1966

ICJ

South West Africa Cases Ethiopia v SA Liberia v SA Second Phase

Before enter to the merits two questions: 1. whether the mandate still subsisted at all 2. applicant’s standing, i.e., their legal right or interest regarding the subject matter of their claims ‘Necessity’ argument. Since the LN had no means to impose its views on the mandatory, the mandate could have been flouted at will, so it was essential as an ultimate safeguard that each member should be deemed to have a legal right or interest in the matter to take direct action relative to it 7/6, by casting vote: Applicant states could not be considered to have established any legal right or interest in the subject matter of their claims. Resolution The principal elements of mandate consisted of articles defining the mandatory power and its obligations in respect of the inhabitants of the territory and towards the LN and organs (conduct provisions) (substantive) In addition there were articles conferring certain rights relative to the mandated territory directly upon the members of the LN as individual states, or in favour or its nationals (‘special interest’ provisions) In addition jurisdictional clause, providing reference to PCIJ The court distinguished between ‘conduct’ & ‘special interest’ provisions. The present dispute related exclusively o ‘conduct’ provisions. Question: whether any legal right or interest was vested in members of LN individually as regard ‘conduct’ clauses, or whether the mandatory had any direct obligation towards other members of LN individually, as regard the carrying out of ‘conduct’ provisions

The mandate was established ‘on behalf of the League’ (22.2), ‘securities for the performance’ (22.1) were an annual report to the council (22.7) revised by a commission (22.8) Individual states of the LN could take part in the administrative process through their participation in the activities of the organs by means of which the LN was entitled to function. They had no direct intervention relative to the mandatory, this was a prerogative of LN organs While the 1962 judgment decided that the applicants were entitled to invoke the jurisdictional clause of the mandate, it remained for them, on the merits, to establish that they had such a right or interest Any question on admissibility has to be decided on merits (Nottebohm case) There is no contradiction between a decision that the applicants had the capacity to invoke the jurisdictional clause and a decision that the applicants had not established the legal basis of their claim on the merits A distinction must be make between the right to activate the court and the plaintiff’s legal right in respect of the subject matter of its claim. Jurisdictional clauses were adjectival not substantive in their nature and effect, they did not determine whether the parties had substantive rights, but only whether, if they had them, they could vindicate them by recourse to a tribunal. The ‘necessity’ argument amounted to a plea that the court should allow the equivalent of an action popularis, or right resident in any member of a community to take legal action in vindication of a public interest. But IL does not know such a right as it stood at present. The duty of the court was to apply the law as it found it, not to make it.