The Advisory Committee of Jurists (1920)

Home , February 1920, International court, July 1920

CHAPTER THREE

THE STATUTES

3.1. League of Nations Covenant, Article 14: The Advisory Committee of Jurists (1920)

With the end of the First World War following the Armistice of 11 November 1918, preparations for the peace conference were put in hand. They included proposals to set up a general association of nations for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small States alike, in the words of President Wilson’s XIV Points. With these proposals was the idea that to be complete, an international court should be included among the new organization’s principal organs. That, in turn, led to a revival of the efforts to establish a permanent international court, efforts which had been suspended at the 1907 Conference for the reasons explained in Chapter 2, § 2.2 above. Several plans for such a court were drawn up, some before the signing of the Treaty of Versailles (28 June 1919), when it was thought that the court would be part of the new League of Nations, and some after that date, when it had been decided that a new court would be created apart from the League. Most of those plans addressed the major issues left open in the 1907 Con- ference. Others went further and contained detailed proposals for the work- ing of a permanent international court. The Peace Conference accepted the principle of the establishment of such a court but left the details for future action. Article 14 of the Covenant of the League of Nations, which was Part I of the Peace Treaties of 1919, required the League Council to formulate plans for the establishment of a Permanent Court of International Justice and submit them to the members of the League for adoption. That Court would be empowered to hear and determine any dispute of an international character [tous différends de caractère international] which the parties to the dispute might submit to it. It could also give an advisory opinion upon any dispute or question referred to it by the Assembly or the Council of the League. The Council quickly set to work. On 14 February 1920, at its second session it established the Advisory Committee of Jurists to prepare plans for the establishment of the Court. That was the beginning of the political process that at

ROSENNE_f4_26-47.indd 27 6/27/2007 3:50:26 PM 28 Chapter Three. The Statutes

the end of 1920 led to the adoption of the Statute of the Permanent Court of International Justice. The election of the members of the Permanent Court took place at the second session of the League Assembly in 1921 and the Court was established as a functioning judicial organ in 1922. The Advisory Committee of Jurists was in session at The Hague from 10 June to 24 July 1920.1 For the most part the Committee was concerned with the major issues of the organization and constitution of the Court, its composition, and its contentious jurisdiction. These were the principal matters left open at the 1907 Conference with regard to the proposed Court of Arbitral Justice. The Committee settled the question of the composition of the Court – the system of the election of the judges simultaneously by the Council and Assembly of the League, the institution of judges ad hoc and the composition of the Court (Bench) for any case in the system that formally has been maintained in the combined Charter of the United Nations and Statute of the International Court of Justice to this day. The basis for this was the so-called Root-Phillimore Plan, named after the American and British members of the Committee who put it forward. The constitution of the Court was left for the Assembly to decide – and that led to the Protocol of Signature of the Statute of the Permanent Court of International Justice as an instrument independent of the Covenant and hence of the Peace Treaties of 1919.2 The issue of jurisdiction raised the question whether Article 14 of the Covenant required that the Court’s jurisdiction over legal disputes should be compulsory. The Committee gave a positive answer to that question and proposed a system by which the Court’s jurisdiction over a series of categor- ies of dispute would be compulsory. That system did embody one major innovation in comparison with earlier arbitration practice. It envisaged the

1 See Permanent Court of International Justice, Advisory Committee of Jurists, Procès- verbaux of the Proceedings (1920, reprinted 2006 by Lawbook Exchange, Union NJ, and distributed by W.S. Hein and Co. Inc., Buffalo NY), hereafter Procès-verbaux; Permanent Court of International Justice, Advisory Committee of Jurists, Documents presented to the Committee relating to Existing Plans for the Establishment of a Permanent Court of International Justice (London n. d. [1920]), hereafter Documents. The rst publication is also known as Vol. II, referred to as such in some of the contemporary documentation. The Committee was composed as follows: M. Adatci (Japan), R. Altamira (Spain), C. Bevilaqua, replaced by Raoul Fernandes (Brazil), Baron Descamps (Belgium), F. Hagerup (Norway), A. de Lapradelle (France), B.C.J. Loder (the Netherlands), Lord Phillimore (United Kingdom), A. Ricci-Busatti (Italy), and E. Root with J.B. Scott as legal adviser (United States of America). Baron Descamps was elected President and Loder Vice-President of the Committee. 2 For the Protocol of Signature relating to the Statute of the Permanent Court of Inter- national Justice, provided for in Art. 14 of the Covenant of the League of Nations, see 6 LNTS 379. The Protocol of Signature entered into force on 20 August 1921.

ROSENNE_f4_26-47.indd 28 6/27/2007 3:50:26 PM