Lien, Arnold J.

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Washington University St. Louis: Open Scholarship

Washington University Law Review Volume 20 Issue 2 1935 Review of “The Development of International Law by the Permanent Court of International Justice,” By Hugh Lauterpacht Arnold J. Lien Washington University in St. Louis Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview  Part of the Courts Commons Recommended Citation Arnold J. Lien, Review of “The Development of International Law by the Permanent Court of International Justice,” By Hugh Lauterpacht, 20 ST. LOUIS L. REV. 194 (1935). Available at: https://openscholarship.wustl.edu/law_lawreview/vol20/iss2/6 This Book Review is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. ST. LOUIS LAW REVIEWWillis deals with the question of administrative rule making unchecked byjudicial review, which has aroused such a furore in England in recentyears, with Lord Hewart leading the attack in "The New Despotism." Thebureaucracy has received more or less a clean bill of health from theCommittee on Ministers' Powers, which reported in 1932; but Mr. Willisis not impressed with the utility of the somewhat strengthened judicialreview which the committee recommends. Determination of administrativejurisdiction by suitable administrative tribunals holds for him no moreterrors than similar determination of their own jurisdiction by the courts.His scholarly survey of the legislation and decisions bearing upon thequestion reveals how deep-seated is the need and how numerous are theoccasions for administrative discretion in rule making no less than in otherdirections.After all the general studies and surveys of administrative control havebeen taken into account, there will remain a need for intensive studies ofthe functioning of particular administrative agencies. There have been afew such studies, but no preceding one has been as ambitious as ProfessorSharfman's projected four-volue work on the Interstate Commerce Com-mission, of which the first two volumes have appeared. The InterstateCommerce Commission is of all American administrative agencies the onewith the longest and most honorable history and with the largest aggregateof powers. Again it is not possible in a review such as this to go intodetails regarding Professor Sharfman's treatment of his subject. Sufficeit to say that on the legal side his survey of the powers of the Commissionand its relation to the courts leaves little to be desired, while his estimateof the usefulness of the Commission as a device for controlling the trans-portation industry is enlightened by the equipment which he brings to hisstudy in his capacity of economist. The possibilities of bureaucratic con-trol of private enterprise are nowhere better revealed than in these twovolumes.RALPH F. FUCHS.Washington University School of Law.THE DEVELOPMENT OF INTERNATIONAL LAW BY THE PERMANENT COURTOF INTERNATIONAL JUSTICE, by Hugh Lauterpacht. New York: Longmans,Green and Co., 1934, pp. IX, 112.This volume consists of a series of lectures delivered at the GraduateInstitute of International Studies at Geneva. It is a significant contribu-tion based upon an exhaustive study of the judgments and advisory opinionsof the Permanent Court of International Justice. With the major aim ofthe Court as one of several instruments for the maintenance of peace, theauthor is concerned only incidentally, in part because there is no exact wayof even estimating the extent to which the Court has been successful inperforming this function. He concentrates on the second basic function ofthe Court and attempts to measure and evaluate the work of the Court inthe development of international law.Washington University Open ScholarshipBOOK REVIEWSWhile the work of the Court thus far has consisted to a very large ex-tent of the interpretation of treaties and other international documentsand the international commitments upon which its own jurisdiction is based,it does not follow that the Court has had no occasion to concern itself withthe principles of general and customary international law, for in the searchfor dependable guides to the meaning of treaty stipulations and the inten-tion of the parties to international agreements, these principles are amongthe most potent of sources. In using them, the Court has naturally prac-ticed a degree of caution commensurate with the weightiness of the casesthat come before it and the voluntary character of its jurisdiction in con-troversies between sovereign states.As the judges of the Court apply these general principles and maxims,it is as true of them as it is of municipal judges that "It is not theirfunction deliberately to change the law so as to make it conform with theirown views of justice and expediency. This does not mean that they do notin fact shape or even alter the law. But they do it without admitting it;they do it while guided at the same time by existing law; they do it whileremembering that stability and certainty are no less the soul of law thanjustice; they do it, in a word, with caution.""Judicial legislation is, ultimately, not a change of the law, but thefulfillment of its purpose." The Permanent Court of International Justice,as does every municipal court in the sphere of municipal law, interpretsthe law to make it effective---"to secure a full degree of effectiveness ofinternational law, and in particular of the obligations undertaken by theparties in treaties."The Court from the outset has made clear that it will not permit itselfto be held in bondage by technicalities. Here is its own language from theMavrommatis Palestine Concession case: "The Court, whose jurisdiction isinternational, is not bound to attach to matters of form the same degree ofimportance which they might possess in municipal law." In the absence ofprocedural provisions in its own statute and rules, the Court regarded itself"at liberty to adopt the principle which it considers best calculated toensure the administration of justice, most suited to procedure before aninternational tribunal, and most in conformity with the fundamental prin-ciples of international law.""If any lesson can be derived from the experience of the last twelveyears," writes the author, "then it is this: that Governments cannot relyon the Court that it will countenance evasion from the vincula, juris intowhich they have entered."The Court adjudicates disputes between states, but the law which itapplies is law to which the states themselves are parties, either expresslyor tacitly, and, consequently, no encroachment on the sovereignty of thestate is involved. The Court's language in the Wimbledon case is clear onthis point: "The Court declines to see in the conclusion of any Treaty bywhich a State undertakes to perform or refrain from performing a par-ticular act an abandonment of its sovereignty. No doubt any conventioncreating an obligation of this kind places a restriction upon the exerciseof the sovereign rights of the State, in the sense that it requires themhttps://openscholarship.wustl.edu/law_lawreview/vol20/iss2/6ST. LOUIS LAW REVIEWto be exercised in a certain way. But the right of entering into internationalengagements is an attribute of State sovereignty." And similarly in theLotus case: "International law governs relations between independentStates. The rules of law binding upon States therefore emanate from theirown free will as expressed in conventions or by usages generally acceptedas expressing principles of law." The author makes this enlightening com-ment: "The curbing of some cherished claims of State sovereignty is theresult of submission to jurisdiction, and not of any usurpation of powerson the part of the Court."Professor Lauterpacht has produced a scholarly and readable volumewhich merits the attention of all who have either a general or a specialinterest in international law or the World Court-or, for that matter, inthe general problem of judicial legislation.Washington University. ARNOLD J. LIEN.COMO S HIzo LA CONSTITUTION DE; CUBA, by Antonio Bravo V Corrnaso.La Habana: Rambla, Bouza y Ca., 1928. 113 pp.BASES PARA UNA CONSTITUTION FUNCTIONAL, by Oscar Alvarez Andrews.Santiago de Chile: The Author, 1932. 125 pp.These two little works on constitution making are about as different asthey well could be. The former, by a member of the Cuban senate, ispatriotic and historical in character. It is very clearly and simply put, sothat even high school students could grasp its contents. After a brief sum-mary of the achievement of the independence of Cuba, and an incidentalcriticism of the United States for making the treaty of liberation withoutconsulting Cuba on terms of equality (p. 9), the author proceeds to analyzethe form of government and to give a circumstantial account of the debatesand decisions of the constituent assembly (of which he was secretary) inframing the constitution. This account is very interesting and provides avery good picture of how such assemblies work. Of course the main pro-visions of the constitution are explained. In discussing the Platt Amend-ment and intervention some further repressed antagonisms against theUnited States are mildly displayed.Alvarez' book is concerned with what should be rather than with whatis in the Chilean constitution. He takes a decidedly liberal, although not adoctrinaire, viewpoint, and treats his subject matter from the standpointsof (1) fundamental principles, (2) functional organization, (3) effectivepublic opinion. He is well read in the recent European literature of func-tional democratic government. The book is really a handbook for the stu-dent of constitution making and for the more intelligent type of citizen andis constructed largely in outline with terse, pointed definitions and state-ments of principles. It should serve its function well. We have nothingjust like it in this country and the work most similar to it in Great Britainis Sidney and Beatrice Webb's Socizlist Constitution for Great Britain-although the two books are by no means wholly comparable. Alvarez' bookis much more terse and provocative. He is not content merely with a state-ment of the principles of government which a constitution should embody.Washington University Open Scholarship

Review of “The Development of International Law by the Permanent Court of International Justice,” By Hugh Lauterpacht

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Review of “The Development of International Law by the Permanent Court of International Justice,” By Hugh Lauterpacht

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