Chapter V Remarks of Paris. all others regarded as suitable for arbitration. They are judicial questions, and such as arise from the interpretation or application of existing treaties. A determination by judges can, properly speaking, only be had regarding a judicial question, or a question arising upon a particular document. Conflicts of interest and political differences are not, strictly speaking, proper subjects for arbitration in the restricted sense of the term. The distinction here made between the two kinds of arbitration, first, judicial, second, general, is by no means unimportant, and a disregard of this difference has frequently led to disappointment, as well as to the casting of a certain amount of discredit upon the entire principle involved. In his final argument before the Arbitration Tribunal upon the Venezuelan boundary question, ex-President Harrison of the United States, emphasizing this point, uses this language (p. 2982): — "MR. PRESIDENT: It has been to me a matter of Harrison special interest that the President of this tribunal, after his designation by these two contending nations for that high place which assigned to him the duty of participating in practical arbitration between nations, was called by his great Sovereign to take part in a Convention which I believe will be counted. to be one of the greatest assemblies of the nations. that the world has yet seen, not only in the personnel of those who are gathered together, but in the wide and widening effect which its resolutions are to have upon the intercourse between nations in the centuries to come. There was nothing, Mr. President, in your Chapter V proceedings at The Hague that so much attracted my approbation and interest, as the proposition to constitute a permanent court of arbitration. It seems to me that if this process of settling international differences is to commend itself to the nations, it can only hope to set up for the trial of such questions an absolutely impartial judicial tribunal. If conventions, if accommodation, and if the rule of 'give and take' are to be used, then let the diplomatists settle the question; but when these have failed in their work, and the question between two great nations is submitted for judgment, it seems to me necessarily to imply the introduction of a judicial element into the controversy." It will readily be seen that almost everything Importance of depends upon the form of the statement of the question to be submitted. If it is stated as proposition of law, the decision must necessarily be without reference to the interests of either or any party. If, on the other hand, it is stated as a question of conflicting interests- political, territorial, commercial, or otherwise - compromise accommodation, the rule to give and take, as President Harrison puts it, is not only permissible but almost indispensable. The Venezuelan Tribunal, judging from its award, seems to have regarded the question submitted to it as one of the latter class; whereas the Behring Sea Tribunal of 1889 undoubtedly regarded its task as strictly judicial. In both cases a 1 It will be useful to compare the statement of the questions submitted for arbitration as stated in the treaties covering both these the form of statement of the question. Chapter V of the form of the decision seems to have followed logically from Importance the method of stating the question, and the lesson statement of of these two recent and very important cases is not the question. likely to be lost upon the diplomatists or arbitrators instances. With regard to the Behring Sea controversy, the language of the treaty is as follows: ARTICLE VI. In deciding the matters submitted to the Arbitrators, it is agreed that the following five points shall be submitted to them, in order that their award shall embrace a distinct decision upon each of said five points, to wit: 1. What exclusive jurisdiction in the sea now known as Behring's Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States? 2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain? 3. Was the body of water now known as the Behring's Sea included in the phrase " Pacific Ocean," as used in the treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Behring's Sea were held and exclusively exercised by Russia after said Treaty? 4. Did not all the rights of Russia as to jurisdiction, and as to the seal fisheries in Behring's Sea east of the water boundary, in the Treaty between the United States and Russia of March 30, 1867, pass unimpaired to the United States under that Treaty? 5. Has the United States any right, and if so, what right of protection or property in the fur-seals frequenting the islands of the United States in Behring Sea when such seals are found outside the ordinary three-mile limit? With reference to the boundary of Venezuela and British Guiana the treaty of February 2, 1891, provides : — ARTICLE 1. An arbitral tribunal shall be immediately appointed to determine the boundary line between the Colony of British Guiana and the United States of Venezuela; and ARTICLE 4. In deciding all matters submitted the arbitrators shall ascertain all facts by them deemed necessary to a decision of the controversy, and shall be governed by the following rules, which are agreed upon by the Contracting Parties as rules to be taken as applicable to the case and by such principles of international law not inconsistent therewith, as the arbitrators shall determine to be appli cable to the case. RULES A. Adverse holding or transcription during a period of fifty years shall make a good title. The arbitrators may deem exclusive politi of the future. See upon the entire subject, Heffter Chapter V (Ed. Geffken), § 109, and the full and admirable discussion in Calvo, Droit International, sections 1703 1806. of arbitration ARTICLE 17. An agreement of arbitration may be Agreements made with reference to disputes already existing or in general. those which may hereafter arise. It may relate to every kind of controversy or solely to controversies of a particular character. This Article does not impose any special obligation upon the signatory powers, but it indicates in a useful manner a possible extension and further development of this convention. An agreement to submit a controversy already existing to arbitration is recognized as the ordinary method of procedure. An agreement to submit future controversies to arbitration now exists in an obligatory form for all the members of the International Postal Union so far as postal questions are concerned, and several treaties. having this particular object have been concluded between various Powers, notably the treaty between Holland and Portugal of July 5, 1894, and the cal control of the district, as well as actual settlement thereof, sufficient to constitute adverse holding or to take title by transcription. B. The arbitrators may recognize and give effect to rights and claims arising on any other ground whatever, valid according to international law and of any principles of international law which the arbitrators may deem to be applicable to the case and which are not in contravention of the foregoing rules. C. In determining the boundary line of territory of one party found by the arbitrators to have been at the date of this treaty in the occupation of the subjects or citizens of the other party such effect shall be given to such occupation as reason, justice, the principles of international law and the equities of the case shall in the opinion of the tribunal require. Q Chapter V Obligation to submit to the award. Further agreements to be made. treaty of arbitration between Italy and the Argentine Republic of July 23, 1898. Among the projects for similar treaties the most notable are the proposition for such a treaty between Switzerland and the United States, dated July 24, 1893, the arbitration treaty elaborated by the Pan-American Conference, October 2, 1889, and the proposed Treaty between Great Britain and the United States, dated November 12, 1896. The The Roumanian Government made the following declaration with reference to this Article: Royal Government of Roumania declares that it cannot adhere to Article 17 except upon the express reservation entered upon the minutes, that it has decided not to accept, in any case, international arbitration for controversies or differences anterior to the conclusion of the present Convention." ARTICLE 18. The agreement of arbitration implies the obligation to submit in good faith to the decision. of the arbitral tribunal. Without this implied agreement arbitration would rapidly sink into a purely academic institution, and the force of intelligent and civilized public opinion is relied upon as a sufficient sanction to enforce this as well as other obligations imposed by this Convention. ARTICLE 19. Independently of existing general or special treaties imposing the obligation to have recourse to arbitration on the part of any of the Signatory Powers, these Powers reserve to themselves the right to conclude, either before the rati |