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International Court of Justice: South West Africa and Northern Cameroons Cases (Preliminary Objections)*

Published online by Cambridge University Press:  21 May 2009

J. H. W. Verzijl
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Extract

During the life of the League of Nations the Mandates, created in conformity with Article 22 of its Covenant, have only once given rise to proceedings before the Permanent Court of International Justice. The case was that between Greece, as plaintiff, and Great Britain, in her capacity of Mandatory Power, as respondent, over the concessions for certain public works to be constructed by a Greek subject Mavrommatis in Palestine under contracts and agreements which he had concluded with the Ottoman authorities in January 1914. The respondent party immediately raised a preliminary objection to the jurisdiction of the Court. How specious such questions of jurisdiction often are, was proved by the fact that the Court, in a Judgment of 30 August 1924 (Publications P.C.I.J., series A, No. 2), by 7 votes to 5 upheld its jurisdiction in respect of the works at Jerusalem—comprising an electric tramway system, the supply of electric light and power and of drinking water to the city—, while, obviously unanimously, denying it in respect of similar works—including in addition a system of irrigation of the city gardens—at Jaffa. This decision was based on an adjudication clause, obtaining in Article 26 of the Mandate for Palestine of 24 July 1922. On the strength of that Judgment the merits of the controversy over the Jernsalem concessions were dealt with in subsequent proceedings, terminated by a second Judgment of 26 March 1925 (ibid., series A, No. 5), by which (this time with only one dissenting vote), inter alia, the concessions concerned were found to be valid and Article 4 of Protocol XII, annexed to the Peace Treaty of Lausanne of 1923, concerning certain concessions granted in the Ottoman Empire— providing for the obligatory adaptation thereof to the new economic conditions—was held to be applicable to them.—When the ensuing lengthy negotiations between Great Britain and Greece for such adaptation reached deadlock in 1927, Greece again applied under the said Article 26 of the Mandate to the Permanent Court, with the object of achieving the award of damages for the asserted failure of Great Britain, in carrying-out the second Judgment, to comply with another provision (Article 11) of the Mandate, dealing with the methods of developing the country. Once more the British Government raised a preliminary objection to the jurisdiction of the Court, maintaining that it was not competent to deal with this element of the dispute, and this time, by 7 votes to 4, the Court, by a third Judgment of 10 October 1927 (ibid., series A, No. 11), upheld the objection for reasons too technical to be summarized here.

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Articles
Information
Netherlands International Law Review , Volume 11 , Issue 1 , March 1964 , pp. 1 - 33
Copyright
Copyright © T.M.C. Asser Press 1964

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References

1. The two proceedings were, owing to their identity, joined by the Court by its Order of 20 May 1961 (I.C.J. Reports 1961, p. 13).Google Scholar

2. In conformity with established case law Ethiopia and Liberia could only designate in common one Judge ad.hoc, and they did so by choosing, in conformity with an earlier practice sometimes followed, not one of their own nationality, but a lawyer from Ghana, Sir Louis Mbanefo.

3. The Charter of the United Nations entered into force on 24 October 1945. All three litigants deposited their ratifications in the course of November 1945, South Africa on the 7th. The League of Nations ceased to exist from 19 April 1946.

4. Many years ago I have attempted to give a reasoned answer to a number of these questions in a systematic survey of the problems involved: Weekblad van het Recht. 3 and 6 06 1933, Nos. 12600 and 12601.Google Scholar

5. The answer would seem to be: no. A State that after World War I sought the conferment of a Mandate, certainly not exclusively with the primary altruistic object of fulfilling a “sacred trust of civilization”, but, at any rate pari passu, for the enhancement of its political power in a particular part of the world, and which for that purpose accepted it by a solemn synallagmatic compact, did so knowingly and fully conscious of the arduous task that it thereby undertook, and the risks it incurred, also in seeking to promote the political stability of the area concerned. The voluntary and not uninterested acceptance of such a task did not allow a Mandatory, for subsequent political reasons contrary to those which guided its ambitions in the past, to renounce it unilaterally under less profitable circumstances, with all the consequent political risks involved for the stability of the area concerned, which as a result would threaten to become a political vacuum, without the sanction of the Organization in whose name it had promised to conduct the Mandate.—The legality of the unilateral abandonment of the Mandate for Palestine in 1948 by Great Britain must be assessed in the light of these considerations.

6. The answer must doubtless be: yes. The Mandate was conferred upon the Mandatory under strictly defined requirements of future conduct on its part and must be held to be conditional upon their loyal fulfilment. On that ground I already vindicated in 1933 the right of the League of Nations to deprive Japan of the Mandate over the islands in the Pacific under her administration which she had, contrary to the provisions of the Mandate, transformed into naval bases.— Exactly the same consideration still applies in my opinion to South Africa's Mandate: should the International Court rule on the merits that the Republic's conduct in respect of it is contrary to her obligations under the Mandate Agreement, then the competent organ of the new World Organization would certainly be entitled to deprive her of it.

7. I fully agree with Judge Bustamante's opinion at p. 354: “Article 22 of the Covenant does not mention whether the (Principal Allied) Powers concerned were to preserve for the future the power to appoint Mandatories where necessary, or whether that power was to be conferred on the League of Nations through the Council. I would personally opt for the latter presumption since, in my view, the intention of the Powers was to renounce finally any rights to the former colonies.” —The Council of the League has since 1946 been replaced in this respect by the United Nations General Assembly.

8. However improbable and undesirable, such a conferment would not have been precluded by any imperative text. The United Nations has in fact adopted this solution under the Trusteeship System: Italy, although not yet a Member of the United Nations, was, for very complicated political reasons, in 1948 vested with a Trusteeship over her former colony of Somaliland.

9. As a corollary the to propositions formulated in notes 6) and 8), the answer to this question would seem to be that a Mandatory's voluntary departure from the League would not in itself and automatically have terminated its Mandate, but that it might have led the League to consider its withdrawal for reasons of general policy. The exclusion of a Mandatory from the League was a far more serious ground for depriving it of its Mandate: even if such an exclusion had not, perhaps, caused the Mandate to lapse ipso jure, it would certainly have provided a valid ground for withdrawing the Mandate from the Mandatory, even if the ground for the latter's exclusion was not directly connected with any violation of the Mandate itself.

10. The difficulty of determining the “seat of territorial sovereignty” over the Mandated Territory is simply due to the positing of the wrong question. With regard to a legal situation in which different manifestations of public power over one and the same territory are apportioned among different authorities, the whole quest for “the” territorial sovereignty loses much of its usual meaning, or becomes senseless. Hence the insoluble competition between some twelve rivalling “theories”.

11. The Judgment does not pay any attention to this historical fact.—Judge Jessup analyses it briefly from the legal point of view (p. 431) and concludes that the suggested insertion in the draft Mandate for British East-Africa in 1919, after the general jurisdictional clause regarding “any dispute whatever”, of a second sentence to the effect that “States Members of the League of Nations may likewise bring any claims on behalf of their nationals for infractions of their rights under this Mandate before the said Court for decision”, clearly proves that that general clause must mean something different from, or more than, what is meant by the proposed new “Tanganyika clause”. The subsequent cancellation of the latter confirms the generality of the former.

12. It is curious again that, although the international community had experienced all the difficulties caused by the use of such a vague phrase without any clearly identifiable meaning, it nevertheless—or was it intentionally with the object of not missing the chance of future political manoeuvring and bargaining? one is inclined to become suspicious!—once again adopted, in the framework of the new Trusteeship System, a similar equivocal expression in Article 79 of the Charter. “The terms of trusteeship for each territory … shall be agreed upon by the states directly concerned”. The Preparatory Commission which met in London in 1945–1946 was already forced to acknowledge that that expression had no identifiable meaning either.

13. Namely, (i) between the Principal Powers on the conferment of a particular Mandate upon a specific Mandatory Power; (ii) between the same Powers on the formulation of the terms of the Mandate; (iii) of the designated Mandatory— in this case “His Britannic Majesty for and on behalf of the Government of the Union of South Africa”—to accept the Mandate on the terms formulated; (iv) between the Members of the Council inter se, and thereby also between the Council and the Mandatory, on the definite terms of the Mandate, as a result of which the necessary link between the League and the Mandatory was forged; and (v) the consent of the Mandatory to submit to compulsory adjudication.

14. “A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons”.

15. A very optimistic, if not even naive, assertion indeed!

16. Judge Fitzmaurice was entirely right in observing (p. 99/100) that this contention was not supported by any evidence, so that Cameroon's allegation of a causal relationship between Great Britain's method of administering the Northern Cameroons and the untoward result of the ensuing plebiscice hung completely in the air

17. They are mentioned and discussed in some of the individual or dissenting opinions. Comp. those of Judges Wellington Koo (p. 43 ff.), Sir Gerald Fitzmaurice (p. 111 ff.) and Bustamante (p. 167 ff.). Since their exact contents have played no part in the essential statement of reasons obtaining in the Judgment, I do not attempt either to summarize them here.

18. The Court quotes here, and obviously with full approval, the well-known and virtually undisputed statement of principle by the Permanent Court in the Mavrommatis Palestine Concessions case (P.C.I.J., series A, no. 2, p. 34) pursuant to which “the Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law.”

19. It is doubtful, however, if the operative clause, whatever its wording, is not in actual fact essentially a dictum of inadmissibility (irrecevabilité), or, with a new term suggested by the British Judge, of “unexaminability”. See p. 101: “The Court has not, I think, pronounced the claim to be formally inadmissible, but it has in effect (to make use of the French term recevabilité) treated it as non-receivable or unexaminable because of the consequences (i.e. strictly, the lack of any) which would ensue if it was acceded to.” In his opinion a claim which would and could only have that outcome must be regarded as inadmissible.

20. How subtle these questions are is evidenced by the fact that, precisely on the basis of Judge Morelli's analysis of the essence of a dispute, Judge Fitzmaurice argues in his separate opinion (p. 109) that there is none. This negative conclusion is based on the contention that Judge Morelli's definition embodies only the minimum and needs a further “essential ingredient” as its complement: the result, in the form of the decision by the Court, must be capable of affecting the legal interests or relations of the parties (p. 110).