[22] See examples in Calvo, III. §§ 1707-1712, and in Nys, Les origines du droit international (1894), pp. 52-61.
[23] See La Fontaine's Histoire sommaire et chronologique des arbitrages internationaux in R.I. 2nd Ser. IV. pp. 349, 558, 623. See also Scott, Conferences, pp. 188-252.
The novel institution of the Permanent Court of Arbitration at the Hague stands at present in the cross-fire of impatient pacifists and cynical pessimists. Because a number of wars have been fought since the establishment of the Permanent Court, impatient pacifists are in despair and consider the institution of the Court of Arbitration a failure, whereas cynical pessimists triumphantly point to the fact that the millennium would seem to be as far distant as ever. The calm observer of the facts who possesses insight in the process of historical development, has no cause to despair, for, compared with some generations ago, arbitration is an established force which daily gains more power and influence. And when once a real International Court[24] of justice is established side by side with the Permanent Court of Arbitration, the chances of arbitration will be greatly increased.
[24] See above, [vol. I. § 476b].
V ARBITRATION ACCORDING TO THE HAGUE CONVENTION
Ullmann, §§ 155-156—Bonfils, Nos. 9531-9551—Despagnet, Nos. 742-746bis—Mérignhac, I. pp. 486-539—Holls, The Peace Conference at the Hague (1900)—Martens, La conférence de la paix à la Haye (1900)—Mérignhac, La conférence internationale de la paix (1900)—Fried, Die zweite Haager Konferenz (1908)—Meurer, I. pp. 299-372—Scott, Conferences, pp. 286-385—Higgins, pp. 164-179—Lémonon, pp. 188-219—Nippold, I. pp. 36-231—Wehberg, Kommentar, pp. 46-164.
Arbitral Justice in general.
§ 19. Of the 97 articles of the Hague Convention for the peaceful adjustment of international differences, no fewer than 44—namely, articles 37-90—deal with arbitration in three chapters, headed "On Arbitral Justice," "On the Permanent Court of Arbitration," and "On Arbitral Procedure." The first chapter, articles 37-40, contains rules on arbitral justice in general, which, however, with one exception, are not of a legal but of a merely doctrinal character. Thus the definition in article 37, first paragraph, "International arbitration has for its object the determination of controversies between States by judges of their own choice and upon the basis of respect for law," is as doctrinal as the assertion of article 38: "In questions of a judicial character, and especially in questions regarding the interpretation or application of International Treaties or Conventions, arbitration is recognised by the contracting Powers as the most efficacious and at the same time the most equitable method of deciding controversies which have not been settled by diplomatic methods. Consequently it would be desirable that, in disputes regarding the above-mentioned questions, the contracting Powers should, if the case arise, have recourse to arbitration, in so far as circumstances permit." And the provision of article 39, that an agreement of arbitration may be made respecting disputes already in existence or arising in the future and may relate to every kind of controversy or solely to controversies of a particular character, is as doctrinal as the reservation of article 40, which runs: "Independently of existing general or special treaties imposing the obligation to have recourse to arbitration on the part of any of the contracting Powers, these Powers reserve to themselves the right to conclude, either before the ratification of the present Convention or afterwards, new general or special agreements with a view to extending obligatory arbitration to all cases which they consider possible to submit to it." The only rule of legal character is that of article 37 (second paragraph), enacting the already existing customary rule of International Law, that "the agreement of arbitration implies the obligation to submit in good faith to the arbitral sentence."
On the signatory Powers no obligation whatever to submit any difference to arbitration is imposed. Even differences of a judicial character, and especially those regarding the interpretation or application of treaties, for the settlement of which the signatory Powers, in article 38, acknowledge arbitration as the most efficacious and at the same time the most equitable method, need not necessarily be submitted to arbitration.
Yet the principle of compulsory arbitration for a limited number of international differences was by no means negatived by the Hague Peace Conferences, especially not by the Second Conference.