CHAPTER XV

AMICABLE SETTLEMENT OF DISPUTES AND NONHOSTILE REDRESS

90. The Amicable Settlement of Disputes

NOTWITHSTANDING the frequency of wars in recent years, it is generally admitted that in the settlement of international disputes war should be regarded as a last resort. Other means of amicable settlement should be exhausted before any measures of force are tried. Among these amicable means the most common are diplomatic negotiations, the good offices or friendly mediation of a third state, conferences and congresses, and arbitration.1

(a) The settlement of disputes by diplomatic negotiation By diplomatic follows the ordinary course of diplomatic businegotiation. ness, whether committed to regular or special agents. The larger number of disputed questions are settled by diplomatic negotiation.

(b) In the case of disputes not easily settled by diplomatic negotiations, a third state sometimes offers its good offices as mediator. Its part is not to pass on a dis

By the good offices of a third state.

puted question, but to devise a means of settlement. The tender involves the least possible interference in the dispute, and is regarded as a friendly act. Either disputant may decline the tender without offense. of the disputants may request the tender of good offices or of mediation. Ordinarily good offices extend only to the estab

1 Satow, 94; Higgins, Hague Peace Conferences.

One

lishing of bases of, and the commencement of, the negotiations. The more direct work of carrying on the negotiations is of the nature of mediation. The distinction between these is not always made in practice. Either party may at any time refuse the mediator's offices.

(c) The Hague Convention provides for an International Commission of Inquiry to facilitate the solution of differences

By the International Commission of Inquiry.

1

which diplomacy has not settled "by elucidating the facts by means of an impartial and conscientious investigation." "The Report of the Commission is limited to a statement of facts, and has in no way the character of an award. It leaves the conflicting Powers entire freedom as to the effect to be given to its statement." The provision for this International Commission of Inquiry was put to the test at the time of the RussoJapanese war, 1904-1905. A Russian fleet proceeding to the East in the early morning of October 22, 1904, fired upon certain British trawlers off the Dogger Banks in the North Sea. The claim was made that the firing was due to the apprehension that the vessels seen in the darkness were Japanese torpedo boats. There was immediately widespread popular clamor in Great Britain for war against Russia. Both states, however, agreed to submit the matter to a Commission of Inquiry to ascertain the facts. The majority of the commission found that the firing was not justifiable.2 Russia immediately paid compensation. The Commission of Inquiry was also resorted to by Holland and Germany in the case of the Dutch steamer, Tubantia, sunk by a torpedo in 1916. The Commission found that the torpedo was "launched by a German submarine."

The practicability of the International Commission of Inquiry has become established. As to methods of procedure and in certain other respects it was discovered that improvements might be made in those of the Convention of 1899. The Second 1 Appendix, p. xlviii. 2 U. S. For. Rel. 1905, p. 473.

Peace Conference at The Hague in 1907 accordingly made the necessary revision.1

(d) The settlement of questions liable to give rise to disputes by conferences and congresses is common, and implies a meeting of representatives of the interested parties for consideration of the terms of agreement upon which a question By conferences may be adjudicated. may be adjudicated. The modern tendency is to and congresses. provide for many international conferences. In general, the conclusions of a congress are more formal and are regarded as having more binding force than those of a conference, though this distinction is not always made. States not directly interested may participate in conferences or congresses, and sometimes as mediators play a leading part.

By League of Nations.

(e) Since the ratification of the Treaty of Versailles, January 10, 1920, the Covenant of the League of Nations has become binding on many states. Articles XI, XII and XIII of the Covenant particularly provide for settlement of disputes, and since the League of Nations came into existence many differences have been adjusted through its instrumentality; the Aaland Islands controversy was one of the first of these disputes.

(f) Arbitration involves an agreement between the disputants to submit their differences to some person or persons by whose decision they will abide. Arbitration By arbitration. has been common from early times. In the first Pan-American Conference in 1889 and subsequent similar conferences, the principle of arbitration received earnest support. The Convention for the Pacific Settlement of International Disputes signed at the First Hague Peace Conference, July 29, 1899, provides that "The Signatory Powers undertake to organize a permanent Court of Arbitration, accessible at all times

competent for all arbitration cases, unless the parties agree to institute a special Tribunal." It also provided for the general Appendix, pp. xliv et seq.

organization of the Court at The Hague, for the procedure, and for an award without appeal, unless the right to revision be reserved in the "Compromis." Other powers might adhere, and any contracting power might withdraw its adherence one. year after notification. The United States gave its adherence under reservation in regard to the Monroe Doctrine.

The Second Peace Conference at The Hague in 1907, desirous "of insuring the better working in practice of Commissions of Inquiry and Tribunals of Arbitration, and of facilitating recourse to arbitration in cases which allow of a summary procedure," concluded, October 18, 1907, a new Convention for the Pacific Settlement of International Disputes.1

The Hague Court met with increasing favor after 1902, when the United States and Mexico submitted to it the first case relating to the Pious Fund, and many cases have followed.2 (1) The Permanent Court of Arbitration at The Hague has competence for all arbitration cases.

The Permanent
Court of
Arbitration.

(2) It is constituted by the selection by each contracting power for a period of six years of four persons, at most. All of these are inscribed as members of the court. From this list of "Arbitrators" the states parties to a controversy must choose. Failing to agree on the constitution of the court, each party chooses two arbitrators, and these together choose an umpire, or failing this, a selected third power names the umpire, or two powers named by the parties make the choice, and to the arbitrators the compromis defining the case is submitted.

(3) The procedure if not determined in advance by the parties is prescribed in the Convention. There may be " written pleadings and oral discussions." Great freedom is allowed in securing the fullest presentation of each case.

(4) The decision of the tribunal is by a majority vote, and the award "must give the reasons on which it is based."

1 Appendix IV, pp. xli et seq.

2 Wilson," Hague Arbitration Cases, " p. 1.

(5) The publication of the award is in public sitting.

(6) Demand for revision of the award on the basis of the discovery of some new fact can be made if the right has been reserved in the compromis.1

Since the Hague Conference of 1907 many states have negotiated special arbitration treaties, and certain states have agreed to leave all disputes which arise between them to arbitral adjudication.

Of the leading cases of arbitration during the nineteenth century, the decision in one case was rejected by both parties to the dispute, and in one case rejected by one of the parties. In several other instances one party has refused to submit to arbitration questions readily lending themselves to such settlement, even though requested by the other party. Nineteenth-century arbitration cases numbered several hundred, and there have been a large number of cases since 1900.

Permanent

(g) Provision "for the establishment of a Permanent Court of International Justice" was made in Article XIV of the League of Nations Covenant of the Treaty of Versailles, June 28, 1919.4 "The Statute of the Permanent Court of International Justice" was approved by the Assembly of the League of Nations, December 13, 1920.5 The Court Court of Inter- was to consist of fifteen members, eleven judges national Justice. and four deputy-judges elected by the Assembly and Council of the League of Nations for nine years. The Court met for organization at The Hague, January 30, 1922, and the first decision was rendered, July 31, 1922, on the validity of the nomination, under article 389 of the Treaty of Versailles, of a delegate to the international labor conference.

1 For text of Convention, see Appendix, p. xli.

2 See, on this entire subject, Moore's " International Arbitration "; Holls's "Hague Peace Conference," 176-305; and for this case between the United States and Great Britain, 1 Moore, “Arbitrations," 137.

2 Moore," Arbitrations," 1749. 4 Appendix, cxiv.

Appendix, cxxii.