A World Court By HON. JOHN HAYS HAMMOND Washington, D. C. HE possibility of a world war of the magnitude of that just fought was, prior to August, 1914, regarded by the great minds of the world as preposterous. There existed always, it is true, the possibility of a war between two or three of the great European powers, but that the entire world-with the exception of a few of the smaller nations-should have dedicated its genius to the ruthless destruction of life and property is, indeed, an anomaly of our twentieth century's vaunted civilization. The great outstanding lesson of the World War is that war itself is an insensate waste of human life and of the fruits of human industry. We have seen that in a war of this magnitude, the victor suffers with the vanquished; that the damage to both victor and vanquished is irreparable, and that, from all points of view, the arbitraments of arms is an egregious folly. For this reason, when the war was ended-indeed, anticipating its conclusion-representative men of all nations recognized the necessity of providing some means other than war to settle international controversies. This was the origin of the League of Nations created at the Paris peace conference. But many statesmen, in this country especially, considered the League of Nations as not only not a guaranty of world peace, but as actually conducive to future wars. However this may be, there was an honest difference of opinion as to the practicability of the proposed League of Nations. The mandate of the American people, as expressed in our recent national election, was unqualifiedly against participation by our government, not only in the proposed League of Nations, but against the recognition of any super-government, or of any league which involves, even in a remote degree, the derogation of our national sovereignty. This may now be regarded as a political maxim of our governmental policy in its foreign relations. as our At the same time, it is the consensus of our statesmen, and men of affairs, that some kind of an association of nations is essential to preserve the peace of the world. They recognize that if we are to maintain our international rights and to promote our interests abroad, we must be prepared to accept certain responsibilities as a great world power, and can not assume an attitude of aloofness. While affirming that abstention from entangling alliances will be the policy of our government, it nevertheless desires to lend its moral influence towards effecting the economic rehabilitation of Europe, in which we, as a nation, are vitally concerned; and also in the settlement of other questions requiring concerted consideration and deliberation. The attitude of our government to be represented in the official deliberations of the Allies in pursuance of this policy is to be commended. Those of us who were identified with the World Court League of America, having for its object the creation of an international tribunal at the termina tion of hostilities, are still of the opinion that such a tribunal, the prototype of which we have in the Supreme Court of the United States, would logically serve as the focus of an association of nations. To such a court all justiciable questions could be submitted. To deal with non-justiciable questions-and many controversies in this category are provocative of war-there should be a council of conciliation. Through these agencies a world court and a council of conciliation-a body of international law would in time be developed, which would result in the elimination of many disputes from the necessity of diplomatic intervention. No one believes that this or any other plan would render war impossible, but would, at least, greatly minimize the liability of war. Whether the court should have compulsory jurisdiction and whether the council of conciliation should be invested with sanction is, many of us believe, a matter for subsequent international agreement. Without these functions, the court and the council of conciliation would admittedly "lack the teeth," which some regard as indispensable to success of this program. Inasmuch as this procedure follows the line of easy accomplishment, it would seem wise to take this as the first step toward the achievement of a more ambitious project, which, because of its complexity and inherent objectionable features, would be beset by almost insuperable objects at its inception. The plan suggested is free from the objection urged against the enforcement of peace by military power. Its efficacy would depend, until the nations themselves in the future agree to the application of coercive intervention, upon the pressure of public opinion to compel the observance of international obligations. One of the great burdens which the present generation has had to bear is the economic waste involved in "armed peace," and yet disarmament on our part in the present state of international relations, unless other great powers disarm at the same time, would be the height of folly, if not a criminal blunder. Today, in spite of the fact that many of the great nations of the world are on the verge of bankruptcy, there is an uninterrupted increase of naval armaments. England has added greatly to her navy since the Armistice, and so have the United States and Japan. It is undeniably an insensate waste of the capital so greatly needed to rehabilitate industry. These armaments are alleged to be for purposes of defense. A halt should be called on this reckless expenditure of the life blood of industry and commerce, indispensable to the welfare of civilization. Disarmament can be effected by a straightforward, unequivocal message a message not couched in vague diplomatic language-from our government to England and Japan, to the effect that the United States has no ambition to attain the supremacy of the seas, but that she is nevertheless determined not to accept a subordinate naval position; that in this our policy is inflexible. We should emphasize our inflexibility of purpose, because a vacillating policy on our part would encourage rather than discourage competitive armaments both by England and Japan. When those nations fully realize the futility of competing with us to gain naval superiority, they will gladly and quickly agree to the limitations of naval armaments and not before. As the first step in naval disarmament, there should be an immediate cessation in the building of capital ships, and all naval expenditures should be strictly limited to the needs of coast defense. Aim and Purpose of an International Court of Justice THE By HON. JAMES BROWN SCOTT Juristic Advisor of the American Commission at the Paris Peace Conference HE aim and purpose of an international court of justice is to decide disputes of a justiciable nature -that is to say, disputes which can be submitted to a court and be determined by principles of justice expressed in rules of law, which may and must of necessity arise between and among nations. To enable the court to act and to bring forth the fruits of justice, an agreement of the nations is required that such disputes shall at their beginning and before they assume political importance be automatically submitted to the tribunal, the constitution of which is known in advance, to the end that the judges ready to receive the dispute and to hear arguments, may decide the controversy by the application of generally recognized and accepted rules of law. In this way, the chancelleries of the world are relieved of a cause of friction too often a source of irritation and a thorn in the flesh plucked, as it were, from the side of the nations. The function, then, as I take it, of an international court of justice is not primarily to make but to declare and administer law in such disputes and controversies as the nations may in their wisdom or in enlightened self-interest bind themselves to submit, either by special or general agreement, to a determination of this agency of justice. A PERMANENT TRIBUNAL It looks as if we are about to have a permanent tribunal of this nature. The project is not new; it is old, like most good things. But it seems to be new because it has achieved a greater prominence than formerly and it is today uppermost in the minds of all thoughtful men and women. In 1907, at the Second Hague Peace Conference, a draft convention, dealing with the composition, the jurisdiction and the procedure of an international court of justice, was agreed upon by the forty-four nations meeting in conference at The Hague. It was found impossible, however, owing to the conflict of interests, the difference of views, and also to the limited time at the disposal of the conference, to hit upon a method of appointing the judges which would be acceptable to all the nations there represented. Unable to find a method ready at hand, or to devise one during the storm and stress of the conference, a resolution or a recommendation was adopted, approving the draft convention for the court of international justice, called the Permanent Court of Arbitral Justice, to be submitted to the nations, requesting them at the same time to attempt to devise a method of appointing the judges through diplomatic channels which would be acceptable to the nations, without specifying any number, but leaving it open to those minded to accept such a tribunal to coöperate in its constitution. So matters rested at the end of this world conference. During the ensuing seven years there were meetings of delegates from different countries. In 1910 an agreement was reached between Germany, France, Great Britain and the United States to constitute a court by the method adopted for the appointment of judges of the Prize Court when that tribunal should be organized. This would postpone the court of arbitral justice to the prize court, which it was found difficult to create because Great Britain was unwilling to establish or to coöperate in its establishment unless there were an agreement had in advance upon the principles of justice and the rules of law to be applied in the decision of cases which might be referred to it. A serious attempt was made to reach an agreement upon the law to be applied, and at the request of Great Britain representatives of the ten leading maritime powers met at London on the second of December, 1908, and agreed upon the so-called Declaration of London, which seemed to the delegates of these countries to state the law to be applied in an acceptable form. How ever, public opinion in England declared itself against the Declaration to such a degree that Great Britain did not take steps to approve it. The prize court could not be established, and the court of arbitral justice, dependent upon it, shared its fate. It was, therefore, deemed advisable to attempt to set up the court of arbitral justice independently, and the Minister of Foreign Affairs of The Netherlands accepted a proposition and agreed to transmit it to nine of the then leading powers, according to which these powers would constitute it for themselves. The problem was here a very simple one, because in a court of limited numbers each could appoint a judge, and, as nine nations were to be invited, the court would consist of nine judges. Such a tribunal would be international but of limited usefulness. Therefore, it was provided that the court should be open to all nations, upon a footing of equality, which should care to use it, in that each nation not represented upon the bench was authorized to appoint a judge to take part in the trial and the disposition of a case to which it was a party. This method was calculated to secure the court and to try it out on a small scale. It was, therefore, practicable. Theoretically, it was open to criticism, and would be very faulty in a municipal court in which the parties in litigation have no right to choose their judges or indeed to enter into any relations with them. It was not so faulty, however, from the from the international standpoint, although it is objectionable in theory that representatives of nations should take part in the decision of a controversy affecting their countries, inasmuch as they may be prejudiced, and are, as a matter of course, prejudiced in behalf of their own state. It must be said, however, in its behalf that, if the number of judges is large, so large indeed that the representatives of the parties in litigation form a small minority of the court, it is, if not in accord with theory, nevertheless practicable. Indeed, it has compensating advantages, because the presence of enlightened judges of the countries in litigation upon the bench is a guarantee that the systems of law and procedure obtaining in their countries are laid before their colleagues, with the result that the court is an understanding court and, therefore, likely to be an acceptable and an efficient court. INTERNATIONAL JUSTICE The war came on and the steps were not taken. However, in Article 14 of the Covenant of the League of Nations there is a provision that the Council of the League should draft a project for the establishment of an international court of justice, to be submitted to the members of the League for their approval. In order to aid the Council in their task, some twelve jurists of various countries were requested to act as an advisory committee. Of the ten who accepted the invitation, five came from the large, five from the smaller powers. They met in conference at The Hague during the months of June and July of 1920, and, as the result of much discussion and in a spirit of conciliation, a project for an international court of justice was agreed upon. It was submitted to the Council and with certain changes approved, and by that body transmitted to the first Assembly of the League of Nations which met in Geneva in November, 1920. With some considerable modifications by that body, which changed, I believe, the nature of the tribunal from that of a court of international justice, or a court of justice in the strict sense of the word, to a tribunal of arbitration with a permanent panel of judges, it was adopted by the Assembly and recommended to the nations of the world. It is perhaps more accurate to say that it was recommended in first instance to the members of the League of Nations for ratification. But, in effect, it was a recommendation to all nations, inasmuch as the project provides that members of the society of nations which are not members of the League are to have the privilege of presenting their disputes to the court upon a basis of equality and to have them decided upon what we may call due process of law. The draft prepared by the advisory committee of jurists, of which Mr. Elihu Root-a name never to be mentioned without respect and indeed without a sense of gratitude was the American member, provided for what may be called obligatory jurisdiction. Let me recall, before taking up this phase of the subject, the problem which confronted the jurists. In 1907 it was found impossible, as I have already stated, to agree upon a method of appointing the judges which would be acceptable to the nations at large, which were, however, urged to discuss the matter through diplomatic channels and to agree upon a method which the Conference was not able to suggest. The result was in fact, although not in theory, that the Advisory Committee practically took the draft convention of 1907 for the creation of a court of arbitral justice, supplied a method of appointing the judges and added to the draft certain provisions which seemed to the members of the Committee necessary in order to convert it from a court of arbitral justice into a court of justice in the strict and technical sense of the word. What is this difference? Merely this: In the language of the Pacific Settlement Convention of the First Hague Conference of 1899 and of the second body of that name of 1907, arbitration is the settlement of controversies between nations by judges of their own choice. In choosing the judges and agreeing to submit the controversy to arbitration, the countries very often agree upon the facts or the questions to be submitted and at the same time reach an agreement upon the principles of law to be applied, if in their opinion such principles do not exist. A court, on the other hand, presupposes the existence of rules of law which the judges are to declare and to apply, not to create, although they do develop law. TRIBUNAL OF ARBITRATION The project as originally drafted by the Advisory Committee provided that there should be a permanent personnel of judges in existence, ready to take up the question at issue and to decide it according to the principles of law. Therefore, the judges and the law exist in advance of the dispute. A tribunal of arbitration, on the other hand, is a possibility. It is not a fact. It is created by the parties in dispute and usually in the storm and stress of controversy, when they are least able to agree upon the selection of judges. As a court is a body of known determina |