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"TITLE III.-ON INTERNATIONAL COMMISSIONS OF INQUIRY.
"ARTICLE IX. In differences of an international nature involving neither honor nor vital interests, and arising from a difference of opinion on points of fact, the Signatory Powers recommend that the parties, who have not been able to come to an agreement by means of diplomacy, should as far as circumstances allow, institute an International Commission of Inquiry, to facilitate a solution of these differences by elucidating the facts by means of an impartial and conscientious investigation.
"ARTICLE X. The International Commissions of Inquiry are constituted by special agreement between the parties in conflict.
"The Convention for an inquiry defines the facts to be examined and the full extent of the Commissioners' powers.
"It settles the procedure.
"On the inquiry both sides must be heard.
"The form and the periods to be observed, if not stated in the inquiry Convention, are decided by the Commission itself.
"ARTICLE XI. The International Commissions of Inquiry are formed, unless otherwise stipulated, in the manner fixed by Article XXXII of the present convention.
"ARTICLE XII. The powers in dispute engage to supply the International Commission of Inquiry, as fully as they may think possible, with all means and facilities necessary to enable it to be completely acquainted with and to accurately understand the facts in question.
"ARTICLE XIII. The International Commission of Inquiry communicates its Report to the conflicting Powers, signed by all the members of the Commission.
"ARTICLE XIV. The report of the International Commission of Inquiry is limited to a statement of facts, and has in no way the character of an arbital award. It leaves the conflicting Powers entire freedom as to the effect to be given to this statement."
Convention for the Pacific Settlement of International Disputes, The
(1) A JUDICIAL METHOD.
According to present practice, the redress of national grievances may be pursued, first, by amicable methods; and, secondly, by force, Of amicable methods the most common is negotiation. There is nothing more conducive to the settlement of differences than a fair
and candid discussion of them. Where this fails, we may yet try arbitration or mediation.
These methods are often discussed as if they were practically the same, but in reality they are fundamentally different. Mediation is an advisory, arbitration a judicial, function. Mediation recommends, arbitration decides. While nations might for this reason accept mediation in various cases in which they might be unwilling or reluctant to arbitrate, it is also true that they have often settled by arbitration questions which mediation could not have a ljusted.
It is, for example, hardly conceivable that the question of the Alabama claims could have been settled by mediation. The same thing may be said of many and indeed of most of the great number of boundary disputes that have been settled by arbitration. The importance of mediation as a form of amicable negotiation should not be minimized. The Congress of Paris of 1856, as well as the Congo Conference of 1881, made a declaration in favor of the practice of mediation; and a formal plan of mediation forms part of the convention lately adopted at The Hague for the settlement of international disputes. Nevertheless, mediation is merely a diplomatic function and offers nothing new.
Arbitration, on the contrary, represents a principle as yet only occasionally acted upon, namely, the application of law and of judicial methods to the determination of disputes between, nations. Its object is to displace war between nations as a means of obtaining national redress, by the judgments of international judicial tribunals; just as private war between individuals, as a means of obtaining personal redress, has, in consequence of the development of law and order in civilized states, been supplanted by the processes of municipal courts. In discussing the subject of arbitration we are therefore to exclude from consideration, except as a means to that end, mediation, good offices, or other forms of negotiation.
“ It seems
that the commissioners under the claims convention between the three states formerly composing the original Republic of Colombia] consider their functions as partially if not exclusively diplomatic and not judicial. This we were not prepared to expect either by the convention under which they are acting or by the despatches of Mr. McAfee in relation to it. It was known that the main objects of that convention were to fix the proportion due from each of the states on account of the debts of Colombia, to constitute a board for hearing and deciding upon them and to prescribe the forms in which the proceedings of the board were to be conducted. According to all our previous experience in relation to such bodies, their functions were considered to be purely judicial in their nature. Not only all diplomatic action between those states themselves in rela
tion to the subjects of the convention was supposed to be finally concluded by it, but also to be suspended between them and such foreign nations as might be disposed to respect it, at least until those subjects had been judicially investigated and disposed of by the board. “La comision de ministros' is the phrase used in the convention when the board is mentioned. This, though literally "commission of ministers,' was, when the duties assigned were considered, interpreted as conveying in English the meaning of ‘board of commissioners.' In their communications to you the commissioners assume the titles of ministers plenipotentiary and Colombian assembly. As these titles are not authorized by the convention, it is reasonable to presume that they were used to inculcate the idea that the functions of the commissioners were designed to be exclusively diplomatic. It is true that the convention also stipulates that the commissioners shall be duly accredited and instructed. This, however, was construed to mean that they were severally to be furnished by the governments appointing them with evidence of their appointment and that the instructions which they were to receive were not designed to extend or alter the nature of their proceedings as prescribed by the convention itself. There is no article of the convention which requires the board to demand evidence of the agents of foreign creditors of their authority to represent their constituents.
Though in forming their governments the Spanish-American Republics have copied with considerable accuracy the Constitution of the United States, some of their constitutions are deficient in the precision with which that model defines the functions of the executive and judicial authority, and in none of them are the duties and powers of those departments as distinct and independent as they were intended to be made by our Constitution. There is also frequent occasion to remark that the public men of those countries do not appear to be aware how essential it is for all good government and especially for all claiming to be republican in theory and aiming to be so in practice, that neither the executive nor the judiciary should encroach upon the peculiar provinces the one of the other. In the course of the negotiation of a late convention with Mexico, Mr. Martinez, the Plenipotentiary of that Government, submitted a draft of articles one of which contained a stipulation that the commissioners of the two Governments to be appointed to hear and decide on the claims were to be duly instructed, etc. This was objected to by me as being incompatible with the peculiarly judicial functions of the commissioners, and the force of the objection was acknowledged, for the convention, as concluded, contains no stipulation of the character referred to."
Mr. Forsyth, Sec. of State, to Mr. Semple, chargé d'affaires to New
Granada, No. 7, Feb. 12, 1839, MS. Inst. Colombia, XV. 58.
Upon the refusal of the Government of Buenos Ayres to pay a debt to a citizen of the United States, which the Government of the United States claimed to be justly due, the minister of the United States at Buenos Ayres was instructed “to insist upon an arbitration to take place at this city” [Washington], and that the award of the arbitrators should be final. He was further instructed to say to the Government of Buenos Ayres “that any further delay on its part in facilitating and effecting its final settlement, will be regarded by the President as indicating but a slight disposition to do justice to a citizen of the United States, and to cultivate and promote the friendly relations which so happily subsist between the two Governments.”
Mr. Calhoun, Sec. of State, to Mr. Brent, Mar. 3, 1845, MS. Inst. Arg.
Rep. XV. 14.
“ This Department has for many years past adopted the policy of submitting to a disinterested arbitration claims of its citizens against other governments, when otherwise unable to agree upon an adjustment, and when no political reasons have interfered to prevent such submission, and when there has been no great principle of public law at issue.”
Mr. J. (. B. Davis, Act. Sec. of State, to Messrs. Allen & Son, Aug. 13,
1869, 81 MS. Dom. Let. 513.
April 7, 1888, an agreement was entered into between Mr. Lewis, United States consul at Tangier, and the Moorish authorities, for the arbitration of the claims against the Government of Morocco growing out of the neglect or refusal of that Government to observe and enforce treaty rights of American citizens and protegés. The Sultan having refused to approve the agreement, Mr. Strobel, secretary of the United States legation at Madrid, was directed, April 28, 1888, to proceed to Tangier to assist in the negotiations. He arrived at Tangier on the 2d of May, and on the 8th of the same month, with the assistance of Mr. Strobel and of Commander Folger, of the U. S. S. Quinnebang, a new arrangement was completed, satisfactory to all parties. By this agreement a tribunal was to be constituted, to be composed of Mr. Lewis and of two persons designated by the Sultan, who were, however, to have but one vote. The agreement contained an enumeration of four matters which were to be disposed of, but stipulated that other claims of American citizens in regard to debts, commercial intercourse, and robberies might be presented. The tribunal was to endeavor to make its report by June 1, 1888, and its decisions were to be binding. In the event of a disagreement one of the foreign representatives at Tangier was to be named as umpire. The tribunal met and agreed upon an award, which was signed by Mr. Lewis and the two representatives of the Sultan. This award
embraced the matters specifically enumerated in the agreement, and stipulated that the other claims should be left to the examination and decision of certain other persons. Complaint was afterwards made of the nonobservance by the Moorish Government of the provisions of the award in respect of two of the four enumerated matters.
Mr. Bayard, Sec. of State, to Mr. Lewis, consul at Tangier, March 1, 1889, 129 MS. Inst. Consuls, 112.
"The condition of international law fails to furnish any imperative reasons for excluding boundary controversies from the scope of general treaties of arbitration. If that be true of civilized states generally, a fortiori must it be true of the two great English-speaking nations."
Mr. Olney, Sec. of State, to Sir J. Pauncefote, Brit. ambass., June 22, 1896, For. Rel. 1896, 232, 236.
Where the parties to a controversy agree to submit it to arbitration, it is the usual practice to draw up and sign a treaty, convention, or protocol defining the question at issue and the arbitrator's powers, besides providing for the appointment of arbitrators and regulating to some extent their procedure.
The agreement of two nations to arbitrate a question “constitutes an obligation between them which neither is morally free to disregard on grounds of technical formality.”
Mr. Gresham, Sec. of State, to Mr. Baker, min. to Costa Rica, July 14, 1893, For. Rel. 1893, 202, 203.
(3) APPOINTMENT OF ARBITRATORS.
"Under no circumstances
could the Government of the United States carry its mediatory good offices to the extent of proposing itself as arbitrator, even if excluding the imputation of being itself an interested party to the arbitration;" and the fact that it had been constrained to occupy a position of reserve with regard to a question between two other nations" for its own protection and to safeguard American intérests, would effectually preclude any suggestion that the Executive of this Government be invited to decide it as a judge."
Mr. Gresham, Sec. of State, to Mr. Peralta, Costa Rican min., May 18, 1893, For. Rel. 1893, 287, 288, 289.