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 23 REPRESENTATIVES OF STATES BEFORE THE COURT

§482. Agents in Contentions Proceedings.Article 42 of the Statute of the Court provides that "the parties shall be represented by agents." 1 Though it is cast in obligatory form, this is to be applied as a procedural provision. As a matter of cooperation with the Court in the discharge of its functions, every State which becomes a party should appoint an agent for the purpose of facilitating communications between the Court and itself. 2 If a State is an applicant, or if it is a party to a special agreement, the Court is in a position to require the appointment of an agent as a condition precedent to the exercise, or to the continued exercise, of its jurisdiction. 3 If a State is a respondent, on the other hand, if in other words it is made a party against its will, it may or may not "appear before the Court" or "defend its case," within the sense of those terms in Article 53 of the Statute; and if it refrains from taking any action, the Court will not be in a position to require the appointment of an agent. The provision in Article 42 is therefore exhortatory, rather than peremptory.4 Each of the parties appointed an agent in every case before the Court, except that in the Belgian-Chinese Treaty Case no agent was appointed by China, and in the Castellorizo Case no agent was appointed by Italy. The agent of a party is always designated with respect to a particular case, i.e., he is an agent ad hoc; yet it is conceivable that a State might designate a general agent to represent it before the Court

____________________
1
Agents charged with the conduct of arbitral proceedings have been regularly appointed since the eighteenth century. Judge Fromageot explained in 1935 that the appointment of agents "had its origin in the early days of arbitration" because it was thought that their interposition would tend "to diminish tension between the parties." Series D, No. 2 (3d add.), p. 235.
2
In an interlocutory judgment of October 19, 1901, in the American-Russian arbitration relating to Whaling and Sealing claims, M. Asser held that even in the absence of a provision authorizing it a party may appoint an agent. 3 Revue de droit international et de législation comparée ( 1901), pp. 655-8.
3
See Series E, No. 14, p. 140.
4
Articles 37 ( 1899) and 62 ( 1907) of the Hague Conventions on Pacific Settlement provided that parties have the right to appoint delegates or special agents. Cf., Series D, No. 2 (3d add.), p. 260.

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