Lord Salisbury to Sir Julian Pauncefote.

No. 128.]

Sir: I have to acknowledge your excellency’s dispatch on the 13th ultimo, inclosing a note from Mr. Olney in reply to the proposals made by Her Majesty’s Government for a general treaty of arbitration.

Her Majesty’s advisers have received Mr. Olney’s dispatch with great satisfaction, in that it testifies clearly to the earnest desire which animates the Government of the United States to make effective provision for removing all differences of opinion which can arise between the two nations. They regret that in some essential particulars the opinions of the two Governments do not as yet seem to be sufficiently in accord to enable them to come to a definitive agreement upon the whole of this important subject. It appears to them, however, that there are some considerations bearing upon this matter to which the attention of the Government of the United States should be more particularly invited before the attempt to arrive at a general understanding ought to be laid aside.

I would say, in the first place, that Mr. Olney somewhat mistakes my meaning when he says that, in raising this question, I “in terms excluded the consideration of the Venezuelan boundary dispute.” I wished to state our views upon the question of general arbitration without touching upon certain points in relation to which the two questions do not cover the same field. But I was well aware that any settlement to which we might arrive must, in its general principles, be applicable to disputes not only between Great Britain and the United States but between either of them and any other government; and, therefore, with certain adaptations of detail, it would apply to a dispute between Great Britain and Venezuela. In this view I am glad to observe that I am at one with Mr. Olney, because I hold that, in discussing the safeguards by which a general system of arbitration should be sanctioned, it is important to bear in mind that any system adopted between our two nations ought to be such as can in principle be applied, if necessary, to their relations with other civilized countries.

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Mr. Olney is satisfied with the provisions of Article III of my proposals and the plan of arbitration which it contains.* The only fault he finds with them is that they are too limited in their application. He thinks that they “hardly cover other than controversies which as between civilized States could almost never endanger their peaceful relations.” It is possible that the language of the article maybe modified with advantage. It certainly was not intended to apply only to controversies of a practically unimportant character. The discussions which arise out of disputed claims to territory, which are dealt with in Article IV, are, or may be, much graver, as well as much more difficult to decide. But it would not, I think, be difficult to show by a consideration of the history of the present century that controversies which have issued in warlike action have not arisen exclusively or even mainly from disputed questions of territorial ownership.

To examine the individual instances would involve a somewhat lengthy investigation, which is not necessary now. It is more matreial on the present occasion to dwell upon the encouraging fact that Her Majesty’s Government and the Government of the United States are entirely agreed in approving the language of article No. 3 and the policy it is designed to sanction. Under these circumstances it appears to me to be a matter for regret that the two Governments should now neglect the opportunity of embodying their common view, so far as it is ascertained, in a separate convention. To do so would not be to prejudice in the slightest degree the chance of coming to an agreement on the more difficult portion of the subject which concerns territorial claims. The first step would not prevent the ulterior steps being taken; it would rather lead to them.

With respect to the mode of dealing with territorial claims, the views of the two Governments are still apart. The United States Government wish that every claim to territory preferred by one neighbor against another shall go, as of right, before a tribunal, or tribunals, of arbitration, save in certain special cases of an exceptional character, which are to be solemnly declared by the legislature of either country to involve the “national honor or integrity;” and that any dispute once referred under the treaty to arbitration shall be decided finally and irrevocably without the reservation of any further powers to either party to interfere. Her Majesty’s Government are not prepared for this complete surrender of their freedom of action until fuller experience has been acquired. In their view, obligatory arbitration on territorial claims is, in more than one respect, an untried plan, of which the working is consequently a matter of conjecture. In the first place, the number of claims which would be advanced under such a rule is entirely unknown. Arbitration in this matter has as yet never been obligatory. Claims by one neighbor to a portion of the land of the other have hitherto been limited by the difficulty of enforcing them. Hitherto, if pressed to the end, they have meant war. Under the proposed system self-defense by war will, in these cases, be renounced, unless the claim can be said to involve “the national honor and integrity.” The protection, [Page 230] therefore, which at present exists against speculative claims will be withdrawn. Such claims may, of course, be rejected by the arbiter; if they are, no great harm is done to the claiming party.

In the field of private right, excessive litigation is prevented by the judgment for costs against the losing party; but to a national exchequer the cost of an arbitration will be too small to be an effective deterrent. Whenever the result is, from any cause, a fair matter of speculation, it may be worth the while of an enterprising government to hazard the experiment. The first result, therefore, of compulsory arbitration on territorial claims will, not improbably, be an enormous multiplication of their number. Such litigation can hardly fail, from time to time, in a miscarriage of justice; but there will be a far more serious and certain evil resulting from it. Such litigation is generally protracted; and while it lasts the future prospects of every inhabitant of the disputed territory are darkened by the gravest uncertainty upon one of the most important conditions that can affect the life of a human being, namely, the character of the government under which he is to live. Whatever the benefits of arbitration may be in preventing war from arising out of territorial disputes, they may be well outweighed if the system should tend to generate a multiplicity of international litigation, blighting the prosperity of the border country exposed to it, and leaving its inhabitants to lie under the enduring threat either of a forcible change of allegiance or of exile.

The enforcement of arbitration in respect to territorial rights is also an untried project in regard to the provisions of the international law by which they are to be ascertained. This is in a most rudimentary condition, and its unformed and uncertain character will aggravate the other dangers on which I have dwelt in a previous dispatch—the danger arising from the doubts which may attach to the impartiality and the competence of the arbitrators.

There are essential differences between individual and national rights to land, which make it almost impossible to apply the well-known laws of real property to a territorial dispute.

Whatever the primary origin of his rights, the national owner, like the individual owner, relies usually on effective control by himself or or through his predecessor in title for a sufficient length of time. But in the case of a nation, what is a sufficient length of time, and in what does effective control consist? In the case of a private individual, the interval adequate to make a valid title is defined by positive law. There is no enactment or usage or accepted doctrine which lays down the length of time required for international prescription; and no full definition of the degree of control which will confer territorial property on a nation has been attempted. It certainly does not depend solely on occupation or the exercise of any clearly defined acts. All the great nations in both hemispheres claim, and are prepared to defend, their right to vast tracts of territory which they have in no sense occupied, and often have not fully explored. The modern doctrine of “Hinterland,” with its inevitable contradictions, indicates the unformed and unstable condition of international law as applied to territorial claims resting on constructive occupation or control.

These considerations add to the uncertainty to any general plan of arbitration in territorial disputes. The projected procedure for this purpose will be full of surprises; the nature of the tribunal, its ability, and freedom from bias, may be open to much question; the law which it is to administer has yet to be constructed. Even if the number of [Page 231] such disputes is not much larger than those of which we have had experience in modern times, the application of so trenchant and uncertain an instrument to controversies in which the dearest interests and feelings of multitudes of men may be engaged can not be contemplated without some misgiving. But if, as seems most probable, the facility of the procedure should generate a vastly augmented number of litigants desirous of rectifying their frontiers to their own advantage, the danger inherent in the proposed change may be formidable.

It appears to me that under these circumstances it will be wiser, until our experience of international arbitration is greater, for nations to retain in their own hands some control over the ultimate result of any claim that may be advanced against their territorial rights. I have suggested arrangements under which their interests might be indirectly protected, by conferring on the defeated litigants an appeal to a court in which the award would need confirmation by a majority of judges belonging to their nationality. I do not insist on this special form of protection. It would be equally satisfactory and more simple that no award on a question of territorial right should stand if within three months of its delivery, either party should formally protest against its validity. The moral presumption against any nation delivering such a protest would, in the opinion of the world, be so strong that no Government would resort to such a defense unless under a cogent apprehension that a miscarriage of justice was likely to take place.

Mr. Olney himself appears to admit the need of some security of the kind; only he would restrict the liberty of refusal to the period immediately preceding the arbitration. I do not in any degree underrate the value of his proposal, although if it were adopted it would require to be modified in its application to Great Britain in order to suit our special constitutional usages. But it would not meet the case of errors committed, from any cause, by the tribunal, which, in the case of a claim to inhabited territory, might have such serious results to large bodies of men.

I apprend that if Mr. Olney’s proposal were adopted as it stands the fear of a possible miscarriage of justice would induce the Government whose territory was claimed to avoid all risk by refusing the arbitration altogether, under the plea, which he allows, that it involved their honor and integrity. The knowledge, on the other hand, that there still remained an escape from any decision that was manifestly unjust would make parties willing to go forward with the arbitration who would shrink from it behind this plea if they felt that, by entering on the proceeding they had surrendered all possibility of self-protection, whatever injustice might be threatened by the award.

I have no doubt that if the procedure adopted were found in experience to work with tolerable fairness, the rejection of the award would come gradually to be looked upon as a proceeding so dangerous and so unreasonable that the right of resorting to such a mode of self-protection in territorial cases would become practically obsolete, and might in due time be formally renounced. But I do not believe that a hearty adoption and practice of the system of arbitration in the case of territorial demands can be looked for, unless the safety and practicability of this mode of settlement are first ascertained by a cautious and tentative advance.

I have to request that your excellency will read the substance of this dispatch to Mr. Olney, and will leave a copy with him if he should wish it.

  1. Article III runs as follows: “III. Complaints made by the nationals of one power against the officers of the other; all pecuniary claims, or groups of claims, amounting to not more than £100,000, made on either power by the nationals of the other, whether based on an alleged right by treaty or agreement or otherwise; all claims for damages or indemnities under the said amount; all questions affecting diplomatic or consular privileges; all alleged rights of fishery, access, navigation, or commercial privilege; and all questions referred by special agreement between the two parties shall be referred to arbitration in accordance with this treaty; and the award thereon shall be final.