The Green Bag
so successfully tried under the present arrange ment, an argument for continuing nationals on the present court when, for special reasons, they are desired. Changes is the mode of appointment of nationals and neutrals alike, to ensure their greater impartiality, may well be recommended for consideration. Yet with all these improvements, the inter national court would still be an incon venient mode of settling differences, says Mr. Tryon, in comparison with a court regularly in session, to which resort may be had without delay, and maintained out of a common international fund instead of from funds deducted from the awards received by individual claim ants. "The best of arbitration tribunals, even those that sit at The Hague, are only temporary." The world is ready for a new court. This does not imply that the Hague Permanent Court ought to be abolished. While there is necessary delay in making up the panel of judges, this delay may be offset by certain advantages. Arbi tration by a court of varying and elastic personnel, not continuously in session but requiring to be constituted for each particular controversy, offers a flexible procedure which may be adapted to the needs of particular situations, and we believe that a flexible system of arbi tration is necessary at the present time, and that a rigid, uniform system would hinder rather than assist the progress of the movement toward international justice. Yet while we need this elastic mode of arbitration, it may also be said that many international disputes, purely legal in nature, do not call for so flex ible a system, but that a continuous court of fixed constitution is competent to pass upon them to the satisfaction of the parties without the delays neces sitated by the more cumbrous system.
Thus there is a reason for maintaining two parallel systems of arbitration, one elastic, and the other rigid. This, to our mind, is the reason for establishing a second court, such as the Court of Arbit ral Justice the draft for which was ap proved The advocacy at the second of the Hague new Conference. court need not spring from the conviction that the Hague Permanent Court does not ad minister justice impartially. Professor Lammasch has insisted under criticism that the decisions of the present court have been legal, and there are "pub licists who, while admitting that arbit ration has in the past utilized the methods of diplomacy, deny that the present court has resorted to them and main tain that it is legal in its methods." There is a visible tendency to regard the function of the existing court as diplomatic rather than judicial. Mr. Tryon is influenced by it, finding the word "arbitration" to have a different connotation from adjudication. There are, however, two kinds of arbitration, juridical and non-juridical, and because "arbitration" is the word commonly applied to settlements made outside regular courts, by non-professional arbitrators, a misinterpretation of the real nature of arbitration is apt to occur. The judicial arbitration that preceded the establishment of Roman republican and imperial courts was evidently a genuine application of rules of law.4 There have been juridical arbitrations at The Hague by professionals, and there have been non-juridical arbitrations by statesmen whose attempt was to reach an amicable compromise rather than to apply rules of law of which they were ignorant. But on the whole there • See quotations from Ihering, in "The Evolution of Permanent International Judiciary," by James Brown Scott, 6 American Journal of International Law 316.