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 20 JURISDICTION UNDER SPECIAL AGREEMENTS AND UNDER TREATIES IN FORCE

§437. Special Agreements.Article 36 of the Statute provides that "the jurisdiction of the Court comprises all cases (Fr., toutes affaires) which the parties refer to it and all matters (Fr., tous les cas) especially provided for in treaties and conventions in force;" Article 40 mentions as the two ways in which cases are brought before the Court (1) the notification of a special agreement (Fr., compromis),1 and (2) a written 2 application (Fr., requête).3Special agreement (compromis) is the term employed to describe an agreement by two or more States to submit to the Court a dispute which has already arisen relating to a defined question or questions. It may or may not be entered into in pursuance of provisions in a previous agreement relating to the jurisdiction of the Court.4 It constitutes an "international engagement," though in practice special agreements have seldom been registered under Article 18 of the Covenant.5Article 40 of the Statute provides that "the subject of the dispute and the contesting parties must be indicated," but no special form seems to be required for a special agreement and the will of the parties may doubtless be expressed informally. The special agreement may be brought into force between the parties upon signature, or its entry into force may be

____________________
1
The compromis mentioned in Article 40 is commonly referred to as compromis d'arbitrage. See, generally, H. Thévenaz, Les compromis d'arbitrage devant la Cour Permanente de Justice Internationale ( 1938).
2
The French version contains no equivalent of the term "written."
3
Conceivably an application might be made in reliance upon a special agreement. While the Chorzów Case, instituted by application, was pending before the Court, the applicant proposed to the respondent that they enter into a special agreement. Series A., No. 9, pp. 7-8; Series C, No. 13-1, pp. 159-70.
4
A special agreement was made by Belgium and Spain in the Borchgrave Case, though these States had a treaty of July 19, 1927 concerning the Court's jurisdiction, though both States were bound by declarations under paragraph 2 of Article 36 of the Statute, and though both States had adhered to the Geneva General Act of 1928.
5
The special agreements were registered with the Secretariat of the League of Nations under Article 18 of the Covenant in the Brazilian Loans Case, 75 League of Nations Treaty Series, p. 91; in the Oder Commission Case, 87 idem, p. 103; and in the Chinn Case, 154 idem, p. 361. An agreement for asking the Council to request an advisory opinion in the Danube Commission Case was also registered, 59 idem, p. 237.

-435-

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