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NEW METHODS OF ADJUSTING 
 
 INTERNATIONAL DISPUTES 
 
 AND THE FUTURE 
 
NEW METHODS 
 
 OF ADJUSTING 
 
 INTERNATIONAL DISPUTES 
 
 AND THE FUTURE 
 
 BV 
 
 SIR THOMAS BARCLAY 
 
 VICK-PRBSIDENT OF THB INSTITUTE OF INTERNATIONAL LAW 
 
 AUTHOR OF 
 
 "problems of INTERNATIONAL PRACTICE AND DIPLOMACY" 
 
 "law and usage OF war" ETC. 
 
 LONDON 
 
 CONSTABLE & COMPANY LTD 
 lo ORANGE STREET LEICESTER SQUARE WC 
 
 1917 
 
DEDICATED 
 
 TO 
 MY FRIEND AND FELLOW-CITIZEN OF DUNFERMLINE 
 
 ANDREW CARNEGIE 
 
 WHOSE WORK IN THE CAUSE OF LAW, AMITY 
 AND PEACE AMONG NATIONS 
 
 HAS EARNED 
 THE GRATITUDE OF MANKIND 
 
 «3 7i\C^7 "^ 
 
PREFACE 
 
 The present volume is intended to meet a want 
 which has long been felt. There is no English 
 book dealing with Arbitration and the other Pacific 
 Methods of adjusting International disputes and 
 differences as a part of the political system of 
 nations, or endeavouring to determine the scope 
 and limitations of these methods. In this volume 
 an attempt is made to show in what respect they 
 form part of the existing diplomatic machinery 
 and the direction in which they are susceptible 
 of development. 
 
 Arbitration is frequently appealed to, on the 
 one hand, and condemned, on the other, as if the 
 last words for and against it were that it is, 
 should be or cannot be a substitute for war. It 
 will be seen in this volume that, without ex- 
 aggerated expectations, arbitration and the other 
 methods which have been co-ordinated by the 
 Hague Conferences serve many purposes which 
 narrow the area of international dissension. 
 
 As regards the failure of peace methods in 
 connection with the present war, the first sug- 
 
viii PREFACE 
 
 gestion of mediation, by a strange contrast to hei 
 ultimate attitude, came from Germany. As Sir 
 Edward Grey records in a dispatch to Berlin,^ 
 the German ambassador had told him that it 
 would be a very desirable thing if Russia could 
 act as a mediator with regard to Serbia. Four days 
 later. Sir Edward Grey suggested at Berlin that 
 simultaneous and joint action by Germany, Italy, 
 France and Great Britain at Vienna and Peters- 
 burg might have a " mediating or moderating 
 influence." ^ Then, on July 28, Austria-Hungary 
 declared war against Serbia. Even, in spite of 
 this precipitation, efforts to arrive at an effective 
 mediation were continued by Sir Edward Grey on 
 behalf of Great Britain, and by Herr von Bethmann- 
 HoUweg, as he alleged, through the German 
 ambassador in London, on behalf of Germany. 
 It is certain that Great Britain, France and Italy 
 were prepared to offer mediation in conjunction 
 with Germany down to as late as July 29. 
 
 Germany objected, we then learn from Italy, 
 to the mediation of the four Powers,^ and on the 
 same date (July 29) the German ambassador 
 assured Sir Edward Grey that the German Chan- 
 cellor was working in the interest of mediation 
 at Vienna and Petersburg.^ 
 
 1 July 20, 1914. 
 
 ^ Sir Edward Grey to Berlin, July 24, 19 14. 
 ^ Sir Edward Grey to Rome, July 29, 19 14. 
 " Sir Edward Grey to Berlin, July 29, 1914. 
 
PREFACE ix 
 
 Then Sir Edward Grey authorised Sir Edward 
 Goschen to make the following statement at 
 Berlin : 
 
 And I will say this : If the peace of Europe can be pre- 
 served and the present crisis safely passed, my own endeavour 
 will be to promote some arrangement to which Germany 
 could be a party, by which she could be assured that no 
 aggressive or hostile policy would be pursued against her or 
 her allies by France, Russia and ourselves, jointly or separ- 
 ately. I have desired this and worked for it, as far as I 
 could, through the last Balkan crisis, and Germany having 
 a corresponding object, our relations sensibly improved. 
 The idea has hitherto been too Utopian to form the subject 
 of definite proposals, but if this present crisis, so much more 
 acute than any that Europe has gone through for generations, 
 be safely passed, I am hopeful that the relief and reaction 
 which will follow may make possible some more definite 
 rapprochement between the Powers than has been possible 
 hitherto. 
 
 This was practically a further promise of 
 mediation on the part of Great Britain for the 
 purpose of assuring the permanent peace of 
 Europe. 
 
 That these efforts at mediation broke down 
 seems to have been due to the precipitation of 
 Austria-Hungary in declaring war against Serbia 
 and her declining to suspend the outbreak of 
 hostilities. The rest follows as a consequence 
 of this precipitation : Russia's precipitation to 
 mobilise against Austria-Hungary for the pro- 
 tection of Serbia, Germany's precipitate espousal 
 of the quarrel of Austria-Hungary, etc., till the 
 
X PREFACE 
 
 bulk of the world found itself at war, and only 
 the United States and Spain, among greater 
 Powers, remained free to offer any mediation 
 at all. 
 
 The only suggestion of reference of any point 
 to the Hague Court of Arbitration was that in 
 the Serbian reply to the Austro-Hungarian 
 ultimatum, in which the Serbian Government 
 stated that if the Imperial and Royal Govern- 
 ment were not satisfied, the Serbian Govern- 
 ment, considering that it was not in the common 
 interest to precipitate a solution, were ready, 
 as always, to accept a pacific understanding, 
 either by reference to the International Court at 
 the Hague, or to the Great Powers which took 
 part in the drawing up of the declaration made 
 by the Serbian Government on March i8, 1909. 
 
 The history of the Hague Court of Arbitration 
 and the Hague Conventions, like the history of 
 all efforts to eliminate causes of war and diminish 
 its horrors, is a record of discouraging abuse on 
 the part of a class of writers and politicians who 
 condemn all humanitarian progress as mere illusion 
 of dreamers. Yet, there has never been such an 
 argument in their favour as the present insensate 
 war, and if there is a higher authority than the 
 will of man in the shaping of man's destiny, the 
 reaction after the war will assuredly not be in 
 favour of these misguided writers and politicians 
 
PREFACE xi 
 
 who, by exciting nation against nation, sowed 
 the seeds of war, or of the statesmen who, by 
 reviving the monstrous folly of dividing Europe 
 into two huge hostile camps, made the localisa- 
 tion of war of any kind in Europe impossible. 
 History does not always distinguish between right 
 and wrong, and, in general, assumes an indulgent 
 if not admiring attitude towards successful inter- 
 national brigandage. Present generations which 
 have suffered through the incompetency and 
 failure of their governing classes are not likely, 
 however, to allow themselves to be deluded 
 again as to the realities of war compared with 
 those of peace. 
 
 T. B. 
 
CONTENTS 
 
 CHAP. ''AGE 
 
 ./'I. International Disputes and Public Opinion . i 
 II. International Differences and their Varieties io 
 
 III. Diplomacy, Good Offices and Mediation . . i6 
 
 IV. Peace Ideals in Theory and Practice 
 <yv. Nature, Progress and Scope of Arbitration 
 
 ,^ VI. "National Honour" and "Vital Interests" 
 
 VII. The Existing and Proposed Hague Courts 
 VIII. International Commissions of Inquiry 
 IX. Compulsory Treaties of Reference 
 X. The Dread Alternative and the Future . 
 
 32 
 40 
 
 56 
 
 69 
 
 92 
 
 104 
 
 121 
 
 APPENDICES 
 
 I. Hague Convention for the Pacific Settlement 
 
 of International Disputes (1907) . . 135 
 
 II. Proposed Convention relating to the Establish- 
 ment OF A Court of Arbitral Justice (1907) . 1 59 
 
 III, Convention relative to the Establishment of an 
 
 International Prize Court (1907) . . 167 
 
xiv CONTENTS 
 
 CHAP. PAGE 
 
 IV. Anglo-American Treaty of January 12, 1897 . 179 
 
 V. Anglo-French (October 14, 1903) and Anglo- 
 American (December 12, 1904) Treaties of 
 Arbitration and Note thereon . 
 
 VI. Anglo-American Treaty of April 4, 1908 . 
 
 VII. Anglo-American Treaty of August 3, 1911. 
 
 VIII. Franco-Danish Treaty of August 9, 1911 . 
 
 INDEX , 
 
 185 
 191 
 
 193 
 198 
 
 203 
 
NEW METHODS OF ADJUSTING 
 
 INTERNATIONAL DISPUTES 
 
 AND THE FUTURE 
 
 CHAPTER I 
 
 INTERNATIONAL DISPUTES AND PUBLIC OPINION 
 
 The present clash of nations, the greatest the 
 world has ever witnessed, is a vivid illustration 
 of the influence of public opinion. Wars are 
 seldom unpopular. The emotions of expectation 
 and gambling, danger, risk, of courage and fear, 
 of hatred and lust of blood, are all excited and 
 brought into action by a declaration of war. 
 And in the joint work of offence and defence a 
 whole nation can enjoy the thrilling sensation 
 of a vast joint effort. As the war proceeds, 
 these emotions lose their novelty and public 
 opinion its acuity. But just as before an out- 
 break of war there are latent conditions of public 
 opinion on which statesmen rely, so peace comes 
 when the spirit of the peoples engaged in the 
 war is ready for it, when the atmosphere becomes 
 
2 ADJUSTING INTERNATIONAL DISPUTES 
 
 charged with peace currents in the place of the 
 currents which had been favourable to war. 
 And, again, just as the causes of war are dis- 
 tinguishable from its occasion, so the causes of 
 the ending of a war are distinguishable from 
 the occasion of its ending. And these causes 
 materialise in both cases in currents of public 
 opinion. 
 
 The present is not a suitable moment to dissect 
 public opinion in connection with a war which, 
 owing to the initiation of exceptional ruthlessness 
 against innocent and guilty without distinction, 
 has been and is being waged with unprecedented 
 bitterness. These fateful years, let us hope, will 
 be regarded as a blank in the continuity of 
 civilisation. When the war is over, mankind will 
 no doubt gladly revert to a spirit of law and 
 order, and European State intercourse will 
 probably be resumed under conditions in which 
 the precedents of normal times will have their 
 full force and effect. 
 
 Our eyes naturally scan the future with mis- 
 givings. The prospect, however, is not at all 
 hopeless or even discouraging. In fact, the present 
 war has so conclusively shown the superiority of 
 methods of peace that we do well, before settling 
 down again to a period of international calm, to 
 take stock of the methods at our disposal for the 
 adjustment of international disputes without re- 
 
INTERNATIONAL DISPUTES 3 
 
 course to arms. Public opinion moves slowly, 
 and it is difficult to divert it from any direction 
 in which it is swinging until it has reached the 
 height of its intensity ; it then seems to swing 
 as slowly back. In this play of action and re- 
 action, the reaction will certainly be a revolt 
 against war and entail, so to speak, a stock-taking 
 of what can be done to avoid it in the future. 
 
 * * * 
 
 Anyone who has closely watched the course of 
 disturbances of international composure during the 
 past fifty years, cannot but be struck by the im- 
 portant part played in final decisions of Govern- 
 ments generally by the public opinion of the 
 nations concerned. And this applies not only to 
 nations managed by their elected representatives, 
 such as Great Britain, France and the United 
 States, which have had a long experience of self- 
 government, but to nations in which government 
 is detached from representation and public opinion 
 has no direct means of exercising pressure in the 
 management of foreign affairs. 
 
 This importance of public opinion accounts for 
 Prince Bismarck's precipitate publication of the 
 famous Ems dispatch, for Lord Granville's not 
 publishing the Anglo-French correspondence of 
 1894 when England bungled and had to beat a 
 retreat too undignified to reveal to the public, 
 for Lord Salisbury's precipitate publication of the 
 
4 ADJUSTING INTERNATIONAL DISPUTES 
 
 Anglo-French correspondence in the Fashoda 
 affair, for Herr von Kiderlen-Waechter's with- 
 holding the terms of his agreement with France 
 till national feeling had cooled down in Germany, 
 and for a host of other incidents in which Govern- 
 ments either wished to excite or to allay public 
 
 feeling. 
 
 * * * 
 
 It is not usual to pay much attention to public 
 opinion in Eastern Europe or Asia Minor, and yet 
 more or less recently an attempt to bring about 
 a solution of the Turco-Italian difficulty failed, 
 not because the Turkish Government was un- 
 desirous of peace, but because fanatical Moslem 
 feeling in certain parts of Asia Minor had to be 
 humoured. Still more recently a Greek minister, 
 whose popularity and power had been unquestioned 
 for years, had to confess that a certain settlement 
 which seemed reasonable would have to stand 
 over, because a nation flushed with victory can- 
 not be trusted to listen to reason. 
 
 * * * 
 
 Beyond the national boundaries the expression 
 of public opinion has in some respects the con- 
 trary effect. Thus the universal reprobation of 
 the Dreyfus persecution certainly contributed a 
 great deal to the intensity of the anti-Dreyfus 
 spirit in France, and the universal reprobation 
 of the Boer War, I cannot help believing, to 
 
INTERNATIONAL DISPUTES 5 
 
 the exaggerated " jingoism " which prevailed in 
 England. 
 
 Public opinion outside Russia, though it may 
 have protected Tolstoi from persecution, did any- 
 thing but attenuate that of the Jews, and its 
 activity outside Turkey seemed rather to provoke 
 than mollify Hamidian fury against the Armenians. 
 
 * * ^' 
 
 Public opinion in different countries, again, is 
 neither equally enlightened nor equally intense. 
 Just as in different parts of the same country 
 towns have a more effective influence than 
 thinly peopled areas on the action of Govern- 
 ments, so ceteris paribus have thickly than thinly 
 peopled countries. 
 
 * * * 
 
 Amid possible latent or active unreason, 
 public opinion, with the growth of elective in- 
 stitutions, has to be flattered and only too often 
 to be consoled with promises, according to the 
 degree of its intelligence. Statesmen, to avoid 
 irritating issues, and to preserve at the same time 
 national peace and national dignity, are glad 
 to possess, among their diplomatic machinery, 
 methods by which, when trouble arises, they 
 may either gain time or shift the settlement to 
 another jurisdiction, which will shoulder the re- 
 sponsibility of a solution not in accordance with 
 
6 ADJUSTING INTERNATIONAL DISPUTES 
 
 the demands or expectations of an easily excited 
 
 public. 
 
 * * * 
 
 It has been more especially statesmen of the 
 two great Anglo-Saxon communities which have 
 brought pacific methods, in practice, to their 
 highest point of achievement. 
 
 Between the United States of America and 
 England several issues of the first magnitude 
 have been determined by specific reference to 
 joint commissions, that is, commissions composed 
 exclusively of nationals of the two States. It 
 was by such a commission that many of the 
 most delicate questions connected with the North 
 Atlantic fisheries were adjusted. 
 
 But they have not confined themselves to the 
 more or less diplomatic jurisdiction of joint com- 
 missions. In the Alaska boundary case the 
 joint commissioners sat as independent judges, 
 and to the honour, be it said, of the British sense 
 of justice, the question was solved, without any 
 reference to diplomacy, by one of the British 
 commissioners siding against the contention of 
 his own country. 
 
 In another momentous issue, the gravest 
 perhaps which has ever arisen between England 
 and the United States, the Parties went far beyond 
 the utmost limit attained by any other States in 
 their avoidance of war by pacific methods. It 
 
INTERNATIONAL DISPUTES 7 
 
 was at a time when the United States army, 
 flushed with victory, might have endangered 
 British dominions in North America. This was 
 the Alabama case, which was referred to a 
 Court of Arbitration in which the deciding voice 
 was given to foreign arbitrators.^ 
 
 These two Anglo-Saxon States have been 
 pioneers for the education of public opinion in the 
 advantages of pacific as compared with violent 
 solutions of international differences. 
 
 1^ * * 
 
 We must remember also that it is two South 
 American States of kindred origin which are 
 leading the way towards the adoption of pacific 
 methods in the adjustment of difficulties among 
 the Republics of the South American Continent. 
 In another chapter will be found further reference 
 to their efforts to eliminate war from the available 
 methods of recourse whenever they may have the 
 misfortune to quarrel.^ Nor should we forget that 
 it was a statesman of the Argentine Republic 
 who induced the Second Hague Conference to 
 repudiate armed coercion for the recovery of 
 debts due by States too weak to oppose resistance 
 to a most infamous practice in which England 
 had been a leading sinner. 
 
 * * * 
 
 As regards the attitude of public opinion to- 
 
 ' See p. 40. * See p. 109. 
 
8 ADJUSTING INTERNATIONAL DISPUTES 
 
 wards the results of arbitration awards, little or no 
 disposition has been shown to dispute them. 
 
 Both the Alabama and the Alaskan awards 
 excited British public opinion, which was not pre- 
 pared for such reverses. Though the former 
 reached the high-water mark of national dis- 
 favour, nobody even suggested repudiation. It 
 was felt that national " honour " required that an 
 international award, just because there is no in- 
 ternational executive power to enforce it, should 
 be scrupulously respected. 
 
 *l* *** T» 
 
 Turning to another aspect of international 
 matters, it is deeply to be regretted that in several 
 instances in our own time international treaties 
 have not been regarded by public opinion with 
 the same respect as international awards. The 
 attitude of England towards Egypt, of Italy 
 towards Turkey, of Russia towards Persia, of 
 France towards Morocco, and especially of Ger- 
 many towards Belgium, are all instances of 
 eventual bad faith, however justifiable the 
 original intervention may have been in the one 
 case or unjustifiable in the other. They are 
 additional evidence of the difficulty of preserving 
 the peace of the world even by the most solemn of 
 international undertakings. 
 
 •I* •!* *p 
 
 It is seen that in dealing with the subject of 
 
INTERNATIONAL DISPUTES 
 
 pacific methods of settling international diffi- 
 culties we must avoid exaggerated confidence in 
 methods of any kind. However ingenious the 
 schemes propounded and however solemnly 
 nations may accept them, there is still a wide 
 margin of danger that they may prove ineffective 
 to prevent popular outbursts of violence and war, 
 so long as the public opinion of different countries 
 has not reached a parallel sense of responsibility in 
 which sudden gusts of intemperance can blow past 
 without deranging the national common sense. 
 
 ^z T* 1* 
 
 War is always latent, and nothing, as I have 
 said, is more popular than war while a favourable 
 issue seems probable. Unfortunately, there are 
 few international difficulties which cannot be 
 fanned into dangerous questions, Vv^hether a vital 
 interest is really involved or not. How to deal 
 with such matters, when diplomacy has failed, 
 is a problem which has puzzled peacemakers for 
 the last four centuries. It has exercised and still 
 exercises the imagination of the greatest European 
 statesmen and thinkers. In the following chapters 
 I shall deal with the latest aspects of the problem 
 and its solution as they present themselves in 
 contemporary politics. 
 
CHAPTER II 
 
 INTERNATIONAL DIFFERENCES AND THEIR 
 
 VARIETIES 
 
 Before discussing the methods by which inter- 
 national differences are susceptible of being 
 settled without recourse to war, it is desirable to 
 have a clear idea of the different matters which 
 give rise to differences. 
 
 International differences, fortunately, are not 
 all equally difficult of solution. 
 
 They are of many kinds. Some are vague 
 and political. Others are of a more precise and 
 determinable character. 
 
 * * * 
 
 To begin with the latter, there are disputes 
 between individual citizens belonging to different 
 States which do not affect their Governments at all, 
 such as questions of contract and tort, marriage, 
 divorce, agency, insurance, etc., matters belong- 
 ing to the private civil law of nations and over 
 which the ordinary Law Courts, by the courtesy 
 of civilised nations, have exclusive jurisdiction. 
 
 Then there are mixed cases between citizens 
 
INTERNATIONAL DIFFERENCES ii 
 
 of one country and the Government of another, 
 such as where a citizen of one State or his pro- 
 perty has suffered through misfeasance or an 
 abnormal absence of the ordinary safeguards of 
 order on the part of a foreign authority, and which 
 it would be contrary to common sense to leave 
 to the decision of the offending State. There 
 are also mixed cases where, owing to the doctrine 
 of exterritoriality, the offender must be followed 
 to the offending State, again party and judge 
 in its own cause. This happens, for instance, 
 in cases of collision between a warship of 
 one country and a private ship of another, or 
 in matters in which a private person has suffered 
 some wrong at the hands of a diplomatic agent 
 covered by diplomatic immunity. Such matters 
 are by their nature international and belong to 
 the scope of arbitration, unless the foreign plaintiff 
 accepts the jurisdiction of the offending party. 
 These cases of a mixed public and private char- 
 acter present considerable difficulty, to which I 
 shall revert in a later chapter. 
 
 There are other cases which, though they 
 affect individual citizens, are purely international, 
 such as where fugitives from the criminal law 
 are concerned. These matters are regulated by 
 treaties of extradition and are dealt with between 
 the State Departments concerned. 
 
 Lastly, there are matters which do not concern 
 
12 ADJUSTING INTERNATIONAL DISPUTES 
 
 individual citizens, but are of a character affecting 
 citizens generally; Of these^ there is a vast variety 
 embracing, at the present day, almost as many 
 subjects as there are national activities. I will 
 cite a dozen of them, already regulated by inter- 
 national conventions, to show how immense is 
 their variety : 
 
 1. Sanitary matters affecting persons, cattle, luggage ; 
 
 2. Repatriation of indigent aliens ; 
 
 3. Postal, telegraphic and telephone services ; 
 
 4. Submarine cables ; 
 
 5. Port regulations ; 
 
 6. Fishery matters ; 
 
 7. Trade marks, patents, etc. ; 
 
 8. Copyright ; 
 
 9. Commercial companies ; 
 
 10. Treatment of commercial travellers ; 
 
 11. Customs regulations ; 
 
 12. Transit arrangements for goods trafific ; etc. 
 
 The incidents to which such matters give rise 
 are seldom difficult to settle through the diplo- 
 matic channel. They belong to the daily life of 
 chancelleries and corresponding Foreign Office 
 Departments, and, when differences of view or 
 opinion occur between individuals and the Govern- 
 ments concerned, they seldom reach the atten- 
 tion of any body of public opinion beyond that 
 represented by Chambers of Commerce and Trade 
 Boards, which are as cold-blooded as Government 
 Departments themselves. 
 
INTERNATIONAL DIFFERENCES 13 
 
 We come now to the more serious matters of 
 a less precise character, where Governments move 
 on thin ice and the greatest care and skill are 
 requisite to avoid accidents. In a composite 
 State like the British Empire, with colonies 
 and dependencies in all parts of the world 
 which are in immediate conterminous contact 
 with other States, it is not easy to isolate any 
 issue or deal with au}^ difficulty without con- 
 sidering in conjunction with it a number of acces- 
 sory questions which may not be of immediate 
 relevancy. 
 
 The official tradition of England is to follow 
 British interests for their protection, and not to 
 act as a pioneer for trades which can much better 
 do their pioneer work themselves. 
 
 British enterprise has penetrated into almost 
 every place where British goods can be sold. The 
 British flag has followed that enterprise. To 
 prevent other States from closing markets against 
 it, England has been led into annexing more terri- 
 tory than the growth of her population requires, 
 but she has followed the wise policy of not differ- 
 entiating against other countries in favour of her 
 own, and the citizens of the majority of other 
 States, therefore, prefer that she should be the 
 State in possession rather than any other State. 
 
 To preserve her dominion over colonies and 
 dependencies, to keep open all the existing routes 
 
14 ADJUSTING INTERNATIONAL DISPUTES 
 
 and channels of communication among the differ- 
 ent parts of her vast Empire, to withstand aggres- 
 sive rivals, to maintain order among unruly- 
 neighbours and at the same time friendly re- 
 lations with those whose projects the prosecution 
 of these purposes may disturb, are among the 
 problems of England's foreign policy, and they 
 are of the most delicate character. 
 
 In such matters as these the incidents which 
 occur are generally known to the public as soon 
 as to the Government Department concerned. 
 This was the case with the Fashoda incident, 
 which brought this country within an inch of 
 war with France. It was the case with the 
 French action in Morocco, which, a few years 
 ago, very nearly precipitated war between France 
 and Germany and later between England and 
 Germany. These matters which affect whole areas 
 of the habitable world — a limited quantity — 
 strike the public imagination, and Governments 
 are always liable to be carried off their feet in 
 a wave of popular feeling if it gets out of hand. 
 
 * * * 
 
 There is still one other kind of international 
 difficulty. It is where an unskilful diplomacy has 
 allowed some matter, in itself of no great im- 
 portance, to attain national significance. An 
 insult to the flag or a want of courtesy to a 
 diplomatic or even consular agent may let loose 
 
INTERNATIONAL DIFFERENCES 15 
 
 an avalanche of recrimination, while immediate 
 and adroit manoeuvring may turn it even to good 
 account. In such matters red-tapism is fatal, for 
 they are among the matters supposed to involve 
 " national honour," and in such matters prompti- 
 tude is essential. 
 
CHAPTER III 
 
 DIPLOMACY, GOOD OFFICES AND MEDIATION 
 
 In the preceding chapter an attempt has been 
 made to give some idea of the matters which arise 
 between States and their relative gravity. With 
 the bulk of them, diplomacy is generally able, 
 without difficulty, to deal more or less satis- 
 factorily, though perhaps often less satisfactorily 
 than would please those who are affected by the 
 arrangements concluded. 
 
 * * * 
 
 For the purpose of dealing with these 
 matters which constitute the international 
 activity of States, Governments are provided 
 with ministries of foreign affairs and a diplomatic 
 service, both of which are carefully trained in 
 methods of negotiation, and selected as much as 
 possible from a class of society to which the 
 practice of courtesy comes easily. The manner 
 of discussing delicate or irritating issues obviously 
 must play a very important part, especially where, 
 as frequently happens, there is a mistake to 
 retrieve without sacrifice of national dignity. 
 
 i6 
 
DIPLOMACY 
 
 17 
 
 The Foreign Minister or Secretary of State is 
 assisted in his work by a large staff of officials. In 
 England, the staff is divided up among eleven 
 Departments, viz. : 
 
 Departments. 
 
 1. African Protectorates 
 
 2. African . 
 
 3. American 
 
 4. Commercial and San- 
 
 itary 
 
 5. Consular, 
 
 6. Eastern (Europe) 
 
 7. Far Eastern 
 
 8. Western (Europe) 
 
 Distribution of Business. 
 
 East Africa, Uganda, British 
 Central Africa, Somaliland. 
 
 South-east, West and South-west 
 Africa. 
 
 North, Central and South 
 America, and Pacific Islands. 
 
 Correspondence with His Majesty's 
 Ministers and Consuls abroad, 
 with the Representatives of 
 Foreign Powers in England, the 
 Board of Trade and other De- 
 partments of His Majesty's 
 Government, as well as with 
 Commercial Associations, etc., 
 on matters strictly commercial. 
 Sanitary Questions, Copyright, 
 Protection of Industrial Pro- 
 perty. 
 
 Correspondence with His Majesty's 
 Ministers and Consuls abroad, 
 and management of all matters 
 relating to the Consular Service. 
 
 Greece, Montenegro, Roumania, 
 Servia, Russia, Turkey, Persia 
 and Egypt, Abyssinia and 
 Somaliland, Central Asia. 
 
 China, Japan, Siam and Corea. 
 
 Austria, Bavaria, France, Ger- 
 many, Italy, Portugal, Spain, 
 Switzerland, Belgium, Den- 
 mark, Netherlands, Sweden, Nor- 
 
i8 ADJUSTING INTERNATIONAL DISPUTES 
 
 way, Morocco, Newfoundland 
 Fisheries, Borneo and Eastern 
 Archipelago. 
 Q, Financial . . Estimates, Examination and Con- 
 trol of Accounts, Diplomatic 
 Appointments, Messengers, Cab- 
 inet Keys, Issue of Salaries, 
 Diplomatic Pensions, Estabhsh- 
 ment Questions. 
 
 10. Librarian and Keeper Custody, Arrangement and Reg- 
 
 of the Papers istry of the MS. Correspondence, 
 
 Confidential Papers, Treaties 
 and Printed Library, Prepara- 
 tion of Memoranda on Historical 
 Events, International Cases, 
 Treaty Questions, etc.. Corre- 
 spondence on matters relating to 
 the Public Record Office, etc. 
 
 11. Treaties, etc. . . Treaties, Orders in Council, Full 
 
 Powers, Commissions, Creden- 
 tials, Exequatur, Royal Letters, 
 British and Foreign Orders, 
 Medals and Rewards, Diplo- 
 matic Privileges, Questions of 
 Ceremonial, Precedence, Nation- 
 ality and Naturalisation, Pro- 
 tection, Extradition, Enforce- 
 ment of Foreign Enlistment 
 Act, Consular Conventions, Pass- 
 ports. 
 
 These Departments are managed by some 
 35 to 40 specially trained public servants under 
 I chief permanent under-secretary and 3 or more 
 permanent assistant under-secretaries. 
 
 The diplomatic service, under the direction of 
 the Foreign Secretary, is divided up among some 
 
DIPLOMACY 19 
 
 130 men, of whom 8 are ambassadors, 16 envoys 
 extraordinary and ministers plenipotentiary, 2 
 ministers plenipotentiary and 10 ministers 
 resident. 
 
 Alongside the diplomatic service there is a 
 widespread consular service which, apart from 
 7 agents and consuls-general, who have a more 
 or less diplomatic character, consists of 55 consuls- 
 general, 124 salaried consuls, 49 unsalaried consuls, 
 104 salaried vice-consuls, 451 unsalaried vice- 
 consuls, 52 consular agents and 126 pro-consuls, 
 all of whom have duties to perform in which tact, 
 knowledge and natural vigilance are required. 
 
 The official staff engaged in the conduct of 
 British foreign relations, it is seen, is considerable, 
 and their utility is in proportion to their ability 
 and zeal. We have, however, to deal here with 
 diplomacy alone, and diplomacy includes only 
 the Foreign Office Departments and the diplo- 
 matic service. 
 
 •F I* "f* 
 
 Business between States is conducted by 
 means of intercourse between the diplomatic 
 representatives and the Foreign Office of the 
 country to which they are accredited. Though 
 it is only exceptionally that Foreign Secretaries 
 meet each other in the flesh for business pur- 
 poses, such meetings have become of late years 
 frequent. Notable cases of this were when 
 
20 ADJUSTING INTERNATIONAL DISPUTES 
 
 M. Delcasse in 1903 accompanied M. Loubet to 
 London, and there drew up in direct conjunction 
 with LordLansdowne the heads of an Anglo-French 
 settlement, and when, more recently, M. Sasonow 
 came to England to discuss certain matters of 
 possible joint action with Sir Edward Grey. On 
 the Continent, such direct contact has become 
 of much more frequent occurrence than on the 
 part of British Foreign Secretaries. Visits be- 
 tween the Foreign Ministers of France and Russia, 
 and between those of Germany, Austria and Italy, 
 in fact, became so frequent during the last few 
 years prior to the war that they had almost 
 ceased to excite public curiosity. 
 
 4c 4: ifc 
 
 In diplomatic intercourse the greatest precau- 
 tions are necessary to avoid misunderstanding, 
 especially in view of the fact that allied Powers 
 are supposed to keep one another scrupulously 
 posted up in all matters which may involve 
 either of them in international complications. 
 
 Sir Edward Malet, in an essay published in 
 1899,^ gave advice to diplomatists which shows 
 how, at any rate, some sources of misunderstand- 
 ing can be avoided. The passage is as follows : 
 
 Cultivate the art of reproducing in writing the true tenor 
 of conversation — the exact words if possible. In reproducing 
 
 * Unwritten Laws and Ideals. Edited by E. H. Pitcairn. London : 
 Smith, Elder, & Co. 1899. 
 
DIPLOMACY 21 
 
 the words of your interlocutor, try to convey precisely not 
 only what he said, but also what he wanted to say. Herein 
 lies a difference. It occasionally happens that the Minister 
 of Foreign Affairs, to whom we will suppose you to be speaking, 
 lets fall an unguarded expression. Never take advantage of 
 it. It is useless to repeat words of his which he did not 
 intend to utter. By reporting such words you lose his 
 confidence and mislead your own Government. 
 
 When a very serious matter is treated of in conversation, 
 it is advisable to show the report of the conversation to the 
 Minister and ask him if it is correct. Never mind if he 
 denies his own words or wishes to add words which he never 
 spoke. The point is, to lay his views before your Govern- 
 ment ; and this is the only way in which you can be quite 
 certain of doing it. 
 
 Would that such salutary counsel had been 
 followed in more than one instance within the last 
 ten years ! Would also that Ministers of State 
 were more prudent in their statements ! Mis- 
 understandings occur, suspicions are awakened 
 by incautious statements, though very often only 
 too well justified, conflicts of interest arise, neither 
 Party is strong enough to yield, the vital im- 
 portance of certain matters to one nation is not 
 appreciated by another, a Foreign Minister or 
 high official may bid for popularity or advance- 
 ment by some high-handed proceeding, and sud- 
 denly nations find themselves in the throes of 
 an international crisis which may become un- 
 manageable before diplomacy has exhausted its 
 methods. Lord Dufferin once said to the present 
 writer that he was convinced that whenever such 
 
22 ADJUSTING INTERNATIONAL DISPUTES 
 
 international trouble arose " unintentionally," 
 it was due to some weakness of diplomatic 
 management, and that with tact and goodwill 
 on either side it was always possible to settle 
 the gravest differences by a cheaper and 
 more satisfactory method than by even covert 
 threats. 
 
 * * 4s 
 
 That trouble occurs in spite of the care taken 
 in all countries to recruit the heads of missions 
 from the most capable of the trained men 
 available, brings us to another aspect of the 
 subject. 
 
 War is like a street fire. No one can foresee 
 which way the wind may blow the flames or where 
 burning fragments may alight, and, as we see in 
 the present war, war is a danger for the neigh- 
 bouring or neutral Powers, not compensated by 
 any adequate resulting advantage to them. When 
 a fire breaks out, the first impulse of outsiders is 
 to try to stop or isolate it. Following this analogy, 
 neighbours would immediately in their interest 
 endeavour to bring the angry parties to amicable 
 negotiation. Such an impulse, strange to say, is 
 seldom followed. 
 
 Thus the good offices and mediation of third 
 parties, which have been provided for in more 
 than one international Treaty, and have been 
 naore or less minutely dealt with in one of the 
 
DIPLOMACY 23 
 
 Hague Conventions, have never been seriously 
 
 employed. 
 
 * * * 
 
 As good offices are often confused with media- 
 tion, I may explain that good offices are some- 
 thing short of a tender of mediation. On accept- 
 ance by both parties, they become mediation. 
 Until accepted, they have only a semi-official 
 character. This was the case in the Venezuela- 
 Guiana boundary question. The United States 
 suggestion of mediation to the British Govern- 
 ment '* to promote an amicable settlement of 
 the respective claims of Great Britain and Vene- 
 zuela " ^ was declined, and yet the " good offices " 
 of the United States resulted in a Treaty ^ be- 
 tween Great Britain and Venezuela to submit the 
 question to arbitration. 
 
 Mediation may be defined as a deliberate 
 effort made by a neutral and friendly State to 
 restore or to preserve peace between two States 
 at war or on the eve of war with each other. 
 , From intervention it differs in being a friendly 
 and gratuitous proceeding, which intervention 
 obviously is not. Intervention, in fact, is the 
 deliberate interference of a State in the affairs 
 of another State or as between other States for 
 the purpose of maintaining or of altering the con- 
 
 ^ Mr. Phelps to Lord Salisbury, February 8, 1887, 
 'Washington, February 2, 1897. 
 
24 ADJUSTING INTERNATIONAL DISPUTES 
 
 dition of things within it, and it is an act of 
 hostility, though its object is generally to ensure 
 the preservation of peace. 
 
 Among the several efforts made to introduce 
 mediation into the practice of States was Article 
 8 in the Treaty of Paris of March 30, 1856, con- 
 cluded at the close of the Crimean War, which 
 provided that : 
 
 If any dissension shall arise between the Sublime Porte 
 and one or more of the other Signatory Powers threatening 
 the maintenance of their good relations, the Sublime Porte 
 and each of these Powers, before resorting to force, shall give 
 an opportunity to the other Contracting Parties to mediate 
 between them in order to prevent such extreme measures. 
 
 Again in the Convention of Berlin of February 
 26, 1885 (Article 12), dealing with Central Africa, 
 it was similarly provided that : 
 
 In the case of any serious dissension having arisen on the 
 subject of or within the territories mentioned in Article 11,* 
 and placed under the regime of commercial liberty, between 
 any Signatory Powers to the present Act or the Signatory 
 Powers which may afterwards become Parties thereto, these 
 Powers bind themselves before taking up arms to have re- 
 course to the mediation of one or more of the friendly Powers. 
 
 Cases also exist in which Contracting States 
 have agreed to place themselves under the per- 
 manent mediation of some friendly Power. Such 
 a case was that of the Treaty of Yeddo between 
 
 1 Article 1 1 set out the territorial boundaries of the area in 
 question. 
 
DIPLOMACY 25 
 
 the United States and Japan of July 29, 1858, 
 Article 11 of which provided that : 
 
 The President of the United States, at the request of the 
 Japanese Government, will act as a friendly mediator in such 
 matters of difference as may arise between the Government 
 of Japan and any European Powers. 
 
 Somewhat analogous but farther-reaching was 
 a clause of the Chile-Argentine Treaty of May 28, 
 1902, in which the Contracting Parties submitted 
 all conflicts which might arise between them to 
 the arbitration of the reigning British Sovereign. 
 
 Of all such clauses, it may be said that the 
 intention is excellent. 
 
 A comparatively recent instance of successful 
 mediation, on the other hand, was that of Pope 
 Leo XIII. in the dispute which arose between 
 Germany and Spain in 1885 relative to the hoisting 
 of the German flag on one of the Caroline Islands. 
 Germany had consented to arbitration, but owing 
 to the refusal of Spain to arbitrate on a question 
 affecting her indisputable territorial rights, Ger- 
 many proposed the mediation of the Pope. Spain 
 accepted, and the Pope drew up proposals accepted 
 by the two States, which became the basis of 
 a protocol of arrangement between the Parties 
 signed at Rome on December 17, 1885. 
 
 ^h ^h 'r 
 
 At length, at the first Hague Conference in 
 1899, an attempt was made to regulate good 
 
26 ADJUSTING INTERNATIONAL DISPUTES 
 
 offices and mediation as a recognised branch of 
 diplomacy.* 
 
 The main points in the regulation were that, 
 in case of serious disagreement or conflict, before 
 making an appeal to arms, the Contracting Powers 
 agreed that they would have recourse, as far as 
 circumstances might allow, to the good offices or 
 mediation of one or more friendly Powers; that, 
 independently of this recourse, they considered it 
 expedient and desirable that one or more Powers, 
 strangers to the dispute, should on their own 
 initiative, and, as far as circumstances might allow, 
 offer their good offices or mediation to the States 
 at variance ; that Powers, strangers to the dispute, 
 had the right to offer good offices or mediation 
 even during the course of hostilities ; and that the 
 exercise of this right could never be regarded by 
 one or the other of the Parties in conflict as an 
 unfriendly act. 
 
 These Articles have proved in practice, during 
 the fourteen years they have been in force, as 
 futile as previous efforts. 
 
 * * * 
 
 The chief difficulty in the way of applying any 
 system of mediation is that, when negotiations 
 have reached a critical point and national feelings 
 are roused, the Powers in question necessarily 
 
 ^ The Articles on the subject, which were verbally modified at the 
 Conference of 1907, will be fouqd in the Appendix. See p. 136 et seq. 
 
DIPLOMACY 27 
 
 avoid any act which might be taken as a sign of 
 weakness, and, while war is raging, the only Party 
 which is likely to accept mediation is the losing 
 
 one. 
 
 In the course of the Russo-Japanese War a 
 suggestion to offer mediation was made to Lord 
 Lansdowne by the Committee of the International 
 Arbitration and Peace Association in London. 
 The Committee suggested that " the time had come 
 when His Majesty's Ministers might, in concert 
 with other Powers, appeal to the Governments of 
 Russia and Japan to suspend the course of the 
 war, if only for a temporary cessation of hostilities, 
 so that measures could be taken towards arriving 
 at some definite settlement of the territorial and 
 political contentions of the two Powers with due 
 regard to the interests of other nations." Lord 
 Lansdowne replied that neither of the belligerents 
 having expressed any desire for mediation, His 
 Majesty's Government did not consider that they 
 could with advantage take such an action as that 
 suggested by the Committee. Possibly, of course, 
 either one or both of the Parties in the war may 
 have been unsuccessfully sounded on the subject. 
 Till the final naval battle was fought, however, 
 the ultimate issue of the war was still problematic. 
 President Roosevelt immediately after that battle 
 offered his good offices to the victorious Japanese, 
 who could then accept them without loss of pres- 
 
28 ADJUSTING INTERNATIONAL DISPUTES 
 
 tige, and mediation resulted which brought the 
 war to an end. 
 
 * * * 
 
 Such mediation as the above is outside the 
 rules laid down by the Hague Conference, the 
 object of which was to find some method by 
 which difficulties could be amicably discussed and 
 solved before hostilities began, or, in the course 
 of hostilities, without waiting till after they had 
 been practically solved by war. Owing to the 
 existence of a permanent and official peace 
 organisation at the Hague, it now seems possible 
 to give mediation in connection with this organisa- 
 tion a place among the standing methods of 
 diplomacy which would largely remove the diffi- 
 culties of its application. The fact that in both 
 the Turco-Italian and Balkan Wars the Parties 
 communicated to the public, through the Press, 
 detailed semi-official statements of their griev- 
 ances, thus attempting to conciliate the public 
 opinion of Europe, showed that the Powers in 
 question were not indifferent to it.^ If, as these 
 facts seem to show, statesmen now see the im- 
 portance of conciliating public opinion, then the 
 public refusal of mediation might at any rate deter 
 the commission of acts of supreme and manifest 
 injustice. For such a purpose the International 
 
 ^ Even in the present war most of the Governments involved have 
 endeavoured, by pubhshing statements and correspondence, to justify 
 their attitudes before its outbreak. 
 
DIPLOMACY 29 
 
 Bureau at the Hague might be the medium of 
 publicity, the proposal of mediation might become 
 automatic, and the Parties to the war might be 
 placed on the defensive in stating, or declining to 
 state in case of refusal, why they refused. 
 
 n* ^^ ^h 
 
 With a view to making this suggestion perfectly 
 clear, I have drawn up the following scheme of 
 Articles, embodying what seems feasible in exist- 
 ing circumstances : 
 
 1. In case of any disagreement between any of the Con- 
 tracting States, which may have caused a rupture of diplo- 
 matic relations, the International Bureau shall at once call 
 the attention of the said States to their having agreed to the 
 following provisions : 
 
 2. The said States undertake forthwith to communicate 
 an expose of their respective grievances to the International 
 Bureau of the Hague Court. The International Bureau 
 shall, upon communication of such expose by either or both 
 Parties, immediately have it or these printed, and shall com- 
 municate with the least possible delay copies thereof to the 
 diplomatic representatives at the Hague of the other Con- 
 tracting Powers. The Bureau shall also call a meeting of the 
 said diplomatic representatives, to be held at any time not 
 exceeding ten days after communication of the said expose 
 or exposes, for the purpose of receiving any further communi- 
 cation in connection therewith, and ascertaining if any Power 
 or Powers is or are prepared to offer its or their good offices 
 for the purpose of mediation. 
 
 3. Any State shall have the right at any moment to lay 
 an expose of any difficulty which it may have been unable 
 to settle by diplomatic negotiation before the International 
 Bureau at the Hague, which, thereupon, shall print the said 
 expose and submit it to the diplomatic representatives at the 
 
30 ADJUSTING INTERNATIONAL DISPUTES 
 
 Hague, and call a meeting of the said representatives, to be 
 held at any time not exceeding twenty-one days thereafter, 
 for the purpose of receiving any communication in connection 
 therewith, and ascertaining if any Power or Powers is or are 
 prepared to offer its or their good offices for the purpose of 
 mediation. 
 
 4. If any State laying such an expose before the Bureau 
 shall not be a Contracting Power or have no diplomatic repre- 
 sentative at the Hague, it shall be entitled to request the 
 diplomatic representative of any Contracting Power to repre- 
 sent it ad hoc, and, if any such Power shall decline so to act, 
 the International Bureau may ex officio appoint any person 
 to act as representative for the purpose of communication with 
 the State in question. 
 
 These Articles being based on existing institu- 
 tions and practice require no further substructure. 
 
 There is a form of mediation which lies be- 
 yond the scope of Treaties, and which in some 
 cases, behind the scenes, has been successful 
 in procuring the satisfactory settlement of inter- 
 national differences, viz., the private mediation 
 of a common friend of the Ministers in charge of 
 the difference in his private capacity. This is 
 perhaps the most effective of all methods, when 
 extremities are still sufficiently remote for reason- 
 able suggestions to be adopted, but it has the in- 
 convenience of exciting official jealousy, which adds 
 a complication to the difficulties to be overcome. 
 
 4: 4: * 
 
 As regards mediation in connection with the 
 present war, in the fateful days which preceded 
 
DIPLOMACY 31 
 
 the outbreak of hostilities, no conciliatory efforts 
 by independent States which might have led to 
 peace were made by any neutral Power. No 
 British interest, it is true, was involved in the ulti- 
 matum to Servia, and she was not pledged by 
 Treaty to espouse the quarrel of any other Power. 
 Sir Edward Grey, on behalf of England, did pro- 
 pose the mediation of England, France, Italy 
 and Germany. France and Italy agreed. Ger- 
 many, who had accepted mediation in principle, 
 professed to be herself mediating between Russia 
 and Austria. Austria-Hungary even accepted 
 a basis of mediation. Yet all efforts failed. 
 They failed, in my opinion, as much from want 
 of a totally independent mediating Power as 
 from the absence of any sincere desire, on the 
 part of, at any rate, one Power concerned, to 
 preserve peace. In short, the present war is not 
 an appropriate example of the working or failure 
 of mediation, and no conclusions can be drawn 
 from it either for or against the principles laid 
 down at the Hague Conference. 
 
CHAPTER IV 
 
 PEACE IDEALS IN THEORY AND PRACTICE 
 
 Good offices or mediation may lead to a com- 
 plete settlement, or they may lead to one in which 
 arbitration may be accepted either on the whole 
 question or on fixed points of detail, or they may be 
 declined or fail. If they only result in delaying 
 the commencement of hostilities, time may be 
 gained. Both Parties may have time to consider 
 consequences. Then direct negotiation may suc- 
 ceed where mediation has failed. The Hague 
 Peace Convention, it has been seen, secures for 
 the Parties to it " the right " to tender good offices 
 or mediation before the commencement of hostil- 
 ities, or after they have begun, or at any time 
 during their continuance. The time may come when 
 the abnormal conditions which led to the present 
 war have been succeeded by others in which 
 nations do not bind themselves to espouse each 
 other's quarrels, when the exercise of this right 
 may have the character of an injunction. Mean- 
 while, good offices and mediation are mere 
 adjuncts of diplomacy, mere methods of pro- 
 
 3« 
 
PEACE IDEALS 33 
 
 longing or renewing negotiations directly or in- 
 directly. They may avert a war or bring it to 
 a conclusion, but they are not yet an organic 
 institution which can displace war. 
 
 * * * 
 
 ->'•' The idea of substituting peaceful methods for 
 the employment of brute force is of comparatively 
 recent origin, and is distinct from the older one 
 of drawing nations together by federation in a 
 common interest, with which it is sometimes 
 confused. 
 
 Institutions, plans and combinations of the 
 latter kind have frequently arisen in the course 
 of history. 
 
 Such a one, to begin with a pre-Christian era, 
 was the Amphictyonic Council, which grew out of 
 the common worship of the Hellenes. It was not 
 so much a political as a religious body. "If it 
 had any claim," says Freeman,^ 
 
 to the title of a General Council of Greece, it was wholly 
 in the sense in which we speak of general councils in modern 
 Europe. The Amphictyonic Council represented Greece as 
 an Ecclesiastical Synod represented western Christendom. 
 Its primary business was to regulate the concerns of the 
 Temple of Apollo at Delphi. The Amphictyonic Council 
 which met at Delphi was only the most famous of several 
 bodies of the same kind. 
 
 It is easy, however, adds Freeman, to understand how 
 the religious functions of such a body might assume a political 
 
 ^ History of Federal Government in Greece and Italy, 2nd edition , 
 London, 1893, p. 97. 
 .3 
 
34 ADJUSTING INTERNATIONAL DISPUTES 
 
 character. Thus the old Amphictyonic oath forbade certain 
 extreme measures of hostility against any city sharing in the 
 common Amphictyonic worship, and it was forbidden to 
 raze any Amphictyonic city or to cut off its water. As the 
 only deliberative body in which most Greek communities were 
 represented, its decisions were those of the bulk of the Hellenic 
 people. It sank eventually into a mere political tool in the 
 hands first of Thebes, then, under Philip, of Macedonia. 
 
 The so-called pax romana was merely peace 
 within an Empire governed by a central authority, 
 the constituent parts of which were held together 
 by a network of centralised administration. 
 
 The Feudal System was a system of offence 
 and defence, and its object was organisation for 
 war, not the organised regulation of peace. Yet, 
 it had elements of federation and peace within the 
 bonds of its hierarchy. 
 
 The spiritual influence of the Church, again, 
 was exerted to preserve relative peace among 
 feudal princes. The ** Truce of God " was estab- 
 lished by the clergy (originally in Guyenne in 
 1031) to take advantage of the holy days and 
 festivals for the restriction of the time available 
 for bloodshed. 
 
 The " Grand Design " of Henry iv. (France), 
 which some historians regard merely as the fan- 
 tastic idea of a visionary, was probably a scheme 
 of his great Minister Sully to avert by a federation 
 the conflict which he probably foresaw would 
 break out sooner or later between Catholic and 
 
PEACE IDEALS 35 
 
 Protestant Europe, and which in fact broke out 
 some fifteen years later in the Thirty Years* 
 War. 
 
 The Holy Roman Empire itself was in some 
 respects an agent for the preservation of peace 
 among its constituent States. In the same way 
 the Federation of the Swiss Cantons, of the States 
 of the North American Union and of the present 
 German Empire have served as a means of re- 
 ducing the number of possible parties to war and 
 consequently of its possible occasions. 
 
 In our own time, the Holy Alliance was an 
 arrangement entered into, in 1815, by the Emperor 
 Alexander i. of Russia (who inspired and pro- 
 posed it), the Emperor of Austria and the King 
 of Prussia, by which they solemnly proclaimed 
 their " fixed resolution," both in the administra- 
 tion of their respective States and in their political 
 relations with every other Government, to take 
 for their sole guidance " the precepts of that 
 Holy Religion, namely, the precepts of justice. 
 Christian charity and peace, which, far from being 
 applicable only to private concerns, must have 
 an immediate influence on the counsels of 
 Princes, and guide all their steps, as being the 
 only means of consolidating human institutions 
 and remedying their imperfections." The idea of 
 the Czar seems to have been to create a general 
 confederation for the maintenance of peace. Its 
 
36 ADJUSTING INTERNATIONAL DISPUTES 
 
 moral influence continued till it was overshadowed 
 by a new democratic spirit based on the brother- 
 hood of mankind and national emancipation, amid 
 which existing autocracies had to remedy their 
 own imperfections. 
 
 ^i * ^ 
 
 The Balance of Power, which has played in 
 the history of modern Europe such an important 
 part, is based on the notion of the independence 
 and stability of States. Just, as in Italy, the 
 common weal of the different republics, which 
 crowded the limited area of the peninsula, required 
 that no one of them became so powerful as to be a 
 danger to the independence of the others. Western 
 Europe had a similar danger to counteract . France, 
 Spain and the Empire were competing with each 
 other in the acquisition of power detrimental to 
 smaller States. Great Britain and the Nether- 
 lands, Prussia and Russia, had interests in the pre- 
 servation of any status quo which was threatened, 
 and wars were waged and Treaties concluded 
 to maintain or adjust the strength of States and 
 prevent any one of them from obtaining undue 
 predominance. 
 
 The break-up of what remained of Feudal 
 Europe and its readjustment under Napoleon 
 left the Western world with five fairly 
 balanced homogeneous nations. These took the 
 place of the old heterogeneous areas governed 
 
PEACE IDEALS 37 
 
 by their respective sovereigns and now assumed 
 the hegemony of the West. 
 
 * * * 
 
 In more recent times, and especially after the 
 Treaty of Paris of 1856, this combination became 
 known as the " Concert of Europe." This Con- 
 cert of Europe, as the name implies, in contra- 
 distinction to the theory of the Balance of Power, 
 was essentially a factor for the preservation of 
 peace. 
 
 In connection with the Concert of Europe, 
 humanitarians were entitled to cherish the hope 
 that it might develop into a European Council 
 of greater States, capable of insisting upon the 
 preservation of law and order among less orderly 
 communities. Unfortunately for any such hope, 
 diplomacy lost consciousness of its own destiny, 
 and Europe drifted back from its higher ideals 
 to the old " Balance of Power," in which three 
 Great Powers on the one side were in perpetual 
 rivalry with three other Great Powers. 
 
 The immediate consequence of the break-up 
 of the Concert was three disastrous wars, an 
 expansion of armaments which was almost as 
 disastrous as war itself, and the present crisis 
 in the destinies of Europe, the end of which is 
 not yet within the scope of human conjecture. 
 
 Yet the wish to bring about in Europe the rule 
 of justice. Christian charity and peace had never 
 
38 ADJUSTING INTERNATIONAL DISPUTES 
 
 been so keen as during a few years before the 
 outbreak of the present war. 
 
 * * * 
 
 In his famous rescript of August 24, 1898, 
 the ex-Czar stated that he thought the moment 
 " very favourable for seeking, by means of inter- 
 national discussion, the most effectual means of 
 assuring to all peoples the benefits of a real and 
 durable peace." In the course of the last twenty 
 years, added the rescript, the preservation of 
 peace had become an object of international policy. 
 Economic crises, due in great part to the existing 
 system of excessive armaments, were transforming 
 armed peace into a crushing burden, which 
 peoples had more and more difficulty in bearing. 
 He, therefore, proposed that there should be an 
 International Conference for the purpose of focus- 
 ing the efforts of all States which were " sincerely 
 seeking to make the great idea of universal peace 
 triumph over the elements of trouble and dis- 
 cord." The first Conference was held in 1899 
 and another followed in 1907. At the earlier 
 one twenty-six Powers were represented, at that 
 of 1907 forty-four — practically the whole civilised 
 world. 
 
 At neither Conference did the Great Powers 
 agree to anything in the sense of the Czar's main 
 purpose beyond the vague expression of a desire 
 that ** something should be done." But other 
 
PEACE IDEALS 39 
 
 work was effected which concerns the subject 
 of this book more particularly. Not only were 
 the rules respecting good offices and mediation, 
 dealt with in the last chapter, adopted, but a 
 detailed Code of International Arbitration was 
 drawn up and agreed to and an International 
 Court of Arbitration established. At the second 
 Conference both were the subject of further con- 
 solidation, a procedure for Commissions of In- 
 quiry was instituted, and the ensemble, forming 
 a new institution in the world's economy, possess- 
 ing, thanks to the generosity of Mr. Andrew 
 Carnegie, its own palace of justice and its own 
 independent staff, is now on the way to having 
 its own independent judges. 
 
CHAPTER V 
 
 NATURE, PROGRESS AND SCOPE OF ARBITRATION 
 
 We are not concerned in this volume with 
 the occasional history of arbitration, but with 
 its organisation as a judicial system and an inter- 
 national institution. This view of the subject does 
 not take us back beyond the famous Alabama 
 case. 
 
 * * 4: 
 
 The Alabama was a British-built vessel which, 
 in spite of knowledge of her destination for service 
 as a cruiser on the Confederate side in the 
 American Civil War, was allowed by the British 
 authorities to leave British waters (July 1862). 
 At the conclusion of the war, the United States 
 claimed damages from Great Britain for the havoc 
 wrought by the Alabama among the American 
 shipping, and diplomatic negotiations on the 
 subject led to an Anglo-American agreement for 
 submission to arbitration of this and other matters, 
 in which Great Britain was charged with inade- 
 quate observance of her neutral duties. 
 
 Under the agreement certain rules were laid 
 
NATURE OF ARBITRATION 41 
 
 down by the Parties for the determination of 
 neutral duty in the cases submitted, with the 
 proviso that they should not be regarded as 
 a declaration of international law. Since then, 
 however, they have come to be regarded as a 
 fair statement of neutral duty, and have now 
 been incorporated in the Hague Conventions of 
 1907 as the accepted law of neutrality. This was 
 the first instance of a determination beforehand 
 of the judicial principles on which the decisions 
 of the arbitrators were to be based. 
 
 It was also the first instance of arbitrators 
 sitting as Court of Law. There were five judges 
 — Sir Alexander Cockburn, Lord Chief Justice of 
 England, on behalf of Great Britain, Mr. Charles 
 Francis Adams, on behalf of the United States, 
 and three independent judges belonging to Italy, 
 Switzerland and Brazil respectively. Among 
 them it is seen the Parties were directly repre- 
 sented. This became a precedent for the con- 
 stitution of arbitration Tribunals thereafter. The 
 Court sat in the neutral city of Geneva. The 
 method followed was, as nearly as possible, that 
 of a Court of Justice. The award given in Decem- 
 ber 1871, shortly after the conclusion of the 
 Franco-German War, though Lord Chief Justice 
 Cockburn dissented, was carried out by the pay- 
 ment to the United States Government of a sum 
 of £3,230,000, representing the assessed damages 
 
42 ADJUSTING INTERNATIONAL DISPUTES 
 
 and cost of the award. Some indignation in 
 ultra-patriotic quarters resulted, but now, after 
 nearly half a century, it would be difficult for 
 anyone to show that the alternative of a war 
 with the United States would have been of greater 
 advantage or less costly or more to the honour 
 of England. 
 
 * * * 
 
 The example of the Alabama trial was not, 
 however, followed till twenty years later, when 
 the Behring Sea Seal Fisheries case threatened 
 Anglo-American equanimity. This time the Court 
 was composed of two judges on behalf of each 
 of the Parties and three foreigners, chosen 
 respectively from France, Italy and Sweden and 
 Norway.^ As before, the forms and procedure 
 of a Court of Justice were put in practice. 
 
 Four years later (1897) the Venezuela boundary 
 question was settled in the same legal forms by 
 a Court of Arbitration, which again sat in Paris. 
 As in the Behring Sea case, the Parties were each 
 represented by two judges — Lord Russell of 
 Killowen and Lord Justice Henn Collins on behalf 
 of Great Britain, and Chief Justice Fuller and 
 Mr. Justice Brewer of the United States Supreme 
 
 ^ It sat in Paris. The judges were Lord Hannen and Sir John 
 Thompson on the British side, Judge John Harlan and Senator J. T. 
 Morgan on the American side, and the Marquis de Visconti-Venosta 
 (Italy), M. Gregers Gram (Sweden and Norway), and Baron de Courcel 
 (France), who presided. It gave its award in August 1893. 
 
NATURE OF ARBITRATION 43 
 
 Court on behalf of Venezuela ; but this time a 
 single foreign judge was appointed, viz., Professor 
 F. de Martens of Petrograd, chosen, under the 
 protocol of reference, by agreement among the 
 other arbitrators. 
 
 * * * 
 
 The reference of minor international differ- 
 ences to arbitration had always been more or less 
 frequent. In the course of the last century over 
 a hundred matters had thus been adjusted. 
 
 International jurists, however, were generally 
 agreed that arbitration was not adapted to a 
 certain class of conflicts. 
 
 M. Rouard de Card in 1892 confined arbitrable 
 cases to matters of boundary, the possession of 
 territory, the seizure of vessels or confiscation 
 of cargoes, violent or arbitrary acts against 
 foreigners, rights of navigation and fishery and to 
 the assessment of damages.^ 
 
 Sir R. Webster (Lord Alverstone), in a speech 
 delivered before the International Law Associa- 
 tion in 1895, cited as typical cases susceptible of 
 arbitration : 
 
 1. Cases of boundary ; 
 
 2. Cases of damage for an admitted wrongful act ; 
 
 3. Cases of dispute involving questions of local right. 
 
 Professor Lorimer of Edinburgh asked, with 
 reference to the prevalent limitations to arbitra- 
 
 ^ Destinies de l' arbitrage international, Paris, 1892, p. 208. 
 
44 ADJUSTING INTERNATIONAL DISPUTES 
 
 tion, " whether the class of cases which remain 
 to it be not precisely those which have hitherto 
 been disposed of perhaps just as surely and more 
 quietly by diplomacy ? " " The percentage of 
 international differences which led to war," 
 observes that author, " was always limited ; and 
 if this percentage cannot be limited still further 
 by referring some of them to arbitration, then 
 arbitration becomes merely a method by which 
 diplomatists may ascertain facts, assess damages 
 and the like." ^ 
 
 If, however, diplomacy could so easily have 
 disposed of the matters which have been sub- 
 mitted to arbitration, is it not probable they 
 would have been thus disposed of ? Be that as 
 it may, jurists, statesmen and other practical men 
 had begun, towards the close of the nineteenth 
 century, seriously to think about the possible 
 widening of the scope of arbitration, of the pos- 
 sibility of making standing or general Treaties of 
 Arbitration, even of creating a permanent Court 
 of Arbitration, without the ironical undercurrent 
 which had previously marked the expression of 
 their feeling towards a method of settling inter- 
 national difficulties which had been made some- 
 what ridiculous by the exaggerated hopes of some 
 of the more injudicious advocates of arbitration. 
 
 •f* T^ *P 
 
 ' Law of Nations, 1883-84, p. 212. 
 
NATURE OF ARBITRATION 45 
 
 It was in these circumstances, therefore, only 
 a partial surprise to Englishmen when they heard 
 in 1896 that so positive and unemotional a states- 
 man as the late Lord Salisbury was actually in 
 person directing negotiations with the United 
 States Government for the conclusion of a stand- 
 ing Treaty of Arbitration between the two Anglo- 
 Saxon peoples. 
 
 The negotiations resulted in the signature on 
 January 11, 1897, by Lord (then Sir Julian) 
 Pauncefote, British Ambassador to Washington, 
 and Mr, Olney on behalf of the United States 
 Government, of a general Treaty of Arbitration 
 to last for five years.^ 
 
 ^ Lord Salisbury's proposals had not gone so far as this. Still, the 
 heads of a Treaty of Arbitration in certain cases drawn up by him 
 in conjunction with Lord Alverstone, then Attorney-General, and en- 
 closed in a communication to Sir Julian Pauncefote, dated March 5, 
 1896, are such a remarkable advance in the official attitude then 
 observed throughout Europe towards arbitration that the document 
 may be regarded as a historic turning-point in connection with the 
 subject. It was as follows : 
 
 " I. Her Britannic Majesty and the President of the United States 
 shall each appoint two or more permanent judicial officers for the 
 purposes of this Treaty ; and on the appearance of any difference 
 between the two Powers, which, in the judgment of either of them, 
 cannot be settled by negotiations, each of them shall designate one of 
 the said officers as arbitrator ; and the two arbitrators shall hear and 
 determine any matter referred to them in accordance with this Treaty. 
 
 "2. Before entering on such arbitration, the arbitrators shall select 
 an umpire, by whom any question upon which they disagree, whether 
 interlocutory or final, shall be decided. The decision of such an um- 
 pire upon any interlocutory questions shall be binding upon the 
 arbitrators. The determination of the arbitrators, or, if they disagree, 
 the decision of the umpire, shall be the award upon the matters 
 referred. 
 
 "3. Complaints made by the nationals of one Power against the 
 
46 ADJUSTING INTERNATIONAL DISPUTES 
 
 The Parties were to bind themselves to submit 
 for decision under it all questions in difference 
 between them which diplomacy had failed to 
 settle. 
 
 There were to be three classes of arbitra- 
 tion Tribunals. For questions of indemnity up to 
 £100,000, three arbitrators were to be necessary. 
 When more than that sum was in dispute, five 
 
 ofi&cer of the other ; all pecuniary claims or groups of claims amounting 
 to not more than ;£ 100,000 made on either Power by the nationals of 
 the other, whether based on an alleged right by Treaty or agreement 
 or otherwise ; all claims for damages or indemnity under the said 
 amount, all questions affecting diplomatic or consular privileges ; 
 all alleged rights of fishery, access, navigation or commercial privilege, 
 and all questions referred by special agreement between the two Parties, 
 shall be referred to arbitration in accordance with this Treaty, and the 
 award thereon shall be final. 
 
 " 4. Any difference with respect to a question of fact, or of inter- 
 national law, involving the territory, territorial rights, sovereignty 
 or jurisdiction of either Power, or any pecuniary claim or group of 
 claims of any kind, involving a sum larger than ;^ioo,ooo, shall be 
 referred to arbitration under this Treaty. But in any such case, 
 within three months after the award has been reported, if either Power 
 protests that such award is erroneous in respect to some issue of fact, 
 or some issue of international law, the award shall be reviewed by a 
 Court composed of three of the judges of the Supreme Court of Great 
 Britain and three of the judges of the Supreme Court of the United 
 states ; and if the said Court shall determine, after hearing the case, 
 by a majority of not less than five to one, that the said issue has been 
 rightly determined, the award shall stand and be final ; but, in default 
 of such determination, it shall not be valid. If no protest is entered 
 by either Power against the award within the time limit it shall be final. 
 
 " 5. Any difference which, in the judgment of either Power, materi- 
 ally affects its honour or the integrity of its territory, shall not be 
 referred to arbitration under this Treaty except by special agreement. 
 
 " 6. Any difference whatever by agreement between the Powers may 
 be referred for decision by arbitration, as herein provided, with stipula- 
 tion that, unless accepted by both Powers, the decision shall not be valid. 
 
 " 7. The time and place of their meeting and all arrangements for 
 the hearing and all questions of procedure shall be decided by the 
 arbitrators or by the umpire if need be." 
 
NATURE OF ARBITRATION 47 
 
 arbitrators were to be called in. Cases involv- 
 ing the " determination of territorial claims " 
 or of " questions of principle of grave general 
 importance affecting the national rights " of 
 either State were to be submitted to a Tribunal 
 composed of six members, three of whom 
 to be judges of the British Supreme Court of 
 Judicature, or members of the Judicial Com- 
 mittee of the Privy Council, and the other three 
 to be judges of the Supreme Court of the United 
 States, or justices of the Circuit Courts. Their 
 award by a majority of not less than five to one 
 was to be final. In case of an award made by 
 less than the prescribed majority, the award 
 was to become final, unless either Power should, 
 within three months after the award had been 
 reported, protest that the same was erroneous, in 
 which case it was to be of no effect. Neverthe- 
 less, in case of an award made by less than the 
 prescribed majority and protested as thus pro- 
 vided, or in case the members of the Arbitral 
 Tribunal should be equally divided, there was to 
 be no recourse to hostile measures of any descrip- 
 tion until the mediation of one or more friendly 
 Powers had been invited by one or both of the 
 High Contracting Parties. 
 
 * * * 
 
 The essential point in the Treaty was that for 
 questions of supreme national importance the 
 
48 ADJUSTING INTERNATIONAL DISPUTES 
 
 arbitrators were to belong exclusively to the 
 Contracting States. The idea which, until then/ 
 had prevailed in the constitution of Courts of 
 Arbitration was that the arbitrator, or umpire if 
 more than one, had necessarily to be a person 
 who, by his independence and entire detachment 
 from the interests involved, had the impartiality 
 requisite to inspire confidence in the pure and 
 simple application of principles of justice. It was 
 felt that very grave issues could not thus be 
 committed to the decision of foreign arbitrators 
 or of a foreign umpire. The negotiators, there- 
 fore, provided that in such cases there should be 
 neither outside arbitrators nor umpire. Further- 
 more, to allay fears that any great national 
 interest might be exposed to quixotic or un- 
 practical views taken by any single judge, it was 
 provided that, to be binding, the decision should 
 require the concurrence in favour of it of two out 
 of three of the judges of either Party. This pre- 
 cluded, by a simple and practical method, for 
 both countries any danger of a decision being 
 arrived at which might shake the confidence of 
 national opinion. 
 
 * * * 
 
 The object of the negotiators of the Treaty 
 was manifestly to provide a further stage of 
 
 ^ See, however, Cobden's anticipation in Barclay's Thirty Years' 
 Anglo-French Reminiscences, London, 1914, p. 69, 
 
NATURE OF ARBITRATION 4^ 
 
 negotiation, and thus enable Governments to 
 issue from any deadlock into which they might 
 have drifted in the heat of controversy or under 
 pressure of public feeling. In other words, the 
 negotiators endeavoured to avoid the alleged 
 shortcomings of arbitration, properly so called, 
 and to take advantage of the fact that Joint 
 Commissions had almost invariably been success- 
 ful in settUng the matters referred to them. 
 
 In fact, it may be said that the word " slT- 
 bitration " in connection with such provisions was 
 a misnomer. The Treaty was called a "Treaty of 
 Arbitration," and the Tribunal provided for an 
 •'Arbitral Tribunal." In reality, the latter, in so far 
 as grave national issues were involved, was a Joint 
 Commission instituted to meet the difficulty of 
 bringing them within the operation of a Treaty. 
 
 * * * 
 
 Negotiations, shortly after the conclusion of 
 the Anglo-American Treaty, between the Italian 
 and Argentine Governments resulted in a stand- 
 ing Treaty of Arbitration (July 23, 1896) between 
 the two States concerned for a period of ten years. 
 This Treaty, like the Anglo-American one, pro- 
 vided for arbitration in " all differences whatever \ 
 the nature or cause " ; but it went a great deal 
 further, prescribing not that in certain cases the 
 arbitrators were to be nationals of the two States, 
 but that in all cases they were not to be citizens 
 4 
 
50 ADJUSTING INTERNATIONAL DISPUTES 
 
 of either of the Contracting States, or even to be 
 domiciled or resident on their territory. 
 
 Neither of the above-described Treaties, how- 
 ever, was ratified. 
 
 So far as Great Britain is concerned, we are 
 justified in supposing that the King, to whose 
 prerogative treaty-making, not involving legis- 
 lation or financial charges, belongs, would have 
 been advised by his Government to ratify the 
 Treaty. In the United States, also, treaty- 
 making is vested in the Chief of the State, but 
 it is so subject to his acting by and with the 
 " advice and consent of the Senate " and " pro- 
 vided two-thirds of the Senators present concur." * 
 When the Treaty was submitted to the Senate for 
 ratification on May 5, 1897, there was the large 
 majority of 16 in its favour, 42 Senators having 
 voted for and 26 against it. A two-thirds clear 
 majority out of 68 would have been 46. In 
 other words, four more votes would have carried 
 the Treaty. Mere indifference may have pre- 
 vented the will of a large majority from reach- 
 ing fulfilment, and a great example, on the eve of 
 the first Hague Conference (1899), from being 
 given to the world which might have had the 
 weightiest consequences. 
 
 * 4c * 
 
 There were, nevertheless, three precedents of 
 
 1 Constitution of the United States of America, Art. 2, Section 2. 
 
NATURE OF ARBITRATION 51 
 
 Arbitration Courts, all three Anglo-American, on 
 which advocates of the adoption of judicial 
 methods in the settlement of international differ- 
 ences at the Hague Conference could rely as a 
 basis for generalisation. 
 
 All three had ultimately given satisfaction, 
 and were an encouragement to those who urged 
 the creation of a permanent Court of Arbitration 
 based on the principle of the Parties freely choosing 
 their own judges. 
 
 It was, therefore, with the two then recent in- 
 stances above referred to still fresh in the minds of 
 the delegates that a permanent Court was created. 
 
 * * * 
 
 The object of arbitration, says Article 37 of 
 the Peace Convention of 1899 -1907, is " the 
 settlement of differences between States by judges 
 of their own choice and on the basis of respect for 
 law.** This definition at once marks the dis- 
 tinction between a Court of Arbitration and a 
 Court of Law; in the latter the Parties have no 
 discretion in the choice of their judges. We shall 
 have to return to this definition later on in con- 
 nection with the proposed International Prize 
 Court and the American scheme of a Court of 
 Arbitral Justice. 
 
 Meanwhile, the "International Convention for 
 the Pacific Settlement of International Disputes," 
 as the Hague Peace Convention in question is 
 
52 ADJUSTING INTERNATIONAL DISPUTES 
 
 entitled, provides only for voluntary or optional 
 arbitration. All idea of compulsion is strictly 
 excluded from it. The boldest approximation 
 even to a recommendation of it is the statement 
 in Article 38 that " in questions of a legal nature, 
 and especially in the interpretation and the appli- 
 cation of International Conventions, arbitration 
 is recognised by the Contracting Parties as the 
 most effective and at the same time most equitable 
 means of settling disputes which diplomacy has 
 failed to settle." 
 
 Another Article empowers States (a quite un- 
 necessary authorisation) to enter into independent 
 agreements with each other extending compulsory 
 arbitration to such cases as they think fit ! 
 
 * 4: iN 
 
 The first such independent Treaty was the 
 Anglo-French agreement of October 14, 1903, 
 by which the two Contracting States obliged 
 themselves to submit to the Hague Court " differ- 
 ences of a judicial order or relative to the inter- 
 pretation of existing Treaties, on condition that 
 neither vital interests nor the independence or 
 honour of the two Contracting States nor the 
 interests of any State other than the two Con- 
 tracting States are involved." 
 
 This formula has since been followed in the 
 numerous Treaties entered into by Great Britain 
 and France with other States. 
 
NATURE OF ARBITRATION 53 
 
 It is obvious that the enforcing of such a 
 Treaty depends entirely upon the consent of both 
 Parties, and that either Party, by raising the con- 
 tention that the matter at issue is vital or involves 
 national honour, can set it aside. By referring the 
 cases set out in the Treaty to the Hague Court, 
 however, all the effect intended by those who met 
 at the Conference of 1899 has since been given to 
 its programme so far as regards arbitration, the 
 limitation as to " national honour " and " vital in- 
 terests" having been borrowed from Article 10 of 
 the project, submitted by the Russian Government 
 as the basis for discussion by the Conference. 
 
 * * * 
 
 A quite reasonable objection has been raised 
 to the costliness of proceedings before the Hague 
 Court of Arbitration. There are cases of re- 
 latively small importance which diplomacy may 
 not have been able to disentangle and which 
 a new jurisdiction, unhampered by the course 
 diplomatic negotiations may have taken, may 
 find it easier to settle. For such cases I have 
 drawn up the following protocol of submission 
 which may serve in matters of indemnity as a 
 basis for negotiation : 
 
 Model Protocol of Submission for Cases of 
 Minor Importance 
 
 The Government of and the Government of 
 
 having agreed by a Convention dated , to settle by 
 
54 ADJUSTING INTERNATIONAL DISPUTES 
 
 arbitration difficulties of the nature of that which has arisen 
 
 between them with reference to ; and having jointly 
 
 decided upon the appointment of , who has accepted 
 
 the said appointment as arbitrator therein, have concurred in 
 the adoption of the following procedure ; subject thereto, the 
 provisions of the Hague Peace Convention to be observed : 
 
 Art. I. — The decision of the arbitrator shall be final, unless 
 
 the indemnity exceed the sum of ;^ If it should 
 
 exceed this sum, the award shall, nevertheless, be final, unless 
 protested against within from delivery. 
 
 Art. II. — The plaintiff High Contracting Party shall, 
 within a period of (say) one month from the signature of 
 the present protocol, communicate to the defendant H.C.P. 
 a memorandum containing a statement of the facts, as far as 
 possible in tabular form, and a, as far as possible, detailed 
 assessment of the indemnity claimed, with copies of all 
 documentary evidence to be adduced in support thereof. 
 The defendant H.C.P. shall have a period of (say) one 
 month from the date of receipt of the said memorandum, etc., 
 in which to deliver a memorandum and any copies of 
 documentary counter-evidence in reply. The plaintiff H.C.P. 
 shall have, from receipt of the latter, a period of (say) one 
 month to present a counter-reply. 
 
 Art. III. — ^The cases and evidence, as provided for in 
 Article II., shall be printed by the plaintiff H.C.P. and laid 
 before the arbitrator within (say) one month after receipt of 
 the counter-reply. 
 
 Art. IV. — If, after submission of the said cases and evi- 
 dence, either H.C.P. shall apply for permission to present 
 further materials for the arbitrator's consideration, this shall 
 be done by a further printed statement of facts, such further 
 statement to be simultaneously presented to the arbitrator 
 and communicated to the other H.C.P. within fifteen days 
 from the date at which, under Article III., the cases and evi- 
 dence had been laid before the arbitrator. The other H.C.P. 
 shall have fifteen days to reply thereto. Thereafter no further 
 communications on either side shall be made to the arbitrator, 
 except in accordance with Article V, 
 
NATURE OF ARBITRATION 55 
 
 Art. V. — The arbitrator shall be entitled, at any time 
 until delivery of his award, to ask for such explanations 
 from either or both H.C.P. as he may deem fit. 
 
 Art. VI. — The costs of the arbitration shall be fixed by 
 the arbitrator, and shall be borne share and share alike by 
 the H.C.P. 
 
 Art. VII. — The arbitrator shall deliver his decision within 
 a period of (say) three months from the date of the receipt by 
 him of the last communication made to him by either H.C.P. 
 in accordance with the terms of the present protocol. 
 
 Art. VIII. — A copy of the award shall be delivered to each 
 H.C.P., the original to be kept in the archives of the Hague 
 Court. 
 
CHAPTER VI 
 
 NATIONAL HONOUR AND VITAL INTERESTS 
 
 When Lord Salisbury set out to conclude his 
 Treaty of " arbitration " with the United States, 
 he was much exercised to find a method of making 
 such a Treaty applicable to the kind of differences 
 which, as we have seen, are usually regarded as 
 lying beyond the scope of arbitration. 
 
 Nobody has explained the difficulty of finding 
 such a method more clearly and pointedly than 
 Lord Salisbury himself in his letter to M. Bayard 
 of March 3, 1896, enclosing the draft heads of 
 the Treaty cited in the last chapter. 
 
 Cases (he said) that arise between States belong to one 
 of two classes. They may be private disputes in respect to 
 which the State is representing its own subjects as individuals, 
 or they may be issues which concern the State itself con- 
 sidered as a whole. A claim for an indemnity or for damages 
 belongs generally to the first class, a claim to territory or 
 sovereign rights belongs to the second. For the first class 
 of differences the suitability of international arbitration may 
 be admitted without reserve. It is exactly analogous to 
 private arbitration, and there is no objection to the one that 
 would not equally apply to the other. There is nothing in 
 cases of this class which should make it difficult to find capable 
 and impartial arbitrators. But the other class of disputes 
 
 S6 
 
i^J 
 
 NATIONAL HONOUR 57 
 
 stands on a different footing. They concern the State in its 
 collective capacity, and all the members of each State, and all 
 other States who wish it well, are interested in the issue of the 
 litigation. If the matter in controversy is important, so 
 that defeat is a serious blow to the credit or the power of the 
 litigant who is worsted, that interest becomes a more or less 
 keen partisanship. According to their sympathies, men wish 
 for the victory of one side or the other. 
 
 Such conflicting sympathies interfere most formidably 
 with the choice of an impartial arbitrator. It would be 
 too invidious to specify the various forms of bias by which, 
 in any important controversy between two Great Powers, the 
 other members of the commonwealth of nations are visibly 
 affected. In the existing condition of international senti- 
 ment, each Great Power could point to nations whose admission 
 to any jury by whom its interests were to be tried it would be 
 bound to challenge, and in a litigation between two Great 
 Powers the rival challenges woiild pretty well exhaust the 
 catalogue of the nations from whom competent and suitable 
 arbiters could be drawn. It would be easy but scarcely 
 decorous to illustrate this statement by examples. They 
 will occur to anyone's mind who attempts to construct a 
 panel of nations, capable of providing competent arbitrators, 
 and will consider how many of them would command equal 
 confidence from any two litigating Powers. 
 
 This is the difficulty which stands in the way of unre- 
 stricted arbitration. By whatever plan the Tribunal selected, 
 the end of it must be that issues in which the litigant States 
 are most deeply interested will be decided by the vote of one 
 man, and that man a foreigner. He has no jury to find his 
 facts, he has no Court of Appeal to correct his law, and he is 
 sure to be credited, justly or not, with a leaning to one 
 litigant or the other. Nations cannot afford to run such risk 
 in deciding controversies by which their national position 
 may be affected or a number of their fellow-subjects trans- 
 ferred to a foreign rule. 
 
 The plan which is suggested in the appended draft Treaty ^ 
 
 » See p, 45. 
 
58 ADJUSTING INTERNATIONAL DISPUTES 
 
 would give a Court of Appeal from the single voice of a foreign 
 judge. It would not be competent for it to alter or reverse 
 the umpire's decision, but if his judgment were not confirmed 
 by the stipulated majority, it would not stand. The Court 
 would possess the highest guarantee for impartiality which 
 a Court belonging to the two litigating nations would possess. 
 Its operation in arresting a faulty or doubtful judgment 
 would make it possible to refer great issues to arbitration 
 without the risk of a disastrous miscarriage of justice. 
 
 I am aware that to the warmer advocates of arbitration 
 this plan will seem unsatisfying and imperfect. But I believe 
 that it offers an opportunity of making a substantial advance, 
 which a more ambitious arrangement would be unable to 
 secure, and if, under its operation, experience should teach 
 us that our apprehensions as to the danger of reposing an 
 unlimited confidence in this kind of Tribunal are unfounded, 
 it will be easy, by dropping precautions that will have become 
 unnecessary, to accept and estabhsh the idea of arbitration 
 in its most developed form. 
 
 Lord Salisbury's draft ^ consequently pro- 
 vided for appeal in certain cases, and contained a 
 proviso that any difference which in the judg- 
 ment of either Power materially affected its 
 honour or the integrity of its territory should not 
 be referred to arbitration under the Treaty except 
 by special agreement. This proviso was ulti- 
 mately abandoned, but, as has been seen, the 
 final text of the Treaty provided for dealing 
 with such cases or, as stated in the Treaty, with 
 cases of "territorial claims" and "questions of 
 principle of grave general importance affecting 
 the national rights," by what was practically to 
 
 » See p. 45. 
 
NATIONAL HONOUR 59 
 
 be a Joint Commission with pre-determined powers 
 of final decision.^ 
 
 A year later (August 12, 1898), the Czar sub- 
 mitted his project of holding the Peace Conference 
 which was held in 1899. Though called more 
 expressly to deal with the question of excessive 
 armaments, the scheme of work laid before the 
 Conference embraced among the subjects for 
 discussion a draft Treaty for the adoption of 
 compulsory arbitration. It did not, however, 
 even suggest any solution of the difficulty Lord 
 Salisbury had pointed out and sought to over- 
 come. 
 
 Article 10 of this draft, indeed, provided that 
 arbitration should be obligatory in the cases 
 enumerated in it, but only "in so far as not 
 affecting the vifal interests or national honour of 
 the Contracting States." This was the origin 
 of the now time-honoured exception, which was 
 first adopted in the Anglo-French Treaty and 
 has since been copied in the numerous Treaties 
 for which it has served as a model. 
 
 If we eliminate the cases which are certainly 
 not vital, we find a residue of cases which cannot 
 be settled by an award of damages, such as cases 
 
 See p. 178. 
 
6o ADJUSTING INTERNATIONAL DISPUTES 
 
 involving a State's territorial independence or in- 
 tegrity, its freedom to determine its own mode 
 of government, legislation and institutions, its 
 power to receive political refugees from other 
 countries, its right to grant absolute freedom 
 of thought and of its expression even as regards 
 matters beyond its boundaries, etc. We may 
 regard these as "vital." 
 
 " National honour " is very like a *' vital 
 interest," but it generally arises out of the over- 
 heated discussion of some question which may 
 have been originally merely a judicial one. In 
 the hands of an unskilled diplomacy every question 
 can become one of national honour, and very 
 often what is called " national honour " is merely 
 a one-sided view of a question in which " honour " 
 plays very little part. 
 
 " The exception of honour," once said Lord 
 Bryce, "is of very doubtful merit, because ques- 
 tions of so-called national honour are often just 
 the questions which most need to be referred to 
 arbitration, inasmuch as they are those which 
 a nation finds it hardest to recede from when it 
 has once taken up a position, so that the friendly 
 intervention of a third party is especially valuable. 
 The value of arbitration, or of conciliation, by a 
 third party lies not merely in its providing a 
 means of determining a difficult issue of law or 
 fact, but in its making it easy for the Contracting 
 
NATIONAL HONOUR 6i 
 
 Parties to abate their respective pretensions with- 
 out any loss of dignity." ^ 
 
 The term " national honour," in fact, is so 
 vague and elastic that it is difficult to see what 
 cases it might not be made to cover, and though 
 arbitration has never ceased to be regarded by 
 some Foreign Offices with distrust, public opinion 
 all over the world expected so much, and after 
 the war will probably expect so much more, 
 from it as an ultimate substitution for war, that 
 a term a little more precise and yet fulfilling the 
 purpose pointed out by Lord Bryce would be 
 welcomed. I suggested in 1907 ^ that both " vital 
 interest " and " national honour " might be re- 
 placed by the term, " not affecting the internal 
 laws or institutions or independence or territorial 
 integrity of either Contracting State." ^ 
 
 * 4c 4s 
 
 The difficulties which Lord Salisbury pointed 
 out did not prevent several States, however, from 
 
 ' Congress of Jurists, 1904, Report, p. 27. 
 
 " See Problems of International Practice and Diplomacy, pp. 145, 
 148. A clause in the following form is probably all that "vital in- 
 terests " probably can be held to mean : " All difficulties which it 
 has not been possible to settle by diplomatic methods, and affecting 
 neither the independence nor territorial integrity nor the internal laws or 
 institutions of any such H.C.P., nor matters involving prior arrangements 
 of any H.C.P. with third Parties." 
 
 ' The Interparliamentary Union has suggested for the wording 
 of the "national honour" exception : " So far as they do not affect 
 either their independence or vital interests, or the sovereign 
 authority of the respective countries, or the interest of third 
 Powers." 
 
62 ADJUSTING INTERNATIONAL DISPUTES 
 
 entering into Treaties covering all differences be- 
 tween them without exception. 
 
 Such unlimited Treaties have been concluded 
 between Argentina and Chile (1902), Denmark 
 and the Netherlands (1904), Denmark and Italy 
 (1905), Denmark and Portugal (1907), Italy and 
 Argentina (signed at the Hague in 1907 during 
 the Peace Conference), and Italy and the Nether- 
 lands (1909). Except -in the case of the Treaty 
 between Argentina and Chile, these Treaties, it 
 is seen, are confined to States between which war 
 is a most unlikely contingency. 
 
 The difficulty is to devise a form which will 
 embrace all cases on lines analogous to those of 
 the Salisbury Treaty above described,^ or a form 
 which is capable of more or less automatic ex- 
 tension to cases not specifically provided for. 
 
 « * 4e 
 
 A form of Treaty of the last-mentioned kind 
 is that which was signed between France and 
 Denmark on August 9, 191 1. 
 
 Its first provisions are in the usual terms, viz. : 
 
 Differences of juridical character, and more particularly 
 those relating to the interpretation of Treaties existing between 
 the two Contracting Parties, which may arise between them 
 and which it has not been possible to settle by diplomacy, 
 shall be submitted to arbitration, in the terms of the Con- 
 vention for the Pacific Settlement of International Differences, 
 provided they do not affect the vital interests, independence 
 
 ' See p. 56, 176 et seq. 
 
NATIONAL HONOUR 63 
 
 or honour of either of the Contracting Parties, nor the interests 
 of third Powers (Art. i). 
 
 To this principle, however, another Article 
 provides exceptions. " Differences relating to the 
 following matters," says Article 2, " shall be 
 submitted to arbitration without the reservations 
 mentioned in Article i " : 
 
 1. Pecuniary claims for damages when the principle of an 
 indemnity has been admitted by the Parties ; 
 
 2. Contractual debts claimed from the Government of one 
 of the Parties by the Government of the other as due to its 
 nationals ; 
 
 3. Interpretation and application of commercial and 
 navigation agreements ; 
 
 4. Interpretation and application of conventional stipula- 
 tions relative to the following matters : Industrial property, 
 copyright, posts and telegraphs, submarine cables, etc. etc. 
 
 It is further provided in this Treaty that in 
 respect of the matters referred to in class 4 of 
 these exceptions, the Contracting Parties have the 
 right to defer submitting such cases to arbitra- 
 tion until after the national Courts have decided 
 finally on them. 
 
 Lastly, the Treaty in question contains a 
 clause providing that the Arbitrators shall decide 
 in case of a difference of opinion between the 
 Contracting States, as to whether a case belongs 
 to the one or the other category. 
 
 This is a most interesting Treaty, perhaps the 
 best drawn in existence, and, as convener of the 
 
64 ADJUSTING INTERNATIONAL DISPUTES 
 
 Arbitration Committee of the Institute of Inter- 
 national Law, I have taken it as the basis of my 
 suggestions in drafting a model form for general 
 acceptance in view of the third Hague Conference/ 
 which will no doubt be held in due course after the 
 present conflict is over. 
 
 * * * 
 
 The Anglo-American Treaty of Arbitration 
 of August 3, 191 1, is a most interesting new 
 departure in the effort to deal with " vital in- 
 terests " by pacific means, but, like those of the 
 Treaty of 1897, its methods are only partly those 
 of arbitration. 
 
 The Treaty, in fact, sets out by restricting the 
 scope of arbitration to differences relating to 
 international matters in which the High Con- 
 tracting Parties are concerned " by virtue of a 
 claim of right made by one against the other under 
 Treaty or otherwise, and which are justiciable in 
 their nature by reason of being susceptible of 
 decision by the application of the principles of 
 law and equity." It does not, however, provide 
 that arbitration, even when applicable, shall 
 forthwith come into operation, but presents a 
 certain number of preliminary stages which may 
 be summed up as follows : 
 
 I. Request by either Party to submit any 
 
 ^ See p. 114 et seq. See also Annuaire de I'lnstitut de Droit 
 International. 
 
NATIONAL HONOUR 65 
 
 differences between the Parties to a Joint High 
 Commission of Inquiry ; 
 
 2. Power to either Party to postpone the 
 reference to the High Commission for one year 
 from the date of the request therefor, in order 
 to afford an opportunity for diplomatic discussion 
 and adjustment of the questions in controversy 
 if either Party desires such postponement ; 
 
 3. Appointment by each Party of three of 
 their nationals, these to form the Joint High 
 Commission ; 
 
 4. Holding of the inquiry by the Joint High 
 Commission, the inquiry to be followed by a report 
 upon the " particular question or matters referred 
 to it, for the purpose of facilitating the solution 
 of disputes by elucidating the facts and to define 
 the issues presented by such questions, and also 
 to include in its report such recommendations 
 and conclusions as may be appropriate " ; 
 
 5. If the difference persists, the case, unless 
 it is excluded by the terms of Article i, as set out 
 above, becomes the subject of an agreement of 
 reference to arbitration, which is to provide for 
 the organisation of the Tribunal, define the scope 
 of the arbitration and determine the question or 
 questions at issue. 
 
 The obvious object of the Treaty is to create 
 a series of steps calculated to divert attention 
 from the issue to the method of settlement, and 
 5 
 
66 ADJUSTING INTERNATIONAL DISPUTES 
 
 thus enable diplomacy to gain time, while pro- 
 viding the means of obtaining a calm examination 
 of the points involved. One of its chief merits 
 certainly is the ingenuity with which the pro- 
 cedure of conciliation and settlement is prolonged, 
 and, when two Governments are equally desirous 
 of a peaceful adjustment, it will secure the im- 
 mediate removal of any questions, whether 
 arbitral or not, from discussion on the part of an 
 over-zealous public opinion. 
 
 ♦ * He 
 
 Nearly all the standing Treaties hitherto con- 
 cluded or renewed, however, exclude " national 
 honour " and " vital interests " from their opera- 
 tion. It would appear as if few Governments 
 were as yet ready to take the responsibility of 
 binding themselves to arbitrate without a means 
 of escape from the obligation. The new Treaties 
 between Great Britain and the United States, and 
 the United States and France, it has been seen, 
 are no exception. Though they provide for 
 investigation by a preliminary Joint Commission 
 of Inquirj^ for all cases whatsoever, they confine 
 arbitration to claims of right justiciable in their 
 nature by the principles of law and equity (Art. i). 
 This obviously excepts from arbitration all 
 questions based on policy and not on grounds 
 of legal right, which amounts for practical pur- 
 poses to the adoption under another formula of 
 
NATIONAL HONOUR 67 
 
 the vital interest clause, and any interest is vital 
 till the sense of the term becomes fixed, if either 
 Party choose so to describe it. 
 
 3(C 5(C ^ 
 
 Under existing Treaties among European 
 States, it is seen, it is in the discretion of either 
 Party to a dispute to describe the difference as 
 involving a " vital interest " and remove it from 
 the operation of the Treaty. An aggressor, as 
 I have said, who has no equitable grounds on 
 which to base an application to the Hague Court 
 or to any other Tribunal of independent judges, 
 is obviously not likely to accept jurisdiction 
 which would practically have no alternative but 
 to find against him. Thus, in his ultimatum to 
 Turkey (September 26, 191 1), the Marquis di San 
 Giuliano took care to state that the issue between 
 his country and Turkey constituted, " so far as 
 Italy is concerned, a vital interest of the very first 
 order." This was evidently intended to enable 
 his Government to set up the exception against 
 any suggestion of arbitration. Italy happened to 
 be the European State which had had most 
 courage in concluding Treaties in which no such 
 exception figured ! 
 
 Though States of the first rank are so reluctant 
 to agree to the enlargement of the scope of arbitra- 
 tion, we must not overlook the fact that[ there is 
 soniething to be said in favour of providing a j/"' 
 
J 
 
 68 ADJUSTING INTERNATIONAL DISPUTES 
 
 loophole by which either Contracting Party can 
 escape in any particular emergency from its 
 obligations. Treaties between nations, unfortun- 
 ately, are not exactly in the same position as 
 contracts between individuals. The best sanction 
 they have is the sense of honour and justice of the 
 Contracting Parties, and it may be argued that it 
 will always be better to let a State escape from a 
 Treaty through its own provisions than by violating 
 them.) 
 
 Meanwhile, under a form like the Franco- 
 Danish,^ it would be possible to carry out the late 
 Lord Salisbury's idea of extending the scope of a 
 Treaty, as experience warranted, not, it is true, 
 as he proposed by dropping precautions, but by 
 deliberately adding to the range of its operation. 
 
 1 See p. 195- 
 
CHAPTER VII 
 
 THE EXISTING AND PROPOSED HAGUE COURTS 
 
 The most novel and most striking work achieved 
 by the first Hague Conference (1899) was un- 
 questionably the creation of the Permanent 
 Court of Arbitration for the decision of inter- 
 national differences. It was the boldest effort 
 ever made by statesmen to substitute, in the 
 settlement of such differences, law and justice 
 for brute force. 
 
 There is something colossal in the very idea of 
 a Court of Justice for the decision of differences 
 between States. One thinks of the graduation of 
 our national Courts, of how our judicial organisa- 
 tion provides an ever higher rank and greater 
 function as it ascends from rung to rung in the 
 hierarchy, and yet the highest rung only deals 
 with very small matters compared with the 
 immense interests which may be involved in the 
 decision of an international issue. One's sense of 
 proportion asks what kind of judges are great 
 enough to inspire awe and confidence in the mighty 
 
 litigants who are to lay aside their swords and 
 
 69 
 
70 ADJUSTING INTERNATIONAL DISPUTES 
 
 humbly submit their differences to this highest 
 jurisdiction of mankind. 
 
 But, in fact, the Court instituted is not truly a 
 Court of Justice in the ordinary sense of the term 
 at all. The novelty, and a momentous one it was, 
 and as a foundation necessary before a true Court 
 of Justice could be reared, lay in the centralising 
 at the Hague of all methods for the pacific settle- 
 ment of international disputes which diplomacy 
 had failed to adjust. As regards arbitration, 
 the chief of these methods, the creation of a panel 
 of judges, had a very particular theoretical signi- 
 ficance. It was necessary to the idea of a Court, 
 not only that it should have its registrar, its 
 records and its managing staff, but also its 
 potential, in the absence of actual, judges. It 
 must not be forgotten that a moral institution 
 is like a building. Confidence in the foundations 
 must precede the raising of the structure. 
 
 •I* T* 'I* 
 
 The Hague Convention provided that within 
 the three months following its ratification, each 
 Power should select four persons of known capacity 
 in questions of international law, of the highest 
 moral reputation and disposed to accept the 
 duties of arbitrators, to be inscribed as members 
 of the Court. Two or more Powers can agree on 
 the selection in common of one or more members, 
 and the same person can be selected by different 
 
EXISTING HAGUE COURTS 71 
 
 Powers. It provides also that when the Con- 
 tracting Powers have recourse to the Court, 
 the arbitrators shall be chosen from its list. 
 Another Article, moreover, provides that, though 
 the Court is competent for all arbitration cases, 
 the Parties may agree to institute a special 
 Tribunal, and that the International Bureau at 
 the Hague is authorised to place its premises 
 and its staff at the disposal of any such special 
 Tribunal. 
 
 All this shows the tentative character of the 
 Hague Court. In restraining their ambition the 
 delegates were well advised, for otherwise they 
 might never have reached any practical result 
 at all. Even in spite of the tentative character 
 of the new institution, it was some time before 
 Foreign Offices could be brought to acknowledge 
 its existence, and for three years after it was 
 created it remained like a marble monument, 
 grand but useless, a mere record of the work of 
 Peace it symbolised. At length the United States 
 and Mexico gave it its first trial. The two great 
 Republics of North and Central America came 
 across -the Atlantic to the home of Grotius and 
 submitted a difference between them to the juris- 
 diction of the new and untried Court, as Baron 
 Descamps, the eminent Belgian Senator who 
 pleaded the case, said, " to give a lesson to the 
 Old World." The example set by the United 
 
72 ADJUSTING INTERNATIONAL DISPUTES 
 
 States and Mexico has now been followed by 
 Great Britain, France, Germany, Italy, Belgium, 
 Venezuela, Sweden and Norway, Russia, Spain, 
 Portugal, Turkey, Holland, Japan and Peru. 
 
 * * * 
 
 The cases which have been tried by the Hague 
 Court since October 1902, the date of its first 
 case, now number sixteen — a sufficient number to 
 afford a very good idea of the capabilities of the 
 Court, — and are in themselves interesting not only 
 as precedents but as specimens of arbitrable cases 
 which arise between States. 
 
 They are as follows : 
 
 1. United States v. Mexico (pious funds of the Californias) 
 
 Award, Oct. 14, 1902 ; 
 
 2. Great Britain, Italy and Germany v. Venezuela (pre- 
 
 ferential claims). Award, Feb. 22, 1904 ; 
 
 3. France, Great Britain and Germany v. Japan (Japanese 
 
 house-tax). Award, May 22, 1905 ; 
 
 4. France v. Great Britain (Muscat Dhows). Award, Aug. 8, 
 
 1905 ; 
 
 5. France v. Germany (deserters at Casablanca). Award, 
 
 May 22, 1909 ; 
 
 6. Norway and Sweden (frontier). Award, Oct. 23, 1909 ; 
 
 7. Great Britain v. U.S.A. (North Atlantic Coast Fisheries). 
 
 Award, Sept. 7, 1910 ; 
 
 8. U.S.A. V. Venezuela (Orinoco S.S. Co. claim). Award, 
 
 Oct. 25, 1910 ; 
 
 9. France v. Great Britain (arrest and surrender of Savarkar). 
 
 Award, Feb. 24, 1911 ; 
 
 10. Italy V. Peru (Canevaro claim). Award, May 3, 
 
 1912 ; 
 
 11. Russia V. Turkey (claim for unpaid interest). Award, 
 
 Nov. II, 1912 ; 
 
EXISTING HAGUE COURTS 73 
 
 12 and 13. France v. Italy (seizures of the Carthage and 
 Manouba). Award, May 6, 1913 ; 
 
 14. France v. Italy (seizure of the Tavignano and firing 
 
 on Tunisian vessels Kafnouna and Gaulois). 
 Settled out of Court ; 
 
 15. Netherlands v. Portugal (frontiers in island of Timor). 
 
 Pending ; 
 
 16. Spain, France, Great Britain v. Portugal (seizure of 
 
 pious funds in Portugal). Pending. 
 
 I. The first case related to a Roman Catholic 
 fund formed in the eighteenth century for the 
 purpose of converting native Indians to Chris- 
 tianity and maintaining a priesthood in Upper 
 and Lower California, then a part of Mexico. 
 By a decree of 1842, this fund was transferred 
 to the Mexican Government, which undertook to 
 pay interest thereon in perpetuity in furtherance 
 of the design of the original donors. After the 
 sale of Upper California to the United States in 
 1848, the Mexican Government having refused 
 to pay the proportion of the interest to which 
 Upper California was entitled, the question of 
 liability was referred to Joint Commissioners. 
 On their failing to agree, Sir Edward Thornton, 
 British Minister at Washington, who had been 
 appointed umpire, in 1875 found there were due 
 from Mexico to Upper California, represented by 
 its bishops as administrators of the fund, arrears 
 of interest amounting to a sum of nearly ;f 100,000, 
 which was directed to be paid in gold. This 
 award was carried out, but payment of the 
 
74 ADJUSTING INTERNATIONAL DISPUTES 
 
 further accruing interest was withheld, i.e., from 
 October 24, 1868. Ultimately, by agreement 
 between the two Governments, the settlement of 
 the dispute was referred to the Hague Tribunal, 
 the points to be determined being (i) Whether 
 the matter was res judicata by reason of Sir Edward 
 Thornton's award, and (2) whether, if not, the 
 claim for the further interest was just. The Court 
 decided both questions in the affirmative, Mexico 
 to pay the annual sum claimed not in gold but 
 '' en monnaie ayant cours legal au Mexique," 
 Sir E. Thornton's direction as to payment in gold 
 applying to the mode of the execution of the 
 award only, and therefore not being res judicata. 
 
 2. In the second case, it had been agreed that 
 payment of a certain claim by Great Britain, 
 Germany and Italy on behalf of their respective 
 subjects against the Venezuelan Government 
 should be secured on 30 per cent, of the customs 
 revenue collected at two Venezuelan ports. 
 An attempt having been made by Great Britain, 
 Germany and Italy to enforce their claims by 
 blockade, a further question arose as between these 
 three Powers, on the one hand, and the United 
 States', France, Spain, Belgium, the Nether- 
 lands, Sweden and Norway and Mexico, which 
 had claims against Venezuela but had taken no 
 part in the blockade, on the other, as to whether 
 the blockading Powers were entitled to pre- 
 
EXISTING HAGUE COURTS 75 
 
 ferential treatment. The arbitrators decided 
 unanimously in favour of granting preferential 
 treatment to the blockading Powers, and ordered 
 payment of their claims out of the 30 per cent, 
 of the customs revenue of the two Venezuelan 
 ports appropriated to meet them. 
 
 3. The third case, which was between Great 
 Britain, France and Germany on the one hand, 
 and Japan on the other, dealt with a dispute 
 relating to the legality of a house-tax imposed by 
 Japan on certain subjects of the Powers concerned 
 who held leases in perpetuity. It turned upon 
 the construction of Treaties entered into between 
 the European Powers in question and Japan in 
 1894 and 1896. The Court decided against the 
 Japanese construction of the Treaties in question. 
 
 4. The fourth had reference to an alleged 
 misuse of the French flag at Muscat, capital of the 
 kingdom of Oman, on the S.E. coast of Arabia. 
 Oman is ruled by a sultan, whose independence 
 Great Britain and France had, by Treaty in 1862, 
 engaged to respect. France had, nevertheless, 
 issued to certain native dhows, owned by subjects 
 of the Sultan, papers authorising them to fly the 
 French flag, not only on the Oman littoral but in 
 the Red Sea. A question arose as to the manner 
 in which this authorisation affected the juris- 
 diction of the Sultan over such dhows, the masters 
 of which took advantage of their immunity from 
 
76 ADJUSTING INTERNATIONAL DISPUTES 
 
 search to carry on contraband trade- in slaves, 
 arms and ammunition. The Court decided that 
 the owners or masters of dhows, though duly 
 authorised to fly the French flag, did not enjoy, in 
 consequence of that fact, any such immunity as 
 would exempt them from the sovereignty and 
 jurisdiction of the Sultan, as such exemption 
 would be contrary to the reciprocal engagement 
 entered into to respect the Sultan's independence. 
 
 5. The case of the deserters of Casablanca 
 was one which, had the relations between Germany 
 and France been good, would probably never 
 have arisen at all. In the French army there is 
 a *^ foreign legion " used for colonial service. Six 
 privates belonging to it deserted, and obtained 
 passports from the German Consulate at Casa- 
 blanca. They were supposed to be, all of them, 
 German subjects. It turned out eventually that 
 only two of the six were Germans. The deserters 
 were arrested, in spite of some resistance on the 
 part of persons in the service of the Consulate. 
 Hot words passed in the newspapers, but the 
 two Governments agreed to refer the matter to 
 the Hague Court, which gave its decision in 
 favour of France on grounds too obvious to require 
 examination. 
 
 6. The case between Sweden and Norway 
 turned on a frontier question which arose out 
 of the separation of these two States. It was 
 
EXISTING HAGUE COURTS 77 
 
 decided in favour of Sweden without a murmur 
 on the part of the Norwegians.^ 
 
 7. The case of the North Atlantic Fisheries^ 
 was the most important of the matters which 
 have as yet been dealt with by the Hague Court, 
 not only on account of the gravity of the issue 
 generally, but also on account of the different 
 delicate questions dealt with in the award. The 
 case related to the respective British and American 
 rights in Newfoundland waters under Article i 
 of the Anglo-American Convention of October 20, 
 1818. This Article provided that the inhabitants 
 of the United States should for ever, in common 
 with British subjects, have liberty to take fish 
 of every kind on certain specified coasts of New- 
 foundland, and that they should also for ever have 
 liberty to dry and cure fish in any of the unsettled 
 bays, harbours and creeks on the specified parts 
 of the southern shores of Newfoundland and of 
 the coast of Labrador, but that so soon as any 
 portion thereof became settled it would not be 
 lawful for the American fishermen to dr}^ or cure 
 fish thereat without previous agreement for such 
 purpose with the inhabitants, proprietors or 
 possessors of the ground. The United States, 
 
 ^ The arbitrators were MM. Loeff, Beichmann and Hammerskjold. 
 M. Loeff was a Dutch Ex-Minister of Justice. 
 
 2 The arbitrators were Professor Lammasch of Vienna (President), 
 Dr. Savornin-Lohman, Dutch Minister of State ; Judge George Gray, Sir 
 Ch. Fitzpatrick and Dr. Drago, Ex-Minister of Foreign Affairs of the 
 Argentine RepubUc. 
 
7d> ADJUSTING INTERNATIONAL DISPUTES 
 
 on the other hand, renounced hberty to take, dry 
 or cure fish on or within three marine miles off 
 any of the British American coasts, bays, creeks 
 or harbours not inckided within the specified 
 limits. American fishermen, however, had the 
 right to enter such bays and harbours for the 
 purpose of shelter or repairs, the purchase of 
 wood and the obtaining of water, but they were 
 to be under such restrictions as might be necessary 
 to prevent any abuse of the privileges reserved to 
 them. 
 
 Differences arose as to the scope and mean- 
 ing of these provisions. The British authorities 
 claimed the right to deal in their regulations with 
 the hours, days and seasons when the fish may 
 be taken, with the methods, means and imple- 
 ments used in fishing operations, etc. There was 
 also a difference of view between the British and 
 American authorities as to the mode of measuring 
 the three marine miles off any of the coasts, bays, 
 creeks or harbours referred to in the Article. 
 Besides these, there were a number of other 
 more or less subsidiary points submitted to the 
 Court. 
 
 The award confirmed the British claim to 
 make such regulations as were appropriate or 
 necessary for the protection and preservation of 
 the fisheries or desirable or necessary on grounds 
 of pubUc order and morals, provided they did 
 
EXISTING HAGUE COURTS 79 
 
 not unnecessarily interfere with the fishery itself 
 and were not so framed as to give an advantage 
 to local over American fishermen. Any question 
 as to the reasonableness of any regulation was 
 to be referred to a Commission of three expert 
 specialists, one to be designated by each of the 
 Parties and the third not to be a national of either 
 Party and to be appointed by the Court/ 
 
 To enable the Governments to deal with any 
 difference of views between them before resort- 
 ing to the Commission, the Court recommended 
 official publication of any regulations as to hours, 
 days and seasons for taking fish, as to methods, 
 means, implements, etc., two months before their 
 coming into operation, to enable the United States 
 Government to raise any question as to their 
 inconsistency with the Treaty of 1818, in which 
 case the Commission would decide on the difference 
 between the two Governments. 
 
 On the question of the mode of measuring the 
 three marine miles, the Court decided that in 
 case of bays, the three marine miles should be 
 measured from a straight line drawn across the 
 body of the water at the place where it ceases 
 to have the configuration and characteristics of a 
 bay. At all other places, the three miles were 
 
 ^ The Court appointed Dr. P. P. C. Hoek, scientific adviser to the 
 Netherland Fisheries. The other members who have since been ap- 
 pointed are Dr. Hugh Smith, on behalf of the U.S.A., and the Hon. 
 Donald Morison. Newfoundland, Minister of Justice. 
 
8o ADJUSTING INTERNATIONAL DISPUTES 
 
 to be measured following the sinuosities of the 
 coast. It recommended, however, the method 
 followed in the North Sea Fisheries Convention of 
 May 8, 1882, of fixing the Hne at the part of the 
 bay nearest the entrance where the width does 
 not exceed ten miles. From the operation of this 
 general proposition the award excepted a certain 
 number of bays " where the configuration of the 
 coast and the local climatic conditions are such 
 that foreign fishermen, when within the geo- 
 graphic headlands, might reasonably and bona fide 
 believe themselves on the high seas," and fixed 
 for these certain points between which the line 
 should be drawn. 
 
 This long, detailed award, of which the above, 
 long as it is, is merely a summary of its chief 
 provisions, is full of interesting points con- 
 nected with fishery methods, territorial waters 
 and bays, and will certainly have considerable 
 influence in the treatment of similar matters in 
 the future. 
 
 8. The Orinoco S.S. Co. claim between the 
 U.S.A. and Venezuela raised the question of 
 whether, in case an umpire exceeds his powers 
 and bases his decision on errors of law and fact 
 essential to the matter at issue, the award is hable 
 to revision. The Court's decision on this point, 
 which establishes a precedent of the greatest 
 moment for the future, was as follows : 
 
EXISTING HAGUE COURTS 8i 
 
 Whereas it is assuredly in the interest of peace and the 
 development of the institution of international arbitration, 
 so essential to the well-being of nations, that on principle 
 such a decision be accepted, respected and carried out by the 
 Parties without any reservation as it is laid down in Article 8i 
 of the Convention for the Pacific Settlement of International 
 Disputes of October i8, 1907 ; and, besides, no jurisdiction 
 whatever has been instituted for reconsidering similar 
 decisions. 
 
 But whereas, in the present case, it having been argued 
 that the decision is void, the Parties have entered into a new 
 agreement under date of February 13, 1909, according to 
 which, without considering the conclusive character of the first 
 decision, this Tribunal is called upon to decide whether 
 the decision of Umpire Barge, in virtue of the circumstances 
 and in accordance with the principles of international law, 
 be not void, and whether it must be considered so conclusive 
 as to preclude a re-examination of the case on its merits ; 
 
 Whereas, by the agreement of February 13, 1909, both 
 Parties have at least implicitly admitted, as vices involving the 
 nullity of an arbitral decision, excessive exercise of jurisdiction 
 and essential error in the judgment {exceso de poder y error 
 essencial en el fallo) ; 
 
 Whereas the plaintiff Party alleges excessive exercise of 
 jurisdiction and numerous errors in law and fact equivalent 
 to essential error ; 
 
 Whereas, following the principles of equity in accordance 
 with law, when an arbitral award embraces several independent 
 claims, and consequently several decisions, the nullity of one 
 is without influence on any of the others, more especially 
 when, as in the present case, the integrity and good faith 
 of the arbitrator are not questioned, this being ground for 
 pronouncing separately on each of the points at issue. 
 
 The Court proceeded to the revision accordingly. 
 
 9. The Savarkar case turned on the delicate 
 
 question of whether a fugitive under a criminal 
 
 charge, who had escaped from the ship on which 
 6 
 
82 ADJUSTING INTERNATIONAL DISPUTES 
 
 he was being conveyed to his place of trial (India), 
 and had been arrested by the poHce of the country 
 (France) to which he escaped and handed over 
 immediately (in error) by that pohce to those in 
 charge of him, should not have been delivered 
 back to the Government of the State to which he 
 had escaped and dealt with under the extradition 
 Treaty between the two States concerned. The 
 arbitrators decided that, as in the circumstances 
 there had been no atteinte d la souverainete of 
 the country to which he had escaped, and all 
 parties had acted in good faith, and no disavowal 
 of the surrender was made known till two days 
 after the departure of the vessel, the act of the 
 local police, though done in error, closed the 
 incident. This decision, based on considerations 
 outside the strictly legal question involved, marks 
 the difference between arbitrators, who as such 
 can disregard technical questions, and a Justiciary 
 Court which has little latitude when confronted 
 with an unquestioned and legal principle, such 
 as the universal one that a fugitive who sets 
 foot on foreign soil is beyond the jurisdiction 
 of the police of his country except by and 
 through the operation of a Treaty of extradition. 
 The fact that the French Government made a 
 claim shows that it had not waived its right. 
 Though it is evident that, if France had decHned 
 to grant the extradition (which she very possibly 
 
EXISTING HAGUE COURTS 83 
 
 would have done), the Hberation of Savarkar 
 might have led to difficulties, the precedent is 
 an unfortunate one, and should be regarded rather 
 in the Hght of a compromise necessary in the cir- 
 cumstances than in that of a judicial decision. 
 
 10. The Canevaro affair between the U.S.A. 
 and Peru arose out of a loan made to the Dictator 
 Pierola in 1880 by semi-Itahan bankers. The 
 question turned on an assessment involving no 
 principle of any general interest. 
 
 11. The Turco-Russian case related to a 
 claim of interest on an indemnity payable by 
 Turkey to Russian claimants or their nominees, 
 which had been satisfied after long intervening 
 delays. The arbitrators, while admitting the 
 justice of the claim in principle, decided against 
 Russia, on the ground that the Russian Govern- 
 ment, when accepting instalments, never made 
 any reserve as to interest, but the award, far 
 from satisfactorily establishing the justice of the 
 decision, is even self-contradictory. 
 
 12 and 13. The Carthage affair arose out of 
 the stoppage and temporary seizure of a French 
 mail-ship by the Italian naval authorities during 
 the Turco-Italian War. In the Manouha case 
 the seizure was complicated by the arrest of 
 Ottoman passengers. 
 
 These two cases would have been tried by 
 the International Prize Court of Appeal had 
 
84 ADJUSTING INTERNATIONAL DISPUTES 
 
 it been in existence.^ The fact that they were 
 tried by the ordinary Hague Court and exist- 
 ing procedure shows that the alleged injustice 
 suffered by British vessels at the hands of the 
 Russian national Courts was capable of remedy 
 without waiting for the ratification of the Prize 
 Court Convention, and in fact is still so. 
 
 14. The Tavignano, etc., case gave rise to no 
 decision, having been settled out of Court ; and 15 
 and 16, the two last mentioned, are still pending. 
 
 >K H< % 
 
 An attentive reader will have observed that 
 none of the cases which have as yet been sub- 
 mitted to the Hague Court involved acute diffi- 
 culties. In the wars which, since 1899, have 
 actually taken place, viz., the Russo-Japanese, 
 Turco-Italian or Balkan Wars, and the present 
 gigantic conflict, there was really no arbitrable 
 matter of essential importance. In all of them, 
 moreover, the aggressor was in such haste to " get 
 his blow in first " that hostilities were already in 
 full operation before other vStates had time to 
 realise that war had broken out or had any precise 
 idea of the nature of the aggressor's grievances. 
 
 He 4c 4e 
 
 It is beyond the scope of a short volume like 
 the present to examine in detail the legal effect of 
 these different awards, or their grounds, motives 
 
 ' See p. 168. 
 
EXISTING HAGUE COURTS 85 
 
 and recitals, but I may say that several have been 
 severely criticised from the point of view of law 
 and justice ; but law and justice, I repeat, are not 
 the only considerations in cases of arbitration. 
 
 The report of the Savarkar case showed that 
 the arbitrators, by consent of the Parties, were 
 settling the question in the best way possible 
 under the circumstances. Savarkar, without ques- 
 tion, was legally free the moment his feet touched 
 French territory, but as he had been handed back 
 by the French police, and as, by the time the 
 Hague case came on for trial, he was already in 
 the hands of justice in India, to have decreed that 
 he should be released might have given rise to 
 much complication, which the award averted. 
 
 In the Turco-Russian case positive injustice 
 was done to the interested Parties. The case 
 was decided in favour of Turkey, probably be- 
 cause the Russians originally interested were no 
 longer concerned, and the Russian representa- 
 tives may not have pressed a claim to which 
 their nationals had become indifferent. 
 
 In other cases, the decisions have been based 
 less on the idea that the mission of the arbitrators 
 is to give their decision in strict accordance with 
 law, than on that they must find a method of 
 closing the matter with the minimum of ill-feehng 
 
 on either side. 
 
 4: ♦ * 
 
86 ADJUSTING INTERNATIONAL DISPUTES 
 
 A Court of Arbitration, in fact, can seldom be 
 guided by purely judicial considerations. The 
 principle of lex dura sed lex is obviously out of 
 place in an institution, the object of which is to 
 substitute pacific for coercive methods. 
 
 The large number of cases which are reversed 
 on appeal shows that even in our national courts 
 justice is often merely a term for decision be- 
 tween two rival claims both equally arguable. 
 When a case is reversed on appeal, and the de- 
 feated litigant is converted from the position of 
 victorious into that of the defeated party, one may 
 ask if a compromise would not have been more 
 just. It is obvious that in international cases, 
 to steer between the arguments of Parties who 
 regard their case with an equal conviction of 
 justice being on their side, is more strictly in 
 conformity with the objects of arbitration than 
 to give a strictly legal decision which, if a griev- 
 ance resulted, would discourage recourse to this 
 method of settling differences. 
 
 Nevertheless, it has been felt by many that 
 an independent Court of Justice on the model 
 of the national Courts, with permanent judges 
 ready at all times to deal with cases presented 
 to it, is desirable. At the Hague Conference the 
 American delegates insisted upon this require- 
 ment, and, in response to their suggestion, a 
 recommendation for the constitution of a Court 
 
EXISTING HAGUE COURTS 87 
 
 of Arbitral Justice was adopted, the scheme of 
 which figures as an appendix to the final act of 
 the Conference.^ 
 
 Secretary Root, who was a partisan of such 
 a Court, had instructed the American delegates 
 to point out to the Conference that " the method 
 in which arbitration can be made more effective 
 so that nations may be more ready to have re- 
 course to it voluntarily " had been indicated 
 by " observation of the weakness of the existing 
 system." There was no doubt, he said, that the 
 principal objection to arbitration rested not 
 upon the unwillingness of nations to submit 
 their controversies to impartial arbitration, but 
 upon an apprehension that the arbitration to 
 which they submitted might not be impartial. 
 [It had been a very general practice for arbi- 
 trators to act not as judges deciding questions of 
 fact and law upon the record before them under 
 a sense of judicial responsibility, but as negoti- j J 
 ators effecting settlements of questions brought 
 before them, in accordance with the traditions i 
 and usages and subject to all the considerations 
 and influences which affect diplomatic agents.j) 
 The two methods were radically different, pro- 
 ceeded upon different standards of obHgation 
 and frequently led to widely differing results. 
 " It very frequently happens," he added, " that 
 
 ' See p. 1 59 et seq. 
 
88 ADJUSTING INTERNATIONAL DISPUTES 
 
 a nation which would be very wilhng to submit 
 its differences to an impartial judicial determina- 
 tion is unwilling to subject them to this kind of 
 diplomatic process. If there could be a Tribunal 
 which would pass upon questions between them 
 the same impartial and impersonal judgment 
 that the Supreme Court of the United States 
 gives to questions arising between citizens of the 
 different States, or between foreign citizens and 
 citizens of the United States, there can be no doubt 
 that nations would be much more ready to submit 
 their controversies to its decision than they are 
 now to take the chances of arbitration." " It 
 should be your effort/' he instructed, " to bring 
 about in the second Conference a development 
 of the Hague Tribunal into a permanent Tribunal 
 composed of judges who are judicial officers and 
 nothing else, who are paid adequate salaries, 
 who have no other occupation, and who will 
 devote their entire time to the trial and decision 
 of international causes by judicial methods and 
 under a sense of judicial responsibility. These 
 judges should be selected from the different 
 countries, in order that the different systems of 
 law and procedure and the principal languages 
 shall be fairly represented. The Court should 
 be made of such dignity, consideration and 
 rank that the best and ablest jurist shall 
 accept appointment to it, and that the whole 
 
EXISTING HAGUE COURTS 89 
 
 world will have absolute confidence in its judg- 
 ments." 
 
 The scheme set out in the appendix to the 
 Hague Convention ^ was the result of delibera- 
 tions ably conducted under the auspices of the 
 late Mr. Choate, chief American delegate, and his 
 indefatigable lieutenant, Dr. James Brown Scott, 
 the American legal expert at the Hague Con- 
 ference of 1907.- 
 
 * * * 
 
 The Hague Conference of 1907, however, not 
 only drew up the scheme of a Court of Arbitral 
 Justice. As already mentioned, it also drew up 
 a scheme of an International Court of Prize. 
 There are, therefore, two International Courts 
 for which provision has been made apart from 
 the existing Court. 
 
 The International Prize Court was created to 
 act as a Court of Appeal from decisions of the 
 national Prize Courts in cases concerning neutral 
 property and persons, enemy goods on board 
 neutral vessels, etc. — in fact, in all cases which 
 are regarded in international practice as within 
 the Prize Court jurisdiction. 
 
 ^ See p. 1 59 et seq. 
 
 2 Dr. James Brown Scott's services to international law are 
 numerous. He was not only the founder of the American Society of 
 International Law and its admirably edited Journal, but, as director of 
 the legal section of the organisation founded to deal with Mr. Carnegie's 
 magnificent gift to the cause of peace, he is as indefatigable in con- 
 nection with it as he has been in all the other work he has undertaken. 
 
90 ADJUSTING INTERNATIONAL DISPUTES 
 
 This proposed special Court does not fall 
 within the scope of the present volume, except 
 in so far that it belongs to the work of inter- 
 nationalising justice where the partiality of the 
 judges may reasonably be questioned. Secretary 
 Knox, on behalf of the United States Govern- 
 ment, suggested a fusion of this Court with the 
 proposed Court of Arbitral Justice. Cases within 
 the proposed International Prize Court's juris- 
 diction^ have been referred to the existing Court 
 and under the existing regulations. This fact 
 foreshadows the possibility of shaping the con- 
 stitution of the existing Hague Court in such a 
 way as to divide it into sections corresponding to 
 the different needs of international justice. 
 
 SP 5JC 3|5 
 
 In spite of this abundance of proposed Courts, 
 jurisdictions and regulations, we are still far from 
 bringing within the jurisdiction of pacific methods 
 possible causes of war and the realisation of the 
 spirit of impartial justice even in matters which, 
 though they occasion ill-feeling dangerous to peace, 
 are not in themselves of a nature to directly pro- 
 voke war. 
 
 I Justice, after all, is in itself rather an ideal than 
 
 a reality. The necessity of adopting procedure 
 
 to bring cases to an end, the uncertainty of evi- 
 
 \ ^ dence, the fact that a decision must be given 
 
 ' See p. 1 68. 
 
EXISTING HAGUE COURTS 91 
 
 upon the evidence forthcoming, whether complete 
 or not, the different temperaments and prejudices 
 inherent to our faulty human nature of both 
 judges and advocates, their differing degrees of 
 ability, circumstances, pressure of business, acci- 
 dents of procedure, all tend to qualify, impede i j 
 and distort justice as given in Courts at Law. 
 
 The best, perhaps after all, that we can get 
 from an International Court of Arbitration is not 
 necessarily justice, but a settlement which closes 
 the incident or grievance and permits of its being 
 eliminated from both national and international 
 preoccupations and becoming as soon as possible 
 a thing of the past.) 
 
CHAPTER VIII 
 
 INTERNATIONAL COMMISSIONS OF INQUIRY 
 
 When the Russian Government in January 1899 
 tabulated its agenda for the discussions of the 
 proposed Hague Conference, the first subject on 
 the list was the main question of how to effect some 
 contractual limitation of armaments, the exclusion 
 of certain weapons from warfare, the interdiction 
 of the dropping of projectiles from balloons, the 
 prohibition of submarine torpedo-boats, the codi- 
 fication of the practice of war, the adaptation of 
 the principles of the Geneva Convention to naval 
 warfare and, lastly, the acceptance of good offices, 
 mediation and voluntary arbitration, and the 
 establishment of a uniform practice in connection 
 with them. 
 
 When this agenda, more fully elaborated by the 
 Russian Government, was laid before the Con- 
 ference, it contained as a sort of afterthought 
 draft Articles for the institution of a new method 
 entitled " International Commissions of Inquiry." 
 
 Of the different matters discussed, the main 
 question relating to armaments led only to an 
 
COMMISSIONS OF INQUIRY 93 
 
 expression of pious wishes, and no heed whatever 
 in practice has been paid to the suggested limita- 
 tion of the destructive agencies it was proposed to 
 forbid. 
 
 As regards pacific methods of adjusting inter- 
 national differences, the Russian Government 
 attached by far the greater importance to good 
 offices and mediation, which seemed at the time 
 the most progressive of pacific methods among 
 those available. It was proposed to empower 
 neutral States at all times to offer their mediation 
 as a matter of right, justified by community of 
 international interests and the interdependence 
 of civilised nations. We have seen in another 
 chapter that this method now bids fair to justify 
 the Russian expectations. 
 
 The proposal of a standing Court of Arbitration 
 was also an afterthought. It came from England, 
 supported by the United States. 
 
 Of the different pacific methods adopted, the 
 only one which can be said with quasi-certainty 
 to have averted war was just the new one of 
 ** International Commissions of Inquiry." This 
 experience shows the utility of making all possible 
 additions to the machinery of peace, however 
 small may appear at the time theii" chance of 
 being put in practice. 
 
 4: 9fC 9i« 
 
 Tlie occasion on which the insignificant clauses 
 
94 ADJUSTING INTERNATIONAL DISPUTES 
 
 of the Peace Convention relating to this new 
 institution saved Europe from war is now known 
 as the " Doggerbank incident," an occasion in- 
 volving not only the "national honour," and felt 
 to involve it from one end of Great Britain to the 
 other, but also a British interest of the most 
 vital character in the safety of the high sea. The 
 fate of the Russian Fleet and all the consequences 
 which its destruction might have entailed were for 
 some hours at the mercy of a popular excite- 
 ment unparalleled in contemporary memory. 
 Among the advocates of peace there was a clamour 
 for arbitration which, however, was out-shouted 
 by a counter-clamour for war. Before assess- 
 ment of damages for an act of pure vandalism, 
 there was a question of criminal and murderous 
 assault on unoffending fishermen within a few 
 miles of the British coast, in a part of the 
 North Sea far removed from the natural high- 
 way between the Baltic and the mouth of the 
 British Channel. Amid the prevailing excite- 
 ment it was impossible to propose to leave it to 
 the arbitration of an International Tribunal to 
 decide whether the Russian admiral had acted 
 rightly or wrongly. The Russian Government 
 admitted that the injury done to the fishermen 
 was unprovoked by those who were injured, but 
 it merely sought to excuse the commission of the 
 injury, and arbitration could only fix the amount of 
 
COMMISSIONS OF INQUIRY 95 
 
 the indemnity payable. Between it and war, how- 
 ever, there was the intermediate method of re- 
 course to the new procedure provided by the 
 Hague Peace Convention under the heading of 
 ** Commissions of Inquiry," which left it open to 
 the British Government, after the facts had been 
 ascertained and the question determined of where 
 the responsibility lay and the degree of the blame, 
 to exact the amends the situation required. 
 
 By the adoption of this course time was gained 
 and public excitement was allayed.^ 
 
 mi * * 
 
 No one at the present day would assert that 
 this conclusion of the incident was not more 
 
 iThe reference of the difficulty which arose out of the Dogger- 
 bank incident, to a Commission of Inquiry, was embodied in a Declara- 
 tion exchanged (November 12-25, 1903) between the British and 
 Russian Governments which ran as follows : 
 
 The Government of His Britannic Majesty and the Imperial Govern- 
 ment of Russia having agreed to entrust to an International Com- 
 mission of Inquiry, assembled in accordance with Articles IX.-XIV. 
 of the Hague Convention of July 29 (17), 1899, for the pacific settle- 
 ment of international conflicts, the care of elucidating by an impartial 
 and conscientious examination the questions of fact relating to the 
 incident which took place during the night of October 21-22 (8-9), 
 1904, in the North Sea, in the course of which the firing of cannon of 
 the Russian Fleet occasioned the loss of a boat and the death of 
 two persons belonging to a flotilla of British fishermen, and also 
 damages to other boats of the said flotilla, and wounds to the crew 
 of some of these boats. The undersigned, duly authorised to this 
 effect, are agreed upon the following provisions : 
 
 Art. I. The International Commission of Inquiry shall be composed of 
 
 five members (Commissioners), two of whom shall be officers of high rank 
 in the British and Imperial Russian Navies respectively. The French and 
 United States Governments shall each be requested to choose one of their 
 naval officers of high rank to be a member of the Commission. The fifth 
 member shall be elected by the four above-mentioned members. In case 
 the four Commissioners should not agree as to the choice of a fifth member 
 
96 ADJUSTING INTERNATIONAL DIS.^UTES 
 
 satisfactory than would have been a recourse to 
 arms which might have involved us in complica- 
 tions far beyond the scope of the immediate issue. 
 For the consolation of those who think that the 
 chance of waging a successful war should never 
 
 of the Commission, His Majesty the Emperor of Austria, King of Hungary, 
 shall be invited to make the appointment. Each of the two High Con- 
 tracting Powers shall also appoint a jurist as assessor, with voix consultative, 
 and an agent officially charged to take part in the work of the Commission. 
 
 Art. II. — The Commission shall make an inquiry into and draw up a 
 report upon all the circumstances relating to the North Sea incident, and 
 particularly upon the question of where the responsibiUty Ues, and upon 
 the degree of the blame affecting the nationals of the two High Contracting 
 Powers or of other countries, in case their responsibiUty should be ascertained 
 by the inquiry. 
 
 Art. III. — The Commission shall fix the details of the procedure which 
 shall be followed by it for the accomplishment of the work with which it 
 has been entrusted. 
 
 Art. IV. — ^The High Contracting Powers undertake to give to the Inter- 
 national Commission of Inquiry, as far as possible, the means and facilities 
 necessary to obtain a thorough knowledge and appreciation of the facts in 
 question. 
 
 Art. V. — The Commission shall meet in Paris as soon as possible after 
 the signature of this arrangement. 
 
 Art. VI. — ^The Commission shall present its report to the two High Con- 
 tracting Powers, signed by all the members of the Commission. 
 
 Art. VII. — ^The Commission shall give all its decisions by a majority of 
 the votes of the five Commissioners. 
 
 Art. VIII. — ^The High Contracting Powers undertake each to bear, par 
 riciprocifi, their respective expenses in the inquiry incurred prior to the 
 meeting of the Commission. As regards the expenses incurred by the 
 International Commission of Inquiry from the date of its meeting for the 
 arrangement of its working and the necessary investigation, they will be 
 defrayed in common by the two Governments. 
 
 In faith of which, etc. 
 
 (Signatures.) 
 
 The second Hague Conference dealt very fully with the procedure 
 of Commissions of Inquiry, a procedure largely based on that which 
 was formulated by Sir Edward Fry for the purposes of the Doggerbank 
 inquiry. 
 
 See further on the subject, Barclay, Thirty Years' Anglo-French 
 Reminiscences, pp. 253 e^ seq. 
 
COMMISSIONS OF INQUIRY 97 
 
 be allowed to slip and that one's neighbour's 
 weakness is just such a chance, I may recall the 
 fact that the battle of Mukden had been fought, 
 and that there was nothing to prevent a Russo- 
 Japanese peace being patched up which would 
 have released the Russian forces then in a con- 
 venient situation to deal with some Russian 
 ambitions with which British interests were in 
 
 vital conflict. 
 
 « « « 
 
 The institution of International Commissions 
 of Inquiry, we have seen, owed its origin to the 
 project submitted by the Russian Government in 
 1899. The Article proposed in the project made 
 reference to a Commission obligatory whenever 
 differences arose between the Contracting States 
 owing to divergencies of " appreciation " on 
 matters of fact in which no question of honour 
 and no essential interest was involved. This 
 qualification was not regarded as a sufficiently 
 wide loophole, and the further qualification was 
 added that the obligation would only apply " as 
 far as circumstances allow." 
 
 The Article therefore read as follows : 
 
 Art. IX. — In differences of an international nature in- 
 } volving neither honour nor essential interests and arising from 
 a difference of opinion on points of fact, the Contracting 
 Powers deem it expedient and desirable that the Parties, who 
 have not been able to come to an agreement by means of 
 diplomacy, as far as circumstances will allow, institute an 
 7 
 
98 ADJUSTING INTERNATIONAL DISPUTES 
 
 International Commission of Inquiry, to facilitate a solution 
 of these differences by elucidating the facts by means of an 
 impartial and conscientious investigation. 
 
 The timid redaction of this Article is evidence 
 of the diplomatic anxiety which must have accom- 
 panied the birth of a novel diplomatic institution. 
 After the introduction of the " circumstances 
 permitting" condition, no one would have been 
 surprised if the other qualification in the Article 
 had been amended to read in the opposite sense, 
 i.e., involving either honour or an essential in- 
 terest, in other words, had been made to apply 
 to any cases whatsoever which a State might be 
 ready to investigate. 
 
 * * * 
 
 The successful solution of the only case which, 
 since the creation of the Hague Court, can be 
 regarded as one involving the "national honour" 
 by a pacific method, seems to indicate the direc- 
 tion further international evolution might take 
 to bring about the application of pacific methods 
 to the settlement of issues of which States are 
 still reluctant to leave the ultimate decision to 
 an independent Tribunal. This has been felt 
 with special cogency in the United States, where 
 Government, being more or less detached from 
 European rivalries, is able to take a bolder atti- 
 tude towards pacific methods than European 
 Powers, from fear of being taxed with weakness, 
 
COMMISSIONS OF INQUIRY 99 
 
 dare assume. One of the first acts of Secretary 
 Bryan, a warm champion of " pacifism/' on the 
 accession to power of President Wilson in March 
 1913, was, therefore, to take up the question of 
 forwarding the general adoption of the pacific 
 method which had proved itself the most effective 
 of the different Hague devices for the preserva- 
 tion of peace. A few weeks later (April 24) he 
 communicated to the representatives of the 
 Powers at Washington what is now known as the 
 "Wilson-Bryan Peace Plan." The plan was set 
 out in the Note communicated to them in the 
 following terms : 
 
 The Parties hereto agree that all questions of whatever 
 character and nature in dispute between them shall, when 
 diplomatic efforts fail, be submitted to investigation and 
 report to an International Commission (the composition to 
 be agreed upon), and the Contracting Parties agree not to 
 declare war or begin hostilities until such investigation is 
 made and report submitted. 
 
 The investigation shall be conducted as a matter of course 
 upon the initiative of the Commission, without the formality 
 of a request from either Party ; the report shall be submitted 
 within (time to be agreed upon) from date of the submission 
 of the dispute, but the Parties hereto reserve the right to act 
 independently on the subject-matter in dispute after the 
 report is submitted. 
 
 In principle the " plan " was accepted by 
 twenty-nine States, including Great Britain, 
 France, Germany, Russia, Austria-Hungary and 
 Italy. Among those which had not yet accepted 
 it at the outbreak of the present war were Turkey 
 
100 ADJUSTING INTERNATIONAL DISPUTES 
 
 and Japan. With six Central and South American 
 and one European State, viz., Holland, agree- 
 ments in the sense of the above Declaration were 
 promptly signed, an example which was after- 
 wards followed by Great Britain. 
 
 * * * 
 
 Whether such an agreement will be signed 
 after the war by others of the Great Powers which 
 have accepted the principle of the reference to an 
 Inquiry Commission or not, the terms of the 
 plan are so courageously pacific that they deserve 
 attention, if on no other ground. The agreement 
 with Salvador which has served as the model 
 for the others will be found in extenso appended 
 to this chapter. If such an agreement were 
 signed by the greater Pov/ers, it would indeed be 
 an achievement for the welfare of mankind of the 
 first magnitude. I venture to suggest that it 
 would be an enormous step forward if greater 
 Powers bound themselves merely to accept 
 examination by an independent and impartial 
 committee of the matter at issue and of the con- 
 duct of the war, without undertaking to delay or 
 suspend hostilities. For my own part, I think 
 that even if this did not commend itself to the 
 States in question, an unofficial committee of men 
 of high intellectual and moral standing, created 
 to investigate international grievances and give 
 their opinion upon them, might have an influence 
 
COMMISSIONS OF INQUMY ioi 
 
 on public opinion of the greatest value to the 
 preservation of peace. 
 
 NOTE TO CHAPTER VIII., THE WILSON-BRYAN 
 
 PEACE PLAN 
 
 Model Treaty Contracted with the Republic 
 
 OF Salvador 
 
 The United States of America and the Republic of 
 Salvador, being desirous to strengthen the bonds of amity 
 that bind them together and also to advance the cause of 
 general peace, have resolved to enter into a Treaty for that 
 purpose and to that end have appointed as their pleni- 
 potentiaries : 
 
 The President of the United States, the Honourable 
 William Jennings Bryan, Secretary of State ; and 
 
 The President of Salvador, Seiior Don Federico Mejia, 
 Envoy Extraordinary and Minister Plenipotentiary of 
 Salvador to the United States ; 
 
 Who, after having communicated to each other their 
 respective full powers, found to be in proper form, have agreed 
 upon the following articles : 
 
 Article I 
 
 The High Contracting Parties agree that all disputes be- 
 tween them, of every nature whatsoever, which diplomacy shall 
 fail to adjust, shall be submitted for investigation and report 
 to an International Commission, to be constituted in the 
 manner prescribed in the next succeeding Article ; and they 
 agree not to declare war or begin hostilities during such 
 investigation and report. 
 
 Article II 
 
 The International Commission shall be composed of five 
 members, to be appointed as follows : One member shall be 
 chosen from each country, by the Government thereof ; one 
 
102 ADJCJSTiN-G LVTERNATIONAL DISPUTES 
 
 member shall be chosen by each Government from some third 
 country ; the fifth member shall be chosen by common 
 agreement between the two Governments. The expenses of 
 the Commission shall be paid by the two Governments in 
 equal proportion. 
 
 The International Commission shall be appointed within 
 four months after the exchange of the ratifications of this 
 Treaty ; and vacancies shall be filled according to the manner 
 of the original appointment. 
 
 Article III 
 
 In case the High Contracting Parties shall have failed to 
 adjust a dispute by diplomatic methods, they shall at once 
 refer it to the International Commission for investigation and 
 report. The International Commission may, however, act 
 upon its own initiative, and in such case it shall notify 
 both Governments and request their co-operation in the in- 
 vestigation. 
 
 The report of the International Commission shall be 
 completed within one year after the date on which it shall 
 declare its investigation to have begun, unless the High Con- 
 tracting Parties shall extend the time by mutual agreement. 
 The report shall be prepared in triplicate ; one copy shall be 
 presented to each Government, and the third retained by the 
 Commission for its files. 
 
 The High Contracting Parties reserve the right to act 
 independently on the subject-matter of the dispute after the 
 report of the Commission shall have been submitted. 
 
 Article IV 
 
 Pending the investigation and report of the International 
 Commission, the High Contracting Parties agree not to increase 
 their military or naval programs, unless danger from a third 
 Power should compel such increase, in which case the Party 
 feeling itself menaced shall confidentially communicate the 
 fact in writing to the other Contracting Party, whereupon the 
 latter shall also be released from its obligation to maintain its 
 military and naval status quo. 
 
COMMISSIONS OF INQUIRY 103 
 
 Article V 
 
 The present Treaty shall be ratified by the President of the 
 United States of America, by and with the advice and consent 
 of the Senate thereof ; and by the President of the Republic 
 of Salvador, with the approval of the Congress thereof ; and 
 the ratifications shall be exchanged as soon as possible. It 
 shall take effect immediately after the exchange of ratifications, 
 and shall continue in force for a period of five years ; and it 
 shall thereafter remain in force until twelve months after one 
 of the High Contracting Parties have given notice to the other 
 of an intention to terminate it. 
 
 In witness whereof, etc. 
 
CHAPTER IX 
 
 COMPULSORY TREATIES OF REFERENCE 
 
 In a previous chapter we have examined the 
 methods by which States have sought, on the one 
 hand, to preserve a loophole by which they may 
 escape from the obligation to accept arbitration, 
 and, on the other, by which they have endeavoured 
 to provide for pacific settlement by Joint Commis- 
 sions, if not by arbitration, of differences which 
 they are reluctant to regard as arbitrable. 
 
 We have, in an intervening chapter, examined 
 the cases which have been tried at the Hague 
 with a view to ascertaining how in practice refer- 
 ence to the Hague Court works out. 
 
 In another intervening chapter we have seen 
 that the Hague Court is likely to undergo changes 
 corresponding to the variety of the cases which 
 come before it, or are of a nature to be decided 
 by it, and are at present withheld from it or might 
 be referred to it under special reservations, etc. 
 Lastly, we have examined the application of 
 Commissions of Inquiry. 
 
 We are now in a position to consider com- 
 
 104 
 
TREATIES OF REFERENCE 105 
 
 pulsory Treaties of Arbitration under which 
 States deny themselves the luxury of war in 
 certain or all cases, the scope within which such 
 self-denial can safely be agreed to by larger 
 and contiguous States, and the mode in which 
 agreements for such a purpose have hitherto 
 been, or seem capable of being, formulated. 
 
 4: % H: 
 
 The significance of arbitration Treaties depends 
 on the importance in the community of nations of 
 the States between which they are made. 
 
 When the Concert of Europe still existed, the 
 Great Powers were Great Britain, France, Germany, 
 Austria-Hungary, Italy, Russia and Turkey. The 
 Concert was superseded b}^ a revival of the Balance 
 of Power between the Powers of the Alliance : 
 Germany, Austria-Hungary and Italy ; and those of 
 the Entente : Great Britain, France and Russia. 
 It is possible that this most unfortunate grouping 
 of the States of Europe was merely the result of 
 a passing phase of diplomatic ineptitude or in- 
 difference to questions vital to democratic progress 
 and prosperity, and that the common interest of 
 the Powers which have most to lose and the 
 greatest physical force to withstand encroach- 
 ment and aggression by any one of them will 
 again assert itself after the present insensate 
 storm has spent itself. The Great Powers in this 
 case would be Great Britain, France, Germany, 
 
io6 ADJUSTING INTERNATIONAL DISPUTES 
 
 (possibly still) Austria-Hungary, Italy, Russia, 
 the United States and Japan. War between any 
 of these States is necessarily not only a greater 
 calamity to the world, but from their geographical 
 relationship to one another it is a less remote 
 contingency than war between minor States. 
 Standing arbitration Treaties between them are, 
 therefore, of greater moment than those with or 
 between minor States. 
 
 ^ 4i * 
 
 From the above point of view, there are three 
 kinds of Treaties of arbitration, viz.. Treaties 
 between Great Powers, Treaties between minor 
 States and Treaties between Great Powers and 
 minor States. 
 
 All three kinds exist in practice, and an examin- 
 ation of their nature and scope will show the 
 direction in which experience is influencing pro- 
 gressive development. 
 
 * * * 
 
 Let us first deal with the Treaties which have 
 been entered into between Great Powers. 
 
 Since the signing of the Anglo-French Treaty 
 on October 14, 1903, the following Great Powers 
 have signed Treaties : France and Italy, December 
 25, 1903 ; Great Britain and Italy, February i, 
 1904 ; Great Britain and Germany, July 12, 1904 ; 
 Great Britain and Austria-Hungary, January 11, 
 1905 ; United States and France, February 10, 
 
TREATIES OF REFERENCE 107 
 
 1908 ; United States and Italy, March 28, 1908 ; 
 Great Britain and United States, April 4, 1908 ; 
 United States and Japan, May 5, 1908 ; United 
 States and Austria-Hungary, January 15, 1909 ; 
 Italy and Russia, October 27, 1910 ; Great Britain 
 and United States, August 3, 191 1 ; United States 
 and France, August 3, 1911. 
 
 Recast in a more convenient form for com- 
 parison, these work out as follows : 
 
 Great Britain has signed compulsory Treaties 
 with the following Great Powers : France (1903), 
 Germany (1904), Italy (1904), Austria-Hungary 
 (1905) and the United States (1908) ; 
 
 France with Great Britain (1903), Italy (1903) 
 and the United States (1911) ; 
 
 Germany with Great Britain (1904) ; 
 
 Italy with France (1903), Great Britain (1904), 
 the United States (1908) and Russia (1910) ; 
 
 Russia with Italy (1910) ; 
 
 Austria-Hungary with the United States (1909) 
 and Great Britain (1910) ; 
 
 The United States with Great Britain (1908), 
 Austria-Hungary (1909) and France (1908) ; 
 
 Japan with the United States (1908). 
 
 All of these (with the exception of the Treaties 
 of 191 1 between the United States and Great 
 Britain and the United States and France) have 
 been modelled on the Anglo-French agreement of 
 October 14, 1903, that is, the Treaty which may be 
 
io8 ADJUSTING INTERNATIONAL DISPUTES 
 
 said to be the minimum" form of a standing com- 
 pulsory Treaty. 
 
 The Anglo-French Treaty, in fact, confines the 
 '' compulsion " to differences of a judicial order 
 and to the interpretation of existing Treaties 
 between Contracting Parties, which it may not 
 have been possible to settle by diplomacy, pro- 
 vided neither the vital interests nor the inde- 
 pendence or honour of the two Contracting States, 
 nor the interests of any State other than the 
 two Contracting States, are involved. Moreover, 
 it provides a safeguard against compulsion by 
 stipulating that in each particular case the 
 High Contracting Parties, before addressing 
 themselves to the permanent Court of Arbitration, 
 shall sign a special undertaking determining 
 clearly the subject of dispute, the extent of the 
 Arbitral Powers, and the periods to be observed 
 in the constitution of the Arbitral Tribunal and 
 the procedure. Thus they may disagree, even 
 where obviously no question of vital interest or 
 national honour is concerned, and escape from 
 the operation of the Treaty. 
 
 As regards the Anglo-American and Anglo- 
 French Treaties with which I have dealt in a 
 previous chapter,^ they are composite agreements 
 which do not extend the scope of arbitration 
 beyond that of the Anglo-French form, but pro- 
 
 ^ See p. 64, et seq. 
 
TREATIES OF REFERENCE 109 
 
 vide additional methods to cover the cases which 
 are excepted from the scope of that form. 
 
 It is seen that no Great Powers have yet 
 ventured to enlarge the scope of arbitration as 
 between them beyond such cases as, were they 
 between private citizens, would by their nature be 
 within the jurisdiction of the national Law Courts. 
 
 •p ^P ^P 
 
 We come now to cases of Treaties between minor 
 States, many of which have been much bolder 
 than any Great Powers. 
 
 The first of these was that between Argentina 
 and Chile signed on May 28, 1902, embracing all 
 differences without distinction of method. Not 
 only, however, was it the first of its kind, but it 
 is tlie only one in existence between States which 
 are contiguous' and more or less equally balanced, 
 and between which there were grave outstanding 
 questions to settle. It was entered into, more- 
 over, with a view to deliberately putting an end 
 to war between them, and, in fact, for fifteen 
 years these two States have set an example to 
 the rest of the world in showing how neighbouring 
 States can prosper under the benign influence of a 
 pacific arrangement covering all possible cases of 
 conflict. 
 
 Under this Treaty all difficulties without dis- 
 tinction are referred, on the ultimate failure of 
 diplomacy, to the arbitration of the British Govern- 
 
no ADJUSTING INTERNATIONAL DISPUTES 
 
 ment, and, in default of the British, to that of the 
 Swiss Government. 
 
 The same two Repubhcs simultaneously, to 
 mark the sincerity of this pacific demonstration, 
 entered into an agreement, the only one of the 
 kind existing, for the reduction of their respective 
 armaments. The memorandum of agreement on 
 the subject set out that, in order to remove 
 all cause of fear and distrust between the two 
 countries, the two Governments had agreed not 
 to take possession of the warships which they 
 were having built abroad, and also, for the time 
 being, not to make any other acquisitions of 
 warships. They, furthermore, agreed to reduce 
 their respective fleets, according to an arrange- 
 ment establishing a reasonable proportion between 
 them, this agreement to last for five years, unless 
 the Party which wished to increase its armaments 
 should give the other eighteen months' notice in 
 advance. 
 
 In a similarly all-embracing but unratified 
 Treaty of July 25, 1898, between Argentina and 
 Italy, it had been provided that the Arbitral 
 Tribunal should be composed of three judges, two 
 appointed by the Parties, and an umpire chosen 
 by the judges so appointed ; in case of disagree- 
 ment, the umpire to be appointed by an inde- 
 pendent State, and, in case of disagreement as to 
 the State, by the President of the Swiss Con- 
 
TREATIES OF REFERENCE iii 
 
 federation, and, in his default, by the King of 
 Sweden ; arbitrators not to be citizens of either 
 Contracting Party nor residents in the territory 
 of either Party. 
 
 In Europe, Holland and Denmark followed the \ 
 example of Argentina and Chile in the adoption of 
 a Treaty signed on February 12, 1904, submitting 
 all matters without distinction to arbitration. There 
 was, however, a very essential difference between 
 them. While the Argentina-Chile Treaty placed 
 the appointment of the arbitrator outside the 
 power of the Parties themselves, this European 
 Treaty contained no provision as to the appoint- 
 ment or mode of appointment of the arbitrator or 
 arbitrators, and thus left a loophole for escape in 
 case of need. 
 
 Other Treaties between minor States invariably 
 except " national honour." As regards questions 
 involving the national independence, also usually 
 excepted, the Argentina-Chile Treaty draws the 
 line only at questions " affecting the constitution 
 of either State." This probably covers that of 
 the national independence. 
 
 A standing Treaty between Argentina, BoHvia, 
 St. Domingo, Guatemala, Salvador, Mexico, 
 Paraguay, Peru and Uruguay, signed at Mexico on 
 January 29, 1902, the first also of its kind, added 
 a clause declaring that certain matters such as 
 questions arising out of diplomatic privileges, 
 
112 ADJUSTING INTERNATIONAL DISPUTES 
 
 boundaries, navigation rights and the vahdity, 
 interpretation and execution of Treaties, were not 
 to be regarded as involving the national independ- 
 ence or honour, a device which has since been more 
 or less followed in Europe, as will be seen below. 
 
 * * * 
 
 More important, again, than these Treaties 
 between minor States are all-embracing agree- 
 ments between Great Powers and minor States, 
 because, where they exist, the minor State 
 is protected against coercive methods such as 
 " pacific blockades," the seizure of property or of 
 a port belonging to the coerced State, etc. Such 
 a one was the already cited treaty of September 
 i8, 1907, signed, while the second Hague Conference 
 was sitting, by Argentina and Italy, which declares 
 subject to arbitration all matters without dis- 
 tinction, provided (as in the case of the Treaty 
 between Argentina and Chile) they do not affect 
 the constitutional laws of either country. This 
 Treaty, by the way, added a new clause, pro- 
 viding that in any case in which the national 
 Courts have jurisdiction, the Parties have the 
 right to postpone the submission to arbitration 
 till after the national Courts have delivered 
 their final judgment upon it. 
 
 In 1909 (November 20) the Italian Government 
 signed a similarly all-embracing Treaty with 
 Holland, the appointment of the arbitrators, 
 
TREATIES OF REFERENCE 113 
 
 in case the Parties should be unable to agree 
 thereon, to he with the King of Sweden. 
 
 Other Treaties between Great Powers and minor 
 States retain the old formula of the exception of 
 national honour and vital interests. 
 
 % 4c 4: 
 
 The clause contained in the Treaty among the 
 nine American States, signed at Mexico (above 
 referred to), specifically mentioning certain matters 
 as excluded from the operation of the exception 
 of " national honour/' etc., has since been further 
 developed. 
 
 In 1907 the inter-Parliamentary Union drafted 
 a new clause based on this ingenious provision. 
 In the draft prepared by that body the clause in 
 question was retained, with the proviso that it 
 could not be raised in a certain number of cases set 
 out in a list to which the Parties could make such 
 additions as experience dictated or warranted. 
 This system has since then been adopted in a Treaty 
 between France and Denmark (August 9, 1911). 
 
 * * * 
 
 It is seen that, down to the present time, the 
 Great Powers have shown but little inclination to 
 bind themselves, without a loophole for escape, 
 to arbitration as a means of general settlement. 
 The United States method of providing for the 
 appointment of Joint Commissions to deal with non- 
 arbitrable matters seems to be the most practical 
 
TI4 ADJUSTING INTERNATIONAL DISPUTES 
 
 effort which has yet been madetomeet the difficulty 
 of embracing in a Treaty all possible differences, 
 that is to say, even those which have hitherto been 
 regarded as lying outside the scope of such Treaties. 
 As regards Treaties confined to arbitration, 
 the model which is most likely to be followed in 
 the future is the elastic form adopted in that 
 between France and Denmark of 191 1. This, 
 moreover, is the most hkely of the existing forms 
 to be adopted by the next Hague Conference as 
 the common form, a subject on which the pre- 
 vious Conferences have failed to agree. With its 
 list of matters subject to compulsory reference 
 open to extension by any two States v/ithout com- 
 mitting any other State to more than it is prepared 
 to accept, the more courageous States will be 
 enabled to give arbitration a trial, where perhaps 
 the more responsible States might hesitate while 
 it is in a still more or less experimental stage. 
 
 Note 
 
 In the following drafts I have endeavoured to 
 carry out the principles embodied in the Franco- 
 Danish and Salisbury-Olney Treaties in their 
 general application : 
 
 Draft of a General Treaty of Arbitration based on 
 THE Franco-Danish Treaty of August 9, 191 1 
 
 The H.C.P., etc. 
 
 Whereas in Article 38 of the Convention of October 18, 
 
TREATIES OF REFERENCE 115 
 
 1907, for the pacific settlement of international disputes, it is 
 stated that : 
 
 " in questions of a legal nnture, and in the first place 
 in questions relating to the interpretation or application 
 of International Conventions, arbitration is recognised by 
 the Contracting Powers to be the most efficacious and at 
 the same time the most equitable means of settling disputes 
 which have not been settled through diplomatic channels." 
 And that 
 
 " it is, therefore, desirable that in disputes relating 
 to the aforesaid questions, the Contracting Powers should, 
 on the occasion arising, have recourse to arbitration so 
 far as circumstances permit." 
 Declaring once more that such is their feeling and actuated 
 by the desire to give greater practical effect to the above- 
 stated principle. 
 
 Have drawn up the following terms of agreement : 
 1° The High Contracting Parties undertake to submit to 
 the arbitration of the Hague Court, disputes 
 
 (a) arising out of the interpretation of clauses con- 
 tained in all the agreements at present existing between 
 them and which contain an arbitration clause ; 
 
 (b) arising out of the application of the said agree- 
 ments either by reason of the failure to carry out or the 
 imperfect carrying out of their clauses ; 
 
 (c) which are of a legal character, that is to say, 
 susceptible of being settled by pecuniary indemnities. 
 
 2° The High Contracting Parties may, by notice given 
 to the International Bureau created by Article XXII. of the 
 Convention of July 29, 1899, jointly or severally make such 
 additions as they may deem fit to the preceding Article. 
 
 The following Powers, etc. : 
 
 Undertake to submit to the arbitration of the Hague 
 Court disputes which shall not have been settled through 
 diplomatic channels and which relate to : 
 
 Fisheries, 
 
 Submarine cables. 
 
ii6 ADJUSTING INTERNATIONAL DISPUTES 
 
 Sanitary questions, 
 Frontier incidents, 
 
 Collisions between public ships and foreign private 
 ships, etc. 
 3° Any matter belonging to one of the above categories 
 is arbitrable, 
 
 (a) when two Contracting Parties are directly in- 
 volved ; 
 
 (b) when one of the Parties is a Signatory State, and 
 the other an individual or individuals belonging to the 
 Signatory State which proposes arbitration. 
 
 4° In the case of a dispute which comes within the juris- 
 diction of the national judicial authorities as established by 
 territorial laws, the Contracting Parties are entitled to refrain 
 from submitting the dispute to arbitral procedure until the 
 competent national jurisdiction shall have given its final 
 decision. 1 
 
 When a case has been thus decided, the defendant State 
 shall not be entitled to raise any question of prescription 
 so long as the case has not left diplomatic channels, and, in 
 that case, prescription shall run only from the time when 
 the private Party shall have received written notice that the 
 Government by which it was represented has withdrawn from 
 the case. 
 
 5° The undertakings contained in the present Treaty do 
 not imply any liability to submit to the Hague Court disputes 
 of a local nature that can best be settled by local arbitration. 
 Nevertheless, a complete copy of all deeds and minutes of 
 any arbitration held elsewhere than at the Hague Court shall 
 be lodged in the archives of the said Court. 
 
 6° The appointment of the arbitrator or arbitrators, and 
 the settling of all details of procedure, shall be made in accord- 
 ance with Articles XLV. and LIT of the Convention of 
 October i8, 1907, above mentioned. 
 
 7° In case of any dispute which a Signatory Power 
 should consider not susceptible of being submitted to arbitra- 
 tion, the Signatory Powers undertake so far as possible to 
 
 1 From Article VI. of the Italo-Dutch Treaty of November 30, 1909. 
 
TREATIES OF REFERENCE 117 
 
 give effect to Article VIII. of the Convention of October 18, 
 1907, by each Party to the dispute appointing a mediator. 
 
 8° Any Signatory Power may withdraw from the present 
 Treaty by giving to the above-mentioned International 
 Bureau at the Hague notification to that effect one year in 
 advance. 
 
 9° The International Bureau at the Hague is charged 
 with the immediate transmission to the Signatory Powers of 
 all communications which may be sent to it on the subject 
 of the present Treaty. 
 
 In faith whereof, etc. etc. 
 
 Draft of a Treaty to include Vital Interests and 
 National Honour, based on the Anglo-American 
 Treaty of 1897 and the Hague Peace Provisions. 
 
 H.M. . . . etc. etc. 
 
 Animated by the desire to further extend the application 
 of the principles agreed to in the Convention for the pacific 
 settlement of international disputes of July 29, 1899, and to 
 give to them the fullest practical effect which existing circum- 
 stances will permit ; 
 
 Trusting that, in case such further extension should prove 
 satisfactory after a period of experience, it will be continued 
 for a further period, and be followed by any further extension 
 which may seem feasible ; 
 
 Desiring to conclude a Convention to this effect, have 
 appointed as their Plenipotentiaries, etc. etc. etc., who have 
 agreed as follows : 
 
 1. The High Contracting Parties undertake to submit to 
 arbitration by the Hague Court all differences not affecting 
 the internal laws or institutions or independence or territorial 
 integrity of any High Contracting Party which may arise 
 between them, and which may not have been settled by 
 diplomacy, in accordance with the terms and conditions set 
 out in the next following Articles. 
 
 2. For matters of a judicial character, or relating to the 
 construction (interpretation) of Treaties, the Court shall be 
 
ii8 ADJUSTINCx INTERNATIONAL DISPUTES 
 
 composed in accordance with Article XXXII. of the said 
 Convention.^ 
 
 3. If in the judgment of one or other of the High Con- 
 tracting Parties a question may appear to involve a vital 
 interest or the national honour, or to be of too momentous 
 a character to be submitted to decision under Article XXXII. 
 of the said Convention- — 
 
 {a) The Court shall be composed of judges appointed by 
 the High Contracting Parties without an umpire, and in such 
 number, not exceeding three each, as either Party may demand. 
 The judges may be nationals of the State appointing them. 
 
 {b) The award will not finally close the dispute unless the 
 judges, if two, are agreed, or, if four, one of two, or, if six, two 
 of three of either side concur with those of the other side in 
 their decision. 
 
 (c) Where a case is submitted to two judges only, and 
 they do not agree, or to four who are equally divided, or to 
 six who are equally divided, or of whom only one concurs with 
 the other side, or where the judges take more than two views, 
 or in any case whatsoever in which the majority provided for 
 in subsection {b) is not obtained, the judges, nevertheless, 
 give their judgments separately and in writing, in accordance 
 with Article LII.2 of the said Convention. These judgments 
 
 ^ Subject to an alteration to reduce the number of arbitrators to 
 be appointed under the 3rd section of Article XXXII., which is as 
 follows : Article XXXII. — The duties of arbitrator may be conferred 
 on one arbitrator alone or on several arbitrators selected by the 
 Parties as they please, or chosen by them from the members of the 
 Permanent Court of Arbitration established by the present Act. 
 Faihng the constitution of the Tribunal by direct agreement between 
 the Parties, the following course shall be pursued : Each Party 
 appoints two arbitrators, and these latter together choose an umpire. 
 In case of equal voting, the choice of the umpire is entrusted to a 
 third Power, selected by the Parties by common accord. If no agree- 
 ment is arrived at on this subject, each Party selects a different 
 Power, and the choice of the umpire is made in concert by the Powers 
 thus selected. 
 
 2 Art. LII. — The award given by a majority of votes is accom- 
 panied by a statement of reasons. It is drawn up in writing and 
 signed by each member of the Tribunal. Those members who are 
 in the minority may record their dissent when signing. 
 
TREATIES OF REFERENCE 119 
 
 shall then be submitted to the mediation of a friendly Power 
 to be chosen by the Parties ^ ; in case of difference in such 
 choice, to the President of the Swiss Confederation. The 
 mediator shall appoint a jurist to examine and report on the 
 judgments, and this report shall be submitted to the judges 
 to enable them to reconsider their decisions. The jurist who 
 shall have made the report shall be present at the sittings 
 for such reconsideration, with power to deliberate but not to 
 vote. The period for which the mandate conferred on the 
 mediator shall be given shall be thirty days, as provided by 
 Article VIII. ^ of the said Convention. 
 
 (d) If no agreement shall be arrived at after submission 
 and discussion of the mediator's report, the International 
 Bureau ^ at the Hague shall immediately on the close of the 
 
 1 Art. III. — Independently of this recourse, the Signatory Powers 
 recommend that one or more Powers, strangers to the dispute, should, 
 on their own initiative and so far as circumstances may allow, offer 
 their good offices or mediation to the States at variance. Powers, 
 strangers to the dispute, have the right to offer good offices or mediation 
 even during the course of hostilities. The exercise of this right can 
 never be regarded by one or the other of the Parties in conflict as 
 an unfriendly act. 
 
 2 Art. VIII. — The Signatory Powers are agreed in recommend- 
 ing the application, when circumstances allow, of special mediation 
 in the following form : In case of a serious difference endangering 
 the peace, the States at variance choose respectively a Power, to 
 whom they entrust the mission of entering into direct communication 
 vfith the Power chosen on the other side, with the object of preventing 
 the rupture of pacific relations. For the period of this mandate, 
 the term of which, unless otherwise stipulated, cannot exceed thirty 
 days, the States in conflict cease from all direct communication on 
 the subject of the dispute, which is regarded as referred exclusively 
 to the mediating Powers, who must use their best efforts to settle it. 
 In case of a definite rupture of pacific relations, these Powers are 
 charged with the joint task of taking advantage of any opportunity 
 to restore peace. 
 
 » Art. XXII.-- -.\n International Bureau estabUshed at the Hague 
 serves as record office for the Court. This Bureau is the channel for 
 communication relative to the meetings of the Court. It has the 
 custody of the archives, and conducts all the administrative business. 
 The Signatory Powers undertake to communicate to the International 
 Bureau at the Hague a duly certified copy of any conditions of 
 arbitration arrived at between them, and of any award concerning 
 
120 ADJUSTING INTERNATIONAL DISPUTES 
 
 final sitting have the protocol of submission, the respective 
 judgments, the report thereon, and the respective final de- 
 cisions printed and made public in accordance with Article 
 LIII.i of the said Convention. 
 
 4. The High Contracting Parties undertake to give every 
 facility in their power to the judges and the mediator to 
 ascertain the facts, and to do nothing pending arbitration or 
 mediation which may in any way alter the situation of the 
 matter at issue. 
 
 5. This Convention shall be binding on the High Con- 
 tracting Parties for a period of ten years, and shall ran on 
 thereafter for further periods of ten years, unless notice of 
 its termination be given by any Party, in which case it shall 
 continue to be binding only as among the other Parties. 
 Notice of one year shall be necessary to enable any Party to 
 withdraw from it. 
 
 In faith whereof, etc. etc. 
 
 them delivered by special Tribunals. They undertake also to com- 
 municate to the Bureau the laws, regulations and documents eventually 
 showing the execution of the awards given by the Court. 
 
 ^ Art. LIII. — The award is read out at a public meeting of the 
 Tribunal, the agents and counsel of the Parties being present or duly 
 summoned to attend. 
 
CHAPTER X 
 
 THE DREAD ALTERNATIVE AND THE FUTURE 
 
 Why, ask the optimists, cannot all States, forming 
 as they do a sort of community for so many 
 purposes, settle all their differences by judicial 
 methods as the individuals composing them are 
 wont to do ? Why do they not follow the example 
 of Argentina and Chile and establish a proportion 
 between them for armaments and agree to adopt 
 arbitration for the settlement of all differences to 
 come ? It was just to give effect to some such 
 combined scheme that the Czar called the first 
 of the Hague Conferences. At this first Conference 
 the Russian Government submitted a proposal, on 
 the one hand, to maintain the status quo in arma- 
 ments, i.e., not to add to them during some period 
 to be fixed, and, on the other, as we have seen, to 
 submit cases not involving "vital interests" or 
 " national honour " to arbitration. 
 
 3|C 3f» n* 
 
 First, as regards the proposed generalisation of 
 arbitration as a method of avoiding armed conflicts, 
 States still hesitate to include in an arbitration 
 
122 ADJUSTING INTERNATIONAL DISPUTES 
 
 Treaty all differences without exception. The 
 reason of this distrust is no further afield than 
 that, where decisions between conflicting claims are 
 involved, there are no rules except those of justice 
 which arbitrators can ostensibly apply, and that 
 these rules of justice fall short in many cases of 
 international differences. Thus, by what rules 
 could a case of preponderating interest devoid of 
 juridical basis be decided, such, for instance, as 
 where disorder in a neighbouring country is, or is 
 believed or is alleged to be, a cause of disorder on 
 one's own territory, a case alleged in most recent 
 acts of aggression against weak native States in 
 Asia ? The same difficulty arises where a claim is 
 made to territory belonging to a country which has 
 no surplus population with which to people it. The 
 same absence of juridical basis excluded arbitra- 
 tion from recent controversies between Germany 
 and France in Morocco, between Germany and 
 Portugal in Africa, between Japan and Russia in 
 Western Siberia, and may arise in other well- 
 known cases. It arises where rectifications of 
 frontier with a view to complying with a reasonable 
 geographical situation are concerned, as between 
 France and Germany in Europe, or where there are 
 racial considerations, such as between Italy and 
 Austria-Hungary in connection with the Italian 
 population of parts of that Empire. More recent 
 instances are those of the Turco-Italian and Balkan 
 
THE DREAD ALTERNATIVE 123 
 
 Wars, which arose out of demands none of which 
 could be decided in accordance with any legal 
 principles applicable to conflicting rights as such. 
 The question out of which the present conflict 
 arose is different. The Serbian reply to the 
 Austro-Hungarian ultimatum reserved a point 
 which might have been solved by arbitration, 
 or, at any rate, was of such a character that 
 the British Foreign Secretary, Sir Edward Grey, 
 suggested arbitration as a method of dealing 
 with it. That the proposal was not accepted 
 is a fact the significance of which will no doubt 
 appear when all the facts are known. It is 
 beyond the scope of this book to do more than 
 record this deliberate refusal to agree to arbitra- 
 tion where war was the only alternative. 
 
 4e 4( ^ 
 
 The negotiators of the Treaty between 
 Argentina and Chile evidently had the difficulty 
 of settlement by arbitration of all questions in 
 mind, when they inserted in it a provision (Art. 8) 
 prescribing that the arbitrator shall decide accord- 
 ing to the principles of International Law unless 
 the terms of submission authorised him to act as 
 " amiable compositeur," or implied the application 
 of special rules. They evidently thought that the 
 two States might have to authorise the arbitrator 
 to take expediency or other extra-judicial con- 
 siderations into account. 
 
124 ADJUSTING INTERNATIONAL DISPUTES 
 
 This example has never been followed, and as 
 between the United States and Great Britain 
 and the United States and France, as we have 
 seen, the system adopted for cases of the character 
 in question is a conciliatory method as distin- 
 guished from arbitration. 
 
 Hi :!: H: 
 
 States are, thus, left confronted for a class of 
 cases which are just the kind most difhcult to 
 settle amicably without any method^ of adjust- 
 ment, except conciliation between themselves or 
 the mediation of independent Powers. And, as 
 Foreign Offices frankly admit, that it is the 
 absence of considerations of justice in certain 
 cases which prevents judicial solution, inter- 
 national distrust has always been painfully 
 present in the policy of practically all States 
 having rival or even only parallel interests. Out 
 of this distrust sprang a corresponding rivalry of 
 armaments. Hence the difficulty of restricting 
 them, and therefore the paradox of there having 
 been, so far from any tendency to adjust them in 
 inverse proportion to the development of methods 
 for dispensing with need of them, that their in- 
 crease has outraced all efforts to avoid recourse 
 to force and violence. 
 
 He :ic 4c 
 
 Many persons found some sort of consolation 
 for this fatal paradox in ascribing to war a virtue 
 
THE DREAD ALTERNATIVE 125 
 
 in itself. This was the view of the famous 
 Count von Moltke, who, when approached by 
 a delegation of the Institute of International 
 Law, headed by Professor Bluntschli, de- 
 clared that the world would be ugly without 
 war ! 
 
 The German philosopher Nietzsche has said 
 perhaps the most eloquent thing ever said 
 in its favour. "It is mere illusion and pretty 
 sentiment," he said, ** to expect much (even 
 anything at all) from mankind if it forgets how 
 to make war. As yet no means are known which 
 call so much into action as a great war : that 
 rough energy born of the camp, that deep imper- 
 sonality born of hatred, that conscience born of 
 murder and cold-bloodedness, that fervour born 
 of effort in the annihilation of the enemy, that 
 proud indifference to loss, to one's own existence, 
 to that of one's fellows, that earthquake-like 
 soul-shaking which a people needs when it is 
 losing its vitality." ^ 
 
 Whether this is pessimism or optimism, it 
 reminds one singularly of Voltaire's Pangloss, 
 and we might on similar grounds find consolation 
 for the loss of the fifteen hundred victims of the 
 Titanic disaster, for the destruction wrought by 
 the earthquakes of Cahfornia, Martinique and 
 Sicily, and be encouraged to engineer railway 
 
 ^ Menschliches-Allzumenschliches, No. 477. 
 
126 ADJUSTING INTERNATIONAL DISPUTES 
 
 accidents and mining explosions as a matter of 
 policy to keep national vitality from degenerating ! 
 It is pleasant to contrast this somewhat 
 neurotic joy of Nietzsche with the matter-of-fact 
 reflections of the late W. E. H. Lecky : " War," 
 he says, " is not, and never can be, a mere passion- 
 less discharge of a painful duty. It is in its 
 essence, and it is a main condition of its success, 
 to kindle into fierce exercise among great masses 
 of men the destructive and combative passions — 
 passions as fierce and as malevolent as that with 
 which the hounds hunt the fox to its death or 
 the tiger springs upon its prey. Destruction is one 
 of its chief ends. Deception is one of its chief 
 means, and one of the great arts of skilful general- 
 ship is to deceive in order to destroy. Whatever 
 other elements maj^ mingle with and dignify war, 
 this at least is never absent ; and however re- 
 luctantly men may enter into war, however 
 conscientiously they may endeavour to avoid it, 
 they must know that when the scene of carnage 
 has once opened, these things must be not only 
 accepted and condoned, but stimulated, en- 
 couraged and applauded. It would be difficult 
 to conceive a disposition more remote from the 
 morals of ordinary life, not to speak of Christian 
 ideals, than that with which the soldiers, animated 
 with the fire and passion that lead to victory, 
 rush forward to bayonet the foe. ... It is allow- 
 
THE DREAD ALTERNATIVE 127 
 
 able to deceive an enemy by fabricated dispatclies 
 purporting to come from his own side, by tamper- 
 ing with telegraph messages, by spreading false 
 intelligence in newspapers, by sending pretended 
 spies and deserters to give him untrue reports of 
 the numbers and movements of the troops, by 
 employing false signals to lure him into an 
 ambuscade." ^ 
 
 H/i Hi: * 
 
 Nor can one read accounts by eye-witnesses of 
 recent warfare without being struck by the small 
 number of the exceptions to its unqualified besti- 
 ality. It has been suggested that the nervous 
 tension among combatants and even among non- 
 combatants may produce a higher state of mental 
 endowment in subsequent generations. Such an 
 abnormal consequence would need the fullest 
 substantiation to obtain any measure of credence. 
 On the other hand, if progressive development 
 by survival of the fittest has any sense at all, war 
 among nations which recruit their armies from the 
 physically fittest of their young men must favour 
 the survival of the least fit. It is even very 
 doubtful whether the unwounded survivors them- 
 selves benefit either morally or physically by actual 
 warfare. There is at any rate no e\ddence of any 
 such effect. 
 
 Some years ago Field-Marshal von Hahnke, 
 
 1 Map of Life, 1902, pp. 92-7. 
 
128 ADJUSTING INTERNATIONAL DISPUTES 
 
 at some function in Berlin, had me presented to 
 him. He said he wanted to tell me that I was 
 mistaken in having implied in some speech that 
 the German war-party was mainly recruited from 
 German officers. "If an officer professes to long 
 for war, beware of him," he said ; " he must be 
 as insane as an engine-driver who longs for a 
 railway accident ! When the accident of war 
 occurs, officers and men do their duty man- 
 fully and willingly, but, at the best, war is a 
 fiendish thing, and those who have seen it can 
 never wish to see it again." He had taken part 
 in three wars and had held all the highest offices 
 in the service of the monarchs he served. 
 
 * ♦ iK 
 
 Then again, as regards those who admit the 
 stupidit}^ of war but invoke the maxim, si vis pacem 
 para helium, I fail to understand how peace can be 
 preserved best by threatening each other with 
 war, by rivalry in the increase of war expenditure, 
 by exciting pubhc opinion about the evil intentions 
 of neighbouring States and keeping whole nations 
 under arms, ready at a moment's notice to fly 
 at each other's throats. Reductio ad absurdum 
 as this reads, whenever we see the maxim quoted, 
 this is the situation in support of which it is 
 appealed to. It never had a more significant 
 answer than the present war, which was the out- 
 come of a race in armaments and probably of the 
 
THE DREAD ALTERNATIVE 129 
 
 belief of one, if not more, of the racing Powers 
 that preparedness for war had no sense except 
 that of waging it as soon as the circumstances 
 were favourable. And yet, I repeat, in spite of 
 all the arguments against war and against rivalry 
 in outdoing each other in preparation for it, on 
 the one hand, and, on the other, of all the efforts 
 which were being made by entering into standing 
 Treaties of Arbitration and by creating a peace 
 jurisdiction to dispense with the arbitrament of 
 brute force, wars, instead of becoming less frequent 
 became more so, and armaments, instead of 
 abating, increased in spite of the ever-broadening 
 area of intelligence and knowledge among the 
 different civilised peoples of the world. 
 
 * * * 
 
 Other reasons besides distrust among States 
 of each other's intentions may, however, account 
 for this anomaly of contemporary statecraft. 
 
 When a fleet is on the move, its pace is dictated 
 by the speed of the slowest of the ships com- 
 posing it. Is not progress in the intercommunion 
 of States, in the same way, to some extent dictated 
 by the pace of the slowest of them ? Assuming 
 that the most advanced State is that in which 
 self-government and popular responsibility have 
 reached their highest effective development, the 
 slowest would be that State in which autocratic 
 government has parted least with its privileges. 
 9 
 
130 ADJUSTING INTERNATIONAL DISPUTES 
 
 As autocracies generally rely on the support of a 
 military caste and use war as a political method 
 of self-preservation, it is necessarily autocracies 
 which play the part of the slower vessel. These 
 autocracies, while they obstruct the growth of 
 popular government at home, consciously or 
 unconsciously, in a corresponding proportion 
 force the pace of the growth of armaments in 
 other countries which are forced for self-defence 
 to be prepared against possible aggression by 
 States whose action may be dictated by domestic 
 rather than foreign considerations. This was the 
 case in Europe. A State whose liberal institu- 
 tions had not yet reached a determining influence 
 in decisions for or against war, which possessed 
 an immense army and a population capable of 
 increasing it beyond the capabilities of any other 
 European country, forced her Western neighbour, 
 which had a population considerably smaller but 
 socially and politically more highly developed, and 
 a Government not antagonistic to the progress of 
 liberal ideas, to take into consideration the possi- 
 bility of war for other than national necessities 
 and to make up for its more contracted resources 
 in population by the higher development and 
 quality of its methods. This again affected 
 another neighbour farther West with a still less 
 rapidly growing population and still more ad- 
 vanced political institutions, and ought, logically, 
 
THE DREAD ALTERNATIVE 131 
 
 to have led it to resort in a still higher degree to 
 mechanical methods for the compensation of less 
 favourable natural conditions ! 
 
 * « * 
 
 Yet, it was the ex-Czar who called the first 
 Hague Conference for the deliberate purpose of 
 relaxing this fatal growth of armaments and 
 coming to some understanding which would render 
 a diminution of the then existing ruinous war 
 expenditure possible. 
 
 No more eloquent or convincing statement of 
 the folly of the situation in 1898 was ever com- 
 pressed into so short a space than the communica- 
 tion on behalf of the Czar to the Foreign Powers 
 concerning this proposal. In it he said : 
 
 Being convinced that this high aim agrees with the most 
 essential interests and legitimate aspirations of all the Powers, 
 the Imperial Government considers the present moment a 
 very favourable one for seeking, through international dis- 
 cussion, the most effective means of assuring to all peoples 
 the blessings of real and lasting peace, and above all, of 
 limiting the progressive development of existing arma- 
 ments. . . . The ever-increasing financial burdens strike at 
 the root of public prosperity. The physical and intellectual 
 forces of the people, labour and capital are diverted for the 
 greater part from their natural application and wasted un- 
 productively. Hundreds of millions are spent in acquiring 
 terrible engines of destruction, which are regarded to-day as 
 the latest inventions of science, but are destined to-morrow 
 to be rendered obsolete by some new discovery. National 
 culture, economic progress and the production of wealth 
 are either paralysed or developed in a wrong direction. There- 
 fore the more the armaments of each Power increase, the less 
 
132 ADJUSTING INTERNATIONAL DISPUTES 
 
 they answer to the objects aimed at by the Governments. 
 Economic disturbances are caused in great measure by this 
 system of excessive armaments ; and the constant danger 
 involved in this accumulation of war material renders the 
 armed peace of to-day a crushing burden more and more 
 difficult for nations to bear. It consequently seems evident 
 that if this situation be prolonged it will inevitably result 
 in the very disaster it sought to avoid, and the thought of 
 the horrors of which makes every humane mind shudder. 
 It is the supreme duty, therefore, of all States to place some 
 limit on these increasing armaments, and find some means of 
 averting the calamities which threaten the whole world." ^ 
 
 Two Peace Conferences have been held at the 
 Hague, but the main object for which the Czar 
 initiated them has on both occasions been 
 negatived. On the later occasion (1907) this was 
 done by consent of the leading Powers to avoid 
 a break-up of the Conference and the wrecking 
 
 ^ Incidentally I call the reader's attention to the statement in 
 this document, that the Czar was entirely in favour of the cause of 
 limitation of armaments. It is believed to be a fact that the proposal 
 of the Conference was the outcome of the Czar's personal attachment 
 to peace, and the fact that war five years later broke out between 
 Russia and Japan does not belie this, as the following incident bears 
 witness : 
 
 At a dinner at which I was present at New York in January 1904, 
 a month before the outbreak of the war, a telegram was received 
 from Washington to say that a cable had been received from the 
 American Ambassador in St. Petersburg, saying that the Czar had 
 sent a conciliatory message in reply to the Japanese Note. I remember 
 the words of the telegram — they were imprinted in everybody's mind 
 — " There will be no war." Wliat became of the message ? 
 
 DifEerent explanations have been given of why events did not 
 bear out the Czar's personal assurance to the American Ambassador. 
 If, in fact, the Czar's conciliatory message did not reach Japan, no 
 explanation ever given has cast any reflection on the Czar's personal 
 good faith. 
 
THE DREAD ALTERNATIVE 133 
 
 of the valuable results in other matters achieved 
 by it. 
 
 And in fact after 1899 armaments steadily 
 increased in the proportion for Russia herself of 
 over 50 per cent., for Germany of as much, and 
 for France of about 30 to 40 per cent. Germany 
 and Russia in war expenditure at the outbreak of 
 the war just about balanced each other. France 
 and Russia combined, however, spent some 30 
 per cent, more on armaments than Germany and 
 Austria-Hungary combined, and, even adding 
 Italy, the whole Triple Alliance spent on armaments 
 considerably less than the Dual Alliance. The 
 proportion of expenditure was regarded, we now 
 know wrongly, as a closer approximation to the 
 relative strength of nations than numerical assess- 
 ments, however constituted and subdivided. 
 
 In view of this situation, it is difficult to see in 
 what way a conference of the Powers in general 
 could have dealt with the proportion of armaments 
 existing between the Triple and the Dual Alliances. 
 The question of the progressive reduction of 
 armaments is obviously not one for the con- 
 sideration of States in general, but is necessarily 
 inherent to the relations of contiguous States 
 with one another. 
 
 V n* *F 
 
 If, in spite of the Czar's proposals, wars have 
 been exceptionally frequent since 1899, this is no 
 
134 ADJUSTING INTERNATIONAL DISPUTES 
 
 proof of the folly of the effort. The suggestion of 
 a proportionate adjustment cannot fail at the 
 conclusion of the present war to receive considera- 
 tion at the hands of the Powers concerned, though 
 this may be mainly because the cost will by far 
 exceed the limit of the taxation available to meet 
 it. 
 
 Meanwhile, the cause of peace can obviously 
 be best advanced by the revival of such a 
 European Concert as will ensure co-operation 
 among States on a similar level of civilisation, for 
 which war entails similarly ruinous consequences 
 and the pacific settlement of disputes a similarly 
 material gain. And in any case the Czar's fateful 
 words of 1898 as to the consequences of competi- 
 tion in armaments have been so amply realised, 
 that it will be difficult to convince an age chastened 
 by experience that jdevelopment of pacific methods 
 in the settlement of international difficulties is 
 ^i * not the highest interest of mankind.^ 
 
APPENDICES 
 I 
 
 HAGUE CONVENTION FOR THE PACIFIC SETTLE- 
 MENT OF INTERNATIONAL DISPUTES (WITH 
 DIFFERENCES BETWEEN THE TEXTS OF 1899 
 AND 1907) 
 
 {The passages between square brackets are the parts of the Con- 
 vention of 1899 which have been suppressed. Those in 
 italics are the additions and alterations made by the Con- 
 vention 0/1907) 
 
 {Names of High Contracting Parties) 
 
 Animated by a strong desire to concert for the maintenance 
 of general peace ; 
 
 Resolved to second by their best efforts the friendly 
 settlement of international disputes ; 
 
 Recognising the solidarity which unites the members of 
 the society of civilised nations ; 
 
 Desirous of extending the empire of law, and of strengthen- 
 ing the appreciation of international justice ; 
 
 Convinced that the permanent institution of a Court of 
 Arbitration, accessible to all, in the midst of the independent 
 Powers, will contribute effectively to this result ; 
 
 Having regard to the advantages attending the general 
 and regular organisation of arbitral procedure ; 
 
 Sharing the opinion of the august Initiator of the Inter- 
 national Peace Conference that it is expedient to record in 
 
 an International agreement the principles of equity and right 
 
 13s 
 
136 ADJUSTING INTERNATIONAL DISPUTES 
 
 on which are based the security of States and the welfare 
 of peoples ; 
 
 Desirous for this purpose of better assuring the practical 
 working of Commissions of Inquiry and Courts of Arbitration 
 and to facilitate recourse to arbitration when matters in variance 
 are concerned which can be dealt with by a summary procedure ; 
 
 Have thought it necessary to revise on certain points and to 
 complete the work of the first Peace Conference for the pacific 
 settlement of international disputes. 
 
 [Being desirous of concluding a Convention to this effect, 
 have appointed as their Plenipotentiaries : etc. etc. etc.] 
 
 The High Contracting Powers have resolved to enter into a 
 new Convention for this purpose, and have named as their 
 Plenipotentiaries. 
 
 [Names and Description of the Plenipotentiaries) 
 
 Who, after [communication of] having deposited their full 
 powers, found in good and due form, have agreed [on the 
 following provisions] as follows : 
 
 Title I. — On the Maintenance of General Peace 
 
 Art. I. — With a view to obviating, as far as possible, 
 recourse to force in the relations between States, the [Signatory] 
 Contracting Powers agree to use their best efforts to ensure 
 the pacific settlement of international differences. 
 
 Title II. — On Good Offices and Mediation 
 
 Art. II. — In case of serious disagreement or conflict, 
 before an appeal to arms, the [Signatory] Contracting Powers 
 agree to have recourse, as far as circumstances allow, to the 
 good offices or mediation of one or more friendly Powers. 
 
 Art. III.— Independently of this recourse, the [Signatory] 
 Contracting Powers consider it expedient and desirable that 
 one or more Powers, strangers to the dispute, should, on 
 their own initiative, and as far as circumstances may allow, 
 offer their good offices or mediation to the States at variance. 
 
APPENDIX I 137 
 
 Powers, strangers to the dispute, liave the right to offer 
 good offices or mediation, even during the course of hostilities. 
 
 The exercise of this right can never be regarded by one 
 or the other of the Parties in conflict as an unfriendly act. 
 
 Art. IV. — The part of the mediator consists in reconciling 
 the opposing claims and appeasing the feelings of resentment 
 which may have arisen between the States at variance. 
 
 Art. V. — The functions of the mediator are at an end 
 when once it is declared, either by one of the Parties to the 
 dispute, or by the mediator himself, that the means of recon- 
 ciliation proposed by him are not accepted. 
 
 Art. VI. — Good offices and mediation, either at the request 
 of the Parties at variance, or on the initiative of Powers, 
 strangers to the dispute, have exclusively the character of 
 advice, and never have binding force. 
 
 Art. VII. — ^The acceptance of mediation cannot, unless 
 there be an agreement to the contrary, have the effect of 
 interrupting, delaying or hindering mobilisation or other 
 measures of preparation for war. 
 
 If mediation occurs after the commencement of hostilities, 
 it causes no interruption to the military operations in progress, 
 unless there be an agreement to the contrary. 
 
 Art. VIII. — ^The [Signatory] Contracting Powers are 
 agreed in recommending the application, when circumstances 
 allow, of special mediation in the following form : 
 
 In case of a serious difference endangering the peace, the 
 States at variance choose respectively a Power, to whom 
 they entrust the mission of entering into direct communica- 
 tion with the Power chosen on the other side, with the object 
 of preventing the rupture of pacific relations. 
 
 For the period of this mandate, the term of which, unless 
 otherwise stipulated, cannot exceed thirty days, the States 
 in conflict cease from all direct communication on the subject 
 of the dispute, which is regarded as referred exclusively to the 
 mediating Powers, who must use their best efforts to settle it. 
 
 In case of a definite rupture of pacific relations, these 
 Powers are charged with the joint task of taking advantage 
 of any opportunity to restore peace. 
 
138 ADJUSTING INTERNATIONAL DISPUTES 
 
 Title III. — On International Commissions of Inquiry 
 
 Art. IX. — In differences of an international nature in- 
 volving neither honour nor vital interests, and arising from 
 a difference of opinion on points of fact, the [Signatory] 
 Contracting Powers recommend that the Parties, who have 
 not been able to come to an agreement by means of diplomacy, 
 should, as far as circumstances allow, institute an Inter- 
 national Commission of Inquiry, to facilitate a solution of 
 these differences by elucidating the facts by means of an 
 impartial and conscientious investigation. 
 
 [Art. X. — The International Commissions of Inquiry are 
 constituted by special agreement between the Parties in 
 conflict. 
 
 The Convention for an inquiry defines the facts to be 
 examined and the extent of the Commissioners' powers. 
 
 It settles the procedure. 
 
 On the inquiry both sides must be heard. 
 
 The form and the periods to be observed, if not stated in 
 the Inquiry Convention, are decided by the Commission itself.] 
 
 [Art. XI. — The International Commissions of Inquiry are 
 formed, unless otherwise stipulated, in the manner fixed by 
 Article XXXII. of the present Convention.] 
 
 [Art. XII. — ^The Powers in dispute engage to supply the 
 International Commission of Inquiry, as fully as they may 
 think possible, with all means and facilities necessary to 
 enable it to be completely acquainted with, and to accurately 
 understand, the facts in question.] 
 
 [Art. XIII. — The International Commission of Inquiry 
 communicates its report to the conflicting Powers, signed by 
 all the members of the Commission.] 
 
 [Art. XIV. — The Report of the International Commission 
 of Inquiry is limited to a statement of facts, and has in no 
 way the character of an Arbitral Award. It leaves the con- 
 flicting Powers entire freedom as to the effect to be given to 
 this statement.] 
 
 Art. X. — International Commissions of Inquiry are con- 
 stituted by a special Convention between the Parties in conflict. 
 
APPENDIX I 139 
 
 The Convention of Inquiry states precisely the facts to he 
 examined ; it determines the mode of and period for the con- 
 stitution of the Commission, and the extent of the powers of the 
 commissioners. 
 
 It also states, should the case arise, the place where the Com- 
 mission shall sit, and the power to change the place, the language 
 which it shall use, and those the use of which shall he authorised, 
 as well as the date at which each Party shall lodge its statement of 
 facts and, in general, all the conditions to which the Parties have 
 agreed. 
 
 If the Parties consider it necessary to name assessors, the Con- 
 vention of Inquiry determines how they shall he chosen and the 
 extent of their powers. 
 
 Art. XI. — // the Convention of Inquiry has not appointed 
 the place of meeting of the Commission, the latter shall sit at 
 the Hague. 
 
 Once the place has been fixed, it cannot he changed hy the 
 Commission without the consent of the Parties. 
 
 If the Convention of Inquiry has not determined what 
 languages are to he employed, this shall be determined hy the 
 Commission. 
 
 Art. XII. — Unless there is a stipulation to the contrary, the 
 Commissions of Inquiry shall he formed as specified in Articles 
 XLV . and LVII. of this Convention. 
 
 Art. XIII. — In case of death, resignation or prevention 
 from any cause whatsoever, of one of the commissioners, or 
 contingently of one of the assessors, he shall he replaced in the 
 same manner as he was appointed. 
 
 Art. XIV. — The Parties have the right to appoint special 
 agents in connection with the Commission of Inquiry, whose duty 
 it is to represent them and serve as intermediaries between them 
 and the Commission. 
 
 They are, in addition, entitled to instruct counsel or advocates 
 appointed hy the Parties, to state and argue the case before the 
 Commission. 
 
 Art. XV. — The International Bureau of the permanent 
 Court of Arbitration shall serve as a Registry for the Commissions 
 which shall sit at the Hague, and shall place its ofiices and 
 
140 ADJUSTING INTERNATIONAL DISPUTES 
 
 organisation at the disposal of the Contracting Parties for the 
 operations of the Commission of Inquiry. 
 
 Art. XVI. — // the Commission sits elsewhere than at the 
 Hague, it appoints a General Secretary whose offices shall serve 
 as a Registry. 
 
 The Registry has charge, subject to the President's authority, 
 of the material organisation of the sittings of the Commission, 
 the drawing up of the minutes, and during the inquiry the 
 keeping of the archives ivhich shall afterwards be handed over to 
 the International Bureau at the Hague. 
 
 Art. XVII. — In order to facilitate the institution and the 
 working of the Commissions of Inquiry, the Contracting Powers 
 recommend the following rules which shall he applicable to the 
 procedure of inquiry, in so far as the Parties do not adopt other 
 rules. 
 
 Art. XVIII. ■ — The Commission shall regulate the details of 
 procedure which have not been provided for by the special Con- 
 vention of Inquiry, or in the present Convention, and shall fulfil 
 all the formalities relating to the taking of evidence. 
 
 Art. XIX.- — The inquiry shall take place in the presence of 
 both Parties. 
 
 On dates fixed beforehand, each Party shall communicate to 
 the Commission and to the other Party the statements of fact, if 
 necessary, and in all cases the records, papers, and documents 
 which it considers useful for ascertaining the facts, as well as 
 the list of witnesses and experts it desires to be heard. 
 
 Art. XX. ^ — The Commission may, with the consent of the 
 Parties, temporarily move to the spot where it considers it useful 
 to resort to this method of obtaining information, or it may 
 delegate one or more of its members to go there. It must obtain 
 the authorisation of the State on whose territory it proposes to 
 obtain such information. 
 
 Art. XXI. — All verifications on the spot and visits to places 
 shall be made in the presence of the agents and counsel of the 
 Parties or after they have been duly cited. 
 
 Art. XXII. — The Commission has the right to require from 
 one or the other Party such explanations or information as it 
 may deem useful. 
 
APPENDIX I 141 
 
 Art. XXIII. — The Parties undertake to furnish the Commis- 
 sion of Inquiry, to the fullest extent they consider possible, with 
 all necessary means and facilities to obtain complete knowledge 
 and an exact appreciation of the facts at issue. 
 
 They undertake to make use of the means at their disposal in 
 accordance with their internal legislation, to ensure the attend- 
 ance of witnesses or experts, on their territory, and cited to appear 
 before the Commission. 
 
 If such witnesses and experts cannot appear before the 
 Commission, they will have their evidence taken before their own 
 proper authorities. 
 
 Art. XXIV. — For the purpose of any notifications which 
 the Commission may have to make on the territory of a third 
 Contracting Power, the Commission shall address itself directly 
 to the Government of that Poiver. The same applies where 
 evidence has to be taken on the spot. 
 
 Requests addressed for this purpose shall be carried out in 
 accordance with the methods provided by the domestic legislation 
 of the Power applied to. They can only be refused if this Power 
 consider them of a nature injurious to its sovereignty or security. 
 
 The Commission shall also at all times have Power of recourse 
 to the intermediary of the Power on whose territory it may be 
 holding its sittings. 
 
 Art. XXV. — Witnesses and experts are cited on applica- 
 tion by the Parties, or ex officio by the Commission, and, in all 
 cases, through the intermediary of the Government of the State 
 on whose territory they may be. 
 
 The witnesses are heard one after the other and separately, in 
 the presence of the agents and counsel, and in the order fixed by 
 the Commission. 
 
 Art. XXVI. — The interrogation of witnesses is conducted 
 by the President. 
 
 The members of the Commission may, nevertheless, put to 
 each witness such questions as they may think proper, to explain 
 or complete his deposition, or to obtain information on anything 
 relating to the witness within the necessary limits for the ascer- 
 taining of the truth. 
 
 The agents and counsel of the Parties may not interrupt 
 
142 ADJUSTING INTERNATIONAL DISPUTES 
 
 a witness in his deposition, nor address any question to him 
 directly, hut may request the President to put to the witness such 
 complementary questions as they may deem necessary. 
 
 Art. XXVIL- — The witness must make his depositions with- 
 out being allowed to read from any draft. He may, however, he 
 authorised by the President to make use of notes or documefits if 
 the nature of the facts deposed to necessitate their use. 
 
 Art. XXVIII. — A minute of the deposition of the witness is 
 drawn up during the sitting, and is read over to the witness. 
 The witness may make such alterations and additions as he may 
 think fit, and they shall he added at the foot of his deposition. 
 
 When the whole of the deposition is read over to the witness, 
 he is requested to sign it. 
 
 Art. XXIX. ^ — The agents are authorised, during or after 
 the inquiry, to submit in writing to the Commission and to the 
 other Party, such statements, requisitions or summaries of fact, 
 as they may deem fit for the ascertaining of the truth. 
 
 Art. XXX. — The deliberations of the Commission shall take 
 place within closed doors and shall be secret. 
 
 Every decision shall be by the majority of the members of the 
 Commission. 
 
 The refusal of a member to take part in the voting shall be 
 mentioned in the minute. 
 
 Art. XXXI. — The sittings of the Commission are only 
 public, and the minutes and documents of the inquiry are only 
 made public by virtue of a decision of the Commission, taken 
 with the consent of the Parties. 
 
 Art. XXXII. — The Parties having submitted all explanation 
 and evidence, all witnesses having been heard, the President pro- 
 nounces the inquiry closed, and the Commission adjourns to 
 deliberate and to draw tip its report. 
 
 Art. XXXIII. — The report is signed by all the members of 
 the Commission. 
 
 If any member refuses to sign it, mention is made thereof ; 
 the report, nevertheless, remains valid. 
 
 Art. XXXIV. — The report of the Commission is read at a 
 public sitting, the agents and counsel of the Parties being present 
 or didy cited. 
 
APPENDIX I 143 
 
 A copy of the report is forwarded to each Party. 
 
 Art. XXXV. — The report of the Commission, limited to an 
 ascertaining of the facts, has not the character of an arbitral 
 award. It allows the Parties full liberty in respect of giving 
 effect to such ascertainment. 
 
 Art. XXXVI. — Each Party shall bear its own costs and an 
 equal share of the expenses of the Commission. 
 
 Title IV. — On Internationai, Arbitration 
 Chapter I. — On the System of Arbitration 
 
 Art. [XV.] XXXVII. — International arbitration has for 
 its object the settlement of differences between States by 
 judges of their own choice, and on the basis of respect for law. 
 Recourse to arbitration implies an undertaking to submit in good 
 faith to the Award. 
 
 Art. [XVI.] XXXVIIL— In questions of a legal nature, 
 and especially in the interpretation or application of Inter- 
 national Conventions, arbitration is recognised by the 
 [Signatory] Contracting Powers as the most effective, and at 
 the same time the most equitable, means of settling disputes 
 which diplomacy has failed to settle. 
 
 Art. [XVII.] XXXIX.— The Arbitration Convention is 
 concluded for questions already existing or for questions which 
 may arise eventually. 
 
 It may embrace any dispute, or only disputes of a certain 
 category. 
 
 [Art. XVIII.— The Arbitration Convention implies the 
 engagement to submit loyally to the Award.] 
 
 Art. [XIX.] XL. — Independently of general or private 
 Treaties expressly stipulated recourse to arbitration as obliga- 
 tory on the [Signatory] Contracting Powers, these Powers 
 reserve to themselves the right of concluding [either before the 
 ratification of the present Act or later] new Agreements, 
 general or private, with a view to extending obligatory arbitra- 
 tion to all cases which they may consider it possible to submit 
 to it. 
 
144 ADJUSTING INTERNATIONAL DISPUTES 
 
 Chapter II. — On the Permanent Court of Arbitration 
 
 Art. [XX.] XLL— With the object of facilitating an 
 immediate recourse to arbitration for international differences, 
 which it has not been possible to settle by diplomacy, the 
 [Signatory] Contracting Powers undertake to [organise a] 
 maintain as established by the first Peace Conference, the 
 permanent Court of Arbitration, accessible at all times, 
 and operating, unless otherwise stipulated by the Parties, 
 in accordance with the Rules of Procedure inserted in the 
 present Convention. 
 
 Art. [XXL] XLII. — ^The permanent Court [shall be] is 
 competent for all arbitration cases, unless the Parties agree 
 to institute a special Tribunal. 
 
 Art. [XXII. ] XLIII. — The permanent Court has its seat at 
 the Hague. 
 
 An International Bureau [established at the Hague] serves 
 as record office for the Court. 
 
 [This Bureau] It is the channel for communications relative 
 to the meetings of the Court. 
 
 It has the custody of the archives, and conducts all the 
 administrative business. 
 
 The [Signatory] Contracting Powers undertake to com- 
 municate to the International Bureau [at the Hague], as soon 
 as possible, a duly certified copy of any conditions of arbitra- 
 tion arrived at between them, and of any award concerning 
 them delivered by special Tribunals. 
 
 They undertake also to communicate to the Bureau the 
 Laws, Regulations and documents eventually showing the 
 execution of the awards given by the Court. 
 
 Art. [XXIIL] XLIV.— [Within the three months following 
 ratification of the present Act], Each [Signatory] Contracting 
 Power [shall] selects four persons at the most, of known com- 
 petency in questions of international law, of the highest moral 
 reputation, and disposed to accept the duties of arbitrators. 
 
 The persons thus selected [shall be] are inscribed, as 
 members of the Court, in a list which shall be notified by the 
 Bureau to all the Signatory Powers. 
 
APPENDIX 1 145 
 
 Any alteration in the list of arbitrators is brought by the 
 Bureau to the knowledge of the [Signatory] Contracting 
 Powers. 
 
 Two or more Powers may agree on the selection in com- 
 mon of one or more members. 
 
 The same person can be selected by different Powers. 
 
 The members of the Court are appointed for a term of six 
 years. Their appointments can be renewed. 
 
 In case of the death or retirement of a member of the 
 Court, his place shall be filled in accordance with the method 
 of his appointment, and for a further period of six years. 
 
 Art. [XXIV.] XLV. — When the [Signatory] Contracting 
 Powers desire to have recourse to the permanent Court for 
 the settlement of a difference that has arisen between them, 
 the arbitrators called upon to form the competent Tribunal 
 to decide this difference must be chosen from the general 
 list of members of the Court. 
 
 Failing [the direct] agreement of the Parties on the com- 
 position of the Arbitration Tribunal the following course shall 
 be pursued : 
 
 Each Party appoints two arbitrators [and these], of whom 
 one only can he of its nationality or selected from those nominated 
 by them as members of the permanent Court. These arbitrators 
 together choose an umpire. 
 
 If the votes are equal, the choice of the umpire is en- 
 trusted to a third Power, selected by the Parties by common 
 accord. 
 
 If an agreement is not arrived at on this subject, each 
 Party selects a different Power, and the choice of the umpire 
 is made in concert by the Powers thus selected. 
 
 [The Tribunal being thus composed, the Parties notify to 
 the Bureau their determination to have recourse to the 
 Court and the names of the arbitrators. 
 
 The Tribunal of Arbitration assembles on the date fixed 
 by the Parties. 
 
 The members of the Court, in the discharge of their duties 
 and out of their own country, enjoy diplomatic privileges and 
 immunities.] 
 10 
 
146 ADJUSTING INTERNATIONAL DISPUTES 
 
 //, within a period of two months, these two Puwers have not 
 come to an agreement, each of them submits tao candidates 
 taken from the list of members of the permanent Court, apart 
 from the members selected by the Parties and not being nationals 
 of any of these Parties. The umpire shall be selected from the 
 candidates thus submitted by drawing of lots. • • : ■ . . » 
 
 [Art. XXV.— The Tribunal of Arbitration has its ordinary 
 seat at the Hague. 
 
 Except in cases of necessity, the place of session can 
 only be altered by the Tribunal with the assent of the 
 Parties.] 
 
 [Art. XXVI.— The International Bureau at the Hague is 
 authorised to place its premises and its staff at the disposal of 
 the Signatory Powers for the operations of any special Board 
 of Arbitration. 
 
 The jurisdiction of the permanent Court may, within the 
 conditions laid down in the Regulations, be extended to 
 disputes between non-Signatory Powers, or between Signa- 
 tory Powers and non-Signatory Powers, if the Parties are 
 agreed on recourse to this Tribunal.] 
 
 Art. XL VI. — As soon as the Tribunal is constituted, the 
 Parties shall notify to the Bureau their decision to apply to the 
 Court, the text of their " compromis " and the names of the 
 arbitrators. 
 
 The Bureau communicates, without delay, to each arbitrator 
 the " compromis " and the names of the other members of the 
 Tribunal. 
 
 The Tribunal sits at the date fixed by the Parties. The 
 Bureau provides for its installation. 
 
 The members of the Tribunal, in the exercise of their functions 
 and outside their own country, enjoy diplomatic privileges and 
 immunities. 
 
 Art. XLVII.^ — The Bureau is authorised to place its 
 premises and its organisation at the disposal of the Con- 
 tracting Powers for the purposes of any special proceedings in 
 arbitration. 
 
 1 See Article XXVI., of which this takes the place without change of 
 sense. 
 
APPENDIX I 147 
 
 The jurisdiction of the permanent Court may he extended, 
 under conditions provided for by the rules, to differences existing 
 between non-Contracting Powers or between Contracting Powers 
 and non-Contracting Powers, if the Parties are agreed to accept 
 this jurisdiction. 
 
 Art. [XXVII.] XLVIII.— The [Signatory] Contracting 
 Powers consider it their duty, if a serious dispute threatens 
 to break out between two or more of them, to remind these 
 latter that the permanent Court is open to them. 
 
 Consequently, they declare that the fact of reminding the 
 conflicting Parties of the provisions of the present Conven- 
 tion, and the advice given to them, in the highest interests 
 of peace, to have recourse to the permanent Cour*-, can only 
 be regarded as friendly actions. 
 
 In case of dispute between two Powers, one of them may 
 always address a note to the International Bureau containing 
 its declaration that it is prepared to submit the difference to 
 arbitration. 
 
 The Bureau shall at once bring the declaration to the know- 
 ledge of the other Power. 
 
 Art. [XXVIII.] XLIX.— [A] The Permanent Adminis- 
 trative Council composed of the Diplomatic Representatives 
 of the [Signatory] Contracting Powers accredited to the 
 Hague, and of the Netherland Minister for Foreign Affairs, 
 who [will] acts as President [shall be instituted in this town 
 as soon as possible after the ratification of the present Act 
 by at least nine Powers] under the direction and control oj 
 the International Bureau. 
 
 This Council will be charged \vith the establishment and 
 organisation of the International Bureau, which will be 
 under its direction and control. 
 
 [It will notif}' to the Powers the constitution of the 
 Court and will provide for its installation.] 
 
 [It will] This Council settles its Rules of Procedure and 
 all other necessary Regulations. 
 
 It [will] decides all questions of administration which 
 may arise with regard to the operations of the Court. 
 
 It [will have] has entire control over the appointment, 
 
148 ADJUSTING INTERNATIONAL DISPUTES 
 
 suspension or dismissal of the officials and employes of the 
 Bureau. 
 
 It [will] hxes the payments and salaries, and controls the 
 general expenditure. 
 
 At meetings duly summoned the presence of [five] nine 
 members is sufficient to render valid the discussions of the 
 Council. The decisions are taken by a majority of votes. 
 
 The Council communicates to the [Signatory] Contracting 
 Powers without delay the Regulations adopted by it. It 
 [furnishes] submits to them [with] an annual Report on the 
 labours of the Court, the working of the Administration, and 
 the expenses. 
 
 The. report- alcz co:i*oins a summary of the essential contents 
 of the documents communicated to the Bureau by the Powers 
 by virtue of Article 43, §§ 3 and 4. 
 
 Art. [XXIX.] L. — The expenses of the Bureau shall be 
 borne by the [Signatory] Contracting Powers in the propor- 
 tion fixed for the International Bureau of the Universal 
 Postal Union. 
 
 Chapter III. — On Arbitral Procedure 
 
 Art. [XXX.] LI. — With a view to encourage the develop- 
 ment of arbitration, the [Signatory] Contracting Powers 
 have agreed on the following Rules, which [shall be] are 
 applicable to arbitral procedure, unless other Rules have been 
 agreed on by the Parties. 
 
 Art. [XXXI. ] LII. — The Powers who have recourse to 
 arbitration sign a [special Act (" ] Compromis [")], in which 
 the subject of the difference is [clearly] defined [as well as 
 the extent of the arbitrators' powers. This Act implies 
 the undertaking of the Parties to submit loyally to the 
 Award], ^ the time for the appointment of the arbitrators, the 
 form, order and periods within which the communication 
 referred to in Article 63 shall be made, and the amount which 
 each Party shall deposit on account of expenses. 
 
 The " compromis " shall also fix, if necessary, the mode in 
 * This part of the Article has been transposed to Article XXXVII. 
 
APPENDIX I 149 
 
 which the arbitrators shall be appointed, all special powers 
 which it may be requisite to confer on the Tribunal, its meeting- 
 place, the language to be employed, and the languages the use 
 of which may be authorised before it, and generally all conditions 
 on which the Parties are agreed. 
 
 [Art. XXXII. — The duties of arbitrator may be con- 
 ferred on one arbitrator alone or on several arbitrators 
 selected by the Parties as they please, or chosen by them 
 from the members of the permanent Court of Arbitration 
 established by the present Act. 
 
 Failing the constitution of the Tribunal by direct agree- 
 ment between the Parties, the following course shall be 
 pursued : 
 
 Each Party appoints two arbitrators, and these latter 
 together choose an umpire. 
 
 In case of equal voting, the choice of the umpire is entrusted 
 to a third Power, selected by the Parties by common accord. 
 
 If no agreement is arrived at on this subject, each Party 
 selects a different Power, and the choice of the umpire is 
 made in concert by the Powers thus selected.] 
 
 Art. LIII. — The permanent Court is competent for the drawing 
 up of the " compromis," if the Parties are agreed to accept it. 
 
 It is also competent, even if the application is made by only 
 one of the Parties, when an arrangement through the diplomatic 
 channel has been tried in vain, provided it relates to : 
 
 1. A difference arising out of a general arbitration Treaty 
 entered into or renewed after this Convention shall have come 
 into force, and which provides for each difference a " Com- 
 promis," and which does not exclude, either expressly or 
 implicitly, the competence of the Court to settle it. In any 
 event, recourse to the Court shall not be admissible if the other 
 Party declares that in its opinion the difference does not belong 
 to the category of differences of a nature to be submitted to 
 obligatory arbitration, unless the arbitration Treaty confers on 
 the Court the power to decide this preliminary question ; 
 
 2. A difference arising out of contractual debts claimed 
 from one Power by another Power as due to its nationals, and 
 for the solution of which the offer of arbitration has been accepted. 
 
150 ADJUSTING INTERNATIONAL DISPUTES 
 
 This provision is not applicable if the acceptance has been made 
 subject to the condition that the " compromis " should be settled 
 in another way. 
 
 Art. LIV.^ — In cases provided for by the preceding Article, 
 the " compromis " shall be settled by a Commission composed 
 of five members appointed in the manner specified in Article 45^ 
 §§3^06. 
 
 The fifth member is " de jure " President of the Commission. 
 Art. LV. — Arbitral functions may be conferred on a single 
 arbitrator or on several arbitrators appointed by the Parties as 
 they may think proper, or selected by them from the members of 
 the permanent Court of Arbitration established by the present 
 Convention. 
 
 In default of constittition of the Tribunal by agreement 
 between the Parties, the procedure shall be as specified in 
 Article 45, §§3 to 6. 
 
 Art. [XXXIIL] LVL— When a Sovereign or the Chief 
 of a State is chosen as arbitrator, the arbitral procedure is 
 settled by him. 
 
 Art. [XXXIV.] LVII. — The umpire is by right President 
 of the Tribunal. 
 
 When the Tribunal does not include an umpire, it appoints 
 its own President. 
 
 Art. LVIII. — In the event of the settlement of the " com- 
 promis " by a Commission, as provided in Article 54, and in 
 the absence of any stipulation to the contrary, the Commission 
 ttself shall constitute the Tribunal of arbitration. 
 
 Art. [XXXV.] LIX. — In the case of death, retirement or 
 disability from any cause of one of the arbitrators, his place 
 shall be filled in accordance with the method of his appoint- 
 ment. 
 
 [Art. XXXVI. — The Tribunal's place of session is selected 
 by the Parties. Failing this selection the Tribunal sits at the 
 Hague. 
 
 The place thus fixed cannot, except in case of necessity, be 
 changed by the Tribunal without the assent of the Parties.] 
 
 Art. LX. — Unless otherwise fixed by the Parties, the Tribunal 
 shall hold its sittings at the Hague, 
 
APPENDIX I 151 
 
 The Tribunal may only hold its sittings on the territory of a 
 third Poxver with the consent of the latter. 
 
 The place of sitting once fixed can only be changed by the 
 Tribunal with the consent of the Parties. 
 
 Art. LXl.— If the " compromis " has not fixed the languages 
 to be used, this shall be decided by the Tribunal. 
 
 Art. [XXXVIL] LXII.— The Parties have the right to 
 appoint [delegates or] special agents to attend the Tribunal, 
 for the purpose of serving as intermediaries between them and 
 the Tribunal, 
 
 They are further authorised to retain, for the defence of 
 their rights and interests before the Tribunal, counsel or 
 advocates appointed by them for this purpose. 
 
 Members of the permanent Court cannot exercise the functions 
 of agents, counsel or advocates except for the benefit of the Power 
 which has appointed them members of the Court. 
 
 [Art. XXXVIII.— The Tribunal decides on the choice of 
 languages to be used by itself, and to be authorised for use 
 before it.] ^ 
 
 Art. [XXXIX.] LXIIL— As a general rule the arbitral 
 procedure comprises two distinct phases : preliminary ex- 
 amination and discussion. 
 
 Preliminary written examination consists in the com- 
 munication by the respective agents to the members of the 
 Tribunal and to the opposite Party [of all printed or written 
 Acts and of all documents containing the arguments invoked 
 in the case. This communication shall be made in the form 
 and within the periods fixed by the Tribunal in accordance 
 with Art. XLIX.] of memoirs, counter -memoirs, and, if necessary, 
 replies ; the Parties add all documents referred to in the case. 
 This communication shall be made, either directly or through the 
 medium of the International Bureau, in the order and within 
 the periods fixed by the " compromis." 
 
 The periods fixed by the " compromis " may be extended by 
 the mutual agreement of the Parties or by the Tribunal, when the 
 latter shall consider it necessary in order to arrive at a pist 
 decision. 
 
 ' See Article LXI., which takes the place of this Article. 
 
152 ADJUSTING INTERNATIONAL DISPUTES 
 
 Discussion consists in the oral development before the 
 Tribunal of the arguments of the Parties. 
 
 Art. [XL.] LXIV. — Every document produced by one 
 Party must be communicated to the other Party. 
 
 Art. LXV. — In the absence of special circumstances, the 
 Tribunal will only sit after all the preliminary examination has 
 been completed. 
 
 Art. [XLL] LXVI. — The discussions are under the direc- 
 tion of the President. 
 
 They are only public if it be so decided by the Tribunal, 
 with the assent of the Parties. 
 
 They are recorded in the proces-verbaux drawn up by the 
 Secretaries appointed by the President. These proces-verbaux 
 are signed by the President and by one of the Secretaries ; they 
 alone have an authentic character. 
 
 Art. [XLIL] LXVII. — When the preliminary examination 
 is concluded, the Tribunal has the right to refuse discussion of 
 all fresh Acts or documents which one Party may desire to 
 submit to it without the consent of the other Party. 
 
 Art. [XLIIL] LXVIIL— The Tribunal is free to take into 
 consideration fresh Acts or documents to which its attention 
 may be drawn by the agents or counsel of the Parties. 
 
 In this case, the Tribunal has the right to require the pro- 
 duction of these Acts or documents, but is obliged to make 
 them known to the opposite Party. 
 
 Art. [XLIV.] LXIX. — The Tribunal can, besides, require 
 from the agents of the Parties the production of all Acts, and 
 can demand all necessary explanations. In case of refusal, 
 the Tribunal takes note of it. 
 
 Art. [XLV.] LXX. — The agents and counsel of the Parties 
 are authorised to present orally to the Tribunal all the argu- 
 ments they may think expedient in defence of their case. 
 
 Art. [XLVL] LXXL— They have the right to raise objec- 
 tions and points. 
 
 The decisions of the Tribunal on those points are final, and 
 cannot form the subject of any subsequent discussion. 
 
 Art. [XLVIL] LXXIL— The members of the Tribunal 
 have the right to put questions to the agents and counsel of 
 
APPENDIX I 153 
 
 the Parties, and to ask explanations from them on doubtful 
 points. 
 
 Neither the questions put nor the remarks made by 
 members of the Tribunal during the discussions can be 
 regarded as an expression of opinion by the Tribunal in 
 general, or by its members in particular. 
 
 Art. [XLVIIL] LXXIIL— The Tribunal is authorised to 
 declare its competence in interpreting the " Compromis " as 
 well as the other Treaties which may be invoked in the case 
 and in applying the principles of international law. 
 
 Art. [XLIX.] LXXIV.— The Tribunal has the right to 
 issue Rules of Procedure for the conduct of the case, to decide 
 the forms, the order and periods within which each Party must 
 conclude its final arguments, and to arrange all the formalities 
 required for dealing with the evidence. 
 
 Art. UXXN .—The Parties undertake to supply the Tribunal, 
 as far as they possibly can, with all material requisite for the 
 settlement of the matter at issue. 
 
 Art. LXXVL — In respect of any notifications which the 
 Tribunal may have to make on the territory of a third Contracting 
 Power, the Tribunal shall address itself directly to the Govern- 
 ment of that Power. The same applies where evidence has to be 
 taken on the spot. 
 
 Applications to this effect shall be complied with in accordance 
 with the domestic legislation of the Power to whom the application 
 is addressed. They can only be refused if this Power shall con- 
 sider them of a nature to interfere with its sovereignty or its security. 
 
 The Tribunal shall always have the right of recourse to the 
 intermediary of the Power on whose territory its sittings are 
 held. 
 
 Art. [L.] LXXVII. — When the agents and counsel of the 
 Parties have submitted all explanations and evidence in 
 support of their case, the President pronounces the discussion 
 closed. 
 
 Art. [LL] LXXVIII.— The deliberations of the Tribunal 
 take place in private and remain secret. 
 
 Every decision is taken by a majority of members of the 
 Tribunal. 
 
154 ADJUSTING INTERNATIONAL DISPUTES 
 
 [The refusal of a member to vote must be recorded in the 
 proces-verbal.'] 
 
 Art. [LIT] LXXIX. — The Award[, given by a majority of 
 votes,] is accompanied by a statement of reasons. It shall 
 mention the names of the arbitrators ; it is signed hy the President 
 and by the registrar, or by the secretary acting as registrar. [It 
 is drawn up in writing and signed by each member of the 
 Tribunal. 
 
 Those members who are in the minority may record their 
 dissent when signing.] 
 
 Art. [LIIL] LXXX.— The Award is read out at a public 
 meeting [of the Tribunal], the agents and counsel of the 
 Parties being present, or duly summoned to attend. 
 
 Art. [LIV.] LXXXL— The Award, duly pronounced and 
 notified to the agents of the Parties [at variance], puts an end 
 to the dispute definitely and without appeal. 
 
 Art. LXXXII. — Any difference which may arise between the 
 Parties, relating to the interpretation and execution of the award, 
 shall, in the absence of any stipulation to the contrary, be sub- 
 mitted to the decision of the Court which has delivered it. 
 
 Art. [LV.] LXXXIIL— The Parties can reserve in the 
 " compromis " the right to demand the revision of the Award. 
 
 In this case, and unless there be an [agreement] stipulation 
 to the contrary, the demand must be addressed to the Tribunal 
 which pronounces the Award. It can only be made on the 
 ground of the discovery of some new fact calculated to exercise 
 a decisive influence on the Award, and which, at the time the 
 discussion was closed, was unknown to the Tribunal and to the 
 Party demanding the revision. 
 
 Proceedings for revision can only be instituted by a decision 
 of the Tribunal expressly recording the existence of the new 
 fact, recognising in it the character described in the foregoing 
 paragraph, and declaring the demand admissible on this 
 ground. 
 
 The " compromis " fixes the period within which the 
 demand for revision must be made. 
 
 Art. [LVL] LXXXIV.— The Award is only binding on 
 the Parties [who concluded the " Compromis "] at variance. 
 
APPENDIX I 155 
 
 When there is a question of interpreting a convention to 
 which Powers, other than those concerned in the dispute, are 
 Parties, the latter [notify to the former the " Compromis " they 
 have concluded] notify within a suitable time all the Signatory 
 Powers. Each of these Powers lias the right to intervene in 
 the case. If one or more of them avail themselves of this 
 right, the interpretation contained in the Award is equally 
 binding on them. 
 
 Art. [LVIL] LXXXV.— Each Party pays its own ex- 
 penses and an equal share of those of the Tribunal. 
 
 Chapter IV. — Of Summary Proceedings in Arbitration 
 
 Art. LXXXVI. — With a view to facilitate proceedings in 
 arbitration, when they concern disputes of a nature to be dealt 
 with summarily, the Contracting Powers adopt the following 
 rules which shall be followed in the absence of stipulations to 
 the contrary, and under reserve, should the case arise, of the 
 application of the provisions of Chapter III. which may not 
 be inconsistent therewith. 
 
 Art. LXXXVII. — Each of the Parties in conflict appoints an 
 arbitrator. The two arbitrators thus appointed choose an um- 
 pire. If they do not agree as to this, each shall submit two 
 candidates selected from the general list of the members of the 
 permanent Court, excluding the members indicated by each of 
 the Parties themselves and not being nationals of their respec- 
 tive countries ; which of these candidates shall be the umpire 
 shall be determined by drawing lots. 
 
 The umpire presides over the Tribunal which decides by the 
 majority. 
 
 Art. LXXXVIII. — In the absence of previous agreement, 
 the Tribunal, as soon as it is constituted, fixes the period within 
 which the two Parties are to submit their respective statements. 
 
 Art. LXXXIX. — Each Party is represented before the 
 Tribunal by an agent xvho shall act as intermediary between the 
 Tribunal and the Government which has appointed him. 
 
 Art. XC. — The proceedings shall be exclusively in writing. 
 Each Party has, however, the right to apply for the calling 
 
156 ADJUSTING INTERNATIONAL DISPUTES 
 
 of witnesses and experts. The Tribunal, on its side, has the 
 power to require oral explanations from the agents of the two 
 Parties, as well as from the witnesses and experts whose attend- 
 ance it shall deem desirable. 
 
 [General] Final Provisions 
 
 Art. XCI. — The present Convention, duly ratified, shall take 
 the place in the relations between the Contracting Powers of the 
 Convention for the pacific settlement of international disputes 
 of July 29, 1899. 
 
 Art. [LVIIL] XCII. — The present Convention shall be 
 ratified as speedily as possible. 
 
 The ratifications shall be deposited at the Hague. 
 
 [A proces-verbal shall be drawn up recording the receipt of 
 each ratification, and a copy duly certified shall be sent, 
 through the diplomatic channel, to all the Powers who were 
 represented at the International Peace Conference at the 
 Hague. 
 
 The first deposit of ratifications shall be recorded by a minute 
 signed by the representatives of the Powers taking part therein 
 and by the Netherland Minister of Foreign Affairs. 
 
 Deposits of ratifications thereafter shall be effected by a 
 written notification addressed to the Netherland Government and 
 accompanied by the instrument of ratification. 
 
 A certified copy of the minute relating to the first deposit 
 of ratifications, of the notifications mentioned in the preceding 
 paragraph, as well as of the instruments of ratification, shall 
 immediately be sent by the Netherland Government and by the 
 diplomatic channel to the Powers convened to the second Peace 
 Conference, as well as to the other Powers which shall have ad- 
 hered to the Convention. In the cases referred to in the pre- 
 ceding paragraph, the said Government shall at the same time 
 inform them of the date at which it received the notification. 
 
 [Art. LIX. — ^The non-Signatory Powers who were repre- 
 sented at the International Peace Conference can adhere to 
 the present Convention. For this purpose they must make 
 known their adhesion to the Contracting Powers by a written 
 
APPENDIX I 157 
 
 notification addressed to the Netherland Government, and 
 communicated by it to all the other Contracting Powers.] 
 
 Art. XCIII. — Non-Signatory Powers which were convened 
 to the second Peace Conference shall be allowed to adhere to the 
 present Convention. 
 
 Any Power wishing to adhere shall give notice of its inten- 
 tion in writing to the Netherland Government, and shall transmit 
 to the latter the act of adhesion which shall be deposited in the 
 archives of the said Government. 
 
 The said Government shall immediately transmit to all the 
 other Powers which were convened to the second Peace Con- 
 ference a certified copy of the notification and also of the act 
 of adhesion, and indicate the date at which it received the 
 notification. 
 
 Art. [LX.] XCIV. — The conditions on which the Powers 
 who were not [represented at] convened to the second [Inter- 
 national] Peace Conference can adhere to the present Conven- 
 tion shall form the subject of a subsequent Agreement among 
 the Contracting Powers. 
 
 Art. XCV. — The present Convention shall take effect as 
 regards the Powers who shall have taken part in the first deposit 
 of ratifications, sixty days after the date of the minute of this 
 deposit, and as regards the Powers who shall ratify thereafter, 
 or who shall adhere, sixty days after notification of their ratifica- 
 tion or of their adhesion, shall have been received by the Nether- 
 land Government. 
 
 Art. XCVI. — In the event of one of the Contracting Powers 
 wishing to denounce the present Convention, such denunciation 
 shall be notified in writing to the Netherland Government, who 
 shall at once communicate a certified copy of the notification to 
 all the other Powers, mentioning at the same time the date at 
 which it was received. 
 
 The denunciation shall only have effect in respect of the 
 Power having made it, and one year from the date on which 
 the Netherland Government shall have received it. 
 
 Art. XCVII. — A register kept by the Netherland Ministry 
 of Foreign Affairs shall indicate the date of the deposit of ratifi- 
 cations effected by virtue of Art. XCIL, §§ 3 and 4, and also the 
 
158 ADJUSTING INTERNATIONAL DISPUTES 
 
 date of receipt of the notifications of adhesion {Art. XCIII., § 2), 
 or of denunciation {Art. XCVI., §1). 
 
 Each Contracting Power shall have a right to examine this 
 register, and to apply for certified extracts therefrom. 
 
 [Art. LXL— In the event of one of the High Contracting 
 Parties denouncing the present Convention, this denunciation 
 would not take effect until a year after its notification made 
 in writing to the Netherland Government, and by it com- 
 municated at once to all the other Contracting Powers. 
 
 This denunciation shall only affect the notif3ang Power. 
 
 In faith of which the Plenipotentiaries have [signed] 
 affixed their signatures to the present Convention [and affixed 
 their seals to it]. 
 
 Done at the Hague [July 29, 1899], October 18, 1907, in 
 a single copy, which shall remain deposited in the archives of 
 the Netherland Government, and copies of it, duly certified, 
 shall be sent through the diplomatic channel to the Con- 
 tracting Powers. 
 
 [Signatures.'] 
 
II 
 
 PROPOSED CONVENTION RELATING TO THE 
 ESTABLISHMENT OF AN ARBITRAL COURT OF 
 JUSTICE (1907) 
 
 Title I. — Organisation of the Arbitral Court of 
 
 Justice 
 
 Art. I.— With a view to promoting the cause of arbitration, 
 the Contracting Powers have agreed to organise, without 
 interfering with the permanent Arbitration Court, an Arbitra- 
 tion Court of Justice, freely and easily accessible, based 
 upon the judicial equality of States, bringing together judges 
 representing the different judicial systems of the world, and 
 capable of assuring the continuity of arbitral jurisprudence. 
 
 Art. II. — The Arbitral Court of Justice shall be composed 
 of judges and assistant judges selected among persons enjoying 
 the highest moral esteem, all of whom shall fulfil the necessary 
 conditions, in their respective countries, for admission into 
 the higher ranks of the judiciary, or be competent and well- 
 known lawyers in matters of international law. 
 
 The judges and assistant judges of the Court shall be 
 selected, as far as possible, among the members of the per- 
 manent Court of Arbitration. The choice shall be made within 
 the six months following the ratification of the present Con- 
 vention. 
 
 Art. III. — The judges and assistant judges shall be 
 appointed for a period of twelve years from the date of the 
 notification of their appointment to the Administrative 
 Council instituted by the Convention for the peaceful settle- 
 ment of international conflicts. They may be reappointed. 
 
 '59 
 
i6o ADJUSTING INTERNATIONAL DISPUTES 
 
 In case of the death or resignation of a judge or assistant 
 judge, he shall be replaced in the manner fixed for his appoint- 
 ment. In that case, the appointment shall be made for a 
 further period of twelve years. 
 
 Art. IV. — The judges of the Arbitral Court of Justice are 
 all equal among themselves, and shall rank according to the 
 date of the notification of their appointment. Precedence 
 shall be given to the eldest, where the date is the same. 
 
 Assistant judges shall, in the exercise of their duties, be 
 assimilated to the ordinary judges. They shall, however, 
 rank after the latter. 
 
 Art. V. — The judges shall enjoy diplomatic privileges and 
 immunities in the exercise of their duties and outside their 
 respective countries. 
 
 Before entering upon their duties the judges and assistant 
 judges shall take oath, or make a solemn undertaking before 
 the Administrative Council, to exercise their functions with 
 impartiality and in all conscientiousness. 
 
 Art. VI. — The Court shall annually appoint three judges 
 who form a special Delegation, and three others to replace 
 them if they are prevented. They may be re-elected. The 
 election shall be made by ballot on a list. Those who have 
 the greatest number of votes shall be elected. The Delega- 
 tion shall elect its own President, who, in default of a majority, 
 shall be elected by drawing of lots. 
 
 No member of the Delegation can exercise his duties when 
 the Power by which he has been appointed, or of which he is 
 a subject or citizen, is one of the Parties. 
 
 The members of the Delegation shall finish the matters 
 which have been submitted to them, even if their period of 
 office has expired. 
 
 Art. VII. — No judge may exercise judicial duties in 
 matters in which he has in any way whatsoever taken part in 
 the decision of a national Court, Arbitration Court, or Com- 
 mission of Inquiry, or has acted in the case as counsel or 
 advocate of one of the Parties. 
 
 No judge shall have the right to act as agent or advocate 
 before the Arbitral Court of Justice, or the permanent Court 
 
APPENDIX II i6i 
 
 of Arbitration, or a special Court of Arbitration, or a Com- 
 mission of Inquiry, or to act for any Party in any capacity 
 whatsoever, during his period of office. 
 
 Art. VIII. — The Court shall elect its President and vice- 
 President by an absolute majority of the votes given. After 
 two ballots, the electionshall be made by the relative majority, 
 and, in case the votes are equal, the decision shall be left to the 
 drawing of lots. 
 
 Art. IX. — The judges of the Arbitral Court of Justice 
 shall receive an annual indemnity of six thousand Dutch 
 florins. This indemnity shall be paid at the expiry of every 
 six months from the date of the first meeting of the Court. 
 
 While exercising their duties during sessions or in the 
 special cases provided for in the present Convention, they 
 shall receive a sum of one hundred florins a day. They shall, 
 moreover, receive an indemnity for their journey fixed by 
 the regulations of their country. The provisions of the 
 present paragraph shall also apply to the assistant judges 
 replacing the judges. 
 
 These payments, included in the general expenses of the 
 Court, stipulated by Article XXXIII. , shall be paid through 
 the International Bureau instituted by the Convention for 
 the peaceful settlement of international conflicts. 
 
 Art. X. — The judges shall not receive from their own 
 Government or from that of any other Power any remunera- 
 tion for services included in their duties as members of the 
 Court. 
 
 Art. XL — The Arbitral Court of Justice shall sit at the 
 Hague, and shall not, except in case of vis major, be transferred 
 anywhere else. 
 
 The Delegation may, with the consent of the Parties, 
 choose another place to hold its meetings under special 
 circumstances. 
 
 Art. XII. — The Administrative Council fulfils as regards 
 the Arbitral Court of Justice the same duties as it fulfils as 
 regards the permanent Court of Arbitration. 
 
 Art. XIII. — The International Bureau serves as Registrar 
 to the Arbitral Court of Justice, 9.nd shall put its offices and 
 II 
 
yy 
 
 162 ADJUSTING INTERNATIONAL DISPUTES 
 
 organisation at the disposition of the Court. It shall be 
 entrasted with the archives and with the management of 
 administrative matters. 
 
 The General Secretary of the Bureau shall act as Registrar. 
 
 The Registrar's secretaries and the necessary translators 
 and stenographers shall be appointed and sworn by the 
 Court. 
 
 Art. XIV. — ^The Court assembles in session once a year. 
 The session begins on the third Wednesday in June and lasts 
 till all the questions at issue have been settled. 
 
 The Court shall not assemble in session if the Delegation 
 does not consider it necessary to do so. Nevertheless, if a 
 Power is a party in a case at present ^ pending before the 
 Court the examination of which is closed or is on the point 
 of being closed, it shall have the right to insist upon the 
 assembly taking place. 
 
 In case of necessity, the Delegation may call the Court 
 together for an extraordinary session. 
 
 Art. XV. — A report of the work of the Court shall be 
 drawn up every year by the Delegation. This report shall 
 be sent to the Contracting Powers through the International 
 Bureau. It shall be also communicated to all the judges 
 and assistant judges of the Court. 
 
 Art. XVI. — The judges and assistant judges, members of 
 the Arbitral Court of Justice, may also be appointed to the 
 duties of judge and assistant judge in the international Prize 
 Court. 
 
 Title II. — Competence and Procedure 
 
 Art. XVIL— The Arbitral Court of Justice shall be 
 competent to judge all cases submitted to it,! in virtue of a 
 general arbitration stipulation or of a special agreement. 
 Art. XVIII. — The Delegation is competent : 
 I. To judge arbitration cases stipulated in the preceding 
 Article, if the Parties are agreed to claim the applica- 
 tion of the summary procedure fixed by Title IV., 
 
 1 Actuellement means " at present," but the French word is probably 
 a mistranslation of some English word. 
 
APPENDIX II 163 
 
 Chapter 4, of the Convention for the pacific settle- 
 ment of international disputes ; 
 
 ■ / 2. To institute an inquiry in virtue of and in conformity 
 with Title III. of the said Convention in so far as 
 the Delegation is entrusted therewith by the Parties 
 acting by common consent. With the consent of 
 the Parties and by way of exception to Article VII., 
 § I, the members of the Delegation having taken 
 part in the inquiry may act as judges, if the case is 
 submitted to the arbitration of the Court or of the 
 Delegation itself. 
 Art. XIX. — The Delegation is, moreover, competent to 
 
 draw up the compromise stiipnlsded by Article LII. of the 
 
 Convention" for the settlement of international disputes,! if 
 
 the Parties are agreed to refer it to the Court. 
 
 It^ is also competent, even if the application is made by 
 
 one of the Parties, when, agreement by diplomatic means 
 
 having failed, it is a question of : 
 
 1. A difference comprised in the general Arbitration Treaty 
 
 concluded or renewed after the coming into force 
 of the present Convention, and which provides for 
 each difference a compromis, and does not explicitly 
 or implicitly exclude for the drawing up of the 
 latter the competence of the Delegation. However, 
 recourse to the Court shall not take place, if the 
 other Party declares that in its opinion the difference 
 does not belong to the kind of questions to be sub- 
 mitted to obhgatory arbitration, unless the Arbitra- 
 tion Treaty should give the Arbitral Tribunal the 
 right to decide this preliminary question. 
 
 2. A difference based upon contractual debts claimed 
 
 by one Power from another as due to its subjects or 
 citizens, and for the solution of which the offer of 
 arbitration has been accepted. This provision is 
 not applicable if the acceptance has been made 
 subject to the condition that the compromis be 
 drawn up in some other way. 
 Art. XX. — Each of the Parties has the right to appoint 
 
i64 ADJUSTING INTERNATIONAL DISPUTES 
 
 a judge of the Court to take part, with power to join in 
 the decision, in the examination of the matter submitted to 
 the Delegation. 
 
 If the Delegation acts as a Commission of Inquiry, this 
 mandate may be entrusted to persons selected outside the 
 judges of the Court. The expenses and the remuneration 
 to be paid to the said persons shall be fixed and borne by 
 the Powers by which they have been appointed. 
 
 Art. XXL — Access to the Arbitral Court of Justice in- 
 stituted by the present Convention is free to the Contracting 
 Powers only. 
 
 Art. XXII. — The Arbitral Court of Justice shall follow 
 the rules of procedure set out by the Convention for the 
 peaceful settlement of international disputes, except where 
 otherwise prescribed by the present Convention. 
 
 Art. XXIII. — The Court shall decide upon the choice of 
 the language to be used, and the languages the use of which 
 shall be authorised before it. 
 
 Art. XXIV. — The International Bureau shall serve as 
 intermediary for all communications to be made to the 
 judges during the examination of the affair, provided for by 
 Article LXIIL, § 2, of the Convention for the peaceful settle- 
 ment of international disputes. 
 
 Art. XXV. — For all notifications to be made, in particular 
 to the Parties, witnesses and experts, the Court may address 
 itself directly to the Government of the Power upon whose 
 territory the notification is to be effected. The same shall 
 apply where the procuring of evidence is concerned. 
 
 Requests addressed to this effect can only be refused 
 where the requesting Power considers them prejudicial to 
 its sovereignty or security. If effect is given to the request, 
 the expenses shall only include the costs of execution really 
 incurred. 
 
 The Court may also have recourse to the medium of the 
 Power upon whose territory it sits. 
 
 The notifications to be made to the Parties in the place 
 where the Court is sitting may be effected by the International 
 Bureau. 
 
APPENDIX II 165 
 
 Art. XXVI. — The arguments shall be directed by the 
 President and vice-President and, in case of absence or 
 prevention of one or the other, by the eldest judge present. 
 
 A judge appointed by one of the Parties cannot act as 
 President. 
 
 Art. XXVII. — The deliberations of the Court shall take 
 place with closed doors, and shall remain secret. 
 
 All decisions shall be taken by the majority of the judges 
 present. If the Court sits in even number and the votes 
 are equally divided, the vote of the last of the judges, in the 
 order of precedence as set out in Article IV., § i, shall not 
 be counted. 
 
 Art. XXVIII. — The motives of the decisions of the Court 
 shall be therein given. The decisions shall mention the 
 names of the judges who have taken part therein, and shall 
 be signed by the President and by the Registrar. 
 
 Art. XXIX. — Each Party shall bear its own costs and an 
 equal part of the special expenses of the procedure. 
 
 Art. XXX.— The provisions of Articles XXI. to XXIX. 
 are applied by analogy in the procedure before the Delegation. 
 
 When the right to adjoin a member to the Delegation 
 has only been exercised by one Party, the vote of the assistant 
 member shall not be counted if the votes are equal on both 
 sides. 
 
 Art. XXXI.- — The general expenses of the Court shall be 
 supported by the Contracting Powers. 
 
 The Administrative Council shall apply to the Powers to 
 obtain the funds necessary for the working of the Court. 
 
 Art. XXXII. — The Court shall itself make its internal 
 regulations, which shall be communicated to the Contracting 
 Powers. 
 
 After ratification of the present Convention, the Court 
 shall assemble as soon as possible, to draw up these regula- 
 tions, to elect the President and vice-President, as well as 
 appoint the members of the Delegation. 
 
 Art. XXXIII. — The Court may propose modifications to 
 the provisions of the present Convention concerning pro- 
 cedure. These propositions shall be communicated through 
 
166 ADJUSTING INTERNATIONAL DISPUTES 
 
 the Netherland Government to the Contracting Powers, who 
 shall decide what effect shall be given to them. 
 
 Title III. — Final Provisions 
 
 Art. XXXIV. — The present Convention shall be ratified 
 as soon as possible. 
 
 The ratifications shall be deposited at the Hague. 
 
 Minutes shall be recorded of the deposit of each ratifica- 
 tion, of which a certified copy shall be communicated through 
 the diplomatic channel to all the Signatory Powers. 
 
 Art. XXXV.' — ^The Convention shall come into force six 
 months after the date of its ratification. 
 
 It shall be valid for a period of twelve years, and shall 
 be tacitly renewed from twelve to twelve years, unless it be 
 denounced. 
 
 Denunciation must be notified at least two years before 
 the expiry of each period to the Netherland Government, 
 which shall communicate it to the other Powers. 
 
 Denunciation shall only have effect as regards the Power 
 who has notified. The Convention shall remain in force among 
 the other Powers. 
 
Ill 
 
 CONVENTION RELATIVE TO THE ESTABLISHMENT 
 OF AN INTERNATIONAL PRIZE COURT (1907) 
 
 {Names of the High Contracting Parties) 
 
 Animated by the desire to settle in an equitable manner 
 differences which arise from time to time in maritime warfare, 
 in connection with decisions of national Prize Courts. 
 
 Holding, that if such Courts are to continue to give decisions 
 in accordance with the forms prescribed by their legislation, 
 it is important that, in certain cases, recourse be provided 
 under conditions harmonising, as far as possible, with the 
 public and private interests involved in all Prize cases ; 
 
 Considering, on the other hand, that the formation of an 
 international Court with a carefully regulated competence and 
 procedure seems the best means of attaining this object ; 
 
 Being, moreover, convinced that in this manner the 
 rigorous consequences of a maritime war may be attenuated : 
 that, in particular, good relations between belhgerents and 
 neutrals are more likely to be maintained, and, in consequence, 
 the preservation of peace better assured ; 
 
 Desiring to conclude a Convention to this effect, have 
 named as their Plenipotentiaries the following : 
 
 {Names and Description of Plenipotentiaries) 
 
 Who, after having deposited their full powers, found in 
 good and due form, have agreed upon the following provisions : 
 
 Title I. — General Provisions 
 
 Art. I. — The validity of the capture of a merchant vessel or 
 
 of its cargo is, if neutral or enemy property is concerned, 
 
 167 
 
i68 ADJUSTING INTERNATIONAL DISPUTES 
 
 decided by a Prize Court in accordance with the present 
 Convention. 
 
 Art. II. — The Prize jurisdiction is exercised in the first place 
 by the Prize Courts of the capturing belligerent. 
 
 The decisions of these Courts are delivered at public sittings 
 or notified ex officio to the neutral or enemy Parties. 
 
 Art. III. — The decisions of national Prize Courts may be 
 the subject of appeal to the international Prize Court : 
 
 1. When the decisions of the national Courts concern the 
 
 property of a neutral State or individual ; 
 
 2. When the said decision concerns enemy property and 
 
 relates to : 
 
 (fl) goods on board a neutral vessel ; 
 {b) an enemy vessel, captured in the territorial 
 waters of a neutral Power, in case that Power 
 has not made such capture a matter of diplo- 
 matic claim ; 
 (c) a claim founded on an allegation that the 
 capture had been effected in violation either 
 of a Treaty provision in force between the 
 belligerent Powers, or of a provision in the 
 laws by the capturing belligerent. 
 The recourse against the decision of the national Courts 
 may be based on the allegation that such decision is not 
 justified, either de facto or de jure. 
 
 Art. IV. — Recourse may be exercised : 
 
 1. By a neutral Power if the decision of the national Court 
 
 is prejudicial to its property or to that of its subjects 
 or citizens (Article III., § i), or if it is alleged that the 
 capture of an enemy vessel has taken place in the 
 territorial waters of that Power (Article III., §2 (6)) ; 
 
 2. By a private neutral, if the decision of the national 
 
 Court is prejudicial to its property (Article III., § i), 
 subject, however, to the right of the Power of 
 which he is a subject or citizen to forbid him access 
 of the Court, or to act itself in his name and place ; 
 
 3. By a private individual belonging to the enemy Power, 
 
 if the decision of the national Courts is prejudicial 
 
APPENDIX HI 169 
 
 to his property under the conditions set out in 
 Article III., § 2, excepting the case provided for in 
 subsection {&). 
 
 Art. v.— Recourse may also be exercised, in the same 
 conditions as in the preceding Article, by the legal represen- 
 tatives, neutral or enemy, of the private person to whom 
 recourse is granted, and who have appeared before the national 
 jurisdiction. These legal representatives may individually 
 exercise the recourse to the extent of their interest. 
 
 This applies also to the legal representatives, neutral or 
 enemy, of the neutral Power whose property is involved. 
 
 Art. VI.— When, in accordance with Article III., the inter- 
 national Court is competent, the right of jurisdiction of the 
 national Courts can only be exercised to the extent of two 
 degrees. It is for the legislation of the capturing belligerent 
 to decide whether the recourse is open after the first decision 
 has been delivered or only after it has been delivered on appeal 
 or by the Court of Cassation. 1 
 
 If the national Courts fail to deliver a final decision within 
 two years from the date of capture, the Court ^ may be 
 seized directly. 
 
 Art. VII.— If the legal question involved is provided for 
 by a Convention in force between the capturing beUigerent 
 and the Power which is itself a party in the case, or whose 
 subject or citizen is a party thereto, the Court complies with 
 the stipulations of the said Convention. 
 
 In default of such stipulations, the Court applies the rules 
 of international law. If there are no generally recognised 
 rules in existence, the Court decides in accordance with the 
 general principles of justice and equity. 
 
 The above provisions are alike applicable as regards the 
 
 order of the evidence and the methods which may be employed. 
 
 If, in accordance with Article III., § 2 (c), the recourse is 
 
 founded upon the violation of a provision in the laws of the 
 
 capturing beUigerent, the Court apphes that provision. 
 
 1 To include the Court of Cassation not only adds a third degree, 
 but even opens up the possibility of a re-trial by the national Court. 
 - That is, the international Court. 
 
170 ADJUSTING INTERNATIONAL DISPUTES 
 
 The Court may disregard any forfeiture owing to non- 
 observance of procedure forming part of the legislation of the 
 capturing belligerent, in cases where it considers that the con- 
 sequences are contrary to justice and equity. 
 
 Art. VIII. — If the Court pronounces the validity of the 
 capture of the vessel or of the cargo, it shall be disposed of in 
 accordance with the laws of the capturing belligerent. 
 
 If the capture be pronounced null and void, the Court 
 orders the restitution of the vessel or of the cargo, and fixes, if 
 necessary, the amount of the indemnity to be paid. If the 
 vessel or cargo has been sold out or destroyed, the Court fixes 
 the indemnity to be granted in respect thereof to the owner. 
 
 If the nullity of the capture had been pronounced by the 
 national jurisdiction, the Court has only to fix the amount of 
 the indemnity. 
 
 Art. IX. — The Contracting Powers shall undertake to 
 submit in good faith to the decisions of the international Prize 
 Court, and to execute them with as little delay as possible. 
 
 Title II. — Organisation of the International 
 
 Prize Court 
 
 Art. X. — The international Prize Court shall be composed 
 of judges and assistant judges appointed by the Contracting 
 Parties, all of whom shall be lawyers whose competence in 
 matters of international maritime law is well known, and who 
 enjoy the highest moral reputation. 
 
 The appointment of such judges and assistant judges shall 
 take place within six months from the ratification of the present 
 Convention. 
 
 Art. XI. — The judges and assistant judges are appointed 
 for a period of six years from the date at which their appoint- 
 ment shall have been received by the Administrative Council 
 instituted by the Convention for the peaceful settlement of 
 international conflicts of July 29, 1899. They may be re- 
 appointed. 
 
 In case of the death or resignation of a judge or assistant 
 judge, he shall be replaced in the same way as fixed for his 
 
APPENDIX III 171 
 
 appointment. In this case the appointment is made for a 
 further period of six years. 
 
 Art. XII. — The judges of the international Prize Court are 
 all equal, and take rank from the date at which notice of their 
 appointment is received (Article XL, § i), and, if they sit 
 each in turn (Article XV., § 2), according to the date of their 
 taking up their duties. Precedence belongs to the older in 
 case the date is the same. 
 
 Assistant judges are in the exercise of their duties assimi- 
 lated to the ordinary judges. Nevertheless they rank after 
 the latter. 
 
 Art. XIII. — Judges enjoy diplomatic privileges and 
 immunities in the exercise of their duties and outside their 
 own country. 
 
 Before entering upon their duties, the judges shall take 
 oath or solemnly undertake before the Administrative Council 
 to exercise their functions impartially and conscientiously. 
 
 Art. XIV. — The Court is composed of fifteen judges, nine 
 of whom constitute the necessary quorum. 
 
 When a judge is absent or prevented from sitting, he is 
 replaced by the assistant judge. 
 
 Art. XV. — Judges appointed by the following Contracting 
 Powers— Germany, the United States of America, Austria- 
 Hungary, France, Great Britain, Italy, and Japan and Russia 
 — are always called upon to sit. 
 
 The judges and assistant judges appointed by the other 
 Contracting Powers sit in turns, according to the schedule 
 annexed to the present Convention ; their duties may be 
 exercised successively by the same person. The same judge 
 may be appointed by several of the said Powers. 
 
 Art. XVI. — If any belhgerent Power has not, according 
 to the roll, a judge sitting on the Court, such Power may 
 request that the judge whom it has appointed shall take 
 part in the judgment of all matters arising out of the war. 
 In this case it shall be decided by drawing lots which of the 
 sitting judges shall abstain. This exclusion shall not apply 
 to the judge appointed by the other belligerent. 
 
 Art. XVII. — No judge, having in any way whatsoever 
 
172 ADJUSTING INTERNATIONAL DISPUTES 
 
 taken part in the decision of the national Courts, or having 
 acted as counsel or advocate to either Party, shall sit. 
 
 No judge, ordinary or assistant, shall intervene as agent 
 or advocate before the international Prize Court, or act for 
 either Party, in any capacity whatsoever, throughout his 
 period of office. 
 
 Art. XVIII. — The capturing belligerent has the right to 
 appoint a naval officer of high rank to sit as assessor, with 
 power to express his opinions. The same right belongs to the 
 neutral Power which is itself a party in the case, or to the 
 Power whose subject or citizen is a party in it ; if, by reason 
 of the application of this last provision, several Powers are 
 interested, they must determine, if need be by the drawing of 
 lots, who shall be the officer appointed. 
 
 Art. XIX. — The Court elects its President and vice- 
 President by an absolute majority of votes. After polling 
 twice, the election shall be determined by the relative majority 
 of votes ; and in case the votes are equally divided, drawing 
 of lots shall be resorted to. 
 
 Art. XX. — The judges of the international Prize Court 
 shall receive an indemnity for their journey, the amount 
 of which shall be fixed according to the regulations of their 
 country, and shall receive in addition, during the session or 
 during the exercise of the functions conferred by the Court, a 
 sum of one hundred Dutch florins a day.^ 
 
 The said allowance, included in the general expenses of 
 the Court, provided by Article XLVII., shall be paid by the 
 International Bureau, instituted by the Convention of 
 July 29, 1899. 
 
 The judges shall not receive from their own Government 
 or from any other Government any remuneration as members 
 of the Court. 
 
 Art. XXI. — The international Prize Court shall sit at the 
 Hague, and shall not, except in case of vis major, be removed 
 elsewhere, and only then with the consent of the belligerent 
 Parties. 
 
 Art. XXII. — The Administrative Council, in which only 
 ^That iS;^8 to ;^9 a day. 
 
APPENDIX III 173 
 
 the representatives of the Contracting Powers are repre- 
 sented, discharges the same duties in regard to the inter- 
 national Prize Court as it discharges in regard to the per- 
 manent Arbitration Court. 
 
 Art. XXIII. — The International Bureau serves as Regis- 
 tration Office to the international Prize Court, and shall place 
 its offices and organisation at the disposal of the Court. It 
 has charge of the archives and the management of adminis- 
 trative matters. 
 
 The general secretary of the International Bureau acts as 
 Registrar. 
 
 The secretaries of the Registrar, translators and steno- 
 graphers are appointed and duly sworn by the Court. 
 
 Art. XXIV. — The Court decides upon the choice of the 
 language it shall use and the languages authorised to be used 
 before it. 
 
 In any case, the official language of the national Courts 
 who have dealt with the matter may be employed before the 
 Court. 
 
 Art. XXV. — The interested Powers have the right to 
 appoint special agents, whose mission is to serve as inter- 
 mediaries between them and the Court. They are, more- 
 over, authorised to entrust counsel or advocates with the 
 defence of their rights and interests. 
 
 Art. XXVI. — Interested private persons shall be repre- 
 sented before the Court by a representative, who shall be 
 either an advocate authorised to plead before a Court of 
 Appeal or a Supreme Court of one of the contracting countries, 
 or a solicitor practising before any such Court, or, lastly, a 
 professor of law at an institution of University rank of one of 
 these countries. 
 
 Art. XXVII. — For all notices to be given, in particular 
 to the parties, witnesses, and experts, the Court may address 
 itself directly to the Government of the Power upon whose 
 territory the notice has to be effected. The same shall 
 apply where the object is to procure any kind of evidence. 
 
 Requests addressed to this effect shall be carried out 
 according to the means which the requisitioned Power dis- 
 
174 ADJUSTING INTERNATIONAL DISPUTES 
 
 poses of according to its domestic legislation. They can only 
 be refused in case that Power considers them of a nature 
 prejudicial to its sovereignty or security. If the request is 
 acted upon, the expenses only include the execution actually 
 effected. 
 
 The Court has also the right to employ the services of the 
 Power on whose territory it is acting. 
 
 The notices to be made to the parties in the place where 
 the Court is sitting may be made by the International Bureau. 
 
 Title III. — Procedure before the International 
 
 Prize Court 
 
 Art. XXVIII. — Recourse to the international Prize Court 
 is effected by means of a written declaration, made before the 
 national Court which decided the case, or addressed to the 
 International Bureau ; the latter may be informed even by 
 telegram. 
 
 The delay of recourse is fixed at one hundred and twenty 
 days from the date at which the decision was delivered or 
 notified (Article II., § 2). 
 
 Art. XXIX. — If the declaration of recourse is made before 
 the national Court, the latter, without examining if the time 
 fixed has been observed, has the papers of the matter sent to 
 the International Bureau within the seven following days. 
 
 If the declaration of recourse is addressed to the Inter- 
 national Bureau, the latter shall immediately notify the 
 national Court to this effect, by telegram if possible. The 
 Court shall transmit the papers as provided for in the pre- 
 ceding clause. 
 
 When the recourse is effected by a neutral private person, 
 the International Bureau shall immediately advise by tele- 
 gram the Power to which he belongs, so that the said Power 
 may take advantage of the right accorded by Article IV., § 2. 
 
 Art. XXX. — In the case provided for by Article VI., § 2, 
 the recourse can only be addressed to the International Bureau. 
 It must be lodged within thirty days after the expiry of the 
 two years. 
 
APPENDIX III 175 
 
 Art. XXXI. — In case of failure of a party to enter recourse 
 within the time fixed by Article XXVIII. or Article XXX.. the 
 apphcation shall be rejected without discussion. 
 
 However, if the delay is shown to be due to vis major, and 
 if the recourse has been entered within the sixty days from the 
 cessation of the cause of such delay, the application may still 
 be considered, the adverse party having been duly heard. 
 
 Art. XXXII. — If the recourse has been entered in due time, 
 the Court gives notice ex officio by a certified copy of the 
 declaration to the adverse party. 
 
 Art. XXXIII. — If, outside the parties who have entered 
 recourse to the Court, there are others interested having a 
 right to enter recourse, or if, in the case provided for by 
 Article XXIX., § 3, the Power which has been notified has not 
 made known its determination, the Court waits, before taking 
 up the matter, till the time stipulated by Article XXVIII. or 
 Article XXX. has expired. 
 
 Art. XXXIV. — The procedure before the international 
 Court has two distinct stages : the written procedure and 
 oral debates. 
 
 The written procedure consists in the deposit and exchange 
 of statements, of covmter statements, and, if necessary, of 
 replies, the order and time for which shall be decided by the 
 Court. The parties shall add thereto such documents as 
 they may intend to make use of. 
 
 All documents produced by a party shall be communicated 
 by certified copies to the other party by the intermediary 
 of the Court. 
 
 Art. XXXV. — The written procedure being terminated, 
 there shall be a pubhc hearing, the date of which shall be 
 fixed by the Court. 
 
 At that hearing the parties explain the nature of the issue 
 in fact and in law. 
 
 The Court may at any stage in the case suspend the argu- 
 ments, either at the request of one of the parties or ex officio, 
 in order to obtain further evidence. 
 
 Art. XXXVI. — The international Court may order that 
 the further evidence be taken, either in accordance with 
 
176 ADJUSTING INTERNATIONAL DISPUTES 
 
 Article XXVII., or directly before it or before one or several 
 of its members, so long as it can be effected without coercive 
 or comminatory means. 
 
 If the evidence has to be obtained by members of the 
 Court outside the territory where it is sitting, the consent of 
 the foreign Government has to be obtained. 
 
 Art. XXXVII. — The parties are cited ^ to be present at 
 all the measures connected with the taking of the evidence. 
 They shall receive a certified copy of all the minutes. 
 
 Art. XXXVIIL— The arguments shall be directed by 
 the President or Vice-President, and in case of one or the 
 other being absent or prevented, by the eldest judge present. 
 
 The judge appointed by a belligerent party cannot preside. 
 
 Art. XXXIX. — The arguments are public, unless one of 
 the Powers concerned in the case should apply to have them 
 heard with closed doors. 
 
 They shall be recorded on the minutes, which shall be 
 signed by the President and the Registrar, and which alone 
 shall have an official character. 
 
 Art. XL. — In case one of the parties should not appear, 
 although duly cited, or in case such party should fail to take 
 the necessary steps in the time fixed by the Court, proceedings 
 shall go on without such party, and the Court decides accord- 
 ing to the evidence which it has at its disposal. 
 
 Art. XLI. — The Court shall, ex officio, notify to the parties 
 all the decisions or orders made in their absence. 
 
 Art. XLII. — The Court shall form its opinion freely upon 
 all documents, evidence, and oral declarations. 
 
 Art. XLIII. — The dehberations of the Court take place 
 with closed doors, and remain secret. 
 
 Decisions are taken by a majority of judges present. If 
 there are an even number of judges sitting and the votes are 
 equally divided, the vote of the last judge in the order of 
 precedence, as provided by Article XII. , § i, is not counted. 
 
 Art. XLIV. — The judgment of the Court shall state its 
 motives. It shall mention the names of judges delivering it, 
 
 1 The word "appele" is vague and ambiguous. Probably the 
 draftsman meant "cite" (cited), as in Article XL. 
 
APPENDIX III 177 
 
 as well as the names of the assessors, if any ; it shall be 
 signed by the President and Registrar. 
 
 Art. XLV.— The judgment is delivered at a pubHc 
 sitting, the parties being present or duly called ; it is, ex 
 o-fficio, notified to the parties. 
 
 The notification having been effected, the Court shall 
 hand to the national Prize Court the papers of the case, 
 together with an official copy of the various decisions arrived 
 at, and a copy of the minutes of the proceedings. 
 
 Art. XLVL— Each party shall bear the costs of its own 
 defence. 
 
 The defeated party also bears the costs of procedure. It 
 pays, in addition, one hundredth part of the value of the 
 matter at issue as a contribution to the general expenses of 
 the international Court. The amount of these payments 
 shall be fixed by the Court. 
 
 If the recourse is entered by a private person, the latter 
 shall deposit as security with the International Bureau an 
 amount which shall be fixed by the Court, and the object of 
 which is to guarantee the fulfilment of the two obligations 
 imposed by the preceding paragraph. The Court may sub- 
 ordinate the opening of the procedure to the deposit of the 
 security. 
 
 Art. XLVII. — The general expenses of the international 
 Prize Court shall be borne by the Contracting Powers in the 
 proportion of their participation in the working of the Court, 
 as provided for in Article XV. and the schedule hereto annexed. 
 No contribution is entailed by the appointment of the assistant 
 judges. 
 
 The Administrative Council shall apply to the Powers to 
 obtain the necessary funds for the working of the Court. 
 
 Art. XLVIII. — When the Court is not sitting, the func- 
 tions which have been entrusted to it by Article XXXII., 
 Article XXXIV., §§ 2 and 3, Article XXXV., § i, and Article 
 XLVI., § 3, shall be exercised by a delegation of three judges 
 appointed by the Court. This delegation decides by a majority 
 of the votes. 
 
 Art. XLIX. — Within a year of the ratification of the 
 12 
 
178 ADJUSTING INTERNATIONAL DISPUTES 
 
 present Convention, it shall assemble to draw up these regula- 
 tions. 
 
 The Court shall itself draw up the regulations for its internal 
 government, which shall be communicated to the Contracting 
 Powers. 
 
 Art. L. — The Court may propose modifications to be 
 made to the provisions of the present Convention concerning 
 procedure. Any such proposals shall be communicated 
 through the Netherland Government to the Contracting 
 Powers, which shall concert as to the effect to be given to 
 them. 
 
 [Title IV. — Final Provisions ' 
 
 Art. LI. — The present Convention shall only be applicable 
 ipso facto if all the belUgerent Powers are parties thereto. 
 
 It is understood, moreover, that recourse to the interna- 
 tional Prize Court shall only be exercised by a Contracting 
 Power, or subjects or citizens of a Contracting Power. 
 
 In the case of Article V., recourse is only granted when the 
 owner and his legal representative are also Contracting Powers, 
 or subjects or citizens of Contracting Powers. 
 
IV 
 
 TREATY OF ARBITRATION BETWEEN GREAT 
 BRITAIN AND THE UNITED STATES 
 
 Signed January 12, 1897 
 
 Art. I. — The High Contracting Parties agree to submit 
 to arbitration, in accordance with the provisions and subject 
 to the limitations of this Treaty, all questions in difference 
 between them which they may fail to adjust by diplomatic 
 negotiation. 
 
 Art. II. — All pecuniary claims, or groups of pecuniary 
 claims, which do not, in the aggregate, exceed £100,000 in 
 amount, and which do not involve the determination of 
 territorial claims, shall be dealt with and decided by an 
 Arbitral Tribunal constituted as provided in the following 
 Article. 
 
 In this Article and in Article IV. the words " groups of 
 pecuniary claims " mean pecuniary claims by one or more 
 persons arising out of the same transactions or involving the 
 same issues of law and of fact. 
 
 Art. III.— Each of the High Contracting Parties shall 
 nominate one arbitrator, who shall be a jurist of repute, and 
 the two arbitrators so nominated shall, within two months of 
 the date of their nomination, select an umpire. In case they 
 shall fail to do so within the limit of the time above men- 
 tioned, the umpire shall be appointed by agreement between 
 the members for the time being of the Judicial Committee 
 of the Privy Council in Great Britain and the members for 
 the time being of the Supreme Court of the United States, 
 each nominating body acting by a majority. In case they 
 
i8o ADJUSTING INTERNATIONAL DISPUTES 
 
 shall fail to agree upon an umpire within three months of 
 the date of an appHcation made to them in that behalf 
 by the High Contracting Parties, or either of them, the 
 umpire shall be selected in the manner provided for in 
 Article X. 
 
 The person so selected shall be the President of the Tribunal, 
 and the Award of the majority of the members thereof shall 
 be final. 
 
 Art, IV. — All pecuniary claims, or groups of pecuniary 
 claims, which shall exceed £100,000 in amount, and all other 
 matters in difference in respect of which either of the High 
 Contracting Parties shall have rights against the other under 
 Treaty or otherwise, provided that such matters in difference 
 do not involve the determination of territorial claims, shall 
 be dealt with and decided by an Arbitral Tribunal, constituted 
 as provided in the next following Article. 
 
 Art. V.' — Any subject of arbitration described in Article IV. 
 shall be submitted to the Tribunal provided for by Article III., 
 the Award of which Tribunal, if unanimous, shall be final. 
 If not unanimous, either of the High Contracting Parties 
 may, within six months from the date of the Award, demand 
 a review thereof. In such case the matter in controversy 
 shall be submitted to an Arbitral Tribunal, consisting of five 
 jurists of repute, no one of whom shall have been a member 
 of the Tribunal whose Award is to be reviewed, and who shall 
 be selected as follows, viz., two by each of the High Contract- 
 ing Parties, and, one to act as umpire, by the four thus nomi- 
 nated and to be chosen within three months after the date 
 of their nomination. In case they shall fail to choose an 
 umpire within the limit of time above mentioned, the umpire 
 shall be appointed by Agreement between the nominating 
 bodies designated in Article III., acting in the manner therein 
 provided. In case they shall fail to agree upon an imipire 
 wdthin three months of the date of an application made to 
 them in that behalf by the High Contracting Parties, or 
 either of them, the umpire shall be selected in the manner 
 provided for in Article X. 
 
 The person so selected shall be the President of the 
 
APPENDIX IV i8i 
 
 Tribunal, and the Award of the majority of the members 
 thereof shall be fined. 
 
 Art. VI. — Any controversy which shall involve the 
 determination of territorial claims shall be submitted to a 
 Tribunal composed of six members, three of whom (subject 
 to the provisions of Article VIII.) shall be judges of the 
 British Supreme Court of Judicature or members of the 
 Judicial Committee of the Privy Council, to be nominated 
 by His Britannic Majesty, and the other three of whom (sub- 
 ject to the provisions of Article VIII.) shall be judges of the 
 Supreme Court of the United States or justices of the Circuit 
 Courts to be nominated by the President of the United States, 
 whose Award, by a majority of not less than five to one, shall 
 be final. In case of an Award made by less than the pre- 
 scribed majority, the Award shall also be final unless either 
 Power shall, within three months after the Award has been 
 reported, protest that the same is erroneous, in which case 
 the Award shall be of no validity. 
 
 In the event of an Award made by less than the prescribed 
 majority, and protested as above provided, or if the members 
 of the Arbitral Tribunal shall be equally divided, there shall 
 be no recourse to hostile measures of any description until 
 the mediation of one or more friendly Powers has been in- 
 vited by one or both of the High Contracting Parties. 
 
 Art. VII. — Objections to the jurisdiction of an Arbitral 
 Tribunal constituted under this Treaty shall not be taken 
 except as provided in this Article. 
 
 If, before the close of the hearing upon a claim submitted 
 to an Arbitral Tribunal constituted under Article III. or 
 Article V., either of the High Contracting Parties shall move 
 such Tribunal to decide, and thereupon it shall decide, that 
 the determination of such claim necessarily involves the 
 decision of a disputed question of principle of grave general 
 importance affecting the national rights of such Party, as 
 distinguished from the private rights whereof it is merely 
 the international representative, the jurisdiction of such 
 Arbitral Tribunal over such claim shall cease, and the same 
 shall be dealt with by arbitration under Article VI. 
 
1 82 ADJUSTING INTERNATIONAL DISPUTES 
 
 Art. VIII. — In cases where the question involved is one 
 which concerns a British Colony or possession, it shall be 
 open to His Britannic Majesty to appoint a judicial officer 
 of such Colony or possession to be one of the arbitrators 
 under Article III., or Article V., or Article VI. 
 
 In like manner, in cases where the question involved is 
 one which concerns a particular State or territory of the 
 United States, it shall be open to the President of the United 
 States to appoint a judicial officer of such State or territory 
 to be one of the arbitrators under Article III., or Article V., 
 or Article VI. 
 
 Art. IX. — Territorial claims in this Treaty shall include 
 all claims to territory and all claims involving questions of 
 servitudes, rights of navigation and of access, fisheries, and 
 all rights and interests necessary to the control and enjoyment 
 of the territory claimed by either of the High Contracting 
 Parties. 
 
 Art. X. — If in any case the nominating bodies designated 
 in Articles III. and V. shall fail to agree upon an umpire in 
 accordance with the provisions of the said Articles, the 
 umpire shall be appointed by His Majesty the King of 
 Sweden and Norway. 
 
 Either of the High Contracting Parties, however, may at 
 any time give notice to the other that, by reason of material 
 changes in conditions as existing at the date of this Treaty, 
 it is of opinion that a substitute for His Majesty should be 
 chosen, either for all cases to arise under the Treaty, or for 
 a particular specified case already arisen, and thereupon the 
 High Contracting Parties shall at once proceed to agree upon 
 such substitute to act, either in all cases to arise under the 
 Treaty, or in the particular case specified, as may be indicated 
 by said notice shall have no effect upon an arbitration already 
 begun by the Constitution of an Arbitral Tribunal under 
 Article III. 
 
 The High Contracting Parties shall also at once proceed 
 to nominate a substitute for His Majesty in the event that 
 His Majesty shall at any time notify them of his desire to be 
 relieved from the functions graciously accepted by him under 
 
APPENDIX IV 183 
 
 this Treaty, either for all cases to arise thereunder, or for any 
 particular specified case already arisen. 
 
 Art. XI. — In case of the death, absence or incapacity 
 to serve of any arbitrator or umpire, or in the event of any 
 arbitrator or umpire omitting or declining or ceasing to act 
 as such, another arbitrator or umpire shall be forthwith 
 appointed in his place and stead in the manner provided for 
 with regard to the original appointment. 
 
 Art. XII. — Each Government shall pay its own agent, 
 and provide for the proper remuneration of the Counsel 
 employed by it and of the arbitrators appointed by it, and 
 for the expense of preparing and submitting its case to the 
 Arbitral Tribunal. All other expenses connected with any 
 arbitration shall be defrayed by the two Governments in 
 equal moieties. Provided, however, that if in any case 
 the essential matter of difference submitted to arbitration 
 is the right of one of the High Contracting Parties to receive 
 disavowals of, or apologies for, acts or defaults of the other 
 not resulting in substantial pecuniary injury, the Arbitral 
 Tribunal finally disposing of the said matter shall direct 
 whether any of the expenses of the successful Party shall be 
 borne by the unsuccessful Party, and, if so, to what extent. 
 
 Art. XIII. — ^The time and place of meeting of an Arbitral 
 Tribunal, and all arrangements for the hearing and all ques- 
 tions of procedure, shall be decided by the Tribunal itself. 
 
 Each Arbitral Tribunal shall keep a correct record of its 
 proceedings, and may appoint and employ all necessary 
 officers and agents. 
 
 The decision of the Tribunal shall, if possible, be made 
 within three months from the close of the arguments on 
 both sides. 
 
 It shall be made in writing and dated, and shall be signed 
 by the arbitrators who may assent to it. 
 
 The decision shall be in duplicate, one copy whereof shall 
 be delivered to each of the High Contracting Parties through 
 their respective agents. 
 
 Art. XIV. — ^This Treaty shall remain in force for five 
 years from the date at which it shall come into operation, 
 
i84 ADJUSTING INTERNATIONAL DISPUTES 
 
 and further until the expiration of twelve months after either 
 of the High Contracting Parties shall have given notice to 
 the other of its wish to terminate the same. 
 
 Art. XV. — ^The present Treaty shall be duly ratified by 
 His Britannic Majesty, and by the President of the United 
 States of America, by and with the advice and consent of the 
 Senate thereof ; and the mutual exchange of ratifications shall 
 take place in London or in Washington within six months of 
 the date hereof, or earlier if possible. 
 
 In faith whereof, we, the respective Plenipotentiaries, 
 have signed this Treaty, and have hereunto affixed our seals. 
 
 Done in duplicate at Washington, the nth day of 
 January 1897. 
 
 (Signed) Julian Pauncefote. (Seal.) 
 (Signed) Richard Olney. (Seal.) 
 
V 
 
 ANGLO-FRENCH (OCTOBER 14, 1903) AND ANGLO- 
 AMERICAN (DECEMBER 12. 1904) TREATIES OF 
 ARBITRATION AND NOTE 1 THEREON 
 
 Below is the text of the Anglo-American Treaty signed 
 by the late Hon. John Hay and by Sir Mortimer Durand on 
 December 12, 1904, and submitted shortly after by President 
 Roosevelt to the Senate of the United States for ratification. 
 The Senate inserted in Article II. the word " Treaty " in the 
 place of the word " Agreement." With this alteration they 
 returned it to the President, who considered the alteration 
 left him no alternative but to consider the Treaty and the 
 other similar Treaties which had been negotiated as cancelled. 
 Alongside the text of the Anglo-American Treaty I place, 
 for comparison, that of the Anglo-French Treaty : 
 
 Anglo-American Treaty Anglo-French Treaty of 
 OF Dec. 12, 1904 Oct. 14, 1903 
 
 The United States of The Government of the 
 America, etc., signatories of French Republic and the 
 the Convention for the pacific Government of H.B. Majesty, 
 settlement of international signatories of the Convention 
 disputes, concluded at the for the pacific settlement of 
 Hague on July 29, 1899, international disputes, con- 
 
 cluded at the Hague, July 29, 
 1899, 
 Taking into consideration Considering that by Article 
 
 ' This Note was printed as a private memorandum and dated 
 
 July 3, 1905. 
 
 185 
 
i86 ADJUSTING INTERNATIONAL DISPUTES 
 
 that by Article XIX.i of that XIX. of this Convention the 
 Convention the High Con- High Contracting Parties re- 
 tracting Parties have reserved served to themselves the con- 
 to themselves the right of elusion of Agreements in view 
 concluding Agreements with of recourse to arbitration in 
 a view to referring to arbitra- all cases which they judged 
 tion all questions which they capable of submission to it, 
 shall consider possible to sub- 
 mit to such treatment, 
 
 Have appointed their re- Have authorised the under- 
 
 spective Plenipotentiaries, signed to agree as follows : 
 namely : 
 
 Who, after having com- 
 municated each to the other 
 their respective full powers in 
 good and due form, have 
 agreed upon the following 
 Articles : — 
 
 Art. I. — Differences which Art. I. — Differences of a 
 
 may arise of a legal nature, or judicial order, or relating to 
 
 relating to the interpretation the interpretation of existing 
 
 of Treaties existing between Treaties between the two 
 
 the two Contracting Parties, Contracting Parties, which 
 
 and which it may not have may arise, and which it may 
 
 been possible to settle by not have been possible to 
 
 diplomacy, shall be referred settle by diplomacy, shall be 
 
 to the permanent Court of submitted to the permanent 
 
 Arbitration established at the Court of Arbitration, estab- 
 
 Hague by the Convention lished by the Convention of 
 
 of July 29, 1899, provided, July 29, 1899, ^^ the Hague, 
 
 nevertheless that they do not on condition, however, that 
 
 * Art. XIX. of the Convention of July 29, 1899, for the Pacific 
 Settlement of International Disputes is as follows : " Independently 
 of general or special Treaties, which may already impose the obligation 
 upon the Signatory Powers to have recourse to arbitration, these 
 Powers reserve to themselves the liberty to conclude either before 
 the ratification of the present Act, or afterwards, new Agreements, 
 general or particular, with the object of extending compulsory arbitration 
 to afl cases whieh they fudge capable of being submitted to it," 
 
APPENDIX V 187 
 
 affect the vital interests, the neither the vital interests, nor 
 independence or the honour the independence or honour 
 of the two Contracting States, of the two Contracting States, 
 and do not concern the in- nor the interests of any State 
 terests of third Parties. other than the two Contract- 
 
 ing States, are involved. 
 
 Art. II. — In each indi- Art. II. — In each parti- 
 vidual case the High Contract- cular case the High Contract- 
 ing Parties, before appealing ing Parties, before addressing 
 to the permanent Court of themselves to the permanent 
 Arbitration, shall conclude a Court of Arbitration, shall 
 special Agreement defining sign a special undertaking [in 
 clearly the matter in dispute French — compromis] deter- 
 and the scope of the powers mining clearly the subject of 
 of the arbitrators, and fixing dispute, the extent of the 
 the periods for the formation arbitral powers, and the 
 of the Arbitral Tribunal, and periods to be observed in the 
 the several stages of the pro- constitution of the Arbitral 
 cedure. Tribunal, and the procedure. 
 
 Art. III. — JThe ilfpresent 
 Convention shall be ratified by 
 the President of the United 
 States of America by and with 
 the advice and consent of 
 the Senate thereof, and by 
 The ratifications shall be ex- 
 changed at Washington as 
 soon as possible, and the Con- 
 vention shall take effect on 
 the date of the exchange of 
 its ratifications. 
 
 Art. IV.— The present Con- Art. III.— The present ar- 
 vention is concluded for a rangement is concluded for a 
 period of five years, dating duration of five years from 
 from the day of the exchange the date of signature, 
 of its ratifications. 
 
 The essential points in the tyvo texts are distinguished 
 by italics. 
 
i88 ADJUSTING INTERNATIONAL DISPUTES 
 
 The questions in connection with these Treaties to which 
 attention is drawn are : 
 
 1. Whether Article II. in both Treaties is necessary 
 or useful. 
 
 2. Whether Article III. in the Anglo-American text is 
 not beyond the scope of an International Treaty. 
 
 3. And, if so, whether a way cannot be found of 
 meeting the Senate's objections, without introducing a 
 constitutional question of purely domestic interest into 
 an arrangement with other Powers. 
 
 I will deal with them in the above order. 
 I. Article II. is a reproduction of Article XXXI. of the 
 Hague Convention. It figures therein under the heading of 
 " Arbitral Procedure," and it was, in fact, borrowed from 
 the ordinary procedure in arbitration practice. Article XXXI. 
 is as follows : 
 
 " The Powers which have recourse to arbitration sign 
 
 a special act [compromis] in which are clearly set out 
 
 the matter in dispute as well as the scope of the powers 
 
 of the arbitrators." 
 
 Why M. Delcass6, who drew up the form which was with 
 
 slight modifications ultimately adopted, thought it desirable 
 
 to again insert the clause in the supplementary Convention 
 
 is not clear, seeing that all the latter was intended to do 
 
 was, as is therein indicated, to make reference to arbitration 
 
 obligatory in certain cases. 
 
 All the signatories of the Peace Convention have already 
 sanctioned and agreed to the procedure of the Hague Court, 
 and it is mere redundance to repeat in a supplementary Con- 
 vention the first step in such procedure. The necessity of 
 laying the precise points in question before the arbitrators, 
 as before judges in our domestic Courts, is too obvious to 
 need to be argued. It is required in every system of judicial 
 procedure, and, in the nature of things, it is the first detail 
 to be settled, after the principle of arbitration itself has 
 been agreed to by the Parties. One might go further, and 
 say that this precise determination of the issue belongs to 
 all kinds of procedure. Thus it belongs to what in diplomacy 
 
APPENDIX V 189 
 
 are called the protocols of a question. Foreign offices are con- 
 stantly reducing matters of difference to writing, and whittling 
 them down to their simplest expression in ways binding on 
 their respective countries, without such protocols being con- 
 sidered as Treaties or Conventions. In short, if the second 
 Article had been omitted from the Anglo-French Treaty, it 
 would have made no change, seeing that it is included in the 
 general Convention, and if no such clause had been inserted in 
 the general Convention, diplomatic necessity and usage, in the 
 very nature of things, would have led the Governments before 
 they resorted to arbitration to define the precise issue to be 
 adjudicated upon, and any other details and procedure which 
 have necessarily to be determined in limine litis. 
 
 II. I submit that the mode of ratification cannot properly 
 figure among the contents of an International Treaty. It is 
 essentially a matter for internal legislation. Article III., in 
 stipulating that the Treaty shall be ratified by the President 
 of the United States hy and with the advice and consent of the 
 Senate thereof, imports into it an element foreign to the idea 
 of a Sovereign State. A State in its outward relations is 
 represented by its Executive alone. It is undesirable to 
 give foreign States the remotest justification for inquiring 
 into the legitimacy of the Executive in possession of the 
 direction of a nation's external action. 
 
 The introduction of the word " Treaty " instead of " Agree- 
 ment " would probably have made Parliamentary ratification 
 necessary by practicdly all States except Great Britain. Why, 
 however, should other nations be compelled, if they do not 
 wish to do so, to submit each individual act of reference for 
 Parliamentary ratification ? This shows how unquestionably 
 the subject of Parliamentary ratification is one affecting the 
 domestic relations of each contracting country exclusively. 
 
 III. But the difficulty, in spite of the suppression of 
 Article II., and of the ratification clause, might still subsist 
 in the view of a number of Senators, for whom the main 
 point appears to be that no reference whatsoever to arbitra- 
 tion shall be made without some kind of sanction by the 
 Senate. The point, I may mention, is not new. 
 
190 ADJUSTING INTERNATIONAL DISPUTES 
 
 In the Anglo-American Treaty of Arbitration of 1897 
 there was no such clause as Article II. The Senate, when 
 the Treaty was submitted for their ratification, added a clause 
 almost identically in the sense of the modification they have 
 made in the new Treaties. The proviso they added was : 
 " And any agreement to submit, together with its formula- 
 tions, shall in every case, before it becomes final, be com- 
 municated by the President of the United States to the 
 Senate with his approval, and be concurred in by two-thirds 
 of the Senators present." 
 
 It is seen that the Senate did not depart from the attitude 
 they assumed eight years before, and the question is how to 
 meet their requirements without touching the procedure of 
 the Hague Court under the existing Convention. 
 
 The matter belongs purely to the domain of domestic or 
 constitutional law, and I approach it with all the humility of 
 an outsider. The American Senate has a position in the 
 American polity quite different from that of any of the Upper 
 Houses in Europe. Its executive functions permit it to 
 exercise a check on the administrative authority in all external 
 matters, and it is no doubt jealous of any action which might 
 in the least diminish such powers. 
 
 With all deference, I submit that, in the enactment 
 ratifying the Treaty, the Senate might have inserted such 
 provisions as it deemed desirable for the restriction of the 
 Presidential Powers, It is surely possible to provide some 
 method of dealing with the details of a reference to arbitration 
 in secret executive sitting without dragging either the public 
 at home or abroad or the other Power or Powers concerned 
 into the discussion. I also humbly submit that it seems to 
 me, as an outsider, possible to require that the appointment 
 of the American arbitrators, in each individual case, shall be 
 laid before the Senate for its approval, under its constitutional 
 privilege of ratification of appointments in the Diplomatic 
 Service, Inasmuch as under the Hague Convention arbi- 
 trators are assimilated to chiefs of diplomatic missions, might 
 not the President and Senate agree that this assimilation be 
 recognised as between them ? 
 
VI 
 
 ARBITRATION CONVENTION BETWEEN THE 
 UNITED KINGDOM AND THE UNITED STATES 
 OF AMERICA 
 
 Signed at Washington, April 4, 1908 
 
 [Ratifications exchanged at Washington, June 4, 1908] 
 
 His Majesty the King of the United Kingdom of Great 
 Britain and Ireland and of the British Dominions beyond the 
 Seas, Emperor of India, and the President of the United 
 States of America, desiring in pursuance of the principles 
 set forth in Articles XV.-XIX. of the Convention for the 
 pacific settlement of international disputes, signed at the 
 Hague, July 29, 1899, to enter into negotiations for the con- 
 clusion of an Arbitration Convention, have named as their 
 Plenipotentiaries, to wit : 
 
 His Majesty the King of the United Kingdom of Great 
 Britain and Ireland and of the British Dominions beyond the 
 Seas, Emperor of India, The Right Honourable James Bryce. 
 O.M., and 
 
 The President of the United States of America, Elihu 
 Root, Secretary of State of the United States, 
 
 Who, after having communicated to one another their full 
 powers, found in good and due form, have agreed upon the 
 following Articles : 
 
 Art. I. — Differences which may arise of a legal nature or 
 relating to the interpretation of Treaties existing between the 
 two Contracting Parties and which it may not have been 
 possible to settle by diplomacy, shall be referred to the per- 
 
 191 
 
192 ADJUSTING INTERNATIONAL DISPUTES 
 
 manent Court of Arbitration established at the Hague by 
 the Convention of July 29, 1899, provided, nevertheless, that 
 they do not affect the vital interests, the independence or the 
 honour of the two Contracting States, and do not concern the 
 interests of third Parties. 
 
 Art. II. — In each individual case the High Contracting 
 Parties, before appealing to the permanent Court of Arbitra- 
 tion, shall conclude a special Agreement defining clearly the 
 matter in dispute, the scope of the powers of the arbitrators, 
 and the periods to be fixed for the formation of the Arbitral 
 Tribunal and the several stages of the procedure. It is under- 
 stood that such special Agreements on the part of the United 
 States will be made by the President of the United States, by 
 and with the advice and consent of the Senate thereof ; His 
 Majesty's Government reserving the right before concluding 
 a special Agreement in any matter affecting the interests of a 
 self-governing Dominion of the British Empire to obtain the 
 concurrence therein of the Government of that Dominion. 
 
 Such Agreements shall be binding only when confirmed 
 by the two Governments by an Exchange of Notes. 
 
 Art. III. — The present Convention shall be ratified by 
 His Britannic Majesty, and by the President of the United 
 States of America by and with the advice and consent of 
 the Senate thereof. The ratifications shall be exchanged at 
 Washington as soon as possible, and the Convention shall 
 take effect on the date of the exchange of its ratifications. 
 
 Art. IV. — The present Convention is concluded for a 
 period of five years, dating from the date of the exchange 
 of its ratifications. 
 
 Done in duplicate at the City of Washington, this fourth 
 day of April, in the year 1908. 
 
 (Signed) James Bryce. 
 (Signed) Elihu Root. 
 
VII 
 
 ANGLO-AMERICAN TREATY OF ARBITRATION 
 AND CONCILIATION 
 
 Signed at Washington, August 3, 1911 
 
 The United States of America and His Majesty the King 
 of the United Kingdom of Great Britain and Ireland and of 
 the British Dominions beyond the Seas, Emperor of India, 
 being equally desirous of perpetuating the peace, which has 
 happily existed between the two nations, as established in 
 1814 by the Treaty of Ghent, and has never since been inter- 
 rupted by an appeal to arms, and which has been confirmed 
 and strengthened in recent years by a number of Treaties 
 whereby pending controversies have been adjusted by Agree- 
 ment or settled by arbitration or otherwise provided for ; so 
 that now, for the first time, there are no important questions 
 of difference outstanding between them, and being resolved 
 that no future differences shall be a cause of hostilities between 
 them or interrupt their good relations and friendship ; 
 
 The High Contracting Parties have therefore determined, 
 in furtherance of these ends, to conclude a Treaty extending 
 the scope and obligations of the pohcy of arbitration adopted 
 in their present Arbitration Treaty of April 14, 1908, so as 
 to exclude certain exceptions contained in that Treaty and 
 to provide means for the peaceful solution of all questions of 
 difference which it shall be found impossible in future to 
 settle by diplomacy, and for that purpose they have appointed 
 as their respective Plenipotentiaries : 
 
 The President of the United States of America, the Honour- 
 
 13 
 
194 ADJUSTING INTERNATIONAL DISPUTES 
 
 able Philander C. Knox, Secretary of State of the United 
 States ; and His Britannic Majesty, the Right Honourable 
 James Bryce, O.M., his Ambassador Extraordinary and Pleni- 
 potentiary at Washington ; who, having communicated to 
 one another their full powers, found in good and due form, 
 have agreed upon the following Articles : 
 
 Art. I. — All differences hereafter arising between the High 
 Contracting Parties which it has not been possible to adjust 
 by diplomacy, relating to international matters in which the 
 High Contracting Parties are concerned by virtue of a claim 
 of right made by one against the other under Treaty or other- 
 wise, and which are justiciable in their nature by reason of 
 being susceptible of decision by the application of the principles 
 of law or equity, shall be submitted to the permanent Court 
 of Arbitration established at the Hague by the Convention 
 of October i8, 1907, or to some other Arbitral Tribunal as 
 may be decided in each case by special Agreement, which 
 special Agreement shall provide for the organisation of such 
 Tribunal, if necessary, define the scope of the powers of the 
 arbitrators, the question or questions at issue, and settle the 
 terms of reference and the procedure thereunder. 
 
 The provisions of Articles XXXVII.-XC, inclusive, of the 
 Convention for the pacific settlement of international disputes 
 concluded at the second Peace Conference at the Hague on 
 October 18, 1907, so far as applicable and unless they are 
 inconsistent with or modified by the provisions of the special 
 Agreement to be concluded in each case, and excepting Articles 
 LI II. and LIV. of such Convention, shall govern the arbitra- 
 tion proceedings to be taken under this Treaty. 
 
 The special Agreement in each case shall be on the part 
 of the United States by the President of the United States, by 
 and with the advice and consent of the Senate thereof. His 
 Majesty's Government reserving the right before concluding a 
 special Agreement in any matter affecting the interests of a 
 self-governing dominion of the British Empire to obtain the 
 concurrence therein of the Government of that dominion. 
 
 Such Agreement shall be binding when confirmed by the 
 two Governments by an exchange of Notes. 
 
APPENDIX VII 195 
 
 Art. II. — The High Contracting Parties further agree to 
 institute, as occasion arises and as hereinafter provided, a 
 Joint High Commission of Inquiry, to which, upon the request 
 of either Party, shall be referred for impartial and con- 
 scientious investigation any controversy between the Parties 
 within the scope of Article I. before such controversy has 
 been submitted to arbitration, and also any other controversy 
 hereafter arising between them, even if they are not agreed 
 that it falls within the scope of Article I. ; provided, however, 
 that such reference may be postponed until the expiration 
 of one year after the date of the formal request therefor, in 
 order to afford an opportunity for diplomatic discussion and 
 adjustment of the questions in controversy, if either Party 
 desires such postponement. 
 
 Whenever a question or matter of difference is referred to 
 the Joint High Commission of Inquiry, as herein provided, 
 each of the High Contracting Parties shall designate three of 
 its nationals to act as members of the Commission of Inquiry 
 for the purposes of such reference ; or the Commission may 
 be otherwise constituted in any particular case by the terms 
 of reference, the membership of the Commission and the terms 
 of reference to be determined in each case by an exchange 
 of Notes. 
 
 The provisions of Articles IX. to XXXVI., inclusive, of 
 the Convention for the pacific settlement of international 
 disputes concluded at the Hague on October 18, 1907, so 
 far as applicable, and unless they are inconsistent with 
 the provisions of this Treaty, or are modified by the terms 
 of reference agreed upon in any particular case, shall govern 
 the organisation and procedure of the Commission. 
 
 Art. III. — The Joint High Commission of Inquiry insti- 
 tuted in each case, as provided for in Article II., is authorised 
 to examine into and report upon the particular questions or 
 matters referred to it, for the purpose of facilitating the 
 solution of disputes by elucidating the facts, and to define 
 the issues presented by such questions, and also to include 
 in its report such recommendations and conclusions as may 
 be appropriate. 
 
196 ADJUSTING INTERNATIONAL DISPUTES 
 
 The reports of the Commission shall not be regarded as 
 decisions of the questions or matters so submitted, either on 
 the facts or on the law, and shall in no way have the char- 
 acter of an Arbitral Award. 
 
 It is further agreed, however, that in cases in which the 
 Parties disagree as to whether or not a difference is subject 
 to arbitration under Article I. of this Treaty, that question 
 shall be submitted to the Joint High Commission of Inquiry ; 
 and if all or all but one of the members of the Commission 
 agree and report that such difference is within the scope of 
 Article I. it shall be referred to arbitration in accordance 
 with the provisions of this Treaty. 
 
 Art. IV. — The Commission shall have power to administer 
 oaths to witnesses and take evidence on oath whenever 
 deemed necessary in any proceeding, or inquiry, or matter 
 within its jurisdiction under this Treaty ; and the High Con- 
 tracting Parties agree to adopt such legislation as may be 
 appropriate and necessary to give the Commission the powers 
 above mentioned and to provide for the issue of subpoenas 
 and for compelling the attendance of witnesses in the pro- 
 ceedings before the Commission. 
 
 On the inquiry both sides must be heard, and each Party 
 is entitled to appoint an agent, whose duty it shall be to 
 represent his Government before the Commission and to 
 present to the Commission, either personally or through 
 counsel retained for that purpose, such evidence and argu- 
 ments as he may deem necessary and appropriate for the 
 information of the Commission. 
 
 Art. V. — The Commission shall meet whenever called 
 upon to make an examination and report under the terms 
 of this Treaty, and the Commission may fix such times and 
 places for its meetings as may be necessary, subject at all 
 times to special call or direction of the two Governments. 
 Each commissioner, upon the first joint meeting of the Com- 
 mission after his appointment, shall, before proceeding with 
 the work of the Commission, make and subscribe a solemn 
 declaration in writing that he will faithfully and impartially 
 perform the duties imposed upon him under this Treaty, and 
 
APPENDIX VII 197 
 
 such declaration shall be entered on the records of the pro- 
 ceedings of the Commission. 
 
 The United States and British sections of the Commission 
 may each appoint a secretary, and these shall act as joint 
 secretaries of the Commission at its joint sessions, and the 
 Commission may employ experts and clerical assistants from 
 time to time, as it may deem advisable. The salaries and 
 personal expenses of the Commission and of the agents and 
 counsel and of the secretaries shall be paid by their respective 
 Governments, and all reasonable and necessary joint expenses 
 of the Commission incurred by it shall be paid in equal 
 moieties by the High Contracting Parties. 
 
 Art. VI. — This Treaty shall supersede the arbitration 
 Treaty concluded between the High Contracting Parties on 
 April 4, 1908, but all Agreements, Awards, and proceedings 
 under that Treaty shall continue in force and effect, and this 
 Treaty shall not affect in any way the provisions of the Treaty 
 of January 11, 1909, relating to questions arising between 
 the United States and the Dominion of Canada. 
 
 Art. VII. — The present Treaty shall be ratified by the 
 President of the United States of America, by and with the 
 advice and consent of the Senate thereof, and by His Britannic 
 Majesty. The ratifications shall be exchanged at Washington 
 as soon as possible, and the Treaty shall take effect on the 
 date of the exchange of its ratifications. It shall thereafter 
 remain in force continuously, unless and until terminated by 
 twenty-four months' written notice given by either High Con- 
 tracting Party to the other. 
 
 In faith whereof the respective Plenipotentiaries have 
 signed this Treaty in duplicate, and have hereunto affixed 
 their seals. 
 
 Done at Washington, the third day of August, in the year 
 of our Lord one thousand nine hundred and eleven. 
 
 Philander C. Knox. 
 James Bryce. 
 
VIII 
 
 TREATY OF ARBITRATION BETWEEN FRANCE 
 
 AND DENMARK 
 
 Signed August g, igii 
 
 (Translation) 
 
 The President of the French Republic and His Majesty 
 the King of Denmark, signatories of the Convention for the 
 peaceful settlement of international disputes concluded at 
 the Hague, October i8, 1907 ; 
 
 Whereas, by Article XL. of said Convention, the High 
 Contracting Parties have reserved unto themselves the right 
 to conclude Agreements " with the view of extending obli- 
 gatory arbitration to all cases that they shall judge possible 
 for submission thereto " ; 
 
 Whereas, the second Peace Conference was unanimous 
 in recognising in the Final Act the principle of obligatory 
 arbitration, and in declaring that certain disputes are sus- 
 ceptible to be submitted unreservedly to obligatory arbi- 
 tration ; 
 
 Have resolved to conclude a Convention establishing 
 these principles, and named as their Plenipotentiaries : 
 
 The President of the French Republic : M. Charles Prosper 
 Maurice Horric de Beaucaire, Envoy Extraordinary and 
 Minister Plenipotentiary of the French Republic to Copen- 
 hagen ; 
 
 His Majesty the King of Denmark : His Excellency, M. le 
 Comte Carl William Ahlefeldt Laurvig, his Minister of Foreign 
 Affairs ; 
 
APPENDIX VIII 199 
 
 Who, duly authorised, have agreed upon the following 
 Articles : 
 
 Art. I. — Differences of a juridicaJ nature, and, particularly, 
 those regarding the interpretation of Treaties existing between 
 the two Contracting Parties, which may hereafter arise between 
 them and not be settled by diplomacy, shall be submitted 
 to arbitration in the terms of the Convention for the peaceful 
 settlement of international disputes, signed at the Hague, 
 October 18, 1907, with the condition, however, that they affect 
 neither the vital interests, nor the independence nor the honour 
 of the one or the other of the Contracting States, and that 
 they do not affect the interests of third Powers. 
 
 Art. II. — Differences relating to the following questions 
 shall be submitted to arbitration, and the reservations men- 
 tioned, under Article I., shall not be invoked in regard to 
 them : 
 
 I. Pecuniary claims under the head of damages when the 
 principle of indemnification is recognised by the Parties ; 
 
 II. Contractual debts claimed against the Government of 
 one of the Parties by the Government of the other Party as 
 due to its citizens ; 
 
 III. The interpretation and application of conventional 
 stipulations relating to commerce and navigation ; 
 
 IV. The interpretation and application of conventional 
 stipulations relating to the following matters : 
 
 Industrial property ; 
 Literary and artistic property ; 
 
 International private law regulated by the Conventions of 
 the Hague ; 
 
 International protection of working men ; 
 
 Posts and telegraphs ; 
 
 Weights and measures ; 
 
 Sanitary questions ; 
 
 Submarine cables ; 
 
 Fisheries ; 
 
 Gauging of vessels ; 
 
 White slave traffic. 
 
 In differences relating to the matters referred to in No. IV. 
 
200 ADJUSTING INTERNATIONAL DISPUTES 
 
 of the present Article, and over which, according to the 
 territorial law, the judicial authority has jurisdiction, the 
 Contracting Parties have the right to submit the dispute 
 to arbitration only after the national jurisdiction has given 
 a final decision. The arbitral decisions rendered in the 
 cases referred to in the preceding paragraph shall have 
 no effect upon anterior judicial decisions. The Contracting 
 Parties pledge themselves to take, or, in case of need, propose 
 to the legislature, the necessary measures, so that the inter- 
 pretation given by the arbitral decision in the cases referred 
 to above may, in fact, be binding upon their Tribunals. 
 
 Art. III.^ — In each special case the High Contracting 
 Parties shall sign a special protocol (compromis) clearly 
 indicating the subject of the dispute, the scope of the power 
 of the arbitrators, the procedure and the time limits to be 
 observed in regard to the operations of the Arbitral Tribunal. 
 The Contracting Parties agree to confer upon the Arbitral 
 Tribunal defined in the present Convention the power to decide, 
 in case of disagreement between themselves, if a difference 
 which has arisen between them belongs to the category of 
 differences to be submitted to obligatory arbitration in con- 
 formity with Articles I. and II. of the present Convention. 
 
 Art. IV. — If within the year that follows the notification 
 by the more diligent Party of a project of protocol (com- 
 promis) the High Contracting Parties are not successful in 
 reaching an agreement regarding the measures to be taken, 
 then the permanent Court shall be competent to draw up 
 the Agreement. Application for such purpose may be 
 made by only one of the Parties. The protocol (compromis) 
 shall be settled in conformity with the provisions of Articles 
 LIV. and XLV. of the Convention of the Hague for the 
 peaceful settlement of international disputes of October i8, 
 1907. 
 
 Art. V. — The present Convention is concluded for the 
 period of five years, and shall run on for like periods of five 
 years, dating from the exchange of the ratifications, unless 
 notice to the contrary be given. 
 
 Art. VI. — The present Convention shall be ratified as 
 
APPENDIX VIII 201 
 
 early as possible and the ratifications thereof exchanged at 
 Copenhagen. 
 
 Done at Copenhagen in duplicate, August g, 1911. 
 
 (L.S.) HoRRic DE Beaucaire. 
 
 (L.S.) C W. Ahlefeldt Laurvig. 
 
INDEX 
 
 Adams, Charles Francis, 41 
 
 Africa, Central, 24 
 
 Aggression against weak States, 
 
 122 
 Alabama case, 7, 8, 40 et seq. 
 
 — Rules and Hague Neutrality 
 
 Convention, 41 
 Alaskan award, 8 
 Alexander i. (Russia), 35 
 Alverstone, Lord, 43, 45 
 Amphictyonic Council, 33 
 Anglo-American Convention 
 
 (i8i8),77 
 
 — Treaty negotiations (1896), 45 
 
 — Arbitration Treaty of 1904, 
 
 note upon, 182 et seq. 
 i9o8(text), 188 
 
 — Treaty of Arbitration and Con- 
 
 ciliation, 191 1 (text), 190 et 
 seq. 
 Anglo-French Arbitration Agree- 
 ment, 1903, 52 
 
 — — Treaty, 1903 (text), 182 et 
 
 seq. 
 
 — Treaty as model examined, 107 
 
 et seq. 
 Anglo-Russian Declaration relat- 
 ing to Doggerbank incident 
 
 (text), 95 
 Anglo-Saxon progress in pacific 
 
 methods, 6 
 Arbitral Justice, Court of, 80 et 
 
 seq., 90 
 
 — Convention (proposed) re- 
 lating to (text), 159 et seq. 
 
 Arbitration, Anglo - American 
 Treaty of (191 1). f>'\ et seq. 
 
 — Franco-Danish Treaty of, 62 
 
 et seq., 68, (text) 195 et seq. 
 
 — Conventions relating to (since 
 
 1903), 106 
 
 — Court and Court of Law dis- 
 
 tinguished, 51 
 
 Arbitration and expediency, 85 
 
 — Hague Convention relating to, 
 
 51. (text) 135 et seq. 
 
 — and injustice, 85 
 
 — model drafts for general 
 
 Treaties of, 114 et seq. 
 
 — Treaties of unlimited scope, 62 
 
 — Treaty, Anglo-American (1897), 
 
 45 et seq., (text) 176 et seq. 
 
 — and war, 84 
 
 Argentina-Chile Treaty of Arbitra- 
 tion, 109 
 
 Argentine Republic, 7 
 Armaments, paradox of increas- 
 ing, 129 
 
 — reduction of, examined, 133 
 
 — restriction of, between Argen- 
 
 tina and Chile, 1 10 
 Autocracy v. Democracy, 130 
 
 Balance of Power, 36, 105 
 
 Balkan War, 28 
 
 Behring Sea Seal Fisheries case, 42 
 
 Bcichmann, Dr., yj 
 
 Belligerent statements of griev- 
 ances, 28 
 
 Bismarck and Ems dispatch, 3 
 
 Bluntschli, Professor, 125 
 
 Boer War, public opinion in, 4 
 
 Brewer, Mr. Justice, 42 
 
 Bryan, Secretary, 99 
 
 Brycc, Lord, on " national hon- 
 our," 60 
 
 Canevaro arbitration case, 72, 83 
 Carnegie, Mr. Andrew, 39, 89 
 Caroline Islands question (1885), 
 
 25 
 Carthage arbitration case, 73, 83 
 Casablanca deserters' arbitration 
 
 case, 72, 76 
 Chile and Argentina, 25 
 Choate, Mr. Joseph, 89 
 
204 
 
 INDEX 
 
 Cobden, 48 
 
 Cockburn, Lord Chief Justice, 41 
 
 Commissions of Inquiry, Inter- 
 national, 92 et seq. 
 
 Compulsory general Treaty, 
 draft of, based on Franco- 
 Danish model, 114 et seq. 
 
 draft of, based on Anglo- 
 American model, W] et seq. 
 
 — Treaties of Arbitration grouped, 
 
 106 
 Concert of Europe, 37, 105 
 
 — European, recommended, 134 
 Conciliation distinguished from 
 
 arbitration, 124 
 
 Conflicts of a non-juridical char- 
 acter, 122 
 
 Consular service, how composed, 
 
 19 
 Court of Arbitral Justice, 86 et seq. 
 Court, Prize, International, 89 
 Convention relative to 
 
 (text), 167 
 Courtesy, practice of, 16 
 Czar Nicholas, appeal of, against 
 
 armaments, 131 
 
 Delcass6, M. Th., 20, 185 
 Differences, international, varie- 
 ties of, 10 
 Diplomacy, \b et seq. 
 
 — unskilful, danger of, 14 
 Diplomatic machinery, 5 
 
 — service, how composed, 18 et 
 
 seq. 
 
 — intercourse, advice of Sir E. 
 
 Malet concerning, 21 
 Doggerbank incident, 94 et seq. 
 Drago, Dr., 77 
 Dreyfus affair and public opinion, 
 
 4 
 
 Dufferin, Lord, 21 
 
 Dutch-Danish Treaty of Arbitra- 
 tion, III 
 
 Efficiency t>. Population, 130 
 
 England and Egypt, 8 
 
 England's foreign policy, prob- 
 lems of, 14 
 
 Expediency supplementary to 
 justice, 123 
 
 Fashoda incident, 14 
 Feudal system, 34 
 Fitzpatrick, Sir Ch., 77 
 
 Flag, British, follows trade, 13 
 Foreign Office Departments, 17 
 
 — offices, objects of, 16 
 
 — secretaries, personal interviews 
 
 of, ig 
 
 France and Morocco, 8 
 
 Franco-Danish Treaty of Arbitra- 
 tion (191 1), 113, (text) 195 et 
 seq. 
 
 Freeman quoted, 33 
 
 Fuller, Chief Justice, 42 
 
 Geneva Convention, 92 
 
 Good offices, 16 et seq. 
 
 and mediation distinguished, 
 
 23 
 " Grand Design," 34 
 Granville, Lord, reticence of, in 
 
 1894. 3 
 Gray, Judge George, 77 
 Great Powers and minor States, 
 
 Treaties between, 112 
 Grey, Sir Edward, viii, 20, 123 
 Grievances, statements of, 28 
 
 Hague, centralisation of peace 
 methods at, 71 
 
 — Conference, first, object of, 121 
 
 — Conferences (1899 and 1907), 
 
 value of, vii 
 
 origin of, 38 
 
 • and mediation, 26 
 
 — Convention for the pacific 
 
 settlement of international 
 disputes (text), 135 ei seq. 
 
 — Court, meaning of, 70 
 
 enumeration of cases tried 
 
 by, 72 
 proceedings, costliness of, 
 
 S3 
 
 tentative character of, 71 
 
 Hague Court, cases tried before — 
 pious funds case, 73 
 Venezuela preferential claims 
 
 case, 74 
 Muscat dhows case, 75 
 Japanese house-tax case, 75 
 Swedo-Norwegian frontier case, 
 
 76 
 Casablanca case, 76 
 North Atlantic Fisheries case, 
 77 
 
 Orinoco ss. Co. case, 80 
 Savarkar case, 81, 85 
 Canevaro case, 83 
 
INDEX 
 
 205 
 
 Hague Court, cases tried before — 
 Carthage and Alanouba cases, 
 
 Turco-Russian case, 83, 85 
 
 Tavignano caso, 84 
 Hahnke, Field-Marslial von, 127 
 Hammerskjold, Dr., 77 
 Henn Collins, Lord Justice, 42 
 High-handed proceedings popular, 
 
 21 
 Hoek, Dr., 79 
 Holy Alliance, 35 
 
 — Roman Empire, 35 
 Honour clause, origin of, 97 
 
 Immunity, diplomatic, 11 
 Imprudent utterances, 21 
 Institute of International Law, 
 
 125 
 International Commissions of In- 
 quiry, 92, et seq. 
 
 — Prize Court, 89 
 
 — Convention relating to, (text) 
 
 167 
 
 — differences, varieties of, 10 
 Inter-Parliamentary Union, 113 
 Inter-State intercourse, how con- 
 ducted, 19 
 
 Intervention defined, 23 
 
 Italian Balance of Power in past, 
 
 36 
 
 — ultimatum to Turkey (191 1), 67 
 Italo-Argentine Treaty of Arbitra- 
 tion (1896), 49, no, 112 
 
 Italo-Dutch Treaty of Arbitration, 
 
 112 
 Italy and Turkey, 8 
 
 Japan under treaty of Yeddo 
 
 (1858), 24 
 Japanese house-tax arbitration 
 
 case, 72, 75 
 Joint Commissions, 49 
 Justice, difl&culty of applying, to 
 
 international differences, 122 
 
 — explanation of shortcomings 
 
 of, 90 
 
 — in settlement of disputes, 91 
 
 Kiderlen-Waechter's reticence 
 
 in Morocco settlement, 4 
 Knox, Secretary, 90 
 
 Labrador, 77 
 Lammasch, Professor, 77 
 
 Lansdowne, Lord, 20, 27 
 Lecky quoted, 126 
 Loetf, Dr., 77 
 Lorimer, Professor, 43 
 Loubet, President, 20 
 
 Malet, Sir Edward, quoted, 20 
 Manouba arbitration case, 73, 83 
 Martens, F. de, 43 
 Mediation, 16 et seq. 
 
 — defined, 23 
 
 — difficulties of, 26 et seq. 
 
 — ■ as a contractual injunction, 32 
 - — under Hague Convention, 28 
 
 — at present mere adjunct of 
 
 diplomacy, 32 
 
 — failure of, in present war, 31 
 
 — and Hague Conferences, 26 
 
 — Lord Lansdowne on, 27 
 
 — - under Treaty of Paris (1856), 24 
 — of Berlin (1885). 24 
 
 — unofficial, between Ministers, 
 
 30 
 
 — scheme of automatic, 29 
 
 Ministers of State, incautious 
 utterances of, 21 
 
 Minor States, Treaties of Arbitra- 
 tion between, 109 et seq., 112 
 
 Moltke, 125 
 
 Morison, Mr. Donald, 79 
 
 Morocco incident, 14 
 
 Mukden, battle of, 97 
 
 Muscat dhows arbitration case, 
 72, 75 
 
 " National honour," 56 et seq. 
 
 Lord Bryce on, 60 
 
 Newfoundland, 77 
 Nietzsche quoted, 125 
 North Atlantic Fisheries arbitra- 
 tion case, 72, 77 
 
 — Sea Fisheries Convention (1882), 
 
 80 
 
 Official traditions of England, 
 
 13 
 Olney, Mr. Richard, 45 
 Open-door policy of England, 13 
 Orinoco ss. Co. arbitration case, 
 
 72, 80 
 
 Pauncefote, Lord, 45 
 Pax romana, 34 
 
 Peace Conference, Russian pro- 
 ject of, 59 
 
206 
 
 INDEX 
 
 Peaceful methods and federation 
 distinguished, 33 
 
 Pious funds (Mexico) arbitration 
 case, 72, 73 
 
 Pope and mediation, 25 
 
 Popular feehng, wars and, T4 
 
 Portuguese pious funds arbitra- 
 tion case, 73 
 
 Prize Court, International, Hague 
 Convention relating to (text) , 
 167 et seq. 
 
 Protocol of submission to arbitra- 
 tion for minor cases, sug- 
 gested model of, 53 
 
 Public opinion, action and re- 
 action of, 3 
 
 and war, i 
 
 in different countries, 3 et seq. 
 
 in town and country, 5 
 
 Ratification, mode of, domestic 
 question, 186 
 
 Roosevelt, President, 27 
 
 Root, Mr. Elihu, 87 
 
 Rouard de Card, 43 
 
 Russell of Killowen, Lord, 42 
 
 Russia and Persia, 8 
 
 Russo-Japanese War and media- 
 tion in, 27 
 
 Russo-Turkish arbitration case, 
 72,83 
 
 Salisbury, late Lord, 68 
 
 arbitration proposals of, 45 
 
 et seq. 
 preoccupations of, in Fas- 
 
 hoda incident, 3 
 views of, on Anglo-American 
 
 arbitration, 56 et seq. 
 Salvador Treaty based on Wilson - 
 
 Bryan plan (text), loi 
 San Giuliano, Marquis di, 67 
 Sasonow, M., 20 
 
 Savarkar arbitration case, 72, 81 
 Savornin-Lohman, Dr., 77 
 Scott, Dr. James B., 89 
 Serbian reply to Austro-Hun- 
 
 garian ultimatum, 123 
 Settlement of disputes and 
 
 justice, 91 
 St vis pacem para bellum ex- 
 amined, 128 
 Smith, Dr. Hugh, 79 
 
 South American States and 
 pacific methods, 7 
 
 general Treaty of Arbitra- 
 tion (1902), III 
 
 Treaty and model clause, 118 
 
 Statecraft, contemporary, 129 
 
 Statesmen and public opinion, 3 
 
 Sully, 34 
 
 Swedo - Norwegian frontier ar- 
 bitration case, 72, 76 
 
 Swiss confederation, 35 
 
 Tavtgnano arbitration case, 73, 84 
 Thirty Years' War, 35 
 Timor arbitration case, 73 
 Tolstoi, public opinion and, 5 
 Treaties and Agreements dis- 
 tinguished, 186 
 
 — of reference, compulsory, 104 
 
 et seq. 
 Treaty of Arbitration, Anglo- 
 American (1897), fa-t^ of, 50 
 
 — of Paris (1856), 24, 37 
 " Truce of God," 34 
 Turco-Italian War, 28 
 Turkey, public opinion in, 4 
 
 United States Constitution, 50 
 
 Supreme Court, 88 
 
 and Great Britain, differ- 
 ences between, 6, 7 
 and Japan, 25 
 
 Venezuela preferential claims 
 
 arbitration case, 72, 74 
 Venezuela-Guiana boundary case, 
 
 23, 42 
 Virtues, alleged, of war, 125 
 Vital interests, 56 et seq. 
 Voltaire's Pangloss, 125 
 
 War, alleged virtues of, 125 
 
 — danger of, to neighbouring 
 
 States, 22 
 
 — at all times latent, 9 
 
 — popularity of, i 
 
 — present, and failure of peace 
 
 methods, vii 
 
 and mediation, viii 
 
 Wars without arbitrable matter, 
 
 84 
 Wilson-Bryan plan, 99 et seq. 
 Wilson, President, 99 
 
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