The Encyclopedia Americana (1920)/Arbitration, International

ARBITRATION, International. A quasi-judicial mode of settling controversies between states which it has not been possible to settle through diplomatic negotiation. This method of adjudicating international disputes is an old one, many such instances having occurred in ancient times, notably among the Greeks and Romans. It has been frequently resorted to in modern times and the increasing disposition in late years to employ it justifies the hope that it may ultimately take the place of armed force as the accepted method of determining international controversies. According to Dr. W. Evans Darby in his &lsquo;Modern Pacific Settlements,&rsquo; six international controversies were settled by arbitration in the 18th century; 471 in the 19th and 63 during the first three years of the present century. Since the beginning of our national existence some 83 disputes between the United States and some 24 different countries have been amicably settled through the decisions of mixed commissions or arbitral tribunals. Of the pecuniary awards made in these cases, 74.8 per cent, or a total of $69,501,682, were

made in favor of the United States, and 25.2 per cent, or a total of $23,353,762, were made against the United States. Numerous boundary disputes have been settled in this way; the Alabama claims controversy with Great Britain, growing out of the Civil War; the fur-seal controversy; and several fisheries disputes with Great Britain are examples of other important differences which have been arbitrated.

The history of international arbitration has gone, through an interesting evolution. In the beginning bilateral arbitration treaties and general international conventions for the pacific settlement of disputes were unknown. Whenever two states wished to arbitrate differences existing between them they entered into a special agreement called a compromis, which defined the nature of the controversy, named the arbiters or designated a mode of selecting them, set forth their powers and laid down the rules of procedure by which they were to be guided in reaching a decision on the points at issue. Early in the 19th century the practice of inserting an arbitral clause in general treaties became common. This clause usually stipulated that in case a difference of opinion should arise regarding the interpretation of the treaty or some one of its provisions, the contracting parties would submit the question to arbitration. Thus the duty to arbitrate in certain cases was made obligatory. It has been stated that 142 such treaties have been entered into by the countries of America since 1832. The next step was reached when states began to conclude permanent arbitration treaties with one another which provided for the settlement by this mode of all disputes of a certain character which might arise in the future between the contracting parties. Finally, The Hague Peace conferences of 1899 and 1907 adopted general conventions for the pacific settlement of international disputes and provided for the creation at The Hague of a so-called permanent court of arbitration to which the contracting parties might submit their differences.

The first arbitration treaty concluded between the United States and a foreign power was that of 1897 with Great Britain. This treaty provided that certain classes of disputes which might arise between the two governments should be submitted to the arbitration of judges to be appointed according to a mode prescribed by the treaty and in accordance with certain rules of procedure which it laid down. The Senate, however, declined to give its advice and consent to the ratification of this treaty and it never went into effect. In 1905 President Roosevelt negotiated a number of arbitration treaties with foreign powers, but they were ratified only after the Senate had amended them in important particulars. The amendments being unacceptable to the President, he refused to lay them before the other parties for their approval. In 1908 arbitration treaties were concluded between the United States and France, Switzerland, Mexico, Denmark, Italy, Great Britain, Norway, Portugal, Spain, Sweden, the Netherlands and Japan and these were duly ratified by the Senate. Similar treaties have since been concluded with various other foreign powers, so that at the present time arbitration

agreements exist between the United States and 28 different countries, or more than half the sovereign states of the world. In 1915 Brazil was a party to 33 such treaties, Italy to 25, Portugal to 18, Salvador to 20, Spain to 31, etc. Between 1902 and 1915, 164 arbitration treaties were concluded between the various powers of the world, and at the outbreak of the European War the German Empire was the only great power which was not a party to one or more arbitration agreements.

The majority of these treaties provide that differences of a legal nature which it may not have been possible to settle by diplomacy shall be referred to the permanent Court of Arbitration at The Hague (see ). Disputes, however, which affect vital interests, the honor or the independence of the contracting parties, or which involve the interests of third parties, are generally excluded from the provisions of the treaties, and there is therefore no obligation to submit them to arbitration. These exceptions are obviously quite elastic and it would be possible for one of the contracting parties, by a liberal interpretation of the terms &ldquo;honor&rdquo; and &ldquo;vital interests,&rdquo; to avoid the obligation to arbitrate any dispute which it might choose to regard as one which involved its &ldquo;honor&rdquo; or &ldquo;vital interests.&rdquo; In 1911 President Taft concluded treaties with several powers, the purpose of which was to remove the possibilities of evasion which these expressions create. In general, these treaties provided for the arbitration of all differences which were &ldquo;justifiable in their nature by reason of being susceptible of decision by the application of the principles of law and equity,&rdquo; but they were radically amended by the Senate, in consequence of which they were dropped by the President

Lange, in his work entitled &lsquo;Union Interparlementaire; l'Arbitrage obligatoire en 1913,&rsquo; thus summarizes the scope of the existing arbitration treaties:

1. Arbitration of all disputes without reserve—36 bipartite treaties.

2. Arbitration of all disputes subject to reserve of constitutional provisions—13 treaties.

3. Arbitration of all disputes except those affecting vital interests, honor, or independence, or the interests of third parties—46 treaties.

4. Arbitration of all disputes of a legal nature or those relative to the interpretation of treaties—65 treaties.

5. Arbitration of differences relating to the interpretation or application of international law or conventions—44 treaties.

As stated above, the first Hague conference of 1899 adopted a convention for the pacific settlement of international disputes, and the conference of 1907 revised and extended in certain particulars the earlier convention. These conventions were ratified or adhered to by practically all the states of the world, and being of unlimited duration, they are permanent. The conventions provide for the creation of a permanent Court of Arbitration to meet at The Hague for the decision of cases that may be referred to it, and through the generosity of Mr. Andrew Carnegie a palace has been erected there for the holding of the sessions of the court and for

the housing of its permanent offices. The conventions stipulate that each contracting power shall select not more than four persons, of known competence in questions of international law and of the highest moral character, to constitute a panel from which arbiters may be selected whenever any of the contracting parties shall agree to submit a dispute to the court for adjudication. The conference of 1899 formulated a code of procedure to be followed by the court in the hearing of cases submitted to it, and this code was revised and elaborated by the conference of 1907. Since 1899, 15 cases have been submitted to the court for decision, the first one being a dispute between the United States and Mexico concerning the so-called Pious Fund (q.v.) of the Californias. The decision was rendered 14 Oct. 1902 in favor of the United States and was duly carried into effect. The second case involved the question of whether Great Britain, Germany and Italy, three Powers which had blockaded the ports of Venezuela and seized certain of the Venezuelan customs houses on account of the refusal of the government of Venezuela to settle various claims preferred against it by those Powers, were entitled to priority of payment over other governments, including that of the United States, which also had claims against Venezuela, but which had not participated in the blockade of her ports. The decision was rendered 22 Feb. 1904 in favor of the blockading Powers. Among the other more important cases decided by The Hague Court were: The controversy between Germany, France and Great Britain on the one hand and Japan on the other, regarding certain perpetual leases in Japan (decided 22 May 1905); a dispute between Germany and France concerning aid alleged to have been given by the German consul to certain deserters from the French legation in Morocco (decided 22 May 1909); an important and long-standing dispute between Great Britain and the United States regarding the north Atlantic fisheries (decided 7 Sept. 1910); the dispute between France and Great Britain regarding the arrest by the French authorities at Marseilles of a fugitive named Savakar, who had escaped from a British vessel upon which he was being transported to India for trial (decided 24 Feb. 1911); and a controversy between France and Italy concerning the seizure by the Italian authorities of two French vessels during the Turco-Italian War (decided 6 May 1913).

In every case the decision of The Hague Court was accepted by the parties and was duly carried into effect. It soon became evident, however, that the organization of the court was defective. In the first place, it was not a court in the true sense of the word, but simply a panel of names from which the judges were to be selected by the parties whenever disputants had occasion to resort to the court. This involved long and expensive delays; besides, under such an arrangement, the court lacked permanency and continuity. These defects were the subject of serious consideration at the second conference in 1907, and with a view to remedying them, the conference adopted a convention providing for the creation of a permanent court of arbitral

justice to be composed of judges appointed for terms of 12 years and to be paid regular salaries. The proposed tribunal was intended to be not merely a list of names kept at The Hague, but a fully organized body which was to meet once a year and to proceed with any cases which might be on its docket. It would not be necessary, therefore, to constitute a court every time a case was to be decided. Unfortunately, however, it proved impossible for the powers to agree upon the size of the court and the mode of selecting the judges. The smaller states at the conference insisted on equality of representation in the court, the effect of which, had their contention been admitted, would have been to create a tribunal of such size as to be unworkable. Various modes were proposed for selecting the judges and insuring some representation to all the powers, but no agreement was ever reached, and as a consequence the proposed court remains unorganized. The so-called permanent court provided for by the conventions of 1899 and 1907, however, may still be called into existence whenever recourse to it is desired.

The desirability of establishing a general system of compulsory arbitration has been much discussed in recent years and various projects with this end in view have been put forward. In 1890 the first Pan-American conference at Washington adopted a project for a general treaty of obligatory arbitration but it was never ratified by the states represented at the conference. At both The Hague conferences of 1899 and 1907 several projects for limited obligatory arbitration were proposed, but largely on account of the opposition of Germany they were defeated. The Russian proposal of 1899 provided for inclusive obligatory arbitration for differences involving pecuniary claims and those relating to the interpretation of treaties. In 1907 a similar, but more elaborate, project proposed by Portugal was discussed, but like the project of 1899, it was defeated. At the latter conference a project of exclusive obligatory arbitration was proposed &mdash; one which provided that &ldquo;differences of a legal nature and primarily those relating to the interpretation of treaties&rdquo; should be submitted to arbitration, provided they did not involve the vital interests, honor or independence of the disputing parties, or did not affect the interests of other states not parties to the dispute. This project had the support of a large majority of the states represented at the conference, but it was dropped mainly because of the opposition of Austria-Hungary and Germany. Nevertheless the conference of 1907 unanimously adopted a vœu admitting the principle of compulsory arbitration and declaring that certain differences, particularly those relating to the interpretation of treaties, might be submitted to arbitration without restriction. Finally, the conference, in adopting the Porter convention respecting the limitation of the employment of force for the recovery of contract debts, in effect sanctioned obligatory arbitration for one class of disputes.

It is apparent from the above summary that the movement looking toward the substitution of judicial methods in the place of armed force for the settlement of international disputes has made remarkable progress in

years. The obstacle which has stood in the way of further progress has of course been the feeling among states that they cannot consent to submit their international controversies to the decision of judges representing other nations without compromising their sovereignty and running the risk of surrendering their rights. If every nation which becomes involved in a controversy with another were absolutely certain of finding an impartial and unprejudiced tribunal to which it could resort with the certainty of obtaining justice, there would be little reluctance to adopt this method of settling disputes. As yet, however, no means has been discovered by which the selection of competent arbiters without national prejudices and sympathies can always be assured. The method provided by The Hague conventions for the constitution of an arbitral tribunal has not escaped criticism. Its members are to a certain extent under the control of the governments which select them and therefore tend to represent the views of their governments; in some instances, indeed, they have been regnlar legal or diplomatic officials. Greater independence and impartiality might be obtained by forbidding the appointment as members of the court of persons holding official positions under the government which they represent. Furthermore, it might be desirable to forbid any judge of the court from practising before it; it might, indeed, be desirable to go still further and prohibit any citizen of a disputing state from sitting in a case in which his government is a party; finally, a more advanced step, which is quite in line with sound judicial theories, would be to exclude the parties from choosing their own judges, this, because so long as they are allowed to do so they will appoint representatives who are prepossessed in favor of the claims of their own government. In short, arbiters so chosen are more likely to assume the rôle of advocates rather than that of judges. It would seem that if The Hague Court were constituted according to these principles, and if, in addition, the judges were appointed for life and were paid salaries commensurate with the dignity and importance of their positions, we should have a tribunal composed of men as nearly independent and free from prejudices as it would be possible to obtain. See .

Bibliography.&mdash; Barclay, &lsquo;Problems of International Practice and Diplomacy&rsquo; (Boston and London 1907); Darby, &lsquo;International Tribunals&rsquo; (London 1904); Foster, &lsquo;Arbitration and the Hague Court&rsquo; (New York 1904); Hershey, &lsquo;Essentials of International Public Law&rsquo; (New York 1912); Higgins, &lsquo;The Hague Peace Conferences&rsquo; ((Cambridge 1909); Holls, &lsquo;The Peace Conference at The Hague&rsquo; (New York 1900); Hull, &lsquo;The Two Hague Peace Conferences&rsquo; (Boston 1908); Lawrence, &lsquo;International Problems and The Hague Conferences&rsquo; (4th ed., Boston 1911); Lémonon, &lsquo;La Seconde Conférence de la Paix&rsquo; (Paris 1908); Meurer, &lsquo;Die Haager Friedenskonferenz&rsquo; (München 1905, 1907); Moore, &lsquo;History and Digest of International Arbitrations&rsquo; (6 vols., Washington 1898); Nippold,

&lsquo;Die Zwiete Haager Friedenskonferens&rsquo; (Leipzig 1908); Ralston, &lsquo;International Arbitral Law and Procedure&rsquo; (Boston and London 1910); Scott, &lsquo;Thc Hague Peace Conferences of 1899 and 1907&rsquo; (Baltimore 1909); Wilson, &lsquo;The Hague Arbitration Cases&rsquo; (New York 1915).