“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.