“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.

The International Court of Justice and the World's Three Legal Systems

“…The creation of the Permanent Court of International Justice was surrounded by significant disagreement about the legal principles and rules to be utilized by the newly established court. “In addition to differences governing the laws of naval warfare, there was also believed to be a difference between the ‘Anglo‐Saxon’ (i.e., Anglo‐American) approach to international law and the ‘continental’ (i.e., European) approach to international law” (Lloyd 1985, 35). The crux of the problem was a potential clash between opposing legal orders with judges of divergent legal traditions serving on the Court.…”

“…. By virtue of sitting at the Hague they would be exposed to the pernicious influence of extreme German doctrines” (Lloyd 1985, 35). The winning influence of the continental approach to international law produced many similarities between the Romano‐Germanic legal tradition embodied in civil law systems and the rules and procedures adopted by the PCIJ (and later ICJ).…”

“…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.…”