International Law. A Treatise Volume Ii Part 3

-- 23. The award, when duly p.r.o.nounced and notified to the agents of the parties, decides the dispute finally and without appeal (article 81).

Any dispute arising between the parties as to the interpretation or execution of the award must, in default of an agreement to the contrary, be submitted to the tribunal which p.r.o.nounced it (article 82).

The parties may, however, beforehand stipulate in the _Compromis_ the possibility of an appeal. In such case, and the _Compromis_ failing to stipulate the contrary, the demand for a rehearing of the case must be addressed to the tribunal which p.r.o.nounced the award. The demand for a rehearing of the case may only be made on the ground of the discovery of some new fact such as may exercise a decisive influence on the award, and which at the time when the discussion was closed was unknown to the tribunal as well as to the appealing party. Proceedings for a rehearing may only be opened after a decision of the tribunal expressly stating the existence of a new fact of the character described, and declaring the demand admissible on this ground. The treaty of arbitration must stipulate the period of time within which the demand for a rehearing must be made (article 83).--

The Hague Convention contains no stipulation whatever with regard to the question whether the award is binding under all circ.u.mstances and conditions, or whether it is only binding when the tribunal has in every way fulfilled its duty and has been able to find its verdict in perfect independence. But it is obvious that the award has no binding force whatever if the tribunal has been bribed or has not followed the parties' instructions given by the treaty of agreement; if the award was given under the influence of undue coercion; or, lastly, if one of the parties has intentionally and maliciously led the tribunal into an essential material error. (See above, -- 16).

[Sidenote: Award binding upon Parties only.]

-- 24. The award[27] is binding only upon the parties to the proceedings.

But when there is a question of interpreting a convention to which other States than the States at variance are parties, the conflicting States have to inform all the contracting Powers of such convention in good time. Each of these States has a right to intervene in the case before the tribunal, and, if one or more avail themselves of this right, the interpretation contained in the award is as binding upon them as upon the conflicting parties (article 84).

[Footnote 27: The awards. .h.i.therto given are enumerated above, vol. I. -- 476, p. 521, but the case of Italy _v._ Peru (Canevaro claim, May 3, 1912) must now be added.]

[Sidenote: Costs of Arbitration.]

-- 25. Each party pays its own expenses and an equal share of those of the tribunal[28] (article 85).

[Footnote 28: See details in Wehberg, _Kommentar_, pp. 155-158.]

[Sidenote: Arbitration by Summary Procedure.]

-- 25_a_. With a view to facilitating the working of arbitration in disputes of minor importance admitting an abbreviated procedure, the contracting Powers propose the following rules for a summary procedure exclusively in writing:--

Each of the conflicting parties appoints an arbitrator, and these arbitrators need not necessarily be members of the Permanent Court of Arbitration. The two arbitrators thus appointed choose a third as umpire, who need not be a member of the Permanent Court either. But if they cannot agree upon an umpire, each of them proposes two candidates taken from the general list of the Permanent Court of Arbitration exclusive of such members as are either appointed by the conflicting States or are their nationals, and it is to be determined by lot which of the candidates shall be the umpire. This umpire presides over the tribunal which gives its decisions by a majority of votes (article 87).

In the absence of an agreement concerning the matter, the tribunal settles the time within which the two parties must submit their respective cases to it (article 88). Each party is represented by an agent who serves as intermediary between the tribunal and his party (article 89). The proceedings are conducted exclusively in writing. Each party, however, is ent.i.tled to ask that witnesses and experts should be called, and the tribunal has the right to demand oral explanations from the agents as well as from the experts and witnesses whose appearance in Court it may consider useful (article 90). Articles 52 to 85 of Convention I. apply so far as they are not inconsistent with the rules laid down in articles 87 to 90 (article 80).

CHAPTER II

COMPULSIVE SETTLEMENT OF STATE DIFFERENCES

I

ON COMPULSIVE MEANS OF SETTLEMENT OF STATE DIFFERENCES IN GENERAL

Lawrence, -- 136--Westlake, II. p. 6--Phillimore, III. -- 7--Pradier-Fodere, VI. No. 2632--Despagnet, No. 483--Fiore, II.

No. 1225, and Code, Nos. 1381-1385--Taylor, -- 431--Nys, III. pp.

83-94.

[Sidenote: Conception and kinds of Compulsive Means of Settlement.]

-- 26. Compulsive means of settlement of differences are measures containing a certain amount of compulsion taken by a State for the purpose of making another State consent to such settlement of a difference as is required by the former. There are four different kinds of such means in use--namely, retorsion, reprisals (including embargo), pacific blockade, and intervention. But it must be mentioned that, whereas every amicable means of settling differences might find application in every kind of difference, not every compulsive means is applicable in every difference. For the application of retorsion is confined to political, and that of reprisals to legal differences.

[Sidenote: Compulsive Means in contradistinction to War.]

-- 27. War is very often enumerated among the compulsive means of settling international differences. This is in a sense correct, for a State might make war for no other purpose than that of compelling another State to settle a difference in the way required before war was declared. Nevertheless, the characteristics of compulsive means of settling international differences make it a necessity to draw a sharp line between these means and war. It is, firstly, characteristic of compulsive means that, although they frequently consist of harmful measures, they are neither by the conflicting nor by other States considered as acts of war, and consequently all relations of peace, such as diplomatic and commercial intercourse, the execution of treaties, and the like, remain undisturbed. Compulsive means are in theory and practice considered peaceable, although not amicable, means of settling international differences. It is, further, characteristic of compulsive means that they are even at their worst confined to the application of certain harmful measures only, whereas belligerents in war may apply any amount and any kinds of force, with the exception only of those methods forbidden by International Law. And, thirdly, it is characteristic of compulsive means that their application must cease as soon as their purpose is realised by the compelled State declaring its readiness to settle the difference in the way requested by the compelling State; whereas, war once broken out, a belligerent is not obliged to lay down arms if and when the other belligerent is ready to comply with the request made before the war. As war is the _ultima ratio_ between States, the victorious belligerent is not legally prevented from imposing upon the defeated any conditions he likes.

[Sidenote: Compulsive Means in contradistinction to an Ultimatum and Demonstrations.]

-- 28. The above-described characteristics of compulsive means for the settlement of international differences make it necessary to mention the distinction between such means and an _ultimatum_. The latter is the technical term for a written communication by one State to another which ends amicable negotiations respecting a difference, and formulates, for the last time and categorically, the demands to be fulfilled if other measures are to be averted. An _ultimatum_ is, theoretically at least, not a compulsion, although it can practically exercise the function of a compulsion, and although compulsive means, or even war, can be threatened through the same communication in the event of a refusal to comply with the demand made.[29] And the same is valid with regard to withdrawal of diplomatic agents, to military and naval demonstrations, and the like, which some publicists[30] enumerate among the compulsive means of settlement of international differences. Although these steps may contrive, indirectly, the settlement of differences, yet they do not contain in themselves any compulsion.

[Footnote 29: See Pradier-Fodere, VI. No. 2649, and below, -- 95.]

[Footnote 30: See Taylor, ---- 431, 433, 441; Moore, VII. ---- 1089, 1091, 1099; Pradier-Fodere, VI. No. 2633.]

II

RETORSION

Vattel, II. -- 341--Hall, -- 120--Westlake, II. p. 6--Phillimore, III. -- 7--Twiss II. -- 10--Taylor, -- 435--Wharton, III. -- 318--Moore, VII. -- 1090--Wheaton, -- 290--Bluntschli, -- 505--Heffter, -- 110--Bulmerincq in Holtzendorff, IV. pp.

59-71--Ullmann, -- 159--Bonfils, Nos. 972-974--Despagnet, Nos.

484-486--Pradier-Fodere, VI. Nos. 2634-2636--Rivier, II. -- 60--Calvo, III. -- 1807--Fiore, II. Nos. 1226-1227, and Code, Nos.

1386-1390--Martens, II -- 105.

[Sidenote: Conception and Character of Retorsion.]

-- 29. Retorsion is the technical term for the retaliation of discourteous or unkind or unfair and inequitable acts by acts of the same or a similar kind. Retorsion has nothing to do with international delinquencies, as it is not a means of compulsion in the case of legal differences, but only in the case of certain political differences. The act which calls for retaliation is not an illegal act; on the contrary, it is an act that is within the competence of the doer.[31] But a State can commit many legislative, administrative, or judicial acts which, although they are not internationally illegal, contain a discourtesy or unfriendliness to another State or are unfair and inequitable. If the State against which such acts are directed considers itself wronged thereby, a political difference is created which might be settled by retorsion.

[Footnote 31: For this reason--see Heilborn, _System_, p. 352, and Wagner, _Zur Lehre von den Streiterledigungsmitteln des Volkerrechts_ (1900), pp. 53-60--it is correctly maintained that retorsion, in contradistinction to reprisals, is not of legal, but only of political importance. Nevertheless, a system of the Law of Nations must not omit the matter of retorsion altogether, because retorsion is in practice an important means of settling political differences.]

[Sidenote: Retorsion, when justified.]

-- 30. The question when retorsion is and when it is not justified is not one of law, and is difficult to answer. The difficulty arises from the fact that retorsion is a means of settling such differences as are created, not by internationally illegal, but by discourteous or unfriendly or unfair and inequitable acts of one State against another, and that naturally the conceptions of discourtesy, unfriendliness, and unfairness cannot be defined very precisely. It depends, therefore, largely upon the circ.u.mstances and conditions of the special cases whether a State will or will not consider itself justified in making use of retorsion. In practice States have frequently made use of retorsion in cases of unfair treatment of their citizens abroad through rigorous pa.s.sport regulations, exclusion of foreigners from certain professions, the levy of exorbitant protectionist or fiscal duties; further, in cases of refusal of the usual mutual judicial a.s.sistance, refusal of admittance of foreign s.h.i.+ps to harbours, and in similar cases.

[Sidenote: Retorsion, how exercised.]

-- 31. The essence of retorsion consists in retaliation for a noxious act by an act of the same kind. But a State in making use of retorsion is by no means confined to acts of the same kind as those complained of, acts of a similar kind being equally admissible. However, acts of retorsion are confined to acts which are not internationally illegal. And, further, as retorsion is made use of only for the purpose of compelling a State to alter its discourteous, unfriendly, or unfair behaviour, all acts of retorsion ought at once to cease when such State changes its behaviour.

[Sidenote: Value of Retorsion.]

-- 32. The value of retorsion as a means of settling certain international differences consists in its compulsory force, which has great power in regulating the intercourse of States. It is a commonplace of human nature, and by experience constantly confirmed, that evil-doers are checked by retaliation, and that those who are inclined to commit a wrong against others are often prevented by the fear of it. Through the high tide of Chauvinism, Protectionism, and unfriendly feelings against foreign nations, States are often tempted to legislative, administrative, and judicial acts against other States which, although not internationally illegal, nevertheless endanger friendly relations and intercourse within the Family of Nations. The certainty of retaliation is the only force which can make States resist the temptation.

III

REPRISALS

Grotius, III. c. 2--Vattel, II. ---- 342-354--Bynkershoek, _Quaestiones jur. publ._ I. c. 24--Hall, -- 120--Lawrence, ---- 136-137--Westlake, II. pp. 7-11--Twiss, II. ---- 11-22--Moore, VII.

---- 1095, 1096-1098--Taylor, ---- 436-437--Wharton, III. ---- 318-320--Wheaton, ---- 291-293--Bluntschli, ---- 500-504--Heffter, ---- 111-112--Bulmerincq in Holtzendorff, IV. pp. 72-116--Ullmann, -- 160--Bonfils, Nos. 975-985--Despagnet, Nos.

487-495--Pradier-Fodere, VI. Nos. 2637-2647--Rivier, II. -- 60--Nys, III. pp. 84-91--Calvo, III. ---- 1808-1831--Fiore, II. Nos.

1228-1230, and Code, Nos. 1391-1399--Martens, II. -- 105--Lafargue, _Les represailles en temps de paix_ (1899)--Ducrocq, _Represailles en temps de paix_ (1901), pp. 5-57, 175-232--Westlake in _The Law Quarterly Review_, XXV. (1909), pp. 127-137.

[Sidenote: Conception of Reprisals in contradistinction to Retorsion.]

-- 33. Reprisals is the term applied to such injurious and otherwise internationally illegal acts of one State against another as are exceptionally permitted for the purpose of compelling the latter to consent to a satisfactory settlement of a difference created by its own international delinquency. Whereas retorsion consists in retaliation of discourteous, unfriendly, unfair, and inequitable acts by acts of the same or a similar kind, and has nothing to do with international delinquencies, reprisals are acts, otherwise illegal, performed by a State for the purpose of obtaining justice for an international delinquency by taking the law into its own hands. It is, of course, possible that a State retaliates in consequence of an illegal act committed against itself by the performance of an act of a similar kind.

Such retaliation would be a retorsion in the ordinary sense of the term, but it would not be retorsion in the technical meaning of the term as used by those writers on International Law who correctly distinguish between retorsion and reprisals.