The Pro posed International Prize Court. VII THE PROPOSED INTERNATIONAL PRIZE COURT AND THE Lawrence, § 192-Nys, ii. p. 577-Despagnet, No. 683 bis-Hershey, No. 317 -Gregory in A.J., ii. (1908), pp. 458-475-Scott, The Hague Peace Conferences (1909), i. pp. 465-511 and 423-464, and in A.J., v. (1911), pp. 302-324, and vi. (1912), pp. 316-358-Wehberg, Das Problem eines internationalen Staatengerichtshofes (1912)—Proceedings of the American Society of International Law, vi. (1912), pp. 144-178-Schramm, Das Prisenrecht (1913), § 19-Lammasch, Die Lehre von der Schiedsgerichtsbarkeit (1913), pp. 137-146-Strupp, Die internationale Schiedsgerichtsbarkeit (1914), p. 84-Balch, A World Court in the Light of the United States Supreme Court (1918)—Reinsch in A.J., v. (1911), pp. 604-614— Lehr in R.I., 2nd Ser. xvi. (1914), pp. 137-156-Scott, The Status of the International Court of Justice (1916). § 476a. Convention XII. of the second Hague Peace Conference of 1907 provided for the establishment of an International Prize Court at the Hague, and when the last edition of this work was published it was anticipated that this court would be set up. But the convention failed to secure ratification. The court was to have consisted of fifteen judges and fifteen deputy judges, appointed for a period of six years. Of the fifteen judges nine were to constitute a quorum; a judge who was absent or prevented from sitting was to be replaced by his deputy judge. Each contracting Power was to appoint one judge and one deputy judge, and the judges appointed by Great Britain, Germany, the United States of America, Austria-Hungary, France, Italy, Japan, and Russia were always to be summoned to sit, whereas the judges appointed by the other contracting Powers were to sit by rota, as shown in the table annexed to the convention. If a belligerent Power had, according to the rota, no judge sitting in the court, it had the right to ask that the judge appointed by it should take part in the settlement of all cases arising from the war; lots were then to be drawn as to which of the judges entitled to sit according to the rota should withdraw, but this arrangement was not to affect the judge appointed by the other belligerent. The belligerent captor was to be entitled to appoint a naval officer of high rank to sit as assessor, but with no voice in the decision; a neutral Power, which was a party to the proceedings or whose national was a party, was to have the same right of appointment. The seat of the International Prize Court was to be at the Hague. As the convention remained unratified, no such court had been established when the World War broke out, and no further steps have been taken with regard to it. Inter Court of § 4766. Valuable as has been the Permanent Court of The ProArbitration at the Hague, it must be pointed out that it posed is not a real court of justice. For, in the first place, it is national not itself a deciding tribunal, but only a list of names, Justice. out of which the parties in each case select, and thereby constitute the court. Secondly, experience teaches 1 that a court of arbitration endeavours rather to give an award ex aequo et bono, which more or less pleases both parties, than to decide the conflict in a judicial manner, by simply applying strict legal rules, without any consideration as to whether, or not, the decision will please either party. Thirdly, since in conflicts to be decided by arbitration the arbitrators are selected by the parties on each occasion, there are in most cases different individuals acting as arbitrators, so that there is no continuity in the administration of justice. For these reasons it would be of the greatest value to institute, side by side with the Permanent Court of Arbitration, a real International Court of Justice, con 1 Balch (Arbitration as a Term of International Law, reprinted from the Columbia Law Review, 1915) contests this widely accepted statement, and maintains that arbitration courts have not in the past attempted to make a compromise between the parties any more than sisting of a number of judges in the technical sense of the term, who are once for all appointed, and would have to act in each case that the parties chose to bring before the court.1 Such a court would only take the legal aspects of the case into consideration, and would base its decision on purely legal deliberations. It would secure continuity in the administration of international justice, because it would in each case consider itself bound by its former decisions. It would, in time, build up a valuable practice, by deciding innumerable controversies which as yet haunt the theory of International Law. The second Hague Peace Conference of 1907 discussed the question of creating such a court, but only produced the draft of a convention concerning the subject, which spoke of the creation of a judicial 'arbitration' court, and thereby obliterated the boundary line between the arbitral and the strictly judicial decision of international disputes. However, there was no doubt that new attempts would be made to bring about the establishment of an International Court of Justice, in contradistinction to the Permanent Court of Arbitration, for the parties to a conflict frequently hesitate to have it settled by arbitration, whereas they would be glad to have it settled by a strictly judicial decision of the legal questions involved. In the same year, 1907, Costa Rica, Guatemala, Honduras, Nicaragua, and San Salvador established the Central American Court of Justice' at Cartago, consisting of five judges.2 This court was never of more than local importance, and it came to an end in 1918; 3 but it is of interest as having been the first of its kind. 6 1 Different from this court would be an international court of justice for the settlement of money claims of private individuals against foreign States, as proposed by Wehberg, Ein Internationaler Gerichtshof für Privatklagen (1911); see also Bar in See A.J., ii. (1908), Supplement, p. 231. See A.J., xii. (1918), p. 380. A far more important attempt to establish an International Court of Justice is now being made. Article 14 of the Covenant of the League of Nations directs the Council to formulate plans for the establishment of such a court, to hear and determine any dispute of an international character which is submitted to it, and to give an advisory opinion on any matter referred to it by the Council or by the Assembly. Accordingly, on February 13, 1920,1 the Council resolved to invite a committee of international jurists to prepare plans for the court, and this committee is now sitting (June 1920). The Treaties of Peace have in many cases provided that any dispute which should arise with regard to particular matters dealt with by them should be referred to this court when it has been established.2 1 See The Times, February 14, 1920. 2 The desire to secure the execution of arbitral awards, and the desire to protect the territories of neutrals from encroachments by powerful belligerents, have led, on the part of some imaginative writers, to the proposal to establish an international police force. See Vollenhoven in R.I., 2nd Ser. xiii. (1911), pp. 79-85; Eysinga in Z. V., v. (1911), pp. 527-534; Erich in Z.V., vii. (1913), pp. 308-325. Erich (loc. cit., p. 324) also proposes the establishment of a special international' State, on whose territory the international police force should be stationed. It need hardly be stated that these, and similar, proposals are utopian. The idea of establishing an international court with an international army and navy to execute its judgments was put forward by Waldstein, The Expansion of Western Ideals and the World's Peace (1899), pp. 110-112. |