CHAPTER XII

INTERNATIONAL TRIBUNALS WITH PERMANENT PERSONNEL

BY ARTICLE 14 of the League Covenant, the Council is directed to "formulate and submit to the members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court," it says, "shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly." It is significant that the Covenant does not itself erect such a court, and that while the Council must formulate and present a plan, the members of the League may or may not adopt it. If, however, a court is created, it may take jurisdiction of all classes of cases of an international character, but only when they are voluntarily submitted to it by the parties. It would have one function even though no cases were presented to it for decision; namely, to give advice, presumably of a legal character, on questions submitted to it by the Council or Assembly. Since there is already in existence a Permanent Court of Arbitration at The Hague, and since, under Article 13 of the Covenant, the parties to a dispute may submit it to a court of their own choosing, it is important to inquire why any new court should be created. Is this new court to be in any way different from the existing Hague Court? It has been said of the latter that its name is misleading-that it is neither permanent nor a court. It is not permanent because there exists. only a large panel from which arbitrators may be chosen by the parties to decide any particular dispute. It is not a court, because For the functions of the court in relation to the International Labor Organization, see Chapter XIX.

it has no continuity of personnel, and no coherent body of traditions built up by successive decisions by the same group of men. It is not bound to see that each subsequent decision is consistent in principle with preceding decisions by other men chosen from the panel. It does not uniformly render its awards according to legal principles. The parties may choose as arbitrators men appointed to the panel by themselves, and therefore compromise rather than judicial decision is to be expected. Are these criticisms justifiable? Certainly the Hague Court is not permanent if permanency requires that the same men, as long as they are members of the Court, shall sit on all cases. The members of the Court are, however, chosen for six years, and the same men could be selected for each dispute if the successive parties so desired. There is a tendency in this direction as pointed out by Professor Wilson1 when he says, "Of the six arbitrators sitting in the cases decided in 1913 and 1914, each arbitrator had previously sat upon at least one case at The Hague and some had already appeared in several cases." Moreover, the Court has a permanent International Bureau which preserves and publishes the records and awards of the Court; and two compilations of the cases decided have been published in English. There is unquestionably a pronounced element of permanency discernible in these facts; and with few exceptions, the awards themselves show an intention to abide by precedent and the principles of international law wherever these can be agreed upon. Exceptions in this respect there are, but a similar situation exists in the decisions of national courts even in those countries where the rule of stare decisis is in force. On the continent, where this rule does not apply, consistency is no more required or to be found than in the awards of the Hague Court. In each case the purpose is to render substantial justice and if possible, once for all, to settle the controversy.

A fundamental difficulty encountered by the Hague Court is the absence of a positive code of international law similar to American and English statute law and the continental codes. This fact must ever be kept in mind when judging the work of international tri"Hague Arbitration Cases, p. vi.

bunals. It affects not only the character of the decisions, but the willingness of states to submit their disputes to arbitration. In order to appreciate the problems involved in the creation of a permanent Court of International Justice, we must distinguish between it and national courts. National courts are the organs of the judicial departments of state governments. Their functions are defined by the state constitutions or statutes, and their decisions are supported by the whole power of the state. They have two kinds of jurisdiction, civil and criminal. The former deals. with controversies between citizens and the latter with violation of state law by a citizen. While a state may punish its subject, the subject may not sue the state without the express consent of the state. This consent is now usually given by statutes which erect special tribunals to hear such claims against the state. The consent may, however, at any time be withdrawn by state act in virtue of its sovereignty. It is a maxim of law that a state may not be sued either in its own court or in any other court without its own consent. Such consent has never been given except where the rules to be applied are well understood.

Unquestionably a state, unless its constitution forbid, may agree to submit a dispute to any international court that may be erected; but it will insist on knowing beforehand the law that is to be applied, and the extent and character of the court's jurisdiction. Except as created by the League Covenant there is nothing in the law of nations which defines crime committed by states; and breaches of the Covenant are to be dealt with, after investigation by the Council, by boycott, economic pressure, and war. A state is not compelled to submit to arbitration, but if it does not do so, it must submit to investigation.

The proposed Court of International Justice must, therefore, since no other kind of jurisdiction is provided for, be a court of arbitration-applying the same law (which as has been said has not been reduced to a code of positive law); acquiring jurisdiction in the same way (i. e., by consent of the parties); and rendering awards with the same binding effect; as does the Permanent Court of Arbitration at The Hague. Its awards will be supported by the

League organization which is more definite than that of the old Society of Nations; but the League stands also back of all arbitral awards made by tribunals chosen by the parties (Art. 13). What need, therefore, is there for a new court? In the first place, it may be convenient and proper to complete the organization of the League, as far as international law permits, by the establishment of its own court. This will aid in the centralization of records and information concerning world affairs. The court would also be at all times available, according to Article 14, for the rendition of advisory opinions upon a dispute or question referred to it by the Council or by the Assembly. It would thus serve as the expert legal department of the League, dealing with intricate and delicate matters without rendering decisions binding on the parties. This function is doubtless of extreme importance, but it could be performed by a group of legal experts not organized into a court. For further justification of its creation we are therefore forced to consider the element of permanency, and the probable number of permanent arbitrators. For this reason this chapter emphasizes permanent personnel as a characteristic of the proposed court. If eminent jurists are to devote their whole time to the court to the exclusion of all other employment, and if they are all to sit on every case, they must be fewer in number than the membership of the League. Efficiency of a permanent court requires that decisions shall be made by a comparatively small group, and therefore (1) that not all states at one and the same time shall have representatives on the court, and (2) that states agree to submit cases to a tribunal even when none of their own nationals or appointees are members of the court. These two points are illustrated in the pages that follow, in which the unsuccessful attempts to create a "Judicial Arbitration Court" and an International Prize Court, and the successful institution of a Central American Court, are described.

A small permanent court, whose members sit upon all cases, would undoubtedly be in a position to apply international law under more favorable circumstances than ad hoc arbitration tribunals, or the present Hague Court. There would be less temptation to be influenced by patriotism or national bias. Living continuously in

a juristic atmosphere, free from politics, and with tenure of office secure, the arbitrators could devote themselves wholly and without fear to the task of applying to specific cases the principles of international law. Their successive awards might therefore contribute powerfully to the development of international law, since consistency would be sought and expected. They would have weight because backed by the whole force of the League. On the other hand, the court might find itself with few cases to decide, not because there were no disputes, but because states might prefer a court made up of arbitrators selected for each case. If a permanent arbitrator were found to possess or were suspected of possessing a bias in favor of a state or of a theory of law, states might be unwilling to submit disputes to a court in which he sat. To this objection the answer might be made that one member could not control the court which probably would decide by majority vote. Since we know nothing about the plans which will be formulated by the Council for the creation of this court, it is perhaps idle to surmise further about it; but it will be helpful to recall the experience of the past with respect to International Tribunals with permanent personnel.

PROPOSED HAGUE JUDICIAL ARBITRATION COURT

One successful and two unsuccessful attempts to create such a court have been made. The Second Hague Conference drew up a "Draft Convention Relative to the Creation of a Judicial Arbitration Court," and called "the attention of the signatory powers to the advisability of adopting" it, "and of bringing it into force as soon as an agreement has been reached respecting the selection. of the judges and the constitution of the court." It was never adopted because these two important preliminaries were never agreed upon. It is not clear that this court would have been an improvement over the Permanent Court of Arbitration created by the First Hague Conference. The older court was not to be superseded by the new court, and the wording of the draft does not definitely distinguish the jurisdiction of the two. "With a view to 'See Appendix 6 (b).