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

By Melissa S. McHugh
2015, Vol. 7 No. 11 | pg. 1/2 |

When speaking to a lay person, the concept of international justice may conjure a perception of impartiality rising above national interests and biases. This view lends itself naturally to the concept of cosmopolitan law, which David Held characterized as the foundation for upholding the equality and liberty of human beings regardless of their country of origin, enshrining his eight principles of cosmopolitan .1

At the heart of many contemporary international organizations, such as the , the International Court of Justice (ICJ) and the International Criminal Court (ICC), the theory underpinning cosmopolitan law represents the ideal they strive to achieve in a world plagued with war, , and genocide. Before the UN, the ICJ and the ICC, the League of Nations established the Permanent Court of International Justice (PCIJ)—not as a utopian realization of Immanuel Kant’s perpetual peace, but as a tool for European nations to seek rational resolutions to disputes arising from .

The traditional perception of the PCIJ is not as the bastion of cosmopolitan principles, but rather as a safeguard against further bloodshed and conflict in the wake of the Great War. However, the very existence of this organization and the work the Court carried out regarding interpretation and clarification of treaties conformed to some of the most basic pieces of cosmopolitan law theory and constituted an important stepping stone to later international justice organizations that endeavored to attain the type of world philosophers such as Kant and Held visualized.

For the purposes of this paper, I articulate a working definition of cosmopolitan law as based on the works of Immanuel Kant, David Held, and Martha C. Nussbaum before applying this definition to the creation of the PCIJ and two case studies from its two decades of work, and then conclude with an analysis of the legacy of the PCIJ and cosmopolitan law as it exists in contemporary international justice organizations such as the ICJ and ICC.

The core of cosmopolitanism revolves around the idea that humans belong to a larger society than that of their immediate neighborhood — that we have a responsibility to the global community as whole.

Global community

While the philosophy of cosmopolitanism has a variety of aspects and principles articulated in different ways by different writers, the core concept revolves around a perception that humans belong to a larger society than that of their neighborhood, their city, or even their country—that they have a responsibility to the global community as whole. Cosmopolitan law is derived, in part, from this obligation.

Therefore, it is necessary to outline the definition of cosmopolitan law that will be used to analyze the creation and functions of the PCIJ, as well as its legacy in relation to later international justice organizations. The three aspects of this theory used to establish this definition stem from the works of German philosopher Immanuel Kant, British theorist David Held, and American philosopher Martha C. Nussbaum.

Immanuel Kant may be more commonly known for What is the Enlightenment? (1784) and Critique of Practical Reason (1788), but his concepts of cosmopolitanism and cosmopolitan law have had equally lasting legacies. In the same year as his Enlightenment answer, Kant published Idea for a Universal History with a Cosmopolitan Purpose, in which he set forth nine points in order to demonstrate man is inevitably heading towards a more universal existence, in which states would be less important than the overall human experience. Kant discussed the concept of a league of nations, in which even the smallest state could expect the same protection and rights as the largest, the ultimate goal of international organizations like the League of Nations and the United Nations.

Building upon this idea, in 1795, Kant wrote A Perpetual Peace, in which he laid down principles states ought to abide by in order to achieve the desired goal of the title. In addition to abolishing standing armies, ending the subjugation of one state to another (and therefore, colonization), curtailing national debts, and advising against one nation sabotaging another through covert uses of assassins, poisons, and encouraging treason, Kant condemned violations of another nation’s sovereignty while promoting the negotiation of treaties that eradicated any source of resentment or conflict so as to truly be considered peace treaties, rather than merely truces. Kant wrote that treaties which did not attempt to solve all existing issues were “made in bad faith.”2

This is merely a brief introduction to Kant’s cosmopolitan theory, in which the following concepts are extracted: (1) humans, and therefore their states and nations, belong to a larger global community (2) well-developed peace treaties are necessary to lasting peace in that community and (3) violating or encroaching upon another country’s national sovereignty only leads to further conflict. It is these concepts, as well as the elaborations upon them by Held and Nussbaum, that form the backbone of the definition utilized to examine the PCIJ in this paper.

In “Principles of Cosmopolitan Order,” David Held discussed the two major branches of cosmopolitan thought—the first, based on the Stoics, who believed in a global community for which the basis “lies in what is fundamental to all—the equal worth of reason and humanity in every person… [and that] allegiance is owed, first and foremost, to the moral realm of all humanity, not to the contingent of groupings of nation, ethnicity and class.”3 4 He also referred to Kant’s work as part of the larger Enlightenment ideal of cosmopolitanism and the term Weltbürger (world citizen).

His most important contribution, at least in relation to the focus of this essay, is in his eight principles of a cosmopolitan universe, which form the foundation of cosmopolitan law. While all eight are essential, the important ones to fold into the definition being constructed are concerned with building a collective framework in which the individual principles of human dignity, human agency and responsibility can operate on a wider scale—the three principles of consent, collective decision making through majority rule, and the incorporation of those affected by the aforementioned collective decisions being involved in making them.5

The contribution of Martha C. Nussbaum is not nearly extensive as Kant or Held, but her work offers an important caveat to keep in mind. In her 1994 essay, “Patriotism and Cosmopolitanism,” she wrote from the view of an American cautioning citizens about the dangers of patriotic pride, as illustrated by her quotation of The Home and the World by Rabindranath Tagore: “To worship my country as a god is to bring a curse upon it.”6

This curse, according to Nussbaum, is the concept of one nationality, one country, and one set of people, being better than another for no other reason than the location of their birth. In the United States, citizens are inundated with the idea of American exceptionalism, a concept not unique to that country alone, as other so-called First World nations consider themselves superior to other types of civilizations, particularly when discussing Western civilizations in relation to those in the Middle and Far East; the Western view of supremacy is often a hindrance in diplomatic relations with countries in those regions.

How does this fit into the theory of cosmopolitan law? The omnipresent preoccupation with nationality and placing the interests of individuals above the good of the collective global community have created the very obstacles preventing cosmopolitan ideals from taking root on a larger scale. It is the intended purpose of international organizations like the League of Nations and the UN to prevent discords of this nature from leading to widespread wars such as the two world wars seen in the last century alone, though it is not always a practical or realistic purpose.

Before moving on to consider the PCIJ and its legacy, we can limit the definition of cosmopolitan law to the moral obligation of states to set aside individual and national interests in order to pursue a more equal global community through the principles of consent, collective-decision making, and inclusion in order to avoid the types of conflicts perpetuated by views of the supremacy of one over another. The PCIJ embodied Kant’s principles of establishing a “perpetual peace” through its careful interpretations of treaties and , as well its protection of national sovereignty as a way to promote a more universal and broad European community.

Though the concept and use of an international court had deeper roots in the Hague Peace Conferences of 1899 and 1907 with the Permanent Court of Arbitration, it is necessary to limit the focus to the specific founding of the PCIJ, which was established as an arm of the League of Nations, the international organization created as part of the Paris Peace Conference of 1919. Article 14 of the Covenant provided for this international court to resolve disputes brought by member states.7 Comprised of fifteen judges from different countries, each appointed for a term of nine years, the court sourced its judgments and advisory opinions from international conventions, international customs and general principles of law.

Though they never put the concept in practice, the court also reserved the right to judge according to ex aequo et bono8—a concept that fits in firmly in with cosmopolitanism principles, as well as cosmopolitan law. In order to bring a dispute before the court, the member states had to consent to the procedure. Between 1922 and 1946 (at which point the court was disbanded in favor of the ICJ), the court considered sixty-six cases, delivering thirty-two judgments and twenty-seven advisory opinions.

It would be impossible to consider all the cases brought before the PCIJ, so I have selected two specific cases as a representative sample: the 1923 advisory opinion the Court offered to determine whether a dispute between and Great Britain regarding decrees of nationality in Tunis and the French zone of Morocco was an international matter open to the League of Nations to settle or under the exclusive domestic jurisdiction of the French government, and the highly influential “Lotus” case in 1927, which set an essential precedent for international law and jurisdiction on the high seas. These two cases demonstrate the two most important functions of the PCIJ as it related to cosmopolitan law—the clarification of a treaty and principles of international law as well as the protection of national sovereignty in order to protect the peace established in 1919.

In 1921, in the French protectorates of Tunis and Morocco, the French government proffered regulations to determine who in those territories would be considered Tunisian (or Moroccan)—those born there, who established before their twenty-first birthday that one of their own parents were also born there, with the exception of French nationals.9 The British government balked at this decree, wanting the French to state that British subjects in the area would be exempt from this rule, which would become important if they were facing a military draft.

As neither government could come to a settlement between themselves and the French refusing to utilize arbitration as set out in Article 13 of the League of Nations Covenant, the British and the French agreed to allow the PCIJ to determine whether or not the matter was under the jurisdiction of the League. The French stated that because of Paragraph 8 of Article 1510 of the Covenant, they had the exclusive right to legislate the nationality of their subjects, and that it was a not matter for the League or the PCIJ because they retained their sovereignty. Furthermore, dual nationality had never been subject to international law previously.11 The British, in their defense, cited the same article and paragraph 1, which states that

If there should arise between Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council. Any party to the dispute may effect such submission by giving notice of the existence of the dispute to the Secretary General, who will make all necessary arrangements for a full investigation and consideration thereof.12

The court, in their advisory opinion, was careful not to rule on the merits of the matter but merely the jurisdiction. As part of the British argument to exclude their subjects from this decree, they argued that they had, through their own treaties with Tunis and Morocco, gained extraterritoriality status privileges. The French argued that these rights had lapsed in Tunis and had been renounced in Morocco.13 Therefore, it was within the right of the French government and the governments of the protectorate states to legislate nationality within their own borders.

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