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Published online by Cambridge University Press: 12 April 2017
The advisability of permitting judges from litigant states to participate in hearings before international judicial tribunals has been a subject of disagreement on several occasions. It provoked serious controversy for the first time at the Hague Conference of 1907, when the proposed Court of Arbitral Justice was under discussion. Recently it has received even more attention in connection with the establishment of the Permanent Court of International Justice and in discussions of amendments to the Statute of the court and its rules.
1 See Brazil's proposal for a court, composed of one judge and one substitute judge appointed by each member-state, in Actes et documents de la deuxième conférence( Haye, La,1908),Vol.II, pp.620,1047 Google Scholar. By this plan the judges would be divided into three groups, each of which would sit for a term of three years; the representation of parties was assured by the provision that “all members of the Court shall have the right to sit at all sessions of the full Court, if they desire, even though they do not belong to the group specially called for that period.”
2 Ibid., Vol. II, pp. 1033. The project contained the following stipulation: “ If one of the parties to a dispute has not, according to the roster, a judge sitting in the Court, it can claim that the judge appointed by it shall take part in the judgment of the dispute. In this case it is determined by lot which of the judges on the roster for the given occasion is to withdraw. ”
3 Ibid., Vol. II, pp. 1031-32. During the earlier part of the conference proceedings, the British delegates were in agreement with the American against the use of national judges. It was the attitude of the German delegates, with whom other members of the conference were in agreement, that accounts for the reversal of the Anglo-American position, as indicated in the joint proposal of England, the United States and Germany.
4 Actes et documents de la deuxième conférence(La Haye, ,1908), Vol.II, p.1033.Google Scholar
5 Ibid., Vol. II, p. 1030.
6 Proceedings of the Hague Peace Conferences (Published by the Carnegie Endowment for International Peace), Vol. I, p. 361.
7 Ibid., p. 381.
8 The Committee of Jurists also had the draft convention of 1907 for the creation of an International Prize Court and the constitution of the Central American Court of Justice(1907) touse as bases of discussion, both of whichwerefavorable to the use of national judges.
9 The right was asserted in the plans submitted by Norway, Switzerland, M. Gram, and in the German-Austrian scheme. It was denied in Sweden's project. See Documents Presented to the Committee Relating to Existing Plans for the Establishment of a Permanent Court of International Justice, p. 85.
10 Ibid., p. 59.
11 The plans of the following were unfavorable: German-Austria, Switzerland, Denmark, Norway, Holland, and M. Nyholm. The use of national judges was advocated by the projects of Germany (1919), Italy (1919), and The Netherland's Commission, seeibid., p. 87.
12 Ibid., p. 85.
13 It was discussed at the 4th, 7th, 8th, 10th, 24th, 26th and 29th meetings of the committee. See Procès-Verbaux of the Proceedings of the Committee, pp. 121, 168, 197, 222, 528, 576, and 614.
14 For instance, M. Loder believed the personal qualifications of a judge and not his nationality should be stressed.Ibid., p. 121.
15 This was M. Loder's attitude. Ibid., p. 169.
16 Ibid., p. 172.
17 These attitudes were expressed by Lord Phillimore and Mr. Root. See ibid., pp. 533-34.
18 Procès-Verbaux of the Proceedings of the Committee, p. 721.
19 Ibid., p. 719.
20 Official Journal, Nov.-Dec. 1920, p. 16.
21 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 of International Justice, pp. 107, 130, 193, 206, 256.
22 Ibid., pp. 71,193, 251. An amendment to allow ad hoc judges to be selected from nomi-nees of states members of the League of Nations was submitted by the delegation of Argentina, but was not adopted. See ibid., p. 65.
23 Ibid., pp. 28, 193, 256. Several other proposed amendments were rejected. The subcommittee of the Third Committee of the Assembly decided that the substance of the Italian proposal, that ad hoc judges should not be counted towards a quorum, was generally accepted and that a formal amendment of Article 31 to this effect was not necessary. The International Labor Office offered an amendment denying litigant states the right to have judges who are their nationals in special chambers of the court. See ibid., pp. 74, 193.
24 Statute, Articles 16, 17 and 31.
25 Statute, Articles 20 and 31.
26 Statute, Articles 24 and 31.
27 It was not applied to the Chamber for Summary Procedure. Moreover, by Article 15 of the rules of the court, as adopted in 1922, it was impossible to alter the composition of that chamber for the purpose of providing national judges.
28 See Annex to the Report of the First Committee to the Assembly on the Question of the Revision of the Statute. Document No. A. 50, 1929. V. (C. A. S. C. 12).
29 Minutes of the Committee of Jurists, Session March 11-19, 1929, p. 123.
30 In its proposed form Article 31 reads as follows:“Judges of the nationality of each of the contesting parties shall retain their right to sit in the case before the Court.
“ If the Court includes upon the Bench a judge of the nationality of one of the parties, the other party may choose a person to sit as a judge. Such person shall be chosen preferably from among those persons who have been nominated as candidates as provided in Articles 4 and 5.
“If the Court includes upon the Bench no judge of the nationality of the contesting parties, each of these parties may proceed to select a judge as provided in the preceding paragraph.
“The present provision shall apply to the case of Articles 26, 27 and 29. In such cases, the President shall request one or, if necessary, two of the members of the Court forming the Chamber to give place to the members of the Court of the nationality of the parties concerned, and, failing such or if they are unable to be present, to the judges specially appointed by the parties.
“Should there be several parties in the same interest, they shall, for the purpose of the preceding provisions, be reckoned as one party only. Any doubt on this point is settled by the decision of the Court.
“Judges selected as laid down in paragraphs 2, 3 and 4 of this Article shall fulfil the conditions required by Articles 2, 17 (paragraph 2), 20, and 24 of this Statute. They shall take part in the decision on terms of complete equality with their colleagues.”
31 Publications of the Permanent Court of International Justice, Series D, No. 1, 2d ed., p. 24. The rules, as revised in February, 1931, are given here; also in Supplement to this JOURNAL, July, 1931 (Vol. 25), p. 152.
32 Article 25 of the Statute states that “The full Court shall sit except where it is expressly provided otherwise.” Undoubtedly, Article 31 regarding national judges constitutes an exception.
33 Publications of the Permanent Court of International Justice, Series D, No. 2. “Preparation of the Rules of the Court.” Jan. 30-Mar. 24, 1922, p. 97.
34 Idem.
35 The rules of the court, as revised in February, 1931, may be found in Publications of the Permanent Court of International Justice, Series D, No. 1, 2d ed.; also in Supplement to this JOURNAL, July, 1931, p. 152.
36 38 Rules, Article 13.
37 Statute, Article 31.
38 Rules, Article 31.
39 Rules, Article 30.
40 Publications of the Permanent Court of International Justice, Series E, No. 4, p. 73.
41 Article 36 of the draft scheme for a Permanent Court of International Justice, as submitted by the Committee of Jurists, contained a provision that when the court gives “an opinion upon a question which forms the subject of an existing dispute, it shall do so under the same conditions as if the case had been actually submitted to it for decision.” See Proc⃨s-Verbaux of the Proceedings of the Committee, p. 732. For the action of the Assembly in deleting the provisions of the Statute dealing with advisory opinions, see Documents Concerning the Action Taken by the Council, etc., p. 156.
42 Publications of the Permanent Court of International Justice, Series E, No. 4, p. 74.
43 This attitude was taken by Judge Weiss and Judge Moore.
44 In accordance with an Assembly resolution of 1922, it has been the practice to pay the travelling expenses of national judges and to allow them a daily allowance. See Résolutions et uoeux adoptés par L'Assemblée au cows de sa troisième session, 1922, pp. 11-12.
45 Publications of the Permanent Court of International Justice, Series E, No. 4, p. 74.
46 Ibid., p. 76.
47 Publications of the Permanent Court of International Justice, Series E, No. 4, p. 78.
48 Minutes of the Committee of Jurists, March, 1929, p. 70.
49 For an able discussion of the question as to whether, under Article 10 of the Statute, the Permanent Court of International Justice may include as judges a Dominion national and a national of the British Empire who is not a citizen of a Dominion, elected for the same term, see Poliak, W., “The Eligibility of British Subjects as Judges of the Permanent Court of International Justice,” in this JOURNAL, Vol. 20 (1926), p. 714. The author of that article states several points which should be taken into consideration in any attempt to provide an authoritative interpretation of Article 10.
50 Ibid., pp. 70–72, 84-87. M. Raestad agreed with Sir Cecil Hurst's position, but believed that the Committee of Jurists had no authority to interpret the Statute. M. Politis stated that, in his opinion, the Dominions would be adequately represented by the English judge and that the acceptance of Sir Cecil Hurst's interpretation would operate to discourage states from signing the optional clause. M. Fromageot took the position that a compromise arrangement could be agreed upon which would allow the Dominions to have ad hoc judges only when the questions in dispute were not of interest to the entire Empire. The interpretation suggested by Sir Cecil Hurst seemed dangerous to M. lto. From a purely legal point of view, M. Gaus would not acquiesce in Sir Cecil Hurst's interpretation.
51 Prior to January 1, 1931, the Chamber of Summary Procedure had dealt with only two cases, both of which related to the interpretation of Article 179 of the Treaty of Neuilly. These cases were heard in 1924-25, before the system of national judges was applied to the chamber. See Publications of the Permanent Court of International Justice, Series A, Nos. 3-4. The special chambers for labor cases and for disputes regarding communication and transit have not heard any cases.
52 For those seven, see Publications of the Permanent Court of International Justice, Series A, Nos. 6, 7, 9, 13, 15, 17, 20.
53 This was the case regarding the Serbian loans issued in France. See ibid., Series A, No. 20. Deputy Judge Yovanovitch was unable to be present on behalf of the Serb-Croat-Slo- vene State, and therefore M. Novacovitch was selected.
54 These cases were those involving Serbian and Brazilian loans issued in France. Ibid., Series A, Nos. 20 and 21.
55 In the S. S. Wimbledon case and the case regarding the jurisdiction of the International Commission of the Oder, this was true. Ibid., Series A, Nos. 1 and 23.
56 The six states were Great Britain, France, Czechoslovakia, Denmark, Germany and Sweden. Owing to the death of Judges Weiss and Finlay, France and Great Britain had no judges in court. Judge Nyholm of Denmark was the only judge from the six states acting against Poland.
57 For the orders of the court issued prior to Jan. 1,1931, see ibid., Series A, Nos. 8,12,14, 16, 18, 19, 22, and 24.
58 Publications of the Permanent Court of International Justice, Series A, No. 22.
59 Ibid., Series A, No. 24.
60 Publications of the Permanent Court of International Justice, Series B, No. 14. The proceedings for this advisory opinion were begun on Dec. 9,1926, before the rules of the court were amended to permit the appointment of ad hoc judges.
61 The three states in the same interest had MM. Anzilotti and Finlay, regular judges, on the bench. Judge Weiss of France was unable to be present.
62 bid., Series B, No. 15. Danzig appointed M. Bruns, and Poland selected M. Ehrlick.
63 Ibid., Series C, No. 15-1, p. 10.
64 Ibid., Series B, No. 17.
65 Ibid., Series B, No. 18.
66 New York Times, July 21,1931, p. 1.
67 M. De Lapradelle was opposed to the use of national judges empowered to give dissenting opinions, for this reason. Proefès-Verbaux of the Proceedings of the Committee, p. 331.
68 Ibid., p. 533.
69 In a note published in the British Yearbook of International Law, 1930, p. 182, Mr. H. Lauterpacht takes an unfavorable attitude toward the system of national judges on account of the frequent dissent by them to decisions injurious to their respective states.
70 Publications of the Permanent Court of International Justice, Series A, No. 5.
71 Ibid., Series A, No. 13. The national judges in this case were M. Ehrlick (Poland) and M. Rabel (Germany).
72 Publications of the Permanent Court of International Justice, Series A, No. 15.
73 Ibid., Series B, No. 14.
74 Ibid.,Series B, No. 15.
75 Ibid., Series B, No. 17.
76 For advisory opinion No. 4, relating to the nationality decrees in Tunis and Morocco, France and Great Britain were represented on the bench by Judge Weiss and Lord Finlay, respectively. Judge Weiss agreed with the opinion of the court, which was in opposition to the contentions of the French Government. See ibid., Series B, No. 4. In advisory opinion No. 12, dealing with the frontier between Turkey and Iraq, Great Britain was represented in court by Lord Finlay, who agreed in the opinion rendered. See ibid., Series B, No. 12.
77 Ibid., Series A, Nos. 22 and 24.
78 This has been true in eight of the judgments of the court, but in none of the advisory opinions. Ibid., Series A, Nos. 1, 2, 10, 11, 12, 20, 21, and 23.
79 Ibid., Series A, No. 10.
80 In judgment No. 2, regarding the Mavrommatis Palestine Concessions, the decision was taken by a vote of seven against five. The vote of ad hoc Judge Caloyanni of Greece was cast in favor of the decision rendered. Ibid., Series A, No. 2.
81 Publications of the Permanent Court of International Justice, Series A, No. 24.
82 M. Rostoworowski has served as ad hoc judge for Poland four times in judgments Nos. 6, 7,12 and 16. M. Ehrlick has been appointed three times by Poland in judgments Nos. 8,11 and 13, and once for advisory opinion No. 15. Germany has appointed M. Schücking in judgments Nos. 6, 7, 8, 11 and 13. Greece selected M. Caloyanni for judgments Nos. 2, 5, and 10, and for advisory opinion No. 17.
83 These were Feïzi-Daïm Bey (judgment Nq. 9), M. Novacovitch (judgment No. 14), M. Bruns (advisory opinion No. 15), and M. Papazoff (advisory opinion No. 17).
84 M. De Lapradelle believed it unwise to allow judges to act for single cases. Procès- Verbaux of the Committee, p. 172.
