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of these in recent years have been satisfactorily disposed of by direct agreement between the nations concerned, but it has not always been possible for the parties to come to a direct and satisfactory understanding. Statesmen having the welfare of humanity at heart have therefore sought to evolve a system through which such controversies could be settled without resort to force with very gratifying results in some instances and sore disappointment in others.
SETTLEMENT OF INTERNATIONAL DISPUTES BY
ARBITRATION AND MEDIATION
In the absence of a superior having authority over both parties to the controversy and backed by ample power to enforce obedience by them to his decisions, arbitration and mediation offer alternatives that are better than war. They are, however, in all respects primitive and rudimentary. They afford no protection whatever against determined aggression. Neither party can compel his adversary to arbitrate. Before anything further is done the parties must agree to arbitrate, agree on the question to be submitted to arbitration, and agree on the manner in which the tribunal shall be selected.
These difficulties can be overcome, and in fact interpose no serious obstacle, if the difference is merely one honestly entertained either as to a matter of law or of fact and both parties sincerely desire an amicable adjustment of it. The responsible head of the government of any civilized state ought to consent to arbitrate any question rather than plunge his country into war, but recent history proves that nations that have made long preparation for a conflict and regard the time ripe for their warlike enterprises, ignore all moral and contractual agreements to arbitrate, especially when there is no moral or legal basis for their demands. But where the nations are truly friendly the submission of their differences to mutual friends as arbitrators is natural, easy and effectual. In the settlement of private controversies arbitration is sometimes preferable to submission to the ordinary courts of justice. Where the matter in controversy relates to some technical matter, or the customs prevailing in a particular trade or business, the parties can usually select an arbitrator who is more competent to decide than a judge who deals with all kinds of controversies. Arbitration is often a much more speedy method of determining
a question than a trial in a court which has its formal requirements allowing time for each step in the progress of the case. In commercial matters quick decision is often of vital interest to both parties, especially when the disposition of perishable property is involved. Commercial bodies sometimes give the needed sanction to the decisions of arbitrators chosen in accordance with their by-laws by suspension or denial of the privileges of their organization to members who refuse to arbitrate, or who fail to comply with the awards of the arbitrators. Arbitration also has the very great advantage of saving to the parties the costs and expenses of litigation in the courts.
Nevertheless arbitration cannot be made to supply the place of courts vested with full power to administer the law and enforce obedience to it. The best method of settling a question arising between two parties is for them to agree on a disposition of it. Most questions arising between nations are so settled now. When they are unable to agree or compromise their differences, friendly mediation by which both are given the benefit of the impartial advice of a mutual friend, is often a very effectual and satisfactory method of adjusting a controversy. The mediator is often able to make a party see the merits of the other party's claim by presenting it in a different manner and freed from all feeling of interest or advantage. (Mediation, however, to be serviceable must be really inspired by friendship for both parties and felt by them to be so. In dealings between nations one who undertakes to act as mediator is liable to be suspected of selfish and ulterior motives. The most effectual mediation is by the powerful nations in the affairs of the weaker ones. The results of such mediation will be good or bad according to the real purposes of the mediator.
In the administration of the law between private parties mediation has no recognized place, but the settlement of disputes and misunderstandings of all kinds through friendly counsel is, and always has been, of very common occurrence. Persons occupying special relations of friendship, confidence, or business connection, are often able to bring about very happy solutions of differences and disputes. On the other hand mischievous intermeddling with the affairs of others is
productive of much strife and bitterness. This kind of interference is not really mediation, for its purpose usually is to accomplish some other end than the settlement of a controversy already existing.
Mediation, however, now has a place in international law. Sovereigns, especially autocrats, were formerly very sensitive about any intermedling with their affairs by third parties, and offers of mediation were usually resented. The Pope has sometimes been able to aid Catholic states in the settement of their differences by reason of his position as the spiritual head of the Church; and there are many instances of successful mediation by others, but the right of a nation to offer its friendly offices to prevent a conflict was not established. The Treaty of Paris of 1856 settled the terms of peace of the Crimean war, in which France and Great Britain had forcibly intervened to save Turkey and preserve the balance of power. The 23rd Protocol of this is as follows: "Whereupon the Plenipotentiaries (i.e., of Austria, France, Great Britain, Prussia, Russia, Sardinia, Turkey) do not hesitate to express, in the name of their Government, the wish that States between which any serious misunderstanding may arise should, before appealing to arms, have recourse, as far as circumstances might allow, to the good offices of a friendly Power. The Plenipotentiaries hope that the Governments not represented at the Congress will unite in the sentiment which has inspired the wish recorded in the present Protocol.” This was not a binding agreement between the powers represented who joined in it, but it was a suggestion of the usefulness of mediation, made to encourage resort to it. The Hague convention for the settlement of international disputes gives mediation a definite place and character in the dealings of nations with each other. Title II deals with the subject of good offices and mediation and commits all the powers to its use and encouragement. It gives powers which are strangers to the dispute the right to offer their good offices or mediation, before or during hostilities, and provides that such an offer can never be regarded as an unfriendly act.
There are ample 1 Halleck's Int. Law, I, 499.
reasons for giving greater encouragement to mediation in the disputes between nations than to it in disputes between private persons. Disputes between nations may lead to war if they are not settled. No such result is to be apprehended from unsettled disputes between private persons.
If these cannot agree there are courts vested with ample power to determine and enforce their rights, no matter how important to them the matter in controversy may be, or how bitter their feelings in regard to it. But in the case of a dispute between nations there is no court to resort to. The nations as to each other are in a state of anarchy, mitigated only by the principles generally accepted as international law, the treaties made between them, and the voluntary submission by each of them to these principles and the voluntary performance of their agreements. The general public is interested in the settlement of all private disputes and the administration of justice between all its members. It therefore has provided its system of courts, vested with power to determine all questions of private right and punish crimes. But the community of nations has no such agency, and must therefore seek other means of preventing conflicts. But few of the people in a large community know of, or are affected by, the misunderstandings of particular members of it. War, however, affects the whole community of nations. It at once divides the whole world into combatants and non-combatants. Belligerents are recognized as having the right to fight on sea or land and to require neutral nations to keep out of the way of their military and naval operations. They may also interrupt each other's commerce with neutral nations. This often imposes very great hardship on the neutrals. For these reasons, as well as from humane impulses, it is eminently proper that the nations should be allowed and encouraged to exercise their good offices to preserve the peace.
Another expedient offered under Title III of this Convention is an International Commission of Inquiry. This is to be constituted by a special agreement of the parties in cases where the difference between the parties is as to some question of fact, and involves no matter of honor or vital interest.