"Let us then seek to develop out of it a Permanent Court which shall hold regular and continuous sessions, which shall consist of the same judges, which shall pay due heed to its own decisions, which shall speak with the authority of the united voice of the nations, and gradually build up a system of international law, definite and precise, which shall command the approval and regulate the conduct of the nations. By such a step in advance we shall justify the confidence which has been placed in us, and shall make the work of this second Conference worthy of comparison with that of the Conference of 1899.” 1 Mr. Knox, Secretary of State in the United States Government, in 1910 sent a diplomatic note to the Powers suggesting that the International Prize Court, proposed to be established by the second Hague Conference, should be transformed into the proposed Court of Arbitral Justice, that is to say, that the scheme of the latter should be merged in the former. This subject will probably involve a reconsideration of the existing system as a whole. In Problems 2 will be found a draft form of submission to arbitration of cases of minor interest, which meets one of the difficulties, viz., that of the expensiveness of the present mode of operation. 1 La Dieuxième Conférence Internationale de la Paix, vol. ii. (First Commission, First Sub-Commission, 9th Session), August 1, 1907. The Court, outlined by the project, is meant to realise the views of the framers of 1899; it is a Court in essence and in fact, composed of actual and prospective judges, and it is permanent because in existence and in session. 2 See Problems, p. 149. Compare as to cost of present procedure, ibid. p. 21. IX. ON A GENERAL TREATY THE Hague Conference of 1907 expressed itself unanimously It follows from this statement that the Conference was unanimously agreed that other matters besides the interpretation and application of treaty stipulations are fit matters to be included in a general compulsory treaty of arbitration. The Conference, moreover, unanimously agreed to recognise the principle of such a general treaty. Thus, the third Conference will have inherited two fundamental principles from the second Conference on which to work. The Institute of International Law has taken up this subject also, and the present writer, as convener of the committee dealing with it, has submitted several statements on the subject which are at present under consideration preparatory to being submitted at a plenary meeting of the Institute. Following out the above principles, the present writer has drawn up two model treaties, one of which has already appeared in Problems, and the other of which (translation) is as follows: The H.C.P., etc. Whereas in the Final Act of the Peace Conference of 1907, the said Conference unanimously recognised the principle of compulsory arbitration, and declared that "certain differences, and, in particular, those relating to the interpretation and application of international treaty stipulations, are susceptible of being submitted to obligatory arbitration without any restriction whatsoever." And whereas in Article XXXVIII. of the Convention of October 18, 1907, for the pacific settlement of international disputes, this unanimous resolution is reiterated in the following form, viz., that "In questions of a legal nature and, in the first place, in questions relating to the interpretation or application of international Conventions, arbitration is recognised by the Contracting Powers to be the most efficacious and at the same time the most equitable means of settling disputes which have not been settled through diplomatic channels" And that "It is therefore desirable that in disputes relating to the aforesaid questions, the Contracting Powers should, on the occasion arising, have recourse to arbitration so far as circumstances permit." Declaring once more that such is their feeling and actuated by the desire to give greater practical effect to the above-stated principle, OF ARBI 1 Final Act. See pp. 79 et seq. 2 See p. 145 of that volume. Have, by mutual agreement, drawn up the following Convention : 1. The High Contracting Parties undertake to submit to the arbitration of The Hague Court, disputes (a) Arising out of the interpretation of clauses contained in all the agreements at present existing between them; (6) Arising out of the application of the said agreements either by reason of failure to carry out or of the imperfect carrying out of their clauses; (c) Which are of a judicial character, that is to say, susceptible of being settled by pecuniary indemnities. 2. The following Powers: Undertake, in furtherance of the provisions of the preceding Article, to submit to the arbitration of The Hague Court all disputes which shall not have been settled through diplomatic channels relating to Fisheries; Submarine cables; Sanitary questions; Frontier incidents; Collisions between public ships and foreign private ships, etc. 3. The High Contracting Parties may, by simple notification to the International Bureau created by Article XXII. of the Convention of July 29, 1899, make by agreement between any two or more of these such additions as they may deem fit to the preceding Article. 4. Any matter belonging to any of the above categories is arbitrable, (a) When two Contracting Powers are directly involved; (b) When one of the Parties is a Signatory State and the other an individual or individuals belonging to the Signatory State which proposes arbitration. 5. In case of a dispute which falls within the jurisdiction of the national judicial authorities in accordance with the territorial laws of the State concerned, the Contracting Parties are entitled to refrain from submitting the dispute to arbitration under this Convention until the competent national jurisdiction shall have given its final decision.1 When a dispute is of this nature, the defendant State shall not be entitled to raise any question of limitation of action, so long as the matter remains in the diplomatic channel, and, in that case, the limitation of action shall run only from the time when the private party shall have received written notice that the Government representing such party has desisted from the affair pending application to the national jurisdiction. 6. The undertakings contained in the present treaty do not imply any obligation to submit to The Hague Court disputes of a local character which can best be settled by arbitration on the spot. Nevertheless, a complete copy of all acts and minutes of any arbitration held elsewhere than at The Hague shall be deposited in the archives of the said Court. 7. The appointment of the arbitrator or arbitrators and the settling of all details of procedure shall be effected in accordance with Articles XLV. and LII. of the Convention of October 18, 1907, above mentioned. 8. In case of any dispute which a Signatory Power shall not consider susceptible of being submitted to arbitration, the Signatory Powers undertake, so far as possible, to give effect to Article VIII. of the Convention of October 18, 1907, by each party to a dispute appointing a mediator. 9. Any Signatory Power may withdraw from the present Treaty by giving to the above-mentioned International Bureau at The Hague notification to that effect one year in advance. 10. The International Bureau at The Hague is entrusted with the immediate transmission to the Signatory Powers of all communications which may be sent to it on the subject-matters of the present Treaty. In faith whereof, etc. etc. It will have been observed that down to Article IV. this draft 1 Based on the Italo-Dutch Treaty of November 30, 1909, and the Franco-Danish Treaty of August 9, 1911. is in strict accordance with the unanimously adopted principles enunciated above. The principle of compulsory arbitration is its starting-point. It then sets out the matters which the Conference unanimously agreed to regard as arbitrable without any restriction, and contains a further blank clause for the inclusion of other matters in accordance with the unanimous authority of the Conference. All this is a mere formulation of what has already been decided. Articles IV., V., and VI. of the above draft deal with matters which have not yet been considered at the Conferences, but which subsequent experience has shown to be of such importance that they involve the very existence and utility of international arbitration itself. Article IV. deals with a matter which gives rise to divergent views. Under the terms of the Anglo-French Treaty of Arbitration : "Differences of a judicial order between the two Contracting Parties" which the H.C.P. have not been able to settle diplomatically are to be submitted to The Hague Court. This formula, simple as it seems, bears different interpretations. When the two Contracting States have a difference which involves no private interests, that the matter is arbitrable is not disputed. When only private interests are at stake, there is also no question that the matter belongs to the jurisdiction of the ordinary Courts. But there are mixed cases in which the interest of a State and the interest of a foreign individual claimant are in conflict. In such a case, even where State and individual are treated without distinction as to jurisdiction or procedure, there always remains the fact that the State within its own territory may be, at any rate, suspected of having a preponderating position. But where the State is not assimilated to a private defendant, where it cannot be sued like an ordinary individual, where a special jurisdiction is reserved for it, where, for instance, in case of a collision between a French warship and a private ship in the waters of the State to which the private ship belongs, the State to which the warship belongs cannot on the ground of exterritoriality be sued before the natural jurisdiction, i.e. that of the place of the collision, is not such a matter essentially a case in which the national jurisdiction ought to be supplemented, in case of need, by an independent jurisdiction? Let us furthermore assume that according to the internal legislation of this State, the only competent jurisdiction is a Council of State, whose members are public officials dependent on and holding their office at the discretion of that State, is not such a reference to arbitration doubly desirable? Now, the French Admiralty holds that the above-cited Treaty applies only to litigation where a State interest is directly |