Arbitration treaty

“ The permanent establishment of a general court of arbitration to be composed of representative jurists of the principal States and to take cognizance of all international disputes that cannot be settled by ordinary diplomatic negotiation, is no doubt the ideal to be aimed at. If this cannot be reached at once the conclusion of an arbitration treaty between the United States and Great Britain may be regarded as a great step in that direction. ”

“ I have heard of only one objection that makes the slightest pretense to statesmanship, and it need only be stated to cover its supporters with confusion. It is that we are a young and aspiring people, and that a binding arbitration treaty would hamper us in our freedom of action! ”

“ What else is it that a rule that, however exciting the dispute, we shall take time to consider before we strike — hoping that, if we do take time to consider, both parties may find it wisest not to strike at all? If there is any fault to be found with this provision, it may be not because it restrains too much, but because it restrains to little.
“The treaty does not go far enough,” says another critic. “Its provisions are insufficient to secure the adjustment of the most serious disputes.” ”

“ To illustrate—if our government entered into such a treaty with the German Empire, and afterwards into a similar treaty with France, we would select the same arbitrators under the treaty with France that we had named in carrying out the provisions of the treaty with Germany, and in any subsequent arbitration treaty with any other nation, the same men would again be named as our arbitrators. There is little doubt but what all other nations would pursue a similar course. ”

“ The Arbitration Treaty, which has just been signed, crowns the beneficent efforts that have been made in that direction. All man kind must be congratulated upon this great achievement. It is an onward stride of human civilization which will ever stand first in rank among the glories of the closing nineteenth century. ”

“ The Senate, by thus amending and at last defeating the arbitration treaty, has virtually changed the proud proclamation of 1890 so that it now may read, “The President be and is hereby requested to invite negotiations with foreign governments, to the end that such differences or disputes arising between them and the United States may be referred to arbitration as the Senate may consider of sufficiently little consequence. As to more important matters, we are not sure whether the most civilized method of settlement will suit us best.” ”

“ No self-respecting power would, of course, consent to submit to arbitration a question of life or death. This would be as if two men were to agree to draw lots as to which should commit suicide in order to avoid fighting a duel. On the other hand, if the exception be taken to exclude all questions which, when decided adversely to a state, impose a restraint on its freedom of action, then the exception would seem to exclude such a question as the true interpretation of an ambiguous treaty, a subject with which experience shows international arbitration is well fitted to deal. ”

“ While under this treaty the adjustment of pecuniary claims may become subject to the verdict of an umpire to be agreed upon by the two parties, or, if they fail to agree, to be designated by the King of Sweden, controversies touching territorial claims shall go before a tribunal composed of three American jurists to be named by the President, and three English jurists to be named by the Queen, whose award by a majority of not less than five to one shall be final. A two-thirds majority of the American judges would therefore be required for a decision against the United States. ”

“ The questions hitherto settled by arbitration have for the most part been of minor importance, in which "national honour" has not been at stake, and the bestial impulse to tear and bruise, which so many light-headed persons mistake for patriotism, has not been aroused. The London "Spectator" tells us that if the United States should ever repeat the Mason and Slidell incident, or should feel insulted by the speech of some British prime minister, there would be war, no matter how loudly the lawyers in both countries might appeal to the Arbitration Treaty. ”

“ The first thing to be accomplished is the conclusion of an arbitration treaty covering all kinds of differences, and thus recognising that no quarrels can possibly arise between the two nations which would not be capable of amicable composition, and that under no circumstances will any less pacific method of settlement be desired on either side. ”

“ The wide general convenience being so clearly apparent that would be secured by confiding the solution of differences to be submitted to arbitration to the jurisdiction of a tribunal of so high a character as that of the Arbitration Court at The Hague, and, also, that the American Nations, not now signatory to the Convention creating that beneficent institution, can become adherents thereto by virtue of an accepted and recognized right ”

“ Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if established would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration. ”

“ With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Contracting Powers undertake to maintain the Permanent Court of Arbitration, as established by the First Peace Conference, accessible at all times, and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present convention. ”

“ For a hundred years we have been at peace. For that century we have had a frontier between us and Canada four thousand miles long which is entirely undefended by forts or navies. We have had issue after issue between the two peoples that because of their nature might have led to war. But we have settled them by negotiation, or, when that has failed, by arbitration, until now it is not too much to say that the “habit” of arbitration between us is so fixed that a treaty to secure such a settlement in future issues would not make it more certain than it is. ”

“ But unless the Senate can irrefutably prove that, contrary to the universal belief, this treaty will make for wrong instead of justice, for international discord and broil instead of peace, it would, by rejecting or even unnecessarily delaying the ratification of this treaty, present to the world a pitiable display of American statesmanship and American civilization. ”

“ It has again and again proved exceedingly difficult to get Congress to appropriate money to pay some obligation which under treaty or arbitration or the like has been declared to be owing by us to the citizens of some foreign nation. Often we have announced our intention to make sweeping arbitration treaties or agreements at the very time when by our conduct we were showing that in actual fact we had not the slightest intention of applying them with the sweeping universality we promised. ”

“ And now reports are coming from Washington that the Senate of the United States hesitates to approve this treaty, and that there is grave danger of its total defeat. This is startling news.
Those who attempt to defeat or even to delay the ratification of a treaty of such transcendent significance assume as responsibility so momentous that they must be supposed to have the most convincing and insuperable reasons for their course. So far such reasons have been expressed only in conversations more or less private which have been made public ”

“ In accordance with said stipulation, Great Britain did pay it to the United States, and the purpose of payment under the treaty inhering in the receipt of the money constitutes the foundation of appellant's claim. The intervention of the board of arbitration and its award as a means of ascertaining the liability of Great Britain does not change the fact that the final recognition and payment of the claim grows out of the stipulation of the treaty. ”

“ Great Britain yielded to the demands of the United States Government for arbitration, and in February, 1897, an agreement was reached and a treaty of arbitration was duly signed and Chief Justice Fuller and Associate Justice Brewer were appointed arbitrators on the part of Venezuela ”

“ The high contracting parties pledge themselves to submit to arbitration all the controversies which have thus far been pending, and those which, while the present treaty is in force, may arise between them, whatever may be their nature and causes provided that it has been found impossible to settle them by direct negotiation. ”

“ The protocols and the judgment were drawn up in French accompanied by an official English translation.
Limits of International Arbitration.—Of the numerous treaties for general arbitration which have been made during the 20th century that between Great Britain and France (1903) is a type. This treaty contains reservations of all questions involving the vital interests, the independence or the honour of the contracting parties. The language of the reservation is open to more interpretations than one. ”

“ Resolved, That any withdrawal from a treaty recognizing Arbitration, or any refusal to abide the judgment of the accepted tribunal, or any interposition of technicalities to limit the proceedings, is to this extent a disparagement of the tribunal as a substitute for war, and therefore hostile to civilization. ”

“ Whereas Arbitration has been formally recognized as a substitute for war in the determination of differences between nations, being especially recommended by the Congress of Paris, where were assembled the representatives of England, France, Russia, Prussia, Austria, Sardinia, and Turkey, and afterward adopted by the United States in formal treaty with Great Britain for the determination of differences arising from depredations of British cruisers, and also from opposing claims with regard to the San Juan boundary ”

“ When disagreeing nations are aroused to anger by the excitement and the prejudice of the people on account of real or imaginary wrong, it is a poor time indeed to attempt to agree upon a fair method of settlement, or to exercise that calm deliberation which should be invoked in the selection of the arbitrators.
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The treaty of arbitration should be general and apply to all disputes. It should be negotiated in time of profound peace, and not with reference to any particular controversy. Its judges should be selected in time of peace and their terms of office should be permanent. ”

“ Under reservation of the second paragraph of Article 1, because the delegation considers that arbitration may always be refused as a matter of right if the fundamental law of the debtor nation, prior to the contract which has given rise to the doubts or disputes, or this contract itself, has stipulated that such doubts or disputes shall be settled by the courts of the said nation. ”

“ This agreement was modified in 1911 to fit the changed conditions in China and a new article was added which provided (p. 202) that "should either high contracting party conclude a treaty of general arbitration with a third power, it is agreed that nothing in this agreement shall entail upon such contracting party an obligation to go to war with the power with whom such treaty of arbitration is in force." ”

“ The United States promoted the cause of genuine International Arbitration by promptly and emphatically rejecting an insidious proposal for a spurious one. It taught those who deliberately prefer War to Arbitration, and, when beaten at it, seek then to get the benefit of a second remedy, that honest Arbitration must come before War, to avert its horrors, not after War, to evade its penalties. ”

“ Indeed it may be maintained that much more important than the dispute itself is the question whether it will or will not be settled by arbitration. Great Britain has already declared that if the dispute cannot be settled by means of diplomacy, she will request arbitration. The eyes of the whole world are directed upon the United States in order to find out her resolution. Throughout her history, the United States has been a champion of arbitration, and no other State has so frequently offered to go, or consented to submit, to arbitration. ”

“ If nations can agree in solemn provisions of International Law to establish War as Arbiter of Justice, they can also agree to abolish this arbitrament, and to establish peaceful substitutes,—precisely as similar substitutes are established by Municipal Law to determine controversies among individuals. A system of Arbitration may be instituted, or a Congress of Nations, charged with the high duty of organizing an Ultimate Tribunal, instead of "these battles." ”

“ Personally it is not my opinion that this Government lacks the power to enter into general treaties of arbitration, but if I am in error, and if this Government has no power to enter into such general treaties, then it seems to me that it is better not to attempt to make them, rather than to make the attempt in such shape that they will accomplish literally nothing whatever when made. ”

“ And when parties commit to arbitrate contractual disputes, it is a mainstay of the Act's substantive law that attacks on the validity of the contract, as distinct from attacks on the validity of the arbitration clause itself, are to be resolved "by the arbitrator in the first instance, not by a federal or state court." ”