The Hague Conferences and the Future of Arbitration

JUNE, 1906

THE Lake Mohonk Arbitration Conference, which has just closed its Twelfth Annual Meeting, has again brought prominently before the American public the whole subject of international arbitration. It is scarcely possible to estimate the enormous distance covered by the movement, on both its sentimental and its practical sides, since the first conference at Mohonk was held by Mr. Smiley in 1895. At that time barely threescore persons met at Mr. Smiley’s invitation, and their discussions and conclusions were not only largely theoretical, but were marked conspicuously by caution and reserve. The members of the conference wished and meant to do something, they scarcely knew what.

The attitude of the Mohonk Conference at that time was a fair index to the general feeling on the subject, not only among the people at large, but also in the press and in religious, social, and educational circles. Few people then were at all aware what progress practical arbitration had made in a quiet way during the nineteenth century. Even in the State Department at Washington the considerable amount of material for a most interesting historical résumé of the important controversies settled by arbitration had not been put into any systematic form. There seems to have been no collection of instances made by the Department until during the secretaryship of John Sherman, though a compilation of the cases to which the United States had been a party had been made by John Bassett Moore, Assistant Secretary of State under Mr. Blaine, in a paper before the American Historical Association in 1891. Professor Moore was also engaged in the preparation of his great work on the history of International Arbitration, in six volumes, which was published by the government in 1898.

The Mohonk Conference has now grown to more than five times its original membership. It has proportionately developed in conviction and courage, has widely and deeply affected public sentiment throughout the nation, has brought to the support of the great principle which it advocates about a hundred of the leading chambers of commerce and other business organizations, and has effected much at Washington itself in securing the attachment of the national legislators and public officials to the wider and more regular application of the principle of pacific adjustment of international controversies.

In the meantime, the evolution of the movement has been most striking in Western Europe. At the Interparliamentary Union Conference at Brussels in 1895, the year of the organization of the Mohonk Conference, a well-digested plan for a permanent tribunal of arbitration, prepared by a committee appointed the previous year, was presented, and, after thorough discussion, was approved. This plan, which was widely distributed among the governments and public men, was considered to have had much to do with turning the attention of the Czar of Russia to the movement, and inducing him to send an official observer to the meeting of the Interparliamentary Union the next year at Budapest.

The subject was also taken up about this time by the New York State Bar Association, whose committee on arbitration prepared and submitted to the President of the United States a plan for a permanent international tribunal, which proved to be most effective in arousing interest in the subject among leading jurists and statesmen of the country. This plan set forth some of the fundamental principles of an international judicial system which were incorporated in the Hague Convention of the 29th of July, 1899. At this period the American Bar Association threw the weight of its great influence in favor of a permanent tribunal of arbitration. The awakening at that time was so great that in the spring of 1896 the first National Conference on International Arbitration was held at Washington, presided over by ex-Senator George F. Edmunds, and attended by many prominent men from various parts of the country. A preliminary conference had been held previously at Philadelphia to promote the success of the Washington meeting, and special meetings of the friends of arbitration were held about the same time in Boston, New York, and other cities. The first practical effect of this great awakening, which was as marked in Great Britain and France as in this country, was the signing of the Anglo-American Arbitration Treaty, which came within three or four votes of being ratified in the Senate in the spring of 1897. This treaty, whose discussion in the Senate awakened wide public interest, had immense influence both in this country and in Western Europe in advancing the cause to a point where practical results could no longer fail to be realized.

The history of the calling and work of the Hague Conference is too fresh in the memory of the enlightened public to need more than the briefest mention. The Czar’s Rescript, issued on the 24th of August, 1898, though creating almost universal surprise, and a great deal of pessimistic comment, was, with little delay, approved by all the governments to whose representatives at St. Petersburg a copy of this famous document had been handed. The result of the conference, which met at The Hague on the 18th of May, 1899, and sat until the 29th of July, with a hundred delegates representing twentysix powers, was, so far as the purposes of this article are concerned, the drafting of the now famous “ Convention for the Pacific Settlement of International Controversies.” This convention, which was the outcome of the comparative study of no less than six plans, presented to the conference by the delegations from Russia, the United States, Great Britain, France, Italy, and Belgium, was ratified by one power after another, and in April, 1901, the Permanent International Court of Arbitration, as it is technically named, was declared organized and ready for business. The court as at present constituted consists of some seventy-two judges, appointed by twenty-two of the signatory powers (the others never having ratified the treaty), and is under the general care of an administrative council, consisting of the ministers accredited to the Netherlands government, with a permanent bureau, secretaries, etc., at The Hague. The Palace of Peace, for which Mr. Carnegie has contributed one million five hundred thousand dollars, and which is to furnish a permanent home for the court, will soon be erected. The site has been selected, and a competition has been opened by the Dutch government among architects of different countries, in order to secure proper plans for the structure. The court has already had referred to it four controversies: the Pious Fund case, the Venezuela Preferential Payment question, the Japanese House Tax case, and the Muscat controversy between Great Britain and France. These cases have been quickly and inexpensively disposed of, and the judgment of the court has been loyally accepted, with no more criticism than might have been expected.

It is a matter of historic interest to remember that the successful inauguration of the court, which seems to have been more or less studiously ignored at first by the European powers which had coöperated in creating it, was brought about through the initiative of our State Department in suggesting to the government of Mexico the reference to the court of the long-pending Pious Fund controversy. It is hardly fair to assume, as has been done by persons prominent in the arbitration movement on both sides of the water, that the newly created organization would have died from inanition but for this action of the two leading American republics. In time, doubtless, the European governments would have awakened to the enormity of their folly in allowing such a child of their statesmanship and diplomacy to perish outright, and at last would have called the institution into operation. Nevertheless, the action of the United States and Mexico in promptly putting the tribunal to work was one of those all too rare exhibitions of public wisdom, foresight, and courage which redound to the honor of nations infinitely more than those forms of activity with which national honor is unfortunately so often associated.

Any one who has carefully followed the arbitration movement during the decade since 1895, including the work and results of the Hague Conference, to say nothing of the nearly two hundred cases of dispute settled by this means in the previous eighty years, knows that arbitration can no longer fairly be spoken of as an experiment. One still frequently hears the remark, made by otherwise intelligent persons who have given no serious attention to this subject, that a beginning has been made, and that in some future, more or less remote, we may reasonably expect arbitration to prevail largely in the settlement of disputes between nations.

The fact is that arbitration is not any longer an experiment, nor even a series of experiments, as these belated wiseacres would have us believe. It is now the settled practice of the civilized nations when disputes arise between them, and is universally recognized in international law. A government which will not try arbitration before resorting to arms is, in these days, scarcely considered respectable. War, instead of being the general practice of nations, as it was a century ago, when serious disputes arose between them, is no longer resorted to except in rare instances, and in most of these instances the causes run far back into the past, and have created strong prejudices and deeply rooted feelings of distrust and animosity which do not readily yield to rational pacific treatment. During the decade of which we are speaking, there have been four wars: the China-Japan War, the Spanish-American-Philippine War, the Boer War, and the Russo-Japanese War; or nine, if we add to these the Boxer conflict in China, the German War in Southwestern Africa, still going on, the Venezuela Blockade, the Thibet Expedition, and the bloodless Panama Revolution. But during this same period there have been almost a hundred settlements by arbitration. All of these have been important, and some of them of the most difficult and delicate character; as, for example, the boundary dispute between Chile and the Argentine Republic, the British-Venezuelan boundary dispute, the Alaska boundary controversy, and the North Sea incident between Great Britain and Russia, which, though adjusted by a commission of inquiry, was really an arbitration of the first order. Arbitration is now always spoken of and urgently demanded by a vast constituency in connection with every serious international difficulty, as in the case of the Russo-Japanese conflict. The fact that this, with other pacific means, succeeds in the vast majority of instances in preventing hostilities, makes it far within reason to say that the principle has already won its case at the bar of general public opinion, and that the adjustment, or attempted adjustment, of disputes between nations by the cruel and irrational method of war has become very difficult, and, for a number of the most civilized powers, henceforth practically impossible. The weight of this fact cannot be overcome by citing the vast and costly armaments of the great powers, which are bigger and more burdensome than at any previous period. These armaments are bad and ruinous enough, certainly; but they are not war, and the day is not far off when arbitration and the movement of which it is a potent part will begin to make effective inroads upon them, as it has already made upon actual warfare.

The development of the arbitration movement during the past two and a half years along the line of treaties of obligatory arbitration is most interesting and instructive. This phase of the movement was brought about by the feeling that the Hague Convention, though it went as far as was possible at the time, was defective in not providing for the obligatory reference of at least certain classes of cases to the Permanent Court. The first of these treaties of obligatory arbitration, that between France and Great Britain, signed on the 14th of October, 1903, was brought about, or at least its conclusion hastened, by the action of a number of business men in France and Great Britain, led by Dr. (now Sir) Thomas Barclay, and the leaders of the arbitration movement in both the French and the British Parliaments, as a sequel to the war scare produced by the Fashoda incident and the consequent threatened derangement on a colossal scale of the commercial relations between the two countries. This treaty, pledging the submission for five years to the Hague Court of all questions of a judicial order and those arising from the interpretation of treaties, was the first of its kind ever entered into by two firstclass powders. The Argentine-Chile treaty had preceded it by a few months, but the two South American powers were of an inferior rank, and their convention did not stipulate reference to the Hague Court, to the convention establishing which neither of them was a signatory. Since the signing of the Anglo-French treaty no less than forty-two similar treaties have been signed and ratified, or are in process of ratification, many of these having been concluded within the past twelve months. These treaties have created a peace bond between the group of powers which are parties to them, the importance and strength of which it is nearly impossible to overestimate. Great Britain is a party to ten of them, France to seven, Germany to one, Italy to six, Spain to five, Austria-Hungary to three, Russia to three, the Netherlands to four, Norway to eight, Sweden to eight, Switzerland to seven, Portugal to six, Denmark to seven, Belgium to seven, Roumania to one, Greece to one, Colombia to one, and Peru, Brazil, Chile, and the Argentine Republic to two each. This list does not include the eleven treaties signed by the late Secretary of State Hay, which, though supported by the insistent and nearly unanimous public opinion of the nation, failed to go into effect because of the disagreement between the President and the Senate. These treaties were with France, Germany, Switzerland, Portugal, Great Britain, Italy, Sweden and Norway, Japan, Spain, Mexico, and Austria-Hungary.

It is worthy of note that, among the treaties which have gone or are going into effect, that between Denmark and the Netherlands is without limitations. It pledges henceforth the reference of all disputes between the two governments to the Hague Court. The government of Denmark, since signing this first unlimited convention, has made a strong effort to have its other arbitration treaties drawn along the same lines, but has thus far succeeded with Italy only. These two conventions constitute the highwater mark of the arbitration movement, though possibly the recent treaty between Sweden and Norway, concluded since their separation, deserves to be linked with them. This convention is to run for ten years, and, though it reserves questions affecting the independence, the vital interests, and the honor of the nations, it is unique in the fact that it provides that, if any question shall arise which either government may hold to be of this character, the question shall be referred for determination to the Hague Court. This action of the two Scandinavian countries, whose peaceful separation constitutes one of the most remarkable events in modern history, represents a distinct and significant advance toward the ultimate goal of the universal arbitration of all disputes. None of the great powers have yet seemed willing to pledge themselves to refer questions affecting their vital interests or their honor to arbitration, though it is difficult to see on what ground they have made these exceptions. Any serious difference whatever between two governments is certainly intimately related with their vital interests and honor, and it is not possible to conceive of any disputes more nearly affecting nations in this respect than many of the important controversies which have been settled by pacific methods during the past half-century. If this be true, the action of Sweden and Norway will in time be followed by all the governments, of the first as well as of the second rank, and the Permanent International Court will be held to be, if not the only, at least the supreme and final means for determining where international right, justice, and honor lie in every sort of controversy.

Any guess as to the immediate future of international arbitration might justly be considered a random shot into the air, were it not for this remarkable array of its successes and triumphs in the recent past. If it be true, as is generally believed, that reforms never go backward, it is altogether reasonable to assume, in these days of marvelous swiftness in all social movements, that the next twenty years will witness the practical completion of the arbitration movement. The movement has already passed through two stages of its progress, that of theoretical justification and that of practical ad hoc application of the principle to the adjustment of controversies as they arise. It is now in its third and final stage,—that of organization into a permanent and complete system which shall bring within its scope the whole range of international differences and conflicts. The perfecting of this system, whether it comes sooner or later, will inevitably see the end of war as a general institution recognized under international law, just as the perfecting of municipal law in the national courts of justice has brought about, except in the rarest cases, the end of dueling and private fighting.

What is proposed in the way of further development of the arbitration system at the approaching Hague Conference is the logical sequence of what has already been accomplished, and not merely the demand of a sentimental and philanthropic interest in the progress of the cause of universal peace. This philanthropic interest is in the highest degree praiseworthy, and should never be ridiculed or depreciated. But at the present time the movement of which we are speaking has its feet planted squarely, not on sentiment and theory only, but on the solid ground of diplomatic accomplishments and the oftproved reasonableness and practicability of referring international controversies to the forum of reason and common sense instead of allowing them to take their chances in the arena of blind and senseless brute force. The coming conference will not undo the work done at The Hague in 1899. Possibly it will not greatly modify it, except as the foundation is modified by the superstructure built upon it. So far as its arbitration work is concerned, it is expected that the main result of the conference will be the extension, in some manner, of the convention under which the Permanent Court was set up, to all the independent nations of the world. All the Central and South American states have already expressed their intention of sending representatives to the second Hague Conference. The twenty-six powers which took part in the first conference will, therefore, be increased to not less than forty-five or forty-six at the coming meeting. If nothing more shall be accomplished than the admission of all the LatinAmerican republics as parties to the Hague Court, the conference will be worth many times all that it may cost in time and money.

But the friends of arbitration, in both their private and their organized capacity, in the peace congresses, the arbitration conferences, the interparliamentary meetings, etc., are urging the conclusion by the new conference of a general treaty of obligatory arbitration to be signed by the governments, not two and two, but in their collective capacity, as was the case with the great pacific convention of 1899. This new convention, in order to avoid such constitutional difficulties as that raised at Washington in connection with the treaties signed by Mr. Hay, will probably carefully specify a considerable number of classes of controversies which all of the nations represented will be ready to agree in advance to have go automatically to the Hague Court. The American republics have already set the example for this type of agreement in the convention drawn at Mexico City in 1901-02, stipulating that all questions of claims between them shall be referred to the Hague Court. The eminent men who will be sent to The Hague will, without doubt, be able to select from among the classes of questions constantly arising between the nations, in their present complex relations, a considerable number that none of the governments will find any excuse for not accepting as always suitable subjects for arbitration. There is no doubt that a strong plea will be made before the conference by such governments as those of Denmark, the Netherlands, Belgium, the Scandinavian states, Switzerland, and Italy, for a treaty that will include every sort of difference between the civilized states. It would be difficult to give any valid reason why such a proposal, if made, should be rejected. No sort of controversy is now possible between the civilized nations which cannot easily be settled by pacific methods, provided the governments are ready honestly to recognize one another’s independence and right of self-direction. The rejection, therefore, by any of them of a scheme for the universal arbitration of disputes of every sort will be equivalent to convicting them of holding in reserve certain aggressive purposes toward territories of other states. Of course, if any of the powers which may be represented at the conference have such ulterior purposes, they will not join in a convention of universal obligatory arbitration. But no other conceivable reason can be given why any of them should hold aloof, at this advanced stage of civilization, from such a convention, if drawn and signed by all the important powers of the world acting together.

Much of the other work which is laid out for the coming Hague Conference is intimately related to the subject of arbitration, and, if successfully accomplished, will contribute materially to its further advancement. The extension of the rights of neutrals, the making of private property at sea free from capture in time of war, the restriction of the bombardment of ports and coast cities, and other measures which will probably be adopted, will all tend to the restriction and prevention of war, and will thus strengthen the practice of arbitration. But the greatest service which the governments can do along this line will be the preparation of a treaty providing for a permanent periodic congress of the nations. The demand for the inauguration of a world organization of some sort has within a few years become very strong. The subject has been taken up by the Interparliamentary Union, as well as by all the other leading peace agencies, and the conference will, in all probability, be compelled by the force of public opinion to make it the leading topic of its action, as the conference of 1899 was obliged in the same way to give its foremost attention to that of a permanent international tribunal. A periodic congress of the nations, even if at first it had no legislative functions, but only the power of recommendation, would be of the very greatest value to civilization, not only directly, in its discussion of questions of common interest to the nations, but also in facilitating the work of the Permanent Court by the development and better statement of international law which would inevitably result from its periodic deliberations and conclusions. The Hague Court would have in such a body its normal counterpart and complement, and the new conference, the initial steps in the calling of which were taken by President Roosevelt, who included this topic among the subjects to be placed upon the programme, will hardly fully justify its existence, unless it provides for its own periodic meeting hereafter, or for a regular world congress in some other form.

It is of all things to be hoped that the new conference at The Hague, of which the entire civilized world is expecting so much, will not be allowed to degenerate in any manner into a sort of war congress for the mere regulation of campaigns and battles, of the kinds of bullets and explosives which armies and navies may use in the killing of men, and other similar details of the barbarous art of fighting. The war between Russia and Japan has created some real danger in this direction, as appears from the emphasis which has just been laid by the Russian government upon certain phases of the laws of war outlined in the programme of topics suggested for consideration by the conference. No greater misfortune could possibly happen in the sphere of international relations than such a perversion of the Inter-Governmental Peace Conference from the high purposes and aims for the promotion of which it came into existence.