less, frequent disputes between states, even though due to questions of minor importance, and not acting as a direct menace to the maintenance of peace, alter friendly relations between them and create an atmosphere of distrust and hostility in which a war may be more readily provoked by some incident or chance spark. Obligatory arbitration, having the result of absolving the interested states from all responsibility in regard to the solution of the question between them, should aid in the preservation of their friendly relations and thus facilitate the peaceful solution of the most serious differences which can arise on the plane of their highest interests.

"In recognizing thus the high importance of obligatory arbitration, it is indispensable above all to define precisely the sphere of its application; it is necessary to indicate in what cases obligatory arbitration is applicable.”

The delegation accordingly proposed as its first rule on the subject that "the contracting powers agree to have recourse to arbitration in questions pertaining to the classes mentioned below, in so far as they concern neither the vital interests nor the national honor of the parties in dispute." It proposed, secondly, that each state shall remain the sole judge of the question whether such or such a case should be submitted to arbitration, — with the exception of those cases, enumerated in the next article, which the signatory powers agree to submit to obligatory arbitration. The next article enumerated a list of cases to be submitted to obligatory arbitration; and the next two articles were united and adopted as Article 19, which will soon be referred to again.

The third article (Article 10 in the list of Russian propositions), enumerating as it did the classes of cases to be

submitted to obligatory arbitration, was the backbone of the system, and around it centered the debate in the committee of examination. It enumerated, first, disputes or claims relating to pecuniary damages incurred by a state or its citizens as the result of the illegal actions or the negligence of another state or its citizens.1 The second class of disputes enumerated were those relating to the interpretation or application of treaties having to do with the following subjects: postal and telegraph systems, railways, the protection of submarine cables, means of preventing collisions of ships on the high seas, the navigation of international rivers and interoceanic canals, the protection of literary and artistic copyrights and of commercial patents, trade-marks, and titles, monetary and metrical systems, sanitary and veterinary rules and regulations in regard to phylloxera, inheritance, extradition and mutual judicial assistance, and boundaries (in so far as these last relate to purely technical and nonpolitical questions).

Chevalier Descamps, of Belgium, proposed to add commercial and consular treaties to the above list; but Professors de Martens, of Russia, and Zorn, of Germany, opposed this for the reason that an arbitration clause could be inserted in all such treaties, a measure, said Count Nigra, of Italy, which the Italian government has already decided to adopt. Count Nigra also proposed the addition of treaties relating to the free, reciprocal aid of the sick and indigent, which was adopted. M. Asser, of the Netherlands, proposed the addition of treaties relating to the aid of the sick and wounded in time of war;

1 This class of cases will be considered under "The Forcible Collection of Debts," pages 349-350.

but Professor Zorn opposed this addition for the reason that it would result in dangers and insurmountable difficulties, and would subject even military operations to obligatory arbitration; and after considerable debate this proposition was rejected. One other addition to the list was suggested, and adopted, namely, treaties providing for rules concerning epizoöty and for prophylactic measures against phylloxera and other scourges of agriculture.

The list now included eleven classes of treaties; but Mr. Holls, of the United States, demanded the exclusion of those relating to international rivers and interoceanic canals, and to monetary systems. He said that his government would regard the navigation of such rivers as the St. Lawrence, Rio Grande, or Columbia, and the control of the Isthmian Canal, as preeminently American questions, and would not consent to their arbitration by a court composed mostly of Europeans; while the mere classing of monetary with metrical systems would affront a great American political party, whose leading men look upon the fixing of a monetary standard as a most important function of a sovereign state, and who would undoubtedly defeat the ratification of the proposed agreement in the United States Senate. This danger of non-ratification by the United States was reluctantly admitted by the committee, and the treaties referred to were stricken from the list, while the others were approved unanimously on the first reading, but subject to the proviso that they be taken up later for final settlement after instructions had been received in regard to them by the various delegations.

The second reading of the list of treaties was taken up four weeks later, on the fourth of July, and Professor Zorn immediately proposed the suppression of the entire

article containing them. He said that the German government was not in a position to accept obligatory arbitration, and felt that it had already conceded much in accepting the Permanent Court of Arbitration. Professor de Martens proposed as a compromise for the article in question that the words "obligatory arbitration" be suppressed, and that the four classes of cases introduced by the German government in its separate arbitration treaties be substituted for the list previously agreed upon. But Professor Zorn, in refusing the compromise, said that "when the Permanent Court should be put in operation, the opportune moment might come when, after individual experiments, a list of cases could be agreed upon obligatory for all. But to force this development unduly would be to compromise the principle of arbitration itself, with which we all sympathize."

A determined effort was then made by some members of the committee to have a majority recommendation of the disputed article reported to the commission; but the representatives of Great Britain, the United States, Italy, and Austria were opposed to departing from the rule of unanimity which had thus far been observed. The first three articles proposed by the Russian delegation were therefore withdrawn, and the fourth and fifth united to form one article, which was adopted unanimously. This article is a statement that, independently of existing general or special treaties which impose on the signatory powers the obligation to have recourse to arbitration, these powers reserve the right to conclude, either before the ratification of the present convention, or subsequent to that date, new agreements, general or particular, with the object of extending obligatory arbitration to all cases

which they may consider possible to submit to it. The only opposition or comment which this article encountered was in the commission, where M. Beldiman, of Roumania, and Professor Veljkovitch, of Servia, accepted it under the reserve that it should imply no engagement on the part of the signatory powers to enter into the treaties of arbitration referred to. The president of the commission remarked that there was no possibility of such an implication being contained in the article; and there was a general recognition of the fact that its adoption marked the final and definite abandonment of all plans for obligatory arbitration, however limited, so far as the first conference was concerned. But it was also generally believed that this abandonment was wise, since it was the sine qua non of the acceptance by Germany, and probably by several other states as well, of the Permanent Court of Arbitration.

b. The Conference of 1907

When the committee of examination turned from the question of obligatory arbitration in general to a consideration of the specific classes of cases proposed for submission to obligatory arbitration, it took up first the list submitted by the delegation from Portugal. Marquis de Soveral stated that this list was based on the treaties concluded by various powers since 1899, and on the model treaty adopted by the Interparliamentary Union at London in 1906, this latter treaty, in turn, being based on the Russian propositions submitted to the Conference of 1899 and discussed and provisionally adopted by that conference's committee of examination.

The British delegation added a number of cases to the