This court—the fourth instrumentality—is composed of three distinct bodies; namely, the Permanent Administrative Council, the International Bureau, and the Court of Arbitration proper. The Permanent Council is made up of the diplomatic envoys of the signatory Powers accredited to the Netherlands, besides the Dutch Minister for Foreign Affairs, and was constituted after its ratification by nine of the Powers. The Council is permanent in the sense that its members are always at The Hague; it controls the International Bureau, appointing its staff and methods of administration, and reporting the proceedings of the court to the signatory Powers.
The International Bureau receives all the documents and stipulations in disputed cases, where arbitration is agreed upon and referred to The Hague, acting as a board of registry. It places its staff at the disposal of tribunals of arbitration, and occasionally of those not constituted at The Hague, and its expenses are paid by the Powers.
The Court of Arbitration proper is really an "eligible list" of individuals, "of recognized competence in questions of international law, enjoying the highest moral reputation," designated by the forty-four Powers signatory to the convention. Their terms are six years, renewable, not over four members appointed by a Power. Their jurisdiction extends over all cases submitted to them, but sometimes the parties agree to a special tribunal not selected from the list. Two names may be selected from the list of arbitrators by each of the Powers in dispute, and the amended convention of 1907 provides that only one of these can be its envoy or chosen from its nominees to the Court of Arbitration. The four arbitrators thus selected themselves choose a fifth as umpire, or, if the votes of the four are equally divided, the choice of umpire is intrusted to a third Power to be agreed upon. If there is failure to agree upon a third Power, each party to the controversy makes a separate choice of a Power, and the two thus selected will try to appoint the umpire. But if they, in turn, fail to agree, each shall within two months' time present two candidates from the general list, excluding those selected by the disputants or of their nations; by lot among these, the umpire is finally elected.
The work of the Third Conference, besides adding to the statute law of war, will largely concern the regulations governing the Court of Arbitration. Since it was constituted in April, 1901, this court has passed judgment in fourteen important cases without having established needed rules of practice. It is not decided whether the cases and counter-cases shall be presented with argument, or merely with statements of the facts, the conclusions sought, and the proofs. The practice is both ways. The thirty-five articles relating to "arbitral procedure" fail to prescribe rules, leaving this task to the tribunal in each case. As a result the terms of procedure in the Casablanca dispute, for instance, which were decided hastily to avert a threatened war, were brief and vague, and they left the discretion of the tribunal uncontrolled. The order of oral debate is not determined chiefly because a disputant is touchy about being classed as plaintiff or defendant. Clear rulings on points of practice are not made when presented, although the agents and counsel are entitled by the rules to "present orally to the tribunal all the arguments they may consider expedient in defense of their case." Yet opportunity to argue a motion is sometimes not afforded when the motion is made, and an argument presented later would be out of place. It would aid procedure to have arguments presented and rulings made as the points come up. Finally, the informal discussions between court and counsel frequently hinder the straightforward presentation of a case.
But the chief defect of these arbitral tribunals, as in all others—for practice has not reached the perfection of choosing disinterested judges belonging to nations not concerned in the controversy—lies in their temptation to compromise. Gallatin, in the Northeastern Boundary case with Great Britain, remarked that the arbitrator "has always a bias to split the difference." The Casablanca case, the decision of which really did avert war, and more than any, so far, justifies the establishment of the world court, depended on law and fact, but was compromised. Dr. Heinrich Lammasch, a distinguished member of several Hague tribunals, speaks of the "preponderatingly diplomatic character" of this decision. Other decisions have been criticised for the same reason, notably those of the North Atlantic Fisheries and the Orinoco Steamship. Compromise, while of value, is the function of diplomacy or mediation, and the cases referred to The Hague are admittedly those which diplomacy cannot adjust. The remedy is by direct agreement to exclude from the tribunal judges who sit as diplomatic agents of their governments. A beginning in this direction is in Secretary Bryan's plan for commissions of inquiry, consisting of five members, three of whom should be chosen from other countries than those in dispute. But these would be merely committees. The defect of Mr. Bryan's plan, and the great lack of the Hague Court of Arbitration, is that the agreements to refer cases in dispute are purely voluntary; the one thing for friends of peace to work for, of course, is to make it as easy for differing nations as for differing men to hale each other into court, and as impossible to refer their differences to force.
The International Court of Prize has already come nearer to this ideal than the Court of Arbitration. It is a regular court of justice. Its judges are not arbitrators, they receive a fixed compensation, their jurisdiction in cases of appeal from the national prize courts relating to captured merchant ships and cargoes, is compulsory. In absence of treaty provisions between the states in dispute, the convention adopted by the Second Hague Conference reads, "the court shall apply the rules of international law; if no generally recognized rule exists, the court shall give judgment in accordance with the general principles of justice and equity." Before ratifying the convention, Great Britain in 1908 called a conference in London of the chief naval Powers, which codified the laws of naval war, covering blockades, contraband, service ill-becoming neutrals, destruction of neutral prizes, transfer to a neutral flag, hostile character, convoy, resistance to search, and compensation. Here a whole category of cases is at once removed from the judgment of biased minds.
The existing Court of Arbitration may be resorted to increasingly as a means of diplomatic conciliation; but by its side and above it should rise, in the opinion of all authorities on international law, a Supreme Court of Arbitral Justice, not diplomatic but judicial, that will render its decisions rigorously according to the declared law and the evidence. The Second Conference at The Hague approved a convention for the establishment of such a court. The United States has proposed to the Powers that the Prize Court be invested with the functions and jurisdiction of a Court of Arbitral Justice. The practical difficulty met at The Hague was in the appointing of permanent Judges. Forty-four, one for each state including The Netherlands, would be too many. A court of but fifteen Judges was recognized as desirable. Such a court could not be chosen from forty-four nations, and the delegates were in a quandary. The arguments were irrefragable, of course, that a small, independent body of magistrates selected in advance is needed to settle controversies between nations as they arise, and as a court of appeal from the decisions of temporary tribunals. Such a tribunal might well become a court of first as well as of last resort, because of the difficulties and delays usually experienced in making up the mixed arbitral commissions from the eligible list of the Court of Arbitration. The alternative recourse is especially needed when the imminence of war requires a speedy reference, as in the Casablanca case. For these reasons the convention was drawn and approved, leaving to the Third Conference the task of constituting the court. Ernest Nys, a member of the Permanent Court of Arbitration and Counselor of the Court of Appeals of Brussels, urging the necessity of such a tribunal, makes the point that its members should not be chosen to represent any countries, as such, but rather in a way to assure that the different systems of law and procedure, as well as the principal languages of the world, might be represented. By this means the world peace may be permanently established. Organized justice will succeed arbitration, guaranteeing to individuals and states the security of their rights and institutions, precisely as the "king's peace" had come to guarantee them within the limits of each sovereignty.
In this review of the instruments making for peace by conciliation and law, the arguments for war have not been ignored. If at The Hague in 1915 the Powers should decide to nationalize the private industries that supply armaments and engines of war, the artificial stimulus given to those industries and the exploitation of new appliances for war would cease; manufacturers would no longer oppose the limitation of armaments, which every nation desires. Complete preparation for war did not prevent the Balkan States and Turkey, not yet emerged from the civilization of the Middle Ages, from coming to the death grip with each other. It was different with those nations whose Council of Ambassadors, sitting in London, and watching the kaleidoscopic changes in the Balkans, became by the statesmanlike influence of Earl Grey, a clearing house, through which the affairs of the six chief Powers were adjusted to a harmonious ending. It is noteworthy that in the more than forty years of Europe following the close of the Franco-Prussian war—perhaps as good as a cycle of Cathay—those six Powers, though armed for provocation, have by such careful negotiations remained at peace. But making the allowance due to this remarkable abstention from war, to which must be added the hundred years of peace between the United States and Great Britain, the inherent appeal of war to the imagination and emotions of mankind must still be recognized.