Chapter V Manner of selection of the members tribunals. ARTICLE 24. Whenever the Signatory Powers wish to have recourse to the permanent Court for the settlement of a difference that has arisen between them, of particular the arbitrators selected to constitute the Tribunal which shall have jurisdiction to determine such difference, shall be chosen from the general list of members of the Court. If such arbitral tribunal be not constituted by the special agreement of the parties, it shall be formed in the following manner: Each party shall name two arbitrators, and these together shall choose an umpire. If the votes shall be equal, the choice of the umpire shall be intrusted to a third Power selected by the parties by common accord. If an agreement is not arrived at on this subject, each party shall select a different Power, and the choice of the umpire shall be made by the united action of the Powers thus selected. The Tribunal being thus constituted, the parties shall communicate to the Bureau their decision to have recourse to the Court, and the names of the arbitrators. The Tribunal of arbitration shall meet at the time fixed by the parties. The members of the Court, in the discharge of their duties, and outside of their own country, shall enjoy diplomatic privileges and immunities. It is believed that this Article will be found to provide for every possible eventuality in any actual dispute. It is quite probable that in many cases the four arbitrators selected by the parties may not be able to agree among themselves upon the subject of the umpire. It is also conceivable that the same third Power charged with the duty of selecting the umpire would not be agreeable to both litigants. It is, however, hardly probable that two neutral Powers, each selected in analogy to the appointment of "seconds" Chapter V under Article 8, should not be able to agree between themselves upon a suitable arbitrator or umpire for any conceivable controversy. the umpire The chief delegate from Sweden and Norway, The choice of Baron de Bildt, proposed to provide expressly that subject to either litigating Power might object to the choice of by the litigathe umpire, selected even with the aid of its own ting States. chosen arbitrators. It was, however, pointed out in the debate by M. Asser of Holland and Mr. Holls of the United States, that the agreement to arbitrate is not complete under this Article until each party has communicated its willingness to arbitrate to the international Bureau, together with the names of all the arbitrators whose judgment is to be invoked, including, of course, the umpire. It follows that the votes for umpire on the part of the arbitrators first selected by the parties are subject to the ratification and approval of the two Powers in controversy, inasmuch as either might decline to communicate the name of an obnoxious member of the tribunal to the international Bureau. In other words, in voting for the umpire, the arbitrators first. selected act simply as agents for the Government which has selected them, and the possibility of any Power being bound by the judgment of a court, a majority of whose members might be selected without the concurrence of each litigating Power, is carefully excluded. Any different provision would infringe upon national sovereignty, and hence be entirely inadmissible. Chapter V Dissent of privileges and immunities. These opinions were, on motion of Baron de Bildt, spread upon the minutes as authoritative interpretations of the Article, so far as his Government was concerned. Chevalier Descamps dissented very emphatically from the views of his colleagues, holding that the Governments were bound by the choice of their nominees, and the question was not decided by the Comité d'Examen as a body. Diplomatic The exact extent of the diplomatic privileges and immunities to be enjoyed by members of the Court outside of their own country, and also within its limits, if the tribunal of arbitration should be convened there, has not been fixed in detail. It was recognized by the Committee that the subject might well be left to the good sense of the parties concerned, with the result that satisfactory rules of procedure and precedence would no doubt be evolved in time. It will no doubt tend to increase the dignity and importance of the Court itself, if its members are recognized the world over, and even when not selected to sit upon any particular bench, as bearing an international or diplomatic character, and holding, as it were, a particular trust in behalf of peace and humanity. It would, however, defeat the very object of the Court, if any questions personal to the members themselves were permitted to assume the character of serious international problems, even to the extent which has been true in the history of international law, regarding the rights and privileges of ordinary diplomatic representatives. In this respect, as in many others, much will depend upon the precedents established by the good sense and tact Chapter V of the members first appointed. ARTICLE 25. The Court of Arbitration shall ordi- Place of sitting. narily sit at The Hague. Except in cases of necessity, the place of session shall be changed by the court only with the assent of the parties. The expression in the original treaty for the word necessity is force majeure or vis major, which has a well-recognized meaning in the Roman Law. It is therefore only in cases of compulsion by violence, either of war, riot, or governmental action, that the parties to the controversy lose control of the question of the seat of the Court of Arbitration. disposal of ARTICLE 26. The International Bureau at The Facilities Hague is authorized to put its offices and its staff placed at the at the disposal of the Signatory Powers, for the special performance of the duties of any special tribunal tribunals. of arbitration. The jurisdiction of the permanent Jurisdiction court may be extended under conditions prescribed of court may by its rules, to controversies existing between nonSignatory Powers, or between Signatory Powers and non-Signatory Powers, if the parties agree to submit to its jurisdiction. THE DUTY OF SIGNATORY POWERS, AND THE MONROE ARTICLE 27. The Signatory Powers consider it their duty, in case a serious dispute threatens to break out between two or more of them, to remind these latter that the permanent court of arbitration is open to them. Consequently they declare that the fact of reminding the parties in controversy of the pro be extended. Chapter V The French proposition. visions of the present convention, and the advice given to them, in the higher interests of peace, to have recourse to the permanent court, can only be considered as an exercise of good offices. This Article is the particular contribution of the French Delegation to the present convention, and its provisions were foreshadowed in the statement read to the arbitration committee by M. Bourgeois, as given on page 240. Originally the French Delegation favored a provision conferring upon the Bureau at The Hague the particular duty, in the form of a mandate from every Signatory Power, to remind any Power, before the outbreak of hostilities, of the provisions of the present convention, and to give the advice, in the superior interests of peace, to have recourse to the permanent court of arbitration. It was, however, pointed out in the debate by M. de Martens, that the chief of the international Bureau at The Hague could hardly be regarded as enjoying any particular moral authority, and that a communication from him, especially at a time when public opinion in the States in controversy might be excited and sensitive, would incur the danger of being not only disregarded, but resented or repelled with a snub, bringing discredit not only upon the Bureau, but also upon the Court and the whole principle of arbitration. The Committee adopted this view by a majority vote, France, England, and Switzerland favoring the original proposition, Germany, Belgium, Italy, Austria, and Russia voting "No," and Holland and the United States abstaining. The American |