Hostname: page-component-cd9895bd7-gxg78 Total loading time: 0 Render date: 2024-12-27T06:58:29.531Z Has data issue: false hasContentIssue false
  • English
  • Français

Arbitration and Judicial Settlement Recent Trends

Published online by Cambridge University Press:  30 March 2017

Laurent Jully
Get access Rights & Permissions [Opens in a new window]

Extract

It is generally agreed that the establishment of the Permanent Court of International Justice brought about a decisive advance in the development of arbitration. It not only made possible the elimination of the occasional element of arbitration by substituting for it a permanent institution capable of creating a real case law, but it also removed a difficulty which until then had been insuperable, viz., the question of the composition of an arbitral tribunal.

Type
Research Article
Information
American Journal of International Law , Volume 48 , Issue 3 , July 1954 , pp. 380 - 407
Copyright
Copyright © American Society of International Law 1954

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 The basic difference between arbitration and judicial settlement is the composition of the two adjudicating bodies. It is fundamentally wrong, it is submitted, to seek the difference between the two in the powers respectively conferred upon them. According to this latter view, judicial settlement involves the application of law, while arbitral settlement operates on a wider basis, taking account, for instance, of considerations of equity and expediency. In fact, however, Art. 37 of the Hague Convention of 1907 on the Pacific Settlement of International Disputes defines arbitration as “the settlement of disputes between States by judges of their own choice and on the basis of respect for law.” It may of course happen in a given case that states will grant broader powers to an arbitral tribunal than are granted to the International Court by its Statute. But this leaves the principle unaffected: judicial settlement involves a preconstituted body, while arbitration does not. Nor is the view quite accurate, which at one time at least the International Law Commission seemed to entertain on the question, i.e., that “It should be borne in mind that international arbitration was distinct from international jurisdiction proper in that it left it to the parties to define the issue and to choose the arbitrators.” (Italics added.) Report of the International Law Commission Covering its Second Session, 1950, U.N. General Assembly Official Records, 5th Sess., Supp. No. 12 (A/1316), par. 168, p. 19. A more recent view, expressed by the same learned body, seems more correct and reflects established law and practice: “… international arbitration is a procedure for the settlement of disputes between States by a binding award on the basis of law and as the result of an undertaking voluntarily accepted.” Report of the International Law Commission Covering the Work of its Fifth Session, U.N. Doc. A/CN. 4/76 of August 17, 1953.

2 This is emphasized by the second part of Art. 1 of the Statute (before the revision of 1945). It provided that the Court “shall be in addition to the Court of Arbitration organized by the Conventions of The Hague of 1899 and 1907, and to the special Tribunals of Arbitration to which States are always at liberty to submit their disputes for settlement.”

3 A proposal to abolish the Court of Arbitration, made by the Argentine Delegation, at the First Assembly of the League of Nations in 1920, was defeated. See Hudson, The Permanent Court of International Justice, 1920–1942, p. 36.

4 The Eeport of the Administrative Council of the Permanent Court of Arbitration, published in 1952, lists (p. 6) 45 “Signatories or Contracting Parties” as of March 29, 1952, nine of which are not parties to the Statute of the International Court.

5 It is sometimes rather difficult to decide whether the Court of Arbitration does or does not really deal with a dispute, as in cases where the arbitrators have been selected outside the panel of members of the Court, with its “International Bureau,” however, lending its assistance and co-operation in the case. The yearly reports of the Court of Arbitration make use of the somewhat ambiguous formula “Arbitral Cases Judged by the Permanent Court of Arbitration or with the Co-operation of its International Bureau.” According to the last report, 7 such arbitrations took place between 1920 and 1940. In fact, only 4 awards have been delivered by members of the court. In the postwar period, no arbitration has yet taken place, although a new case, i.e., that between France and Greece (the last phase—compensation—of the Lighthouses Case dealt with in 1936–1937 by the International Court), is soon to be adjudicated by a 3-member tribunal presided over by Prof. Verzijl.

6 This total is of course far from exhaustive. The texts of 59 arbitral awards, including those rendered by the Court of Arbitration, have been published in the first three volumes of the above-mentioned Reports. These volumes have been prepared by the Registry of the International Court of Justice, while Volumes 4 and 5, containing decisions of Claims Commissions between the United States and Mexico (Vol. 4) and between Great Britain, France, and Germany, on the one hand, and Mexico on the other hand (Vol. 5), are the work of the Legal Department of the United Nations, as will be the next volumes to be published.

7 These latter decisions have been published in several well-known reports and books, as, e.g., the Recueil des Décisions des Tribunaux arbitraux mixtes institués par lea traités de paix, the consolidated edition of the decisions of the Mixed Claims Commission, United States-Germany.

8 Art. 95 of the Charter of the United Nations reads as follows: “Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals [other than the International Court] by virtue of agreements already in existence or which may be concluded in the future.”

9 It is, however, doubtful whether the advantages of a preconstituted tribunal, such as the International Court, are in all cases such as to outweigh those of an arbitral tribunal. It is, for instance, not unlikely that in a case such as the Asylum Case between Colombia and Peru a satisfactory solution could have been more easily found by an arbitral tribunal of three members to which broader powers could have been granted than are normally enjoyed by a court of law such as the International Court.

10 Report of the International Law Commission Covering the Work of its Fifth Session (U.N. Doc. A/CN.4/76, August 17, 1953), pp. 25 ff.

11 Report on Arbitration Procedure by Georges Scelle (International Law Commission, Second Session, U.N. Doc. A/CN.4/18, March 21, 1950). See also Second Report, A/CN.4/46, May 28, 1951, and Additional Note, A/CN.4/57, June 6, 1952.

12 This is not new. The situation was the same after the first World War, as evidenced by the compilation prepared by the League of Nations in 1929: “Arbitration and Security, Systematic Survey of the Arbitration Conventions and Treaties of Mutual Security deposited with the League of Nations” (Doc. C.653.M.216). See also Habicht, Post-War Treaties for the Settlement of International Disputes (1931).

13 One recent example is the “Arbitral Advice” delivered at Brussels, on Feb. 20, 1953, by Professor Sauser-Hall, pursuant to the Agreement of Washington of April 25, 1951, between the United States, France and the United Kingdom, concerning certain claims with respect to gold looted by the Germans from Eome in 1943.

14 The so-called inactivity of the International Court, in statistical perspective, is a very relative notion. While it is true that one rightly hopes that more cases might be entrusted to the Court, it is inaccurate to claim that it has far less to do than its predecessor, the Permanent Court (see, e.g., Schwarzenberger, Power Politics, p. 463). In seven years (1946–1953) the Court has delivered 12 judgments in 8 contentious cases, while 3 cases are still pending. A further ease was withdrawn following settlement out of court. In addition, the Court has delivered 7 advisory opinions. During the equivalent period (1921–1928) the Permanent Court had delivered 11 judgments in 7 cases and given 14 advisory opinions. These figures are eloquent and much to the advantage of the present Court, having regard to the fact that most of the cases submitted to the Permanent Court were concerned with differences as to the application and interpretation of the Peace Treaties of 1920–1921. This avenue was closed to the International Court, the parties to the treaties concluded after the second World War having ignored the Court, as will be seen below.

15 Although the text of Art. 36 is well known, it is quoted here for the sake of convenience: “1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.

“2. The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

(a) the interpretation of a treaty;

(b) any question of international law;

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

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

As to a shorter definition of legal disputes, see the so-called Locarno formula: “all disputes of every kind with regard to which the Parties are in conflict as to their respective rights.” Arbitration Conventions between Germany, on the one hand, and Belgium, France and Czechoslovakia, on the other. (League of Nations, Systematic Survey of the Arbitration Conventions and Treaties of Mutual Security deposited with the League of Nations, 1929, pp. 408 ff.) See also an analysis of the various formulae in the work of the United Nations, Systematic Survey of Treaties for the Pacific Settlement of Disputes (1928–1948), p. 59.

16 See League of Nations, Records of First Assembly, Committee I, p. 553. For a short history of the drafting of the optional clause, see Hudson, op. cit., par. 118, p. 126, and par. 446, p. 449.

17 See P.C.I.J., 16th Report, Series E, No. 16, pp. 345 ff.

18 International Court of Justice, Yearbook (hereafter referred to as “Yearbook”) 1950–1951, p. 193.

19 Yearbook 1951–1952, p. 185.

20 See particulars ibid., pp. 184 ff.

21 32 according to the last Yearbook (1952–1953).

22 The most drastic example is that of the United States, which excluded from its declaration disputes “with regard to matters which are essentially within the domestic jurisdiction of the United States of America, as determined by the United States of America.” (Complete text in Yearbook 1946–1947, p. 217.) For a strong criticism of this formula, see Preuss, , “The International Court of Justice, the Senate, and Matters of Domestic Jurisdiction,” this Journal, Vol. 40 (1946), p. 720Google Scholar, especially at p. 729. See also Hambro, “The Jurisdiction of the International Court of Justice,” in 76 Recueil des Cours de l’Académie de Droit International (1950, I) 188Google Scholar. Unfortunately this example has been followed, as was foreseen by some (see Wilcox, “The United States Accepts Compulsory Jurisdiction,” this Journal, Vol. 40 (1946), p. 699Google Scholar, at p. 711); see declarations by France (Yearbook 1946–1947, p. 220), Mexico (Yearbook 1947–1948, p. 129), and Pakistan (ibid., p. 131).

23 The following is the text of the relevant part of Resolution 171 (II) : “The General Assembly, Considering that, in virtue of Article 1 of the Charter, international disputes should be settled in conformity with the principles of justice and international law; Considering that the International Court of Justice could settle or assist in settling such disputes if, by the full application of the provisions of the Charter and of the Statute of the Court, more frequent use were made of its service; (1) Draws the attention of the States which have not yet accepted the compulsory jurisdiction of the Court in accordance with Article 36, paragraphs 2 and 5 of the Statute, to the desirability of the greatest possible number of States accepting this jurisdiction with as few reservations as possible; (2) Draws the attention of States Members to the advantage of inserting in conventions and treaties arbitration clauses providing, without prejudice to Article 95 of the Charter, for the submission of disputes which may arise from the interpretation or application of such conventions or treaties, preferably and as far as possible to the International Court of Justice; (3) Recommends as a general rule that States should submit their legal disputes to the International Court of Justice.”

24 In 1928 a similar appeal by the Assembly of the League of Nations was much more rewarding. See Resolution adopted on Sept. 26, 1928, League of Nations, Official Journal, Special Supp. No. 64, 1928, p. 491.

25 The Anglo-Norwegian Fisheries Case (proceedings instituted by the United Kingdom on Sept. 28, 1949); the Eights of Nationals of the United States in Morocco Case (instituted by France on Oct. 28, 1950); the Anglo-Iranian Oil Company Case (instituted by the United Kingdom on May 26, 1951); and the Nottebohm Case (instituted by Liechtenstein against Guatemala on Dec. 17, 1951).

26 The 11 cases in which the optional clause was used to found the jurisdiction of the Court are cited in Hudson, op. cit., par. 463, pp. 477 ff.

27 Minquiers and Ecrehos case, between the United Kingdom and France (special agreement notified by the United Kingdom on Dec. 6, 1951).

28 Protection of French Nationals in Egypt Case (instituted by France against Egypt on Oct. 13, 1949); Asylum Case (instituted by Colombia against Peru on Oct. 15, 1949); Haya de la Torre Case (instituted by Colombia on Dec. 13, 1950); Ambatielos Case (instituted by Greece against the United Kingdom on April 9, 1951); Monetary Gold Case (instituted by Italy against France, the United Kingdom and the United States on May 19, 1953); Société Electricité de Beyrouth Case (instituted by France against Lebanon on Aug. 15, 1953).

29 Corfu Channel Case (instituted by the United Kingdom against Albania on May 22, 1947). This is what is called the forum prorogatum. See, on this particular example of jurisdiction, Waldock, “Forum Prorogatum or Acceptance of a Unilateral Summons to Appear before the International Court,” in 2 International Law Quarterly (1948) 377 ff.; Jully, “Le premier arrêt de la Cour internationale de Justice,” in 48 Friedens-Warte (1948) 144 ft., at 153.

30 See Kaeckenbeeck, “La Charte dans ses rapports aveo le droit international,” in Hague Academy of International Law, Recueil des Cours, Vol. 70 (1947, I), p. 133Google Scholar ff., passim, e.g., pp. 133, 135., Among several articles in this Journal may be eited that by Eagleton, “International Law and the Charter of the United Nations,” Vol. 39 (1945), p. 751. A good summary of the position is given by Delbez, “L’Evolution des idées en matière de règlement pacifique des conflits,” in Revue générale de droit international public, Vol. 55 (1951), p. 5Google Scholar ff., stating: “Les auteurs de la Charte se sont instinctivement méfiés du droit et ils ont pensé, semble-t-il, que la sécurité est au-dessus de la justice et que l’établissement de l’ordre doit précéder le règne de la loi.” (p. 8.)

31 See Revised General Act for the Pacific Settlement of International Disputes, adopted by the General Assembly of the United Nations (Resolution 268(II) of April 28, 1949). See also Brussels Treaty (signed on March 17, 1948) for Collaboration in Economic, Social and Cultural Matters and for Collective Self-Defense, 19 U.N.T.S. 52 ff.; Pact of Bogotá (signed on April 30, 1948), 30 U.N.T.S. 84 ff.

32 The report of Subcommittee IV/2/A on the juridical status of the United Nations Organization stated the following: “As regards the question of international juridical personality, the Subcommittee has considered it superfluous to make this the subject of a text. In effect, it will be determined implicitly from the provisions of the Charter taken as a whole.” (13 U.N.C.I.O. 817.) This passage was inserted without change in the final report of Committee IV/2 (ibid., p. 710). This innocuous statement is somewhat clarified by the Report to the President of the United States on the results of the San Francisco Conference by the Chairman of the U. S. Delegation: “[Article 105] does not deal with what is called the ‘international personality’ of the Organization. The Committee which discussed this matter was anxious to avoid any implication that the United Nations will be in any sense a ‘super-State’ …” (Department of State Publication 349, Conference Series 71).

33 It stated that “in view of the tendency to create a number of public international organizations with specialized functional responsibilities enjoying varying degrees of independence and likely to enter into agreements with each other analogous to treaties between States, it would seem desirable that the Permanent Court or any new court which may be established should be empowered to assume jurisdiction of any dispute between two or more such organizations which the parties thereto may refer to it or in respect of which it may be granted jurisdiction by treaties or conventions binding upon the organizations concerned.” Official Bulletin of the International Labor Office, Vol. XXVI, No. 2 (Dec. 1, 1944), p. 896.

34 Par. 2 states that the Court “may request of publie international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative.” The Court has not yet made use of this provision. On the other hand, it made use of a similar provision contained in Art. 66 providing for the furnishing of information by international organizations in advisory procedure. This procedure was applied in connection with the Advisory Opinion Concerning Reservations to the Genocide Convention. Both the International Labor Organization and the Organization of American States were asked to give their views on the question. They both filed written statements. (I.C.J. Reports, 1951, pp. 15 ff., at pp. 17–18.) As yet no international organization has taken the initiative provided for in Art. 34, par. 2. As to par. 3, this provides that “whenever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question in a case before the Court, the Registrar shall so notify the public international organization concerned and shall communicate to it copies of all the written proceedings.”

35 “The Status of International Organizations in Relation to the International Court of Justice,” in 32 Transactions of the Grotius Society (1946) 38.

36 I.C.J. Reports, 1949, pp. 174 ff.

37 For present purposes the following definition of a public international organization is suggested: a collective entity created by several states or, possibly, by several international persons, for the attainment of a common object, possessing specific organs, invested with the necessary powers and endowed, in all cases, with legal personality under domestic law, as well as international personality, both in the territory of member states and of states which have recognized the organization.

38 I.C.J. Reports, 1949, p. 179.

39 This might be an easier way than to wait for a hypothetical revision of the Statute.

40 Art. 37, par. 2 of the (amended) Constitution of the International Labor Organization adopted on Oct. 9, 1946, provides that “any applicable judgment or advisory opinion of the International Court of Justice shall be binding upon any tribunal established in virtue of this paragraph.” After providing that any question or dispute relating to the interpretation of the constitution or of any subsequent convention shall be referred for decision to the International Court, this article contemplates, in its par. 2, the possibility of the appointment of a special tribunal for the “expeditious determination of any dispute or question relating to the interpretation of a convention.” It is upon such a tribunal that the relevant advisory opinion of the Court would be binding.

41 The Convention on Immunities and Privileges of the United Nations, Sec. 30, provides that “if a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question involved, in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the Parties.” (1 U.N.T.S. 30.) The replica of this provision is contained, mutatis mutandis, in Sec. 32 of the Convention on the Privileges and Immunities of the Specialized Agencies, approved Nov. 21, 1947 (33 ibid. 282). Art. VIII, Sec. 21, of the Headquarters Agreement of June 26, 1947, between the United Nations and the United States provides for the setlement of disputes relating to the interpretation or application thereof by a tribunal of three arbitrators. Subparagraph (b) adds: “The Secretary-General or the United States may ask the General Assembly to request of the International Court of Justice an advisory opinion on any legal question arising in the course of such proceedings. Pending the receipt of the opinion of the Court, an interim decision of the arbitral tribunal shall be observed by both parties. Thereafter, the arbitral tribunal shall render a final decision, having regard to the opinion of the Court.” (11 ibid. 30.) The somewhat vague formula “having regard to the opinion of the Court” is to be understood as meaning that the opinion of the Court shall be binding upon the tribunal. Finally, reference may also be made to the abortive Charter of the International Trade Organization (the so-called “Havana Charter”) where resort is made to the same device. See Art. 96 (text in United Nations Conference on Trade and Employment, Final Acts, and Related Documents).

42 It is rather interesting to observe that in a completely different context a somewhat similar device has recently been used. In the Washington Agreement concluded on April 25, 1951, between the governments of France, the United Kingdom and the United States for the Submission to Arbitration of Certain Claims to Gold looted by the Germans from Rome in 1943, the three Powers agreed to request from an eminent and impartial jurist to be designated by the President of the International Court of Justice an “arbitral advice”—not an award—concerning the state to which the gold should be attributed. It was further agreed that the three governments would accept the advice given by the arbitrator on the question whether Albania or Italy, or neither, has established a claim to the 2338 kg. of gold in question. See United Kingdom Treaty Series No. 39 (1951). The jurist designated was Professor G. Sauser-Hall of the University of Geneva. On Feb. 20, 1953, the arbitrator gave an arbitral advice stating that the monetary gold belonged to Albania.

43 It is impossible to share on that point the optimistic views put forward by Dr. Hambro, the learned former Registrar of the Court, who appears to see in this a satisfactory way of enabling international organizations to gain direct access to the Court. (See “Some Observations on the Compulsory Jurisdiction of the International Court of Justice,” in 25 British Yearbook of International Law (1948) 156–157.) Yet, there are some difficulties which, although they might appear academic, should not be overlooked. First, there is no legal obligation on the Court to reply to a request for an advisory opinion (doubtless the Court would not easily reject such a request, especially after the statements it made in the Peace Treaties (First Phase) Case, I.C.J. Reports, 1950, p. 71, and in the Reservations to the Genocide Convention Case, ibid., 1951, p. 19, to the effect that “a reply to a request for an opinion should not, in principle, be refused.”) Furthermore, there is the question of res judicata. Arts. 59 and 60 do not apply to advisory procedure. Thus the result of such an opinion might possibly be questioned later in a subsequent contentious case. Then there is also the impossibility for a third state to “intervene” in a technical sense, under Art. 63, when the advisory procedure with binding force involves the interpretation of a multilateral treaty to which this third state is a party, and that would generally be the case. Finally there is no enforcement procedure such as that provided for by Art. 94 of the Charter for contentious cases. While it is conceded that these objections are somewhat academic, they will serve to show that all sorts of procedural difficulties and questions might arise in a given case and that this oblique way of trying to remedy the defects of Art. 34 is not the best that can be devised.

44 See, e.g., the Technical Assistance Agreements concluded between several international organizations members of the Technical Assistance Board and states, such as the Basic Agreement between the Secretary General of the United Nations on behalf of the International Organizations Members of the Technical Assistance Board and the Government of Indonesia for the provision of technical assistance under the expanded program, signed at Djakarta, Nov. 2, 1950, Art. VI (c), 81 U.N.T.S. 172. See also the Articles of Agreement concluded with many states by the International Bank for Reconstruction and Development, Art. IX (c).

45 In a very apt passage, deserving quotation, of the paper referred to above, Jenks states that “inconvenient and irritating restrictions upon access to the Court by the specialised agencies will encourage the latter to rely upon ad hoc tribunals for the determination of questions which might more appropriately be referred to the Court.” (Loc. cit., p. 19.) It is today a fact that many constitutions of specialized agencies provide for the reference of certain disputes to ad hoc tribunals. It will thus be very difficult to change this situation, because it would require not only an amendment of the Court’s Statute, but also amendments of the constitutions of the agencies.

46 The texts of the Peace Treaties have been published in the United Nations Treaty Series: Treaty with Italy, 49 U.N.T.S. 126 ff.; with Bulgaria, 41 ibid. 50 ff.; with Hungary, 41 ibid. 168 ff.; with Rumania, 42 ibid. 34 ff.; with Finland, 48 ibid. 128 ff.

47 In an article on ‘ The Franco-Italian Conciliation Commission,” Bos emphasized the judicial nature of these bodies empowered to deliver binding decisions upon the parties (22 Acta Scandinavica Juris Gentium (1952) 135).

48 See Collection of Documents of the Paris Conference, Vol. IV, p. 414 (Italy), p. 449 (Rumania), p. 474 (Bulgaria), p. 498 (Hungary), p. 518 (Finland).

49 Ibid., pp. 353, 362, 374, 382.

50 Ibid., pp. 416, 451, 476, 500, 520.

51 Art. 87 of the Treaty with Italy, 49 U.N.T.S. 169; Art. 36 of the Treaty with Bulgaria, 41 ibid. 84; Art. 40 of the Treaty with Hungary, ibid. 210; Art. 38 of the Treaty with Rumania, 42 ibid. 72; Art. 35 of the Treaty with Finland, 48 ibid. 254. The system, mutatis mutandis, is the following: If a dispute concerning the interpretation or execution of the treaty is not settled by direct diplomatic negotiations, it is to be referred to the Heads of Mission of the Great Powers, or to some of them, in the capital concerned. If the dispute is not settled by them within a period of two months, and unless the parties agree upon another means of settlement, it shall be referred at the request of either party to a three-member Commission: one representative of each party and a third member selected by mutual agreement of the two parties from nationals of a third country. If the two parties fail to agree within a period of one month upon the appointment of the third member, the Secretary General of the United Nations may be requested by either party to make the appointment.

52 I.C.J. Reports, 1950, p. 229.

53 See Conference for the Conclusion and Signature of the Treaty of Peace with Japan, Records of Proceedings, Art. 22, p. 325. This condition was fulfilled in 1951 and 1952. See Yearbook 1952–1953, p. 36.

54 See the texts of these conventions in Cmd. 8571, Germany No. 6 (1952), Her Majesty’s Stationery Office.

55 See Charter of the Arbitration Tribunal established under the Convention on Relations between the Three Powers and the Federal Republic of Germany, Art. 1 (Yearbook 1952–1953, pp. 209–210); Charter of the Arbitral Commission on Property, Rights and Interests in Germany established under the Convention on the Settlement of Matters Arising out of the War and the Occupation, Art. 3 (ibid., pp. 210–211); Charter of the Supreme Restitution Court established under the Convention on the Settlement of Matters Arising out of the War and the Occupation, Art. 2 (ibid., pp. 211–212).

56 Judgment of Nov. 20, 1950, I.C.J. Reports, 1950, p. 266 et seq.

57 This criticism is seldom expressed in writing, but it is not infrequently voiced by international lawyers. It relates to the very delicate question—which is beyond the scope of the present paper—of the composition of the Court, which rightly causes concern to many people at the present time. For example, the Institute of International Law put the matter on its agenda at its last session in Siena in 1952 and, on the proposal of a commission presided over by Judge Guerrero, Vice President of the Court, the Institute adopted a “voeu” concerning the procedure of elections to the Court. See 44 Annuaire de l’Institut de Droit international, Siena Session, 1952, Vol. II, pp. 451–452. See also Kuhn, “The Siena Conference of the Institute of International Law,” this Journal, Vol. 46 (1952), pp. 718–719Google Scholar. But the more general question of the composition of the Court is still being studied. A commission of the Institute composed of lawyers of very high standing has recently co-operated in producing a report, prepared by Judge Huber, a former President of the Permanent Court, on the amendments to be introduced to the Statute of the International Court. This report was examined at the session of the Institute held at Aix-en-Provence in April, 1954.

58 This is usually a subconscious idea in the minds of lawyers and statesmen. A recent example, however, emanating from no less important a body than the learned International Law Commission, proves the importance of this factor. In its session held during the summer of 1953 the Commission adopted, at its 234th meeting, some draft articles concerning the continental shelf. Art. 8 provides for the arbitration of disputes arising from the interpretation or application of these articles. The following comment is made: “89. The provision for arbitration as laid down in Article 8 does not exclude any other procedure agreed upon by the parties as a means of the formal settlement of the dispute. In particular, they may agree, in matters of general importance, to refer the dispute to the International Court of Justice.” (Italics added.) (Doc. A/CN. 4/76, Aug. 17, 1953.) It would therefore seem that there is here envisaged a hierarchy of cases to be submitted respectively to arbitration or to judicial settlement. See, on the other hand, in Lauterpacht’s classical work, The Function of Law in the International Community, an analysis of the principle—which he rightly criticizes—that only unimportant disputes should be submitted to adjudication (the so-called “de maximis non curat praetor” principle!) (p. 166 et seq.).

59 This idea is accepted by Kaeckenbeeck, 70 Hague Recueil (1947, I) 216, and by Jenks, loc. cit., p. 19.

60 Statute, Art. 26.

61 Statute, Art. 30; Rules of the Court, Art. 7.

62 In accordance with Art. 40, par. 3, of the Statute, Art. 34, par. 2, of the Rules of Court provides that copies of special agreements or applications be transmitted to Members of the United Nations and to any other states entitled to appear before the Court. This wide publicity may sometimes deter states from airing their disputes in a public forum. To this extent the system may be regretted. But such a provision, under present circumstances, is inevitable. How, for instance, could a third state decide whether to intervene in a case, under Art. 62 of the Statute, without knowing that a case has been brought, or what its legal basis is?

63 Statute, Art. 29; the Chamber for Summary Procedure of the Permanent Court functioned in the case between Greece and Bulgaria concerning the interpretation of the Treaty of Neuilly (Judgment of Sept. 12, 1924, P.C.I.J., Series A, No. 3; and Judgment of March 26, 1925, P.C.I.J., Series A, No. 4).

64 This is clearly shown by even a perfunctory reading of some orders of the Court. See, e.g., I.C.J. Reports, 1952, pp. 19, 25, 90.

65 Three important examples may be cited: in the Fisheries Case the time which elapsed between the end of the oral procedure and the delivery of the judgment was 7 weeks; in the Anglo-Iranian Oil Company Case it was one month; and in the Rights of U. S. Nationals in Morocco Case it was also one month.

66 See, e.g., Art. 66, pars. 2 and 4, of the Statute, and many articles of the Rules of Court.

67 See Yearbook 1950–1951, p. 113, comment on Art. 40, par. 4, of the Rules of Court, in which this practice is indicated as being in accordance with the practice of the Permanent Court.

68 In the Corfu Channel Case, the total number of printed pages for the pleadings, oral arguments and documents was about 2600, while in the Fisheries Case, it reached 2900.

69 They are carefully studied in the above-mentioned work of the United Nations, Systematic Survey of Treaties for Pacific Settlement of Disputes, 1928–1948, pp. 89–107.

70 The first instances may be found in treaties concluded in 1922. See Trade Agreement between Latvia and Czechoslovakia of Oct. 7, 1922, Art. 24, 20 League of Nations Treaty Series 379.

71 See the texts of these provisions in P.C.I.J., Collection of Texts Governing the Jurisdiction of the Court, 4th ed., Series D, No. 6, pp. 637–679.

72 There are many examples of such provisions; see Art. VIII, sec. 21, of the Headquarters Agreement between the United Nations and the United States, 11 U.N.T.S. 30.

73 Although there are already a number of inter-organizational agreements, there is usually no dispute provision, as if such a contingency were somewhat shocking and impossible. In fact, such disputes as may arise are settled by negotiation.

74 For instance, some contracts concluded by the International Labor Organization with private individuals provide for the arbitration of disputes by a three-member tribunal, the umpire being in some cases designated by the President of the “Tribunal de Première Instance” of Geneva.

75 While in the Yearbook 1951–1952, 37 pages and 17 new entries were devoted to the texts conferring jurisdiction upon the Court, as against 15 pages and 34 new entries dealing with this “extra-judicial” function, the two parts are practically balanced in the Yearbook 1952–1953 (37 as against 35 pages). No fewer than 120 entries, of which 75 are new, relate to this extra-judicial function. It may, however, be added, in order to qualify this statement, that many of these new entries relate to Loan or Guarantee Agreements concluded by the International Bank, and to similar Technical Assistance Agreements concluded by the World Health Organization.

76 The exception is No. 76, the Treaty of Friendship, Conciliation and Judicial Settlement between Turkey and Italy, signed at Rome, March 24, 1950 (Art. 6): “In the event of one of the High Contracting Parties failing to nominate candidates [to the office of President of the Permanent Conciliation Commission], the President of the [International] Court shall, upon the request of one of the Parties, nominate the President of the Permanent Commission.” Yearbook 1951–1952, p. 219.

77 It is, for instance, conceivable that the Bank and the President of the Court, in such cases as might arise between different states on the one hand, and the Bank on the other, would appoint the same persons as arbitrator and umpire.

78 Art. 13, par. 1, reads as follows: “If the President is a national of one of the parties to a case brought before the Court, he will abstain from exercising his functions as President in respect of that case. The same rule applies to the Vice-President or to any member of the Court who may be called to act as President.”

79 When the Court undertook to revise its Rules in 1926 Judge Pessôa suggested that the following provision should be inserted: “The Court as such cannot appoint arbitrators on the request of the persons concerned. The President may, however, do it, as well as any other member of the Court.” P.C.I.J., Series D, Acts and Documents concerning the Organization of the Court, Addendum to No. 2—Revision of the Rules of Court, p. 270. This proposal was discussed at the meeting of the Court on June 25, 1926 (ibid., p. 66). President Huber was not in favor of laying down any hard-and-fast rule. The Court shared this view, and Judge Pessôa withdrew his amendment, though he maintained his opinion that it was not part of the Court’s function as such to appoint arbitrators. (In practice, however, such functions are always entrusted to the President.) Generally speaking, and de lege ferenda, it would seem desirable to regulate this comparatively important function of the President. A special article of the Rules, not on the lines suggested by Judge Pessôa, but providing for the eventuality of such a function and the necessity of consulting the President in advance, might serve a useful purpose.

80 This is not a reference to the case of the refusal to appoint an umpire in the dispute between the Anglo-Iranian Oil Company and the Iranian Government (for this interesting case, see below, p. 402), but rather to the very different situation which might arise if, for instance, two unknown and obscure commercial companies should suddenly, and without previous consultation, approach the President with a request to appoint an umpire in somewhat dubious circumstances (e.g., in order to gain time in a period of financial stress, or to shelter behind the name of the President of the Court, with a view to postponing the opening of bankruptcy proceedings). The prestige and authority of the Court should not be cheapened. It is likely that the President would not blindly accept such a request and might even reject it altogether, although he might have some difficulty in obtaining the necessary information.

81 Since the last war, attention has been drawn to the need for a certain standardization in the drafting of certain provisions contained in international treaties. This would seem to be the best way to prevent differences as to the interpretation of these treaties from arising as a result of faulty drafting. On this problem, see Jenks, “The Need for an International Legislative Drafting Bureau,” this Journal, Vol. 39 (1945), pp. 163–179Google Scholar; Reiff, “A Form Book for Standard Treaty Clauses,” ibid., Vol. 40 (1946), pp. 640–644. See also the very useful compilation by the Legal Department of the United Nations, Handbook of Final Clauses, ST/LEG/1, Aug. 28, 1951. In a searching and stimulating report prepared for the 1954 session of the Institute of International Law, Guggenheim has put forward a proposal for a model (or standard) clause providing for the compulsory jurisdiction of the International Court, to be inserted in future conventions. Although the question here under review is not as important, it would seem that similar work might usefully be undertaken in connection with the drafting of a clause conferring upon the President the “extra-judicial” function referred to above.

82 See P.C.I.J., Series D, No. 6, Collection of Texts Governing the Jurisdiction of the Court, 4th ed. (1932), pp. 634–679. For the following years, see the Annual Beports of the Permanent Court, Series E, the last of which is the 16th Beport (Series E, No. 16) (1939–1945), pp. 407–413.

83 The two institutions are so much alike that many people—among whom are international lawyers of fame—tend to consider them as one and the same. Por instance, the annual articles which Judge Hudson devotes to the Court in this Journal are entitled: “The … Year of the World Court.” In 1946, the first article dealing with the new Court was entitled “The 24th Year of the World Court” (ibid., Vol. 40 (1946), pp. 1–52).

84 Judgment of July 22, 1952, I.C.J. Reports, 1952, pp. 93 ff. See Potter, “Anglo-Iranian Oil Company Case,” this Journal, Vol. 47 (1953), pp. 114–115Google Scholar; Hudson, “The 31st Tear of the World Court,” ibid., pp. 1–19.

85 See the complete text in I.C.J. Pleadings, Oral Arguments, Documents, Anglo-Iranian Oil Co. Case, p. 258.

86 A further sentence provided that if the President belonged to a country which was not qualified (i.e., if he was of Persian or British nationality, or of a nationality closely connected with either of these countries, such as belonging to a Dominion, a Protectorate, a colony, etc., of one of them), the appointment was to be made by the Vice President of the Court.

87 Art. 37: “Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.”

88 So far as is known, the correspondence exchanged between the company and the Vice President on this question has not been published. The above summary and the gist of the Vice President’s letter of Oct. 11, 1952, are taken from the Court’s Yearbook 1952–1953, p. 45.

89 As, for example, in the case of certain functions entrusted to the League of Nations, the succession to which was not provided for in the Charter or in any other instrument. An interesting example of this complex question appeared in the South West Africa case, in which the South African Government alleged that all mandates had lapsed with the dissolution of the League of Nations, and that inasmuch as the Government of the Union had not agreed to put any part of the territory of South West Africa under trusteeship in pursuance of the Charter (Art. 77), it was no longer bound by an international agreement in connection with this territory. In its Advisory Opinion of July 11, 1950, the Court rejected this contention, accepting the proposition that the United Nations was, for this purpose, the successor of the League of Nations. This was done by way of interpreting a complex network of treaty provisions. As for the succession of the International to the Permanent Court, the task was much easier and the Court was not faced with any problem in this connection, thanks to Art. 37 of the Statute (see I.C.J. Reports, 1950, pp. 128 ff. at p. 138).

90 For the United Kingdom argument on this point, see I.C.J. Pleadings, etc., Anglo-Iranian Oil Co. Case, pp. 74 ff., 341 ff., 537 ff., 650 ff. For a decisive refutation of this submission, see Judgment of July 1, 1952, I.C.J. Reports, 1952, pp. 111 ff.

91 The position here is somewhat similar to that underlying the decision of the Court in the Peace Treaties Case (second Advisory Opinion of July 18, 1950). I.C.J. Reports, 1950, p. 221 et seq. See above, p. 393.

92 Yearbook 1951–1952, p. 209, No. 62 ai.

93 123 League of Nations Treaty Series 307. See also P.C.I.J., Series D, No. 6, 4th ed. (1932), p. 625.

94 Yearbook 1951–1952, p. 218, No. 74.

95 This is the perfect example of a situation which may arise as a result of the faulty drafting of “dispute provisions.” We have seen how, by the simple and elementary device of denying the existence of a dispute concerning the “human rights provisions” of the peace treaties, and of refraining from appointing their own arbitrators, the three countries succeeded in frustrating one of the main purposes of the treaties, and the International Court, without of course condoning this action—the contrary was the case—was powerless, in view of the clear wording of the relevant texts, to grant redress in this complicated case.

96 Several other complications might be envisaged. Supposing the President of the Court were to overrule the objection of one of the states concerned, and were then to proceed to the appointment of an umpire, this very issue might then be raised before the arbitral tribunal (which would then have to adjudicate upon the validity of an act of the President of the Court) or, still worse, the issue could be made the object of an international case to be submitted to an ad hoc arbitral tribunal or even to the International Court itself in case the two states concerned were bound by the optional clause. Thus an ad hoc tribunal would have to adjudicate upon the validity of an official act, allegedly done ultra vires, of the holder of the highest judicial office in the world, or the Court itself would have to pronounce upon such an act. All three eventualities, but especially the first two, would be highly undesirable.