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Spiermann, Ole
2005.
International Legal Argument in the Permanent Court of International Justice.
Article contents
The Second Year of the Permanent Court of International Justice
Published online by Cambridge University Press: 04 May 2017
Extract
A year ago, when an attempt was made in this Joubnal to describe the inauguration of the Permanent Court of International Justice and the beginning of its work,1 it seemed that a new experiment in international relations was on trial. But such has been its progress in two years that the court now appears to be one of the established institutions in our international life. The Foreign Offices have begun to regard it as a sort of international fixture. It is fast accumulating a record of achievement indispensable to the international law of the future, and the court now bids fair to be permanent in influence as in name.
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References
1 “The First Year of the Permanent Court of International Justice,” byHudson, Manley O,this Journal, Vol. 17 (1923), p. 15.Google Scholar
2 “The Permanent Court of International Justice,” byHudson, Manley O. , 35 Harvard Law Review 245 (January, 1922). See, however,CrossRefGoogle Scholar Mr., Hammarskjold”svaluable article,“The Early Work of the Permanent Court of International Justice,”36 Harvard Lav Review 704.Google Scholar
3 The record of the early terms of the United States Supreme Court is in 2 Dallas' Reports, 399 ff. Professor Borchard seems to deny that this record affords any analogy. See Proceedings of Academy of Political Science in the City of New York, Vol. X, p.137.
4 The agreement for the Norwegian-American arbitration was signed on June 30,1921,before the judges of the new court had been elected; and strictly it may be contended that that case was not before a tribunal of the Permanent Court of Arbitration.
5 But see “Strength and Weakness of the New International Court”, by ProfessorBorchard, Edwin M.,4 Illinois Law Quarterly 67,69(February,1922).Google Scholar Mr. Borchard's suggestion that as the judges' views become known, governments will be more reluctant to submit cases to the court, seems to neglect the fact that the opinions and decisions are not handed down in the names of the particular judges.
6 For comment on these opinions, reference may be made to the earlier article in this Joubnal, Vol. 17(1923), pp. 18-18, and to Mr., Hammarskjöld's article in36 Harvard Law Review 704,717 Google Scholar. See also“L’Organisation Permanente du Travail, Sa Competence en Maiihre Agricole,- byGuerreau, Maurice ,29 Revue Générale de Droit International Public,223;Google Scholar and especially the discussion by ProfessorMahaim, in3 Revue de Droit International et de législation Comparée, 3d ser., p. 503 Google Scholar, and by SirHurst, Cecilinthe British Year Book of International Law far1928-24, P- 172.Google Scholar
7 League of Nations Official Journal, November,1922, p. 1207.
8 Bourgeois, M.was named in theresolution as printed in the League of Nations Official Journal, 1922, p. 7.Google Scholar
9 League of Nations Official Journal, November, 1922, p. 1209.
10 The correspondence between the Secretary General and the Registrar is published in Acts and Documents, No. 2, pp.248 ff. (This volume is in the publications of the court,Series C.) .
11 Acts and Documents, No. 2, p.263.
12 These documents have not been published by the court. The French contre-mémorire,of 222 pages, contains a valuable collection of documents.
13 See Acts and Documents, No.2, pp.52, 53.
14 Ibid., p. 56.
15 Ibid., p.241.
16 See the League of Nations Official Journal, 1920, p.249.
17 See especially the Order in Council of December 31, 1883. 74 British cfc Foreign State Papers 694.
18 89 British & Foreign State Papers 40.
19 104 British & Foreign State Papers 948.
20 88 British & Foreign State Papers 720, 733.
21 Cf. the American restriction on interpretation of the most-favored-nation clause. Hyde,International Law, Vol. II, p.73.
22 Acts and Documents, No.2, p.13.
23 The British Charglé d’Affaires communicated copies of the notes exchanged embodying the terms of the amicable arrangement. Document C. 422. M. 186.1988. V. These terms are:
a) The French Government agreed to make arrangements before January 1,1924, where by a British national who is the child born in Tunis of a British national who was himself born there shall be entitled to decline French nationality, it being understood, however, that this right will not extend to succeeding generations.
b) A child bom in Tunis of a British national bom elsewhere than in Tunis is not claimed to possess French nationality, and French nationality will not be imposed on any British national bom in Tunis before November 8,1921, without an opportunity being afforded to him to decline it.
c) No attempt will be made to impose Tunisian nationality instead of French nationality on British nationals in Tunis.
d) Neither government abandons its point of view maintained either in the diplomatic correspondence or in the preliminary proceedings at The Hague; nor will the principle adopted in the present agreement be applicable elsewhere than in Tunis.
e) The application to British subjects of the similar nationality decrees promulgated in Morocco (French zone) will not for the present give rise to further proceedings at The Hague, since this question has at present no practical importance. On this question, the two governments reserve their rights. See British Treaty Series, No. 11 (1923), Cmd. 1899.
24 In thiB Joubnal, Vol. 17 (1923), pp.298-298.
25 League of Nations Treaty Series, Vol.3, p. 5.
26 An English translation is published in League of Nations Treaty Series, Vol. 3, p.76. On the general question, see“La Question de la CarSUe Orientate,” byProfessorErich, R., in3 Revue de Droit International et de Legislation Comparee, 3d ser., p.1 Google Scholar.
27 The text of the procks-verbal is published in League of Nations Treaty Series, Vol.3, p. 79.
28 Statements had been submitted by the Esthonian, Latvian, Lithuanian, and Polish governments.
29 League of Nations Official Journal,1922, p. 108.
30 See memorandum by the Secretary General, of February 1,1923, in League of Nations Official Journal,1923, p.343.
31 See statement by Enckell, M., inLeague of Nations Official Journal,1923, p.222.Google Scholar
32 League of Nations Official Journal,1923, p.222.
33 Reprinted in League of Nations Official Journal, 1923, p. 661. See, also, the opinions of Professors de Visscher of Ghent, Lie of Christiania, and Berlin of Copenhagen, in a brochure published by the “ Carelian Delegation” in 1922.
34 League of Nations Official Journal, 1923, p. 578.
35 This statement has been incorporated in all of the recent resolutions requesting advisory opinions.
36 The Registrar's letter of May 19,1923, to the Russian People's Commissary for Foreign Affairs, stated: “ Notice is hereby given in accordance with the principle, laid down in the rules of court, according to which governments and international organizations, which are likely to be able to furnish information on a question submitted to the court for an advisory opinion, shall receive notice of such question.” Cf., Rules of court, Article 73.
37 For the text, see Advisory Opinion No. 6, pp. 12-12.
38 Advisory Opinion, No.5, p. 24.
39 Document C. 642. (.1). 1928. V. The discussion in the Council is reported in prochsverbal 19/1 of the 26th session.
40 League of Nations Official Journal, Special Supplement No.11, p. 29.
41 Following Article 35 of the rules of court.
42 “ The Kiel Canal and its approaches shall be maintained free and open to the vessels of commerce and war of all nations at peace with Germany on terms of entire equality.”
43 The first paragraph reads: “ In the event of any violation of any of the conditions of Articles 380 to 386, or of disputes as to the interpretation of these articles, any interested Power can appeal to the jurisdiction instituted for the purpose by the League of Nations.”
44 “ When a treaty or convention in force provides for the reference of a matter to a tribunal to be instituted by the League of Nations, the court will be such tribunal.”
45 In a letter from the President of the German delegation at Paris to the President of the Conference of Ambassadors, reprinted in the applicant Powers' Memoire, p. 22.
46 See League of Nations Treaty Series, Vol. VII, p. 35; Vol. XI, p. 406.
47 See the applicant Powers' Memoire, p. 29.
48 League of Nations Treaty Series, Vol. IV, p. 7.
49 Ibid ., Vol. VI, p. 51.
50 See the Hague Convention of 1907, respecting the rights and duties of neutral Powers and persons in case of war on land, Articles 2 and 7. 2 Malloy, Treaties, pp. 2297, 2298.
51 The order is to be found in Reichs-Gezetzblatt, 1920, No.158, p. 1469.
52 The matter had been previously discussed in the Conference of Ambassadors.
53 Minuts of Council, 10th session, p. 33.
54 Ibid., 13th session, pp. 51, 235.
55 League of Nations Official Journal, June, 1922, pp. 555, 702.
56 Ibid., August, 1922, pp. 806, 917.
57 Ibid., November, 1922, pp. 1181, 1293.
58 Ibid., November, 1922, p. 1299.
59 Ibid., March, 1923, pp. 240, 395.
60 League of Nations Official Journal, June, 1923, pp. 558, 637.
61 German Code Civil Procedure, Introductory Act, Article 4.
62 Document C. 637.1923. 1.
63 See League of Nations Official Journal, June, 1922, pp.555, 702; August, 1922, pp. 806,917; and November, 1922, pp. 1181, 1297, 1300.
64 Ibid., March, 1923, p. 396.
65 Ibid., March, 1923, p. 396,
66 See League of Nations Official Journal, August, 1923, pp. 934-934. Apparently the concurrence of the Polish representative was not necessary. See Lord Robert Cecil's remarks with reference to the expropriation by the Roumanian Government of the property of Hungarian optants, League of Nations Official Journal, August, 1923, p. 905.
67 Ibid., August, 1923, p. 999.
68 Though Article 73 of the rules of court did not require that notice be sent to Germany,and though Germany might not have a locus standi with reference to ordinary questionsarising under the Polish minorities treaty, the court's action in sending such notice in thiscase would seem to have been a proper exercise of its discretion. But in its letter of December1, 1923, addressed to the President of the Council, the Polish Government seems tohave objected to the court's hearing the German Government on the ground that Germany“ would not in any way be regarded as an interested party.”
69 Judge Moore took part in the deliberations and concurred in the conclusions, but was forced to leave The Hague before the terms of the opinion were finally settled.
70 Advisory Opinions, Series B, No. 7, p. 26.
71 See proces-verbal 19/1 of the 26th session of the Council.
72 For the text of this decision, see 113 British and Foreign State Papers 804. For the decision of the Conference of Ambassadors of July 28, 1920, see ibid., p. 860. For the court's opinion, see Collection of Advisory Opinions, No.8.
73 League of Nations Official Journal, March, 1923, p. 238. For Lithuania's request, see ibid., p. 586.
74 Ibid., June, 1923, p. 670.
75 League of Nations Official Journal, Spec. Supp. No. 11, p. 29. The matter was studied by both the first and sixth committees.
76 The text of the proposed draft was published in League of Nations Official Journal, June, 1923, p. 703.
77 See the very striking declarations of Titulesco, M.(Roumania) inLeague of Nations Official Journal, June,1923, pp.606,608.Google Scholar
78 See the account in League of Nations Official Journal, August, 1923, p. 1012.
79 Particularly LordCecil, Robert (Great Britain) andBranting, M.(Sweden).League of Nations Official Journal, August,1923, p.905.Google Scholar
80 Minuts of the Council, 26th session, P. V. 16, p. 3.
81 22 Columbia Law Review 507. Cf. Professor James Bradley Thayer's statement that the giving of advisory opinions “ is not the exercise of the judicial function at all, and the opinions thus given have not the quality of judicial authority.” 7 Harvard Law Rev. 153. And Judge Cardozo has more recently said that “ the giving of such opinions is not the exercise of the judicial function.” Matter of State Industrial Commission, (1918) 224 N. Y. 13, 16. See also 10 Virginia Law Rev. 152.
82 Proceedings, 1923, p. 84.
83 36 Harvard Law Review 715.
84 The fullest consideration of the subject is Departmental Cooperation in State Governments, by Albert R. Ellingwood (MacMillan: New York, 1918). See also Thayer, Legal Essays, 42. H. A. Dubuque, “ The Duty of Judges as Constitutional Advisers,” 24 Amer. Law Rev. 369 (1890).
85 See 2 Eden {Appendix) 371. The judges put in a caveat, however, that “ we should be ready, without difficulty, to change our opinion, if we see cause, upon objections that may be then laid before us, though none have occurred to us at present which we think sufficient.”
86 (1878) 126 Mass. 561.
87 At least there is a dictum to this effect in Attorney-General for Ontario v. Attorney-General for Canada [1912] A. C. 571, 586. Of course, a judgment of the Judicial Committee of the Privy Council is “ a statement of the reasons which determine them in humbly advising' the King to give effect to their decision.” Anson, Law and Custom of the Constitution, Vol. II, p. 293 (4th ed.).
88 For instance, the opinions in M'Naghten's Case, (1843) 10 Clark & Finnelly 200.
89 Constitution of Massachusetts, Chap. III , Art. II.
90 Volume 237 of the Massachusetts reports contains five such opinions; Vol. 239, two; and Vol.240, three.
91 Rugg, C. J., inLoring v. Young, (1921)Google Scholar 239 Mass. 349, 361, 132 N. E. 65, 68.
92 Young v. Duncan, (1914) 218 Mass. 346, 351, 106 N. E. 1, 4.
93 Rugg, C. J., inLoring v. Young, (1921)Google Scholar 239 Mass. 349, 361, 132 N. E. 65, 68. See also Perkins v. Westwood, (1917) 226 Mass. 268, 272, 115 N. E. 411.
94 Loring v. Young, (1921) 239 Mass. 349, 132 N. E. 65.
95 A recent opinion may be found in (1919) 79 N. H. 535, 112 Atl. 525.
96 A recent opinion may be found in (1921) 120 Maine 566.
97 A recent opinion may be found in (1922) 44 R. I. 275.
98 See Missouri General Statutes of 1866, p. 36.
99 See (1919) 78 Florida 156, 82 Southern 606.
100 See In re Rural Credits Law, (1917) 38 So. Dak. 635, 162 N. W. 536; In re Opinion of the Judges, (1920) 43 So. Dak. 645, 180 N. W. 64.
101 (1889) 12 Colo. 469. But see Ellingwood, op. tit., p. 189.
102 For the limits in general, see Ellingwood, op. cit., c. 3.
103 According to Ellingwood, p. 69. An opinion was recently given In re School Code of 1919, (1919) 30 Del. 406, 108 Atlantic 39. In this instance, the chancellor and judges received briefs and heard arguments of counsel.
104 The Act was approved on February 13, 1923. See 10 Virginia Law Rev. 150.
105 In re Opinions of the Justices, (1923) 96 So. 487. See, however, Re Application of the Senate, (1865) 10 Minn. 78.
106 Bunn, Compiled Statutes of 1921, §2786. See In re Blakely, (1921) 195 Pac. 146; In re Ledbetter, (1921) 195 Pac. 149.
107 Attorney-General for Ontario v. Attorney-General for Canada, [1912] A. C. 571. It is to be noted that Lord Finlay, then Sir Robert Finlay, K. C., now a judge of the Permanent Court of International Justice, was of counsel attacking the statute.
108 In re Public Utility Board, (1912) 83 N.J.L. 303, 307.
109 State v. Mackey, (1891) 82 Iowa 393; State v. Gilbert, (1908) 138 Iowa 335.
110 It may be thought that the third question did not relate to any pending problem, however, for the Director of the International Labor Office stated that “ the International Labor Organization has never considered any intervention” with reference to agricultural production. But a limited intervention in that direction had been proposed by M. Zumeta (Venezuela) at the Third International Labor Conference, so that the problem had immediate importance. See League of Nations Official Journal, August, 1922, p. 897. Moreover, the court was thoroughly alive to the necessity of confining its opinion to a definite question relating to a specific problem. See the opinion in Series B, No. 4, p. 59.
111 This is the significance of the court's reception of the letter of the Secretary-General of the League, of October 4, 1922, relating to the Tunis-Morocco question.
112 See President Harding's address of June 21, 1923, in this Journal, Vol. 17 (1923), pp. 533, 536.
113 See also Article 44 of the rules of court.
114 Yet Mr. Gregory stated in this Journal , Vol. 17 (1923), p. 305, that “ the closing announcement as to the English and French versions ‘ the French text being authoritative’ sounds again for us the exotic note.”
115 League of Nations Official Journal, June, 1923, p . 629.
116 Ibid., p. 555.
117 Document C. 479. M. 198. 1923. V.
118 See this Journal, Vol. 17 (1923), p . 836.
119 But see Mr. Hammarskjöld's, statement in36 Harvard Law Review 725 Google Scholar, which would indicate that this publication should be considered as number 1 of Series D.
120 Document C. 169. M. 83.1928. V.
121 See League of Nations Official Journal, June, 1922, p. 565.
122 Ibid., pp. 520, 564.
123 League of Nations Official Journal, August, 1922, pp. 787, 829.
124 Records of Third Assembly, Plenary Meetings, Vol. II , p. 207. As amended by Fourth Assembly, Document C. 66S. M. 266.1923. X .
125 36 Harvard Law Review 724.
126 See Document C. 668. M. 268.1923. X.
127 League of Nations Official Journal, February, 1922, p. 102.
128 Ibid., August, 1922, pp. 881, 936, 989.
129 Document A. 43.1923. X.
130 Document A. 4 (b) (2). 1923. X.
131 This and the fact that Deputy-Judge Wang first sat with the court on June 15,1923 are the only foundation for a very surprising statement by Mr. Gregory in this Joubnal, Vol.17 (1923), p. 306, that “ some of these judges after a lapse of a year have not yet appeared or functioned with the court, yet it is understood have faithfully drawn their stipends.”
132 League of Nations Official Journal, June, 1923, p. 554.
133 In accordance with Article 4, paragraph 2, of the court's statute.
134 Two nominees, MM. Alvarez (Chile) and Politis (Greece), declined the candidacy.
135 See Document A. 92.1921 V.
136 Document C. 628. M. 284.1928. V.
137 See publications of the court, Series D, No. 3, pp. 12 ff. See, also, the League of Nations Treaty Series, Vol.VI, p. 379; Vol. XI, p. 404.
138 See Document A 10 (a). Annex 1928, entitled Progress of International Conventions and Engagements.
139 Document C. 624. M. 285. 1928. V.
140 Series D, No.3, entitled Extracts from International Agreements affecting the Jurisdiction of the Court. See also, the writer's article in this Journal, Vol.17(1923), p . 24, and Professor Blociszewski's article in the Revue Generate de Droit International Public, 192$, p . 23.
141 League of Nations Official Journal, August, 1923, p. 933.
142 Minutes of Council, 96th session, P. V. IS, p. 21.
143 Document C. 630. M. 236. 1923. IV .
144 Document C. D. I. 96 (1) 1923.
145 See 1 Cambridge Law Journal 29; Ernest Lemonon, in 49 Journal du Droit International(Clunet) 761; 1 Boston University Law Review 6; Gabrielle Salvioli in Rivista di Diritto Intemazionale, April, 1923, p. 11; 9 American Bar Assn. Journal, 160; W. L. Frierson in Maryland State Bar Assn. Report for 1922, p. 74; Charles H. Carey, in 2 Oregon Law Review 205. See also Judge de Bustamante's interesting paper in 4 Revista de Derecho International 5. For a partial bibliography, see the Advocate of Peace, Dec., 1923, p. 438.
146 New York Times, July 15,1922, p. 1.
147 Ibid., October 31,1922, p. 4.
148 Senate Document No. 309, 67th Congress, 4th session. 64 Cong. Record, 4508. Reprinted in this Journal, Vol. 17(1923), p. 332.
149 Senate Document No. 342, 67th Congress, 4th session. Reprinted in this Joubnal, Vol. 17 (1923), p. 339.
150 Reprinted in this Joubnal, Vol. 17 (1923), p. 533. Cf. comment by Mr. George A. Finch, ibid., p. 521.
151 Communiques issued by the Department of State. See also, U. S. Treaty Series, No. 674.
152 In an article in Foreign Affairs, December 15, 1922, pp. 80-80.
153 This Journal, Vol.17(1923), pp. 429, 436.
154 “L’Ambrique et la Cotar Permanente de Justice Internationale,” 4 Revue de Droit International et de Legislation Comparie, 3 series, p. 179.
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