ARBITRATION AND NEGOTIATION.
EPEATED ill-success is not likely to make the process ik which ensures it either pleasant or profitable, and Marshal MeeMahon's award in the matter lately in dispute between Portugal and England will certainly suggest doubts whether it will not be wise to decline arbitration for the future. Yet there is so much that is rational abont the plan of sub- mitting a controversy between two friendly nations, neither of whom can pretend to absolute disinterestedness as regards the isaue, to the decision of an impartial third lower, that a would be unfortunate if Englishmen were to jump to this conclusion on no better ground than that in three cases running the judg- ment has gone against them. It is worth while, therefore, to conaicler what Arbitration is, and what are the questions in which it is likely to be useful. It may turn out, after all, tkat the results, which we cannot help regretting, are due not so inuell to faults inherent in the process, as to the fact that it has been employed in circumstances to which it is not properly adapted. If so, the remedy will lie, not in a hasty determina- tion never again to submit a difference to arbitration, but in a resolution to be more careful to ascertain beforehand whether the difference is a fit subject for arbitration. It is clear, at all events, that our present practice of first consenting to go before an arbitrator and then chafing under his award is neither politic nor dignified. A reference to arbitration ought always to be prompted by a genuine desire to asc,ertain the true state of the facts, an honest confession that they are more likely to be ascertained by a third person than by either of the parties to the dispute, and a full intention of accepting the result with real as well as formal good-humour.
Disputes between friendly nations ordinarily relate to one of three classes of questions,—law, policy, and fact. One Govern- ment represents to another that something it has done is con- trary to some principle of international jurisprudence, or is calculated to injure the protesting country. The answer to this representation may take one of three forms. The Govern- ment appealed to may deny that it has done what it is alleged to have done, and then the controversy will turn exclu- sively upon the facts of the case. Or it may admit that it has done what it is alleged to have done, but deny that in doing so it violated any recognised prin- ciple of international jurisprudence. The controversy will then turn exclusively upon the law of the case. Or, admitting that it has done what it is alleged to have done, it may either deny that its action is calculated to injure the protesting country:, or without entering upon this part of the subject, mluntain. that it was compelled to do what it did by regard for the interests of its own subjects. The weaknesa of much that has been said and written about arbitration is that proper attention has not been paid to the distinction between these wales's, cases. Arbitration has become a sort of peace
shibboleth, and in that character it has been preached as though it were the universal counterpart of war, an expedient to be adopted by Christian and moral nations like England, whenever pagan and immoral nations such as those of the Continent would take up arms. It would be just as reasonable to say that trial by jury was the only means of settling the disputes that arise between private persons. Trial by jury is a proper and sensible arrangement in a large number of cases, but it would not be a proper and sensible arrangement when the contention turns upon the construction of an Act of Parliament, or the conclusion to be drawn from a string of decided cases. Nor would it be a proper and sensible arrangement, if the point to be settled 'related not to the legal rights of the parties, but to the fair and neighbourly use of rights the existence of which is conceded. In the former ease, the intervention of a Judge is needed ; in the latter case, the disputants would be wise to talk the matter fairly out, with a view of seeing whether their seemingly incompatible wishes might not be harmonised by the exercise of a little moderation.
Arbitration is to the mutual relations of communities very much what trial by jury is in the mutual relations of individuals. It is a useful method of settling disputes which relate exclusively to questions of fact. In a matter of this kind, when each party is dealing fairly with each other, and each recognises that the other is dealing fairly with him, the common anxiety of both will be to know what the facts are. Each believes in his own version of them, each knows that his opponent is equally convinced of the truth of his version of them, and each will consequently be willing to abide by
the verdict of some disinterested person. The dispute out of which grew the long and bitter controversy between England and the United States related originally to a question of fact. The English Government acknowledged that it was bound to use due diligence to pre- vent the sailing of the Alabama, and maintained that due diligence had been used. The United States Government, in the first instance, only maintained that due diligence had not been used, and if this single issue had been submitted to arbitration, the subsequent reference of a more complicated and less appropriate issue would have been avoided. But sup- posing that the dispute had turned on the obligation of a neutral Govvnment to prevent the sailing from its ports of a ship intended for the naval use of a belligerent, there would have been nothing for an arbitrator to pronounce upon. Decisions upon questions of first instance in International Law can only be given by authorities who have the power to make International Law, and the records of these decisions will be found not in the awards of arbitrators, but in the treaties concluded between independent States, or in the protocols of conferences between properly commissioned diplomatic agents. More often than not, however, the disputes that arise between friendly Powers relate neither to law nor fact. They are essentially matters for detailed arrangement. One country wishes to possess a piece of territory claimed by another, and thinks that it has, at all events, an arguable title to it. But it by no means follows that if this arguable title can be shown not to Sexist, the desire to possess the territory will be laid to rest. It may be very much more valuable to the Power which has the worse title to it than to the other, or the claim of the Power which has the better title may really have been prosecuted not so much because it wants the terri- tory for itself, as because it has misconceived the purpose for which its opponent wants it. An arbitrator cannot take notice of such considerations as these. He has a straightforward question submitted to him,—to which of the two claimants does the disputed territory belong I—and be has only to give an equally straightforward answer. There is no room for the explana- tions, the concessions, the alternative offers, the suggested combinations—the whole process, in short, of give-and-take —which would be in place in a negotiation between diplo- matists. The result of this application of an inappro- priate process may be that the winner gets what is of no particular use to him, while the loser is deprived of that for which he would gladly have given the winner something that he would really have valued. The Delagoa Bay Arbitration is a case in point. The interest of England in that part of Africa is far larger than the interest of Portugal. and a harbour which would be of immense service to the nation which has. lost it goes to a nation to which it will probably be of next to- no service. Independent nations, especially nations not of the first rank, rarely like to sell territory or a claim to territory for hard money, and now that this bit of coast has been for- mally awarded to Portugal, she may feel herself bound inhonour
to keep it. But so long as the question of title remained open, it would have been perfectly possible for diplomatists dexterously to interweave other questions with it. The hope- lessness of coming to any positive conclusion on the historical evidence adduced on both sides might have been acknowledged, and upon that an arrangement might have been founded which should have given to each claimant what he really cared for, —an African harbour to one, an equivalent for an African • harbour to the other. The lesson of Marshal MacMahon's award is not that arbitration is a bad thing, but that, like other good things, it is only good in its proper place. It is not a universal principle of international policy ; it is simply a convenient method of deciding a particular and extremely limited class of international differences.
Previous page
