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The Permanent Court of Arbitration

Published online by Cambridge University Press:  12 April 2017

Manley O. Hudson
Manley O. Hudson*
Affiliation:
Harvard Law School
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Extract

Arbitration in the Nineteenth Century. While arbitration was employed for the settlement of international disputes throughout the nineteenth century, it was employed more frequently in the later than in the earlier part of the century. In most cases, resort to arbitration depended upon an ad hoc agreement between the states concerned; the tribunal to which a dispute was referred was created ad hoc, and it ceased to function when the particular dispute was disposed of. It was hardly before the middle of the century that states began to agree in advance to have resort to arbitration, and these agreements were usually very restricted. General bipartite arbitration treaties were all but unknown prior to 1850; and even when they became more numerous their provisions were seldom all-embracing. Increasingly, however, states began to agree in advance to arbitrate special questions. In a few cases, provisions for the arbitration of certain disputes were included in multipartite instruments: the Universal Postal Convention of October 9, 1874 (Article 16), the General Act of Brussels of July 2, 1890 (Article 55), and the Convention on Railway Freight Transportation of October 14, 1890 (Article 57), are outstanding examples.

Type
Research Article
Information
American Journal of International Law , Volume 27 , Issue 3 , July 1933 , pp. 440 - 460
Copyright
Copyright,© by The American Society of International Law 1933

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References

1 For lists of arbitrations during the nineteenth century, see 2 Anales de la Corte de Justicia Centroamericana (1912), p. 58; Darby, International Tribunals (4th ed. 1904), pp. 771900; Fontaine, H. La, “ Histoire sommaire et chronologique des arbitrages internationaux,” 4 Revue de Droit International et de Législation Comparié (2 ser.), pp. 352, 558, 623;Google Scholar Fontaine, H. La, Pasicrisie Internationale (1902), p. 651;Google Scholar Ralston, , International Arbitration from Athens to Locarno, pp. 345-355 Google Scholar. See also, 5 Moore, , International Arbitrations, pp. 4851 ff.;Google Scholar Dreyfus, , L'Arbitrage International (1892), pp. 154 ff.Google Scholar

2 Lapradelle, De and Politis record 28 cases for the period from 1798 to 1855, and 42 cases for the period from 1856 to 1872. Recueil des Arbitrages Internationaux, I (1905), II (1924)Google Scholar. Fontaine, La lists 43 cases for the period from 1794 to 1860, and 134 cases for the period from 1861 to 1900. Pasicrisie Internationale, p. viii.Google Scholar

3 For a list of arbitration treaties concluded between 1828 and 1914, see Myers, Denys P., “ Arbitration Engagements,” World Peace Foundation Pamphlet Series, Vol. V (1915), No. 5.Google Scholar Myers lists four treaties for the period from 1828 to 1850, and 38 for the period from 1851 to 1900. William , R. Manning lists 228 arbitration treaties to which American states became parties between 1822 and 1910, only 19 of which were concluded before 1850. Manning, Arbitration Treaties Among the American Nations (1924), p. ix.Google Scholar

4 For lists of general and special compromissory clauses in treaties, see Fontaine, La, Pasicrisie Internationale, p. x;Google Scholar Cory, , Compulsory Arbitration of International Disputes (1932), p. 8.Google Scholar

5 65 British and Foreign State Papers, p. 13.

6 82 id., p. 55

7 82 id., p. 771.

8 Scott, , International Conferences of American States, p. 40.Google Scholar

9 The collections of Traiés Generaux d'Arbitrage Communiqués au Bureau International de la Cour Permanente d'Arbitrage, 1st series (1911), 2d series (1914), 3d series (1921,1928), 4th series (1929), 5th series (1932), contain the texts of 125 treaties concluded between 1899 and 1914. See also Lange, Chr. L., L'Arbitrage Obligatoirem 1918 (Brussels, 1914).Google Scholar

10 The following signatories deposited ratifications: United States of America, Austria-Hungary, Belgium, Bulgaria, China, Denmark, France, Germany, Great Britain, Greece, Italy, Japan, Luxemburg, Mexico, Montenegro, Netherlands, Persia, Portugal, Rumania, Russia, Serbia, Siam, Spain, Sweden and Norway, Switzerland, and Turkey. Reservations were made by the United States of America, Rumania, Serbia and Turkey.

11 For the text, see 100 British and Foreign State Papers, p. 276

12 Argentina, Bolivia, Brazil, Chile, Colombia, Cuba, Dominican Republic, Ecuador, Guatemala, Haiti, Nicaragua, Panama, Paraguay, Peru, Salvador, Uruguay, and Venezuela.

13 With reservations in some cases.

14 These include Argentina, Bulgaria, Chile, Colombia, Dominican Republic, Ecuador, Great Britain, Greece, Italy, Paraguay, Persia, Peru, Serbia (Yugoslavia), Turkey, Uruguay, and Venezuela

15 These are Czechoslovakia, Finland and Poland. Article 94 of the 1907 Convention seems to require an “ entente ultérieure” as a condition precedent to such adhesion; on being notified of the desires of these states to adhere to the convention, the Netherlands Government submitted them to the appreciation of the signatory states which gave their assent. No formal agreement was entered into.

16 16 For instance, though Great Britain has not ratified the 1907 Convention, it has been a party to several arbitrations under it.

17 Neither Russia nor the Union of Soviet Socialist Republics is included in the current list of Puissances contractantes. The Union of Soviet Socialist Republics seems to take no part in maintaining the Permanent Court of Arbitration, though Russia had ratified the 1907 Convention.

18 Some of the parties to the conventions do not keep their national groups filled; the Rapport du Conseil administratif, 1933, lists 152 members on March 10, 1933.

19 The United States of America, for instance, has had eleven members of the Permanent Court of Arbitration, of whom only three have acted as members of tribunals.

20 The Bureau has had its offices in the Peace Palace at The Hague since August 28, 1913, when the Peace Palace was inaugurated. Formerly, its offices were at 71 Prinsegracht, The Hague.

21 The first Secretary-General, Baron Melvil de Lynden, served in that capacity from October 1, 1900 to August 1, 1901. His successor, Mr. L. H. Ruijssenaers, served from 1901 to 1905. Baron Michiels van Verduynen served as Secretary-General from October 1, 1905, until his death on February 4, 1929. The present Secretary-General, Dr. C. Crommelin, assumed office on April 18, 1929.

Art. 21 of the Statute of the Permanent Court of International Justice provides that “ the duties of Registrar of the Court shall not be deemed incompatible with those of Secretary- General of the Permanent Court of Arbitration.” When a vacancy in the latter office was about to be filled in 1929, the Registrar drew this provision to the attention of the President of the Administrative Council of the Permanent Court of Arbitration. Publications of the Court, Series E, No. 5, p. 246.

22 Under this system each state chooses the class into which it will be placed, and the various classes contribute different numbers of units. These now depend on the Universal Postal Convention signed at London, June 28, 1929; in 1932, states in the first class contributed 25 units each, and those in the seventh class contributed one unit each. The United States of America, the Argentine Republic, China, France, Germany, Great Britain, Italy, Japan and Turkey are in the first class. See the Rapport, 1933, p. 16.

23 In 1933, twelve of the Puissances contractantes were not represented at The Hague and hence were not represented on the Administrative Council

24 For the text, see 94 British and Foreign State Papers, p. 722.

25 For the text, see 94 id., p. 724.

26 Apart from The Hague conventions, however, the Statute of the Permanent Court of International Justice (Articles 4 and 5) provides for nominations of candidates in the elections of judges and deputy judges, by the national groups in the Permanent Court of Arbitration “ belonging to the States mentioned in the Annex to the Covenant or to the States which join the League subsequently.” In 1921, the national group “ belonging to ” the United States of America declined to admit that any duty or authority had been imposed on it by these articles of the Statute. League of Nations Document, A. 42. 1921. V.

27 A French law of December 2, 1903, provided that alien members of a tribunal created under the Hague Convention of 1899 and sitting in France should enjoy diplomatic privileges and immunities. 18 Bulletin des Lois (12th ser.), p. 453; Dalloz, , Jurisprudence Générale (1904), Part IV, p. 7; 98 British and Foreign State Papers, p. 848.Google Scholar

28 The British Government protested against the appointment of M. Renault as counsel before the tribunal, because he was a member of the Permanent Court of Arbitration; counsel for Venezuela made a similar protest in general terms, on the ground that members acting as counsel would possess advantages over counsel who were not members.

29 Apparently, however, this disability does not prevent a member of the court from giving legal advice. See the Rapporteurȇs statement in Scott, Reports to the Hague Conferences, p. 344. See, also, Scott, The Hague Peace Conferences, I, p. 294.

30 See Report of the Advisory Committee of Jurists, 1920. Procés-verbaux of the Proceedings (The Hague, 1920), p. 698.

31 The explanation in Article 54 that the compromis is to be fixed by a commission of five members selected as provided in Article 45, robs Article 53 of its apparently compulsory feature.

32 For a list of arbitrations since 1900, see Cory, , Compulsory Arbitration of International Disputes (1932), pp. 235-238. Google Scholar

33 It also lists the France-Great Britain tribunal in the Chevreau claim case and the United States-Sweden tribunal in the case of the S. S. Kronprins Gustaf Adolf and S.S. Pacific,as special tribunals, though the sole arbitrator in each of these cases was a member of the Permanent Court of Arbitration.

34 Rapport du Conseil administratif de la Cour Permanente d'Arbitrage (1932), pp. 47-48.

35 Two convenient collections of the awards of tribunals have been published: Scott, James Brown, Hague Court Reports (1916),Google Scholar Hague Court Reports, second series (1932); and Wilson, George Grafton, The Hague Arbitration Cases (1915).Google Scholar See also,Scott, James Brown, Les Travaux de la Cour Permanente d'Arbitrage de la Haye (1921).Google Scholar

36 Under this agreement certain claims were referred to arbitration under Chapter IV of the 1907 Convention, the tribunal to be constituted in accordance with Articles 87 and 59 of the convention, and the procedure to be in accordance with certain of its provisions. Of the three original members of the tribunal, only one was a member of the Permanent Court of Arbitration at the time of his selection

37 Recueil des Actes et Protocoles concernant le litige du “ Fonds Pieux des Californies,” published by the Bureau International de la Cour Permanente d'Arbitrage, The Hague, 1902; Scott, , Hague Court Reports, p. 1.Google Scholar

38 U. S. Foreign Relations, 1902, p. 778. The Government of the United States had first suggested arbitration, however

39 The text of the note has not been published by the International Bureau.

40 Recueil des Actes et Protocoles concemant le litige entre VAUennagne, I'Angleterre et Vltalie, d'une part, et le Vinizuela, d'autre part, published by the International Bureau, The Hague, 1904; Scott, , Hague Court Reports, p. 55 Google Scholar

41 One or more of the protocols of May 7, 1903, were adhered to by the United States, Belgium, France, Mexico, Netherlands, Spain, and Sweden and Norway.

42 The text is to be found in the Recueil des Actes et Protocoles, not consecutively paged.

43 Recueil des Actes et Protocoles concemant le litige entre I'Allemagne, la France et la Grande- Bretagne, d'une part, et le Japon, d'autre part, published by the Bureau International de la Cour Permanente d'Arbitrage, The Hague, 1905; Scott, , Hague Court Reports, p. 77 Google Scholar.

44 The protocol was signed in French on behalf of France and Japan, in German on behalf of Germany and Japan, in English on behalf of Great Britain and Japan, and in Japanese on behalf of the four states.

45 Recueil des Actes et Protocoles concemant le Diffèrend entre la France et la Grande-Bretagne, published by the Bureau International de la Cour Permanente d'Arbitrage, The Hague, 1905; Scott, , Hague Court Reports, p. 93.Google Scholar

46 The award was published by the International Bureau. See also Scott, , Hague Court Reports, p. 110.Google Scholar

47 Rapport du Cornell Administratif, 1910, p. 15

48 Scott, , Hague Court Reports, p. 120.Google Scholar

49 Recueil des comptes rendus de la visite des lieux et des Protocoles des séances du Tribunal arbitral, constitué en vertu de la Convention du 14 mars 1908, pour juger la question de la délimitation d'une certaine partie de la frontière maritime entre la Norvège et la Suède, published by the Bureau International de la Cour Permanente d'Arbitrage, The Hague, 1909; Scott, , Hague Court Reports, p. 121.Google Scholar

The current Rapport du Conseil administratif lists this case with an indication that it was before a special arbitral tribunal.

50 See, however, the Rapport du Conseil Administratif, 1910, p. 15.

51 The protocols are to be found in North Atlantic Coast Fisheries, Tribunal of Arbitration constituted under a Special Agreement signed at Washington, January 27,1909, between the United States of America and Great Britain, published by the Permanent Court of Arbitration, The Hague, 1910. More complete proceedings, including documents presented to the tribunal, were published in 12 volumes, U. S. Sen. Doc. No. 870, 61st Cong., 3d sess. See also, Scott, , Hague Court Reports, p. 141.Google Scholar

52 Great Britain has not ratified the Hague Convention of 1907.

53 Scott, , Hague Court Reports, p. 221.Google Scholar

54 Protocoles des Séances du Tribunal d'Arbitrage constitué en exécution du compromis signé entre les Ètats Unis d'Amerique et les Ètats Unis de Véézuela le février 1909, published by the Bureau International de la Cour Permanente d'Arbitrage, The Hague, 1910. Official English translations of the protocols and the award were published by the Bureau. See also Scott, , Hague Court Reports, p. 226.Google Scholar

55 Venezuela has not ratified the Hague Convention of 1907.

56 Protocoles des Séances et Sentence du Tribunal d'Arbitrage entre la France et la Grande-Bretagne, published by the Bureau International de la Cour Permanente d'Arbitrage, The Hague, 1911; Scott, , Hague Court Reports, p. 275.Google Scholar

57 Rapport du Conseil Administratif, 1911, p. 17.

58 Protocoles des Séances et Sentence du Tribunal d'Arbitrage constitut en exécution du compromis signt entre l'Italie et le Pérou le SO avril 1910, published by the Bureau International de la Cour Permanente d'Arbitrage, The Hague, 1912; Scott, , Hague Court Reports, p. 284.Google Scholar

59 Neither Italy nor Peru has ratified the Hague Convention of 1907.

60 Protocoles des Séances et Sentence du Tribunal d'Arbitrage constitut en vertu du compromis (['arbitrage signt a Constantinople entre la Russie et la Turquie le 82 juiUet/4 aoffl 1910, published by the Bureau International de la Cour Permanente d'Arbitrage, The Hague, 1912; Scott, , Hague Court Reports, p. 297.Google Scholar

61 This convention had not been ratified by Turkey.

62 For this reason, the tribunal is listed as a “ special arbitral tribunal” in the annual reports of the Administrative Council.

63 Compromis, Protocoles des Séances et Sentences du Tribunal d'Arbitrage Franco-Italien, published by the Bureau International de la Cour Permanente d'Arbitrage, The Hague, 1913; Scott, , Hague Court Reports, pp. 329 , 341.Google Scholar

64 Italy has not ratified the Hague Convention of 1907

65 Scott, , Hague Court Reports, pp. 413 , 616.Google Scholar

66 Id., pp. 419, 621

67 Id., pp. 421, 622.

68 Rapport du Conseil Administratif, 1914, p. 13.

69 Sentence Arbitrale rendue en exécution du compromis signé a La Haye le 3 avril 1913 entre les Pays Bas et le Portugal, published by the Bureau International de la Cour Permanente d'Arbitrage, Neuchatel, 1914; Scott, , Hague Court Reports, pp. 354 , 574.Google Scholar

70 Compromis, Protocoled des Séances et Sentence du Tribunal d'Arbitrage entre la Grande-Bretagne, l'Espagne et la France et Portugal, published by the Bureau International de la Cour Permanente d'Arbitrage, The Hague, 1921; Scott, , Hague Court Reports (2 ser.), p. 1.Google Scholar

71 Great Britain and Spain had not ratified the Convention of 1907.

72 “ The Governments of France and Great Britain appear to have reached an agreement with Portugal upon the form and extent of the award to be entered in behalf of their subjects or citizens.” Scott, James Brown, in this Journal , Vol. 15 (1921), p. 73.Google Scholar

73 Compromis, Protocoles des Séances et Sentence du Tribunal d'Arbitrage entre la France et le Pérou, published by the International Bureau of the Permanent Court of Arbitration, The Hague, 1921; Scott, Hague Court Reports (2 ser.), p. 31.Google Scholar

74 Peru has not ratified the Convention of 1907.

75 Proceedings of the Tribunal of Arbitration between the United States of America and Norway, published by the International Bureau, The Hague, 1922; Scott, Hague Court Reports (2 ser.) p. 39.Google Scholar

76 Annex to the Protocols of the United States-Norway Arbitration Tribunal, p. 161.

77 A note in this Journal , Vol. 17 (1923), p. 399, signed “ C. P. A.,” states that the letters from Mr. Anderson were “ delivered when the award was announced,” and that he was denied the privilege of filing a dissenting opinion.

78 Rapport du Cornell administratif, 1922, p. 12.

79 For protest by the Secretary of State of the United States, see his letter to the Norwegian Minister at Washington, Feb. 6, 1923, this Journal , Vol. 17 (1923), pp. 287-289.

80 Arbitral award rendered in conformity with the special agreement concluded on January 23,1925 between the United States of America and the Netherlands, published by the International Bureau of the Permanent Court of Arbitration, 1928; Scott, Hague Court Reports (2 ser.) p.83 Google Scholar

81 81 Compromis, Protocoles des Séances et Sentence du Tribunal d'Arbitrage constitué en vertu du compromis signé à Londres le 4 mars 1930 entre la France et le Royaume-uni de Grande- Bretagne et d'lrlande du Nord, distributed by the Bureau International de la Cour Permanente d'Arbitrage (not printed).

82 Letter of the Secretary-General of the Permanent Court of Arbitration, March 22,1932.

83 Hudson, Manley 0. , “ The Chevreau Claim between France and Great Britain,” this Journal , Vol. 26 (1932), p. 804.Google Scholar

84 Arbitral Decision rendered in conformity with the special agreement concluded on December 17, 1930 between the Kingdom of Sweden and the United States of America (no place, no date). The record of proceedings and a photographic reprint of the arbitral decision have been published by the U. S. Department of State, Publication No. 402, in the Arbitration Series No. 5 (6).

85 The following observation by Mr. Choate at the Second Peace Conference in 1907 still holds true:“ The present Permanent Court has not gone far in the direction of establishing and developing international law. Each case is isolated, lacking both continuity and connection with the other.” Scott, , Proceedings of the Hague Peace Conferences, 1907, II, p. 596 Google Scholar.

86 For a severe criticism of the earlier awards, see Wehberg, The Problem of an International Court of Justice (translation by Charles G. Fenwick, 1918), pp. 29 ff.

87 See the excellent digest of the awards, in Fontes Juris Gentium, Series A, Sec. 1, Vol. 2.

88 The Island of Palmas arbitration between the United States of America and the Netherlands.

89 The Chevreau Claim arbitration between France and Great Britain, and the Shipping Claims arbitration between the United States of America and Sweden.

90 Records of the First Assembly, Committees, I, p. 514

91 Id., p. 526.