Shall America Support the New World Court?
THE task of the peacemakers assembled at Lausanne to draft a treaty with Turkey has been facilitated in many ways by the progress made in international organization since the last great peace with the Turk in 1878. The protection of religious minorities and the ‘freedom of the Straits’ are not new problems, and the failures of attempts to deal with them in the past have been due in some degree to the absence of any international tribunal for handling the difficulties bound to arise in connection with any solution. When the Treaty of Berlin wrested the Balkan territories from the Sultan, elaborate provisions were made for religious freedom; but ‘putting the Turk out of Europe’ soon came to mean for more than one religious group the substitution of one oppressor for another. Similarly, through recurring crises the problem of the Straits has remained ‘a knot which for many long years men and nations have endeavored to untie by all the arts of diplomacy, all the devices of political combinations, and all the violence of wars.’ With a competent agency to assist in applying the legislation effected, new provisions for protecting the Christians and a new scheme for ‘freedom of the Straits’ may have better prospect of success.
No such body was available when the ill-fated Treaty of Sèvres was signed on August 10, 1920, and it was then impossible to do more than make very general provision for meeting future difficulties. But the ‘public law and system of Europe,’ in the ‘advantages’ of which the Sublime Porte was admitted to ‘participate with such gusto in 1856, have at last begun to be ordered and organized as a part of the public law and political system of the world; and, in spite of the disillusioning record of failures, other peoples, if not the Turk himself, may hope for some of the promised ‘advantages’ in connection with the forthcoming settlement. Fortunately, the Conference of Lausanne has at hand the Permanent Court of International Justice, the mere fact of whose existence can hardly fail to influence the drafting of the new treaty.
The Struggle for a Court
The Hague Conference of 1899 succeeded in establishing the Permanent Court of Arbitration; but though it has been successfully used in eighteen cases this is in reality a panel and not a court. As Mr. Choate pointed out in 1907, the Permanent Court of Arbitration is ‘a court only in name — a framework for the selection of referees for each particular case.’ A determined effort was made at the second Hague Conference in 1907 to establish an additional Court of Arbitral Justice. Secretary Root had instructed the American delegates to endeavor ‘to bring about a development of the Hague tribunal into a permanent tribunal composed of judges who are judicial officers and nothing else, who are paid adequate salaries, who have no other occupation, and who will devote their entire time to the tidal and decision of international causes by judicial methods and under a sense of judicial responsibility.’ The American delegates had the coöperation of the British and German delegates, but the Conference could not agree on any plan for selecting the judges. A scheme for a new court was drawn up, however, and Secretary Knox later sought to have it adopted; but no final results had been achieved when in 1914 the outbreak of the war necessitated a new beginning.
At the end of the war the pressure for peace did not admit of taking the time necessary for constructing a new scheme for a court. So the Covenant of the League of Nations contains only a provision that the Council shall formulate plans and submit them to the members of the League for adoption. The Council at once invited a number of distinguished jurists to draft a plan. On December 13, 1920, the project drawn up by this Committee of Jurists was unanimously approved, with modifications, by representatives of fortyeight states sitting in the Assembly. A special treaty was drafted, a ‘protocol of signature’; the plan for the court was annexed to it as a ‘statute’; and the protocol was opened to the signatures of all members of the League and of all states (including the United States) named in the annex to the Covenant as possible ‘original members of the League.’ This protocol is an independent treaty, wholly distinct from the Covenant of the League; and as such it has now been signed by fortysix states, of which thirty-five have completed their formal ratifications.
Election of the Judges
The Committee of Jurists fortunately succeeded in getting over the stumblingblock of 1907 with reference to the election of the judges, by adopting a suggestion which was made by Mr. Root. Every proposal of a scheme for electing the judges in the past had led to a contest between the states which insisted upon the recognition of their own hegemony as Great Powers, and the more numerous states which insisted upon the principle of equality of states.
When the Committee of Jurists met in 1920, two bodies were at hand, the constitution of which is based upon a successful compromise between state equality and the predominance of the Great Powers. In the Assembly of the League of Nations, each of the small states represented has one vote; in the Council the four permanent members are ‘Principal Powers’ and the six nonpermanent members may also include some of the Great Pow ers. So Mr. Root proposed and the Committee of Jurists agreed that these bodies be utilized as a machinery for electing the judges. The two electoral houses are to act independently, and a majority vote in each is necessary for an election. The existence of the Assembly and the Council thus made possible the adoption of a plan for choosing the judges which has proved acceptable to great and small powers alike.
The voting in the Assembly and the Council is restricted in the first instance to a list of persons nominated by the various national groups composing the Permanent Court of Arbitration. Each of these groups may nominate four persons, not more than two of them to be of the group’s own nationality. The electors are then directed to bear in mind that the whole Court should ‘represent the main forms of civilization and the principal legal systems of the world.’ At the first election, in September 1921, the list of nominees included eighty-nine names. As eleven judges and four deputy judges were elected, several ballots were required; but the complicated machinery worked.
Organization of the Court
Of the first members of the Permanent Court of International Justice, two are from North America, one from South America, two from Asia, and ten from Europe. All of them have had wide experience as lawyers; eight have been professors of law, and seven are members of the Permanent Court of Arbitration.
Among the most eminent of the judges are Viscount Finlay, formerly the Lord Chancellor of England, and our own Professor John Bassett Moore, whose Digest of International Law is perhaps more widely used to-day than any other publication in the field of international law.
The President of the Court, Judge Locler, was formerly a Judge of the Supreme Court of Holland; the VicePresident, Judge Weiss, is an eminent French authority on the law of continental Europe.
Judge de Bustamante, of Cuba, and Judge Barbosa, of Brazil, have long been widely known throughout the Americas.
The first session of the new Court, which began on January 30, 1922, was devoted to completing its organization. A number of formal matters had to be decided, such as whether the judges should wear wigs and robes, and what precedence should be given to judges at state functions.
Sessions of the Court are to be held at least once a year, on June 15, whether there are any cases on its docket or not. The fact that such annual sessions are scheduled should have an important influence in the chancellories of the world; just as the early meetings of the Supreme Court of the United States were important events in the life of the young Republic, though no contested case was heard until its sixth meeting.
Cases before the Court
In the present state of international politics it seems most improbable that the new Court will be permitted to be idle. Its rules of court were hardly published before three matters arose for its attention. On May 12, 1922, the Council of the League requested that the Court give advisory opinions on two questions: —
(1) Was the workers’ delegate for The Netherlands at the third session of the International Labor Conference nominated in accordance with the provisions of paragraph 3 of Article 389 of the Treaty of Versailles?
(2) Does the competence of the International Labor Organization extend to international regulation of the conditions of labor of persons employed in agriculture?
The consideration of these questions was begun when the Court met on June 15,1922, for its first regular session; and before the session was adjourned the Council asked for an advisory opinion on a third question: —
(3) Does examination of proposals for the organization and development of methods of agricultural production, and of other questions of a like character, fall within the competence of the International Labor Organization?
In putting the first question, the Council had acted at the request of the International Labor Conference itself; in putting the second and third questions, the Council acted at the request of the French Government. All three of the questions arose out of controversies with reference to the use of the machinery for international labor legislation set up by the treaties of peace; and their sterilized form gives scant indication of the contests from which they issue.
Without analyzing the affirmative answers given to the first two questions and the negative answer given to the third, it may be said that the opinions handed down by the Court in July and August have set at rest heated controversies which had menaced the whole future of international cooperation with respect to labor legislation. It is true that the opinion on the second question, as to which a determined contest had been waged between divergent groups in France, was not received without unfortunate recrimination in Le Temps; and the most powerful trade-union in Holland was greatly disappointed by the opinion on the first question. But it now seems improbable that any of the three questions will occasion further difficulty, and the coöperation of the fifty-four members of the International Labor Organization may continue in harmony.
The Court may soon have an opportunity to exercise a different kind of jurisdiction. Instead of giving opinions which are, in form, advice to the Council, it may be called upon finally to decide a dispute between contesting states. Great Britain and France now have a controversy over the nationality laws of Tunis and Morocco. It is claimed by the British that France has violated certain treaty obligations in compelling British subjects in Tunis and Morocco to do military service as French citizens. After unsuccessful attempts to secure a reference to arbitration, the matter was laid before the Council of the League; and on October 4, 1922, the Council requested the Court to give an opinion ‘whether the dispute is or is not by international law solely a matter of domestic jurisdiction,’ the parties having agreed that, if the Court decides that the matter is not solely of domestic jurisdiction, the whole dispute will be referred to arbitration or to judicial settlement. The jurisdiction of the Court may also be invoked in a dispute between the Allied Powers and Germany, which the Conference of Ambassadors is reported to have decided to have referred to the Court; this involves the question whether under existing treaty law the Kiel Canal must be kept open to the passage of warships of all nations.
A world court is thus in being! The prophecy of the American delegation to the second Hague Conference— ‘a little time, a little patience, and the great work is accomplished’ — is at last fulfilled. But the fulfillment comes only after the world has paid a price for the delay!
Extent of the Court’s Jurisdiction
The new Court is not, as one critic has said, the private court of the League of Nations. Its use has never been restricted to members of the League. By a decision of the Council of the League, taken on May 17, 1922, as authorized by a provision in the statute of the Court, it has been opened to all the world, so that any state may now appear before it as a party. Hungary appeared before the Court even before her admission to membership in the League.
In most cases each party to a dispute must consent before the Court can deal with the dispute. The Great Powers particularly were unwilling to dispense with the special consent to be given in each case. And the United States had taken the same position at both of the Hague Conferences. But an optional clause in the treaty establishing the Court has now been ratified by fourteen states, giving the Court jurisdiction of every dispute between these states in which is involved any question of international law, of the interpretation of a treaty, or of a breach of an international obligation. In addition to this, the Court has a large amount of ‘compulsory jurisdiction’ which has been conferred upon it by other treaties. The treaties for the protection of minorities between the Allied Powers and Poland, Czechoslovakia, Rumania, Jugoslavia, and Greece conferred an extensive jurisdiction on the Court, to be exercised without the necessity of consent at the time. Similarly the minority provisions of the treaty of peace with Austria, Bulgaria, and Hungary are to be interpreted by the Court. The sixteen labor conventions adopted by the recent International Labor Conferences, the Aerial Navigation Convention, the Mandates recently drawn up, and the Barcelona Conventions on International Waterways and Freedom of Transit, arc to be interpreted by the Court as disputes arise. The treaty ol October 10, 1922, between Great Britain and Iraq contains a similar provision. On the whole, therefore, the Court may act in a great many cases without a special agreement to give it jurisdiction.
Law To Be Applied
When its jurisdiction in a case is established, the Court must find the law to be applied in reaching a decision. The statute of the Court directs that it apply international conventions, international custom as evidence of a general practice accepted by law, judicial decisions, the teachings of the most highly qualified publicists, and the general principles of law recognized by civilized nations. As if for good measure, the power to decide ex wqno ei bono, if the parties agree, is expressly added. This has been thought to mean that the Court has power to arbitrate in addition to its power to adjudicate, with reference to a dispute before it; but the language probably involves no more than a recognition of the propriety of considering what is ‘ reasonable,’ or what is ‘just and good,’ in cases where the established law is clearly inadequate. For it would seem a mistake to contrast too sharply the processes of arbitration and adjudication. Arbitrations have long proceeded along juridical lines. The recent arbitration agreement between the United States and Norw ay was not exceptional in providing that the arbitral tribunal should decide ‘in accordance with the principles of law and equity.’ Whether a court is arbitrating or adjudicating, it will endeavor to find the law that is applicable. Yet the case seldom arises in which that law can be found fullblown and ready-made. An effort to balance competing interests must always be made, and that is a juridical process when followed by either an arbitral or a judicial tribunal. The law to be applied by any court is not, to use a phrase of Mr. Justice Holmes, ‘a brooding omnipresence in the sky.’
It is not to be concluded, however, that the new Permanent Court of International Justice is merely a duplication of the old Permanent Court of Arbitration. Both mwv exist, and there is no intention that the former should entirely supersede the latter. The panel of 129 persons composing the Permanent Court of Arbitration is still needed for cases in which disputant states will desire to arbitrate before judges chosen ad hoc. Such a desire may be entertained, because some of the judges of the new Court may be persona non grata to a particular state, or more probably because the new Court is thought to be too busy or too large to handle a particular case. The Permanent Court of Arbitration is needed, also, for the nomination of the list of candidates from which the judges of the new Court may be chosen. But the Permanent Court of International Justice constitutes a signal advance over what it was possible to achieve at The Hague in 1899. It is in reality ‘permanent’; it is in reality a ‘court’; and with judges elected for terms of nine years it should come to have in time a continuous line of decisions and a consistent body of jurisprudence which may furnish a sound basis for the renovation of international law.
Sanctions for the Court’s Decisions
Once a decision has been given, how is it to he enforced? What ‘sanctions’ are behind it? The statute of the Court is silent on this point, and the Court’s situation is not unlike that of the United States Supreme Court in this respect. But for the fifty-two members of the League of Nations, a special obligation does exist. For they have agreed in Article XIII of the Covenant to ‘carry out in full good faith any award that may be rendered’ and not to ‘resort to war against a member of the League which complies therewith,’ leaving it to the Council to ‘propose what steps should be taken to give effect ’ to an award which is not complied with; and Article XVI prescribes certain consequences if any member resorts to war in disregard of this undertaking. These provisions are generally taken to apply to decisions of the Court, though they do not apply in any way to states not members of the League. But the principal ‘sanctions’ for the Court’s decisions, for all states, must be derived from the moral strength of the Court, and the moral force of the world’s opinion behind it.
It is important, therefore, both by reason of the voluntary nature of its jurisdiction and by reason of the moral nature of its authority, that the Court shall have a united world supporting it. Successful functioning for a few years will give it great prestige, and the determination of a few important cases like that involving the nationality laws of Tunis and Morocco will dramatize its serviceability. But every possible encouragement is needed, first for resort to the Court by disputant states, and then for compliance with its decisions. On the machinery of justice, at any rate, it would seem that the world should be able to unite.
The Rôle of the United States
What, then, is the rôle of the United States in this achievement? Is our position with the fifty-two states that are making it a success, or with Abyssinia, Ecuador, Germany, Mexico, Russia, and Turkey that stand outside of it. Apart from Mr. Root’s and Dr. Scott’s contributions to the work of the Committee of Jurists and Judge Moore’s acceptance of a seat on the Court itself, the United States has taken no part in establishing the new Court. Our Government has yielded the position of leadership in the movement which it held under the presidencies of McKinley, Roosevelt, Taft, and Wilson. But that water is over the dam. With the organization of the Court completed, the question now is, what part shall America play in supporting and maintaining it?
At the present time, our situation is this: the Lnited States may have access to the Court on terms of equality with any other state. We may refer to it a dispute in which we are involved, if the other party consents; or we may consent when the other party seeks to refer it. We therefore reap the benefit of having a ready tribunal for our own as well as for other nations’ disputes. Yet we pay no part of the Court’s expenses. The rent of its headquarters in the Peace Palace at The Hague, even the salary of Judge Moore, is paid entirely by the League of Nations. We have a voice in the preliminary stage of the election of the judges. In the nomination of the persons whose names are to be on the list from which the Assembly and the Council elect, the American group in the Permanent Court of Arbitration has the same privilege as other national groups; though in 1921, Messrs. Gray, Moore, Root, and Straus, who form the American group, declined to accept the invitation to nominate. But in the final stage of the election, in the voting in the Assembly and the Council, America has no voice, since we are not represented in either body.
How would this situation be changed, if the United States subscribed to the treaty establishing the Court? The conditions under which we might invoke the Court’s jurisdiction would probably remain the same; for it seems unlikely that we should adopt the optional clause agreeing that the Court might take compulsory jurisdiction, without special agreement, over any dispute which may arise with a state which also adopts the optional clause. The United States has never shown a willingness to go so far. The situation with reference to the Court’s expenses would certainly be changed, for, though the treaty would not obligate us to pay any part of the Court’s expenses, we should doubtless insist on a separate agreement fixing our quota and determining how it should be paid. Greater participation in the election of the judges would not follow unless it were expressly stipulated for. So that the formal act of accepting the treaty would not greatly change the present situation, except in enabling America to bear her share of the burden of maintaining the Court, and to use her influence to increase its strength and prestige.
Why, then, do we withhold our action? It is not because of any opposition to the idea, even in the days of strictest isolation. The major political parties have repeatedly voiced their acceptance of the idea. In 1916 the Republican national platform was very downright in stating: ‘We believe in the pacific settlement of international disputes and favor the establishment of a world court for that purpose.’ And Senator Lodge has been recently reelected on a platform in which the Republicans of Massachusetts declare: ‘We stand for a Permanent Court of International Justice.’ Nor is it because of any dissatisfaction in America with the scheme adopted; the comment has been all but unanimously favorable. And the selection of Judge Moore to sit on the Court has been greeted with approval by lawyers and laymen throughout the country.
Conditions of American Support
American action is delayed only by the conditions stated by the Secretary of State on July 13, 1922. After calling attention to the fact that the United States now has no part in the voting in the election of the judges, Secretary Hughes declared that he saw ‘no prospect for any treaty or convention by which we should share in the maintenance of the Court until some provision is made by which, without membership in the League, this Government will be able to have an appropriate voice in the election of the judges.’ It is clear that acceptance of the Court statute does not in any way involve membership in the League. The Court is a quite independent part of the League machinery, set up by a treaty wholly distinct from the League Covenant. The United States can become a signatory to this treaty without assuming any of the obligations of League membership, and without any commitment to cooperation with the League machinery as it functions under the Covenant. However, Secretary Hughes’s condition that the United States must have a voice, not simply in nominating judges as at present, but also in the final voting, must be met. Since the voting is entrusted to two League bodies, the Assembly and the Council, arrangement must be made for American participation when they act, not under provisions of the Covenant, but as electoral bodies named in the separate, distinct treaty setting up the Court.
How can this arrangement be made? It is unthinkable that the electoral functions should be taken from the Assembly and the Council, for that would mean a return to the deadlock of 1907. The sleeping dogs of slate equality and Great Power hegemony must be allowed to lie. The statute could, however, be amended to provide that states in the situation of the United States may participate in the electoral bodies. But no method of amendment is provided by the statute itself, and no power to amend it has been conferred on the Assembly or the Council. So that the thirty-five states which have ratified, if not the forty-six states which have signed, the treaty to which the Court statute is annexed, would have to act. In many of these states, parliamentary collaboration would be necessary. This is not only difficult and dilatory but might also open up issues now set at rest. If possible, this course should be avoided.
If the United States should sign and ratify the separate treaty establishing the Court, with a reservation that the United States shall enjoy all the privileges enjoyed by any other state, and particularly the privilege of voting in the Assembly and the Council when those bodies act as the electoral bodies empowered by the statute of the Court to make the final choice of the judges, it would seem probable that all other states would readily acquiesce, and as a result of such acquiescence the American conditions would be fully satisfied. We should not attempt to ignore the existence of such bodies as the Assembly and the Council, which has made it possible to have the Court; but we should limit our contact with them to the one function of electing the judges, in which they act wholly apart from their other activities. For good measure, it could be spelled out that the United States becomes in no way bound by, or a party to, any article of the Covenant of the League of Nations.
The conditions set by Secretary Hughes are not difficult to meet, therefore, if there be the will to meet them. And it is gratifying to have his statement, on October 60, 1022, that he thinks ‘suitable arrangements can be made for the participation by this Government in the election of judges of the International Court which has been set up, so that this Government may give its formal support to that Court as an independent tribunal of international justice.’ It is most important that such arrangements should be completed while the Court is in its infancy, and while American support may have its full influence.
International justice is not to be achieved in any generation for all time to come; for it involves a continuous process which can never be accomplished with a single stroke. But one does not need to indulge any illusions as to the importance of courts in the political life of the world to think that machinery is necessary and must be at hand. With the Permanent Court of Arbitration and the Permanent Court of International Justice, both established and functioning, justice according to law has come within the nations’ reach. But machinery alone will not suffice. Behind it must be a faith in the peaceful processes it is created to serve, and a will that it shall succeed