International court

“ The economic and other interests of states are more powerful than the will of the power-wielders of the day. These interests have begotten the law of nations, have driven states to arbitration, have called forth the establishment of a Permanent Court of Arbitration at The Hague, and are now at work compelling the erection of international courts. Let us arm ourselves with patience and allow these interests to widen their sway; they will bring about a voluntary submission to the judgments of the international court on the part of all states. ”

“ More than forty nations have at some time accepted the opportunity to submit their disputes to this court. This obligation has usually been limited to a five-year period but some acceptances have been for ten years or have had no time limit. Between 1921 and 1934 there was a real approach toward universal recognition of a duty to submit international disputes to judicial settlement. This may be an encouraging precedent for those who are so jealous of their nation's sovereignty that they shun cooperation even in an international court for the punishment of war criminals. ”

“ We suggest for a beginning of an international organization, that Uncle Sam issue a call to each civilized nation and urge each to furnish and send two representatives, including two from the United States, to some point where they would convene and organize a temporary international court, in addition to that already formed, for the purpose of organizing a permanent international arbitration court, which would be endowed with power to adjust and settle difficulties between nations represented by such court. ”

“ Such a court secures continuity of jurisprudence, affords a guarantee for the most exact examination of questions of fact and of law, deems itself to a greater or a less degree bound by its previous decisions, contributes thereby to the settlement of open legal questions, and furthers the growth of law while adding to the respect in which it is held. Nothing can heighten the respect in which international law is held more than the existence of a real international court. ”

“ In our time it cannot be expected, and here therefore lies the great difficulty in the way of setting up and manning International Courts of Justice; because there is no doubt that each State will claim the right to appoint at least one man of its own choice to sit as judge in the International Court or Courts. And since there are about fifty or more civilised independent States in existence, the International Court would comprise fifty or more members. ”

“ The Members of the United Nations, emphasizes Judge Skotnikov, have conferred distinct responsibilities upon the General Assembly, the Security Council and the International Court of Justice and have put limits on the competence of each of these principal organs. The Court – both as a principal United Nations organ and as a judicial body – must exercise great care in order not to disturb the balance between these three principal organs, as has been established by the Charter and the Statute. ”

“ The only quasi-legislative body by which the ratio decidendi of such a decision could be disallowed would be an international gathering in which British views might find scanty support. The development of a system of national law by national Judges offers no analogy to the working of an international Court, empowered, at its free will and pleasure, to disregard the views of a sovereign Power as to the proper rule to be applied in cases as to which international law gives no guidance. ”

“ If success attends the attempt to convert the Prize Court into a general international court or if a special international court is created, this would render it possible to have other international legal disputes also decided by a real court upon naked principles of law. Such a possibility is in the interest of the parties and also in that of international law itself, for it will be held in higher and surer esteem if a court is provided for its authoritative interpretation and application. ”

“ If only we succeeded in the clear enunciation of legal rules for all international relations; if only we could succeed in finding independent and unbiased men to whose judgment a state could confidently submit its cause; if only we could succeed in bringing such men together in an independent international court—there would then be no reason why the great majority of states should not follow the example of the very small minority which has already agreed to settle all possible disputes by means of arbitration. ”

“ The Courts of a given country in evolving new rules of law are almost certain to do so in accordance with the views of public policy generally entertained in that country. Should they act otherwise their error can be promptly corrected by the national Legislature. Far different would be the effect of the decision of an international Court, in which, though it might run directly counter to British theory and practice, Great Britain would have bound herself beforehand to acquiesce. ”

“ An international tribunal for Judicial Settlement, which we might call a World Supreme Court, established by the consent and coöperation of the great powers, could gradually erect a body of international law that would be both ideal and real. This is the only way in which international law will ever come to have any actual, positive, binding force. ”

“ States, of their constitutions, and many other difficulties, entail the danger that International Courts may become the arena of national jealousies, of empty talk, and of political intrigues, instead of being pillars of international justice. ”

“ The tribunals which act as umpires between the federal and the state governments naturally also decide all disputes between two states, or between a citizen of one state and the government of another. The usual remedies between nations, war and diplomacy, being precluded by the federal union, it is necessary that a judicial remedy should supply their place. The Supreme Court of the federation dispenses international law, and is the first great example of what is now one of the most prominent wants of civilized society, a real international tribunal. ”

“ The proposition to furnish a contingent to a posse comitatus to enforce the judgment of a World Supreme Court stands on a very different footing. The League of Peace plan would compel us to furnish a force to compel any other nation to come before the Council of Conciliation. The proposition formulated at Cleveland by the World Court Congress was to first establish the International Court by consent and agreement of the Powers, and then to help furnish a posse comitatus in case of necessity, to execute the decrees of the court. ”

“ Judges so selected will speedily adapt themselves to the milieu of the international court and be laid hold of by it, and their equipment for their task completed. As things are at present, the institution of an international court is an unheard-of experiment. ”

“ The ultimate object of the establishment of a Court of Arbitral Justice is to prevent these abysmal disturbances which, if allowed to exist, will sooner or later destroy any institution, political or judicial, set up by the nations. The immediate object is to come to a common understanding of international justice, and to formulate rules for the conduct of nations based on that understanding. ”

“ If the erection of an international court comes to pass, the equipment of it with competent and worthy men will be of the highest importance. Their selection will have difficulties of all sorts to overcome. ”

“ In those cases the judicially created act of state doctrine is an aspect of the conflicts of law rules of the forum and renders the foreign law controlling. But where a court refuses to examine foreign law under principles of international law, which it is required to do, solely because the Executive Branch requests the court, for its own reasons, to abstain from deciding the controlling issue in the controversy, then in my view, the executive has removed the case from the realm of the law to the realm of politics, and a court must decline to proceed with the case. ”

“ Arbitration is the name for the determination of differences between States through the verdict of one or more umpires chosen by the parties. As there is no central political authority above the Sovereign States, and no such International Court as could exercise jurisdiction over them, State differences, unlike differences between private individuals, cannot as a rule be obligatorily settled in courts of justice. ”

“ A State may, therefore, instead of making special regulations, directly order its Prize Courts to apply the rules of International Law, and it is understood that, when no statutes are enacted or regulations are given, Prize Courts have to apply International Law. Prize Courts may be instituted by belligerents in any part of their territory or the territories of allies, but not on neutral territory. It would nowadays constitute a breach of neutrality on the part of a neutral State to allow the institution on its territory of a Prize Court. ”

“ That multilateralism is threatened if one nation alone, through application of its own liability rules (by nonexpert judges) , can shape the policy choices or actions that an international organization believes it must take or refrain from taking. Yet that is the effect of the majority’s interpretation. By restricting the immunity that international organizations enjoy, it “opens the door to divided decisions of the courts of different member states,” including U. S. courts, “passing judgment on the rules, regulations, and decisions of the international bodies.” ”

“ The result is that cases submitted to mere arbitration, without the backing of an adequate international law, have frequently resulted in decisions which meant nothing more nor less than a mere compromise, unsatisfactory to both parties and yet accepted in the name of peace rather than in the name of justice. The world court of the future will administer an international law created and acknowledged by all nations. ”

“ But the creation of such an international law as has been described involves the creation of a world court, or courts, where cases of dispute between the nations shall be brought for settlement and where international law shall be adequately administered by expert and impartial judges. That such a court is not at all impracticable is proved by the fact that during the last one hundred and twenty-two years over six hundred international disputes have been settled by courts of arbitration. ”

“ If a question of law to be decided is covered by a treaty in force between flue belligerent captor and a power which is itself or whose subject or citizen is a party to the proceedings, the court is governed by the provisions of the said treaty.
In the absence of such provisions, the court shall apply the rules of international law. If no generally recognized rule exists, the court shall give judgment in accordance with the general principles of justice and equity. ”

“ Even though a court-martial does not give an accused trial by jury and other Bill of Rights protections, the Government contends that Art. 2 (11) of the UCMJ, insofar as it provides for the military trial of dependents accompanying the armed forces in Great Britain and Japan, can be sustained as legislation which is necessary and proper to carry out the United States' obligations under the international agreements made with those countries. ”

“ He said in substance that the court should be composed of judges representing the several great juridical systems of the world. What this court must undertake to do, if it is to lead men and nations to accept a common standard of international right, is to reconcile whatever differences now exist in the minds of men, concerning the essentials of justice. If men living under one system regard conduct as just which men living under another system think unjust, it is obvious that these differences must be reconciled. ”

“ The considerations that international law is without a court for its enforcement, and that obedience to its commands practically depends upon good faith, instead of upon the mandate of a superior tribunal, only give additional sanction to the law itself and brand any deliberate infraction of it not merely as a wrong but as a disgrace. ”

“ The whole British Empire Delegation held the view that when the Arbitration Commissions were faced with such questions, they should be bound to refer them to the Permanent Court, and that the opinion of the Court should be binding. As the Permanent Court itself is bound to apply international law, and paragraph 8 of article 15 refers to questions which by international law are solely within the domestic jurisdiction of the State concerned, this provision ensures that a uniform rule will be applied by the Council, the Permanent Court and the arbitral bodies to be set up under the new system. ”

“ Such a tribunal as is contemplated would not only be able to adjudicate specific disputes but would gradually build up a body of International Law as potent in preserving the peaceful relations of nations as the body of domestic laws is in preserving peaceful relations among the citizens and states of the several nations. ”

“ We think that a receiver has never been recognized by a foreign tribunal as an actor in a suit. He is not within that comity which nations have permitted, after the manner of such nations as practise it, in respect to the judgments and decrees of foreign tribunals, for all of them do not permit it in the same manner and to the same extent, to make such comity international or a part of the laws of nations. But it was said that receivers in New York are statutory officers, as assignees in bankruptcy are. ”