1 General Assembly Res. 2324 (XXII); 62 A.J.I.L. 488 (1968).

2 Security Council Res. 245 (1968); 62 A.J.I.L. 759 (1968).

3 Security Council Res. 246 (1968); 62 A.J.I.L. 764 (1968).

4 U.N. Doc. S/8357/Add. 9.

5 Both the United Kingdom and France, which had not voted for Res. 2145 (XXI), reserved their positions on the termination of the Mandate in the explanations of their votes for Resolutions 245 and 246: U.N. Monthly Chronicle, February, 1968, p. 14; April, 1968, pp. 34-35.

6 The Revocation of the Mandate for South West Africa,” 62 A.J.I.L. 78 (1968). See, too, Doc. S/8357/ Add. 9.

7 For a criticism of Res. 2145 (XXI) in general and the present writer's views in particular, see W. M. van der Westhuizen “Die Bevoegdheid van die Verenigde Volke om die Mandaat vir Suidwes-Afrika te Beëindig,” 31 Tydskrif vir Hedendaagse Romeins- Hollandse Reg 330 (1968); and Marinus Wiechers, “South West Africa: The Decision of 16 July 1966 and its Aftermath,” 1 Comp. and Int. Law J. of Southern Africa 408 (1968).

8 Proclamation No. R. 292 of 1968, Government Gazette Extraordinary No. 2179 of Oct. 4, 1968 (Regulation Gazette No. 1026). For a discussion of this agreement, see the present writer in 86 South African Law Journal 88 (1969).

9 The 1947 Extradition Agreement between South Africa and the United States (148 U.N. Treaty Series (1952), No. 1938, p. 85) defines the territory of South Africa for the purposes of the treaty as including “any territory at any time under the jurisdiction of His Majesty's Government in the Union of South Africa whether as mandated territory, protectorate or otherwise,” provided that the application of the treaty is expressly extended to such a territory. In 1951 this extension of the treaty to South West Africa was expressly effected: 151 U.N. Treaty Series (1952), No. 1938, p. 388).

10 373 U.N. Treaty Series (1960), No. 5314. Although this treaty does not expressly refer to South West Africa, both it and that with the Federation of Rhodesia and Nyasaland define the territory of South Africa as including “any other territory falling under the jurisdiction” of the Republic.

11 Proclamation No. R. 151 of 1965, Government Gazette Extraordinary No. 1156 of June 25, 1965 (Regulation Gazette No. 507). This treaty is now binding on both Southern Rhodesia and Malawi. See the present writer in 82 South African Law Journal 430 (1965) and 84 ibid. 250 (1967).

12 For detailed accounts of the course of this trial, see Professor Richard A. Falk, “Observer's Report on The State v. Tuhadeleni and others,” in Erosion of the Rule of Law in South Africa, and the South African Government's Report on the trial to the Secretary General in Doc. S/8357/ Add. 9. The full proceedings of the trial are not published in the South African Law Reports, but the preliminary objection before the Transvaal Provincial Division is reported in State v. Tuhadeleni, 1967 (4) South African Law Reports 511 (T), and the appeal in State v. Tuhadeleni, 1969 (1) ibid. 153 (A.D..).

13 During the course of the trial, evidence was presented to the effect that the accused had anticipated a judgment favorable to their cause and had only turned to violence after the decision of the court had deprived them of judicial redress for their grievances. See, for example, the statement by Mr. Toivo Herman Ja Toivo: “The judgment of the World Court was a bitter disappointment to us. We felt betrayed and we believed that South Africa would never fulfil its trust. Some felt that we would secure our freedom only by fighting for it” (loc. tit. 58).

14 The legal authority for this detention was not expressly revealed, but it could have been either Sec. 22 of the General Law Amendment Act, No. 62 of 1966, which permits detention of persons suspected of certain offenses for periods of fourteen days (which may be renewed by a judge in chambers), or Sec. 215 bis of the Criminal Procedure Act, No. 56 of 1955, which allows potential state witnesses to be detained without trial for up to six months, though this period of detention is often renewed in practice. Although expressly designed to detain witnesses, it has in practice also been used for potential accused persons.

15 s also been criticized by writers both within and outside the Republic. See Arthur Suzman, “South Africa and the Rule of Law,” 85 South African Law Journal 261 (1968); Jean Davids and the present writer in Annual Survey of South African Law, 1967, pp. 327, 377; Mary Jean Pew, “South Africa and Terrorism,” 11 World View 7 (February, 1968). The Act has, however, been vigorously defended by the South African Government in South Africa and the Rule of Law (published by the Department of Foreign Affairs, 1968), p. 43, and in Doc. S/8357/ Add. 9.

16 He was later convicted and sentenced to life imprisonment.

17 A full Appeal Court of eleven judges sits only when the validity of an Act of Parliament is challenged. The previous occasion on which such a full court sat was in 1956 in Collins v. Minister of the Interior, 1957 (1) South African Law Reports 552 (A.D.), in which the validity of the statute removing Colored voters from the common roll was questioned.

18 State v. Tuhadeleni, 1969 (1) South African Law Reports 153 (A.D.).

19 Quincy Wright, Mandates under the League of Nations 475-476 (1930); James C. Hales, “The Creation and Application of the Mandate System,” 25 Grotius Society Transactions 256 (1940).

20 [1950] I.C.J. Rep. 128 at 158 and 164-165 respectively.

21 [1966] ibid. 6.

22 The Court left open the question whether it was competent to adjudicate upon the “special interests” provisions which protected the national interests of Member States of the League of Nations in the mandated territories. Ibid, at 22. The only example of such a provision in the Mandate for South West Africa is Art. 5, which grants freedom to missionaries who were “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.” (17 A.J.I.L. Supp. 175 (1923).)

23 Wright, op. cit. 405-435.

24 Syria, the Lebanon, French Cameroons and Togoland.

25 See Quincy Wright, op. cit. 428-432. Art. 90 of the Lebanon Constitution of 1926 provided: “The power established by the present constitution shall be exercised subject to the rights and duties of the mandatory power as they result from Article 22 of the Covenant of the League of Nations and from the mandate.”

26 Wright, op. cit. 433.

27 Ibid. 433-435.

28 53-54 Vict. c. 37.

29 Although the 1922 Order in Council provided for the establishment of a representative legislative council, this scheme was abandoned on account of the non-cooperation of the Arab community. In 1923 an amending Order in Council was issued giving legislative authority to the High Commissioner. N. Bentwich, The Mandates System 28-30 (1930).

30 See below, p. 28, and Wright, op. cit. 410-412.

31 Ibid. 414-419.

32 Ibid. 412-414. See, too, Maleksultan v. Jeraj, 1955 Int. Law Rep. 81.

33 Wright, op. cit. 407-408; Bentwich, op. cit. 52-69.

34 The Western Samoa Order in Council, No. 569 of 1920 (S.R. & O. 1920 (No. 2224) 1, p. 747).

35 1933-34 Annual Digest and Reports of Public International Law Cases, No. 16, p. 42.

36 Ibid., No. 15, p. 36.

37 In Tagaloa v. Inspector of Police, [1927] N.Z.L.R. 883 (44 Law Quarterly Review 419 (1928)), the majority of the New Zealand Supreme Court took the view that the source of this legislative power was the 1920 Order in Council which allowed New Zealand to legislate extraterritorially in respect of Samoa. The dissenting judge in this case, however, and the court in In re Tamasese and Nelson v. Braisby, took the view that New Zealand enjoyed plenary powers over Samoa because she had been authorized directly by the League of Nations to administer the territory. See, further, A. B. Keith, The Dominions as Sovereign States 670 (1938).

38 Cited note 35 above, at 44.

39 Local legislative powers were vested in an administrator and legislative council, which consisted largely of nominated members. Keith, op. cit. 670.

40 This agreement is contained in a schedule to the Act of the Imperial Parliament, 10-11 Geo. V (1920), c. 27.

41 Ibid., Sec. 1.

42 The Australian Act (17 Commonwealth Acts, No. 8 of 1919) makes no mention of the Covenant, and the Mandate is only mentioned in the preamble. In New Zealand the agreement was not confirmed by Act of Parliament but by resolution of the House of Representatives on Oct. 23, 1919 (Parliamentary Debates (New Zealand), Vol. 185, p. 795). See, further, A. H. Charteris, “The Mandate over Nauru Island,” 4 Brit. Yr. Bk. Int. Law 137 (1923-1924).

43 9-10 Geo. V (1919), c. 33.

44 Isaacs, J., in Mainka v. Custodian of Expropriated Property, 34 Commonwealth Law Reports 297 at 300 (1923-1924).

45 63-64 Vict. (1900), c. 12.

46 Evatt, J., in Jolley v. Mainka, 49 Commonwealth Law Reports 242 at 289 (1933); and again in Ffrost v. Stevenson, 58 ibid. 528 at 608 (1937).

47 Per Starke, J., in Jolley v. Mainka, note 46 above, at 252; and per Latham, C.J., in Ffrost v. Stevenson, note 46 above, at 555-556.

48 106 Commonwealth Law Reports 186 (1961-1962).

49 See A. C. Castles in International Law in Australia 334-337 (1966).

50 No. 25 of 1920.

51 In 1932 the Act was amended to create an Executive Council and Legislative Council (consisting of nominated members only) for New Guinea. Keith, op. cit. 472.

52 Op. cit. 472 (italics added). See, too, Wright, op. cit. 423-424.

53 Cited note 48 above, at 196. Strangely, the Court made this pronouncement only after it had thoroughly examined the consistency of the statute in question with the Trusteeship Agreement and found that no inconsistency existed.

54 Evatt, J., in Ffrost v. Stevenson, note 46 above, stated that Sec. 122 “strongly suggests that the territories acquired by the Commonwealth have become part and parcel of the King's territorial possessions and dominions” (at 589).

55 Castles, op. cit. 328, 333, 337.

56 See the editorial comment by Sir Hersch Lauterpacht in 1933-34 Annual Digest and Reports of Public International Law Cases 41. Cf. Leon v. Gubernik, 1948 ibid. 42, and below, p. 29. In Sheriff es Shanti v. Attorney-General for Palestine, 1935-37 ibid., No. 31, it appears that a magistrates’ court refused to apply the terms of the Order in Council for Palestine on the ground that it was in conflict with the Mandate. This bold decision was, however, set aside on appeal.

57 Judgment of the Palestine Supreme Court in Murrah v. The District Governor of Jerusalem, June 25, 1925, unreported, but cited by Wright, op. cit. 410-411.

58 1926 Appeal Cases 321.

59 Ibid, at 327.

60 For a full survey of these decisions, see Hales, J. C., “The Creation and Application of the Mandate System,” 25 Grotius Society Transactions 274–279 (1940).Google Scholar

61 The need for such incorporation was vigorously emphasized by FitzGerald, C.J., in Rozenblatt v. Registrar of Lands, Haifa, 1947 Annual Digest and Reports of Public International Law Cases, No. 11. The learned judge stated (at 30) that “the overwhelming weight of judicial authority is to the effect that the terms of such covenants are not enforceable in the Municipal Courts, save in so far as they are embodied in the Orderin- Council or in the laws made by the Legislature of the territory in which the Municipal Courts function.”

62 1948 Appeal Cases 351 at 365-366; 42 AJ.I.L. 953 (1948).

63 In Sheriff es Shanti v. Attorney-General for Palestine, note 56 above, the Palestine Court of Appeal stated: “the juridical position of Palestine is that of a dependency of the Crown in which the Sovereign has full power to legislate by means of Orders in Council which are unchallengeable in the Courts even though their provisions go beyond the powers recognized by the Mandate.” See, too, Rozenblatt v. Registrar of Lands, Haifa, note 61 above.

64 Nate 56 above. In Ahmed Shauki el Kharbutli v. Minister of Defence, 1949 Annual Digest and Reports of Public International Law Cases, No. 19, the Supreme Court of Israel reiterated this view.

65 All Mandates contained a clause to this effect.

66 1 Cranch 137 (1803).

67 Op. cit. 404, 516-517.

68 Ibid. 404, 419-420.

69 Ibid. 404.

70 Ibid. 420.

71 22-23 Geo. V (1932), c. 4, Sec. 3. Sed contra, see Rex v. Offen, 1934 S.W.A. 73, in which Van den Heever, J., said (at 83) that Sec. 3 was declaratory of an already existing situation.

72 9 Edward VII (1909), c. 9. Italics added.

73 Above, p. 25.

74 Above, p. 27.

75 “The Legislative Competence of the Union Parliament,” 48 South African Law Journal 269 at 273-275 (1931).

76 1924 A.D. 101.

77 Per Innes, C.J., at 114, and De Villiers, J. A., at 119-120. See, too, Blom-Cooper, L. J., “Republic and Mandate,” 24 Modern Law Review 256 (1961).Google Scholar

78 Loc. cit. 274. My italics.

79 Cf. Wright, op. cit. 423.

80 When the Treaty of Peace and South West Africa Mandate Bill of 1919 was first read in the House of Assembly of the South African Parliament, Mr. Tielman Roos, who later became a judge of appeal, objected to the Bill on the ground that South Africa lacked the necessary competence to legislate extraterritorially. In overruling this objection the Speaker of the House held that the administration of South West Africa fell within the “peace, order and good government of the Union,” and warned that refusal to accept the Mandate might result in the territory passing into hostile foreign hands. This he considered would constitute a failure to carry out “the spirit, if not the letter, of the South Africa Act where the obligation is imposed upon this Parliament to pass laws for the peace, order and good government of the Union” (Cape Times, Sept. 11, 1919). Cf. Van den Heever, J., in Rex c. Often, note 71 above, at 79-80.

81 Van den Heever, J., in Rex v. Offen, loc. cit. 87. L. H. Wessels, however, considered the argument that Sec. 59 was the source of legislative competence to be of somewhat doubtful validity. Die Mandaat vir Suidwes-Afrika 103-104 (1938).

82 No. 49 of 1919. This Act was intended as a temporary measure only, but its operation was extended by Sec. 2 of the Treaties of Peace Act, No. 32 of 1921.

83 No. 42 of 1925. This Act was substantially amended by Act No. 23 of 1949, and in 1968 it was replaced by a consolidating measure, the South West Africa Constitution Act, No. 39 of 1968.

84 Sec. 25.

85 Sec. 26 (a) and (g).

86 Sec. 44 (1), which states: “Nothing in this Act contained shall be construed as in any way abolishing, diminishing or derogating from those full powers of administration and legislation over the territory as an integral portion of the Union which are conferred by the mandate… .”

87 Italics added. The Preamble also recognizes that “the Government of the Union is, under the said Mandate, to promote to the utmost the material and moral well-being and the social progress of the inhabitants of the territory.”

88 June 17, 1921. Government Notice No. 72.

89 Note 76 above, at 111. In the same judgment Innes, C. J., referred to the restrictions contained in the Mandate as being “incorporated in the Constitution of the new territory” (at 112).

90 Rex v. Christian, note 76 above, at 120, 122, 128, 132; Verein für Schutzgebietsanleihen E.V. v. Conradie N.O., 1937 A.D. 113 at 133, 144, 150; Winter v. Minister of Defence, 1940 A.D. 194 at 196-197; Faul v. S.A. Railways and Harbours, 1949 (1) South African Law Reports 630 (S.W.A.) at 632.

91 1940 A.D. 194.

92 Ibid, at 198.

93 J. F. Hewat in his chapter on South West Africa in H. J. May's The South African Constitution (1955), stated (at 403) that, as a result of this decision “it may be argued that legislation by the Union Parliament over the Territory is invalid to the extent to which it contravenes the provisions of the Mandate and the same argument applies to enactments by the Legislative Assembly of the Territory.”

94 In normal circumstances this trial would have been held in South West Africa, where the offenses were alleged to have been committed, but the trial was held in Pretoria before the Transvaal Provincial Division of the Supreme Court of South Africa by virtue of Sec. 4 of the Terrorism Act, which gives the Minister of Justice carte blanche to decide where the trial is to be held.

95 Secs. 108 and 118 entrench the equality of English and Afrikaans as official languages by providing for a special procedure for their repeal.

96 Above, p. 32. This notion of a composite grundnorm or fundamental law was propounded by the Rhodesian Appeal Court in its decision on the legality of the Smith regime, Madzimbamuto v. Lardner-Burke N.O., 1968 (2) South African Law Reports 284 (R.A.D.) at 334, 416.

97 Support for this last proposition was sought in Minister of the Interior v. Harris, 1952 (4) South African Law Reports 769 (A.D.), in which the Appeal Court set aside a statute aimed at depriving the Colored voters of their rights contained in the “entrenched clauses” under the 1909 South Africa Act by replacing the court charged with the protection of such rights with a “High Court of Parliament” (consisting of members of the legislature) as a final court of appeal. Centlivres, C.J., stated that: “To call the rights entrenched in the Constitution constitutional guarantees and at the same time to deny to the holders of those rights any remedy in law would be to reduce the safeguards enshrined in [the entrenched sections] to nothing. There can to my mind be no doubt that the authors of the Constitution intended that those rights should be enforceable by the Courts of Law. They could never have intended to confer a right without a remedy. The remedy is, indeed, part and parcel of the right. Ubi jus, ibi remedium” (at 780- 781; see further at 787, 790, 794). The High Court of the South Africa Republic adopted a similar approach in Brown v Leyds N.O., 1897 (4) Official Reports 17, in which it held that an amendment to the Grondwet (a rigid constitution) depriving the courts of the testing right was invalid.

98 State v. Tuhadeleni and others, 1967 (4) South African Law Reports 511 (T).

99 For the purpose of the judgment the court assumed, without deciding, that the Mandate was still in force. State v. Tuhadeleni, 1969 (1) ibid. 153 (A.D.) at 171.

100 South African law, like English law, does not accept treaties as part of municipal law unless they are incorporated by an Act of Parliament. Pan American World Airways Incorporated v. S.A. Fire and Accident Insurance Co. Ltd., 1965 (3) ibid. 150 (A.D.) at 161.

101 State v. Tuhadeleni, 1969 (1) ibid. 153 (A.D.) at 173-174. The court also declared that it was unlikely that the Mandate would have omitted to provide expressly for a municipal limitation if it had been intended.

102 Ibid, at 173.

103 Ibid, at 176.

104 “The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament … has, under the English constitution, the right to make or unmake any law whatever; and further that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.” A. V. Dicey, Introduction to the Study of the Law of the Constitution 39-40 (10th ed., 1959).

105 Foran account of this struggle see Denis V. Cowen, “Legislature and Judiciary,” 15 Modern Law Review 282 (1952), and 16 ibid. 273 (1953); B. Beinart, “Parliament and the Courts,” Butterworths South African Law Review 135 (1954); H. R. Hahlo and Ellison Kahn, South Africa: The Development of its Laws and Constitution 151-163 (1960).

106 Loc. cit. note 101, at 177.

107 Op. cit. 534; and “Some Recent Cases on the Status of Mandated Areas,” 20 A.J.I.L. 768 at 769 (1926).

108 .loc. cit. note 101, at 172. In adopting this approach the court relied on decisions in which it has been held that it is not the function of the courts to decide whether laws enacted by Parliament are “for the peace, order and good government of the Republic.” See, for example, Rex v. McChlery, 1912 A.D. 199.

109 In respect of the other provisions of the Mandate, viz., those relating to prohibition of the slave trade, of forced labor, of the supply of liquor to natives, of the establishment of military bases and to freedom of worship, the court stated its difficulties as follows: ‘In relation to these articles, legislation allowing what is to be prohibited or prohibiting what is to be allowed, could, if they should have the testing power, be declared invalid by the Courts. But if Parliament should refrain from passing legislation necessary to allow what is to be allowed, or to effect what is to be effected, or if it should pass inadequate legislation, the Courts would be powerless to order Parliament to legislate or to legislate to better purpose. At best the authority which Courts would be able to exercise would be imperfect an d could not ensure full or even substantial legislative compliance with these obligations by Parliament” (loc. cit. note 101, at 173).

110 [1962] I.C.J. Rep. 319 at 467.

111 [1966] I.C.J. Rep. 6 at 24, 26, 29 and 44; 61 A.J.I.L. 116 (1967). See, too, Dugard, 62 A.J.I.L. 81-82 (1968).

112 [1966] I.C.J. Rep. 6 at 435; 61 A.J.I.L. at 202-203 (1967).

113 [1898] 2 Q.B. 91 at 99.

114 Op. cit.

115 118 Cited in Wright, op. cit. 411. On appeal, the Privy Council confirmed the principle of the testing right, but indicated that it “cannot be the duty of the Court to examine … the legislative and administrative acts of the Administration, and to consider in every case whether they are in accordance with the view held by the Court as to the requirements of natural justice.” (Jerusalem-Jaffa District Governor v. Suleiman Murra, 1926 A.C. 321 at 328.) See, further, Wright, op. cit. 412. The decision of the Supreme Court of Israel in Yosipof v. Attorney-General, 1951 Int. Law Rep., No. 58, affords a good example of the way in which legislation was tested against the provisions of the Mandate.

116 Above, p. 33. In Tuhadeleni the court expressed no opinion on the question whether the courts of South West Africa are competent to test subordinate legislation against the provisions of the Mandate. This is hardly surprising, as South Africa's official attitude is that the Mandate lapsed on the dissolution of the League of Nations and the court could hardly have been expected to pronounce on so delicate a subject in an obiter dictum.

117 Note 22 above.

118 South West Africa, Second Phase, note 111 above, at 47. Cf. the statement by the South African Appeal Court in Tuhadeleni at 173 (cited above, p. 35).

119 For a survey of these views see Wright, op. cit. 70-72.

120 For a full discussion of the dispute over sovereignty in the mandates system, see Wright, op. cit. 319-344.

121 Above, p. 28. See Castles, op. cit., who states (at 321) that as a result of Fishwick v. Cleland “the national Parliament, under municipal law, may well be in a position to exercise powers which in substance could be said to amount to sovereign powers with respect to trust territories.”

122 Art. 9 of the Mandate for Palestine and Art. 6 of that for Syria and the Lebanon, 17 A.J.I.L. Supp. 166, 178 (1923). In Ahmed ShauM el Kharbutli v. Minister of Defence, 1949 Annual Digest and Reports of Public International Law Cases, No. 19, the Supreme Court of Israel indicated that Art. 9 only served to guarantee rights then in existence and not to create new rights. As it did not define the rights of the citizen, it was of little assistance to the protection of individual liberty.

123 Only eight of the eleven trusteeship agreements referred disputes relating to the interpretation or application of the provisions of the agreements to the International Court of Justice. R. N. Chowdhuri, International Mandates and Trusteeship Systems 168 (1955).

124 Art. 12. 61 Stat. 3301; T.I.A.S., No. 1665; 8 U.N. Treaty Series 189.

125 Thomas Buergenthal contends that “the failure of a State to enact the Convention into domestic law is a breach of its treaty obligations” (“The Effect of the European Convention on Human Rights on the Internal Law of Member States,” in The European Convention on Human Rights (British Institute of International and Comparative Law Series, No. 5, 1965) 79 at 83. Sed contra, Ralph Beddard, “The Status of the European Convention of Human Rights in Domestic Law,” 16 Int. and Comp. Law Q. 206 (1967). Cf. the Report by Max S0rensen in Human Rights in National and International Law 21 (edited by A. H. Robertson, 1968).

126 Here the problem is whether these rights become part of the ordinary law of a state or whether they become part of its fundamental law, in which case municipal legislation may be set aside if in conflict with such rights. Alfred Verdross rightly declares: “The provisions of the Convention can be given full effect only if a provision is included in the legislation of all Contracting States to the effect that the clauses of the Convention have become an integral part of municipal law and may be amended only if the Convention itself is amended or denounced.” (Human Rights in National and International Law 55.)

127 For studies of the extent to which municipal systems take cognizance of the rights contained in the European Convention, see Buergenthal, loc. cit.; H. Golsong, “The European Convention on Human Rights before Domestic Courts,” 38 Brit. Yr. Bk. Int. Law 445 (1962); Philippe Comte, “The Application of the European Convention on Human Rights in Municipal Law,” 4 Journal of the International Commission of Jurists 94 (1962).