The Ninth International Red Cross Conference met at Washington on the 7th of May, 1912. During the ten days that the conference sat (7th-17th), very much work was accomplished; at the same time the foreign delegates were given an excellent opportunity of seeing the beautiful American capital and of enjoying the renowned American hospitality; every evening was given up to some entertainment and many of the afternoons also. Conspicuous by its charm and beauty was the reception of the President and Mrs. Taft on the lawn of the White House. The social events culminated in a large banquet given on the 16th by the American Red Cross. Next day the delegates took leave of their hospitable hosts.

From time to time the cases known by the generic name of French Spoliation Claims come up for discussion in Congress and in the press and are often debated without any very definite conception of their origin or basis. It may seem strange that claims against the government whose inception is connected with the very beginning of our national existence should still be the subject of consideration as present demands against the government, both before the courts and in the legislative forum.

But dilatoriness in dealing with matters of private right between the citizen and the government seems to have become traditional. Not until 1885 was there any tribunal before which these claims could be prosecuted. Even under the Act of 1885, as will be seen hereafter, a decision of the court has not the legal effect of a final judgment. Hence, it is that the liability of the government for the payment of these claims settled by unanimous judicial decision a quarter of a century ago is often reopened in Congress and the press and the subject threshed out anew, often in apparent ignorance of the laborious investigation long since made by the Court of Claims into the history and basis of these claims, and the result of that investigation as announced in a number of thorough and well-reasoned opinions.

Referring to the identic general arbitration treaties recently negotiated with Great Britain and France, President Taft remarks, in a recent magazine article: “They have amended the treaty in the Senate and have put in so many exceptions that really it is very doubtful whether the adoption of such a treaty will be a step forward.”

It is the purpose of the present article to consider the Senate amendments to the arbitration treaties with a view to offering some suggestions upon the question which President Taft thus raises, namely, whether or not the exchange of ratifications and putting into effect of the general arbitration treaties with Great Britain and France, as amended by the Senate, will or will not be a step forward toward the goal of peace through justice. As a foundation for an intelligent discussion of this question it seems desirable to emphasize some points with regard to the purpose and fundamental theory of the treaties as originally drawn and the success with which this theory has been embodied in the language of the treaties.

There appears to be one thing about which nearly all the friends of the treaties may be said to have agreed, that is, that the chief value of the treaties, as negotiated, was indirect and general, not immediate and definite as between the contracting parties. They were chiefly valuable, not because these particular treaties would prevent war between the signatory nations, for “war between the United States and England or the United States and France was inconceivable if not impossible.”

The invention of wireless telegraphy and recent improvements in the aeroplane and dirigible balloons have greatly extended the possibilities of international aerial communication and navigation, and have thus rendered necessary a discussion of the law of the so-called aerial domain in works on international law.

During its session at Ghent in 1906, the Institute of International Law adopted the following principles: “The air is free. In time of peace and in time of war, states have over it only the rights necessary for their self-preservation.” These principles, which were based upon the views of Fauchille and accepted by a vote of 14 against 9, have been justly criticized. They are not in agreement with recent articles and monographs on this subject, and do not answer the practical necessities either of aerial navigation or wireless telegraphy, especially in time of war.

Since the publication of our last article, the political independence of Bulgaria has been juridically established from the constitutional point of view.

As we have already seen, the Bulgarian diplomatic and governmental situation had been developed in fact, without ever having been theoretically or diplomatically discussed. This is natural. The Bulgarian Government took great care not to raise that question, contenting itself from the internal point of view with Art. 17, of the Constitution of Tirnovo, which gave to the Prince, in general, the conduct of diplomatic negotiations. It might have been contended that Bulgaria, which was a vassal state, had no absolute right to make purely political treaties; and it is doubtful that King Ferdinand, before the establishment of Bulgarian independence, had ever entered into any written political treaties. Moreover, if he had, it would have raised an internal constitutional question; for, in such case, it would have been incumbent upon him to refer the matter to the Sobranjé.

This conference, — the latest of the Hague Conferences to which the United States was a party, — was proposed by the United States on September 1, 1909, and convoked by the Netherlands Government on December 1, 1911. It dealt in a judicial manner with the varied and conflicting interests, diplomatic, moral, humanitarian and economic, of those governments represented and with the known similar interests of those not represented. Several of the governments in making pledges for the obliteration of the opium evil did so in the face of an eventual large financial sacrifice, but this was done thoughtfully and generously.

The conference determined upon and on January 23rd last signed a convention for the suppression of the obnoxious features of their national and of the international opium, morphine and cocaine traffics, and for the regulation of that part of the production of and trade in the drugs which may be said to be legitimate. To China was confirmed much that she had contended for for a hundred years or more as to the vexatious export of Indian opium to her shores. This act, however, was but a broader recognition of what the British Government had, as between India and China, already yielded to China by virtue of the so-called Ten Year Agreement of 1907, and by the modification of that agreement signed at Peking on the 8th of May, 1911.

On August 18/31, 19.07, the Governments of Great Britain and Russia entered into the following agreement:

We presume that many of our readers have noticed the recent debate in the Congress of the United States on the subject of retaliation upon rebel prisoners of war in our hands for the treatment ours have received from the rebel authorities; and we think not a few must have been surprised at the course of that discussion. That opinions on this subject should differ is very natural; but so very wide a difference, or rather a direct conflict of opinion, on fundamental principles, would suggest that either the law itself was unsettled, or that the speakers did not well understand it. Indeed, on these questions of the laws and usages of war there is great want of information, not only among our people generally, but among our legislators, courts, lawyers, military officers and other public men. Nor is this to be wondered at. Prior to the present war, the people of the United States made no claim to be a military people; on the contrary they prided themselves as being civil in the strict sense of that word, and disclaimed and discountenanced all knowledge of the military art, or acquaintance with the science of war. Indeed, a profound peace of more than three-quarters of a century could scarcely be said to be interrupted by the insignificant contest of 1812, or the short war with the weak and demoralized Eepublic of Mexico. During this long period our pursuits as a nation have been, not of arms, but of agriculture, manufactures and commerce. Moreover, our very astute politicians and legislators have assured us, time and again, that there was no necessity for any military organization or military knowledge in the United States, for our untrained militia were more than sufficient for any contingency that could possibly arise. It is true that Washington and his contemporaries who achieved our independence and founded the Eepublic took a different view of this question; but who would presume to compare their opinions with those of the sages who lead our modern Congressional debates!

After the Reformation, when Europe divided itself into a number of separate states, each claiming to be an independent nation, the necessary contacts between them led to frequent wars. The question arose how to bring about a concert of action between them, which should result in peace and order. All that could be done by agreement was done. But it was clear that peace and order were constantly imperilled so long as the settlement of the questions constantly arising out of these necessary contacts was dependent upon treaties, because at any time on slight pretext these might be rescinded. It was perceived that the only assurance of peace and order among nations, as among individuals, lay in the establishment of a law governing the actions and relations of the nations. Publicists therefore set themselves to the task of formulating and establishing such a law.

The first article on this subject in the April number of The American Journal of International Law (pp. 359–380), dealt with the general principles upon which these claims have been held by the Court of Claims to have been in their origin valid international demands against France, and to have been assumed as obligations of the United States by force of the treaty of September 30, 1800, the ratifications of which were exchanged July 31, 1801.

The present article will be devoted to a review of some of the rules on which the Court of Claims proceeded in the details of its allowances.