Chapter V any other to the public opinion of America, was Appointment found to be entirely impracticable, as well as absoCourt in each lutely unacceptable to the Continental Powers. by the highest State rejected. There is no highest Court for the entire Empire of Austria-Hungary, and the peculiar relations between the different parts of that Empire are not calculated to make joint action by the two highest Courts practicable or desirable. In Russia the highest Court consists of a senate of one hundred members, whose coöperation in the matter of appointments would contradict all national traditions. Similar objections, based, however, entirely upon the anticipated actual workings of the scheme, were raised by many members of the Conference. The American representative on the Comité d'Examen thereupon proposed the amendment in a permissive form, to the effect that it should apply wherever practicable or wherever the circumstances permitted. But even this plan was emphatically negatived, the only vote in its favor being that of the United States of America. The British Delegate, Lord Pauncefote, abstained from voting, explaining that while he favored the idea in the abstract, he was convinced that it was impossible of application in Continental countries. During the discussion one representative after another of the States having members on the Comité d'Examen announced that the idea had been suggested to his Government, but that it had been received with positive disfavor, not only because of its alleged impracticability, but as being, according to Continental ideas, vicious in principle. The organization of the Courts in nearly all Continental countries is based upon the Chapter V traditions of Roman jurisprudence, and these do not favor any action on the part of a judicial tribunal having reference to the selection of a man or men for any particular purpose, even if the latter be judicial in its nature. Furthermore, in several large European States, notably Germany, the rules governing the practice of the law are such as to prevent the members of the highest Court from having any direct knowledge of the ability or reputation of many of the most noted judges and lawyers in the country, since practice before the highest Court is restricted to residents of the city of its location and to members of its particular bar. Under these circumstances the members of these particular Courts are not, like the justices of the American Supreme Court or the members of the Privy Council of Great Britain, the best possible advisers, with reference to the selection. of a creditable representative upon the great tribunal, and it was even stated that they were, in many countries, about the last authority to whom the appointing power would be likely to turn with success for such advice and cooperation. Out of courteous regard for the United States, and in order to recognize the fundamental idea upon which this proposal was based, the Comité d'Examen directed its reporter to emphasize in the official report the importance of a complete disregard of all political considerations in the choice of members of the Court. The American representative cordially acquiesced in this decision. Chapter V Manner of selection of the members tribunals. ARTICLE 24. Whenever the Signatory Powers wish to have recourse to the permanent Court for the settlement of a difference that has arisen between them, of particular the arbitrators selected to constitute the Tribunal which shall have jurisdiction to determine such difference, shall be chosen from the general list of members of the Court. If such arbitral tribunal be not constituted by the special agreement of the parties, it shall be formed in the following manner: Each party shall name two arbitrators, and these together shall choose an umpire. If the votes shall be equal, the choice of the umpire shall be intrusted to a third Power selected by the parties by common accord. If an agreement is not arrived at on this subject, each party shall select a different Power, and the choice of the umpire shall be made by the united action of the Powers thus selected. The Tribunal being thus constituted, the parties shall communicate to the Bureau their decision to have recourse to the Court, and the names of the arbitrators. The Tribunal of arbitration shall meet at the time fixed by the parties. The members of the Court, in the discharge of their duties, and outside of their own country, shall enjoy diplomatic privileges and immunities. It is believed that this Article will be found to provide for every possible eventuality in any actual dispute. It is quite probable that in many cases the four arbitrators selected by the parties may not be able to agree among themselves upon the subject of the umpire. It is also conceivable that the same third Power charged with the duty of selecting the umpire would not be agreeable to both litigants. It is, however, hardly probable that two neutral Powers, each selected in analogy to the appointment of "seconds " Chapter V under Article 8, should not be able to agree between themselves upon a suitable arbitrator or umpire for any conceivable controversy. the umpire by the litiga The chief delegate from Sweden and Norway, The choice of Baron de Bildt, proposed to provide expressly that subject to either litigating Power might object to the choice of ratification the umpire, selected even with the aid of its own ting States. chosen arbitrators. It was, however, pointed out in the debate by M. Asser of Holland and Mr. Holls of the United States, that the agreement to arbitrate is not complete under this Article until each party has communicated its willingness to arbitrate to the international Bureau, together with the names of all the arbitrators whose judgment is to be invoked, including, of course, the umpire. It follows that the votes for umpire on the part of the arbitrators first selected by the parties are subject to the ratification and approval of the two Powers in controversy, inasmuch as either might decline to communicate the name of an obnoxious member of the tribunal to the international Bureau. In other words, in voting for the umpire, the arbitrators first selected act simply as agents for the Government which has selected them, and the possibility of any Power being bound by the judgment of a court, a majority of whose members might be selected without the concurrence of each litigating Power, is carefully excluded. Any different provision would infringe upon national sovereignty, and hence be entirely inadmissible. Chapter V Dissent of These opinions were, on motion of Baron de Bildt, spread upon the minutes as authoritative interpretations of the Article, so far as his Government was concerned. Chevalier Descamps dissented very emDescamps. phatically from the views of his colleagues, holding that the Governments were bound by the choice of their nominees, and the question was not decided by the Comité d'Examen as a body. privileges and immunities. Diplomatic The exact extent of the diplomatic privileges and immunities to be enjoyed by members of the Court outside of their own country, and also within its limits, if the tribunal of arbitration should be convened there, has not been fixed in detail. It was recognized by the Committee that the subject might well be left to the good sense of the parties concerned, with the result that satisfactory rules of procedure and precedence would no doubt be evolved in time. It will no doubt tend to increase the dignity and importance of the Court itself, if its members. are recognized the world over, and even when not selected to sit upon any particular bench, as bearing an international or diplomatic character, and holding, as it were, a particular trust in behalf of peace and humanity. It would, however, defeat the very object of the Court, if any questions personal to the members themselves were permitted to assume the character of serious international problems, even to the extent which has been true in the history of international law, regarding the rights and privileges of ordinary diplomatic representatives. In this respect, as in many others, much will depend upon |