The
creation of the Court represented the culmination of a long development of
methods for the pacific settlement of international disputes, the origins of
which can be traced back to classical times.
Article 33
of the United Nations Charter lists the following methods for the pacific
settlement of disputes between States: negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, and resort to regional agencies
or arrangements; good offices should also be added to this list. Among these
methods, certain involve appealing to third parties. For example, mediation
places the parties to a dispute in a position in which they can themselves
resolve their dispute thanks to the intervention of a third party. Arbitration
goes further, in the sense that the dispute is submitted to the decision or
award of an impartial third party, so that a binding settlement can be
achieved. The same is true of judicial settlement (the method applied by the
International Court of Justice), except that a court is subject to stricter
rules than an arbitral tribunal, particularly in procedural matters.
Mediation
and arbitration preceded judicial settlement in history. The former was known
in ancient India and in the Islamic world, whilst numerous examples of the
latter are to be found in ancient Greece, in China, among the Arabian tribes,
in maritime customary law in medieval Europe and in Papal practice.
The
modern history of international arbitration is, however, generally recognized
as dating from the so-called Jay Treaty of 1794 between the United States of
America and Great Britain. This Treaty of Amity, Commerce and Navigation
provided for the creation of three mixed commissions, composed of American and
British nationals in equal numbers, whose task it would be to settle a number
of outstanding questions between the two countries which it had not been
possible to resolve by negotiation. Whilst it is true that these mixed
commissions were not strictly speaking organs of third-party adjudication, they
were intended to function to some extent as tribunals. They reawakened interest
in the process of arbitration. Throughout the nineteenth century, the United
States and the United Kingdom had recourse to them, as did other States in
Europe and the Americas.
The
Alabama Claims arbitration in 1872 between the United Kingdom and the United
States marked the start of a second, and still more decisive, phase. Under the
Treaty of Washington of 1871, the United States and the United Kingdom agreed
to submit to arbitration claims by the former for alleged breaches of
neutrality by the latter during the American Civil War. The two countries
stated certain rules governing the duties of neutral governments that were to
be applied by the tribunal, which they agreed should consist of five members,
to be appointed respectively by the Heads of State of the United States, the
United Kingdom, Brazil, Italy and Switzerland, the last three States not being
parties to the case. The arbitral tribunal’s award ordered the United Kingdom
to pay compensation and it was duly complied with. The proceedings served as a
demonstration of the effectiveness of arbitration in the settlement of a major
dispute and it led during the latter years of the nineteenth century to
developments in various directions, namely:
- sharp growth in the practice of
inserting in treaties clauses providing for recourse to arbitration in the
event of a dispute between the parties;
- the conclusion of general
treaties of arbitration for the settlement of specified classes of
inter-State disputes;
- efforts to construct a general
law of arbitration, so that countries wishing to have recourse to this
means of settling disputes would not be obliged to agree each time on the
procedure to be adopted, the composition of the tribunal, the rules to be
followed and the factors to be taken into consideration in making the
award;
- proposals for the creation of a
permanent international arbitral tribunal in order to obviate the need to
set up a special ad hoc tribunal to decide each arbitrable dispute.
The
Hague Peace Conference of 1899, convened at the initiative of the Russian
Czar Nicholas II, marked the beginning of a third phase in the modern
history of international arbitration. The chief object of the Conference, in
which — a remarkable innovation for the time — the smaller States of
Europe, some Asian States and Mexico also participated, was to discuss peace
and disarmament. It ended by adopting a Convention on the Pacific Settlement of
International Disputes, which dealt not only with arbitration but also with
other methods of pacific settlement, such as good offices and mediation.
With
respect to arbitration, the 1899 Convention made provision for the creation of
permanent machinery which would enable arbitral tribunals to be set up as
desired and would facilitate their work. This institution, known as the
Permanent Court of Arbitration, consisted in essence of a panel of jurists
designated by each country acceding to the Convention — each such country
being entitled to designate up to four — from among whom the members of
each arbitral tribunal might be chosen. The Convention further created a
permanent Bureau, located at The Hague, with functions corresponding to
those of a court registry or a secretariat, and it laid down a set of rules of
procedure to govern the conduct of arbitrations. It will be seen that the name
“Permanent Court of Arbitration” is not a wholly accurate description of the
machinery set up by the Convention, which represented only a method or device
for facilitating the creation of arbitral tribunals as and when necessary.
Nevertheless, the system so established was permanent and the Convention as it
were “institutionalized” the law and practice of arbitration, placing it on a
more definite and more generally accepted footing. The Permanent Court of
Arbitration was established in 1900 and began operating in 1902.
A
few years later, in 1907, a second Hague Peace Conference, to which the States
of Central and South America were also invited, revised the Convention and
improved the rules governing arbitral proceedings. Some participants would have
preferred the Conference not to confine itself to improving the machinery
created in 1899. The United States Secretary of State, Elihu Root, had
instructed the United States delegation to work towards the creation of a
permanent tribunal composed of judges who were judicial officers and nothing
else, who had no other occupation, and who would devote their entire time to
the trial and decision of international cases by judicial methods. “These
judges”, wrote Secretary Root, “should be so selected from the different
countries that the different systems of law and procedure and the principal
languages shall be fairly represented”. The United States, the United Kingdom
and Germany submitted a joint proposal for a permanent court, but the
Conference was unable to reach agreement upon it. It became apparent in the
course of the discussions that one of the major difficulties was that of
finding an acceptable way of choosing the judges, none of the proposals made
having managed to command general support. The Conference confined itself to
recommending that States should adopt a draft convention for the creation of a
court of arbitral justice as soon as agreement was reached “respecting the
selection of the judges and the constitution of the court”. Although this court
was never in fact to see the light of day, the draft convention that was to
have given birth to it enshrined certain fundamental ideas that some years
later were to serve as a source of inspiration for the drafting of the Statute
of the Permanent Court of International Justice (PCIJ).
Notwithstanding
the fate of these proposals, the Permanent Court of Arbitration, which in 1913
took up residence in the Peace Palace that had been built for it thanks to a
gift from Andrew Carnegie, has made a positive contribution to the
development of international law. Among the classic cases that have been
decided through recourse to its machinery, mention may be made of the Carthage
and Manouba cases (1913) concerning the seizure of vessels, and of the Timor
Frontiers (1914) and Sovereignty over the Island of Palmas (1928)
cases. Whilst demonstrating that arbitral tribunals set up by recourse to
standing machinery could decide disputes between States on a basis of law and
justice and command respect for their impartiality, these cases threw into bold
relief the shortcomings of the Permanent Court of Arbitration. Tribunals of
differing composition could hardly be expected to develop a consistent approach
to international law to the same extent as a permanently constituted tribunal.
Besides, there was the entirely voluntary character of the machinery. The fact
that States were parties to the 1899 and 1907 Conventions did not oblige
them to submit their disputes to arbitration nor, even if they were minded so
to do, were they duty-bound to have recourse to the Permanent Court of Arbitration
nor to follow the rules of procedure laid down in the Conventions.
The
Permanent Court of Arbitration has recently sought to diversify the services
that it can offer, alongside those contemplated by the Conventions. The
International Bureau of the Permanent Court has inter alia acted as
Registry in some important international arbitrations, including that between
Eritrea and Yemen on questions of territorial sovereignty and maritime
delimitation (1998 and 1999), that concerning the delimitation of the boundary
between Eritrea and Ethiopia (2002), and that between Ireland and the United
Kingdom under the 1992 Convention for the Protection of the Marine
Environment of the North-East Atlantic (OSPAR). Moreover, in 1993, the
Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating
Disputes between Two Parties of Which Only One Is a State” and, in 2001,
“Optional Rules for Arbitration of Disputes Relating to Natural Resources
and/or the Environment”.
For
more information on the Permanent Court of Arbitration, please visit their
website: www.pca-cpa.org.
The
work of the two Hague Peace Conferences and the ideas they inspired in
statesmen and jurists had some influence on the creation of the Central
American Court of Justice, which operated from 1908 to 1918, as well as on the
various plans and proposals submitted between 1911 and 1919 both by national
and international bodies and by governments for the establishment of an
international judicial tribunal, which culminated in the creation of the PCIJ
within the framework of the new international system set up after the end of
the First World War.
Article 14
of the Covenant of the League of Nations gave the Council of the League
responsibility for formulating plans for the establishment of a Permanent Court
of International Justice (PCIJ), such a court to be competent not only to hear
and determine any dispute of an international character submitted to it by the
parties to the dispute, but also to give an advisory opinion upon any dispute
or question referred to it by the Council or by the Assembly. It remained for
the League Council to take the necessary action to give effect to
Article 14. At its second session early in 1920, the Council appointed an
Advisory Committee of Jurists to submit a report on the establishment of the
PCIJ. The committee sat in The Hague, under the chairmanship of
Baron Descamps ( Belgium). In August 1920, a report containing a
draft scheme was submitted to the Council, which, after examining it and making
certain amendments, laid it before the First Assembly of the League of Nations,
which opened at Geneva in November of that year. The Assembly instructed its
Third Committee to examine the question of the Court’s constitution. In
December 1920, after an exhaustive study by a subcommittee, the Committee
submitted a revised draft to the Assembly, which unanimously adopted it. This
was the Statute of the PCIJ.
The
Assembly took the view that a vote alone would not be sufficient to establish
the PCIJ and that each State represented in the Assembly would formally have to
ratify the Statute. In a resolution of 13 December 1920, it called
upon the Council to submit to the Members of the League of Nations a protocol
adopting the Statute and decided that the Statute should come into force as
soon as the protocol had been ratified by a majority of Member States. The
protocol was opened for signature on 16 December. By the time of the next
meeting of the Assembly, in September 1921, a majority of the Members of
the League had signed and ratified the protocol. The Statute thus entered into
force. It was to be revised only once, in 1929, the revised version coming into
force in 1936. Among other things, the new Statute resolved the previously
insurmountable problem of the election of the members of a permanent
international tribunal by providing that the judges were to be elected
concurrently but independently by the Council and the Assembly of the League,
and that it should be borne in mind that those elected “should represent the
main forms of civilization and the principal legal systems of the world”.
Simple as this solution may now seem, in 1920 it was a considerable achievement
to have devised it. The first elections were held on
14 September 1921. Following approaches by the Netherlands Government
in the spring of 1919, it was decided that the PCIJ should have its permanent
seat in the Peace Palace in The Hague, which it would share with the Permanent
Court of Arbitration. It was accordingly in the Peace Palace that on
30 January 1922 the Court’s preliminary session devoted to the
elaboration of the Court’s Rules opened, and it was there too that its
inaugural sitting was held on 15 February 1922, with the Dutch jurist
Bernard C. J. Loder as President.
The
PCIJ was thus a working reality. The great advance it represented in the
history of international legal proceedings can be appreciated by considering
the following:
- unlike arbitral tribunals, the
PCIJ was a permanently constituted body governed by its own Statute and
Rules of Procedure, fixed beforehand and binding on parties having
recourse to the Court;
- it had a permanent Registry
which, inter alia, served as a channel of communication with
governments and international bodies;
- its proceedings were largely
public and provision was made for the publication in due course of the
pleadings, of verbatim records of the sittings and of all documentary
evidence submitted to it;
- the permanent tribunal thus
established was now able to set about gradually developing a constant
practice and maintaining a certain continuity in its decisions, thereby
enabling it to make a greater contribution to the development of
international law;
- in principle the PCIJ was
accessible to all States for the judicial settlement of their
international disputes and they were able to declare beforehand that for
certain classes of legal disputes they recognized the Court’s jurisdiction
as compulsory in relation to other States accepting the same obligation.
This system of optional acceptance of the jurisdiction of the Court was
the most that it was then possible to obtain;
- the PCIJ was empowered to give
advisory opinions upon any dispute or question referred to it by the League
of Nations Council or Assembly;
- the Court’s Statute
specifically listed the sources of law it was to apply in deciding
contentious cases and giving advisory opinions, without prejudice to the
power of the Court to decide a case ex aequo et bono if the parties
so agreed;
- it was more representative of
the international community and of the major legal systems of the world
than any other international tribunal had ever been before it.
Although
the Permanent Court of International Justice was brought into being through,
and by, the League of Nations, it was nevertheless not a part of the League.
There was a close association between the two bodies, which found expression inter
alia in the fact that the League Council and Assembly periodically elected
the Members of the Court and that both Council and Assembly were entitled to
seek advisory opinions from the Court, but the latter never formed an integral
part of the League, just as the Statute never formed part of the Covenant. In
particular, a Member State of the League of Nations was not by this fact alone
automatically a party to the Court’s Statute.
Between
1922 and 1940 the PCIJ dealt with 29 contentious cases between States and
delivered 27 advisory opinions. At the same time several hundred treaties,
conventions and declarations conferred jurisdiction upon it over specified
classes of disputes. Any doubts that might thus have existed as to whether a
permanent international judicial tribunal could function in a practical and
effective manner were thus dispelled. The Court’s value to the international
community was demonstrated in a number of different ways, in the first place by
the development of a true judicial technique. This found expression in the
Rules of Court, which the PCIJ originally drew up in 1922 and subsequently
revised on three occasions, in 1926, 1931 and 1936. There was also the
PCIJ’s Resolution concerning the Judicial Practice of the Court, adopted
in 1931 and revised in 1936, which laid down the internal procedure to be
applied during the Court’s deliberations on each case. In addition, whilst
helping to resolve some serious international disputes, many of them
consequences of the First World War, the decisions of the PCIJ at the same time
often clarified previously unclear areas of international law or contributed to
its development.
For
more information on the Permanent Court of International Justice, please see
the "PCIJ" pages on our website.
The
outbreak of war in September 1939 inevitably had serious consequences for
the PCIJ, which had already for some years known a period of diminished
activity. After its last public sitting on 4 December 1939, the
Permanent Court of International Justice did not in fact deal with any judicial
business and no further elections of judges were held. In 1940 the Court
removed to Geneva, a single judge remaining at The Hague, together with a few
Registry officials of Dutch nationality. It was inevitable that even under the
stress of the war some thought should be given to the future of the Court, as
well as to the creation of a new international political order.
In
1942 the United States Secretary of State and the Foreign Secretary of the
United Kingdom declared themselves in favour of the establishment or
re-establishment of an international court after the war, and the
Inter-American Juridical Committee recommended the extension of the PCIJ’s
jurisdiction. Early in 1943, the United Kingdom Government took the initiative
of inviting a number of experts to London to constitute an informal
Inter-Allied Committee to examine the matter. This Committee, under the
chairmanship of Sir William Malkin ( United Kingdom), held
19 meetings, which were attended by jurists from 11 countries. In its
report, which was published on 10 February 1944, it recommended:
- that the Statute of any new
international court should be based on that of the Permanent Court of
International Justice;
- that advisory jurisdiction
should be retained in the case of the new Court;
- that acceptance of the
jurisdiction of the new Court should not be compulsory;
- that the Court should have no
jurisdiction to deal with essentially political matters.
Meanwhile,
on 30 October 1943, following a conference between China, the USSR,
the United Kingdom and the United States, a joint declaration was issued
recognizing the necessity “of establishing at the earliest practicable date a
general international organization, based on the principle of the sovereign equality
of all peace-loving States, and open to membership by all such States, large
and small, for the maintenance of international peace and security”.
This
declaration led to exchanges between the Four Powers at
Dumbarton Oaks, resulting in the publication on 9 October 1944
of proposals for the establishment of a general international organization, to
include an international court of justice. The next step was the convening of a
meeting in Washington, in April 1945, of a committee of jurists representing
44 States. This Committee, under the chairmanship of
G. H. Hackworth ( United States), was entrusted with the preparation
of a draft Statute for the future international court of justice, for
submission to the San Francisco Conference, which during the months of
April to June 1945 was to draw up the United Nations Charter. The draft
Statute prepared by the Committee was based on the Statute of the PCIJ and was
thus not a completely fresh text. The Committee nevertheless felt constrained
to leave a number of questions open which it felt should be decided by the
Conference: should a new court be created? In what form should the court’s
mission as the principal judicial organ of the United Nations be stated? Should
the court’s jurisdiction be compulsory, and, if so, to what extent? How should
the judges be elected? The final decisions on these points, and on the
definitive form of the Statute, were taken at the San Francisco Conference, in
which 50 States participated. The Conference decided against compulsory
jurisdiction and in favour of the creation of an entirely new court, which
would be a principal organ of the United Nations, on the same footing as the
General Assembly, the Security Council, the Economic and Social Council, the
Trusteeship Council and the Secretariat, and with the Statute annexed to and
forming part of the Charter. The chief reasons that led the Conference to
decide to create a new court were the following:
- as the court was to be the
principal judicial organ of the United Nations, it was felt inappropriate
for this role to be filled by the Permanent Court of International
Justice, which had up until then been linked to the League of Nations,
then on the point of dissolution;
- the creation of a new court was
more consistent with the provision in the Charter that all Member States
of the United Nations would ipso facto be parties to the court’s
Statute;
- several States that were
parties to the Statute of the PCIJ were not represented at the
San Francisco Conference, and, conversely, several States represented
at the Conference were not parties to the Statute;
- there was a feeling in some
quarters that the PCIJ formed part of an older order, in which European
States had dominated the political and legal affairs of the international
community, and that the creation of a new court would make it easier for
States outside Europe to play a more influential role. This has in fact
happened as the membership of the United Nations grew from 51 in 1945 to
192 in 2006.
The
San Francisco Conference nevertheless showed some concern that all continuity
with the past should not be broken, particularly as the Statute of the PCIJ had
itself been drawn up on the basis of past experience, and it was felt better
not to change something that had seemed to work well. The Charter therefore
plainly stated that the Statute of the International Court of Justice was based
upon that of the PCIJ. At the same time, the necessary steps were taken for a
transfer of the jurisdiction of the PCIJ so far as was possible to the International
Court of Justice. In any event, the decision to create a new court necessarily
involved the dissolution of its predecessor. The PCIJ met for the last time in
October 1945 when it was decided to take all appropriate measures to
ensure the transfer of its archives and effects to the new International Court
of Justice, which, like its predecessor, was to have its seat in the Peace
Palace. The judges of the PCIJ all resigned on 31 January 1946, and
the election of the first Members of the International Court of Justice took
place on 6 February 1946, at the First Session of the United Nations
General Assembly and Security Council. In April 1946, the PCIJ was
formally dissolved, and the International Court of Justice, meeting for the
first time, elected as its President Judge José Gustavo Guerrero (
El Salvador), the last President of the PCIJ. The Court appointed the
members of its Registry (largely from among former officials of the PCIJ) and
held an inaugural public sitting, on the 18th of that month. The first case was
submitted in May 1947. It concerned incidents in the Corfu Channel and was
brought by the United Kingdom against Albania.
Walang komento:
Mag-post ng isang Komento