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A PERMANENT TRIBUNAL OF INTERNATIONAL ARBITRA

TION: ITS NECESSITY AND VALUE

The average individual of these modern days views war with apprehension and alarm. To him it means loss, or risk, of life or limb, either for himself or for those dear to him, or loss of business opportunities and heavy taxes. The growth of socialistic and democratic doctrines has widely spread the historic truth that in the conflicts of the past, largely brought on by the selfish greed of the oligarchic few, the plain many, "the common herd," Napoleon's "food for powder, have had their sufferings for their pains. And the heads of the aggregations of men we call "sovereign states"-the oligarchic fewsoftened by the spread of the civilizing influence of an industrial age, themselves begin to look on war askance, and to plan ways of avoiding it.

THE HAGUE CONVENTION

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In the year 1898 the czar of all the Russias sent out his remarkable circular note suggesting a conference of the important nations of the world-those having representatives at his court to devise means to put an end to these increasing armaments and to find means for avoiding the calamities which menace the entire world. (U. S. Foreign Relations, 1898, pp. 540, 542.)

Certain cynics on international affairs broadly intimated that Russia, having her own problems of internal administration to contend with, needed about fifty years of freedom from external pressures of all kinds. After that, tribunals of arbitration would be relegated to the lumber room of exploded fads; and a foreign office backed by a disciplined army of many million men, would dictate the policy of Europe-nay, of the world.

However this may be, and there are always such suggestions in regard' to all apparently good conduct in this world, the nations responded to the call.

Thus the note, having met with a favorable reception, was followed by a later communication from the same source on December 30, 1898.

Seven themes were submitted for discussion at the international conference proposed to be held.

1. Non-increase of fighting forces.

2. Interdiction on the use of new arms or explosives.

3. Limitation of use on land of present explosives and prohibition of projectiles from balloons.

4.

Interdiction in naval warfare of rams and submarines.

5. The adaptation to naval warfare of the Geneva convention. Revision of the Brussels, 1874, declaration as to laws and customs

6.

of war.

7. The acceptance in principle of the usage of good offices, of mediation, and of optional arbitration for such cases as lend themselves to it, with a view of preventing armed conflicts between nations; an understanding upon the subject of their mode of application, and the establishment of a uniform code of practice.

THE HAGUE TRIBUNAL

From that historic conference sprang the Hague tribunal-the first permanent court of arbitration in the world's history.

The step so taken in advance has been a great one-but it is still in its experimental stage. Even as made, it falls far short of the necessary completeness such a step should have, to give it promise of properly fulfilling its function.

With the feature of voluntary, and not compulsory, arbitration embodied in the Hague convention we have no quarrel. As will be shown hereafter, too many human imperfections still hedge about our proposed international judiciary for any nation blindly to submit its future unknown interests and causes of quarrel to their hands for final disposition.

The Hague tribunal lacks two great elements of a permanent tribunal, in the absence of which it is practically emasculated. Until it is clothed with these attributes it is destined but imperfectly to fulfill its high office.

The Hague tribunal is not in the true sense a permanent court, it is permanent only in name. Its membership of judges is not confined to a few selected men who sit as a permanent court ready at all times to do its business and receiving a fixed salary during an appointment for life during good behavior-such as is the case with the supreme court of the United States and the high courts of other nations.

THE CONSTITUTION OF THE HAGUE TRIBUNAL

The international court at the Hague is an intermittent court sitting at intervals and having no true identity or continuity in its membership.

The signatory powers undertake to organize a permanent court of arbitration. (Art. VII, Moore's International Law Digest, vol. vii, §1086, 86.) It is accordingly provided that "an international bureau established at the Hague serve as record office for the court." (Art. XXII, id.) This bureau serves as the channel of communication between the powers, etc. (Id., 87.) Each signatory power selects "four persons, at the most, of known competency in questions of international law, of the highest moral reputation." These are "inscribed as members of the court." (Art. XXIII, id.) and are appointed for the term of six years * * * which may be renewed. Provision is made to fill vacancies. "When the signatory powers desire to have recourse to the permanent court of arbitration for the settlement of a difference that has arisen between them, the arbitrators called upon to form the competent tribunal to decide this difference, must be chosen from the general list of members of the court." (Art. XXIV, id., 87.) The powers having recourse to arbitration "sign a special act ('compromise') in which the subject of the difference is clearly defined as well. as the extent of the arbitrators' powers. (Art. XXXI, id., 89.) Failing an agreement on the arbitrators each party appoints two and these choose an umpire-if the vote for umpire is equal, his election is entrusted to a third sovereign power chosen by the sovereign powers submitting to arbitration. (Art. XXXII, id., 89.) The umpire is president of the tribunal. (Art. XXXIV, id.) The place of the arbitration is the Hague unless otherwise agreed on in case of necessity. (Art. XXXVI, id., 89.) There are provisions as to filling vacancies--the languages to be used, the steps in the procedure, the evidence and documents and oral arguments to be made, etc.

THE DEFECTS OF THE HAGUE TRIBUNAL

It will at once be noted that we have here not a permanent court in the true sense, but a list of referees from whom we may select judges as occasion offers. A clerk's office and a council to run it is all that is permanent or continuous in the organization. The judges are fluctuating to be selected from a list of fifty-possibly 104. These are taken from their usual vocations for a few months, in sporadic instances, to decide a certain dispute in their capacities as judges and then lapse back again into the private life and environment from which they came.

The court lacks two essentials of a proper permanent court of justice.

First. It lacks a limited number of judges to whom all its business should be referred, appointed for life during good behavior, and

Second. It lacks permanent salaries paid to those judges, without regard to the business or lack of business before the court and continuing during such appointment for life.

The first essential produces a logical continuity in the decisions of the court out of which would develop, under the operation of the principle of stare decisis, a system of international law as reasonably consistent and logical as is possible in human affairs, just as the case law growth in England has given us the "common law of England" the Hague would give us a common law of nations.

The second essential produces a wise, impartial and unbiased temper of mind in the judges-as far as such conditions can be obtained. Under such conditions the future judge is not imperiled by the nature or effect of his decisions.

The fundamental importance of a fixed tenure of office and of fixed salaries of judges in the organization of courts of municipal law in each country, whereby those courts have been made permanent in this true sense is universally recognized. How much more weight, therefore, should be given to these considerations in determining the proper organization of a court of international arbitration.

For if, in deciding the issues involved between their own nationals, in order to obtain unbiased decisions, it is necessary to remove the judges by a fixed tenure and fixed salary from all prejudicial influences arising from the fear of injurious effects of their own decisions upon their own lives and fortunes, how much more necessary it is to use these same means to ensure impartiality in the case of an international judiciary. For a judge in deciding a case against his own nationals is destined to be subjected to the criticism, condemnation and scorn of a nation, because he has failed in his decision to uphold their interests as his fellow nationals view them. And disagreeable and unpleasant as this criticism and condemnation would be under any circumstances, how potent must be its power to coerce the mind, when future life must be lived out among and by the grace of these very critics. In fact so obvious is the perturbing influence of these considerations that many claim that an international tribunal should never have among its members any nationals of the nations whose litigation is before the court.

It follows then that no further argument is needed than the mere presentation of the facts involved in the accepted theories and practice in the organization of our municipal courts, to establish the fundamental proposition; that the method of settling international disputes by international arbitration cannot have a fair, full and adequate trial until we have as well constituted our international courts as we have already constituted our municipal courts.

The crying necessity of the hour is for the friends of peace and contemners of war to unite on this proposition and to enforce it at all times and places. There should be a persistent and constant effort made for the establishment at the Hague of a permanent tribunal of international arbitration, namely, a fixed body of judges having fixed salaries and a fixed tenure of office preferably for life during good behavior.

It may be objected that on account of the number of nations and the desire of each to be represented, this would require an impracticable number of judges on the bench.

The objection has merit. The present system of selection from the four nominees of each nation might be a preferable system. The only advantage thus lost is the advantage of continuity of membership in the court leading to a perfect development of the law under the rule of stare decisis. But this advantage is not an absolutely essential one to maintain. It is of small importance as compared to fixity of salary and fixed tenure in office. We now have forty-seven supreme courts in the United States and it is marvelous to see how the great body of the law so expounded is in substantial accord. The greatest divergencies occur through statutory changes.

The fixed tenure, fixed salary and freedom from, and prohibition of, other employments, however, is the one main essential advantage which we would still retain. This advantage would conserve the best chances of obtaining from our international judiciary fair and unbiased decisions.

The objection may be raised that the judges so appointed would have practically nothing to do and would grow sleek, if not rusty, waiting for business. The objector overlooks the vast amount of private claims against foreign nations-chiefly against the Latin-American republics of South America-whose weary suitors are now and have been for decades seeking redress for substantial wrongs. It is a familiar

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