THE ADVISORY JURISDICTION OF THE PERMANENT COURT OF

INTERNATIONAL JUSTICE IN PRACTICE: A TALE OF TWO SCOPES

Panos Merkouris*

I. Introduction

The present contribution addresses the antithetical notions of success

and failure, hope and despair, tradition and innovation in relation to the
PCIJ’s advisory jurisdiction. It aims to complement the analysis provided
by Marika Giles Samson and Douglas Guilfoyle in their contribution1 by
focusing on specific features arising in the exercise of the Court’s advisory
jurisdiction.
In so doing, it approaches the PCIJ from the perspective of two scopes.
The first scope is one of ratione personae, ie which organs had the compe-
tence to request Advisory Opinions. The second scope is one of ratione
materiae, focusing on the questions themselves. This analysis is further
subdivided into two parts: firstly, as to the nature of the issues that could
be brought before the PCIJ; and secondly, as to the extent that the PCIJ
could deviate from, or “reformulate”, the question put to it. Both inquiries
yield insights into the practice of the PCIJ’s advisory jurisdiction and allow
us to gauge commonalities and differences between the ICJ and its
predecessor.

II. Scope Ratione Personae: The Bodies Permitted

to Ask the PCIJ for an Advisory Opinion

What is immediately striking is the identity of the bodies that could

request an Advisory Opinion. In the case of the PCIJ, only the Council of
the League of Nations and the Assembly had that right.2 At this point one
needs to refer to the somewhat bizarre representation of the advisory

1 See M Giles Samson and D Guilfoyle (in this volume).

2 Article 14 of the Covenant and Article 65 of the Statute (as amended by the Protocol
of September 14, 1929).
70 panos merkouris

jurisdiction in the relevant documents. Whereas Article 14 of the Covenant

referred to the Council and the Assembly as the two bodies permitted to
request an Advisory Opinion, this was not also reflected in the original
Statute of the PCIJ. In fact, no provision relating to the advisory jurisdic-
tion of the Court was included in that document. As a result, the advisory
jurisdiction envisaged in Article 14 of the Covenant, was expounded upon
only in 1922 in Articles 71–74 of the Rules of Procedure of the PCIJ. This
led, as Forwein and Oellers-Frahm correctly point out, to the somewhat
paradoxical situation that these rules came into effect after the PCIJ
had already given two Advisory Opinions.3 Despite this, the 1922 Rules4
referred to Article 14, and confirmed that only those two bodies were per-
mitted to ask for an Advisory Opinion.5 This solution was eventually
reflected in the Statute when it was revised in 1929 and a new Chapter,
Chapter IV, was introduced dedicated to Advisory Opinions.6
It goes without saying that the power to request an Advisory Opinion
was not limitless. As the PCIJ made clear in the German Settlers in Poland
Advisory Opinion: “If … the subject-matter of the controversy is not within
the competence of the League, the Court would not be justified in render-
ing an opinion as to the rights of the settlers. The Court therefore will first
consider the question of competency.”7

3 ie Designation of the Workers’ Delegate for the Netherlands at the Third Session of the
International Labour Conference (Advisory Opinion) [1922] PCIJ Ser B No 1, at 9 seq;
Competence of the International Labour Organization (Advisory Opinion) [1922] PCIJ Ser
B Nos 2–3, at 9 seq.
4 And all its consecutive amendments in 1926, 1927, 1931 and 1936.
5 In more detail see: J Frowein and K Oellers-Frahm, ‘Chapter IV Advisory Opinions:
Article 65’, in A Zimmermann, C Tomuschat, and K Oellers-Frahm (eds), The Statute of the
International Court of Justice: A Commentary (OUP, Oxford 2006) 1404; G Guyomar,
Commentaire du Règlement de la Cour Internationale de Justice: Adopté le 14 Avril 1978 :
Interprétation et Pratique (Pedone, Paris 1983) 644 seq; MO Hudson, ‘Les Avis Consultatifs
de la Cour Permanente de Justice Internationale’ (1925) 8 Recueil des Cours 341 seq.
6 Pursuant to Article 65, as introduced in 1929, “[q]uestions upon which the Advisory
Opinion of the Court is asked shall be laid before the Court by means of a written request,
signed either by the President of the Assembly or the President of the Council of the League
of Nations, or by the Secretary-General of the League under instructions from the Assembly
or the Council.” (emphasis added).
7 German Settlers in Poland (Advisory Opinion) [1923] PCIJ Ser B No 6, at 19; see also
Individual Opinion of Judge Anzilotti in the Free City of Danzig and ILO Advisory Opinion
where he comments on the fact that only the body which had exclusive competence over
certain matters had the corresponding authority to request an Advisory Opinion on those
matters; Free City of Danzig and ILO (Advisory Opinion) [1930] PCIJ Series B No 18,
Individual Opinion of Judge Anzilotti, at 20; and Hudson, who argues that any attempt by
any of the two bodies of the League to delegate their authority to request an Advisory
Opinion would be ultra vires; MO Hudson, ‘The Two Problems of Approach to the
Permanent Court of International Justice’ (1935) 29 AJIL 636, 642–643.