International Law. A Treatise Volume I Part 65

[Sidenote: The Deciding Tribunal.]

-- 476. The Court of Arbitration does not as a body decide the cases brought before it, but a tribunal is created for every special case by selection of a number of arbitrators from the list of the members of the Court. This tribunal (article 45) may be created directly by agreement of the parties. If this is not done, the tribunal is formed in the following manner:--Each party selects two arbitrators from the list, of whom one only can be its national or chosen from the persons appointed by it as members of the Permanent Court, and the four arbitrators so appointed choose a fifth as umpire and president. If the votes of the four are equal, the parties entrust to a third Power the choice of the umpire. If the parties cannot agree in their choice of such third Power, each party nominates a different Power, and the umpire is chosen by the united action of the Powers thus nominated. If within two months' time these two Powers cannot come to an agreement, each of them presents two candidates from the list of members of the Permanent Court, exclusive of the members selected by the parties and not being nationals of either of them. Which of the candidates thus selected shall be the umpire is determined by lot.

After this is done, the tribunal is const.i.tuted, and the parties communicate to the International Bureau of the Court the names of the members of the tribunal, which meets at the time fixed by the parties; the members of the tribunal must be granted the privileges of diplomatic envoys when discharging their duties outside their own country (article 46). The tribunal sits at the Hague (article 43), and, except in case of _force majeure_, the place of session can only be altered by the tribunal with the a.s.sent of the parties, but the parties can from the beginning designate another place than the Hague as the venue of the tribunal (article 60). The expenses of the tribunal are paid by the parties in equal shares, and each party pays its own expenses (article 85).[827]

[Footnote 827: The procedure to be followed by and before the Tribunal is described below, vol. II. -- 27.]

The following nine awards have hitherto been given by the Permanent Court of Arbitration:--

(1) On October 14, 1902, in the case of the United States of America _v._ Mexico concerning the _Fonds pieux des Californias_; see Martens, N.R.G. 2nd Ser. x.x.xII. (1905), p. 193.

(2) On February 22, 1904, in the case of Germany, Great Britain, and Italy _v._ Venezuela concerning certain claims of their subjects; see Martens, N.R.G. 3rd Ser. I. (1909), p. 57.

(3) On May 22, 1905, in the case of Germany, France, and Great Britain _v._ j.a.pan concerning the interpretation of article 18 of the treaty of April 4, 1896, and of other treaties; see Martens, N.R.G. 2nd Ser. x.x.xV. (1908), p. 376.

(4) On August 8, 1905, in the case of France _v._ Great Britain concerning the Muscat Dhows; see Martens, N.R.G. 2nd Ser. x.x.xV.

(1908), p. 356.

(5) On May 22, 1909, in the case of France _v._ Germany concerning the Casa Blanca incident; see Martens, N.R.G. 3rd Ser. II. (1910), p. 19.

(6) On October 23, 1909, in the case of Norway _v._ Sweden concerning the question of their maritime frontier; see Martens, N.R.G. 3rd Ser. III. (1910), p. 85.

(7) On September 7, 1910, in the case of the United States of America _v._ Great Britain concerning the North Atlantic Fisheries; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 89.

(8) On October 25, 1910, in the case of the United States of America _v._ Venezuela concerning the claims of the Orinoco Steams.h.i.+p Co.; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 79.

(9) On February 24, 1911, in the case of France _v._ Great Britain concerning the British-Indian Savarkar; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 744.

VII

THE INTERNATIONAL PRIZE COURT AND THE PROPOSED INTERNATIONAL COURT OF JUSTICE

Lawrence, -- 192--Despagnet, No. 683_bis_--Scott, "The Hague Peace Conferences" (1909), pp. 465-511 and 423-464, and in A.J. V.

(1911), pp. 302-324--Gregory in A.J. II. (1908), pp. 458-475.

[Sidenote: The International Prize Court.]

-- 476_a_. The International Prize Court will be established at the Hague according to Convention XII. of the second Hague Peace Conference of 1907. The following are the more important stipulations of this Convention concerning the const.i.tution[828] of the Court:--The Court consists of fifteen judges and fifteen deputy-judges, who are appointed for a period of six years and who rank equally and have precedence according to the date of the notification of their appointment, but the deputy judges rank after the judges (articles 10 to 12). Of the fifteen judges of which the Court is composed, nine const.i.tute a quorum; a judge who is absent or prevented from sitting is replaced by his deputy judge (article 14). The judges enjoy diplomatic privileges and immunities in the performance of their duties when outside their own country (article 13). Each contracting Power appoints one judge and one deputy judge, and the judges appointed by Great Britain, Germany, the United States of America, Austria-Hungary, France, Italy, j.a.pan, and Russia are always summoned to sit, whereas the judges appointed by the other contracting Powers sit by rota, as shown in the table annexed to the Convention (article 15). If a belligerent Power has, according to the rota, no judge sitting in the Court, it may ask that the judge appointed by it shall take part in the settlement of all cases arising from the war; lots shall then be drawn as to which of the judges ent.i.tled to sit according to the rota shall withdraw, and this arrangement does not affect the judge appointed by the other belligerent (article 16). No judge can sit who has been a party, in any way whatever, to the sentence p.r.o.nounced by the National Courts, or has taken part in the case as counsel or advocate for one of the parties; no judge or deputy judge can, during his tenure of office, appear as agent or advocate before the International Prize Court, nor act for one of the parties in any capacity whatever (article 17). The belligerent captor is ent.i.tled to appoint a naval officer of high rank to sit as a.s.sessor, but with no voice in the decision; a neutral Power, which is a party to the proceedings or whose national is a party, has the same right of appointment; if in applying this last provision more than one Power is concerned, they must agree among themselves, if necessary by lot, on the officer to be appointed (article 18). The Court elects its President and Vice-President by an absolute majority of the votes cast; after two ballots, the election is made by a bare majority, and, in case the votes are equal, by lot (article 19). The judges of the International Prize Court are ent.i.tled to travelling allowances in accordance with the regulations in force in their own country, and in addition thereto receive, while the Court is sitting or while they are carrying out duties conferred upon them by the Court, a sum of 100 Netherland florins per diem; the judges may not receive from their own Governments or from that of any other Power any remuneration in their capacity of members of the Court (article 20). The seat of the International Prize Court is at the Hague, and it cannot, except in the case of _force majeure_, be transferred elsewhere without the consent of the belligerents (article 21).

[Footnote 828: Details concerning the const.i.tution of the International Prize Court and the mode of procedure to be followed by and before it, will be given below, vol. II. part III. chapter VI.]

[Sidenote: The proposed International Court of Justice.]

-- 476_b_. Valuable as is the Permanent Court of Arbitration at the Hague, it must be pointed out that it is not a real Court of Justice.

For, firstly, it is not itself a deciding tribunal, but only a list of names out of which the parties in each case elect some members and thereby const.i.tute the Court. Secondly, experience teaches that a Court of Arbitration endeavours more to give an award _ex aequo et bono_ which more or less pleases both parties than to decide the conflict in a judicial manner by simply applying strict legal rules without any consideration as to whether or no the decision will please either party.

Thirdly, since in conflicts to be decided by arbitration the arbitrators each time are selected by the parties, there are in most cases different individuals acting as arbitrators, so that there is no continuity in the administration of justice.

For these reasons it would be of the greatest value to inst.i.tute side by side with the Permanent Court of Arbitration a real International Court of Justice consisting of a number of judges in the technical sense of the term, who are once for all appointed and will have to act in each case that the parties choose to bring before the Court. Such a Court would only take the legal aspects of the case into consideration and would base its decision on mere legal deliberations. It would secure continuity in the administration of international justice, because it would in each case consider itself bound by its former decisions. It would in time build up a valuable practice by deciding innumerable controversies which as yet haunt the theory of International Law. The second Hague Peace Conference of 1907 therefore discussed the question of creating such a Court, but only produced the draft of a Convention concerning the subject. It is, however, to be regretted that this draft Convention speaks of the creation of a judicial "Arbitration" Court, and thereby obliterates the boundary line between the arbitral and the strictly judicial decision of international disputes; it would have been better to speak simply of an International Court of Justice. However that may be, there is no doubt that the near future will bring the establishment of such a Court of Justice in contradistinction to the Permanent Court of Arbitration, for the parties to a conflict frequently hesitate to have it settled by arbitration, whereas they would be glad to have it settled by a strictly judicial decision of the legal questions involved. The same motives which urged the Powers to leave aside the Permanent Court of Arbitration in Prize Cases and to enter into a Convention for the establishment of a real International Prize Court, will in time compel the Powers to establish a real International Court of Justice.[829]

[Footnote 829: It should be mentioned that Costa Rica, Guatemala, Honduras, Nicaragua, and San Salvador in 1907--see Supplement to the _American Journal of International Law_, II. (1908), p. 231--established the "Central American Court of Justice" at Cartago, consisting of five judges, to which they have bound themselves to submit all controversies arising amongst them, of whatsoever nature, no matter what the origin may be, in case they cannot be settled by diplomatic negotiation. This Court is, however, only of local importance, although it is of great value, being the first Court of its kind.]

PART IV

INTERNATIONAL TRANSACTIONS

CHAPTER I

ON INTERNATIONAL TRANSACTIONS IN GENERAL

I

NEGOTIATION

Heffter, ---- 234-239--Geffcken in Holtzendorff, III. pp.

668-676--Liszt, -- 20--Ullmann, -- 71--Bonfils, Nos.

792-795--Pradier-Fodere, III. Nos. 1354-1362--Rivier, II. -- 45--Calvo, III. ---- 1316-1320, 1670-1673.

[Sidenote: Conception of Negotiation.]

-- 477. International negotiation is the term for such intercourse between two or more States as is initiated and directed for the purpose of effecting an understanding between them on matters of interest. Since civilised States form a body interknitted through their interests, such negotiation is in some shape or other constantly going on. No State of any importance can abstain from it in practice. There are many other international transactions,[830] but negotiation is by far the most important of them. And it must be emphasised that negotiation as a means of amicably settling conflicts between two or more States is only a particular kind of negotiation, although it will be specially discussed in another part of this work.[831]

[Footnote 830: See below, ---- 486-490.]

[Footnote 831: See below, vol. II. ---- 4-6.]

[Sidenote: Parties to Negotiation.]

-- 478. International negotiations can be conducted by all such States as have a standing within the Family of Nations. Full-Sovereign States are, therefore, the regular subjects of international negotiation. But it would be wrong to maintain that half- and part-Sovereign States can never be parties to international negotiations. For they can indeed conduct negotiations on those points concerning which they have a standing within the Family of Nations. Thus, for instance, while Bulgaria was a half-Sovereign State, she was nevertheless able to negotiate on several matters with foreign States independently of Turkey.[832] But so-called colonial States, as the Dominion of Canada, can never be parties to international negotiations; any necessary negotiation for a colonial State must be conducted by the mother-State to which it internationally belongs.[833]

[Footnote 832: See above, -- 91.]

[Footnote 833: The demand on the part of many influential Canadian politicians, expressed after the verdict of the Arbitration Court in the Alaska Boundary dispute, that Canada should have the power of making treaties independently of Great Britain, necessarily includes the demand to become in some respects a Sovereign State.]

It must be specially mentioned that such negotiation as is conducted between a State, on the one hand, and, on the other, a party which is not a State, is not _international_ negotiation, although such party may reside abroad. Thus, negotiations of a State with the Pope and the Holy See are not international negotiations, although all the formalities connected with international negotiations are usually observed in this case. Thus, too, negotiations on the part of States with a body of foreign bankers and contractors concerning a loan, the building of a railway, the working of a mine, and the like, are not international negotiations.

[Sidenote: Purpose of Negotiation.]

-- 479. Negotiations between States may have various purposes. The purpose may be an exchange of views only on some political question; but it may also be an arrangement as to the line of action to be taken in future with regard to a certain point, or a settlement of differences, or the creation of international inst.i.tutions, such as the Universal Postal Union for example, and so on. Of the greatest importance are those negotiations which aim at an understanding between members of the Family of Nations respecting the very creation of rules of International Law by international conventions. Since the Vienna Congress at the beginning of the nineteenth century negotiations between the Powers for the purpose of defining, creating, or abolis.h.i.+ng rules of International Law have been frequently and very successfully conducted.[834]

[Footnote 834: See below, ---- 555-568_b_.]