But indirectly they had a most happy effect, for they worked as a unifying influence in the preparation of subsequent manuals and the amendment of existing ones. The increasing interest in the subject thus stimulated led the Institute of International Law to give the matter still further thought, with the result that that eminent body of jurists in 1880 adopted a very full and excellent code, which gave evidence of much advance in the knowledge of the subject.
But neither the Brussels rules nor the code of the Institute of International Law possessed any binding authority, save in so far as they embodied generally accepted usage; their influence, however, increased the tendency in the direction of a common manual such as that which Alexander II had hoped to secure—a hope which has now been realized, and in a manner worthy of the subject. This logical step, too long delayed, is due to the Peace Conference. It devoted most careful consideration to the various codes, and has enriched, extended, and unified the rules and improved the whole by many valuable provisions suggested by the intervening experience. Altogether, the result is a splendid example of a natural evolution which, commencing with the distinction between “combatant” and “non-combatant” founded on the considerations of mercy and justice pleaded by Grotius, subsequently recognized in the Peace of Westphalia, increasingly practiced since then, and at the instance of Lincoln embodied in a manual, has now led to the adoption of a common international code for the conduct of future armies in the field—a result which marks the triumph in our day of the conception of civilized warfare tempered with mercy over the old idea of indiscriminate and inhuman slaughter.
The Sphere of Arbitration.—A matter that has given rise to much speculation is the jurisdiction of arbitral tribunals. It has come to be recognized that a distinction must be made between different classes of international disputes. What may be called “business disputes” between states, such as boundary lines, tariffs, damages, fishery claims, questions of citizenship, and various treaty arrangements—like the most-favored nation clause—are all fit subjects for arbitration.[J] But the graver questions involving the consideration of national policy and aspirations, vital interests and honor, race and religious prejudices and passions, and last of all self-preservation, are, at least for the present, far beyond the competence of an arbitration tribunal.[K]
[J] See Essai sur l’Organisation de l’Arbitrage International, by M. Descamps, p. 24.
[K] The Transvaal War pertinently illustrates the prevailing want of knowledge regarding the true sphere of arbitration. Ever since the outbreak of war the Continental press and some American papers have been asking why the provisions of the Peace Conference are not put in operation. Much of this is due to anglophobia; much to a genuine ignorance of the matter. The treatment of the subject usually takes the form of an antithesis in which Great Britain as a peace power at the conference is contrasted with Greater Britain making war on a little republic, and this is invariably followed with a statement or inference that the Peace Conference was a huge farce, and the Permanent Court a dire failure. It is now quite plain that the root of the difficulty between England and the Transvaal was not the franchise nor the dynamite monopoly, but English versus Dutch predominancy in the whole of South Africa, and therefore a grave clash of two opposing policies, involving the deepest questions of interest and even self-preservation. Regarding these questions the conference was unanimous in the opinion that they are entirely outside the sphere of arbitrable question.
If the list of arbitral decisions hitherto given be examined it will show that questions of the first sort above are those which have thus far been submitted to judicial settlement.[L] It is therefore in harmony with past experience that the conference, in generally defining the scope of arbitration, declared it to be intended for the settlement of “questions of a juridical nature,” especially the interpretation and application of international agreements upon the basis of respect for law.[M] The frequency of these “business questions” is on the increase; they seriously embarrass diplomatic representatives, whose proper duty is the conduct of graver matters of policy, and there is a growing disposition to submit them to legal settlement. Under these circumstances, there is little doubt that the time has come when the system of special temporary courts of arbitration, splendid as their work has been, must give way to a more adequate system—they were indeed but stepping stones to a more permanent organization. Under the old system each power was likely to wait for the other to take the initiative; then came a squabble as to just how much and what part of the difficulty should be submitted to arbitration, then a squabble about judges, then a squabble about procedure, place of trial, and so on—all was unpreparedness, uncertainty, and meantime angry passions had full play.
[L] See especially the list given in the back of Darby’s International Tribunals, p. 286.
[M] See Article XV of the Convention.
In the preparation for war the modern state lays no end of force on the necessity for a rapid and systematic mobilization. The weak point, however, in preparing for a judicial contest hitherto has been the absence of any system by which to “mobilize judges and counsel” and get the legal forces out into the field. To attain this end the scheme presented by Lord Pauncefote and unanimously adopted by the conference will be found to be a most striking example of the happy adaptation of a means to an end where the way seemed blocked by infinite difficulties. It consists of a few simple provisions for the establishment of an International Bureau of Arbitration with an Administrative Council, and this, with the addition of various other features drawn from the United States, Russia, France, and Italy, with some others, constitutes the composite plan embodied in the Final Act. In brief outline it is as follows:
Permanent Court of Arbitration.—The diplomatic representatives of the signatory powers accredited to The Hague, including the Netherlands Minister of Foreign Affairs as president,[N] are to constitute an administrative council. This council shall organize and establish an International Bureau of Arbitration, of which it shall retain the direction and control, pursuant to the provisions of the conference. This bureau shall serve as the office of the court, and contain the archives, and the routine business shall be conducted therein. The signatory powers will each appoint four persons, who shall be men of recognized ability in international law and of high character, and the whole number of persons so appointed shall form a list or panel of members of the court, or the international bench. In case of a difficulty arising between two or more powers which they desire to submit to arbitration, they agree to notify the bureau, and the bureau will ask them to choose a certain number of judges from the panel, and these shall constitute the special bench.[O] An agreement is then to be drawn up stating the object of the litigation and the powers of the arbitrators. This agreement implies the engagement of the parties to submit in good faith to the sentence.