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The Third Year of the Permanent Court of International Justice

Published online by Cambridge University Press:  04 May 2017

Manley O. Hudson
Manley O. Hudson*
Affiliation:
Harvard Law School
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Extract

As the Permanent Court of International Justice completes the third year of its activities, its r61e in the international life of our time and the prospect for its cumulating contribution to international law begin to stand out more clearly. During 1920, while its Statute was being drafted, the general conception as to its functions was more or less nebulous. In 1921, while the protocol promulgating the Statute was being ratified and while the judges were being chosen, doubts were still being entertained as to the need for the court and the opportunities which would be permitted to it. In 1922, the organization of the court, the promulgation of the rules of procedure and the handing down of three advisory opinions served to beget confidence. The year 1923 was such a busy one for the court, and the satisfaction with its five advisory opinions and its judgment in the Wimbledon case was so general that lawyers began to foresee great activities in store for it, and foreign offices began to count its existence a factor in current international affairs.

Type
Research Article
Information
American Journal of International Law , Volume 19 , Issue 1 , January 1925 , pp. 48 - 75
Copyright
Copyright © by the American Society of International Law 1925

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References

1 See Hudson, Manley O., “The Permanent Court of International Justice,” 35 Harvard Law Review 245 (January, 1922).Google Scholar

2 See Hudson, Manley O., “The First Year of the Permanent Court of International Justice,” this Journal, Vol. 17, p. 15 (January, 1923);Google Scholar A. Hammarskjöld, “The Early Work of the Permanent Court of International Justice,” 36 Harvard Law Review 704 (April, 1923).Google Scholar

3 See Hudson, Manley O., “The Second Year of the Permanent Court of International Justice,” this Journal, Vol. 18, p. 1 (January, 1924).Google Scholar

4 Epitacio da Silva Pessôa, born in 1865, was elected judge on September 10, 1923. He was formerly President of the United States of Brazil and had served as a judge of the Federal Tribunal of Brazil.

5 The judgment and the various dissenting opinions are published in the Publications of the Court, Series A, No. 2.

6 League of Nations Official Journal, August, 1922, p. 1012.Google Scholar

7 See the Judgment, p. 41.

8 Ibid., p. 85.

9 Ibid., p. 91.

10 Ibid., p. 19.

11 The text of the protocol is printed in the British Parliamentary Papers, Treaty Series, No. 16 (1923), Cmd. 1929, pp. 203–211.Google Scholar

12 107 British and Foreign State Papers 656; Martens, Nouveau Recueil Général, 3d ser., Vol. 8, p. 16.Google Scholar

13 The texts of these two protocols are not readily available.

14 League of Nations Official Journal, July, 1924, p. 1007.Google Scholar See League of Nations Document C. 293. M. 94. 1924. VII for a history of the question before the Conference of Ambassadors.Google Scholar

15 League of Nations Official Journal, July, 1924, p. 920.Google Scholar

16 Publications of the Court, Series B, No. 9.

17 This is refutation of a popular misconception that Article 59 of the court’s Statute forbids the citation of the court’s opinions as precedents. Of course that article merely adopts the continental European attitude toward res judicata. See the writer’s explanation in 35 Harvard Law Review 256, and the explanation by Judge de Bustamante in 4 Revista de Derecho Internacional (September, 1923), p. 40.

18 British and Foreign State Papers, Vol. 112, pp. 844–845.Google Scholar Only the French text is authoritative. M. Gustave Ador appointed M. Albert Wuarin as arbitrator. For a collection of the documents relating to this judgment, see Publications of the Court, Series C, No. 6.

19 Treaty of Peace with Turkey and Other Instruments, British Treaty Series, No. 16 (1923), Omd. 1929, p. 201.Google Scholar The original was in French. For the minutes of the Commission on the Regime of Foreigners at the Lausanne Conference, see British Parliamentary Papers, Turkey, No. 1 (1923), Cmd. 1814, pp. 465–535.Google Scholar

20 Miss Frances Kellor, in a recent work entitled “Security Against War,” Vol. II, p. 460, criticizes this action as intervention “in the local affairs of a state” over which the court “has no judicial control.” Her comment seems to neglect the fact that the court was entirely free to accept or decline this responsibility.Google Scholar

21 Document A. 2 (b). (2). 1924. X.

22 Ibid., p. 8.

23 Document C. 374. M. 136. 1924. X.

24 From Document A. 132. 1924. V (annex). See also League of Nations Official Journal, spec. supp. 21, pp. 35–7.Google Scholar

25 See George, A. Finch, “The Dawes Report on German Reparation Payments,” this Journal, Vol. 18, p. 419.Google Scholar

26 See George, A. Finch, “The London Conference on the Application of the Dawes Plan,” Google Scholar ibid., p. 707.

27 League of Nations Official Journal, Dec, 1923, p. 1521.Google Scholar

28 Verbatim Record of the Fifth Assembly, 6th Plenary Meeting, p. 3.

29 In collaboration with the Third Committee, Document A. 135 (1). 1924. IX. The report states:

“Careful consideration of the article has shown that it is sufficiently elastic to allow of all kinds of reservations. Since it is open to the States to accept compulsory jurisdiction by the Court in respect of certain of the classes of dispute mentioned and not to accept it in respect of the rest, it is also open to them only to accept it in respect of a portion of one of those classes; rights need not be exercised in their full extent. In giving the undertaking in question, therefore, States are free to declare that it will not be regarded as operative in those cases in which they consider it to be inadmissible.

“We can imagine possible, and therefore legitimate, reservations, either in connection with a certain class of dispute, or, generally speaking, in regard to the precise stage at which the dispute may be laid before the Court. While we cannot here enumerate all the conceivable reservations, it may be worth while to mention merely as examples those to which we referred in the course of our discussions.

“From the class of disputes relating to ‘the interpretation of a treaty’ there may be excluded, for example, disputes as to the interpretation of certain specified classes of treaty, such as political treaties, peace treaties, etc.

“From the class of disputes relating to ‘any point of international law’ there may be excluded, for example, disputes as to the application of a political treaty, a peace treaty, etc., or as to any specified question or disputes which might arise as the outcome of hostilities initiated by one of the signatory States in agreement with the Council or the Assembly of the League of Nations.

“Again, there are many possible reservations as to the precise stage at which a dispute may be laid before the Court. The most far-reaching of these would be to make the resort to the Court in connection with every dispute in respect of which its compulsory jurisdiction is recognized contingent upon the establishment of an agreement for submission of the case which, failing agreement between the parties, would be drawn up by the Court itself, the analogy of the provisions of the Hague Convention of 1907 dealing with the Permanent Court of Arbitration being thus followed.

“It might also be stated that the recognition of the compulsory jurisdiction of the Court does not prevent the parties to the dispute from agreeing to resort to a preliminary conciliation procedure before the Council of the League of Nations or any other body selected by them, or to submit their disputes to arbitration in preference to going before the Court.

“A State might also, while accepting compulsory jurisdiction by the Court, reserve the right of laying disputes before the Council of the League with a view to conciliation in accordance with paragraphs 1–3 of Article 15 of the Covenant, with the proviso that neither party might, during the proceedings before the Council, take proceedings against the other in the Court.

“It will be seen, therefore, that there is a very wide range of reservations which may be made in connection with the undertaking referred to in Article 36, paragraph 2. It is possible that apprehensions may arise lest the right to make reservations should destroy the practical value of the undertaking. There seems, however, to be no justification for such misgivings. In the first place, it is to be hoped that every Government will confine its reservations to what is absolutely essential. Secondly, it must be recognized that, however restrictive the scope of the undertaking may be, it will always be better than no undertaking at all.”

30 Document C. L. 142.1924. V.

31 Series D, No. 4. See for the texts of the London Agreements, Series D, No. 4, addendum.

32 U. S. Treaty Series, No. 682.

33 Ibid., No. 674.

34 Ibid., No. 679.

35 Ibid., No. 683.

36 Ibid., No. 680.

37 Ibid., No. 678.

38 U. S. Treaty Series, No. 676.

39 Ibid., No. 689.

40 Ibid., No. 694.

41 Ibid., No. 698.

42 Ibid., No. 693.

43 Ibid., No. 702.

44 League of Nations Treaty Series, Vol. 12, pp. 272–293.Google Scholar For comment on this treaty, see Gossweiler. L’Arbitrage International avant 1914 après 1919, pp. 136 ff.Google Scholar

45 Le Temps, November 1, 1924, p. 6.Google Scholar

46 Records of the Fourth Assembly, pp. 115–116.

47 Document A. 54. 1924. VII.

48 Verbatim Record of Fifth Assembly, Sixteenth Plenary meeting.

49 For instance, in the conduct of the Corfu crisis in 1923. See Manley 0. Hudson, “The Permanent Court of International Justice and World Peace,” Annals of the American Academy of Political and Social Science, Vol. CXIV, p. 122 (July, 1924).Google Scholar

50 See the Report of the Fourth Session of the International Labor Conference (1922), Vol. II, pp. 645–6 for the Director’s comment on the opinion.Google Scholar A difficulty of a different nature arose in 1923, with reference to the credentials of a Japanese delegate. See Report of the Fifth Conference, 1923, Vol. I, pp. 68 ff.Google Scholar

51 Report of the Fourth Session of the International Labor Conference (1922), Vol. II, pp. 704–5.Google Scholar

52 Report of the Fourth Session of the International Labor Conference, Vol. I, p. 98.Google Scholar The statement was made in French.

53 See this Journal, Vol. 18, p. 6, note.Google ScholarPubMed

54 Journal Officiel de la Ripublique Frangaise, Dec. 21,1923, pp. 11846–11847.Google Scholar

55 League of Nations Official Journal, Supp. No. 11, p. 29.Google Scholar

56 See this Journal, Vol. 18, p. 10.Google ScholarPubMed

57 Publications of the court, Series A, No. 1, p. 33.

58 In the Virginia v. West Virginia controversy, the United States Supreme Court gave judgment for $12,393,929.50 against West Virginia in June, 1915. 238 U. S. 202. The judgment was not satisfied until 1919 or 1920.

59 See this Journal, Vol. 18, pp. 13 ff.

60 League of Nations Official Journal, November, 1923, p. 1333.Google Scholar

61 Ibid., February, 1924, p. 359.

62 Ibid., p. 360.

63 League of Nations Official Journal, April, 1924, p. 548.Google Scholar

64 The method is set forth in the ibid., July, 1924, pp. 1020–1. The calculation was based on 264 individual cases-230 Rentengutsvertrdge and 34 Pachtvertradge.

65 Ibid., p. 926.

66 League of Nations Official Journal, November, 1923, pp. 1333, 1489.Google Scholar

67 Ibid., p. 1490.

68 Ibid., February, 1924, pp. 351, 406.

69 League of Nations Official Journal, April, 1924, p. 722.Google Scholar

70 Ibid., p. 543.

71 Council/30th Session/P. V. 7 (1).

72 League of Nations Official Journal, February, 1924, pp. 357, 364.Google Scholar

73 League of Nations Official Journal, April, 1924, p. 521.Google Scholar

74 C. 531. M. 144. 1924. VII, p. 2.Google Scholar

75 Council/30th Session/P. V. 19/1.

76 Senate Resolution 29, 68th Cong., 1st Sess.

77 Senate Resolution 204, 68th Cong., 1st Sess.

78 Senate Joint Resolution 122, 68th Cong., 1st Sess. To accompany this, Senator Lodge presented Document No. 107, 68th Cong., 1st Sess., entitled: “Organization of the World for Peace–a Plan by which the United States may coöperate with other nations to achieve and preserve the Peace of the World,” by Chandler, P. Anderson.Google Scholar

79 Senate Resolution 220, 68th Cong., 1st Sess.

80 Senate Resolution 233, 68th Cong., 1st Sess. Senator King had submitted an earlier resolution on December 10, 1923. Senate Resolutions 32 and 36, 68th Cong., 1st Sess.

81 Senate Resolution 234, 68th Cong., 1st Sess. Also printed in Document No. 116, 68th Cong., 1st Sess.

82 Report No. 634, 68th Cong., 1st Sess. Reference should also be made to a resolution introduced in the House of Representatives on April 17, 1924, by Mr. Moore (Virginia), House Resolution 258, 68th Cong., 1st Sess.

83 New York Times, December 4, 1924, p. 8.Google Scholar

84 Republican Campaign Text Book, 1924, p. 67.Google Scholar

85 Democratic Campaign Book, 1924, p. 40.Google Scholar

86 Massachusetts Law Quarterly, May, 1924, p. 24.Google ScholarPubMed