en litige, les décisions efficacement attaquées sont seules infirmées. Si le tribunal rejette le recours, l'amende déposée est en courue. Les frais de cette procédure sont à la charge de la partie qui a succombé. La décision du tribunal est définitive. Un renvoi du litige pour procédure nouvelle au tribunal arbitral qui a jugé, ou à un autre, ne peut avoir lieu que du consentement des parties. (Traduction de M. ALPH. RIVIER). THE HIGH TRIBUNAL OF PUBLIC INTERNATIONAL JUDICATURE, By A. P. SPRAGUE. From First Prize Essay, "Pro pace nationum," on the PRELIMINARY, 1. The department of judicative public international law is the most positive and constructive of the departments. 2. It is, in some respects, the most important; for it is con sidered the international desideratum of the age that there should be a Tribunal for the settlement of international controversies. 3. The judicative branch of the Code being of a constructive character, should be prepared with a care and judgment quite equal to that required in the substantive branch. 4. Judicative law includes the constitution and jurisdiction of a Tribunal for the settlement of claims and controversies and the mode of procedure in the cases which shall come before the tribunal. 5. The constitution of a Tribunal of an international and public character is, obviously, of more importance than the rules of procedure. The latter must, necessarily, be special and technical, and can be easily determined; and, whatever mode of procedure may be adopted, would be likely to give general satisfaction. THE CONSTITUTION OF THE PUBLIC INTERNATIONAL TRIBUNAL OF JUDICATURE OR ARBITRATION. 6. It is essential to the dignity and influence of the Tribunal that it be composed of persons of an international and judicial character. 7. It is desirable that the Tribunal should possess variability or elasticity combined with permanence and cohesion. This cannot be the case where the Tribunal consists of judges appointed as occasion may require, to sit only in the cause for which they are required (tribunal ad hoc); the tribunal would lack permanence and cohesion. Whereas, if the Tribunal should be composed of a number of judges, appointed by each of the associated Powers, to hold office during life, and all the judges to sit upon each case, the tribunal would be rather unwieldy, so to speak, and there would not be sufficient variability of judicial talent and international representation; although the permanence of the tribunal would, of course, be assured under such a system, and the results of the decisions would be a great body of international interpretive law. 8. A medium must, therefore, be sought, such as— A Tribunal consisting of a number of judges appointed for a long period (for life), one or more from each Power, only a part of whom shall sit in any single cause. By this means the number of judges may be large enough to represent effectually the different interests of the various associated Powers; and by a selection from this number the acting court or tribunal may be sufficiently small to be efficient. 9. If the selection is given to the contending Powers, as it should be, each cause will be heard and decided by judges especially representing the parties to the controversy. 10. The location of the Tribunal should be left to the choice of the judges, with the limitation that the Tribunal shall not have its sittings at any place within the territory of either of the contending parties, nor outside of the territory of the Association of Powers. THE JURISDICTION OF THE Tribunal. In respect to the jurisdiction of the Tribunal various schemes may be devised: 11. It has been proposed by some writers to erect a tribunal which shall have power to settle all disputes between nations. This was the scheme of Emery de la Croix, in his "Nouveau Cynée"; of Castel de St. Pierre, in his "Projet de la Paix"; and also the Plan of Bentham. 12. But the Tribunal here proposed is not a common-law tribunal, but a statutory one, a tribunal whose jurisdiction should be defined. I have already considered the impracticability of submitting all questions to an international tribunal for settlement in the present state of international sentiment; and, under a partial, political codification (of international law), such as that here proposed, there is no necessity or propriety for a tribunal having a jurisdiction any more extensive than the extent of the substantive rules. 13. For the purpose, however, of indirectly including the unwritten public international law in the code of judicative law, it may be expedient to establish or recommend an additional tribunal. 14. This additional tribunal might be termed a Tribunal of Arbitration, and have jurisdiction over all questions which the parties in controversy shall agree to submit to it. 15. From this tribunal appeals might lie, in cases involving an interpretation of the code, to the principal tribunal, which might be denominated the High Tribunal of International Judicature, and have not only appellate, but original jurisdiction in matters arising under the code. 16. Thus, let it be provided that there shall be a High Tribunal of public international judicature, having power to hear and determine questions arising under the Code, and having both an appellate and an original jurisdiction in respect to such questions; also that there shall be Tribunal of public International Arbitration, having its constitution or existence in the option of the contending Powers, and its jurisdiction co-extensive with the option of the contending Powers; that from this tribunal appeals shall lie to the High Tribunal in causes involving the construction or interpre tation of the Code-that in all other cases, or in cases where the parties so agree, the decision of the tribunal of arbitration shall be final. 17. By such a scheme the Code would encourage, though not require, adjudication or arbitration upon the unwritten as well as written law. ARRANGEMENT OF THE WHOLE SCHEME. The whole scheme of judicative law will then be susceptible of the following arrangement : 1. The High Tribunal of Public International Judicature shall consist of at least as many judges as there are Powers, and, under some conditions of the Association of Powers, of more judges than Powers. 2. If there are fifteen or more Powers, there shall be one judge appointed from each Power; if less than fifteen and more that six Powers, there shall be two judges appointed from each Power; if less than seven Powers, there shall be four judges appointed from each Power. 3. The hearing of a cause or question and its decision shall be by nine judges-four to be chosen from all the judges by each party, and the ninth, by the eight so chosen, from the remaining judges. 4. If at any time, by the accession of new Powers to the Association of Powers, the number of judges shall become too great, one (or more) shall be retired by each of the Powers; or if, at any time, the number of judges shall become too small, by the withdrawal of Powers from the Association, each Power shall appoint an additional number. 5. In the event of the death of a judge, the Power by which he was appointed would, of course, be required to fill the vacancy. 6. The original jurisdiction of the High Tribunal of Public GG |