The World Court Is Not a Court
Crabites, Pierre
October 29, 1930 THE COMMONWEAL 663 THE WORLD COURT IS NOT A COURT By PIERRE CRABITES IF AMERICANS understood that the World Court was not a court they would have nothing to do with it....
...nor shall it, without the consent of the United States, entertain any request for any advisory opinion touching any dispute in which the United States has or claims an interest...
...The men who sit on it are not judges...
...Any doubt upon this point is settled by the decision of the court...
...Any doubt upon this point is settled by the decision of the court...
...President Hoover, in declaring in his inauguration address that "the way should, and I believe will, be found by which we may take our proper place in a movement so fundamental to the progress of peace" as the Permanent Court of International Justice, appears to have assumed that the Hague Tribunal is a court...
...Their office makes of them defenders of the contentions of their people and the expounders of their case...
...All that point II does is to guarantee to America membership upon such electoral body as may be charged with the responsibility of electing the judges of this tribunal...
...It converts the judges of this august tribunal into champions of contending forces...
...It may not, however, be out of place to inquire as to what constitutes a court...
...It is margarine...
...And it will be noted that the reservations in no sense assure to the United States a spokesman upon this international court...
...They were: (1) that the composition of the court should remain unaltered no matter whether one or both of the parties are represented or not...
...That the United States will pay a fair share of the expenses of the court as determined and appropriated from time to time by the Congress of the United States...
...He asserts that the crux of the problem lay in the second half of the fifth reservation, that is, in the postulated right of the United States to prevent advisory opinions not only on questions in which America had interest, but also on those in which it claimed one...
...The incident was closed so far as the Department of State was concerned...
...The judicial conception of a court was surrendered on the ground of expediency...
...President Hoover has said that he would bring the matter of the United States' adherence to the World Court before the short session of Congress which meets in December, but more recently has indicated that he would postpone the issue until next year...
...Four methods of dealing with the problem were advanced...
...It should be so labeled...
...The reservations, as a whole, were accordingly rejected by the European powers...
...It is not butter...
...This section was only adopted after prolonged discussion...
...That the United States may at any time withdraw its adherence to the said protocol and that the statute for the Permanent Court of International Justice adjoined to the protocol shall not be amended without the consent of the United States...
...Such a step appears to jar with the attitude taken when the reservations were rejected...
...But the institution thus ushered into the world is not a court in the sense in which Americans use that term...
...Such a departure from judicial ethics turns these judges into lawyers who argue not at the bar but in the consultation room...
...They are merely national spokesmen who are expected to see that the point of view of each contesting party is "fully presented and understood...
...The decision of the Senate about which Secretary Root interviewed Europe sets forth that the United States is prepared to adhere to the Permanent Court of International Justice under the following five reservations : I. That such adherence shall not be taken to involve any legal relation on the part of the United States to the League of Nations or the assumption of any obligations by the United States under the Treaty of Versailles...
...The first method would have made the Permanent Court of International Justice a body similar to the Supreme Court of the United States, which may tomorrow pass upon a question involving the sovereignty of Arizona, Colorado and California when one or all of these states may have no representative on that body...
...In the light of these facts it is regrettable that Mr...
...And it seems to make it incumbent upon the judges whose nationals are not on trial to keep in touch with their foreign offices in order to learn whether their chancelleries have a "point of view which should be fully presented and understood...
...Obviously if a Hague judge is not a judge but the personification of "each contesting party," this solution would be as unfair to the United States as it would be unjust to Cuba to have an American forced on that island...
...The proposal could now be allowed to rest...
...This means that should Charles Evans Hughes, for any reason, cease to be a member of the Hague body, no American succeed him and a case arise involving the application of the Platt Amendment, and the United States and Cuba line up on one side and, say, Germany, on the other, America could be forced to accept a Cuban "inside spokesman" because Article XXXI says that Washington and Havana shall "be reckoned as one party only...
...3) that a national judge should be appointed ad hoc to sit where the party would otherwise be unrepresented on the bench...
...When he does so, congressmen will do well to remember that the World Court is not a court but a board of partizans...
...The old world appears to have been offended at the attitude of the American Senate...
...It is no answer to this criticism to point out that Article XXXI of the statutes before referred to says that: If the court includes upon the bench no judge of the nationality of the contesting parties, each of these may proceed to select or choose a judge...
...He may be correct...
...This point is determined not by the two allied litigants but by the court...
...This very statement brings out the fact that the duty of these World Court members is not to weigh arguments and to decide issues...
...Five days before the adoption of what is known as the Final Act, the official spokesman for the President declared that the administration would accept no modification in the reservations and that it had neither the authority nor the disposition to vary them...
...That the United States shall be permitted to participate through representatives designated for the purpose and upon an equality with the other states, members, respectively, of the Council and Assembly of the League of Nations, in any and all proceedings of either the council or the assembly for the election of judges or deputy judges of the Permanent Court of International Justice or for the filling of vacancies...
...The broad question which arose, says Fachiri, who has written about the constitution of the court, was whether, on the one hand, parties to cases before the court were to be entitled to have a member of their own nationality on the bench, or, on the other hand, the judges of the nationality of the parties should retire from hearing a case involving their own country...
...An institution framed in such a mold is basically pernicious...
...This right may, in certain cases, be nullified by the following paragraph which ordains that: Should there be several parties in the same interest, they shall, for the purpose of the preceding provisions, be reckoned as one party only...
...Europe construed the action of that body as indicating a lack of confidence in the impartiality of the Hague Tribunal if and when called upon to decide whether the United States had or had not an interest in a specific case...
...Arnold J. Toynbee writes in the Survey of International Affairs, 1926, that Europe found no serious difficulty in accepting the first four reservations and the first part of the fifth...
...The conference which refused to yield to the Washington point of view reached its official decision on September 26, 1926...
...Should there be several parties in the same interest, they shall, for the purpose of the preceding provisions, be reckoned as one party only...
...and (4) that a national assessor should be appointed ad hoc with advisory powers, but no vote upon the decision of the case...
...It is possible that they may have "instructions" to give their champions...
...This solution was not adopted...
...The distinguished authority already cited says that the presence of judges representing the nationality of the parties "will enable the point of view of those states to be fully presented and understood...
...This strikes at the very principle of judicial impartiality...
...So did the United States Senate when it adopted the reservations about which Elihu Root interviewed Europe...
...Certain resolutions accompany these reservations...
...The dominant note of this entire section is that "each contesting party" has a right to have a representative on the bench before which it appears...
...III...
...It means that the Senate will have to be consulted anew...
...The text of Article XXXI of the Statutes of the Permanent Court of International Justice, however, reads as follows: Judges of the nationality of each contesting party shall retain their right to sit in the case before the court...
...Root to have Europe reconsider its attitude...
...V. That the court shall, not render any advisory opinion except publicly after due notice to all states adhering to the court and to all interested states and after public hearing or opportunity for hearing given 664 THE COMMONWEAL October 29, 1930 to any state concerned...
...The American public understood that some one high in authority had then announced that: The gesture had been made, not without misgivings...
...Root has succeeded in getting Europe to adopt the formula which he has substituted for the Senate reservations...
...Fachiri attempts to justify this denaturalization by affirming that: The principles applicable to national tribunals do not extend integrally to an international court—some modifications are involved by the differences inherent in the nature of their respective functions...
...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 Articles IV and V. If the court includes upon the bench no judge of the nationality of the contesting parties, each of these may proceed to select or choose a judge as provided in the preceding paragraph...
...If the court includes upon a 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...
...They do not bear upon the question under inquiry...
...It would seem from the tenor of the note addressed by Secretary Kellogg to the powers on February 19, 1929, and from the terms of President Hoover's message that an attempt has been made by Mr...
...2) that the judge belonging to the nationality of a party should retire from the case...
...It may be the best possible available substitute for a court...
...Such a conception is incompatible with the attributes of a court...
...A court is a forum where an impartial judge or judges pass upon matters in which they have no personal interest...
...The ingredients of his soothing syrup are of no moment, but this diplomatic success of the former Secretary of State reopens the entire question...
Vol. 12 • October 1930 • No. 26
