Page images

and international tribunal? If not thus adjudicated, they must be pressed upon ex parte evidence, and without a fair examination. Under the protocol of one of the mixed claims commissions of 1902, the claimants demanded $8,100,000; and received by the awards of the Commissioners only $668,000, or less than one-twelfth of the sum demanded! 27 In another case $418,881 was awarded and claims for $998,000 were rejected. In another case £66,238 was allowed in awards by agreement, claims to the amount of £1,296,419 were referred to the Umpire, and of this sum £120,000, or less than onetenth, was finally allowed by him.28

Without assuming the absolute correctness of these awards, it is evident that such results demonstrate the enormous risk of flagrant injustice in employing the armed forces of a sovereign state in the collection of international claims without previous resort to judicial methods in determining the equities involved. There is no nation that would not feel the shame and humiliation of such an exercise of arbitrary power if applied to itself, or the loss of dignity and selfrespect on the part of its own government in thus extorting the payment of unfounded claims in behalf of their fellow citizens from a feebler nation. When it is added that such methods of procedure may easily furnish the excuse for unwarranted political intervention, and become the occasion of serious complications between different powers in defending the pretensions of their subjects or citizens, it is apparent that it may give rise to even greater evils than the immediate violation of equity. It cannot be doubted that after public attention has been sufficiently directed to this subject the statesmen of all nations will recognize the importance of an international agreement regarding it. Whatever may ultimately be found to be the best method of enforcing the payment of such debts, when their reality, nature, and amount have been judicially determined, it is evident that no merely pecuniary claim should ever be enforced without previous judicial examination before a neutral tribunal, and that this whole class of international differences may properly be referred to arbitration.

It is interesting to note that the Second Peace Conference at The

"See Ralston's Report. Washington, 1906.

"See Darby, Modern Pacific Settlements, p. 143.

Hague, as indicated by the official programme, will be almost entirely of a juristic character. It will differ from all non-official congresses of jurisprudence, however, in being a political conference so far as its authority is concerned. It will thus celebrate the happy marriage of juristic science and governmental sanction, and the full meaning of this for the progress of civilization should not be left in obscurity. Hitherto, in their various scientific institutes and associations, jurists have been striving to work out abstract problems of international justice with slight practical encouragement on the part of the governments. Now the jurists and the diplomatists are to work together under the direction of the governments, and with their authority, for the perfection of positive law to be sanctioned by solemn conventions. This is the really encouraging feature of the international movement initiated at The Hague. However much or however little may be accomplished at this time, the vital point is that the movement thus begun shall not be arrested. If it is to be solidly enduring, it must not attempt too much at one time. The chief aim of jurists and the lovers of peace throughout the world should be to encourage the perpetuation of the one agency which can most effectively substitute judicial procedure for military action in the settlement of international disputes. The point d'appui offered by the existing Hague Conventions is the one real and definite ground of hope that this result may gradually be accomplished. If the conference can be made periodic, the tribunal placed above all national politics, and a determination reached to refer to it all questions of a purely juridical nature, that will have been done for the society of nations which has already been done in every well ordered state for its individual citizens.

The fundamental difficulty in realizing this ideal is the absence of faith in the decisions which such an international court might render. The same human deficiencies and imperfections that embarrass the adjustment of international disputes by diplomatic procedure tend to prevent their settlement by judicial methods. It is not unnatural that sovereigns and ministers of State should have more confidence in their own sense of justice than in the decisions of strangers, each of whom may be influenced by considerations of personal interest or national policy. What is most needed, therefore, to crown the system

- a body

of arbitration is a tribunal above reproach or suspicion, of men rendered superior to self-interest in their decisions by ample remuneration, security of position, and the sense of professional responsibility.

Personal honor and integrity are the pride and characteristics of an independent judiciary. These, however, are not the qualities most difficult to secure in an international tribunal; for international jurisprudence is a field apart, and its requirements are sui generis. The ideal international judge would be a man with the habit of mind of the jurist and the accomplishments of a trained diplomatist,

a combination that is difficult to find. He should have the training that forms the mind of the lawyer, without being fettered by the technicalities of any form of municipal law or procedure. He should have the intimate knowledge of international relations of the accomplished diplomatist, without the spirit of intrigue and temporary compromise. A natural sense of equity, total freedom from national prejudice, and innocence of mind as respects technicalities, combined with independent creative intelligence in applying the norms of international conduct, are qualities that would be immensely serviceable in rendering decisions that would stand the test of time and be adapted to become the source of universal doctrines; for it must be remembered that, in the absence of codes and statutes and even of sound precedents, the international judge must become the chief factor in the further development of international law. Nor would the philosophical jurist, disposed to apply to international relations a rigid preconceived system, be more acceptable than the technical lawyer or the mere diplomatist; for international development follows its own laws, which cannot be set aside by any theory. The problem that seems so simple to the superficial observer deepens as we attempt to solve it; and we find ourselves confronted with forces, psychological as well as material, that conform to no man's will and follow the direction of no man's thought. (When all the nations have consented to settle their disputes by judicial methods and the most perfect conceivable international tribunal has been organized, there will still remain to be solved the perennial problem of justice, - the most august, the most pressing, and the most difficult of all the tasks intrusted to mortal men.)



The Argentine Republic, like all America, was deeply moved by the military steps taken by England, Germany and Italy in the month of December, 1902, against Venezuela for the settlement of claims of various sorts. Among these claims, arising some from special contracts and others from material injuries sustained by the subjects of the nations mentioned in the revolutionary commotions and civil wars of the unfortunate Republic, was made to figure the collection of the deferred interest on the foreign public debt, outstanding in the form of bonds issued by the Venezuelan government for the construction of railways and other public works. The coercive measures adopted assumed at one time a character of extreme violence, the Powers going so far as to seize the Venezuelan fleet, bombard the cities of La Guerra, Puerto Cabello and Maracaibo and establish a rigorous blockade of the coast.2

It was at this moment of veritable consternation for America that the Argentine Republic sent to its Minister in Washington the note of December 29, 1902, that has given rise to most important controversies and debates, which now, after the lapse of so long an interval, are far from exhausted.3

That document had for its principal object to call the attention of the government of the United States to the menace to the peace and security of this continent that was involved in the conduct of the


This article is translated from the Spanish.

'The antecedents in fact and the diplomatic negotiations that originated the Venezuelan conflict can be studied in Drago's "La Republica Argentina y el caso de Venezuela," page 312 et seq., where the documents published officially in "Papers Relating to the Foreign Relations of the United States," 1903, are reproduced.

The Argentine note is found in Drago's "La Republica Argentina y el caso de Venezuela," Buenos Aires, 1903; Drago's "Cobro Coercitivo de deudas publicas," Buenos Aires, 1906, and in "Papers Relating to the Foreign Relations of the United States," 1902.

Powers engaged in the Venezuelan campaign, which Powers had consulted that government before undertaking it. Though essentially diplomatic in character, the Argentine note briefly discussed the principles that pertained to the forcible collection of public debts arising from government loans.


The pecuniary claims of one state against another may technically be grouped in various classes according to their origin. Some times they arise from crimes or offenses and from injury or prejudice sustained by the subjects of one nation and emanating from the illegal act of the government or citizens of another; or they may be the result of purely contractual obligations between the subjects of the claimant country and foreign authorities. The constitution and local laws of the different states, the organization and mechanism of its judiciary determine the form of procedure to be followed in every case, there being but a single rule as yet admitted in international law, to wit: that local remedies must be exhausted in the case of contracts, real or implied, and crimes before recourse may be had to action through diplomatic channels. And some times even in this respect concessions have to be made in the interests of peace and international harmony. "It is clearly absurd," said Lord Salisbury, " to lay down that every state with which you have dealings shall come up to your own standard in the certainty and promptitude of the punishment of crime."

In regard to purely conventional obligations the subjects of a country that make contracts with a foreign government enter into definite relations to it, in respect of the properties in question, which creates perfectly defined reciprocal obligations. The government in this case acts as an ideal or judicial person, competent to assume the bond which it thus takes upon itself. It does not in reality act in its character of a sovereign power, but as a party to a bi-lateral

[ocr errors]

Essays by the late Marquis of Salisbury. Foreign Politics, page 161, London, 1905. In respect of the injury done by civil wars — revolutions — nothing better can be found than the exposition of Prof. F. Martens, in his pamphlet entitled "Par la Justice vers la Paix," St. Petersburg, 1904, which he dedicated to the Argentine note, and for whose generous appreciation the author of these lines cannot show sufficient gratitude. See page 13 op. citada.

« PreviousContinue »