[N] The amendment to Lord Pauncefote’s plan, by which the Dutch Foreign Minister was made the president, is due to Mr. White, President of the American Commission.
[O] In case states, between whom a dispute may arise, do not of their own accord have recourse to the tribunal, Section 27 permits the powers to remind such states that the Permanent Court is open to them, and the giving of this reminder is declared to be a duty in the superior interests of peace, and is to be regarded only as an exercise of “good offices.” To this section the United States agreed on condition that its consent should not be regarded as a departure from the well-known principles underlying the foreign policy of the Republic.
Arbitral Procedure.—For the purpose of promoting the development of arbitration certain simple rules are formulated. The powers will appoint special agents, who shall be intermediaries between them and the tribunal; they will also appoint counsel. The proceedings consist first of instruction—communications by the agents and counsel to the tribunal and the opposing party, of the pleadings, etc.; and, secondly, of argument—the oral development of the pleadings. The argument being closed, the bench shall deliberate in secret, and a decision is to be reached by a majority vote. The decision shall be written, and is to contain the reasons of law and fact upon which it is based. In case of disagreement, the dissenting opinion shall also be written and contain the reasons therefor; the signature of each member is to be added to his opinion. Subsequently the decision is to be read in open session, in the presence of the agents and counsel of the parties.
To sum up: it contains all the essentials; it is immediately available, provided with a permanent office, with officials, with a code of procedure, with directions for the commencement of proceedings, the presentation of cases, the taking of evidence by an International Commission of Inquiry, the oral explanation and argument of the printed case, the pronouncement of sentence in open court, the recording of such decision, the subsequent rectification of an error therein on the discovery of new and important facts of a decisive character, and the preservation of the records.[P]
[P] See Articles XV to LVII of the Convention.
Basis for Future Evolution.—With these essentials there is a basis for a future evolution until the court shall have become as perfect in its organization and details as the High Courts of Justice in England or the Supreme Court of the United States.
It may not be amiss here to suggest the influence which the permanent tribunal is calculated to exercise in the future development of international law. The provision for a permanent bureau or record office, in which the archives shall be kept, is sure to prove a valuable condition for future growth, for the deposit in such bureau of all arbitral decisions will mark the true beginning of what we may call “International Law Reports.” To this bureau the powers undertake to send certified copies of all special arbitration agreements, whether embodied in treaties or otherwise; to it also will be sent the result of all special arbitrations hereafter resorted to, and in it will be deposited the papers, pleadings, and other documents, and especially the decisions of the permanent court, as well as those of any special courts which may hereafter be created from time to time. These archives will thus furnish a wealth of material not locked up or available only by jurists of the particular state where they may happen to be situated, as has too often been the case heretofore, but accessible alike to the great text writers and commentators of all nations. The criticisms and opinions of eminent text writers have heretofore been of great value in the improvement of international law, and under these new and more favorable conditions their influence should be even more beneficial in the future.
To the works of text writers will in future be added the able discussions of counsel and the learned opinions of judges handed down in writing, with the reasons upon which they are founded.[Q] Where rules and usages are becoming obsolete or obviously hostile to the growth of opinion, international judges may feel themselves bound for a time by them and give their decisions accordingly, but they may embody in their written decisions an obiter dictum which shall prove the death knell of the old rule and the establishment of a healthier one. Many are the wholesome changes that have thus been wrought in English “judge-made law” as the direct result of learned and convincing obiter dicta.
[Q] For an admirable example, see the published proceedings of the Paris Tribunal in the Venezuelan case.
The interest which will thus be stimulated in the whole subject of international law will promote its study in all nations. Hitherto this branch of legal education has been rather slighted; not being regarded as essential to the ordinary practitioner, it has been neglected for the petty provisions of some state code or involved corporation law, but the influences already at work in favor of a more thorough and scholarly study of this branch will be effectively aided under the new conditions.