certainly not be possible to make the assumptions in effect contended for by the Applicants as to what those intentions were. 1 24 118. Id. Compare notes 82-83 supra and accompanying text. 119. Id. at 46-47. 120. Id. at 47. 121. Id. 122. Id. at 47. 123. Id. at 47. The Court further stated: It is always open to parties to a dispute, if they wish the Court to give a decision on a basis of ex aequo et bono, and are so agreed, to invoke the power which, in those circumstances, paragraph 2 of this same Article 38 confers on the Court to give a decision on that basis, notwithstanding the provisions of paragraph 1. Failing that, the duty of the Court is plain. Id. at 48. 124. Id. at 48-49.
THE SOUTH WEST AFRICA CASES IV. THE MERITS OF THE CASE The Applicants alleged in their Memorial a cause of action based on a "norm of non-discrimination or non-separation" and on certain undefined "standards."'1 2 It became clear that the Applicants' whole case with respect to the alleged contraventions of the Mandate was based on the existence of either a "norm" or "standards" when the Applicants' agent said: "The issue before the Court, accordingly, is whether the processes of the organized international community have or have not eventuated in international standards or an international legal norm, or both." 2 ' Applicants contended that the alleged "standards" were binding on re- spondent by reason of an implied agreement in the Mandate itself, under which the Mandatory was bound to submit to guidelines laid down by the supervisory authority. 127 Applicants' "norm" contention indicated that Respondent was obliged under the Mandate to govern in accordance with international law. Consequently any legal norm binding upon Respondent as the administrating authority in respect of South West Africa would be enforceable under Article 7(2) of the Mandate. 12 The only difference between the two concepts was that the "standards" were argued to be ap- plicable only to South Africa as a Mandatory, whereas the "norm" was said to be binding on all states, including Respondent in its capacity as a sov- ereign state.' Even though a majority of the Court dismissed the case without resolving these two allegations, both concurring and dissenting opinions, in dicta, did discuss these issues. 125. S.W.A. CASES II 15. Applicants' Submission No. 4 reads as follows: Respondent, by virtue of economic, political, social, and educational policies applied within the Territory, by means of laws and regulations, and official methods and measures, which are set out in the pleadings herein, has, in the light of applicable international standards or international legal norm, or both, failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory; that its failure to do so is in violation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant; and that Respondent has the duty forthwith to cease its violations as aforesaid and to take all practicable action to fulfil its duties