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Judge of the Permanent Court of International Justice
An address delivered on Alumni Day, February 12,

1924, at Columbia University, New York Some years ago there was a popular divine, a wellknown orator, who spoke on Mondays at Tremont Temple in Boston, and who was accustomed to divide his discourse into two parts, the first of which he called the prelude, the other being the main body of the discourse. I had thought of following this plan today, but I was informed that I was to be "broadcasted” by radio, and that I must begin at a certain moment and end at a certain moment, being in this regard in a situation somewhat similar to that of the minstrel who said that he was "shanghaied.” But, like the minstrel, I do not feel at all unhappy about it. On the contrary, I am very cheerful, as the radio, besides causing me to observe certain limits of time, will have the effect of confining my remarks to a single subject; for I know you will expect me to say something about the Court in which I have the honor to be a judge.

Judge Finch has, in the enthusiasm of friendship, ascribed to me a larger and more important part than I deserve in bringing about or establishing the practice which has been pursued by the Permanent Court of International Justice in hearing cases and in rendering its judgments. The rules of the Court require the utmost publicity in all such matters, and not only Reprinted from the Columbia Alumni News, February 29, 1924.


publicity, but the ordinary judicial procedure as we know it, with notice to all parties and an opportunity to be heard, and these rules were severally adopted by the Court either unanimously or by a majority usually approaching unanimity.


At the outset I think it is desirable to explain the relation of what is called the Permanent Court of International Justice and the Permanent Court of Arbitration. There are two courts at the Hague, one called the Permanent Court of Arbitration, and the other the Permanent Court of International Justice. The Permanent Court of Arbitration was established under the Hague Convention of 1899, called the Convention for the Pacific Settlement of International Disputes. Under this Convention there was created what was called the Permanent Court of Arbitration, but this was not a court in the sense in which the term is generally understood. It was provided by the Convention that each contracting party might appoint not more than four representatives, who should be called members of the Court; and that, where a dispute was submitted for adjudication, a tribunal for the hearing and decision of the case should be appointed, preferably from among the so-called members of the Court. After the governments made their appointments, there were in all more than one hundred and twenty of these members.

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PERMANENT COURT OF ARBITRATION The Permanent Court of Arbitration has heard and determined a number of cases, and has performed in

fact a very useful part. Only the other evening some one made to me the remark that the reputation of the Permanent Court of Arbitration had been very much injured by reason of the fact that it did not prevent the war of 1914. My reply was simply this: That, if we are to apply that test, we must begin by abolishing the Supreme Court of the United States, because the Supreme Court of the United States not only did not prevent the Civil War in the United States, but by the decision it rendered or the opinion it gave in the Dred Scott case, materially contributed to the bringing on of the conflict. In other words, we can not test the value of an institution by its capacity to recreate human nature overnight. There is the difficulty. Because we cannot recreate human nature overnight, we do not proceed to abolish all legislative, administrative and judicial institutions. Those institutions, legislative, administrative and judicial, are the instrumentalities that enable us to carry on government and to avoid the constant recurrence of that awful thing called anarchy.


The creation of the Permanent Court of Arbitration failed in some respects to satisfy many of those who had been advocating the establishment of a permanent international court. One of the reasons why it failed to satisfy them, and I think the main reason, was that it was not a court in the ordinary sense. It was only a panel or eligible list from which, if a controversy was submitted, a tribunal of usually three or five persons was appointed for the purpose of trying the issues and rendering a decision upon them. Consequently, the agitation continued for the establishment of an actual court with a fixed personnel, which should always be open to suitors.

AGITATION FOR AN ACTUAL COURT The question of creating such a court was considered by the second Peace Conference at The Hague in 1907, and a plan was presented under the title of the “Permanent Court of Arbitral Justice.” The Conference, after considering the plan, gave it its general approval, but was unable to adopt it because no plan could be agreed upon for the appointment of the Judges. There was a discussion in the second Peace Conference at The Hague on this question. In the plan as submitted, there was a great preponderance given to what we call the great powers, and the smaller powers felt that under the plan proposed they would have no opportunity to make themselves heard or felt. Consequently the whole question had to be postponed because an agreement could not be reached on that subject.


During the peace negotiations at Paris in 1919, while the subject of the League of Nations was under consideration, a telegram was sent from the Bar Association of the City of New York, recommending that the Committee which was drawing up the plan for the League should formulate and incorporate in the plan a provision for a Permanent Court of International Justice. Now I am not able to say whether this was the actual cause of the insertion in the Covenant of the League of Nations of a stipulation

for the creation of such a court, but the fact seems to be admitted that it was after the receipt of the telegram that such a clause was inserted in the Covenant. That clause appears in the 14th Artiele of the Covenant, which provides that the Council of the League shall prepare a plan for a Permanent Court of International Justice, which shall have power to hear and determine such questions as are submitted to it, and which may also give advisory opinions on questions submitted by the Council or the Assembly of the League.

When the Council of the League came to carry out the provisions of Article 14, it decided to entrust the task of preparing a plan to an international committee, to be composed of eminent jurists from the various countries of the world. Such a committee was actually constituted under the title of the Advisory Committee of Jurists, and of that Committee Mr. Root was a member.

COMMITTEE OF JURISTS: WORK AND DETAILS The Committee sat for nearly two months at The Hague, in the summer of 1920, and drew up a plan. This plan was reported to the Council, which, after full consideration, modified it, especially in one of its provisions. The plan as originally prepared by the Advisory Committee of Jurists proposed to make the jurisdiction of the Court compulsory or obligatory as regarded certain classes of questions which were deemed to be of a legal nature. The Council, on considering this feature of the plan, decided that the Committee had exceeded its powers, Article 14 of the Covenant having described the proposed court as one that was to have power to decide all questions

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