BERING SEA ARBITRATION and "ALABAMA" ARBITRATION.) Arbitral tribunals may have to deal with questions either of law or fact, or of both. When they have to deal with law only, that is to say, to lay down a principle or decide a question of liability, their functions are judicial or quasi-judicial, and the result is arbitration proper. Where they have to deal with facts only; e.g., the evaluation of pecuniary claims, their functions are administrative rather than judicial, and the term commission is applied to them. "Mixed commissions," so called because they are composed of representatives of the parties in difference, have been frequently resorted to for delimitation of frontiers, and for settling the indemnities to be paid to the subjects of neutral powers in respect of losses sustained by non-combatants in times of war or civil insurrection.
To group (a) belong territorial differences in regard to ownership of land and rights of fishing at sea; to group (b) belong pecuniary claims in respect of acts wrongfully done to one or more subjects of one state by, or with the authority of, another state. To enumerate even a tenth part of the successful arbitrations in recent times would occupy too much space.
Permanent Court of Arbitration of The Hague.—The establishment of a permanent tribunal at The Hague by the con vention of 1899, for the pacific settlement of international disputes marks a momentous epoch in the history of international arbitra tion. This tribunal realized an idea put forward by Jeremy Bentham towards the close of the 18th century, advocated by James Mill in the middle of the 19th century, and worked out later by Mr. Dudley Field in America, by Dr. Goldschmidt in Germany, and by Sir Edmund Hornby and Mr. Leone Levi in England. The credit of the realization is due, first to the tsar of Russia, who initiated the Hague Conference of 1899 ; secondly to David Jayne Hill, at that time assistant secretary of State of the United States; and thirdly to Lord Pauncefote (then Sir Julian Pauncefote, British ambassador at Washington), who urged before a committee of the conference the importance of organizing a permanent international court, the service of which should be called into requisition at will, and who also submitted an outline of the mode in which such a court might be formed. The result was embodied in the following articles of the convention, signed on behalf of 16 of the assembled powers on July 2g, 1899.
(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 arbi trators. 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 arbi trators who are to determine this difference are, unless otherwise specially agreed, to be chosen from the general list of members in the following manner:—each party is to name two arbitrators, and these are to choose a chief arbitrator or umpire . 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. 26.) 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." Several of the powers nominated members of the permanent court pursuant to Art. 25, quoted above, those nominated on behalf of Great Britain being Lord Pauncefote, Sir Edward Malet, Sir Edward Fry and Professor Westlake. On the death of Lord Pauncefote, Major-General Sir John C. Ardagh was appointed in his place.
Another institution created by this Convention (see Art. 9) is the so-called international commission of enquiry, designed to facilitate a solution of a dispute arising from a difference of opinion on points of fact, and not involving the honour or vital interests of the parties.
The contracting Powers also agreed to have recourse to the good offices or mediation of one or more friendly Powers, in cases of serious disputes, before appealing to arms, and that such recourse should not be regarded as an unfriendly act.
At the Second Peace Conference of The Hague in 1907 the convention was redrafted, but in essentials remained unchanged. One important addition was the creation of summary procedure by means of a smaller tribunal composed of three judges. Each party is represented by an agent only and the proceedings are in writing.
In the Dogger Bank incident of 1904 the commission of enquiry was empowered by the parties, Great Britain and Russia, not only to ascertain the facts, but also to determine the liability.
Until 191I progress in arbitration had been confined within certain limits, questions involving national honour or vital in terests being excluded from its operation. In 1911, however, an effort was made to widen its scope. The credit for the innovation is probably due to the United States, as the new idea was first embodied in treaties between that power and France and Great Britain respectively, though these treaties were not ratified.
In the Italo-Turkish War no time was given for any possible pacific intervention, and in the Austro-Hungarian conflict with Serbia the same method of excluding pacific intervention was adopted. In the Italian conflict with Greece over the Janina murders it was the same again, in spite of the parties being pledged to arbitration. These instances show that arbitration must be of immediate and automatic application if it is to prevent a disaster.
Some account of the leading provisions of the arbitration treaties of 1911 between Great Britain and the United States and between France and the United States must be given. Apart from the provision that the treaties were to embrace all manner of disputes and differences, various preliminary stages of pro cedure were provided, which may be summarized as follow : I. Request by either party to submit any difference between them to a joint high commission of inquiry.
2. Power to either party to postpone the reference to the high commission for one year from the date of the request, in order to afford an opportunity for diplomatic discussion and adjustment of the questions in controversy.
3. Appointment by each party of three of their nationals, these to form the joint high commission.
4. Holding of the inquiry by the joint high commission, the inquiry to be followed by a report upon the particular question or matters referred to it, for the purpose of facilitating the solution of the disputes by elucidating the facts and defining the issues, the report to include also such recommendations and conclusions as may be appropriate.
5. If the difference persist, the case beccmes the subject of an agreement to refer the matter to arbitration, such agreement to pro vide for the organization of the tribunal which will arbitrate, and to determine the question or questions at issue.
The object of the treaties, however, was not only to provide automatic application, but also to divert attention from the issue to the method of settlement, and thus to enable diplomacy to gain time, while providing the means of obtaining a calm ex amination of the points involved.
Under the Covenant the members of the League agree that if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or to enquiry by the Council of the League, and they bind themselves in no case to resort to war until three months after the award by the arbitrators or the report by the Council.
The members of the League agree that whenever any dispute shall arise between them which they recognize to he suitable for submission to arbitration and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration.
The members of the League also agree that they will carry out in full good faith any award that may be rendered, and that they will not resort to war against a member of the League which complies herewith. In the event of any failure to carry out such an award, the Council shall propose what steps should be taken to give effect thereto.
It is seen that these provisions do not pretend to include all difficulties, but are confined to such matters as all parties may regard as arbitrable. Another clause, however, provides that "dis putes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if estab lished would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among these which are gen erally suitable for submission to arbitration." The attitude of the British Government in respect of these provisions of the Covenant was expressed in a speech made by Lord Balfour on July 6, 1925, in which he stated: Arbitration is the thing; there is no question which can arise which will not be submitted to arbitration. If arbitration be really observed, war will be impossible. If either party to a dispute refused to arbi trate or to carry out a decision of arbitration, our obligation and that of the other parties would be to throw in our whole strength to defend the aggrieved party.
On the continent of Europe this confidence in the future of arbitration is equally strong. Before the World War, arbitration was regarded as a permissive method and though the term "com pulsion" was used, it was merely in the sense that contracting parties had bound themselves to submit the cases specified in their engagement to arbitration. Under the Covenant, as Lord Balfour interprets it, compulsion is given a much more effective sense.
Geneva Protocol.—To secure further the inclusion of all differences between nations, and to apply compulsory arbitration as a substitute for war, the Geneva Protocol, adopted on Oct. 2, 1924, but never ratified by the Powers, provided a systematic procedure of conciliation, arbitration, and forced compliance with the League's decisions, for the prevention of war. This took the form of an exhaustive amplification of the above-cited articles of the Covenant.
Its provisions were as follows:— I. If the dispute submitted to the Council is not settled by it, the Council shall endeavour to persuade the parties to submit the dispute to judicial settlement by arbitration.
2. (a) If the parties cannot agree to do so, there shall, at the request of at least one of the parties, be constituted a committee of arbitrators. The committee shall so far as possible be constituted by agreement between the parties.
(b) If within the period fixed by the Council, the parties have failed to agree, in whole or in part, upon the number, the names, and the powers of the arbitrators and upon the procedure, the Council shall settle the points remaining in suspense. It shall, with the utmost possible despatch, in consultation with the parties, select arbitrators and their president from among persons who, by their nationality, their personal character, and their experience, appear to it to furnish the highest guarantees of competence and impartiality.
(c) After the claims of the parties have been formulated, the committee of arbitrators, on the request of any party, shall through the medium of the Council request an advisory opinion upon any points of law in dispute from the Permanent Court of International Justice (q.v.), which in such case shall meet with the utmost possible despatch.
3. If none of the parties asks for arbitration the Council shall again take the dispute under consideration. If the Council reaches a report which is unanimously agreed to by the members thereof, other than the representatives of any of the parties to the dispute, the signatory States agree to comply with the recommendations therein.
The Protocol unfortunately amplified also the coercive clauses, military and economic, in case either party to a dispute failed to comply with the pacific solution proposed or arrived at by the League. Owing more particularly to these coercive provisions Great Britain repudiated the Protocol. The United States, which had been foremost in promoting arbitration, did not adopt the Covenant owing mainly to these very coercive provisions which the Protocol made the mistake of amplifying. Great Britain's repudiation of the Protocol prevented its general application.
As regards economic coercion against a power which declines to accept arbitration, it is not a principle much more feasible than coercion by force. Suspension of trade between any two industrial countries may be as much a loss to the one as to the other. Feeling in Great Britain and the United States seems prac tically unanimous in distrusting the application of any coercive method whether or not a domestic interest is involved. Until some new method is found of accentuating moral force which will not have the defects of the sanctions provided by the Covenant, the moral force of universal public opinion seems destined to be the only guarantee of respect for arbitration and its award.
Meanwhile Germany, Sweden, Finland and Switzerland have concluded treaties of arbitration in which questions of national honour and vital interests are not reserved. In these a new ele ment has been added to the system of compulsory treaties, in the form of a standing committee of competent persons appointed by the two contracting States, to which all difficulties can be referred for examination and counsel.
At the sixth meeting of the Assembly of the League of Nations the failure of the Protocol of 1924 was dealt with in a report containing the following paragraph : At the moment when the declarations of certain governments have shown that an early entry into force of the Protocol for the pacific settlement of international disputes is not to be expected, several delegations have been anxious to affirm the fidelity and unanimity with which the members of the League remain attached to the triple object underlying that draft treaty, namely, arbitration, security, and disarmament, and to indicate methods or measures by which an ap proach might be made to this object, pending the achievement of a general settlement which many consider indispensable.
The government most particularly concerned in the wrecking of the Protocol was that of Great Britain. Its attitude produced among the other members of the League of Nations the impression that Great Britain, in spite of her active championship of arbi tration, was not prepared to accept the obligations resulting from strict compliance with the provisions of the Covenant. This im pression was shared by many Englishmen, but Lord Balfour's statement made it clear that it was erroneous; and it was not surprising that, later on, the foreign secretary, Sir Austen Cham berlain, should take the lead in calling a special conference to deal with the problems existing in Central Europe, under the auspices of the Covenant itself. Great Britain thus showed that while observing her traditional attitude of distrust towards inter national generalities, she was genuinely attached to the principle of arbitration and was ready to give it the widest feasible scope.
Locarno Pact.—The result of the conference called by the British Government at Locarno in Oct. 1925 was a pact under which the Powers between whom difficulties are most likely to arise undertake in no circumstances whatever to resort to war. They pledge themselves to submit disputes of every kind to some form of peaceful procedure. This agreement must be taken in conjunction with Article 16 of the Covenant, which provides that disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which, if established, would constitute a breach of international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those generally suitable for submission to arbitration or judicial settlement.
Both the Geneva Protocol and the Pact of Locarno adopted the same principle as that which underlay the abortive Anglo American treaty of 1897; though that treaty was called a treaty of arbitration it was at the same time a treaty of conciliation. It is interesting to note that Lord Salisbury, who acted, it is believed, on the advice of Lord Alverstone, initiated the negotiations for the treaty in question in a draft, the first proposition of which was as follows : Her Britannic 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, cannot 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.
This principle, though it was not adopted in the treaty of 1897, has been adopted in practically all the new treaties of arbitration entered into since the conclusion of the World War.
The important object of international arbitration is further dealt with in a number of articles of which the following may be mentioned : EUROPE : HISTORY ; LEAGUE OF NATIONS ; LOCARNO, PACT OF; SANCTIONS AND GUARANTEES; TACNA-ARICA; WORLD COURT.