An International Judicial System
PROTECTION OF THE RIGHTS OF INDIVIDUAL NATIONS AND INDIVIDUAL CITIZENS
By AMOS J. PEASLEE, Lawyer
Delivered before the Inter-American Bar Association, Mexico City, August 1, 1944
Vital Speeches of the Day, Vol. X, pp. 669-672.
THIS youthful but virile association, since its birth in 1941, has charted a majestic course for the world's future. Many excellent resolutions have been adopted. I have no additional ones to offer. Prompted, however, by the dynamic example of our distinguished president, Lie Carlos Sanchez Mejorada and his energetic committee on arrangements for this conference, I am emboldened to suggest a program of action. I propose that when we return, to our respective nations we begin at once to forge the structure of a living, functioning system of interrelated international courts. If such a system is to be created, who are more competent to lead in its establishment than the trained members of the legal profession?
Public opinion throughout the world is demanding that force in the settlement of disputes between nations shall be proscribed. Humanity cries out for the suppression of violence and for a reign of justice. But how can we expect either peace or justice without competent international courts.
Functions of Courts
Courts in human relationships perform three major functions: (1) they settle disputes by pacific means—if not always amicable ones; (2) they provide forums to try, hear, condemn or acquit those members of society charged with disturbing the public peace or with the infringement of the rights of others; and (3) they form a bulwark to protect individual members of society against predatory and capricious governmental power. Domestic tranquility and happiness reign only where honest courts fearlessly perform all three of those functions. Without them combat, outlawry, tyranny and revolution are inevitable alternates.
The Permanent Court of International Justice
Nearly a half century ago the nations of the world, assembled in conference of official delegates, began the discussion of the organization of a World Court. The seeds sown at The Hague Conferences of 1899 and 1907 found fruition in the conference of jurists which on December 16, 1920, promulgated the Statute of the Permanent Court of International Justice. 16 of the 22 American nations both subscribed to and ratified that protocol.1 Three others signed it but did not ratify it."2 Three failed both to sign and ratify it.3
Recognition of "Obligatory Jurisdiction" by the American Nations
Of the American nations which signed the 1920 Statute, 14 signed acceptances of the obligatory jurisdiction of the Court under the provisions of Article 36, upon varying conditions.4
My own country, the United States of America, signed, as you know, the protocols for adherence to the Statute of the Permanent Court of International Justice, but ratification has so far failed through a series of unfortunate procedural complications. The vote of 78 to 17 in the United States Senate in 1926 favoring membership in the Court subject to minor modifications of the Statute, and the vote again in our Senate in 1935 of 52 to 36 favoring such membership, indicate the prevailing view in the United States supporting the purposes of that Court.
Revisions of the Permanent Courts Protocol
On September 14, 1929, as you will remember, a Protocol of Revision of the Statute creating the Permanent Court of International Justice was signed by a number of nations. That new protocol was declared operative on February 1, 1936. It is apparent, however, to any careful student of that Revision Protocol, and of the Original Protocol, and of the third Protocol relating to the United States's accession of September 14, 1929, and of the various limitations upon the World Court power, that a further conference of jurists is urgently needed to untangle questions of jurisdiction of that Court and to consider future methods for the selection of its judges, means of its financial support, and its relationship to whatever future "General International Organization" may exist.
The Need for Additional Permanent International Courts
With all of its accomplishments, the Permanent Court of International Justice in the two decades preceding the present world war handled less than one-tenth of one per cent of the international claims and controversies which were actually adjudicated. More than 50,000 additional international cases were litigated before haphazard Claims Commissions, Arbitral Tribunals and Arbiters during that period. Other claims languished in Foreign Offices and Departments of State without trial. Some claims date back for j nearly a century, and both principals and witnesses have died before the cases have been commenced. Other claims have been based on recent treaties. Many of the unheard cases were and are bad claims. Many grievances asserted in the period between the wars were wholly imaginary. Some were preposterous.
But—good or bad, preposterous or otherwise—let them j be heard) Let them have a trial before a fair court and be cleared from the books one way or the other!
Otherwise they will remain as fuel for fanatics or as simmering sources of irritation and discontent.
International Courts must possess both jurisdiction and j power to give to every nation and to every individual its and his "day in court" respecting all international controversies. A "day in court" does not necessarily mean a victory in court. It does mean a hearing, a fair trial by impartial judges authorized by the community to decide the issue, whatever the decision may be. Such courts should be readily accessible at all times. Such hearings should be possible whenever any* one with an appropriate interest in the matter believes that an international obligation has been broken or that an international right has been infringed. Far better will it be to establish many courts with little to do, than to permit any nation or any person to continue to say that there is no forum where a trial may be had, or that there is no alternative available but force.
Study of the Problem by Legal Societies
Every one of the legal societies represented at this conference has, no doubt, been studying possible solutions of this problem. In the United States of America it has been a prominent topic of discussion in our law associations. We no longer are debating the necessity of one international court. We assume that without debate. We are discussing the feasibility of a complete international judicial system. Many of the Societies of our sister Republics may have preceded us in concluding that this is necessary.
In the summer of 1942 the Honorable Frederic R. Coudert, who had just been elected President of the American Society of International Law in the United States, appointed a Committee on Cooperation with other Legal Societies.5 The Committee summoned for conference the leaders of several of the principal Bar Associations of the United States. On March 29, 1943 that group6 unanimously joined in offering a draft resolution for adoption by legal associations and societies reading as follows:
"That the administration of international justice requires the organization of a judicial system of interrelated permanent international courts with obligatory jurisdiction."
The resolution was adopted verbatim by the American Branch of the International Law Association, the American Foreign Law Association, and the Federal Bar Association. Similar or identical resolutions were adopted by the American Society of International Law, the New York State Bar Association and a number of other associations. The American Bar Association has taken no official action yet, but a Committee of the International and Comparative Law Section of the American Bar Association has approved the creation of a complete international judicial system. Resolutions upon the subject will come officially before the American Bar Association at its meeting in September.
This draft resolution proposing the "organization of a judicial system of interrelated permanent international courts with obligatory jurisdiction," was submitted during the year 1943 to members and faculties of 63 law schools in the Association of American Law Schools in the United States. 54 of the 63 voted in favor of it. 4 did not favor it. 5 did not vote.
In principle, therefore, there appears to be an overwhelmingly prevailing sentiment among lawyers of the United States of America favoring, as a part of the post war international organization, a judicial system of interrelated permanent international courts with obligatory jurisdiction.
National Experience with Related Problems
The details of such a judicial system obviously present problems both of principle and administrative detail. Fortunately the nations themselves have already wrestled with many of those problems. The courts of several American countries have been accorded jurisdiction over controversies between states, between citizens of different states, and between a state and citizens of another state.
In formulating plans for an international judicial system it will not be possible to follow precisely the pattern whichany individual nation has heretofore developed. Problems in the administration of international law do not find solution merely through national analogies. Nor should we be disappointed or deterred because of the possibility of imperfection in exploring new ground. Every nation has passed through tortuous periods of trial and error in creating its own courts. Few will assert that they have yet reached perfection.
The distinguished President of this Association, Lic. Carlos Sanchez Mejorada pointed out in his memorable address to the Federal Bar Association of the United States of America in January of this year, that the federal system of Mexico passed through a period of distress and of rivalry among states. But the development of the entire nation and the protection of the people's rights have been aided enormously through the creation of the splendid Supreme Court of Justice of Mexico with its division of four chambers and its system of district judges and of circuit judges.
In the United States of America, as you will recall, our Supreme Court at first was the only federal court that we had. It had originally six judges. Then three circuits were established and two of the six Supreme Court judges attended each circuit. In 1793 amendments permitted one Supreme Court judge to hold court. Later separate judges were chosen for our Circuit Courts. Eventually we created our present District Courts and our Circuit Courts of Appeal.
Soon after our Circuit Courts were created in the United States, there was a determined effort to abolish them or curtail their powers. It was said that they had nothing useful to do, that their work resulting from tangles of the Revolutionary War of 1775 would soon be concluded. A resolution to reduce the scope of the federal courts was introduced in our Congress in January, 1802. In support of the resolution the federal courts were characterized as a "wanton waste of the public treasury."7 The sources of litigation and controversy would, it was said, soon be "dried up."8 Short-sighted men argued that the jurisdiction of the federal courts was intended to relate only to "great national and foreign concerns" and not to cases "which could with propriety be left with the state courts."8 But the federal courts in the United States of America, and in the United States of Mexico and in many other American nations, have survived their early years of hazardous existence. They have been the instrumentalities which have made the perpetuation of effective government a possibility.
National "Bills of Rights"—the Power of the Courts
Almost all of the written Constitutions of 21 of the American Republics10 declare and emphasize the rights of individuals which may not be infringed by arbitrary governmental action. Many declare rights of states which may not be impaired by any over-all government. In most cases the courts in the American Republics are accustomed to protecting the rights of individuals and of states. In several American national constitutions, express power is conferred upon the Supreme Courts of the nations to override and declare unconstitutional any legislative or executive act which infringes a constitutional guaranty to a state or a person. In other American nations that power is actually exercised by the courts even though not expressly conferred by the national constitutions.
Lack of International "Bill of Rights"
Draftsmen of constitutional plans for World Organization have not been as solicitous for the protection of the rights of individual nations and of individual citizens as have been the draftsmen of national constitutions. There was, for example, nothing resembling a "bill of rights" applicable either to nations or individuals in the Covenant of the League of Nations. There was not even any statement as to whether the residuum of undefined powers rested in the League or whether it rested in the several member nations. Some of the plans now being circulated for a future International Organization have again omitted a fundamental declaration of rights of states and of individual citizens.
If a "Bill of Rights" is needed in the organization of a nation, it is doubly needed in any general international organization.
To say that an International Bill of Rights is not needed because there is no world "super-state," is not an adequate reply. Few men will now say that national sovereignty is unlimited. Few will deny the need for more effective International instrumentalities.
The natural concomitant of the omission of a declaration of national and individual rights is an unwillingness to confer upon International instrumentalities any real power. The yearning for organs capable of maintaining order, and of administering justice, throughout the world is well nighuniversal. But if the proposed international "Organization," or "Society," or "Community," or "League," or "Association" or "Union"—whatever it may be called—is to be granted effective powers, the nations and their citizens must know precisely what powers they are conferring, what powers will remain in them. They must have confidence that courts of law can protect those reserved rights against encroachment by any over-all Organization.
To define the rights of nations and of individuals, and to create international courts with power to protect those rights, is not to obstruct or retard the creation of a general international organization. On the contrary it will supply the very core and heart of it. It will permit of the creation and maintenance of effective instrumentalities.
We Can Afford to Experiment!
We can afford to experiment with an international judicial system. The cost of creating and maintaining 50 permanent international courts with perhaps 200 judges and 5,000 persons in their clerical and administrative staffs, and the cost of constructing and maintaining 50 buildings to house and maintain those instrumentalities, will represent a financial outlay per year less than is being extended every hour of the day at present in trying to restore a reign of peace and justice. The cost in misery and human sacrifice of settlement by the sword instead of settlement by judicial bodies, is incalculable.
An international judicial system, even if it should appear wasteful and inefficient in its early years, is worth a trial I When the Conference of International Jurists is called, anyone who counsels caution in essaying a bold program may assume a heavy responsibility for the future of humanity.
Many basic questions of principle will be presented for solution to such a Conference of Jurists. There will be problems which can be solved only if approached in a spirit of mutual confidence, with a disposition to make concessions and to compromise when unity of view is impossible. There must be a willingness on the part of the nations to surrender to such international judicial bodies a certain area of jurisdiction. Such voluntary surrenders of present sovereign rights will be cheap insurance. The dangers which some nations have envisaged are imaginary anyway. After all, international courts will presumably apply the local law of a particular nation in dealing with contracts and acts which found their origin in that nation.
A Few Possible Ways
There are obviously many ways in which such a system of interrelated international courts can be created. There might, for example, be an expansion of the present plan of separate chambers of the Permanent Court of International Justice, of which the are now three.21 The members of that court might themselves ride upon circuit throughout the World and either act as trial judges or as umpires of District or Circuit International Courts. The entire World might be divided for purposes of judicial administration into several regions, each containing a number of permanent courts with defined jurisdiction and with appeal on questions of law to a World Court. There might be an international circuit court in each national capital. The Permanent Court of International Justice might become the supreme body of a complete system—a body which in the future would exercise original jurisdiction in limited classes of cases, such as those involving the rights and obligations of nations as such (as distinguished from claims brought by nations on behalf of their nationals) and with appellate jurisdiction in questions of law in controversies in which original jurisdiction would lie with regional or other courts or commissions.
Each and all of these possibilities must be subjected to merciless analysis and debate. Any plan which cannot withstand that test must give way to others. No one man or group of men possesses all the wisdom which should be employed in the solution of the problem. But a solution can be found. It must be hammered out. If sufficiently bold and comprehensive, even though imperfect in details, it will be an accomplishment of which all who contributed to the solution may be justly proud.
No one expects perfection in international courts. However efficient they may become they will never supplant either violence or litigation. Domestic courts have not yet abolished either criminals or law suits. They never will. But they have provided orderly methods for dealing with them.
I offer you, therefore, no particular resolution for incorporation in the minutes of this meeting. I have ventured to urge with all the earnestness and seriousness which I possess, that upon our return to our respective nations we take active steps to bring about action by our governments to see that a conference of jurists is called at an early appropriate time, charged with the responsibility not merely of making a few casual amendments to the Statute of the Permanent Court of International Justice, but of providing for the erection and maintenance of a complete and adequate judicial system of interrelated permanent international courts, with obligatory jurisdiction.
Our gracious and generous hosts at this Conference have set an example of energy and action. When we leave these hospitable halls it will be our turn to act.
1 Argentine, Bolivia, Brazil, Canada, Chile, Columbia, Cuba, El Salvador, Uruguay and Venezuela.
2 United States of America, Costa Rica, Guatemala.
3 Ecuador, Honduras, Mexico.
4 Argentine Republic, on condition of reciprocity for a period of 10 years from date of ratification respecting disputes subsequent to ratification and excepting questions otherwise disposed of or already settled or questions falling "within the local jurisdiction or the constitutional regime of each state"—signed Dec. 28, 1935, no ratification yet deposited.
Bolivia on condition of reciprocity for a period of 10 years, ratification deposited July 7, 1936.
Brazil on condition of reciprocity and "as soon as it has likewise been recognized as such by two at least of the powers permanently, represented in the Council of the League of Nations"—condition met on February 5, 1932 and declaration renewed for 10 years from January 26, 1937 "with the exception of questions which by international law, fall exclusively within the jurisdiction of the Brazilian courts of law, or which belong to the constitutional regime of each state."
Canada on condition of reciprocity for 10 years from July 28, 1930 and thereafter "until such time as notice may be given to terminate the acceptance" respecting "situations or facts subsequent to said ratification" and excluding cases where other methods agreed upon, disputes with other members of the British Commonwealth of Nations, "questions which by international law fall exclusively within the jurisdiction of the Dominion of Canada," disputes submitted to or under consideration by the Council of the League of Nations, and "disputes arising out of events occurring' during the present war."
Colombia on condition of reciprocity, signed January 6, 1932, no ratification required.
Costa Rica on condition of reciprocity, signed before January 28, 1921 but no ratification either of protocol or of acceptance of Article 36 yet deposited.
Dominican Republic on condition of reciprocity, ratification deposited February 4, 1933.
Guatemala on condition of reciprocity respecting legal disputes of the categories set forth in Art. 36, signed December 17, 1926 but no ratification deposited.
Haiti unconditionally, effective Sept. 7, 1921.
Nicaragua unconditionally effective November 29, 1939.
Panama on condition of reciprocity, ratification deposited June 14, 1929 but notice of withdrawal of ratification given on May 27, 1938—protested by other states.
Peru on condition of reciprocity regarding situations and facts subsequent to ratification and excepting cases where other recourse agreed upon or disputes previously submitted to the Council of the League of Nations, signed September 19, 1929, ratification deposited March 29, 1932.
5 The Committee consisted of Amos J. Peaslee, chairman, Edward W. Allen, John P. Bullington, Percy E. Corbett and Arthur K. Kuhn.
6 The group included the President of the Federal Bar Association, the President of the American Society of International Law, several members of the Council of the Inter-American Bar Association including the distinguished Chairman of its Executive Committee and its distinguished Secretary-General, the President of the American Foreign Law Association, the President of the American Branch of the International Law Association, the President of the Association of American Law Schools, the Director of the Division of International Law of the Carnegie Endowment for International Peace, and several Committee Chairmen of the American Bar Association, the New York State Bar Association, the Association of the Bar of the City of New York, and the Law Librarian of Congress.
7 Debates on the Judiciary printed by Whiting, Leavenworth & Whiting of Albany, N. Y., 1802, p. 6.
8 Id., p. 7.
9 Id., p. 8.
10 All of the 22 American nations except Canada have written Constitutions, Canada looks to the British North America Act of 1167, as amended, and to other Acts of the British Parliament and to various Orders in Council, and instruments of the British Commonwealth of Nations, for its constitutional source of power. Canadian courts enforce, of course, the provisions of the English Bill of Rights which set forth many of the rights now expressly declared in written Constitutions of other American nations.
11 Chamber for Summary Procedure, Chamber for Labor Cases, and Chamber tor Transit and Communications Cases.