Nomination of Judges

The electorate consisted of the Assembly and Council of the League of Nations . Their choice was limited to the candidates submitted to them by the nominating authority. The candidates were nominated by the national groups in the Court of Arbitration i.e. by the members of that Court appointed under Art. 44 of the Hague Convention of 1907 and, in the case of states which were not parties to the Convention, by national groups appointed in the same manner.

The only states entitled through their national groups to nominate candidates were those which were Members of the League or mentioned in the Annex to the Covenant. The Revision Protocol provided that any state having accepted the Statute would be able to take part in the nomination as well as the election of the judges.

At least 3 months before an election, the Secretary-General of the League should have called upon the members of the groups to nominate, within a given time, persons in a position to accept the duties of the members of the Court. The maximum number of candidates which any one group could nominate was four, and of these only two could have been of the nationality of their group. The number of candidates could not be more than double the number of seats to be filled. Thus if the election was for the full number of judges, or for any number exceeding one, four nominations were allowed, but if there was only one vacancy to be filled, the national group was limited to two nominees being of the group's own nationality. Two or more national groups could nominate the same person.

Election of Judges

After the process of nomination was completed, the Secretary-General of the League of Nations had to prepare a list of candidates and submit it to the Assembly and the Council. These organs then would independently elect the judges and deputy-judges. There was no express provision provided by the Statute as to the election in these two bodies. The elections were made by absolute majority, i.e. each candidate had to, in order to be elected, receive a majority of all the votes cast, not merely more votes than any other candidate. Further, he should have received an absolute majority of votes both in the Assembly and in the Council. The two bodies held separate and simultaneous sessions, at which the voting took place by secret ballot. Successive ballots were held until the required number of elections has been made. Then the list of successful candidates in each body were compared to each other and those whose names appear in both were elected. If more than one Member of the same nation was elected in this way, the election of the eldest of them was alone effective, the other election(s) were regarded as null and void. If, after the 1st meeting in each body held for the purpose of the election, one or more positions remained to be filled, 2nd and, if necessary, 3rd meetings would take place. If the 3rd meeting of the Assembly and Council in accordance with the normal procedure did not result in the whole quota of judges or deputy-judges, a joint conference consisting of 6 members (3 appointed by the Assembly and 3 by the Council) would be set up. The joint conference did not take place automatically at the conclusion of the unsuccessful 3rd meeting. The Assembly or the Council would propose this formation when they considered that a prolongation of the normal procedure would be useless. The duty of the commission was to select a name for submission to the Assembly and Council which would satisfy both of them. It did not have power to impose its choice upon them. In the deadlock, the commission could go outside of the list provided. This was the only case in which a candidate for election could be sought outside of the body of candidates nominated by the national groups.

After the joint conference would submit the name(s) to the Assembly and Council they would vote in the same way as before. In the event of an equal vote among the judges the eldest had a casting vote.

Term of office

Members of the Court were elected for 9 years and were eligible for re-election. Three considerations were involved in the duration of a judge's term of office:
1) the vital matter of irremovability;
2) continuity of jurisprudence;
3) the possibility of eliminating unsatisfactory judges.

Although the judge's term was 9 years they had to continue to sit until their places had been filled. Moreover, they had to sit in, and finish, all cases which they had begun to hear at the time of the expiration of their term, even after appointment of a successor. The term of office of judges and deputy-judges commenced to run on January 1 of the year following their election. Vacancies caused by death, removal or resignation were filled by the same method as that laid down for the original election. But the member elected to fill such a vacancy would hold office only for the remainder of his predecessor's term.

The members of the Court were divided into judges and deputy-judges. The function of the deputy-judges was to replace the judges when, for any reason, a sufficient number of them was not able to be present. But because of the large number of judges, the office of deputy-judges was abolished under the Revision Protocol. Judges could not be a member of a government, a member of the diplomatic or civil service, a representative on the Council or Assembly of the League of Nations, or a member of the Secretariat. The question of whether a judge could be a member of a legislature should have been decided on a case-by-case basis. The election of a person holding an incompatible office was not void. It was not a question of disqualification; the judge elected in this manner had to decide whether he would accept his appointment as a judge and resign his other office, or retain the latter and decline the judgeship. The Revised Statute also prohibited the members of the Court from engaging in any occupation of a professional nature. No member of the Court could participate in the decision of any case in which he had previously taken an active part as an agent, counsel or advocate for one of the contesting parties, or as a member of a national or international court, or of a commission of inquiry, or in any other capacity (PCIJ Statute Art. 17). There was only one way by which it was possible to dismiss a member of the Court and that is by the unanimous decision of all other members. The members of the Court, when engaged in the business of the Court, enjoyed diplomatic privileges and immunities.

The Court elected its President and Vice-President. Their term of office was 3 years, and they were eligible for re-election. The President directed the work and administration of the Court and presided at the meetings of the full Court. The Vise-President took the President's place when he/she was unable to be present or if the Presidency was vacant (until the appointment of the new President). The election took place by secret ballot, and the candidate obtaining an absolute majority of votes was declared elected. The Court appointed its Registrar. She/he was elected by the majority of votes given by a secret ballot. Her/his term of office was 7 years, and was also subject to re-election.

Number of Judges

The total number of judges constituting the full Court was 15, but it was contemplated that two judges at a time could have been given long leave. The normal number would be 13 or even 12. The deputy-judges had to be summoned if, and only if, 11 judges could not be assembled. A quorum of 9, however, sufficed to constitute the Court. Judges ad hoc were not taken into account for the calculation of the quorum, or of the eleven judges mentioned above.

National Judges

The Statute provided that:
1) judges of the nationality of each contesting party retained their right to sit in the case before the Court;
2) if the Court included a judge of the nationality of one of the parties only, the other party could have selected from among the deputy judges a judge of its nationality, if there be one. If there was no such deputy judge, the party may choose a judge, preferably from among those persons who have been nominated as candidates;
3) if the Court did not include upon the bench judges of the nationalities of the contesting parties, each of them may proceed to select or choose a judge. The national judges summoned ad hoc were equal to ordinary judges in respect of their qualifications, on the one hand, and powers and duties, on the other.

CHAMBERS

The Statute provided for the formation (by the Court) of special chambers to hear cases related to labour, transit and communications, respectively.

1. Chamber for Labour Cases

Primarily, labour cases should have been those referred to in Part XIII of the Treaty of Versailles and corresponding sections of the other Peace Treaties, but they were not necessarily confined to those cases. The Labour clauses of the Peace Treaties set up an International Labour Organization affiliated with the League of Nations, which, inter alia, was entrusted (through the body known as the Conference) with the task of making recommendations and framing draft conventions related to the conditions of labour. The PCIJ retained compulsory jurisdiction in connection with the questions which may have arose in respect of the fulfillment or non-fulfillment by individual States of their obligations in regards to these recommendations and conventions, as well as, in all questions or disputes relating to the interpretation of the Labour clauses themselves or subsequent conventions concluded in pursuance thereof, i.e. the contracting parties consented in advance to allow any one of them to bring the matter before the Court without further agreement in regard to the submission of a particular case.

The Procedure for Labour cases

Every 3 years the Court appointed a special chamber of 5 judges. In addition, 2 judges were selected for the purpose of replacing a judge who could not participate in the proceedings. If parties so demanded, cases could be heard and determined by this chamber. In the absence of any such demand, the full Court would sit. However, in both cases (i.e. chamber/full court), judges trying labour cases would have to be supported by 4 technical experts (who would not have the right to vote). Technical experts were chosen for each particular case from a list of "Assessors of Labour Cases" nominated by each member of the League and an equivalent number nominated by the Governing Body of the Labour Office. The Governing Body should have divided its nominees equally between representatives of workers and employers whose names appeared on the list of persons of industrial experience mentioned in Treaty of Versailles (Art. 412). The appointment of the experts for each case was made by an absolute majority of votes either by the Court or by the special chamber which had to deal with the case. The President of the Court was charged with obtaining all information which might have been helpful to the Court in selecting the experts in each case.

In the labour cases the International Labour Office was at liberty to furnish the Court with all relevant information, and for this purpose its Director should have received copies of all written proceedings. This is the only instance in which the Statute conferred the right of taking part in a contentious case before the Court upon any entity other than States. The right was limited to giving information, and did not enable the International Labour Office to occupy the position of a party.

2. The Chamber for Transit cases

The second group of cases for which a special procedure was laid down was related to transit and communications. Cases particularly aimed at were those referred to in Part XII (Ports, Waterways, and Railways) of the Treaty of Versailles and the corresponding portions of other Peace Treaties, whereby 'compulsory' jurisdiction was conferred upon the Court, but again the Chamber/Court under Article 27 of the Statute was not limited only by these cases; all int'l disputes relating to transit and communications were within its provisions.

The procedure adopted was similar to Labour cases, with the exception that the technical experts did not participate by default, but only when it was so desired by the parties or the Court. This distinction between procedures was introduced in the course of the final consideration of the Draft Statute by the plenary meeting of the First Assembly, when it was pointed out that Transit and Communications cases would not in their legal aspect necessarily bear a technical character and would not necessarily involve domestic and sociological elements attached to labour cases.

Technical experts in transit and communications cases, if they sat as a result of the decision of the Court, received out of the funds of the Court the same compensation as experts in Labour cases. If they sat at the request of the parties compensation was to be covered by the parties in accordance with rules made by the Court.

By way of an exception to the general rule, Articles 26 and 27 provided that if there was a national judge of only one party sitting as a judge in the special chamber, the President of the Court would invite one of the other judges to retire in order to substitute him/her with a judge chosen by the other party in accordance with Article 31, but this system was altered by the Revision Protocol.

3. The Chamber of Summary Procedure

It was composed of 3 judges (5 under the Revised Statute) elected annually by the full Court, and could hear and determine cases by summary procedure at the request of the contesting parties. Its jurisdiction only arose as a result of the corresponding agreement between the parties.


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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