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.
Demonstrative of the process by which principles of private, municipal law can be brought into international law.