¹ The distinction between “ arbitration” in a strictly technical sense, and “ arbitration” in a general sense, embracing “ all jurisdiction,” was made in the memorandum from the Secretary- General of the League of Nations to the Committee of Jurists on a plan for the World Court (Permanent Court of International Justice, Documents Presented to the Advisory Committee, p. 113).

In the correspondence leading up to the Locarno Conference of 1925 the French Government appeared to subscribe to a very broad meaning of the term “ arbitration,” the only condition which it believed essential being that the solution obtained should have “ uncaractere de decision obligatoire” (Pari. Papers, Miscellaneous No. 7, 1925 [Cmd. 2436], p. 14).

² Cf. Politis, La Justice Internationale, p. 193.

It is obvious that an agreement for what appears to be obligatory arbitration may be in reality only an engagement for voluntary arbitration if there is inserted in the treaty a clause specifying that there must be a further agreement (for reference of any dispute after it arises) between the parties before arbitration can actually proceed.

³ Certain other features, such as (1) provision for unilateral arraignment or ex parte reference, (2) provision for the automatic application of agreed sanctions, (3) provision for obligatory compromis or for arbitration of the preliminary question of the nature of a particular dispute (where this is disputed between the parties), (4) provision for obligatory appointment of arbitrators, if the arbitral bodies to be employed are not in existence at the time the dispute arises, (5) requirement of obligatory cooperation with tribunals during periods of litigation, and (6) designation of other forms of permitted procedure, and provision for transition from such procedure to technical arbitration, have marked some of the more advanced types of agreements for obligatory arbitration.

⁴ Merignhac, TraiU de VArbitrage International, p. 185, quoting an opinion on this point.

⁵ This view was presented at the First Hague Conference by Dr. Zorn, representing Germany on the Third Commission.

⁶ Schueking, The International Union of the Peace Conferences, pp. 135-137. This writer defends the idea that in treaties there may be a legal binding of states in the manner suggested, for “ in international contracts there is certainly a subordination to a foreign will.” In illustration, the case of extradition treaties, where a state “ renounces the right to decide … on demand for extradition,” is suggested; no diminution of sovereignty is thought to result from such an agreement, which has been entered into voluntarily and can be renounced at the will of either party (op. tit., 122, 123).

⁷ See statement of implied reserves, attaching to every treaty, in Hall, Treatise on International Law (7th ed.), pp. 361-370.

⁸ For attempts to define “ national honor” and “ vital interests,” see discussion before the Institute of International Law in 1904 {Annuaire, XX, 181 ff.). The equivocation in the use of the word “ independence” was there pointed out, also the desirability (suggested by Descamps) of using the words “ droits inalienaUes” instead of “ national honor” or “ vital interests” in reservation clauses.

⁹ The question of how to express necessary reservations occupied the attention of the Committee of Jurists who drew up the draft scheme for the Permanent Court of International Justice. It was at one time proposed to insert in the draft a reservation expressly protecting “ inalienable rights” ; but this was later abandoned (P. C. I. J., Minutes of the Proceedings of the Advisory Committee of Jurists, p. 259).

¹⁰ Cf. Swedish proposals in connection with the plan for the Permanent Court of International Justice (P. C. I. J., Documents Presented to the Committee of Jurists, p. 155).

¹¹ See debate in the United States Senate on the Taft Arbitration Treaties (Congressional Record, XLVIII, 2934#.). Senator Root was asked whether questions of the kind which up to that time had been, commonly reserved from arbitration (i.e., questions affecting nationalhonor, vital interests, independence, or the interests of third states) might ever become “ justiciable” under the terms of the proposed treaties. His reply (pp. 2936-2937) was in part as follows:

“ … I do not see how a question which involves the independence of a nation can bejusticiable, because that means a right of capital punishment. Whether ‘vital interests' canbe justiciable or not depends a good deal upon the scope you give to ‘vital interests.’ Somepeople might say that a question was vital and others that it was not. If the vital interestgoes to the life of the Nation, I should not say the question involved in it was justiciable.The ‘honor of the two contracting States'—there again I well conceive that questions thatare supposed to involve honor may be justiciable. I should think most of them would be.The interests of third states cannot be justiciable unless the third parties are also parties tothe proceedings. If they are parties to the proceedings, then they would be justiciable.”For further discussions of the meanings of terms generally used in reservation clausesbefore the World War, cf. Morris, International Arbitration and Procedure, 88-100; Erzberger,Der Volkerbund, 107; Barclay, New Methods of Adjusting International Disputes… ,59#.

¹² Cf. views expressed by the German delegation at The Hague Conference in 1907 (DeuxiemeConference de la Pair, 1, 515 jf.; II, 49-54).

¹³ Cf. Nippold, Die ForthUdung des Verfahrens in Volkerrechtlichen Streitigkeiten, p. 270.

¹⁴ Cf. treatment of juridical questions in a projet before the Institute of International Law (Annuaire, XXV, 411).

¹⁵ Cf. opinion of Mr. Justice Baldwin in Rhode Island v. Massachusetts, 12 Peters, 597, with definitions and explanations of political and judicial questions

¹⁶ Award of the tribunal in the matter of interest on indemnities, between Russia and Turkey: Wilson, The Hague Arbitration Cases, 315 ; this Joubnal , Vol. 7, p . 178.

¹⁷ If a distinction between questions justiciable and those non-justiciable be accepted, there remains the problem of conferring authority to pass upon the nature of controversies, where this is disputed between the parties. To employ reservation clauses with the idea that no“ foreigner,” even one sitting as a tribunal presumably free from bias or prejudice, can safelybe allowed to decide when national honor or vital interests are affected, amounts in practice to establishing the rule that no state claiming that its honor or interests are affected need arbitrate. Obligatory arbitration could never then be realized; for the extent of a signatory's obligation would be merely to consider in good faith whether its fundamental rights were involved. This point, in connection with the arbitration treaties proposed in 1911, was discussed by President Taft in his The United States and Peace, 101 ff.

¹⁸ Vattel, Law of Nations (London ed., 1792), p. 257.

¹⁹ At the Second Hague Conference the view was advanced that arbitral awards should be considered complements of the arbitration conventions, and have the effect of additionalprotocols (Deuxibm Conference de la Paix, Actes et Documentes, II, 897: Note on Obligatory Arbitration and personal opinion of M. Asser).

A Nicaraguan treaty of 1890 set forth that an arbitral award under the treaty should beconsidered “ como Tratado perpetuo, obligatorio y perpetuo” (Colecci&n de Tratados (Managua,1909), p. 187).

In the Treaty of Lausanne (1923) it was provided that decisions of mixed arbitral tribunalsto be set up should be “ final and conclusive” and enforced as to nationals of the respectiveparties “ without it being necessary to have them declared executory” (British TreatySeries No. 16, 1923 [Cmd. 1929], p. 79; Article 94, Section V of the treaty).

²⁰ Cf. the further statement of Mr. Bayard that “ … it is a settled principle of international law that no sovereignty can in honor press an unjust or mistaken award even though made by a judicial international tribunal invested with the power of swearing witnesses andreceiving or rejecting testimony” (United States Foreign Relations, 1887, p. 608).

²¹ Arbitrage au sujet de la determination des limites entre I'Autriche ou plid6t la Galide et la Hongrie prbs du lac dit “ L'Oeil de la Mer” (text of decision in Revue de Droit International et de Legislation Comparie, 2nd Series, VIII, pp. 196-212). In the course of the opinion the tribunal said:

“ le tribunal ne doit pas admettre la reserve comme faisant tort & son prestige et dV autorite de la chose jugte par Varbitrage. D'aiUeurs, le dispositif du compromis poHait que ladetermination de lafronti&re dans le cadre disigni par les conclusions des deux gouvernements fitidefinitive et non pas provisoire et temporaire.“ II s'agissait done de terminer le difftrend definitivement, sans aucune reserve pour un d&xtiulterieur. La reserve … est done en contradiction avec le but du compromis et, pour cetteraison, inadmissible.”

²² Westlake, article, “ International Arbitration,” International Journal of Ethics, VII, p. 5.

²³ P. C. I. J., Documents Concerning the Action Taken by the League, 194.

²⁴ Provisions in the nature of reservation clauses are to be found before the modern period. When the Swiss in 1355 submitted their differences with the Duke of Austria over the town of Zug and the rural community of Glarus to the arbitration of Charles IV, it was with the preliminary condition that the arbitrator in rendering his award should not touch upon the liberties of these countries, nor their alliance with other cantons (Vattel, op. tit., 259n.).

²⁵ The division is substantially that of Politic, La Justice Internationale, p. 34.

²⁶ This applies to treaties made by the United States with Barbary States and with South American Republics, embodying a plan of obligatory negotiation and delay before resort toforce (Art. 22 of the Jay Treaty, 8 U. S. Stats. 127; ibid., 155, 160, 320, 338, 398). The second treaty cited (with Tripoli, 1796) appears to have gone further than others in the list, imposing an obligation for the peaceful settlement of any dispute arising out of the “ violation” of any articles of the treaty.

²⁷ Examples of treaties of the former type (containing compromisory clauses) are the agreement signed by representatives of Chile and Peru, April 26, 1823 (Recopilacidn deTratados y Convenciones Celebrados entre la Ripublica de Chile y Las Potencias Extranjeras, I, 6, Article XII of the Treaty), and a treaty of 1829 between Colombia and Peru, providing that disputes with reference to the meaning of the treaty be submitted to a friendly government, whose decision was to be absolutely obligatory (perfectamente obligatoria) upon both parties (Republica del Peru: Colecci&n de los Tratados, Convenciones, Capitidaciones, Armisticios (Aranda), Lima, 1892, III, p. 236).

²⁸ Classified according to the regional position of signatories, there were nine treaties between Central American States, nine instances in which a South American State entered into an agreement with a Central American country, and five treaties between South American Powers.

Of the first group, five of the nine carried, along with the arbitral clause, an obligation forthe parties “ never to make war against each other.” Text3 are to be found in: Colecci&n de Tratados (Costa Rica), I, 118, 119; Derecho International Guatemalteco, Colecci&n de Tratados(1892), I, 516, 592; Colecci&n de Tratados (Nicaragua), pp. 49, 110, 282, 331, 358, 376.

²⁹ These efforts are traced by Quesada, Arbitration in Latin America, pp. 7 ff., and by Urrutia, La Evoluti6n del Printipio de Arbitrage en America, pp. 25-110.

³⁰ 52 British and Foreign State Papers, 521: Treaty of Amity, Commerce and Navigation, between Hawaii and Belgium; ratifications exchanged at London, March 12, 1864. Article27 contains the compromisory clause.

³¹ Treaties and Conventions Concluded Between the Hawaiian Islands and other Powers Since 1825, p. 83 (with Switzerland); p. 89 (with Italy). Within the same decade, Siam concluded treaties, containing clauses for obligatory arbitration of all disputes arising under these particular treaties, with Belgium, Italy, Norway, Sweden and Austria-Hungary (59 British and Foreign State Papers, 405; 60 ibid.,773; 69 ibid., 1135; 61 ibid., 1308).

³² Cf. the endorsement of obligatory arbitration by such bodies as the Ibero-American Juridical Congress, meeting at Madrid in 1892 (document, Congreso Juridico Ibero-Americano,Madrid, 1892, especially pp. 61, 101, 152, 153).

³³ The treaties referred to were bipartite arrangements. During the period from 1872 to 1900, four general treaties (signed by more than two states) were drawn up between CentralAmerican countries; but of these, two were apparently not ratified, and the two which did come into effect remained in force for only a short time.

³⁴ In the last case suggested, arbitration was to be optional for the state raising the claim, but still obligatory for the other state (Derecho International Guatemalteco, Vol. I (1892),p. 615 (Article 8 of the treaty).

³⁵ Tratados, Convenciones, etc. (Argentina), IX, 329; Recopilacidn de Tratados (Chile: Santiago, 1894), II, 123; Argentine collection cited, II, 152.

³⁶ Treaties signed by Argentina with Paraguay and Uruguay: Tratados, Protocohs, Actos y Acuerdos (Argentina: Buenos Aires, 1912), IX, 268, 596; treaty between Brazil and Chile,signed May 18, 1892: Becopilacidn de Tratados, Convenciones, Protocobs (Chile), Y, 71.

³⁷ Tratados y Convenciones (Republicana Mexicana, 1896), II, 355.

³⁸ Republica de Colombia, In}or me que el Subsecretario de Relacidnes Exteriores … Presenta al Congreso, 1898, 299. The method to be used was set forth in more definite terms in this treaty than in some of the others of the period.

³⁹ Reports of Committees and Discussions, International American Conference, II, 954.The quoted text follows that reported by a committee; this form was only slightly changedbefore being approved by the conference (document cited, pp. 1078-1083).

⁴⁰ Minutes, International American Conference, 761.

⁴¹ Cf. Resolutions of the Interparliamentary Union of 1889 and 1892 and references therein to the use of reserves in arbitration engagements, Union Interparliamentaire,Resolutions (Lange ed., 1911), pp. 33, 39.

⁴² Text in 96 British and Foreign State Papers, 35. The agreement covered only questions “ of a legal nature or relating to the interpretation of treaties existing between the two contracting parties” ; and from these restricted categories could be excluded such questionsas either party might regard as affecting its vital interests, independence or honor, or concerning the interests of third parties.

⁴³ Deuxikme Conference de la Paix, I, 382.

⁴⁴ Even the treaties which went farthest in the direction of unlimited obligatory arbitration usually had clauses intended to protect the ordinary jurisdiction of municipal courts. In early treaties such questions, when referred to, were usually excluded altogether. Later treaties allowe delay in consideration until the municipal courts might have an opportunity to render decisions.

⁴⁵ Schindler, Les Traitis de Conciliation et d'Arbitrage condus par la Suisse de 1921 a 1925, pp. 33, 34.

⁴⁶ The legal effect of the Calvo clause is discussed in Borchard, The Diplomatic Protection of Citizens Abroad (1914), 809, and in the recent American Dredging Company case before the General Claims Commission, United States and Mexico (Opinions and Decisions, Docket No. 1223).

⁴⁷ Perhaps the best example during the period of a treaty free from reserve clauses and setting up an obligatory jurisdiction was the five-power agreement of December 20, 1907,establishing the Central American Court of Justice, with jurisdiction over every dispute which might arise between the parties (100 British and Foreign State Papers, 835). Other “unconditional” agreements in bipartite form, made by Central American with South American States (e.g., Colombia's compromisory clause for treaty questions in’ a convention with Brazil, Tratados Piiblicos de Colombia (Bogota, 1913), 11, 18, and her general arbitration engagements with Ecuador (1905) and Bolivia (1912), 99 British and ForeignState Papers, 1013, 106 ibid., 903), may be set over against certain other treaties which made arbitration obligatory only with some reservations based upon the nature of particular controversies (e.g., the treaties which Brazil concluded in 1909 with Salvador and Honduras respectively, 8 Nouveau Recueil G&ntral (Martens), 3rd series, 341, and 105 British and Foreign State Papers, 937). Arbitration clauses covered questions of a legal nature relating to existing treaties, with the exception of disputes touching upon the vital interests, independence or honor of the signatories, or the interests of third states. Mexico and Honduras, when concluding a Treaty of Amity, Commerce and Navigation in 1908, made the compromisory clause therein inapplicable to any question which might involve “ an attack upon or an offense against their national integrity or dignity” (102 British and Foreign State Papers, 655). In only one of five arbitral engagements by which Bolivia became bound between 1901 and 1905 was there an unconditional agreement to refer all controversies whichcould not be settled by direct negotiation.

The General Arbitration Treaty of May 28, 1902, between Argentina and Chile, while permitting reference by simple demand of one party, withheld questions which might affect the constitutional principles of either state, a reservation which was to frequently appear thereafter in arbitration conventions made by Latin-American states.

Spain and Italy each entered into a number of arbitration engagements with Latin- American states during the period. They contributed to the development by attempting to define with greater precision than had previous treaties the scope of arbitrable disputes and providing for arbitration to determine the nature of controversies. Matters which might affect constitutional principles were reserved. In a group of treaties made by Brazil with European states during the period, broader reservation clauses appear, and no method of ex parte reference is provided.

Perhaps the most advanced treaties of the period between the two Hague Conferenceswere those made by Denmark with Italy (1905) and Portugal (1906), respectively. Theycovered all disputes of whatsoever nature, except disputes between nationals of one state andthe other state in matters which according to local law were within the jurisdiction of localcourts; and even cases of the latter kind might be referred if there were any applicationupon the bearing of a convention, or if they were cases of denials of justice (text of theDanish-Portuguese treaty, 101 British and Foreign State Papers, 287). Under the Danish-Italian treaty, ex parte reference was permitted.

In the period after 1907, while the general tendency was decidedly opposed to obligatoryarbitration without reservations and on any kind of an automatically-operative basis,certain exceptional treaties are to be found. Perhaps the most conspicuous is that of November20, 1909, between Italy and The Netherlands. All controversies arising betweenthe signatories, even those having their origin in the past, were covered; no questions werereserved. An elaborate plan to assure reference, even against the will of one of the signatories,was set forth (Vol. XVII, Recueil des Traitis et Conventions condus par le Royaumedes Pays-Bas . .. (Lagemans-Breukelmann), p. 1035). Other treaties made by Italy (in1910 and 1911, with Belgium, Norway and Sweden respectively) employed a plan for obligatorycompromis, but contained reservation clauses for questions such as those affectingindependence or integrity of the signatories (text of the Italian-Swedish treaty in 5 N. R. G.(3rd series), 359).

⁴⁸ The conference consumed much time in an effort to define or list questions which, unless national honor or vital interests might be considered involved, could be properly included in an obligatory arbitration convention. It was thought by some that there might be some moral value in such lists. But strong objections were encountered, both to the principle of listing, and to the idea of “ listing” particular subjects, e.g., railroad conventions and extraterritoriality.

⁴⁹ Text in 5 N. R. G. (3rd series), 682. The obligation was assumed, in general, for legal questions or those relative to the interpretation of existing treaties; ex parte reference was permitted.

⁵⁰ The function of the joint high commission was to have been to decide whether any given question was “ justiciable” within the scope of the treaty, when this was disputed between the parties. The treaty having been so amended by the Senate as to affect its principalobject, ratifications were not exchanged. Cf. text of the unratified treaty, Senate DocumentNo. 93, 62nd Cong., 1st Sess., 3-8; for the inserted reservation, Cong. Record, XLVIII,2954; for statements made in the British Parliament in regard to the negotiations, Hansard,Parliamentary Debates, Fifth Series, Vol. 26, p. 126, Vol. 28, pp. 1273,1805, Vol. 29, p. 939.As a scheme to be built upon, and to supplement the Convention for the Pacific Settlementof International Disputes, the Institute of International Law, at its sessions in 1911 and1912, worked out an elaborate plan for procedure by an international commission when astate raised the claim that its national honor was involved in a dispute (Annuaire, XXIV,224-230; XXV, 411).

⁵¹ Treaty of January 11,1909, relating to Canadian boundary waters (36 U. S. Stats. 2448).For discussion of the work of the International Joint Commission, and especially the obligationaccepted by the signatory parties to refer disputes to the commission for investigation, aswell as the competence given the commission to function as an arbitral tribunal if the partiesagree to this, see an article by R. A. MacKay, this Journal , Vol. XXII, p. 292.

⁵² Where, in the Advancement of Peace Treaties, arbitration was provided as a means of amicable settlement after obligatory reference to a commission of inquiry had not led to afriendly arrangement, it was always with the modification of reserves in the traditional form.Article IV of the treaty with Chile is typical; it contains the following:

“ Notwithstanding, any quest on that may affect the independence, the honor or the vital interests of either or both of the countries, or the provisions of their respective constitutions, or the interests of a third nation, will not be submitted to such or any other arbitration”(39 U. S. Stats. 1648).

⁵³ Politis, La Justice Internationale, 226.

⁵⁴ 110 British and Foreign State Papers, 826. The inclusion of the last phrase quoted above, with its rather doubtful effect, is believed to furnish what was at that time a novelfeature.

⁵⁵ 39U. S. Stats. 1714; Article XI of the treaty. It seems possible that questions might arise under Article VI (dealing with the extension of American citizenship to inhabitants ofthe islands) which might reasonably be classed as “ domestic” under the current interpretation of that term. Since there is no provision for automatic reference, and in view of the traditional attitude taken by the United States Senate in regard to reference (to be effected only through a compromis approved by the enate), the force of this agreement for obligatory arbitration (of questions in regard to the interpretation or application of this particular convention) remains doubtful.

⁵⁶ The engagement in each of these treaties applied to “ all disputes, of whatever nature” but disputes which had already been the subject of final settlements could not be reopened, except as to matters concerning the validity, interpretation or execution of awards. The ob igations under the treaties did not apply to cases between citizens, subjects, societies or corporations of oneof the parties and the other state (except in the event of a denial of justice) where according to the municipal law of the latter state the matter was within the competence of its municipal courts.

The willingness of France and Great Britain to sign treaties of “ unlimited” arbitration at a time when the two Allies were at war, called forth high praise of the two countries from a representative of Uruguay at the First Assembly of the League of Nations (Records of First Assembly, Plenary Meetings, 448; remarks of Sr. Blanco). Texts of the treaties are in 111 British and Foreign State Papers, 742, and 112, ibid., 779. A treaty in substantiallysimilar terms was made by Uruguay with Brazil about the same time (111 British and Foreign State Papers, 672).

⁵⁷ The two great Powers had, in certain other instances during this period, agreed to unlimited arbitration of questions arising under particular treaties. Cf. the Anglo-Portuguese commercial treaty of August 12, 1914, with a compromisory clause by which arbitration might be had on demand of either party (text in British Treaty Series No. 6 (1916) [Cmd. 8402], pp. 35, 36); also convention of September 30, 1915, between France and The Netherlands for fixing the boundaries of French Guiana and Surinam (text in 110 British and Foreign State Papers, 872). In the latter case, reference was to be by compromis, and ex -parte submission to a tribunal was apparently excluded.

⁵⁸ For the purpose of this classification, agreements which provide for settlement under purely judicial, as well as arbitral, procedure have been included. The number includes anumber of multipartite arrangements under which disputes with reference to interpretation are to go to the Permanent Court of International Justice.

The list includes at least two conventions to which the United States was a party, anextradition convention signed with Venezuela in 1922 (U. S. Treaty Series No. 675), and aconvention signed with the Dominican Republic, December 27, 1924, to replace the conventionof February 8, 1907, providing for the assistance of the United States in the collectionand application of the customs revenues of the Dominican Republic (U. S. Treaty SeriesNo. 726). In the former it is provided that “ all differences between the contracting statesrelating to the interpretation or execution of this treaty shall be settled by arbitration.”No such provision is found in other extradition conventions which the United States concludedabout the same time, such as those with Latvia, Siam, Bulgaria or Lithuania (U. S.Treaty Series Nos. 677, 681, 687, 699). The message of the President communicatingthe Venezuelan treaty to the Senate directed attention to the fact (explained in the accompanyingreport of the Secretary of State) that “ the additional article … was signed … inorder to meet a requirement of the Venezuelan Constitution” (Cong. Record, Jan. 5, 1923,Vol. 64, p. 1301).

In the convention with the Dominican Pepublic, it is made very clear that arbitrationmay not proceed except under a compromis approved by the United States Senate.

⁵⁹ League of Nations Treaty Series, Nos. 603, 814, 1124, 1256, 1391. In one of these instances (Series No. 1256), a treaty of commerce and navigation between Germany and Italy,a possible reservation is suggested in the provision that an arbitral tribunal shall decide “ the preliminary question whether the dispute is of a nature to be referred to the arbitral tribunal.”

⁶⁰ Cf. L. N. T. S. Nos. 1129, 1379.

⁶¹ L. N. T. S. 1425.

⁶² In the nature of a safeguard for the respective governments, rather tl\an a reservation clause in the usual sense of the term, is the provision that a court of arbitration “ shall only be convened by the respective governments and not by subordinate officials or private persons”(Commercial agreement of May 4, 1921, between Czechoslovakia and Austria, L. N. T. 8. 388).

⁶³ P. C. I. J., Series A, No. 2, pp. 13, 15.

⁶⁴ Cf. conventions made by the United States with Sweden (U. S. Treaty Series No. 708) and Liberia (U. S. Treaty Series No. 747).

⁶⁵ One of these renewals was that accomplished by an exchange of notes between the British and Netherlands Governments (L. N. T. S. 977). According to dispatches to theDepartment of State from American Minister Toben at The Hague, the Dutch Government delayed the renewal of the convention in the hope that the British Government would adopt a broader attitude on the matter of the type of treaty to be made, but this the British Government did not do (United States Daily, June 30, 1926).

⁶⁶ L. N. T. S. 267.

⁶⁷ L. N. T. S. 1170.

⁶⁸ Text, Conference on Central American Affairs, 1922-1923, pp. 296-313. The convention is to be in effect until January 1, 1934, and thereafter until one year after denunciation by a signatory.

The language of the convention quoted, taken in connection with the rule that “ the tribunalshall not admit any complaint which may contravene the provisions of Article I ofthis convention,” and with the carefully prescribed method of reference, which may beex parte if necessary, the reservation would seem to give no right to a single signatory topass finally on whether a given controversy affected its sovereign and independent existence,this question being left to the tribunal.

⁶⁹ Text, L. N. T. S. 831. The treaty, according to its terms, entered into force for the ratifying states in the order of their ratifications. Its duration is indefinite, subject to the right of any signatory to denounce with notification, such denunciation taking effect oneyear after being made. Cf. remarks on the terms, Verbatim Records of the Plenary Sessions of the Conference, I,648 ff. The absence of an obligatory arbitration clause (to cover cases in which conciliationmight have been tried and failed) was explained as the result of lack of unanimity.

⁷⁰ The text of the last paragraph of Article I is as follows:“ It is understood that in disputes arising between nations which have no general treatiesof arbitration, investigation shall not take place in questions affecting constitutionalprovisions, nor in questions already settled by other treaties.” Even where questions aresubmitted to investigation, the parties at the expiration (in ordinary cases) of eighteenmonths recover entire liberty of action to act as their interests may dictate.Even this modified form was not ratified by all the republics. See the reported statementof Mr. Hughes at the Sixth Pan American Conference that the Gondra Convention had beenratified by only eight states (N. Y. Times, Jan. 28, 1928).

⁷¹ L. N. T. S. 991.

⁷² The first category of excepted questions under the Baltic States' Agreement is apparently covered by Article 3, which permits the withholding from arbitration or conciliation of questions within the jurisdiction of municipal courts according to municipal law, until adefinitive judgment has been rendered by a competent municipal authority.

⁷³ List of signatories and ratifications, indicating the conditions of acceptance: P. C. I. J., Series E, No. 3, pp. 83-88.

⁷⁴ L. N. T. S. Nos. 861, 1072.

⁷⁵ For a statement in regard to the reported unwillingness of the Japanese Government to go as far as Switzerland wished to go in extending the scope of this treaty, cf. the Journal de Genbie, April 8, 1925, p. 3.

⁷⁶ L. N. T. S. Nos. 1055, 1303, 1304, 1404, 1436. A treaty of commerce and navigation which Siam made with Great Britain set forth a somewhat similar obligation, but only forquestions of interpretation or application of this treaty (L. N. T. S. No. 1176).

⁷⁷ L. N. T. S. No. 1304. The French-Siamese treaty contains a temporary reserve relating to agreements concerning Indo-China (L. N. T. S. No. 1055, Art. 2, paragraph 4).

⁷⁸ L. N. T. S. Nos. 1192, 1235, 1242, 1417, 1418, 1420.

⁷⁹ See for examples, the treaty of friendship between Afghanistan and Persia, L. N. T. S. 853; the general compulsory arbitration treaty between Uruguay and Venezuela, L. N. T. S. 942, subject only to the reserve mentioned in Note 81 below; agreement concerning arbitration,between Austria and Hungary, L. N. T. S. 457.

A general treaty of arbitration signed between the Argentine Republic and Venezuela in 1911, registered in 1924, reserved questions relating to constitutional provisions of eitherstate and such as, according to the laws of either state, should be settled by the courts ofthat state (L. N. T. S. 715).

⁸⁰ L. N. T. S. Nos. 384 and 1374. But in other agreements such disputes are specifically included under the obligation (L. N. T. S. 457, 888, 1420).

⁸¹ The general compulsory arbitration treaty between Uruguay and Venezuela (L. N. T. S. 942) contains a typical clause of this kind

⁸² Cf. L. N. T. S. No. 1373.

⁸³ Convention of friendship and good neighborly relations, between France and Turkey (L. N. T. S. No. 1285), Article XIV.

⁸⁴ L. N. T. S. Nos. 384, 715. In other instances there is provision for delay in consideration, but not exclusion, of such disputes (L. N. T. S. Nos. 1192, 1235,. 1242, 1417, 1418, 1420).

⁸⁵ L. N. T. S. No. 888; but an apparently opposite rule is sometimes laid down [e.g., in L. N. T. S. No. 1374, Article 20).

⁸⁶ 112 British and Foreign State Papers, 717 (Great Britain-Chile); L. N. T. S. No. I l l (Chile-Sweden); L. N. T. S. No. 116 (Great Britain-Brazil); L. N. T. S. No. 320 (Germany-Switzerland); L. N. T. S. No. 322 (Poland-Switzerland). Three of these treaties did include an obligation to mploy further methods of settlement, should conciliation fail. The Swiss- German treaty made arbitration obligaory for questions found by arbitrators not to affect either party's “ independence, the integrity of its territory, or other vital interests of the highest importance.” The British-Brazilian treaty prescribed arbitration, but only under a convention containing a broad reservation clause. The Swiss-Polish engagement called for reference to the Permanent Court of International Justice as a last resort, but the engagement covered only disputes as to interpretation or execution of a single commercial convention.

⁸⁷ L. N. T. S. Nos. 717, 731, 751, 839, 840, 842, 952, 1123, 1364.

⁸⁸ These conventions are now supplemented by the conventions for the pacific settlement of disputes (Note 78, supra).

⁸⁹ The Swiss treaties, texts of which are to be found in the League of Nations TreatySeries, some of them also in the Systematic Survey of the Arbitration Conventions and Treaties of Mutual Security Deposited with the League of Nations (C. 34. M. 74. 1926. V) are discussed in Schindler, Les Traitis de Conciliation et d'Arbitrage conclus par la Suisse.

⁹⁰ Where a dispute is not of a legal nature, settlement by the court is to be ex aequo et bom.

⁹¹ L. N. T. S. Nos. 1293, 1294, 1295, 1296.

⁹² Worthy of special note are several conventions concluded by Germany and by Czechoslovakia.

Treaties made by the former state provide for settlement by arbitration of thenature of a dispute, when one party pleads that the question at issue is one which affects itsindependence, the integrity of its territory, or other vital interests of the highest importance,and the other party does not recognize that this plea is well founded (L. N. T. S. Nos. 320, 1036, 1070). The same treaties provide that they shall not be inapplicable merely becausethird states are concerned, that they are to cover disputes having their origin in the past withthe exception of those arising directly out of the World War, and that there shall be the usualdelay in reference of questions which, according to the municipal law of one state, are withinthe jurisdiction of its municipal courts. The treaty which Germany made with Denmark,coming into effect in 1927, does not contain the clause in regard to vital interests mentionedabove (L. N. T. S. No. 1444). One of the Czechoslovak treaties (with Poland,L. N. T. S. No. 1171) contains a reserve unusual in this type of treaty, specifying that “ theprovisions of the present treaty shall not apply to questions regarding territorial statusof the contracting parties” ; and in a final protocol the parties “ agree that any difference ofopinion as to the desirability of modifying in any way their territorial status, constitutes aform of dispute such as is only capable of settlement by an agreement, freely entered intobetween themselves, and that, consequently, there is no occasion to provide for an organcompetent to deal with such cases.” The treaty of conciliation and arbitration betweenCzechoslovakia and Sweden provides for reference of questions, as a last resort, where conciliationhas been tried and has failed, to the League Council for action under Article 15of the Covenant (L. N. T. S. No. 1159). Other treaties require arbitration of such questionson request of one party (L. N. T. S. Nos. 1434 and 1437 for examples). All of thesetreaties permit delay in reference of disputes within the jurisdiction of municipal courts,according to municipal law, with the exception of denial of justice cases.

⁹³ That the object of Article 15 of the Covenant is to exclude arbitration (or any procedure which would result in a binding judgment) for “ domestic” questions, seems clear from the following pronouncement of the Permanent Court of International Justice: “ Article 15, in effect, establishes the fundamental principle that any dispute likely to lead to a rupture which is not submitted to arbitration in accordance with Article 13 shall be laid before the Council. The reservations generally made in arbitration treaties are not to be found in this article.

“ Having regard to this very wide competence possessed by the League of Nations, theCovenant contains an express reservation protecting the independence of states; this reservationis to be found in paragraph 8 of Article 15. Without this reservation the internalaffairs of a country might, directly they appeared to affect the interests of another country,be brought before the Council and form the subject of recommendations by the Leagueof Nations. Under the terms of paragraph 8, the League's interest in being able to make suchrecommendations as are deemed just and proper in the circumstances with a view to themaintenance of peace must, at a given point, give way to the equally essential interest of theindividual state to maintain intact its independence in matters which international lawrecognizes to be solely without its jurisdiction” (P. C. I. J., Series B, No. 4, pp. 24, 25).That, in such cases, there is to be no denial of the League's right to take “ whateveraction may be deemed wise and effectual to safeguard the peace of the world,” is madeclear in the Locarno Treaty of Mutual Guaranty (Article 7), incorporated by reference intothe several bipartite arbitration conventions of Locarno.

⁹⁴ Dupuis, “ La Crise de VArbitrage Obligatoire,” Revue Politique et Litteraire (Revue Bleue), 1927, No. 4, p. 97. The writer believes that there is danger of discrediting voluntary arbitration through placing a too great and unjustifiable confidence in obligatory arbitration.