in a boundary dispute referred to arbitration it appeared that there was some territory to which neither party could establish a title in accordance with the acknowledged rules of international law. It would be desirable that the arbitrator, after awarding to each party all that it could lawfully claim, should possess the power of a mediator to propose a division of what remained. And he might be clothed with that power by special agreement, where the possibility that occasion might arise for its exercise could be foreseen."1 The value of good offices and mediation is very great. It is true that many opportunities have not been utilized which, if availed of, would have prevented hostilities; but, on the other hand, war has been prevented by such mediation; and if, as it seems probable, a period for negotiation and good offices will be created by a series of treaties, the possibility of the prevention and of a diminution of hostilities will be greatly increased. The articles of The Hague convention bearing upon the use of good offices and mediation and which give a legal right to nations to offer these friendly offices before and during hostilities have greatly increased the value of mediation. They were effectively used by France to effect an agreement between Great Britain and Russia in 1904, as to the Dogger Bank affair, and also by President Roosevelt to cause an opening of negotiations which led to the treaty of peace of Portsmouth between Russia and Japan, on September 5, 1905. 126. Arbitration.-"It is important," says Mr. John Bassett Moore, "from the practical as well as from the theoretical side of the matter, to keep in view the distinction between arbitration and mediation-a distinction either not understood or else lost sight of by many of those who have undertaken to discuss the one subject or the other. Mediation is an advisory, arbitration a judicial, function. Mediation recommends, arbitration decides. And while it doubtless may be true that nations have, for this reason, on various 1 Westlake's "Int. Law," part I, p. 366. occasions accepted mediation when they were unwilling or reluctant to arbitrate, it is also true that they have settled by arbitration questions which mediation could not have adjusted. It is, for example, hardly conceivable that the question of the Alabama claims could have been settled by mediation. The same thing may be said of many boundary disputes. In numerous cases the efforts of mediators have been directed, and successfully directed, to bring about an arbitration as the only means of putting an end to controversy. "But while bearing in mind the distinctively judicial character of arbitration, it would not be proper to minimize the importance of mediation as one of the forms of amicable negotiation. The congress of Paris of 1856, as well as the Congo conference of 1884, made a declaration in favor of systematic mediation." 12 Arbitration for the settlement of international difficulties or for the prevention of hostilities existed in the earliest times; with the Persians it was used and imposed upon cities which were engaged in disputes, and so far as the Greeks were concerned they repeatedly attempted to prevent war in this way, although it must be said they were not altogether successful in their efforts. In fact, the Greeks confined their efforts largely to themselves and not with foreign nations. Their arbitrations, moreover, did not cover great political questions, as every Greek city carefully preserved its independence, but they related "to disputes," says a French writer, "touching religion, commerce, boundaries, and the possession of contested territories, especially of the numerous islands scattered among the Grecian seas. 993 "Under the influence of religious and feudal ideas arbitrations were very frequent in the Middle Ages, which affords the remarkable spectacle of conciliation and peace making their 1 See Calvo, "Le Droit Int.," 4th ed., III, 413. way amid the most warlike populations that have ever existed. They were especially frequent in Italy, where in the thirteenth century there were not less than a hundred between the princes and inhabitants of that country. But when the papacy had renounced its rule over civil society and absolute monarchies gradually became established in Europe on the ruins of feudalism, arbitrations became more rare. They diminished during the course of the fourteenth and fifteenth centuries, and it is stated that from the end of the sixteenth century till the French Revolution they had almost disappeared from international usage."1 In the revival of the use of arbitration the Jay treaty of 1794 may be said to have paved the way. This treaty between the United States and Great Britain included in its stipulations the reference of several questions to arbitration. The same nations in the latter half of the nineteenth century gave a great impetus to arbitration by the celebrated and successful settlement of the Alabama and other claims by the Geneva arbitral tribunal of 1872. There have been two hundred and twenty-eight instances of formal arbitration between 1794 and 1901. The Hague conferences of 1899 and 1907 have also been particularly stimulating in the recourse had to such methods of settling international disputes. The first Hague conference produced the convention for the pacific settlement of international disputes already referred to under the head of mediation. This was readopted by the second Hague conference with slight changes (see Appendix II), and also a convention relative to the establishment of an international prizecourt. This has been also amended by agreement of the powers at the request of the United States and will be found in the final form in Appendix III. The second Hague conference also declared itself in principle in favor of obligatory arbitration and stated that those differences relating to the interpretation of international conventional 1 Moore, "International Arbitration," vol. V, p. 4829. stipulations are susceptible of being submitted to obligatory arbitration without any reservation. The failure of this conference to agree upon a definite plan of obligatory arbitration was mainly due to the opposition of Germany and Austria. 127. International Commissions of Inquiry. In the convention for the pacific settlement of international disputes adopted by the first Hague conference there were six articles devoted to the subject of international commissions of inquiry. These articles proved their value by the formation of the North Sea commission of inquiry of 1905, which was originated to deliberate upon the Dogger Bank affair in the North Sea, an occurrence which took place in the cruise of the Russian Baltic fleet to the Far Eastern waters during the Russo-Japanese War. It happened as follows: On the night of October 21, 1904, a portion of the Russian fleet fired on the fishing fleet from Hull, England, which was engaged in fishing on or near the Dogger Bank in the North Sea, apparently mistaking the fishing vessels for a squadron of torpedo-boats. Two men were killed, several were wounded, one of the craft sunk and others damaged. The tension at the time resulting between Great Britain and Russia was very great, and for a short time war appeared to be inevitable. The Russian Government maintained that Japanese torpedo-boats were concealed among the fishing fleet and that the firing was an operation of war. The presence of the Japanese torpedo-boats was denied by Great Britain. Russia expressed her readiness to make proper compensation if the facts were not as she stated. The dispute turned, therefore, on a question of fact, and hence finally the two governments agreed to an international commission of inquiry in accordance with the articles previously referred to of the first Hague conference. The commission made its report, which was practically accepted by Russia, and a sum of £65,000 was paid as a matter of indemnity. As a result of this commission of inquiry and its rules of procedure and general experience The Hague conference of 1907 made considerable additions and changes in the articles of the convention referred to, which now number twenty-eight on the subject of commissions of inquiry. These additions and changes are a decided advance upon those of The Hague conference of 1899. As Higgins well says: "If Great Britain and Russia had, at a time when relations between them were strained almost to the breaking point, been enabled to terminate the period of tension in a friendly manner, it was thought that other states might on future occasions do the same."1 The United States has in its diplomatic history created at various times mixed commissions for the settlement of various international claims and disputes. These commissions are particularly useful in settling questions of disputed boundaries, and, being small in number, they can do such work effectively. A mixed commission was established in Europe to draw up regulations for the navigation and policing of the Danube River. It was in due time succeeded by another mixed commission which supervised the carrying out of these regulations. This commission has executive powers, comes to a decision by a majority vote, and prescribes and enforces penalties for the violation of the river regulations. These mixed commissions consist as a rule of representatives of the two contesting powers and a neutral element with the deciding vote. In the Alaska boundary tribunal of 1903 the neutral element was wanting, the tribunal consisting of American and British members, the British members being composed of Canadian and one English member, the chief justice of England, who was president. The commission consisted of equal numbers on each side. 128. Obligatory Arbitration.-The final act of the second Hague conference of 1907 states that the delegates admitted the general principle of obligatory arbitration and goes on to say that certain disputes, such as those applying to the inter1 Higgins, "Hague Peace Conferences," p. 170. |