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

by Various

THE WORLD COURT MOVEMENT

BY

HON. THEODORE MARBURG

The World Court idea is not new. It has been the thought of eminent men—scholars, churchmen, publicists, occasionally statesmen—at intervals for generations. Our own William Penn put forward in 1693 a plan to prevent wars. In 1795 the famous German philosopher, Immanuel Kant, published his essay on “Perpetual Peace,” a fundamental conception in which was that wars would not cease until all the governments of the world were democratic. The great English lawyer, Jeremy Bentham, whose speculations fertilized so many departments of law and social endeavor, likewise elaborated a plan. Other men at other times, before and since these, have turned their thoughts to this subject. In our own country we have had men such as Elihu Burritt (1810–79) and Charles Sumner (1811–74) who have influenced, not only the people of America, but of the whole world. The first peace society was formed in New York, 1815, followed by one in England the ensuing year. It was Burritt who organized the Brussels Congress of Friends of Peace in 1848 and this was followed by the important gatherings in Paris, Frankfurt, London, Manchester, and Edinburgh. The great congress in Paris (1849) was presided over by Victor Hugo. Then there burst upon the world a series of wars, beginning with the Crimean War and the war in Italy, followed by the Austro-Prussian War and the Franco-Prussian War, and the peace movement was stilled for a full generation. Presently, there came renewed interest. Men began to examine the records of peaceful settlement of disputes; they found hundreds of instances of successful arbitration, our country—direction having been given to it by the Jay Treaty—being distinctly a leader in this field. They found that the awards of the arbitral tribunals were uniformly respected, that it was not necessary to use force to execute the verdict.

It has been suggested that possibly one explanation of this fact is that the more acute questions, over which there was great popular feeling, were not submitted to arbitration. However this may be, the fact is that we had an unbroken record of the acceptance of the verdict of arbitral tribunals until within the last few years. The apparent exception in this record is the arbitration over the Canadian boundary between Great Britain and the United States. It was found that the arbitrator, the King of the Netherlands, had exceeded the terms of the “compromise”—the agreement under which the arbitration was submitted—and the award was set aside by mutual agreement of the two countries, so that this case can not really be looked upon as a refusal by the loser to accept the award.

Within the past few years we have seen arbitrations thrown down by three South American and Central American countries. I do not feel that this, either, is very significant, because of the character of the countries which brought about this break in the long and splendid record. Owing either to their undeveloped condition or to the nature of the people, or both, these countries are frequently unable to maintain law and order within their own borders and are at times either unwilling or unable to carry out the verdicts of an international tribunal. It would therefore seem unfair to let a valuable principle suffer because it has been disregarded by a people whose backward condition makes it unlikely in advance that they will prove equal to the task of living up to it.

From this general criticism of the Latin-American countries must be excepted what are known as the “ABC” countries. Two of them, Argentine and Chile, enjoy a stable government. The stability of the other, Brazil, is less certain but still sufficient to place it among the progressive Powers of the world. This term, progressive Powers, I shall have occasion to use later and therefore should like to define it now. It is a mistake to follow the common disposition of the times and measure progress in terms of numbers—growth of population, pounds of steel, or yards of cotton turned out. Progress is to be sought in things other than the material, in the growth of the ethical, intellectual, and spiritual forces, above all, in justice: social justice, the justice of man to man, justice of employer to employe, justice of the State towards its people, justice written in the law, and justice of nation to nation.

Now, this recognition of the success of arbitration, combined with a realization of the unintelligent methods by which countries regulate their relations with each other, and above all the waste and danger of competition in armaments, led to the call for an international conference which met at The Hague in 1900. No progress whatever was made at the conference on the question of disarmament, for which primarily the conference was called. But there did emerge from it new institutions which were not looked for but which were a real gain to the world. I refer first of all to the Permanent Court of Arbitration, which you will remember has decided several difficult questions, among them the Casa Blanca affair between France and Germany, at one time quite acute. There emerged also an international Commission of Inquiry, which, in 1904, proved of the highest value. You will remember that the Russian Admiral Rodjesvensky, emerging from the Baltic, thought that he discovered an enemy in some innocent English fishermen. He attacked them sank a ship and killed several men. Now, in the minds of many men that incident might have led to war the next day—a generation before it would undoubtedly have led to war. But there happened to have been set up by the First Hague Conference this institution, the Commission of Inquiry. The question was referred to it and it was found that Rodjesvensky, however foolishly, still honestly believed he saw in these fishermen Japanese warships. Moreover time was given for national passion to subside. As a result there was no war between Russia and England and in the opinion of statesmen of the day, the fact that there was no war was due largely to the existence of this institution.

Then, too, at the First Hague Conference, Good Offices and Mediation were recognized for the first time as friendly functions. It was agreed that if a country should offer its good offices to two countries on the verge of war, or at war, this act should not be regarded as unwarranted interference but as a friendly act. It was under that institution, you will remember, that Mr. Roosevelt succeeded in bringing Japan and Russia together at Portsmouth and so terminating, earlier than would otherwise have been the case, the Russo-Japanese War. A second peace conference took place at The Hague in 1907. The task of improving the rules of war which had been begun at the First Conference was carried forward at the Second Conference. The Second Congress, moreover, adopted in fact an institution known as the International Court of Prize. Then it adopted in principle the Court of Arbitral Justice, intended to be a true international court of justice, composed of judges by profession, whose tenure should be permanent. This latter institution was to be brought into being through diplomatic channels as soon as the nations should agree upon the method of selecting the judges. The reason the court is not in existence to-day is that up to this time such a method of selecting the judges has not been found, and this is one of the subjects up for discussion this afternoon.

Now, why did the Second Hague Conference vote for this Court of Arbitral Justice when we already had in existence working successfully, the Permanent Court of Arbitration set up by the First Hague Conference? The reasons were several. In the first place, the Permanent Court of Arbitration was not a court of law. Its decisions were to be based upon the principles of law but at the same time its functions were those of arbitration, and, as you know, the main object of the arbitrator is to bring about the settlement of a dispute. That is to say, he is more interested in that, which often involves compromise, than he is in bringing out the true justice of the case which would tend to develop the principles of law and enlarge accepted practice.

Now, those of us who believe in this true court of justice for the world feel that international law would be built up by it in two ways. First, it would grow through the decisions of the judges themselves in cases actually coming before them, the judge being governed by previous decisions of the Court—the way in which the great Common Law of England has grown. That process produces the most natural, healthy, sound, and permanent kind of law. Then it is felt that the existence of this court will invite the codification of certain spheres of law. An example in point is the way in which the provision for the International Court of Prize led to the London Conference of 1908–1909, at which the law of prize was codified. England declined to proceed with the project of the International Prize Court until that was done. Hitherto the law of prize has depended upon the interpretation each nation has placed upon it. One nation might set up as contraband that which another nation declined to accept as contraband. Questions of how long an enemy’s ship should be suffered to remain in a neutral port, whether merchantmen may lawfully be converted into armed cruisers after leaving home waters, and numerous similar questions, were differently answered by different countries. England said “we must know what we are undertaking.” Therefore, at her instance the conference met at London and evolved the London Convention which codifies the law of prize. When the present war began, Germany announced her willingness to accept the Convention. On the other hand, England, who had not yet ratified the Convention (owing to the opposition of the Lords), proceeded to modify it and proclaimed it in this modified form. France did the same. It was accepted in its original form by the United States Senate but not promulgated by the President, who took the position that the United States could not accept a convention in which several nations had introduced their own amendments not agreed to by all. But the history of the London Convention shows how the existence of an international court will invite the codification of certain spheres of international law. I use that term advisedly because it is a tremendous undertaking to codify the whole body of international law, nor is it certain that it is advisable so to do. It may become too rigid.

Now, that project of the Second Hague Conference, the Court of Arbitral Justice, was accepted by the forty-four nations participating in the conference. It was indorsed in 1912 by the Institute of International Law. It has been supported earnestly by all the Powers, including Germany, France, and England; and every lawyer, every man who feels what justice means, approves of it. There is no difference of opinion as to the desirability of putting it into effect. The name of the proposed court, the Court of Arbitral Justice, is misleading. The word “arbitral” does not belong there. It was put in because Germany insisted on its being there. The word “court” carries with it the idea of obligation. When a court in municipal law renders a decision, usually an obligation goes with it. Now, Germany was not ready for anything obligatory in international institutions; therefore her demand. But a true court of justice is none the less provided for by the convention. From time to time for generations, isolated individuals have put forward the idea of such a court. The present movement to create it was really born in the mind of a man who sits upon this platform, James Brown Scott. He was connected with the Department of State under Mr. Root, and, as Mr. Root himself expressed it, he talked with Mr. Root once too often about this court. The result was that the American delegation to the Second Hague Conference went there with instructions from Mr. Root to establish the court if possible. Mr. Scott took an active part in drawing up the convention relating to the court and has been an earnest worker in the cause ever since. He has gotten a lot of us interested in it and may be said to be the father of the modern project.

In 1910 we formed a society known as the American Society for Judicial Settlement of International Disputes to promote this court.

The society has had four annual meetings, the proceedings of which have appeared in four substantial volumes. Besides, it publishes a quarterly usually limited to one article on the subject by some prominent man. The Proceedings have been translated, have been liberally quoted by foreign publicists, and have made a profound impression upon public opinion not only here but in other countries. The distinguished Foreign Minister of The Netherlands, Jonkheer Loudon, said we had demonstrated the feasibility and the necessity for this world court.

The Proceedings and the papers in the Quarterly published by the society have been of a scientific character designed to examine the project and to expose the principles which should guide the founders of the court and govern the court itself when established. But Mr. John Hays Hammond, an ex-president of the society, was not satisfied that this project should remain in the academic stage. He conceived the idea, with Dr. John Wesley Hill, of a public propaganda in the United States in favor of it. We have had several meetings in the West, a very large one in Akron, and a number in the East, all of which culminated in The World Court Congress held May 12, 1915, in Cleveland, Ohio.

Now, conjointly with this project there is in the minds of many of us a desire to have the world go a step farther and introduce the element of obligation.

Mr. Hamilton Holt is one of the principal advocates of this latter idea, which is nothing less than a league of peace. The subject was put forward by him in September in The Independent. Then he came to me with the suggestion that we should have a public conference. We first got together a group of about twenty scientific men, professors of political science, of international law, of history, of economics, threw the subject into the arena and had it torn to pieces by them at three meetings held at the Century Club in New York. In this way was worked out what we regarded as a “desirable” plan. We then took this “desirable” plan and on April ninth, laid it before men of wide practical experience, including Mr. Taft and Mr. A. Lawrence Lowell, in order to ascertain how much of it was, in their opinion, a “realizable” project. It was found that they were not ready to accept as realizable the whole of the plan of the first group, which was practically this: a league of peace which shall bind its members to resort to a tribunal for the settlement of all disputes to which a member of the league may be a party, and obligate them to use force, if necessary, both, to bring the nation law-breaker into court and to execute the verdict of the court.

Now, when you introduce the element of force into your plan you find that the unanimity of opinion to which I have referred as applying to the Court of Arbitral Justice as at present proposed, and to similar purely voluntary institutions, no longer exists; that there is very great diversity of opinion as to whether force should be used against a nation under any circumstances. The reason for this diversity of opinion is the shortcomings of the leagues of the past. The Quadruple Alliance, the Grand Alliance, and the Holy Alliance, all formed immediately after the Napoleonic wars, were by no means wholly beneficial. The Holy Alliance set up between Prussia, Russia, and Austria in 1815, ostensibly to promote Christianity, but really to support dynasties and combat the democratic tendency of the times, operated in fact to suppress liberty in Hungary, in Italy, and in Spain. You will remember that it was the Holy Alliance acting through France as a mandatory which overthrew the liberal form of government in Spain and restored full autocratic powers to the king. Then there were the partial successes and many failures of the Concert of Europe. The Concert of Europe has done some good things. It smashed the Turkish fleet in 1827 and liberated Greece. It has prevented more than one Balkan war. It has improved the lot of the Armenians in Turkey. But it has had many failures, this present disastrous war the most conspicuous of them. Then there were these groups like the Triple Alliance and the Triple Entente, which, though set up for purposes of peace, have really given to the present war its broad character. All of us felt that owing to their existence, when war came again to Europe it must be a general war. The breaking out of war surprised many people; its extent surprised no one.

Manifestly, then, the first step in planning a league of peace is to find out why the leagues of the past have failed. I think the answer lies in one thing: the narrowness of the group composing the league, permitting of the triumph of selfish interests, permitting of collusion, the swapping of favors, and resulting in injustice and oppression. That is what men fear.

Now, many of us believe that if we can set up a league so broad as to include all the progressive nations, big and little, it will be permanent and successful. I have defined what I mean by the word progressive. Such a league would include the eight great nations of the world, among them the United States and Japan. It would include the secondary Powers of Europe—Switzerland, Norway and Sweden, Denmark, Belgium, such as it was and such as it will be again, Spain, Greece, and in fact, all the countries of Europe, with the possible exception of some of the Balkan States and the certain exception of Turkey. The “ABC” countries of South America would also be included. It would not include the backward countries, because we feel that the country which can not maintain law and order within its own borders would bring no strength to the league.

Now, we believe that such a group would be successful. In the first place, it would embrace three great nations with common political ideals—England, France, and the United States. I put our country last for reasons of politeness only. These three peoples feel that democratic government is no longer a passing phase of political experiment but a permanent fact in politics. Therefore they would cling together. Then you have in the group two great nations—Great Britain and the United States—who may be said to be satisfied territorially; you have the secondary Powers of Europe who have no disturbing ambitions and whose voice would be for reason and justice, so that we think that if we could get these states associated together in a league, substantial justice would emerge, just as substantial justice results from the united action of the forty-eight states composing the American Union.

Whether you believe this league is practical or not depends on your answer to that question: whether justice would emerge from its united action. Unless it does justice it can not endure. Unless it does justice we don’t want it: we don’t want oppression. Injustice within a country—persistent injustice—sooner or later brings war; if not civil war then foreign war, or both; just as gross injustice in the conduct of a war will draw into the struggle an ever widening circle of nations, because there are irresistible forces which insist that justice shall emerge finally in the world.

Now, it was not proposed that this league should itself pass upon disputes. All it would do is to insist that members, party to the league, or any nation having a dispute with a member of the league shall not resort to war. It may refer the disputants to existing institutions at The Hague or to other institutions to be hereafter set up. They shall be privileged to go on with their dispute indefinitely if they choose, but they may not resort to war. The United States, under this plan, would have been permitted to continue the Fisheries dispute with Great Britain, as it did, for three-quarters of a century without interference; but if either Great Britain or the United States had shown a disposition to resort to arms the league would have been invoked and would have used its combined forces to prevent aggression.

There are four ideas or stages in the conception. The first is simply a true court of justice to which nations may refer their disputes, if they see fit to do so. This is the court called for by The Hague Convention of 1907 under the name of the Court of Arbitral Justice. It is the court which the Judicial Settlement Society was organized to promote. It is the court which we are endeavoring to get realized—simply a voluntary institution. Now, why did the World Court Congress plan to confine its efforts, its propaganda, to this voluntary institution, free from any element of force? I repeat, it is because there is unanimity of opinion as to the desirability of the project. You find no objectors to it. Practically all the Governments of the world have endorsed it, peoples have endorsed it, experts and plain men have endorsed it. In other words, it is a realizable project.

Now, the second stage of the larger and more problematic project is a league in which the element of obligation enters to this extent, that the members of the league, if you call it such—parties to the treaty—should obligate themselves to resort to the court. At present there is no obligation embodied in The Hague Convention. Like all our other international institutions, it is there for the nations to use or not, as they like.

In the third stage, the element of obligation is extended to forcing the nations into court. That is to say, if war threatens, we say to the disputants, “You must refer this dispute to the court. We will not force you to carry out the award nor do you bind yourself to do so, but you must go into court and have a hearing.”

Now, many men have come to realize that publicity is three-quarters of the battle for justice. Very often simply bringing out the facts stops not only illegal practices, but also unjust practices not covered by the law, and does it without resort to a court or even to arbitration.

The fourth stage is enforcing the award admittedly giving rise to the danger of oppression unless you have all the progressive nations in the league so that substantial justice would result from its action. The meeting of April 9th, to which I have referred, was unwilling to accept the fourth stage of this plan, namely: enforcing the verdict. Men like Mr. Taft, with his wide experience, Mr. Lowell, who has made a study of governmental institutions, in fact all except two out of the twenty eminent and experienced men gathered at that meeting, were willing to adopt the first three stages of the plan as a “realizable” project, namely, the court, for which this convention stands, the obligations of the States to each other to go into court, and the obligation of the league to force the nation law-breaker into court if recalcitrant.

If there is no obligation on the part of the nation entering the court to abide by the verdict and the league itself will not enforce the verdict, surely no oppression can result from the demand for a hearing. It is a reasonable demand as applied to any controversy whatsoever, whether it be a justiciable controversy or a controversy arising out of a conflict of political policies. The league would simply act as an international grand jury to hale the nation law-breaker into court for a hearing. That is as far as the meeting of April 9th was willing to go, and that is the project, represented in the recent World Court Congress. By starting with this minor project we get something which is practicable and out of the minor project, the larger plan may grow of its own accord.

THE WAR’S POSSIBLE DURATION
THE PROBLEM OF THE EXHAUSTION OF THE NATIONS ENGAGED—THEIR ENORMOUS RESOURCES AND COMPARATIVELY SMALL EXPENDITURE OF WEALTH AND MEN

BY

GEORGE K. SHAW

As bearing upon the question of the ability of the warring nations to continue the war indefinitely, Hudson Maxim’s book, “Defenseless America,” contains some interesting figures and comparisons. “We hear,” he says, “Much about the tremendous burden of the present conflict. The pacifists tell us that the nations engaged are destined to exhaust themselves, and that, when the war is over, we need have no fear of any one of them or of a coalition of them, because they will have neither men nor money with which to fight.”

Mr. Maxim assumes that the first year of the war will cost the warring powers fifteen billions of dollars. But this is only five per cent. of their total wealth, which is estimated at $300,000,000,000.

It must also be remembered that the same thing largely holds true in regard to war expenditures that holds true of current expenditures in time of peace. The cost, for the most part, comes out of the ground. The world makes its peaceful expenditures and not only recompenses itself from production, but actually adds to capital. In war, of course, there is a lot of non-productive expenditure, but on the other hand there is some added stimulus of production and greater enforced economy in everything save in the actual expenditures for carrying on the war. And in the labor of producing war material, transportation and feeding of armies, pay of the soldiers and for all labor incidental to the activities of the war, the money spent is chiefly returned to the people themselves. Labor in all the warring countries is now more highly compensated than it was prior to the war. Mr. Hudson estimates that the actual out-of-pocket loss to the nations in the present war, taking into account the compensating economic advantages, will not exceed two and one half per cent. for the first year’s operations.

In regard to loss of population Mr. Maxim’s figures are equally striking. The population of the warring nations is more than four hundred millions, taking into account only such part of the East Indian population in proportion to the percentage of troops furnished by them as compared with the percentage furnished by the United Kingdom to the number of its inhabitants. The total number killed and wounded in the whole war, on both sides, during the first six months may be stated at about two millions. Consequently the total loss in killed and wounded during the first six months was less than a half of one per cent. of the populations engaged. Many of the wounded suffer very little permanent injury, and the number killed does not exceed ten per cent. of the total of killed and wounded. Therefore the loss of killed and permanently disabled is much less than half of one per cent., and for the first year will hardly exceed one per cent.

If these estimates are anywhere near correct, it would be a long time before the nations engaged in this gigantic war could be exhausted either in wealth or men.

Some interesting light is thrown upon the ability of one of the warring countries, Germany, to carry on the war indefinitely by a letter written by Prof. Max Sering, of the University of Berlin, to W. S. McNeill, of Richmond, Virginia, and published in a recent issue of the New York Times. Prof. Sering was asked by Mr. McNeill for information as to whether Germany would be able to get along with her food and war material supply. Heretofore, he says, Germany has been in the habit of importing from one fifth to one fourth of all her food material and foodstuffs. The shutting off of her sea commerce led to a search for substitutes and also to governmental regulations for economizing supplies. As a result of the unceasing labor of scientists and practical inventors, Prof. Sering announces that the problems of supply have been completely solved in every direction. “We can now,” he triumphantly announces, “continue the war indefinitely. The complete cutting off of the supply of Chili saltpetre during the war has been made good by our now taking nitrogen directly out of the air. With extraordinary rapidity the question had been solved how the enormous quantities of the needed ammunition was to be produced. It is, however, not only for the needed explosives that we take the nitrogen from the air, but also for fertilizers which we formerly imported in the form of Chilean saltpetre. As for foodstuffs, the government, on February 1, 1915, took over all the grain and prescribed to each one a certain portion of bread and flour. In the beginning this portion was somewhat scant because we wanted to be sure that our supply would last until the new crop. Now, however, it is found that we are entering the new crop year with such large stocks that the price of flour and bread could be reduced considerably and the bread portion of the working population could be enlarged. Potatoes, also which for a time were very expensive, have lately become quite cheap. Unemployment is now less than before the war, the workmen receive higher wages, and the masses are well nourished. The supply of meat will become somewhat scant by and by, but that does not matter, as we have been in the habit of eating too much meat.”

As the war proceeds it is inevitable that the other countries engaged in it, whether hostile or friendly, will take example from Germany and resort to measures to conserve and increase their material resources. Modern science has wonderfully unlocked the storehouses of nature, and increased energy and industry can to some extent make good the waste and destruction of war. We cannot therefore expect to see the war end very soon from the exhaustion of any of the combatants. This is the outlook of the war in its physical aspect. What political or moral forces may be evoked to shorten it is beyond our ken.

Mr. Hudson Maxim’s book was written to call attention to the practically defenseless condition of the United States and to urge adequate preparation. We do not care to follow him in his voluminous argument on this score, but the concluding paragraph of his ninth chapter, to the effect that “when the war is over, any one of the warring powers, unless Germany is exceedingly humbled, will be in better condition in every way to fight the United States than it would have been before the war broke out,” is worthy of careful consideration. Of course Mr. Maxim means any one of the great powers, but we should be in danger, if in danger at all, from no more than three. These would be Great Britain, Japan, and Germany, as these are the only powers that possess navies strong enough to carry on operations across the seas against the United States, even in our present condition of unpreparedness. And no one of these could afford to attack us unless the others would give tacit consent, or agree to remain neutral. Perhaps after the war is over, however it may end, the European peoples would be so weary of war that they would not permit their governments to stand in the way of any nation that might want to attack this country, and hence that we should have to rely entirely upon our own strength for defense. The question of how much naval and military preparation we should make against future contingencies is a vital one and cannot be ignored. Everybody is in favor of peace. The question is, which is the surest way to peace?—unorganized helplessness, or organized strength?