Precise definition of points in dispute essential to Arbitration. the matter in dispute must in itself admit of being formulated in such a way as to be made a matter of judicial decision, as distinguished from an equitable arrangement or adjustment of political claims. Of course, the terms of the reference may be large and indefinite, and considerable powers may be given to the Arbitrators of adjusting claims, even of an indeterminate kind, and making compensatory settlements of a variety of sorts. But the claims, however indeterminate, must be included in precise language, and the limits of the capacity of the Arbitrators must be strictly defined. This condition points to the obvious suitability of Arbitration to all cases in which the dispute relates to a matter of unsettled law, or to controverted matters of fact, or to the correct interpretation to be placed on a Treaty or other legal document, or to the fixing of a boundary line, or to the amount and kind of compensation due for an admitted wrong, or to monetary claims on the part of a State against another State, or of a citizen of one State against another State. In all such matters as these, in which the mere statement of the ground of dispute indicates a readiness to accept a conciliatory solution of it, if such can be found compatible with national self-respect, the field for the friendly offices of other States in forming, or assisting to form, tribunals of Arbitration, is almost illimitable; and it is likely enough increased recourse will be had to this mode of reducing international difficulties, as its value becomes better recognized, and the greater complication of the relations between State and State multiplies occasions of possible disagreement. Cases obviously suitable for Arbitration. But there are other cases of dispute which are far more formidable than those just alluded to, and yet which involve elements of such a refined or incalculable kind that, on the face of it, the settlement often seems to set at defiance the capacity of the best constituted tribunal exercising powers of the most elastic and equitably adjustive kind. These cases of dispute are, as often as not, kept secret by means of a plausible insistence on other more palpable grounds—which are, however, constantly shifted, as a fresh turn in the course of diplomatic negotiation seems to suggest. sary conditions in other cases. The abnormal cases which, on the face of them, seem, for one Difficulty of ful- reason or other, far less adapted for a tribunal of filling the neces- Arbitration than those previously mentioned, belong usually to one or other of the following classes. Either a State believes that the action, or menaced action, of another State is such as seriously to menace its own independence, or even its national existence; or it believes such action is hostile or fatal to some scheme of policy which it has, for reasons sufficient to itself, deliberately adopted and long perseveringly adhered to; or it believes some act of another State, or some imputation cast on itself, to be injurious to what it designates as its own "national honor," and to call not only for instant repudiation, but, possibly, for condign punishment. The question is, whether cases of dispute belonging to these several classes can be looked upon as fulfilling the conditions which the possibility of reference to Arbitration demands. As to the first class of cases, in which the independence or existence of a State is believed to be menaced, it is evident that the terms here used are so wide and indefinite as to afford, in almost any conceivable case, a ready excuse for declining Arbitration to a State indisposed to settle promptly a pending dispute; and as much might be said of the third class of cases here denoted, in which the "national honor" is said to be involved. In respect of both the first and third class of cases, it is often alleged that when once it is believed that existence, independence, or honor are really involved, no State could ever be expected to submit to the judgment of any tribunal, however constituted; and, even if it were, the matters in dispute are usually of too delicate and intangible a kind to be made matters of judicial reference. Mutual distrust of States: its gradual de crease. This jealousy-certainly, at present, not a wholly irrational one —of all tribunals of Arbitration in respect of questions believed to be vital, is due to the struggling rivalries, the selfish assumptions, and the sinuous and unfathomable policy which at present characterize European States. A deep political distrust, easily stirred into active hatred, and generally allied with an overreaching covetousness, is keeping the nations apart, almost as forcibly and constantly as a crowd of moral, social, and economic influences, over which Statesmen have only an indirect control, are drawing them together. The notion, which is banished from the economic world, still survives in the political world, that nations profit, on the whole, from one another's weakness and misfortune, rather than from one another's strength and prosperity. There are innumerable influences at work which are combating this persuasion; but, so long as it continues widely prevalent, no true political equality can exist among States, of a kind to enable any one State to trust itself implicitly to the integrity and justice of all the rest. Thus, though the field of Arbitration is undoubtedly limited Reasons for an- at the present moment, there are two directions in which it is now undergoing, and may be made to undergo much more rapidly, further extension. In the first place, the sensitiveness of States as to what touches their existence, independence, or honor, is already being greatly reduced, and may be reduced still further, especially when a true view is taken of the terrible alternative presented by War, and of the superior concern which all States have in the welfare, rather than in the misfortunes, of other States. ticipating a more general resort to Arbitration in the future. Injurious and wrongful, too, as any contumelious treatment of Appreciation of one State by another is, the remedy is sought by a the evils of War. mutual massacre of the peaceably-disposed citizens of both States, and an enormous destruction of wealth on both sides is by no means satisfactory, either to the States concerned, or to the rest of the world. If the injured State proves to be the stronger in a military sense, a fresh career of injuries from the other side does little to re-establish permanently peaceful relationships. If it proves to be the weaker, the original injury remains, without so much as the shadow of redress, and a fresh crop of injuries, of the most embittering kind, succeeds to it. The final result is a rough and hasty settlement, under circumstances of impassioned hostility, and usually not without the friendly services of those very States whose appearance on a Tribunal of Arbitration would have been, at the outset, indignantly repudiated. fidence in the community of States. In the second place, it is probable that a greater confidence in Growth of con- the disinterested integrity of Foreign Governments will lead to a disposition, on the part of single States, to trust even their most vital interests to the general voice of the European community, rather than to the chances of War. This time seems very remote; but in respect of all neutralized States, and even of all very small States, this end is already practically attained. Even in respect of the largest States, it would hardly be publicly professed that their claim to continued existence is to be exactly proportioned to the military preparations and ability available, from moment to moment, for their protection. The whole tendency of civilization in International, as in National, society, is the other way, and is directed to ridding the individual members of the community of the necessity of self-defence, and to saving the waste of private effort which the necessity for constant readiness occasions. As to the second class of cases, in respect of which it may seem impossible that a State will consent to refer to any tribunal whatever matters which seem to touch a scheme of policy to which it is (in its own eyes) irretrievably committed, this class of cases can only become reduced by a general simplification in such schemes, accompanied by greater diplomatic publicity. This subject will be discussed lower down in a distinct section. Schemes for constituting Courts of Arbitration. There are a variety of schemes which have been devised, and some of which have been put in practice, for the constitution of Arbitration. Some of these schemes are very elaborate and ingenious, and are only wanting in regard for the true political difficulties which, at present, have to be overcome. It has become the fashion of late years to include in Treaties provisions for Courts of Arbitration, variously constituted, to which may be referred the decision of pending questions, or of matters of dispute which may hereafter present themselves, or the interpretation of the language of the Treaty itself. The value of such provisions is very considerable, as the experience of the use of Arbitration, and familiarity with its practice, are likely to help much in extending its scope. But it would be a great gain if any tribunal could be constituted in advance, to which questions might be referred from time to time as they arose. The permanence of such a tribunal, and the continuity of its acts, would impart some credit for indifference in respect of any special matter submitted to it. Even if, for a time, very few questions were, in fact, submitted to it, its very existence would be a type and pledge of an institution which the community of States must inevitably hereafter develop, and must facilitate the way to its formation. Desirability of a permanent Court. SECTION IV. OF TREATIES, AND ESPECIALLY TREATIES OF PEACE. Importance of THE formally-written conventions by which States ascertain their legal relations to each other, have, naturalforming Inter- ly, considerable influence in determining not only those relations, but also their moral relations. A Treaty, testifying, as it does in the most explicit manner, the national Law. |