CHAPTER XI
INTERNATIONAL ARBITRATION
On the day that the Commission on the League of Nations held its first meeting and before I had reason to suspect that Mr. Wilson intended to ignore the letter which I had sent him with the suggested resolution enclosed, I determined to appeal to him in behalf of international arbitration. I decided to do this on the assumption that, even if the plan for a resolution was approved, the Commission would continue its sessions in preparation for the subsequent negotiation of an agreement of some sort providing for world organization. The provision as to arbitration in the President's original draft of a Covenant was so wrong from my point of view and showed such a lack of knowledge of the practical side of the subject that I was impelled to make an effort to induce him to change the provision. Except for the fact that the matter was wholly legal in character and invited an opinion based on technical knowledge, I would have remained silent in accordance with my feeling that it would be inadvisable for me to have anything to do with drafting the Covenant. I felt, however, that the constitution and procedure of international courts were subjects which did not affect the general theory of organization and concerning which my views might influence the President and be of aid to him in the formulation of the judicial feature of any plan adopted.
With this object in view I wrote to him the following letter:
"_Hôtel Crillon, Paris
"February_ 3, 1919
"My Dear Mr. President:
"I am deeply interested, as you know, in the constitution and procedure of international courts of arbitration, and having participated in five proceedings of this sort I feel that I can speak with a measure of authority.
"In the first place let me say that a tribunal, on which representatives of the litigants sit as judges, has not proved satisfactory even though the majority of the tribunal are nationals of other countries. However well prepared from experience on the bench to render strict justice, the litigants' arbitrators act in fact as advocates. As a consequence the neutral arbitrators are decidedly hampered in giving full and free expression to their views, and there is not that frank exchange of opinion which should characterize the conference of judges. It has generally resulted in a compromise, in which the nation in the wrong gains a measure of benefit and the nation in the right is deprived of a part of the remedy to which it is entitled. In fact an arbitration award is more of a political and diplomatic arrangement than it is a judicial determination. I believe that this undesirable result can be in large measure avoided by eliminating arbitrators of the litigant nations. It is only in the case of monetary claims that these observations do not apply.
"Another difficulty has been the method of procedure before international tribunals. This does not apply to monetary claims, but to disputes arising out of boundaries, interpretation of treaties, national rights, etc. The present method of an exchange of cases and of counter-cases is more diplomatic than judicial, since it does not put the parties in the relation of complainant and defendant. This relation can in every case be established, if not by mutual agreement, then by some agency of the League of Nations charged with that duty. Until this reform of procedure takes place there will be no definition of issues, and arbitration will continue to be the long and elaborate proceeding it has been in the past.