tion under the constitution, which authority in most nations is the parliament. When this sanction is given, the rules regarding the jurisdiction of the national courts of the contracting nation are thereby supplemented. The highest court in the nation to which the defendant belongs can not then complain that a different tribunal has been arbitrarily placed above it, and the defendant himself can not complain that he has arbitrarily been deprived of the right to be tried by his regular judge. For both things have happened in pursuance of a provision of law which has been regularly enacted and which binds and restricts both courts and individuals. The situation is exactly the same in all other cases in which a certain category of disputes to be decided by the courts is referred once for all to an international court of arbitration by virtue of a general arbitration treaty. In all these cases a conflict between international and municipal law is as much precluded as it is inevitable when the decision of a specific case is referred to a court of arbitration.

A further objection related to the question as to what significance an arbitral award should have with regard to future administrative measures and the future judicature of the two nations concerned. As regards the administrative measures the answer is clear. According to article 37 of the convention for the peaceful settlement of disputes, the nations are obliged to execute the award in good faith. Therefore, if the award determines that the interpretation hitherto given to a treaty stipulation by the administrative authorities is incorrect, the national government shall be obliged to instruct its officials that they must henceforth adhere to the interpretation given by the court of arbitration. The matter is more difficult in the case of courts whose independence is recognized. In this case, if the courts do not voluntarily agree to the verdict of the court of arbitration, the government will either have to embody the interpretation of the latter in its legislation as an authentic one binding even on the courts, or else, if its courts render decisions subsequently which are not in conformity therewith, it will have to see that such decisions are rectified by a new court of arbitration. The latter course will always constitute a means of avoiding a conflict between treaty obligations and the administration of justice. A shorter method of

attaining the object would, assuredly, be that suggested at the Second Conference, viz., the embodiment in the arbitration treaty of a clause assigning to the award the force of an authentic interpretation of the treaty. If such a treaty receives the sanction prescribed by the constitution, it becomes an integral part of the law of the land and is binding even on the courts.

Another objection which occupied the Conference in this connection was that in regard to collective treaties, especially so-called "World treaties." The determination by a court of arbitration of the meaning of one of their stipulations involved in a controversy between two nations might lead to the dissolution of the "Union," created by such treaties, inasmuch as the other parties to such a world treaty might, in their relations with one another, construe such stipulation otherwise than the court of arbitration had construed it in the relations between the two contending parties, and even a subsequent award might construe the same point still differently between nations C and D than it had been construed between nations A and B. However, does it not happen in the internal administration of justice that two courts or even the same court in different judgments decide differently between different parties? This is chiefly owing to the circumstances that the facts are seldom exactly alike even in two apparently identical cases. To be sure, the cause may also lie solely in a difference of legal opinion. In a case where a dispute which has already been decided by a court of arbitration between nations A and B also arises between nations C and D, the first award will certainly have a great moral significance to the second court of arbitration, so that it will only be able to depart from the tenor of the first award in case it regards it as wholly unjustified. In this case, however, the second award may, by the force of its arguments, have the effect of renewing the controversy between nations A and B and of serving to rectify the original erroneous judgment (even international courts of arbitration are not infallible), thereby serving to bring about substantial justice. The committee of the Second Conference made a number of notable suggestions regarding this conflict of decision, but it is impossible to discuss them here.

Finally, the question was raised as to what should be done if the

award obliged one party to amend its laws and the parliament opposed the adoption of such an amendment. In answer to this it was pointed out that such obligation, which admittedly placed the parliament in an embarrassing situation, may also arise in other cases, as, for instance, when a treaty of peace is concluded or as a result of other international agreements which have been concluded without the cooperation of parliament. Austria gave an example of the faithful fulfillment of such a duty in 1902 when she repealed the law imposing an extra sugar tax, because the Brussels Sugar Commission had expressed the view, by a majority of votes at its first session, that this law was in conflict with the spirit of the Brussels Sugar Convention. This Sugar Convention of 1902 furnishes an instance to show that under certain circumstances a court of arbitration is authorized to decide whether or not the municipal legislation of a nation is in accord with the obligations assumed by it in treaties. Of course an attempt to organize a world market, as first made by that treaty with respect to a certain article, requires an international supervision and control, and it is likewise a matter of course that such a supervision can be intrusted with much greater confidence to a really impartial court of arbitration such as the Commission created by said treaty than to a group of interested parties.

It seemed inconsistent with the spirited and energetic opposition of the German delegates to compulsory arbitration for them repeatedly to advocate in the near future the creation of an international court of appeals for the purpose of taking final cognizance of disputes regarding international private law. It seemed likewise inconsistent for Germany as well as Great Britain to take the initiative in favor of establishing an international prize court; for the creation of such a prize court with power to pass upon the lawfulness or unlawfulness of the acts of naval officers in war times would certainly constitute a more radical impairment of the sovereignty of the contracting nations than the institution of an international court of arbitration for the purpose of construing a copyright convention or another convention relating to subjects of international private law.

In deliberations in both the large and small committees and lasting almost four months under the direction of Léon Bourgeois, who

had proven his capacity as a presiding officer at the First Conference, a number of the most prominent jurists of Europe and America examined the objections made. Endeavor was made, in a spirit of conciliation, to break the force of the objections by means of concessions rather than to refute them outright. Among the jurists may be mentioned: Frederic von Martens, the Nestor of conferences on international law; Asser, the most thorough expert in international private law; Sir Edward Fry, the master of the English common law; Fusinato and Hammarskjöld, the Italian and Swedish jurists who are equally prominent both from a theoretical and practical standpoint; the American jurist Choate, prominent both in diplomacy and in the courts; Mr. J. B. Scott, equally able as a professor and as a lawyer; Ruy Barbosa, the sagacious thinker and brilliant orator from Brazil; Drago, who has become celebrated through his acts as Minister of Foreign Affairs of Argentina; and above all, Louis Renault, aided by his skilful assistant Fromageot, won the admiration alike of friend and foe by his superior intelligence, experience, and forcible eloquence. As far as compatible with his instructions, the author of this article also endeavored to support all efforts looking to an agreement. At the last ballot 32 votes were given in favor of and 8 against the English-American-Portuguese proposition, which was ably and eloquently supported by the two Portuguese, Marquis Soveral and Mr. Oliveira, as well as by the Servian Milovanovitch. In this ballot those voting against the proposition were Germany, Austria-Hungary, Belgium, Bulgaria, Greece, Roumania, Switzerland and Turkey, three nations, Japan, Luxemburg, and Montenegro, refraining from voting. After the conciliatory propositions of Austria-Hungary (Merey) and Switzerland (Carlin and Max Huber) had been rejected, the conference agreed on a declaration drafted chiefly by Tornielli, viz.:

The conference has resolved to make the following declaration, in a spirit of conciliation and mutual concession, which is the spirit that has prevailed over the deliberations. This declaration, while preserving to each of the Powers represented the advantage of its vote, enables all to confirm the principles which they regard as being generally recognized. It agrees unanimously (1) in recognizing the principle of compulsory arbitration, and (2) in declaring that certain differences, and especially

those relating to the interpretation and application of international treaty stipulations, may be suitably made subject to compulsory arbitration without any restriction.

In the German White Book, page 39, a rather free translation of the declaration is given. The deviation of the translation from the original is especially significant at the beginning, where it reads each of the Powers reserves the right to maintain its own standpoint, instead of each of the powers reserves the advantage of its rote, as in the original. It is probable that this wording was chosen in order to enable the 32 nations constituting the majority in the vote at The Hague to conclude a special treaty on compulsory arbitration subsequently among themselves outside the conference.3

Although it is true that probably no war would ever have been prevented by adopting the list," there is likewise no doubt that its adoption “in principle" would have been of greater value than the high sounding words of the aforecited declaration. Consequently those who are called "peace lovers" with a certain shrug of the shoulders were not the only ones who regretted its rejection.

HEINRICH LAMMASCH.

* Cf. Bourgeois' speech in the report of Charles Dupuy to the French Senate, 1907, No. 337, page 77, and French Yellow Book, page 116.