THE ADMINISTRATION OF JUSTICE

Philip C. Jessup

Former Member, International Court of Justice The Hague, the Netherlands

There is no worldwide administration of justice. In the several States of the world, justice is well- or ill-administered by national authorities. Injustice may be administered as a matter of national policy, as in South Africa and Greece. Justice may be ill-administered through inefficiencies or inabilities.

One would like to think that the United Nations could be the international administrator of justice. But the United Nations has only the powers that the Member States give to it. The General Assembly may condemn in many resolutions, but unhappily for the concept of world law, the resolutions are, by and large, merely exhortations. Who administers justice to the Namibians, to the Ibos, to the Arab refugees, to Greek prisoners?

There are, nevertheless, some standards and some devices for the interna- tional administration of justice.

* * * One of the most firmly established rules of international law places on

States the responsibility for a denial of justice to an alien. Hundreds of de- cisions of international tribunals have provided an abundant jurisprudence on the subject, but the definition of “denial of justice,” like the definition of many other legal precepts-in both national and international law-is enshrouded in juristic disagreements. This is not the place to pronounce in favor of one or another view. Some of the opinions attached to the recent judgment of the International Court of Justice in the Barcelona Traction case have commented on the problem, although the Court itself did not find it necessary to reach a decision on this point. Suffice it to say that some of the difficulties with the rule have arisen from abuses of the right of diplomatic protection in eras that have long since been superseded in the practice of States.

The rule forbidding denials of justice is significant in our present context because it reveals a consensus in the international community that the admin- istration of justice is of international concern. When charged with a denial of justice, States have never been able to seek refuge in the plea of domestic jurisdiction.

In the present stage of interstatal legal development, international law is concerned with the responsibility of States to aliens, that is, to citizens of other States. The world is still groping in the fog of outmoded sovereignty for accepted legal rules protecting that much broader range we call “human rights.” Only among 16 of the States of the European Community, under the Rome Convention of 1950, establishing the European Human Rights Commis- sion and the European Court of Human Rights, has there been full acceptance of the legal principle that a State may be held to international accountability for denying justice to its own citizens. Here, in microcosm, is indeed the international administration of justice. We note like promise of progress in the Americas.

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An optimistic view hails the adoption in many national constitutions of principles embodied in the Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948. It may be true also that that Declaration inspired the Rome Convention of 1950. But incorporation in national laws or constitutions throws us back on national administration of justice, which may vary from State to State, from government to government, and from year to year.

In 1966, the General Assembly approved two Draft Covenants of Human Rights that are designed to make observance of such rights matters of interna- tional obligation. By June 1969, only 36 States had signed the two Covenants and no State had ratified either.

Numerous resolutions of organs of the United Nations have denounced the failure of the Union of South Africa to administer to the people of Namibia, for whose welfare South Africa accepted responsibility under a League of Nations Mandate. Greece hastily withdrew from the Council of Europe to forfend a widely supported move for its expulsion because of the denial of justice to many of its citizens.

Yet there is still a double standard. There is the international law standard that sets minimum requirements for the treatment of aliens in their persons and in their property. There is the test widely advocated, especially by the Latin American States, that would measure the propriety of treatment of aliens by equality with the treatment of nationals, regardless of the way in which nationals are treated. But the advocates of this latter testdeveloped as a defense against strong powers like the United States 50 and more years ago-would scarcely be accepted by, let us say, Mexico, as an appropriate gauge of the way Mexican citizens might be treated today in Greece or Rhodesia.

There are those in and out of South Africa who attempt to justify apart- heid, but in only a few cases is the defense based on an assertion that the imposition of apartheid constitutes justice for nonwhite majorities. Excuses other than administration of justice were also advanced some three centuries ago to justify the obliteration of the great Inca civilization, just as in succeeding decades other indigenous peoples were sacrificed to the rapacity of “civilized” colonizers. How sardonic to express one’s abhorrence for pagan practices of human sacrifice by sacrificing the practitioners!

All in all, it is a real achievement of human progress that international law has imposed and imposes responsibility for denial of justice to aliens, even though it has still fallen short of the goal of protecting all human rights. Some administration of justice is then required. By whom is this requisite justice administered?

It is (or is to be) administered by national authorities, in the first place. If justice is denied at that level, other States or the international organization of the United Nations or of regional associations may seek amends. Here one can note numerous historical instances of so-called humanitarian inter- vention. In response to such pressure, there may or may not be a rectification or compensation. If issues of fact or law are controverted, there may be sub- mission to an international conciliator or to a tribunal, which, in its highest form, means the International Court of Justice,

For whose benefit is this requisite justice administered? When the international practice developed, a century and more ago, cases

involved aliens who lived abroad and were operating ranches or mines or other

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enterprises; perhaps claims were advanced for their widows or surviving children. But in this materialistic world, claims were equally made for mate- rial loss by destruction or seizure of property.

Property, however, may be held either by individuals or by companies whose corporate structure throws a blanket of anonymity over the human beings who are its owners or operators. From the early days of the English common law, a greatmaster of the law, Coke, declared-quite rightly-that “corporations have no souls.” From this proposition it might be said to follow that corporations have no “human right,” but international law and practice have maintained the rule that they are entitled to be beneficiaries of a system of administration of justice in countries other than their own. Modern developments in acknowledging human rights even in one’s own State con- centrate on individual human beings, not on corporate agglomerations.

Intergovernmental procedures are slow and cumbersome. Man is an im- patient animal, and the corporate person is often in an even greater hurry. So new devices are developed. Neither individuals nor the largest and most powerful companies have traditionally been admitted to stand on an equal legal plane with even minuscule States. But despite denunciations-often rather reckless but not infrequently justified-of “exploitation,” economic progress throughout the world, both in old countries and in new, requires the utilization of skills, techniques, and resources. When such aids are utilized by States, disagreements are likely to arise just as they arise in relations between companies in the domestic national sphere. If collaboration is to con- tinue, disagreements must be settled. Since 1924, the International Chamber of Commerce has maintained a Court of Arbitration in Paris; that Court has dealt with more than 2,000 disputes, many between companies and governments In 1965, the International Bank for Reconstruction and Development sub- mitted to Governments a Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Some 47 States, including the United States and the United Kingdom, have become parties to this Convention, and a dozen others have signed. But even at this level, the new organs for adjustment and settlement can act only when the parties to the dispute consent.

This is the key to the weakness of the whole international system for the administration of justice through courts. I have often been asked why the International Court of Justice has done nothing to settle the disputes between Israel and the Arab States or to end the war in Vietnam. The Court is powerless unless and until the States parties to a dispute or controversy agree to submit to its jurisdiction. The International Court of Justice is the principal judicial organ of the United Nations; the Security Council is the principal political organ. But the Security Council has no power to order States to submit a controversy to the Court; the Security Council can only recommend that they submit-and it has rarely done even that.

On the other hand, there is a way in which the International Court of Justice can be authorized to pronounce on the legal aspects of international disputes. Under the United Nations Charter, the principal organs of the United Nations and the various agencies that have been so authorized may ask the Court to render an advisory opinion. The advisory-opinion device was developed in the predecessor to the International Court of Justice, namely the Permanent Court of International Justice, which was established in 1921 as a part of the general peace organization of the League of Nations. Some then argued that it was not a judicial function to render opinions that were merely

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advisory and not binding. But it was pointed out that in the legal system of many States of the world, and in some of the states of the United States, courts are authorized to deliver advisory opinions.

As operated in the League of Nations system, the advisory opinions were very useful. The peace treaties at the end of World War I had introduced many shifts in boundaries and many provisions to guard the rights of minori- ties, especially where national boundaries were changed. Disputes over the interpretation of the treaty provisions were inevitable. There was special machinery for administering justice in certain cases, but when the disputes threatened the peaceful relations between two States, resort was often had to the Council of the League. The Council developed the useful procedure (which unfortunately has not been adopted by the Security Council of the United Nations) of appointing a person known as a reporter who was asked to look into the question, to talk with the parties, and to make recommenda- tions to the Council. He was in part fact finder, in part a mediator or conciliator. It often happened that the reporter would say to the Council: “There is involved in this dispute a variety of elements of which one is the interpretation of a few words in Article XXX of the Treaty of Peace. If you could ask the Permanent Court of International Justice to render an advisory opinion interpreting those words, it would greatly help me in bringing the matter to a solution. Meanwhile, during the time required for the Court’s deliberation, I will have time to explore and seek to adjust certain other aspects of the dispute.”

The Council of the League asked the Permanent Court of International Justice for 27 advisory opinions between 1922 and the outbreak of World War 11, in 1939. The Assembly of the League of Nations also had the power to ask for advisory opinions, but although over the years it came to acquire more and more political influence, it never asked for a single advisory opinion. How different is the situation in the United Nations! The General Assembly has asked for nine advisory opinions and the Security Council has never asked for one. The requests of the General Assembly have dealt prin- cipally with what might be called constitutional questions concerning the operation of the United Nations and its organs, although some have been on the fringes at least of attempts to settle important international political ques- tions.

When it is said that the international system for the administration of justice is so weak that it is impossible to secure a judicial ruling on such legal problems as the right of access to the Gulf of Aqaba or the rights of passage through the Suez Canal, the broad assertion is false. The Security Council or the General Assembly could have submitted such questions to the Interna- tional Court of Justice for advisory opinions. They can still do so. The difficulty lies not in the unavailability of judicial machinery for the administra- tion of justice but in the unwillingness of governments to use the machinery. Too many governments, partisan to one side of a dispute or another, are afraid of obtaining justice that may not be to the liking of one or the other party to a controversy. Better, it seems to them, to seek compromise and delay in the Micawberish hope that something favorable may turn up. This is also the principal reason why so few cases are submitted by States for actual decision by the International Court of Justice.

But it is said that advisory opinions are not binding and that they will therefore be disregarded or repudiated. The first part of the statement is

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correct; the second part is not proved by experience. In the days of the League of Nations, Governments whose positions were not supported by ad- visory opinions of the Permanent Court of International Justice grumbled and spluttered, but generally the opinions, supported by the influence of the League Council, served as the basis for final action in settling the matter.

In the history of the United Nations one finds clear examples both ways. When the General Assembly asked, in effect, whether the Charter means what it says in Article l7-"The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly''-the International Court of Justice replied, yes, States are obligated to pay the amount appor- tioned by the General Assembly. In that situation, two important States, the Soviet Union and France, refused to admit that the Court was correct and continued to refuse to pay amounts assessed by the General Assembly. How- ever, the resulting situation, in terms of the financial difficulties of the United Nations, was at least no worse than it was before the Court gave its opinions, and some members of the United Nations bowed to the correctness of the Court's opinion.

Probably the most successful international administration of justice has been achieved in the limited but highly important area of labor conditions. The Constitution of the International Labor Organization formed part of the Treaty of Versailles at the end of World War I. Its preamble recites:

Whereas the League of Nations has for its object the estab- lishment of universal peace, and such a peace can be estab- lished only if it is based on social justice;

And whereas conditions of labour exist involving such in- justice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled . . . Whereas also the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other na- tions which desire to improve the conditions in their own countries . . .

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Article 411 (later renumbered Article 26) of the Constitution is a broad recognition of the legal interest which all States, Members of the Organization, have in the maintenance of labor standards and in the welfare of workers. The Article provides:

I. Any of the Members shall have the right to file a com- plaint with the International Labour Office if it is not satis- fied that any other Member is securing the effective observ- ance of any Convention which both have ratified in accord- ance with the foregoing articles.

Article 423 of the Constitution provides:

I. Any question or dispute relating to the interpretation of this Part of the present Treaty or of any subsequent con- vention concluded by the Members in pursuance of the pro- visions of this Part of the present Treaty shall be referred for decision to the Permanent Court of International Jus- tice. (See, in general, Jenks, International Protection of Trade Union Freedom, pp. 157-161.)

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Acting on the basis of Article 26 (to use the numbering of the amended text) of the Constitution, the Republic of Ghana sent a communication to the Director-General of I.L.O. on 24 February, 1961, in which it stated:

The Republic of Ghana is not satisfied that Portugal is se- curing the effective observance in her African territories of Mozambique, Angola and Guinea of Convention No. 105 (Abolition of Forced Labour Convention, 1957) which both Portugal and the Republic of Ghana have ratified.

Accordingly, the Republic of Ghana requests that the Gov- erning Body of the I.L.O. take appropriate steps, for ex- ample, by setting up a Commission of Inquiry to consider this complaint and to report thereon.

The Governing Body of the I.L.O. on 10 March, 1961, approved the report of its Officers in regard to the procedure that included the creation of a Commission of Inquriy. The judicial nature of the inquiry is indicated by the composition of the Commission: the Chairman was a Member of the Permanent Court of Arbitration, another Member was a former judge of the International Court of Justice and had previously been President of the High Court of Justice in his own country, and the third Member was the First President of the Supreme Court of another country. Further, the Commission in its report said:

The Governing Body in appointing the Commission placed special emphasis on the judicial nature of the task entrusted to it, indicated its desire for “an objective evaluation” of the contentions submitted by “an impartial body” and re- quired the members of the Commission before taking up their functions to make a solemn declaration in terms cor- responding to those of the declaration made by Judges of the International Court of Justice,

The Commission also noted in its report that if its findings or recom- mendations were not accepted by both governments, either one of them might refer the case to the International Court of Justice under Article 29 of the Constitution of the I.L.O.

A similar Commission later examined the complaint of Portugal concern- ing the observance by the Government of Liberia of the Forced Labour Convention of 1930 (No. 29). The role of such Commissions in the ad- ministration of justice in labor problems is well stated in the report of the Commission, which was composed of an Argentine jurist who was a former judge of the International Court of Justice, a judge from Ceylon, and a Finnish professor with wide experience in international arbitrations:

In these circumstances, the Commission cannot regard the complaint as calling for summary dismissal on the ground of its alleged political character. The Commission is not concerned with any political aspects which the matter may have; the task entrusted to it is that of examining judicially whether or not there has been or is a failure by Liberia to secure the effective observance of the provisions of the Forced Labour Convention, 1930 (No. 2 9 ) , ratified by Liberia on 1 May 1931. In taking this view the Commission has been guided by a series of decisions of the International

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Court of Justice in cases in which it was contended before the Court that it should decline to give an advisory opinion by reason of the political nature of the questions on which its opinion was requested, and notably by the decisions of the Court in the Conditions of Admission of a State to Membership of rhe United Nations (Article 4 of the Char- ter) case and the Certain Expenses of the United Nations case. As was said by the Court in the Conditions of Admis- sion case, the Commission “is not concerned with the mo- tives which may have inspired this request”; it is no part of its function either to endorse or to impugn them; while the question referred to the Commission may be, to use the language of the Court in the Expenses case, “intertwined with political questions”, the task of the Commission is to examine judicially without regard to such considerations, whether or not the obligations of the Constitution and the Convention are being carried out. (International Labour Organisation, Oficial Bulletin, Vol. XLVI, No. 2, Sup- plement 11, April 1963, at p. 155.)

More recently the International Labour Organisation has used another technique for investigation, that of study and report but with no attempt to pass judgment; the question was the situation of trade unions in Spain. The Spanish Government invited and aided the inquiry.

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We have noted that there is an established legal doctrine concerning a State’s responsibility for denial of justice to the citizens or corporations of another State. The same term is not used when a State complains that another State has violated the rights of the State itself-for example, by invading its territory-although this is considered a violation of international law. The failure of the United Nations Security Council to administer justice in such situations has been revealed day after day in the Middle East. The organs of the United Nations, as already noted, administer rebukes but not justice. Nevertheless, the Secretary-General through his representatives in that troubled area, in Kashmir and elsewhere, has exercised the role of an administrator of justice. Truce supervision is an aspect of that function. In Cyprus, as once in the Congo and in the Middle East, the “blue berets” of United Nations forces are symbols of justice administered.

One should recognize that justice is administered even where some im- portant body of opinion disagrees with the solution at which a decision-making body has arrived. One may go back to the outraged outcry against the Court’s decision in the cause cHPbre of Sacco and Vanzetti. Even if one maintains that a particular decision of a court is unjust, according to a chosen criterion or predilection, this too is an aspect of the administration of justice, para- doxical as the statement may be. Rarely are both parties to a contentious case in a national or an international tribunal ready to agree that the decision is correct, but they may agree that the Court has been just in that it has impartially addressed its learning and its judicial industry to the controversy. In the same way, a compromise solution may be just, although neither party is satisfied.

Given the situation in which States must consent to the Court’s jurisdic-

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tion before it can pass judgment, that is administer justice, one can sympathize with the reluctance of a State that feels its most vital interests are at stake. One has less sympathy for governments that reiterate their devotion to the international rule of law and the functioning of the International Court of Justice but cannot bring themselves to submit even minor cases to the Court as concrete evidence of that devotion, for fear the judgment will be adverse, although the resulting loss would be scarcely consequential.

What must be abandoned is the idea that it is an unfriendly act to bring to the bar of justice a friendly State with which there is an unresolved con- troversy. Some 60 years ago, it was considered a great step forward when, at the Second Hague Peace Conference, the States of the world agreed that an offer of mediation or good offices could never be resented as an unfriendly act. What more tangible sign of friendly relations than the mutual agreement to submit a dispute to the International Court of Justice, just as England and France, Belgium and Holland, Honduras and Nicaragua, Cambodia and Thailand have submitted to the Court’s judicial fixing of their respective territorial claims? Just after the American Civil War, the United States and Great Britain set a great example in submitting to an international tribunal the so-called Alabama claims, which arose from the depredations of the Confederate cruiser that Britain allowed, in violation of its duties as a neutral, to be outfitted in its ports. So the same countries submitted to international adjudication the North Atlantic Coast Fisheries dispute, the Bering Sea Seal Fishery dispute, the Alaskan Boundary dispute. Under a 1910 treaty that followed earlier precedents, England and the United States set up a special international tribunal that heard numerous small claims of each against the other. Why is this practice not repeated? Are there no matters involving points of law on which the two countries in their mutual relations are now in disagreement? I find it hard to accept a totally negative answer. Should they not continue to offer leadership in the cause of the international admin- istration of justice?

As a lawyer and former judge, I hasten to admit the limitations of the law. Roling (International Law i,n an Expanded World (1960) p. 94) puts the case well, although his dichotomy between law and justice is too sharp:

In the present-day community of international law the “old world” emphasizes the positive law of nations-the instru- ment and symbol of its former supremacy; whereas the “new world” appeals to justice. Here, too, the Charter al- ready gives expression to the new relationships. In general, justice is mentioned before positive international law (as in the Preamble.) In the important Article 1, Section 1, the solution of differences “in conformity with the principles of justice and international law” is stated to be the means by which the peace aims of the United Nations can be per- formed. The fact that “justice” is mentioned before “inter- national law” here, means that adherence to positive inter- national law is not compulsory in the striving after “adjust- ment.”

The Charter bars the United Nations from intruding in domestic questions. Because no State can live unto itself alone in this modern world, many matters once considered “domestic” have, under the impact of technology, become of

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international concern. Given the feebleness of the international machinery for the administration of justice, that concern may be manifested only by sympathy or by the gnashing of teeth; if only the United Nations itself had teeth!

Organs for the administration of justice are not gadgets to be invented by some clever technician. The difficulty lies with what Loren Eiseley calls “the fossil ape encrusted in our hearts.”