66 INTERNATIONAL LAW AND PEACE 



principle, decided against Russia on the ground that the Russian Government when 

 accepting instalment, never made any reserve as to interest. 



As regards standing Arbitration Treaties the efforts made to meet the difficulty of 

 embracing in any formulae all differences which may arise between the contracting 

 states have rather tended to show where that difficulty really lies than to solve it. A 

 number of treaties, certainly, have been concluded in which all differences without 

 distinction of character are made arbitrable. The latest of these, the Treaty of Novem- 

 ber 20, 1909 between Italy and the Netherlands, provides that: 



"The high Contracting Parties engage to submit to the Permanent Court of Arbitration 

 established at the Hague by the Convention of July 29, 1899 all differences of whatever 

 character which may arise between them which they have not been able to solve by diplomatic 

 methods, and this shall apply also to differences arising out of facts prior to the conclusion 

 of the present convention." 1 



Nearly all the standing treaties hitherto concluded, however, except " national honour " 

 and " vital interests " from their operation. It would appear as if few Governments 

 were ready to take the responsibility of binding themselves to arbitrate without a means 

 of escape from the obligation. The new treaties between Great Britain and the United 

 States, and the United States and France, are no real exception in this respect. Though 

 they provide for investigation by a preliminary joint commission of inquiry for all cases 

 whatsoever, they confine arbitration to " claims of right made by one against another 

 under treaty or otherwise, and justiciable in their nature by reason of being susceptible 

 of decision by the application of the principles of law or equity " (Art. i). This obvi- 

 ously excepts from arbitration all questions based on policy and not on grounds of legal 

 right, which amounts for practical purposes to the adoption under another formula of 

 the " vital interests " clause. Under the ordinary formula, it is in the discretion of 

 either party to a dispute to describe the difference as involving a " vital interest," and 

 it is then removed from the operation of the treaty. An aggressor who has no equitable 

 basis for an application to the Hague Court or any other tribunal of independent judges, 

 is obviously not likely to accept the jurisdiction of a court which would practically have 

 no alternative but to find against him. Thus, in his ultimatum to Turkey (Sept. 26, 

 1911) the Marquis di San Giuliano took care to state that the issue between his country 

 and Turkey constituted " so far as Italy is concerned a vital interest of the very first 

 order." This was evidently intended to enable his Government to meet any suggestions 

 as to arbitration with the reply that no great Powers had yet agreed as between them to 

 have recourse to arbitration where vital interests were concerned. 



The Anglo-American Treaty of Arbitration of August 3, ign, is, nevertheless, a most 

 interesting new departure in the effort to deal with " vital interests " by pacific means 

 though not by arbitration. The treaty sets out by defining the scope of arbitration. 

 It does not, however, provide that arbitration, even when applicable, shall forthwith 

 come into operation, but prescribes a certain number of preliminary stages: 



1. Request by either party to submit any differences to a Joint Commission of Inquiry. 



2. Power to either party to postpone the reference to the Commission for one year from 

 the date of the request "to afford an opportunity for diplomatic discussion and adjustment 

 of the questions in controversy, if either party desires such postponement." 



3. The appointment by each party of three of their nationals to the Commission. 



4. Holding of the inquiry followed by a report upon the " particular questions or matters 

 referred to it, for the purpose of facilitating the solution of disputes by elucidating the facts 

 and to define the issues presented by such questions, and also such recommendations and 

 conclusions as mav be appropriate." 



5. If the difference persists, the case becomes the subject of an agreement of reference to 

 arbitiation, which is to provide for the organisation of the tribunal, define the scope of the 

 powers of the arbitrators and determine the question or questions at issue. 



The obvious object of the treaty is to create a scries of steps calculated to divert 

 attention from the issue to the method of settlement, and thus enable diplomacy to gain 



1 Italy entered into a similarly all-embracing treaty with the Argentine Republic during 

 the last Hague Conference (Sept. 18, 1907). Other unlimited treaties are in force between 

 the Argentine Republic and Chile (1902), Denmark and the Netherlands (1904), Denmark 

 and Italy (1905), Denmark and Portugal (1907). 



