be left to a third Power. If they cannot agree on a third Power, then each side is to nominate one Power, and the two Powers so nominated are to proceed to appoint an umpire; but in the event of the latter not proceeding to make any appointment within two months, then each is to nominate, from the list of members of the Permanent Court, two candidates, not being members already selected, and not being nationals of either of the countries at variance, and from amongst such candidates an umpire is then to be appointed by lot (Art. 45). The tribunal having been thus constituted, the parties thereupon notify to the Bureau their intention to proceed with the arbitration, with the text of their compromis (g) and the names of their arbitrators; and the Bureau thereupon concludes the necessary arrangements for the meeting. In the exercise of their duties and outside their own country, the members of this tribunal are to enjoy diplomatic privileges and immunities (Art. 46). It is the duty of all signatory Powers to remind disputants that the Permanent Court is open to them (Art. 48); and the jurisdiction of this Court may be extended by agreement to noncontracting Powers (Art. 47).

2. The Code of Procedure. The convention also provides a code prescribing the procedure to be followed in arbitration proceedings with respect to the submission of the matter in issue, and the conduct of the case before the tribunal (Arts. 51 to 85). Amongst other things it is provided that the parties shall sign a compromis stating the subject in dispute, and other terms and conditions of the arbitration (Art. 52). This may be settled by the Court if both parties so agree; or even at the request of one party in certain exceptional cases, if all other attempts to reach an understanding have failed. These exceptions comprisecases where the dispute is one covered by a general arbitration treaty (h) which provides for a compromis and does not preclude its settlement by the Court (i);-and cases where the dispute arises out of contract debts claimed by one Power as due to its subjects, as to which an offer of arbitration has been accepted, unless some other provision has been made for the settlement of the compromis (Art. 53). In such cases the commission for the settlement of the compromis is to consist of five members, selected in the same manner as a court of arbitration (Art. 54); and unless otherwise agreed, such commission shall afterwards form the arbitration tribunal (Art. 58). Other provisions relate to the presidency of the tribunal (Art. 57); the appointment of arbitrators in the place of those who have died or resigned (Art. 59); the place of sitting (Art. 60); questions of pleading, evidence, and discussion (Arts. 63 et seq.); the making and effect of the award, from which there is to be no appeal (Arts. 78 et seq.); and the question of costs (Art. 85). The convention also provides a body of special rules of a less elaborate kind, which are designed to facilitate arbitration in disputes admitting of a summary procedure (Arts. 86 to 90).

(g) The preliminary agreement defining the points at issue and arranging the procedure to be followed.

(h) Made or renewed after the convention.

(i) Art. 53 (1); although in such a

case a declaration by the other party that the case is not one intended for compulsory reference is to be conclusive unless the treaty expressly reserves this question for the Court.

(iv) General Provisions.-The convention, when ratified, is to replace as between the contracting Powers the earlier convention of 1899 (Art. 91). All ratifications are required to be deposited at The Hague as soon as possible. The first ratifications are to be accompanied by a procès-verbal, signed by the representatives of the ratifying Powers and by the Netherlands Minister for Foreign Affairs. Subsequent ratifications are to be by written communication addressed to the Netherlands Government, and accompanied by the instrument of ratification. Copies of these instruments, with the dates of ratification, are thereupon to be forwarded by the Netherlands Government to all Powers invited to the second Peace Conference (Art. 92). Non-signatory Powers invited to the second Peace Conference may adhere to the convention; and even other Powers, with the consent of the contracting parties (Arts. 93 and 94). Any signatory Power wishing to denounce the convention must give notice of its intention to the Government of the Netherlands, which will then communicate the fact, together with the date at which it was received, to other Powers; but the denunciation is only to affect the notifying Power, and is only to take effect after one year from the date of notification (Art. 96). Similar forms, as regards ratification, notification of subsequent adhesion, and denunciation, are prescribed under the other conventions framed by the conference. These forms, it will be seen, bear some resemblance to the notarial proceedings frequently prescribed by municipal law, in the case of contractual engagements between private persons; the function of Notary-General as between States having apparently been committed to the Netherlands Government. Up to the 30th of June, 1908, this convention had been signed by forty-four Powers, although in some cases subject to certain reservations.

Proposed New Court of Arbitral Justice.-Another proposal for promoting international arbitration is embodied in a draft convention which is also annexed to the Final Act. This convention, however, was not formally adopted by the Conference, owing to disagreements which arose as to the methods to be followed in the appointment of the judges, although it is recommended for adoption if and when this difficulty may have been overcome. In this it is proposed to establish a new Court, to be known as the "Court of Arbitral Justice," consisting of paid judges representing the different juridical systems of the world. This Court, acting through delegations of three judges appointed annually, would be permanently and constantly available, and would be capable of dealing immediately with all preliminary or minor questions, without the need of recourse to any special appointment. Such a Court, it was conceived, being an actual and not a mere potential body, would be at once more readily available and more easy of access than the Permanent Court; and would, if its jurisdiction were frequently resorted to, ensure a certain continuity in the jurisprudence of arbitration. But it was not to supersede the Court established by the Peace Convention, and was, indeed, to stand in the same relation as that Court to the Administrative Council and the Bureau; whilst the same rules of procedure were to apply, except where otherwise provided by the convention (Art. 22). The convention for

the establishment of an international Prize Court will be considered hereafter (k).

Voluntary Arbitration.-Arbitration is defined in The Hague Peace Convention as the settlement of disputes between States, by judges of their own choice, and on the basis of respect for law (Art. 37). Recourse to this mode of settlement may be secured either (1) by virtue of the facilities provided by the convention itself, this method being recognised as peculiarly applicable to disputes of a legal nature (Art. 38); or (2) by virtue of special treaties concluded between particular Powers, which are also contemplated by the convention (Art. 40). Both these methods may be considered as voluntary forms of arbitration (1). The facilities and proceedings under the convention have already been described. Turning, then, to special treaties, we find that a large number of such treaties have already been concluded, although they vary greatly in their scope. By some treaties the contracting parties agree to refer to arbitration all disputes that may arise between them, without exception; such is the case with a treaty concluded in 1904 between Denmark and the Netherlands (m). By other treaties the contracting parties agree to refer to arbitration, and generally to that of The Hague tribunal, all disputes falling under certain categories; although questions affecting the "national honour," "independence," or even "vital interests are commonly excluded. So by the Anglo-French Arbitration Treaty of 1903, it was agreed for five years to refer to The Hague tribunal "all differences of a juridical character, or relating to the interpretation of existing treaties, incapable of solution by diplomacy, which do not involve the vital interests, or independence, or honour of the contracting parties, or affect the interests of a third party." And since October, 1903, similar agreements, limited in their scope, have been entered into by over forty Powers. By other treaties or more commonly by arbitration clauses inserted in treaties, dealing primarily with other matters, the parties agree to refer to arbitration any differences that may arise between them with respect to some particular matter. It is of course possible to regard all such treaties as involving a certain compulsory element (see Art. 40), inasmuch as they purport beforehand to render all controversies within the scope of the treaty determinable by arbitration, and not by recourse to other methods which would otherwise be available. But, in fact, if one of the contracting parties refused to proceed, there would, except to the extent indicated below, and save for the sanction of international opinion, be no means of either defining, or enforcing the actual submission of, the issue. It is, moreover, difficult to assign any limits to such exceptions as "national honour,' "independence," "vital interests," by which such treaties are often safeguarded (n). In 1908

(k) Both this convention, and the declaration of maritime law framed by the International Naval Conference, 1909, will be dealt with in vol. ii.

(1) Although subject to a certain element of compulsion as regards the framing of the compromis, in certain cases; infra, p. 40.

(m) Similar treaties have also been

concluded between other Powers, but they are for the most part Powers as between whom vital differences are scarcely likely to arise, such as Belgium, Switzerland, Spain on the one side and some of the American republics on the other; see Westlake, i. 338.

(n) As to the general limits of arbitration, see Westlake, i. 337 et seq.

treaties of arbitration were also concluded between Great Britain and the United States; the United States and Spain; the United States and Denmark; and the United States and France-the last extending to any issues that may arise between the two countries. During the year 1914 the United States concluded nineteen treaties for the advancement of peace with China, Denmark, France, Great Britain, Italy, Norway, Portugal, Burma, Spain, Sweden, and a number of South American States. These treaties provide that all disputes of every nature whatsoever, other than disputes otherwise provided for, shall be referred to a permanent international commission composed of five members appointed by the parties as therein provided. The parties agree not to declare war or begin hostilities during the commission's inquiry and before its report is issued (o).

Compulsory Arbitration.-The question of the adoption of a system of compulsory arbitration in certain cases was also considered by the Conference of 1907, but failed to reach any embodiment in the shape of a convention. Nor does the system which was considered by the Conference appear to have involved any real element of compulsion; or, indeed, anything more than a formal undertaking by which the signatory Powers were to bind themselves to accept arbitration unconditionally, in certain classes of cases. Nevertheless the Conference, as we have seen, included in its Final Act a declaration unanimously admitting the principle of compulsory arbitration, and affirming also that certain disputes, and particularly those arising out of the interpretation and application of international agreements, might be made the subject of compulsory arbitration without any restriction. Further, by the Peace Convention, the Permanent Court is, as we have seen, empowered to settle the compromis, or agreement for reference, at the request of one party only,-in cases where the dispute falls within a general treaty of arbitration made after the convention, so long as this provides for a compromis and does not exclude its settlement by the Court, and provided that the other party does not deny its applicability, and, also, in cases where the dispute relates to contract debts, and arbitration has been accepted without any stipulation that the compromis should be otherwise settled (Art. 53). Among the difficulties incident to the adoption of a system of compulsory arbitration are (1) the want of some executive power wherewith to enforce both the submission of the issue and the performance of the award; (2) the difficulty of determining what issues should be made the subject of compulsory reference; and (3) the difficulty arising from the vague and unsettled character of many of the rules of international law. The last of these defects will, it is believed, be gradually surmounted (p). The second difficulty may perhaps be solved by looking to the character of those disputes which have been the subject of arbitration, and especially of successful arbitration, in the past. These may be approximately grouped as follows: (a) boundary disputes; (b) claims for damage for an act admittedly wrongful; and (c) disputes involving questions of legal right, such as those indicated by the Final Act of The

(0) A. J. I. L., 1916, Supplement, 263-309.

(p) Supra, p. 10 et seq

Hague Conference (q). Disputes falling under any of these heads ought, unless complicated by other issues, to lend themselves most readily to settlement by arbitration. There are, however, circumstances likely to encourage a resort to voluntary arbitration as a method of settling international disputes. These are: (1) the intolerable strain on the national resources, the dislocation of industry, and the consequent danger of social revolution, which modern war on a large scale is likely to involve; (2) the progress of scientific invention and the increased efficiency of modern methods of destruction; (3) the fact that, owing to the complexity of modern life, war between two or more States of any magnitude is likely to affect seriously the interests of other States; and (4) the growing strength of international opinion and international morality. These causes should serve to impose some considerable restraint on war in the future, save, perhaps, in cases where it is the outcome of national passion, or the dictate of selfpreservation, or a necessary condition of national or economic expression. Since the "Pious Fund" arbitration, seventeen cases have been heard by the Permanent Court of Arbitration; and although its awards may have failed to give complete satisfaction to all the parties, they have been loyally accepted, and disputes which might have resulted in armed conflict amicably settled.

Judicial Settlement.-By the Covenant contained in the Peace Treaty of Versailles, 1919, the Hague Convention for the Pacific Settlement of International Disputes is by implication recognised, and consequently the Permanent Court of Arbitration is maintained. In accordance with the Covenant, the League of Nations was formally constituted in January, 1920, and in the following December the Permanent Court of International Justice was established by the League. By an ingenious scheme the judges are to be elected regardless of nationality by the League from persons nominated by the national groups in the Court of Arbitration. The Court now consists of fifteen members, eleven titular and four supplementary judges, to hold office for nine years. They must be persons of high moral character, possessing the qualifications required in their respective countries, for appointment to the highest judicial office, or jurists of recognised competence in international law. By the Covenant members of the League are given a choice of bringing their disputes before an international arbitration tribunal already agreed or to be agreed upon, before the Council of the League or before the Permanent Court of International Justice. But by Art. 36 of the Statute adopted by the League "the jurisdiction of the Court comprises all cases which the parties refer to it, and all matters specially provided for in Treaties and Conventions in force." Further, States may, on signing or ratifying, or subsequently, recognise the jurisdiction as compulsory either unconditionally or on condition of reciprocity. Several minor States have already so recognised the Court.

It will be seen that the Court is empowered to deal with all cases of whatever nature. The distinction between justiciable and non-justiciable disputes is not recognised. choice of referring a dispute to

The

(q) Supra, p. 34. For a convenient summary of the chief arbitrations of

the nineteenth century, see Phillipson, Studies in Int. Law, p. 27.