1 The Court felt the argument was obviously misconceived because the man 110 Id

1 the court felt the argument was obviously

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1 " The Court felt the argument was obviously misconceived because the man- 110. Id. at 37. 111. Id. The Court pointed out that a judgment on a preliminary objection might touch on a point of merits, but this it could do only in a provisional way, to the extent necessary for deciding the question raised by the preliminary objection. 112. Id. at 38. 113. Id. 114. Id. at 39. The Court also compared the rights of members of the League Council under the jurisdictional clauses of the Minorities Treaties signed after the First World War, with their rights under the jurisdictional clauses of the mandate instruments. In the case of the mandates, the jurisdictional clause was intended to give the individual members of the League the means of protecting their "special interests" relative to the mandated territories; in the case of the Minorities Treaties, the right of action of the members of the Council under the jurisdictional clauses were intended for the protection of minority populations. Id. at 40, 41. 115. Id. at 41, 42. These contentions dealt with the legislative history of the man- dates. 116. Id. at 44. 117. Id. at 46. Washington University Open Scholarship
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WASHINGTON UNIVERSITY LAW QUARTERLY date system was expressly designed to exclude the kind of enforcement which, according to the "necessity" argument, was essential. 18 It was never intended that the mandatories should be answerable to individual League members; otherwise, any individual member could independently invoke the jurisdiction of the Court by alleging misconduct, even if the Council of the League was perfectly satisfied with the way in which a man- datory was carrying out its mandate. 19 Moreover, it was noted that the "necessity" argument amounts to a plea that the Court should recognize the equivalent of an actio popularis-the right of any member in a com- munity to take legal action in vindication of a public wrong. 12 Such a right, while known in certain municipal systems of law, has never existed in inter- national law, and the Court held that it was not implied in the "general principles of law" referred to in Article 38, paragraph 1 (c) of its Statute."' The Court finally determined the whole "necessity" argument to be based on considerations of an extra-legal nature, "the product of a process of afterthought." ' Such a theory was never officially advanced during the period of the League, but rather it was subsequent events alone, not any- thing inherent in the mandates system, that gave rise to the alleged "neces- sity." Further, the Court was of the opinion that this necessity, if it does exist, lies in the political field and does not constitute necessity in the eyes of the law. 2 ' Summary disposition was made of the last contention, that the Court is empowered to supply an omission resulting from the failure of the framers of the Mandate to foresee what was to occur. The Court merely said that it "cannot however presume what the wishes and intentions of those con- cemed would have been in anticipation of events that were neither foreseen nor foreseeable; and even if it could, it would
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