Fourth Session

THE HAGUE CONFERENCES

MONDAY EVENING, MAY 18TH

The fourth session of the Conference, held in the Academy of Music, Philadelphia, on Monday evening, was devoted to the consideration of "The Past and the Future Achievements of The Hague Conferences."

The meeting was called to order by Franklin Spencer Edmonds, chairman of the Executive Committee, who said:

"When the sessions of the Pennsylvania Arbitration and Peace Conference were planned, the Program Committee had it in mind that the chairman of the Congress Committee would see to it that invitations would be extended for public men to be present on this occasion. We turned naturally to the foremost statesmen of our Commonwealth, the Honorable United States Senator Philander C. Knox, and extended to him an invitation to serve as permanent chairman of the convention, and to preside at this meeting. The Senator accepted the invitation, subject to call of public duties, and now we regret to announce that this afternoon a telegram was received announcing that the press of public business made it impossible for him to be present with us this evening.

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Upon receipt of this telegram we turned naturally to our own distinguished fellow-townsman, who has been a leader in all good works, and whom I have persuaded at this time and on this occasion to preside at this meeting. I therefore have great pleasure in introducing to you the Honorable Dimner Beeber."

Mr. Beeber said:

“MR. CHAIRMAN, Ladies and GENTLEMEN: I can well excuse our chairman, because there is nothing else for me to do. I was conscious of the shade of disappoinment that passed over this audience when it learned that our distinguished United States Senator was unable to be present by reason of the press of his public duties. I confess to some feeling of pleasure that the

friends of this movement have honored me in this way. While I am conscious of the fact that the honor is altogether beyond my deserts, I must confess to the weakness that I understand is not uncommon, of being willing to accept the compliment even though undeserved.

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Upon an occasion like this, if Senator Knox could stand where I do, and look at this magnificent audience, I venture to say that he would feel that the public duty that kept him from this place could be nothing but pressure of business, upon an occasion such as this, to keep away from here the most distinguished man that Pennsylvania can produce.

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We meet on this occasion for the prime purpose of encouraging the promises of the universal acceptance of the principle of international jurisprudence. The subject is large; the men engaged in presenting it to the American people are amply equipped. We will have to-night gentlemen to discuss the different phases of this question, who have made it a close and earnest study for years. I am glad to say that the first gentleman to speak in this cause is a product of our own city. It gives me great pleasure to say that he is a graduate of the Philadelphia High School. The gentleman I am about to introduce enjoys the distinction of being the solicitor for the State Department at Washington. He has had the further honor of being appointed the delegate, the technical delegate, to the Second Hague Conference. He has studied this question with more direct reference to its legal difficulties, and he is to-night prepared to talk to you on the subject of an international court of justice, on the subject of the need of such a court.

"I therefore take great pleasure in introducing to you Dr. James Brown Scott, solicitor of the Department of State, Washington, Technical Delegate of the United States to the Second Hague Conference."

THE NEED OF AN INTERNATIONAL COURT
OF JUSTICE.

JAMES BROWN SCOTT, PH.D.

In opening the National Arbitration and Peace Congress in the City of New York on the 15th day of April, 1907, the Hon. Elihu Root, Secretary of State for the United States of America, expressed, in a few apt paragraphs, the causes which have worked against general arbitration and the reasons which have prevented a more frequent recourse to the Permanent Tribunal of Arbitration at The Hague. I therefore beg to quote the following from his address:

It has seemed to me that the great obstacle to the universal adoption of arbitration is not the unwillingness of civilized nations to submit their disputes to the decision of an impartial tribunal; it is rather an apprehension that the tribunal selected will not be impartial. In a despatch to Sir Julian Pauncefote, dated March 5th, 1896, Lord Salisbury stated the difficulty. He said that:

"If the matter in controversy is important, so that defeat is a serious blow to the credit or the power of the litigant who is worsted, that interest becomes a more or less keen partisanship. According to their sympathies, men wish for the victory of one side or another. Such conflicting sympathies interfered most formidably with the choice of an impartial arbitrator. It would be too invidious to specify the various forms of bias by which, in any important controversy between two great Powers, the other members of the commonwealth of nations are visibly affected. In the existing condition of international sentiment each great Power could point to nations whose admission to any jury by whom its interests were to be tried it would be bound to challenge; and in a litigation between two great Powers the rival challenges would pretty well exhaust the catalogue of the nations from which competent and suitable arbiters could be drawn. It would be easy, but scarcely decorous, to illustrate this statement by examples. They will occur to any one's mind who attempts to construct a panel of nations capable of providing competent arbitrators, and will consider how many of them would command equal confidence from any two litigating Powers.

"This is the difficulty which stands in the way of unrestricted arbitration. By whatever plan the tribunal is selected, the end of it must be that issues in which the litigant States are most deeply interested will be decided by the one of one man, and that man foreigner. He has no jury to find his facts; he has no court of appeal to correct his law, and he is sure to be credited, justly or not, with a leaning to one litigant or the other.'

The feeling which Lord Salisbury so well expressed is, I think, the great stumbling block in the way of arbitration. The essential fact which supports that feeling is that arbitration too often acts diplomatically rather than judicially; they consider themselves as belonging to diplo

macy rather than to jurisprudence; they measure their responsibility and their duty by the traditions, the sentiments, and the sense of honorable obligation which have grown up in centuries of diplomatic intercourse, rather than by the traditions, the sentiments, and the sense of honorable obligation which characterizes the judicial departments of civilized nations. Instead of the sense of responsibility for impartial judgment which weighs upon the judicial officers of every civilized country, and which is enforced by the honor and self-respect of every upright judge, an international arbitration is often regarded as an occasion for diplomatic adjustment. Granting that the diplomats who are engaged in an arbitration have the purest motives; that they act in accordance with the policy they deem to be best for the nations concerned in the controversy; assuming that they thrust aside entirely in their consideration any interests which their own countries may have in the controversy or in securing the favor or averting the displeasure of the parties before them,-nevertheless it remains that in such an arbitration the litigant nations find that questions of policy, and not simple questions of fact and law, are submitted to alien determination, and an appreciable part of that sovereignty which it is the function of every nation to exercise for itself in determining its own policy is transferred to the arbitrators. .

What we need for the further development of arbitration is the substitution of judicial action for diplomatic action, the substitution of judicial sense of responsibility for diplomatic sense of responsibility. We need for arbitrators, not distinguished public men concerned in all the international questions of the day, but judges who will be interested only in the question appearing upon the record before them. Plainly, this end is to be attained by the establishment of a court of permanent judges, who will have no other occupation and no other interest but the exercise of the judicial faculty under the sanction of that high sense of responsibility which has made the courts of justice in the civilized nations of the world the exponents of all that is best and noblest in modern civilization.

It is a familiar doctrine that the shoemaker should stick to his last and that he should not go beyond it. It should be an equally familiar doctrine that lawyers and jurists of reputation are pre-eminently qualified to deal with questions relating to the organization and development of a court of justice. The opinion is not expressed, either directly or indirectly, that the layman should not have views upon this subject, and express them, but it would seem to be unargueable that the advice of the bench and the bar should be determinative in all questions relating to courts of justice.

The plan which the American delegation has had the honor to lay before the Conference is the result of direct instructions from the Secretary of State, who is not only a lawyer of distinction, but a leader of the bar. The explanation of the general principles relating to the establishment of a permanent court comes from our distinguished first delegate, who led the American Bar as long as he chose to remain in active practice.

It would seem, therefore, that a project outlined by one practitioner of distinction, and commended to your careful consideration by another no less distinguished member of the profession, must possess qualities which commend it to the consideration of the profession at large.

The American people, rightly or wrongly, are regarded as pre-eminently practical, and a project which commands their unanimous support, because it expresses their innermost desire, must be practical in the broadest sense of the term. But we believe that the project for the establishment of a permanent court will not merely commend itself to practitioners, but that it is susceptible of theoretical defense.

Before entering upon the detailed exposition of the project and presenting the fundamental principles underlying the proposed permanent court, I desire to call attention to the present court and to show its strength and its weakness,-in order that it may appear that our project develops the strength on the one hand and eliminates the weakness on the other.

The strength of the work of 1899 lies in the idea of a court for the settlement of international differences; its weakness consists in the fact that the machinery provided is inadequate for its realization.

I quote the following articles from the Convention of 1899:

Article XV. International arbitration has for its object the settlement of differences between States by judges of their own choice, and on the basis of respect for law.

Article XVI. In questions of a legal nature, especially in the interpretation or application of international conventions, arbitration is recognized by the signatory Powers as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.