Permanent Court of International Justice (PCIJ)
- International courts and tribunals, procedure — Practice and procedure of international organizations
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
A. Historical Background and Establishment
1. 19th Century Arbitrations
1 One of the features of the conduct of international affairs that came into prominence during the 19th century was the increasing use of arbitration by third parties applying international law as a means of settling international disputes. The high point of this was the Alabama Arbitration of 1881–82. That case, parallel to the growing efficacy and expense of military technology and the pressure of military budgets on the national economy of many States, led to a trend of pacifism which saw in international arbitration by an acceptable third party or by a ‘neutral’ arbitral tribunal an alternative to war (then recognized as legitimate) as a method of resolving international disputes.
2. The Hague Peace Conferences of 1899 and 1907
2 This in turn led to the Hague Peace Conferences (1899 and 1907). Amongst other things, these conferences provided for the establishment of the Permanent Court of Arbitration (PCA) and the development of a code of arbitral procedure. The PCA is not a Court in the accepted sense of the word. It consists of a panel of members from which States can choose arbitrators, a registry (secretariat), and a code of arbitral procedure (all still in force). In addition, the Hague Peace Conference of 1907 produced the 1907 Hague Convention on the Creation of an International Prize Court (International Prize Court [IPC]; Prize Law), although this never entered into force, and adopted a resolution admitting the principle of obligatory arbitration. The conference also prepared a draft convention for the creation of a Court of Arbitral Justice. The conference left two items outstanding, namely, the method for selection of the judges of the proposed Court and the Court’s constitution. To resolve these questions, the conference envisaged a third conference to be convened around 1915, but World War I prevented that.
3 The Hague Peace Conference of 1907 was followed by the short-lived Central American Court of Justice (1907–18). Its experience was taken into consideration in the preparatory work of the PCIJ. It also inspired the Bryan Treaties (1913–14).
3. The Peace Conference of 1919 and the League of Nations; The Covenant and Statute
4 When the Covenant of the League of Nations (the Covenant is hereafter referred to as ‘League Covenant’ and the League of Nations as ‘League’) was being negotiated at the Paris Peace Conference of 1919, there were suggestions to include a Court amongst its organs. However, in the short time available, this idea could not be pursued. As an alternative, Art. 14 League Covenant required the Council to formulate plans for the establishment of a Permanent Court of International Justice and submit them to the members of the League for adoption. The Court would be competent to hear and determine any dispute of an international character which the parties thereto submitted to it. The Court could also give an advisory opinion upon any dispute or question referred to it by the Council or Assembly. The introduction of advisory opinions was a major innovation in international practice, and time was needed to gain experience.
5 The Council quickly got down to work. In February 1920, it established a committee of ten jurists to prepare plans for the PCIJ and report to the Council. This was known as the Advisory Committee of Jurists, several of whose members had taken part in the Hague Peace Conference of 1907. Under the chairmanship of Baron Descamps of Belgium, this committee was in session from 16 June to 24 July 1920. It completed its work in a comprehensive report submitted to the Council. In this report, on which the Advisory Committee of Jurists was unanimous, the committee developed a procedure for the election of the judges which was designed to ensure the representative character of the Court as a whole and at the same time, to protect the interests of the Great Powers, especially those with permanent membership in the Council. This was widely known as the Root-Phillimore Plan, named after the jurists from the United States (‘US’) and the United Kingdom who jointly conceived it. The committee also recommended that the Court would have compulsory contentious jurisdiction over legal disputes as it defined them.
6 The Council examined this proposal during the second half of 1920. It rejected any idea of compulsory jurisdiction over legal disputes and made some other amendments to the draft plan, which was then placed before the first Assembly in November 1920 in accordance with Art. 14 League Covenant.
7 The Assembly considered the matter from the middle of November to the middle of December 1920 under the chairmanship of Léon Bourgeois of France, who played a prominent part in the Hague Peace Conference of 1907. After a detailed examination in a subcommittee chaired by Francis Hagerup of Norway, also a delegate at the Hague Peace Conference of 1907, the Assembly adopted a resolution on 13 December 1920 in which it declared its approval of the PCIJ Statute as amended by the Assembly (International Organizations or Institutions, Secondary Law). The resolution called for the statute to be submitted in the shortest possible time to the members of the League for adoption in the form of a protocol duly ratified and declaring their recognition of this statute. On 16 December 1920, the Protocol of Signature of the PCIJ Statute was opened for signature and ratification. It entered into force on 1 September 1921. At the end of 1939, it was in force among 50 States. In 1921, preparations were in progress for the general election of the members of the Court once the statute had entered into force. This general election took place from 14–16 September.
8 As a result of the arrangements of 1920, the Protocol of Signature had no formal relationship to the League Covenant. The PCIJ was established as an independent international judicial organ formally separate from the League but available to the League for certain purposes (see International Organizations or Institutions, External Relations and Co-operation). Its seat, in The Hague, was apart from the seat of the League in Geneva (International Organizations or Institutions, Headquarters) and its staff, the registry, was separate from the staff of the League Secretariat (International Organizations or Institutions, Secretariats) even if it became assimilated to the latter staff for purposes of salary and general conditions of service. At the same time, there were four major points of contact between the Court and the League: a) the election of the members of the Court was to be conducted through the Council and the Assembly without any direct contact with the PCIJ, with the Secretary-General of the League having defined responsibilities in connection with these elections; b) the salaries of the members of the PCIJ and of the registrar were to be fixed by the Assembly and the Court’s expenses were to be born by the League (International Organizations or Institutions, Financing of); c) two organs of the League, the Assembly and the Council, were authorized to request advisory opinions; and d) the Secretary-General of the League was the depositary of the Protocol of Signature and many instruments related to the Court, and in addition to his duties in connection with the election of members of the Court, the Secretary-General had responsibilities in connection with the Court’s budget and certain aspects of the procedure in both contentious and advisory cases under the Rules of Court (‘PCIJ Rules’). These ties to the three principal organs of the League placed the Court in a somewhat anomalous position vis-à-vis the League. At the same time, Art. 1 PCIJ Statute made it clear that the PCA would continue to exist alongside the PCIJ, and ever since then, arbitration has remained a separate form of third-party pacific settlement of international disputes (Peaceful Settlement of International Disputes) distinct from judicial settlement of international disputes.
4. The Inauguration of the Court
9 The Court held a preliminary session in January 1922 and its formal inauguration took place in The Hague on 15 February 1922. The different proceedings that took place in 1920 and 1921 are still relevant for a full understanding of different provisions of the PCIJ Statute and PCIJ Rules, and the present International Court of Justice (ICJ) refers to them whenever necessary. The PCIJ received its first case, curiously, the request for an advisory opinion on the Designation of the Workers’ Delegate for the Netherlands at the Third Session of the International Labour Conference (Advisory Opinions of the Permanent Court of International Justice on Issues of the International Labour Organization). Although originating in the International Labour Organization (ILO), this request was channelled to the Court through the Council. This request compelled the Court before it had any experience to plunge straight into one of the major and controversial innovations of the League Covenant, the competence to give advisory opinions. This had not been examined in depth during the preparatory work of 1920, and at the time, the PCIJ had not developed any procedure for the conduct of advisory proceedings.
5. The United States of America and the Court and the Amendments to the Statute
10 The US was not a member of the League and was not a party to the Protocol of Signature of the PCIJ Statute. However, it made a contribution to the funds of the League and thus indirectly, to the funds of the Court. In March 1926, the US Senate adopted a resolution regarding the proposed accession of the US to the protocol. That resolution indicated the reservations and understandings to which that accession would be subject. Following communication to the League, the Council decided to convene a conference of plenipotentiaries with the object of framing a general agreement on the matter. This conference met in Geneva in September 1926. It did not make any reference to a possible amendment of the PCIJ Statute. Its conclusions did not satisfy the US, which did not resume negotiations until 1929. However, in 1928, following French initiative, the Assembly requested the Council to set in motion an examination of the PCIJ Statute with a view to the introduction of such amendments as may be judged advisable for discussion at the following Assembly. In December, the Council entrusted the examination of the statute to a committee of 12 jurists, of whom one came from Japan, one from the US, and all the remainder from Europe. The Court’s president and vice-president participated in the work of this committee without the right to vote. Later, the question of US accession to the Protocol of Signature was added to the committee’s terms of reference. The committee recommended a series of amendments to the statute, some of which were designed to facilitate the accession of the US to the statute. However, the final debate in the US Senate in 1935 led to a vote of 52 in favour of ratification and 26 against, short of the required two-thirds majority. The US was not involved in any case, contentious or advisory, before the PCIJ. There was always a member of the Court of American nationality.
11 Following the report of the jurists committee, the Council decided to convene a diplomatic conference of the States Parties to the PCIJ Statute to examine the proposed amendments. The conference adopted a series of amendments to the PCIJ Statute and reported them to the Assembly. On 14 September 1929 (shortly before the Wall Street Crash of October 1929), the Assembly adopted the Protocol for the Revision of the Statute of the Permanent Court of International Justice. The amendments entered into force on 1 February 1936. Two amendments were significant. The post of deputy-judge was abolished and the four deputy-judges at the time of entry into force of the amendments became regular members of the Court, the membership of which was fixed at 15. In addition, a set of provisions relating to advisory proceedings was inserted into the PCIJ Statute. These provisions were closely based on some of the PCIJ Rules which were introduced after 1926 in the light of the PCIJ’s evolving experience in advisory matters. One of the purposes of these amendments was to prevent the surreptitious introduction of a form of compulsory judicial settlement through the advisory procedure following the doctrine of the Status of the Eastern Carelia (Advisory Opinion) (‘Eastern Carelia’) (Eastern Carelia [Request for Advisory Opinion]). The inclusion of such a provision was one of the conditions set by the US Senate for the accession of the US to the Protocol of Signature. The PCIJ never had occasion to put these amendments to the test. The amended PCIJ Statute entered into force on 1 February 1936, too late to have had any direct impact on the functioning of the PCIJ. However, in May 1931, the PCIJ put in hand a major review and revision of the PCIJ Rules on the basis of the amendments. This led to the adoption on 11 March 1936 of a completely new set of rules, and these, in fact, governed the operation of the ICJ with some amendments in 1946 and 1972 until replaced by a further set of new rules in 1978.
6. The Soviet Union and the Court
12 The new Union of Soviet Socialist Republics (USSR), at the time largely ostracized by the outside world, was also not a party to the PCIJ Statute. It joined the League in 1934. Its attitude towards the Court was expressed by its Commissary (Minister) for Foreign Affairs Tchitcherin in a message to the Court of 11 June 1923 in connection with the advisory opinion on Eastern Carelia: the Soviet government ‘is compelled to affirm that it cannot consider the so-called League of Nations and the Permanent Court as impartial in this matter, having regard to the fact that the majority of the Powers belonging to the League of Nations have not yet accorded the Soviet Government de iure recognition, and several of them refuse even to enter into de facto relations with it’ (at 13–14). Apart from Eastern Carelia, in which the USSR declined to participate, the USSR was not involved in any case in the PCIJ, contentious or advisory, and there was never a judge of Soviet nationality among its members.
7. The Outbreak of the War (1939)
13 Upon the outbreak of World War II in September 1939, the Court at first attempted to continue to be operational. It held its last public sitting in December of that year, publishing its last order on 26 February 1940. Its president, Judge Guerrero of El Salvador, hoped to spare the judicial settlement of disputes from the arbitrament of war. However, it became impossible to maintain this approach. The president, registrar, and part of the archives were transferred to Geneva. Formally, the PCIJ remained in existence until it was dissolved in the concluding session of the Assembly on 18 April 1946. The statute of the new ICJ contains provisions for some of the jurisdiction of the PCIJ to become jurisdiction of the ICJ (see International Organizations or Institutions, Succession).
B. The Composition of the Court; the Bench in a Particular Case; Chambers
1. The Qualifications Required of Members of the Court
14 In its original form, the Court consisted of 11 judges and 4 deputy-judges (International Courts and Tribunals, Judges and Arbitrators). Following the amendment to the PCIJ Statute of 1931, as stated, the membership of the PCIJ was fixed at 15. This figure was based on the precedent of the proposed IPC, and was considered adequate to ensure proper representation in the Court of the different interests involved, including those of the Great Powers. The PCIJ Statute set out conditions required for membership in the Court and the procedures for the nomination and election of candidates. Art. 2 PCIJ Statute, a provision addressed to those nominating candidates for election to the Court, sets out the general requirement for membership in the Court: the Court ‘shall be composed of a body of independent judges, elected regardless of their nationality from amongst persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial office, or are jurisconsults of recognized competence in international law’. There has always been controversy whether the proper balance between the two sets of professional qualifications was reached.
15 In addition to the personal qualification required of members of the Court as set out in Art. 2 PCIJ Statute, Art. 9 PCIJ Statute provided that at every election, the electors should bear in mind that not only should all the persons appointed as members of the Court possess the qualifications required, but also that the whole body should represent the main forms of civilization and the principal legal systems of the world. This provision, addressed to the electors, opens the way to political competition and negotiations (Negotiation) among the different States and interests involved. This was prevalent in both general elections (1921 and 1930) of members of the PCIJ and in the occasional elections of that period to fill vacancies.
2. The Nomination of Candidates
16 For the nomination of candidates, the PCIJ Statute adopted a system of indirect nomination. Under Art. 4, the national groups of States that were parties to the PCIJ Statute and also parties to the 1907 Hague Convention on the Pacific Settlement of International Disputes (‘1907 Hague Convention I’) were to nominate candidates in accordance with the procedure laid down and within fixed time periods. Other States Parties to the PCIJ Statute should create a national group for the sole purpose of nominating candidates for election to the PCIJ. The national groups were recommended to consult their highest Court of justice, legal faculties and schools of law, national academies, and national sections of international academies devoted to the study of law (Arts 5, 6 PCIJ Statute).
3. The System of Election
17 As for the elections, under Art. 8 PCIJ Statute, the Assembly and Council were to proceed independently of one another (interpreted to mean simultaneously) to elect the members of the Court. Candidates who obtained an absolute majority of votes simultaneously in the Assembly and in the Council would be considered elected (Art. 10 PCIJ Statute). Special arrangements were included in Art. 12 PCIJ Statute to deal with a deadlock in the election process. Recourse to this process occurred once during the existence of the PCIJ at the first election of 1920 when there was a deadlock over the election of the fourth deputy-judge. Apart from that, there was never any need to have recourse to this special procedure. The term of office of a judge was nine years, and a judge could be re-elected. Vacancies were to be filled in the same manner, but a member of the Court elected to replace a member whose period of appointment had not expired would hold the appointment only for the remainder of his predecessor’s term (Art. 15 PCIJ Statute).
4. The Bench for a Particular Case
18 The foregoing deals with the total membership of the Court as a judicial organ. For the composition of the bench to hear a particular case, Art. 25 PCIJ Statute laid down the principle that, normally, the full Court should sit except where it is expressly provided otherwise. That provision went on to allow for one or more of the judges to be dispensed from sitting provided that the number of judges was not reduced to less than 11, and that 9 judges (or deputy-judges) would constitute a quorum. Other provisions, notably Arts 17 and 24 PCIJ Statute, provided for the ineligibility of a member of the Court to sit in a particular case and for a member of the Court to recuse himself (the final decision resting, if necessary, with the Court). Art. 31 PCIJ Statute provided that judges of the nationality of the parties should retain their right to sit in the case before the Court. This was balanced by other provisions in that article allowing for the appointment by a party to a case that did not have a member of the Court of its nationality of what was known as a judge ad hoc. A judge ad hoc took part in the case on a footing of equality with the members of the Court. This was a concession to diplomatic susceptibilities and reflected long-standing international arbitration practice. At the same time, the Court reserved the right not to accept a person chosen to sit as a judge ad hoc. The PCIJ exercised this right once in the Case concerning the Payment of Various Serbian Loans Issued in France (Brazilian Loans Case and Serbian Loans Case). The president of the Court was unable to exercise the functions of president of the bench if he was a national of one of the parties to the case. In that eventuality, the presidency of the bench devolved on the next senior member of the Court duly qualified to sit in the case, in the capacity of acting president.
5. Chambers of the Court
19 Arts 26, 27, and 29 PCIJ Statute provided for the constitution of chambers in place of the full Court (see International Courts and Tribunals, Chambers). Under Art. 26, labour cases and in particular those referred to in Arts 387–427 Treaty of Versailles (Versailles Peace Treaty ) and the corresponding provisions of the other peace treaties were to be heard by a special chamber if the parties should so demand. The judges were to be assisted by four technical assessors sitting with them but without the right to vote, ‘and chosen with a view to ensuring a just representation of the competing interests’ (an allusion to the tripartite organization of the ILO). The ILO and its director were given a limited procedural standing in such cases (see International Courts and Tribunals, Standing.) This provision of the PCIJ Statute was never invoked. Art. 27 concerned cases relating to transit and communications, particularly cases referred to in Arts 321–86 Treaty of Versailles and the corresponding provisions of the other Peace Treaties of 1919 relating to ports, waterways, and railways. Technical assessors were also required for a chamber appointed under this provision. Both of these special chambers could, with the consent of the parties, sit elsewhere than at The Hague (Art. 28 PCIJ Statute). Neither of these chambers was ever invoked.
20 With a view to the speedy despatch of business, Art. 29 PCIJ Statute required the Court to form annually a chamber for summary procedure. It was to hear and determine cases by summary procedure at the request of the contesting parties. This chamber, formed annually during the effective existence of the PCIJ, heard two related cases—the Treaty of Neuilly, Article 179, Annex, Paragraph 4 (Interpretation) (Bulgaria v Greece) case and Interpretation of Judgment No 3 (Greece v Bulgaria) (Neuilly Peace Treaty Cases; Neuilly Peace Treaty ). States have shown no inclination to have recourse to the Chamber for Summary Procedure, but it is probably useful to have it available should occasion arise. It is an open question whether a chamber can be requested to give an advisory opinion. This issue does not seem to have arisen during the period of the PCIJ. On the special position of the president of the Court, see International Court of Justice (ICJ).
6. The General Elections of 1921 and 1930
21 At the first general election of 1921, of the 11 judges elected, two were from Latin America, one from the US, one from Japan, and the remainder from Europe. Of the four deputy-judges elected then, one was from China and all the others from Europe. This geographical distribution was maintained in the occasional elections held between 1921–30. As a result of the general election of 1930, three judges came from Latin America, one each from the US, China, and Japan, and the remainder from Europe. Of the four deputy-judges elected in 1930 and converted into judges in 1936, all came from Europe. Also in that election, eight of the retiring judges were re-elected and the remaining seven were new members of the Court. In the whole period 1922–46, the two registrars (Åke Hammarskjöld of Sweden, 1922–36 and Julio López Oliván of Spain, 1936–46) were from Europe. It is widely accepted that in neither election was a proper balance reached between members of the Court with judicial experience and qualified for appointment to the highest judicial office in their own country and those who were ‘jurisconsults of recognized competence in international law’. In the 1930 election, a new professional class of person appeared, a lawyer-diplomat, that is, a professional diplomat who was at the same time a qualified international lawyer, notably an experienced legal adviser of his national ministry for foreign affairs. This class of person has become more prominent in the ICJ.
7. The Status of the Judges
22 Art. 19 PCIJ Statute provides that the members of the Court when engaged in the business of the Court should enjoy diplomatic privileges and immunities (see International Organizations or Institutions, Privileges and Immunities; Immunity, Diplomatic). The second sentence of Art. 31 (6) PCIJ Statute provided that the judges ad hoc should take part in the decision on terms of complete equality with their colleagues and this included diplomatic privileges and immunities when they were engaged in the business of the Court. The expression ‘diplomatic privileges and immunities’ alludes to the content and extent of the privileges and immunities, not to their legal basis which, in the case of diplomatic privileges and immunities proper, lay in customary international law. A formal exchange of notes of 28 March 1928 between the president of the Court and the Netherlands Minister for Foreign Affairs governed the general status and the legal regulation of the Court, its members, and its staff in the Netherlands. The Council took formal note of this exchange. A major issue not covered by that document was the formal protocol relationship between members of the Court and the diplomatic corps accredited to the Dutch sovereign—a delicate matter that remained unsettled until an arrangement was made in 1971 between the ICJ and the Netherlands government. There was no formal regulation of the status of judges outside the Netherlands.
8. The Seat of the Court
23 The Advisory Committee of Jurists recommended that the seat of the Court should be at The Hague, and this was adopted as Art. 22 PCIJ Statute. In the discussion in the Advisory Committee of Jurists, two arguments were advanced in justification: The Hague was already the seat of the PCA, and there was good reason to separate the political function of the League from its judicial functions by assigning a different seat to each group of functions. The president of the Court and the registrar must reside at the seat of the Court. In The Hague, it was accepted that the establishment of the PCIJ was a further measure designed to meet the aims of the Scottish-American philanthropist Andrew Carnegie, who supplied the funds for the erection of the Peace Palace. Accordingly, arrangements were made between the League and the Carnegie Foundation in the Netherlands for the lease of appropriate premises in the Peace Palace for the use of the Court. These premises came to include, apart from the Great Hall of Justice in the northern wing and relevant office accommodation, also the use of two of the major rooms in the Peace Palace, the Salle Bol (named after the painter Ferdinand Bol [1618–82, a pupil of Rembrandt]) and the Japanese Room. The PCA, for whose accommodation the Peace Palace was originally built, was given appropriate space in the southern wing, including the Small Hall of Justice.
24 Once it was accepted that judgments and advisory opinions were to be read in open Court, the publication of these documents became an integral element of the international judicial process, unlike the international arbitration process where publicity does not have the same prominence. The PCIJ decided on a series of official publications ensuring full transparency for all of its proceedings except its internal judicial deliberations where secrecy remains the fundamental rule. The official publications of the PCIJ, most of which are now available on the website of the ICJ, are divided into the following Series: Series A, Judgments and Orders Nos 1–24 (1922–30); Series B, Advisory Opinions Nos 1–18 (1922–30); the preceding were amalgamated to form Series A/B, Reports of Judgments, Advisory Opinions and Some Orders Nos 40–80 (1931–40); Series C, Acts and Documents relating to the Judgments and Advisory Opinions Nos 1–19 (relating to the sessions of the Court in 1922–30) and Nos 52–88 (relating to cases during the period 1931–39); Series D, Acts and Documents relating to the Organization of the Court Nos 1–6 (1926–40); Series E, Annual Reports Nos 1–16 (1925–46); and Series F, General Indexes Nos 1–4 (1922–30).
C. The Development of Procedure
1. Rules of Court
25 Art. 30 PCIJ Statute provided that the Court should frame rules for regulating its procedure. In particular, it should lay down rules for summary procedure. The first duty of the Court after its inauguration was to prepare the PCIJ Rules. It adopted its first PCIJ Rules on 24 March 1922 before it had had any experience. They were largely based on texts prepared by the registrar who had drawn on the experience of major international arbitrations and on the practice of several of the highest Courts of different States. As experience grew, these rules were amended in 1926, 1927, and 1931. In 1931, following the adoption in 1929 of the amendments to the PCIJ Statute, the PCIJ Rules were subjected to a thorough review and revision. New PCIJ Rules were promulgated on 11 March 1936, shortly after the amendments to the PCIJ Statute had entered into force. The minutes of the Court’s meetings devoted to the adoption of the rules, their amendment, and their overall review have been published in PCIJ Series D No 2 and its Addenda. In fact, this was the principal judicial activity in the Court after 1931, in the face of the grave economic crisis of the period, the rise to power of fascist aggressiveness, and the prolonged international tension that led to World War II in September 1939 and the reduction in the number of new cases brought before the Court. The procedural precedents established in the period 1922–40 laid the basis for international litigation procedure more generally (International Court of Justice, Rules and Practice Directions; International Courts and Tribunals, Rules and Practice Directions [ECJ, CFI, ECtHR, IACtHR, ICSID, ITLOS, WTO Panels and Appellate Body]). The PCIJ Rules of 1936 remained in force until the dissolution of the PCIJ in April 1946. They have not only been taken over by the present ICJ but are also largely followed in inter-State international arbitration proceedings (for later developments, see International Court of Justice [ICJ]).
2. Seising the Court
26 The principal procedural decisions of this period concern the major innovation of the PCIJ Statute, always subject to the title of jurisdiction (see Sec. B International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications), opening the way for the unilateral introduction of legal proceedings by an applicant State. Art. 40 PCIJ Statute envisaged two methods of bringing cases before the Court in contentious proceedings, or seising the Court as it is frequently expressed. The first was an adaptation of the traditional method for setting arbitration proceedings in motion by the filing in the registry of a special agreement (Compromis). The second was the introduction of a system for the filing of a unilateral application. This soon led to the development of preliminary objections (see Sec. F International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications), which have come to occupy a prominent place in contemporary international litigation. These innovations also had an impact on diplomatic practices which required time to adjust themselves to the new machineries available to contemporary diplomacy.
3. The Formulation of Judicial Decisions
27 Another set of major procedural decisions of the PCIJ related to the formulation of judicial decisions, whether judgments, advisory opinions, or couched in the form of an order (Judgments of International Courts and Tribunals). The two central features of all of these in the PCIJ are a) their collective formulation as the single decision of the Court based on the continental model and not the accumulation of opinions by the different members of the Court based on the common Anglo-American pattern, and b) their technical bilingualism (each judicial pronouncement being adopted in both the official languages of the Court, English and French, the Court deciding which of the two is ‘authoritative’). In addition, from the earliest times, Art. 57 PCIJ Statute recognized that if the judgment did not represent in whole or in part the unanimous opinion of the judges, dissenting judges were entitled to deliver a separate opinion. In practice, this developed into individual or concurring and dissenting opinions and was applicable not only to judgments but also to advisory opinions and orders. Broadly speaking, it has had as a consequence that the judicial pronouncements came to represent the common denominator on which a consensus could be reached leading to texts that contain the minimum of reasoning sufficient to sustain the Court’s decision embodied in the operative clauses of the judgment or other judicial pronouncement. This system of deliberation was consolidated in the Resolution on the Court’s Judicial Practice, first adopted on 20 February 1931 and revised on 17 March 1936 (PCIJ Rep Series D No 1, 62).
1. Jurisdiction Ratione Personae
28 Arts 34 and 35 PCIJ Statute addressed the Court’s jurisdiction ratione personae. Under Art. 34, only States or members of the League could be parties to cases before the Court. The expression ‘States or members of the League’ was designed to cover members of what was then the British Empire before they had reached the status of independent dominions under the Statute of Westminster 1931 (UK) and the Indian Empire (as it then was). Under Art. 35, the Court was ‘open’ to members of the League and certain other States mentioned at the time in the League Covenant Annex. The Council was to lay down the conditions under which the Court would be open to other States, ‘but in no case shall such provisions place the parties in a position of inequality before the Court’. The Council did this in a resolution of 17 May 1922. That consolidated the fundamental rule that only States can be parties in contentious cases before the Court and the general principle of the equality of the parties at bar. During the existence of the League and the PCIJ, no question on the possibility of international intergovernmental organizations being parties to litigation arose. However, several cases, most notably The Case of the Wimbledon and Interpretation of the Statute of the Memel Territory (Memel Territory Statute, Interpretation of, Case) were brought with the Principal Allied and Associated Powers (a technical term comprising Great Britain, France, Italy, and Japan, arising from the Peace Treaties of 1919) combined as applicants, with separate representation for each.
2. Jurisdiction Ratione Materiae
29 Art. 36 PCIJ Statute prescribed the scope of the Court’s jurisdiction ratione materiae. The basic principle was laid down in the first paragraph: ‘The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in treaties and conventions in force’. This was reinforced by the last sentence, reading: ‘In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court’.
[t]he Members of the League of Nations and the States mentioned in the Annex to the Covenant may, … when signing or ratifying the Protocol [of Signature] … or … later …, declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other Member or State accepting the same obligation, the jurisdiction of the Court in all or any of the classes of legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; [and] (d) the nature or extent of the reparation to be made for the breach of an international obligation.
E. Applicable Law
31 Art. 38 PCIJ Statute indicated what the Court should apply, namely, a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States (Treaties); b) international custom, as evidence of a general practice accepted as law; c) the general principles of law accepted by civilized nations; and d) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The purpose of the last item was to prevent the Court from declaring a non liquet. In so far as judicial decisions are concerned, this was subject to the rule set out in Art. 59 PCIJ Statute, to the effect that the decision of the Court has no binding force except between the parties and in respect of that particular case. This was intended to exclude the Anglo-American common law rule of the binding force of judicial precedents (Stare decisis). This notwithstanding, the PCIJ began the practice of citing its earlier decisions whenever relevant, thus contributing to the development of consistency and stability in judicial decisions rather on the continental model of la jurisprudence constante.
32 Art. 38 PCIJ Statute is widely regarded as a satisfactory codification of the ‘sources’ of international law although practice has shown that it does not impose any limits on the ability of any international Court or tribunal, including the ICJ, from seeking intellectual inspiration elsewhere, for instance, in resolutions of a competent international organ, without developing any theory of the binding force of judicial precedents or any theory of a hierarchy of international Courts and tribunals. Art. 38 is better understood as indicating in a non-exclusive way how the general thesaurus of international law is composed. In that sense, the provision is a political statement drawn up in the political organs that established the PCIJ in the aftermath of the Great War and it reflects the legal thinking of that period. It is not an orderly listing of the materials. Treaties come first since normally, a treaty is, for its parties, lex specialis as opposed to the lex generalis of customary international law.
F. Advisory Opinions
33 As stated, Art. 14 League Covenant, which envisaged the establishment of the PCIJ, provided that the Court, in addition to its function of determining any dispute of an international character which the parties submit to it, ‘may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly’. This was a major innovation in international practice. Time and experience were needed before contemporary international organizations and institutional diplomacy could approach it and before it was fully assimilated into the League’s practice, especially that of the Council (the Assembly, although empowered by the Covenant to request advisory opinions, never did so). The Council never requested an advisory opinion on a request adopted by a majority in the Council, it always did so only after a unanimous decision and nearly always as an element in the settlement of a dispute brought before it (see International Organizations or Institutions, Decision-Making Process; International Organizations or Institutions, Voting Rules and Procedures). Where the advisory opinion was requested on a ‘dispute’ between two or more States, this supplied a general, even if remote, consensual basis to the Court’s action in hearing the case and giving the requested opinion.
the Court, acting on the request of the Council or the Assembly, only gives an advisory opinion which it is for the Council or the Assembly to adopt and of which they must deduce the consequences. Whereas a judgment of the Court, following upon an action brought by a party, is binding and has the force of res judicata, this is not so in the case of a decision given upon a point referred to it by the Council or by the Assembly. In this case the Court does not pass judgment; it merely advises. (Report of the Advisory Committee of Jurists on its proposed article 36, Procès-Verbaux 693, 730)
35 The PCIJ Rules for advisory cases were developed slowly. The 1922 PCIJ Rules were limited to the statement that advisory opinions were to be given after deliberation by the full Court and that dissenting opinions would be permitted (Art. 71 1922 PCIJ Rules). Many of the general rules that the Court developed for contentious cases are also applicable to advisory cases.
36 In the course of its active existence (1922–39), the PCIJ rendered 32 judgments in contentious cases, 27 advisory opinions (all at the request of the Council), 6 orders indicating provisional measures of protection (Interim [Provisional] Measures of Protection), and over 100 procedural orders relating to the conduct of cases before it. This activity took place alongside normal processes of inter-State arbitration and a large number of special tribunals dealing with matters arising out of World War I and the Peace Treaties of 1919. This judicial activity is of major importance in the development of the general procedure for international litigation and it required the gradual acceptance of this method for the pacific settlement of disputes in the general arsenal of diplomatic processes.
37 On the substance of the cases brought before the PCIJ, a contemporary assessment of the Court’s work by one of its members pointed out that it would be difficult to say that any of its cases threatened to become a casus belli, though some of them related to differences which, had they been allowed to fester, might have led to serious international complications (Hudson The Permanent Court of International Justice 238.) It is believed that the last observation essentially refers to the advisory cases in the PCIJ. Apart from six opinions rendered to the Council upon the request of the ILO and one upon the joint request of Great Britain and France (Nationality Decrees Issued in Tunis and Morocco), nearly all the remaining advisory opinions dealt with questions arising out of the Peace Settlements of 1919, especially in Central and Eastern Europe, that is, the very sensitive part of the 1919 settlement that led directly to the eruption of war in 1939. For example, no less than five advisory opinions addressed questions relating to the Free City of Danzig (Danzig, Free City of), and another addressed the very sensitive issue of the Customs Regime between Germany and Austria (Advisory Opinion). In retrospect, one can see in some of these cases an attempt—probably premature—to bring the PCIJ, working in conjunction with the Council, into the then current system of crisis management, unsuccessful with the collapse of the whole League system of peace management.
38 Nevertheless, the value of the settlement of international disputes through an international Court of the standing of the PCIJ, whether through its contentious jurisdiction or through its advisory competence, became widely accepted in modern diplomatic practice. In the process of the reconstruction of organized international society following World War II, there was no serious demand to abandon the idea of a standing international judicial organ or to require any major change in its practices and procedures. The focus of attention was on the Court’s place in the renewed international organization for the maintenance of international peace and security. This led to the establishment of the present ICJ as a principal organ of the UN. In addition, while the first half of the active life of the PCIJ coincided with the euphoria of the Locarno Treaties (1925) and the General Treaty for the Renunciation of War as an Instrument of National Policy (the Paris Pact or the Kellogg-Briand Pact ), the second half coincided with the deepening economic crisis of the 1930s and the general disintegration of the international situation leading to the outbreak of World War II in September 1939. If, in the period up to 1929, the new Court was finding its way and was engaged in a pioneering effort to establish judicial settlement as an acceptable and practical means for the pacific settlement of international disputes, for which the advisory procedure working in tandem with the Council was also employed, in the second period from 1930–39, international diplomacy faced far more serious challenges with which the League was unable to cope. The progressive collapse of the League could not leave the PCIJ unaffected. The term of office of the serving judges came to an end on 31 December 1939. By virtue of Art. 13 (2) PCIJ Statute, they continued to discharge their duties, that is, they remained technically as members of the Court, ‘until their places have been filled’. During the war, several judges resigned and others died, but there was no machinery then in existence for filling the vacancies. On 31 January 1946, all the Court’s surviving members submitted their resignations to the Secretary-General of the League, thus paving the way for the formal dissolution of the Court by the Assembly on 18 April of that year and the establishment of the new ICJ.
39 Most of the cases that came before the PCIJ raised issues regarding the interpretation of treaties, and indeed, the Court’s contribution to the application of this branch of the law is of lasting significance. The Court’s jurisprudence is also of major general significance for the development of the theory and practice of international litigation between States, here getting down to the details that the 1907 Hague Convention I could not prescribe. At the same time, there are several important clusters of decisions, mostly related to the general political conditions of the time. For instance, there were six advisory opinions relating in one way or another to the Free City of Danzig. A long series of contentious and advisory cases concerned the relations of Germany with Poland (German Interests in Polish Upper Silesia, Cases concerning the; German Minorities in Poland, Cases concerning the; German Minority Schools in Upper Silesia [Advisory Opinion]), and other cases also arose out of the unsettled political conditions in Central and Eastern Europe following the Peace Treaties after World War I. Several cases related to concessions granted by the Ottoman authorities to Greek citizens, matters with which the abortive Peace Treaty of Sèvres (1919) and the Treaty of Locarno (1925) (Locarno Treaties ) with Turkey dealt. A few cases arose out of ‘incidents’. On the other hand, no case directly involving disputes originating between belligerents (Belligerency) and neutrals (Neutrality, Concept and General Rules) during World War I came before this Court. Several such disputes were, however, settled by arbitration. The number and types of legal issues that arose in litigation before the PCIJ were sufficiently broad that, by 1946, it became difficult to compile a statement of the application of international law to given facts without some recourse to the case-law of the PCIJ and the parallel inter-State arbitrations to date.
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