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Political Arbitration under the General Act for the Pacific Settlement of International Disputes*

Published online by Cambridge University Press:  12 April 2017

Miroslas Gonsiorowski
Miroslas Gonsiorowski*
Affiliation:
Institut des Hautes Etudes Internationales; New York University, 1931
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Extract

The General Act for the Pacific Settlement of International Disputes, signed at Geneva, September 26, 1928, is intended to provide for the final settlement of every dispute, of whatever nature it may be. Chapter II is evoted to legal disputes, while Chapter III, Articles 21-28, lays down rules concerning the settlement of non-legal disputes. This idea of a recourse to arbitration for the settlement of purely political conflicts, which Chapter III puts forward, may appear to be inconsistent with a long evolution which has tended to emphasize the judicial character of arbitration. It is true that occasionally states have submitted such conflicts to an arbitral tribunal, but it is for the first time that a provision to this effect has been inserted in a multipartitetreaty. A treaty of this kind has a legislative character and exercises a great influence upon the development of international law. The importance of the General Act is all the greater since some twenty states, including three great Powers, have already ratified it. This treaty, which may be compared only to the Hague Convention,could largely contribute to a revision of the common conception of arbitration. Does it attempt to do so, or is it rather intended to leave this conception unchanged and to create a new method of pacific settlement? In either case, how should the new conception of arbitration be defined? Since purely political disputes cannot be settled by the application of a rule of law, are the powers of the tribunal unlimited? These questions deserve closer consideration, especially since the relevant provisions of Chapter III of the General Act have already inspired certain opinions which, it is believed, are not only contrary to the true meaning of this treaty, but also,if generally adopted, would destroy the very foundations of international arbitration. Now, one of the essential ideas underlying the General Act is not to impair in the least what has already proved useful, but to develop the existing means for the pacific settlement of disputes. Chapter III constitutes an important step forward. Its evolutionary character and its exact meaning can best be realized in the light of the practice of statesand of the jurisprudence of arbitral tribunals.

Type
Research Article
Information
American Journal of International Law , Volume 27 , Issue 3 , July 1933 , pp. 469 - 490
Copyright
Copyright © American Society of International Law 1933

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Footnotes

*

Printed in Supplement to this Journal, Vol. 25 (1931), p. 204. Research on this subject has been carried on under the Harvard and Radcliffe College Bureau of InternationalResearch.

References

1 It should be observed that the English text of Art. 21 of the General Act adopted by the Assembly contained the words “ may . . . be brought before an arbitral tribunal.” (See League of Nations, Resolutions and Recommendations adopted by the Assembly during its Ninth Ordinary Session, p. 22. See also Document C. 537. M. 164. 1928. IX.) These words, however, were not in harmony with the corresponding expression in the French text: “ aeront port^a . . . devant un tribunal arbitral.” In his note of May 1,1929, to the members of the League of Nations, the Secretary-General pointed out that a slip had been made in the English text and that the term “ shall” should be substituted for the term “ may.” He added that this correction had been inserted in the Records of the Assembly and that it would be made in the subsequent editions of the General Act. (See Document C. 537. M. 164. 1928. IX. Erratum.) The text of the General Act published in the League of Nations Treaty Series, contains in Art. 21 the word “ shall” instead of “ may.”

2 It has been contended that the term “ conflicts of interests” is misleading inasmuch as every dispute between states implies such a conflict. The only difference between legal and non-legal disputes is that certain interests are protected by international law while the others are not. See Strisower, Der Krieg und die Volkerrechtsordnung, Wien, 1919, p. 62; Triepel, Staatsrecht und Politik, Berlin, 1927, p. 37; Mulder, “ L'arbitrage international et les diffSrends politiques,” Revue de Drop, International, Genève, 1925, p. 84; Yerzijl, “ La classification des dif(rends internationaux et la nature du litige anglo-turc relatif au vilayet de Mossoul," Revue de Droit International et de Legislation Comparee, 1925, p. 733; Rousseau, “ Les travaux du ComiU d'arbitrage et de sicuriU et Vinterpretation du pade de la SoctiU des Nations,” Revue Generate de Droit International Public, 1928, p. 384; Morgenthau, Die intemationale Rechtspflege, ikr Wesen und ihre Grenzen, Leipzig, 1929, p. 43. This contention is not without foundation. However, similar arguments can be advanced against all the other terms. In point of fact the term “ political conflicts” or “ non-legal conflicts” would seem also inadequate, because such conflicts may always involve a legal issue. The term “ conflicts of interests ' ' is used in this connection as connoting interests which are not protected by international law.

3 See, for instance, Fauchille, Traié de droit international public, Paris, 1926,1, 3e partie, p. 544; Radulesco, Les solutions pacifiques internationales 'La mediation et Varbitrage, Paris, 1922, p. 49.

4 Wehberg, The Problem of an International Court of Justice, Oxford, 1918, p. 39. As far as the present writer is aware, Dr. Wehberg's criticism has not been shared by any other authority

5 Referring to the Hague definition of arbitration, certain authorities have contended that arbitrators who decide “ on the basis of respect for law” are not bound to base their decisions upon strictly juridical considerations, and that an arbitral tribunal is equitable, not legal. Undoubtedly the above definition may give rise to difficulties of interpretation which unfortunately cannot be removed by a recourse to the preparatory work. In fact, a perusal of the records of the conference fails to disclose the intention of states. The definition in question, which was drafted by the rapporteur, Baron Descamps, was adopted by the conference without discussion. However, it may be observed that this definition is not inconsistent with the judicial character of arbitration. A court which settles a dispute by the application of a rule of law does obviously decide on the basis of respect for law. Moreover, the members of an arbitral tribunal are “ judges” under the above definition. Finally, Art. 16 (Art. 38 of the Convention of 1907) refers to arbitration “ questions of a legal nature.” It must be added that during the discussion in the Committee of Jurists which framed the Statute of the Permanent Court of International Justice, the President of the Committee, Baron Descamps, explained as follows the meaning of the definition which he had submitted to the Hague Conference: “ The proper object of arbitration is not in itself different from the proper object of the judiciary function. The first Peace Conference made that clear in clause 15 of the Convention for the Pacific Settlement of International Conflicts, which contains a definition which has become classical. ” Procte-Verbaux of the Proceedings of the Committee, The Hague, 1920, p. 47. This conception of arbitration has been adopted by the Permanent Court of International Justice. In the Mosul case the court held that the Hague definition was not applicable to the case before it, because “ the settlement of the dispute in question depends, at all events for the most part, on considerations not of a legal character.” Collection of Advisory Opinions. Series B, No. 12, p. 26.

The strictly judicial character of arbitration has been stressed by many authorities. Says Judge Moore: “ As it has fallen to my lot to make perhaps a more extensive examination than any one else has done of the actual records of international arbitrations, I may venture to say that the conclusions reached by the investigators just cited completely coincide with my own. I have failed to discover support for the supposition that international arbitrators have shown a special tendency to compromise, or that they have failed to apply legal principles or to give weight to legal precedents.” International Adjudications, New York, 1929,1, p. lxxxix. See also International Law and Some Current Illusions, New York, 1924, p. 96; American Diplomacy, New York, 1905, p. 200. Ralston, International Arbitration from Athens to Locarno, 1929, p. 24; The Law asd Procedure of International Tribunals, 1926, p. xxxvi; Lauterpacht, Private Law Sources and Analogies of International Law, London, 1927, p. 64; Stoykovitch, De Vautorite de la sentence arbitrale en droit international public, Paris, 1924, p. 64; Kaufmann, Die Fortbildung der internationalen Schiedsgerichtsbarkeit seit dem Weltkrieg besonders dutch den Locarno-Pakt, Leipzig, 1927, p. 1; Lammasch, “ Die Lehre von der Schiedsgerichtsbarkeit in ihrern ganzen Umfange,” Handbuch des Volkerrechts, Stuttgart, 1914, p. 177; Hedges, The Juridical Basis of Arbitration, British Year Book of International Law, 1926, p. 119; Fauchille, op. dt., p. 534; Brierly, The Law of Nations, Oxford, 1928, p. 176.

6 Moo, International Arbitrations, Washington 1898v p.4793In this case, however, the arbitrator did not find it necessary to use the extensive powers given him by the special agreement, and decided wholly in favor of Portugal.Google Scholar

7 According to Art. 2 of the special agreement concluded between Great Britain and Portugal on Sept. 25,1872, the award of the arbitrator, “ whether it be wholly in favor of the claim of either party or in the nature of an equitable solution of the difficulty, shall be regarded as absolutely final and conclusive.” Lafontaine, Pasicrisie Internationale, Berne, 1902, p. 170. In this case also the arbitrator found the legal titles sufficiently clear and upheld the claims of Portugal

8 The convention of April 28, 1889, concluded between Prance and the Netherlands, authorized the arbitrator to fix, as an intermediary solution (solution intermediaire), a boundary different from those which were claimed by the parties. Lafontaine, op. cit., p. 328. Darby, International Tribunals, London, 1904, p. 815. The award was given in favor of the Netherlands, but without prejudice to rights of French settlers in the disputed territory.

9 Under Art. 3 of the treaty of Nov. 6, 1901, between Great Britain and Brazil,“ the arbitrator shall be requested to investigate and ascertain the extent of the territory which, whether the whole or a part of the zone described in the preceding article, may lawfully be claimed by either of the high contracting parties.” Hertslet, Commercial Treaties, XXIII, p. 310. In his award of June 6,1904, the King of Italy pointed out that it could not be decided with certainty whether the right of Brazil or Great Britain was the stronger. He decided that the disputed territory should be divided. Hertslet, op. cit., XXIV, p. 173. For a criticism of this award see Fauchille, Le conflit de limites entre le BrSsil et la Grande Bretagne et la sentence arbitrate du roi d'ltalie, Paris, 1905, especially p. 115 et seq.; Lapradelle et Politis,“ L 'arbitrage anglo-bresilien de 1904,” Revue du droit public, 1905, p. 328.

10 Under the convention concluded on April 10,1897, between France and Brazil, the arbitrator should either uphold the claim of one of the parties or adopt an “ intermediary solution.” De Clercq, Recueil des traites de la France, XXI, p. 51. See the text of the award in De Clercq, op. cit., XXI, p. 701. There are also other cases which may be referred to in this connection, e.g., the boundary dispute between Bolivia and Peru. Under Art. 4 of the treaty of Dec. 30,1902, “ whenever the royal acts and dispositions do not define the dominion of a territory in clear terms, the arbitrator shall decide the question according to equity, keeping as near as possible to the meaning of those documents and to the spirit which inspired them,” this Journal , Vol. 3 (1909), Supp., p. 383.

11 Moore, op. cit., I, p. 801.

12 Moore, op. cit., I, p. 945

13 The United States gave effect to the award by the proclamation of President Cleveland of April 9, 1894. Martens, Nouveau Recueil General, 2e série, XXIII, p. 557. Great Britain carried it out by the Behring Sea Award Act of April 23, 1894. Hertslet, op. cit., XIX, p. 925. This act modified substantially the Merchant Shipping Acts of 1854 and 1876.

14 Hertslet, op. cit., XXVI, pp. 1088, 1115; XXVII, p. 1095.

15 This Journal , Vol. 17 (1923), Supp., p. 11. See also this Journal(1925), p. 393; 1926, p. 605.

16 Politis, “ La convention consulaire gréco-turque et Varbitrage des ambassadeurs des grandes puissances A Constantinople,” R. G. D. I. P., 1902, p. 202; 1903, p. 69. There are other cases of non-judicial arbitration, such as the case of the partition of the state of Seyid-Said, in which the arbitrator settled a purely political conflict. Lapradelle-Politis, Recueil des arbitrages internationaux, Paris, 1923, II, p. 55.

17 League of Nations Treaty Series, 1922, IX, p. 205. The decision of the Council of Sept. 19, 1922, settled the dispute finally. League of Nations Official Journal, 1922, No. 11, II, pp. 1196, 1315

18 18 League of Nations Official Journal, 1921, No. 9, p. 982.

19 Id., 1921, No. 10-12, p. 1221. The Supreme Council carried into effect the recommendations of the Council of the League. Op. cit., 1921, No. 10-12, p. 1226.

20 Id., 1923, No. 11, p. 1472. Certain difficulties arose between the parties as to whether the frontier in the Jaworzyna district was or was not determined by the decisions of the Supreme Council and of the Conference of Ambassadors. The question having been submitted for an advisory opinion to the Permanent Court of International Justice, the court held that the dispute was finally settled. Collection of Advisory Opinions, Series B, No. 8.

21 21L. N. O. J., 1924, No. 7, p. 1007. Publications of the Permanent Court of International Justice, Collection of Advisory Opinions, Series B, No. 9; Series C, No. 5, II.

22 Collection of Advisory Opinions, Series B, No. 12, especially p. 26 et seq. See also Series B, No. 8, pp. 29, 38 (the Jaworzyna case), and Series B, No. 9, p. 15 (the Monastery of Saint-Naoum case).

23 Annuaire de I'lnstitvt de droit international, 1927, II, p. 762. This term has been adopted also by other authorities. See Rolin, “ L’arbitrage et le comite de securiU de la Sodete des Nations,” R. D. I. L. C., 1927, p. 605; Schindler, “ Les progrbs de I’arbitrage international depuis la criation de la SodeU des Nations,” Recueil des cours de I’Acad de droit international de la Haye, 1928, V, p. 238; Borel, “ Quelques aspects de I’Acte general de Geneve,” Académie diplomatique Internationale, Seances et travaux, 1930, p. 85. The present writer has pointed to the advisability of making a distinction between the two kinds of arbitration and has suggested the term “ diplomatic arbitration.” Sodete des Nations et Problbme de la Paix, Paris, 1927,1, p. 385. The term “ political arbitration,” which has since been proposed, expresses the same idea and may be adopted in view of the fact that it has already become familiar.

24 The case of the United States was much stronger from the standpoint of absolute equity than from the standpoint of positive law. Consequently, in the arguments of the United States great stress was laid on the former standpoint. Mr. Carter made as strong a case for the application of the law of nature as has ever been made before an arbitral tribunal. Fur Seal Arbitration. Proceedings of the Tribunal of Arbitration, Washington, 1895, IX, p. 1. The British counsel, Sir Charles Russell, took issue with Mr. Carter and observed that it was an extraordinary proposition that the moral law and the law of nature were two terms interchangeable with international law. Op. cit., XIII, p. 8. It is interesting to add that after the award was signed, the American member of the tribunal, Senator Morgan, made a declaration in which he criticized the attitude of the other members who considered that the questions “ were to be decided upon the existing state of the law, and, finding no existing precedent in the international law, they did not feel warranted in creating one.” Op. dt., I, p. 72.

25 SirWilliams, John Fischer Model Treaties for the Pacific Settlement of Disputes,Journal of the Royal Institute of International Affairs 1928WashingtonNo. 6, p. 411. Brierly, The General Act of Geneva B. Y. I. L.,1930p.125 Google Scholar

26 Ascher, Wesen und Grenzen der intemationalen Schiedsgerichtsbarkeit und Gerichtsbarkeit ate Grundlage fur das Volkerrecht der Zukunft, Leipzig, 1929, pp. 1, 32, 66.

27 Schindler, loc. cit., p. 340

28 Lammasch, loc. cit., pp. 9, 51.

29 The Geneva Protocol of 1924 implies the idea of political arbitration. But it does not make any attempt whatever to define this idea and rests apparently upon a confusion as to the precise nature of arbitration. Moreover, it has not entered into force.

30 The court said that the freedom to base its decision on considerations of expediency “ being contrary to the proper function of the court, could in any case only be enjoyed by it if such freedom resulted from a clear and explicit provision, which is not to be found in the special agreement.” Op. cit., p. 11. It follows a contrario that, subject to the existence of such a provision, the court is free to decide on the basis of expediency. See, however, the observations of Judge Kellogg, op. cit., p. 29

31 The question was examined at length by the Institute of International Law in 1927. All the members of the X lVth Committee which dealt with this question pointed emphatically to the danger which would result for the Court if the latter's decisions were not taken on a strictly legal basis. They considered unanimously that states should never take advantage of the last provision of Art. 38 of the Statute. See the report by Messrs. de la Barra and Mercier, “ Procedure arbitrate,” Annuaire de I'lnstitut de droit international, 1927, II, p. 577. See also Strupp, Das Recht des internationalen Richters nach Billigkeit zu entscheidm, Leipzig, 1930, p. 117; Scott, Sovereign States and Suits before Arbitral Tribunals and Courts of Justice, New York, 1925, p. 245; Brown, La conciliation intemationale, Paris, 1925, p. 59; Ascher, op. cit., pp. 32, 66; Schindler, loc. cit., p. 291; Thieme, Die Fortbildung der internationalen Schiedsgerichtsbarkeit seit dern Weltkrieg, Leipzig, 1927, pp. 22, 55; Muuls, “ Le traits de conciliation entre la Belgique et la Suisse,” R. D. I. L. C., 1926, p. 393.31 See, however, Loder, “ La difference entre V arbitrage international et la justice intemationale,” Bulletin de VInstitut intermMiaire international, 1923, p. 278; Hostie, “ Differ ends justiciables et non-justiciables,” R. D. I. L. C., 1928, p. 584; Borel et Politis, “ L'extension de I'arbitrage obligatoire et de la competence obligatoire de la Cour permanente de Justice intemationale,” Annuaire de VInstitut de droit international, 1927, II, p. 690. In his observations on the court's order of Dec. 6, 1930, concerning the Free Zones case, Judge Kellogg denounced with a great wealth of arguments the idea of the court deciding purely political questions upon considerations of expediency. He contended that the court could not do so even with the consent and at the request of the parties. Series A, No. 24, p. 29 et seq. This latter opinion, however, is at variance with the Statute and the jurisprudence of the court. See on this point Roden, “ La competence de la Cour Permanente, ” R. D. I. L. C., 1931, p. 757.

32 E. g., Italy-Switzerland, treaty of Sept. 20, 1924, Art. 15 (L. N. T. S., XXXIII, p. 93); Roumania-Switzerland, treaty of Feb. 3, 1926, Art. 14 (L. N. T. S., LV, p. 93).

33 The last sentence of Art. 21 provides that the disputes in question shall “ be brought before an arbitral tribunal which, unless the parties otherwise agree, shall be constituted in the manner set out below.” The expression “ unless the parties otherwise agree” refers only to the organization of the tribunal, and can hardly be interpreted as authorizing the parties to submit their dispute by common agreement to the court. If such an agreement took place, the court should decline jurisdiction and should remind the parties of their obligations under the General Act to submit the dispute to arbitration.

34 No uniform method has been developed in practice as regards the appointment of arbitrators in the event of a disagreement between the parties. Such appointments are made either by a permanent commission of conciliation (Germany-Switzerland, treaty of Dec. 3, 1921, Art. 8, L. N. T. S., XII, p. 281), or by the president of the Permanent Court of International Justice (treaty between Estonia, Finland, Latvia, and Poland, Jan. 17, 1925, Art. 19, L. N. T. S., XXXVIII, p. 359), or by the head of a state like the President of the United States (Poland-Switzerland, treaty of March 7, 1925, Art. 14, L. N. T. S., L, p. 263), the President of the Swiss Federal Council (Czechoslovakia-Poland, treaty of April 23, 1925, Art. 15, L. N. T. S., XLVIII, p. 385), or the Queen of the Netherlands (France-Switzerland, treaty of April 6, 1925, Art. 15, Message du Conseil federal suisse, 1925, No. 1976), or in accordance with Art. 45 of the Hague Convention of 1907 (Denmark-Finland, treaty of Jan. 30, 1926, Art. 3, L. N. T. S., LI, p. 378).

35 The question of a speedy constitution of the tribunal is much more important than it may appear at first sight. One of the consequences of the General Act, a consequence which unfortunately has not been contemplated either by the Committee on Arbitration and Security or by the Assembly of the League of Nations, is that this treaty will make impossible the application of Art. 15 of the Covenant. In fact, according to Art. 15, a dispute may be brought before the Council only in case it is not submitted to arbitration or judicial settlement. It follows, and this is the unanimous opinion of all commentators upon the jurisprudence of the League of Nations, that if under a treaty of compulsory arbitration a dispute must be referred to an arbitral tribunal, neither party has the right to invoke Art. 15 and to have recourse to the Council. The latter would sanction a violation of this treaty if it tookjurisdiction of the dispute. Its duty would be to remind the parties of their obligations and to urge them to follow the procedure laid down in the treaty in question. It must be borne in mind that the Optional Clause of Art. 36 of the Statute of the court, and treaties providing for compulsory arbitration of legal disputes, do not impair the powers of the Council, but assign to this body a r61e which is perfectly in harmony with the spirit of the Covenant. The Council, indeed, may intervene under Art. 15 to settle political conflicts, that is to say, conflicts which are most likely to lead to war. Such conflicts, however, must be submitted to arbitration according to Chap. I l l of the General Act. Consequently, no dispute may be brought before the Council under Art. 15. Such a state of affairs is dangerous for the League of Nations and for the cause of peace. One of the remedies would be to simplify the provisions of Art. 23 of the General Act and to make possible a prompt constitution of the tribunal. The latter could immediately lay down provisional measures and would be able to render its award within the shortest time. However, it does not seem that in so far as the maintenance of peace is concerned, an arbitral tribunal could act as effectively as the Council or the Assembly of the League of Nations. Now, the League would be unable to use the wide powers conferred upon it by Art. 15. It is necessary, therefore, to amend the Covenant to the effect that the obligation of the parties to have recourse to arbitration does not prevent the League from intervening under Art. 15 in order to maintain or reestablish peace. According to the amendment in question, the merits of the dispute would be dealt with exclusively by the tribunal to which it has been referred. In case the relations between the parties become so strained that there is a danger of war, the Council would have the right to take the necessary measures merely for the purpose of preventing an actual outbreak of hostilities. The merits of the dispute would be settled by the tribunal, not by the Council.

36 Poland-Switzerland, treaty of March 7, 1925, Art. 15 (L. N. T. S., L, p. 263).

37 Germany-Switzerland, treaty of Dec. 3, 1921, Art. 8 (L. N. T. S., XII, p. 281).

38 Belgium-Finland, treaty of March 4, 1927, Art. 17 (L. N. T. S., LXIX, p. 363).

39 Argentina-Switzerland, treaty of Nov. 17,1924, Art. 3 (Message du Conseil federal suisse 1925, No. 1938).

40 Great Britain-United States, treaty of Aug. 18,1910, Art. 7 (Malloy, Treaties and Conventions, III, p. 2619).

41 Argentina-Brazil, treaty of Sept. 7,1905, Art. 10 (Manning, Arbitration Treaties among the American Nations, New York, p. 357).

42 United States-Venezuela, treaty of Dec. 5, 1885, Art. 6 (Malloy, op. cit., II, p. 1858).

43 Great Britain-United States-Portugal, treaty of June 13, 1891, Art. 1 (Malloy, op. dt., II, p. 1460).

44 Great Britain-Portugal, treaty of Sept. 25, 1872, Art. 2 (Lafontaine, op. dt., p. 170).

45 France-Brazil, treaty of April 10, 1897, Art. 2 (De Clercq, op. dt., XXI, p. 51).

46 Sometimes no particular term is used in a treaty which confers such a power upon a tribunal. See Art. 7 of the treaty between the United States and Great Britain of Feb. 29, 1892 (Malloy, op. dt., I, p. 746 et seq.). The award in the Cayuga Indians case enumerates many treaties of this kind. This Journal , Vol. 20 (1926), p. 574

47 An examination of cases shows that arbitral tribunals have not interpreted such a difference in the terms as implying a difference in powers. See infra.

48 E.g., treaty between Denmark and Sweden of Jan. 14, 1926, Art. 2 (L. N. T. S., LI, p. 257).

49 E.g., treaty between Denmark and Belgium of March 3, 1927, Art. 17 (L. N. T. S., LXVII, p. 119).

50 This Journal , Vol. 17 (1923), p. 384. It may be observed that in this ease the tribunal regarded the term “ equity” as a synonym of the term “ justice.” See the letter of the Secretary of State of the United States to the Norwegian Minister, Feb. 26,1923, transmitting a draft in payment of the award, but declaring that the United States Government cannot accept certain apparent bases of the award as being declaratory of international law or as limiting upon the United States as a precedent. Loc. cit., pp. 287-289.

51 Id., Vol. 20 (1926), p. 586.

52 Supra, note 6.

53 Supra, note 7.

54 Supra, note 8.

55 G. G. Wilson, The Hague Arbitration Cases, Boston, 1915, p. 223.

56 E.g., the protocol of Feb. 17, 1903, between the United States and Venezuela, Art. 1. Ralston, Venezuelan Arbitrations of 1903, Washington, 1904, p. 2.

57 Ralston, op. cit., p. 23.

58 Ralston, op. cit., p. 26.

59 Ralston, op. cit., p. 666, especially pp. 689-692. See also the Mazzei case, ibid., p. 693. It must be pointed out that a different principle was laid down by Umpire Gutierrez-Otero in the Padron case (ibid., p. 928), and in the Mena case (ibid., p. 932). However, his view that the commission had “ absolute liberty for a decision” was rejected by the Permanent Court of Arbitration, which held in the Orinoco Steamship Company case that the protocols of 1903 “ did not invest the arbitrators with discretionary powers.” Wilson, op. cit., p. 223.

60 See Lauterpacht, “ The Absence of an International Legislature and the Compulsory Jurisdiction of International Tribunals,” B. Y. I. L., 1930, p. 151

61 Moore, International Arbitrations, I, p. 549.

62 Moore, op. cit., V, p. 5018.

63 Publications of the P. C. I. J., Series C, No. 16, III, p. 292.

64 The same power was conferred upon arbitral tribunals in several other cases, e.g., the Behring Sea case, supra, p. 473.

65 Art. 5 of the treaty of Aug. 29, 1924, between Germany and Sweden provides: “ If the parties agree, the tribunal may, instead of basing its decision on legal principles, give an award in accordance with considerations of equity.” L. N. T. S., XLII, p. 125.

66 Certain writers have contended that the tribunal which is empowered to settle a dispute according to law and equity is free to disregard positive law. Habicht, Post-War Treaties for the Pacific Settlement of International Disputes, Cambridge, 1931, p. 1053. Similarly, Schindler, op. cit., p. 340. Such a contention, however, is at variance with well-established jurisprudence of arbitral tribunals and with the dominant opinion of authorities.

67 Art. 32 of the model convention A. Minutes of the Third Session of the Committee on Arbitration and Security. Document C. 358. M. 112. 1928. IX, p. 65.

68 League of Nations, Records of the Ninth Ordinary Session of the Assembly. Plenary Meetings, p. 182.

69 It should be observed that the question of the rdle of equity in international arbitration has not attracted much attention in the science of international law. While dealing with this question in passing, writers have often neglected carefully to examine the relations between equity and law. They have confined themselves to some particular cases, or have drawn conclusions from abstract theories which, upon a closer analysis, prove to be without foundation. Thus Dr. Lauterpacht considers that the right conferred upon a tribunal to decide ex aequo et bono is tantamount to the right to depart from law and that, consequently, Chapter III of the General Act implies a strange contradiction because, on the one hand, the tribunal must respect law but, on the other hand, enjoying the right to decide ex aequo et bono, it may disregard law. This opinion, which is contrary to the jurisprudence of arbitral tribunals in the various cases just examined, constitutes a logical consequence of the theory to which Dr. Lauterpacht has devoted his lectures at the Hague Academy of International Law, and according to which every dispute can be settled on a legal basis, even those disputes for the settlement of which international law does not provide any rule. In the absence of such a rule, the tribunal would not pronounce a non liquet, but would simply dismiss the claim and so would determine the rights of the parties under international law. A modification of these rights by a decision ex aequo et bono would constitute a departure from law. “ La tMorie des dijferends non justiciables en droit international,” Recueil des cours de I'AcadSmie de droit international de la Haye, 1930. Such a theory, however, can hardly be accepted. See on this point, infra, p. 488.

70 Berliner Tageblatt, July 18, 1929; Annuaire de VInstitut de droit international, 1929, II, p. 172; “ La revision du pacte de la Societe des Nations,” Revista de Drept International, 1930, No. 1, p. 43. Similarly, Verdross, “ Die Generalakte der IX. VSlkerbund-Versammlung,” Die Friedenswarte, Sept., 1929, p. 268; Annuaire de VInstitut de droit international, 1929, II, p. 173.

71 Brierly, “ The General Act of Geneva,” loc. cit. This question has been dealt with at length by Dr. Lauterpacht, who has contended that the distinction between justiciable and non-justiciable disputes is erroneous, and that every dispute can be settled on a legal basis. In case there is no rule of law applicable to the dispute, the claim will be dismissed. “ La thiorie des differeruls non justiciables en droit international,” loc. cit., especially Chapters III and IV.

72 See also Sir John Fischer Williams, “ Model Treaties for the Pacific Settlement of Disputes,” loc. cit.

73 See, for instance, League of Nations, Records of the Ninth Ordinary Session of the Assembly. Minutes of the First Committee, p. 77.

74 Without attempting in this connection to define matters of domestic jurisdiction, it must be pointed out that all definitions which have been suggested are based, more or less, upon the definition given by the Permanent Court of International Justice in the Nationality Decrees case. The court said: “ The words ‘ solely within the domestic jurisdiction’ seem rather to contemplate certain matters which, though they may very closely concern the interests of more than one state, are not, in principle, regulated by international law. As regards such matters, each state is sole judge.” Series B, No. 4, p. 23. This definition, however, can hardly be regarded as satisfactory. The court itself recognized it implicitly in the Lotus case. It held that, although the matter was not regulated by international law, nevertheless this matter was within the concurrent jurisdiction of both parties, and not within the exclusive jurisdiction of one of them, as it was claimed by France. Series A, No. 10, especially pp. 30-31.