354 Between Yesterday and Tomorrow (1914– )would exercise their own in de pen dent judgment of the law and facts in cases
before them.
It was fortunate that a solution was ready to hand for the problem that
had thwarted the proposed Court of Arbitral Justice prior to the war: the
method of selection of the judges. Th e institutions of the League were
given the task. Election to the Court required a majority vote of both of the
League’s principal bodies— the assembly (comprising the entire League
membership) and the council (where there was disproportionate weighting
of the major powers). Th e fi rst elections, held in 1921, went smoothly, and
the Court held its inaugural public sitting in February 1922. It was located
in the Peace Palace in Th e Hague, alongside the Permanent Court of Arbi-
tration, which continued (and continues) to function.
Th e Court was given jurisdiction only over states. Individuals would have no
standing to bring actions (as they did before the Central American Court of
Justice and would have had in the International Prize Court if that body had
come into existence). Nor could international organizations such as the Inter-
national Committee of the Red Cross or the League of Nations itself either
bring or defend claims. Th e Committee of Jurists had proposed that the Court
have mandatory jurisdiction over states that were parties to the statute, but the
League council decided otherwise, on the ground that it was clear from the
text of the League Covenant that the Court would not have mandatory juris-
diction. A state could therefore be sued in the Court only if it so consented.
Th e council did, however, make a gesture in the direction of compulsory
jurisdiction. Th is was in the form of a provision in the Court’s statute allow-
ing states, purely at their own unilateral option, to eff ect a sort of self- imposed
compulsory jurisdiction. Specifi cally, a state could issue a declaration that it
would permit cases to be brought against it by any other state issuing a simi-
lar declaration. Th e eff ect, then, would be that, within the group of states
making such a declaration, the Court would have compulsory jurisdiction
over all disputes, with no need for ad hoc consent in each individual case.
Th e provision of the Court’s statute setting out this arrangement became
known, somewhat confusingly, as the “Optional Clause”— referring to the
fact that it was optional for states to issue a declaration accepting the prin-
ciple of compulsory jurisdiction.
Provision was carefully made to ensure that, whenever two states litigated,
there should be a judge of each nationality on the bench. If, in a given case,