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M. Delcassé, who drew up the form which was with slight modifications ultimately adopted, no doubt inserted the clause in the supplementary convention on account of the insufficiency of Article XXXI.1; but all the supplementary convention was intended to do was, as is therein indicated, to make a reference to arbitration obligatory in certain cases.

All the signatories of the Peace Convention have already sanctioned and agreed to the procedure of The Hague Court, and, subject to the redrafting of Article XXXI., it is mere redundance to repeat in a supplementary convention the first step in such procedure. The necessity of laying the precise points in question before the arbitrators, as before judges in our domestic Courts, is too obvious to need to be argued. It is required in every system of judicial procedure, and, in the nature of things, it is the first detail to be settled, after the principle of arbitration itself has been agreed to by the parties. One might go further, and say that this precise determination of the issue belongs to all kinds of procedure. Thus it belongs to what in diplomacy are called the protocols of a question. Foreign offices are constantly reducing matters of difference to writing, and whittling them down to their simplest expression in ways binding on their respective countries, without such protocols being considered as Treaties or Conventions. In short, if the second Article had been omitted from the Anglo-French Treaty, it would have made no change, seeing that diplomatic necessity and usage, in the very nature of things, would have led the Governments before they resorted to arbitration to define the precise issue to be adjudicated upon, and any other details of procedure which have necessarily to be determined in limine litis.

The introduction of the word "Treaty" instead of "Agreement," moreover, would probably have made Parliamentary ratification necessary by practically all States except Great Britain. Why, however, should other nations be compelled, if they do not wish to do so, to submit each individual act of reference for Parliamentary ratification? This shows how unquestionably the subject of Parliamentary ratification is one affecting the domestic relations of each contracting country exclusively.

1 See p. 26, the form in which I have redrafted Article XXXI. in order to incorporate the different alterations which have been shown by experience to be necessary.

II.

The mode of ratification does not belong to the contents of an International Treaty. It is essentially a matter for internal legislation. Article III., in stipulating that the treaty shall be ratified by the President of the United States by and with the advice and consent of the Senate thereof, imports into it an element foreign to the idea of a Sovereign State. A State in its outward relations is represented by its Executive alone. It is undesirable to give foreign States the remotest justification for inquiring into the legitimacy of the Executive entrusted by a nation with its external action.

The difficulty appears to be that the Senate is determined that no reference whatsoever to arbitration shall be made without some kind of sanction by it. The point is not new.

In the original text of the unratified Anglo-American Treaty of Arbitration of 1897, as signed by the Plenipotentiaries, there was no such clause as Article II. The Senate, when the Treaty was submitted for their ratification, added a clause almost identically in the sense of the modification they have made in the new Treaties. The proviso they added was

"And any agreement to submit, together with its formulations, shall in every case, before it becomes final, be communicated by the President of the United States to the Senate with his approval, and be concurred in by twothirds of the Senators present."

It is seen that the United States Senate have not departed from the attitude they assumed in 1897, and the question will be how to meet their requirements without modifying the procedure of The Hague Court under the existing Convention.

The matter belongs purely to the domain of domestic or constitutional law. The American Senate has a position in the American polity quite different from that of any of the Upper Houses in Europe. Its executive functions permit it to exercise a check on the administrative authority in all external matters. Any provisions for the restriction of the Presidentia! powers, however, are beyond the scope of an International Treaty,1

1 I humbly submit that it seems to me, as an outsider, possible to embody the senatoria! objections in the ratifying enactment, both as regards the Presidential powers and the appointment of the American arbitrators.

II

PROPOSED MODIFICATIONS IN THE PROCEDURE OF THE HAGUE COURT

AMONG the subjects which the Russian invitation to the second Hague Conference enumerates, is that of modifications in the procedure of The Hague Court. A number of suggestions have been made in the course of the four cases which have been tried. These are embodied in a special note appended to this chapter. The chief difficulty which has occurred, and which has been common to all four, has been that of the language. Arbitrators and Counsel alike have in general been appointed without reference to their knowledge of the languages involved. It seems desirable to fix the French language once and for all as that of the Court, as proposed by the arbitrators in "the Perpetual Leases" case; and, as suggested by the arbitrators in the Pious Fund case, that Counsel be appointed with a view to their knowledge of the language to be used, whatever it may be. So necessary does the adoption of some such rule seem, that in the Venezuela Indemnities case the arbitrators found it necessary to overrule the provision in the compromis on the subject, in order to make any progress at all.1

1 See pp. 27-28.

Another matter which has occasioned criticism on the Continent is the costliness of the procedure in the cases which have hitherto been tried by The Hague Court. This costliness has been largely due to the lengthening of the procedure owing again to the language difficulty.2

2 In the Pious Fund case five judges were paid five thousand dollars each. To this expense add that for counsel, a staff of clerks, French and English stenographers, and printing the evidence and arguments. "The objection might not be weighty with the great nations, but the expense would press heavily against the smaller States with limited resources. It is a matter which should commend itself to the consideration of the great Powers."(J. W. Foster, Report of Universal Congress of Jurists, 1904, p. 37.)

No special procedure has been discussed, or provided, for matters of minor importance in which reference to more than a

single arbitrator under Article XXXII. is hardly justifiable. The Muscat Dhow's case would probably have been just as satisfactorily dealt with by a single arbitrator, with a procedure confined to printed memoirs as in the Waima and Sergent Malamine case, on which the model protocol among the suggested drafts, appended to the present volume, is based.2

1 Convention, April 3, 1901.

2 See p. 149.

The propriety of a member of the Permanent Court appearing as counsel for any party in a case before it, also has been questioned. In both the Pious Fund and Venezuela Indemnity cases, members appeared as counsel. In the latter instance protests were filed by both Venezuela and Great Britain.1

1 See correspondence on the subject, p. 283.

NOTE ON PROPOSED MODIFICATIONS IN PROCEDURE OF THE HAGUE COURT

On the conclusion of the proceedings at The Hague Court in the Pious Fund and Venezuela Indemnities cases, the Arbitrators drew up recommendations on matters of procedure which had arisen in the course of the trial.

In the Japanese Perpetual Leases and Muscat Dhows cases other points arose.

The different points are set out below under the Articles to which they apply.

(N.B.--The text of the part of the Convention relating to Arbitration is in the smaller type, the suggestions in the larger.)

TITLE IV. OF THE HAGUE PEACE CONVENTION. ON INTERNATIONAL ARBITRATION.2

CHAPTER I.-On the System of Arbitration.

Art. XV.-International arbitration has for its object the settlement of differences between States by judges of their own choice, and on the basis of respect for law.

Art. XVI.-In questions of a legal nature, and especially in the interpretation or application of International Conventions, arbitration is recognised by the Signatory Powers as the most effective, and at the the same time the most equitable, means of settling disputes which diplomacy has failed to settle.

3

Art. XVII.-The Arbitration Convention is concluded for questions already existing 3 or for questions which may arise eventually. It may embrace any dispute, or only disputes of a certain category. Art. XVIII. The Arbitration Convention implies the engagement to submit loyally to the Award.

Art. XIX.-Independently of general or private Treaties expressly stipulating recourse to arbitration as obligatory on the Signatory Powers, these Powers reserve to themselves the right of concluding, either before the ratification of the present Act or later, new Agreements, general or private, with a view to extending obligatory arbitration to all cases which they may consider it possible to submit to it.

CHAPTER II.-On the Permanent Court of Arbitration.

Art. XX.-With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Signatory Powers undertake to organise a permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the Rules of Procedure inserted in the present Convention.

Art. XXI.-The Permanent Court shall be competent for all arbitration cases, unless the parties agree to institute a special Tribunal,

1 See these Recommendations in full, p. 273 et seq.

2 The text of the Convention used is the English official translation published in the British Report.

3 In reference to this Article, M. Beldiman, the Roumanian Plenipotentiary at the Conference, made the following declaration : "The Royal Government of Roumania declares that it cannot adhere to Article XVII. except with the reservation, to be placed in the minutes, that it has decided in no case to accept international arbitration for questions and difficulties anterior to the conclusion of the present Convention.

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