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“A Springboard for the Future”: A Historical Examination of Britain’s Role in Shaping the Optional Clause of the Permanent Court of International Justice

Published online by Cambridge University Press:  27 February 2017

Lorna Lloyd
Lorna Lloyd*
Affiliation:
University of Keele, England
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Extract

The Permanent Court of International Justice (PCIJ) was established in 1922. Article 36, paragraph 2 of its Statute reads:

The Members of the League of Nations and the States mentioned in the Annex to the Covenant may, either when signing or ratifying the protocol to which the present Statute is adjoined, or at a later moment, declare that they recognise 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:

  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 and extent of the reparation to be made for the breach of an international obligation.

Type
Research Article
Information
American Journal of International Law , Volume 79 , Issue 1 , January 1985 , pp. 28 - 51
Copyright
Copyright © American Society of International Law 1985

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References

1 Statute of the Permanent Court of International Justice, in 1 League of Nations, Minutes of the Council [hereinafter cited as Minutes of the Council], Sess. 11, Ann. 138a, at 137 (1920).

2 Optional Clause, id.

3 On Jan. 10, 1920, when the Treaty of Versailles entered into force.

4 Apart from procedural matters, including the appointment of committees to investigate particular matters when a majority vote was required. A majority vote of the Assembly and the concurrence of the Council were required for a report on a dispute under Article 15 of the Covenant to have the same force as a unanimous report by the Council; for an increase in the nonpermanent membership of the League Council; for the admission of new League members that would have permanent seats on the Council; and for the appointment of the Secretary-General (other than Drummond). A two-thirds majority was required for the admission of new members and for fixing the rules dealing with the election of nonpermanent members of the Council. Amendments to the Covenant entered into force when ratified by the members of the Council and two-thirds of the members of the Assembly.

5 League of Nations Secretariat, Ten Years of World Co-Operation 11 (1930). See also id. at 11–12 and Arts. 3, 5, 19 and 26 of the Covenant.

6 The number of nonpermanent members was increased to six in 1922 and nine in 1926. The latter increase was accompanied by a change in the rules to allow for the reelection of nonpermanent members, which created a category known as “semi-permanent members.” See Carlton, , The League Council Crisis of 1926, 11 Hist. J. 354 et seq. (1968)Google Scholar.

7 Except on procedural issues, including the appointment of committees to investigate particular matters. Under Article 15 of the Covenant, the vote of a party to a dispute could not detract from an otherwise unanimous report. The Council could issue a majority report on a dispute, but this did not deprive members of “the right to take such actions as they shall consider necessary for the maintenance of right and justice.”

8 Under Article 14 of the Covenant. See League of Nations Secretariat, supra note 4, at 13–14.

9 These were: Akidzuki (Japan), Altamira (Spain), Bevilaqua (Brazil), Descamps (Belgium), Drago (Argentina), Fadda (Italy), Fromageot (France), Vesnitch (Kingdom of Serbs, Croats and Slovenes [Yugoslavia]), Loder (the Netherlands), Phillimore (Great Britain) and Root (the United States). The members of the League Secretariat serving the committee were to be Nippold and Winiarsky. Council Doc. 39, UK Public Record Office [hereinafter cited as PRO] General 195759/1362 FO 371/4313; PRO General 193165/1362 FO 371/4312; 1 League of Nations Official Journal [hereinafter cited as LNOJ] 122–23 (1920); 1 Minutes of the Council, Sess. 6, Ann. 62 (1920); Permanent Court of International Justice, Advisory Committee of Jurists, Procès-Verbaux and Report, June 16-July 12, 1920 [hereinafter cited as Procès-Verbaux], Preface (1920); 1 Minutes of the Council, Sess. 2 and Ann. 5 (1920); and PRO General 192113/1362 FO 371/4312. See also Report by Leon Bourgeois to the Council, Feb. 13, 1920, 1 LNOJ at 33–37 and PRO General 192113/1362 supra. The second meeting of the League Organisation Committee, in June 1919, had instructed the then acting Secretary-General to prepare such a list of jurists, but the committee did not meet again. See Kluyver, C., Documents on the League of Nations 256, 283 (1920), cited in Hudson, M., The Permanent Court of International Justice: A Treatise 114 (1943)Google Scholar.

10 The Committee of Jurists finally contained five nationals of the great powers (the United States, Britain, Japan, France and Italy) and three nationals of former European neutrals (Norway, the Netherlands and Sweden), with the complement being made up by a Brazilian and a Belgian.

The committee, as constituted, was composed of: Baron Descamps (Belgium), Chairman; Dr. Loder (the Netherlands), Vice-Chairman; Mineichiro Adatci (Japan); Rafael Altamira (Spain); Raoul Fernandez (Brazil), who substituted for Clovis Bevilaqua (Brazil) until the 25th meeting when he formally replaced Bevilaqua; Arturo Ricci-Busatti (Italy); Albert de Lapradelle (France); Francis Hagerup (Norway); Lord Phillimore (Great Britain); and Elihu Root (the United States). Léon Bourgeois attended the meetings of the committee as the representative of the Council of the League, but he did not participate in the proceedings. Anzilotti (Under Secretary-General of the League of Nations) acted as Secretary-General of the committee, with Äke Hammarskjöld (a member of the Legal Section of the League Secretariat and future Registrar of the PCIJ) as his deputy. M. Hudson, supra note 9, at 115–16; and PRO General 203188/25388 FO 371/4311.

11 The relevant articles (Articles 33 and 34) stated:

Article 33

When a dispute has arisen between States, and it has been found impossible to settle it by diplomatic means, and no agreement has been made to choose another jurisdiction, the party complaining may bring the case before the Court. The Court shall, first of all, decide whether the preceding conditions have been complied with; if so, it shall hear and determine the dispute according to the terms and within the limits of the next Article.

Article 34

Between States which are Members of the League of Nations, the Court shall have jurisdiction (and this without any special convention giving it jurisdiction) to hear and determine cases of a legal nature, concerning:

  • (a)

    (a) The interpretation of a treaty;

  • (b)

    (b) Any question of international law;

  • (c)

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

  • (d)

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

  • (e)

    (e) The interpretation of a sentence passed by the Court.

The Court shall also take cognisance of all disputes of any kind which may be submitted to it by a general or particular convention between the parties.

In the event of a dispute as to whether a certain case comes within any of the categories above mentioned, the matter shall be settled by the decision of the Court.

PCIJ Draft Scheme, LNOJ Spec. Supp. 2, at 9–10 (1920).

12 Report by de Lapradelle, PRO W 320/241/98 FO 371/5480; Procès-Verbaux, supra note 9, at 727.

13 Procès-Verbaux, supra note 9, at 225, 260.

14 Id. at 541–43.

15 Article 13 had qualified the obligation to submit to arbitration by the inclusion of the word “generally.” Its second paragraph enumerated categories of legal disputes that were “declared to be among those which are generally suitable for submission to arbitration.” This categorization was eventually adopted in Article 36 of the Statute as being those disputes covered by the Optional Clause. Article 14, Adatci said, was “deliberately intended to limit the competence of the Court to cases submitted to it by the parties,” and the League Council, being bound by the Covenant, could not delegate powers other than those granted to it under the Covenant. See id.

16 A former President of the International Law Association and Lord Justice of Appeal, Phillimore had chaired the Phillimore Committee, which produced the first official British draft Covenant.

17 When Descamps was elected Chairman of the committee, and Loder elected Vice- Chairman, Phillimore had feared that this might mean that his “propositions may lose weight.” Telegram from Lord Phillimore, The Hague, June 16, 1920, PRO General 204150/201505 FO 371/3855. However, by allying himself with Root and getting the committee to take his draft as its working draft, he was able to ensure that this apprehension was unfounded. He submitted a draft article stating that “either of the parties may require the Court to exercise jurisdiction without any further assent on the part of the other party.” He argued (in common with Descamps and Root) that the “Covenant is a law for the League of Nations; but the convention establishing the Court would be another.” Procès-Verbaux, supra note 9, at 235–36. In an explanatory note, he argued that the members of the League “can give the Court any jurisdiction which they please, though it was not given in the original Covenant.” See id., Ann. 2, at 252, for Phillimore’s draft article and his explanatory note; id., Ann. 5, at 277–78, for his amendment to Descamps’s transactional proposal; and id., Ann. 4, at 547–48 for a later draft by Phillimore and Root.

18 The PCA consisted of a bureau and a list of jurists who were available to act as arbitrators and whose governments had nominated them to serve in this capacity. The list was kept at the Peace Palace at The Hague.

19 Nicolas Politis, the Greek diplomat and lawyer, calculated that between 1814 and 1914, arbitration had been extended by 70 special or compromissory clauses and 130 treaties; and that by 1914 there existed 139 arbitration treaties and 154 clauses were in operation between 47 states. Sir James Headlam-Morley (Historical Adviser to the Foreign Office) reported the calculations of two other writers on the number of arbitration treaties concluded between 1784 and 1914: according to one, there were 130, and according to the other, over 200. See Politis, N., The New Aspects of International Law (1928)Google Scholar; Memorandum Respecting the British Government and Arbitration. An Historical Review, Jan. 27, 1928, PRO W 748/ 28/98 FO 411/7, reprinted in Headlam-Morley, J., Studies In Diplomatic History (1930)Google Scholar.

20 Hereinafter referred to as the vital interests formula.

21 This was because of the Senate’s jealousy of its prerogatives in foreign affairs. In 1923 the then Secretary of State, Charles Hughes, summarized the record up to that date as follows: The 1897 Olney-Pauncefote Arbitration Treaty had been rejected by the Senate despite the firm support it had received from both the Cleveland administration, which had negotiated it, and the McKinley administration. The 12 Hay Treaties of 1904 had included the vital interests formula; had limited arbitrations to differences of a legal nature or of treaty interpretation that it had not been possible to settle by diplomacy; and had excluded disputes involving third parties. This was not enough for the Senate, which had amended the words “special agreement” in the Treaty (i.e., the compromis, in which the parties to an arbitration defined the nature of the dispute and set out the law that the arbitrators were to apply, as well as nominating the arbitrators) to “special Treaty.” Under the American Constitution, this wording automatically required the Senate’s approval of every arbitration. The administration let the treaties fall through rather than accept the amendment. When Elihu Root negotiated his Arbitration Treaties, he took account of Hay’s failure by requiring that the compromis be made by the President with the advice and consent of the Senate. Three years later, Taft’s Arbitration Treaty ran aground after numerous difficulties. The Senate struck out a provision that in the event of controversy over the justiciability of a dispute, it should be submitted to a joint high commission, as “an unconstitutional delegation of power.” It inserted reservations of disputes involving the admission of aliens, territorial integrity, alleged indebtedness or monied obligation by any state and the Monroe Doctrine. These were unacceptable to the administration, which left the Treaty unratified. “In the light of this record,” Hughes concluded, “it would seem to be entirely clear that until the Senate changes its attitude it would be a waste of effort for the President to attempt to negotiate treaties with the other powers providing for an obligatory jurisdiction of the scope stated in [the Optional Clause].” Letter from Charles Hughes to the U.S. President, Mar. 21, 1923, Ann. 1 to Memorandum by Lord Chelmsford (First Lord of the Admiralty), July 21, 1924, PRO W 6062/338/98 FO 371/10573.

22 Elihu Root and Francis Hagerup. Root’s Legal Adviser, James Brown Scott, had also attended the Hague Conferences as had Anzilotti’s Secretary, Åke Hammarskjöld, and Bourgeois, the representative of the Council.

23 Procès-Verbaux, supra note 9, at 243.

24 See, e.g., the remarks of Altamira of Spain, id. at 102 and 229, and the memorandum submitted by Loder of the Netherlands, “Unilateral Summons or Previous Agreement,” id., Ann. 1, at 251.

25 Memorandum by Loder, supra note 24, at 249–51. His argument is elaborated in The Permanent Court of International Justice and Compulsory Jurisdiction, 2 Brit. Y.B. Int’l L. 6 (1921–22). In 1927 Lord Phillimore explained that there were three distinctions between a court of justice and arbitration. In arbitration, he said, states had to agree to arbitrate, agree to the compromis and agree to the arbitrators. In a court of justice, the court and the judges were established and “the party complaining comes to the Court and says: ‘Bring my adversary before you that he may answer.’ “ 69 Parl. Deb., H.L. (5th ser.), col. 107 (1927).

It is important to recognize that the word “arbitration” was used very loosely by governments, lawyers and laymen throughout the 1920s. A strict definition of the term is provided in Article 15 of the Hague Convention for the Pacific Settlement of International Disputes of 1899, 32 Stat. 1779, TS No. 392, which states: “International arbitration has for its object the settlement of differences between States by judges of their own choice, and on the basis of a respect for law.” However, the term “arbitration” was frequently treated as synonymous with adjudication. Thus, in the preparatory documents for the Committee of Jurists, the League’s Legal Adviser, van Hamel, had thought it necessary to discuss whether Articles 12, 13 and 15 of the Covenant allowed for the Court that was to be established under Article 14 of the Covenant to be arbitral or arbitral and judicial. He concluded that the Covenant allowed for a judicial organ. Memorandum Presented by the Legal Section of the League of Nations to the Advisory Committee of Jurists, in Permanent Court of International Justice, Advisory Committee of Jurists, Documents Presented to the Committee 117 (1920). This confusion may be due to the fact that the PCIJ, as established, did not have compulsory jurisdiction, and because of the novelty of the Court. People had not yet become used to distinguishing between the two procedures and there is sufficient similarity for the lay person to fail to perceive any difference. Additionally, however, it was usual in the 1920s to use the term “arbitration” to mean the pacific settlement of disputes by any means. For example, at the fifth (1924) League Assembly, Politis reported that “[c]ompulsory arbitration is the fundamental basis of the proposed system [of the Geneva Protocol].” General Report submitted to the Fifth Assembly on behalf of the First and Third Committees, LNOJ Spec. Supp. 23, Ann. 30, at 482 (1924). In the First (Legal) Committee at the same Assembly, Limberg (the Dutch Vice-Chairman of the committee) explained that “ ‘arbitration’ had been used in a very general sense as implying the idea of conciliation or of mediation; but compulsory arbitration in the legal sense meant the jurisdiction of the Permanent Court of International Justice, or of the Permanent Arbitration Court, or finally of a special arbitration tribunal.” LNOJ Spec. Supp. 24, Minutes of the First Committee, at 20 (1924). Perhaps this is because the term had been inherited from prewar attempts to develop the legal machinery for the pacific settlement of disputes or perhaps it was used simply because it was a convenient shorthand term for a less elegant and more awkward phrase. The latter explanation seems more likely. However, although there was little exactitude in terminology, it is nearly always clear how the term was being used.

26 Dispatch No. 607 from Sir Ronald Graham, The Hague, July 24, 1920, PRO General 209523/203188 FO 371/4311.

27 Minute by Lord Curzon, Oct. 5, 1920, PRO W 512/241/98 FO 371/5480.

28 A brilliant official, Crowe held the second most senior position in the Foreign Office as Assistant Under Secretary of State from 1912 to Nov. 27, 1920, when he was promoted to the top position of Permanent Under Secretary of State.

29 Hurst subsequently served as a judge of the PCIJ from 1929 to 1946 and he was its President from 1934 to 1936.

30 Hurst to Hankey, Sept. 28, 1920, PRO W 512/241/98, supra note 27. Maurice Hankey was Secretary to both the Cabinet and the Committee of Imperial Defence. In November 1919, to the chagrin of Curzon and the Foreign Office, the Cabinet decided that all League communications should go via a central office attached to the Cabinet and the Foreign Office was deemed to be concerned only “in a primary or secondary way.” PRO General 154784/ 1362 FO 371/4310 (Nov. 10, 1919). See also PRO GT The War 146254/1362 FO 3 7 1 / 4310; General 206571/1362 FO 371/4313. This led to confusion in British policy towards the League and the PCIJ. Crowe refused to provide draft answers to parliamentary questions because he had no information. Minute, May 19, 1920, PRO General 199291/1362 FO 371/4311. In addition, the relevant papers were received too late for effective action to be taken (and were then received in too great a quantity). Although, in October 1920, Hankey had a Foreign Office official seconded to the Cabinet Secretariat and claimed that this satisfied the Foreign Office and made for efficiency (diary entry, Oct. 22, 1920, cited in 2 Roskill, S., Hankey—Man of Secrets 192–93 (1972)Google Scholar), confusion and Foreign Office irritation continued until the fall of Lloyd George in October 1922. Crowe then seized the opportunity of immediately halting Hankey’s receipt of Foreign Office telegrams and dispatches. With his large secretariat threatened by the ax of the incoming Prime Minister, Bonar Law, Hankey decided to return League business to the Foreign Office immediately and thereby save expense. See id. at 304–05.

31 Minute, Aug. 14, 1920, PRO W 512/241/98, supra note 27.

32 Cabinet meeting, Aug. 13, 1920, PRO CAB 48(20), id.

33 Hankey to Hurst, Sept. 30, 1920, PRO W 519/241/98 FO 371/5480. See also Minutes by Crowe and Tufton (Head of the Western Department, which was “responsible” for the League in the Foreign Office), Oct. 5, 1920 and Oct. 1, 1920, respectively, PRO W 512/ 241/98, supra note 27.

34 Minute, Oct. 5, 1920, supra note 27.

35 See note by the Attorney-General (Sir Gordon Hewart), Sept. 28, 1920, PRO CP 1905 CAB 24/112; Memorandum by the Law Officers of the Crown, Oct. 14, 1920, PRO CP 1962 CAB 24/112.

36 In respect of the United States, Britain had in fact given assurances of cooperation should the former hold that British steps to enforce the orders-in-council of March 1915 and February 1917 were not in accordance with international law. This was because of special considerations connected with Anglo-American relations and treaty obligations that did not arise in respect of the European neutrals. See letter from the Procurator General to the then Permanent Under Secretary of State for Foreign Affairs (Lord Hardinge), Apr. 19, 1920, and Minute by Hurst, May 1, 1920, PRO T 4144/329 FO 372/1438; Minute (signature illegible), Aug. 7, 1920, T 8980/504/98 FO 372/1438. Throughout the 1920s, the issue of belligerent maritime rights was used as one of the major arguments against Britain’s accepting the Optional Clause. The issue is fully discussed in the report of a Cabinet subcommittee set up in 1927 after the Foreign Secretary, Austen Chamberlain, concluded that belligerent maritime rights was the one question that made war between Britain and the United States not just possible, but probable, unless Anglo-American differences on this score were settled. See Second Report of the Sub-Committee of the Committee of Imperial Defence on Belligerent Rights, Mar. 6, 1929, B.R. 82 (General 91/5), in 6 Documents on British Foreign Policy, ser. 1A, App. III (1975).

37 Minute by Crowe, Aug. 2, 1920, PRO General 20955/203188 FO 371/4311. As it was, .Britain still faced outstanding claims from ex-neutrals and it was taken as axiomatic that if the Court had retrospective jurisdiction it would reverse British decisions and order Britain to pay heavy compensation. It was thus made clear that the Court should not have this jurisdiction and that its judgments should not constitute binding precedents. See PRO CP 1962 CAB 24/112 and Draft Conclusions of a Conference of Ministers, Oct. 18, 1920, PRO W 1149/241 / 9 8 FO 371 /5480.

38 Minute by Crowe, supra note 34.

39 PRO CP 1962 CAB 24/112.

40 Minute by Crowe, supra note 34. Other objections were Britain’s “unhappy experience” of arbitration (Draft Scheme for a PCIJ, Note by the Attorney-General (Confidential), Sept. 28, 1920, CP 1905 CAB 24/112) and that as long as the United States was not a member of the Court, Britain should have nothing to do with it (id; see also Minute by Crowe, Oct. 14, 1920, PRO W 933/241/98 FO 371/5480).

41 I.e., a meeting (by which Prime Minister Lloyd George did not consider himself bound) of those Cabinet Ministers who might be interested in subjects on the agenda and whom he chose to invite. Those who attended were Lloyd George, Balfour (Lord President of the Council), Chamberlain (Chancellor of the Exchequer), Milner (Secretary of State for the Colonies), Curzon (Foreign Secretary) and Fisher (President of the Board of Education). Hewart (Attorney-General), Hurst (Legal Adviser to the Foreign Office) and Crowe (Permanent Under Secretary of the Foreign Office) were also present. PRO W 1149/241/98 FO 3 7 1 / 5480.

42 Britain had been informed of Italian objections at the 8th meeting of the League Council, and the Japanese objections had been delivered in a private memorandum to the Foreign Office on Sept. 4, 1920. PRO General 213646/203188 FO 371/4331. See also M. Hudson, supra note 9, at 118.

43 A former Unionist Prime Minister and Foreign Secretary from 1916 to 1919, Balfour was now Lord President of the Council.

44 Memorandum by Balfour, Oct. 11, 1920, PRO CP 1956 CAB 24/112.

45 Minutes of Conference of Ministers, Oct. 18, 1920, PRO W 1149/241/98 FO 3 7 1 / 5480. See also Fisher diary entry, Oct. 14, 1920 (rede Oct. 18, 1920), H. A. L. Fisher Papers 8A (on deposit in Bodleian Library, University of Oxford).

46 Memorandum, supra note 44.

47 Minute by Hurst, Oct. 29, 1920, PRO W 1504/241/98 FO 371/5480. The relevant articles now stated:

Article 34

La compétence de la Cour est réglée par les articles 12, 13 et 14 du Pacte.

Article 35

Sans préjudice de la faculté conférée par l’article 12 du Pacte, aux parties à un litige de le soumettre soit à la procédure judiciaire ou arbitrale, soit à l’examen du conseil, la Cour connaîtra sans convention spéciale des litiges dont le règlement est confié à elle ou à la juridiction institutée par la Société des Nations, aux termes des traités en vigueur.

League of Nations, Documents Concerning the Action Taken by the Council of the League of Nations Under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court [hereinafter cited as League Documents], Synopsis of Amendments to the Draft Scheme 41 (1920).

48 Under Secretary-General of the League.

49 Director of the Legal Section of the League.

50 A former Minister of Foreign Affairs, Bourgeois had been First French Delegate to the Hague Conferences of 1889 and 1907. He had chaired the committee that produced the official French draft of a League Covenant.

51 Following a brief discussion of the draft Statute at the beginning of August, the Council had adopted a report drafted by Bourgeois. This report had outlined some difficulties that the Council envisaged with regard to the judges of the Court and the element of compulsion. Bourgeois had then been asked to continue his study of the subject and was, accordingly, the drafter of the “elaborate report to the Council.” M. Hudson, supra note 9, at 118.

52 In a written note that began by stating that the “British Cabinet fully recognize the importance of providing a Permanent Tribunal without delay,” Balfour argued that the drafters had “evidently” never intended that one party should be able to compel another to go to the Court and that this had been a deliberate choice since the question of compulsory arbitration had “been before the legal authorities of the world now for many years” and it “had always been rejected whenever it had been brought up for practical decision.” Note on the Permanent Court submitted by Mr. Balfour to the Council of the League of Nations, League Documents, supra note 47, at 38. See also]. Wheeler-Bennett, & Fanshawe, M., Information on the World Court 1918–1928, at 63–64 (1929)Google Scholar.

53 The draft that the Committee of Jurists had presented would have enabled the Court, rather than the League Council, to decide when diplomatic methods of settling a dispute had been exhausted and whether the dispute should go to the Court, the Council or some other international tribunal. It could do this before the Council had considered the dispute. But the Covenant had given freedom of choice to League members under Article 12. Furthermore, although the Council was not opposed to the actual idea of compulsory jurisdiction on questions of a judicial nature, several of its members had objected to the term “any point of international law.” Report presented by the French Representative, M. Léon Bourgeois and adopted by the Council, League Documents, supra note 47, at 46–47.

54 Hurst had pointed out that the draft Statute “produces in fact in an even balder manner all that the scheme for the creation of an international prize court would have achieved. That scheme . . . was rejected by Great Britain, and most people now think wisely rejected.” Hurst to Hankey, supra note 30. After the Convention for an International Prize Court was opened for signature in 1907, it quickly became apparent that its ratification would be dependent upon the question of which law the Prize Court was to apply. Accordingly, the 1908 Declaration of London clarified the law of maritime warfare that was to be applied by the Court. In 1910 a bill was introduced into Parliament to provide for appeals to the International Prize Court, but the bill was withdrawn. A second bill was passed by the Commons in 1911 but was rejected by the Lords. A provision was also added to prevent the operation of the principle stare decisis. The Ministers Conference in October 1920 had declared:

The scheme was detrimental to us as a sea Power since it would enable predominantly land Powers to build up a code of international law which would fetter the exercise of our sea power. Unless precaution was taken to prevent its application being made retrospective, it would even enable appeal to be made against the decisions of our prize courts in the late war.

PRO W 1149/241/98 FO 371/5480. Although there was no question of Britain’s accepting compulsory adjudication, it was thought that the small states might use a system of precedent to put pressure on Britain. See Minute by Crowe, supra note 34. See also M. Hudson, supra note 9, at 207–08.

55 The subcommittee contained five members of the Committee of Jurists: Adatci, Fernandez, Hagerup, Loder and Ricci-Busatti; and five others appointed by the Bureau of the Third Committee: Doherty (Canada), Fromageot, Huber (Switzerland), Hurst and Politis. Amendments that would have reintroduced compulsory jurisdiction had been submitted by Argentina, Colombia, Spain and Panama. League Documents, supra note 47, at 43.

56 I.e., Brazil, Panama, Colombia and Argentina. See League of Nations, Records of the First Assembly, Minutes of the Third Committee [hereinafter cited as 1920 Minutes of the Third Committee], at 285–86 and 291; Minutes of the Sub-Committee of the Third Committee, id. at 381–85.

57 1920 Minutes of the Third Committee, supra note 56, at 280 and 288–89.

58 Report submitted to the Third Committee by M. Hagerup on behalf of the Sub- Committee, id., Ann. 7, at 533.

59 His name is sometimes spelled “Fernandes” both in League documents and in the relevant literature.

60 I.e., Art. 34(1) of the draft Statute (see note 11 supra). 1920 Minutes of the Third Committee, supra note 56, at 298–301, and Ann. 11, at 553.

61 Legally speaking, under Article 26 of the Covenant, any amendment to the Covenant required ratification by all the members of the Council and the majority of the members of the Assembly. Fernandez explained that his proposal would strengthen the authority of the Assembly vis-à-vis the Council since “the risk of establishing a precedent dangerous to the authority of the Assembly would be avoided.” 1920 Minutes of the Third Committee, supra note 56, at 302. In this connection, Hudson notes:

The term “statute” seems to have expressed a certain consideration for the feelings of those delegates in the Assembly who insisted on the creation of the Court by the action of the Assembly itself; at the same time, it distinguished the action taken by the Assembly from the ordinary resolutions adopted by that body.

M. Hudson, supra note 9, at 122.

62 Similar proposals had in fact been made earlier, but they had not been clung to with such tenacity. See the proposals put forward to the Committee of Jurists by Ricci-Busatti of Italy, Procès-Verbaux, supra note 9, at 246 and 582; and by his countryman, Tittoni, to the League Council, Extract from the Report of the Deliberations of the Council for Diplomatic Litigation attached to the Italian Ministry of Foreign Affairs, 1920 Minutes of the Third Committee, supra note 56, Ann. 2, at 498–99. See also proposals put forward at the Assembly by Politis and Huber, Minutes of the Sub-Committee of the Third Committee, id. at 380, 381, and the report of the Sub-Committee of the Third Committee, supra note 58, at 533- 34.

63 Bourgeois, the Chairman of the Third Committee, had suggested that the question be considered by a special subcommittee consisting of Hagerup (in the Chair), Fromageot, Hurst, Politis and Ricci-Busatti. It was decided, however (on the advice of Huber, Ricci- Busatti and Adatci), that the importance of the question called for a meeting of the full subcommittee. 1920 Minutes of the Third Committee, supra note 56, at 308.

64 Id., Ann. 35, at 612.

65 Id., Anns. 36 and 36a, at 613, 614.

66 Id., Ann. 34a, at 611.

67 Hagerup suggested combining parts of the formulas put forward by Fromageot, Huber and Fernandez. (The minutes incorrectly record Hagerup’s draft. See id., Ann. 37, at 615, and Minutes of the Third Committee, id. at 407.) Politis suggested combining parts of Fromageot’s and Fernandez’s formulas. See id., Ann. 38, at 616.

68 Draft Formula submitted by M. Fromageot of form to be given to the Constitution of the Court, Minutes of the Sub-Committee of the Third Committee, id., Ann. 34a, at 611. During the discussion, it became clear that there was scarcely any difference in principle between any of the drafts that had been suggested as a result of Fernandez’s demands. These provided that

the vote of the Assembly would result in the establishment of the Court as an organisation under the League of Nations, while the jurisdiction of the Court ratione personae would be determined by the ratifications of the States. Thus all the Members of the League would be bound to take part in the election of judges and to bear their shares in the expenses of the Court, as soon as its organic Statute came into force, whereas only such Members would be justiciable by the Court as had signed and ratified the Statute.

Id. at 408. During the course of the meeting, Fromageot drafted a new section that formed the basis of the Assembly resolution approving the Statute of the Court. See id., Ann. 34, at 610; and M. Hudson, supra note 9, at 122–24.

69 See 1920 Minutes of the Third Committee, supra note 56, at 312–17.

70 Id. at 312.

71 League of Nations, Records of the First Assembly, Plenary Meetings [hereinafter cited as 1920 Plenary Meetings], at 449.

72 Id. at 447.

75 Id. at 489. Cf. speeches by Blanco (Uruguay) and Arias (Panama), id. at 448 and 457; and by Urrutia (Colombia), Cornejo (Peru) and Aguero (Cuba), id. at 481, 483, and 487. Wellington Koo (China) and Costa (Portugal) also argued for compulsory jurisdiction. Id. at 482 and 485.

74 Id. at 445.

75 See id. at 455, for the remarks of Negelescu (Romania); id. at 492 and 490, for those of Hagerup and Motta (Switzerland). Politis countered the accusation of Lafontaine (Belgium) by arguing:

There was no majority which submitted to the rule of the minority; that would have been illogical and contradictory. A unanimous opinion was arrived at because it was understood that unanimity was the only means of attaining immediately the possible minimum; that is to say, a Permanent and Judicial Court which, however, should not at present be compulsory.

Id. at 482–83.

76 The Times (London), Dec. 14, 1920, at 11.

77 See the comment by Hymans (the Belgian President of the Assembly) on the speech by Zolger (Serb-Croat-Slovene State) that opened the afternoon proceedings. 1920 Plenary Meetings, supra note 71, at 479.

78 For Bourgeois’s speech, see id. at 493–95; and for Balfour’s speech, see id. at 487–89. Cf. speech by Schanzer (Italy), id. at 484.

79 See Ann. 1 to M. Hudson, supra note 9, at 665.

80 The Times, supra note 76.

81 1 Minutes of the Council, Sess. 11, Conclusion 273, at 35 (1920). The minutes suggest that there was no discussion of the Protocol of Signature.

82 1920 Plenary Meetings, supra note 71, at 641–42. See also M. Hudson, supra note 9, at 124–25. The Protocol of Signature is, however, dated Dec. 16, 1920.

83 Denmark, El Salvador, Portugal and Switzerland.

84 Portugal ratified on Oct. 8, 1921 (the date of deposit of ratification of the Protocol of Signature) and El Salvador ratified on Aug. 29, 1930 (the date of deposit of ratification of the Protocol of Signature). The states that had accepted the Optional Clause in 1921 before the second Assembly opened were the Netherlands (Aug. 6, 1921), Sweden (Aug. 16, 1921) and Bulgaria (Aug. 12, 1921, the date of deposit of the ratification of the Protocol of Signature). Five additional states had signed but not ratified their declarations by the opening of the Assembly: Luxembourg, Liberia, Uruguay, Costa Rica and Finland. During the Assembly, Haiti and Uruguay deposited ratifications of the Optional Clause (Sept. 7 and 27, respectively).

85 I.e., Bulgaria, Denmark, Haiti, the Netherlands, Norway, Portugal, Sweden, Switzerland and Uruguay. Seventeen states in all had signed the Optional Clause.

86 See, e.g., J. Wheeler-Bennett & M. Fanshawe, supra note 52, at 66; Verzijl, , The System of the Optional Clause, 1 Int’l Rel. 585 (1959)Google Scholar; M. Hudson, supra note 9, at 126.

87 According to Fernandez, this was because:

[W]hen I returned to my country, when I reported on our work and gave my Government my opinion, I said: I think it only right that, by adhering to the clause concerning the compulsory jurisdiction of the Court, we should emphasise that, over and above the legal and political necessities, the great Powers which have a preponderating voice in establishing the composition of the Court are morally bound to set the example of submitting to its jurisdiction.

Assembly Plenary Meeting, LNOJ Spec. Supp. 33, at 84 (1925).

88 Minute by G. H. Villiers (Head of the Western [League of Nations] Department), Dec. 23, 1920, PRO W 3467/241/98 FO 371/5480.

89 Minute by H. Malkin (Assistant Legal Adviser to the Foreign Office who became Legal Adviser in 1929 when Hurst was elected a judge of the PCIJ), Jan. 6, 1921, PRO W 22/ 22/98 FO 371/7033; and Spicer (the Foreign Office official attached to the Cabinet office) to Villiers, Jan. 13, 1921, PRO W 573/22/98 FO 371/7033.

90 See text at notes 41–45 supra.

91 See text at notes 34–40 supra.

92 Minute by Villiers, Jan. 15, 1921, PRO W 573/22/98 FO 371/7033. Cf. Minute by Tufton (who had recently moved from being Head of the Western Department to Head of the Central Department), Dec. 4, 1920, PRO W 2766/241/98 FO 371/5480.

93 Memorandum by the First Lord of the Admiralty (Lord Lee of Fareham) (Secret), Jan. 29, 1921, PRO CP 2507 CAB 24/119.

94 Memorandum by the Attorney-General (Sir Gordon Hewart), Jan. 3, 1921, PRO W 291/22/98 FO 371/7033.

95 Minutes of Cabinet meeting, Feb. 18, 1921, PRO CAB 8(21) W 2008/22/98 FO 371/7033.

96 PRO W 4911/22/98; W 5169/22/98 FO 371/7034. Although the Treaty Department had submitted a draft based upon the “usual procedure,” i.e., that the King made one ratification on behalf of the whole Empire, the developing stature of the Dominions meant that it was no longer possible to assume that they would automatically agree. Minute by Malkin, Feb. 24, 1921, PRO W 2008/22/98 FO 371/7033.

For a general discussion of the Dominions’ and India’s entry onto the world stage, see, for example, Carter, G., The British Commonwealth And International Security. The Role of the Dominions 1919–1939, Introduction and ch. 1 (1947)Google Scholar; Mansergh, N., The Commonwealth Experience, vol. 1, ch. 6 and vol. 2, ch. 1 (2d ed. 1982)CrossRefGoogle Scholar; Holland, R., Britain and the Commonwealth Alliance 1918–1939 (1981)Google Scholar.

97 PRO W 4641/22/98 FO 371/7033.

98 PRO W 5158/22/98; W 5463/22/98 FO 371/7034. Australia had replied that Prime Minister Hughes would sign the ratification when he arrived in England for the meeting of the imperial Prime Ministers, which was to begin on June 20.

99 PRO W 5218/22/98 FO 371/7034; W 6399/22/98; W 6760/505/98; W 7599/22/ 98 FO 371/7035.

100 Minute, Oct. 29, 1920, PRO A 8945/1054/45 FO 371/4590, cited in P. Yearwood, The Foreign Office and the Guarantee of Peace through the League of Nations, 1916- 1925, at 284 (PhD thesis, University of Sussex, 1980).

101 Minute, Oct. 5, 1920, PRO W 512/241/98, supra note 27.

102 Minute by Crowe, Oct. 14, 1920, supra note 40; Memorandum by Hewart, Sept. 28, 1920, PRO CP 1905 CAB 24/112.

103 Memorandum by Crowe, May 20, 1921, PRO W 5895/22/98 FO 371/7034.

104 H. Nicolson, Curzon: The Last Phase, 1919–25. A Study in Post-War Diplomacy 369 (1934).

105 Minute, May 23, 1921, PRO W 5895/22/98, supra note 103.

106 First Secretary in the Western Department who dealt with League business in the second instance.

107 Minute by Ronald Campbell, May 27, 1921, PRO W 5895/22/98, supra note 103. See replies to questions from Ormsby Gore, Mar. 23, 1921; Robert Cecil, Mar. 21, Apr. 24 and July 21, 1921; Barnes, June 14, 1921; Sir J. D. Reese, June 14, 1921; Lord Whearsdale, May 10, 1921; and Lord Phillimore, Mar. 16 and June 15, 1921. See also Minute by Cecil Harmsworth (Parliamentary Under Secretary of State at the Foreign Office), Apr. 7, 1921, on an article entitled Law or Arms which had appeared in the Daily News, and Harmsworth’s reply to a parliamentary question on Mar. 30, 1921, PRO W 3478/22/98 FO 371/7034. Other arguments for establishing the PCIJ were that failure to do so would be a severe blow to the League, that the Dominions would probably not follow Britain in such a course and that British public opinion wanted to see the Court set up. On the other hand, and in addition to Crowe’s arguments against ratification, there were some “farsighted” people who thought that the burden of the PCIJ on the budget of the League would have an even more deleterious effect than the absence of the United States.

108 Minute by Crowe, May 28, 1921, PRO W 5895/22/98, supra note 103. Crowe believed that it would be possible to delay action for a year, as he was under the misapprehension that June 5 was the cutoff date for depositing ratifications of the Protocol of Signature as well as being the cutoff date for nominating judges. However, the requisite 24 ratifications were so slow in reaching Geneva that both deadlines were extended to the opening of the second Assembly. In July Campbell wryly commented, “The Secretariat General are so desperately anxious to get the Court set up that they are stretching points in every direction.” Minute, July 7, 1921, PRO W 7332/22/98 FO 371/7035. See also Memorandum by Spicer, May 12, 1921, PRO W 5169/22/98 FO 371/7034.

109 Minute, May 28, 1921, PRO W 5895/22/98, supra note 103.

110 Minutes of Cabinet meeting, June 14, 1921, PRO CAB 49(21) W 6516/22/98 FO 371/7035.

111 See supra note 99.

112 Minute, June 15, 1921, PRO W 6443/22/98 FO 371/7035.

113 Fisher was President of the Board of Education and had been a British delegate to the first (1920) League Assembly.

114 The Belgians were about to draft a law for ratification. The Spanish Cabinet was considering the PCIJ and hoped to make an announcement in the next few days. The requisite French law was before the Senate and, although the rapporteur had fallen ill, Poincaré (President of the Committee for Foreign Affairs) had the matter in hand. Hanotaux, the French representative, later announced that the bill had been unanimously approved by the French Senate, that it had been forwarded to the Chamber of Deputies, and that it would immediately be examined by the Committee for Foreign Affairs. The Chinese explained that the copy of the Protocol of Signature which had been dispatched in February had’ been lost in the post and that another copy had not yet reached Peking. 2 Minutes of the Council, Sess. 13, Minute 392 of 8th (private) meeting, at 25, and Minute 419 of 17th (private) meeting, at 50 (1921). Hudson records the date of China’s deposit of ratification as May 13, 1922. M. Hudson, supra note 9, at 666.

115 2 Minutes of the Council, Sess. 13, Minute 378 of 5th (private) meeting, at 15 (1921).

116 Note by Mr. Fisher on the Geneva Council meeting, June 29, 1921, PRO CP 3101 W 7190/7190/98 FO 371/7060.

117 Hurst to Crowe, Sept. 15, 1921, PRO W 1008/22/98 FO 371/7036. He wrote:

The Court only contains three men who have judicial experience [a criterion to which the Foreign Office had attached primary importance]. It is made up of three judges, three legal advisers and five professors. I think I can safely prophesy that it will be completely dominated by Lord Finlay and Loder assisted by a vast fund of information which Moore [of the United States] will provide and troubled with a certain amount of obstructiveness from Anzilotti and Huber. I doubt if the rest will count.

118 Minute, Sept. 21, 1921, id.

119 Minute, Sept. 22, 1921, id.

120 Hurst to Crowe, Feb. 15, 1922, PRO W 1743/505/98 FO 371/8319. The majority of judges spoke only French, and Yovanovitch, a deputy judge, knew neither French nor English. Britain regarded a command of English as important for ensuring that Anglo-Saxon legal thinking would be taken into account by the judges.

121 Minute by Crowe, Mar. 4, 1922, id.

122 Minute by Curzon, Mar. 4, 1922, id.

123 That is, the request by the Council or the Assembly of the League for the views of the Court on legal questions. After public hearings, the Court deliberated in camera. Its opinion was delivered in open court. See M. Hudson, supra note 9, at 483 et seq.

124 These were the 1923 advisory opinions on the acquisition of Polish nationality and the delimitation of the Polish-Czechoslovakian frontier.

125 It arose out of the interpretation of Article 380 of the Treaty of Versailles and resulted from the refusal by the director of the Kiel Canal to allow the passage of the S.S. Wimbledon (a British ship chartered by a French company) to deliver armaments to the Polish naval base at Danzig. Britain, Italy and Japan contended that this was in violation of the Treaty of Versailles and, in January 1923, they took it to the Court under Article 386 of the Treaty. The Court found by a majority of eight to three in favor of the applicants.

126 See PRO C 9998/1294/18 FO 371/8788; and Fachiri, A., The Permanent Court of International Justice. Its Constitution, Procedure and Work 164–75 (1925)Google Scholar.

127 The dispute arose out of the decrees issued at the end of 1921 in the French Protectorate of Tunis by the Bey (the local ruler) and the French President. Their effect was to confer French nationality on a large number of British, Italian and Greek nationals who were resident in Tunisia. This meant that the British subjects (primarily of Maltese stock) were called up for national service. Those who resisted were imprisoned. In March 1922, the French authorities refused to grant fishing licenses to Maltese fishermen unless, by the ninth of that month, they had accepted French nationality. Foreign Office opinion was unanimous that Britain could not neglect the interests of its subjects and that it was morally and legally sound to maintain that they were British. Minute by Villiers, Head of the Western Department, Jan. 26, 1922, PRO T 911/224/317 FO 372/1844.

128 British diplomatic protests were at first ignored by France. See minute by Villiers, Mar. 7, 1922; PRO T 2190/224/317 FO 372/1845; telegram from Lord Hardinge (Ambassador to Paris), Mar. 17, 1922, PRO T 3385/224/317 FO 372/1845. In August France sent a formal reply written in

as uncompromising a tone as all their former notes. It refuses arbitration, refuses reference to the Council of the League, and actually returns to Sir M. Cheetham [British Minister in Paris] the note . . . in which on our instructions he proposed the latter solution while professing to leave open the door to a continued irksome correspondence through the diplomatic channel.

Minute by G. Mounsey (a senior member of the Treaty Department), Aug. 7, 1922, PRO T 9248/224/317 FO 372/1848. Hurst had initially proposed that Britain’s best course would be to demand arbitration under the Anglo-French Arbitration Treaty of 1903 and that this procedure would enable either side to back down without losing face. Minute, Jan. 25, 1922, PRO T 911/224/317 FO 372/1844. On second thought, he thought that going to the PCIJ would be cheaper and would enable Britain to act in conjunction with the Greeks and Italians who also had an interest in the matter. Minute, Jan. 27, 1922, id. See also PRO T 2188/224/317 FO 372/1844. In April Hurst and Malkin suggested that the dispute be referred to the League Council, which could then refer it to the PCIJ for an advisory opinion. See Minute by F. E. F. Adam (a senior member of the Treaty Department), Apr. 4, 1922, and Minute by Hurst, Apr. 5, 1922, PRO T 3725/224/317 FO 372/1846. The receipt of the French note in August led to a decision to adopt this suggestion. Minutes by Malkin, Aug. 7, 1922; Villiers, Aug. 8, 1922; Tyrrell (Assistant Under Secretary of State, the second most senior Foreign Office official), Aug. 8, 1922; and Curzon, n.d., PRO T 9248/224/ 317, supra. Once Britain placed the dispute on the agenda for the next Council meeting, the French attitude was transformed. Hurst to Mounsey, Sept. 11, 1922, PRO T 11187/224/ 317 FO 372/1849. Balfour and Bourgeois agreed to resolve the dispute in a friendly manner, but Paris remained sensitive and fearful of giving the appearance of having backed down. Lengthy negotiations requiring all Hurst’s diplomatic skills produced agreement with France that the League Council should ask the PCIJ for an advisory opinion under Article 15(8) of the Covenant as to whether the dispute was, as the French contended, solely a matter of domestic jurisdiction. If the Court ruled that it was not a domestic matter, they would submit it to the Court for adjudication. See dispatch from Hurst (Geneva), Sept. 29, 1922, and Minutes thereon by F. E. F. Adam and G. Mounsey, Oct. 4, 1922, and Minute by Crowe, Oct. 6, 1922, PRO T 11444/224/317 FO 372/1849. This procedure was adopted in a joint Anglo-French resolution and the following February the Court gave its opinion that the question of the Nationality Decrees was not a domestic matter. As it happened, it was unnecessary for the Court to go on to consider the merits of the case because the French were willing to come to a satisfactory agreement with Britain that British subjects “up to and including the second generation born in Tunis” were entitled to decline French nationality, as were all British nationals born in Tunis before Nov. 8, 1921 (the date on which the Nationality Decrees were issued).

129 Interestingly, the lack of caliber of the judges (from the British point of view) was seen as advantageous to Britain. When Curzon queried the wisdom of taking the Tunis Nationality Decrees to the PCIJ because “[m]y impression of the Court is that the judges are a very scratch lot and that no-one could forecast the result” (Minute, Apr. 7, 1922, PRO T 3725/ 224/317 FO 372/1846), Malkin reassured him that, although the judges “certainly do not appear a very imposing body,” the qualities of Lord Finlay, the British judge, were so far superior to those of his fellow judges “that they were instinctively impelled to follow his lead.” This meant, he continued, that the Court was possibly a better bet than had been anticipated a few months earlier. Minute, Apr. 24, 1922, id.