion ICJ Reports 1950), p. 128, at p. 133. 2 Ibid., p. 135. 3 Ibid., p. 136. 4 Supra., Chapter IV, Sec. I. a very significant contribution to the development of principles of international law concerning decolonisation.I The International Court of Justice in its Advisory Opinion of 11 July.1950, on the whole, upheld the contentions of the anti-colonial States. Namely: "That South West Africa is a territory under the international Mandate assumed by the Union of South Africa on December 17th 1920;"2 this was a unanimous decision; and by a substantial majority of twelve votes to two, the Court further held: "that the Union of South Africa continues to have the international obligations stated in Article 22 of the Covenant of the League of Nations and in the Mandate for South West Africa as well as the obligation to transmit petitions from the inhabitants of that Territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and petitions are to be submitted, and the reference to the Permanent Court of International Justice to be replaced by a reference to the International Court of Justice, in accordance with Article 37 of the Statute of the Court; and further by a unanimous decision it held: "That the provisions of Chapter XII of the Charter are applicable to the Territory of South West Africa in the sense that they provide a means by which the Territory may be brought under the Trusteeship System".4 However, on one point the Court refuted wholly the anti-colonial argument and held, by a slender majority of eight to six, that Chapter XII of the Charter did not impose any legal obligation on South Africa5 to 1 Chief Justice Lathan in Ifrost V. Stevenson (1937) (Australia) 58 Commonwealth Law Report, p. 528, expressed the same view but, of course, at that time the decolonisation elements of the mandates system were not clearly noticeable. However, he stated: "The grant of mandates introduced a new principle into international law". Ibid., at p. 550. 2 Status Opinion, ICJ Reports 1950, p. 143. 3 Ibid. 4 Ibid., p. 144. 5 See our submission on the element of voluntariness of Chapter XII of the Charter, supra. Chapter III,'Sec. 3 (1). place the mandated Territory under the trusteeship system. This was the second part of the answer of the Court to the question (b), namely, "are the provisions of Chapter XII of the Charter applicable and, if so, in what manner, to the Territory of South West Africa?2 This question was a last minute attempt by the Colonial States, inserted in the plenary session.3 It will be recalled that a similar question but wider,4 which referred also to Chapter XI and which, in fact, aimed at subjecting Namibia only to the provisions of the latter,5 was rejected in the Fourth Committee.6 It will be observed that, nevertheless, the Court considered the first part of this question which was specifically deleted. Because from the documents submitted, the records of the Fourth Committee of the General Assembly, for example, as well 7 as from the written and oral observations of the governments, it emerged that the Member States were not in agreement as to whether the Charter imposes an obligation on the mandatory powers to enter into a trusteeship agreement or not. Thus, in the light of these facts the Court interpreted the question posed rather widely and, in fact, took into account even the deleted question. For this reason the second part of the reply of the Court could be viewed as obiter dictum. Perhaps what one may consider as inspired obiter. For the Court considered a point which the majority of the members felt should not be posed; but 1 Status Opinion, ICJ Reports 1950, p. 144. 2 GA Res. 338 (IV), 6 December 1949. 3 GAOR, 4th Sess., Plenary, 269th Mtg. (1949), p. 529, para. 53. 4 See supra. p. 192, note 5, and the accompanying text. 5 See, eg, the argument of Brazil for the deletion of that question, GAOR, 4th Sess. 4th Com. p. 275. 6 Ibid., p. 278. 7 See, Pleadings, International Statts Opinion, 1950. of course referred to in the documentation on the point at issue. And again the Member States felt no restraint not to raise the same point at the Court. It seems that in advisory opinion it is rather difficult to restrict the Court to the view of the majority. However, that is not of significant importance; and does not in our view detract significantly from the legal reasoning of the Court on this issue. What is of vital importance is the difference in the foundations in law for the non-obligatory procedure for placing mandated territories and ordinary colonies under the trusteeship system. The permissive language used in Articles 75, 77 and 79 of the Charter, on which the Court relied, covers three different categories - mandated territories, territories detached from enemy states, and ordinary colonies. The element of voluntariness as it applied to the two main types of territories 1 The International Court of Justice had stated on one occasion: "The rejection of the French amendment does not constitute a directive to the Court to exclude from its consideration the question whether certain expenditures were 'decided on in conformity with the Charter', if the Court finds such consideration appropriate ... the Court must have full liberty to consider all relevant data available to it in forming an opinion on a question posed to it for an advisory opinion. Nbr can the Court agree that the rejection of the French amendment has any bearing upon the question whether the General Assembly sought to preclude the Court from interpreting Article 17 in the light of the other articles of the Charter, that is, in the whole context of the treaty". Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962; ICJ Reports 1962, p. 151, at p. 157. Cf. the limitations suggested by Judges Spender and Fitzmaurice, ibid. pp. 182 and 217-218 respectively. The same thing happened in the Namibian Advisory Opinion, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South WestAAfrica) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16. See also Separate Opinion of Judge cie Castro, ibid. pp. 180 et seq. had different foundations.I Thus, the mandated territories cannot be placed in the same category and scope as ordinary colonies by pure textual interpretations of the provisions of the Charter, which for that matter have different foundations in law. Though not from the 2 same legal reasoning Judge Cross, like de Visscher in 1950,. though dissenting, held in the 1971 Advisory Opinion that South Africa was under an obligation to conclude an agreement.3 The distinction between no obligation to enter into an agreement and an obligation to negotiate toward a conclusion of an agreement is fine; but it can be illuminated if the issue is considered in the context of decolonisation. For no obligation to enter into an agreement in itself is a negation of the non-colonisation principles of the Covenant of the League of Nations and the Charter of the United Nations. That the provisions of these international instruments concerning administration of dependent territories and peoples were intended "to forge a brutum fulmen"'4 is, indeed, legally untenable. Otherwise it is an indulgence in cynicism which is, at any rate, of no legal significance. And finally the Court held unanimously: "that the Union of South Africa acting alone has not the competence to modify the international status of the Territory of South West Africa, and that the competence to determine and modify the international status of the Territory rests with the Union of South .frica acting with the consent of the United Nations". 1 See supra Chapter III, Sec. 3. 2 Status Opinion, ICJ Reports 1950, pp. 186 et seq. 3 Legal Consequences for States of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, Dissenting Opinion of Judge Gros, pp. 343-345. 4 Status Opinion, ICJ Reports 1950, p. 237. 5 Ibid.

The second part of this answer was historically incorrect and legally untenable. The mandates system, to the territories to which it was applied, replaced the individual unaccountable colonisation and colonial administration with international determination and international accountability. The declaration of Namibia as a mandated territory and assigning her to South Africa were both international actions; and the supervision was entrusted to an international body. In the specific context of the mandates system, the mandatory Power would have had to satisfy the Council of the League that the mandated territory had reached a stage of development to enable it "to stand by itself under the strenuous conditions of the modern world", before mandate status could be ended. This was a question of fact which the mandatory Power was better placed to determine. The competence of the mandatory Power in modification of the international status of a mandated territory was relevant only in this respect. Thus the request1 for the modification of the status of a mandated territory will come from the mandatory Power and to be approved by the Council of the League of Nations.2 The role of mandatory Power was thus more of procedural nature whereas that of the League of Nations was more fundamental involving the substantive part of the modification of the regime. On the question of sovereignty the position of the Commission which was subsequently accepted by the Council of the League, was stated as follows: "I think all my colleagues will agree with me that there is no 1 And, of course, the request could not be withheld unreasonably and unjustifiably, more so if the intention is to defeatt the purpose of the mandates system. 2 See, eg, "General conditions which must be fulfilled before the Mandate regime can be brought to an end in respect of a country .placed under that regime". PMC, 20th Sess. Min. pp. 228-229, (9-29 June 1931). C. 422 H. 176, 1931, VI. reason to modify, in any way, this opinion, which states implicitly that sovereignty, in the traditional sense of the word does not reside in the mandatory Power".1 This was the position of the mandatories as well as the publicists. For example, the Representative of France, M. Briand, stated: "The legal basis on which the mandate rested constituted an entirely new chapter of international law, and was in no way derived from national sovereignty".2 Therefore, to the extent that the Court's ruling attempted to shift the competence to modify the international status of a mandated territory from the collective will of the international community to the individual will of the mandatory, there is no historical foundation for it and is contrary to the intention of the parties as well as the state practice during the operation of the mandates system.3 Regrettably, this second part of the answer of the Court reverses the positions, without any factual or legal justification, of the mandatory Power with that of the Council of the League of Nations. The ruling of the Court on this question was apparently strayed by the failure of the Court to see any difference in the voluntary element for the placing of the mandated territories and the ordinary colonies under the trusteeship system. As a result the Court perceived, despite the practice and legal position to the contrary as noted immediately above, the same degree of sovereignty in mandated territories and in ordinary colonies. 1 UN Library (Geneva), Archives of the League of Nations, 1928-1932, GA/12455/443, "Observations formulated by the Permanent Mandates Commission at its Fifteenth Session held at Geneva from July 1st to 19th, 1929, on the administration of South West Africa in 1928". 2 Ibid., 1927-1930, S. 1611 No. 4, "Memo: Sovereignty over Mandated Territory", at p. 3. 3 See, J.H.W. Verzijl, The Jurisprudence of the World Court, 2 vols. Leiden: Sijthoff, 1965, Vol. II, pp. 59 et seq.

&W. South Africa was disappointed by the Advisory Opinion of the Court on the International Status of South West Africa. And at once she embarked upon a course to disparage that opinion. She argued that new facts - the history of the last resolution of the Assembly of the League - which were not brought to the attention of the Court and if considered the Court "would have accepted the minority view that there had been no transfer of the functions of the League to the United Nations". 2 In fact, South Africa wanted the General Assembly to act as an appeal court. South Africa specifically asked the Ad Hoc Committee on South West Africa, established for the purpose of finding ways and means for the implementation of the 1950 Advisory Opinion, to review that Advisory Opinion in the light of the so-called new facts.3 Of course, the United Nations is not legally empowered to act as an appeal court to the International Court of Justice. The main argument of South Africa was that any form of international supervision under the United Nations would place her in a more onerous position. It should be stressed that this was not due to any unprecedented development in the substance of the principle of international accountability. Admittedly, the institutional change from the League of Nations to the United Nations had brought significant procedural changes. Also the shift in the theoretical conception of international organisation as well as its anticipated purposes which resulted, particularly, in the shift from unanimity rule to majority rule underpinned important change in the implementation mechanism of the principle of international accountability. But it should be emphasized that the 1 See supra. 'Chapter I1, Sec. 3 (11). 2 GAOR, 5th Sess., 4th Com., p. 363, para. 49, per DSnges (South Africa). 3 Ibid., 6th Sess., 4th Com., p. 125, para. 2. a b_'3 substance of the principle of international accountability as well as the rationale for such a principle did not change. The change was developed gradually by the United Nations in the mid-1960s. With the establishment of the United Nations there was an institutional change which within the first few years pointed toward strict supervision of the administrations of trust territories. And subsequently the emphasis shifted from sacred trust of civilization to the right to selfdetermination of the indigenous inhabitants. This was a shift in the degree and not the type of supervision. The shift in the overall theoretical conception of colonial administration should be contrasted with the development of the apartheid policy of the Government of South Africa, particularly after 1948 with the coming into power of the Nationalist Party. The two trends were absolutely mutually exclusive; and contradiction widens with passing of time. The principle of international accountability as the center-piece of the trusteeship system of the United Nations pointed toward ultimate self-determination and independence, if necessary, of the indigenous inhabitants; whereas the apartheid policy of the Government of South Africa aimed at the domination of the indigenous inhabitants by the European settler minority. The contradiction of the two policies was depicted vividly by the Prime Minister of South Africa, as follows: "They (the UN) passed one resolution - and imagine what it means - to the effect that it was wrong that-in South West Africa the non- European population, the Natives, the Hottentots and the Coloureds in the urban areas should live in their own areas, just outside the borders of the European residential area; that all those races were to be given freedom to live amongst the European just as they pleased. ... For that reason and also in view of our experience I say that the time has come for us in South

Africa, far from submitting anYual reports to UNO, to protect the Natives from UNO". Namibia became thus the test case for the struggle for mastery of one of these contradictory policies.2 2 IMITATION OF THE PERMANENT MANDATES COMMISSION ATTEMPTED The International Court of Justice in its Advisory Opinion of 11 July 1950, on the whole, upheld the contentions of the anti-colonial states. However, on one vital point the Court refuted wholly the anticolonial argument; and held, by a small majority that Chapter XII of the Charter does not impose any legal obligation on South Africa to 3 place the mandated Territory under the trusteeship system. In its reasons the Court stated, inter alia: "It follows from what is said above that South West Africa is still to be considered as a territory held under the Mandate of December 17th, 1920. The degree of supervision to be exercised by the General Assembly should not therefore exceed that which applied under the Mandate System, and should conform as far as possible to the procedure followed in this respect by the Council of the League of Nations. These observations are par-4 ticularly applicable to annual reports and petitions". 1 Union of South Africa. House of Assembly Debates, Vol. 85, col. 4487 (4 May 1954). 2 See generally for this contradiction, the letter dated 25 March 1954 from the Permanent Representative of the Union of South Africa to the United Nations, UN Doc. A/2666, Annex I, p. 6. 3 Status Opinion, ICJ Reports 1950, p. 128, at p. 144. 4 Ibid., p. 138.

This remark which the Court did not elaborate upon fully as it should have done, although not incorporated into its formal answers,. was substantially more than an obiter dictum. And in fact was treated as such in the General Assembly.2 Thus, although this Advisory Opinion safeguarded the international status of Namibia as well as the principle of international accountability; and probably prevented the South African Government from carrying out outright annexation, nevertheless, due to the uncertainty in the theoretical conception of the whole regime of dependent peoples and territories at the time, the only known experience, that of the Permanent Mandates Commission, was given general legal cognition. It should be emphasized that this was not considered as conventionally authoritative, which with the demise of the League of Nations was not. But as general principles of international law concerning the administration of a certain type of dependent territories. The failure to perceive that certain conventional principles of the Covenant of the League of Nations and the rules developed in conjunction therewith passed into principles of international law, restricted the scope and range of the implementation mechanism which the United Nations could devise. As a result the United Nations attempted to resurrect the institutions of the League of Nations. The General Assembly at its Fifth Session in 1950 by Resolution 449 (v) accepted the Court's Opinion on the International Status of South West Africa and urged South Africa to do the same. In the preambular paragraphs the General Assembly particularized the conclusion of the Court that: the Territory of South West Africa is a territory 1 Verzijl, op. cit., vol. 2, p. 219. 2 It was this quoted passage which led to further advisory opinions on the question of Namibia in 1955 qnd 1956.

This remark which the Court did not elaborate upon fully as it should have done, although not incorporated into its formal answers,-was substantially more than an obiter dictum. And in fact was treated as such in the General Assembly.2 Thus, although this Advisory Opinion safeguarded the international status of Namibia as well as the principle of international accountability; and probably prevented the South African Government from carrying out outright annexation, nevertheless, due to the uncertainty in the theoretical conception of the whole regime of dependent peoples and territories at the time, the only known experience, that of the Permanent Mandates Commission, was given general legal cognition. It should be emphasized that this was not considered as conventionally authoritative, which with the demise of the League of Nations was not. But as general principles of international law concerning the administration of a certain type of dependent territories. The failure to perceive that certain conventional principles of the Covenant of the League of Nations and the rules developed in conjunction therewith passed into principles of international law, restricted the scope and ranTge of the implementation mechanism which the United Nations could devise. As a result the United Nations attempted to resurrect the institutions of the League of Nations. The General Assembly at its Fifth Session in 1950 by Resolution 449 (v) accepted the Court's Opinion on the International Status of South West Africa and urged South Africa to do the same. In the preambular paragraphs the General Assembly particularized the conclusion of the Court that: the Territory of South West Africa is a territory 1 Verzijl, op. cit., vol. 2, p. 219. 2 It was this quoted passage which led to further advisory opinions on the question of Namibia in 1955 pnd 1956. under international mandate; the Union of South Africa continues to have the international obligations; the functions of 6upervision should be exercised by the United Nations; the Union of South Africa acting alone is not competent to modify the international status of the Territory of South West Africa, and that the competence to determine and modify the international status rests with the Union of South Africa acting with the consent of the United Nations. It also made some deductions without evoking the Court's opinion, viz: that the Union of South Africa should continue to administer the Territory of South West Africa in accordance with the mandate; that the Union of South Africa is under an obligation to accept the compulsory jurisdiction of the Court; and that it is incumbent upon South Africa to promote the material and moral well-being and social progress of the inhabitants. It further set up an Ad Hoc Committee on South West Africa, the first clearly devised implementation mechanism by the United Nations on the question of Namibia,1 to confer with South Africa about the procedural measures to be taken to implement the Advisory Opinion. The Ad Hoc Committee was also authorized to examine in accordance with the procedure of the mandates system the reports on the administration of the Territory as well as petitions.2 South Africa being determined to keep Namibia out of the United Nations and the United Nations out of Namibia; and in view of the narrow terms of reference of the Ad Hoc Committee on South West Africa - to confer with South Africa concerning the procedural measures necessary for implementation of the Court's opinion, made the efforts 1 See supra. Chapter IV, Sec. 2. 2 GA Res. 449 (V), 13 December 1950.

Mandate, including the sacred trust and international supervision, must be embodied in such agreement; and, finally, the Ad Hoc Committee conceded on the question of military provisions.1 With South Africa totally opposed to international supervision, she rejected the Ad Hoc Committee's basic proposals. Consequently, the Ad Hoc Connittee declined to accept the proposal of South Africa because "it did not allow for a fdll implementation of the advisory opinion which had been accepted by the General Assembly".2 At its Sixth Session the General Assembly expressed regret that the South African Government was unwilling to consider the applicability of international supervision in any agreement on the future status of Namibia; and solemnly appealed to the Government of South Africa to reconsider its position and to enter into negotiation with the Ad Hoc Co nittee to conclude an agreement which would provide for the full implementation of the advisory opinion.3 In the subsequent years no progress was made by the Ad Hoc Committee in its negotiation with the Government of South Africa.4 At the Eighth Session the General Assembly noted the deadlock and dissolved the Ad Hoc Committee, and instead established on a more permanent basis,5 until agreement was reached, the Committee on South West Africa.6 1 Ibid., para. 19. 2 Ibid., para. 33. 3 GA Res. 570 (VI), 19 January 1952. 4 Reports of the Ad Hoc Committee on South West Africa, UN Does. A/2261; A/2475 and Add. I. 5 GAOR, 8th Sess., 4th Comm., (1953), p. 303. 6 GA Res. 749 (VII), 28 November 1953.

The General Assembly set out a series of legal propositions which evoked the conclusions of the Court Advisory Opinion on the International Status of South West Africa as the basis of authority for establishing 1 the Committee. Of course, these propositions were not new - except on one or two conditions - they were previously stated in similar terms in the General Assembly Resolution 449 (V) in which the General Assembly accepted the Advisory Opinion of 1950 and established the Ad Hoc Committee. It appears the General Assembly chose to reiterate the conclusions of the 1950 Advisory Opinion rather than merely refer to Resolution 449 (V) 2 in order to strengthen its position, and that left the legality of the implementation mechanism in no doubt. South Africa refused to resume negotiations with the Committee on South West Africa because she claimed that the terms of reference of the Committee were "more inflexible than those of the Ad Hoc Committee".3 But how close the procedure of the Permanent Mandates Commission the 4 Committee on South West Africa might have attempted to follow, because of the obvious differences in the structure and substance it could not have relived the Permanent Mandates Commission. And, therefore, in the attempts to relive the Permanent Mandates Commission the Committee 1 Ibid. 2 Samuel A. Bleicher, "The Legal Significance of Re-citation of General Assembly Resolutions", 63 AJIL (1969), p. 444, at p. 467. 3 UN Doc. A/2666, (1954), p. 2. The terms of reference of the two committees appear very much similar. If anything, the terms of reference of the Committee on South West Africa were less restrictive. The Ad Hoc Committee was empowered to negotiate about the procedure and not the substance; whereas the Committee on South West Africa was not restricted to procedure. South Africa may have felt that very little could be achieved from this Committee which was entirely composed of third world countries, the only exception being Norway. 4 See, eg, Reports of the Committee on South West Africa, UN Docs. A/2666 Annex V; A/2913; A/3151; A/3626.

S LU inevitably provided South Africa and her supporters with further legal I ammunition. The impasse continued. South Africa persisted in her intransigence and refused either to place Namibia under the International Trusteeship System, or to negotiate with the Committee on South West Africa for. the full implementation of the Advisory Opinion of 1950, or to submit reports or even to transmit petitions. And the General Assembly continued to reiterate its pleas. The International Court in the Advisory Opinion of 1950 was basically concerned with the content and scope of the principle of international accountability, and less with implementation mechanism.2 However, in its judicial cautiousness it prescribed the principle of international accountability by indicating the degree of supervision to be exercised. For that reason the search for the proper implementation mechanism became the central issue at the United Nations. The subsequent advisory opinions were, thus, concerned with the "measure and means of supervision 3 1 Thus on two occasions the General Assembly had to refer the disputed legal differences to the ICJ in 1955: Voting Procedure on the Questions concerning South West Africa; and in 1956: Admissibility of Hearings of Petitioners by the Committee on South West Africa. It is worth noting that despite the fact that South Africa accused the Committee of not following the procedure of the Permanent Mandates Commission, GAOR, 9th Sess., 4th Comm., 399th Mtg., vol. 3, p. 16; she subsequently changed her position and stated that she would not be concerned "as to what voting procedure was adopted in that respect by the General Assembly or as to whether it had the endorsement of the Court's opinion". GAOR, 10th Sess., 4th Comm., 491st Mtg., vol. 2, p. 130, (31 October 1955). 2 But as observed in Chapter IV a clearly devised implementation mechanism helps to clarify and amplify the content of a legal principle. 3 South West Africa - Voting Procedure, Advisory Opinion of 7th June 1955; ICJ Reports 1955, p. 67.

&L& The General Assembly, in its attempts to create supervisory machinery which would conform as far as possible with that which was obtained under the League of Nations, had to seek further legal assistance. of the Court. In the interpretative Advisory Opinion of 1955 the Court by dividing the sentence in question into substantive and procedural issues,2 and by interpreting it more from the functional approach, overcame the insurmountable legal problem3 this sentence created. The Court interpreted the controversial sentence in the context of the legal system created by the Charter; it stated: "It is from the Charter that the General Assembly derives its competence to exercise its supervisory functions; and it is within the framework of the Charter that the General Assembly must find the rules governing the making of its decisions in connection with those functions. It would be legally impossible for the General Assembly, on the one hand, to rely on the Charter in receiving and examining reports and petitions concerning South West Africa, and, on the other hand, to reach decisions relating to these reports and petitions in accordance with a voting system entirely alien to that prescribed in the Charter".4 And the Court concluded that the first part of the sentence in question related "to the extent of the substantive supervision thus exercised, and not to the manner in which the collective will of the General Assembly is expressed"; for that was conclusively provided for in the Charter of the United Nations. Although the International Court did not squarely view the question from the angle of implementation mechanism; however, its reasoning amounted to that, more so in some of the separate opinions. The scope 1 See s upra p. 204, note 4 and accompanying text. 2 South West Africa - Voting Procedure, Advisory Opinion of 7th June 1955: ICJ Reports 1955, p. 67 at pp. 72-76. 3 Ibid., p. 75. 4 Ibid., p. 76. 5 Ibid., p. 72. and content of the principle of international supervision of the administration of mandated territories by the United Nations had b4en determined by the Advisory Opinion of 1950; and the sentence in question was intended to trim the loose edges of the principle thus enunciated by indicating the range of the implementation mechanism.I The Court also noted, as has been observed in the preceding chapter, that the competence should be constitutionally provided for, and also that it should be legitimate. We would add, so as to heighten the legal effect, all or most of the other factors discussed in the preceding chapter, for such decisions taken by the General Assembly to acquire normative characteristics. The lacuna in the theoretical conception which the United Nations law of decolonisation is meant to provide for, was perceived distinctly by Judge Lauterpacht in his Separate Opinion on the Voting Procedure.2 He perceptibly observed that "what has been questioned is the opinion that a recommendation is of not legal effect whatsoever".3 The conclusion of Judge Lauterpacht that "a resolution recommending to an Administering State a specific course of action creates some legal obligation which, however rudimentary, elastic and imperfect, is nevertheless a legal obligation and constitutes a measure of supervision when viewed from the angle of implementation mechanism is legally sound. Indeed, it should be noted that the overall legitimacy of such resolutions is 1 See, eg, the reasoning of Judge Basdevant to the effect that "the Union of South Africa, it was intended to say, is only bound to submit to this supervision in so far as such supervision is effected in accordance with a procedure which conforms as far as possible to that followed in this respect by the Council of the League of Nations". Ibid., p. 82. 2 Ibid., pp. 118 et seq. 3 Ibid., p. 118. 4 Ibid., pp. 118-119.

:23 derived from the constitutive instrument of the Organisation. The Court found the legitimacy for the General Assembly to undertake supervisory functions in Articles 10 and 80 of the Charter.1 The Mandate for South West Africa and Article 22 of the Covenant of the League of Nations created a legal regime with certain specific features, for example, the main one being the necessity for international supervision. However, for a number of reasons there was no formal transfer of the functions 2 of one organisation to the other. Although in the field of dependent territories and peoples conceptually and institutionally the continuation was intended. Thus, the legal force of resolutions concerning international supervision of administrations of mandated territories is derived not from certain specific provisions in the constitutive instrument (if that is the case there would not have been any problem), but stems from the purpose of the regime created. It could be viewed as the rationale for devising and using the implementation mechanism. Therefore, the duty to inform3 devolving upon the Administering Power (the Mandatory Power in this case) should be seen as a feature of implementation mechanism. The addressee of a certain resolution should explain that the course of action indicated by the General Assembly is not conducive to better implementation of the provisions of the Mandate for South West Africa as well as those of Article 22 of the Covenant of the League of Nations. It would be suggested that since this is a feature of supervision the addressee should indicate a suitable and acceptable alternative course of action. Failure by the addressee to i Status Opinion, ICJ Reports 1950, pp. 133 et seq. 2 See supra. Chapter III. 3 See, Separate Opinion of Judge Lauterpacht in South West Africa voting Procedure, Advisory Opinion of 7th June 1955; ICJ Reports 1955, p. 118. explain its non-compliance and also without suitable alternative being suggested may lead to charges of bad faith. In any case it would be contrary to the general rules developed by the United Nations concerning administration of dependent territories and peoples. Thus, the duty to explain non-compliance with the resolutions of the United Nations specifically addressed to a particular Member State, emphasized by Judge Lauterpacht as devolving upon such a Member State,2 falls within implementation mechanism. The legal significance of such an explanation lies in the elucidation it lends to the efficacity of the implementation mechanism which, of course, in turn amplified the legal rules involved. But it seems the explanation or lack of it in itself would not create legal obligation. Despite the fact that any legal doubts concerning the degree and range of the implementation mechanism were dispelled by the Advisory Opinions of the Court on the Voting Procedure and Admissibility of Hearing of Petitioners,3 nonetheless, the supervisory function of the General Assembly remained, due to the uncooperative attitude of the Government of South Africasunimplemented. And, thus, international law in the face of a determined delinquent remained inoperative. Hence the 1 See Judge Lauterpacht, ibid., p. 119. However, the criterion of good government set up by Lauterpacht is no longer valid; now the criterion is the fulfilment of the principle of self-determination. The general purpose of the international principles concerning dependent territories and peoples is no longer good colonial administration but attainment of the principle of self-determination. 2 Ibid., p. 119, cf. Judge Kalestad, Sep. Op. ibid., p. 88. 3 Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion of Ist June 1956: ICJ Reports 1956, p. 23.

Committee on South West Africa for eight yearsI shuffled along in the misfitting shoes of the Permanent Mandates Commission without any progress in the direction of decolonisation. In order to extricate the United Nations from continuous "wriggling in the mud of a stalemate and facing an impasse"2 in 1957 the General Assembly resorted to the traditional conciliatory machinery and established a Good Offices Committee on South West Africa to discuss with the Government of South Africa "a basis for an agreement which would continue to accord to the territory of South West Africa an international status".3 As anticipated4 the Good Offices Committee under the Chairmanship of Sir Charles Arden-Clarke5 held discussions with the South African Government in 1958 in South Africa. The Government of South Africa was 1 It was replaced by the Special Committee on South West Africa in 1961, GA Res. 1702 (XVI), 19 December 1961. 2 Mr. Kohman (Thailand), Chairman of the Fourth Committee and at the same time Chairman of the Committee on South West Africa, defending his position for introducing the proposal for the establishment of the Good Offices Committee in the 4th Committee from the chair. GAOR, 12th Sess., Plenary, 709th Mtg. p. 366, para. 15 (25 October 1957). 3 GA Res. 1143 (XII), 25 October 1957. 4 Before the proposal was submitted the views of the South African Government had been sounded, consequently, the United Kingdom urged the Members not to amend the draft resolution, and two of the three members were stipulated in the resolution. GAOR, 12th Sess., 4th Comm., 666th Mtg. p. 64; See also Ahmed (India) charging that it appeared that certain prior commitments had been given to the Government of South Africa, ibid., 669th Mtg. p. 83. South Africa also confirmed this point in a letter dated 14th May 1958 from their High Commissioner in London to the Chairman of the Good Offices Committee, UN Doc. A/3900 Annex II. 5 Sir Charles Arden-Clarke was the last Colonial Governor of Ghana, and Ghana having just attained her independence the previous year, his chairmanship of the Good Offices Committee was considered by the indigenous inhabitants of Namibia to augur well. prepared to consider only two proposals: first, South Africa reiterated her proposal of 1951 made to the Ad Hoc Committee - to negotiate an agreement with the three remaining members of the Principal Allied and Associated Powers; secondly, South Africa was prepared to consider partitioning of the country.1 As the first proposal had already been rejected by the General Assembly,2 the Good Offices Committee recommended the second as a possible basis for an agreement, and expressed the hope that the "General Assembly will therefore encourage the Government of the Union of South Africa to carry out an investigation of the practicability of partition".3 The General Assembly turned'down4 the recommendation of the Good Offices Committee which envisaged partitioning of the country because it "was morally indefensible and legally inconceivable" 5 and furthermore it "would strike a mortal blow at the rights of the people of South West Africa".6 It is worth recalling that as stated above the territorial integrity of Namibia became a specific item of the content of the General Assembly resolutions. Territorial integrity has since become, where necessary, an important feature of the principle of selfdetermination as it related to decolonisation. I UN Doc. A/3900. 2 GA Res. 749 A (VIII), 28 November 1953. 3 UN Doc. A/3900 p. 22; it is worth noting that the first Bantustan (Homeland) established by South Africa in Namibia in the late 1960s was in the northern part of the country, the same area the South African Government was prepared to place under the UN supervision on condition she annexed the rest of the country. 4 GA Res. 1243 (XIII), 30 October 1958. 5 Mr. Menon (India) GAORi.l3th Sess., 4th Com. 757th Mtg. p. 60, para. 5. 6 Mr. Osman (UAR), ibid., 75bth Mtg. p. 57, para. 14.

Z17 The most ambitious proposal yet on the imitation of the Permanent Mandates Commission was made by the Good Offices Committee. To resolve the dispute the Good Offices Committee's first proposal was an application approach, by which it wanted not only "as far as possible" the procedure of the Permanent Mandates Commission to be followed, but to resurrect the entire structure and organs of the League of Nations that dealt with the mandates. Namely, the Council of the League to be replaced by Council of South West Africa and the Permanent Mandates Commission by South West Africa Mandate Commission. And these were to be resurrected together with their principles and procedures; and for that matter only the former members of the League of Nations at its demise would take part.I Of course, South Africa did not favour this proposal because of the United Nations being the other party to the agreement; and more so the retention of the principle of international accountability.2 Despite the fact that many delegations, particularly those from the third world, were unhappy with the recommendation of the Good Offices Committee - to partition the country3 _ in fact, it was doubted whether the Chairman was sufficiently well disposed towards the indigenous inhabitants.4 However, the Good Offices Committee was not dissolved, instead it was invited to renew discussions with the South African Government in order to find a basis for an agreement which would continue to accord to Namibia as a whole an international status.5 But since the 1 UN Doc. A/3900, pp. 7-9, paras. 16-21. 2 Ibid., p. 16, para. 38. 3 See GAOR, 13th Sess., 4th Com., 750th, 752nd, 756th-763rd Mtgs. 4 Ibid., 752nd Mtg., p. 43, paras. 19 and 25. 5 GA Res. 1243 (XIII), 30 October 1958. prepared to consider only two proposals: first, South Africa reiterated her proposal of 1951 made to the Ad Hoc Committee - to negotiate an agreement with the three remaining members of the Principal Allied and Associated Powers; secondly, South Africa was prepared to consider partitioning of the country. As the first proposal had already been rejected by the General Assembly,2 the Good Offices Conittee recommended the second as a possible basis for an agreement, and expressed the hope that the "General Assembly will therefore encourage the Government of the Union of South Africa to carry out an investigation of the practicability of partition".3 The General Assembly turned-down4 the recommendation of the Good Offices Committee which envisaged partitioning of the country because it "was morally indefensible and legally inconceivable"5 and furthermore it "would strike a mortal blow at the rights of the people of South West Africa".6 It is worth recalling that as stated above the territorial integrity of Namibia became a specific item of the contents of the General Assembly resolutions. Territorial integrity has since become, where necessary, an important feature of the principle of selfdetermination as it related to decolonisation. I UN Doc. A/3900. 2 GA Res. 749 A (VIII), 28 November 1953. 3 UN Doc. A/3900 p. 22; it is worth noting that the first Bantustan (Homeland) established by South Africa in Namibia in the late 1960s was in the northern part of the country, the same area the South African Government was prepared to place under the UN supervision on condition she annexed the rest of the country. 4 GA Res. 1243 (XIII), 30 October 1958. 5 Mr. Menon (India) GAORp 13th Sess., 4th Com. 757th Mtg. p. 60, para. 5. 6 Mr. Osman (UAR), ibid., 756th Mtg. p. 57, para. 14.

ZLL 3 IMPLEMENTATION OF THE PRINCIPLES OF INTERNATIONAL LAW ON DECOLONISATION ATTEMPTED In the wake of the General Assembly Declaration on Decolonisation1 the approach to the question of Namibia also underwent substantive changes. Not only the language became less solicitous and courteous, for instance referring to the apartheid system as "tyrannical";2 but also the demands were heightened. The General Assembly abandoned the road of international supervision of the mandates and the trusteeship systems and focussed on national independence and sovereignty.3 For the first time in the history of Namibia before the United Nations, the General Assembly recognized the right to independence of the people of Namibia. Amid accusation that the "action contemplated ... far exceeds the powers exercisable by the United Nations under the Mandate",4 to facilitate that goal the Committee on South West Africa was requested to go to Namibia immediately to prepare the country for internal self-government.5 1 GA Res. 1514 (XV), 14 December 1960. 2 GA Res. 1596 (XV), 7 April 1961. 3 Ibid., it appears that most of the newly independent states, which achieved their independence by heightening their demands in the metropolitan parliaments and also appealing to public opinion in the metropolitans, adopted the same tactics at the UN; and for the first time the attention of the Security Council was drawn to the question of Namibia. 4 Mr. Smithers (UK) GAOR, 15th Sess., Plenary, 963rd Mtg., Vol. 58, p. 17, para. 27. 5 GA Res. 1568 (XV), 18 December 1960.

In pursuance of the new tasks the Committee on South West Africa 1 was dissolved, and a special Committee on South West Africa established.2 The Special Committee was charged with clear tasks of decolonisation, namely, to achieve with consultation with South Africa: the evacuation of all military forces of South Africa from the Territory; the release of all political prisoners; the repeal of all discriminatory laws; and the preparation for a general election.3 The Government of South Africa, which by then had a new ground for its non- cooperation, of sub ludice,4 refused to'allow the Special Committee to enter Namibia. As the 1960 Declaration of Decolonisation concretized and crystallized the principle of self-determination5 and by that dismantled the wall between non-self-governing territories and trust territories, the question of Namibia ceased to be treated as a special issue and was thus brought under the purview of the Special Committee on the Situation with regard to the Independence to Colonial Countries and Peoples (Committee of Twenty Four).6 The main attack on South Africa at the United Nations moved from her failure to place Namibia under the Trusteeship System to failure to implement the General Assembly Declaration of 1960. Thus, it became a censure for failure to abide 7 by international law principles of decolonisation. And the United 1 GA Res. 1704 (XVI), 19 December 1961. 2 GA Res. 1702 (XVI), 19 December 1961. 3 Ibid., without indicated goodwill and cooperation, for all signs pointed to the contrary, it is difficult to imagine how the Special Committee was expected to carry out these objectives. Perhaps the essence, as a decolonisation exercise, was in the act of presentation. 4 See, eg, GAOR, 15th Sess., 4th Com., 1103rd Mtg., p. 27, para. 1. 5 J. Castaneda, Legal Effects of United Nations Resolutions. New York; Columbia University Press, 1969, p. 175. 6 GA Res. 1806 (XVII), 14 December 1962. 7 GA Res. 1979 (XVIII), 17 December 1963.

Nations in strong language categorized apartheid as a "crime against humanity";1 considered that any attempt to annex a part or the whole of the Territory constituted an act of aggression; and condemned the policies of financial interests operating in Namibia. In the realization of the importance the indigenous people will play in decolonising Namibia the General Assembly called upon all States to give the indigenous people of Namibia all necessary moral and material support in their 2 struggle for independence. When the 1966 Judgment3 of the International Court of Justice, which stunned the world,4 was handed down, the United Nations took the most decisive decision in its efforts to decolonise Namibia, and terminated5 the South African mandate over Namibia and reaffirmed the right to self-determination and independence of the people of Namibia.6 1 GA. Res. 2074 (XX), 17 December 1965. 2 Ibid., see also G. Abi-Saab, "Wars of National Liberation and the Laws of War", Annals of International Studies (1972), p. 93; on foreign investment, see, the Report of the Committee of "24", UN Doc. A/5840 p. 200, para. 557, where it concluded that the policy of Apartheid offers the foreign companies opportunities to reap huge profits and therefore makes the activities of the international companies the main obstacles to the country's development towards independence. 3 The South West Africa Cases, Second Phase, ICJ Reports 1966, p. 6. 4 See, eg, Rosalyn Higgins, "The International Court and South West Africa: The Implication of the Judgment", 42 International Affairs (1966), p. 573, at p. 577. 5 In fact this measure was once proposed by Guinea in 1960, but at that time such a radical step was not acceptable to the majority which saw the pending legal action at the ICJ as a better approach. GAOR, 15th Sess., 4th Com., 1063rd Mtg., pp. 376-377, paras. 39-45, (24 November 1960). 6 GA Res. 2145 (XXI), 27 October 1966.

Thus, from a theoretical point of view the United Nations attempts to decolonise Namibia by resolutions reached the final point;1 -what remained was the machinery for implementation of that decision. Subsequently, to implement the provisions of Resolution 2145 (XXI) the General Assembly established the United Nations Council for Namibia22 and charged it to "administer South West Africa until independence". The United Nations Council for Namibia did not fare any better than its predecessors because of the uncooperative attitude of the South African Government; and also due to the unwillingness of the Permanent Members to see to it that coercive measures as provided for under the Charter are undertaken. However, because of the wide range terms of reference of the United Nations Council for Namibia, unlike its predecessors, it was able, in the meanwhile, to carry out useful tasks; though not in the direction of the United Nations efforts at decolonisation, but to create facets of an administration. These included issuance of travel documents to Namibians abroad,4 and establishment of a United Nations Institute for Namibia.5 Soon after the termination of the mandate of South Africa to administer Namibia the Security Council added its weight to the United 1 GA Res. 2145 (XXI) was seen as having "closed the door to a chapter of history nearly 50 years in duration". Mr. Goldberg (USA), GAOR, 5th Special Sess., Plenary, 1518th Mtg. para. 110. 2 By Res. 2373 (XXII) of 12 June 1968, the General Assembly renamed the country 'Namibia', and so too the name of the UN Council changed. 3 GA Res. 2248 (S-V), 19 May 1967. 4 GA Res. 2678 (XXV), 9 December 1970. 5 GA Res. 3296 (XXIX), 13 December 1974. 1 Nations efforts to decolonise Namibia. In 1969 the Security Council determined that the presence of South Africa in Namibia was illegal and 2 that it was detrimental to the interest of the international community. Of course, this determination fell short of the requirements for evoking enforcement measures. With the disputed legal points resolved in favour of the anticolonial forces, and also as a result of the development of the principles of international law on decolonisation, there remains only implementation of -the United Nations decisions on decolonisation of Namibia. In view of the intransigence of the South African Goverment the next stage is the determination by the Security Council that the question of Namibia is a threat to the peace, breach of the peace or act of aggression, and then to evoke the enforcement measures of Article 42 of the Charter. And with the inevitable escalation and intensification of the guerilla war, as well as the probable retaliatory measures by South Africa; South Africa's refusal to withdraw her illegal administration or the installation of a regime in Windhoek which is acceptable to South Africa but not the African States and the international Community, is likely to become a threat to the peace and, indeed, an act of aggression. 1 By Res. 246 (1968) the Security Council noted the GA Res. 2145 (XXI); it is worth noting that the Security Council was seized of the question of Namibia indirectly, for humanitarian reasons arising out of the trial of 37 Namibians in 1967, and the anti-colonial forces made sure that it remained seized of the issue until the country is decolonised. 2 Res. 264 (1969), 20 March 1969. Subsequently, the ICJ in response to a Security Council's question - Res. 284 (1970), 29 July 1970 reaffirmed the positions of the General Assembly and of the Security Council and held that the presence of South Africa in Namibia was illegal, see, Legal Consequences for States of the continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, p. 16.

224 4 THE UNITED NATIONS PRESENCE IN NAMIBIA ATTEMPTED The United Nations made repeated efforts to establish its presence in Namibia as a process of its decolonisation measures. But, on the other hand, South Africa was equally determined to keep the United Nations out of Namibia. Consequently, the various missions that went to the country did so only on South Africa's terms and, as seen by her without any adverse effect, if anything to be manipulated by South Africa towards her goals. The first United Nations appearance in Namibia was the two members of the Good Offices Committee; the British and the Brazilian members went there in their private capacity, and only to observe - as tourists. As a result the report of the Good Offices Committee did not deal with 1 the visit of these two members. In fact, the terms of reference of the 2 Good Offices Committee did not include a visit to Namibia. It was only as a result of a question in the Fourth Committee3 that the Chairman of the Good Offices Committee had to explain the visit. It appears that the two members met only Government officials and at an informal level, and did not meet the indigenous people.4 The visit of the two officials to Namibia, therefore, appears to have had very little, if any, effect as an exercise in establishing United Nations presence in Namibia. In fact, South Africa was conscious of the fact that such a visit should not be interpreted as her acceptance of the United Nations position with regard to Namibia. 1 UN Doc. A/3900. 2 GA Res. 1143 (XII), 25 October 1957. 3 GAOR, 13th Sess., 4th Com., 752nd Mtg. p. 42, paras. 12-16. 4 Ibid., p. 41, paras. 4, 9 when the Chairman was asked what they did to ascertain the views of the indigenous inhabitants, he replied that they did not have mandate for such an investigation, and that they did not wish to trespass on the domain of the Committee on South West Africa.

The next attempt of United Nations presence in Namibia ended in a fiasco, with the drama of the Chairman of the Special Committee on South. West Africa, Ambassador Carpio of the Philippines, alleging that he was 1 drugged. The initiative came from the South African Government. In 1962, and it is worth noting that it was while the South West Africa Cases were in progress, (being heard at the Hague,) South Africa indicated that she would be prepared to receive the Chairman and the Vice-Chairman of the Special Committee on South West Africa. But, on condition2 that they would not raise or discuss anything in Resolution 1702 (XVI), operative paragraph 2, from "b-h", ie: the evacuation from the Territory of all military forces of the Republic of South Africa; the release of all political prisoners; the repeal of all discriminatory laws and regulations; preparations for general elections; advice and assistance to the Government resulting from the general elections; co-ordination of the economic and social assistance; the return to the Territory of indigenous inhabitants without risks of imprisonment. South Africa argued that these are matters pending before the International Court of Justice. It may be observed that the Government of South Africa's consent to allow part of the Special Committee into Namibia might have been necessitated by the legal argument she had developed at the Hague in the Preliminary Objections. Particularly, that the dispute is not such that it cannot be settled by negotiations.3 This is borne out by the fact that the previous year South Africa attempted to invite three former 1 UN Doc. A/Ac. 110/SR 17, p. 7. 2 UN Doc. A/5202, p. 2. 3 South West Africa Cases, Preliminary Objections, ICJ Reports 1962, p. 327,

226- presidents of the General Assembly to visit Namibia.1 The language of the letter agreeing to the visit was clearly aimed at demonstrating that the negotiations were continuing, it stated: "... the South African Government has equally consistently maintained its preparedness - and indeed its keen desire - to find a way out of the differences of opinion that had arisen between the United Nations and South Africa since the first session of the United Nations in 1946 in regard to the status and administration of South West Africa".2 Ironically, at this time South Africa, for her own ends wanted a semblance of United Nations presence in Namibia. Thus, despite the fact that part of the Special Committee was being allowed only on condition that they abandoned their terms of reference for the decolonisation of Namibia; nevertheless, "for the purpose of acquainting themselves with the situation in the Territory, of establishing a United Nations presence there and of exploiting the best ways and means of implementing General Assembly Resolution 1702 (XV)"3 they consented. And the Chairman, Ambassador Carpio, of the Philippines, and the Vice-Chairman, Mr. Salvador Martinez de Alva, of Mexico, undertook the mission to South Africa and Namibia from 5 May to 28 May 1962. 1 CAOR, 17th Sess., Plenary, 1128th Mtg., para. 62. 2 UN Doc. A/5212, p. 2; yet in the letterof 1954 addressed to the Chairman of the Committee on South West Africa, the tone was unsoliciting, it was stated: "As the terms of reference of your Committee appear to be even more inflexible than those of the Ad Hoc Committee the Union Government are doubtful whether there is any hope that new negotiations within the scope of your Committee's terms of reference will lead to any positive results". UN Doc. A/2666, Annex I, p. 6. Letter dated 25 March 1954 from the Permanent Representative of the Union of South Africa to the UN, addressed to the Chairman of the Committee on South West Africa. 3 UN Doc. A/5212, p. 4, para. 10.

During a course of nine days the Chairman and the Vice-Chairman of the Special Committee visited a number of places in Namibir. They met many people in most of the major towns; and heard strong rejection of South Africa's administration in Namibia from the representatives of the indigenous people. They were also met by groups, both Africans and Europeans, which supported the South African Government. But the majority of the African representatives favoured United Nations presence I in Namibia. The point that overshadowed the whole visit and thus negated any positive result, was the so-called communique issued by the South African Government on 26 May, and allegedly approved2 both by the Government of South Africa and by the visiting United Nations mission. The said communique asserted that the United Nations visiting mission found no evidence that: (i) the situation in the Territory was a threat to international peace and security; (ii) the Territory was being militarized; and, (iii) there was gradual extermination of the population.3 Thus the purpose of the communique was to negate the bases of the United Nations resolutions on Namibia, and, more important, to disprove 4 the charges levelled against South Africa by Ethiopia and Liberia at the International Court of Justice. 1 UN Doc. A/AC.ll0/SR.Il/Add. I, p. 5. 2 The Vice-Chairman insisted that the communique was issued with the consent of the Chairman; the Chairman did not attend the last session of the discussions as he was not feeling well. On the other hand, the Chairman denied that he gave such authority, or that he even participated in the drafting of the said connunique. See, GAOR, 17th Ses3., Sup. No. 12, (A/5212) Annex IV and VI. 3 Ibid., Annex IV. 4 The South West African Cases, Preliminary Objections, ICJ Reports 1962, pp. 322-326.

At the meeting of 1972 the Security Council authorized the Secretary-General to initiate contacts with South Africa so as to establish the necessary conditions to enable the people of Namibia to exercise their right of self-determination.1 Many delegations from Asia and Africa were unenthusiastic about contact being taken with the Government of South Africa; but to allow the Security Council to exploit all possible avenues they refrained from opposing it.2 In fact, when the same proposal was suggested by Italy and the United States in the meeting of the Ad Hoc Committee of the Council3 it received no support from the Afro-Asian members.4 But at the Addis Ababa meeting of the Security Council in the desire to "take new initiatives"5 even the Afro-Asian states concurred for contacts to be established with the South African Government. South Africa at once expressed her willingness to co-operate in the discussion about self-determination for the people of Namibia, provided the Secretary- General will not come as a spokesman of the "extremists of the OAU".6 1 Security Council Res. 309 (1972) of 4 February 1972. 2 See, eg, Security Council 27th Year, 1638th Mtg., para. 106, per delegate of India (4 February 1972). 3 Security Council Res. 276 (1970), 30 January, this Committee was formed by all the members of the Security Council. SC Doc. S/9632. 4 UN SC Doc. S/10330. 5 Security Council 27th Year, 1627th Mtg., para. 10, an address by His luiperial Majesty Haile Selassie I, Emperor of Ethiopia, (28 January 1972). 6 UN SC Doc. S/10738. The so-called communique shocked and angered the people of Namibia. And they questioned why the two officials accepted to undertake the visit under the conditions imposed by South Africa. It was felt in the General Assembly that the Special Committee on South West Africa transgressed its terms of reference by approving the visit on the conditions imposed by South Africa.2 The Special Committee on South West Africa repudiated the said communique and accepted the joint report of the Chairman and the ViceChairman.3 And the General Assembly without mentioning the report or the communique dissolved the Special Committee on South West Africa and transferred its functions to the Committee of Twenty Four.4 The next phase of the United Nations presence in Namibia was initiated by the Security Council. For a long time the General Assembly attempted to get the Security Council involved in the question of Namibia.5 The first hesitant step the Security Council took towards involvement in the question of Namibia came through humanitarian consideration rather than direct decolonisation approach.6 Thence the Security Council remained seized of the question of Namibia; and three months later it moved on to the decolonisation approach.7 1 See, eg, Mr. Markus Cooper (Namibian Petitioner), GAOR, Special Conn. on South West Africa, 12th Mtg. A/AC.110/SR.12. 2 GAOR, 17th Sess., Plenary, 1128th Mtg., para. 177. 3 UN Doc. A/AC.110/SR, 12-14. 4 GA Res. 1806 (XVII), 14 December 1962. 5 See: GA Res. 1596 (XV), 7 April 1961; 1702 (XVI), 19 December 1961; 1979 (XVIII), 17 December 1963; 2074 (XX), 17 December 1965; 2145 (XXI) 17 October 1966; 2372 (XXII), 12 June 1968; 2315 (XXII), 16 December 1967; 2248 (s-V), 19 May 1967. 6 By Resolution 245 (1968) of 25 January the Security Council deplored the "illegal trial" of the 37 Namibians. 7 Security Council Res. 246 (1968) ofr14 March 1968.

Z3U- Thus, for the first time,1 the Secretary-General added the weight of his office to the efforts of the United Nations to establish its presence in Namibia as a process of decol~nisation. In consequence, the Secretary-General visited South Africa and Namibia in March 1972. The overwhelming majority of the representatives of the indigenous inhabitants who met with the Secretary-General, during his two days' stay in Namibia, were totally opposed to South Africa's presence. They urged upon the United Nations to obtain the immediate removal of the South African administration from Namibia and the establishment of United Nations presence to prepare- the country for independence as a unitary state.2 In the discussion with the South African Government an understanding was reached that a representative of the Secretary-General should be appointed to continue the discussion; and it was also noted that the South African Government confirmed that its policy was one of self-determination and independence.3 In no doubt the Government of South Africa added the latter point so as to encourage the Security Council to continue the contacts. In fact, the contacts were continued, and the proposal for appointment of a representative of the Secretary-General was approved., Ambassador Alfred Martin Escher of Switzerland was appointed as the representative of the 1 It may be noted that the General Assembly by Res. 1805 (XVII), 14 December 1962 urged the Secretary-General to take all steps to establish the UN presence in Namibia, and requested the SecretaryGeneral to appoint a UN Technical Assistance Resident Representative for Namibia; But South Africa has consistently refused to allow any UN resident official in Namibia, and she has also refused to accept any assistance from any UN agency. 2 UN SC Doc. S/10738, paras. 29-30. 3 Ibid., para. 16; it should be noted that this was during the period that the South African Government was engaged in its so-called policy of "outward looking", intended to woo independent Africa. 4 SC Res. 319 (1972), 1 August 1972.

Secretary-General, with the main task "to assist in achieving the aim of self- determination and independence and to study all questions relevant thereto".' In pursuance of his tasks Ambassador Escher visited South Africa and Namibia from 8 October to 3 November 1972; and had 17 days tour of Namibia - the longest United Nations 'presence in Namibia.2 In this first thorough consultation with the inhabitants of Namibia inside the country ever carried out by an international organisation; the people of Namibia reiterated what they proposed to the Secretary-General early in the year; withdrawal of the South African administration from Namibia, and establishment of a United Nations presence. "They proposed that as a first step a United Nations office should be opened innediately on a permanent basis".3 The Security Council noted the views expressed by the Namibian people which confirmed "the consistently held position of the United Nations on this question".4 On the other hand, the conclusions of the representative of the Secretary-General, resulting from his discussions with the Prime Minister of South Africa, were received with mixed feelings. Perhaps the questionability of the conclusions of the representative of the SecretaryGeneral stems from the ambiguity of his terms of reference; of course, unfamiliarity with the problem and particularly with the South African Government policy towards the Africans cannot be totally ignored. 1 UN SC Doc S/10738; the appointment of the representative of the Secretary-General and the framing of his terms of reference was done in consultation with the Government of South Africa; ibid., para. 47. 2 UN SC Doc. S/10832. 3 Ibid., Sec. 2, para. 3. 4 SC Res. 323 (1972) of 6 December 1972.

The group of the Security Council, with which the Secretary-General was to keep in constant consultation, urged upon the representative of the Secretary-General, in an aide memoire, that the main task was "to obtain a complete and unequivocal clarification from the Government of South Africa with regard to its policy of self-determination and independence for Namibia".2 This point in the final proved to be the rock on which the contacts foundered. This point embodied the main substantive principle on which the decolonisation attempts of the United Nations are based. But, as the point is put, it is ambiguous. It gives the impression that the principle of self-determination as crystallized and concretized by the General Assembly Declarations of 1960 on Decolonisation and of 1970 on Friendly Relations and Cooperation, is open to new interpretation by the Government of South Africa.3 Or that South Africa can negotiate the principle of self- determination with the United Nations. The point of emphasis should have been that the South African Government must completely and unequivocally accept the principle of self-determination in relation to Namibia. For the whole impasse was due to the fact that South Africa does not accept the principle of selfdetermination as developed by the United Nations. The version of the South African Government of self-determination is in furtherance and a variant of apartheid; and that is already rejected by the United Nations.4 1 SC Res. 309 (1972), 4 February, the group of the Security Council was composed of Argentina, Somalia and Yugoslavia. 2 UN SC Doc. S/10832, Annex I, para. 5. 3 This line of argument was advanced by Somalia, when she argued for discontinuance of the contacts with South Africa in November 1972, but found herself at that time in the minority. SC 27th year, 1679th Mtg., para. 54. But the puzzling point is that Somalia was a member of the Group of the Security Council which submitted the aide memoire. 4 Eg, GA Res. 1568 (XV) of 18 December 1960; Res. 2074 (XX) of 17 December 1965; the latter terms it a "crime against humanity".

It was, perhaps, as a result of the uncertainty on the point concerning self- determination that Ambassador Escher, the representative of the Secretary- General, concluded: "4. Concerning the interpretation of the South African Government's policy of self-determination and independence with regard to Namibia, the Prime Minister felt that it was not the appropriate stage to go into a detailed discussion of that question. He felt that this could be done with better results, once the necessary conditions are established and the inhabitants have had more administrative and political experience. The Prime Minister's acceptance of the need to establish necessary conditions appears to be in line with the objective of the Security Council".1 Leaving aside the highly questionable conclusion that the Security Council's objective was to establish necessary conditions appropriate for implementation of the principle of self-determination; that conclusion was in total violation of the General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples.2 The truth of the matter is that when the Government of South Africa talk of self- determination in Namibia it means an entirely different thing from the principle of decolonisation as understood at the United Nations. According to the Government of South Africa, the principle of self-determination is racially conceptualized. It is a geopolitical 1 UN SC Doc. S/10832, Sec. IV. 2 GA Res. 1514 (XV), 14 December 1960, particularly operative para. 3. extension of apartheid. The impliedI acceptance by the representative of the Secretary-General of the South African Government's racially determined principle of self-determination was thus in direct contradiction to the United Nations law of decolonisation. 2 Consequently, many delegations were unhappy with the report. It was felt that the report of the representative of the Secretary-General was'hot only disappointing but also in some respects constituting a retrograde step".3 However, the contacts with South Africa were continued on a clear understanding that any solution must conform with the "inalienable and imprescriptible right of the people of Namibia to selfdetermination, national independence and the preservation of their territorial integrity, on which any solution for Namibia must be based".4 The Security Council rejected any "interpretation or policy to the contrary".5 With the ambit of the Secretary-General mandates so unambiguously clarified, any meaningful progress in the contacts with the Government of South Africa became remote. For the South African Government was not prepared to accept the principle of self-determination as developed in 1 The Representative of the Secretary-General on Bantustan (Homeland) policy of the South African Government concluded: "5. The Prime Minister believed that experience in self-government was an essential element for eventual self.'determination and that such experience could best be achieved on a regional basis. However, when I made it clear that simultaneously an authority for the whole Territory would have to be established, he agreed to certain measures involving the 'Territory as a whole'. This would .appear to be in line with the aim of maintaining the unity of Namibia". UN SC Doc. S/10832, Sec. IV. 2 SC 27th Year, 1682nd Mtg., para. 35. 3 Ibid., 1679th Mtg., para. 49, per Mr. Nur Elmi (Somalia). 4 SC Res. 323 (1972) of 6 December. 5 Ibid.

ZJ4a in and by the United Nations. After a year of inactivity the Security Council, on- the insistence of the United Nations Council for Namibia,1 unanimously discontinued further contacts with the South African Govern2 ment. The attempts of the United Nations to establish its presence in Namibia as a measure of decolonisation did not come off. However, the various visits to Namibia, particularly, that of the representative of 3 the Secretary-General, did yield valuable information; and at any rate put the United Nations, as perceived by Namibians, on the map of Namibia. And that in itself may have rekindled4 the determination of the Namibian people never to succumb to apartheid. I SC 28th Year, S/PV 1756 (10 December 1973), p. 14; see also UN SC Doc. S/10921/corr.l. 2 SC Res. 342 (1973) of 11 December. 3 This was the point emphasized by the Secretary-General when presenting his report covering the visit of his Representative, SC 27th year, 1678th Mtg., para. 2, (28 November 1972). 4 See, eg, SC 27th year, 1682nd Mtg., para. 52, (6 December 1972).

CHAPTER VI NAI4IBIA AT THE INTERNATIONAL COURT OF JUSTICE: THE LEGAL BATTLE I GENERAL COMMENT "Every Mandate will be applied on its own merits, and I do not expect that, at any time, a formalistic and legalistic method of interpretation will be applied, ... To my mind, there is little danger that in the case of documents of a political, international nature, like the Mandates, the rule 'Qui de uno dicit de altero negat', would easily find application". (Dr. van Hamel, Director of the Legal Section, Lea-ue of Nations. )l As it could be noted from the preceding analysis, it was not the first time in 1960 that the Namibia question was before the International Court of Justice. Various facets of the question were considered by the International Court in the 1950s.2 In these advisory opinions, by and large, the legal issues were clarified. But faced with an un-cooperative Mandatory Power, it soon became apparent that because the advisory 1 Archives of the League of Nations, 1919-1927, 1/12093/161. (A note by Dr. Van Hamel to Rappard, dated 22 April 1921), United Nations Library, Geneva. 2 International Status of South West Africa, Advisory Opinion: ICJ Reports 1950, p. 128; South West Africa - Voting Procedure, Advisory Opinion of 7 June 1955: ICJ Reports 1955, p. 67; Admissibility of hearings of petitioners by the Committee on South West Africa, Advisory Opinion of I June 1956; ICJ Reports 1956, p. 23. On these occasions the Court considered the question of Namibia as an, ancillary to the General AssemblZ's attempts to resolve the question. opinions are procedurally not legally binding upon the Member States of the United Nations they would not help much.1 It was thus an-endeavour of the Member States of the United Nations, particularly the African group, to create a legally obligatory implementation mechanism,2 which would result from a contentious case through Article 94 of the Charter of the United Nations,3 that Ethiopia and Liberia4 were chosen to take the Namibia question to the International Court in 1960. Ethiopia and Liberia in their identical submissions primarily charged South Africa with failure to implement properly the provisions of the Mandate for South West Africa and of the Covenant of the League of Nations. They particularly asserted that "the Union has failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory." 5 The case of the 1 Towards the end of the 1950s an impasse had been reached at the UN on the question of Namibia. South Africa, for example, refused to take part in the implementation mechanism created by the UN to implement the advisory opinions of the.ICJ, see, supra. Chapter V, p. 209, note 3; see also, Keith Highet, "The South West Africa Cases", Current History 52 (1967), p. 157. 2 See, eg, L.C. Green, "South West Africa and the World Court", International Journal 22 (1967), p. 39; see also, UN Doc. A/3625 (1957); R.N. Nordau, "The South West Africa Case", The World Today (March 1966), p. 122-130. 3 But see infra. Chapter VIII, Sec. 2. 4 Eg, "Ethiopia and Liberia - the only two African States which had been members of the League - were selected to bring the action, which involved the compulsory jurisdiction of the Court and not merely an Advisory Opinion". R.N. Nordau, loc. cit., at p. 125. 5 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections, Judgment of 21 December 1962: ICJ Reports 1962, p. 319 at p. 323, para E. Hereafter referred to as South West Africa Cases, ICJ Reports 1962.

Applicants was largely formulated in the same vein as the ruling of the Court in its previous advisory opinions, and also relied on the decisions of the United Nations. It may be noted that the case of Ethiopia and Liberia as presented and developed was not specifically presented and argued from the point of view of decolonisation; although the question of Namibia is a question of decolonisation. At that time the emphasis was still simply on the violation and the improper application of the relevant provisions of the mandate.2 It may be observed in parenthesis, so as to place the theoretical dimensions of the question of Namibia in proper perspective, that basically the mandates system straddled colonialism and decolonisation. It was the first international action which pointed more clearly toward decolonisation. But it did not, of course, cover all dependent territories, it applied only to a small part thereof; nor did it envisage an inclusion of all the dependent territories in the system at a later stage. On the contrary, the mandates system co-existed with colonialism and colonisation. In consequence, the mutual exclusive principles of the two phenomena were prevalent at the same time. However, there is no doubt, and this is well demonstrated by the historical background, that the mandates system aimed eventually at independence. The realization of this point was and is of vital importance to the resolution of the question of Namibia by international organisations. I South West Africa Cases, Pleadings 1966, Vol. I, pp. 32-199. 2 In the Memorials the point was made that the actions of South Africa have impeded the realization of self-determination by the inhabitants. South West Africa Cases, ICJ Reports 1962, p. 325, para, 5. But this point was not developed nor fully argued. See, eg, ibid., Pleadings, Vol. I, pp. 184-195.

However, because the case was not presented and argued as a decolonisation problem, it was not easy to perceive the non-colonisation features of the mandates system. It was not observed that at the Versailles Peace Conference the Powers purposely precluded certain, then internationally accepted, rights to accrue to certain States: the right to acquire territory by conquest. Namibia was conquered by the South African army; yet, due to superior principles - nonannexation, self- determination - she was not allowed to annex Namibia.2 To safeguard this new international principle whereby territories would not be annexed as a result of conquest, but that they would be administered in the interests of the inhabitants (who were not yet able to stand by themselves), the States agreed that for the administration of such territories should be applied the principle of international supervision. 1 Ibid., Vol. II, p. 380. 2 It seems South Africa never realized this fact, for in 1971 at the ICJ she attempted to argue that her title over Namibia was derived from conquest. See, Legal Consequences for States of the continued presence of South Afiica in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16, at p. 43.

South Africa raised preliminary objections1 as to the jurisdiction of the Court and to the admissibility of the case.2 The Intefnational Court in 1962 rejected all the four preliminary objections raised by South Africa.3 And thus the scene was set for the final adjudication on the merits. 1 For a scholarly study on preliminary objections, see, Georges Abi-Saab, Les Exceptions pr~iminaires dans la procedure de la Cour internationale, Paris: Editions A. Pedone, 1967. 2 The four preliminary objections raised by South Africa were: "(1) The Mandate for South West Africa has never been, or at any rate is since the dissolution of the League of Nations no longer, a 'treaty or convention in force' within the meaning of Article 37 of the Statute of the Court, this submission being advanced (a) with respect to the Mandate as a whole, including Article 7 thereof; and (b) in any event, with respect to Article 7 itself; (2) Neither the Government of Ethiopia nor the Government of Liberia is 'another Member of the League of Nations', as required for locus standi by Article 7 of the Mandate for South West Africa; (3) The conflict or disagreement alleged by the Governments of Ethiopia and Liberia to exist between them and the Government of the Republic of South Africa, is by reason of its nature and content not a 'dispute' as envisaged in Article 7 of the Mandate for South West Africa, more particularly in that no material interests of the Governments of-Ethiopia and/or Liberia or of their nationals are involved therein or affected thereby; (4) The alleged conflict or disagreement is as regards its state of development not a 'dispute' which 'cannot be settled by negotiation' within the meaning of Article 7 of the Mandate for South West Africa." South West Africa Cases, Pleadings, Vol. I, pp 213-214. 3 Ibid., ICJ Reports (1962), pp. 319-347.

One general point that may be noted about the judgment of the International Court in the Second Phase of these cases is that it relied heavily on the notion of reasonableness. The Court stated that it "must have regard to the situation as it was at that time, which was the critical one, and to the intentions of those concerned as they appear to have existed, or are reasonably to be inferred, in the light of that situation".1 No documentary evidence was referred to, the intention of the parties was determined by what appears to be reasonable to the Court. Judge Jessup was thus obliged to note in his dissenting opinion that "the judgment accepts or rejects certain conclusions by the test of their acceptability as being reasonable".2 The entire decision of the Court in 1966 appears to have been one gigantic piece of reasonableness. For example, the aanalogy between the minorities' provisions and the mandates' provisions was rejected because it would have been unreasonable for all the Members of the League to institute proceedings against a mandatory state.3 The Court emphasized such unreasonableness because proceedings may be instituted even where the Council of the League had agreed to that particular action by the mandatory state.4 1 South West Africa, Second Phase, Judgment, ICJ Reports 1966, p. 6, at p. 23; hereafter referred to as South West Africa, ICJ Reports 1966. 2 Ibid., p. 424. 3 Ibid., pp. 40-41; yet when considering the question of petitions the expe:rience and procedures concerning minorities were taken into account in the Mandates Commission. See, PMC Minutes, 3rd Sess., 1st Mtg., p. 9. 4 Ibid., p. 46; that was a notion of reasonableness in a rarefied artificial atmosphere of a moot, and not of the real world of give and take, for a resolution of a real disagreement.

The notion of reasonableness was used to oust "broad, clear and precise"'1 provisions of a treaty, which gave "rise to no ambiguity".2 In the common law the notion of reasonableness, popularized by the mythical "reasonable man in the Clapham Omnibus!',3 is frequently used. Of course, the 'reasonable man' is a fictional creation of the common law, and it is only the reasonableness of the presiding judge. In the common law the notion of reasonableness has been used more in situations of unwritten legal rules, for example, in the tort of negligence. But what is important is that the notion of reasonableness would make sense, and would approximate justice, as it does in the common law system, mainly in a homogenous situation.4 In view of the heterogeneity of the international community, and more significantly the scepticism shown incertain quarters5 to principles of international law which related to and were influenced by colonisation and colonialism, the notion of reasonableness should not be resorted to lightly; in treaty interpretation, it should, if at all, be resorted to very sparingly and cautiously. Even then it should only be resorted to if other, more secured, aids of treaty interpretation - travaux preparatoires, historical background, I South West Africa, ICJ Reports 1962, p. 343. 2 Ibid., 3 See, eg, Winfield and Jolowicz on Tort, 10th Edition, W.V.H. Rogers (ed) London: Sweet and Maxwell, 1975, p. 26. 4 The 'international' reasonable man of Windhoek or of Lagos is not the same as the 'international' reasonable man of London or of The Hague; and foz: that matter what is reasonable from the point of view of colonisation could not necessarily be reasonable from a decolonisation point of view. 5 See, eg, Georges M. Abi-Saab, "The Newly Independent States and the Rules of International Law: An Outline",Harvard Law Journal 8 (1962) pp. 95- 121; ibid., Carnegie Endowment Conference on the Newly Independent States and International Law, "Some Reflections and a Selected Bibliography", Carnegie Endowrment for International Peace, European Centre, Geneva, 1963; ibid., "The Third World and the future of the International Legal Order", Revue egyptienne de droit international, 29 (1973), pp. 27-66. intentions of the parties, purposes of the agreement, contemporaneous and subsequent practice - are not helpful. In the South West-Africa Cases, Second Phase, the Court seems to have relied greatly on the notion of reasonableness. Therefore, documentary evidence would nullify assertions and conclusions based mainly on the notion of reasonableness. 2 THE LEGAL INTEREST OR THE RIGHT (i) Were the legal interests or the rights of the Applicants considered in 1962? The question of the legal interests or rights of the Applicants in the case was thoroughly considered at the preliminary objections' stage. The Respondent's third preliminary objection challenged the legal interests or rights of the Applicants in their case, viz: "3. In any event the conflict or disagreement alleged by theApplicants to exist between them and the Respondent, is not a 'dispute' as envisaged in the said Article 7, in that the said conflict or disagreement does not affect any material interests of the applicant States or their nationals".' (emphasis added) South Africa alleged that the Applicants had no legal interests in the cases before the Court. The third preliminary objection as it can be observed was based on the general principle of law, succinctly put, "pas d'inter2t, pas d'action', that only the one with affected legal interest can litigate. It was thus concerned with the question of admissibility. Of course, issues of admissibility in the final analysis affect the jurisdiction of the Court.2 But this was not the issue. 1 South West Africa Cases, Pleadings, Vol. I, p. 213; see supra p. 239, note 2. 2 For a detailed analysis of the difference between admissibility and jurisdiction, see Georges Abi-Saab, Les Exceptions preiminaires dans la procedure de la Cour internationale, op. cit., Chapter VII.

What was the issue as stated in the third preliminary objection, and to which the Court reverted, and is the core of its judgment in 1-966, was the Applicants' legal interests in the case. The judgment of 1966 was based on this point. It is, therefore, important to consider the question of the legal interest or right of the Applicants in the case closely. It is also important to consider whether this issue was disposed of at the preliminary objection's stage or not. Despite the inelegance that could result from excessive quotations we, nevertheless, would take that risk and present the reasoning of the Court in 1962 and in 1966 largely in its own words, so as to- demonstrate that the Court reverte to the same legal interest of the Applicants in 1966. The Respondent developed his argument on the third preliminary objection as follows: "They both, however, found their cases as to locus standi on a contention that they (as former Members of the League of Nations) have a legal interest in the matters submitted for adjudication; namely, 'a legal interest in seeing to it through judicial process that the sacred trust of civilization created by the Mandate is not violated'. "This contention can be sound only if, upon a proper construction of Article 22 of the Covenant and the Mandate Instrument, it must be concluded: (a) that the individual lembers of the League were intended to have a legal interest in the observance by the Mandatory of the conditions imposed in the Mandate for the benefit of the inhabitants of the Territory, even in cases where the breach of these obligations by the Mandatory did not affect the material interests of individual League Members, either directly or through their nationals; and (b) that, in view of the said legal interest each Member of the League, if it considered that the Mandatory was not observing its obligations towards the inhabitants was entitled not only to raise the matter in the League for its consideration and attention, but also to institute with regard thereto contentious proceedings against the Mandatory in terms of Article 7 of the Mandate".1 1 South West Africa Cases, Pleadinps, Vol. I, pp. 379-380.

South Africa proceeded to submit arguments against any legal interest of the Applicants in the provisions of the Covenant of the League and of the Mandate relating to the development and welfare of the inhabitants; and concluded: "the better view would seem to be that it was only the League, as a legal persona, that acquired a legal interest in the obligations imposed in the Mandate for the benefit of the inhabitants of the territory, save insofar as the said obligations were intended to operate for the benefit also of League Members or their nationals in which case they, too, would have had an interest in the observance of those obligations".1 Thus, in a nutshell, the case of South Africa on the legal interests of the Applicants, as submitted in the third preliminary objection, was that the obligations imposed on the Mandatory State for the benefit of the inhabitants were owed to the League of Nations and not to the Member States. It appears that due to imprecise knowledge of the historical background to the establishment of the mandates system, South Africa perceived rather narrowly her obligations with regard to the inhabitants. She perceived her obligations as concerning only good colonial administration and not also decolonisation. Even then the limitation of the legal interest in the welfare of the inhabitants only to the League of Nations, as will be shown shortly, was legally incorrect and contrary to the contemporaneous documentary evidence*' It seems the International Court in 1966 suffered from the same defect. The Court in 1962 rejected the argument of South Africa on this point. No distinction was made, nor could it legally be made, between legal interest for the admissibility of the Applications, and legal interest in the decision on the merits, which perhaps could have been postponed; and no type of legal interest was attached to the merits. 1 Ibid., p. 381.

For the Court to be seized of the dispute the Applicant must show that he has a legal interest in the matter which the Respondent has violated. Once the Court is thus properly and legally seized of the dispute then it should give its decision on the point in dispute. The division of the litigable legal interest into its atoms was only early procedural features of the common law system, the only purpose of which was for the application of the correct writ. There was no significance of legal substance in such divisions, on the contrary, they became rather constrictions to the administration of justice. The resulting denial of justice on the basis of the technicalities of the forms of action was the blemishes in the development of the common law. The forms of 1 action were happily buried by the Judicature Acts; and, of course, were not attempted to be revived by the International Court in these cases. It is legally not possible for the Applicant to show that he has a legal interest in the issue referred to the Court for the case to be admitted, and then to be adjudged that he did not show legal interest in the merits to be entitled to the judgment. The merits relate to the resolution of the dispute based on the arguments on the law advanced and facts submitted by the parties; but not to the nature of the dispute, which is a preliminary point in most cases, and that was the position in the South West Africa Cases, decided at the stage of the preliminary obj ec tions. Thus the third preliminary objection advanced by South Africa was meant to preclude the admission of the applications on the basis that there was no justifiable dispute due to lack of legal interest. In 1962 1 See generally, S.F.C. Milson, Historical Foundations of the Common Law. London: Butterworths, 1969; Brian Flemming, "South West Africa Cases, Ethiopia v South Africa; Liberia v South Africa. Second Phase", Canadian Yearbook of International Law, Vol. V (1967), p. 241. the International Court held that there was a justifiable dispute between the parties; but in 1966 it held that although there-was a dispute between the parties,1 the Applicants did not show legal interests in the merits to be entitled to a judgment. The overall conclusion of the Court in 1966 as contrasted to that of 1962 is legally defective. For, theoretically, it is not legally possible to differentiate between the legal interest of 1966 which was found wanting.2 Hence a member of the Court censured the reasoning of the Court in 1966 as a "procedure of utter futility",3 and pertinently posed a homely question: "why should any State institute any proceedings if it lacked standing to have judgment rendered in its favour if it succeeded in establishing its legal or factual contentions on the merits?"4 The Court could not answer that question.5 The Court's attempt was "wholly unsatisfactory and as artificial as its entire juristic edifice of hypotheses and distinctions". 6 1 In fact the Court did not say so exactly, but for the sake of presenting our argument on the legal interests of the Applicants in both phases of the Cases, it can be assumed. However, in the next section argument will be led to show that the Court over-ruled itself without proper legal consideration of the legal principles involved in such a conclusion. 2 The question was not the legal basis of the legal interest, as the Court in 1966 attempted to show that adjudication clause cannot be the foundation of the legal interest but that such interest must be provided for somewhere else, but whether the Court in 1962 found such legal interest established. The basis of the legal interest of the Applicants in 1966 will be considered in the third section of this chapter. 3 Judge Jessup in his dissenting opinion, South West Africa Cases, ICJ Reports 1966, p. 382. 4 Ibid. 5 But see South West Africa Cases, ICJ Reports 1966, p. 18, para. 5. 6 J.H.W. Verzijl, "The South West Africa Cases (Second Phase)", International Relations (London), Vol. 3 (1966), p. 87 at p. 97.

The Court in 1966 contradicted its 1962 decision but, with due regard, it did not boldly over-rule its 1962 decision. On the contrary, it attempted to ascribe a different meaning to the judgment of 1962, viz: "It thus appears that the Court in 1962 did not think that any question of the admissibility of the claim, as distinct from its own jurisdiction arose".1 This was despite the vehement protest and denial by the majority of 1962.2 The dissenting opinions appended to the 1962 Judgment show unmistakenly that indeed the view of the technical majority of 1966, that the Applicants' legal interests could relate only to the 'special interests', was urged upon the Court in 1962, but was rejected. For example, President Winiarski argued that "it is a question of whether the Court has jurisdiction to hear a case in which the Applicants have no individual legal interests which is in issue for them".3 The Court in 1962 rejected that argument. 1 South West Africa Cases, ICJ Reports 1966, pp. 42-43, para. 7 but South Africa's judge ad hoc, Van Wyk, wanted the 1962 Judgment overruled, see ibid., Sep. Op., p. 65. 2 Ibid., Wellington Koo Dis. Op., pp. 216-217; KoretskyDis. Op., p. 239; Tanaka, Dis. Op., p. 250; Mbanefo, Dis. Op., 494; and Judge Padilla Nervo, Dis. Op., pp. 447-450. 3 Dis. Op., South West Africa Cases, ICJ Reports 1962, p. 449. Indeed, the whole of President Winiarski's dissenting opinion was only on this point of legal interest of the Applicants, which he found lacking. Ibid., pp. 449-458. The weakness of President Winiarski's interpretation of the interest of the Member States in the mandates system is glaring when the question is considered in the light of the historical background; see supra. Chapter II; Keith Highet observed that "there is no substantive reasoning in the 1966 judgment which was not in fact advanced by dissenting opinions in 1962", loc. cit., p. 159; and Judge Padilla Nervo stated that "the majority of the Court is reproducing on the present occasion the arguments advanced in dissenting opinions against the judgment of 1962", South West Africa Cases, ICJ Reports (1966), Dis. Op., p. 447. z4w Again, it is significant to note that Judge Spender who, in 1966 as the President of the Court produced the technical majority-by casting his vote in a tie vote, in 1963 placed a different interpretation on the 1962 Judgment. On the crucial issue of the legal interests of the Applicants, he stated: "The clause (Article 7 of the Mandate), in the Court's opinion, thus provided an essential judicial security for the performance of these obligations. These considerations led the Court to conclude that the adjudication clause in the Mandate Instrument covered not only disputes between a State, a Member of the League, and the Mandatory Power in relation to provisions of the Mandate Instrument whereunder individual rights or interests were conferred upon States Members of the League or their nationals, but also the provisions thereof which imposed general obligations upon the Mandatory Power in the interests of the people of the Mandated Territory - the obligations to carry out the 'sacred trust' imposed upon and undertaken by it".1 It is thus incomprehensible how the Court in 1966 could distinguish the 1962 Judgment by contending that in 1962 the Court did not address its 2 mind to the question of admissibility. There is no doubt that Judge Spender fully understood that the Court in 1962 decided that the legal interests of the Applicants in their cases did not only apply to the "special interest" but also to the "obligations to carry out 'sacred trust' . 1 Case concerning the Northern Cameroons, (Cameroon v United Kingdom) Preliminary Objections, Judgment of 2 December 1963; ICJ Reports 1963, p. 15, Separate Opinion of Judge Sir Percy Spender, at p. 65; see also, G.J. Terry, "Factional behaviour on the International Court of Justice: An Analysis of the First and Second Courts (1945-1951) and the Sixth and Seventh Courts (1961-1967)", Melbourne University Law Review, Vol. 10 (1975-1976), pp. 59-117. 2 See supra. p. 247, note 1. 3 Case concerning the Northern Cameroons (Cameroon v United Kingdom) Preliminary Objections, Judgment of 2 December 1963; ICJ Reports 1963, p. 15, Separate Opinion of Judge Sir Percy Spender, at p. 65.

Another attemipt by the Court to distinguish between legal interests or rights of the Applicants in the first and second phases of the South West Africa Cases was based on the conceptual differences between objection as to the jurisdiction of the Court and admissibility of the claims.1 It was argued that in 1962 the legal interests or rights of the Applicants were considered as an issue in relation to the jurisdiction of the Court.2 Preliminary objections could relate to admissibility of the applicant's case and consequently the jurisdiction of the Court. On the other hand, some objections could concern only the jurisdiction of the Court without annulling the legal interest of the applicant. In the South West Africa Cases the third and fourth objections raised by the Respondent challenged the admissibility of the Applicants' claims and as a consequence the jurisdiction of the Court. It may be observed in illustration, that it is conceivable for a case to be thrown out of the Court due to lack of legal interest of the applicant, that is, due to inadmissibility of the claims, and a different applicant with better legal interests successfully to bring the same case against the same respondent. Objections to the jurisdiction of the Court based on the legal interest of the applicant, like the third objection in the South West Africa Cases, do not operate per se, but in conjunction with admissibility of the applicant's claims which is based on the legal interests or rights the applicant has in the case (ie in the merits). 1 South West Africa Cases, ICJ Reports, 1966, pp. 36-38; see also supra. p. 242, note 2. 2 Ibid., p. 37, para. 60; also p. 42 et seq.

In the South West Africa Cases the Court in 1962, correctly too, held that as far as the third objection was concerned, it had jurisdiction. It reached that conclusion by establishing that the Applicants have legal interests or rights in the dispute.1 The legal interests or rights of the Applicants did not only give the Court the jurisdiction to proceed with the case, but they also entitled the Applicants for their claims to be adjudicated upon. The legal interests or rights established thus gave the Court the jurisdiction to admit the claims of the Applicants, and equally the Applicants the right to get a judgment on their claims. The distinction the Court attempted in 1966 between question of jurisdiction and question of admissibility appears to have been based on the effects and not on the juridical bases. A question of jurisdiction pure and simple2 does not juridically concern the legal interest or rights of the applicant; whereas a question of admissibility is juridically based solely on the legal interests or rights of the applicant. However, the effects in both instances are to oust the jurisdittion of the Court, and also in case of admissibility to nullify the claims of the applicant. Thus a question of admissibility has dual effects, however, which are juridically not severable. The determination of an admissibility question as it relates to jurisdiction is not juridically possible without first determining the interest of the applicant in the claims. The flaw of the ruling of the Court in 1966 on this point lies in its attempt to differentiate admissibility as purely a question of jurisdiction and not also as an issue concerning the legal interests or rights of the applicant in his case. 1 Ibid., ICJ Reports 1962, pp. 343-344. 2 Eg, the first preliminary objection, see supra. p. 239, note 2.

The ruling of the Court in 1966 was thus in direct contradiction to what it had held in 1962 on the same point. The attempt to differentiate the 1962 Judgment was unsuccessful, because the Court in 1966 only attempted to deny its clearly stated ruling in 1962. This brings into question the applicability of the principle of res Judicata. (ii) Res Judicata Generally speaking, it can be said that the principle of res Judicata is an established principle of international law. The support for this generalisation could, of course, be found in the Statute and in the Rules of the Court. Article 59 of the Statute of the Court reads: "The decision of the Court has no binding force except between the parties and in respect of that particular case"; and Article 60 of the Statute of the Court states, inter alia, that "the judgment is final and without appeal". Article 81 of the Rules of the Court reads: "The judgment shall become binding on the parties on the day on which it is read in open Court".1 The language of these articles of the Statute and the Rules of the Court is clear and conclusive. The judgment of the International Court is obligatory and final as between the parties and it must be executed as it stands.2 The legal force of res udicata is, thus, not only 1 Rules of Court of 1972; it will be observed that Members of the United Nations have clear legal obligation to comply with decisions of the International Court in cases to which they are parties, see Article 94 (I) of the Charter of the UN, but contrast with infra Chapter VIII. 2 There are some qualifications, however, which should be borne in mind, these are provided for in the second part of Article 60 and by Article 61 of the Statute of the Court, in accordance to which the Court may be requested to interpret its judgment or to revise it, but these are not the issues here. founded on the fact that this is a principle of general application,1 but most significantly is founded on treaty. The juridical and the rational basis of the res iudicata was cogently stated by the Polish-German Mixed Arbitral Tribunal in the Tiedemann Case assfollows: "le Tribunal estime que, dans lintirt de la sicurite du droit, il importe que ce qul a Ati jug' soit, en principe, tenu pour difinitif".2 As far as it could be determined the International Court has not departed from this position. On the contrary, the jurisprudence of both World Courts confirms the contention that the res Judicata is a well established principle of international law. The International Court of Justice made an emphatic and far-reaching ruling on res judicata in the Corfu Channel (Compensation) Case in 1949. In that cise, when the Court was considering compensation, the Albanian Government once again raised the question of the jurisdiction of the Court which was decided upon in the first phase of the case; in response the Court stated: "As has been said above, the Albanian Government disputed the jurisdiction of the Court with regard to the assessment of damages. The Court may confine itself to stating that this jurisdiction was established by its judgment of April 9, 1949; that, in accordance with the Statute (Article 60), which, for the settlement of the present dispute, is binding upon the Albanian Government, that Judgment is final and without appeal, and that therefore the matter is res judicata."3 1 See Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals. London: Stevens, 1953, p. 355. 2 Tribunal arbitral mixte germano-polonais, Von Tiedemann c. Etat polonais (cause no. 261) (ler Novembre 1926), Recueil des decisions des Tribunaux Arbitraux Mixtes, Vol. 7, p. 704, at p. 706. 3 Corfu Channel Case, Judgment of 15 December 1949; ICJ Reports 1949, p. 244 at p. 248.

It should be pointed out that though the judgment of 9 April 1949 in the Corfu.Channel Case was on the merits, whereas in the South West Africa Cases it was a judgment on the preliminary objections, the significance in the illustration of the principle of res Judicata is, nevertheless, not minimized by that difference. The inconclusiveness of a judgment on preliminary objections is of the procedural nature and not of the substance of the legal points decided. The judgment on preliminary objection will not bind the Court on the issues of the merits; but that does not mean that on a point of law or fact considered, the ruling of the Court is inconclusive. It is conclusive and final as any other decision of the Court. It would be noted that the Court in the Corfu Channel Case refrained from basing itself on Article 36 (6) of the Statute which had been invoked by the British Government, instead it stressed Article 60 of the Statute.1 It appears that the Court preferred the issue of res judicata to remain a oquestion of procedure and not an issue of the competence of the Court.2 In the protracted proceedings of the Asylum Case the International Court came very near to saying that matters which have been decided upon cannot be raised even by a third party which was not a party to the proceedings, for the matter is res judicata. Cuba asked the Court to interpret the treaty which was considered in the dispute between Colombia and Peru, but the Court refrained from doing so since the matter was res Judicata.3 It would be observed, however, that this does not mean 1 Ibid., Pleadings, Vol. II, pp. 390, 400. 2 Shabtai Rosenne, The Law and Practice of the International Court, 2 vols., Leyden: Sijthoff, 1965, Vol. I, p. 625. 3 Haya de la Torre Case, Judgment of 13 June 1951; ICJ Reports 1951, p.71 at p. 77. parties took the Judgment of 1962 as final.1 It should be observed that decisions on preliminary objections do not prejudice the-decision on the merits;2 and that could not have been, despite the emphasis of the Court in 1966,3 the point at issue. However, answering the question posed it seems that the better view is that: the decision on the jurisdictional issue in the Court acquires the force of res judicata and attracts the obligation of compliance".4 The parties did not in their final submissions revert to the same issues, see, South West Africa Cases, ICJ Reports 1966, Dis. Op. of Judge Koretsky at p. 240; ibid., Judge Jessup, Dis. Op., at p. 326; see also Keith Highet (a member of the legal team for the Applicants) loc. cit., p. 155 et seq. The recurrence in the written statements, to which the Court seems heavily to rely, is not a proof that the Respondent considered the question of the legal interests of the Applicants as still outstanding. It was only a reflection of the practice of State to place on record their case in its entirety. Eg, the United Kingdom in the Cameroons Case detailed her case and did not just stop at the arguments on the preliminary objections, see Northern Cameroons, Pleadings. This practice may have prompted the thinking of the Court in the revision of the Rules of the Court intended to reduce the time taken, to include a provision whereby the Court could indicate the points on which it does not need further information. See Yearbook of ICJ (1972-73) Article 57 (1) of the Rules. 2 Article 67 (3) of the Rules of Court of 1972. 3 "The essential point is that a decision on a preliminary objection can never be preclusive of a matter appertaining to the merits, whether or not it has in fact been dealt with in connection with the preliminary objection". South West Africa Cases, ICJ Reports (1966) p. 37. 4 Shabtai Rosenne, op. cit., Vol. I, p. 438.

Notwithstanding the innuendo of the Court in 1966 on the finality of the judgment on preliminary objections,1 due to the baselessness of such unwarranted innuendo and more so due to what appears as misdirection by the Court as to the theoretical premises of such finality, the Judgment of 1962 has the force of res udicata within the meaning of the statutory provisions as well as the general principles of international law. With due deference, the Court failed to differentiate issues of legal substance, the jurisprudential issues, from pure procedural issues. The innuendo of the Court as to the finality of decisions on preliminary objections is conceived from and centred on the latter premises. It could not be aruged that on issues of legal substance the decision on the preliminary objections has no finality. It does not seem that there is any known legal principle either conventional or of general international law for the finality of the decision of the Court on points of legal substance in the preliminary objection to be doubted. The force of res judicata on substantial legal points in the preliminary objection is, thus, only circumscribed by jurisprudential considerations, applicable 1 The Court in 1966 stated: "In the first place, it is contended that the question of the Applicants' legal right or interest was settled by that 'Judgment and cannot now be reopened. As regards the issue of preclusion, the Court finds it unnecessary to pronounce on various issues which have been raised in this connection, such as whether a decision on a preliminary objection constitutes a res judicata in the proper sense of that term, - whether it ranks as a 'decision' for the purposes of Article 59 of the Court's Statute, or as 'final' within the meaning of Article 60". South West Africa Cases, ICJ Reports 1966, pp. 36-37; Cf. Judge Jessup "Under Article 60 of the Statute of the Court, this Judgment of 1962 is 'final and without appeal' ". Ibid., Dis. Op., p. 328. Subsequently, the International Court held: A jurisdictional decision is therefore unquestionably a constituent part of the case, viewed as a whole, and should, in principle, be regarded as being on a par with decisions on the merits as regards any right of appeal that may be given". Appeal Relating to the Jurisdiction of ICAO Council, Judgment, ICJ Reports 1972, p. 46, at p. 56. to any decision of the Court, to balance predictability and stability with development and equity. To strike such a balance the Court may, of course, depart from its previous decisions; and it is hoped for very cogent and clearly stated reasons. Preliminary objections operate to bar the Court from proceeding with the case, it is thus a plea in bar.1 When the Court is faced with preliminary objections it has either to give its decision on the preliminary objections or "declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character".2 It should be pointed out that if the Court decides that the preliminary objection does not have an exclusively preliminary character and thus should be joined to the merits, it should state so explicitly. For it would be unfair to the parties to be faced with preliminary objection(s) which they consider to have been disposed of.3 And more significantly, the applicant should be able to weigh the odds and, if necessary, to withdraw the case, than to take the risk of the case being decided against him on a preliminary objection joined to the merits. 1 Article 67 (3) of the Rules of Court (the 1972 Revision). 2 Ibid., Article 67 (7); It seems the Court generally would endeavour, in the light of the amendments of 1972, to dispose of with the preliminary objections as soon as it could. See, Eduardo Jimenez de Arechaga (Judge of the ICJ), "The Amendments to the Rules of Procedure of the International Court of Justice", AJIL 67 (1973), p. 1-22 at p. 11 et seq. As a result a new paragraph was inserted in Article 67 (62 of the 1946 Rules) which reads: "6. In order to enable the Court to determine its jurisdiction at the preliminary stage of the proceedings, the Court, whenever necessary may request the parties to argue all questions of law and fact, and to adduce all evidence, which bear on the issue". 3 The Court should not be accused of producing hat-tricks at the last moment. That may well be appropriate technique of advocacy in certain legal systems - but doubtful as to whether suitable for an International Court.

So far as could be determined, in the jurisprudence of the International Court there is no instance in which the Court joined the preliminary objections by implication. Invariably, the Court does, in fact, state the reason or reasons for joining the preliminary objections to the merits. These could be that: the issues raised in the objections are closely interwoven with the merits to permit adjudication on the one without prejudicing the other; the evidence submitted to the Court is not sufficient to decide on the objection and it hopes to get more 2 evidence from the arguments on the merits; an understanding regarding the joinder had been reached between the parties;3 to join the preliminary objections to the merits would be in the interest of good administration of justice;4 and, a plea for joinder was submitted as an alternative.5 1 Case concerning the Administration of the Prince von Pless, (Preliminary Objections) Order, PCIJ (1933) Series A/B No. 52, p. 15 et seq.; Case concerning right of passage over Indian territory (Preliminary Objections) Judgment of November 26, 1957, ICJ Reports 1957, p. 125 at p. 150; South West Africa Cases, ICJ Reports (1962), Joint Dissenting Opinion of Judges Spender and Fitzmaurice, p. 66. 2 Case concerning right of passage over Indian territory (Preliminary Objections) Judgment of 26 November 1957: ICJ Reports 1957, p. 125, at pp. 151-152. 3 Case of certain Norwegian Loans, Order of 28 September 1956: ICJ Reports 1956, p. 73 at p. 74. 4 Barcelona Traction, Light and Power Company Limited, Preliminary Objections, Judgment, ICJ Reports 1964, p. 6 at p. 43. 5 Ibid., p. 41; It is likely that despite the amendments to the Rules of Court in 197Z, these reasons may continue to influence the decisions of the Court in preliminary objection proceedings; at any rate they were relevant in the South West Africa Cases.

None of the preliminary objections in the South West Africa Cases were joined to the merits for any of the above stated reasons -or any others. In fact, it should be emphasized that the Court found itself possessed of sufficient information regarding the preliminary objections and thus disposed of all of them in its judgment of 21 December 1962. It could not be contended that the Court in the judgment of 21 December 1962 did not direct its mind to the question of the legal interests or rights of the Applicants.1 Neither could it be argued that the Court did not have sufficient information, for by pronouncing upon that objection shows that the Court considered itself to be possessed of sufficient information, otherwise it would have joined the third objection to the merits. Also the Court did not feel constrained by the third preliminary objection being closely interwoven with the merits to be joined thereto.2 It is significant to note, in relation to the res judicata, that the Court in its Judgment of 1966 did not only rely on the reasoning developed in the dissenting opinions3 appended to the Judgment of 1962, but it equally relied on the argument of the Respondent presented at the preliminary objections' stage.4 It appears to be well established by the jurisprudence of the International Court that the substance and 1 See infra p: 260, note 3. 2 In the post 1972 revision of the Rules of Court, the Court may not state any reason for joining the objection to the merits, except the broad one stated in the new Article 67 (7) of the Rules of Court. 3 See, South West Africa Cases, ICJ Reports 1966 Dissenting Opinion of Judge Padilla Ncrvo at p. 447; Geortes Abi-Saab, Les Exceptions preliminaires dans la procedure de la Cour internationale, op. cit. at p. 139. 4 South West Africa Cases, Pleadings, Vol. I, p. 376 et seq.

260- scope of the binding force of a judgment, which has the force of the res Judicata, is basically determined by the pleadings and particularly by the submissions of the parties.1 And it is not only the operative part of the judgment which has the force of the res judicata but also the reasoning of the Court. In the South West Africa Cases, Preliminary Objections, the Court rejected the Respondent's interpretations2 of Article 7 of the Mandate for South West Africa, and consequently rejected the third preliminary objection. The Court, for example, stated: "For the manifest scope and purport of the provisions of this Article indicate that the Members of the League were understood to have a legal right or interest in the observance by the Mandatory of its obligations both toward the inhabitants of the Mandated Territory, and toward the League of Nations and its Members".3 And it further emphasized, in response to the narrow and restricted interpretation of Article 7 of the Mandate for South West Africa urged by the Respondent, that "protection of the material interests of the Members or their nationals is of course included within its compass, but the well-being and development of the inhabitants of the Mandated territory are not less important".4 As can be noticed, the Court considered the legal interests or rights of the Applicants from the two categories on which the 1966 Judgment was to be based. Thus it could not be reasonably and legally maintained that the Court in 1962 did not consider the legal interests or rights of the Applicants as they relate to the welfare and development of the inhabitants; and the decision of the Court on that issue of 1962 has the force of res judicata. 1 See, Rosenne, op. cit., Vol. II, p. 601 et seq.; Dissenting Opinion of Judge Koretsky, South West Africa Cases, ICJ Reports 1966 at p. 241. 2 Ibid., Pleadings Vol. I, p. 376 et seq.; Vol. VII, p. 156. 3 Ibid., ICJ Reports 1962, p. 343. 4 Ibid., p. 344.

(iii) The scope and nature of the legal interest or the right The reasoning and the decision of the Court on the question of the legal interests or rights of the Applicants in the South West Africa Cases, Second Phase, did not only contradict its ruling on the.same point in the same cases, but was also contradictory to the jurisprudence it, and its predecessor had developed; and most significantly it was a judgment that flew in the face of the historical background to the establishment of the mandates system as well as the contemporaneous documentary evidence. Above all, it was a decision contrary to the .purpose and objectives of the mandates system. Up to 1966 and the Second Phase of the South West Africa Cases the judicial pronouncements took the view that judicial supervision was a part of the international supervision of the 'sacred trust'. The first judicial pronouncement to this effect was in 1924. Judge Oda in his dissenting opinion in the Mavrommatis Case stated that "under the Mandate, in addition to the direct supervision of the Council of the League of Nations (Articles 24 and 25) provision is made for indirect supervision by the Court; but the latter may only be exercised at the request of a Member of the League of Nations (Article 16)".1 Although this was a pronouncement in a dissenting opinion, its legal significance lies in the fact that it was not contradicted in the judgment, or in the opinions. In fact, the same view received support in another dissenting opinion.2 1 The Mavrommatis Palestine Concessions, PCIJ Series A, No. 2 (1924) at p. 86. Article 26 of the Mandate for Palestine was exactly the same as Article 7 of the Mandate for South West Africa. 2 Ibid., Dissenting Opinion of Judge Bustamante, at p. 76.

The notion of judicial supervision of the #sacred trust' of the mandates system received further explicit Judicial cognition by the present Court. In the Advisory Opinion on the International Status of South West Africa the International Court ruled unanimously that any dispute relating to the interpretation or the application of the provisions of the Mandate between a Member State and the Mandatory State should be referred to the Court.1 And Judge McNair made the point abundantly clear, he stated both the rationale and the substance of the notion of judicial supervision, in the following manner: "Although there is no longer any League to supervise the exercise of the Mandate, it would be an error to think that there is no control over the Mandatory. Every State which was a Member of the League at the time of its dissolution still has a legal interest in the proper exercise of the Mandate. The Mandate provides two kinds of machinery for its supervision - Judicial, by means of the right of any Member of the League under Article 7 to bring the Mandatory compulsorily before the Permanent Court, and administrative, by means of annual reports and their examination by the Permanent Mandates Commission of the League". It is significant to note that no other member of the Court dissented from this reasoning of Judge McNair. Indeed this reasoning, as will be shown below, was in line with the legal thinking at the time of the establishment of the mandates system. The notion of judicial supervision upheld in the advisory opinion on the International Status of South West Africa and, in particular, in the opinions appended thereto, was in consonance with the views of international lawyers during the operation of 1 ICJ Reports 1950 at p. 138. Judges McNair and Read dissented on different points, see ibid., pp. 146 and 164 resp., and see further the next note. 2 Ibid., at p. 158. 3 On the contrary Judge Read expressed similar views, ibid. p. 165.

1. the mandates system.1 The notion of judicial supervision of the mandates system was also upheld in a study by the United Nations.2 As stated above,-the International Court of Justice when the issue 3 of judicial supervision was for the first and only occasion specifically argued, it upheld it. It was thus from this jurisprudence of international tribunals that the Judgment of 1966 dissented. Much of the argumentations and assertions rejected by the Court in 4 5 1966 as being "particularly unimaginable", or as "unreasonable", or as simply "drafting caprice" 6 could be shown by contemporaneous documentary evidence to be well founded and reasonable. Indeed, the whole edifice of legal reasonableness of the Court in 1966 crumbles down in the face of contemporaneous archival evidence. 1 Eg, Quincy Wright stated: "Every member of the League can regard its rights as infringed by every violation by the mandatory of its duties under the mandate, even those primarily for the benefit of natives, and can make representations which if not effective will precipitate a dispute referable to the Permanent Court of International Justice if negotiation fails to settle it." Mandates under the League of Nations. Chicago: The University of Chicago Press, 1930, at p. 475. See also, Norman Bentwich, "Le systeme des mandats", Vol. 29 Hague Recueil des Cours (1929-IV), p. 119, at p. 180; James C. Hales, "Some Legal Aspects of the Mandate System: Sovereignty - Nationality - Termination and Transfer", Transactions of the Grotius Society 23 (1937) p. 85 at p. 122; A.D. McNair, "Mandates" Cambridge Law Journal 3 (1928) p. 149-160. 2 See UN Doc. A/3625 (1957). 3 In 1966 the question of legal interests of the Applicants, and thus the notion of judicial supervision, was not raised again either by the Court or by any of the Parties; see, Keith Highet, loc. cit. p. 155. 4 South West Africa Cases, ICJ Reports 1966 at p. 30. 5 Ibid. 6 Ibid., p. 44.

The main point of the ruling of the Court in the South West Africa Cases, Second Phase, was the lack of legal interests or rightS of the Applicants.1 The Court reached that decision not because the Applicants failed factually or theoretically to establish their legal interests in the case, for the point was not argued again. But the Court considered as theoretically "unimaginable" and, therefore, despite the clear and unambiguous language of the adjudicatory clause, it held that it was not provided for. The decision of the Court in 1966 on the issue of the legal interests or rights of the Applicants was based on two different propositions, though complementary and mutually corroborative. First, the Court attempted to create a broad and general principle, of course as indicated above, from purely reasonable conjectures, to the effect that the notion of judicial supervision was not envisaged and was thus not provided for in the mandates system. Secondly, and as a deduction from the first, it held that the Members of the League did not have legal interests or rights in the implementation of the principle of 'sacred trust' of the mandates system. The first proposition was the result of a conservative and formalistic interpretation of the provisions of the Mandate and those of the Covenant of the League; based on the ordinary and natural meaning of the words, without any regard to the purpose and objectives of the regime. Whereas, in the second proposition the ordinary and natural meaning of the adjudicatory clause was ignored and reliance was placed on reasonable assumptions and probable consequence. The main question to consider is whether the dual-pronged interpretation of the Court can be supported by the contemporaneous archival evidence. We will thus, in a reverse order, subject these two propositions of the Court relating to 1 Ibid. the legal interests or rights of the Applicants to a close examination in the light of the contemporaneous documentary evidence. As could be expected in a new international regime, official of the League of Nations from the very onset had not unfrequently to interpret the various provisions of the Mandates, and the views of Dr. Van Hamel, the Director of the Legal Section of the League of Nations, featured prominently. It is thus significant to the interpretation of the clauses of the Mandates to bear in mind the contemporaneous and official legal opinions.1 Therefore, we will reproduce in extenso from the commnents of Dr. Van Hamel. When considering whether the second paragraph of the adjudicatory clause of the East African Mandate2 should be retained or not, he stated: "If I remember rightly, I can give some contribution to the historical explanation of the variants in the drafts. In the beginning of my work in the Secretariat of the League of Nations, I met the Members of the Milner Commission, who were then meeting in our offices at Sunderland House. I think it was Lord Robert Cecil, who discussed with me the question whether there should not be included a clause saying that 'subjects or citizens of States could also bring claims for infractions before the Court of Justice.' "Our conclusion then was that the first paragraph, which was referring to the Court only disputes relating to the interpretation of the provisions of the Mandates, was rather narrow, as it excluded the broader category of disputes concerning the application and execution. "I also made it clear, however, to Lord Robert Cecil, that the paragraph giving the right of action to private citizens or private organisations would go rather against the 1 Not that these rank as judicial opinion; but could be relied upon to be the correct reflection of the intention of the parties. The Court had an occasion to observe that "the meaning of a judicial notion in a historical context, must be sought by reference to the way in which that notion was understood in that context", Rights of US Nationals in Morocco, ICJ Reports 1952, p. 189. 2 What the Court in 1966 dismissed as of no legal significance, but a mere "drafting caprice", and which the Joint Dissenting Opinion of Judges Spender and Fitzmaurice brushed aside as "drafting quirk", South West Africa Cases, ICJ Reports 1966, p. 44; ibid. 1962 p. 560 resp. the traditional nature of an International Court of Justice, which only knows Governments as parties. "The result of the discussions and of my advices has been: a) That the first clause was extended, from disputes relating to the interpretation, also to disputes relating to the application of the provisions, and b) That the clause regarding the rights of private subjects was altered into the text which now occurs in the British East African Mandate. "The clause regarding the right of action for the interests of private subjects would have been very recommendable in case the first paragraph would have continued to relate only to disputes on interpretation. As a matter of fact, the second paragraph would then have been very essential. As, however, the term 'application' was inserted in the first paragraph, there was much less necessity, if any, for the other paragraph. "My personal opinion is that the paragraph contained in the British East African Mandate, giving the right to States to bring up claims on behalf of their nationals, is, at present, not necessary. This kind of action will be covered by the actions relating to the 'interpretation or the application of the provisions of the Mandate' named in the first paragraph. "Whilst entirely agreeing with Commandatore Anzilotti on this point, I cannot agree on the other point, that it should be dangerous to maintain the paragraph in the East African Mandate. There is no practical danger of the interpretation of the clause in the other Mandates being narrowed by the presence of the second clause in one of the Mandates. Every Mandate will be applied on its own merits, and I do not expect that, at any time, a formalistic and legalistic method of interpretation will be applied, which right have the effect that Commandatore Anzilotti fears. To my mind, there is little danger that in the case of documents of a political, international nature, like the Mandates, the rule 'qui de uno dicit de altero negat', would easily find applications" I Archives of the League of Notions 1919-1927, 1/12093/161, (A note by Dr. Van Hamel to flappard) dated 22 April 1921.

It is abundantly clear from the contemporaneous legal thinking that the two types of legal interests - the 'conduct' and the 'spet:ial' according to the categorisation of the Court in 1966, were both con0sidered as referrable to the International Court for adjudication and, therefore, specifically provided for. Statal interests related basically to the implementation of the objectives of the mandates system and these were intangible. The Court in 1966 did admit that legal interests of states do not necessarily have to be tangible. It is equally irrelevant that the intangible legal interests are generally owed, a logical conclusion to which the Court did not allude in 1966. The jurisprudence of the International Court does recognize generalized intangible legal interests.2 It is submitted that it was the realization for the legal protection of such general legal interests that judicial protection was provided for in the treaties on minorities; and we would submit in the mandates system as well. The emphasis on the principle of "actio popularis" of the Roman Law both in a Dissenting Opinion in 19623 and in the Judgment of 19664 was, thus, on close examination irrelevant. For we are here concerned with a treaty, and it could not be seriously asserted that the parties could not provide for judicial protection" of interests of general nature. 1 South West Africa Cases, ICJ Reports 1966, p. 32. This fact was equally recognized by those judges who dissented, for example, Judge Jessup stated: "International law has long recognized that States may have legal interests in matters which do not affect their financial, economic or other 'material' or say 'physical' or 'tangible' interest". Ibid., Dis. Op. p. 425. 2 Reservations to the Convention on Genocide. Advisory Opinion: ICJ Reports 1951, p. 15. 3 South West Africa Cases, ICJ Reports 1962, Dissenting Opinion of President Winiarski, at p. 452. 4 Ibid., 1966, p. 47.

It may further be observed that at that time States' participation in commercial activities was, perhaps outside the Soviet Union, hardly known; and missionary work had long become the prerogative of private organisations. Yet the dichotomy between the legal interests of States and the legal interests of the nationals was clearly perceived and legally provided for. Therefore, the clearly identified and recognized legal interests of States in the mandates system could not have referred only to the provisions concerning commercial or religious interests. On the contrary, the legal interests of States concerned basically the implementation of the 'sacred trust' of the mandates system. In the light of the contemporaneous archival evidence the conclusion of the Court in 1966 on this point was manifestedly untenable. For example, the Court stated: "Accordingly, viewing the matter in the light of thk relevant texts and instruments, and having regard to the structure of the League, within the framework of which the mandates system functioned, the Court considers that even in the time of the League, even as members of the League when that organisation still existed, the Applicants did not, in their individual capacity as states, possess any separate self contained right which they could assert independently of, or additional to, the right of the League, in the pursuit of its collective, institutional activity, to require the due performance of the Mandate in discharge of the 'sacred trust' "l On the contrary, as is shown by the comments of those who were actually parties to the thinking and the drafting of the relevant provisions, the first paragraph of the adjudicatory clause originally related only to the statal legal interests in the implementation of the 'sacred trust' of the mandates system. The special interests of the nationals were specifically provided for in the second paragraph. The first paragraph I Ibid., pp. 28-29, para. 33; and for a more elaborate argument on the same conclusion, in fact from which the Judgment of 1966 was taken, see the Joint Dissenting Opinion of Judges Spender and Fitzmaurice, ibid., 1962, pp. 558-559. was only enlarged to encompass the special interests of the nationals of the Member States.1 It could not thus be seriously contended- that the original statal interests were thereby expurged. On the contrary, it was only the scope that was broadened, in fact properly categorized, to include implementation of both statal interests as well as special interests. The substance of the legal interests of the Member States was embodied in the whole of the regime.2 There was in connection with the administration of dependent peoples and territories a certain 'wrong'3 which the States after the First World War were determined to eradicate. This fact was realized and referred to by a municipal court of a Mandatory State. "I think it is not right for the courts of the Mandatory Power to hold that the very evil which it was the object of the mandatory system to prevent, namely, 1 The second paragraph thus became tautology and was deleted, except in the Tanganyika Mandate where it was retained by mistake. 2 The legal interest or right of the Members of the League stem from Article 22 of the Covenant of the League as well as from other provisions of the Mandates; see South West Africa Cases, ICJ Reports 1966, Dissenting Opinion of Wellington Koo, p. 219; ibid., Dis. Op. of Judge Tanaka at p. 262. 3 See supra. Chapter I; The Court thus missed the point entirely, when it considered (South West Africa, ICJ Reports 1966, p. 42, para. 73) that the acquisition of the legal interests or rights by the Members of the League was derived from the adjudication clause. The point is that even in the absence of the adjudication clause, the Members of the League of Nations acquired legal interests in the implementation of the mandatcs system, the question then will be whether such interests will be referrable to the Court. It seems that on the whole the Joint Dissenting Opinion of Judges Spender and Fitzmaurice in 1962 started off from a ddbious theoretical premises. It asserted that in 1919 the creation of the mandates system had nothing sacred about it, for there was nothing bad from which the mandated territories could be protected from. This general position of the two Judges emerges from close reading of the Joint Dissenting Opinion, ibid., 1962, pp. 518-525. acquisition by means of cessation or annexation, has been achieved by the terms of the mandate." That was one type of the evil, and nbt the only one, the other type related to the welfare of the inhabitants of the man-. dated territories. The States decided to eradicate these evils by the establishment of the mandates system, and to that effect they entered into a treaty. Thus, it could not be realistically maintained that the States which set up such a system to prevent certain 'wrongs' have no legal interests in the implementation of such a system. Admittedly, "the concept of a 'legal interest' was extremely ill-defined in international law",2 nevertheless, it is "felt strongly that all parties to a multilateral treaty had the same interest with regard to the observance of a treaty, so long as it was in force".3 A publicist during the era of the League of Nations commenting on an international agreement, not very much dissimilar with the Mandates, the Berlin Act of 1885, stated that "States conclude multilateral treaties not only in order to secure for themselves concrete mutual advantages in the form of tangible give and take, 1 Ffrost v Stevenson, Annual Digest of Public International Law Cases (1935-1937), (Australia High Court, 1937) p. 98, at p. 109, per Evatt J. 2 Yearbook of International Law Commission, 1966, Vol. I, part I, ILC, 831st Mtg., 14 January 1966, at p. 60, per Shabtai Rosenne. 3 Ibid., And another commentator observed: "On the contrary, there is a great deal of evidence that there was a recognition of the rights of States, in the general interest to resort to the Court for an authoritative interpretation of the meaning of obligations which States had assumed for the protection of workers, minorities, and dependent peoples". W.A. McKean, "Legal right or interest" in the South West Africa Cases: A Critical Comment", Australia Yearbook of International Law 2 (1966) p. 135-141 at p. 140; And it was stated in the ILC meeting that "if a multilateral treaty was violated by any one of the parties, that breach might be said to affect the interests of all the parties, for being a party to a multilateral treaty a State had an interest in the observance of the treaty by all the parties." Yearbook of ICL 1966, Vol. 1, part I, 831st Mtg., 14 January 1966, at p. 62, per Yasseen. but also in order to protect general interests of an economic, political or humanitarian nature, by means of obligations the uniformity and general observance of which are of the essence of the agreement".1 The Mandate for South West Africa, like the other similar instruments, provided for a certain regime regulating and directing the welfare and political development of the inhabitants of certain dependent territories in Africa. In that development the Applicants definitely had legal interest.2 And the International Court subsequent to the South West Africa Cases stated: "An essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-a-vis another state in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes". 3 In the light of the contemporaneous legal thinking and the foregoing analysis the reasoning and the conclusion of the Court on this point is, therefore, untenable; not only as an affront to the actual text of Article 7 of the Mandate, contrary to the contemporaneous I A note on "The Chinn Case" by H.L., BYIL (1935) p. 162, at p. 165. 2 The mandate agreements provided for a certain regime regulating the political development in Africa, among other regions, and in that development the Applicants, since after 1960, the year of decolonisation, definitely had legal interest. Similar views were expressed by Judge Anzilotti, in his opinion in the Case of Customs Regime between Germany and Austria. Advisory Opinion of 5 September 1931, Series A/B No. 41, p. 55 at p. 64 et seq. 3 Case concerning the Barcelona Traction, Light and Power Company Limited, (New Application: 1962) Judgment of 5 February 1970, ICJ Reports 1970 at p. 32.

ZIZ- documentary evidence,1 but also theoretically defective. The Mandatory State was contemporaneously viewed "as the-Mandatory of the Community of Nations, and derives its trust from that community",2 and thus had limited and prescribed rights, for the mandated territories were regarded as "personae miserabiles, whose welfare is a concern of the whole family of Nations". The contemporaneous legal thinking which limits the rights of the Mandatory State to the purpose and objectives of the mandates system supports our conclusion that in the context of the phenomenon of decolonisation the mandates system was the forerunner. Generally, therefore, the mandates system pointed towards decolonisation, resulting from the exercise of the right of the inhabitants to self-determination; and not towards colonisation. For this reason, the judgment of 1966 which denied the Member States legal interests or rights in the implementation of the mandates system, and thus made it possible for the mandated territory to be converted into a colony, is a misconception and a distortion of the regime created.4 I Admittedly the International Court did not have the benefit of archival research findings. 2 Archives of the League of Nations, 1919-1927. 1/661/161. (A Note by Dr. Van Hamel, the Director of the Legal Section of the League, to the Secretary-General of the League of Nations) dated 8 August 1919, on "Position of the League of Nations with regard to the Colonial Mandates mentioned in Article 22 of the Covenant". It should be noted that these views were expressed when the preambles to the mandate agreements were being considered. 3 Ibid. 4 One commentator characterized the 1966 Judgment in the following manner: "In view of all that had gone before, this almost suggests that the judges responsible for drafting the judgment did so while visiting cloud-cuckoo-land". L.C. Green, "South West Africa and the World Court", International Journal 22 (1967) p. 39-67 at p. 60.

Furthermore, there is the important documentary evidence relating to the changes made by the Council of the League to the adjudicatory clause in support of our contention. The Court completely misinterpreted the reasons for the changes made. When the draft instruments for Mandates 'B' and 'C' were submitted to the Council of the League the adjudicatory clause was worded, in parts, as follows: "If any dispute whatever should arise between the members of the League relating to 0.." 1 In order that "Members of the League other than the Mandatory could not be forced against their will to submit their differences to the Permanent Court of International Justice"2 this clause was changed to: "The Mandatory agrees that any dispute whatever which may arise between himself and another Member of the League of Nations relating to ..." 3 This shows clearly that the Member States were considered to have justifiable legal interests in the implementation of the mandate agreements. It was these broad legal interests in the 'performance provisions' of the Mandates which would have led to legal proceedings between two or more non-mandatory states. The conclusion of the Court in 1966 on this point is unconvincing and non sequitur. The Court on the one hand ruled that Member States could only institute proceedings relating to 'special interests' provisions; yet on the other, and in 1 South West Africa Cases, ICJ Reorts 1966, p. 365. 2 Reasons for the alteration given by Viscount Ishii when submitting the draft mandates to the Council of the League. League of Nations, Official Journal 1922, 3rd Year, No. 8 (Part II), Annex 374b, p. 849. "Draft B Mandates" at p. 854. 3 Mandate for South West Africa, Article 7, paragraph 2, see eg, South West Africa, ICJ Reports 1966, p. 37. the same breath, held that Member States were not "parties" 1 to anything, therefore, they did not have legal interests in the implementition of the mandate agreements.2 The contradiction is compounded further by the reasoning of the Court that the adjudicatory clause was changed because Member States could not be compelled against their will. But if they were not 'parties' they could not be compelled to anything. The contemporaneous legal opinion given soon after the drafts for the 'B' and 'C' categories were completed emphasized the fact that these mandates agreements should reflect exactly the positions in which the League, its members, the Principal Allied and Associated Powers, and the mandatory States should be placed towards each other, because the mandates system "will form a new phenomenon in international law."3 Thus the main point that concerned the legal thinking at that time was how the exact relationship of the parties was to be formulated. The fact that the Member States would be parties was not doubted. The main task for the supervision of the mandates system fell on the League of Nations, through its Council as aided by the Permanent Mandates Commission. But it is important to note that this did not exclude the Member States. The circular reasoning of the Court on this point - the change made in the adjudicatory clause in the Council stems from the highly formalistic and narrow position the Court adopted which excluded entirely the Member States from any part in the establishment of the mandates system. The Court in 1966, for example, stated: 1 See Infra. p.275, note Zcf. .A. McKean, loc. cit., p. 141. 2 South West Africa Cases, ICJ Reports 1966, p. 27. 3 Archives of the League of Nations, 1919-1927, i/661/161. (A Note by Dr. Van Hamel to the Secretary-General of the League of Nations) titled: "Position of the League of Nations with regard to the Colonial mandates mentioned in Article 22 of the Covenant".

L ~ "There is however some evidence in the record to indicate that in the context of the mandates the allusion to agreement on the part of the 'Members of the League' was re- garded at the time as referring only to the five Principal Allied and Associated Powers engaged in the drafting; but this of course could only lend emphasis to the view that the Members of the League generally were not considered as having any direct concern with the setting up of the various mandates ...".2 This was thus the reasoning on which the Court built its case that not only that the reference to "the members of the League" did not mean what it said, but equally the conclusion, despite documentary evidence to the contrary, that the change inserted in the mandate drafts by the Council of the League was of no significance since the Members of the League did not have interests in the system any way. Hence the final deduction was made that the Member States, even during the time of the League, did not have legal interests or rights in the 'implementation provisions' of the mandate agreements. The contemporaneous documentary evidence shows that this position of the Court was false. The Director of the Legal Section of the League of Nations in August 1919 comnenting on the then recently concluded draft provisions of the 'B' and the 'C' mandates, stated, inter alia: "It is evident that by the expression 'the Members of the League', is meant all the Members, and not only the Principal Allied and Associated Powers. The first drafting of the Covenant had the wording: 'the High Contracting Powers', which corroborates the view that all the 1 This claimed record is not indicated anywhere in the judgment; in fact the archival findings point to the opposite, see infra p. 276, note 1. 2 South West Africa Cases, ICJ Reports 1966, pp. 26-27, para. 28. signatories of the Covenant are included in the provision".I This categorical contemporaneous statement2 nullifies entirely the reasoning of the Court on this point. Consequently, the Court's first limb of its case, namely, that the Member States did not have legal interests or rights in the "conduct" provisions, falls to the ground. The reasoning and the conclusion of the Court on the above two points, forming the first limb of its ruling on the legal interests or rights of the Applicants, were by and large buoyed up by the theoretical proposition it propounded with regard to the notion of judicial supervision, the second limb of its case. 1 Archives of the League of Nations, 1919-1927, 1/661/161. (A Note by Dr. Van Hamel to the Secretary-General) Dr. Van Hamel made the following conclusions: "1. The Clauses of the Mandate will have to be left to the final decision of the Council of the League, if no special Convention between all the Members of the League is previously agreed upon. 2. The Preamble of the Mandates should not express the idea that the Mandate is conferred by the Principal Allied and Associated Powers. 3. The Mandate mentioned in the Preamble should be pointed out as emanating from the League of Nations. 4. The Preamble should further state that the specially named Mandatory Power has been entrusted with the tutelage of a special territory 'by decision of the Principal Allied and Associated Powers'. 5. It should be clearly expressed that the principles in accordance with which the Mandate will have to be executed have been determined either by the Members of the League, in a special Convention, or by the Council of the League." Ibid., p. 5. 2 We must emphasize that the views expressed by the Director of the Legal Section of the League were supported by other senior officials of the League of Nations. For example, the Secretary-General of the League of Nations minuted the document in question as follows: "I am in entire accord with Dr. Van Hamel's views and conclusions". Ibid. Another senior official of the League, P.J. Baker expressed agreement with Dr. Van Hamel, see Archives of the League of Nations, 1919-1927, 1/2211/161. " 'B' Mandates relating to the British area of Ex-Germany East Africa".

Despite the consistent jurisprudence of the International Court in support of the notion of judicial supervision in the mandates system.1 However, in 1966 the Court held that judicial supervision was not anti2 4 cipated and thus was not provided for. The Court in, language which negates the purpose and objectives of the mandates system, indeed a clear negation of the principles of self-determination and of non-annexation so tenaciously defended at and finally upheld by the Paris Peace Conference in 1919, it stated that "the plain fact is that, in relation to the 'conduct' provisions of the mandates, it was never the intention that the Council should be able to impose its views on the various mandatories ... It was never intended that the views of the Court should be ascertained in a manner binding on mandatories, or that mandatories should be answerable to individual League members as such in respect of the conduct provisions of the mandates".3 The Court, thus, unmistakably delivered a mandated territory to the absolutely unfettered discretion of the mandatory power. The ddministration of a mandated territory was, to all intents and purposes, turned by this reasoning and conclusion of the Court into the same category as ordinary colony. It will be recalled that the Paris Peace Conference purposely excluded the realization of 4 such a situation. The Court erred on this point. Not only because its reasoning and conclusion on this point were contrary to the historical background to the establishment of the mandates system as well as against the provisions of the Covenant and the Mandate; but they also flew in the 1 See supra.p. 261, notes 1 & 2, p. 262, notes 1-3, p. 263, note 1. 2 South West Africa Cases, ICJ Reports 1966, p. 46. 3 Ibid., para. 86. 4 See supra. Chapter I and infra. Chapter VII. face of the contemporaneous legal thinking. The archival documents of the League of Nations show beyond doubt that the ruling of the Court on this point was legally untenable.1 The Director of the Legal Section of the League in a note to the Secretary-General of the League on this subject, after quoting the adjudicatory clause, stated: "Would it not be advisable to consider that some time shall elapse before the Permanent Court comes into existence, and that, for this period of transition, the possibility of judicial settlement should be provided for by the Mandate? "The same line has been taken by other provisions in the Peace Treaties.2 "I would therefore suggest, if amendments to the Mandates are still possible to provide for possible disputes in the 3 transition period by an additional stipulation to be made". 1 Admittedly the International Court of Justice did not have the benefit of the research findings into the Archives of the League of Nations. 2 Eg, Article 426 (Labour Conference) stated "pending the creation of a Permanent Court disputes will be referred to a Tribunal of three persons appointed by the Council". See also, Article 336 of the International River Provisions; Article 38 of the International Air Convention. 3 Archives of the League of Nations, 1919-1927, 1/662/161. " "Draft of Colonial Mandates: Court of Justice. Suggestion that an amendment in the Mandate should be made in order to provide for the judicial settlement of disputes in the transition period before the Court of International Justice can be established". Dated 6 August 1919. However, with the Mandates Commission (the Milner Commission) having completed its work it would not have been easy to amend the mandates drafts. Secondly, there was no delay in the establishment of the Permanent Court of International Justice. The Assembly of the League approved the Statute of the Permanent Court in December 1920. See League of Nations, First Assembly, 21st Plenary Mtg., 13 December 1920, p. 478 at p. 500. It was also generally felt that, unlike the minority questions the mandates system would not very early in its life lead to serious legal disputes, except probably complaints from "enthusiasts who are flushed with the idea of enjoying a kind of supernatural protection". Archives of the League of Nations, 1919-1927, 1/662/161.

Thus, contrary to the 'reasonable assumption' of the Court, judicial settlement of any possible dispute relating to the mandates system was considered as of great significance to the operation of the system. It was for this reason that it was considered important to provide for judicial settlement as soon as the system became operational.1 It cannot be realistically contended that the need for judicial settlement was considered only for disputes, in the case of the 'C' mandates, relating to the freedom of missionaries. On the contrary, the concern was for judicial supervision.2 And this was one of the main distinguishing features from the ordinary colonies. From the foregoing analysis as supported by archival evidence of the League of Nations the Judgment of the International Court of Justice in the South West Africa Cases, Second Phase, cannot be considered as legally sound. On both the major propositions of the Court on which its decision was based, -e have been able to show that the reasoning of the Court was entirely contrary to the contemporaneous legal thinking. 1 In support of the views expressed by the Director of the Legal Section, P.J. Baker minuted: 'I think it (temporary measure for judicial settlement) could be required if the first meeting of the Assembly breaks up without having established the Permanent Court of International Justice". Ibid. 2 Ibid. A note attached by R.B.T.

To explain the anomaly that would be created if a recalcitrant Mandatory Power, as the case proved to be with regard to South Africa, refused to enter into an agreement with the United Nations to place a mandated territory under the trusteeship, the two judges propounded what may be termed 'the theory of parallel provisions'.1 They argued: "The San Francisco Conference did, on the other hand ... by means of Chapter XI of the Charter (and more particularly by Article 73 ...) create a position which ... involved that any mandated territory not placed under trusteeship must be dealt with by the Mandatory as a non-self- ,governing territory under Article 73 of the Charter ..." 2 This means that if a Mandatory Power refuses, for any reason whatsoever, to enter into an agreement to place the mandated territory under the trusteeship system, even with the intention ultimately to annex the mandated territory, then since after all a mandated territory is a nonself-governing territory, it will fall under the provisions of Article 73 of the Charter of the United Nations. And there is nothing legally the international community could do. The Court in 1966 seems to have strengthened this view by rejecting the notion of judicial supervision. and the legal interests or rights of the Members of the League in the operation of the mandates. The combined effect of these views is that, so long as missionary work is not interfered with, the only one applicable to the class 'C' mandates, a mandated territory is not different from ordinary colonies. And most strikingly the advanced system of international supervision become simply inoperational. 1 We should point out that the recent South African theory of "parallelism" of race relations in South Africa, has no connection with what the two judges attempted to propound. On "parallelism" in South Africa, see N.J. Rhoodie, "The Coloured Policy of South Africa: Parallelism as a Socio- Political Device to Regulate White Coloured Integration", African Affairs 72 (1973) pp. 46-56. 2 South West Africa Cases, ICJ Reports 1962, p. 533. Even South Africa did not see it as such, in fact, at no point did South Africa accept even the provisions for ordinary colonies, see supra. Chapter V.

£.0L The two judges came to this conclusion because the San Francisco Conference (the United Nations) or the League of Nations did not provide 1 for a mandated territory that remained a mandated territory. The entire proposition of Judges Spender and Fitzmaurice is based on this point.2 As the decision of the Court in 1966 was greatly influenced by the Joint Dissenting Opinions of Spender and Fitzmaurice of 1962, that view was thus also the basis of the decision of the Court in 1966. The reasoning of the two judges is partly derived from the affinity between Article 22 of the Covenant and Article 73 of the Charter.3 And support is found4 in the arguments presented by the United States and the Philippines at the International Court in the advisory opinion on the International 5 Status of South West Africa. The two judges missed one vital point. The principles of decolonisation developed after the First World War centred around the principle of international accountability of the administration of the territories 6 which were placed under the mandates system, and by 1945 at the San Francisco Conference it had become a developing process of decolonisation. The point was emphasized by Mexico as follows: 1 Ibid., p. 539. But see supra. Chapter III for a detailed consideration of this point. 2 Ibid., p. 540. 3 Ibid., pp. 542-543. 4 Ibid., p. 544. 5 International Status of South West Africa, Pleadings, pp. 124 and 249 resp. Notably, South Africa argued against this view, ibid., p. 304. 6 See supra. Chapter I, Sec. 3 and Chapter IV, Sec. 3.

"Can we afford to subscribe to a system that is not at least as good, if not better, than the mandates system under the League of Nations? Do we dare to go backward instead of forward". The 'theory of parallel provisions' of Judges Spender and Fitzmaurice proposes a step backward. When the conference opened at San Francisco the world had two types of administration concerning dependent territories: the mandates system and the ordinary colonial system. And both were relevant to the formulation of the new system. But in no doubt, it was the mandates system - self-determination, international supervision, open door policy which triumphed. Theoretically it was a continual and progressive development, from ordinary colonial status to mandates system and then 2 to trusteeship system, and finally to independence. Thus it is doctrinally and conceptually unfounded to reverse the progression, ie to go from mandated territories to ordinary colonies. The reliance placed by the judges on the arguments advanced by the United States and the Philippines in the International Status of South West Africa,3 in which these countries argued that Article 73 of the Charter of the United Nations could apply to Namibia is misplaced. In 1950 these two Governments did not advance this as a theory, but as an 1 Verbatim Records, 15 May 1945, Running No. 4. 2 See supra. Chapter III the anti-colonial States at the San Francisco Conference used the principle of the mandates system to attack the colonial system; it was not the other way round, that is, that the colonial Powers used the colonial system to attack the mandates system. 3 South West Africa Cases, ICJ Reports 1962, pp. 544-545.

1 expedient measure, no doubt temporary. Whereas, the 'theory of parallel provisions' intends to convert a mandated territory into an ordinary colony, even during the time of the League this was not tenable.2 The arguments of the two Governments did not touch the mandate agreements; whereas the 'theory of parallel provisions' is a substitution for the mandate agreements. This significant distinction makes the reliance of the 'theory of parallel provisions' on the arguments of the United States and the Philippine Governments ill conceived. The 'theory of parallel provisions' is also erroneous from the point of view of textual interpretation of the provisions of the Charter of the United ANations. As stated this 'theory' ousts the provisions of Article 22 of the Covenant of the League and also those of the Mandate for South West Africa. Yet Article 80 of the Charter was inserted specifically to conserve the rights and obligations of all the parties.3 1 The United States, eg, stated: "It would seem, however, that there is nothing in the provisions of the Charter to prevent acceptance by the General Assembly of reports such as a mandatory is required to make under its mandate in satisfaction of the requirements of A;ticle 73 (e)". And the Government of the Philippines stated: " ... pending the placing of the Territory of South West Africa under the Trusteeship System by means of a trusteeship agreement, which the Government of the Union of South Africa is required, in good faith, to negotiate and conclude, without delay or postponement, the said Government is placed under direct accountability to the United Nations for the administration of the Territory of South West Africa, by virtue of the provisions of Article 73 and 74 which constitute Chapter XI of the Charter. This is, of course, apart from the international obligations which the said Government has assumed under the Mandate". International Status of South West Africa, Pleadings, pp. 126-127, and p. 251 resp. 2 See infra. Chapter VII, Sec. 2; for contemporaneous view, see, Friedrich Honing, "International Law and the transfer of mandated territories" Journal of Comparative Legislation and International Law 18 (November 1936) p. 204-211. 3 This fact was specially emphasized in the Report of the Rapporteur, UNCIO, Vol. 10, Doc. 1115, pp. 610-611; see also Verbatim Records, 23 May 1945, Running No. 12, USA delegate. Thus, in the interpretation of Judges Spender and Fitzmaurice there is contradiction between Artitles 73 and 80 of the Charter. it is common knowledge that a "treaty must be read as a whole, and that its meaning is not to be determined merely upon particular phrases which, if detached from the context, may be interpreted in more than one sense".1 Since the 'theory of parallel provisions' of Judges Spender and Fitzmaurice purports to accomplish the very result for which Article 80 was inserted in the Charter of the United Nations; and furthermore since it is a 'theory' which attempts to nullify the gains in the direction of decolonisation won at the Versailles Peace Conference, it is, thus, legally unfounded. 1 The competence of the ILO in regard to international regulation of the conditions of labour of persons employed in agriculture, Series B, No. 2, PCIJ Advisory Opinion, 12 August 1922, p. 23.

CHAPTER VII THE WITHDRAWAL OF THE MANDATE 1 REMAND TO THE UNITED NATIONS The judgment of the international Court in 1966 dashed the hopes of 1 those who anticipated, in line with the jurisprudence of the Court, a binding legal decision. The question of Namibia was thus returned to the United Nations,2 not for implementation under Article 94 (2) of the Charter of the United Nations, as anticipated, but to seek other means to resolve the issue. The refusal of the Court to adjudicate upon the issues raised before it, left the United Nations with no other option but to take the appropriate action. Indeed, the Court in 1966 indicated clearly that the United Nations was the proper forum to take the appropriate actions 1 International Status of South West Africa, Advisory Opinion: ICJ Reports 1950, p. 128; South West Africa - Voting Procedure, Advisory Opinion of 7 June 1955, ICJ Reports 1955, p. 67; Admissibility of hearings of petitioners by the Committee on South West Africa, Advisory Opinion of 1 June 1956, ICJ Reports 1956, p. 23; South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections, Judgment of 21 December 1962, ICJ Reports 1962, p. 319. 2 South West Africa Cases, ICJ Reports 1966, at p. 45; see also, ibid., ICJ Reports 1962 at p. 467. to solve the dispute. It is, thus, surprising that despite this clear invitation to the General Assembly to find a solution, the contention had been advanced, from the bench,2 that the General Assembly should not have revoked the mandate without first referring the question of the violation of the mandate to the Court for determination. Of course, at the United Nations the right of the General Assembly to revoke the mandate of South Africa to administer Namibia was not doubted.3 It was only a question of time and the desire not to be precipitant that kept the General Assembly for a considerable time only condemning apartheid and not making the logical conclusion that South Africa's apartheid policy was contrary to the purpose and objectives of the mandates system. Factually, the apartheid system had been thoroughly considered and rejected4 as contrary to the provisions of the Charter of the United Nations, the Covenant of the League and the mandates system, and the Covenants on Human Rights. For as the apartheid system is devised and practised solely to maintain white minority settlerism and colonial rule, it is thus by definition incompatible with the mandates system, which envisaged ultimate realisation of the right of self-determination of the inhlabitants of the mandated territories. 1 Ibid., ICJ Reports 1966, p. 45. 2 Legal Consequences for States of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 'hereafter referred to as Namibia Advisory Opinion), Dissenting Opinion of Judge Fitzmaurice at p. 299; and Dissenting Opinion of Judge Gros at p. 338; Cf. ibid., Separate Opinions of Judges De Castro and Dillard at pp. 214 and 162, resp. 3 See infra p. 315, notes 1-4, p. 316, notes 1-4, p. 317, note 1. 4 See eg Declaration on the Elimination of all Forms of Racial Discrimination, General Assembly Resolution 1904 (XVIII).

Ethiopia and Liberia, the two Applicants at the International Court in the South West Africa Cases, opened the debate at the United Nations; and stressed the fact that all avenues, both legal and political, have been tried to move South Africa to the position of the international community, but to no avail; and the numerous resolutions adopted by the General Assembly were emphasized. On the whole Ethiopia, Liberia and South Africa resubmitted the legal arguments they presented at the International Court. Also most of the delegates were by and large legalistic in their language and arguments.3 The Afro-Asian countries mooted the idea to revoke the 4 mandate for South Africa's administration of Namibia; but the actual wording of the resolution emerged from the debates and was submitted by the Latin- American and the Caribbean countries.5 The Afro-Asian draft was simply worded "Decides to take over the Mandates, ... and 1 Eg, the Foreign Minister of Liberia started his statement right from the very first resolution adopted by the General Assembly on the question of Namibia, GAOR, 21st Sess., Plenary, 1414th Mtg., para. 39; and by 1966 the General Assembly had adopted more than 70 resolutions on Namibia, and the general attitude of the delegates was that South Africa had failed in her obligation as a Member by ignoring all such resolutions; see also supra. Chapter IV, Sec. 2. 2 GAOR, 21st Sess., Plenary, 1431st Mtg., the case of South Africa in the General Assembly was presented by Mr. De Villiers, the leader of the South African legal team in the South West Africa Cases at the Hague, and he tended to argue that the General Assembly was barred from taking the proposed action because the allegation of violation. of the mandate was rebutted at the Court, not that such rebuttal found approval with the Court. 3 See infra 4 UN Doc. A/L 483. 5 UN Doc. A/L 488, 25 October 1966, this amendment had also the support of the Scandinavian countries. 6 UN Doc. A/L 483. this was rephrased by the Latin American and the Caribbean amendment, in a more appropriate language to emphasize the fact that South Africa "disavowed the Mandate".1 On the other hand, the United States attempted. unsuccessfully to limit the United Nations actions only to ensure that the international status of Namibia and that the principle of selfdetermination would be safeguarded, and not to take over the administration of Namibia.2 This amendment, which would have created a vacuum in the legal authority for the administration of Namibia, was probably prompted by the desire to avoid assumption of responsibility which the United Nations could not fulfil without the co-operation of South Africa, the co- operation which, judging from past experience, could not be expected. 3 2 THE REVOCATION OF THE KNDATE It would be recalled that at the Paris Peace Conference the bone of contention as far as the former German colonies and the Turkish territories were concerned, centred on the applicability of the principles of self-determination, international accountability and non-annexation, on the one hand, as opposed, on the other hand, to annexation pure and simple. In the end, the former triumphed. However, outright international administration was not acceptable either. Thus, in the nature of give and take among the participating States the notion of revocability or terminability of the mandates was not specifically stated in the instruments. But it is clear from the provisions of the Covenant of the i UN Doc. A/L 488. 2 UN Doc A/L 490. 3 GAOR, 21st Sess., Plenary, 1453rd Mtg.

League and those of the mandate agreements that the mandates were regarded as temporary. As indicated, the general opinion during the First World War was against "spoils of war" and territorial aggrandizement.2 This momentum was not completely lost with the victory. In specific instances where the question of revocability of the mandates was considered it was not ruled out. General Smuts, for instance, originally3 perceived the mandates as revocable. In December 1918, for example, he wrote: "And in case of any flagrant and prolonged abuse of this trust the population concerned should be able to appeal for redress to the League, who should in a proper case assert its authority to the full, even to the extent of removing the mandate, and entrusting it to some other State if necessary".4 It would be observed that General Smuts was only stating a general principle of international law; and he did not attempt to exclude from the mandates system the right of the innocent party to revoke or terminate the treaty obligations due to prior material violations by the other. The same view was also held by President Wilson, in his third draft or othe second Paris draft he advocated the right of the League to revoke the mandate in case of serious infraction of the principle of the I Article 22, para. I of the Covenant of the League of Nations "which are inhabited by peoples not yet able to stand by themselves" (emphasis added); see also infra p. 292, note 2. 2 See supra Chapter I, Sec. 1. 3 Admittedly only to non-African territories, but the principle was the same. 4 J.C. Smuts, The League of Nations: A Practical Suggestion. London: Hodder and Stoughton, 1918, pp. 21-22. mandates system by the mandatory.1 The fact that the mandates could be revoked was used by the annexationists at the Paris Peace Conference to argue against the whole idea of the mandates system, and thus to urge for annexation pure and simple; and not only that the mandates should be permanent, which would have been a contradiction in terms any way.2 1 David Hunter Miller, The Drafting of the Covenant, 2 vols. New York: Putnam, 1928, Vol. 2, Doc. 9, pp. 103-106 at p. 104. "The degree of authority, control, or administration to be exercised by the mandatory State or agency shall in each case be explicitly defined by the Executive Council in a Special Act or Charter which shall reserve to the League complete power of supervision, and which shall also reserve to the people of any such territory or governmental unit the right to appeal to the League for the redress or correction of any breach of the mandate by the mandatory State or agency or for substitution of some other State or agency, as mandatory". 2 Chowdhuri missed this point, namely, that the argument was not on the fact that mandates would be revocable, but that that fact made annexation preferrable; as a result he reached an incorrect conclusion to the effect that revocability was excluded. R.N. Chowdhuri, International Mandates and Trusteeship System: A Comparative Study. The Hague: Nijhoff, 1955, p. 62. The full statement of Mr. Simon, the French Minister, on which Chowdhuri relied, was as follows: "The mandatory system consisted of empowering one nation to act on behalf of another. Every mandate was revocable and there would therefore be no guarantee for its continuance. There would thus be little inducement for the investment of capital and for colonisation in a country whose future was unknown. The mandatory would be content to live quietly without trying to develop the colony or to improve the conditions of life of the natives and the desired ideal would not be attained by this means". Papers Relating to the Foreign Relations of the United States. The Paris Peace Conference 1919, Vol. 3, pp. 760-761. And Mr. Simon concluded: "The third system still retiained to be considered - that of annexation, pure and simple, which he had come to support that day. It was the only one which would accomplish the double object of every colonial government worthy of the name". Ibid. And he added: "The work of civilization would only be carried out under the auspices of the sovereignty of a country". Ibid., p. 762. It would be observed that ou" contention was supported by the International Court, see Namibia Advisory Opinion, ICJ Reports 1971, at p. 48.

1 However, in the compromise that was finally struck, the notion of revocation of the mandates was not specifically mentioned. But, on the other hand, and legally more significant, it was not excluded either. Thus, the general principles of international law remained operational. Furthermore, in view of the element of temporariness so clearly embodied in the provisions of the Covenant of the League relating to the mandates system, and also due to the principle of international supervision fully and explicitly provided for both in the Covenant of the League and in the mandate agreements, the notion of revocation could not have been excluded. Even after the acceptance of the provisions on the mandates system, which became finally Article 22 of the Covenant of the League, President Wilson stressed the temporariness of the mandates in the clearest of terms, that "the whole theory of mandates is not the theory of permanent subordination. It is the theory of development, of putting upon the mandatory the duty of assisting in the development of the country under mandate, in order that it may be brought to a capacity for self-government and self-dependence which for the time being it has not reached".2 It is significant to note that President Wilson had in mind all mandates. As a reasonable sanction for the system established the right of revocation by the supervisory organ should be deemed as anticipated; indeed, that was the general view during the era of the League of Nations.3 1 Actually drafted by General Smuts, see supra. Chapter I, Sec. 3. 2 Papers Relating to the Foreign Relations of the United States. op. cit., Vol. V, p. 700. 3 See immediately below; see also, John Dugard, "The Revocation of the Mandate for South West Africa", AJIL 62 (1968) p. 85.

293 The above contention is also supported by the position taken in the various organs of the League of Nations. The formulation of the question referred to the Permanent Mandates Commission by the Council of the League concerning the possibility of the termination of the mandates is an apt illustration of this point. In no doubt, a unanimous decision, the Council of the League phrased the question as follows: "Being anxious to determine what general conditions must be fulfilled before the mandate regime can be brought to an end in respect of a country placed under that regime, and with a view to such decisions as it may be called upon to take on this matter".1 The notion of temporariness of the mandates was thus unambiguously affirmed. Lord Lugard used it in the Mandates Commission as the authoritative reason for the temporary nature of the mandates system. He argued, "I venture to think that the Council by its reference to us assumed that a mandate is temporary, and that it has competence to terminate it".2 Also Van Rees argued that although from a narrow textual interpretation of Article 22 of the Covenant it might seem plausible to hold 3 that the temporary element applied only to Class 'A' mandates; however, from the historical background it was untenable. He pointed out that 1 PMC 20th Sess., Min. (1931), Annex 3, p. 195 at p. 203. 2 Ibid., p. 201. It is important to note that the Permanent Mandates Commission at this session was considering specifically the question of termination of a mandate. Thus the contrary view expressed early by Lord Lugard when considering the question of loans and investments (ibid. 5th Sess., Min. Annex 6) must be considered in the light of the issue under consideration. To that extent the conclusion placed on the views expressed at that occasion is out of context and of less significance on the issue of termination of a mandate. South Africa only referred to the statement made to an earlier occasion, and conveniently omitted the relevant statement made at the latter occasion, see, Namibia Advisory Opinion, Pleadings, Vol. I, p. 58. 3 Eg, France in the 6th Com., 10th Assembly of the League (1929) Official Journal, Special Sup. No. 81, 5th Mtg., p.'23.

"although it (the temporary element) was not expressed as perfectly as it might have been, the fact remains that beyond the slightest doubt the Peace Conference anticipated that a day would come when those peoples who were for the time being regarded as under tutelage could be recognized as fit for self-government". 1 The view that the mandates, all classes, were temporary and would come to an end as soon as the inhabitants were "able to stand by themselves" was not dissented from in the Mandates Commission. The notion of the temporariness of the mandates was also acknowledged in the Assembly of the League, although some mandatory States 2 registered dissent. But the reason for their dissent was not on theoretical consideration or textual interpretation of the mandates system, but on expediency. That emphasis on the temporary element would give the inhabitants the idea that they could get rid of the mandatory Power, and that that would create administrative problems for the mandatory Powers.3 On the other hand, the temporary nature of the mandates was unequivocally asserted. "It must be remembered that a mandate is in theory and in essence revocable".4 The delegate from Italy when considering the question of administrative union between the mandated territory of Tanganyia (now a part of Tanzania) with Kenya and Uganda emphasized that the "essential characteristic of the mandate, moreover, was its 1 PMC 20th Sess., Annex 3, General conditions to be fulfilled before the mandate regime can be brought to an end in respect of a country placed under that regime. A note by Van Rees, p. 195 at p. 197. 2 League of Nations, 10th Assembly, 6th Com., 5th Mtg., pp. 24-25 and 6th Mtg., p. 29, France and South Africa resp. 3 New Zealand, ibid., 4th Mtg., p. 21. 4 Ibid., 3rd Assembly, Plenary, 12th Mtg. (1922), Vol. I, p. 154. temporary nature, and an administrative fusion, which might also entail extensive joint schemes for important public works and improvements of all kinds, seemed incompatible with this characteristic". I In the Council of the League too, the notion of temporariness of the mandates was fully accepted, as the question concerning the termination of the mandates referred to the Permanent Mandates Commission would indicate. When the Council considered the questions of the loans to and private investments in mandated territories, it approved the proposition that a mandate could be transferred or terminated. The only query on this position was raised by Australia which wanted assurance that any debt incurred would be transferred.2 From the foregoing analysis it is clear that the League of Nations approved the notion that the mandates were temporary, and thus not only terminable but also revocable. Therefore, there was no legal or theoretical impediment for the League of Nations to terminate or to revoke a mandate. Consequently, the United Nations which has assumed the super3 visory functions of the League, is equally legally empowered to terminate or to revoke a mandate. 1 Ibid., 10th Assembly, 6th Com., 4th Mtg. (1929) Off. Journal Special Sup. No. 81, p. 20. Although some members disagreed with the Italian position, the majority supported it; ibid. 5th - 6th Mtgs. 2 Ibid., 6th Mtg., p. 29. 3 The judgment of 1966 in the Second Phase of the South West Africa Cases, in our view, despite the unwarranted innuendoes, did not invalidate the ruling of the Court on this point, successively upheld by the Court from 1950 to 1962.

(i) Sovereignty in the Mandates System The issue of revocability of the mandates may also be considered from the principle of sovereignty. The notion of temporariness of the mandates is an important factor to determine where sovereignty in the mandated territories resided. If the mandatory power had complete sovereignty over the mandated territory, then the mandate could not be evoked or terminated against the will of the mandatory power. On the other hand, if the mandatory did not have complete sovereign power over the mandated territory, then the mandate could be ended, even against the will of the mandatory. For that reason the question of sovereignty In the mandated territories elucidates the notion of temporariness of the mandates. During the era of the League the question of sovereignty in the mandated territories was often discussed by the international commentat1 ors; and it also featured in some judicial rulings. The various central organs of the League of Nations also considered it. Many theories were propounded in attempts to locate sovereignty in the mandated territories. However, four theories on sovereignty in mandated territories were of significance.2 These corresponded largely to the four main actors in the system, namely: the Principal Allied and Associated Powers, the League of Nations, the mandatory States, and finally the inhabitants of the mandated territories. A combination of the four theories added further variations. 1 John F. Crawford, "South West Africa: Mandate Termination in Historical Perspective", -Columbia Journal of Transnational Law 6 (1967), p. 91 at p. 105. 2 See, eg, Quincy Wright, Mandates under the League of Nations. Chicago: University of Chicago Press, 1930, p. 319.

The firstI theory - that sovereignty in mandated territories resided in the Principal Allied and Associated Powers - received less support among the publicists,2 and less so in the Permanent Mandates Commission.3 This theory was probably based more on expediency than legal principles or conventional provielons.4 The second theory: that sovereignty in mandated territories resided in the League of Nations, was the most widely supported one;5 particularly, its combination with the mandatory States as shared sovereignty.6 However, from a purely theoretical position this variation was not only in conformity with the conventional principles and the practice, but most significantly it wasin consonance with the intentions of the parties. I No hierarchical significance either legal or otherwise is implied by the order followed; it is only to facilitate the presentation of the arguments. 2 Quincy Wright, "Sovereignty of the Mandates", AJIL 17 (1923) p. 691; M.F. Lindley, The Acquisition and Government of Backward Territory in International Law: Being a Treatise and Practice relating to Colonial Expansion. London: Longmans, Green, 1926, p. 264. 3 See, League of Nations, Off. Journal (1920), p. 334; ibid. (1927), p. 1119. 4 See, eg, Donald S. Leeper, "International Law - Trusteeship compared with Mandate", Michigan Law Review 49 (1950-1951) p. 1119 at p. 1204, where it asserted that this theory found support in some American circles, so as to keep the American rights and interests secured in the mandates. 5 See, eg, Quincy Wright, op. cit., p. 338 et seq. 6 For an international organisation, early in the history of international organisations, to possess,sovereignty over a territory was rather difficult to conceptualize at that time. Hence the emphasis was placed on the fact that the League administered no territory, had no territory and was not a superstate. See eg, J. Stoyanovsky, La Theorie g6nrale des mandats internationaux. Paris: Presses Universitaires de France, 1925, p. 77; P.E. Corbett, "What is the League of Nations?" BYIL (1924), p. 119 at p. 134.

The third theory: that of mandatory sovereignty, declined in acceptance as the years passed and the international supervision of the League was seen as effective and real.1 The fourth and last theory; that sovereignty resided in the inhabitants of the mandated territories, was advanced more in relation to the Class 'A' mandates.2 This was based on the notion that sovereignty was in abeyance and would revert to the inhabitants upon attainment of their independence.3 What is of significance to our study is that the overwhelming majority of the publicists did not accord the mandatory states complete sovereignty.4 Thus the mandatory State was considered as not having unfettered sovereignty in the mandated territory. Consequently, in case of serious violations of the purpose and objectives of the mandates system by the mandatory State the League of Nations could act to redress the situation. Judicial opinions on the question of sovereignty in mandates territories were scanty and came from the national courts of the mandatory States. When the question of where sovereignty lay in a mandated I Henri Rolin, "Le Systeme des mandats coloniaux", RDI (1920), p. 340, at pp. 347-350. The scholarly study of Quincy Wright published in 1930 concluded that few jurists adhered to the theory of mandatory sovereignty, on the contrary some publicists changed their position. See Wright, op. cit. pp. 325, 339; see also, James C. Hales, "Some Legal Aspects of the Mandate System: Sovereignty - Nationality Termination and Transfer", Transaction of the Grotius Society 23 (1937) p. 85; and for modern writers, see John F. Crawford, loc. cit. John Dugard, loc. cit., Geoffrey Morstan "Termination of Trusteeship" International and Comparative Law Quarterly 18 (1969) p. 1. 2 Quincy Wright, op. cit., p. 327 et seq. 3 See, eg, Namibia Advisory Opinion, the Dissenting Opinion of Vice President Amoun, ICJ Reports 1971, at p. 68. 4 See supra note 1 above. territory was made the ground for appeal in R v Christian,1 the Supreme Court of South Africa did not hold that unfettered sovereignty resided in the mandatory, South Africa. The Court divided sovereignty between internal and external components of sovereignty; and found that the mandatory, South Africa, had full internal sovereignty, that is, administrative sovereignty.2 On that basis the Supreme Court of South Africa found that the charges of high treason preferred against Christian could legally lie.3 It would be observed that the Court's reasoning was in line with the theory of divided sovereignty bctween the League of Nations and the Mandatory State, so vastly supported by the publicists.4 The ruling of the Supreme Court of South Africa in Christian's case was supported by the courts in New Zealand.5 It is significant to our analy6 sis that the national courts, despite unwarranted contrary claims, did not hold that the mandatory Powers had complete unfettered sovereignty in the mandated territories they administered.7 1 R v Christian (1924) A.D. p. 101 (South Africa Law Report). 2 Ibid., p. 106 et seq. 3 Ibid., pp. 113-114. 4 See supra p. 298, note 1. 5 Nelson v Braisby (1934) New Zealand Law Report 559) or, Annual Digest of Public International Law Cases (1933-1934) Case No. 15, p. 39; In re Tamasese, ibid., Case No. 16, p. 42. 6 General Smuts (Prime Minister), Union of South Africa, House of Assembly, Debates, Vol. 8, 11 March 1927, col. 1324. 7 In R v Christian (1924) A.D. p. 101 only the reasons of one judge out of five Judges of Appeal, Judge Wessels at p. 135 could be said to come to a finding that complete sovereignty resided in the mandatory. The leading opinion written by Chief Justice Innes, and in which the other three judges concurred, ended only at holding that South Africa had full internal or administrative sovereignty.

1 The High Court of Australia in Ffrost v Stevenson, where authorities on the question of sovereignty in mandated territories were extensively canvassed, also supported the notion of shared sovereignty. J. Evatt stated lucidly the powers of the mandatory State, that "it is quite fallacious to infer from the fact that in pursuance of its international duties under the mandate the Commonwealth of Australia exercises full and complete jurisdiction over the territory as though it possessed unlimited sovereignty therein, either that the territory (a) is a British possession, or (b) is within the Kings Dominions, or (c) has ever been assimilated or incorporated within the Commonwealth or its terri tories". 2 The judicial pronouncements of the municipal courts on the whole followed the basic sui generis characteristics of the new institution. Thus the issue of sovereignty in mandated territories was not considered in purely abstract theoretical terms but in relation to the workings of the mandates system as well as its objectives.3 The International Court in its advisory opinion on the International Status of South West Africa largely followed the municipal courts' pronouncements. It stated: 1 58 Commonwealth Law Report 528 (Australia 1937) or Annual Digest of International Law Cases (1935 - 1937).Case No. 29, p. 98. 2 Ibid., at p. 106; And the Judicial Committee of the Privy Council held that the Supreme Court of a mandated territory is entitled to consider as to whether any law passed by the mandatory Power was ultra vires to the mandate agreement, see, District Governor, Jerusalem - Jaffa District and Another v Suleiman Murra and Another (1926) A.C. 321, or Annual Digest of Public International Law Cases (1925 - 1926) Case No. 32. 3 As a result one commentator was obliged to comment: "It is idle to attempt to force the mandate, which is a social institution, into the individualist concept of sovereignty ... For the mandatory's right, like the trustee's, have their foundation in his obligations; they are 'tools given to him in order to achieve the work assigned to him' ".. J.C. Brierly, "Trust and Mandates", BYIL (1929) p. 217 at p. 219.

"The terms of this Mandate, as well as the provisions of Article 22 of the Covenant and the principles embodied therein, show that the creation of this new international institution did not involve any cession of territory or transfer of sovereignty to the Union of South Africa".1 As confirmed, by the foregoing analysis of judicial pronouncements on the subject, the theory of absolute mandatory sovereignty found no authoritative judicial support. The issue of sovereignty in the mandated territories also featured frequently in the various organs of the League of Nations; particularly in the Permanent Mandates Commission. The Mandates Commission appears to have operated from a stand point that sovereignty was not transferred (wholly) to the mandatory States.2 The distinction between administrative sovereignty and sovereignty in the traditional sense was endorsed in the Mandates Commission. The former being conceded, while the latter being constantly denied.3 The annexationists, by some subterfuge of one kind or another, attempted to equate mandated territories with ordinary colonies.4 But such notions were constantly challenged and refuted by 1 International Status of South West Africa, Advisory Opinion, ICJ Reports 1950, p. 128 at p. 132. The same view found approval by Judge Padilla Nervo in his dissenting opinion in the South West Africa Cases, ICJ Reports 1966, p. 466. 2 See, eg, Norman Bentwich, The Mandates System. London: Longmans, Green and Co., 1930, p. 20. 3 See a Memorandum which surveyed the question, Archives of the League of Nations, S.1611 No. 4 (1927 - 1930), (UN Library, Geneva). 4 Eg, General Smuts in September 1920 in a speech in Windhoek stated: "In effect, the relations between the South West Protectorate and the Union amount to annexation in all but name. Without annexation the Union could under the Peace Treaty, do whatever it could have done in annexed territory, save the reservation of the natives". PMC 2nd Sess. (1922) Annex 6, p. 91 at p. 92. It is instructive to observe that South Africa was the only mandatory Power, which persisted in this theory of veiled annexation, see, John F. Crawford, loc. cit., at p. 10. the Permanent Mandates Commission. The question of sovereignty in the mandated territories was discussed by the various organs of the League mainly in relation to Namibia. Two actions by South Africa prompted this. Fiitly, very early South Africa by an Act of Parliament2 purported to have transferred the railways and harbours of the mandated territory to herself in "full dominium".3 Secondly, in the preamble to a treaty with Portugal concerning a border settlement between Angola and Namibia it was stated: "And whereas under a mandate issued by the Council of the League of Nations in pursuance of Article 22 of the , the Government of the Union of South Africa, subject to the terms of the said mandate, possessed sovereignty over the Territory of South West Africa (hereinafter referred to as the Territory) lately under the sovereignty of Germany".4 The alleged possession of sovereignty was challenged by the Mandates Commission. In the first instance, the Mandates Commission insisted to get clarification as to ';hether it was merely the administration of these public works which had been transferred, or whether they had become the property of the South , and were no longer regarded as belonging to the mandated territory".5 In both instances South Africa 1 Eg, on the issue of the railways and harbours, see below, it was acknowledged in the South African Parliament that from "the time this Act of 1922 was passed, the Permanent Mandates Commission has been asserting that the Government had acted illegally in appropriating the railway assets that had come into its possession". Union of South Africa. House of Assembly Debates, Vol. 14, col. 64, 23 January 1930; see also, PMC 10th Sess., Min. p. 83 (C.632 M.248, 1926 VI). 2 The South West Africa Railways and Harbours Act, 1922, Act No. 20 of 1922. 3 Ibid., Article I; This was considered to be contrary to Articles 120 and 257 of the Treaty of Versailles. Article 257, for example, stated in parts: "All property and possession belonging to the German Empire or to the German State situated in such territories shall be transferred with the territories to the mandatory Power in its capacity as such and no payment shall be made nor any credit given to those Governments in consideration of this transfer". 4 Archives of the League of Nations, S'.1611 No. 4 (1927 - 1930); or see also, PMC XIth Sess., Min. Annex 6, p. 199. 5 Van Rees, PMC 3rd Sess., Min. (1923) pp. 106-107

303 explained that she held the territory under the mandate of the League, and that she did not claim full sovereignty over the mandated territory. Nonetheless, it was still felt that that doubts would persist as regards where sovereignty resided in the mandated territory, so long as a legal Act of the Mandatory gave the impression that she had full 2 sovereignty. The Vice-President of the Mandates Commission, Van Rees, argued as follows: "The Comaission had asked whether, to avoid any misunderstanding in future, it would not be advisable to amend this law in order to bring the text into conformity with Articles 120 and 257, paragraph 2 of the Treaty of Versailles, particularly as the expression 'full dominium' did not apparently correspond with the interpretation given to the Act by the mandatory power itself".3 The Government of South Africa had thus to amend the Act incorporating the railways and harbours into those of the Union. The Prime Minister when introducing the amending bill in Parliament emphasized the concern of the Mandates Commission: he stated: "Let me say at once that this Bill is the result of the proposal made by, or rather, criticism,4 made by the Mandates Commission about the use of the word 'sovereignty' in clause 3, paragraph 1. The Mandates Conmission asked the question whether it could actually be said that 'sovereignty' was included in the terms of reference, and the grant to us of the mandate, and whether the word isovereignty' does not encroach upon the nature of the mandate itself".5 I Ibid., 6th Sess., p. 178. 2 Ibid., 4th Sess., Min. p. 123. 3 Ibid., 9th Sess., Min. p. 42. 4 Cf. South Africa's claims, South West Africa Cases, Pleadings, Vol. II, pp. 24-32. 5 Union of South Africa. House of Assembly. Debates, Vol. 14, Col. 63, 23 January 1930.

The Prime Minister of South Africa further emphasized that the Government "wanted to meet the objection which was felt by the Mandates Commission".1 This amendment2 is a clear admission by the highest authority of the mandatory Power that only administrative sovereignty resided in the Mandatory, and not the unfettered sovereignty the phrase "full dominium" conveyed. This was a remarkable achievement by the supervisory organ, which surprisingly is hardly referred to in the consideration of the question of Namibia.3 The issue of sovereignty in the mandated territories was also discussed in the Assembly of the League and the position taken by the Mandates Commission was uneservedly upheld.4 Needless to say that the Council of the League approved all the reports of the Mandates Commission and thus endorsed the position of the Commission on this point. As was only the Council which communicated with the mandatory Powers, the success of the Mandates Commission to get South Africa to amend its Act on railways and harbours in Namibia was, thus, equally that of the Council. The emphasis of and reliance on consent5 as the determining factor in the implementation of supervisory measures is thus unfounded. For it 1 Ibid., cols. 63-64. 2 "I. Notwithstanding ... etc. shall be held by him subject to the mandate issued by the Council of the League of Nations in pursuance of Article 22 of the Treaty of Versailles". South West Africa Rail-ways and Harbours (Amendment) Act, 1930. 3 As far as we could determine it does not seem that this fact was ever referred to even at the ICJ; but see supra p. 303, note 4. 4 See eg, 10th Sess. of the Assembly, 6th Comtt. (1929). Off.Journal, Sup. No. 81, pp. 18 et seq. 5 Consent was the central plank,of the dissenting opinion of Judge Fitzmaurice in the Namibia Advisory Opinion, ICJ Reports 1971, p. 220.

304 The Prime Minister of South Africa further emphasized that the Government "wanted to meet the objection which was felt by the Mandates Commission".1 This amendment2 is a clear admission by the highest authority of the mandatory Power that only administrative sovereignty resided in the Mandatory, and not the unfettered sovereignty the phrase "full dominium" conveyed. This was a remarkable achievement by the supervisory organ, which surprisingly is hardly referred to in the consideration of the question of Namibia.3 The issue of sovereignty in the mandated territories was also discussed in the Assembly of the League and the position taken by the Man4 dates Commission was unreservedly upheld. Needless to say that the Council of the League approved all the reports of the Mandates Commission and thus endorsed the position of the Commission on this point. As was only the Council which communicated with the mandatory Powers, the success of the Mandates Commission to get South Africa to amend its Act on railways and harbours in Namibia was, thus, equally that of the Council. The emphasis of and reliance on consent5 as the determining factor in the implementation of supervisory measures is thus unfounded. For it 1 Ibid., cols. 63-64. 2 "I. Notwithstanding ... etc. shall be held by him subject to the mandate issued by the Council of the League of Nations in pursuance of Article 22 of the Treaty of Versailles". South West Africa Railfways and Harbours (Amendment) Act, 1930. 3 As far as we could determine it does not seem that this fact was ever referred to even at the ICJ; but see supra p. 303, note 4. 4 See eg, 10th Sess. of the Assembly, 6th Comtt. (1929). Off.Journal, Sup. No. 81, pp. 18 et seq. 5 Consent was the central plank,of the dissenting opinion of Judge Fitzmaurice in the Namibia Advisory Opinion, ICJ Reports 1971, p. 220. would amount to an elevation of the mandates to a different plane; the plane of absolute sovereignty which the foregoing analysis - writings of publicists, judicial pronouncements, practice of the various organs of the League, and also the practice of state, including that of the mandatory States - has shown conclsuively to have been excluded. From all perceptions the mandates were terminable and revocable. Although the mandatory Power could, in both instances, propose she could not unilaterally decide, for she did not have absolute authority. On the other hand, the supervisory organ could in a situation of serious violations of the objectives and the purpose of the system take supervisory actions, which in appropriate circumstances could even include withdrawal of the mandate. There are no legal principles, either general or conventional for the mandatory Power to convert unilaterally the purely administrative sovereignty into full sovereignty, as subsequent actions and attitude of South Africa: refusing to negotiate a trusteeship agreement, declining to submit her administration in the mandated territory to international supervision, or to forward petitions from the inhabitants, would amount to. (ii) Material Breach The general principles of international law permit generally the termination or suspension of treaty obligations by the innocent party, where the treaty is silent, for prior material breach of the treaty by the other party.1 The Permanent Court of Arbitration had occasion to 1 Oppenheim International Law, 8th Edition. (Lauterpacht, ed.) London: Longmans, Green and Co., 1955, Vol. I, p. 947; Lord McNair, The Law of Treaties. Oxford: Clarendon Press, 1961, pp. 553-571; TacnaArica Arbitration (Chile and Peru),,Annual Digest of Public International Law Cases (1925 - 1926), Case No. 269, p. 357, or AJIL 19 (1925) pp. 393-432.

30b observe that "every State has to execute the obligations incurred by treaty bona fide, and is urged thereto by the ordinary sanctions of international law in regard to observance of treaty obligations".1 The International Law Commission in its commentary on Article 57 (60 Vienna Convention on the Law of Treaties) - "Termination or suspension of the operation of a treaty as consequence of its beach" - stated this general principle in the following terms: "The great majority of jurists recognise that a violation of treaty by one party may give rise to a right in the other party to abrogate the treaty or to suspend the performance of its own obligations under a treaty".2 It would thus seem that the right of the innocent party to terminate a treaty due to prior violation of treaty provisions is the corollary of the principle of pacta sunt servarda.3 Indeed, "it is this principle which make it possible to call for performance in good faith of contractual obligations".4 It seems now to be a settled point that a unilateral right of a state to terminate or suspend a treaty for prior serious breach is a basic principle of international customary law founded on the notions of justice and equity as evinced by practice of 1 The North Atlantic Coast Fisheries Case (Great Britain v United Sttes) (1910), James Brown Scott, The Hague Court Reports, 2 vols., Carnegie Endowment for International Peace. New York: Oxford University Press, 1916, 1932, Vol. I, p. 143, at p. 167. 2 Reports of the International Law Commission on the 2nd part of its 17th Sess. and on its 18th Sess. Yearbook of the ILC 1966, Vol. 2, Sup. 9 (A/9309/Rev.1), p. 169 at p. 253. 3 See supra note I above, and also Article 26 of the Vienna Convention on the Law of Treaties of 1970. 4 Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, ICJ Reports 1972, Separate opinion of Judge De Castro, 74 at p. 129. The International Law Commission made the distinction that the right of the innocent party was not a right of reprisal but is derived from treaty law. Yearbook of the ILC 1966, Vol. 2, p. 255. of State. It is instructive to note that during the preparation of the Vienna Convention on the Law of Treaties no State raised any objection to this principle.2 It could be observed from the foregoing that the requirement for a judicial determination3 of the nature and effect of the material breach of a treaty appears to be only a criterion for equitable resolution of an international dispute; but it does not seem to be the basis of the right.4 The innocent party could make the determination as regards the material breach; and within the bounds of law take the necessary actions, including denunciation of the treaty. The International Court of Justice itself supported the notion of auto- determination when in the Genocide Case it left the determination of whether a reservation was compatible with the main objects and purpose of the treaty to the parties themselves.5 Thus, auto-determination is not an unknown phenomenon in the domain of treaty law. To that extent, the unilateral action of the innocent party resulting from prior material breach should not be invalidated simply because there was no independent 1 See generally, Bhek Pati Sinha, Unilateral Denunciation of Treaty because of prior Violation of Obligations by the other Party. The H1ague: Nijhoff, 1966. 2 ie, to Article 60, para. I of the Vienna Convention on the Law of Treaties, see, Yearbook of the ILC, 1966, Vol. I, part I, 831st Mtg., p. 59, para. 17, statement by the Special Rapporteur. And an imminent publicist concluded that "it cannot be denied that there are circumstances in which one party to a treaty can acquire, as a consequence of a breach of the treaty by another party, the right as against that party to abrogate it unilaterally", Lord McNair, 02. cit., p. 553. 3 See supra p. 287, note 2. 4 GAOR, 21st Sess. Sup. No. 9 (A/6309/Rev. I) p. 83; (Reports of the ILC on the 2nd part of its 17th Sess. and 18th Sess. 1966). 5 Reservations to the Convention on Genocide, Advisory Opinion: ICJ Reports 1951, p. 15. judicial determination into the nature and effect of the material breach. In the case of the administration of South Africa, in Namibia there are numerous reports by the various bodies of the United NationsI which censured the administration. Furthermore, apartheid was overwhelmingly 2 rejected by the United Nations. And the effect of the apartheid policy 3 of the South African administration, as already noted, was to maintain the white- settlers' rule in Namibia, that is, to prevent and obstruct the development and the realization of the principle of self-determination in Namibia. Unless the contrary is manifestedly obvious, statutory discrimination against a section of the population, and more pertinently, which does not take part in the promulgation of such laws, could not be considered as justifiable. In this regard the International Court ruled that "there must be equality in fact as well as ostensible legal equality in the sense of the absence of discrimination in the words of the law".4 Successive judicial decisions on the question of Namibia5 held that international supervision, which should be exercised by the General Assembly, was one of the fundamental features of the mandates system which were rejected by the mandatory Power. Instead the actions of the 1 See supra Chapter V. 2 See, eg, Declaration on the Elimination of All Forms of Racial Discrimination, General Assembly Resolution 1904 (XVIII); and also, generally, for a discussion of the opposition to apartheid in various international organisations, Richard E. Bissell, Apartheid and International Organisations. Boulder, Colorado, Westview Press, 1977. 3 See supra Chapter V. 4 German Settlers in Territory Ceded to Poland (Advisory Opinion) . PCIJ, 1923, Series B. No. 6 at p. 24. 5 See supra p. 286, note 1; the Court was obliged to observe on the complementary of rights and obligations that "to retain the rights derived from the Mandate and to deny the obligations thereunder could not be justified". International Status of South West Africa, Advisory Opinion: ICJ Reports 1950, p. 133.

310 The revocation of the mandate for the administration of South Africa in Namibia could be justified as a unanimous decision of all the other members to a multilateral treaty resulting from a prior material breach. The rationale behind the limitation on the consequences resulting from material breach of provisions of multilateral treaty was to protect the interests of the other members, who are equally innocent; and furthermore, to safeguard provisions of norm creating character.2 The breach by South Africa of the mandate's provisions was aimed at frustrating the purpose and objectives of the regime. Thus, to maintain the agreement vis-'a- vis South Africa would, in fact, have amounted to allowing South Africa to amend it unilaterally, contrary to the holding of the International Court.3 And more significantly, and very pertinent to the argument advanced here, the legal interests and rights, to some extent humanitarian in nature, accruing to the people of Namibia would have been repudiated; for the intention of South Africa. was to annex Namibia, or the greater and important part thereof. L On the other hand, if the agreements setting up the mandates were viewed as having been between the League (an international organisation) and the mandatory Powers the provisions on bilateral treaty would apply, and these present less problems; in view of the sui generis nature of the mandates system, the bilateral character of the regime should not be exclusively asserted; if anything, the mandates system, particularly from the substance of the regime created, appears to be more of multilateral than bilateral in nature. 2 Yearbook of the International Law Commission, 1966, 832nd Mtg., p. 64, para. 5. The Commission emphasized the need to safeguard basic codified principles from being repudiated just because of a breach by one party, who may even desire the results. 3 International Status of South West Africa, Advisory Opinion, ICJ Reports 1950, p. 128 at pp. 141 et seq. 4 Provisions of humanitarian nature cannot be repudiated even due to prior material breach, see, paragraph 5, Article 60, Vienna Convention on the Law of Treaties.

From the foregoing analysis the procedural requirements for the implementation of the principle of unilateral or unanimous, whichever the case, denunciation of treaties due to prior material breach were not transgressed to the extent to make the decision of the General Assembly invalid. The violations by South Africa of the provisions of the Mandate, and it could also be added infringement of the principles of the United liations law of decolonisation (the latter is a manifestation of the Cormer), were of two categories; though of the same kind, different in degrees. In the first category, South Africa by her refusal to submit reports on her administration of Namibia and to subject same to international supervision as well as refusal to forward petitions from the inhabitants, she violated paragraph 7 of Article 22 of the Covenant of the League of Nations and Article 6 of the Mandate for South West Africa. In the debates in the General Assembly, for example, it was emphasized that "the essence of the Mandates System was the general exercise by the League of powers of supervision of the conduct of the Mandatory Power in the administration of a sacred trust, the concommitant of which was the League's right to receive reports from the Mandatory Power and petitions from the peoples of the Mandated Territory".1 The violations of these provisions were not in doubt. The justifications South Africa advanced for her non-compliance with her treaty obligations, based on the dissolution of the supervisory organ, were rejected by the International Court;2 and thus successive judicial rulings established L GAOR, 21st Sess., Plenary, 1419th Mtg., para. 37, per delegate from Ceylon (now Sri Lanka). I See, International Status of South West Africa, Advisory Opinion, ICJ Reports 1950, p. 128; Admissibility of hearings of petitioners by the Committee on South West Africa, Advisory Opinion of 1 June 1956; ICJ Reports 1956,, p. 23; South West Africa Cases, ICJ Reports 1962, p. 319. the legal position, which was the continuation of the legal obligation assumed under the mandate under the supervision of the United Nations.1 This means that South Africa's obligations assumed under the mandate con-. tinued. This position was overwhelmingly endorsed by the United Nations. Thence South Africa's mentioned actions were thus undoubtfully and unjustifiably violations of the provisions of the mandate. In the second category, the overall effect and purpose of the 2 apartheid system, as it developed throughout the years, and by her own admission, as practised in Namibia,3 had become unambiguously incompatible with the purpose and objectives of the mandates system; and it is a violation of Article 2 of the Mandate for South West Africa. Although in both categories it is a case of failure to fulfil contractual obligations, the distinction should nevertheless be drawn for the actions of the United Nations to be properly appreciated. For, if any, desirability for prior judicial determination could be relevant, perhaps only to the second category.4 Thus the question of material breach should be viewed from these two categories. I For the question of succession to the supervisory functions, see supra Chapter III and infra p. 318, note 3. 2 The point should be noted that in 1919 when Namibia was assigned to South Africa the "colour bar" (now apartheid) policy of South Africa was known; but by then it had not developed into a policy for total subjugation in all fields of life of the indigenous people by the white settlers. This became more manifest after 1948 when the Nationalist Party came to power in South Africa. 3 South West Africa Cases, Pleadings, Vol. III. 4 Even then the contradiction between apartheid policy of South Africa and the mandates system had become so apparent that any judicial organ would not, in any case, have done othe wise but to note that fact. Indeed, of the six judges who considered the question of apartheid in 1966, the majority of 5 to 1 thought that the apartheid policy violates the provisions of the mandates system; these were: Wellington Koo, South West Africa Cases, Dis. Op., ICJ Reports 1966, at p. 235; Tanaka, Dis. Op., ibid., p. 315; Padilla Nervo, Dis. Op. ibid. p. 464; Forster, ibid., Dis. Op., p. 483; Mbanefo, Dis. Op. ibid., p. 490; and only Judge Ad Hoc Van Wyk found for apartheid, Sep. Op., ibid. p. 179. It will be observed that this was the only occasion that the issue was actually argued.

313 The evidence for the second category is abundant and overwhelming. The significant evidence is in the shift in the theoretical foundations for imposition of foreign rule, and thus the justification for decolonisation. Whereas the pivot of the apartheid system is to retain all powers, at all times and in all facets of the State in the hands of the white settlers. The architect and exponent of the apartheid system, Dr. Hendrik Verwoerd, explained the purpose and the objectives of the apartheid system as follows: "We want to keep South Africa white ... keeping it White can only mean one thing namely White domination, not leadership, not guidance, but control, supremacy. If we are agreed that it is the desire of the people that the White man should be able to continue to protect himself by White domination ... we say it can be achieved by separate development."1 The.purpose and objectives of the apartheid system as applied in Namibia remained unchanged. At the time of the revocation of the mandate of South Africa, Namibia was the only mandated territory which had not made any progress toward the realization of the principle of selfdetermination, either through the placement under the trusteeship system or through the development of democratic institutions.2 In the debates in the General Assembly leading to the revoca.tion of the mandate of South Africa to administer Namibia the legal dimension of the problem was generally appreciated and relied upon.3 The debates 1 Republic of South Africa. House of Assembly. Debates, Vol. 5, col. 242, 25 January 1963; see further, Namibia Advisory Opinion, ICJ Reports 1971, Separate Opinion of Vice-President Ammoun, p. 67, at p. 82. 2 It has beenn oted that even in 1919 self-determination was the objective of the mandates system, see supra Chapter I. 3 It should be stressed that reference to legal principles in the debates in the General Assembly does not make such decisions per se of higher legal significance than others; however, it demonstrates the legal sound bases of the decisionr taken, and makes the decision itself thus sound in law and therefore likely to be obeyed by most of the Member States. The importance of the appreciation of the legal dimension of a question is in the conviction of the Member States of the correctness of their decision.

314 1 were opened by Ethiopia and Liberia, and these two referred substantially to their arguments at the International Court in the South Weit Africa Cases. The South African position in these debates was presented by the same team as at the Hague.2 On the issue of violations of the provisions of the Covenant of the League and of the Mandate for South West Africa the force of the general principles of international law was particularly emphasized to support the action sought. For example, Liberia argued: "The 195U Advisory Opinion, reaffirmed in the 1962 Judgment, ruled that the Mandate is a 'treaty or convention in force', as well as an international institution regulated by international rules. It is a universally accepted principle, both in domestic and international law, that material breach by one party to an agreement entitles the other party to invoke breach as a basis for the termination of the agreement. This principle recently has been reaffirmed by the International Law Conission in its Draft on the Law of Treaties".3 Thus the action urged upon the General Assembly was put on a sound legal basis. The legality of the action proposed was stressed by many delegates. For example, the delegate from the Netherlands argued that "every party to a treaty or to an agreement has the inherent right to terminate that treaty or that agreement in case of a material breach by the other party. That right can, in this case, a fortiori be claimed by the United Nations as the successor to the League of Nations in view of the violation of the stipulations of the Mandate Agreement". 4 Thus a great number of the 1 GAOR, 21st Sess., Plenary, 1414th Mtg., paras. 14 and 39 resp. 2 The South African case was presented by Mr. De Villiers, who led the legal team of South Africa at the Hague in the South West Africa Cases, and he used substantially the same argument as at the Hague, ibid., 1417th Mtg , paras. 1-97. 3 Ibid., 1433rd Mtg., para. 93. 4 Ibid., 1454th Mtg., para. 96. The same legal arguments were used by other delegates, eg, Ceylon (now Sri Lanka) ibid., 1419th Mtg., para. 37; Norway, ibid., 1429th Mtg., para. 83; United Kingdom, ibid., 1448th Mtg., para. 49 to cite only a few.

31 delegates saw the reason for the revocation of the mandate of South Africa to administer Namibia as the "continuing material breach of obligations incumbent upon the mandatory power." On the first category the Member States were convinced that by her attitude, stated policy and proved actions, South Africa was not desirous to preserve in any meaningful manner what was essential to the objectives and purpose of the mandates system, let alone being desirous to develop the territory to the reali::ation of the principle of self-determination. In the second category, and additional to the first, the case for the revocation of the South African mandate was also based on the norms tLe United Nations had developed in the field of decolonisation.2 For instance, it was argued that "as a Non-Self-Governing Territory, whether mandated or not, South West Africa comes under the provisions of the Declaration (on Decolonisation) .... And further stated that the administration of the territory by South Africa had been contrary to the sacred trust, and that her "actions have proved that it no longer qualified to merit the trust of the international community".4 It was stressed that the apartheid policy was incompatible with the overall 1 Ibid., 1439th Mtg. para. 73, per delegate from the USA; there was generally no weighty argument against this position, South Africa argued mainly on the lines that she was no longer bound by the supervisory provisions of the mandate since the demise of the League, ibid., 1417th Mtg. paras. 1-97; The legal defect of such argument was aptly demonstrated by the International Court on successive occasions, see infra p.318, note 3. Brazil also dissented from the general position arguing that the mandates were not terminable or revocable during the time of the League, ibid. 1427th Mtg. paras. 133-154, but immediately above the opposite has been conclusively demonstrated. 2 See supra Chapter IV. 3 GAOR, 21st Sess., Plenary, 1414th Mtg., para. 121, per delegate from Guinea. 4 Ibid., 1417th Mtg , para. 107, per delegate from India. objectives of the mandates system as well as the principles of international law relating to decolonisation, and thus the rationale for the action sought was to "avoid the dangerous contradictions which consist in condemning South Africa for apartheid while placing in its hands the fate of an entire people on which it practises segregation completely undisturbed, the passivity of the international organisations amounting to complicity".1 The General Assembly was thus to some extent implementing its own norms. The doubt as to the legal validity of General Assembly's decision to revoke the mandate appears to result from considering the second category as the only ground for the action taken. But as has been shown that was not the only ground relied upon; furthermore, in certain instances, General Assembly resolutions are not without legal significance.3 From the substantive elements of the two categories on which the revocation of the mandate was based, it was, thus, the second category to which France objected.4 But, for the first category there was no need to refer to the Declaration on Decolonisation. It seems that if the General Assembly wanted complete affirmative votes, without abstention, it should have relied on the first category.5 1 Ibid., 1429th Mtg., para. 143, per delegate from Algeria. 2 Rosalyn Higgins, "The International Court and South West Africa: The Implications of the Judgment", in an International Commission of Jurists' Publication, South West Africa: The Court Judzment. Geneva, (19677), unnumbered, (section V). 3 See supra. Chapter IV. 4 France "considers that the very special case of South West Africa has nothing to gain from being linked with a general questionable text (Declaration on Decolonisation) of this kind". GAOR, 21st Sess., Plenary, 1454th Mtg., para. 330. 5 See the emphasis put on this point by the delegate from the USA, ibid., para. 334.

However, it would be observed that in the process of the-development of the principles of decolonisation the General Assembly at that stage had passed from the phase of trusteeship system, that is, international supervision, to the phase of the application of the principle of selfdetermination to all dependent territories, and without pretext of the political, economic or educational unpreparedness. Therefore, the second category was not only not discarded but it was greatly emphasized.1 It may be noted in conclusion on this point that since the principle that an innocent party to a treaty may unilaterally abrogate it due to prior violations by the other party is a principle basically founded on equity and good faith. It appears that its operation may be nullified by unconscionable acts on the part of the innocent party, or on some equitable basis.2 For example, undue delay may lead the innocent party to forfeit his right to denounce the treaty; nor, it appears, would the innocent party be allowed to unilaterally abrogate the treaty if he had already benefited from it to the disadvantage of the other party.3 1 Eg, nothing was stated in the preamble about material breach, only the second category was emphasized, see preambular paras. 1, 5, 6 and 7 of GA Resolution 2145 (XXI). But as has been demonstrated by the numerous quotations from the debates in the General Assembly, it was clearly understood that the revocation of the mandate was also based on the material breach by the mandatory Power of the obligations incumbent upon her. 2 In the International Law Comnission the view was expressed by the Special Rapporteur that where bLeach resulted from the provocation of the innocent party, then in that case probably there is no material breach. Yearbook of the ILC, 1966, 832nd Mtg., p. 65, para. 6. 3 It seems the International Court indicated unjust enrichment as a limitation to the operation of this right, although in this case since it was not on all fours an issue of material breach, perhaps more as an obiter dictum; The Fisheries Case, (United Kingdom v Iceland) Jurisdiction, Judgment, ICJ Reports 1973, p. 3; see also, Arie E David, The Strategy of Treaty Termination: Lawful Breaches and Retaliations. New Haven Yale University Prcss, 1975, p. 229 et seq.; Lord McNair, op. ci., pp. 570-571.

These limitations to the use of this right do not seem to apply to the unanimous decision taken by the General Assembly to unilaterally revoke the mandate of South Africa to administer Namibia. In the first place, the mandates were not intended to benefit the mandatory States. In the second place, the United Nations derived no benefit to itself as a result of the revocation. Thirdly, the United Nations did not relinquish its obligations - supervision, hearing of petitioners and the responsibility to determine any changes in the international status of the territory - on the contrary it acquired more obligation, anmely, to administer the territory until independence is achieved. Indeed, it was not a question of terminating the agreement, but only of revoking the right and duties of the other party.2 3 THE LEGAL SIGNIFICANCE OF THE GENERAL ASSEMBLY RESOLUTION 2145 (XXI) We have shown in the foregoing sections that the mandatcs were terminable and revocable; and the Council of the League had competence in appropriate circumstances to take the necessary measures. The assumption by the General Assembly of the United Nations of the supervisory functions of the League of Nations was repeatedly judicially approved by the International Court.3 Furthermore, constitutionally the 1 See supra p. 292, note 2. Thus the alleged national prestige which was considered to be derived from possession of colonies during that era of colonisation or the strategic advantages the mandated territories were considered to afford to certain mandatory Powers (see supra Chapter I), have no legal significance to the interpretation of the mandates as legal instruments. 2 This fact was greatly emphasized in the debates in the General Assembly, see supr . p. 316, note 5. 3 International Status of South West Africa, Advisory Opinion, ICJ Reports 1950, p. 128 at p. 136 et seq.; Admissibility of hearings of petitioners by the Committee on South West Africa, Advisory Opinion of 1 June 1956; ICJ Reports 1956, pp. 27-28, 29; South West Africa Cases, ICJ Reports 1962, pp. 332-335; see also supra Chapter III.

319 General Assembly is empowered to make a determination on any issue.I Thus the question of the validity of the General Assembly Resolution 2145 (XXI) is well founded. It does not seem that this resolution 2 could be faulted on that score. The point of contention, however, is the legal significance of Resolution 2145 (XXI) and'others based on it. The difference between validity and legal significance of Resolution 2245 (XXI) should be stressed. Admittedly, where the former is lacking the latter will not arise, then in that case it is an issue of ultra vires. But even where competence, and thus validity, is not in doubt, that does not automatically accord legal significance to the action taken and thus due observance. Competence is only one of the relevant factors which cumulatively could, in certain circumstances, operate, where it is not constitutionally excluded,3 to give legal significance to a resolution of the General Assembly which otherwise would rank only as a recommendation.4 We have shown in this study that the administration of Namibia in the context of dependent territories and peoples has been the concern of the international community since the establishment of the multi-purpose universal international organisations. Firstly, at the Versailles Peace Conference in 1919 the inhabitants of Namibia (together with those of other certain territories which became mandated territories) were accorded internationally sanctioned and protected rights; secondly, at Geneva, these rights were safeguarded and amplified; thirdly, at San Francisco the principle of international supervision and the right 1 Articles 10 and 14 of the Charter of the UN. 2 John Dugard, loc. cit. 3 Articles 10 and 14 of the Charter are not exhaustive. 4 Supra Chapter IV. of the inhabitants of mandated territories to have their countries administered in their interests were retained in an improved manner, and furthermore the goal - self-determination - was unambiguously indicated; fourthly, at New York the principle of self-determination as it relates to dependent territories and peoples, was developed into a right of international law, thus decolonisation became a phenomenon regulated by international law and a right for every dependent people; and finally, at the Hague these principles were given judicial cognizance. This was the broad legal milieu in which the question of Namibia was contested; and this fact should not be ignored when assessing the legal significance of the United Nations resolutions on Namibia. It has been contended that the actions of the United Nations in the field of decolonisation, as exemplified by the question of Namibia, draw their force partly from the legal order it has developed - the United Nations law of decolonisation. The legal significance of the General Assembly resolutions on Namibia, particularly Resolution 2145 (XXI) is, therefore, derived partly from the United Nations law of decolonisation. Secondly, these resolutions also draw their legal significance from the mandates system as measures of supervision. Furthermore, the general principles of international law do, in appropriate cases, lend legal significance to the actions of the General Assembly. Thus the General Assembly Resolution 2145 (XXI) viewed from the foregoing premises, and not only from the purview of Articles 10 and 14 of the Charter, would be observed that it has legal significance beyond the normal recommendatory nature of the General Assembly resolutions. 1 Ibid. 2 See, eg, Ingrid Delupis, International Law and the Independent State. New York: Crane, Russak and Co., Inc. 1974, p. 13.

Resolution 2145 (XXI) is an apt illustration of the legal significance of a General Assembly resolution derived from the United Nations law of decolonisation. We identified a number of features the cumulative effect of which could generate legal significance, if not force, for certain General Assembly actions. These are listed, though not exhaustively, as follows: a) competence of the international organisation, b) the objectives to be achieved, c) the addressee and/or the target, d) the degree of concreteness, e) the degree of acceptance, and f) the implementation or control mechanism. By broad interpretation of the Charter in a series of resolutions the General Assembly finally arrogated to itself the right to determine what is a non-self- governing territory; and by the same process it abolished the theoretical distinction between the non-self-governing territories and trust (or mandated) territories. Moreover, Namibia as a mandated territory fell under the purview of the General Assembly.2 Thus the question of Namibia was in the constitutive competence of the General Assembly. Indeed, the International Court considered the General Assembly as better equipped to provide a solution to the question of Namibia.3 The objectives to be achieved of the General Assembly actions were to safeguard the rights of the inhabitants acquired under the Mandate, and in the light of the subsequent development, to facilitate the attainment of independence by Namibia. These were legitimate objectives conventionally sanctioned as well as endorsed by rules relating to decolonisation of the United Nations. 1 Supra Chapter IV, Sec. 2. 2 Articles 77 and 80 of the Charter of the UN. 3 South West Africa Cases, ICJ Reports 1966, p. 29.

The General Assembly Resolution 2145 (XXI) was quite clear and specific in its operative parts, which were not only the cumulative conclusion of past United Nations actions in the field of decolonisation, but were equally founded on general principles of international law. Thus the addressee, specifically mentioned, South Africa, was left in no doubt as to what was expected of it, and more significantly the legality of such actions was not doubted. Resolution 2145 (XXI) was adopted with near unanimity in the General Assembly. A mechanism for the implementation of this Resolution was set up. As stated in the Resolution itself, it was the culmination of various fruitless efforts to enlist th'e co-operation of the mandatory power, which led to the adoption of this Resolution as the best means to safeguard the legal interests and rights of the inhabitants of Namibia. The foregoing features show that the General Assembly intended its decision to be implemented within the legal framework of its 'legal order' concerning decolonisation. We should point out that the legal significance of Resolution 2145 (XXI) is probably only partly derived from the 'legal order' of the United Nations relating to decolonisation. Partly the legal significance of Resolution 2145 (XXI) is probably derived from the relevant provisions of the Covenant of the League, the Mandate for South West Africa, and the Charter of the United Nations. It has been shown in the preceding sections that the mandates were terminable and revocable; that the Council of the League was competent unilaterally to terminate or to revoke the mandate due to gross violation by the Mandatory State of the provisions of the mandate. A difference, though fine, could be maintained between purely supervisory actions derived from the conventional provisions and actions derived from general principles of international law relatihg to the law of treaties. It would appear that the unanimity rule would apply mainly to the former. To the latter where gross violation of the provisions of an agreement is involved, when it is no longer solely a question of supervision, the general principles of international law would apply. This also is strengthened by the objective and purpose of the regime created. For the application of the unanimity rule in all instances would have turned the mandates system into annexation. It has been consistently held by the International Court that upon the demise of the League its supervisory functions passed on to the United Nations.2 This study has also shown that South Africa was totally opposed to the United Nations supervision of her administration of Namibia. South Africa's main aim was to finally annex Namibia. In the face of suuh material breach of the provisions of the mandates system, the General Assembly in order to protect the relevant conventional provisions decided to revoke the mandate of South Africa to administer Namibia. Furthermore, as an exercise of its supervisory functions the General Assembly Resolution 2145 (XXI) legal significance is thus drawn from the relevant provisions of the I Quincy Wright considered that unanimity is not necessary for revocation, op. cit. p. 521. In 1955 the Court considered the rule of unanimity and held that it was inapplicable in the system of the UN, South West Africa - Voting Procedure, Advisory Opinion of 7 June 1955: ICJ Reports 1955, p. 74; And in the Namibia Advisory Opinion, ICJ Reports 1971 at p. 49, the Court held: "To contend, on the basis of thie principle of unanimity which applied in the League of Nations, that in this case revocation could only take place with the concurrence of the Mandatory, would not only run contrary to the general principle of law governing termination on account of breach, but also postulate an impossibility". 2 See, eg, International Status of South West Africa, Advisory Opinion, ICJ Reports 1950, pp. 136-138.

Covenant of the League, the Mandate for South West Africa and the Charter of the United Nations.I In matters of dependent territories with international status, the Charter of the United Nations empowers the General Assembly to take legally binding decisions.2 This is an area in which the General Assembly has exclusive competence, like in budgetary matters, and thus it could take binding decisions. The conventional provisions which empower the General Assembly to take authoritative decisions are, where not otherwise provided, also reinforced by the general principles of international law. It has been showm that the general principles of international law relating to the law of treaties, now embodied in the Vienna Convention on the Law of Treaties, which permit the innocent party to terminate or to suspend the agreement due to prior material breach by the other party were also applicable to the Covenant of the League and to the Mandate for South West Africa. In this respect the legal si'nificance3 of the decision of the General Assembly is also derived from the general principles of international law. I In his separate opinion Judge Padilla Nervo expressed the same view, though not sufficient emphasis is placed on the legal significance, in view of the reference to the validity of the resolution; nevertheless, he stated: "To the extent that resolution 2145 (XXI) was adopted by the General Assembly as the supervisory authority and as a party in contractual relationship with South Africa arising from the Mandate, the resolution is constitutionally valid on its own, and therefore legally effective". Namibia Advisory Opinion, ICJ Reports 1971, p. 113; see also Judge Onyeama's Separate Opinion, ibid., p. 146. 2 Article 87 of the Charter ol the UN; and Judge Tanaka stated: "The acceptance of this power and with it the responsibility by the United Nations does not appear to constitute ultra vires because the matter concerning the tutelage of backward peoples without doubt lies within the scope and limit of the objectives of the United Nations". South West Africa Cases, Dis. Op., ICJ Reports 1966, at p. 275. 3 It seems the combination of these fpctors gives Resolution 2145 (XXI) and subsequent others on the same subject legal force equivalent to any accorded to General Assembly resolutions on matters of its exclusive competence, eg, the budget.

There is also another general principle of international law which reinforces the authority of the General Assembly to take authoritative decision, in its conventional obligations, namely, the principle of good faith. The principle that treaty obligations1 should be fulfilled in good faith and not merely in accordance with the letter of the treaty has long been recognized by international tribunals. The Permanent Court of Arbitration in 1910, for example, stated: "Every state has to execute the obligations incurred by treaty bona fide, and is urged thereto by the ordinary sanctions of law in regard to observance of treaty obligations". 2 The International Court in its advisory opinion on the International Status of South West Africa in 1950 was reiterating this general principle of treaty law, when it stated that South Africa acting alone had no competence to modify the international status of Namibia.3 And Judge De Castro in his separate opinion in the Namibia Opinion in 1971 stressed that "all treaties must be interpreted so as to exclude fraud and so as to make their operation consistent with good faith".4 South Africa's actions and attitude with regard to the mandated territory could lead to the view that she did not attempt to implement her treaty obligations in good faith; and "action not in good faith must be considered as a I The weight of judicial opinion, despite innuendoes in 19b6 to the contrary, is that the Mandate for South West Africa is still a treaty in force. See further supra Chapter III. 2 The North Atlantic Coast Fisheries Case (Great Britain v United States), The Hague Couct Reports, 2 vols. James Brown Scott (ed.), Carnegie Endowment for International Peace, New York: Oxford University Press, 1916, 1932, Vol. 1, p. 141 at p. 167. 3 International Status of South West Africa, Advisory Opinion, ICJ Reports 1950, at p. 141 et seq. 4 Namibia Opinion, ICJ Reports 1971, p. 183. breach of international law",1 which the United Nations2 is obliged to redress. We have shown that very early on South Africa attempted to give the impression that she had complete sovereignty over Namibia. This was persistently refuted by the League of Nations.3 Furthermore, despite the fact that annexation, South Africa's wish, was purposedly excluded at the Versailles Peace Conference, South Africa continued in her attempts to legally annex Namibia as the fifth province.4 As shown earlier,5 even the materials submitted in support of her application to incorporate Namibia were of a doubtful nature; and the heading of the item requested to be placed on the agenda of the General Assembly was subsequently changed to give an impression of disinterestedness.7 Whereas that was not the case, a clear case of an attempt to lead the other Member States on. 1 Sir Gerald Fitzmaurice, "Hersh Lauterpacht - the Scholar as Judge", BYIL vol. XXXVIII (1962) p. 9. The conclusion of Fitzmaurice was based on a statement in Lauterpacht's Opinion in the Case of Certain Norwegian Loans, Judgment of 6 July 1957: ICJ Reports 1957, p. 34 at p. 53, to the effect that: "Unquestionably, the obligation to act in accordance with good faith, being a general principle of law, is also part of international law". 2 In accordance with paragraphs 2 and 3 of Article 2 of the Charter of the UN. 3 See above. 4 Even General Smuts, who was involved in the drafting of Article 22 of the Covenant of the League, claimed erroneously that a mandate was just as good as annexation, see supra p. 301, note 4. 5 See supra Chatper IV, Sec. I. 6 See ibid. particularly p. 127, note 2. 7 See ibid. p. 121, note 3 and p. 130,,note 3.

The question that was never posed is why did the Government of South Africa refuse to place Namibia under the Trusteeship System. What occupied the international community was only whether there was legal obligation for South Africa to place Namibia under the Trusteeship System. However, the actions of South Africa do indicate possible reasons for her refusal, which she covered with legal arguments. As observed, South Africa, because of her apartheid policy, was opposed to the Trusteeship Council.1 For South Africa could not accept a different, non-discriminatory, administration in Namibia, which the Trusteeship Council would have insisted upon. Such an administration in Namibia would have had a bad impact on apartheid in South Africa itself. And, of course, South Africa cherished the hopes of one day to annex Namibia. These then were the real reasons for South Africa's refusal to place Namibia under the Trusteeship System. These actions of South Africa had no relevance to the "material and moral well- being and the social progress of the inhabitants" of Namibia. Of course, the South African claim that she would have "to protect the inhabitants of" Namibia "from the United Nations",2 is a baseless and legally unfounded assertion. It has emerged from this study, therefore, that South Africa used the mandate for an entirely different purpose. For these reasons the General Assembly resolutions on the question of Namibia, some of them at least, for example, Resolution 2145 (XXI), are, thus, in their effect in a different category than ordinary recommendatory resolutions. Due to these extra-constitutive factors such 1 Ibid., p. 121, note 3 and p. 130, note 3. 2 Supra Chapter V, p. 204, note 1. resolutions of the General Assembly as features of the process of 1 decolonisation of Namibia are of legal significance. Within the United Nations and its legal order relating to decolonisation these resolutions seem to have legal significance upon the Member States as Members, and thus to that extent are legally binding upon them. 1 Cf John Dugard, loc. cit. p. 94 ff., where the powers of the League of Nations to revoke the mandates arc confirmed, but the legal force of the General Assembly's actions (resolutions) is denied on the pure institutional constraints. The interplay of general principles of international law upon conventional provisions is not realized. Also the logical conclusion of the General Assembly's actions as exercises in the supervision of a territory with an international status is not perceived.

CHAPTER VIII THE NAMIBIA ADVISORY OPINION I INTRODUCTORY COMMENT The Namibia Advisory Opinion was the sixth decision by the International Court of Justice on the question of Namibia.2 Unlike the previous occasions when various legal issues relating to the scope and content of the mandate, its operation and adaptability, and the objectives and purpose of the institution, were involved; that is, stated generally, interpretations of the various relevant legal instrument; on this occasion, as a result of the non-compliance of South Africa with the decolonisation actions of the United Nations, the Court was requested to indicate the legal obligations devolving upon the Member States in such a situation. To the extent that the principles of international law relating to decolonisation were largely developed, concretised and amplified by the United Nations, the question posed by the Security Council appears to imply endorsement of the validity and legality of the actions and resolutions that the Court was asked to advise on. To that extent it 1 Legal Consequences for States of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16. hereafter referred to as Namibia Opinion, ICJ Rep. 1971. 2 See infra Table I. seemed as if the Security Council imposed limitations to the judicial function of the International Court. The inherent limitations, resulting from the formulation of the question posed, imposed by the requesting organ in advisory opinions seems, therefore, to have been more acute in the Namibia Opinion. In fact, these were vigorously canvassed, the Secretary-General of the United Nations in his written statement to the International Court made it clear that the question posed did not question the revocation of the mandate of South Africa to administer Namibia nor the assumption by the United Nations of the administrative responsibility.1 Despite the Court's vigorous defence of its judicial independence to "have full liberty to consider all relevant data available to it in forming an advisory opinion",2 it was nevertheless conscious of the fact that it could not act as a reviewing tribunal.3 The point cannot be disputed that as a principal judicial organ, the International Court is legally free to consider any issue it deems relevant to the rendering of the opinion sought; particularly any legal principle derived from the interpretation of the Charter on which the decision taken was based.4 In the Namibia Opinion the maintenance of a proper balance between what is judicially necessary to consider without assuming the status of a reviewing organ on the one hand, and on the other, not to kow-tow to the political considerations of the political organs of the United Nations, proved rather problematic. This was due mainly to the fact that the 1 Namibia Opinion, Pleadings, Vol. I, pp. 75-76. 2 Certain Expenses of the United Nations (Article 17 paragraph 2 of the Charter), Advisory Opinion of 20 July 1962; ICJ Reports 1962, p. 151 at p. 157;and see further Onyeama, Sep. Op., Namibia Opinion, ICJ Reports 1971 at p. 144. 3 Ibid., p. 45, para. 89. 4 See, Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion: ICJ Reports 1948, p. 57 at p.61. legal principles the General Assembly and the Security Council relied upon were largely of their own creation. Thus the evaluation of the validity and the legality of not only the principles relied upon but also of the measures taken to implement the decisions reached would have placed the Court in a position of reviewing organ. Yet that was judicially relevant. However, if the issue was properly perceived as an issue of decolonisation such a dilemma would not probably have arisen. Perhaps it was in the realization of this cleavage that the Court simply stated that "a binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence". The general objective was stated without analysis of the legal bases thereof. The opinion of the Court, though unchallengeable in broader terms as amplifications of the principles relating to decolonisation, however, because of its reliance on such broad objectives without meticulous examination of the relevant principles and their legal scope and content, appears to hang in the air. We have shown the scope, content and the manner as well as the plane at which the activities of the United Nations could generate principles of legal significance. Thus viewed in that perspective the significance of the Namibia Opinion to the concretization and amplification of the principles of international law concerning decolonisation would be realized. On the theoretical plane there was a divergent of opinion as to the legal significance of the decisions of the General Assembly and the Security Council, in instances where constitutional enforceability is not provided for. Indeed, it was the legal force of the norms on decolonisation developed by the United Nations, as exemplified by the question of Namibia, which were considered that the Security Council wanted the International Court to take cognizance of without more. Whereas, on I Namibia Opinion, ICJ Reports 1971, p. 54, para. 117. the other hand the source for such legal significance of United Nations decisions posed a theoretical problem. It has been shown above1 that norms developed by the United Nations,at least in the field of decolonisation, have legal significance upon the Member States as these form the United Nations law of decolonisation. To that extent, this cleavage in the Namibia Opinion could be resolved if considered from the point of view of decolonisation. The interests of South Africa in the Namibia Opinion which some of the judges, perhaps more than warranted, perceived, was reflected in a number of issues; judge ad hoc for South Africa; request by South Africa to submit more factual information; a proposal for a plebiscite to be conducted in Namibia; and recusal of some of the judgesa These issues we will now consider. The theoretical bases for the institution of judges ad hoc appears to be the requirement for good administration of justice which necessitates that parties must be equal before the law as well as being the 2 embodiment of the principle of equality of states. It seems that it is for these reasons that the conclusion is made that "it would follow that in the case of all other disputes (those between a State and international organisation or individual, or international organisation and individual) there could be no question of a judge ad hoc being appointed".3 Thus, in the Namibia Opinion if the Court allowed judge ad hoc for South Africa the other party, in this case the United Nations or the people of Namibia, would have been placed in a position of inequality.4 It was probably in the realization of this principle of equality before the Court I See supra Chapter IV. 2 For other grounds see, eg, Kenneth James Keith, The Extent of the Advisory Jurisdiction of the International Court of Justice. Leyden, Sijthoff, 1971, pp. 182 et seq. 3 Ibid., pp. 184-185. 4 Already a case involving the inequalities of the apartheid system. that prompted Vice President Ammoun to indicate that if South Africa was allowed a judge ad hoc then Namibia too should have been allowed one. Of course, where the advisory opinion sought relates to a dispute already pending between States, then judges ad hoc statutorily should be allowed when requested.2 Unlike the present Court the Permanent Court of International Justice allowed appointment of judges ad hoc in advisory opinion's proceedings in many instances.3 This is probably more due to the fact that the Permanent Court unlike the present Court was frequently used by the organs of the League of Nations in the settlement of disputes between States. Although, the rejection4 of the application of South Africa to appoint a judge ad hoc may seem as a hindrance to good administration of Justice; it appears, however, from the foregoing consideration to be legally sound. The views which favoured the application of South Africa for a judge ad hoc were on the whole based on consideration of equity. The interest of South Africa in the case was considered as special (above all other States). And thus, that justice is not only done but seen to be done a judge ad hoc for South Africa was considered jurisdictionally 1 Namibia Opinion, ICJ Reports 1971, Sep. Op., p. 68. 2 Articles 68 of the Statute and 89 of the Rules (1972) of the Court. 3 Eg, judges ad hoc were allowed in the following advisory proceedings: Jurisdiction of the Courts of Danzig, Series B. No. 15, 3 March 1928; The Greco-Bulgarian Communities, Series B. No. 17, 31 July 1930; Railway Traffic between Lithuania and Poland, Series A/B. No. 42, 15 October 1931; Access to, or Anchorage in, the Port of Danzig, of Polish War Vessels, Series A/B. No. 43, 11 December 1931; Treatment of Polish Nationals and other Persons of Polish Origin or Speech in the Danzig Territory, Series A/B. No. 44, 4 February 1932; Interpretation of the Greco- Bulgaria Agreement of 9 December 1927. Series A/B. No. 45, 8 March 1932; and the ICJ allowed judge ad hoc in the Western Sahara, Advisory Opinion of 16 October 1975; ICJ Reports 1975. 4 Namibia Opinion, Order of 29 January, ICJ Reports 1971, p. 12. desirable.1 It does not seem that in the Namibia Opinion there was a jurisdictional disparity. The difference of opinions which led to the request for an advisory opinion was broadly based, between the principles. of international law relating to colonisation and decolonisation. The former being reflected by the claims of South Africa and the latter by the United Nations. In that instance, in any case, the scales of justice are jurisdictionally weighted on the side of the sovereignty of States. The special or peculiar interests of South Africa in the Namibia Opinion which some judges saw related to her alleged right to administer Namibia without any international supervision and also without any international supervision and also without the implementation of the principle of self- determination as developed and concretized by the United Nations. In short, such interests were colonisation interests. It, thus, seems that the emphasis of equitable considerations for the approval of the application of South Africa for a judge ad hoc was misplaced. South Africa's request for permission to submit further information and her proposal to hold a plebiscite in Namibia under the joint supervision with the Court, both proposals rejected by the Court,2 were attempts to focus the case on the validity and the legal significance of the actions taken by the United Nations. Doubtless, that would have turned the International Court of Justice into a reviewing organ. 1 Ibid., Separate Opinion of Judge Onyeama, ICJ Reports 1971 at p. 140. 2 Ibid., pp. 57-58, para. 132.

On the other hand4 it seems, that some judges considered these proposals as indications of South Africa's special and vital interest in the case. This is the reverse of what one may term the rule2 in the Eastern Carelia case.3 The permanent Court turned down the request for an advisory opinion in Eastern Carelia on the grounds that vital information would not be available because one of the parties to the dispute was not participating. However, the application of this rule in reverse is not unforced. In the Namibia Opinion there was no danger of a decision on incomplete vital facts. On the contrary, all the relevant important facts were presented before the Court, or could be presumed to have been, in the South West Africa Cases.4 Furthermore, it would be noted that the Court was in the process of revising its Rules.5 And the length of time proceedings before the Court took, invariably in the contentious cases, but to a lesser extent in the advisory opinions, was one of the main criticisms levelled at the Court.6 1 See, eg, Ibid., Onyeama, Sep. Op., pp. 139-140, but the proposal for a plebiscite was not supported. 2 "It appears now to be very doubtful whether there would be available to the Court materials sufficient to enable it to arrive at any judicial conclusion upon the question of fact". Status of Eastern Carelia, Series B. No. 5, Advisory Opinion, 1923 at p. 28. 3 However, the Eastern Carelia Case, ibid., pp. 27-28, was relied upon by South Africa in her argument on impropriety to give an advisory opinion on a dispute actually pending between States. See, Namibia Opinion, ICJ Reports 1971, pp. 22-23. 4 12 vols. of Pleadings, etc. 5 The exercise started in 1967, see UN Doc. A/8382, p. 130. 6 See ibid., also the protracted proceedings in the South West Africa Cases were still fresh in the memory, for a Court, perhaps anxious to avoid criticism, to embark upon any time consuming exercise.

Thus, these proposals which would have lengthened the proceedings, since not absolutely vital for the judicial determination of the question posed, could not be favourably considered. As the Rules of Court were subsequently amended, the International Court, in its endeavour to expedite proceedings, could indicate to the parties the points on which it had sufficient information or on which more information would be needed.2 Also the Court to facilitate the work of the requesting organ, the Rules of Court were amended to enable the Court to endeavour to speed up its proceedings in advisory opinions where the "request necessitates an urgent answer" or where the Court considers that "an early answer would be desirable".3 From the foregoing analysis it is, thus, unfounded to censure the Court for its refusal to accede to these proposals. At any rate the decision of the Court on this point was an indication of the future deve lopmen t. Another "preliminary objection" to be noted in this regard is the objection raised by South Africa to the participation of three of the judges. This application for the recusal of the three judges was based 1 As it turned out, South Africa took a whole month to present her oral statement and, in fact, finally the President of the Court had to ask the representative of South Africa when he proposed to complete the oral statement. South Africa's legal team started on 16 February 1971 and completed on 17 March 1971, see, Namibia Opinion, Pleadings, Vol. II. 2 Article 57, paragraph I, of the Rules of Court of 1972. In the Namibia Opinion the Court considered that it did not need further information, see, ICJ Reports 1971, pp. 57-58. 3 Paragraph 2 of Article 87 of the Rules of Court of 1972. These amendments were not in operation when the Namibia Opinion was considered; however, the concern and criticisms of the States were already known; and it is also likely that the Court had already considered, perhaps tentatively, the amendments it introduced in 1972. on the general principle of law and on the Statute of the Court,I that a judge should not sit on a case in which he had previously indicated an opinion or an interest.2 And, of course, South Africa had a precedent.3 Since the rationale of this requirement is impartiality, in an advisory proceedings where parties are not, at times, clearly discernible, and in this case the Court refused to accept the plea that the case involved a pending dispute between South Africa and other States, it would be difficult to support an application for recusal purely on impartiality resulting from previously expressed views. This could probably be the view taken by the Court. Again, it would be observed that in the case of Judge Padilla Nervo an application for recusal on the same grounds was 4 rejected in the South West Africa Cases. The only precedent of recusal in advisory opinions was on other grounds than previously expressed opinion. In that case it was also self recusal. "A Judge, in a letter addressed to the President of the Court, and which referred to Article 24 of the Statute as applied to advisory proceedings, stated that in his opinion there were certain considerations of a personal nature which 1 Article 17 of the Statute of the Court is broadly worded: "or in any other capacity". 2 Namibia Opinion, Pleadings, Vol. 1, pp. 439-440. 3 See Yearbook of the ICJ, 1950 - 1952, p. 89. 4 South West Africa Cases, Order of 18 March 1965, ICJ Reports, 1965, p. 3, Judge Padilla Nervo was the only Judge not participating when this order was taken. It seems that on the other hand Judge Khan rescued himself, because, before he was appointed to the Court, he was approached to be the judge ad hoc for Ethiopia and Liberia. If that was the reason, it seems to have been rather a weak reason. It does not seem that it could be supported on a general principle of impartiality nor by the statutory provisions. In the Namibia Opinion, however, the main objection was with regard to Judge Horozov, see, Order No. 3 of 26 January 1971, ICJ Reports 1971, p. 9. In any case, it seems the Court feared the repetition of the SouthlestAfrica Cases, Second Phase, where by recusal, a possible majority was turned into a minority. made it incumbent upon him not to take part in the examination of this case". 2 THE CONFLICT BETWEEN DECOLONISATION AND COLONISATION IN INTERNATIONAL LAW The mutual exclusiveness between colonisation and decolonisation appears to be reflected in the legal principles relating thereto. Acceptance or rejection of decolonisation is, by and large, on the theoretical plane the moral justification or condemnation of colonisation. The legal principles involved are thus interpreted restrictively to impede or liberally to expedite the process of decolonisation. The Namibia Opinion more than the previous opinions and judgments, because of its focus on the consequences resulting from the decolonisation measures, seems to illustrate this dichotomy aptly.2 Indeed, the question of Namibia is basically a decolonisation issue; although the question posed: "What are the legal consequences for states for the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 276 (1970)7" 3 may not on the surface seem so. However, the Court was basically asked to state the legal obligations of the Member States to the United Nations' attempts4 at decolonisation by resolutions. 1 Yearbook of the ICJ, 1956 - 1957, p. 100, the judge was Judge Basdevant, father of Professor Bastid, the Tribunal's President (United Nations Administrative Tribunal) Pleadings, p. 281; see also, Kenneth James Keith, op. cit., p. 193. 2 See infra Table I. 3 Namibia Opinion, ICJ Reports 1971, p. 17. 4 In the early stages of the United Nations involvement in the question of Namibia, due to the unclarity of the legal principles relating to decolonisation, the activities of toe UN in this regard could be considered as attempts. However, by the middle of the mid 1960s discernible legal principles relating to decolonisation had emerged and concretized. Thus, the use of the word 'attempts' is with reference to the evolutionary effects. Table I : Judicial Chart of the Namibia Question in Relation to Decolonisation Cases Parties Issues Decisions and Voting Ratings to Decolonisation 1950 G.A. International status S.W. Africa is a territory Highly Advisory Resol. of Namibia under international man- relevant Opinion 338(IV) date; Mandatory can't modify this unilaterally; Chapter XII of the Charter is applicable (unanimously on all these points); S.A. is not under legal duty to place the territory under trusteeship system (small majority of 8-6); S.A.'s obligations under Art. 22 of the Covenant continue (12-2).* 1955 G.A. Interpretation of Rule F was a correct Marginal Advisory Resol. 1950 A/O; Voting interpretation of 1950 Opinion 904(IX) procedure of the A/O, (unanimously) G.A. 1956 G.A. Interpretation of Grant of oral hearing Relevant Advisory Resol. 1950 A/O, the inhab- to petitioners perOpinion 942A(X) itants to be heard missible, (8-5) Judgment Ethiopia Preliminary object- The Court has juris- Relevant of &Liberia ions - challenged diction and the Appli1962 v South jurisdiction of the cants have legal inAfrica Court, viz mandate was terests in the case, "*not a treaty or con- all four objections vention in force", and rejected (8-7) the locus standi of the Applicants. Judgment Ibid. Mandate incompatible "Antecendent matter"e, Important of with apartheid; modi- applicants have no legal decolonisation 1966 fication of the Man- interests in the merits stage (but the date without UN's con- of the case. (7-7, the Court sent; failure to pro- casting vote of the declined) mote the material and President made the vote moral well being and 8-7). social progress of the inhabitants of the territory. Namibla S.C. Legal consequences re- S.A. is under obligation The most Advisory Resol. suiting from S.A.'s to withdraw her illegal highly Opinion 284 illegal presence in administration (13-2); relevant in of 1971 (1970) Namibia, as a result Members of the UN are un- the six of UN decolonisation der obligation to recogn- decisions measures. ize the illegality of ~S.A. (11-4)* The two dissenting judges McNair and Read held however that the substantive international obligations of S.A. continued; but her former accountability to the League of Nations had lapsed and had not been transferred to UN. - 11 - IV

The decolonisation features of the question posed should not, however, be overstressed, for largely the opinion tended to drift to the familiar realm of treaty interpretation rather than to focus on the impact of the United Nations' activities with regard to decolonisation.I Nevertheless, more than any other opinion or judgment, the Namibia Opinion is very pertinent to the amplification and development of the legal principles relating to decolonisation.2 South Africa, in no doubt, as it emerged in the Namibia Opinion, the exponent of the colonisation view, argued: " ... if it is accepted that the mandate has lapsed, the South African Government would have the right to administer the Territory by reason of a combination of factors, being a) its original conquest; b) its long occupation ... In these circumstances the South African Government cannot accept that any state or organisation can have a better title to the Territory". (emphasis added).3 These claims of South Africa were untenable in international law, even at the height of the colonisation period. The right of conquest that South Africa could have acquired at that time was ousted by the principles of the mandates system.5 In any case, conquest per se does not without 1 This is not surprising, for the parties tended to emphasize the same issues that were considered in the previous opinions and judgments; see eg, the Written Statement of the Government of the Republic of South Africa, Namibia Opinion, Pleadin&s, Vol. 1. 2 See supr Table I. 3 Namibia Opinion, ICJ Reports 1971, p. 43, para 82; In her oral presentation South Africa claimed on 15 March 1971, that "it is the view of the South African Government that no legal provision prevents its annexing South West Africa", ibid., p. 43. 4 NoW it is doubtful that any State can legally acquire territorial right from conquest, see, eg, Ian Brownlie, Principles of Public International Law. Oxford: The Clarendon Press, pp. 131, 173. 5 See supra Chapter I; see also Namibia Opinion, ICJ Reports 1971, p. 43, para. 83; Separate Opinion of Judge Jessup, South West Africa Cases, ICJ Reports 1966, p.,418. formal annexation lead to acquisition of territory;1 and annexation 2 was expressly excluded at the Versailles Peace Conference, and South Africa administered Namibia only under the provisions of the mandate. The claim of 'long occupation' of Namibia by South Africa as the mode of colonisation is equally legally untenable. The occupation, which in law was an administration under an international supervision cannot create a different status from that for which it was effected. Furthermore, it is now a legally settled point that effective occupation was only applicable to terrae nullius. A fitting judicial definition of terra nullius was given recently by the International Court in the Western Sahara Advisory Opinion; the Court stated: "Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organisation were not regarded as terrae nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through occupation of terra nullius by original title but through agreements concluded with local rulers".3 Now it cannot be realistically contended that Namibia in 1915 was a terra nullius. Thus, these colonisation's claims of South Africa are legally unfounded. In contrast the International Court took cognizance of, in a general manner, the decolonisation processes of the modern time and their impact on the prfnciples of international law, and stated: 1 See, eg, Oppenheim's International Law. 8th Edition, 2 vols., H. Lauterpacht (ed), London: Longmans, Green and Co., 1955, Vol. I, p. 567. 2 See International Status of South West Africa, Advisory Opinion: ICJ Reports 1950, p. 131. 3 ICJ Reports 1975, at p. 39, para. 80; for similar view see also, Island of Palmas, Arbitration, 1928, Reports of International Arbitral Awards, Vol. II, p. 829; Legal Status of Eastern Greenland, 1933, PCIJ, Series A/B. No. 53.

"That is why, viewing the institutions of 1919, the Court must take into consideration the changes which have occurred in the supervening half century, and its interpretation cannot remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law. Moreover, an international instrument has to be interpreted and applied within the framework of their entire legal system prevailing at the time of the interpretation. In the domain to which the present proceedings relate, the last fifty years, as indicated above, have brought important development. These developments leave little doubt that the ultimate objective of the sacred trust was the self-determination and dependence of the peoples concerned. In this domain, as elsewhere, the corpus iuris Rentium has been considerably enriched, and this the Court, if it is faithfully to discharge its functions, may not ignore".1 Although, imprecise in scope and content, however, by it the International Court broadly situated the sign-posts and was thus able to indicate the direction of the legal development of the principles of international law relating to decolonisation.2 These then were the broad strata of the opposing views in the Namibia Opinion. In the traditional jurisprudential perception these conflicting views could be categorized as positivism or formalism or simply legal conservatism, as opposed to teleological or sociological approach or legal liberalism.3 In the Opinion of the Court and the separate and dissenting opinions appended thereto; the dissenting opinion of Judge Fitzmaurice is the epitome of the former, which in our context can be viewed as colonisation view (more in the form of retention than establishment). Judge Fitzmaurice in his longish dissenting opinion, in a highly formalistic approach, negates any legal principle relating to decolonisation or, it appears, even the relevance of the decolonisation processes. His opinion is an unquestionable acceptance 1 Namibia Opinion, ICJ Reports 1971, pp. 31-32, para. 53. 2 See supra Chapter V, Sec. I., Chapter IV, Sec. 3. 3 See, eg, John Dugard, "The Opinion on South West Africa (Namibia): The teleologists Triumph". South African Law Journal, 88 (1971), p. 460. of the status quo ante, hence the categorisation here as a colonisation view. In- consequence, with due respect, Judge Fitzmaurice failed to perceive violations and negation of the provisions and principles relating to the promotion and attainment of the principle of self-determination as serious breaches which could warrant revocation of the mandate.1 In a static and formalistic manner, and for that matter contrary to the historical background to the establishment of the mandates system, with due deference, Judge Fitzmaurice considered the objectives and purpose of the mandates, or broadly stated territories with international status and under an international supervision, even in the 1970s, as good (colonial) administration and not the promotion and the realization of the principle of self-determination.2 On this basis the position of South Africa, which could even amount to reversion of the mandated territory to a pure colony, was supported.3 In this regard Judge Fitzmaurice argued: "Indeed the very fact that the supervision of a mandate would have become exercisable by an organ which disapproved in principle of mandates that remained mandates, and held it from the start almost as an article of faith that all mandated territories should be placed under its own trusteeship system - and whose primary aim moreover, in all its dealings whether with trust territories, mandated territories or non-self-governing territories under Article 73 of the Charter was to call into existence as speedily as possible a series of new sovereign independent states 1 See, eg, Namibia Opinion, ICJ Reports 1971, pp. 221-222, n. 2b, where Judge Fitzmaurice argued: "Much more prominence is given to the attainment of independence by the mandated territory, which could not by any process of reasoning be valid legal ground of unilateral revocation". 2 Ibid., p. 232. 3 See suora Chapter VI, Sec. 3. 4 Namibia Opinion, ICJ Reports 1971, Dist Op., pp. 232-233, para. 17.

And again: I have no doubt that the present proceedings represent an attempt to use the Court for a purely political end, namely a step towards the setting up of the territory of South West Africa as a new sovereign independent State, to be called 'Namibia', irrespective of what the1 consequences of this might be at the present juncture". It has been amply demonstrated that the mandates system, even the 'C' type, pointed towards the attainment of the principle of self-determination.2 And since the establishment of the United Nations, the principle of selfdetermination has become a distinct recognized legal rule. In 1919 when the independence of colonised territories was not a generally accepted phenomenon, and when there were hardly any hard rules of international law on decolonisation, nevertheless, colonisation of Namibia by South Africa was excluded by an international agreement. It is thus hardly acceptable today when the whole of the colonised world has been decolonised,3 and clear rules of international law developed. It could not be legally acceptable that South Africa should unilaterally turn an international agreement, however tenuous, on non-colonisation into a colonisation agreement. The view of Judge Fitzmaurice in the Namibia Opinion is doctrinally centred on colonisation and jurisprudentially on legal conservatism, the combination of which produces almost a disruptive version of voluntarism. Contrary views attracted only scornful rejection, in consequence I Ibid., p. 304 2 See supraChapter IV, Sec. 3, Chapter V, Sec. 1. 3 Up to a point the process of decolonisation was the cause of the emergence of legal rules on the subject rather than the legal rules facilitating the process of decolonisation, at least in the initial stages, see Georges Abi-Saab, "The Third World and the Future of the International Legal Order", Rivue Egyptienne de droit international 29 (1973) p. 27, at p. 31.

Judge Fitzmaurice subsequently stated: "In general, almost anything is forgiven to a country that can plead some 'anti-colonial' reason for its actions, or can find a pretext for them by pleading the so-called 'legacy of colonialism' or representing itself as 'underdeveloped',.1 Thus by,even arbitrarily, exclusion of consent2 an international agreement could be unilaterally amended.3 It is no surprise that another member of the Court was led to observe that "it is easy to comprehend the concern felt by the zealous defenders of untouchable state sovereignty at the abandonment of the doctrine enunciated in the Advisory Opinion on the Status of Eastern Carelia"'4 The International Court rejected the colonisation view. It held that the administration of South Africa in Namibia had become contrary to the Covenant of the League, the Charter of the United Nations, the Universal Declaration of Human Rights, and in fact, contrary even to the minimum tenets of good Government, social justice and, therefore, not capable of promoting to the "utmost the material and moral well-being 1 Sir Gerald Fitzmaurice, The Future of Public International Law and of the International Legal System in the Circumstances of Today. (Institut de Droit International). Genive: Imprimerie de la "Tribune de Gen've", 1973 at p. 37. 2 Judge Fitzmaurice appears to view consent as a formal source of international law, see, "Some problems Regarding the Formal Sources of International Law" in Symbolae Verzill. The Hague: Nijhoff, 1958, p. 153; Cf. Maarten Bos, "The Recognized Manifestations of International Law: A New Theory of Sources", German Yearbook of International Law 20 (1977) p. 1, esp. pp. 54-55. 3 Namibia Opinion, ICJ Reports 1971, Dis. Op., p. 268, para. 72; it has been shown in Chapter VII, Sec. 2(i) that South Africa was not the supreme king in Namibia; see further, Natalie K. Hevener, "The 1971 South West Africa Opinion: A New International Judicial Philosophy". International and Comparative Law uarterly 24 (1975), p.791. 4 Namibia Opinion, Separate Opinion of Judge De Castro, ICJ Reports 1971, at p. 173.

346 and social progress of the inhabitants",l Thus it was not only a question of South Africa frustrating and opposing the development and realization of the principle of self-determination; but equally her 2 actions also failed to fulfil even the least requirement, which a territory with an international status should attain, namely, good administration.3 Consequently, on the basis of the foregoing the Court was led to the conclusion that the mandatory Power had violated, not only the spirit but equally the letter of the relevant provisions of the mandates system, and Resolution 2145 (XXI) "is therefore to be viewed as the exercise of the right to terminate a relationship in case of a deliberate and persistent violation which destroys the very object and purpose of that relationship".4 (emphasis added) It could be further observed in passing that the very notion of illegal administration in a non-independent territory, which the International Court sanctioned,5 is a characteristic of the legal principles of decolonisation. The general legal principle, appears to be, that the principle of self-determination should apply to all dependent territories, 1 Ibid., pp. 46-47; One of the two of the dissenting judges on this point, Judge Gros, however, seemed only unhappy with the depth of the legal finding, he stressed in his dissenting opinion: " ... a judicial finding that there had been a breach of the obligation to transform the Mandate by negotiation as the 1950 Opinion prescribed, would have legal consequences in respect of the continued presence of South Africa in the mandated territory. I consider that, in that context, the legal consequences concerned would have been founded upon solid legal reasons." Ibid., p. 345. 2 Eg, accepted even by those who propounded what we categorized as colonisation view, ibid., Judge Fitzmaurice, Dis. Op., p. 232. 3 The purpose of the administration of South Africa in Namibia being circumscribed to the interests of the settlers was not aimed at promoting the welfare of the indigenous inhabitants; and thus the notion of good administration was not related to the indigenous inhabitants but the settlers, see supra Chapter II. 4 Namibia Opinion, ICJ Reports 1971, p. 47, para. 95. 5 Ibid., p. 580' the protection and the retention of national unity and territorial integrity excepted. For the applicability of the principle of selfdetermination the mode and the manner by which dependent status was imposed is irrelevant. As has been observed,2 foreign rule, and of any type or motivation, is untenable under the United Nations law of decolonisation. There are, thus, no conditions which could permit and justify an imposition and retention of a foreign rule. Once certain conditions are considered according to international law to have been fulfilled then the process for the attainment of the principle of self-determination should be set in motion. Failure by the colonial, administering or mandatory authority to put into effect such machinery, and without reasonable and justifiable causes and excuses, could lead to a determination that the colonial, administering or mandatory authority has violated principles of international law as well as its obligation, if applicable, and as a 1 Operative paragraph 6 of the GA Res. 1514 (XV), Declaration on the Granting of Independence to Colonial Countries and Peoples. This has now been widened and totally exclude dependent territories administered by a foreign power, but which was before an integral part of the claiming state, this seems to be the conclusion one can reach as a result of the Chinese protest which the United Nations accepted. The Peoples Republic soon after taking over the seat for China, on 8 March 1972 wrote to the Chairman of the Special Committee on Decolonisation, complaining of the listing of Hong Kong and Macau as non-self-governing territories, these had for years been listed as such. The Chinese protest was accepted See Un Doc A/8723 (part I) Annex I and GA Res. 2908 (XXVII) of 2 November 1972; for the argument of the Kingdom of Morocco, see UN Doc. E/CN/.4/Sub.2/391. It seems, however, that the point is now so well settled to be accepted as a principle of international law relating to decolonisation, viz that in any situation the wishes of the people, in case of doubt, should be tested in a free and democratic process, preferrably supervised and controlled by the United Nations. 2 See supra Chapter III. result the administration has become illegal.1 In this regard the doctrine of consent, which is the pivot of Judge FLtzmaurice's dissenting opinion in the Namibia Opinion, could, with due respect, thus not deliberately be resorted to so as to oust the principle of self-determination. No doubt, in theoretical perception, the normative content of principles of international law which developed as a result of decolonisation would be contradictory to those principles which developed during and facilitated the colonisation era. After all, in every respect decolonisation is the antithesis of colonisation and colonialism. The development, in some measures, of the modern international law and of 2 colonialism being coeval, the dismantlement and outlaw of the latter could a fortiori make the related principles of the former obsolete and inapplicable. In the Namibia Advisory Opinion this conflict was aptly illustrated. The decolonisation view, however, won. And the main exponent of the colonisation view, Judge Fitzmaurice, conceded in the most remarkable manner: "I realize that on this matter, as on most others, my view and the reason of the Court are operating on different wavelengths".3 I Where there are international agreements about the administration, as the case is with regard to Namibia, the determination of the illegality of the administration seems much easier. A purely colonial administration, as a result of the principles of decolonisation, could also be determined as illegal. It was from this perspective that the Foreign Minister of India, Mr Krishna Menon, at the time of the Goa situation, declared that "colonialism is a permanent aggression", Times of India (New Delhi) 1 January 1962. 2 See, C.W. Jenks, Common Law of Mankind. London: London Institute of World Affairs, Stevens, 1958, p. 72 et seq. 3 Namibia Opinion, ICJ Reports 1971, Dis. Op., p. 257.

The causal factor for the jurisprudential cleavage into decolonisation and colonisation points of view discernible in the Namibia Opinion, it seems, is not mainly due to the geopolitical divisions on the basis of the countries of origin of the various judges.1 It seems the perceptions of international law of the various judges, a perception of law which perhaps the position of the country of origin with regard to colonialism could have influenced, could be more significant in determining the position a particular judge may take on a particular issue. A former member of the International Court, on this point, observed that "differences perceptible among the judges in handling judicial affairs are purely of personal character and not ones of group or regional nature. The judges also differ in that some are speculative and theoretical while others are practical and empirical".2 1 See Table 1II see also, Wolfgang G. Friedmann, "The Jurisprudential Implication of South West Africa Case", Columbia Journal of Transnational Law 6 (1967) p. 1; Friedmann considers that more significant than nationality is the careers background, ibid., p. 3. Indeed, it seems that judges who come to the bench from the foreign ministries, without academic experience, would tend to view everything from the point of view of the sovereignty of States. Cf. T.O. Elias, "One obvious lesson to be learnt from these illustrations (The South West Africa Cases) is that the international law being developed by the Court on the basis of the shifting stances of its judges who seem to be serving mainly the national or group interests of the States that elected them, is not likely to inspire confidence in the Court as a dynamic instrument to maintain the right balance between stability and change, and between the strong and the weak States". T.O. Elias, "Does the International Court of Justice, as it is presently shaped correspond to the Requirements which follow from its Functions as the Central Judicial Body of the International Community?" in Judicial Settlement of International Disputes (International Court of Justice, Other Courts and Tribunals, Arbitration and Conciliation). Berlin: (Max Law), Springer-Verlag, 1974, p. 23 at p. 26. 2 Kotaro Tanaka (formerly a judge at the ICJ), "The Character of World Law in the International Court of Justice", The Japanese Annual of International Law 15 (1971) p. 1, at p. 15; see also, J.G. Merrills, "Images and Models in the World Court: The Individual Opinions in the North Sea Continental Shelf Cases", Modern Law Review 41 (1978), pp. 638-659.

Table : Voting Patterns of the Judges in Decisions on Namibia: grouped according to the position of the country of origin to colonialism Issues Former European Decolonised Others Colonial Non- & 3rd World &Settlers Colonial & States States Socialist States (i) (ii) (iii) (iv) Yes-No-Absk Yes-No-Abs Yes-No-Abs .4 4 4 1- International Status continued (1950 Supervisory Functions continued (1950) Mandatory under an obligation to enter into a trusteeship agreement (1950) Voting Procedure (1955) Admissibility of Hearing of Petitioners (1956) South West Africa Cases Preliminary Objections (1962) South West Africa Cases, Members have legal interest (1966)** Namibia Opinion, Administration is illegal (1971) Namibia Opinion, Member States must recognize the illegality of South Africa (1971) 5 003 201 404 003 101 501 502 20 2 2 0 400400220400301120120300 1 0 501501321700241601403 8 0 0 1 0 Yes-No-Abs 0 1 1 0 0 GRAND TOTAL 2 21 0 j24 7 1 j47 7 8 1 0 * Abs - Absence due to illness, recusal or due to late appointment ** The casting vote of the President is not counted, thus the count in the table on this issu4 is 7 to 7. (i) eg : Spain and Australia (if) eg : Sweden and Poland (iii) eg : India and Latin American Republics (iv) eg : Japan

3 CONCLUSION Resolution 2145 (XXI) of the General AssemblyI draws its legal significance from the conventional provisions of the mandates system, the rules of the United Nations law of decolonisation, and the principles of international customary law on self-determination.2 To a large extent the International Court in the Namibia Advisory Opinion, though probably from a different conceptualization, took the same position. In the Namibia Opinion, which is probably, as a mode of decolonisation, 3 4 the last, the Court did not only, as it were, redeem itself, but it also restored the consistency of its jurisprudence on the question of Namibia. The rulings of the Court in its previous opinions and judgments were not at issue as such, for the Namibia Opinion was not an interpretation or revision opinion. However, in view of the need to establish the legal basis of the actions of the United Nations in the matter; and perhaps also due to the uncertainty caused by the innuendoes in the Judgment of 1966, the Court reiterated its previous judicial rulings. The Court first held that the Mandate for South West Africa, because of the purpose of the institution, did not lapse with the demise of the League. The Court, despite South Africa's submission to the contrary as 1 See supra Chapter VII, Sec. 3. 2 See, for similar view, though not particularized, Ingrid Delup1s, International Law and the Independent State. New York: Crane, Russak & Co., Inc., 1974, p. 13. 3 It seems the outstanding issue would be Walvis Bay; South Africa claims that Walvis Bay, a natural harbour off the Namibian Coast, is a part of South Africa, for contrary legal argument, see Tunguru Huaraka, "Walvis Bay and International Law", Indian Journal of International Law 18 (1978), p. 160. But it is of such vital importance to Namibia that it is not likely that any future Government of Namibia may agree to refer the question to the ICJ. 4 When the question posed to the Court was being discussed in the Security Council Mr. Khatri (Nepal) expressed the hope that the Court would get a chance to "redeem its impaired image". SCOR, 25th Year, 1550th Mtg., p. 9, para. 83. a result of the so-called new facts, relied on the 1950 Advisory Opinion and thus restored the authority of that unanimous decision on this question.2 The non- colonial nature (though only at the level of theoretical perception than actual administration) of the international status of Namibia was thus judicially restored to its pinnacle. We should, however, observe that the 1950 Advisory Opinion determined the international status of Namibia after the demise of the League of Nations. However, this Opinion did not place Namibia outside the regime created by the mandates system, nor did it create a perpetual status of dependency, which was outside the purview of the development of the law on this subject. Thus, the termination of the mandate of South Africa to administer Namibia is quite in consonance with the 1950 Opinion.3 Secondly, and again relying on its previous opinions, and it should be emphasized that the rulings in these opinions were not judicially undermined by the Judgment of 1966; the Court held that in view of the need for the protection of the rights of the inhabitants of Namibia, the supervisory functions formerly exercised by the League of Nations, functions exercised on behalf of the international community, after the dissolution of the League, became the prerogative of the United Nations.4 The Court made a clear distinction between ordinary colonies and mandated territories. Consequently, it held that "since a provision of the Charter - Article 80, paragraph I - had maintained the obligations of the Mandatory, the United Nations had become the appropriate forum for I Namibia Opinion, Pleadings, Vol. 1, pp. 590-615; Cf. supra Chapter III. 2 Ibid., ICJ Reports 1971, p. 32, para. 55 ff. 3 Cf. G-M Cockram, South West Africa Mandate. Cape Town: Juta and Company Ltd., 1976, p. 356; on the whole Cockram takes a very narrow perception of the question, to a greater extent perhaps influenced by the parochial position (determined and influenced by the race issue) of the Government of South Africa. 4 Namibia Opinion, ICJ Reports 1971, p. 33, para. 59 ff. supervising the fulfilment of those obligations". The contrary would have deprived the people of Namibia their conventional rights, and at the same time would have given the Mandatory State rights which were specifically excluded.2 Having restored the international status of Namibia as well as the obligations and rights resulting therefrom to their judicial prominence, thirdly, the International Court held and, in consequence, that since the General Assembly was legally entitled to supervise the administration of the mandatory, it could, in case of gross violations of the provisions of the mandate, revoke the mandate.3 Since the provisions relating to the mandates system did not exclude the general principles of law, the Court felt no need to establish the right of the General Assembly to revoke the mandate.4 Nor did the Court, since it is not a reviewing organ, consider in depth the legal significance of the activities of the United Nations in this regard. It simply took the view that the "question of the validity or conformity with the Charter of General Assembly ... resolutions does not form the subject of the request for advisory opinions."6 It may be that in a typical judicial cautious manner the Court disposed of the argument, resulting from a narrow textual interpretation of the various provisions of the Charter, of the recommendatory nature of the General Assembly resolutions, by mere distinction. Perhaps it skipped over lightly an important issue. However, from the broad premises, involving the whole of othe mandates system and the general development in 1 Ibid., p. 37, para. 72. 2 Ibid., p. 41, pars. 78. 3 Ibid., p. 45 Ct seq. 4 Ibid., p. 47, para. 96, however see supra Chapter VII, Sec. 2. 5 Ibid., p. 45 ff., para. 88 ff. 6 Ibid., p. 45, para. 89. the United Nations of the norms relating to dependent territories, the ruling of the Court that "a party which disowns or does not fulfil its own obligations cannot be recognized as retaining the rights which it claims to derive from the relationship"1 clothes the activities of the General Assembly , acting in its capacity as a party to an international agreement, with legal significance. As a result of the foregoing, finally, the Court held that the Security Council resolutions on the subject were binding on the Member States. The Court ruled that the obligations of the Member States "to accept and carry out the decisions of the Security Council in accordance with the present Charter"2 is not restricted to enforcement measures under Chapter VII, but any decision of the Security Council intended to be implemented.3 There is no doubt, in view of the implementation machinery established, clearly stated content, that the revocation of the mandate, which the Security .Council supported, was intended to be carried out. From this perspective, despite the fact that non-members are not obliged to comply with measures taken outside the ambit of Chapter VII of the Charter,4 the Court, nevertheless, considered that "the termination of the Mandate and the declaration of the illegality of South Africa's presence in Namibia are opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law".5 (emphasis added). This ruling of the International Court on non-members, though hardly elaborated upon, brings out the immense significance of the Namibia Opinion to the concretization 1 Ibid., p. 46, para. 91. 2 Article 25 of the Charter of the United Nations. 3 Namibia Opinion, ICJ Reports 1971, pp. 52-53, para. 113. 4 Article 2 (6) of the Charter of the United Nations. 5 Namibia Opinion, ICJ Reports 1971, p. 56, para. 126. of the principles of international law relating to decolonisation. The illegality of South Africa's administration in Namibia stems not only from violation of conventional principles but more so from violation of general principles of international law. Thus in the latter instance even the non-members of the United Nations are to recognize such illegality and act accordingly. Whatever the procedural effect of advisory opinions, which does not affect in great measure the Judicial substance of the opinions,1 the Security Council has now an authoritative legal statement from the principal judicial organ that South Africa is illegally occupying Namibia. Bearing in mind the change in international law relating to the processes of decolonisation, which is no longer a unilateral domestic affair of the administering authority,2 but falls to be determined by the United Nations. The illegal occupation is thus an infraction of the principles of international law or, at least, of the norms of the United Nations law of decolonisation, which may amount to a breach of the peace. Furthermore, and very pertinent, the illegal occupation of Namibia by South Africa, which prevents not only the realization of the right to self-determination of the people of Namibia but equally the United 1 The International Court on one occasion had to remark, in that case, by the provisions of the requesting organ the advisory opinion was binding, that such a position "in no wise affects the way in which the Court functions; ... Nor does it affect the reasoning by which the Court forms its Opinion or the content of the Opinion itself ... The Court is a judicial body and in the exercise of its advisory functions, it is bound to remain faithful to the requirements of its judicial character". This applies equally where the opinion is not statutory binding. Judgment of the Administrative Tribunal of the ILO upon complaints made against the UNESCO, Advisory Opinion of 23 October 1956; ICJ Reports 1956, p. 77 at p. 84. 2 It was in consequence of this fact that on 5 November 1965 the General Assembly of the UN decided that independence should neither be sought nor accorded to Southern Rhodesia on terms other than those conforming to what we term the United Nations law of decolonisation.

356 Nations from effecting its administrative responsibility in Namibia, could amount to an act of aggression.1 From the foregoing analysis the Security Council is legally entitled,, apart from its own determination it could make, to invoke enforcement measures against South Africa for the latter's illegal occupation of Namibia. However, such a course of action was not preferred; and South Africa led the international community on by indicating willingness to allow genuine process for the implementation of the principle of selfdetermination in Namibia.2 Despite the clarified legal position negotiations outside the United Nations were preferred. The Western Powers in the Security Council (France, Canada, Germany (West), United Kingdom and the United States), the Contact Group, countries which in view of their heavy investments in and substantial trade with South Africa (Namibia included) have 1 According to operative para. 4 of GA Resolution 3314 (XXIX) 'Definition of Aggression", the Security Council could, it seems, depending on the length of the duration of the illegality, the response of South Africa to demands from the UN to remove her illegal occupation, determine that South Africa's actions in Namibia amount to aggression. The GA in 1963 considered that any attempt to annex a part or the whole of Namibia would constitute an act of aggression (Res 1899 (XVIII) ), and in 1969 it determined that the situation in Namibia constituted a threat to international peace and security, (Res. 2517 (XXIV) ). 2 In a letter dated 27 May 1975 from the Minister for Foreign Affairs of South Africa to the Secretary General. UN SC Doc. S/11701, South Africa, eg, stated: "As is well known, the basis of the South African Government's approach to the question of South West Africa is that it is for the people of South West Africa themselves to determine their own political and constitutional future in accordance with their choice freely expressed wishes. ... All options are therefore open to them - including that of independence as one State if that is what they should choose". And the Prime Minister speaking in Windhoek also stated: "As far as the OAU is concerned, in principle, and bearing in mind what I have already said, we have no quarrel with their points of view concerning the self-determination, independence and the maintenance of the territorial integrity of the Territory". Ibid., Annex. Extracts from an address by the Prime Minister of South Africa, the Hon. B.J. Vorster, in Windhoek on 20 May 1975; South Africa was responding to the dead-line set by the Security Council of 30 May 1975. SC Res. 366 (1974). bargaining power against South Africa decided, with the approval of all concerned, to negotiate an acceptable solution to the Namibia question.I And the United Nations was only to endorse the solution reached, which in no doubt should be within the rules of the United Nations law of decolonisation. It may be noted in parenthesis that, it appears, enforcement measures under Chapter VII of the Charter of the United Nations are subjected to, as it were, particularly when aimed at a relatively powerful member State, double veto. For it is not only that none of the Permanent Members must oppose the measures; but due to the fact that the Permanent Members are also the most economic and military powerful States, for such enforcement measures to be carried out, at least one, but preferably all, of them should be prepared to carry them out.2 It is in this regard that the implementation measures negotiated by the Contact Group with South Africa, the representatives of the Namibian people, and with all other interested groups, stand a better chance of being carried out. It should be stressed, however, that these are only implementation measures, to achieve the independence of Namibia, which should conform to the principles of international law concerning decolonisation. It may be noted in passing that in the light of the above analysis, even if the International Court in 1966 adjudicated on the merits of the South West Africa Cases and found in favour of the Applicants, the end result might have been the same as the Namibia Opinion, namely lack of active support by the big powers to be implemented. The enthusiasm expressed during the South West Africa Cases3 for a solution of the Namibia I UN SC Doc. S/12636 (10 April 1978). 2 Thus, it is not realistic, for example, to expect economic sanctions against South Africa to be effective unless France, Germany (Federal Republic), United Kingdom and United States are in active support of such measures. 3 See, for example, the conclusions of the International Conference on South West Africa, Oxford, 23-26 March 1966, Ronald Segal and Ruth First, od4. Snuth Weqt Africa: Tra,,qtv of Trust. Lnndon: Andre Deutsch. 1967.

358 question in case of a favourable decision, could thus have turned illusory. Lack of effective enforcement mechanism is one of the primitive features of the international law. For this reason any solution agreed to between the .Contact Group and the other interested parties has thus a fairer chance of being successfully implemented. Of course, any agreement reached will have to be endorsed by the United Nations in accordance with its norms.

CHAPTER IX ATTEMPTS AT THE IMPLEMENTATION OF THE UNITED NATIONS DECISIONS 1 THE UNITED NATIONS COUNCIL FOR NAMIBIA In pursuance of the revocation of the mandate of South Africa to administer Namibia,1 the General Assembly on 19 May 1967 set up2 the United Nations Council for Namibia3 to administer the territory until independence. It has been demonstrated4 that the decision of the General Assembly to revoke the mandate of South Africa to administer Namibia was legally sound and constitutionally valid. The General Assembly has the sole prerogative in matters concerning dependent territories with international status and whose administrations should be safeguarded by the international community. Thus, in that capacity, and as elaboratedly illustrated,5 and in order to safeguard and defend international conventions 1 GA Res 2145 (XXI) of 27 October 1966. 2 It was first known as the UN Council for South West Africa, and when the name of the country was changed in 1968, the Council also changed to UN Council for Namibia. See GA Res 2372 (XXII) of 12 June 1968. 3 GA Res 2248 (S-V) of 19 May 1967. 4 See supra Chapters VII and VIII. 5 Supra Chapter V, Sec. 1; Chapter VII, Sec. 3. the General Assembly could make a definite valid determination. In the case of Namibia, it decided to revoke the mandate and to revert the administration to itself. For the implementation of this task the UN Council for Namibia was established. The UN Council for Namibia, which was supposed to step in the shoes I of the mandatory power, was given wide powers. As an administrative body it could make such laws, decrees and administrative regulations as are necessary. The Council's main task was, of course, to implement the decolonisation processes of the United Nations - to set up a constituent assembly to draw up a (non-discriminatory) constitution, organise elections, establish a legislative assembly and a responsible government, 2 and within a year grant independence. The Council was further charged with maintenance of law and order. The eleven members Council worked in collaboration with the United Nations Commissioner for Namibia who was entrusted with the executive and administrative tasks.4 It should be stressed that the tasks of the UN Council for Namibia were formidable, considering that it was to take over the entire administration of the territory. Legally, as has been shown5 the United Nations, in the domain of decolonisation, was legally empowered not only by the rules of the decolonisation it generated, but also by the conventional principles, at least in the case of Namibia, as well as by I However, due to the uncooperative attitude of South Africa, this has not yet materialized. 2 GA Raes 2248 (S-V) par&. I of Part I. 3 The members increased from 11, see GA Res 2248 (S-v), to 18, GA Res-3031 (XXViI) of 18 December 1972, para 12 and finally to 25, GA Res 3295 (XXIX) of 13 December 1974. 4 GA Res 2248 .(S-v) para 3 of Part It. The first UN Commissioner for Namibia was Hr. McBride, appointed on 12 December 1973, see, UN Doc A/10024. Up to that time there were acting Commnissioners. 5 Supra Chapter IV. the general principles of international law,1 to carry out such tasks. Indeed, the legal rules concerning decolonisation were formulated and concretized by the United Nations itself through its activities. This fact is borne out by the fact that in the Ad Hoc Committee for South West Africa, set up in pursuance of the revocation of the mandate, the legality and validity of an organ of the United Nations to actually 2 administer the territory was not doubted. The differences were on the 3 procedure and on the functional effectiveness of such an organ. Furthermore, to some extent the United Nations had previous experience in such temporary administration of territories before decolonisation. In Libya in conjunction with the administrative authority 4 the United Nations ushered the territory to statehood; and again in 1 See, eg, Reparation for injuries suffered in the service of the United Nations, Advisory Opinions ICJ Reports 1949, p. 174. In the often quoted passage for the general capacity of the UN in international law, the Court stated: "In the Opinion of the Court, the Organisation was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane". The Court went on to say that the UN "is a subject of international law and capable of possessing international rights and duties." Ibid., p. 179. And see also the Namibian Opinion of 1971. 2 GA Res 2145 (XXI) para 6; see also UN Doc A/6640, the Report of the Ad Hoc Committee for South West Africa. The legal differences that were argued in the Ad Hoc Committee for South West Africa and also in the Namnibia Advisory Opinion in 1971, confirm our thesis that at the level of international organisations States seem to adopt the position that there is a pertinent legal order developed by such organisations which demands compliance. 3 Report of the Ad Hoc Committee for South West Africa, UN Doc A/6640, 7 April 1967. 4 See, Adrian Pelt, Libyan Independelce and the United Nations: A case of planned decolonisation. New Havens The Carnegie Endowment for bIternational Peace. Yale University Press, 1970.

West New Guinea the United Nations in cooperation with the colonial authority and the interested party assisted the people of West New Guinea to exercise their right to self-determination. However, in contrast to the above precedents, the plan of the United Nations Council for Namibia was all-embracing and comprehensive, probably due to the unacceptable policy of apartheid of the Government of South Africa as well as the element of settlerism. It was envisaged to replace totally the entire administrative facets of the territory before the people could exercise their right to self-determinatione, The UN Council for Namibia which was to be based in Namibia was requested to enter as soon as possible into negotiations with the Government of South Africa for the transfer of the administration. South Africa, however, arguing that the revocation of the mandate was not only 2 illegal but also ultra vires, refused to have anything to do with the United Nations Council for Namibia. Nor did South Africa allow the Council to enter Namibia.3 Thus, the UN Council for Namibia's admin4 istrative plan remained unimplemented. The UN Council for Namibia instead turned its attention to matters which it could effectively perform while outside Namibia. 1 See UN Doc A/5170, 20 August 1962. Agreement between the Republic of Indonesia and the Kingdom of the Netherlands concerning West New Guinea (West Irian). 2 UN Doc A/6897, 10 November 1967. Report of the United Nations Council for South West Africa, Annex 11, letter dated 26 September 1967 from the Foreign Minister of the Republic of South Africa to the SecretaryGeneral. 3 UN Doc A/7088, Report of the UN Council for South West Africa, 4 May 1968, p. 5 et seq. 4 It would be observed that even the Five Western Powers' (Contact Group's) proposal does not envisage the implementation of this administrative plan, but only the objective; see infra Sec. 4.

(i) Travel and Identity Documents In the issuance of travel and identity documents to Namibians abroad the United Nations Council for Namibia had precedents. Indonesia and the. Netherlands in their agreementl setting up the United Nations Temporary Executive Authority - UNTEA - which administered West New Guinea (West Irian) during the final stages of decolonisation of that territory, 2 empowered UNTEA to issue travel documents to Papuans. Of course, in this case UNTEA was in actual control of the territory. However, as the experiences of the governments-in-exile have shown passports (or travel documents) could be issued by an entity which is not in physical 3 control of the territory.' Hence the United Nations Acting Commissioner for Namibia emphasized that "the decisive features of a travel document is therefore not that it is issued by, or on behalf of the authority that is in de facto control of the country or territory, but rather that S4 it will be accepted as valid by other countries". But it seems that in the case of the travel and identity documents for Namibians, the decisive factor was to demonstrate the legality of the UN Council for Namibia as the legal administrative authority. For in certain situations the issuance of travel documents or passports does not only facilitate the movements of the holder, but, and it appears this was one of the significant consideration, entails also the recognition, however tacitly, of the issuing 5 authority. 1 UN Doc 5/5169, 21 September 1962. 2 Ibid., Annex A, p. 17. 3 See, eg, Daniel C. Turack, The Passport in International Law. Lexington, Massachusetts: Lexington Books, 1972, pp. 236-243. 4 UN Doc A/AC.131/4, 27 October 1967 at p. 2. 5 See, eg, Guy S. Goodwin-Glll, International Law and the Movement of Persons between States. Oxford: ;larendon Press, 1978, p. 26.

In view of the fact that in the case of Namibia, the decolonisation process was resisted by the mandatory power; the legality of the United Nations actions had to be decisively demonstrated. Particularly, it had to be concretely demonstrated by the Member States. Thus the acceptance of the travel document issued by the UN Council for Namibia was of great significance in this respect. The UN Council for Namibia noted in its report that "it may be pertinent to point out that in a number of cases, the Council was given to understand that the recognition of the travel document by these Governments implied a recognition of the Council and signified modifications of previous attitudes".1 Discounting those States which were concerned with the question of the 'return clause", of the 53 replies to the Secretary-General's note verbale2 only 5 could be considered as negatives.3 In fact, four of these preferred Namibians to be issued travel documents under the existing provisions for refugees. Only Malawi replied that the "Malawi Government will not recognise any travel document issued by the Council for Namibia".4 It is significant to contrast this small number with the rather huge number of abstentions when Resolution 2248 (S-V) setting up the UN Council for Namibia, was adopted in the General Assembly.5 It seems that once 1 UN Doc A/8424, 28 October 1971, Report of the UN Council for Namibia, p. 7. 2 In a note verbale of 12 December 1968 the Secretary-General requested the Member States of the UN and the members of the Specialized Agencies to undertake to recognize and accept as valid the travel and identity documents issued by the UN Council to Namibians abroad, subject to the usual requirements of each State concerned, UN Doc A/AC.131/10, para 1. 3 These were: Cuba, France, Italy, Malawi and the United Kingdom, UN Doc A/8024, 12 October 1970. Report of the UN Council for Namibia, Annex, p. 51. But once an agreement was entered into on the 'return clause', Cuba and ItaJy indicated that they would recognize the travel documents; UN Doc A/B424, 28 October 1971, Report of o the UN Council for Namibia, pp. 7 and 44. 4 UN Doc A/AC.131/10/Add. 1, p. 3. 5 30 abstentions, see the chart on the voting pattern, infra Appendix VII. an effective implementation machinery was established, which as pointed out above1 does play a role in the formulation and concretizaiion of the legal rules, many States changed from non-support to positive support. The British Government in their change to recognition of the UN Council for Namibia's travel documents pointed out that that was without any prejudice to their position with regard to the UN Council itself; but however, in view'of the fact that Namibians will actually travel on such documents they will recognize them.2 Unlike UNTEA, since it was not in actual control of the territory, the UN Council for Namibia in the issuance of travel documents to Namibians abroad had the problem of the return clause. The requirement of a "return clause" in a travel document (or passport) is an important rule of international law.3 Therefore, the UN Council for Namibia had to enter into agreement with certain States which undertook to underwrite the "return clause" in the Council's travel documents. The agreement with the Goverment of Zambia, for example, states, in parts: "2. In the exercise of its sovereign rights the Government of the Republic of Zambia agrees to grant the right of return to the following categories of Namibians who receive the travel and identity documents of the Council: a) Namibians residing in Zambia, b) Namibians enjoying first asylum in Zambia, c) Such other Namibians as the Government may determine. I Supra Chapter IV, Sec. 2. 2 UN Doc A/AC.131/1O/Add.10, 11 May 1972. However, verbal protestation would in the long run be completely eroded by the concrete actions. 3 Agreement relating to the issue of a Travel Document to Refugees who are the concern of the intergovernmentil Committee on Refugees, signed at London, on 15 October 1946. 1I UNTS 84, Article 15 at p. 90. Of course, the national passport is in itself the guarantee of the right to return to the issuing State, see Guy S. Goodwin-Gill, op. cit., p. 44. j00 "3. The right of return will be inscribed and certified by the Government of the Republic of Zambia in the travel and identity documents issued by the United Nations Council for Namibia for a period of up to two years following the date of issue of the documents and this period may be extended."1 Basically the issuance of passports (and travel documents) is a matter within the municipal Jurisdiction of the issuing State. Thus, in the agreements concerning the Namibian travel documents the State underwriting the "return clause" has to approve the legal authority of the UN Council for Namibia to issue such travel documents. The UN Council for Namibia entered into similar agreement on the issuance of travel and identity documents to Namibians with seven other African countries.2 The UN Council deposited these agreements, in accordance with the provisions of the Charter of the United Nations,3 with the United Nations Treaty Section, "thus achieving one further step towards international recognition of the Territory of Namibia as having the capacity to enter into international agreements and of the Council as the Territory's lawful authority".4 The UN Council for Namibia also issued a visa to a would-be traveller to Namibia.5 However, in view of the fact that the UN Council was not in actual control of Namibia and also due to the refusal of South Africa to cooperate, this visa was not utilized. The visa was issued on the basis of Section II of General Assembly Resolution 2248 (S-V).6 1 UN Council for Namibia: Agreements with African Countries for Issuing Travel Documents to Namibians, UN Doc A/8024; or see, 9 International Legal Materials (1970) p. 1218. 2 UN Doc A/9024, 25 September 1973, Report of the UN Council for Namibia, p. 63. All these agreements are identical. 3 Art. 102; see also UN Doc A/9624, 16 August 1974, p. 38. 4 UN Doc A/8724, 8 September 1972, Report of the UN Council for Namibia, p. 23, para. 147. 5 Ibid. 6 See appendix for the text of this resolution.

The issuance of travel and identity documents to Namibians abroad by the United Nations Council for Namibia is a significant demonstration of the legal significance of the United Nations activities on decolonisation, as exemplified by the question of Namibia. The recognition by States1 of the validity of such documents confirms our thesis that in certain specific field such as decolonisation, over a number of years and by consistent and unequivocally stated propositions which enjoy overwhelming majoritysupport of the Member States, the United Nations could create certain norms which States at least as members, would consider to have legal significance to warrant compliance. (ii) The United Nations Institute for Namibia The UN Council for Namibia also established an institute for Namibians, the United Nations Institute for Namibia, in in 1976.2 The Institute for Namibia was a direct result of the United Nations Fund for Namibia. In 1970 the Security Council directed the General Assembly to set up a United Nations fund for Namibia "to provide assistance to Namibians who have suffered from persecution and to finance a comprehensive educational and training programme for Namibians, with particular regard to their future administrative responsibilities in the Territory".3 In consequence the General Assembly established the UN Fund for Namibia as soon as possible.4 1 Within 5 years the Namibian travel and identity documents were recognized as valid by 88 States. See UN Doc A/10024, 12 September 1975; and 659 documents were issued to Namibians, see UN Doc A/31/24, 17 November 1976. 2 GA Res 3296 (XXIX), 13 December 1974 and see also UN Doc A/31/24, 17 November 1976, para. 5. 3 SC Res 283/1970 of 29 July. 4 GA Res 2679 (XXV) of 9 December 1970; it is interesting to note in passin that in the Security Council when Res 283 (1970) was adopted France abstai ed; of course that resolution covere4 many other issues, but in the Genera] Assembly when Res 2679 (XXV) was adopted she voted in favour; whereas the Soviet Union in the Security Council voted for and in the General Assembly abstained; this demonstrates that the point for abstention could be very limited.

The UN Institute for Namibia which started officially on 26 August 1976 with 100 students and a teaching and administrative staff of about 60,1 main purpose is to "enable Namibians to undertake research, training, planning and related activities with special reference to the struggle for freedom of the Namibians and the establishment of an independent State of Namibia".2 The student population of the Institute is expected to increase to 300 by 1980.3 The UN Institute for Namibia is a further concrete demonstration, in this instance equally to the Namibians, of the fact that the UN Council for Namibia is the legal administrative authority for Namibia, and in no doubt, in the final and complete implementation of the decolonisation measures of the United Nations, it will be transferred to Namibia. 2 THE DECREE ON THE NATURAL RESOURCES OF NAMIBIA It has been amply demonstrated4 that the mandate of South Africa to administer Namibia, in accordance with the provisions of the Versailles Peace Treaty of 1919, was legally and validly revoked by the United Nations in 1966.5 As a result the administration of South Africa in Namibia has no longer any legal basis; and has thus become illegal. This is also the conclusion reached by the International Court in the Namibia Opinion.6 1 UN Doc A/31/24, 17 November 1976, pp. 44-45. 2 Ibid., A/9624/Add. I, 16 August 1974, p. 19. 3 Ibid., A/32/24, 6 October 1977, p. 29. 4 See supra Chapters VII and VIII. 5 CA Res 2145 (XXI) of 27 October 1966. 6 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16. (Hereafter cited as Namibian Opinion, ICJ Reports 1971, p. 16.)

The United Nations, through the UN Council for Namibia, assumed direct responsibility for the administration of the Territory. Alth"ugh due to South Africa's uncooperative attitude this has remamued unaffected. It is at times contended that colonies were mainly noted for their supply of raw materials to the metropolitan centres.I Namibia is richly endowed with mineral resources, including such strategic mineral as uranium.2 Thus, the UN Council for Namibia being a process of decolonisation, its Decree on the Natural Resources of Namibia emphasized the protection of the natural resources of Namibia as the goal.3 A second objective, and in our view equally important, is the demonstration to and acceptance by States of the authority of the UN Council for Namibia as the legal administrative authority. The UN Council for Namibia's Decree on the Natural Resources of Namibia reads, in parts, as follows: "Decrees that: 1. No person or entity, whether a body corporate or unincorporated, may search for, prospect for, explore for, take, extract, mine, process, refine, use, sell, export, or distribute any natural resource, whether animal or mineral, situated or found to be situated within the territorial limits of Namibia without the consent and permission of the United Nations Council for Namibia or any person authorized to act on its behalf for the purpose of giving such permission or such consent; 1 See, eg, Samir Amin, Unequal Development. New York: Monthly Review Press, 1976, pp. 183-191; Ibid., Imperialism and Unequal Development. New York: Monthly Review Press, 1977; Walter Rodney, How Europe Underdeveloped Africa. Dar es Salaam; Tanzania Publishing House, and London: Bogle-L'Ouverture Publications 1972; See also supra Chapter I, where the economic interests of the various Powers in the establishment of the mandates system is considered. 2 UN Doc A/9624, 16 August 1974. Report of the UN Council for Namibia, pp. 17-24 and Annex VII, Guide to Foreign Companies Operating in Namibia, pp. 39-75; See also generally Ruth First, Jonathan Steele, Christabel Gurney, The South African Connection. Penguin Books Ltd., Harmondsworth, England: 1972. 3 Preambles paras. 4 and 6@'

37.0 2. Any permission, concession or licence for all or any of the purpose specified in paragraph 1 above whensoever granted by any person or entity, including anybody purporting to act under the authority of the Governent of the Republic of South Africa or the Administration of South West Africa or their predecessors, is null, void and of no force or effect; 3. No animal resource, mineral, or other natural resource produced in or emanating from the Territory of Namibia may be taken from the said Territory by any means whatsoever to any place whatsoever outside the territorial limits of Namibia by any person or body, whether corporate or unincorporated, without the consent and permission of the United Nations Council for Namibia or of any person authorized to act on behalf of the said Council; 4. Any animal, mineral or other natural resource produced in or emanating from the Territory of Namibia, which shall be taken from the said Territory without the consent and written authority of the United Nations Council for Namibia or of any person authorized to act on behalf of the said Council, may be seized and shall be forfeited to the benefit of the said Council and held in trust by them for the benefit of the people of Namibia; 5. Any vehicle, ship or container found to be carrying animal, mineral or other natural resources produced in or emanating from the Territory of Namibia shall also be subject to seizure and forfeiture by or on behalf of the United Nations Council for Namibia or of any person authorized to act on behalf of the said Council and shall be forfeited to the benefit of the said Council and held in trust by them for the benefit of the people of Namibia; 6. Any person, entity or corporation which contravenes the present decree in respect of Namibia may be held liable for damages by the future Government of an independent Namibia;"' 1 UN Doc A/9624/Add. I, 161August 1974, Report of the UN Council for Namibia, at p. 28.

31/ The Decree has probably the genesis of its theoretical setting from the pleadings in the Namibian Opinion, and from the writings of publicists on international law;2 whereas its actual foundation is to be found in the activities of the General Assembly and of the Security Council of the United Nations.3 1 The Secretary-General in his written statement to the Court, inter alia stated: "An immediate consequence for States is that any legal relation of any kind, with or involving Namibia can only be entered into or maintained through the sole authority legally responsible for the administration of Namibia, namely the United Nations Council for Namibia, acting on behalf of the General Assembly. Conversely, any relation purporting to be with or to involve Namibia, which has been entered into or maintained through the Government of South Africa or the illegal South African administration in Namibia since the termination of the Mandate, is void and without legal effect." The Secretary-General went on: "Since all titles, grants, concessions, charters, incorporations, and other rights in Namibia purportedly granted, transferred or vested by the Government of South Africa after the termination of the Mandate are void and without effect, no such rights or acts should be acknowledged or upheld in the jurisdiction of any State. It also follows, for example, that no sale or transfer of Namibian resources or other assets should be legally valid in the jurisdiction of any State if the title of the vendor was derived from an act of the South African Government after the termination of the mandate." Namibian Advisory Opinion, Pleadings, Vol. I, p. 104, para 116 and p. 109, para 142, reap. 2 See, eg, E. Lauterpacht, "Implementation of decisions of International Organisations through National Courts", in Stephen M. Schwebel (ed). The Effectiveness of International Decisions. Leyden: Sijthoff, 1971, p. 57 at p. 64; and note below. 3 See, eg, GA Res 2871 (XXVI) para 5, 20 December 1971; SC Res 283 (1970) 29 July para 4; also OAU Council of Ministers CM/Res 269 XIX) of 1972.

37 The Decree has three distinct features. First, it empowers the UN Council for Namibia, as the sole legal authority for Namibia, to prevent the handling in any manner any product of Namibia without its consent and authorization. Since the UN Council for Namibia, for the present, could operate only outside Namibia, the Decree thus relates to the position outside Namibia. The remedy the Decree provided for was largely that of an action of conversion in the municipal courts of the Member States. The UN Commissioner for Namibia would claim rightful ownership to any product of Namibia he is able to lay his hands on outside the Territory; and would bring an action in the municipal court where the product is found to recover possession of the product(s). 1 This basically an action in rem is the purpose of the Decree. Secondly, the Decree also provides for penal sanction against the violators, by decreeing that carriers of the products of Namibia would also be forfeited and held in trust for the benefit of the people of Namibia.2 Thirdly, the Decree absolves the future Government of independent Namibia from its obligations under international law in dealing with foreign companies which violated this Decree.3 The first feature appears to be the pivot of this Decree. The actions envisaged in this instance are well established in the national legal systems. The Decree in this instance intended to strengthen the legal capacity of the UN Council for Namibia as the sole legal authority; and to provide a sound legal basis for the defence of such rights in the 1 The original draft of the Decree, which was drafted by Messrs Neville Rubin, T. Killock and Cocktran, contained only this feature; it did not have the present paragraphs 4, 5 and 6. These were added on at a later date. Mr Neville Rubin allowed the author to see this first draft. 2 Paragraph 4; presumably, if the owners of the carrier are prepared to pay for the penalty, as determined by the municipal court, the carrier could be released. 3 Paragraph 6.

373 domestic courts of the Member States. The second feature, because of the penal element involved is probably problematic. For it is likelX that 1 many municipal courts would shy away from enforcing foreign penal law. However, it should be stressed that the penal element in the Decree does not minimize the legal effect of the first feature. Thus, it seems that in all probability only the first instance, conversion, would be relied upon in any action in a municipal court. 2 This Decree, which as it were, is intra-territorial, has its force in the degree of its international acceptance and the probable realization of its intra-territorial effects. The former would result from the impact of the decolonisation processes at the international level, and the latter the impact at the national level. The Decree which was subsequently endorsed by the General Assembly of the United Nations,3 and, in fact, with distinctive roots in the Security Council,4 is, thus, in the same clas as General Assembly resolutions.5 But, in view of its concreteness of the content, clearly 1 See, eg, Cheshire's Private International Law 9th Edition. P.M. North (ed) London: Butterworths, 1974, p. 137. 2 The Decree is intended to have what may be conceptualited as intraterritoriality. A concept derived from the colonial period but in purpose in contrast to the extra- territoriality of the colonial period. The latter concept was a feature of diminished sovereignty, whereas the former could be perceived as the reverse. Extra-territoriality was thus a concept of colonisation; whereas 'intra-territoriality' is in this regard the opposite, it is also a feature of internationally sanctioned process of decolonisation. 3 GA Res 3295 (XXIX) of 13 December 1974. 4 In Res 283 (1970) of 24 July the Security Council stated: "4. Calls upon all States to ensure that companies and other commercial and industrial enterprises owned by, or under direct control of, the State cease all dealings with respect to commercial or industrial entreprises or concessions in Namibia;" 5 See supra Chapter IV, for the analysis of the legal significance of the United Nations activities outside the enforcement measures category. indicated implementation mechanism and clear intention to fill in the legal vacuum, it is a fitting example of the characteristics of the United Nations law of decolonisation. Quite a substantial number of States demonstrated, for that matter outside the United Nations system, their a oceptance of the Decree on the Natural Resources of Namibia. The Conference of the Council of Ministers of the Organisation of African Unity endorsed this Decree.1 The United 2 States, on the other hand, which for different reasons abstained when the Decree was approved by the General Assembly of the United Nations,3 "discourages United States investment in Namibia, has cut off official commercial facilities for trade with Namibia and has made clear that it will not intervene on behalf of the interests of any American investor who engaged himself in Namibia after October 1966".4 And the Government of the Netherlands indicated its readiness to cooperate in the application of the Decree.5 The Decree was also officially published by the Government 6 of Japan. The European Economic Comission notified its members about the 7 Decree. And the State Department of the United States Government 1 CM/Res 433 (XXV), Twenty-fifth Ordinary Session, Kampala, July 1975. 2 Because of the veiled request for the use of enforcement measures contained in the resolution which acknowledged the Decree, see, the Statement by Nathaniel Davis, Assistant Secretary for African Affairs, "Department Summarizes US Policy toward Namibia". 73 Department of State Bulletin 36 (1976). 3 GAOR, 29th Sess., Plenary, 2318th Mtg. 4 Address by Donald B. Easum, Assistant Secretary for African Affairs, 71 Department of State Bulletin 842 (1974). 5 UN Doc A/10024, Annex VIII, p. 68; It could be pointed out that the Netherlands is constitutionally empowered for that, see, Articles 63, 65, 66 and 67 of the Constitution of the Kingdom of the Netherlands (1972). 6 UN Doc A/10024, Annex VIII, p. 68. 7 Ibid.

37 notified shipping companies about the effects of the Decree.1 It is not only governments which responded favourably to the Decree, some companies, parti:cularly the American based, operating in Namibia recognized the 2 legal significance of the Decree and ceased their operations in Namibia. "Some of these companies acknowledged that their action was taken on the ground of insufficient legal safeguards for their investments".3 The clearer the implementation mechanism is, and greater the probability of implementation, the clearer the legal obligation is perceived and thus greater the degree of compliance; the Namibian Decree seems to demonstrate this view amply. Although the UN Council for Namibia would have wished for the legality and thus the effectiveness of the Decree on the Natural Resources of Namibia to be tested and confirmed in domestic courts of the States Members,4 probably due to the logistics involved in apprehending a violator, this has not been possible. Theoretically the Decree seems, however, that it could be enforceable in the domestic courts of the States Members 1 Ibid., it should be noted, however, that the publication of the decisions of the UN may not imply acceptance of the legal significance emanating from such decisions, see, In Re Car, Journal du droit international, 88 (1961) p. 405; or 39 International Law Reports p. 460; see also, Krzysztof Skubiszewski, "Recommendations of the United Nations and Municipal Courts", BYIL (1972-1973) p. 353 at pp. 356-357. 2 UN Doc A/10024, Annex VIII, p. 60. 3 Ibid., See also The Economist (London), November 29 - December 5, 1975, p. 97, where it was reported that "some companies have withdrawn because of the threat of seizure as a result of the Decree"*. See also Business Week (New York) 24 November 1975. 4 UN Doc A/10024, Annex VIII, p. 60. of the United Nations. 1 The decisions of the domestic courts on resolutions of the United Nations, though not uniform2 tend generally,-however, not to reject them simply on the basis of the hortatory nature of the resolutions.3 Even where the Court felt constrained to follow a resolution of the United Nations, other reasons are often advanced rather than the recommendatory nature of the resolutions; such as, the doctrine of the act of state, or the fact that such a decision has not been incorporated into a treaty.4 In the Supreme Court of South Africa, where the applicability of certain laws of South Africa to Namibia was challenged on the grounds that they violated the Mandate for South West Africa, considered as the ground-norm of Namibia, the fact that the United Nations had revoked the mandate of South Africa to administer Namibia was conveniently never referred to.5 The decisions of the United Nations are generally not referred to as the substantive source of the right claimed, 1 As far as the United States is concerned the question has been scholarly surveyed, see George R. Shockey, "Enforcement in United States of the United Nations Council for Namibia's Decree on Natural Resources". Yale Studies in World Public Order, Vol. 2, No. 2 (1976), pp. 285-342; and generally see, Christoph H, Schreuer, "The Relevance of United Nations Decisions in Domestic Litigation". 27 International and Comparative Law Quarterly (1978), p. 1-17; Itse Sagay, "The Right of the United Nations to bring actions in Municipal Courts in order to claim title to Namibian products exported abroad. (South Africa's Lack of Title)". 66 AJIL (1972), pp. 600-605; H.G. Schemers, "The Namibia Decree in National Courts". 26 International and Comparative Law Quarterly (1977), p. 81 at p. 92. 2 See Krzysztof Skubiszewski, loc. cit. 3 See, eg, Christoph H.' Schreuer, loc. cit. 4 Ibid. 5 See, S v Tuhadeleni (1969) (I) AD p. 153 (South African Law Reports).

377 but in most cases, only as supporting~evidence.1 The Namibian Decree is itself the source of the substantive rights and duties, thus, if ever it came before a domestic court this fact would have to be faced. The 2 opportunity has not yet arisen. An individual brought a case in a district court in the United States on the basis of the illegality of South Africa's administration in Namibia. However, the Court ruled that the Charter of the United Nations, though a treaty, is not self-executing for an individual to derive enforceable 3 rights therefrom. It is significant to our analysis to note that the United States District Court for the District of Columbia did not hold that the resolutions of the General Assembly had no force of law. However, the weight of international law comnentators as well as that of the judicial pronouncements seems to lead to the conclusion that the United Nations Council for Namibia's Decree on Natural Resources of Namibia could be enforceable in the domestic courts of States Members of the United Nations.4 The Decree from all intents and purposes is intended 1 The Japanese and Italian Courts referred to the General Assembly Resolution 626 (VII) of 21 December 1952, "Right to exploit freely natural wealth and resources", to show that nationalization of foreign interests under an Iranian law was not contrary to the international public order. See, respectively, Anglo-Iranian Oil Company v Idemitsu Kosan Kabushiki Kaisha, Japan, District Court of Tokyo (Civil Ninth Affairs Section) 1953, 20 International Law Reports (1953), p. 305 at p. 309; Anglo-Iranian Oil Company v SUPOR Company, Italy, Civil Court of Rome, 13 September 1954, 22 ibid., (1955)p.23 at p. 41. 2 It seems that if the issue came before a municipal court, and where issues of constitutionality will not arise, eg, in the Netherlands, see supra p. 374, note 5, a favourable judicial decision seems likely. 3 Diggs et al, v Dent et al., XIV International Legal Materials (1975) p. 797; Plaintiffs asked the Court to declare that defendant Den~s dealings with the Government of South Africa in relation to the importation of seal skins from Namibia violated the United Nations Charter, United Nations Security Resolutions 276 and 301,, among others, and the Advisory Opinion of the International Court of Justice. 4 The legal opinion given to the United Nations Commissioner for Namibia by a team of lawyers in London, some of whom were also involved in the drafting of the Decree, advised that legal action in municipal courts of Member States of the United Nations was worthwhile instituting and could. be successful. to be legally enforceable. Its contents are precise and specific, clear enforcement measures are indicated, the wrong intended to be ratified is unambiguously specified. Furthermore, it is in itself the implementation. machinery of the United Nations decisions on the Namibia question. The combined effects of the various United Nations resolutions on the revocation of South Africa's mandate to administer Namibia is that, at least as the United Nations is concerned, the legal authority in Namibia is the UN Council for Namibia. It is, thus, inconceivable that in the domain under the direction and influence of the United Nations that the authority of South Africa in Namibia would be accorded legality and validity. This was the position taken by the International Court of Justice.2 The legal position was more categorically put in some of the separate opinions. Judge Dillard, for example, stated: "General Assembly resolution 2145 (XXI) coupled with subsequent Security Council resolutions, culminating in Security Council resolution 276 (1970), together with the Opinion of this Court, have settled the issue of 'legality' ".3 And on the issue of the legality and validity of the United Nations activities, Judge Petren observed that "these resolutions may afford States, whether Members of the United Nations or not, legitimate grounds for taking up a position in their legal relationships with South Africa 1 Eg, GA Res 2145 (XXI) and 2248 (S-V) and see also supra Chapter IV. 2 Namibian Opinion: ICJ Reports 1971, pp. 46-47, 58. 3 Ibid., Sep. Op., at p. 165; Judge Padilla Nervo stated: "It should be the duty of every Member of the United Nations: to recognize the authority of the United Nations to administer the Territory of Namibia". Ibid., Sep. Op., at p. 120; And Judge De Castro, on the other hand, stated: "States should regard as ineffective clauses in any treaty which recognize the authority of South Africa in the Territory of South West Africa. New treaties with South Africa may not contain such clauses". Ibid., Sep. Op., at p. 219. See also, Rosalie P. Schaffer, "The Extension of South African Treaties to the Territories of South West Africa and the Prince Edward Island". 95 South African Law Journal (1978) pp. 63-70.

37 which otherwise would have been in conflict with rights possessed by that country. At the legal level, the resolutions in question have created, not obligations, but rights to take action against South Africa because of its continued presence in Namibia". In this regard rights derived from acts of the illegal administration of South Africa in Namibia, in all probability, would not receive judicial support in an international tribunal. Such a judicial decision would thus be in accordance with the legal rules of the United Nations law of decolonisation. The Decree on Natural Resources of Namibia is not only a measure in the implementation machinery of the United Nations resolutions to decolonise Namibia; but is equally a measure intended to protect the natural resources of Namibia. Thus, in this regard, the Decree is in line with the legal position developed by the United Nations on the 2 legality of foreign investments with regard to natural resources. Additional to our analysis thus far and in support thereof, is the legal significance of any action which opposes and contradicts a operemptory norm of general international law' - Jus cogens. According to Article 53 of the Vienna Convention on the Law of Treaties " a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law". The principle of self-determination, which the Decree seeks to advance, is now widely accepted as a 'peremptory 1 Namibian Opinion: ICJ Reports 1971, Sep. Op., at p. 137; of course, we have demonstrated in this study that the resolutions of the General Assembly in certain instances could generate legal significance which would demand compliance from the Member States, see supra, Chapter IV, Sec. 2. 2 See, GA Res 626 (VII) of 21 December 1952, which set in motion the notion of economic self-determination; GA Res 1314 (XIII) of 12 December 1958; GA Res 1803 (XVII) of 14 December 1962, this resolution is cited in the preambular paragraphs to the Decree; GA Res 2158 (XXI) of 25 November 1966; see also Ian Brownlie, Principles of Public International Law, 2nd Edition. Oxford: Clarendon, 1973, pp. 516 et seq. norm of general international law'.1 To that extent no action which derogates from it could thus have legal validity. The activities carried out by South Africa in relation to Namibia are opposed to the promotion and the realization of the principle of self-determination, according 2 to the rules developed by the United Nations, such activities are therefore not only illegal but also void. The only valid and enforceable acts are those of the United Nations Council for Namibia. Alternatively, the municipal courts could consider the overall impact of the United Nations resolutions on permanent sovereignty over natural resources and on decolonisation as having generated a distinct international public policy in these areas. That is an international public policy against exploitation of natural resources in underdeveloped countries, particularly in the non-independent ones, if such exploitation does not benefit sufficiently the population of the country concerned. Namibia is a fitting example of the above prohibition. In this regard the domestic courts could refuse to enforce the agreement between South Africa and the company which purports to transfer ownership of the Namibian products to the company on the grounds that such agreement was contrary to the international public policy. In this way the vexed question of enforceability of United Nations resolutions in municipal courts would be avoided. The Supreme Court of the Federal Republic of Germany on the grounds of international public policy refused to uphold contract which violated a national decree and which was also contrary 1 See supra Chapter IV, Sec. 3; and Article 53 of the Vienna Convention on the Law of Treaties, states: "For the purpose of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international comunity of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character". 2 See supra Chapter V, Sec. 3; infra Ibid. Sec. 4. to the resolutions of UNESCO on protection of national arts and heritage.1 The German Supreme Court did not apply the foreign lag, but on the basis of international public policy, which was generated by the resolutions of UNESCO. It refused to-protect the rights derived from such transaction. On the same reasoning the domestic courts would not apply the Namibian Decree on Natural Resources, but on the basis of international public policy the rights acquired would not be upheld. Thus, as a result of this precedent any transaction involving Namibian products entered into after the termination of the mandate of South Africa to administer Namibia would not be recognized in domestic courts of the Member States of the United Nations. Lack of institutionalized enforcement mechanism of the decisions of international organisations is only a distinctive feature of the under2 development of the international legal system. But as the successful implementation of the United Nations rules on decolonisation becomes a distinct probability,3 the application of and compliance with the Decree on Natural Resources of Namibia would become likely. Furthermore, in the Decree the independent Government of Namibia would have an international legal right to penalize those foreign companies which violated this Decree, if still operating in Namibia.4 1 See, Schermers, loc. cit., pp. 90-92. 2 See generally W. Michael Reisman, "Sanctions and Enforcement" in The Future of the International Legal Order, Cyril E Black and Richard A Falk (eds), Princeton: Princeton University Press, 1971, Vol. III, pp 273-335. 3 See below Sec. 4. 4 Significantly, it seems, that the Member States of the UN would not intervene diplomatically to protect the interest of such companies. See, eg, the position of the US Government as stated by the Assistant Secretary for African Affairs, 71 Department of State Bulletin (1974) p. 842. Probably the position of the US'Government coupled with the Decree influenced some of the US based companies to pull out from Namibia; see also, UN ECOSOC Doc E/CN.4/Sub.2/383, 18 July 1977, pp. 43-46, "The Adverse Consequences for the Enjoyment of Human Rights of Political, Military, Economic and Other Forms of Assistances given to the Colonial and Racist Regimes in Southern Africa", Special Rapporteur Mr. Ahmed M. Vh.%14fp. s -L 3 THE LEGAL CHARACTERISTICS (OF THE STATEHOOD) OF NAMIBIA Namibia has acquired certain characteristics which give the territory unique status. The consideration of these characteristics and the legal position they lend to Namibia should be viewed in the general principles of decolonisation generated by the United Nations. The United Nations did not assert that Namibia was an independent State or that its characteristics of statehood had all been acquired. What has been asserted is that Namibia is now under the direct authority of the United Nations; and that the principle of self-determination should be applied to Namibia. However, the manner and conditions under which Namibia has been admitted to full membership of certain international organisations presents the legal characteristics of Namibia in the same category as those of an independent State. For after all the admission of an entity to full membership in international organisations whose membership is open only to (independent) States is a prima facie 1 evidence of statehood of such an entity. The legal characteristics of the statehood of Namibia, as will be shown shortly, appear to have been motivated by the concretization of the rules of international law concerning decolonisation rather than to facilitate the utilization of the attributes of a State. To that extent the features of statehood of Namibia which emerge from this study do not accord easily with the accepted legal requirements for statehood, which is traditionally a concept of sovereignty. Thus, Namibia is an illustrative model of the development and concretization of the principles of international law concerning decolonisation. For, if the traditional 1 See Ian Browlie, op. cit., p. 99.

383 characteristics of statehood were, at least in some measures, influenced by the phenomenon of colonisation, in the reverse process - decolonisation - the features of statehood of necessity would have to undergo some modi.fication, at least in conceptualization, to reflect the new phenomenon. The Namibian territory as a legal entity derives its legal characteristics from conventional principles and from the legal principles of international law. 1 But a caveat is appropriate: such characteristics were not permanent, but transitional, progressing finally to sovereign independence.2 The legal characteristics of statehood which the act of admission, among others, seems to confer upon Namibia should not be divorced from the phenomenon of decolonisation. The legal characteristics of statehood which Namibia depicts as a result of admission to full membership in some international organisations are thus an elaboration and affirmation of the principles of international law concerning decolonisation rather than of sovereignty; though the distinction is fine it should be noted. For otherwise, traditionally statehood requires, at least, an independent government which is effectively in control, and a degree of stability.3 From this perspective, it would be observed that it is the activities of the United Nations concerning Namibia, whose status are thus legally enhanced by admission of Namibia in international organisations, than the statehood of Namibia. The right of a dependent territory to attain independence is no longer in dispute. What is doubted, in the case of Namibia, is the legal effects of the processes followed by the United 1 See, International Status of South West Africa, Advisory Opinion: ICJ Reports 1950, p. 128, at pp. 141 et seq. 2 Thus the stricture of subsequent decolonisation acts, eg, the Namibian Opinion of 1971, as being contrary to the Advisory Opinion of 1950 is rather superficial; cf. Lawrence L. Herman, "The Legal Status of Namibia and of the United Nations Council for Namibia". 13 Canadian Yearbook of International Law (1975) p. 306. 3 See, eg, H. Lauterpacht, Recognition in International Law. Cambridge: Cambridge University Press, 1947, pp. 26-28.

Nations; these, therefore, are legally validated by the admission of Namibia in international organisations. In international law the act of recognition revolves around the doctrinal dispute between the declaratory and the constitutivist theories. In an era that may be termed of the self-determined nations, and under the United Nations developed rules of a basically objective principle of selfdetermination, the declaratory theory of recognition may appear to accord more with the practice of state in this respect. Yet, at the level of moulding and concretizing the principles of international law relating to decolonisation, the constitutivist theory could not be totally discarded. It seems to that extent the doctrinal difference is of less significance to our study, for in the context of decolonisation both could be of relevance to explain the legal rules that have emerged.2 Namibia as represented by the United Nations Council for Namibia was admitted to membership in certain international organisations on the basis of the General Assembly Resolution 32/9E of 4 November 1977, which "requests all specialized agencies and other organisations and conferences within the United Nations system to grant full membership to the United Nations Council for Namibia so that it may participate in that capacity as the legal Administering Authority for Namibia in the work of those agencies, organisations and conferences". This resolution is itself a part of the implementation mechanism for General Assembly Resolution 2145 (XXI) which revoked the mandate and placed the administration of the territory under the direct authority of the United Nations. Therefore, looked at from a different angle the acts of admission by these international organisations confirm the legal significance of the United Nations activities in its attempts to decolonise Namibia; hence the relevance of the constitutivist view. 1 Brownlie, op. cit., p. 89. 2 The difference in doctrine of the act of recognition is thus considered in this narrow Perception and not in its traditional mould, although,

To the extent that international organisations have full capacity in international law,1 to that extent their acts of admission may*be considered ordinarily to produce the same effects as those of States. The point is that international organisations where Namibia has been admitted as a full member have acted in such a manner that the legal authority of the UN Council as the administrative authority of Namibia could no longer be doubted, at least in such organisations. This fact is important, and its importance is that the legality of the acts of admission is derived from nowhere else, but from the United Nations activities themselves, mainly resolutions. The practice of state and of international organisation as it relates to their attempts to decolonise Namibia does not seem to accord squarely with theory. As indicated above the legal theory of statehood was basically propounded under a different milieu and for a different purpose; indeed, to a certain degree in opposition to the general tenets of international law concerning decolonisation. At that time of protectorates, colonies, etc. effectiveness became an important criterion of statehood.2 But, of course, even then effectiveness was not the beall and end-all. Where it is attained by violation of international law, effectiveness would not validate the illegal act.3 Equally, and in case of a decolonisation situation, effectiveness achieved by violation of the principles of self-determination, it seems, would not accord to such an entity the status of statehood.4 The illegal administration of South 1 See, Reparation for Injuries suffered in the Services of the United Nations, Advisory Opinion: ICJ'Reports 1949, p. 174. 2 James Crawford, "The Criteria for Statehood in International Law". BYIL (1976-1977) pp. 93-182 at pp. 144 et seq. 3 See, eg, Krystyna Marek, Identity and Continuity of States in Public International Law. Geneva: Librairie E. Droz, 1954. 4 This has been the position with regard to Rhodesia and the Transkei; see further the next section.

Africa in Namibia is the only factor which prevents the application of the rules of international law concerning decolonisation, which according to the estimation of the international community should apply. This illegal act of South Africa, the only factor retaining the status of a non-self-determined territory, thus negates the requirement of effectiveness for the determination of the statehood of Namibia. It should be pointed out, however, that although the application of the principle of self-determination may result in a non-independent entity; 1 it seems, by and large, and as it relates to colonial and/or foreign rule situation, assertion of statehood without application of the principle of self-determination would be unacceptable. For that reason the application of the principle of self-determination is one of the fundamental criteria of statehood.2 In the case of Namibia, it seems, the difficulty is with the theoretical perception of statehood, but not with the practice. The practice of the United Nations and its agencies as well as the practice of state presents a picture of, at least, "limited statehood".3 1 For example, association status or full integration into an independent State, see supra Chapter IV, Sec. 3; See also, CA Res 1514 (XV); Principle VI of Annex to GA Res 1541 (XV), cited with approval by the International Court in the Western Sahara A4visory Opinion: ICJ Reports 1975, p. 12 at p. 32. *2 For that reason the apartheid type of decolonisation which does not fulfil the requirements of the principle of self-determination does not give an acceptable status of statehood, hence the Transkei remains an entity of apartheid South Africa; on this point the General Assembly ruled: ... Condemns the establishment by the Government of SouthAfrica of Bantu homelands (Bantustans) and the forcible removal of the African people of South Africa and Namibia to those areas as a violation of their inalienable rights, contrary to the principle of self-determination and prejudicial to the territorial integrity of the countries and the unity of their peoples". Res 2775E (XXVI) of 29 November 1971; see also, GA resolutions: 2923E (XXVII) of 15 November 1972, pare 2' 3151G (XXVIII) of 14 December 1971, pare 14; 3324E (XXIX) of 16 December 1974, pars 10. 3 See, Henri-Juri Uibopuu's study (involving though different problems) in which the notion of " 'secondary' international legal personality" is perceived; "International Legal Personality of Union Republics of USSR", 24 International and Comparative Law Quarterly (1975) pp. 811845 at p. 812.

Namibia as represented by the United Nations Council for Namibia has been admitted to full or associate membership in several international organisations and UN agencies. Where the constitution of an organisation," for example, the United Nations1 restricts membership only to States, an admission of an entity is thus a prima facie evidence of the statehood of such an entity. Namibia as represented by the UN Council for Namibia was admitted to full membership in the Food and Agriculture Organisation (FAO);2 the International Labour Organisation (ILO);3 the United Nations Confirence on the Law of the Sea granted Namibia as represented by the UN Council full status;4 so too did the United Nations Conference on Desertification (29 August to 9 September 1977).5 In the following instances associate membership was accorded to Namibia: World Health 6 Organisation (WHO); United Nations Educational, Scientific and Cultural Organisation (UNESCO);7 and the World Meteorological Organisation (WHO) accorded Namibia only observer status at its congresses and meetings.8 1 Article 4 of the Charter. 2 Report of the Conference of FAO, Nineteenth Session, Rome (1977), C.77/Rep p. 75. 3 International Labour Conference, Sixty-Fourth Session, Geneva, (1978), Provisional Records, No. 28, p. 9. 4 UN Doc A/32/24, Report of the UN Council for Namibia, 1977, Vol. I, p. 18. 5 Ibid., p. 20. 6 UN Doc A/9624, p. 42; The Constitutional requirements of WHO which demands that the representative of the member State should first be a citizen of that State and secondly a medical doctor was solved by the UN Council appointing Dr. Libertina Amathila, a representative of SWAPO, as its representative, see UN Doc A/10024, p. 66. 7 UN Doc A/31/24, 17 November 1976, p. 12j Report of the UN Council for Namibia. 8 UN Doc A/10024, p. 65. The significance to our study of admission by a number of international organisations to full or associate membership of Namibia-lies, in relation to the relevant constitutional provisions and the status they lend to Namibia. The constitution of FAO, like most UN agencies, provides for associate membership of "any territory or group of territories which is not responsible for the conduct of its international relations upon application made on its behalf by the Member Nation or authority having responsibility for its international relations".1 Yet, unlike WHO and UNESCO, Namibia was admitted to full membership. This could only have been done under the constitutive clauses which provide for States.2 With regard to the admission of Namibia as represented by the UN Council for Namibia to full membership in the International Labour Organisation (ILO), however, the constitutional obstacles arising therefrom were thoroughly considered. The legal opinion of the Legal Adviser of the Conference advised against admission of Namibia to full membership in the ILO.3 The opinion of the Legal Adviser of the Conference was based on two broad premises; first, the fact that Namibia is not a State under international law, and, secondly, on the non- effectiveness of the legal administering authority. On the issue of statehood, the opinion of the Legal Adviser of the Conference argued that the constitution of the ILO allows membership only to States; and since Namibia as a non-self1 Paragraph 3 of Article II of the Constitution of FAO, 16 October 1945, as amended in 1965; This clause, what one may term the dependent territories' clause, is common to the constitutions of a number of agencies, notably: WHO art. 8; UNESCO Art. II (3); WMO Art. 3 (d) (e) (f); GATT Art. 33; IMCO Art. 9. 2 It does not seem that the uniqueness of Namibia was considered as a legal obstacle to membership. Indeed, the contribution of Namibia was assessed at par with the other African members admitted at the same time, such as, eg, Angola, Mozambique, see Report of the Conference of FAO, Nineteenth Session, Rome, 1977, C.77/Rep., p. 73. 3 International Labour Conference, Sixty-Fourth Session, Geneva, 1978, Provisional Record, No. 24, Appendix II, p. 21; The delegation of the UN Council for Namibia replied to the opinion of the Legal Adviser of the Conference, ibid., Appendix IV, p. 23. determined entity is not in that sense a State, therefore she could not join the ILO as a full member. The support for this propostion was sought from the advisory opinion of the Permanent Court of International Justice in the case concerning the application for membership in the ILO of Danzig.2 "As the result of the Treaty of Versailles, the conduct of the foreign relations of the Free City is entrusted to the Government of Poland, and that in consequence the Free City is not in a position to oblige the Polish Government to take any action in the conduct of those foreign relations which is contrary to the interests of Poland itself".3 On that fact the Permanent Court advised against admission of the Free City of Danzig in the ILO.4 It is pertinent to observe that in the case of Namibia the application for membership in the ILO, which was submitted by the legal administrative authority, was also intended to enhance the legality of the UN Council as administrative authority of Namibia. Thus, the defect that was advanced as a bar to membership was itself intended to be authoritatively counteracted by the very act of 1 Ibid., Appendix II, p. 20 at p. 21. 2 Permanent Court of International Justice, Series B, No. 18 (26 August 1930), Free City of Danzig and International Labour Organisation, Advisory Opinion; The Opinion of the Court received only a narrow majority, of 6 votes to 4. 3 Ibid., p. 15. 4 This Opinion was not really relevant to the problem presented by the application of the UN Council for Namibia, and it seems should not have been relied upon. For the problem with the Free City of Danzig was caused by an international convention as well as the refusal of the legal authority for the international affairs of Danzig to support the application. Thus, for an effective use of an international organisation, such as the ILO, both units should agree, but in this case Poland, the legal authority for the international affairs of Danzig refused. Whereas, in the Namibia case there was no such dichotomy. In fact, the application was submitted by the entity with the power to exercise international relations on behalf of Namibia. Indeed, the application itself was an exercise of such authority. Although, this view the Conference did not emphasize in its decision, it is nevertheless in accord thereof.

C9 admission to membership.1 On the other hand, the element of ineffectiveness was considered by the opinion of the Legal Adviser of the Conference as a hindrance to real membership in the Organisation; because it would be difficult to implement the decisions of the Organisation. Again, the Conference of the ILO overcame this point by noting that the illegality is the cause of the ineffectiveness of the administration of the UN Council for Namibia. And, therefore, it seemed to have considered that the act of admission itself was a factor which would accelerate the international community's efforts to remove the illegal administration in Namibia, and thereby enable the UN Council to be effective. The sui generis nature of not only the question of Namibia but equally of the status of (the territory of) Namibia finally weighed more than the constitutional considerations and the statehood of Namibia, and Namibia was admitted to full membership in the ILO.2 The non-self-determined status of Namibia was advanced as a bar to membership in the ILO, for only States could be members. This obstacle was countered, however, by the precedents set by the UN Conference on the Law of the Sea and by FAO.3 The admission of Namibia in the ILO became another, very pertinent, precedent. However, it is not possible to perceive any other characteristic of statehood in this act. Except, as stated above, the legal characteristic of statehood, it seems, would not be denied if the non-self-determined status of a territory are due to the unco-operative attitude of the administering authority (in this regard illegal).. This characteristic of statehood, namely, independence, it seems, could be satisfied if the theoretical 1 Indeed, this fact was stressed by most delegates, see, eg, Niger, International Labour Conference, Sixty-Fourth Sess., Provisional Record, No. 28, p. 3. 2 Ibid., p. 9. The application needed two-thirds of the delegates to vote for it, out of 480 delegates it thus needed 320 votes in favour, and it received 368; ibid. 3 Ibid., No. 24, Appendix IV, pp. 23-24.

J 7 L. considerations of statehood and the international law requirements are met, even if temporarily forcibly prevented from effective implendentation.1 The International Labour Conference found itself constrained to act otherwise, despite the contrary legal opinion of the Legal Adviser of the Conference. A certain degree of compulsion to follow the resolution of the General Assembly is detectable in the attitudes of the delegates to the Conference. This fact substantiates in practical circumstances bur thesis on the emergence of the United Nations law of decolonisation; it seems the International Labour Conference considered the rules of such a legal order as of legal significance and, therefore, is obliged to abide by them. 4 DOMESTIC AND INTERNATIONAL DECOLONISATION The final agreement between the Contact Group (the Five Western Power Members of the Security Council: Canada, France, Germany (Federal Republic), United Kingdom and the United States of America) and South Africa on the process for the decolonisation of Namibia shows that in their negotiation the two sides did not appreciate fully the philosophical bases of the rules of international law concerning decolonisation.2 As a result a problem of interpretation of the terms used in the agreement could arise; particularly as regards the scope and range of certain rules 1 Indeed, the analogy of occupied countries during the Second World War was often referred to, see eg, Ibid., No. 28, p. 5 Government Adviser of Tunisia. 2 See the Report of the Contact Group contained in the Letter dated 10 April 1978 from the Representatives of Canada, France, Germany, (Federal Republic), the United Kingdom of Great Britain and Northern Ireland and United States of America addressed to the President of the Security Council, "Proposal for a Settlement of the Namibia Situation", UN Doc S/12636; of course, in a negotiation of this type there must be a give and take attitude. But the point being made is however quite different. referred to in the agreement. Despite the fact that the Five Western Powers were negotiating with the Government of South Africa not as an organ of the United Nations but as individual States, nevertheless the broad principles for the decolonisation of Namibia were adhered to. Thus, the agreement would have to be interpreted in the context of the United Nations law of decolonisation. Since South Africa does not accept the principles of decolonisation as developed by the United Nations, it seems, difficulties are likely to arise in the implementation of this agreement. The broad adherence by the Five Western Powers in their negotiations with South Africa to the legal rules of international law concerning decolonisation as developed by the United Nations is a significant point which underlines further the main conclusion of our study, namely, that the activities of international organisations, in certain appropriate circumstances and provided certain conditions are fulfilled, could lead to emergence of a distinct legal order. In the absence of good faith the contradiction, however minor it may be, between the agreement and its philosophical bases could present problems in implementation. This seems to be the dilemma faced by the Secretary-General of the United Nations operational scheme for the Niba2 3 decolonisation of Namibia. As has been observed, the principle of 1 See supra Chapter III, Sec. 2; Chapter V, Sec. 4. 2 See, the Report of the Secretary-General submitted pursuant to paragraph 2 of Security Council Resolution 431 (1978) concerning the situation in Namibia, UNSC Doc S/12827 of 29 August 1978; the response of South Africa in a letter dated 6 September 1978 from the Minister of Foreign Affairs of South Africa addressed to the Secretary-General, UNSC Doc S/12836; response of Namibians: Letter dated 8 September 1978 from the President of the South West Africa Peoples Organisation addressed to the Secretary-General, UNSC Doc S/12841; Letter dated 5 October 1978 from the Five Western Powers addressed to the President of the Security Council (enclosing a letter from NNF) UNSC Doc S/12880. 3 See supra Chapter IV, Sec. 3. self-determination as it has developed with regard to decolonisation, and particularly in situations of settler-colonialism, has acquired certain specific peculiar contents. The process of decolonisation in such situations is more than mere application of the principle of selfdetermination. The one-man one-vote elections should also demonstrate visibly as a means by which the imbalance derived from the settlercolonial situation would be measurably redressed and corrected. In this regard the contents of the principle of self-determinationI are not value free. It should be emphasized that this seems to be a unique position, which is perhaps only applicable to the decolonisation processes in Southern Africa. It is from this perspective that the legal framework 2 of the United Nations Transitional Assistance Group (UNTAG) should be viewed. Needless to say, the legal perception of the South African Government of the processes of decolonisation is different from the immediately above stated.3 It seems that to the Government of South Africa structural 4 appearances of the attainment of self-determination is considered sufficient. Since the philosophical bases of the principle of self1 This point has been demonstrated in this study, by the slab by slab build-up of the contents of the principle of self-determination, as exemplified by the Namibia oquestion, see Ibid. 2 See, the Report of the Secretary-General, UNSC Doc S/12827. 3 Hence the dismay that characterized the response of the Government of South Africa to the proposal of the Secretary-General, it seems that South Africa's leaders tend to think that now that they have accepted the concept of one-man one-vote for and having repealed some of the discriminatory laws in Namibia, they should be accepted by the international community as "liberators", see eg, the letter of the Foreign Minister of South Africa, UNSC Doc S/12836. 4 Eg, written constitutions, flags, etc. as typified by the Transkei; for such purely constitutional consideration for the attainment of the principle of self-determination, as it were, paper self-determination, see William B. Harvey and W.H.B. Dean, "The Independence of Transkei A Largely Constitutional Inquiry", 16 Journal of Modern African Studies, (1978), pp. 189-220. determination, as demonstrated by this study, South Africa does not accept, nor does she for that matter accept all the legal rules 6f selfdetermination that have emerged largely through the activities of the United Nations. To the Government of South Africa her "domestic decolonisation" through the Bantustan system2 is the same thing as decolonisation according to legal rules of international law. The contention that "domestic decolonisation" of the type of the South African Government, the Bantustans, achieves the same purpose as "international decolonisation", that is, decolonisation in accordance with legal rules of international law, namely, the realization of the right to self- determination,3 is unfounded and false. Admittedly, in an ordinary colonial or foreign rule situation, without the element of settlerism, "domestic decolonisation", in the sense of the colonial metropolitan governent implementing the processes for the realization of the right to self- determination, was and is an effective mode of decolonisation and is internationally recognized. Indeed, that was the mode greatly used in the decolonisation processes of, for example, the African Continent. However, in the case of Namibia, in particular, the situation is entirely different. Not only because of the element of settlerism, which lends colour to the contents of the legal rules of international law relating to the implementation of the principle of self- determination; but equally important the Namibia 1 See supra Chapter V 2 See generally, Gwendolen M. Carter et al., South Africa's Transkei: The Politics of Domestic Colonialism. Evanston (III). Northwestern University Press, 1967; C.R. Hill, Bantustans: The Fragmentation of South Africa. London: Oxford University Press, 1964; Alexander Kirby, South Africa's Bantustans: What Independence for the Transkei. Geneva: World Council of Churches, 1976; Henry J. Richardson, III, "Self-Determination, International Law and the South African Bantustan Policy", 17 Columbia Journal of Transnational Law (1978) pp. 185-219. 3 For such contention, see Harvey and Dean, loc. cit. question has been the vehicle for the formulation of certain concrete and clear principles of international law concerning decolonisation which could not be ignored. The Bantustan system, the South African Government's type of "decolonisation", is a device designed to legitimize, internationally, colonial- settlerism. In South Africa where it has been perfected and applied, this fact stands out.I Even in Namibia the "domestic decolonisation" envisages the retention by the minority-white-settlers of the privileges and benefits acquired through and during the colonial (foreign rule) period.2 The Bantustan system is the post-decolonisation era's theoretical attempt by the South African Government to reduce the crude ideology of apartheid into an internationally acceptable system of domination. Whereas the early version of apartheid policy, with its discriminatory signposts, was centred on physical separation of the races. And by draconian legal system, military and other coercive force, political and economic systems, it attempted undisguised, total and complete domination by the white-settlers of the Africans. The Bantustan system, though still centred on race, attempts to make a geo-political separation. Thus, it is unrealistically presumed that the question of political independence and human rights would be solved by the Bantustan system, The Bantustan system, in one respect, is an attempt, though futile, to place the whiteminority-settlers' domination in Southern Africa into post-decolonisation contours. 1 One commentator considered that "the Bantustans are an exercise in crisis management", Alexander Kirby, loc. cit., p. 9. 2 The constitutional proposals of the Turnhalle Conference are now adopted by the Democratic Turnhalle Alliance, an outgrowth of the former, which would allow ethnic groups to control the local administration, thus a retention of the basis of the Bantustan policy; see, for the constitutional proposals, J.H.P. Serfontein, Npmibia? London: Fokus Suid Publishers, 1976.

39/ of territorial integrity, the fear and greed of the white-settlers was attempted to be assuaged by ethnically determined federal structure.2 This proposition aims at each ethnic group to control its local affairs, and then the various ethnic groups to federate. But issues that matter in a settler-colonial situation, for example, the question of who resides where, and engages in what type of activities, and what amenities will be provided for, all these would be controlled at the ethnic level.3 This proposition of a federal structure does not only violate the content of the principles of self-determination in the sense that the requirement of universal adult suffrage is circumscribed by the ethnic factor. It is also constitutionally unworkable. For it does not provide for, even in the abstract, sharing of power, checks and balances; the real power would still be retained by the white ethnic group, the various other ethnic groups would only have a facade of power. The Five Western Powers lent their good offices to the efforts of the United Nations to resolve the Namibia question by mainly attempting to find an acceptable implementation mechanism for the Security Council Resolution 385 (1976).4 This resolution recites all the main resolutions of the General Assembly and of the Security Council on the question of Namibia; and reiterates the national unity and the territorial integrity of Namibia, envisages the holding of free and fair elections I See supra Chapter IV, Sec. 3. 2 The Turnhalle Constitutional Conference's proposals, see p. 395, note 2, now adopted by the Democratic Turnhalle Alliance, ethnic federation is the pivot of the device by which the white-minority-settlers would retain their economic power and thus be able to control the country. 3 This means, eg, that the group in majority, and all the white races will count as one ethnic group, in a particular area will have the right to admit or to refuse any member of the other ethnic groups. Because of the apartheid system today the white ethnic group is in the majority in the centres of all the major towns. Thus that structure will remain as it is. 4 See, UN SC Doc S/12636. under the United Nations supervision and control, and demands that the South African Government withdraws its illegal administration from Namibia. In fact, it was an implementation mechanism for the entire legal edifice for the decolonisation of Namibia that it projected. 1 Consequently, the proposal of the Secretary-General for the implementation of the Contact Group's proposal is broad and wide in its theoretical perception. The proposal of the Secretary-General envisages the creation of an atmosphere which is free of impediments and constraints both physical and psychological resulting from the long rule by a settlercolonialist regime. This is intended to be achieved by a massive United Nations presence in Namibia.2 Thus, the Secretary-General was caused to emphasize that "surely the objective is not simply the holding of elections by a certain date, but the holding of elections which are manifestly free and fair".3 The proposal of the Secretary-General for the decolonisation of Namibia amply accentuates the legal force of the rules of the United Nations law of decolonisation, of course, as well as those of general international law. It has been shown4 in this study that clearly formulated and delimitated implementation mechanism helps to concretize and to amplify the legal significance of the resolutions of the United Nations; and this is a dual effect process. 1 UNSC Doe S/12827. 2 Ibid., The number of the military component of UNTAG seems not to be the real issue, despite the fact that South Africa made that their main objection, see UNSC Doc S/12836; this demonstrates vividly the divergence between the philosophical bases of the United Nations efforts to decolonize Namibia and the perception by the leaders of South Africa of the principle of self-determination. 3 UNSC Doc S/12869, p. 3. 4 See supra Chapter IV, Sec. 2.

Thus the United Nations Transitional Assistance Group (UNTAG), the implementation mechanism, which is to supervise and control the processes of decolonisation of Namibia, should not only make sure that the elections are fair but equally that such processes for decolonisation are reasonably within the ambit of the rules of international law on decolonisation.1 From this perspective UNTAG could thus be a monumental and demonstrative experimentum crucis of the main thesis of our study. Although it is not the purpose of this study which is devoted to the evolution of the legal principles relating to decolonisation as exemplified by the Namibia question, to go into the purely political aspect of the question nor to predict the political outcome of the Namibia question. It is clear, however, that any solution of the Namibia question which will be inconsistent with the United Nations law of decolonisation (as considered in detail in this work) would not be accepted or recognized by the international community. 1 It could be contended, from the analogy of the Libyan and the West New Guinean precedents, that in view of the Five Western Powers Members of the Security Council, the main trading partners of South Africa, having negotiated the implementation mechanism, the legal significance of such implementation mechanism is derived from that fact. This fact could not be overlooked, but our contention is equally valid; if anything the intervention of the Five Western Powers was made that much easier because of the legal rules developed by the United Nations on decolonisation. On the evolvement of the United Nations in Libya see Pelt, op. cit., Philip C. Jessup, The Birth of Nations. New York: Columbia University Press, 1974, esp. pp. 215 et seq. See also, the privately negotiated agreement between Indonesia and the Netherlands on the decolonisation of West New Guinea, negotiated under the mediation of Ambassador Ellsworth Bunker at the request of the Secretary-general of the United Nations. UNGA Doc A/5170 of 20 August 1962. Though this was an agreement between two sovereign States, it was nevertheless noted by the GA and implemented by 1he United Nations under UNTEA, ibid., p. 3, para. 3.

CONCLUS ION At the close of this study it is appropriate to attempt to present not only the main legal propositions which emerge from it but also the conclusions reached on the key issues of the protracted question of Namibia. In this regard we would reiterate the conclusions reached in the three main issues in the study: first, the obligation to place Namibia under the Trusteeship System of the United Nations; second, the 1966 Judgment of the International Court of Justice; and third, though of a wider legal significance, the legal status and effect of the decisions of the organs of the United Nations concerning the question of Namibia. The Namibia question also covers concrete outstanding problems relating to territorial issues and the rights of the inhabitants which have to be considered against a certain historical background. For the Namibia question is also, of course, the result of a certain historical phenomenon which was internationally accepted in its time, namely, colonialism. It has been shown in the study that the principles of decolonisation could be traced to the mandates system. The compromise reached between President Wilson's position of international accountability and the Dominion Premiers' position of annexation led to the division of the mandated territories into three classes. place Namibia under the Trusteeship System of the United Nations, South Africa persisted in her position to maintain the status quo. She argued that she was not under any legal obligation to enter into an agreement with the United Nations by which Namibia would be placed under the trusteeship system. We have shown in the study that the obligation of the mandatory powers and of the administering authorities to enter into an agreement with the United Nations by which a mandated territory or a non-selfgoverning territory would be placed under the Trusteeship System of the United Nations has different foundations in law. The non-obligatory element in Chapter XII of the Charter of the United Nations for the placing of dependent territories under the trusteeship system should be interpreted differently as regards the mandated territories as opposed to the ordinary colonies. In view of the existing international agreements relating to the mandated territories, which created a special regime for these territories, the voluntary act of the mandatory powers to enter into trusteeship agreement with the United Nations is thus not completely unrestricted. Whereas in the case of the ordinary colonies the voluntary act of the administering authority in entering into such an agreement is entirely in the context of sovereign authorityThe lack of sovereignty by the mandatory powers in the mandated territories is also amply shown in the study in connection with the withdrawal of the mandate of South Africa to administer Namibia. The practice of the organs of the League of Nations, judicial authorities of both domestic and international tribunals as well as the practice of the mandatory powers themselves show that the mandatory powers were considered as not having full authority in the mandated territories. In fact, the South African Parliament itself conceded this point and amended an Act of Parliament which gave the impression that South Africa had unfettered authority in Namibia.

This division placed the Class 'C' mandated territories, in which Namibia was placed, very close to actual colonies. However, right Ehrough the generation of the mandates system the non-colonial characters of the mandated territories, particularly those of Class 'C', was rigorously defended by the Permanent Mandates Commission. In fact, the Permanent Mandates Commission got the mandatory powers to accept the position that they did not have unfettered authority in the mandated territories. This position was also supported by the domestic courts. As has been shown in the study, this fact was very pertinent to the withdrawal of the mandate of South Africa to administer Namibia by the United Nations in 1966. South Africa's hopes to legally incorporate Namibia into the Union of South Africa after the Second World War and the demise of the Leagueof Nations were frustrated by opposition of the anti-colonial forces. After the Second World War a determined Third World opposition to colonialism emerged; and the mandated territories which were, in theory at least, not colonies,provided as it were a test case. In the face of such a strong opposition South Africa abandoned the idea of incorporating Namibia, but at the same time she declined to place Namibia under the Trusteeship System of the United Nations. This position of South Africa raised complicated problems of interpretation of the various relevant provisions of the Covenant of the League of Nations, of the Mandate for South West Africa and of the Charter of the United Nations. On several occasions the United Nations sought the assistance of the International Court of Justice. The first opinion on the question of Namibia given by the International Court of Justice ruled that Namibia was a territory with international.status and that the United Nations had assumed the supervisory functions formerly exercised by the League of Nations. Despite the overwhelming and consistent demand by the Member $tates for South Africa to

44V1 law concerning decolonisation. For, in the first place, the authority of South Africa in.Namibia was limited and was also subjected to interi national supervision. In the second place, the United Nations could legally treat the question of Namibia as a decolonisation issue. On both accounts the action of the United Nations was legally sound. Further, the study has shown that the 1966 Judgment of the International Court of Justice in the South West Africa Cases is, with due respect, highly questionable. Not only was the 1966 Judgment contrary to the objective of the mandates system as amply shown by the historical background, but it also contradicted the entire jurisprudence of the International Court on the Namibia question up to then. Equally, the reasoning of the Court on which it built its theory of legal interest or right of the Applicants is demonstrated to be wholly in conflict with the contemporaneous documentary evidence. The decision of the Court on this point is based on two propositions. First, that (at the material time) the notion of judicial supervision was not considered and therefore was not provided for in the provisions regulating the mandates system; secondly, that the relevant clauses of the Covenant of the League of Nations and of the Mandates did not give the Member States of the League enforceable interests or rights in matters relating to the well-being and development of the inhabitants of the mandated territories (the 'conduct provisions'). The archival documents of the League of Nations show that the International Court erred on both these points. The question of judicial supervision was considered during the establishment of the mandates system and was specifically provided for in the provisions of the Covenant of the League of Nations and in the Mandates. Furthermore, as has been shown the well-being and development of the inhabitants of the mandated territories was one of the main reasons

A significant part of the decisions of the United Nations concerning its attempts to decolonise Namibia derive their authority from the resolutions of the General Assembly of the United Nations. Thus, their legal significance is founded on the legal rules generated by the United Nations. Throughout the study we had to steer cautiously between, on the one hand, the classical sources of legal obligation in international law and, on the other hand, the recommendatory nature of the decisions of the United Nations. The decisions of the General Assembly of the United Nations on the question of Namibia reveal a high degree of consistency as well as a strong expectancy of complaince which in due course produced distinct and verifiable rules. Thus, on certain specific issues, such as decolonisation, as exemplified by the question of Namibia, a distinct legal obligation could be generated mainly through the activities of the United Nations. Perhaps, the pitfall of a number of international law commentators is to end at the theoretical level. Their argument goes, that since the Charter of the United Nations stipulates that resolutions of the General Assembly are recommendatory and since the rules of customary international law are separated from ordinary custom, moral rules or usage by the legal conviction of the complying States that they are legally obliged to act in a particular manner; therefore, the resolutions of the General Assembly are outside the mechanism of law-making process. This is obviously true. But it is not the whole truth. The important factor, however, is that the Member States of the United Nations when participating in the activities of the organisation reveal their understanding of the legal position of a particular issue. It is this revealed understanding which is relevant in the formation of rules of customary international law. Therefore, the practice of the United Nations (international organisations) should not be totally ignored. For a precise understanding of a number of States is at once clearly shown in their statements and actions on a particular type of resolutions before an organ of the United Nations. The persistent pattern, as depicted by this study, for example, of international organisations could not, particularly when it is followed with predictable consistency, be totally ignored. In fact, previous decisions of the international organisations are treated by the States Members as of legal significance. This fact has been shown, in this study, in the admission of Namibia in a number of international organisations, and there even decisions of a different organisation were treated as legally significant. This study has thus demonstrated that if decisions of international organisations had clear and concrete content and with a clear intention that they should be implemented, the addressee was unmistakenly indicated, such decisions had received constant overwhelming support from the members, the legal validity of such decisions was constitutionally uncontestable and the objectives to be attained were not only attainable but equally in the competence of the organisation, and the implementation machinery was clearly set out; if most of these conditions are fulfilled, the cumulative effect, after a reasonable length of time, it that distinct and verifiable rules would emerge.from which the organisation is not likely to deviate. This point has been amply demonstrated by the study of the international organisations' attempts to decolonise Namibia. It is significant to emphasize in conclusion, and as a further illustration of the foregoing, that an entity created by a resolution of the General Assembly, the United Nations Council for Namibia. is, as this study has shown, accepted as legally capable to represent Namibia internationally. This means that States and international organisations have accepted that the United Nations Council for Namibia has the legal capacity to act in the international arena, the capacity to enter into international agreements, the capacity to pursue claims before inter- clearly shown in their statements and actions on a particular type of resolutions before an organ of the United Nations. The persistent pattern, as depicted by this study, for example, of international organisations could not, particularly when it is followed with predictable consistency, be totally ignored. In fact, previous decisions of the international organisations are treated by the States Members as of legal significance. This fact has been shown, in this study, in the admission of Namibia in a number of international organisations, and there even decisions of a different organisation were treated as legally significant. This study has thus demonstrated that if decisions of international organisations had clear and concrete content and with a clear intention that they should be implemented, the addressee was unmistakenly indicated, such decisions had received constant overwhelming support from the members, the legal validity of such decisions was constitutionally uncontestable and the objectives to be attained were not only attainable but equally in the competence of the organisation, and the implementation machinery was clearly set out; if most of these conditions are fulfilled, the cumulative effect, after a reasonable length of time, it that distinct and verifiable rules would emerge.from which the organisation is not likely to deviate. This point has been amply demonstrated by the study of the international organisations' attempts to decolonise Namibia. It is significant to emphasize in conclusion, and as a further illustration of the foregoing, that an entity created by a resolution of the General Assembly, the United Nations Council for Namibia. is, as this study has shown, accepted as legally capable to represent Namibia internationally. This means that States and international organisations have accepted that the United Nations Council for Namibia has the legal capacity to act in the international arena, the capacity to enter into international agreements, the capacity to pursue claims before inter- 4uO national tribunals, and conversely the capacity to be held responsible for the breach of its international obligations. The emergence of the United Nations law of decolonisation is one of the major achievements of the United Nations. The application of the principles of this law to Namibia, as the study has amply shown, has not been an easy process in view of the vehement resistance of- South Africa. This does not mean, however, that all the decisions of the organs of the United Nations relating to Namibia do not constitute legal obligations; for any solution given to the Namibia question which is inconsistent with these decisions would not only be legally invalid but also, and in consequence, internationally unacceptable.

NAMIBIA BY RESOLUTIONS A Legal Analysis of International Organisations' Attempts at Decolonisation BIBLIOGRAPHY I OFFICIAL PUBLICATIONS 1 South Africa Reports of the Union of South Africa concerning the Administration of South West Africa, for the years 1920-1939. Pretoria, Government Printer. Ibid., for the year 1946, Pretoria, Government Printer, 1947. Report of the South West Africa Commission, Pretoria, Government Printer, 1936. Report of the Commission of Enquiry on the Rebellion of the Bondelzwarts, 1922, Pretoria, Government Printer, 1923. Memorandum by the Administrator of South West Africa on the Report of the Commission appointed to Enquiry into the Rebellion of the Bondelzwarts. Cape Town, 1923. Report of the Commission of Enquiry into South West African Affairs, 1962-1963. (Chairman F.H. Odendaal, The Odendaal Report). Pretoria, Government Printer, 1964. South West Africa Survey, 1967. Department of Foreign Affairs, Pretoria, Government Printer, 1967. South Africa's Reply to the Secretary-General of the United Nations. Department of Foreign Affairs, Pretoria, Government Printer, 1969. (UN Doc S/9463 (3 October 1969) ). Debates of the House of Assembly, Union and Republic of South Africa.

The requirement that South Africa should negotiate with the United Nations with the intention of reaching an agreement whereby Namibia would be placed under the trusteeship system, referred to in several judicial pronouncements at the International Court of Justice, is thus legally sound and historically correct. Therefore, Chapter XII, particularly Article 77, of the Charter of the United Nations could not be interpreted in such a way as to obstruct the decolonisation development of a mandated territory, a goal which was better secured under the trusteeship system of the United Nations. The study has shown that the final objective of the mandates system was decolonisation. This point is well supported in the study by contemporaneous documentary evidence. The interpretation of the relevant provisions of the Covenant of the League of Nations, the Mandates instruments and of the Charter of the United Nations in such a way as to support incorporation of the mandated territory into the mandatory state is thus legally untenable. There is another point which is closely related to the foregoing, namely, the difference between the mandated territories and the nonself-governing territories. The development within the United Nations of principles of international law concerning decolonisation led finally to the eradication of the theoretical difference between the mandated territories, on one hand, and the non-self- governing territories, on the other. With the eradication of the theoretical difference between these two types of dependent territories the question of Namibia ceased to be only a question concerning the placing of a mandated territory under the trusteeship system. It then became also a question of decolonisation. Therefore, in consequence of the foregoing the withdrawal by the United Nations in 1966 of the mandate of South Africa to administer Namibia was valid and in accordance with the principles of international

.'uJO for the establishment of the mandates system. Therefore, all the Member States of the League had genuine interests to ensure that the provisions relating to the well- being and development of the inhabitants would not be violated and that these would be properly implemented. And to that end legal provisions were inserted in the international agreements for the Member States to legally protect such interests or rights. The documents in the archives of the League of Nations are clear on this point. The rights of the inhabitants of the mandated territories were regarded as of vital importance by all the Member States of the League of Nations. The amendment made to the adjudicatory clause in the Mandates makes this point also very clear. The adjudicatory clause was originally concerned only with the 'conduct provisions' and not with the rights of the nationals of the Member States of the League. This clause was amended so as to protect also the interests or rights of the nationals of the Member States. The legal opinion at the time of the formation of the mandates system, as revealed by the archival documents of the League of Nations, considered the Member States of the League to have legal interests in the protection and proper implementation of the provisions of the Covenant of the League and of the Mandates relating to the well-being and development of the inhabitants of the mandated territories. Again, these archival documents are in line with the historical background of the establishment of the mandates system. Thus, the conclusions reached in the study on these points are not only supported by contemporaneous documentary evidence but more significantly they reflect the correct intention of the parties to these international agreements. The distinction, though fine, between the United Nations law of decolonisation as the basis of the legal obligation of the decisions of the United Nations and international customary law should be re-emphasized.

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APPENDICES I COVENANT OF THE LEAGUE OF NATIONS Article 22 1. To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization and that securities for the performance of this trust should be embodied in this Covenant. 2. The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who, by reason of their resources, their experience, or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League. 3. The character Of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances. 4. Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as an independent nation can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these comunities must be a principal consideration in the selection of the Mandatory. 5. Other peoples, especially those of Central Africa, are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military and naval bases and of military training of the natives for other than police purposes and the defence of territory, and will also secure equal opportunities for the trade and commerce of other Members of the League.

4-3 2~- 6. There are territories, such as South West Africa and certain of the South Pacific Islands which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilization, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population. 7. In every case of mandate, the Mandatory shall render to the .Council an annual report in reference to the territory committed to its charge. 8. The degree of authority, control, or administration to be exercised by the Mandatory shall, if not previously agreed upon by the members of the League, be explicitly defined in each case by the Council. 9. A Permanent Commission shall be constituted to receive and examine the annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the mandates. II THE MANDATE FOR SOUTH WEST AFRICA The Council of the League of Nations: Whereas by Article 119 of the Treaty of Peace with Germany signed at Versailles on 28 June 1919, Germany renounced in favour of the Principal Allied and Associated Powers all her rights over her overseas possessions, including therein German South West Africa; and Whereas the Principal Allied and Associated Powers agreed that in accordance with Article 22 Part I (Covenant of the League of Nations) of the said Treaty, a Mandate should be conferred upon His Britannic Majesty to be exercised on his behalf by the Government of the Union of South Africa to administer the territory afore mentioned, and have proposed that the Mandate should be formulated in the following terms; and Whereas His Britannic Majesty, for and on behalf of the Government of the Union of South Africa, has agreed to accept the Mandate in respect of the said territory and has undertaken to exercise it on behalf of the League of Nations in accordance with the following provisions; and Whereas, by the afore mentioned Article 22, paragraph 8, it is provided that the degree of authority, control or administration to be exercised by the Mandatory not having been previously agreed upon by the Members of the League, shall be explicitly defined by the Council of the League of Nations. Confirming the said Mandate, defines its terms as follows:-

Article 1 The territory over which a Mandate is conferred upon His Britannic Majesty for and on behalf of the Government of the Union of South Africa (hereinafter called the Mandatory) comprises the territory which formerly constituted the German Protectorate of South West Africa. Article 2 The Mandatory shall have full power of administration and legislation over the territory subject to the present Mandate as an integral portion of the Union of South Africa, and may apply the laws of the Union of South Africa to the territory, subject to such local modifications as circumstances may require. The Mandatory shall promote to the utmost the material and moral well-being and the social progress of the inhabitants of the territory subject to the present Mandate. Article 3 The Mandatory shall see that the slave trade is prohibited, and that no forced labour is permitted, except for essential public works and services, and then only for adequate remuneration. The Mandatory shall also see that the traffic in arms and ammunition is controlled in accordance with principles analogous to those laid down in the Convention relating to the control of arms traffic, signed on 10 September 1919, or in any convention amending the same. The supply of intoxicating spirits and beverages to the natives shall be prohibited. Article 4 The military training of the natives, otherwise than for purposes of internal police and the local defence of the territory, shall be prohibited. Furthermore, no military or naval bases shall be established or fortifications erected in the territory. Article 5 Subject to the provisions of any local law for the maintenance of public order and public morals, the Mandatory shall ensure in the territory freedom of conscience and the free exercise of all forms of worship, and shall allow all missionaries, nationals of any State Member of the League of Nations, to enter into, travel and reside in the territory for the purpose of prosecuting their calling.

Article 6 The Mandatory shall make to the Council of the League of Nations an annual report to the satisfaction of the Council containing full information with regard to the territory, and indicating the measures taken to carry out the obligations assumed under Articles 2, 3, 4 and 5. Article 7 The consent of the Council of the League of Nations is required for any modification of the terms of the present Mandate. The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations. The present Declaration shall be deposited in the archives of the League of Nations. Certified copies shall be forwarded by the SecretaryGeneral of the League of Nations to all Powers Signatories of the Treaty of Peace with Germany. Made at Geneva the 17th day of December, 1920. III CHARTER OF THE UNITED NATIONS CHAPTER XI: DECLARATION REGARDING NON-SELF-GOVERNING TERRITORIES Article 73 Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end: a) to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses; b) to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement; c) to further international peace and security; d) to promote constructive measures of development, to encourage research, and to cooperate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and e) to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditionsin the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply. CHAPTER XII: INTERNATIONAL TRUSTEESHIP SYSTEM Article 75 The United Nations shall establish under its authority an international trusteeship system for the administration and supervision of such territories as may be placed thereunder by subsequent individual agreements. These territories are hereinafter referred to as trust territories. Article 76 The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article I of the present Charter, shall be: a) to further international peace and security; b) to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement; c) to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world; and d) to ensure equal treatment in social, economic, and commercial matters for all Members of the United Nations and their nationals, and also equal treatment for the latter in the administration of justice, without prejudice to the attainment of the foregoing objectives and subject to the provisions of Article 80.

Article 77 1. The trusteeship system shall apply to such territories in the following categories as may be placed thereunder by means of trustieship agreements: a) territories now held under mandate; b) territories which may be detached from enemy states as a result of the Second World War; and c) territories voluntarily placed under the system by states responsible for their administration. 2. It will be a matter for subsequent agreement as to which territories in the foregoing categories will be brought under the trusteeship system and upon what terms. Article 79 The terms of trusteeship for each territory to be placed under the trusteeship system, including any alteration or amendment, shall be agreed upon by the states directly concerned, including the mandatory power in the case of territories held under mandate by a Member of the United Nations, and shall be approved as provided for in Articles 83 and 85. Article 80 1. Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79 and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties. 2. Paragraph I of this Article shall not be interpreted as giving grounds for delay or postponement of the negotiation and conclusion of agreements for placing mandated and other territories under the trusteeship system as provided for in Article 77. IV RESOLUTIONS OF THE GENERAL ASSEMBLY: GENERAL 1514 (XV) Declaration on the Granting of Independence to Colonial Countries and Peoples The General Assembly Mindful of the determination proclaimed by the peoples of the world in the Charter of the United Nations to reaffirmed faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small and to promote social progress and better standards of life in larger freedom,

4-37 Conscious of the need for the creation of conditions of stability and well-being and peaceful and friendly relations based on respect for the principles of equal rights and self-determination of all peoples, and of universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion, Recognizing the passionate yearning for freedom in all dependent peoples and the decisive role of such peoples in the attainment of their independence, Aware of the increasing conflicts resulting from the denial of or impediments in the way of the freedom of such peoples, which constitute a serious threat to world peace, Considering the important role of the United Nations in assisting the movement for independence in Trust and Non-Self-Governing Territories, Recognizing that the peoples of the world ardently desire the end of colonialism in all its manifestations, Convinced that the continued existence of colonialism prevents the development of international economic cooperation, impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace, Affirming that peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law, Believing that the process of liberation is irresistible and that, in order to avoid serious crises, an end must be put to colonialism and all practices of segregation and discrimination associated therewith, Welcoming the emergence in recent years of a large number of dependent territories into freedom and independence, and recognizing the increasing powerful trends towards freedom in such territories which have not yet attained independence, Convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory, Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations; And to this end Declares that: 1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation.

43* 2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 3. IDadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence. 4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected. 5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom. 6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. 7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, noninterference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity. 14 December 1960 2625 (XXV) Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations. The General Assembly, 1 Solemnly proclaims the following principles: The Principle of equal rights and self-determination of peoples By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.

Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order: a) To promote friendly relations and cooperation among States; and b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned; and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter. Every State has the duty to promote through joint and separate action universal respect for an observance of human rights and fundamental freedoms in accordance with the Charter. The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people. Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self- determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter. The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-SelfGoverning Territory have exercised their right to self-determination in accordance with the Charter, and particularly its purposes and principles. Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self- determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country. V RESOLUTIONS OF THE UNITED NATIONS ON NAMIBIA (i) GENERAL ASSEMBLY, 337 (IV) Question of South West Africa: reiteration of previous resolutions and submission of reports ...... 1. Expresses regret that the Government of the Union of South Africa has withdrawn its previous undertaking, referred to in resolution 141 (II) of 1 November 1947, to submit reports on its administration of the Territory of South West Africa for the information of the United Nations; ...... 3. Invites the Government of the Union of South Africa to resume the submission of such reports to the General Assembly and to comply with the decisions of the General Assembly contained in the resolutions ... 338 (IV) Question of South West Africa: request for an advisory opinion of the International Court of Justice ...... 1. Decides to submit the following questions to the International Court of Justice with a request for an advisory opinion which shall be transmitted to the General Assembly before its fifth regular session, if possible: "What is the international status of the Territory of South West Africa and what are the international obligations of the Union of South Africa arising therefrom, in particular: "a) Does the Union of South Africa continue to have international obligations under the Mandate for South West Africa and, if so, what are those obligations? "b) Are the provisions of Chapter XII of the Charter applicable and, if so, in what manner, to the Territory of South West Africa? "c) Has the Union of South Africa the competence to modify the international status of the Territory of South West Africa or, in the event of a negative reply, where does competence rest to determine and modify the international status of the Territory?" 6 December 1949

(4A1/ 449 (V) Question of South West Africa A...... 1. Accepts the advisory opinion of the International Court of Justice with respect to South West Africa: 2. Urges the Government of the Union of South Africa to take the necessary steps to give effect to the opinion of the International Court of Justice, including the transmission of reports on the administration of the Territory of South West Africa and of petitions from communities or sections of the population of the Territory; 3. Establishes a Committee of five consisting of the representatives of Denmark, Syria, Thailand, the United States of America and Uruguay, to confer with the Union of South Africa concerning the procedural measures necessary for implementing the advisory opinion of the International Court of Justice and to submit a report thereon to the next regular session of the General Assembly; 4. Authorizes the Committee, as an interim measure, pending the completion of its task referred to in paragraph 3, and as far as possible in accordance with the procedure of the former Mandates System, to examine the report on the administration of the Territory of South West Africa covering the period since the last report, as well as petitions and any other matters relating to the Territory that may be transmitted to the Secretary-General, and to submit a report thereon to the next regular session of the 'General Assembly. 13 December 1950 570 (VI) Question of South West Africa 0 A. 3. Declares that, since the Government of the Union of South Africa cannot avoid its international obligation by unilateral action, the United Nations cannot recognize as valid any measure taken unilaterally by the Union of South Africa which would modify the international status of the Territory of South West Africa; 4. Appeals solemnly to the Government of South Africa to reconsider its position, and urges it to resume negotiations with the Ad Hoc Committee for the purpose of concluding an agreement providing for the full implementation of the advisory opinion of the International Court of Justice; and urges it further to submit reports on the administration of the Territory of South West Africa and to transmit to the United Nations petitions from communities or sections of the population of the Territory; 19 January 1952

749 (VIII) Question of South West Africa A 6. Affirms that, in order to implement the advisory opinion of the International Court of Justice with regard to South West Africa, a) The supervision of the administration of South West Africa, though it should not exceed that which applied under the Mandates System, should be exercised by the United Nations; judicial supervision by the International Court of Justice, which the Union Government is prepared to accept, is not in accordance with the advisory opinion expressed by that Court and accepted by the General Assembly; b) The Union Government should assume its obligations to the United Nations and not, as proposed by the Union Government, to the three Powers (France, the United Kingdom and the United States of America) as principals; 9. Reaffirms further that the Union of South Africa continues to have the international obligations stated in Article 22 of the Covenant of the League of Nations and in the Mandate for South West Africa as well as the obligation to transmit petitions from the inhabitants of that Territory, the supervisory functions to be exercised by the United Nations to which the annual reports and the petitions are to be submitted; 10. Considers that without United Nations supervision the inhabitants of the Territory are deprived of the international supervision envisaged by the Covenant of the League of Nations; ...... *0...... *e ...... 12. Establishes, until such time as an agreement is reached between the United Nations and the Union of South Africa, a Committee on South West Africa, ..., and request this Committee to: a) Examine, within the scope of the Questionnaire adopted by the Permanent Mandates Commission of the League of Nations in 1926, such information and documentation as may be available in respect of the Territory of South West Africa; b) Examine, as far as possible in accordance with the procedure of the former Mandates System, reports and petitions which may be submitted to the Committee or to the SecretaryGeneral; c) Transmit to the General Assembly a report concerning conditions in the Territory taking into account, as far as possible, the scope of the reports of the Permanent Mandates Commission of the League of Nations; d) Prepare, for the consideration of the General Assembly, a procedure for the examination of reports and petitions which should conform as far as possible to the procedure followed in this respect by the Assembly, the Council and the Permanent Mandates Commission of the League of Nations; 28 November 1953 844 (IX) Procedure for the examination of reports and petitions relating to the Territory of South West Africa Desiring to apply, as far as possible, and pending the conclusion of an agreement between the United Nations and the Union of South Afxica, the procedure followed in that respect by the Council of the League ofNations, Adopts the following special rules: Special rule F: Decisions of the General Assembly on questions relating to reports and petitions concerning the Territory of South West Africa shall be regarded as important questions within the meaning of Article 18, paragraph 2, of the Charter of the United Nations. 11 October 1954 904 (IX) Voting procedure on questions relating to reports and petitions concerning the Territory of South West Africa: request for an advisory opinion from the International Court of Justice Having adopted this rule in a desire "to apply, as far as possible, and pending the conclusion of an agreement between the United Nations and the Union of South Africa, the procedure followed in that respect by the Council of the League of Nations". Considering that some elucidation of the advisory opinion is desirable, Requests the International Court of Justice to give an advisory opinion on the following questions:

"a) Is the following rule on the voting procedure to be followed by the General Assembly a correct interpretation of the advisory opinion of the International Court of Justice of 11 July 1950; 'Decisions of the General Assembly on questions relating to reports and petitions concerning the Territory of South West Africa shall be regarded as important questions within the meaning of Article 18, paragraph 2, of the Charter of the United Nations' ", "b) If this interpretation of the advisory opinion of the Court is not correct, what voting procedure should be followed by the General Assembly in taking decisions on questions relating to reports and petitions concerning the Territory of South West Africa?" 23 November 1954 942 (X) Question of the admissibility of oral hearings by the Committee on South West Africa: request for an advisory opinion from the International Court of Justice ...... Having been requested by the Committee on South West Africa to decide whether or not the oral hearing of petitioners on matters relating to the Territory of South West Africa is admissible before that Committee, .. . .0...... Requests the International Court of Justice to give an advisory opinion on the following question: "Is it consistent with the advisory opinion of the International Court of Justice of 11 July 1950 for the Committee on South West Africa, ..., to grant oral hearings to petitioners on matters relating to the Territory of South West Africa?" 3 December 1955 1047 (XI) Admissibility of hearings of petitioners by the Committee on South West Africa: Advisory Opinion of the International Court of Justice *...... o00 o ...o ..oo... Having noted that, in its advisory opinion of 1 June 1956, the Court was of the opinion that the grant of oral hearings to petitioners by the Committee on South West Africa would be consistent with the advisory opinion of the Court of 11 July 1950,

'H ~ 1. Accepts and endorses the advisory opinion of 1 June 1956 of the International Court of Justice on the question of the admissibility of hearings by the Committee on South West Africa; 23 January 1956 1054 (Xl) Report of the Committee on South West Africa ...... 3. Notes with concern that, for the third year in succession, the Committee has been unable to escape the conclusion that conditions in the Territory are for the most part, and particularly for the "Native" majority, still far from meeting in a reasonable way the standards implicit in the purposes of the Mandates System; 26 February 1957 1361 (XIV) Legal action to ensure the fulfilment of the obligations assumed by the Union of South Africa in respect of the Territory of South West Africa ...... Draws the attention of Member States to the conclusions of the special report of the Committee on South West Africa covering the legal action open to Member States to refer any dispute with the Union of South Africa concerning the interpretation or application of the Mandate for South West Africa to the International Court of Justice for adjudication in accordance with article 7 of the Mandate read in conjunction with Article 37 of the Statute of the Court. 17 November 1959 1565 (XV) Legal action to ensure the fulfilment of the obligations assumed by the Union of South Africa in respect of the Territory of South West Africa 2. Concludes that thq dispute which has arisen between Ethiopia, Liberia and other Member States on the one hand, and the Union of South Africa on the other, relating to the interpretation and application of the Mandate has not been and cannot be settled by negotiation. 18 December 1960

1702 (XVI) Question of South West Africa 1. Solemnly proclaims the inalienable right of the people of South West Africa to independence and national sovereignty; 2. Decides to establish a United Nations Special Committee for South West Africa, ... whose task will be to achieve, in consultation with the Mandatory Power, the following objectives: b) The evacuation from the Territory of all military forces of the Republic of South Africa; c) The release of all political prisoners without distinction as to party or race; d) The repeal of all laws or regulations confining the indigenous inhabitants in reserves and denying them all freedom of movement, expression and association, and of all other laws and regulations which establish and maintain the intolerable system of apartheid; e) Preparations for general elections to the Legislative Assembly, based on universal adult suffrage, to be held as soon as possible under the supervision and control of the United Nations; h) The return to the Territory of indigenous inhabitants without risk of imprisonment, detention or punishment of any kind because of their political activities in or outside the Territory; 19 December 1961 1805 (XVII) Question of South West Africa ...... o ..... 5. Requests the Secretary-General to appoint a United Nations Technical Assistance Resident Representative for South West Africa ... 6. Requests the Secretary-General to take all necessary steps to establish an effective United Nations presence in South West Africa; 14 December 1962

441 1899 (XVIII) Question of South West Africa Considering the decisions relating to decolonisation adopted at the Summit Conference of Independent African States, held in May 1963 at Addis Ababa, particularly those concerning South West Africa, 4. Considers that any attempt to annex a part or the whole of the Territory of South West Africa constitutes an act of aggression; 13 November 1963 2074 (XX) Question of South West Africa 4. Condemns the policy of apartheid and racial discrimination practised by the Government of South Africa in South West Africa, which constitute a crime against humanity; 5. Considers that any attempt to partition the Territory or to take any unilateral action, directly or indirectly, preparatory thereto constitutes a violation of the Mandate and of resolution 1514 (XV); 12. Appeals to all States to give the indigenous people of South West Africa all necessary moral and material support in their legitimate struggle for freedom and independence; 17 December 1965 2145 (XXI) Question of South West Africa Reaffirming the inalienable right of the people of South West Africa to freedom and independence in accordance with the Charter of the United Nations, General Assembly resolution 1514 (XV) of 14 December 1960 and earlier Assembly resolutions concerning the Mandated Territory of South West Africa Convinced that the administration of the Mandated Territory by South Africa has been conducted in a manner contrary to the Mandate, the Charter of the United Nations and the Universal Declaration of Human Rights, ... 0.000...... Considering that all efforts of the United Nations to induce the Government of South Africa to fulfil its obligations in respect of the administration of the Mandated Territory and to ensure the well-being and security of the indigenous inhabitants have been of no avail. Affirming its right to take appropriate action in the matter, including the right to revert to itself the administration of the Mandated Territory, 1. Reaffirms that the provisions of General Assembly resolution 1514 (XV) are fully applicable to the people of the Mandated Territory of South West Africa and that therefore, the people of South West Africa have the inalienable right to self-determination, freedom and independence in accordance with the Charter of the United Nations; 2. Reaffirms further that South West Africa is a territory having international status and that it shall maintain this status until it achieves independence; 3. Declares that South Africa has failed to fulfil its obligations in respect of the administration of the Mandated Territory and to ensure the moral and material well-being and security of the indigenous inhabitants of South West Africa and has, in fact, disavowed the Mandate; 4. Decides that the Mandate conferred upon His Britannic Majesty to be exercised on his behalf by the Government of the Union of South Africa is therefore terminated, that South Africa has no other right to administer the Territory and that henceforth South West Africa comes under the direct responsibility of the United Nations; 5. Resolves that in these circumstances the United Nations must discharge those responsibilities with respect to South West Africa; 27 October 1966 2248 (S-V) Question of South West Africa II 1. Decides to establish a United Nations Council for South West Africa ... and to entrust to it the following powers and functions, to be discharged in the Territory; a) To administer South West Africa until independence, with the maximum possible participation of the people of the Territory; b) To promulgate such laws, decrees and administrative regulations as are necessary for the administration of the Territory until a legislative assembly is established following elections conducted on the basis of universal adult suffrage; c) To take as an immediate task all the necessary measures, in consultation with the people of the Territory, for the establishment of a constituent assembly to draw up a constitution on the basis of which elections will be held for the estab- lishment of a legislative assembly and a responsible government; d) To take all the necessary measures for the maintenance of law and order in the Territory; e) To transfer all powers to the people of the Territory upon the declaration of independence; 19 May 1967 2372 (XXII) Question of South West Africa ...... 1. Proclaims that, in accordance with the desires of its people, South West Africa shall henceforth be known as "Namibia"; ...... 4. Decides that, taking into account the provisions of General Assembly resolution 2248 (S-V), the United Nations Council for Namibia shall perform, as a matter of priority, the following functions: b) The Council shall organize a training programme for Namibians, in consultation with those Governments which indicate their interest and concern, so that cadre of civil servants and of technical and processional personnel may be developed who would be in a position ot undertake the public administration and the social, political and economic development of the State; c) The Councilshall continue with a sense of urgency its consultations on the question of issuing to Namibians travel documents enabling them to travel abroad; 12 June 1968 2678.(XXV) Question of Namibia *...... 4. Further condemns the Government of South Africa for the extension of the internationally condemned policies of apartheid to the Territory, and for its policy aimed at destroying the unity of the people and the territorial integrity of Namibia through the creation of the so-called separate "homelands"; 9 December 1970 y1s40 2871 (XXVI) Question of Namibia ...... 6. Calls upon all States: a) To respect strictly the resolutions of the General Assembly and the Security Council concerning Namibia, and the advisory opinion of the International Court of Justice of 21 June 1971; b) To refrain from all direct or indirect relations, economic or otherwise, with South Africa, where those relations concern Namibia; c) Not to recognize as legally valid any rights or interests in Namibian property or resources purportedly acquired from the South African Government after 27 October 1966; ...... 8. Calls once again upon South Africa to treat Namibians captured during their struggle for freedom as prisoners of war in accordance with the Geneva Convention relative to the Treatment of Prisoners of War, of 12 August 1949, ... and in this regard, invites the International Committee of the Red Cross to exercise its good offices to secure South Africa's compliance with those Conventions; o~oo ..o ...... 13. Requests the United Nations Council for Namibia, in accordance with the provisions of the relevant resolutions of the General Assembly, to continue to discharge its functions and responsibilities, and in particular: a) To represent Namibia whenever it is required; 20 December 1971 3295 (XXIX) Question of Namibia ...... 7. Requests all Member States to take all appropriate measures to ensure the full application of, and compliance with, the provisions of the Decree on the Natural Resources of Namibia enacted by the United Nations Council for Namibia on 27 September 1974 and such other measures as may be necessary to assist in the protection of the national resources of Namibia; 8. Reaffirms the right of the Namibian people to permanent sovereignty over their natural resources and condemns the policies of those States which tontinue to support foreign economic and other interests engaged in exploiting the natural and human resources of Namibia, in some cases to the point of foreseeing the exhaustion of such natural resources; 13 December 1974

31/146 Situation in Namibia resulting from the illegal occupation of the Territory by South Africa ...... 3. Supports the armed struggle of the Namibian people, led by the South West Africa People's Organisation, to achieve self-determination, freedom and national independence in a united Namibia; t ...... 14. Strongly condemns the activities of all foreign corporations operating in Namibia under the illegal administration of South Africa which are exploiting the human and natural resources of the Territory, and demands that such exploitation cease forthwith; 21. Declares that, in order that the people of Namibia shall be enabled freely to determine their own future, it is imperative that free elections under the supervision and control of the United Nations be held urgently in the whole of Namibia as one political entity; 24. Declares that the continued illegal occupation of Namibia by South Africa constitutes an act of aggression against the Namibian people and against the United Nations as the legal authority to administer the Territory until independence; 20 December 1976 31/149 Action by intergovernmental and nongovernmental organisations with respect to Namibia ...... 3. Requests all specialized agencies and other organisations and conferences within the United Nations system to consider granting full membership to the United Nations Council for Namibia so that it may participate in that capacity as the Administering Authority for Namibia in the work of those agencies, organisations and conferences; 4. Requests the specialized agencies and other organisations within the United Nations system to consider favourably granting a waiver of the assessment of Namibia during the period in which Namibia is represented by the United Nations Council for Namibia; 20 December 1976

(ii) SECURITY COUNCIL: Resolution 264 (1969) of 20 March 1969 ...... 1. Recognizes that the United Nations General Assembly terminated the Mandate of South Africa over Namibia and assumed direct responsibility for the Territory until its independence; 2. Considers that the continued presence of South Africa in Namibia is illegal and contrary to the principles of the Charter and the previous decisions of the United Nations and is detrimental to the interests of the population of the Territory and those of the international comnunity; ...... 4. Declares that the actions of the Government of South Africa designed to destroy the national unity and territorial integrity of Namibia through the establishment of Bantustans are contrary to the provisions of the Charter of the United Nations; Resolution 269 (1969) of 12 August 1969 ...... 3. Decides that the continued occupation of the Territory of Namibia by the South African authorities constitutes an aggressive encroachment on the authority of the United Nations, a violation of the territorial integrity and a denial of the political sovereignty of the people of Namibia; 4. Recognizes the legitimacy of the struggle of the people of Namibia against the illegal presence of the South African authorities in the Territory; ...... 7. Calls upon all States to refrain from all dealings with the Government of South Africa purporting to act on behalf of the Territory of Namibia; Resolution 276 (1970) of 30 January 1970 ...... o ...... 2. Declares that the continued presence of the South African authority in Namibia is illegal and that consequently all acts taken by the Government of South Africa on behalf of or concerning Namibia after the termination of othe Mandate are illegal and invalid;

14 <') 4. Considers that the continued occupation of Namibia by the Government of South Africa in defiance of the relevant United Nations resolutions and of the Charter of the United Nations has grave consequences for the rights and interests of the people of Namibia; Resolution 283 (1970) of 29 July 1970 ...... Bearing in mind the special responsibility of the United Nations with regard to the Territory of Namibia and its people. 1. Reouests all States to refrain from any relations - diplomatic, consular or otherwise - with South Africa implying recognition of the authority of the Government of South Africa over the Territory of Namibia; 4. Calls upon all States to ensure that companies and other commercial and industrial enterprises owned by, or under direct control of, the State cease all dealings with respect to commercial or industrial enterprises or concessions in Namibia; 7. Calls upon all States to discourage their nationals or companies of their nationality not under direct governmental control from investing or obtaining concessions in Namibia, and to this end to withhold protection of such investment against claims of a future lawful government of Namibia; 11. Calls upon all States to discourage the promotion of tourism and emigration to Namibia; Resolution 284 (1970) of 29 July 1970 ...... 1. Decides to submit, in accordance with Article 96, paragraph 1, of the Charter of the United Nations, the following question to the International Court of Justice, with the request for an advisory opinion which shall be transmitted to the Security Council at an early date: 'Vhat are the legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 276 (1970)7";

Resolution 301 (1971) of 20 October 1971 4. Declares that South Africa's continued illegal presence in Namibia constitutes an internationally wrongful act and a breach of international obligations and that South Africa remains accountable to the international community for any violations of its international obligations or the rights of the people of the Territory of Namibia; 6. Agrees with the Court's opinion, as expressed in paragraph 133 of its advisory opinion: "(1) that, the continued presence of South Africa in Namibia being illegal, South Africa is under obligation to withdraw its administration from Namibia imnediately and thus put an end to its occupation of the Territory; "(2) that States Members of the United Nations are under obligation to recognize the illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts and in particular any dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, such presence and administration; "(3) that it is incumbent upon States which are not Members of the United Nations to give assistance, within the scope of subparagraph (2) above, in the action which has been taken by the United Nations with regard to Namibia"; 12. Declares that franchises, rights, titles or contracts relating to Namibia granted to individuals or companies by South Africa after the adoption of General Assembly resolution 2145 (XXI) are not subject to protection or espousal by their States against claims of a future lawful Government of Namibia; Resolution 309 (1972) of 4 February 1972 1. Invites the Secretary-General, in consultation and close cooperation with a group of the Security Council, ..., to initiate as soon as possible contacts with all parties concerned, with a view to establishing the necessary conditions so as to enable the people of Namibia, freely and with strict regard to the principle of human equality, to exercise their right to self-determination and independence, in accordance with the Charter of the United Nations; ,a,

Resolution 323 (1972) of 6 December 1972 4. Solemnly reaffirms the inalienable and imprescriptible right of the people of Namibia to self-determination, national independence and the preservation of their territorial integrity, on which any solution for Namibia must be based, and rejects any interpretation, measure or policy to the contrary; Resolution 366 (1974) of 17 December 1974 ...... 3. Demands that South Africa make a solemn declaration that it will comply with the resolutions and decisions of the United Nations and the advisory opinion of the International Court of Justice of 21 June 1971 in regard to Namibia and that it recognizes the territorial integrity and unity of Namibia as a nation, such a declaration to be addressed to the Security Council; Resolution 385 (1976) of 30 January 1976 ...... 7. Declares that, in order that the people of Namibia may be enabled to determine their own future, it is imperative that free elections under the supervision and control of the United Nations be held for the whole of Namibia as one political entity; 9. Demands that South Africa urgently make a solemn declaration accepting the foregoing provisions for the holding of free elections in Namibia under United Nations supervision and control, undertaking to comply with the resolutions of the United Nations and with the advisory opinion of the International Court of Justice of 21 June 1971 in regard to Namibia, and recognizing the territorial integrity and unity of Namibia as a nation; Resolution 432 (1978) of 27 July 1978 ...... 1. Declares that the territorial integrity and unity of Namibia must be assured through the reintegration of Walvis Bay within its territory; 2. Decides to lend its full support to the initiation of steps necessary to ensure early reintegration of Walvis Bay into Namibia;

Resolution 435 (1978) of 29 September 1978 2. Reiterates that its objective is the withdrawal of South Africa's illegal administration of Namibia and the transfer of power to the people of Namibia with the assistance of the United Nations in accordance with resolution 385 (1976); 3. Decides to establish under its authority a United Nations Transition Assistance Group (UNTAG) in accordance with the above-mentioned report of the Secretary-General for a period of up to 12 months in order to assist his Special Representative to carry out the mandate conferred upon him by paragraph i of SecuritymCouncil resolution 431 (1978), namely, to ensure the early independence of Namibia through free and fair elections under the supervisiott and control of the United Nations; Resolution 439 (1978) of 13 November 1978 ...... 1. Condemns the decision of the South African Government to proceed unilaterally with the holding of elections in the Territory from 4 to 8 December 1978 in contravention of Security Council resolutions 385 (1976) and 435 (1978); 3. Declares those elections and their results null and void and that no recognition will be accorded either by the United Nations or any Member States to any representatives or organ established by that process; 5. Demands once again that South Africa co-operate with the Security Council and the Secretary-General in the implementation of its resolutions 385 (1976), 431 (1978) and 435 (1978); 6. Warns South Africa that its failure to do so would compel the Security Council to meet forthwith to initiate appropriate actions under the Charter of the United Nations, including Chapter VII thereof, so as to ensure South Africa's compliance with the afore-mentioned resolutions; VI PROPOSAL FOR A SETTLEMENT OF THE NAMIBIAN SITUATION Letter dated 10 April 1978 from the Representative of Canada, France, Germany, Federal Republic of, the United Kingdom of Great Britain and Northern Ireland and United States of America addressed to the President of the Security Council. (The Contact Group).

1. Bearing in mind their responsibilities as members of the Security Council of the United Nations, the Governments of Canada, France, the Federal Republic of Germany, the United Kingdom and the United States have consulted with the various parties involved with the Namibian situation with a view to encouraging agreement on the transfer of authority in Namibia to an independent government in accordance with resolution 385 (1976), adopted unanimously by the Security Council on 30 January 1976...... 5. In accordance with Security Council resolution 385 (1976), free elections will be held, for the whole of Namibia as one political entity, to enable the people of Namibia to freely and fairly determine their own future. The elections will be under the supervision and control of the United Nations in that, as a condition to the conduct of the electoral process, the elections themselves and the certification of their results, the United Nations Special Representative will have to satisfy himself at each stage as to the fairness and appropriateness of all measures affecting the political process at all levels of administration before such measures take effect ... 7. The following requirements will be fulfilled to the satisfaction of the United Nations Special Representative in order to meet the objective of free and fair elections; A. Prior to the beginning of the electoral campaign, the Administrator General will repeal all remaining discriminatory or restrictive laws, regulations, or administrative measures which might abridge or inhibit that objective. B. The Administrator General shall make arrangements for the release, prior to the beginning of the electoral campaign, of all Namibian political prisoners or political detainees held by the South African authorities so that they can participate fully and freely in that process, without risk of arrest, detention, intimidation or imprisonment ... C. All Namibian refugees or Namibians detained or otherwise outside the territory of Namibia will be permitted to return peacefully and participate fully and freely in the electoral process without risk of arrest, detention, intimidation or imprisonment 8. A comprehensive cessation of all hostile acts shall be observed by all parties in order to ensure that the electoral process will be free from interference and intimidation ...

THE GENERAL ASSEMBLY VOTES ON THE NAMIBIAN OUESTION Res. Nos. Year Afghanistan Albania Algeria Angola Argentina Australia Austria Bahamas Bahrain Bangladesh Barbados Belgium Benin Bhutan Bolivia Botswana Brazil Bulgaria Burma Byelorussian S.S.R. Canada Cape Verde Central Africa Empire Chad Chile China* Colombia Comoros Congo Costa Rica Cuba Cyprus Czechoslovakia 65 141 227 337 338 449A 449B 570A 570B MI (II) (III) (IV) (IV) MV MV (VI) (VI) 1946 1947 1948 1949 1949 1950 1950 1952 1952 YYYYYYYYY YNNNNANAA YYYAAAAYY AYYYYYYYY YY YYYYY YYYYNNYNY * Restores - People's Republic of China, Res. 2758 (XXVI) of 25 October 1971 THE GENERAL ASSEMBLY VOTES ON THE NAMIBIAN QUESTION t5 141 227 337 338 449A 449B 570A 570B 19 (4) (194) (IV) (IV) (vI) (vi) 1946 1947 1948 1949 1949 1950 1950 1952 1952 Democratic Kampuchea Democratic Yemen Denmark Dominican Republic Ecuador Egypt* El Salvador Equatorial Guinea Ethiopia Fiji Finland France Gabon Gambia Germany D.R. Germany F.R. Ghana Greece Grenada Guatemala Guinea Guinea-Bissau Guyana Haiti Honduras Hungary Iceland India Indonesia Iran Iraq Ireland Israel Italy Ivory Coast Jamaica Japan Jordan Kenya Kuwait Lao P.D.R. Lebanon Lesotho Liberia YYYYYYAYA Y Y A 0 0 Y N Y Y AYNNNYAYA ANNNNY NYA YYYYYYYAY Y Y 0 AAYAYA YYNYYYYYY Y Y Y Y Y Y y Y * Known as United Arab Republic from 21 Res. Nos. Year L14r February 19.58 to 2 September 1961

65 141 227 337 338 449A 449B 570A 570B (1) (1) (14) (IV) (IV) 1 95 (V) (V) 1946 1947 1948 1949 1949 1950 1950 .1952 1952, Libyan Arab R. Luxembourg Madagascar Malawi Malaysia Maldives Mali Malta Mauritania Mauritius Mexico Mongolia Morocco Mozambique Nepal Netherlands New Zealand Nicaragua Niger Nigeria Norway Oman Pakistan Panama Papua New Guinea Paraguay Peru Philippines Poland Portugal Qatar Romania Samoa Sao Tome & Principe Sauda Arabia Seychelles Sierra Leone Singapore Somalia South Africa Spain Sri Lanka Surinam Swaziland Sweden YYNNN AA YY YYYYYYY YYNAYAYA YY YA Y YY YY YYYYYY Y Y Y Y y Y Y Y y A N N N N N N 0 0 Y Y Y N N y N Y A Res. Nos. Year

65 141 227 337 338 449A 449B 570A 570B (1) (nf) (III) (IV) (IV) Mv (V) (vI) (vI) 1946 1947 1948 1949 1949 1950 1950 1952 1952 Syria* Thai land Togo Trinidad & Tobago Tunisia Turkey Uganda Ukrainian S.S. Rep. U.S.S.R. United Arab Emirates U.K. U. Rep. of Cameroon U. Rep. of Tanzania U.S.A. Upper Volta Uruguay Venezuela Yemen Yugoslavia Zaire Zambia YY Y A 0 N Y N Y A N A AN NAAYNAA YYYNNYYYA YY YY 0 YY * Known as United Arab Republic from 21 February 1958 to 2 September 1961 Year Res. Nos.

749A 749B 844 904 1143 1565 1568 1593 1596 1899 (VIII) (VIII) (IX) (IX) (XII) (XV) (xv) (XV) (xv) (XVIII) Year 1953 1953 1954 1954 1957 1960 1960 1961 1961 1963 0 Y Y N Afghanistan Albania Algeria Angola Argentina Australia Austria Bahamas Bahrain Bangladesh Brbados AIgium Benin Bhu tan Bolivia Botswana Brazil Bulgaria Burma Burundi Byelorussian S.S.R. Canada Cape Verde Central Africa Empire Chad Chile China '- ,lombia %omoros Congo Costa Rica Cuba Cyprus Czechoslovakia Democratic Kampuchea Yemen Denmark Dominican Republic Ecuador Egypt El Salvador Equatorial Guinea Ethiopia Fiji AAYAA YY AY Y 0 Y Y YYY N YAN ANNYYYYY AYYYYY YYYYYYYA YAAYYYYY Res. Nos.

749A 749B 844 904 1143 1565 1568 1593 1596 1899 (VIII) (VIII) (IX) (IX) (XII) (XV) (xv) (xv) (Xv) (XVIII) Year 1953 1953 Finland France Gabon Gambia German D.R. Germany F.R. Ghana Greece Grenada Guatemala Guinea Guineaissau Guyana Haiti Honduras Hungary Iceland India Indonesia Iran Iraq Ireland Israel Italy Ivory Coast Jamaica Japan Jordan Kenya I".wait "..Ao P.D.R. Lebanon Lesotho tiberia Libyan Arab R. Luxembourg Madagascar Malawi Malaysia Maldives Mali Malta Mauritania Mauritius Mexico Mongolia Morocco Mozambique Nepal 1954 1954 1957 Y NAY Y YAA 1960 1960 1961 1961 1963 0 Y A 0 Y YYA Y ANY Y Y YYY Y AYYYYYY A 0 Y Y YAY YYYYY Y Y 0 Y Y Y YYYYY AYYYYY YYYYY Xes. Nos.

Res. Nos. Netherlands New ZeaLand Nicaragua Niger Nigeria Norway Oman Pakistan Panama Papua New Guinea Paraguay Peru "ilippines roland Portugal Qatar Romania Rwanda Samoa Sao Tome & Princioe Saudi Arabia Senegal Seychelles Sierra Leone Singapore Somalia South Africa Spain Sri Lanka Sudan , .rinam Swaziland Sweden Syria Thailand Togo Trinidad & Tobago Tunisia Turkey Uganda Ukrainian S.S. Rep. U.S.S.R. United Arab Emirates U.K. U. Rep. of Cameroon U. Rep. of Tanzania U.S.A. AYYY AY YY 0 A Y Y Y Y AYYY NYYYYY Y YYAY Y NN YY NAYAAAAN YYYYY Y Y y Y Y AYYN 749A 749B 844 904 1143 1565 1568 1593 1596 1899 (vIII) (VIII) (Ix) (Ix) (XII) (xv) (xv) (XV) (XV) (XVIII) 1953 1953 1954 1954 1957 1960 1960 1960 1961 1963 Year LpWI if 749A 749B 844 904 1143 1565 1568 1593 1596 1899 (VIII) (VIII) (IX) (IX) (XII) (XV) (XV) (XV) (XV) (XVIII) 1953 1954 1954*1957 1960 1960 1961 1961 1963 Upper Volta Uruguay Venezuela Yemen Yugoslavia Zaire Zambia YY YYYY YYYY YYYY YYYY Y 0 Y Y Res. Nos. Year 1953

1979 2145 2248 2324 2325 2372 2403 2498 2517 (XVIII) (XXI) (s-v) (XXII) (XXII) (XXII) (XXIII) (XXIV) (XXIV) 1963 1966 1967 1967 1967 1968 1968 1969 1969 Afghanistan Albania Algeria Angola Argentina Australia Austria Bahamas Bahrain Bangladesh Barbados Belgium Benin Bhutan Bolivia Botswana Brazil Bulgaria Burma Burundi 4 Byelorussian S.S. Rep. Canada Cape Verde Central Africa Empire Chad Chile China Colombia Comoros Congo Costa Rica Cuba Cyprus Czechoslovakia Democratic Kampuchea Democratic Yemen Denmark Dominican Rep. Ecuador Egypt El Salvador Equatorial Guinea Ethiopia Fiji Finland YY A YY YA YY YY YAYYY YYYYYY Y YAYA Y YYYYYY YAYAAA Res. Nos. Year (4 ~c, YY YY YA

Res.Nos. 1979 2145 2248 2324 2325 2372 2403 2498 2517 (XVIII) (XXI) (S-V) (XXII) (XXII) (XXII) (XXIII) (XXIV) (XXIV) Year 1963 1966 1967 1967 1967 1968 1968 1969 199 France A A AY A A A A A Gabon 0 YYY YYY 0 Gambia Y 0 0 0 0 0 0 0 German D.R. Germany, F.R. Ghana Y Y YY Y Y Y Y Y Greece Y Y YY Y Y Y Y Y Grenada Guatemala Y Y Y Y Y Y Y 0 Y Guinea Y Y Y Y Y Y Y Y Y GuineaBissau Guyana Y YY Y Y Y Y Y Haiti 0 Y Y Y YYYYY Honduras 0 Y Y Y Y Y Y 0 Y Hungary Y Y A Y Y Y Y Y Y Iceland Y Y A Y A A A 0 A India Y Y Y Y Y Y Y Y Y Indonesia Y Y Y Y Y Y Y Y Y Iran Y YYY YYY 0Y Iraq 0 YYYYYYYY Ireland Y Y A Y Y Y Y Y Y Israel Y Y YY Y Y Y Y Y Italy Y Y A Y A AAYA IvoryCoastY Y Y Y Y Y Y A A Jamaica Y Y Y Y Y Y Y Y Y Japan Y Y YY Y Y Y Y Y Jordan Y Y YY Y Y Y Y Y Kenya Y Y YY Y Y Y Y Y Kuwait Y Y Y 0 0 Y Y Y Lao P.D.R. Y Y YYYYYYY Lebanon Y Y Y Y Y Y Y Y Y Lesotho 0 0 0 0 0 0 0 Liberia Y Y Y Y Y YYY Libyan Arab Rep. Y YYY YY Y YY LuxembourgY Y A Y A A A 0 A MadagascarY Y Y Y Y Y Y Y Y Malawi A A A A A A A A Malaysia Y Y Y Y Y Y Y Y Y Maldives Y 0 Y Y Y Y Y Y Mali Y Y YYYYYYY Malta Y A 0 0 0 0 0 Mauritania Y Y Y Y Y Y Y Y Y Mauritius Y Y 0 Y Mexico Y Y Y Y Y Y Y Y Y Mongolia Y Y A Y Y Y Y Y Y Morocco Y Y Y Y Y Y Y Y Y Mozambique Nepal YYY Y0 Y YY Netherlands Y Y A Y A A A Y A NewZealandY Y A Y A A A Y A

1979 2145 2248 2324 2325 2372 2403 2498 2517 (XVIII) (XXI) (S-V) (XXII) (XXII) (XXII) (XXIII) (XXIV) (XXIV) 1966 1967 1967 1967 1968 1968 1969 1969 Nicaragua Niger Nigeria Norway Oman Pakistan Panama Papua New Guinea Paraguay Peru Philippines Poland Portugal Qatar Romania Rwanda Samoa Sao Tome & Principe Saudi Arabia Senegal Seychelles Sierra Leone Singapore Somalia South Africa Spain Sri Lanka Sudan - Surinam Swaziland Sweden Syria Thai land Togo Trinidad & Tobago Tunisia Turkey Uganda Ukrainian S.S.R. U.S.S.R. United Arab Emirates U.K. U. Rep. of Came roon U. Rep. of Tanzania AAY Y Y 0 AAA A A YYYYY Res. Nos. Year 1963 Y 0 Y

Res.Nos. 1979 2145 2248 2324 2325 2372 2403 2498 2517 (XVIII) (XXI) (S-V) (XXII) (XXII) (XXII) (XXIII) (XXIV) (XXIV) Year 1963 1966 1967 1967 1967 1968 19b8 1969 1969 U.S.A. Y Y A Y A A A Y A Upper Volta Y Y Y Y Y Y Y Y Uruguay Y Y Y Y YYYYY Venezuela Y Y Y Y Y Y Y Y Y Yemen YYYY Y 0 Y Y Yugoslavia Y Y Y Y Y Y YYY Zaire 0 Y Y Y Y Y Y Y Y Zambia Y Y Y Y Y Y Y Y q-w- Res.Nos.2678 2679 2871 2872 3030 3031 3111 3112 (MV) (XXV) (XXVI) (XXVI) (XXVII) (XXVII) (XXVIII) (XXVIII) Year 1970 1970 1971 1971 1972 1972 1973 1973 Afghanistan Y Y Y Y Y Y Y Y Albania YYYYYYY Algeria Y Y Y Y Y Y Y Y Argentina Y Y Y Y Y Y Y Y Australia A Y A Y YYYY Austria A Y Y Y Y A A Y Bahamas Y Y Bahrain Y Y Y Y Y Y Bangladesh BarbadosY Y Y Y Y Y Y Y Belgium A Y A Y Y A A Y Benin Y Y Y Y Y Y Y Y Bhutan Y Y Y Y Bolivia 0 0 .Y Y Y Y Botswana A Y Y Y Y Y Y Y Brazil Y Y Y YYYYY Bulgaria Y A Y A Y Y Y Y BurmaY Y Y Y Y Y Y Y BurundiY Y Y Y Y Y YY Byelorussian S.S. RepYAYA Y Y Y Y CanadaA Y A Y Y A A Y Central Africa Empire Y Y Y Y Y YYY ChadY Y Y Y Y Y Y Y Chile Y Y Y Y Y Y Y Y China Y Y Y Y Y Y Colombia Y Y Y Y Y Y Y CongoYY Y Y Y Y Costa Rica Y Y Y Y Y Y Y Y Cuba Y Y Y AYYYY CyprusY Y Y Y Y Y Y Y Czechoslovakia Y A Y A Y Y Y Y Democratic Kampuchea Y Y Y Y YYYY Democratic YemenYY Y Y Y Y Y Y DenmarkA Y Y Y Y A Y Y Dominican Rep. Y Y Y Y Y Y EcuadorY Y Y Y Y Y Y Y EgyptYY Y Y Y Y El Salvador Y Y Y Y Y Y A Y Equatorial Guinea Y Y Y Y Y Y Y Ethiopia Y Y Y Y Y Y Y Y

Res.Nos.2678 2679 2871 2872 3030 3031 3111 3112 (XXV) (XXV) (XXVI) (XxVI) (XXVII) (XXVII) (XXVIII) (XXVIII) Year 1970 1970 1971 1971 1972 1972 1973 1973 Fiji Y Y Y Y Y Y Y Y Finland A Y Y Y Y A YY FranceN Y A Y Y A A Y Gabon Y Y Y Y Gambia Y Y Y Y German D.R. YY Germany, F.D.R. A Y GhanaY YY Y Y Y Y Y GreeceY Y Y Y Y Y Y Y GuatemalaY YY Y Y Y Y Y Guinea Y Y Y Y Y Y Y Y GuineaBissau GuyanaY Y Y Y Y Y Y Y Haiti Y Y YYYY HondurasY Y Y Y Y Y HungaryY A Y A Y Y Y Y Iceland A Y Y Y Y Y Y Y India Y YYYYYYY Indonesia Y Y Y Y Y Y Y Y IranY YY Y Y Y Y Y Iraq Y Y Y Y Y YYY Ireland Y Y Y Y Y A A Y Israel Y Y Y Y Y Y A Italy A Y A Y Y A A Y Ivory Coast YYYYYYYY JamaicaY Y Y Y Y Y Y Y JapanY YY Y Y Y Y Y Jordan Y Y Y Y YYYY KenyaY YY Y Y Y Y Y Kuwait Y Y Y Y Y Y Y Y Lao P.D.R. Y Y Y Y Y Y Y Y LebanonY Y Y Y Y Y Y Y Lesotho 0 0 Y Y Y y Y Y Liberia0 0 Y Y Y Y Y Y Libyan Arab Rep. Y YYYYYYY Luxembourg0 0 A Y Y A A Y Madagascar Y Y Y Y Y Y Y Y Malawi A A A Y Y AAY Malaysia Y Y Y Y Y Y Y Y Maldives 0 0 Y Y Mali Y Y Y Y Y Y Y Y Malta 0 0 YYYYYY Mauritania Y Y Y Y Y Y Y Y Mauritius Y Y Y Y Mexico Y Y Y Y Y Y Y Y Mongolia Y Y Y Y Y Y Y Y

E,7; Res.Nos.2678 2679 2871 2872 3030 3031 3111 3112 (XXV) (XXV) (XXVI) (XXVI) (XXVII) (XXVII) (XXVIII) (XXVIII) Year 1970 1970 1971 1971 1972 1972 1973 1973 Morocco Y Y Y Y Y Y Y Y Nepal0 0Y Y Y Y Y Netherlands A Y Y Y YAAY New Zealand A Y A Y Y Y Y Y Nicaragua 0 0 Y Y Y Y A Y NigerY Y Y Y Y Y Y Y Nigeria Y Y Y Y Y Y Y Y NorwayA Y Y Y Y A Y Y Oman Y Y Y Y Y Y Pakistan Y Y YYYYYY PanamaY Y Y Y Y Y Y Y Papua New Guinea ParaguayY Y Y Y Y Y A Y Peru Y Y Y YYYYY Philippines Y Y Y Y Y Y Y Y Poland Y Y Y Y Y Y Y Y Portugal N N N N N N NN Qatar Y Y RomaniaY Y Y Y Y Y Y Y RoandaY Y Y Y Y Y Y Sao Tome & Principe Saudi Arabia Y Y Y Y Y Y Y Y SenegalY Y Y Y Y Y Y Y Sierra LeoneY YY Y Y Y Y Y Singapore Y YYYYYYY Somalia 0 0 Y Y Y Y Y Y South AfricaN N N N N N N N Spain Y Y Y Y YYYY SriLankaY Y Y Y Y Y Y Y SudanY YY Y Y Y Y Y Surinam Swaziland 0 0 Y Y YY SwedenA Y Y Y Y A Y Y SyriaY YY Y Y Y Y Y Thailand Y Y Y Y Y Y Y Y Togo Y YYYYYYY Trinidad & TobagoY Y Y Y Y Y Y Y Tunisia Y Y Y Y Y Y Y Y Turkey Y Y Y YYYYY UgandaY Y Y Y Y Y Y Y Ukrainian S.S.R.Y A Y A Y Y Y Y

Res. Nos. 2 Year 1' U.S.S.R. Y United Arab Emirates U.K. N U. Rep. of Cameroon Y U..Rep. of Tanzania Y U.S.A. N Upper Volta Y Uruguay Y Venezuela Y Yemen Y Yugoslavia Y Zaire Y Zambia Y 678 2679 2871 2872 3030 3031 3111 3112 XXV) (XXV) (XXVI) (XXVI) (XXVII) (XXVII) (XXVIII) (XXVIII) 970 1970 1971 YY YY YY YY YY YY YY 1971 A Y Y Y Y Y Y Y Y Y Y Y Y 1972 1972 1973 1973 q 73

Res. Nos. 31/ 31/ 31/ 31/ 31/ 31/ 146 147 148 149 150 152 Year 1976 1976 1976 1976 1976 1976 Afghanistan Y Y Y Y YY Albania Y Y Y Y Y Y Algeria Y Y Y Y Y Y Argentina Y Y Y Y Y Y Australia Y Y Y Y YY Austria A Y Y Y Y Y Bahamas Y Y Y Y Y Y Bahrain Y Y Y Y Y Y Bangladesh Y Y Y Y YY Barbados Y Y Y Y Y Y Belgium N Y A A Y A Benin Y Y Y Y Y Y Bhutan Y Y Y Y YY Bolivia Y Y Y Y Y Y Botswana Y Y Y Y Y Y Brazil Y Y Y Y Y Y Bulgaria Y Y Y Y YY Burma Y Y Y Y Y Y Burundi Y Y Y Y Y Y Byelorussian S.S.R. Y Y Y Y Y Y Canada A Y Y YYA Central Africa Empire Y Y Y Y Y Y Chad Y Y Y Y Y Y Chile Y Y Y Y Y Y China Y YYYY Colombia Y Y Y Y Y Y Congo Y Y Y Y Y Y Costa Rica Y Y Y Y Y Y Cuba Y Y YYYY Cyprus Y Y Y Y Y Y Czechoslovakia Y Y Y Y Y Y Democratic Kampuchea Democratic Yemen Y Y Y Y Y Y Denmark A Y Y Y Y A Dominican Rep. Y Y Y Y Y Y Ecuador Y Y Y Y Y Y Egypt Y Y Y Y Y Y El Salvador Y Y Y Y Y A Equatorial Guinea Y Y Y Y Y Y Ethiopia Y Y Y Y Y Y Fiji Y Y Y Y Y Y Finland Y Y Y Y Y Y France N A A A A A Qabon Y Y Y Y Y Y Gambia German D.R. Y Y Y Y Y Y Germany, F.D.R. N A A A A A Ghana Y Y Y Y Y Y Greece Y Y Y Y Y Y

-I 'd Res. Nos. 31/ 31/ 31/ 31/ 31/ 31/ 146 147 148 149 150 152 Year 1976 197o 1976 1976 1976 1976 Guatemala Y Y Y Guinea Y Y Y Y Y Y Guinea-Bissau Y Guyana Y Y Y Y Y Y Haiti Honduras Hungary Y Y Y Y Y Y Iceland Y Y Y Y Y Y India Y YYYYY Indonesia Y Y Y Y Y Y Iran Y Y Y Y Y Y Iraq Y Y Y Y Y Y Ireland A YYYYA Israel Italy A Y Y Y Y A IvoryCoast Y Y Y Y Y Y Jamaica Y Y Y Y Y Y Japan AYYYYY Jordan Y Y Y Y Y Y Kenya Y Y Y Y Y Y Kuwait Y Y Y Y Y Y Lao P.D. Rep. Y Y Y Y Y Lebanon Lesotho Y Y Y Y Y Y Liberia Y Y Y Y Y Y LibyanArabRep.Y Y Y Y Y Y Luxembourg N Y A A Y A Madagascar Y Y Y Y Y Y Malawi A Y Y Y Y Malaysia Y Y Y Y Y Y Maldives YYYYYY Mali Y Y Y Y Y Y Malta Y Y Y Y Y Y Mauritania Y Y y Y Y Y Mauritius YY Mexico Y Y Y Y Y Y Mongolia Y Y Y Y Y Morocco Y Y Y Y Y Y Nepal YYYYYY Netherlands A Y Y A Y A NewZealand A Y Y Y Y Y Nicaragua Y Niger Y Y Y Y YY Nigeria Y Y Y Y Y Y Norway Y Y Y Y Y Y Oman Y Y Y Y Y Y Pakistan Y Y Y Y YY Panama Y Y Y Y Y Y Papua New Guinea Y Y Y Y Y Y Paraguay Peru Y Y Y Y y Y Philippines Y Y Y YYY

476 Res. Nos. 31/ 31/ 31/ 31/ 31/ 31/ 146 147 148 149 150 152 Year 1976 1976 1976 1976 1976 1976 Poland Y Y Y YYY Portugal Y Y Y Y Y Y Qatar Y Y Y Y Y Y Romania Y Y Y Y Y Y Rwanda Y Y Y YYY Sao Tome & Principe Y Y Y Y Saudi Arabia Y Y Y Y Y Y Senegal Y Y Y Y Y Y Sierra Leone Y Y YYYY Singapore Y Y Y Y Y Y Somalia South Africa Spain A Y Y Y Y Y SriLanka Y Y Y Y Y Y Sudan YYYYYY Surinam Y Y Y Y Y Swaziland Y Y Y Y Y Y Sweden A Y Y Y Y Y Syria YYYYYY Thailand Y Y Y Y Y Y Togo Y Y Y Y Y Y Trinidad&TobgaoY Y Y Y Y Y Tunisia Y Y Y Y Y Y Turkey Y Y Y Y Y Y Uganda Ukrainian S.S.R. Y Y Y Y Y Y U.S.S.R. Y Y Y Y Y Y United Arab Emirates Y Y Y Y Y Y U.K. N A A A A A U. Rep. of Cameroon Y Y Y Y Y Y U. Rep. of Tanzania Y YYYYY U.S.A. N A A A A A Upper Volta Y Y Y Y Y Y Uruguay A Y Y Y Y A Venezuela Y YYYYY Yemen Y Y Y Y Y Y Yugoslavia Y Y Y Y Y Y Zaire Y Y Y Y Y Y Zambia Y YYYYY Key: Y - Yes N - No A - Abstention 0 - Absent