Summary
The Permanent Court of International Justice advisory case (P.C.I.J., Series B, No. 5) in which the Permanent Court declined to give the requested opinion, as Judge Owada presents it in his Wall separate opinion: the rationale was not the existence of a dispute relating to the subject-matter between Finland and Russia, but that Russia, not a League Member, had never given its consent to a solution according to the methods provided for in the Covenant (Separate opinion of Judge Owada, Wall Advisory Opinion, PDF p.3-4).
Details
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The specific issue referred was whether Articles 10 and 11 of the Treaty of Peace between Finland and Russia of 1920 and the annexed Declaration of the Russian Delegation regarding the autonomy of Eastern Carelia constituted engagements of an international character placing Russia under an obligation to Finland as to carrying out the provisions contained therein (P.C.I.J., Series B, No. 5, p. 6, quoted, PDF p.3).
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The issue arose in a dispute between Finland and Russia which Finland asked the League of Nations to take up; the Council expressed willingness to consider it with a view to a satisfactory solution if the two parties agreed (ibid., p. 23), Russia declined consent to submit the question to the Council in conformity with Article 17 of the Covenant (ibid., p. 24), and Finland again brought the matter before the Council, which requested the opinion (PDF p.3).
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The Permanent Court stated it was unnecessary to deal with whether questions relating to a pending dispute should be put without the parties’ consent (ibid., p. 27), and continued that the opinion bore on an actual dispute between Finland and Russia, that as Russia was not a League Member the case was one under Article 17, and that submission of a dispute between a non-Member and a Member for solution according to the Covenant’s methods could take place only by virtue of the non-Member’s consent, which Russia had never given (ibid., pp. 27-28, quoted, PDF p.3-4).
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Owada’s use of the case: its main rationale lay precisely in that withheld consent, not in the existence of a dispute, and it is the historical point from which he develops that a bilateral dispute in the Wall request is no bar to jurisdiction but a factor in how jurisdiction should be exercised (PDF p.3-5).
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Israel’s written statement of January 2004 quotes the Permanent Court’s conclusions in this case at length and takes it to have been concerned by two factors of particular relevance to the Wall request: the absence of consent to adjudication of a legal dispute, and the bar against determining underlying facts where the Court does not have sufficient evidence before it; the statement quotes its formulation that answering the question would be substantially equivalent to deciding the dispute between the parties (Letter of 29 January 2004 and Written Statement of the Government of Israel on Jurisdiction and Propriety, PDF p.104-105).
Related pages
Separate opinion of Judge Owada, Wall Advisory Opinion, Hisashi Owada, Permanent Court of International Justice, League of Nations, Namibia Advisory Opinion, Western Sahara Advisory Opinion