* Advisory Opinion of July 11th, 1950: I.C.J. Reports 1950, pp. 128–145; 146–192.

^{page 236 note 1} Connected with this question is the problem of the nationality of the inhabitants of a mandated territory.

^{page 236 note 2} I simplify the position here by ignoring the complications caused by the fact that the United States did not ratify the Peace Treaties.

^{page 237 note 1} This idea was expressed during the proceedings before the International Court in the following words: “that the Powers concerned became functi officio after the allocation and confirmation of the Mandates” (p. 157).

^{page 237 note 2} What in fact happened was that, since it had proved impossible for the terms of the Mandates to be determined in time for their insertion in the Peace Treaty of Versailles, the Supreme Council, on 06 28th, 1919Google Scholar, the date of the signature of that Treaty, directed a Commission composed of representatives of France, Italy, Japan, the United Kingdom and the United States, to draft such terms. It was not until December 1920 that these drafts were presented to the Supreme Council. As a result, the States concerned have governed the territories, from January 20th, 1920 (the day when the Peace Treaty became operative) until December 17th, 1920, without a definite title and only as prospective Mandatories.

^{page 237 note 3} The formula adopted by the Council ran as follows:

“The Council of the League of Nations:.…;

Whereas by the aforementioned 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: …”

^{page 237 note 4} In his “separate opinion” Sir Arnold McNair tries to clarify this point by saying that “the effect of (the first) paragraph (of Article 7) is that thereby the Members of the League, as the States interested in the Mandate, empowered the Council of the League on their behalf to consent to any modification of the Mandate which the Council might consider to be appropriate” (p. 162). Without any apparent logical sequence Sir Arnold continues: “The party who was expected to bring about any modifications which the passage of years might show to be necessary was the Mandatory.…”.

^{page 238 note 1} As a corollary an enquiry into the nationality of the inhabitants of a mandated territory is equally useless. Where there is no territorial sovereignty there can be no nationality in the usual sense either.

^{page 239 note 1} Mandate instrument of December 17th, 1920:

“The Council of the League of Nations:

Whereas, By Article 119 of the treaty of peace with Germany signed at Versailles on June 28, 1919, Germany renounced in favour of the Principal Allied and Associated Powers all her rights over her overseas possessions, including therein German Southwest 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 aforementioned, and have proposed that the mandate should be formulated in the following terms;.…

Confirming the said mandate, defines its terms as follows:.…”

^{page 239 note 2} Similar interim situations have often occurred. Comp. the precedents of the cession of the isle of Crete by Turkey to the Allied Powers for the final decision of its status by Article 4 of the Peace Treaty of London of May 30th, 1913, and the cession of the territories of Memel and Danzig by Germany to the Principal Allied and Associated Powers under Articles 99 and 100 of the Versailles Treaty.

^{page 240 note 1} It goes without saying that the Union has no jus disponendi over the territory, as was expressly stated by Judge Read in his separate opinion (p. 168): “The Mandatory Power, as such, was not the sovereign of the territory. It had no right of disposition.…” This statement necessarily implies not only that the Union has no right to transfer the territory to any other State, but also that it cannot propria auctoritate enter into agreements altering the frontiers of the Mandated territory with neighbouring States, even though the Mandatory's authority is not exclusively in the nature of an exercise of authority over a population, but is to a certain extent also territorial in character.—According to McNair, Judge “Sovereignty over a Mandated territory is in abeyance” (p. 150)Google Scholar.—The South African Judge of Appeal J. de Villiers expressed himself in the following terms borrowed from private law: “South-West Africa is transferred to the people of the Union not by way of absolute property, but in the same way as a trustee is in possession of the property of the cestui que trust or a guardian of the property of his ward” (quoted on p. 150).—According to Read, Judge “The Union of South Africa exercised most of the powers which are inherent in sovereignty, but the residual elements were neither exercised nor possessed by the Union” (p. 164).Google Scholar

^{page 240 note 2} Comp. for an analysis of the ten different theories of the location of sovereignty offered by jurists: Wright, Quincy, “Mandates under the League of Nations”, pp. 319–339.Google Scholar

^{page 241 note 1} The Canadian Judge Read, in his separate opinion (p. 167 sqq.) even entered into a discussion of the question “raised by eminent jurists” whether the Assembly was competent to liquidate the League, but fortunately came to an affirmative answer, on two grounds, first that, since mortality is an essential attribute of human organisation and in international law no supervised liquidation by a supranational authority is possible, a legal power of liquidation arises by necessary implication, to be exercised by the Assembly under Article 3, § 3, of the Covenant, and second, that any system of legal relationships can be brought to an end by the consent of all persons having legal rights and interests which might be affected by their termination.

^{page 241 note 2} Apart from a distinction between substantive obligations and those more procedural connected with the supervision of the League, the obligations of the Mandatory could also be classed in the three groups of obligations designed to secure and protect the well-being of the inhabitants, those which were due to, and enured to, the benefit of the Members of the League, and those which were concerned with the supervision and enforcement of the first and the second group (Read, Judge, p. 164sqq.).Google Scholar

^{page 243 note 1} The only allusion to this occurrence which I found mentioned in the discussions was a passage quoted by McNair, Judge (on p. 151)Google Scholar from a judgment of the Supreme Court of South Africa in Rex v. Christian where the Honourable J. de Villiers, Judge of Appeal, after pronouncing that in his opinion the legal principles of a mandate in municipal law, in so far as they were reasonably applicable to the analogous novel international institution, should loyally be applied, posited the problem in the following words: “No doubt most difficult questions will arise. In municipal law a principal can, e.g., revoke his authority at his own mere pleasure. Such is the rule. Could this be done in the case of South-West Africa where the Union Government, if there is a principal at all, must be construed as a joint principal together with all the other high contracting parties?” The whole formulation of the question in this quotation seems to me to prove convincingly how impossible is the application of private law to such institutions as an international Mandate.

^{page 243 note 2} The Court cited as such the Resolution of April 18th, 1946, points 3 and 4, quoted above, and a number of official declarations in the same sense made by the Union Government in 1946 and 1947.

^{page 244 note 1} Judge McNair rightly observed that “this conclusion left it to be inferred that the Union Government would thereupon be free to regulate the future status of South-West Africa as a domestic matter” (p. 146), a conclusion which he could not accept. This argument advanced by the Union amounted indeed to another obvious abuse of the concept of “domestic jurisdiction”.

^{page 244 note 2} What about the existing obligations vis-à-vis the other Members of the international Community? There are here some obvious difficulties. A certain doubt was expressed by McNair, Judge: “The obligations owed to former Members of the League, at any rate those who were Members at the date of its dissolution, subsist” (p. 158)Google Scholar. According to Judge Read: “Each Member (of the League), at the time of dissolution, had substantive legal rights against the Union in respect of the Mandate. A substantial number of Members of the League were not signatories of the Charter, and have not since been admitted to membership in the United Nations. It is a principle of international law that the parties to a multilateral treaty, regardless of their number or importance, cannot prejudice the legal rights of other States.… Consequently, while.… the Organisation of the United Nations had come into being before the dissolution of the League, the legal rights of many States, which were not Members of the new Organisation.… remained in full force and vigor” (p. 165).

^{page 246 note 1} According to Judge Read with one important exception, viz. that “in the case of Members (of the League) that did not become parties to the Statute of the (International) Court (of Justice), their right to implead the Union before the Permanent Court lapsed” (p. 169).

^{page 248 note 1} This was obviously the opinion of Judge Read, who (p. 172) stated that “the Mandate is founded upon a treaty and an agreement (and that) the parties are the League and the Union of South-Africa” and (p. 173) accordingly mentions “the absence of an “arrangement agreed between” the United Nations and the Union”.

^{page 249 note 1} The majority in this respect consisted of the President, Professor Basdevant, and the Judges Hackworth, Winiarsky, McNair, Klaestad, Read, Hsu Mo and Azevedo. The minority consisted of the Vice-President Guerrero and the Judges Alvarez, Zoričić, de Visscher, Badawi and Krylov, evidently under the leadership of the Belgian Judge, whose opinion was explicitly embraced by other Members of the Court.

^{page 249 note 2} This dissensus can be traced back to 1919 when the insistence of General Smuts (the intellectual father of the Mandate system) upon the annexation of German South-West Africa to the Union of South Africa could only be countered by means of the compromise of creating the particular type of C-Mandate, nearest to incorporation.

^{page 249 note 3} How the Court could possibly find (pp. 139–140) that “there is nothing (my italics, V.) to suggest that (the provision of Article 80, paragraph 2) was intended as an exception to the principle (of the voluntariness of the resolution of a mandatory Power to place a mandated area under the Trusteeship system) derived from Articles 75, 77 and 79”, is quite ununderstandable to me, the more so because at another stage (p. 141) the Court considers that the normal way of modifying the international status of the Territory is to place it under the Trusteeship system. Article 80, § 2 reads as follows: “Paragraph 1 of this Article” (professing the provisional maintenance in force of the existing legal status quo in regard to mandated areas) “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.” Was there really no suggestion in this provision? What then was its purpose?

^{page 252 note 1} Yet another theory on the international status of South-West Africa has recently been developed by a South-African student in a thesis submitted to the Faculty of Law of the University of Leiden in 1953, H. J. M. van Rensburg. See under the Book Reviews in this issue, p. 324.

* Judgment of December 18th, 1951: I.C.J. Reports 1951, pp. 116–143, 144–206. Comp. the map reproduced on pp. 256–257.

^{page 253 note 1} Had the suggestion of the Preparatory Committee of the 1930 Conference for the Codification of International Law, as formulated in their “base of discussion” No. 5 been adopted, any maritime State would have been empowered to exercise the control necessary to prevent the infringement of its Customs or sanitary regulations or interference with its security by foreign ships over a distance of nine additional miles. (Doc. C.74, M.39, 1929 V, p. 34.)

^{page 253 note 2} It is, in my opinion, to be regretted that in legal terminology the ambiguous term “territorial waters” has to a great extent supplanted the unequivocal term “territorial sea” or “marginal sea (belt)”. In the case of the Norwegian skjœrgaard in particular a tripartition of the water area into internal or inland waters (landward from the closing lines of the fjords), territorial waters (between the island fringe and the mainland) and territorial sea (seaward from the baseline), would have been recommendable.

^{page 254 note 1} These points were worded as follows:

“(1) That Norway is entitled to a belt of territorial waters of fixed breadth— the breadth cannot, as a maximum, exceed 4 sea miles.

(2) That, in consequence, the outer limit of Norway's territorial waters must never be more than 4 sea miles from some point on the base-line”.

^{page 254 note 2} According to McNair, Judge (p. 159)Google Scholar the United Kingdom had made only the ad hoc concession “that for the purposes of this case Norway is entitled to a four-mile limit”. What reasonable construction can be put on this phrase?

^{page 255 note 1} The British, French and German Prize Court decisions are reviewed in my Le Droit des Prises de la Grande Guerre (1924), p. 271Google Scholarsqq. Comp. on the problem also van der Lee, J. J., Divergencies in international law with special reference to the law of territorial waters (thesis Cambridge, 1951).Google Scholar

^{page 255 note 2} One cannot, however, be quite sure of that since there is one passage in the Judgement which seems to suggest that the Court has in fact accepted the four-mile limit as permissible. Comp. note 2 on page 259.

^{page 255 note 3} No one denies that a State is entitled to a marginal belt of three miles. Does this mean that it is also obligated to accept this breadth as a minimum, or is it permissible to reduce this limit by a unilateral decision? This question may be without practical importance, but it is of considerable theoretical interest for a correct analysis of the legal situation with regard to the territorial sea.

The British Judge McNair mentions this point in the following terms (p. 160): “International law does not say to a State: ‘You are entitled to claim territorial waters if you want them.’ No maritime State can refuse them.… The possession of (maritime) territory is not optional, not dependent upon the will of the State, but compulsory.”

^{page 258 note 1} The Court declined the suggestion made by the British Agent that it should deliver a judgement which for the moment would confine itself to adjudicating on the theoretical definitions, principles or rules formulated by him. The Norwegian Agent had also objected to that.

^{page 259 note 1} East of the North Gape this “rock rampart” ends, but the coast-line continues to be broken by large and deeply indented fjords.

^{page 259 note 2} The British Agent had suggested that this rule should only apply on the condition that the elevations concerned are located within a distance of four sea miles from the coast or from otherwise permanently dry land. Since it appeared, however, that no such elevations were in fact further from permanently dry land than four miles at the utmost, the Court did not deem it necessary to deal with this controversy. But at this point a subtle question arises: has not the Court, in arguing thus, implicitly acknowledged Norway's claim to a four-mile limit as valid under international law? For otherwise it ought, strictly speaking, to have enquired into the exact location of the elevations —were they between four and three, or within three miles from permanently dry land?—and should have entered into the question raised by the British Agent, if they indeed appeared to lie at a distance of more than three miles from permanently dry land. For in that case the Court could only have ignored the British submission if it adopted the Norwegian claim to the four-mile limit.

The same question was already discussed by the British Prize Court in 1919 in re Düsseldorf (British and Colonial Prize Cases. Reports of prize cases etc., Ill, p. 466 sqq., Lloyd's Reports of Prize Cases etc., IX, p. 1 sqq.).

^{page 260 note 1} It is to be understood that this finding is only concerned with the tenmile rule conceived as an assumed maximum permissible length of the closing line not to be exceeded. So conceived the doctrine is rejected by the Court: even bays with a much wider entrance may be held to form part of the internal waters of a State. There is hardly any more discussion on the proposition that the traditional three-mile limit of the territorial sea may in the case of bays be reckoned from a closing line of ten in stead of six miles length. Although in 1930 there were still some States that adhered to a six-mile limit even across bays, Judge Read rightly stated (p. 188) that at the Hague Conference of 1930 there was a readiness on the part of most States to recognize the right of the coastal State to claim as internal waters bays which penetrate the coast notwithstanding that the distance between the headlands is greater than double the breadth of the marginal belt, up to the generally accepted width of ten miles. In the case under consideration the closing lines or base-lines claimed by Norway extended even to a length of 44 nautical miles.

^{page 260 note 2} One will soon realise this when simply trying to close the mouth of the Wester-Scheldt by a, say, 10-mile line in order to be able to determine the exact base-line from which to measure the extent of the marginal sea, necessary in order to locate accurately the trace of the Wielingen pass through the contiguous territorial waters of Belgium and the Netherlands. One can proceed, e.g. by trying to select the two most clearly protruding points on either shore and connecting them by a straight line (which will then exceed ten miles) and by then retracting it parallel to its original direction, until it decreases to ten miles. But one can also begin by dividing the water area of the river mouth by a precise median line following all its sinuosities, and then draw perpendicular lines on the axis thus obtained landward, until a point is reached where such perpendicular lines no longer exceed the length of ten miles. The result given by using the two methods will be quite different.

^{page 261 note 1} This was emphatically denied by Judge McNair who (on p. 169) referred to the coast of Canada, the North-West coast of Scotland with the “island fringe” of the Outer Hebrides and the West coast of Northern Ireland, all comparable to that of Norway. Charts were also produced of Iceland, Queensland and the Adriatic coast of Yugoslavia.

^{page 262 note 1} On this point Judge McNair disagreed with the majority in that, according to him, not only had the United Kingdom always objected to the far-reaching claims of Norway, but had also remained unaware of any “traditional system” such as was now being advocated by the Norwegian Government.

^{page 263 note 1} The Court mentioned yet another deep indentation, on the north-easternmost part of the Norwegian coast, near the Russian frontier, viz. the Varanger-fjord (p. 138). Here an incident had arisen in 1911 (re the Lord Roberts), but this was unconnected with the position of base-lines, and related chiefly to Norway's claim to the four-mile limit. Moreover in this sector the British Government no longer contested Norway's claim to territorial sovereignty.

^{page 263 note 2} The Court did not allude to its findings on the Corfu Channel. It is, therefore, worth recalling that in that case the Court held that in time of peace States have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorisation of a coastal State, provided that the passage is innocent, and that—as a rule—there is no right for a coastal State to prohibit such passage; and further that the test of whether a strait belongs to the class of international highways through which a right of passage exists lies not so much in the volume of traffic passing through it or in its greater or lesser importance for international navigation but rather in the fact of its geographical situation as connecting two parts of the high seas and its usage for international navigation, even if only as an alternative and not as the only route between two such parts. Apart from the largely artificial character of the Indreleia as a navigational route, it must be borne in mind that it also differs from the Corfu Channel in that the latter constitutes a frontier between two States.

^{page 264 note 1} In another passage on the same page the Court had stated that this criterion “is devoid of any mathematical precision”.

^{page 265 note 1} This remark of the Court may serve to remind the reader of the crucial question of inter-temporal law, or temporal conflict of laws, treated by Professor Max Huber in his arbitral award of 1926 concerning the Palmas or Miangas island disputed between the United States and the Netherlands: which of subsequent rules or systems of law must be held to govern a dispute arising in later periods? This problem of inter-temporal law has, it seems, played no important part in the Fisheries case, but it was bound to come to the fore in the Minquiers and Ecrehos case (see infra, sub C).

^{page 265 note 2} The limited space available prevents me from reproducing even in general outline the elaborate and scholarly argument of the British Judge which undoubtedly deserves close attention from all students of the law of Nations.

^{page 266 note 1} According to the different authors concerned, this concept of “general principles of law” is considered equivalent either to eternal precepts of natural law, or to general principles of justice variable in the course of time with social development, or to such rules of conduct as are fundamental for any sound functioning of human society; or their listing is intended to grant the Court freedom to fill up gaps in positive international law by the creation of new judge-made law, or to allow it the use of argument from situations ruled by positive law to unregulated situations by way of analogy; or it is deemed to impose upon the Court the duty to draw from the common stock of principles underlying all national systems of civil, criminal or public law.

^{page 267 note 1} “It now happens with greater frequency than formerly that, on a given topic, no applicable precepts are to be found, or that those which do exist present lacunae or appear to be obsolete, that is to say, they no longer correspond to the new conditions of the life of peoples. In all such cases, the Court must develop the law of nations, that is to say, it must remedy its shortcomings, adapt existing principles to these new conditions and even, if no principles exist, create principles in conformity with such conditions.… The adaptation of the law of nations to the new conditions of international life, which is to-day necessary, is something quite different from the “restatement” advocated by Anglo-Saxon jurists as a means of ending the crisis in international law.… The principles must be adapted to the new conditions of international life; indeed, if no principles exist covering a given question, principles must be created to conform to those conditions” (pp. 147–148).

^{page 267 note 2} In his own words (Cours de droit international public, vol. I, p. 117)Google Scholar: “L'article 38 ne parle pas de l'analogie; mais.… (la disposition sub 3°).… démontre avant tout, que l'on a voulu pousser jusqu'à la dernière limite la productivité, si nous pouvons ainsi dire, des sources; et l'analogie en est l'instrument premier et fondamental.”