1 Digested and excerpted by Wm. W. Bishop, Jr. The full majority opinion is given, aside from preliminary material which is summarized.

2 Consisting for this case of President Sir Percy Spender; Vice President Wellington Koo; Judges Winiarski, Spiropoulos, Fitzmaurice, Koretsky, Tanaka, Jessup, Morelli, Padilla Nervo, Forster and Gros; Judge ad hoo Sir Louis Mbanefo (named by Ethiopia and Liberia); and Judge ad hoo van Wyk (named by South Africa).

3 [1962] I.C.J. Rep. 319, excerpted and digested in 57 A.J.I.L. 640 (1963). The 1962 judgment was decided by a vote of 8 to 7; President Winiarski, Judges Basdevant, Spender, Fitzmaurice, Morelli, Spiropoulos, and Judge ad hoc van Wyk dissented. Judges Bustamante y Bivero and Jessup, and Judge ad hoc Mbanefo concurred in the decision but gave separate opinions.

4 The Court rejected a proposal by South Africa that the Court carry out an inspection in loco in South West Africa, and also visit South Africa, Ethiopia, Liberia, and one or two countries of the Court's choice south of the Sahara. The Court permitted witnesses to testify orally for South Africa, rejecting the Applicants’ proposal that the evidence should be embodied in depositions or written statements. As the Court said in its opinion, “ I n the view of the Court, the Statute and Bules of Court contemplated a right in a party to produce evidence by calling witnesses and experts, and it must be left to exercise the right as it saw fit, subject to the provisions of the Statute and Rules of Court.“ 116

5 Art. 37 of the Statute of the International Court of Justice reads: “Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.” 39 A.J.I.L. Supp. 223 (1945). Par. 2 of Art. 7 of the Mandate to South Africa for South West Africa provides: '’ 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.” 17 ibid. 175, 176 (1923).

6 Art. XXII of the League of Nations Covenant provides, in relevant part: “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 wellbeing 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. “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 Mandataries on behalf of the League. '’ 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… . “Other peoples, especially those of Central Africa, are at such a stage that the Mandatary must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience or religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slavetrade, 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 defense of territory, and will also secure equal opportunities for the trade and commerce of other Members of the League. “There are territories, such as Southwest 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 center of civilization, or their geographical contiguity to the territory of the Mandatary, and other circumstances, can be best administered under the laws of the Mandatary as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population. ” In every case of mandate, the Mandatary shall render to the Council an annual report in reference to the territory committed to its charge. “The degree of authority, control, or administration to be exercised by the Mandatary shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council. “A permanent Commission shall be constituted to receive and examine the annual reports of the Mandataries and to advise the Council on all matters relating to the observance of the mandates.” (13 A.J.I.L. Supp. 128, 137-138 (1919).)

7 President Spender declared: “The judgment of the Court … is that the Applicants cannot be considered to have established that they have any legal right or interest in the subject-matter of the present claims, and that accordingly their claims are rejected. Having so decided, the Court's task was completed. It was not necessary for it to determine whether the Applicants’ claims should or could be rejected on any other grounds.” He then discussed the proper limits of separate opinions, whether dissenting or concurring, stressing that “ i n principle such opinions should not purport to deal with matters that fall entirely outside the range of the Court's decision, or of the decision's motivation,” and that “there must exist a close direct link between individual opinions and the judgment of the Court.” He continued: “Without the judgment (or opinion) there would, of course, be no relationship and nothing of a judicial character that could be said by any judge. There is equally no relationship imparting judicial character to utterances about questions which the Court has not treated of at all.“

8 Inter alia, Judge ad hoc van Wyk declared: ‘'The universally accepted basic principle of interpretation, applicable in municipal law and international law alike, is that in the interpretation of all contracts, statutes and instruments one should endeavor to determine the true intention of their authors.“

9 Concerning “general principles of law,” he stated that this subsection of Art. 38 of the Statute of the Court “does not authorize the application of the laws of civilized nations, it limits the Court to the ‘general principles of law’ of these nations. It certainly does not mean that by legislating on particular domestic matters a majority of civilized nations could compel a minority to introduce similar legislation. If, for example, every State but one were to enact a law prohibiting the manufacture of atomic weapons, or enforcing the enfranchisement of women, the remaining State would not be obliged to bring its laws into conformity with the rest. In any event, the evidence of Professor Possony, Professor van den Haag and Professor Manning proves that such a rule is not universally observed, and that laws and official practices to the contrary exist in a large number of States, including the Applicants'. The fact that neither of the Applicant States observes this alleged norm or standards in their respective countries indeed reveals the artificiality of their cases.“

10 Here Judge Jessup quoted the separate opinion of Judge Sir Gerald Fitzmaurice in the Northern Cameroons Case, [1963] I.C.J. Rep. at 100: ” It is not the task of an international tribunal to apportion blame in vacuo, or to find States guilty of illegalities except as a function of, and relative to a decision that these have been the cause of the consequences complained of, for which the State concerned is accordingly internationally responsible; or except in relation to a still continuing legal situation in which a pronouncement that illegalities have occurred may be legally material and relevant.“ Judge Jessup added: “The words which I have emphasized describe the situation in the instant South West Africa case.“

11 The bracketed words were inserted in a revised submission of Oct. 22, as a result of a question posed to the Parties by Judge Sir Percy Spender. Cf. the 1962 Judgment at p. 330. [Judge Jessup's footnote, renumbered.]

12 One recalls the famous apothegm of Chief Justice Marshall in MoCvXloch v. Maryland, (4 Wheat. 407): “We must never forget that it is a constitution we are expounding.“ [Judge Jessup's footnote, renumbered.]

13 The case of Ghana v. Portugal was described; since then the I.L.O. has had a further judicial inquiry and decision in the case of Portugal v. Liberia, which also involved the question of a contract labour convention; see International Labour Office, Official Bulletin, Vol. XLVI, No. 2, April 1963. [Judge Jessup's footnote, renumbered.]

14 Here Judge Jessup discussed the case on Interpretation of the Statute of the Memel Territory, P.C.I.J., Series A/B, No. 47, involving Art. 17 of the Memel Convention, in which the parties declared “that any Member of the Council of the League of Nations shall be entitled to draw the attention of the Council to any infraction of the provisions of the present Convention,” and provided for reference of disputes to the Permanent Court of International Justice. When lack of unanimity in the Council prevented asking for an advisory opinion, Great Britain, France, Italy and Japan successfully instituted proceedings against Lithuania, Lithuania's jurisdictional objection being rejected. Judge Jessup pointed out that “Their standing derived from the adjudication clause, not from some other conferment of a substantive right. This Court has held that the Mandate is a treaty and as a matter of historical fact, the Principal Powers were just as much the authors of the Mandate for South West Africa as they were of the Statute of the Memel Territory which was annexed to the Treaty of 8 May 1924.“

15 Here Judge Jessup referred to the dissenting opinion of Judge Huber in the Minority Schools in Upper Silesia, P.C.I.J. Series A, No. 15, at p. 50 (1928). He also discussed the Advisory Opinion on Reservations to the Genocide Convention, [1951] I.C.J. Rep. at 23, to show “the same general appreciation of a right to turn to the International Court of Justice for interpretation, application or fulfilment of a treaty having a broad humanitarian interest.“

16 Discussing briefly the Wimbledon case, P.C.I.J., Series A, No. 1, p. 7. He further pointed out that “Similar applications to the Court might be made by any of the large number of States parties to the Statute on the Régime of Navigable Waterways of International Concern annexed to the Barcelona Convention of 1921.“

17 Judge Jessup indicated that this was the title of two articles by Prof. L. L. Jaffe in 74 Harvard Law Rev. 1265 (1961), and 75 ibid. 255 (1961).

18 citing Ganocide, The Judicial Control of Public Authorities in England and in Italy (1954).

19 The unanimity rule was not always controlling. [Judge Jessup's footnote, renumbered.]

20 Here he said: “Details of these steps are given in my separate opinion of 1962 at pp. 387-401; some parts of them are described in the present opinion.“

21 See F.A.O. constitution of 1945, as amended 1957, Art. 17; Peaslee, International Governmental Organisations, Constitutional Documents, Vol. I, pp. 664, 672; Statute of the International Atomic Energy Agency of 1956, Art. 17, ibid., Vol. II, pp. 926, 938; U.N.E.S.C.O. constitution of 1945, Article 14 (providing also an alternate form for judicial settlement if the General Conference so determines), ibid., pp. 1802, 1809; W.H.O. constitution of 1948, as amended 1959, Art. 75, ibid., pp. 1881, 1891. [Judge Jessup's footnote, renumbered.]

22 Here Judge Jessup quoted from, and discussed, a U.N. Secretariat memorandum on the question of the status of the League of Nations minorities system, E/CN.4/367 (April 7, 1950), and ibid. Add. 1 (March 27, 1951).

23 International tribunals have long been accustomed, in judging claims cases, to apply an international standard as the test of a State's liability for injuries to aliens. Counsel for both Parties treated this point in a most unsatisfactory way but it is not necessary to elaborate here. [Judge Jessup's footnote, renumbered.]

24 See in general, Dillard, “Some Aspects of Law and Diplomacy”, 91 Recueil des cows, 1957, p. 449. [Judge Jessup's footnote, renumbered.]