Considers it highly desirable that satisfaction be given to the first vœu adopted by the Second Peace Conference in favor of the establishment of a Court of Arbitral Justice.1

It will be observed that there is no provision in the original or revised Convention for the pacific settlement of international disputes for the use of force either to compel nations to submit their disputes to the so-called Permanent Court at The Hague or to an international commission of inquiry, and there is likewise no provision for the use of force to secure compliance with the decision of the temporary tribunal of the so-called Permanent Court or to compel the nations to take further action upon the report of the international commission. The Conventions for the pacific settlement of international disputes state simply that the agreement to arbitrate implies the engagement to submit loyally to the award (Article 18 of the Convention of 1899; Article 37 of the revised Convention of 1907).

Experience had with arbitration justifies the action of both Conferences in this respect, for the awards of arbitral tribunals have invariably been complied with, although there may have been grumbling and delay and, in some cases, a modification of the award itself. If such is the result of experience it would seem wise to allow experience to decide whether, in the future, a sanction be necessary in the matter of awards, and it is also better to allow experience to decide whether some form of sanction be necessary in order to compel nations to submit their disputes to the so-called Permanent Court, and their justiciable disputes to a permanent international court, when they shall have specifically agreed to do so. The American delegation to the Second Hague Conference drafted several articles which provided that nations might resort freely to the permanent court to be created, and that the defendant nation might, upon the application of the plaintiff nation, be invited by the court to attend and to litigate the question, not summoned or hailed before the court.

The Articles referred to, which have had the good fortune to meet with the approval of eminent publicists, are:

ARTICLE 12. The Permanent Court of Arbitration shall not be competent to receive or consider any petition, application or communication whatever from any person natural or artificial except a sovereign State, nor shall it be competent to receive any appli

1 Annuaire de l'Institut de droit international, 1912, pp. 603-4. 2See an article by the distinguished Belgian publicist, Professor Nys, entitled "The Development and Formation of International Law," in the American Journal of International Law, vol. 6, pp. 308-10.

cation or petition from any sovereign State unless it relates exclusively to a difference of an international character with another State which diplomacy has failed to settle and which is not political in character and does not affect the honor, independence or vital interests of any State.

ARTICLE 13. The Permanent Court of Arbitration shall not take any action on any petition or application which it is competent to receive unless it shall be of the opinion that a justiciable case, and one which it is competent to entertain and decide and worthy of its consideration, has been brought before it, in which case it may in not less than thirty or more than ninety days after presentation of the petition invite the other sovereign State to appear and submit the matter to judicial determination by the Court.

In the latter event the State so invited may (a) refuse to submit the matter; (b) refrain from submitting the matter by failing for days to make any response to the invitation, in which event it shall be deemed to have refused to submit the matter; (c) submit the matter in whole, or (d) offer to submit the matter in part or in different form from that stated in the petition, in which event the petitioning State shall be free either to accept the qualified submission or to withdraw its petition or application, and shall signify its election within a time to be determined by the Court; (e) appear for the sole purpose of denying the right of the petitioning State to any redress or relief on the petition or application presented that is to say, it may except for demur; in case the court does not sustain this, it shall renew the invitation to appear and submit the matter.

ARTICLE 14. In case, however, the States in controversy can not agree upon the form and scope of the submission of the difference referred to in the petition, the Court of Arbitration may appoint, upon the request by either party, a committee of three from the members of the Administrative Council, none of whom shall represent the States involved, without suggestion from either party, and the committee thus constituted shall frame the questions to be submitted and the scope of the inquiry, and thereafter if either party shall withdraw it shall be deemed to have refused to submit the matter involved to judicial or arbitral determination.

ARTICLE 15. The Administrative Council shall transmit to every signatory power a copy of every petition which may be submitted to the Permanent Court of Arbitration, and any power affected thereby shall have the right to present through the Administrative Council any matter bearing on the question involved which it sees fit to do, and any matter so presented shall be transmitted by the Administrative Council to every signatory Power.

The Permanent Court of Arbitration was installed in 1902, ready for cases that might be submitted to the temporary tribunal, formed from the list of judges inscribed in the International Bureau at The

Hague. Two republics of the Western Hemisphere were the first to avail themselves of the institution and to confess their faith in this method of settling their disputes. Porfirio Diaz, President of Mexico, and Theodore Roosevelt, President of the United States of America, submitted the so-called Pious Fund Case1 in 1902 to the first temporary tribunal, formed from the list of judges composing the Permanent Court of Arbitration, thus starting this institution upon what is hoped will be a great and a beneficent career.

Whether the awards of the various temporary tribunals which have since been formed justify the expectations of the diplomats and jurists who founded it at the First Conference and confessed their faith anew in its efficacy at the Second Conference at The Hague, is left to the judgment of the intelligent reader. But the undersigned is unwilling to close this introduction without stating his opinion that the institution has unquestionably succeeded, although he is of the equally firm opinion that it can only be regarded as a first step, albeit a very long one, toward the creation of a truly permanent international court of justice, which, to use the happy phrase of Elihu Root, will be composed of judges acting under a sense of judicial responsibility. That the day may not be far distant when this consummation shall take place should be the hope and prayer of every partisan of justice and of every lover of his kind. We must have agencies which will settle the disputes between nations without jeopardizing civilization, for we dare not forget that although "there are many nations there is only one civilization."

JAMES BROWN SCOTT, Director of the Division of International Law.

WASHINGTON, D. C.,
February 28, 1916.

1Post, p. 1.

THE HAGUE CONVENTIONS OF 1899 AND 1907 FOR THE [ORIGINAL TEXTS1]

1U. S. Statutes at Large, vol. 32, p. 1779; vol. 36. p. 2199. Italics indicate differ ences between the Conventions of 1899 and 1907.

PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES [OFFICIAL TRANSLATIONS1]

1These translations are the official translations of the Department of State of the United States (Ibid.), slightly revised in order to indicate by italics in the English texts also the differences between the two Conventions so indicated in the French texts.