Iv Evolution of the Court

IV. EVOLUTION OF THE COURT The Permanent Court of International Justice is not a product of any one mind or group or negotiation. It is a growth of many years during which a multitude of men familiar with international affairs have collaborated in an effort to adapt to the conditions of international controversy the idea of justice under which in civi lized communities judicial decision has superseded private war. Many projects designed to accomplish this result were devised and published by individuals from the i 6th down to the close of the 19th century without much apparent effect. In the meantime, however, provisions for arbitration became more frequent in inter national treaties and the practice of settling international disputes by arbitration increased. Nineteen international arbitrations are registered during the first half of the 19th century and 117 during the second half. The Hague Conference of 1899 greatly facilitated the practice of international arbitration by providing a general system with well considered forms of procedure, an established secretariat and an available list of suitable arbitrators.

Justiciable and Non-justiciable Questions.

The next step in development was a realization of the distinction between the arbitration of controversies between nations and the judicial deci sion of justiciable questions. Arbitrators selected ad hoc by the parties for the decision of a controversy proved quite likely to negotiate a settlement. Men of the highest character in such a position had a tendency to act under a sense of diplomatic obliga tion, according to which the legal rights of the parties were merely elements in determining what it would be wise to do. By the time the second Hague Conference of 1907 met, a considerable opinion had arisen that for the decision of international questions of legal right it was necessary to create a permanent tribunal composed of judges who were judicial officers and nothing else, and who would devote their entire time to the trial and decision of international causes by judicial methods and under a sense of judicial responsi bility, and who were so selected that the different systems of law and procedure should be fairly represented.

After very full discussion, the conference of 1907 declared itself in favour of this view. It adopted a draft project for such a court which, however, remained incomplete because it proved impossible to reach an agreement on the mode of selecting the permanent judges. The numerous smaller powers were insistent upon their

rights of equal and independent sovereignty and upon an equal voice in the selection of judges as a logical incident to that sov ereignty. The great powers were unwilling to agree to a court in the constitution of which they would have practically no voice commensurate with their populations and interests, as against the overwhelming majority of smaller states. Throughout the confer ence and during the seven years that elapsed between 1907 and the outbreak of the World War, there were constant but unavailing negotiations for an agreement upon some mode of electing the judges.

At the close of the War, the 14th article of the Covenant of the League of Nations required the newly created Council of the League to resume this effort and to formulate and submit to the members of the League for adoption plans for the establishment of a Permanent Court of International Justice. In pursuance of that instruction, 12 international lawyers, resident in as many different countries, were invited by the Council to act as a com mittee to prepare plans for the establishment of the proposed court. Upon this invitation such a committee met at The Hague ( June 16, 1920), consisting of members from Great Britain, France, Spain, Belgium, Holland, Norway, Italy, Japan, Brazil and the United States. After long discussion, this committee, on July 24, 1920, reported a plan containing the arrangements for the election of judges above described. With some amendments in the Council and Assembly, particularly regarding jurisdiction, that plan was incorporated in the statute of Dec. 16, 1920.

Many of the provisions embodied in the statute creating this court had their origins during these long years of discussion in the necessity of reconciling the opinions of a great number of nations differing in their circumstances, in their modes of thought and feeling and in their conceptions of what would contribute to inter national justice. The statute probably does not conform to what would be produced in any single country, but it probably does include substantially all the useful provisions upon which the mem bers of the community of nations were willing to agree in the year 192o.