The League of Nations and the Development of International Law

A New Intellectual History of the Advisory Committee of Jurists

P. Sean Morris, P. Sean Morris

• Editore: Routledge
• Anno: 2021
• ISBN:
  9781000434941
• Edizione: 1
• Argomento: Historia
• Categoria: Historia del mundo

This volume examines the contributions to International Law of individual members of the Advisory Committee of Jurists in the League of Nations, and the broader national and discursive legal traditions of which they were representative. It adopts a biographical approach that complements existing legal narratives.

Pre-1914 visions of a liberal international order influenced the post-1919 world based on the rule of law in civilised nations. This volume focuses on leading legal personalities of this era. It discusses the scholarly work of the ACJ wise men, their biographical notes, and narrates their contribution as legal scholars and founding fathers of the sources of international law that culminated in their drafting of the statute of the Permanent Court of International Justice, the forerunner of the International Court of Justice. The book examines visions of world law in a liberal international order through social theory and constructivism, historical examination of key developments that influenced their career and their scholarly writings and international law as a science.

The book will be a valuable reference for those working in the areas of International Law, Legal History, Political History and International Relations.

1
The legal conscience of a universal man

Rafael Altamira y Crevea (1866–1951)

Yolanda Gamarra

DOI: 10.4324/9781003020882-2

1. Introduction

The purpose of this chapter is to present and examine the history of the Permanent Court of International Justice (PCIJ) Statute through the approach of a Spanish ‘wise man’ at the Advisory Committee of Jurists (ACJ): Rafael Altamira y Crevea (1866–1951).¹ Altamira’s background left its mark on the conceptual issues included in the PCIJ Statute² and on the international architecture of the interwar period. The idea here is based on the analysis of the inclusion and interpretation of ‘judicial justice’, the eligibility of judges and the incorporation of a list of sources (Article 38 of the PCIJ Statute), in particular the custom, the general principles of law, and the ‘writings of publicists’.

1 For the elaboration of this work I have taken into account Y Gamarra, ‘Rafael Altamira y Crevea (1866–1951). The International Judge as “Gentle Civilizer”’ (2012) 14 The Journal of the History of International Law 1–49.

2 Statute of the Permanent Court of International Justice, Geneva, 13 December 1920, League of Nations Treaty Series, vol 6, 380–413.

Altamira was a Spanish legal historian who represented the general spirit of a liberal generation who worked for the rule of law to be applied at national and international level.³ Altamira aimed to become the ‘modern intellectual archetype’,⁴ a kind of ‘spiritual guide’⁵ to direct the rest of society from a moral standpoint after the disasters of the wars of 1898 (the Spanish-American War) and of 1914 (the First World War). Altamira became the ‘intellectual’ pillar of Spanish regenerationism and attempted to demonstrate the civilized character of Spanish people and Spain’s civilizing role. He was the man who introduced the Spanish legal culture into the PCIJ Statute.

3 He was an author of multiple axes, of theoretical inspiration, methodological claims and international projection. This is accredited by a scientific work that not only covers the History of Law, Pedagogy or Literature, but also by his introduction in the specialized path of international law. See on the biographical and historiographical reconstruction JMª Martínez Cachero, L Sela Sampil and R Prieto Bances, Homenaje a Rafael Altamira en su Centenario (1866–1966) (Secretariado de Publicaciones de la Universidad 1967); J Malagón Barceló, Rafael Altamira y Crevea: el historiador y el hombre (Universidad Nacional Autónoma de México 1971); V Ramos, Rafael Altamira (Alfaguara 1968); and more recently A Alberola (ed), Estudios sobre Rafael Altamira (Diputación Provincial de Alicante 1987); R Asín Vergara, ‘Prólogo’ to Historia de la civilización Española, by Rafael Altamira (Alianza Editorial 1990); F Moreno Sáez, Rafael Altamira Crevea (1866–1951) (Comunidad Valenciana 1997); E Rubio Cremades and EMª Valero Juan (eds), Rafael Altamira: historia, literatura y derecho. Actas del Congreso Internacional celebrado en la Universidad de Alicante, del 10 al 13 de diciembre de 2002 (Universidad de Alicante 2004), and Rafael Altamira, 1866–1951 (Instituto de Estudis ‘Juan Gil Albert’/Diputación Provincial de Alicante 1987).

4 See JL Abellán, ‘Rafael Altamira como arquetipo de intelectual moderno’ in P Altamira (coord), La huella de Rafael Altamira (Universidad Complutense de Madrid 2013) 4 et seq.

5 The ‘spiritual guides’ had existed throughout history. The features of this figure were different according to the type of society in which its presence occurred with its subsequent evolution. In the West, this evolution had a marked secularization character. Thus, in the Renaissance, the figure of the humanist (Picco della Mirandola) emerged, who later became the figure of the teacher, and later that of the scholar until reaching the figure of the ‘intellectual’. Francisco de Vitoria (1483–1546) was the compiler of the ideas that prevailed on private law and jus gentium in the sixteenth century, and Hugo Grotius (1583–1645) was the compiler of the ideas prevailing in the seventeenth century. See Abellán (n 4) 4.

The PCIJ Statute adopted in 1920 constituted the expression of a new theoretical concept of international law in recognizing as sources not only treaties and customs, but also the general principles of law acknowledged by ‘civilized nations’, jurisprudence, and ‘the teachings of the most highly qualified publicists as subsidiary means for the determination of rules of law’ (Article 38 of the PCIJ Statute).⁶ The PCIJ legacy has influenced the International Court of Justice (ICJ) and has continued to extend its international authority to the present day. International Human Rights Courts and International Criminals Tribunals have followed the same schemes of the PCIJ’s elections of judges, the contradictory procedure, the sources to be applied, or their having a permanent secretariat.⁷ The history of international criminal procedure, for example, has substantially been one of cobbling together building blocks from different traditions in order to create a new sui generis system based on extrapolations from Article 38(1) of the PCIJ Statute (and the ICJ Statute) and the history of Nuremberg, Tokyo and the other post-war military tribunals.⁸

6 See S Besson and J d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (OUP 2017); A Boyle and Ch Chinkin, The Making of International Law (OUP 2007) 338 et seq.; M Koskenniemi (ed), The Sources of International Law (Routledge 2000), or H Thirlway, The Sources of International Law (OUP 2014).

7 See on the origins of the League of Nations secretariat the work of E Drumont, ‘The Secretariat of the League of Nations’ (1931) 9 Public Administration 228–35.

8 M Bolhander, ‘Paradise Postponed? For a Judge-Led Generic Model of International Criminal Procedure and an End to “Draft-as-You-Go”’ (2014) Netherlands Yearbook of International Law 331 et seq.

The study is divided in three parts. First, I describe the Altamira’s liberal education, post-university training, and access to the chair of History of Law, examining the influence of the various trends such as positivism, rationalism, or naturalism on Altamira’s thought. Altamira was imbued with the traditions of nineteenth-century Spain. However, he stood out by virtue of going beyond the prevailing trend of ‘natural law’ and for applying positivism to historical science, a method that, over time, he attempted to incorporate into international legal science.

Second, I present Altamira’s work in the ACJ,⁹ especially the writings that helped shape the content of the PCIJ Statute, that is, the purpose of the PCIJ, its compulsory or optional competence,¹⁰ the eligibility of international judges, or the regulation of its dual function as a court of litigation and as a consultative body. I focus there on the judicial nature of the PCIJ and the nomination process of international judges.¹¹ Through the analysis of these elements, the moral character of the idea of justice in Altamira’s thinking is observed.

9 Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee, 16 June–24 July 1920, with Annexes (Van Langenhuysen, The Hague 1920).

10 He was in favour of permanent justice as opposed to the arbitrational form that had been in force until then.

11 As a ‘pragmatic pioneer’, see Ch Tams, M Fitmaurice, and P Merkouris (eds), Legacies of the Permanent Court of International Justice (Martinus Nijhoff Publishers 2013) 7.

Third, I explore the discussions on the rules of law to be applied by the PCIJ by examining the role played by Altamira and other members of the ACJ as the first jurists who established a ‘closed’ and ‘universal’ list of sources that privileges pragmatism, determinacy, and scientific technique.¹² I analyse Altamira’s thought on the general principles of law and the ‘writings of publicists’ such as sources of international law. I refer to formalization of sources included in Article 38 of the PCIJ Statute.¹³

12 See Th Skouteris, ‘The Force of a Doctrine: Art. 38 of the PCIJ Statute and the Sources of International Law’ in F Johns, R Joyce and S Pahuja (eds), Events, The Force of International Law (Routledge 2011) 69–80.

13 See the interesting chapter of MW Janis, ‘Sources in the Meta-History of International Law: A Little Meta-Theory. Paradigms, Article 38, and the Sources of International Law’ in Besson and D’Aspremont (n 6) 270 et seq.

The chapter concludes with some reflections on the imprint of the Spanish legal culture in the PCIJ Statute. The Spanish authors turn to Francisco de Vito-ria (1483–1546) as the founding father of international law.¹⁴ The principles of the Spanish classics of the sixteenth century were projected into the League of Nat...