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epecting the legality of the remission of the Panama Canal tolls to American vessels engaged in the coastwise traffic. What are our moral obligations in the premises
Our Moral Obligations In The Premises.
The United States has been the consistent champion of international arbitration ever since this ancient practice was revived in modern times by the Jay Treaty of 1794. Among the many arbitrations to which this country has been a party, might be indicated various important boundary disputes, the Alabama Claims and Bering Sea Controversies, and the Northeastern Fishery Question (the latter involving an interpretation of Article I of the Treaty of 1898). As a keen student and practitioner of international law has well said:
"The experience of the United States affords abundant evidence of the fact that if an international controversy is of a legal character, it is capable of adjustment by arbitration whether the claims involved are national or private: whether the issue is one of fact or of law; whether the difference is one concerning the ownership of land or the control of water; whether the honour of the State is involved, or even its most vital interests."2
1 Hvdc, in 2 Proceedings of the Second National Peace Congress (1909), p. 232.
For a very complete account of the arbitrations to which the United States had been a party up to 1808. see Moore's monumental History and Digest of International Arbitration, in 5 vols.
See also Darby's International Tribunals (4th ed., 1904). for a brief digest of modern arbitrations. Out of 228 instances of " formal" arbitrations occurring between 1794 and 1901. cited by Darby, the United States was a party in 68 cases, Great Britain in 81, France in 28, Prussia or Germany in 17, and Russia in 8.
The United States At The First Hague Conference.
At the First Hague Conference of 1899 the United States was particularly active in urging arbitration and assisting in the creation of the so-called Permanent Court of Arbitration at The Hague. Our Government subscribed to the following declaration contained in the Arbitration Convention adopted at The Hague:
"In questions of a legal nature, and especially in the interpretation or application of International Conventions, arbitration is recognized by the Signatory Powers as the most effective, and at the same time the most equitable means of settling disputes, which diplomacy has failed to settle."8
•Article 16, of the Convention of 1899 for the Pacific Settlement of International Disputes. At the Second Hague Conference, the following recommendation waa added: "Consequently, it would be desirable that, in disputes regarding the above-mentioned questions, the Contracting Powers should, if the case arise, have recourse to arbitration, in so far as circumstances permit. Article 38 of the First Hague Convention of 1907.
The United States At The Second Hague Conference.
At the Second Hague Convention of 1907 the United States was one of the most vigorous advocates of a scheme for obligatory arbitration, and the American delegation proposed a project for a Court of Arbitral Justice which, if adopted, would have transformed The Hague Tribunal, or so-called Court of Permanent Arbitration created in 1899, into a real permanent High Court of International Justice, or Supreme Court of the Nations. Both schemes failed of adoption, but the Contracting Powers represented at The Hague declared themselves "unanimous": " (1) In admitting the principle of obligatory arbitration. (2) In declaring that certain disputes, in particular those relating to the interpretation and application of the provisions of international agreements, may be submitted to obligatory arbitration without restriction." A Convention providing for the establishment of a system of real international justice will probably be agreed upon at the Third Hague Peace Conference.
The Interpretation Op Treaties.
However authorities on international law may differ in their views as to the possible scope of arbitration as applied to the settlement of international disputes, there appears to be a consensus of opinion among them that interpretation of treaties is a proper subject for judicial determination. The rules for such interpretation are derived from general jurisprudence, and there is general agreement among the authorities as to the more important of these rules.4
* On the Interpretation of Treaties, see especially: Adler. in 26 Law Magazine Review (5th fseries. pp. 62ff. and 164ff.: Bonfils. Manuel de droit int. public (Fauchille's 5th ed.). Nos. 835-844; 1 Corbett, Cases, pp. 328-333: Hyde, in 3 American Journal of Int. Law (1910). pp. 46ff.; Hershey, Essentials of Int. Public Law (1912). sec. 299: 2 Fiore. Nouveau droit int. public (Antoine's French trans.). Nos. 1032-1046; Hall. Int. Law (Atlay's 6th ed.), pp. 327-334; 5 Moore, Int. Law Digest, sees. 763-764: 1 Oppenheim, Int. Law (1905), sees. 553-554; 2 Phillimore. Commentaries upon Int. Law, l't. V., eh. 8, sees. 64-95; Tic., in 17 Revue gSnerale de droit int. public. (1910), pp. 5-35; 2 IVadier-Fodere, Traite de droit int. public, Nos. 1171-1188; Taylor, A Treatise on Int. Public Law. sees. 377-393; Vattel, Le droit des gens (Eng. trans, in 1859), Bk. II., cb. 17; 2 Wharton, Digest of Int. Law, sec. 133; Wheaton (Atlay's ed.), sec. 287a; Wilson, Handbook of Int. Law. eh. 7; Woolsey. Introduction to Int. Law (6th ed.), see. 113.
"The method of interpretation consists in finding out the connection made by the parties to an agreement between the terms of their contract and the objects to which it is to be applied. This involves two steps. One is to ascertain what has been called the 'standard of interpretation'; that is, the sense in which the various terms are employed. The other is to learn what are the sources of interpretation; that is, to find out where one may turn for evidence of that sense." 5
s Hyde, in 3 American Journal of Int. Law (1910), p. 46.
The main purpose of interpretation is to determine the real intentions of the parties. To this end diplomatic correspondence, or interchange and expression of views leading up to the final negotiation and ratification of the treaty, would be nil-important. For instance, the fact that an amendment was lost in the Senate providing that the United States should reserve the right to discriminate in respect to charges in favour of our own citizen*?, would not be decisive in itself. All the circumstances leading up to this vote would have to be taken into account. Besides, there are many other conditions surrounding the case which would have to be considered, such, for example, as the bearing of the Clayton-Bulwer upon the Hay-Pauncefotc Treaty, more particularly whether the latter treaty was the main consideration for the abrogation of the former.
The Questions For Judicial Determination.
As stated at the outset, one of the main questions for judicial determination is: "Does the phrase 'of all nations' contained in Article III of the Hay-Pauncefo'te Treaty include the United States or does it mean all nations other than the United States?'' There seems here to be an ambiguity of language to which well-known rules of interpretation may be readily applied. But granied that Great Britain's interpretation of this phrase is correct, there remains the question: "Is the remission of such tolls a 'discrimination against any such nation,' in the sense of the treaty^' or is it perhaps a mere subsidy? Upon questions of this kind our Courts are constantly passing judgment. They are frequently called upon to decide whether a given practice, such as the granting of rebates in disguised forms, constitutes a discrimination or rebate in the sense forbidden by our statute or common law. Clearly these are questions which can and should be "settled by reference to known rules.*
s The above phrase set in quotation marks in Westlake's famous definition of a legal question. This definition has been accepted, so far as the writer is aware, by all authorities who have discussed this problem. Political differences are those which result from serious conflicts of political, social, racial, or economic interests. They are usually regarded as questions of national policy to the solution of which it is either difficult or impossible to apply judicial methods.
Difficulties In The Way Of Arbitration.
It has been maintained that there arc practical difficulties in the way of a just and impartial arbitration of this question, arising either from defects inherent in the arbitral system or from the alleged impossibility of finding Judges who do not belong to interested nations.
; It may be admitted that so-called Courts or commissions of arbitration too often, in the past, have sought a solution of the controversy submitted to them by way of compromise, rather than through the application of legal principles to the case in hand. But in the administration of international justice, during recent years, great progress has been made in the direction of substituting better methods, higher ideals, and more carefully selected Judges for mixed commissions and occasional tribunals. Arbitral decisions are coming more and more to represent the application of principles of law and equity by trained jurists working in a judicial spirit instead of by arbiters animated by a mere desire to compromise the issue. In a word, in the settlement of international differences, more advanced judicial methods and a better judicial organization are taking the place of the older system of haphazard, compromising arbitration.
The defects in the arbitral system of the past have been due mainly to a want of care in the selection of Judges, or to the lack of a carefully drafted agreement clearly defining the questions at issue and the rules of procedure to be observed. But none of these defects are beyond remedy, and the Hague Conferences of 1899 and 1907 have furnished us not merely with a better method of selecting-Judges than was previously in vogue, but also with an elaborate code of arbitral procedure which should prove adequate in most cases.
As to the alleged impossibility of finding fair and impartial Judges to settle this particular disagreement, it may again be admitted that the difficulty is a real one. But we are here dealing with a difficulty—not an impossibility. It is true that all the maritime powers of the world (including those of South America) are in a sense interested in the decision of this case. It has been suggested that "Switzerland is perhaps the only country capable of furnishing international jurists of high standing, who would probably be free from all pressure of selfish public opinion when acting as Judges of the case." 7
'The Outlook for Dec. 7th, 1912.
Switzerland could undoubtedly furnish them. So could many other countries, including Great Britain and the United States. In a tribunal composed wholly of arbitrators selected by the interested Governments for the settlement of the Alaskan boundary dispute (1903), Lord Alverstone, the President of the Tribunal, sustained the contention of the United States that it should continue to enjoy a continuous strip of mainland separating the British territory from the inlets of the sea. In nearly all countries of the civilized world there are to-day international jurists who, whether engaged in the practice of law at the bar, administering it on the bench, or holding chairs in our Universities and Law • Schools, possess the requisite knowledge, courage, and judicial spirit to declare and administer the law applicable to this and similar differences of a legal nature. The time has, indeed, passed when it can be seriously maintained that such disputes are incapable of judicial solution. Least of all can the United States afford to refuse to settle such a controversy whether by arbitral or judicial methods.