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COMPULSORY ARBITRATION AT THE SECOND HAGUE
It was in the natural course of things that the Second Conference of 1907, called to elaborate the work of 1899, should deal with the problem of extending arbitration along the lines indicated in the Russian proposal of 1899, and that the question should be reconsidered as to whether the nations could not and should not obligate themselves to refer disputes to arbitration.
In this connection it was possible to point to the fact that a large number of the most powerful and important signatory nations of 1899, as well as other nations not in the same class, had already taken steps in this direction in treaties concluded with various individual powers. The question was therefore asked whether it might not be possible to substitute a universal arbitration treaty instead of such a set of individual treaties, which must consist of 46 x 45 = 2070 conventions if it were to be complete, such universal treaty to embody a general obligation to submit to arbitration in a limited number of cases, but at the same time to form a nucleus for more comprehensive treaties to be concluded by the various individual nations. This question was propounded on all sides.
The United States of America made a proposition at the very beginning of the Conference, according to which the nations were to pledge themselves to refer to the Permanent Court of Arbitration of The Hague all differences of a legal nature or such as related to
1 The above is a translation of an extract from an article on International arbitration, contributed to Herder's Staatslexikon, 3d edition, second volume, by Dr. Heinrich Lammasch, Professor of International Law in the University of Vienna.
It is not the custom of the JOURNAL to publish material which has appeared elsewhere, but as Dr. Lammasch is Umpire in the North Atlantic Coast Fisheries Arbitration between Great Britain and the United States, his views on arbitration are of peculiar interest. The JOURNAL therefore translates and publishes the article, which is as valuable as it is interesting. – J. B. S.
the interpretation of international treaties, provided they could not be settled by diplomacy and did not affect the vital interests, the independence, or the honor of either of the parties or the interests of third nations; however, the right was to be reserved by each party to decide itself whether its vital interests, independence, or honor were affected by the dispute. The propositions of Portugal and Sweden went further, for they added to this general but conditional obligation a limited but unconditional obligation to arbitrate certain disputes, while a proposition made by Servia contained only such a list of cases to be settled unconditionally by arbitration. A proposition made by Brazil constituted a variation of the American proposition, going further in some directions and being more re-. stricted in others. The German Empire opposed all these propositions from the start. Although its first delegate, Baron von Marschall, could not express himself strongly enough to show the recognition of the principle of arbitration by Germany, both he and the second delegate, Privy Councillor Dr. Kriege, boldly and energetically opposed every definite proposition made in this dircetion. The general American proposition was objected to by Germany on the ground that it was useless and only a sham owing to the broad exceptions. To this it may be answered that the laying down of the principle in this form is not only of moral significance, as pointed out by the Austro-II ungarian delegate, von Merev,, but has an extensive legal bearing. For even a qualified and conditional recognition of the obligation to submit to, arbitration is a recognition of the fact that the arbitration of such disputes, after an unsuccess. ful attempt to settle them by diplomacy, is the normal method of settling them. If a nation does not wish to consent to arbitrate a question as proposed by the adversary in a given case, it must justify its refusal by invoking the vital interests or national honor clause. To be sure, this excuse does not need to be explained in detail, it being sufficient simply to advance it, but nevertheless the nations will generally hesitate to avail themselves of this pretext unless it is really warranted. Self-respect alone will restrain them from representing their honor as being too vulnerable or their vital interests as being too easily jeopardized.
Therefore, if a nation can not refuse to accept arbitration, when proposed by the other side, without invoking its honor or its vital interests, such refusal will not be so easy for it as without such a requirement. Such an obstacle to the refusal to submit to arbitration will certainly not operate to the detriment of international justice and peace. Moreover, the stipulation of article 16 of the convention of 1899 (now article 38 of the convention of 1907) is indeed contained in a treaty, but it has not the character of a treaty itself.
It is nothing but the recognition of a theoretical idea or the advocacy of arbitration, but it implies no obligation to submit thereto. It is similar to the clauses of certain constitutions, which do not expressly lay down binding rules of law, but are merely intended as guides for future legislation and as such frequently remain unenforced for many years. However, this idea would have been converted by the Russian proposition of 1899 and the American proposition of 1907 into an actual treaty stipulation embodying a legal obligation, even although the latter were subject to very broad exceptions. This was perhaps just what certain nations did not want. Besides, the objection was made to this proposition that it did not limit the mission of arbitration with sufficient clearness, the distinction between questions of a legal nature and those of a political nature not being sharp enough, and that it did not even eliminate unimportant controversies for the settlement of which the procedure of arbitration is too cumbersome and expensive. The latter objection does not seem to apply, for arbitration will at all events only be resorted to in cases where a settlement by diplomacy has been unsuccessfully attempted. When this is the case, no other settlement except by arbitration will be possible unless the controversy is to be indefinitely prolonged so that, in spite of its original insignificance, it may assume a threatening character at some period of strained relations between the nations.
Even the second objection that a sharp distinction can not be drawn between questions of a legal and those of a political nature does not seem to be of decisive importance. The German Empire itself waived this objection in the treaties concluded by it with Great Britain and the United States of America, in both of which it in
cluded this very clause. As a matter of fact, the exception of those cases in which the vital interests and honor are affected and the mention of the interpretation and application of treaties as being the principal field of application of arbitration would seem to defino the idea of questions of a legal nature with sufficient accuracy. Furthermore, even in this connection it is left to the contending parties themselves to judge whether the controversy in question is a legal or political one. Finally, there would certainly have been no insurmountable objection in refraining entirely from mentioning questions of a legal nature in the text of the treaty and in confining the obligation to disputes regarding the interpretation and applicaion of treaty stipulations. At the final vote thirty-five nations expressed themselves in favor of this American article (as partially amended by Sir Edward Fry), while five nations voted against it (Germany, Austria-Hungary, Turkey, Greece, and Roumania, Austria-Hungary having been more favorable to the proposition at first"), and four nations abstained from voting. The result of this vote was that, although the number of votes in favor of the article was seven times that of the votes against it, the article could not be included in the acts of the Conference, since a unanimous or at least almost unanimous agreement is necessary to adopt resolutions at international conferences,
Besides the American proposition, the conference was especially concerned with one made by Portugal, to the effect that the nations should obligate themselves unconditionally and without exception to arbitrate a small class of specifically defined disputes, such an obligation either being assumed in addition to the general obligation in accordance with the American proposition, which is broader, but subject to the exceptions indicated, or else in substitution therefor. The latter suggestion was made by Servia and the former by Portugal and Sweden, in connection with the treaties mentioned above and in accordance with a resolution adopted on motion of E. von Plener by the Inter-Parliamentary Union for Arbitration at its London conference held in 1906. At the beginning this proposition of Portugal
2 See Von Merey's statement previously referred to in the text.
met with opposition on the part of Germany and Belgium as well as Great Britain and the United States of America. It did not eren receive the hearty approval of France at first. However, in the course of a thorough discussion, Great Britain, the United States, and France fully indorsed the idea, so that there was finally a combined EnglishAmerican-Portuguese proposition to adopt a list of cases unconditionally subject to arbitration. In form this proposition appeared as a supplement to the general but conditional obligation to submit to arbitration which it was desired in the American proposition to establish with respect to controversies of a legal nature. As a matter of fact, however, inasmuch as it was impossible to have this obligation accepted by all the Powers at the Conference, the EnglishAmerican-Portuguese proposition came to be the only form in which the recognition of the principle of arbitration, with respect at least to certain controversies, could be expected. Baron von Marschall had at first held out the hope that perhaps the opposition of Germany to such an unconditional obligation with respect to a restricted number of cases might not be so insurmountable as her opposition to the general conditional proposition. Consequently all efforts of the friends of arbitration were now concentrated on this proposition, which was without doubt less significant in fact; for though it was evident to every one that this form of obligation could only extend to comparatively insignificant cases, nevertheless it now seemed to be the only form in which the principle of arbitration could be saved. This is the only way in which the obstinacy of the struggle for and against the list, so insignificant in itself, can be explained.
As the discussion proceeded, however, Baron von Marschall and Dr. Kriege used all their legal acumen in combating the list, for, to the regret of all, Professor Zorn, the German delegate, friendly to arbitration, was excluded from the labors of the commission. In the first place, the list was ridiculed owing to the small number and the insignificance of the cases enumerated therein. This did not occur at the Conference itself, to be sure, but in the discussions of publicists. It is certainly true, as said before, that of the eight subjects which the majority of the Conference thought