Page:The Green Bag (1889–1914), Volume 25.pdf/190

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A New International Court


is little in the history of the Hague Per manent Court to warrant the interpre tation that it has been a diplomatic commission rather than a court of judi cial arbitration. Mr. Tryon himself concedes that "the Permanent Court of Arbitration, whatever the legal attain ments of its judges, cannot be impeached in respect to the legality of the great majority of its decisions." As a matter of fact the diplomats are outnumbered in the panel by statesmen who have had no diplomatic experience, and the proportion of international jurists and judges of domestic courts is large. Con sequently the traditions of the court have become impressed with the char acter less diplomatic than juridical. The tendency, however, to regard ar bitration as antagonistic to impartial j udicial settlement has shown itself in re cent discussions of the Panama Canal question. On this question whether the country could in fact get an impartial tribunal, in spite of what Senator O'Gorman and others have said regarding the impossibility of securing one, two re cent utterances have appeared which confirm the position taken by the Green Bag. One writer says : With the example of Charles Francis Adams in the Geneva arbitration and of Lord Alverstone in the Alaskan Boundary dispute before us, not to mention the highly honorable record of the British admiralty courts and of the Supreme Court of the United States in prize cases, can it be fairly maintained that we could not get an impartial hearing before the Hague Court because of the interests of other nations in the issue at stake? Is it to be supposed that international jurists of the stamp of the late Professor de Martens, of Asser, Savornin Lohman, Gram, Lammasch, and Renault, some of whom have sat on as many as four Hague tri bunals, would place the shipping interests of their countries above their sense of justice and their good repute as jurists?'

haps the only country capable of furnishing inter national jurists of high standing, who would probably be free from all pressure of selfish public opinion when acting as judges of the case." Switzerland could undoubtedly furnish them. So could many other countries, including Great Britain and the United States. ... In nearly all countries of the civilized world there are today international jurists who, whether engaged in the practice of law at the bar, administering it on the bench, or holding chairs in our universities and law schools, possess the requisite knowledge, courage, and judicial spirit to declare and administer the law applicable to this and similar differences of a legal nature. The time has, indeed, passed when it can be seriously main tained that such disputes are incapable of judicial solution.6 The Court of Arbitral Justice proposed as an alternative to the Hague Perma nent Court is by no means free from perplexing questions of organization. Whether Mr. Tryon can declare, with absolute accuracy, that "we of the United States believe in the juridical equality of nations" is perhaps questionable. This doctrine of equality may place some obstacles in the path of a good work ing agreement among the nations, as the greater are not eager to allow the weaker equal representation with them selves, and the justice of such an arrange ment will not be universally conceded. This question of the rights of the smaller powers was one of the stumbling-blocks at the second Hague Conference which prevented an agreement as to the mode of organizing the court. Should the United States see fit to claim an indivi dual judge in the court, in violation of the principle which Mr. Tryon enun ciates, we cannot see how it would be rejecting "the juridical as opposed to the arbitral principle." The agreement respecting the Prize Court provided

•John H. Latane, in American Journal of Inter national Law, v. 7, p. 23 (Jan.).

' Professor Amos S. Hershey, in no. 63 of publica tions of American Association for International Conciliation, sub-station 84, New York City.

It Another has been writer suggested says: that "Switzerland is per