What was the Influence of Cosmopolitan Law on the Permanent Court of International Justice?

By Melissa S. McHugh
2015, Vol. 7 No. 11 | pg. 2/2 |

The PCIJ disagreed, declaring could not independently discount the treaties Britain had signed with Tunis and Morocco at the same time retaining domestic jurisdiction. According to the judges, the powers of the protector within the protectorate depended on two relationships: the protector/protectorate and the protectorate/third party nations. While the matter of nationality “is not, in principle, regulated by , the right of a State to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other States.”14 Because the dispute could not be settled without considering international treaties, the matter was, therefore, subject to Article 13 or Article 15, Paragraph 1 of the Covenant.

How can this particular case be used to demonstrate the PCIJ’s adherence to cosmopolitan law? National sovereignty, at least on the part of the French, was not upheld; there did not appear to be a danger in open hostilities; and the concept of a protectorate nation seems to directly contradict Kant’s principle against one nation being subjugated to another. In fact, at first glance, the PCIJ’s ruling seems to prove the absence of cosmopolitan law. Though Kant promoted the sovereignty of nations, he did so with an eye towards preventing one nation from unnecessarily interfering with the governing of another, as such a situation could not preserve peace.15

By allowing the League of Nations and the PCIJ to settle whether France’s claim of sovereignty was just under the agreements the government had signed with the League, France was setting aside its own individual interest in order to pursue a solution that would benefit the global community, and they did so through consent and collective-decision making. Had France refused and then called a military draft, forcing British subjects to fight for them, the situation may have very well have broken into open hostilities. Instead, the PCIJ ruled that it was matter for international consideration, and the two governments were able to come to an agreement, in which those British subjects could repudiate the nationality conferred upon them.16

The second case to be considered also dealt with matters of national sovereignty and adherence to international agreements signed by nations. On 2 August 1926, off the Cape of Sigri near Constantinople, the French steamer, the Lotus, collided with a Turkish vessel, the Boz-Kourt. The Turkish ship sunk, leading to a loss of eight lives, while the Lotus made it to port. Turkish officials investigated immediately, and within days, both the captain of the Boz-Kourt and the officer on watch on the Lotus, Monsieur Demons, were arrested and charged with involuntary manslaughter.

Turkey claimed jurisdiction as the offense (the loss of life) happened on a ship flying the Turkish flag, therefore it was in their territory. The French disputed this, as the incident happened on the high seas, stating the Turkish were violating the Article 15 of Convention of Lausanne, signed in 1923 between Turkey and, among other nations, France. The French republic wanted the PCIJ to rule Turkey had violated international law proceeding against M. Demons and to award damages to that effect. 17

The judgment issued by the PCIJ was in favor of Turkey, but it was not, by any means, a decision easily reached. Five judges outright dissented, and a sixth, Judge Bassett Moore (United States), dissented in part, finding error in the way that the PCIJ had interpreted the special compromise Turkey and France signed in order for the matter to be brought before them, as Turkey was not a member state of the League of Nations. He disputed eliminating the Turkish Penal Code, Article 6, from discussion and wrote his dissent to that effect; however he agreed with the question the PCIJ did answer, so his vote was counted as in favor.

The majority opinion found “no such rule of international law exists” prohibiting Turkey from moving forward with the proceedings, 18 and therefore, they had not violated the Convention of Lausanne. The dissenting judges found this principle to be particularly troubling. Judge Bernard Loder (Netherlands) wrote Turkey was claiming “under international law, every door is open unless it is closed by treaty or by established custom.”19 He found fault with that, as international law is generally unwritten, codified through consensus and treaties, so allowing Turkey jurisdiction because nothing specifically prohibited them did not adhere to the spirit of international law.

Judge Charles Andre Weiss (France) agreed with this, finding that the Article 15 stated that in all cases of jurisdiction, Turkey must abide by principles of international law.20 By allowing Turkey to go ahead with this proceeding, Weiss concluded that the Turkey had violated the sovereignty of the French, and therefore, violated international law: “If States were not sovereign, no international law would be possible, since the purpose of this law precisely is to harmonize and reconcile the different sovereignties over which it exercises its sway.”21

Despite the dissents, the PCIJ established the standard that a state may pursue any proceeding as long as they do not violate specific laws, also known as the Lotus Principle,22 though its application has become more complex over time. Eventually, the UN established the High Seas Convention in 1958, which set down relevant law as to the merits of the Lotus case: jurisdiction for a collision on the high seas belongs to the state for which the accused is a national, effectively reversing the decision made in this case.23

As with the Nationality Decree opinion, a superficial consideration of the Lotus case leaves the impression that national sovereignty was, again, violated, and that the Convention of Lausanne was not honored. However, the application of cosmopolitan law lies, again, in the initial agreement to take the case before the PCIJ. Turkey was not a member state of the League, and therefore not subject to any agreement that would compel it to cede jurisdiction of the matter. They agreed to allow an international court settle the dispute through a protocol signed in October 1926 at Geneva.24

Though the Court was by no means unanimous in the application of international law and interpretation of the Convention of Lausanne, the variety of dissents demonstrated that concerns of national sovereignty and observance to the spirit of treaties signed between nations were crucial to the continuation of peace in the European community. Turkey, like France had in the Nationality decrees, set aside individual interests in order to achieve a broader European agreement to avoid escalating the matter.

Though the PCIJ lasted only from 1922 to 1946, its legacy continues today in other international justice organizations, of which only three subsequent ones are briefly examined here: the International Military Tribunals (IMT) in Nuremberg, the ICJ, and ICC, as they can be construed as direct descendants of the PCIJ. The PCIJ was disbanded in 1946, as was the League of Nations, and supplanted by the UN and the ICJ. The IMT constituted the Allied prosecution of members of the Axis Powers after , in Nuremberg and later in Tokyo, while the ICC is a more recent creation, beginning in 2002, and independent from the UN.

After the horrors of World War II, the desire to hold those responsible accountable, either through a trial or summary execution was high. A trial on the scale of the Nuremberg case was unprecedented, as were the charges at stake. The indictment held that Germany had violated the Geneva Protocol of 1924 and Kellogg-Briand Act of 1928, which prohibited waging an aggressive war, making it a violation of international law. 25

The IMT was making it clear to the international community, and to individual states, that violating a treaty to which they were a signatory party, would not be taken lightly, and in the case of the nineteen German defendants, lives may be at stake. The sanctity of treaties and the principles of international law they set down ensured a continuation of peace in a global community. The ICJ is a continuation of the type of work carried out by the PCIJ, while the ICC enshrined the principle of placing human dignity above national interests, particularly in cases of genocide, so their adherence to cosmopolitan law is self-evident.

Due to the horrors of World War II, the League of Nations has been perceived by many as a failure, and the contributions of the PCIJ remain relatively unknown except to students of international law. However, the and the work of later international justice organizations merely built upon the foundation the League and the PCIJ built in the quest to preserve peace and foster a sense of community in which the good of many outweigh the needs of the few.

Cosmopolitan law, as defined here, does not ignore the obstacles in establishing a world based on cosmopolitan . Rather, it can be seen as attempting to eliminate those obstacles through the use of international law to regulate the relationships between individual states. When states look first to the law to resolve their disputes rather than military options, Kant’s perpetual peace is within reach. It is hard to imagine a world where this particular principle exists, but that’s the hope of international justice organizations like the PCIJ, the ICJ, and ICC—and the impracticality of the ideal does not render it any less desirable.

Two major limitations exist in carrying out extensive research into the PCIJ and its legacy—secondary literature post World War II is almost non-existent on the subject and many of the earlier documents do not have English translations—as well as translations into languages other than French or English. However, all the court proceedings are available online, so this should not remain an obstacle in the future. International law and justice are still evolving concepts, and their relationship to cosmopolitanism and cosmopolitan laws changes all the time. While the world has not yet achieved the cosmopolitan universe or perpetual peace David Held or Immanuel Kant envisioned, due to the League of Nations, the PCIJ, and the organizations that came after them, the global community is a bit closer today than they were a century ago to embodying the principles of both.


References

Bantekas, Ilias, and Efthymios Papastavridis. 2013. International Law Concentrate. Oxford: Oxford University Press.

Brock, Gillian, and Harry Brighthouse, . 2005. The of Cosmopolitanism. Cambridge: Cambridge University Press.

Kant, Immanuel. n.d. "Perpetual Peace: A Philosophical Sketch." https://www.mtholyoke.edu/acad/intrel/kant/kant1.htm.

Latey, William. 1923. "The Anglo-French Tunis Dispute." Transactions of the Grotius Soceity, 49-60.

Loder, Bernard. n.d. "Dissent from Lotus Case." Permanent Court of Intenational Justice. http://www.icj-cij.org/pcij/serie_A/A_10/31_Lotus_Opinion_Loder.pdf.

n.d. "Lotus Judgment." Permanent Court of International Justice. http://www.icj-cij.org/pcij/serie_A/A_10/30_Lotus_Arret.pdf.

Mettraux, Guénaël, ed. 2008. Perspectives on the Nuremberg Trial. Oxford: Oxford University Press.

Network, Center for International Earth Science Information. n.d. "High Seas Convention, 1958." http://sedac.ciesin.org/entri/texts/high.seas.1958.html.

Nussbaum, Martha C. 1994. "Patriotism and Cosmopolitanism." Boston Review. http://www.bostonreview.net/martha-nussbaum-patriotism-and-cosmopolitanism.

PCIJ. n.d. "Nationality Decrees Issued in Tunis and Morocco." The Permanent court of International Justice. http://www.icj-cij.org/pcij/serie_B/B_04/Decrets_de_nationalite_promulgues_en_Tunisie_et_au_Maroc_Avis_consultatif_1.pdf.

n.d. "The Covenant of the League of Nations." Avalon Project. http://avalon.law.yale.edu/20th_century/leagcov.asp.

2012. The Permanent Court of International Justice. The Hague: Registry of the International Court of Justice.

Weiss, Charles Andre. n.d. "Dissent from Lotus Case." Permanent Court of International Justice. http://www.icj-cij.org/pcij/serie_A/A_10/32_Lotus_Opinion_Weiss.pdf.


Endnotes

  1. David Held, “Principles of Cosmopolitan Order” in The Political Philosophy of Cosmopolitanism, edit. Gillian Brock & Harry Bright House (Cambridge: Cambridge University Press, 2005), 26.
  2. Immanuel Kant, A Perpetual Peace (https://www.mtholyoke.edu/acad/intrel/kant/kant1.html)
  3. Held, 10.
  4. Held cites Martha C. Nussbaum in this section, referring to her 1997 work, Cultivating humanity: a classical defense of reform in liberal education.
  5. Held, 13-14.
  6. Martha C. Nussbaum, “ Patriotism & Cosmopolitanism” in Boston Review (http://www.bostonreview.net/martha-nussbaum-patriotism-and-cosmopolitanism).
  7. “League Covenant,” The Avalon Project (http://avalon.law.yale.edu/20th_century/leagcov.asp)
  8. The Permanent Court of International Justice (The Hague: 2012).
  9. William Latey, “The Anglo-French Tunis Dispute” in Transactions of the Grotius Society (1923), 49.
  10. Article 15, League of Nations Covenant.
  11. Nationality Decree, 12.
  12. Article 15, League of Nations Covenant.
  13. Decree, 29.
  14. Ibid., 24.
  15. Kant, PP.
  16. Weiss, 75.
  17. Lotus, 5.
  18. Lotus, 23.
  19. Loder, 35.
  20. Weiss, 41.
  21. Ibid., 44.
  22. Ilias Bantekas and Efthymios Papstavridis, International Law Concentrate (Oxford: Oxford University Press, 2013), 5
  23. High Seas Convention, 1958.
  24. Lotus, 12.
  25. Sheldon Glueck, “The Nuernberg Trial and Aggressive War,” in Perspectives on the Nuremberg Trial, ed. Mettraux, Guénaël, (Oxford: Oxford University Press, 2008), 82.

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