The result was the adoption of the draft of a Judicial Arbitration Court, more popularly known as the Court of Arbitral Justice, which, however, failed of adoption as an actual international institution owing to the inability of the Powers to agree upon the manner of its composition.

This court, it is held, would possess several distinct advantages over the temporary arbitration tribunals previously resorted to. In the first place, the judges of the court would be in regular session at certain periods of the year, so that much of the delay incident to the constitution of special tribunals would be avoided. In the second place, the same judges would hear case after case, and thus be able to apply the same principles of law to cases presenting similar facts. The rule of precedent would thus come to control the decisions of the court, continuity would be given to its opinions, and as a result international law would be developed in much the same manner as the municipal law of each state is developed by the decisions of its judicial tribunals. In the third place, it is urged with particular emphasis that arbitration proper too often results in a compromise, and that the arbitrators are more concerned with finding a way of peaceably adjusting the dispute before them than with rendering a decision upon the precise merits of the case. While a decision by compromise may in many cases be desirable, there are, it is contended, many questions at issue between nations to which definite legal principles can be applied, and in these cases it is the proper function of the court not to split the difference in an attempt to satisfy both parties, but to decide strictly according to the law.

Now, a permanent court, acting in accordance with judicial traditions. and impressed with the responsibility of a body whose functions are continuous and whose decisions go on record as a whole, will be far more likely to work out a consistent rule of law for the decision of similar cases, than to seek merely to adjust the dispute so as to satisfy both parties. The force of this argument must be admitted; but in answer to the charge that arbitrators have frequently taken the easy road of compromise, it is but fair to say that in many cases the resort to compromise has been due not to a preference for that form of settlement, but to the fact that the arbitrators were at a loss to discover a legal basis for their decision. Should an international legislature, whether in the form of Hague Conference or otherwise, succeed in enlarging the domain of international law by defining its rules more in detail, the international court will find little difficulty in choosing in favor of a legal decision as against a compromise.

Notwithstanding the distinct advantages offered by the Court of Arbitral Justice, it was, as has been said, impossible to reach an agreement at

the Hague as to the composition of the court. To constitute a court of forty-five or more judges, one to be appointed by each of the states, would have been to reduce the proposal to an absurdity, and yet the majority of the smaller states were unwilling to admit any method of appointment which would infringe upon the principle of the equality of states. Various schemes were offered for the selection of a court of a smaller number of judges, the one emanating from the subcommittee in charge of the draft being a plan for a court of seventeen members, to be established for a period of twelve years, consisting of eight judges nominated by the great Powers for the full period, together with nine judges appointed by the other states according to a rotation which allowed longer or shorter periods of representation according to the relative size and importance of the respective states.

Precisely the same problems were presented there as Professor Minor has just been discussing in regard to the composition or organization of an international legislature. On the one hand, the equality of the states was insisted upon by the smaller and younger states of the world; and, on the other hand, the great Powers demanded larger representation corresponding to their power and influence.

Another plan attempted to meet the crucial difficulty of an unequal representation of the states by the formation of a series of electoral districts in which the smaller states were grouped together for the appointment of a single judge, while the larger states were to appoint each their own judge. Still other plans contemplated a court of some fifteen members chosen indirectly whether by the Conference itself, or by the existing Permanent Court, or by some other intermediary board; but since such a method would deprive the great Powers of a direct representation upon the court, the proposals proved unacceptable.

Dr. Hans Wehberg, in his recent volume entitled, The Problem of an International Court of Justice, argues convincingly in favor of an indirect method of appointment as being most consistent with the idea of a court representing, not the individual parties to the dispute, but the community of nations at large; and he distinctly rejects the plan of a representation of states upon the court. On the other hand, Professor Schucking, in his treatise on the International Union of the Hague Conferences, thinks it both reasonable, as consistent with historical development, that the great Powers should have a larger representation upon the court because of their greater interest in its establishment, and expedient that the smaller Powers should sacrifice a formal equality for the sake of an institution from which they will receive the greater protection. Dr. James Brown Scott, to whose

untiring efforts the adoption of the draft at the Second Hague Conference was largely due, proposes the creation of the court for the smaller group of Powers who are in favor of it, leaving it to the other states to have recourse to it subsequently if they so desire.

Indeed, I can hardly speak of the Court of Arbitral Justice without encroaching upon phrases already copyrighted by Dr. Scott, so familiar are we with the arguments that he has been putting forward for the last eight years.

That the difficulty is a real one must be conceded; that it is insuperable can certainly not be claimed. A spirit of coöperation based upon the relative insignificance of the interests sacrificed by comparison with the important advantages to be gained from a permanent court would make it relatively easy to secure a compromise of conflicting interests.

And I think that the compromise proposed by Professor Minor, to give representation on the basis of the white races and allowing one-third of the number of the colored races, is one of the possible plans that might be adopted.

To what conclusions, then, are we led? Shall the court of the new era of international reconstruction be modeled upon the lines of traditional arbitration tribunals, with their free choice of judges, with their temporary organization and their special rules of procedure and individual interpretation of international law and equity? Or shall it be modeled upon the lines of the Court of Arbitral Justice and be made to approximate, in respect to permanence and composition, to the supreme courts of federal empires? The choice of one or the other of these two plans will depend in large part upon the attitude we take towards what is the chief and perhaps most fundamental problem of all, the question of substituting for the present voluntary resort to the court some element of obligatory jurisdiction.

The idea of compulsion in international relations has met with strong resistance in the past. At the Second Hague Conference earnest efforts were made to secure the adoption of a convention providing for compulsory arbitration in a limited number of cases, none of which could be said to involve the "honor or the vital interests" of the parties, but the attempt was without success. The conference was, however, willing to go on record as "admitting the principle of compulsory arbitration" and favoring the unrestricted submission to arbitration of certain classes of disputes, in particular those relating to the interpretation of international conventions; but as it was not found possible to conclude a convention to that effect,

the pious wishes expressed by the conference were to the wise a confession of failure.

The difficulties in the way of compulsory arbitration are, it cannot be denied, very real ones. A court of obligatory jurisdiction, even though it went no further than to hear cases relating to the interpretation of treaties, would involve a serious infringement upon the jurisdiction of the highest national courts and necessitate a revision of the constitutional law of many of the states. But this domestic complication could, no doubt, be adjusted without serious opposition. Far more real, if it be not actually insuperable, is the difficulty of securing an agreement between the nations to renounce the right to withhold from arbitration that special group of cases which are said to involve "honor and vital interests." Now it must be frankly acknowledged that unless it be possible to secure an agreement to submit such questions to arbitration, it is idle to attempt to construct an international court; for these are the very questions which have led to wars in the past and will continue to lead to wars in the future. While it may have been wise in 1907 to seek to accustom the nations to the idea of judicial settlement by slow degrees, in the face of what has since happened we should be evading a solemn duty if we were to be satisfied with anything less than a general arbitration convention covering every dispute without reserve. This unrestricted obligation to arbitrate is the very corner stone of international reorganization.

The method by which the jurisdiction of the court may be made compulsory is a problem intimately associated with the executive organization which is to be part of the new era of international relations. It is one of the revolutions of opinion brought about by the present war that the idea of a league of nations to secure the peace of the world, which was not so much as discussed by the Second Hague Conference, has now been accepted in principle by the leading statesmen of America and Europe. Whatever form this league may take, its first task must be the creation of an international executive arm which shall be the authority behind the international court, both to compel the appearance of the disputants before it and to enforce the decision of the court when rendered. Doubtless this task will seem more within the range of possibility if we associate with it the duty of the international legislature to define more accurately the rules of international intercourse, and thus to lessen gradually the number of political disputes by bringing their subject-matter within the domain of international law.

Assuming that compulsory arbitration will become an actual fact in the future reorganization of the world, we can choose with less difficulty

between the various proposals for the composition of the international court. Even under the shelter of a league of peace, and with the guidance of an enlarged and more definite code of international law, it is too much to hope that political disputes will be in every case converted into legal ones. And if political disputes still continue to arise between the nations, it would seem that M. Bourgeois, words at the Second Hague Conference will be as true in the future as now, that nations will be unwilling to go before a court of arbitration in such matters unless they have had a final voice in the designation of the members composing the court.

On the other hand, the arguments in favor of a more permanent court for the settlement of disputes readily susceptible of legal decision are so convincing that it would seem quite feasible to follow the proposal of the Second Hague Conference and set up such a court side by side with the temporary arbitral tribunals created for political disputes. No doubt the permanent court, enlarging its knowledge with its experience, would in due time extend its influence and come to command such respect that even political disputes would be submitted to it. But this would be a matter for voluntary action on the part of the nations, and nothing would be lost in allowing them to take their own time in choosing which of the two systems seemed best fitted to their needs.

I hope I have made clear, therefore, the intimate connection between the international judicial organization and, on the one hand, the international legislature, whose duty it will be to define the law applicable to the case, and, on the other hand, the international executive arm which shall compel the parties to come before the court, and see to the execution of the award when rendered. We must bear in mind that the more international law is defined by the international legislature, the clearer its principles become, and the more certain a nation can be of exactly what are its legal rights and duties, the fewer disputes will arise between nations, and less often will there be a claim that a particular dispute involves the honor or vital interests of the nation at issue.

I have a few minutes more time than I thought, and I want to use them for an illustration which will make my meaning clearer. It seems

to me that about the best example that can be presented at the present day of an international dispute which involves the honor of a country — and is, therefore, not to be submitted to arbitration, as many claim — is the issue of the indebtedness of the United States to Colombia for the tract of land used for the Panama Canal. Many persons insist that we cannot arbitrate that dispute at present with Colombia, because if we did arbitrate it we should be confessing that we did a grievous international