JOINT SESSION OF SUBSECTION 1 OF SECTION VI AND THE AMERICAN SOCIETY OF INTERNATIONAL LAW.

SHOREHAM HOTEL,

Wednesday morning, December 29, 1915.

Chairman, CHARLES NOBLE GREGORY.

Papers presented:

The attitude of American countries toward international arbitration and the peaceful settlement of international disputes. Papers by Walter S. Penfield and Jackson H. Ralston.

What means should be provided and procedure adopted for authoritatively determining whether The Hague conventions, or other general international agreements, or the rules of international law have been violated? In case of violations what should be the nature of the remedy and how should it be enforced? Papers by Theodore S. Woolsey and Edward A. Harriman.

Papers reported:

The attitude of American countries toward international arbitration and the peaceful settlement of international disputes. Papers by Eusebio Bracamonte, Francisco Capella y Pons, and Antonio

Madrid.

Attitude of Colombia toward international arbitration and the peaceful settlement of international disputes, by Arcesio Penagos y R. The right to safety in the high seas for the citizens of all the American Republics, by A. César.

The CHAIRMAN. Ladies and gentlemen, we have the pleasure this morning of listening first to Mr. Walter S. Penfield, of the bar of the District of Columbia, who will speak on "The attitude of American countries toward international arbitration and the peaceful settlement of international disputes." Mr. Penfield has been an especial student of Latin American history, literature, and affairs, and speaks upon this subject with the widest knowledge. I have great pleasure

in presenting him.

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THE ATTITUDE OF AMERICAN COUNTRIES TOWARD ARBITRATION AND THE PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES.

By WALTER S. PENFIELD,

Of the Bar of the District of Columbia.

Few years had elapsed after the discovery of America by Christopher Columbus before Europe established her colonies, in which her citizens, conquistadores, adventurers, and missionaries sought the fruits of the virgin soil of the New World. Three centuries after his arrival, America, conscious of its right to self-government, resolved to obtain its freedom. Under the flag of liberty, which was raised on high from the Delaware River to the southern peaks of the Andes, the people were banded together, anxious to receive their baptism of blood, provided only it made possible the securing of their own nationality. Years of suffering and fighting finally had its recompense, and America, covered with glory and secure in attaining the future which was awaiting it, gave life to a free people.

Finally the flags of the different States floated as emblems of sovereignty, and the dreams of Washington, of Bolivar, of San Martin and of Hidalgo crystallized in the liberty of the Americas.

With the discovery of the New World there was open to civilization a rich and fertile field, with its independence the cause of liberty was advanced, and now by its spirit, by its ideals, by its love for peace and by its asylum from the frightful conflagration which devours Europe, it has in its hands the mission of advancing the cause of arbitration as a medium of preventing and solving international conflicts.

America has accepted arbitration as a juridical principle, has practiced it in numerous cases, has taught it in its lecture halls, and has brought it to the foreground in its chancellories by means of treaties by which arbitration has found favor as a tie of fraternity between peoples and as a provision against the greatest of calamities under which humanity may suffer.

While the present world events appear to prove the inefficacy of arbitration, demonstrating with evident reality that it is an Utopia to endeavor to enchain brutal force before the rules of justice, nevertheless, in the reconstruction which comes after the war, America can perform an important rôle. Without hatred, without passion, without the bitter memory of a cruel campaign, it will be able to labor actively for peace and to insist on the settlement of all international disputes by means of arbitration or other peaceful methods. That such a rôle would not be difficult for her to assume is shown by what she has heretofore accomplished in arbitration and the peaceful settlement of international disputes.

ARBITRATIONS.

As early as 1794 the United States, through John Jay, succeeded in having written into the treaty with Great Britain a clause providing, in effect, for the submission to arbitration of differences between the two nations regarding the boundaries and the pecuniary claims of their nationals. In 1795 and again In 1802 the United States and Spain, by conventional agreements, settled by arbitration mutual claims of their nationals. In 1825 Brazil and Portugal likewise agreed to arbitration for the purpose of passing on claims originating during the war. Four years afterwards Brazil thus settled a similar controversy with Great Britain. In 1830 the Argentine and England, in 1839 Mexico and France and Mexico and the United States, and in 1840 the Argentine and France thus solved differences caused by claims brought on account of the war.

After a lapse of 30 years, from 1842 to 1871, when the Alabama case occurred, we find 35 questions submitted to arbitration, as much between American nations as between different European powers and American countries. In this lapse of three decades it is to be noticed that all the American nations, without exception, submitted different questions to arbitration, among which were some of such importance as that arising between the United States and Portugal on account of the destruction of the warship General Armstrong; between the United States and Great Britain in 1854 over fishing rights; between the United States and New Granada in 1856, by which was settled all the claims of American citizens and companies against New Granada; between Peru and the United States in 1862 relative to the capture of the Anglo-American ships Lizzie Thompson and Georgiana; between the United States and England in 1863, covering claims of the Hudson Bay Company; between Peru and Great Britain in 1864, entrusted to the decision of the senate of Hamburg, which decided the claim made by England against Peru on account of the imprisonment suffered by an English subject by the name of White; and between the United States and Brazil in 1870, for the loss of the ship Canada. From 1871 to 1910, or, in the course of 40 years, there was submitted to arbitral decision 125 matters of different kinds from pecuniary claims, which are the most frequent, to maritime controversies, and from rectification of frontiers to fishing zones and sovereignty over territory, covering a variety of judicial questions, involving both public and private law, the parties including all of the American Republics, 13 of the principal European countries, and various countries of minor importance in Asia.

BOUNDARY QUESTIONS.

Besides, from the second third of the nineteenth century, with the exception of the arbitral pacts of 1794, 1814, and 1827, between the United States and Great Britain over Canadian frontier questions, it is to be noted that complicated boundary disputes between the American States, which frequently approached near war, began to be settled by means of arbitral decrees. These boundary matters, which have been terminated in large part by arbitration between the United States and Canada, the United States and Mexico, the Argentine and Chile, the Argentine and Bolivia, Brazil and Colombia, Venezuela and Great Britain, the Argentine and Brazil, Chile and Bolivia, Peru and Bolivia, Mexico and Guatemala, Colombia and Costa Rica, and later Panama and Costa Rica, Ecuador and Colombia, Venezuela and Colombia, Colombia and Peru, and among different Central American Republics, although initiated, as has been said, about the middle of the past century, in their majority have been decided in the latter years of the last century and in the beginning of the present.

Among the American arbitration cases there is none of more importance than that of the Alabama, tried on account of claims presented by the American Government for damages inflicted to the merchant marine of the United States by the Alabama and other Confederate cruisers constructed and armed in ports of Great Britain.

The intrinsic importance of the controversy, the passion with which it had been considered, the consequence which it bore with reference to a doctrine of such importance as that of international neutrality, and the manner in which a country of the power of Great Britain accepted the award rendered against her, gave a sudden and formidable prestige to the cause of arbitra

tion and encouraged the belief that arbitration would be able to take the place of war.

In his work on Arbitration and The Hague Court, Gen. John W. Foster, formerly Secretary of State of the United States, in speaking of the Alabama case, says:

The nineteenth century was more fruitful than any similar era in the submission to the adjudication of special arbitration tribunals of the differences of nations insolvable by diplomatic methods. The most notable of these, and that which exerted the greatest influence upon the nations, was the arbitration of the bitter controversy between Great Britain and the United States, growing out of the American Civil War and the irritating questions existing with Canada, which were peacefully settled by the treaty of Washington of 1871. Of this the British statesman and writer, John Morley, says: "The treaty of Washington and the Geneva arbitration stand out as the most notable victory in the nineteenth century of the noble art of preventive diplomacy and the most signal exhibition in their history of self command in two of the three chief democratic powers of the Western World."

INTERNATIONAL PACTS.

From the date of their independence to the present time the countries of this hemisphere have entered into treaties providing for arbitration. On October 3, 1823, shortly after its independence, Mexico celebrated with Colombia a treaty of friendship, union, league, and confederation with the intention of creating a general congress of the American States, composed of plenipotentiaries for the purpose of cementing their relations and of constituting themselves as an arbitral judge and conciliator in their disputes and differences. Three years afterward it signed pacts of a similar nature with Central America, Peru, and again with Colombia.

In 1822 Colombia celebrated similar pacts with Peru and Chile, and in 1825 with Central America. And it signed arbitration treaties with the United States in 1824 and 1846, with Ecuador in 1832 and 1856; with Peru In 1829, 1858, and 1870; and with Venezuela in 1842.

By the treaty of Guadalupe Hidalgo of 1848 an end was put to the war which existed between Mexico and the United States. It is truly notable that in the same treaty which terminated the conflict, Mexico accepted the principle of arbitration, the agreement being that both Governments would endeavor to settle any differences which might arise, using for this end mutual representations and pacific negotiations. And the treaty further provided that if by these methods they should not succeed in agreeing, there would not be any resort to hostilities until the Government of that one which believed itself aggrieved may have considered maturely whether it would not be better that the difference be settled by an arbitration of commissioners named by both parties or by a friendly nation.

In the 10 years which followed the celebration of the first conference of peace at The Hague, from 1899 to 1909, there were signed 40 general treaties of arbitration, in which 16 republics of the new continent figured as parties. Brazil signed in three years, from 1908 to 1911, 29 treaties in which this recourse was agreed to. Last year Uruguay signed with Italy the most liberal treaty of this kind that exists until now between an American Republic and an European country.

THE "A. B. C." TREATY OF MAY 25, 1915.

The most recent treaty is the one signed on May 25, 1915, by the Argentine, Brazil, and Chile, which brings together the union known popularly as the "A. B. C." In the first article it is provided: "Controversies which, origi

nating from whatever question, between the three contracting parties, or between two of them, and which may not be able to be decided by the diplomatic channel, nor submitted to arbitration in accordance with existing treaties or with those which later on may be made, will be submitted to the investigation or report of a permanent commission constituted in the manner which article 3 provides." The high contracting parties agree not to engage in hostile acts until after the report of the commission, which the treaty provides for, has been produced or until the term of a year, to which article 5 refers, has passed.

From a study of the treaty it may be clearly seen:

1. That the permanent commission is a tribunal to which the contracting countries are to have recourse to solve whatever difficulty may arise between them.

2. That this tribunal is charged with preparing a report within a certain time, and does not have authority to pronounce a decree in the controversy.

3. That, nevertheless, it is evident that the fact that the commission makes a report will cause it to be prepared according to juridical standards on whatever matter may be submitted, although it may be of a political kind or affecting the national honor of any of the contracting parties.

4. That such permanent commission would appear to be an experiment on the success of which will depend the creation of a true tribunal of American arbitration.

CONSTITUTIONS.

Some of the countries of America have referred to arbitration in their constitutions. For example, Ecuador in its constitution of March 31, 1878, recommended arbitration as a means of avoiding war. The Dominican Republic in its constitution of May 20, 1880; Brazil in its constitution of February 24, 1891; and Venezuela in its constitution of June 21, 1893, prescribed this principle as a method which ought to be employed before appealing to any violent solution.

AMERICAN CONGRESSES.

It is interesting to examine the records of American Congresses to learn their attitude on the subject under discussion.

As early as the first Panama Congress of 1826 a pact of "union, alliance, and perpetual confederation" was signed by the States represented, declaring that "the contracting parties solemnly obligate and bind themselves to amicably compromise between themselves all differences now existing or which may arise in the future." This, however, was not ratified.

In 1831, 1838, and 1840 Mexico unsuccessfully tried to arrange for another congress. Finally one convened at Lima in 1847, at which a treaty was signed, providing, among other things, for a congress of plenipotentiaries, which was to meet periodically, and for the settlement of disputes in a friendly manner and by arbitration. It further provided that, if the arbitration should be rejected, then the congress of plenipotentiaries, after examining the grounds upon which each of the republics based its contention, would give such decision as seemed most just.

In 1864 another congress met at Lima, which adopted a treaty on the preservation of peace and provided for mediation and arbitration.

In 1880 the representatives of several countries, at a meeting in Bogota, signed a convention for general and absolute arbitration. Provision was made for the designation of an arbitrator in each case by special convention, in default of which the President of the United States would be the arbitrator. It