I EXTENSION OF THE SCOPE OF ARBITRATION TREATIES AND OF THE JURISDICTION OF THE HAGUE COURT THE "International Convention for the Pacific Settlement of International Disputes," signed at The Hague on July 29, 1899, provided only for voluntary or optional arbitration. All idea of compulsion, in fact, was specifically excluded throughout the Convention. Thus the signatory Powers undertook, in case of grave disagreement or conflict, before appealing to arms, only "as far as circumstances allow," to have recourse to the good offices or mediation of one or more friendly Powers; and, only "as far as circumstances allow," were the Powers to tender their good offices. Provision was made, "as far as circumstances allow," and where involving "neither national honour nor vital interests," for international commissions of inquiry which were even to have no binding character for the parties, etc. Under the subsequent Anglo-French Treaty, the contracting States obliged themselves to submit to The Hague Court "differences of a judicial order, or relative to the interpretation of existing treaties," on condition that "neither the vital interests nor the independence or honour of the two contracting States, nor the interests of any State other than the two contracting States, are involved." This formula has been followed in the treaties with other States entered into by Great Britain and France. 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 contention that the matter at issue is vital or involves national honour, can set it aside. By referring such cases 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. Though States seem no longer reluctant to resort to The Hague Court, and public opinion has come to view it with in creasing favour, and several important cases have already been submitted to it, no progress has been made towards compulsory arbitration as a pacific means of settling questions of vital interest as between any Great Powers. The new Hague Conference, in dealing with the question of extending the scope of arbitration will have to bear in mind that a Treaty of Arbitration, to completely fulfil its purpose of avoiding any break in the amicable relations between States, must be, at the same time, general, obligatory, and automatic. It must be general, because its purpose may be defeated if, when the crisis comes, one or the other party can dispute the applicability of the treaty to the matter at issue. It must be obligatory, because if it is not, a treaty of submission must be negotiated at the worst possible moment for negotiations, namely, at a moment when the state of national feeling may threaten to suspend negotiations altogether. For the same reason it must be automatic. In short, the operation of the treaty, if it is to serve the cause of peace in times of great emergency, must be instantaneous. The jurisdiction which has failed must ipso facto be succeeded by the new jurisdiction, with its new men and its new methods. Different systems have been adopted by several secondary States for the reference of all difficulties without distinction to arbitration. The one, as in the Chili-Argentine Treaty of May 28, 1902, refers them to a specified independent Government (in the case of the Chili-Argentine Treaty, to the British Government, and in default of the British to the Swiss Government). In the unratified treaty of July 25, 1898, between Italy and the Argentina, it was provided that the arbitral tribunal should be composed of three judges, two appointed by the parties and an umpire chosen by the two judges so appointed; in case of disagreement, the umpire to be appointed by an independent State; in case of disagreement as to the State, to be appointed by the President of the Swiss Confederation, and in his default by the King of Sweden: arbitrators not to be citizens of either contracting party, nor residents on the territory of either party. The system adopted in the unratified treaty of Jan. 11, 1897, between Great Britain and the United States, also covered all cases of difficulty between the parties, but in other respects rested on totally different principles. There were to be three classes of arbitration tribunals. For questions of indemnity up to £100,000 three arbitrators were to be necessary. When nore than that sum was in dispute, five arbitrators were to be called in. For territorial or national questions of supreme importance, six arbitrators were made necessary. If the arbi trators found it impossible to form the required majorities, a friendly Power was to be called in to mediate. The chief clauses in the Treaty were Article VI. and Article VII. Article VI. was as follows: “Any controversy which shall involve the determination of territorial claims shall be submitted to a tribunal composed of six members, three of whom shall be Judges of the British Supreme Court of Judicature, or members of the Judicial Committee of the Privy Council, to be nominated by Her Britannic Majesty, and the other three of whom 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 prescribed 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 invited by one or both of the high contracting parties." Article VII. provided for decision by a tribunal, similarly composed, of "all questions of principle of grave general importance affecting the national rights of either State, as distinguished from the private rights whereof it is merely the international representative." 1 These provisions were based on the following "HEADS OF A TREATY FOR ARBITRATION IN CERTAIN CASES," drawn up by Lord SALISBURY and enclosed in a communication from him to Sir JULIAN PAUNCEFOTE, dated March 5, 1896:"1. Her Britanni: 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, can not be settled by negotiation, 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 umpire upon any interlocutory question 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 officers 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 agree. ment or otherwise; all claims for damages or indemnity under the said amount; all questions affecting diplomatic or Consular privileges; ail 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 in respect to a question of fact, or of international 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 £100,000, 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 limited, it shall be final. "5. Any difference which, in the judgment of either Power, materially 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 stipulation 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." See Lord Alverstone, who, as then legal adviser of the Crown, was connected with the drafting of the scheme, on Lord Salisbury's warm support of the Anglo-American treaty. (Report of International Law Association, Glasgow Meeting, 1901.) The essential point in this project was that for questions of supreme national importance the arbitrators were to belong exclusively to the two contracting States. The idea which had until then prevailed in the constituting 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 requisite impartiality for the pure and simple application of principles of justice. It was thought that nations could only apply as between themselves the same principles as they adopt for litigation between citizens. It may be said that the word "arbitration," in connection with these provisions, is to some extent a misnomer. The Treaty is called a Treaty of Arbitration, and the Tribunal provided for in Art. VI. is called an "Arbitral Tribunal." There is not, however, much difference between such a Tribunal and a Joint Commission. Be that as it may, it was instituted to meet the difficulty of bringing grave national issues within the operation of an Arbitration Treaty. It was felt that such issues could not be committed to the decision of foreign arbitrators, or of a foreign umpire. The negotiators of the Treaty, therefore, provided that there should be neither outside arbitrators nor any umpire at all. Furthermore, to allay fears that any great national interest might be exposed to quixotic or unpractical views taken by any single judge, it was provided that, to be binding, the decision should require the concurrence against it of two out of three of the judges of either party. This precluded, by a simple and practical method, for both countries, any danger of decisions being arrived at which might shake the confidence of national opinion. The object of the two Governments was manifestly to provide a further stage of 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 have almost invariably been successful in settling the matters referred to them. 1 In the Alaskan [boundary case, the Commission was composed of three British and three American commissioners, the decision of a bare majority of whom was to be final. It cannot be denied that the provisions in question are based on a reasonable view of the difficulties which beset arbitration in the minds of statesmen, where national questions of vital importance are involved. It embodies, as President Cleveland said of it, a "practical working plan" for bringing delicate matters within a general Treaty. On the other hand, The Hague Convention has dealt with all matters but this very class, which was excluded from the purview of the Conference, and, as regards all others but this class, reference to The Hague Court is fast being made compulsory. Then all that seems needful to complete the work done at The Hague, is to generalise the compulsory clause since adopted by most States for all judicial questions not involving vital interests and national honour, and to graft upon it some such provisions as those contained in the AngloAmerican Treaty, that is, confining the choice of arbitrators, where the question is of vital importance or involves the national honour, to persons exclusively of the nationality of the States concerned, the question to be tried, like all other cases, at The Hague Court. This need not, of course, exclude any States from, as some have already done, adopting arbitration in the ordinary sense without any exceptions; and the time may come when all nations will have sufficient confidence in each other to trust the final decision of matters of vital interest to the decision of third parties. Meanwhile the principle of the Anglo-American Treaty of 1897 might be adopted by those States which are disinclined to extend the scope of arbitration properly so called.1 1 See suggested form of treaty, p. 145. The model Arbitration Treaty, recently adopted by the Interparliamentary Union, is based on an ingenious idea. After excepting from its operation questions affecting the independence or vital interests or sovereign authority of the respective States, it sets out a long list of matters, as to which the contracting States agree not to raise the exception. The advantage of this system is that it provides the means of adding to the scope of arbitration without altering the conditions of the agreement. The proposed form is much to be preferred to the existing common (i.e. AngloFrench) form. As it does not touch vital questions, it is in no sense an alternative to the form relating to vital interests set out in this volume.2 2 Page 148. The scope of The Hague Convention was de facto extended, in respect of Commissions of Inquiry, by the Anglo-Russian Declaration appointing the North Sea Incident Commission. |