THE GROTIUS SOCIETY PUBLICATIONS. No. 8. Texts illustrating the Constitution of the Supreme Court of the United States and the Permanent Court of International Justice. U777/ AX IXTRODL'CTIOX HUGH H. L. BELLOT, M.A.. D.C.L. BARRiSTER-AT-LAW, 'lc l>roit Intcruatioi; 'try of the itli'Hi : II the ( i rot in t'.s Lecture* delivered tit University College, London, on 2nd and 9th Ma\\ 1H2L Price 26 net. S W K T; 'I A N I ) MAX W E L L , I . L M I T K I ) CHANCERY f.AXl-;, f.OXDOX, VV.< THE GROTIUS SOCIETY PUBLICATIONS. . * . i i . . : 1Xxts.*fft( .Students of International Relations. E.ldcd lj DAVID OGG, M.A. i. ERASMUS :Institutio principis christiani. Translated, with an Introduction by PHRCY Fi.iv M.C., Fellow of All Souls College, Oxford." I. STLLY : Memoires des sa.^es et royales (economies d'estat. Selections. Translated, with an Introduction by DAY in OIK;, M.A., 1 Tutor of \e\Y College, Oxford. 3. G ROTH'S : De jure belli et pacis. Selections. Translated, with an Introduction by W. S. M. KNIGHT, of New C< Oxford, and of the Inner Temple. Barrister-at-Law. 4. ALBERONI : Scheme for reducing the Turkish Empire to the obedience of Christian Princes, etc. With an Introduction, by DAYIII O<;<;, M.A., l'e)lo\\ and Tuior ol Xe\v College. Oxford. 5. SAIXT-PIKRRK : Projet de Paix perpetuelle. Abrege du Projet de Paix perpetuelle. Selections. Translated, with an Introduction by H. HAI.I. l'i-;i.i or. M.A. Formerly Scholar of Lincoln College, Oxford. 6. BKMIIAM : Plan for an Universal and Perpetual Peace. With an Introduction by (IF.OKGK CIKHN-YII.I.K Pun.i.iMoiiF., M.A., B.C.L. Formerly Scholar of Christ Church, Oxford, and of the Middle Temple, Ikirrister-at-Law. 7. KANT : Selections. Translated, with an Introduction by 8. Texts illustrating the Constitution of the Supreme Court of the United States of America, and the Permanent Court of International Justice. With an Introduction by HUGH H. L. r.Ei.LOT, M.A.. D.C.I... of Trinity College, Ox ford, and of the Inner Temple, Barrister-at-Law. 1'Institut de Droit International. NOTE, Nos. 1 to 7 are in preparation. The price of each will be 26 net. THE GROTIUS SOCIETY PUBLICATIONS. Texts for Students of International Relations. No. 8. Texts illustrating the Constitution of the Supreme Court of the United States and the Permanent Court of International Justice. WITH AN INTRODUCTION HUGH H. L. BELLOT, M.A.. D.C.L. OF TRINITY COLLEGE, OXFORD, AND OF THE INNER TEMPLE, BARRISTER-AT-LAW, Associe de I'lnstitut de Droit International; Hon. Secretary of the International Law Association ; Hon. Secretary of the Grotius Society. Being the Rhodes Lectures delivered at University College, London, on 2nd and 9th May, 1921. SWEET AND MAXWELL, LIMITED 3 CHANCERY LANE, LONDON, W.C.2. 1921 CONTENTS. PAGE I. THE SUPREME COURT OF THE UNITED STATES ... 1 II. THE PERMANENT COURT OF INTERNATIONAL JUSTICE 20 BIBLIOGRAPHY ... 38 TEXTS. ARTICLES OF CONFEDERATION, 1777 40 THE CONSTITUTION OF THE UNITED STATES, 1787 ... 41 AMENDMENT OF THE CONSTITUTION ... 42 THE COVENANT OF THE LEAGUE OF NATIONS ... ... 43 DRAFT SCHEME OF THE HAGUE JURISTS, ARTICLES 33, 34 AND 56 ... 47 STATUTE FOR THE PERMANENT COURT OF INTERNATIONAL JUSTICE . 49 INTRODUCTION. I. THE SUPREME COURT OF THE UNITED STATES. I have chosen as the subject of these lectures a comparison between the Supreme Court of the United States and the Permanent Court of International Justice. I have made this choice because such a comparison appears to me to afford an object-lesson of supreme value at the present moment. Owing to our insularity, which is both a virtue and a vice, we are, perhaps, the most prone of all nations to ignore or reject the experience of other communities, even if they happen to be, of our own race. Now the origin and history of the Supreme Court present us with a study in international organisation which has proved most fruitful in the various attempts which have been made to establish International Arbitral Tribunals and International Courts of Justice. It is a study from which one rises with a confident . belief in the future success of the Permanent Court of International Justice. To appreciate the real significance of the Supreme Court you must examine the Constitution of the United States, and to understand that Constitution you must bear in mind the Constitu- tions of the New England States prior to the Declaration of Independence; the various schemes for union, such as " the New England Confederation " of 1643, William Penn's " Plan for a Union," 1754, and his " Sketch of Articles of Confederation " read G.S. 1 2 THE SUPREME COURT OF THE UNITED STATES AND before the Congress of July 21, 1775; the causes which led up to the War of Independence; the Declaration itself; the Articles of Cft\&KleratioH. .of .Npviember 17, 1777, whereby the United States became for "tlie* Irrfttr.tmie a Confederation in law as well as in fact ; 'ayd*2bh*e;IMt)ates;o^th'e. Philadelphia Convention of 1787, which *frame*d*tfe present* Federal Constitution. The Confederation of 1777 was a true confederation of sovereign independent States, united for certain specific purposes, and for such purposes only. It was a Union of States. It was not intended to be a super-State. There was apparently no intention to create a nation. Its defects soon became apparent. The principal defect was the lack of any permanent judicial tribunal with jurisdiction to settle disputes between the States themselves, or between the central Government and any one State. The machinery by which, under Art. IX., Commissions ad hoc might be appointed by Congress, proved quite inadequate. Only one such Commission was appointed, and only one case decided. In the boundary dispute between Pennsylvania and Connecticut blood had flowed in 1781. A dispute between the States of Virginia and Maryland relating to inland navigation produced a conference at Annapolis in 1786. Hamilton, one of the first to recognise the real difficulty, seized the occasion to convert the assembly into a constitutional con- ference, the Philadelphia Conference, which in May, 1787, adopted the new Constitution, whereby the old Confederation became a Federal Union with divided sovereignty. This sovereignty was defined by Chief Justice Marshall in McCullock v. Maryland (4 Wheaton, 316), decided in 1819, when he said : ' ' The powers of sovereignty are divided between the Govern- ment of the Union and those of the States. They are each sove- reign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." This principle of divided sovereignty has been clearly recognised in our own Imperial Constitution, and has received judicial interpretation. It has been held, for instance, by the Judicial Committee of the Privy Council that the powers possessed by the Legislatures of the Canadian Provinces under sect. 92 of the British North America Act were not in any sense to be THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 3 exercised by delegation, but that the Provincial Legislatures had authority as plenary and as ample within the limits prescribed as the Imperial Parliament in the plenitude of its powers possessed and could bestow (see Hodge v. The Queen, 9 App. Gas. 117), Whether the State delegates had any intention of creating a nation may be doubted. As Lord Bryce has observed, there were elements of unity ; there were elements of diversity. James Wilson said in the Philadelphia Convention : ' ' By adopting this Constitution we shall become a nation : we are not one now ' ' ; and the prediction has been amply fulfilled. You will observe that the Constitution commences with the words: " We, the People of the United States, do ordain and establish this Constitution." The original words as approved by Congress were: " We, the People of the United States of New Hampshire, Massachusetts, Rhode Island, etc."; and these words were only changed by the committee on style. Moreover, the Constitution was not submitted to the American people. It was submitted to the States, and was ratified by the peoples of the States. This is clearly expressed by James Monroe soon after the event, when he said that, in wresting the power, or what is called the sovereignty, from the Crown, it passed directly to the people, not to the people of all the colonies in the aggregate, but to the people of each colony to thirteen distinct communities, and not to one. This distinction was recognised by Hamilton, Madison, and others at the time. In MfrCullock v. Maryland (4 Wheaton, 316) Chief Justice Marshall said : ' ' No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass." But from the very birth of the Constitution a ceaseless conflict has existed between the Federal Government and the States Governments. We see two schools of thought struggling for the mastery. The one, believing in a strong national authority, welcomed centralisa- tion as a symptom of strength in the national life. The other, believing in local self-government and State autonomy, regarded with apprehension the attempted supersession of State autonomy by the Federal Government, with its resulting over-concentration 4 THE SUPREME COURT OP THE UNITED STATES AND of political action. Both schools were, and still are, strongly represented. Nevertheless, the growth of national sentiment is undoubtedly tending to substitute unity for union. The American people have begun to regard themselves as " one common mass," and it remains to be seen whether the preservation of local autonomy will be found in the awakened conscience, broader views, and higher sense of responsibility to the general public of the States in their effective legislation, conforming more closely to the general moral sense of the nation and in the more vigorous exercise of their authority for the general public good. I am inclined to think that pari passu with the growth of centralisation an enlightened provincialism will be substituted for a narrow parochialism. Our immediate concern, however, is with the position of the Supreme Court in the Constitution. Familiar as you doubtless are with the structure of the Constitution, it is nevertheless desirable to refer briefly to its constituent parts. By the Constitution all the legislative powers are vested in Congress, consisting of a House of Representatives, representing the people of the States according to population; and of a Senate, representing the States, or the people within the States, and in which each State is represented by two Senators, acting as independent members, and not as delegates upon instructions. The powers granted to Congress are in general terms. Congress is free to exercise its discretion in the choice of means to carry out its powers so as " to provide for the common defence and general welfare of the United States," and within the express or implied grant of powers for this primary object " to make all laws which shall be necessary and proper for carrying into execution the foregoing powers vested by this Constitution in the Govern- ment of the United States or in any Department or Offices thereof. ' ' The chief executive power is vested in the President, who is elected by the people for a term of four years. Before taking office the President takes an oath to " faithfully execute the office of President," and " to the best of his judgment and power, preserve, protect and defend the Constitution of the United States." His powers are very great, and are said to be greater than those of any constitutional monarch. THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 5 . v The absence of a central judicial authority was the crowning defect of the Union created by the Articles of Confederation of 1777. This defect was remedied in the new Constitution of 1787. By Art. III. of that Constitution the judicial power of the Union is vested in one Supreme Court and in such inferior Courts as Congress may establish. The judicial power extends to all cases in law and equity arising under the Constitution, the laws of the United States, and Treaties made or to be made under their authority; to all cases affecting Ambassadors, other public Ministers, and Consuls ; to all cases of Admiralty and maritime jurisdiction; to contro- versies to which the United States shall be a party ; to controversies between two or more States, between a State and citizens of another State, between a State claiming lands under grants of different States, and between a State or the citizens thereof and foreign citizens or subjects. In all cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State is a party, the Supreme Court exercises original jurisdiction, i.e., all such cases are commenced in the Supreme Court. In all other cases the Supreme Court exercises appellate juris- diction, both as to law and fact, with such exceptions and under such regulations as Congress may make. By the Xlth Amendment the judicial power must not be construed to extend to any suit in law or equity commenced or prosecuted against one of the States by citizens of another State, or by citizens or subjects of any foreign State. The law of the land is denned by Art. VI. to be " the Constitution and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made or which shall be made under the authority of the United States." By this law the Judges in every State are bound, notwith- standing anything in the Constitution or laws of any State to the contrary. In these simple terms the Supreme Court of the United States, which has formed the model for the Permanent Court of International Justice, was established. Thus was accomplished " the object of the Constitution," which, as Mr. Justice Story declared in Martin v. Hunter 6 THE SUPREME COURT OF THE UNITED STATES AND (1 Wheaton, 304), decided in 1816, " was to establish three great departments of government the legislative, the executive, and the judicial departments. The first was to pass laws, the second to approve and execute them, and the third to expound and enforce them." Such, then, is the theory of the Constitution, but I must warn you that the theory does not always square with the facts. I would here direct your attention to the origin of this theory of the separation of the legislative, executive, and judicial powers. It is said to have been due to the influence of Montesquieu, and particularly to the following passages from his Spirit of Laivs : ' When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty ; because apprehensions may arise, lest the same monarch or Senate should enact tyrannical laws, to execute them in a tyrannical manner. " Again there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative the life and liberty of the people would be exposed to arbitrary control; for the judge might behave with all the violence of an oppressor. " There would be an end of everything were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals " (Vol. I., Book II., Ch. VI., p. 165). It is interesting to note that Montesquieu's work was one of the books specially recommended to the New England law student. We must not forget, however, that Montesquieu derived this division of powers from the Englishman Locke, and from his own observations of the English Constitution, which he imperfectly understood. It was another Englishman, Blackstone, who a generation later, with less justification, repeated Montesquieu's pious phrases. " Wherever," declared the author of the Com- mentaries, " the right of making and enforcing the law is vested in the same man or in one and the same body of men, there can be no public liberty." This doctrine crossed the Atlantic to persuade the framers of the Constitution that only the complete separation of powers can prevent the approach of tyranny. THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 7. In England at that time there was no such separation, nor has there been since ; and yet the liberty of the subject is as secure, if not more so, in this country as in the United States. But we must remember that in the eighteenth century the House of Commons viewed with distrust and jealousy the power of the Crown, and endeavoured to exclude all servants of the Crown from their Assembly. This was the age of Private Bill legis- lation. As Maitland points out, Parliament was willing to pass an Act for naturalising Andreas Emmerich or to dissolve the marriage between Jonathan Twiss and Frances Dorrill, but it was not prepared to pass general statutes giving the Crown power to naturalise all aliens or to divorce all persons. This distrust was shared by Americans, and found expression in the separation of powers in the new Constitution. It was framed, says Professor Pollard, " under the dominance of the old popular prejudice that there must always be a fundamental antagonism between the interests and instincts of the Government and those of the governed. No one could really be trusted with the exercise of sovereign power. It was therefore put under the lock and key of a rigid and written Constitution, and such powers as were permitted exercise were divided " (a). In the event, as we know, this division of powers has led to confusion and to civil war. It has not prevented that arbitrary exercise of powers which the framers of the American Constitution dreaded so intensely. Each of the departments has greater opportunities within its own sphere for arbitrary action than in England, and the veto of the Supreme Court on legislation has been as effective as ever was the Royal Veto in England. Nevertheless, in spite of these defects of a rigid Constitution and a separation of powers, the rule of law which the New England settlers took with them has been observed as the fundamental principle of government. The independence of the Supreme Court has been secured and maintained. In spite of the theoretical separation of powers, the Judges of the Supreme Court, just as the Judges here, do in fact legislate; and in spite of the difficulties inherent in a federal system based on divided sovereignty, the Americans, just as they have established equality before the law (a) Evolution of Parliament, 255. 8 THE SUPREME COURT OF THE UNITED STATES AND for individuals within the State, so they have established equality before the law for the States within the Union. As John Stuart Mill said in 1861 : ' ' The Supreme Court of / the Federation dispenses International Law, and is the first great \ example of what is now r one of the most prominent wants of I civilised society, a real international tribunal " (b). V If the American Constitution had effected nothing more than this unique example, it would have earned the gratitude of the world. One of the first acts of Congress was the organisation of this judiciary. On September 24, 1789, the measure known as " An Act to establish the judicial Courts of the United States " was signed by President Washington. By this Act the Supreme Court consisted of a Chief Justice and five Associate Justices, four of whom formed a quorum. The number has since been increased to nine, of whom six form a quorum. Dividing the Union for judicial purposes into thirteen districts, now eighty, a District Court, composed of District Justices and presided over by a Justice of the Supreme Court, was established in each district. For purposes of justice, which could not be confined within the lines of any one State, the Union was further divided into three circuits, now nine. To each circuit one Justice of the Supreme Court is assigned. To each circuit two or three Justices are appointed, one or two, as the case may be, being District Judges. The Court may consist of any two Justices, or of one sitting alone. By the Act of 1891 Circuit Courts of Appeal, each composed of three Justices, were established. These Justices may be the Supreme Court Justice of the Circuit, the Circuit Justices, or one or more of the District Justices. This Court has relieved the Supreme Court of a mass of business which threatened to overwhelm it. The Court of Claims, established by the Act of 1855, consists now of five Justices. As amended in 1912, it possesses general jurisdiction of all " claims (except pensions) founded upon the Constitution of the United States or any laws of Congress, upon any regulation of an Executive Department, upon any contract (6) Representative Government, 305. THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 9 express or implied with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of claims which the party would be entitled to redress against the United States, either in a Court of law or admiralty, if the United States were suable." In such cases, therefore, the United States may be sued, without its consent, by a State or by an individual. This jurisdiction may be compared with that of our High Court in entertaining Petitions of Right against the Crown in matters of contract. The findings of the Court of Claims upon questions of fact are final and conclusive, but upon questions of law an appeal lies to the Supreme Court. The Judges of the Supreme Court, and of the inferior Courts, hold office during good behaviour, and all alike are sworn to " administer justice without respect to persons, and to do equal right to the poor and to the rich, and to faithfully discharge and perform all the duties incumbent on them, according to the best of their abilities and understanding, agreeably to the Constitution and laws of the United States." This judiciary Washington described in his letters as " the chief pillar upon which our national government must rest," and as " the keystone of our political fabric." It was undoubtedly regarded by Americans as the most important branch of the Government. I propose to consider the main contributions made by this experiment to the solution of the problem of a Permanent Court of International Justice. These are the administration of Inter- national Law by the Federal Courts, their refusal to perform extra-judicial functions, and their definition of jurisdiction. Of the many systems of the law administered by these Courts, including English, French, and Spanish law, it is sufficient for my purpose to refer only to that great body of law known as International Law. The conventional rules of International Law that is to say, the provisions contained in Treaties ratified by the Senate become part of the law of the land. The customary rules of International Law are assumed to be part of the law of the land, provided they do not conflict with some express statute. But, as was observed in the case of The Charming Betsey 10 THE SUPREME COURT OF THE UNITED STATES AND (2 Cranch, 64), decided in 1804, " an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains." A few years later Chief Justice Marshall, in the case of The Nereide (9 Cranch, 388), declared that " Till an Act be passed the Court is bound by the law of nations, which is part of the law of the land. " The position is the same in this. country. Our Courts are bound by International Law, unless there is some Act of Parliament to the contrary. In The Zamora ([1916] 2 A. C. 77) an Order in Council repugnant to International Law was held invalid. The International Law administered by the American Courts has been denned to include not only questions of right between nations governed by what has appropriately been called the Law of Nations, but also questions arising under what is usually called Private International Law, or the conflict of laws, and concerning the rights of persons within the territory of one nation by reason of acts, private or public, done within the territory of another nation (HiUon v. Guyot, 159 U. S. 113). As was said in The Paquete Habana (175 U. S. 677), decided in 1900: " International Law is part of our law, and must be ascertained and administered by the Courts of appropriate juris- diction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act, or judicial decision, resort must be had to the customs and usages of civilised nations ; and as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." We have next to consider the nature of judicial power. What did the framers of the Constitution understand by the expression "judicial power"? The colonial conception of this expression was precisely similar to that of Englishmen in the Mother Country at that period. This conception had been expressed in a series of decisions covering various aspects, a few of which are well worth recalling. THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 11 You will remember that in England at first the Judges, Serjeants, and Law Officers were full members of the King's Council in Parliament. As such, they played their part in politics. " Do not gloss the statute," said Chief Justice Hengham in 1305 to counsel, who was endeavouring to instruct the Court upon the interpretation of an Act of Parliament, " We understand it better than you, for we made it " (c). In the dynastic struggles between Kichard II. and Henry IV. the Judges were persuaded to give their opinion upon political questions, with the result that when the tide turned the Chief Justice lost his head and the rest of the Bench was sent into exile. This severe lesson the Judges took to heart, for when called upon by the Lords in 1460 to give their advice upon the claim of the Duke of York to the Throne they refused, and have ever since declined to express their opinions upon political questions ; and in a long series of cases they laid down the principles defining the nature of the judicial power and the extent of the executive power, with which we are all acquainted. Even if we were not assured of the fact, we should be justified in assuming that colonial lawyers and publicists prior to the War of Independence were familiar with that conception of judicial power by virtue of which English Judges refused to pass upon political questions, and denied to the Executive the right to administer justice, to issue proclamations, decree prohibitions contrary to the law, or to make law, and by virtue of which they held that a by-law of an incorporated town and an Act of the Legislature of a Colony in excess of their grants of power were equally null and void (d). That American Judges applied this conception even before the Union of 1787 appears from the case of Holmes v. Walton (Wambaugh Cases, 1, 22), decided in 1780. In this case the Supreme Court of New Jersey set aside a statute of the State, and a judgment founded upon it, as inconsistent with the Constitution of New Jersey, granting a right of trial by jury. (c) Year Books, 335 Edw. I., Bolls Ser., p. 82. (d) See Clark's Case (5 Coke's Eep. 64 a), Prohibitions del Roy (12 Coke's Rep. 63), In re Proclamations (12 Coke's Rep. 74 6), Rex v. Cutbush (4 Burrow, 2204), Campbell v. Hill (Cowp. 204), and Winthrop v. Lechmore (7 Connecticut Colonial Records, 571). 12 THE SUPREME COURT OF THE UNITED STATES AND Immediately after the creation of the judiciary by the Act of 1789 Congress passed an Act " to provide for the Settlement of the Claim of Widows and Orphans to Pensions," and called upon the Circuit Courts to administer the Act. Each of these Courts, however, being of opinion that the duty imposed by the Act was inconsistent with the judicial power, declined to entertain these claims. By an Act of 1792 Congress attempted to impose upon the Circuit Courts the duty of sitting as Commissioners to decide pension claims. In the case of United States v. Todd (13 Howard, 52 3), decided in 1793, the Supreme Court held that the power conferred by the Act was not judicial power within the meaning of the Constitution, and was therefore unconstitutional. Although it is true the power conferred was judicial in its nature, it was not, as Chief Justice Taney explained in United States v. Ferreira (13 Howard, 40), decided in 1851, a judicial function to be exercised in the ordinary forms of a Court of Justice. It was the award of a commissioner, not the judgment of a Court of Justice. Thus early did the Supreme Court, with infinite pains and courage, establish the principle that the Federal Courts could only exercise judicial power, and could not be constrained by the Legislature to perform extra-judicial duties inconsistent with the provisions of the Constitution ; and just as the English Judges in 1460 declined to pass upon political questions, so in 1793 the Judges of the Supreme Court declined to comply with Washing- ton's request for their opinion upon the construction of the Treaty of 1778 with France. The nature of the judicial power of the Supreme Court is nowhere more clearly stated than by Chief Justice Taney in the opinion he wrote just before his death for the case of Gordon v. United States (2 Wallace, 561), in 1864 (see 117 U. S. Rep. 697). It is, he said, " exclusively judicial, and it cannot be required or authorised to exercise any other. ' ' After quoting the provisions of the Constitution vesting original and appellate jurisdiction in the Court the Chief Justice continued : ' The existence of the Court is, therefore, as essential to the organisation of the government established by the Constitution as the election of a president or members of Congress. It is a THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 13 tribunal which is ultimately to decide all judicial questions confided to the Government of the United States. No appeal is given from its decisions, nor any power given to the legislative or executive departments to interfere with its judgments or process of execution. Its jurisdiction and powers and duties being denned in the organic law of the Government and being all strictly judicial, Congress cannot require or authorise the Court to exercise any other jurisdiction or power or perform any other duty." The Chief Justice then proceeded to discuss the reason for the creation of this power : ' ' The reason for giving such unusual power to a judicial tribunal is obvious. It was necessary to give it from the complex character of the Government of the United States, which is in part National and in part Federal : where two separate Governments exercise certain powers of sovereignty over the same territory, each independent of the other within its appropriate sphere of action, and where there was, therefore, an absolute necessity, in order to preserve internal tranquillity, that there should be some tribunal to decide between the Government of the United States and the Government of a State, whenever any question of controversy should arise as to their relative and respective powers in the common territory. The Supreme Court was created for that purpose, and to ensure its impartiality it was absolutely necessary to make it independent of the legislative power, and the influence, direct or indirect, of Congress and the Executive. Hence the care with which its jurisdiction, powers and duties are denned in the Constitution, and its independence of the legislative branch of the Government secured." Referring to a passage from The Federalist by James Madison, in which that publicist says that the decision is to be made impartially, and that every precaution is to be taken in order to secure this impartiality, because " some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact" (#), the Chief Justice continued: "It was to prevent an appeal to the sword and a dissolution of the compact that this Court, by an organic law, was made equal in origin and equal in title to the legislative and executive branches of the (e) The Federalist, No. xxxix. 14 THE SUPREME COURT OF THE UNITED STATES AND Government, its powers denned and limited and made strictly judicial, and placed, therefore, beyond the reach of the powers delegated to the legislative and executive departments. And it is upon the principle of the perfect independence of this Court that, in cases where the Constitution gives it original jurisdiction, the action of Congress has not been deemed necessary to regulate its exercise, or to prescribe the process to be used to bring the parties before the Court or to carry its judgment into execution. The jurisdiction and judicial power being vested in the Court, it proceeded to prescribe its process and to regulate its proceeding according to its own judgment, and Congress has never attempted to control or interfere with the action of the Court in this respect." And in conclusion the Chief Justice declared that an attempt of Congress or the Government to invest the Courts of the United States with the exercise of power not properly included in the grant of judicial power would be an attempt to infringe the sovereignty of the States, which had reserved the powers not directly or indirectly delegated to the United States. We have next to examine the extent of jurisdiction of the Supreme Court. Just as attempts were made to enlarge its judicial power, so attempts were made to extend its jurisdiction. These attempts have an important bearing upon the question, which was raised, whether the Permanent Court of International Justice should be allowed to entertain suits at the instance of an individual. Oswald v. State of New York (2 Dallas, 401) was the first case in which an individual commenced a suit against a State. No appearance was entered, and judgment was in 1793 given by default against the defendant State. The real fight, however, took place in the famous case of Chisholm v. State of Georgia (2 Dallas, 419), decided in the same year, in which Chisholm, a citizen of the State of South Carolina, sued the State of Georgia. By four to one the Judges of the Supreme Court held that a citizen of one State might sue another State under Art. III. of the Constitution. Upon the strict construction of this Article the decision was correct ; but it aroused the most violent opposition of the peoples of the States, who resented this alleged illegal infringement of State sovereignty. THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 15 The Xlth Amendment, passed within a twelve-month, negatived this decision, declaring that the judicial power should not be construed to extend to a suit in law or equity commenced by a citizen of one of the States against another State. In Hans v. State of Louisiana (134 U. S. 1), decided in 1889, the question was raised whether a State could be sued by one of its own citizens upon a supposition that the case is one that arises under Art. III. of the Constitution, which declares that " the judicial power of the United States shall extend to all cases in law and equity arising under this Constitution," and the corre- sponding clause of the Act of March 3, 1875: " That the Circuit Courts of the United States have original jurisdiction, concurrent with the Courts of the several States, of all suits of a civil nature at common law or in equity . . . arising under the Constitution, etc." Following the opinion of Chief Justice Taney in Beers et al. v. Arkansas (20 How. 527), decided in 1857, it was held by the Supreme Court that a Sovereign cannot be sued in his own Courts or in any other without his consent and permission ; and since the Circuit Courts only possessed jurisdiction concurrent with the Courts of the States, they could not acquire a greater jurisdiction. Further, although the Xlth Amendment did not expressly deny jurisdiction of such suits by individuals of a State against its own State, yet the spirit, if not the letter, of the Amendment did preclude such a suit ; and the Court therefore considered the spirit, and because of the spirit refused jurisdiction. Next, can a complaining State bring every issue between it and another State before the Supreme Court? The answer is in the negative. The only issues which the Court can hear and deter- mine are questions which in their nature are capable of judicial solution that is to say, the Court has jurisdiction in justiciable disputes only. What, then, is a justiciable dispute? A justiciable dispute has been denned by ex-President Taft as a controversy which can be settled in a Court on principles of law " ; in other words, a controversy capable of judicial settlement. Now although the judicial power of the Supreme Court was extended " to controversies between States " without exception, it does not embrace every issue between States. The only issues which the Court can hear and decide (except those expressly 16 THE SUPREME COURT OF THE UNITED STATES AND entrusted to it by the Constitution) relate to questions which are in their nature capable of judicial solution that is to say, the Court only possesses jurisdiction of justiciable questions. It is for the Court to decide whether the issue brought before it is justiciable or non-justiciable. Two or three examples must suffice. In The State of Kansas v. The State of Colorado (206 U. S. 95), decided in 1906, the complaining State sought to restrain the defendant State from appropriating so much of the water of the Arkansas River, which flowed from Colorado into Kansas, as to deprive the latter State of sufficient water for purposes of irrigation. In deciding that this was a justiciable dispute Mr. Justice Brewer said : ' ' Whenever . . . the action of one State reaches through the agency of natural laws into the territory of another State, the question of the extent and the limitations of the rights of the two States becomes a matter of justiciable dispute between them, and this Court is called upon to settle that dispute in such a way as will recognise the equal rights of both and at the same time establish justice between them." The relations between the States in this case were said to depend upon principles of International Law, and in such decisions the Supreme Court was building up what might not improperly be termed an " interstate common law." On the other hand, where in The State of Louisiana v. The State of Texas (176 U. S. 1), decided in 1900, the Governor of Texas had enforced a quarantine regulation so as to injure the business of the citizens of New Orleans, the Court declined jurisdiction on the ground that there was nothing to show that the State of Texas had authorised or ratified the action of its health officers so as to make it its own. The regulation itself was a proper one for the protection of the inhabitants of Texas. I will try to make the distinction quite clear. In the first case, by International Law the upper riparian State was not entitled to deprive the lower riparian State of its fair share of water for purposes of irrigation or navigation, and, if it did, it was liable for an infringement of a right residing in the injured State. This was therefore a justiciable dispute. In the latter case, Texas, as a sovereign State, was entitled by International Law to make such regulations as it pleased for the entry of aliens into its territories, or to exclude them altogether. THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 17 The State of Louisiana, therefore, could not complain of any injury which might accrue to its citizens by reason of any conditions of entry into Texas imposed upon its citizens, since it had no right, to insist upon their entry free from conditions; and since no ju& was involved, this was a non- justiciable dispute, to be settled,., if at all, by agreement. The case of Luther v. Borden (1 Howard, 1), decided in 1843,, may be cited to illustrate the refusal of the Court to interfere: with the internal political affairs of a State. This case arose- out of the so-called Dorr's Rebellion, and was an action of trespass; brought with the object of obtaining from the Supreme Court a decision in favour of one of the two rival political parties, deciding that the old Government, which had been reconstituted, was illegal. In delivering the opinion of the Court, Chief Justice Taney declared that such a question could only be determined by the political authority, and that the Court would not entertain suits involving political rights and political questions. It is worth noting that, in the general Arbitration Treaties entered into by the United States with Great Britain and France, the term " justiciable " was defined to include all issues which could be decided on principles of law or equity. Since the Supreme Court is a Court of limited jurisdiction, the first questions to be determined are whether the Court has jurisdiction over the subject-matter of the particular suit brought before it, and over the parties to that suit. In Cherokee Nation v. State of Georgia (5 Peters, 1), decided in 1831, Mr. Justice Baldwin said he had confined his examination of the case to the point of jurisdiction, " as jurisdiction is the first question which must confront us in every case." In this case jurisdiction was declined by the Supreme Court on the ground that the Cherokee Nation, although a State, was a dependent, not an independent, State. In every case it is for the Court to determine whether it possesses jurisdiction or not. I have now, I trust, clearly indicated the law administered by the Court in controversies between States, and the nature and extent of its judicial power. Of the alleged usurpation of judicial power by the Court, and of the process by which some political questions may become justiciable, I shall speak in the next lecture. G.S. 2 18 THE SUPREME COURT OF THE UNITED STATES AND In conclusion I desire to emphasise the principle of judicial settlement adopted by the Americans in 1787. Although the temporary Commissions under the Articles of Confederation of 1777 had proved unsatisfactory, the framers of the new Constitution retained the principle upon which they were based, viz., that of judicial settlement, fitting it to the needs of a more perfect union by conferring the jurisdiction to be exer- cised upon the Supreme Court, in which the States of the Union ^agreed to settle their disputes by due process of law. In the century and a quarter which has elapsed since its creation the Supreme Court has entertained some eighty disputes between States, in which thirty-one of the States have been either plaintiff or defendant, and in which the United States itself has been either plaintiff or defendant or has intervened in the proceedings where its interests were involved. But for the existence of the Supreme Court, any one of these disputes might have led to war, and many undoubtedly wobld have done so. By the Constitution the States renounced diplomacy and abjured war, and agreed to submit their differences to a Court of law. The Judges of the Supreme Court have justified the confidence thus reposed in them. These eighty cases have proved that States, however divergent their interests may be, and however strong their provincial senti- ments or prejudices, can settle their disputes in Courts of Justice by due process of law, and that between the breakdown of diplomacy and the resort to war there does exist an unfailing method of adjustment which even Sovereign Powers will accept. In all these cases the Court has proved the great moral substitute for force. It has settled disputes between States in accordance with the principles of International Law and justice. As Dr. Brown Scott declares : ' ' We see the mysteries between judicial and political power unveiled, the distinction between them stated, and the process by which political questions become justiciable revealed, and a procedure which has stood the argu- ments of counsel, satisfied the requirements of justice, and preserved peace between the States of the American Union and the Government of the Union, by assigning to each and keeping to each its appropriate sphere of action. Peace has come to the THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 19 States of the American Union through justice administered in its Court of Justice " (/). This is a great achievement; and I trust this brief survey of the history and functions of the Supreme Court of the United States, the instrument of that achievement, will have impressed upon your mind the fact that, faced with the problem of estab- lishing a Permanent Court of International Justice, we are not limited to a priori speculations, but have at our service the rich experience of a great nation, organised on a Federal system of divided sovereignty and the inheritor of English legal tradition. (/) Judicial Settlement of Controversies between States of the American Union, p. 543. 20 THE SUPREME COURT OF THE UNITED STATES AND IL THE PERMANENT COURT OF INTERNATIONAL JUSTICE. The Supreme Court of the United States is not the only example of a Permanent Court of International Justice. In 1907 was established by the five States of Central America the Central American Court of Justice, composed of five Judges, to which the five Eepublics bound themselves to submit " all controversies or questions which might arise among them of whatever nature and no matter what their origin might be, in case the respective Departments of Foreign Affairs should not have been able to reach an understanding. ' ' The Court was also empowered to take cognisance of suits which the citizens of one of the contracting parties might bring against the Government of one of the others on account of violation of treaties or denial of justice, and of other cases of an international character, including those which two or more of the Central American Governments, or one of them and a foreign Govern- ment, might agree to submit to it. It was declared " competent to determine its own jurisdiction, interpreting the Treaties and Conventions germane to the matter in dispute and applying the principles of International Law." This Court, however, may be cited rather as a warning than as an example. In spite of the effort to secure the independence of the Judges, owing to the control exercised by the States over their respective nominees, the Court has never been really independent. It has occupied rather the position of a standing Commission of distinguished diplomats than that of a true Court of Justice. It is true that the Court succeeded in averting a general war in 1908, but, on the whole, its judgments have not been received with enthusiasm or invariably obeyed. Its prestige cannot be said to stand very high in the eyes of the public, and but for the influence of the United States it would probably have , THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 21 disappeared long before the expiration of the period of ten years, for which it was created. With the non-renewal of the Con- vention, which gave it birth, it died a natural death in 1917. Its failure may be ascribed to two causes : First, the extravagant salaries paid to the Judges attracted prominent politicians, many of whom were appointed without regard either to judicial status or legal experience. Secondly, since no State Court in Central America has been known to be free from official influence, an International Court could not be expected to obtain greater freedom from political dictation. Under the new Federation now being formed perhaps these defects will be avoided. Before dealing with the Permanent Court of International Justice it is necessary to refer briefly to the " Permanent Court of Arbitration " established by the Hague Conference* 1899, revised by the Hague Conference, 1907, and still in being. Each of the forty-four ratifying States was empowered to nominate four members, who were to be persons " of known competency in questions of International Law " and of " the highest moral reputation." These persons form a standing panel, from which the parties to a dispute select five to sit as arbitrators. Failing agreement, each party may appoint two arbitrators, of whom one only may be its national or chosen from among the persons selected by it as members of the Permanent Court. These four choose an umpire. If their votes are equally divided, the choice of the umpire is entrusted to a third Power selected by the parties. If the parties fail to agree upon a third Power, each selects a different Power, by whom the choice is to be made. If these two Powers fail to agree, they present two candidates from the panel, not being nationals of the parties, and the choice is settled by drawing lots. In the preamble to the Convention creating the tribunal the signatory Powers declared their object to be the promotion of the friendly settlement of international disputes, the recognition of the solidarity uniting the members of the society of civilised nations, their desire to extend the empire of law, and to strengthen the appreciation of international justice. Convinced that the institution of a permanent tribunal accessible to all would con- tribute effectively to this object, the tribunal was made accessible to all nations at all times. 22 THE SUPREME COURT OF THE UNITED STATES AND Since the year 1902 sixteen arbitrations have been heard by this tribunal. That the awards should give complete satisfaction to all parties would be expecting too much of human nature. But they were, at any rate, accepted, and disputes which might* have resulted in armed conflict were settled. This tribunal is expressly recognised in the Peace Treaty of 1919. Art. 21 of the Covenant provides that " nothing in this Covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration or regional under- standings like the Monroe doctrine, for securing the maintenance of peace." The Hague Convention of 1907 for the Pacific Settlement of International Disputes is, of course, included in such " international engagements." And by Art. 13 of the Covenant the members of the League " agree that, whenever any dispute shall arise between them which they recognise to be suitable to arbitration and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration. . . . For the considera- tion of any such dispute the Court of Arbitration to which the case is referred shall be the Court agreed on by the parties to the dispute or stipulated in any convention existing between them." The Permanent Court of Arbitration of The Hague would therefore appear to be the proper tribunal for all parties to the Hague Convention of 1907. In January, 1920, the League of Nations was formally constituted. One of its first acts was to appoint an Advisory Committee of Jurists to prepare a scheme for a Permanent Court of International Justice. These jurists met at The Hague in June, and their scheme, subject to one fundamental and some minor amend- ments, was adopted by the League in December of the same year. By this scheme the Permanent Court is declared to be established in accordance with Art. 14 of the Covenant of the League, and to be in addition to, and not in substitution for, the Court of Arbitration already organised by the Hague Con- THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 23 ventions and recognised by Art. 13, and in addition to any other special Tribunals of Arbitrations to which States are always free to submit their disputes. As indicated, the Permanent Court is founded upon Art. 14, and I therefore invite your close attention to its terms. It reads as follows : " The Council shall formulate and submit to the Members of the League for adoption, plans for the establishment of a Permanent Court of Justice. The Court shall be com- petent to hear and determine any dispute of an international character, which the parties submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or Assembly." At the outset I want to make the distinction between arbitration and judicial settlement perfectly clear. In the former the parties agree to submit certain disputes to a tribunal for arbitration, and agree upon the specific question or questions to be submitted to such tribunal. The award of the tribunal may be in the nature of a compromise. In the latter the complaining party is entitled to formulate his claim, and to call upon the Court to pass upon his claim upon the evidence in strict accordance with the law applicable, even in the absence of the defendant party and against its will. The decision of the Court is a judgment. Arbitration may be voluntary or compulsory that is to say, where the parties to a dispute which has arisen agree to submit it to arbitration it is voluntary, but where the parties agree to submit any dispute which may arise hereafter to arbitration it is compulsory. Compulsory arbitration was not embodied in the Hague Convention, 1907. In the case of judicial settlement the jurisdiction is necessarily compulsory. A Court to which the defendant is not bound to submit is not a Court of Justice at all, but a Tribunal of Arbitration. I shall return to this point when I deal with the jurisdiction of the Permanent Court. We may now consider the framework of the Permanent Court as adopted by the League. The constitution of the Court is contained in a statute com- prising sixty-four articles, embracing four principal subjects, 24 THE SUPREME COURT OF THE UNITED STATES AND viz.: (1) The composition of the Court; (2) the ambit of its jurisdiction ; (3) the law to be administered ; and (4) the practice or procedure of the Court. It was in the composition of the Court that the schemes for a Court for the settlement of international disputes proposed at the Hague Conferences of 1899 and 1907 had broken down. At these Conferences the delegates had paid excessive worship to the doctrine of the equality of States. It was upon this rock that all such schemes foundered. This difficult question was solved by the adoption of the Koot- Phillimore plan, which, whilst recognising that States enjoy equal sovereignty, denies that they hold an equal position in the world, and consequently considers that the larger States are entitled to special consideration. By this scheme the appointment of the Judges is vested in the Council and the Assembly. The number of Judges for the present has been fixed at fifteen eleven Judges and four Deputy Judges. The method of their election is as follows : 1. The candidates are to be nominated by the members of the Permanent Court of Arbitration of The Hague. These candidates must have held the highest judicial office, or must be jurists of recognised competence in International Law. 2. From these candidates the Council and the Assembly each frames its own list of fifteen Judges. 3. The successful candidates are those appearing in both lists. 4. Obviously the successful candidates may not reach the requisite number of fifteen. In this event the Council and Assembly each frames a further list for the election of the remainder. 5. In the event of continuous disagreement a Committee of Conciliation is to be appointed to secure agreement. 6. Lastly, if this fails, the Judges already elected are to co-opt the remainder. By this ingenious method the great and small Powers alike will obtain representation upon the Court in due proportion to their relative importance. A Full Court is to consist of eleven Judges, but nine are sufficient to form a quorum. For the despatch of urgent business the Court is to form annually THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 25 a chamber of three Judges, who, at the request of the parties, may hear and determine their cases by summary procedure. A session of the Full Court is to be held annually, commencing on June 15. The President may, however, summon a Court whenever it may be deemed necessary. The Court is to frame its own rules of procedure, and particularly of summary procedure. Certain disputes relating to labour, transit, and communications are to be heard and determined by special chambers of Judges, which may sit elsewhere than at The Hague. The question whether a Judge of the nationality of one of the parties should be entitled to sit in the case was settled by the provisions of Art. 31. To exclude a Judge on this ground might not only weaken the Court, but deprive it of anyone acquainted with the respective systems of law of the parties. Judges *of the nationality of each party, therefore, are to retain their right to sit; and if the Court includes a Judge of the nationality of one of the parties only, the other party may select from the Deputy Judges a Judge of its nationality, if there be one. If there is not one, the party may choose a Judge, preferably from among those nominated as candidates by the Court. of Arbitration. The seat of the Court is fixed at The Hague. The jurisdiction of the Court is confined to suits between States or members of the League. You will recollect that the Supreme Court of the United States of America construed the Xlth Amend- ment to the Constitution to mean that its jurisdiction only extended to disputes between States as such, and not to individual claims against a State. It has, however, recently been held by the Supreme Court that, if an individual cedes his interest in, and title to, a claim to a State, such State can sue in its own name and behalf (State of South Dakota, y. State of North Carolina, 192 U. S. Eep. 286, 1904). So any Power, by espousing the case of its national, may make the case its own, so that the Court may assume jurisdiction of it if it be of an international character, and the judgment of the Court will be a judgment in favour of a State in a suit between States. The jurisdiction of the Court is defined by Arts. 35, 36, and 37 of the statute. These Articles replace those contained in the original scheme of the Hague Jurists. Now the latter clearly 26 THE SUPREME COURT OF THE UNITED STATES AND recognised the distinction between a Tribunal of Arbitration and a Court of Justice. By a majority of eleven to one they were of opinion that the members of the League were bound by their acceptance of Arts. 13 and 14 of the Covenant (1) to submit to arbitration disputes suitable for submission to arbitration, and (2) to submit to a Court of Justice disputes capable of judicial settlement. In their view, therefore, for a certain class of disputes compulsory arbitration, and for another class of disputes compulsory judicial settlement, were within the purview of the Covenant. Accord- ingly they provided the machinery for a Permanent Court with compulsory jurisdiction by Arts. 33 and 34. By these Articles, therefore, the Court might hear and deter- mine the dispute, even against the will of the defendant State and in its absence that is to say, the Court possessed compulsory jurisdiction. This interpretation of Arts. 13 and 14 of the Covenant was rejected by the Council of the League. The ostensible reasons given for this rejection are contained in the Report made by M. Bourgeois to the Council, and adopted by it. These were that, by Art. 12 of the Covenant, the parties were given a free choice (1) of laying their dispute before the Court, (2) of laying it before another International Tribunal, or (3) of laying it before the Council of the League, and that consequently compulsory arbitration or compulsory judicial settle- ment would be modifications of Arts. 12 and 13 of the Covenant. Objections to such modifications had been received from several Governments, and in the interests of the League itself it was undesirable that differences of opinion should arise at the very outset with regard to essential rules laid down in the Covenant. Whatever objections may have been raised by some Govern- ments, these reasons are obviously fallacious and ill-founded. Nevertheless, they are embodied in the new Arts. 35, 36, and 37. Now Art. 12 refers to arbitration and conciliation only; there is not a word about the Permanent Court. Secondly, it is Art. 14 alone which refers to judicial settlement. Hitherto no provision had been made for this. The Hague Jurists conceived such provision to be their business. Art. 14 contains the words " the Court shall be competent to THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 27 hear and determine any dispute of an international character, which the parties submit to it." Now I understand the words, " which the parties submit to it," to mean what Dr. Loder, Judge of the Supreme Court of the Netherlands, one of the Advisory Committee, understood them to mean, viz., that the party who has a right of an inter- national character may submit the dispute to the Court, whether the defendant State submits to the jurisdiction of the Court or not. " If nothing but arbitration was intended," says Dr. Loder, " the provision would be superfluous." And thirdly, there is, as I have already insisted, a fundamental distinction between arbitration and judicial settlement. This distinction is clearly recognised in Arts. 12 and 13, which provide for arbitration and conciliation; and in Art. 14, which provides for judicial settlement. The new Art. 36 adopted by the Assembly is as follows: " 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." It will be observed that no distinction is here drawn between justiciable and non-justiciable cases, or between the functions of an Arbitral Tribunal and those of a Court of Justice. These amendments are the work of politicians, who either have failed to appreciate fundamental distinctions or have attempted by a thoughtless compromise to reconcile opposing principles. The effect of these amendments is to make the Court little more than a Tribunal of Arbitration, and the attempt to make it a real Court, to which the contracting parties should be liable to be cited at the suit of any other of the contracting parties, has failed. All that remains to the Powers under Art. 36 is the option to accept the jurisdiction of the Court as compulsory, if they choose so to do, by signing the second protocol to the statute. In his latest utterance Mr. Root, whilst regretting the abandon- ment of compulsory jurisdiction, thinks it is not so very serious, since the plan is there and the world is going to come to it sometime. Indeed, since he wrote these words, some of the signatory States, viz., Costa Rica, Denmark, Norw r ay, Portugal, Salvador, and Switzerland, have so accepted the compulsory 28 THE SUPREME COURT OF THE UNITED STATES AND jurisdiction of the Court when the other party to the dispute shall have recognised the same obligation. I too regret this amendment, and still more that it should have been due to our own representative on the Council. In the first place, it shows a lack of confidence in the Court; and secondly, a determination not to submit to the Court disputes involving questions of " vital interests." The unwillingness to submit to judicial decision disputes falling within a limited field is also an unwillingness to submit these very disputes to arbitration. It is a rejection of the principle that justiciable disputes ought to be submitted for judicial settlement to a Court of Justice. The British objection to compulsory jurisdiction was the fear that the Court might be competent to entertain matters of Prize. Jurisdiction in Prize is of a. very special nature, and it is doubtful whether it would have fallen within the competence of the Court. In the first place, the claimants are individuals, not States; and in the second, unless there is a Prize Act granting a title in the prize to the captors, the latter has no legal claim; and even if there is a Prize Act, if the captures were made in port or by non-commissioned ships, the captors have no legal rights in Prize at all. You will have observed that jurisdiction in Prize is expressly given to the Supreme Court of the United States by the Constitution, and this for obvious reasons unnecessary to enumerate. It would have been possible to have expressly excluded this class of disputes from the compulsory jurisdiction, and to have left them to the International Prize Court already on the stocks. In order to avoid the remote contingency of their inclusion it was hardly necessary to knock the bottom out of the carefully drafted scheme of the Hague jurists. Had compulsory jurisdiction been allowed to stand, every dispute, provided it were justiciable, would at least have been judicially investigated. As matters now stand, we can only trust that once confidence in the Court is established the parties cited will submit to its jurisdiction; and just as the judgments of the Supreme Court have been obeyed, and just as the awards of Tribunals of Arbi- tration have been carried out, so the decisions of the Permanent THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 29 Court will be observed. A State which refuses to submit will, by its refusal, put itself hopelessly in the wrong in the eyes of the world. Once it submits to the jurisdiction of the Court, it will be constrained by the force of public opinion to obey its judgment or award. We must now inquire what meaning is to attach to the phrase ' ' disputes of an international character. " This, you will recollect, is the phrase used in Art. 14 of the Covenant. In the original draft of the Hague jurists the jurisdiction of the Court was limited to " cases of a legal nature." The phrase " cases of a legal nature " I take to be synonymous with the phrase " justiciable disputes," a phrase first used by Mr. Justice Bradley in Hans v. Louisiana, decided in 1889, when he said: " some things undoubtedly were made justiciable which were not known as such at the common law, such, for example, as controversies between States as to boundary lines, and other questions admitting of judicial settlement." What the learned Judge meant was this. All controversies between independent States are in their nature political, and can only be settled by the respective political powers, either by treaty, or, failing treaty, by war, since there is no superior power to which the parties can appeal. Hence such controversies are non-justiciable. But some of these controversies may become justiciable. For instance, by the Constitution the States of the American Union surrendered to the Federal Government their powers to declare war, to conclude peace, and to enter into agreements with each other or with a foreign Power without the consent of Congress; and by the same instrument they agreed to submit all controversies between each other to the decision of the Supreme Court to be established. Consequently, such questions as boundary disputes, which in their nature are political, became justiciable, and many such disputes were heard and determined by that Court. Justiciable disputes, as I endeavoured to show in the previous lecture, are those capable of settlement upon principles of law in a Court of Justice. So controversies between nations are of two classes those which can be decided on principles of International Law, and which are 30 THE SUPREME COURT OF THE UNITED STATES AND called justiciable; those which cannot be so decided, and which are called non-justiciable. The distinction is not between political and non-political, since many political disputes may become justiciable. The Alaska boundary dispute, for instance, was political, and was submitted to arbitration. The award was, in fact, a compromise. But it was a dispute capable of judicial solution. It might therefore have been submitted to an International Court of Justice, had one been in existence, and determined strictly upon principles of International Law. In such a Court it would, I venture to think, have been decided differently. On the other hand, such a dispute as the demand by Japan for the naturalisation of all Japanese residing in the United States, and the refusal by that Power, is a political dispute incapable of judicial decision upon principles of International Law. So, too, the demand by Bolivia for a window on .the sea is a non- justiciable dispute. Did the framers of Art. 14 of the Covenant, when they made the Permanent Court of International Justice competent to hear any dispute of an international character, intend to give the Court jurisdiction over non-justiciable disputes such as I have described? Surely not. No doubt these may be disputes of an international character; but since no legal rights are in issue, and the disputes are incapable of solution on principles of International Law, they are not fit cases for determination by a Court of Justice. Obviously such cases should be submitted to arbitration or to inquiry by the Council. I understand, therefore, the phrase to mean, as the Hague jurists understood it to mean, " cases of a legal nature " or " justiciable disputes," and I assume that the Court will decline to entertain disputes purely political and incapable of judicial settlement upon principles of International Law. As matters now stand, however, the Court would appear to be competent to hear and determine cases of whatever nature. Inquiry by the Council provided by Art. 12 of the Covenant has been dropped, and by the new Art. 37 the Permanent Court of International Justice has been substituted for the Permanent Court of Arbitration contemplated by Art. 13 of the Covenant. By Art. 38 the Court is empowered to decide a case ex sequo et THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 31 bono if the parties agree. The confusion of functions is thus complete. Further, the Court is declared by Art. 35 to be open not only to the original signatories to the Covenant and to such others as may subsequently adhere, but to all other States not members of the League. The conditions under which the latter States may apply to the Court are to be determined by the Council, subject to the special provisions contained in treaties in force. By Art. 17 of the Covenant : "In the event of dispute between a member of the League and a State which is not a member of the League or between States not members of the League, such States shall be invited to accept the obligations of membership of the League for the purposes of the dispute, upon such condi- tions as the Council may deem just. If such invitation is accepted, the provisions of Arts. 12 to 16 inclusive shall be applied with such modifications as may be deemed necessary by the Council." If a State declines the invitation and resorts to war against a member of the League, Art. 16, whereby such action shall ipso facto constitute an act of war against all the members of the League, shall apply. The law to be administered by the Court is defined in Art. 38. In other words, it is Public International Law, defined by Lord Eussell of Killowen as " The sum of the rules or usages which civilised States have agreed shall be binding on them in their dealings with one another." Subject to the specific provisions contained in Arts. 39 64, the Court, like the Supreme Court, is left to decide its own procedure. By these provisions the mode of procedure is to be that already well established in arbitration cases, viz., by case, countercase, and reply. The parties must be represented by their agents, and they may engage counsel or advocates to appear before the Court. At the hearing, which is to be open to the public, unless other- wise decided by the Court, the evidence of agents, witnesses, and experts may be given orally. It may well be that before the hearing can take place the wrongdoing, the subject of the dispute, may be continued. By Art. 41 power is given to the Court to indicate the provisional measures to be taken to preserve the respective rights of the 32 THE SUPREME COURT OF THE UNITED STATES AND parties. Notice of such measures must be immediately given to the parties and to the Council, which will then be in a position to intervene diplomatically or otherwise. These measures fall far short of what we call interim injunc- tions. But since the final orders of the Court are not to be enforced compulsorily, it would have been impracticable to give interim orders the force of injunctions. Once the parties are before the Court there is the same probability that these suggestions will be obeyed as readily as the final orders. At any rate, the orders of a judicial body are more likely to be obeyed than those of a political body like the Council. This provision is taken from an Article which appears in the Treaties for the advancement of peace negotiated by Mr. Bryan in 1914 on behalf of the United States with China, France, and Sweden, which provides that, in case the cause of the dispute should consist of certain acts already committed, or about to be committed, the Commission to which the dispute is referred shall indicate what measures ought to be taken provisionally and pending the delivery of its report. A somewhat similar provision is that by which the Central American Court was empowered to preserve the status quo. Where the defendant fails to appear or to put in his defence judgment may be given in default. But by Art. 53 the Court must first be satisfied not only that it possesses jurisdiction, but that the claim is supported by substantial evidence and is well founded in law and fact. This provision was found necessary, since in most Continental States, if the defendant fails to appear, the plaintiff need not prove his case. Judgment is at once entered for the plaintiff. This is in accordance with the French maxim : ' ' The absent are always wrong. ' ' But it is contrary to Anglo-American practice. Even if the defendant is absent, the plaintiff must prove his case. The Court is of counsel for the defendant, and will not give judgment against him until the plaintiff has proved him to be in the wrong. The question of proceeding in the absence of the defendant was raised before the Supreme Court of the United States quite early in its history. In the case of Grayson v. The Commonwealth of Virginia (3 Dallas, 320), decided in 1796, the Court held that the plaintiff was entitled to proceed ex parte. Thirty years later THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 33 Chief Justice Marshall, referring to this case in State of New Jersey v. State of New York (3 Peters, 461), decided in 1830, allowed a summons to be issued against the State of New York to procure its appearance, and declared that if the defendant should still fail to appear the Court would proceed to a final hearing; and in the case of State of Massachusetts v. State of Rhode Island (12 Peters, 755), decided in 1838, the Court was of opinion " that the practice seems to be well settled, that in suits against a State, if the State shall refuse or neglect to appear, upon due service of process, no coercive measures will be taken to compel- appearance; but the complainant or plaintiff will be allowed tc* proceed ex parte." Conformably, therefore, to Anglo-American practice, the plain- tiff will be required to establish his case to the satisfaction of the Court. Judgment in his favour will be entered only, and only if and to the extent which, the Court finds his case to be well founded in fact as well as in law. Following the substance of the provisions of the Draft Con- vention for the Court of Arbitral Justice adopted by the Hague Conference, 1907, by Art. 55 all questions are to be decided by a majority of the Judges present. If the opinions are equally divided, the President of the Court shall have a casting vote. Technically, the mere statement that the Court had found for or against the plaintiff would be sufficient. But Art. 56 very properly provides that the judgment shall state the reasons upon which it is based. Such a course indeed is necessary if the decisions of the Court are to form precedents and to build up International Law. Moreover, it is also necessary to satisfy public opinion, and to assist in its formation. In the original scheme, although the dissenting Judges were entitled to record the fact of their dissent or their reservations, they were not allowed to express the reasons for either. The Advisory Committee feared that a dissenting Judge might expand his reasons in such a way as to make the judgment of the Court ridiculous. The Council, however, has not shared this fear, and Art. 57, as amended, provides that Judges who do not concur in all or part of the judgment may deliver separate opinions. This amendment appears to me the better solution. A dissenting G.S. 3 34 THE SUPREME COURT OF THE UNITED STATES AND judgment may be exceedingly valuable. For instance, the dis- , senting judgment of Lord Shaw in Rex v. Halliday, Ex parte Zadig, is generally regarded by the profession as a more correct ou \r***- statement of the law than the judgments of the other Law Lords. By the new Art. 59, " the decision of the Court has no binding force except between the parties, and in respect of that particular 'case." If this provision is intended to rule out judicial decisions as precedents, although it is consistent with the functions of an Arbitral Tribunal, it is absolutely opposed to the Anglo-American conception of a Court of Justice. That most valuable part of International Law, judge-made law, would be lost to the world. If the provision does not bear this interpretation, it is a mere platitude and quite superfluous. The judgment of the Court, which must be delivered in open Court, is final. There is no appeal. But it may be ambiguous, or may appear to be so. Accordingly, either party may request the Court to interpret either its meaning or its scope. Further, in the event of some new fact coming to light which might have had a decisive influence upon the decision had it been known to the Court and to the party claiming revision, a rehearing will be granted, provided the ignorance of the party claiming revision was not due to his own negligence. Since third parties may be interested either originally or in a later stage of the case, they may be permitted to intervene, upon submitting a request to the Court, if in the opinion of the Court their interest is of a legal character. Whether the interest is of such a character is for the Court to decide. Since only the parties to the case are bound by the judgment, it is desirable that all States claiming an interest should be before the Court. Interest reipublicse lit sit finis litium. Finally, when the construction of a convention is raised, in which States other than those concerned in the case are parties, they must be notified. When notified, such States are entitled to intervene, and if they do so the construction placed upon the convention by the Court will bind them. By this provision a State not a party to the original dispute may present its views to the Court, and possibly obtain a decision in its favour. Such are the principal provisions of an institution destined, let us hope, to prevent war and to preserve the peace of the THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 35 world. It is the fruit of the idea of public right which has been centuries in the making. It is the result of the labours of many conferences and committees. It is especially the creation of the Advisory Committee of Jurists which sat at The Hague last. year, and we may note with gratification and pride that its successful birth was rendered possible by the wisdom and tact of two distinguished jurists the one a representative of the United States, the other of Great Britain Mr. Elihu Root and Lord Phillimore. For the scheme, as a whole, the chief credit must be assigned to the Dutch representative, Dr. Loder. The Court has been approved by the Council and the Assembly of the League of Nations. If the League lives and develops, the Court will develop with it pan passu in usefulness and power. \If, unhappily, the League should decline or cease to exist, the Court may still continue to function, provided an International Conference invested the diplomatic representatives of the States accredited to The Hague with the powers of the Council in relation to the Court. Whether the United States enters the League or not, of this I am assured : she will never willingly let die a Court in the creation of which she has played a great part, which forms a replica of her own Supreme Court, and which jf constitutes a living expression of her own high ideals. Within a few months the League will meet for the selection of the Judges. Upon their wise selection will rest the influence and power of the Court. If they are chosen impartially, without undue regard to their nationality, as, no doubt, they will be, from the ranks of Judges and jurists enjoying in their respective countries a. reputation for moral worth and learning and judicial experience, the judgments of the Court will be received by the world at large with respect, and will be accepted by the parties without demur. In some quarters it is contended that execution of the judg- ments will be too uncertain, unless some physical sanction in terrorem is provided. Such a sanction has proved unnecessary in the case of its prototype, the Supreme Court. In my opinion, it will prove equally unnecessary in the case of the Permanent Court of International Justice. The idea of public right finds expression in the Law of Nations. International Law is based on consent, not on physical force. 86 THE SUPREME COURT OF THE UNITED STATES AND In the United States the chief instrument of social progress has been the Supreme Court. Changes in the Constitution by amendments have become so difficult in matters of national importance as to be impossible. It is said that short of some great cataclysm or foreign or civil war any vital change is impracticable. But in a progressive community the law must respond to the growing needs of the people. If relief cannot be obtained from the Legislature, it must be found elsewhere. In the United States there have been usurpations of power both by the Legislature and the Executive. By some the Supreme Court also has been accused of judicial usurpation, but the judiciary has rather preserved the Constitution from popular passion and political faction. In proportion as the Executive, Congress, or the State Legislatures have grown wilder, it has set aside as unconstitutional a larger and larger proportion of their acts. So wide, 'however, are the provisions in the Constitution that the Supreme Court has been able to apply the principles of the law to the changed conditions resulting from the more recent expansion in trade and industry. As Chief Justice Marshall declared : ' ' Its nature requires that only its great outlines should be marked, and its important objects designated. ... It was intended to endure for ages to come, and to be adapted to the various crises in human affairs." It necessarily leaves, therefore, a wide latitude for construction. But the majority of so-called constitutional cases turn not so much upon the interpretation of the provisions of the Constitution itself as upon the interpretation of the actual conditions to which it is applied. Although the Court asserts that it never exercises political power, the ultimate effect of every constitutional decision is not only to declare the rights of the parties, but to define the powers of government. Thus, as Mr. Justice Holmes admitted, the Court does in fact legislate, and within the wide latitude left for judicial construction the Court, in construing the Constitution, does exercise a political power (a). It has proved the safety-valve of the Constitution. Without such usurpation of power if usurpation it be, it would have been impossible to adapt the Constitution to changing condi- tions, and to make it the beneficent organ of a progressive nation. (a) Southern Pacific Co. v. Jenson (244 U. S. 221) (1916): "I recognise without hesitation that Judges do and must legislate." THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 37 Even in our own country, where the Crown in Parliament has untrammelled power of legislation, the Courts, though not to the same extent, do in fact legislate, adapting the law, not to the letter, but to the spirit of the Constitution by a similar method of interpretation. \Just as the Supreme Court has interpreted the Constitution widely and generously, so the Permanent Court of International Justice will, we may be sure, interpret International Conventions in a broad spirit so as to adapt them to living realities, and thus imperceptibly assist in building up a body of general principles acceptable to all nations. The Anglo-American conception of liberty is liberty regulated by law. Liberty regulated by law means liberty regulated and limited by the rights of others, so that all may enjoy the same liberty and the same equality of rights. So, too, the liberty of nations will be regulated by law; and the chief instrument of such regulation will be found in a Permanent Court of International Justice, which, like the Supreme Court, will act as the safety-valve to the new inter- national organisation. \But we must not close our eyes to the difficulties, and even e dangers, of the new situation. States have been carved out of the old empires which are ignorant of their rights and duties. They are without experience of independence and self-government, and have little or no conception of liberty regulated by law as we Anglo-Americans understand the term. They are ambitious; they are extremely nationalist. It will not be easy to settle differences between them and between them and their former rulers. At the same time we must remember that there is really no dispute, even though it included questions of " independence,'* of " national honour," or of " vital interests," which could not be settled either by a Tribunal of Arbitration or by a Court of Justice composed of independent Judges of world-wide reputation and acting under a sense of judicial responsibility. Without such a tribunal or Court civilisation is in dire peril, and, as has been well said, " although there are many nations, there is only one civilisation "; and that " one civilisation " can only survive and develop if both within each State, as well as between all States, the Kule of Law prevails. BIBLIOGRAPHY. Readings on American Federal Government. Edited by PAUL S. REINSCH. 1908. The Supreme Court of the United States : Its History and Influence in our Constitutional System. By W. W. WILLOUGHBY. An International Court of Justice. By the Hon. JAMES BROWN SCOTT A.M., J.U.D., LL.D. 1916. The Status of an International Court of Justice. By the Hon. JAMES BROWN SCOTT. 1916. The Problem of an International Court of Justice. By Dr. HANS WEHBERG. Translated from the German by CHARLES FENWICK, Ph.D. 1918. Judicial Settlement of Controversies between States of the American Union. Cases Decided in the Supreme Court of the United States. Collected and Edited by the Hon. JAMES BROWN SCOTT. Two vols. 1918. Judicial Settlement of Controversies bettoeen States of the American Union : An Analysis of Cases Decided in the Supreme Court of the United States. By the Hon. JAMES BROWN SCOTT. 1919. The Treaty of Peace between the Allied and Associated Powers and Germany. Signed at Versailles, June 28th, 1919. The United States of America : A Study in International Organisation. By the Hon. JAMES BROWN SCOTT. 1920. The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists. By the Hon. JAMES BROWN SCOTT. 1920. The Project Relative to a Court of Arbitral Justice. By the Hon. JAMES BROWN SCOTT. 1920. The Debates in the Federal Convention of 1787 which Framed the Constitution of the United States. Reported by JAMES MADISON. Edited by GAILLARD HUNT and JAMES BROWN SCOTT. 1920. BIBLIOGRAPHY. 39 Taft Papers on League of Nations. Edited by THEODORE MARBURG, M.A., LL.D., and HORACE E. FLACK, Ph.D. 1920. Permanent Court of International Justice Advisory Committee of Jurists. Draft Scheme of the Committee with Reports to the Council of the League of Nations and Resolutions by the Council relating to it. League of Nations Secretariat, Geneva, November, 1920. Statute for the Permanent Court of International Justice. League of Nations Official Journal, January-February, 1921, pp. 14-25. The First Assembly. A Study of the Proceedings of the First Assembly of the League of Nations. By a Committee of the League of Nations Union. Edited by the Hon. OLIVER BRETT. 1921. N.B. For the American texts, reference should be made to Dr. BROWN SCOTT'S The United States of America: A Study in Inter- national Orga nisation. TEXTS. ARTICLES OF CONFEDERATION. (Adopted by Congress November 15, 1777.) ART. IX. The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other cause whatever; which authority shall always be exercised in the manner following. Whenever the legislative or executive authority or lawful agent of any State in controversy with another shall present a petition to Congress, stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in con- troversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent, Commissioners or Judges to constitute a Court for hearing and determining the matter in question : but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names as Congress shall direct, shall in the presence of Congress be drawn out by lot, and the persons whose names shall be so drawn, or any five of them, shall be Commissioners or Judges, to hear and finally determine the controversy, so always as a major part of the Judges who shall hear the cause shall agree in the determination : and if either party shall neglect to attend at the day appointed, without showing reasons, which Congress shall judge sufficient, or being present shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the Secretary THE SUPREME COURT OF THE UNITED STATES. 41 of Congress shall strike in behalf of such party absent or refusing ; and the judgment and sentence of the Court to be appointed, in the manner before prescribed, shall be final. and conclusive; and if any of the parties shall refuse to submit to the authority of such Court, or to appear or defend their claim or cause, the Court shall nevertheless proceed to pronounce sentence, or judgment, which shall in like manner be final and decisive, the judgment or sentence and other proceedings being in either case transmitted to Congress and lodged among the acts of Congress for the security of the parties concerned : provided that every Commissioner, before he sits in judgment, shall take an oath to be administered by one of the Judges of the supreme or superior Court of the State, where the cause shall be tried, " well and truly to hear and determine the matter in question, according to the best of his judgment, without favour, affection or hope of reward": provided also that no State shall be deprived of territory for the benefit of the United States. THE CONSTITUTION OF THE UNITED STATES. (Adopted September 17, 1787.) ART. III. Sect. I. The judicial power of the United States, both in law and equity, shall be vested in one Supreme Court, and in such Inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the Supreme and Inferior Courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. Sect. II. The judicial power shall extend to all cases, both in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. To all cases affecting ambassadors, other public ministers and consuls. To all cases of admiralty and maritime jurisdiction. To controversies to which the United States shall be a party. To controversies between two' or more 42 TEXTS. States ; between a State and citizens of another State ; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign States, citizens or subjects. In cases affecting ambassadors, other public- ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate juris- diction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. Sect. III. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open Court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted. AMENDMENT TO THE CONSTITUTION. (Ratified January 8, 1798.) ART. XI. The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State (a). (a) For the full American texts, see Dr. Brown Scott's " United States of America : A Study in International Organisation." THE COVENANT OP THE LEAGUE OF NATIONS. 43 THE COVENANT OF THE LEAGUE OF NATIONS. ART. XI. Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations. In case any such emergency should arise the Secretary General shall on the request of any Member of the League forthwith summon a meeting of the Council. It is also declared to be the friendly right of each Member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever affecting international relations which threatens to disturb international peace or the good understanding between nations upon which peace depends. ART. XII. The Members of the League agree that if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or to inquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the report by the Council. In any case under this Article the award of the arbitrators shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute. ART. XIII.. The Members of the League agree that whenever any dispute shall arise between them which they recognise to be suitable for submission to arbitration and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration. Disputes as to the interpretation of a treaty, as to any question of International Law, as to the existence of any fact which if established would constitute a breach of any international obliga- 44 TEXTS. tion, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration. For the consideration of any such dispute the Court of Arbitration to which the case is referred shall be the Court agreed on by the parties to the dispute or stipulated in any convention existing between them. The Members of the League agree that they will carry out in full good faith any award that may be rendered, and that they will not resort to war against a Member of the League which complies therewith. In the event of any failure to carry out such an award, the Council shall propose what steps should be taken to give effect thereto. ART. XIV. The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly. ART. XV. If there should arise between Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration in accordance with Art. XIV., the Members of the League agree that they will submit the matter to the Council. Any party to the dispute may effect such submission by giving notice of the existence of the dispute to the Secretary General, who will make all necessary arrangements for a full investigation and consideration thereof. For this purpose the parties to the dispute will communicate to the Secretary General, as promptly as possible, statements of their case, with all the relevant facts and papers, and the Council may forthwith direct the publication thereof. The Council shall endeavour to effect a settlement of the dispute, and if such efforts are successful, a statement shall be THE COVENANT OF THE LEAGUE OF NATIONS. 45 made public giving such facts and explanations regarding the dispute and the terms of settlement thereof as the Council may deem appropriate. If the dispute is not thus settled, the Council either unanimously or by a majority vote shall make and publish a report containing a statement of the facts of the dispute and the recommendations which are deemed just and proper in regard thereto. Any Member of the League represented on the Council may make public a statement of the facts of the dispute and of its conclusions regarding the same. If a report by the Council is unanimously agreed to by the members thereof other than the Representatives of one or more of the parties to the dispute, the Members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report. If the Council fails to reach a report which is unanimously agreed to by the members thereof, other than the Representatives of one or more of the parties to the dispute, the Members of the League reserve to themselves the right to take such action as they shall consider necessary for the maintenance of right and justice. If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by International Law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement. The Council may in any case under this Article refer the dispute to the Assembly. The dispute shall be so referred at the request of either party to the dispute, provided that such request be made within fourteen days after the submission of the dispute to the Council. In any case referred to the Assembly, all the provisions of this Article and of Art. XII. relating to the action and powers of the Council shall apply to the action and powers of the Assembly, provided that a report made by the Assembly, if concurred in by the Representatives of those Members of the League repre- sented on the Council and of a majority of the other Members of the League, exclusive in each case of the Representatives of the parties to the dispute, shall have the same force as a report 46 TEXTS. by the Council concurred in by all the members thereof other than the Representatives of one or more of the parties to the dispute. ART. XVI. Should any Member of the League resort to war in disregard of its covenants under Arts. XII., XIII., or XV., it shall ipsn facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake imme- diately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the covenant-breaking State, and the preven- tion of all financial, commercial or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the League or not. It shall be the duty of the Council in such case to recommend to the several Governments concerned what effective military, naval or air force the Members of the League shall severally contribute to the armed forces to be used to protect the covenants of the League. The Members of the League agree, further, that they will mutually support one another in the financial and economic measures which are taken under this Article, in order to minimise the loss and inconvenience resulting from the above measures, and that they will mutually support one another in resisting any special measures aimed at one of their number by the covenant- breaking State, and that they will take the necessary steps to afford passage through their territory to the forces of any of the Members of the League which are co-operating to protect the covenants of the League. Any Member of the League which has violated any covenant of the League may be declared to be no longer a Member of the League by a vote of the Council concurred in by the Representa- tives of all the other Members of the League represented thereon. ART. XVII. In the event of a dispute between a Member of the League and a State which is not a Member of the League, or between States not Members of the League, the State or States not THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 47 Members of the League shall be invited to accept the obligations of Membership in the League for the purposes of such dispute, upon such conditions as the Council may deem just. If such invitation is accepted, the provisions of Arts. XII. to XVI. inclu- sive shall be applied with such modifications as may be deemed necessary by the Council. Upon such invitation being given the Council shall immediately institute an inquiry into the circumstances of the dispute and recommend such action as may seem best and most effectual in the circumstances. If a State so invited shall refuse to accept the obligations of membership in the League for the purposes of such dispute and shall resort to war against a Member of the League, the provisions of Art. XVI. shall be applicable as against the State taking such action. If both parties to the dispute when so invited refuse to accept the obligations of membership in the League for the purposes of such dispute, the Council may take such measures and make such recommendations as will prevent hostilities and will result in the settlement of the dispute. ART. XXI. Nothing in this Covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration or regional understandings like the Monroe doctrine, for securing the maintenance of peace. DRAFT SCHEME FOR THE INSTITUTION OF A PER- MANENT COURT OF INTERNATIONAL JUSTICE. ART. 33. When a dispute has arisen between States, and it has been found impossible to settle it by diplomatic means, and no agree- ment has been made to choose another jurisdiction, the party complaining may bring the case before the Court. The Court 48 TEXTS. shall, first of all, decide whether the preceding conditions have been complied with ; if so, it shall hear and determine the dispute according to the terms and within the limits of the next Article. ART. 34. Between States which are Members of the League of Nations, the Court shall have jurisdiction (and this without any special convention giving it jurisdiction) to hear and determine cases of a legal nature concerning : (a) The interpretation of a treaty ; (b) Any question of International Law ; (c) The existence of any fact which, if established, would constitute a breach of an international obligation ; (d) The nature or extent of reparation to be made for the breach of an international obligation ; (e) The interpretation of a sentence passed by the Court. The Court shall also take cognisance of all disputes of any kind which may be submitted to it by a general or particular convention between the parties. In the event of a dispute as to whether a certain case comes within any of the categories above mentioned, the matter shall be settled by the decision of the Court. ART. 56. If the judgment given does not represent, wholly or in part, the unanimous opinion of the Judges, the dissenting Judges shall be entitled to have the fact of their dissent or reservations men- tioned. But the reasons for their dissent or reservations shall not be expressed in the judgment (a). (a) For the full text, see League of Nations Secretariat, Document 44, November, 1920. THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 49 STATUTE FOR THE PERMANENT COURT OF INTERNATIONAL JUSTICE. (Adopted by the Council at its Meeting of December 14, 1920.) PROTOCOL OF SIGNATURE. The Members of the League of Nations, through the under- signed, duly authorised, declare their acceptance of the adjoined Statute of the Permanent Court of International Justice of the League of Nations, which was approved by a unanimous vote of the Assembly of the League on December 13, 1920, at Geneva. Consequently, they hereby declare that they accept the juris- diction of the Court in accordance with the terms and subject to the conditions of the above-mentioned Statute. The present Protocol, which has been drawn up in accordance with the decision taken by the Assembly of the League of Nations on December 13, 1920, is subject to ratification. Each Power shall send its ratification to the Secretary-General of the League of Nations; the latter shall take the necessary steps to notify such ratification to the other signatory Powers. The ratification shall be deposited in the archives of the Secretariat of the League of Nations. The said Protocol shall remain open for signature by the Members of the League. The Statute of the Court shall come into force as provided in the above-mentioned decision. Executed at Geneva, in a single copy, the French and English texts of which shall both be authentic. (December 16, 1920.) OPTIONAL CLAUSE. The undersigned, being duly authorised thereto, further declare, on behalf of their* Government, that, from this date, they accept as compulsory, ipso facto and without special Convention, the jurisdiction of the Court in conformity with Art. 36, para. 2 of the Statute of the Court, under the following conditions : G.S. 4 50 TEXTS. STATUTE FOR THE PERMANENT COURT OF INTERNATIONAL JUSTICE. (Provided for by Art. 14 of the Covenant of the League of Nations.} ART. 1. . A Permanent Court of International Justice is hereby estab- lished, in accordance with Art. 14 of the Covenant of the League of Nations. This Court shall be in addition to the Court of Arbitration organised by the Conventions of The Hague of 1899 and 1907, and to the special Tribunals of Arbitration to which States are always at liberty to submit their disputes for settlement. CHAPTER I. ORGANISATION OF THE COURT. ART. 2. The Permanent Court of International Justice shall be composed of a body of independent Judges, elected regardless of their nationality from amongst persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognised 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 THE PERMANENT COURT OF INTERNATIONAL JUSTICE'. 51 national groups in the Court of Arbitration, in accordance with* the following provisions. In the case of Members of the League of Nations not repre- sented in the Permanent Court of Arbitration, the lists of candidates shall be drawn up by national groups appointed for this purpose by their Governments under the same conditions as those prescribed for members of the Permanent Court of Arbitration by Art. 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 Covenant or to the States which join the League subsequently, and to the persons appointed under para. 2 of Art. 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 Faculties 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 prepare a list in alphabetical order of all the persons thus nominated. Save as provided in Art. 12, para. 2, these shall be the only persons eligible for appointment. The Secretary-General shall submit this list to the Assembly and to the Council. 52 TEXTS. ART. 8. The Assembly and the Council shall proceed independently of one another to elect, first 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 the main forms of civilisation and the principal legal systems of the world. 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 Council, the eldest of these only shall be considered as elected. ART. 11. If, after the first meeting held for the purpose of the election, one or more seats remain to be filled, a second and, if necessary, a third meeting shall take place. ART. 12. If, after the third meeting, one or more seats still remain unfilled, a joint conference consisting of six members, three appointed by the Assembly and three by the Council, may be formed, at any time, at the request of either the Assembly or the Council, for the purpose of choosing one name for each seat still vacant, to submit to the Assembly and the Council for their respective acceptance. If the conference is unanimously agreed upon any person who fulfils the required conditions, he may be included in its list, even though he was not included in the list of nominations referred to in Arts. 4 and 5. THE PERMANENT COURT OF IN TEH NATIONAL JUSTICE. 53 If the joint conference is satisfied that it will not be successful in procuring an election, those members of the Court who have already been appointed shall, within a period to be fixed by the Council, proceed to fill the vacant seats by election from amongst those candidates who have obtained votes either in the Assembly or in the Council. In the event of an equality of votes amongst the Judges, the eldest Judge shall have a casting vote. ART. 13. The members of the Court shall be elected for nine years. They may be re-elected. They shall continue to discharge their duties until their places have been 'filled. Though replaced, they shall finish any cases which they may have begun. ART. 14. Vacancies which may occur shall be filled by the same method as that laid down for the first election. A member of the Court elected to replace a member whose period of appointment had not expired will hold the appointment for the remainder of his predecessor's term.. ART. 15. Deputy Judges shall be called upon to sit in the order laid down in a list. This list shall be prepared by the Court and shall have regard, first, to priority of election and, secondly, to age. ART. 16. The ordinary members of the Court may not exercise any political or administrative function. This provision 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. 54 TEXTS. ART. 17. No member of the Court can act as agent, counsel or advocate in any case of an international nature. This provision only applies 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 he has previously taken an active part, as agent, counsel or advocate for one of the contesting parties, or as a member of a national or international Court, or of a commission of enquiry, 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 cannot be dismissed unless, in the unanimous opinion of the other members, he has ceased to fulfil the required conditions. Formal notification thereof shall be made to the Secretary- General of the League of Nations, by the Registrar. This notification makes the place vacant. ART. 19. 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 duties, make a solemn declaration in open Court, that he will exercise his powers impartially and conscientiously. ART. 21. The Court shall elect its President and Vice-President for three years; they may be re-elected. It shall appoint its Registrar. The duties of Registrar of the Court shall not be deemed incompatible with those of Secretary-General of the Permanent Court of Arbitration. THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 55 ART. 22. The seat of the Court shall be established at The Hague. The President and Registrar shall reside at the seat of the Court. ART. 23. A session of the Court shall be held every year. Unless otherwise provided by rules of Court, this session shall begin on June 15, 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. ART. 24. If for some special reason, a member of the Court considers that he should not take part in the decision of a particular case, he shall so inform the President. If the President considers that for some special reason one of the members of the Court should not sit on a particular case, he shall give him notice accordingly. If in any such case the member of the Court and the President disagree, the matter shall be settled by the decision of the Court. ART. 25. The full Court sit except when it is expressly provided otherwise. If eleven Judges cannot 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. 26. Labour cases, particularly cases referred to in Part XIII. (Labour) of the Treaty of Versailles and the corresponding portions of the other Treaties of Peace, shall be heard and determined by the Court under the following conditions: The Court will appoint every three years a special chamber of five Judges, selected so far as possible with due regard to the 56 TEXTS. provisions of Art. 9. In addition, two Judges shall be selected for the purpose of replacing a Judge who finds it impossible to sit. If the parties so demand, cases will be heard and determined by this chamber. In the absence of any such demand, the Court will sit with the number of Judges provided for in Art. 25. On all occasions the Judges will be assisted by four technical assessors sitting with them, but without the right to vote, and chosen with a view to ensuring a just representation of the competing interests. If there is a national of one only of the parties sitting as a Judge in the chamber referred to in the preceding paragraph, the President will invite one of the other Judges to retire in favour of a Judge chosen by the other party in accordance with Art. 31. The technical assessors shall be chosen for each particular case in accordance with rules of procedure under Art. 30 from a list of " Assessors for Labour cases " composed of two persons nominated by each Member of the League of Nations, and an equivalent number nominated by the Governing Body of the Labour Office. The Governing Body will nominate, as to one- half, representatives of the workers, and as to one-half, repre- sentatives of employers from the list referred to in Art. 412 of the Treaty of Versailles and the corresponding Articles of the other Treaties of Peace. In Labour cases the International Labour Office shall be at liberty to furnish the Court with all relevant information, and for this purpose the Director of that Office shall receive copies of all the written proceedings. ART. 27. Cases relating to transit and communications, particularly cases referred to in Part XII. (Ports, Waterways and Railways) of the Treaty of Versailles and the corresponding portions of the other Treaties of Peace shall be heard and determined by the Court under the following conditions : The Court will appoint every three years a special chamber of five Judges, selected so far as possible with due regard to the provisions of Art. 9. In addition two Judges shall be selected for the purpose of replacing a Judge who finds it impossible to sit. If the parties so demand, cases will be heard and determined by THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 57 this chamber. In the absence of any such demand, the Court will sit with the number of Judges provided for in Art. 25. When desired by the parties or decided by the Court, the Judges will be assisted by four technical assessors sitting with them, but without the right to vote. If there is a national of one only of the parties sitting as a Judge in the chamber referred to in the preceding paragraph, the President will invite one of the other Judges to retire in favour of a Judge chosen by the other party in accordance with Art. 31. The technical assessors shall be chosen for each particular case in accordance with rules of procedure under Art. 30 from a list of " Assessors for Transit and Communications cases " composed of two persons nominated by each Member of the League of Nations. ART. 28. The special chambers provided for in Arts. 26 and 27 may, with the consent of the parties to the dispute, sit elsewhere than at The Hague. ART. 29. With a view to the speedy despatch 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 summary 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 retain 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 Arts. 4 and 5. 58 'TEXTS. If the Court includes upon the Bench no Judges of the nationality of the contesting parties, each of these may proceed to select or choose a Judge as provided in the preceding paragraph. Should there be several parties in the same interest, they shall, for the purpose of the preceding provisions, be reckoned as one party only. Any doubt upon this point is settled by the decision of the Court. Judges selected or chosen as laid down in paras. 2 and 3 of this Article shall fulfil the conditions required by Arts. 2, 16, 17, 20, 24 of this Statute. They shall take part in the decision on an equal footing with their colleagues. ART. 32. The Judges shall receive an annual indemnity to be determined 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. The President shall receive a special grant for his period of office, to be fixed in the same way. The Vice-President, Judges and Deputy Judges, shall receive a grant for the actual performance of their duties, to be fixed in the same way. Travelling expenses incurred in the performance of their duties shall be refunded to Judges and Deputy Judges who do not reside at the seat of the Court. Grants due to Judges selected or chosen as provided in Art. 31 shall be determined in the same way. The salary of the Piegistrar shall be decided by the Council upon the proposal of the Court. The Assembly of the League of Nations shall lay down, on the proposal of the Council, a special regulation fixing the conditions under which retiring pensions may be given to the personnel of the Court. 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. THE PERMANENT COURT OF INTERNATIONAL JUSTICE, 59 CHAPTEE 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 towards 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. The Members of the League of Nations and the States mentioned in the Annex to the Covenant may, either when signing or ratifying the protocol to which the present Statute is adjoined, or at a later moment, declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other Member or State accepting the same obligation, the jurisdiction of the Court in all or any of the classes of legal disputes concerning : (a) The interpretation of a Treaty. (b) Any question of International Law. (c) The existence of any fact which, if established, would constitute a breach of an international obligation. (d) The nature or extent of the reparation to be made for the breach of an international obligation. The declaration referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain Members or States, or for a certain time. 60 TEXTS. In the event of a dispute as to whether the Court has juris- diction, the matter shall be settled by the decision of the Court. ART. 37. When a treaty or convention in force provides for the reference of 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, establishing rules expressly recognised by the contesting States ; 2. International custom, as evidence of a general practice accepted as law ; 3. The general principles of law recognised by civilised nations ; 4. Subject to the provisions of Art. 59, 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 sequo et bono, if the parties agree thereto. CHAPTER III. PROCEDURE. ART. 39. The official language 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 that the case shall be conducted in English, the judgment will be delivered in English. In the absence of an agreement as to which language shall be employed, each party may, in the pleadings, use the language which it prefers; the decision of the Court will be given in French and English. In this case the Court will at the same time determine which of the two texts shall be considered as authoritative. The Court may, at the request of the parties, authorise a language other than French or English to be used. THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 61 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. He shall also notify the Members of the League of Nations through the Secretary-General. ART. 41. The Court 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 Court. ART. 43. The procedure shall consist of two parts : written and oral. The written proceedings shall consist of the communication to the Judges and to the parties of cases, counter-cases and, if necessary, replies ; also all papers and documents in support. These communications shall be made through the Registrar, in the order and within the time fixed by the Court. A certified copy of every document produced by one party shall be communicated to the other party. The oral proceedings shall consist of the hearing by the Court of witnesses, experts, agents, counsel and advocates. ART. 44. For the service of all notices upon persons other than the agents, counsel and advocates, the Court shall apply direct to the Govern- ment of the State upon whose territory the notice has to be served. The same provision shall apply whenever steps are to be taken to procure evidence on the spot. 62 TEXTS. ART. 45. The hearing shall be under the control of the President or, in his absence, of the Vice-President ; if both are absent, the senior Judge shall preside. ART. 46. The hearing in Court shall be public, unless the Court shall decide otherwise, or unless the parties demand that the public be not admitted. ART. 47. Minutes shall be made at each hearing, and signed by the Kegistrar and the President. These minutes shall be the only authentic record. ART. 48. The Court shall make orders for the conduct of the case, shall decide the form and time in which each party must conclude its arguments, and make all arrangements connected with the taking of evidence. ART. 49. The Court may, even before the hearing begins, call upon the agents to produce any document, or to supply any explanations. Formal note shall be taken of any refusal. ART. 50. The Court may, at any time, entrust any individual, body, bureau, commission, or other organisation that it may select, with the task of carrying out an enquiry or giving an expert opinion. ART. 51. During the hearing any relevant questions are to be put to the witnesses and experts under the conditions laid down by the Court in the rules of procedure referred to in Art. 30. ART. 52. After the Court has received the proofs and evidence within the time specified for the purpose, it may refuse to accept any further oral or written evidence that one party may desire to present unless the other side consents. THE PERMANENT COURT OF INTERNATIONAL JUSTICE. 63 ART. 53. 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 favour of his claim. The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Arts. 36 and 37, but also that the claim is well founded in fact and law. ART. 54. When, subject to the control of the Court, the agents, advocates 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. ART. 66. The judgment shall state the reasons on which it is based. It shall contain the names of the Judges who have taken pari in the decision. ART. 57. If the judgment does not represent in whole or in part the unanimous opinion of the Judges, dissenting Judges are entitled to deliver a separate opinion. ART. 58. The judgment shall be signed by the President and by the Registrar. It shall be read in open Court, due notice having been given to the agents. ART. 59. The decision of the Court has no binding force except between the parties and in respect of that particular case. 64 TEXTS. ART. 60. The judgment is final and without appeal. In the event of 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. The proceedings for revision will be opened by a judgment of the Court expressly recording the existence of the new fact, recognising that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground. The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision. The application for revision must be made at latest within six months of the discovery of the new fact. No application for revision may be made after the lapse of ten years from the date of the sentence. 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 submit a request to the Court to be permitted to intervene as a third party. 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 Kegistrar 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 (a). (a) League of Nations Official Journal, Jan. Feb., 1921, pp. 14 25. THE GROTIUS SOCIETY TRANSACTIONS. Vol. 1. 1915. Out of print. Vol. 2. 1915. 6S. net. Treatment of Enemy Aliens. The Appani. Principles Underlying Doctrine of Contraband and Blockade. War Crimes: Their Prevention and Punishment. 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