1961, May 20; ICJ joined proceedings in the two cases
The case related to the continued existence of the Mandate for South West Africa and the duties and performance of South Africa as Mandatory.
South Africa raised preliminary objections to the ICJ jurisdiction
1. The mandate, including art 7 submission to the PCIJ, is no longer a treaty or convention in force within the meaning of art 37 (treaties under PCIJ/LN) of ICJ
Art 7 mandate “the mandatory agrees … any dispute whatever should arise between the mandatory and another member of the LN relating to the interpretation or application of the provisions of the mandate, such dispute … shall be submitted to PCIJ”
2. Since all members of LN lost their membership when it ceased to exist, there is no ‘another member of the LN’
3. The dispute brought before the court was not a dispute under art 7 Mandate.
4. If a dispute existed it was not one that could be settled by negotiation with the applicants and there had been no such negotiations with a view to its settlement
Existence of a dispute: it was not sufficient for one party to contentious case to assert that a dispute existed with the other party …Nor is it adequate to show that the interest of the two parties so such a case are in conflict. It must be shown that the claim of one party is positively opposed by the other. A dispute existed in the present case since it was clearly constituted by the opposing attitudes of the parties relating the performance of the obligations of the Mandate by the respondent as Mandatory.