the Triptych of St. Ildephonse and the Czecho-Slovak claim to the pictures at Vienna would have arisen had Charles I. decorated Holyrood with the pictures which he had bought out of English revenues and the Protector had then claimed these works of art from a Scotland which had itself sent Charles into exile, on the ground that they had been wrongfully removed from England and were English State property.

INTERNATIONAL INTERPRETATION OF

NATIONAL CASE LAW

By W. R. BISSCHOP, LL.D.

In the issue of this Year Book for 1922-1923, I suggested, in discussing the immunity of States in maritime law, that in order to overcome the difficulties attaching to State sovereignty in questions of this nature the assistance of the Permanent Court of International Justice might be invoked as a higher tribunal to which questions of jurisdiction could be submitted without any risk of interference with the sovereign rights and prerogatives of the Crown.

At the meeting of the Comité Maritime International, which was held in London from October 9 to 11, 1922, the question of "Immunity of State-owned Ships formed one of the subjects for discussion, and the Conference was practically unanimous in agreeing that the difficulties to which such immunity gave rise could only be overcome by an international convention whereby a State should not insist on its sovereign rights except in the case of certain vessels, such as war-ships or ships engaged in State work of a purely non-commercial character, but that otherwise its ships should, like those of its own citizens with whom they were competing, be subject to the jurisdiction of its courts.

An international convention on these lines, even if sanctioned by subsequent national legislation, could hardly be considered an adequate solution of the difficulties connected with the question of immunity, unless at the same time means provided for settling differences as to jurisdiction and for a uniform interpretation of the convention in all the courts of the various maritime countries. Varying interpretations of international conventions-or rather of the national laws based upon an international convention—are neither impossible nor improbable, though it is to the public interest that such varying interpretations should be avoided. Inasmuch as similarity

of enactments is aimed at in international conventions, an attempt should be made to obtain uniformity and, thereby, continuity of international jurisdiction. It may indeed be doubted whether the former would be required if the latter could be secured.

In order that a procedure might be set up whereby in future differences of jurisdiction would be avoided, I suggested at the above-mentioned Conference that the following resolution should be added to the proposals for the limitation of State immunity in maritime matters, viz. :

"Legal controversies which may arise with regard to provisions settled by such [international] convention [as proposed] should, in order to obtain continuity and uniformity of jurisdiction, be submitted for final decision to the Permanent Court of International Justice."

It is always dangerous to condense new matter of a controversial nature into a few words. The proposition was misunderstood. It was thought that it might be considered a precedent for appeal from national courts to the Hague Court, and it was felt unwise to overburden the proposal concerning so delicate a subject as State immunity with additional matter touching the sovereign rights of final jurisdiction. But the Hague tribunal is not a court of appeal, and it is unlikely that it will ever become one in the ordinary sense of the word. There must be finality in the dispensation of justice, and the Permanent Court of International Justice, unlike the Judicial Committee of the Privy Council, was not created to give a final interpretation on points of national law in any one country. Its function is to administer justice between nations and in international matters.

There can, however, be little objection to allowing the Court to determine the true meaning and character of international law, that is to say, of that relationship in international intercourse which is regulated by the rules of international law, and the interpretation of which by national courts is inadequate. There is a great difference between, on the one hand, allowing a litigant whose appeal, say, to the Judicial Committee of the Privy Council had been settled, to re-open his case by summoning his opponent before the Permanent Court of International Justice, even though the points at issue were points of international law, and, on the other hand, authorising a State to challenge a

final decision of a national court of last instance on points of international law, in the case of the court of some other country differing in the interpretation of the particular points at issue, in order to create uniformity in the interpretation of international law in all countries concerned.

Appeal from a judgment involves the reopening of the case, with the result that the previous judgment may be reversed. A challenge by a Government, as suggested, for the sake of uniformity and guidance, would not reverse a final judgment in a national court, if only because the parties to the suit would not be the same as the parties in the final proceedings before the national court. The parties in the latter would be the litigants who sued each other for damages in contract or in tort. In the proceedings before the Permanent Court at The Hague the litigants would be the representatives of the State who challenged the decision of the national court and the representatives of the State whose court of last instance had given the disputed decision.

This matter is, in fact, provided for in the Statute of the Permanent Court of International Justice. Among the rules regulating the procedure of the Court, Article 60 provides: "The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party."

As the Permanent Court is a court of last instance it would be impossible to obtain an interpretation of its judgment by any other authority than itself. As the parties in cases before the Court can only be States or members of the League of Nations,1 it would be impossible to allow any State to ask for the interpretation of a judgment in a suit to which it was no party. This must be left to the parties themselves. Though the judgment has binding force between the parties only, it may perhaps be supposed that its interpretation will have binding force upon the Court itself and so create a rule of international law for the future.

Similarly, in the case of disputes which arise under provisions of national law sanctioning an international convention, the proceedings may be continued until final judgment is given. by the supreme national court. The decision of that supreme national court may involve an interpretation of an international

1 Art. 34 of the Statute.

2 Art. 59 of the Statute.

character. It may refer to one of the essential elements of the international convention sanctioned by the national law in question, and in that respect it may contradict the construction put on the provisions of the international convention by some other supreme court in some other State, or it may practically reverse the generally accepted meaning of the rules laid down. in the convention.

As international law is at present construed it represents, for the most part, international law viewed from a national standpoint. When issues of a controversial character are tried it is not improbable that the interpretation given by a national court will be more national than international in its character. National courts have to administer the statute and common law of their own country and can only administer international law as part of such statute and common law. Is it to be wondered at that an international convention when subjected to judicial scrutiny in the courts of two different countries and interpreted in each of them from a national standpoint, should reveal ambiguity in its provisions and show itself open to various interpretations? Can any serious objection be raised to the suggestion that for the sake of uniformity and continuity these various interpretations should be brought before the Permanent Court at The Hague and submitted to its final decision, and that the Court's ruling should be accepted and followed in subsequent cases by all national courts as the proper interpretation of the conventions concerned? The great merit of the Permanent Court of International Justice is that it views international law from an international standpoint, that it may be considered to adopt an international view of international issues and thereby to lay down the true international interpretation of international statutory law.

To what extent does the Statute for the Permanent Court of International Justice provide means for obtaining this result? In Article 14 of the Covenant of the League of Nations which lays down the jurisdiction of the Hague Court it is provided that "the Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it," and that "the Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly." Is the desired object obtainable by means of these provisions? The suspicion aroused at the