Page:The Green Bag (1889–1914), Volume 25.pdf/103

This page needs to be proofread.

92 to arbitrate is unthinkable. Baty says:

The Green Bag As Dr.

If a country which has agreed in general terms to arbitrate cannot find a suitable set of arbitrators anywhere on earth which would be fair to herself and to her opponent, the public will not be long in directing upon her exactly the same force of irresistable disapproval as if she had refused to carry out an award.1 We are bound not only by the terms of the Hay-Pauncefote treaty, but also by the- obligation which we assumed when we agreed to arbitrate all dif ferences arising between this country and England except those involving vital interests and national honor. A dispute invoking the technical construc tion of treaties and other matters only to a minor extent cannot be withdrawn from the field of arbitrable questions without making this country ridiculous .in the eyes of the world. A common argument heard in many quarters is that from the Hague Perma nent Court as at present constituted an impartial determination of the question is not to be had. This conclusion is hardly sound. It is urged that the objec tions upon which the plea for the estab lishment of a Court of Arbitral Justice has been based apply with particular force to the subject-matter in hand. The chief reasons put forward for the constitution of the International Prize Court as a Court of Arbitral Justice, it will be remembered, were the so-called diplomatic rather than judicial character of the Hague Permanent Court, and the need of a tribunal possessing continuity of membership and function which could always be looked to for disinterested application of the law without fear or favor. We cordially approve the project for a Court of Arbitral Justice, and such a court, in our judgment, to attain its 1 International Law, p. 11.

maximum of usefulness should be com posed chiefly of lawyers, namely, of experts in international law and men of ripe judicial experience. Such a court should not be too small, its moral authority being the greater in propor tion to its numbers and it is desirable that representatives of the nations inter ested in the dispute should always sit in the court if possible in order to assure the question being examined from every possible standpoint. Such a court would be more useful for certain kinds of controversies than the Hague Permanent Court as now consti tuted. The disputants could always count upon an impartial application of the rules of international law. For a dispute purely legal in character, gov erned by existing rules of law rather than by general notions of equity, it would offer the ideal mode of arbitration. But for certain other classes of disputes it might be less adapted. If the dispute turned, for example, on some question of law not clearly settled, views of lead ing international jurists would be likely to be pretty well known in advance, and the technical proficiency of the court would present in many cases an insur mountable obstacle to the submission of a question to arbitration by the nation almost certain to lose. Again, international law like all law is growing, but professionals may incline to be more tenacious of traditional rule and stereotyped principle than non-profes sionals, and the growth of the equity side of international law may perhaps come less rapidly through the efforts of international lawyers than of states men. For these reasons, we believe that some more elastic mode of arbitration needs to be available than that pro vided by the proposed Court of Arbitral Justice, and that the existing Perma nent Court, which the new court is