Southwest Africa case

During 1915, the region was taken from German control in the South-West Africa Campaign of the First World War. After the war, it was declared a League of Nations Mandate territory under the Treaty of Versailles, with the Union of South Africa responsible for the administration of South-West Africa, including Walvis Bay.

The Mandate was supposed to become a United Nations Trust Territory when League of Nations Mandates were transferred to the United Nations following the Second World War. The Union of South Africa objected to South-West Africa coming under UN control and refused to allow the territory's transition to independence, regarding it as a fifth province (even though it was never formally incorporated into South Africa).

In 1960, Ethiopia and Liberia filed a case in the International Court of Justice against South Africa alleging that South Africa had not fulfilled its mandatory duties.

Ruling

The question to be decided was whether any legal right or interest was vested in members of the League of Nations individually as regards the "conduct" clauses of the mandates - i.e., whether the various mandatories had any direct obligation towards the other members of the League individually, as regards the carrying out of the "conduct" provisions of the mandates. If the answer were that the Applicants could not be regarded as possessing the legal right or interest claimed, then even if the various allegations of contraventions of the Mandate for South West Africa were established, the Applicants would still not be entitled to the pronouncements and declarations which, in their final submissions, they asked the Court to make.

It was in their capacity as former members of the League of Nations that the Applicants appeared before the Court, and the rights they claimed were those that the members of the League were said to have been invested with in the time of the League. Accordingly, in order to determine the rights and obligations of the Parties relative to the Mandate, the Court had to place itself at the point in time when the mandates system was instituted. Any enquiry into the rights and obligations of the Parties must proceed principally on the basis of considering the texts of the instruments and provisions in the setting of their period.

Similarly, attention must be paid to the juridical character and structure of the institution, the League of Nations, within the framework of which the mandates system was organized. A fundamental element was that Article 2 of the Covenant provided that the "action of the League under this Covenant shall be effected through the instrumentality of an Assembly and of a Council, with a permanent Secretariat". Individual member States could not themselves act differently relative to League matters unless it was otherwise specially so provided by some article of the Covenant.

Individual member States of the League could take part in the administrative process only through their participation in the activities of the organs by means of which the League was entitled to function. They had no right of direct intervention relative to the mandatories: this was the prerogative of the League organs.

Nor could the Court accept the suggestion that even if the legal position of the Applicants and of other individual members of the League were as the Court held it to be, this was so only during the lifetime of the League, and that on the latter's dissolution the rights previously resident in the League itself, or in its competent organs, devolved upon the individual States which were members of it at the date of its dissolution. Although the Court held in 1962 that the members of a dissolved international organization can be deemed, though no longer members of it, to retain rights which, as members, they individually possessed when the organization was in being, this could not extend to ascribing to them, upon and by reason of the dissolution, rights which, even previously as members, they never did individually possess. Nor could anything that occurred subsequent to the dissolution of the League operate to invest its members with rights they did not previously have as members of the League. The Court could not read the unilateral declarations, or statements of intention, made by the various mandatories on the occasion of the dissolution of the League, expressing their willingness to continue to be guided by the mandates in their administration of the territories concerned, as conferring on the members of the League individually any new legal rights or interests of a kind they did not previously possess.

Finally, the Court dealt with what had been called the argument of "necessity". The gist of this was that since the Council of the League had no means of imposing its views on the Mandatory, and since no advisory opinion it might obtain from the Court would be binding on the latter, the Mandate could have been flouted at will. Hence, it was contended, it was essential, as an ultimate safeguard or security for the sacred trust, that each Member of the League should be deemed to have a legal right or interest in that matter and be able to take direct action relative to it. But in the functioning of the mandates system in practice, much trouble was taken to arrive, by argument, discussion, negotiation and cooperative effort, at generally acceptable conclusions and to avoid situations in which the Mandatory would be forced to acquiesce in the views of the rest of the Council short of casting an adverse vote. In this context, the existence of substantive rights for individual members of the League in the conduct of the mandates exercisable independently of the Council would have been out of place. Furthermore, leaving aside the improbability that, had the framers of the mandates system intended that it should be possible to impose a given policy on a mandatory, they would have left this to be haphazard and uncertain action of individual members of the League, it was scarcely likely that a system which deliberately made it possible for mandatories to

block Council decisions by using their veto (though, so far as the Court was aware, this had never been done) should simultaneously invest individual members of the League with a legal right of complaint if the mandatory made use of this veto. In the international field, the existence of obligations that could not be enforced by any legal process had always been the rule rather than the exceptionand this was even more the case in 1920 than today.

Moreover, the argument of "necessity" amounted to a plea that the Court should allow the equivalent of an actio popularis, or right resident in any member of a community to take legal action in vindication of a public interest. But such a right was not known to international law as it stood at present: and the Court was unable to regard it as imported by "the general principles of law" referred to in Article 38, paragraph 1 (c), of its Statute

River Meuse Case

Facts

On May l2th, 1863, Belgium and the Netherlands concluded a Treaty the purpose of which was "to settle permanently and definitively the regime governing diversions of water from the Meuse for the feeding of navigation canals and irrigation channels. (1)Article I of this Treaty provided for the construction below Maestricht, in Netherlands territory, of a new intake which would constitute "the feeding conduit for all canals situated below that town and for irrigation in the Campine and in the Netherlands. (2)

The Belgian Government accepted the Treaty not without reluctance, in view of the fact that it provided for only one intake and that to be situated in foreign territory.

When the economic development of the Belgian and Netherlands provinces of Limburg necessitated the enlargement of certain canals and the construction of new works, the two States signed in 1925 a new agreement designed to settle the differences which had arisen in respect of the construction programmes. After the rejection of this agreement by the Netherlands First Chamber, the Netherlands proceeded to construct and complete the Juliana Canal, the Bosscheveld Lock and the Borgharen barrage. On its part, Belgium began the construction of the Albert Canal, unfinished at the time of the judgment, a barrage at Monsin and a lock at Neerhaeren.

As no further progress could be made in the settlement of the points at issue between the two States, the Netherlands initiated proceedings in the Court by means of a unilateral application, based on the declarations made by both the Netherlands and Belgium in which they accepted the compulsory jurisdiction of the Court under Article 36 (a) of the Statute. Belgium, on its part, made a counterclaim.

In the course of the proceedings and at the suggestion of the Belgian Agent, which the Netherlands Agent did not oppose, the Court visited the locality in order to see on the spot the installations, canals and waterways to which the dispute related and to witness practical demonstrations of the operations of locks and installations connected therewith.

Submissions of the Parties

The Netherlands ask the Court in the main to adjudge and declare that the works already carried out by Belgium were contrary to the Treaty of 1863, that the proposed works would be contrary to it and, consequently, to "order Belgium a) to discontinue all the works" listed in the Netherlands' submissions and "to restore to a condition consistent with the Treaty of 1863 all works constructed in breach of that Treaty; b) to discontinue any feeding held to be contrary to the said Treaty and to refrain from any further such feeding. (3)

On its part, Belgium asks the Court to declare the Netherlands' submissions ill-founded, as well as to adjudge and declare, in respect of the counter-claim, that the Borgharen barrage was constructed in breach of the stipulations of the Treaty of 1863, that the Juliana Canal is subject to the provisions of the Treaty and, finally, to reserve the rights accruing to Belgium from the breaches so committed.

Summary of the Judgment

Since the questions at issue are governed by the Treaty of 1863, the Court at the outset discards the application to the dispute of the general rules of international river law in favour of the interpretation and application of the Treaty.

The Netherlands maintain that Article I of the Treaty,(4) which provides for a single feeder, situated in Netherlands territory, gives them the right to supervise and control all the intakes, situated not only in their own territory, but also in Belgian territory. This contention necessarily implies that "the Treaty of 1863 intended to place the Parties in a situation of legal inequality by conferring on the Nether-

lands a right of control to which Belgium could not lay claim. (5) But, in order to allow the existence of such inequality between the Parties to a treaty freely concluded, the text of the treaty must say so in precise terms. In the absence of such terms, the Court rejects the Netherlands' submission.

While criticizing the construction by Belgium of the Neerhaeren Lock, the Netherlands do not invoke a specific provision of the Treaty. The Court grants that the Treaty has brought into existence a certain rgime which results from all its provisions taken together and that, accordingly, it forms a complete whole, the different provisions of which cannot be dissociated from the others and considered in isolation. This is equally the case with Article I which must be interpreted together with the other Articles. In the light of this Article, thus interpreted, neither the Netherlands' contention regarding the Neerhaeren Lock, nor the Belgian reply, can be accepted in its entirety. Furthermore, the Court, after mentioning the construction by the Netherlands of the Bosscheveld Lock, refuses to admit the Netherlands' complaint about the construction and operation of a lock of which they themselves set an example in the past.

With regard to the supply by Belgium to a section of the Albert Canal of water taken from the Meuse elsewhere than at Maestricht, the Court considers that the origin of the water is irrelevant. Nothing prevents either Belgium or the Netherlands from making such use as they may see fit of the canals covered by the Treaty, when the canals do not leave their own territory. Each of the two States is at liberty in its own territory to modify such canals, to enlarge them, to trans-form them, to fill them in and even to increase the volume of water in them, provided that the diversion of water at the feeder mentioned in the Treaty and the volume of water to be discharged therefrom is not affected. The same reasoning applies to the Netherlands' criticism of the proposed supply by Belgium to a section of another canal of water taken from the Meuse elsewhere than at Maestricht.

Having thus rejected all the Netherlands' submissions, the Court proceeds to deal with the Belgian counter-claims, the first of which concerns the Borgharen barrage. The Court finds that the Treaty does not forbid the Netherlands from altering the depth of water in the Meuse at Maestricht without the consent of Belgium, provided that neither the discharge of water through the feeder, nor the volume of water which it must supply, nor the current in the Zuid-Willemsvaart is thereby affected. It is subject to this condition, and not at their arbitrary discretion, that the Netherlands are entitled, under the Treaty, to dispose of the waters of the Meuse at Maestricht. With regard to the alleged interference, by the criticized construction, with the navigability of that part of the Meuse common to both States, the Court considers that Belgium has not produced any proof of it. In reply to the second Belgian submission, which relates to the Juliana Canal, the Court finds that the Treaty was designed to regulate the supply of water to the canals situated on the left bank of the Meuse only. Thus, canals situated on the right bank, such as the Juliana Canal, do not come under the regime of water supply provided for by the Treaty.

For these reasons, the Court rejects both the Netherlands' submissions and the submissions contained in the Belgian counter-claim.