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Spiermann, Ole
2005.
International Legal Argument in the Permanent Court of International Justice.
Article contents
Fundamental Conceptions of International Law in the Jurisprudence of the Permanent Court of International Justice
Published online by Cambridge University Press: 12 April 2017
Extract
Even in the most highly formalized systems of jurisprudence the rules and practices of the law cannot be entirely separated from the fundamental conceptions of law underlying them. The legal systems of France, The Netherlands and Germany have not been formalized to so great an extent that there is neither occasion nor opportunity for the application of the law to be conditioned by concepts derived from juridical theory. Duguit and Geny, Krabbe, and Kohler and Stammler, in their various works, have made this quite clear. In Anglo-American law the fictions so abundantly found are often no more than concrete formulations of abstract fundamental concepts which judges have thought to be valid and consistent with policy and which they could not conveniently introduce into the law in any other way. That fundamental conceptions of the law may affect its development more than their logical consistency warrants has been amply illustrated in the common law, equity, and American constitutional law. What is true of well-developed systems of jurisprudence is no less true of international law. Fundamental conceptions have probably had a greater influence here, since theologic and scholastic philosophies explain many of the rules of modern practice, and the rules of current practice owe their very existence, in large measure, to the reconciliaation of the philosophical concepts of the State, sovereignty and independence with the conception of a community of nations and a rule of law.
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References
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23 Series A/B, No. 63, (dissent), pp. 149–50.
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27 Zones Case, Judgment, 1932, Series A/B, No. 46, p. 184.
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36 July 12, 1929, Series A, No. 20, p. 41. (My italics.)
37 March 3, 1928, Series B, No. 15, p. 17.
38 Series B, No. 6, p. 36.
39 German Interests in Polish Upper Silesia (Merits), Judgment, May 25, 1926, Series A, No, 7, p. 42.
40 Series A/B, No. 63, p. 88.
41 Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University v. The State of Czechoslovakia), Judgment, Dec. 15, 1933, Series A/B, No. 61, p. 221.
42 Series A, No. 17, p. 27.
43 Aug. 20, 1924, Series A, No. 2, pp. 12–13.
44 Series A, No. 20, p. 17.
45 Ibid., p. 62.
46 Mavrommatis Concessions (Jurisdiction), Series A, No. 2, p. 16. Judge Anzilotti observed that this was “a very accurate statement of the principles. . . .” (German Interests in Polish Upper Silesia (Jurisdiction), Judgment, Aug. 25, 1923, Series A, No. 6, p. 30). The same view was reiterated by the Court in the Upper Silesian Minority Schools Case (Judgment, April 26, 1928, Series A, No. 15, p. 22), and in the Choržów Factory (Jurisdiction) Case (Series A, No. 9, p. 32).
47 Status of Eastern Carelia, Advisory Opinion, July 23, 1923, Series B, No. 5, p. 27. Several dissenting judges have enlarged on the Eastern Carelia theme: Judge Pessôa referred to this as “an expression of the respect due to the sovereignty of nations.” (Mavrommatis (Jurisdiction) Case, Series A, No. 2, p. 88); also Judge Moore, in the same case, thought this to be “a well-settled principle of public law.” (Series A, No. 2, p. 74.)
48 German Interests in Polish Upper Silesia, Series A, No. 6, p. 14.
49 Idem.
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51 Ibid., p. 22.
52 Interpretation of Art. 3, par. 2, of the Treaty of Lausanne, Advisory Opinion, Nov. 21, 1925, Series B, No. 12, p. 30.
53 Series A, No. 15, p. 53.
54 Series A, No. 24, p. 43.
55 “The true view should be that the plea to the jurisdiction cannot be considered as submitted too late and that it can be raised at whatever state and at whatever stage of the proceedings.” (Series A, No. 15, p. 68.)
56 Mavrommatis (Jurisdiction) Case, Series A, No. 2, p. 34.
57 Judgment, 1932, Series A/B, No. 46, p. 156.
58 Series A/B, No. 49. Judges Anzilotti (ibid., pp. 349–50) and Rolin-Jaequemyns (Preliminary exception, Judgment, June 24, 1932, Series A/B, No. 47, p. 258), dissenting, felt that it was inconsistent for the Court to answer questions in the form in which they were there presented.
59 Zones Case, Judgment, 1932, Series A/B, No. 46, p. 161.
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78 Nationality Decrees in Tunis and Morocco, Series B, No. 4, p. 24.
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84 Ibid., p. 77.
85 One might expect that the Permanent Court would have placed greater stress than it has upon the capacity for the conduct of foreign affairs independently as a test of sovereignty. This it has not had occasion to do, except by suggestion and inference. Judges Huber (Series B, No. 18, p. 33) and Anzilotti (Series B, No. 18, p. 22) in their separate dissenting opinions in the case of Danzig and the International Labor Organization did, however, emphasize this element.
86 The Lotus, Series A, No. 10, p. 18.
87 Ibid., p. 25.
88 Ibid., p. 20.
89 Lighthouses Case between France and Greece, Judgment, March 17, 1934, Series A/B, No. 62, p. 19.
90 Ibid., p. 24.
91 Series A, No. 1, p. 29: “In any case a neutrality order, issued by an individual State, could not prevail over the provisions of the Treaty of Peace.”
92 Advisory Opinion, July 21, 1930, Series B, No. 17, p. 32.
93 Zones Order, 1930, Series A, No. 24, p. 12.
94 Series A, No. 7, p. 19.
95 Series A/B, No. 63, p. 77.
96 Series A, No. 17, p. 33.
97 Series A, No. 10, p. 24.
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99 Series B, No. 7, p. 26.
100 Series A/B, No. 61, p. 243.
101 Series A/B, No. 49, p. 336.
102 Ibid., p. 300.
103 Ibid., p. 336.
104 Serbian Loans, Series A, No. 20, p. 19.
105 Brazilian Loans, Series A, No. 21, pp. 124—5.
106 Series A, No. 20, p. 46.
107 Series A/B, No. 62, pp. 20–24.
108 Feb. 4, 1932, Series A/B, No. 44, pp. 23–25.
109 Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Advisory Opinion, Dec. 4, 1935, Series A/B, No. 65, p. 50.
110 Judge Anzilotti, his reputation as the “dissenter” of the Court now firmly established, objected to the jurisdictional conclusion. “The fact that the Court’s opinion has been sought on a question which relates to the municipal law of a particular country, apart from any question of international law or of an international dispute, suffices, in my view, to justify the Court in declining to give its opinion.” Ibid,., pp. 62–63.
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