Chapter VII. Decisions of international tribunals

International Court of Justice

SOUTH WEST AFRICA CASES (ETHIOPIA V. SOUTH AFRICA; LIBERIA V. SOUTH AFRICA); SECOND PHASE; JUDGEMENT OF 18 JULY 19661

On 18 July 1966, the International Court of Justice delivered its Judgement in the second phase of the South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa).

These cases, relating to the continued existence of the Mandate for South West Africa and the duties and performance of South Africa as Mandatory thereunder, were instituted by Applications of the Governments of Ethiopia and Liberia filed in the Registry on 4 November 1960. By an Order of 20 May 1961 the Court joined the proceedings in the two cases. The Government of South Africa raised preliminary objections to the Court's proceeding to hear the merits of the case, but these were dismissed by the Court on 21 December 1962, the Court finding that it had jurisdiction to adjudicate upon the merits of the dispute.

In its Judgement in the second phase the Court recalled that the Applicants, acting in the capacity of States which had been Members of the former League of Nations, had put forward various allegations of contraventions of the League of Nations Mandate for South West Africa by the Republic of South Africa.

The contentions of the Parties had covered, inter alia, the following issues: whether the Mandate for South West Africa was still in force and, if so, whether the Mandatory's obligation to furnish annual reports on its administration to the Council of the League of Nations had become transformed into an obligation so to report to the General Assembly of the United Nations; whether the Respondent had, in accordance with the Mandate, promoted to the utmost the material and moral well-being and the social progress of the inhabitants of the Territory; whether the Mandatory had contravened the prohibition in the Mandate of the "military training of the natives" and the establishment of military or naval bases or the erection of fortifications in the Territory; and whether South Africa had contravened the provision in the Mandate that it (the Mandate) can only be modified with the consent of the Council of the League of Nations, by attempting to modify the Mandate without the consent of the United Nations General Assembly, which, it was contended by the Applicants, had replaced the Council of the League for this and other purposes.

Before dealing with these questions, however, the Court considered that there were two questions of an antecedent character, appertaining to the merits of the case, which might render an enquiry into other aspects of the case unnecessary. One was whether the Mandate still subsisted at all and the other was the question of the Applicants' standing in this phase of the proceedings—i.e., their legal right or interest regarding the subject-matter of their claims. As the Court based its Judgement on a finding that the Applicants did not possess

I.CJ. Reports 1966, p. 6.

such a legal right or interest, it did not pronounce upon the question of whether the Mandate was still in force. Moreover, the Court emphasized that its 1962 decision on the question of competence had been given without prejudice to the question of the survival of the Man-date—a question appertaining to the merits of the case, and not in issue in 1962 except in the sense that survival had to be assumed for the purpose of determining the purely jurisdictional issue—which was all that was then before the Court.

Turning to the basis of its decision in the present proceedings, the Court recalled that the Mandates System had been instituted by Article 22 of the Covenant of the League of Nations. There were three categories of mandates, "A", "B" and "C" mandates, which had, however, various features in common as regards their structure. The principal element of each instrument of mandate consisted of the articles defining the mandatory's powers and its obligations in respect of the inhabitants of the territory and towards the League and its organs. The Court referred to these as the "conduct" provisions. In addition, each instrument of mandate contained articles conferring certain rights relative to the mandated territory directly upon the Members of the League as individual States, or in favour of their nationals. The Court referred to rights of this kind as "special interests", embodied in the "special interests" provisions of the mandates.

In addition, every mandate contained a jurisdictional clause, which, with a single exception, was in identical terms, providing for a reference of disputes to the Permanent Court of International Justice, which, the Court had found in the first phase of the proceedings, was now, by virtue of Article 37 of the Court's Statute, to be construed as a reference to the present Court.

The Court drew a distinction between the "conduct" and the "special interests" provisions of the mandates. The present dispute...