The Transformation of Diplomacy
How to Save the State Department
THE year 1928 deserves to be remembered in the history of international law by reason of the efforts made during that period by all the civilized nations of the world in favor of arbitration. In February and March the Sixth International Conference of American States met in the capital of Cuba, and, amongst many other important agreements, one was reached, after lengthy and most interesting discussion, concerning international arbitration. By virtue of that agreement, plenipotentiaries of the independent governments of this part of the world will be assembling at Washington about the time this appears in print, with specific instructions to draw up a treaty establishing and regulating arbitration. Meanwhile at Geneva a special committee appointed by the League of Nations has also been studying this subject, and in three successive meetings it has prepared various plans which will shortly be submitted for the consideration of the League. America and Europe are vying with each other for the successful solution of a problem which may perhaps be uniformly solved by a World Treaty.
Arbitration is a very ancient institution in the history of the world and it has suffered many vicissitudes. The Greeks practiced it among themselves; Rome suppressed it as the inevitable sequel to her universal dominion; the Middle Ages witnessed its revival, although it was perhaps in most cases a proof of the superior power of the Popes; the modern state on the continent of Europe again eliminated it during the first centuries in recognition of the right of the stronger and of the ideal of universal monarchy. Philosophers and idealists, however, cherished the memory of it and dreamed of re-establishing it; jurists headed by Grotius urged it with confident hope; popular sentiment grew increasingly in its favor, and at the end of the nineteenth century, as now in the twentieth, caused it to make considerable strides forward, sometimes timidly, sometimes boldly, bringing it finally into the forefront of those problems which are most properly the concern of world opinion.
The American continent must be accorded honorable mention for the highly important and creditable part it has played in reaching this triumphant stage in the development of the ways and means of peace. During the second term of the first Congress of the United States, after the signing of the Constitution, on February 9, 1790, President Washington displayed his farsighted genius by recommending to the Senate that all questions between the United States and other nations should be promptly and amicably settled. At the moment there was a serious problem, that of the Canadian frontier, which was causing friction between the United States and Great Britain. The Senate in accordance with the suggestion of the State Department agreed on March 12, 1790, that a commission representing both countries should arbitrate the frontier question. Thus was reached the Treaty of November 19, 1794, between Great Britain and the United States -- a great example to the world and a great victory for arbitration.
The nineteenth century opened in South America under equally favorable auspices. Argentina and Brazil, with a view to the peace the centenary of which they have recently been celebrating, had recourse to arbitration in their Treaty of 1828. The following year, in the second paragraph of Article 19 of a treaty signed at Guayaquil, Colombia and Peru for the first time in the history of the world stipulated that general arbitration should be compulsory on all questions that might arise between them. The document closes with a statement in which Peru designates the republic of Chile as arbiter.
It would require a whole volume to mention all the cases which prove my statement as to the priority and enthusiasm of the New World in matters relating to arbitration. Limiting ourselves to a few brief references, it will suffice to recall that the Alabama case between the United States and England, submitted to arbitration by the Treaty of May 8, 1871, and settled at Geneva on September 14, 1872, is mentioned and applauded by all in favor of such treaties as the most solid basis of the contemporary world movement on behalf of such settlements. We have progressed so far in this part of the world that the republic of Brazil did not hesitate to introduce into its federal constitution of February 24, 1891, a clause which provides that the national Congress can authorize the government to declare war only "when arbitration has failed or cannot be effected" -- thus making it a principle of public law.
Consequently, it is not surprising that when this question was discussed at the second Hague Peace Conference, in 1907, Brazil and San Domingo advocated compulsory arbitration under all circumstances and without reservations, and that when the matter came to a vote in Committee, although compulsory arbitration obtained only ten favorable votes, with eight unfavorable and three abstentions, all of America there represented, North and South, decided unanimously and enthusiastically in its favor.
The attitude of the New World was made evident at the first Pan-American Conference held at Washington in 1899. There a compulsory treaty of arbitration was approved of for all cases, whatever their nature, object or origin, without any limitation other than that contained in Article 4, as follows:
The only question excepted from the provisions of the previous article are those which, in the opinion of any party to the controversy, would seem to threaten its independence. In that case arbitration shall be optional for such nation but it shall be compulsory for the opposing nation.
At the second Pan-American Conference, held in Mexico in 1901, the question came up again and a great many of the participating republics -- Argentina, Bolivia, San Domingo, Guatemala, Salvador, Mexico, Paraguay, Peru and Uruguay -- signed another treaty whose first article read:
The high contracting parties agree to submit to arbitration all controversies which exist or may exist between them and are not suspectible of solution by diplomatic means, provided always that in the opinion of any of the nations concerned these controversies do not affect its independence or national honor.
In pursuit of this task, and without prejudice to the fact that all the nations of America are bound by treaty amongst themselves and with other Powers by means of many arbitration agreements of various kinds, the sixth Pan-American Conference at Havana unanimously reached the following agreement on February 18, 1928:
The Sixth International Conference of American States resolves:
Whereas: The American Republics desire to express that they condemn war as an instrument of national policy in their mutual relations; and
Whereas: The American Republics have the most fervent desire to contribute in every possible manner to the development of international means for the pacific settlement of conflicts between States;
1. That the American Republics adopt obligatory arbitration as the means which they will employ for the pacific solution of their international differences of a juridical character.
2. That the American Republics will meet in Washington within the period of one year in a conference of conciliation and arbitration to give conventional form to the realization of this principle, with the minimum exceptions which they may consider indispensable to safeguard the independence and sovereignty of the States, as well as matters of a domestic concern, and to the exclusion also of matters involving the interest or referring to the action of a State not a party to the convention.
3. That the Governments of the American Republics will send for this end plenipotentiary jurisconsults with instructions regarding the maximum and the minimum which they would accept in the extension of obligatory arbitral jurisdiction.
4. That the convention or conventions of conciliation and arbitration which may be concluded should leave open a protocol for progressive arbitration which would permit the development of this beneficent institution up to its maximum.
5. That the convention which may be agreed upon, after signature, should be submitted immediately to the respective Governments for their ratification in the shortest possible time.
The governments participating in the arbitration conference at Washington have doubtless been preparing instructions for their plenipotentiaries, adapting them to contemporary facts and bringing them in line with the proposals set forth in the above resolution. It is to be hoped that they have borne in mind the concept and the possible applications of arbitration, as well as the different phases of its evolution. International order, which is as necessary to humanity as domestic order, is distinguished from the latter by the fact that it has no adequate organs of government. It has no legislators, no executives and no judges. Each single component part creates, interprets and applies the law which seems best fitted to regulate its relations with others, and its conduct is sometimes prompted by justice, but also by interest, ambition, or force.
Lacking a common superior, the nations, when unable or unwilling to go to war, or when the issue did not seem to be worth such a price, have agreed that a third party, either another State or some individual arbiter, should pronounce the final word and decide who was right. Historically this is the first and most frequent form of arbitration: a dispute arising between two parties, prolonged for a longer or shorter period, and finally submitted by common consent to the decision of a third person. Arbitration as a fact preceded arbitration as an institution, and, before an agreement made it permanent, there came the application of the principle to specific questions under discussion.
Later on, when international relations became more complicated and special treaties were drawn up relating to certain administrative or commercial matters in which there was no serious political element that might interfere with a fair decision by third parties, there was introduced into these treaties, in view of possible difficulties, a compromise clause, that is, an agreement in advance of any difficulty that a third party should settle it if the interested parties could not agree directly. As examples I may mention the Universal Postal Union, and, since the end of the last century, many commercial treaties.
This was an important step forward because compulsory arbitration was provided for future questions that might arise and ceased in this respect to be optional, while it was further a recognition that at least a certain part of a nation's external activities might freely be submitted to judicial decision. Despite all deficiencies in execution, some of which are very obvious, there was one great advantage: Public opinion in every country became accustomed to see the State not as the supreme form of international sovereign will, but as a member of a larger group from which justice and security could be expected.
We have now reached the third step in the historical evolution which I am trying to sketch. From the Arbitration Clause in treaties relating to special matters, special treaties of arbitration had rapidly been reached: they related to all matters which were not expressly or implicitly excepted. In this category belong what might be called the bilateral treaties of Mr. Root and of others in Europe and America. To make such instruments multi-lateral was one of the objects of the two Peace Conferences at the Hague and the International Conferences of American States, in harmony with the unofficial efforts of a great many national and international associations.
Much had been gained, but there remained at least four threats to the peace of the world which it was necessary to avoid. The first was found in the exceptions to the principle of arbitration, which were either so extensive as to reduce considerably the scope of the general principle, or so vague and arbitrary that the principle might be defeated by the contracting parties. The second consisted in leaving to the interested parties the decision as to when it was a matter of rule and when of exceptions, instead of also making this question the subject of an arbiter's decision. The third and most serious menace to universal peace consisted in not knowing what must be the next step when exceptional cases arose, thereby leaving the way open to war. The fourth factor was the absence of constituted arbiters ready to function like the judiciary, which meant that on each successive occasion the nations had to reach a fresh compromise in appointing them. Let us see how the march of events has been supplying an adequate solution for each of these four great difficulties.
The first exceptions in the treaties of general arbitration were necessarily very broad and very vague. The nations not only had their collective and individual fears, but also the natural desire not to compromise their political interests and to preserve the absolute exercise of their sovereignty. At the meetings at the Hague in 1899 and 1907 only questions of a legal character were regarded as susceptible of optional arbitration, particularly those concerned with the interpretation and application of international agreements, and in 1907 arbitration was accepted as in a certain sense obligatory in matters relating to the recovery of contractual debts. However, when the scheme for general compulsory arbitration for legal questions was presented, the committee accepted it only on condition that it did not affect the vital interests, the independence and honor of the countries concerned, nor the interests of third parties. The practical effect of this formula regarding honor, independence and vital interests, was to make compulsory arbitration optional, regardless of the nature of the case; but it soon became very popular to include it in all treaties signed during the first part of the present century.
At the conclusion of the World War, when the pact of the League of Nations was inserted in the Treaty of Versailles, Article 13 was worded as follows:
The members of the League agree that whenever any dispute shall arise between them which they recognize to be suitable for submission to arbitration and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration.
At such a time, in a treaty between the victorious and the defeated perhaps nothing more could have been asked; but the principle of arbitration was left entirely to the interest, the good will or the good faith of the nations concerned. The agreement establishes an alternative for problems that cannot be arbitrated -- inquiry by the Council -- but this in turn (Article 15) is subject to the possibility that "if the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement."
Nevertheless, this formula has not prevented certain recent arbitration treaties from continuing to mention the same exceptions, drawn from the habitual practice of the above mentioned commission of the second Hague Conference. Examples are the treaty between Switzerland and Japan of December 26, 1924; that between the United States and Sweden of June 24, 1924; and that between the United States and Liberia of February 10, 1926.
Different reservations have been discussed and introduced into recent arbitration agreements. For example, that which excludes questions relating to constitutional procedure mentioned in the treaties between Argentina and Venezuela of July 22, 1911, the ratification of which was postponed until August 24, 1924; between Italy and Honduras of December 8, 1913; Argentina and France of July 3, 1914; China and Holland of June 1, 1915; France and Uruguay of April 18, 1918; Great Britain and Uruguay of the same date; Germany and Switzerland of December 3, 1921; Hungary and Switzerland of June 18, 1924; Italy and Switzerland of September 20, 1924; Poland and Sweden of November 3, 1925; and Spain with Switzerland and Denmark of April 20, 1926, and March 14, 1928 respectively.
Certain treaties, as those signed by Germany and Switzerland on December 3, 1921, and Czechoslovakia and Poland on April 2, 1925, excluded from arbitration disputes affecting territorial integrity, except in cases of frontier problems. Other agreements, such as Article 1 of the Treaty between Poland and Switzerland of March 7, 1925, by means of a formula which may perhaps contain a solution of this great difficulty for tribunals and states in the future, omit from their stipulations questions which are left by international law to the exclusive decision of each nation.
A very recent conciliation and arbitration agreement, made between the United States and France on February 6, 1928, in addition to excepting disputes relating to domestic jurisdiction and to the interests of third parties, also excludes any dispute the subject matter of which depends upon or involves the maintenance of the traditional attitude of the United States concerning American questions, commonly described as the Monroe Doctrine, or involves the observance of the obligations of France in accordance with the Covenant of the League of Nations.
In order to avoid certain inconveniences another formula has recently been devised which, instead of laying down a general rule and then noting one or more exceptions, states exactly the scope and object of the institution of arbitration. The happiest formula is that which proposes arbitration for all cases in which a right is reciprocally discussed, or in which that right is invoked. In this connection may be mentioned Article 2 in the Treaty between Poland and Sweden of November 3, 1925; Article 1 in the Treaty between Germany and Poland of December 13, 1927; and those of February 5 and March 3, 1927, made respectively with Switzerland and Denmark by Belgium. Also in the same sense must be mentioned Article 36 of the Statutes of the Permanent Tribunal of the World Court. Twenty-nine nations have adhered to these Statutes, amongst them Germany and France in Europe, and Brazil, Costa Rica, San Domingo, Guatemala, Haiti, Panama and Uruguay in America.
The great danger of the exceptions above mentioned consists in determining who is to interpret them. In the beginning, as we have seen, resistance to international justice and an exaggerated sense of domestic sovereignty succeeded in converting every state into its own judge as to what arbitration stipulations should be fulfilled, which in most cases meant that they were useless as an instrument of peace and universal justice. In the end there was a reaction against this, and many of the international treaties recently quoted contain in more or less the same terms the formula appearing in the last paragraph of Article 2 of the Treaty between Guatemala and Italy of April 20, 1915:
The question of determining whether a dispute does or does not constitute a difference expressly provided for in Articles 1, 2 and 3 shall also be submitted to arbitration.
This is equivalent to saying that the arbiters are the final judges of what comes within their jurisdiction.
However, opponents of war who looked to arbitration for a panacea for all its evils and dangers could not rest satisfied. A means existed for deciding impartially what disputes were susceptible of arbitration. But there remained all those disputes, frequently very grave, in which recourse could not be had to justice. In view of the uncertainty and the danger of mediation, conciliation commissions were formed in conjunction with the developments arising out of the first and second Hague Conferences. The famous Bryan Treaties gave a great impulse to this movement. Arbitration for legal cases, combined with conciliation for others, now appears in a great many treaties -- amongst others, that between Germany and Switzerland of December 3, 1921; Hungary and Switzerland of June 18, 1924; Italy and Switzerland of September 20, 1924; Poland and Czechoslovakia of April 23, 1925; Denmark and France of July 15, 1926; and Denmark and Spain of March 14, 1928.
The Commission of Arbitration and Security of the League of Nations, which met in Geneva this past summer, is trying to take a further step in the direction of a common agreement that differences submitted to conciliation shall be declared necessarily susceptible of arbitration as soon as it has been proved that the conciliatory formulæ have broken down. In this manner nothing in international life would be outside the scope of peaceful settlement, and the generous and laudable declaration of the Kellogg Treaty signed in Paris on August 27 last would become a practical reality. These are its terms, to which all nations have been invited to adhere and which contain no reservations:
Article 2. The high contracting parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.
Another and probably the supreme difficulty still exists for certain states. Conciliation and arbitration are agreed upon; but it still will be necessary to appoint commissions and arbiters when disagreements arise -- that is to say, just at the time when people's minds are least disposed to agree about anything.
It used to be customary for arbitration agreements to designate as judge the head of a friendly state or some other higher functionary. But very soon the idea of a permanent tribunal recommended itself and was supported by the nations of Europe and America at the second Hague Conference. It crystallized after the Versailles Treaty in a procedure for the election of judges which is as ingenious as it is practical.
Some sort of tribunal, constituted in advance, and to which application can be made by one nation against another, is an absolute necessity. For seven years the Permanent Court of International Justice at the Hague has been functioning with increasing success and on an increasing scale. The reservations proposed by the Senate of the United States do not refer to its necessity, or its convenience, or its judicial functions, but to other matters of organization and scope; as to these, with a little good will on all sides, an agreement will sooner or later be reached.
So far as conciliation is concerned, all the treaties establishing it provide for a permanent commission, which is definitely agreed upon and which may function motu proprio, anticipating the appeal of the disputants. When these bilateral agreements are drawn up for a continental or universal treaty, the commission will be of the same character, although it will be necessary in such cases to use common sense and justice in smoothing out certain practical difficulties. There is no reason why several nations -- or all nations -- should be unable to do collectively what two of them can do.
The last trench of the enemies of arbitration is the contention that it involves the codification of international law, legally speaking, and disarmament, practically speaking. That is an error. It is quite true that we have as yet no written code of international law, but it is none the less true that Europe and America are steadily codifying it, by the work of the League of Nations and by the Pan-American Conferences. And it is further true that universal custom, the principles generally admitted, and the decisions of international tribunals, are daily clarifying the code and helping to establish it. The law and the tribunal are inseparable, and the acceptance of one of these involves the clarifying and defining of the other.
As for disarmament, it is bound to come, seeing that force wastes and destroys itself in two contrary ways, by use and disuse. When humanity is convinced that it has practical and effective guarantees against all aggression, and that it can defend itself against any injustice from the strong or the thoughtless, from the imprudent or the mistaken, by appealing as do private individuals to an impartial authority, disarmament will come of itself, as the necessary sequel to a public opinion that is peaceful and quiet. There will only remain a domestic police force and perhaps an international force for the rarer cases in which judicial decisions are not voluntarily obeyed.
As I have said, the whole of America is about to meet in Washington to study this problem. Much may be done there for our own advantage and also as a stimulus to the right development of civilization. The responsibility of the delegates and of their governments is enormous; it can only be measured by the glory with which the Conference will cover itself if it reaches agreements which the world applauds and accepts.