492
The Green Bag
of the law and unjust only because no living voice of universal law proclaims the rule of justice, will beat its swords into plowshares and its spears into pruning hooks and learn war no more. Such a notion, gravely entertained by statesmen and promulgated by con ventions and conferences of laymen, who are not prone to think any too well of law in its domestic manifestations, is indeed flattering to the law. And it is from the view-point of our profession, as practising lawyers and as men more or less versed in the law in its practical applications, that I think it worth our while to study the first of the vaux of the last Hague Conference, proposing the establishment of what is officially called a Permanent Court of Arbitral Justice. While I wish to discuss the scheme for such an international tribunal only in general terms, and if I may with becoming modesty say so only in its more philosophic aspects, it may be well to outline briefly the specific Hague proposal for such a Court, especially as it is the culmination of a great variety of movements so far in that direction. The first Hague Conference in 1899 created a so-called Permanent Court of Arbitration, which is still in existence. It is, however, not a "permanent" trib unal, nor even a "tribunal" at all. It is simply a panel of about sixty possible arbitrators named by the signatory powers, from which list judges may be selected by the disputant nations for a given case. It has none of the functions nor powers of a court, has no permanence nor con tinuity, and is at best a cumbersome, time-consuming and expensive contriv ance. The arbitrators selected from the panel merely assemble and deliver judg ment on any clearly defined issue pre sented to them by two or more litigant nations which have previously agreed to
select them and abide by their decision. The rules of procedure may be varied to suit the parties, and the fulfillment of the award is left to the honor of the disputants and to the moral compulsion of international public opinion. Since its creation ten years ago this Court has been used in five cases only; and it owes its existence almost entirely, I think, to a desire on the part of the first Hague Conference not to adjourn without doing something that might be construed as a step in the direction of a real Inter national Court. At the second Hague Conference in 1907 the question of such a real Inter national Court threatened to pass from the academic to the practical stage. No one could follow the proceedings of the Conference without realizing that its members took their work with much seriousness and solemnity, and had hopes of accomplishing great results; but, at the same time, one could not help sus pecting that the chancelleries of the great Powers were smiling up their sleeves at the solemn consideration their representatives at the Conference were giving to questions of great abstract worth but of little possibility of concrete fulfillment. Just as your political boss permits his puppets to debate profound questions with profound sincerity be fore he pulls the strings that actually move the machinery, so England, Ger many, Russia, Japan, and even the United States permitted and even in structed their delegates to submit pro posals and agree to vasux, which, as practical possibilities, they well knew had not the remotest hope of success. I have a suspicion that this Supreme Court project belongs to this category. However, the proposal for such a Court bulked large in the proceedings of the Conference; and it should be all the more interesting to us as lawyers,
