Background Information on The South West
Africa Cases
***Dissenting Opinion lang yung assigned in
class
By virtue of the Treaty of Versailles,
Gernany renounced all its rights in its
overseas possession in favor of the Allied
Powers, among these was German South
West Africa.
This territory was entrusted to the Union of
South Africa, under a mandate conferred
upon the King of England, pursuant to
Article 22 of the Covenant of the League of
Natins.
Article 22 established the Mandates System,
which was an alternative to the practice of
annexation of the territories of nations
defeated in the war.
The Mandates system was based on the
ideal that advanced nations should
undertake to carry out a sacred trust of
civilization to promote the wellbeing and
development of people who could not stand
by themselves in the modern world.
(Mandatory should promote the utmost the
material and moral well-being and social
progress of the inhabitants subject to the
Mandate.
With the dissolution of the League of
Nations after WWII, the South African
government wanted to incorporate the
mandated territory into the union.
This was unacceptable to the General
Assembly of the UN. When the Trusteeship
System was instituted, the Union of South
Africa was the only mandatory which
refused to yield its dominion over the
mandated territory.
The General Assembly sought an opinion
from the International Court of Justice on the
status of the Territory.
The Court held that the Mandate had
survived the dissolution of the League and
two obligations remained in force: 1) to
promote to the utmost the material and
moral wellbeing and the social progress of
the inhabitants 2) to submit annual reports
on the administration of the Territory and
transmit petitions from the indigenous
peoples to the UN General Assembly.
The Court also ruled that the Union of South
Africa would be obliged to accept the
compulsory jurisdiction of the Court as
successor to the Permanent Court of
International Justice.
The South West Africa Cases
Applicants Governments of Liberia and
Ethiopia instituted proceedings against the
Respondent Union of South Africa (now a
republic).
The substance of their claims was that the
pursuit of apartheid was violative of the
obligations which the Union of South Africa
had undertaken as Mandatory of South
West Africa.
Respondent Union filed 4 objections relating
to the jurisdiction of the Court.
In 1962: The Court held
o The Mandate, notwithstanding the
dissolution of the League, was a
treaty in force, and Art 7 of the
Mandate still subsists
o Ethiopia and Liberia is qualified as
another member of the League
within the meaning of Article 7
o There was a dispute within the
meaning of Article 7 despite the fact
that material interests of the
applicants were not involved
o The Dispute could not be settled by
negotiation within Article 7.
o The Court basically found that the it
had jurisdiction to adjudicate on the
merits of the dispute.
In 1966: On the question of W/N the parties
having standing before the Court to invoke
substantive provisions of the Mandate were
vested with a right of action. The Court geld
that t1he applicants claims were
inadmissible because the Mandate was
never intended to confer substantive rights
on members of the League of Nations where
material interests of the States were not
involved.
The Court distinguished between 2 kinds of
provisions in the mandates:
o Conduct provisions articles
defining the Mandatorys powers
and obligations in respect to the
inhabitants of the territory and
towards the League and its organs.
These provisions were the heart of
the sacred trust.
o Special interests provisions
conferring material benefits directly
upon the members of the League
 In regard to the Mandate for SW Africa,
there was only 1 special interests provision
in the Mandate.
The Court concluded that, even when the
League of Nations still existed, Applicants
did not, in their individual capacity as States,
possess any separate right, which they
could assert independent of the right of the
League to require the due performance of
the Mandate.
The Courts view was that the conduct
provisions of the Mandate precluded
individual members/States from claiming
substantive rights to compel enforcement of
the Mandatorys conduct obligations. The
responsibility for the mandates resided in
the League as a whole.
The Court also explained the voluntary and
political nature of the obligations under the
Mandate that the Council could never
impose its views on an unwilling mandatory
because of the unanimity rule.
The Court also pointed to the power of the
Council to seek an advisory opinion from the
Permanent Court of the International
Justice, which would not be binding on the
Mandatory.
o The Mandate was interpreted as a
document of limited enforceability.
The existence of rights which might
bind the Mandatory against its will
was inconsistent with the obligations
assumed, except for the special
interest provisions.
o The first clause of Article 2- "The
Mandatory shall have full power of
administration and legislation over
the territory subject to the Mandate
as an integral portion of the Union of
South Africa suggests that the
discretionary power vested in the
Mandatory was broad as well.
Under the majoritys view, the Court was
being asked to interfere with the
administration of the mandated territory. It
was being asked to evaluate the utility of
one social order as opposed to another.
Dissenting Opinion of Judge Tanaka (ito na
talaga!)
Along with Judge Jessup, Judge Tanaka
saw no attempt by the applicants to foist
upon the respondent one social system in
preference to another because of moral,
social, political reasons per se.
o Mandatorys conduct could not be
judged according to appropriate
legal standards.
o To Judge Jessup found a sufficient
objective standard in Article 2.
Judge Tanaka took up the argument of the
applicants for a norm of international law,
binding on the Mandatory, which established
the illegality of racial discrimination.
He considered the difficulty of evaluating the
substance of the Mandatorys obligations
without sufficient legal standards,
suggesting that the creators of the Mandate
did not fully consider the problems inherent
in the obligations stated in Article 2 of the
Mandate:
The concept of the promotion of "material
and moral well-being and social progress of
the inhabitants" which constitutes the
objectives of the Mandate for South West
Africa (Article 2), is in itself of a political
character and cannot be recognized as
susceptible of judicial determination and
execution.
But this does not mean that Article 2 does
not constitute a legal norm.
o The process whereby a cultural or
political norm is vested with juridical
value is the process of
naturalization.
Tanaka admitted it is correct to say that in
the area of discretionary power, an issue is
justiciable only if the Mandatory acts in bad
faith.
o He turned to the applicants
amendment of their Submission no.
4 with the insertion of the phrase in
light of applicable international
standards or international legal
norms.
o He said that applicants cause is no
longer based directly on a violation
of the well-being and progress by
the practice of apartheid, but on the
alleged violation of certain
international standards or legal
norms and not directly on the
obligation to promote the well-being
and social progress of the
inhabitants.
o The alleged norm and standards
pleaded in applicants submission
constitute a limitation on the
Mandatorys discretionary power
under Article 2.
What then is the source of the international norm
or standards which are incorporated in the
Mandatorys general obligations as a limit upon
its discretionary power?
Judge Tanaka found such a norm in three
sources of international law contained in
Article 38 of the Statute of the Court.
1. The norm of non-discrimination binds
the respondent as part of the Charter of
the UN (its a norm of conventional
international law under Art 38(1a))
2. The norm is a part of customary
international law under Art 38(1b) relying
on the repetition of resolutions and
declarations of international organs
3. The norm of non-discrimination is
among the general principles of law
recognized by civilized nations under Art
38(1c).
a. The general principles include
not only basic principle of law,
but also general theories and
fundamental concepts as well
as juridical truth.
The natural principle of non-discrimination
neither depends on analogy nor or the
consent of the nations subject to it. Evidence
of recognition of such a general principle is
found in the constitutions of most of civilized
nations as well as international body.
Judge Tanaka stated the claims of the
applicants in regard to the alleged norm:
What the applicants seek to establish seems
to be that the Respondents practice of
apartheid constitutes a violation of
international standards and/or an
international legal norm, namely the
principle of equality and as a result, a
violation of the obligations to promote to the
utmost, etc. If the violation of this principle
exists, this will be necessarily followed by
failure to promote the well-being, etc. The
question is whether the principle of equality
is applicable to the relationships of the
mandate or not.
o This he answered by saying that the
principle of equality, although not
expressly mentioned in the
mandate, constitutes an integral part
of the mandates system. From the
natural-law character of this
principle its inclusion in the Mandate
must be justified.
Having concluded that the principle of
equality or non-discrimination is applicable
to obligations included in Article 22 of the
Covenant and Article 2 of the Mandate,
Judge Tanaka considered the divergence of
views found in the formula: whether or not
the policy of racial discrimination is per se
incompatible with the well-being and social
progress of the inhabitants, or W/N
apartheid is illegal and is a breach of the
Mandate or depends upon the motive, the
result or the effect.
o Respondent believes it is not per se
prohibited but only a special kind of
discrimination which leads to
oppression is prohibited. It urged the
necessity of different treatment for
diverse population groups for the
purpose of promoting their well-
being.
To explain the natural principle of equality,
Tanaka turned to the Aristotelian concepts
of justitia commutative and justitia
distributiva and concluded that what is equal
is to be treated equally and what is different
is to be treated differently, proportionately to
the factual difference, which should be
permitted only when it can be justified by the
criterion of justice or reasonableness.
Judge Tanaka concluded that discrimination
on the basis of race renders the policy of
apartheid violative of the principle of equality
because it does not take into account
concrete individual circumstances.
o Apartheid constitutes a violation of
Article 2 of the Mandate because
the observance of equality must be
considered as a necessary condition
to the promotion of the material and
well-being and the social progress
of the inhabitants of the territory.
***Im super mega sorry for this crappiness.