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War and International Adjudication: Reflections on the 1899 Peace Conference

Published online by Cambridge University Press:  27 February 2017

David D. Caron
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Extract

In fact, the first organized communities of international law . . . are organizations the function of which is to settle conflicts.

Hans Kelsen

But here we shall note the recurrence of a paradox . . . . Where practice is least ethical, theory becomes most Utopian.

Edward Hallett Carr

The belief that a world free of war might be possible, be more than simply a dream, is a relatively recent phenomenon. In earlier times, war—like disease—was a part of life. There existed then a fatalism about war that no doubt persists in many parts of the world today. During the nineteenth century, however, parts of the world developed a confidence in progress and a hope that progress might extend to the abolition of war. Most importantly for this essay, a popular belief circulated at the e nd of the century that the establishment of a permanent international court would be an important step toward a world free of war. Ad hoc arbitration, as distinct from adjudication by such a permanent court, was not the same and, by itself, not enough. The 1899 Peace Conference was a point of inflection, a turn in the river, in the effort to move beyond ad hoc international arbitration to adjudication by a permanent international court as a means to avoid war a nd preserve international peace and security.

Type
Symposium: The Hague Peace Conferences
Information
American Journal of International Law , Volume 94 , Issue 1 , January 2000 , pp. 4 - 30
Copyright
Copyright © American Society of International Law 2000

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References

1 Hans Kelsen, Law and Peace in International Relations: The Oliver Wendell Holmes Lectures 1940–41, at 149 (1942).

2 Edward Hallett Carr, The Twenty Years' Crisis, 1919–1939, at 174 (Harper Torchbook 1964) (1939).

3 See, e.g., Henry Sumner Maine, International Law—The Whewell Lectures 8 (London, J. Murrayl888) (“War appears to be as old as mankind, but peace is a modern invention”).

4 Philip Kerr, The Mechanical Reason far War, in Philip Kerr & Lionel Curtis, The Prevention of War 7, 14–15 (1923) (quoting Lord Balfour).

5 It is beyond the scope of this essay to trace the efforts of various groups to have states renounce war as an instrument of national policy, although it should be emphasized that the peace movements often linked the promotion of an international court with a call for the formal renunciation of war. See generally Hans Wehberg, The Outlawry of War (1931); Denys D. Myers, Origin and Conclusion of the Paris Pact: The Renunciation of War as an Instrument of National Policy (1929); James T. Shotwell, War as an Instrument of Policy and Its Renunciation in the Pact of Paris (1929).

6 The art of counterfactuals is rarely satisfying to those who hold the opposite belief. See, e.g., Virtual History: Alternatives and Counterfactuals (Niall Ferguson ed., 1998), and debate concerning the volume.

7 This focus likewise characterizes Peaceful Resolution of Major International Disputes (Julie Dahlitzed., 1999).

8 Other methods of peacefully settling disputes discussed at the 1899 conference, such as conciliation and factual inquiry, cannot be addressed within the narrow confines of this essay. For a comprehensive general bibliography, see Dag Hammarskjöld Library, Peaceful Settlement of Disputes Between States: A Selective Bibliography, UN Doc. ST/LIB/SER.B/39 (1991).

9 See, e.g., the panel discussion, particularly the remarks of Georges Abi-Saab, in Increasing the Effectiveness of the International Court of Justice 202–05 (1997).

10 See generally Religion and International Law (Mark W. Janis & Carolyn Evans eds., 1999).

Thus, at this time modern prisons were born and, in some instances, termed penitentiaries. See, e.g., George Fisher, The Birth of the Prison Retold, 104 Yale L.J. 1235 (1995). Similarly, at this time the compassionate image of colonialism's mission, championed, for example, by Kipling, was probably at its peak.

11 Not many non-European states attended the first Hague Conference, but the perspective of those present had a modest effect on the substantive outcome regarding the laws of war. See Joseph H. Choate, The Two Hague Peace Conferences 16–17 (1913). For a sweeping discussion of the interaction of civilizations, see Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (1997).

12 William Ladd, Essay on a Congress of Nations for the Adjustment of International Disputes without Resort to Arms 102 (Oxford University Press 1916) (1840). For Ladd, peace could only be established through the teachings of Christianity: “The storm of war would soon be hushed in Christendom, and that main obstacle to the conversion of the heathen being removed, Christianity would soon spread all over the world.” Id.

13 Id. at 4–5. This focus was reflected somewhat in the choice of nations that were later invited to and attended the 1899 Peace Conference. Having said this, I also note that a much broader representation of states attended the 1907 Hague Conference and that as this representation in international organizations has expanded considerably in the course of the 20th century, the basic tenets of international adjudication have proved to be nearly universal.

14 See Kerr, supra note 4, at 10.

As to the significant number of armed conflicts occurring within colonies in contrast to the few intra-European armed conflicts in the 19th century, see Evan Luard, War in International Society: A Study in International Sociology 59–60 (1987). See also Antony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 Harv. Int'l L.J. 1 (1999).

15 Forrest Carter, The Education of Little Tree (1986).

16 “This is one reason for the uncompromising rejection [by Germany before the First World War] of the pacifist leanings in the Western World. They were despised and ridiculed as degenerate as compared with the medieval ideal of chivalry.” Fritz Fischer, War of Illusions: German Policies from 1911 to 1914, at 81 (M.Jackson trans., 1975) (1969). “One does not have to subscribe to Fischer's thesis to conclude that the very favorable light in which German policy-makers viewed war exercised a subtle but important influence on their behavior.” Richard N. Lebow, Between Peace and War: The Nature of International Crisis 253 (1981).

17 “When Russia was rising to the height of military reputation … in 1812 and 1813, she had always a difficulty in bringing as many as 100,000 men into the field; now she is said to contain six millions of armed men.” Maine, supra note 3, at 5.

18 On the building that came to house the Permanent Court of Arbitration, see A. Lysen, History of the Carnegie Foundation and of the Peace Palace at The Hague (28 Bibliotheca Visseriana, 1934); and Arthur Eyffinger, The Peace Palace—Residence of Learning, Domicile for Justice (1988). The completion of that building in 1913 was soon to be overshadowed by the First World War.

19 The statue is tided “Le Spectre de la Guerre.” It was sculpted by Rebeca Matte de Iniguez and donated to the Peace Palace by the government of Chile.

20 Likewise, the U.S. Civil War and other conflicts of that time prompted the development of the modern laws of war. See, on the Lieber Code, Theodor Meron, Francis Lieber's Code and the Principles of Humanity, in Politics, Values and Functions: International Law in the 21st Century 249 (Jonathan I. Charney et al. eds., 1997). See also Thomas G. Barnes, Introduction to Richard Shelly Hartigan, Lieber's Code and the Law of War 3 (1995).

21 See Thomas Allen, Remember the Maine? Nat'l Geographic, Feb. 1998, at 92; see ako Choate, supra note 11, at 28.

22 The peace movements have been studied in detail. A classic work of the time credited by many later writers is A. C. F. Beales, The History of Peace: A Short Account of the Organized Movements for International Peace (1931); see also The Eagle and the Dove: The American Peace Movement and United States Foreign Policy 1900–1922 (John Chambers II ed., 2d ed. 1991); Charles Chatfield, The American Peace Movement: Ideals and Activism (1992); M. E. Curti, The American Peace Crusade 1815–1860 (1929); C. Roland Marchand, The American Peace Movement and Social Reform 1898–1918 (1972); Christina Phelps, The Anglo-American Peace Movements in the Mid-Nineteenth Century (1930); M.R.Vesnic, Deux Précurseurs français du pacifisme (1911). A basic reference is Robert S. Meyer, Peace Organizations Past and Present : A Survey and Directory (1988). A particularly valuable collection of materials relating to many of the American peace movements from their inception may be found at Swarthmore College, and may be viewed in part at http://www.swarthmore.edu/library/peace/>.

On contemporary “peace studies” and their ties to the peace movements, see Peace Studies: Past and Future, Annals Am. Acad. Pol. & Soc. Sci., July 1989 (George A. Lopez spec. ed.).

23 This is not to imply that there was not also substantial grassroots (nongovernmental organization) support for environmental causes toward the latter half of the 19th century. See, e.g., Kurkpatrick Dorsey, The Dawn of Conservation Diplomacy: U.S.-Canadian Wildlife Protection Treaties in the Progressive Era (1998).

24 SeeGeorge H. Aldrich & Christine M. Chinkin, Introduction to Symposium, The Hague Peace Conferences, 94 AJIL 1, 1 (2000).

25 See generally United Nations Library at Geneva, Bertha von Suttner and Other Women in Pursuit of Peace (1993).

26 See Brigltte Hamann, Bertha von Suttner: A Life for Peace 72 (Ann Dubsky trans., Syracuse University Press 1996) (1986) (originally published in German as Bertha von Suttner: ein Leben für den Frieden) (asserting that “[j]ust as the latter did more for the abolition of slavery than all the scientific arguments put together, so did Suttner contribute more to the spread of the pacifist idea throughout the world than what the pacifists had hoped for in vain for decades.”); see also Memoirs of Bertha von Suttner: The Records of an Eventful Life (authorized Eng. trans., 1910); Beatrix Kempf, Suffragette for Peace: The Life of Bertha von Suttner (R. W. Last trans., Oswald Wolff 1972) (1964) (published in German as Bertha von Suttner—Das Leben einergrossm Frau).

27 Not all explanations reflect well on either the peace movements or the desirability of an international court. It is argued persuasively, for example, that the Austrian Peace Society founded and led by Baroness von Suttner promoted international courts to the exclusion of other rationally related policies because doing so presented a politically safe agenda in Austria at that time. See Richard Laurence, The Peace Movement in Austria, 1867–1914, in Doves and Diplomats: Foreign Offices and Peace Movements in Europe and America in the Twentieth Century 20 (Solomon Wank ed., Contributions in Political Science No. 4,1978); see also Phelps, supra note 22, at 45–46.

28 For a history of modern arbitration, see Jackson Ralston, International Arbitration from Athens to Locarno (1929).

29 For a memoir by a close observer of the arbitral settlement of the Alabama claims, see Thomas Willing Balch, The Alabama Arbitration (1900).

30 See, e.g., Calvin Dearmond Davis, The United States and the First Hague Peace Conference 17 (1962).

31 August Strindberg, The German Lieutenant and Other Stories 63–65 (Claud Field trans., T. Werner Laurie 1915). For a critical British view of the Alabama arbitration, see Maine, supra note 3, at 216–18.

32 The Evolution of Our Latin-American Policy: A Documentary Record 58 (James W. Gantenbein ed., 1950).

33 See generally James L. Tryon, The Interparliamentary Union and Its Work (1910).

34 See Clifton J. Child, The Venezuela-British Guiana Boundary Decision of 1899, 44 AJIL 682 (1950).

35 See Nelson M. Blake, The Olney-Pauncefote Treaty of 1897, 50 Am. Hist. Rev. 231 (1945).

36 Views of President McKinley, 1897, in 1 A League of Nations 21, 22 (1918). Davis, supra note 30, at 19, describes U.S. foreign policy at the end of the 19th century as marked by a strange duality of global imperial power and advocacy of world peace.

37 The definitive work on nullity is W. Michael Reisman, Nullity and Revision: The Review and Enforcement of International Judgmentsand Awards (1971). Nullification and review was subsumed in the debate on Article 55 at the 1899 Hague Peace Conference, which is not discussed in this essay. Readers are directed to Reisman's excellent treatment of the period and debate, id. at 29–46.

38 For an overview of these efforts, see id. at 30–34 (“a steady stream of codes”).

39 See, e.g., Thomas W. Balch, Emeric Crucé (Allen, Lane, & Scott 1900); William Penn, Towards the Present and Future Peace of Europe (American Peace Society 1912) (1694); Immanuel Kant, Perpetual Peace: A Philosophical Sketch (Bobbs-Merrill 1957) (1795); Jean-Jacques Rousseau, Project of Perpetual Peace (E. M. Nuttall trans., Cobden-Sanderson 1927); Abbé de Saint Pierre, Abrégé du projet de paix perpétuelle (H. Bellot trans., Sweet & Maxwell 1927) (1738).

40 LADD, supranote 12.

41 Ivan Bloch, The Future of War in Its Technical, Economic and Political Relations (1898) (6 vols.).

42 Ladd also reviews the history of previous attempts at establishing such courts, for their positive and negative aspects. See LADD, supra note 12, at 38–60.

43 Id. at xxxix.

44 Id.

45 Id. at 34–37.

46 Mat 91.

47 For a complete discussion of Tsar Nicholas II's knowledge of and access to Bloch's work, see Peter van den Dungen, The Making of Peace: Jean de Bloch and the First Hague Peace Conference (Occasional Papers No. 12, Center for the Study of Armament and Disarmament, Calif. State Univ. Los Angeles, 1983) (explaining that Bloch “had published the first results of his inquiries in 1892 in Russian and Polish periodicals” and concluding that “the evidence demonstrates clearly that Nicholas II was familiar with de Bloch's theory and showed great interest in it a long time before he published his Manifesto“). Id. at 4,9. For more on Bloch, his work, and his role in the 1899 conference, see Emile Joseph Dillon, The Tsar's Eirenicon, Contemp. Rev., Nov. 1898, at 609, reprinted in Arbitration or War: Contemporary Reactions to the Hague Peace Conference of 1899 (Sandi E. Cooper ed., 1972); and Thomas K. Ford, The Genesis of the First Hague Peace Conference, 51 Pol. Sci. Q. 354 (1936). Dillon refers to Bloch by the Polish spelling of his name, Bliokh. Others refer to him as Jean de Bloch, a reflection of the dominance of the French language in diplomacy at that time.

48 As described in Barbara W. Tuchman, The Guns of August (1962), such railroad plans for both offensive and defensive military operations were all the rage in continental Europe at the end of the 19th century and the start of the 20th.

49 Ladd took a similar view, but without the data supplied by Bloch. “Mankind have tried war long enough,” in Ladd's view, “to know that it seldom redresses grievances, and that it generally costs more than the redress is worth, even when it is most successful; and ‘that,’ to use the words of Jefferson, ‘war is an instrument entirely inefficient toward redressing wrong; … it multiplies instead of indemnifying losses.’” Ladd, supra note 12, at 96.

50 Quoted in War and the Pity of War 7 (Neil Philip ed., 1998).

51 Maine, supra note 3, at 1.

52 Id. at 211.

53 Id. at 213.

54 Id. at 211.

55 Id. at 212–13.

56 Id. at 213.

57 Id.

58 Maine, supra note 3, at 214–15.

59 Id. at 219.

60 Alfred T. Mahan, Lessons of the War with Spain 237 (Little,Brown 1899). Going further, Mahan argued the moral case for noncompliance in some instances by drawing on the civil disobedience literature of the time:

If, on the one hand, there is solid ground for rejoicing in the growing inclination to resort first to an impartial arbitrator, if such can be found,… there is, on the other hand, cause for serious reflection when this most humane impulse … shall vitally impair the moral freedom, and the consequent moral responsibility, which are the distinguishing glory of the rational man ….

Id. at 208–09. For an introduction to Mahan's life and influence on naval warfare, see A Strategy of Sea Power and Empire: Stephen B. Luce and Alfred Thayer Mahan, in Russell F. Weigley, The American Way of War: A History of United States Military Strategy and Policy 167 (1993). Mahan's emergence as agreat naval thinker was by no means early in his life and was, even then, unexpected, perhaps even to him. A comprehensive study is W. D. Puleston, The Life and Work of Alfred Thayer Mahan (1939).

61 Letter from General W. T. Sherman to General Meigs (Feb. 5, 1890), reprinted in Mahan, supra note 60, at 237–38.

62 Kempf, supra note 26, at 42.

63 Alfred Zimmern, The League of Nations and the Rule of Law 1918–1935, at 103 (1936).

64 The 1899 Peace Conference is well documented in the literature. Primary sources include Choate, supra note 11 (the author served as the U.S. First Delegate to the second Hague Peace Conference); Davis, supra note 30; John W. Foster, Arbitration and the Hague Court (1904) (the author was president of the National Arbitration Conference and prepared this work at the request of the Mohonk Arbitration Conference); William I. Hull, The Two Hague Conferences (1908) (the author was, in his words, an American “journalistic representative” at the second Peace Conference, and a professor of history at Swarthmore College); Margaret Robinson, Arbitration and the Hague Peace Conferences of 1899 and 1906 (1936) (unpublished Ph.D. dissertation, University of Pennsylvania); James Brown Scott, The Hague Peace Conferences of 1899 And 1907 (1909) (2 vols.); Barbara W. Tuchman, The Proud Tower: A Portrait of the World Before the War 1890–1914 (1966); and Andrew White, Autobiography of Andrew Dickson White (1905) (2 vols.) [hereinafter White, Autobiography] (that portion of the autobiography dealing with the first Hague Peace Conference was reprinted as Andrew D. White, The First Hague Conference (1912) [hereinafter White, Conference]).

The record of the conference is detailed and preserved and is enhanced, as noted, by several personal memoirs. Internal sources might overstate the significance of the meeting. The broader historical record, however, confirms that the participating governments took the conference very seriously. The great importance they attached to it is also apparent in the stature of the delegations appointed to represent them.

65 See 1 Scott, supra note 64, at 51.

66 Hull, supra note 64, at 37–38 (quoting Baron de Staal). Andrew White, who served as president of the American delegation to the 1899 conference, wrote in this tone of limited expectations that” [a] t the outset I was skeptical as to the whole matter.” 2 White, Autobiography, supra note 64, at 250.

67 In Hull's view, for example, the establishment of a permanent court of international arbitration was considered the crowning achievement of the first Peace Conference. Hull, supra note 64, at 475.

68 See 2 White, Autobiography, supra note 64, at 263–340 (entries for May 23–July 24, 1899).

69 Russian Circular (Jan. 11, 1899), reprinted in 2 Scott, supra note 64, at 4–5.

70 See Hull, supra note 64, at 40.

71 On the role of nongovernmental organizations and the press, see Robinson, supra note 64, at 106–30; and Tuchman, supra note 64, ch. 5.

72 See 1 Scott, supra note 64, at 53. Although representatives of the peace movements could not be involved directly in the conference, on several occasions groups were allowed to present their views. See 2 White, Autobiography, supra note 64, at 288 (entry for June 4, 1899). As to the citizen groups present, see Zimmern, supra note 63, at 103.

73 Convention [No. I] Regarding the Pacific Settlement of International Disputes, July 29,1899, 32 Stat. 1779, 1 Bevans 230 [hereinafter 1899 Hague Convention No. I].

74 For those who sought a renunciation of war, this careful call for “best efforts” “as far as possible” was a disappointment. Given its generality, this provision, perhaps needless to say, was not a subject of controversy at the conference. See 1 Scott, supra note 64, at 46.

75 See 2 White, Autobiography, supra note 64, at 271 (entry for May 26, 1899).

76 See id. at 278 (entry for June 1, 1899).

77 See id. at 280 (entry for June 1, 1899).

78 At the first meeting of the Third Commission, the Russian delegation presented 18 articles. The Russian explanatory note accompanying the articles “pointed out the difference in scope between voluntary and obligatory arbitration.” HULL, supra note 64, at 299. The note argues that universal obligatory arbitration is not feasible because the mutual rights and duties of states are determined by “‘political treaties,’ which are nothing else than the temporary expression of casual and transitory relations between diverse national forces.” Id. In this view, conflicts arise between nations, not because parties do not agree on how to interpret the law of these treaties, but because they want to amend or completely abrogate the agreement. Therefore, the law of political treaties cannot be applied in the same way as the law made by a legislature within a single nation. This line of thought later resurfaces as the problem of peaceful change. See Peaceful Change: An International Problem (C. A. Manning ed., 1937); see also John Foster Dulles, War, Peace and Change (1939).

Nevertheless, the Russian delegation went on to argue that there are some disputes that can be submitted to obligatory arbitration, “differences which concern exclusively special points of law, and which touch neither the vital interests nor the national honor of states.” Hull, supra, at 299–300.

79 See Hull, supra note 64, at 300.

80 2 White, Autobiography, supra note 64, at 265 (entry for May 24, 1899).

81 Id. at 299 (entry for June 13, 1899).

82 See id. at 349–50 (entry for Aug. 5, 1899).

83 Hull, supra note 64, at 23.

84 Id. at 375; 2 White, Autobiography, supra note 64, at 299 (entry for June 14, 1899).

85 See Hull, supra note 64, at 375–76.

86 See id. at 387; 2 White, Autobiography, supra note 64, at 308–18 (entries for June 16–21, 1899).

87 See Hull, supra note 64, at 374; and 1 Scott, supra note 64, at 77.

88 See 2 White, Autobiography, supranote 64, at 321 (entry for June 23, 1899).

89 See Hull, supra note 64, at 378.

90 Various other issues, such as the weight to be accorded a decision, the possibility of appeal, and the rules of the court, were also debated at length but cannot be addressed within the scope of diis essay.

91 See 2 White, Autobiography, supra note 64, at 278, 290 (entries for June 1 & 6, 1899).

92 See id. at 278 (entry for June 1,1899).

93 Hull, supra note 64, at 383.

94 1899 Hague Convention No. I, supranote 73, Art. 23. Members of the court serve for a term of six years, and dieir appointments are renewable.

95 See Foster, supra note 64, at 43; 2 White, Autobiography, supra note 64, at 259 (entry for May 19, 1899).

96 See Hull, supra note 64, at 327–28.

97 See id. at 326.

98 See id. at 331; 2 White, Autobiography, supra note 64, at 316 (entry for June 19, 1899); 1 Scott, supra note 64, at 78.

99 See Hull, supra note 64, at 349.

100 See id. at 350.

101 1899 Hague Convention No. I, supra note 73, Art. 27, reprinted in 2 Scott, supra note 64, at 95.

102 See Hull, supra note 64, at 305.

103 See id. at 307. In contrast, the Swiss delegation supported the idea in that it gave neutrals an active role; in essence, neutrals became “peace-managers.” See also 2 White, Autobiography, supra note 64, at 336 (entry for July 19, 1899).

104 See Hull, supra note 64, at 308.

105 See id. at 309.

106 2 White, Autobiography, supra note 64, at 339–42 (entries for July 24 & 25, 1899).

107 The U.S. Senate did not give its advice and consent to the treaty until March 1902. The story of the ratification is told by Davis, supra note 30, at 186–202.

108 Hull, supra note 64, at 410 (quoting T. M. C. Asser).

109 See 1 Scott, supra note 64, at 126. For a list of the cases decided by tribunals of the Permanent Court of Arbitration between 1899 and 1928, see Robinson, supranote 64, at 148.

110 President Roosevelt applied the good offices and mediation clauses in ending the Russojapanese War. A commission of inquiry was used in the Dogger Bank incident. See 1 Scott, supra note 64, at 125.

111 The resolution is reprinted in Foster, supra note 64, at 137.

112 See Choate, supra note 11, at 50.

113 See id. at 55.

114 Africa remained unrepresented. Asia was represented by the same four governments as in 1899. The 20 governments of Europe were represented, as in 1899, with the addition of Norway. Hull, supra note 64, at 14.

The importance of increased membership can be seen in the extended discussion of the use of force to enforce the collection of debts. At the 1907 conference, Horace Porter of the United States proposed “an agreement to observe some restrictions on the use of force to collect ordinary public debts arising from contracts.” He argued that the typical case is that of the capitalist who asks his government to espouse an inflated claim: “Often, such a private party will have bought the debt on the market at a low cost, and then demands payment at par. The Porter proposition was intended to eliminate this cause of friction between States.” Id. at 353 (quoting Porter). Interestingly, the most significant opposition to the Porter proposal came from the American republics, principally because they had borne the brunt of forcible collection efforts and felt the proposal did not go far enough. See id. at 358. Luis Drago of Argentina made three objections to Porter's proposal (the so-called Drago doctrine): (1) “that it did not restrict the arbitration of debts arising from ordinary contracts solely to those cases in which the courts of the debtor country had been previously appealed to and refused justice”; (2) “diatit seemed to include public debts as subject to arbitration”; and (3) “that it did not absolutely exclude military aggression, or the occupation of American soil, as the result of disputes in regard to public debts.” Id. at 358–59. Drago was generally supported by the Latin American states widi the exception of Brazil (Barbosa). The Porter proposition became a separate convention (Convention Relating to the Limitation of the Employment of Force for the Recovery of Contract Debts), to avoid the implication diat a category of obligatory arbitration had been advanced. See id. at 369–70. The proposition passed with abstentions by Belgium, Romania, Sweden, Switzerland, and Venezuela. Nine American republics adhered widi reservations.

115 See id. at 44.

116 See 1 Scott, supranote 64, at 124–31.

117 Convention for the Pacific Settlement of International Disputes, Oct. 18,1907, Arts. 86–90, 36 Stat. 2199, 1 Bevans 577 [hereinafter 1907 Hague Convention No. I].

118 Id., Arts. 12–36.

119 Id., Arts. 15–17, 43, 48, 60.

120 Id., Arts. 52–85.

121 See Hull, supra note 64, at 291–95. More substantial alterations were not entertained. Russia and the Netherlands proposed that the signatory powers “agree to establish” international commissions of inquiry, instead of merely judging them useful. Yet, despite the two qualifying phrases (“involving neither honor nor independence” and “as far as circumstances permit”), the proposed amendment was vigorously rejected. See id. at 289.

122 See id. at 387–89.

123 Id. at 427.

124 The delegates debated whether the court should have jurisdiction only between two governments or between one government and individual citizens of another; whether the court should have jurisdiction over all cases of capture or over only those in which neutrals are concerned; when the role of the international court should commence, direcdy after the national prize courts of first instance have rendered their decision, or not until the highest court in the country has rendered its decision; and whether the court should have a permanent character or be constituted only on the occasion of each war. For a review of the range of debate, see id. at 428–43.

125 See id. at 436–41. The British proposed a scheme for the appointment of judges providing that “each of the signatory powers whose merchant marine, on the date of the signature of this convention, is more than 800,000 tons, shall designate one judge’”—hence totaling eightjudges, appointed by Britain, the United States, Germany, Norway, France, Japan, the Netherlands, and Italy—“but if any of these powers should be party to a suit, its appointee would take no part in the decision of the case.” Id. at 439. The British proposal would have excluded Russia and Austria, and was rejected.

126 Convention [No. XII] Relative to the Creation of an International Prize Court, Oct. 18, 1907, 100 Brit. & Foreign St. Papers 435 (1906–07); see Hull, supra note 64, at 447–48.

127 See Clyde Eagleton, International Government 226 (rev. ed. 1948); see also 1 Scott, supranote 64, at 131. Scott writes concerning the second Hague Conference: “The one was a court without judges [the creation of a permanent court of justice ]; the other is a court without law, because the nations failed to codify international law, and thus supply the court with a code of maritime law to be administered and interpreted by it.”

128 For a summary of the relevant practice, see Helen May Cory, Compulsory Arbitration of International Disputes 28–68 (1932).

129 See Hull, supra note 64, at 314.

130 Baron von Bieberstein of Germany opposed a general treaty of obligatory arbitration, even for a very restricted number of disputes, stating that agreements between two states cannot serve as a model for such a general treaty. See id. at 312–13. Sir Edward Fry of Great Britain supported the idea, stating that a general treaty of obligatory arbitration “will have greatimportance in history as being the collective expression of the conscience of the civilized world.” Id. at 314.

131 See 1 Scott, supra note 64, at 128.

132 See Hull, supra note 64, at 332.

133 See id. at 335.

134 Speech of Baron von Bieberstein, representative of Germany, quoted in id. at 340.

135 Speech of Dr. Luis M. Drago, representative of Argentina, quoted in id. at 341.

136 See Hull, supra note 64, at 345.

137 See id. at 347–48.

138 Choate, supra note 11, at 77.

139 Hull, supra note 64, at 417.

140 Eagleton, supra note 127, at 226; see also T.J. Lawrence, The Principles of International Law 583 (6th ed. 1915).

141 Great Britain, resolution on a court of arbitral justice, May 26, 1899, reprinted in Hull, supra note 64, at 424.

142 U.S. Dep't of State, Papers Relating to the Foreign Relations of the United States 1899,at 518 (1901).

143 A preface to the book reprinting that portion of Andrew White's autobiography dealing with the 1899 conference states: “the second conference made definite … the meeting of a third … and this means a fourth and a fifth.” E. D. M., Preface to White, Conference, supra note 64, at iii.

144 John Keegan, The First World War 4, 8 (1999).

145 See id. at 7.

146 With the Cold War concluded, the Soviet Union broken apart, and the 20th century drawing to a close, it appears increasingly evident that the First World War “changed the course of history more than any other in modern times.” Paul Kennedy, In the Shadow of the Great War, N.Y. Rev. Books, Aug. 12, 1999, at 36, 36.

147 Norman Angell, The Great Illusion: A Study of the Relation of Military Power to National Advantage 373 (4th ed. 1913).

148 Id. at 368.

149 Kerr, supra note 4, at 14. For Kerr's role during the war, see id. at 8.

150 See generally Contributions of the Court to the Resolution oflnternational Tensions, in Increasing The Effectiveness of the International Court of Justice 77–100 (Connie Peck & Roy S.Lee eds., 1997) (remarks of Carl-August Fleischhauer, Robert Jennings, Elisabeth Zoller, Conrad Harper, Keith Highet, Alain Pellet, Prosper Weil, Thio Su Mien, Hugh Thirlway, John Dugard, and Alberto Luis Davérède).

151 See David D. Caron, The Permanent Court of Arbitration: ‘Seeking the Most Effective Means of … a Real and Lasting Peace, 'in Contemporary International Issues: Opportunities at a Time of Momentous Change 166 (Proceedings of the Second Joint Conference of the American Society of International Law and the Nederlandse Vereniging voor Internationaal Recht, 1993) (remarks); see also Jeffrey Bleich, A New Direction for the PGA: The Work of the Expert Group, 6 Leiden J. Int'l L. 215 (1993). See generally Working Group on Improving the Function of the Court, The Permanent Court of Arbitration—New Directions (May 13,1991) (report of meeting).

152 Although our current view of how, and to what extent, public opinion plays a role in international affairs seems less simple than that expressed in 1899, there is nonetheless widespread agreement today that it does exercise some influence. Ladd, ever optimistic, in 1840 declared that “moral power [was] increasing in a geometrical ratio and thus in the future nations will be more agreeable to follow and honor the court rulings.” Ladd, supra note 12, at 5–7. Similarly, Choate wrote that

it is still occasionally insisted that there is no sanction to thejudgments of the permanent Court of Arbitration …. But here we have what may be regarded as the common judgment of mankind … that henceforth, in obedience to the public opinion of all nations, the contending parties shall submit in good faith to the decision of the arbitral tribunal.

Choate, supra note 11, at 34. Given the dramatically greater power of communication, an optimistic view today would probably be closer to that espoused by Sir Henry Maine in 1898. For Maine, “[t] he truth is that an offender against the obligations of International Law is at present seriously weakened by the disapprobation he incurs.” Maine, supra note 3, at 221. It should also be acknowledged, however, that Maine's view is more optimistic dian that held by many of today's realists. See, e.g., Geoffrey Best, Peace Conferences and the Century of Total War: The 1899 Hague Conference and What Came after, 75 Int'l Aff. 619, 631 (1999). But Maine, like a realist, believed that if the conflict was serious enough, dien shame would not stop it. For Maine, force must stand behind the court, but the force of the “commonwealth of nations,” in his view, while “immense and practically irresistible … is badly distributed and not well directed, and … is too often impotent, not only for the promotion of good, but for the prevention of acknowledged evil.” Maine, supra, at 222.

153 How the normative expectations and legal knowledge of various public groupings play a role in international relations is the subject of much academic investigation at present. In contrast to the assumptions made a century ago, these investigations consider more subtle and complex causal pathways. See e.g., Joaquín Tacsan, The Dynamics of International Law in Conflict Resolution (1992). See also Laurence R. Heifer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J. 273 (1997). One such pathway turns on the capacity of the authoritative knowledge of an institution, such as the International Court of Justice, to clarify the values and thinking of a range of actors and thereby strengthen a particular expression of public opinion. If we accept Maine's view that shame will not prevent a conflict where important matters are at stake, we should conclude that those direcdy involved in an important dispute are the least likely to be influenced by the audioritative legal knowledge that might emerge from an institution such as the International Court. Correspondingly, we should conclude tiiat the force of a ruling of the Court will be felt most strongly by those states that are not direcdy involved. In this sense, the force of public opinion resulting from an opinion of the Court is perhaps greatest in the area of armed conflict when the opinion emanates from states and odier actors that are not direcdy involved, yet are interested; that are strong, yet not isolationist. Commenting on the proposal of French economist Molinari for a League of Neutral Powers, Maine observed that “if war is ever to be arrested, it will be arrested by sacrifices on the part of those states which are neither at war nor desire to go to war.” Maine, supra note 3, at 224.

154 1899 Hague Convention No. I, supra note 73, Arts. 52–53.

155 International Court of Justice Statute, Art. 9.

156 Richard B. Lillich & G. Edward White, The Deliberative Process of the International Court of Justice: A Preliminary Critique and Some Possible Reforms, 70 AJIL 28, 37 (1976) (reviewing generally the historical development and present status of the deliberative process); see also Robert Y.Jennings, The Collegiate Responsibility and Authority of the International Court of Justice, in International Law at a Time of Perplexity 343 (Yoram Dinstein ed., 1989); Mohammed Bedjaoui, The “Manufacture” of Judgments at the International Court of Justice, 3 Pace Y.B. Int'l L. 29 (1991); Edvard Hambro, The Reasons behind the Decisions of the International Court of Justice, 1954 Current Legal Probs. 213.

157 Hans Corell, The Feasibility of Implementing The Hague/St. Petersburg Centennial Recommendations under the UN System, in Peaceful Resolution of Major International Disputes: Furthering the Objectives of the First International Peace Conference of 1899, at 33 (1999).

158 League of Nations O.J., Jul.-Aug. 1920, at 228, 230.

159 See Kelsen, supra note 1, at 145–48.

160 The Committee of Jurists, in considering the law to be applied by the Permanent Court of International Justice, sidestepped the issue of the basis of decision by providing a method for the judges to followin ascertaining the law, rather than restating the law at that moment; a method rather than a particular rule, i.e., application of the sources listed in Article 38 of the PCIJ Statute. Of course, to believe in a method, one must believe in those who will apply it, the first echo just discussed. And if one does not have confidence in the judges or the process, then a method approach may raise concerns that the judges possess too much authority in determining the content of the applicable norm, which in turn may deter acceptance of jurisdiction.

161 Francisco Orrego Vicuña & Christopher Pinto, The Peaceful Settlement of Disputes: Prospects for the Twenty-first Century (1999) (revised report prepared for the 1999 centennial of the first International Peace Conference). For the revised report, along with the preliminary draft and comments thereon, see <http://www.rninbuza.nl/English/f_sumnewsl4.html> (visited Dec. 13, 1999).

162 Orrego Vicuña & Pinto, supra note 161, para. 110.

163 Choate, supra note 11, at 39 (quoting 2 White, Autobiography, supra note 64, at 354).

164 See Ted L. Stein, Tribunal Decisions: The Reason for Reasons, Mealey's Litigation Rep.: Iranian Claims, Mav 4, 1984, at 547.

165 See generally Alexander Bickel, The Least Dangerous Branch (1962).

166 Such proposals are in numerous places in the Orrego Vicuña and Pinto report, supra note 161. Section III, in particular, may be looked to in this regard, It should be noted that Orrego Vicuña and Pinto believe that some of their suggestions would not necessarily require formal amendment to the Charter but might be achieved through judicial interpretation of the Charter. See Orrego Vicuña & Pinto, supra, §111.4, para. 122.

167 Although the Statute of the International Court of Justice “forms an integral part of” the UN Charter (Article 92), it contains its own provisions on amendment. These articles (Article 69 in particular), however, provide as a general rule that “[a]mendments to the present Statute shall be effected by the same procedure as is provided by the Charter of the United Nations.” As to amendment of the UN Charter, see Articles 108, 109.

168 See Jonathan I. Charney, Is International Law Threatened by Multiple International Tribunals ? 271 Recueil des Cours 105 (1998); Symposium Issue, The Proliferation of International Tribunals: Piecing together the Puzzle, 31 N.Y.U. J. Int'l L. & Pol. 679 (1999).

169 Speech of Dr. Luis M. Drago, supra note 135, at 340–41.

170 2 White, Autobiography, supra note 64, at 347 (entry for July 29, 1899).