ADDRESS OF ELIHU ROOT

(of the New York Bar, formerly Secretary of State of the United States and United States Senator)

GENTLEMEN OF THE ASSOCIATION: It is a pleasure to take part in this series of discussions because I think it is a very valuable and praiseworthy project on the part of the Association, and I am glad to be able to contribute what I can by talking for a few minutes about the subject scheduled for this evening. It is a proper subject to discuss here, because this Association has had something to do with it. When the constitution for the League of Nations was proposed and published by the conferees at Paris with a request for suggestions, the Special Committee of this Association upon International Law held a meeting for the purpose of considering what they ought to do in that field. The result of that meeting was that there was a unanimous resolution passed, without reference to party, race, creed or previous condition of servitude, by the Committee, recommending and urging that there be included in the agreement or League of Nations the following:

"The High Contracting Powers agree to refer to the existing Permanent Court of Arbitration at The Hague, or to the Court of Arbitral Justice proposed at the Second Hague Conference, then established, or to some other arbitral tribunals, all disputes between them, including those affecting honour and vital interests, which are of a justiciable character, and which the powers concerned have failed to settle by diplomatic methods. The powers so referring to arbitration agree to accept and give effect to the award of the Tribunal.

"Disputes of a justiciable character are defined as disputes as to the interpretation of a treaty, as to any question of inter

national law, as to the existence of any fact which, if established, would constitute a breach of any international obligation, or as to the nature and extent of the reparation to be made for any such breach. Any question which may arise as to whether a dispute is of a justiciable character, is to be referred for decision to the Court of Arbitral Justice when constituted, or, until it is constituted, to the existing Permanent Court of Arbitration at The Hague."

That resolution was communicated to the Secretary of State of the United States, and was cabled by him to Paris. After the communication to the gentlemen at Paris, an amendment was made to the League agreement. I will say nothing because I know nothing on the question whether this was procter hoc or simply post hoc. The substance of the amendment was to include in the Covenant for the League the definition as to justiciable questions given in the resolution of the Committee of this Association upon International Law. That resolution, as I understand, was subsequently approved by the Association in plenary session. The article of the League Covenant originally read as follows:

"The members of the League agree that whenever any dispute shall arise between them which they recognize to be suitable for submission to arbitration and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject matter to arbitration."

That is the way it stood before, and, being simply an agreement to arbitrate questions recognized as being suitable for arbitration, didn't amount to very much. But the amendment inserts the following words:

"Disputes as to the interpretation of a treaty, or as to any question of international law, as to the existence of any fact which, if established, would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach are declared to be among those which are generally suitable for submission to arbitration."

Then it goes on:

"For the consideration of any such dispute the Court of Arbitration to which the case is referred shall be the Court agreed upon by the parties to the dispute or stipulated in any convention existing between them.

"The members of the League agree that they will carry out in full good faith any award that may be rendered, and that they will not resort to war against a member of the League which complies therewith. In the event of any failure to carry out such award, the Council shall propose what steps should be taken to give effect thereto."

You will see that that carries into the article in a general way the definition of justiciable questions included in your resolution. That is a long step forward, because what are known as the Taft Treaties of Arbitration, treaties negotiated while Mr. Taft was President, between the United States and France and between the United States and Great Britain, failed because they provided for referring to arbitration all justiciable questions and the term "justiciable" was deemed so general and vague, so without any precedent upon which to draw the line as to what was justiciable and what was not, that it was considered that an agreement to refer to arbitration all justiciable questions would involve or might involve all sorts of questions, whether of policy or of right. This definition obviates the chief objection which led to the failure of the Taft Arbitration Treaties.

In the League Covenant it is also stated in Article 14 that

"The Council 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."

Sometime in the early spring I received an invitation from the Council of the League of Nations, identical with

an invitation which was sent to some dozen gentlemen residing in different nations, inviting us to become mernbers of a Committee, or, as they call it on the other side, a Commission, to devise and recommend a plan for the Permanent Court of International Justice which the League Covenant required the Council to formulate and to submit to the members of the League for adoption. The invitation was to prepare and recommend to the Council of the League a plan by which they might comply with this provision of Article 14, which required them to formulate and submit a plan for a Permanent Court of International Justice.

For many years, people concerned with international affairs have realized that one difficulty about arbitration is that arbitrators too often are apt to treat the cases brought before them as a matter for settlement, for adjustment. They have come to consider, apparently, that their function is to do with the case what seems to them to be the wisest and most expedient thing for all parties and all interests concerned. They tend to act under a sense of diplomatic obligation rather than under a sense of judicial obligation. The great difficulty about arbitration has really been not that nations were unwilling to submit questions of law, questions of right, the kind of questions that our courts pass upon as between individuals in municipal law, to impartial judgment, but that they had not much confidence in getting impartial judgment because they found that the arbitrators, when they got together, went into negotiation as diplomats, and no one could tell what would come out of it. The party having no matter how strong a case, no matter how absolutely right upon the question of legal right, might find itself defeated because it seemed to the arbitrators on the whole that it perhaps would be better that it should not have its legal rights, but that the case should be settled as conveniently as possible.

Now, this proposed Permanent Court of International

Justice was designed to differ from the ordinary arbitral tribunal in that respect. It was designed to be a court in which judges would sit and decide according to law, and let the consequences take care of themselves. And that was the problem presented to this Committee which met at The Hague in the second week of June last.

The Committee was composed of members from ten different countries: Lord Phillimore from England; M. de Lapradelle from France; Baron Descamps from Belgium; Judge Loder from Holland; Mr. Hagerup from Norway; Mr. Altamira from Spain; Mr. Adatci from Japan; Mr. Ricci Busatti from Italy; Mr. Raoul Fernandez from Brazil; and myself. Nobody represented any government. We were called there as experts purely and on just as purely expert work as if a lot of engineers had been called together to propose a plan for a bridge.

At the outset, one might suppose that it was quite a simple thing to get up a plan for a court, but there were some very serious difficulties involved.

A plan had been prepared at the urgent instance of the American delegates to the Second Hague Conference in 1907-a plan for a permanent court of international justice. The name that was given to it then was the Court of Arbitral Justice, and that was the name that found its way into our Bar Association resolution-referring to the "Court of Arbitral Justice" proposed at the Second Hague Conference. A general scheme of a court was devised in 1907 and reported to the Second Hague Conference-and was adopted. But it didn't take the form of an operative convention or treaty because it was found impossible to agree upon the constitution of the court. That is, it was found impossible to agree upon the way in which the judges should be selected. There was a certain jealousy or suspicion or prejudice or perhaps just apprehension on the part of the small countries towards the big countries which made the small countries unwilling to allow the big countries to have a voice in