The World Court (Vol. I, No. 2, Sept. 1915)

by Various

THE COMPOSITION OF THE WORLD COURT

BY

EMERSON McMILLIN

“Barbarians in ancient times settled their differences with whatever tools came ready to hand. Cultured, refined, and scientific pagans to-day do nothing more, nothing less. Must this continue for all time? Yesterday, hundreds were pleading for saner methods; to-day, thousands plead; to-morrow, millions will demand a better way of settling international differences. What is wanted is some way not based on brute force, but upon the principles of mutual trust and good-will.”

Prior to the Christian era, but little effort was made to avoid war. The normal attitude of Rome, Greece, and of Carthage was one of continuous preparation for war. The Greek City-States did, however, have an organized body empowered to arbitrate differences between the Hellenic peoples.

In the fourteenth, fifteenth and seventeenth centuries, serious efforts were made to devise and establish means for the avoidance of war, but success crowned none of the efforts.

It was after the Jay Treaty between Great Britain and the United States that the settling of international questions by arbitration came into vogue. The many cases successfully and satisfactorily settled between the two Anglo-Saxon nations have doubtless had their influence for good upon other races and states.

Notwithstanding the great advance made by the partial adoption of arbitration, as a mode of settling international controversies—wise men feel that another step forward should be taken through the establishment of a Court of Justice, a body which will ascertain facts and apply rules of law instead of resorting to negotiation or expediency in the familiar manner of Courts of Arbitration.

The growth of this desire is manifested in the records of the two Hague Conferences. In 1899 it was but necessary to suggest the creation of a World Court to have it promptly put aside as impracticable. After a lapse of but eight years the 1907 Conference adopted the following: “The Conference recommends to the signatory powers the adoption of the project hereunto annexed of a Convention for the establishment of a Court of Arbitral Justice and its putting in effect, as soon as an accord shall be reached upon the choice of the Judges and the Constitution of the Court.” This received the unanimous support of all the Conferees.

The happy result obtained is largely attributed to the work of the American delegation in its effort to carry out the instruction of Secretary of State, Elihu Root, which instruction reads as follows: “It should be your great effort to bring about in the second Hague Conference a development of the Hague Tribunal into a permanent tribunal, composed of judges, who are judicial officers and nothing else, and who will devote their entire time to the trial and decision of international causes by judicial methods and under a sense of judicial responsibility.”

The 1907 Hague Conference declared that “International Arbitration has for its object the settlement of disputes between states by judges of their own choice, and on the basis of respect for law.” That mode of obtaining the personnel of an Arbitration Court may be eminently proper, as “Arbitrators only too often act as negotiators and not as judges, trying a cause on its merits.” But causes that are justiciable should not be tried before a body of judges, especially chosen by the litigants.

Under the rules and constitutions agreed upon in the Hague Convention, there is no stipulation as to the number of signatories required, or of states that shall adhere, in order to make the plan available.

To-day, under that Convention, any number of the participants, who may find themselves in accord as to the number of judges to be chosen and the manner of their selection, may complete the unfinished work of the Conference by establishing a workable Court at The Hague. While the Hague Conference failed to agree upon the number of Judges that should constitute the International Court—yet fifteen appeared to be the favorite number in the minds of the Conferees.

The difficulties encountered by the Conference in attempting to constitute a Court were great. Many plans were submitted. The delegation from our own country presented no less than ten distinct plans, any one of which the delegation would have supported rather than have the Conference fail in completing the establishing of a Court.

One of the plans submitted to the Conference provided that each state should name one judge. This would have made an unwieldy body—“a judicial convention instead of a judicial court,” as was suggested by an American delegate. Another plan submitted provided that each state should designate an elector from the permanent court of arbitration, and that these forty-five electors should select fifteen judges, to constitute the court. This seems fair, and there can be but little doubt that a court so chosen would have been a competent body. Article XV of the Convention establishing the International Prize Court, provides, that each of the eight nations, generally known as the world powers, shall always be represented, or in the language of the Convention, “are always summoned to sit.” While Germany, Austria-Hungary, Italy, Russia, France, Great Britain, United States and Japan are the great world powers, they are not the eight powers with the largest commerce. Belgium exceeds three and the Netherlands exceed four of the world powers in their respective aggregates of commerce. The majority of questions or controversies brought before a judicial court will doubtless arise through commercial channels.

The experience of the United States may be cited as an encouragement for small states to trust the other and more powerful states and to join with them in the selection of fifteen judges. The sections or states from which members of the United States Supreme Court are appointed seem to be a matter of absolute indifference to the American public. Forty-eight states represented by nine judges. Each of these forty-eight states is about as near a sovereign entity as are many of the states represented in the Hague Conference.

It is confidently believed that the several nations would strive with each other to give to an International Court their best men. This would be especially true of those states, whose limited population and restricted commerce would not alone entitle them to a national on the bench.

The necessity for an International Court is so obvious that it need not be discussed. The delegates of forty-five states would not have supported it at The Hague Conference, if there had not been a great desire, and a growing demand for it. The decisions of the Court in causes brought before it will not exhaust all its usefulness. The laws which largely govern the Anglo-Saxon race have grown out of customs sanctioned by Judicial decisions. It may be surmised that not a generation will have passed after the inauguration of an International Court, before International Law will have assumed a stability to which it has not hitherto attained. If, at some future Hague Conference, a convention shall be voted prohibiting belligerents from committing—in reprisal—acts which are otherwise prohibited by international agreement, it will be a long step forward, and will remove a pretext for the violation of international law. At present, almost any wrong may be legally committed by belligerents under the pretext of reprisal.

That the civilized world should desire the Court, and that the delegates from all the nations at an International Conference should unanimously support the effort to create the Court—are encouragements for us all to believe that a plan can be evolved that will meet the emergency temporarily, even if far from perfection. Quoting, in substance, a remark of a great statesman, “Even if one’s hopes may not be realized at once, that is no reason why we should not press forward in the direction in which we see possible success. What is impossible to-day may become possible to-morrow.”

THE MINIMUM NUMBER
OF NATIONS REQUIRED TO SUCCESSFULLY INAUGURATE A COURT OF ARBITRAL JUSTICE

BY

HARRY A. GARFIELD

The proposed Court of Arbitral Justice, is one which deals with rules of right existing or to be hereafter set up between sovereign nations. It is distinguished from the so-called “Permanent Court of Arbitration” established at the first Hague Conference in 1899, in this, that it is a true court, while the Court of Arbitration is a representative body of negotiators selected to settle questions largely political. Neither by its composition nor tenure is the Court of Arbitration qualified to deal with questions essentially judicial. The distinction is less difficult for Americans than for foreigners. The line which separates political from judicial functions, though by no means so clear as to be instantly perceived, is a line which every student of law and government in the United States must be able to trace. The settlement of a boundary dispute, of trade or industrial questions, while involving judicial questions, is usually, in international affairs, a question essentially or chiefly political. Questions of this kind can be settled by resort to compromise. On the other hand, if two nations are agreed as to the rule of right, that is to say, if there is in each a notion which has become fixed in favor of a certain course of conduct as just and of another as unjust, any question involving this distinction is essentially and primarily a question for a court of justice.

The International Court of Prize, established by the second Hague Conference, fulfils still another function. It is a war court, as its title indicates, and has no jurisdiction over controversies arising in times of peace. The Court of Arbitral Justice, now under consideration, while it may be called upon to deal with disputes arising out of war, is primarily intended to decide questions of law founded in justice in such manner and at such time as to prevent war. It is to be noted furthermore that the object is not merely to settle an issue temporarily. Temporary settlements are compromises and can be reached by resort to the Court of Arbitration. Questions of law must be so disposed of that each of the contending parties will immediately or in the long run assent to the basis of the settlement, not merely because it is according to law but because by common acceptation it is believed to be just. In other words, the chief function of the proposed court will be to guide and direct the hearts as well as the minds of men toward the eradication of those deep seated causes of difference which have plunged nations into war. In defending the method of balancing the departments of government set up in our constitution, Hamilton pointed out a truth which has become fundamental to the American student of Political Science. His observation is applicable to international affairs. “Justice,” says Hamilton, “is the end of government; it is the end of society; it ever has been and ever will be pursued until it be obtained or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy can as truly be said to reign as in a state of nature where the weaker individual is not secured against the violence of the stronger.” (Federalist 51).

One of my associates has described wars growing out of deep-seated differences between nations as earthquake wars. I like the expression, for it conveys to the mind the inevitable result accompanying fundamental differences which, boiling up within, crack the surface of our good intentions. The ultimate object of the establishment of a Court of Arbitral Justice is to prevent these abysmal disturbances which, if allowed to exist, will sooner or later destroy any institution, political or judicial, set up by the nations. The immediate object is to come to a common understanding of international justice, and to formulate rules for the conduct of nations based on that understanding.

At this point a difference appears which apparently contributed largely to the defeat of the Article of the first convention of the second Hague Conference, under which, had it been adopted, the Court of Arbitral Justice would quickly have come into existence. The relation of the judicial to the other departments of government under our constitutional system is radically different from that with which other nations are familiar. While there has of late been much agitation of the question whether the Supreme Court of the United States ought to be permitted to overrule the will of the people expressed through legislative bodies, it is nevertheless fundamental to our system that the Supreme Court stands above the legislative and the executive when a constitutional question is at issue. We have deliberately and wisely set over our institutions of government this great tribunal which protects the individual, whether the weakest human being or the latest artificial person created under the law. When the question of the composition of the Court of Arbitral Justice was under discussion at the Hague in 1907, M. Barboso of Brazil brought in a proposal providing for the equal representation of the 46 nations in the composition of the Court, dividing the whole body into three groups to serve for a period of three years each in the total of nine for which they should be chosen. This proposal was afterward withdrawn by its author, but the Significance of the suggestion lies in this, that the delegates from Brazil conceived of the Court as a body of representatives of the several powers. As has been frequently pointed out, such a body would be a judicial assembly, not a judicial court, better calculated to frame codes than to weigh legal principles. But the fact was that M. Barbosa did not believe in the plan of an International Supreme Court. To his mind and to the minds of all of those who oppose the American conception of the relation between the legal and political arms of government, such a court of justice would subordinate sovereignty. Such a court to their minds is inconsistent, as Mr. Scott has pointed out (Hague Conferences, vol. I, pp. 458–9), with the sovereignty of nations. At first sight, there appears to be little reason why the method agreed upon for the constitution of the International Prize Court should not be applied to the selection of judges for the Court of Justice. A little reflection, however, reveals an important difference. As already pointed out, the Prize Court is organized to settle international questions arising out of war. There is little objection, therefore, to the arrangement for rotation in office of the judges. When, however, as in the case of the proposed Court, there is set up a body which is given jurisdiction over questions of international rights with powers like those of a common law court to evolve by the cumulation of their decisions new rules of international law, it is easy to perceive why all the powers represented at the Hague agreed that the judges sitting in this court must possess the highest qualities of judicial mind and learning.

Enough has been said by way of introduction, to lead up to the main question, the minimum number of nations required to successfully inaugurate the court. Mr. Thomas Raeburn White, speaking at the third national conference of the American Society for Judicial Settlement of International Disputes, in December, 1912, analyzed the articles of the convention providing for the establishment of the court and showed that the question was clearly left to the powers represented at the conference and could be adopted by any two or more of them when they saw fit. There appears to be no serious dissent from this proposition. Therefore, the question is not whether two nations may of right inaugurate the court, but whether two nations can successfully set it up. What is meant by successfully? Undoubtedly this: that, when the court is set up by two or more nations, it will be resorted to not only by the nations inaugurating it, but by others for the settlement of those great questions of international right which the framers of the convention had in mind when formulating the organic act.

Our able and far-seeing Secretary of State, Elihu Root, in issuing instructions to the delegates of the second Hague Conference, set before them a distinction which I believe ought never to be lost sight of in providing for the establishment of this court. He said in substance that the court should be composed of judges representing the several great juridical systems of the world. What this court must undertake to do, if it is to lead men and nations to accept a common standard of international right, is to reconcile whatever differences now exist in the minds of men, concerning the essentials of justice. If men living under one system regard conduct as just which men living under another system think unjust, it is obvious that these differences must be reconciled. Hence, the success of the court will be more nearly assured if it is inaugurated by two nations of opposite juridical experiences and concepts than if inaugurated by several times that number, all bred under a single system. The nations represented at the Hague Conference all draw their juridical systems from one of two sources, the Civil Law of Rome or the Common Law of England. Among the large number deriving their systems from Roman origin, there are many and important shades of difference, and in some of the nations which in recent years have reorganized their codes both sources are drawn upon. Nevertheless there is generally speaking, this difference of origin to take into account. Among the eight Great Powers above named, the British Empire and the United States are the Common Law nations. The other six are inheritors of the Roman system. In a general way, these six fall into three groups, Germany and Austria in one, France and Italy in another, and Japan and Russia in still a third, unless the last two should be treated separately. It seems to me that the inclusion of representatives of the different juridical systems is so important that it becomes determinative. I should therefore say, the court can be successfully inaugurated by four of the Great Powers, provided the four include one nation of each of the following groups:

1. Great Britain and the United States; 2. France and Italy; 3. Germany and Austria-Hungary; and 4. Japan and Russia.

The court might succeed if the United States and one of the Great Powers of the Continent set it up, but in that case the success would consist in merely making a beginning, in keeping the court alive until others should join in its maintenance, whereas, with four nations uniting as above proposed, with the opportunity open to others to come in, a strong beginning would be made—in other words, the proposed court could be successfully inaugurated.