The International Court of Justice
| Author | Alexandre Tavadian |
| Pages | 361-422 |
361
Chapter 6
THE INTERNATIONAL COURT OF JUSTICE
The idea of establishing permanent institutions in order to resolve
disputes between governments through peaceful means originated
with Russian Czar Nicholas II. In 1898, the czar had sent twenty-six
countries of the world an invitation to a conference to discuss lim-
itation of armaments and prevention of armed conicts.1 Since the
Netherlands was seen as a neutral country, Nicholas II proposed to
hold the conference at The Hague. All of the states accepted the invi-
tation and approximately 100 delegates gathered in the Netherlands.
The conference opened on 18 May 1899 and lasted a little over two
months. Although the participating countries did not reach an agree-
ment on disarmament, they signed the Convention for Pacic Settle-
ment of International Disputes. The real palpable achievement of the
1899 conference was the establishment of the Permanent Court of
Arbitration (PCA) as the rst universal mechanism for the settlement
of disputes between states. In 1907 — eight years after the rst confer-
ence — the countries convened at The Hague for a second conference,
during which the American delegation proposed a plan for a perma-
nent court of international justice, to be called the Court of Arbitral
1 Robin Sharwood, “Princes and Peacemakers: The Story of the Hague Peace
Conference of 1899” in Timothy LH McCormack, Michael Tilbury & Gillian D
Triggs, eds, A Century of War and Peace: Asia-Pacic Perspectives on the Centen-
ary of the 1899 Hague Peace Conference (The Hague: Kluwer Law International,
2001) at 9.
362 | UNITED NATIONS LAW, POLITICS, AND PRACTICE
Justice.2 This proposal failed because participating countries did not
agree on the method of appointing judges to the court.3 Big countries
wanted to retain the authority to appoint judges proportionate to their
size and inuence. They were not willing to allow the great numer-
ical preponderance of small countries to override them and make up
the court by overwhelming them with their votes.4 Smaller countries
objected on the basis that “the interests of Peace are not promoted by
the creation between states, by means of a contractual stipulation, of
categories of sovereignty which humiliate some to the advantage of
others, undermining the basis of the existence of all, and proclaim-
ing, by a strange paradox, the predominance in law of might over
right.”5 Consequently, the participating states limited themselves to
revising the Convention for Pacic Settlement of International Dis-
putes signed in 1899.
The name Permanent Court of Arbitration is confusing and
unfortunate because the PCA is neither permanent nor a court in
the strict sense of the word. It only provides services to arbitration
tribunals once they are set up by the parties. The PCA assists the
arbitration tribunal with legal research, translation, and other admin-
istrative tasks. For all means and purposes, the PCA plays the role of a
registrar. In addition, the PCA is not permanent because there are no
judges or arbitrators who are always in session permanently, hearing
cases or deliberating. Arbitration tribunals are formed by the parties
on an ad hoc basis only after a dispute arises between them. The par-
ties may agree on the identity of the arbitrator. Some PCA arbitrators
may never get an opportunity to preside in a case.
The PCA has an exclusively voluntary jurisdiction. Countries
must agree to bring a dispute before the court. However, this was
not why states were reluctant to submit their disputes to the PCA.
2 James Brown Scott, “The Proposed Court of Arbitral Justice” (1908) 2:4 Am J
Int’l L 772 at 778.
3 Ibid at 802.
4 Elihu Root, “Permanent Court of International Justice” (1921) 9 Ky LJ 106 at
109−10.
5 Antonio S de Bustamente y Sirven, “Permanent Court of International Justice”
(1924) 9 Minn L Rev 122 at 125.
Chapter 6: The International Court of Justice | 363
According to Elihu Root,6 governments did not have much condence
in the PCA:
[O]ne diculty about arbitration is that arbitrators too often are apt
to treat the cases brought before them as a matter for settlement,
for adjustment. They have come to consider, apparently, that their
function is to do with the case what seems to them to be the wisest
and most expedient thing for all parties and all interests concerned.
They tend to act under a sense of judicial obligation. T he great
diculty about arbitration has really been not that nations were
unwilling to submit questions of law, questions of right, the kind
of questions that our courts pass upon as between individuals in
municipal law, to impartial judgment, but that they had not much
condence in getting impartial judgment because they found that
the arbitrators, when they got together, went into negotiation as dip-
lomats, and no one could tell what would come out of it. The party
having no matter how strong a case, no matter how absolutely right
upon the question of legal right, might nd itself defeated because
it seemed to the arbitrators on the whole that it perhaps would be
better that it should not have its legal rights, but that the case should
be settled as conveniently as possible.7
While the PCA had a few success stories, it did not prevent a
global armed conict. The outbreak of World War I in 1914 served to
increase the need for an international court with more authority than
the PCA. Therefore, when World War I ended and nations gathered
for the Paris Peace Conference in January 1919, vague proposals to
set up an international court were presented by some nations, includ-
ing Italy. It would take the international community three full years
to set up a new tribunal called the Permanent Court of International
Justice (PCIJ) under the auspices of the League of Nations. The
Court began operating on 15 February 1922. Its seat was the Peace
6 Elihu Root was an American lawyer who held senior positions under dierent
presidents. He served as the Secretary of State under President Theodore Roos-
evelt and was personally involved in the negotiations that led to the creation of
the Permanent Court of International Justice.
7 Root, above note 4 at 108−9.
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