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OBLIGATORY ARBITRATION AND THE HAGUE

CONFERENCES

The kinds or degrees of obligatory arbitration advocated in the two conferences were three in number, and may be called, respectively, universal, inclusive, and exclusive obligatory arbitration.

Universal obligatory arbitration, or obligatory arbitration for all classes and cases of international differences, without any exception or restriction, was not only considered by the First Conference as entirely impossible under existing conditions, but was not even made the subject of a single delegation's "proposition."

In the Second Conference it was proposed by the delegation from the Dominican Republic, and Denmark "called the attention" of the conference to its three treaties (with the Netherlands, Italy, and Portugal) which provide for obligatory arbitration without restriction. The Dominican delegation based its proposition on the desire for arbitration so emphatically expressed by the representatives of nineteen American powers in the Conference of Rio de Janeiro. But the committee of examination, to which all the arbitration propositions were referred, decided unanimously that it was useless even to discuss this proposition, as it was certain to be rejected by the conference. This decision was generally acquiesced in, and no further serious reference to this kind or degree of arbitration was made during the conference.

Inclusive obligatory arbitration, or obligatory arbitration for certain specified classes of international differences, was proposed to the First Conference by the delegation from Russia, and to the Second Conference by the delegations from Portugal, Great Britain, Sweden, and Servia. In both conferences it was made the subject of long and earnest debate. The arguments advanced in its favor were that it would assert the principle of law in international relations and guarantee it against infractions and attacks; that it would neutralize vast domains of international relations by the elimination of numerous

and troublesome differences, which, though not often themselves a cause for war, are nevertheless embarrassing to diplomatic relations and create an atmosphere of distrust and hostility between nations in which a war may be readily enkindled by some chance spark; that it would enable states more readily to enforce their legitimate claims, and, what is more important, to free themselves from unjustifiable demands.

These familiar arguments met with their familiar acceptance, and no arguments whatever were advanced against this kind of obligatory arbitration per se. The bone of contention in both conferences was as to what classes of differences should be specified.

The Russian proposition to the First Conference included twelve classes, as follows: Disputes or claims relating to pecuniary damages incurred by a state or its citizens as a result of a wrongful action or negligence of another state or its citizens; disputes relating to the interpretation or application of treaties in regard to postal and telegraph systems, railways, the protection of submarine cables, means of preventing collisions of ships on the high seas, the navigation of international rivers and interoceanic canals, the protection of literary and artistic copyrights and of commercial patents, trade-marks, and titles, monetary and metrical systems, sanitary and veterinary rules and regulations against epizoöty, phylloxera and other scourges of agriculture, the regulation of inheritance, extradition, and mutual judicial assistance, and boundaries (in so far as these last relate to purely technical and nonpolitical questions).

To the above list of treaties, the committee of examination added, on motion of Count Nigra, of Italy, those relating to the free reciprocal aid of the sick and indigent. But it rejected a Belgian proposal to add commercial and consular treaties, and a Netherlands proposal to add treaties relating to the aid of sick and wounded soldiers in time. of war; and on motion of the United States delegation it struck from the Russian list treaties relating to the navigation of international rivers and interoceanic canals and those relating to monetary systems.

The Belgian proposal was rejected on the argument of Professors de Martens, of Russia, and Zorn, of Germany, that an obligatory arbitration clause could easily be inserted in commercial and consular

treaties a measure, said Count Nigra, of Italy, which the Italian Government "has already decided to adopt." The Netherlands proposal was rejected on the argument of Professor Zorn that it would result in insurmountable difficulties by subjecting military operations to obligatory arbitration. And the exclusion of the navigation and monetary treaties was due to the argument of Mr. Holls, of the United States, that the navigation of such rivers as the St. Lawrence, Rio Grande, or Columbia, and the control of the Isthmian Canal, would be regarded as preeminently American questions by the United States Government, which would not consent to their arbitration by a court composed mostly of Europeans; while the mere classing of monetary with metrical systems would affront a great political party, whose leading men look upon the fixing of a monetary standard as a most important function of a sovereign state, and who would undoubtedly defeat the ratification of the proposed agreement by the United States Senate.

The committee, having adopted on first reading its list of specified classes of differences, deferred its final decision until the various governments could be consulted. As a result of this consultation, Professor Zorn proposed the suppression of the entire list, for the reason that the German Government was not in a position to accept obligatory arbitration and felt that it had already conceded much in accepting the Permanent Court of Arbitration. Professor de Martens then proposed that the four classes of cases introduced by the German Government into its arbitration treaties with separate nations should be substituted for the list provisionally agreed upon. But the German representative declined this clever compromise, with the remark that

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after the Permanent Court had been put in operation the opportune moment might come when, after individual experiments, a list of cases obligatory for all could be agreed upon. But to force this development unduly would be to compromise the principle of arbitration itself, with which we all sympathize."

In the face of this important opposition, a determined effort was made by some members of the committee to have a majority recommendation of the proposed list reported to the commission and conference; but the representatives of Great Britain, the United States,

Italy, and Austria opposed this departure from the rule of unanimity which had thus far been observed. The committee accordingly reported, and the conference adopted, only the statement (article 19) that, independently of existing general or special treaties which impose on the signatory powers the obligation to have recourse to arbitration, these powers reserve the right to conclude, either before the ratification of the present convention or subsequent to that date, new agreements, general or particular, with the object of extending obligatory arbitration to all cases which they may consider possible to submit to it.

This statement of a "self-evident fact" was regarded as evidence of the First Conference's failure, in so far as obligatory arbitration was concerned; but the committee's refusal to push its list before the conference was justified on the ground that otherwise the Permanent Court could not have secured the sanction of the German Government and probably of several others.

That the work of the First Conference in the direction of obligatory arbitration was not entirely barren is evidenced by its adoption of article 27, which made it the duty of the signatory powers to remind the parties to a dispute that the Permanent Court is open to them, and which was advocated and adopted as a step in the direction of obligatory or at least of "forced voluntary" arbitration. Baron von Bieberstein, of Germany, also testified, in the Second Conference, to the fruitfulness of the First Conference's work in behalf of obligatory arbitration, as follows:

In the course of our debates the fortunate fact has been mentioned that a long series of other treaties of obligatory arbitration have been concluded between various states. This is genuine progress, and the credit of it is due, incontrovertably, to the First Peace Conference.

What has been called in this article inclusive obligatory arbitration was presented to the conference of 1907 by the Marquis de Soveral, of Portugal, who presented a list of specified classes. This list was based on the treaties concluded by various powers since 1899, and on the model list adopted by the Interparliamentary Union at its meet

1 Mr. Choate had said: "I believe that some thirty treaties have been thus exchanged among the nations of Europe alone, all substantially to the same purport and effect."

ing in London in 1906, which list, in turn, was based on the Russian list submitted to the First Peace Conference.

The Portuguese list was added to by several other delegations, and included all together thirty classes of differences. All of the classes proposed to the First Conference, with the exception of the navigation of international rivers and interoceanic canals, and of the treatment of wounded and sick soldiers, were mentioned in the list, and in addition were included those differences arising out of the interpretation and application of treaties relating to the following matters: Workingmen's protection, the gauging of ships, wages and estates of deceased sailors, regulations for commercial and industrial associations, the exaction of ordinary taxes and imposts from aliens, customs duties, the acquisition and ownership of wealth by aliens, civil or commercial procedure, repatriation, dues levied on ships (for wharfage, light-house service, and pilotage), and salvage dues imposed on damaged or shipwrecked vessels, private international law, emigration, geodetic questions, and diplomatic and consular privileges.

Some of these classes received long and earnest consideration in the committee of examination, while many of them were not discussed at all, and some were neither discussed nor voted upon. Treaties in regard to navigation and commerce, although not voted upon, received the longest consideration. An effort was made to decide upon some method of determining which of such treaties. should be regarded as purely judicial, and neither political nor economic, and which of them should be regarded as affecting neither the essential interests nor the independence of the parties to the dispute. This effort having failed, an attempt was made to classify such treaties according to the matters dealt with by them; but here also, as Dr. Drago, of Argentina, pointed out, a commercial treaty dealing with a single matter — import duties, for example might be either or both judicial and political; and, as Baron von Bieberstein observed, matters which are theoretically judicial may become political in time of controversy. A subcommittee was appointed, however, to analyze and classify the various kinds of commercial treaties, and its report enumerated several kinds; but each of these was considered to be liable to the objections just mentioned.

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