The Permanent Court of International Justice, 1920-1942

By Manley O. Hudson; Bureau of International Research of Harvard University and Radcliffe College | Go to book overview

CHAPTER 22 ADVISORY JURISDICTION

§465. Legal Basis of Advisory Jurisdiction. The general nature and powers of the Court depend upon a single international instrument, viz., the Protocol of Signature of December 16, 1920 and the annexed Statute. Historically this instrument is due to the provisions in Article 14 of the Covenant of the League of Nations; but it is not to be thought that for this reason the Court derives character directly from the Covenant. Indeed the Protocol of Signature of December 16, 1920 was open to signature by States not parties to the Covenant of the League of Nations, and, therefore, not bound by the provisions in Article 14 of the Covenant; if any such State had become a party to the Protocol of Signature, it would not thereby have agreed to provisions in the Covenant except to the extent that such provisions had been incorporated into the Statute.

The original Statute made no express reference to advisory opinions. The 1920 Committee of Jurists had proposed an article concerning advisory opinions,1 but its proposal was rejected in the First Assembly of the League of Nations. The opinion was expressed at that time that as "the Covenant, in Article 14, contained a provision in accordance with which the Court could not refuse to give advisory opinions," it "was therefore unnecessary to include a rule to the same effect in the Constitution of the Court";2 but no explanation was offered as to the way in which Article 14 of the Covenant was to be made applicable.

Article 1 of the Statute states that the Court was established "in accordance with Article 14 of the Covenant of the League of Nations";

____________________
1
Article 36 of the draft-scheme of the 1920 Committee of Jurists provided:
"The Court shall give an advisory opinion upon any question or dispute of an inter-national nature referred to it by the Council or Assembly.
"When the Court shall give an opinion on a question of an international nature which does not refer to any dispute that may have arisen, it shall appoint a special Commission of from three to five members.
"When it shall give an opinion upon a question which forms the subject of an existing dispute, it shall do so under the same conditions as if the case had been actually submitted to it for decision."
2
Records of First Assembly, Committees, 1, p. 401. This opinion was expressed at a meeting of a subcommittee held on December 4, 1920, before a decision had been taken as to the way in which the Statute of the Court should be launched.

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