2011

How did Anzilotti's jurisprudential conception influence the jurisprudence of the Permanent Court of International Justice?

Jacopo Crivellaro

I. Introduction

Dionisio Anzilotti was born on February 20^th 1867 and died on August 23^rd 1950 after having achieved eminence as a leading international law scholar and judge. In his extraordinary lifetime he served as a member of the Italian Legal Secretariat at the Treaties of Paris of 1919, (1) was appointed Under-Secretary-General of the League of Nations in charge of Legal Affairs (2) and was among the drafters of the statute of the Permanent Court of International Justice ("PCIJ"). (3) Anzilotti was also a professor of international law and a prolific scholar. (4) Yet, his greatest contribution to the development of public international law lies in his "dedicated, tireless, conscientious and intelligent" work for the PCIJ as its judge and President. (5)

This essay seeks to understand how Anzilotti's jurisprudential conception as a legal positivist influenced the judgments of the PCIJ and remains insightful despite the shortfalls of positivist theory. After a summary of the fundamental premises of the positivist school at the beginning of the past century this essay will analyse salient features of Anzilotti's jurisprudence and conclude with a comparison of Anzilotti's views with particular PCIJ judgments.

II. Anzilotti as a Positivist

Anzilotti graduated from the Faculty of Law of the University of Pisa in 1890. (6) He shared the philosophical outlook of many of his contemporary colleagues and adhered to the Italian school of legal positivism. (7) Legal positivism had a particular appeal for Italian scholars, as the value of a positive law was well suited to the codified, "highly typified" and state oriented legal system then applicable in Italy. (8) For example Italian law was entirely based on statute; custom had no legal force and the authority of judicial precedent was limited to the particular case at hand. Familiarity with such a legal structure meant it was simple for Anzilotti to reject any theory assigning validity to a rule not derived by statute. Italian law was also entirely enacted through the state or its delegated agencies. (9) This persuaded scholars that all laws had to flow from the original law-making state, and thus explains the positivist insistence on that as the sole origin of international law. Finally, Italian law was structured with many different classifications following a general conception that all foreseeable factual consequences could be provided for. This conception favoured a deductive reasoning process deriving the applicable law from general principles rather than solving legal issues through an inductive method. (10)

From his earliest writings Anzilotti approached issues of public and private international law in consonance with his ideals of positive law. Endorsing these principles meant rejecting the doctrine of nationalities (11) and an idealist vision of justice, (12) theories which had then been very popular in international legal theory.

Anzilotti expressed the hallmarks of his positive method in the Corso di Diritto Internazionale ("Corso") (13) clarifying as a preliminary step in the consideration of international law the necessity to:

"distinguish law actually in force from the mere aspirations of social conscience and of the doctrine. (14) It must build positive international law into a logical order so that all classes of its rules might be coordinated into a unified system. (15) It must point out the legal aspects of each relationship by severing them from its ethical and political aspects. It must distinguish carefully between the interpretation of the positive law and any critical appraisal or proposal of change in it." (16)

Anzilotti believed that positive law "consists of the legal provisions which are created in a given social organization through the processes which it has established for the enactment of legal rules." (17) All other aspects, the jus condendum of the law, were deemed irrelevant elements in an analysis of the nature of law. (18)

a. Opposition to Natural Law

Unsurprisingly, Anzilotti's positivist conception antagonized the influence of natural law in international relations. (19) His strongest challenge to the traditional doctrine is expressed in his critique of Herbert Spencer's Justice. (20) Anzilotti defined natural law as "a law pre-existing any empirical reality, flowing from the invariable essence of human nature, and therefore absolute and eternal," (21) a "traditional detritus" which had to be discarded to "reconstruct the system of norms... on the basis of a more rigorous and precise conception." (22)

He criticised the fundamental premises of natural law theory, as he claimed that a law "which is shaped by reason only through logic must in no way correspond to the reality in which law lives and accomplishes its functions." (23) Yet, to fully confront and formally reject all notions of non-positive law Anzilotti had to extensively focus on a clear theory of sources in international law. (24)

b. Theory of Sources in International Law

The fundamental premise of Anzilotti's revised theory of sources is that all rules of positive law must originate in a voluntary act of one or more of the subjects of that order (25) and that each legal system has the authority to determine its source of law. (26) However, international law at the beginning of the twentieth century offered a fragmented scenario where multilateral treaties were scarce and custom was a preponderant source of legal obligations. As a consequence, Anzilotti's positivist premises were ill suited to encompass the reality of international law unless a persuasive encapsulation of the anomalous forms of law as norms of positive law was formulated.

Custom in International Law

Given the premise that law can only derive from the will of states, categorisation of custom as positive law is difficult. In this ambit, Anzilotti reinforced traditional positive doctrine and conceived custom as a pactum tacitum or a treaty in which the State's consent is implicit and inferred from the uniform conduct (diuturnitas) and conscientious belief in a binding legal obligation (opinio juris sive necessitatis). (27) Despite the decline of legal positivism, this distinction remains authoritative today. It assumes that custom is positive law because of an imputed consent or acquiescence. (28)

Municipal Law in International Law

Positivists also struggled to envisage a coherent role for municipal law in the international arena. Anzilotti himself varied his conception of the role of municipal law throughout his career. Initially commenting on a judgment of the Italian Corte di Cassazione in 1894, he presupposed a limited role for domestic law in the international setting. (29) By 1910 he was firmly convinced that "in no way may case-law adequately build up an international custom. Judgments... cannot give life to the collective will of the States. Even when the judgments are concurring, they are always separate and autonomous expressions which are thus inadequate for blending into a new element which may englobe and replace them." (30) This view embodied the quintessential positivist doctrine which required a complete segregation of national and international legal systems.

After another sixteen years, Anzilotti reverted to his former belief and in the Chorzow Factory opinion (31) the Court held that "municipal laws are merely facts which express the will and constitute the various activities of State, in the same manner as do legal decisions or administrative measures." (32) Anzilotti ultimately addressed this issue in his third edition of the Corso and confirmed that a state's "legislative activity is taken into consideration by international law, not as such, but as a behaviour of the state which is internationally relevant." (33) In particular Anzilotti would include as valid indications of international law statutes which ensured particular conduct but were not determined by a special interest; judicial precedents which constantly applied certain principles aiming at the safeguard of certain needs at the international level, and acts of administrative authorities taken for similar reasons. (34) Anzilotti's final conclusion, somewhat at odds with a pure positivist conception, corresponds to modern international legal doctrine which recognises that judicial precedents and domestic statutes can be relevant to establish a state's legal belief when determining the existence of custom. (35)

c. Exceptions to the Will of States

To coherently represent reality, Anzilotti's view of international law had to admit some greater exceptions. Anzilotti was forced to admit that not all law was generated by the voluntary consent of states and that, in exceptional cases, non-international state acts could be sufficient to formulate the basis for international customary law. (36) We have already seen how Anzilotti was willing to permit domestic statutes and judicial precedents to bear a limited role in international law.

Pragmatically, it makes sense that these clear and visible expressions of a nation's intent be relevant for establishing that nation's international obligations. On the other hand, it is hard to consider these domestic-oriented acts as evidence of a nation's voluntary intent to be bound in the international sphere. (37) An unpersuasive justification of this approach could be to recognise these acts as quasi-promises made by the state on the international plane, which could estopp the state from later withdrawing the promise when acted upon in reliance by another party. A more simple explanation is that these acts formed unjustifiable exceptions to the overarching principles of positivist law.

Anzilotti also recognised as an exception to his theory of positive law certain "constructive rules" or certain norms which are both proper and necessary for the correct fulfilment of the other norms of public international law. (38) These are essentially administrative and procedural ground rules which, using a sportive metaphor, are not the rules of the game but the necessary premises for the game to be played and are thus implicitly recognised by the referee, the players and the spectators. Clearly these constructive rules are not orthodox positivist constructions. Only with difficulty can one assert that by consenting to a particular rule a nation has consented to that rule and all the necessary and proper inseparable minor clauses that that first rule created. In reality, these constructive rules arise because of the exigencies of efficiency and necessity and not through consent.

Related to constructive rules are secondary norms of legal production. These are norms which permit the modification of legal duties without the express consent of the norm's addressees. They included the power of the League of Nations to modify its Covenant without the express consent of all its member states. To justify these norms traditional positivist legal thought stretched the notion of consent, so that the "binding force of ... a secondary rule on the legal production... is always the consent of the states bound to them [by means of a primary rule.]" (39) Again, the flaw in this conception is the attempt to reconcile the irreconcilable; a state cannot consent to all legal implications of a given norm as there are some consequences it is willing to avoid. On the other hand limiting legal norms only to those consequences which a state expressly consents to would render the international legal system sluggish and inoperative.

A positivist conception of international law based on the voluntariness of all legal norms, would also poorly explain how a new state would be bound by the pre-existing rules without its explicit consent. Anzilotti suggests that new states are bound to the general principles of international law by virtue of their accession into the international community. This presupposes some form of social contract whereby states consent to be bound by existing norms in exchange for an active participation in that community. (40) Such a conception stultifies, by means of an ingenious artifice, the fundamental proposition that a state is bound only to the international rules to which it has voluntarily consented.

d. Nature of Law

Anzilotti's merit lies equally in his jurisprudence and in his judicial pragmatism. Just as he rejected the dogmas of natural law so he frequently changed his conception of law to account for the realities of the world he was adjudicating. One area of continuous redevelopment was Anzilotti's perception of the nature of law.

Anzilotti's early perspective on the nature of law identified the binding character of law in a "moral concept [rather] than a legal principle." (41) Especially in the field of "international relations, in which less complete evolution gives greater uncertainty to the boundaries between morals and law... the ultimate reason why states comply... is not a legal reason, but an ethical idea." (42) This view endorses Triepel's standpoint that "legal explanation of the binding character of law is impossible" (43) and is not distant from the natural law perception of legal norms as binding by means of abstract superior principles. Meanwhile Anzilotti disavowed the influence of Austinian positivism in international law. He rejected the theory of law as commands by a political superior to a political inferior because of the equality of states in international law, so that there could be no legally superior state commanding an inferior to state to obey. (44)

Yet, in 1906 Anzilotti embraced the more traditional positivist conception, and in reaffirming that no superior power could exist whose will could determine the law, he acknowledged that the "only will which can be the source of legal rules is therefore the will of the states themselves." (45) Morality was thus ultimately relegated to a secondary stance and positive law became the sole foundation to his legal construct. However, coercion remained an essential feature to explain the binding force of law. In the first edition of the Corso in 1914, Anzilotti asserted that as states were not subject to a superior body it "is the state whose right has been violated that must exert direct and personal coercion in order to obtain redress. Thus, self defence, which is the exception in state organizations, is the rule in the society of states." (46) This statement indirectly portrays the realism of Anzilotti's jurisprudence - this vision of a self-help framework of international law was published months before the Great War.

But this voluntarist conception of international law is flawed in its simplicity. In fact, if a state's subordination to international law is entirely dependent upon the state's act of will, "no dialectic effort could demonstrate that such same state could not by another act of will, free itself from its obligation." (47) Therefore, if all states are equal, and State A joins a Multilateral Treaty with State B and C, its adherence based on its will, State A can simply terminate its adherence by changing its will and revoking its obligation. If, there is no entity or rule superior to its will, the State is effectively, a bandit in a lawless land. From this deficiency the need to find a superior form of law that can command all states to obedience and form the basis of international law. Rather than elevating a state over others (as a police state of the twenty first century) Anzilotti preferred to subject all states to a greater norm. He chose for this purpose the principle of pacta sunt servanda compelling a state's performance with the terms of the accordo to which it was a signatory. (48)

Anzilotti clarified how once a state has consented to an agreement with other states, the norms

"resulting from it cannot be modified by any one of the parties to it with a unilateral act of will, because by the agreement the individual wills of the parties to the agreement merge into the common will which henceforth constitutes a binding rule of law... Thus while the will of the state is essential for the creation of the common will resulting from the agreement, it is the common will, not the will of the single states, which is the source of international obligations." (49)

Therefore when the will of several states is reunited in an accordo it assumes a character of will which is higher than "that of individual states and is capable of imposing on their conduct some positive rules." (50) Thus pacta sunt servanda is: "the basic norm according to which States should behave as they have agreed to do with other States, [and it] represents the criterion that determines which norms are part of the international legal system and that formally distinguishes them from norms pertaining to the various municipal laws." (51) While the state de facto loses some degree of freedom once it concludes an agreement, the underlying premise remains that "states are bound because, and so far as, they wish to be bound. Even the obligatory force of the pacta sunt servanda is derived from nothing other than the collective will of the states." (52)

Anzilotti's view of pacta sunt servanda as the ground norm of international law presents a radical shift from his initial conception of international law. The binding nature of law is its contractual origin; (53) the voluntary contract to which the State has agreed to subject itself. All other moral concerns are necessarily excluded. Furthermore, if pacta sunt servanda is taken as the premise, the following consequences must follow: natural law, comitas gentium (social rules and etiquette), works of jurists and exigencies of justice and social life cannot be legally relevant as they do not stem from a state's will when ratifying an agreement. Likewise general principles of law are only binding insofar as a state has consented to recognize them and judicial decisions are not normative but declarative of the case decided. (54) We shall see how the coherence of Anzilotti's positivist theory is upset when the PCIJ is forced to consider some of these excluded elements and recognise them as legally binding.

e. Dualism - Relation of National and International Law

Anzilotti's contribution to international law consists of a profound understanding of both public and private international law. Apart from a detailed study of the law of state responsibility, Anzilotti extensively analysed the interrelation of national and international law.

The orthodox positivist conception differentiates national and international law in terms of sources, subjects and scope of the law. (55) "International law stems from the collective will of several states, while rules of municipal law are always the expression of the will ... belonging to a State." (56)

Anzilotti believed in the substantial difference of the two systems of law, for example conceding that municipal law displayed the Austinian superior legislator / inferior subject dichotomy while rejecting this notion on the international plane as all states were equal subjects coordinating a mutual relationship of coexistence. (57) The subjects of national law are individuals and they cannot be subjects of international law until they acquire personalitá or international legal capacity, an improbable development at his time. (58) The scope of these systems was also different; international law could not affect domestic arrangements, and in principle, municipal law had no bearing on the international plane. (59)

This carefully formulated doctrinal distinction of the legal systems will be shaken by some of the judgments of the PCIJ, and Anzilotti's own perception changes to accommodate some of these legal developments.

Arguably the most important attribute of the international/national distinction drawn by Anzilotti is the different default rule for these legal structures. Anzilotti endorsed a minimalist role for international law - all that is not expressly forbidden is permitted following the in dubio pro libertate principle. (60) The state has unfettered supremacy on the international sphere, being bound only by the rules to which it has consented. In fact, Anzilotti would have accepted the operation of supremacy and voluntarism even to the extent that he believed a state could have legitimately consented to the termination of its own existence. (61) In municipal law instead, an individual is always bound by the rule the legislator enacts regardless of his consent to its application.

III. Conclusion - Assessment of Anzilotti's Jurisprudential Stance

Before considering the influence of Anzilotti's jurisprudence on the judgments of the PCIJ, it is worth summarising in which ways Anzilotti contributed to the jurisprudence of international law of the beginning of the century.

Quite clearly Anzilotti accepted the fundamental premises of legal positivism such as the firm rejection of natural law and any external influence of politics, morality and social sciences in the consideration of legal norms. Yet Anzilotti disapproved of a priori schematic notions of law thereby frequently sacrificing the clarity and symmetry of positivist jurisprudence. (62) In short, positivism was a limit on the scope of his jurisprudence but did not serve to formulate new insurmountable dogmas. (63)

Furthermore, despite the nuanced shift from pure positivism (international law wholly derived from the will of states) to an acceptance of the Grundnorm principle, the underlying methodology is always consistent with a fundamental research for the foundation of positive law in what results to be from an empirical research, as the effective conditions of existence of a particular society. (64)

IV. Anzilotti as a Jurist:

While Anzilotti was both a leading judge and President of the PCIJ a lot of his "important and treasured work... remains secret, in accordance with Article 54 paragraph 3 [of the PCIJ Statute which established that] the deliberations of the Court shall take place in private and remain secret." (65) Yet, a former President of the International Court of Justice, Judge José Maria Ruda, discerned from the case law of the PCIJ extracts which he could safely ascribe to Judge Anzilotti. (66) I will address those same extracts and other dissenting opinions expressly compiled by Anzilotti to try to understand how the Court and Judge Anzilotti interacted.

Nature of International Law

Case of S.S. Lotus

Even if the rarity of the judicial decisions to be found among the reported cases were sufficient to prove in point of fact the circumstance alleged by the Agent of the French Government, it would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international legal custom. (67)

This paragraph, which "unmistakably corroborated the view of Judge Anzilotti," (68) echoes the positivist conception of custom as a tacit agreement between states. The essence being that proving extensive state practice is insufficient unless supported by opinio juris confirming a legal obligation to accept the voluntary limitation on the state's freedom. (69)

"international law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed" (70)

This paragraph of the Court's opinion is another centrepiece of legal positivism. The Court endorses voluntarism, upholds a doctrine of sources based on treaties, custom and general principles, and refuses to presume restrictions on the independence of states. The Court and Anzilotti are thinking in unison, together they outlaw natural law from the international legal sphere. By extending the principle, it is clear how if states can only be bound by what they have agreed to and enjoy complete freedom in all other aspects, there can be no notion of "fundamental rights of states" (71) nor any "innate" right from which states could derive either authority or which could subject them to particular restrictions. (72)

As a matter of procedure, the Court also adopted Anzilotti's view that if "it cannot be proved that there exists a rule supporting the plaintiff's demand, the court must decide in favour the defendant. This is consistent with the spirit of the international order. Every state is free in its international relations [apart from the obligations which it has accepted.]" (73)

Dualism

Case Concerning German Interests in Upper Silesia (Chorzow Factory)

"municipal laws are merely facts which express the will and constitute the activities of States, in the manner as do legal decisions or administrative measures." (74)

Electricity Company of Sofia and Bulgaria

"In cases of this kind, either the contradiction [between international and state law] is only apparent and the two rules are really coordinated so that each has its own sphere of application and does not encroach on the sphere of application of the other, or else one prevails over the other, i.e., is applicable to the exclusion of the other." (75)

We have previously seen how Anzilotti's conception of dualism and the role he assigned to municipal law varied in time. Chorzow Factory interprets municipal law as a possible indicator of positive law a conception which Anzilotti will only adopt the following year in his third edition of the Corso.

On the other hand, Anzilotti maintained a stronger belief in the underlying incompatibility of international and municipal legal systems than the Court ever acknowledged. (76) Anzilotti was also hostile to a hierarchical conception of laws; neither national nor international law could be superior to the other, for as a matter of doctrine, there was no area of law in which the two legal systems could overlap as they derived from different sources and applied to different subjects. (77) In this ambit the Court's opinion in the Electricity Company Case differs from Anzilotti's. We can perceive the Court's approach as more functional, quicker to adapt to the realities of a world where the exact confines of state and international entities are not clearly defined.

As a consequence of Anzilotti's belief in the complete segregation of the national and international legal system he also did not believe international treaties could create individual rights unless they were incorporated in national law. (78) Once again the Court adopted a less restrictive position in Jurisdiction of the Courts of Danzig. (79)

Sources of Law

Case Concerning the Legal Status of Eastern Greenland

"an unlawful act cannot serve as a basis for an action in law" (ex turpi causa non oritur action) (80)

"on the basis of that agreement which, as between the Parties, has precedence over general law, that dispute ought to have been decided." (lex specialis derogate lex generalis) (81)

Case Concerning German Interests in Upper Silesia (Chorzow Factory)

"one party cannot avail himself of the fact that the other has not fulfilled some obligation ... if the former party has, by some illegal act, prevented the latter from fulfilling the obligation in question..." (82)

Case Concerning Interpretation of Judgments 7 and 8

"It is moreover, clear that, under a generally accepted rule which is derived from the very conception of res judicata, decisions on incidental or preliminary questions which have been rendered with the sole object of adjudicating upon the Parties' claims (incidenter tantum) are not binding in another case. (83)

Case Concerning Diversion of Water from the Meuse

"I am convinced that the principle ... (inadimplenti non est adimplendum) is so just, so equitable, so universally recognised, that it must be applied in international relations also. In any case, it is one of these "general principles of law recognised by civilized nations" which the Court applies in virtue of Article 38 of its Statute." (84)

The Electricity Company of Sofia and Bulgaria

The Treaty being of later date than the Declarations, it is in the text of the former that we must seek the intention of the Parties in regard to rules previously in force. (lex posterior derogat priori) (85)

During the twenty four years of its existence, the PCIJ occasionally resorted to general principles as a source of law as was permitted in the PCIJ Statute. A pure positive doctrine would only have accepted general principles of law if the state had consented to their application in legal disputes to which it was party. Yet, the PCIJ often preferred practicality to doctrinal purity and accepted their application in international law. Especially when the Court is considering the principles of res judicata, lex specialis and ex turpi causa, the application of these principles can be equated to the constructive rules which Anzilotti had recognised and donned with legality.

Equity as a Tool of Interpretation

Lighthouses in Crete and Samos

"That being so, a strict application of the conditions governing the subrogation referred to in Article 9 is not only in harmony with the rules for the interpretation of texts, but also in conformity with the requirements of equity." (86)

The greatest divergence from positive doctrine comes in the Court's acceptance of equity as a source or standard of law. Equity as a legal system or as a mode of legal interpretation has a minimal standing in positive law as it can hardly be considered a product of the state's voluntary consent. However, especially in their interpretative roles the Court and Anzilotti preferred functional interpretations in light of principles of justice and equality. Anzilotti was exceptionally "generous with the drafting of interpretation rules" (87) frequently resorting to the context of the case when an objective interpretation of the statutes produced textual arguments which were "seldom convincing." (88)

Role of the Court

Anzilotti's view of the PCIJ is powerfully conveyed in his speech at the Court's inauguration. Highlighting two misunderstandings which were plaguing the public's appreciation of the Court he stated that: "there are two categories of persons: those who envisage the Court as the opening up of a new epoch of international relations, and those who cannot mention the Court without a mocking smile on their lips or in their hearts. Both categories are mistaken, and the first rather more than the latter." (89) Thus the Court's role was to "facilitate and develop the solution according to law, not of the great international conflicts, but of the ordinary disputes which to-day are less adequately dealt with by diplomacy..." (90)

Anzilotti perceived the Court as an international organ able to readily administer an impartial justice and solve many of the controversies which had previously exacerbated international relations. Anzilotti was also convinced that once the Court's opinion had been requested its judgment was binding on the parties and deserved the sanctity proper for a tribunal regardless of the limited enforcement possibilities or the somewhat unique structure of its administration compared to traditional municipal law courts. (91)

V. Conclusion

Clearly Anzilotti's positivist conception is outdated in its perseverance on certain aspects which time has shown to be unimportant. An arduous resistance on the duality of international and municipal legal systems is incomprehensible in a world where international organizations and multilateral treaties have entered municipal systems, and individuals have, in limited circumstances, obtained international legal personality.

Similarly Anzilotti's obstinate effort to "eradicate any influence of natural law from the doctrine of international law, had gone too far," (92) and pursued an idealized conception of international law governed only by cognizable positive law. As a consequence, his view of international law collapsed quite independently of the Court's jurisprudence. Professor Sereni aptly describes the underlying fallacy: by relying exclusively on pacta sunt servanda to justify the binding character of international law the existence of "a previous and superior norm which would bind the states to respect their agreement establishing the rule pacta sunt servanda should also be admitted" and the principle would continue ad infinitum always requiring a superior norm from which to derive the superior legal principle. (93) Anzilotti acknowledged this view in his final work. He recognised pacta sunt servanda as the ground norm, the postulate which could not be "demonstrated from the point of view of the order itself." (94) However, Anzilotti also conceded the existence of other general international rules whose existence could not be proved through the theory of a state's voluntary consent such as the freedom of the high seas and a basic standard of diplomatic immunities. (95) As the sanctity of positive law was diluted with the acceptance of non-positive laws gradually the whole theory of positivism shattered. A system which rested on so simple a premise could not concede such a structural flaw and the admission by the most authoritative positivists that certain rules of international law were not voluntary marked the waning of positivist doctrine in general. (96)

Yet, while his doctrine and theories might appear outdated, his methodology was an inestimable contribution to the work of the PCIJ and international law as a whole. His empirical analysis, matching his legal reasoning to the realities of the facts before him, and his distaste for formalistic approaches, whether couched in positivist or natural law are lessons from which we might still learn.

Notes

1. O. Spiermann, International Legal Argument in the Permanent Court of International Justice, Cambridge University Press, 2005, p. 139.

2. O. Spiermann, op.cit., p. 136.

3. José Maria Rada, "The Opinions of Judge Anzilotti at the Permanent Court of International Justice", European Journal of International Law, 3 (1992), p. 101; O. Spiermann, op.cit., p. 7.

4. Anzilotti's scholarship includes several editions of the 'Corso di Diritto Internazionale' published and translated in several languages and for years a foundational text for international legal scholars. For a full list of his works see Antonio Tanca, "Dionisio Anzilotti: Biographical Note with Bibliography", European Journal of International Law, 3 (1992), p. 156.

5. Anzilotti served as judge for the entire existence of the tribunal, from 1922 to 1946, and was President from 1928 to 1930. Professor Max Huber's speech at Anzilotti's election for PCIJ President commented how : "Dès la première heure, vous avez collaboré à l'établissement du Statut et si les arrêts et avis de la Cour répondent dans un mesure considérable aux espérances que le monde a mises en ce tribunal, une part très grande, vraiment décisive, en est due à vous, a votre travail dévoné, inlassable, consciencieux, intelligent." Tomaso Perassi, "Dioniso Anzilotti Commemorazone letta all'Accademia Nazionale dei Lincei", Rivista di Diritto Internazionale, (1953) p. 16; Professor Huber also stated how he considered Anzilotti: 'der feinste und schärfste juristische Geist, der mir im Leben begegnet ist' ("the finest and sharpest legal mind whom I have ever met") O. Spiermann, op.cit., p. 276. Judge Ruda, Judge and President of the International Court of Justice commented how "Anzilotti made an outstanding contribution to the jurisprudence of the Permanent Court of Justice from the very first years of its existence, when it was necessary to consolidate its prestige and to create faith and confidence in that new institution, which stood in the vanguard of the emerging idea that disputes and conflicts between states could always find a solution through the fair and just application of the law" J. Rada, op.cit., p.122.

6. For a brief biographical outline, see A. Tanca, op.cit, p. 156.

7. However, according to Professor Gaja Anzilotti's positivist basis was not wholly coherent and still presented some minor inconsistencies supporting the natural law perception. Giorgio Gaja, "Positivism and Dualism in Dionisio Anzilotti", European Journal of International Law, 3 (1992) p. 130.

8. Angelo Piero Sereni, The Italian Conception of International Law, Columbia University Press, 1943, p. 207.

9. A. Sereni, op.cit., pp. 207-208.

10. Ibid.

11. Favoured by the Italian Risorgimento and which based the "solution of problems of international la upon political, not legal, considerations." A. Sereni, op.cit., p. 211.

12. In particular the works of Professor Pasquale Fiore, A. Sereni, op.cit., p. 210.

13. Dionizio Anzilotti, Corso di diritto internazionale. Introduzione e teorie generali, Roma, Athenaeum, 1928.

14. Positivist scholars recognised the influence of political, economic and sociological factors in the development of law, but refused to consider them in a jurisprudential analysis "since their source and validity are different, any mingling and confusion would lead to the attribution of some factors of a value which belongs to others." D. Anzilotti, op.cit., p. 17 (translation in English by A. Sereni).

15. Categorisation was obtained "by placing the scattered rules of international law under the appropriate general principles from which they are derived [only then] is it possible to grasp their meaning and implications, to reconcile their apparent contradictions, and to find a solution." A. Sereni, op.cit., p. 212.

16. D. Anzilotti, op.cit., p. 18 (translation in English by A. Sereni).

17. Tantamount to the rule of recognition for H.L.A. Hart, The Concept of Law, Oxford University Press, 1994; A. Sereni, op.cit., p.210.

18. Ibid.

19. A typical tenet of positivist legal doctrine.

20. D. Anzilotti, La scuola del diritto naturale nella filosofia giuridica contemporanea: A proposito del libro di H. Spencer, "Justice", Le Monnier, 1892.

21. D. Anzilotti, op.cit., p. 16 (translation of the text in English by A. Sereni).

22. Ibid. (translation in English by G. Gaja). Yet, Anzilotti recognized an "anima di verità" (soul of truth) in natural law. In particular, in his conception of international law with all states subject to a superior norm (what I will later discuss as the Grundnorm) he sees the traditional degree of authority, and ethical superiority associated with natural law's obedience to a superior moral norm. D. Anzilotti, Scritti di Diritto Internazionale Pubblico, Cedam, 1956, p.61.

23. D. Anzilotti, Studi di Diritto Processual Internazionale e di Filosofia del Diritto, Cedam, 1963, p.691, (translation in English by G. Gaja). In particular in international law he objects the construction of a legal system built through fantasy, and then objectifying the ideal with a subjective view of law of nature. P. Ziccardi, "Caratteri del Positivismo dell'Anzilotti' Lincei", Rivista di Diritto Internazionale (1953), p. 25.

24. A. Sereni, op.cit., p.215.

25. Ibid. International legal norms can only result from "state acts in the field of international relations, which show their will to be bound to behave in a certain way." G. Gaja, op.cit., p.131.

26. A. Sereni, op.cit., p.215.

27. A. Sereni, op.cit., p.210-220.

28. M. Shaw, International Law, Cambridge University Press, 2008, p. 75, custom arises out of the "belief that [the] state is acting because of an obligation to be bound."

29. D. Anzilotti 'Competenza di Tribunali Italiani in confronti di Stati Esteri' 46 Giurisprudenza Italiana (1984), commented by Professor Gaja in G. Gaja, op.cit., p.133.

30. D. Anzilotti, 'L'esenzione degli Stati stranieri nella giurisdizione' (1910) 5 Rivista di Diritto Internazionale (translation in English by Gaja).

31. A portion of the judgment which Professor Gaja believes bears distinctive features of Anzilotti's writing, G. Gaja, op.cit., p.137.

32. Factory at Chorzow (Germ. v. Pol.), 1927 P.C.I.J. (ser. A) No. 9 (July 26) [19].

33. D. Anzilotti, op.cit., pp. 54-55, (translation in English by A. Sereni).

34. D. Anzilotti, op.cit., pp. 99-100 (translation in English by Gaja).

35. M. Shaw, op.cit., p. 83.

36. D. Anzilotti, op.cit., p. 74.

37. The third category does not "completely tally with Anzilotti's theoretical premises" G. Gaja, op.cit., p. 132.

38. Constructive rules are the "logical premises and the necessary logical consequences of those norms [that] are [already] part of international law, because the will to observe a norm or an ensemble of norms implies the will to observe all those norms without which the former ones would make no sense or which are logically included in them," D.Anzilotti, op.cit., p. 67 (translation in English by Gaja). See also A. Sereni, op.cit., p. 249.

39. T. Perassi, Lezioni di Diritto Internazionale, Roma, 1937 reported in A. Sereni, op.cit., p. 219.

40. D.Anzilotti, op.cit., p. 85.

41. D.Anzilotti, op.cit., p. 57 (translation in English by Gaja).

42. Ibid.

43. G. Gaja, op.cit., p. 127.

44. A. Sereni, op.cit., p. 214. Strict adherence to the Austinian principles in international law would have undermined not only its character as "positive law" but also its inherent legality. Roberto Ago, Scienza Giuridica e Diritto Internazionale, Giuffrè Editore, 1950, p. 23.

45. A. Sereni, op.cit., p. 215.

46. D. Anzilotti, Corso di Diritto Internazionale, Athenaeum, 1914, p. 28 (translation in English by Sereni).

47. A. Sereni, op.cit., pp.215-216.

48. Ibid; "Pacta sunt servanda is the "necessary source of the binding force, of all norms of international law including customary rules." G. Gaja, op.cit., pp. 127, 137.

49. A. Sereni, op.cit., p. 216.

50. D. Anzilotti, op.cit., p. 34 (translation in English by G. Gaja); Ziccardi, op.cit., p. 23.

51. D. Anzilotti, op.cit., p. 53 (translation in English by G. Gaja); O. Spiermann, op.cit., p. 75.

52. D. Anzilotti, 'Note' Rivista di Diritto Internazionale, 7, (1913)(translation in English by A. Sereni).

53. See the minor distinction drawn in 1923 but then modified by Anzilotti in 1928, when he had sought a formalistic distinction between trattati-contratti and trattati-normativi, whereby only the later were accepted as legally binding, A. Sereni, op.cit., p. 216.

54. A. Sereni, op.cit., pp. 217-218.

55. A. Sereni, op.cit., p. 225.

56. D. Anzilotti, op.cit., pp. 319-320, (translation by G. Gaja).

57. Equality of states means "only that one of them cannot claim from the others any concession or any restriction in their activities which does not have its formal base in their free will, consecrated by international agreement." A. Cavaglieri, Lezioni di Diritto Internazionale, Casa Editrice Rondinella Alfredo, 1934, p. 7 (translation in English by A. Sereni). See also D. Anzilotti, op.cit., pp. 319-320; A. Sereni, op.cit., pp. 213-214.

58. A, Sereni, op.cit., pp. 226, 229-231.

59. A. Sereni, op.cit.., p. 226; vice versa "a rule of public international law can be effective as to subjects of a State only in so far as it is transformed by the State itself into part of its own legal system" R. de Nova, 'New Trends in Italian Private Law', Law and Contemporary Problems, 28, (1963), pp. 808, 810.

60. D. Anzilotti, Cours de Droit International, Recueil Sirey, 1934, pp. 114-119.

61. A. Sereni, op.cit.., p. 235 referring to Anzilotti's opinion on the Free State of Congo in D. Anzilotti, 'L'Annessione del Congo' Rivista di Diritto Internazionale, 4, (1909), p. 237; D. Anzilotti, op.cit., p. 58 : "toute activité de l'Etat... est protégée par le droit international dans ce sens qu'il interdit aux autres Etats de limiter, sans un titre juridique particulier, le libre développement de ladite activité."

62. O. Ferrajolo, 'Il Contributo di Dionisio Anzilotti al progetto italiano del Patto delle Società delle Nazioni' (Symposium on 'Dionisio Anzilotti, il diritto internazionale nei giudizi interni', Borgo a Buggiano, September 2005).

63. P. Ziccardi, op.cit., p. 24.

64. "La caratteristica piu' spiccata dell'opera dell'A, diviene la scrupolosa aderenza alla realta' concreta, la cui determinazione costituisce opera di ricostruzione e anche di interpretazione storica, nel concetto che la conoscenza concreta della vita sociale e' appunto opera di interpretazione storica." P. Ziccardi, op.cit., p. 26. See also O. Ferrajolo, op.cit., p. 60.

65. J. Rada, op.cit., p. 121.

66. See generally J. Rada, op.cit.

67. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7) [76].

68. O. Spiermann, op.cit., p. 260.

69. Anzilotti's definition of custom "actes des Etats dans le domaine des relations internationales, desquels résulte leur volonté de se comporter réciproquement et obligatoirement d'une certaine manière. " D. Anzilotti, op.cit., p. 74.

70. S.S. Lotus (Fr. v. Turk.) [44].

71. A. Sereni, op.cit., p. 234.

72. Ibid.

73. A. Sereni, op.cit., p. 224.

74. Factory at Chorzow (Germ. v. Pol.) [19].

75. Electricity Company of Sofia and Bulgaria (Belg. v. Bulg.), 1939 P.C.I.J. (ser. A/B) No. 77 (Apr. 4) [124].

76. A. Sereni, op.cit., pp. 226-227.

77. Ibid.

78. [The Court's opinion in Jurisdiction on Danzig] "ne dit pas qu'un traité, comme tel, peut créer des droits et des obligations pour des individus, sans besoin que les règles y afférentes soient incorporées dans le droit interne. " D. Anzilotti, op.cit., pp. 407-408.

79. Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928 P.C.I.J. (ser. B) No. 15 (Mar. 3) [37] "It may be readily admitted that... an international agreement, cannot, as such, create direct rights and obligations for private individuals. But it cannot be disputed that the very object of an international agreement, according to the intention of the contracting Parties, may be the adoption by the Parties of some definite rules creating individual rights and obligations and enforceable by the national courts."

80. Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser. A/B) No. 53 (Apr. 5) [308].

81. Legal Status of Eastern Greenland (Den. v. Nor.), [301].

82. Factory at Chorzow (Germ. v. Pol.),[87].

83. Interpretation of Judgments Nos. 7 and 8 (Germ. v. Pol.),1927 P.C.I.J. (ser. A) No. 13 (Dec. 16)[74].

84. Diversion of Water from Meuse (Neth. v. Belg.), 1937 P.C.I.J. (ser. A/B) No. 70 (June 28)[211].

85. Electricity Company of Sofia and Bulgaria (Belg. v. Bulg.),[126].

86. Lighthouses in Crete and Samos (Fr. v. Greece), 1937 P.C.I.J. (ser. A/B) No. 71 (Oct. 8) [38-39].

87. O. Spiermann, op.cit., p. 94.

88. O. Spiermann, op.cit., pp. 328-330 suggesting a conflicting preference of the Court for the "national principle of self containedness and [thereby resorting exceptionally to] preparatory work in the interpretation of a text [when] that was not clear." On the other hand, Professor Bin Cheng suggested that the Court often pursued a purposive rather than literal interpretation of the intention of parties with Judge Anzilotti often preferring to go "much further than the Court." See also Bin Cheng, 'General Principles of Law as Applied by International Courts and Tribunals', London, Stevens & Sons, 1953, p. 116; and for an analysis of Anzilotti's role in the interpretation of the Convention of 1919 concerning the Employment of Women during the Night, Advisory Opinion 1932, Charles Cheney Hyde, 'Judge Anzilotti on the Interpretation of Treaties' American Journal of International Law, 27, (1933), p. 502.

89. O. Spiermann, op.cit., p. 146 quoting the translation by Hammarskjöld of the speech by Anzilotti.

90. Ibid.

91. Judge Anzilotti claimed that "il y a donc toujours, explicite ou implicite, un jugement de la Cour sur sa propre compétence que les parties sont tenues d'accepter et de respecter. Si la Cour s'est trompée, cette obligation des parties n'en subsiste pas moins, en vertu de leur propre volonté. " reported in O. Spiermann, op.cit., p. 204.

92. A. Sereni, op.cit., p. 244.

93. Ibid.

94. "This principle because it is the basis of the rules of international law, cannot be demonstrated from the point of view of the rules themselves. It must be assumed to have absolute, objective value or as an original hypothesis which cannot be demonstrated. The whole body of international law is necessarily based upon it." D. Anzilotti, op.cit., p. 43 (translation in English by Sereni).

95. A. Sereni, op.cit., p. 220.

96. A. Sereni, op.cit., p. 249.