Chapter V Two or more Powers may unite in the selection of one or more members of the Court. The same person may be selected by different Powers. The members of the Court shall be appointed for a term of six years, and their appointment may be renewed. In case of the death or resignation of a member of the Court his place shall be filled in accordance with the method of his appointment. According to the American plan, each Signatory Power was to appoint one member of the permanent tribunal. In the English proposal this number was made two, but the Committee on Arbitration, on motion of Professor Zorn on behalf of the German Empire, adopted the present provision, "not more than four." The reason for this amendment was given on behalf of the German Empire as being the desirability of having the Court composed not solely of international lawyers or jurists. As the Article stands a Government may, if it deems it advisable, appoint a military, scientific, or geographical expert, as well as a member of the legal profession, the only qualification being that each appointee shall be of recognized competence in questions of international law and enjoy the highest moral reputation, as well as be disposed to accept the duties of arbitrator. Acceptance of The latter qualification is of particular importance. the duties of It is to be supposed that each State will select men arbitrator. of the highest professional standing for these positions, and the question of payment, except when actually sitting on a particular bench of arbitration, is left entirely to the States themselves. The obliga tion of each appointee to accept the duty of arbitra- Chapter V tor, without regard to his personal convenience or the possible comparative insignificance of the questions involved, is absolute. Under this convention the highest professional talent of each civilized country is meant to be put at the disposal of every country in the world, large or small, rich or poor, for the settlement of international differences. In the beginning, and while the charm of novelty lasts, it is not likely that any arbitrator selected will refuse to act upon any question properly before the Court. If, however, the tribunal shall prove to be as successful as its promoters hope, a large number of questions of minor or technical interest may very likely be brought before it hereafter, and it should be clearly understood that in the opinion of the Committee an arbitrator will have no more right to select only important or interesting cases upon which to sit than a member of a jury panel in an ordinary Court. Under these circumstances the readiness of a member of the tribunal to leave what might very likely be a lucrative practice or employment at home, for the purpose of indefinite service at The Hague, should certainly be an element in the agreement between such arbitrator and the Government appointing him, on the subject of his compensation. by the highest The American plan for the permanent interna- Appointment tional Court of Arbitration provided for the appoint- Court in each ment of judges by the members of the highest court State rejected. in each of the Signatory States. This feature, which undoubtedly commends itself at first blush more than Chapter V any other to the public opinion of America, was Appointment found to be entirely impracticable, as well as absoCourt in each lutely unacceptable to the Continental Powers. by the highest State rejected. There is no highest Court for the entire Empire of Austria-Hungary, and the peculiar relations between the different parts of that Empire are not calculated to make joint action by the two highest Courts practicable or desirable. In Russia the highest Court consists of a senate of one hundred members, whose coöperation in the matter of appointments would contradict all national traditions. Similar objections, based, however, entirely upon the anticipated actual workings of the scheme, were raised by many members of the Conference. The American representative on the Comité d'Examen thereupon proposed the amendment in a permissive form, to the effect that it should apply wherever practicable or wherever the circumstances permitted. But even this plan was emphatically negatived, the only vote in its favor being that of the United States of America. The British Delegate, Lord Pauncefote, abstained from voting, explaining that while he favored the idea in the abstract, he was convinced that it was impossible of application in Continental countries. During the discussion one representative after another of the States having members on the Comité d'Examen announced that the idea had been suggested to his Government, but that it had been received with positive disfavor, not only because of its alleged impracticability, but as being, according to Continental ideas, vicious in principle. The organization of the Courts in nearly all Continental countries is based upon the Chapter V traditions of Roman jurisprudence, and these do not favor any action on the part of a judicial tribunal having reference to the selection of a man or men for any particular purpose, even if the latter be judicial in its nature. Furthermore, in several large European States, notably Germany, the rules governing the practice of the law are such as to prevent the members of the highest Court from having any direct knowledge of the ability or reputation of many of the most noted judges and lawyers in the country, since practice before the highest Court is restricted to residents of the city of its location and to members of its particular bar. Under these circumstances the members of these particular Courts are not, like the justices of the American Supreme Court or the members of the Privy Council of Great Britain, the best possible advisers, with reference to the selection of a creditable representative upon the great tribunal, and it was even stated that they were, in many countries, about the last authority to whom the appointing power would be likely to turn with success for such advice and coöperation. Out of courteous regard for the United States, and in order to recognize the fundamental idea upon which this proposal was based, the Comité d'Examen directed its reporter to emphasize in the official report the importance of a complete disregard of all political considerations in the choice of members of the Court. The American representative cordially acquiesced in this decision. Chapter V Manner of selection of the members tribunals. ARTICLE 24. Whenever the Signatory Powers wish to have recourse to the permanent Court for the settlement of a difference that has arisen between them, of particular the arbitrators selected to constitute the Tribunal which shall have jurisdiction to determine such difference, shall be chosen from the general list of members of the Court. If such arbitral tribunal be not constituted by the special agreement of the parties, it shall be formed in the following manner: Each party shall name two arbitrators, and these together shall choose an umpire. If the votes shall be equal, the choice of the umpire shall be intrusted to a third Power selected by the parties by common accord. If an agreement is not arrived at on this subject, each party shall select a different Power, and the choice of the umpire shall be made by the united action of the Powers thus selected. The Tribunal being thus constituted, the parties shall communicate to the Bureau their decision to have recourse to the Court, and the names of the arbitrators. The Tribunal of arbitration shall meet at the time fixed by the parties. The members of the Court, in the discharge of their duties, and outside of their own country, shall enjoy diplomatic privileges and immunities. It is believed that this Article will be found to provide for every possible eventuality in any actual dispute. It is quite probable that in many cases the four arbitrators selected by the parties may not be able to agree among themselves upon the subject of the umpire. It is also conceivable that the same third Power charged with the duty of selecting the umpire would not be agreeable to both litigants. It is, however, hardly probable that two neutral Powers, each |