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the council of the organization or by both. Since these organs are composed of the representatives of the member-states appointed by the governments concerned, these governments have a considerable influence on the composition of the court, especially if the organs of the security organization have to elect the judges from a list of candidates nominated directly or indirectly by the governments of the member states. If, in order to achieve the highest possible degree of independence for the judges, this influence is to be eliminated as far as possible, a procedure may be adopted in which the decisive function within the process of the appointment of the judges is not conferred on the governments of the states but on their supreme courts, law schools, or international scientific organizations for international law and the like.10 For the same purpose, the judges should be elected for life or until they reach a certain age limit but not for a limited period of time so that the question of a possible re-election does not arise." Only the professional and moral qualification of the candidate should be required. The president of the court may be elected by its members or this office may be filled by rotation.12
As to the procedure of the court, it stands to reason that it must adopt its decision by majority vote.13 Collective security is guaranteed most effectively if its jurisdiction is compulsory.14 That it is compulsory means that if one party to a dispute submits the case to the court the other party is obliged to recognize the court's jurisdiction, even if there is no previous agreement by the parties to the dispute concerning the jurisdiction of the court in this case. The constituent treaty may even authorize the court to proceed under certain circumstances and with respect to certain matters ex officio, on its own initiative without its jurisdiction being invoked by any party. The court should be open not only to states and international organizations but also to private individuals, not only as plaintiffs in case of a violation of their rights established by treaties, but also as defendants especially if they are accused of having committed punishable violation of international law; that is to say, the court should have criminal jurisdiction.15
Either the treaty constituting an international security organization or the statute of its permanent court may stipulate that in settling a dispute brought before it, this court must apply the rules of existing international law unless the parties to the dispute agree upon the application of principles of justice or equity. By such an agreement, the tribunal is authorized to create within its discretion new law for the case at hand.16 However, the constituent treaty or the statute of the court may distinguish two categories of disputes namely, legal and political disputes—and provide that, with
out regard to the wishes of the parties, legal disputes shall be settled in accordance with positive law and political disputes in accordance with justice or equity.17
There are two ways to define the concept of legal disputes. One is the general definition adopted by the so-called Locarno Treatiesthat is, the treaties of conciliation and arbitration signed by Germany on the one hand and by Belgium, Czechoslovakia, France and Poland on the other, in London on 1 December 1925. In Article 1 of these treaties, legal disputes are defined as disputes with regard to which the parties are in conflict as to their respective rights. This formula is not quite satisfactory, because it refers only to "rights," and "rights” may or may not be "legal” rights, and especially because it does not refer to legal obligations which are mainly involved. One state has a right only if the other has a corresponding obligation; and there is a dispute only if one claims to have a right and the other denies being under a corresponding obligation. The legal character of a dispute depends on the attitude of the parties: whether one party justifies its claim and the other party rejects this claim by referring to existing international law, which implies that the parties agree to have their dispute settled by the application of existing international law. The other way consists in enumerating certain categories of disputesnamely, disputes concerning the interpretation of a treaty; any question of international law; the existence of any fact which if established would constitute a breach of an international obligation; the nature or extent of the reparation to be made for the breach of an international obligation. This enumerative definition is adopted in Article 13, paragraph 2, of the Covenant of the League of Nations and in Article 36, paragraph 2, of the Statute of the International Court of Justice.18 The enumeration is, logically, very problematical, since one of the enumerated matters, "any question of international law," covers the three others. Besides, the legal character of a dispute does not depend on its subject matter but on the norms to be applied to it. It is legal if it is to be settled by the application of the rules of existing law. It is not legal (i. e., political) if it is to be settled by the application of other principles, such as justice or equity, or if, as a consequence of the attitude of the parties, it is not to be settled in a peaceful way at all. The political question as to whether or not a dispute should be settled as a legal dispute—that is, by the application of existing international law-must not be confused with the legal question as to whether or not a dispute can be settled by the application of existing international law—that is, whether a dispute is justiciable or not justiciable. It has been pointed out in a previous connection 10 that there are no disputes which, by their very nature, are not justici
able that is to say, which, as a consequence of the subject matter to which they refer, cannot be settled by the application of existing law because these subject matters are not regulated by the existing law or, what amounts to the same thing, because there are gaps in the existing law. It has been shown that there is no objective criterion at the basis of the distinction between legal and political, justiciable and non-justiciable disputes, and that the distinction between disputes which are to be settled in accordance with existing law and disputes which are to be settled in accordance with justice or equity—that is, in accordance with new law to be created by the court for the concrete case can be justified only if the application of the existing law, although legally possible, is, according to the opinion of the parties concerned or the competent tribunal, politically not satisfactory; and that the flexibility of the legal system, which is evidently the purpose of such a distinction, can be achieved only at the expense of the security to be guaranteed by it.
The doctrine that there are international conflicts which, by their very nature, cannot be settled by judicial means has recently been presented in a new version. There are, this new version asserts, conflicts of such a nature that “they will generally be not even formulated in legal terms,” 20 that is to say, in terms of concrete obligations and rights, and hence they will not be settled by international tribunals because a tribunal can settle a conflict only by deciding the question of whether or not a definite state has a concrete obligation and, consequently, whether or not another state has the corresponding right. Such "unformulated” conflicts are those which stand in relation to a general “tension” between two states, the issue of which is "the overall distribution of power” between them, the opposition between “the maintenance of the status quo and its overthrow.” The situation which existed in the relation between Germany and Czechoslovakia in 1938 is an example of such a "tension.” The real issue of the conflict between these two states was not sovereignty over the Sudetenland but Hitler's claim to the military and political domination of Central Europe.
The conflicts in question are "unformulated" not because they cannot be formulated at all-in the example just given the "unformulated” conflict is precisely formulated—but because they cannot be formulated in legal terms. This simply means that a state which intends to overthrow the status quo of the distribution of power by extending its control over territories legally under the sovereignty of other states, or over an entire continent, or even over the whole world is not in a position to present its claim in conformity with existing international law. If such a conflict were subjected to a judicial
procedure, the tribunal applying the existing law could come to no other conclusion but to reject the claim and to condemn any attempt to realize it by force as a violation of international law. This is the reason why a state will never submit such a claim to a judicial procedure. This is self-evident. But the statement that such “unformulated conflicts,” the issue of which is a “tension”—that is, the “political" conflicts of the new doctrine“cannot be settled by judicial means,” i. e., by the application of existing law, is incorrect if it means more than the truism that if there is no court with compulsory jurisdiction such conflicts will actually not be settled by judicial means. It is just as incorrect as the analogous statement concerning political disputes within the meaning of the old doctrine. From a scientific point of view, the only statement that can be made with respect to "tension" conflicts is exactly the same as that which can be made with respect to political conflicts of the old doctrine. This is the statement that a judicial settlement of such conflicts, although legally possible, is politically not satisfactory to the state whose claim to overthrow the status quo of distribution of power creates the "tension."
The “tension" theory of political conflicts does not contribute a new aspect to the problem of judicial settlement. It may be that a state which wishes to overthrow the existing status quo of the distribution of power will refuse to submit the “unformulated” conflict even to an international agency competent to apply principles other than those of existing international law, principles of justice or equity, because the state concerned cannot assume that its claim is justifiable even according to these principles, just as a band of gangsters who want to rob a bank will not "formulate the conflict which exists between their interest and that of the bank and hence will not submit it to a tribunal of law or equity but will simply try to get what they want by force. Just as the function of a national legal order is to prevent the crime and, if this is not possible, to punish the criminals, the very purpose of an international security organization is to prevent a state which intends to overthrow the status quo by force from realizing its intention and, if prevention is not possible, to react against it by enforcement measures effective enough to restore the law. The “tension" doctrine of political conflicts may be correct as a mere description of international relations as they actually exist, but it is not correct as a justification of the thesis that these conflicts are not justiciable.
If an international dispute is settled by the decision of an international agency binding upon the parties, the latter are obliged
out the decision. If, in violation of its obligation, one party within an international security organization does not comply with
the decision, the enforcement of the decision should not be left to the other party but should be a function of the organization itself performed by its executive organ. This may be the same organ as the one which has settled the dispute by its decision so that both functions: the decision by which the dispute is settled and the enforcement of this decision, are conferred upon one and the same organ of the organization, composed of representatives of the members. If, however, the dispute must be settled in conformity with existing law, the competent organ should have the character of a tribunal. An agency composed of representatives of states and not of independent judges always has the tendency to settle conflicts in accordance with political convenience rather than by applying the rules of existing law. If a dispute is settled by the court of an international security organization, the judgment may be enforced against the recalcitrant party by the executive agency of the organization on the request of the other party or of the court. Since non-compliance with the decision of the court is a violation of the constituent treaty, the action taken for the purpose of enforcing the decision has the character of a sanction. On the other hand, all enforcement measures of an international security organization, especially those involving the use of armed force, should, as a rule, be taken only as the execution of a judicial decision—that is, only as a reaction against a violation of the law ascertained in an objective and impartial procedure. The executive organ of the security organization should, as a rule, act only as the sheriff of the court.21 The usual objection to this suggestion, that if enforcement measures are to be preceded by a judicial procedure they may be too late to restore the law, especially in case of an armed attack, has been discussed in a previous chapter. 22
NOTES 1. Cf. pp. 15 ff.
2. Article 14 of the Treaty signed by Germany and Switzerland at Berne on 3 December 1921 is typical: “The contracting parties shall appoint one member each of their own choice, and nominate three other members by mutual agreement. These three members shall not be nationals of the contracting parties, nor shall they be domiciled on their territory, nor employed in their service. The contracting parties shall by mutual agreement elect the president from among these three members."
3. Article 4, paragraph 5, of the Covenant of the League of Nations stipulated : “Any Member of the League not represented on the Council shall be invited to send a Representative to sit as a member at any meeting of the Council during the consideration of matters specially affecting the interests of that Member of the League."
Article 32 of the Charter of the United Nations provides : “Any Member of the United Nations which is not a member of the Security Council or any state which is not a Member of the United Nations, if it is a party to a dispute under