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The Twenty-Fourth Year of The World Court*

Published online by Cambridge University Press:  20 April 2017

Manley O. Hudson
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Extract

The most significant event in the field of international judicial organization during the year 1945 was the adoption of the Statute of the International Court of Justice to replace the Statute of the Permanent Court of International Justice. The event marks at once an end and a beginning—closing a chapter of history which records an astonishing success, it opens a promising prospect for the continuance of the international administration of justice along precisely the same lines. Upon the termination of the Statute of 1920 the Permanent Court will technically cease to exist; but its place will be filled by a new Court so closely resembling the old one that the chain of continuity need not be broken and the accumulated experience need not be lost. If from a technical point of view it must be said that the Court of the future will be a new Court, from a practical point of view it is more accurate to say that the same Court will go on under a new name and with but slight modifications of its basic Statute.

Type
Research Article
Information
American Journal of International Law , Volume 40 , Issue 1 , January 1946 , pp. 1 - 52
Copyright
Copyright © by the American Society of International Law 1946

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Footnotes

*

This is the twenty-fourth in the writer’s series of annual articles on the World Court, the publication of which was begun in this JOURNAL in 1923 (Vol. 17), at p. 15.

References

1 As amended in 1036, Article 23 of the Statute provided that “the Court shall remain permanently in session,” but the amendment effected little change in the preöxisting practice of sessions.

2 In 1942 the Court was officially informed of negotiations relating to the possible submission of a dispute between the United States and the Netherlands to its Chamber for Summary Procedure; but the negotiations later proved abortive.

3 In its first report for 1944 (Document C.27.M.27.1944.X, the Supervisory Commission of the League of Nations observed: “It is a source of satisfaction to the Commission that the Court has been maintained intact as an essential factor in the settlement of international disputes, and the Commission looks forward to a renewal of its activities as conditions return to normal.”

4 Archives of the Netherlands Ministry of Foreign Affairs were removed to Germany by the occupying authority.

5 In its first report for 1944 (Document C.27.No.27.1944.X), the Supervisory Commission of the League of Nations observed: “As regards the Permanent Court of International Justice, it is not an administrative organ with a staff comparable with that of the International Labour Office. There has been some criticism of the organic connection between the Court and the League of Nations in the past, and of the maintenance on the financial side of the connection hitherto existing between the Court and the central international authority. In the past, while the Court obtained its resources from contributions by Governments distributed through the League, it enjoyed autonomy in respect of expenditure. An important advantage of the system was that the Court avoided the administrative burden of collecting contributions and was able to avail itself of the services of the League Treasury in regard to such general financial matters as the custody of its balances, management of the Judges’ Pension Fund and the co-ordination of matters of common interest to the Court and other international institutions.”

6 On April 11, the Secretary of State of the United States directed the United States Consul in Geneva to inform the Registrar of the Permanent Court that the host Government suggested “that it would be helpful if the Court were to be represented during the current sessions of the Committee of Jurists meeting in Washington and at San Francisco during the forthcoming United Nations Conference”; he expressed the hope that the representatives of the Court would “hold themselves available in San Francisco for informal consultation,” and stated that “arrangements would be made for these representatives to attend all public sessions of the Conference.” The message reached the Registrar of the Court on April 13, aftei a representative of the Court had begun to attend the meetings of the Committee of Jurists in Washington; the invitation was promptly accepted by the President of the Court. Similar invitations to San Francisco were extended to the League of Nations, the International Labor Organization, the United Nations Interim Commission on Food and Agriculture, and the United Nations Relief and Rehabilitation Administration. 1 Documents of the United Nations Conference, p. 3; 5 same, pp. 189, 378.

At San Francisco a protracted discussion took place on the question of the participation of the representatives of the Court and of the other international bodies. The question of admitting the Court’s representatives to meetings of Committee 1 of Commission IV was raised at its first meeting on May 4 and at its third meeting on May 8. Not until the latter date did the Steering Committee agree to leave the various committees of the Conference free to decide the question for themselves, and on May 9 Committee 1 took a decision to invite the Court’s representatives to attend its meetings, but stipulated that they were to speak “only at the request of the Chairman.” Their first attendance was on May 10, after the work of the Committee was somewhat advanced.

7 Sub-Committee A reported on the question of old or new Court on May 22; Sub-Committees B and C reported on Articles 8–12 of the Statue on May 22 and May 25, respectively; Sub-Committee D reported on Article 36 of the Statute on May 31. 13 Documents of the Conference, pp. 524, 537, 549, 557.

8 On June 25, 1945, the Steering Committee of the Conference reported: ”The Statute of the International Court of Justice, which is to form an integral part of the Charter, was not formally considered by the Steering Committee since it had been thoroughly discussed by the United Nations Committee of Jurists, which met in Washington before this Conference, by Technical Committee 1 of Commission IV, by Commission IV, and by the Coördination Committee and the Advisory Committee of Jurists. The Steering Committee had before it on June 23 a statement of the drafting changes made in the Statute by the Coördination Committee and the Advisory Committee of Jurists. These changes were designed merely to clarify certain passages in the Statute as adopted by Commission IV and to bring the Statute as a whole into complete accord with the Charter.” 1 Documents of the Conference, p. 629.

9 13 Documents of the Conference, p. 382. The report was also published in 31 American Bar Association Journal (1946), pp. 420–425.

10 Department of State Publication No. 2349, p. 139.

11 A notable example was the Convention on the Revision of the Berlin and Brussels Acts, signed at St. Germain, September 10, 1019. 1 Hudson, , International Legislation, p. 343 Google Scholar. Despite the very guarded language of this instrument, however, the procedure followed did not escape castigation by some of the Judges when the Convention was invoked before the Permanent Court of International Justice in the Oscar Chinn Case in 1934. 3 Hudson, , World Court Reports, p. 416 Google Scholar. For other cases of modification without unanimous consent, see Tobin, H. J., Termination of Multi-partite Treaties, New York, 1933, p. 206 Google Scholar and f.

12 These included Albania, Austria, Bulgaria, Finland, Germany, Hungary, Ireland, Italy, Japan, Poland, Portugal, Roumania, Siam, Spain, Sweden, and Switzerland.

13 The States in this category included the United States of America, Costa Rica, Ecuador, Egypt, Guatemala, Honduras, Iraq, Lebanon, Liberia, Mexico, Philippine Commonwealth, Saudi Arabia, Syria, the Union of Soviet Socialist Republics, Turkey, and others.

14 For example, Lebanon, Philippine Commonwealth, Syria, and others. Nor is it clear that an ex-Member of the League of Nations could become a party to the Protocol of December 16, 1920.

15 13 Documents of the Conference, p. 383. As fifty-two States became parties to the Statute of the Permanent Court, the figures given in the edited Report are inexact.

16 At San Francisco the Cuban delegation submitted a draft of a statute of “a new Permanent Court of International Justice.” 3 Documents of the Conference, p. 516.

17 A new election of judges would have been held in any event—indeed it was six years overdue.

18 Proposal 12 of the International Law cf the Future suggested that the Permanent Court of International Justice should be “the chief judicial organ of the Community of States,” See this Journal, Vol. 38 (1944), Supplement, p. 59.

19 The Basdevant report (Jurist 61, revised, G/49) stated: “A Member of the Committee has called the attention of the latter to the importance which exact execution of the decisions of the Court has for the reign of law and the maintenance of peace, and he wondered whether the Statute ought not to contain a provision concerning the proper means for assuring this effect. The importance of this suggestion was not contested, but the remark was made that It was not the business of the Court itself to ensure the execution of its decisions, that the matter concerns rather the Security Council, and that Article 13, paragraph 4, of the Covenant had referred in this connection to the Council of the League of Nations. A provision of this nature is not consequently to appear in the Statute, but the attention of the San Francisco Conference is to be called to the great importance connected with formulating rules on this point in the Charter of The United Nations.”

20 In a dispute concerning the execution of an award in the Rhodope Forests Case in 1984. League of Nations, Official Journal, 1934, pp. 1432–1433, 1477.

21 Article 13 of the Covenant as amended provides: “The Members of the League agree that they will carry out in full good faith any award or decision that may be rendered, and that they will not resort to war against a Member of the League which complies therewith. In the event of any failure to carry out such an award or decision, the Council shall propose what steps should be taken to give effect thereto.”

22 On the history of this question, see Hudson, , Permanent Court of International Justice, 1920–1942, pp. 488–494 Google Scholar.

23 In the International Law of the Future, it was proposed (No. 18) that an Executive Council should have power “by majority vote, to request an advisory opinion on any legal question ” connected with a dispute.

24 See the communication addressed by the Acting Director of the International Labor Office to the Secretary-General of the League of Nations on June 2,1944: League of Nations Document, C.20.M.20.1944.V. See also 24 International Labor Office Official Bulletin, No. 2 (Dec. 1, 1944), pp. 194–196.

25 Though Article 111 refers to the versions as “texts,” it would seem clear that there is but a single text, of which each version forms only a part. Strictness of vocabulary on this point might serve to facilitate interpretation.

26 “The amendments to the 1920 text proposed in 1929 were brought into force in 1936. The 1936 text as reproduced here is taken from the Publications of the Court, Series D, No. 1 (3d ed.); slight variations appear in the fourth edition of that publication.

27 In Mr. Stettinius’ report to the President it is stated (p. 139) that “as a working rule” the Committee of Jurists “left well enough alone, making changes in the text under which the Court had operated for twenty-three years only where there was strong reason for doing so.” Yet draftsmen called upon to review the work of other draftsmen are always tempted to paint the lily, and it is demanding too much to expect that they will never yield to the temptation. A thorough overhauling of the text of the Statute might have led to many more changes for the improvement of its linguistic elegance.

28 See the bibliographies published in successive numbers of Series E of the Publications of the Permanent Court.

29 See also Jessup, Philip C., “The International Court of Justice of the United Nations,” 21 Foreign Policy Reports, No. 11 (August 15, 1945 Google Scholar).

30 The report of the Inter-Allied Committee of Jurists, published on February 10, 1944, was reprinted in this Journal, Vol. 39 (1945), Supplement, pp. 1–42.

31 On this question, see Hudson, Permanent Court of International Justice, 1920–1942, pp. 183, 367.

32 But see Jeesup, Philip C., in 21 Foreign Policy Reports, Number 11, p. 164 Google Scholar.

33 3 Documents of the Conference, p. 516.

34 See Hudson, , Permanent Court of International Justice, 1920–1942, p. 337 Google Scholar note.

35 See Hudson, , Permanent Court of International Justice, 1920–1942, pp. 348–349 Google Scholar.

36 League of Nations Document, C.20.M.20.1944.V.

37 For an analysis of these debates, see Lawrence, Preuss, “The International Court and the Problem of Compulsory Jurisdiction,” in 13 Department of State Bulletin, No. 327 (September 30, 1945), pp. 471–478 Google Scholar.

38 See Hudson, , Permanent Court of International Justice, 1920–1942, p. 467 Google Scholar.

39 It is notable that all of these States are, or have been, Members of the League of Nations. Costa Rica, Ecuador, Egypt, Guatemala, Liberia, and Mexico had not become parties to the Statute of the Permanent Court, but Bolivia, Cuba, El Salvador, Greece, Iran, Panama, Paraguay, and Uruguay had made declarations under Article 36 accepting the compulsory jurisdiction of the Permanent Court.

40 See 1 Documents of the Conference, p. 615.

41 On the practice in the past see Hudson, Permanent Court of International Justice, 1920–1942, pp. 467–472.

42 On December 27, 1945, ratifications of the Charter had been deposited by all of these States.

43 Documents of the Conference, p. 627.

44 Some question may arise where States in both categories are parties to certain instruments, e.g., the Constitution of the International Labor Organization.

45 See Hudson, , Permanent Court of International Justice, 1920–1942, pp. 603–605 Google Scholar.

46 In the Meuse Case, Series A/B, No. 70, the Permanent Court applied a principle of equity without any agreement between the parties. Yet before the Senate Committee on Foreign Relations, Mr. Hackworth interpreted the provision to mean that “the Court may apply the principles of equity in any case where the parties to the ease agree to have those principles applied.” Hearings on the Charter, p. 340.

47 See Hudson, , Permanent Court of International Justice, 1920–1942, p. 199 Google Scholar, note 84.

48 Series A/B, No. 80.

49 See Hudson, , Permanent Court of International Jutice, 1920–1942, pp. 392–394 Google Scholar.

50 When the United States proposed to become a party to the Statute of the Permanent Court in 1926, it stipulated that the Statute should not be amended without its consent.

51 When in 1938 Paraguay attempted to denounce its 1933 declaration under Article 36 of the Statute, accepting the Court’s jurisdiction without limit of time, reservations as to the legal effect of such action were made by eleven States.

52 See Hudson, , Permanent Court of International Justice, 1920–1942, p. 128 Google Scholar.

53 Same, pp. 129, 217–218.

54 Document 1074, I/2/76.

55 Document 1187, I/13.

56 1 Documents of the Conference, pp. 616–620. Cf., U. S. Senate Hearings on the Charter, pp. 232, 236, 324.

57 A disposition to question this conclusion was manifested in certain quarters in London.

58 The Executive Committee later recommended to the Preparatory Commission that this action be approved, and approval was voted by the latter body.

59 Telegraphic summaries of the communications were also despatched on September 12.

60 13 Department of State Bulletin, No. 334 (Nov. 18, 1945), p. 806.

61 League of Nations Document C.103.M.103.1945.

1a In the League of Nations Official Journal, Special Supplement No. 193, published in 1944, neither the Argentine Republic nor Nicaragua is listed as a party to the Statute of 1920, however.

2a The asterisks indicate that no ratification of the 1920 Statute was deposited, though the State became a signatory to the 1920 Protocol.

3a Estonia, Latvia and Lithuania also became parties to the 1920 Statute.