CHAPTER XXIV

PEACEFUL PROCEDURE

In the theory of general jurisprudence a distinction is made between the substantive law, which defines the rights which the law will aid and protect, and the adjective law or law of procedure, which prescribes the methods by which the rights recognized by the substantive law may be made effective. It has been shown above that an essential part of the rights defined by the substantive law are certain remedial rights which entitle their possessor to use due and proper means to enforce his primary rights.2 Strictly speaking, these remedial rights are distinct from the procedure by which they are made effective, the latter representing the methods prescribed by the law to be followed when a particular form of recognized redress is resorted to. In consequence, however, of the limited legal character of certain of the methods of peaceful procedure and of their development from optional to semi-obligatory forms of procedure, the right to use these remedies, together with the procedure to be followed in resorting to them, has generally been embodied in the same international document. Hence it will be found convenient to consider together the legal character of the remedy and the machinery by which it is put into motion. In the case of the forcible remedy of self-help, international custom has marked off the procedure of war as a distinct procedure, the rules of which have not been confused with the right to use the particular remedy.3

a Interna

tional pro

cedure in

general

tiation

As has been pointed out above, the drastic nature of war as b. Negothe ultimate form of self-help in the assertion of national policiesTM or in the defense of national rights has led to the creation of a legal obligation to negotiate in advance of an appeal to force. Apart from any obligation to negotiate, this form of peaceful procedure would doubtless play an even larger part in international law than is played in municipal law by the practice of "settlement out of court." Convenience, if not obligation, would lead the state

'See Holland, Elements of Jurisprudence, 8th ed., 315. 'See above, p. 379. 'See below, p. 428.

4

* Page 382.

CHAP.
XXIV

c. Good offices and mediation

in most cases to seek its remedy first by a reasoned appeal to the opposing party; and as a matter of fact an exchange of diplomatic notes, in many cases running over a long period of years, has, with few exceptions, regularly preceded the resort to forcible measures of redress. Looking at negotiation from the side of law, it would seem that long custom has given a definite legal standing to this form of procedure.1 In the comparatively few cases within recent years in which negotiations have been abruptly cut short by one of the parties, the public opinion of the international community has apparently been shocked by the violation of the obligation to negotiate, independently of the merits of the controversy between the parties. From the point of view of international morality, it would seem to make but little difference whether a state manifests its intention to enforce certain claims frankly and ruthlessly, or conceals them to a degree behind skilful and persistent diplomatic negotiations. Nevertheless, the international community appears to have given its sanction to the necessity of negotiation, if only for the reason that it admits the possibility, at any time during the negotiations, of a satisfactory concession on the part of the state upon which the demand is made, and makes it possible for third states to intervene as friendly mediators between the parties. In 1911 the action of Italy in sending an ultimatum to Turkey before negotiations had beeen exhausted was generally condemned by the neutral press, although the foreign offices of the nations remained officially silent. Again, in 1914, the peremptory ultimatum of Austria-Hungary to Serbia caused a shock to neutral public opinion and undoubtedly contributed to the impression among neutral states that the action of Austria-Hungary had ulterior motives behind the redress of the immediate grievance at issue. It would seem, perhaps, that, apart from the obligation of negotiation resulting from customary law, an implied obligation to negotiate was recognized by the signatory powers of the Hague Convention for the Pacific Settlement of International Disputes.2

The history of international relations contains numerous instances of intervention on the part of third states in cases where the conflict of rights between two or more states appears to be beyond the ability of the parties to settle by peaceful means.

Using the term "legal" in the sense appropriate to international law. See above, pp. 40-43.

'Article 38 of the convention of 1907 recognizes arbitration as the most effective and equitable means of settling disputes "which diplomacy has failed to settle."

2

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In some instances the intervention has been by means of armed CHAP. force, in which case it has itself added a new element to the dispute, and must be regarded as political action not part of legal international procedure. Such, for example, was the mediation or intervention of the Great Powers between Greece and Turkey in 1868 in relation to the island of Crete, and again between Turkey and Crete in 1897.1 In other cases the intervention has been friendly and non-compulsory in character, undertaken with the object of reconciling the differences between the opposing parties and proposed to them for acceptance or rejection according to their free choice. In 1856 the signatory powers of the Treaty of Paris obligated themselves, in the event of a dispute between the sultan and one or other of them, to have recourse to the mediatory action of the whole body of signatories. At the same time a protocol was adopted in which the obligation of the treaty was presented in the form of a vœu to which all states were invited to adhere.3 While as many as forty states adhered to the protocol, its restrictive clause, "as far as circumstances might permit," rendered it practically ineffective. A similar limited obligation to have recourse to mediation, or, if preferable, arbitration, was entered into by the signatory powers of the Berlin treaty of 1885. An instance of mediation in anticipation of war is to be seen in the settlement of the dispute between Germany and Spain over the Caroline Islands by mediation of Pope Leo XIII.5 An instance of mediation with the object of putting an end to hostilities is to be seen in the mediation of the United States in 1866 between Spain on the one hand and Peru, Chile, Bolivia, and Ecuador on the other. The right of either party to refuse an offer of arbitration is exemplified in the refusal of the United States in 1898 to accept the tender of good offices made by Great Britain, France, Austria, and the pope."

6

In 1899 the Hague Peace Conference, being impressed with the advantages of such friendly intervention for the maintenance of the general peace, endeavored to give a qualified legal standing

1See Bonfils-Fauchille, Droit International, Nos. 938, 942.

Art. VIII.

Bonfils-Fauchille, op. cit., No. 936.

• Art. 12. Br. and For. State Papers, LXXVI, 4.

'See Stowell and Munro, International Cases, I, 49.

See Moore, Digest, VII, § 1067.

'Further instances may be found in Moore, Digest, VII, §§ 1065-1067. Bonfils-Fauchille, Droit International, Nos. 937-942. For the distinction between a mere offer of good offices and the active duties of mediation, see Potter, Introduction to International Organization, Chap. XIII.

CHAP.
XXIV

Semi-legal character of mediation

to it as a form of procedure. The convention for the Pacific Settlement of International Disputes provided for a recourse by the disputants themselves, before an appeal to arms, to the good offices or mediation of one or more friendly powers. A further article sanctioned the action of third powers in coming forward upon their own initiative and offering as far as the circumstances allowed their good offices and mediation to the states at variance. This offer might be made even during the course of hostilities, and could in no case be regarded as an unfriendly act. Succeeding articles, after pointing out the duties of the mediator to act as a friendly compositor, emphasized the right of the contending parties to reject the offer of mediation and the optional character of the advice that might be offered. A special procedure was recommended by which the two parties might each choose a third state, thereupon leaving it to the two mediators to find a solution if possible.3

It will be observed that none of the provisions of the Hague Convention contain any element of direct legal obligation on the part of the contending states to accept the intervention of third states. The procedure of mediation has, however, a semi-legal character in the recognition by the international community of the general principle of the desirability of the tender of good offices and mediation, and of the right of third states to intervene without encroaching upon the parallel right of the contending parties to be the ultimate arbiters of their own claims. Within its limited scope, therefore, the right to tender good offices or mediation represents an inchoate sense of collective responsibility on the part of the community of nations as a whole for the maintenance of peace. In this respect the provisions of the Hague Conference must now be supplemented by those articles of the Covenant of the League of Nations which provide for the intermediation of the members of the League as a body in the interest of the general peace. Article 11 provides that "any war or threat of war, whether immediately affecting any of the members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations. Article 16 provides for the collective intervention of the League in the event of a resort to war by one or other of the contending parties in violation of the

XXIV

several agreements to submit the dispute to arbitration. As has CHAP. been pointed out above,1 these provisions are of the highest theoretical importance, since they represent the acceptance by the members of the League of a collective responsibility for the peace of the international community. Their practical importance remains, however, to be tested. They definitely establish the principle that, to the extent defined by the covenant, states are no x longer free to resort to the procedure of self-help, even when the methods of peaceful procedure have been exhausted, without risking the intervention not merely of one or more powers personally interested, but of the entire body of the League.2

4

tration

International arbitration was officially defined by the first d. ArbiHague Peace Conference as having for its object "the settlement of differences between States by judges of their own choice, and on the basis of respect for law." 3 It would seem that the definition is consistent with the past practice of arbitration except that for the term "law" should be substituted "such principles and rules as have commended themselves to the states having recourse to that method of procedure." Arbitration has been resorted to by states from the earliest days of the development of international law and has taken many different forms, so that the term has been applied, particularly within recent years, to include any form of peaceful settlement in which there are elements of a judicial decision, reconciling the conflicting points of view, but lacking the authority of law. The definition of the Hague Conference may therefore be accepted as in general conforming to actual usage, subject, however, to correction in respect to specific cases of international practice.

The essential character of arbitration lies in the fact that the tribunal appointed to decide the dispute is formed by the parties themselves. The free choice of the arbitrators for the particular dispute that is to be submitted to them distinguishes arbitration from the judicial processes familiar to municipal law. There must be present confidence of the contending parties in the ability of the particular arbitrators to render a satisfactory decision of the

1

Page 48.

* See above, p. 381.

Art. 15, Convention for the Pacific Settlement of International Disputes, 1899.

The Hague Convention had in mind the decision of cases in accordance with principles of law where such principles existed and were applicable, without encroaching upon the right of the parties to adopt special rules for the particular case. Compare the decisions by law, i.e., by the application of preexisting rules, which are the ideal of judicial settlement. See below, p. 410.

Free choice

of judges X