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NORTHWESTERN |
UNIVERSITY |
LIBRARY
EVANSTON
ILLINOIS
" PERMANENT ARBITRATION"
IN
MODERN INTERNATIONAL LAW.
A Paper
HEAD AT
TUB CONFERENCE OF THE INTERNATIONAL LAW ASSOCIATION,
AT GLASGOW, 20TH AUGUST, 1001,
The Right IIunouhable LORD ALVERSTONE,
Lord Chief Justice of England, presiding
BY
W. EVANS DARBY, LL.D.,
Sccretar// of the Peace Society.
SECOND EDITION.
PEACE SOCIETY :
17, NEW BROAD STREET, LONDON, E.C.
190 1.
" PERMANENT ARBITRATION "
IN
MODERN INTERNATIONAL LAW.
♦
B iRapcc
READ AT
THE CONFERENCE OF THE INTERNATIONAL LAW ASSOCIATION.
AT GLASGOW, 20TH AUGUST, 1901,
The Right Honourable LORD ALVERSTONE,
Lord Chief Justice of England,presiding.
BY
W. EVANS gARBY, LL.D.,
Secretary of the Peace Society.
SECOND EDITION.
PEACE SOCIETY :
47. NEW BROAD STREET, LONDON. E.G.
1901.
LONDON
PRINTED BY WERTHEIMKR, LEA & CO.,
46 & 47, LONDON WALL, AND CLIFTON BOUSE,
WORSHIP STREET, FINSBURY E.C. »
"PERMANENT ARBITRATION"
ik
MODERN INTERNATIONAL LAW.
IN discussing the sources and the validity of International
Law, too little, it seems to me, has been made of the
act and the authority of International Agreement, and.
therefore, of the formative influence of those instruments
in which that agreement has definite form and embodiment.
Consequently the very character of International Law
has been questioned and its authority impugned. " The
proper nature of International Law," wrote Professor
Cairnes some years ago, "is still a subject of controversy.
On the part of Bentham and his followers, and not less by
a very different school, Savigny and those who accept
his teaching, a distinction in character has been recognised
between the rules which regulate international intercourse
and the municipal code of States. On the other hand, there
are writers on International Law who do not perceive, or
refuse to acknowledge the relevancy of, this distinction.
Dr. Phillimore and Dr. Twiss, for example, have contended
that International Law is ' law ' proper—law that is to say
in the same sense in which an Act of Parliament is ' law.'"
Alleged Source of International Law.
In reply to the question, What is the source of Inter¬
national Law ? Cairnes maintains that " the answer given bj
Bentham, and since his time more precisely stated by his
disciple Austin, must be allowed to be satisfactory. Inter¬
national Law is merely the formal expression of the public
opinion of the civilised world respecting the rules of conduct,
which ought to govern the relations of independent nations,
4
and is consequently derived from the source from which all
public opinion flows—the moral and intellectual convictions
of mankind." He argues, that this is the true character of
International Law may be shown historically as well as on
abstract grounds—from its genesis in the writings of publicists
and the decisions of International Tribunals, no less than
from the nature of the case, by reference to the sphere of its
operations as affecting the conduct of independent States.
Grotius, he insists, derived that body of doctrine which he
gave to the world as the "Law of Nations" from two
sources—the " Law of Nature" and the agreement of man¬
kind as evidenced in the testimony of the learned. . . .
Subsequent writers, as well as the actual administrators of
the international system in Prize Courts, Congresses and
other International Tribunals, have "for the most part
followed substantially the method of Grotius." The staple
of the 'Law of Nations' is thus public opinion—public
opinion embodied in usage, expounded and generalised in the
treatises of publicists, interpreted and enforced in Inter¬
national Courts. And, indeed, he asks, " from the nature of
the case, what else than public opinion could International
Law embody ? What but moral control can sovereign
Powers, consistently with their sovereign character, acknow¬
ledge and undergo ?"
Real Source of International Law.
To the question, What else than public opinion could
International Law embody ? I answer, the volition, agree¬
ment, and authority of the parties themselves. Formally
expressed and solemnly ratified, these, while backed and to
some extent controlled by public opinion, may furnish all
the moral control necessary. The will of sovereign peoples
expressed through their constituted authority may as surely
create and impose a law as the representatives of the same
peoples may pass an Act of Parliament.
Reference has been made at this length to the opinions of
Cairnes because still, to a very large extent, he represents
5
current criticism and popular opinion about International
Law itself.
A Later Theory.
A more modern writer, for instance, urges that the fact that
International Law has not yet, as positive legislation, reached
its final phase of complete development, is what has induced
certain authors to deny even its existence. " It lacks," they
say, " all the character of a positive law : a legislator, a code,
a judge, and a coercive sanction."
One might as well, he urges, reproach a child for not being
a grown-up man. National societies exist each under the law
suitable to its state of development, but international society
not being as yet so organised as national societies are, there
does not actually exist any superior power, legally constituted,
above these various societies with the object of enacting
common legislative measures, of establishing tribunals charged
with the duty of securing deference to them, and of carrying
out the sentences given in conformity with their provisions.
International Law, however, does exist. It embodies itself in
custom, and in the treaties or conventions which the inter¬
national entities form between themselves.
Still the " Method of Grotius."
There is, here, a larger recognition of actual fact. But the
critic is still following " the method of Grotius," when he
argues, that just as there could not be two moralities for him
who admits the existence of a moral law, so there can exist
only one single identical law for individuals and for nations,
and its essential principles, recognised by all civilised peoples,
ought to apply everywhere and always, without modifica¬
tions or exceptions; that this law exists, and in so far as it
applies to nations, fictitiously considered as persons, subjects
of law, takes the name of International Law; and when
he goes on to say of the treaties themselves: " These instru¬
ments do not create the law, but they recognise it, they pro¬
mulgate it in a way, and constitute it, henceforth, as the law
a 3
6
of the parties, between whom the instruments are made, who
are obliged morally and juridically to pay respect to it.'
The fact however remains that they do establish the law, and
do practically create it, just as much as an Act of Parliament
may do, and they do so probably with more deliberation than,
and certainly with as much authority as, those of a Parlia¬
mentary majority which passes the Act.
International Tribunals.
The law, thus established, necessitates its International Tri¬
bunal, and this is met with again and again, if not always as
a permanent institution, as it is already in some instances,
at least in an occasional way, under the form of Boards of
Arbitration to which States more and more incline, so as to
entrust to them the solution of differences which arise.
Arbitration Agreements, instituting Arbitration for special
and given cases, and still more, general treaties of Arbi¬
tration, which are becoming so frequent in our day, prove,
by their very existence, the existence of International Law,
which is both their cause and their raison d'etre. Some¬
times they create the law, even to its ultimate details,
as in prescribing the procedure and conditions of the
Courts. More than that, they establish the authority of
International Law. It is true that these legal agreements
which are formed between international personalities cannot
logically have any other cause than the will of the peoples
whom these personalities represent; but these peoples are
themselves sovereign authorities; the law established by
their agreements is fast crystallising into a code ; a judicature
has at length been created; and behind all are the moral
character and opinions of the peoples themselves, which
furnish the only effective sanctions; so that we have all the
conditions of actual positive law.
Definition of Arbitration.
The widest and simplest definition that can be given to
Arbitration is that " it is the judgment of a cause by a third
party designated by the contending parties."
7
Almost all positive legislations permit individuals, instead
of having recourse for the settlement of their differences to
the officially appointed magistrates, to unite in nominating a
judge of their own selection and possessing their confidence,
who will give a valid and compulsory decision under certain
conditions imposed by the appointed rules of procedure : such
is private Arbitration.
Extended to the international domain, Arbitration is the
institution to which two or more States have recourse when
they agree to refer to Arbitrators the judgment of a dispute
which divides them at the time the agreement is formed, or
which may divide them in the future.
Arbitration Occasional or Permanent.
Thus, International Arbitration may be " occasional" or
" permanent." If the question in dispute has already arisen
at the moment when the agreement for Arbitration intervenes,
Arbitration is said to be " occasional," or a posteriori; for it is
constituted to meet the special case to which it is to be
applied, and subsequent to the appearance of the difference.
If, on the contrary, the States enter into an agreement in
advance, by a valid international treaty, to submit to Arbi¬
trators the solution of such disputes as may be specially
determined or defined, or of all disputes which may arise
between them in the future, the Arbitration is said to be
" permanent," or a priori; for such an engagement is binding
on the parties from the day in which it is formed, in a manner
permanent and anterior to every difficulty that may arise.
" Arbitration Clauses."
In this case, the agreement may take the form of a clause
inserted accessorily in a treaty having for its main object
any matter relevant to International Law, or it may be the
subject of a separate treaty expressly entered into for the
purpose of applying the principle of Arbitration. The
agreement is said to be "special" or "general," according
a 4
8
as it refers to a particular difference or class of differences
provided for by the treaty, or as it submits to Arbitration
all possible differences which may arise, excepting those
reservations which may be made by the contracting parties
in regard to such questions as may be deemed by them
unsuitable for reference to Arbitration.
In either case Arbitration is a genuine suit, unfolding
itself before judges, chosen by the parties, it is true, but
legally rendering an obligatory sentence by virtue of the
treaty, or Arbitration contract, which appointed them.
" Facultative " or " Obligatory."
Arising out of this difference there is another; Arbitration
maybe either " facultative " or " obligatory." The conclusion
of the agreement for Arbitration is voluntary (that is,
" optional" or " facultative"), in the case of an isolated
Arbitration, in the sense that it cannot be imposed upon
one of the parties by the other; it is so no longer when there
exists between the parties an agreement which establishes
a legal obligation to refer to Arbitration. The distinction
is made in The Hague Pacific Convention in reference to
its application to particular instances as they arise. The
decision is, of course, always obligatory: the distinction
applies only to the reference.
" Occasional " Arbitration.
It has been often said that civilised man is especially dis¬
tinguished from the savage by the faculty of anticipating
the future. But that is the second step even for the civilised
man. He has first to deal with the past, and he is fortunate
if from its experiences he acquires the prevision which also
means provision. It is not too much to say that the century
just closed was pre-eminently the period of' Arbitration, and
the practicability of this principle of International Law was
proved by the historical fact of over two hundred instances
in which that principle was applied.
From time to time these instances have been reported at
9
these Conferences of the International Law Association in
papers presented by Mr. H. Richard, Mr. David Dudley Field,
and others. But these have been mainly—indeed, almost
exclusively—instances of Arbitrations ad hoc, or d posteriori.
Comparatively little attention has been given to the " pre¬
vision " of the practice of Arbitration—to the Arbitration
Clause and the Treaty of Permanent Arbitration which is its
most definite and perfect manifestation. Yet it is in this
direction that the most real and conspicuous progress has
been made, and, in the present state of the international
world, the institution of permanent Arbitration frankly
accepted in its principle and respected in its result, appears to
me of a nature to render most eminent service.
Permanent Arbitration—
It is in this direction, I repeat, that, following a natural,
and, indeed, it may almost be said, a necessary, sequence, the
most conspicuous progress in the practice of Arbitration has
been made of recent years.
In Ancient Times ;
Not that by any means this form of Arbitration is of purely
modern origin. Like the practice of Arbitration generally,
it goes back to the earlier ages of civilised history. There
are traces of permanent Arbitration among the ancient Greeks.
Herodotus, for instance, reports that Artaphernes, governor of
Sardis, compelled the Ionians, after their subjugation by the
Persians, to form treaties among themselves to settle their
differences in the future by law, so that they should abstain
from violence and rapine towards each other. A treaty of
alliance, concluded for fifty years between Argos and Sparta,
contained a final clause submitting to the Arbitration of a
neutral town the differences which might arise between them.
The terms of this treaty are given by Thucydides.
In the truce between Pericles and Sparta, signed in b.c. 444,
it was decided that differences which might arise should be
settled by Arbitration; and a convention formed between
10
the towns of Hierapytna and Priansos in Crete stipulated
that, in the case of injuries, recourse should be had to Arbi¬
tration under the direction of the Kocr^oi, or Council of Chief
Magistrates, and that advocates should be employed, as pro¬
vided by the public edict.* It should be observed, however,
that these stipulations were made only between the peoples
of Greece, and not with foreigners. As regards these, Livy
says, war was an eternal duty.
In regard to Arbitration, Rome was inferior to Greece. The
Romans never had recourse to it. They had their "jusfeciale,"
but even the Pax Romana left no congenial soil in which the
institution of International Arbitration might take root.
In the Middle Ages ;
Among the many beneficial institutions inspired by Chris¬
tianity in the Middle Ages, such as the Peace of God, the
Truce of God, etc., many instances of Arbitration are to be
found. Popes, bishops, emperors, towns, parliaments, simple
individuals, were all appealed to. But they were cases
ad hoc. To find examples of permanent Arbitration it
is necessary to turn from the great States to the little
federal republics, the commercial towns of Italy and
Flanders, or to the Swiss cantons. There were 100 cases
of Arbitration in Italy alone during the 13th century. A
treaty of mutual alliance, concluded between Genoa and
Venice in 1238, contained a clause providing for submission
to the Arbitration of the Pope. It was in Switzerland,
according to M. Numa Droz, that the first treaties of per¬
manent Arbitration were formed, and he instances an
alliance between the cantons of Uri, Schwytz and Nidwald
in 1291, which contained a stipulation of Arbitration. A
treaty concluded at Fribourg, 29th November, 1516, between
Francis I. and the Swiss cantons, and known by the name
of " Perpetual Peace," contained an Arbitration clause. The
cities of the Hanseatic League (1210, the year of its formation,
to the 15th century), established the practice of Arbitration,
* Merignhac, p. 22.
11
and referred their differences to the city of Liibeck, which
selected four other towns to form a tribunal whose sanctions
were—minor or major excommunication, as the case might be.
The period from the Renaissance to the beginning of the last
century was emphatically the era of absolute and despotic
monarchy and of manifold wars, in which there are only a
few examples of " occasional " Arbitration, and none of
" permanent."
In Modern Times:—
It is not necessary that I should follow in detail the re¬
markable progress of the permanent Arbitration movement,
which has marked recent years. A bare outline of facts
will suffice :—
The British Parliament;
The modern period of its history dates from the year 1843,
when the Peace Convention of London was held, the first of the
series of remarkable International Peace Congresses, in which
for the first time permanent Arbitration was advocated and
pressed upon legislatures and Governments. An address was
prepared, unanimously adopted by it, and sent to "The Govern¬
ments of the Civilised World," urging " the recognition of the
principle of Arbitration, and the introduction of a clause into
treaties, binding themselves to refer all differences that may
arise to the adjudication of one or more friendly Powers."
The progress of the movement may be illustrated by its
history in the British House of Commons. During the period
of those Congresses, on the 12th June, 1849, Richard Cobden
introduced his historical motion in favour of permanent Arbi¬
tration, which was defeated, almost contemptuously, by a large
majority. Nearly a quarter of a century later, H. Richard
introduced another motion on the subject, which on the 9th
July, 1873, was carried by a bare majority. But on the 16th
June, 1893, such had been its progress in the interval, the
House of Commons declared itself in favour of the principle
with absolute unanimity, and without a formal division.
12
Other Legislatures.
A similar history attaches to the treatment of permanent
Arbitration in the French Parliament, where it was first
introduced by M. Bouvet, in 1848 and 1849, and reached its
climax on the 8th July, 1895, when it was adopted with only
one abstention.
The action taken by the various other legislatures, during this
period, is worthy of notice. For the Parliaments of Europe
and America, with the exception of the German Reichstag,
have all adopted resolutions in favour of the insertion of
an Arbitration clause in treaties or conventions, or of the
conclusion of permanent treaties. The details are most in¬
teresting, but need not detain us.
Clauses and Treaties.
The results of the new movement became, in course of time,
apparent, although treaties containing an Arbitration clause,
special or general, are comparatively rare before the year
1872, when the movement was again taken up with vigour.
From that time, thanks to the ever-increasing growth and
widening of the movement, to the efforts of the Peace Societies,
either acting alone or in their Congresses, which have been
periodical since 1889, to those of the Inter-parliamentary
Conference, dating from the same year, and to those of this
Association and kindred organisations; thanks also to the
personal labours of MM. Mancini, H. Richard, Thonissen,
Descamps, Van Eck, Senator Allison, and others, in the
Italian, British, Belgian, Dutch, American, and other Par¬
liaments, these treaties have become much more numerous,
the Arbitration clause has been more and more superseded by
the Treaty of permanent Arbitration, and even more sub¬
stantial progress still has to be recorded.
These results may be presented in three distinct classes:—
1. Treaties containing a special Arbitration clause,
that is, a clause embodying the obligation to refer to Arbitra¬
tion points specially determined by the treaty, and generally
relating to its interpretation and application.
13
These treaties have been very numerous.
2. Treaties containing a general Arbitration clause,
or, a clause expressing the obligation to submit to Arbitration
all future disputes in a general way, or all disputes, excepting
only those which the parties may have formally enumerated
in the treaty as excluded from Arbitration.
These treaties, also, amount to a considerable number, and
have been, for the most part, formed by the American States,
either between themselves or with European Powers.
Some of them contain both a special clause and a general
clause.
3. Treaties of Permanent Arbitration.
In these, instead of being incidental and accessory, as it
were, Arbitration forms the real object of the treaty, which,
besides embodying the obligation to submit to Arbitration,
determines the tribunal, fixes the rules of procedure, and
otherwise regulates its action.
It is among the American States, also, that the first treaties
of this description are found; and to the Republic of San
Salvador belongs the honour of having concluded the greatest
number. The most remarkable of these treaties was that
between Italy and the Argentine Republic, signed on July
23rd, 1898, and subsequently ratified.* Almost identical
treaties have also been concluded, between the Argentine
Republic and Uruguay, the Argentine and Brazil, and Brazil
and Chili. By these treaties the contracting parties bind
themselves to submit to Arbitration all the disputes,
whatever may be their nature or cause, which may arise
between them, when such cannot be adjusted in a friendly
way by the ordinary course of diplomacy.
In the same category must be placed :—The Treaty projected
between Switzerland and the United States in 1883; the
Treaty concluded and signed between Great Britain and the
United States on the 11th January, 1897, but which the
American Senate declined to ratify ; and the Treaty providing
a A letter from Professor Corsi, read at the Conference, stated that the
Treaty has not been ratified, the failure being on the side of the Argentine
Senate.
14
for a permanent Tribunal of Arbitration, which was adopted
and signed by the Pan-American Conference at Washington,
April 18th, 1890, but was only ratified by some of the signa¬
tory Powers, and therefore lapsed.
Fresh Developments.
This was the position of affairs when, on July 28th, 1899,
the Peace Conference at The Hague adopted its " Convention
for the Peaceful Regulation of International Conflicts," by
which permanent Arbitration received a most remarkable
development, and-the movement for the establishment of an
international juridical status, to which so many jurists have
consecrated their energies, an unprecedented impulse.
For the Peace Conference, which was an Assembly com¬
posed of the representatives of nine-tenths of the inhabitants
of the globe, not only established the institution of a priori
Arbitration on a more solid and stable foundation and in a
more effective form; it constituted, in place of a simple
and occasional international tribunal, a Court which is really
permanent, with a standing executive and staff of officials
and a panel of judges from which choice has to be made by
intending litigants. It did more. To quote the words of M.
de Staal, in his closing speech :—" The Conference, with the
authority attaching to an Assembly of civilised States, on its
part, sought to safeguard, in questions of capital interest,
the fundamental principles of International Law. It set
itself to the task of defining them, of developing them, and
of applying them in a more complete manner. It created on
several points a new law, corresponding with fresh necessities,
with the progress of international life, and with the best aspira¬
tions of humanity. In fact it has accomplished a work which
the future will no doubt call the first International Code of
Peace." And, as insisted by Mr. F. W. Holls, the official
historian of the Congress, this work must remain, whatever
the faults or defects of its particular provisions, the nucleus,
around which, by discussion and adjudication, a more perfect
body of law is sure to be framed." It also sought to consoli-
15
date, while safeguarding both, the two principles which are
the foundation of International LawT—the principle of the
sovereignty of individual States, and the principle of a just
International Comity. The inevitable result of the new
departure will be the substitution of law for force in Inter¬
national relations.
Since The Hague Conference the movement has been
carried a step further by the action of the Diplomatic
Congress of the Spanish-American States (most of which
were unrepresented at The Hague), which was held last year
at Madrid, and which, on the 2nd November (1900), adopted
a scheme of Arbitration providing for "permanent and
obligatory" Arbitration instead of the " permanent and
facultative" Arbitration fixed by The Hague Convention.
This further action may be described as complemental, but
it adds nothing that is essentially new.
Danger of Retrogression.
Signs are not wanting that the work of The Hague Confer¬
ence, especially as regards the Arbitration Tribunal, was more
thorough and advanced than people in general, and some friends
of international Peace in particular, were prepared for, and
that there is some danger, unless special care be taken, and a
due resort made to chart and compass, of returning on our
course, of lessening the value of what has been accomplished,
and so, of retarding the progress of the work we have at
heart. A remarkable instance of what I mean, occurring in
diplomatic circles, where, surely, it was to be least anticipated,
was furnished by a notice in the Times of the 3rd inst. The
paragraph was as follows:—
It will be remembered that Baron Lambermont, of the Belgian
Ministry for Foreign Affairs, recently acccepted the post of Arbi¬
trator in two disputes between Great Britain and France ; one in
relation to the confiscation by England of the French vessel
" Sergent Malamine," and the other as to a misunderstanding be¬
tween French and English soldiers during the pursuit of native
tribes in the Hinterland of Sierra Leone, when shots were exchanged.
Baron Lambermont, in conformity with the rules of procedure laid
16
down at The Hague Conference, will shortly have the necessary
documents placed in his possession, and a vote to this effect was
recently passed in the French Chamber. It appears, however, that
Baron d'Estournelles, who took a leading part at The Hague Con¬
ference, has addressed a protest to M. Delcasse on the ground of
irregularity of procedure, contending that Baron Lambermont
should not have been approached direct, but through the inter¬
mediary of the Permanent Court of Arbitration now definitely
constituted at The Hague. A similar protest has also been
addressed to the British Government. The incident, though trifling
in itself, is likely to have an interesting result—namely, the utilisa¬
tion of The Hague Tribunal for the first time by two of the
Signatory Powers.
I am aware that an explanation was given by M. Delcasse
in reply to an interpellation in the Chamber, but that hardly
mended matters.
The incident, however, cannot be correctly described as
" trifling in itself," for it reveals an astonishing oversight,
or a remarkable failure to appreciate the value and validity
of The Hague Convention, and its binding and legal force
upon all the Signatory Powers. Even the Times refers to
the "utilisation of The Hague Tribunal" as if it were an
"interesting result" which was hardly to be anticipated,
although it overlooks the fact that in the arrangement
referred to there is no utilisation of The Hague Tribunal at
all, which is the ground of the protest.
Legal Authority of The Hague Convention.
It is not necessary to urge the authoritative character of
The Hague Conference and the legal obligation of its acts,
which have been since ratified by the Governments repre¬
sented, and so invested with the validity attaching to all
international agreements.
And it surely ought not to be necessary to insist on the
mischief which may accrue, not only from diplomatic action
like that reported in the Times, but from the agitation to set
aside The Hague Convention by new agreements between
separate States. The new agreements cannot be more bind¬
ing ; and, as formed between two individual States, they must
17
have less dignity and moral force than deliberations and
definite contracts formally conducted and concluded between a
large number of States. It has been well said (by Mr. G. H.
Perris, in Concord), " So far from there being any doubt of
the legal force of The Hague Arbitration Convention, we do
not hesitate to say that that Convention carries with it the
highest legal obligation, and has the fullest legal quality, of
any International Agreement that has ever been made. This
is so, in the first place, because the Convention was the result
of a procedure more deliberate and imposing than that which
has marked the consummation of any previous International
Compact. Law in the highest instance is the decree of a
legislature, and never in human history has there been so
near an approach to the constitution of an International
Legislature as in the Meeting at The Hague of the chosen " (I
would rather say the authorised and accredited) " envoys of
four-and-twenty independent States, for the purpose of the
discussion and settlement of difficulties under which they all
labour." The matter could hardly be better or more justly
stated, and the statement is conclusive.
" Facultative " and " Obligatory."
A clear understanding of these terms is necessary.
" Facultative," as used in connection with The Hague Arbi¬
tration Convention, does not mean that it is " optional"
whether the signatory Powers shall fulfil their obligation to
carry out the Convention, and to use the Tribunal, or not.
The whole of the proceedings in which these Powrers have
been taking part would amount to a solemn farce if it meant
that. It means only that it is left " optional" whether they
will refer to the Court, or not, the particular differences as
they arise—each being determined on its own merits. The
obligation honourably to fulfil their solemn engagements is
not affected at all—that remains intact.
" Obligatory," as used in this connection, simply means that
the Powers may by Treaty pledge themselves beforehand to
submit all cases of difference, except any that may be
18
specifically designated, to the Court, as they arise, thus
creating for themselves a new moral and legal obligation—
and, hence, making Arbitration " obligatory " in each case.
The proposal of the 19th Clause is not that new Treaties
shall be formed to make The Hague Convention itself
obligatory—that would be absurd. It is obligatory already
to the extent of its terms. I repeat that both the moral and
legal obligation to carry out The Hague Convention, as far
as it extends, already exists—nothing could make it stronger;
and it is not in the slightest degree affected by the fact
whether the appeal to the Court is, in each case of difference,
" facultative " or " obligatory."
Again, the term " obligatory," as used in Article 19, does
not mean that the Powers signing such Treaties as are there
contemplated become amenable to some obligation, compulsion
or coercion, enforced by the other Powers ; that has been
never mentioned, or even dreamt of except by the advocates
of coercion, who cannot get away from the employment of
physical force. It refers solely to the obligation they create for
themselves by the new Treaty entered into. In the first place, if
" obligatory" meant anything of the hind, no Government would
accept the position involved, for that would be to sacrifice
freedom. And, in the second place, international jurists, and
advocates of Peace generally, could not support such a pro-
* posal. That would be to give us the old system under a
new guise, only labelled " Law " and " Peace." It would
soon result in the evils and conflicts of the old system ;
in a very little while armies would be necessary to compel the
submission of the recalcitrant, and the sacred cause of Peace
and International Order would be perverted into the occasion
of new wars of which it, in time, would become the fruitful
mother.
There is great danger lest the use of the term •' obligatory,"
by suggesting some means of compelling an appeal to Arbi¬
tration, which does not now exist, may result in the formation
of too low an estimate of the value and validity of The
Hague Convention. This can be avoided only by a clear
understanding of the terms used, and the ends sought.
19
Onlveralty
Library
Effect on the Development of Law.
There is a further consideration bearing on International
Law itself. A body of Law having a general recognition and
authority, cannot possibly result from the operations of any
number of such Treaties as are now proposed or the isolated
Courts established by them, the proceedings and decisions of
which would have no authority for the others. The develop¬
ment of an international Code would under those circumstances
be exceedingly doubtful, or at best slow—indeed, paradoxical
as it may seem, the more Treaties and Courts there are the
slower and more ineffective will be the process of developing
a Code and a common practice of Law. How different the
results from the continuous action and connected procedure
and decisions of a Permanent Court, like that now established
at The Hague, in which Law would broaden down from
judgment to judgment, and precedent to precedent, and its
influence grow deeper and stronger as the process continued.
Proposed Action.
Now, with regard to the proposal, which has met with
favour in some quarters, that the Powers be urged to form
new general Treaties of Arbitration between them, it must
not be forgotten that Great Britain and France, the United
States and Great Britain, France and the United States,
or whatever combinations of Powers may be invited to form
such Treaties, are the contracting Powers under The Hague
Convention, and they are already solemnly bound by the
Agreement they have made and ratified, and under obligation
to use, and to bring to the notice of others, the arbitral
instrument which they have helped to construct. In Article 21
of The Hague Convention the Powers agree that "the
Permanent Court shall have jurisdiction of all cases of
Arbitration, unless there shall be an Agreement between the
parties for the establishment of a special (not a general)
tribunal."
It will be evident, therefore, on a moment's reflection, that
20
the only fresh Treaties or Conventions which can now be in
order to the contracting Powers at The Hague, are: 1st, the
Convention (compromis) necessary for the reference to the
Permanent Tribunal of every difference between them, as
it arises; and, 2nd, the special Treaties provided for in
Article 19 of The Hague Convention, which runs: " Inde¬
pendently of general or special Treaties which may already
impose upon the signatory Powers the obligation to have
recourse to Arbitration, these Powers reserve to themselves
the liberty to conclude, either before the ratification of
the present Convention, or subsequent to that date, new-
Agreements, general or particular, with the object of extending
obligatory Arbitration to all cases which they judge capable
of being submitted to it."
The first kind of Convention is already in operation, and is
indispensable as the instrument by which all references are
made to the Court. Therefore the only special Treaty which
can consistently be recommended to these groups of Powers,
and which can really strengthen the position, would be the
general Treaty contemplated at The Hague, pledging any two
countries to what is technically known as " obligatory Arbi¬
tration." To invite them to form any other is to invite
them to repudiate their own action, and to disregard their
own plighted word, in order to repeat, in a similar but
less forcible form, what they have already done. Such
invitation would be, in my judgment, both inconsistent,
unfortunate, and mischievous.
It is surely not a course which can be favoured by the
friends of Peace, the goal of whose effort has been the forma¬
tion of just such a permanent system as that which has been
now introduced by The Hague Convention.
The Hague Court already a Fact.
What we have to start with, and what needs emphasis, is
that the Permanent Tribunal is an fait accompli. The Court
has been formed, and our business now is to promote its use
" for facilitating an immediate recourse to Arbitration," and
21
as the beginning of a permanent juridical system. To
assume an attitude of distrust towards it is to deal it the
hardest blow in our power. We must not be impatient with
it because it does not carry us to the goal with one stride—
because it does not establish at once universal and obligatory
Arbitration. We must be content to make progress step by
step; and to make our work really effective and permanent
we must keep clear of all forms of compulsion and coercion ;
that way, I repeat, the old war system lies.
The Hague Convention is a general Arbitration Treaty
entered into by twenty-four of the Principal Powers, which
have agreed that the Court it establishes shall have jurisdic¬
tion of all cases of Arbitration, unless in some special cases.
What can be gained by repeating it piecemeal as it were, as a
general Arbitration Treaty between groups of two Powers—
which hardly strikes one as a business course—or by super¬
seding it by new general Treaties, formed on the Anglo-
American, or some other model, between groups of two ? That
is a very restricted internationalism, and a decided retro¬
gression, and it would, if successful, be fatal to the scheme of
The Hague Convention.
How it would Work.
Let us see how it would work. The proposal is, that
general Treaties of Arbitration, on the model of the Anglo-
American of 1897, and the Italo-Argentine of 1898, which
were signed but not ratified, should be entered into by
every two Powers beginning say, with Great Britain and
the United States of America, Great Britain and France
and so on. I say nothing of the value of these documents.
They may, as Lord Alverstone has affirmed of the former
Treaty, " embody more of the principles on which a general
Treaty of Arbitration might proceed than any other State
paper which has ever been published." That is not the point
at issue. Either of them might " still be the starting-point,"
as he expressed it, if the starting had not already taken place.
But what would follow the proposal now made ?
22
This would follow. Each treaty as it was formed—that be¬
tween Great Britain and the United States, to wit—would with¬
draw from the cognisance of, and from all connection with, the
Permanent Court at the Hague, the whole of the difficulties
which may in future arise between the two Powers forming
the treaty. They would have their own Tribunals, or sets of
Tribunals, provided for by the Treaty. This would happen
in the case of each new treaty.
The consequence would be that the Permanent Court would
be more and more superseded, until in time, short or long
according to the success or otherwise of the movement, there
would be no constituency left, and the Court would become
non-existent. We should then have Permanent Arbitration, it
is true, but the present world-wide combination of States for the
purpose of Arbitration would be dissolved. Such a suicidal
course was never contemplated by Article 19 of the Hague
Convention, its provisions were too wisely framed for that.
The Treaties it contemplates are those between States, binding
them to submit all differences, except any specially designated,
as they arise, to the Permanent Tribunal, and no other, except
in special cases. This is specifically provided in Article 21.
The more the Hague Convention is studied the more one is
struck by its practical, diplomatic common-sense and wise
arrangements.
The new policy succeeds, let us suppose, absolutely and to
the fullest extent. What then '{ We shall have a number of
dual combinations—twenty-four general treaties, and possibly
more—as in the Anglo-American Treaty (the accepted model),
thrice twenty-four tribunals—instead of one treaty and one
tribunal, as at present. But what, then, becomes of the gain
to International Law, and what of the "juridical status"
between nations ? What real increase of the juridical system
would it involve ? When this object were reached, if ever it
were, which is most unlikely, we should be still as far as ever
from our goal.
It would be necessary, then, to begin a fresh agitation for
the combination of all the groups so formed, before a really
universal International system should be established. " The
23
federation of the world, the parliament of man," would be
relegated to the dim and misty distance of a future made
more remote by the failure of the present defeated attempt.
To-day they are accomplished facts in the Hague Agreement,
and its Permanent Court. The main thing is to make these
vital and effective, and to do everything in our power to
defeat the conspiracy of the Governments which are anxious
to preserve their power and prerogatives, if, as affirmed by
Baron d'Estoumelles de Constant, it really exists. By all
means urge the formation of treaties for " obligatory " Arbi¬
tration, as provided for in Article 19 of The Hague Convention,
or even the formation of an)' other treaties, the object of
which is to make the Permanent Tribunal effective or to
extend its scope and efficiency. But let us also remember
that the success of any project which renders The Hague
Convention abortive will leave us with all the work of
forming an international juridical system to do over again,
even though for the moment it may seem to advance the
cause of Arbitration, which the advocates of Peace have so
closely and constantly at heart.
The Hague Scheme not Final.
The Hague Scheme does not profess to be final; in one
sense it is only a beginning. Within its scope, and in
harmony with it, there is ample room for development, in¬
citements to which it wisely furnishes.
It is very doubtful, however, whether the present moment
is propitious, even for agitating the formation of new Con¬
ventions for " obligatory" Arbitration. I am inclined to
think that it might be better to culture than to force the
new plant; to let the Court which has been formed go on
with its work, commend its utility, demonstrate both its
necessity and efficiency, and so establish itself as did. the
National Courts of Justice which gradually superseded the
private warfare of feudal times. The rest would assuredly
follow. When the Powers have grown accustomed to the
present system of " facultative " Arbitration they may cease
24
to be apprehensive of " obligatory," if that should prove to
be really desirable. The main thing is to have a really
workable system in regular and, as far as possible, automatic
activity. And the sooner this can be had the better
Conclusion.
Two years ago, at Buffalo, the Conference of this Associa¬
tion decided to abstain from completing its own work of
formulating a set of Rules for a Permanent Tribunal, lest by
doing so it should seem to reflect upon, or in some way
intrude into the domain of, what had been accomplished at
The Hague. There was on the face of it no valid reason for
©
this abstention, because the two tasks were quite distinct and
independent of each other, the Association had the work
in hand long before The Hague Conference had been proposed,
and it had completed its work before the Final Act of the
Conference had been adopted, so that there could be no
suspicion of any conflict between them.
It is otherwise to-day. The course which has been proposed
involves both a reflection upon, and a repudiation of the work
done at The Hague. To lessen the authority of The Hague
Convention, is to weaken the whole system of permanent
Arbitration and to have the work to do over again under less
favourable conditions, because doubt will have been thrown
upon the sincerity and worth of International discussions and
agreements. I therefore respectfully urge upon this Association
that what now remains to be done for the realisation of its
aims in regard to public International Law and the establish¬
ment of an International Jurisdiction, is to follow up what has
been already accomplished; not to create afresh, still less to
return upon our own footsteps, but to utilise the work of The
Hague Conference, which is, to say the least, so far, the
highest water mark of International progress; to make it
and its labours stepping-stones towards the new International
Order; and to do this, and all else that may spring out of it,
in the strong conviction that, as Mirabeau declared—
Law will one day be sovereign of the world.
341.6 D21
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Ill illinium illinium Minimi
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