THE creation of the Permanent Court of International Justice marked a tremendous step forward. It gave reality to one of the oldest aspirations of the civilized world, the aspiration for an international tribunal which should be independent, technically qualified and enduring. A first attempt was made in 1899, in the guise of the Permanent Court of Arbitration, which still exists, but which has none of the attributes of a real tribunal except the name. A new attempt was made in 1907 to form a court of arbitration and an international prize court, but it failed for lack of agreement regarding the composition of the court or the choice of judges or the laws to be applied.

In 1920, thanks to the existence of the League of Nations, the obstacles which theretofore had been encountered could at last be surmounted. The coöperation of its two principal bodies, the Assembly and the Council, in the choice of judges, made it possible both to respect the principle of the equality of the member states, by subjecting all the judges to the process of election, and at the same time to satisfy the great powers through the certainty that each will always have on the bench a representative of its own nationality. The judges are chosen by the Assembly and the Council acting together from a list of candidates proposed by the national groups constituting the Court of Arbitration of The Hague.

This arrangement for the coöperation of the two main bodies of the League of Nations avoids all danger of the forming of coalitions. The Assembly and the Council, representing respectively the number and the power of the states, are placed on one plane of equality; in order to secure election, the judges must command the confidence of both.

The Court is composed of fifteen members, eleven of them judges and four deputy judges. At the present time they are drawn from ten European, three American and two Asiatic countries, among them being representatives of all the great powers which are members of the League of Nations, and also the United States, although it takes no part in the League. As they are elected for a term of nine years and are eligible for reëlection indefinitely, the judges enjoy an independence which is assured by their immunity from removal, by their possession of diplomatic privileges and by adequate payment.

The Court has been installed in the Peace Palace at The Hague since the beginning of 1922. Although it is only four years old, its activity has already developed to an important extent. It has rendered eighteen decisions, of which six were judgments and twelve advisory opinions. Thus it has accomplished more in four years than the Court of Arbitration in twenty-four years, since it has already dealt with as many cases. Its activity, it might be added, has concerned a large number of states. The eighteen cases judged by the Court of Arbitration have involved sixteen states, eleven of them European, four American, and one Asiatic. The activity of the Permanent Court of International Justice has involved eighteen states, all European; up to the present time no non-European state has come under the jurisdiction of the Court.

In general the work which the Court has accomplished merits the widespread praise which it has received. Its decisions are based on sound argumentation and are written in a clear and calm style, commanding respect and carrying conviction. The spirit of impartiality which they display justifies the hope and the confidence with which the world regards the Court.

Doubtless it is too early to express a final opinion on the value of the Court. But the experience already gained affords a basis for the suggestion of certain modifications and improvements, particularly as regards its composition, its sphere of competence, its procedure, and the international law which it applies.

I

In the first place, the composition of the Court is not entirely satisfactory from all points of view.

This applies first of all to the choice of judges, which is made by all the states members of the League of Nations, and by them alone. This system presents a two-fold peculiarity. On the one hand, there are members of the League of Nations, about one-fourth of the total number, who have not yet adhered to the Protocol establishing the Court and who nevertheless participate in the election of its judges. On the other hand, there are states not included in the League, which either because they are mentioned in the Annex to the League Covenant or simply because they have subscribed to the necessary conditions, may avail themselves of the jurisdiction of the Court and yet cannot take part in the election of judges. There is a certain justification for the first of these anomalies in the fact that the members of the League who vote for the judges of the Court without having accepted its jurisdiction, contribute as do all the other members to the costs of its operation. The second could be rectified by the method which has been proposed for the participation of the United States in the Court, or by any similar method which would permit this third group of states to which the Court is open to take part in the choice of its judges and to contribute to its support.

The procedure at present followed in the election of judges also leaves something to be desired. The guiding thought was that the elections should be protected so far as possible from political influence and conducted in such a manner as to make certain that the authority of the Court could not be impeached. This was the reason for entrusting the task of designating the candidates to the members of the Hague Court of Arbitration. It would be an exaggeration to say that, thanks to these precautions, political influences play no part whatsoever. On the contrary, in some cases a previous agreement among certain countries regarding candidates actually has reduced the election to a mere formality. It should be said, also, that when the Assembly of the League is called upon to decide among the various candidates, it is not always sufficiently well informed regarding their respective qualifications. It would be desirable to have a ruling by the Assembly on the procedure to be followed in elections, instituting a preliminary examination of the claims of the candidates by a special commission meeting in secret session. The choices so far have been excellent, it is true; but if future elections were made subject to this sort of procedure, they would be the more certainly freed from any suspicion of political influences.

It has already begun to be evident that as the activity of the Court expands the number of judges must prove insufficient. Provision was made for an increase, and it could occur without any change in the Statutes of the Court, up to a total of fifteen judges and six deputy judges. Doubtless such an increase will take place progressively with the admission into the League of those great powers not yet participating in it.

But a need which was not foreseen and which must be provided for in order to expedite the work of the Court, is the broadening of Article 25 of the Statutes, which now requires a quorum of nine members to constitute the Court. It would seem advisable to authorize, in addition to the present chambers of three and five judges, the constitution of other chambers of five and of seven judges, with the right to sit at the same time. In this manner the Court could deal with more cases in the course of one session. There would be no serious danger of destroying the unity of the jurisprudence of the Court, because the same individuals would in turn make up the various chambers. Furthermore, the division of the Court into chambers would provide a remedy for the difficulties at times created by the diverse conceptions of law prevailing in different parts of the world. It was thought advisable to recognize this diversity, and to give it representation, as a guaranty of international justice and as a means of clothing the Court with more influence and authority. This may be necessary in judging cases of inter-continental scope, in which countries of different mentalities confront each other. But experience seems to show that the system is less suited to the judgment of disputes between states of one continent. Apparently disputes of this nature can be judged better by judges having the same conception of law and the same type of mind as the contestants.

The composition of the Court is open to criticism, also, in connection with the participation of judges of the same nationality as the parties to a case. This was considered a necessity, since the contestants are sovereign states which are not yet accustomed to yield to judicial demands. It was feared that they might hesitate to submit their differences to the Court if judges of their own nationalities were not sitting on the bench. But it is no less true that this constitutes an obstacle to the good administration of international justice, for no matter what effort he may make to attain the height of impartiality and the serenity of judgment expected of a magistrate, a judge called upon to consider a case interesting his own country will not always succeed in freeing himself from all national concern. It is a still more serious consideration that his attitude may influence those of his colleagues who have any reason to remember special ties existing between their countries and his. If any of the decisions already handed down by the Court deserve any degree of criticism, it is the cases in which judges of the same nationality as the parties have participated. One cannot avoid noticing that they have rarely rejected the contention of their own country, that they have separated themselves from the majority, and that they have insisted on making public their dissenting opinion. Doubtless it was mere chance that their own conviction and the interests of their country coincided. But it unquestionably is embrarassing, for, as the great French lawyer Louis Renault said with infinitely good reason, it is not enough that justice should be just, it must likewise appear to be so.

It is impossible to disguise the fact that progress in this regard will be slow; for a long time we shall have to reckon with the moral weakness of men, and still more with the lack, in most countries, of the international spirit.

At the very least it will be necessary, so long as the system of national judges remains in force, to provide that its application shall not cause any inequality, as may happen now in summary procedure and in advisory procedure, when one of the parties may have on the bench a judge of its own nationality while the other party is not permitted to be so represented. It would be preferable either to replace the national judge with a neutral judge or else to authorize the nomination of a judge of the same nationality as the second party. No inequality of treatment has yet occurred in any actual case in summary procedure. But it has occurred in advisory questions. It is easy enough to say that in such cases there are neither contestants nor a final judgment; that is a theoretical view. In fact, especially when the advisory opinion bears on a question which has already become a matter of legal dispute, there are two states in conflict with each other and only one of them has a judge of its own nationality in the Court. Moreover, although advisory opinions do not have the authority of a final judgment, they do have a high moral import and great practical influence.

II

The Court does not yet possess international jurisdiction in the full meaning of the term. Its competence does not extend to all international disputes. It is limited in two ways, on the one hand as regards contestants and on the other as regards the actions that may be brought.

Only states may be parties before the Court. From this point of view the Court has a truly world-wide character. Its jurisdiction applies at present to sixty-nine states, -- to fifty-seven by direct right, either because they are members of the League of Nations or because they are mentioned in the Annex to the Covenant, to twelve by virtue of their declaration that they accept the conditions necessary to come before the Court.

It appeared premature to go further and to give individuals access to the Court. An individual injured by the illegal action of a foreign country cannot obtain international justice except by the intervention of his Government, which may agree to take his case in hand as its own. This will not always occur, because such matters may be influenced by political considerations. It may be, for example, that the government of the would-be plaintiff fears to displease the offending country, especially if there is a great difference of strength between them. With international custom what it is at present, it is necessary to have a certain courage, not possessed by all governments, to rise above convention and to appeal to justice.

There is no objection in principle against the bringing of an action directly by individuals. There is only an exaggerated fear of international difficulties. So far as it has any cause, a remedy for it could be found by drawing upon the Convention of 1907 for the establishment of an International Prize Court. This would only accord to individuals the right to bring action directly, subject to the reservation of the right of their government to refuse them access to the Court, or to bring action itself in their stead (Article 4, 2nd and 3rd Par.). With this precaution, the bringing of actions by individuals presents only advantages, even from the point of view of diplomacy, since the government of the individual concerned would be less exposed to conflict with the other government than if it brought action itself, as at present it is under obligation to do for the protection of a citizen whose demand appears absolutely just.

In the end this reform will be realized, for there is a real need for it in international life. Even now individuals who have no other means of securing justice, especially when they are deprived of any legal nationality and cannot procure the protection of any government, instinctively address themselves to the Court, which is compelled by its statutes to refuse to hear them. The first annual report of the Court (1922-1923) gives (pages 153 and 156) an impressive list of such pleas. As their number multiplies, the failure of international justice in this respect will be seen to be so scandalous that measures to bring it to an end will be absolutely imperative.

The competence of the Court is limited, in the second place, as regard actions that may be brought. In principle its competence is only optional. That is to say, the contestants must agree to bring their dispute before it.

The Court has obligatory authority only in exceptional cases, by virtue of a special provision which gives a member state in certain sorts of cases the right to bring them before the Court without the previous agreement of its opponent. These exceptions are tending to increase. A great number of them may be found in the treaties concluded since the war, particularly as regards matters relating to racial minorities and to colonial mandates, or in recent treaties of arbitration and conciliation. Furthermore, the Statute of the Court (Art 36) gives the members of the League of Nations the opportunity of broadening the sphere of the Court's obligatory competence. They can declare that, as regards any other member of the League accepting the same obligations, they recognize fully and without any special agreement the jurisdiction of the Court for any or all of the classes of disputes of a juridical nature having for their particular object the interpretation of a treaty, any question of international law, or the determination of the reparation due for the violation of an international agreement.

But a repugnance to the exercise of obligatory authority by the Court remains very strong among almost all states. To a certain extent it is unaccountable.

Up to the present time advantage has been taken only rarely of one of the special agreements establishing such obligatory authority. It has even happened that a state called before the Court under these conditions has begun by pleading an exception on the ground that the Court was not competent to act, alleging that the agreement cited in order to summon it did not apply to the particular case. And in such circumstances the Court has hesitated, has divided in taking its decision, and has ended by failing to affirm its own competence except within limits, and only by a majority vote. There is no need to be disturbed by this resistance on the one side and timidity on the other. There is a long course of education to be carried through, both of the governments and the Court itself.

At least there is cause for congratulation in the fact that the right has been conceded to the Court to pass on questions of its own proper competence. Formerly, in the general practice followed in arbitration, governments did not concede this power to arbitors. On the contrary, when they raised any question of doubt as to the competence of arbitors, it was with the assumption of reserving to themselves alone the right of deciding it. Today, while contestants before the Court are free to challenge its competence, as before any other tribunal, it remains for the Court itself to rule on the point whether or not it is competent to act.

Very few members of the League have availed themselves of the provisions of Article 36 of the Statute of the Court. Only twenty-four have done so, and of these only fifteen in final and definite terms. The majority have not been willing to accept the obligation without making reservations which they were not certain that they had the right to formulate. This point was clarified in 1924, during the discussion of the Protocol for the Peaceful Settlement of International Disputes. It was recognized that since they are free not to admit the competence of the Court except in certain categories of disputes specified in Article 36, the states have a still stronger right not to admit it in any of these categories except subject to limitation. With the advantage of this latitude of action, the Fifth Assembly recommended to the members of the League of Nations that they give their adherence to the optional provisions of Article 36, which the Protocol upon coming into effect would have made obligatory. Up to the present time very few states have acted upon the suggestion.

III

Procedure before the Court follows the lines of procedure in ordinary tribunals. It is essentially legal in character. It has been necessary constantly to take into account the international character of the Court's jurisdiction and to reconcile the different systems of procedure followed in the various countries. Consequently there are a certain number of special rules which experience has shown to be not entirely free from disadvantages.

First of all, there is the inconvenience of using two languages -- French and English -- in all the Court procedure and in the drawing up of opinions. Contestants as well as the Court use one of these two languages, the accuracy of the translations being assured by the pains taken by the Registry. This involves nothing more than a larger expenditure than might otherwise be considered necessary. But it is a different matter in oral debate. The obligation to translate each argument, and even to do so by sections, represents more than simply a loss of time. It makes discussion more complicated and deprives it of some of its weight and power to carry conviction. Both judges and lawyers ought to understand both languages equally well, so as to render unnecessary the immediate translation of arguments. It should suffice to furnish the translation after the conclusion of debate, for the use of those individuals who might find a need of verifying the meaning of certain passages which they had not grasped perfectly. This slight reform can be carried out very easily.

Another rule not beyond criticism is that regarding the right of members of the Court which find themselves in the minority when it pronounces a majority decision, to attach to it a statement of their own personal opinion. This right was admitted as a concession to the system of legal procedure followed in Anglo-Saxon countries. Very weighty arguments can be brought to justify it, but the use which has been made of it seems to have revealed more disadvantages than advantages. In principle, it may be true that the publication of dissenting opinions lessens neither the prestige of the Court nor the authority of majority decisions. But it is a different matter when dissenting opinions multiply, contradict each other, attack each other on the grounds of the majority decision itself, and affirm self-contradictory or obviously erroneous theories. Without demanding the abolition of the system, which might be difficult to secure and which also might be attended at present with practical disadvantages, it can be urged that this privilege should not be exercised except with the greatest wisdom and moderation.

Finally, it is desirable for the procedure of the Court to approach much more closely that of regular legal tribunals. It is important, in cases before this Court as before any genuine tribunal, to avoid unexpected developments or inequalities as between the contestants. For instance, it is not logical that when a procedure has been opened on the basis of a compromise agreement, the arguments of the parties should always be presented together. It is easy to understand why it should be so when the Court has to deal with demands from both sides. On the other hand, when demands are presented only on one side, the most practical system would be that of successive argument; the discussion thus would gain in clarity and the task of decision would become easier.

Also, the Court's regulations as regards details of procedure are here and there deficient. There is nothing to force a contestant who wishes to plead an exception on the ground that the Court is not competent to act, to state his objection at the outset, before his opponent has submitted his case. From this it results that he can choose the most advantageous moment and also gain by the fact that his opponent has exposed his argument while he has held his own in reserve, which seems hardly fair.

The Court has the power to make its own rules. It is in a position to modify and amplify them in such a way as to correspond to these needs which have been made clear by experience.

When the Court is called upon to examine a case, it acts in accordance with the international law now in effect. It must apply, first, the international conventions establishing rules which have been expressly recognized by the states involved in the dispute; then international custom, taken as evidence of a general practice which is accepted as having the force of law; in the absence of rules established by written convention or by custom, the general principles of law and justice recognized by civilized nations; finally, as an auxiliary method of determining the rules of international law, judicial decisions and the doctrines of the most highly qualified commentators.

The Court cannot give judgments on the ground of equity except after the formal consent of the parties.

In this respect it departs from the idea of pure justice and approaches that of arbitration; but this is unavoidable. Although the Court provides permanent judges, and although in a certain sense it may be said to act according to a law superior to that of the parties to a case, in principle its jurisdiction remains optional. The result is that, like courts of arbitration, it has the right and even the duty of refusing to rule in cases in which international law is obscure or inadequate. For this reason it was prudent to add at the end of Article 38 of the Statute of the Court, that the Court has the right, if the parties to a case agree, to act ex aequo et bono.

Improbable as it may seem, there remains a danger that the Court might be forced to abstain from rendering a decision on the grounds that international law is inadequate; it is also to be feared that the deficiencies of international law may constitute an obstacle to the extension of the obligatory authority of the Court. To provide a remedy, the jurists who drafted the Statute of the Court recommended that the work of The Hague Conference be continued, with the purpose of defining and codifying international law. But the first Assembly of the League of Nations in 1920 held the view that this work of codification, which it was thus requested to undertake, would be premature and perilous in view of the state of public feeling immediately after the war. It was considered wiser to await a calmer time. This seems now to be approaching. Indeed, in December, 1924, the Council of the League of Nations assigned to a large committee of jurists the task of selecting from the various sections of international law those which could suitably be made the subject of study in diplomatic conferences. The result of these researches will be submitted for the approval of the Council and of the governments of all nations.

Thus, following an example set by the Pan-American Union, we have entered upon a new endeavor full of promise for the progress of international law, and consequently for the development of international justice. The effort for a progressive codification of international law needs every encouragement. In the most serious and dangerous types of disputes the law does not afford at present any rule to follow. Its deficiencies hamper the operation of justice and so endanger the peace of the world. But the work will of necessity be slow. In the meanwhile, international justice cannot make any advance save by becoming accustomed to apply to international relations that theory regarding disregard of law which has achieved such admirable results for the improvement of social relations in other domains.

The importance of these criticisms should not be exaggerated. They do not detract in any essential way from the generally favorable opinion which the achievements of the Court command, nor weaken the conviction that its establishment marks a great advance. If the Court as it exists be compared with our ideal of international justice, certainly it will be said to be far from perfection, since it does not possess a jurisdiction obligatory for all international disputes and since its legal character is not yet finally determined. But it is the type of institution best suited to the needs of the world in its present stage of development, and it opens up a broad perspective for the future.

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  • NICOLAS POLITIS, Greek Minister at Paris, former Minister of Foreign Affairs of Greece, writer on international law
  • More By Nicolas Politis