Mr. Olney to Sir Julian Pauncefote.
Washington, June 22, 1896
Excellency: The dispatch to you from Lord Salisbury of the 18th ultimo, copy of which you have kindly placed in my hands, has been read with great interest. While this Government is unable to concur in all the reasoning or in all the conclusions of the dispatch, it is both impressed and gratified at the earnest and serious attention which the important subject under discussion is evidently receiving. It can not refrain from indulging the hope that persistent effort in the line of the pending negotiations will have results which, if not all that the enthusiastic advocates of international arbitration anticipate, will be a decided advance upon anything heretofore achieved in that direction.
This last dispatch differs from the prior one of Lord Salisbury on the same subject in that, all general phraseology being discarded, an entirely clear distinction is drawn between controversies that are arbitrable as of course and controversies that are not so arbitrable. To the latter class are assigned territorial claims, while to the former belong, apparently, whether enumerated in Article III or not, claims of every other description. The intent to thus classify the possible subjects of arbitration seems unmistakable. In the first place, nonarbitrable subjects [Page 233] are expressly described as “territorial claims,” instead of as matters involving “territory, territorial rights, sovereignty, or jurisdiction,” the terms employed in Article IV. In the second place, all the arguments adduced against a treaty referring all differences to arbitration are arguments founded on the peculiar nature of territorial claims. The advantages of this sharp line of division between arbitrable and non-arbitrable topics are very great, and the fact that it is now drawn shows that the progress of the discussion is eliminating all but the vital points of difference.
Lord Salisbury critcises an observation made in my dispatch of April 11 last to the effect that the subjects of arbitration enumerated in Article III are such as could almost never endanger the peaceful relations of civilized states. The remark, however, seems to me well founded when considered in its true connection—that is, when it is borne in mind that the subject of present discussion is a general arbitration plan, not for the world at large nor for any two countries whatever, but solely for and as between Great Britain and the United States. As between them, it still seems to me quite impossible that war should grow out of such matters as those described in Article III, whether a general arbitration treaty did or did not exist between the countries. Nor can I seriously doubt Lord Salisbury’s concurrence in this view—his apparent opinion to the contrary being based, I think, on the supposed adoption and operation of Article III as the international law of civilized states in general.
Lord Salisbury’s practical suggestion in this connection is that, as the two Governments “are entirely agreed in approving the language of Article No. III and the policy it is designed to sanction,” those provisions may well be at once made effective by separate convention without waiting for an agreement upon other and more difficult points. Before a reply can be made to this suggestion, however, it becomes necessary to ascertain whether, in the view of his lordship, Article V of the proposals is to form part of such convention. If it is, any present absolute accord of the two Governments as to Article III can hardly be predicated—the qualifying effect of Article V upon Article III having been distinctly pointed out and a substitute provision outlined in my note to you of April 11, 1896.
The remainder of Lord Salisbury dispatch is devoted to territorial claims. The suggestion on behalf of the United States being that such a claim shall be prima facie arbitrable, and shall be arbitrated unless Congress or Parliament declare it non arbitrable, it is replied that this proposition involves a complete surrender of freedom of action for which Her Majesty’s Government is not prepared. But each Government’s freedom of action prior to entry upon an arbitration remains intact—the only change being that it is to be exercised through the Legislature of each country. Hence, by the freedom of action that is surrendered must be meant the liberty to reject an award after entering upon an arbitration. But it will not be contended that a Government should be permitted to fly from an award after once undertaking to stand by it, so that, as respects a territorial claim, his lordship’s real position is that there shall be no genuine arbitration at all. There shall be the usual forms and ceremonies, a so called arbitral tribunal, hearings, evidence, and arguments, but as the grand result, instead of a binding adjudication, only an opinion without legal force or sanction, unless accepted by the parties. Lord Salisbury does, indeed, propose that a protested award shall stand, either if approved by five out of six judges nominated three by one party from the judges of its supreme court and [Page 234] three by the other party from the judges of its supreme court, or, if not disapproved, by a tribunal of five judges of the supreme court of the protesting nation. But neither method makes any change in the essential idea, which is, that a decision upon a territorial claim shall not operate as a binding award unless the power aggrieved by it, acting through its political department, or through both its political and judicial departments, shall either affirm it or fail to disaffirm it. In Lord Salisbury’s judgment, action by the political department alone is to be preferred as being “equally satisfactory and more simple.” Now, it may not be wise to assert, though the obvious objections can not be ignored, that the experiment of subjecting a territorial claim to all the processes it would be subjected to under a genuine arbitration may not have compensating advantages and may not be worth trying. But the experiment should be recognized and known for what it is—as an arbitration only in name, while in fact nothing but an uncommonly ceremonious and elaborate investigation.
It is suggested that the United States admits the principle of the British proposals, but gets security against a miscarriage of justice in respect of a territorial claim by reserving to itself a “liberty of refusal” prior to the arbitration. But the United States proposals contemplate no rejection of an award when once arbitration has been resorted to—they reserve only the right not to go into an arbitration if the territorial claim in dispute involves the national honor and integrity. The British proposals also reserve the same right. The vital difference between the two sets of proposals is therefore manifest. Under the British proposal the parties enter into an arbitration and determine afterwards, when they know the result, whether they will be bound or not. Under the proposals of the United States the parties enter into an arbitration, having determined beforehand that they will be bound. The latter is a genuine arbitration; the former is a mere imitation, which may have its uses, but, like all other imitations, can not compare in value with the real article. It is further suggested that under the proposals of the United States fear of a miscarriage of justice might induce the parties to make undue use of the plea that a claim is not arbitrable because involving the national honor and integrity. The possibility of such an abuse undoubtedly exists, and must continue to exist unless the principle of Article V of the proposals is to be altogether abandoned. The fact was fully recognized in my dispatch of April 11 last, where it was suggested that the risks of improper refusals to arbitrate questions on the ground of their affecting the national honor or integrity would be reduced, perhaps minimized, if the decision in each case were left to the legislature of each country. It can not be necessary to now reiterate the considerations there advanced in support of that suggestion. It is sufficient to refer to them and to add that thus far no satisfactory answer to them has occurred to me or has been indicated in any quarter.
Lord Salisbury favors the practical exclusion of territorial claims from the category of proper arbitral subjects on two grounds. One is that the number of such claims is unknown and that, if arbitration respecting them became obligatory, there would be danger of an enormous multiplication of them. What grounds would exist for this apprehension were general arbitration treaties comprehending territorial claims universal and in force as between each civilized state and every other, it is difficult to judge and certainly need not now be considered. A treaty of that sort between Great Britain and the United States being the only thing now contemplated, it is not easy to imagine how its consummation can bring about the perils referred to. From what quarter [Page 235] may these numerous and speculative claims to territory be expected to come! Is the British Government likely to be preferring them against the United States or the United States Government likely to be preferring them against Great Britain? Certainly this objection to including territorial controversies within the scope of a general arbitration treaty between the United States and Great Britain may justly be regarded, if not as wholly groundless, as at least of a highly fanciful character.
It is said, in the next place, that the rules of international law applicable to territorial controversies are not ascertained; that it is uncertain both what sort of occupation or control of territory is legally necessary to give a good title and how long such occupation or control must continue; that the “projected procedure” will be full of “surprises;” and that the modern doctrine of “Hinterland” is illustrative of the unsatisfactory condition of international law upon the subject under discussion. But it can not be irrelevant to remark that “spheres of influence” and the theory or practice of the “Hinterland “idea are things unknown to international law and do not as yet rest upon any recognized principles of either international or municipal law. They are new departures which certain great European powers have found necessary and convenient in the course of their division among themselves of great tracts of the continent of Africa, and which find their sanction solely in their reciprocal stipulations. “Such agreements,” declares a modern English writer on international law, “remove the causes of present disputes; but, if they are to stand the test of time, by what right will they stand? We hear much of a certain ‘Hinterland’ doctrine. The accepted rule as to the area of territory affected by an act of occupation in a laud of large extent has been that the crest of the watershed is the presumptive interior limit, while the flank boundaries are the limits of the land watered by the rivers debouching at the point of coast occupied. The extent of territory claimed in respect of an occupation on the coast has hitherto borne some reasonable ratio to the character of the occupation. But where is the limit to the ‘Hinterland’ doctrine? Either these international arrangements can avail as between the parties only and constitute no bar against the action of any intruding stranger, or might indeed is right.” Without adopting this criticism, and whether the “spheres of influence” and the “Hinterland” doctrines be or be not intrinsically sound and just, there can be no pretense that they apply to the American continents or to any boundary disputes that now exist there or may hereafter arise. Nor is it to be admitted that, so far as territorial disputes are likely to arise between Great Britain and the United States, the accepted principles of international law are not adequate to their intelligent and just consideration and decision. For example, unless the treaties looking to the harmonious partition of Africa have worked some change, the occupation which is sufficient to give a state title to territory can not be considered as undetermined. It must be open, exclusive, adverse, continuous, and under claim of right. It need not be actual in the sense of involving the possessio pedis over the whole area claimed. The only possession required is such as is reasonable under all the circumstances—in view of the extent of territory claimed, its nature, and the uses to which it is adapted and is put—while mere constructive occupation is kept within bounds by the doctrine of contiguity.
It seems to be thought that the international law governing territorial acquisition by a state through occupation is fatally defective because there is no fixed time during which occupation must continue. But it [Page 236] is obvious that there can be no such arbitrary time limit except through the concensus, agreement, or uniform usage of civilized states. It is equally obvious and much more important to note that, even if it were feasible to establish such arbitrary period of prescription by international agreement, it would not be wise or expedient to do it. Each case should be left to depend upon its own facts. A state which in good faith colonizes as well as occupies, brings about large investments of capital, and founds populous settlements would justly be credited with a sufficient title in a much shorter space than a state whose possession was not marked by any such changes of status. Considerations of this nature induce the leading English authority on international law to declare that, on the one hand, it is “in the highest degree irrational to deny that prescription is a legitimate means of international acquisition;” and that, on the other hand, it will “be found both inexpedient and impracticable to attempt to define the exact period within which it can be said to have become established, or, in other words, to settle the precise limitation of time which gives validity to the title of national possessions.” Again:
The proofs of prescriptive possession are simple and few. They are principally publicity, continued occupation, absence of interruption (usurpatio), aided, no doubt, generally, both morally and legally speaking, by the employment of labor and capital upon the possession by the new possessor during the period of silence, or the passiveness (inertia), or the absence of any attempt to exercise proprietary rights by the former possessor. The period of time, as has been repeatedly said, can not be fixed by international law between nations as it maybe by private law between individuals. It must depend upon variable and varying circumstances; but in all cases these proofs would be required.
The inherent justness of these observations, as well as Sir Robert Phillimore’s great weight as authority, seems to show satisfactorily that the condition of international law fails to furnish any imperative reasons for excluding boundary controversies from the scope of general treaties of arbitration. If that be true of civilized states generally, a fortiori must it be true of the two great English-speaking nations. As they have not merely political institutions, but systems of jurisprudence, identical in their origin and in the fundamental ideas underlying them, as the law of real property in each is but a growth from the same parent stem, it is not easy to believe that a tribunal composed of judges of the supreme court of each, even if a foreign jurist were to act as umpire, could produce any flagrant miscarriage of justice. Lord Salisbury puts the supposed case of a territorial controversy involving multitudes of people whose prospects may be darkened and whose lives may be embittered by its pendency and its decision. The possibility of such a case arising may be conceded, but that possibility can hardly be deemed a valid objection to a scheme of general arbitration which is qualified by the proviso that either party may decline to arbitrate a dispute which in its judgment affects the national honor or integrity. The proviso is aimed at just such a possibility and enables it to be dealt with as circumstances may require. The plan of Lord Salisbury, in view of such a possibility, is that all the forms and ceremonies of arbitration should be gone through with, but with liberty to either party to reject the award if the award is not to its liking. It is respectfully submitted that a proceeding of that sort must have a tendency to bring all arbitration into contempt; that each party to a dispute should decide to abide by an award before entering into arbitration, or should decide not to enter into it at all, but, once entering into it, should be irrevocably bound.
The foregoing observations seem to cover such of the suggestions of Lord Salisbury’s dispatch of May 18 last as have not already been [Page 237] touched upon in previous correspondence. By the original proposals of Lord Salisbury, contained in the dispatch of March 5 last, a protested award is to be void unless sustained by the appellate tribunal of six judges by a vote of five to one. He has since suggested, that such protected award may be allowed to stand, unless a tribunal of five supreme court judges of the protesting country shall set it aside for some error of fact or some error in law. Without committing myself on the point, it occurs to me as worthy of consideration whether the original proposals might not be so varied that the protested award should stand, unless set aside by the appellate tribunal by the specified majority. Such a change would go far in the direction of removing that want of finality in the proceedings which, as has been urged in previous dispatches, is the great objection to the original proposals.
I have the honor to request that you will lay the foregoing before Lord Salisbury at your early convenience, furnishing him, should he so desire, with a copy, which is herewith inclosed for that purpose.
I have, etc.,
- The consent of the Senate to the ratification of this treaty has not yet been given, but the injunction of secrecy has been removed.↩