Legacy of the Statute of the Permanent Court of International Justice, 100 Years Onward

The centenary of the adoption of the Statute of the Permanent Court of International Justice (predecessor to the International Court of Justice) passed this month with relatively little fanfare. As the affiliated court of the League of Nations, casual observers may indeed be inclined to consign the PCIJ’s Statute to the same legacy as the Covenant of its parent organisation — a profound failure, which returned the world to self-destruction within a generation. Yet in its innovations as well as its shortcomings, the framing of the first World Court continues to influence the character of the international bench and the concept of access to justice on the international plane.

Impacts on the Character of the International Bench

The 1920 preparatory works of the Hague Committee of Jurists have impacted the PCIJ’s successor institution in far-reaching ways, as much of the ICJ Statute was copied verbatim from the PCIJ Statute in 1945. The ICJ has invoked this earlier travaux préparatoires in cases which illustrate the Committee’s influence on the character of the Court’s procedural powers, such as its conception of incidental proceedings concerning provisional measures (in LaGrand) and third-state intervention (in Tunisia/Libya). Sir Percy Spender’s declaration appended to the final South West Africa Judgment—rather than illuminate the most controversial Presidential casting vote in the Court’s history—is simply a meta-exegesis of the 1920 origins of Article 57 of the Statute (in order to disparage his colleagues for opining on the merits of the case in their dissents).

Perhaps the most extensive influence of the Hague Committee’s work on the character of the ICJ bench was its decision to confer upon the judges a broad gap-filling power to “frame rules” of procedure under Article 30 of the Statute. This marked a significant turn from the adoption of ad hoc rules in consultation with parties in arbitration. Given the role of political organs in the codification of rules of judicial procedure in many domestic jurisdictions, it is not implausible that the PCIJ Statute might have instead provided for greater oversight by the Assembly or Council of the League. The rules adopted by the PCIJ would, in fact, long outlive the PCIJ itself, as its 1936 Rules of Court were adopted largely verbatim by the fledgling ICJ. All of the Court’s influential procedural jurisprudence prior to its comprehensive 1978 revision of the Rules are thus grounded in the PCIJ’s construction of its Article 30 powers. This reflects the “chain of continuity” envisaged at the 1945 San Francisco Conference, which predicted that “the 1945 Statute will garner what has come down from the past [and] continuity in the progressive development of the judicial process will be amply safeguarded” [v. 13, p. 307].

By creating what Rosenne dubbed “constancy [in] the development of procedural law [as] an autonomous branch of international law” [p. 1028], the PCIJ Statute’s establishment of a rule codification process engendered similar approaches to judicial management in other courts, including those hearing mixed disputes. The broader cross-fertilization of the PCIJ Statute in the procedures of these tribunals ranges from non-appearance in the Protocol of the Court of Justice of the African Union to the rules for appointing experts in the pending Ukraine v. Russia arbitration. We see the Hague Committee’s shadow in the interpretation of awards under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, and the revision of judgments under the Statute of the International Tribunal for Rwanda. Yet this phenomenon is most clearly seen in rules concerning the constitution of the bench, which largely survived the 1945 adaptation despite criticisms from some Allied Powers [¶ 45], and deep divide within the ICJ Statute’s drafting committee. [v. 14, pp. 195, 825].

In this light, the PCIJ Statute is reflected in the establishment of a geographically representative bench (e.g., the World Trade Organization Appellate Body), the reliance on majoritarian judicial elections (e.g., the International Tribunal for the Law of the Sea), the staggering of nine-year judicial terms (e.g., the European Court of Human Rights), continued service after the expiration of terms (e.g., the International Criminal Tribunal for the Former Yugoslavia), the appointment of judges ad hoc (e.g., the Inter-American Court of Human Rights), specific standards of judicial independence and impartiality (e.g., the African Court of Human and Peoples’ Rights), and the process for removal from the bench (e.g., the Court of Justice of the European Union). The progressive development envisaged in both 1920 and 1945 emerges in the establishment of an advisory committee on judicial nominations to the International Criminal Court, an innovation guided by the PCIJ Statute’s objectives of depoliticization and quality assurance. In nominations to the World Court, the Statute has even sustained institutions predating the PCIJ, as the role it confers on national groups of the Permanent Court of Arbitration enlarged membership in the PCA’s founding treaties during—and despite—a half-century of near-dormancy.

For its part, the ICJ continues to take steps to achieve greater conformity with the letter and spirit of the PCIJ Statute regarding the responsibilities of judges sitting on the World Court. In his 2018 announcement that judges will refuse offers to serve as arbitrators in investor-state disputes, President Yusuf affirmed the clear directive in Article 16 of both Statutes that they may not “engage in any other occupation of a professional nature” [pp. 11-12]. Yet this policy’s distinction between inter-state and mixed disputes recalls the PCIJ Statute’s second principal legacy—the restriction of non-state participation in international justice.

Impacts on Access to International Justice

The PCIJ Statute limited access to states (or their separately admitted colonies) despite prior attempts to innovate beyond inter-state participation in the statutes of the International Prize Court and the Central American Court of Justice. The adoption of a similar prerequisite in Article 34 of the ICJ Statute has kept the Court increasingly out of step with developments in international law and international dispute settlement. Yet while the Hague Committee unanimously considered that access “must be given a basis which, though restricted, would, for that very reason, be firmer and more substantial”, it observed that this was “without prejudice to any subsequent development” of the Court [p. 723]. The ICJ has continued to draw upon the Committee’s deliberation of broader institutional access requirements, most explicitly in the analysis of Article 35 of the Statute in the Use of Force cases.

Stepping further into Chapter II of the Statute, we see the formulation of the PCIJ’s jurisdiction in Article 36 which underlines its classic Mavrommatis dictum on the requirement of crystallized disputes (and the scope of compétence de la competence). The ICJ has continued to build upon this pronouncement, at times inviting criticism. For example, in Georgia v. Russia, Judge Abraham considered that the Court had mischaracterized the PCIJ’s interpretation of Article 36. Yet the Court has since treated this case as another link in the “chain of continuity”. Indeed, in his declaration appended to the Marshall Islands v. UK Judgment, President Abraham would frame his casting vote as a continuation of Georgia v. Russia, emphasizing the precedential force of this lineage. In finding no requirement to crystallize disputes by exhausting negotiations, the ICJ in Cameroon v. Nigeria observed that the League of Nations had rejected the Hague Committee’s proposal to include this precondition in the Statute. Notably, the Committee’s Article 36 draft had paired this with its doomed proposal of compulsory jurisdiction [p. 726]. Its establishment of an incorporation clause in Article 37 of the Statute—adapted in 1945 to redirect to the ICJ disputes under treaties referring to the PCIJ, with a provision similarly incorporating unilateral declarations—recalls that long-ago turn towards voluntarist jurisdiction. The Court most recently illustrated this point in the three Costa Rica v. Nicaragua Judgments of 2018, which were founded upon a PCIJ-era declaration.

The Great Powers’ rejection of the Committee’s proposed system of compulsory jurisdiction—which Hudson characterized as “the outstanding feature of the draft-scheme to occupy the attention of the Council and the Assembly” [p. 191]—recalls that the PCIJ Statute was drafted in isolation from the Covenant of the League, and adopted as a standalone instrument. As Article 1 of the PCIJ Statute preserved a complementary relationship between the Court and other dispute settlement bodies, this voluntarist jurisdiction may be seen to have prefigured the free choice of dispute settlement means in Article 33 of the UN Charter, enabling the 21^st century renaissance of arbitration. The sui generis compromise of 1920—an ‘Optional Clause’ protocol separate from the Covenant and the Statute—contributes to this multiplicity, raising questions as to the relationship between distinct sources of jurisdiction in the 2007 Nicaragua v. Colombia and 2017 Somalia v. Kenya Judgments.

Arguably the Hague Committee’s most famous innovation, Article 38 of the Statute has come to be seen as a codification of the recognized sources of international law. The Committee’s formulation illustrates how Chapter II continues to restrict not only who appears before the World Court, but also who contributes to international law. The International Law Commission’s 2018 Draft conclusions on identification of customary international law [Conclusion 4], and 2020 Report on general principles of law [Draft conclusion 2], affirm this legacy by generally limiting law-creation on the international plane to the practice and recognition of state actors. Viewing these works alongside its 1958 Model Rules on Arbitral Procedure (which transposed the verbatim text of Article 38 to ad hoc arbitration), we see that the ILC has throughout its history ingrained both the limitations and potential reach of the Statute.

The statist and voluntarist limitations on the PCIJ’s contentious jurisdiction have, by necessity, fostered creativity in access to justice before the World Court. This is perhaps most evident in the evolution of requests for advisory opinions. Notably, the 1920 Statute included no express reference to advisory jurisdiction. The Hague Committee had indeed proposed such a provision, but its draft text was criticized as “lacking in clearness and likely to give rise to practical difficulties” by referring certain advisory requests to chambers of the Court [pp. 390, 397]. The defeat of this draft article thus ensured that the Court’s advisory opinions would be legitimized though the imprimatur of its plenary authority. Contemporary scholars have observed that this development essentially gave advisory opinions “the characteristics of a declaratory judgment” [p. 58]—and thus an emerging channel for access to justice in live disputes, as seen in the ICJ’s 2019 Chagos Opinion. In this manner, both the text and omissions of the PCIJ Statute continue to reverberate through international practice today.