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ARBITRATION,
weighed upon all nations with a view of putting an end to their progressive development.” This circular was shortly followed by another setting forth a preliminary draft programme for the Conference, which embraced not only the reduction of armaments and the more humane conduct of warfare, but also “the employment of good offices of mediation and arbitration in cases lending themselves thereto.” The Conference met on 18th May 1899 at the Hague, and was attended by delegates from nineteen states under the presidency of Baron de Staal, the Russian ambassador at London. Other well-known delegates were Sir Julian Pauncefote (afterwards Lord Pauncefote), British ambassador at Washington; Mr Seth Low, president of Columbia University, New York; M. Leon Bourgeois, ex-premier of Franee, Count Munster, German ambassador at Paris. The Conference was divided into two sections, the province of the first being to deal with the limitation of armaments ; of the second, with the laws of warfare ; of the third, with mediation and arbitration. At one of the early sittings of the third section (over which M. Bourgeois presided), Baron de Staal produced a draft convention for rendering arbitration compulsory in certain cases and optional in others. Under the compulsory class were ranged disputes relating to pecuniary damages sustained by a state owing to the illegal or negligent action of another state—disputes relating to the interpretation of postal, telegraph, and railway conventions, of conventions relating to the navigation of international rivers, and divers other ‘ matters. To this convention (officially described as the “Russian project”) was appended a draft code of procedure closely resembling that under which the Venezuelan arbitration was at that moment being conducted in Paris. Sir Julian Pauncefote took a bolder line. He urged, in a few pithy sentences, the importance of organizing a permanent international tribunal, the services of which might be called into requisition at will, and produced to the committee a short sketch of the mode in which such a tribunal might be set up. His proposition met with general acceptance, and the committee then proceeded to settle the necessary details for carrying it out, adopting in the main the code of procedure which had been suggested by Russia. The result was embodied in twenty-seven articles, of which only the most important can be noted here. (Art. 23) Each of the signatory powers is to designate within three months from the ratification of the Convention four persons at the most, of recognized competence in international law, enjoying the highest moral consideration, and willing to accept the duties of arbitrators. Two or more powers may agree to nominate one or more members in common, or the same person may be nominated by different powers. Members of the court are to be appointed for six years, and may be re-nominated. (Art. 25) The signatory powers desiring to apply to the tribunal for the settlement of a difference between them are to notify the same to the arbitrators. The arbitrators who are to determine this difference are, unless otherwise specially agreed, to be chosen from the genera] list of members in the following manner:—each party is to name two arbitrators, and these are to choose a chief arbitrator or umpire (sur-arbUre). If the votes are equally divided the selection of the chief arbitrator is to be entrusted to a third power to be named by the parties. (Art. 25) The tribunal is to sit at the Hague when practicable, unless the parties otherwise agree. (Art. 27) “The signatory powers consider it a duty in the event of an acute conflict threatening to break out between two or more of them to remind these latter that the permanent court is open to them. This action is only to be considered as an exercise of good offices.” The procedure of the court is proposed to be regulated by twentyseven articles, in which the following points are the most important. The agent of each party is first to communicate to the court and to the opposite party all deeds and documents on which it proposes to rely, one copy at least being in the language which the court authorizes to be used before it. After the documentary evidence has been lodged, the oral argument is to begin. This is to be taken down in writing, but it is only to be made public with the consent of the parties. The members of the tribunal may question the agents and counsel on any point which they desire
INTERNATIONAL to have cleared up. The tribunal is to be the sole judge of the extent of its own jurisdiction and of the rules of international law, if any, which are applicable to the case. The deliberations of the court are to take place with closed doors. The decision is to be that of the majority, and is to set forth the reasons on which it is based. It is to be in writing and signed by all the members, the minority members when appending their signature being at liberty to signify their dissent. There is to be no appeal; but if a new fact is discovered, which was unknown at the time both to the tribunal and to the party alleging it, and the fact be such that had it been then known it might have exercised a decided influence on the decision, that decision may be revised. Before, however, revision can be had, the tribunal must recognize the existence of the new fact or facts and admit them to have the characteristics just mentioned. The Hague arbitration Convention was signed on 29th July 1899, on behalf of France, Russia, the United States, and thirteen other powers. It was also signed a few days later on behalf of Great Britain. On 4th September 1900, all the powers represented, with the exception of China, duly deposited formal ratifications of the Convention at the foreign office of the Dutch Government. Several of the powers nominated members of the Permanent Arbitration Court, pursuant to Art. 23 mentioned above, those nominated on behalf of Great Britain being Lord Pauncefote, Sir Edward Malet, Sir Edward Fry, and Professor Westlake. Although, in some of the treaties and most of the projects enumerated above, the range of matters proper to be dealt with by international arbitration is assumed to be unlimited, there is a general limits and consensus of opinion amongst specialists that some limitation there must be. Bluntschli, Rouard de Card, Goldschmidt, Kamarowski, Ferdinand Dreyfus, Michel Revon, all exclude questions of national independence, and some of them also exclude questions of “ national honour ” and of “ territorial integrity.” The language in which these reservations are couched is not, however, particularly happy, since it is open to more interpretations than one. What, for instance, is meant by the phrase “ national independence ” in this connexion ? If it be taken in its strict acceptation of autonomous state sovereignty, the exception is somewhat of a truism. No self-respecting power would, of course, consent to submit to arbitration a question of life or death. This would be as if a man were to commit suicide in order to avoid fighting a duel. On the other hand, if the exception be taken to exclude all questions which, when decided adversely to a state, impose a restraint on its freedom of action, then the exception is too wide, since it would exclude such a question as the true interpretation of an ambiguous treaty, a subject with which experience shows international arbitration is well fitted to deal. Again, we may ask, what is meant by the phrase “ national honour ” 1 It was thought at one time that the honour of a nation could only be vindicated by war, though all that had happened was the slighting of its flag or its accredited representative during some sudden ebullition of local feeling. France once nearly broke off peaceful relations with Spain because her ambassador at London was assigned a place below the Spanish ambassador, and on another occasion she despatched troops into Italy because her ambassador at Rome had been insulted by the friends and partisans of the Pope. The truth is that the extent to which national honour is involved depends on factors which have nothing to do with the immediate subject of complaint. So long as general good feeling subsists between two nations, neither will easily take offence at any discourteous act of the other. But when a deep-seated antagonism is concealed beneath an unruffled surface, the most trivial incident will bring it to the light of day. “Outraged national honour” is a highly elastic phrase. It may serve as a pretext for a
