International Arbitration, from Athens to Locarno

By Jackson H. Ralston | Go to book overview

CHAPTER III
DISPUTES CAPABLE OF REFERENCE TO INTERNATIONAL TRIBUNALS

20. Independence as non-arbitrable. -- Considerable differences of opinion exist among writers and statesmen relative to the disputes which are capable of being submitted to adjudication internationally. Innumerable treaties providing for future arbitrations have excepted, as non-arbitrable, differences involving the independence, honor, and vital interests of the parties to the treaty, and writers have been found in numbers to sustain the conception of the statesmen. The subject deserves examination. Let us first consider the exception of independence.

True it is, as said by Pillet, that "it is impossible that any difference should exist between states without affecting in some manner their independence."1 But of course in the reservation of independence no extreme meaning is intended to be given to the word. We must assume that the expression means some interference with the right of the nation as such to life, in other words some proposition which means either its death or its subservience in greater or less degree to the will of some other nation. Of course, in the extreme sense indicated by Pillet the order of a court directing one nation to pay money to another nation in settlement of a claim would be construed as limiting the entire independence of the nation so ordered to pay.

We must, however, take another view as to the meaning of the word. In this view a reservation of independence seems useless although not perhaps harmful. The very fact of a reference to arbitration assumes independence, based upon (unless otherwise specified) the equality and the independence of each other of the nations entering into the contract. Independence can no more be put in jeopardy, so far as a nation is concerned, by a treaty calling for arbitration or judicial settlement than can the independence of an individual by submitting himself to arbitration or to the judgment of a court. By the very submission the right to live is impliedly reserved in his case as well as in the case of the nation.2

____________________
1
La cause de la paix, 41.
2
"International arbitration, in the strict sense, presupposes the existence of independent and autonomous states recognized as resting on a basis of juridical equality". ( C. Phillipson, The International Law and Custom of Ancient Greece and Rome, II, 127.)

"D'ores et déjà nous affirmons que les États doivent conserver intactes leur autonomie et leur indépendance, et nous prétendons que l'établissement de l'ordre

-31-

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