The Permanent Court of International Justice: Statute, Judges and First Cases

Article 14 of the League of Nations Covenant, adopted after the First World War, required the Council to formulate plans for a permanent court. In the summer of 1920, legal experts including the American jurist Elihu Root drafted the arrangements in The Hague. After amendments by the Council and Assembly, the Assembly adopted the statute on 13 December. Participating states still had to sign and ratify a separate protocol; the statute took effect once a majority of League members had ratified.

The arrangement separated planning the institution from accepting its judicial framework. The statute accommodated League members and provided avenues for other states to use the court. A statement submitted to the U.S. president by Secretary of State Charles Evans Hughes in 1923 still discussed conditions for American participation. While the American judge Moore served on the court, the U.S. government continued negotiations over joining the protocol.

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The first members elected in September 1921 included eleven regular judges, among them Bernard Loder of the Netherlands, John Bassett Moore of the United States and Yorozu Oda of Japan. Four deputy judges included Wang Chung-hui of China. Deputies filled seats when regular judges were absent.

Candidates were principally nominated by national groups of the Permanent Court of Arbitration. The League Assembly and Council voted separately, with candidates needing an absolute majority in each body. Terms lasted nine years, and elections were also to take account of representation of the principal legal systems. Judges served independently. The statute restricted regular judges from holding political or administrative offices, distinguishing them from agents representing states in proceedings.

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The court formally began work in The Hague on 15 February 1922, with Loder as president. It had a Registry; its first opinions and judgments were signed by Registrar Åke Hammarskjöld and the president. The statute designated French and English as official languages and required the Registrar to receive applications, notify the states concerned and circulate written materials between parties.

The League funded the court under arrangements determined by the Assembly. League bodies also set judicial remuneration, which could not be reduced during a judge’s term. Proceedings began with pleadings, replies and documents, followed by oral statements from agents, counsel, witnesses and experts. A standing statute, staff and documentary procedures spared states from assembling a new arbitration panel for every dispute.

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The court’s earliest work concerned the operation of the International Labour Organization. When selecting a workers’ delegate for the Third International Labour Conference in 1921, the Dutch government chose a person jointly recommended by three trade-union organizations. The largest individual union objected, claiming the nomination right. Through the International Labour Office and League Council, the dispute became a request to interpret Article 389 of the Treaty of Versailles.

The court notified governments and international trade-union organizations, received a Dutch memorandum and publicly heard representatives of Britain, the Netherlands, the International Labour Office and unions. Its opinion of 31 July 1922 held that representativeness could not be assessed solely by the size of one organization. Governments should seek agreement among representative organizations, while a single organization could not veto a candidate jointly supported by the others. The court upheld the appointment; its opinion returned to the International Labour Office to guide subsequent selections.

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On 12 August that year, the court addressed whether the ILO could deal with agricultural labour conditions. The treaty’s labour-protection objectives included agricultural workers, so references to industry could not be confined to factory manufacturing. A separate opinion, however, distinguished this authority from a general power to plan agricultural production methods. Together the opinions established the institution’s scope.

In 1923, Britain, France, Italy and Japan sued Germany after the steamship Wimbledon was denied passage through the Kiel Canal; Poland intervened. The states submitted pleadings, replies and rejoinders. Following public hearings in July, the court ruled on 17 August that Germany had breached its treaty obligation to permit navigation and must compensate the French chartering company. A dispute unresolved through diplomacy thus produced a judgment stating reasons, compensation and a deadline for payment.

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The court’s jurisdiction rested principally on states submitting disputes, treaty provisions and declarations voluntarily accepting compulsory jurisdiction. Only states could be parties in contentious cases. In the Eastern Carelia matter in 1923, Soviet Russia refused to participate. The court considered that its consent was lacking and the facts could not be sufficiently established, and declined to issue the requested advisory opinion.

The early court offered governments and international organizations a common legal procedure. Nominations, elections, appropriations, service of documents and hearings together enabled the new institution’s daily work. Judgments and separate opinions also created a legal record available for public discussion.

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