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Clauses Relating to Reference of Disputes in Obligatory Arbitration Treaties

Published online by Cambridge University Press:  12 April 2017

Robert R. Wilson
Robert R. Wilson*
Affiliation:
Duke University
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Extract

The shaping of agreements which are to impose new obligations upon states requires regard for political experience as well as high technical skill. The record of past effort seems to show that this is particularly true of treaties for pacific settlement. Among the problems incident to the construction of treaties for the arbitral settlement of future disputes, perhaps none is more central than that of the form in which the right actually to initiate arbitral proceedings is set forth. It is obvious that academic schemes which would disregard the dignity of public entities and suddenly abolish the distinction between states and individuals as parties litigant, leave much to be desired. On the other hand, the object of a treaty may be defeated by subtle preservatives of the full freedom of ction by the parties, or by what has been called a “misguided passion for juristic definition” on the part of draftsmen. It has long been recognized that unless the part of a general agreement covering the method of referring disputes is adequate, a strict construction of the instrument may leave it little more than the expression of a noble wish. Evasion or frank disregard may easily follow.

Type
Research Article
Information
American Journal of International Law , Volume 25 , Issue 3 , July 1931 , pp. 469 - 489
Copyright
Copyright © American Society of International Law 1931

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References

1 Lauterpacht, , “The British Reservations to the Optional Clause,” Economics, No. 29 (June, 1930), p. 142.Google Scholar

2 Hughes, Charles Evans, “Pan American Peace,” Yale Review, Vol. XVIII, No. 4 (June, 1929), p. 646.Google Scholar

But that “the Paris Pact . . . is far from complete from the standpoint of the organization of peace” was emphasized at the Ninth Assembly of the League of Nations. The Pact “speaks of submitting disputes to pacific procedure, but it does not provide for the organization of such procedure, nor does it stipulate any obligation to have recourse to it . . .” (remarks of M. Politis, Rapporteur for the Third Committee (League of Nations Official Journal, Special Supplement No. 64 (1928), p. 171.)

Cf. N. Ito, “Le pacte de Paris et le pacte de la Société des Nations,” Revue Politique et Parliammtaire, Vol. CXLIV, No. 428 (July 10, 1930), pp. 22, 27.

3 The United States and Peace, p. 116.

4 See the statement by a Norwegian representative at the Ninth Assembly of the League of Nations (League of Nations Official Journal, Special Supplement No. 64 (1928), p. 180.) See also discussion of reservation formulae employed in recent treaties, in this Journal, Vol. XXIII. pp. 68-93.

The general movement during the post-War decade has been covered in an instructive manner in Professor Dietrich Schindler's study, “Les Progrbs de VArbitrage Obligaloire depuisla creation de la SociMi des Nations,” Recueil des Cours de VacaMmie de Droit international, 1928, V.

5 Obligatory jurisdiction with particular relation to the competence of the Permanent Court of International Justice is treated in the comprehensive report of MM. Borel and Politis to the Institute of International Law at its session in 1927 (Annuaire, XXXIII, Pt. II, pp. 669-759).

A conservative point of view as to the state of compulsory arbitration is set forth in the Observations of His Majesty's Government in Great Britain on the Program of Work of the Committee on Arbitration and Security (League of Nations Official Journal, May, 1928, pp. 694-704).

6 It has sometimes been thought necessary to distinguish between arbitration stricto sensu and arbitration lato sensu, the latter comprehending any form cf settlement where the parties are bound to accept the resulting award. The term “obligatory” seems preferable to “compulsory” (the usual translation of the French obligatoire), in order to emphasize that legally obligatory arbitration is meant, and not the availability of sanctions to force states to accept awards.

7 “Le but ainsi poursuivi est de réaliser une intervention de la justice Internationale qui, une fois stipuée d'avance par les États en cause, ne dépendra plus, pour se produire dans un conflit concret, d'un accord ultérieur ad hoc des Parties. Voilà ce que caracUrise la juridiction veritablement “obligatoire” en droit international.

“. . . il y a juridiction international obligatoire dans le cas où, en vertu d'un accord initial entre les États, Vintervention de la justice Internationale,lors d'un conflit, est assurié de telle sorte qu'elle ne puisse plus êire exclue, ou paralyse ultérieurement par la résistance de l'un d'eux ou par un désaccord entre eux” (Report of MM. Borel and Politis, Annuaire de l'lnstitut,XXXIII, Pt. II, pp. 674, 675).

If arbitration lato sensu is being considered, it seems preferable to use the expression “juridiction internationale” in preference to “justice internationale” in the first sentence quoted above. See the observations of M.Hammarskjöld, Annuaire, XXXIII, Pt. II, p. 818, and Schindler, loc. cit., pp. 238, 239.

The weakness of an arbitration treaty which does not contain within it the elements of a compromis and which leaves the parties to make another accord when the time comes for them to carry out their original agreement, is discussed, with reference to actual treaties made before 1908, by Pillet, La cause de la Paix et les deux Conférences de la Haye, pp. 42 et seq.

8 Ralston, , International Arbitration from Athens to Locarno, p. 49. The same writer observes that “a word of explanation should be made with regard to the compromis . . . the word itself being derived from the French civil law governing private arbitrations. The compromis may be so designated in its title, although often given the name of convention, treaty or protocol. It may be a document complete in itself, or it may form part or the entirety of a preceding general treaty or special treaty providing for the invocation of an arbitral tribunal whenever the occasion should arise. Wlien forming part of a former treaty and couched in general terms, the portion providing for the formation of an arbitral tribunal is known as the clause compromissoire.”Google Scholar

See also Langlade, De la Clause compromissoire, passim.

9 Merignhac, , Traité theorique et pratique de l'arbitrage international, p. 157; Acremant, La procedure dans les arbitrages internationaux, p. 37; Kamarowsky, , Le tribunal international, p. 315;Google Scholar Audry, , La Revision de la sentence arbitrate, pp. 15, 16.Google Scholar

10 Annuaire, 1877, p. 127.

11 Ibid., pp. 127-133.

12 Annuaire, , 1878, p. 160. See the discussion of the nature of a compromis inthe Annuaire, Vol. XXI (1906), pp. 190, 191.Google Scholar

13 Merignhac, op. tit., p. 204: “. . .la clause compromissoire ordinaire . . . auncaractbre obligatoire en ce sens que les contractants, en cas de difficulté, sont juridiquement terms d'y recourir . .”

But see the statement made at the First Hague Conference that “la validité de pareille stipulation (stipulation compromissoire) n'est pas admise, en droit national, par toutes les législations positives; la jurisprudence n'est pas fixée partout á ce sujet . . .” (Conférence Internationale de la Paix (1899), I, p. 112).

14 Annuaire de l'Institut, XXXIII, Pt.II, 672 (report cited). See also Conférence Internationale de la Paix (1899), I, 112.

15 See the remarks of Baron d'Estoumelles de Constant, document cited, IV, p. 163.

16 Deuxiène Conférence de la Paix, II,521 (remarks of M. Hammarskjöld).

17 This general contention, as set forth in remarks of German, Austrian and Italian representatives, is found in proceedings in subcommittees, in connection with proposed amendments to the Hague Convention for the Pacific Settlement of International Disputes and the project for a Court of Arbitral Justice. See document cited, II, 639, 748, 749.

18 Document cited, II, 750 (remarks of M. Lammasch).

19 Ibid., 520 (remarks of Count Tomielli).

20 Idem; a treaty between Italy and Denmark was cited in illustration. M. Drago pointed out that in the Argentine Republic, a general arbitration convention was considered a treaty, which must have the approbation of the Congress, but that a compromis was an act executing the treaty, and could be concluded by the executive alone (document cited, II, 523).

21 Deuxième Conference de la Paix, II, 519, 524.

22 Ibid., p. 523.

23 Ibid., p. 524.

24 36 U. S. Stats., 2240.

25 Langlade, op. tit., pp. 185, 186.

26 The Permanent Court of International Justice has had occasion, in connection with two advisory opinions, to contrast “arbitration” in the broadest sense of the word (covering aTny form of amicable settlement where the parties become bound, when resorting to the procedure, to accept the resultingaward) and the “common and more limited conception” of arbitration(by judges ofthe parties' choice and on the basis of respect for law); see Publications of the Court, Series B, No. 12, p. 26; No. 16, p. 23.

Professor Gamer has observed that “it is a mistake to assume that we are now done with arbitration because we have a judicial court for the settlement of controversies” (Recent Developments in International Law, p. 519).

27 See Professor Schindler's distinction between two forms of arbitration, l'arbitrage judiciaire and l'arbitrage politique, the former involving the judicial function of interpreting or applying existing law, the latter requiring the exercise of a function resembling legislation (loc. tit., p. 270).

28 On the now familiar distinction between special and general clauses of this kind, see Langlade, op. tit., pp. 200, 201.

29 These were commercial treaties, not inter-European, but made by certain European states with Siam and Hawaii. Texts are to be found in 52 British and Foreign State Papers, 521 (Hawaii-Belgium);59 ibid., 405 (Belgium-Siam); 60 ibid., 773 (Siam-Italy); 69 ibid., 1135 (Norway and Sweden-Siam); 61 ibid., 1308 (Austria-Hungary and Siam);Treaties and Conventions Concluded Between the Hawaiian Islands and Other Powers Since 1825, 83 and 91 (texts of treaties with Switzerland and Italy respectively).

30 List in Conférence Internationale de la Paix (1899), I, 182-194. The language of the instruments referred to seems to bear out the statement offered.

31 Cf.Stoĭka, , La Question de Varbitrage obligatoire aux Conférences de la Paix, p. 46.Google Scholar

32 Text in Annuaire de l'Institut de Droit International, XX, 36-37, also in Darby, International Tribunals (4th ed., 1904), p. 378.By the third article, the three-member tribunal was to draw up a form of agreement which should determine the object of the litigation, the composition of the tribunal and the duration of its powers, this agreement to be signed by the representatives of the parties and by the arbitrators; but no provision was made to cover the failure of this plan.

33 Text in Pari. Papers, United States, No. 1(1897), C. 8331. In the correspondence which led up to this treaty, the British Government pointed to some of the most serious difficulties in the way of unlimited arbitration (Pari. Papers, United States, No. 2 (1896), C. 8105, containing the observations of Lord Salisbury).

34 Text in Darby, op. cit., 400-404.

35 Taylor, Hannis, “International Arbitration the Product of the Modem InternationalSystem,” Green Bag, XVII, No. 2 (February, 1905), p. 103.Google Scholar

36 Text in Pari. Papers, Treaty Series No. 18(1903), C. 1837. The “special agreement” was to deal not only with the object of the dispute and the arbitrators' powers, but with other necessary details inconnection with the constitution and procedure of the tribunal.

37 The history of the attempt to conclude theeleven treaties is summarized in World Peace Foundation Pamphlets, Vol. IX (1926), Nos.6-7, pp. 513-521. For a review of opinion as to whether the ratification of the Hague Convention for Pacific Settlement authorized the President of the United States at his discretion to enter into agreements with other states to refer pending or unknown disputes to the Hague Court, see Professor Charles Cheney Hyde's article, “Agreements of the United States Other than Treaties,” Green Bag, Vol. XVII, No. 4 (April, 1905), pp. 229-238. See also an editorial comment in this Journal, Vol. II (1908), pp. 387-391.

38 See the criticism by Sir Thomas Barclay before the Institute of International Law, of the translation of compromis as “agreement” (in connection with the Hay treaties), Annuaire, Vol. XXI, p. 191.

Senator Lodge submitted to the United States Senate on February 5, 1905, facts showing constitutional methods of making and ratifying treaties in twelve foreign countries,together with a list of arbitration agreements not referred to the Senate (Congressional Record, Vol. 39, pp. 2627-2630).

39 These conventions provide for the arbitration of claims for compensation on the ground that loss or injury has been suffered through the improper or unreasonable exercise of rights conferred by the agreements, reference to be to two persons of whom one shall be nominated by each of the parties, or to the Permanent Court of Arbitration; in the latter case proceedings are to be regulated in accordance with the general plan of the Hague Convention, but “excepting Articles 53 and 54” (the part of the convention allowing a tribunal to establish a compromis). See the convention with Japan, U. S. Treaty Series, No. 807.

40 45 U. S. Stats., 2842, 2843 (Article 20 of the convention). Under this agreement the arbitration is to be by governments.

41 Recopiladon de Tratados, Convendones . . . (Chile), VI (1902-1911), pp. 10-19.

42 Trattati e Convenzioni (Italy), 17 (1903-1905), pp. 563-564. Under this arrangement some common action for the selection of arbitrators for each dispute would have been necessary.

43 Recueil des Traités et Conventions conclus par le Royaume dea Pays-Bas, XVII, pp. 109, 110.

44 Text in 103 British and Foreign State Papers, 376; Article IV specified the procedure to be followed should the parties fail to agree upon a compromis.

45 Général, Nouveau Recueil (Martens), 3rd Series, p. 359. This convention marks less of a departure than others in this group.Google Scholar

46 Text in Trattati e Convenzioni, 17 (1903-1905), pp. 504—507; English text in 101 British and Foreign State Papers, 374r-377. There was to be a single arbitrator, appointed alternately by the parties as cases arose. A special agreement for reference of each dispute was contemplated. But in the absence of such agreement, and after one of the parties should have proved that four months had passed since the other party had been asked to arrange for reference, the arbitrator could specify, taking as a basis the reciprocal claims of the parties, the points of law and fact necessary to be solved in order to decide the controversy.

47 Text of Convention for the Establishment of a Central American Court of Justice, signed Dec. 20,1907 (Anales de la Carte de Justida Centro-americana, I, 2-9). Articles XIV and XV permitted judgment by default againsta defendant party. Time limits were set, after the expiration of which the court might consider the evidence presented and which it might ex officio have seen fit to obtain, and proceed to render its decision, which then became binding. The operation of this plan as against Nicaragua in the cause growing out of the Bryan-Chamorro Treaty is so well known as not to require comment.

48 Text in Journal Officiel, Dec. 30, 1911, p. 10636. This convention provided in its fourth article that if, within a year after the notification by the most diligent party of a “projet de compromis,” theparties had not agreed thereon, the Permanent Court of Arbitration should be competent to establish the compromis, and might be seized of the matter at the request of one party. But refusal even to designate arbitrators would apparently have blocked the scheme.

49 Texts of treaties, with France (signed July 3, 1914), Journal Oficiel, Dec. 27, 1916, p.11112; with Spain (signed July 9,1916)Gaceta de Madrid, 1917,1 ,181-2. The plan did not provide against failure of either party to designate an arbitrator.

50 Text in Recueil des Traités et Conventionscondus par le Royaume des Pays-Bas, XVIII, pp. 493-495. This treaty did leave it theoretically possible for reference to be effected and a tribunal constituted without any cooperation on the part of a defendant state; as a last resort, at the request of one party, the President of the United States could designate arbitrators from the panel of the Permanent Court of Arbitration, excluding nationals of the parties.

51 By unconditional is, of course, meant unconditional from a procedural standpoint. The requirement of a compromis either in the form of a treaty or a diplomatic exchange after the dispute had arisen would constitute a condition.

52 The Bryan treaties have not been dealt with here, since under them the obligation to submit for investigation and report was not accompanied by any obligation to refer for settlement in any case.

53 This number includes single compromissary clauses, treaties for general arbitration, combination arbitration-conciliation engagements, and agreements for judicial settlement.

54 This would apply to a number of conventions which Great Britain and the United States renewed, especially during the early part of the decade; such an agreement was that of August 23, 1923, between the United States and Japan (U. S. Treaty Series, No. 683).

55 Multilateral agreements would, of course, include the Optional Clause protocol, the General Act approved by the Ninth Assembly of the League, and, if the negative form of its second article be regarded as obliging states to follow any definite procedural course, the Pact of Paris.

56 League of Nations Treaty Series, No. 991.

57 This treaty is the subject of comment by Professor R. Erich, in the Revue de Droit International, de Sciences Diphmatiques, Politiques et Sodales, Vol. 3 (1925), 219-223.

58 Text in Conference on Central American Affairs, 1922-1923 pp. 296-313; also supplement to this Journal , Vol. 17(1923), p.83.

59 Article VIII of the convention; Chapter I of Annex B to the convention (document cited, pp. 303, 304, 319, 320).

This procedure does not appear to have been used in the arrangement of the boundary question between Honduras and Guatemala (New York Times, Aug. 2 and Aug. 15, 1928), thestates preferring to handle the matter first through the method of informal conference(U. S. Department of State Press Release for Feb. 1,1930, p. 52) and subsequently signing a treaty submitting the question to arbitration (Press Release for July 19, 1930, pp. 37-39).

60 On the effect of a dairn of right by one party under these conventions, see Professor Schindler, loc. cit., pp. 298, 299, 309, 310, referring to the views of Rolin, in Revue de droit international et de législation comparié, Vol. VIII, p. 600.

61 Paragraph 2, Art. 16, of the Belgian-German convention. Texts of the four treaties are in League of Nations Treaty Series, Nos. 1293,1294,1295,1296. The fact that the engagements of these treaties are guaranteed by outside states should be taken into consideration in estimating their significance; but see the reminder in a communication of the British Government to the League in 1928 that the sanction was limited to complying with such proposals as the Council might make when the failure of a state to honor the obligation as to arbitration was brought before the Council (League of Nations Official Journal, May, 1928, p. 695).

62 Art. 4 of the convention between Norway and Denmark (League of Nations Treaty Series, No. 1418). Texts of other treaties in this group are in the same series, Nos. 1192, 1235, 1242, 1417, 1420. The procedure outlinedis only for disputes other than legal ones; for the classes of disputes listed in Art. 36 of the Statute of the Permanent Court of International Justice, the jurisdiction of the court is agreed to, although under some of these treaties parties may first resort to the procedure of enquiry and conciliation for legal disputes.

63 Proceedings of the International Conference of American States on Conciliation and Arbitration(1929), pp. 662-664.

64 See the discussion of what is called the “unique” practice of the United States in this matter, by MurdockJ. O., this Journal, Vol. XXIII, at pp. 285-288, and the comment on this part of the treaty by Hughes Mr. (loc. cit., pp. 657-659).

65 It has not been thought necessary to classify the agreements under review; this has been done by Professor Schindler (loc. cit., pp. 256, 257), who finds that approximately two-thirds of the sixty-four treaties which he has classified are really agreements for obligatory reference, tested from the pointof view of procedural provisions.

For a discussion of the distinction between arbitration by an ad hoc tribunal and judicial settlement by the Permanent Court of International Justice, see the report of MM. Borel and Politis, cited supra (pp. 690, 691). See also observations of M. Antoine Hobza on this part of the report (Annuaire, Vol. XXXIII, Pt. II, pp. 830, 832); it is pointed out that there are in existence a number of relatively permanent arbitral tribunals. M. Novakovitch, judge ad hoc of the Permanent Court of International Justice, has emphasized the necessity for special agreement by parties before the court can act as an arbitral body and give judgment ex aequo et bono (Publications of the Court, Series A, No. 20 (Judgment No. 14)), p. 80.)

66 Schindler, loc. cit., pp. 346, 347, who finds this the rule of 22 treaties.

67 Politis, , The New Aspects of International Law, p. 62.Google Scholar

68 Professor Schindler cites the convention of Nov. 25, 1925, between Great Britain and Siam (text in Pari. Papers, Treaty Series, No. 7 (1927), Cmd. 2813) as the only one in the list which he reviews providing the unilateral request as the sole method of referring questions to the Permanent Court of International Justice, but points out that under certain other instruments conferring obligatory jurisdiction upon the court, the unilateral request is not expressly stipulated (loc. cit., pp. 345, 346).

It should be added that, even under the British-Siamese agreement mentioned, the obligation to submit to the jurisdiction applies only “in the absence of contrary agreement” (Art. I of the convention).

69 This difficulty might arise under the General Treaty of Inter-American Arbitration of 1929, as pointed out above.

70 As in the treaty of March 14,1928, betweenDenmark and Spain, Art. 20 of which incorporates by reference the obligatory compromis plan of the Hague Convention for Pacific Settlement (League of Nations Treaty Series, No. 1735).

71 Illustrated in Art. 7 of the treaty of May 20, 1926, between Germany and The Netherlands (League of Nations Treaty Series, No. 1527).Google Scholar

72 Illustrated in the treaty of conciliation, compulsory arbitration and judicial settlement between Roumania and Switzerland, signed Feb. 3,1926 (text in League of Nations Treaty Series, No. 1306), Art. 16 of which provides this plan. The wisdom of such a provision for other than legal questions (i.e., questions other than those the settlement of which requires an application or interpretation of existing law) may be doubted.

The linking of arbitration and judicial settlement may be more definitely and generally accomplished if the suggestion, considered at the Tenth Assembly of the League, forconferring an obligatory appellate jurisdiction upon the Permanent Court for cases heard by arbitral tribunals, finds favor. See thememorandum presented to the Committee of Jurists onthe Statute of the Permanent Court of InternationalJustice in March, 1929 (Minutes, pp. 105-106) and action taken by the League Council to carry out the Assembly's resolution thereon (League of Nations Official Journal, February, 1930, pp. 86, 87, 101).

73 U. S. Treaty Series, No. 805. Other treaties in the list of more than twenty so far signed are in substantially similar form.

See the editorial comment on these agreements by Professor Gamer, J. W., this Journal, Vol. XXIII, p. 597, and a reported Dutch criticism of the American treaties, described as “so far below the standard of treaties of this kind concluded in the last ten years,” in New York Times, June 13, 1930, p. 7.Google Scholar

74 Art. 3 of the treaty; text in League of Nations Treaty Series No. 1072. It was reported that Japan was not willing to go as far as Switzerland wished to go in this treaty. The limitation of the treaty's operation to a term of five years was said to have been done at the desire of the JapaneseGovernment, and defended on the ground that advancing ideas with reference to obligatory jurisdiction in general made it desirable to limit any such arrangement to a comparatively short period of time (Journal de Gentve, April 8,1925, p. 3).

75 See discussion of these instruments at the Ninth Assembly, Official Journal, Spec. Supp. No. 64 (1928), pp. 167-177.

75a See the remarks of M. Adatci (Japan), who observed that there were some countries, like his own, “which like to act on bilateral lines,” while others prefer multilateral arrangements; he added that “freedom of choice must be respected in a question such as this, in which the spontaneity ofthe act enhances its value”(ibid., p. 52). Compare the opinion of Dr. Nansen (Norway) expressed at the same session of the Assembly:

“The system of bilateral treaties has been most valuable in the past. It may still serve a useful purpose in the future, but it is clear to us that bilateral treaties cannot meet the needs of the organized community of states at the present time.”(Ibid., p. 180.)

76 Ibid., p. 503. A text of the General Act is in the same publication (pp. 492-497), together with the bilateral models for judicial settlement, arbitration and conciliation (pp. 498-509).

77 General Act, Art. 19 and Art. 34, para, (c); Bilateral Convention for Pacific Settlement of All International Disputes, Arts. 6 and 30; Art. 9 of the model Collective Treaty of Mutual Assistance; Art. 8 of CollectiveTreaty of Non-Aggression; Art. 8 of the Bilateral Treaty of Non-Aggression (texts of the last three treaties mentioned in Document A. 86 (1). 1928. IX, pp. 25-42).

78 See Art. 21 and Art. 34 (c) of the GeneralAct; Art. 26 of the Bilateral Convention for Pacific Settlement of All International Disputes.

79 See Art. 24 of the Bilateral Convention for Judicial Settlement, Arbitration and Conciliation.

80 Remarks of Politis M.,Official Journal, Spec. Supp. No. 64 (1928), p. 169.

81 Up to February, 1930, the General Act had been accepted in its entirety by Belgium, subject to the reservation in its Art. 39 (2)(a), while Norway and Sweden had accepted the chapters relating to Conciliation and Judicial Settlement and General Provisions (in Chap. IV) relating to Conciliation and Judicial Settlement (League of Nations Official Journal, February, 1930, p. 244). It was later reported that Denmark had accepted the Act and that the French Chamber of Deputies had approved it, that Finland had ratified but had not notified her ratification to theLeague, and that The Netherlands Government had accepted the parts under which Norway and Sweden were bound (New York Times, June 14, 1930, p. 8; Aug. 12, 1930, p. 7). Luxemburg and Spain were added to the list of states accepting all or part of the General Act, in September, 1930.

82 Announcement of the adhesion of Great Britain, France, Australia, India and New Zealand was made at the meeting of the Council inMay, 1931; M. Grandi explained that the Italian Chamber had ratified the General Act and that the Senate was about to do so (Journal de Genéve, May 22, 1931, p. 10).

83 The full record of action taken in the Sino-Belgian matter, following Belgium's application, is in the Publications of theCourt, Series A, Nos. 8, 14, 16,18.

84 This ratification was effected on Feb. 29, 1928 (League of NationsOfficial Journal, May, 1928, p. 600).

85 Speech by the President of the Assembly at the closing meeting (Official Journal, Spec. Supp. No. 75 (1929), p. >178).

86 Lauterpacht,loc. cit., p. 170. The writer discusses possible undermining effects of the British reservations to the Optional Clause, and notes that Italy, France and other states in their acceptances of the clause have reserved the right to submit a dispute to the Council, without laying down any time-limit within which this right of suspending the court's jurisdiction may be exercised.

87 Miller, The Geneva Protocol, pp. 73 et seq.

88 Publications of the Permanent Court of International Justice, Series A, No.6, p.14.

89 Ibid., Series A, No. 15 (Judgment No. 12),p. 22. Judge Huber, dissenting, thought that in this particular case a compromis or previous agreement to bring the suit should have been held necessary (ibid.), pp. 52, 53).

90 Ibid., p. 23.

91 See the observations of M. Hammarskjöld, comparing the procedure of referring a dispute to the court by means of a compromis withthat of referring by unilateral request (Annuaire de l'institut de droit international, XXXIII, Pt. II, pp.823, 824).

92 Publications of the Court, Series D, No. 2, p. 214 (remarks of M. Huber).Google ScholarPubMed

93 Ibid., p. 53.

94 See the remarks of Sir Cecil Hurst before a subcommittee of the Ninth Assembly of the League. While duly appreciating the useful purpose which might be served by the General Act, he hoped it was understood by everyone that the Act did not prevent any state from negotiating its own bilateral agreements in order to conclude, in the way most suited to its own needs, its arbitral obligations (Official Journal, Spec. Supp. No. 65 (1928), p. 68).

95 Hoijer, , Les Traités Internationaux, Vol. II, pp. 252, 253.Google Scholar

96 This was emphasized in the report of MM. Borel and Politis, cited supra (p. 723).

97 See the discussion (during a considerationof revision of rules) by members of the Permanent Court of International Justice, July 24, 1926, on the meaning of the French words requite and demande, and the words “request” and “application” in English, as used in documents pertaining to the court's jurisdiction (Publications of the Court, Series D, Addendum to No. 2, pp. 176,177).Google Scholar

98 This does not lose sight of the fact that the Optional Clause movement may be seriously hindered through the reservations modifying acceptances.

99 Reported remarks of Viscount Inouye at the 1930 session of the Interparliamentary Union (New York Times, July 19, 1930, p. 3).

100 The instances in which parties to treaties have agreed to reference for settlement on unilateral request, as a last resort, regardless of the nature of the question, seem to be quite exceptional. The German Government, which has been a leader in the conclusion of the newer types of treaties, stated in its observation on the work of the League's Committee on Arbitration and Security in 1928 that “under present conditions, there is as yet no possibility of all disputes of an exclusively political character being submitted for compulsory and final decision to an arbitration authority,” but suggested that steps could be taken toward the realization of this idea “by introducing other forms of procedure, which, while respecting the legitimate requirements of national life and its development, would practically ensure the settlement of the disputes” (League of Nations Official Journal, May, 1928, p.705).