VII
THE ARBITRATION TREATY
After negotiations which had been pending for nearly two years, the general Arbitration Treaty between the United States and Great Britain was signed on the 11th of January [1897] by Mr. Richard Olney and Sir Julian Pauncefote, representing the two countries concerned; and on the following day the document was sent by President Cleveland to the Senate for ratification. The provisions of this important treaty may be summarized as follows:—
It is expected that differences arising between the two countries will ordinarily admit of settlement by the customary methods of diplomacy. It is only with cases where such customary methods fail that the provisions of the present treaty are concerned; and the parties hereby agree to submit all such cases to arbitration after the manner herein provided.
The "questions in difference" that are liable to arise are arranged in three grades or classes: (1) small pecuniary claims; (2) large pecuniary claims, and others not involving questions of territory; (3) territorial claims. For each of these grades there is to be a special method of settlement.
First, "all pecuniary claims or groups of claims, which in the aggregate do not exceed $500,000 in amount and do not involve the determination of territorial claims," shall be decided by a tribunal constituted as follows: "Each party shall nominate one arbitrator, who shall be a jurist of repute, and the two arbitrators so nominated shall, within two months of their nomination, select an umpire. In the event of their failing to do so within the limit of time, the umpire shall be appointed by agreement between the members of the Supreme Court of the United States and the members of the Judicial Committee of the Privy Council in Great Britain." In case these persons fail to agree upon an umpire within three months, the King of Sweden and Norway shall appoint one. Among public personages of unquestionable dignity and importance, this sovereign is as likely as any to be free from bias against either the United States of Great Britain; but should either party object to him, they may adopt a substitute, if they can agree upon one. It does not seem likely that the failure to select an umpire would often reach the stage where an appeal to the Swedish King would be necessary. The umpire, when and however appointed, shall be president of the tribunal of three, and the award of a majority of the members shall be final. Under these provisions, it may be expected that all petty claims can be disposed of without unreasonable delay, and with as little risk of unfairness as one would find in any court whatever.
Secondly, "all pecuniary claims or groups of claims exceeding $500,000, and all other matters in respect whereof either of the parties shall have rights against the other, under the treaty or otherwise, provided they do not involve territorial claims," shall be dealt with as follows: Such claims must be submitted to the tribunal of three, as above described, and its award, if unanimous, shall be final. If the award is not unanimous, either party may demand a review of it, but such demand must be made within six months from the date of the award. In such case, the appellate tribunal shall consist of five jurists of repute, no one of whom has been a member of the tribunal of three whose award is to be reviewed. Of these five jurists, two shall be selected by each party, and these four shall agree upon their umpire within three months after their nomination. In case of their failure, the umpire shall be selected (as in the former case) by the members of the Supreme Court and the Judicial Committee of the Privy Council; and if these do not agree within three months, the selection shall be left (as before) to the King of Sweden and Norway. The umpire, when selected, shall preside. The award of the tribunal of three shall be reviewed by this tribunal of five, and the award of a majority of the five shall be final.
Thirdly, "any controversy involving the determination of territorial claims shall be submitted to a tribunal of six members," three of whom shall be judges of the Supreme Court or of Circuit Courts, to be nominated by the President of the United States. The other three shall be members of the highest British court or members of the Judicial Committee of the Privy Council, to be nominated by the Queen. "Their award by a majority of not less than five to one shall be final. If there is less than the prescribed majority, the award shall also be final, unless either party within three months protests that the award is erroneous. If the award is protested, or if the members of the tribunal are equally divided, there shall be no recourse to hostile measures of any description until the mediation of one or more friendly powers shall have been invited by one or the other party." It is also provided that "where one of the United States or a British colony is specially concerned, the President or Queen may make a judicial officer of the state or colony an arbitrator."
In some cases, a question may be removed from the jurisdiction of the tribunal of three or the tribunal of five, and transferred to that of the tribunal of six. If, prior to the close of the hearing of the claim before the lower tribunal, it shall be decided by the tribunal, upon the motion of either party, that the determination of the claim necessarily involves a decision of some "disputed question of principle of grave general importance, affecting the national rights of such party as distinct from its private rights, of which it is merely an international representative," then the jurisdiction of the lower tribunal over the claim shall at once cease, and it shall be dealt with by the tribunal of six.
With regard to territorial claims, a special article defines them as including not only all claims to territory, but also "all other claims involving questions of servitude, rights of navigation, access to fisheries, and all rights and interests necessary to control the enjoyment of either's territory."