A New International Court willing to accept the principle of judicial precedent, have developed it solely in dependence upon a code system, and shrink from acceptance of a court which has only unwritten law to administer, or at best law only partly codified. "To await the codification of the law and the acceptance of it by forty-six nations would be," as Dean Rogers says, "to postpone indefinitely the establishment of the Court." We should therefore establish the Court, and ask nations to submit their controversies to it only in so far as they are satisfied that the law administered will be the right law. We should not compel any nation which desires a codified international law to subject itself unwillingly to the jurisdiction of a court of unwritten law. "An international court," says Dean Rogers, "can administer justice accord ing to international law and international equity without waiting for the estab lishment of an international code, how ever desirable such a code may be." That may be a good reason for urging reluctant nations to accept the AngloAmerican system of uncodified law, but is not a reason for making them do it against their will, and the jurisdiction of the Court should be voluntary rather than compulsory if it is to aim at receiv ingThe the jurisdiction general support of the of the newnations. Court should be so defined as not to be confused with that of the Hague Per manent Court, one tribunal existing for the settlement of semi-political con troversies, or controversies involving problems of domestic policy, the other for the determination of questions which may be settled by the application of known principles of international law and equity. The line between the two jurisdictions should be indistinctly rather than sharply drawn, in accordance with the principle that the less a nation is
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hampered in the selection of the court, the more willingly it will consent to arbitrate. For this reason we cannot approve Mr. Tryon's suggestion that an appeal be allowed to the Court of Arbit ral Justice, not alone from municipal courts but from the Hague Permanent Court as well. Neither court should have final and exclusive authority, but the functions of the two should be special ized and no delay occasioned by pro vision for an unnecessary appeal. A nation which has agreed to be bound by an award may well be given a chance to show its good faith by accepting it without asking for an appeal. The decisions of a court of volun tary jurisdiction have the same sanc tion as those of one of mandatory juris diction. The sanction of its decisions is found in public opinion, which com pels those who have pledged them selves to arbitrate to accept the terms of the arbitration. To those who claim that no sanction save that of force is sufficient, it is enough to answer that public opinion is force, not organized force it is true, but indeterminate, fluc tuating, multiform social force, ready to assert itself should occasion arise, and quite as efficacious, in the long run, as the force exerted by government agencies. An elastic system of volun tary arbitration cannot fail to create courts of as much sanction and authority as a system which assumes, notwith standing the non-acceptance of the idea of world federation, that arbitra tion rests on the principle of co-ercion by a world-sovereign rather than on freedom of contract between indepen dent states. The era of international arbitration is to be established solely by agreements between the powers, and the project should be presented to them in a form to which they will readily assent. The social contract is a fic
