Harper's Encyclopedia of United States History
Benson Lossing, Ed.

Arbitration, international Court of,

The Arbitration Treaty consists of sixty-one [191] articles, divided into four titles: First, On the Maintenance of General Peace, consisting of one declaratory article; secondly, On Good Offices and Mediation; thirdly, On International Commissions of Inquiry; fourthly, On International Arbitration.

The following is a summary of the treaty:

Article 1. With the object of preventing, as far as possible, recourse to force in international relations, the signatory powers agree to use all endeavors to effect by pacific means a settlement of the differences which may arise among them.

Article 2. The signatory powers decide that in cases of serious differences or conflict they will, before appealing to arms, have recourse, so far as circumstances permit, to the good offices or mediation of one or several friendly powers.

Article 3. Independently of this, the signatory powers deem it useful that several of the powers not committed to the arbitration scheme shall, on their own initiative, offer, as far as circumstances permit, their good offices or mediation to the contending states. The right of offering their good offices belongs to powers not connected with the conflict, even during the course of hostilities, which act can never be regarded as an unfriendly act.

Article 4. The part of mediator consists in reconciling conflicting claims and appeasing resentment which may have arisen between contending states.

Article 5. The functions of mediator cease from the moment it may be stated by one of the contending parties, or by the mediator himself, that the compromise or basis of an amicable understanding proposed by him has not been accepted.

Article 6. Good offices and mediation have the exclusive character of counsel, and are devoid of obligatory force.

Article 7. The acceptance of mediation unless otherwise stipulated, may have the effect of interrupting the obligation of preparing for war. If the acceptance supervenes after the opening of hostilities it shall not interrupt, unless by a convention of a contrary tenor, military operations that may be proceeding.

Article 8. The signatory powers agree in commending the application of special mediation in the event of threatened interruption of peace between members. Contending states may each choose a power to which they will intrust the mission of entering into a negotiation with a power chosen by the other side with the object of preventing a rupture of pacific relations, or, in the event of hostilities, of restoring peace.

Articles 9 to 14 provide for the institution of an international commission of inquiry for the verification of facts in cases of minor disputes not affecting the vital interest or honor of states, but impossible of settlement by ordinary diplomacy. The report of an inquiry commission will not force an arbitral judgment, leaving the contending parties full liberty to either conclude an amicable arrangement on the basis of the report or have recourse ulteriorly to mediation or arbitration.

Articles 15 to 19 set forth the general object of and benefits it is hoped to derive front the arbitration court, and declare that signing the convention implies an undertaking to submit in good faith to arbitral judgment. The summary of the proposed treaty continues:

Article 20. With the object of facilitating an immediate recourse to arbitration for international differences not regulated by diplomatic means the signatory powers undertake to organize in the following manner a permanent court of arbitration, accessible at all times and exercising its functions, unless otherwise stipulated, between the contending parties in conformity with the rules of procedure inserted in the present convention.

Article 21. This court is to have competency in all arbitration cases, unless the contending parties come to an understanding for the establishment of special arbitration jurisdiction.

Article 22. An international bureau established at The Hague and placed under the direction of a permanent secretary-general will serve as the office of the court. It will be the intermediary for communications concerning meetings. The court is to have the custody of archives and the management of all administrative affairs.

Article 23. Each of the signatory powers shall appoint within three months of the ratification of the present article not more than four persons of recognized competence in questions of international law, enjoying the highest moral consideration, and prepared to accept the functions of arbitrator. The persons thus nominated will be entered as members of the court on a list, which will be communicated by the bureau to all the signatory powers. Any modification of the list will be brought by the bureau to the knowledge of the signatory powers. Two or more powers may agree together regarding the nomination of one or more members, and the same person may be chosen by different powers. Members of the court are to be appointed for the term of six years. The appointments are renewable. In case of the death or resignation of a member of the court, the vacancy is to be filled in accordance with the regulations made for the original nomination.

Article 24. The signatory powers who desire to apply to the court for a settlement of differences shall select from the general list a number of arbitrators, to be fixed by agreement. They will notify the bureau of their intention of applying to the court, and give [192] the names of the arbitrators they may have selected. In the absence of a convention to the contrary an arbitral tribunal is to be constituted in accordance with the rules of Article 1. Arbitrators thus nominated to form an arbitral tribunal for a matter or question will meet on the date fixed by the contending parties.

Article 25. The tribunal will usually sit at The Hague, but may sit elsewhere by consent of the contending parties.

Article 26. The powers not signing the convention may apply to the court under the conditions prescribed by the present convention.

Article 27. The signatory powers may consider it their duty to call attention to the existence of the permanent court to any of their friends between whom a conflict is threatening, which must always be regarded as a tender of good offices.

The United States delegates attached to their acceptance of Article 27 the following declaration: “Nothing contained in this convention shall be so construed as to require the United States of America to depart from its traditional policy of not intruding upon, interfering with, or entangling itself in the political questions or internal administration of any foreign state; nor shall anything contained in said convention be so construed as to require the relinquishment by the United States of America of its traditional attitude towards purely American questions.”

Article 28. A permanent council, composed of the diplomatic representatives of the signatory powers residing at The Hague and the Netherlands Foreign Minister, who will exercise the functions of president, will be constituted at The Hague as soon as possible after the ratification of the present act. The council will be charged to establish and organize an international bureau, which will remain under its direction and control. The council will notify the powers of the constitution of the court and arrange its installation, draw up the standing orders and other necessary regulations, will decide questions likely to arise in regard to the working of the tribunal, have absolute powers concerning the appointment, suspension, or dismissal of functionaries or employees, will fix the emoluments and salaries, and control the general expenditure. The presence of five members at duly convened meetings will constitute a quorum. Decisions are to be taken by a majority of the votes. The council will address annually to the signatory powers a report of the labors of the court, the working of its administrative services, and of its expenditure.

Article 29. The expenses of the bureau are to be borne by the signatory powers in the proportion fixed for the International Bureau of the Universal Postal Union.

Article 30. The powers who accept arbitration will sign a special act, clearly defining the object of the dispute, as well as the scope of the arbitrators. The powers act confirms the undertaking of the parties to submit in good faith to the arbitration judgment.

Article 31. Arbitration functions may be conferred upon a single arbitrator, or on several arbitrators designated by the parties at their discretion, or chosen from among the members of the permanent court established by the present act. Unless otherwise decided, the formation of the arbitration tribunal is to be effected as follows: Each party will appoint two arbitrators, who will choose a chief arbitrator. In case of a division, the selection is to be intrusted to a third power, whom the parties will designate. If an agreement is not effected in this manner, each party is to designate a different power, and the choice of a chief arbitrator is to devolve upon them.

Article 32. When an arbitrator is a sovereign, or head of a state, the arbitral procedure depends exclusively on his august decision.

Article 33. The chief arbitrator is president de jure. When the tribunal does not contain a chief of arbitration, the tribunal may appoint its own president. He may be designated by the contending parties, or, failing this, by the arbitration tribunal.

Articles 34 to 50 provide for the appointment of councillors, the selection of the languages to be employed, and the rules of procedure in the court, whose sittings are to be behind closed doors.

Article 51 provides that a judgment agreed to by a majority vote is to be set forth in writing, giving the full reasons, and is to be signed by each member, the minority recording its dissent and signing it. Articles 52 and 53 direct that the decision of the court shall be read at a public sitting in the presence of the agents or counsel of the contending parties, who shall finally decide the matter at issue and close the arbitration proceedings.

The concluding clauses relate to the revision of proceedings in the case of the discovery of a new fact, and provide that each power shall bear its own expenses and agreed share of the cost of the tribunal without reference to the penalties imposed.

The Senate of the United States having ratified the arbitration treaty. President McKinley appointed the American members of the court in 1900 (see below).

On Feb. 1, 1901, fifteen nations, embracing all the maritime powers, had appointed their members. The official roster then was as follows: [193]

Austria-Hungary.

His Excellency Count Frederic Schonborn, Ll.D., president of the Imperial Royal Court of Administrative Justice, former Austrian Minister of Justice, member of the House of Lords of the Austrian Parliament, etc.

His Excellency Mr. D. de Szilagyi, ex-Minister of Justice, member of the House of Deputies of the Hungarian Parliament.

Count Albert Apponyi, member of the Chamber of Magnates and of the Chamber of Deputies of the Hungarian Parliament, etc.

Mr. Henri Lammasch, Ll.D., member of the House of Lords of the Austrian Parliament, etc.

Belgium.

His Excellency Mr. Beernaert, Minister of State, member of the Chamber of Representatives, etc.

His Excellency Baron Lambermont, Minister of State, Envoy Extraordinary and Minister Plenipotentiary, Secretary-General of the Ministry of Foreign Affairs.

The Chevalier Descamps, Senator.

Mr. Rolin Jacquemyns, ex-Minister of the Interior.

Denmark.

Prof. H. Matzen. Ll.D., Professor of the Copenhagen University, Counsellor Extraordinary of the Supreme Court, President of the Landsthing.

France.

M. Leon Bourgeois, Deputy, ex-President of the Cabinet Council, ex-Minister for Foreign Affairs.

M. de Laboulaye, ex-Ambassador.

Baron Destournelles de Constant, Minister Plenipotentiary, Deputy.

M. Louis Renault, Minister Plenipotentiary, Professor in the Faculty of Law at Paris, Law Office of the Department of Foreign Affairs.

Germany.

His Excellency Mr. Bingner, Ll.D., Privy Councillor, Senate President of the Imperial High Court at Leipsic.

Mr. von Frantzius, Privy Councillor, Solicitor of the Department of Foreign Affairs at Berlin.

Mr. von Martitz, Ll.D., Associate Justice of the Superior Court of Administrative Justice in Prussia, Professor of Law at the Berlin University.

Mr. von Bar, Ll.D., Judicial Privy Councillor, Professor of Law at the Gottingen University.

Great Britain.

His Excellency the Right Honorable Lord Pauncefote of Preston, G. C.B., G. C.M. G., Privy Councillor, Ambassador at Washington.

The Right Honorable Sir Edward Baldwin Malet, ex-Ambassador.

The Right Honorable Sir Edward Fry, member of the Privy Council, Q. C.

Professor John Westlake, Ll.D., Q. C.

Italy.

His Excellency Count Constantin Nigra, Senator of the Kingdom, Ambassador at Vienna.

His Excellency Commander Jean Baptiste Pagano Guarnaschelli, Senator of the Kingdom, First President of the Court of Cassation at Rome.

His Excellency Count Tornielli Brusati di Vergano, Senator of the Kingdom, Ambassador to Paris.

Commander Joseph Zanardelli. Attorney at Law, Deputy to the National Parliament.

Japan.

Mr. I. Motono, Envoy Extraordinary and Minister Plenipotentiary at Brussels.

Mr. H. Willard Denison, Law Officer of the Minister for Foreign Affairs at Tokio.

Netherlands.

Mr. T. M. C. Asser, Ll.D., member of the Council of State, ex-Professor of the University of Amsterdam.

Mr. F. B. Coninck Liefsting, Ll.D., President of the Court of Cassation.

Jonkheer A. F. de Savornin Lohman, Ll.D., ex-Minister of the Interior, ex-Professor of the Free University of Amsterdam, member of the Lower House of the States-General.

Jonkheer G. L. M. H. Ruis de Beerenbrouck, ex-Minister of Justice, Commissioner of the Queen in the Province of Limbourg.

Portugal.

Count de Macedo, Peer of the Realm, ex-Minister of Marine and Colonies, Envoy Extraordinary and Minister Plenipotentiary at Madrid.

Rumania.

Mr. Theodore Rosetti, Senator, ex-President of the High Court of Cassation and Justice.

Mr. Jean Kalindero, Administrator of the Crown Domain, ex-Judge of the High Court of Cassation and Justice.

Mr. Eugene Statsco, ex-President of the Senate, ex-Minister of Justice and Foreign Affairs.

Mr. Jean N. Lahovari, Deputy, ex-Envoy Extraordinary and Minister Plenipotentiary, ex-Minister of Foreign Affairs.

Russia.

Mr. N. V. Mouravieff. Minister of Justice, Active Privy Councillor, Secretary of State of His Majesty the Emperor.

Mr. C. P. Pobedonostzeff, Attorney-General of the Most Holy Synod, Active Privy Councillor, Secretary of State of His Majesty the Emperor.

Mr. E. V. Frisch, President of the Department of Legislation of the Imperial Council, Active Privy Councillor, Secretary of State of His Majesty the Emperor.

Mr. de Martens, Privy Councillor, permanent member of the Council of the Ministry of Foreign Affairs. [194]

Spain.

His Excellency the Duke of Tetua<*>, ex-Minister of Foreign Affairs, Senator of the Kingdom, Grandee of Spain.

Mr. Bienvenido Oliver, Director-General of the Ministry of Justice, ex-Delegate of Spain to the Conference on Private International Law at The Hague.

Dr. Manuel Torres Campos, Professor of International Law at the University of Grenada, associate member of the Institute of International Law.

Sweden and Norway.

Mr. S. R. D. K. d'olivecrona, member of the International Law institute, ex-Associate Justice of the Supreme Court of the Kingdom of Sweden, Doctor of Laws and Letters at Stockholm.

Mr. G. Gram, ex-Minister of State of Norway, Governor of the Province of Hamar, Norway.

United States.

Mr. Benjamin Harrison, ex-President of the United States.

Mr. Melville W. Fuller, Chief-Justice of the United States.

Mr. John W. Griggs, Attorney-General of the United States.

Mr. George Gray, United States Circuit Judge.

First Secretary of the Court — J. J. Rochussen.

Second Secretary of the Court — Jonkheer W. Roell.

the administrative council.

The Administrative Council consists of the Minister of Foreign Affairs of the Netherlands and the diplomatic representatives at The hague of the ratifying powers.

Secretary-General--Mr. R. Melvil, Baron van Leyden, Judge of the District Court of Utrecht and a member of the First Chamber of the States-General.