THE WORLD COURT MOVEMENT

BY

HON. THEODORE MARBURG

The World Court idea is not new. It has been the thought of eminent

men—scholars, churchmen, publicists, occasionally statesmen—at intervals

for generations. Our own William Penn put forward in 1693 a plan to

prevent wars. In 1795 the famous German philosopher, Immanuel Kant,

published his essay on “Perpetual Peace,” a fundamental conception in

which was that wars would not cease until all the governments of the

world were democratic. The great English lawyer, Jeremy Bentham, whose

speculations fertilized so many departments of law and social endeavor,

likewise elaborated a plan. Other men at other times, before and since

these, have turned their thoughts to this subject. In our own country we

have had men such as Elihu Burritt (1810–79) and Charles Sumner

(1811–74) who have influenced, not only the people of America, but of

the whole world. The first peace society was formed in New York, 1815,

followed by one in England the ensuing year. It was Burritt who

organized the Brussels Congress of Friends of Peace in 1848 and this was

followed by the important gatherings in Paris, Frankfurt, London,

Manchester, and Edinburgh. The great congress in Paris (1849) was

presided over by Victor Hugo. Then there burst upon the world a series

of wars, beginning with the Crimean War and the war in Italy, followed

by the Austro-Prussian War and the Franco-Prussian War, and the peace

movement was stilled for a full generation. Presently, there came

renewed interest. Men began to examine the records of peaceful

settlement of disputes; they found hundreds of instances of successful

arbitration, our country—direction having been given to it by the Jay

Treaty—being distinctly a leader in this field. They found that the

awards of the arbitral tribunals were uniformly respected, that it was

not necessary to use force to execute the verdict.

It has been suggested that possibly one explanation of this fact is that

the more acute questions, over which there was great popular feeling,

were not submitted to arbitration. However this may be, the fact is that

we had an unbroken record of the acceptance of the verdict of arbitral

tribunals until within the last few years. The apparent exception in

this record is the arbitration over the Canadian boundary between Great

Britain and the United States. It was found that the arbitrator, the

King of the Netherlands, had exceeded the terms of the “compromise”—the

agreement under which the arbitration was submitted—and the award was

set aside by mutual agreement of the two countries, so that this case

can not really be looked upon as a refusal by the loser to accept the

award.

Within the past few years we have seen arbitrations thrown down by three

South American and Central American countries. I do not feel that this,

either, is very significant, because of the character of the countries

which brought about this break in the long and splendid record. Owing

either to their undeveloped condition or to the nature of the people, or

both, these countries are frequently unable to maintain law and order

within their own borders and are at times either unwilling or unable to

carry out the verdicts of an international tribunal. It would therefore

seem unfair to let a valuable principle suffer because it has been

disregarded by a people whose backward condition makes it unlikely in

advance that they will prove equal to the task of living up to it.

From this general criticism of the Latin-American countries must be

excepted what are known as the “ABC” countries. Two of them, Argentine

and Chile, enjoy a stable government. The stability of the other,

Brazil, is less certain but still sufficient to place it among the

progressive Powers of the world. This term, progressive Powers, I shall

have occasion to use later and therefore should like to define it now.

It is a mistake to follow the common disposition of the times and

measure progress in terms of numbers—growth of population, pounds of

steel, or yards of cotton turned out. Progress is to be sought in things

other than the material, in the growth of the ethical, intellectual, and

spiritual forces, above all, in justice: social justice, the justice of

man to man, justice of employer to employe, justice of the State towards

its people, justice written in the law, and justice of nation to nation.

Now, this recognition of the success of arbitration, combined with a

realization of the unintelligent methods by which countries regulate

their relations with each other, and above all the waste and danger of

competition in armaments, led to the call for an international

conference which met at The Hague in 1900. No progress whatever was made

at the conference on the question of disarmament, for which primarily

the conference was called. But there did emerge from it new institutions

which were not looked for but which were a real gain to the world. I

refer first of all to the Permanent Court of Arbitration, which you will

remember has decided several difficult questions, among them the Casa

Blanca affair between France and Germany, at one time quite acute. There

emerged also an international Commission of Inquiry, which, in 1904,

proved of the highest value. You will remember that the Russian Admiral

Rodjesvensky, emerging from the Baltic, thought that he discovered an

enemy in some innocent English fishermen. He attacked them sank a ship

and killed several men. Now, in the minds of many men that incident

might have led to war the next day—a generation before it would

undoubtedly have led to war. But there happened to have been set up by

the First Hague Conference this institution, the Commission of Inquiry.

The question was referred to it and it was found that Rodjesvensky,

however foolishly, still honestly believed he saw in these fishermen

Japanese warships. Moreover time was given for national passion to

subside. As a result there was no war between Russia and England and in

the opinion of statesmen of the day, the fact that there was no war was

due largely to the existence of this institution.

Then, too, at the First Hague Conference, Good Offices and Mediation

were recognized for the first time as friendly functions. It was agreed

that if a country should offer its good offices to two countries on the

verge of war, or at war, this act should not be regarded as unwarranted

interference but as a friendly act. It was under that institution, you

will remember, that Mr. Roosevelt succeeded in bringing Japan and Russia

together at Portsmouth and so terminating, earlier than would otherwise

have been the case, the Russo-Japanese War. A second peace conference

took place at The Hague in 1907. The task of improving the rules of war

which had been begun at the First Conference was carried forward at the

Second Conference. The Second Congress, moreover, adopted in fact an

institution known as the International Court of Prize. Then it adopted

in principle the Court of Arbitral Justice, intended to be a true

international court of justice, composed of judges by profession, whose

tenure should be permanent. This latter institution was to be brought

into being through diplomatic channels as soon as the nations should

agree upon the method of selecting the judges. The reason the court is

not in existence to-day is that up to this time such a method of

selecting the judges has not been found, and this is one of the subjects

up for discussion this afternoon.

Now, why did the Second Hague Conference vote for this Court of Arbitral

Justice when we already had in existence working successfully, the

Permanent Court of Arbitration set up by the First Hague Conference? The

reasons were several. In the first place, the Permanent Court of

Arbitration was not a court of law. Its decisions were to be based upon

the principles of law but at the same time its functions were those of

arbitration, and, as you know, the main object of the arbitrator is to

bring about the settlement of a dispute. That is to say, he is more

interested in that, which often involves compromise, than he is in

bringing out the true justice of the case which would tend to develop

the principles of law and enlarge accepted practice.

Now, those of us who believe in this true court of justice for the world

feel that international law would be built up by it in two ways. First,

it would grow through the decisions of the judges themselves in cases

actually coming before them, the judge being governed by previous

decisions of the Court—the way in which the great Common Law of England

has grown. That process produces the most natural, healthy, sound, and

permanent kind of law. Then it is felt that the existence of this court

will invite the codification of certain spheres of law. An example in

point is the way in which the provision for the International Court of

Prize led to the London Conference of 1908–1909, at which the law of

prize was codified. England declined to proceed with the project of the

International Prize Court until that was done. Hitherto the law of prize

has depended upon the interpretation each nation has placed upon it. One

nation might set up as contraband that which another nation declined to

accept as contraband. Questions of how long an enemy’s ship should be

suffered to remain in a neutral port, whether merchantmen may lawfully

be converted into armed cruisers after leaving home waters, and numerous

similar questions, were differently answered by different countries.

England said “we must know what we are undertaking.” Therefore, at her

instance the conference met at London and evolved the London Convention

which codifies the law of prize. When the present war began, Germany

announced her willingness to accept the Convention. On the other hand,

England, who had not yet ratified the Convention (owing to the

opposition of the Lords), proceeded to modify it and proclaimed it in

this modified form. France did the same. It was accepted in its original

form by the United States Senate but not promulgated by the President,

who took the position that the United States could not accept a

convention in which several nations had introduced their own amendments

not agreed to by all. But the history of the London Convention shows how

the existence of an international court will invite the codification of

certain spheres of international law. I use that term advisedly because

it is a tremendous undertaking to codify the whole body of international

law, nor is it certain that it is advisable so to do. It may become too

rigid.

Now, that project of the Second Hague Conference, the Court of Arbitral

Justice, was accepted by the forty-four nations participating in the

conference. It was indorsed in 1912 by the Institute of International

Law. It has been supported earnestly by all the Powers, including

Germany, France, and England; and every lawyer, every man who feels what

justice means, approves of it. There is no difference of opinion as to

the desirability of putting it into effect. The name of the proposed

court, the Court of Arbitral Justice, is misleading. The word “arbitral”

does not belong there. It was put in because Germany insisted on its

being there. The word “court” carries with it the idea of obligation.

When a court in municipal law renders a decision, usually an obligation

goes with it. Now, Germany was not ready for anything obligatory in

international institutions; therefore her demand. But a true court of

justice is none the less provided for by the convention. From time to

time for generations, isolated individuals have put forward the idea of

such a court. The present movement to create it was really born in the

mind of a man who sits upon this platform, James Brown Scott. He was

connected with the Department of State under Mr. Root, and, as Mr. Root

himself expressed it, he talked with Mr. Root once too often about this

court. The result was that the American delegation to the Second Hague

Conference went there with instructions from Mr. Root to establish the

court if possible. Mr. Scott took an active part in drawing up the

convention relating to the court and has been an earnest worker in the

cause ever since. He has gotten a lot of us interested in it and may be

said to be the father of the modern project.

In 1910 we formed a society known as the American Society for Judicial

Settlement of International Disputes to promote this court.

The society has had four annual meetings, the proceedings of which have

appeared in four substantial volumes. Besides, it publishes a quarterly

usually limited to one article on the subject by some prominent man. The

Proceedings have been translated, have been liberally quoted by foreign

publicists, and have made a profound impression upon public opinion not

only here but in other countries. The distinguished Foreign Minister of

The Netherlands, Jonkheer Loudon, said we had demonstrated the

feasibility and the necessity for this world court.

The Proceedings and the papers in the Quarterly published by the society

have been of a scientific character designed to examine the project and

to expose the principles which should guide the founders of the court

and govern the court itself when established. But Mr. John Hays Hammond,

an ex-president of the society, was not satisfied that this project

should remain in the academic stage. He conceived the idea, with Dr.

John Wesley Hill, of a public propaganda in the United States in favor

of it. We have had several meetings in the West, a very large one in

Akron, and a number in the East, all of which culminated in The World

Court Congress held May 12, 1915, in Cleveland, Ohio.

Now, conjointly with this project there is in the minds of many of us a

desire to have the world go a step farther and introduce the element of

obligation.

Mr. Hamilton Holt is one of the principal advocates of this latter idea,

which is nothing less than a league of peace. The subject was put

forward by him in September in _The Independent_. Then he came to me

with the suggestion that we should have a public conference. We first

got together a group of about twenty scientific men, professors of

political science, of international law, of history, of economics, threw

the subject into the arena and had it torn to pieces by them at three

meetings held at the Century Club in New York. In this way was worked

out what we regarded as a “desirable” plan. We then took this

“desirable” plan and on April ninth, laid it before men of wide

practical experience, including Mr. Taft and Mr. A. Lawrence Lowell, in

order to ascertain how much of it was, in their opinion, a “realizable”

project. It was found that they were not ready to accept as realizable

the whole of the plan of the first group, which was practically this: a

league of peace which shall bind its members to resort to a tribunal for

the settlement of all disputes to which a member of the league may be a

party, and obligate them to use force, if necessary, both, to bring the

nation law-breaker into court and to execute the verdict of the court.

Now, when you introduce the element of force into your plan you find

that the unanimity of opinion to which I have referred as applying to

the Court of Arbitral Justice as at present proposed, and to similar

purely voluntary institutions, no longer exists; that there is very

great diversity of opinion as to whether force should be used against a

nation under any circumstances. The reason for this diversity of opinion

is the shortcomings of the leagues of the past. The Quadruple Alliance,

the Grand Alliance, and the Holy Alliance, all formed immediately after

the Napoleonic wars, were by no means wholly beneficial. The Holy

Alliance set up between Prussia, Russia, and Austria in 1815, ostensibly

to promote Christianity, but really to support dynasties and combat the

democratic tendency of the times, operated in fact to suppress liberty

in Hungary, in Italy, and in Spain. You will remember that it was the

Holy Alliance acting through France as a mandatory which overthrew the

liberal form of government in Spain and restored full autocratic powers

to the king. Then there were the partial successes and many failures of

the Concert of Europe. The Concert of Europe has done some good things.

It smashed the Turkish fleet in 1827 and liberated Greece. It has

prevented more than one Balkan war. It has improved the lot of the

Armenians in Turkey. But it has had many failures, this present

disastrous war the most conspicuous of them. Then there were these

groups like the Triple Alliance and the Triple Entente, which, though

set up for purposes of peace, have really given to the present war its

broad character. All of us felt that owing to their existence, when war

came again to Europe it must be a general war. The breaking out of war

surprised many people; its extent surprised no one.

Manifestly, then, the first step in planning a league of peace is to

find out why the leagues of the past have failed. I think the answer

lies in one thing: the narrowness of the group composing the league,

permitting of the triumph of selfish interests, permitting of collusion,

the swapping of favors, and resulting in injustice and oppression. That

is what men fear.

Now, many of us believe that if we can set up a league so broad as to

include all the progressive nations, big and little, it will be

permanent and successful. I have defined what I mean by the word

progressive. Such a league would include the eight great nations of the

world, among them the United States and Japan. It would include the

secondary Powers of Europe—Switzerland, Norway and Sweden, Denmark,

Belgium, such as it was and such as it will be again, Spain, Greece, and

in fact, all the countries of Europe, with the possible exception of

some of the Balkan States and the certain exception of Turkey. The “ABC”

countries of South America would also be included. It would not include

the backward countries, because we feel that the country which can not

maintain law and order within its own borders would bring no strength to

the league.

Now, we believe that such a group would be successful. In the first

place, it would embrace three great nations with common political

ideals—England, France, and the United States. I put our country last

for reasons of politeness only. These three peoples feel that democratic

government is no longer a passing phase of political experiment but a

permanent fact in politics. Therefore they would cling together. Then

you have in the group two great nations—Great Britain and the United

States—who may be said to be satisfied territorially; you have the

secondary Powers of Europe who have no disturbing ambitions and whose

voice would be for reason and justice, so that we think that if we could

get these states associated together in a league, substantial justice

would emerge, just as substantial justice results from the united action

of the forty-eight states composing the American Union.

Whether you believe this league is practical or not depends on your

answer to that question: whether justice would emerge from its united

action. Unless it does justice it can not endure. Unless it does justice

we don’t want it: we don’t want oppression. Injustice within a

country—persistent injustice—sooner or later brings war; if not civil

war then foreign war, or both; just as gross injustice in the conduct of

a war will draw into the struggle an ever widening circle of nations,

because there are irresistible forces which insist that justice shall

emerge finally in the world.

Now, it was not proposed that this league should itself pass upon

disputes. All it would do is to insist that members, party to the

league, or any nation having a dispute with a member of the league shall

not resort to war. It may refer the disputants to existing institutions

at The Hague or to other institutions to be hereafter set up. They shall

be privileged to go on with their dispute indefinitely if they choose,

but they may not resort to war. The United States, under this plan,

would have been permitted to continue the Fisheries dispute with Great

Britain, as it did, for three-quarters of a century without

interference; but if either Great Britain or the United States had shown

a disposition to resort to arms the league would have been invoked and

would have used its combined forces to prevent aggression.

There are four ideas or stages in the conception. The first is simply a

true court of justice to which nations may refer their disputes, if they

see fit to do so. This is the court called for by The Hague Convention

of 1907 under the name of the Court of Arbitral Justice. It is the court

which the Judicial Settlement Society was organized to promote. It is

the court which we are endeavoring to get realized—simply a voluntary

institution. Now, why did the World Court Congress plan to confine its

efforts, its propaganda, to this voluntary institution, free from any

element of force? I repeat, it is because there is unanimity of opinion

as to the desirability of the project. You find no objectors to it.

Practically all the Governments of the world have endorsed it, peoples

have endorsed it, experts and plain men have endorsed it. In other

words, it is a realizable project.

Now, the second stage of the larger and more problematic project is a

league in which the element of obligation enters to this extent, that

the members of the league, if you call it such—parties to the

treaty—should obligate themselves to resort to the court. At present

there is no obligation embodied in The Hague Convention. Like all our

other international institutions, it is there for the nations to use or

not, as they like.

In the third stage, the element of obligation is extended to forcing the

nations into court. That is to say, if war threatens, we say to the

disputants, “You must refer this dispute to the court. We will not force

you to carry out the award nor do you bind yourself to do so, but you

must go into court and have a hearing.”

Now, many men have come to realize that publicity is three-quarters of

the battle for justice. Very often simply bringing out the facts stops

not only illegal practices, but also unjust practices not covered by the

law, and does it without resort to a court or even to arbitration.

The fourth stage is enforcing the award admittedly giving rise to the

danger of oppression unless you have all the progressive nations in the

league so that substantial justice would result from its action. The

meeting of April 9th, to which I have referred, was unwilling to accept

the fourth stage of this plan, namely: enforcing the verdict. Men like

Mr. Taft, with his wide experience, Mr. Lowell, who has made a study of

governmental institutions, in fact all except two out of the twenty

eminent and experienced men gathered at that meeting, were willing to

adopt the first three stages of the plan as a “realizable” project,

namely, the court, for which this convention stands, the obligations of

the States to each other to go into court, and the obligation of the

league to force the nation law-breaker into court if recalcitrant.

If there is no obligation on the part of the nation entering the court

to abide by the verdict and the league itself will not enforce the

verdict, surely no oppression can result from the demand for a hearing.

It is a reasonable demand as applied to any controversy whatsoever,

whether it be a justiciable controversy or a controversy arising out of

a conflict of political policies. The league would simply act as an

international grand jury to hale the nation law-breaker into court for a

hearing. That is as far as the meeting of April 9th was willing to go,

and that is the project, represented in the recent World Court Congress.

By starting with this minor project we get something which is

practicable and out of the minor project, the larger plan may grow of

its own accord.

THE WAR’S POSSIBLE DURATION

THE PROBLEM OF THE EXHAUSTION OF THE NATIONS ENGAGED—THEIR ENORMOUS

RESOURCES AND COMPARATIVELY SMALL EXPENDITURE OF WEALTH AND MEN

BY

GEORGE K. SHAW

As bearing upon the question of the ability of the warring nations to

continue the war indefinitely, Hudson Maxim’s book, “Defenseless

America,” contains some interesting figures and comparisons. “We hear,”

he says, “Much about the tremendous burden of the present conflict. The

pacifists tell us that the nations engaged are destined to exhaust

themselves, and that, when the war is over, we need have no fear of any

one of them or of a coalition of them, because they will have neither

men nor money with which to fight.”

Mr. Maxim assumes that the first year of the war will cost the warring

powers fifteen billions of dollars. But this is only five per cent. of

their total wealth, which is estimated at $300,000,000,000.

It must also be remembered that the same thing largely holds true in

regard to war expenditures that holds true of current expenditures in

time of peace. The cost, for the most part, comes out of the ground. The

world makes its peaceful expenditures and not only recompenses itself

from production, but actually adds to capital. In war, of course, there

is a lot of non-productive expenditure, but on the other hand there is

some added stimulus of production and greater enforced economy in

everything save in the actual expenditures for carrying on the war. And

in the labor of producing war material, transportation and feeding of

armies, pay of the soldiers and for all labor incidental to the

activities of the war, the money spent is chiefly returned to the people

themselves. Labor in all the warring countries is now more highly

compensated than it was prior to the war. Mr. Hudson estimates that the

actual out-of-pocket loss to the nations in the present war, taking into

account the compensating economic advantages, will not exceed two and

one half per cent. for the first year’s operations.

In regard to loss of population Mr. Maxim’s figures are equally

striking. The population of the warring nations is more than four

hundred millions, taking into account only such part of the East Indian

population in proportion to the percentage of troops furnished by them

as compared with the percentage furnished by the United Kingdom to the

number of its inhabitants. The total number killed and wounded in the

whole war, on both sides, during the first six months may be stated at

about two millions. Consequently the total loss in killed and wounded

during the first six months was less than a half of one per cent. of the

populations engaged. Many of the wounded suffer very little permanent

injury, and the number killed does not exceed ten per cent. of the total

of killed and wounded. Therefore the loss of killed and permanently

disabled is much less than half of one per cent., and for the first year

will hardly exceed one per cent.

If these estimates are anywhere near correct, it would be a long time

before the nations engaged in this gigantic war could be exhausted

either in wealth or men.

Some interesting light is thrown upon the ability of one of the warring

countries, Germany, to carry on the war indefinitely by a letter written

by Prof. Max Sering, of the University of Berlin, to W. S. McNeill, of

Richmond, Virginia, and published in a recent issue of the New York

_Times_. Prof. Sering was asked by Mr. McNeill for information as to

whether Germany would be able to get along with her food and war

material supply. Heretofore, he says, Germany has been in the habit of

importing from one fifth to one fourth of all her food material and

foodstuffs. The shutting off of her sea commerce led to a search for

substitutes and also to governmental regulations for economizing

supplies. As a result of the unceasing labor of scientists and practical

inventors, Prof. Sering announces that the problems of supply have been

completely solved in every direction. “We can now,” he triumphantly

announces, “continue the war indefinitely. The complete cutting off of

the supply of Chili saltpetre during the war has been made good by our

now taking nitrogen directly out of the air. With extraordinary rapidity

the question had been solved how the enormous quantities of the needed

ammunition was to be produced. It is, however, not only for the needed

explosives that we take the nitrogen from the air, but also for

fertilizers which we formerly imported in the form of Chilean saltpetre.

As for foodstuffs, the government, on February 1, 1915, took over all

the grain and prescribed to each one a certain portion of bread and

flour. In the beginning this portion was somewhat scant because we

wanted to be sure that our supply would last until the new crop. Now,

however, it is found that we are entering the new crop year with such

large stocks that the price of flour and bread could be reduced

considerably and the bread portion of the working population could be

enlarged. Potatoes, also which for a time were very expensive, have

lately become quite cheap. Unemployment is now less than before the war,

the workmen receive higher wages, and the masses are well nourished. The

supply of meat will become somewhat scant by and by, but that does not

matter, as we have been in the habit of eating too much meat.”

As the war proceeds it is inevitable that the other countries engaged in

it, whether hostile or friendly, will take example from Germany and

resort to measures to conserve and increase their material resources.

Modern science has wonderfully unlocked the storehouses of nature, and

increased energy and industry can to some extent make good the waste and

destruction of war. We cannot therefore expect to see the war end very

soon from the exhaustion of any of the combatants. This is the outlook

of the war in its physical aspect. What political or moral forces may be

evoked to shorten it is beyond our ken.

Mr. Hudson Maxim’s book was written to call attention to the practically

defenseless condition of the United States and to urge adequate

preparation. We do not care to follow him in his voluminous argument on

this score, but the concluding paragraph of his ninth chapter, to the

effect that “when the war is over, any one of the warring powers, unless

Germany is exceedingly humbled, will be in better condition in every way

to fight the United States than it would have been before the war broke

out,” is worthy of careful consideration. Of course Mr. Maxim means any

one of the great powers, but we should be in danger, if in danger at

all, from no more than three. These would be Great Britain, Japan, and

Germany, as these are the only powers that possess navies strong enough

to carry on operations across the seas against the United States, even

in our present condition of unpreparedness. And no one of these could

afford to attack us unless the others would give tacit consent, or agree

to remain neutral. Perhaps after the war is over, however it may end,

the European peoples would be so weary of war that they would not permit

their governments to stand in the way of any nation that might want to

attack this country, and hence that we should have to rely entirely upon

our own strength for defense. The question of how much naval and

military preparation we should make against future contingencies is a

vital one and cannot be ignored. Everybody is in favor of peace. The

question is, which is the surest way to peace?—unorganized helplessness,

or organized strength?

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