CHAPTER I AMICABLE SETTLEMENT OF STATE DIFFERENCES I STATE DIFFERENCES AND THEIR AMICABLE SETTLE- Twiss, ii. §§ 1-3-Hershey, No. 304- Ullmann, §§ 148-150-Bulmerincq in Holtzendorff, iv. pp. 5-12—Heffter, §§ 105-107-Rivier, ii. § 57Bonfils, No. 930-Despagnet, No. 469-Pradier-Fodéré, vi. Nos. 25802583-Calvo, iii. §§ 1670-1671-Martens, ii. §§ 101-102-Fiore, ii. Nos. 1192-1198, and Code, No. 1251-Wagner, Zur Lehre von den Streiterledigungsmitteln des Völkerrechts (1900). Political Differ § 1. International differences can arise from a variety Legal and of grounds. Between the extremes of a simple and Intercomparatively unimportant act of discourtesy com- national mitted by one State against another, and so gross an ences. insult as must necessarily lead to war, there are many other grounds, varying in nature and importance. State differences are correctly divided into legal and political. Legal differences arise from acts for which States have to bear responsibility, be it acts of their own or of their parliaments, their judicial and administrative officials, their armed forces, or individuals living on their territory.1 Political differences are the result of a conflict of political interests. But although this distinction is certainly theoretically correct and of practical importance, frequently in practice a sharp line cannot be drawn. For in many cases States either See above, vol. i. § 149. Inter national Law not exclusively hide their political interests behind a claim for an alleged injury, or make a positive, but comparatively insignificant, injury a pretext for the carrying out of political ends. Nations which have been for years facing each other armed to the teeth, waiting for a convenient moment to engage in hostilities, are only too ready to obliterate the boundary line between legal and political differences. Between such nations a condition of continuous friction prevails which makes it difficult, if not impossible, in every case which arises, to distinguish the legal from the political character of the difference. § 2. It is often maintained that the Law of Nations is concerned with legal differences only, political differences being a matter, not of law, but of politics. Now concerned it is certainly true that only legal1 differences can be Legal Dif. settled by a juristic decision of the underlying juristic ferences. question, whatever may be the way in which such a with decision is arrived at. But although political differences cannot be the objects of juristic decision, they can be settled short of war by amicable or compulsive means. And legal differences, although within the scope of juristic decision, can be of such kinds as to prevent the parties from submitting them to juristic decision, without being of such a nature that they cannot be settled peaceably at all.2 Moreover, as has just been pointed out, although the distinction between legal and political differences is correct in theory and of practical importance, nevertheless, in practice, a sharp line frequently cannot be drawn. Therefore the Law of Nations is not exclusively concerned with legal differences, for in fact most amicable means of settling legal differences are likewise means of settling political 1 On the 'justiciability' of international differences, see Reeves and Scott in the Proceedings of the American Society of International Law, ix. (1916), pp. 78-95. * See Balch in R. G., xxi. (1914), pp. 137-182. differences, and so are two of the compulsive means of settling differences—namely, pacific blockade and intervention. in contra tlement of § 3. Political and legal differences can be settled Amicable either by amicable or by compulsive means. Before distinc. the establishment of the League of Nations there were tion to Compulfour kinds of amicable means-namely, negotiation sive Setbetween the parties, good offices of third parties, Differ mediation, and arbitration.1 And there were also four ences. kinds of compulsive means-namely, retorsion, reprisals (including embargo), blockade, and intervention of third States. No State was allowed to make use of compulsive means before negotiation had been tried, but there was no necessity for the good offices or mediation of third States, and eventually arbitration,2 to be tried beforehand also. Frequently, however, States made use of the so-called Compromise Clause 3 in their、 treaties, which stipulated that any differences arising between them with regard to matters regulated by the treaties concerned, or their interpretation, should be settled through the amicable means of arbitration to the exclusion of all compulsive means. And in a few cases States had even concluded treaties stipulating that all differences, without exception, that might arise between them should be amicably settled by arbitration. These exceptions, however, only confirmed the rule that no international legal duty as yet existed for States to settle, or even try to settle, their differences 1 Some writers (see Hall, § 118, and Heilborn, System, p. 404) refuse to treat negotiation, good offices, and mediation as means of settling differences, because they cannot find that these means are of any legal value, it being within the choice of the parties whether or not they agree to make use of them. They forget, however, the enormous political value of these means, which alone well justifies their treatment; more over, there are some positive legal 2 Except in the case of contract See above, vol. i. § 553. 4 See below, § 17. of Inquiry was set up, remodelled the institution. A commission was to investigate the circumstances of the case, and issue a report 'limited to a statement of facts' and having in no way' the character of an award'; the parties were to be free as to the effect to be given to it. The more important of the twenty-eight articles (9-36) dealing with Commissions of Inquiry in Hague Convention I. were the following: (1) A commission was to be constituted by a special treaty between the parties. It was to determine the facts to be examined, the manner and period within which the commission was to be formed, and the extent of the powers of the commissioners (Article 10). If the treaty did not stipulate the manner in which the commission was to be formed, it was to be formed in the same manner as an arbitration tribunal under Articles 45 and 57 (Article 12). The parties might appoint assessors, agents, and counsel (Articles 10, 14). (2) The International Bureau of the Permanent Court of Arbitration was to act as registry for the commissions which sat at the Hague; but if they sat elsewhere, a Secretary-General was to be appointed whose office was to serve as registry (Articles 15-16). (3) The parties might agree upon rules of procedure; otherwise the rules comprised in Articles 19-32 were to be mander of the Baltic fleet, was responsible for the incident, but that these facts were not of a nature to cast any discredit upon the military qualities or the humanity of Admiral Rojdestvensky or of the personnel of his squadron.' In consequence of the last part of this report Great Britain could not insist upon punishment of the responsible Russian admiral, but Russia paid a sum of £65,000 to indemnify the victims of the incident and the families of the two dead fishermen. See Martens, N.R.G., 2nd Ser. xxxiii. pp. 641-716; Mandelstam in R. G., xii. (1905), pp. 161 and 351; Lammasch, Die Lehre von der Schiedsgerichtsbarkeit (1914), pp. 236-239. applicable (Article 17), and details of procedure not covered by the treaty or by Articles 19-32 were to be determined by the commission (Article 18). (4) The report of the commission was to be signed by all its members; if a member refused to sign, the fact was to be mentioned, but the validity of the report was not to be thereby affected (Article 33). The report of the commission was to be read in open court, the agents and counsel of the parties being present or duly summoned to attend; a copy was to be furnished to each party (Article 34). These stipulations are still in force as between the parties to Hague Convention I., although it may be that the new machinery devised by the League of Nations or provided in more recent treaties may have robbed them of much of their value. The author did not live to express an opinion. Different from these International Commissions, but inspired by the idea underlying them, were the Permanent Commissions of Inquiry constituted for differences between the United States of America and a great number of foreign States,1 by the series of so-called Bryan Arbitration Treaties signed at Washington in the autumn of 1914. These treaties were not all identical, but had the following features in common: The High Contracting Parties agreed to refer all disputes which diplomatic methods had failed to adjust to a Permanent International Commission for investigation and report, and they agreed not to begin hostilities before the report was submitted. The Permanent Commissions were to be composed of five members; each of the parties choosing one of its own subjects and one citizen of some third country, 1 See above, vol. i. § 50, and A.J., vii. (1913), p. 823, viii. (1914), p. 565, and ix. (1915), pp. 195 and 494. The treaty with Great Britain was signed on September 15, 1914 (Treaty Ser. (1914), No. 16, Cd. 7714), and ratified on November 10, 1914. |