International Judicial Monitor - Justice in Profile

Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Summer 2013 Issue

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International Tribunal Spotlight

Permanent Court of International Justice

By: Tyler Church, Legal Intern, International Judicial Academy

The conclusion of World War I left Europe devastated. The international community expressed a desire for a peaceful solution to grievances between nations in order to help prevent a conflict that impacted so many people. The Treaty of Versailles (1919) that was drafted and signed at the end of the “Great War” provided for the creation of a the League of Nations, a new international body that would be designed to guarantee peace and security and prevent future wars.

A special commission was formed and empowered with the task to establish a covenant, or constitution, for this new League of Nations. This Covenant was later approved at the Paris Peace Conference by all 37 of the original member states. Included in the Covenant was Article XIV which specifically allowed the League of Nations to develop plans for and establish a new international court to be called the Permanent Court of International Justice (PCIJ). The Covenant specified that “[t]he Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it.”

Soon after the Covenant came into force, the League of Nations passed a resolution to create an Advisory Committee of Jurists responsible for the formation of the PCIJ. This committee was comprised of ten independent jurists from different nationalities. In December of 1920 the commission submitted the Statute of the Court to the Assembly of the League where it was then approved unanimously and submitted to the individual members for ratification. By September, 1921 there were 47 countries that had ratified the Statute of the Court and 48 countries that signed the compulsory jurisdiction clause.

The Court first sat on February 15^, 1922 at its permanent location in the Peace Palace in The Hague, The Netherlands, with Dutch jurist Bernard Loder as the first President. During this session, the court established the applicable law that would be used to render decisions in addition to other housekeeping issues. This court would be the first of its kind. Its rulings would be binding upon the parties, unlike the Permanent Court of Arbitration that had a home in the Peace Palace and that had been established as a result of the Hague Convention of 1899.

As the first tribunal of its kind, it was important that the court establish both the jurisdictional bounds as well as established guidelines for how the court would judge each case. For its deliberations and decisions, the PCIJ established that it would first rely on international conventions and treaties, secondly, on general customs in the region, and lastly on general principles of law recognized by civilized nations. The Court had two types of jurisdiction to bring cases before it. The first was a voluntary jurisdiction where members would submit a dispute to the court through an agreement. The second type of jurisdiction was a compulsory jurisdiction. In this system states agreed through a convention to give the court jurisdiction for all disputes that arose between them. Though the court preferred compulsory jurisdiction, about half of the countries that had ratified the protocols chose voluntary jurisdiction.

The Court was open to any member of the League of Nations or any non-member sovereign mentioned in the annex of the Covenant. This included countries such as the United States which had not joined the League. As an international court it primarily focused on cases between two countries, but also allowed a state to present a claim on behalf of one of its citizens against a foreign government. From its inaugural sitting in 1922 until 1940 the PCIJ ruled on 29 cases between states, gave 27 advisory opinions, and in total heard 66 cases.

The United States was one of the most notable countries that did not accept the PCIJ, as it was resistant to the idea of joining the League of Nations and subsequently the Court. This strong stance from the United States, despite President Wilson being one of the largest promoters of a League of Nations and an international court of justice, was primarily due to political opposition as well as public opinion.

President Wilson first presented the Treaty of Versailles to the US Senate in 1919 and for the first time in United States history, the senate rejected a peace treaty. The newly elected Republican Congress was weary of involving the United States in matters across the ocean and also thought that is members should have been more involved in Wilson’s meetings during the Paris Peace Conference. President Wilson then tried to garner public support for the treaty as well as the Court but lost a lot of popularity as the nation was still healing from extensive casualties in an unpopular European war. Later President Warren G. Harding tried to persuade the Senate to reconsider their involvement in the court in 1923, giving a speech on the subject. This attempt was met with more debate but got little traction with Congress as the generally accepted policy of the United States during this era was that of isolationism.

The outbreak of World War II in 1939 lead to a significant decrease in the Court’s functions. The last decision was given in February of 1940, The Electricity Company of Sofia and Bulgaria, a case between Belgium and Bulgaria. As the war got closer, the court was unable to continue its session, leaving one case file opened in the archives on March 7^th1940. No action was taken on the case.

In early May, 1940 the Netherlands surrendered to Germany after the first great airborne operations in history dismantled the Dutch Army and the royal family fled to London. With The Hague overrun by the Nazis, the PCIJ judges fled to Geneva to wait out the war. The President and Registrar stayed in The Hague until July but also left the Netherlands for Switzerland, where the League of Nations was headquartered, until the end of the war. The Court did not meet in 1941, 1942, 1943, or 1944 and it became increasingly apparent that the Court would be disbanded.

In 1942 the Secretary of State for the United States and the Foreign Secretary for the United Kingdom expressed support for an international court to be established after the conclusion of the war.

As a result of a favorable response to the idea, the United Kingdom invited a number of judicial experts to London to explore the creations of a new post-war international court. The committee later published its report and recommendations in February, 1944. The committee report contained four main guidelines for a new international court. The first was that the statute for a new court should be based on the PCIJ statute. Second, the advisory jurisdiction should be maintained by the new court. Third, there should not be a compulsory jurisdiction for acceptance. Lastly, the court should not have any jurisdiction over political matters.

During this same period, the major allied powers were also meeting in regards to the establishment of the United Nations. Later in April 1945, a committee of jurists representing 44 nations prepared a draft statute for a new international court of justice that was to be submitted to the new United Nations which was also being chartered during the same period. The last session for the PJIC was subsequently in October of that year, and the court decided to take every step possible to transfer its archives to the new International Court of Justice (ICJ). In January of 1946 all of the judges that had not already done so retired from the PCIJ. In February the International Court of Justice held its first meeting, electing a new president, Judge José Gustavo Guerrero of El Salvador, the last President of the PCIJ. Though the PCIJ was short lived, its work fortunately continued and its development and jurisprudence were instrumental in creating the foundation for the ICJ and other international courts that followed.

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International Judicial Monitor
© 2013 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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