Zwei Gutachten des Internationalen Gerichtshofes zur Interpretation des Gutachtens vom 11.Juli 1950 über Südwestafrika vom 7. Juni 1955 und vom I. Juni 1956Source: Archiv des Völkerrechts, 6. Bd., 2. H. (März 1957), pp. 243-249Published by: Mohr Siebeck GmbH & Co. KGStable URL: http://www.jstor.org/stable/40797180 .

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ENTSCHEIDUNGEN

Zwei Gutachten des Internationalen Gerichtshofes zur Interpretation des Gutachtens vom 11. Juli 1950 über Südwestafrika

i. Gutachten über Beschlüsse der Generalversammlung der Vereinten Nationen zu Fragen der Handhabung des Treuhandsystems

vom 7. Juni 1955 *)

Der Gerichtshof stellt fest, daß es im Einklang mit seinem Gutachten vom n. Juli 1950**) stehe, wenn die Generalversammlung Fragen, welche Berichte und Petitionen bezüglich des Gebiets von Südwestafrika betreffen, als wichtige Fragen im Sinne des

Art. 18 Abs. 2 der Satzung der Vereinten Nationen erachtet. On June 7th, 1955, the International Court of Justice delivered its Advisory Opinion

in the matter of the voting procedure to be followed by the General Assembly of the United Nations in making decisions on questions relating to reports and petitions concerning the Territory of South- West Africa.

The Request for Advisory Opinion had been submitted to the Court by the General Assembly, which, on November 23rd, 1954, adopted the following resolution for this purpose :

"The General Assembly, Having accepted, by resolution 449 A (V) of 13 December 1950, the Advisory Opinion of the International Court of Justice of 1 1 July 1950 with respect to South- West Africa,

Having regard, in particular, to the Court's opinion on the general question, namely, that * South- West Africa is a Territory under the international Mandate

*) Pressemitteilung der Gerichtsschreiberei des Internationalen Gerichtshofes (ver- bindlicher Gutachtentext: englisch). - Die Generalversammlung der Vereinten Na- tionen hat am 3. Dezember 1955 die folgende Entschließung angenommen:

"The General Assembly, Having requested, in its resolution 904 (IX) of 23 November 1954, an advisory

opinion from the International Court of Justice regarding the voting procedure to be followed by the General Assembly on questions relating to reports and petitions concerning the Territory of South- West Africa,

Having noted that, in its advisory opinion of 7 June 1955, the Court was un- animously of the opinion that the rule that decisions of the General Assembly on questions relating to reports and petitions concerning the Territory of South- West Africa should be regarded as important questions within the meaning of Article 18, paragraph 2, of the Charter was a correct interpretation of the advisory opinion of the Court of 11 July 1950,

Accepts and endorses the advisory opinion of 7 June 1955 of the International Court of Justice on voting procedure on questions relating to reports and petitions concerning the Territory of South- West Africa." **) Auszugsweise Wiedergabe in Archiv des Völkerrechts Bd. III (1951/52) S. 104.

16*

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244 Entscheidungen

assumed by the Union of South Africa on 17 December 1920,' and to the Court's opinion on question (a), namely, 'that the Union of South Africa continues to have the international obligations stated in Article 22 of the Covenant of the League of Nations and in the Mandate for South- West Africa as well as the obligation to transmit petitions from the inhabitants of that Territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and the petitions are to be submitted, and the reference to the Permanent Court of International Justice to be replaced by a reference to the International Court of Justice, in accordance with Article 7 of the Mandate and Article 37 of the Statute of the Court,'

Having expressed, in resolution 749 A (VIII) of 28 November 1953, its opinion 'that without United Nations supervision the inhabitants of the Territory are deprived of the international supervision envisaged by the Covenant of the League of Nations' and its belief 'that it would not fulfil its obligation towards the inhabitants of South- West Africa if it were not to assume the supervisory responsibilities with regard to the Territory of South- West Africa which were formerly exercised by the League of Nations,'

Having regard to the opinion of the International Court of Justice that 'the degree of supervision to be exercised by the General Assembly should not . . . exceed that which applied under the Mandates System, and should conform as far as possible to the procedure followed in this respect by the Council of the League of Nations' and that 'these observations are particularly applicable to annual reports and petitions/

Having adopted, by resolution 844 (IX) of 11 October 1954, a special rule F on the voting procedure to be followed by the General Assembly in taking decisions on questions relating to reports and petitions concerning the Territory of South- West Africa,

Having adopted this rule in a desire 'to apply, as far as possible, and pending the conclusion of an agreement between the United Nations and the Union of South Africa, the procedure followed in that respect by the Council of the League of Nations,'

Considering that some elucidation of the Advisory Opinion is desirable, Requests the International Court of Justice to give an advisory opinion on the

following questions: (a) Is the following rule on the voting procedure to be followed by the General

Assembly a correct interpretation of the Advisory Opinion of the International Court of Justice of 11 July 1950:

'Decisions of the General Assembly on questions relating to reports and petitions concerning the Territory of South- West Africa shall be regarded as important questions within the meaning of Article 18, paragraph 2, of the Charter of the United Nations?'

(b) If this interpretation of the Advisory Opinion of the Court is not correct, what voting procedure should be followed by the General Assembly in taking decisions on questions relating to reports and petitions concerning the Territory of South-West Africa?" On receipt of the Request, the Court had given an opportunity to the Members

of the United Nations to submit their views. The Governments of the United States of America, the Republic of Poland and India submitted written statements. The Governments of Israel and the Republic of China, while not submitting written statements, referred to the views expressed by their representatives in the General Assembly. The Government of Yugoslavia indicated that it was of the opinion that the question had been dealt with exhaustively by the Advisory Opinion of 1950. Lastly, the Secretary-General of the United Nations transmitted to the Court the

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Entscheidungen 245

documents likely to throw light upon the question and an introductory note com- menting on these documents. There were no oral proceedings.

In its Opinion, the Court briefly stated the facts leading up to the Request for Opinion. In its Advisory Opinion of 1950, it had said that the Union of South Africa continued to have the international obligations binding upon it, in respect of the Territory of South- West Africa, in accordance with the Covenant of the League of Nations and the Mandate for the Territory, and that the supervisory functions were to be exercised by the United Nations. That Opinion was accepted the same year by the General Assembly as a basis for supervision over the administration of the Terri- tory. Negotiations ensued between the United Nations and the Union of South Africa, but these were unsuccessful. In 1954, a Committee of the General Assembly drafted sets of rules of which one, Rule F (set out under (a) of the resolution of November 23rd, 1954, above), related to the way in which decisions of the General Assembly with regard to reports and petitions were to be made. It was with regard to this rule that the Court's opinion had been sought. The Assembly was primarily concerned with the question whether Rule F corresponds to a correct interpretation of the follow- ing passage from the Opinion of 1950:

"The degree of supervision to be exercised by the General Assembly should not therefore exceed that which applied under the Mandates System, and should con- form as far as possible to the procedure followed in this respect by the Council of the League of Nations." Having thus defined the question put to it, the Court considered whether the first

part of this sentence ("The degree of supervision to be exercised by the General Assembly should not therefore exceed that which applied under the Mandates System") could be correctly interpreted as extending to the voting system to be follow- ed by the General Assembly when making decisions with regard to reports and petitions concerning the Territory of South- West Africa. It came to the conclusion that the words "the degree of supervision" related to the extent of the substantive supervision and not to the manner in which the collective will of the General As- sembly was expressed; they did not relate to procedural matters. The first part of the sentence meant that the General Assembly should not adopt such methods of super- vision or impose such conditions on the Mandatory as were inconsistent with the terms of the Mandate or with a proper degree of supervision measured by the standard and the methods applied by the Council of the League of Nations. Consequently, Rule F could not be regarded as relevant to the "degree of supervision," and it followed that it could not be considered as instituting a greater degree of supervision than that which was envisaged by the Court in its Opinion of 1950.

This interpretation was confirmed by an examination of the circumstances which led the Court to use the words in question. In its Opinion of 1950, it was necessary for it to say what were the obligations binding upon the Union of South Africa. It found that the obligations relating to the Administration of the Territory, and cor- responding to the sacred trust of civilization referred to in Article 22 of the Covenant, did not lapse on the dissolution of the League of Nations. As to the obligations relating to supervision of the administration, the Court, taking into consideration the provi- sions of the Charter, found that supervision should henceforth be exercised by the General Assembly, but that it should not exceed that which applied under the Manda- tes System. But the Court had not then had to deal with the system of voting. In recognizing that the competence of the General Assembly to exercise its supervisory functions was based on the Charter, it implicitly recognized that the decisions of that organ in this connection must be taken in accordance with the relevant provisions of the Charter, that is, the provisions of Article 18. If the Court had intended that the limits to the degree of supervision should be understood to include the mainte-

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246 Entscheidungen

nance of the system of voting followed by the Council of the League of Nations, it would have been contradicting itself and running counter to the provisions of the Charter. Accordingly, the Court found that the first part of the sentence should be interpreted as relating to substantive matters and not to the system of voting which was applicable in the time of the League of Nations.

The Court then proceeded to consider the second part of the sentence, according to which the degree of supervision "should conform as far as possible to the procedure followed in this respect by the Council of the League of Nations" : did Rule F accord with this requirement? Whereas the first part of the sentence related to substantive matters, the^second part was procedural in character and the word "procedure" there used referred to those procedural steps whereby supervision was to be effected. But the voting system of the General Assembly was not in contemplation when the Court used these words. Indeed, the question of conformity of the voting system of the General Assembly with that of the Council of the League of Nations presented in- surmountable difficulties of a juridical nature, for the voting system of an organ was one of its distinguishing features. It was related to its composition and functions and could not be transplanted upon another organ without disregarding one of the cha- racteristics of the latter.

There was therefore no incompatibility between Rule F and the Opinion of 1950. It would, however, seem clear that, both in adopting Rule F and in referring the question to the Court, the General Assembly was proceeding on the assumption that the Court had used the word "procedure" as including the voting system. Even so, the conclusion would be the same. In the Opinion of 1950, the Court had said that the General Assembly derived its competence to exercise its supervisory functions from the Charter; it was therefore within the framework of the Charter that it should find the rules governing the making of its decisions in connection with those functions. It would be legally impossible for it, on the one hand, to rely on the Charter in receiving and examining reports and petitions concerning South- West Africa and, on the other hand, to reach decisions relating to these reports and petitions in accord- ance with a voting system entirely alien to that prescribed by the Charter.

As to the expression "as far as possible", this was designed to allow for adjustments necessitated by the fact that the Council of the League of Nations had been governed by an instrument different from that which governed the General Assembly. For the latter, in the matter of determining how to make decisions relating to reports and petitions, there was but one course open. It had before it Article 18 of the Charter, which prescribed the methods for taking decisions. The Opinion of 1950 left the General Assembly with Article 18 of the Charter as the sole legal basis for the voting system applicable. It was on that basis that Rule F was adopted. In adopting that rule, it acted within the bounds of legal possibility.

Rule F therefore corresponded to a correct interpretation of the Opinion of I95°- In its Opinion the Court replied in the affirmative to the first question put: the rule

set out in (a) of the resolution was a correct interpretation of the Opinion given by the Court in 1950. This reply made it unnecessary for the Court to consider the second question.

The Opinion of the Court was unanimous. Three Members of the Court - Judges Basdevant, Klaestad and Lauterpacht - while accepting the operative clause of the Opinion, reached their conclusions on different grounds and appended to the Opinion statements of their separate opinions. Another Member of the Court, Judge Kojev- nikov, who also accepted the operative clause of the Opinion, appended thereto a declaration.

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Entscheidungen 247

2. Gutachten über die Anhörung von Petenten durch den Ausschuß für Südwestafrika

vom 1. Juni 1956*)

Der Gerichtshof stellt fest, daß es mit seinem Gutachten vom 11. Juli 1950 i™ Einklang stehe, wenn der von der Generalversammlung der Vereinten Nationen geschaffene Aus- schuß für Südwestafrika kraft Ermächtigung durch die Generalversammlung Per- sonen, die sich mit Petitionen in Angelegenheiten des Gebietes von Südwestafrika an die Kommission gewandt haben, eine persönliche Anhörung gewähre. Der Ausspruch in dem Gutachten vom 11. Juli 1950, die Aufsicht durch die Generalversammlung dürfe nicht das unter dem Mandatssystem des Völkerbundes zulässige Maß überschreiten, stehe dem nicht entgegen. Wenn auch unter dem Mandatssystem eine persönliche An- hörung von Petenten in Angelegenheiten der Mandatsgebiete tatsächlich nicht vor- gekommen sei, so sei doch der Völkerbundsrat berechtigt gewesen, eine solche Anhörung durch die Ständige Mandatskommission zuzulassen. Daher sei auch die Generalver- sammlung berechtigt, den Ausschuß für Südwestafrika zur persönlichen Anhörung von Petenten zu ermächtigen. Eine Beschränkung der Generalversammlung auf die- jenigen Aufsichtsbefugnisse, die der Völkerbundsrat unter dem Mandatssystem auch tatsächlich ausgeübt habe, sei dem Gutachten vom 11. Juli 1950 nicht zu entnehmen.

On June ist, 1956, the International Court of Justice delivered its Advisory Opinion in the case relating to the Admissibility of Hearings of Petitioners by the Committee on South- West Africa of the General Assembly of the United Nations.

The Advisory Opinion was requested by the General Assembly which, on Decem- ber 3rd, 1955, adopted the following Resolution for this purpose:

"The General Assembly, Having been requested by the Committee on South- West Africa to decide whe-

ther or not the oral hearing of petitioners on matters relating to the Territory of South- West Africa is admissible before that Committee (A/2913/Add. 2),

Having instructed the Committe, in General Assembly resolution 749 A (VIII) of 28 November 1953, to examine petitions as far as possible in accordance with the procedure of the former Mandates System,

Requests the International Court of Justice to give an advisory opinion on the following question:

'Is it consistent with the advisory opinion of the International Court of Justice of 11 July 1950 for the Committee on South- West Africa, established by General Assembly resolution 749 A (VIII) of 28 November 1953, to grant oral hearings to petitioners on matters relating to the Territory of South- West Africa?'"

On receipt of the Request for an Opinion, the Court gave an opportunity to States Members of the United Nations to present their views. The Government of the United States of America and the Government of the Republic of China submitted written statements, and a representative of the Government of the United Kingdom of Great Britain and Northern Ireland made an oral statement at a public sitting of the Court. The Secretary-General of the United Nations transmitted the documents likely to throw light upon the question, together with an introductory note.

In its Opinion, the Court first indicates its understanding of the question submitted to it. It understands it as relating to persons who have submitted written petitions to the Committee on South- West Africa, in conformity with its Rules of Procedure. It also considers that it relates not to the authority of the Committee to grant hearings

*) Pressemitteilung der Gerichtsschreiberei des Internationalen Gerichtshofes (ver- bindlicher Gutachtentext: englisch).

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248 Entscheidungen

in its own right but to the question whether it is legally open to the General Assembly to authorize the Committee to grant hearings.

The General Assembly asked whether the grant of hearings would be consistent with the Advisory Opinion delivered by the Court in 1950. In order to answer that question, the Court must have regard to the whole of that Opinion and its general purport and meaning. It therefore analyzes the Opinion. The operative part indicates that the obligations of the Mandatory continue unimpaired with this difference, that the supervisory functions formerly exercised by the Council of the League of Nations are now to be exercised by the United Nations. The organ now exercising these super- visory functions, that is, the General Assembly, is legally qualified to carry out an effective and adequate supervision of the administration of the Mandated Territory. In the reasoning on which the Opinion of 1950 is based, the Court made it clear that the obligations of the Mandatory, including the obligation to transmit reports and petitions and to submit to the supervision, were those which obtained under the Mandates System. These obligations could not be extended, and consequently the degree of supervision to be exercised by the General Assembly should not exceed that which applied under the Mandates System. Following its finding regarding the substitution of the General Assembly for the Council of the League of Nations in the exercise of supervision, the Court stated that the degree of supervision should con- form as far as possible to the procedure followed by the Council of the League of Nations. But the necessity for supervision continues to exist: the Charter preserves the rights of States and peoples under existing international agreements, which implies the existence of a supervisory organ. From this analysis of the Opinion of 1950, it is clear that its paramount purpose was to safeguard the sacred trust of civili- zation through the maintenance of effective international supervision: in interpreting any particular sentences in the Opinion, it is not permissible to attribute to them a meaning which would not be in conformity with this paramount purpose or with the operative part of the Opinion.

How was the question of the grant of oral hearings dealt with during the régime of the League of Nations ? The texts do not refer to hearings and no hearings were ever granted. Nor, however, do the texts refer to the right of petition, an innovation which was nevertheless introduced by the Council of the League to render its supervisory functions more effective: it was competent to do so, and it would also have been competent to authorize the Permanent Mandates Commission to grant hearings, had it seen fit to do so.

In this connection, it had been contended that the Opinion of 1950 was intended to express the view that the Mandates System and the degree of supervision must be deemed to have been crystallized, so that the General Assembly could not do anything which the Council had not actually done, even if it had authority to do it. That is not the case. There is nothing in the Opinion of 1950 or in the relevant texts that can be construed as in any way restricting the authority of the General Assembly to less than that conferred on the Council of the League of Nations. It was proper for the Court to point out, in its Opinion of 1950, that the General Assembly could not enlarge its authority, but the Court was not called upon to determine whether the General As- sembly could or could not exercise powers which the Council of the League had pos- sessed but for the exercise of which no occasion had arisen.

Reliance had also been placed on the sentence, in the Opinion of 1950, to the effect that the degree of supervision to be exercised by the General Assembly should not exceed that which applied under the Mandates System, and it had been suggested that the grant of hearings would involve such an excess in the degree of supervision. But, in the present circumstances, in which the Committee on South-West Africa is working without the assistance of the Mandatory, hearings might enable it to be in

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Entscheidungen 249

a better position to judge the merits of petitions. That, however, is in the interest of the Mandatory as well as of the proper working of the Mandates System. It cannot therefore be presumed that the grant of hearings increases the burden upon the Mandatory. Nor is it possible to interpret the sentence in the Opinion of 1950 referred to above as being intended to restrict the activity of the General Assembly to measures which had actually been applied by the League of Nations. The context of the sentence is against such a construction, as is the Opinion given by the Court in 1955.

The Court lastly notes that, by reason of the lack of co-operation by the Mandatory, the Committee on South- West Africa had been constrained to make provision for an alternative procedure for the receipt and treatment of petitions. The particular question which has been submitted to the Court arose out of a situation in which the Mandatory has maintained its refusal to assist in giving effect to the Opinion of 1 1 July 1950, and to co-operate with the United Nations by the submission of reports, and by the transmission of petitions in conformity with the procedure of the Mandates System. This sort of situation was provided for by the statement in the Court's Opinion of 1950 that the degree of supervision to be exercised by the General As- sembly "should conform as far as possible to the procedure followed in this respect by the Council of the League of Nations."

In conclusion, the Court holds that it would not be inconsistent with its Opinion of 11 July 1950 for the General Assembly to authorize a procedure for the grant of oral hearings by the Committee on South- West Africa to petitioners who had already submitted written petitions: provided that the General Assembly was satisfied that such a course was necessary for the maintenance of effective international super- vision of the administration of the Mandated Territory.

The Court's Opinion of June ist, 1956, which was adopted by eight votes to five, gave an affirmative answer to the question put to it. Two Members of the Court - Judges Winiarski and Kojevnikov - while voting in favour of the Opinion, appended declarations thereto. Judge Sir Hersch Lauterpacht, who also voted for the Opinion, appended thereto a Separate Opinion. The five Members of the Court who voted against the Advisory Opinion - Vice-President Badawi and Judges Basdevant, Hsu Mo, Armand-Ugon and Moreno Quintana - appended to the Opinion of the Court a joint dissenting opinion.

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