(Article 5) when once it was stated, either by one of the conflicting parties or by the mediator himself, that the means of reconciliation proposed by him were not accepted. (6) A new and particular form of mediation was recommended by Article 8. Before appealing to arms, each conflicting State was to choose a State as umpire, to whom it entrusted the mission of entering into direct communication with the umpire chosen by the other side for the purpose of preventing the rupture of pacific relations. The period of the mandate extended, unless otherwise stipulated, to thirty days, and during such period the conflicting States were to cease from all direct communication on the matter in dispute; it was to be regarded as referred exclusively to the mediating umpires, who were to use their best efforts to settle it. Should such mediation not succeed in bringing the conflicting States to an understanding, and a definite rupture of pacific relations take place, the chosen umpires were jointly charged to take advantage of any opportunity to restore peace. Offices ation. § 11. The value of good offices and mediation for Value the amicable settlement of international conflicts, be of Good it before or after the parties have appealed to arms, and Medicannot be over-estimated; and the Hague Convention, which is still in force between the parties to it, greatly enhanced the value of such assistance by giving third States a legal right to tender it. Hostilities have been frequently prevented through the authority and the skill of mediators, and furiously raging wars have been brought to an end through good offices and mediation of third States.1 The Dogger Bank incident of 1904 may be quoted as a case in which probable war was averted, for it was through the mediation of France that Great Britain and Russia agreed upon the establishment of an International Commission of Inquiry.2 And the good offices of the President of the United 1 See the important cases of mediation discussed by Calvo, iii. §§ 1684 1700, and Bonfils, Nos. 936-942. States of America were the means of bringing a war to an end by inducing Russia and Japan, in August 1905, to open the negotiations which led to the conclusion of the Peace of Portsmouth on September 5, 1905. Nowadays the importance of these means of settlement of international differences is even greater than in the past. The outbreak of war is under the circumstances and conditions of our times no longer a matter of indifference to all except the belligerent States, and no State which goes to war knows exactly how far such war may affect its very existence. Since the World War, this truth has found expression in the Covenant of the League of Nations, which has devised new means for settling international disputes. But still, if good offices and mediation are interposed at the right moment, they will in many cases not fail to effect a settlement of a conflict which could not be so well settled by other methods. IV ARBITRATION Grotius, ii. c. 23, § 8-Vattel, ii. § 329-Hall, § 119-Westlake, i. pp. 350368-Lawrence, § 221-Maine, pp. 210-218-Phillimore, iii. §§ 3-5Twiss, ii. §§ 5-6-Taylor, §§ 357-358-Wharton, iii. § 316-Hershey, Nos. 309-313-Moore, vii. §§ 1069-1088-Bluntschli, §§ 488-498Heffter, § 109-Bulmerincq in Holtzendorff, iv. pp. 30-58-Ullmann, § 154-156-Bonfils, Nos. 944-969-Despagnet, Nos. 722-741-PradierFodéré, vi. Nos. 2602-2630-Mérignhac, i. pp. 448-485-Rivier, ii. § 59 -Calvo, iii. §§ 1706-1806-Fiore, ii. Nos. 1202-1215, and Code, Nos. 1299-1385-Nys, ii. pp. 547-576-Martens, ii. § 104-Rouard de Card, L'Arbitrage international (1877)-Mérignhac, Traité théorique et pratique de l'Arbitrage (1895)-Moore, History and Digest of the Arbitrations to which the United States has been a Party, 6 vols. (1898)-Darby, International Tribunals, 4th ed. (1904)-Dumas, Les Sanctions de l'Arbitrage international (1905), and in A.J., v. (1911), pp. 934-957-Nippold, Die Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten (1907)— Reinsch in A.J., v. (1911), pp. 604-614-Scott, Conferences, pp. 188-253 -Lapradelle et Politis, Recueil des Arbitrages internationaux, i. (1798 1 The editor believes that the author would have still held this view. Moreover, the League of Nations may itself use its good offices or mediation as a means of settling a dispute. See below, §§ 256-25g. 1855), (1905)-Fried, Handbuch der Friedensbewegung, 2nd ed. (1911), i. pp. 137-184-Morris, International Arbitration and Procedure (1911) -Lammasch, Die Rechtskraft internationaler Schiedssprüche (1913), and Die Lehre von der Schiedsgerichtsbarkeit (1914)-Balch, International Courts of Arbitration (6th ed., with an introduction and additional notes by Thomas Willing Balch, 1915)-Barclay, New Methods of Adjusting International Disputes and the Future (1917)-Dungern in Z. V., vii. (1913), pp. 257-271-Jong van Beek en Donk in the Jahrbuch des Völkerrechts, i. (1913), pp. 375-403—Balch, Arbitration as a Term of International Law (reprint from the Columbia Law Review) (1915)— Penfield and Ralston in the Proceedings of the American Society of International Law, ix. (1916), pp. 40-62. bitration. § 12. Arbitration is the name for the determination Concepof differences between States through the verdict of tion of Arone or more umpires chosen by the parties. As there is no central political authority above the sovereign States, and no such international court as could exercise jurisdiction over them, State differences, unlike differences between private individuals, cannot as a rule be obligatorily settled in courts of justice. The only way in which a settlement of State differences through a verdict may be arrived at is by the conflicting States voluntarily consenting to submit themselves to a verdict of one or more umpires chosen by themselves for that purpose.1 Arbitra § 13. It is, therefore, necessary for such conflicting Treaty of States as intend to have the conflict determined by tion. arbitration to conclude a treaty by which they agree to this course. Such a treaty of arbitration imposes an obligation on both parties to submit in good faith to the decision of the arbitrators. Frequently a treaty of arbitration will be concluded after the outbreak of a difference; but it also frequently happens that States concluding a treaty stipulate by the so-called Compromise Clause,2 that any difference arising between them respecting matters regulated by the treaty shall 1 When, however, the proposed International Court of Justice has been set up, States will have a VOL. II. B further means of obtaining a judicial 2 See above, § 3. be determined by arbitration. Two or more States can also conclude a so-called general treaty of arbitration, or treaty of permanent arbitration, stipulating that all or certain kinds of differences arising in future between them shall be settled by this method. Thus Article 7 of the Commercial Treaty between Holland and Portugal1 of July 5, 1894, constituted such a general treaty of arbitration, as it stipulated arbitration, not only for differences respecting matters of commerce, but for all kinds of future differences which did not concern their independence or autonomy. Until the Hague Peace Conference of 1899, however, general treaties of arbitration were not numerous. Public opinion everywhere was aroused in their favour through the success of this conference, with the result that from 1900 to the present day many general arbitration treaties have been concluded.2 Who is to § 14. States which conclude an arbitration treaty have to agree upon the arbitrators. If they choose a third State, they have to conclude a treaty (receptum arbitri), by which they appoint that State as arbitrator, and it accepts the appointment. The appointed State chooses on its own behalf those umpires who actually serve as arbitrators. It can happen that the conflicting States choose a head of a third State as arbitrator. But he never himself investigates the matter; he chooses one or more individuals, who make a report and propose a verdict, which he pronounces. And, further, the conflicting States may agree to entrust the arbitration to any other individual, or to a body of individuals, a so-called arbitration committee or commission. Thus the arbitration of 1899 in regard to the Venezuelan Boundary Dispute between Great Britain, Venezuela, and the United States was conducted by a commission, sitting at Paris, consisting of American arbitrate? 1 See Martens, N.R. G., 2nd Ser. xxii. p. 591. and English members and the Russian Professor von Martens as president. And the Alaska Boundary Dispute between Great Britain and the United States was settled in 1903, through the award of a commission, sitting at London, consisting of American and Canadian members, with Lord Alverstone, Lord Chief Justice of England, as president. Principles ceed and § 15. The treaty of arbitration should stipulate the On what principles according to which the arbitrators have to Arbitra give their verdict. These principles may be the general tors prorules of International Law, or they may be the rules decide. of any Municipal Law chosen by the conflicting States, or rules of natural equity, or rules specially stipulated in the treaty of arbitration for the special case.1 Sometimes the treaty of arbitration stipulates that the arbitrators shall compromise the conflicting claims of the parties without resorting to special rules of law. In default of any express provision, it must be presumed that the verdict is to be given according to principles of International Law,2 or if there are none applicable, according to rules of equity. The treaty generally stipulates also rules of procedure to be followed by the arbitrators. If it does not, the arbitrators themselves have to work them out and communicate them to the parties. Force of § 16. An arbitral verdict 3 is final if the arbitration Binding treaty does not stipulate the contrary, and is binding upon the parties. The members of the League of Verdict. Nations have agreed by Article 13 of the Covenant to carry it out in good faith, and not to go to war with a 1 See Lammasch, Die Rechtskraft internationaler Schiedssprüche (1913), pp. 36-67, and Die Lehre von der Schiedsgerichtsbarkeit (1914), pp. 175186. See also below, § 335, concerning the 'Three Rules of Washington.' That as a rule arbitrators are bound to give their award according to law, and not according to other 3 Its effect is discussed in all its |