in the Peace of Westphalia, increasingly practiced since then, and at the instance of Lincoln embodied in a manual, has now led to the adoption of a common international code for the conduct of future armies in the field—a result which marks the triumph in our day of the conception of civilized warfare tempered with mercy over the old idea of indiscriminate and inhuman slaughter.
The Sphere of Arbitration.-—A matter that has given rise to much speculation is the jurisdiction of arbitral tribunals. It has come to be recognized that a distinction must be made between different classes of international disputes. What may be called "business disputes" between states, such, as boundary lines, tariffs, damages, fishery claims, questions of , and various treaty arrangements—like the most-favored nation clause—are all fit subjects for arbitration. But the graver questions involving the consideration of national policy and aspirations, vital interests and honor, race and religious prejudices and passions, and last of all self-preservation, are, at least for the present, far beyond the competence of an arbitration tribunal.
If the list of arbitral decisions hitherto given be examined it will show that questions of the first sort above are those which have thus far been submitted to judicial settlement. It is therefore in harmony with past experience that the conference, in generally defining the scope of arbitration, declared it to be intended for the settlement of "questions of a juridical nature," especially the interpretation and application of international agreements upon the basis of respect for law. The frequency of these "business questions" is on the increase; they seriously embarrass diplomatic representatives, whose proper duty is the conduct of graver matters of policy, and there is a growing disposition to submit them to legal settlement. Under these circumstances, there is little doubt that
- See Essai sur l'Organisation de l'Arbitrage International, by M. Descamps, p. 24.
- The Transvaal War pertinently illustrates the prevailing want of knowledge regarding the true sphere of arbitration. Ever since the outbreak of war the Continental press and some American papers have been asking why the provisions of the Peace Conference are not put in operation. Much of this is due to anglophobia; much to a genuine ignorance of the matter. The treatment of the subject usually takes the form of an antithesis in which Great Britain as a peace power at the conference is contrasted with Greater Britain making war on a little republic, and this is invariably followed with a statement or inference that the Peace Conference was a huge farce, and the Permanent Court a dire failure. It is now quite plain that the root of the difficulty between England and the Transvaal was not the franchise nor the dynamite monopoly, but English versus Dutch predominancy in the whole of South Africa, and therefore a grave clash of two opposing policies, involving the deepest questions of interest and even self-preservation. Regarding these questions the conference was unanimous in the opinion that they are entirely outside the sphere of arbitrable question.
- See especially the list given in the back of Darby's International Tribunals, p. 286.
- See Article XV of the Convention.