Speech of H.E. Mr. Abdulqawi A. Yusuf, President of the International Court of Justice, on the occasion of the one hundreth anniversary of the adoption of the Statute of the Permanent Court of Interna

SPEECH OF HIS EXCELLENCY JUDGE ABDULQAWI AHMED YUSUF, PRESIDENT
OF THE INTERNATIONAL COURT OF JUSTICE, ON THE OCCASION OF
THE ONE HUNDREDTH ANNIVERSARY OF THE ADOPTION
OF THE STATUTE OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE
The Hague
10 December 2020
The Statute of the Permanent Court of International Justice as
a foundational instrument of international adjudication
Introductory remarks
Excellencies,
Dear Colleagues,
Ladies and Gentlemen,
1. I would like to extend a warm welcome to all of you, whether you are with us in person or
joining us by video link to share in this celebration of the 100th anniversary of the Statute of the
Permanent Court of International Justice. This is a low-key and circumspect celebration due to the
COVID-19 pandemic which has made celebrations difficult throughout this year. However, the
organization of this event in the form of a symposium and a dialogue among members of
international judicial institutions is very suitable to the celebration of an instrument which has laid
the groundwork for international adjudication, both in intellectual and practical terms. It is that
unique contribution of the Statute that speakers will address today from different vantage points
and perspectives. The Statute, as you all know, was adopted by the Assembly of the League of
Nations on 13 December 1920. However, we decided to hold the event today, because
13 December is a Sunday this year.
2. The adoption of the Statute by the League of Nations led to the establishment of the first
permanent international judicial institution with universal vocation and general jurisdiction.
Although adopted 25 years later at San Francisco, the Statute of our Court is based on the Statute of
the PCIJ, with minor modifications. It is, therefore, a great pleasure for us to celebrate today this
100th anniversary, which is a fundamental part of the history of our Court.
3. In my introductory remarks today, I would like to focus on two main features of this first
international judicial institution which were reflected in its Statute: independence and permanence.
These two features were highlighted by the French jurist and politician Léon Bourgeois in his
introduction of the draft Statute at the Assembly of the League of Nations. He stated that “[f]or the
first time a simple scheme for a permanent court, for a true court of justice, is laid before the
world . . . [A]s a result of our scheme a tribunal, placed above and outside all political influences,
truly permanent — that is to say, open at any moment to those who appeal to it  is going to be set
up in the world.” (League of Nations, Documents concerning the action taken by the Council of the
League of Nations under Article 14 of the Covenant and the adoption by the Assembly of the
Statute of the Permanent Court, p. 226.)
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4. These two characteristics, namely “placed above and outside all political influences” and
“truly permanent”, which describe today almost all international judicial institutions, were at the
time of their introduction into the Statute both innovative and trend-setting.
5. Let me take the first element: the independence of the international judiciary. As you are
all aware, the PCIJ was not the first proposal for the establishment of an international court. At the
1907 Hague Conference, the 45 participating States tried to establish a permanent court of justice
and also a Prize Court. However, neither of these courts saw the light of day, due to irreconcilable
differences regarding their composition. All participants in the Conference wanted to have a
national on the bench of these courts, which would have made the judges some kind of
representative of their national government. In addition, the most powerful States sought a longer
term of office for their national judge. This could have greatly undermined the independence of the
Court. And how many States could, in any case, be accommodated on the bench of such an
institution?
6. The drafters of the Statute were able to overcome this obstacle by making three judicious
decisions. First, they decided that nationality should not play a role in the election of Members of
the Court, but that, instead, competence and high moral character should be the fundamental
requirements. Thus, Article 2 of the Statute provides that “[t]he Court shall be composed of a body
of independent judges, elected regardless of their nationality from among persons of high moral
character, who possess the qualifications required in their respective countries for appointment to
the highest judicial offices, or are jurisconsults of recognized competence in international law.”
Independence; competence; and high moral character.
7. Secondly, the drafters of the Statute devised a “bicameral” election system to take into
account States’ attachment to their relative political weight. In accordance with that system,
Members of the Court were to be elected both by the Council of the League of Nations, which was
composed of “large” States, and by the Assembly, which was composed of a greater number of
“smaller” States, to use the terminology of that time. This system is still used by the United Nations
for the election of the Members of the International Court of Justice.
8. Finally, the drafters of the Statute were able to counterbalance the role that governments
and domestic politics may play in the election of Members of the Court. Thus, on the ingenious
proposal of the Dutch jurist, Loder, it was decided that candidates for election to the Court would
be proposed by the national groups of the Permanent Court of Arbitration, instead of being
proposed by governments. For Loder, this would avoid “the dangers confronting the world which
might result from [governments’] incapacity, ill will, intrigues or conspiracies”. One can only
express the hope that this is still the case today.
9. The confidence and trust placed in an international court depend to a large extent on the
quality of its judges, their moral character and their independence. It is, therefore, my view that the
politicization of these finely crafted electoral mechanisms, through such methods as the reciprocal
exchange of votes during elections, should be avoided by all means, since they might negatively
affect these fundamental qualities of the international judiciary.
10. Another basic feature of the independence of the international judiciary, which is also
intimately linked to its permanence, is the ability of an international court to be master of its
procedures, including the ability to establish rules of procedure applicable to all cases brought
before it, irrespective of their nature or the quality of the parties involved. In this respect, the
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drafters of the Statute created a delicate but perfect balance. First, they chose to leave the details of
the Court’s procedures in the hands of the Court. Article 30 of the Statute, therefore, provides that
“[t]he Court shall frame rules for carrying out its functions”, including its “rules of procedure”. In
doing so, the drafters of the Statute enabled the Court to devise a procedural system which draws
from all domestic systems, while preserving its unique identity. This freedom also provided the
Court with the flexibility necessary to adapt to evolving external situations, such as the current
COVID-19 pandemic. As you all know, our Court was able, when faced with this situation, to react
quickly by amending its rules of procedure and by putting in place a hybrid system that enabled it
to continue its judicial activities during these challenging times.
11. Secondly, the drafters also showed foresight by establishing in Article 36, paragraph 6,
of the Statute, that the Court shall decide on its own jurisdiction. This principle of competencecompetence
reaffirmed the independence of the judicial process from the views of parties to cases
and enhanced its authority at a moment when this power of international jurisdictions was still
contested.
12. Let me make one final observation with regard to the element of permanence. This was
one of the most debated issues both at the 1899 and 1907 Conferences, but the Statute succeeded in
putting it to rest. It is thus provided in Article 23 of the Statute that “the Court shall remain
permanently in session, except during judicial vacations”. It is also noteworthy that the drafters
considered it necessary to emphasize in this provision that “Members of the Court shall be bound to
hold themselves permanently at the disposal of the Court.” This has now become one of the
essential features of most international judicial institutions. As a result, becoming an international
judge has nowadays turned into a career aspiration for many individuals throughout the world.
13. To conclude, it should perhaps be recalled that the draft Statute of the Permanent Court
of Justice was first drawn up by an Advisory Committee composed of ten jurists, who met here in
the Hague, at the Peace Palace, between 16 June to 24 July 1920. After a little over five weeks of
intense work, they were able to deliver a draft Statute to the Council and Assembly of the League
of Nations. The end-result of this collective effort is, in my view, the best text that legal talent
could devise for international adjudication. One hundred years after its adoption, the Statute has
served as the basis for the evolution of international adjudication and has profoundly influenced the
formulation of the statutes of other international and regional courts created in the past 70 years.
14. If time is the ultimate test of quality, the work of the drafters of the Statute was certainly
a masterpiece. Even if we were to draft a new Statute today, I do not think that we would find much
to change in its provisions. As we celebrate the centenary of this unique instrument, it is therefore
appropriate to pay glowing tribute to those ten personalities, some of whom, such as Adatci,
Altamira, Fromageot and Loder, later became members or even Presidents of the PCIJ. I thank you
for your attention.
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