a compromis d'arbitrage, one of the minor forms of international treaties. It is in this document that provisions are made controlling the choice of arbitrators, the scope of the question, the time and place of the trial, the procedure at the trial,-including the languages to be used, the forms of argument and counter-argument to be permitted, the submission of evidence, and whatever else is necessary.2 The bases of the award are here specified and the document closes with provisions for the rendering of the award, provisions for carrying out the decision and, perhaps, for guaranteeing execution. This is the simplest and most primitive basis for an arbitral trial.1 Where a dispute involves several nations the compromis for arbitration may, of course, be signed by more than two parties. In that case the relative positions of the parties in the trial will be defined in the text. Very different from the compromis for the arbitration of a dispute which has arisen, and providing the machinery and rules for this arbitration, is the arbitration treaty proper, which provides for the submission in the future of disputes between the parties as they arise. Such an agreement may cover all varieties of disputes, or it may cover only a certain list of disputes described in general terms, or it may cover all disputes outside of a certain specified list of exceptions. In any case, the object is to provide in advance for the submission of a question to arbitration without leaving for discussion, at the time when the dispute arises, the question whether it shall be submitted or not. When a dispute has actually arisen between two nations, the atmosphere is not suitable for the conclusion of an agreement to arbitrate, even though the question be such that in general-apart from the current case-there would be no hesitation to submit it to arbitration. 1 Wilson, Cases, 83, for compromis between France and Germany in Casablanca case. Same, Arts. I, II, III, V, IX, and compromis between United States and Venezuela, 1909, Arts. IV, VI, in same, 212; also Hershey, § 311. The agreement & advance to submit certain questions to arbitration upon occurrence may take several forms. The earliest form was the arbitral clause, a clause inserted in a treaty dealing with commercial or territorial or any other subjects, providing that if disputes should arise in the future over the meaning of terms of the treaty or any questions arising out of the Treaty, these disputes should be submitted to arbitration.1 The arbitral clause was in use in ancient Greece, was not unknown in early modern times, and was revived in the treaty between the United States and Tripoli in 1796.3 Since 1875 it has been in common use.1 The arbitral clause was followed by the bi-lateral permanent arbitration treaty as just described, covering different questions of one sort and another, apart from any particular treaty. This is the prevalent type of arbitration treaty today. Examples of such treaties are to be found dating back to Medieval and even Greek and Roman times,5 but the full use of agreements for future arbitration came only in the modern period, chiefly after 1875.o The third stage is the multi-lateral or general arbitration treaty, providing for the submission to arbitration in the future of all disputes of a certain sort arising among 'Hershey, as cited. Treaty of Münster, 1648, Art. VIII; Peace of the Pyrennees, 1659, Arts. CVIII-CX; Treaty of Riswick, 1679, Art. VIII; in Moore, work cited, V, 4832 and following. Art. XII; in Malloy, 1787. Hershey, as cited, note 23; the clause may extend to disputes arising outside of the treaty in which it is found; same, note 24. Treaty of 1238 between Genoa and Venice; treaty of 1321 between Brittany and England; Moch, § 27, and Moore, as cited, 4831. Hershey, § 312; Mérignhac, 206; Moch, § 86; "Historical Light on the League to Enforce Peace," in W.P.F., Pamph. Ser., Vol. VI, No. 6, 8-9 (December, 1916). Example in Malloy, 290. Treaties for arbitration are naturally less numerous than arbitral cases, since several cases may be submitted under one treaty. The following table, based on the data given in Darby, Lafontaine, Mérignhac, and other works, represents approximately the multiplication of permanent treaties of arbitration from 1845 to 1914: 1845-1854... 1865-1874. 1875-1884. 1 2 1885-1894.. 1895-1899. 10 25 65 .100 the parties, and signed by a large number of states. This type of arbitration treaty is a little in advance of general usage today. Examples of general arbitration treaties may be found in Medieval Europe and in Greek times, but the device has never been widely adopted. Such examples as may be found all date from 1890 onward.2 There exist a few such treaties today, notably the Hague Convention relative to the collection of contract debts among nations and even here the result is accomplished by indirection,—but attempts made to secure the adoption of such treaties on a wide scale failed in 1899, 1907, and again in 1920.* For this, in the technical language of diplomacy, is "obligatory" arbitration. By this it is meant that, once such a treaty is concluded, the signatory states are under legal obligation to submit certain cases to arbitration when they arise. Of course, this obligation arises from a sovereign act of consent made at an earlier time, and is therefore a self-assumed obligation. In that sense it is not obligatory but voluntary. But at the time of the dispute the legal obligation is real and-what is, perhaps, more important-is felt very keenly in the state of opinion existing at the time of the dispute. On the other hand, even the existence of such a treaty does not avoid the necessity for a special agreement at the time of submission. This is due to the fact that the issue must be defined more precisely than can ever be done in advance by a general treaty, that judges must be chosen, times and places for the hearings selected, and all the many details of procedure arranged. No general standing arrangements of this kind exist. There are no standing 'Moch, § 26. 'Hershey, § 313. Text in Malloy, 2248. 'Hershey, § 313. A qualification should be made to cover the very recent action of some fifteen states in accepting such an arrangement in connection with the new Court of Justice established under the League of Nations; see below, Chap. XVI, end. courts, no forms of action, no sufficient code of procedure; and no way exists for making good these deficiencies except by special agreement at the time.1 This means that a large part of the force of any agreement in advance to arbitrate certain cases as they appear is destroyed. Not until, in addition to the promise in advance to arbitrate a specified set of cases as they arise, there exists a standing court, a prearranged method of initiating the action, and a previously established code of procedure ready for instant use, will the need for the special agreement at the time disappear. The questions specified for submission to arbitration vary greatly. No question is incapable of submission to a mediator, of course, for he may devise a formula of settlement in reliance solely upon his own ideas of convenience and expediency, apart from any law or formal equity, so long as he can secure its acceptance by the parties. Where legal standards are to be used in the settlement, however,— and agreements to arbitrate generally specify that such standards are to be so used, the range of questions capable of submission is immediately restricted to those on which there exist accepted rules or principles of law or equity, namely justiciable questions. Such are questions of treaty interpretation, which, as has been pointed out, was the earliest type of question submitted to arbitration. Such, likewise, are questions arising under national statutes and accepted rules of international law. Yet the great difficulty here resides in the number of questions of large importance which arise in international relations, for whose settlement there are no legal standards available. Turning to the other side of the question, there are certain types of questions which have commonly been excepted from the scope of pledges to arbitrate future dis 2 'Hershey, § 313. Same, § 319; also text of Art. I of proposed treaty of arbitration between Great Britain and the United States, signed in 1911, in Am. Jour. Int. Law, V, Supp., 253 (1911). putes.1 These are questions of honor and of vital interest, and questions affecting the national independence or the rights of third powers. These exceptions may, of course, be used as disguises for a reluctance to arbitrate based on other grounds. "National honor" may be employed to cover anything which it is desired to withhold from arbitration. The terms are so general that they are-like all general terms-subject to abuse. Yet they do mean something, and their abuse can usually be detected. The terms as properly used merit examination. The exception of national honor explains itself.2 No nation could bring itself to submit to arbitration a question imputing to it dishonor and shame, for the simple reason that the very admission of the possibility that the nation had acted dishonorably would itself be a dishonor to the state. What is to be treated as a question of national honor is, of course, a question of fact with which the law does not deal. The law merely says that such questions as are in fact felt to be questions of national honor may justifiably be withheld from arbitration. The more important fact is that conceptions of what affects the national honor are changing. The national sensitiveness of the early modern period, of the seventeenth and eighteenth and early nineteenth centuries-which made so much ado about questions of diplomatic precedence, which cast suspicion on the offer of good offices and mediation-is dwindling to a more prosaic and sensible tone. This is not true, of course, among the new states of eastern and southeastern Europe; and the exception proves the rule. Nations with secure prestige are not likely, in this unsentimental age, to hold out on this ground very long. Similarly with questions which affect the vital interests, the independence, the very existence of the state. No state could submit to arbitration a question which might 'Hershey, as cited, notes. 'Perla, entire, especially Part I. |