Should these efforts lead in the near future to the intended result,
International Law would thereby have made an important progress.
It can no longer be denied that International Law does actually exist;
but we undervalue its significance because we are impatient. We do
not notice the advances it has made because they have been small;
but they have been numerous; and slowly, step by step, international
jurisprudence has progressed. This affects not only the awakening sense
of justice and acknowledged principles, but also their application,
which from the days of Hugo Grotius, 250 years ago, down to Martens,
Bluntschli, Calvo, and other most distinguished jurists of our day, has
been the subject of great scholarly activity, by means of which the
various regulations of jurisprudence have little by little been pieced
together into a foundation and substance of universally accepted law.
What has been most generally done to gain the object in view has
been the INSERTION OF ARBITRAL CLAUSES in treaties which were being
concluded or had already been concluded in reference to other
questions. In this direction SIGNOR MANCINI of Italy has been
especially active. As during the time he was Minister of Foreign
Affairs he had the concluding of a great number of treaties between
Italy and other countries, he made use of the opportunity to insert
into almost all--in nineteen instances[1]--an arbitral clause.
We have examples of treaties with such clauses in the commercial
treaty between Italy and England, 1883; Norway, Sweden, and Spain, by
a supplement in 1887; also England and Greece, 1886. According to the
first two agreements, all disputes about the right understanding of
the treaties shall be settled by arbitration, as soon as it becomes
apparent that it is vain to hope for a friendly arrangement. In the
Greco-English treaty it is further stipulated that all disputes which
directly or indirectly may arise in consequence of that treaty always
shall, if they cannot be amicably arranged, be referred to a committee
of arbitration, which shall be nominated by each party with a like
number of members; also that if this committee cannot agree, there
shall be appointed a tribunal of arbitration, whose decision both
nations bind themselves to accept.
The idea of concluding distinct TREATIES OF ARBITRATION, or of giving a
widely extended range to arbitral clauses, so that they should affect
the whole relation of the contracting parties to one another, is
comparatively new.
So far as I know, Mr. William Jay was the first who in modern times
advocated this idea, in a work which came out in New York in 1842, and
in which he proposed: that in the next treaty between, for example, the
United States and France, it should be stated that in case any dispute
should arise between the two nations, not only in respect of the
interpretation of that treaty, but also in respect of any other subject
whatever, the dispute should be settled by means of an arbitration by
one or more friendly powers.
A similar proposition was presented to Lord Clarendon in 1853. By
sending a deputation to the plenipotentiaries at the CONGRESS AT
PARIS in 1856, the English "Peace Society" succeeded in inducing
them to introduce into, one of the protocols a solemn recognition
of the principle of Arbitration. In the name of their governments
they expressed the wish that the states between which any serious
misunderstanding should arise, should, as far as circumstances
permitted, submit the question to the arbitration of a friendly power
before resorting to arms. This proposition, which was unanimously
adopted, was made by Lord Clarendon, the representative of England, and
supported by the emissaries of France, Prussia, and Italy,--Walewsky,
Manteufel, and Cavour.
But the first movement in favour of independent Treaties of Arbitration
came up in a petition in 1847, from the English Peace Society to
Parliament.
The next year this subject was discussed in the Peace Congress at
Brussels.
A few months later, Cobden brought forward in the House of Commons
an address to the Government, with the request that the Minister of
Foreign Affairs should be charged to invite foreign powers to enter
into treaties with this object. The proposal was in the beginning
received with astonishment and scorn; but called forth later an earnest
and important debate.
About six years later, HENRY RICHARD drew the attention of many
influential members of the American Congress to the relations
which were felt to be favourable for trying to arrange a treaty of
arbitration between Great Britain and the United States. American
statesmen, less bound by the old traditions of European diplomacy
would, it was thought, be able with greater freedom to attempt such
a novelty. The replies to this application were very favourable and
encouraging, and in various ways since then attempts have been made to
realize the idea.
IN MANY PARLIAMENTS from time to time propositions in this direction
have been brought forward and approved.
On July 8th, 1873, Henry Richard brought before the English Parliament
a proposition requesting the Government to invite negotiation
with foreign powers for creating a universal and well-established
international system of arbitration. The then Prime Minister,
Gladstone, expressed himself as favourable to, the proposal, but
advised its being withdrawn. Richard, nevertheless, persisted that it
should be dealt with, and obtained the remarkable result, that it was
carried with a majority of ten.
This example was followed by the ITALIAN CHAMBER OF DEPUTIES, Nov.
24th of the same year; and again on July 12th, 1890;[2] by the STATES
GENERAL OF HOLLAND, Nov. 27th, 1874; by the BELGIAN CHAMBER OF
REPRESENTATIVES, Dec. 19th, 1875; and shortly after by the SENATE of
the United States of America, and CONGRESS also, June 17th, 1874; and
April 4th, 1890.
The last-named resolution of Congress had been accepted by the Senate,
Feb. 15th of the same year, being recommended by the Committee on
Foreign Affairs, and runs thus:--
The President be, and is hereby requested to invite from time to
time, as fit occasions may arise, negotiations with any government
with which the United States has or may have diplomatic relations,
to the end that any difficulties or disputes arising between them,
which cannot be adjusted by diplomatic agency, may be referred to
arbitration, and be peaceably adjusted by such means.
On May 9th, 1890, Don Arturo de Marcoartu moved in the SPANISH SENATE
that the Spanish Government should enter into relations with other
European powers to bring about a permanent tribunal of arbitration in
Europe. In the first place, the mover proposed that the states should
come to an agreement upon a general truce for five years. In that
interval a congress of emissaries from all the European Governments and
Parliaments should be called together. The business of the congress
should be to work out a code of international law. The proposition was
urged, especially with regard to the necessity of finding a reasonable
solution of the great social question, since all effort in that
direction appears to be hopeless so long as the savings of the nations
are swallowed up by military expenditure. The Minister of Foreign
Affairs requested the Senate to take the proposition into serious
consideration, and on June 14th the Senate resolved to authorize the
Government to enter into negotiations with foreign powers for the
object indicated.
Neither are the Scandinavian Parliaments unaffected by this movement.
As far back as 1869 the question of arbitration was mooted in the
SWEDISH PARLIAMENT by Jonas Jonassen. In 1874 he proposed in the second
chamber that Parliament should submit to the King "that it would behove
his majesty on all occasions that might present themselves to support
the negotiations which foreign powers might open with Sweden or with
each other with reference to the creation of a tribunal of arbitration
for the solving of international disputes." The committee which dealt
with the proposition advised its acceptance. The Lower House passed
it, March 21st, by seventy-one votes against sixty-four; but the Upper
House rejected it.
The miserable dealing of the Parliament of 1890 with the question I
shall have occasion to refer to further on.
In the same year, the question made surprising advance in NORWAY. On
March 5th the Storting voted on the motion of Ullmann and many others,
by eighty-nine votes against twenty-four, an address to the King, which
begins thus:--
"The Storting hereby respectfully approaches your Majesty, with the
request that your Majesty will make use of the authority given by the
constitution in seeking to enter into agreements with foreign powers,
for the settling by arbitration of disputes which may arise between
Norway and those powers."