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Statute of the Permanent Court of International Justice, 16th December 1920 (6 LNTS 389, 114 BFSP 860), OXIO 279

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 June 2019

Subject(s):
Jurisdiction — International courts and tribunals, powers

Core Issues

1. The structure and powers of the Permanent Court of International Justice (‘PCIJ’) according to the Statute of the Permanent Court of International Justice (‘Statute’), and the Statute’s influence on the International Court of Justice.

2. The types and bases of jurisdiction envisaged by the Statute.

3. The contribution of the PCIJ’s institutional characteristics to its legacy.

This headnote pertains to: Statute of the Permanent Court of International Justice, an instrument the text of which has been prepared by and/or adopted in the framework of an international organization. Jump to full text

Background

At the time of its creation, the Permanent Court of International Justice (‘PCIJ’ or ‘Court’) was novel and unique. Much like its successor the International Court of Justice (‘ICJ’), the PCIJ was created in the aftermath of a world war, when the peaceful settlement of disputes was an area of particular concern.

The question of an international court was not new following the First World War. Over the course of the nineteenth century, states paid increasing attention to the peaceful settlement of disputes, in part because of the rising costs and devastation of warfare. This was evidenced in the Hague Peace Conferences of 1899 and 1907, which resulted in an agreement to create the Permanent Court of Arbitration (‘PCA’), the development of a code of arbitral procedures, the Hague Convention on the Creation of an International Prize Court—which never entered into force—as well as a draft, unfinished, convention for the creation of a Court of Arbitral Justice. An international court was proposed at the 1907 Hague Peace Conference. However, the state attendees failed to reach agreement on several key issues, particularly the composition of the court and the question of compulsory jurisdiction. In the same year—1907—the Central American Court of Justice was established. Although its jurisdiction was limited to a specific region, it was the first permanent international court with jurisdiction over sovereign states.

In the aftermath of the First World War, there was increased impetus to create an international court to contribute to greater governance on an international level. During the negotiation of the Covenant of the League of Nations (‘League Covenant’ or ‘Covenant’) at the 1919 Paris Peace Conference, it was suggested that a court be included as an organ of the League of Nations (‘League’). However, given time pressures and other political considerations, the decision was taken to create a court that was apart from, but open to, the League members. Article 35 of the Statute of the Permanent Court of International Justice (‘PCIJ Statute’ or ‘Statute’) therefore read:

[t]he Court shall be open to the [m]embers of the League and also to [s]tates mentioned in the Annex to the Covenant. [Article 35]

The task of drawing up the outline of an international court and its statute was delegated to the Council of the League of Nations (‘Council’). The broad outlines of the court’s jurisdiction, including its power to render advisory opinions, had already been agreed and included in the League Covenant. Article 14 of the Covenant read:

‘[t]he Council shall formulate and submit to the [m]embers of the League for adoption plans for the establishment of a [PCIJ]. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly’ (Article 14 League Covenant).

The Council established an Advisory Committee of Jurists (‘Committee’) which consisted of ten members, to develop the proposed ‘plans for the establishment’ of the PCIJ. The Committee submitted a lengthy report, including a recommendation that the Court have compulsory contentious jurisdiction over legal disputes, a recommendation that the Council rejected.

States did not sign and ratify the PCIJ Statute, but a Protocol of Signature to which the Statute was annexed. In December 1920, the Protocol of Signature was opened for signature and ratification and the PCIJ Statute entered into force in September 1921. A series of amendments were drawn up and embodied in a Protocol of Signature in 1929. The amended Statute entered into force in 1936.

Summary

Structure of the PCIJ Statute

The PCIJ Statute was divided into four chapters: (1) the organization of the Court; (2) the competence of the Court; (3) procedure; and (4) advisory opinions. The chapter on the PCIJ’s organization was by far the longest—32 articles of 68 in the 1929 version—and addressed matters from elections of judges to the constitution of special chambers. The Court initially had nine Members and four deputy Members, but, following the amendments to the PCIJ Statute, the number of sitting judges increased to 15. [Article 3] However, the Statute also provided for the Chamber of Summary Procedure and two special chambers—a chamber to hear disputes concerning labour, and another to hear disputes concerning communications and transit—and particularly cases arising out of Parts XIII and XII of the Treaty of Versailles, respectively, or corresponding provisions of other peace treaties. [Articles 26–27, 29]

The relationship between the PCIJ and the League

The PCIJ was not an organ of the League, but its establishment was intrinsically linked to the League’s objectives. The Preamble to the League Covenant notes an ‘acceptance of obligations not to resort to war’ and the ‘firm establishment of the understandings of international law as the actual rule of conduct among [g]overnments’ and by the ‘maintenance of justice’ (League Covenant, Preamble). As part of that commitment, League Members: ‘agree[d] that, if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or judicial settlement’ (Article 12 League Covenant, para 1).

Further to that, the Covenant contained an obligation for Member States that: ‘whenever any dispute shall arise between them which they recognize to be suitable for submission to arbitration or judicial settlement, and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration or judicial settlement’ (Article 13 League Covenant, para 1).

‘For the consideration of any such dispute, the court to which the case is referred shall be the [PCIJ], established in accordance with Article 14, or any tribunal agreed on by the parties to the dispute or stipulated in any convention existing between them’ (Article 13 League Covenant, para 3).

Further, there were many institutional links between the PCIJ and the League reflected in the Statute, including: (1) the judges were to be elected by the League Assembly and Council; [Article 4] (2) salaries were fixed by the Assembly on recommendation from the Council; [Article 32] (3) the Assembly and Council were granted the authority to request advisory opinions from the PCIJ; [Article 65] and (4) the Secretary-General of the League was the depository of the Protocol of Signature of the Statute.

Throughout the PCIJ’s life, there remained a balancing act between its independence from the League, and its envisaged purpose and role, when it was established by the League, in achieving the League’s objectives: ‘[c]onceptually, the [PCIJ] was part of the League’s new machinery for the governance of the world. At the same time, however, the PCIJ was always an independent international institution’ (Kolb 45).

Jurisdiction

The PCIJ had the jurisdiction to hear contentious cases between states, and give advisory opinions (Article 14 League Covenant).

The PCIJ’s jurisdiction to hear a particular dispute was dependent upon state consent. Article 36 of the Statute provides for the PCIJ to have jurisdiction over ‘all cases which the parties refer to it and all matters specially provided for in treaties and conventions in force’. [Article 36] Consent could therefore be given in a treaty or convention, or by special agreement—either in advance, or at the time the dispute arose.

Members of the League and states listed in the Annex to the Covenant could also deposit an optional declaration—unconditionally or on condition of reciprocity—over legal disputes concerning:

  1. (a)  the interpretation of a treaty;

  2. (b)  any question of international law;

  3. (c)  the existence of any fact which, if established, would constitute a breach of an international obligation;

  4. (d)  the nature or extent of the reparation to be made for the breach of an international obligation.

States that wished to make such a declaration under Article 36 of the Statute were to do so in the wording of an Optional Clause that was appended to the Protocol of Signature to the Statute (Tomuschat 639).

Article 37 of the Statute noted that where a treaty or convention refers a matter to the tribunal established by the League, the matter falls within the competence of the PCIJ. [Article 37]

Disputes were also subject to the jurisdiction of the PCIJ pursuant to the General Act for the Pacific Settlement of Disputes (‘General Act’), adopted by the League Assembly on 26 September 1928. Article 17 of the General Act is a compromissory clause, which requires that disputes be referred to the PCIJ, subject to applicable reservations and any agreement to the refer the matter to arbitration. Article 17 of the General Act reads:

‘[a]ll disputes with regard to which the parties are in conflict as to their respective rights shall, subject to any reservations which may be made under Article 39, be submitted for decision to the Permanent Court of International Justice, unless the parties agree, in the manner hereinafter provided, to have resort to an arbitral tribunal’ (Article 17 General Act).

There were 33 States Parties to the General Act by 1939. The General Act has subsequently been invoked as a basis for the ICJ’s jurisdiction—pursuant to Article 37 of the Statute of the International Court of Justice (‘ICJ Statute’) (see Analysis, Statute of the International Court of Justice (OXIO 95)). In the Aegean Sea Continental Shelf case, the ICJ, pursuant to the principle of reciprocity, permitted Turkey to rely upon a reservation entered by Greece to the General Act (para 90). In the Aerial Incident of 10 August 1999 case, the ICJ found that it did not have jurisdiction as India had declared that it did not consider itself bound by the General Act following its independence (para 28).

The PCIJ could give an advisory opinion if requested by the League Council or Assembly (Article 14 League Covenant). [Article 65] In practice, it was the Council that referred questions to the PCIJ.

Analysis

The creation of a standing international court facilitated the international settlement of disputes. The standing nature of the PCIJ empowered parties—especially where an optional clause had been deposited—to seize the court unilaterally, irrespective of subsequent consent. The creation of the PCA had resulted in a set of procedural rules—negating the need for parties to set these out on an ad hoc basis. However, these were only incorporated where PCA arbitration was agreed upon. Further, states could still block or delay establishing an arbitral tribunal. The PCIJ, on the other hand, was composed of a permanent panel of adjudicators.

Unlike the ICJ, the PCIJ was not an organ of the League; however, the institutional links were strong. The budgetary oversight, election of judges, and other organizational links cemented the relationship between the League and the PCIJ, and the advisory function offered a jurisprudential and further operational links.

The PCIJ had novel and unique institutional characteristics that contributed to its influence. These included the PCIJ’s international nature, its ‘permanence’, ie as a standing rather than ad hoc body, its capacity to provide advisory opinions, and its independence.

The PCIJ’s status as separate from the League emphasised its independence from the League’s political institutions, and ‘facilitated cooperation with the Court by states that were not [m]embers of the League itself’ (Kolb 45). This contributed to the internationalisation of dispute settlement between states, as well as the PCIJ’s status as an international court. This also distinguished the PCIJ from earlier efforts at compulsory jurisdiction, such as the Central American Court of Justice (regional), or the idea of a Prize Court (subject matter specific). It also influenced the PCIJ’s perception of its identity: it termed itself an ‘organ of international law’ (Certain German Interests in Polish Upper Silesia, page 19), although commentators have noted that, despite this self-proclaimed status, the PCIJ paid scant attention to the findings of other international tribunals (d’Aspremont 239). An independent and ‘international’ character also contributed to the PCIJ’s ability to develop international legal principles specifically, and the international rule of law more generally. Its ‘permanence’ allowed the PCIJ to reinforce its pronouncements over time.

The PCIJ’s capacity to issue advisory opinions to facilitate the work of the League of Nations was ‘a major innovation in international practice’ (Rosenne, para 4). The power to issue advisory opinions was drawn from the Covenant (see aforementioned). The Statute made no reference to advisory opinions until the amended version was adopted in 1936. Advisory opinions were a way to facilitate the work of the League, including to ensure clarification and consistency of legal principles, and as a potential means of diplomacy. The Council invoked the PCIJ’s advisory jurisdiction on many occasions, and the PCIJ delivered almost as many advisory opinions as decisions in contentious cases. Article 14 of the Covenant envisaged opinions on ‘disputes’ as well as ‘questions’. However, in response to a request for an opinion in the Status of Eastern Carelia case, the Court stated: ‘[i]t is well established in international law that no [s]tate can, without its consent, be compelled to submit its disputes with other [s]tates either to mediation or arbitration, or to any other kind of peaceful settlement’. This was ‘a fundamental principle . . . of the independence of [s]tates’ (Status of Eastern Carelia, page 27). The institutional ‘risk’ was realised in the Customs Regime between Germany and Austria advisory opinion, when the Council exercised what some commentators have called a ‘dumping manoeuvre’ for a matter that was too ‘hot and divisive to handle’. This generated debate about the scope of the PCIJ’s competence and its foray into ‘political’ questions (Muller, Raić, and Thuránszky 282).

While the creation of the PCIJ itself was a recognition that alternative dispute resolution procedures were contributors to peace, there was still a reluctance to relinquish sufficient sovereignty to agree to compulsory jurisdiction. States Parties to the League Covenant expressed a readiness to resort to judicial settlement or arbitration, but the wording in the League Covenant to referring disputes to judicial settlement (as set out above) were recommendatory in nature.

‘Notwithstanding the expressions of preference to be given to adjudication, it was still fairly open whether Arts. 12 and 13 of the Covenant of the League contained any binding and enforceable obligations or whether the pertinent words constituted no more than a recommendation, to be executed in any single instance by the parties concerned through the conclusion of a compromis (or special agreement), which would then specify the precise modalities of submission of a given dispute to judicial determination. Decisive arguments militated in favour of the latter alternative since in any event the [s]tates concerned had to make a choice between arbitration and judicial settlement’ (Tomuschat 638).

As noted above, the Council rejected the Committee’s recommendation that the PCIJ have compulsory jurisdiction. This question has continued to be front and centre of discussions surrounding the constitution and role of the PCIJ’s successor, the ICJ (see OXIO 95), and international dispute resolution mechanisms more generally.

Impact

The PCIJ was a landmark international organization. It was the first standing international court of general or specific subject matter jurisdiction. It was bound by its Statute and Rules of Procedure, which were applied in all cases—as opposed to a series of ad hoc bodies—representing a consistent practice on key facets of dispute resolution at the international level. This also contributed to international procedure and institutionalisation.

When a new organization was devised to replace the League of Nations, there was no question that the new organization would have a standing international court—the experience of the PCIJ as an institution had made a mark. As early as 1945, the United Kingdom and United States declared themselves in favour of the establishment or re-establishment of an international court after the Second World War (The Permanent Court of International Justice, 1922–2012, 15). Standing international courts are now a feature of the international dispute resolution landscape.

Further, the ICJ Statute is largely based on the PCIJ Statute and many of its more unique features were inherited, including an advisory function and a standing consent to jurisdiction by optional declaration (see OXIO 95). These two institutional innovations created a form of compulsory jurisdiction—there are currently 73 optional clause declarations deposited with the ICJ—as well as what is seen today as ‘an instrument of preventative diplomacy [that] help[s] keep the peace’ (ICJ Advisory Jurisdiction). The ICJ Statute specifies that advisory jurisdiction is exercised in respect of a ‘legal question’ (Article 65 ICJ Statute).

In contrast to the League, which was abolished and reformed, the continuity between the ICJ and PCIJ Statutes recognised that the PCIJ Statute had much to offer. Some of the battles fought and lost—such as for compulsory jurisdiction—are questions that still surround international judicial settlement. One key difference between the PCIJ and ICJ is the institutional integration of the ICJ into the United Nations (UN) system—while safeguarding its independence. This was partly a reflection of the membership of the UN, as compared with the League. Envisaging the ICJ as the ‘judicial organ’ of the UN—one international organization rather than two—was also recognition of the potential role of judicial resolution in achieving the peaceful resolution of disputes, and a legacy of the experience of the PCIJ.

As aforementioned, the Preamble to the League Covenant noted international law as the ‘rule of conduct’ between states, and the PCIJ was the first body given a broad mandate to make authoritative pronouncements on international law. The PCIJ was the first institution designed to represent the major legal systems of the world at that time (Tomuschat 165), and its ability to draw on ‘general principles’ as a source of law was one reflection of this.

Between 1922 and 1940, the PCIJ delivered 32 judgments in contentious cases between states, and 27 advisory opinions (Rosenne, para 36). The last order of the PCIJ was published in 1940, following which it ceased operations due to the Second World War. The PCIJ was formally dissolved in 1946.

The jurisprudence of the PCIJ makes frequent and influential appearance in the decisions of international bodies almost a hundred years later, most obviously in ICJ jurisprudence, but also in the work of many other tribunals and bodies. The PCIJ’s Factory at Chorzów decision involving the principle regarding the conception, standard, and forms of reparation under international law has been cited by many different bodies and codified in the International Law Commission (‘ILC’) Articles on Responsibility of States for Internationally Wrongful Acts (see, for example, Articles 31, 34–36 Draft Articles on Responsibility of States for Internationally Wrongful Acts). ‘The legacy of the PCIJ is indubitable. In particular, it cannot be contested that the PCIJ case law has particularly marked the case law of its successor in The Hague on a wide array of substantive and procedural issues’ (d’Aspremont 240). This is particularly true of the PCIJ’s treatment of the interpretation of treaties: ‘the Court’s contribution to the application of this branch [treaty interpretation] 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 [s]tates’ (Rosenne, para 39).

That jurisprudence also contributed to the development of the law of international organizations. Several of the PCIJ’s rulings developed the law on the capacity and powers of international organizations, for example in Interpretation of the Greco-Turkish Agreement of 1 December 1926, which Montejo concludes strengthened the concept of international organizations having international personality separate from their members, and was the first elaboration of the doctrine of implied powers of international organizations (at 77). The PCIJ also contributed to the law of international organizations simply by its existence and permanence, the exercise of the jurisdiction and functions set out in the Statute, and the elaboration of procedural rules, such as those on advisory opinions concluded in 1936.

While the development of international law will remain one of the PCIJ’s lasting legacies, we are reminded that ‘[t]he Court’s influence upon the development of international law, considerable as it may be, is incidental in character as compared with the immediate effect which its judgments and opinions [had] on international relations, by providing a settlement for international disputes or by indicating what, in law, the solution of these disputes, whether existing or future, should be’ (The Permanent Court of International Justice, 1922–2012, 51). The PCIJ changed the landscape of international relations and the way that these could play out. The various different international courts in operation today, adjudicating the actions of sovereign states and issuing binding judgments, are all influenced by the existence and legacy of the PCIJ.

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