anarchic state"; that the new international court is urgently needed if peace is to be assured and that by staying out we are blocking the world's efforts for peace; that it is either this world court or none that we would be under no obligation to submit to the Court any dispute we desired to keep from it; that the Court has no serious connection with the League of Nations, and that we would make reservations expressly entering a caveat against any association with the League.

The opponents of our "joining" the Court assert that the Court is the child of the League and the step proposed would inevitably draw us into other commitments to the League; that it is intended by some of its proponents as an entering wedge to the League; that the jurisdiction of the Court is not obligatory, and that the strongest nations were the first to denounce the obligatory clause; that there is no provision for the enforcement of its decisions; that other nations can numerically outvote us in the Assembly in the election of judges, and that to visualize the Court as an agency for peace is an illusion.

The arguments thus advanced on both sides indicate that the issue is becoming political in nature. While that is neither avoidable nor to be deprecated in a democracy, it has a tendency to becloud the issue by generating waves of emotional morality which confuse rather than enlighten. It is believed that an analysis of the problem in the light of the professions of both sides may serve a useful purpose.

Underlying the arguments of the proponents of our joining the so-called World Court runs the major assumption that the Court would furnish a substitute for war, at least in part, that nations desire a court of this kind for the settlement of their disputes, and that the creation of the new court invites the nations to submit their differences to peaceful adjudication.

Before putting these assumptions to the test, let us see what existing institutions we already possessed for the judicial settlement of international disputes. From 1794 on, when under the Jay Treaty, several arbitrations with Great Britain were conducted, the United States has been a consistent exponent of arbitration. The six volumes of John Bassett Moore's History and Digest of International Arbitrations are a permanent monument

to our belief in the efficacy of arbitration. Until recently, when efforts to detract from its prestige were made by the assertion that arbitration was merely compromise, we entertained the belief that it was the most judicial method of applying law to the settlement of international controversies. Nor has further study done anything but strengthen that belief. When in 1899 the Hague Convention for the Pacific Settlement of International Disputes was drafted and the so-called Permanent Court of Arbitration was set up, the United States became a member and has contributed to the work of that Court four fairly important cases-the Pious Fund case against Mexico, the Orinoco Steamship Co. case against Venezuela, the Fisheries Arbitration with Great Britain and the Ship Requisitioning dispute with Norway. It will be recalled that under that plan the litigating nations select their judges ad hoc from a panel of some 120 potential judges, and that about twenty cases have been submitted to the court. Its jurisdiction and continued existence are in no way affected by the creation of the new Court. Although in recent years the Senate has exerted greater control than in our earlier days over the Executive submission of disputes to arbitration and has thereby retarded the process, we have nevertheless never regarded the procedure as anything but judicial. Article 15 of the Hague Convention for the Pacific Settlement of International Disputes contains the following definition of arbitration:

International arbitration has for its object the settlement of differences between States by judges of their own choice and on the basis of respect for law.

The Report of the Commission on this article reads:

To say that the arbitrator is a judge and acts according to law, is to say that arbitration is not applicable to every variety of dispute between the States.

This would seem to recognize the fact that arbitration is legal and judicial in character and on that very account its efficacy is limited to the settlement of only certain types of disputes, of a legal nature.

The professed shortcomings of the Permanent Court of Arbitration, first, in the fact that its personnel was elastic and ephemeral rather than fixed and permanent and, secondly, that the

element of compromise rather than law was deemed to dominate its deliberations and judgments, inspired the movement, largely originating in the United States, for the establishment of a socalled Court of Arbitral Justice, not to displace but presumably to supplement the Permanent Court of Arbitration. The idea failed of fruition at the Hague Conference of 1907 because of the inability to reconcile the principle of the equality of States with the principle of a fixed and necessarily limited number of judges, the same rock on which foundered the then proposed International Prize Court.

While there had always been among the advocates of judicial settlement a strong desire to bring about the obligatory submission of disputes, however limited their class, the Hague Convention was obliged, by the refusal of consent of most of the States, to omit any such provision. Jurisdiction was left entirely voluntary and optional. Nevertheless the Conference recorded a pious wish for obligatory submission and was "unanimous "—

1. In admitting the principle of compulsory arbitration;

2. In declaring that certain disputes, in particular those relating to the interpretation and application of the provisions of international agreements, may be submitted to compulsory arbitration without any restriction.

This was the position of the institution of judicial settlement when the Peace Conference met at Versailles. Inasmuch as the League was to be made an essential part of the Treaty, the Allied Powers dedicated to idealism certain sections of the Covenant, including Article 14, with its conservative precautions against submitting to judicial settlement anything that the Powers were unwilling to submit. Article 14 of the Covenant reads:

The Council [of the League of Nations] 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.

Under this authority, the Council called into conference the socalled Advisory Committee of Jurists, of which Mr. Root was a member, to formulate and submit an organic statute for the constitution of the new court. The Committee met at the Hague

from June 16 to July 24, 1920. It was made up of Mr. Adatci, Japanese Minister at Brussels, M. Rafael Altamira, Professor of Law at Madrid, Baron Descamps, a veteran in the movement for arbitration, Dr. Francis Hagerup, formerly Professor of Law at Christiania and a leading statesman of his country, M. de Lapradelle, Professor of Law at Paris, Dr. Loder of Holland, a member of the Dutch Supreme Court, Lord Phillimore, of the English Privy Council, M. Ricci-Busatti, legal advisor to the Italian Minister of Foreign Affairs and Professor of Law at Rome, and Mr. Elihu Root, former Secretary of State. Mr. Clovis Bevilaqua, Professor of Law at Rio de Janeiro, was unable to be present. The qualifications of these men are a guaranty at least of the sincerity of their work.

So strong a hold on the imagination had the idea of a permanent judicial body adjudicating disputes between nations obtained, that it was natural that the Committee should at once set about bringing into being the still unborn Court of Arbitral Justice of 1907 with its fixed personnel and alleged freedom from compromise and the long-desired obligatory jurisdiction. They provided in their draft statute for a fixed personnel of eleven judges and four deputies, to be elected by the Council and Assembly of the League-thus solving a problem of method theretofore insoluble and laid down in Article 35 certain principles which were to control the decisions of the Court-international treaties and conventions, custom exemplifying a practice recognized as law, general principles of law, judicial decisions and the teachings of jurists. Following the prescription of Article 13 of the Covenant, the Committee settled upon an obligatory submission of disputes in certain types of cases, commonly denominated as legal in their nature and therefore susceptible of judicial settlement, namely, 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 reparation to be made for the breach of an international obligation;

e. the interpretation of a judgment rendered by the Court,

together with power to determine any other disputes that the parties might voluntarily submit.

This then, was the great step in advance. Whereas in the arbitration treaties of the previous generation there were usually reserved from the obligation to arbitrate questions affecting independence, national honour and vital interests,—that is, every question deemed to be important, the new proposal provided for obligatory jurisdiction over and compulsory submission of certain well defined legal questions of a presumably non-political nature which no nation seriously interested in the promotion of judicial settlement and the limitation of diplomatic and political controversies could well insist on refusing to settle judicially. Moreover such obligatory submission was consistent with a fixed personnel of judges and prescribed sources of law for application to the suits instituted in the Court. Here was a definite advance over anything theretofore created, notwithstanding the limited nature of the Court's obligatory jurisdiction.

But what did the League, or rather the Council, do, when the statute, as drafted, was submitted to them for approval? They promptly eliminated from it the provision for the obligatory submission of disputes, on the alleged ground that it conflicted with the voluntary submission contemplated by Article 14 of the Covenant. Not even the restricted category of legal issues above mentioned were the larger Powers willing to submit at the demand of an opponent, thereby giving demonstrable evidence of their reluctance seriously to promote judicial settlement. They made the clause conferring obligatory jurisdiction optional, and fortunately some fifteen smaller States have agreed to it. It is the one justifiable hope for the growing usefulness of the Court. By other sections of the Treaty of Versailles and related conventions, the Court has what is said to be obligatory jurisdiction over certain questions involving aerial navigation, the protection of minorities, the African liquor traffic, certain aspects of the arms traffic convention, and the Barcelona waterways convention. The effect of these provisions has not yet been tested. Certain of the smaller Powers have likewise concluded bipartite treaties undertaking to submit unreservedly certain types of cases to compulsory arbitration. These also may furnish the Court with