Arbitration, Mediation, and Conciliation
Arbitration, Mediation, and Conciliation
Calvin D. Davis
American statesmen learned early that the discussions of diplomats and the conclusion of treaties are not always sufficient to settle international disputes peacefully. Their search for other methods of peaceful settlement began during the administration of George Washington and has been a continuing concern in the conduct of the foreign relations of the Republic since that time. In fact, it was a major aspect of American foreign policy before World War I and was of profound influence upon American thinking about international organization before that war.
HISTORICAL BACKGROUND OF THE ARBITRATION CONCEPT
International arbitration may be defined as the settlement of a difference between states through the decision of one or more individuals or a tribunal or court chosen by the parties to the dispute. An arbitrator may be the chief of state of a nation not concerned with the dispute; an ambassador, minister, or other official; or even a private individual. When a monarch or a president is an arbitrator he usually does not act personally; indeed, he delegates most responsibilities to the appropriate legal authorities of his government. When the parties to an arbitration decide to establish a tribunal, they may choose judges from their own nationals and then agree upon another individual to act as umpire. Sometimes they ask the head of another government to choose an umpire or leave the choice of umpire to the arbitrators already appointed. In several nineteenth-century cases no individuals were designated as umpires. Arbitrations may be concerned with questions of international law or facts. When arbitrations are primarily concerned with facts, as in pecuniary claims or boundary cases, the group of arbitrators is generally called a commission, but no precise distinction can be drawn between commissions and tribunals. An arbitral decision is called an award, and it may be set aside if there are reasons to believe that it was not given in good faith or was not in accord with international law or the preliminary special agreement, usually called a compromis, concluded by the parties to the arbitration.
Historians and anthropologists have discovered arbitral customs and institutions in many cultures. The city-states of ancient Greece developed fairly elaborate arbitral procedure; on occasion they organized groups of arbitrators similar to modern international tribunals. During the Middle Ages, popes, princes, jurisconsults, and even city governments acted as arbitrators. Arbitration was less important during late medieval and early modern times, but it never disappeared altogether from international relations. Occasionally, European governments made use of it when trying to resolve American questions. In fact, some aspects of the first problem in the diplomatic history of the European conquest of the Western Hemisphere—the location of the dividing line between Spanish and Portuguese interests—suggest later arbitral practices. When Portugal challenged Spain's rights in the lands Columbus had discovered, King Ferdinand asked Pope Alexander VI to confirm the Spanish title. The pontiff obliged, issuing in 1493 a series of bulls in which he drew a line between the imperial claims of the two countries. The Portuguese protested the papal decision, and in 1494, Spain and Portugal, in the Treaty of Tordesillas, moved the line westward and agreed that a commission of surveyors and mariners should locate the line. While the two governments never set up the commission, the provisions of the treaty calling for such a body are evidence that commissions were of some importance in international relations at that time.
Commissions appeared occasionally in connection with England's colonial problems during the seventeenth and eighteenth centuries. The Treaty of Westminster, which Oliver Cromwell concluded with the Dutch at the end of the First Anglo-Dutch War in 1654, referred claims concerning the East Indies and the Americas to a commission. Apparently this commission met but failed to arrive at a decision. England and France in 1686 referred disputes over American matters to a commission, but it disbanded after outbreak of the War of the League of Augsburg. The Anglo-French treaties of Ryswick in 1697 and Utrecht in 1713 and the Treaty of Seville concluded by Great Britain, France, and Spain in 1729 provided for commissions to deal with American problems. All failed. After the War of the Austrian Succession, Britain and France established a commission for American questions. Again, failure. Certainly, the performances of commissions during the colonial era should have encouraged no one to believe that arbitration would be of large importance in later American history, yet that series of failures kept the idea alive. After the United States won independence, there were many problems that American and British diplomats found difficult to settle through negotiation, and they turned to commissions almost as a matter of course.
JAY'S TREATY AND THE TREATY OF GHENT
The United States and Great Britain for the first time agreed to use arbitration in their relations with each other when they concluded their first commercial treaty, usually called Jay's Treaty, in 1794. That treaty provided for three joint commissions to deal with disputes over boundaries, compensation due British creditors for obligations incurred by Americans before the Revolution, and questions arising from Britain's treatment of American shipping in the war with revolutionary France then in progress. The commission for maritime matters decided several questions, and the boundary commission also attained some success. It identified the Schoodiac River as the St. Croix, the river which was supposed to be part of the boundary between Maine and British territory according to the treaty of independence. But the debt commission broke up in an angry exchange, and it was necessary for the two governments to resume negotiations. According to a treaty concluded in 1802, the United States paid Britain a lump sum and the controversy came to an end.
The Treaty of Ghent, signed 24 December 1814, like Jay's Treaty, provided for three joint commissions. Only one commission completed its assignment—determination of the ownership of islands in the Passamaquoddy Bay. One commission tried to determine boundaries between British territory and the United States from the St. Lawrence River to the Lake of the Woods; it agreed upon a boundary through the Great Lakes but failed to determine the line from Lake Superior to the Lake of the Woods. The third commission was supposed to decide the boundary from the St. Croix to the St. Lawrence, but it failed to reach accord. The two governments thereupon referred the dispute to William I of the Netherlands. That monarch failed to find a clear basis for a decision but in 1831 made an award anyway, giving the United States and Britain what he believed to be equitable shares of a wilderness. The United States refused to accept this award, protesting that the king had not acted in accord with the agreement referring the controversy to him. While arbitration had failed in this instance, the case was of considerable importance, for it clearly established the principle that arbitrators should abide by the terms of a compromis or other preliminary agreements. (The U.S. government probably erred in refusing to accept the award, for the Webster-Ashburton Treaty in 1842 gave the United States less territory than it would have received according to the king's decision.)
The United States and Britain meanwhile had one other arbitration in connection with the Treaty of Ghent. The two powers were supposed to restore all property, both public and private, that they had seized from each other during the War of 1812. The treaty specifically mentioned slaves, but the British failed to return all American slaves under their jurisdiction at the close of hostilities. After many protests from Washington, British leaders agreed that an arbitrator should deal with the matter, and the two governments referred their dispute to Alexander I of Russia. The czar decided that Britain had failed to meet its obligations and should pay an indemnity. Upon his recommendation the United States and Britain concluded a convention setting up a commission to decide the amount due the United States. After elaborate proceedings, the commissioners decided that the indemnity should be $1,204,960, and, in a convention concluded 13 November 1826, the British government accepted this decision.
ANGLO-AMERICAN RELATIONS AND THE GENEVA TRIBUNAL
During the last half of the nineteenth century, the United States and Britain both made increasing use of arbitration. The United States had arbitrations with Brazil, Chile, Colombia, Costa Rica, Ecuador, Haiti, Mexico, Paraguay, Peru, Denmark, France, Portugal, and Spain. Britain, too, entered into many arbitrations with Latin American and European states, but the two English-speaking countries continued to have more arbitrations with each other than with other powers. Several minor but difficult Anglo-American controversies were settled by arbitration during the 1850s and 1860s; after the Civil War, arbitration became a major feature of relations between Washington and London.
The nineteenth century's most important arbitral decisions concerned Anglo-American controversies arising from the Civil War. British shipbuilders had built warships for the Confederacy, a practice stopped by London only after vehement protests from Washington. But British authorities acted too late to prevent the sailing of several ships, among them the Alabama, the most notorious commerce raider of the war. When the Alabama and its sister ships began destroying Union merchant ships, many American shipowners transferred their ships to foreign registry, Britain receiving the largest number of registrations. The American merchant marine almost disappeared. As the war closed, influential Americans fulminated against British misdeeds. Senator Charles Sumner of Massachusetts charged that Britain was really responsible for prolonging the war for two years and demanded a large indemnity. Britain, too, had grievances, for British shipping had sustained considerable damages at the hands of the Union. As charges and countercharges were exchanged by intemperate speakers on both sides of the Atlantic, diplomats found negotiation of a settlement extremely difficult. Finally, in a treaty signed at Washington on 8 May 1871, the two governments agreed to arbitration of their Civil War claims and two other difficult matters, the boundary through the San Juan waterway between Vancouver Island and the United States and the compensation due Britain for recent concessions to the United States in the fisheries off Newfoundland and Canada.
The two governments used all the best-known forms of arbitration to resolve their four disputes. They made their most elaborate preparations for claims concerning the Alabama and the other commerce raiders, establishing a tribunal of five members in Geneva, Switzerland. Each of the two parties appointed an arbitrator, as did Brazil, Italy, and Switzerland. Presenting its case, the United States demanded payment of indirect claims, that is, damages sustained as a result of the prolonging of the war through actions of the raiders. The tribunal denied this demand, but in a decision announced 14 September 1872, it awarded the United States $15.5 million for actual destruction of ships and cargoes. Other American maritime claims against Britain and British claims against the United States were referred to a commission of three members, appointed by the United States, Britain, and Spain. Meeting in Washington, the commission soon decided against American claims but, in a decision announced 25 September 1873, awarded the British $1,929,819. Meanwhile, the United States and Britain had referred the San Juan waterway boundary dispute to German Emperor William I, who announced his decision on 21 October 1872, an award essentially in accord with American contentions. A commission of three members—an American, a Briton, and a Belgian—handled the fisheries case in sessions at Halifax. The commission announced on 23 November 1877 that the United States should pay Britain $5.5 million.
Of the four arbitrations, that of the Alabama claims was by far the most important. No other arbitration has so stimulated imaginations. While it is no doubt true, as Woodrow Wilson wrote, that the award "ended, not a controversy but a judicial process at the end of a controversy," many individuals convinced themselves that in this instance arbitration may have been a substitute for war. Long before the Civil War, arbitration had attracted the attention of people anxious to find ways of ridding mankind of the curse of war, and to such people the decisions of the Geneva tribunal seemed proof of what arbitration could accomplish. The spokesmen and journals of the American Peace Society, the Universal Peace Union, and many other peace organizations found in the Geneva arbitration topics for countless lectures and articles. Even before the Geneva tribunal announced its award, there were earnest recommendations that Britain and America negotiate treaties between themselves and with other nations in which they would recognize an obligation to resort to arbitration rather than war. Charles Sumner, on 31 May 1872, introduced a resolution in the Senate declaring that "in the determination of international differences Arbitration should become a substitute for war in reality as well as in name, and therefore coextensive with war in jurisdiction, so that any question or grievance which might be the occasion of war or of misunderstanding between nations should be considered by this tribunal."
A British peace leader, Henry Richard, on 8 July 1873 secured passage of a similar resolution in the House of Commons, and Sumner on 1 December of that year introduced another resolution urging arbitration in the Senate. While the two governments took no actions in response to these resolutions, the idea of treaties of obligatory arbitration continued to gain adherents. American and British peace advocates were probably unaware that Latin American governments almost as a matter of course included promises of arbitration in many of their treaties, and most Americans had probably forgotten that the Treaty of Guadalupe Hidalgo (1848), which ended the Mexican War, contained an article by which the United States and Mexico agreed to arbitration of differences in connection with the treaty. The peace movement in the United States and Britain gave little attention to developments in Latin America; it focused attention upon Anglo-American relations. If the United States and Britain were to conclude a permanent arbitration treaty, they would set an example for the rest of the world, peace leaders reasoned.
THE HAGUE PEACE CONFERENCES
It was not until the 1890s that there came many new opportunities to advance the ideas of arbitration enthusiasts. During that decade, marked as it was by naval building, imperial rivalries, and war, arbitration nonetheless seemed to emerge as a major feature of international relations, and the U.S. government was at the forefront of this development. As the period began, President Benjamin Harrison's secretary of state, James G. Blaine, brought together in Washington during late 1889 and early 1890 the First International Conference of American States. This conference recommended a number of proposals to promote hemispheric unity, among them a plan by which the American republics would have referred to arbitration all disputes that diplomacy could not settle, excepting questions of independence. Blaine called this agreement "the first and great fruit" of the conference, but he rejoiced too soon. No government ratified the agreement.
Even before it was apparent that the Pan-American arbitral plan would fail, the United States was concluding an agreement with Britain for arbitration of an acrimonious dispute. Endeavoring to stop the indiscriminate killing of fur seals in the Bering Sea by both British subjects and American citizens, State Department officials grasped at mistaken translations and interpretations of Russian documents which seemed to prove that sovereignty over the sea had passed to the United States with the acquisition of Alaska. The Coast Guard seized Canadian ships and arrested their crews. Britain protested vigorously. Blaine's successor, John Watson Foster, negotiated an agreement by which the two powers established a tribunal in Paris to hear the case. In an award announced in 1895 the tribunal upheld Britain's contention that the Bering Sea was part of the high seas and thus not subject to the police actions of any government in time of peace. It became necessary for the State Department to resume negotiations to save the seals.
The Bering Sea tribunal had barely completed its labors when a serious Anglo-American quarrel arose over arbitration in another matter. The United States had long urged arbitration of the border dispute between Venezuela and British Guiana, but the British government, fearing that such an arbitration would encourage demands for changes in boundaries of other British colonies, repeatedly rejected American suggestions. Late in 1895, President Grover Cleveland's new secretary of state, Richard Olney, convinced himself and the president that Britain was very possibly claiming territory without real justification and was, therefore, about to violate the Monroe Doctrine. The secretary sent stern messages to London. Lord Salisbury, who was both prime minister and foreign minister, responded with a statement that sounded much like a schoolmaster explaining a few simple facts to a student with little intelligence. The Monroe Doctrine was not "public law," as Olney claimed, it was simply a statement made by a distinguished American statesman. Salisbury was accurate enough, but Americans insisted that the Monroe Doctrine had a larger meaning that other nations should recognize. Cleveland sent Congress a special message that resounded with appeals to honor and patriotic duty. In both the United States and Britain there were calls for war. After a few days calmer counsel prevailed. The British government decided that arbitration, after all, was the best way out of the crisis and concluded a treaty with Venezuela by which the two countries established a tribunal in Paris to determine the boundary. To the irritation of many Americans, the tribunal, in an award announced in 1899, largely upheld the British position.
In addition to the proceedings at Paris, the boundary controversy had another important result for arbitration. Shocked by the emotional excesses of the recent crisis, British and American leaders at last yielded to the pleas of peace spokesmen for a treaty of arbitration. Secretary Olney and the British ambassador, Sir Julian Pauncefote, negotiated a treaty according to which their governments were to agree that for a five-year period they would settle territorial and pecuniary claims through arbitration. The treaty made no exception for national honor, but it provided an elaborate procedure for setting up tribunals and handling appeals that should have been adequate safeguards for the interests of both parties. Optimists believed the treaty could be a first step toward a permanent world tribunal. Olney and Pauncefote signed the treaty on 11 January 1897, and Cleveland and his successor, William McKinley, both urged ratification. Unfortunately, partisan politics, dislike for Britain, and fear of a departure from the traditional policy of avoiding entangling alliances influenced many senators. After approving amendments that would have deprived the treaty of any real force, the Senate on 5 May 1897 declined consent for ratification. Great was the disappointment of arbitration enthusiasts, but there soon came another opportunity for their cause.
The Russian foreign ministry, on 24 August 1898, sent a circular note to all governments with diplomatic representation in St. Petersburg. Czar Nicholas II proposed a conference to consider limitation of armaments. The United States was quick to accept, although there was no interest in Washington in limiting or reducing armaments, and some influential people suspected a connection between the Russian proposal and the recent American victory in the war with Spain. When the Russians added improvements in the laws of war and arbitration to the agenda, American officials became more interested. Secretary of State John Hay instructed the American delegates to work for agreement on these subjects, and he told them to present a plan for a permanent international tribunal modeled on the Supreme Court of the United States.
Upon request of Nicholas II, Queen Wilhelmina of the Netherlands provided the conference with a meeting place at The Hague. Representatives of twenty-six governments were present for the opening session on 18 May 1899 at one of the Dutch royal palaces, the House in the Wood. In addition to the delegates, peace workers gathered at The Hague, anxious to encourage the "Peace Conference," as they called it, to make large initiatives for peace. To many people, the term "Peace Conference" soon seemed a misnomer, for the conference spent much of its time discussing war. It failed to agree to any reduction in armies and navies or their budgets but did adopt declarations against poison gas, needlessly cruel bullets, and the throwing of projectiles or explosives from balloons or similar devices. It was more successful in its work with the laws of war. It framed two conventions about this subject, one of which was a codification of the laws of land warfare and the other a convention extending the Geneva Convention of 1864 (popularly known as the Red Cross Convention) to naval warfare. While humanitarians hailed these conventions, another document, the Convention for the Pacific Settlement of International Disputes, was more interesting to peace workers. This convention summarized experience with arbitration, mediation, and commissions of inquiry and made several significant innovations in the application of these methods to the resolution of international differences.
No part of the conference's work required more diplomacy than Title IV of the Pacific Settlement Convention, "On International Arbitration." The American delegates soon discovered that there was little chance for adoption of their plan for a permanent tribunal, and they decided not to press for its acceptance. Instead, they supported a plan offered by Pauncefote, the chairman of the British delegation. The British proposed that each signatory power name two jurists to a list and that parties to an arbitration should choose judges from that list. The Russians also advanced a plan, proposing that five powers be given authority to name one judge each and that these judges should always be ready to act as arbitrators. Both plans called for an administrative bureau at The Hague. The chairman of the U.S. delegation, Andrew D. White, and the delegation secretary, Frederick W. Holls, worked closely with the British and Russians to secure an acceptable compromise. For a time German objections threatened to defeat their efforts; and it required much persuasion before the German government agreed to support a plan believed somewhat weaker than the original British and Russian proposals. The conference then agreed that each signatory power should select "four persons at the most, of known competency in international law, of the highest moral reputation, and disposed to accept the duties of Arbitrator." These people were to be members of a permanent international institution, the Permanent Court of Arbitration. A bureau at The Hague would maintain their names on a list and carry out all administrative responsibilities. Powers wishing to enter into arbitrations could choose arbitrators from the list, but there was no requirement that they do so.
Efforts at incorporating obligatory features into the convention largely failed. The Germans, in particular, opposed obligatory arbitration, and without their support little was possible. The completed convention included, however, a statement that the signatory powers recognized arbitration "as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle," and article 27 declared that the signatory powers would "consider it their duty, if a serious dispute threatens to break out between two or more of them, to remind these latter that the Permanent Court is open to them." This provision, based on a French proposal that Holls had warmly supported, was the subject of serious disagreement within the American delegation. The naval delegate, Captain Alfred T. Mahan, the famed historian of sea power, argued that the article could lead to conflict between the Hague Convention and the Monroe Doctrine. Debate within the delegation ceased only when White read a statement to the conference that in signing the convention the United States was in no way departing from its traditional policies toward Europe or the Americas.
Many of the framers of the Peaceful Settlement Convention were as concerned with good offices and mediation as with arbitration. When a government extends an offer of good offices to powers in controversy or at war, it makes its diplomatic services and facilities available to them. When a power acts as a mediator, it takes an active part in negotiations, acting much as a middleman. In actual practice, it is difficult to distinguish between good offices and mediation, and the First Hague Conference did not make such a distinction, but it did recognize the need to guarantee their benevolent character. Too often such offers had been viewed as unfriendly interventions, sometimes for good reasons. Americans remembered how the imperial French government during the Civil War had been unsympathetic to the Union cause and had, at an inconvenient moment, offered mediation. The Peace Conference sought to prevent such problems in the future by including in the convention a declaration that powers that were strangers to a dispute had the right to offer good offices and mediation even during hostilities and that the exercise of this right could "never be regarded by either of the parties at variance as an unfriendly act." The convention was as careful in its treatment of recipients of offers of good offices and mediation. Article 6 declared that offers of good offices and mediation "have exclusively the character of advice, and never have binding force," while article 7 stated that mediation could not interrupt, delay, or hinder mobilization or other preparations for war.
Article 8 of the mediation section was in a class by itself. The result of a proposal by Holls—other delegates referred to it as La Proposition Holls —it provided for what was called "special mediation." According to its terms, each party to a conflict could choose another power to act in its place. For thirty days the disputing powers would cease all communication about their controversy and let their seconds make an effort at settlement.
In addition to the articles on mediation and arbitration, the conference included provisions in the convention for commissions of inquiry. It was already an accepted practice to promote international conciliation by appointing commissions to ascertain facts. Such commissions were not expected to make recommendations for settlement, but they were expected to make reports that could aid quarreling governments to work out their differences. There was, however, no generally accepted procedure for establishing commissions. Cleveland had appointed a commission to gather evidence during the Venezuelan boundary controversy, and while the commission did much good work, the fact that it was constituted by only one party to the dispute was lost on no one. Obviously, such one-sided arrangements should be avoided in the future. The Hague Convention provided that commissions should be organized according to a procedure similar to that by which arbitral bodies could be constituted from the list of the Permanent Court of Arbitration and that the commissions should confine their activities to the determination of facts. They would present reports to the conflicting powers but those powers would retain full freedom to interpret the findings of the commissions.
During the fifteen years following the Peace Conference of 1899, the Convention for the Pacific Settlement of International Disputes was of considerable importance in international relations, and no country displayed more interest in the convention and the Hague Court than the United States. American statesmen made promotion of the court an important part of foreign policy. Upon the suggestion of President Theodore Roosevelt, the United States and Mexico gave the court its first case, a dispute over whether the cession of California to the United States had ended Mexico's obligation to give financial support to an ancient fund for the conversion of the California Indians—the Pious Fund of the Californias. The court carefully examined a large quantity of historical evidence and, on 14 October 1902, rendered an award stating that Mexico was still obligated to support the fund.
Roosevelt's initiative in the Pious Fund case won approval from American and European peace movement leaders, but soon he made clear the limits of his confidence in the Hague Court. He refused to submit the controversy over the Alaska Panhandle's boundary with Canada to the court. A joint commission had failed to settle the matter, a problem since the Klondike gold rush in 1896, but Roosevelt agreed to what was essentially another commission, although called a tribunal. The president and the British monarch were each to appoint three "impartial jurists of repute." Roosevelt appointed his secretary of war, Elihu Root; his close friend Senator Henry Cabot Lodge of Massachusetts; and former senator George Turner of Washington, who was well acquainted with commercial relations between his state and the Alaskan gold-rush ports. King Edward VII appointed the lieutenant-governor of Quebec, Sir Louise A. Jetté; a Toronto lawyer, A. B. Aylesworth; and the lord chief justice of England, Lord Alverstone, who had a prominent role in the Bering Sea arbitration. Alverstone voted with the Americans for a decision favorable to American contentions. Great was the anger of Canadians who charged that no one could have expected the American jurists to be impartial, despite reasons for believing that the impartiality of the British Empire jurists was also suspect. Roosevelt told people who believed he had risked a sound claim to arbitration that a tie was the worst that could have happened, and he insisted that the London proceedings had not been an arbitration. History does not support what the president was saying, but his interpretation has, nonetheless, been widely accepted.
With regard to a more serious controversy, the Venezuelan debt affair, Roosevelt was as pleased to make use of the Permanent Court of Arbitration as he had been determined to avoid it in the Alaska boundary dispute. After Britain, Germany, and Italy blockaded Venezuelan ports in late 1902 and early 1903 to force Venezuela to honor financial obligations due their nationals in that country, other governments asked that the claims of their nationals in Venezuela also be paid. The question then arose as to whether the blockading powers should have preference when the payments began. Roosevelt saw an opportunity for the Hague Court. Upon his suggestion a court was again constituted from its list of arbitrators, and the interested powers began a long and complicated arbitration. The court finally announced, on 22 February 1904, an award stating that the blockading powers should have preference, a disappointing decision to many of the warmest friends of the court, for it seemed to reward violence.
Before World War I broke out, the Hague Court rendered awards in twelve other cases, two of them involving the United States. The Treaty of Washington of 1871 and the Halifax commission had failed to put to rest all difficulties over the North Atlantic fisheries, and the American and British governments referred their controversy to the Permanent Court in 1909. The court, on 10 September 1910, announced an award that upheld most British contentions but which was so carefully stated that the Americans as well as the British believed justice had been done. A few weeks after making this award, the court, on 25 October, made an award in another case involving the United States, the Orinoco Steamship Company case, a dispute between a company owned by U.S. citizens and the Venezuelan government. The award was substantially in accord with the position of the United States government.
The provisions of the Pacific Settlement Convention for commissions of inquiry and good offices and mediation were not used as often as the arbitration sections from 1899 to 1914, but they were of importance in connection with the most serious armed conflict of the era, the Russo-Japanese War. When Russia's Baltic fleet, en route to the Far East, fired into a British fishing fleet off Dogger Bank on the night of 21–22 October 1904, having mistaken the fishing boats for Japanese torpedo boats, there was a furor in Britain, and high officials in London talked of using force to stop the Russian fleet. Anger subsided when the Russian government suggested establishment of a commission of inquiry under terms of the Hague Convention. Four admirals—one each from Russia, Britain, France, and the United States—were appointed to a commission that carefully investigated the matter. Upon receiving the commission's report, the Russian government paid damages and the matter was closed.
As the war passed its decisive stages, peace movement spokesmen hoped that powers signatory to the Hague Convention would remember its provisions for good offices and mediation, and they were elated when President Roosevelt mediated a settlement, the Peace of Portsmouth of 1905. The American president made no use of the language of the Hague Convention, but it is probable that that document influenced him, for at one time he suggested that the Russians and Japanese hold peace negotiations at The Hague.
Many peace spokesmen in the United States and Europe believed Roosevelt's efforts to improve the Hague system would prove as important in the long run as his mediation of the Russo-Japanese conflict. The president in 1904 promised the visiting Interparliamentary Union that he would call another Hague peace conference, and in October of that year Secretary of State Hay sent out a circular suggesting a new conference. Later, Roosevelt stepped aside in response to a Russian request that Nicholas II have the honor of calling the conference officially, but the United States took an active role in the conference.
The Second Hague Peace Conference, which met in 1907, was much larger than the 1899 conference, for it included delegates from most Latin American countries. The Latin Americans were present because the United States asked for their inclusion. Indeed, Latin American policy was one of the most important considerations of the United States at the conference, but Secretary of State Elihu Root and the president did not forget the old dream of a world court. The chairman of the U.S. delegation, Joseph Hodges Choate, and another American member, James Brown Scott, struggled valiantly to secure establishment of a new tribunal, the Court of Arbitral Justice, which would have stood alongside the Permanent Court of Arbitration but would have been a truly permanent court, always in existence and ready to hear cases. Unfortunately, it proved impossible to agree upon a system of appointing judges without offending smaller powers that could not have continuous representation. As the conference closed, the Court of Arbitral Justice was only a project attached to a voeu (formal wish) that the powers signatory to the Final Act bring the court into existence as soon as they agreed upon the selection of judges and several details of the court's constitution.
The negotiation of arbitration treaties and treaties of conciliation were other important aspects of the diplomacy of peace from 1899 to 1914. Britain and France in 1903 negotiated a treaty of arbitration, and peace movement leaders then urged the United States to follow this example. Roosevelt and Hay yielded to their pleas, and Hay, in 1904 and 1905, negotiated treaties with France, Switzerland, Germany, Portugal, Great Britain, Italy, Spain, Austria-Hungary, Mexico, and Sweden and Norway. To the anger of Roosevelt and Hay, the Senate in advising ratification insisted that the preliminary arbitration agreements be actual treaties and therefore subject to the ratifying process. Roosevelt thereupon refused to proceed further, but Hay's successor, Root, was convinced that treaties amended so as to meet the Senate's requirements would be better than none. He prevailed upon the president to consent to negotiation in 1908 of a new set of treaties. The Senate found these treaties more to its liking and approved ratification.
It would have been well if President William Howard Taft and his secretary of state, Philander C. Knox, had been as cautious as Root in dealing with the Senate, for they would have been spared a large disappointment. Knox negotiated arbitration treaties with Britain and France in 1911 that made no exceptions for such considerations as national honor. The treaties merely stated that any matter that was justiciable would be arbitrated. Since whether or not a dispute was justiciable was subject to varying interpretations, it seemed that the treaties contained adequate safeguards for the interests of the governments concerned, but the Senate saw the matter in a different light. Believing that the treaties could limit the nation's freedom of action, the Senate refused consent for ratification.
President Woodrow Wilson's first secretary of state, William Jennings Bryan, was less interested in arbitration than his immediate predecessors, although he negotiated renewal of the Root treaties. He was more impressed with the conciliatory effects of commissions of inquiry and believed that their development could be carried much farther than the Pacific Settlement Convention had done. He hoped for treaties of conciliation incorporating new ideas about investigating commissions. Soon after the Wilson administration took office, he advanced what he called the president's peace plan. He urged nations to agree to refer their disputes to investigating commissions for six months or a year. While awaiting the reports of the commissions, they would refrain from going to war or increasing their armaments. The signatories of the treaties would be free to accept or reject conclusions of the commissions or to go to war, but Bryan was confident that the period of waiting could have a cooling-off effect and help avert war. He negotiated twenty-nine treaties according to this plan, and twenty of them were ratified. Sadly, this initiative for peace was interrupted by the outbreak of World War I.
The declarations of war in 1914 also interrupted American efforts to bring the Court of Arbitral Justice into existence and to ensure the meeting of a third Hague peace conference. Since the conference of 1907, American diplomats had been conducting quiet negotiations with the British, French, and Germans to establish the Court of Arbitral Justice without waiting for the consent of all powers that had participated in that conference. While these negotiations had reached no definite conclusion, in 1914 there were some reasons to hope for success. Negotiations for a third Hague peace conference were even more promising. The 1907 conference had recommended that another conference meet after an eight-year interval, the same as between the first two conferences. To many peace spokesmen and theorists, the conference seemed to be developing into a permanent institution. A periodic world conference and a world court with judges always ready to hold sessions—these were the institutions necessary for a viable world organization, they believed. In the United States the peace societies and the new Carnegie Endowment for International Peace brought pressure to bear upon Wilson and Bryan to use their influence to bring about the meeting of the conference, and this the president and the secretary of state agreed to do. Planning for the conference had made considerable progress when war began in 1914.
THE LEAGUE OF NATIONS AND THE WORLD COURT
The Hague period of modern internationalism ended abruptly with the declarations of war. The Pacific Settlement Convention and the treaties of arbitration and conciliation were brushed aside as the armies of the warring nations hastened to secure strategic positions. Four years later, as the war moved toward its close, European nations and the United States advocated a world organization. Occasionally there were recommendations that the new world system be founded on the work of the Hague conferences, but at Paris, in 1919, Wilson and other internationalists sought to break with the Hague traditions as they planned the League of Nations.
Fundamental in Wilson's thinking was the famous pledge in Article X of the League of Nations Covenant "to respect and preserve as against external aggression the territorial integrity and existing political independence" of the league's members. Wilson's small respect for the work of the Hague conferences notwithstanding, other members of the drafting committee incorporated into the covenant the prewar experience with arbitration and conciliation. Members of the league were to refer disputes that threatened rupture to arbitration, judicial settlement, or inquiry by the League Council. Parties to a dispute were not to go to war for three months after arbitral awards, judicial decisions, or reports from the council. The league convened a conference of experts at The Hague in 1920 to draft a statute for a new international court. The conference took the 1907 draft Hague convention for a Court of Arbitral Justice as the basis of its work and quickly produced the draft Statute for the Permanent International Court of Justice. The older Permanent Court of Arbitration was to have a special role in the new judicial system: its judges were to meet in national groups to make nominations for the new court. The Permanent Court of International Justice met for the first time in the Peace Palace at The Hague in 1922. The creation of the Permanent Court, usually called the World Court, was a special challenge to the United States. Elihu Root and James Brown Scott were among the experts who drafted the World Court Statute. Despite the failure of the United States to ratify the Treaty of Versailles and the attached Covenant of the League of Nations, adherence to the statute was possible. The isolationism resulting from the league struggle was, however, so strong that even the court aroused senatorial opposition. Presidents and secretaries of state during the 1920s and 1930s made several attempts to secure American entry into the World Court system. All failed. Secretaries of state, nevertheless, pursued arbitration policies like those of Elihu Root, renewing Root's treaties and negotiating entirely new arbitration agreements. The United States was one of sixteen republics at a Pan-American conference in Santiago, Chile, in 1923 that signed a treaty providing for commissions of inquiry to investigate disputes neither diplomacy nor arbitration could settle. At the Conference on Conciliation and Arbitration in Washington on 5 January 1929, the United States was one of twenty American republics signing a general arbitration treaty and conciliation convention.
The European experience with peaceful settlement between the world wars was no more promising than that of the United States. The World Court decided several cases, and governments continued to make use of arbitration. The Geneva Protocol was an important proposal to strengthen the covenant's arbitration provisions, but it failed in 1925 when a new Conservative government in London withdrew support. Later that year, at the Locarno conference, the German government concluded treaties with Belgium and France recognizing their boundaries with Germany and concluded arbitration treaties with those two countries and Poland and Czechoslovakia. All such initiatives for peace were swept aside when World War II began.
THE UNITED NATIONS
As World War II neared its conclusion, Allied statesmen reasoned that a new beginning for world organization was necessary, so at conferences at Dumbarton Oaks in Washington, D.C., and at San Francisco, they wrote the Charter of the United Nations. The charter included even more peaceful settlement procedures than the League Covenant. Parties to disputes were first of all to seek solutions "by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." The charter provided for a new World Court and declared that all UN members would be ipso facto parties to its statute. The new World Court Statute was a revision of that of 1920. When the International Court of Justice held its first meeting at The Hague on 3 April 1946, the most noticeable change was the dropping of "Permanent" from its official name.
The United Nations has been a major factor in world affairs since its founding. Decisions of the General Assembly and the Security Council have repeatedly tried to maintain order and peace. Intervention in Korea and many peacekeeping operations have often given the impression of a military alliance, but the quieter means of settling disputes peacefully have, nonetheless, been of importance. The International Court of Justice has made decisions in numerous disputes, and governments have continued to make use of the Permanent Court of Arbitration and ad hoc arbitration tribunals. Such tribunals make possible preservation of greater secrecy and, at the same time, allow each party to a dispute to name some of the jurists who will hear the case. The UN secretary-general, Kofi A. Annan, in 1998 noted that the Permanent Court of Arbitration and the International Court of Justice were neighbors in the Peace Palace and were "complementary institutions offering the international community a comprehensive range of options for the peaceful resolution of disputes."
When one reflects upon American initiatives to promote arbitration and a world tribunal before World War I and the consistency with which U.S. presidents during the 1920s and 1930s recommended adherence to the World Court Statute, American support since 1945 for the World Court and other means for pacific settlement has often seemed tepid. The memoirs and biographies of presidents and secretaries of state since 1945 include many references to the United Nations, but it is rare that they mention the International Court of Justice, arbitration, or other means for pacific settlement. As a former U.S. ambassador to the United Nations, Daniel Patrick Moynihan, has pointed out, American diplomacy has often appeared to be unaware of the resources offered by international law. Yet, a century after the Pious Fund case, arbitration again was of importance in some aspects of American foreign relations. Problems resulting from the Iranian Revolution led to establishment at The Hague of the Iran–United States Claims Tribunal in 1981. It was reported in April 2000 that the tribunal had settled 3,700 claims cases involving hundreds of billions of dollars. Certainly Iranian–United States relations continued to be unsatisfactory, but the tribunal demonstrated that through arbitration, progress toward a better relationship could be made.
Blake, Nelson M. "The Olney-Pauncefote Treaty of 1897." American Historical Review 50 (1945). A study of the Senate's rejection of the treaty.
Brower, Charles M., and Jason D. Bruesche. The Iran–United States Claims Tribunal. The Hague, 1998. A comprehensive study.
Campbell, John P. "Taft, Roosevelt, and the Arbitration Treaties of 1911." Journal of American History 53 (1966). The failure of the last important American effort to conclude obligatory arbitration treaties before World War I.
Cook, Adrian. The Alabama Claims: American Politics and Anglo-American Relations, 1865–1872. Ithaca, N.Y., 1975. Careful discussion of the Washington Treaty and the Geneva arbitration.
Corbett, Percy Ellwood. Law in Diplomacy. Princeton, N.J., 1959. Chapter 5. Fine survey of the history of arbitration.
Cory, Helen May. Compulsory Arbitration of International Disputes. New York, 1932. Describes development of its special topic from 1820 to 1931.
Crackanthorpe, Montague H. "Arbitration, International." Encyclopaedia Britannica. Vol. 2. Cambridge, 1910. The basic concepts and terminology of arbitration, mediation, and conciliation as they were understood early in the twentieth century.
Curti, Merle. Peace or War: The American Struggle, 1636–1936. New York, 1936. Discusses the promotion of arbitration by the peace movement.
Davis, Calvin DeArmond. The United States and the First Hague Peace Conference. Ithaca, N.Y., 1962. A detailed account of the negotiation of the Convention for the Pacific Settlement of International Disputes.
——. The United States and the Second Hague Peace Conference: American Diplomacy and International Organization, 1899–1914. Durham, N.C., 1976. Describes the establishment and development of the Permanent Court of Arbitration, the attempt of the Second Hague Peace Conference to establish a stronger world tribunal, and the efforts of American diplomacy to further development of the Hague Conferences and Court into a permanent world system.
Duberman, Martin B. Charles Francis Adams, 1807–1886. Boston, 1961. Excellent accounts of the Washington Treaty and the Geneva arbitration.
Gray, Christine, and Benedict Kingsbury. "Developments in Dispute Settlement: Inter-state Settlement Since 1945." British Year Book of International Law 1992. Oxford, 1993. One of the most important studies of the subject since 1945.
Herman, Sondra R. Eleven Against War: Studies in American Internationalist Thought, 1898–1921. Stanford, Calif., 1969. Analyzes important peace ideas.
Kuehl, Warren F. Seeking World Order: The United States and International Organization to 1920. Nashville, Tenn., 1969. Discusses proposals for organization of the world and its regions.
Mashkour, Mashkan. "Building a Friendly Environment for International Arbitration in Iran." Journal of International Arbitration 17 (2000). The latest information about Iran–United States arbitration.
Moynihan, Daniel Patrick. On the Law of Nations. Cambridge, Mass., 1990. A searching commentary on international law since 1945.
Oppenheim, Lassa. International Law: A Treatise. Vol. 2. London, 1906. Explains arbitration, mediation, and conciliation as international lawyers understood them early in the twentieth century.
Patterson, David S. Toward a Warless World: The Travail of the American Peace Movement, 1887–1914. Bloomington, Ind., 1976. An outstanding history.
Reisman, W. Michael. "The Multifaceted Phenomenon of International Arbitration." Arbitration Journal 24 (1969). Modern legal scholarship.
Sanders, Pieter, ed. International Arbitration: Liber Amicorum for Martin Domke. The Hague, 1967. Essays by leading scholars.
Savelle, Max. The Origins of American Diplomacy: The International History of Angloamerica, 1492–1763. New York, 1967. Important background for the later interest of the United States in arbitration, mediation, and conciliation.
Stuyt, A. M. Survey of International Arbitrations, 1794–1989. The Hague, 1990. A basic reference.
United Nations Secretary-General and International Bureau of the Permanent Court of Arbitration. Permanent Court of Arbitration. The Hague, 1998. Contains primary sources for the arbitral court's history.
See also Ambassadors, Executive Agents, and Special Representatives; Internationalism; International Law; Peacemaking; Treaties.