SOUTH WEST AFRICA CASES

After WWII, the Union of South Africa, alleging that the Mandate it had been given by the League of
Nations to administer South West Africa had lapsed, sought the recognition of the United Nations to the
integration of the Territory in the Union. The UN General Assembly asked the Court to advise on the
international status of South West Africa (now Namibia). The Court was asked to determine the meaning
of the “sacred trust of civilization” accepted by South Africa under the Mandate.

What is the status of the relationship between South West Africa and South Africa?

South West Africa is a territory under the Mandate and South Africa is not competent to modify the
international status of South West Africa.

McNair, in a separate opinion, set out how the Court finds and applies general principles of law. Article
38(I)(c) allows the Court to apply “the general principles of law recognized by civilized nations.” This is
done by regarding any features or terminology which are reminiscent of the rules and institutions of
private law as an indication of policy and principles rather than as directly importing these rules and
institutions.

Applying this to the case at bar, the Court was tasked with interpreting "sacred trust of civilization”. The
historical basis of the legal enforcement of the English trust was that it was binding upon the conscience
of the trustee and thus should be enforceable in law. Nearly every legal system possesses some
institution whereby the property and sometimes the person of those who are not sui juris, such as a
minor or disabled person, can be entrusted to some responsible person as a trustee; the trust has been
used to protect the weak and the dependent.

There are three general principles which are common to all these institutions:

the control of the trustee over the property is limited in one way or another; he is not in the position of
the normal complete owner, who can do what he likes with his own, as he is precluded from
administering the property for his own personal benefit;

the trustee is under some kind of legal obligation, based on confidence and conscience, to carry out the
trust or mission confided to him for the benefit of some other person or for some public purposes; and

any attempt by one of these persons to absorb the property entrusted to him into his own patrimony
would be illegal and would be prevented by the law.

As a result, it would be in violation of the trust to absorb South West Africa into South Africa.