XXIV debts In one specific class of cases, however, the conference went to CHAP. the length of assuming a practically unqualified obligation to arbitrate. A Convention respecting the Limitation of the Employment Disputes involving of Force for the Recovery of Contract Debts was adopted, in ac- contract cordance with which the contracting powers "agree not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due to its nationals." An exception was noted in case the debtor state refused to arbitrate the case, or failed to carry out the award of the tribunal. The Covenant of the League of Nations advances a step beyond the Hague Conferences toward making arbitration compulsory, but stops short of creating a legal obligation. Article 12 pledges the members of the League, in the event of a dispute arising between them, to submit the matter either to arbitration or to inquiry by the Council. Article 12 stipulates that matters suitable for submission to arbitration must be so submitted, and it enumerates as such disputes involving the interpretation of a treaty, questions of international law, questions of fact bearing upon the breach of an international obligation, or the reparation to be made for such breach. The obligation created by Articles 12 and 13 consists, therefore, primarily in the recognition of a general principle; but it contains an element of compulsion in that the alternative to arbitration must be submission of the dispute to inquiry by the Council. 2 obligations Covenant of under the the League of Nations Hague Court of Closely connected with the progressive succession of steps f. The toward the adoption of a general international obligation to arbi- Permanent trate disputes within a restricted field have been the measures taken Arbitration to secure the establishment of an international court of arbitration. These measures may be divided into two distinct groups. In the first place there was the transitional stage in which the community of nations, without seeking to intervene in any way between two contending states, endeavored to advance the practice of arbitration by facilitating the selection of judges and giving greater assurance of their fitness for their task. With this object, the Hague Peace Conference of 1899 created the new Permanent Court of Arbitration, which consisted in a list of judges available at all see Higgins, The Hague Peace Conferences, 82-84; Scott, The Hague Peace Conferences of 1899 and 1907, I, 330 ff. 1 3 For the text of the convention, see Hague Conventions, 89. 'See below, p. 417. 'Art. 15-57, Convention for the Pacific Settlement of International Disputes. Hague Conventions, 55 ff. CHAP. Judicial settlement versus arbitration times and acting, in default of an agreement to the contrary between the parties, in accordance with fixed rules of procedure. These judges, selected by the signatory powers to the number of four each, were to be persons of "known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of arbitrators." Upon having recourse to the Permanent Court, the contending parties were to choose their arbitrators from the general list, each party appointing two arbitrators, who together were to choose an umpire. This latter feature was modified by the Hague Conference of 1907 by the provision that of the two arbitrators appointed by each party only one should be its national or chosen from among the persons nominated by it as members of the court.2 The provisions of the convention encroached, therefore, to but slight degree upon the free choice of the arbitrators by the contending parties. Details of procedure were provided for, failing agreement between the parties upon a special procedure." The second group of measures for the establishment of an international court had a fundamentally different object. They proposed that the arbitration of disputes by temporary tribunals established by the contending parties should be accompanied, and if possible, replaced by the judicial settlement of disputes at the hands of a permanent international tribunal. The theory came to be widely held at the Second Hague Conference not only that disputes between states would be more readily disposed of if a truly permanent judicial tribunal were established, but that such a tribunal, sitting continuously and possessed of a sense of judicial responsibility, would further the development of international law by building up a system of international jurisprudence in the form of precedents having the force of law. The establishment of a permanent court would, it was said, tend to promote the pacific settlement of international disputes by insuring, in cases where legal rights were at issue, a decision on the basis of law rather than one on the basis of compromise, to which arbitration courts were naturally inclined. The court proposed was to be "freely and 1 Art. 23. 3 'Art. 45. 'Chap. III. It should be observed that in spite of its title the Permanent Court of Arbitration was not a standing tribunal, but merely a group of judges from among whom special arbitrators might be chosen in each case. The fact that certain members of the Court, e.g., Lammasch of Austria, sat on more than one tribunal was an accident of choice, not part of the prescribed plan. The arguments in favor of judicial settlement, both those presented to the conference and those subsequently advanced by the chief proponents of “judi XXIV easily accessible, composed of judges representing the various judi- CHAP. cial systems of the world, and capable of insuring continuity in arbitral jurisprudence."'1 The establishment of an international court presented two distinct difficulties. The first was that of deciding upon the composition of the court. A court of some forty-five members, representing each of the members of the community of nations, was obviously too unwieldy to be practicable. A smaller court, it was thought, must necessarily favor the larger as against the smaller states. In consequence of the sharp division of opinion upon this point it was found impossible to reach a satisfactory compromise.2 The conference therefore adopted a "Draft Convention Relative to the Creation of a Judicial Arbitration Court," in which the organization and procedure of the new court were prescribed in detail, but no mention was made of the selection of the judges. In general the judges were to be "chosen from persons of the highest moral reputation, and all fulfilling conditions qualifying them, in their respective countries, to occupy high legal posts, or to be jurists of recognized competence in matters of international law.”’4 In the final act of the conference a formal vœu or wish was expressed in which the conference called the attention of the signatory powers to the advisability of adopting the annexed draft convention for the creation of the Judicial Arbitration Court, and of bringing it into force as soon as an agreement had been reached respecting the selection of the judges of the court." The Judicial Arbitration Court The second problem was that of determining the jurisdiction Jurisdicof the court. In consequence of the unwillingness of a number of tion of the cial settlement," may be found in J. B. Scott, An International Court of 1 Art. I of the Draft Convention. For a discussion of the various compromise plans proposed by the advocates of the court, see Higgins, Hague Peace Conferences, 514 ff.; Scott, Hague Peace Conferences of 1899 and 1907, I, 437 ff. For the text of the convention, see Hague Conventions, 31; Higgins, op. cit., 498. It should be observed that the court is also known in the United States as the "Court of Arbitral Justice," the name given it by the American delegation at the Hague. Art. 2. The court was, moreover, to be composed of judges "representing the various judicial systems of the world, and capable of insuring continuity in arbitral jurisprudence. (Art. 1.) "Hague Conventions, 28. In 1909 Secretary Knox proposed to the signatory powers of the two conventions that the International Prize Court created by the convention of 1907 be invested with the functions of the Judicial Arbitration Court; but the question of the composition of the court continued to be the stumbling-block. See Am. Journal, ÏV (1910), 163, Supp., 102. court CHAP. The Inter national Prize Court g. The Permanent Court of International Justice states to obligate themselves to arbitrate even a limited number of In addition to the proposed Judicial Arbitration Court the Second Hague Conference created an International Prize Court for the settlement by a permanent tribunal of the special class of disputes growing out of the capture of national property by belligerents in time of war. Both in its organization and in its jurisdiction this court marked a significant advance toward the establishment of international judicial tribunals. The problem of the composition of the court, presenting difficulties similar to those which defeated the creation of the Judicial Arbitration Court, was solved by granting to the great powers a permanent representation on the tribunal and to the smaller powers a periodic representation, based upon a system of rotation which gave longer terms in proportion to the political rank of the state. In respect to jurisdiction, the court was given the authority to hear cases on appeal from the national courts, whether brought by neutral states themselves or by neutral individuals. While the convention establishing the court was signed by a large majority of the powers assembled at the conference, subject in certain cases to reservations, it was not ratified by the respective states, chiefly on the ground that before the court could function satisfactorily it was necessary to formulate an adequate body of maritime law." In view of the failure to establish the proposed Judicial Arbitration Court, the signatory powers of the Covenant of the League of Nations made provision that the Council should "formulate and submit to the members of the League for adoption plans for the establishment of a permanent Court of International Justice."'" For the text of the convention, see Hague Conventions, 188; Higgins, op. cit., 407. Art. 15. For discussion of the method of rotation, see Higgins, op. cit., 439; Scott, Hague Peace Conferences, I, 457. Art. 1-6. For the relation of the International Prize Court to the Declaration of London, see below, p. 553. 'Art. 14. XXIV In pursuance of this agreement an Advisory Committee of Jurists CHAP. met at the Hague in June, 1920, and drew up a Draft Scheme for the Institution of the Permanent Court of International Justice.1 This scheme dealt with the two fundamental problems of the organization and jurisdiction of the proposed court as follows: the court was to consist of fifteen members, eleven judges and four deputy judges, to be elected by the Assembly and the Council of the League from a list of persons nominated by the judges forming the Hague Permanent Court of Arbitration, acting for this purpose by national groups. The qualifications of the judges of the new court in respect to moral character and legal competence followed the provisions of the Hague conventions, and it was particularly stressed that not only should the individual judges possess the qualifications required, "but the whole body also should represent the main forms of civilization and the principal legal systems of the world." The jurisdiction or competence of the court was defined as being "to hear and determine cases of a legal nature concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature and extent of the reparation to be made for the breach of an international obligation; e. the interpretation of a sentence passed by the Court." Further, it was provided that in the event of a dispute as to whether a certain case came within any of the categories enumerated, the matter should be settled by the decision of the Court." 4 of the court When presented to the Council and the Assembly of the League, The Statute the draft scheme was amended in a number of points, particularly in respect to the provisions for obligatory arbitration within the prescribed field. The jurisdiction of the court was, in so far as the members of the League as a body were concerned, limited to comprise "all cases which the parties refer to it and all matters specially provided for in treaties and conventions in force."" Provision was made, however, that individual members of the For the text of the draft scheme, see Am. Journal, Supplement, XIV (1920), 371. Art. 3. Art. 4. 4 Art. 2, 9. Compare Art. 13 of the Covenant of the League of Nations. Art. 34. A further article (33) gave to the complainant state the right to bring the case before the court upon its own initiative when other means of settlement had failed. Art. 36. The article permitting process by action of the party complainant was omitted. |