International Arbitration, from Athens to Locarno

By Jackson H. Ralston | Go to book overview

CHAPTER XXXIII
ADVISORY JURISDICTION OF THE PERMANENT COURT OF INTERNATIONAL JUSTICE

286. National precedents for an advisory jurisdiction. -- Recent years have brought about a development in the administration of justice internationally through courts much resembling the development which has taken place over a much greater period of time in the field of national law. One of the most striking features of this development is the advisory jurisdiction of the Court of International Justice provided for in the first instance by Article 14 of the Versailles Treaty. By the terms of this treaty in its French version the Court will give (donnera) and in the English version "may give an advisory opinion on any dispute or question referred to it by the Council or by the Assembly." While there may exist a difference of opinion as to which text is authoritative, nevertheless in practical operation full effect has been given to the French version and the Court has never questioned its duty to give, when the legal situation permitted, an opinion upon its being asked. The origin of this peculiar jurisdiction may be found in the power entertained by the English Crown of calling upon judges for their opinions. Following the English precedent upon this point, many states of the United States have authorized either the executive or the houses of the legislature jointly or separately to call upon the highest courts of the state for an opinion. This practice found itself first illustrated in the state of Massachusetts, and its example has been followed in New Hampshire, Maine, Rhode Island, Florida, Colorado, Delaware, Mississippi, Oklahoma, Alabama, and South Dakota, as well as, for a time, Missouri. To these jurisdictions may be added those of the Dominion of Canada and several Canadian provinces.

287. Interpretation of the Versailles Treaty. -- Under the language of the Treaty of Versailles any question may be referred by the Council or Assembly to the Court for its opinion. The language is broad, but, broad as it is, has not been interpreted as including any political question in the sense of a question involving policies to be pursued. In this respect, the Court of International Justice has so far in its career resembled the courts of the states enjoying a similar provision. There is no instance of record among the states of the Union of a reference to a court to determine a question as to the policy to be followed. Very often references have related to the matter of the right

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