within the categories of disputes mentioned in Article 13 of the Covenant might do so, and among them judicial instead of arbitral procedure would prevail. All they needed to do was to accept the procedure which becomes a court at signing or ratifying a protocol to this effect, to be annexed to the constitution of the court, or to declare at some later time their adherence to this method; and in the protocol they might accept unconditionally or upon condition of reciprocity. This is a very wise provision. It allows the stragglers to catch up, without staying the arm of progress. It does not compel a nation against its will to bind itself, but it allows public opinion to have its say and it trusts to the experience of the nations with judicial procedure to convince the doubting Thomases. These are, of course, the large States, and naturally so, because they are the ones who renounce their right to settle their disputes by force of arms, whereas the smaller States, unable perhaps to resort to war, receive the protection of justice, before which one day even the stiffest neck will bend.

In the draft of the Advisory Committee, the interpretation of the judgment of the court was included in the category of cases to be submitted. This the Assembly rejected, apparently feeling it unwise to go beyond the letter of Article 13 of the Covenant.

Again, the elaborate provision of the draft requiring advisory opinions of the court to be submitted to the Council or Assembly upon request of one or the other body, disappears, and its place can hardly be said to be taken by the concluding paragraph of Article 38, as modified by the Assembly, which allows the court "to decide a case ex æquo et bono, if the parties agree thereto."

The provision just quoted is believed to be a mistake. A court of justice should be a court of law. It should not be authorized to sit as a court of arbitration, deciding questions presented to it upon the principle of give and take, or upon its own sense of the fitness of things. This is the function of the so-called Permanent Court of Arbitration. The opening article of the project provides that the Court of Arbitration, on the one hand, and the Permanent Court of International Justice, on the other, are to be distinct bodies. This paragraph breaks down the separation and makes the court of justice to a certain extent a competing body.

Another modification which tends to confuse the functions of the Court of Justice with the Court of Arbitration is Article 59 of the project as adopted by the Assembly. This is one of the few cases in which the views of the Council prevailed. It seems to be also a triumph for the British member, who urged its acceptance. The article in question provides that the decision of the court has no binding force except between the parties and in respect of that particular case. It would be expected that this amendment should have come from the Continent instead of from Great Britain, where judicial decisions are binding precedents for future judgments. However, the amendment was not meant to indicate a preference

of Continental over British practice. It was apparently in keeping with arbitral procedure, in which awards bind only the parties and are limited to the case. It was the natural consequence of making a resort to the court depend upon a special agreement of the parties defining the issue to be submitted to the court. It is out of place, it is believed, in a court with a jurisdiction, however limited, and it is a final indication on the part of the great Powers that, after all, only the things possible in 1907 stood a chance of being accepted in 1920. The large Powers had the choice between judicial procedure in the project drafted by the Advisory Committee, and arbitral procedure in the draft convention of 1907 for the Court of Arbitral Justice. They preferred the latter. They have given to the Court of Arbitral Justice a permanent personnel, so that it does not need to be constituted anew for each case. They have allowed, however, the States which prefer a court of justice to a court of arbitration to express their preference by adopting alternative procedure. In so doing, they have no doubt safeguarded their own interests, for they were apparently thinking of themselves. They have, however, and in this they are to be commended, allowed the experiment to be tried by those who wish to do so. The future will decide which method is to prevail.*

JAMES BROWN SCOTT.

AMERICAN AND BRITISH CLAIMS ARBITRATION TRIBUNAL

The Governments of the United States and Great Britain being desirous that certain pecuniary claims outstanding between them should be referred to arbitration, in accordance with the provisions of the Hague Convention for the Pacific Settlement of International Disputes, signed the Pecuniary Claims Agreement at Washington on August 18, 1910.1 This agreement provided for the appointment of an arbitral tribunal to hear and decide the cases submitted, which cases were to be included in schedules agreed to by the two governments.

The first schedule2 of claims to be submitted to the Tribunal was signed July 6, 1911. It contained about four hundred claims. These claims were divided into four classes, as follows:

Class I. Claims based on alleged denial in whole or in part of real property rights.

Class II. Claims based on the acts of the authorities of either Government in regard to the vessels of the nationals of the other Government,

* A composite showing the project as originally drafted by the Advisory Committee of Jurists and as modified by the Council and by the Assembly of the League of Nations is printed as an appendix to the Proceedings of the Executive Council of the Society for 1920.

1 Printed in this JOURNAL, Supplement, Vol. 5 (1911), p. 257.

2 Ibid., p. 261.

or for the alleged wrongful collection or receipt of customs duties or other charges by the authorities of either Government.

Class III. Claims based on damages to the property of either Government or its nationals, or on personal wrongs of such nationals alleged to be due to the operations of the military or naval forces of the other Government or to the acts or negligence of the civil authorities of the other Government.

Class IV. Claims based on contracts between the authorities of either Government and the nationals of the other Government.

The agreement and schedule of claims were ratified by an exchange of notes between the two Governments on April 26, 1912.

Sir Charles Fitzpatrick was appointed arbitrator on the part of Great Britain, and Mr. Chandler P. Anderson, arbitrator on the part of the United States. These two national arbitrators chose M. Henri Fromageot of France, as umpire.

The Arbitral Tribunal, so constituted, held its first meeting in Washington in May, 1913, and an adjourned meeting in Ottawa, Canada, in June, 1913. At this session the following cases were argued: Lindisfarne and Canadienne (claims of Class II); Union Bridge Company and Hardman (claims of Class III); and King Robert and Yukon Lumber (claims of Class IV). On June 18, 1913, the Tribunal announced its awards3 in the cases of Lindisfarne, Hardman, Yukon Lumber and King Robert.

The tribunal held its next session in Washington, March-May, 1914, when the following cases were argued: Studor (claim of Class I); Coquitlam, Favourite, Wanderer, Kate, Lord Nelson, Eastry, Newchwang, Sidra, Thomas F. Bayard, Jessie, Pescawha, Frederick Gerring, David J. Adams, Tattler, Argonaut and Jonas H. French (claims of Class II); Home Missionary Society, Great Northwestern Telegraph Co. and Cadenhead (claims of Class III); and Hemming (claim of Class IV). On May 1, 1914, the Tribunal announced its awards in the cases of Canadienne, Cadenhead, Frederick Gerring, Great Northwestern Telegraph Co., Eastry, and Lord Nelson.

The Tribunal then adjourned to meet abroad in July, 1914, for the discussion and preparation of the awards in the remaining cases argued and submitted at the previous sessions of the Tribunal, with the exception of the case of Union Bridge Company in which a reargument had been ordered. Owing to the outbreak of war while the Tribunal was at work on these cases, it was prevented from completing these awards, and during the war it was found impossible for the Tribunal to meet and continue this work.

It was subsequently arranged, however, between the two Governments that without a formal meeting of the Tribunal, awards should be rendered 3 Printed in this JOURNAL, Vol. 7 (1913), p. 875.

4 Ibid., Vol. 8 (1914), p. 650.

5

in all cases awaiting decision, in which the awards had been drafted and discussed by the Tribunal prior to the outbreak of the war, and pursuant to this arrangement the awards of the Tribunal in the cases of Coquitlam, Home Missionary Society, Tattler and Hemming were announced by M. Fromageot at Paris on December 18, 1920. It is expected that awards in several of the other cases which were under discussion by the Tribunal in 1914 will shortly be announced under this same arrangement.

Arrangements are in contemplation between the two Governments for a meeting of the Tribunal for the purpose of preparing the awards in the other cases already argued and for hearing the remaining cases included in the above-mentioned schedule of claims.

The resumption of the work of the American-British Claims Arbitration Tribunal is a welcome indication of the progress toward normalcy in the settlement of international controversies by the rule of law and justice in place of force and politics.

CHANDLER P. ANDERSON.

THE AALAND ISLANDS QUESTION

The submission to the League of Nations of the Aaland Islands dispute between Sweden and Finland, has been given considerable publicity for purposes of propaganda, but the interesting problems involved in the dispute have been given but slight attention.

The main uncontested facts in the case are as follows: The Aaland Islands are situated at the entrance of the Gulf of Bothnia, and are separated from Sweden by about 50 kilometers, and from Finland by about 70. They are about 300 in number, with an area of approximately 1,442 square kilometers, and a population of 25,000 inhabitants, almost entirely Swedish. The islands contain many excellent harbors for big ships.

Until the year 1809, except for a short period of Russian domination at the beginning of the Eighteenth Century, the Aaland Islands were part of the Kingdom of Sweden. They were then conquered by Russia and incorporated, with Finland, into the Russian Empire. By the Treaty of Paris in 1856 the islands were "demilitarized," that is to say, in the interests of Sweden and other nations of Europe, it was forbidden to fortify these strategic islands. Russia saw fit, however, during the recent war to fortify them without protest from either her allies or adversaries.

Finland declared its independence as a nation on the 15th of November, 1917; was formally recognized by the Soviet Government of Russia on the 4th of January, 1918, and by the Swedish Government on the same date. It appears that as early as the 20th of August, 1917, delegates of the communes of the Aaland Islands assembled at Finstrom and decided 5 Printed at page 292.

to bring to the notice of the Swedish Government and Parliament that the population of the islands for special reasons keenly desired that the islands should be reunited to the Kingdom of Sweden. This resolution was communicated to the Swedish Government on the 27th of November. By subsequent plebiscites about 95 per cent. of the population declared in favor of reunion with Sweden. A deputation was received by the King of Sweden on the 3rd of February, 1918. A fact of much significance was the landing of Swedish troops on the islands at the request of the inhabitants to secure the removal of the Russian troops who would not depart unless the Finnish "White" troops also left at the same time. The Swedish troops then withdrew likewise.

Already on the 16th of January, 1918, the King of Sweden, in the speech from the throne to the Rikstag, had expressed his conviction that the independence of Finland would facilitate a satisfactory settlement of the Aaland Islands question. After private negotiations, Sweden formally requested the Government of Finland in November, 1918, to arrange for a plebiscite to decide the political fate of the islands. Such a plebiscite would naturally have been almost unanimously for Sweden, and was refused by Finland on the general ground that it is essential to the economic and the military security of Finland to retain the islands. The Finnish Government furthermore declared that: "In opposing the Swedish Government's proposal to submit the question of the future status of the islands to a plebiscite of the population, [it] is following the principles according to which several territorial questions were decided by the Peace Conference, in cases of conflict, as here, between the wishes of a minority and the economic and military security of a nation."'1

The question was brought to the attention of the Council of the League of Nations by the inhabitants of the Aaland Islands and by the Swedish Government, and the following resolution was unanimously adopted by the Council with the assent of Sweden and Finland on the 12th of July, 1920:

An International Commission of three jurists shall be appointed for the purpose of submitting to the Council, with the least possible delay, their opinion on the following points:

(1) Whether, within the meaning of paragraph 8 of Article 15 of the Covenant, the case presented by Sweden to the Council with reference to the Aaland Islands deals with a question that should, according to International Law, be entirely left to the domestic jurisdiction of Finland.

(2) The present position with regard to international obligations concerning the demilitarization of the Aaland Islands.2

This commission was organized as follows: Professor F. Larnaude, Dean of the Faculty of Law at Paris, President; Professor A. Struycken,

1 Official Journal, League of Nations, Special Supplement No. 1, August, 1920, p. 5. 2 Ibid., No. 3, October, 1920.