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Procedure of the court is regulated by the Statute and the Rules of the Court.

Languages

Official languages of the Court were French and English. The choice between these two languages was given to parties. Judgment was delivered in the language of the procedure, in the case of disagreement it was delivered in two languages, one of which was considered as authoritative. Upon the request from one of the parties the Court could have authorized another language rather than one of the official languages. In this case every submitted document should have had English or French translation attached to it. Oral proceeding was in one of the official languages and if parties have chosen a different language, translation from one to another and vice versa was made by the Registrar. The party that wanted to use an unofficial language was responsible for translation.

Institution of Proceedings

Cases could have been brought by means of:

1. notification of a special agreement, i.e. voluntary jurisdiction, that arose from an agreement made ad hoc for the submission of a particular matter.

The Registrar had to be notified about the special agreement between states by way of filing of a certified copy of the text of the special agreement by at least one of the parties, usually with a separate letter attached to the copies. Copies of the special agreement were forwarded to members of the Court, League of Nations and states that had to appear before the Court. Notification of Special Agreement should have been submitted by all parties to the Agreement or at least confirmed by other parties. Notification had to be submitted in one of the official languages, or if submitted in another language, parties had to submit its translation.

2. written application, i.e. compulsory jurisdiction, founded upon a general agreement with a right of unilateral arraignment.

An application had to have information mentioned in the list below. If it did not meet these requirements the Registrar should have informed the applicant of any inconsistencies. The party also should have stated the provision which became the basis for the jurisdiction of the Court. A written application had to be addressed to the Registrar in French or English. The Registrar would send a copy of the Application to the opposite party/parties, members of the League of Nations, through the Secretary General, and to all states entitled to appear before the Court.

The document instituting proceedings would be brought to the attention of all member-states.

Both kinds of applications had to be addressed to the Registrar. Applications had to include:

1. subject of the dispute;
2. names of the parties;
3. statement of facts;
4. indication of the claim;
5. name of the applicant’s agent;
6. address at the seat of the Court to which notice and communications were to be sent.

Unanimous consent of parties was required for:

1. referring the case to one of the Special Chambers;
2. request of an assessor to be attached to the Court;
3. referring a case to the Chamber for Summary Procedure;
4. determination of the language of the procedure (if there was consent between them);
5. determination of whether hearings should be public or not;
6. discontinuance of the case.

Cases that fell under the jurisdiction of any Chamber mentioned under #1 above should have been heard either by the appropriate Chamber or full court, and could not have been referred to the Chamber of the Summary Procedure.

The Registrar was responsible for notifying member-states of the League of Nations and non-members interested in the case, as well as all members of the court, in respect of all applications and special agreements received by him/her.

The Statute of the Court determined only the framework of the procedure. Article 30 provided that the Court could make rules to regulate its own procedure in particular cases and in general. It also had the right to take for the basis of its procedures laws and regulations of different countries and was bound neither by the different codes of procedure nor terminology used in various states. Albiet new rules adopted by the Court had to satisfy general principles of procedure recognized by civilized nations. The Rules of Procedure could have been changed by the Court at any time and the Court was not obligated to notify parties in disputes about these changes (although it happened only twice, and parties were notified). By mutual consent parties could modify the rules of procedure for their case, but this proposition was subject to the Court’s approval and could not go against the Statute of the Court. Hence during the determination of the procedure the President should have taken into account the agreement of the parties as much as possible. Special agreement between the parties in a case could also expand or decrease the time-limit for certain procedures (presenting of memorials or counter-memorials etc.).

Interim Measures of Protection

On an application made by one of the parties, or on the initiative of the Court itself, the Court could provide provisional measures to secure rights of the interested parties. This procedure for providing interim measures of protection had a priority over all other cases. If the Court was not sitting at the time of the submission, the President could convene the Court. Presence of the national judges was not necessary during the hearing concerning interim measures. Compliance with a decision of the Court in such matters is relatively dependent on the presence of the corresponding article in the international treaty, but in any case failure to comply with the decision was unacceptable. The responsibility for further actions was borne by the Council.

Agents and Counsel

In the Court Parties must have been represented by agents and may have been assisted by counsel or advocates. None of them was required to have special qualification nor certain nationality, so parties were free to choose their representatives as they saw fit.

General Scheme of Procedure

The Procedure consisted of two parts:

1. 1.written proceedings – communication to the judges and to the parties of the case, counter-case, replies through the Registrar within time-limits set by the Court. Parties received copies of all documents submitted to the Court.

2. 2.oral proceedings – hearing of witnesses, experts, agents, counsel and advocates before the Court. Parties could propose special rules applicable to particular cases, which in order to be exercised had to be approved by the Court.

Written Proceedings

Article 43 of the Statute provided that "the written proceedings shall consist of the communication to the judges and to the Parties of the Cases, Counter-Cases, and if necessary Replies; also all papers and documents in support." After hearing parties, the Court or the President had to make necessary arrangements to determine the number and order of the documents of the written proceedings as well as time-limits within which documents of the written proceedings had to be filed. The Court could define the time-limit for the filing of some documents and could leave others without any specific deadline. This was done in the way of issuing a court order which was sent to each of the parties and the Secretary-General of the League of Nations. Extensions of time-limits could have been made, as per one of the parties' request, even if another party had not agreed to it.

The originals of all the documents dated and signed by the agent(s) had to be submitted to the Registrar. Parties were also obligated to submit 50 certified copies of all documents.

In cases by special agreement parties presented the following documents:

1. memorial, presented by each party within equal time-limit;
2. counter-memorial;
3. reply;

In cases by written application parties presented the following documents:

1. memorial by the applicant;
2. counter-memorial by the respondent;
3. reply by the applicant;
4. rejoinder by the respondent.

Memorials had to contain:

1. statement of the facts on which the claim was based;
2. statement of law;
3. statement of conclusions;
4. list of documents in support of the case.

Counter-case had to contain:

1. admission or opposition of the stated case;
2. statement of additional facts;
3. statement of law;
4. conclusions based on the facts stated;
5. list of the documents in support that had to be attached to the memorial or counter-memorial.

In the Chamber for Summary Procedure:

1. a written statement made by each party.

If one of the parties so requests the Chamber could ask for other written statements.

In a special proceeding initiated by a preliminary objection:

1. the written statement of the observations and submissions of the respondent.

If one of the parties so requested the Court could allow submission of other written statements.

In a subsidiary proceeding initiated by the request to intervene parties had to submit their written observations.

In a preliminary proceeding initiated by request for the revision of a judgment observations were submitted by the applicant as well as by the other party(ies).

In a proceeding for interpretation of a judgment initiated by the application, observations had to be submitted by the applicant as well as by other parties (another party). The Court could request additional explanations in writing or orally.

After the parties were heard, any government of any state entitled to appear before the Court had a right to access the cases and counter-cases. In order to be able to see all these documents a state had to get the consent of the Court or the President, in this way parties were protected against the improper usage of the information.

Termination of the written proceedings was in most cases the moment when the case was ready for hearing and the day of the oral hearing was set up. There was no formal pronouncement of the termination, because in practice not all supporting documents were presented even though required documents of the written proceedings were.

Oral Proceedings

Cases were heard in the order they became ready for hearing, that was reflected in the General List of Cases provided for in Article 20 of 1936 Rules. Also there were some cases that had priority over others (i.e. a request of interim measures of protection or interpretation of a judgment and cases before the Chamber for Summary Procedure).

Unlike written proceedings, oral proceedings were not required for every case brought before the Court. On the proposition of the parties, or sometimes by a decision of the Court itself, the Court could dispense with oral proceedings (e.g. in cases of the request for an intervention, if there was no disagreement between parties; or in the revision or interpretation of a judgment).

In advisory proceedings the Registrar notified states and other interested parties that the Court would be able to hear oral statements at a public sitting, although States were not required to bring the case before the Court for oral proceedings and could dispense with it.

The date of the actual hearing was fixed by the Court upon the termination of the written proceedings. Hearings usually consisted of the presentation of arguments made by agents, counsel and advocates; witnesses and experts were rarely heard. The hearing was usually held in public, but upon a request made by the parties, the Court could allow a closed hearing.

If the matter of facts arose before the Court, it made its decision on the basis of either documents provided in the written proceedings or statements given during oral proceedings. Such evidence as maps, photographs etc., were frequently used by parties during oral proceedings. Sometimes the full court, or more commonly several judges, would visit the scene to which the case was related (Meuse Case, Free Zone Case). Documentary evidence was not usually submitted during oral proceedings, because after written proceedings were terminated, additional documents could have been submitted only with the consent of the other party. Nevertheless during oral proceedings documents were frequently read or submitted on the request of the Court or a separate judge. During oral proceedings one party could ask another party to present certain documents. On the invitation of the Court or parties witnesses or experts could have given testimonies. Before opening of oral proceedings parties had to inform the Court of witnesses and/or experts that they were going to present as well as provide brief description of their statements. Notes of the testimonies taken during the proceeding had to be signed by a witness or expert. All service of documents except those on agents, counsel and advocates had to be done by the Court through governmental institutions, thus the Court had no power to call witnesses or experts directly, but had to do it through national courts and in accordance with national law. Both witnesses and experts had to make an oath before making testimonies, but the Court did not have power to punish them for false statements or testimony. Hearing of agents and counsel could take place before or after witnesses/’experts' testimonies. The order in which parties were heard was decided either by the parties themselves or, in cases of disagreement, by the Court. In case of:

- written application – the applicant would be heard first;

- special agreement – parties were heard in alphabetical order of the names of the parties;

- preliminary objection – objecting party would be heard first;

- interim measures – intercessor would have a priority in the hearing.

advisory proceedings - parties were heard in the alphabetical order of the names of the parties;

Rules of the Court did not put any time-limits on the statements. Agents and counsel could have been questioned by the Court as well.

At the beginning of the oral proceeding every party should have defined before the Court: the nature of the dispute and what it wants the Court to decide. Even though it was not the Court’s responsibility to define submissions, it could interpret them or ask for appropriate clarification by the party that submitted it. Submissions also had to be present in the preliminary objection documents and replies. There were no deadlines for presenting the submissions, except in cases where it was defined by the special agreement. The content of the submission could have been changed at any time, even at the end of the oral proceedings, though the Court could limit changes that could have been done.

The President declared the hearing closed when agents, advocates and counsel were done with their statements and the Court was fully satisfied with them. The Court could also ask parties for further explanations after the proceedings were closed or reopen oral proceedings.

Decision making

Before the beginning of the oral proceedings judges had a meeting for the purpose of exchanging views and discussing procedural and jurisdictional matters.

The deliberations consisted of several phases:

1. collective examination of the case – judges in turn on the basis of the inverse order of seniority, commented on the case involved. The President was responsible for ensuring that all necessary questions were discussed. All judges submitted their individual notes. On their basis the President prepared an agenda of the next discussion.

2. general discussion – judges voted on the points of the case. On the ground of these votes the drafting committee was elected (2 judges and the President). The committee prepared the draft of the judgment or opinion that could have been amended by any judge.

3. first reading – the Court adopted the text of the judgment. Judges were able to familiarize themselves with the individual opinions of other judges.

4. second reading – the Court adopted final text of the judgment and adopted versions in both languages.

The text of the judgment could have been changed before it had been read in open Court.

All questions were decided by the majority of judges present during voting (in the order inverse to the order of precedence). No judge could abstain from voting. If votes divided equally, the President had the deciding vote. The minutes of private sessions included only the subject of the debates, the votes taken, the names of judges voting for and against a motion, and statements specifically made to be included in the minutes. The minutes were approved by the Court and signed by the President and the Registrar and had to be kept confidential.

The Court could issue 5 kinds of documents: 1) decision; 2) resolution; 3) order: 4) judgment; 5) opinion.

Decisions - in cases of incidental questions that had to be decided during oral proceedings. They were usually related to general procedural matters. Decisions could be issued either by the Court or by the President and could be formal or informal.

Resolutions were also adopted to regulate particular procedural matters (to invite agents to make certain statements, to send a special communication to international organization; publication of record of the hearing etc.)

Orders were usually issued for the purpose of a) fixing deadlines, b) to request submission of evidence, c) to cancel proceedings, d) joinder of preliminary objections and applications, e) appointing judges ad hoc, f) decision made on the request for interim measures of protection. Although "orders [did] not have binding force or final effect in deciding the dispute", compliance with them in most cases would be required for next proceedings

Judgments

The judgment had to be given by the Court in these cases:

- as a result of contentious proceedings;

- to open proceedings for the revision of a judgment;

- decision on the request to intervene;

- decision on the request for revision or interpretation of the judgment.

The judgment had to indicate:

- date on which it is pronounced;

- number of judges constituting majority;

- names of the participating judges (those who took part in all proceedings);

- names of parties and agents;

- etc.

The parties and agents had to be informed of the date and time of the open proceeding where judgment would be read. The judgment was considered to be in effect after it had been read.

Judgments consisted of the following parts:

1. summary of the proceedings and submissions of the parties;

2. statement of the facts;

3. reasons in point of law;

4. operative provisions.

The operative part was written as a recommendation rather than a command, and disclosed acts/provisions that had to be done in this case in accordance with the law. In the case of a special agreement the Court tried to keep the "language" of the judgment as close as possible to the actual agreement. After the judgment was pronounced, parties could dispose of their legal rights, and as a result cancel the liability under the judgment.

Opinions

There were two kinds of opinions:

1. Dissenting opinions – issued by dissenting judge and attached to a judgment, advisory opinion or even an order, these opinions had to represent the personal opinion of the judge that is different from the one accepted by the Court on the matter in question, but not a criticism of the judgment or opinion of the Court. All judges should be informed of the text of any dissents before the end of the second reading.

2. Concurring opinions – issued by the judges in the form of observations or separate opinions that did not directly contradict the judgment or opinion of the rest of the Court. For more details see March 17, 1936 Resolution of the Court.

On the request of one of the parties the Court could provide interpretation of the judgment. If the judgment has been made by the Chamber it should have been interpreted by the Chamber, if it was made by the full Court it had to be interpreted by the full Court. The interpretation was given in the form of a judgment, but it could not have gone beyond the limits of the judgment itself, because it could not add anything to the judgment and could not have more jurisdiction that the judgment had. The Court could use only facts that were used for the judgment.

The Court could also revise the judgment upon the request of a party, but prior to that it could require compliance with the first judgment. The procedure for the revision of the judgment consisted of the same parts as usual contentious proceedings.

The Court had neither power nor responsibility to look for the execution of the judgment. It could not in any way penalize a defaulting party. On the other hand, member-states of the League of Nations were bound by Article 13 (4) to execute the judgment made by the Court, otherwise the Council had to propose the steps that had to be made in order for the judgment to be enforced. If the state still did not comply with the decision any other member-state could provide economic measures applicable in that case. There were only a few cases in which the Court had to perform specific acts and all judgments of the Court were enforced.

SOURCES:

1. Alexander P. Fachiri The Permanent Court of International Justice: Its Constitution, Procedure and Work 2nd Edition, (London: Humphrey Milford, Oxford University Press, 1932).

2. Manley O. Hudson The Permanent Court of International Justice 1920 – 1942: A Treatise (New York: The Macmillan Company, 1943).

   
         
   
   
         
         
   

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