SOME SUGGESTIONS AS TO THE PERMANENT COURT OF ARBITRATION

Through the Hague convention of 1899, for the first time by a general treaty, nations in effect agreed that under certain circumstances, at least, they were morally bound, as were ordinary corporations or mere private individuals, to submit the merits of their disputes to impartial examination. The old doctrine that the king, as the representative of Deity, could do no wrong and the newer fiction that national governments were sovereign-beyond the ordinary gauges of right and wrong—and were their own courts of last resort upon the rightfulness of their actions toward other governments, subject only to the arbitrament of war, were measurably impaired, the signatory nations admitting fallibility and agreeing that, composed as they were of an aggregate of individuals, like their component parts they might err, and that the question as to whether they had erred or not could fairly be determined by other human beings, perhaps no wiser, but certainly more impartial than themselves.

It was not to be expected that this court, created for the first time by general action and against the more than silent protest of at least one of the contributing nations, should be perfect, either as to its jurisdiction or as to its composition. It is the history of all governmental institutions that as they "find themselves," their functions grow in extent and logical completeness. Always in this, as in other matters, it is "le premier pas qui coûte." The important first step having been taken, however, we may expect the future will afford an adequate solution of the jurisdictional questions timidly and inadequately suggested by the convention of 1899. It is the province of the present article not to deal with questions of jurisdiction, but to discuss certain matters of formation and procedure, which properly studied will most certainly tend to insure the impartiality and high standard of the court, and, in so doing, assure its usefulness, ultimately adding to its functions and renown.

The convention of 1899 provided that the constituent nations should each have the right to select four members of this court at the most, to serve for six years, with power of renewal, and that when the services of the court were sought, each party should, in the absence of other special agreement, appoint two arbitrators, these together to choose an umpire, or, in case of equal voting, the choice of the umpire to be entrusted to a third power, selected by agreement between the contestants, while the differing nations were to pay their own expenses and an equal share of those of the tribunal.

In the first case brought before the court-that of the Pious Fundthe United States selected two arbitrators and Mexico a like number, the four determining upon the umpire; in the second-that of the Japanese House Tax-the two sides selected each an arbitrator and they together asked the king of Sweden and Norway to name an umpire; in the third-that of the Venezuelan Preferential Questionthe emperor of Russia was asked to name the three arbitrators; and in the fourth-that of the Mascate Dispute the several parties named an arbitrator and the two chose the umpire, and had they failed to agree within a month from the date of their appointment the king of Italy was authorized to name him.

In opening our examination, let us consider first the method of appointment of the whole banc of judges, their proper personnel, and compensation.

If the general complexion of the Hague court is to be criticised, it would be because its members are too largely under the control, and too likely to represent the official views of the appointing government. In very many instances, it has named upon the court one or more of its own officials, often its regular legal or diplomatic advisers, their relations to their constituent governments remaining unchanged. It is to be remarked that these gentlemen, illustrious as they are and unbiased as they would wish to be, are in danger of being under unconscious restraint or prepossession. It would seem quite enough, although unavoidable, that judges of this eminent court, by their education and surroundings, should be predisposed in favor of autocratic, monarchic or republican forms of government and imbued with their respective traditions. Indefinitely and unavoidably are the difficulties of their position increased when they remain a part of the governing body of their respective countries, their views colored by official sta

tion or employment and their minds obsessed by controlling governmental ideas of national polity and expediency.

To illustrate the situation, we may readily believe a South American republic would more willingly accept, as well-founded and just, conclusions reached by a German of acknowledged capacity, free from official entanglement, than it would accept the judgment even of the same man dominated by the ideas, temporary or permanent, of his own government relative to theories of international law or of national advantage. In saying this, we have to bear in mind that even American secretaries of state have from time to time, impelled by overpowering political considerations, departed in their pronouncements from the teachings of international law, and we may recognize the fact that representatives of other nations may likewise err.

And this consideration applies, at least so far as continental Europe is concerned, to judges of its courts, for we will not forget that in European countries, as a rule, there is not the fairly clear division of governmental functions that obtains in the United States and Great Britain. Upon the continent, a judge is generally to be considered as part of the executive branch of the government. He enters upon his judicial career in his youth, substantially as he might enter the civil or military service, expecting advancement from the executive and susceptible to its influence. This feeling becomes inbred, even if subconscious, and its existence justifies forbidding a national judge appointed to the Hague court from retaining his former position quite as much as it would forbid a diplomatic or other executive officer from continuing in such employment. This branch of our argument, so far as it refers to judicial officers, at least, has little force with reference to the appointment of American members of the court, but we cannot claim exception from a rule worthy of general adoption. If we care, therefore, to have the Hague court in the highest degree an independent body, let us hope that the next Hague conference may decide that the judges hereafter appointed shall, by virtue of their appointment, vacate any purely national position they may be holding.

And this leads us a step further. These judges, while from the necessities of the case named by individual governments, should regard themselves, so far as such a thing may be, not as citizens or subjects of the countries of their birth or adoption, but as citizens of the world and divorced from all possible or at least probable chance of preferment

in their own lands. To this end, their appointment should be for life and their salary sufficient in amount to relieve them from every ambition save that of serving the world in the most distinguished manner. The appointment of a permanent salaried international judiciary such as we are now contemplating would add immensely to the importance, dignity and labors of the Hague court. There are today questions of grave international moment pending between nations and deserving the consideration of such a tribunal, which may not be referred to it because of the expense as compared with the pecuniary amount involved. We have in mind certain cases involving differences as to what constitutes contraband of war, affecting but a few thousand dollars, whose present reference to the Hague court is practically inhibited because the judicial and other fees would probably exceed for each party the amount in controversy. It needs no argument to prove that with increased facility of reference to the Hague court, increased reference will come, and that the habit of referring disputes to judicial determination is like any other habit, good or bad, and will grow with its exercise, until more and more men will appreciate the fact that the few thousand dollars spent for judges pays for itself vastly better than the continued existence of unsettled disputes likely to lead to embittered discussions or worse. Should we not, then, provide that each country shall furnish at least one judge for the court and shall at all times appropriate an amount of money sufficient to pay the number of judges it shall supply, not less than one, together with its proportion of the incidental expenses of the conduct of the court?

If the foregoing suggestions should receive favorable consideration, certain other reforms would flow from them, even without express action. The Hague convention does not in terms provide, although the matter was discussed before the conference and decided opinions expressed, that no member of the Hague court should be allowed to practice before it. In the trial of the Pious Fund Case, the principal counsel for Mexico was a Belgian member of the court. One of the speeches made on behalf of the United States was delivered by another Belgian member, who appeared at the last moment under circumstances unnecessary to detail. In the discussion of the Venezuelan Preferential Question, one of the French members of the permanent court appeared for France, as the result of which Mr. Penfield, agent

and of counsel for Venezuela and the United States, in his report, recommended that in future arbitrations

it should be stipulated that neither of the litigant states should employ as agent or counsel any member of the permanent court.

The reasons for the recommendation and the possible evil to correct which it was suggested are sufficiently obvious without special discussion.

If the Hague court is to do its best work, not only must its judges be impartial in a general sense by being free from the influence of their respective governments, but they must be so selected for each particular case as to be clear of any suspicion of bias for or against litigants. To this end, no national of a litigating country should be allowed to determine an issue as to which his own land is an interested party. I am aware that in the settlement of a case which in its importance indicated the high-water mark of international arbitrationsthat of the Alabama claims-both England and the United States were represented upon the tribunal. But it will be borne in mind that against the award of this great court the English member presented an unseemly protest, while an examination of the record would show that at all times he regarded himself, perhaps unconsciously, as the advocate of the interests of his own country. We cannot overlook the circumstance that in the late Joint High Commission for the settlement of the Alaskan boundary, the two Canadian representatives declined to sign the award and, once outside the meeting room, protested vigorously and publicly against the action of their associates. One cannot be blind to the fact that the history of other mixed commissions has been similar. In the early commissions to settle claims between England and the United States, acrimonious disputes affected their usefulness and well-nigh paralyzed their purpose. Some little practical experience convinces the writer that discussions within the bosom of courts so constituted are in danger of being so heated as to interfere with arrival at just results. In the large majority of cases involving principles or situations assumed to be in derogation of the rights, or infringing upon the susceptibilities of the litigating powers, the judges named by interested nations from among their own citizens will, with rare exceptions, be found siding with the official positions of their countries, and the ultimate result, therefore, is that the grave questions at issue may be decided by the umpire, a single man, who,