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The Nature of the Advisory Opinions of the Permanent Court of International Justice

Published online by Cambridge University Press:  12 April 2017

Leland M. Goodrich
Leland M. Goodrich*
Affiliation:
Brown University
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Extract

Though general interest in the advisory opinions of the Permanent Court of International Justice has waned of late because of the decline in the Court’s advisory activity and the dormancy of the question of American adherence, there are questions relating to the advisory work of the Court which still command the interest of the serious student. On January 26, 1937, the Council of the League referred to the special committee set up to study the application of the principles of the Covenant the question of the conditions of voting requests for advisory opinions. As appears from the observations of governments as well as from the discussions in the Council and Assembly, the question of the vote necessary to a request for an advisory opinion raises the larger question of the nature of advisory opinions.

Type
Research Article
Information
American Journal of International Law , Volume 32 , Issue 4 , October 1938 , pp. 738 - 758
Copyright
Copyright © by the American Society of International Law 1938

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References

1 League of Nations Official Journal, February, 1937, pp. 77–79. This question was first raised by the Assembly in a resolution adopted Sept. 24, 1928, inviting the Council to make a study of the question whether an opinion might be requested by a simple majority vote. The study was not made, and at its 16th session, on Sept. 28, 1935, the Assembly adopted a resolution reaffirming its invitation. The Council invited the members of the League and the International Labor Organization to express their views, and on the basis of the diversity of opinion expressed, it was decided to refer the matter to the special committee. Publications of the Permanent Court of International Justice, Series E, No. 12, pp. 117–127; No. 13, pp. 79–82; League of Nations Official Journal, supra, pp. 77–79, 170–186.

2 The Permanent Court of International Justice: A Treatise (New York, 1934), p. 455.

3 Recueil des Cours, Académie de Droit International, 1929, I, p. 23 et seq.

4 League of Nations Official Journal, Special Supplement, No. 65, p. 47.

5 P.C.I.J., Series E, No. 4, p. 76. This conclusion is accepted by M. Negulesco, who distinguishes between an opinion on a “point” and an opinion on a “différend.” “L’Evolution de la Procédure des Avis Consultatifs de la Cour Permanente de Justice Internationale,” in Académie de Droit International, Recueil des Cours, 1936, III, pp. 64–80.

6 Hudson, op. cit., pp. 100–101. David Hunter Miller, The Drafting of the Covenant, gives the evidence. In fact, the British delegation, which was largely responsible for the drafting of the sentence, prepared a note which explained that “the opinion of the Court will have no force or effect unless confirmed by the Report of the Council or Assembly.” Miller, op. cit., I, p. 416.

7 In the discussions of the Advisory Committee of Jurists, Mr. Root took, the view that it was a violation of all juridical principles for the Court to give an advisory opinion with reference to an existing dispute. Advisory Committee of Jurists, Procès-verbaux of the Proceedings, pp. 584–585. He seems to have been convinced, however, that the Covenant left no choice in the matter. M. de Lapradelle expressed the view that in actual practice judgments and advisory opinions of the Court in disputes would have the same force. Ibid., p. 225.

8 Art. 36, par. 3, provided for the assimilation of advisory to contentious procedure in the case of an opinion sought on a question forming the subject of an existing dispute. Art. 36, par. 2, provided that on a question not relating to an existing dispute, the opinion should be given by a special commission, so as not to bind the Court. Ibid., pp. 730–732.

9 The subcommittee of the Third Committee of the First Assembly recommended the elimination of the provisions on the grounds that opinions should be given by the same quorum of judges as required for judgments, that there were certain practical difficulties involved in making the proposed distinction, and that in any case this was a matter of procedure to be regulated by the Rules of the Court. Records of the First Assembly, Meetings of the Committees, I, p. 534.

10 Judge Moore, in his memorandum, argued that there should be no special regulation concerning advisory opinions for the reasons that it was incompatible with the general character and purpose of the Court to require it to give advice which could be rejected, that Art. 14 was permissive, and that it was not desirable to encourage requeste by making any special provision for them. P.C.I.J., Series D, No. 2, pp. 383–398.

11 Ibid., p. 98.

12 Ibid., p. 160.

13 Ibid.

14 This was done in the cases of Eastern Carelia, German Settlers in Poland, Acquisition of Polish Nationality, Exchange of Greek and Turkish Populations, and Mosul. This practice was questioned by Poland in the case of German Settlers in Poland, but the Court held that the enumeration in Art. 73 was not exhaustive. P.C.I.J., Series E., No. 1, p. 263.

15 The Registrar informed members of the League that “having regard to the nature of the questions put, and their possible bearing on the interpretation of the Covenant, the Court would no doubt be prepared favorably to receive an application by any Member to be allowed to furnish information calculated to throw light on the questions at issue.” The notifications to Great Britain and Turkey were further based on the principle “in accordance with which a question referred to the Court for advisory opinion is communicated to governments likely to be able to supply information in regard to it.” P.C.I.J., Series B, No. 12, pp. 7–8.

16 It took the view that these articles applied only to contentious procedure, though it indicated its willingness to hear the Rumanian representative under Art. 73 of the Rules. P.C.I.J., Series E, No. 1, p. 252; Series C, No. 3, Vol. III, pp. 1089–1090.

17 P.C.I.J., Series D, No. 2, addendum, p. 315.

18 Ibid., p. 226.

19 Ibid., pp. 226–227.

20 P.C.I.J., Series E, No. 5, p. 29. In the Mosul affair, it would appear superficially that the Court had refused to follow this principle. It must be borne in mind, however, that in that case the question related solely to the competence and jurisdiction of the Council, and that the Turkish Government had given certain information.

21 P.C.I.J., Series E, No. 3, pp. 222–227. Provision was made for a “special and direct communication” to any member of the League or state or international organization considered “as likely to be able to furnish information on the question,” and in the case of a state or member not so notified, for an application to be heard which the Court would decide. This was considered by the Court as adapting the principles of Arts. 62 and 63 of the Statute to the requirements of advisory procedure. P.C.I.J., Series D, No. 2, addendum, p. 225.

22 P.C.I.J., Series E, No. 4, pp. 72–73.

23 The first part of the fifth Senate reservation provided that “the Court shall not render any advisory opinion except publicly after due notice to all States adhering to the Court and to all interested States and after public hearing or opportunity for hearing given to any State concerned.” U. S. Sen. Doc. No. 45, 69th Cong., 1st Sess., p. 2. While the 1926 Conference of Signatories was of the opinion that this matter was covered by the opinion of the Court in the Eastern Carelia case and by Arts. 72–74 of the Rules of the Court, the Government of the United States took the position that these were “subject to change at any time.” Letter from the Government of the United States of America to the Secretary-General of the League, Feb. 19, 1929, League of Nations Doc. C.514.M.173.1929.V, p. 69. The 1929 Committee of Jurists recommended the transfer to the Statute of the provisions of the Bules in question “in order to give them a permanent character, which seems particularly desirable today in view of the special circumstances attending the possible accession of the United States to the Protocol of Signature of the Statute of the Court.” Ibid., C.142.M.52. 1929. V, p. 9. The discussions of the 1929 Committee of Jurists and of the 1929 Conference of Signatories evidence the general desire of those participating to make it possible for the United States to accede to the Statute, but there is nothing to indicate that in the absence of this consideration there would have been any serious opposition to the addition of the proposed articles to the Statute as the practice of the Court in assimilating its advisory to its contentious procedure had come to be generally accepted as fully and firmly established.

24 P.C.I. J., Series D, No. 2, 3rd addendum, pp. 835–837.

25 Ibid., pp. 782, 792, et seq.

26 Ibid., p. 1022.

27 Without attempting an exhaustive statement of the extent to which this assimilation is carried, attention is called to the following: Full publicity for requests (Art. 66 of the Statute); opportunity to be heard (Art. 66 of the Statute); right to national judge (Art. 83 of the Rules); written and oral proceedings (Arts. 66 and 68 of the Statute; Art. 82 of the Rules); opinions given by full Court, after secret deliberation and by majority vote (Arts. 82 and 84 of Rules); opinions read in open Court after notice given (Art. 67 of Statute); Court may refuse to give an opinion (application of Art. 36 of Statute by analogy). For the texts of the Statute and Rules of the Court now in force, see P.C.I. J., Series D, No. 1, 3rd ed.

28 Report of the Registrar, June, 1933, P.C.I.J., Series D, No. 2, 3rd addendum, p. 838.

29 In its judgment in the Mavrommatis Palestine Concessions case, the Court defined a dispute “as a disagreement on a point of law or fact, a conflict of legal views or interests between two persons.” P.C.I.J., Series A, No. 2, p. 11. As the term is used here, it is necessary to add that the dispute must be between states and must involve a conflict of alleged state rights and interests.

30 P.C.I.J., Series E, No. 7, p. 303.

31 Nos. 4 (4) Nationality Decrees in Tunis and Morocco; 5 (7) Status of Eastern Carelia; 8 (9) Polish-Czechoslovakian Frontier (question of Jaworzina); 9 (13) Monastery of Saint-Naoum; 10 (15) Exchange of Greek and Turkish Populations; 11 (16) Polish Postal Service in Danzig; 12 (20) Frontier between Turkey and Iraq (Mosul question); 14 (23) Jurisdiction of the European Commission of the Danube; 15 (29) Jurisdiction of the Danzig Courts; 16 (35) Interpretation of the Greco-Turkish Agreement of Dec. 1, 1926; 17 (37) Greco-Bulgarian “Communities”; 19 (40) Access to German Minority Schools in Polish Upper Silesia; 20(41) Customs Régime between Germany and Austria; 21 (39) Railway Traffic between Lithuania and Poland; 22 (44) Access to and Anchorage in the Port of Danzig for Polish War Vessels; 23 (42) Treatment of Polish Nationals at Danzig; and 24 (45) Caphandaris-Molloff Agreement of Dec. 9, 1927. The first numbers given indicate the chronological order in which the opinions of the Court have been given and correspond to the numbers given by Hudson, op. cit., p. 457 et seq., as far as his list goes. The numbers in parentheses are the numbers which the cases have in the General List as given in the Annual Report for 1936–37. P.C.I.J., Series E, No. 13, pp. 92–107.

32 Nos. 1 (2) Nomination of the Workers’ Delegate to the International Labor Conference; 2 (1) International Labor Organization and the Conditions of Agricultural Labor; 3 (3) International Labor Organization and the Methods of Agricultural Production; 6 (6) German Settlers in Poland; 7 (8) Acquisition of Polish Nationality; 13 (21) The International Labor Organization and the Personal Work of the Employer; 18 (38) Danzig and the International Labor Organization; 25 (48) Employment of Women during the Night; 26 (62) Minority Schools in Albania; and 27 (63) Constitution of the Free City of Danzig.

33 P.C.I.J., Series C, No. 14, I, p. 9.

34 P.C.I.J., Series E, No. 11, p. 151. Apparently the sole question considered was whether there was a dispute between Albania and Greece. P.C.I.J., Series C, No. 76, p. 205.

35 Nos. 4, 5, 8, 9, 11, 12, 15, 19, 20, 21, 22, 23, and 24. See note 31, supra, for further description.

36 No. 10 (The Mixed Commission set up under Art. 2 of the Convention concerning the Exchange of Greek and Turkish Populations, signed at Lausanne, Jan. 30, 1923); No. 14 (Advisory and Technical Committee for Communications and Transit); No. 16 (same as No. 10); and No. 17 (Greco-Bulgarian Mixed Commission provided for under the Greco-Buigarian Convention of Nov. 27, 1919).

37 No. 6 (Guarantee of Minority Rights under Polish Minorities Treaty of June 28, 1919); No. 17 (same); No. 26 (same under Albanian Declaration of Oct. 2, 1921); and No. 27 (Guarantee of Special Régime for the Free City of Danzig under Article 103 of the Treaty of Versailles).

38 Nos. 1, 2, 3, 13, 18, and 25. See note 32, supra, for further description.

39 Nos. 2 and 3.

40 No. 3 (Competence of the International Labor Organization—Agricultural Production).

41 As, for example, in Nos. 1, 4, 5, 6, and 7.

42 As, for example, in Nos. 2, 3, 10, and 13. In the case of No. 1, the factual situation wae used “solely in order to fix clearly the state of facts to which the interpretation has application.” P.C.I.J., Series В, No. 1, p. 17.

43 P.C.I.J., Series B, No. 5, p. 28.

44 Nos. 6. 7. 26, and 27.

45 Nos. 6. 7. and 26.

46 For information in summarized form on the action taken, see Hudson, , The Permanent Court of International Justice : A Treatise (1934), pp. 457–466.Google Scholar

47 As it did in Nos. 1, 2 (in effect), 3 (in effect), 10, 13, 14, 16, 17, 18 and 25.

48 Of course, in Nos. 2 and 3 the questions had been raised by the French Government directly, but as they related to the competence of the International Labor Organization, the opinions were communicated to the Director of the International Labor Organization.

49 In No. 4 (Nationality Decrees in Tunis and Morocco), the British and French Governments had agreed that if the opinion was favorable to the British contention, the dispute would be referred to arbitration or judicial settlement. League of Nations Official Journal, 1922, pp. 1206–1207. In No. 20 (Austro-German Customs Union), the German and Austrian Governments had already renounced the intention to pursue the project at the time the opinion was given. League of Nations Official Journal, 1931, pp. 2185–2190.

50 No, 8 (Polish-Czechoslovakian Frontier); No. 9 (Monastery of St.-Naoum); and No. 21 (Railway Traffic between Lithuania and Poland). In No. 21, the Council took note of the opinion. League of Nations Official Journal, 1932, p. 481.

51 League of Nations Official Journal, 1923, pp. 1335–1337.

52 Ibid., p. 1337.

53 Though the final settlement reached in the German Settlers in Poland case may not have provided full compensation for those illegally expelled from their properties, it was based on full acceptance on points of law of the opinion of the Court. See League of Nations Official Journal, 1924, pp. 359–366, 548, 926–927. The question of the nature of the action to be taken by the Council to give effect to Poland’s legal obligations was not before the Court. In the Acquisition of Polish Nationality case, the opinion was adopted by the Council, though the final settlement reached involved elements of compromise. Ibid., 1923, pp. 1333–1335; League of Nations Treaty Series, XXXII (1925), pp. 333–353; Hudson, op. cit., p. 459. Opinion No. 19 (Access to German Minority Schools in Polish Upper Silesia) was expressly accepted by the Council (League of Nations Official Journal, 1931, pp. 1151, 2263), and in the case of No. 26 (Minority Schools in Albania), acceptance was implicit in the action taken (ibid., 1935, pp. 626–627, 1185–1186; 1936, pp. 115–117).

54 For No. 11 (Polish Postal Service in Danzig), see League of Nations Official Journal, 1925, pp. 882–887, 1371–1377; No. 15 (Jurisdiction of the Danzig Courts), see ibid., 1928, p. 433; No. 22 (Access to the Port of Danzig for Polish War Vessels), see ibid., 1932, pp. 488–489; No. 23 (Treatment of Polish Nationals in Danzig), see ibid., 1932, pp. 522–523; No. 27 (Constitution of the Free City of Danzig), see ibid., 1936, pp. 121–125.

55 Opinion No. 12 (Mosul Question) was adopted by the Council by unanimous vote, excluding the parties to the dispute. League of Nations Official Journal, 1926, pp. 120–129. The Council was not required to take action on Opinion No. 24 (Caphaudaris-Molloff Agreement) beyond taking note of the opinion, because of the conclusion of the Athens Agreement of Nov. 11, 1931. Ibid., 1932, pp. 1185–1187.

56 P.C.I.J., Series E, No. 1, p. 188. The opinion has guided governments in making appointments under Art. 389 of the Statute, and Conferences in examining credentials. The International Labor Organization: The First Decade (1931), p. 59.

57 P.C.I.J., Series E, No. 1, p. 193.

58 The International Labor Organization: The First Decade, p. 47.

59 P.C.I.J., Series E, No. 10, pp. 128–129.

60 Ladas, , The Exchange of Minorities: Bulgaria, Greece and Turkey (1932), pp. 408–409.Google Scholar

61 Ibid., p. 539.

62 Report of the Commission, December, 1931, in P.C.I.J., Series E, No. 8, p. 213.

63 Ibid., pp. 213–214. Compare with P.C.I.J., Series B, No. 17, especially pp. 33–35.

64 League of Nations Official Journal, 1926, p. 128.

65 League of Nations Treaty Series, LXIV (1927), pp. 380–395.

66 P.C.I. J., Series B, No. 5, pp. 12–14.

67 League of Nations Official Journal, 1923, pp. 934–935.

68 Ibid., pp. 1334–1335.

69 Ibid., 1925, pp. 1377–1382.

70 Ibid., 1927, pp. 151–152.

71 No. 4 (Tunis-Morocco Nationality Decrees) and No. 8 (Jaworzina Boundary). In No. 8 the undertaking was not as express as in No. 4, but seems nevertheless to have been given

72 “League of Nations Official Journal, 1923, p. 1333; 1924, p. 359.

73 Ibid., 1923, pp. 1334–1335.

74 League of Nations Treaty Series, XXXII (1925), p. 331 et seg.; Hudson, op. cit., p. 459.

75 League of Nations Official Journal, 1928, pp. 399–400.

76 P.C.I.J., Series E, No. 9, pp. 115–117.

77 League of Nations Official Journal, 1924, pp. 345–348, 356–358.

78 Ibid., pp. 1369–1372. The line fixed by decision of the Conference of Ambassadors in accordance with the opinion was later modified by agreement of the parties so as to give the monastery to Yugoslavia, following the invocation by Yugoslavia of a new fact of a decisive nature. P.C.I.J., Series E, No. 2, pp. 137–138.

79 Opinion No. 15 was accepted in advance of Council consideration, and an agreement was signed in conformity with the opinion. League of Nations Official Journal, 1928, p. 433. The conclusions of No. 23 were incorporated into the agreement of Nov. 26, 1932. P.C.I. J., Series E, No. 9, p. 118.

80 League of Nations Official Journal, 1931, p. 2263.

81 Ibid., 1932, pp. 1185–1187.

82 Ibid., 1923, p. 608.

83 Ibid., pp. 904–908.

84 Ibid., 1928, pp. 424–425.

85 Ibid., 1923, pp. 1339–1340.

86 Ibid., 1927, pp. 1473–1474.

87 Ibid., 1932, pp. 507–508.

88 Borchard, Declaratory Judgments (1934), p. 51.

89 Frankfurter, , “Advisory Opinions,” in Encyclopedia of the Social Sciences, Vol. I, pp. 475–476.Google Scholar

90 Ibid., pp. 476–477; Hudson, The Permanent Court of International Justice (1925), pp. 136–152; and Hudson, “Les avis consultatifs de la Cour Permanentede Justice Internationale,” Académie de Droit International, Recueil des Cours, 1925, III, pp. 382–400.

91 Frankfurter, loc. cit., pp. 477–478.

92 Compare, for example, the questions submitted to the Court for judgment in the cases of Minorities in Upper Silesia, Statute of Memel, and Jurisdiction of the Oder Commission, with the questions submitted for advisory opinions in the cases of German Minorities Schools in Upper Silesia, Jurisdiction of the European Commission of the Danube, and the numerous Danzig cases.

93 See, for example, the questions submitted to the decision of the Hague Tribunal in the Japanese House Tax, the Muscat Dhows, and the North Atlantic Fisheries arbitrations.

94 De Visscher, , “Les avis consultatifs de la Cour permanente de Justice internationale,” Académie de Droit International, Recueil des Cours, 1929, 1, p. 60.Google Scholar

95 Borchard, Declaratory Judgments, pp. 23–24.

96 The German Settlers in Poland, Acquisition of Polish Nationality, and Minority Schools in Albania cases, for example.

97 The agreement to refer may be reached by the parties to the dispute directly, the Council being asked to act as intermediary for the parties themselves in referring the question to the Court. In their report to the Institut de Droit International at Stockholm in 1928, MM. de Lapradelle and Negulesco suggested the use of the term “arbitrage consultatif to describe this procedure. Annuaire de l’Institut de Droit International, 1928, p. 453. At its 1937 session, the Institut adopted a resolution recommending that where states do not find it possible to submit a dispute to the Court by contentious procedure, they bring it before the Council requesting that the Court be asked to give an opinion on the legal points involved. Revue de Droit International et de Législation Comparée, 1937, p. 830.