they did not take time enough, or did not use diligence enough to give actual notice of the peace. * * No one can plead the destruction of property as the act of God, who is wrongfully in the use and control of such property. He is a wrongdoer from the outset; he has converted the property from the instant of possession, and the subsequent calamity which may happen, however inevitable it may be, is no excuse for its loss."41 In the case of the Mentor, an American vessel destroyed by vessels of the British squadron off Delaware in 1783, after cessation of hostiliities but before that fact had come to the knowledge of any of the parties, Sir William Scott said: "If by articles, a place or district was put under the king's peace, and an act of hostility was afterwards committed therein, the injured party might have a right to resort to a court of prize, to show that he had been injured by this breach of the peace, and was entitled to compensation; and if the officer acted through ignorance, his own government must protect him. For it is the duty of government, if they put a certain district within the king's peace, to take care that due notice shall be given to those persons by whose conduct that peace is to be maintained; and if no such notice has been given, nor due diligence used to give it, and a breach of the peace is committed through the ignorance of those persons, they are to be borne harmless, at the expense of that government whose duty it was to have given that notice."42 41 Moore, Int. Arb., IV, 3793. 42 1 C. Rob. (1799), 179, 183. The admiral in charge of the squadron, to which the vessels making the capture belonged, was neither present nor cognizant of the transaction; and the suit against him was dismissed. CHAPTER XXII. DETERMINATION OF DISPUTED INTERPRETATIONS OF TREATIES. $160. Difference Between the Enforcement of Treaties and of Private Contracts.—In the case of contracts between individuals either party may of right compel the submission of a disputed interpretation to an independent tribunal for adjudication. No such legal right exists as between independent states except by agreement between the parties. In the absence of such an agreement either party to the treaty determines for itself in last resort the meaning of the terms of its own obligation, and the only recourse open to the aggrieved party is a resort to force or to a denunciation of the treaty. This results from the fact that the contracting parties are sovereign states over which no tribunal, except by their own consent, exercises a jurisdiction to determine issues between them. The contracting parties determining for themselves the terms of their own contract, it is peculiarly the duty of each to act in the utmost good faith. §161. Obligatory Arbitration. (a) General International Conventions. Although sovereign states are not legally bound, except by their own consent, to submit to arbitration controversies arising in the interpretation of treaties, all the principal powers of the world have formally declared arbitration to be the most effective, and, at the same time, the most equitable means of settling disputes of this character; and numerous conventions have been concluded between different states by which they have bound themselves to submit, subject to certain limitations, such differences to arbitration. Article XVI of the convention for the pacific settlement of international disputes, concluded at The Hague, July 29, 1899, and to which the principal powers of the world are parties,1 reads: "In questions of a legal nature, and I Germany, Austria-Hungary, Belgium, Bulgaria, China, Denmark, Spain, the United States, Mexico, France, Great Britain, Greece, Italy, Japan, Luxemburg, Montenegro, Norway, the Netherlands, Persia, Portugal, Roumania, Russia, Servia, Siam, Sweden, Switzerland, and Turkey are signatory parties. Argentine Republic, Bolivia, Brazil, Chile, Colombia, Cuba, Dominican Republic, Ecuador, Guatemala, Haiti, Nicaragua, Panama, Paraguay, Peru, Salvador, Uruguay, and Venezuela are parties by adhesion. especially in the interpretation or application of international conventions, arbitration is recognized by the signatory powers as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle." This article is textually incorporated in Article XXXVIII of the convention concluded at the Second Hague Conference, October 18, 1907, except for the substitution of the word "contracting" for "signatory," and with the following additional clause: "Consequently, it would be desirable that, in disputes about the above mentioned questions, the contracting powers should, if the case arose, have recourse to arbitration, in so far as circumstances permit." In the original project presented by the Russian delegation to the Conference of 1899, arbitration was to be made obligatory in cases (not affecting the national honor or vital interests of the contracting states) of disagreement in the interpretation or application of treaties concerning postal and telegraphic service, international railways, protection of submarine telegraphic cables, rules for the prevention of collisions on the high seas, protection of literary, artistic and industrial property, monetary affairs, weights and measures, sanitary affairs, veterinary precautions, protection against the phylloxera, inheritances, extradition, mutual judicial assistance, and the navigation of international rivers and interoceanic canals, as also boundary conventions so far as they involved purely technical and not political questions.2 Obligatory arbitration of any dispute that might arise out of treaties concerning monetary affairs and the navigation of international rivers and interoceanic canals, was objected to, in the Comité d' Examen, by the American member; and, on the motion of the German member, who opposed the general principle of obligatory arbitration, the article was stricken out in the committee. During the proceedings of the Conference of 1907, various projects for obligatory arbitration of differences arising in the interpretation and application of treaties, subject to certain qualifications, were considered. A project providing that differences of a legal nature, and, "primarily, those relating to the interpretation of treaties," that might arise in the future and that could not be settled by negotiation, should, provided they did not involve the 2 Conférence internationale de la Paix, pt. 4, p. 202. vital interests, independence, or honor of the parties, or affect interests of other nations not concerned in the dispute, be submitted to arbitration, was supported by the votes of thirty-two delegations. Nine voted against it and three abstained from voting. In this project it was specifically provided that differences concerning the application and interpretation of conventional stipulations relative to reciprocal gratuitous aid to indigent sick, international protection of workingmen, means of preventing collisions at sea, weights and measures, measurements of vessels, wages and estates of deceased sailors, and the protection of literary and artistic works, were of a nature to be and were to be submitted to arbitration without reservation. Although this project met with the approval of a majority of the delegations, it was not adopted by the Conference as a part of the conventional agreement because of the prevailing wish for unanimity. The Final Act as signed by the delegations, October 18, 1907, contained, however, a recital that the Conference was unanimous in "declaring that certain disputes, in particular those relating to the interpretation and application of the provisions of international agreements, may be submitted to compulsory arbitration without any restriction." In the project of an arbitration convention recommended by the first international conference of American states in 1890, arbitration in controversies in regard to displomatic and consular privileges, boundaries, territories, navigation, indemnities, and the validity, construction and enforcement of treaties, was made obligatory, provided that such questions as, in the judgment of either party to the controversy, might imperil its independence should at the option of that nation be excepted. Likewise in the convention for obligatory arbitration signed, January 29, 1902, by 5 The delegations of the United States, Argentine Republic, Bolivia, Brazil, Chile, China, Colombia, Denmark, Dominican Republic, Ecuador, Spain, France, Great Britain, Guatemala, Haiti, Mexico, Nicaragua, Norway, Panama, Paraguay, the Netherlands, Peru, Persia, Portugal, Russia, Salvador, Servia, Siam, Sweden, Uruguay, and Venezuela voted in the affirmative; those of Germany, Austria-Hungary, Belgium, Bulgaria, Greece, Montenegro, Roumania, Switzerland and Turkey voted in the negative; and those of Italy, Japan, and Luxemburg did not vote. Id., I, 373. 6 Id., I, 370. 7 Id., II, 287. 8 S. Doc. No. 224, 51st Cong., 1st Sess. the delegates of nine of the nineteen states represented at the second international conference of American states, it was provided that all controversies that did not in the exclusive judgment of either of the interested parties affect its national honor or independence should be submitted to arbitration; and it was expressly declared that independence and national honor should not be considered as being involved in controversies in regard to diplomatic privileges, rights of navigation, and the validity, construction and enforcement of treaties." $162. (b) Special Clauses and Treaties for Arbitration.-A clause may be inserted in the treaty itself by which the contracting parties agree to submit to arbitration, as therein provided for, any controversy that may arise in the construction and application of its terms. For instance, in Article XXIII of the universal postal-union convention signed at Vienna, July 4, 1891, which article is renewed in the convention signed at Washington, June 15, 1897, it is provided that disagreements between two or more parties to the union as to the interpretation of the terms of the convention shall be decided by arbitration in the manner prescribed in the article.10 By a resolution introduced in the Chamber of Deputies of the Italian Parliament in November, 1875, and unanimously agreed to, the Government was requested to incorporate, if possible, in all treaties thereafter concluded, a clause to provide that any controversy that might arise in the execution or interpretation of the terms of the treaty should be referred to arbitration. A large number of the treaties entered into by Italy since that date have contained such provisions. Many of the treaties concluded by Norway contain similar clauses. The Institute of International Law at Zurich in 1877 recommended the incorporation into treaties of provisions of this character.12 Many special conventions have been concluded in which the two contracting parties have agreed to submit to arbitration con 9 S. Doc. No. 330, 57th Cong., 1st Sess., 41. IO 28 Stats. at L. 1093; 30 Stats. at L. 1645. II See for list, Report of M. le Chevalier Descamps to the First Hague Conference, Annex E. 12 In the unratified treaty between the United States and Denmark of January 24, 1902, for the cession to the United States of the Danish West Indies, provision was made that any differences arising in the execution or interpretation of the treaty should be submitted to the Permanent Court of Arbitration at The Hague. Art. VI. |