possibilities of participation by the united nations in...

A/CN.4/281

Possibilities of participation by the United Nations in international agreements on behalf of aterritory - study prepared by the Secretariat

Extract from the Yearbook of the International Law Commission:-

1974

Document:-

vol. II(2),

Topic:Treaties concluded between States and international organizations or between two or

more international organizations

Copyright © United Nations

Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm)

Yearbook of the International Law Commission, 1974, vol. n , Part Two

DOCUMENT A/CN.4/281

Possibilities of participation by the United Nations ininternational agreements on behalf of a territory

Study prepared by the Secretariat

[Original: English][10 June 1974]

CONTENTS

Page

Abbreviations 8

Paragraphs

Note 1-6 9

Introduction 7-8 9

PART ONE. POSSIBILITIES PROVIDED BY TREATY PROVISIONS 9-29 10

A. Article 81 of the Charter of the United Nations 9-22 10

B. Relevant provisions in treaties other than the Charter of the United Nations 23-29 13

1. Text of provisions referring to the United Nations as the administering authority of atrust territory 29 14

2. Text of provisions referring to the United Nations as the administering authority for aterritory 29 15

3. Text of provisions referring to any authority responsible for a territory or for its inter-national relations 29 17

PART TWO. ASSUMPTION BY THE UNITED NATIONS OF DIRECT ADMINISTRATION OF, OR RESPONSIBILITY

FOR, A TERRITORY 30-63 1 7

A. West New Guinea (West Irian) 30-39 17

B. Namibia 40-^3 211. Review of multilateral and bilateral treaties concluded by South Africa affecting Namibia 51 -59 232. International agreements concluded by the United Nations Council for Namibia . . . . 60-63 26

Annexes

I. Replies from Governments concerning travel and identity documents for Namibians 27

II. Text of the Agreements between the United Nations (United Nations Council for Namibia) and Governmentsconcerning the issuance by the Council of travel and identity documents to Namibians 27

ABBREVIATIONS

FAO Food and Agriculture Organization of the United NationsI.C.J. International Court of JusticeI.C.J. Pleadings I.C.J., Pleadings, Oral Arguments, DocumentsI.C.J. Reports I.C.J., Reports of Judgments, Advisory Opinions and OrdersILO International Labour OrganisationIMCO Inter-Governmental Maritime Consultative OrganizationITU International Telecommunication OrganizationOAU Organization of African UnityUNESCO United Nations Educational, Scientific and Cultural OrganizationUNHCR Office of the United Nations High Commissioner for RefugeesWHO World Health OrganizationWMO World Meteorological Organization

Question of treaties concluded between States and international organizations

NOTE

1. Following the adoption by the United Nations Con-ference on the Law of Treaties of the resolution relating toarticle 1 of the Vienna Convention on the Law of Treaties,the General Assembly, by resolution 2501 (XXIV), of 12November 1969, referred the question of treaties concludedbetween States and international organizations or betweentwo or more international organizations to the Inter-national Law Commission to be studied "in consultationwith the principal international organizations, as it mayconsider appropriate in accordance with its practice"(para. 5 of the resolution).

2. At its twenty-third session, in 1971, the InternationalLaw Commission confirmed the request it had addressedto the Secretary-General at its twenty-second session thathe prepare a number of documents on the subject of thequestion of treaties concluded between States and inter-national organizations or between two or more internationalorganizations for the use of members of the Commission,1

it being understood that he would, in consultation with theSpecial Rapporteur, Mr. Paul Reuter, phase and select thestudies required for the preparation of those documents,which would include, in addition to as full a bibliographyas possible,2 an account of the practice of the UnitedNations and the principal international organizations.3

3. In pursuance of the above-mentioned decision, theSpecial Rapporteur, through the Secretary-General,addressed a questionnaire to the principal internationalorganizations for the purpose of obtaining information ontheir practice on the matter. He requested the same kindof information from the United Nations. The SpecialRapporteur took into account the information receivedfrom consulted international organizations in his secondreport, submitted to the International Law Commissionat its twenty-fifth session.4

4. Among the points included by the Special Rapporteurin the questionnaire was the following: "Possibilities thatmay be open to an international organization, by virtue oftreaties concluded under the auspices of your organization,of participating in an agreement on behalf of a territory itrepresents". Referring to the replies received on this point,the Special Rapporteur in the section of his second reportentitled "Participation of an international organization ina treaty on behalf of a territory it represents" noted that

1 Yearbook . . . 1970, vol. II, p. 310, document A/8010/Rev.l,para. 89.

2 A short bibliography on the topic—as well as a historical survey ofthe question and a preliminary list of the relevant treaties published inthe United Nations Treaty Series—was included in the working paper(A/CN.4/L.161 and Add.l and 2) submitted by the Secretary Generalto the Commission at its twenty-third session. A selected bibliographyon the question (A/CN.4/277) (see p. 3 above) was also issued at theCommission's present session.

3 Yearbook... 1971, vol. II (Part One), p. 348, document A/8410/Rev.l, para. 118(6).

* Yearbook . . . 1973, vol. II, p. 75, document A/CN.4/271. Thesecond report was designed to supplement the previous one ( Yearbook. . . 1972, vol. n , p. 171, document A/CN.4/258) by taking account ofthe fresh data provided by international organizations.

The text of the questionnaire addressed to international organiza-tions is annexed to the second report.

the Secretary-General of the United Nations had carriedout research on the subject which "would appear worthyof immediate publication and would serve as a basis forconsidering the problem in detail".5

5. Taking into account the wish so expressed by theSpecial Rapporteur and in compliance with the decisionof the Commission referred to above that a number ofdocuments on the topic be prepared by the Secretariat "forthe use of the members of the Commission", it was decidedto publish in the present document of the Commission theresearch carried out by the Codification Division of theOffice of Legal Affairs of the United Nations Secretariaton the "Possibilities of participation by the United Nationsin international agreements on behalf of a territory"with a view to assisting the Commission in its work onthe question of treaties concluded between States andinternational organizations or between two or moreinternational organizations.

6. The designations employed and the presentation ofmaterial in this document do not imply the expression ofany opinion whatsoever on the part of the Secretariat ofthe United Nations concerning the legal status of anycountry, territory or entity or the position which Statesmay have with regard to such legal status.

INTRODUCTION

7. In studying the possibilities of participation by theUnited Nations in international agreements on behalf ofa territory, due consideration has been given not only topossibilities provided in this respect to the United Nationsby treaty provisions but also to the actual cases in which theUnited Nations has assumed the direct administration of,or responsibility for, a territory. The term "territory" hasbeen understood as excluding States and associations ofStates as well as subjects of international law having theirown treaty-making capacity such as, for instance, the FreeTerritory of Trieste created by the 1947 Treaty of Peacewith Italy.6

8. The study has been divided into two parts. Part One,devoted to possibilities provided by treaty provisions,refers to possibilities under Article 81 of the Charter of theUnited Nations (Section A), including developmentsconcerning the question of the disposal of the formerItalian colonies and the question of the r6gime and statuteof the City of Jerusalem, as well as under relevant provisionsin treaties other than the Charter of the United Nations(Section B), whether or not such treaties were concludedunder the auspices of the United Nations. Part Two con-cerns cases of assumption by the United Nations of directadministration of, or responsibility for, a territory, namelyWest New Guinea (West Irian) (Section A) and Namibia(Section B).

5 Yearbook . . . 1973, vol. II, p. 86, document A/CN.4/271, para.70.

6 See article 24 of annex VI to the Treaty (United Nations, TreatySeries, vol. 49, p. 193.

10 Yearbook of the International Law Commission, 1974, vol. n , Part Two

PART ONE

POSSIBILITIES PROVIDED BYTREATY PROVISIONS

A. Article 81 of the Charter of the United Nations

9. Article 81 of the Charter provides that the administer-ing authority of a trust territory "may be one or moreStates or the Organization itself".* This provision of theCharter opens the possibility for the United Nations toassume the role of administering authority of a trustterritory.10. In the case of territories held under a League ofNations Mandate by an original Member State (or States)of the United Nations and placed under the trusteeshipsystem of the United Nations (Cameroons under Britishadministration, Cameroons under French administration,Nauru, New Guinea, Ruanda-Urundi, Tanganyika, Togo-land under British administration, Togoland under Frenchadministration, and Western Samoa), the former manda-tory State (or States) was designated as the administeringauthority in the trusteeship agreement approved by theGeneral Assembly.7 The Trusteeship Agreement for theformer Japanese mandated islands in the Pacific approvedby the Security Council on 2 April 1947 designated theUnited States of America as the Administering Authority.8

11. A United States proposal aimed at placing the formerItalian colonies under a trusteeship by the United Nations,implying assumption by the Organization of the responsi-bilities of an administering authority for the territoriesconcerned, was considered at the 1945 and 1946 sessions ofthe Council of Foreign Ministers concerning the prepara-tion of the treaty of peace with Italy (attended by theForeign Ministers of France, the USSR, the United King-dom and the United States).9 No agreement was reachedby the Council concerning the final disposal of the formerItalian colonies. The 1947 Treaty of Peace with Italyprovided (art. 23)10 that the final disposal of those colonieswas to be determined jointly by the Government of theSoviet Union, the United Kingdom, the United States andFrance within one year of the Treaty's coming into forceand in a manner laid down in the joint declaration issuedby those Governments and reproduced in Annex XI to theTreaty.11 The Joint Declaration stipulated that if noagreement had been reached within the time period indi-cated, the matter was to be referred to the General Assemblyof the United Nations for a recommendation, which thefour Governments agreed to accept. During the negotia-

* Italics supplied by the Secretariat.7 Questions relating to the negotiation and nature of the trustee-

ship agreements and to the parties thereto are irrelevant so far as thequestion under consideration is concerned. See United Nations,Treaty Series, vol. 8, p. 119 (Cameroons under British administration);ibid., p. 135 (Cameroons under French administration); ibid., vol. 10,p. 3 (Nauru); ibid., vol. 8, p. 181 (New Guinea); ibid., p. 105 (Ruanda-Urundi); ibid., p. 91 (Tanganyika); ibid., p. 151 (Togoland underBritish administration); ibid.,?. 165 (Togoland under French adminis-tration); and ibid., p. 71 (Western Samoa).

*Ibid.,p. 189.9 See M. Whiteman, Digest of International Law, vol. Ill (Washing-

ton, D.C., U.S. Government Printing Office, 1964), pp. 10-12.10 United Nations, Treaty Series, vol. 49, p. 139.11 Ibid., p. 214.

tions held between the Four Powers in accordance withthe Peace Treaty no proposals were made by which theUnited Nations would assume the role of administeringauthority of any of the former Italian colonies.12 The FourPowers, however, did not reach agreement on the matterand the question was subsequently submitted to the GeneralAssembly, pursuant to the Joint Declaration. The outcomeof the relevant deliberations in the General Assembly wasthe adoption on 21 November 1949 of resolution 289 A (IV)whereby it was recommended, inter alia: (a) that Libyashould be constituted an independent State not later than1 January 1952, a United Nations Commissioner and aCouncil being established to assist the Libyan people inthe formulation of the constitution and the establishmentof an independent Government; (b) that Italian Somalilandshould ultimately become likewise an independent Statebut that for a period of 10 years it should be placed underthe International Trusteeship System with Italy as Adminis-tering Authority; and (c) that a Commission should beestablished to, inter alia, ascertain more fully the wishesand the best means of promoting the welfare of the inhabi-tants of Eritrea.

12. With regard to Libya, section A, paragraph 10 ofresolution 289 A (IV) provided that the "administeringPowers",13 in co-operation with the United NationsCommissioner in Libya, should, inter alia, initiate allnecessary steps for the transfer of power to a duly constitu-ted independent Government and administer the territoriesfor the purpose of assisting in the establishment of Libyanunity and independence, co-operate in the formation ofgovernmental institutions and co-ordinate their activitiesto this end. The United Nations Commissioner in Libyaand the administering Powers in Libya submitted reportsto the General Assembly.14 According to resolution 387 (V)of 17 November 1950, a National Assembly was to beconvened before 1 January 1951, to establish a provisionalGovernment of Libya, 1 April 1951 being the target datefor its establishment. All powers exercised by the "adminis-tering Powers" were to be progressively transferred to theduly constituted Libyan Government by 1 January 1952.A Provisional Federal Government having been estab-lished on 29 March 1951 and the Constitution of the UnitedKingdom of Libya having been adopted on 7 October 1951,

12 See Whiteman, op. cit., pp. 16-21.13 France and the United Kingdom. The preamble to the Agreement

between the United States of America, the United Kingdom of GreatBritain and Northern Ireland and France on Technical Assistance forLibya, signed at London, on 15 June 1951, stated that:

"The Government of the United States of America of the one partand the Governments of the United Kingdom of Great Britain andNorthern Ireland and the French Republic of the other part, as theAdministering Powers of the three territories of Tripolitania,Cyrenaica and The Fezzan* have agreed as follows:..." Article VIprovided that "The Agreement shall terminate on 31st December1951, or the date on which Libya becomes independent, whicheveris the earlier". (United Nations, Treaty Series, vol. 148, pp. 67and 74.)

• Italics supplied by the Secretariat.14 Accounts of the activities of the Commissioner and the Council

and of the reports made by the administering Powers are contained inthe annual reports of the Secretary-General on the work of theOrganization, submitted to the General Assembly (Official Recordsof the General Assembly, Fifth Session, Supplement No. I (A/1287);ibid., Sixth Session, Supplement No. I (A/1844); and ibid., SeventhSession, Supplement No. 1 (A/2141).

Question of treaties concluded between States and international organizations 11

the gradual transfer of power began in October of 1951 andwas completed by December 1951. On 24 December 1951the declaration of Libyan independence was issued.13. The Trusteeship Agreement for the Territory ofSomaliland under Italian Administration15 was approvedby the General Assembly on 2 December 1950. TheAdministering Authority (Italy), at that time a non-member of the United Nations, was to be aided and advisedby an Advisory Council composed of representatives ofthree Member States (art. 2). Article 8 of the TrusteeshipAgreement provided inter alia that "the AdministeringAuthority shall seek the advice of the Advisory Council onall measures envisaged for the inauguration, development,and subsequent establishment of full self-government forthe Territory".16 The Advisory Council was to commencethe discharge of its functions when the Italian Governmentbegan its provisional administration of the territory whichwas to occur pursuant to arrangements for the orderlytransfer of administration agreed upon between Italy andthe United Kingdom (the administering Power) after theTrusteeship Council and Italy had negotiated the Trustee-ship Agreement, and pending approval of the Agreementby the General Assembly.17 The Italian Minister forForeign Affairs informed the Secretary-General, by aletter dated 22 February 1950, that the Government of theItalian Republic, subject to its ratification of the Trustee-ship Agreement, had undertaken to assume the administra-tion of the Territory of Somaliland.18 Subsequently, theItalian Minister for Foreign Affairs informed the Secretary-General that the transfer of administration had taken placeas of 1 April 1950.19 The Trusteeship Agreement came intoforce on 8 January 1952, the date on which the instrumentof ratification by Italy was deposited with the Secretary-General of the United Nations. Article 24 of the TrusteeshipAgreement provided that it should "cease to be in force tenyears after the date of the approval of the TrusteeshipAgreement by the General Assembly, at the conclusion ofwhich the Territory shall become an independent sovereignState". Somalia became independent on 1 July 1960.

14. The United Nations Commission for Eritrea estab-lished by resolution 289 A (IV) was to ascertain informationfrom the British Administration in Eritrea, from therepresentatives of the population of the territory, includingminorities, and from Governments and such organizationsand individuals as it might deem necessary and to submit areport to the General Assembly. On 2 December 1950, theGeneral Assembly adopted resolution 390 A (V) recom-mending, inter alia, that Eritrea should constitute anautonomous unit federated with Ethiopia under thesovereignty of the Ethiopian Crown. On 14 December1950, the Assembly elected a United Nations Commissionin Eritrea. The Commissioner was to consult the United

Kingdom (the administering Power), the Government ofEthiopia and the inhabitants of Eritrea in connexion withthe preparation of a draft Constitution to be submitted tothe Eritrean Assembly. Pending the federation of Eritreawith Ethiopia, the United Kingdom was to continue toconduct the affairs of Eritrea.20 The United NationsCommissioner presented the draft Constitution to theEritrean Assembly which adopted it on 10 July 1952. Inaccordance with the provisions of paragraph 13 of SectionA of General Assembly resolution 390 A (V), the UnitedNations Commissioner approved the Constitution on 6August 1952 and transmitted the instrument of approval tothe President of the Representative Assembly of Eritrea.On 11 August, at Addis Ababa, the Emperor of Ethiopiaratified the Constitution, which could not, however, enterinto force, until the ratification of an internal EthiopianFederal Act which was based upon paragraphs 1 to 7 ofsection A of resolution 390 A (V). The federation of Eritreawith Ethiopia was formally established on 11 September1952 when the Ethiopian Emperor ratified the Federal Act.On 15 September of the same year, the United Kingdomformally handed over the administration to the Federaland Eritrean Governments.21

15. Thus, the United Nations was not designated as anddid not act as an administering authority—under a trustee-ship agreement or otherwise—for any of the former Italiancolonies. The United Nations Commissioners in Libya andEritrea, the United Nations Council for Libya and theUnited Nations Commission for Eritrea did not possessthe status of an administering authority and did not performthe functions of such an authority. In the interim periodbefore independence (Libya) or federation (Eritrea), theadministering Powers remained: France and the UnitedKingdom in the case of Libya and the United Kingdom inthe case of Eritrea. With regard to former Italian Somali-land, the United Kingdom continued to be responsible forthe administration of the territory until the transfer ofadministration to Italy, the Administering Authoritydesignated in the relevant Trusteeship Agreement. Inconclusion, the United Nations did not at any time assumeadministrative or representative functions with regard tothose territories and consequently did not have the possi-bility of participating in international agreements on theirbehalf.

16. The designation of the United Nations as administer-ing authority of a territory was also considered in connexionwith the establishment of an international regime for theCity of Jerusalem. On 27 August 1947, seven of the eleven

15 United Nations, Treaty Series, vol. 118, p. 255.16 See Sect. B, para. 8 of General Assembly resolution 289 A (IV)

and article 23 of the Trusteeship Agreement.17 See section B, paragraph 8 of resolution 289 A (TV) and article 23

of the Trusteeship Agreement.18 Annual Report of the Secretary-General on the work of the

Organization {Official Records of the General Assembly, Fifth Session,Supplement No. 1 (A/1287), p. 106).

19 Ibid.

20 Paragraph 11 of section A of resolution 390 A (V) stated that"I t may, in agreement with the Commissioner, negotiate on behalf ofthe Eritreans a temporary customs union with E t h i o p i a . . . " . N o suchagreement or customs union was recorded.

21 For an account of the activities of the United Nations Commissionfor Eritrea and the United Nations Commissioner in Eritrea, seereports of the Secretary-General on the work of the Organization(Official Records of the General Assembly, Fifth Session, Supple-ment No. 1 (A/1287); ibid., Sixth Session, Supplement No. 1 (A/1844);ibid., Seventh Session, Supplement No. 1 (A/2141); and ibid., EighthSession, Supplement No. 1 (A/2404). See also the exchange of notesbetween the United Kingdom and Ethiopia constituting an agreementregarding the federation of Eritrea with Ethiopia under the sovereigntyof the Ethiopian Crown, done at Addis Ababa on 27 and 29 August1952 (United Nations, Treaty Series, vol. 190, p. 329).


members of the United Nations Special Committee onPalestine, established by General Assembly resolution 106(S-I), proposed a plan of partition with economic union,which, inter alia, included the placing of the City of Jeru-salem under an international trusteeship system by meansof a trusteeship agreement by which the United Nationswould be designated the administering authority, inaccordance with Article 81 of the Charter.22 Upon therecommendation of its Ad Hoc Committee on Palestine,which had considered the proposal of the Special Committeeon Palestine, the General Assembly, by resolution 181 (II)of 29 November 1947, recommended the adoption andimplementation of a plan of partition of Palestine witheconomic union. The plan provided, inter alia, that:

(a) The City of Jerusalem shall be established as a corpusseparatum under a special international regime and shallbe administered by the United Nations. The TrusteeshipCouncil shall be designated to discharge the responsibilitiesof the Administering Authority on behalf of the UnitedNations;

(b) The Trusteeship Council shall, within five months ofthe approval of the plan of partition, elaborate and approvea detailed Statute of the City which shall contain inter aliathe substance of a certain number of provisions containedin the plan;

(c) The Statute elaborated by the Trusteeship Councilshall come into force not later than 1 October 1948. Itshall remain in force in the first instance for a period oftenyears, unless the Trusteeship Council finds it necessary toundertake a re-examination of these provisions at anearlier date. After the expiration of this period the wholescheme shall be subject to re-examination by the Trustee-ship Council in the light of the experience acquired with itsfunctioning. The residents of the City shall be then free toexpress by means of a referendum their wishes as topossible modifications of the regime of the City.

17. At its second special session, in May 1948, the GeneralAssembly considered the recommendation of a Sub-Committee of its First Committee23 which included aproposal that a temporary administration of Jerusalem withthe United Nations acting as the administering authoritybe established as from 15 May 1948, the date upon whichthe United Kingdom intended to terminate the League ofNations Mandate, until 31 December 1949, unless decidedotherwise by the General Assembly. That proposal,however, was not adopted by the General Assembly, havingfailed to receive the necessary two-thirds majority.24

18. As indicated above, General Assembly resolution181 (II) entrusted the Trusteeship Council with the task ofpreparing a detailed Statute for the City of Jerusalem. The

Council prepared a draft25 which, without being formallyadopted, was transmitted to the General Assembly byTrusteeship Council resolution 34 (II) of 21 April 1948. Atits second special session, the General Assembly did not giveany further instructions on the matter to the TrusteeshipCouncil which, subsequently, did not take further actionconcerning the draft statute, until so instructed by theGeneral Assembly in resolution 303 (IV) referred to below.26

19. At its third session, the General Assembly, by resolu-tion 194 (III) of 11 December 1948, entrusted to a UnitedNations Conciliation Commission for Palestine the task of,inter alia, presenting proposals for a permanent interna-tional regime for the Jerusalem area. In 1949, that Com-mission approved a draft instrument establishing such ar6gime.27 According to that draft instrument, the Jerusalemarea would have been divided into two zones, one Arab andone Jewish, to be administered by the respective authorities.In addition, there would have been established four princi-pal organs (a United Nations Commissioner, a GeneralCouncil, an International Tribunal and a Mixed Tribunal)to exercise certain specific functions designed to protect theinterests of the international community and to facilitatepeaceful relations between the two zones.

20. At its fourth session, the General Assembly, on therecommendation of its Ad Hoc Political Committee,28

adopted resolution 303 (IV) of 9 December 1949 by whichit inter alia restated its intention that Jerusalem should beplaced under a permanent international regime and con-firmed specifically certain provisions of resolution 181 (II),including the establishment of the City of Jerusalem as acorpus separatum under a special international regime to beadministered by the United Nations, The TrusteeshipCouncil being designated to discharge the responsibilitiesof administering authority. By the same resolution, theGeneral Assembly requested the Trusteeship Council tocomplete its preparation of, and approve, a Statute forJerusalem and to proceed immediately with its implemen-tation.

21. On 4 April 1950, the Trusteeship Council approved adraft Statute for the City of Jerusalem. The Statute, interalia, constituted the City of Jerusalem as a corpus separatumunder the administration of the United Nations. The specialreport of the Trusteeship Council on the matter29 wasconsidered in 1950 at the General Assembly's fifth sessionby the Ad Hoc Political Committee. The President of theTrusteeship Council indicated to the Committee that theCouncil had been unable to comply with the GeneralAssembly's instruction to proceed immediately to theimplementation of the Statute, for lack of the necessarymeans of implementation.30

22. Following consideration of two draft resolutions,

22 Official Records of the General Assembly, Second Session, Supple-ment No. 11 (A/364 and Add.l^), vol. I, pp. 47-58.

23 Ibid., Second Special Session, Annex to volumes I and II, p . 37,document A/C. 1/298.

2* At that session, the First Committee also had before it a workingpaper submitted by the United States of America (ibid., p . 12, docu-ment A/C. 1/277), containing a draft trusteeship agreement forPalestine as a whole, the United Nations being designated as theadministering authority. That proposal was not voted upon by theFirst Committee (ibid., p . 7, document A/552).

25 See para . 20 below.26 Official Records of the Trusteeship Council, Third Part of the

Second Session, Annex, document T/118/Rev.2.27 Official Records of the General Assembly, Fourth Session, Ad Hoc

Political Committee, Annex, document A/973 and A d d . l .28 Ibid., Plenary Meetings, Annex, p . 35, document A/1222 and

A d d . l .29 Ibid., Fifth Session, Supplement No. 9 (A/1286).30 A/AC.38/L.69.


submitted respectively by Sweden and Belgium,31 the AdHoc Political Committee recommended to the GeneralAssembly a draft resolution by which the General Assemblywould have considered that "for lack of the necessary co-operation by the States concerned, the Trusteeship Councilhas been unable to give effect to the Statute which it hadprepared" and would have instructed "four persons, to beappointed by the Trusteeship Council, to study, in consulta-tion with the Governments at present in de facto control ofthe Holy Places and with other States, authorities andreligious bodies concerned, the conditions of a settlementcapable of ensuring the effective protection, under thesupervision of the United Nations, of the Holy Places andof spiritual and religious interests of the Holy Land".32

The recommended draft resolution, having failed to obtainthe required two-thirds majority, was not adopted by theGeneral Assembly.33

B. Relevant provisions in treaties other than the Charter ofthe United Nations34

23. Several treaties contain provisions opening to theUnited Nations the possibility of participating therein "onbehalf" of a territory it represents. Such provisions couldbe classified in three categories: (a) those which refer to theUnited Nations as the administering authority of a trustterritory; (b) those which refer to the United Nations as theadministering authority for a territory; (c) those which referto any authority responsible for the administration of aterritory or for its international relations. Provisions of thatkind may be found in the constituent instruments of somespecialized agencies (FAO, ILO, ITU, WHO, WMO,UNESCO, IMCO), in treaties other than constituentinstruments of specialized agencies, concluded under theauspices of the United Nations (1949 Convention onRoad Traffic; 1949 Protocol on Road Signs and Signals),and in treaties concluded under the auspices of IMCO ordealing with matters relating to the activities of that special-

31 The Swedish draft resolution (Official Records of the GeneralAssembly, Fifth Session, Annexes, agenda item 20, document A/AC.38/L.63), was based upon functional rather than territorial criteria andwould have recognized the exercise of jurisdictional control of eachpart of the Jerusalem area by the States concerned, while providingfor a United Nations Commissioner to supervise the protection of,and free access to, the Holy Places. The Belgian draft resolution, asrevised (ibid., document A/1724, paras. 6 and 9) would have recalledGeneral Assembly resolution 181 (II), 194 (III) and 303 (IV) and wouldhave instructed four persons to study the conditions of a settlementcapable of ensuring the effective protection under United Nationssupervision of the Holy Places. This draft resolution provided thebasis for the draft resolution recommended by the Ad Hoc PoliticalCommittee (ibid., para. 12).

32 Ibid.33 By resolutions 2253 (ES-V) of 4 July 1967 and 2254 (ES-V) of

14 July 1967, the General Assembly called upon Israel to rescind allmeasures already taken and to desist forthwith from taking anyaction which would alter the status of Jerusalem. By resolution 252(1968) of 21 May 1968, the Security Council considered that alllegislative and administrative measures and actions taken by Israelwhich tended to change the legal status of Jerusalem were invalid andcould not change that status. That resolution was reaffirmed bySecurity Council resolutions 267 (1969) of 3 July 1969 and 298 (1971)of 25 September 1971.

34 The information provided below is not intended to be exhaustive,although a wide range of treaties has been examined, including bothtreaties for which the Secretary-General performs depositary functionsand treaties annexed to General Assembly resolutions.

ized agency. On one occasion, a United Nations bodyhaving responsibilities for the international relations of aterritory has made use of the possibilities opened by aprovision of that kind, namely the United Nations Councilfor Namibia in connexion with the admission of Namibiaas an associate member of WHO.35

24. A territory placed under the administration of theUnited Nations or for which the Organization is inter-nationally responsible, as the case may be, may become amember (WMO Convention) or an associate member (FAOConstitution; WHO Constitution; ITU Convention;UNESCO Constitution; IMCO Convention) of a special-ized agency in accordance with the provisions set forth inthe relevant constituent instrument. In some instances, suchprovisions require only that the United Nations: (a) shouldapply the constituent instrument to the territory and that thelatter should have a separate meteorological service (WMOConvention); (b) should accept the constituent instrumenton behalf of the territory (IMCO Convention); or (c)should accede to the constituent instrument on behalf ofthe territory and sponsor an application for associatemembership (ITU Convention). In other cases, the con-stituent instruments provide for the approval of theadmission by the assembly or conference of the specializedagency following: (a) a declaration made by the UnitedNations in a formal instrument accepting on behalf of theterritory the obligations of the constituent instrument andassuming responsibility for ensuring the observance ofcertain provisions of that instrument with regard to theterritory (FAO Constitution); or (b) an application madeby the United Nations on behalf of the territory (WHOConstitution; UNESCO Constitution).

25. The ILO Constitution regulates the participation of aterritory under the administration of an internationalauthority, including the United Nations, in the labourconventions. A declaration by the United Nations acceptingthe obligation of any labour convention in respect of sucha territory involves the acceptance "on behalf" of theterritory concerned of the obligations stipulated by theterms of the convention and the obligations under the ILOConstitution which apply to ratified labour conventions.Provision is also made for cases in which the obligations ofconvention are not accepted "on behalf" of a territory, aswell as for declarations of acceptance specifying modifica-tions of the provisions of the convention required by localconditions.

26. The 1949 Convention on Road Traffic is opened foraccession on behalf of any trust territory of which the UnitedNations is the administering authority as well as foraccession by certain non-signatory States and any otherState which the Economic and Social Council may byresolution declare to be eligible. Accession by States or onbehalf of a trust territory of which the United Nations is theadministering authority to the 1949 Protocol on RoadSigns and Signals is governed mutatis mutandis by a similarprovision.27. The 1960 International Convention for the Safety of

35 See paras. 47-49 below.


Life at Sea, the 1954 International Convention for thePrevention of Pollution of the Sea by Oil, as amended in1962, the 1965 Convention on Facilitation of InternationalMaritime Traffic, the 1966 International Convention onLoad Lines, the 1969 International Convention relating toIntervention on the High Seas in Case of Oil PollutionCasualties, the 1969 International Convention on CivilLiability for Oil Pollution Damage and the 1971 Conventionrelating to Civil Liability in the Field of Maritime Carriageof Nuclear Material deal with the participation of territories,including those for which the United Nations acts as theadministering authority, in terms of "extension" or"application" of the conventions.

28. Termination of the "extension" or "application" ofthe instrument concerned to a territory for which the UnitedNations is the administering authority is expressly regulatedin some treaties: for instance, the IMCO Convention andconventions concluded under the auspices of IMCO ordealing with matters relating to its activities. The ILOConstitution also contains provisions concerning declara-tions by the international authority of a territory modifyingthe terms of any former declaration accepting the obliga-tions of a labour convention in respect of the territory orterminating the acceptance of the obligations of the con-vention "on behalf" of the territory concerned.

29. The text of a certain number of provisions is repro-duced below under headings corresponding to the threecategories referred to above.36

1. TEXT OF PROVISIONS REFERRING TO THE UNITED NATIONSAS THE ADMINISTERING AUTHORITY FOR A TRUST TERRITORY

(a) Convention of the World Meteorological Organization,signed at Washington on 11 October 1947. 37

PART IIIMEMBERSHIP

Article 3MEMBERS

The following may become Members of the Organization by theprocedure set forth in the present Convention:

(/) Any trust territory or group of trust territories maintaining itsown meteorological service and administered by the United Nationsto which the United Nations applies the present Convention inaccordance with Article 34.

PART XIXRATIFICATION AND ACCESSION

Article 34Subject to the provisions of Article 3 of the present Convention,

(c) the United Nations may apply the present Convention to anytrust territory or group of trust territories for which it is the administer-ing authority. The Government of the United States of America willnotify all signatory and acceding States of any such application.

(b) Convention on the Inter-Governmental Maritime Con-sultative Organization, done at Geneva on 6 March1948.38

PART IIIMEMBERSHIP

Article 9Any territory or group of territories to which the Convention has

been made applicable under Article 58, by the Member having responsi-bility for its international relations or by the United Nations, maybecome an Associate Member of the Organizaton by notification inwriting given by such Member or by the United Nations, as the casemay be, to the Secretary-General of the United Nations.

PART XVIMISCELLANEOUS PROVISIONS

Article 57SIGNATURE AND ACCEPTANCE

Subject to the provisions of Part III the present Convention shallremain open for signature or acceptance and States may becomeparties to the Convention by:

(a) Signature without reservation as to acceptance;(b) Signature subject to acceptance followed by acceptance; or(c) Acceptance.Acceptance shall be effected by the deposit of an instrument with

the Secretary-General of the United Nations.

Article 58TERRITORIES

(d) In cases where under a trusteeship agreement the United Nationsis the administering authority, the United Nations may accept theConvention on behalf of one, several, or all of the trust territories inaccordance with the procedure set forth in Article 57.

Article 59WITHDRAWAL

(b) The application of the Convention to a territory or group ofterritories under Article 58 may at any time be terminated by writtennotification given to the Secretary-General of the United Nations bythe Member responsible for its international relations or, in the case ofa trust territory of which the United Nations is the administeringauthority, by the United Nations. The Secretary-General of the UnitedNations will immediately inform all Members and the Secretary-General of the Organization of such notification. The notificationshall take effect upon the expiration of twelve months from the dateon which it is received by the Secretary-General of the United Nations.

(c) Convention on Road Traffic, signed at Geneva on 19September 1949?9

CHAPTER VIIFINAL PROVISIONS

Article 27

3. F rom 1 January 1950, this Convention shall be open for accessionby those of the States referred to in paragraph 1 of this article whichhave not signed this Convention and by any other State which theEconomic and Social Council may by resolution declare to be eligible.It shall also be open for accession on behalf of any Trust Territory ofwhich the United Nations is the Administering Authority.

36 See para . 23.37 United Nat ions , Treaty Series, vol. 77, p . 143.

38 Ibid., vol. 289, p . 3 .39 Ibid., vol. 125, p . 3. To be terminated and replaced, in relations

between the Contracting Parties, by the Convention on Road Traffic,done at Vienna on 8 November 1968 (United Nations Conference onRoad Traffic, Final Act and Related Documents (United Nat ions ,publication, Sales N o . E/F.69.VIIL1), p . 11). The 1968 Convention,which is not yet in force, does not contain a provision similar to thelast sentence of paragraph 3 of article 27 of the 1949 Convention.


(d) Protocol on Road Signs and Signals, signed at Geneva on19 September 1959.*°

Article 56

3. From 1 January 1950, this Protocol shall be open for accessionby States signatories to the Convention on Road Traffic and by Statesacceding or having acceded to it. It shall also be open for accession onbehalf of any Trust Territory of which the United Nations is theAdministering Authority and on behalf of which the said Conventionhas been acceded to.

(e) International Telecommunication Convention, done atMontreux on 12 November 1965.41

Article 1

COMPOSITION OF THE UNION

3. An Associate Member of the Union shall be:

(c) any trust territory on behalf of which the United Nations hasacceded to this Convention in accordance with Article 21, and theapplication of which for Associate Membership has been sponsoredby the United Nations.

Article 21

APPLICATION OF THE CONVENTION TO TRUST TERRITORIES OF THE

UNITED NATIONS

The United Nations shall have the right to accede to this Conventionon behalf of any territory or group of territories placed under itsadministration in accordance with a trusteeship agreement as providedfor in Article 75 of the Charter of the United Nations.

2. TEXT OF PROVISIONS REFERRING TO THE UNITED NATIONSAS THE ADMINISTERING AUTHORITY FOR A TERRITORY

(a) International Convention for the Safety of Life at Sea,signed at London on 17 June I960.*2

Article XIII

TERRITORIES

(a) (i) The United Nations in cases where they are the administeringauthority for a territory or any Contracting Government responsiblefor the international relations of a territory shall as soon as possibleconsult with such territory in an endeavour to extend the presentConvention to that territory and may at any time by notification inwriting given to the Organization declare that the present Conventionshall extend to such territory.

(ii) The present Convention shall from the date of the receipt of thenotification or from such other date as may be specified in the notifica-tion extend to the territory named therein.

(b) (i) The United Nations or any Contracting Government whichhas made a declaration under paragraph (a) of this Article, at any timeafter the expiry of a period of five years from the date on which theConvention has been so extended to any territory, may by a notificationin writing given to the Organization declare that the present Conventionshall cease to extend to any such territory named in the notification.

40 United Nations, Treaty Series, vol. 182, p . 229 and vol. 514,p . 254. To be terminated and replaced, in relations between the Con-tracting Parties, by the Convention on Road Signs and Signals doneat Vienna on 8 November 1968 {United Nations Conference on RoadTraffic, Final Act and Related Documents {op. cit.), p. 79). The 1968Convention, which is not yet in force, does not contain a provisionsimilar to the last sentence of paragraph 3 of article 56 of the 1949Protocol.

41 United Nations, Juridical Yearbook, 1965 (United Nationspublication, Sales N o . 67.V.3), p . 173.

42 United Nat ions , Treaty Series, vol. 536, p . 27.

(ii) The present Convention shall cease to extend to any territorymentioned in such notification one year, or such longer period as maybe specified therein, after the date of receipt of the notification by theOrganization.

(c) The Organization shall inform all the Contracting Governmentsof the extension of the present Convention to any territories underparagraph (a) of this Article, and of the termination of any suchextension under the provisions of paragraph {b), stating in each casethe date from which the present Convention has been or will cease tobe so extended.

(b) Amendments to Articles I, II, III, IV, V, VI, VII, VIII,IX, X, XIV, XVI and XVIII and to Annexes A and B ofthe International Convention for the Prevention ofPollution of the Sea by Oil, 1954, adopted on 11 April 1962by the Conference of Contracting Governments to the saidConvention, held at London, from 4 to 11 April 1962.*3

13. The existing text of Article XVIII of the Convention44 is replacedby the following:

Article XVIII

(1) {a) The United Nations in cases where they are the administeringauthority for a territory or any Contracting Government responsiblefor the international relations of a territory shall as soon as possibleconsult with such territory in an endeavour to extend the presentConvention to that territory and may at any time by notification inwriting given to the Bureau declare that the Convention shall extendto such territory.

{b) The present Convention shall from the date of the receipt of thenotification or from such other date as may be specified in the notifica-tion extend to the territory named therein.

(2) (a) The United Nations in cases where they are the administeringauthority for a territory or any Contracting Government which hasmade a declaration under paragraph (1) of this Article, at any timeafter the expiry of a period of five years from the date on which thepresent Convention has been so extended to any territory, may by anotification in writing given to the Bureau after consultation with suchterritory declare that the Convention shall cease to extend to any suchterritory named in the notification.

{b) The present Convention shall cease to extend to any territorymentioned in such notification one year, or such longer period as maybe specified therein, after the date of receipt of the notification by theBureau.

43 United Nations, Treaty Series, vol. 600, p . 332.44 The original text of article XVIII of the 1954 Convention (United

Nations, Treaty Series, vol. 327, p . 3), reads as follows:"Article XVIII

"(l)-(a) Any Government may, at the time of signature or accept-ance of the present Convention, or at any time thereafter, declareby notification in writing given to the Bureau that the Conventionshall extend to any of the territories for whose internationalrelations it is responsible.

ll{b) The Convention shall, from the date of the receipt of thenotification, or from such other date as may be specified in thenotification, extend to the territories named therein.

"(2)-(a) Any Contracting Government which has made a declara-tion under paragraph (1) of this Article may, at any time after theexpiration of a period of five years from the date on which theConvention has been so extended to any territory, give notificationin writing to the Bureau, declaring that the Convention shall ceaseto extend to any such territory named in the notification.

{b) The Convention shall cease to extend to any territory men-tioned in such notification twelve months , or such longer periodas may be specified therein, after the date of receipt of the notifica-tion by the Bureau.

"(3) The Bureau shall inform all Contracting Governments of theextension of the Convention to any territories under paragraph (1)of this Article, and of the termination of any such extension underparagraph (2) of this Article, stating in each case the date from whichthe Convention has been, or will cease to be, so extended."

16 Yearbook of the International Law Commission, 1974, vol. II, Part Two

(3) The Bureau shall inform all the Contracting Governments of theextension of the present Convention to any territory under paragraph(1) of this Article, and of the termination of any such extension underthe provisions of paragraph (2) stating in each case the date from whichthe Convention has been or will cease to be so extended.

(c) Convention on facilitation of international maritimetraffic, signed at London, on 9 April 1965.4S

Article XIII

(1) (a) The United Nations in cases where they are the administeringauthority for a territory, or any Contracting Government responsiblefor the international relations of a territory, shall as soon as possibleconsult with such territory in an endeavour to extend the presentConvention to that territory, and may at any time by notification inwriting given to the Secretary-General declare that the Conventionshall extend to such territory.

(b) The present Convention shall from the date of the receipt of thenotification or from such other date as may be specified in the notifica-tion extend to the territory named therein.

(c) The provisions of Article VIII of the present Convention shallapply to any territory to which the Convention is extended in accord-ance with the present Article; for this purpose, the expression "its ownformalities, documentary requirements or procedures" shall includethose in force in that territory.

(d) The present Convention shall cease to extend to any territoryone year after the receipt by the Secretary-General of a notification tothis effect, or on such later date as may be specified therein.

(2) The Secretary-General shall inform all the Contracting Govern-ments of the extension of the present Convention to any territory underparagraph 1 of this Article, stating in each case the date from which theConvention has been so extended."

(d) International Convention on Load Lines, done at Londonon 5 April 1966.46

Article 32

TERRITORIES

(1) (a) The United Nations, in cases where they are the administeringauthority for a territory, or any Contracting Government responsiblefor the international relations of a territory, shall as soon as possibleconsult with such territory in an endeavour to extend the presentConvention to that territory and may at any time by notification inwriting to the Organization declare that the present Convention shallextend to such territory.

(b) The present Convention shall, from the date of the receipt of thenotification or from such other date as may be specified in the notifica-tion, extend to the territory named therein.

(2) (a) The United Nations, or any Contracting Government whichhas made a declaration under sub-paragraph (a) of paragraph (1) ofthis Article, at any time after the expiry of a period of five years fromthe date on which the Convention has been so extended to any territory,may by notification in writing to the Organization declare that thepresent Convention shall cease to extend to any such territory namedin the notification.

(b) The present Convention shall cease to extend to any territorymentioned in such notification one year, or such longer period as maybe specified therein, after the date of receipt of the notification by theOrganization.

(3) The Organization shall inform all the Contracting Governmentsof the extension of the present Convention to any territories underparagraph (1) of this Article, and of the termination of any suchextension under the provision of paragraph (2), stating in each casethe date from which the present Convention has been or will cease tobe so extended.

(e) International Convention Relating to Intervention on theHigh Seas in Case of Oil Pollution Casualties, done atBrussels, on 29 November 1969.47

Article XIII

1. The United Nations where it is the administering authority for aterritory, or any State Party to the present Convention responsiblefor the international relations of a territory, shall as soon as possibleconsult with the appropriate authorities of such territories or take suchother measures as may be appropriate, in order to extend the presentConvention to that territory and may at any time by notification inwriting to the Secretary-General of the Organization declare that thepresent Convention shall extend to such territory.

2. The present Convention shall, from the date of receipt of thenotification or from such other date as may be specified in the notifica-tion, extend to the territory named therein.

3. The United Nations, or any Party which has made a declarationunder paragraph 1 of this Article may at any time after the date onwhich the Convention has been so extended to any territory declare bynotification in writing to the Secretary-General of the Organizationthat the present Convention shall cease to extend to any such territorynamed in the notification.

4. The present Convention shall cease to extend to any territorymentioned in such notification one year, or such longer period as maybe specified therein, after the date of receipt of the notification by theSecretary-General of the Organization.

(f) International Convention on Civil Liability for OilPollution Damage, done at Brussels on 29 November1969.™

Article XVII

1. The United Nations, where it is the administering authority for aterritory, or any Contracting State responsible for the internationalrelations of a territory, shall as soon as possible consult with theappropriate authorities of such territory or take such other measuresas may be appropriate, in order to extend the present Convention tothat territory and may at any time by notification in writing to theSecretary-General of the Organization declare that the present Con-vention shall extend to such territory.


3. The United Nations, or any Contracting State which has made adeclaration under paragraph 1 of this Article may at any time after thedate on which the Convention has been so extended to any territorydeclare by notification in writing to the Secretary-General of theOrganization that the present Convention shall cease to extend to anysuch territory named in the notification.


(g) Convention relating to Civil Liability in the Field ofMaritime Carriage of Nuclear Material, done atBrussels on 17 December 1971.49

Article 81. The United Nations where it is the administering authority for a

territory, or any Contracting Party to the present Convention respons-ible for the international relations of a territory, may at any time bynotification in writing to the Secretary-General of the Organizationdeclare that the present Convention shall extend to such territory.

45 United Nations, Treaty Series, vol. 591, p . 265.46 Ibid., vol. 640, p . 133.

*7 United Nat ions , Juridical Yearbook, 1969 (United Nationspublication, Sales N o . E.71.V.4), p . 166.

** Ibid., p. 174.49 United Nations, Juridical Yearbook, 1972 (United Nations

publication, Sales No. E.74.V.1), p. 100.



3. The United Nations, or any Contracting Party which had made adeclaration under paragraph 1 of this Article may at any time after thedate on which the Convention has been so extended to any territorydeclare by notification in writing to the Secretary-General of theOrganization that the present Convention shall cease to extend to anysuch territory named in the notification.


3. TEXT OF PROVISIONS REFERRING TO ANY AUTHORITY

RESPONSIBLE FOR A TERRITORY OR FOR ITS INTERNATIONAL

RELATIONS

(a) Constitution ofFAO, signed at Quebec on 16 October1945.50

Article IIMEMBERSHIP AND ASSOCIATE MEMBERSHIP

3. The Conference may, under the same conditions regarding therequired majority and quorum as prescribed in paragraph 2 above,decide to admit as an Associate Member of the Organization anyterritory or group of territories which is not responsible for the conductof its international relations upon application made on its behalf bythe Member Nation or authority having responsibility for its inter-national relations, provided that such Member Nation or authorityhas submitted a declaration made in a formal instrument that it willaccept on behalf of the proposed Associate Member the obligations ofthe Constitution as in force at the time of admission, and that it willassume responsibility for ensuring the observance of the provisions ofparagraph 4 of article VIII, paragraphs 1 and 2 of Article XVI, andparagraphs 2 and 3 of Article XVIII of this Constitution with regardto the Associate Member.

(b) Instrument for the amendment of the Constitution of theILO adopted by the International Labour Conference atits twenty-ninth session, Montreal, 9 October 1946.51

Article 35

5. A declaration accepting the obligations of any Convention maybe communicated to the Director-General of the International LabourOffice—

(a) by two or more Members of the Organisation in respect of anyterritory which is under their joint authority; or

(b) by any international authority responsible for the administrationof any territory, in virtue of the Charter of the United Nations orotherwise, in respect of any such territory.

6. Acceptance of the obligations of a Convention in virtue ofparagraph 4 or paragraph 5 shall involve the acceptance on behalf ofthe territory concerned of the obligations stipulated by the terms of theConvention and the obligations under the Constitution of the Organis-ation which apply to ratified Conventions. A declaration of acceptancemay specify such modifications of the provisions of the Convention asmay be necessary to adapt the Convention to local conditions.

7. Each Member or international authority which has communicateda declaration in virtue of paragraph 4 or paragraph 5 of this Articlemay from time to time, in accordance with the terms of the Convention,communicate a further declaration modifying the terms of any formerdeclaration or terminating the acceptance of the obligations of theConvention on behalf of the territory concerned.

8. If the obligations of a Convention are not accepted on behalf of aterritory to which paragraph 4 or paragraph 5 of this Article relates,the Member or Members or international authority concerned shallreport to the Director-General of the International Labour Office theposition of the law and practice of that territory in regard to the mattersdealt with in the Convention and the report shall show the extent towhich effect has been given, or is proposed to be given, to any of theprovisions of the Convention by legislation, administrative action,collective agreement or otherwise and shall state the difficulties whichprevent or delay the acceptance of such Convention.

(c) Constitution of WHO, signed at New York on 22 July1946.52

CHAPTER III

MEMBERSHIP AND ASSOCIATE MEMBERSHIP

Article 8

Territories or groups of territories which are not responsible for theconduct of their international relations may be admitted as AssociateMembers by the Health Assembly upon application made on behalfof such territory or group of territories by the Member or otherauthority having responsibility for their international relations.Representatives of Associate Members to the Health Assemblyshould be qualified by their technical competence in the field ofhealth and should be chosen from the native population. The natureand extent of the rights and obligations of Associate Members shall bedetermined by the Health Assembly.

(d) Amendment to Article II of the Constitution ofUNESCO53 approved by the General Conference of theUnited Nations Educational, Scientific and CulturalOrganization in resolution 41.1 adopted on 11 Julyl951.5Ar

41.1 The General Conference,

41.11 Decides to insert between paragraphs 2 and 3 of Article II ofthe Constitution the following additional paragraph 3:

"3. Territories or groups of territories which are not responsible forthe conduct of their international relations may be admitted asAssociate Members by the General Conference by a two-thirds majorityof Members present and voting, upon application made on behalf ofsuch territory or group of territories by the Member or other authorityhaving responsibility for their international relations. The nature andextent of the rights and obligations of Associate Members shall bedetermined by the General Conference."

PART TWO

ASSUMPTION BY THE UNITED NATIONS OFDIRECT ADMINISTRATION OF, OR

RESPONSIBILITY FOR, A TERRITORY

A. West New Guinea (West Irian)

30. Between 1 October 1962 and 1 May 1963, the UnitedNations Temporary Executive Authority (UNTEA) wasdirectly responsible for the administration of West NewGuinea (West Irian), pursuant to a bilateral treaty, theAgreement between the Republic of Indonesia and theKingdom of the Netherlands concerning West New Guinea

30 Amended text, certified at Rome on 19 November 1958. SeeFAO, Basic Texts, 1970 edition (Rome).

51 United Nations, Treaty Series, vol. 15, p. 35.

32 Ibid., vol. 14, p. 185.53 Ibid., vol. 4, p. 275.5* Ibid., vol. 575, p. 260.


(West Irian),55 of 15 August 1962, and pursuant to GeneralAssembly resolution 1752 (XVII), of 21 September 1962,jointly sponsored by Indonesia and the Netherlands inaccordance with article I of the Agreement.31. The Agreement between Indonesia and the Nether-lands was negotiated with the assistance of the Secretary-General, signed at United Nations Headquarters, and sub-mitted jointly by both contracting parties through theSecretary-General to the General Assembly.56 The Agree-ment did not enter into force upon the exchange of instru-ments of ratification of the contracting parties, which tookplace on 20 September 1962, but upon the date of theadoption by the General Assembly of resolution 1752(XVII), namely on 21 September 1962, in accordance withthe provisions of articles XXVII and XXVIII of theAgreement.

32. The General Assembly in resolution 1752 (XVII)took note of the Agreement, acknowledged the role con-ferred upon the Secretary-General and authorized theSecretary-General to carry out the tasks entrusted to himin the Agreement.57 The resolution reads as follows:

The General Assembly,Considering that the Governments of Indonesia and the Netherlands

have resolved their dispute concerning West New Guinea (West Irian),Noting with appreciation the successful efforts of the Acting

Secretary-General to bring about this peaceful settlement,Having taken cognizance of the Agreement between the Republic

of Indonesia and the Kingdom of the Netherlands concerning WestNew Guinea (West Irian),

1. Takes note of the Agreement;2. Acknowledges the role conferred upon the Secretary-General in

the Agreement;3. Authorizes the Secretary-General to carry out the tasks entrusted

to him in the Agreement.

33. The role and authorized tasks of the Secretary-Generalwere therefore those spelled out in the bilateral Agreement.The direct responsibility for the administration of WestNew Guinea (West Irian) between 1 October 1962 and1 May 1963 was consequently exercised by UNTEA withinthe framework and in accordance with the relevant pro-visions set forth in the Agreement between Indonesia andthe Netherlands, in particular articles II to XIII and XXIIto XXVI, and related understandings to the Agreement.58

Articles II to XIII and XXII to XXVI read as follows :

TRANSFER OF ADMINISTRATION

Article IIAfter the adoption of the resolution referred to in article I, the

Netherlands will transfer administration of the territory to a UnitedNations Temporary Executive Authority (UNTEA) established byand under the jurisdiction of the Secretary-General upon the arrivalof the United Nations Administrator appointed in accordance with

55 Ibid., vol. 437, p . 273.56 See Official Records of the General Assembly, Seventeenth Session,

Annexes, agenda item 89, document A/5170 and A d d . l .57 As provided in article I .58 The provisions of the Agreement concerning Indonesian admini-

stration of the territory and the exercise by the territory's inhabitantsof the act of self-determination, including the role of the Secretary-General relating thereto, are irrelevant to the question under considera-tion. With regard to these matters see Official Records of the GeneralAssembly, Twenty-fourth Session, Annexes, agenda item 98, documentA/7723 and General Assembly resolution 2504 (XXIV) of 19November 1969.

article IV. The U N T E A will in turn transfer the administration toIndonesia in accordance with article XII .

UNITED NATIONS ADMINISTRATION

Article IIIIn order to facilitate the transfer of administration to the U N T E A

after the adoption of the resolution by the General Assembly, theNetherlands will invite the Secretary-General to send a representativeto consult briefly with the Netherlands Governor of the territory priorto the latter's departure. The Netherlands Governor will depart priorto the arrival of the United Nations Administrator.

Article IVA United Nations Administrator, acceptable to Indonesia and the

Netherlands, will be appointed by the Secretary-General.

Article VThe United Nations Administrator, as chief executive officer of the

U N T E A , will have full authority under the direction of the Secretary-General to administer the territory for the period of the U N T E Aadministration in accordance with the terms of the presentAgreement.

Article VI1. The United Nations flag will be flown during the period of

United Nations administration.2. With regard to the flying of the Indonesian and Netherlands

flags, it is agreed that this matter will be determined by agreementbetween the Secretary-General and the respective Governments.

Article VIIThe Secretary-General will provide the U N T E A with such security

forces as the United Nations Administrator deems necessary; suchforces will primarily supplement existing Papua (West Irianese) policein the task of maintaining law and order. The Papuan VolunteerCorps, which on the arrival of the United Nations Administrator willcease being part of the Netherlands armed forces, and the Indonesianarmed forces in the territory will be under the authority of, and at thedisposal of, the Secretary-General for the same purpose. The UnitedNations Administrator will, to the extent feasible, use the Papuan(West Irianese) police as a United Nations security force to maintainlaw and order and, at his discretion, use Indonesian armed forces. TheNetherlands armed forces will be repatriated as rapidly as possibleand while still in the territory will be under the authority of theU N T E A .

Article VIIIThe United Nations Administrator will send periodic reports to the

Secretary-General on the principal aspects of the implementation ofthe present Agreement. The Secretary-General will submit full reportsto Indonesia and the Netherlands and may submit, at his discretion,reports to the General Assembly or to all United Nations Members.

F I R S T PHASE OF THE U N T E A ADMINISTRATION

Article IXThe United Nations Administrator will replace as rapidly as

possible top Netherlands officials, as defined in annex A, with non-Netherlands, non-Indonesian officials during the first phase of theU N T E A administration which will be completed on 1 May 1963. TheUnited Nations Administrator will be authorized to employ on atemporary basis all Netherlands officials other than top Netherlandsofficials defined in annex A, who wish to serve the U N T E A , inaccordance with such terms and conditions as the Secretary-Generalmay specify. As many Papuans (West Irianese) as possible will bebrought into administrative and technical positions. T o fill the remain-ing required posts, the U N T E A will have authority to employ per-sonnel provided by Indonesia. Salary rates prevailing in the territorywill be maintained.

Article XImmediately after the transfer of administration to the UNTEA,

the UNTEA will widely publicize and explain the terms of the presentAgreement, and will inform the population concerning the transfer ofadministration to Indonesia and the provisions for the act of self-determination as set out in the present Agreement.


Article XITo the extent that they are consistent with the letter and spirit of the

present Agreement, existing laws and regulations will remain in effect.The UNTEA will have the power to promulgate new laws and regula-tions or amend them within the spirit and framework of the presentAgreement. The representative councils will be consulted prior to theissuance of new laws and regulations or the amendment of existinglaws.

SECOND PHASE

Article XIIThe United Nations Administrator will have discretion to transfer

all or part of the administration to Indonesia at any time after thefirst phase of the UNTEA administration. The UNTEA's authoritywill cease at the moment of transfer of full administrative control toIndonesia.

Article XIIIUnited Nations security forces will be replaced by Indonesian

security forces after the first phase of the UNTEA administration.All United Nations security forces will be withdrawn upon the transferof administration to Indonesia.

RIGHTS OF THE INHABITANTS

Article XXII1. The UNTEA and Indonesia will guarantee fully the rights,

including the rights of free speech, freedom of movement and ofassembly, of the inhabitants of the area. These rights will include theexisting rights of the inhabitants of the territory at the time of thetransfer of administration to the UNTEA.

2. The UNTEA will take over existing Netherlands commitmentsin respect of concessions and property rights.

3. After Indonesia has taken over the administration it will honourthose commitments which are not inconsistent with the interests andeconomic development of the people of the territory. A jointIndonesian-Netherlands commission will be set up after the transferof administration to Indonesia to study the nature of the above-men-tioned concessions and property rights.

4. During the period of the UNTEA administration there will befreedom of movement for civilians of Indonesian and Netherlandsnationalities to and from the territory.

Article XXIIIVacancies in the representative councils caused by the departure

of Netherlands nationals, or for other reasons, will be filled as appro-priate consistent with existing legislation by elections, or by appoint-ment by the UNTEA. The representative councils will be consultedprior to the appointment of new representatives.

FINANCIAL MATTERS

Article XXIV1. Deficits in the budget of the territory during the UNTEA

administration will be shared equally by Indonesia and theNetherlands.

2. Indonesia and the Netherlands will be consulted by theSecretary-General in the preparation of the UNTEA budget and otherfinancial matters relating to United Nations responsibilities under thepresent Agreement; however, the Secretary-General will have thefinal decision.

3. The Parties to the present Agreement will reimburse the Secre-tary-General for all costs incurred by the United Nations under thepresent Agreement and will make available suitable funds in advancefor the discharge of the Secretary-General's responsibilities. TheParties to the present agreement will share on an equal basis thecosts of such reimbursements and advances.

PREVIOUS TREATIES AND AGREEMENT

Article XXVThe present Agreement will take precedence over any previous

agreement on the territory. Previous treaties and agreements regarding

the territory may therefore be terminated or adjusted as necessary toconform to the terms of the present Agreement.

PRIVILEGES AND IMMUNITIES

Article XXVIFor the purposes of the present Agreement, Indonesia and the

Netherlands will apply to United Nations property, funds, assets andofficials the provisions of the Convention on the Privileges andImmunities of the United Nations. In particular, the United NationsAdministrator, appointed pursuant to article IV, and the UnitedNations Representative, appointed pursuant to article XVII, willenjoy the privileges and immunities specified in section 19 of theConvention on the Privileges and Immunities of the United Nations.

34. The understandings relating to the Agreement59 dealtwith questions such as the cessation of hostilities (cease-fire), financial matters during the period of administrationby UNTEA, issue of passports and consular protectionduring the administration by UNTEA, and modalities oftransfer of authority over West New Guinea (West Irian).This last understanding reads as follows:

IV

Aide-memoire [dated 15 August 1962] from the Acting Secretary-Generalhanded to the Representative of Indonesia

1. The authority of the Government of the Netherlands over theterritory will be terminated when the Special Representative of theSecretary-General takes charge. On the same day the United Nationsflag will be hoisted.

2. From the same date the withdrawal and repatriation of thearmed forces of the Netherlands will begin under the supervision of theSecretary-General's Special Representative and will be concluded assoon as possible.

3. On 31 December 1962 the Netherlands flag will be struck, andthe Indonesian flag be hoisted side by side with the United Nationsflag.

4. The transfer of authority to Indonesia will be effected as soon aspossible after 1 May 1963.

Aide-memoire [dated 15 August 1962] from the Acting Secretary-Generalhanded to the Representatives of the Netherlands

1. The authority of the Government of the Netherlands over theterritory will be terminated when the Special Representative of theSecretary-General takes charge. On the same day the United Nationsflag will be hoisted.

2. From the same date the withdrawal and repatriation of the armedforces of the Netherlands will begin under the supervision of the Secre-tary-General's Special Representative and will be concluded as soonas possible.

3. On the day of the transfer of authority to the United Nations,the Netherlands flag will be hoisted side by side with the UnitedNations flag, and it will fly until 31 December 1962.

4. The transfer of authority to Indonesia will be effected as soon aspossible after 1 May 1963.

35. More interesting, so far as the question under con-sideration is concerned, was the understanding concerningthe issue of passports and consular protection during theadministration of UNTEA. Firstly, the matter was notmentioned in the body of the Agreement itself. Secondly,as a whole it appears not only to be an ancillary understand-ing or agreement between the contracting parties to themain Agreement but also to be an understanding or agree-ment between them and the Secretary-General of theUnited Nations. It reads as follows:

39 United Nations, Treaty Series, vol. 437, p. 292.


IIILetter [dated 15 August 1962] from the Representative of Indonesia andthe Representatives of the Netherlands to the Acting Secretary-General

On behalf of our respective Governments, on the occasion of thesignature of the Agreement between the Republic of Indonesia and theKingdom of the Netherlands concerning West New Guinea (WestIrian), we have the honour to bring to your attention the followingagreement arrived at between our Governments and hereby placed onrecord, concerning the issue of passports and consular protection dur-ing the period of the administration by the United Nations TemporaryExecutive Authority (UNTEA) provided for in the aforesaid Agree-ment:

1. The UNTEA shall have the authority at its discretion to issuetravel documents to Papuan (West Irianese) applying therefor withoutprejudice to their right to apply for Indonesian passports instead;

2. The Government of Indonesia and of the Netherlands shall atthe request of the Secretary-General furnish consular assistance andprotection abroad to Papuans (West Irianese) carrying the traveldocuments mentioned in the previous paragraph, it being for the personconcerned to determine to which consular authority he should apply.

Should the above be acceptable to you, we have the honour furtherto propose that the note and your reply to the above effect shall beregarded as constituting and placing upon record the agreementreached in this matter.

Identical letters [dated 15 August 1962] from the Acting Secretary-General to the Representative of Indonesia and to the Representativesof the Netherlands

I have the honour to acknowledge the receipt of the note of today'sdate addressed to me by the representatives of the Republic of Indo-nesia and the Kingdom of the Netherlands, concerning the issue ofpassports and consular protection during the period of the admini-stration by the United Nations Temporary Executive Authority(UNTEA) of the territory of West New Guinea (West Irian), and read-ing as follows:

[See text of preceding note.]In reply I have the honour to inform you that I am prepared to in-

struct the UNTEA, when it is established as provided for in the Agree-ment between the Republic of Indonesia and the Kingdom of theNetherlands concerning West New Guinea (West Irian), to undertakethe function referred to in the note under reference. I would like to takethis occasion to request your Government to undertake consularassistance and protection abroad to Papuans (West Irianese) as pro-vided in paragraph 2 of the note under reference.

This note and your note under reference shall be regarded asconstituting and placing on record the agreement reached on thismatter.

[Identical letters dated 15 August 1962 from the Representative ofIndonesia and the Representatives of the Netherlands to the ActingSecretary-General]I [We] have the honour to acknowledge the receipt of your note of

today's date, indicating your willingness to undertake certain functionsconcerning issue of passports during the period of the administrationby the United Nations Temporary Executive Authority (UNTEA)of the territory of West New Guinea (West Irian) and requesting my[our] Government to undertake consular assistance and protectionabroad to Papuans (West Irianese) requesting such assistance and pro-tection during the period of the UNTEA Administration. I [We]have the honour to inform you that my [our] Government will under-take such consular assistance and protection.

36. Neither the main Agreement nor the related under-standings provided expressly for the participation by theUnited Nations, the Secretary-General or UNTEA inagreements "on behalf" of West New Guinea (West Irian)during the period of direct responsibility for the adminis-

tration of the territory. UNTEA was conceived in theAgreement as a temporary undertaking, of less than oneyear duration, designed to facilitate the process of trans-ferring administration over West New Guinea (West Irian)from one State (Netherlands) to another (Indonesia). More-over, article XXV of the Agreement (see above) did notabrogate or terminate the application to the territory oftreaties and agreements previously extended to it, butlimited itself to proclaiming the Agreement's precedence"over any previous agreement on the territory" and to pro-viding that "previous treaties and agreements regarding theterritory may therefore be terminated or adjusted as neces-sary to conform to the terms of the present Agreement".60

37. During the UNTEA administration there were, how-ever, instances of legal arrangements or transactions of aspecific and short-term nature between UNTEA and otherentities, mainly in connexion with matters relating to theeconomic stability of the territory during the UNTEAadministration,61 but such arrangements or transactionsdid not have the character of an international agreementor treaty made by UNTEA "on behalf" of West NewGuinea (West Irian).38. The implementation of article VII of the Agreementbetween Indonesia and the Netherlands did require theconclusion of a treaty, namely the Exchange of lettersconstituting an agreement between the United Nations andPakistan concerning the United Nations Security Force inWest New Guinea (West Irian) (New York, 6 December1962 and 18 April 1963).62 However, as the title indicates,

60 By a communication addressed to F A O on 28 December 1964,the Government of the Netherlands informed that Organization that ,as a consequence of the Agreement between the Netherlands andIndonesia and the Understandings between the United Nations andthe Netherlands and Indonesia, all signed at the Headquarters of theUnited Nations, New York, on 15 August 1962, the Government of theNetherlands considered that, having ratified the Plant ProtectionAgreement for the South-East Asia and Pacific Region, done at Rome,on 27 February 1956, with respect to Netherlands New Guinea, it hadceased to be a party to that Agreement as from 1 October 1962, thedate of transfer of the administration of that territory to U N T E A(see United Nations, Treaty Series, vol. 527, p . 308).

61 Fo r an account of the activities of U N T E A during the administra-tion of the territory, see the Annual Report of the Secretary-Generalon the Work of the Organization submitted to the General Assemblyat its eighteenth session, in which it is said, inter alia, that

"The more important public works projects completed byU N T E A included the ocean wharf and a large hospital at Biak andbuildings for the New Guinea Council and the Court of Justice;the extension and improvement of the Sentani airport at Hollandia/Kotabaru and the building of an airstrip at Wamena in the centralhighlands; and also the rehabilitation and extension of the watersupply system at Hollandia/Kotabaru, Biak, Seroei, Fak F a k andMerauke. The Agricultural Research Station at Minokwari, financedby the European Economic Community, was also completed duringthe U N T E A period.

" In a territory where practically all consumer goods have to beimported from the outside, U N T E A maintained a constant watchon the supply situation, with a view to maintaining adequate stocks.To this end, shipping services were maintained by agreement firstwith a Netherlands shipping company and later with an Indonesiancompany. Foreign exchange was provided to import buffer stocksof essential commodities and an agreement was concluded to takeover and distribute the existing stocks between Indonesian importersand the outgoing Dutch firms." {Official Records of the GeneralAssembly, Eighteenth Session, Supplement No. 1 (A/5501), p p . 3 5 -40).62 United Nations, Treaty Series, vol. 503, p . 25. It incorporated the

"General Directive concerning the United Nations Security Force inWest New Guinea (West I r ian)" issued by the Secretary-General.


that exchange of letters constituted an agreement concludedbetween Pakistan and the United Nations itself, and notbetween Pakistan and the United Nations "on behalf" ofthe territory of West New Guinea (West Irian). TheExchange of Letters was registered and published.39. Lastly, it should be noted that the United Nations didnot conclude any treaty in connexion with the implementa-tion of the related understanding concerning use of pass-ports and consular protection referred to above.63 Withregard to the issuance of travel documents by UNTEA,the Secretary-General proceeded as summarized below:

On 21 September 1962, the Secretary-General sent a circular letterto all Member Governments in which, referring to the above agree-ment, he requested them to confirm that they would recognize andaccept as valid the aforesaid travel documents, subject to compliancewith national visa regulations, and would issue the necessary instruc-tions to the competent immigration and consular authorities to thiseffect.

In the reply to this letter, a number of Governments, including thoseof Burma, Japan, Thailand, Tunisia, India, Norway and the Unionof Soviet Socialist Republics signified that they would accept thesedocuments as valid documents. It should be noted that authority todeliver these travel documents was also given to United NationsHeadquarters in New York, under the authority of the Admini-strator.64

B. Namibia

40. By resolution 2145 (XXI) of 27 October 1966, theGeneral Assembly, inter alia, reaffirmed that the people ofSouth West Africa had the inalienable right to self-determi-nation, freedom and independence in accordance with theCharter of the United Nations, that South West Africa wasa territory having international status and that it shouldmaintain this status until it achieved independence.Furthermore, the General Assembly declared that SouthAfrica had failed to fulfil its obligations in respect of theadministration of the Mandated Territory and to ensurethe moral and material well-being and security of theindigenous inhabitants of South West Africa and had, infact, disavowed the Mandate conferred upon His BritannicMajesty on 17 December 1920 to be exercised on his behalfby the Government of the Union of South Africa. TheGeneral Assembly decided that the Mandate was thereforeterminated, that South Africa had no other right toadminister the Territory and that henceforth South WestAfrica came under the direct responsibility of the UnitedNations.

41. Having resolved that in these circumstances theUnited Nations must discharge those responsibilities withrespect to South West Africa, the General Assembly, in itsresolution 2248 (S-V) of 19 May 1967, decided to establisha United Nations Council for South West Africa respon-sible to the Assembly. Under the resolution, the Councilwas: (a) to administer South West Africa until indepen-dence, with the maximum participation of the people of theTerritory; (b) to promulgate legislation required for theadministration of the Territory until a legislative assemblycould be elected on the basis of universal adult suffrage;

(c) to take immediate measures, in consultation with thepeople of the Territory, to establish a constituent assemblywith the object of drawing up a constitution; (d) to take thenecessary measures for the maintenance of law and orderin the Territory; and (e) to transfer all powers to the peopleof the Territory upon the declaration of independence.65

The General Assembly decided that the Council shouldentrust such executive and administrative tasks as it deemednecessary to a United Nations Commissioner for SouthWest Africa responsible to the Council. By resolution 2372(XXII) of 12 June 1968, the General Assembly proclaimedthat, in accordance with the desires of its people, SouthWest Africa should be known henceforth as Namibia, anddecided that the Council should be called the United NationsCouncil for Namibia, and the Commissioner the UnitedNations Commissioner for Namibia.

42. The Security Council, by resolution 264 (1969) of20 March 1969, recognized that the General Assemblyterminated the Mandate of South Africa over Namibiaand assumed direct responsibility for the Territory until itsindependence. All States were called upon by the SecurityCouncil to refrain from all dealings with the Government ofSouth Africa purporting to act on behalf of the Territory ofNamibia,66 and all acts taken by the Government of SouthAfrica on behalf of or concerning Namibia after the termi-nation of the Mandate were declared by the Security Coun-cil illegal and invalid.67 In accordance with Article 96,paragraph 1, of the Charter, the Security Council sub-mitted, by resolution 284 (1970) of 29 July 1970, the follow-ing question to the International Court of Justice for anadvisory opinion: " What are the legal consequences forStates of the continued presence of South Africa in Namibia,notwithstanding Security Council resolution 276 (1970) ?".

43. In its advisory opinion of 21 June 1971, the Inter-national Court of Justice replied to the question as follows.

By 13 votes to 2,(1) that the continued presence of South Africa in Namibia being

illegal, South Africa is under obligation to withdraw its administrat ionfrom Namibia immediately and thus put an end to the occupation ofthe Terri tory;

By 11 votes to 4,(2) that States Members of the United Nat ions are under obligation

to recognise the illegality of South Africa's presence in Namibia and theinvalidity of its acts on behalf of, or concerning Nambia , and to refrainfrom any acts and in particular any dealings with the Government ofSouth Africa implying recognition of the legality of, or lending sup-por t and assistance to , such presence and administrat ion;

(3) that it is incumbent upon States which are not Members of theUnited Nat ions t o give assistance, within the scope of subparagraph 2above, in the action which has been taken by the United Nat ions withregard to Namibia . 6 8

63 See para . 35.64 Uni ted Nat ions , Juridical Yearbook, 1967 (op. cit.), p . 309.

65 F o r further General Assembly resolutions concerning the func-tions and responsibilities of the Council, see in particular resolutions2288 (XXII) of 7 December 1967, 2325 (XXII) of 16 December 1967,2372 (XXII) of 12 June 1968,2403 (XXIII) of 16 December 1968,2517(XXIV) of 1 December 1969, 2547 A (XXIV) of 11 December 1969,2678 (XXV) of 9 December 1970,2871 (XXVI) of 20 December 1971,3031 (XXVII) of 18 December 1972 and 3111 (XXVIII) a n d 3112(XXVIH), both of 12 December 1973.

66 Resolution 269 (1969) of 12 August 1969.67 Resolution 276 (1970) of 30 January 1970.68 Legal Consequences for States of the Continued Presence of South

Africa in Namibia (South West Africa) notwithstanding Security CouncilResolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 58.


The Security Council69 and the General Assembly70 agreedwith and welcomed the advisory opinion as expressed inparagraph 133 of that opinion.44. The General Assembly, in 1971, requested the UnitedNations Council for Namibia to continue to discharge itsfunctions and responsibilities and, in particular, to "repre-sent Namibia whenever it is required".71 Subsequently theGeneral Assembly specifically requested the United NationsCouncil for Namibia to represent the Territory "in inter-national organizations, at conferences and on any otheroccasion as may be required",72 and all subsidiary organsof the United Nations, intergovernmental bodies andconferences to ensure that the rights and interests ofNamibia were protected and to that end, among otherthings, to invite the Council to participate in an appropriatecapacity whenever such rights and interests were involved.73

Further, the General Assembly requested all specializedagencies and other organizations within the United Nationssystem and the member States thereof to take such necessarysteps as will enable the Council, as the legal authority forNamibia, to participate fully on behalf of Namibia in thework of those agencies and organizations.74

45. The United Nations Council for Namibia decided in1972 to contest South Africa's claim to represent Namibiaat the organizational meeting of the International Com-mission on Southeast Atlantic Fisheries, and to communi-cate this decision to the Director-General of FAO, the

69 Resolution 301 (1971) of 20 October 1971. In this resolution, theSecurity Council declared that franchises, rights, titles or contractsrelating to Namibia granted to individuals or companies by SouthAfrica after the adoption of General Assembly resolution 2145 (XXI)of 27 October 1966 were not subject to protection or espousal by theirStates against claims of a future lawful Government of Namibia.

70 Resolution 2871 (XXVI) of 20 December 1971. By this resolutionand resolution 3031 (XXVII) all States were called upon by theGeneral Assembly not to recognize as legally valid any rights orinterests in Namibian property or resources purportedly acquiredfrom the South African Government after 27 October 1966.

71 Resolution 2871 (XXVI). The written statement submitted by theSecretary-General to the International Court of Justice in relation tothe advisory opinion mentioned above included, inter alia, the follow-ing passages on the authority legally empowered to represent Namibia :

"115. States are therefore confronted with the simultaneousexistence of an illegal r6gime within the Territory, and at the sametime a lawful authority which, although temporarily outside theTerritory, is the only authority since the termination of the Mandatelegally empowered to represent and administer Namibia pendingthe attainment of its independence.

"116. A n immediate consequence for States is that any legalrelation, of any kind, with or involving Namibia can only beentered into or maintained through the sole authority legallyresponsible for the administration of Namibia, namely the UnitedNations Council for Namibia, acting on behalf of the GeneralAssembly. Conversely, any relation purporting to be with or toinvolve Namibia, which has been entered into or maintained throughthe Government of South Africa or the illegal South Africanadministration in Namibia since the termination of the Mandate ,is void and without legal effect.

"140. It also follows that States are precluded from recognizingany purported international representation of Namibia by SouthAfrica, and, in general, any executive, legislative or judicial act bythe Government of South Africa or its administration in Namibia,since the termination of the Mandate , purport ing to have beentaken on behalf of or concerning Namibia ."(I.C.J. Pleadings, Legal Consequences for States of the ContinuedPresence of South Africa in Namibia (South West Africa) notwith-standing Security Council Resolution 276 (1970), vol. I, pp. 104 and108-109).72 Resolution 3031 (XXVII) of 18 December 1972.73 Resolution 3111 (XXVIII) of 12 December 1973.

depositary of the Convention on the Conservation of LivingResources in the Southeast Atlantic, under which the Com-mission was being established. It also communicated to himits demand to participate in the meeting on behalf ofNamibia, so that the Territory might be legally representedand the interests of the Namibian peoples protected. TheCommission having rejected the Council's request, theDirector-General of FAO withdrew the Executive Secretarymade available by FAO to the Commission, and informedthe United Nations Council for Namibia of the action takenby the Commission and his decision. He added that hewould review current and future collaboration betweenFAO and the Commission.75

46. Pursuant to the relevant provisions of GeneralAssembly and Security Council resolutions and in accord-ance with the advisory opinion of the International Court ofJustice, the United Nations Council for Namibia has con-tinued to represent or to seek representation of Namibiaand to protect the interests of the Namibian people at inter-national conferences76 in the specialized agencies and insti-tutions of the United Nations system77 and in otherbodies.78 It intends to secure membership in the specializedagencies and represent Namibia at conferences and meet-ings where appropriate. In its report to the twenty-eighthsession of the General Assembly, the Council recommendedthat the Assembly request all specialized agencies and otherinstitutions within the United Nations system to implementthe resolutions of the United Nations and the advisoryopinion of the International Court of Justice and, in par-ticular, to accept the Council and grant it membership asthe authority entitled to represent Namibia and give favour-able consideration to the waiver of an assessment for contri-butions to their budgets.79 The General Assembly, byresolution 3111 (XXVIII), approved the Council's reportand the recommendations contained therein.

47. An application for associate membership in WHOmade on behalf of Namibia by the United Nations Councilfor Namibia was considered by the Twenty-seventh WorldHealth Assembly. The application, dated 26 March 1974,was signed by the United Nations Commissioner forNamibia and addressed to the Director-General of the

75 Official Records of the General Assembly, Twenty-seventh Session,Supplement No. 24 (A/8724), vol. I , paras. 126-131. See alsoA/AC.131/L.4.

76 In 1973, the Council was represented at the International Confer-ence of Experts for the Support of Victims of Colonialism andApartheid in South Africa and the first session of the Third UnitedNations Conference on the Law of the Sea convened by the UnitedNations. The General Assembly invited the Council to attend, as anobserver, the 1974 United Nations Conference on Prescription(Limitation) in the International Sale of Goods .

77 Questions of membership and participation were discussed in1973 between a delegation of the Council and officials of the I L O ,F A O , U N E S C O , W H O and U N H C R . In 1973, the Council wasrepresented at the Fifth Africa-Indian Ocean Regional Air Naviga-tion Meeting convened by ICAO and at the Four th ILO AfricanRegional Conference held in Nairobi .

78 The Council has been represented at meetings of various organsof O A U since 1970. It sent a mission to attend in 1972 the NamibiaInternational Conference held in Brussels and organized by theSouth West Africa People's Organization (SWAPO) and a Belgiannational committee and, in 1973, various meetings organized by theWorld Peace Council.

79 Official Records of the General Assembly, Twenty-eighth Session,Supplement No. 24 (A/9024), para. 336, recommendation 19.


World Health Organization. The text of the letter of appli-cation read as follows:

Further to our discussions earlier this month, I now have the honourto submit to you on behalf of the United Nations Council for Namibiathe application of Namibia as an Associate Member of the WorldHealth Organization under the provisions of Article 8 of the WHOConstitution.

The authority under which this application is submitted is based onthe following resolutions of the General Assembly:

(a) 2145 (XXI), paragraphs 4 and 5, by which it was decided toterminate the mandate of South Africa over Namibia, and that hence-forth Namibia would come under the direct responsibility of the UnitedNations, and that in these circumstances the United Nations mustdischarge those responsibilities with respect to Namibia.

(b) 2248 (S-V) section II, paragraph 1, which in implementation ofthe previous resolution established the United Nations Council forNamibia to administer Namibia until independence, with the maxi-mum possible participation of the people of the Territory, and whichfurther contains the terms of reference of the Council, and also,in paragraph 3 of that section, provides for the appointment of aUnited Nations Commissioner for Namibia.

(c) 3111 (XXVIII) section II, paragraph 1, in which the specializedagencies and other organizations within the United Nations systemand the Member States thereof are requested to take such necessarysteps as will enable the United Nations Council for Namibia, as thelegal authority for Namibia, to participate fully on behalf of Namibiain the work of those agencies and organizations.

With regard to resolution 2145 it should be noted that the Inter-national Court of Justice in their Advisory Opinion of 1971 confirmedits legality.

In addition, I wish to inform you that the Namibia liberation move-ment SWAPO, which is recognized as such by the United Nations andby the Organization of African Unity, fully participates in the work ofthe Council, and will be included, as appropriate, in any delegationrepresenting Namibia in the World Health Organization.

I am prepared, if required, to amend and add to this application sothat it fully conforms to the form prescribed by the relevant provisionsof the Rules of Procedure of the World Health Assembly relating tothis matter.80

48. Following the submission of that application theWorld Health Assembly, on 16 May 1974, admittedNamibia as an Associate Member of WHO in conformitywith article 8 of its Constitution.81 The correspondingdraft resolution co-sponsored by 51 delegations82 as orallyamended was adopted without objections.83 The resolutionadopted reads:

The Twenty-seventh World Health Assembly,Recalling the United Nations General Assembly resolution 3111

(XXVIII) requesting the specialized agencies to take such necessarysteps, as would enable the United Nations Council for Namibia toact as the legal authority for Namibia, to participate fully, on behalfof Namibia, in the work of these agencies;

Having considered the application made on behalf of Namibia bythe United Nations Council for Namibia for admission asAssociate Member of WHO;

Noting that the Namibia Liberation Movement (SWAPO) recog-nized by the United Nations and the Organization of African Unity isthe authentic representative of the Namibian people;

Having considered paragraph 1.9 of the report of the Director-General on co-ordination within the United Nations system on generalmatters,

Decides to admit Namibia as an Associate Member of WHO, inconformity with Article 8 of the Constitution of WHO and to invitethe United Nations Council for Namibia to designate a representativeto participate in the work of WHO.84

49. The World Health Assembly, on 21 May 1974,adopted likewise the following resolution concerning theassessment of Namibia for 1974:

The Twenty-seventh World Health Assembly,Noting the admission of Namibia to associate membership in the

Organization on 16 May 1974, and that notice has been given of accept-ance of associate membership on behalf of Namibia in accordancewith Rules 114 and 115 of the Rules of Procedure of the HealthAssembly;

Recalling that the Thirteenth World Health Assembly, in resolutionWHA13.16, confirmed that the assessment of Associate Members shallbe 0-02%;

Recalling further that the Twenty-second World Health Assembly,in resolution WHA22.6, decided that from 1968 new Members shallbe assessed in accordance with the practice followed by the UnitedNations in assessing new Members for their year of admission;

Decides that the assessment of Namibia for 1974 shall be reduced toone-third of 0-02 %.85

50. In addition to the question of the representation ofNamibia to international organizations, conferences andmeetings, the termination by the General Assembly of theMandate raised likewise a series of problems of treaty lawwith regard to Namibia some of which have already receiveda certain degree of consideration by organs of the UnitedNations. Highly relevant for the purpose of this study, thecorresponding developments are summarized below undertwo main headings, namely (1) Review of multilateral andbilateral treaties concluded by South Africa affectingNamibia and (2) International agreements concluded bythe United Nations Council for Namibia. The GeneralAssembly has also called for the application in Namibiaor to Namibians of certain existing treaty provisions orinternational standards relating to protection of prisonersand civilian population.86

1. REVIEW OF MULTILATERAL AND BILATERAL TREATIESCONCLUDED BY SOUTH AFRICA AFFECTING NAMIBIA

51. On the recommendation of its Ad Hoc Sub-Committeeon Namibia,87 the Security Council, by resolution 283 (1970)

80 W H O document A27/33.81 For the text of article 8 of the W H O Constitution see above Part

One, sect. B, 3(c).82 W H O document A27/36 and Add .1 -3 .83 See Official Records of the World Health Organization, 1974,

N o . 218, Tenth plenary meeting. Some delegations expressed reserva-tions concerning the third preambular paragraph.

84 Resolution WHA27.23.85 Resolution WHA27.39.86 The 1949 Geneva Conventions relative to the Treatment of

Prisoners of War and to the Protection of Civilian Persons in Time ofWar and the 1955 Standard Minimum Rules for the Treatment ofPrisoners (General Assembly resolutions 2547 A (XXIV), 2678 (XXV)and 2871 (XXVI)).

87 Official Records of the Security Council, Twenty-fifth Year,Supplement for July, August and September 1970 (document S/9863and Add.l/Rev.l). In response to a request from the Ad Hoc Sub-Committee addressed to all States concerned for information on,inter alia, any multilateral or bilateral treaties or other legal instrumentsbetween themselves and South Africa applying directly or otherwiseto the Territory of Namibia, the replies of 8 of the 53 States respondingindicated that treaties existed between themselves and South Africawhich might or might not apply to Namibia (Austria, Denmark,Finland, the Federal Republic of Germany, Norway, Sweden, theUnited Kingdom and the United States of America) (ibid., annex I).The Ad Hoc Sub-Committee also requested relevant informationfrom all specialized agencies, IAEA and UNDP. The ILO indicatedthat under its constituent instrument, South Africa was obliged tosubmit to the ILO reports concerning the implementation of fourmultilateral treaties, concluded between 1925 and 1948, applicable to

(Continued on next page.)


of 29 July 1970 requested all States to undertake withoutdelay a detailed study and review of all bilateral treatiesbetween themselves and South Africa in so far as thesetreaties contain provisions by which they apply to theTerritory of Namibia.88 It also requested the Secretary-General to undertake without delay a detailed study andreview of all multilateral treaties to which South Africa is aparty and which, either by direct reference or on the basis ofrelevant provisions of international law, might be con-sidered to apply to the Territory. The requested study wassubmitted by the Secretary-General in a document dated12 August 1971.89

52. In his written statement submitted to the InternationalCourt of Justice, the Secretary-General included the follow-ing paragraphs concerning treaties and other internationalagreements:

120. Similarly, international treaties or agreements, or amend-ments thereof, concluded with South Africa, or the illegal SouthAfrican administration of Namibia, subsequent to the termina-tion of the Mandate have no legal application to Namibia. Thisconsequence results by operation of law from the fact that the Govern-ment of South Africa had no right or authority to act for Namibia atthe material time, and consequently no act or signature by SouthAfrica since the termination of the Mandate could engage theresponsibility of Namibia or impose on the latter any new rights orobligations.

121. By the same token, the Government of South Africa has noauthority after the termination of the Mandate to invoke or claim anyrights or obligations on behalf of Namibia, under treaties betweenNamibia and other States concluded while the Mandate was still inforce. However, although this may affect the capability of perform-ance of some such treaty obligations, it would not lessen the legalvalidity of otherwise valid treaties as between the lawful parties thereto.

122. For treaties and agreements concluded with the Governmentof South Africa prior to the termination of the Mandate and havingapplication to Namibia may not be invalidated solely by reason of thetermination of the Mandate and the cessation of the authority of theGovernment of South Africa to act on Namibia's behalf. Such treatiesand agreements may, however, be temporarily incapable of perform-ance, or have become terminable as a result of a fundamental changein circumstances (rebus sic stantibus) or conflict with a peremptorynorm of general international law (ius cogens). Moreover, it will befor the future lawful Government of Namibia to determine the extentof its continuing treaty relationships, arising from past as well ascurrent treaties, in accordance with the relevant principles of inter-national law.

123. If a treaty lawfully concluded while the Mandate was in forcerequires for its implementation a further act by the territorial govern-ment or administration at the time when the treaty is invoked, theneven if such a treaty still remains in force, it could not be brought intooperation by any further act of the South African Government or theillegal South African administration in Namibia after the terminationof the Mandate.

(Continued)the Territory. After the termination of the Mandate by GeneralAssembly resolution 2145 (XXI), the I L O ceased to address to SouthAfrica requests for such reports. I T U indicated that its AdministrativeCouncil in resolving that South Africa no longer had the right torepresent the Territory of South West Africa, noted that SouthAfrica's instrument of accession to the constituent instrument of theUnion had included accession on behalf of the Territory (ibid., annexID.

88 In response to notes verbales of the Secretary-General concerningthe implementation of resolution 283 (1970), 40 States submittedreplies, of which 2 (Austria and Greece) indicated bilateral treatiescontaining provisions by which they might apply to Namibia (ibid.,Twenty-sixth Year, Special Supplement No. 5 (S/1O33O), annex).

89 Ibid., Twenty-sixth Year, Supplement for July, August andSeptember 1971, document S/10288.

124. Fo r example, an extradition treaty purporting to extend t oNamibia, however lawfully it may have been concluded, would notobligate a State to deliver up any person to, or at the request of theillegal South African regime in Namibia, or a government (such as theSouth African Government) having no authority to invoke any treatyobligation in respect of Namibia. It is incumbent on States not tocomply with such an unlawful request.

125. It is also a duty of States not to grant extradition for any actcommitted in furtherance of the struggle of the people of Namibiaagainst foreign occupation (for which struggle, the Security Councilrequested all States to increase their moral and material assistance),or for an offence under a South African law deemed to be illegal andinvalid either by reason of inconsistency with or repugnance to the pro-visions of the United Nations Charter or peremptory norms ofinternational law.

126. States which are parties to international treaties or agreementsapplicable to Namibia would also be precluded from accepting thatany obligation owing thereunder to Namibia had been, or could belegally discharged by a payment to or settlement with the Governmentof South Africa, after the termination of the Mandate . For in thesecircumstances, the obligation would remain legally undischarged,and still owing to the lawful administration of Namibia (for the timebeing, the United Nations Council for Namibia, acting under the re-sponsibility of the General Assembly).90

53. In its advisory opinion, the International Court ofJustice stated as follows:

122. For the reasons given above, and subject to the observationscontained in paragraph 125 below, member States are under obligationto abstain from entering into treaty relations with South Africa in allcases in which the Government of South Africa purports to act on be-half of or concerning Namibia. With respect to existing bilateraltreaties, member States must abstain from invoking or applying thosetreaties or provisions of treaties concluded by South Africa on behalfof or concerning Namibia which involve active intergovernmentalco-operation. With respect to multilateral treaties, however, the samerule cannot be applied to certain general conventions such as those of ahumanitarian character, the non-performance of which mayadversely affect the people of Namibia. It will be for the competentinternational organs to take specific measures in this respect.

125. In general, the non-recognition or South Africa's administra-tion of the Territory should not result in depriving the people ofNamibia of any advantages derived from international co-operation.In particular, while official acts performed by the Government ofSouth Africa on behalf of or concerning Namibia after the terminationof the Mandate are illegal and invalid, this invalidity cannot be ex-tended to those acts, such as, for instance, the registration of births,deaths and marriages, the effects of which can be ignored only to thedetriment of the inhabitants of the Territory.

126. As to non-member States, although not bound by Articles 24and 25 of the Charter, they have been called upon in paragraphs 2 and5 of resolution 276 (1970) to give assistance in the action which hasbeen taken by the United Nations with regard to Namibia. In the viewof the Court, the termination of the Mandate and the declaration ofthe illegality of South Africa's presence in Namibia are opposable toall States in the sense of barring erga omnes the legality of a situationwhich is maintained in violation of international law: in particular,no State which enters into relations with South Africa concerningNamibia may expect the United Nations or its Members to recognizethe validity or effects of such relationship, or of the consequencesthereof. The Mandate having been terminated by decision of the inter-

901.C.J. Pleadings, Legal Consequences for States of the ContinuedPresence of South Africa in Namibia (South West Africa) notwithstand-ing Security Council Resolution 276 (1970), vol. I, pp. 105-106. Otherstatements which refer to this matter include written statements sub-mitted to the Court by four Governments (Netherlands, ibid., p. 352,para. 6; Finland, ibid., p. 375, para. 16; United States, ibid., pp. 881—882,884-887, part II, chapter III, sections I.D and Il.b; and Nigeria,ibid., p. 896, para. 24(iv)) and oral statements made before the Courtby the representatives of five Governments and one organization(South Africa, ibid., vol. II, pp. 11-15; OAU and Nigeria, ibid.,pp. 103-104, 131; India, ibid., p. 118; Pakistan, ibid., p. 144; andRepublic of Viet-Nam, ibid., p. 285).


national organization in which the supervisory authority over itsadministration was vested, and South Africa's continued presence inNamibia having been declared illegal, it is for non-member States toact in accordance with those decisions.91

54. By resolution 301 (1971) of 20 October 1971, theSecurity Council, having considered the report of its AdHoc Sub-Committee on Namibia92 called upon all States,in the discharge of their responsibilities towards the peopleof Namibia and subject to the exceptions set forth in para-graphs 122 and 125 of the advisory opinion of the Inter-national Court of Justice quoted above: (a) to abstain fromentering into treaty relations with South Africa in all casesin which the Government of South Africa purports to acton behalf of or concerning Namibia; (b) to abstain frominvoking or applying those treaties or provisions of treatiesconcluded by South Africa on behalf of or concerningNamibia which involve active intergovernmental co-operation; and (c) to review their bilateral treaties withSouth Africa in order to ensure that they are not inconsis-tent with the decisions of the Security Council.93 TheSecurity Council also requested its Ad Hoc Committee onNamibia to review all treaties and agreements which arecontrary to the provisions of resolution 301 (1971) in orderto ascertain whether States have entered into agreementswhich recognize South Africa's authority over Namibia,and to report periodically thereon.94

55. The report of the United Nations Council for Namibiato the twenty-sixth session (1971) of the General Assemblynoted that South Africa continued to represent Namibia insuch overt cases as bilateral treaties concluded since Octo-ber 1966 in which the Republic was defined as includingthe Territory or in which a specific provision included theTerritory within the scope of applicability of the treaty.Noting also that in its ratification of the 1969 multilateralConvention on the Conservation of Living Resources in theSoutheast Atlantic95 South Africa had included the terri-torial waters of Namibia in those of the Republic, the reportstated the following:

It is probable that South Africa similarly represents Namibia defacto in respect of the subject matter of many other multilateral con-ventions and will continue to do so unless the Council for Namibia issubstituted for the Republic in appropriate existing Conventions in sofar as Namibia is concerned and is allowed to negotiate, sign and ratifyfuture multilateral conventions directly or indirectly affecting theTerritory.96

56. In the same report, the United Nations Council forNamibia included among the proposals for future action

91 Legal Consequences for States ... (op. cit.), Advisory Opinion,LC.J. Reports, 1971 (op. cit.), p p . 55-56.

92 Official Records of the Security Council, Twenty-sixth Year, SpecialSupplement No. 5 (S/1O33O).

93 The repor t of the Secretary-General on the implementation ofresolution 301 (1971) included the replies of twenty States, none ofwhich indicated treaties t o which they and South Africa were partieswhich might be applicable to Namibia , ibid., Twenty-seventh YearSupplement for April, May and June 1972, document S/10708; ibid.,Supplement for July, August and September 1972, document S/10708/A d d . l ; and ibid., Supplement for October, November and December,1972, document S/10708/Add.2.

94 At the date of publication of this study, the mat ter remains underconsideration by the Ad Hoc Sub-Committee, which has not so farsubmitted a report thereon to the Security Council .

95 See para . 45 above.96 Official Records of the General Assembly, Twenty-sixth Session,

Supplement No. 24 (A/8424), para . 94.

the seeking by the Council of (a) the right to participate inthe negotiation and to sign and ratify all international con-ventions dealing with subjects which affect Namibian in-terests and (b) the substitution of the Council for SouthAfrica as a party to all multilateral treaties applying toNamibia which are of such a nature that, according to theInternational Court of Justice, their non-performance mightadversely affect the Namibian people. In addition, theCouncil for Namibia recommended to the GeneralAssembly that it, inter alia, (a) recommend that thespecialized agencies and organizations of the UnitedNations take all the necessary steps, in accordance withtheir respective constitutions, to enable the Council toparticipate on behalf of the Territory in the negotiation,signature and ratification of all conventions which areuniversal in application or which affect Namibia; and (b)request the Secretary-General to provide a list of all bilateraltreaties registered with the United Nations to which SouthAfrica is a party and which have been extended to Namibia,and call upon all Member States (i) not to enter into anyfurther treaties with South Africa which include Namibia;(ii) not to extend any existing treaties to Namibia; and(iii) not to invoke or apply to Namibia in any way treatyprovisions already extended to Namibia, except in circum-stances in which failure to do so would adversely affect theNamibian people.97 At its twenty-sixth session, the GeneralAssembly, while following some of the Council recom-mendations in adopting resolution 2871 (XXVI), did notspecifically adopt the Council's recommendations concern-ing treaties referred to above.

57. In its report to the twenty-seventh session of theGeneral Assembly (1972), the United Nations Council forNamibia reiterated the recommendations concerningtreaties which it had submitted in 1971,98 By resolution 3031(XXVII) the General Assembly requested the Council tocontinue to examine the question of bilateral and multi-lateral treaties which explicitly or implicitly includeNamibia, and to seek to replace South Africa as the partyrepresenting Namibia in all relevant bilateral and multi-lateral treaties. The Council was also requested to undertakea study on the compliance of Member States with the rele-vant United Nations resolutions, taking into account theadvisory opinion of the International Court of Justicerelating to Namibia.58. To initiate the study of such matters, the Council onthe basis of a draft prepared by its Standing Committee II,submitted in 1973 a questionnaire to all Member Statesrequesting full and detailed information on, inter alia,

(17) Treaty relations between your Government and South Africainvolving Namibia, in particular:

(a) Bilateral treaties between your Government and South Africain so far as they contain provisions by which they apply to theTerritory of Namibia;

(b) Treaty relations of States in all cases in which the Governmentof South Africa purports to act on behalf of or concerning Namibia ;

(c) Treaties concluded by South Africa on behalf of or concerningNamibia which involve active intergovernmental co-operation.

97 Ibid., paras. 196 (b) and (d), and 197, recommendations 2(6)and 4.

98 Ibid., Twenty-seventh Session, Supplement No. 24 (A/8724),vol. I, para. 254, recommendations 6(6) and 11.


Has your Government denounced the treaties referred to or at leastrefrained from extending their application to Namibia?"

59. The recommendations submitted by the Council forNamibia to the General Assembly at its twenty-eighthsession (1973) included the following:

(10) Approve the proposals of the Council to:(a) Continue its study of the compliance of Member States with

decisions and resolutions of the United Nations relating to Namibia;

(c) Act on the list of bilateral and multilateral treaties involvingSouth Africa to ensure that they conform to the advisory opinion ofthe International Court of Justice of 1971;

(d) Consult with the European Economic Community (EEC) withregard to any contacts or understandings between EEC and SouthAfrica that would be in violation of the advisory opinion of theInternational Court of Justice of 1971;

(e) Conduct a detailed study of issues relating to the frontiers ofNamibia with particular reference to the status of Walvis Bay, theCaprivi Strip and the frontier with Angola;

(14) Request all countries with bilateral agreements with SouthAfrica, especially double taxation agreements and those containing"most-favoured-nation" clauses, to consult with the Council forNamibia and the Secretary-General concerning the possible violationof their international legal obligations.

(18) Reiterate its request to all States to prohibit nationals and com-panies under their jurisdiction from participating in the Cunene RiverBasin scheme and to refuse diplomatic protection for any purportedcontracts, because they would be based on a bilateral agreement be-tween the South African and Portuguese regime which is illegal andinvalid.

(20) Request all international organizations in the United Nationsfamily and International Court of Justice to co-operate to the maxi-mum extent possible, including the provision of background andtechnical information relating to international treaties, conventionsand other forms of international co-operation relating to the interestof the Namibian people.100

By resolution 3111 (XXVIII), the General Assemblyapproved the report of the United Nations Council forNamibia, including the recommendations contained thereinand, in particular, requested all States which have agree-ments with South Africa relating to Namibia to enter intoconsultations with the Council and the Secretary-Generalwith a view to concluding new agreements, as appropriate,on matters covered by the previous ones.

2. INTERNATIONAL AGREEMENTS CONCLUDED BY THEUNITED NATIONS COUNCIL FOR NAMIBIA

60. In its first report to the General Assembly, the UnitedNations Council for Namibia noted that one of the ad-ministrative matters before it was the question of issuingpassports to Namibians.101 The Acting Commissioner forthe Territory submitted to the Council a note on the ques-tion whether the powers entrusted to the Council by GeneralAssembly resolution 2248 (S-V) included the issuance oftravel documents to the inhabitants or citizens of the

Territory. The note concluded that "it would appear thatthere is sufficient precedent for the Council to considermaking arrangements for the issue" of such travel docu-ments.102 In its second report, the Council decided in prin-ciple to proceed with arrangements for the issuance, at anearly date, of travel documents in the Council's name.103

By resolution 2372 (XXII), the General Assembly decidedthat the Council for Namibia shall continue with a sense ofurgency its consultations on the question of issuing toNamibians travel documents enabling them to live abroad.61. At the request of the Council, the Secretary-General,in 1968, addressed a note verbale to States Members of theUnited Nations and members of the specialized agenciesrequesting them to undertake to recognize, and accept asvalid, the travel and identity documents issued by the UnitedNations Council for Namibia to Namibians, as subject tothe usual visa requirements of each State concerned. In itsreport to the twenty-eighth session of the General Assembly,the Council noted that 84 States had, as of 31 August 1973,agreed to accept the validity of the Council's travel andidentity documents.10* Two of the States whose replieshave been reproduced in documents of the Council havenot accepted the validity of the documents.105 The GeneralAssembly, by resolution 2678 (XXV) and 2871 (XXVI)

99 Ibid., Twenty-eighth Session, Supplement No. 24 (A/9024), annexII . See also ibid., paras . 11 and 241-246.

100 Ibid., para . 336.101 Ibid., Twenty-second Session, Annexes, agenda item 64, document

A/6897, para . 16. At that time the Council was called "Uni ted Nat ionsCouncil for South West Africa" (see para . 41 above).

102 Document A/AC.131/4, reproduced in United Nations, JuridicalYearbook, 1967 (pp. cit.), pp . 309-311.

103 Official Records of the General Assembly, Twenty-second Session,Annexes, agenda item 64, document A/7088, para. 35. In anotherdevelopment, the Council, in 1972, issued a Council for Namibia visato an individual (ibid., Twenty-seventh Session, Supplement No. 24(A/8724), vol. I, para. 149). In its report to the twenty-eighth sessionof the General Assembly, the Council recommended that the GeneralAssembly recommend that all States require that their nationals obtaina visa from the Council for travel to Namibia and prohibit tourismand emigration to Namibia while it is under illegal occupation (ibid.,Twenty-eighth Session, Supplement No. 24 (A/9024), para. 336(17)).By resolution 3111 (XXVIII) the General Assembly approved theCouncil 's report and the recommendations contained therein.

104 Ibid., Twenty-eighth Session, Supplement No. 24 (A/9024), para .273 and annex I I I . Fo r the list of these States, see annex I to the presentdocument .

105 See document A/AC.131/10 and Add .1-10 . The two States whohave not accepted the validity of the Council 's travel documents areFrance and Malawi. The reply of France s tated:

' 'The practice followed with regard to the issue of travel documentsfor refugees is based in particular on the international Conventionrelating t o the Status of Refugees signed at Geneva on 28 July 1951,which, since the Protocol dealt with in General Assembly resolution2198 (XXI) , which came into force on 4 October 1967, has beenmade universal in scope and to which fifty-five States Members ofthe United Nat ions are parties.

" I t should be possible to meet the refugees' requests referred to inthe Secretary-General 's note by applying this Convention, to whichis annexed a specimen travel document to be issued by theContracting States and to which the Organization of African Unityrecently recommended accession.

" I n the circumstances, the Office of the United Nat ions HighCommissioner for Refugees, which, under the terms of the preambleto the Convention, is charged with the task of supervising inter-national conventions providing for the protection of refugees andwith which, under article 2 of the Protocol , the Contracting Statesundertake to co-operate, would seem, in view of its experience andthe means available to it, to be the body best qualified to find a prac-tical and quick solution to this problem which is likely to winimmediate support from the largest possible number of States. Thework of the Office of the High Commissioner, moreover, cannot becalled in question from the legal s tandpoint ." (A/AC.131/10, p . 7).

The reply of Malawi s tated:" T h e Malawi Government will not recognize any travel docu-

ments issued by the Council for Namib ia . " (A/AC.131/10/Add.l ,p . 3).


called upon States which have not yet done so to recognizeand accept the travel and identity documents.62. In 1970, the Council initiated discussions with thosecountries where the majority of Namibians abroad reside atpresent, concerning the modalities for issuing Council traveldocuments in their respective countries.106 As a result,the United Nations Council for Namibia has negotiatedand concluded, as of 31 December 1973, agreements withthe Governments of seven Member States (Ethiopia, Kenya,Nigeria, Uganda, United Republic of Tanzania, Zaire,Zambia) concerning the issuance by the Council of traveland identity documents to Namibians. The Governmentsconcerned granted in their respective agreement the right ofreturn to certain categories of Namibians who receive thetravel and identity documents of the Council. The GeneralAssembly, in its resolution 3031 (XXVII), requested theCouncil to continue to expand the existing scheme forissuing identity certificates and travel documents toNamibians by concluding appropriate agreements withGovernments of Member States.

63. Published in documents of the Council, the Agree-ments have been registered with the Secretariat of theUnited Nations.107 Some of them were effected by an ex-change of letters, others by signature for (and on behalf of)the Government concerned and for (and on behalf of) theUnited Nations Council for Namibia.

106 Official Records of the General Assembly, Twenty-fifth Session,Supplement No. 24 (A/8024), para. 50.

107 For the text of the Agreements, see annex II below.

Annex P

Replies from Governments concerning travel andidentity documents for Namibians

1. Up to 31 August 1973, a total of 84b affirmative replies had beenreceived from States in response to the notes by the Secretary-General,dated 12 December 1968 and 20 December 1970, in which he requestedMember States to recognize and accept as valid the travel and identitydocuments issued by the United Nations Council for Namibia toNamibians residing abroad.

2. Of this number, the following 47 States have agreed to accept thedocuments issued by the Council as valid for travel and identity pur-poses, subject to the normal visa requirements of their Governments:Austria IraqBrazil Ivory CoastBulgaria KenyaBurma Khmer RepublicCameroon KuwaitChad LaosChile Libyan Arab RepublicDahomey MalaysiaDominican Republic MaldivesEl Salvador MauritiusEthiopia MexicoGerman Democratic Republic MongoliaGuyana New ZealandHungary NigerIndia NigeriaIndonesia Pakistan

PhilippinesPolandRomaniaSaudi ArabiaSenegalSyrian Arab RepublicTogoTunisiaUganda

Ukrainian SovietSocialist Republic

Union of SovietSocialist Republics

Upper VoltaVenezuelaYugoslaviaZambia

3. The following 36 Governments have agreed to accept the validityof the travel and identity documents issued by the Council, subject tothe normal visa requirements of their Governments, provided thatthey accord the bearer the right of return to another country:Afghanistan LuxembourgBelgium MadagascarCanada NauruColombia NetherlandsCuba NorwayCyprus RwandaCzechoslovakia Sierra LeoneDemocratic Yemen SingaporeDenmark SomaliaEgypt SwedenFinland SwitzerlandGermany, Federal Republic of ThailandIceland Trinidad and TobagoIreland TurkeyIsrael United Kingdom ofItaly Great Britain andJamaica Northern IrelandJapan United States of AmericaLebanon Zaire

4. In addition, the Governments of Ethiopia, Kenya, Nigeria,Uganda, the United Republic of Tanzania, Zaire and Zambia haveconcluded formal agreements with the Council granting the right ofreturn to those countries of specific categories of Namibians.

Annex II

Text of the Agreements between the United Nations (United NationsCouncil for Namibia) and Governments concerning the issuance bythe Council of travel and identity documents to Namibians

A. AGREEMENT BETWEEN THE UNITED NATIONS COUNCIL FOR NAMIBIAAND THE GOVERNMENT OF THE REPUBLIC OF ZAMBIA CONCERNINGTHE ISSUANCE BY THE COUNCIL OF TRAVEL AND IDENTITYDOCUMENTS TO NAMIBIANS"

Points of agreement:1. The Government of the Republic of Zambia recognizes and ac-

cepts as valid the travel and identity documents issued to Namibiansby the United Nations Council for Namibia and intends to so advisethe Secretary-General of the United Nations, pursuant to his noteverbale of 12 December 1968.

2. In the exercise of its sovereign rights, the Government of theRepublic of Zambia agrees to grant the right of return to the followingcategories of Namibians who receive the travel and identity documentsof the Council:

(a) Namibians residing in Zambia;(b) Namibians enjoying first asylum in Zambia;(c) Such other Namibians as the Government may determine.3. The right of return will be inscribed and certified by the Govern-

ment of the Republic of Zambia in the travel and identity documentsissued by the United Nations Council for Namibia for the period of upto two years following the date of issue of the documents and thisperiod may be extended.

8 Based on Official Records of the General Assembly, Twenty-eighthSession, Supplement No. 24 (A/9024), annex III.

b This total includes the implied reply contained in the agreementconcluded between the Council for Namibia and the United Republicof Tanzania.

" Effected by an exchange of letters dated 10 July 1970 between theMinister of State for Home Affairs of Zambia and the Acting UnitedNations Commissioner for Namibia.

The text reproduced above was originally issued as annex I to docu-ment A/AC.131/20/Add.l.


4. Applications for travel and identity documents shall be sub-mitted to the Government of the Republic of Zambia which shallexamine such applications. A representative of the United NationsCouncil for Namibia shall be consulted, in accordance with the pro-visions of paragraph 5 below, and a representative of the Organizationof African Unity may be consulted as appropriate. Representativesof the people of Namibia shall be requested to provide relevant infor-mation as required. In the event of the Government of the Republicof Zambia informing the United Nations Council for Namibia that itagrees to grant the right of return, the documents shall be issued by theCouncil. It is understood that, as a rule, the right of return shall begranted to individuals falling within the categories mentioned in para-graph 2(a) to (c) above, unless compelling reasons of national securityor public order otherwise require.

5. In its examination of applications for travel and identity docu-ments, the Government of Zambia shall consult the United NationsCouncil for Namibia in every case, except when:

(a) The Government decides not to grant the right of return ongrounds of national security or public order. Any determinationmade by the Government on such grounds shall be final;

(b) Circumstances are such that the application requires immediateconsideration, not permitting time for consultation, and the Govern-ment is satisfied, on the basis of the information available to it, withthe bona fides of the applicant and is prepared to grant the right ofreturn.

6. The provisions of paragraphs 4 and 5 shall not preclude theUnited Nations Council for Namibia from issuing travel documents,in cases where the right of return is not granted by the Government ofthe Republic of Zambia, provided that the Council secures for theapplicant the right of return to a country other than Zambia or finds acountry which would accept him without a return clause.

7. The present arrangements which are made in the interest ofNamibians are subject to review on the request of the Government ofthe Republic of Zambia or of the United Nations Council forNamibia after a period of two years from the date of the present ex-change of letters, or as may be decided by the parties, and may beamended by agreement between the parties.

Mutual undertakings:

8. The Government of the Republic of Zambia, recognizing:(a) The international status of Namibia;(b) The importance and necessity for Namibians to verify their

identity and to be able to travel while abroad; and(c) The special responsibilities of the Council for Namibia in matters

within its competence;undertakes to extend its full co-operation with regard to the arrange-ments herein described.

9. The Council for Namibia, recognizing that the Government ofthe Republic of Zambia should not be required, because of thecountry's geographical location, to bear to a disproportionate degreethe problems arising from the entry of Namibians into Zambia, under-takes to make every effort to ensure that other Member States of theUnited Nations share in the granting of asylum and right of residenceto Namibians.

10. Furthermore, the Council for Namibia, recognizing that moreimportant than the question of travel documents is the problem of thefuture welfare of Namibians who sought asylum in other countries,undertakes to give this problem serious attention.

B. AGREEMENT BETWEEN THE UNITED NATIONS COUNCIL FORNAMIBIA AND THE GOVERNMENT OF THE REPUBLIC OF UGANDACONCERNING THE ISSUANCE BY THE COUNCIL OF TRAVEL ANDIDENTITY DOCUMENTS TO NAMIBIANSB

Points of agreement:1. The Government of the Republic of Uganda recognizes and

accepts as valid the travel and identity documents issued to Namibians

b Effected by an exchange of letters dated 17 July 1970 between theDeputy Minister for Foreign Affairs of Uganda and the Acting UnitedNations Commissioner for Namibia (see A/AC.131/20, para. 31),

The text reproduced above was originally issued as annex II todocument A/AC.131/20/Add.l.

by the United Nations Council for Namibia and intends to so advisethe Secretary-General of the United Nations.

2. In the exercise of its sovereign rights, the Government of theRepublic of Uganda agrees to grant the right of return to the followingcategories of Namibians who receive the travel and identity docu-ments of the Council:

(a) Namibians residing in Uganda;(b) Namibians enjoying first asylum in Uganda;(c) Such other Namibians as the Government may determine.

3. The right of return will be inscribed and certified by the Govern-ment of the Republic of Uganda in the travel and identity documentsissued by the United Nations Council for Namibia for the period of upto two years following the date of issue of the documents and thisperiod may be extended.

4. Applications for travel and identity documents issued by or onbehalf of the Council for Namibia shall be submitted to the Govern-ment of the Republic of Uganda which shall examine such applications.A representative of the United Nations Council for Namibia shall beconsulted, in accordance with the provisions of paragraph 5 below, anda representative of the Organization of African Unity may be con-sulted as appropriate. Representatives of the people of Namibia shallbe requested to provide relevant information as required. In the eventof the Government of the Republic of Uganda informing the UnitedNations Council for Namibia that it agrees to grant the right of return,the documents shall be issued by the Council. It is understood that, as arule, the right of return shall be granted to individuals falling withinthe categories mentioned in paragraph 2 (a) to (c) above, unless com-pelling reasons of national security or public order otherwise require.

5. In its examination of applications for travel and identitydocuments referred to in paragraph 4 above, the Government of theRepublic of Uganda shall consult the United Nations Council forNamibia in every case, except when:

(a) The Government decides not to grant the right of return ongrounds of national security or public order. Any determination madeby the Government on such grounds shall be final;

(b) Circumstances are such that the application requires immediateconsideration, not permitting time for consultation, and the Govern-ment is satisfied, on the basis of the information available to it, withthe bona fides of the applicant and is prepared to grant the right ofreturn.

6. The provisions of paragraphs 4 and 5 shall not preclude theUnited Nations Council for Namibia from issuing travel documents incases where the right of return is not granted by the Government of theRepublic of Uganda, provided that the Council secures for the appli-cant the right of return to a country other than Uganda or finds acountry which would accept him without a return clause.

7. The present arrangements which are made in the interest ofNamibians are subject to review on the request of the Government ofthe Republic of Uganda or of the United Nations Council for Namibiaafter a period of two years from the date of the present exchange ofletters, or as may be decided by the parties, and may be amended byagreement between the parties.


8. The Government of the Republic of Uganda, recognizing:(a) The international status of Namibia;(b) The importance and necessity for Namibians to verify their iden-

tity and to be able to travel while abroad; and(c) The special responsibilities of the Council for Namibia in matters


9. The Council for Namibia, recognizing that the Government ofthe Republic of Uganda should not be required, because of thecountry's geographical location which has already led to an influx ofrefugees from neighbouring States, to bear a disproportionate degreeof the problems arising from the entry of refugees, undertakes to makeevery effort to ensure that other Member States of the United Nationsshare in the granting of asylum and right of residence to Namibians.



C. AGREEMENT BETWEEN THE UNITED NATIONS COUNCIL FOR NAMIBIAAND THE IMPERIAL GOVERNMENT OF ETHIOPIA CONCERNING THEISSUANCE BY THE COUNCIL OF TRAVEL AND IDENTITY DOCUMENTSTO NAMIBIANS6

Letter dated 24 July 1970 from the Acting United Nations Commissionerfor Namibia addressed to the Minister for Foreign Affairs of theImperial Government of Ethiopia

At the request of the United Nations Council for Namibia, I havethe honour to refer to the following points of agreement and mutualundertakings which have resulted from meetings held in Addis Ababaon 22 and 24 July 1970, between a delegation of the Council and repre-sentatives of the Imperial Government of Ethiopia.

Points of agreement:

1. The Imperial Government of Ethiopia recognizes and accepts asvalid the travel and identity documents issued to Namibians by theUnited Nations Council for Namibia and has so advised theSecretary-General of the United Nations, pursuant to his note verbaleof 12 December 1968.

2. In the exercise of its sovereign rights, the Imperial Governmentof Ethiopia agrees to grant the right of return to the following cate-gories of Namibians who receive the travel and identity documentsof the Council:

(a) Namibians residing in Ethiopia:(b) Namibians enjoying first asylum in Ethiopia;(c) Such other Namibians as the Imperial Government may deter-

mine.

3. The right of return will be inscribed and certified by the ImperialGovernment of Ethiopia in the travel and identity documents issuedby the United Nations Council for Namibia for a period of up to twoyears following the date of issue of the document and this period maybe extended.

4. Applications for travel and identity documents shall be submittedto the Imperial Government of Ethiopia which shall examine suchapplications. A representative of the United Nations Council forNamibia shall be consulted, in accordance with the provisions of para-graph 5 below, and a representative of the Organization of AfricanUnity may be consulted as appropriate. Representatives of the peopleof Namibia shall be requested to provide relevant information asrequired. In the event of the Imperial Government of Ethiopia inform-ing the United Nations Council for Namibia that it agrees to grant theright of return, the documents shall be issued by the Council. It isunderstood that, as a rule, the right of return shall be granted toindividuals falling within the categories mentioned in paragraph 2(a)to (c) above, unless compelling reasons of national security or publicorder otherwise require.

5. In its examination of applications for travel and identity docu-ments, the Imperial Government of Ethiopia shall consult the UnitedNations Council for Namibia in every case, except when:

(a) The Imperial Government decides not to grant the right of returnon grounds of national security or public order. Any determinationmade by the Imperial Government on such grounds shall be final.

(b) Circumstances are such that the application requires immediateconsideration, not permitting time for consultation, and the ImperialGovernment is satisfied, on the basis of the information available to it,with the bona fides of the applicant and is prepared to grant the rightof return.

6. The provisions of paragraphs 4 and 5 shall not preclude theUnited Nations Council for Namibia from issuing travel documents,in cases where the right of return is not granted by the Imperial Govern-ment of Ethiopia, provided that the Council secures for the applicant

the right of return to a country other than Ethiopia or finds a countrywhich would accept him without a return clause.

7. The present arrangements which are made in the interest ofNamibians are subject to review on the request of the Imperial Govern-ment of Ethiopia or of the United Nations Council for Namibia aftera period of two years from the date of the present exchange of letters,or as may be decided by the parties, and may be amended by agreementbetween the parties.

Mutual underakings:

8. The Imperial Government of Ethiopia, recognizing:(a) The international status of Namibia;(b) The importance and necessity for Namibians to verify their



9. The Council for Namibia, recognizing that the Imperial Govern-ment of Ethiopia should not be required, because of the country'sgeographical location, to bear to a disproportionate degree the prob-lem arising from the entry of Namibians into Ethiopia, undertakes tomake every effort to ensure that other Member States of the UnitedNations share in the granting of asylum and right of residence toNamibians.


I would be most grateful for your confirmation that the ImperialGovernment of Ethiopia is in full agreement with the points listedabove. In such case, I have the honour to propose that this note andyour reply shall constitute an agreement between the United NationsCouncil for Namibia and the Imperial Government of Ethiopia on thismatter.Cable dated 29 March 1971 from the Minister of State, Ministry of

Foreign Affairs of the Imperial Government of Ethiopia addressedto the Acting United Nations Commissioner for NamibiaI refer to your letter of 24 July 1970.1 have the honour to confirm the

agreement of the Imperial Ethiopian Government to the points men-tioned in this letter.

D. AGREEMENT BETWEEN THE UNITED NATIONS COUNCIL FORN A M I B I A A N D THE GOVERNMENT OF THE R E P U B L I C OF K E N Y A

CONCERNING THE ISSUANCE BY THE COUNCIL OF TRAVEL ANDIDENTITY DOCUMENTS TO NAMIBIANS4

Letter dated 20 May 1971 from the Minister for Foreign Affairs ofKenya addressed to the Acting Commissioner for Namibia

I have the honour to acknowledge receipt of your letter dated 21July 1970 in connexion with the proposed agreement on travel andidentity documents for Namibians. The contents of the letter were asfollows:

"At the request of the United Nations Council for Namibia, Ihave the honour to refer to the following points of agreement andmutual undertakings which have resulted from meetings held inNairobi on 21 July 1970, between a delegation of the Council andrepresentatives of the Government of the Republic of Kenya.

"Points of agreement

" 1 . The Government of the Republic of Kenya recognizes andaccepts as valid the travel and identity documents issued toNamibians by the United Nations Council for Namibia and intendsto so advise the Secretary-General of the United Nations, pursuantto his note verbale of 12 December 1968.

"2. In the exercise of its sovereign rights, the Government of theRepublic of Kenya agrees to grant the right of return to the following

c Text originally circulated as document A/AC. 131/24. 1 Text originally circulated as document A/AC.131/25.


categories of Namibians who receive the travel and identity docu-ments of the Council:

"(a) Namibians legally residing in Kenya;"(b) Namibians enjoying first asylum in Kenya;"(c) Such other Namibians as the Government may determine.

"3. The right of return will be inscribed and certified by theGovernment of the Republic of Kenya in the travel and identitydocuments issued by the United Nations Council for Namibianormally for a period of six months and for longer periods in specialcases. These periods may be extended by the Government of theRepublic of Kenya.

"4. Applications for travel and identity documents shall be sub-mitted to the Government of the Republic of Kenya which shallexamine such applications. A representative of the United NationsCouncil for Namibia shall be consulted in accordance with the pro-visions of paragraph 5 below, and a representative of the Organiza-tion of African Unity may be consulted as appropriate. Representa-tives of the people of Namibia shall be requested to provide relevantinformation as required. In the event of the Government of theRepublic of Kenya informing the United Nations Council forNamibia that it agrees to grant the right of return, the documentsshall be issued by the Council. It is understood that, as a rule, theright of return shall be granted to individuals falling within thecategories mentioned in paragraph 2(a) to (c) above, unless com-pelling reasons of national security or public order otherwise require.

"5. In its examination of applications for travel and identitydocuments, the Government of Kenya shall consult the UnitedNations Council for Namibia in every case, except when:

"(a) The Government decides not to grant the right of return ongrounds of national security or public order. Any determinationmade by the Government on such grounds shall be final;

"(b) Circumstances are such that the application requiresimmediate consideration not permitting time for consultation, andthe Government is satisfied, on the basis of the information avail-able to it, with the bona fides of the applicant and is prepared togrant the right of return.

"6. The provisions of paragraphs 4 and 5 shall not preclude theUnited Nations Council for Namibia from issuing travel documents,in cases where the right of return is not granted by the Governmentof the Republic of Kenya, provided that the Council secures for theapplicant the right of return to a country other than Kenya or findsa country which would accept him without a return clause.

"7. The present arrangements which are made in the interest ofNamibians are subject to review on the request of the Governmentof the Republic of Kenya or of the United Nations Council forNamibia after a period of two years from the date of the presentexchange of letters, or as may be decided by the parties, and may beamended by agreement between the parties.

"Mutual undertakings:

"8. The Government of the Republic of Kenya, recognizing:"(a) The international status of Namibia,"(b) The importance and necessity for Namibians to verify their

identity and to be able to travel while abroad, and"(c) The special responsibilities of the Council for Namibia in

matters within its competence,undertakes to extend its full co-operation with regard to thearrangements therein described.

"9. The Council for Namibia, recognizing that the Governmentof the Republic of Kenya should not be required, because of thecountry's geographical location, to bear to a disproportionatedegree the problems arising from the entry of Namibians intoKenya, undertakes to make every effort to ensure that otherMember States of the United Nations share in the granting of asylumand right of residence to Namibians.

"10. Furthermore, the Council for Namibia, recognizing thatmore important than the question of travel documents is theproblem of the future welfare of Namibians who sought asylum inother countries, undertakes to give this problem serious attention.

"I would be most grateful for your confirmation that the Govern-ment of the Republic of Kenya is in full agreement with the pointslisted above. In such case, I have the honour to propose that this noteand your reply shall constitute an Agreement between the UnitedNations Council for Namibia and the Government of the Republicof Kenya on this matter."On behalf of the Republic of Kenya I have the honour to confirm

that the Government of the Republic of Kenya is in full agreementwith the points listed above and this note in reply to your earlier notewill constitute an agreement between the United Nations Council forNamibia and the Republic of Kenya on this matter.

E. AGREEMENT BETWEEN THE FEDERAL REPUBLIC OF NIGERIA ANDTHE UNITED NATIONS COUNCIL FOR NAMIBIA ON THE RIGHT OFRETURN TO NIGERIA OF CERTAIN NAMIBIANSE

The Government of the Federal Republic of Nigeria (hereinafterreferred to as "the Government of Nigeria") and the United NationsCouncil for Namibia (hereinafter referred to as "the Council"),

Recognizing the international status of Namibia and the importanceand necessity for Namibians to verify their identity and to be able totravel about while abroad,

Agree as follows:

Article 1The Government of Nigeria recognizes and accepts as valid the

travel and identity documents issued to Namibians by the Council.

Article 2Subject to other provisions of this Agreement, the Government of

Nigeria agrees to grant the right of return to the following categoriesof Namibians who are in possession of the travel and identity docu-ments issued by the Council:

(a) Namibians residing in Nigeria prior to the conclusion of thisAgreement;

(b) Namibians enjoying asylum in Nigeria; and(c) Such other Namibians as the Government of Nigeria may

determine.

Article 31. For the purpose of this Agreement a right of return to Nigeria

shall mean a right to be admitted into Nigeria granted to a Namibian.2. The right of return shall be inscribed and certified by the

Government of Nigeria in the travel and identity documents issuedby the Council and the right shall be valid for a period of two yearsfrom the date of issue of the right of return and this period may beextended by the Government of Nigeria.

Article 41. Applications for a right of return to Nigeria by Namibians shall

be made on prescribed forms agreed to by the Government of Nigeriaand the Council and shall be submitted through the Council. TheCouncil shall transmit them to the Government of Nigeria after dueconsultations with the Organization of African Unity whereappropriate.

2. The Government of Nigeria on receiving an application for a grantof a right of return to Nigeria may decide to:

(a) Approve the application with or without prescribing conditionsfor the approval; or

(b) Ask for more information about the applicant and on receivingsuch information may decide to reject the application without givingany reasons for doing so; or

(c) Reject the application without giving any reasons for doing so.3. The decision of the Government of Nigeria on every application

received shall be conveyed to the Council and where an application is

e Agreement concluded at United Nations Headquarters on 20April 1972. Although the previous four agreements were in the formof an exchange of letters, negotiations with the Nigerian Governmentwere conducted, at the latter's request, on the basis of a draft agree-ment (Official Records of the General Assembly, Twenty-sixth Session,Supplement No. 24 (A/8424), para. 32).

The text reproduced above was originally circulated as documentA/AC.131/26.

Question of treaties concluded between States and International organizations 31

approved the Council shall forward the travel and identity documentsof the successful applicant to the Government of Nigeria who shallinscribe and certify the right to return to Nigeria on the travel andidentity documents and return them to the applicant through theCouncil.

Article 5The Council undertakes to make every effort to ensure that other

Member States of the United Nations share in the granting of the rightof return to Namibians and that all possible assistance is rendered tosuch Namibians through the United Nations system.

Article 6Namibians admitted into Nigeria under this Agreement shall be

subjected to the laws and regulations of Nigeria.

Article 71. This Agreement shall enter into force two months after the

authorized representatives of the contracting parties have signed thisAgreement and may be terminated by either party giving twelvemonths, notice in writing to the other party.

DONE at United Nations Headquarters this 20 April 1972 in twooriginal copies both in English language, both copies being authentic.

For the Government of theFederal Republic of Nigeria:

{Signed) E. O. OGBU

Acting Commissioner for NamibiaFor the United Nations Council

for Namibia:{Signed) A. A. HAMID

F. AGREEMENT BETWEEN THE UNITED REPUBLIC OF TANZANIA ANDTHE UNITED NATIONS COUNCIL FOR NAMIBIA CONCERNING THEISSUANCE BY THE COUNCIL OF TRAVEL AND IDENTITY DOCUMENTS TONAMBIANS/

Points of agreement1. The Government of the United Republic of Tanzania recognizes

and accepts as valid the travel and identity documents issued toNamibians by the United Nations Council for Namibia and intendsto so advise the Secretary-General of the United Nations.

2. In the exercise of its sovereign rights, the Government of theUnited Republic of Tanzania agrees to grant the right of return to thefollowing categories of Namibians who receive the travel and identitydocuments of the Council:

(a) Namibians residing in the United Republic of Tanzania;{b) Namibians enjoying first asylum in the United Republic of

Tanzania;(c) Such other Namibians as the Government may determine.

3. The right of return will be inscribed and certified by the Govern-ment of the United Republic of Tanzania in the travel and identitydocuments issued by the United Nations Council for Namibia for theperiod of up to two years following the date of issue of the documents,and this period may be extended.

4. Applications for travel and identity documents shall be sub-mitted to the Government of the United Republic of Tanzania whichshall examine such applications. A representative of the UnitedNations Council for Namibia shall be consulted, in accordance withthe provisions of paragraph 5 below, and a representative of theOrganization of African Unity may be consulted as appropriate.Representatives of the people of Namibia shall be requested to pro-vide relevant information as required. In the event of the Governmentof the United Republic of Tanzania informing the United NationsCouncil for Namibia that it agrees to grant the right of return, the docu-ments shall be issued by the Council. It is understood that, as a rule,the right of return shall be granted to individuals falling within thecategories mentioned in paragraph 2{a) to (c) above, unless compellingreasons of national security or public order otherwise require.

5. In its examination of applications for travel and identity docu-ments, the Government of the United Republic of Tanzania shall

consult the United Nations Council for Namibia in every case, exceptwhen:

{a) The Government decides not to grant the right of return ongrounds of national security or public order. Any determination madeby the Government on such grounds shall be final.

{b) Cirumstances are such that the application requires immediateconsideration, not permitting time for consultation, and the Govern-ment is satisfied, on the basis of the information available to it, withthe bona fides of the applicant and is prepared to grant the right ofreturn.

6. The provisions of paragraphs 4 and 5 above shall not preclude theUnited Nations Council for Namibia from issuing travel documents,in cases where the right of return is not granted by the Government ofthe United Republic of Tanzania, provided that the Council securesfor the applicant the right of return to a country other than theUnited Republic of Tanzania or finds a country which would accepthim without a return clause.

7. The present arrangements, which are made in the interest ofNamibians, are subject to review on the request of the Government ofthe United Republic of Tanzania or of the United Nations Council forNamibia after a period of two years from the date of the present cominginto force of the arrangement, or as may be decided by the parties, andmay be amended by agreement between the parties.

Mutual undertakings

8. The Government of the United Republic of Tanzania, recogniz-ing:

{a) The international status of Namibia;{b) The importance and necessity for Namibians to verify their



9. The Council for Namibia, recognizing that the Government ofthe United Republic of Tanzania should not be required, because of thecountry's geographical location, to bear to a disproportionate degreethe problems arising from the entry of Namibians into the UnitedRepublic of Tanzania, undertakes to make every effort to ensure thatother Member States of the United Nations share in the granting ofasylum and right of residence to Namibians.


SIGNED in Dar es Salaam on the 5th day of December 1972.

For and on behalf of theUnited Republic of Tanzania:

{Signed) J. S. MALECELA

For and on behalf of theUnited Nations Council for Namibia:

{Signed) H. OMAYAD

f Agreement signed at Dar es Salaam on 5 December 1972. The textreproduced above was originally circulated as document A/AC. 131/29and Corr.l.

Letter dated 11 December 1972 from the Permanent Representative ofthe United Republic of Tanzania to the United Nations addressed tothe Acting United Nations Commissioner for Namibia

I have the honour to refer to the Agreement on the issuance of traveland identity documents to Namibians signed between my Governmentand the Council for Namibia on 5 December 1972.

On instructions from my Government, I wish to propose that theeffective date for the above-named Agreement should be 5 December1972. If this is agreeable, I wish to propose further that this letter andyour reply should constitute an agreement.

{Signed) Salim Ahmed SALIMAmbassador Extraordinary ami Plenipotentiary

Permanent Representative to the United Nations

Letter dated 11 December 1972 from the Acting United Nations Com-missioner for Namibia addressed to the Permanent Representativeof the United Republic of Tanzania to the United Nations

I have the honour to acknowledge receipt of your letter of 11December 1972, in which you proposed that the effective date for

32 Yearbook of the International Law Commission, 1974, vol. n, Part Two

the Agreement on the issuance of travel and identity documents forNamibians should be 5 December 1972, and in which you furtherproposed that your letter and my reply should constitute an agree-ment

I am most pleased to inform you that this procedure is fully accept-able to me and that we agree that the Agreement has come into forceon 5 December 1972, on the basis of our exchange of letters of whichthis letter constitutes the reply to your letter of 11 December 1972.

(Signed) Agha Abdul HAMIDActing United Nations Commissioner for Namibia

G. AGREEMENT BETWEEN THE REPUBLIC OF ZAIRE AND THE UNITEDNATIONS COUNCIL FOR NAMIBIA CONCERNING THE ISSUANCE BYTHE COUNCIL OF TRAVEL AND IDENTITY DOCUMENTS TO NAMIBIANS*

Points of agreement

1. The National Executive Council of the Republic of Zaire recog-nizes and accepts as valid the travel and identity documents issued toNamibians by the United Nations Council for Namibia and intendsso to advise the Secretary-General of the United Nations.

2. In the exercise of its sovereign rights, the National ExecutiveCouncil of the Republic of Zaire agrees to grant the right of return tothe following categories of Namibians who receive the travel andidentity documents of the Council:

(a) Namibians residing in the Republic of Zaire;(b) Namibians enjoying first asylum in the Republic of Zaire;(c) Such other Namibians as the National Executive Council may

determine.

3. The right of return will be inscribed and certified by the NationalExecutive Council of the Republic of Zaire in the travel and identitydocuments issued by the United Nations Council for Namibia for theperiod of up to two years following the date of issue of the documents,and this period may be extended.

4. Applications for travel and identity documents shall be sub-mitted to the National Executive Council of the Republic of Zairewhich shall examine such applications. A representative of the UnitedNations Council for Namibia shall be consulted, in accordance withthe provisions of paragraph 5 below, and a representative of theOrganization of African Unity may be consulted as appropriate.Representatives of the people of Namibia shall be requested to pro-vide relevant information as required. In the event of the NationalExecutive Council of the Republic of Zaire informing the UnitedNations Council for Namibia that it agrees to grant the right of return,the documents shall be issued by the Council. It is understood that,as a rule, the right of return shall be granted to individuals fallingwithin the categories mentioned in paragraph 2(a) to (c) above, unlesscompelling reasons of national security or public order otherwiserequire.

5. In its examination of applications for travel and identity docu-ments, the National Executive Council of the Republic of Zaire shall

* Signed at Kinshasa on 16 June 1973. The text reproduced abovewas originally circulated as document A/AC. 131/32.

consult the United Nations Council for Namibia in every case, exceptwhen:

(a) The National Executive Council decides not to grant the right ofreturn on grounds of national security or public order. Any determina-tion made by the National Executive Council on such grounds shallbe final.

(b) Circumstances are such that the application requires immediateconsideration, not permitting time for consultation, and the NationalExecutive Council is satisfied on the basis of the information availableto it, with the bona fides of the applicant and is prepared to grant theright of return.

6. The provisions of paragraphs 4 and 5 above shall not precludethe United Nations Council for Namibia from issuing travel docu-ments, in cases where the right of return is not granted by theNational Executive Council of the Republic of Zaire, provided thatthe Council secures for the applicant the right of return to a countryother than the Republic of Zaire or finds a country which wouldaccept him without a return clause.

7. The present arrangements, which are made in the interest ofNamibians, are subject to review on the request of the NationalExecutive Council of the Republic of Zaire or of the United NationsCouncil for Namibia after a period of two years from the date of thecoming into force of the present arrangement, or as may be decidedby the parties, and may be amended by agreement between theparties.


8. The National Executive Council of the Republic of Zaire, recog-nizing:

(a) The international status of Namibia;(b) The importance and necessity for Namibians to verify their



9. The Council for Namibia, recognizing that the National Execu-tive Council of the Republic of Zaire should not be required, because ofthe country's geographical location, to bear to a disproportionatedegree the problems arising from the entry of Namibians into theRepublic of Zaire, undertakes to make every effort to ensure that otherMember States of the United Nations share in the granting of asylumand right of residence to Namibians.

SIGNED at Kinshasa on the 16th day of June 1973.

For and on behalf of the For and on behalf of the UnitedRepublic of Zaire: Nations Council for Namibia:

(Signed) NGUZA KARL-I-BOND (Signed) P. LUSAKAPolitical Commissioner and Commissioner President of the Unitedof State for Foreign Affairs Nations Council for Namibiaand International Co-operation

(Signed) A. HAMIDUnited Nations Commissioner for Namibia