Acting then on the theory that the statement in Article 14 of the Covenant relative to advisory opinions forms a part of the constitutional basis of the Court, the legal effect of the statement is next to be considered. Does it simply confer a competence on the Council and Assembly to request advisory opinions, or does it also confer a competence on the Court to give such opinions when requested? If the double effect is admitted, is the Court bound to give opinions when it is requested to do so, or may it weigh its situation with respect to each request and determine its course of action ad hoc? And what limits, if any, exist with reference to the proper subjectmatter of advisory opinions?

The slight difference between the French and English texts of Article 14 has been very much stressed in discussion of these questions, and as both texts are authentic both must be given equal weight. It might be difficult to establish, as a matter of historical origin, which text of Article 14 was a translation of the other; and it seems improper, when the two texts have been handed to us as authentic, to attempt any such inquiry. The legal effect of the two texts should be based on a reading of both which will reconcile their differences, if that be possible; and if that be impossible, a construction should be adopted which will do least violence to the two texts and which will furnish the Court with power to function most effectively as a Court. In this case the difference between the two texts is not really significant: the French text is, elle donnera aussi des avis consultatifs; while the English text reads, the Court may also give an advisory opinion. Judge Moore read the French text as open to interpretation, and he hesitated to assume that the idea of positive obligation had been included as if the text had read, elle devra donner; he found the English text permissive, and importing a discretion in the Court as to its responses to requests for advisory opinions. Judge Bustamante, on the other hand, has taken a somewhat different view, and one French commentator who agrees with Judge Moore that the texts are divergent gives to each of them a contrary interpretation.10 Apart from the degree to which these texts should be deemed to be imperative, it would seem clear that the language of Article 14 does not merely relate to the competence of the Council

See Judge Moore's memorandum in Publications of the Court, Series D, No. 2, pp. 383. 384. M. Politis seems to accept Judge Moore's distinction. Politis, La Justice Internationale (1924), p. 174.

Bustamante, La Cour Permanente de Justice Internationale (1925), p. 247. 10Daliétos, Les Débuts de la Cour Permanente de Justice Internationale (1923), p. 63.

and Assembly, but that it also relates to the competence of the Court and that the Court must be the final judge of the conditions necessary for a proper exercise of this competence. The Court has not attempted to say in advance what these conditions are, and it is perhaps fortunate that the cumulated experience will be allowed to furnish pragmatic guides for deciding upon them.

The distinction in Article 14 between disputes (différends) and questions (points) is perhaps more important. The competence of the Council or Assembly to request opinions, and the competence of the Court to give them extends to both. When the distinction was considered by the Advisory Committee of Jurists, Professor de Lapradelle expressed the opinion that while a dispute would involve a "practical case," a question might be more in the nature of a "theoretical question," and the Advisory Committee acted on such a distinction in proposing in its draft scheme the following (Article 36):

"The Court shall give an advisory opinion upon any question or dispute of an international nature referred to it by the Council or Assembly.

"When the Court shall give an opinion on a question of an international nature which does not refer to any dispute that may have arisen, it shall appoint a special Commission of from three to five members.

"When it shall give an opinion upon a question which forms the subject of an existing dispute, it shall do so under the same conditions as if the case had been actually submitted to it for decision.

This proposal would have greatly emphasized the distinction between disputes and questions as to which advisory opinions may be requested, and its complete rejection by the First Assembly has undoubtedly contributed to reducing that emphasis. The Assembly seems to have acted on the view expressed by M. Ricci-Busatti (Italy) that "in practice it would be impossible for the Court to draw a distinction between the cases contemplated."12

The Advisory Committee had in mind the possibility that a dispute submitted to the Council under Article 15 of the Covenant might later be referred to the Court by the Council for an advisory opinion, and that such instances would call for a procedure different 11 Proceedings of the Advisory Committee of Jurists, p. 584. Records of First Assembly, Meetings of Committees, vol. I, p. 387.

from that to be followed where the Council might seek an opinion relating to an abstract question which had not arisen and was not pending in the course of actual affairs. But it may be that the Committee gave too wide scope to the questions (points) referred to in Article 14. Viewing the distinctly judicial nature of the Court, and the desirability of confining all its action within the limitations. of the judicial function, there is nothing in Article 14 which requires it to become the schoolmaster of the Council, which necessitates its going outside the realm of affairs to formulate juristic theory. And since the Committee's proposal was omitted from the Statute, it would seem that only in this sense has the last sentence of Article 14 been incorporated into the Court's constitution. If it should ever be called upon to give interpretations of the Covenant, which was one of the objectives of the original proposals that the reference to advisory opinions be included in Article 14, the Court may even then restrict itself to interpretations which are called for by the current activities of Members of the League in cooperation with each other.

On the whole, therefore, it would seem that no hard and fast line can be drawn between disputes and questions as the terms are used in Article 14 and that both must relate to the current conduct of international affairs. On some occasions, it might be not only difficult but also invidious to characterize a situation in which a legal question has arisen to demand answer, as a dispute between nations. This is the more evident when one reflects that the term dispute was used in other articles of the Covenant where it connotes elements of acuteness and possible unfriendliness which would not be present in every situation. Hence it was essential that the framers of Article 14 should draw the distinction. It was not mere tautology, nor does its existence call for the exaggerated emphasis which led the Advisory Committee of Jurists to make its proposal. To summarize what has been said, the basis of the competence of the Court with reference to advisory opinions is to be found in the last sentence of Article 14 of the Covenant, which may be treated as having been incorporated by reference into the Statute of the Court. However the French and English texts be construed, they must be so interpreted as to leave the Court an effective agency for the judicial administration of international law. The judges are always subject to the general limitations which circumscribe judicial action,

and within the compass of the Court's basic documents they must say for themselves what these limitations are. Whether disputes or questions be the subject-matter of opinions requested, it will practically always be unnecessary to determine; the Court will be acting as a court in either event.

THE EXERCISE OF THE COURT'S ADVISORY JURISDICTION

If any doubt existed in the beginning, either as to the propriety of the Council's requesting advisory opinions or as to the propriety of the Court's giving them when requested, it has now been allayed by what has been done during the course of these past three years. The Court made the first contribution to resolving such doubts when it drafted its Rules of Court; the Council on its side has consistently recognized the need for advisory opinions in connection with its attempts to realize the aims and purposes of the League of Nations; and the procedure followed by the Court in connection with the twelve requests for advisory opinions has builded a secure foundation for developing an international jurisprudence in this direction. Early in 1922, when the Court met for its preliminary session and undertook to organize itself for work, it became necessary to determine the place to be given to its advisory jurisdiction. The draft agenda for the session, prepared by the Secretary General of the League of Nations, contained an item referring to rules of court for advisory opinions. The Court had before it at its first meeting a draft of rules of court prepared by the Secretariat which included elaborate rules for advisory opinions.1 Judge Altamira submitted a draft which provided for advisory opinions, distinguishing between those which do and those which do not relate to a "dispute existing at the moment."

A committee on procedure3 which was set up by the Court itself, raised three important questions: (1) whether secret advisory opinions would be given to either the Council or the Assembly; (2) whether with regard to abstract questions the Court might refuse to give opinions; and (3) whether with regard to abstract questions opinions might be reserved until the question involved arose in a

1Publications of the Court, Series D, No. 2, pp. 268-70

2Ibid., p. 280.

This committee was described by Mr. Hammarskjöld in an article in 36 Harvard Law Review, 704, 708. See also Publications of the Court, Series D, No. 2, p. 19.

concrete case. And later this committee proposed draft rules answering these questions, leaving open the possibility of secret opinions and saying that "the Court reserves the right to refrain from replying to questions put to it which require an advisory opinion on a theoretical case.'

5

But it was a memorandum submitted by Judge Moore on February 18, 1922, which dealt with the whole subject of advisory opinions most profoundly. Judge Moore thought it the "most baffling" question in connection with the organization of the Court. He traced the history of the attempt to include in the Court's Statute an article dealing with advisory opinions, and in fine said, "Thus, at the end of six months devoted to the drafting of the Statute, the attempt to solve the question of advisory opinions was abandoned." He then put ten conclusions for the Court's consideration, in which he stated that the Court was not obliged to give advisory opinions, that the giving of such opinions was "not an appropriate function of a Court of Justice" and "at variance with the fundamental design of the Permanent Court of International Justice," and that such opinions would tend to obscure the character of the Court, diminish its judicial activity, and prevent its contributing through its jurisprudence to the development of international law. He proposed therefore that the Court should not seem to invite requests for such opinions and that without any special regulation concerning them the Court should deal with each application at the time upon its merits.

Deputy-Judge Negulesco proposed that advisory opinions should be given by a general meeting of the Court, composed of both judges and deputy-judges. He thought that the term Court as it had been used in Article 14 of the Covenant should "be taken in the widest possible sense; for otherwise certain members who represent different legal systems would be excluded from the composition of the Court." But Judge Loder could not find that Article 14 of the Covenant had made "provision for any variation in the composition of the Court according to whether that body is exercising its judicial or its advisory powers.

The Rules of Court' adopted on March 24, 1922, seem to reach an admirable solution of the various questions involved. Article 28

Publications of the Court, Series D, No. 2, p. 292.

Ibid., pp. 383-398.

Publications of the Court, Series D, No. 2, p. 480.

"Ibid., pp. 560-580.