Furthermore the Court found that nothing had occurred after the dissolution of

Furthermore the court found that nothing had occurred

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Furthermore, the Court found that nothing had occurred after the dissolution of the League to vest in its members rights they did not pre- viously have."" With respect to the contention that the Applicants' legal right or interest had been settled by the 1962 judgment and could not be reopened, the Court pointed out that a decision on a preliminary objection could never be conclusive of an issue pertaining to the merits, whether or not it had in fact been dealt with in connection with preliminary objections." 0 ' By virtue of Article 62, paragraph 3, of the Court's rules, "when preliminary objec- 101. Id. at 34. Applicants contended that the "sacred trust" in Article 22 of the Covenant was a "sacred trust of civilization" and thus all nations had an interest in seeing that it was carried out. For the text of Article 22, see note 134 infra. 102. Id. at 35. 103. Article 2 of the Covenant provided that the "action of the League under this Covenant shall be effected through the instrumentality of an Assembly and of a Council, with a permanent Secretariat." COVENANT art. 2. 104. S.W.A. CASES II 23, 24. 105. Id. at 26. 106. Id. at 35. 107. Id. 108. Id. at 36. 109. Id.
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THE SOUTH WEST AFRICA CASES tions are entered by the defendant party in a case, the proceedings on the merits are . . . suspended."" ' Until the proceedings on the merits are resumed, there can be no decision finally determining or prejudging any issue on the merits. 11 ' Thus, the Court found 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 a legal basis for their claim on the merits." 12 Turning to the contention that the jurisdictional clause-Article 7(2)- of the Mandate conferred a substantive right to compel the Mandatory to carry out the "conduct" provisions, the Court observed that it would be remarkable if so important a right had been created so indirectly and in such a casual fashion." 1 3 The Court could not distinguish this particular jurisdictional clause from many others. It stated that it was an almost ele- mentary principle of procedural law that a distinction had to be made between the right to activate a court and examine the merits of a claim, and the plaintiff's legal right with respect to the subject matter of the claim, which would have to be established to the satisfaction of the Court. The Court, after dismissing tangential contentions of the Applicants, 5 directed itself to the final contention: the so-called argument of "neces- sity.2) ' l It was suggested that since the Council never had a means of im- posing its views on the Mandatory, and since no advisory opinion of the Court would be binding on the Mandatory, the Mandate could have been flouted at will. Hence, it was essential as an ultimate safeguard for the "sacred trust" that each member have a legal right to take direct action.
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