Arbitration and the world court / by Charles G. Fenwick and International Law and Organization Commi


PAMPHLET HO. 23

Arbitration

and the World Court

By

Charles G. Fenwick, Ph.D.

and

International Law and Organization Committee

PRICE 10 CENTS

THE CATHOLIC ASSOCIATION FOR
INTERNATIONAL PEACE

1312 Massachusetts Avenue, N.W.

Washington, D. C.

1937



I

i A PPRECIATION for their cooperation in
sponsoring this report is hereby ex-

pressed to Rosemont College, Rosemont,

Pennsylvania, in their response to the Holy

Father’s appeal, “May they all unite in the
peace of Christ in a full concord of thoughts

and emotions, of desires and prayers, of

deeds and words—the spoken word, the writ-
ten word, the printed word—and then an at-
mosphere of genuine peace, warming and

j

beneficent, will envelop all the world.”
j

f



Arbitration and the ^X^orld Court

Study Presented

to

The Catholic Association for International Peace

by

International Law and Organization Committee

PRICE 10 CENTS

THE CATHOLIC ASSOCIATION FOR
INTERNATIONAL PEACE

1312 Massachusetts Avenue, N.W.

Washington, D. C.



r“pHIS is a report from the International Law and
j

Organization Committee of the Catholic Asso- !

ciation for International Peace and is being issued
j

as a study from that Committee. This report, being
j

the report of only one Committee, is not a statement I

from the whole Association. j

I

INTERNATIONAL LAW
AND ORGANIZATION COMMITTEE

Chairman

CHARLES G. FENWICK

Vice-Chairmen

F. A. ARLINGHAUS
MARIE J. CARROLL

Rev. J. L. Burke, S.J.
John K. M. Ewing
James E. Finegan
Maurice I. Hart
Sylvester J. Hemleben
Mrs. E. W. Lesley
Richard P. Lydon
Elizabeth M. Lynskey
Martin T. Manton
Clarence E. Martin
Camden R. McAtee
Rev. James H. McConnell
Chari.es N. R. McCoy
John P. McGoorty

James

Louise McGuire
Charles P. O’Donnell
Walter G. O’Donnell
Rev. James A. Reeves
William F. Roemer
William Ryan
Rev. Alphonse M. Schwitalla, S.J.
Margaret Shaughnessy
Mrs. F. J. Sisson
Sister Rose de Lima
Melanie Staerk
Rev. Herman I. Storck, S.J.
Richard L. Sullivan
Richard M. Tobin

T. Vocelle

©ertlffgd



TABLE OF CONTENTS
PAGE

I

The Supreme Court of the United States as an Ex-
ample of a Court of Settlement of Disputes Be-

tween Nations 5

II

Arbitration as a Procedure for the Settlement of
International Disputes 7

III

The Proposed Judicial Arbitration Court of 1907 9

IV

Organization of the Permanent Court of Inter-
national Justice (The “World Court”) 11

V
Jurisdiction of the Permanent Court of Interna-

tional Justice 12

VI

The United States and the Permanent Court of In-
ternational Justice 17

VII

The Relation Between Peace and Justice 23

APPENDICES

Appendix A
Documents Relating to the World Court 30

Appendix B
N. C. W. C. Study Club Outline 39

Appendix C
Bibliography 44



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Arbitration and the World Court

I The Supreme Court of the United States as an Ex-

ample of a Court of Settlement of Disputes

Between Nations

THE ideal of a world of nations
cooperating together for the

promotion of their mutual interests and submitting their

disputes to the peaceful arbitrament of international
courts is

one from which few responsible persons would dissent at
the

present day. It is an ideal representing the highest
principles

of Christian ethics, proclaimed from time to time in the
past

by religious leaders and philosophers even when the practice
of

nations may have departed far from it. Within recent years

substantial progress has been made toward a clarification of the

practical conditions necessary to the attainment of the
ideal.

The old dogmatic assertion that wars are inevitable and that it

is part of human nature to fight is giving way to a realization

that the evil of war can and must be eradicated if Christian civi-

lization is to survive. Our concern today is no longer how to

make more tolerable wars that cannot be abolished, but rather

how to find ways and means by which the ideal of international

cooperation and world peace may become an actual reality in

the face of existing conditions. The goal is now clearly before

us, even if we are still far short of attaining it.

The peaceful settlement of international disputes raises two

distinct practical problems. There is, first of all, the problem

of obtaining an impartial international tribunal before which

disputes may be brought for settlement. Unless a court can be

found which will command the confidence of nations it is un-

likely that the appeal for a peaceful settlement can be made to

prevail against the desire of a nation to obtain what it believes

to be its due. Secondly, it will be necessary to formulate in

reasonably clear terms the rules of law to be applied by the

court. For unless a nation knows beforehand tbe principles

by which its case will be judged it will in most instances be un-

willing to believe that any court would be truly impartial.

In seeking an answer to these two problems we naturally

look for analogies and illustrations in the relations of citizen

to citizen within the individual state. Here we find that

through succeeding centuries the authority of the courts has

come to be accepted as final and absolute. It may happen on

occasion that a particular court will render a decision which ap-

5



6 Arbitration and the World Court

pears unjust not only to the losing party, which could hardly

be expected to see the justice of the award, but to the com-
munity at large. In such a case no one would think of sug-
gesting that the courts be abolished in favor of a return of
hand-to-hand combat. Rather the effort would be to change
the law which led to the unjust decision, or, if the judge him-

self be unworthy, to remove him in favor of another better fitted
to interpret the law.

In the same way it has been for a hundred and forty years
the rule of the American Constitution that the individual states
of the Union must submit their disputes to the Supreme Court
of the United States. Year after year the Supreme Court has
heard the claims of one state against another. Missouri has
brought suit against Illinois to prevent the construction of the

Chicago drainage canal which threatened to pollute the waters

of the Mississippi; Kansas has brought suit against Colorado
to prevent the diversion of the waters of the Arkansas River;

and Virginia has brought suit against West Virginia to secure
the payment of a debt. In all these cases the decision of the
dispute has been accepted by the losing parties as a final settle-
ment not because they believed their case was a bad one, but
because they acknowledged the authority and general impartial-
ity of the Supreme Court and realized that the only alternative
to accepting its decision would be a resort to force and conse-
quent general anarchy.

In the history of international relations numerous instances
of the settlement of disputes between states by arbitration can
be found in ancient Greece and Rome, and in the Holy Roman
Empire at the time the Papacy was at the height of its moral
influence and authority. A relapse came with the growth of
nationalism in the sixteenth century and the assertion of the
unrestricted “sovereignty” of states in the succeeding centuries.

Beginning, however, with the Jay Treaty of 1794, the United
States initiated a new movement in favor of the arbitration
of international disputes, and its record during the nineteenth
century is one to be proud of in spite of serious breaks in it.
By the close of the nineteenth century the earlier isolated in-
stances of arbitration had multiplied rapidly, and the nations
came to realize the need of giving definite organization to a
practice which was becoming more and more recognized as the
necessary alternative to armed force.



Arbitration and the World Court 7

jl—

A

rbitration as a Procedure for the Settlement
of

International Disputes

In the first place it was seen that if arbitration
was to be

more widely resorted to it was desirable to
conclude treaties in

which the parties would agree beforehand, to submit
their future

disputes to arbitration when the occasion should
arise, lo

wait until a dispute had arisen and then propose
that it be

arbitrated was to risk the adverse pressure of national
passions

aroused by the dispute. An agreement made in advance of
the

existence of a dispute, when the parties were in a
cooler and

more rational mood, would operate as a brake
in time o a

crisis and would pledge the good faith of the
nations to resort

to arbitration. This ideal led to the
conclusion, in the first

decade of the twentieth century, of a large
number of bilateral

treaties in which the contracting parties agreed
to submit to

arbitration disputes of a specified character.
The difficulty

presented by these treaties was that the nations were
unwilling

to submit all of their disputes without exception
to arbitration,

since they had not as yet confidence in the court
which might

be called upon to decide them, and they were not
sure what

principles of law would be applied by the court.

A solution was found for this difficulty by providing loop-

holes of escape from the obligations of the treaty
whenever an

escape might seem desirable. Thus in the series of treaties
en-

tered into by the United States in 1908, known as the
Root

treaties, the contracting parties agreed to arbitrate
all “legal”

disputes, as distinct from “political” disputes, and
disputes re-

lating to the interpretation of treaties; but even this
obligation

was limited by the proviso that in no case should the
dispute

be one affecting the vital interests, the independence,
or the

honor of the two contracting states, or the interests
of third

parties.
.

Valuable as these treaties were as a first step in the recog-

nition of an obligation to arbitrate, it was easily seen that
the

loophole was so large that as a practical matter the only
kind

of disputes which the parties agreed to arbitrate were
those

they would not be likely to fight over in any case, and the
dis-

putes which were excepted from the obligation were the
very

ones which experience had shown were the usual causes of war.

In 1911, President Taft made an effort to correct this feature



8 Arbitration and the World Court

of the Root treaties by substituting new treaties which recited
that the parties were prepared to arbitrate all “justiciable” dis-

putes, that is, disputes which were of such a character as to
lend themselves to a decision based upon principles of law or
equity. The question then arose, who should determine whether
a dispute was “justiciable” or not, and on that point the Presi-
dent and the Senate failed to come to an agreement, with the
result that the treaties were never ratified.

Under Mr. Bryan, as Secretary of State, new treaties were
drawn up in 1913 which had a somewhat different object in
view. It was recognized that no agreement could be hoped for
by which all disputes of whatever character would have to be
submitted to arbitration. Conceding that, why could not the
nations agree that whatever the character of the dispute,

whether it involved vital interests or merely some lesser claim,
it should at least be submitted to an impartial commission for

investigation and report, in the hope that during the interval
the disputants might modify the insistence of their demands
and be willing to accept a compromise? By reason of a clause
forbidding a resort to war while the commission was sitting and
for a period of three months afterwards, these treaties came to
be known as the “Cooling-Off Treaties,” their technical name
being “Treaties for the Advancement of Peace.” They were
entered into by the United States with a large number of states,
and their influence has been far-reaching, due to the emphasis
they laid upon the desirability of postponing decisions in time
of national excitement and referring disputes to impartial com-
missions for discussion even when there was no obligation to
accept the report of the commission. Treaties of this character

are now known as “Treaties of Conciliation,” as distinct from
“Arbitration Treaties,” the difference between the two being
chiefly in the absence or presence of an obligation to submit to
the award of the commission.

The second phase of the effort in the last decade of the nine-
teenth century to give more definite organization to methods
of peaceful settlement of international disputes consisted in

plans for the establishment of a fixed court to replace the oc-
casional courts created in the past for each particular dispute.
In 1899, a Peace Conference met at The Hague and created an
institution known as the Hague Permanent Court of Arbitra-
tion. This “court” was not in any real sense a court, since it



Arbitration and the World Court 9

consisted merely in a list of judges appointed by the states

which were parties to the agreement, from which list any two

states which might happen to have a dispute could select the

judges who were thereupon authorized to decide their particu-

lar case. Since the composition of the particular tribunal

changed with each case submitted to arbitration, the designa-

tion “permanent” scarcely described the court as a working

institution. Nevertheless the Hague Court served a useful

purpose; it is still in existence and has a noteworthy record of

decisions. The United States has been a party to it from the

beginning and has submitted a number of cases to it.

HI—The Proposed Judicial Arbitration Court of 1907
At the second Hague Conference of 1907, efforts were made

by the American delegates to establish a truly permanent court

which would have a fixed composition and be in regular and

continuous session. Only a court of this kind, it was asserted,

could possess “a sense of judicial responsibility” and command

the authority necessary to bring the nations to submit to it. It

was to be a “judicial” court as distinct from an arbitration

court, the word “judicial” meaning that the court would render

legal decisions rather than make awards more or less by com-

promise between conflicting claims. The efforts of the Amer-

ican delegates were, however, unsuccessful, owing chiefly to

the difficulty of reconciling the claims of the large and the small

states to equal representation upon it.

At the close of the World War it was generally recognized
that among the new agencies of peace must be a court of a more

permanent character, after the character of that proposed by

the American delegates in 1907. Article 14 of the Covenant

of the League of Nations made provision for the formulation

of plans for such a court, and in pursuance of this provision the

Council of the League of Nations appointed a committee of

ten jurists to prepare the plan of what was to be known as the

Permanent Court of International Justice. The committee of

jurists met at The Hague in 1920, having among its members

Mr. Elihu Root who, as Secretary of- State of the United States

in 1908, had been instrumental in negotiating the Root treaties

of arbitration and who was an outstanding advocate of judicial
institutions as an agency of international peace. The chief



10 Arbitration and the World Court

problem before the committee was the old one which had

proved the stumbling-block in 1907, namely, that of reconciling

the claims of both large and small states to a seat upon the

court. The court had to be reasonably small in number, and

in consequence it could not have a representative of every
na-

tion upon it; at the same time the Great Powers were unwilling

to establish a court which did not have one of their
own na-

tionals among its judges. The idea still persisted of regarding

the court as a political as well as a judicial body; and in view

of the uncertain character of many of the rules of international

law this attitude was natural if not altogether justifiable.

A solution of this difficult problem was found by providing
that the judges of the court should be elected by the Council

and the Assembly of the League of Nations sitting separately.

Since the Council of the League represented the larger states,

they would be able to prevent by their vote in the Council the

election of any judge who might seem to have a bias against

them. On the other hand the smaller states, having a major-

ity in the Assembly of the League, would be able to block the

election of a judge who might seem to them to have the great-

power point of view. A parallel to this attitude might be found
in the conflict that has on occasion taken place in the Senate of

the United States when it has been a question of confirming

nominees to the Supreme Court who are suspected of being un-

duly favorable to big corporations or biased against them.

A second problem before the draft committee was to deter-
mine what should be the authority or jurisdiction of the court

to hear cases. No previous court had possessed any jurisdic-
tion other than that which the parties to a dispute might be

willing to confer upon it in each particular case. The draft

committee now proposed that the jurisdiction of the court

should be made obligatory for four groups of cases, namely,

cases involving the interpretation of a treaty, a question of

international law, the existence of facts constituting the viola-

tion of an international obligation, and the reparation to be

made for any such violation. These four groups of cases dealt

with points of law and points of fact, and it was believed that

they were of a character which made it safe for a nation to

agree beforehand to submit them to the decision of the court.



Arbitration and the World Court 11

XV Organization of the Permanent Court of
Inter-

national Justice (The “World Court”)

The draft plan prepared by the committee of jurists, drawn

up in the form of a “Statute” or constitution, was
submitted

first to the Assembly of the League, which finally
adopted it on

December 13, 1920, after certain amendments had
been made.

The most important amendment changed the jurisdiction
of

the court, so that recourse to it should be in
all cases voluntary.

The obligation to submit the four groups of cases was taken
out

of the Statute and offered in the form of an “Optional
Clause

which might or might not be accepted by individual
nations

according as they saw fit to undertake the obligation.
Follow-

ing the adoption of the Statute of the court by the
Assembly

of the League it was decided that the court should
come into

existence not by the action of the League of Nations but as the

result of a new treaty to be ratified by the nations wishing to

become parties to it, and to be an obligation distinct from
the

Covenant of the League. This new treaty bears the name of

the Protocol of the Permanent Court of International Justice,

and being a separate agreement, standing on its own legal

ground, it can be sighed by nations not members of the League

of Nations. On January 1, 1936, forty-nine states had in the

popular sense “joined the World Court” by formal ratification

of the Protocol. Of these forty-nine states,
.

forty-one had

signed the Optional Clause accepting the jurisdiction
of the

Court for the four groups of law-and-fact cases. Provision
is

made in the Statute that the Court shall be open not only to

those states which have ratified the protocol of signature
but

also to states, such as the United States, which have the
right

to ratify but have not done so, and to states which have as
yet

no right to join but which might desire to bring their cases be-

fore the Court.

Under the Protocol of 1920, the Court consisted of fifteen

members, eleven judges and four deputy judges, who were

elected for a term of nine years. On September 25, 1930, the

Assembly of the League of Nations, exercising powers granted

under Article 3 of the Statute, increased the number of judges

to fifteen. Nominations to membership are made by having

recourse to the old Hague Court of Arbitration established in

1899, which, acting by national groups, proposes the names to



12 Arbitration and the World Court

be voted upon by the Council and the Assembly of the League.
The conditions of nomination are such as to insure the election
of judges who are reasonably free from national bias. At the
same time the judges must possess individual qualifications in
respect to moral character and juristic ability, while a general

qualification of the Court as a whole is that it should “repre-

sent the main forms of civilization and the principal legal sys-

tems of the world.” In order to quiet the fears of certain states

that their case might be prejudiced if none of the judges were

of their nationality, provision is made in the Statute that in such
event special judges of the nationality of the contesting parties

should be appointed for the particular case. From one point of
view this was a grave concession to national prejudices, for it

suggests that judges will always vote on the side of their own
nation; but inasmuch as the national judge is but one of a

court of eleven, now become fifteen, the appointment of such
judges may be looked upon rather as intending to insure that
the case of the particular country shall be considered from

every angle.

V

—

Jurisdiction of the Permanent Court of

International Justice

The jurisdiction of the Court insofar as the Statute itself
goes is, as has been seen, entirely optional. But since as a mat-
ter of fact a large majority of the states which are parties to
the Court have signed the Optional Clause conferring juris-

diction upon the Court in the four specified groups of cases the
obligatory jurisdiction of the Court is actually very wide.

Moreover the Court has what may be called a “special juris-
diction” based upon separate treaties which, while relating pri-
marily to other matters, contain an “arbitral clause” which

obligates the parties to submit to the Permanent Court any dis-
putes which may happen to arise in connection with the inter-
pretation of the treaty. The Versailles Treaty and the several
mandates and minorities treaties contain provisions of this kind,

as do the treaties entered into by the members of the Inter-
national Labor Organization.

A somewhat unusual characteristic of the Court is its func-
tion of rendering what are known as “advisory opinions.” In
Article 14 of the Covenant of the League of Nations, which



Arbitration and the World Court 13

called upon the Council to prepare plans for the Court, it was

stated that “the Court may also give an advisory opinion upon
any dispute or question referred to it by the Council or by the

Assembly.” The Court was thus thought of as having two sets

of activities. On the one hand it was to render “judgments,”
which are formal awards handed down in a dispute between two

litigants and binding upon them as a final settlement of the

case. On the other hand it might be called upon to give ad-
visory opinions, which would not have a definitive character

and would be no more than an expression of the opinion of the

Court upon the subject submitted to it for an opinion. Orig-

inally the idea behind the proposal of advisory opinions seems

to have been to enable the Council or the Assembly to turn to

the Court for an interpretation of the Covenant, which like

other constitutions was phrased in general terms that might

call on occasion for clarification. Subsequently it was felt

that the Court might assist the Council or the Assembly of the

League in their function of conciliation in the event that either

of the two bodies might have before it a dispute not submitted

by the contending parties to arbitration and involving danger

of war. Suppose the dispute thus brought before the Council

or the Assembly should contain questions of law as well as

political claims not covered by any of the accepted rules of
law. In such a case the Council or the Assembly might wish to

refer the legal question to the World Court for an advisory

opinion; and the Court in giving the advisory opinion would be

assisting in the settlement of the dispute by offering its expert

judgment upon those aspects of the case which it was a proper

function of courts to decide.

When the committee of jurists met in 1920 to prepare the
plan for the Court it included provisions for advisory opinions

in the draft statute; but these were stricken out by the Assem-

bly of the League at the time the Statute was finally accepted

by it, the ground for such action being that provisions of that

kind belonged properly in the rules of the Court, not in the

Constitution of the Court. In consequence when the judges
of the Court met after their election to frame their rules of

procedure, known as “Rules of the Court,” they included
(Articles 71-74) provisions for giving advisory opinions. The
amendments to the Statute of the Court, adopted in 1929 and

now pending ratification, propose to transfer to the Statute the



14 Arbitration and the World Court

essential parts of the revised rules of procedure with regard
to

advisory opinions and thus give greater permanence to the
con-

ditions under which this function of the Court must be exercised.

While this function of the World Court in rendering ad-

visory opinions to the Council or to the Assembly of the
League

of Nations is a new departure in international relations
there

are numerous precedents for it in the constitutional law
of indi-

vidual states of the United States. The Constitution of Massa-

chusetts, for example, has made provision since 1780 for ad-

visory opinions to be given by the Justices of the Supreme

Judicial Court “upon important questions of law and
upon

solemn occasion,” at the request of either branch of the
legis-

lature, or of the Governor and the Council.
.

A number of
opinions have been given in accordance with this provision

and

they stand on a different footing from decisions of the
Court

proper and do not have the force of precedent given to decisions

of the Court. On the other hand opinions given under the

Constitution of Colorado are not mere “opinions of the justices,

as in Massachusetts, but judgments of the Court itself,
and they

have all the force and effect of precedent attaching to decisions

of the Court.

In the case of the World Court an effort was made, as stated

in the words of Judge John Bassett Moore, “to assimilate
the

process as far as possible to a judicial proceeding , that
is, the

whole procedure of hearing the case, including the
appearance

of the contesting parties, the submission of evidence,
and the

publicity to be given to the case, is to follow as far as
possible

the procedure customary when a formal decision is being given

upon resort to the Court by the contesting parties themselves.

In the course of fourteen or more years the Council
has

upon a number of occasions requested the Court for advisory

opinions. In all cases but one they have been duly
rendered

and have materially contributed toward the settlement of
dis-

putes through the conciliation procedure of the Council.
Ad-

visory opinions have thus become an accepted function of
the

Court and they have proved their practical usefulness,
whatever

theoretical objections may be raised against this departure from

the strict judicial function of giving a final award between
two

contesting parties. In a letter of November 18, 1929, to Presi-

dent Hoover, Secretary of State Stimson referred to
the ad-

visory opinions of the Court as promising to play
“a most use-



Arbitration and the World Court 15

ful part” in the work of developing
international law; and he

pointed out that the past record of the
World Court had al-

ready given proof of what could be done
in that respect.

As of the date of January 1, 1936, the
Permanent Court of

International Justice had handed down twenty-three
decisions

or “judgments” and twenty-seven advisory
opinions. Looking

first at the judgments of the Court, two
may be selected as

typical of the way in which the Court functions
when cases are

referred to it by two or more contesting
parties. The case of

the Steamship Wimbledon, decided in 1923,
involved the inter-

pretation of Article 380 of the Treaty of
Versailles which pro-

vided that the Kiel Canal and its approaches
should be main-

tained “free and open to- the vessels of commerce
and war of all

nations at peace with Germany on terms of
entire equality.

In 1921 Germany, being the territorial
sovereign of the Lanai,

refused ’to permit the Wimbledon to use the
Canal on the

ground that the steamship was carrying arms to
Poland while

that state was at war with Russia, and that
the passage of the

vessel through the Canal would constitute a
violation of the

neutrality of Germany. In consequence of the
action taken by

Germany, Great Britain, France, Italy and Japan
asked the

Court for a judgment as to the rights of the
parties under the

treaty The Court held that Germany was under
an obligation

to keep the Kiel Canal open at all times
without making any

distinction between vessels of war and vessels of
commerce and

without taking account of the contraband
character of the

goods carried by the vessel, provided only that the
vessel must

belong to a nation at peace with Germany.

In the case of the Steamship Lotus, decided
in 1927, the

question before the Court was to determine whether
under the

general rules of international law a state had the
right to put

on trial the officer of a foreign vessel for an
offense alleged to

have been committed on the high seas. A collision had oc-

curred in the Aegean Sea between the French
mail steamer

Lotus and a Turkish collier, the Boz-Kourt, in which
the collier

was sunk with a loss of eight Turkish nationals.
When t e

Lotus reached Constantinople the officer of the
watch was ar-

rested and convicted in court and given a sentence of
imprison-

ment. The French government protested against this assump-

tion of jurisdiction over one of its nationals,
and the matter

was referred by agreement to the World Court. The Court
de-



16 Arbitration and the World Court

cided that there was no rule of international law to prevent

Turkey from exercising jusisdiction over the officer of the

French vessel when the latter had put in at a Turkish port, and

that the French claim of exclusive control over acts taking

place on board a French vessel on the high seas but having

their effects upon a Turkish vessel could not be sustained.

Of the important advisory opinions of the Court, an early

one involved a dispute between Great Britain and France over

certain “nationality decrees” issued by the French government

in regard to Tunis and Morocco over which countries France

held a protectorate. The effect of the decrees was to make

French citizens any persons born in the two countries of for-

eign parents one of whom was born there. This provision
brought the decrees into conflict with the British nationality

law, with the result that Great Britain objected to the applica-

tion of the decrees in such cases. France replied that national-

ity was a “domestic question” which each state had the right

to regulate for itself. The British government then appealed to

the Council of the League of Nations; but before the Council

could recommend a settlement of the dispute it had to decide

whether the dispute did relate to a domestic matter, since if

that were the case it could not make a recommendation. The

Council then asked the Court for an advisory opinion upon

the question whether the nationality decrees were a domestic

matter outside the jurisdiction of the Council. The Court re-

plied that in principle questions of nationality were domestic

questions, but that in the particular case the right of France to

issue the decrees was restricted by its treaties with Great Brit-

ain, so that the dispute in consequence took on an international

aspect, and the Council might properly make a recommenda-

tion.

A more recent advisory opinion of the Court has been the
subject of much discussion. In 1931, Austria entered into a

customs agreement with Germany as a way of relieving the

economic strain under which it had been since the close of the

World War. France objected to the customs-union on the

ground that it was in violation of the provisions of the Treaty

of Saint Germain and of the Geneva Protocol of 1922, which ob-

ligated Austria not to “compromise her independence.” The

Council of the League thereupon referred to the Court the

question whether the customs agreement between Austria and



Arbitration and the World Court 17

Germany would have the alleged effect and thus be in
violation

of the obligations of Austria assumed by the
treaties. A re-

quest was made by the Council that the matter be
treated as

urgent, with the result that within four months the
Court handed

down its opinion. By a vote of eight to seven the Court
held

that the proposed customs-union was not compatible
with the

obligations of Austria’s treaty of 1922, which specifically
pro-

vided that Austria should not “violate its
economic independ-

ence by granting to any state a special regime or
exclusive ad-

vantages calculated to threaten this independence.”
The minor-

ity of the Court rendered a dissenting opinion,
holding that

customs agreements in general did not constitute a
danger to

the independence of a state and that the special
regime set

up by Austria in this case did not violate her economic
inde-

pendence as forbidden by the Geneva Protocol. _
This advisory opinion of the Court has been much criticized

on the ground that the judges of the Court appeared
to be tak-

ing sides on a political question rather than deciding
upon the

strictly legal aspects of the case. While the criticism
is .not

without foundation, at the same time it must be
recognized

that cases will come up before any international court, no
matter

how constituted, in which the personal views of the judges
will

to some extent color their opinions. The Supreme Court of
the

United States has on various occasions in the course of its
long

history been accused of allowing the personal opinions
of its

members to influence their decisions, as in the decision of the

Court in the case of the income tax law of 1895. At the
same

time it frequently happens that national as well as
interna-

tional courts, seeking to give a strictly legal decision,
are made

to bear the blame for conditions which it is the proper
duty of

the legislature, or of the parties to a contract, to
change. Do-

mestic courts have frequently been called upon and have had

no other choice but to enforce contracts which appeared to
work

an injustice to one of the parties but which were within
the

law” until the legislature chose to take action to the
contrary.

VI—The United States and the Permanent Court of
International Justice

The question whether the United States should join with

other states in maintaining the Court and cooperating in its



18 Arbitration and the World Court

activities first became an active one in 1923 when, on Febru-

ary 17th, Secretary of State Hughes recommended to President

Harding that the United States adhere to the Protocol of Signa-

ture of December 16, 1920, by which the Court was created. In

his letter to the President, Secretary Hughes explained that

from its foundation the United States Government had “taken

a leading part in promoting the judicial settlement of inter-

national disputes.” While under the Statute of the Court the

United States was privileged to bring a case before the Court

as a suitor, said Mr. Hughes, this was not sufficient in view of

the great importance of the institution of an international court

invested “with a jurisdiction which conforms to American prin-

ciples and practice.” He found no insuperable obstacle in the
fact that the United States was not a member of the League of

Nations. Accordingly he proposed four “conditions and under-

standings” which were to be made part of the instrument of

adhesion. These were that the adhesion of the United States

should not be taken to involve any legal relation on the part of

the United States to the League of Nations; that the United

States should participate upon equal terms in the election of

the judges of the Court; that the United States should pay a

fair share of the expenses of the Court; and that the Statute of

the Court should not be amended without the consent of the

United States.

In accordance with the recommendation of Secretary

Hughes, President Harding, on February 24, 1923, asked the

consent of the Senate to the adhesion of the United States to

the Protocol. In was not, however, until December, 1925, that

the matter was actively taken up by the Senate, and then, after

a month’s discussion, the Senate, on January 27, 1926, adopted

a Resolution giving its advice and consent to the adhesion of

the United States to the Protocol (expressly excluding the Op-

tional Clause) subject to five reservations. The first four of

the reservations followed the “conditions” suggested by Secre-

tary Hughes in his letter of February 17, 1923, with an addi-

tion to the fourth condition to the effect that the United States

might at any time withdraw its adherence to the Protocol. The

fifth reservation of the Senate was destined to be the subject of

much controversy. It related to the function of the Court in

rendering advisory opinions; and it provided that all such opin-

ions should be rendered publicly and after due notice and pub-



Arbitration and the World Court 19

lie hearing or opportunity of
public hearing to any state con-

cerned This part of the reservation
was in accordance with

the procedure followed by the Court
and occasioned n° contr°-

versy The second part of the
reservation provided that the

Court should not, without the
consent of the United States

“entertain any request for an advisory
opinion touching any

dispute or question in which the United
States has or claims an

In view of these reservations a
conference of the signatories

of the Protocol was held at Geneva
in September, 1926 to con-

sider the effect of the reservations;
and in answer to the beliet

of a number of states represented
at the conference that the

second part of the fifth reservation
might prove to be an ob-

stacle to the advisory jurisdiction
of the Court a statement

was adopted, on September 23,
suggesting a way in which

the objection might be overcome.
This statement m the form

of a Final Act, was promptly submitted
to the United States,

but it was not until February 19, 1929,
that Secretary Kellogg

informed the Signatories of the Protocol
of the attitude of the

United States toward the Final Act There were,
said Secretary

Kellogg, “some elements of uncertainty’
7

in the proposals whic

seemed to require further discussion.

In reply to Secretary Kellogg’s
letter, the Council of the

League of Nations requested the
Committee on Amendments

to the Statute of the Court to make
suggestions with a view to

facilitating the accession of the United
States to the Pr°toco

“on conditions satisfactory to all the
interests concerned. On

March 18th, the Committee drew up a draft
protocol contain-

ing a plan, known as the “Root formula,”
by which an agree-

ment might be reached between the United
States and the sig-

natory states. This plan was acceptable to
President Hoover,

and the approval of the United States was
communicated to the

Secretary-General of the League of Nations on
September 4,

1929 In the meantime amendments had been
proposed to the

Statute of the Court with the object
of incorporating certain

of the conditions fixed by the United States
in 1926.

The legal situation resulting from this procedure
called lor

the adhesion of the United States to
three separate protocols:

the original Protocol of 1920, a new Protocol
for the revision

of the Statute, and a third Protocol
for the adhesion of the

United States covering the special conditions
upon which the



20 Arbitration and the World Court

United States was to be permitted to adhere.1 On December
9 , 1930, President Hoover instructed the American Charge
d ’Affaires at Bern to sign the protocols in the name of the
United States, and on the following day the President trans-
mitted the protocols to the Senate for its advice and consent
as the necessary preliminary to ratification. It was not, how-
ever, until June 1, 1932, that the Senate Committee on Foreign
Relations submitted a report to the Senate. This report re-

viewed the whole situation, examined in detail the “Root for-
mula,” and came to the conclusion that the difference between
the original Reservation V of the Senate Resolution of 1926
and the new Protocol embodying the Root formula was “so
slight, even though the Root construction (of the formula) be
rejected, as to approach the vanishing point.” “Whether the
question be viewed selfishly or altruistically,” said the Com-
mittee, “our Government ought to give to the Court the moral
support that would follow from association in maintaining it.”

In spite of the favorable report submitted by the Committee
on Foreign Relations no immediate action was taken. In the
same month, however, the platforms of both the Republican
and the Democratic parties carried provisions favoring support
of the Court by the United States; and the advocates of the
Court were led to the conclusion, with the sanction of pub-
lic opinion thus expressed, the advice and consent of the Senate
could now definitely be counted upon. Problems of domestic
politics made it seem advisable, however, to postpone considera-
tion of the matter; and it was not until the early months of 1934
that the Committee on Foreign Relations of the Senate again
held public hearings, the outcome of which was an announce-
ment that the matter would be placed on the Senate’s agenda
at the beginning of the session in 1935.

On January 10, 1935, the Committee on Foreign Relations
presented a favorable report, recommending the adoption of a
resolution reciting the three protocols submitted to the Senate

by President Hoover in 1930, and giving the advice and consent
of the Senate to them, without, however, accepting or agreeing

to the optional clause for compulsory jurisdiction of the Court
and with the “clear understanding” that the Court would not,
over an objection by the United States, “entertain any request
for an advisory opinion touching any dispute or question in

l See Appendix A.



Arbitration and the World Court 21

which the United States has or claims an interest.”
On Janu-

ary 16, President Roosevelt sent a
special message to the

Senate urging that it give its consent “in such form
as not to

defeat or to delay the objective of adherence.”
Debate con-

tinued for ten days, during which two additions were
made to

the pending resolution borrowed from the resolution
of 1926.

By the first the Senate reaffirmed the traditional policy of the

United States in not interfering with or entangling
itself in the

political questions of any foreign state, and renewed the state-

ment that adherence to the protocols should not be construed

to imply a relinquishment by the United States of its
traditional

attitude toward purely American questions. By the second ad-

dition the Senate made it clear that recourse to the Court for

the settlement of particular disputes could only be had by
agree-

ment of the parties to the dispute as expressed through
general

or special treaties concluded between them.
Assurance was

thus made doubly sure that there would be no “commitments,”

and that the United States would preserve full liberty of
action.

The resolution finally came to a vote on January 29, when

it was carried by a majority of only 52 to 36, seven less than

the two-thirds majority required. The vote was not along party

or sectional lines, and the repudiation of the party platforms
of

1932 must be explained by changes of public opinion in differ-

ent localities of the country and by the pressure brought to bear

upon senators who had previously favored the Court. Analysis

of the objections raised against the Court is somewhat difficult;

but it would appear that the chief objection was the connection

of the Court with the League of Nations, so that adherence
to

the Court might have the effect of being a “first step” into
the

League. Around this primary objection revolved a number of

others, such as the failure of certain European governments to

pay their war debts, the alleged tendency of the Court to
give

“political” decisions, as was said to be the case in the Austro-

German Customs Regime opinion, the failure of the several dis-

armament conferences, and in general the war clouds looming

upon the horizon of Europe and in the Far East. The Court

was denounced on the one hand as being a danger to the United

States, and on the other hand from the opposite approach as

being an ineffective agency for the settlement of disputes, hay-

ing no authoritative jurisdiction and no sanctions behind it.

Prominent among the forces which rallied opposition to the



22 Arbitration and the World Court

Court were the radio broadcasts of Father Coughlin and the

daily editorials of the Hearst newspapers. There would seem

to be little doubt but that the minority in the Senate which

under the two-thirds rule was sufficient to defeat the Court

had behind it a proportionate popular vote, if not a larger vote.

On the other hand the numerous organizations which had pre-
viously expressed themselves in favor of the Court, the bar

associations, the American Federation of Labor, the American

Chamber of Commerce, the National Grange, and other reli-

gious and civic groups were caught off their guard by the sud-

denness of the attack and were less vocal than the opposition

at the time the vote in the Senate was taken. There is under

our government no way of telling accurately the extent of pop-
ular support of or opposition to the Senate resolution or what

elements of public opinion either group represented. In a

representative government it must be assumed that legislators

reflect the sentiment of popular majorities, making due allow-

ance for the fact that the elements of public opinion that are

opposed to a given measure command the attention of a legis-
lator more than do the elements that favor it .

2

What conclusions can be drawn from the above statement of
facts to serve as a guide for the future policy of the United

States toward the Court? Is it possible, under the present state

of international relations, for the United States to cooperate

with the existing World Court upon conditions mutually ac-

ceptable to all the signatories of the Protocols, or must all

thought of such cooperation be abandoned for the time being?

As a practical matter it is simply out of the question to suggest

the creation of some new world court, even if the opponents of

the present Court were to undertake to specify in detail the

features of such a Court. On the one hand the nations which
are now associated with the Court are satisfied on the whole
with its record of some sixty judgments, orders and advisory

opinions; they are convinced by its record that the Court has

proved an impartial arbiter of the disputes and questions sub-

mitted to it; they find that it has been able to decide legal is-

sues without being influenced by political considerations be-

yond the degree to which judges of every court, national as

well as international, are influenced; they would regard it as

2 Since the above was written the Republican platform of 1936 has repudiated

adhesion to the World Court. No explanation was given of the change from the
former policy of the party.



Arbitration and the World Court

by the association of the United States
wun me ^ulul lu ut,

they do not care to assume them lest
undesirable inferences

Kb rlnwn from them. So deep is their present distrust

Secretaries of State have been able to influence
their judgment

in the matter.

VIX The Relation Between Peace and Justice

What then remains to be done by those who
believe that

such an attitude is an unreasoning one
and betrays the same

narrow nationalism which Americans are
ready to criticize in

foreign nations? The problem is clearly an
educational one,

proceeding upon the assumption that the
opposition to the

Court will yield to a fair and impartial
presentation of the tacts

concerning it. What are the steps in such an
educational pro-

gram? In the first place it must be
emphasized that all pro-

posals for arbitration and judicial settlement
must be judged

not on their merits in the abstract but
as alternatives to the

anarchy of war. Just as the individual
accepts restraints upon

his personal conduct because of the
necessity of maintaining

public law and order, so the nations must
accept restraints be-

cause of the same necessity. If each nation
is to insist upon

being the judge in its own case and refuses to
accept any inter-

mediation on the part of the community of
nations at large,

then there would seem to be no hope of
ending the anarchy

which leads to war. In this connection it
must be stressed that

it is the consistent teaching of
Catholic theologians that the

same principles of morality which are binding
upon individuals

are binding upon the state of which they are
citizens

;
and it is



24 Arbitration and the World Court

only a question as to how those principles may be applied under
the circumstances.

Secondly, it must be constantly borne in mind that if the
ideal of the peaceful settlement of international disputes is to

be attained some positive measures must be adopted to attain
it. It is undoubtedly true that if human nature everywhere
would conform to the precepts of Christian morality there
would be no more war, and too great emphasis cannot be placed
upon the necessity of higher standards of moral conduct on the
part of citizens and nations alike. At the same time Catholic
theologians have always gone on to point out that in the world

as it exists, it is imperative that principles of moral conduct

should be embodied in definite institutions or forms of organi-
zation by which the community at large may protect itself
against the wilfulness of an individual who may on occasion
insist upon being the judge in his own case and act in conflict
with the standards of the community. For that purpose we
have courts of law within the state, by which the judgment of
the commuity may be given effect as against the arbitrary will
of the individual. In like manner between nations there is need
of definite institutions which will give form and effect to the
principles of moral conduct obligatory upon them. If arbitra-
tion and judicial settlement are, when other means have failed,
the necessary alternatives to war, then arbitration and judicial
settlement must be embodied in institutions which will make
them practical forms of procedure in the daily life of the na-
tions. The choice between one or other of the two forms of
procedure is more a question of effectiveness than of moral
principle. It was the United States which in 1907, at the Sec-
ond Hague Conference, urged upon the nations that the various
tribunals of arbitration which had met on occasion to decide
the disputes of states might be supplemented by a more perma-
nent body of judges, holding office over long terms and pos-
sessed, as Secretary Root expressed it, of a sense of judicial
responsibility. Such a court, it was urged by the delegates of
the United States, would give continuity to the procedure of
arbitration and would permit the development of international
law by the slow growth of judicial precedent which character-
izes the development of national law.

Can the objection offered to the adherence of the United
States to the existing Permanent Court of International Justice



Arbitration and the World Court 25

on the ground that it is tied up with the political system of

Europe be overcome? There is no question but that it may be
overcome from the point of view of any legal “commitments.”

The reservations adopted by the Senate met fully all possible

objections on that score. What of the indirect dangers of “en-
tanglements” resulting from the mere association of the United

States with other nations in a cooperative effort to reduce the

dangers of war? Here the objection to the adherence of the

United States to the Court becomes so intangible that it is diffi-

cult to find ways of meeting it. But although intangible it is

none the less real; for there exists a very definite complex in

the United States against any forms of cooperation that go be-

yond the mere social interests of international life. That com-

plex can apparently only be broken by continued emphasis

upon the dangers of international anarchy and the necessity of

finding practical ways of meeting the danger, and upon the

consequent duty of American citizens to make sure that their
criticism of existing institutions is accompanied by constructive
proposals for meeting the danger. We must not shirk our obli-
gations by retiring within our national boundaries and washing
our hands of any responsibility for a problem which is essen-

tially a world problem, to be solved, if at all, by the common
cooperation of the whole community of nations.

Finally it must be the object of education to point out that
the adhesion of the United States to the World Court would
not, in itself, go far toward meeting the present situation. In

view of the limited jurisdiction of the Court and of the un-
willingness of other nations as well as the United States to turn

over to the Court the settlement of the more serious conflicts
of policy which give rise to war, the adherence of the United
States to the Court would be, in respect to the crisis that now
confronts the nations, little more than a symbol. The symbol
would, indeed, be of great value, as expressing the desire of the

United States to cooperate for the promotion of peace in one
significant way. But it is important to emphasize that the set-
tlement of disputes between states by international courts must
be accompanied by what may be called “legislative” action to
remove the causes of war. The serious conflicts between na-
tions, out of which war is likely to arise, are due in large part
to economic and political maladjustments which create condi-
tions of national resentment beyond the capacity of any inter-



26 Arbitration and the
World Court

national court to handle. The political
maladjustments bear

upon the presence in one state of
minorities which desire to be

united with another state by transfer
of territory rather than

by emigration. It may, indeed, be
beyond human ingenuity

to devise boundary lines which will
satisfy both parties to the

controversy; and it may, in consequence,
be necessary to mini-

mize the effect of boundary lines by
the establishment of neu-

tral zones within which the boundary
line does not operate as a

barrier to social and economic intercourse.
The economic mal-

adjustments bear upon the policy of each
nation in seeking o

promote its own material welfare without
regard for the effect

of its measures upon the welfare of
other states. This eco-

nomic nationalism,” which has grown
greatly in strength of re-

cent years, must be modified if there is
to be any hope of perma-

nent peace between the nations.
Monopolistic control of the

raw materials of industry, ruthless
competition for foreign

markets, the exploitation of colonies
and dependencies, dis-

criminatory tariffs which go beyond the
protection of national

labor standards, the manipulation
of currencies without con-

sideration of the injury inflicted
upon other countries these

are some of the manifestations of economic
nationalism ; and it

would seem to be obvious that if the
nations really desire to

avoid the disastrous consequences of
war they must make some

sacrifices for peace and must find a way of
regulating economic

competition which will promote the general
welfare of the com-

munity of nations. Such a regulation
of international trade

would, indeed, in the belief of many economists,
do more to pro-

mote the welfare of the individual state
than the more imme-

diate concentration upon its own national
interests. n any

event, however, it is the alternative
to international anarchy,

and must therefore be advocated with
that object in view.

The moral principles underlying international
cooperation

have been made the subject of a number of
encyclica s which

have been dealt with in other publications
of the Catholic Asso-

ciation for International Peace, so
that it is unnecessary to en-

ter upon them in a study, which has been
confined to the legal

aspects of arbitration and judicial settlement.
One point, how-

ever, deserves attention. The correlation
between peace and

justice, to which attention has been
called above, is s^kingy

expressed in the encyclical of Pope Benedict
XV in 1920, 0

International Reconciliation. Here the Holy
Father, witnessing



Arbitration and the World Court 27

the effort made at the close of the World War to establish a co-
operative system of international security, gave to the plan his

formal approval, subject only to the condition that it should be

based upon justice and charity. “It would be truly desirable,”

said the Pope, “that all states should put aside mutual suspi-

cion and unite in one single society or rather family of peoples,

both to guarantee their own independence and to safeguard
order in the political relations of states. . . . Once this league
among the nations is founded on the Christian law in all that
regards justice and charity, the Church will surely not refuse it

valid aid.” The same principles are reiterated in the Pastoral
Letter of the American Hierarchy of February, 1920, where,

after emphasizing the necessity of the organization of inter-

national peace, it is pointed out that a nation is not only not

dispensed by reason of its superior civilization and industrial
progress from the obligation to assist other states, but is “under

a greater responsibility to exert its influence for the maintenance

of justice and the diffusion of goodwill among all peoples.” The
letter goes on to quote a letter of Pope Benedict XV to the
American people on December 31, 1918, in which the Holy
Father expressed his hope and desire for an international or-
ganization “which by abolishing conscription will reduce arma-
ments, by establishing international tribunals will eliminate or
settle disputes, and by placing peace on a solid foundation will
guarantee to all independence and equality of rights.”

TheSe are strong statements of the urgent necessity of find-
ing ways and means of international cooperation. In view of
them it would seem difficult to escape the conclusion that there
is a strong presumption in favor of the duty of the United

States to cooperate with existing international institutions which
the great majority of other nations have found to be of practical
value; and, moreover, that criticism of such institutions, while

always in order, should not be purely destructive, but should be
accompanied by constructive substitutes for the institution criti-
cized. Much of the recent criticism of the World Court has
gone so far as to repudiate the principles upon which any other
practicable court must rest

;
and it has thus closed the door not

only to amendments of the existing Court but to the establish-
ment of any court at all. Experience would seem to indicate
that, in matters where common action is essential, the path of
progress lies in the improvement of an institution that is al-



28 Arbitration and the World Court

ready working rather than in a negative policy of
abstention

and isolation. The words of Washington, in a letter written in

1787 to Patrick Henry at the time the Constitution of the

United States had been drawn up by the Philadelphia Conven-

tion and was awaiting ratification, may be appropriately re-

called: “I wish the Constitution, which is offered, had been

more perfect; but I sincerely believe it is the best that
could

be obtained at this time. And, as a constitutional door
is opened

for amendments hereafter, the adoption of.it, under the present

circumstances of the Union, is in my opinion desirable. This

was not a very enthusiastic endorsement of a document
which

has since come to be our national pride; but it demonstrates

better than enthusiasm the statesmanship of a wise
and pru-

dent man. No one will question that the world today needs the

cooperation of the United States to help promote peace. If
that

cooperation can be given under the safeguards of the
recent

Senate resolution it should not be refused from indifference
to

the welfare of the great community of nations of which
the

United States is a member.

“Postscript” to Report on World Court

While the substance of this report was approved on the
whole

by the members of the Committee on International Law and

Organization and of the Executive Committee, there were
a

number of dissenting opinions which must be recorded.
One

member felt that while the study put very effectively the case

for adherence to the World Court by the United States,
it did

not treat so understanding^ what was admitted to be
the pres-

ent conviction of the American people against joining
the Court.

The report, he observed, pointed out that the jurisdiction of
the

Court was limited and that there was need of “legislative”
ac-

tion to remove the causes of war, which meant, that
adhering

to the Court without joining the League of Nations
would not

be a matter of much importance; and since the American
peo-

ple did not want to join the League the mere joining
the Court

might be looked upon as “a futility and probably a source
of em-

barrassment.” Another member, while approving of the
report

as a clear statement of the moral necessity of
states to use

whatever tribunal of arbitration was available to
prevent dis-

aster and war, thought that the last few pages of
the report



Arbitration and the World Court 29

were spoiled by the appearance of argument designed seeming-
ly to link the League with any such tribunal of peace; and
again another member felt that the report seemed to give at
least some substance to the objection that joining the Court
would be the first step toward joining the League, and that the
last few pages seemed to get somewhat beyond the specific sub-
ject and into the whole side-field of international cooperation.
A fourth member dissented to the extent of not seeing the value
of the report at all. It did not discuss what was really the in-
terest of the American people, and that was the controversial
criticism of the Court and the fact that so many nations should
be willing to take the United States into the Court on its own
terms. The argument coming from the Catholic Association
for International Peace was thought to be premature until the
Association was more definite in its criticism of legal philoso-
phies and the content of the concept “Justice.”

March 1, 1936.



1 .

2 .

3.

4.

5.

26

26

32

32

33

APPENDIX A

Documents Relating to the World Court

Protocol of Signature, December 16, 1920 L*

The Statute ofthe Court

Resolution of the United States Senate,
January 27, 1926^ -----

Protocol of the Adhesion of the United
States, September

1929 —— """
1. Protocol of Signature, Opened

for Signature at Geneva,

December 16, 1920

The Members of the League of Nations,
through the

duly authorized, declare their acceptance
of the adjoined Statute of

the

Permanent Court of International Justice,
which was amoved byj

unanimous vote of the Assembly of the
League on the 13th Decern ,

1 ^2

Consequently , they hereby declare
that they accept the jurisdiction

of the Court in accordance with the
terms and subject to the conditions

of the above-mentioned Statute. . , -Ah
The present Protocol, which has been

drawn up in accordance wit

the decision taken by the Assembly of the
League of Nations on the

13th December, 1920, is subject to
ratification. Each power shall sen

its raSSon ’to the Secretiry-General of the League
of Nations; h

latter shall take the necessary steps to
notify such ratification to the

Xe“ 3S».o? Pow«„. The rotation shell be
deposed the

archives of the Secretariat of the
League of Nations

Members
The said Protocol shall remain open for

signature by the Me

of the League of Nations and by the
States mentioned in the Annex to

.hell come into (etce .. provided i«
the

ab0
Executed°at

d
Geneva, in a single copy, the French

and English teats

of which shall both be authentic.

December 16, 1920.

[Here follow the signatures of 55
states,]

2 Statute of the Permanent Court
of International Justict, An-

nexed to the Protocol of Signature of
December 16, 1920

Art. 1. A Permanent Court of International Justice
ishereby estab-

lished in accordance with Article 14
of the Covenant of the League of

Nations This Court shall be in
addition to the Court of Arbitration

organized by the Conventions of The Hague of
1899 and 1907, and to

the special Tribunals of Arbitration
to which states are always

liberty to submit their disputes for
settlement.

i The articles eliminated deal with relatively
minor details.



Arbitration and the World Court 31

Chapter I

Organization of the Court

Art. 2. The Permanent Court of International Justice shall be com-

posed of a body of independent judges, elected regardless of their

nationality from among persons of high moral character, who possess

the qualifications required in their respective countries
for appoint-

ment to the highest judicial offices, or are jurisconsults of recognized

competence in international law.

Art. 3. The Court shall consist of fifteen members: eleven judges

and four deputy-judges. The number of judges and deputy-judges

may hereafter be increased by the Assembly, upon the proposal of the

Council of the League of Nations, to a total of fifteen judges and six

deputy-judges.
“
Art. 4. The members of the Court shall be elected by the Assembly

and by the Council from a list of persons nominated by the national

groups in the Court of Arbitration, in accordance with the following

provisions.

In the case of Members of the League of Nations not represented

in the Permanent Court of Arbitration, the lists of candidates shall be

drawn up by national groups appointed for this purpose by their Gov-

ernments under the same conditions as those prescribed for members of

the Permanent Court of Arbitration by Article 44 of the Convention

of The Hague of 1907 for the pacific settlement of international disputes.

Art. 5. At least three months before the date of the election,, the

Secretary-General of the League of Nations shall address a written

request to the Members of the Court of Arbitration belonging to the

states mentioned in the Annex to the Covenant or to the states which

join the League subsequently, and to the persons appointed under

paragraph 2 of Article 4, inviting them to undertake, within a given time,

by national groups, the nomination of persons in a position to accept

the duties of a member of the Court.
No group may nominate more than four persons, not more than

two of whom shall be of their own nationality. In no case must the
number of candidates nominated be more than double the number of

seats to be filled.

Art. 6. Before making these nominations, each national group is

recommended to consult its Highest Court of Justice, its Legal Facul-

ties and Schools of Law, and its National Academies and national
sections of International Academies devoted to the study of Law.

Art. 7. The Secretary-General of the League of Nations shall pre-
pare a list in alphabetical order of all the persons thus nominated. . . .

The Secretary-General shall submit this list to the Assembly and to
the Council.

Art. 8. The Assembly and the Council shall proceed independently
of one another to elect, firstly the judges, then the deputy-judges.

Art. 9. At every election, the electors shall bear in mind that not
only should all the persons appointed as members of the Court possess
the qualifications required, but the whole body also should represent



32 Arbitration and the World
Court

the main forms of civilization and the
principal legal systems of the

W
°Art 10 Those candidates who obtain an absolute

majority of votes

in the Assembly and in the Council shall be
considered as elected.

In the event of more than one national of
the same Member of the

League being elected by the votes of both the
Assembly and the Coun-

cil the eldest of these only shall be
considered as elected ...

’Art. 13. The members of the Court shall be
elected for nine years.

They may be reelected. ,
They shall continue to discharge their duties

until their P^ces have

been filled. Though replaced, they shall
finish any cases which they

ma
A.RT

aV
14 Vacancies which may occur shall be filled

by the same

method as that laid down for the first election.
A member oL the Court

elected to replace a member whose period of
appointment had not ex

pired will hold the appointment for the
remainder of his predecessor s

161

Art 16 The ordinary members of the Court
may not exercise any

political or administrative function.
This porvisjon does not apply to

the deputy-judges except when performing their
duties on the Court.

Any doubt on this point is settled by the decision
of the Court.

Art 17 No member of the Court can act as agent,
counsel or advo-

cate in any case of an international
nature. This provision only ap-

plies to the deputy-judges as regards cases
in which they are called upon

to exercise their functions on the Court. _ . . , . . .

No member may participate in the decision of any
case in which h

has previously taken an active part, as
agent, counsel or advocate fo

one of the contesting parties, or as a
member of a national or inter-

national court, or of a commission of
inquiry, or in any other capacity.

Any doubt on this point is settled by the decision
of the Court.

Art 18. A member of the Court can not be dismissed
unless in the

unanimous opinion of the other members, he has
ceased to fulfil the re-

^VrtV”^ The members of the Court, when engaged on the business
of the Court, shall enjoy diplomatic

privileges and immunities

Art. 20. Every member of the Court shall, before
taking up his

ties, make a solemn declaration in open Court
that he will exercise his

powers impartially and conscientiously. . , . fP
Art. 21 The Court shall elect its President

and Vice-President for

three years; they may be reelected.
It shall appoint its Registrar. ... _ , .
Art. 22. The seat of the Court shall be established

at The Hague. . . .

Art. 23. A session of the Court shall be held every
year.

Unless otherwise provided by Rules of Court
this session shall begin

on the 15th of June, and shall continue for
so long as may be deemed

necessary to finish the cases on the list. _ ,
The President may summon an extraordinary

session of the Court

whenever necessary. , . pnlirf rnn
Art. 24. If, for some special reason, a

member of the Court con-

siders that he should not take part in
the decision of a particular case,

he shall so inform the President. . . .



Arbitration and the World Court 33

Art. 25. The full Court shall sit except when it is expressly provided

otherwise.

If eleven judges can not be present, the number shall be made up by

calling on deputy-judges to sit.
< .

If, however, eleven judges are not available, a quorum of nine judges

shall suffice to constitute the Court. . . .

Art. 29. With a view to the speedy dispatch of business, the Court

shall form annually a chamber composed of three judges who, at the

request of the contesting parties, may hear and determine cases by sum-
mary procedure.

Art. 30. The Court shall frame rules for regulating its procedure.

In particular, it shall lay down rules for summary procedure.
Art. 31. Judges of the nationality of each contesting party shall re-

tain their right to sit in the case before the Court.

If the Court includes upon the Bench a judge of the nationality of

one of the parties only, the other party may select from among the
deputy-judges a judge of its nationality, if there be one. If there should

not be one, the party may choose a judge, preferably from among those
persons who have been nominated as candidates as provided in Articles

4 and 5.
If the Court includes upon the Bench no judge of the nationality of

the contesting parties, each of these may proceed to select or choose a
judge as provided in the preceding paragraph. . . .

Art. 32. The judges shall receive an annual indemnity to be deter-

mined by the Assembly of the League of Nations upon the proposal of the

Council. This indemnity must not be decreased during the period of a

judge’s appointment. . . .

Art. 33. The expenses of the Court shall be borne by the League of

Nations, in such a manner as shall be decided by the Assembly upon

the proposal of the Council.

Chapter II

Competence of the Court

Art. 34. Only states or Members of the League of Nations can be
parties in cases before the Court.

Art. 35. The Court shall be open to the Members of the League and
also to states mentioned in the Annex to the Covenant..

The conditions under which the Court shall be open to other states
shall, subject to the special provisions contained in treaties in force,

be laid down by the Council, but in no case shall such provisions place
the parties in a position of inequality before the Court.

When a state which is not a Member of the League of Nations is
a party to a dispute, the Court will fix the amount which that party is
to contribute toward the expenses of the Court.

Art. 36. The jurisdiction of the Court comprises all cases which the
parties refer to it and all matters specially provided for in treaties and
conventions in force.



24 Arbitration and
the World Court

The Members of the League of Nations
and the states mentioned in

the Ann^To the Covenant may, either
when signing or ratifying the

Protocol to which the present Statute
is adjoined, or at a later >

declare that they recognize as
compulsory ipso facto and without

special

agreement in relation to any other
Member or state accepting the same

obligMion, the jurisdiction of the
Court in all or any of the classes

of

legal disputes concerning:

(a) The interpretation of a treaty;

S cfT(«ste.blish,d, would consti-
$£ »'b« -ad. for

.he

breach of an international obligation.

The declaration referred to above may be
made unconditionally or

on londitn ol reciprocity on the
part of several or certain

Members

°r Ke^t to whether the Court has jurisdiction,
the matter shall be settled by the

decision of the Court.

Art 37 When a treaty or convention in force
provides for the reier-

encfof'a matter to a tribunal to be
instituted by the League of Nations,

the Court will be such tribunal.

Art. 38. The Court shall apply:

1 International conventions,
whether general or particular, estab-

lishing rules expressly recognized
by the contesting states,

2. International custom, as
evidence of a general practice accepted

qq In tit • #

3 The general principles of law
recognized by civilized nations;

4 Subject to the provisions
of Article Sb judicial decisions

and

the teachings of the most highly
qualified publicists of the

various nations, as subsidiary
means for the determination of

rules of law.

This provision shall not prejudice
the power of the Court to decide a

case ex aequo et born, if the
parties agree thereto.

Chapter III

Procedure

Art. 39. The official languages of the Court
shall be French and

English. If the parties agree that the
case shalL be conducted in French,

the judgment will be delivered in French.
If the parties agree tha

the case shall be conducted in English,
the judgment will be delivered in

En
ART 40.' Cases are brought before the Court,

as the case may be,

either by the notification of the special
agreement, or by a written

application addressed to the Registrar.
In either case the subject of

the dispute and the contesting parties
must be indicated

The Registrar shall forthwith communicate
the application to all

concerned.



Arbitration and the World Court 35

He shall also notify the Members of the League of
Nations through

the

ART
r

tl^
y
The^ourt shall have the power to indicate, if it

considers

that circumstances so require, any provisional
measures which ought to

be taken to reserve the respective rights
of either party. .

Pending the final decision, notice of the
measures suggested shall

forthwith be given to the parties and the Council.

Art. 42. The parties shall be represented by agents.

They may have the assistance of counsel or advocates
before the

Art. 46. The hearing in Court shall be public,
unless the C°urt

decide otherwise, or unless the parties
demand that the public be not

ad
tRT

d
50.

’

The Court may, at any time, intrust any individual,
body,

bureau, commission or other organization that
it may select, with the

task of carrying out an inquiry or giving an
expert opinion. ...

Art S3 Whenever one of the parties shall not
appear before the

Court, or shall fail to defend his case, the
other party may call upon

the Court to decide in favor of his claim. w
The Court must, before doing so, satisfy itself, not

only that it has

jurisdiction in. accordance with Articles 36 and 37, but
also that the claim

is well founded in fact and law. , , nA
Art. 54. When, subject to the control of the Court,

the agents, ad-

vocates and counsel have completed their presentation
of the case, the

President shall declare the hearing closed.

The Court shall withdraw to consider the judgment.

The deliberations of the Court shall take place in
private and remain

secret

Art. 55. All questions shall be decided by a majority
of the judges

present at the hearing. . . , , , «
In the event of an equality of votes, the President

or his deputy shall

have a casting vote. A
Art 56 The judgment shall state the reasons on which it is

based.

It shall contain the names of the judges who have taken part
in the

decision. . . . . , ,,

Art. 57. If the judgment does not represent in whole or
in part tne

unanimous opinion of the judges, dissenting judges are
entitled to de-

liver a separate opinion. ... , . .,
Art. 59. The decision of the Court has no binding force except

be-

tween the parties and in respect of that particular case.

Art. 60 . The judgment is final and without appeal. In the
event ot

dispute as to the meaning or scope of the judgment, the
Court shall

construe it upon the request of any party.

Art. 61. An application for revision of a judgment can be made only

when it is based upon the discovery of some fact of such a nature
as to

be a decisive factor, which fact was, when the judgment
was given,

unknown to the Court and also to the party claiming revision, always

provided that such ignorance was not due to negligence. . . .

Art. 62. Should a state consider that it has an interest of a
legal

nature which may be affected by the decision in the case, it may sub-

mit a request to the Court to be permitted to intervene as a
third party.



36 Arbitration and the World Court

It will be for the Court to decide upon this request.

Art. 63. Whenever the construction of a convention to which states

other than those concerned in the case are parties is in
question, the

Registrar shall notify all such states forthwith.

Every state so notified has the right to intervene in the proceedings;

but if it uses this right, the construction given by the judgment will be

equally binding upon it.
Art. 64. Unless otherwise decided by the Court, each party shall

bear its own costs.

3. Optional Clause and Declarations oe Acceptance

The undersigned, being duly authorized thereto, further declare, on

behalf of their Government, that, from this date, they accept as com-

pulsory ipso facto and without special Convention, the jurisdiction of

the Court in conformity with Article 36, paragraph 2, of the Statute of
the

Court, under the following conditions:

[Here follow signatures, with declarations of conditions applying to

each Member signing.]

4. Senate Resolution of January 27, 1926, Giving Advice and

Consent to the Adhesion by the United States to the

Protocol of December 16, 1920, with Reservations

Whereas the President, under date of February 24, 1923, transmitted

a message to the Senate, accompanied by a letter from the Secretary

of State, dated February 17, 1923, asking the favorable advice and

consent of the Senate to the adherence on the part of the United States

to the Protocol of December 16, 1920, of Signature of the Statute for

the Permanent Court of International Justice, set out in the said

message of the President (without accepting or agreeing to the optional

clause for compulsory jurisdiction contained therein) , upon the con-

ditions and understandings hereafter stated, to be made a part of the

instrument of adherence: Therefore, be it

Resolved ( tfwo-thirds of the Senators present concurring),
That the

Senate advise and consent to the adherence on the part of the United

States to the said Protocol of December 16, 1920, and the adjoined

Statute for the Permanent Court of International Justice (without

accepting or agreeing to the optional clause for compulsory jurisdiction

contained in said Statute), and that the signature of the United States

be affixed to the said Protocol, subject to the following reservations and

understandings, which are hereby made a part and condition of this

resolution, namely:
1. That such adherence shall not be taken to involve any legal re-

lation on the part of the United States to the League of Nations or the

assumption of any obligations by the United States under the treaty of

Versailles

2. That the United States shall be permitted to participate through

representatives designated for the purpose and upon an equality with

the other states, Members, respectively, of the Council and Assembly

of the League of Nations, in any and all proceedings of either the Coun-



Arbitration and the World Court 37

cil or the Assembly for the election of judges or deputy-judges of the

Permanent Court of International Justice or for the filling of vacancies.

3. That the United States will pay a fair share of the expenses of the

Court as determined and appropriated from time to time by the Con-

gress of the United States.

4. That the United States may at any time withdraw its adherence
to the said Protocol and that the Statute for the Permanent Court

of International Justice adjoined to the Protocol shall not be amended

without the consent of the United States.

5. That the Court shall not render any advisory opinion except

publicly after due notice to all states adhering to the Court and to all

interested states and after public hearing or opportunity for hearing

given to any state concerned; nor shall it, without the consent of the

United States, entertain any request for an advisory opinion touching

any dispute or question in which the United States has or claims an

interest.

The signature of the United States to the said Protocol shall not be

affixed until the powers signatory to such Protocol shall have indi-

cated, through an exchange of notes, their acceptance of the foregoing

reservations and understandings as a part and a condition of adherence

by the United States to the said Protocol.
Resolved, further, As a part of this act of ratification that the United

States approve the Protocol and Statute hereinabove mentioned, with

the understanding that recourse to the Permanent Court of Inter-

national Justice for the settlement of differences between the United

States and any other state or states can be had only by agreement

thereto through general or special treaties concluded between the parties

in dispute; and
Resolved, further, That adherence to the said Protocol and Statute

hereby approved shall not be so construed as to require the United

States to depart from its traditional policy of not intruding upon, inter-

fering with, or entangling itself in the political questions of policy or

internal administration of any foreign state; nor shall adherence to the

said Protocol and Statute be construed to imply a relinquishment by
the United States of its traditional attitude toward purely American
questions.

5. Protocol for the Adhesion of the United States to the Protocol

of Signature of December 16, 1920. Opened for Signature

at Geneva,, September 14, 1929

(Not in Force, February 1, 1936)

The states signatories of the Protocol of Signature of the Statute of
the Permanent Court of International Justice, dated December 16, 1920,
and the United States of America, through the undersigned duly au-
thorized representatives, have mutually agreed upon the following pro-
visions regarding the adherence of the United States of America to the
said Protocol subject to the five reservations formulated by the United
States in the resolution adopted by the Senate on January 27, 1926.



38 Arbitration and
the World Court

Art 1 The states signatories of the said
Protocol accept the special

conSn. attached by the Cited States in the f‘ f
tioned above to its adherence to the

said Protocol upon the terms and

conditions set out in the following articles. . . J ,

Art 2 The United States shall be admitted
to participate, through

representatives designated for the
purpose and upon an equality wig

the signatory states Members of the
League of Nations represented in

[he Council or in the Assembly, in
any and all proceedings of either the

Council or the Assembly for the election
of judges or deputy-l^s of

the Permanent Court of International
Justice, provided for in the

Statute of the Court. The vote of the
United States shall be counted

in determining the absolute majority
of votes required by the Statute

Art. 3. No amendment of the Statute of
the Court may be made

without the consent of all the contracting
states.

Art 4 The Court shall render advisory
opinions in public session

after notice and opportunity for hearing
substantially as provided in the

now existing Articles 73 and 74 of the Rules of
Court

Art S With a view to ensuring that the
Court shall not, with

out the consent of the United
States, entertain any request for an

advisory opinion touching any dispute or
question in which the United

States has or claims an interest, the
Secretary-General of the League of

Nations shall, through any channel
designated for that purpose by the

United States, inform the United States
of any proposal before the

Council or the Assembly of the League
for obtaining an advisory

opinion from the Court, and thereupon, if
desired, an exchange of views

as to whether an interest of the United
States is affected shall proceed

with all convenient speed between the
Council or Assembly of the League

alld

Whenever
6

a request for an advisory opinion comes
to the Court, the

Registrar shall notify the United States
thereof, among other states

mentioned in the now" existing Article 73 of
the Rules of Court stating a

reasonable time limit fixed by the President
within which a written

statement by the United States concerning
the request will be received.

If for any reason no sufficient
opportunity for an exchange of views

upon such request should have been
afforded and the United States

advises the Court that the question
upon which the opinion of the

Court is asked is one that affects the
interests of the United States,

proceedings shall be stayed for a period
sufficient to enable such an

exchange of views between the Council or the
Assembly and the United

States to take place. . . . . ,, ~ . . o _„
With regard to requesting an advisory opinion

of the Court in y

case covered by the preceding paragraphs,
there shall be attributed

to an objection of the United States
the same force and effect as attaches

to a vote against asking for the
opinion given by a Member of the

League of Nations in the Council or in the
Assembly.

If, after the exchange of views provided
for in paragraphs 1 and 2 of

this article, it shall appear that no
agreement can be reached and the

United States is not prepared to forego
its objection, the exercise: o

the powers of withdrawal provided for m Article 8 hereof will follow natu-
rally without any imputation of unfriendliness

or unwillingness to co-

operate generally for peace and good will.



Arbitration and the World Court 39

^4rt. 6. Subject to the provisions of Article 8
below, the provisions of

the present Protocol shall have the same force
and effect as the Pro-

visions of the Statute of the Court and any
future signature of the

Protocol of December 16, 1920, shall be deemed to
be an acceptance

of the provisions of the present Protocol. , . . , „
Art. 7. The present Protocol shall be ratified.

Each state shall

forward the instrument of ratification to the
Secretary-General of the

League of Nations, who shall inform all the other
signatory states.

The instruments of ratification shall be deposited in
the archives of the

Secretariat of the League of Nations. .. . .
The present Protocol shall come into force as soon as

all states

which have ratified the Protocol of December 16, 1920,
and also the

United States, have deposited their ratifications.

Art 8 The United States may at an time notify the Secretary-

General* of the League of Nations that it withdraws its
adherence to the

Protocol of December 16, 1920. The Secretary-General shall
immedi-

ately communicate this notification to all the other states
signatories of

the Protocol. _ . , ,

In such case, the present Protocol shall cease to be
in force as from

the receipt by the Secretary-General of the notification by
the United

On their part, each of the other contracting states may at any time

notify the Secretary-General of the League of Nations that it
desires

to withdraw its acceptance of the special conditions attached
by the

United States to its adherence to the Protocol of December 16,
1920.

The Secretary-General shall immediately give communication of
this

notification to each of the states signatories of the present
Protocol

The present Protocol shall be considered as ceasing to be in force
if

and when, within one year from the date of receipt of the said
noti-

fication, not less than two-thirds of the contracting states other
than

the United States shall have notified the Secretary-General of the
League

of Nations that they desire to withdraw the above-mentioned acceptance.

Done at Geneva, the fourteenth day of September, nineteen hun-

dred and twenty-nine, in a single copy, of which the French and English

texts shall both be authoritative.

[Here follow signatures of 54. states,]

APPENDIX B

N. C. W. C. STUDY CLUB OUTLINE
ON

ARBITRATION AND THE WORLD COURT
Lesson I

The Supreme Court of the United States as an example of a court

for the settlement of disputes between nations. (Text—Section I.)
Topics for Discussion

1. Jurisdiction of the Supreme Court: controversies between states

of the American Union. Right of the aggrieved party to bring suit



40 Arbitration and the World Court

without consent of the other party; no question of
sovereign rights giving

exemption from suit.
. , . . , ,

2. Varied legal character of the questions
involved in suits between

States of the American Union: boundary suits
(Rhode Island v. Massa-

chusetts, 1846); nuisance suits (Missouri v.
Illinois, 1906) ; suits to

collect debts (Virginia v. West Virginia, 1911) ; water
rights (Wyoming v.

Colorado, 1922; Connecticut v. Massachusetts, 1931).

3. Composition of the Supreme Court: membership
not determined

bv fact that the judge is a citizen of a particular
State of the Union,

judges represent the United States, not the
particular States of which

they happened to be citizens at the time of their
appointment.

Papers

1 Inadequate character of the method of arbitration
provided for in

the Articles of Confederation, 1781-1789, for
the settlement of disputes

between States. (John Fiske, The Critical Period.) ~
2. Principles of law applied in the settlement by the

Supreme Court

of controversies between States of the Union. (C. G.
Fenwick, Inter-

national Law, 1934, under table of judicial decisions, p,
xlm.)

3. Effectiveness of decisions rendered by the Supreme
Court. (J. iL

Scott, Judicial Settlement of Controversies Between States of
the American

Union
,
Oxford, 1919.)

Lesson II

Arbitration as a procedure for the Settlement of
International Dis-

putes. (Text—Section II.)
Topics for Discussion

1. Limited character of the obligation to arbitrate, as
undertaken in

most treaties: insertion of provisos making exception of
disputes of the

kind most likely to lead to war, e. g., disputes relating to
honor and vital

interests. . . ,

2. Changing character of international tribunals:
judges always

chosen for the particular controversy; tendency of
arbitrators to act as

attorneys rather than as judges; experience obtained in one
case not often

available in subsequent cases. . .

3. Lack of continuity in the development of the law:
decisions ol

special arbitration tribunals not likely to influence
future tribunals.

Compare part played by judicial precedents in the development of
na-

tional law.
. . _ , ,

4. Advantages of arbitration when the issues involved are
political

rather than legal, i. e., when they involve matters of honor and
alleged

vital national interests. Nations sometimes unwilling to
entrust the settle-

ment of an acute dispute to an arbitration tribunal unless they
can con-

trol its membership in the given case. This frequently holds
where the

principles of law to be applied are not clear and the prejudices
of the

arbitrators might be decisive.



Arbitration and the World Court 41

Papers

1. Leading role played by the United States in the development of
arbitration during the nineteenth century. (Arbitration and the United

States, pp. 477-555, World Peace Foundation, Boston, 1926.)
2. The Root Treaties of 1908: negotiations attending the determina-

tion of the scope of the proviso making exception of disputes relating to
national honor or vital interests. ( Arbitration and the United States

,

pp.

497-524, World Peace Foundation, Boston, 1926.)
3. The Bryan Treaties for the Advancement of Peace: advantages of

investigation of disputes as a preliminary to peaceful settlement. (J. B.

Scott, Treaties for the Advancement of Peace

,

New York, 1920.)
4. Historical illustration of an important arbitration case, e. g., The

Alabama Claims Case, 1872. (Papers Relating to the Treaty of Washing-
ton

,

Vols. I-VI.)

Lesson III

The Proposed Judicial Arbitration Court of 1907.
III.)

Topics for Discussion

(Text—Section

1. The meaning of “judicial settlement” as distinct from arbitration.
The advantages of judicial responsibility on the part of the judges. Per-
manent judges as distinct from temporary arbitrators. Judicial tradi-
tion as a controlling factor in the development of law.

2. Leadership of the United States in proposing a permanent tribunal.
Instructions of Secretary Root to the American delegates to the Hague
Peace Conference of 1907.

3. Problem of determining the judges of the court. Rivalries be-
tween the large and the small states. Compromises suggested.

Papers

1. Arguments for the creation of a permanent court, as presented by
the American delegation. (J. B. Scott, The Status of the International
Court of Justice

,

New York, 1916.)
2. Reasons for the failure of the proposed Judicial Arbitration Court

(Court of Arbitral Justice). (A. P. Higgins, The Hague Peace Con-
ferences, Cambridge, 1909; J. B. Scott, The Hague Peace Conferences of
1899 and 1907, Baltimore, 1909.)

Lesson IV

Organization of the Permanent Court of International Justice (The
“World Court”). (Text—Section IV.)

. Topics for Discussion

1. The problem of selecting the judges of the Court. Desire of all
states to be represented on the Court. Necessity of limiting the size of
the Court. Desirability of giving representation to the different legal
systems of the world.



42 Arbitration and the World
Court

2 Solution of the problem by method of
electing the judges by

joint vote of the Council and the Assembly
of the League. Question

whether this means that the Court is an “agent of
the League, a League

Court.” Impractical character of the
objection on this point

3.

Qualifications of judges as laid down in the Statute of
the Court.

Nomination of judges by the old Hague Court of
Arbitration

4 Non-partisan role of the judges
in relation to national affiliations.

Judges as representatives of the world
community rather than of the

interests of their particular states.
Can judges rise to the responsibi l y

imposed upon them? Does the possibihty of
prejudice on the part of an

individual judge, where the interests of his
particular nation are involved,

constitute a vital defect in judicial
procedure?

Papers

1 A study of the national character and judicial
attainments of the

iudees of the Court since its creation.
Has obvious bias been shown

on any occasion? Has it differed in
character from the bias occasionally

shown by national judges? (Hudson, The
Permanent Court of Interna-

tional Justice, Cambridge, 1925.) . . ,
2 A study of alternative methods of selecting the

judges so as to re-

move any criticism of connection of the
Court with the League of Na-

tions. Compare the selection of judges
of the Supreme Court of the

United States by the President, subject to
confirmation by the Senate.

Does this make the Supreme Court dependent
upon the Executive or the

Senate ? Is the function of the
League in the election of judges anything

more than a convenient procedure, planned
so as to balance the claims

the large and the small states?

Lesson V .

Jurisdiction of the Permanent Court of International
Justice. (Text—

Sections V and VI.)
Topics eor Discussion

1. Voluntary character of the jurisdiction
exercised by the Court in

the absence of special agreement. Special
condition made by the United

States, in Senate Reservations of 1926,
that in no case may the jurisdic-

tion of the Court be other than voluntary in
regard to the United States.

2. Limited compulsory, or obligatory,
jurisdiction conferred upon the

Court by the states signing the “Optional
Clause.” Character of this

jurisdiction: questions of law and questions of fact.

3 The law to be applied by the Court.
Principles and rules of inter-

national law; treaties and conventions; decisions ex
aequo et bono possible

when the parties agree. . . . . ^ ,
4. Growing practice of states of inserting in

special treaties a clause

providing that disputes arising out of the
special treaty shall be sub-

mitted to the Court. Advantages of this practice.

5. Character of advisory opinions as
distinct from decisions. Purpose

of making provision for advisory opinions.
Special function performed

by advisory opinions. Assumption that advisory
opinions are not a

proper judicial function.



Arbitration and the World Court 43

6. Need of developing and codifying international law so as to pro-
vide a more definite basis for decisions of the Court. Extent to which
the Court itself can aid in the development of international law. Provi-
sioit in the Statute that decisions of the Court shall not have the force
of law-making precedents does not prevent the growth of law by respect
shown for decisions of the Court.

Papers

1. A study of the Senate Reservations of January 27, 1926, and of the
arguments pro and con on the purpose and jurisdiction of the Court.
(Hudson, The World Court

,

1921-1934, Boston, 1934)
;

Congressional
Record, January, 1926.)

2. A study of the arguments directed by the opposition in the Senate
against advisory opinions. Why advisory opinions were thought danger-
ous when decisions were not? What experience has shown in regard to
advisory opinions. (Hudson, The World Court, 1921-1934; Fachiri, The
Permanent Court of International Justice, 2nd Edition, New York, 1932.)

3. The development of international law by means of the decisions
of the Permanent Court. (Lauterpacht, The Development of Law by the
Permanent Court of International Justice, New York, 1934.) For ad-
vanced students.

4. Practice of certain State courts of the United States in rendering
advisory opinions. (Hudson, The Permanent Court of International Jus-
tice, Cambridge, 1925, Part I.)

Papers

Lesson VI

The Relation Between Peace and Justice. (Text—Section VII.)

Topics for Discussion

1. The primary function of law: the protection of rights recognized
by the law, the maintenance of the status quo pending legislative changes
in the law. In national law this is a function of the courts, supported by
the executive department.

2. Secondary function of law (secondary in a logical sense only; at
times paramount in practical importance): the promotion of justice; the
correction of conditions that develop in the course of time and tend to
suppress equality of opportunity; to make its provisions tolerable to those
who are to be controlled by it. A legislative function as distinct from
the judicial function of the courts.

3. Progress in the law consists in effecting a balance between the need
of stability, /*. e., the maintenance of the existing order, and the need of
change to make the law correspond with the social needs of the people
whom it is to govern.



44 Arbitration and the World
Court

4 Inadequate provision made for changes
in international relations

under the Covenant of the League. Too
great stress put upon the pre

vention of violence; too little provision
made for the redress of grievances.

Limited provision made in Article 19 of the
Covenant of the League of

Nations for changes in treaties that
have become inapp^

consideration of conditions whose continuance
might endanger the peace

of the world.

Papers

1 The extent to which international law
may be made an instrument

of baleful change in international
relations (Proceed Amencan

Societv of International Law, 1936, pp. 26,
36, 55.)

2 ^Relation between political and
economic security. Political na-

tionalism resorting to economic
nationalism to strengthen national arma-

ments and economic nationalism building
up armaments to protect its

Sn markets. (Rappard, The Common Menace of Economic and
Military Armaments. Cobden Lecture

for 1936.)

V Approval given by Pope Benedict in 1920 to the plan of an or-
ganized society of nations with the

object of guaranteeing their mutual

independence and safeguarding order among
the nations, P™vlded “ y

that such a league should be based
on chanty and justice. What m g

in the existing League are needed to
make it a league “based upon charity

and justice ” What should be the
organization and functions of a true

“Christian Commonwealth of Nations”?
(Papers presented at annual

meeting, April 13-14, 1936, of the
Catholic Association for International

Peace, being published as a separate
report.)



Arbitration and the World Court 45

APPENDIX C

BIBLIOGRAPHY

Fachiri, A. P., The Permanent Court of International Justice, 2nd edit.

(New York, 1932). A technical study of the organization and func-
tions of the Gourt, including an analysis of the decisions and advisory
opinions up to the date of publication. A useful manual.

Hudson, M. O., The World Court, 1921-1934 (Boston; World Peace
Foundation, 1934). A popular survey of the Court and its activities,
containing a study of the organization of the Court and an analysis of
the decisions and advisory opinions of the Court, as well as complete
documentary material covering the establishment of the Court, its pro-
cedure, and in particular the action taken by the United States in
regard to the Court. Doubtless the most useful of the many volumes
of a non-technical character relating to the Court.

The Permanent Court of International Justice: A Treatise. (New
York, 1934). A technical study covering all phases of the organiza-
tion and work of the Court. Perhaps the best treatment of the
Court in the English language; but intended for jurists and students
rather than for the general public.

World Court Reports
,
Vol. I, II (1934, 1935). A collection of the

texts of the decisions and advisory opinions of the Court, together
'with introductory material showing the procedure by which the vari-
ous cases have been brought before the Court. For advanced students
of international relations.

The Permanent Court of International Justice. Cambridge, 1925.) An
earlier collection of articles and addresses surveying the various ques-
tions raised by the establishment of the Court and its practical opera-
tion.

Jessup, P. C.} The United States and the World Court (Boston: World
Peace Foundation, 1929). A detailed study of the Senate reservations
adopted in 1926, and of the negotiations to which they gave rise and
the action taken in regard to them by the states signatories to the
Protocol of 1920. Appendices contain full documentary material re-
lating to the relations of the United States to the Court. A useful
supplement to Hudson’s World Court, 1921-1934.

Scott, J. B., The Hague lCourt Reports (New York, 1916). Second Series,
1932. A compilation of the various decisions rendered by the Hague
Permanent Court of Arbitration established in 1899, together with
summaries of the several controversies and the texts of the awards.
Indispensible material for a study of the practical working of arbitra-
tion tribunals as distinct from the Permanent Court of International
Justice.

The Hague Peace Conferences of 1899 and 1907 (Baltimore, 1909). A
survey of the problem of arbitration and of the creation of the Hague
Permanent Court of Arbitration and of the proposed Judicial Arbitra-
tion Court (Court of Arbitral Justice).



46 Arbitration and the World Court

World Peace Foundation, Arbitration and the United States
(Boston,

1926). A study of the development of arbitration as a means for the

pacific settlement of international disputes, with special
reference to

the policy of tjhe United States. It contains a
discussion of the Root

treaties of 1908, the Taft-Knox treaties of 1911, the
Bryan Treaties

for the Advancement of Peace, and the Central
American Court of

Justice. A very useful manual giving the necessary background
for

study of the Permanent Court of International Justice
and showmg

the relation between arbitration and judicial
settlement.



.

i

'





PIE Catholic Association for International Peace has grownout of a series of meetings during 1926-1927. Following
the Eucharistic Congress in Chicago in 1926, representatives

of a dozen nations met with Americans for discussion. In Oc-

tober of the same year a meeting was held in Cleveland where

a temporary organization called The Catholic Committee on

International Relations was formed. The permanent name,

The Catholic Association for International Peace, was adopted

at a two-day Conference in Washington in 1927. Since 1927

the Association has held the following Conferences: six Annual

in Washington, one in Cleveland and one in New York; four
Regional, at St. Louis University, Notre Dame University,
Marquette University and Villanova College; seven Student,

at the College of Notre Dame in Baltimore; Trinity College,
Washington; Our Lady of the Lake College, San Antonio;

Saint Mary College, Leavenworth, Kans.; one in Richmond;
College of St. Elizabeth, Convent Station, N.- J.; and Rosary

College, River Forest, 111. It is a membership organization.

Its objects and purposes are:

To study, disseminate and apply the principles of natural law and
Christian charity to international problems of the day;

To consider the moral and legal aspects of any action which may
be proposed or advocated in the international sphere;

To examine and consider issues which bear upon international
goodwill

;

To encourage the formation of conferences, lectures and study
circles

;

To issue reports on questions of international importance;
To further, in cooperation with similar Catholic organizations in

other countries, in accord with the teachings of the Church, the

object and purposes of world peace and happiness.

The ultimate purpose is to promote, in conformity with the mind
of the Church, “The Peace of Christ in the Kingdom of Christ.”

The Association works through the preparation of commit-

tee reports. Following careful preparation, these are discussed

both publicly and privately in order to secure able revision and

they are then published by the organization. Additional com-

mittees will be created from time to time. The Association
solicits the membership and cooperation of Catholics of like

mind. It is seeking especially the membership and cooperation

of those whose experience and studies are such that they can

take part in the preparation of committee reports.

The Committees on Ethics, Law and Organization, and
Economic Relations serve as a guiding committee on the par-

ticular questions for all other committees. Questions involving

moral judgments must be submitted to the Committee on

Ethics.



Publications of the Catholic Associa-

tion for International Peace

Pamphlet Series

—

No. 1—International Ethics.
No. 2—Latin America and the United States.
No. 3—Causes of War, and Security, Old and New.
No. 4—Haiti, Past and Present (out of print).
No. 5—Francis de Vitoria (out of print).
No. 6—American Agriculture and International Affairs.
No. 7—Puerto Rico and the United States (out of print).
No. 8—Europe and the United States—Elements in Their

Relationship.

No. 9—The Ethics of War.
No. 10—National Attitudes in Children (out of print).
No. 11—Tariffs and V/orld Peace.
No. 12—Manchuria—The Problem in the Far East.
No. 13—International Economic Life.
No. 14—The Church and Peace Efforts.
No. 15—War and Peace in St. Augustine’s De Civitate Dei.
No. 16—Peace Education in Catholic Schools.
No. 17—Peace Action of Benedict XV.
No. 18—Relations Between France and Italy.
No. 19—Catholic Organization for Peace in Europe.
No. 20—The United States and the Dominican Republic.
No. 21—An Introduction to Mexico.
No. 22—A Papal Peace Mosaic.
No. 23—Arbitration and the World Court.

Miscellaneous Series
Appeals for Peace of Pope Benedict XV and Pope Pius XI.
Argentina—Land of the Eucharistic Congress, 1934.
Catholic Primer on World Peace.
Peace Trends.
Permanent Peace Program of Pope Benedict XV.
Syllabus on International Relations

’«p:

Reports in Preparation

—

Agriculture in International Life.
Catholicism—the Keynote of Pan Americanism.
Disarmament and Catholic Doctrine.
International Cultural Relations.
Patriotism, Nationalism, and the Brotherhood of Man.
So-called “Over-Population.”
World Society—Symposium.

N. C. W. C. Joint Committee on Peace

—

Peace Statements of Recent Popes.
The Christian Way to Peace. 51