The Establishment of a Permanent Court of International Justice

Mr. Chairman and Gentlemen,--My first words must be words of thanks to your association and to the

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Right Hon. Charles J. Doherty, K.C., D.C.L., LL.D., was one of the leaders of the Bar in Montreal, a professor of Civil and International Law in McGill University, and a Puisne Judge in Quebec He entered the House of Commons in 1908 and became Minister of Justice in 1911. He was one of the Commissioners appointed by Canada and given authority to sign treaties concluded at the Peace Conference. He was an influential member of the Special Committee of Ten to which was referred the proposals for the establishment of a Permanent Court of International justice.

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officers in particular for affording me this opportunity to meet you today and to talk for a little while upon my subject, "A Permanent Court of International Justice". Now I know you are all busy men and that you will like me to get down to the meat of this matter at once, and therefore, I think I will dispense with any further preliminary observations. If I indulge in any such I fear that my friend, Sir William Mulock here, might be called upon to object.

Well, Gentlemen, you have had Sir George Foster and you have had my friend, Mr. Rowell, talk about the League of Nations and our work at Geneva and I do not know that I can add very much to what they have told you. I shall, however, endeavour, with your kind permission, to touch upon some phases in connection with the League of Nations which they may have overlooked. I propose to speak to you about "The Permanent Court of International Justice." Of course, the great objective of the League of Nations is peace. It was born of the common aspirations of mankind under the immediate influence of the horrors of a war such as the world has never known-the aspirations of peace; and no doubt it is to realize that aspiration that the League of Nations exists.

Many have been so carried away with that aspiration for peace that they have come to look upon it as necessarily and essentially the highest desideratum for humanity. Now I for one am not able to share that feeling. Notwithstanding all that we have gone through I think it still remains true that there is one thing more precious to humanity, one thing which the hearts of men feel that they cannot do without, one thing that is more absolutely necessary than peace, and that is justice. (Applause) More than that, I think we can safely say that without justice as its firm foundation, there is, there can be and there will be no permanent peace. Peace is a continued existence of stable justice. Realizing, if not to the full, at least in very large measure, what I have just been putting before you, the Peace Conference at Paris, when it drew up the covenant of the League of Nations inserted a clause imposing upon the Council of that League the duty of preparing the plan for a Permanent Court of International justice to be submitted to the nations and to be adopted by them. In making that provision the conference realized that such an organization and such an institution was, if not essential, at least highly desirable for the success of the League. They thought that without it there could be no permanent peace. Looking at it in this light I think it might be truly said that in contenting themselves with that one provision in regard to the Court of International justice the conference expressed itself content in having made one step towards a permanent peace. It was left to the body so instituted to create and work into it that part assigned to it, because after all, to my mind, the real heart of the League is a Permanent Court of International Justice. You may build much upon the conventions by which the nations have bound themselves together to refrain from going to war, to help one another to prevent the outbreak of war. They may bind themselves to undertake to enforce these laws; they may bind themselves not to go to war and not to resort to force either military or economic to attain their ends. They may make provisions to achieve all these, and I would not depreciate their usefulness, but after all, I think it will be conceded that these results are necessarily uncertain. They are uncertain because it is impossible to foresee how far each particular nation, when the moment comes for engaging in the altruistic operation of sacrificing itself to attain the general good, will respond. The result of that responsibility is uncertain because there is in the background, by no means invisible, the threat of war itself as the only method of preparing peace. Now all these undertakings are useful, but they will not attain the ultimate end unless we have a Court of International Justice. When we have a permanent and suitable jurisdiction throughout the world you will then have the essentials upon which you can depend to preserve that peace, and that is why after all, a Court of justice is the heart of the League, and by leaving it to the Council to provide for the creating of that Court, the conference left, and I think not unwisely, to the League itself, the task of taking up that work. It is for the nations themselves to determine the rights of nations. We can go very far back and find the existence of the aspiration for the provision of a Court charged with the duty of determining the respective rights of nations in accordance with International law. But we need not go any farther back than the Hague Conferences of 1899 and 1907 when we find that at both these conferences the question of arriving at the settlements of international disputes by means other than war was taken up and that an attempt was made to win acceptance for the decision of independent tribunals which occupied the attention of both continents. The trouble was, however, that these tribunals had no authority over their members except in immediate cases.

In 1907 the Hague Conference devoted itself to the task of securing an International Court, but it split on the rock of determining the formation of the Court, and all nations could not be represented on it. The selecting of the judges was a rather difficult matter. The institution itself consists of a number of arbitrators selected by each nation, each one selecting an equal number. But even then, after selecting their judges and after submitting their disputes to such a tribunal, there is no Permanent Court. Then again, such a tribunal is necessarily an arbitrary tribunal. There is also the question of the jurisdiction of such a tribunal. The League of Nations had to face these difficulties, so it formed a committee of International jurists to consider the problem and forward suggestions. These judges must be men of wide repute as International jurists or must be selected for other suitable qualifications. In order to obtain appointments, each judge must receive a majority vote both in the Council and in the Assembly of the League. The Arbitration Tribunal is liable to approach its task rather with the idea of bringing about a settlement as a compromise than with the idea of determining the respective right of nations. The establishment of an International Court of justice would do away with all this. As I said, in 1907 the Hague Commission devoted itself to the task and recognized the advisability of a Permanent Court, but it was unable to agree upon a method of determining the formation of the Court. Obviously all the nations could not be represented on a Permanent Court. That being so you found yourself at once met with the question of what to do with the smaller nations, the suggestion being put forward that all the nations should be on a footing of equality. The Hague Conference considered giving the Court compulsory jurisdiction of summoning any nation before it upon application of another member of the League. The Council of the League, however, favoured restricting the power of the court to dealing with cases which both nations concerned agreed to lay before it, and the League Assembly had accepted this proposal.

Well, a Committee met in the Summer of 1920 at the Hague and took up the work, I may say, where the conference of 1907 had left off. On that Conference were many of the most distinguished jurists of the day, among them a gentleman whom you all know at least by name, Mr. Elihu Root, who is one of the most distinguished citizens as well as one of the most eminent jurists of the great republic to the south of us. (Applause) These gentlemen have, I think, successfully overcome the difficulty with regard to the constitution of the court. There were tremendous difficulties in the way, but they were overcome. At all events it might be said that they had successfully solved the question of the Court's jurisdiction. Unfortunately that solution didn't come through the storm it encountered in the Assembly as to the Constitution of the Court. The Court is to be constituted by eleven judges and four assistant judges, and the number in time will be increased so that ultimately there will be fifteen judges and six assistant judges. The trouble was how each individual judge was to be selected. In the first place, only the best men are to be selected, men independent of national consideration, and there is to be no restriction except that each of the different civilizations and legal systems of the world are to be included. This is the basis upon which they are selected. Of course, only one representative will be allowed to each nation, and if more than one is nominated, a leader will be selected. As I said before, they must be all men of high moral character and fit for high judicial positions in their own countries or of wide national repute. (Applause) That is the general direction we are seeking, to have them upon that bench, and that is the class of men to be selected. These judges are to be selected by both the Council and the League, and they must be supported by a majority in both of these bodies. This, of course, gives the larger and more powerful nations greater influence in the choice of these judges, because upon the Council the larger nations are all represented and these have a vote in both bodies, while the smaller and lesser nations have expressed their willingness to adopt this situation. That, of course, is a departure from the usual method of absolute equality, but as I have said, they, the smaller nations, are apparently satisfied with this procedure. So much for the constitution of the court.

Now for the jurisdiction of the court. The great question upon which there was a divided opinion in the Assembly of the League was the question whether the jurisdiction of the Court should be compulsory or merely voluntary. That is to say, whether one nation should be entitled to assign or summon another before that Cmirt, or whether the Court's jurisdiction should be limited to the cases in which the parties are prepared and willing to submit. The Committee of jurists at the Hague, however, reported in favour of compulsory jurisdiction. The Council of the League, when the report came to them, modified it so as to do away with compulsory jurisdiction, and in that shape, the matter presented itself to the Assembly. I f that question had been settled by the vote, I think there is no doubt that an overwhelming majority would have voted to re-establish the suggestion of the Hague Committee, and voted, therefore, for compulsory jurisdiction. They were met, however, by the firm resistance on the part of the greater nations which didn't feel ready, at all events at the present, to subject themselves to compulsory jurisdiction. I think we will all agree, and I think the great powers ought to agree, that the suggestion by the Peace Conference is the ideal system. (Applause) You have only to give the matter a moment's thought to see that in no other way would the problem be solved, and the solution be fair to everyone. Of course, there are bound to be obstacles in the way and we must see that we don't fail to attain our purpose. You have to recognize existing conditions, and when you cannot get the whole loaf, it is wisdom to take the half loaf. (Laughter) I think that applies to the constitution of the Court as it is at present. These results of the Assembly, of course, required unanimity, because unless you get unanimity upon this important question you run the risk of defeating your object, even with compulsory jurisdiction. I think the fact that we have got a court, that we have got over that very great difficulty, speaks volumes for the untiring energy, and if I may use the word, pertinacity, of these men who strove to bring about such good results. We have now got the court and so have made a very great and substantial advance already. At the same time you have to recognize certain facts. You must understand that the great powers don't need the court for the simple reason that they are great powers; they can have their own way and can force their desires upon the smaller and weaker nations with the powers which they have in their hands. It is the smaller powers that have the greatest interest in this court, because they are not in a position to maintain their rights by the exercising of force other than their own hands. So that when you approach this question it is the great powers that have to make the sacrifice if compulsory jurisdiction is to be accepted. I don't want to state that in my judgment that is not a sacrifice that would be proper for them to make; I only point out as a matter of fact something which is to be fairly considered when you are distributing approval and blame between the lesser and the greater powers. But when we are doing so much for the lesser powers, and when they recognize, as they must, that they are the great beneficiaries, there is to my mind no very special reason why we should cover them with enconiums for standing up for that right, because after all, it is to their interest just as much as, or even more, than it is to that of the greater powers. But when we go back to the greater powers and ask them to exercise that right we are asking them to sacrifice their interests. Now, I don't want to exaggerate the importance of the great and ultimate good which will result from compulsory jurisdiction-there is no reason why I should, because we must recognize that it is going to be of inestimable benefit to mankind. There is every reason to believe and hope that this is going to be a success, but, of course, that success chiefly lies in the hands of the greater powers. It is something which should commend itself to the judgment of humanity, and if we think that it can be brought about and that condition can be maintained, you will have gone a long way towards establishing a permanent peace. Who doesn't want a permanent peace? Once you have a Permanent Court of International justice you will have the public opinion of the entire world that we are exercising, if we may flatter ourselves, an irresistible pressure upon those who are standing out against the acceptance of compulsory jurisdiction.

I think we may congratulate ourselves on what has been done towards the establishment of that Court and upon the jurisdiction that has been conferred upon it. I have no hesitation in saying that in my mind there is no reason why it should not bring about the desired result. One or two nations were not at first in accord with our proposition, but we ultimately got them to see that it was the only way in which there was the remotest chance of gaining a permanent peace; and finally it was agreed that they should have the privilege of inserting for themselves a declaration; and with that protocol they accepted compulsory jurisdiction as between them and all other nations accepting compulsory jurisdiction. A large number of nations have signed the convention or protocol with that declaration in it, so that we have got a good start now towards the ultimate result.

Now, of course, I feel that time with you gentlemen is precious, but before I sit down I want to say a word or two more. We have every reason to hope, as I have endeavoured to point out, that the heart of this covenant has fairly got started, and that it will now continue to beat and do this work for the benefit of the whole body as time goes by. You might say, however, that there is still a great deal of work ahead to be done before much really will be brought about. As time goes on you will, I hope, realize that our aims and aspirations are not fruitless. I think it is as true today as it was away back in 1713 when a certain French Cardinal said, with regard to a similar proposition for the establishment of a court of this kind after he had heard everything said in favour of it, "Yes, yes, it is magnificent, but you are forgetting the preliminary conditions. You have forgotten that you must begin by sending a troop of missionaries to prepare the hearts and minds of the contracting people." Now, I hope that is not true today in the same degree that it was on that day, but I am afraid people still require a great deal of missionary work before we can get them to realize the immense boon that is being prepared for them, and to avail themselves of it for the greater good of humanity. Let us hope that they realize what it must mean to them and to future generations. It is a work in which we can all do our little or greater part. It is a work to which we all can very well, I think, turn our attention. People, after all, don't know a great deal about questions of this kind, and I doubt if they have had brought home to them anything more effective in the way of a real and lasting peace than the value of an institution of this kind to the world, not only to one nation or one country any more than another. but to all countries and nations alike and to each country among the others and to each people with the others. (Applause)

That leaves me just one word more to say. I have been talking to you about great wide world matters, and I am glad to realize that you all take an interest in these world-wide matters, but we must not forget that, after all, our first duty is here at home in Canada. It is well for us not to forget that, not merely because we live in Canada and our interest is in her progress, but because we really have at heart the advancement and the best interests of the world in general, because if Canada is going to exercise the influence which under God's providence, we all trust she will, in all these matters of world-wide interest it is essential that she should be solidly built up herself. Her material resources must be developed to a greater extent; but more than that, we should see to it that her people are welded together, that her people have a proper understanding of what they owe to her, a proper understanding of the duty that a Divine Providence has given them-of the responsibility such boundless resources impose upon them. This country should play a great part in the world's future destiny, but we shall only play that part by playing our proper part within that inner League of Nations which is known as the British Empire, whose name this Club honours itself by bearing. (Loud applause) We have each of us our share to do in the building up of this country, doing that which is best for the country, looking to the betterment first of all of our domestic League of Nations, if I may so call it, and then, to the greater and wider League of Nations.

Let me in conclusion say one word as to the method in building up a real League of Nations and in the advancement of that work. We hear it said very frequently that after all, a great success like that will depend on the English-speaking races of the world. I don't want to question the truth of that proposition, but might I suggest that that is not the most necessary thing, but after all I think there is something else that should be taken into consideration. In the first place, we ought to be more keen in realizing the success of the League of Nations. There are other nations in the world, and these nations-some of them at any rate-wield a great power in contributing to the success or failure of a Permanent Peace. There must be complete harmony among the different nations. There must be a complete understanding. Without these two essentials a permanent peace is an impossibility. While other nations, other smaller nations, look to the British Empire for support, they must do their own share. Let me say that we should be very much mistaken if we did not recognize that other nations have a great deal to give to us. Anyone who has had the privilege of taking part in the meeting of the Assembly and taking some little part, at all events, in the conference in connection with peace, could not but be impressed with the great trust and confidence, which, let us say, the people of France repose in us. Speaking generally, the people of the Latin Races-and I am sure my colleagues will bear me out in this-displayed a warmth of disinterested devotion that was a source of the greatest gratification to us-these men that represented their respective countries at Geneva; that was the most hopeful sign of many hopeful signs that we saw there. Let me say that I and my colleagues have every reason to believe that by the co-operation of the other great nations of the world a permanent and lasting peace will be found in a Permanent Court of International Justice. (Loud applause)

Mr. President and Gentlemen,-I have been asked to move a vote of thanks to Mr. Doherty for his very illuminating and impressive review of the new Permanent Court of International Justice. In doing so, I simply want to pay tribute to the part which Mr. Doherty himself has taken in the work we have before us. He mentioned that the Council of the League of Nations had named a Commission of Jurists of International repute to meet at the Hague to form the scheme. When the scheme came before the Committee it named a commission of ten to pass in review the work of the Council at the Hague. Of that ten, five were five of the original Committee at the Hague, and of the other five, one was your guest today, Mr. Doherty. I know, not only from personal observation, but from other sources, that the other members of the Commission appreciated and valued very much the assistance that Mr. Doherty gave them. I am sure the Empire Club is honoured today in having him here, and I now call upon you to express your appreciation. (Loud applause)