member complying therewith. As, however, no central authority exists above the States to execute the verdict against a State refusing to submit, in case of such a refusal the other party has the right to enforce the arbitral decision by compulsion. Moreover, under Articles 13 and 16 of the Covenant of the League of Nations, in the event of failure to carry out an award, the Council is to propose what steps should be taken to give effect to it, and the delinquent member is liable to the penalties for breach of covenant stipulated in Article 16.1 Yet it is obvious that an arbitral verdict is only binding provided 2 that the arbitrators have in every way fulfilled their duty as umpires, and have been able to find their verdict in perfect independence. Should they have been bribed, or not followed their instructions, should their verdict have been given under the influence of coercion of any kind, or should one of the parties have intentionally and maliciously led the arbitrators into an essential material error, the arbitral verdict would have no binding force whatever. Thus the award given in 1831 by the King of Holland in the North-Eastern Boundary Dispute between Great Britain and the United States of America was not considered binding by the parties, because the arbitrator had transgressed his powers. For the same reason, Bolivia refused to submit to the award given in 1909 by the President of Argentina in her boundary dispute with Peru. And in October 1910, the Permanent Court of Arbitration at the Hague, deciding the case of the United States of America against the United 1 See above, vol. i. § 167k. The question of an appeal against an arbitral award is discussed in a masterly way by Lammasch, Die Rechtskraft internationaler Schiedssprüche (1913), pp. 129-209, and Die Lehre von der Schiedsgerichtsbarkeit (1914), pp. 212-224. See also Donker Curtius and Nys in R.I., 2nd Ser. xii. 3 (1910), pp. 5 and 595; Casusus and 3 See Moore, vii. § 1082, and Moore, Arbitrations, i. pp. 85-161. See Fiore in R. G., xvii. (1910), pp. 225-256, and Martens, N.R.G., 3rd Ser. iii. p. 53. ferences can be by Arbi States of Venezuela concerning the claims of the Orinoco Steamship Company, annulled,1 with regard to certain points, a previous arbitration award given by Mr. Barge. § 17. It is often maintained that every possible What Difdifference between States could not be determined by arbitration, and, consequently, efforts are made to decided distinguish those groups of State differences which tration. are determinable by arbitration from others. Now, although all States may never consent to have all possible differences decided by arbitration, theoretically there is no reason to distinguish between differences on the ground that some can, and others cannot, be decided through arbitration. For there can be no doubt that, the consent of the parties once given, every possible difference might be settled through arbitration, either by the verdict being based on rules of International Law, or rules of natural equity, or by opposing claims being compromised. But, differing from the theoretical question as to what differences are, and are not, determinable by arbitration, is the question what kind of State differences ought always to be settled in this manner. The latter question was answered by Article 16 of the Hague Convention of 1899, and by Article 38 of the Hague Convention of 1907 for the Pacific Settlement of International Disputes, the contracting Powers therein recognising arbitration as the most efficacious, and at the same time the most equitable, means of determining differences of a judicial character in general, and in especial differences regarding the interpretation or application of international treaties. In 1903, Great Britain and France, following the suggestion of this Article 16, concluded a treaty in which they agreed to settle by arbitration all such differences of a legal nature as did not affect their vital interests, their 1 See Martens, N.R.G., 3rd Ser. iv. p. 79. independence, their honour, or the interests of third States, and many other States followed the lead. Great Britain, in the following years, entered into such1 arbitration treaties with Spain, Italy, Germany, Sweden, Norway, Portugal, Switzerland, Austria-Hungary, Holland, Denmark, the United States of America, Colombia, and Brazil. These agreements were concluded for five years only, but many of them have been renewed. Yet there is a flaw in all these treaties, because the decision as to whether a difference is of a legal nature or not, is left to the discretion of the parties. Cases have happened in which one party has claimed to have a difference settled by arbitration on account of its legal nature, whereas the other party has denied its legal nature, and, therefore, refused to go to arbitration. For this reason the arbitration treaties signed on August 3, 1911, between the United States of America and Great Britain and between the United States of America and France would have been epoch-making, had they been ratified, since Article 3 provided that, in cases where the parties disagreed as to whether or not a difference was subject to arbitration under the treaty concerned, the question should be submitted to a Joint High Commission of Inquiry; and that, if all, or all but one, of the members of that commission decided the question in the affirmative, the case should be settled by arbitration. This article was, however, struck out by the American Senate, and so these treaties were not ratified.2 It should be mentioned that, whereas most arbitra 1 It is to be noted that the arbitration treaty between Great Britain and Uruguay of April 18, 1918 (Treaty Ser. (1919), No. 3, Cmd. 150) is of a different variety, since it stipulates arbitration for all disputes of every kind. See Dennis in A.J., vi. (1912), pp. 614-628; Proceedings of the American Society of International Law, vi. (1912), pp. 87-114; Vlietinck in R.I., 2nd Ser. xv. (1913), pp. 307-332 and 417-444. As regards the so-called Bryan Arbitration Treaties, which are not all arbitration treaties, but treaties making provision for the appointment of International Commissions of Inquiry, see above, § 5. 1 tion treaties limit arbitration in one or more ways, exempting cases which concern the independence, the honour, or the vital interests of the parties, Argentina and Chili in 1902, Denmark and Holland in 1904, Denmark and Italy in 1905, Denmark and Portugal in 1907, Argentina and Italy in 1907, the Central American Republics of Costa Rica, Guatemala, Honduras, Nicaragua, and San Salvador in 1907, Italy and Holland in 1909, and Great Britain and Uruguay in 1918, entered into general arbitration treaties according to which such cases have not been excluded from settlement by arbitration. 2 the of the § 17a. The validity of existing treaties of arbitra- Arbitration has not been affected by the Covenant of the League tion under of Nations. Indeed, that Covenant, while giving added Covenant importance to arbitration as a means of settling international disputes, has made use of existing machinery. For by Articles 12 and 13 the members agreed that if there should arise between them a dispute likely to lead to a rupture, they would submit it either to arbitration or to inquiry by the Council. If they referred it to arbitration, as they undertook to do if it was one recognised by them as suitable for arbitration and incapable of satisfactory settlement by diplomacy, they agreed not to resort to war until three months after the award, which was to be made within reasonable time. Legal differences and those regarding the interpretation of treaties had already been selected by Hague Convention 1. as suitable for arbitration; and 1 Earlier than this, on July 23, 1898-see Martens, N. R. G., 2nd Ser. xxix. p. 137-Argentina and Italy, and on November 6, 1899 - see Martens, N.R.G., 2nd Ser. xxxii. p. 404 - Argentina and Paraguay had concluded treaties according to which all differences without exception were to be settled by arbitration, provided they did not affect the constitution of either country. A list of all the arbitration 3 See Article 21. Value of Arbitration. they are again recommended by the Covenant for similar treatment. 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 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 those which are generally suitable for submission to arbitration.' The Covenant does not establish a new arbitration tribunal for such disputes, but refers them to the court agreed on by the parties to the dispute or stipulated in any convention existing between them.'1 § 18. Thus arbitration every day becomes more and more important. History proves that in antiquity and during the Middle Ages it was occasionally 2 made use of as a peaceable means of settling international differences. But, although an International Law made its appearance in modern times, during the sixteenth, seventeenth, and eighteenth centuries very few cases of arbitration occurred. It was not until the end of the eighteenth century that it was frequently made use of. There were 177 cases from 1794 to the end of 1900.3 This number shows that the inclination of States to agree to arbitration had increased, and more recent developments show that arbitration has a great future. States and the public opinion of the whole world have become more and more convinced that there are a good many international differences which may well be determined by arbitration without any danger 1 As to the manner in which the award may be enforced, and the circumstances under which a member of the League has agreed not to resort to war, see above, § 16, and vol. i. § 167k. 2 See examples in Calvo, iii. §§ 1707-1712, and in Nys, Les Origines du Droit international (1894), pp. 52-61. * See La Fontaine, Histoire sommaire et chronologique des Arbitrages internationaux in R.I., 2nd Ser. iv. pp. 349, 558, 623. See also Scott, Conferences, pp. 188-253. |