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Assistant Technical Adviser to the American Commission to Negotiate Peace


International arbitration is the oldest and most favored method of settling disputes between nations when diplomacy fails. The Hague Conventions of 1899 and 1907 for the Peaceful Settlement of International Disputes both declare that “In questions of a legal nature, and especially in the interpretation or application of international conventions, arbitration is recognized by the Contracting Powers as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle." (Art. 16 of the Convention of 1899, and Art. 38 of the Convention of 1907.)

The opposition of Germany individually and as head of the Triple Alliance prevented the adoption of a general treaty of arbitration at both the Hague Conferences; but outside the Conferences the other nations sought to give effect to the spirit of the foregoing declaration by concluding separate treaties of arbitration pursuant to its terms. Numbers of such treaties have been negotiated, the signatories including 37 nations, among them all the principal belligerents in the present war.

At the present Peace Conference, Germany will not be in the position effectively to oppose the wishes of the civilized world, as she was and did at The Hague. It is submitted, therefore, that the logical step for the Allies to take is to do now what they so earnestly desired to do but were prevented by Germany from doing in 1907, namely, conclude a general treaty of compulsory arbitration of arbitral disputes, using as a model the separate treaties now in force between most of them. By using a formula already familiar to and accepted by the contracting parties, objections to the extent or meaning of the covenant are likely to be obviated in the Peace Conference, as well as in the national legislative bodies whose consent to ratification may be necessary in some countries.

The provision more generally used to prescribe the scope of the arbitral jurisdiction under these treaties follows closely the language of the articles of the Hague Conventions, above quoted, and is commonly used by the United States and the other great Powers in the separate treaties between them. It reads as follows:

1 Prepared at Paris, December, 1918. 2 This JOURNAL, Vol. 2, pp. 824-826.

Differences which may arise of a legal nature, or relating to the interpretation of treaties existing between the two contracting parties, and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague by the convention of the 29th July, 1899; provided, nevertheless, that they do not affect the vital interests, the independence, or the honor of the two contracting states, and do not concern the interests of third parties.

Treaties containing the above article have been concluded by the following Powers parties to the present Peace Conference:

Austria-Hungary with Great Britain, Portugal, Switzerland, United States.
Brazil with China, Great Britain, United States, Venezuela, Cuba.
China with Brazil and the United States.
France with Denmark, Great Britain, Italy, Netherlands, Norway, Portugal,

Spain, Sweden, Switzerland, United States.
Germany with Great Britain.
Italy with France, Great Britain, Portugal, Switzerland, United States.
Japan with United States.
Portugal with Austria-Hungary, France, Great Britain, Italy, Norway,

Sweden, Switzerland, United States. Great Britain with Austria-Hungary, Denmark, Brazil, Colombia, France,

Germany, Italy, Netherlands, Norway, Sweden, Portugal, Spain, Swit

zerland, United States. United States with Austria-Hungary, Brazil, China, Costa Rica, Denmark,

Ecuador, France, Great Britain, Haiti, Italy, Japan, Mexico, Netherlands, Norway, Portugal, Paraguay, Peru, Salvador, Spain, Sweden, Switzerland, Uruguay.

The foregoing data are taken from the treaties published from time to time in this JOURNAL and are not claimed to be complete. It may be that an examination of other treaty collections will bring to light additional treaties of this character.


It has probably been observed with some misgiving that the foregoing suggestion for a general arbitration treaty retains the usual exceptions reserving from arbitration differences which may affect the vital interests, independence or honor of the contracting states. The retention of these exceptions, or the substitution of some other proviso of like import, is, however, regarded as most important and necessary, for it is believed improbable that any general arbitration treaty broader in scope than the separate arbitration treaties now in force would, even if agreed to by the peace delegates, be ratified, especially by the United States. Ample warrant for this statement may be found in the unhappy fate of the so-called Taft Arbitration Treaties of 1911 between the

United States, Great Britain, and France, which attempted to eliminate these exceptions of vital interests, honor and independence by submitting the justiciability of such disputes to a body other than the United States Senate.3

Mr. Taft's successor has been no less solicitous for the cause of international peace, but that he has been more practical is demonstrated by his success with a different policy, as the result of which the United States has negotiated and ratified a long series of treaties with many nations, which treaties, although they do not provide for the arbitration of all differences without exception, materially reduce the chances of war growing out of differences coming within the exceptions of vital interests, honor, and independence. This has been accomplished by agreeing that “All disputes of every nature whatsoever, to the settlement of which previous arbitration treaties or agreements do not apply in their terms or are not applied in fact,” shall be referred for investigation and report to an international commission of inquiry, the contracting parties further agreeing not to declare war or begin hostilities during the investigation of the commission and before its report is submitted.

Such treaties are now in force between the United States and twenty other nations, namely: Bolivia, Brazil, Chile, China, Costa Rica, Denmark, Ecuador, France, Great Britain, Guatemala, Honduras, Italy, Norway, Paraguay, Peru, Portugal, Russia, Spain, Sweden, and Uruguay. Half as many others have been signed and are in the slow processes of diplomacy toward completion.

The principal belligerents with which the United States is associated, it will be noted, are among the nations with which these treaties are now in force with the United States. The reason for the non-appearance of Germany in the list of concluded treaties, after its acceptance of the plan in principle, is now known to have been Germany's unwillingness to forego what it believed to be its greatest asset in war, namely, a sudden attack.*

It is submitted that no more appropriate proposal for reducing the possibility of future wars over differences of a non-arbitral nature could be submitted to the Peace Conference by the United States for general acceptance by the nations, than its own plan already generally accepted and in force with many of them separately. For the separate commissions provided in each of the American treaties, the general treaty might substitute the International Commission of Inquiry whose organization and procedure are already prescribed in the Hague Conventions for limited classes of cases, subject to such changes or amendments as may be deemed necessary.

The following is, therefore, tentatively suggested as the second article of the proposed general peace treaty:

The high contracting parties agree that all disputes between them, of every nature whatsoever, other than disputes the settlement of which is provided for and in fact achieved under Article I of the present convention, shall, when diplomatic methods of adjustment have failed, be referred for investigation and report to an international commission of inquiry, to be constituted in the manner prescribed by the Hague Convention of October 18, 1907; and they agree not to declare war or begin hostilities during such investigation and before the report is submitted.

3 For the report of the Committee on Foreign Relations strongly objecting to this feature of the Taft Treaties on the ground that it violated the Constitution of the United States by attempting to delegate the treaty-making prerogatives of the Senate to an outside body, see this JOURNAL, Vol. 6, page 167 at page 172. For the final amendments made to the treaties by the Senate, which practically made it impossible for President Taft to suggest their ratification to the other governments, see ibid., page 460.

4 Gerard's My Four Years in Germany, p. 61.


We have now provided for the arbitration of certain classes of international differences, and for a delay in hostilities while all other differences are being investigated and reported upon by an international commission. Both procedures are already in force in many separate treaties, and the only merit of the present suggestion is that they be combined in a general treaty between all the parties to the Peace Conference so as to bring within their scope nations which may not have entered into such agreements with all the other members of the conference, and to substitute for the international obligation between two states contained in the separate treaty, an international covenant between each contracting state and all the other states party to the agreement. A breach, or an attempted breach, of the treaty would thus become a matter of interest to all the signatories of the international covenant instead of a local matter between the two signatures in dispute.

It now seems advisable to go further and provide some procedure for establishing for the information of all the contracting parties the exact attitude of each nation toward a dispute in which it may become involved with another nation, all being parties to the international agreement. For this purpose, it is believed that the easiest method would be to make use of the International Bureau, established at The Hague by the conventions of 1899 and 1907, as a clerk of court's office for filing what may be called the complaint and pleadings of the disputant nations. It might be provided that, whenever a dispute arises, whether of an arbitral or non-arbitral nature, and, therefore, whether falling within either of the articles previously suggested for disputes of these classes, either contracting party shall have the right to request that the case be arbitrated under Article I of the convention. The defendant nation may accept arbitration and the case will then proceed according to the arbitral procedure prescribed in the Hague Conventions. The defendant state may, however, decline to arbitrate on the ground that the question involves its vital interests, honor, or independence. In that event, the complaining state may demand that the case be submitted to investigation and report to an international commission of inquiry, and the defendant shall be obliged so to refer the case, and the stipulations of Article 2 of the international covenant will come into operation.

All the pleadings of both parties to the dispute should be made through the International Bureau, which will transmit a copy to the other party to the case, and copies to all the signatories of the international convention, who should have the liberty to give them publicity. Such action will go far toward removing the evil effects of secret diplomacy after a dispute has reached the stage where it may be the cause of war.

4. SANCTION Should the foregoing proposals be agreed upon in a general treaty, it is believed that the honor of nations, supported by a powerful public opinion against resort to war, will be sufficient to induce disputing nations to comply with the treaty. But grave doubt now exists everywhere as to the effectiveness of international agreements backed alone by the honor of nations or public opinion. An urgent demand is made, which statesmen may not feel at liberty to disregard, that some more effective means be devised for preventing the violation of international agreements. All nations seem inclined to agree in principle that some such safeguard should be provided, and many suggestions have been brought forward, including leagues of nations, an international police, economic boycotts, disarmament, etc., but none seems to have met with sufficient favor to lead to a hope of its general acceptance.

Lacking agreement upon a more definite plan, it is submitted that the next best thing to do is for the nations to agree in general terms that in case a contracting party declines to arbitrate or to submit a question to an international inquiry, the other nations parties to the international agreement will use the means at their disposal for maintaining the status quo or restoring it until the arbitration or inquiry has taken place. The agreement should further provide that the means to be employed shall be agreed upon in concert according to the circumstances of each case as it arises. These means may be either pacific or non-pacific, accordingly as the nations may agree in each case. Such stipulations would seem to avoid what seem to be the insuperable obstacles to the creation of an international executive or to the pledging in advance of definite military, economic, or other contributions to be applied under circumstances which it is now impossible to foresee. But they will be sufficient, it is believed, to serve formal notice upon all prospective war-makers that the rest of the world is interested in seeing to it that the international agencies established to prevent the disturbance of the world's peace are made use of, and that the nations as a whole will consider and adopt the most appropriate means for enforcing the international agreement that the circumstances of the particular case may indicate.

In order to make this Convention Establishing an International Union for Arbitration or International Inquiry world-wide in its application, it should contain a clause permitting neutrals in the present war to adhere to it.

It is believed that in the foregoing suggestions may be found the germ of the international organization to which President Wilson alluded in the following paragraph from his address at the Sorbonne on December 21, 1918:

My conception of the League of Nations is just this, that it shall operate as the organized moral force of men throughout the world, and that whenever or wherever wrong and aggression are planned or contemplated, this searching light of conscience will be turned upon them and men everywhere will ask, What are the purposes that you hold in your heart against the fortunes of the world ?" Just a little exposure will settle most questions! If the Central Powers had dared to discuss the purposes of this war for a single fortnight, it never would have happened, and if, as should be, they were forced to discuss it for a year, war would have been inconceivable.

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