THE PERMANENT COURT OF INTERNATIONAL JUSTICE

As finally adopted by the Assembly of the League of Nations, the project for a Permanent Court of International Justice, drafted by the Advisory Committee of Jurists at The Hague in July, 1920,1 consists of 64 articles, to which is attached a very clever protocol of signature, which will permit the nations preferring the original draft of the Advisory Committee to sue and be sued without a special agreement. The protocol of signature is, therefore, to be considered as an integral part of the project, although it might not seem to be such at first sight. The project consists of three chapters, the first on the organization of the court, and made up of Articles 2 to 33, inclusive; the second, on the competence of the court, consists of Articles 34 to 38, inclusive; the third, dealing with procedure, consists of Articles 39 to 64, inclusive. To these there is prefixed the first article in the nature of a preamble, which is substantially identical with the corresponding article of the project drafted by the Advisory Committee of Jurists.

The section of the Advisory Committee's project devoted to procedure fared best at the hands of the Council and the Assembly. The section devoted to the organization of the court was retained in its main features, although many modifications, largely in the nature of additions, were made to it. Chapter 2, devoted to the competence of the court, has disappeared, and it has been replaced by new articles which in many instances are based upon the original draft of the Advisory Committee, where those articles were not opposed to the views of the Assembly, which, on more than one occasion, appeared to prefer the Court of Arbitral Justice of 1907 to the Permanent Court of International Justice of 1920.

Some of these changes are of importance and require consideration, whereas others are matters of form or of lesser importance. The method of appointing the judges is preserved intact. The right of a national to sit upon the bench in the trial and disposition of a case is retained, as is also the right to appoint a judge for the trial and disposition of a case if a country has not a judge of its own nationality in the court. These provisions justified the meeting of the Advisory Committee, and its members would deserve to be held in grateful remembrance if they had inserted them in the proper place in the draft of the Court of Arbitral Justice of 1907 and thereupon adjourned. They attempted, however, to do what some of its members thought to be possible in 1920, but which proved to be as impossible then as in 1907. It is doubtless a sad reflection, but it 1 The original draft was printed in the Supplement to the Journal for October, 1920, p. 371. An editorial comment in the same issue gave the circumstances under which the draft was prepared and briefly explained its provisions. The action upon the draft by the Council of the League of Nations was related in the last number of the JOURNAL, p. 52.

is a true one, that the world of 1920 is made up of people very much like those of 1907, and until other conceptions have found lodgment in the mind and practice of nations their conduct in the future will be much like that of the past.

There was a conscious omission in Article 4 of the Committee's draft. It was pointed out in discussion, but it was thought advisable to leave it to the Council or the Assembly. There are some newcomers in the Society of Nations since 1907, as the consequence of the World War. As they have not as yet adhered to the Pacific Settlement Convention of 1907, they have not appointed their members of the Permanent Court of Arbitration, who, divided into national groups, are to prepare lists of judges to be presented to the Council and Assembly of the League for their consideration.

In the next place, there is a modification in Article 5 which is a decided improvement. Mr. Root had proposed that each national group should nominate four persons, only two of whom could be fellow-countrymen of the members of the national group. Baron Descamps, president of the Advisory Committee, and Mr. de Lapradelle, one of its members, insisted upon not more than two, and the committee somewhat reluctantly yielded to their insistence. Mr. Hagerup was especially desirous that the number should be larger, so that the Council and Assembly should have the largest practicable list of competent persons from whom to make their choice. He was willing-indeed he proposed that the candidates nominated should never be more than double the number of seats to be filled. Rejected in the Advisory Committee, this provision was adopted by the Assembly. It is believed that this modification is a decided improvement upon the original plan.

Articles 16 and 17 contain a modification of a very important nature, inasmuch as it shows an intention on the part of the Assembly to discriminate between the ordinary members of the court, on the one hand, and the deputy judges on the other. These two articles gave the Advisory Committee no end of trouble. It was their desire, as it doubtless was that of the Assembly, to secure the impartiality of the judges in so far as impartiality can be made by a provision to that effect. After much discussion, they agreed upon an article declaring the position of judge to be incompatible with the exercise of any function belonging to "the political direction, national or international, of States." There is no distinction here, between ordinary and deputy judges. Both were covered as members of the court. There was, however, a very decided feeling that a distinction should be drawn between an ordinary judge called upon to sit regularly in the international court, and a deputy judge, who might or might not be called upon to sit during the period for which he was elected. The partisans of deputy judges, who looked upon them as persons likely to be chosen as ordinary judges at later elections, advocated

that there should be no distinction-the phrase "nursery of the court" was applied to them on more than one occasion during the discussion,that the qualifications of each should be the same in all respects, even including salary. The Assembly did not share these views. It therefore modified Article 16 by providing that "the ordinary members of the court may not exercise any political or administrative function," and it expressly stated that it did not apply to deputy judges "except when performing their duties on the court.'

In Article 17 of the original project, reproducing Article 7 of the draft convention for the Court of Arbitral Justice, it was provided that no member of the court, including ordinary judge and deputy judge, should act as agent, counsel or advocate in any case of an international nature. This the Assembly left untouched, but expressly removed the deputy judges from the inhibition, except "as regards cases in which they are called upon to exercise their functions on the court." This can only mean that the ordinary judges are looked upon as judicial officers during the entire period of their appointment, whereas the deputy judges are only to be considered as such during actual service upon the bench. This distinction was followed by the Assembly in fixing the salaries and allowances of the members of the court in conformity with Article 32 of the statute. Ordinary judges receive an annual salary in addition to duty allowances, whereas deputy judges are paid only for the time they are actually in the service of the court. If a military expression be permitted, the ordinary judges are always in active service, the deputy judges are in the reserve, subject to call.

Such are the principal modifications until Article 26 is reached, at which point three articles, by way of an addition, are inserted in the text, providing a special and a preferred situation for the treatment of labor disputes and those arising out of the sections of the various peace treaties dealing with transit and communications.

Article 26 provides that labor cases, referred to in Part XIII in the Treaty of Versailles and like provisions in the other peace treaties, may be tried by the Permanent Court of International Justice as any other case, or, at the request of parties, by a special chamber consisting of five judges "selected so far as possible with due regard to the provisions of Article 9." Two deputy judges are to be chosen to replace in case of need an ordinary judge who is unable to sit. In all cases, the judges are to be assisted by four technical assessors, sitting with them, but without the right to vote, and "chosen with a view to insuring a just representation of competing interests."

It does not appear that each of the parties litigant is to have a judge of its own nationality, and this could not very well be the case inasmuch as the chamber of five judges is to be appointed for three years and therefore in advance, it is to be presumed, of such prospective litigation. If

one of the parties should have a judge of its own nationality, what is to be done? According to procedure in other cases, a national of the other litigating nations would be added, and if neither litigant had, each would choose a judge for the trial and disposition of the case. Apparently, if each of the parties has a judge upon the special chamber, they are to remain, but if only one has, the article provides that the President is to invite one of the other judges to retire in favor of a judge of the other party chosen in accordance with Article 31 of the project. That is to say, if both litigants are represented in the chamber, well and good. If one is, the other must be, so as to preserve equality at the moment when it counts. Apparently, if neither has, the equality exists and there seems to be no provision for each of the litigating parties to add a judge, as is the case of the ordinary procedure of the court. The assessors are to be chosen by the court in each case according to the rules of court to be prepared under the authority of Article 30 from a list of "assessors for labor cases." Each member of the League of Nations is to nominate two persons and two are to be nominated by the Governing Board of the Labor Office. One-half of the persons nominated by the Governing Board are to represent workmen and the other half employers, from the list referred to in Article 412 of the Treaty of Versailles and the like treaties. The International Labor Office may furnish the court with "all relevant information," and for this purpose the Director thereof is to receive copies of the written proceedings.

Article 28 deals with cases relating to transit and communications, especially those referred to in Part XII, Ports, Waterways, and Railways, in the Treaty of Versailles and in other peace treaties. The court as ordinarily constituted may try any and all of these cases. If, however, the parties prefer, they may be passed upon by a special chamber of five judges elected in the same way as in the preceding article. Four technical assessors may sit with the court if the parties so desire or if the court so decides. Their presence is not obligatory, as in the case of labor cases. They are to be chosen from a list of "Assessors for Transit and Communications Cases," made up of two persons nominated by each member of the League. The provisions concerning the nationality of the judge are the same as in labor cases.

Such are the main features of the procedure to be followed in the case of this special category of cases. There is one further deviation from general procedure in that the special chambers may, with the consent of the parties to the dispute, sit elsewhere than at The Hague, although the court in full bench is to be located in that city.

There are a few changes of form in the remaining articles of the first chapter, but none it is believed of substance, so that, on the whole, it may be said that the really important part of the project drafted by the Advisory Committee has stood the assaults of Council and Assembly and

has stood them well. The modified procedure in cases of labor and in transit and communications cases may or may not justify itself. There is something to be said in its favor, inasmuch as these cases may be of a highly technical nature. There is something to be said against it, in that certain cases are given preferred treatment. Time will tell whether the modification is wise or unwise. In any event, it does not affect the broad lines of the scheme.

Chapter 2, on the competence of the court, which was to register the advance of 1920 over 1907, had hard luck, to put it mildly, with the Council and with the Assembly. As already has been stated, it was replaced by a series of articles drafted by the Assembly. Misery, it is said, likes company, and if this applies to the elect of the world as well as to the groundings, the members of the Advisory Committee may take some comfort in the fact that the recommendations of the Council regarding this portion of the draft found scant favor with the Assembly, and were rejected by that body for articles of its own composition. The cause for the drastic action of the Assembly, and to a certain degree of the Council, is easy to understand. The Advisory Committee carried over Article 13 of the Covenant into its project, on the theory that the court should have some definite jurisdiction and a certain category of cases in which nation sues nation as man sues man in national courts. The Advisory Committee was not sure that the Covenant was so worded as to vest the court with this jurisdiction in this category of cases, but the majority of its members thought it to be their duty to recommend it in the knowledge that the approval of such jurisdiction in the specified cases by the Council and the Assembly would create an obligation, if it did not exist according to the exact wording of the Covenant. This theory is correct and can not be gainsaid, but neither the Council nor the Assembly was willing to accept and to give effect to the recommendation. No nation is to be forced to appear before the tribunal as defendant and judgment taken in the case presented by the plaintiff in the defendant's absence, should the State invited fail to attend. The Assembly frankly preferred the method of 1907, which contemplated a special or general agreement of the parties to resort to the court, which of course means that the method of arbitration with the compromis and all that it entails is to be the rule instead of the procedure before a national court of justice, in which each party presents its case and allows the court to decide, without requiring an agreement on the part of the parties upon the point at issue, and what is more important, upon the submission of their views to the tribunal.

But a happy compromise was reached. It was suggested, and the suggestion found favor, that the general rule could be varied by the parties. Those who wished the procedure characteristic of a court of arbitration, which was the rule adopted by the Assembly, were satisfied. Those nations, on the other hand, which wished to vest the court with jurisdiction