THE ARBITRATION QUESTION.[22]
1.--_How the Transvaal interprets Arbitration._
According to the idea prevailing throughout Europe, President Krüger had
conceded everything from the franchise point of view, when all was
ruined by Mr. Chamberlain raising the Suzerainty Question at the last
moment. We have seen the value of these two assertions.
Then, certain members of the ultra peace party ask hotly: "Why did he
not accept arbitration?" The word in itself appears to them to possess
some sovereign virtue. Dr. Kuyper seems to me to be suffering from that
terrible intellectual malady psittacism when he exclaims:--
"Arbitration is the _mot d'ordre_ of modern civilisation."
and he adds:--
"As if arbitration were not the rule between _masters_ and
_workmen_."
I have often demonstrated the "illusion of such arbitration" (among
others see _Le Siècle_, October 6th, 1899), the negative effects
produced in France by the law on optional arbitration, and in England by
the Conciliation Act of 1896.
From an international point of view, the judgment passed by the
Arbitration Tribunal in the matter of the Delagoa Bay Railway, after a
lapse of ten years, is not one to induce governments to have recourse to
it.
In the relations between England and the Transvaal, the Arbitration
Question is closely connected with the Suzerainty Question. It was
raised May 7th, 1897, by the State Secretary, Mr. Van Boeschoten, in
reply to the complaints made in Mr. Chamberlain's despatch of March 6th,
1897, relating to the violation of the 1884 Convention. Mr. Van
Boeschoten's proposal was that the President of the Swiss Confederation
should be asked to appoint an arbitrator.
On October 16th, 1897, Mr. Chamberlain replied:--
"The Government of the South African Republic proposes that the
contested points of the Convention shall be submitted to
arbitration, the arbitrator to be appointed by the President of the
Swiss Confederation. In making this proposal the Government appears
to have misunderstood the difference existing between the
Conventions of 1881 and 1884 and an ordinary treaty between two
independent powers."
The conventions had been made up; they did not suit the Government of
the South African Republic. Could the British Government say: "They do
not suit you. Very well, we will ask the head of a foreign State to
appoint an arbitrator by whom they will be considered and annulled in
the event of his sympathizing with you."
In diplomatic terms Mr. Chamberlain explains that the English Government
could not carry its condescension so far as to subject to the judgment
of a foreigner the result of its policy and the negotiations of its
diplomats. On April 16th, 1898, a claim was made by Dr. Leyds for: "A
tribunal under international law for the especial purpose of deciding
differences of opinion regarding the mode of Government, and the rights
and obligations of the South African Republic towards the British
Government." Again Mr. Chamberlain replied, on December 15th, 1898, that
the English Government could admit of no intervention of a Foreign power
between the Pretoria Government and itself.
During the afternoon of the second day of the Bloemfontein Conference
the arbitration question with regard to Swazieland, was raised by Mr.
Krüger. He returned to the subject on the third day, as follows:--
"In the event of Swazieland becoming part of my Republic; an
agreement being arrived at with reference to the Jameson Raid
indemnity; Her Majesty's Government agreeing to interfere no more
with my internal government; and arriving at an acceptable solution
of the Franchise Question; the matter of English subjects, who,
having no need to become burghers, yet still have reason to
complain of illegal actions, might be submitted to arbitration."
Sir Alfred Milner replied that: "the English Government could not allow
interference between itself and the South African Republic, of a foreign
power or influence; that it might, however, be possible to consider some
other way of nominating an impartial tribunal, and examining certain
questions; but that he himself was not authorised to do so."
In conclusion President Krüger said:--
"Give me Swazieland, the indemnity for the Jameson Raid, and
arbitration, in exchange for the Franchise, otherwise, I should
have nothing. These points would make something worth having."
Sir Alfred Milner's reply was that President Krüger had raised the
question of arbitration, without mentioning the manner of arbitration;
that there were some questions, with regard to which it could not be
admitted by the English Government; that there were others on which it
might be admitted; that, if proposals were put forward, he would submit
them to his Government.
Mr. Krüger's closing words were:--
"I have nothing to add, I shall submit the questions concerning the
Franchise to the Volksraad as soon as I receive the reply that the
English Government accepts my proposal of arbitration."
On June 9th, the proposals relating to arbitration were formulated by
Mr. Reitz, State Secretary to the Pretoria Government. He began by
proving that he could put into people's mouths words which had never
been uttered by them. He declared that "at the Bloemfontein Conference
the High Commissioner was personally favourable to the settlement by
arbitration of all the differences between the two Governments." Sir
Alfred Milner had been careful not to go so far as this.
After this inaccurate preamble the following proposals were made by Mr.
Reitz:--
(1) "In future, all questions arising between the two Governments,
and relating to the interpretation of the London Convention to be
submitted to a tribunal of arbitration, with the exception of
questions of trifling importance."
(2) "The tribunal to be composed of two arbitrators appointed
respectively by each government, as for instance the Chief Justices
of the South African Republic, Cape Colony or Natal. The power to
be given to them of choosing as a third arbitrator, someone who
should be a subject of neither of the disputing parties; the
decision in all cases to rest with the majority."
(3) "The instrument of submission to be considered in each case by
the two governments, in order that both may have the right of
reserving and excluding any points appearing to them too important
to be submitted to arbitration."
Sir Alfred Milner remarked that this project was "a mere skeleton
proposal by which too many things were left undefined." For instance,
what did the words "trifling matters" mean? and what was meant by the
third article, which gives to both Governments the right of excluding
from arbitration points which may appear to them too important to be
submitted to it?
Finally, the very composition of the tribunal was in contradiction to
the reservations made by the English Government. The third arbitrator
would be a foreigner, and with this third arbitrator would rest the
decision.
[Footnote 22: _Le Siècle_, April 26th, 1900.]
2.--_Mr. Chamberlain's Conditions._
In his telegram of July 27th, however, Mr. Chamberlain did not reply by
an absolute definite refusal. He rejected the composition of the
tribunal; but he acknowledged that: "the interpretation of the
convention in detail is not exempt from difficulties, putting aside the
question of the interpretation of the preamble of the Convention of
1881, which regulates the articles substituted in the Convention of
1884." And then Mr. Chamberlain invited Sir Alfred Milner to enquire of
Mr. Krüger whether he would accept the exclusion of the Foreign element
in the settlement of disputes, arising from the interpretation of the
Convention of 1884:
"As to how far and by what method, questions could be decided by a
judicial authority whose independence, impartiality and capacity
should be above suspicion."
Thus the constitution of a tribunal of arbitration was accepted by Mr.
Chamberlain, and in his despatch of August 28th he directed Sir Alfred
Milner to arrange a fresh conference with Mr. Krüger. On September 2nd
the Pretoria Government asks whether the British Government will receive
burghers of the Free State as members of the arbitration tribunal? which
are the subjects it will be competent to settle? and which will be
reserved?
Sir Alfred Milner's views on this subject are stated in a lengthy
despatch to the Government, dated September 8th. The points which Sir
Alfred Milner considered should be excluded from arbitration as being
likely to re-open discussion are the following: (1) The position of the
British Indians; (2) the position of other British coloured subjects;
(3) the right of all British subjects to be treated as favourably as
those of any other country; "a right which has never been formally
admitted by the South African Republic."
Here the Arbitration Question may be said to have dropped, Sir A.
Milner's telegram of September 8th being followed by the ultimatum of
October 9th.
Hence this question was not a new one at the time of the Bloemfontein
Conference. It had been raised by the Government of Pretoria as a means
by which its "inherent rights as a Sovereign State" should be
acknowledged, a pretension which could not be admitted by the British
Government.
As we have seen, however, arbitration was not absolutely refused by Mr.
Chamberlain; he imposed two conditions; the Conventions of 1881 and 1884
were not to be questioned, foreigners were not to be chosen as
arbitrators; the points referred to arbitration should be clearly
specified.
There is a vast difference between this attitude and the arrogant tone
generally ascribed to Mr. Chamberlain. It is always advisable to refer
to the documents on a question before discussing it.