case which it believes to be most nearly in accordance with justice. A correspondence of this kind may continue through a period of years, and rarely leads to results of direct or immediate importance. It is resorted to when two states cherish different views as to the justice of a practice maintained or advocated by one and denied by the other. Such was the long controversy between England and the United States upon the right of search, which extended over a period of more than fifty years. When a nation complains of a clear and decided violation of international law, however, and no dispute exists as to the facts in the case, reparation on the part of the offending state is usually made with the greatest promptness.' Duty of Moderation. In this method of adjustment, much depends upon the tact and moderation shown by the diplomatic representatives of the interested states in dealing with the question of difference. "It not infrequently happens that 'The following cases are cited in illustration of this principle: Case of the Laconia. În December, 1878, the American whalingship Laconia, while in the port of Zanzibar, Africa, was boarded by an officer of the British ship-of-war Leader, Captain Earl. The boarding party took from the Laconia three Africans, claiming that they were slaves, Captain Earl justifying his act under the treaty of 1862, between England and the United States, for the suppression of the slave-trade. The matter was represented to the British Government, by whom the action of Captain Earl was promptly disapproved, and the regrets of Her Majesty's Government at the occurrence were conveyed, through the British minister, to the government at Washington. Foreign Relations of the United States, 1879, pp. 415 432. Case of the James Bliss. In 1872 the American schooner James Bliss was seized, in British territorial waters, by the Canadian police cutter Stella Maris, for an alleged violation of the fishery laws. Soon after her arrival in the port of Gaspé Basin the commanding officer of the police cutter caused the Dominion flag to be hoisted above the American, at the mast-head. The act was repeated on the following day, in both instances against the protest of the American consul. The facts were then reported to the Department of State in Washington, by whom they were brought to the attention of the GovernorGeneral of Canada in the diplomatic way. Action was at once taken in the matter. Lord Dufferin, the Governor-General, disavowing, in the amplest manner, any intention of showing disrespect to the American flag. He also announced that he had given most particular instructions directing the discontinuance of the practice.-Foreign Relations of the United States, 1872, pp. 200-208. See also the case of the Baltimore, p. 80. what is at first looked upon as an injury or an insult is found, upon a more deliberate examination, to be a mistake rather than an act of malice, or one designed to give offence. Moreover, the injury may result from the acts of inferior persons, which may not receive the approbation of their own governments. A little moderation and delay, in such cases, may bring to the offended party a just satisfaction, whereas rash and precipitate measures may often lead to the shedding of much innocent blood.' AMICABLE MEASURES OF REDRESS Mediation. Of all the methods hitherto proposed for preventing international strife, this has been by far the most effective and successful in its practical working. It consists, in substance, of a reference of the cause of difference to a disinterested power, who suggests a remedy, or, more frequently, proposes an adjustment based upon such mutual concessions as will remove the cause of difference or irritation. Mediation may be asked by the interested states, or a third power may tender its good offices, with a view to the maintenance of peace. In the latter case the friendly powers take the initiative, which may be accepted or not by the interested states. This method of adjusting international differences was frequently resorted to during the Middle Ages, especially by the Pope, and there are numerous instances of his successful mediatory interference to be found in the history of Europe during that period. In modern times the tendency to mediation has greatly increased in force, and but few cases of conflict of international right have arisen, in recent times, in which the good offices of friendly powers have not been tendered to the litigant states. Although these offers have not always, or even usually, been accepted, their effect has been beneficial, inasmuch as they have furnished new 'I Halleck, pp. 413, 414. Sir Edward Creasy, First Platform of International Law, pp. 72; I 391, 392; Abdy's Kent, grounds, or reasons, for the settlement of existing difficulties, and have suggested methods of adjustment which had not occurred to the interested parties.' Arbitration. Private arbitration consists in the reference of an international difference or dispute to a tribunal composed of one or several persons. To this tribunal the question of difference is submitted, and its decision, when rendered, is binding upon the interested parties. This method of adjustment does not afford so prompt a remedy as can be obtained through mediation, and is applicable to a somewhat different class of cases. It possesses an advantage over that form of adjustment, however, in that its decisions have greater binding force, since, if rendered in good faith, they cannot be rejected by litigant parties as can offers of mediation." The composition of the tribunal, the method of selecting its members, the time and place of meeting, its rules of procedure, and the precise question to be referred to it for decision are always made the subject of a preliminary treaty. In reaching a decision the majority rule prevails, unless otherwise precisely stipulated in the preliminary treaty, and the decision of the tribunal binds the litigant states, unless its validity can be contested upon any one of the following grounds: I Halleck, p. 415; Levi, pp. 266, 267; Creasy, pp. 392-394; Woolsey, § 224; Boyd's Wheaton, PP. 95-99, 345; Vattel, liv. ii. chap. xviii. § 328; II Ferguson, § 157; p. 205; Snow, § 34; II Twiss, § 7. For cases in which the United States has been interested in particular cases of arbitration, see the Foreign Relations of the United States, 1874, pp. 195-197; 1875, part i. pp. 185-200, 197-199; 1878, pp. 16-18, 709-711; 1882, pp. 42, 326-332, 398-441; 1886, p. 776; 1888, pp. 79, 134, 455, 456, 468, 1345; 1892, pp. 1-3, 17-19. See also "List and Digest of the Arbitrations to which the United States has been a Party," by Professor John Bassett Moore. I Halleck, pp. 416-418; Hall, p. 361; III Phillimore, pp. 2-14; Creasy, pp. 394-399; Snow, § 34; Heffter, § 109; III F. De Martens, 88 139-154; III Dig. Int. Law, § 316; Vattel, liv. ii. chap. xviii. § 329; Hosack, pp. 12, 53, 238, 239; I Wildman, pp. 186, 187; Woolsey, pp. 400, 401; III Calvo, §§ 17061806; VI Ibid. 88 352-39. The law faculty of the University of Bologna was frequently called upon to adjust disputes arising among the early Italian republics. The senate of the free city of Hamburg performed a similar office in the north of Europe.-II Twiss, §5. (1.) If one of the members of the tribunal has not acted in good faith; or if its decision be tainted with fraud. (2.) If any of the conditions of the preliminary treaty, as to method of procedure, time, and place of meeting, have not been complied with; or if the decision has not been rendered within the time therein stated. (3.) If the tribunal has exceeded its jurisdiction; or if its decision goes outside the case submitted to it for adjudication.1 Mediation and Arbitration Compared. If the cases be compared in which these methods of adjusting international disputes have been successfully applied, it will be seen that mediation has been found most useful when it has been resorted to to prevent threatened hostilities, especially in cases involving national reputation, or when considerable national feeling has been aroused. It has also been found a successful method of terminating an existing war, especially when a disinterested state has chosen a fitting opportunity to tender its good offices to the belligerent powers. Arbitration, on the contrary, "implies a belief on the part of both that either a legal or quasi-legal question is involved, and that each is, in his own opinion, right; or, in other words, that, when the state of facts is carefully examined, and the law or equitable principle accurately expounded, each hopes and thinks the result will be in his own favor. A bona fide belief in the justice of one's own cause is an essential element in a successful arbitration. If such a belief is absent, there can be no readiness to obey the award, and the same causes of acrimony exist after the award as before it." "2 "Arbitration is an expedient of the highest value for terminating international controversies; but it is not applicable to all cases or under all circumstances, and the cases and circumstances to which it is not applicable do not admit of precise definition." III 1 Heffter, § 109; II Twiss, 8 5: VI Pradier-Fodéré, § 2628; Phillimore, § 3; Hall, § 119. Amos, Science of Law, p. 348; VI Pradier-Fodéré, §§ 2610-2613; II Twiss, § 7. ARBITRATION CONVENTIONS OF THE INTERNATIONAL PEACE CONFERENCES AT THE HAGUE Purpose of the Conferences. With a view to secure concerted action in respect to certain questions of serious international concern, having to do with the maintenance of the general peace and the amelioration of the hardships of war on land and sea; and with the view of securing, if possible, an agreement looking to a gradual, but sensible, reduction in the burdens of military and naval armaments, a conference of delegates met at The Hague on May 18, 1899, in response to an invitation addressed by the Emperor of Russia to the principal states of the civilized world. In pursuance of the invitation thus issued, one hundred and one delegates, representing twenty-six states, appeared and exchanged their credentials at The Hague on the day appointed for the meeting of the conference. The conference completed its labors on July 29, 1899. A second Peace Conference, called, upon the suggestion of the President of the United States, by the Emperor of Russia, and composed of one hundred and four delegates plenipotentiary, representing forty-four states, met at The Hague on June 15, 1907, and adjourned on October 19 following, having adopted thirteen important international conventions. The following are the more important provisions of the arbitral conventions:1 Good Offices and Mediation. The convention contains an undertaking to resort to good offices in cases of serious differences, or disputes, arising between the states which are parties to its operation. It creates a right of initiative 1 Although the most important, the scheme proposed by the International Peace Conference is by no means the first project for the general adjustment of international disputes by a resort to arbitration. The Institut de Droit International at its session of 1875 prepared a scheme for the adjustment of international disputes by arbitration which was published, with a view to its general adoption, in the Annuaire of the Institute for that year. For the text of this project, see the Annuaire de l'Institut de Droit International for 1875, |