THE settlement of the Alaskan boundary dispute by a joint commission at London in 1903 has afforded opportunity for the revival of a movement in the United States in behalf of a permanent AngloAmerican arbitration treaty. As early as 1890, in a concurrent resolution of Congress, the President was requested to invite negotiations with other friendly states for the adjustment by means of arbitration of differences which should prove incapable of settlement by diplomatic agencies. The House of Commons, on July 16, 1893, adopted a resolution cordially sympathizing with the purpose of Congress, and expressing the hope that Her Majesty’s government would coöperate with the United States in the negotiation of a treaty. The two governments thereupon entered into a discussion concerning a permanent convention of arbitration. Negotiations were, however, suspended in 1895.
In 1896 the American Conference on International Arbitration, comprising some three hundred citizens of distinction, assembled at Washington and adopted resolutions urging “the immediate establishment between the United States and Great Britain of a permanent system of arbitration.” Simultaneously negotiations were resumed between the two governments. The correspondence between the late Lord Salisbury and the Secretary of State, Mr. Richard Olney, in regard to a permanent treaty, illustrates clearly the views of the two governments at that time. It furnishes such a lucid statement of the comparative merits of particular plans for the adjustment of Anglo-American differences, that no discussion of a permanent convention can now be profitably undertaken without considering the points of view of these two statesmen.
In March, 1896, Lord Salisbury informed Mr. Olney that neither government was willing to accept arbitration “upon issues in which the national honor and integrity is involved.” He divided controversies between states into two classes: those which concern merely private disputes, such as a claim for indemnity; and those which concern the state as a whole, such as a claim to territory or sovereignty. The former he deemed to be capable of arbitration, the latter to be on a different footing. He did, however, submit to Mr. Olney the draft of a treaty, in which provision was made for the arbitration of disputes involving even territorial, sovereign, or jurisdictional rights. According to his plan, if a protest were made by either government within a specified time after an award, the award was to be reviewed by a tribunal comprising three British and three American judges, whose decision, by a majority of five to one, should be necessary to affirm the decision and render it valid. The draft contained the further provision that any difference “which in the judgment of either power materially affects its honor or the integrity of its territory, shall not be referred to arbitration under this treaty, except by special agreement.” It was also provided that any controversy might be referred to arbitration with the stipulation that, unless accepted by both powers, the decision should not be valid. In support of this plan Lord Salisbury argued that his government was not prepared for the complete surrender of freedom of action until fuller experience had been acquired. He said: —
“Obligatory arbitration of territorial claims is, in more than one respect, an untried plan, of which the working is consequently a matter of conjecture. In the first place, the number of claims which would be advanced under such a rule is entirely unknown. Arbitration in this matter has as yet never been obligatory.”
He contended that the provisions of international law applicable to such controversies were not ascertained. Under such circumstances, he deemed it wiser “for nations to retain in their own hands some control over the ultimate result of any claim that may be advanced against their territorial rights.” Finally, he contended that knowledge on the part of either state that there would be an escape from an unjust decision would “make the parties willing to go forward with the arbitration, who would shrink from it behind this plea, if they felt that by entering on the proceeding they had surrendered all possibility of self - protection, whatever injustice might be threatened by the award.”
Mr. Olney submitted an amended draft of a convention. By its terms, all differences, even those involving territorial claims, were prima facie arbitrable. Either nation was to reserve the right, however, prior to the convening of the court, to withdraw from the operation of the treaty any particular dispute which might be deemed to involve the national honor or integrity. But if a dispute were once submitted to the tribunal, its award, if unanimous, was to be final; if assented to by a bare majority, either state, within any specified time, might protest. Thereupon, an appellate court, comprising three American and three British judges, was to review the award. If they were equally divided in their decision the judges were to add to their number three impartial jurists. The award rendered by a majority of the court so constituted was to be final. In support of his plan and in reply to the contentions of Lord Salisbury, Mr. Olney pointed out the advantage of allowing a dispute to go before the arbitral tribunal unless affirmative action were taken by either government to annul the jurisdiction of the court. He urged the wisdom of the finality of a majority award, even in respect to territorial claims. Replying to the fear of Lord Salisbury as to an unknown number of territorial disputes which might be submitted to the court, Mr. Olney asked from what quarter they might be expected to arise. He contended that the rules of international law were adequate for the proper consideration and decision of any territorial differences between the United States and Great Britain. His chief objection to the British plan was tersely expressed in these words:
“The United States proposals contemplate no rejection of an award when once arbitration has been resorted to — they reserve only the right not to go into an arbitration if the territorial claim in dispute involves the national honor and integrity. The British proposals also reserve the same right. The vital difference between the two sets of proposals is therefore manifest. Under the British proposal the parties enter into an arbitration, and determine afterwards, when they know the result, whether they will be bound or not. Under the proposals of the United States the parties enter into an arbitration having determined beforehand that they will be bound.”
The treaty which was finally signed by Mr. Olney and the then Sir Julian Pauncefote, in January, 1897, was a compromise. It was there provided that all disputes should be submitted to arbitration, except territorial claims, or those involving the determination of questions of principle, touching the national rights of either party. For their adjustment the following provision was made: —
“Any controversy which shall involve the determination of territorial claims shall be submitted to a tribunal composed of six members, three of whom (subject to the provisions of Article VIII) shall be judges of the Supreme Court of the United States, or Justices of the Circuit Courts, to be nominated by the President of the United States, and the other three of whom (subject to the provisions of Article VIII) shall be judges of the British Supreme Court of Judicature, or members of the Judicial Committee of the Privy Council, to be nominated by Her Britannic Majesty, whose award by a majority of not less than five to one shall be final. In case of an award made by less than the prescribed majority, the award shall also be final, unless either power shall, within three months after the award has been reported, protest that the same is erroneous, in which case the award shall be of no validity.
“In the event of an award made by less than the prescribed majority and protested as above provided, or if the members of the Arbitral Tribunal shall be equally divided, there shall be no recourse to hostile measures of any description until the mediation of one or more friendly powers has been invited by one or both of the High Contracting Parties.”
The treaty embodied Mr. Olney’s idea in so far as provision was made prima facie for the settlement of all classes of disputes, and in that it contemplated complete surrender of control by either litigant over any controversy which should be referred to the court for adjustment. Lord Salisbury, on the other hand, succeeded in retaining the requirement that a majority of five to one should be necessary for the final determination of a dispute involving a territorial claim. The most important feature of the convention was the provision for the settlement of questions of such a character. The plan for a joint commission was not a new one. As early as 1785 the Honorable John Jay as Secretary of Foreign Affairs submitted to Congress a paper concerning the eastern boundary dispute with Great Britain, in which he recommended that that controversy be submitted to an even number of commissioners to be named by the king and by the United States. Each appointee should receive a commission from both governments. The judgment of the tribunal was to be “absolute, final, and conclusive.” In 1790 a special committee of the Senate recommended that if the boundary dispute should not be otherwise amicably settled, a proposal should be made to Great Britain to adjust the matter according to the Jay plan.
Great disappointment throughout the United States attended the announcement of the failure of the Senate to ratify the Convention of 1897, even in amended form. The feeling of regret was intense on account of the large majority of senators who favored the convention. Discouragement on the part of those who had labored for the negotiation of an Anglo-American treaty was marked. As a result, the convention was almost forgotten, the correspondence between the two governments was left unread, and the precise arrangements of the convention were unstudied. Not until the United States became a party to the Hague Convention of 1899, for the establishment of a permanent court of arbitration, and secured the adjustment of the Pious Fund claim against Mexico by recourse to that tribunal, and finally witnessed the settlement of the Alaskan boundary, did the Olney - Pauncefote treaty receive close study in this country. Even now, among those who most zealously desire a permanent convention with Great Britain, there is a surprising lack of knowledge of the provisions of the model of 1897.
The significant feature of the OlneyPauncefote treaty in providing for the adjustment of territorial claims by a joint commission fortunately has received careful examination in England, although it has there invited some criticism. It has been urged that a joint commission is not an arbitral tribunal, but a substitute therefor; that it is in reality a diplomatic and not a judicial body; that the establishment of such a tribunal would be at the expense of the Hague Convention of 1899, establishing a permanent court of arbitration in that city; and that the Convention of 1897 is not a model which should be followed in treaties to which Great Britain may be a party.
It cannot be denied that a commission composed of an equal number of judges representing the parties to a dispute is not a court of arbitration. Such a body lacks the neutral umpire, whose final vote, cast by one who is in no sense the representative of either litigant, ultimately decides the issue. An agreement to submit to a joint commission emphasizes retention of control over the rights in dispute by the parties to the controversy. An agreement to arbitrate signifies complete surrender of those rights to the arbitral court. In the former case an equally divided commission may leave the dispute unsettled. In the latter, a final decision by a majority may always be anticipated. However much a joint commission may differ from a court of arbitration, a tribunal of the former type cannot be said to be a substitute for one of the latter, if the differences to be submitted for settlement are of a kind which the opposing states would be unwilling to arbitrate. It is difficult to see in what respect a joint commission differs from a judicial body. The procedure resembles that in vogue in courts of justice. The decisions of the commissioners are based on the evidence presented, and on the arguments of counsel. To compromise conflicting claims for reasons of expediency, according to the usage of diplomacy, or to render a decision not based on law as applied to the facts presented, is beyond the scope of the powers of the court. According to the terms of the Hague Convention of 1899, the signatory powers reserved “the right to conclude new agreements, general or special in character, with a view to extend compulsory arbitration to all cases which they shall judge possible to submit to it.” The implication is clear that there was contemplated the possible negotiation of treaties of a general and permanent character for the settlement of international differences by any peaceable method. The establishment of a permanent court at The Hague, always accessible to the signatory powers, was intended to facilitate the settlement of controversies wffiich diplomatic agencies should fail to adjust. It was not intended to compel nations to employ that particular method of solving a controversy even where diplomacy should fail, if some other means of settlement were available. An agreement, therefore, to submit AngloAmerican differences of a grave character, such as those involving territorial claims, to a joint commission would not be at the expense of the Hague Tribunal if it be a fact that such controversies are of a kind which neither nation would be willing to submit to arbitration.
Whether or not the Olney-Pauncefote convention furnishes the best model for permanent treaties between states other than the United States and Great Britain is immaterial to the present discussion. It may not. The question is pertinent, however, and fortunately at the present time is raised on both sides of the Atlantic, whether that treaty may not, as a whole, offer an effective and desirable means for the settlement of Anglo-American differences within a wide range. The opinion of Lord Alverstone, expressed at a meeting of the International Law Association at Glasgow in 1901, deserves attention. He said: —
“ Gentlemen, I do not intend to go into that treaty in detail, or to say more than this: that it has always seemed to me that it embodied more of the principles on which a general treaty of arbitration might proceed, than any other state paper which has ever been published.”
Still more recently, at a meeting of the same organization in 1903, Mr. Justice Kennedy said, with respect to the OlneyPauncefote treaty: —
“Whatever views one may have of other things, there can be no doubt that it was a treaty most carefully devised, and one which it is difficult to think could be bettered.”
The practical value of a joint commission was put to the test in the settlement of the Alaskan boundary. The questions at issue in that controversy were of the gravest character, and had proven incapable of settlement by diplomacy. The United States was unwilling to refer its claim to an arbitral tribunal having a neutral umpire. The Senate would undoubtedly have declined to ratify any treaty providing for tlie arbitration of the controversy by the Hague Court or any other similar body. A joint commission offered a means of solution. The HayHerbert treaty of 1903 providing for the submission of the controversy to such a tribunal met with but little senatorial opposition. Within eight months after the ratification of the convention, the court, by a majority of four to two, rendered its decision. Aside from the natural gratification in the United States in the recognition of the American contentions, the attitude of Lord Alverstone produced a profound impression. Throughout the nation it inspired a renewed confidence in the fitness of an Anglo-Saxon jurist of highest repute to aid in the determination of Anglo-American disputes. It established more strongly the belief, which is not of recent origin, that between Great Britain and the United States there may be difficulties of grave aspect, incapable of diplomatic adjustment and possibly not adapted to proper settlement by means of arbitration, and yet still capable of solution by a commission of British and American jurists.
The practical difficulty which confronts the President to - day in concluding a permanent compact with Great Britain is the problem of ratification. There is a natural reluctance on the part of an executive to submit to the Senate a treaty, the approval of which may be withheld. In negotiating a convention, the Secretary of State is, therefore, compelled to recognize the fact that there are many senators who are opposed to a permanent agreement to arbitrate matters of grave import, such as territorial claims, who, nevertheless, might not be hostile to a plan for the adjustment of differences of equal magnitude by a joint commission. The question thus forcibly presents itself, whether it is better for the United States to conclude with Great Britain a convention of arbitration, providing merely for the adjustment of controversies of a minor character by an arbitral court, such as that at The Hague, or to enter into an agreement contemplating the settlement of the more serious class of difficulties, such as territorial claims, by some tribunal other than a court of arbitration. Friction between the United States and England sufficient to endanger their peaceful relations and alarm commercial interests can only be aroused by controversies of the gravest character. For more than a century both nations have employed peaceful methods in the settlement of their mutual differences of the most serious kind, including even those involving the ownership of land. This experience, extending from the determination of the location of the St. Croix River under the Jay treaty of 1794 to the settlement of the Alaskan frontier in 1903, has a significance in AngloAmerican diplomacy which is not likely to be overestimated. It emphasizes a fact which is clearly understood at Washington, that the relations between the United States and Great Britain, whether friendly or unfriendly, are sui generis; that the problems and controversies which may unhappily vex these two nations are capable of settlement by some peaceful means, whatever their kind and magnitude, even though they might result in war if the opposing states were not Anglo-Saxon. A permanent treaty, of wider scope than either the United States or Great Britain might be willing to conclude with any other power, would not be an “entangling alliance. ” It would merely express the national recognition of a relationship which the Declaration of Independence in 1776 failed to dissolve, and which the ClaytonBulwer treaty in 1850, the Hay-Pauncefote treaty of 1901, and finally the Alaskan Boundary Convention of 1903, have served to strengthen.
On the other hand, it may be said that a treaty providing for the settlement of a limited class of controversies by recourse to arbitration is the most appropriate means of initiating a policy which subsequently may lead to an arrangement for the peaceful settlement of differences of the most serious character. A national sense of approval of a system of international arbitration, indicated by the negotiation of conventions adapted to such an end, whatever be their scope, must wield a powerful influence in extending the principles of arbitration to the solution of graver differences. Great Britain and Russia were signatories to the Hague Convention of 1899, by the terms of which it was recommended that, in the event of international disputes arising from differences of opinion on questions of fact, the parties, if unable to come to an agreement by diplomatic methods, should institute an international commission of inquiry to aid in the solution of such disputes “by elucidating the facts by means of an impartial and conscientious investigation.” This recommendation was, however, necessarily limited to cases “involving neither honor nor vital interests” of the contracting parties. Nevertheless, when the recent collision between the Russian Baltic fleet and the fishermen of Hull excited the feelings of two nations over a disputed question of fact, of the very type which the signatories of the Hague Convention did not hesitate to exclude from the operation of their recommendation, Great Britain and Russia quickly agreed to create an international commission of inquiry to investigate the matter and thus facilitate the solution of the controversy.
Of great significance are the recent assurances by President Roosevelt and Secretary Hay, that the administration is ready to enter into treaties of arbitration with such friendly powers as desire them. Announcement in England and America that negotiations have been undertaken for a permanent Anglo-American treaty has aroused wide - spread approval. Whether its scope be great or small, ratification of such a convention ought to be assured. Already the International Arbitration Conference, under the presidency of the Honorable John W. Foster, exSecretary of State, and the International Arbitration Society of Chicago, under the leadership of Dr. Edmund J. James, President of the University of Illinois, as well as local committees in the larger cities, have taken active measures to further the accomplishment of that end. A treaty based on the model of the Anglo-French arbitration agreement of October, 1903, referring to the Hague Tribunal differences of a judicial order or relative to the interpretation of existing treaties, may mean much, even though there be withdrawn from the operation of the convention questions involving the vital interests or independence or honor of the signatory powers. The national experience to be gained from the habit of recourse to a tribunal for which provision may be made, may lead to the submission to that court of controversies of the most serious type. Nevertheless, an Anglo-American treaty of limited scope should be deemed but the beginning of a policy capable of large development. The real value of a permanent convention lies not in the establishment of the principles of arbitration or in strengthening the usefulness or prestige of a particular court, but in firmly establishing the peaceful relations between the United States and Great Britain, and in removing the possibility of war. The resolutions adopted by the National Arbitration Conference in January, 1904, express the growing sentiment of the country at large. It was there recommended that the attempt be made by the United States to negotiate with Great Britain a treaty “to submit to arbitration by the permanent court at The Hague, or, in default of such submission, by some tribunal specially constituted for the case, all differences which they may fail to adjust by diplomatic negotiations; ” and “that the two governments should agree not to resort in any case to hostile measures of any description till an effort has been made to settle any matter in dispute by submitting the same either to the permanent court at The Hague, or to a commission composed of an equal number of persons from each country, of recognized competence in questions of international law.”