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As an institution, or a project of international justice, the Permanent Court was a success, being the framework within which the world first experienced the development of an international judiciary. What remains so attractive about the Permanent Court is simply that it was a pioneering institution. During the negotiations of the Charter of the United Nations, there was little doubt that an International Court should be part of the institutional arrangement, and that it would be closely modelled on the Permanent Court. Despite the significant political changes in the world since 1945, many of which have been given legal form, there has been no decline in the international judiciary, and no change in the basic framework laid down after 1921 for the Permanent Court. At the turn of the twenty-first century, there were several active international courts in existence in addition to the principal judicial organ of the United Nations.
Many of the decisions of the Permanent Court concerned the interpretation of treaties that are now obsolete; most of them had emerged out of the conclusion of the First World War and most did not survive yet another upheaval of the world. More than sixty years later, there are often more recent and less eccentric precedents to cite. While many fields of international law are informed with quotations from various decisions of the Permanent Court, the exotic names of which are commonplace, the use of such quotations often has no relation to the original context and may indeed only be lingering on as echoes from a distant past.
The International Court of Justice at The Hague is the principal judicial organ of the UN, and the successor of the Permanent Court of International Justice (1923–1946), which was the first real permanent court of justice at the international level. This 2005 book analyses the groundbreaking contribution of the Permanent Court to international law, both in terms of judicial technique and the development of legal principle. The book draws on archival material left by judges and other persons involved in the work of the Permanent Court, giving fascinating insights into many of its most important decisions and the individuals who made them (Huber, Anzilotti, Moore, Hammerskjöld and others). At the same time it examines international legal argument in the Permanent Court, basing its approach on a developed model of international legal argument that stresses the intimate relationships between international and national lawyers and between international and national law.
In studying international legal argument as unfolding in the decisions of an international court, the question is what to do if one's analysis of the decisions is not to be only superficially about that court. The shifting divisions between the judges, the emergence and decline of what Lauterpacht termed ‘trends and principles’, the varying influence of specific judges over time and the numerous implicit overrulings of former decisions are all interrelated aspects that warrant a chronological analysis of the decisions of the same international court. Of course, no description takes the form of a one-way process of cognition, yet that ought not to prevent lawyers from analysing the decisions of international courts. A model of international legal argument concerned with the practical use of international law in specific cases, as distinct from the Buchrecht, is essential. Account must be taken of the written and oral pleadings of the parties appearing before the international court, yet the focus is on the decisions of, and therefore international legal argument within, the Permanent Court.
On one occasion, having regard to the increasing interest among scholars in commenting on the decisions of the Permanent Court, President Huber suggested to his colleagues that ‘the work in preparing our decisions must be such that if our critics – whether learned men or politicians – could be admitted to the private sittings of the Court, they would remain with the impression that the evolution of our judgments is really worthy of the Court’.
As the predecessor of the present International Court of Justice, the Permanent Court of International Justice was a historic ‘melting-pot’ of ideals about international justice and, according to some, international community as well as notions of international law. It was the culmination so far of a persistent movement towards, in prosaic terms, more effective settlement of international disputes. The twentieth century had opened with a call for international justice, a growing hope of sustaining peace through international adjudication and law. Although cold water was inevitably poured on the belief in international adjudication being a real, trustworthy alternative to warfare, the century witnessed several successful projects of international justice, with more now underway. This was partly due to the legacy of the Permanent Court where international law was brought down to earth, as it were, and given a practical edge. In this context, the world, at last, experienced the rise of the international judiciary.
The Permanent Court of International Justice was preceded by the Permanent Court of Arbitration established under the 1899 and 1907 Conventions for the Pacific Settlement of International Disputes, which have been described as ‘in a sense a codification of the law of pacific settlement up to that time’. In Articles 15 (1899) and 37 (1907), ‘international arbitration’ was defined as having ‘for its object the settlement of disputes between States by judges of their own choice on the basis of respect for law’.
Note: This appendix lists all decisions published in Series A and B between 1922 and 1930 and in Series A/B between 1931 and 1940, that is, all advisory opinions and judgments of the Permanent Court and also a small number of orders. It gives the official name of the decision; its number in the General List and the date of registration; the references to official publications regarding the decision (i.e., Series A, Series B or Series A/B, and the publication of related acts and documents in Series C); the decision's kind, its date, the final vote (if available in the official publications) and the authentic language of the decision; and the participating judges, deputy-judges and judges ad hoc (the names of judges and deputy-judges not sitting on the case are struck out; the names of dissenting judges are underlined; the names of judges appending a declaration or a separate opinion are put in italics). The folios of the General List in respect of all cases submitted to the Permanent Court are reproduced in Series E No. 16 (1939–45) at 92–147. Chronological indexes of orders of the Permanent Court are contained in Series E No. 11 (1934–5) at 95–100; Series E No. 12 (1935–6) at 149–50; Series E No. 13 (1936–7) at 108–9; Series E No. 14 (1937–8) at 99; Series E No. 15 (1938–9) at 83; and Series E No. 16 (1939–45) at 88.
Most lawyers work and think on the basis of a national legal system: they are ‘national’ lawyers. As such most rarely pay regard to international law. The standard approach is to see the national legal system as being self-contained, capable of solving on its own disputes and other issues as they present themselves. Where dealing with an issue belonging to the vast domain within which national lawyers regard national law as being self-contained, a national lawyer will be at least sceptical, if not dismissive, of an argument as to the relevance of international law. This starting-point may be termed ‘the national principle of self-containedness’. For example, the state is seen as perfectly capable on its own, that is, in its national law, to regulate the relationship between individuals, and between individuals and the state; thus individuals are not normally a concern for the international law of coexistence. In respect of a treaty-based regime part of which clearly has direct effect on individuals, the European Court of Justice indeed takes the view that in a very fundamental sense it ‘constitutes a new legal order of international law’.
In the Military and Paramilitary Activities in and against Nicaragua case, the International Court referred to ‘matters in which each State is permitted, by the principle of State sovereignty, to decide freely’.
The Permanent Court as composed after the second general election
President Adatci and other new judges
The second general election of judges took place on 25 September 1930. Those re-elected were Judges Altamira (sixty-four years old), Anzilotti (sixty-one years old) and de Bustamante (sixty-five years old), who had been ordinary members of the Permanent Court since 1922; Judges Negulesco (fifty-five years old) and Wang (forty-nine years old), who had also been members of the Permanent Court since 1922, though in the first nine years as deputy-judges; and Judges Hurst (sixty years old), Fromageot (sixty-six years old) and Kellogg (seventy-four years old) (ages stated as at the end of 1930).
Only Judges Negulesco and Wang were younger than Judge Huber; Judge Huber, however, had eventually declined to stand for re-election. Huber's influence had diminished during Judge Anzilotti's presidency, partly because he had taken up the presidency of the International Committee of the Red Cross. Yet his departure was a serious blow to an international lawyer's approach to international legal argument, one which combined the international law of coexistence with the dynamic structure of international legal argument, having the conception of the state as an international sovereign as its starting-point. The main exponent of this approach remaining on the bench was Judge Anzilotti, since Deputy-Judge Beichmann did not secure re-election. Indeed, no Scandinavian candidate succeeded. Åke Hammarskjöld lost the last seat on the bench by a whisker to a South American, Francisco José Urrutia (Colombia).
Back in 1899, only a few of the positions now occupied by international lawyers had been provided for. Yet 1899 was a significant year. Governments met at the First Peace Conference at The Hague to set an example of codifying international law in treaties. They reached agreement on the establishment of the first international court of a permanent character, at least nominally – the Permanent Court of Arbitration. The nineteenth century had witnessed a remarkable growth in the number of treaties, and their subject matters, many of which were also governed by national law. In the same period constitutional democracy had spread widely. While it remained a government prerogative to represent the state internationally, for example when consenting to be bound by a treaty, parliamentary bodies had become centres of national law-making processes.
In 1899, Professor Heinrich Triepel in Völkerrecht und Landesrecht addressed the topical issue of the relationship between international and national law. It is one of the few nineteenth-century books on international law that was quoted, or at least cited, throughout the twentieth century. Triepel has been seen as the main exponent of the dualist theory, according to which national and international law are separate legal systems. One consequence of this view is that acts contrary to international law may be valid under national law, and vice versa. The systems were described by Triepel as circles that perhaps touched but never overlapped.