representatives of Russia and Japan met in the United States and concluded a treaty of peace at Portsmouth, N. H., September 5, 1905.

COMMISSIONS OF INQUIRY.

84. The Hague Conference of 1899 provided for commissions of inquiry to facilitate the solution of disputes by elucidating the facts by means of an impartial and conscientious investigation in cases of differences of an international nature involving neither honor nor vital interests and arising from difference of opinion on points of fact.

The provisions of the First Hague Conference were elaborated by the Second Hague Conference, and the procedure was more fully prescribed. The six articles of the First Hague Convention of 1899 were superseded by twenty-eight in the Second Hague Convention of 1907. The commission of inquiry is constituted by agreement of the parties at variance; but its report is to be limited to a statement of facts and is not in the character of an award.

The International Commission of Inquiry into the North Sea Incident (Dogger Bank Affair), constituted by agreement between Great Britain and Russia, was made up of five naval officers, one each from the British, Russian, French, and American navies, and a fifth chosen by the four. By the declaration of reference, signed at St. Petersburg, November 25, 1904, "the Commission shall inquire into and report on all the circumstances relative to the North Sea incident, and particularly on the question as to where the responsibility lies, and the degree of blame attaching to the subjects of the two high contracting parties, or to the subjects of other countries in the event of their responsibility being established by the inquiry." The Commission met in Paris on January 9, 1905, and rendered its report February 25, 1905. The Commission inquired into the location of responsibility and degree of blame in the firing by the Russian fleet upon the British trawlers in the North Sea. In article XI of the report "the majority of the commissioners express the opinion on this subject that the responsibil5 Id. title III.

ity for this action and the results of the fire to which the fishing fleet was exposed are to be attributed to Admiral Rojdestvensky." The North Sea incident was closed by the payment of £65,000 by Russia to Great Britain on March 9, 1905, as indemnity and compensation to the British fishermen. Thus at a period of strained international relations the value of this provision for a commission of inquiry was established.

ARBITRATION.

85. "International arbitration has for its object the settlement of disputes between states by judges of their own choice and on the basis of respect for law. "Recourse to arbitration implies an engagement to submit in good faith to the award."?

Historical.

(a) The Greeks seem to have been accustomed to the idea of arbitration in cases relating to commerce, boundaries, and other territorial questions. Rome preferred to act as arbitrator among subject peoples. With the growth of the power of the church in the Middle Ages, the high church officials were often called upon to act as arbitrators; but from the fourteenth to the nineteenth century arbitrations became less frequent, and the idea had little place in the political thinking of the days of Napoleon.

Among the Greeks the decision of the arbitrators carried weight, sometimes because coming from the Amphictyonic Council, sometimes because rendered by a tribunal upon which the disputants had agreed. The decision by Rome carried weight, because Rome possessed the power to enforce her decision. The decision by an authority of the church of the Middle Ages carried the weight of the authority which claimed to be highest in the world, and the dread of excommunication often deterred a dissatisfied party from questioning the award. In the centuries following the Middle Ages, with the growth of the idea of the equality and sovereignty of states, the idea

6 See Foreign Relations U. S. 1904, pp. 342, 796; Id. 1905, p. 473; British Parliamentary Papers, Russia No. 2 (1905); Id. No. 3 (1905). 7 Convention for Pacific Settlement of International Disputes, The Hague, 1907, art. XXXVII, Appendix, p. 524.

of arbitration among states naturally received little consideration, and those who proposed it were long regarded as theorists.

In the nineteenth century the resort to arbitration as a means of settling international differences seems at first to have been a matter of convenience or of expediency. Gradually the value of such a practice seems to have been recognized. During the nineteenth century provision for arbitration was more and more frequent in treaty stipulation. In the treaty of Guadalupe Hidalgo of 1848 between the United States and Mexico an article contains an agreement for arbitration "with respect to the interpretation of any stipulation of this treaty, or with respect to any other particular concerning the political or commercial relations of the two nations." With the increasing cost of war and the greater risks, it has secured support as a policy, and it was formally proposed as a subject for discussion for the First Peace Conference at The Hague, 1899, "with the object of preventing armed conflicts between nations." The results of this discussion of the subject of international arbitration at The Hague in 1899 have been far reaching and the progress of the movement for international arbitration has been very great.

8 "Article XXI. If unhappily any disagreement should hereafter arise between the governments of the two republics, whether with respect to the interpretation of any stipulation in this treaty, or with respect to any other particular concerning the political or commercial relations of the two nations, the said governments, in the name of those nations, do promise to each other, that they will endeavor, in the most sincere and earnest manner, to settle the differences so arising, and to preserve the state of peace and friendship in which the two countries are now placing themselves; using, for this end, mutual representations and pacific negotiations. And if, by these means, they should not be enabled to come to an agreement, a resort shall not, on this account, be had to reprisals, aggression or hostility of any kind, by the one republic against the other, until the government of that which deems itself aggrieved shall have maturely considered, in the spirit of peace and good neighborship, whether it would not be better that such difference should be settled by the arbitration of commissioners appointed on each side, or by that of a friendly nation. And should such course be proposed by either party, it shall be acceded to by the other, unless deemed by it altogether incompatible with the nature of the difference, or the circumstances of the case."

Convention of 1907.

(b) The forty-three articles especially relating to international arbitration in the Hague Convention for the Pacific Settlement of International Disputes of 1899 were elaborated and expanded to fifty-four in the corresponding Hague Convention of 1907. The aim of this convention, which replaces that of 1899, is to make arbitration as widely applicable as possible.

It is recognized by this Convention that arbitration is particularly applicable to international questions of a legal nature, especially to differences arising in regard to the interpretation of treaties. Its scope is made comprehensive, and powers may by special agreements make arbitration compulsory for any or all cases.

A Permanent Court to sit at The Hague, competent for all cases, is established. Each contracting power is entitled to select four persons "of known competency in questions of international law" as members of the court. Two or more powers may select "in common one or more members." Contracting powers wishing to have recourse to the court may agree upon the arbitrators, or, failing this, each party may appoint two arbitrators, and these may together agree upon an umpire. If they fail to agree, the two powers may ask a third power to name an umpire, or each power may select a power to represent it in the choice of an umpire. If within two months these powers cannot agree, then each power names two candidates, and which shall serve as umpire is determined by lot.

The members of the tribunal thus established enjoy diplomatic immunities.

The procedure, unless other rules have been agreed upon, is to clearly define the controversy and other necessary details in a "compromis." This compromis, if made by mutual agreement, is signed by the parties. If the parties wish, the Permanent Court may settle the compromis. If an agreement upon a compromis cannot be reached by the parties, one of them may request the court to formulate the compromis in cases provided for by treaty. The procedure generally consists of pleadings, or the presentation of the cases, counter cases, and replies, and of discussions, or the oral development of the arguments be

fore the tribunal. Provision is made for the utmost freedom in obtaining the most adequate information upon the case. "The tribunal considers its decisions in private and the proceedings remain secret." A majority decides.

Arbitration by Summary Procedure.

(c) A new provision is made in the Convention of 1907 for arbitration by summary procedure. Under this system, in disputes admitting this method, each disputant chooses one arbitrator, these agree upon an umpire, or, failing to agree, each party names two candidates, not being members appointed by them or their nationals, and from these an umpire is chosen by lot. Each party is represented before the tribunal by an agent. Proceedings are in writing. Each party is entitled to ask questions and to call experts. The tribunal may demand oral explanations from agents, experts, or witnesses. The umpire presides over the tribunal, and decision is by majority of votes.9

By article XL (article XIX of the Convention of 1899) provision is made for special treaties between states extending compulsory arbitration to all cases which they may consider possible. The United States has concluded a large number of treaties since 1907, including the following articles:

"Article I. Differences which may arise of a legal nature or relating to the interpretation of treaties existing between the two contracting parties, and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague by the Convention of July 29, 1899, provided, nevertheless, that they do not affect the vital interests, the independence, or the honor of the two contracting states, and do not concern the interests of third parties.

"Article II. In each individual case the high contracting parties, before appealing to the Permanent Court of Arbitration, shall conclude special agreement defining clearly the matter in dispute, the scope of the powers of the arbitrators, and the periods to be fixed for the formation of the arbitral tribunal,

› Convention for Pacific Settlement of International Disputes, The Hague, 1907, title IV, §§ XXXVII-XC.