THE CONSTITUTION OF AN INTERNATIONAL COURT OF JUSTICE

REMARKS BY HON. ELIHU ROOT BEFORE THE ADVISORY COMMITTEE

OF JURISTS AT THE HAGUE, JUNE, 1920

Remarks on June 17, 1920

Resolved, That the committee adopts as the basis for consideration of the subject referred to it, the Acts and Resolutions of the Second Peace Conference at The Hague in the year 1907.

That the provisions of the several plans for an International Court of Justice already elaborated by representative jurists of Sweden, Norway, Denmark, Holland, Switzerland, Germany, Austria, be laid before the committee and considered as the subjects to which they respectively relate, are taken up for consideration.

I have offered this resolution in entire harmony with the view expressed by the president of the committee as to the consideration of the important questions which underlie the whole subject referred to the committee.

The resolution was drawn up for the accomplishment of several objects: (1) To give notice to all the world that this committee will consider the great subject referred to it, not as an opportunity for the expression merely of our individual opinion, but under a sense of duty to build upon the basis of the past development of the subject to which so many members of the committee have already contributed so well. I would be glad to have the world know that we begin here again the course of development of the law of nations, the principle of justice in international affairs. There is throughout the world much respect and reverence for the self-sacrifice and devoted work done at The Hague in the conferences of 1899 and 1907. I think the committee should make clear the relation which it means to bear to all that work and all that was accomplished then, and I am sure that the clear understanding that the committee is beginning its labors in this spirit will be gratefully received by the people of all the civilized countries of the world. I know that it will be so among the people of my own country.

(2) We have received from the Secretariat of the League of Nations, in printed form, plans for a Court of International Justice having very high authority; the jurists of Norway, Sweden, Denmark, Holland and Switzerland have met and discussed this very subject and they have formulated their conclusions and have formally communicated them to the Secretariat of the League of Nations, and these conclusions have been transmitted to us. Also, Germany and Austria have sent expressions of their views. In some way we should indicate to all these nations the sentiment of profound respect that we have for the work that they have done. We should treat their recommendations

or suggestions with due respect and not pass them sub silentio. This resolution was designed to carry to the minds of our friends in these countries the knowledge that we recognize the work that they have done with great respect and with the purpose of due consideration. Another idea is involved in the resolution. It is that there may be something invidious if we try to select among these plans one rather than another for a basis of discussion. There can be nothing of that kind if we take the conclusions of all countries reached at the Second Hague Conference. And we here come from but a few countries. We cannot come from more than ten if there are only ten of us. But let us see that the people of other countries from which no citizen sits here understand that we are going to consider in our work not only the feelings of the people of the countries from which we come, but the feelings and the opinions of the people of all countries. Let us lay down in some such declaration as this a broad foundation of unanimous international consideration of international subjects. I hoped that this resolution would carry to the people of all countries the idea that we were going to start by considering as the basis of our discussion the conclusions that they had taken at the Second Hague Conference. The working out of this resolution would be precisely as the president has suggested, that we take up the provision and form of court adopted at The Hague as the basis for discussion. For example, if we determine to take up first the subject of the jurisdiction, the competence of the court, the provisions of the Hague Conference would be the basis of discussion and the provisions of the five-Powers plan would be read as relevant to that. Whatever there may be in the Austrian or the German plan relevant to that, should also be read, and then we could proceed to our discussion. The object, the effect of the resolution will not be so much to affect the order of our work as it will be to declare the principal point from which we propose to start.1

Speech of June 18, 1920

We have now come face to face with the difficulty which prevented the adoption of the plan for a permanent court by the Second Hague Conference of 1907. That difficulty was the unwillingness of the large states to permit the members of the court to be named by the majority, which would always be composed of representatives of the smaller states, and, on the other hand, the unwillingness of the smaller states to permit to the larger ones a preponderance of power and authority, which was deemed to be inconsistent with the theory of equal rights of sovereign states. One view has been stated by a part of our colleagues, and the other by another part, and those two views are opposed. 1 The resolution as adopted by the Committee reads as follows:

"The Committee begins its deliberations by rendering in the first instance homage to the labors of the Peace Conferences of The Hague, which have already prepared with exceptional authority the solution of the problem of the organization of a court of international justice. "Ready to consider in addition the projects emanating from governments, from conferences initiated by governments, of scientific international associations, and of jurists of every nationality, whose labors have preceded its own, it will take note of all sources of information which are at its disposition in order to justify the confidence of the Society of Nations."

A statement of them does not solve them-it does not solve the question. The simple adoption of one view by itself would apparently send the plan of the court to the Council of the League of Nations with the most difficult question unsolved.

It seems to me that both views are, in a broad sense, right. We must accept and sincerely support the equal rights of every sovereign state-that is the foundation of the law of nations. On the other hand, we must realize that an aggregation of fifty millions or one hundred millions of people will have more active interest, more important affairs, dependent upon the action of the court than an aggregation of one million or one hundred thousand; so that the equality of sovereign states in law does not agree with the inequality of practical interests which depend, not upon the grouping of individuals in states, but upon their production, their trade, their commerce, their activity. The two do not fully agree and each has some right to its view.

For example, we may say that in the cases of arbitration which have been brought before the present Arbitration Court at The Hague, only few countries have been concerned, and doubtless there are many countries whose mode of life and whose international affairs are such that they will seldom, if ever, have recourse to any court. Now, our problem, it seems to me, is to reconcile these two views, which approach one another from very different points, the one coming from the constituted and indisputable point of the legal equality of states, and the other from the practical point of view of a deep and extensive practical interest in the subject. Can we not find some mode of constituting this court which will be consistent with both, and which will preserve the true interests of both? That, it seems to me, is the most serious problem which is committed to us. Similar situations frequently arise in life. A number of citizens of any free country have to determine some question regarding which they have an equal right because they are equal politically with equal voice in the affairs of their country. At the same time, some of them have a much greater interest in the matter which is to be disposed of than the others. It is not at all uncommon that in the exercise of the free right of equal citizenship such dispositions of practical matters be made as to recognize their greater practical interest. Can we not accomplish that task?

Allow me to refer to an example which naturally arises in the mind of an American. When the present Constitution of the United States was formed there was precisely the same kind of question raised in the convention of 1787. We were all independent sovereign states-some large, some small. The large states were unwilling to permit the majority of the smaller ones the control which would come from equal representation, and, on the other hand, the smaller states were unwilling to allow to the larger ones the preponderance of power which would arise from the recognition of their greater population and wealth. That impasse was disposed of by the creation of two chambers, in one of which the states are represented equally, and another in which the population is represented without reference to the sovereign states in which the people reside. Now, I mention that, not for the purpose of proposing that disposition here, but for the purpose of illustrating the way in which such a question has been

disposed of, and disposed of so that for 130 years it has worked practically and satisfactorily. That disposition has been followed by many nations. In Central and South America similar questions have been solved in a similar way; and in every country where there is a bi-cameral legislative body, you will find that there is a reconciliation, by means of the two chambers, of certain conflicting ideas. Now, that is the method of development of political freedom. That is the method of the development of civilization,-finding practical methods of reconciling, for useful activity, conflicting political theories. And that is our task.

I must confess that after much groping, much searching, among many proposals, I have not yet found any which is entirely satisfactory to me, but I have found so many which come very near, that I am certain we will reach it by discussion, by comparison of views, by the enlightenment which comes from hearing the expression of opinion from different points of view. I am confident from what has been done that we will reach a practical solution, although I cannot get to it now completely. There is some objection to every suggestion. I wish very much for an opportunity to study the suggestions made by Baron Descamps yesterday and those made by M. Adatci. My hearing them, with my defective knowledge of spoken French, has not been sufficient for me.

I think there is another thing, however, that may now be said.

a committee invited by the Council of the League of Nations to prepare a plan, which is to be formulated and submitted by the Council to the members of the League for adoption; it is to be a plan for the establishment of the Permanent Court of International Justice. Now, let me say in passing, that I believe that the court we create should be a court to coëxist with and bear due and appropriate relations to the existing Permanent Court of Arbitration at The Hague -not to be substituted for it, but to form part of the same system of international judicature.

I propose not to discuss but to suggest for consideration this question: How far should our plans articulate with the existing organization of the League of Nations, the formation of the Council, the formation of the Assembly? Should we form a plan having close relation to that political organization, or should we form a plan which ignores that organization? It does not follow from the fact that the organization of the League of Nations is political, excepting Articles 13 and 14 relating to the court, that there can be no intimate relations between that political authority and the formation of the court. It may be that we can find there the solution of our question. At Paris, the Peace Conference secured a modus, which did not satisfy entirely both views, in the constitution of one chamber, the Assembly in which every Power great and small is equal to every other; and another, the Council, in which there is a preponderance of the great Powers.

Now, is it possible that the Council and the Assembly will accept and put into force the plan of the court if the plan ignores their existence? How are courts constituted originally? However perfect may be the distinction between judicial and political powers, the personnel of the judiciary must necessarily have its origin in the political power. In my own country, the justices of the