formal congresses and conferences, such as the Geneva Convention of 1864 setting forth the rules of law regarding the treatment of the wounded in the field.1 Such acts have multiplied rapidly since the opening of the present century. Thus we return, in the last stage in the formation of international law, to the practice of treaty negotiation.

From such acts of codification it is a slight step in point of form, although a tremendous stride in point of principle, to the action of legislation or the making of new law. The existing law is not only codified but also revised. Finally, entirely new law is adopted to supplement preexisting law. This law relates to fundamental constitutional arrangements in the society of nations, such as the neutralization of Switzerland or Belgium;3 and also to the details of international procedure, such as the rules adopted at the Hague in 1907 for the conduct of war on land. In the former action we reach the highest stage of international government. Lawmaking is the final process in the development of political organization and practice. We reach it thus early in the study of world government because it has developed in point of form out of diplomatic negotiation pure and simple, which is a very primitive form of international practice. And although international lawmaking is beginning to pass out of the form of treaty negotiation, it still retains that form as regards several vital features, such as the necessity for unanimous consent and the contractual form of the law produced, To these aspects of the case we shall have to turn later in connection with international conferences and congresses.

1Oppenheim, § 560.

Number of general international law-making treaties since 1800 by

decades:

PART IV

INTERNATIONAL ARBITRATION

CHAPTER XIII

GOOD OFFICES AND MEDIATION; COMMISSIONS OF INQUIRY

T is conceivable, perhaps, that international relations

year to year merely by means of the practices of diplomacy and treaty negotiation. If no other complicating factors were introduced in the problem these forms of international organization might be sufficient. As a matter of actual experience, however, they are not sufficient to meet all the needs of the situation. The reason for this is the appearance of what may be called the international dispute. The international dispute arises precisely because the procedures of diplomacy and treaty negotiation are inadequate to provide for the management of all future and contingent relationships between nations, and, in turn, once the dispute has made its appearance, the inadequacy of diplomacy and treaty negotiation to resolve the difficulty and settle the dispute is accentuated at each succeeding stage.

Direct personal diplomatic negotiation is not always inadequate to settle an international dispute, and, where successful, it constitutes the first and simplest method of removing the trouble which its own negligence or incapacity has allowed to develop. What happens here is that the machinery and practice of diplomacy as it is ordinarily conducted catches up with its task. It removes the dispute by securing a diplomatic agreement of one sort or another, including, as one of the possible forms of settlement, an international treaty.

This simple method of dealing with the international

dispute is not however, capable of resolving the more difficult and complicated questions which arise between nations. The technique of such a method is too primitive; it does not possess resources of procedure and treatment adequate for the task. There is nothing left to the contending parties but to continue to put forward their own views of the facts and the principles and to urge their claims and try to secure satisfaction of their interests by bargains and demands, persuasions, threats, or arguments. What is needed is an entirely new approach to the questions in dispute, and, particularly, an approach from a point of view, a right, and an interest, radically different from that of either of the two contending parties. That method and that approach have been found in the practices of mediation and arbitration, or, to speak in still broader terms, in the judicial settlement of international disputes.

There are two forms of diplomatic practice which serve to prepare the way for arbitration or judicial settlement proper. These are mediation and the still milder form of international regulation of international disputes, good offices. Each of these preliminary stages has its peculiar nature and function, and it is worth while to exert some care to draw clearly the distinctions between them. Thousands of newspaper readers in the United States were misled and confused in April, 1921, as to what was happening between the United States and Germany, in connection with the dispute between Germany and the Allies over the reparations question, by failure to understand the differences between good offices, mediation, and arbitration.

Both good offices and mediation begin within the field of simple diplomacy, but in the end they go very far beyond that field and get well over toward arbitration. On the other hand, both stop short of true arbitration, and good offices stop very far short of that point. The use of

'See literature cited below, Appendix B, § 13. The treatment in this and the succeeding chapter covers the subject to the end of 1918.