A century of arbitration: the International Court of Justice.

The International Court of Justice in the Hague had an extraordinary and unlikely beginning. Few can realise, even now, that it was the brainchild of Tsar Nicholas II, the murdered Tsar of Ekaterinburg, the weak and vacillating Tsar of the First World War; the same whose remains were re-interred last July, the eightieth anniversary of his atrocious death.

In 1898, when Nicholas had been Tsar for just four years, he called for an international conference to discuss disarmament. His motives for doing this were questioned at the time and have been questioned since. Was he concerned more with the ability of his own country to stand the financial strain of the arms race? This is the cynical view. Another reason was the publication that year of a six-volume work by Ivan Bliokh, an important Jewish railway financier, who depicted in a massive array of facts, statistics and projected casualty rates the grim horror of any future war. Bliokh had an audience with Nicholas and helped persuade him to issue his proposal in August 1898. Undoubtedly the Tsar was worried. Austria was re-equipping her artillery with modern field guns, which Russia was unable to match, but there were other reasons. The message to all the governments of the world lamented the economic, financial and moral effects of the arms race, and the less jaundiced of Nicholas's hearers thought he might go down in history as 'Nicholas the Pacific'.

His cousin (by marriage) Kaiser Wilhelm II of Germany was, predictably, hostile to the idea of the Peace Conference and the whole notion of disarmament. 'Imagine', he telegraphed the Tsar, 'A Monarch . . . dissolving his regiments sacred with a hundred years of history and handing over his town to Anarchists and Democracy!'

Less predictable, perhaps, was the response from another relation, the future Edward VII of Britain, still then Prince of Wales. He in time would be known as 'Edward the Peace-maker'. Yet he commented: 'As regards the Tsar's idea of disarmament throughout all nations, it is the greatest rubbish and nonsense I ever heard of. The thing is simply impossible!' (September 1899). Edward regarded his nephew as 'weak as water', and never altered his opinion, but to give the young and inexperienced Tsar his due, he persisted with his plans, and the Conference was convened at the Hague in May 1899.

Why was it convened at the Hague? Part of the reason at least must have been that Nicholas was also the cousin of the Queen of the Netherlands, Wilhelmina, who had just attained her majority and begun to reign alone. She was nineteen; Nicholas was thirty. Perhaps they both held hopes for a future without war and without arms.

Twenty European powers attended, along with the United States, Mexico, Japan, China, Siam (Thailand) and Persia (Iran). The Russian proposals for freezing armament levels was defeated, but the Convention did agree on rules of warfare, and established a Permanent Court of Arbitration. Such a court had never existed before, although the idea of arbitration was almost as old as history. Historians could quote the Scots putting their succession problems to the arbitration of Edward I in 1296; to the Spanish and Portuguese submitting to papal arbitration over claims in the New World in 1494 (the Treaty of Tordesillas); and more recently to the Alabama case between Britain and the United States, in 1871 and the Anglo-American Arbitration Treaty of 1897, although this last was subject to stringent British reservations and failed to obtain the approval of the United States Senate. Interestingly, a dispute between Argentina and Chile over the Beagle Channel had been submitted for arbitration firstly to Queen Victoria in 1896, who accepted the office of arbitrator, and then to Edward VII himself, who made an award in 1902. (This dispute was further referred to Queen Elizabeth II sixty years later, and her award was published by HMSO on December 9, 1966). So arbitration in an international sense was certainly not unknown, whether personal or through states. Decisions had been accepted and adhered to, but the dangers and pitfalls of this embryonic area of International Law were obvious.

The first test for Nicholas II was the Dogger Bank incident of 1905. This occurred in the early days of the Russo-Japanese war of that year. The Russian fleet had to sail from Europe to the Far East to meet the Japanese fleet. In the fogs of the North Sea the jumpy and trigger-happy Russian admirals shot at a herring fleet from Britain. One boat was sunk and two men killed, but Britain was understandably outraged. The Russian Ambassador in London, Count Benckendorff, accurately assessed the extent of Britain's anger and quickly recommended that both panics submit the matter to the International Commission of Inquiry at the Hague. Nicholas had to agree, if reluctantly, and eventually Russia paid damages of [pounds]65,000.

In 1907 the Second Hague Peace Conference was called. This time it drew a response from forty-four states, including eighteen Latin American countries. One should not underestimate the movement for peace and disarmament in the face of the arms race. The great Austrian writer and 'suffragette for peace', Bertha von Suttner, had written her influential book, Lay Down Your Arms, which was going into many editions. The dangers were apprehended, as Bliokh had stated, presciently, in 1898.

The hard fact remains that the Court did not of course prevent the catastrophe of 1914. Just before the First World War, Tsar Nicholas II pleaded with the Kaiser to help him send the dispute between Austria and Serbia to the Hague. The point of no return must then have been passed already.

The fact that the idea of the Court had come out of Russia - 'semi-barbaric' Russia - should not have surprised sophisticated circles so much, for a richly creative culture was also flourishing in Russia at that time. The establishment of the Court proved a landmark in many ways.

It pointed the way, as one writer has said, 'for the institutional development of organized international relations'. A panel of arbitrators was established with the intention of making their services available on a regular basis, and the First Conference adopted a Convention for the Pacific Settlement of International Disputes. The writer I.L. Claude, author of Swords into Ploughshares, in 1964 described the Hague Conferences as having 'an atmosphere heavy with unreality', and this underlines the diplomatic difficulties in the way of any state wishing to turn down the Tsar's invitation. It just might work. The British historian F. H. Hinsley, in 1967, pointed out the increase in the number of arbitration treaties post 1870 and the need to regularize international contacts by states new to the 'comity of nations', as being the driving force behind the legalistic approaches of the Hague and the inter-American conferences.

Whatever the motivations of Nicholas II were originally, once representatives of many governments were there, they experienced what we should now call 'conference diplomacy', even with recommendations ('voeux') being passed by majority vote.

A new world, the world of institutions to channel judgements on international disputes, was being painfully born. The wide membership of the two Hague Conferences of 1899 and 1907 was a precursor to the League of Nations Assembly, sadly only to be established after the conflagration of 1914-1918.

There were other significant factors too. The establishment of the International Court was a demonstration that the European state system, of which we are now experiencing a metamorphosis, with its European-based law, both Common and Civil, its European diplomacy and other European institutions, was being extended to include outsiders. The nations present at the two conferences demonstrate another significant factor: the first conference had included Japan, Mexico and Thailand, all states which had adopted in some way derivatives of the original Code Civile, the Code Napoleon of France of 1804. It was an exportable legal system, unlike that of Britain, which would only grow in Anglo-Saxon soil or where there was an Anglo-Saxon colonial population.

The second Conference drew eighteen Latin American states. Again, their legal systems were derivatives of the Spanish, and from that the French legal system. This was a strong bond. But how independent is the International Court of Justice? Is it not subject to the agendas of the member states? The structure of the International Court prevents any interference in its work by the signatories to its articles and the judges appointed by the members (now) of the United Nations may be representatives of certain streams of law throughout the world, but they are not the delegates of their states of origin. Their decisions are taken independently, not after instructions from headquarters, so to speak, and each case is adjudged by the standards of international law, not by an amalgam of national laws. International law in a very real sense began to build its own independent corpus in 1899.

The problem of enforceability of course remains. There is no permanent international police force to enforce decisions of the Court. After many decades of existence, the Supreme Court of the United States generated its own authority. That has not happened completely in the International Court, nor entirely in a similar institution, the European Court of Human Rights in Strasbourg, but perhaps it is happening.

Within the structure of the International Court there is also the Court of Arbitration, a smaller and secondary court, but still of great importance. States still have to consent to their cases being adjudicated by the Court, and some states will start by agreeing and will then walk out and refuse to accept jurisdiction. A classic case was that brought by Britain against Albania in 1949, the Corfu Channel incident. If this happens, it may be a very long time before historical developments and extra legal pressures allow for a solution. These very historical developments may allow of course further and very significant growth of jurisdiction within the Court or attached to the Court. The dissolution of the artificial construct of Yugoslavia after 1989 and the terrible ethnic cleansing which followed has at least resulted in the possibility of a Permanent International Criminal Court. Disagreements over form and timescale were seen clearly at the Rome Conference in June 1998.

Fifty years after the trials at Nuremberg the world is witnessing the continuing work of two tribunals established by the United Nations: one, the International Tribunal for former Yugoslavia, sitting in The Hague; two, the less widely-known International Criminal Tribunal for Rwanda, sitting in Arusha, Tanzania.

The principle of 'Complimentarity' is vital here. This is the same as 'Subsidiarity' in the European Union, i.e. the concept of hearing cases or disputes before the most appropriate authority, and the International Criminal Court will only act when national courts are unable or unwilling to act or prosecute. The reason these tribunals are established is to try 'core crimes', genocide crimes against humanity and war crimes. But the definition of war crimes is still under debate. As someone once wrote, history is written by the victors.

There are other areas, inevitably when many legal systems are involved, of dispute or disagreement: the question of fitting punishment, the role of the prosecutor, the question of some states imposing pre-conditions, and the principles and mechanisms of co-operation of states.

However, the various arrests since 1993 have transformed the prospects of the tribunal. As one commentator has put it 'This institution is not going to go away. We have turned the corner'. The tribunal in the Hague now has twenty 'villains' behind bars, and thanks to contributions from Britain, the United States and the Netherlands, new courtrooms were built. Eleven judges have been appointed by the United Nations to sit on the three-judge panels which oversee the trials. An international team of lawyers is blending Anglo-Saxon and civil law practices. There is however 'a gaping lack of precedent', but precedent of its very nature needs time.

It all seems a far cry from that extraordinary building, the Peace Palace in The Hague, the brainchild of a long-dead Tsar, whose portrait still hangs in a darkened corner of the Court of Arbitration. The guide, a psychology student from Leiden, admits that in two and a half years only three people have known it was Nicholas II who was the inspiration behind the Court. His gift, a remarkable and bizarre jasper vase, weighing between two and a half and three tons, embellished with the Romanov double eagle crest, is perhaps the most striking of all the gifts with which the original founders sought to grace the Court. The solid jasper vase was brought by special train from Russia. The gauge of the railway had to be widened to take the train, the railway having remained a narrow gauge due to the fear of invasion. Denmark - whose King was another relation of the Tsar - gave a porcelain fountain of seals and walruses, which is now cracked because of the changes in temperature and is in need of repair. The Danes will not finance this, even though it was their gift, so it is now under a copper dome for protection.

These gifts seem to be symbols of the original idealism and unreality of the concept of the Court, but it has lived to disprove its detractors. It was perhaps far ahead of its time. The Court itself has magnificent chandeliers, and reminds one of a Hapsburg ballroom; the Japanese room has chairs for all the seventy-four states set out, with the symbol of each nation on each chair. The Dutch foreign minister has a grander chair than all the others, as the Netherlands hosted the original Conferences. Everywhere one can sense protocol, but perhaps protocol with a purpose, and certainly with a provenance which has now paid dividends. The young artist who painted the ceiling of the staircase gazed through an open window and seeing a young girl in the garden used her as the model for the goddess Irene, the goddess of peace. Her real name was Sophia, the name of the goddess of wisdom, and the artist married her.

Engraved in mosaic on the floor of the staircase is the legend: Pax extinguit belli flammas. After one hundred years, is the world now turning to the solution offered by its unlikely founder?

Michael L. Nash, a Senior Lecturer in Law and European Studies at City College, Norwich, has been engaged in research into the relations between the Dutch and Russian royal families, the first part of which was published in 1998. This article was written after a visit to the International Court in 1998.