Vol. 15 No.6 (June 2005), pp.590-593

INTERNATIONAL LEGAL ARGUMENT IN THE PERMANENT COURT OF INTERNATIONAL JUSTICE: THE RISE OF INTERNATIONAL JUSTICE, by Ole Spiermann.  Cambridge: Cambridge University Press, 2005. 538pp. Hardback. $120.00/£70.00. ISBN 0-521-83685-9.

Reviewed by Donald W. Jackson, Texas Christian University. Email: d.w.jackson@tcu.edu .

Ole Spiermann’s book on the Permanent Court of International Justice (1923-46) is a revised version of his thesis submitted for a Ph.D. at Cambridge University in 1999.  It mostly reads as one might expect of a book with that origin.  It is a detailed analysis of archival decisional materials from the Permanent Court, which was the precursor to the International Court of Justice, both located at The Hague.  The Permanent Court was approved by the Assembly of the League of Nations in1920, and its decisions were binding on the nation states that signed and ratified the Protocol of December, 1920.   Unfortunately, no major international problems were submitted to or decided by the court (von Glahn 1992).  Thus, this book is likely to be more useful to legal scholars of doctrinal international public law than to political scientists who work within the field of comparative judicial politics, but there are a few insights that may be of more general interest.

A paradox is noted in the first page of the Foreword: while the accumulation of precedents these days represents a rapidly developing jurisprudence of both private and public international law, there is “a pervasive sense that the whole ‘system’ is insecure, uncertain in its constitutional underpinnings, erratic in the political support for it and largely unrelated to key issues facing the world at this time” (p.xiii).   A reasonable observer—even one from the United States (who is relative free of an ideological screen)—might suggest that this insecurity and tentativeness is largely a function of the hostility of the current U.S. administration toward any constraints flowing from international law that might impede or limit the pursuit of perceived U.S. national interests.   Many other nations are on a different path—one that leads to an increasingly significant ambit, especially for public international law.

At its founding, the Permanent Court of International Justice was at the cutting edge of institutionally-based international law.  So was its successor, the International Court of Justice, founded in 1946.  Spiermann argues that 1966 was an especially important year in the history of the International Court of Justice, noted especially for the dissenting opinion of Judge Tanaka in the 1966 SOUTH WEST AFRICA case (seen by some as the beginning of a “highly functional, problem-solving approach), but Spiermann argues that this approach to judicial decision making in 1966 was also present in the Permanent Court in the 1920s, though perhaps not in the 1930s (pp.18-30). [*591]

The overarching conceptualization in this book involves the relationship between national and international law.  While a nation-state may be sovereign within the context of national law, the state is not necessarily preemptively sovereign in the context of international law.  Thus:

True, it is the conception of the state as a sovereign defined in relation to national law; it defines the sources and subjects of national law as well as the relationships governed by national law.   But then in order to come round to, and conceive of, international law, one has to be a national lawyer – that is, a lawyer concerned with one or other national legal system – or at least to be familiar with national lawyers’ ways of reasoning.   International law is the response to a need felt by national lawyers, for law that separates and complements the several national legal systems.  It is because of its bearing on the conception of the state as a national sovereign that international law, though ‘international,’ is ‘law’ (and as such is binding) and the reason why it is offered as part of university course in national law. . . .

That the rationale behind international law is to complement national law explains the duality of coordination and separation, which characterizes the relationship between national and international law.  The two legal systems are coordinated in the sense that international law governs issues for which national law is unsuited (pp.45-47).

Spiermann thus adopts a traditional dichotomy of an “international law of coexistence, which involves “interstate rules of mutual respect for state sovereignty and abstention from interference in such sovereignty” and a newer positive international law of cooperation” (p.48).   The international law of cooperation involves efforts to control destructive competition, which can mean either war or the ruinous exploitation of the earth’s resources (Friedmann 1964).  The international law of coexistence defines relationships between states, while the international law of cooperation transcends nation states and involves contracts and relationships that are truly international in form.  For example, while the European Convention of Human Rights and Fundamental Freedoms (1950) began as a treaty between and among contracting states, it created a larger order that transcends the nation state and creates obligations that benefit from transnational or supranational enforcement.

In the same manner, Article 38 of the Statute of the Permanent Court of International Justice empowered that court to apply international conventions, international customs as evidenced by general practices that are accepted as law, and the “general principles of law recognized by civilized nations” (p. 58).

To sum up, Spiermann proposes that a nation state be viewed as a national sovereign (and under some circumstances as an international sovereign entity, but also as a subject under international law.   This conceptualization seems to take a firm stance on the side of transnational or international enforcement of general practices and procedures recognized by civilized nations.  On the other side are the advocates of a position sometimes approaching moral absolutism favoring nation state sovereignty, but there also we find a paradox.   Those strongly [*592] asserting the sovereign rights of the United States seem quite willing to intrude upon the sovereignty of other nations.   Cynics might argue that we have highly protective sovereignty for rich and powerful states, while weaker nations are seen as being subject to the demands of the rich and powerful (international law?).  Yet, although that may describe certain aspects of current U.S. policy, other relatively rich and powerful nation states (most of our traditional European allies) seem more willing to accept that they also are subjects under international law and ought to be held accountable for their transgressions.

In any event, Spiermann identifies the tension that has long characterized the relationship between national and international law and applies his conceptualization to the positions that were taken in the decisions of the Permanent Court of International Justice during its tenure.   Part 3 accomplishes that purpose, and it contains the longer part of his book.   Chapter 5 examines the foundational period (1922-24), Chapter 6 (“An International Lawyer’s Approach”) covers 1925-30, and Chapter 7 (“A National Lawyer’s Approach”) covers 1931-40.

The “international legal argument” of the title of this book mostly refers not to the arguments of counsel before the Permanent Court, but to Spiermann’s analysis of the reasoning in its decisions.   I found the analysis to be often obtuse and usually unpersuasive.   Perhaps Spiermann’s analysis of the subtleties of these decisions will be of interest to those who believe that such nuances, mostly in obscure cases, actually determine or contribute to the development of international law, but I am not among them.  In my view he does not find useful concepts or outcomes that have much vitality or interest.

As Spiermann notes, most of the cases in the 1920s involved treaty interpretation, yet these are discussed in a manner that isolates the cases from events in the outside world.  This becomes especially problematic in Chapter 7 (1931-40), when the events leading to the Nazi accession to power in Germany and the coming of World War II make the analysis of the Permanent Court’s opinions—largely isolated from consideration of European and world politics—especially problematic.

In his general conclusions, Spiermann argues that the Permanent Court of International Justice was a success simply because it was a pioneering institution.   That may be, but this book does not demonstrate its significance beyond that.  At the end, Spiermann does come out strongly in favor of what he calls the international lawyer’s approach:

[T]hat the better approach is the international lawyer’s approach as adopted by the Permanent Court in the 1920s is a lesson that cannot be learned once, a hindrance international law could not simply overcome in the 1920s.  It is a daily quest for international lawyers. International law being this complementary and residual legal system that owes its existence to national law, there is always the risk that the international lawyer fails to restraint (sic) the national lawyer lurking within him or her (p.404). [*593]

REFERENCES:

Friedmann, Wolfgang.  1964. THE CHANGING STRUCTURE OF INTERNATIONAL LAW.  New York: Columbia University Press.

von Glahn, Gerhard.  1992.  LAW AMONG NATIONS: AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW.  New York: Macmillan.

CASE REFERENCES:

SOUTH WEST AFRICA case [1966] ICJ Reports 6.

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© Copyright 2005 by the author, Donald W. Jackson.