of international disputes

The new era of international courts
by
Simeon E Baldwin., M.A. LLD
of NEW Haven , Connecticut.
Professor of Constitutional and Private International Law in Yale University,
Director of the Bureau of Comparative Law of the American Bar Association}
formerly Chief Justice of Connecticut, and President or the American
Historical Association and the International Law Association.

AUGUST, 1910, No. 1

Published Quarterly by American Society for Judicial Settlement of
International Disputes.

Baltimore, U.S.A.

The New Era of International Courts

With the twentieth century mankind has
entered on a new era. During a long course
of years nations have become familiarized to
the settlement of differences between them
by means of arbitration. But international
arbitration is a rough measure of justice. Too
much is left to the discretion of the arbitrators.
Too much is ordinarily left to their prejudices.
In the usual tribunal constituted for this purpose, each of the nations which are parties to
the controversy names one of the arbitrators,
and his fellow citizens generally expect him to
vote in its favor when the decision is to be
made.
3

On the other hand, the umpire, or if there be
but one arbitrator, the person who fills that
position, is strongly tempted to assume the
position of a mediator rather than that of a
judge.
An incident in American diplomatic history
strongly illustrates this tendency.
The Revolutionary War left the Northeastern boundary of the United States ill defined.
Our treaty of peace with Great Britain described it as running east by a line drawn from
the source of the river St. Croix, directly north
to the "highlands, which divide the rivers that
fall into the Atlantic ocean from those that fall
into the St. Lawrence."*
But where were these highlands? Great
Britain claimed that they could be found in an
eminence called Mars Hill, although it did not
serve as a water shed. The United States
claimed that the term "highlands" meant the
actual water shed on the meridian line, which
was nothing that could be called a hill. In
1828 the King of the Netherlands was ap* cTVIcMasters Hist, of the People of the United States, V, 4€5.

4

pointed as the sole arbitrator, under a convention with Great Britain, providing that the
points of difference should be referred "to
some friendly sovereign or State, who shall
be invited to investigate and make a decision
upon such points of difference."*
The decision of the King was made in 1831.
It did not attempt to locate the "highlands"
mentioned in the treaty of 1783, but drew an
arbitrary line, which divided the disputed
territory between the United States and Great
Britain, thus giving to the latter a large area
which was claimed by the State of Maine.
Great Britain accepted the award. President
Jackson communicated it to the Senate in a
special message, in which he observed that he
transmitted it for their consideration that they
might determine whether they would "advise
submission to the opinion delivered by the
sovereign arbiter and consent to its execution,"
and sent with it some other papers that they
might "the better be able to judge of the obligation as well as the expediency of submitting
*c7Wessag-es and Papers of the Presidents, II, 547.

5

to or rejecting the decision of the arbiter/'
adding that he "had always determined, whatever might have been the result of the examination by the sovereign arbiter, to have submitted the same to the Senate for their advice
before he executed or rejected it."*
The result was that the United States refused to accept it, on the ground that it did
not decide the points submitted, but simply
imposed a compromise. The matter then remained a constant cause of dispute until 1842,
when the two governments agreed on a conventional line. The land in controversy comprised some 12,000 square miles. The conventional line of 1842 confirmed our title to some
7,000 miles and that of Great Britain to the
balance. The award of the arbitrator had
given us about 8,000 square miles, f
This is not the place to inquire whether the
United States were justified in refusing to accept the award. The incident has been mentioned as a good illustration of the difference
*Id. II, 559.
tcTVIcMasters, VI, 431.

6

between an award of arbitrators and a judicial
decision.
A judicial tribunal proceeds by certain definite rules. There is, in the normal condition
of things, a plaintiff and a defendant. The
plaintiff has the duty of proving his case. If
he does not prove it, the judgment must go
for the defendant. If the question be one of
title to land, the plaintiff must recover, if at
all, on the strength of his own title, not the
weakness of the defendant's. So if either party
is able to show that the point in dispute has
been settled by some authority to which it was
previously referred, he prevails on the principle of res adjudicata. The thing having been
already adjudged, the former judgment is conclusive. An arbitrator may adopt these rules:
a judge must.
The first case brought before the Permanent
Court of Arbitration at the Hague (that of the
United States against Mexico) was disposed of
under this doctrine of res adjudicata. But the
arbitrators were not bound to refuse on that
ground to hear testimony as to the merits of
7

the claim. They did so as a matter of discretion. Had they been sitting as judges of a
court of justice, they would have been bound
to do so as a matter of right; and therefore,
inasmuch as every lawyer would know that
such must be their rule of conduct, Mexico,
had she been in a position such that, in case
of declining to pay the claim against her, she
could have been summoned before a court of
justice, would have paid it voluntarily.
For the settlement of controversies between
private individuals, resort is seldom had to
arbitration. It is a mode of procedure that
has been always well known, but a trial before
a court is generally preferred, even when both
parties are desirous of obtaining a speedy and
final determination of their dispute. They
prefer it, because it provides judges chosen
without reference to their attitude towards the
controversy in question, and who are bound
to follow fixed rules, adopted long before the
controversy arose, for no other reason than
that they were believed to be the rules of
justice.
8

No nation, in the present state of international law, can bring another nation before a
court against its will. But it will be a great
step forward, if a court can be provided, before
which one nation, having a controversy with
another which diplomacy has failed to adjust,
can request the other nation to appear for
the final adjudication of their rights. Public
opinion—now so great a world-force—may
then prove sufficient to procure compliance
with such request.
The American Society for the Judicial Settlement of International Disputes would never
have been formed, had its founders not felt
that a new period of modern government has
begun.
It is difficult to grasp fully the immense
advances in the moral forces of the world
which have been achieved in recent years.
They have made possible much that previously
would have been regarded as impossible.
They have consecrated the universal power of
public opinion. They have everywhere and
overwhelmingly increased the influence in
9

public affairs of the common people. They
have assimilated all governments. They have
associated all governments.
The public opinion of the world has been a
thing of slow growth. It has now suddenly
developed into an overwhelming power. The
bud may be long in the leaf, but the day will
come when it bursts into a new life and
blushes into flower.
The nations have, of late, been brought together, as never before, in personal contact,
through international conferences and congresses.* Their peoples have been brought together, as never before, by the new facilities
for international intercourse, that have almost
annihilated time and space.
The enthusiasm of a public assembly not
only stirs the heart. It creates something.
So whatever brings great events to the knowledge of many men at one moment of time
awakens a common feeling, and each acting
upon each, they are apt to come to a common
judgment. Until the middle of the nineteenth
century, this was only possible for those who
IO

were brought together in the same place, or
within some narrow circle of territory through
which news might radiate with equal speed.
It was not till the telegraph had spanned the
sea that all countries and all mankind, or all
who count for the direction of governments,
could be reached by the same message at the
same time. Then first the world could look
at things from the same viewpoint and act
under the impulse of common sympathy.
Then first there came with power a public
opinion of the world to influence the politics
of the world; and to influence was, before long,
to control.
This new political force has tended to break
down the importance of every particular government. To a certain extent it weakens its
position as an independent sovereign. It regards it as a part of a larger whole. In such
ways it has stamped itself on the form of
modern confederations or empires. It is a
unifying power and therefore a centralizing
power. It created Italy. It made the German
empire possible. It made Canada ask for a
ii

strong Dominion government, with a court to
which lies an appeal in all matters from all
provincial courts. It made Australia, in framing her new commonwealth on the general
lines of the Constitution of the United States,
go farther, and allow her States to be sued
before the Federal court by private individuals.
It was but carrying these ideas a little farther to push them into the domain of international relations. There they took shape first
in the constitution of the Hague Tribunal of
Arbitration. Next they produced, in the
Hague Conference of 1907, the conventions
for an International Prize Court and the International Court of Arbitral Justice.
The International Prize Court is primarily a
court of appeal, to do better justice in a small
class of law suits, affecting rights of private
property. The project of an International
Court of Arbitral Justice is yet incomplete and
its name seems to contemplate proceedings
more or less in the nature of a voluntary arbitration. The first object of the friends of international peace must be to secure the per12

fecting of this project. The next should be to
labor to make it in practice a true court of
justice in the closest sense.
To hope to effect this would, a few years
ago, have been justly regarded as visionary.
But what has been already attained places it
fully within the bounds of possibility. Success
in any field means an advance towards the
occupation of another field. Progress in civilization means an abandonment of what had
previously been regarded as the limits of well
ordered society. These are new times. They
call for new institutions.
For the history of the world, the Middle
Ages ended only with the nineteenth century.
And even as applied to Europe, or to Christendom, does not mediaevalism need to be redefined? This term, Middle Ages, was introduced to signify the ages that lie between
ancient and modern civilization. But when
did modern civilization begin? It began, according to our forefathers, when printing and
gunpowder, absolute monarchy and church reform, came in. But is this true? Cannot
13

we, from a later and higher point of view,
measure the progress of events and of ideas,
with greater accuracy?
Modern civilization began, not so much
when printing was invented, as when its full
power became felt in the general education of
the common people; not so much when feudalism gave way to absolute monarchy as when
absolute monarchy was replaced by constitutional government; not so much when church
reform began in Europe as when universal
principles of right in all religions began to be
recognized the world over; not so much when
gunpowder began to displace the spear and
shield as when the higher forces of justice and
public opinion began to displace gunpowder,
and make laws for nations.
Constitutional government is simply a sign
of public sentiment. That is its vital breath.
It is the sentiment of a particular people.
But let many peoples show that sentiment,
each for itself, and sooner or later there naturally follows a general sentiment of all peoples
that, as all governments rest on the consent of
14

the people and exist to promote the good of
the people, so the relations between different
peoples should be so ordered as to promote
the general good of each of them, and of each
of them alike.
Kant, in the eighteenth century, declared
that there could be no universal peace until
every nation had adopted republican institutions. That was the first condition. It must
come to remove one great cause for war—the
promotion of individual or dynastic interests.
So long as one absolute monarchy existed, and
existed in a nation content to endure it, no
neighboring nation could feel secure without
ready means of self-protection.
We of the twentieth century hardly yet
realize that the condition which Kant demanded has now been fulfilled. Every civilized power has to a greater or less extent
adopted republican institutions; and from uncivilized powers those which are civilized have
nothing to fear. Russia, Turkey, China,
Persia, even little Montenegro, have one after
another identified themselves with the spirit of
15

a new age. Constitutional government has become the accepted form. The world has begun
to feel and act as a unit. History is no longer
to be provincial. Europe and European settlements are not the only social forces to be considered when the historian forecasts the future
or measures the past. Men feel themselves,
as never before, citizens of the world.
All this has come about in the natural course
of things. We are entitled, at last, to say that
the Middle Ages have closed, or at least are
closing, both because of the changes that have
been accomplished and of the way in which
they have been accomplished. Mankind has
learned in the twentieth century, for the first
time, to measure things by a new philosophy.
The general acceptance in our time of the doctrine of evolution is enough alone to mark the
beginning of a new era. Goethe, a hundred
years ago, was its prophet, but it was left to
Darwin to put it before the world in a form so
simple and convincing that it could not long
be resisted by thoughtful minds. It assures to
us our achievement, by processes which it
16

helps us to trace and to verify, of a new civilization radically different from ancient civilization, and essentially different from that whose
history closed with the nineteenth century.
That was indeed a century of rapid advance.
It struck human slavery out of existence in
every country where civilization exists.
It created the modern newspaper, which
keeps every man in daily touch with current
events in every quarter of the globe.
It created those agreements of nations to
promote international intercourse, of which the
Universal Postal Union was an early instance,
and the Union for the Protection of Industrial
Property a later one.
It created those unofficial gatherings of citizens of different nations to discuss matters of
universal interest, which in recent years have
given so many opportunities for a wide comparison of views on questions of a scientific,
economic or philanthropic character.
It closed with the first Congress of the
Hague to promote the peace of the world, from
17

which proceeded the organization of the
Hague Tribunal of International Arbitration.
The nineteenth century did a great work,
and still we can now see that it was but a forerunner. Its record is that of a progress in
the evolution of modern government. Popular
education has borne its first fruit in constitutional government. It is beginning now to
bear more fruit in the better regulation of
international relations.
We see for ourselves what Kant foresaw for
us, that when personal and family ambitions
can no longer determine the policies of nations, the motive from which most of the wars
of mankind have been fought disappears.
The Holy Alliance presented to Christendom
the last instance of a threatened war of religion. When Brazil incorporated into her
constitution of government a perpetual prohibition of the acquisition of territory by conquest in a war fought in alliance with another
power, she put in words what was becoming
the conviction of all nations as to the moral
limitations of the right of the stronger.
18

Modern government is designed to assure to
all the people, in equal measure, security of
person and property. It does this by laying
down and enforcing certain rules, which we
call law. The same sentiment which requires
the personal and property rights of individuals
to be thus respected leads next to the requirement that the personal and property rights of
every nation shall, in like manner, be respected
by every other nation.
It was therefore a natural step in the evolution of civilization for the leading nations of
the world to assemble, as they did, at the
Hague in 1899, to consult as to whether this
requirement might not be the subject of some
definite statement of international doctrine, or
of some definite rule of international procedure. W e may say even that it was a necessary step in the course of that evolution. The
world could not do otherwise, if it were to be
true to itself.
A logical and necessary outcome of constitutional government for any people is a change
in their manner of dealing with other peoples.
19

What a sentiment of justice and the force of
public opinion have done for each nation
within itself, it is next seen that they can do
for all nations in respect to the government of
the world. This is, at least, no longer to be
pronounced impossible.
Modern civilization, unlike that of the
Middle Ages, unlike even that of a hundred
years ago, is of a universal type. In the usages
of society, the standards of art and literature,
the conception of the heroic, the recognition of
the just and of the unjust, the processes of
scientific research, the distribution of the functions of government, the methods of commercial intercourse, the tendency at all points is
towards at least outward uniformity.
In this spirit the two Congresses of the
Hague of 1899 and 1907 have pushed forward
the domain of public international law. The
four Congresses of the Hague of 1893, 1894,
1900 and 1904 have framed for Europe, and
Europe has accepted, a body of rules which
have provided uniformity in doctrine on what
had been the subject of great differences in
20

private international law. For a large part of
South America, the Congress of Montevideo
in 1888 and 1889 had already accomplished a
similar task, the New World here setting the
example to the Old.
A diplomatic conference of all the great
maritime powers and most of the lesser ones,
held at Brussels in 1909, has set in order the
law of the sea, respecting matters of collision
and salvage, the liabilities of shipowners and
maritime liens. If, as is probable, its work is
ratified by the powers concerned, not only
rules of right but rules of remedy as to these
subjects will hereafter be fixed and universal.
If procedure in civil actions can be regulated
in such ways by general, world-wide rules for
private suitors, it can no longer be regarded
as chimerical to look for a world-court of
nations, proceeding to deal with their differences, as a court, by fixed rules, known to all,
and respected by all, as the agreed rules of
international justice. We have indeed such a
court, already organized. In 1908, the five
Central American States inaugurated the Cen21

tral American Court of Justice, with a permanent seat in Cartago. Each State appointed
one judge. Andrew Carnegie built for it a
splendid courthouse, and though a recent
earthquake has destroyed the edifice, has announced his intention to replace it by another.
The treaty under which this court was organized, framed by a Congress held at Washington, binds the five States (Art. I) to submit
to the judgment of this tribunal all controversies or questions which may arise among them,
of whatsoever nature, and no matter what
their origin may be, in case the respective departments of foreign affairs should not have
been able to reach an understanding. Jurisdiction is also given to it (Art. II) of claims
of any private citizen of one of the contracting
powers against any other of these powers, if
he founds it on a treaty or convention, or
states a case of an international character;
provided only that remedies open under the
local laws have been exhausted or that a denial
of justice be shown. The court is also empowered (Articles III, IV) to entertain amicable
22

suits of any nature and between whatever
parties, including international questions submitted by agreement between any one of the
contracting powers and a foreign government.
Proceedings of the nature indicated have
already been had before the court, and it has
pronounced final judgment upon them after
the ordinary course of judicial procedure.
As the Congress of Montevideo to advance
private international law was the forerunner of
the congresses of the Hague, which met for the
same purpose, so is it to be hoped that the
Central American Court of Justice may be the
forerunner of a Court of Justice organized by
all nations for all nations.

23

Sty* Ammnm g>nrt*tg far Juiinal BtttUmmt xA
ainimraiumal SteputaBL
The purpose underlying the formation of the
American Society for Judicial Settlement of International Disputes is promotion of the project to
establish a judicial tribunal which will do for the
civilized world what the ordinary courts of justice
do for the individual and to encourage recourse to
it when established. Such a tribunal is foreshadowed
in the Court of Arbitral Justice adopted in principle
by the Second Hague Conference. It differs materially from the existing Court of Arbitration at the
Hague. The latter consists practically of a panel
of judges to be drawn upon when it is desired
to organize a tribunal of arbitration for some
specific case. Courts of Arbitration, so organized,
have certain inherent weaknesses: their members
are often nationals of the contesting countries with
all the prejudices appertaining thereto; it is more
or less difficult to fix upon arbitrators acceptable to
both sides; an arbitration is costly and the expense
is borne solely by the nations parties to the dispute;
25

the court is dissolved after settling the case before
it and such a tribunal must lack continuity. A
permanent court of justice, on the other hand, would
gradually establish precedents by which it would
be governed and would help to build up international
law precisely as municipal law is built up today by
the decisions of the ordinary courts of justice. It
would gradually acquire a wide knowledge of international practice, and in time win the respect and
confidence of the world just as the Supreme Court
of the United States has won the confidence of the
people of the separate States of the Union. Furthermore, its very existence would be an invitation to
define more clearly international law and possibly
to codify portions of it. An example in point is the
fact that the establishment of an International
Prize Court by the Second Hague Conference (1907)
led to the holding of a convention in London
(1908-9) to codify the law of prize. The expense
of maintaining the Court of Arbitral Justice will be
borne by the nations jointly.
The new society will enter upon no direct propaganda for peace, for arbitration, or for disarmament.
Its aim is to advocate the most practical means
hitherto devised of settling certain kinds of international disputes without resort to war and to leave
to societies organized for that purpose the very
useful work of bringing home to men the evils of
26

war. Its promoters believe that in the fulness of
time peace and disarmament will follow as the
result of a growing habit of referring international
difficulties to a permanent and easily accessible
international court, just as trial by combat, by which
in former times a disputant could establish the
justice of his claim only by disabling his opponent,
fell into disuse when courts of justice were set up.
The movement for disarmament has failed to
make any progress because we cannot expect a given
nation to disarm so long as it remains open to attack
by other nations. With certain notable exceptions,
nations which have gone to war have generally
believed that they had a grievance,—some claim to
enforce or some aggression to repel. Each side has
believed itself wholly in the right. Give them the
machinery for determining the right, and war, so
costly in human suffering and waste of material
resources, will be less resorted to. Arbitration does
not completely satisfy this need. Frequently its
governing principle is compromise, and a nation
which feels itself wholly in the right in some dispute
of high importance, may be unwilling to run the risk
of a compromise of its presumed right.
Arbitration has been for some time, and will continue to be, of very great value, but it is merely the
stepping stone to an institution far more effective,
i. e., the proposed international court of justice.
27

The existing provision that the Court of Arbitral
Justice shall come into being whenever any two
powers proceed to institute it, makes such a permanent international court realizable, and it is reasonable to suppose that when once in operation as
between two or more powers the accession of other
powers will follow. But the court when established
will be, after all, only an instrument. To compel
the nations habitually to make use of that instrument
until war is neglected and grows rare, calls for the
building up of an overwhelming public opinion. This
is the real task, the task of years if not of generations.
The task before the new society, therefore, is to
show the people of this and other lands—
ist. That the movement to reject war as a means
of settling international controversies has already
become a practical movement, made such by the
achievements of arbitration and kindred institutions:
instance the number of arbitrations brought to a
successful conclusion in the recent past, the treaties
entered into to submit future disputes to arbitration,
and preeminently the adjustment of such a dangerous episode as tne Dogger Bank affair (1904) by
a mere institution, an institution so simple as a
Commission of Inquiry provided in advance by the
First Hague Conference.
28

2nd. That the proposed Court of Arbitral Justice
offers greater possibilities for the peaceful settlement of international controversies along permanent
lines than any existing institutions.
3rd. That the growing weight of armaments is
forcing men to turn their attention to this subject
as never before and makes the success of such a
movement more probable.
As thus far planned the channels through which
the new society proposes to work are principally
two, viz: the issuing of statements, brief and of
scientific accuracy, from the leading men of various
countries, and meetings of national scope.
Life membership, $100; Sustaining membership,
$10 a year; Annual membership, $1 a year.
Remit to treasurer, J. G. Schmidlapp, Cincinnati,
U. S. A. Address inquiries to secretary, Theodore
Marburg, Baltimore, U. S. A.

29

Asturtattt Batitty fax Jtoauial &tt&*vxmX o f
2fotmtaturoal StjBjmiaBu
©ffima
Honorary
President,
WILLIAM HOWARD TAFT.
President, JAMES BROWN SCOTT, Washington. D. C.
Vice-President, JOHN HAYS HAMMOND, Washington, D. C.

Secretary, THEODORE MARBURG, Baltimore, Md.
Treasurer, J. G. SCHMIDLAPP, Cincinnati, O.

Attttrtran &at\tty far JtoMrial &ttthm*nt of
UntmtatUm&l Utajrotfa.
A&utirorjj (Ecmtrtl
LYMAN ABBOTT, New York.
EDWIN A. ALDERMAN, Virginia.
JAMES B. ANGELL, Michigan.
SIMEON E. BALDWIN, Connecticut.
RICHARD BARTHOLDT, Missouri.
ALEXANDER GRAHAM BELL, Washington, D< C.

R. L. BORDEN, Ottawa, Ont.
THEODORE E. BURTON, Ohio.
GEORGE E. CHAMBERLAIN, Oregon.
WINSTON CHURCHILL, New Hampshire.
GEORGE B. CUTTEN, Wolfville, N. S.

WILLIAM R. DAY, Ohio.
JACOB M. DICKINSON, Washington, D. C
ANDREW S. DRAPER, New York.
CHARLES W . ELIOT, Massachusetts.
CHARLES E. FENNER, Louisiana.
W I L L I A M DUDLEY FOULKE, Indiana.
JAMES CARDINAL GIBBONS, Maryland.
GEORGE GRAY, Delaware.
CHARLES NOBLE GREGORY, Iowa.
PETER S. GROSSCUP, Illinois.
JOSEPH F . JOHNSTON, Alabama.
DAVID STARR JORDAN, California.
HARRY PRATT JUDSON, Illinois.
W I L L I A M H . K I N G , Utah.
GEORGE W . KIRCHWEY, New York.
PHILANDER C. KNOX, Washington, D. C.
CHARLES F . LIBBY, Maine.
FRANCIS B. LOOMIS, Washington, D. C.
HORACE H . LURTON, Tennessee.

R. MCBRIDE, Victoria, B. C.
CHARLES MARCIL, Ottawa, Ont.
SIDNEY E. MEZES, Texas.

S. C. MITCHELL, South Carolina.
FRANCIS G. NEWLANDS, Nevada.

L. OPPENHEIM, Cambridge, England.
WALTER H . PAGE, New York.

W. PETERSON,, Montreal.
SIR THOMAS RALEIGH, London, England.
WHITELAW REID, London, England.
W I L L I A M RENWICK RIDDELL, Toronto,
URIAH M. ROSE, Arkansas.

Ont.

A. C. RUTHERFORD, Edmonton, Alberta.
ALBERT SHAW, New York.
HOKE S M I T H , Georgia.
BISHOP ROBERT STRANGE, North Carolina.
SIR CHARLES HIBBERT TUPPER, Vancouver, B. C.
GEORGE TURNER, Washington.
CHARLES R. VAN H I S E , Wisconsin.
WILLIAM ALLEN W H I T E , Kansas.

GEORGE G. WILSON. Rhode Island.