1 General Assembly Res. 2145 (XXI); 61 A.J.I.L. 649(1967).

2 This Committee submitted three proposals to the General Assembly in April, 1967: an African plan for the complete take-over of South West Africa by the United Nations by June, 1968; a Latin American plan for the creation of a United Nations Administration for the Territory; and a Western plan for discussions with South Africa on the basis of Bes. 2145 (XXI). On May 19, 1967, the Assembly resolved by 85 votes to 2 (with 30 abstentions) to establish an 11-Member Council to take over the administration of South West Africa from South Africa. Bes. 2248 (S-V); General Assembly, Fifth Spec. Sess., Official Records, Supp. No. 1 (A/6657), p. 1.

3 U.N. Monthly Chronicle, November, 1966, pp. 21, 25 and 26 respectively.

4 The Star, Johannesburg, Nov. 2, 1966.

5 See Rosalyn Higgins, “The International Court and South West Africa: the Implications of the Judgment,” 42 International Affairs 573 at 595-596 (1966).

6 Permanent Mandates Commission, Minutes, 5th Sess., 1924, p. 177. Mme. Bugge- Wicksell, on the other hand, appears to have taken the attitude that both the Court and the Council of the League were capable of making a determination on whether a Mandatory complied with its obligations under a mandate. In a report to the Commission she stated that revocation “could only occur if the Mandatory Power had misused its administrative rights over the territory, to the detriment of the native population or of other members of the League of Nations, to such an extent that one of the latter felt bound to petition the Council or the Permanent Court of International Justice for the transfer of the Mandate to another country” (italics added). Ibid., 6th Sess., 1925, p. 154.

7 Mandates under the League of Nations 521 (1930).

8 ‘’ Some Legal Aspects of the Mandate System: Sovereignty-Nationality-Termination and Transfer,” 23 Grotius Society Transactions 85 at 122 (1938). See also idem, “The Creation and Application of the Mandate System,” 25 ibid. 185 at 211 (1940).

9 Wright, op. cit. 475-476; Hales, loo. cit (1940) 256. Opposed to this view is that of Nathan Feinberg, who insisted that Member States of the League were permitted to invoke the jurisdiction of the Permanent Court in respect of their own interests alone and not in respect of the welfare of the inhabitants of a mandated territory (La Juridiction de la Cour Permanente de Justice International dans le Systeme des Mandats 205 (1930)). He contended that, before the Council revoked a mandate, it should request the Court to give an advisory opinion on the question of whether the Mandatory had failed to comply with its obligations contained in the mandate agreement (at p. 201). To Feinberg the effect of such an opinion differed little from that of a judgment of the Court in contentious proceedings, for “il est certain que cet avis serait, dans tons les cas, observe” par la puissance mandataire en cause” (at p. 196). (Of course subsequent events, viz. South Africa's refusal to accept three advisory opinions of the International Court of Justice, have disproved Feinberg's belief.) It should, however, be stressed that Feinberg did not contend that such an advisory opinion was obligatory, for he was well aware of the reluctance of the Council to hand over a dispute to the Permanent Court for a legal opinion, and of its preference for a political decision (at pp. 197-200).

10 See 2 Rosenne, The Law and Practice of the International Court 651 (1965) on the non-binding nature of an advisory opinion under the Covenant.

11 South “West Africa, Second Phase, [1966] I.C.J. Rep. 6 at 10-11.

12 By holding that it had jurisdiction in a dispute between a “member of the League of Nations” and a Mandatory Power over “the observance by the mandatory of its obligations … toward the inhabitants of the Mandated Territory” in 1962 (South West Africa Cases, Preliminary Objections, [1962] I.C.J. Eep. 319 at 343), the Court implicitly recognized that it did have the power to determine whether or not South Africa had fulfilled her obligations towards the indigenous inhabitants of South West Africa. This finding of 1962 was, however, reversed in 1966 by the International Court —a reversal which was described as unjustifiable in law by the dissenting judges (South West Africa, Second Phase, loc. cit. at 331-337 (Judge Jessup), 239-242 (Judge Koretsky) 460 (Judge Padilla Nervo), 250 (Judge Tanaka) and 494-497 (Judge ad hoc Mbanefo), and which has since been criticized on the same ground by most commentators on the Court's decision. See the present writer, in ‘’ The South West Africa Cases, Second Phase, 1966,” 83 South African Law Journal 429 at 438-447 (1966); Rosalyn Higgins, loc. cit. 580-581; Robert W. Scrivner, ‘ ‘ The South West Africa Case : 1962 Revisited,” 2 African Forum 33 at 36-37 (No. 2, 1966); L. C. Green, “South West Africa and the World Court,'’ 22 International Journal of the Canadian Institute of International Affairs 39 at 66 (1966-7); E. “Van Raalte, “Een Belangrijk maar Teleurstellend International Arrest,” 20 International Spectator 1259 at 1485-1491 (1966).

13 See the Special Report of the Committee on South West Africa in which legal action of the nature instituted by Ethiopia and Liberia was recommended so as to provide an enforceable judgment against South Africa. General Assembly, 12th Sess., Official Records, Supp. No. 12A (A/3625).

14 South West Africa, Second Phase, loc. cit. note 11 above, 51

15 Ibid. 29; see also 24, 26 and 44.

16 Loc. cit. note 12 above, 467.

17 In 1966 the Court stated that it made no finding on any of the issues before it, which included the question of the United Nations’ succession to the supervisory functions of the League of Nations (South West Africa, Second Phase, loc. cit. at 18-19 and 22-23). Thus the decision left unblemished the Court's previous finding in the International Status of South West Africa, [1950] I.C.J. Eep. 128 at 143, that such succession had occurred. This obvious truth was emphasized by the Department of State in a statement issued shortly after the 1966 judgment, 55 Department of State Bulletin 231 (1966); 61 A.J.I.L. 597 (1967).

18 In 1966 the Court stated of the mandates system under the League of Nations: ” If any difficulty should arise over the interpretation of any mandate, or the character of the mandatory's obligations, which could be cleared up by discussion or reference to an ad hoc committee of jurists—a frequent practice in the League—the Council could in the last resort request the Permanent Court for an advisory opinion. Such an opinion would not of course be binding on the mandatory … but it would assist the work of the Council.” (South West Africa, Second Phase, loc. cit. at 44; italics added.) This passage clearly indicates that an advisory opinion was not compulsory in such circumstances.

19 “General Assembly, 12th Sess., Official Records, Supp. 12A (A/3625), p. 3.

20 P.C.I.J. (1923), Series B, No. 5.

21 South Africa has declined to accept all three advisory opinions of the Court rendered in respect of South West Africa, namely, those on the International Status of South West Africa, note 17 above; the Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South West Africa, [1955] I.C.J. Rep. 67; and the Admissibility of Hearings of Petitioners by the Committee on South West Africa, [1956] I.C.J. Rep. 23.

22 As a result of these refusals to accept the advisory opinions of the Court, the General Assembly can hardly be accused of ignoring Nathan Feinberg's suggestion that the revocation of a mandate should be preceded by an advisory opinion of the Court, for that suggestion was based on the view that an advisory opinion would always be accepted (see note 9 above).

23 In a declaration attached to the judgment of the Court, the President, Judge Spender, criticized the discussion of the merits of the dispute in the separate opinions. (See South West Africa, Second Phase, loc. cit. note 11 above, at 51-57. Sed contra, see the views of Judges Tanaka (at 262-263) and Jessup (at 325-326).

24 Ibid, at 140-193.

25 Ibid, at 235.

26 Ibid, at 315.

27 Ibid, at 464.

28 Ibid, at 483.

29 ibid, at 490.

30 It should be mentioned that the General Assembly passed similar resolutions prior to the 1966 judgment in the South West Africa Cases. For instance, in 1960 it resolved that South Africa “has failed and refused to carry out its obligations under the Mandate” (General Assembly Res. 1565 (XV) of December 18, 1960). Such determinations may well have been premature, as they were made at a time when it was commonly believed that it was possible for states to obtain a binding decision of the International Court on this matter.

31 See the statement by Judge Lauterpacht in his separate opinion in the Voting Procedure Case, note 21 above, that the supervisory organ may pronounce “ a verdict upon the conformity of the action of the administering State with its international obligations” (at 99).

32 Op. cit. 21-22.

33 David Hunter Miller, The Drafting of the Covenant, Doc. 9, p. 104 (1928).

34 U. S. Foreign Relations: Paris Peace Conference, 1919, “Vol. 3, p. 761. From this statement E. N. Chowdhuri concludes that the power of termination was deliberately excluded to suit M. Simon and others who were of a like mind on this subject (International Mandates and Trusteeship Systems 62 (1955)). It is submitted that this is incorrect. M. Simon and the Prime Minister of New Zealand, Mr. Massey (see note 35 below) opposed the mandates system as a whole and favoured outright annexation instead. They recognized that revocation was a necessary part of the mandates system, even if it was only implied, and therefore were opposed to the system itself. M. Simon's statement should therefore be seen as a recognition of the fact that revocation was implied, rather than as a rejection of the right of revocation.

35 U. S. Foreign Relations, cited above, p. 752.

36 Accountability to the League is provided for in Art. 6 of the Mandate for South West Africa.

37 Permanent Mandates Commission, 3rd Sess., 1923, pp. 311-312.

38 Ibid., 5th Sess., 1924, pp. 177-178.

39 Ibid., p. 155.

40 Le Système des Mandats Coloniaux,” 3-4 Revue du Droit International et de Legislation Compare 351 (1920).

41 Ibid

42 Permanent Mandates Commission, 5th Sess., 1924, p. 156.

43 Ibid.

44 Ibid., 6th Sess., 1925, p. 154, and note 6 above.

45 Ibid., 19th Sess., 1930, p. 175.

46 See, for example, the statement by Mme. Bugge-Wicksell, ibid., 6th Sess., 1925, p. 154.

47 Op. cit. 519-522.

48 La Theorie Général des Mandats Internationaux 115-116 (1925). Cited and criticized by A. Berriedale Keith in “The Mandatory System,” 7 Journal of Comparative Legislation and International Law (3rd Series) 280 (1925).

49 The Mandates System 16 (1930).

50 Die Mandaat vir Suidwes-Afrika 131 (1938).

51 Op. cit. note 9 above, 200-201.

52 23 Grotius Society Transactions 122 (1938), and 25 ibid. 204 (1940).

53 “On Mandatory Government in the Law of Nations,” 1 Journal of Comparative Legislation and International Law (3rd Series) 175 at 180 (1919). Baty, writing at about the same time, was skeptical about the powers of control retained by the League, but was prepared to concede that it did possess control (including presumably the right to revoke a mandate) where the Mandatory's conduct was “patently revolting“ (“Protectorates and Mandates,” 2 Brit. Yr. Bk. of Int. Law 109 at 116 (1921-1922)). Bed contra, see the view of Berriedale Keith in “Mandates,” 4 Journal of Comparative Legislation and International Law (3rd Series) 71 (1922).

54 Note 17 above, at 148.

55 Loc. cit. It is submitted that the Court went too far in this case in stating that it was “not possible to draw any conclusion by analogy from the notions of mandate in national law” (at 132), for, taken literally, this statement is at variance with Art. 38 (1) (c) of the I.C.J. Statute, which directs the Court to apply “the general principles of law recognized by civilized nations.” It is probable that the Court only intended to warn against taking the analogy too far.

56 For a discussion of the mandates system and its municipal law analogies, see Lord McNair, separate opinion, International Status of South West Africa, note 17 above, at 148-153; J. L. Brierly “Trusts and Mandates,” 10 Brit. Yr. Bk. of Int. Law 217 (1929); Quincy Wright, op. cit. 375-390; de Villiers, J. A., in B. v. Christian, 1924 A.D. (South Africa) 101 at 121.

57 W. W. Buckland states that the right of revocation ‘’ resulted from the confidential aspect of mandate. So long as nothing had been done, the mandator could revoke with impunity, but if he did so when the mandatory had incurred expenses or liabilities he must take these over” (A Text Book of Roman Law 517 (3rd ed.)). See also, Digest 17.15; Gaius 3.159; and Institutes 3.26.9. It is submitted that Quincy Wright is incorrect in saying that the mandans “may not revoke after execution has begun“ (op. cit. 379), for, as Buckland points out, this was possible, provided that the mandatary was compensated for any losses incurred.

58 Buckland, op. cit. 160; and Institutes 1.26.

59 38 Halsbury's Laws of England 942 (3rd ed.).

60 American Law Institute, Second Restatement of the Law. Trusts 2d., Vol. I (1959), par. 107.

61 A. M. Honoré, The South African Law of Trusts 156-159 (1966); L. I. Coertze Die Trust in die Romeins-Hollandse Reg 95 (1948).

62 it should be noted that in the case of a trust the trustee's rights are terminated The trust itself is not revoked. This is analogous to the position of South West Africa for the international trust remains (i.e., the territory is still viewed by the General Assembly as having an international status); it is only South Africa's rights as trustee which have been “terminated.“

63 1924 A.D. 101.

64 Ibid. Innes, C. J. (at 112-113), and de Villiers, J . A. (at 121), left this question undecided. In In re Tamasese, 1933-1934 Annual Digest and Reports of Public International Law Cases, Case No. 16, the Supreme Court of New Zealand accepted the competence of the League of Nations to revoke New Zealand's Mandate for Samoa and appoint another Mandatory “ i f New Zealand were to fail in its obligations to the Samoan people.“

65 Lord McNair, The Law of Treaties 553 (1961). The I.L.C. Draft Articles on the Law of Treaties confirm this fundamental principle. Art. 57 (1) provides that: “A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part . “ Art. 57 (3) (b) defines a material breach as “ the violation of a provision essential to the accomplishment of the object or purpose of the’ treaty . “ See 61 A.J.I.L. 421-422 (1967).

66 South West Africa Cases, Preliminary Objections, note 12 above, at 330-332. In their joint dissenting opinion of 1962, Judges Spender and Fitzmaurice denied that the Mandate was a treaty and asserted that it was simply “ a Declaration promulgated by a resolution of the Council of the League” in the nature of a quasi-legislative act (Hid. at 490). The Court of 1966 carefully avoided referring to the Mandate as a treaty and instead referred to it as a “resolution” of the Council of the League (South West Africa, Second Phase, loo. cit., at 20, 26 and 27). Nevertheless, as the matter was clearly res judicata, the Court of 1966 did not attempt to disturb the finding of 1962 on this point.

67 Op. oit. note 7 above, at 520.

68 Op. cit. note 50 above, at 132.

69 Quincy Wright, op. cit. 129. This practice accorded with Art. 4 (5) of the Covenant, which stipulated that “Any Member of the League not represented on the Council shall be invited to send a Representative to sit as a member at any meeting of the Council during the consideration of matters specially affecting the interests of that Member of the League.“

70 Permanent Mandates Commission, 5th Sess., 1924, p. 156. It should, however, be noted that this statement by M. Van Rees on the unanimity rule was made prior to the decision of the Permanent Court in the Mosul Case (Interpretation of Article 3 of the Treaty of Lausanne, P.C.I.J. (1925), Series B, No. 12).

71 Op. cit. note 50 above, at 132.

72 South West Africa Cases, Preliminary Objections, note 12 above, at 336-337; Second Phase, note 11 above, at 31, 44-45, 46 and 50. See also the separate opinions of Judge Wellington Koo and Judge ad hoc Van Wyk to the same effect in the Second Phase (at 218-219 and 135 respectively).

73 Interpretation of Article 3 of the Treaty of Lausanne, P.C.I.J. (1925), Series B, No. 12.

74 Ibid. 32.

75 Note 21 above.

76 Ibid. 98-106. See contra, see the separate opinion of Judge Klaestad, ibid. 85-86.

77 Ibid. 99.

78 Ibid. 105.

79 Ibid. 103. See also Judge Jessup, separate opinion, South West Africa, Second Phase, note 11 above, at 402-406. Wellington Koo, Jr., in Voting Procedures in International Political Organizations (1947), concludes, after an examination of the practice of the League, that “whenever the Council deemed itself to be acting in a judicial capacity, it was willing to apply the legal principle that a person shall not be judge and party in his own cause,” but “where the function was primarily political, the Council was reluctant to adopt a resolution in the face of an adverse vote of one of the parties” (at p. 107). In determining whether a Mandatory's conduct was compatible with its obligations under the mandate and, if not, what measures were to be taken in consequence, it is submitted that the Council would be exercising a quasijudicial function and not a strictly political function.

80 Note 11 above, at 44-45.

81 Quincy Wright, op. cit. 522; Hales, 23 Grotius Society Transactions 121 (1938).

82 Preliminary Objections, note 12 above, at 336-337.

83 Second Phase, note 11 above, at 46.

84 Note 21 above, at 74.

85 According to Shabtai Rosenne, ‘ ‘ opinions are sometimes encountered flatly contradicting both the underlying principles and their application by the majority, and here, dependent upon the author's general reputation and the cogency of the reasoning, the individual opinion may in the course of time come to be seen by enlightened and informed opinion as expressive of better law.” 2 The Law and Practice of the International Court 597 (1965).

86 Hales, 23 Grotius Society Transactions 121 (1938); Quincy Wright, op. tit. 522. Stoyanovsky went further and suggested that the expulsion of a mandatory State from the League would automatically result in the loss of its mandate (La The“orie G6ne“rale des Mandats Internationaux 55 (1925); cited in Quincy Wright, op. cit. 440).

87 The writer considers it necessary to emphasize this obvious point in the light of the attempts of the South African Government to attribute more than is permissible to the judgment of the Court. (See, for example, Ethiopia and Liberia versus South Africa, published by the Department of Information, Pretoria, South Africa, pp. 80 and 282). Indeed certain advertisements inserted in foreign publications by the South African Government, describing the findings of the Court, are so misleading that Judge Fitzmaurice felt obliged to correct the “misleading” impressions caused by them in a letter to the Spectator (Feb. 24, 1967, p. 222); see also the letter of Mr. Ernest A. Gross (Spectator, March 24, 1967, p. 353).

88 South West Africa, Second Phase, loc. cit. 19. See also at 18 and 22-23.

89 This fact was stressed by Judge Jessup in his dissenting opinion of 1966: “The Court has not rendered a decision contrary to the fundamental legal conclusions embodied in its Advisory Opinion of 1950 supplemented by its Advisory Opinions of 1955 and 1956 and substantially reaffirmed in its Judgment of 1962” (South West Africa, Second Phase, loc. cit. 331). See also 55 Department of State Bulletin 231 (1966); Rosalyn Higgins, loc. cit. 594-595; L. C. Green, loc. cit. 66; and Robert W. Scrivner, loc. cit. 40.

90 Note 17 above, at 137. This finding was reaffirmed by several of the dissenting judges in the Second Phase of the South West Africa Cases, viz. Judges Wellington Koo (p. 236), Tanaka (p. 278), Jessup (p. 388) and Padilla Nervo (p. 461); and Judge ad hoc Mbanefo (p. 490). Sed contra, the separate opinion of Judge ad hoc Van Wyk, ibid. 125; and the joint dissenting opinion of Judges Spender and Fitzmaurice, South West Africa Cases, Preliminary Objections, note 12 above, at 532, note 2.

91 This point was clarified by the International Court in the Admissibility of Hearings of Petitioners Case, [1956] I.C.J. Eep. 23. In reply to the argument that the effect of the 1950 Opinion was only to allow the General Assembly to do anything which the League Council had done in the exercise of its supervisory functions and not to allow it to do something which the Council had had the authority to do but had not done, the Court stated that it did not find “ a n y 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” (at 29).

92 International Status of South West Africa, note 17 above, at 138.

93 Note 21 above, at 73. See also the separate opinion of Judge Tanaka, South West Africa, Second Phase, loo. ait. 275.

94 International Status of South West Africa, note 17 above, at 144.

95 Ibid. 141.

96 Ibid. 182. See also the observations by Judge Alvarez to the same effect at 180 and 183.

97 International Status of South West Africa, note 17 above, at 137.

98 Resolutions dealing with internal matters such as budgetary assessments (Art. 17), the establishment of subsidiary organs (Art. 22), requests for advisory opinions from the International Court of Justice (Art. 96), the suspension of rights and privileges of membership (Art. 5) and the expulsion of Members from the Organization (Art. 6) have full binding force. See Certain Expenses of the United Nations, [1962] I.C.J. Rep. 151 at 163.

99 Note 21 above, at 87-88 and 114-122, respectively.

100 Note 11 above, at 50-51.

101 Judge Lauterpacht, separate opinion, Voting Procedure Case, note 21 above, at 118-119; Judge Klaestad, separate opinion, ibid. 88; and the statement by Mr. Lawrence, South Africa's representative at the United Nations in 1947, reported in General Assembly, 2nd Sess. (1947), Official Records, 105th Meeting, p. 637. See generally on this topic, F. Blaine Sloan, “ T h e Binding Force of a ‘Recommendation’ of the General Assembly of the United Nations,” 25 Brit. Yr. Bk. of Int. Law 1 (1948); D. H. N. Johnson, “ The Effect of Resolutions of the General Assembly of the United Nations,“ 32 ibid. 121 (1955-1956); Sir Gerald Fitzmaurice, ‘ ‘ Hersch Lauterpacht—the Scholar as Judge , “ 38 ibid. 2-12 (1962); and the present writer, “The Legal Effect of United Nations Resolutions on Apartheid,” 83 South African Law Journal 44 (1966).

102 South West Africa, Second Phase, note 11 above, at 50; and Judge Klaestad, Voting Procedure Case, note 21 above, at 87. Judge Lauterpacht prefers to state that resolutions of the General Assembly “ d o not possess a degree of legal authority equal to that of the decisions of the Council of the League of Nations” (ibid. 123).

103 in the Norwegian Loans Case, [1957] I.C.J. Rep. at 53, Judge Lauterpacht stated: “Unquestionably, the obligation to act in accordance with good faith, being a general principle of law, is also part of international law.” Commenting on this statement Sir Gerald Fitzmaurice declared that “action in good faith is an international law obligation … and accordingly action not in good faith must be considered as a breach of international law, even if one difficult to establish, and the consequences of which may be uncertain.” 38 Brit. Yr. Bk. of Int. Law 9 (1962).

104 Judge Lauterpacht, separate opinion, Voting Procedure Case, loo. cit. 118.

105 Note 21 above, at 76.

106 L. M. Goodrich and E. Hambro, Charter of the United Nations 277 (2nd ed., 1949).

107 The question whether the continued presence of South Africa in the Territory of South West Africa constitutes a “threat to the peace” warranting sanctions under Ch. VIIIs, of course, a political decision which must be left to the Security Council. See Dr. Rosalyn Higgins’ discussion of the finding that the Rhodesian situation constitutes a “ threat to the peace” in 23 The World Today 99-103 (1967). In this respect the suggestion should be rejected that, because three judges found in 1966 that there was no evidence of militarization within South West Africa (South West Africa, Second Phase, cited note 11 above, at 320-322 (Judge Tanaka), 330 (Judge Jessup) and 205- 213 (Judge ad hoc Van Wyk)), South Africa's continued administration of the Territory cannot constitute a “threat to the peace.” (This suggestion is made in an advertisement of the Government of South Africa in the Spectator of Feb. 24, 1967, p. 218.) Such an approach ignores the repercussions caused by the application of apartheid in South West Africa upon other African states.

108 International Status of South West Africa, note 17 above, at 137.

109 In terms of the Covenant of the League, no decision could have been taken by the Council to revoke the Mandate for South West Africa without the concurring votes of the representatives of the Principal Allied and Associated Powers (Arts. 4 (1) and 5 (1)) . The suggested procedure for revocation by the United Nations would ensure that the consent of the Permanent Members of the Security Council was obtained in the same way and would, it is submitted, thereby approximate more closely to the procedure of the League. See, further, on this point, Judge Lauterpacht, in Voting Procedure Case, note 21 above, at 95.

110 South West Africa, Second Phase, note 11 above, at 275. Judge Lauterpacht indicated that the exceptional circumstances of the case may demand a procedure of supervision not specifically provided for in the Charter and that the resort to such a course should be permissible (Voting Procedure Case, loo. cit. 106-114).

111 Certain Expenses of the United Nations, [1962] I.C.J. Rep. 151 at 163.

112 Hans Kelsen, The Law of the United Nations 711 (1951); Goodrich and Hambro, op. cit. 142.