there would have to be read into the text what is now expressed in it. For it is quite obvious that, even though only the stipulation, pure and simple, of obligatory arbitration is expressed, as soon as this is evaded or its verdict is not respected, the hypothesis of the intervention of arms returns as the only possible corrective of the rejection of an arbitral agreement or of disobedience to its award. This is what the ordinary arbitral agreement passes over in silence, and what the American proposition affirms. The two things differ only in appearance; one is more clever, the other more frank.

"It is sad that we are obliged always to leave war behind what we do for peace. But so long as war exists and men make of it a means of reinstating law, we know not how to prevent the melancholy spectacle — of which we ourselves are necessarily parts of considering it as the last court of appeal for those who, while believing themselves possessors of a law, or having an arbitral decision in their favor, see it flouted by those in rebellion against measures of conciliation and forms of justice. . . . Nothing could show us in a more impressive manner how our mission is circumscribed by the essence of facts and what a universe of impossibilities is opposed, outside of certain limits, to our most ardent wishes and our most heroic efforts."

M. Milovanovitch renewed in the committee of examination the effort to strike out the part of the proposition which refers to the use of armed force, at the same time admitting that a recourse to violent means must always be understood as a last resort. But General Porter replied that it was impossible to do this, and that from what he had heard from the jurisconsults, the substitution of the apparently milder, but more equivocal, words "coercive measures" would be defeated. Sir Edward Fry, of Great Britain, also said that the term "coercive measures" might be equivocal, since it is employed in domestic law to designate all the modes of execution in use for national sentences.

In the Porter Proposition as first presented, no reference was made to the use of force in case the debtor state makes "impossible the establishment of the compromise" (i.e.

an agreement as to the precise question to be arbitrated, the time, place, and mode of the arbitration, etc.). When it was presented to the subcommission without this proviso, Count Tornielli, of Italy, while expressing his strong desire to vote for the proposition, was opposed to it without such proviso. He evidently had in mind, in this case as well as in other cases of obligatory arbitration, the fear lest the United States Senate and other similar bodies might prevent the resort to arbitration even after the offer had been accepted. Count Tornielli also drew the inference from General Porter's speech that the United States was unwilling to arbitrate any claims for pecuniary damages in cases where the State courts had failed to award them to Italians injured in American cities. His objections to the proposition were supported by the representatives of Japan, Spain, Norway, Servia, Bulgaria, and Persia. But the proviso as to the compromise was included in the amended proposition, and General Porter stated in the committee of examination that "the purpose of the proposition is not, directly or by implication, to attempt to justify, in cases of debts or claims of any kind, any procedure which is not based on the principle of the settlement of international differences by arbitration, of which, in its widest application, the United States of America is to-day more than ever a sincere advocate." Thereupon Count Tornielli expressed himself as entirely satisfied, and withdrew his objections; and the other delegations, objecting on the same ground, followed his example.

On the other hand the representatives of the Dominican Republic and Haiti objected to the compromise clause being included in the paragraph recognizing force as the last resort, and based their objection on Article 53 of the

H

Convention of 1907 for the Peaceful Settlement of International Differences which provides that the Court of Arbitration shall determine the compromise in case the parties in dispute are agreed that it should do so. But this objection was yielded by Haiti, in order to secure the votes of the delegations making the directly opposite objection; while the Dominican Republic voted for the proposition with the reservation of this clause.

In reply to a probable objection of Professor de Martens, of Russia, General Porter stated in the committee that the application of the rule was intended to be restricted absolutely to the interventon of a government in behalf of its citizens, and not of the citizens themselves.

One final objection was urged against the proposition by the representatives of Roumania, Switzerland, and Turkey in regard to the place which it was to occupy among the acts of the conference. The representatives of France and Portugal welcomed the proposition for the expressed reason that it was a shining example of obligatory arbitration; the representatives of Germany and Austria, while supporting the proposition throughout, denied that they were thus advancing the cause of obligatory arbitration. And the delegations of Roumania, Switzerland, and Turkey opposed the proposition lest it should be placed in the Convention for the Peaceful Settlement of International Differences, in association with the articles referring to arbitration, and thus be made an example of obligatory arbitration. General Porter stated his entire willingness, from the first, however, that his proposition be made the subject of a separate convention, and this plan was adopted. This concession resulted in Turkey's voting for the proposition, and in abstention from the vote on the

part of Roumania and Switzerland, instead of their negative vote.

Although the Porter Proposition had to run this long gauntlet of objections, it was hailed and followed throughout by the applause of many of the delegations, including those of the large and the creditor powers; noteworthy among these were Great Britain, France, Germany, Russia, Austria, and Brazil. Even those who made objections to its form in the various ways noted above, had many and warm words of praise for its general principle; and in the end it received the affirmative vote of thirty-nine delegations, while those of Belgium, Roumania, Sweden, Switzerland, and Venezuela did not vote against it, but abstained from voting at all. It should be noted, however, that nine of the American republics, while casting an affirmative vote for the proposition as a whole, made certain reservations as to its interpretation or application. Eight of these, Argentina, Colombia, Ecuador, Guatemala, Nicaragua, Paraguay, Peru, and Uruguay, made the reservations included in the Drago Doctrine; and the Dominican Republic adhered to its reservation in regard to the compromise.

D. INTERNATIONAL COURTS

I. THE PERMANENT COURT OF ARBITRATION

a. The Conference of 1899

The Russian plans for the peaceful settlement of international difficulties included proposals in regard to good offices and mediation, international commissions of inquiry, obligatory arbitration in certain classes of cases,

and a code of arbitral procedure; but they did not at first include a plan for a court of arbitration. The honor and credit of proposing this famous institution belong to Sir Julian Pauncefote, of Great Britain, who made the proposition at the second meeting of the III Commission, or the 26th of May. He presented his plan in the following short address:

"Permit me, Mr. President, to inquire if, before going farther into this matter, it would not be useful and suitable to sound the commission on the question which in my opinion is the most important of all, that is, the establishment of a permanent tribunal of international arbitration, on which you have touched in your discourse.

"Many codes of arbitration and rules of procedure have been drawn up, but the procedure has been regulated, up to the present, by the arbitrators or by general or special treaties. Now, it seems to me, that new codes and rules of arbitration, whatever their merit may be, do not much advance the great cause which has called us together.

"If it be desired to take a step in advance, I am of opinion that it is absolutely necessary to organize a permanent international tribunal which could assemble immediately on the request of the nations in dispute. This principle once established, I believe that we shall not have much difficulty in agreeing upon details. The necessity of such a tribunal and the advantages which it would offer, as well as the encouragement and even the strong impulse which it would give to the cause of arbitration, has been shown with as much eloquence as force and clearness by our distinguished colleague, M. Descamps, in his interesting 'Essay on Arbitration,' an extract from which is to be found among the 'Acts and Documents' so graciously supplied to the conference by the Netherlands government. Nothing more remains for me to say, then, upon this subject; and I shall much appreciate it, Mr. President if, before proceeding further, you would consent to draw out the thoughts and feelings of the commission on the proposition which I have the honor to submit to you regarding the establishment of a permanent tribunal of international arbitration."