ARBITRATION, INTERNATIONAL

until io11 progress in arbitration had been confined within certain limits, questions involving national honour or vital interests being excluded from its operation. in rg11, however, an effort was made to widen its scope. the credit for the innovation is probably due to the united states, as the new idea was first embodied in treaties between that power and france and great britain respectively. the change consisted in an attempt to include within the scope of arbitration treaties all cases of international difficulty or dispute, without exception, a proce- dure being provided which varied according to the gravity of the matter at issue. the two treaties specifically referred to above have never been submitted to the test of an actual case and it is perhaps idle to speculate on their merits. arbitration treaties before the war.—<as between other powers, various arbitration treaties embodying to a greater or less extent the idea of an all-embracing agreement were made; and it is regrettable to record that those which were put to a severe test failed entirely to prevent a resort to force of arms, thus apparently demonstrating the truth of the argument that arbitration on questions involving national honour or vital interest was foredoomed to failure. in july ror4, arbitration on the disputed points in austria-hungary’s ultimatum was proposed by serbia, and britain proposed mediation. but this conciliatory procedure was unsuccessful. in the italo-turkish war no time was given for any possible pacific intervention, and in the austro-hungarian conflict with serbia the same method of excluding pacific intervention was adopted. in the italian conflict with greece over the albania murders it was the same again, in spite of the parties being pledged to arbitration. these instances showed that arbitration must be of immediate and automatic application if it is to prevent a disaster. some account of the leading provisions of the arbitration treaties of r91r between great britain and the united states and between france and the united states must be given. apart from the provision that the treaties were to embrace all manner of disputes and differences, various preliminary stages of procedure were provided, which may be summarised as follows :— 1. request by either party to submit any difference between them to a joint high commission of inquiry. 2. power to cither party to postpone the reference to the high commission for one year from the date of the request, in order to afford an opportunity for diplomatic discussion and adjustment of the questions in controversy. 3. appointment by each party of three of their nationals, these to form the joint high commission. 4. holding of the inquiry by the joint high commission, the in- quiry to be followed by a report upon the particular question or mat- ters referred to it, for the purpose of facilitating the solution of the disputes by elucidating the facts and defining the issues, the report to include also such recommendations and conclusions as may be appropriate. 5. if the difference persist, the case becomes the subject of an agreement to refer the matter to arbitration, such agreement to provide for the organisation of the tribunal, which will arbitrate, and to determine the question or questions at issue. the object of the treaties, however, was not only to provide automatic applica- tion, but also to divert attention from the issue to the method of settlement, and thusto enable diplomacy to gaia time, while providing the means of obtaining a calm examinations of the points involved. arbitration under the covenant.—since the world war a new era for arbitration has begun. arbitration had been regarded as having attained a sufficiently high status in international relations in being promoted by permanent treaties to the position of a recognised adjunct of diplomacy. the covenant of the league of nations gave it a much higher rank, and the activities with which it was sought to invest the league would practically displace diplomacy in its present representative form. arbitration tended to replace direct negotations between the ministers whose departments were concerned, suppressing, or at any rate relegating to a secondary position, the employment of the diplomatic channel. under the covenant the members of the league agree that if there should arise between them any dispute likely to lead arbitration, international to a rupture, they will submit the matter either to arbitration or to inquiry by the council of the league, anc they bind themsclves in no case to resort to war until three months after the award by the arbitrators or the report by the council. the members of the league agree that whenever any dispute shall arise between them which they recognise to be suitable for sub- mission to arbitraticn and which cannot be satisfactorily settled bv diplomacy, they will submit the whole subject-matter to arbitration. the members of the league also agree that they will carry out in full good faith any award that may be rendered and that they will not resort to war against a member of the league which complies therewith. in the event of any failure to carry out such an award, ie council shall propose what steps should be taken to give effect thereto. it is seen that these provisions do not pretend to include all difficulties, but are confined to such matters as all parties may regard as arbitrable. another clause, however, provides that “disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if established would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration.” the attitude of the british govt. in respect of these pro- visions of the covenant was expressed in a speech made by lord balfour on july 6 1925, in which he stated:— arbitration is the thing; there is no question which can arise which will not be submitted toarbitration. if arbitration be really observed, war will be impossible. if either party to a dispute refuses to arbi- trate or to carry out a decision of arbitration, our obligation and that of the other parties woukl be to throw in our whole strength to defend the aggrieved party. on the continent of europe this confidence in the future of arbitration is equally strong. before the world war, arbitration was regarded as a permissive method and though the term “ compulsion ” was used, it was merely in the sense that con- tracting parties had bound themselves to submit the cases specified in their engagement to arbitration. under the cove- nant, as lord balfour interprets it, compulsion is given a much more effective sense. geneva protocol.-to secure further the inclusion of all differ- ences between nations, and to apply compulsory arbitration as a substitute for war, the geneva protocol, adopted on oct. 2 1924, but never ratified by the powers, provided a systematic procedure of conciliation, arbitration, and forced compliance with the league’s decisions, for the prevention of war. this took the form of an exhaustive amplification of the above-cited articles of the covenant. its provisions were as follows:— 1. tf the dispute submitted to the council is not settled by it, - - the council shall endeavour to persuade the parties to submit the dispute to judicial settlement by arbitration. 2. (a) if the parties cannot agree to do so, there shall, at the request of at least one of the partics, be constituted a committce of arbitrators. the committee shall so far as possible be constituted ° by agreement between the partics. (o) if within the period fixed by the council, the parties have failed to agree, in whole or in part, upon the number, the names, and the powers of the arbitrators and upon the procedure, the council shall sctile the points remaining in suspense. it shall, with. the utmost possible despatch, in consultation with the parties, select arbitrators and their president from among persons who, by their nationality, their personal character, and their experience, appear to it lo furnish the highest guarantees of competence and impartiality. (¢) after theclaims of the parties have been formulated, thecom- mittee of arbitrators, on the request of any party, shall through the medium of the council request an advisory opinion upon any points of law in dispute from the permanent court of international justice (q.v.), which in such case shall meet with the utmost possible despatch. 3. hf none of the parties asks for arbitration the council shall again take the dispute under consideration. if the council reaches a report which is unanimously agreed to by the members thereof, other than the representatives of any of the parties to the dispute, the signatory states agree to comply with the recommendations therein. the protocol unfortunately amplified also the coercive clauses, military and economic, in case either party to a dispute failed to comply with the pacific solution proposed or arrived at by arch—archaeology the league. owing more particularly to these coercive pro- visions great britain repudiated the protocol. the united states, which had been foremost in promoting arbitration, has never adopted the covenant owing mainly to these very coercive provisions which the protocol made the mistake of amplifying. great britain’s repudiation of the protocol has prevented for the time being its general application. it is nevertheless impor- tant, as showing the length to which european statesmen are prepared to go in the enforcement of arbitration awards. _ as regards economic coercion against a power which declines to accept arbitration, it is not a principle much more feasible than coercion by force. suspension of trade between any two industrial countries may be as much a loss to the one as to the other. feeling in great britain and the united states seems practically unanimous in distrusting the application of any coercive method whether or not a domestic interest is involved. until some new method is found of accentuating moral force which will not have the defects of the sanctions provided by the covenant, the moral force of universal public opinion scems destined to be the only guarantee of respect for arbitration and its award. meanwhile germany, sweden, finland and switzerlana have concluded treaties of arbitration. in these a new element has been added to the system of compulsory treaties, in the form of a standing committee of competent persons appointed by the two contracting states, to which all difficulties can be referred for examination and counsel. considered in relation to the treaties of 1911, this development seems to constitute another step toward the solution of the problem of extending the scope of arbitration treaties so as to include questions of national honour and vital interest. at the sixth meeting of the assembly of the league of nations the failure of the protocol of 1924 was dealt with in a report containing the following paragraph:— at the moment when the declarations of certain governments have shown that an early entry into force of the protocol for the pacific settlement of international disputes is not to be expected, several delegations have been anxious to affirm the fidelity and una- nimity with which the members of the league remain attached to the triple object underlying that draft treaty, namely, arbitration, secu- rity, and disarmament, and toincdicate methods or measures by which an approach might be made to this object, pending the achievement of a general settlement which many consider indispensable. the government most particularly concerned in the wrecking of the protocol was that of great britain. its attitude produced among the other members of the league of nations the impres- sion that great britain, in spite of her active championship of arbitration, was not prepared to accept the obligations resulting from strict compliance with the provisions of the covenant. this impression was shared by many englishmen, but lord balfour’s statement made it clear that it was erroneous; and it was not surprising that, later on, the foreign secretary, sir austen chamberlain, should take the lead in calling a special conference to deal with the problems existing in central europe, under the auspices of the covenant itself. great britain thus showed that while observing her traditional attitude of distrust. towards international generalities, she was genuinely attached to the principle of arbitration and was ready to give it the widest feasible scope. lecarno pact.—the result of the conference called by the british govt. at locarno in oct. 1925 was a pact under which the powers, between whom difficulties are most lkely to arise, undertake in no circumstances whatever to resort to war. they pledge themselves to submit disputes of every kind to some form of peaceful procedure. this agreement must be taken in conjunction with article 16 of the covenant, which provides that disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which, if established, would constitute a breach of international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those generally suitable for submission to arbitration or judicial settlement. 157 both the geneva protocol and the pact of locarno adopted the same principle as that which underlay the abortive anglo- american treaty of 1897; though that treaty was called a treaty of arbitration it was at the same time a treaty of con- ciliation. it is interesting to note that lord salisbury, who acted, it is believed, on the advice of the late lord chief justice, lord alverstone, initiated the negotiations for the treaty in question in a draft, the first proposition of which was as follows: her britannic majesty and the president of the united states, shall each appoint two or more permanent judicial officers for the purposes of this treaty and on the appearance of any difference be- tween the two powers which, inthe judgment of either of them, can- not be settled by negotiation, each of them shall designate one of the said officers as arbitrator: ancl the two arbitrators shall hear and determine any matter referred to them in accordance with this treaty. this principle, though it was not adopted in the treaty of 1897, has been adopted in practically all the new treaties of arbitration entered into since the conclusion of the world war. the important object of international arbitration is further dealt with in a number of articles of which the following may be mentioned: evrore: history; league of nations; locarno, pact of; sanctions and guarantees; tacna-arica; world courr. bibliograpity.—the british year book of international law, current editions; raupports du conseil administratif de la cour permanente d' arbitrage, current editions; w. h. tatt, the united states and peace (1914); sir t. barclay, international practice and diplomacy, new methods (1917); j. b. scott, une cour de justice internationale (1918); m. erzberger, league of nations (eng. trans., 1919); l. oppenheim, the future of international law (1921); lord bryce, international relations (1922); documents for the year 1924, international conciliation (carnegie endowment, 1924); p. j. n. baker, the geneva protocol (1925). (t.. ba.) arch, joseph (1826-1010), british labour leader (see 2.342), died at barford, warwickshire, feb. 12 ror1g.