BY
EMERSON McMILLIN
“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.
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.
The International Court of Prize, established by the second Hague
Conference, fulfils still another function. It is a war court, as its
title indicates, and has no jurisdiction over controversies arising in
times of peace. The Court of Arbitral Justice, now under consideration,
while it may be called upon to deal with disputes arising out of war, is
primarily intended to decide questions of law founded in justice in such
manner and at such time as to prevent war. It is to be noted furthermore
that the object is not merely to settle an issue temporarily. Temporary
settlements are compromises and can be reached by resort to the Court of
Arbitration. Questions of law must be so disposed of that each of the
contending parties will immediately or in the long run assent to the
basis of the settlement, not merely because it is according to law but
because by common acceptation it is believed to be just. In other words,
the chief function of the proposed court will be to guide and direct the
hearts as well as the minds of men toward the eradication of those deep
seated causes of difference which have plunged nations into war. In
defending the method of balancing the departments of government set up
in our constitution, Hamilton pointed out a truth which has become
fundamental to the American student of Political Science. His
observation is applicable to international affairs. “Justice,” says
Hamilton, “is the end of government; it is the end of society; it ever
has been and ever will be pursued until it be obtained or until liberty
be lost in the pursuit. In a society under the forms of which the
stronger faction can readily unite and oppress the weaker, anarchy can
as truly be said to reign as in a state of nature where the weaker
individual is not secured against the violence of the stronger.”
(Federalist 51).
One of my associates has described wars growing out of deep-seated
differences between nations as earthquake wars. I like the expression,
for it conveys to the mind the inevitable result accompanying
fundamental differences which, boiling up within, crack the surface of
our good intentions. The ultimate object of the establishment of a Court
of Arbitral Justice is to prevent these abysmal disturbances which, if
allowed to exist, will sooner or later destroy any institution,
political or judicial, set up by the nations. The immediate object is to
come to a common understanding of international justice, and to
formulate rules for the conduct of nations based on that understanding.
At this point a difference appears which apparently contributed largely
to the defeat of the Article of the first convention of the second Hague
Conference, under which, had it been adopted, the Court of Arbitral
Justice would quickly have come into existence. The relation of the
judicial to the other departments of government under our constitutional
system is radically different from that with which other nations are
familiar. While there has of late been much agitation of the question
whether the Supreme Court of the United States ought to be permitted to
overrule the will of the people expressed through legislative bodies, it
is nevertheless fundamental to our system that the Supreme Court stands
above the legislative and the executive when a constitutional question
is at issue. We have deliberately and wisely set over our institutions
of government this great tribunal which protects the individual, whether
the weakest human being or the latest artificial person created under
the law. When the question of the composition of the Court of Arbitral
Justice was under discussion at the Hague in 1907, M. Barboso of Brazil
brought in a proposal providing for the equal representation of the 46
nations in the composition of the Court, dividing the whole body into
three groups to serve for a period of three years each in the total of
nine for which they should be chosen. This proposal was afterward
withdrawn by its author, but the Significance of the suggestion lies in
this, that the delegates from Brazil conceived of the Court as a body of
representatives of the several powers. As has been frequently pointed
out, such a body would be a judicial assembly, not a judicial court,
better calculated to frame codes than to weigh legal principles. But the
fact was that M. Barbosa did not believe in the plan of an International
Supreme Court. To his mind and to the minds of all of those who oppose
the American conception of the relation between the legal and political
arms of government, such a court of justice would subordinate
sovereignty. Such a court to their minds is inconsistent, as Mr. Scott
has pointed out (Hague Conferences, vol. I, pp. 458–9), with the
sovereignty of nations. At first sight, there appears to be little
reason why the method agreed upon for the constitution of the
International Prize Court should not be applied to the selection of
judges for the Court of Justice. A little reflection, however, reveals
an important difference. As already pointed out, the Prize Court is
organized to settle international questions arising out of war. There is
little objection, therefore, to the arrangement for rotation in office
of the judges. When, however, as in the case of the proposed Court,
there is set up a body which is given jurisdiction over questions of
international rights with powers like those of a common law court to
evolve by the cumulation of their decisions new rules of international
law, it is easy to perceive why all the powers represented at the Hague
agreed that the judges sitting in this court must possess the highest
qualities of judicial mind and learning.
Enough has been said by way of introduction, to lead up to the main
question, the minimum number of nations required to successfully
inaugurate the court. Mr. Thomas Raeburn White, speaking at the third
national conference of the American Society for Judicial Settlement of
International Disputes, in December, 1912, analyzed the articles of the
convention providing for the establishment of the court and showed that
the question was clearly left to the powers represented at the
conference and could be adopted by any two or more of them when they saw
fit. There appears to be no serious dissent from this proposition.
Therefore, the question is not whether two nations may of right
inaugurate the court, but whether two nations can successfully set it
up. What is meant by successfully? Undoubtedly this: that, when the
court is set up by two or more nations, it will be resorted to not only
by the nations inaugurating it, but by others for the settlement of
those great questions of international right which the framers of the
convention had in mind when formulating the organic act.
Our able and far-seeing Secretary of State, Elihu Root, in issuing
instructions to the delegates of the second Hague Conference, set before
them a distinction which I believe ought never to be lost sight of in
providing for the establishment of this court. He said in substance that
the court should be composed of judges representing the several great
juridical systems of the world. What this court must undertake to do, if
it is to lead men and nations to accept a common standard of
international right, is to reconcile whatever differences now exist in
the minds of men, concerning the essentials of justice. If men living
under one system regard conduct as just which men living under another
system think unjust, it is obvious that these differences must be
reconciled. Hence, the success of the court will be more nearly assured
if it is inaugurated by two nations of opposite juridical experiences
and concepts than if inaugurated by several times that number, all bred
under a single system. The nations represented at the Hague Conference
all draw their juridical systems from one of two sources, the Civil Law
of Rome or the Common Law of England. Among the large number deriving
their systems from Roman origin, there are many and important shades of
difference, and in some of the nations which in recent years have
reorganized their codes both sources are drawn upon. Nevertheless there
is generally speaking, this difference of origin to take into account.
Among the eight Great Powers above named, the British Empire and the
United States are the Common Law nations. The other six are inheritors
of the Roman system. In a general way, these six fall into three groups,
Germany and Austria in one, France and Italy in another, and Japan and
Russia in still a third, unless the last two should be treated
separately. It seems to me that the inclusion of representatives of the
different juridical systems is so important that it becomes
determinative. I should therefore say, the court can be successfully
inaugurated by four of the Great Powers, provided the four include one
nation of each of the following groups: