No full-text available
To read the full-text of this research,
you can request a copy directly from the author.
"A Springboard for the Future": A Historical Examination of Britain's Role in Shaping the Optional Clause of the Permanent Court of International Justice
Abstract
The Permanent Court of International Justice (PCIJ) was established in 1922. Article 36, paragraph 2 of its Statute reads:
The Members of the League of Nations and the States mentioned in the Annex to the Covenant may, either when signing or ratifying the protocol to which the present Statute is adjoined, or at a later moment, declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other Member or State accepting the same obligation, the jurisdiction of the Court in all or any of the classes of legal disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an international obligation;
(d) the nature and extent of the reparation to be made for the breach of an international obligation.
... Februar 1922 an) in Kraft trat. 6 Im Unterschied zu den bereits vorliegenden umfassenden Studien (Spiermann 2002(Spiermann , 1996Lloyd 1985;Dunne 1988) habe ich im vorliegenden Beitrag die Absicht, diese historische Episode aus der Perspektive einer historischen Soziologie der Experten und der Expertise zu untersuchen. Im Einklang mit dem oben skizzierten instrumentellen Verständnis historischer Forschung als Werkzeug soziologischer Untersuchungen habe ich mich im Wesentlichen auf die Debatten und Meinungsverschiedenheiten über die Definition des internationalen richterlichen Amtes konzentriert, mit einem besonderen Interesse an sozialen und professionellen Voraussetzungen und Unvereinbarkeiten. ...
The article argues that transnational expert fields have a specific social and professional pattern (defined as constitutive of a “weak field”), one this is critical when it comes to understand the definitional power experts and expertise can have at the international level. Getting back to the League of Nations as the inaugural scene for the shaping of the power-knowledge nexus, the paper explores the drafting of the first World Court in 1920 as one critical formative moment of transnational expert fields. While the drafters agreed upon the creation of the first permanent court of law, they renounced to define who the permanent professionals of that law would have to be, therefore depriving the field of international law of any strong supranational unit of governance. The paper argues that this initial decoupling between the autonomy (of the court) and the heteronomy (of the judge) has shaped the enduring “weakness” of transnational expert fields.
... Power constitutes one of the most frequently mentioned factors that influence whether states bring their disputes to the ICJ (Lloyd 1985). Powerful states prefer to bargain bilaterally because their material advantages translate into bargaining leverage. ...
This paper seeks to understand why some countries accept the jurisdiction of the International Court of Justice (ICJ) more readily than others. The theory focuses on institutional differences between the world's major legal systems: civil law, common law, and Islamic law. Important characteristics of these legal systems (stare decisis, bona fides, pacta sunt servanda) are integrated in an expressive theory of adjudication, which focuses on how adjudication enhances interstate cooperation by correlating strategies, constructing focal points, and signaling information. The theory considers the ability of states to communicate with each other, using acceptance of ICJ jurisdiction as a form of cheap talk. Empirical analyses show (1) civil law states are more likely to accept the jurisdiction of the ICJ than common law or Islamic law states, (2) common law states place the greatest number of restrictions on their ICJ commitments, and (3) Islamic law states have the most durable commitments.
The UK proudly describes its longstanding commitment to the International Court of Justice as a sign of its broader commitment to international adjudication and, in turn, the international rule of law. This article calls into question this narrative suggesting that, despite official pledges and rhetoric to the contrary, the UK cannot be said to have truly accepted the authority of the Court to scrutinize its conduct, nor to have consistently acted in a manner that is respectful of that institution. To the extent that the UK wishes to present itself as a genuine supporter of the international rule of law, this article posits that it should reformulate its approach to the Court with regard to both its contentious and advisory jurisdictions.
Nicaragua’s practice under the Optional Clause of the ICJ Statute has coincided with rising numbers of declarations in force and applications instituting proceedings on that basis. The combined creativity of Nicaragua and the Court has propelled those trends by refining the international legal community’s understanding of this conceptually challenging provision of the Statute. In particular, Nicaragua v. United States has influenced the complexity of reservations and conditions in States’ declarations, as well as parties’ argumentative tactics in subsequent disputes. The present chapter reviews the Court’s treatment in that case of the history and features of Article 36(2) of its Statute, assesses the theoretical, jurisprudential, and diplomatic consequences of those decisions, and investigates questions which Nicaragua has posed but not resolved during three decades of Optional Clause practice. The author concludes that the Nicaraguan cases have invigorated this jurisdictional mechanism—and thus the maintenance of international peace and security—beyond what might reasonably be expected from a more rigid system of compulsory dispute settlement.
This article makes the case for greater attention to be given to the role of national legal culture in the making and practice of international law. The merits of this contested notion as a tool for gaining new insights are discussed, as is the legal cultural approach embedded in the broader field of study known as “comparative international law”. In an effort to demonstrate the utility of engaging with this concept, the focus turns to the inner legal culture of international law, which is composed of lawyers, judges and other professionals. It is argued that there are two factors of influence which allow for domestic elements to seep into international law. The first relates to individuals, via the inculcation of parochial values, whereas the second takes on a structural dimension, through inter alia the general principles of law and the “equitable geographical representation” requirement found in the statutes of many intergovernmental bodies. This theoretical framework is subsequently applied to the International Court of Justice, a suitable case study on account of it being a meeting place of various juridical traditions. At the individual level, judges and counsel appearing before the ICJ are considered. As regards the structural level, certain institutional features conducive to domestic influences are highlighted. Finally, the article identifies and briefly discusses three themes in the jurisprudence of the ICJ where national legal cultures have left their mark: analogies to municipal law, the manner and style in which the outcome of cases are justified and the debates surrounding the standard of proof.
Do domestic legal systems affect states' propensity to form military alliances? This article building upon the existing research in international relations, adopts a socio-legal approach to understanding international treaty making. By focusing on the essence of international negotiations – communication between states' representatives, I argue that negotiating parties who share a common legal language have a common a priori understanding concerning concepts under discussion. Domestic laws operating within states impact the process of creation of international law embodied in treaties. Empirical analyses show that states with similar legal systems are more likely to form military alliances with one another. Additionally, domestic legal systems influence the way that states design their alliance commitments. In general, my findings suggest that the influence of domestic laws does not stop at "the water's edge." It permeates the interstate borders and impacts the relations between states, especially the treaty negotiating and drafting process. International negotiators bring their legal backgrounds to the negotiating table, which influences both their willingness to sign treaties and the design of the resulting agreements.
When, on 16 October 1925, the leading European statesmen initialled the famous Locarno agreements, a new era of international tranquillity and peace appeared to have dawned. The British Foreign Secretary, Austen Chamberlain, carried away by euphoria, wrote of ‘feeling like a little child again in spirit’ and of having ‘lived such days and celebrated such a birthday as it is given to no man to experience twice’. In reality, however, the agreements were built on inadequate foundations. As Viscount Cecil of Chelwood foresaw, limited regional security guarantees were an unsatisfactory substitute for the Draft Treaty of Mutual Assistance (1923) and the Geneva Protocol (1924), whose rejection by successive British Governments had spelt the end of hopes that wider collective security provisions and measures of disarmament might be achieved simultaneously. The Locarno agreements were only finally torn up in March 1936 when Adolf Hitler remilitarized the Rhineland; but the spirit which underlay them began to evaporate from the day of their signature. In this essay attention is given only to the first post-Locarno crisis, which was in itself sufficient to disillusion many optimists and to reveal that Franco-German tension was still a potent force in European relations. This crisis arose out of Germany's decision, in part fulfilment of her obligations under the agreements, to apply for membership of the League of Nations.
The Permanent Court of International Justice
- Fachiri
Documents on the League of Nations 256, 283 (1920)
- Kluyver