Hostname: page-component-78c5997874-4rdpn Total loading time: 0 Render date: 2024-11-14T23:08:45.875Z Has data issue: false hasContentIssue false
  • English
  • Français

The Interpretation of Treaties by The Permanent Court of International Justice1

Published online by Cambridge University Press:  04 May 2017

Charles Cheney Hyde
Charles Cheney Hyde*
Affiliation:
Columbia University
Get access Rights & Permissions [Opens in a new window]

Extract

The pages that follow embody the fruits of an examination of the work of the Permanent Court of International Justice as an interpreter of treaties. For sake of clearness and simplicity the pertinent cases are dealt with in a few familiar groups.

Type
Research Article
Information
American Journal of International Law , Volume 24 , Issue 1 , January 1930 , pp. 1 - 19
Copyright
Copyright © American Society of International Law 1930

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.)

Footnotes

1

A French translation appears in Revue de Droit International for January, 1930.

References

2 Publications of the Permanent Court of International Justice, Series A, No. 1, pp. 24-25.

3 See oral argument of M. Basdevant, with respect to circumstances leading up to the drafting of the articles relating to the Kiel Canal. Publications of the Permanent Court of International Justice, Series C, No. 3, Vol. I, 212-214. Cf. statement in argument of M. Scbiffer, id., 342.

4 Publications of the Permanent Court of International Justice, Series A, No. 1, p. 36.

5 It was declared that the words of Article 380 “nations at peace with Germany” by no

6 Id., p. 40

7 See oral argument of M. Basdevant, Publications of the Permanent Court of International Justice, Series C, No. 3, Vol. 1,197, and 198 (citing Vattel, Le Droit des Gens, Vol. II, Chap. 17, paragraph 263, and Geffcken, in his remarks on Heffter, in Le Droit International de l’Europe, 4th French ed., par. 95, p. 214); also M. Basdevant's language at p. 246, where he declared: “The text is absolutely clear; it needs no interpretation but a natural one, a logical one, made according to common sense. A restrictive interpretation is not possible; any restrictive interpretation would be in contradiction with the plain meaning of the text, and would introduce changes into it which would be in contradiction with the purpose of the article.”

Cf. Oral argument of M. Schiffer, id., p. 316-316.

8 See Mémoire of the French Government, of June 13,1922, Publications of the Permanent Court of International Justice, Series C, No. 1, p. 540, 542; also Oral argument of M. de Lapradelle, id., 153, pp. 174-175

9 Publications of the Permanent Court of International Justice, Series B, Second Advisory Opinion, rendered Aug. 12, 1922, p. 23.

10 See Publications of the Permanent Court of International Justice, Series B, No. 13, p. 22. This opinion, was rendered on July 23, 1926

11 This opinion was rendered on Feb. 21, 1925. Publications of the Permanent Court of International Justice, Series B, No. 10

12 It was said in this connection: “ As the court has already had occasion to point out in its judgment in the case of the Wimbledon,‘ the right of entering into international engagements is an attribute of state sovereignty.’ In the present case, moreover, the obligations of the contracting states are absolutely equal and reciprocal.” Id., p. 21.

13 Publications of the Permanent Court of International Justice, Series B, No. 7. The opinion was rendered on Sept. 15, 1923.

14 The first paragraph of Article 4 of the Minorities Treaty was as follows: “Poland admits and declares to be Polish nationals ipso facto and without the requirement of any formality persons of German, Austrian, Hungarian or Russian nationality who were bom in the said territory of parents habitually resident there, even if at the date of the coming into force of the present treaty they are not themselves habitually resident there.” Id., p. 13.

15 Id., p. 20.

16 Thus it was declared by the court that the Polish assertion was in contradiction of the terms of the provision which it claimed to interpret, and was not supported by the precedents supplied by international practice; that it imposed a useless condition not to be found in any treaty of annexation previously concluded; that the inquiry which it prescribed would be arbitrary, especially in view of the first paragraph of Article 4 of the treaty. See also, Oral argument of M. Schiffer and documents cited by him, in Publications of the Permanent Court of International Justice, Series C, No. 3, Vol. I, pp. 819-822.

17 Publications of the Permanent Court of International Justice, Series B, No. 11, p. 7.

18 Id., p. 39.

19 In the course of its fourth advisory opinion, rendered Feb. 7, 1923, in respect to the dispute between France and Great Britain as to the nationality decrees issued in Tunis and Morocco, the court said: “ It must not, however, be forgotten that the provision contained in paragraph 8, in accordance with which the Council, in certain circumstances, is to confine itself to reporting that a question is, by international law, solely within the domestic jurisdiction of one party,is an exception to the principles affirmed in the preceding paragraphs and does not therefore lend itself to an extensive interpretation.” (Publications of the Permanent Court of International Justice, Series B, No. 4, p. 25.)

20 Publications of the Permanent Court of International Justice, Series B, No. 12. The opinion was rendered on Nov. 21, 1925.

21 Id., p. 25.

22 Publications of the Permanent Court of International Justice, Series A, No. 23. The judgment was rendered on Sept. 10, 1929.

23 Publications of the Permanent Court of International Justice, Series A, No. 23, p. 24.

24 Id., p. 25

25 Id., p. 26

26 Id.

27 Publications of the Permanent Court of International Justice, Series A, No. 23, pp. 26-28.

28 Id., p. 29.

29 The court added: “Besides the arguments already considered, the parties submitted several others during the written and oral proceedings drawn from certain provisions of the Peace Treaties concerning other rivers, in particular the Moselle and the Danube, and from the proceedings for the establishment of the Definitive Statute of the latter river. The court, being of opinion that these arguments, drawn from independent provisions and diplomatic negotiations, cannot modify (ne saurient modifier) the conclusion which it has reached by means of a direct interpretation of the provisions applicable in the particular case, does not think it necessary to deal with these arguments.” Id., p. 30. The court made, however, one exception, and declared that the reply of the Allied and Associated Powers to the Austrian delegation which was relied upon by the Polish Government did not afford “any sufficient ground” for an interpretation other than that made by the court. Id., pp. 30-31.

30 Publications of the Permanent Court of International Justice, Series B, No. 14, pp. 28 and 46.

31 Even the order of Aug. 20, 1929, annexed to the sixteenth judgment (and which is later examined in the text) reveals no disposition to create a rule which might not under similar circumstances be applied in a case where a treaty registered the agreement of but two contracting states. Publications of the Permanent Court of International Justice, Series A, No. 23, p. 41

32 Publications of the Permanent Court of International Justice, Series A, No. 9. The judgment was rendered on July 26, 1927

33 Id.,p. 25.

34 Publications of the Permanent Court of International Justice, Series A, No. 9. The court said in this connection: “ An interpretation which would confine the court simply to recording that the convention had been incorrectly applied or that it had not been applied, without being able to lay down the conditions for the re-establishment of the treaty rights affected, would be contrary to what would, prima facie, be the natural object of the clause.”

35 Publications of the Permanent Court of International Justice, Series B, No. 13, p. 18.

36 Publications of the Permanent Court of International Justice, Series B, No. 16, pp. 18, 24 and 26

37 Id., p. 20

38 Publications of the Permanent Court of International Justice, Series A, No. 2, Judgment No. 2, p. 19.

39 Publications of the Permanent Court of International Justice, Series A, No. 2, Judgment No. 2, p. 20.

40 Id., p. 70. His views are of interest. In the course of his dissenting opinion (id., pp. 69-70) he said that the precise meaning of the phrase “ public ownership or control in Article II was clearly shown by the second paragraph of the article which authorized the Jewish agency, mentioned in Article 4 of the mandate, to construct and operate public works, services and utilities, in so far as these matters are not directly undertaken by the administration.” He declared that this was undoubtedly what the words meant in the English text; and expressing his own individual opinion derived from a studious comparison of the two texts, he was strongly inclined to believe that the French text was a so-called “literal” translation of the English text, and was intended to mean the same thing. He said, however, that a “literal” translation was often only a verbal imitation, which, if taken alone, might be so interpreted as to pervert or even destroy the meaning of the other text. He added: “But I take the two texts as they stand, discarding neither in favor of the other; and, without discussing the question whether a mandate, which is in a sense a legislative act of the Council, is on the same footing as a treaty, I accept for the present case the rules laid down by authorities on international law for the interpretation of treaties.” Thereupon he cited Bonfils, as laying down the rule that each lause should be interpreted in the sense which best reconciles the rights and duties of the contracting parties. (Bonfils, Manuel de Droit int. public, 7th ed. by Fauchille, Paris, 1914, p. 571.); and also Rivier as declaring that it is necessary before all to ascertain the common intention of the parties— “ id quod actum est,” and as pointing out another rule to the effect that, if there is a difference as to the sense which usage gives to the text, preference is given to that of the country which is bound. (Rivier, Principes du Droit des Gens, Paris, 1896, Vol. 2, pp. 122, 123-125).

41 The court was not obliged in its second advisory opinion concerning the competence of the International Labor Organization, to make application of the principle quoted in the text; for it found that the function of the words “industry” and “industriel” was not essentially unlike that of the words “industry” and “industrial” employed in the English version of the treaty. The court expressed the view that the French words, though commonly used in a relatively narrower sense than was the case with respect to the corresponding words in the English language, might, nevertheless, be employed, as in the English, to include that form bf production known as agriculture. That being the case, it was declared that “ the context is the final test, and in the present instance the court must consider the position in which the words are found and the sense in which they are employed in Part XIII of the Treaty of Versailles.“ (Publications of the Permanent Court of International Justice, Series B, No. 2, p. 35.)

42 Tenth Advisory Opinion concerning the Exchange of Greek and Turkish Populations, Publications of the Permanent Court of International Justice, Series B, No. 10, p. 18.

43 See “Additional Observations” byde Lapradelle, M., of July 14, 1922, Publications of the Permanent Court of International Justice, Series C, No. 1, pp. 182, 187-189. Google Scholar Cf. “Additional Observations” by Thomas, M. of the International Labor Organization, of July 20, 1922, Id., pp. 270, 274-281.Google Scholar

The French contention was, to quote the language of the court,“ in substance, that, as the terms of the treaty clearly excluded the claim of competence, there was no room for the consideration of extrinsic evidence to the contrary, and that powers who took no part in the preparatory work were invited to accede to the treaty as it stood, and did so accede.” Publications of the Permanent Court of International Justice, Series B, No. 2, p. 41.

44 Publications of the Permanent Court of International Justice, Series B., No. 2. The court did not in its fourth advisory opinion concerning the nationality decrees in Tunis and Morocco, refer to the evidence offered in behalf of the French Government respecting the history of Paragraph 8, Article 15 of the Covenant of the League of Nations which was the subject of interpretation. (See Argument of M. de LapradeUe, Publications of the Permanent Court of International Justice, Series C, No. 2, Extraordinary Session, pp. 71 and 75.) From its silence there is not to be imputed to the court & conclusion other than that it was not convinced that this unrejected evidence proved the point for which it was offered. Declared Sir E. Pollock in the course of his oral argument in this case: “To those who are accustomed to what I may call the Anglo-Saxon procedure, a reference to the history or debates concerning the origin of a clause is inadmissible. This observation fails to be made, even more forcibly, where the commentators were not parties to the drafting of the clauses.” (Publications of the Permanent Court of International Justice, Series C, No. 2, p. 197.)

45 Publications of the Permanent Court of International Justice, Series A, No. 10, p. 16.

46 Id.

47 Id., p. 17.

Declared Judge Moore, in the course of his dissenting opinion: “ But the passages cited do not in my opinion have the effect which it is sought to ascribe to them. In so saying I am not to be understood as expressing an opinion on the question whether such evidence is admissible for the purpose of throwing light upon the interpretation of treaties. The language of Article 15 is simple and plain and does not stand in need of interpretation from any source outside the terms of the treaty itself.” Id., p. 67.

48 Publications of the Permanent Court of International Justice, Series B, No. 12, p. 19- The court added in this connection: “Subsequently, it may consider whether and if so, to what extent—factors other than the wording of the treaty must be taken into account for this purpose.” Id.

49 Id., p. 22

50 Id ., p. 23.

In the course of his oral argument in this case on October 26,1925, Sir Douglas Hogg declared: “ In our submission the text of the Treaty of Lausanne is clear and free from ambiguity, so that the ruling which His Majesty's Government asks the court to give in the present case is that where the meaning of a treaty provision and the intention of the parties appear from the final text to which they have affixed their signatures, no recourse can be had to preliminary discussions for the purpose of contradicting or adding to that text.” (Publications of the Permanent Court of International Justice, Series C, No. 10, pp. 18, 22.)

51 Id.

52 The opinion was rendered on Dec. 8, 1927. Publications of the Permanent Court of International Justice, Series B, No. 14.

53 Id., p. 28.

54 Id., p. 31.

The court also declared: “ The history of the relevant articles of the Treaty of Peace of Versailles has also been invoked on behalf of Boumania in this connection. The record of the work preparatory to the adoption of these articles being confidential and not having been placed before the court by, or with the consent of, the competent authority, the court is not called upon to consider to what extent it might have been possible for into take this preparatory work into account.” Id., p. 32.

55 Judgment No. 16, Publications of the Permanent Court of International Justice, Series A, No. 23, p. 8.

56 Id., Annex 3, p. 41

57 Id., p. 42.

The court adverted also the fact that the agent of the Polish Government had stated that he deferred “ to the wishes of the six governments to the effect that no account shall be taken of the passages in question,” and that he did not insist upon making use of those passages in his defense, adding however that “ the Polish Government reserves the right in the argument on the merits to avail itself of references to or citations from” the preparatory work“ in so far as it has already been made public.” (Id.)