President Huber

At the end of its fifth session, the Permanent Court had to elect a new president. President Loder's rival candidate was Judge Moore, who in a letter to Judge Huber had taken the view that ‘[e]xisting conditions would not be improved by an embittered but unsuccessful effort to make a change in the presidency, which, as you know, Mr Loder strongly desires to retain; and under no circumstances would I consent to the use of my name for a mere demonstration of dissatisfaction’. What Judge Moore had wanted was ‘a substantial majority of my colleagues’. However, repeated voting produced nothing but a series of ties and eventually Judge Moore withdrew his candidacy. A majority of six now favoured the member of the bench who perhaps had exercised the greatest influence on the Permanent Court's work in its foundational period: Judge Huber.

This election was more than a transfer of a title. In 1922, at the Permanent Court's inauguration ceremony, President Loder had said that international law had taken the first step beyond ‘the law of force and of selfishness’. This phrase emphasised the vital role which President Loder and other traditionalists attributed to the project of international justice. It also implied that President Loder considered the conception of the state as a national sovereign, and the national sovereign's interests and ‘selfishness’, that is, the national principle of self-containedness, as the premise from which substantive international law had to develop.

Note: This appendix lists all decisions published in Series A and B between 1922 and 1930 and in Series A/B between 1931 and 1940, that is, all advisory opinions and judgments of the Permanent Court and also a small number of orders. It gives the official name of the decision; its number in the General List and the date of registration; the references to official publications regarding the decision (i.e., Series A, Series B or Series A/B, and the publication of related acts and documents in Series C); the decision's kind, its date, the final vote (if available in the official publications) and the authentic language of the decision; and the participating judges, deputy-judges and judges ad hoc (the names of judges and deputy-judges not sitting on the case are struck out; the names of dissenting judges are underlined; the names of judges appending a declaration or a separate opinion are put in italics). The folios of the General List in respect of all cases submitted to the Permanent Court are reproduced in Series E No. 16 (1939–45) at 92–147. Chronological indexes of orders of the Permanent Court are contained in Series E No. 11 (1934–5) at 95–100; Series E No. 12 (1935–6) at 149–50; Series E No. 13 (1936–7) at 108–9; Series E No. 14 (1937–8) at 99; Series E No. 15 (1938–9) at 83; and Series E No. 16 (1939–45) at 88.

From arbitration to adjudication

As the predecessor of the present International Court of Justice, the Permanent Court of International Justice was a historic ‘melting-pot’ of ideals about international justice and, according to some, international community as well as notions of international law. It was the culmination so far of a persistent movement towards, in prosaic terms, more effective settlement of international disputes. The twentieth century had opened with a call for international justice, a growing hope of sustaining peace through international adjudication and law. Although cold water was inevitably poured on the belief in international adjudication being a real, trustworthy alternative to warfare, the century witnessed several successful projects of international justice, with more now underway. This was partly due to the legacy of the Permanent Court where international law was brought down to earth, as it were, and given a practical edge. In this context, the world, at last, experienced the rise of the international judiciary.

The Permanent Court of International Justice was preceded by the Permanent Court of Arbitration established under the 1899 and 1907 Conventions for the Pacific Settlement of International Disputes, which have been described as ‘in a sense a codification of the law of pacific settlement up to that time’. In Articles 15 (1899) and 37 (1907), ‘international arbitration’ was defined as having ‘for its object the settlement of disputes between States by judges of their own choice on the basis of respect for law’.

International law as a complementary legal system

As an institution, or a project of international justice, the Permanent Court was a success, being the framework within which the world first experienced the development of an international judiciary. What remains so attractive about the Permanent Court is simply that it was a pioneering institution. During the negotiations of the Charter of the United Nations, there was little doubt that an International Court should be part of the institutional arrangement, and that it would be closely modelled on the Permanent Court. Despite the significant political changes in the world since 1945, many of which have been given legal form, there has been no decline in the international judiciary, and no change in the basic framework laid down after 1921 for the Permanent Court. At the turn of the twenty-first century, there were several active international courts in existence in addition to the principal judicial organ of the United Nations.

Many of the decisions of the Permanent Court concerned the interpretation of treaties that are now obsolete; most of them had emerged out of the conclusion of the First World War and most did not survive yet another upheaval of the world. More than sixty years later, there are often more recent and less eccentric precedents to cite. While many fields of international law are informed with quotations from various decisions of the Permanent Court, the exotic names of which are commonplace, the use of such quotations often has no relation to the original context and may indeed only be lingering on as echoes from a distant past.

Approach and material

In studying international legal argument as unfolding in the decisions of an international court, the question is what to do if one's analysis of the decisions is not to be only superficially about that court. The shifting divisions between the judges, the emergence and decline of what Lauterpacht termed ‘trends and principles’, the varying influence of specific judges over time and the numerous implicit overrulings of former decisions are all interrelated aspects that warrant a chronological analysis of the decisions of the same international court. Of course, no description takes the form of a one-way process of cognition, yet that ought not to prevent lawyers from analysing the decisions of international courts. A model of international legal argument concerned with the practical use of international law in specific cases, as distinct from the Buchrecht, is essential. Account must be taken of the written and oral pleadings of the parties appearing before the international court, yet the focus is on the decisions of, and therefore international legal argument within, the Permanent Court.

On one occasion, having regard to the increasing interest among scholars in commenting on the decisions of the Permanent Court, President Huber suggested to his colleagues that ‘the work in preparing our decisions must be such that if our critics – whether learned men or politicians – could be admitted to the private sittings of the Court, they would remain with the impression that the evolution of our judgments is really worthy of the Court’.

The Permanent Court as composed after the second general election

President Adatci and other new judges

The second general election of judges took place on 25 September 1930. Those re-elected were Judges Altamira (sixty-four years old), Anzilotti (sixty-one years old) and de Bustamante (sixty-five years old), who had been ordinary members of the Permanent Court since 1922; Judges Negulesco (fifty-five years old) and Wang (forty-nine years old), who had also been members of the Permanent Court since 1922, though in the first nine years as deputy-judges; and Judges Hurst (sixty years old), Fromageot (sixty-six years old) and Kellogg (seventy-four years old) (ages stated as at the end of 1930).

Only Judges Negulesco and Wang were younger than Judge Huber; Judge Huber, however, had eventually declined to stand for re-election. Huber's influence had diminished during Judge Anzilotti's presidency, partly because he had taken up the presidency of the International Committee of the Red Cross. Yet his departure was a serious blow to an international lawyer's approach to international legal argument, one which combined the international law of coexistence with the dynamic structure of international legal argument, having the conception of the state as an international sovereign as its starting-point. The main exponent of this approach remaining on the bench was Judge Anzilotti, since Deputy-Judge Beichmann did not secure re-election. Indeed, no Scandinavian candidate succeeded. Åke Hammarskjöld lost the last seat on the bench by a whisker to a South American, Francisco José Urrutia (Colombia).

The Permanent Court as composed after the first general election

The judges

As the Court Protocol had entered into force at the time of the opening of the Second Assembly in September 1921, the first general election of judges took place on 14 September 1921. The judges were to be elected under Article 2 of the Statute ‘amongst persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law’. According to Article 9, ‘the whole body … should represent the main forms of civilization and the principal legal systems of the world’. In the Assembly, just before the election, Minéitcirô Adatci had said that this ‘extremely important article … emphasises the universal character of the institution, for as the various States accept the clause enjoining mutual obligation, the Court of International Justice will become a complete world organisation’. The successful candidates were rather diverse in terms of their experience and had a range of ages.

A number of judges had made significant contributions to international legal theory. Max Huber (forty-seven years old in 1921) was a Swiss professor in international law from Zurich, who had spent the war as legal adviser to the Swiss Federal Council. Huber's doctoral thesis from 1898 on state succession had been much referred to, and in 1910 he had published a mature piece on the foundation, past and possible future of international law: Beiträge zur Kenntnis der soziologischen Grundlagen des Völkerrechts und der Staatengesellschaft.