CHAPTER XV AMICABLE SETTLEMENT OF DISPUTES AND NONHOSTILE REDRESS 90. The Amicable Settlement of Disputes It is now 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 negotiation. follows the ordinary course of diplomatic business, whether committed to regular or special agents. The larger number of disputed questions are settled by diplomatic negotiation. By the good offices of a third state. (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 disputed 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. One of the disputants may request the tender of good offices or of mediation. Ordinarily good offices extend only to the establishing of bases of, and the commencement of, the 'See Holls's "Hague Peace Conference," 176 et seq. 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. By the International Com mission of Inquiry. (c) The Hague Convention provides for an International Commission of Inquiry to facilitate the solution of differences 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." 1 The provision for this International Commission of Inquiry was put to the test at the time of the Russo-Japanese 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 practicability of the International Commission of Inquiry was established. As to methods of procedure and in certain other respects it was discovered that improvements might be made. The Second Peace Conference at The Hague in 1907 accordingly made the necessary revision.3 (d) The settlement of questions liable to give rise to disputes by conferences and congresses is common, and implies 1 Appendix, p. 396. U. S. For. Rel. 1905, p. 473. By conferences and congresses. a meeting of representatives of the interested parties for consideration of the terms of agreement upon which a question may be adjudicated. 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. (e) Arbitration involves an agreement between the disputants to submit their differences to some person or persons by whose decision they will abide. ArBy arbitration. bitration has been common from early times. In the first Pan-American Conference in 1889 and subsequent similar conferences, the principle of arbitration has 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 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; have deemed it necessary to revise in certain particulars and to complete the work of the First Peace Conference for the pacific settlement of international disputes." A new Convention for the Pacific Settlement of International Disputes 1 was concluded October 18, 1907. The United States ratified this Convention under the same reservation as to the Monroe Doctrine and with the understanding that recourse to the court by the United States should be in accord with the general or special treaties of arbitration to which the United States might be a party. By the Convention of 1907 the Convention of 1899 was modified in order to meet more fully the objects for which it was originally drawn. At first the Hague Court of the Arbitration for International Differences was thought by many to be of questionable utility. The court has, however, met with increasing favor since 1902, when the United States and Mexico submitted to it the first case relating to the Pius Fund, and many cases have followed. (1) The Permanent Court of Arbitration at The Hague has competence for all arbitration cases. The Permanent (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 "pleadings and oral discussions." Great freedom is allowed in securing the fullest presentation of each case. 1 Appendix IV, pp. 389 et seq. (4) The decision of the tribunal is by a majority vote, and the award "must give the reasons on which it is based." (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 might arise between them to arbitral adjudication. Of about thirty 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.2 91. Methods of Non-hostile Redress Good offices, mediation, and arbitration can extend only to international differences of certain kinds. Such measures are not applicable to all cases of disagreement, nor are such measures always acceptable to both parties. Consequently certain other practices have arisen with the view of obtaining satisfaction by measures short of war. Formerly an individual might be commissioned by a letter of marque and reprisal to obtain satisfaction from a state for injuries which he had suffered. This practice is, however, discontinued,3 and satisfaction must be obtained through the proper state channels. The means by which satisfaction may be claimed vary, and are usually classed as retorsions, reprisals, of which embargo is an important variety, and pacific blockades. 1 For text of Convention, see Appendix, p. 389. 'See, on this entire subject, Moore's "International Arbitration"; Holls's "Hague Peace Conference," 176-305. 3 Phillimore, 21, 22. |