THE INTERNATIONAL COURT OF JUSTICE*

GRANT GILMOREt

THE International Court of Justice, "the principal judicial organ of

the United Nations," 1 has replaced the League of Nations' Permanent
Court of International Justice 2 with little change in the Court's con-
stitution, in its relationship to the parent international organization,
in the extent of its jurisdiction, or in the procedure prescribed under
its Statute. The new Court has a new name, a technically new Statute,
some new judges and, perhaps most important of all, some new mem-
bers. 3 In matters of substance, however, the new Court is a continua-
tion of the old. It need not be expected, nor -as it intended, to add
anything new to the structure of international order.
Salvaging for the new Court the twenty years' accumulation of
experience and precedent of the old Court was deliberate and mean-
ingful. When, during 1943 and 1944, the form to be given the inter-
national organization to which the Allied Powers had committed them-
selves first came under discussion, there was general agreement that
the Permanent Court of International Justice had creditably performed
a pioneering task.4 The draftsmen of the instrument establishing the

*The United Nations Charter will be referred to as CAnTER; the Covenant of the
League of Nations as CovEqA=r; the Statute of the Permanent Court of International
Justice as STATUTE or ORIGI NAL STATUTE; the Statute of the International Court of Ju3tice
as REvISED STATUTE; HuDso., THE PE Pk.ENT COURT OF IirrEsnNATO:;..L JusTICul,
1920-1942 (1943) as Hunso-x.
t Assistant Professor of Law, Yale School of Law. Member of the New Yor!: bar;
formerly associated with the office of the General Counsel, Navy Department.
1. CHA TER, Art. 92; RE-VSED STATUTE, Art. 1.
2. Articles 13 and 14 of the CovEx ,ir (Part I of the Treaty of Verzailles) provided
for the submission to arbitration of certain disputes between League members and for the
establishment of "a Permanent Court of International Justice."
3. "All Members of the United Nations are ipso facto parties to the Statute of the
International Court of Justice." CHARTER, Art. 93(1). Article 93(2) provides for the ad-
herence to the REvisED STATUTE of States not members of the United Nations. Adherence
to the ORIGIMAL STATUTE was accomplished by individual State ratifications and did not
follow automatically from membership in the League of Nations. Neither the United State3
nor Russia ever adhered to the ORIGINAI. STATUTE. For the story of the efforts to secure
such adherence on the part of the United States, see HuDso,., 216 cl sc. In all, 59 State,
adhered to the OEiGI..t. STATTrE, id. at 128.
4. "It is, we think, generally agreed that the Statute [of the Permanent Court] has
on the whole worked well, and it is desirable to make full use of an existing structure which
has proved well adapted for its purpose." See § 4, Report, dated February 10, 1944, of the
Informal Inter-Allied Committee on the Future of the Permanent Court of International
Justice, reprinted in (1945) 39 Am. J. I.-r.L. (Supp.) 1, 2. The Report vws is-sued as Bnansu
PALmLurNTAY PAPERS, isc. No. 2 (1944), Cmd. 6531. It vms prepared by a committee
of experts appointed by the Governments of Belgium, Canada, Czechoslovakia, Greece,
Luxemburg, The Netherlands, New Zealand, Norway, Poland, The United Kingdom and
by the French National Committee. Hudson, The Twenty-Third Year of the Perm.aret
1050 THE YALE LAW JOURNAL [Vol. 55: 1049

new Court, therefore, left well enough alone and, although it was
decided to prepare a completely new Statute, rather than modify the
original Statute, the changes made, with a few minor exceptions, were
those required to substitute United Nations terminology for League"of
Nations terminology.5
Is the present Court, or could it become, an effective agency for
world peace? What is the scope of the Court's jurisdiction or compe-
tence, and what should it be? The two questions are interrelated and
interdependent. The greater the area of the Court's jurisdiction, the
greater the effectiveness of the Court's work, provided always, how-
ever, that the jurisdiction conferred is something more than a paper
charter. Watered stock can be a judicial as well as a corporate ca-
lamity.
When the Permanent Court was established in 1920, the principal
innovation was thought to be the creation of a continuing judicial body,
which could by virtue of its continuity develop its own traditions,
forms, precedents and jurisprudence. Previously each international
a~bitral tribunal had to be specially constituted by the parties, and
performed its task without reference, or with only informal reference,
to past decisions of similar tribunals.6 The Permanent Court was de-

Court of InternationalJustice and its Future (1945) 39 Am. J.INT. L. 1, 2. Chapter 7 of the
Dumbarton Oaks Proposals proposed the creation of "an international court of justice"
whose statute should be "either (a) the Statute of the Permanent Court of International
Justice, continued in force with such modifications as may be desirable or (b) a new statute
in the preparation of which the Statute of the Permanent Court of International Justice
should be used as a basis." American and CanadianBar Associations-Consensusof Views
on the InternationalCourtof the United NationsOrganization,dated March 22, 1945, reprinted
in (1945) 39 Am. J. INT. L. (Supp.) 143, contains the following statements summarizing the
attitudes expressed at 25 Regional Group Conferences held in the United States and Canada
to discuss the proposed international court: "The Statute of the [Permanent Court of Inter-
national Justice] supplies solutions, which on the whole are quite satisfactory, of issues
debated over many decades. . . .The Court functioned with astonishing success over a
period of eighteen years-from 1922 to 1940. Sixty-five cases came before it during this
period, and the Court's handling of them produced a general satisfaction throughout the
world." Id. at 149. The Consensus of Views strongly urged the continuation in force, with
appropriate modifications, of the ORIGINAL STATUTE (the first alternative stated in the
Dumbarton Oaks Proposals) rather than the drafting of a revised statute. The ORIGINAL
STATUTE was drafted in 1920 by a Committee of Jurists in which the United States was
represented by Elihu Root, who apparently had an influential role; the ORIGINAL STATUTE
was revised generally in 1929 with an eye to the possible adherence of the United States to
the Court.
5. See Hudson, The Twenty-Fourth Year of the World Court (1946) 40 AM. J. INT. L. 1,
for a correlation of the ORIGINAL and REVISED STATUTES and an analysis of the changes
made.
6. For a bibliography on international arbitration see 2 OPENIMIEM, INTERNATIONAL
LAW (6th ed. by Lauterpacht, 1940) 19. For excellent general discussion, see LAUTERI'ACliT,
THE FUNCTION OF LAw IN THE INTERNATIONAL ComMUiTy (1933). The Convention for
the Pacific Settlement of International Disputes signed at the Second Hague Convention,
19461 THE INTERNATIONAL COURT OF JUSTICE 1051

signed to be, and was, a notable procedural advance, in that successive

disputes could come before the same Court, compospd of judges who
sat for relatively long terms, operating under permanent rules. The
Court was not designed to bring about any change in the number or
gravity of international disputes submitted to arbitration, except
insofar as the Court's existence, availability and (it was hoped) growy-
ing prestige might induce parties to submit themselves voluntarily
to its jurisdiction. The only new jurisdictional element was an almost
accidental by-product of the League Covenant: the Court was em-
powered to give7 advisory opinions on questions referred to it by the
League Council.
The Court's jurisdiction was thus in part contentious, in part advi-
sory. Consideration of what the Court accomplished under its double
mandate will clarify what can be expected of the Court in its second,
or United Nations, phase, and, to some extent, what can be expected
of any international court-i.e., what limitations there are to the
effectiveness of such a court.
The Court's contentious jurisdiction in both its League of Nations
and its United Nations phases is substantially limited to cases which
the parties to a dispute are willing to bring before it.8 Under the so-
called "optional compulsory jurisdiction" clause in the original Statute,
which has been continued without important change in the revised
Statute, States adhering to the Court may, however, declare that they

1907, established a Permanent Court of Arbitration, which facilitated the setting up of

arbitral tribunals by providing a central administrative body and a permanent panel of
arbitrators from which parties desiring arbitration could select members for a tribunal. The
Permanent Court of International Justice was designed to be supplementary to, and not to
supersede, the Permanent Court of Arbitration, which has continued in e.istence although
overshadowed by the Permanent Court of International justice. The "national groups"
in the Permanent Court of Arbitration nominate in the first instance judges of the Interna-
tional Court of Justice, REVISED STATUTE, Art. 4. HABIcnT, POST-WAR TREATIES ror,T1CE
PAciFIc SETTLE.mENT OF INTE-mRATIO.%L DISPUTES (1931) collects 130 arbitration treaties
between various States executed between 191S and 1928, many of which provide for refer-
ence of disputes to the Permanent Court of Arbitration.
7. CovENANT, Art. 14: "The Court may also give an advisory opinion upon any dis-
pute or question referred to it by the Council or by the Assembly." The STATurTE, as drafted
in 1920, made no reference to the Court's advisory jurisdiction. Rules, adopted by the
Court in 1922, clarified the practice to be followed and those rules were incorporated as
Article 65 of the STATUTE in the 1929 revision. HuDsoN, 210-3. For the provisions on the
Court's advisory jurisdiction under the REVISED STATUTE, see infra, note 19.
S. COVENANT, Art. 14: "The Court shall be competent to hear and determine any
dispute of an international character which the parties thereto submit to it." RInVis I
STATUTE, Art. 36 (1): "The jurisdiction of the Court comprises all cases which the parties
refer to it and all matters specially provided for in he Cl arter of he Uniled Nations or us
treaties and conventions in force." (Italicized words are words added to the ORIGLNAL
STATUTE in the REVISED STATUTE.) Since the CHARTER confers no jurisdiction on the
Court, the reference to "matters specially provided for" therein seems to be prezently
nugatory. See Hudson, op. ci. supranote 5, at 32.
1052 THE YALE LAW JOURNAL [Vol. 55: 1049

recognize the Court's jurisdiction as "compulsory ipso facto and with-

out special agreement, in relation to any other state accepting the same
obligation. . .".. During the Court's League period, forty-six States
made declarations under this provision."0 Many of these declarations
were, however, so fogged over with reservations and exceptions that
they did not in fact notably extend the Court's jurisdiction beyond the
caprice and whim of the declarant States."
It is not believed that the filing of such a declaration by the United
States, under the terms of a resolution recently adopted by the Senate
"advising and consenting" thereto,"2 has in any way changed the exist-
ing situation. The Senate resolution authorized a declaration in the

9. REVISED STATUTE, Art. 36(2). Under both the ORIGINAL and REVISED STATUmvs
(Art. 36(2)) the effectiveness of such a Declaration is apparently limited to legal "disputes
concerning: (a) the interpretation of a treaty; (b) any question of ifternational law; (c) the
existence of any fact which, if established, would constitute the breach of an international
obligation; (d) the nature or extent of the reparation to be made for the breach of an inter-
national obligation." See COVENANT, Art. 13. This enumeration was derived from the
Hague Conventions on Pacific Settlement, 1899 and 1907, HUDSON, 193. For discussion of
the effect and meaning of the four categories, see HUDSON, 454 et seq.
10. English texts of the various Declarations are assembled in 1 HuDSON, WoRL
COURT REPORTS (1934) 29 et seq. Declarations made under the ORIGINAL STATUTE are, by
Article 36(5) of the REVISED STATUTE, deemed to continue in effect "for the period which
they still have to run and in accordance with their terms."
11. Thus the British Declaration, deposited in 1929 and ratified in 1930, covered only
"disputes arising after the ratification of the present declaration with regard to situationg
or facts subsequent to the said ratification," further excepted (1) disputes which the parties.
agreed to settle in some other way, (2) disputes between the United Kingdom and any
member of the British Commonwealth, (3) disputes "with regard to questions which by
international law fall exclusively within the jurisdiction of the United Kingdom," and made
the whole subject to the condition that the United Kingdom could require the suspension of
proceedings in the Court with respect to any dispute submitted to and under consideration
by the League Council. On the meaning and effect of these reservations, see Lauterpacht,
The British Reservations to the Optional Clause (1930) 10 EcoNofIsCA 137. "The Optional
Clause . . ." concludes Lauterpacht, "as a general obligation of straightforward simplicity
has been considerably weakened" by the British reservations, which he describes as intro.
ducing "an element of uncertainty and controversy" and as being "of an indetetiminate
nature reminiscent of a period when arbitration treaties served the purpose of concealing
the true attitude of governments inimical to obligatory judicial settlement." Id. at 171-2.
Many of the smaller nations deposited Declarations which were subject only to thu limita.
tons contained in Article 36(2) itself, supra note 9. In eleven cases the Court's jurisdiction
was invoked under Declarations filed under Article 36(2): in two cases, neither party ob.
jected to the jurisdiction; in four cases objections to the jurisdiction were upheld in whole
or in part; in five cases ihe proceedings did not reach a point where the Court had to con-
sider the jurisdictional question. HUDSON, 477 et seq. The only case involving a Great
Power in which Article 36(2) was sought to be invoked was the case of Phosphates in Mo.
rocco, P.C.I.J., Ser. A/B, No. 74 (1938), in which the Court held, on French objection to
an Italian application, that it la~ked jurisdiction. The Court has thus not yet found itself
in the unhappy position of attempting to coerce a Great Power to appear before it, and,
failing such appearance, of rendering judgment against it by default.
12. SEN. RES. 196, 79th Cong., 2d Sess. (1946), 92 Cong. Rec., Aug. 2, 1946, at 10850.
19461 THE INTERNATIONAL COURT OF JUSTICE 1053

language of the "optional compulsory jurisdiction" clause, to remain

in force for five years, provided that the declaration shall not apply to
(a) disputes which the parties entrust to other tribunals, (b) "disputes
with regard to matters which are essentially within the domestic juris-
diction of the United States as determined by the United States," and
(c) disputes arising under a multilateral treaty unless all parties to the
treaty are also parties before the Court or the United States specially
agrees to the Court's jurisdiction. 13 The reservation excepting dis-
putes "essentially" within the domestic jurisdiction "as determined by
the United States" leaves the United States a free hand to determine
whether any particular dispute shall be submitted to the Court. The
declaration authorized by the Senate resolution has now been filed on
behalf of the United States.14
Under the Court's contentious jurisdiction, some thirty cases were
disposed of between 1920 and 1940. None of these cases w-as of any
great significance or importance, if those words be taken to refer to the
bright hope of a better world. They were the undramatic, unspectacu-
lar run-of-the-mill cases which any court, international or national, is
13. SEN. REs. 196, as reported to the Senate by the Committee on Foreign Relations
(see SEN. REP. No. 1835, 79th Cong., 2d Sess. (1946)), did not include the reservation as to
disputes arising under multilateral treaties and did not have in the reservation relating to
domestic jurisdiction the words "as determined by the United States." The multilateral
treaty reservation, sponsored by Mr. John Foster Dulles, was introduced from the floor by
Senator Vandenberg and accepted without debate or record vote, 92 Cong. Rec., Aug. 1,
1946, at 10757-8. Most of the Senate debate was realistically devoted to the question
whether the United States in accepting the Court's "compulsory jurisdiction" was exposing
itself to the possibility of actually losing a case it might vant to win. Sanator Austin,
making his last appearance in the Senate before taking up his duties as delegate to the
United Nations Security Council, attempted to allay his colleagues' fears by pointing out
that the Court does not have power to compel execution of its judgments; that, if the
United States should resist an adverse decision of the Court, the only course open to the
prevailing party would be to bring the matter before the Security Council under Article 94
of the CHARTER (".... The Security Council . . . may, if it deems necezary, make
recommendations or decide upon measures to be taken to give effect to the judgment").
"Such a position," concluded Senator Austin, "is entirely moral and entirely legalistic, and
is within the four corners of our great engagement." 92 Cong. Rec., Aug. 1, 1946, at 10763.
The balance of the debate shows that the senators were not slow to catch the implication
that the United States holds a veto over any action by the Security Council. To male
assurance doubly sure, however, Senator Connally, while professing to have "more or le:s
enjoyed" Senator Austin's remarks, proposed the addition of the words "as determined by
the United States" to the domestic jurisdiction reservation. (Ibid.) In support of his reso-
lution Senator Connally remarked: "We do not propose to have a Court of 15, 14 of whom
will be alien judges-I do not reflect upon them-decide that a domestic question is an
international question. . . . Mr. President, I am in favor of the International Court of
Justice. I am in favor of the United Nations, but I am also for the United States of America."
(Id. Aug. 2, 1946, at 10340.) Senator Connally's amendment was adopted by a vote of 51
to 12 (id. at 10841) and the resolution as amended was passed by a vote of 60 to 2 (id.
at 10850).
14. See N. Y. Times, July 16, 1946, p. 3, col. 5.
1054 THE YALE LAW JOURNAL [Vol. 55 :1049

primarily equipped to handle. They were, since the Court's jurisdiction

was limited to cases which the disputant States were willing to have
adjudicated, cases on which the States concerned were willing to take
a chance of losing.
Typical cases involved the right of Germany to deny passage through
the Kiel Canal to a vessel engaged in transporting munitions of war for
use by Poland in its war against Russia;15 the right of Turkey to arrest
and institute criminal proceedings against a French citizen who, as
captain of a French ship, shared responsibility for the collision of the
French ship with a Turkish ship on the high seas ;16 the rights of holders
of various Serbian loans issued in France to receive payment in gold ;"?
and the right of the Belgian Government to regulate river transporta-
tion on the Congo to the benefit of a government monopoly and the
detriment of a trader of British nationality."8
Thus the Court's contentious jurisdiction produced nothing par-
ticularly novel and the Court functioned smoothly and efficiently in
traditional grooves. Its advisory jurisdiction, however, which turned
out to have been booby-trapped, deserves more extended analysis. (It
should be noted that one of the few significant changes made in the
revised Statute has worked a limitation in this branch of the Court's
jurisdiction.) 11 We shall examine two of the cases referred to the Court

15. The S. S. Wimbledon; Great Britain, France, Italy, Japan, and Poland (inter-
vening) v. Germany, P.C.I.J., Ser. A, No. 1 (1923); 1 HUDSON, WORLD COURT REI'ORTS
(1934) 163.
16. The S. S. Lotus; Turkey v. France, P.C.I.J., Ser. A, No. 10 (1927); 2 HUDSON,
WORLD COURT REPORTS (1935) 20.
17. Payment of Serbian Loans; France v. Yugoslavia, P.C.I.J., Ser. A, No. 20/21
(1929); 2 HUDSON, WORLD COURT REPORTS (1935) 340.
18. The Oscar Chinn Case; Belgium v. Great Britain, P.C.I.J., Ser. A/B, No. 63
(1934); 3 HUDSON, WORLD COURT REPORTS (1938) 416.
19. For the extent of the Court's advisory jurisdiction under the COVENANT and the
ORIGINAL STATUTE, see note 7 supra. Article 96(1) of the CHARTER: "The General Assembly
or the Security Council may request the International Court of Justice to give an advisory
opinion on any legal question." Thus while under the COVENANT the Court could give its
opinion on "any dispute or question referred to it," under the CHARTER the Court's opinion
may be requested only on "legal questions"--thereby, it may be, sharply narrowing its
advisory jurisdiction. Article 96(2) of the CHARTER empowers "Other organs of the United
Nations and specialized agencies, . ..authorized by the General Assembly," to request
advisory opinions "on legal questions arising within the scope of their activities." Article 96
of the CHARTER is implemented by Article 65 of the REvISED STATUTE, which provides:
"The Court may give an advisory opinion on any legal question at the request of whatever
body may be authorized by or in accordance with the Charter of the United Nations to
make such a request." It may be noted that while the CHARTER restricts the referring body
(Council, etc.) to "legal questions," the STATUTE completes the job by limiting to "legal
questions" the Court's jurisdiction to give opinions on questions referred. Thus on each
reference the Court will have initially to determine that the question referred is "legal" or
"non-legal" and cannot take the position that reference by the Security Council, etc. is
determinative of the "legality" of the question referred, as might have been argued under
 19461 THE INTERNATIONAL COURT OF JUSTICE

for its advisory opinion by a League Council which was never notable
for its capacity to meet difficult issues squarely.
The Eastern Carelia case -"grew out of hostilities between Russian
and Finnish forces following the Russian Revolution. A peace treaty
concluded at Dorpat in 1920 provided inter alia for the withdrawal of
Finnish troops from certain Communes which were to be "reincorpor-
ated in the State of Russia and . . . attached to the autonomous
territory of Eastern Carelia . . . which shall enjoy the national right
of self-determination." Annexed to the peace treaty was a "Declara-
tion of the Russian Delegation with regard to the autonomy of Eastern
Carelia" which, on behalf of the "Socialist Federative Republic of the
Russian Soviets," "guaranteed" to the Carelian population that "(2)
that part of Eastern Carelia which is inhabited by the said population
shall constitute, so far as its internal affairs are concerned, an autono-
mous territory united to Russia on a federal basis." In 1921, following
an attempted revolt against Russian sovereignty in Eastern Carelia,
the Finnish Government brought the matter before the League Council.
An attempt, made through the Estonian Government to have Russia
submit the matter to the Council as a non-member State, met w ith
Soviet refusal on the ground that the question w%%as purely domestic,
the references to Carelian autonomy in the Dorpat Treaty and the
annexed Declaration being merely descriptive of an existing situation
and not intended to create treaty obligations. After a year's delay the
Council, at the suggestion of Finland, referred to the Court the ques-
tion whether those references in the Treaty and Declaration consti-
tuted "engagements of an international character" which Russia would
be under a duty, towards Finland, to carry out. Finland appeared
before the Court and submitted a voluminous dossier. Russian partici-
pation was limited to a splenetic telegram signed by Tchitcherin,
Commissar for Foreign Affairs, which stated that Russia found it im-
possible to take part in the proceedings before the Court, which were
"without legal value either in substance or in form," briefly rehearsed
the Russian position in a series of "Whereases," denied the right of
the "so-called League of Nations" to intervene, and in conclusion
referred to the shabby treatment of Russia by the League Powers in a
number of instances as demonstrating the impossibility of an impartial
hearing, under League auspices, of any question involving Russia. The
resulting opinion, seven of the eleven judges who sat on the case con-
curring, stated the facts and concluded that, although in form the
Court was being asked to give an advisory opinion, nevertheless "an-
swering the question would be substantially equivalent to deciding the
the language of the CHARTER alone. For the meaning attributed to terms "legal," "non-
legal," see text discussion inftra at 1060.
20. Status of Eastern Carelia, P.C.I.J., Ser. B, No. 5 (Advisory Opinion, 1923); 1
HUDsoN, WORLD COURT REPoRTs (1934) 190.
1056 THE YALE LAW JOURNAL [Vol. 55 :1049

dispute between the parties,", and, Russia having declined to partici-

pate, "the Court, being a Court of Justice, cannot, even in giving ad-
visory opinions, depart from the essential rules guiding their activity
as a Court." "The Court therefore finds it impossible to give its opin-
ion on a dispute of this kind." 21 The Council, having received the
Court's reply, took note of it, and, after discussion, entered in its min-
utes a somewhat irritated justification of its own procedure.2" The
Eastern Carelians then retired from the international stage.
The Austro-German Customs Union case 21 presented issues notably
more serious than those in the Eastern Carelia,case. Article 88 of the
Versailles Treaty provided that "the independence of Austria is in-
alienable" other than with the consent of the Council of the League of
Nations and imposed upon Austria the undertaking "to abstain from
any act which might directly or indirectly or by any means whatever
compromise her independence." In 1922, in Protocols drafted at
Geneva in connection with loans to Austria by the victorious powers,
Austria reiterated its undertaking under Article 88. The 1922 Protocols
contained language construing the undertaking as not restricting Aus-
trian action in relation to "customs tariffs and commercial or financial
agreements," subject to the proviso that no State should be granted "a
special regime or exclusive advantages" calculated to threaten Austrian
independence. In 1931 Austria and Germany executed a .Protocol,
dated March 19, under which the two Governments agreed to negotiate
for a treaty "to assimilate the tariff and economic policies of their re-
spective countries." Under the Protocol, drafted with considerable
technical skill to avoid even the appearance of offending against Article
88 of the Versailles Treaty and the 1922 Geneva Protocols, the projected
treaty would, among other things, have prescribed the substantial
elimination of duties as between Germany and Austria, a uniform
tariff law for their dealings with other countries, and a proration of
tariff receipts between them. The League Council, acting with un-
wonted dispatch, heard French objections to the proposed union on

21. P.C.I.J., Ser. B, No. 5, at 28, 29 (Advisory Opinion, 1923); 1 HUDSON, WORLD
COURT REPORTS (1934) 190, 205. The question of the Court's privilege to refuse to give
an advisory opinion was complicated by a discrepancy between the French and English
texts (both official) of Article 14 of the COVENANT. The English text (see note 7 supra)
provided that the Court "may also give" advisory opinions on proper reference; the French
text provided that the Court "donnera aussi des avis consultatifs," which seemed to put
the Court under a duty to respond. For discussion see LA ROCUEBROCHARD, L'UNioN
DouAN IRE AUSTRo-ALLEMANDE (1934) 156 etseg. The Court, in its opinion, however, chose
not to notice this textual difficulty.
22. See (1922) LEAGUE OF NATIONS OFFICIAL JOURNAL 1337, 1502, cited at I HUDSON,
WORLD COURT REPORTS (1934) 190.
23. Customs Regime between Germany and Austria, Ser. A/B, No. 41 (Advisory
Opinion, 1931); 2 HUDSON, WORLD COURT REPORTS (1935) 711. LA ROCHEBROCUARD,
/c.cit. supra note 21, is a detailed study of the legal and political issues involved.
19461 THE INTERNATIONAL COURT OF JUSTICE 1057

May 18 and 19, and promptly referred the matter to the Court, with a
request that the Court act with all possible speed, for its opinion
whether the Austro-German Protocol was "compatible" vith Article
88 and the Geneva Protocol. Austria, meanwhile, agreed to take no
further action pending the Court's opinion. Represented before the
Court were the Governments of Austria, Czechoslovakia, France,
Germany and Italy. A preliminary question involved the appointment
of so-called ad hoc judges. Under the Court's Statute, " a State, party
before the Court and not having a judge of its own nationality on the
Court, has a right to have, a national appointed judge ad hoc. Both
Austria and Czechoslovakia, being unrepresented, requested such ap-
pointments. The Court, after argument, denied both requests, ten of
the fifteen judges concurring, on the ground that, Austria and Germany
being in the same interest, Austria was sufficiently represented by the
German judge, and Czechoslovakia, being in the same interest as
France and Italy, was sufficiently represented by the French and
Italian judges.2 5 The Court then heard oral argument between July 20
and August 5, written statements having been filed previously.
On September 3, before the Court's opinion had been announced,
the Foreign Ministers of Austria and Germany declared that the
March 19 Protocol and the idea of a Customs Union had been aban-
doned by the two Governments. On September 5 the Court, without
reference to the announced abandonment, delivered its opinion, widely
predicted in advance, that the Austro-German Protocol was, in the
wording of the Council's request, "incompatible" with the 1922 Geneva
Protocol, although "compatible" with Article 88 of the Versailles
Treaty. On September 7 the Council noted the Court's opinion and
disposed of the affair with a statement that, in view of the September 3
renunciations "there can no longer be any occasion for [the Council]
to proceed further with the consideration of this item of its agenda." '-
Getting "items" on and off the "agenda" appears to have been, in 1931
as in 1946, the principal preoccupation of international deliberative
bodies.
The Court's division over the point at issue could not, so far as the
Court's prestige was concerned, have been more unhappy. It appears
from the opinions that seven judges (including the German judge)
found that the Austro-German Protocol was "compatible" with both
Article 88 and the 1922 Protocol. Seven others (including the French

24. Article 31. Under the REvisED ST.TUTE, Art. 31, this provision is continued in
force without any change in substance.
25. Custom RWgime between Germany and Austria (Order re Appointment of Judges
ad loc) Ser. A/B, No. 41, at SS (1931); 2 HuDso,, WoRLD CouRT REonRS (1935) 711, 743.
26. (1931) LEAGUE OF NATioNS OFFicIL Joum,%L 2070, cited at 2 HUDso', Worm
CoURT REPORTS (1935) 711.
1058 THE YALE LAW JOURNAL [Vol. 55:1049

and Italian judges) found that it was "incompatible" with both. The
Brazilian judge alone saw that, while it was "compatible" with Article
88, it was "incompatible" with the 1922 Protocol. As odd man on an
otherwise evenly divided Court, his peculiar insight became the opinion
of the Court. This line-up was invitingly open to the charge, promptly
formulated, that the Court had split on nationalistic, political grounds
into a "Latin bloc" and a "Teutonic bloc." 21 The argument in defense
of the Court's integrity was more involved, although on the whole
more convincing."
The majority opinion was based on the conclusion that the arrange-
ment contemplated by the Austro-German Protocol (even though no
specific provision of the Protocol itself was tainted with "incompati-
bility") would constitute a "special regime" affording Germany in
relation to Austria "advantages" withheld from third Powers-thus a
regime forbidden by the language of the 1922 Protocol. The Italian
judge, contributing a notable dose of Latin realism, delivered a separate
concurring opinion, premised on the observation that "the answer de-
pends on considerations which are for the most part, if not entirely, of a
political and economic kind," 29 took judicial notice of'the movement
for political union between Germany and Austria, and dismissed with
polite skepticism the clauses in the March 19 Protocol designed to
safeguard Austrian "independence." The dissenting judges joined in
an opinion in which they professed to be unable to understand how the
March 19 Protocol could be "incompatible" as a whole without being
"incompatible" in any detail, found that the "provisions" of the Pro-
tocol did not purport in any way to subordinate Austria to German
control, and suggested that the majority had condemned not the pro-
posed regime itself, but assumed consequences which might result from
the establishment of that regime-thereby overstepping the limits of
the Court's function.3 °
The Careliaand Customs Union cases have been reviewed, not with

27. Cassidy, The Advisory Opinion Concerning the Austro-German Protocol for the
Establishmentof a Customs Union (1931) 20 GEo. L. J. 57, 69.
28. Mathews, Judicial Attitudes in the Customs-Union Case (1932) 30 Micil. L. REv.
699; Hudson, The World Court and the Austro-German Customs Rigime (1931) 17 A. B. A. J.
791; see, for further bibliographical references, 2 HUDSON, WORLD COURT REPORTS (1935)
712.
29. Ser. A/B, No. 41, at 68 (1931); 2 HUDSON, WORLD COURT REPORTS (1935) 711,
732.
30. As examples of the criticism heaped on the Court's head, see Borchard, The Cus.
toms Union Advisory Opinion (1931) 25 Am.J. INT. L. 711; Cassidy, op. cit. supra note 27
at 69: "Reactionary .... [against] the weight of the evidence . .. ,the prestige of the
World Court as an impartial medium has not been enhanced"; and, more mildly, Manning,
The Permanent Court and the Customs Union (1932) 9 N. Y. U. L. Q. REv. 339: "The Court,
as a Court, in effect contented itself in saying 'No' with observing that it was difficult indeed
to maintain that 'Yqs' would have been the proper answer."
19461 THE INTERNATIONAL COURT OF JUSTICE 1059

any idea of weighting a conclusion that the Court failed, either in those
cases or generally, but rather for the light they throw on the advisable
limits of an international court's jurisdiction, on the theoretical use-
fulness of such a court. We have noted that the Court's contentious
jurisdiction, dependent on the parties' willingness to gamble on judicial
issue, produced a routine crop of cases routinely decided and, without
exception, routinely disposed of by the parties in accordance with the
Court's mandate. 31 The same statement may be made concerning most
of the advisory opinions which the Court delivered.
The Careliacase, on the other hand, may be seen as a novel attempt
on the part of the League Council, on paper a supra-national body,
to accomplish an extension of the Court's compulsory jurisdiction by
inviting it to adjudicate the substance of a dispute between twro States,
only one of which accepted the adjudication-since it was clear at the
time when the Council referred the issue that Russia would not recog-
nize the Court's competence. And it was the Council's sense, after the
event, that the Court should have gone right ahead and adjudicated
no matter what the probable consequences might have been and
despite the fact that the Council, when the Court declined, could think
of nothing useful that the Council itself might undertake in the pre-
mises. In the Customs Union case the accused States willingly accepted
the Court's jurisdiction, although it is reasonable to infer that the 1931
ratio between French and German armament was relevant to such
unsovereign docility. Even in 1931, however, the political issue was
politically decided by politicians-the only way it could have been
decided-before the Court had even been given the opportunity to
pronounce on the legal issues in which the political ones had been
wrapped for transmission to the Hague.
The cases are cited, then, to the proposition that there are issues
which it is not healthy to bring before an international court-in 1920
or in 1930 or in 1950-because they escape or transcend judicial compe-
tence. "Adjudication" of such issues, however court-like the attendant
proceedings, will be fruitless and inconclusive at best, and at worst
prejudicial not only to the ideas of "law" and "court" but to the con-
tinuing and always delicately poised international ordeal of peace.
Such issues may be composed, and the composition will reflect the
current shift of power; they can be only exacerbated by being subjected
to a judicial weighing of rights which must, overtly at least, exclude all
counters except the words of treaties and the accepted propositions of
international law.
31. HuDsox, 595-7. The Court itself has no power to compel obedience to its judg-
ments. CHARTER,Art. 94, provides that members of the United Nations, parties to a case,
undertake to comply with the Cdurt's decision, and that, if one party fails so to comply,
the other party may bring the matter before the Security Council. Cov.n-,.r, Art. 13,
contained substantially similar provisions.
1060 THE YALE LAW JOURNAL [Vol. 55 :1049

Precisely this inquiry, whether there are issues suitable for interna-
tional arbitration or adjudication and'issues not suitable, has long
sparked controversy among theorists and publicists of international
law. The standard texts on international law have long been in re-
markable agreement that international arbitration or adjudication is
competent to dispose of only relatively minor differences between
States. 32 It has, however, been correctly pointed out that this is not
at all the sanre thing as saying that international law regulates only
minor matters-but rather amounts to saying that international
tribunals have been or will be, or ought to be, allowed to dispose only
of such matters. 3 The matters that tribunals will be allowed to settle
have been designated by the terms "legal" or "justiciable" as opposed
to the terms "non-legal," "political," "non-justiciable," which in this
context refer to disputes which have not been, or will not be, or should
not be, brought before international tribunals.
Difficulty has been found in formulating a workable test for dis-
tinguishing "justiciable" from "non-justiciable" issues. An early test,
now in disfavor, was based on the assumed incomplete nature of inter-
national law: "legal" disputes are those whose subject-matter is ade-
quately governed by existing rules of international law. Another formu-
lation, incorporated by way of reservation in many arbitration treaties,
was that "legal" disputes are those which do not affect the vital inter-
ests, honor or independence of a State. It is the current fashion to
define "legal" disputes as all those involving conflicts between opposing
sets of "legal rights"; all others--i.e., conflicts of "interests"-are
"non-legal" or "political." When analyzed, the foregoing definitions
turn out to be merely false fronts for the statement that a "legal" dis-
pute is one which the States involved are, for whatever reason, willing
to have arbitrated and various writers have vigorously and diligently
rung changes on the demonstration of such logical insufficiency.3 4
Some of these writers have, however, used the demonstration that no
one has ever been able to draw a satisfactory--i.e., rigid, invariant,
predictable--line between "legal" "justiciable" on the one hand and
"political" "non-justiciable" on the other to buttress the conclusion
that all disputes between States ought to be judicially determined and
resolved. This perilous jump merits -consideration.
The most convinced and effective advocate of a court of unlimited
jurisdiction has been Professor Hans Kelsen, who has clarified matters

32. For a comprehensive and brilliant discussion of the achievements and potentialities
of international arbitration, together with a careful analysis of the authorities, see LAUTrzp-
PACET, op. cit. supra note 6. Dr. Lauterpacht himself takes a critical view of asserted theo-
retical limitations and an expansive one of possible future developments.
33. KELSEN, PEACE THROUGn LAW (1944) 27 et seg. "
34. See generally LAUTERPACHT, op. cit. supra note 6, passim; BRIERLY, TEE LAW OF
NATIoNs (2d ed. 1936) 219 el seg.
19461 THE INTERNATIONAL COURT OF JUSTICE 1061

by offering a draft Covenant of a Permanent League for the Mainte-

nance of Peace.35 Central in this League would be a court, whose
membership would result from nominations submitted by the member
States but which actually would be determined within each State by
"the highest courts of justice, its legal faculties and schools of la,,"
and similar institutions. The court would be competent to decide any
dispute between member States submitted by any party to the dispute,
and any dispute between a member State and a non-member State,
provided the non-member State accepts the court's jurisdiction. In
reaching its decision the court would apply international law,-, includ-
ing the general principles of law recognized by civilized nations, and
would decide ex aequo et bono if the parties so agreed. The court also
would have the duty to decide whether the actions of any member
State violate the Covenant. The Council, with the Great Povers as
permanent members, would have the duty of taking any measures
necessary to assure execution of the court's orders and necessary eco-
nomic or military sanctions against a member whose actions had been
declared by the court to violate the Covenant.
The argumentation in favor of such an all-powerful and irresponsible
court is learned and ingenious, although it has the defect of being in
the form of a series of responses to assumed objections.? To the ob-
jection that an international court competent to decide any dispute
would be hamstrung in the absence of an international legislature to
set norms for the court's decisions, is opposed the proposition, assumed
as historical or anthropological fact, that courts have always preceded
legislatures in the organization of human society. To the objection
that international law in its present stage of development is incomplete,
fragmentary and, as a system, riddled with gaps, it is answered that no
system of law can ever be considered defective since it is axiomatic that
any act, not specifically forbidden, is permitted; thus the court can
always pronounce for or against any contention? To the objection

35. KELSE , op. cit. supranote 33, at 127 et seg.

36. KELSEN, LAw AND PEACE (1942); PEACE THROUGH LAW (1944) and his other
writings arguing that "the establishment of a court with compulsory jurisdiction is the first
and indispensable step to an effective reform of international relations" cited at note p. 14
of the last-mentioned work. Also Kelsen, The Old and the Ncw Lc.gue: Thc Coz=ant and
the Dumbarton Oaks Proposals(1945) 39 AA. J. Ixr. L. 45.
37. That this is true in a purely formal sense is of course beyond doubt. Quarre whether
it is a really helpful or responsive approach to the problem. Compare BriEPnL,op. cit.
supra note 34, at 56: "International law, like any other system of law, is, in a formal,
though of course not in any other, sense a 'perfect' system; it can provide a solution for any
issue submitted to a court, and it can do this because it accepts the practice by which the
judge is required to 'find' a rule of law which is applicable to the case before him." LAUTER-
PACHT, op. cit. supranote 6, at 134: "Notwithstanding the admitted peculiarities and com-
prehensiveness of its gaps, international law, like any other system of law, is complete from
the point of view of its adequacy to deal with any dispute brought before an international
1062 THE YALE LAW JOURNAL [Vol, 55: 1049

that certain classes of disputes are not susceptible of judicial determi-

nation and resolution-disputes variously referred to as "political,"
"non-legal," "non-justiciable"-is opposed a flat denial, on the ground
that any dispute can be reduced to terms of opposing sets of legal rights,
and a State in dispute with another State has only the choice of justify-
ing its position legally or of frankly taking an extra-legal stand, thus
impliedly admitting that right is on the other side. By way of illustrat-
ing the feasibility of an all-powerful court, reference is finally had to
the jurisdiction of the United States Supreme Court over disputes
between the several states, and the early case of Rhode Island v. Massa-
chusetts,3" in which a boundary dispute was adjudicated, is favorably
commented on.
The proponents of an international court of unlimited jurisdiction
have thus run up a neat, tidy, and orderly scaffolding of theory. It is
submitted, however, that their logic goes no more than skin deep and
that their conclusions are shored up by a series of assumptions which
are at best unprovable and at worst false. Thus, inherent in their rea-
soning is the premise that disputes within a national State are settled
within the framework of law and courts-at least so long as the parties
lack the strength to resort to civil war. Brief reflection will show how
vast is the area of dispute even within the State which is settled extra-
judicially or politically--currently, for one example, in the field of
labor relations. In this extra-judicial area decision is actually reached
between the contending groups; despite the elaborate structure of
legality, the organs of government, court and legislature, do little
more than transcribe dictation.
Governments govern and courts adjudicate, effectively, only where
disputes arise between groups none of which has power to threaten the
State, or where disputes arise between power groups on minor issues,
which both sides are willing to submit to the arbitrament of chance or
justice. The area within which effective government or adjudication
is possible is still vast, but it does not improve matters to pretend that
it is all-embracing or without limit. It is dangerous to believe that
"law" can do something it is not equipped to do, viz., make the less-
powerful prevail over the more-powerful on the ground that the less-
powerful is "right"-morally, economically, or traditionally-and the
more-powerful is "wrong." 11

judicial tribunal. At the same time . . . .like any other system of law, international law
contains gaps from the point of view of the approximation of its rules to the essential pur-
poses of international law and to the requirements of international justice. To disregard
this fact, in deference to a purely mechanical conception of the completeness of international
law, is to thwart the judicial activity of international tribunals in a manner contrary to the
spirit of international law."
38. 12 Pet. 657 (U. S. 1838).
39. Compare BRiERLY, op. cit. supra note 34, at 223-4: "... [Tlhere are also certain
1946] THE INTERNATIONAL COURT OF JUSTICE 1003

When disputes arise, not between groups within the State but be-
tween States themselves, the difficulties in the way of any effective
"government" or "adjudication" are immediately multiplied to some-
thing approaching impossibility. Even were we to assume as fact the
proposition that all disputes within the State are regulated by law,
the analogy between disputes within a State and disputes between
States is hazardous. But if we start with the contrary assumption, that
disputes between what we have loosely called "power-groups" will
be settled, whether within States or betveen States, extra-legally, we
must conclude that in the class of "disputes betw~een States" there will
be alarmingly little room for government and adjudication. As ithin
the national community, certain power groups in the international
community are predominantly strong and the weaker units subject to
their coercion. Internationally, as nationally, the matters subject to
effective adjudication will be those (a) involving Great Powers which
the Great Powers are willing to have adjudicated and (b) involving
Small Powers which the Small Powers are willing to have adjudicated
or which the Great Powers insist on having adjudicated.
Light is sought to be thrown on the practicability of "world govern-
ment," "world court," by analogy to the subjection in federal gov-
ernments of component "states" to central legislative and judicial
authority, the example of the United States being thought to cast a
particularly mellow glow. If in the past separate states, asserting sov-
ereignty, have combined and established a super-government and a
super-court into which the juice of individual sovereignties has been
drained, then what logical impossibility is there to the thing happening
again, and on a broader scale? " To an a priori argument an a priori

limitations on the potentialities of judicial procedure in general which it is well to bear in

mind. One is that a dispute does not necessarily receive its quietus because a court of law
may have pronounced upon it. ... This is true of Hampden's Case... and of the Dred
Scott Case .... . [Each of these cases had its sequel in a civil var which was fought in part
to determine afresh the very issues which the courts had decided.
"Further,it ought never to be forgotten that law is not merely a convenient device for
the settlement of disputes; it is not something that can be made an effective instrument at a
crisis and left out of account at other times; it is useful as a means of settlement only when,
and so far as, a society has accepted the rule of law as its way of life. . . . In fact the ex-
ample of the state . . . is discouraging to the vie%; that all disputes ought to or can be
settled on the basis of existing law, for international disputes find their nearest analogy not
in the disputes of individuals at all, but in a class of disputes which the practice of states
itself tends to treat by political rather than judicial methods. By their very nature they
are differences between large associated groups; and when such a group of parcons within
the state is discontented with its existing legal rights, a wise government does not merely
refer them to the courts of law; it considers the arguments for and against a change of the
law." See also BRMRLY, TaE Oumooa roR INTERN.MTO .AL LAW (1944) 118 el sc.
40. Professor Kelsen is not, of course, guilty of such vulgar simplification. ..... [The
examples of the United States of America and Switzerland are usually referred to in order
to show that the difficulties [of an international federal state] are not insuperable. But thece
1064 THE YALE LAW JOURNAL [Vol. 55 :1049

answer may be hazarded. That the thirteen original states could fuse
their individual sovereignties into a greater collective sovereignty
stands, not for the proposition that power can, and therefore should,
be subordinated to "law," but for this: that at the time the trick was
turned the thirteen "states" had ceased to be effective power-units
in a national community which had established itself in disregard of
"state" lines and "state" existence. Reading the history lesson this
way, we might hypothesize the subjection of existing national States
to super-government and super-court at a time when such States have
ceased to be significant power units and power has passed to other
groupings: economic cartels, labor unions, political parties, to mention
a few modem inventions which show possibilities of growth. Such a
development might well be an improvement on the existing order-as
the Federal Government in 1789 was an improvement on the Confed-
eration. But any such radical political reorganization will follow, and
not bring about, shifts in the power groupings; will be a result and not
a cause.
The function of courts is essentially conservative-to maintain, or
to settle incidental disputes within the framework of, a status quo
satisfactory to the majority or to a minority sufficiently strong to im-
pose its will on a disarmed majority. When the existing order is radi-
cally altered, courts go out of business for a time. Revolution and war
are not justiciable.
The idea of a big court is undoubtedly an attractive one. Professor
Kelsen and others, during the period 1940-5, have given it a theoretical
basis. In the drafting of the Court's new Statute, representatives of
many of the smaller nations were enthusiastically in favor of giving the
Court compulsory jurisdiction-not as sweeping perhaps as that of
Professor Kelsen's suggested court, but with the same ultimate end
in view. The Great Powers, particularly the United States and Russia,
were, however, adamant in opposition, and, as has been noted, no
significant changes were made in the jurisdictional provisions of the
Revised Statute except to cut down the scope of the Court's advisory
jurisdiction.
The limitation on the Court's advisory jurisdiction is of interest in
the light of the foregoing discussion. Under the original Statute and
the League Covenant this jurisdiction covered "any question" prop-
erly referred by the League. The Court's refusal in the Eastern Carelia

examples prove little ... ." KELSEN, PEACE THROUGn LAW (1944) 11. Professor Kelsen
refers to the historical-political relations and the common economic and political interests
uniting the peoples which were ultimately united in a Federal State as well as to the geo-
graphically contiguous territory involved, and continues: "To base the hope of the erection
of such a federal World State upon nothing more than the examples of the United States
and Switzerland is a dangerous illusion." Id. at 12. The lower the level of discussion, the
more attractive this analogy seems to become.
1946] THE INTERNATIONAL COURT OF JUSTICE 1065

case to pass on "any question" has been noted. The United Nations
Charter and the Revised Statute provide for reference to the Court
for its advisory opinion of "legal questions" only. The mere reference
of a question to the Court -will of course imply a determination by the
referring body that the question is a "legal" one. It is in the highest
degree unlikely, however, that the Court would consider itself bound
by such determination. Presumably an essential element of all advi-
sory opinions under the Revised Statute will be a finding by the Court
that a "legal" question has been asked. If the Court is content to
exercise a wise discretion, the "legal" question limitation will allow it
to keep as far out of politics as it may desire.
There seems to be no present disposition to refer to the Court any
of the ticklish questions which have arisen during the first few months
of the United Nations' activity, even though several of these-for
example, the effect of the Charter provisions giving the veto to the
Great Power members of the Security Council--could easily have been
cast as "legal questions" and referred to the Court.4 ' Presumably, so
long as the Great Powers remain split among themselves, the Court
will not be invited to practise the art of constitutional interpretation
over the ambiguous phrases of the Charter.
There remains much useful work for the Court to do. The prestige
which the Court undoubtedly won between 1920 and 1940 should as-
sure the appearance on its docket of a steady flow of cases susceptible
of judicial determination.4 2 The United Nations Charter provides
that its subsidiary organs-such as the Economic and Social Council-
and specialized agencies may refer to the Court "legal questions arising
within the scope of their activities." 43 Direct access to the Court on
the part of such bodies is an innovation which should be useful.
Further, the Court is the obvious tribunal before which to bring dis-

41. As another example of what might have been cast as a "legal question," cee the
resolution on Spain introduced in the Security Council on April 18, 1946, by the Australian
delegate, N. Y. Times, April 19, 1946, p. 12, cols. 4-5. That resolution set three question,
for inquiry, of which the first was: "Is the Spanish question one essentially vithin the jur-
diction of Spain?" See Nationality Decrees Issued in Tunis and Morocco, P.C.I.J., Sar. B,
No. 4 (Advisory Opinion, 1923); 1 HuDsOm, WORLD COURT RErORs (1934) 143 for a case
in which the League Council referred to the Court the question whether a dispute between
England and France arising out of action taken in Tunis and Morocco (French protectorates)
was "by international law solely a matter of domestic jurisdiction."
42. Two cases, one between Belgium and Bulgaria and one between Liechtenstein and
Hungary, were pending before the Court at the outbreak of the var. The case between
Belgium and Bulgaria has been discontinued by agreement of the parties; no steps have
been taken in the Liechtenstein-Hungary case. Hudson, The Twenly-fourls Year of Ml~e
World Court (1946) 40 Am. J. INT. L. 1, 2. The first new case to be submitted to the recon-
stituted Court may be a 75-year old dispute between Great Britain and Guatemala, who:z
adjudication by the Court has been proposed by Great Britain. See Kunz, Gwlatcmald vs.
Great Britain: In re Belice (1946) 40 Am. J. INT. L. 383.
43. CHARTER, Art. 96(2).
1066 THE YALE LAW JOURNAL [Vol. 55: 1049

putes between the personnel of international organizations and their

employers. The Court could appropriately be called upon to resolve
difficulties of interpretation and disputes as to rights arising under the
increasing number of multi-national treaties, such as the Convention
on International Civil Aviation, 4 or the complex instruments evidenc-
ing international loan agreements.
Particularly in the field of trade relations an expansion of the Court's
jurisdiction would be valuable. These relations are continuous, com-
plex, a fruitful source of dispute, and are nevertheless generally carried
on at a low level of political pressure. Individuals and their particular
transactions may best be left as now to the laws and courts of one or
other of the States under whose control the transactions are engaged
in, and it is not believed that any form of appellate jurisdiction over
national courts is advisable or, in any case, within the realm of possi-
bility. If, however, the contemplated International Trade Organization
is established on a permanent basis, an appropriate instrument will be
available for channeling to the Court questions relating to the regula-
tion of international trade, and, further, the Court might well be
empowered to determine disputes arising under the many reciprocal
trade treaties now in existence. International communications and
transportation, which will undoubtedly be carried out under increasing
international supervision, are particular fields in which a greater use
than in the past might well be made of the Court's facilities.
The new Court may be expected to continue the contribution so well
begun by its predecessor; the clarification of thought and principle
which results from impartial investigation of particular situations is
far from being an unimportant or ignoble task, and a hard case well
decided is always a landmark to the future. The principal thing is for
the Court to preserve its virtue from the insistent embraces of its own
most ardent followers.

44. Article 84 of the Convention, reprinted in (1945) 39 A,%i. J. INT. L. (Supp.) 111
(concluded at Chicajo in December, 1944) makes provision for possible appeals to the Court
from decisions of the Council of the International Civil Aviation Organization with reference
to disputes relating to the interpretation or application of the Convention.