INTERNATIONAL COURT OF JUSTICE
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PART IV

CORRESPONDENCE

QUATRIÈME PARTIE

CORRESPONDANCE1. THE DEPUTY PRIME MINISTER AND THE MINISTER FOR FOREIGN AFFAIRS

OF ETHIOPIA TO THE REGISTRAR

28 October 1960.

Sir,

1have the honour to send y011herewitlia letter from theAgents of the

Government of Ethiopia, trans~nitting to you on behalf of the Etliiopian

Government an Application 1 instituting proceedings before the Inter-

national Court of Justice and relating toa dispute with the Government

of the Union ofSouth Africa concerning the interpretation and applica-

tion of the Mandate for South West Africa.

1 have the further honour to inform you thnt H.E. Dr. Tesfaye

Gebre-Egzy and Hon.Ernest A.Gross have been appointed Agents ofthe

Ethiopian Government in this case.

Very truly yours,

(Siggted)Tsahafe Tezaz Aklilu HABTE-WOLD.

2. THE AGENTS 01; THE GOVERNMENT OF ETHIOPIA TO THE REGISTRAR

28 October 1960.

Sir,

Ive have the honour to address to you, on behalf of the Government

of Ethiopia, an Application iristituting Proceedings before the Inier-

national Court of Justice and relating to adispute with the Government

of the Union of South Africa concerning the interpretation and applica-

tion of the Mandate for South West Africa.

Very truly yours,

(Signed) Tesfaye GEBRE-EGZY.

(Signed Ernest -4. GROSS.

l See 1, pp. 4-24.512 SOUTH WEST AFRICIZ

3, THE AMBASÇADOR OF LIBERIA TO THE XETHERLAXDS TO THE REGISTRAR

Sir,

I have the honour to send you herewith aletter from the Agents of the

Govemment of Liberia, transrnitting to you, on behalf of the Liberian

Government, an Application l instituting Proceedings before the Inter-

national Court of Justice and relating to a dispute with the Government

of the Union of South Africa concerning the interpretation and applica-

tion of the Mandate for South West Africa.

1 have the further honour to inform you that Honourable Joseph

W. Garber, Attorriey General of Liberia, and Honourable Ernest A.

Gross have been appointed Agents of the Liberian Government in this

case.

Very truly yours,

(Signed) joseph GRAHAM.

4. THE AGENTS OF THE GOVERXMENT OF LIBERIA TO THE REGISTRAR

Sir,

We have the hoiiour to address to you, on behalf of the Government

ofLiberia, an Application instituting Proceedingsbefore the International

Court of Justice and relating to a dispute with the Government of the

Union of South Africa concerning the interpretation and application of

the Mandate forSouth West Africa.

Very truly yours,

(Sigtted) Joseph W. GARBER.

(Signed) Ernest A. GROSS.

5. THE REGISTRAR TO THE CHARGÉ D'AFFAIRES -4.1. OF SOUTH AFRICA

TO THE XETHERLANDS

qNovember 1960.

Sir,

1have the honour to inform you that an Application has today been

filedin the Registry of the International Court of Justice on behalf of the

Government of Ethiopiainstituting proceedings before the Courtagainst

1 Sec1, pp. 26-28.

* A simila; communication\vassent to the Chargéd'Affaires of SouthAfrica

in respect of the Application fiietheGovernment ofLiberia. CORRESPONDENCE 513

the Union of South Africa and relating to a dispute with the Government

of the Union of South AfRca concerning the interpretation and applica-

tion of thehiandate for South West Africa. 1 enclose herewith a copy of

this Application and of the lerter of transmittal of H.E. the Deputy

Prime Minister and Minister for Foreign Affairs of Ethiopia. 1shall idue

course transmit to you certifiecl printed copies of the Application in the

English and French edition which will be prepared by tlicRegistry.

You will observe that the Applicant refers to Article 80. paragraph I,

of the Charter of the United Nations and founds the jurisdiction of the

Court on Article 7 of the Mandate for Cerman South West Africa made

at Geneva on 17 llecember 1920, and on Article 37 of the Statute of the

Court.

1 take this opportunity of drawingyour attention to Article 3j ofthe

Rules of Court which provides (paragraph 3) that the Party against

whom the Application is made aiid to whom it is notified shall, when

acknowledging receipt of the notification, or failing this, as soon as pos-

sible, inform the Court of the name of its Agent, and (paragraph 5)that

the appointment of an Agent muçt be accompanied by a statement of

an address for service at the seat of the Court to which al1 communica-

tions relating tothe case should be sent.

1have the further honour to inform you that the question of the fixing

of time-limits for the filing of the pleadings in the case wform the sub-

ject of a later coinmunication. In this coiinection, 1 would venture to

draw your attention to Article 37, pragraph r,of the Rules of Court.

1 have, etc.

6. THE REGISTRAR TO THE DEPUTY PRIME MINISTER AND MINISTEK FOR

FOREIGK A1:FBIRÇ OF ETHIOPIA

5 November 1960.

1have the honour to acknowiedge receipt of Your Excellency's letter

of 28 October 19Go which was accompanied by a letter from the Agents

of the Governmeiit of Ethiopia, transmitting to me on behalf of the

Ethiopian Covemment an Application instituting proceedings before the

International Court of Justice and reIating ta a dispute with the Govern-

ment of the Union of South Africa, concerning the interpretation and

application of the Mandate forSouth West Africa.

I have the fiirther honour to inform Your Excellenc~v that due note

has been taken of the appointment of H.E. Dr. Tesfaye Cebre-Egzy and

Hon. Ernest A. Gross as Agents of the Ethiopian Government in thiç

case and of their address for service at the seat of the Court.

1 have, etc.

lands.eimilarcomtnunication\\.acnt tothe Ambassador of Liberito the Scther-514 SOUTH WEST AFRICA

7. THE REGISTRAR TO THE AGENT FOR THE GOVERNMENT OF ETHIOPIA1

5 November 1960.

Sir,

1 have the honour to refer to the letter o28 October 1960 by which

H.E. the Deputy Prime Xinister and Minister for Foreign Affairs of

Ethiopia infoi:med me of your appointment as Agent of the Governrnent

of Ethiopia in the proceedings instituted by that Government against

the Union of South Africa, and to acknowledge your letter of 28 October

1960 transmitting the Applicatioii in that case.

I have the further honour to inform you that the Application was

filedin the Registrv on 4 November 1960 and was the same day com-

municated to the Chargé d'affaires al The Hague of the Union of South

Africa.

The question ofthe fixingof time-limits for the filiof the pleadings

in the case willform the subject of a later communication. In this con-

nection 1wouId venture to drawyour attention to Article 37,paragraph r,

of the Rules of Court.

1 have, etc.,

8. THE REGISTRAR TO THE SECRETARY-GENERAL OF THE UNITED NATIONS

5 November 1960.

Sir,

1 have the honour to refer to my telegram of yesterday's date, a copy

of which is enclosed hcrewith, and to confirm that on 4 November 1960

Applications were respectively filed on behalf of the Government of

Ethiopia and the Goveriiment of Liberia inçtituting proceedings against

the Union of Soutli Africa, each relating toa dispute with the Govern-

ment of the Union of South Africa concerning the interpretation and

application of the Mandate for South West Africa.

1 should be grateful if, in accordancewith Article 40, paragraph 3, of

the Statute of the Court, you would be good enough to notify the Mem-

bers ofthe United Nations of the filing of these Applications.

For this purpose, 1shall forward to you as soon as possibIrzgcertified

true copies of each of the Applications, marked "Attention Director,

General Legal Division".

Ihave, etc.,

l The same communication was sent scparately to the two Agents of the Govern-

ment of Ethiopia and similar communicationswere sentseparately to the two

Agents of the Gover~iinent of Libeinrespect of ttic Applicatfi1eby their

Government. 9. LE GREFFIER AU MINISTRE DES .4FFr\lRES ETRASCER DE'SFGHASISTAN

26 novembre 1960.

blonsicur l'Ambassadeur,

Le 4 ~ovembre 1960 a étédéposée au Greffe de la Cour internationale

de Justice, au nom du Gouvernement de lfEthiopie, une requête par

laquelle ce Gouvernement a int.roduit contre le Gouvernement de l'Union

sud-africaine une instancerelative au Sud-Oiiest africain.

J'ai l'lionneur, à toutes fins utites, de transmettre ci-joint à Votre

ExceIIence un exemplaire de cette requête.

Veuillez agréer, etc.,

26 novembre 1960.

hlonsieur 1'Ambassadeur,

Le 4 novembre 1960 a étédéposéeau Greffe de la Cour internationale

de Justice, au nom du Gouvernement de IiEthiopie, une requête par

laquelle ce Gouvernement a introduitcontre le Gouvernement de l'union

sud-africaine une instance relative au Sud-Ouest africain.

réftrant à l'article 40, paragraphe 3, du Statut de la Cour, j'ai

l'honneur de transmettre ci-joint h Votre Excellence un exemplaire de

cette requête.

I'euillez agréer, etc.,

II. THE YINISTER OF EXTERNAI. AFFAIRS OF SOUTH AFRICA TO THE

REGISTRAR

3 Decernber 1960.

Sir,

1 havc the honour to refer to the applications filed by the Govern-

ments of Ethiopia and Liberia to institute contentious proceedings

against the Union of South Afnca in the International Court ofJustice in

respect of South tl7cst Africa arrclto certify and declare, in terms of

Article 35 of the Rules of Court of the International Court of Justice-

' La marne communication a ét&adressée à touslesautres Etats Membres des

Xations Unies et une cornmunication analogua étéfaite au sujet la requëte du

Gouvernemcnt du 1,ibEriri.

La même comnlunication a étéadressée aux autres Etats niin membres des

Xations Unies qui sont parties au Statut de la Cour, ou aulauCour est ouverte

aux termes de l'article 35, paragra2,du Statut et unecommunication analogue

a étéfaite au sujede larequête du Gouvernement du Libéna.gr6 SOUTH WEST AFRICA

I. that the Government of the Union of South Afnca have been duly

notified that such applicationshavebeen iiied;

2. that the addreçs for service to which al1 cornmunications relating to

the said applications and proceedings shall be sent shall be thEm-

bassy of the Union of South Africa at The Hague;

3. that 1have appointed

Dr. Joan Philip VERLORE VAN THEMAAT

agent of the Union of South Africa in respect of the said applications

and proceedings;

4. that the Government of the Union of South Africa reserves the right

to appoint one or more additional, alternate or deputy agents at any

time hereafter iirespect of the said applications and proceedings, as

it considers ex1ii:dient.

1have the honour to state further that the foregoingacknowledgernent

of notification and appointment of the said Dr. verLoren van Themaat

as Agent of the Union of South Africa is made irrespectiveof the ques-

tions as to whether the InternationalCourt of Justice has ang jurisdic-

tion in respect of siich proceedings or not and asto whcther the applica-

tions of the Governrnents of Ethiopia and Liberia are in any respect

justifiedor not.

1have, etc.,

(Signed) EricH. LOEW.

12. THE AMBASSADOR OF LIBERIA TO THE NETHERLANDS TO THE

KEGISTRAR

19December 1960.

Sir,

I have the honour to advise that the Governments of Liberia and

Bthiopia will deposit onIj April1961 their Mernorials re the application

instituting proceedings before the InternationaCourt of Justice against

the Governrnent of the Union of South Africa conceming the interpreta-

tion and application of the Mandate for South West Africa.

Sincerely yours,

(Signed) Joseph GRAHAM. CORRESPONDENCE 5*7

13. THE AGENT FOR THE COVERNMEKT OF SOUTH AFRICA TO THE

REGISTRAR

31 December 1960.

Sir,

I have the honour to submit the following views on behalf of the

Government of the Union of South Africa.

The rgth Aprilr961, thedate proposed by the Governments of Liberia

and Ethiopia for the filing of their AIemorials, is acceptable to us.

It is respectfully submitteci that in the light of the following con-

siderations a lengthp period of time will be required for the preparation

of the Counter-Mernorial of mji Government. Although it is not possible,

at this stage, to Say with anjr certainty what this period wili be, it is

estimated that a period of at least IO to 12 months after the Applicants

have filed their hlemorials wiil not be unreasonable.

The Applications of the Governments of Ethiopia and Liberia cover

an extremely wide field. These Applications deal not only with a number

of intricate legal and constitutional points but alço with a large number

of factual questionsrelating tu almost every facet of the administration

of the Territory of South West Africa over a period of 40 years. Indeed

it ismy subrnission that no case so far dealt with by the International

Court of Justice has had so wide a scope and contained so many ques-

tions of fact and law.

(a) In regard to the scope of the factual issues, the attention of the

Court is respectfully directed, inter alia, to the foUowing questions

raised in the Applications:

(i) the provision, control and regulation of residence and housing

(paragiaph 4 (e) (3),(7) and (13) of the Applications);

(ii) the regulation of labour (paragraph 4 (el (4), (5)and (6));

(iii)the administration, control and disposa1 of public land (para-

graph 4 (el(11) and (121 );

(iv) the various measures taken for the maintenance of law and

order (paragraph 4 (e) (8)-(I an) (14)-(17) read with para-

grapl14 (cl and fd));

(v)the provision and replation of education (paragraph 4 (e)

(vi) the provisions as regards political rights (paragraph4 (e) (1));

(vii) the ineasures taken in respect of different sections of the

population (paragraph 4 (b)). The scope of this question, in

itself, is extremely wide.

(viii) the measures taken to promote tothe utmost the matenal and

moral well-being and social progress of the inhabitants (para-

graph 4 (a) ). Thisquestion isalso very wide.

(b) The legal issues cover nurnerous problems which have evolved over

at least 40 years. Some of these problems are unique in ttiat no

judicial pronouncements exist in connection therewith.

(c) The very nature of the issues raised in the Applications, their far-

reaching and complex character which expands their scopc, will

necessarily rcquire extensive research into historical and legal

records extending over a period of more than 40 years. Furthemore518 SOUTH WEST AFRICA

many of the documents which will be required, particularly those

relating to the League of Nations, are no longer readily available.

(d) A plcading which covers al1the questions raised will no doubt bc a

Iengthy one and willmost IikeIy be accompanied by many annexures.

The printing of such a document will doubtless take çome time.

{e) In considering the question of tlie time now to be allowed to my

Governrnent for filing its Counter-hfemorial it is subrnitted that the

fact that the Applicants have had a long time to prepnre their case

should be borne in mind. On the other hand the first official intiina-

tion to my Government of the Applicants' intention to institute

legaï proceedi~igs was only received at the same time when the

applications were transrnitted toit, viz.on the 4th November 1960.

In this regard, itrnust be pointed out that the responsible Min-

ister and most of the officials concerned with this mattcr were at

that tirne abroad attending the General Asçemblp of the United

Nations.

In conclusion, 1 respectfully wish to statethat my Government con-

siders the allegations made against it in a very serious light. For this

reason, also, iisdr:sirous of ohtaining sufficient time to enable it to den1

properly and satisfactorily with the issues raised.

IVherefore I pray that the date which it may please the Honourable

Court to determine for the filing of the Counter-Mernorial of thGovern-

ment of the Union ofSouth Africa shall not be before the 15th February

1962.

Pleasc accept, etc.,

14. THE AGENT FOI*THE GOVERXMENTS OF ETHIOPIA AND LIBERIA TO THE

REGTSTRAR

(telegram)

6 January 1961.

.Have received your letter 3 January enclosing request of Agent of

South Africa for leave to file Counter-hlemoriai South West Africa case

"not before 15 Febmary 1962" n view of Respondent's desire for so

long a delay we respectfully request opportunity for a meeting pursuant

Article 37,Rilles ofCourt. ive wish toCO-operatewith Court in assisting

find bala~icebet~veeninterest ofApplicants in expeditiouç determination

grave issues presented and nght of Respondent to have adequate oppor-

tunity to rnet:t allegations. Kespectfully, Ernest A. Gross. CORRESPONDENCE 519

15. THE RHGISTRAR TO THE AGEST FOR THE COVERShlEFT OF ETHIOPIA

13 January 1961.

Sir,

1 have the honour to refer to the Application instituting proceedings

in the Sotcth IlVestAfrÉccrcase (Ethiopia v.Union of South Africa) and

to the President's interview today with the Agents for the Parties *,and

to inform you ttiat, having ascertained the views of the Parties, the

President lias, by Order of today's date 3,fixed the following time-limits

for the filing of pleadings:

For the hiemorial of the Ethiopian Government: 15April 1961;

For the Counter-Mernorial of the Government of the Union of South

Africa: 15 December 1961.

The subsequent procedure has been reserved for further decision.

The officia1copy of the Order for the Government of Ethiopia wiIl be

despatched to you in due course.

1have, etc.,

16. THE MINISTER OF EXTERNAL AFFAIRS OF SOUTH AFRICA TO THE

REGISTKAR

18 January 1961.

Sir,

Ihave the honour to refer to my letter of 3 December rg60, whcrein 1

notified you of the appointment of Dr. J. P. verLoren van Themaat'as

Agent of the Union of South Africa in the contentious proceedings

instituted by the Governments of Ethiopia and Liberia concerning South

West Africa.

Pursuant to paragraph 4 of that letter, in whicli 1intimated that the

Government of the Union of South Africa reserved the right to appoint

an additional Agent, I now have the further honour to inform you that

1 have appointed

Bfr. Ross MCGRECOR

as such additional Agent of the Union of South Africa in respect of the

said Applications and Proceedings.

The appointment has been niade subject to the same provisions stated

in the last paragraph of my letter of 3 Decernber 1960.

1 have, etc.,

For Minister of External Affairs.

(Signedi

Secretary for External Affairs

1 A siniilar communicationas sent tothe Agent for the Governmenof Liberia

in respecoftlieApplicationfileby his Government andthesame cornmun~cations

werc senttotlicAgent for the Governrnent of South Africa.

SeeXo, 5g,p. 546.para,113. iufra.

I.C.J. Repor1961. pp. 3and6.520 SOUTH WEST AFRICA

Sir,

Reference is made to the Applicatioii of the Government of Ethiopia

in the case of SozsthW.estAjrica.

In accordancc with the order of 13 January 1961, by which the

President of the Court has fixedtirne limits for the filing of pleadings in

this case, the ~~ernorialofEthiopia wilbe filed on or befor15 April1961.

The purpose of this letter isto notify the Registry that the Covern-

ment of Ethiopia reserves the right, pursuant to ArticIe31 of the Statute

of the International Court of Justice and of Article 3 of the Iiules of

Court, to choose a Fiersonto sit as Judge in this case.

Pursuant to Article 3, paragraph 1, of the Rules of Court, it is respect-

fdly requested that the President of the Court fixa time-limit within

which the Government of Ethiopia may notify the Registry of its inten-

tion to exercise its right to chooaeJudge under Article 31 of the Statute

and may state the iiame ofsuch person, when and if chosen.

The undercigned will bc grateful for your acknowledgrnent of the

receipt of this request and an indication that the procedure suggested

herein is acceptable to the Court.

Very tmly yours,

(SignedlErnest A. G~oss.

15 April 1961.

Sir,

Inaccordance with Article 43 of the Statute ofthe International Court

of Justice and Article 41 of the Rules of Court, and in cornpliance with

the order of 13 January 1961 by xvhich the President of the Court has

fixed time-lirnits for the filing of pleadings in SouthWest Africa case

(Ethiopia v.Union of South Africa), we have the honour to present

herewith the Memorial of the Government of Ethiopia 2.

Pursuant to Article 43 ofthe Rules of the Court, copies of al1the rele-

vant documents, or estracts therefrom, have been communicated to the

Registrar for use of the Court and of the other Party. A list of such rele-

vant documents iç gjven after the submiçsions, in accordance tviviththe

requirements of Article 43.

Very truly yours,

(Signed) Tesfaye GEBRE-EGZE'.

(Signed) Ernest A. GROSS.

' A similar corninunicatio\vas sentto the Registrarby the Agent for the

Governrnent of Liberi:l.

See1,pp. 32-ar1. CORRESPONDENCE PX

19. THE RECISTRAR TO THE LECAL ADVISER OF THE DEPARTMENT OF STATE

OF THE UNITED STATES OF AMEIUCA

19April 1961.

Sir,

With reference to your letter ofIO November 1g60,I have the honour

to inform you that, the Partiesin theSouth WestAfric aases (Ethiopia er.

Union of South Africa and Liberia y. Union of South Africa) having

indicated that they have no objection to the pleadings in these cases

being made available to the Government of the United States of America,

it hasbeen decided under Article 44,paragraph 2, ofthe Rulesof Court,

that the documents in questionshalI be made available to that Govern-

ment.

1 am therefore enclosing copies of the only Pleadings filed so far in the

cases and would draw your attention to the confidential character of

such pleadings as long as the case is subjudice.

I have, etc.,

20. THE RECISTRAR TO THE AGEKT FOR THE GOVERNYENT OF ETHIOPIA

24 May 1961.

Sir,

I have the horiour torefer to the letterof 28 March 1961by which I

was notified that the Governmiznt of Ethiopiareserved the right, pursuant

to Article31 of the Statute and Article3 of theRules of Court, to choose

a person to sit as Judge in theSouth West Afrz'cacase (Ethiopia v. Union

of SouthAfrica), and in which it \vas requested that a time-limit be fmed

within which the Government of Ethiopia might notify the Registry of

its intention to exercise the right to choose a Judge under Arti31cof the

Statute and state the name of such person, when and if chosen.

Your letter was immediatel pylaced before the Court which haç now

had an opportunity to discuss it in conjunction with a similar request

submilted on behalf of the Government of Liberia in the South West

Africa case (Liberia v.Union of South Africa).

After deliberation, the Coui-t, by an Order dated 20 May 1961 3,has

joined the proceedings institutedby the Applications of the Government

of Ethiopia and the Government of Liberia and found that the Govern-

ment of Ethiopia and theGovernment of Liberia are in the same interest;

ithas fixed15 November I 61 as the tirneJimit urithin which the Guvern-

ment of Ethiopia and the 9;ovi:rnmeritof Liberia, acting in concert, may

choose a single Judge ad hoc.

l A similar communicatiowas sent to the Governmentofthe United Kingdom

(24hpril 1962)Israel(IISeptember 1962),Chile(1IApril1963)~Canada (3March

1964)and the United Arab Republic (1July 1904).

and SouthaAfrica.nications were senttheAgents fortheGovernments of Liberia

' I.C.J. Reports 1961,13.522 SOUTH WEST AFRICA

1 have tlie honour to enclose herewith the officia1copy of this Order for

the Government of Ethiopia. Further copies will be despatched to you

when printed.

1 have, etc.,

21. THE AGENT FOR THE GOVERXMENT OF SOUTH AFRICA TO THE

REGISTRAR

9 June 1961

Sir,

1 have the Iionour to acknowledge receipt of your letters Nos33730,

33731 and 33734 of24 May 1961, the annesed letters from the Agent of

the Governments of Liberia and Ethiopia of 28 hlarch 1961, and the

Order of 20 May 1961.

These letters and Order were received by me on 3 June 1961, and, as

the notifications by the Governments of Ethiopia and Liberia of 28hlarch

1961 ,ad not been comrnunicated to me before, itwas only on that date

that 1 became aware of their contents. The competent South African

authorities were therefore note~iabled to submit their views before the

Order was made, as they were entitled to do in terms of Article 3 (1)

of the Rules.

Furthermore, it wouid appear that the purview of Article 3 of the

Rules was exceedetl in that, whereas the said Article requires the Appli-

cants to decide prior to the time-limit fixed for the filing of the mernorial

whether they will (:hoosan ad hoc judge, the effect of their request of

28 March and the Order made pursuant thereto isto enable them todefer

their decision until sorne seven months later.

As the Govemment of the Kepublic of South Africa is now faced with

a fait accompli,I am directed to draw your attention to the foregoing

and to enquire whether there were any special circumstances which led

to these apparent departures from the Rules. It is not Our intention to

raiçeany forma1objection to the Order, but my Government is naturally

ansious to ensure that it will be informed timeously of any procedural

matters whereby its interestsmay be affected.

1also note that both Orders, of13January and 20 May 1961 ,efer to

a "dispute concerning the interpretation and application of the Mandate

of South West Africa". 1assume that these words are employed merelv

by way of descriptive reference tothe allegationinthe Applications and

Mernorials of the Governments of Ethiopiaand Liberia and not as signi-

fying that the question whether such dispute esists could not be in

issue in the proceedings.

Ihave, etc., CORRESPONDENCE 523

22. THE ACTING REGISTRAR TO THE AGENT FOR THE GOVERYMENT OF .

ZOUTH AFRICA

15June 1961.

Sir,

I have the Iionour to acknowledge receipt of the letter of g June 1961

in which $ou refcr tothe Order made by the Court on zo May 1961 in the

South TVes,A!fricacases (Ethicipia v. liepublic of Soiith Africa; Liberiv.

Republic of South Africa).

In accordance with Article 3 of the liules, the Court in that Order

fixed a time-limit within which the Government of Ethiopia and the

Government of Liberia, acting in concert may choosc a single Judge ad

hoc. In so doing it intendcd neither to depnve the Government of the

Republic of South Africaof its rights under the Rulcs nor to prejudice in

any way tlie exercisc of such rights.

Itis noted that it isnot your intention to raise any formal objection to

the Order of the Court. The Government of the Republic of South Africa

will in due course have ample opportunity to submit its views on any

choice made by the applicant Governrnents, acting in concert, within the

time-limit laid down in the Oriier. Thcse views will not be limited to the

identity of any person so chosen but will be cntirely at Iarge.Tt is the

intention of the President, if such a choice be made by the Applicants,

to fisa time-lirnit within which the Government of the Republic of

South Airica may submit its views in accordance with paragrapli I of

Article 3.

You statc that the competent Soutli African autlioritieswere prevented

from suhmitting their views brfore the Order was made on 20 May 1961,

and indicate that this constituted a departure from the Rutes, in parti-

cular from Article 3, paragraph 1, tliereof, any011 ask whether this was

the result of any special circumstances. 1 would point out in the firçt

place that the provision to which you refer in no way requires that the

fixing of tlic time-limit first meiitionccl therein should be delayed urltil the

other party should have submitted its views.

In the second place, 1 would draw your attention to the fact tliat in

making its Order of 20 blny 1961 the Court was concerned ~4th the appli-

cation of paragraph 2of Article 3 and in fact fixed a time-limit for the

choice of a single Judge ad hocby the two Governments. Tliere would

appearto be evident advantages in giving you an opportunity to espress

your views after, rattier than before, tiiat decision had beentakcn. Itis

clear that if no choice be made by the applicant Governments, acting in

concert, the Republic of South Africa cannot in any \ilay be prejudiced.

In the event of such a choice being made, it will be irnmediately com-

municated to you. If, after pou have submitted yorir views, any doiibt or

objection should ürisc, tlie decision, in accordance witli the last seiltence

of paragraph I of Article 3,shall rest with the Court, ifnecessary after

hearing the Parties.

In conclusion on tliis point, I am directed by tlie President to assure

you that the Court's chief concern is that in al1matters there should be

complete ccluality between the Parties. When the time comcs for the

Government of the Republic of South Africa to reach a decisioii con-

cerning the choice of a Judge ad hoc, anp wishes it may express as to

tirne-limits to be fixer1will be fully taken into consideration.524 SOUTH WEST AFRICA

......... ......a .............

FinalIy, 1 would inform you that your assumption, expressed in the

last paragraph of your letter, with reference to the words there clted, is

entirely correct. In accordance with the common practice of the Court,

the general words used to describe the nature of the case referred to it

are taken from the letters of transmittal of the Applications refemng

the case to the Court. The employment of these descriptive words

prejudges no issue between the Parties.

1 have, etc.,

4 October 1961.

Sir,

1 have the honour to refer to the Order of zo May 1961in the South

WestAfrica casewhereby the Court fixed 15 November 1961as the time-

lirnit within which the Government of Ethiopia and the Government of

Liberia, acting in concert, may choose a single Judge ad hoc.

On the assumption that the aforesaid Governments may, on or before

15 November 1961 ,ominate a Judge ad hoc, it would be appreciated if

you would inform me whether my Government will have to nominate a

Judge ad hoc on or before the date that its first pleadings are filed or

whether my Government need only reserve a right to do so and give its

final decision on the matter and the name of the person chosen within a

time-limit to be fixed by the President in terms of Article 3 ofthe Rules.

On the other hand, should the Government of Ethiopia and the

Government of Liberia, acting in concert, not choose a Judge ad ?wc

within the time-limit fixed by the Court, kindly inform me up to what

time my Governmcnt may exercise the right to choose a Judge under

Article 31 of the Statute. ln this event would the Government of Liberia

and the Covernment of Ethiopia again be accorded the right to choose

a Judge ad hocwitliin a further tirne-limit to be fixed?

1 have, etc.,

24. THE AGENT FOR THE GOVERNMENTS OF ETHIOPIA AND LIBERIA TO

THE KEGlSTRAR

II October 1961.

Sir,

I have the honoirr to refer to the Order of the International Court of

Justice, dated 20 May 1961i, n which the Court fixed 15 November 1961

as the date within which the Governments of Ethiopia and Liberia,

acting in concert, exercise their right to choose a single ad hoc Judge to sit

in the South West Africa cases. CORRESPONDENCE 525

This isto advise the Registry that Ethio ia and Liberia are prepared

to waive their right to appoint a Judge a a hoc to sit in the SoutWest

Africa cases, provided, however, that the Union of South Africa make a

similar waiver. In the event t:hat the Union of South Africa chooses a

Judge ad hoc, or signifies its intention to do so, Ethiopia and Liberia

hereby advise the Court of their intention to do likewise and hereby

respectfully request the Court to grant them permission to do sowithin

suitable time-limits to be prescribed by the CouIn.making this request,

it isthe intention of Ethiopia and Liberia to assure that a situation will

not arise in which the Court would be sitting with a Judge ad hoc from

one of the Parties only.

We request you to transmit this communication to the Members of

the Court and to the other Party.

Confirmation that the foregoing procedure is acceptable tothe Court

would be appreciated.

Very truly yours,

(Signed) Emest A. GROSS.

12 October 1961.

Sir,

1have the honour to acknowledge receipt of your letter, da4eOctober

1961 and received in the Registry onII October 1961, in which you refer

to the Order made by the Court in the SouthWest Africa caseson 20 May

1961, which fixed 15 Novcrnber 1961 as the time-liniit withiwIiiçhthe

Government of Ethiopia and the Government of Liberia, acting in

concert, may choose a single Judgead hoc.

You ask, in the first place, on the assumption that the applicant

Covernments may nominate a Judge ad hoc within that tirne-limit,

whether your Government will have to nominate a Judge ad hoc on or

before the date that its first yleadings are filed or whether your Govern-

ment need only reserve a right to do so and give its final decision on the

matter and the name of the person chosen rvithin a time-limit to be

fixed by the President in ierms of Article 3 of the Rules.

In re ly to this question, 1have the honour to point out that Artic3e

of the 8ules does not require that the name of a person chosen to sit as

Judge shall be communicated within the time-limit fixed for the filing of

the first pleading. That date, under the Article, is relevant to the state-

ment of theParty's intention. Since the Court was ready to accept the

reservation of the right by the applicant Covernments as sufficient

cornpliance rvith the requirements ofthe Rules and fixed the time-limit

within which a Judge ad hoc may be chosen, it may be concluded that,

should your Governrnent wish to adopt a similar course, it wibe per-

mitted to do so. In this connection, 1 have the honour to refer to my

letter of15 June 1961, in which I informed you that the President had5z6 SOUTH it7EST AFRlCA

directed me to assure you that the Court's chief concerii was that in al1

matters there should be complete equality bctween the Parties.

You ask, in the second place, to be informed up to ivhat time Sour

Governmcnt nlay exercise the right to choose a Judge under Article 31

of the Statute should the Government of Ethiopia and the Governrnent of

Liberia, acting in concert, not choose a Judge ad hoc ~vithin the time-

limit fised by the Court.

Ihave the honour, in reply to this question, to state that the failure of

the applicant Governments to choose a Judge ad hoc within the time-

limit fixed by the Order of 20 May 1961 would not affect the time-

limits applicable to thc Government of the liepublic of South Africa.

Finally, yoiiask whether, in the eventuality conternplated in ).Our

second question, tlie Government of Liberia and the Government of

Ethiopia ~ould again be accorded the right to choose a Judge ad hoc

within a furtlier tirne-limitu be fised.

In reply to this question, 1 have the horiour to refer you to the

Nottebohm case (Liechtenstein v. Guatemala) in the second phase of

which a situation arose similar to that which )'ou envisage; no action

with reference tothe choice of a Judge ad hoc was taken by the Applicant

at the time of the filing of the Mernorial (3 June 1952). The Kespondent

having, within the tirne-limitfixed for the filing of the Counter-hlemorial

(20 April 1954). designated a person to sitas Judge ad hoc,the Agent for

the Government of Liechtenstein informed the Kegistrar that this

nomination left the Governrnent of Liechtenstein with no alternative

but to esercise, in their turn, their right to nominate a Judge ad hoc

and tliat a name ~rrouldshortly be submitted to the Court in this con-

nection. .4t the same time the Agent indicated that it had not been the

original intention of the Governrnent of Liechtenstein to nominate a

Judge ad hoc and tliat that Government was willing to refrain from

notninating a Judge on tlie condition that the Government of Guatemala

withdrem tlieir riornination and made no other. The latter Government,

not having acted upon this proposal, the Government of Liechtenstein on

26 July 1954 notified its choice of a Judgad hocwho in due course sat to

consider the case.

Tlieright conferred by Article31 of the Statute is an absolute one

wliich affects the composition of the Court and the equality of the Parties.

Accordingly the provisions of Article 3 of the Rules could never be

interpreted by the Court in sucli a way as ta frustrate tlieobject of the

Statute by introducing inequality as between tlie Parties. The Nottebohm

case serves to illustrate the principle in accordance with which the Rule is

applied.

In these circumstances it will be clear that the yossibility can be

evcluded of tlie Court's sitting with a Judge ad hocchosen by one Party

only while tht: other Party was desirous of choosing a Judge ad hoc and

ready to do so.

Copies of your letter and of the present reply are being sent to the

Agents for the Governmerits of Ethiopia and Liberia.

1 have, etc., 26. THE AGENT FOR THE GOVERSMEST OF SOUTH AFRlCA TO THE

RECISTRAR

8 November 1961.

Sir,

1 have tlie honour to ackno~vledge receipt of your letter No34436 of

17 October 1961,with annexurel, and to adviseyou that, after due con-

sideration, the Government of the Republic of South Africa has decided

to exercise its right under Articleof1the Statuteof the Court.In terms

of Article 3ofthe Rules ofthe Court, I thereforehave the Iionour to

notify you that it is my Government's intentiontochoose a Judge nd laoc.

The naine of the person chosen to sit asJudge will be stated in due

course.

In the circumstances, my Government will notaccede to the proposal

contained in the annexure to your letter of17 October 1961.

1have, etc.,

27. THE AGENT FOR THE GOVERNMENTS OF ETRIOPIA AND LIBERIA

TO 'CHE REGISTRAR

(telegram)

14 November 1961.

Pursuant to Court Order 20 May 1961 fixing15 November 1961 as date

within which Ethiopin and Liberia, acting in concertmay exercisc right

to choose single adhoc Judge to sit inSouth West Ajrica cases, Court is

hereby advised that said Governments, while reaffirming their willingness

to waivc such right subject to Government of Union of Soutli Africa

doing likewise, designate The Honourable Joseph Chesson of Liberia

to sit as Judge ahoc.In making this deçignation Governments concerned

reserve right to replace Mr. Chesson with another qualified jurist if in

their opinion circumstances so require.

SeeXo. -4,p.524.supra. 553 SOUTH WEST AFRICA

28. THE DEPUTY REGISTKAR TO THE AGENT FOR THE GOVERNMENT OF

SOUTH AFRICA

15November 1961.

Sir,

- 1 have the honour to inform you that the following telegram, dated

14 November 1961, has just been received in the Registry from the Agent

for Liberia and Ethiopia in theSouthWest Africa cases:

[SeeNo. 27, P. 527,supra]

1 have the further honour to inform you that the President has

fixed 15December 1961 asthe time-limit within which the Government

of the Republic of South Africa may submit its views to the Court in

accordance with the provisions of Articl3 of the Rules of Court.

1 have, etc.

29. THE AGENTFOI< THE GOVERNMEKTOFSOUTH AFRICATOTHE REGISTRAR

17November 1961.

Sir,

With reference to your letter No. 34571 of 14 November 1961 and

further to rny letterNo. 1/18/15/4 of 8 November 1961, 1 have the

honour to notify you that the Governrnent ofthe Republic of South

Africa has chosen The HonourabIe Jacques Theodore van Wyk, Judge of

the -4ppellate Divisionof the Supreme Court of South Africa, to sit as

Judge ad hocin terms of Article31 of the Statuteand Article3 of the

Rules of Court. Mr. Justice van Wyk's c~irricuEumvitae will follow

hereafter.

1have, etc.,

17 November 1961.

Sir,

1have the honour to inform you that by a letter dated17 November

1961 the Agent for the Government of the Republic of South Africa in

the SotrfhWest Afrz'cacases has informed me that his Government has

chosen The Honourable Jacques Theodore van llryk, Judge of the

ApelIate Divisioncifthe Supreme Court of South Africa to sias Judge

lThe same communicationwas senttothe Agent for the Government of Liberia. COKKESPONDENCE 529

ad hoc intern~s of Article 31 of the Statutand Article 3 of the Rules of

Court.

1 have the further honour to inform you that the President of the Court

has fixed 18 December 1961 as the time-lirnit bvithin which the Govern-

ment of Ethiopia may submit its views to the Court in accordance with

the provisions of Article 3 ofthe Rules of Court.

1 have, etc.,

30 November 1961.

Sir,

In reply to the Memorials filed by the Governments of Liberia and

Ethiopia on 15 April 19611 , have the honour to file herewith the Pre-

lirninary Objections1 ofthe Governrnent of the Republic of South Africa.

In accordance with Article 43 of the Rules of Court, documentation not

available in one of the two Libraries in the Peace Palace is also filed.

According to the Librarian ofthe Court, the only authoritiesnot available

are the Senate Debates, I 56, and The Republic of South Africa Con-

stitution Act,No. 32 of 198 I.These have been filed in Folder No. 7.

For the convenience of the Court, photostatic extracts have been made

of League of Nations and United Nations publications quoted, as well as

of certain of the articlesn periodicals quoted. If imight be considered

convenient, we would gladly make photostatic copies of any or al1

authorities referred toA translation in English of the relevant parof a

Dutch and an Afrikaans publication referred to has also been supplied.

The documentation is contained in folders. A resurnéof the contents of

each folder is attached2.

1have, etc.,

32. THE REGISTIIAR TO THE AGENT FOR THE GOVERNMENT OF ETHIOPIA~

5 December 1961.

Sir,

1 have the honour to refer tomy letter of I December 1961 and to

iiiforrnpu that liy an Order4 of today's date the President ofthe Inter-

national Court of Justice has fixed I March 1962 as the time-limit

See1.av.212-a16

Sot reproduced.

Thesame communication \vassentto the -aentfor the Governments ofLiberia

and SouthAfrica.

+ T.C.J. Reports 19p. 61.53O SOUTH WEST AFRlCA

within which the Governments of Ethiopia and Liberia ma). file a

written statement of their Observations and Submissions with regard

to the Preliminary Objections raised by the Government of the Republic

of South Africa in the South WestA#ricn cases.

1 shall send you in due course the official copy of tlie Order for ),Our

Government .

I have, etc.,

Sir,

1 now Iiave the honour to inform you that the time-limitfixedby tlie

President having expired witliout any objections having been raised bqr

the Government of the Republic of South Africa to the designation of

The Honourable Joseph Chesson, 1am sending him the file of the case,

in his capacity as Judge ad hoc.

I have, etc.,

THE REGISTRAR TO THE ACEST FOR THE GOVERXMEST OF SOUTH

34. AFRICX'

Sir,

1 now have the honour to inform you that the tirne-lirnit fixed by the

Preçident having expired without any objections having been raised by

the Governmt:nts of Ethiopia and Liberia to the designation of Tlie

Honourable Jacques Theodore van Wyk, I am sending him the file of

the case,in his capacity as Judge ad hoc.

1 have, etc.,

Thosame communication wassent to the Agentforthe Governments of Liberia

and South Africa.

2 The same commiinication was sent to the Agents for the Governments of

Ethiopiaand Liberia. CORRESPONDENCE 53I

35. THE SECRETARY OF BTATE OF LIBERlA TO THE REGISTRAR

zo December 1961.

Dear Sir,

1 have the fionour to refer to letteNo. I.C.J.-64r-'60 of4 November

1960, sent to you by the Liberian Ambassador at The Hague and your

reply to lii~nNo.32547\VT/nps dated 5 November 1960 w.ith regard to

the Agents of Liberia inthe proceedings before tlic InternationalCourt

of Justice relatingto a dispute ~vith tlic Covernment of the Uriion of

South Africa coricerning the iriterpretalion and application of tlMan-

date for South \{'est Africa.

1have the honour to notifp you further of the appointrnent of Honour-

able Josepli J,F.Chesson, Attorney General of the Republic of Liberia,

as Agent in succession ttHonourablc Joseph \ar .nrber.

\Wh sentiments of esteeni,

36. THE AGENT FOR THE GOVERKMENTS OF ETHIOPIA AXD LIBERIA

TO THE REGISTRAR

8 January 1962.

Sir,

Keference is niade to the Order of the Court dated 20 May 1961

relating to the right of Ethiopia and Liberia to choose a single adhoc

Judge to sit in the South West Africa cases, aiid to the cable dated

14 Novemher 1961 to the Registrar from the undersigned as Agent for

Liberia niicl Ethiopia, advising that the said Gnverntnents desired to

designate The Honourable Joseph Ciieçson of Liberia to sit as Judge

ad hoc.The attention of the Court isrespectfully called to the reservation

by the aioresaid Governtnents of the right to replace >Ir. Chesson with

another qualified jurist if circurnstances in their opiiiion should so

require.

Tliislettcr is to inform the Court that circumstances have arisen which

make it appropriate in tlie opinionof the Governrnents of Ethiopia and

Liberia to designate His Excellency Sir Muhammncl Zafrulla Khan of

Pakistan as Judge ad hoc to sit in theSorrth West Africa cases in the

place and stead of the Honoixrable Joseph Chesson of Liberia, ulhose

designatioii is hereby withdrawn.

Tt is the liope and expcctation of the Governments of Ethiopis and

Liberia that Sir Zafriillah Khan rvisit as radhoc Jiidge fothe durat'on

of thjs proceedings.

The Court is respectfully requested to take such action as is necessai

to give effect to this deçignation, including such noticeas may be re-

quired pursuant to Article 3ofthe Kules of Court.

The curricz~lumv. itaof Sir Zafrulla Khàn is nlready available to the

Court by reason of his hnving served as a Judge of the Court. It only

rernainç to be added that Sir Zafnilla Khan isat the present tirni: Per-532 SOUTH WEST AFRICA

manent Representative of Pakistan to the United Nations, with offices

at Pakistan House, 8 East 65th Street, New York 21, New York.

Respectfully submitted,

(SignedJ Ernest A. GROSS.

37. THE REGISTRAR TO THE AGENT FOR THE GOVERNMENT OF SOUTH

AFRICA

15 January 1962.

Sir,

1have the honour to send you herewith a certifietruecopy ofa letter

dated 8 January 1962 which was received in the Registry on13 January

1962 from the Agent for the Governments of Ethiopia and Liberia in the

South West Afvica cases.

1have the furthcr honour to inform you that the President ha5 fixed

15 February 1962 as the time-lirnit within which the Government of the

Republic ofSouth Africa rnay submititsviews to theCourt in accordance

with the provisions ofArticle3 of the Rules of Court with regard to the

designation of His Excellency Sir Muhammad Zafrulla Khan to sit as

Judge ad hoc.

1have, etc.,

38. THE AGENT FOR THE GOVERNMENT OF SOUTH ;ZPRZCA TO THE

RECISTIWR

23 February 1962.

Sir,

1 have the honour to refer to the Order o5 December 1961 , hereby

the Court detemined 1 hlarch 1962 as the time-limit within which

Ethiopia and Liberia might file their observations in teoi Rule62 (3).

1 assume that aiter receipt of such observations, the Court will con-

siderthe fixing of a date for the commencement of oral proceedings

regarding the Prelirninary Objections. hfy Governrnent respectfully

requeststhe Court to deferitsdecision in that regard for a short period,

say 14 days, after receiptof the Applicants' observations, in order to

allow an opportunity for possible representations concerning the further

proceedings. Before receipt of the observations, it willbeopossible for

my Governrnent to decide whcther it will be necessary or desirable to

make such representationç, e.g.as appears to bc contemplated by Rule

62 (4)for leave tofilefurther written replies ordocuments. The Court

might wish to take this into consideration in.determining the date of

commencement of the oral proceedings.

I have, etc., CORRESPONDENCE 533

39. THE AGENTS FOR THE GOVERNMENT OF ETHIOPIA TO THE REGISTRAR '

I March 1962.

Sir,

In accordance with Article62 of the Rules of Courtand in cornpliance

with the order of 5 December 1961by which the Court fixed the time-

limit for the filing of Ethiopia's writtstatement of its Observations

and Submissions ~vithregard to thePreliminary Objections raisedby the

Governrnent of the Republic rrfSouth Africa in the South West A frica

cases, we have the honour to present herewith the written Observations

of the Governrnent of Ethiopia

Pursuant to Articl43 of the Rdes of Court, copies of al1the relevant

documents, or extracts therefrom, have been communicated to the

Registrar for use of the Court: and of the other Party.A list of such

relevant documents isgiven after the submissions, in accordancewith

the requirements of Article 43.

Very tmly yours,

(Signal) Tesfaye GEBRE-EGZY.

(Signed Ernest A. CROSS.

40, THE AGENT FOR THE GOVERNXIENTSOF ETHIOPIA AND LIBERIA TO THE

REGISTRAR

(telegram)

3 March 1962.

Applicants South West Africa cases reserve right to object in event

Republic South Africa requests privilege file further pleadings pnor to

hearing .

Erneçt A. GROSS.

41. THE AGENT FOR THE GOVERNMENT OF SOUTH AFRICrl TO THE

REGISTRAR

14 March 1962.

After consideration of Applicants' Observations my Government does

not consider it necessary at present stage tmake representations con-

cerning further proceedings. At a later stage, howevemy Government

will probably seek to submit further documents under rule 48 but it is

unlikely thatthese will bof major extent.

l A similar communicatiowaç sent tothe Registrar by the Agent for the

Government ofLiberia.

See 1pp.41 7-489.534 SOUTH WEST AFRICA

42. THE AGEXTS FOR THE GOVERNMEXTS OF ETHIOPIX AND LIBERIA TO THE

IZECISTRAR

24Xay 1962.

Sir,

Reference ismade to the Orùer of the Court dated 29 3lay 1g61

reIating to the right of Ethiopia and Liberia to choose a single ad hoc

Judge to sitin the South West Africa cases. In a communication to the

Registrar, dated 8 January 1962, the Governments of Ethiopia and

Liberia designated Wis Excellcncy Sir Mohammad Zafmllah Khan to

sitas Judge ad hoc.

The Agents for Ethiopia and Liberia have been informally advised

that SirMohammad Zafrullah Iclian is unable tosit as Judge ad hoc in the

South West Ajrica cases, and that the Court has been so inforrned.

Pursuant to the Order of the Court dated 20 May 1961, the Govern-

ments of Ethiopia and Liberia hereby designate SirAdetokunbo A.

Ademola, Chief Justice of the Federation of Nigeria, as Judge ad hoc

to sit in tlSouth WestAfviccr cases in the place and çtead of Sir 3Ioham-

rnad ZrifrullahKhan, whose clesignation is hereby withdrawn.

The cz~vriculum vitae of Chief Justice Sir -4detokunboh A. Ademola is

enclosed l.

Respectfully sutirnitted,

(Signedl Tesfayc GEBRE-EGZY.

(Signed) Ernest A. G~oss.

43. THE IZI!GISTRAK TO THE AGENT FOR THE GOVERXhIENT OP SOUTH AFRICA

2 June 1962.

Sir,

1 have the honour to refer tu my letter of 15 January rgG2 and to

inform you that by a letter of24 May 1962 the Agents for the Govern-

ments of Ethiopia and Liberia in the South West A/rica cases have

informed me that Sir hfuhammad Zafrulla Khan is unable to sitas Judge

ad hoc in these casr:and that the Governments of Ethiopia and Liberia

have designated Sir Adetokunboh A. Ademola, Chief Justice of the

Federation of Nigeria, to sit as Judge ad hoc in the place and sterid of

Sir Muhammad Zafrulla Khan, ir?hosedesigncition iç tvithdra~vn.

The Agents for the Governments of Ethiopia and Liberia have sent me

the czrrriczilavifaaof Chief Justice Sir Adetokunboh A. Ademola a copy

of which Ihave the honour to enclose herewith.

I have the further honour to inform you that the President has fixed

2 July 1962 as the tirne-limit within which tlie Government of the Repub-

licof South Africa may submit its vie~vsto the Court iraccordancewith

the provisions of Article of the Rules of Court withregard to the desig-

nation of Sir Adetrikunboh A. Ademola to sitas Judge ad hoc.

1 have, etc.,

Sot reproduced. CORRESPONDENCE 535

44. THE REGISTRXR TO THE AGEST FOR THE GOVERNMENT OF ETHIOPIA

2 July 1962.

Sir,

1 have the honour to inform you that the time-limit fixed by the

President having expired without any objections having been rnised by

the Govcrnment of the Republic of South Africa to the designation of

Sir Adetokunboh A. Aciernola, 1 am sending him the file ofthe case, in

his capacity as Judge ad hoc.

1have, etc.,

45. THE ACTING REGISTRAR TC) THE AGENT FOR THE GOVEKSMERT OF

ETHIOPIA '

24 July 1962.

Sir,

I am directed and I have the honour to inform you that thc date

provisionally fixed for the opening of the hearings on the Prelirninary

Objections in the Sottth !Test Africa cases (Ethiopia v. South Africa;

Liberia v. South Africa) is Monday, I October 1962.

It is expectecl that the hearings wil1begin on that date, but the pos-

sibiiity exists thatthe date may be slightlyaltered, by not more than

a day or two.

1shaII not fail tinform you as soan asa firm date is decided üpon.

1have, etc.,

46. THE ACEXT FOR THE GOVERNMENTÇ OF ETHIOPIA AKD LIBERIA TO THE

REGISTRAR

19 September 1962,

Court is respectfully advised Ethiopia and Liberia have designated

Sir Louis Mbanefo as Judge ad hoc in South West A frica cases. SirLouis

is Chief Justice of thHigh Court, Eastern Region of Nigeria. Any further

biographical material wi11be suppljed urgently.

Ernest A. GROSS.

The samc communication iraserit ttheAgents fothe Governments of Liberia

and South Africa536 SOUTH WEST AFRIC.4

47. THE REGISTRAR TO THE AGENT FOR THE GOVERNMENT OF SOUTH

AFRICA

19September 1962.

Sir,

I have the honour to inform you that the ~overnn&ts of Ethiopia

and Liberia in the South West Africa cases have designated Sir Louis

Mbanefo, Chief Justice of the High Court, Eastern Region of Nigeria, to

sitas Judge adhocin the place and stead ofSir Adetokunbofi A.Ademola.

1 have the further honour to inform you that the President has fixed

25Septembec 1962as the tirne-limit within which the Government of the

Kepublic of South Africa may submit its views to the Court in accordance

with the provisionsof Article3 of the Kdes of Court with regard to the

designation of Sir Louis Mbanefo to sit as Judgead hoc.

1have, etc.,

48. THE AGENT FOR THE GOVERNMENT OF SOUTH AFRICA TO THE

REGISTRAR

24September 1962.

Sir,

With reference to your letter No. 36674 of19September 1962, 1 have

the honour to advise you that the Government of the Republic of South

Africa willraise no doubts or objections in respecof the designation of

Sir Louis Mbanefo to sit asJudge ad hocin the SouthWest Africa cases.

1have, etc.,

49. THE AGENT FOR THE COVERKMENT OF ETHIOPIA AND LIBERIA TO THE

REGISTRAR

23 October 1962.

Sir,

At the close ofthe proceedings on 22 October 1962 l,after the Agent

for the Respondetit had arnended its Submissions, the Applicants re-

quested an opportiinity to consider whetherthe amendment to Respon-

dent's Submissions raised anew substantive issue astowhich the Appli-

cants would wish to subrnit comments.

During the course ofthe evening, you were good enough to advise me

that the Court is prepared, in the event Applicants deemed it necessary,

SeeVII,pp. 382-383- CORRESPONDENCE 537

to receive such comments, at a session of the Court on lVednesday,

24 October, at 10.30 a.m.

The Agent for the Applicants, having now had an opportunity to

review fully the Written and Oral Proceedings, as they rnight relate to

the issue thus rnised by Resporident, has reached the conclusion tliat no

further commetits are required.

It would be appreciated ifyou would convey this information to the

President of the Court.

Sincerely yourç,

(Signed Ernest A. G~oss.

50. THE REGIÇTRAR TO THE AGENT FOR THE GOVERNMEKTS OF ETHIOPIA

AND LIBERIA

23 October 1962.

Sir,

1have the honour to acknowledge the receipt of your letter of 23Oc-

tober 1962,in which you inforni me that, having considered whether the

amendment to tlie Respondenl:'~ Submissions raised a new subst:intive

issueas to which the Applicants would wish to submit comments, you

have reached the conclusion that no further comments are required.

A copy of this letterhas been transmitted to the Agent for theGoirern-

ment of the Republic of South Africa.

1 am instructed by the President of the Court to inform you that there

will be no further hearings in the South WestAfrica cases (Prelirninary

Objections) and that the oral procedure isclosed.

1 have, etc.,

51. THE REGISTRAR TO THE AC13Nl' FOR THE GOVERNMENTS OF ETHIOPIA

AND LIBERIA

17 December 1962.

Sir,

In accordance with Article 55 of the Statute, 1 have the honour to

inform you that the International Court of Justice will hold a public

sittingat the Peace Palace,The Hague, on ZI December 1962, at 4.30 a.m.

for the delivery of the Judgmcnt in the SottthWest Africa cases. Pre-

liminary Objections (Ethiopia v.South Africa; Liberia v. South Africa) 3.

1 have, etc.,

l A simitarcommunication wss sent to the Agent forthe Government of South

Africa.

The same communication was sent totheAgent for the Government of South

Africa.

I.C.J.Repo~ts1962,p.319.538 SOUTH WEST AFRICA

52. THE AGENT FOR THE GOVERSMEKT OF SOUTH AFRICA TO THE

REGIÇTRAR

19 January 1963.

I. In most cases that corne before the International Court, the issues

are of relatively limited extent. The Soda West Afvica cases, however,

cover an exceptionally wide field embracing virtuallp ail aspects of the

administration of South West Africa over a period of more than 40 years.

They may proyerly be describedas alargenurnber of cases rolled into one.

Chapters V to IX of the Applicants' Rlemorials (1,pp. 104-196 d)al

specifically withthe following:

(a) The well-being, social progress and development of the people of

South West Afnca in the following aspects:

(iT )he EconomicAsfiect

Agriculture

Industry-Fishing Industry

blining and MineraIs

12ailways and Harbours

Labour recruitment

1-abour Conditions

(ii)Governmentand Citizenship

Suffrage

Participation in Territorial Government

General Administration

Local Government

Government within the Native Tribes and Reserves

(iii)Security of llze Person, Kight of Residence alzd Freedom of

Moveme?tt

(iv) Edzrcation

Elementary and High School Educatioii

Vocational Training

Higher Education

Comparative Status of Teachers

Comparative Budgets

(b) Petitions and supplementary material concerning Government and

Citizenship, Civil Rights and Civil Libertics and Education.

(c) Alleged Militarization ofthe Territory.

(d) AlkegedCamozcflaged Apenexulbn of theTerriLory

(i) Confermerit of South Airican Citizenship upon inhabitantç.

(ii) Representation in the South African Parliament.

(iii) Administrative separation ofthe Eastcrn Caprivi Zipfel.

(iv) Vesting of Xative Reserve land in the South African Native

Trust and the transfer of Administration of Native Affairs to

the South African Minister of Bantu Affairç.

(e) AIIeged Unilateral Alteration ofthe Status of the Territory. 2. The Applicaiits' accusations agriinst Resyorident, with rcference to

the vanous subjects listed above, are concerned in part with standards of

development that have or have not been achieved, and in part with

allegcd motives involved in the policies adopted by Respondent in the

Administration of South West Africa.

These featureç of the accusation necessitate a broad and full responçe

extending beyond the confines of the specific matters raiscd by the

~pplican'ts. -

As at present ndvised Respondent should consequently include inthe

Counter-Memorial (in addition to, or as part of the foundatian for,

aiiswering of the specific a1Iegations)-

(i) a geographicnl survey of the Territory;

(ii) an ethnological survey covering each of the numerous population

groups ;

(iii) an economic survey ;

(iv) general progress made in tlie developrnent of the Territorjr and the

advancement of the welt-bcing of the inhabitants;

IV) reasons for applying differing measures to the various population

groups ;

(vi) standards in comparable territones and States.

3. A certain measure of researcli and preliminary compilation wark has

been done over a period of nearly two years by a team of experts, of-

ficials and lawyers.

A survey basecl on such work inclicates thatthe Counter-Mernorial may

run into 2,500 printed pages OFthe standard size of publications at the

Court, and perhaps even more.

In addition there will have to be extensive copying of documents.

4. According to an estimate made by Sijthoffs Publishing Company, the

Court's officia1printers in Leyden, at least 15 weeks will be taken for

printing of a Couiiter-h'lemorial ofI,500 pages.

5. In view of the above considerations, Respondent's represent at'lves

ca~inot see how their task can properly and adequately be performed in

less than 12 months.

This estimate takes due account of the facl that Respondent's lega1

tearn is now being substantially iricreased in numbers.

6. Respondent wouId very much appreciate an opportunity for

Messrs. de Villiers and Muller, Senior Counsel,tobe present at prospective

discussions with the President interms of Rule 37 of the Rules of Court.

They have had insight at first hand into the preparatory ïvork now being

done, and 1viIlbeable to furnish particulars of the nature and difficulties

of the task of preparing and filiiig the Counter-Mernorial evcn within the

time limit of 12 nionths respectfully requested by Respondent. SOUTH WEST AFBlCA

28 janvier 1963.

Le Greffierde la Cour internationale de Justice a l'honneur de trans-

mettre, sous ce pli, un exernpIairede l'arrêtrendu par la Cour le 21 dé-

cembre 1962 sur les exceptions préliminaires dans les affaires du Sud-

Ouest africairt (Ethiopiec. Afrique du Sud; Libéria c. Afrique du Sud),

D'autres exemplaires seront expédiésultérieurement par la voie ordi-

naire.

54. THE AGEXT FOR THE GOVERNMEKTS OF ETHIOPIA AND LIBERIA TO THE

REGISTRAR

30 January 1963.

Sir,

As Agent for the Governments of Ethiopia and Liberia 1 have the

honour to refer to your communication No. 37249 dated 21 January 1963,

enclosing a copy of a Memorandum dated 19 January 1963, addressed

to the Court by the Agent for the Republic of South Africa, Respondent

in the Sotrlh West Africa cases. Respondent requests the Court to fixa

time limit of 12 rnonths in which Respondent may file its Counter-

Bfemorial and requests the opportunity to be present at prospective

discussions with the President in tems of Rule 37 of the Rules of Court.

By cable datetl 23 January 1963 the undersigned, as Agent for

Ethiopia and Liberia (the "Applicants"), notified the Court of their

objection to the request of Respondent, and stated that Applicants

would convey their views in support of their objection as soon as pos-

sible. Applicants,inaccordance with Article 37of the RuIes ofProcedure,

respectfully submit their views and reasons for urging the Court to

reduce the length of time requested by Respondent for prepanng and

filing its Counter-Mernorial.

I.The practice of this Honourable Court makes it clear that Respon-

dent's right to have reasonably adequate opportunity to present its

case is to be balaiiced against Applicants' right to obtain a reasonably

expeditious determination ofthe issues.

The rnatters complained of by Applicants in the pending cases are

of a nature justifying and requiring reasonably expeditious resolution.

Applicants allege that rights have been unlawfully denied to the in-

habitants of the 'Territory of South iirest Africa by Respondent. The

inhabitants of the Temtory, as well as interested States, seek judicial

l La méme communicstioiaikt6 adressée a tous les autres Etrits 3Iembres des

xations Unies etaux Etats no6 membres des riations Unies qui sontparties au

Statut de la Courou auxquellsaCour estouverte aux termes de l'ar35, par.2,

du Statut. CORRESPONDENCE 541

remedies adequate to assure the safe-guards of the Mandate respecting

rights which-if Applicants' contentions are sustained by the Court-

have been deniecl by Respondent for a nurnber of years.

2. The considerations adduced by Respondeiit in its request for

12 ~nonths' delay in filing its Counter-Mernorial are that the issues are

cornplex and numerous, and that they cover a period of more than

40 years. Respondent cites the ~~ossiblelength of its Counter-hlemorial

and urges that at least 15 weeks will be required for printing.

3. In December 1960, Respondent was called upon to submit its

vieivs as to the tirne-limit in which it should file its Counter-Mernorial,

By letter dated JI December ~gGo,addressed to the Registrar of the

Court, Respondent requested a period of "at leastIO to 12 months". In

support of its request, Respondent set forth basically the same con-

siderationsit now repeats, including then,as itdoes now, a summary of

factual issues raised. In addition, Respondent, in 1960, contended that

although Applicants had had a long time in which to prepare their case,

Respondent's "first officia1intimation" that there would be legal pro-

ceerlings directed against it occurred when it received the Applications

on 4 November 1960.

4. In its letter o19 January 1963, Respondent acknowledges that "a

certain measure of research and preliminary compilation work has been

done ovet a period of nearly two years by a team of experts, officials and

lawyers". In the light of the long history of controversy regarding the

matters comp1aint:d of in the Applications, and the fact that Kespoiident

lias had oficial and explicit knowledge of them since at lea4tNovember

1960, it would have indeed been surprising had Respondent not acknow-

ledged that it hasalready done much of the work required for its Coun-

ter-8Iemarial.

III

Respondent, more than 2 ycars ago thus requested "at least IO to

12 months" in whicli to fileits Counter-Memorial. It was, by order of the

Court dated 13 January 1961, given 8 months in which to do so. Appli-

cants strongly urge that Respondent has advanced no adequate reason

for ~towextending the length of time previously determined by the Court

to be adequate. 011the contrary, it is respectfully submitted that a period

shorter than 8 months would now be fair and adequate.

(1)The reasons adduced by Respondent in 1960 for an unduly long

time limit were basically the same reasons adduced now.

(2)IVhereas Respondent asserted in 1960 that it had had no time

previously in which to prepare, it now admittedly has had 2 years, and

Respondent acknowledges, as must reasonably be assumed, that it has

engnged in research and compilation work during the 2-year period.

(3)The issues requiring preparation by Respondent now are signifi-

cantly less than those considered at the time the previous time Limit

was fised. During the course of the Preliminary Objections certain ofthe

key legal issues were resolved.

(4)Since 21 December 1962, when the Court handed down its Judg-

ment on Respondent's Preliminary Objections, Respondent has had more

than one month in which to continue work on its Counter-Mernorial.

(5)Not a11of the 15 weeks envisaged by Respondent for pRnting

would have to be devoted solely to that purpose, even ifRespondent's

Counter-liernorial were to reach the length forecast by Respondent.542 SOUTH WEST AFRICA

Clearly, manuscript could be transmitted for printing in stages of com-

pletion.

(6) The issues of fact involved in thSottfh 1,Vest jrica caseshave not

been newly raised. They have for many years been the subject of pub-

lished reports by the United Nations Committee on South West Africa,

and have been dehated in the General Assembly and in Committees of

the General Assembly. hloreover, information relating to the factual

issues is peculiarly within the knowledge and control of Respondent as

Mandatory for the Territory of South West Africa. liespondent has had

ready, and in somc:cases, unique access to relevant documentation and

source rnatenal. Indeed, for many years information concerning the

subject-matter of most of the factual issues was regularly compiled by

Respondent and submitted by jtto the Permanent Mandates Comnlission

of thc League of Nations. It is reasonable to presume that current in-

formation of a like nature has also been compilecl and rnaintaincd by

Respondent.

Applicants have researched the cases before the Court as reported for

the years 1947 to July 1961 (excluding the cases :it bar). To Appli-

cants' knowledge, never has a party been given a period as long as

12 months in which to file a Counter-Mernorial, even taking into account

extensions of time-limits. The longest period accordcd to any party in

any case, so far as Applicants have found, was 9 months, and including

extensions, II months, $rior to the filing of Prelirninary Objections.The

average amount of time, including extensions, appears to have been 3 to

6 months. The lowgest Period any Party has been accordedfor fililtg its

Coutater-Mernorial,afler filingPrelinzinary Objectio~zs,and including ex-

tefhsiom, was 4 months.

The closest analogy to the case at bar appears to be ZiightsofPassage

over Ilzdiafi Territory (PortugaW. india). At the initial stages othe pro-

ceedings India was accorded 6 months in which to file its Counter-

Mernorial, and thei-eafter was granted an additional 4 rnonths. India then

fiied Preliminary Objections. After the Judgment disrnissing the Objec-

tions,lndia was accorded 3 months in which to file its Counter-Nernorial.

It thereafter received a 1-rnonth postponement, during which time it

filed itsCounter-R,iemoriaI.

Inthe case at bar, Respondent was accorded 8 months in tvhich to file

its Counter-hfemorial (the second longest period accorded to a party) on

its representation that it required such a lengthy period prirnarily be-

cause of the large nunrber of factual issues raised concerning the merits.

Respondent thereitfter ernployed al1 but z ~veeks of the S months iii

preparing its Preliminnry Objections.

The Right of Passage Case, noted above, is apt precedent for the

proposition that when a party is originally accorded a lengthy time-limit

(in that case more than 6 months) for filing its Counter-Mernorial, and

thereafter files Prdiminary Objeclionsnear the expiration of that lirnit,

it should not thereafter be granted an equal-to sap nothing of a Ionger-

period to cornplete its pleading.

On the basis of the foregoing views and reasons, the Governments of COKKESPONDENCE 543

Etliiopia and Liberia urge that the request of the Republic of South

Africa be denied, and that the Court determine that Respondent should

have 6 months in ahich to file its Counter-Mernorial. If discussions are

held in the terms of Article 37 of the Rules ofCourt, Applicants request

the privilege of attendance.

Respectfully submitted,

(Signed) Ernest A. CROSS.

55. THE REGISTKAK TO THE AGENT FOR THE GOVERXMENT OF SOUTH

APIUCA

j February 1963.

Sir,

1have the honour to inforrn you that by an Order ='oftoday's date the

President of the International Court of Justice has fixed 30 September

1963 as the time-limit for thc filing of the Counter-Mernorial of the

Government of the Republic of South Africa in the South West Africa

cases, the subsequcnt procedure being reserved for further decision.

1 shall send you in due course the official copy of the Order for your

Government .

I have, etc.,

56. LE DIRECTEUR GÉNÉRAL DU BUREAU INTERNATIONAL DU TRAVAIL AU

GREFFIER

8 juillet1963.

Monsieur le Greffier,

J'ai l'honneur de vous informer, et vous prie de bien vouloir faire

savoir à AI.le Président de la Cour, qu'à sa156me session, par une résolu-

tion en date du 29 juin 1963, le Conseild'adrninistration du Bureau inter-

national du Travail a décidé quele Directeur généraldu Bureau inter-

national du Travail se tienne la disposition dela Cour internationale de

Justice pour fournir toutes les informations que laCour pourrait deman-

der l'organisation internationale du Travail, en relation avec les

procédures en cours concernant le Sud-Ouest africain.

Vous voudrez bien trouver, joints à la présente Iettre, deux -exem-

pIaires du procès-verbal l des séances du Conseil d'administration au

cours desquelles cette question a étédiscutée.

Veuillez agréer, etc.,

(Signé)David A. MORSE.

1 The same ctimninnication was sent to the Agents for the Governmeiitsfor

Ethiopia and Liberia.

ï.C.g. Reporis 1963, 6.

Son reproduit.544 SOUTH WEST AFRICA

57. LE GREFFIER AU DIRECTEUR cÉxÉRAL DU BUREAU IV iTERXATI0S:tL

DU TRAVAIL

IO juillet 1$3.

Monsieur le Directeur -énéral,

Par votre Lettre du 8 juille1963, vous voulez bien me faire savoir, en

me demandant d'en informer M. le Président de la Cour, qu'à sa rj6mc

session, par une résolution d29 juin 1963,le Conseil d'administratioidu

Bureau international du Travail a décidéque le Directeur généraldu

Bureauinternational du Travail setienne iila disposition dela Cour inter-

nationale de Justice pour fournir toutes les informations que la Cour

pourrait demander h l'organisationinternational du Travail, en relation

avec les procédures en cours concernant le Sud-Ouest africain. Vous

joignez à votre lettre deux exemplaires du procès-verbal des séances du

Conseil d'administration au cours desquelles cette question a été dis-

cutée.

En accusant la réception de votre obligeante communication, j'ai

l'honneur de vous informer que je ne manquerai pas de porter ce qui

précéde Ala connaissance de hl.le Président de laCour.

Veuillez agréer, etc.,

58. THE AGENT FOR THE GOVBRNMENT OF SOUTH AFRICA TO THE

REGIÇTRAR

zx August 1963.

Sir,

I.You are respectfully referred to the Order of 5 February 1963,

fixing30 September 1963, as the tirne-limit for the filing of Respondent's

Counter-Mernorial in the Soitlh WestAfrica cases.

z. Despite utmost endeavours to expedite preparation, it has been

found impossible to complete the Counter-Memonal in time for filing

on 30 September 1963. My Govcrnment isaccordingly regretfully obliged

to apply, as it hereby does, for an extension othe time-limitin terms of

Rule of Court No. 37.4.

3. In previous communications, 1 have had occasion to refer to the

multiplicity and complexity ofthe issues raised in thSouth WestAfrica

cases, resulting in a situation whereby they in effect amount to a large

nurnber of cases rolled into one. In order to avoid unnecessary repetition

in this regard, 1respectfully wish to draw attention in particular to the

document dated 19 January 1963, submitting Respondent's views re-

garding the time-lirnit for filing of the Counter-Memorial.In that docu-

ment, the matters specifically dealt with in Chapters V toIX of Appli-

cants' Mernorials are tabulated and a Iist is given of subjects with cach

of which Respondent will have to deal systernatically,as a necessary

foundation for, ancl thiis in addition to, chapters answering the specificallegations.On the basis of that analysis and of an estimated Ij weeks

required for printing, 1then çtatcd that-

"Respondent's representatives cannot see how their task can

properly and adequately be perfonned in less than 12 montl-is."

4. Events since January 1963 have shown thnt the period of 12 months

in the above statement was a considerablc u~iderestirnate on the part of

Respondent's representatives, for which 1 mish to convey our sincere

apologies.

5. ASwas intimated in the document of 19 January x963 , team of

experts, officials and lawyers had been engaged on research and pre-

lirninnry compilation work relative to the Counter-Memorial for a period

of nearly two years, i.e., cornmencing shortly after the filing of the

Applications in these cases and concurrently with the preparation and

presentation of Respondent's case on the Preliminary Objections.

6. Upon dismissal of the Preliminary Objections and the fixing of

30 September 1963,as the time-limit for filinofthe Counter-Memorial,

the preparatory work had to be CO-ordinated and re-written in a form

suitable for presentation ta the Wonourable Court. In order to expedite

matters in this regard as mucfi as possible, the following steps were,

inter dia, taken :

(a) The team of legal represcritatives, experts and officials was con-

siderably enlarged.

(bj Every effort was made by thc drafting tcam to teduce the length of

the Counter-hlemorial to the minimum reasonably required for

adequate presentation.

(c) Hegotiations rvith printers, in the Netherlands and in South Africa,

resulted in a considerable reduction of the original estimates of

printing time, the assessnient (in both countries) now being six

weeks, subject to a very fast fate of proof-reading and supyly of

COPY.

7..In practice, however, it has been found, as \vil1 be readily ap-

preciated, that there is a limitto the timc savings that can be accom-

plished even by means such asthe above. In view ofthe need for accuracy,

CO-ordination and unity in the end product, al1 the work must in its

finalstages necessariiy pass through the hands of relatively few persons-

who must also assist in the planning and CO-ordination of earlier stages

of production. The volume of the work involvcd is enormous. Preliminary

drafts (which are of necessity unco-ordinated and overlapping) run into

thousands of typed pages, with the result that critical rending alone

takes up considerable time. Onc of thc objects at the final stages is to

reduce the volunie of reading matter to sizeable proportions, for the

convenience of tht:HonourahIe Mcmbers of the Court, without thereby

doing injustice tothe case that requires to be presented on Rcsponclent's

behalf.

8. Respondent cxpects to have availabIe inprint, before 30September

1963, one self-contained portion of the Countcr-Memonal, dealing 115th

basic legal issues whicl-iwill requirc consideration at this stage of the

proceedings, asweII as with the historical background relative thereto.

Respondent will gladly make this volume available to Applicants as soon

as it iscompleted,in order to enablc them to proceed ~4th the preparation

of their answer and thus expedite the filing of their Reply. If the Court

or the Honourablc President should so desire, Respondent would also546 SOUTH WEST AFRICA

gladly file this portion of the Counter-Mernorial immediately upon its

completion.

g. In order to complete the rest of the Counter-Mernorial, however,

Respondent will, for the reasons indicated above, require time beyond

30 September 1963. But here also, if it should be so desired by Appli-

cants, Respondent is prepared to CO-operate in the adoption of special

methods with a view to reducing the period which Applicants rnay need

to file their Reply.Thus, as and whcn further portions of the Counter-

lllemorialrnay become availablein final roneoed form pnor to printing,

Respondent would be prepared to render them available to Applicants.

Although Respondent would in such event reserve the right to effect

alterations at the printing stage, such alterations, if any, would inal1

probability be of minor irnport only.

IO. The possible special steps referred to in paragraph8 and g hereof,

are respectfully submitted merely as suggestions with a view to mini-

mizing the delay and inconvenience that might arise from the extension

now applied for. They need not be taken ifnot favoured by the Honour-

able President or t.he Court. Respondent would also gladly consider any

reasonable alternative suggestions having the same purpose in view.

Ir. Having regard to al1 the relevant factors, Respondent's repre-

sentatives, to the best of their ability. estimate thatfurther seven and

a half months will be required for completion of the Counter-Mernorial.

1thereforerespectfully apply on Respondent's behaIf, for extension of

the time-limit for the filingof the Counter-Memorial in the South West

Africa cases until15 hlay 1964.

1 have, etc.,

59. THE AGENT FOR THE GOVERNXIBNTS OF ETHIOPIA AND LIBERIA

TO THE REGIÇTRAR

6 September 1963.

Sir,

Reference is made to Communication No. 38386 dated 30 August 1963,

from the Deputjr-Registrar, transmitting a copy of a letter dated

21 August 1963, atldressed to the Registrarby the Agent for the Govern-

ment of the Repiiblic of South Africa, Respondent in the South West

Afvica cases. Respondent has requested a seven and a half months

extension of the time-limit fixed for thefilingof its Counter-Memorial in

these cases, the said request having been received anfilein the Registry

of theCourt on 29 August 1963, one month prior to the expiration of the

time-limit of30 September 1963.

Prornptly upon receipt of telegraphic advice from the Registry of the

aforesaid letter, the Applicants, through the underçigned Agent, dis-

patched a cable dated 30 August 1963, opposing any extension of time CORRESPONDEXCE 547

for filing the Counter-Mernorial, and reserving the right to submit a

Memorandum upon receipt of the copy of Respondent's letter. Having

now received said copy, Applicants respectfully renew their vigorous

objection to granting of Respi~ndent's request, and in support of such

objection cal1 to the Court's attention the considerations enumerated

below.

Kespondent's request for an extension of time follows its consistent

pattern of requesting unreasonably long periods to prepare its pleadings,

while, on the contrary, Applicants have at al1 times sought to proceed

with expedition, at no stage having requested longer than five months to

submit ripleading herein.

1.The Applications were fileon 4 November 1960.

2.AppLicants requested and received a 5 months' time-limit for filing

their Memorials, which were tluly filed 15 Apnl 1961. Respondent by

letter of31 December 1960, requested until 15 February 1962 to file its

Counter-Memorial, a period ofmore than 15 months from the date of the

Applications and ten months f'romthe date of the Mcmorials. Respon-

dent sought to justify its request for so lengtayperiod primarily on the

ground that the Applications dealt "not only with a number of intricate

legal and constitutional poi~itsbut also with a large number of factual

questions relating to almost everp facet of the administration of the

Territory of South West Afriça. over a period of40 years".

3. Objection to the request having been made by Applicants, th<

Agents for the respective Parties met on 13 January 1961 with the

President of this Honourable Court, in terms of Ai 'icl37 of the Rulesof

Court, and both Parties submitted Blemoranda in support of their

respective views l.Having heard the Parties and haiijng considered the

views set forth in their written submissions, this Honourable Court by

Order dated 13 January 1g61, fised15 December 1961 as the time-limit

for the filing of the Counter-BIcmorial.

Accordingly, Respondent had virtually the entire year of 1961 to

gatlier al1documents and source material relevant to the issues raised in

the Applications,to engage in requisite resenrch and to prepare argument

upon the legal issues raised thercin, with al1of ïvhich Respondent had a

unique familiarity and access, arising from over 40 years' administration

of South IlTest Africa.

Shortly prior to the expiral.ion of the aforesaid tirne-limit, viz. on

30 November 1961, Respondent filed its Preliminary Objections and

Applicants thereupon requested and received a period of 3 months in

which to file their Observations.

4. Following the Judgment of 21 December 1962 on the Preliminary

Objections, Respondent requested and received a period of I month for

formulating its views concerning the tirne-limit required for Counter-

Mernorial.

5. By memorandum dated 19 January 1963, Respondent requested a

period of 12 months in which to file its Counter-Rfcmorial. Such request

was for a period more than twice that accorded to any party in any case

l Not filcd withe Registry.54& SOUTH WEST AFRICA

previously before this Court for filing a Counter-Mernorial, inclzrding

extensions,following a Judgment on Prelirninary Objections. Respon-

dent's supporting arguments for so lengthy a period were basically the

same aç those adduced in its initial request of 31 December 1960.

6. Bp Memorandum dated 30 January 1963,Applicants opposed the

request for 12 months as dilatory. The Court allowed Respondent

g months.

7. Respondent, repeating for'the third tirne in two years the same

basic contentions as to the necessity for compilation of material and

extensive research, now seeks an additional seven and a half months.

Respondent now concedes, however, that printing can be completed

in 6 weeks rather than the 15 weeks it previously represented, but con-

tends that it underestimated by what is, in effect, more than half a

year the time required to prepare its Counter-Mernorial.

III

Applicants refer the Court to their blemorandum of 30January 1963

setting forth the grounds for opposing as dilatory Respondent's earlier

request for 12 months in which to fileits Counter-Memorial. Conceding

Respondent's right to have reasonably adequate opportunity to present

its case, Applicants then submitted and now reiterate their equally valid

international accountabilityioand legal protection of human rights in-

voIved in these cases.

of the respective interests of the Parties called that a fair balancing

tember 1963 as the time-limit for filing the Counter-Mernorial is now

confronted, at virtiially the last minute. with a mere repetition of argu-

ments, already twice made, for unreasonably long periods. Nothing

is added by Respondent by way of justification except the contention

that Respondent fiiids it "impossible" to complete the Counter-Rlemorial

in time.

A plea of"irnpossibility", concerning a matter in which discretion and

diligence play so decisive a part, and which iiivolves collection and

preparation of material within Respondent's unique knowledge and

control, should, it is submitted, be appraised against the history of the

pleadings in these caçeç.

I. Applications were filed 4 November 1960.

2.Applicants requested and received 5 months for filing Memorials.

3, Respondent rcquested 15moiiths from thedate of the Applications

for filing its Counter-Mernorial largely on the grounds that such a period

is required to deal with the factual issues concerning its administration

of South West Afnca; received 13 rnonths; filed Preliminary Objections

z weeks before expiration of time-limit for the Counter-Mernorial, which

objections, of course, do notdeal with the aforesaid factual issues at all.

4. -4pplicants requested and receivcd 3 months for filingObservations.

5. After a lapseof I month following the Court's Judgment of 21 De-

cember 1962, Respondent requested 12 months for filing its Counter-

Mernorial; the Court granted until 30 September 1963, a period of ap-

proximately g months from the date of Judgment and of almost 3 years

from the date of the filing of the Applications. CORRESPONDENCE 549

In its appraisal of Respondent's plea of "impossibility" of completing

its Counter-Mernorial, Applicants respectfully urge upon the Court the

consideration that pursuant to Article 41 of the Rules of Court, the

Parties herein will have the opportunity to file further pleadings. Ilrfiile

calling attention to the danger that Respondent may seek to continue its

dilatory procedures in connection with the exercise of its right of

Rejoinder, Applicants submit that any residual rnatters which Respon-

dent rnay feel it lias overlooked or has been unable to analyse during the

almost 3-year period which h:is elapsed since the filing of the Applica-

tions herein, may be included in its Rejoinder and, if necessary, in the

Oral Hearings as well.

In conclusion, Applicants respectfully reaffirm the reasons set forth in

their Memoranda of 12 January 1961 and 30 January 1963, and oppose

the granting of any extension of time for fiiing the Counter-Mernorial.

Applicants respectfully request the opportunity to be heard at the

earliest possible time,ursuant to Article 37 of the Rules of Court, in the

event the Court does not see fit in the absence of such a hearing to deny

any extension of the time-lirnit presently fixed for the fiIing of the

Counter-Memorial herein.

(Signed) Ernest A. GROSS.

60. THE REGISTRAR TO THE AGENT FOR THE COVERNMENT OF SOUTH

AFRICA '

18 September 1963.

Sir,

I have the honour to inforni yau that by an Order *of today's date

the International Court of Justice has extended to IO January 1964the

time-limit for the filing of the Counter-Memonal of the Government of

the Republic of South Africa in the South West Africa cases, the sub-

sequent procedure being reserved for further decision.

1 shall send you in due course the officia1copy of the Order for your

Government.

1 have, etc.,

1 The ssme communication was sentto theAgents forthe Governments of

Ethiopiaand Liberia.

I.C.J. Reports 1963.12.550 SOUTH WEST AFRICA

61. LE GREFFIER AU DIRECTEUR GÉNÉRAL DU BUREAU INTERNATIONAL

DU TRAVAIL

xeroctobre 1963.

Monsieur le Directeur général,

Comme suite A ma lettre du IO juillet 1963, j'ai l'honneur de vous

faire savoir que je n'ai pas manquéde portervotre lettre du 8 juillet 1963

à.la connaissance du Président.

L'information qu'elle contenait a étécommuniquée Ala Cour, qui en a

pris note.

Veuillez agréer,etc.,

62. THE AGENT FOR THE GOVERNMENT OF SOUTH AFRICA TOTHE REGISTRAR

IO January 1964.

Sir,

The Counter-Memonal' of the Republic of South Africa in the Soztth

WeslAfricacases isfiledherewithin terms ofthe Order of the Honourable

Court of xS Septernber 1963.

1have, etc.,

[Signed) J. P. VERLORE VNAS THEUAAT.

IO January 1964.

Sir,

In the preparation of my Government's Counter-Memorial. a large

number ofdifferent documents have been used. For the convenience of

the Court two photostatic copies have been prepared of the relevant

portions of those documents referred to in the Counter-Mernorial which

are not available in the Court Libraries, even though they may have

been published and available to the publiin terms of Rule 43 (1).

The systeni followed in subrnitting these documents to the Court is

similar to thnt used in connectionwith my Government's Preliminary

Objections in that the photostatic copies were arranged in the order in

which they appear in the Lists of the Relevant Documentation. NO

photostatic copies have been made of documents available in the Court

Libraries orfiledwith the Preliminary Objections although such doc-

uments also appear in the Lists of the Relevant Documentation.

See II, Iand IV,pp. 1-195. The documents submitted are referred to in Books III to VI11of the

Counter-Mernorial. Keference to two documents only is made in Book 1.

Both these documents are available in the Court Libraries. Ali the

documents referred to in Book 11 are either available in the Court

Libraries or have been submitted with the PreLiminary Objections.

Book IX has no documentation.

The documentation submitted for the convenience of the Court as

referred to in Books III, VI and VI1 of the Counter-Rlemonal, is sub-

mitted herewith. Owing largely to transport difficulties, it was found

impossible to submit the documents referred to in Books IV, V and VI11

before 13 January. Certain supplementary documents referred to in

Books III and VI which, as now appears, are not available in the Court

Libraries, will also be fonvarded on that date.

I have, etc.,

20 January 1964.

Sir,

I have the honour to inform you that by an Order *oftoday's datethe

President has fixed the following time-limits for the further proceedings

in the South West Africa cases:

for the fihg of the Reply of the Government of Ethiopia and the

Government of Liberia, 20 June 1964;

for the filing of the Rejoinder of the Government of South Afnca,

20 November 1964.

1 shall sendyou in due course the officia1copy of the Order for your

Govemment.

1have, etc.,

Sir,

In paragraph 35 (II, pp. 476-477)of Book IV of the Counter-Rlemorial

an expected Report ofa Comniiçsion on South West Africa was referred

to. This Report has just been published and is available to the public.

For the convenience of the Court, it is the intention to include two

copies of this Report among the documentatiori submitted with the

' The same communication was sent to the Agents for the Governmentsof

Liberiaand South Africa.

* I.C.J.Reporis1964, p.3.552 SOUTH WEST AFRICA

Counter-Mernorial, in two folders both marked Volume IV-5, and thesc

folders will be submitted to you by our Embassy.

Although the said Reporthas nothing to do with the Counter-Memorial

as such, Members of the Court may find it convenient to have copies

thereof constaritly at their disposa1 for reference purposes. For this

purpose it is our intention to forward a further 23 copiesof this Report

to you through our Embassy, if you consider such procedure to be in

order.

1 have, etc.,

66. THE AGENT FOR THE GOVERNMENTS OF ETHIOPIA AND LIBERIA TO

THE REGISTRAR

25 February 1964.

Sir,

1 have the honour to acknowledge, with thanks, your letter düted

18 February 1964, transmitting a copy of a letter dated 12 February

1964, addressed to you by the Agent for the Respondeiit in the Sozltk

West Africa cases. Pursuant to your request to be informed promptly

whether the Agents for the Applicants desired to make any observations

in connection with the aforesaid correspondence, a cablegram was

dispatched to you by the undersigned as prornptly as possible followiiig

the receipt of your letter, advising you of our intention to do so.

The Agents for the Applicants gratefully accept the invitation to

express their views concerning matters raised in the letter dated12 Feb-

ruary 1964 from the Agent for the Respondent, and respectfully submit

herewith observations which thcy regard to be both relevant and

significantto the proper course and conduct of the pending litigation.

Inhis letter o12 Febmary 1964, the Agent for the Respondent advises

the Rcgistrar of his intention to include among the documentation

submitted with Respondent's Counter-Mernorial, two copies of a certain

"Report of a Commission on South West Africa". The addition of this

Report to the documentation previousIy submitted with the Counter-

hlemorial, is asscrted in the letter of12 February 1964 to be designed

"for the convenience of the Court". The Ictter does not, however, make

clear how or to what end the "convenience of the Court" isserved by the

inclusion of thisReport among tlie documentation. The averment in the

letter that "the said Report hns nothing to dowith the Counter-Mernorial

as such" appears inconsistent with the Agent's comment that "Members

of the Court may find it convenient tohave copies thereof constantly ai

their disposa1 forrcference purposes".

The Report in question was, as the Agent for the Respondent points

out, referred to in paragraph 3j of Chapter VI1 of Book IV (II, pp. 476-

477) of the Counter-Mernorial. In this paragraph, Respondent set forth

the objective with which the Respondent had appointed the Commission,

the composition of the Commission, itsterms of reference, and the advice CORRESPONDENCE 553

to the Court that the Report of the Commission was "expected to be

published in the very near future".

\Vithout in any way commenting upon the merits at issueinthe pcnding

litigation, it seems highIy relevant to question how, under the foregoing

circumstanccs, it can be said that the Report "has nothing to do with

the Counter-hlemonal as such". The most cursory examination of the

Recommendatjons ofthe Report reveals a direct and decisively important

relationship to the merits of principal issues at bar.

It would be inappropriate to comment herein concerning the merits

of issues joined in the Pleadings previously filed by the Parties. It does

not, however, in any sense trench upon the merits to point out that

implementation of numerous key Recommendations of the Comniission

would be inconsistent with, and inderogation of, contentions made by

the Applicants and relief sought by them in the Applications aiid Sub-

missions. Accordingly, Applicants respectfully reserve their rights under

Article 41 of the Statute of the Court and Article 61of the lirileç of

Procedure in the event Respondent should proceed with measures of

irnplementation of the lieport of the Commission.

Under these circumstances, the statement in the letter of12 February

1964. that the Report "has nothing to do with the Counter-hlemonal as

such", must be understood to constitutc an assurance to the Court that

imptementation of Recommendations of the Commission inconsistent

with contentions at issue inthe pending litigation, will be deferred in any

event until after the final Judgment of this Honourable Court, and upon

.this understanding, Applicants perceive no objection to the inclusion of

copiesof theReport amongthe documentation submitted with theCounter-

Memorial, in such quantities as the Court may find useful. Applicants,

in any event, resl~ectfullyreserve the right in their Keply and subscquent

stages to bring to the attention of the Court such considerations as

Applicants deem relevant, concerning objectives of Respondent in

appointing the Commission, its terms of reference, its Arguments,

Findings and Recommend at'ions.

I have, etc.,

(Signe4 Ernest A. GKOSS.

67. THE AGENT FOR THE GOVERNMENT OF SOUTH AFRICA TOTHE REGISTRAR

Sir,

r. 1 have the honour to ack~io~~lcdgereceipt under cover of your

letter No. 39244 dated 2 March 1964,of a copy of a letter o25 February

1964, addressed to you by the Agents for the Applicants in the South

TVcst -4fricacases.

a. In tlieir said letter the Agents for the Applicants express their

views concerning matters raiçed in n letter hy Ur. J. P. verLoren van

Themaat to you dated 12 February 1964. The views expressed by Appli-

cants reveal that there is a misconception on their part regarding the

purpose and effect ofDr. verLoren van Thernaat'sletter and offonvarding554 SOUTH WEST AFRICA

to you copies of the report of the Commission of Enquiry into South

West Africa Affairs. 1t is therefore necessary to clarify the position.

3. In its Counter-Mernorial in the South West Africa cases (II, p476),

the Government of the Kepublic of South Africa made mention of the

fact that the aforenientioned Commission had been appointed, set forth

the composition of the Commission and its terms of reference andstated

further :

"The report of this Commission has becn due for some months

now, and is expected to be published in the very near future.

Unfortunately it has not become available at an early enough stage

to be dealt with in thisCozlnter-Mernorial .n so far as its recornmen-

dations, and the Respondent Governrnent's reactians thereto, will

be relevant to the matters concerned in this case,Respondent will at

a subsequent stage take the necessary steps, with the leave of the

Court in so far as neccssary, to present such information to the

Court for its consideration."

4, When the lettcr of 12 February 1964, was written, the Commission's

report had been pirblished and made available to the public but the

Government's reactions to the recommendations of the commission had

not been announced as is still the position to date.

5. In fonvarding copies of the Commission's report to you for the

convenience ofMenibers of the Court, the matter dealt with in Dr. ver-

Loren van Themaat's letter of 12February 1964, it was not intended that

such report should thereby become part of the pleadings or procccdings

in the Case submitted to the Court for adjudication.

6. As indicated inthe above extract frorn the Counter-hIemoria1, our

contemplation was to defer steps in this