Second—We must recognize, however, that the questions within the
jurisdiction of such a court would certainly not include all the
questions that might lead to war, and therefore we should provide some
other instrumentality for helping the solution of those questions which
are non-justiciable. This might well be a Commission of Conciliation—a
commission to investigate the facts, to consider the arguments on both
sides, to mediate between the parties, to see if some compromise cannot
be effected, and finally to formulate and recommend a settlement. This
may involve time, but the delay, instead of being an objection, is really
one of the valuable incidents in the performance of such a function by
a commission. We have an example of such a Commission of Conciliation
in the controversy between the United States and Great Britain over the
Seal Fisheries. The case on its merits as a judicial question was decided
against the United States, but the world importance of not destroying the
Pribiloff Seal herd by pelagic sealing was recognized and a compromise
was formulated by the arbitral tribunal, which was ultimately embodied in
a treaty between England, Russia, Japan, and the United States. Similar
recommendations were made by the court of arbitration which considered
the issues arising between the United States and Great Britain in respect
to the Newfoundland Fisheries.
Third—Periodical conferences should be held between the members of the
League for the declaration of principles of international law. This is
really a provision for something in the nature of legislative action by
the nations concerned in respect to international law. The principles of
international law are based upon custom between nations established by
actual practice, by their recognition in treaties and by the consensus
of great law writers. Undoubtedly the function of an Arbitral Court
established as proposed in the first of the above suggestions would lead
to a good deal of valuable judge-made international law. But that would
not cover the whole field. Something in the nature of legislation on the
subject would be a valuable supplement to existing international law. It
would be one of the very admirable results of such a League of Peace that
the scope of international law could be enlarged in this way. Mr. Justice
Holmes, in the case of Missouri vs. Illinois, to which I have already
referred, points out that the Supreme Court in passing on questions
between the States and in laying down the principles of international
law that ought to govern in controversies between them should not and
can not make itself a legislature. But in a League of Peace there is no
limit to the power of international conferences of the members in such a
quasi-legislative course, except the limit of the wise and the practical.
Public-domain text, read in full here on John Shaqi.
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