8

It was frankly framed to secure the "Balance of Power," a European precaution "that no single State ought to be suffered to become strong enough to overbear the aggregate strength of the rest, or some considerable but undefinable proportion of their aggregate strength." The Treaty of Aix-la-Chapelle, in 1748, ended the great dynastic war which grew out of the Austrian Succession. This peace satisfied nobody and a short time later the Seven Years' War broke out, which was closed by the Treaties of Hubertusburg and Paris, in 1763. The Treaties of Versailles and Paris, in 1783, established the independence of the United States.

Almost all the treaties referred to above made settlements of controversies in which the principal States of Europe were engaged. And from 1713 on, the territory of the New World became an important consideration in the Old World treaties. The principle of the "Balance of Power" naturally made a quarrel between any two great Powers a matter of vital interest to all the other Powers. Since the Napoleonic Wars it has been even more true that the conclusion of a war is made the occasion of an international meeting. We have seen that the Congress of Vienna, in 1815, dealt with

8 Mountague Bernard, Lectures on Diplomacy, p. 97.

practically all of Europe. Similarly, the Congress of Paris, in 1856, which made the settlement following the Crimean War, was a general meeting. It will be recalled that Cavour sought and secured a place at this peace-table in order to make a presentation of the wrongs and the aspirations of Piedmont and all Italy to a European group. The Congress of Berlin, in 1878, again brought together the principal Powers of Europe, this time to make new boundaries in the Balkans resulting from the Russo-Turkish War.

It is very easy to prove that the European Powers made very grave mistakes at these numerous conferences from 1648 to 1878, that at times they disregarded geographical barriers and at times they outraged the spirit of nationality. It is probably true, however, that the men participating in the conferences sincerely sought a peace that could be maintained. However this may be, the important thing in the development of international law is that the States of Europe have more and more been forced to consider themselves a family or society. Their peaces have not lasted, but they have recognized the necessity of coming together and, if possible, agreeing upon a whole program rather than each one treating his problems as matters which concerned only himself.

Moreover, the conferences have very often resulted in substantial additions to the rules of conduct which govern civilized States. A striking illustration of this was the introduction in the early part of the last century of the new international agreements with reference to navigable rivers. Perhaps a better illustration was the decision to abolish the slave trade at the Congress of Vienna. It is to be remembered, also, that the Congress of Paris, in 1856, laid down some uniform maritime rules for application in time of war, and that the Congress of Berlin, in 1878, confirmed the principle of religious freedom and equality in the Balkan States. While rules of conduct adopted by treaty are obviously binding only on the States which are parties to the treaty, nevertheless they serve also as an example to other States, and have an effect on the development of international custom and opinion.

There has been still another strong force in the building up of international law. Arbitration as a method of settling disputes was used during the Middle Ages, and never entirely abandoned, but its great development has come in the last one hundred and twenty-five

9

For arbitration prior to the nineteenth century see the valuable historical note by John Bassett Moore in his History and Digest of International Arbitrations, Vol. V, p. 4821.

years. It is important to note the distinction between arbitration and mediation, which is thus stated by John Bassett Moore:

By arbitration we mean the determination of controversies by international tribunals judicial in their constitution and powers. Arbitration is not to be confounded with mediation. Mediation is an advisory, arbitration a judicial, process. Mediation recommends, arbitration decides.10

In the treaty between England and the United States concluded on November 19, 1794, commonly known as the Jay treaty, three subjects were submitted to arbitration, the first a boundary question, the second the claims on account of confiscated debts, and the third the claims arising from neutral rights and duties. Since that time there have been numerous arbitrations in which the United States has been a party, most of which have been with Great Britain. But disputes have also been settled by arbitration with Spain, France, Mexico, Denmark, Portugal, and several of the South American and Central American countries. Professor Moore states that the total number of arbitrations of the United States down to 1914 was sixty-eight, and that this total was

10 John Bassett Moore, Principles of American Diplomacy, pp. 306-307.

equaled during the same period only by those of Great Britain, the total of which appears to have been about the same.11

The first Hague Conference was held in 1899. Twenty-six sovereign and independent States were represented. While the conference had been called by Russia to deal with the question of armament, it paid very little attention to that subject. An elaborate convention for the pacific settlement of international disputes was adopted. In this convention the signatory Powers agreed (1) to use their best efforts to insure the pacific settlement of international differences, (2) to have recourse, so far as circumstances allow, to the good offices or mediation of one or more friendly Powers, and that the tender of good offices and mediation should not be regarded by either of the parties in dispute as an unfriendly act, (3) to provide for the formation of International Commissions of Inquiry to facilitate the solution of those disputes where the facts are in doubt, and (4) to constitute a system by which international arbitration may be facilitated. It is the work done under this last heading that most interests us. The States formally agreed to create what

11 For instances where the United States has declined to arbitrate see John Bassett Moore's Four Phases of American Development, pp. 100-200.