| Dates of agreements to refer. | Parties. | Arbitrating Authority. | Subject-Matter. | Date of award. |
| Table I. Territorial Disputes (Ownership) | ||||
| 1857 | Holland and Venezuela | Queen of Spain | Island of Aves in Venezuela | 1865 |
| 1869 | Great Britain and Portugal | President of United States | Island of Bulama on West Coast of Africa | 1870 |
| 1872 | Great Britain and Portugal | President of French Republic | Delagoa Bay (part of), Inyack and Elephant Is., S.E. Africa | 1875 |
| 1876 | Argentine Republic and Paraguay | President of United States | Territory between the Verde and Pilcomayo river of Paraguay | 1878 |
| 1885 | Great Britain and Germany | Mixed Commission | Islets and guano deposits on S.W. Coast of Africa | 1886 |
| 1886 | Bulgaria and Servia | Mixed Commission | Territory near the village of Bergovo | 1887 |
| 1902 | Austria and Hungary | Mixed Commission (with President of Swiss Federal tribunal as umpire) | Territory in the district of Upper Tatra | 1902 |
| Table II. Delimitation of Frontiers. | ||||
| 1869 | Great Britainand the Transvaal | Lieutenant Governor of Natal | The southern boundary of the S. African Republic | 1870 |
| 1871 | Great Britain and the United States | The German Emperor | The San Juan water boundary | 1872 |
| 1873 | Italy and Switzerland | Mixed Commission (with U.S. Minister at Rome as umpire) | The Canton of Ticino | 1874 |
| 1885 | Great Britain and Russia | Mixed Commission | North-western Afganistan | 1887 |
| 1890 | France and Holland | Tsar of Russia | French Guiana and Dutch Guiana | 1891 |
| 1895 | Great Britain and Portugal | President of the Italian Court of Appeal | Manicaland | 1897 |
| 1897 | France and Brazil | President of the Swiss Confederation | River Yapoe named in the Treaty of Utrecht 1813 | 1900 |
| 1901 | Great Britain and Brazil | King of Italy | British Guiana | 1904 |
| 1903 | Great Britain and Portugal | King of Italy | Barotseland | 1905 |
| Table III. Pecuniary Claims in respect of Seizures and Arrests. | ||||
| 1851 | United States and Portugal | President of French Republic | Seizure of the American privateer “General Armstrong” | 1852 |
| 1863 | Great Britain and Brazil | King of the Belgians | Arrest of three British officers of the ship “La Forte” | 1863 |
| 1863 | Great Britain and Peru | Sentate of Hamburg | Arrest at Callao of Capt. Melville White, a British subject | 1864 |
| 1870 | United States and Spain | Mixed Commission | The American S.S. “Col. Lloyd Aspinwall” | 1870 |
| 1873 | Japan and Peru | Tsar of Russia | The Peruvian barque “Maria Luz” | 1875 |
| 1874 | United States and Colombia | Mixed Commission | The American S.S. “Montijo” | 1875 |
| 1879 | France and Nicaragua | French Court of Cassation | The French ship “La Phare” | 1880 |
| 1885 | United States an Spain | Italian Minister at Madrid | The American S.S. “The Masonic” | 1885 |
| 1888 | The United States and Denmark | British Minister at Athens | The S.S. “Benjamin Franklin” and the barque “Catherine Augusta” | 1890 |
| 1895 | Great Britain and Netherlands | Tsar of Russia, who delegated his duties to Professor F. de Martens | Arrest of the master of the “Costa Rica” packet (a British subject) | 1897 |
(3) The third case before the Hague court was heard in 1904-1905. A controversy not amenable to ordinary diplomatic methods arose between Great Britain, France and Germany on the one hand and Japan on the other hand as to the legality of a house-tax imposed by Japan on Great Britain, France and Germany versus Japan. certain subjects of those powers who held leases in perpetuity. The question upon the true construction of certain treaties between the European powers and Japan which had been made a few years previously. By three protocols signed at Tokyo in August 1902 this question was agreed to be submitted to arbitrators, members of the court at the Hague, one to be chosen by each party with power to name an umpire. The arbitrators chosen were M. Renault, professor of the law faculty in Paris, and M. Montono, the Japanese envoy to the French capital. They named as their umpire and president M. Gram, ex-minister of the state of Norway. In May 1905, an award was pronounced by the majority (M. Gram and M. Renault) in favour of the European contention, M. Montono dissenting both from the conclusion of his colleagues and from the reasons on which it was based.
(4) Barely two months had elapsed since the date of the last award when the Hague court was again called into requisition. The scene of dispute this time was on the S.E. coast of Arabia. Muscat, the capital of the kingdom of Oman on that coast, is ruled by a sultan, Great Britain and the French flag at Muscat. whose independence both Great Britain and France had, in March 1862, “reciprocally engaged to respect.” Notwithstanding this, the French republic had issued to certain native dhows, owned by subjects of the sultan, papers authorizing them to fly the French flag, not only on the Oman littoral but in the Red Sea. A question thereupon arose as to the manner in which the privileges thereby purported to be conferred affected the jurisdiction of the sultan over such dhows, the masters of which, as was alleged, used their immunity from search for the purpose of carrying on contraband trade in slaves, arms and ammunition. In October 1904 the two governments agreed to refer this question to the Hague court. Chief Justice Melville W. Fuller, of the Supreme Court of the United States, was named as arbitrator on the part of Great Britain, M. de Savornin Lohrnan, who had acted in the case of the Californias (No. 1), as arbitrator on the part of France. The choice of an umpire was entrusted to the king of Italy. He named Professor Lammasch, who, as we have seen, had acted in the arbitration with Venezuela in 1903.
A unanimous award was made in August 1905. It was held that although generally speaking every sovereign may decide to whom he will accord the right to fly his flag, yet in this case such right was limited by the general act of the Brussels conference of July 1890 relative to the African slave trade, an act which was ratified by France on the 2nd of June 1892; that accordingly the owners and master of dhows who had been authorized by France to fly the French flag before the last-named date retained this authorization so long as France chose to renew it, but that after that date such authorization was improper unless the guarantees could establish that they had been treated by France as her protégés within the meaning of that term as explained in a treaty of 1863 between France and Morocco. A further point decided was that the owners or master of dhows duly authorized to fly the French flag within the ruling of the first point, did not enjoy, in consequence of that fact, any such right of extra-territoriality as would exempt them from the sovereignty and jurisdiction of the sultan. Such exemption would be contrary to the engagement to respect the independence of the sultan solemnly made in 1862.
Arbitral Procedure.—Not the least of the benefits of the Hague convention of 1899 (strengthened by that of 1907) is that it contains rules of procedure which furnish a guide for all arbitrations whether conducted before the Hague court or not. These may be summarized as follows:—The initial step is the making by the parties of a special agreement clearly defining the subject of the dispute. The next is the choice of the arbitrators and of an umpire if the number of arbitrators is even. Each party then by its agents prepares and presents its case in a narrative or argumentative form, annexing thereto all relevant documents. The cases so presented are interchanged by transmission to the opposite party. The hearing consists in the discussion of the matters contained in the several cases, and is conducted under the direction of the president who is either the umpire, or, if there is no umpire, one of the arbitrators. The members of the tribunal have the right of putting questions to the counsel and agents of the parties and to demand from them explanation of doubtful points. The arbitral judgment is read out at a public sitting of the tribunal, the counsel and agents having been duly summoned to hear it. Any application for a revision of the award must be based on the discovery of new evidence of such a nature as to exercise a decisive influence on the judgment and unknown up to the time when the hearing was closed, both to the tribunal itself and to the party asking for the revision. These general rules are universally applicable, but each case may require that special rules should be added to them. These each tribunal must make for itself.
One special and necessary rule is in regard to the language to be employed. This rule must vary according to convenience and is therefore made ad hoc. In case No. 1 noted above, the court allowed English or French to be spoken according to the nationality of the counsel engaged. The judgment was delivered in French only. In case No. 2 it was agreed that the written and printed memoranda should be in English but might be accompanied by a translation into the language of the power on whose behalf they were put in. The oral discussion was either in English or French as happened to be convenient. The judgment was drawn up in both languages. In case No. 3 French was the official language throughout, but the parties were allowed to make any communication to the tribunal, in French, English, German or Japanese. In case No. 4 French was again the official language, but the counsel and agents of both parties were allowed to address the tribunal in English. The protocols and the judgment were drawn up in French accompanied by an official English translation.
Limits of International Arbitration.—Of the numerous treaties for general arbitration which have been made during the 20th century that between Great Britain and France (1903) is a type. This treaty contains reservations of all questions involving the vital interests, the independence or the honour of the contracting parties. The language of the reservation is open to more interpretations than one. What, for instance, is meant by the phrase “national independence” in this connexion? If it be taken in its strict acceptation of autonomous state sovereignty, the exception is somewhat of a truism. No self-respecting power would, of course, consent to submit to arbitration a question of life or death. This would be as if two men were to agree to draw lots as to which should commit suicide in order to avoid fighting a duel. On the other hand, if the exception be taken to exclude all questions which, when decided adversely to a state, impose a restraint on its freedom of action, then the exception would seem to exclude such a question as the true interpretation of an ambiguous treaty, a subject with which experience shows international arbitration is well fitted to deal. Again, we may ask, what is meant by the phrase “national honour”? It was thought at one time that the honour of a nation could only be vindicated by war, though all that had happened was the slighting of its flag, or of its accredited representative, during some sudden ebullition of local feeling. France once nearly broke off peaceful relations with Spain because her ambassador at London was assigned a place below the Spanish ambassador, and on another occasion she despatched troops into Italy because her ambassador at Rome had been insulted by the friends and partisans of the pope. The truth is that the extent to which national honour is involved depends on factors which have nothing to do with the immediate subject of complaint. So long as general good feeling subsists between two nations, neither will easily take offence at any discourteous act of the other. But when a deep-seated antagonism is concealed beneath an unruffled surface, the most trivial incident will bring it to the light of day. “Outraged national honour” is a highly elastic phrase. It may serve as a pretext for a serious quarrel whether the alleged “outrage” be great or small.
The prospects of the expansion of international arbitration will be more clearly perceived if we classify afresh all state differences under two heads:—(1) those which have a legal character, (2) those which have a political character. Under “legal differences” may be ranged such as are capable of being decided, when once the facts are ascertained, by settled, recognized rules, or by rules not settled nor recognized, but (as in the “Alabama” case) taken so to be for the purpose in hand. Boundary cases and cases of indemnity for losses sustained by non-combatants in time of war, of which several instances have already been mentioned, belong to this class. To the same class belong those cases in which the arbitrators have to adapt the provisions of an old treaty to new and altered circumstances, somewhat in the way in which English courts of justice apply the doctrine of “cy-près.” “Political differences” on the other hand, are such as affect states in their external relations, or in relation to their subjects or dependants who may be in revolt against them. Some of these differences may be slight, while others may be vital, or (which amounts to the same thing) may seem to the parties to be so. All differences falling under the first of these two general heads appear to be suitable for international arbitration. Differences falling under the second general head are, for the most part, unsuitable, and may only be adjusted (if at all) through the mediation of a friendly power.
The interesting problem of the future is—are we to regard this classification as fixed or as merely transitory? The answer depends on several considerations which can only be glanced at here. It may be that, just as the usages of civilized nations have slowly crystallized into international law, so there may come a time when the political principles that govern states in relation to each other will be so clearly defined and so generally accepted as to acquire something of a legal or quasi-legal character. If they do, they will pass the line which at present separates arbitrable from non-arbitrable matter. This is the juridical aspect of the problem. But there is also an economic side to it by reason of the conditions of modern warfare. Already the nations are groaning under the burdens of militarism, and are for ever diverting energies that might be employed in the furtherance of useful productive work to purposes of an opposite character. The interruption of maritime intercourse, the stagnation of industry and trade, the rise in the price of the necessaries of life, the impossibility of adequately providing for the families of those—call them reservists, “landwehr,” or what you will—who are torn away from their daily toil to serve in the tented field,—these are considerations that may well make us pause before we abandon a peaceful solution and appeal to brute force. Lastly, there is the moral aspect of the problem. In order that international arbitration may do its perfect work, it is not enough to set up a standing tribunal, whether at the Hague or elsewhere, and to equip it with elaborate rules of procedure. Tribunals and rules are, after all, only machinery. If this machinery is to act smoothly we must improve our motive power, the source of which is human passion and sentiment. Although religious animosities between Christian nations have died out, although dynasties may now rise and fall without raising half Europe to arms, the springs of warlike enterprise are still to be found in commercial jealousies, in imperialistic ambitions and in the doctrine of the survival of the fittest which lends scientific support to both. These must one and all be cleared away before we can enter on that era of universal peace towards the attainment of which the tsar of Russia declared, in his famous circular of 1898, the efforts of all governments should be directed. Meanwhile it is legitimate to share the hope expressed by President Roosevelt in his message to Congress of December 1905 that some future Hague conference may succeed in making arbitration the customary method of settling international disputes in all save the few classes of cases indicated above, and that—to quote Mr Roosevelt’s words—“these classes may themselves be as sharply defined and rigidly limited as the governmental and social development of the world will for the time being permit.”
Authorities.—Among special treatises are: Kamarowsky, Le Tribunal international (traduit par Serge de Westman) (Paris, 1887); Rouard de Card, Les Destinées de l’arbitrage international, depuis la sentence rendue par le tribunal de Genève (Paris, 1892); Michel Revon, L’Arbitrage international (Paris, 1892); Ferdinand Dreyfus, L’Arbitrage international (Paris, 1894) (where the earlier authorities are collected); A. Merignhac, Traité de l’arbitrage international (Paris, 1895); Le Chevalier Descamps, Essai sur l’organisation de l’arbitrage international (Bruxelles, 1896); Feraud-Giraud, Des Traités d’arbitrage international général et permanent, Revue de droit international (Bruxelles. 1897); Pasicrisie International, by Senator H. Lafontaine (Berne, 1902); Recueils d’actes et protocols de la cour permanente d’Arbitrage, Langenhuysen Frères, the Hague.