The difficulties encountered by the Conference in attempting to constitute a Court were great. Many plans were submitted. The delegation from our own country presented no less than ten distinct plans, any one of which the delegation would have supported rather than have the Conference fail in completing the establishing of a Court.
One of the plans submitted to the Conference provided that each state should name one judge. This would have made an unwieldy body—“a judicial convention instead of a judicial court,” as was suggested by an American delegate. Another plan submitted provided that each state should designate an elector from the permanent court of arbitration, and that these forty-five electors should select fifteen judges, to constitute the court. This seems fair, and there can be but little doubt that a court so chosen would have been a competent body. Article XV of the Convention establishing the International Prize Court, provides, that each of the eight nations, generally known as the world powers, shall always be represented, or in the language of the Convention, “are always summoned to sit.” While Germany, Austria-Hungary, Italy, Russia, France, Great Britain, United States and Japan are the great world powers, they are not the eight powers with the largest commerce. Belgium exceeds three and the Netherlands exceed four of the world powers in their respective aggregates of commerce. The majority of questions or controversies brought before a judicial court will doubtless arise through commercial channels.
The experience of the United States may be cited as an encouragement for small states to trust the other and more powerful states and to join with them in the selection of fifteen judges. The sections or states from which members of the United States Supreme Court are appointed seem to be a matter of absolute indifference to the American public. Forty-eight states represented by nine judges. Each of these forty-eight states is about as near a sovereign entity as are many of the states represented in the Hague Conference.
It is confidently believed that the several nations would strive with each other to give to an International Court their best men. This would be especially true of those states, whose limited population and restricted commerce would not alone entitle them to a national on the bench.
The necessity for an International Court is so obvious that it need not be discussed. The delegates of forty-five states would not have supported it at The Hague Conference, if there had not been a great desire, and a growing demand for it. The decisions of the Court in causes brought before it will not exhaust all its usefulness. The laws which largely govern the Anglo-Saxon race have grown out of customs sanctioned by Judicial decisions. It may be surmised that not a generation will have passed after the inauguration of an International Court, before International Law will have assumed a stability to which it has not hitherto attained. If, at some future Hague Conference, a convention shall be voted prohibiting belligerents from committing—in reprisal—acts which are otherwise prohibited by international agreement, it will be a long step forward, and will remove a pretext for the violation of international law. At present, almost any wrong may be legally committed by belligerents under the pretext of reprisal.
That the civilized world should desire the Court, and that the delegates from all the nations at an International Conference should unanimously support the effort to create the Court—are encouragements for us all to believe that a plan can be evolved that will meet the emergency temporarily, even if far from perfection. Quoting, in substance, a remark of a great statesman, “Even if one’s hopes may not be realized at once, that is no reason why we should not press forward in the direction in which we see possible success. What is impossible to-day may become possible to-morrow.”
THE MINIMUM NUMBER
OF NATIONS REQUIRED TO SUCCESSFULLY INAUGURATE A COURT OF ARBITRAL JUSTICE
BY
HARRY A. GARFIELD
The proposed Court of Arbitral Justice, is one which deals with rules of right existing or to be hereafter set up between sovereign nations. It is distinguished from the so-called “Permanent Court of Arbitration” established at the first Hague Conference in 1899, in this, that it is a true court, while the Court of Arbitration is a representative body of negotiators selected to settle questions largely political. Neither by its composition nor tenure is the Court of Arbitration qualified to deal with questions essentially judicial. The distinction is less difficult for Americans than for foreigners. The line which separates political from judicial functions, though by no means so clear as to be instantly perceived, is a line which every student of law and government in the United States must be able to trace. The settlement of a boundary dispute, of trade or industrial questions, while involving judicial questions, is usually, in international affairs, a question essentially or chiefly political. Questions of this kind can be settled by resort to compromise. On the other hand, if two nations are agreed as to the rule of right, that is to say, if there is in each a notion which has become fixed in favor of a certain course of conduct as just and of another as unjust, any question involving this distinction is essentially and primarily a question for a court of justice.