INTERNATIONAL ADMINISTRATION OF JUSTICE
[Sidenote: Law can exist without official administration.]
50. It is inherent in the nature of law that it should be put in
question whenever from time to time one party raises a claim in the name
of the law which the other resists in the name of the same law. If,
however, it be asserted that there cannot be any law where there is no
official administration of justice, this is a fallacy, and the fallacy
lies in considering the presence of the elements of the more perfect
situation to be presupposed in the less perfect situation. Beyond a
doubt it is the administration of law which gives law the certainty that
its authority will in every case obtain operative effect. But this
operative effect is obtainable even apart from administration, because
those who are subject to the law are in most cases clear as to its
contents, and so they raise no question about it, but submit to its
application without any need of recourse to jurisdictional officials.
All the same, when a dispute does arise, law needs official
administration: and, accordingly, in the long run, no highly developed
legal society can dispense with it.
[Sidenote: The Hague Court of Arbitration as a permanent institution.]
51. Until the end of the nineteenth century the society of states
possessed no organ which made international administration of justice
possible. When states had made up their mind to have a dispute between
them settled amicably, they either appointed the head of a foreign state
or a foreign international jurist as arbiter, or they selected a number
of persons to form an arbitral tribunal. It was a great step forward
when the first Hague Conference established a Permanent Court of
Arbitration and agreed on international rules of procedure for the
conduct of this court. And if, seeing that in every particular instance
the court is ultimately chosen by the parties, the expression 'Permanent
Court of Arbitration' is only a euphemism, nevertheless the permanent
list of persons from among whom the arbiters can be chosen, and, in
addition, the Permanent Bureau of the Court of Arbitration at The Hague,
and, lastly, the international rules of procedure, represent at least
the elements of a permanent court. Thereby an institution is obtained
which is always available if only parties will make use of it, whereas
such an institution was entirely lacking formerly, and if parties wanted
an arbitration they had to enter on lengthy arrangements about the
machinery of the process. And the short experience of twelve years has
already shown how valuable the institution is, and how well adapted to
induce disputant states to make use of it.
[Sidenote: The proposed International Prize Court and Court of Arbitral
Justice.]
52. The second Peace Conference took, however, another great step
forward in the resolution to establish an international court of appeal
in prize matters, and also in the proposal about a really permanent
international court to exist by the side of the Court of Arbitration.
And the United States of North America have recently entered on
negotiations with the object of utilizing the International Prize Court,
should it come into existence, as at the same time a permanent tribunal
for all legal issues. Here present and future touch hands, and these
proposed institutions must therefore be discussed. Attacks upon them
have been made from two sides, it being asserted that they infringe the
principles of the equality and sovereignty of states.
[Sidenote: Does the constitution of the International Prize Court
violate the principle of the equality of states?]
53. It is alleged that the principle of equality is violated in that the
Prize Court is contemplated as consisting of fifteen members, so that,
while the eight Great Powers are always represented by a member, the
thirty-seven smaller states are only represented by seven members who
take their seats in the court in rotation according to a definite plan.
Now it is not clear how the principle of equality can be deemed violated
thereby. This principle has really nothing to do with the constitution
of an international court so long as no state is compelled to submit
itself to such a tribunal against its will. It would be possible to
constitute an international court without basing it on the
representation of definite states, and that is very likely to come to
pass in the future, when fuller confidence in the international
judicature is felt. In the proposed composition of the Prize Court
expression is given, undoubtedly, to the actually existing _political
inequality_ of states, a matter which, however, has not the least
connexion with their _legal equality_. This political inequality will
never disappear from the world, and if in course of time the creation of
an international judicature is really intended, the realization of this
idea is only possible subject to the existence of political inequality.
There is little doubt that when we come to the constituting of the Prize
Court certain smaller states will abstain because no permanent
representation therein is allotted to them. But it may confidently be
expected that the recalcitrant states will give in their adherence in
the future, when they begin to see what beneficent results the
institution has produced.
[Sidenote: Does the International Prize Court restrict the sovereignty
of the several states?]
54. The International Prize Court violates the sovereignty of states
just as little as it violates the principle of equality. No state
submitting itself to an international tribunal submits itself thereby
to the power of any other earthly sovereign so long as no other power is
entrusted with the execution of the awards of the international
tribunal, that is to say, so long as submission to any such award rests
always and entirely on the voluntary submission of the state concerned.
If this be not correct, then there would also be an invasion of
sovereignty whenever--as indeed happens everywhere more or less--a state
submits itself to the decrees of its own courts, and allows its subjects
an appeal to its courts against the measures of the government. In the
latter, as in the former case, what we have is merely the demission to
the determination of the court of the question whether certain acts and
claims are consistent with law. He who at the present day conceives
sovereignty as an unlimited arbitrariness of conduct is guilty of an
anachronism which is everywhere contradicted by the mere fact that there
are such things as international law and constitutional law.
[Sidenote: Would the formation of an international Prize Court of Appeal
infringe the sovereignty of the several states?]
55. It is next alleged that there is a violation of sovereignty in the
fact that the proposed Prize Court is a court of appeal which is to be
competent to reverse the decisions of national prize courts. There is
nothing in this objection also, for it rests on a _petitio principii_.
If we but get rid of the preconception that a sovereign state can only
admit an interpretation of law to be authoritative for itself when
pronounced by its own courts, no reason is visible why an award of an
international court which upsets an award of a national court should be
considered an infringement of state sovereignty. He who alleges it to be
an infringement has really in view, however unconsciously, the power of
execution which is inherent in the decrees of a national court, and he
is unable to conceive a judicial decree without power of execution.
Judicial declarations of law have, however, as little as the essence of
law itself to do with power of execution; otherwise--as indeed happens
in the case of many persons--the law of nations must be denied any legal
character. Now, just as that system of law is more complete behind which
there stands a central authority enforcing it by compulsion, so also
that judicial activity is more complete with which physical power of
execution is conjoined. But alike in the one and in the other case,
physical power is not an essential element in the conception. Just as
there is law which in point of fact is not enforceable by any central
authority, so there can also be jurisdictional functions without any
correlative power of execution. International administration of justice
is, in the nature of the case, dissociated from any power of this kind;
therefore, too, it does not impair the sovereignty of states.
[Sidenote: The powers of the International Prize Court do not curtail
state-sovereignty.]
56. It is imagined that a trump card is played when it is asserted that
Article 7 of the Convention, entered into at the second Peace
Conference, respecting the Prize Court, curtails state-sovereignty when
it provides that, in default of definite agreement and of generally
recognized rules of the law of nations, the Prize Court is to give its
decisions in accordance with the principles of justice and equity, and
that therefore (so the assertion continues) on certain points the Prize
Court can make international law by itself. Whilst up to the present
time custom and convention have been the two sources of the law of
nations, the Prize Court--so it is said--is now to be added as a third,
and the law made by it is to become international law without requiring
the assent of the several states. All this argument rests on a false
assumption. The article in question endues the Prize Court in certain
points with a law-making power which is simply a _delegated_ power. The
states which are concerned with the Prize Court desire, in the interests
of legal security, that the tribunal should not declare itself
incompetent by reason of want of existing rules on any given matter.
They accordingly delegate to this tribunal the power which lies in them
collectively of making rules of international law, and they
prospectively declare themselves at one with regard to the rules which
the tribunal shall declare to be binding in the name of justice and
equity. Now the Prize Court is not hereby made a special and independent
source of international law by the side of convention, but the law which
it declares is law resting on an agreement between states. Even in the
inner life of states we meet with delegation of legislative power to a
limited degree, and yet this does not mean that the authorities in
question are raised into special and independent sources of law side by
side with the government of the state. And just as in the inner life of
a state a delegation of legislative power does not involve an
infringement of sovereignty, so also the delegation of legislative power
to the Prize Court involves no infringement of the sovereignty of the
members of the international community of states.
[Sidenote: Difference between international courts of arbitration and
real international courts of justice.]
57. The step from the International Court of Arbitration to the erection
of a real international court is, on two grounds, a decided step onward.
In the first place, an arbitral tribunal is not a court in the real
sense of the word, for its decisions are not necessarily based on rules
of law, and it does not necessarily deal with legal matters. An arbiter,
unless the terms of the reference otherwise provide, decides _ex aequo
et bono_, whilst a judge founds his decision on rules of law and is only
applied to on legal issues. Valuable as it may be in many cases to
withdraw a matter from the courts and remit it to arbitration, it is in
other cases equally valuable to have a cause decided in legal fashion by
a judge. The experience which we have so far had of arbitral tribunals
shows that they make praiseworthy efforts to arrive at a finding which
shall as far as possible satisfy both parties, and that they have in
view a compromise rather than a genuine declaration of law. Now the
cases are, all the same, numerous enough in which the parties want a
real, genuine declaration of law, and so it would be most valuable if a
real international court were in existence. In the determination to
erect an International Prize Court it has been recognized that prize
cases ought not to be brought, from occasion to occasion, before an
arbitral tribunal and there peaceably arranged, but ought to be decided
by a real court on the basis of the law of prize. If success attends the
attempt to convert the Prize Court into a general international court or
if a special international court is created, this would render it
possible to have other international legal disputes also decided by a
real court upon naked principles of law. Such a possibility is in the
interest of the parties and also in that of international law itself,
for it will be held in higher and surer esteem if a court is provided
for its authoritative interpretation and application.
[Sidenote: Fundamentals of arbitration in contradistinction to
administration of justice by a court.]
58. The second ground referred to is that it is a fundamental part of
the idea of arbitration that in every case the choice of the arbiters as
men in whom the parties have confidence should be left to the parties
themselves, whilst it is fundamental in the conception of a court that
it is once and for all composed of judges appointed independently of the
choice of the parties and permanently to adjudicate upon matters of
law. Such a court secures continuity of jurisprudence, affords a
guarantee for the most exact examination of questions of fact and of
law, deems itself to a greater or a less degree bound by its previous
decisions, contributes thereby to the settlement of open legal
questions, and furthers the growth of law while adding to the respect in
which it is held. Nothing can heighten the respect in which
international law is held more than the existence of a real
international court.
[Sidenote: Opposition to a real international court.]
59. But, incredible as it may sound, this is not generally recognized.
It is just among the old champions of the arbitral decision of
international disputes that the most violent opposition is raised to the
erection of a real court of justice for international law causes. In
such a court they see a great danger for the future. The fact that
arbitration has a tendency to furnish rather a decision which is as far
as possible satisfactory to both parties than one which is based on
naked law, is just the respect which, in the eyes of many, gives it a
higher value than a real court possesses. Not _jural_ but _peaceable_
settlement of disputes is the motto of these men; they do not desiderate
justice in the sense of existing law, but equity such as contents both
parties. And they gain support and approval from those who see in the
law of nations rather a diplomatic than a legal branch of knowledge, and
who therefore resist the upbuilding of the law of nations on the
foundation of firmer, more precise, and more sharply defined rules on
the analogy of the municipal law of states. These persons range
themselves against an international court because such a court would
apply the rules of the law of nations to disputed cases in the same way
in which the courts of a state apply the rules of municipal law to
disputed cases arising within the state; they prefer diplomatic or, at
any rate, arbitral settlement of disputes between states to the purely
legal decision thereof. They also contend that an international court
without an international power of execution is an absurdity.
[Sidenote: A real international court does not endanger the peaceable
settlement of disputes.]
60. This last objection has already been dealt with above (paragraph
55), where it is shown that a judicial award as an authoritative
declaration of the legitimate character of an act or claim has, in and
for itself, nothing to do with the governmental execution of the award.
But as to the fear that the erection of an international court might
endanger the peaceable settlement of disputes and the development of
international arbitration, that is certainly groundless. The contrary is
the case, as is shown by the fact that the happy movement towards the
erection of an international court was initiated by the United States of
North America. This country, which since its entry into the
international community of states has more than any other championed the
idea of the arbitral adjustment of disputes, and has in practice put it
to good use, is well aware of the value of arbitration, but, on the
other hand, it knows also how to prize the purely legal decision of
legal questions. It has actually happened that a state has not ventured
to submit a certain dispute to arbitration because it feared that its
claim would not receive jural treatment in this way. It is just because
the existence of an international court would promote the non-warlike
settlement of international claims that its erection has been put
forward. The reason is that even with the most careful selection of
arbiters, one is never certain beforehand as to the quarter whence they
will derive their ideas of the _aequum et bonum_, whilst with a jural
settlement of claims the decision rests on the sure basis of law.
Further, the erection of an international court is not intended to cause
the suppression of the so-called Permanent Court of Arbitration; on the
contrary, the machinery of this latter is to be retained in full
existence, so that the parties may in every case be able to choose
between the Court of Arbitration and a real court. The future will show
that both can render good service side by side.
[Sidenote: Composition of an international court.]
61. If the erection of an international court comes to pass, the
equipment of it with competent and worthy men will be of the highest
importance. Their selection will have difficulties of all sorts to
overcome. The peculiar character of international law, the conflict
between the positive school and the school which would derive
international law from natural law, the diversity of peoples (consequent
on diversity of speech and of outlook on law and life) and of legal
systems and of constitutional conceptions, and the like--all these bring
the danger that the court in question should become the arena of
national jealousies, of empty talk, and of political collisions of
interest, instead of being the citadel of international justice. All
depends on the spirit in which the different governments make the choice
of judges. Let regard be paid to a good acquaintance with international
law joined to independence, judicial aptitude, and steadfastness of
character. Let what is expected of candidates be the representation not
of political interests but of the interests of international
jurisprudence. Let nomination be made not of such diplomatists as are
conversant with the law of nations, but of jurists who, while conversant
with this branch of law, have had the training required of members of
the highest state judiciary, and have been tested in practice. Let men
be chosen who are masters not only of their own language and of French,
but also of some other of the most widely diffused languages, and who
possess an acquaintance with foreign legal systems. If this be done, all
danger will be avoided. Judges so selected will speedily adapt
themselves to the _milieu_ of the international court and be laid hold
of by it, and their equipment for their task completed. As things are at
present, the institution of an international court is an unheard-of
experiment. But the experiment must be made at some time, and the hope
may be confidently entertained that it will be successful. Petty
considerations based on the weakness of humanity and doubts as to the
sincerity of the efforts of states to submit themselves voluntarily to
international tribunals must be silenced. Fear of international
entanglements and groupings is misplaced. National prejudices and
rivalries must keep in the background. The big state's disdain of the
little state and the little state's mistrust of the big state must give
place to mutual respect. Opposed to the hope and confidence that the
experiment will succeed there are no considerations other than those
which have been arrayed against every step forward in international
life. They will disappear like clouds when the sun of success has once
begun to shine upon the activity of the International Court.
[Sidenote: International courts of appeal a necessity.]
62. Obviously it will not be possible in the long run to stop at a
single international court; the erection over the court of first
instance of an international court of appeal is also a necessity. The
proposed Prize Court will indeed be itself a court of appeal because it
cannot be approached until one or two national courts have spoken. But
the proposed International Court of Justice would be a court of first
instance. Now there are no infallible first-instance decisions. Even
courts are fallible and make mistakes. If this is universally recognized
for municipal administration of justice, it must be recognized for
international administration of justice, all the more as public and not
private interests are then in issue. If states are to feel bound to rely
on their right rather than on their might, and to submit it to a
judicial decision, it must be possible to carry an appeal against a
decision of the International Court of Justice to a higher tribunal.
Many advocates of arbitration will not hear of an appeal. In this they
may be right as regards a real arbitral decision given _ex aequo et
bono_, but their arguments lose all force before the nakedly jural
decision of a real court.
The difficulties which beset the erection of an international court and
the appointment of its members may lead to the renunciation of the
immediate establishment of an international court of appeal. But when
once the International Court is in active working, the demand for a
court of appeal will be raised and it will not be silenced until it has
been satisfied. It would be premature to make proposals now as to the
manner in which such a court of appeal ought to be composed, and as to
the way in which it could be brought into existence. It is enough to
have pointed to the need for it. Directly this need makes itself felt,
ways and means will be found for supplying it.
[Sidenote: Are international courts valueless if states are not bound to
submit their disputes to them?]
63. We next are faced by the objection, what possible value can the
establishment of international courts possess if it be optional to
states either to submit their causes to them or to rely on arms for a
decision of those causes? It is, accordingly, asserted that such courts
can only be of value if states place themselves under a permanent
obligation to submit to them all or at any rate the greater number of
their disputes. This leads to the question of obligatory arbitration
treaties, which played so prominent a part at the second Peace
Conference, and will surely come up again at the third Conference. I
have not the slightest doubt that the third or some later Conference
will agree on the obligatory reference of certain disputes between
states to arbitration, but the matter is of quite subordinate importance
so far as the erection of international courts is in question. Any one
who contemplates international life and the relations of states to one
another, without prejudice and with open eyes, will see quite clearly
that, when once there exist international courts, states will
voluntarily submit a whole series of cases to them. These will, at
first, admittedly, be cases of smaller importance for the most part, but
in time more important cases will also come to them, provided that the
jurisprudence developed in them is of high quality, and such as to give
states a guarantee for decisions at once impartial and purely jural and
free from all political prepossessions. _It is the existence of the
institution which is the vital question now._ Once the machinery is
there, it will be utilized. In all states of the world there are
movements and forces at work to secure the ordered and law-protected
settlement of international disputes. The existence of an international
court will strengthen these movements and forces and render them so
powerful that states will scarcely be able to withdraw themselves from
their influence. And the time when states were ready to draw the sword
on every opportunity belongs to the past. Even for the strongest state
war is now an evil, to which recourse is had only as _ultima ratio_,
when no other way out presents itself.
[Sidenote: What is to be done if a state refuses to accept the decision
of an international court?]
64. In conclusion the great question is, what is to happen if a state
declines to accept the decision of the international court to which it
has appealed?
Important as this question may be in theory, it is a minor one in
practice. It will scarcely happen in point of fact--assuming that there
is an international court of appeal above the court of first
instance--that a state will refuse a voluntary acceptance of the award
of an international court. Only slowly, and only when irresistibly
compelled by their interests so to do, will states submit their disputes
to international courts. But when this is the case these same interests
will also compel them to accept the award then made.
[Sidenote: Executive power not necessary for an international court.]
65. We have neither desire nor need to equip these courts with executive
power. In the internal life of states it is necessary for courts to
possess executive power because the conditions of human nature demand
it. Just as there will always be individual offenders, so there will
always be individuals who will only yield to compulsion. But states are
a different kind of person from individual men; their present-day
constitution on the generally prevalent type has made them, so to say,
more moral than in the times of absolutism. The personal interests and
ambition of sovereigns, and their passion for an increase of their
might, have finished playing their part in the life of peoples. The real
and true interests of states and the welfare of the inhabitants of the
state have taken the place thereof. Machiavellian principles are no
longer prevalent everywhere. The mutual intercourse of states is carried
on in reliance on the sacredness of treaties. Peaceable adjustment of
state disputes is in the interests of the states themselves, for war is
nowadays an immense moral and economic evil even for the victor state.
It may be that a state will decline to submit its cause to the
international tribunal because it thinks that its vital interests do not
allow such submission; but when, after weighing its interests, it has
once declared itself ready to appear before the court, it will also
accept the court's award. All other motives apart, the strong state will
do this, because its strength allows it to make voluntary submission to
the award, and the weak state will also do so because war would be
hopeless for it.
[Sidenote: Right of intervention by third states and war as _ultima
ratio_.]
66. If, however, in spite of all, it should happen that a state declined
such acceptance of an award, the powers who were not parties would have
and would use the right of intervention. For there can be no doubt of
the fact that all states which took part in the erection of an
international court would have a right to intervene if a state which
entered an appearance before an international court should refuse to
accept its award. And of course, in such a case, war is always waiting
in the background as an _ultima ratio_; but it is in the background only
that it waits; while, apart from the erection of an international court,
it is standing in the foreground. The whole problem shows that the
development in question cannot be rushed, but must proceed slowly and
continuously. Step can follow step. The economic and other interests of
states are more powerful than the will of the power-wielders of the day.
These interests have begotten the law of nations, have driven states to
arbitration, have called forth the establishment of a Permanent Court of
Arbitration at The Hague, and are now at work compelling the erection of
international courts. Let us arm ourselves with patience and allow these
interests to widen their sway; they will bring about a voluntary
submission to the judgments of the international court on the part of
all states.