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who has enlisted in a foreign port for a particular term and comes to & port of this country ought to have the right to break his contract and desert in order to get higher wages here. Those who see nothing wrong in this suggestion, may be excused on the ground that class prejudice has beclouded the distinction between right and wrong in matters which concern their class interests. Discipline and loyalty are as important in the merchant marine as in the naval service. A man who promotes desertion in one is as dangerous as he who would promote it in the other. We cannot believe that in the end the Congress of free and united America will be influenced by these selfish arguments. We expect therefore that this convention, which represents the careful study of the best minds of the thirteen nations engaged in the conference, will be ratified by the American Senate.3
EVERETT P. WHEELER.
3 For a sketch of the history of the international regulation of ocean travel prior to the London Conference, the reader is referred to the author's address on the subject, delivered at the Sixth Annual Meeting of the American Society of International Law, April 25, 1912, Proceedings for that year, page 36.
THE ORIGIN OF THE HAGUE ARBITRAL COURTS
The purpose of this study is the narration in detail of the responsible suggestions and action that resulted in erecting the Permanent Court of Arbitration at The Hague and in bringing into the realm of “practical” statesmanship the Court of Arbitral Justice, designed as a genuine tribunal instead merely of a panel of judges. The origin of these courts, which, even as they exist, are the greatest achievements in the institutionalizing of international law, is important because in some degree it demonstrates the processes by which international law grows and it registers to some extent the state of its legislative development. Everybody knows that you cannot bring a code of international law into effect by the process of introducing a bill in any legislature, but beyond that there is no agreement or even any very clear conception as to the processes of securing international institutions. A study of the origins of the two Hague courts of general jurisdiction furnishes some clue to the existing processes, and is the more interesting because most “practical” people denied their possibility so long as the constituent conventions were not actually in existence. The origins of these two courts, in so far as they reveal a principle, point to the conclusion that the idealism of the world can be wrought into effective machinery when the trained publicist takes hold of it and works it into forms harmonizing with existent conditions.
In international affairs it is perhaps more true than elsewhere, that "you never can tell till you try.” The reason is obvious, and may be pointed out because of its bearing on the approaching success of plans for a real international judicial court. International public opinion is the most elusive of any kind of public opinion; in fact, the international public opinion which must in the future uphold international institutions does not now really exist at all. Literally, we do not see the woods for the trees, and publicists dealing with matters of the international order actually must grope their way through the trunks of national particularism to their goal of international institutions. Illustrations might be given ad libitum, but it is sufficient to mention that the Permanent Court was perhaps the least-expected result of the First Hague Conference and that the barely unsuccessful career of the Court of Arbitral Justice through the Second Hague Conference was a genuine surprise to most observers, while the blocking of its full realization came from quarters previously unsuspected. Because the origin of these courts indicated the truth that the world was ready for much better instruments for conducting its work than it hitherto possessed is a reason for its examination being worth while.
I. THE PERMANENT COURT OF ARBITRATION Assignment of credit for the existence of the Permanent Court of Arbitration at The Hague usually depends upon the national complexion of the person who seeks to place the honor. Americans say it was due to an American proposal; Britons, to a British proposal; and continental Europeans can usually find arguments to show that it had an origin among their publicists. To be sure, controversy has not been acute on the subject, but its existence at low tension suggests that a careful history of the origin of the court might throw light upon what may well be considered the normal development of international judicial machinery.
The Permanent Court came into existence not because of the proposal of any single state participating in the First Hague Conference, but because the world was ready for the idea. For all practical purposes, it may be said to have originated simultaneously in three quarters, and it is scarcely too much to say that Russia, Great Britain and the United States each saw its own proposal transcended in the resultant convention. None of them had in their suggestions been entirely successful in estimating the extent of the development for which the world was ready.
The idea of an international tribunal was, of course, not new, for it had been broached with increasing frequency during six hundred years, from the days of Pierre du Bois. But it was not until 1899 that there was convened a general conference capable of discussing the question with responsible authority. Besides the knowledge on the subject in the minds of the delegates, a volume of texts relating to the Conference program and prepared by Jonkheer van Daehne van Varick under the title of Actes et Documents relatifs au Programme de la Conférence de la Paix, was issued by the Dutch government. Another volume, W. E. Darby's International Tribunals, was placed in the hands of the delegates and the fifty or more projects in it made available to the responsible negotiators the ideas that had been fructifying. Curiously enough, the applicable chapters of James Lorimer from his Institutes of the Law of Nations—in many respects superior to other projects—were not referred to in either volume. But the omission was one of diligence rather than of importance, for after the Hague Conference was once seized of the proposal for an international court its experienced delegates were quite capable of going through to a conclusion without academic assistance. It does not appear that any projects played any important part in their decisions, except as is indicated below.
Credit for first realizing the possibility of developing international legal machinery through the First Hague Conference must be given to the United States, though it must not be overlooked that Frederick de Martens, who was responsible for the Russian program, had provided the following as a subject of its labors:
8. Acceptance, in principle, of the use of good offices, mediation and voluntary arbitration, in cases where they are available, with the purpose of preventing armed conflicts between nations; understanding in relation to their mode of application and establishment of a uniform practice in employing them.
This article in the program of December 30, 1898, may be considered as deducible from the closing sentences of the Czar's manifesto of August 24, 1898, in which it is said: It (the conference) would converge in one powerful focus the efforts of all the states which are sincerely seeking to make the great conception of universal peace triumph over the elements of trouble and discord. It would at the same time cement an agreement by a corporate consecration of the principles of equity and right, on which rest the security of states and the welfare of the peoples.
The writer does not know the origin of this article of the program, but it is not unlikely that M. de Martens' experiences as an arbitrator had to do with it.
Dr. David Jayne Hill, then an assistant secretary of state, was re
sponsible for the instructions of April 18, 1899, issued to the American delegates by Secretary Hay and in them occurs this passage:
The eighth article, which proposes the wider extension of good offices, mediation and arbitration, seems likely to open the most fruitful field for discussion and future action. “The prevention of armed conflicts by pacific means," to use the words of Count Muravev's circular of December 30, is a purpose well worthy of a great international convention, and its realization in an age of general enlightenment should not be impossible. The duty of sovereign states to promote international justice by all wise and effective means is only secondary to the fundamental necessity of preserving their own existence. Next in importance to their independence is the great fact of their interdependence. Nothing can secure for human government and for the authority of law which it represents so deep a respect and so firm a loyalty as the spectacle of sovereign and independent states, whose duty it is to prescribe the rules of justice and impose penalties upon the lawless, bowing with reverence before the august supremacy of those principles of right which give to law its eternal foundation.
The proposed Conference promises to offer an opportunity thus far unequaled in the history of the world for initiating a series of negotiations that may lead to important practical results. The long-continued and widespread interest among the people of the United States in the establishment of an international court, as evidenced in the historical résumé attached to these instructions as Annex A, gives assurance that the proposal of a definite plan of procedure by this Government for the accomplishment of this end would express the desires and aspirations of this nation. The delegates are, therefore, enjoined to propose, at an opportune moment, the plan for an international tribunal, hereunto attached as Annex B, and to use their influence in the Conference in the most effective manner possible to procure the adoption of its substance or of resolutions directed to the same purpose. It is believed that the disposition and aims of the United States in relation to the other sovereign Powers could not be expressed more truly or opportunely than by an effort of the delegates of this Government to concentrate the attention of the world upon a definite plan for the promotion of international justice.
Annex A referred to is an historical résumé of the part the United States had played in developing arbitration, ranging from the resolution of the Massachusetts Senate in 1832 up to the then recent publication of Moore's Digest of International Arbitrations. Reverting from governmental action to projects, the historical résumé mentions those of Bluntschli, Lorimer, David Dudley Field, Leone Levi, the Institute of International Law in 1874 and 1875, the Universal Peace Congress in