Frederick William Holls.

The peace conference at The Hague, and its bearings on international law and policy online

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mittee. -^

ference. The most important declarations of the
various Governments were made at its meetings, and
it was soon evident that the question of the success
or failure of the Conference as a whole depended
almost entirely upon the chance of unbroken har-
mony in this Committee. Accordingly, when for a
time there appeared to be danger that at least one
great Power — the German Empire — might discon-
tinue its cooperation in the establishment of the
permanent Court of Arbitration, the sessions were
suspended In' common consent, in order to give an



THE WORK OF Till': Til IB,]) COMMITTEE 171

opportunity to the German representative, Dr. Zorn, Chapter v
to proceed to Berlin in order to discuss the objec-xegotiatious
tions which had been raised, which were technical,'
though by no means frivolous, in their nature. At
the suggestion of Prince Miinster and Ambassador
White, and with the cordial assent of the other
members of the Connnittee, Mr. Holls of the United
States also went to consnlt with Prince Ilohenlohe
and Count von Blilow npon the same snbject, and
the joint efforts of the two delegates were com-
pletely successful. Other similar crises were happily
averted without friction or publicity.

The Committee met at first in the famous Chinese Meetings,
room of the House in the Wood, but most of its
sessions were held in the beautiful and historical
Salle de Treves in the Binnenhof, in the city of The
Hague. The Committee held eighteen sessions, usu-
ally on Mondays, Wednesdays, and Fridays, most of
them lasting from two till six in the afternoon, and
the discussions were often of the greatest interest.
While the ordinary language used was, of course,
French, the familiarity of nearly all the members
with English and German led to the occasional use
of these languages — the secretary, Baron d'Estour-
nelles, giving notable assistance in the way of imme-
diate, accurate, and graceful translation.

Beyond any doubt, the work of this Committee personal
will remain, to those who were privileged to take^*^'"'"
part, the most memorahle feature of the entire
Conference. Bound together by a common endeavor
to accomplish what was recognized as an end as



17_> THE PEACE CONFERENCE AT THE HAGUE

Chapter V iioble iis it was difficult, the members soon dropped
Personal di})lomatic rescrve. Sincere personal esteem, as

remarks. . i r n i •

well as geniune good lellowship, appeased even the
most serious differences of opinion. The absorbing
interest shown in the work by the members them-
selves is evidenced by the fact that from first to last
no member w^as absent from any meeting, save only
M. Bourgeois, when summoned to Paris by the oft'er
of the Premiership of France, and M. de Martens
when on duty as President of the High Court of
Arbitration between Great Britain and Venezuela.
The plan and scope of this work preclude much
narration of a personal nature, wdiich otherwise
might not be wholly without interest. It may, how-
ever, perhaps be permissible to make more than a
passing reference to the delightful hours spent in the
company of these men.

To listen to the diplomatic wisdom of veteran
statesmen like Baron de Staal, Count Nigra, and
Lord Pauncefote ; to hear the profoundest problems
of International Law debated thoroughly and most
brilliantly by authorities like De Martens, Asser,
Descamps, Lammasch, and Zorn ; to observe the
noble idealism of Baron d'Estournelles, the sound
judgment of M. de Basily and Jonkheer van Karne-
beek, and the unerring prudence of Switzerland's
efficient representative, M. Odier, — and finally, to
watch the perfection of decision and tact in the firm
but most amiable management of all these various
elements by the Chairman, M. Bourgeois, — all this
would in itself be of sufficient general interest to



THE WORK OF THE THIRD COMMITTEE 173

deserve an enduring record. Unfortunately, this is chapter v
impossible, for in the absence of a stenographic
report, by far the greater and better part of the
debates — the animated discussions — are necessarily
lost. The admirable ^^roce.s verheaux of Baron
d'Estournelles summarize most accurately the action
taken, as well as many of the speeches made, and
they, together with the present writer's own recol-
lections and memoranda, form the basis of most of
the narrative which is hereinafter given, under the
appropriate article. One further personal remark
may be pardoned.

To every member of the Cotnite d' Examen, without
exception, the author is under the deepest obligation
for acts of personal kindness and good will too num-
erous to mention, and the knowledge that these were
intended also as proofs of friendship for the great
Republic which he had the honor to represent,
serves only to increase his sincere gratitude. From
first to last, there is not one jihase of the Committee's
work, nor of his intercourse with each of its members,
of which he cannot sincerely and thankfully say :
Haec olim metninisse juvahit.



The Convention for the Peaceful Adjustment of
International Differences

The Convention for the peaceful adjustment of
international disputes, dated and signed July 29th.
1899, requires comparatively little commentary or
explanation. A code of rules for international inter-



Preamble.



174 THE PEACE CONFERENCE AT THE HAGUE

Chapter V coursG IS iicaturally more simple than a code of law
for individuals, since questions arising between States,
multifarious and complex as they may be, are still
simplicity itself when compared to the innumerable
jural relations of private and municipal life.

The full text of the Convention is here given, and
besides the official minutes, the report made to the
Conference on behalf of the Comite d'Exarnen by
Chevalier Descamps has of course been taken as the
basis of the commentary, without, however, diminish-
ing the present writer's own responsibility.

The Treaty begins as follows : —

The Sovereigns and Heads of State [here follow
the names] represented at the Conference, animated by
a strong desire to cooperate for the maintenance of
general peace :

Resolved to second by their best efforts the friendly
settlement of international disputes :

Recognizing the solidarity which unites the mem-
bers of society of civilized nations :

Desirous of extending the empire of law, and of
strengthening the appreciation of international jus-
tice :

Convinced that the permanent institution of a
Court of Arbitration, accessible to all, in the midst
of the independent Powers, will contribute effectively
to this result :

Having regard to the advantages attending the
general and regular establishment of arbitral pro-
cedure :

Sharing the opinion of the August Initiator of the



THE ARBITRATION TREATY 175

International Peace Conference that it is expedient chapter v
to record in an international Agreement the principles
of equity and right upon which repose the security
of States and the welfare of peoples :

Being desirous of concluding a Convention to this
effect, having appointed as their Plenipotentiaries,
to wit : [here follow the names] .

TITLE I. ox THE MAINTENANCE OF GENERAL PEACE

Article 1. With a view to obviate, as far as The main-
possible, recourse to force in the relations between *^"'^"''? °^

CI ii CI- -r» 1-1 general peace.

otates, the signatory Powers agree to use their best
efforts to insure the peaceable adjustment of inter-
national differences.

This article, which is simply a general indication
and declaration of purposes, is intentionally drawn
so as to commit the Signatory Powers to the employ-
ment of " their best efforts " to insure, '' as far as
possible," the peaceful adjustment of any international
differences, without respect to the question as to
whether these latter may arise between Signatory
Powers, or between a Signatory Power and a Non-
Signatory Power, or between Non-Signatory Powers
only. All the following provisions of the treaty re-
garding the application of any of the detailed regula-
tions are carefully restricted in their application to
differences between two or more Signatory Powers,
and the employment of any one of the means sug-
gested is restricted to cases " where circumstances
permit."

The care will be noted with which the idea of the



176 THE PEACE CONFERENCE AT THE HAGUE



Chapter V

Respect for
sovereignty
once estab-
lished.



complete sovereignty of each State, regardless of its
size or power, has been safeguarded, })rovided only
that this status has once been admitted, and that it
is not itself the subject of controversy. While there-
fore the provisions of this article undoubtedly open
the door to the employment of the best efforts of
any or all of the Signatory Powers, to insure the
peaceful adjustment of any or all international dif-
ferences, even between tw^o semi-civilized or savage
States, the article could not be used as a cover for
any effort to interfere in any struggle wherein the
complete sovereignty or independence of either party
is the real object at stake.



TITLE II. ON" GOOD OFFICES AND MEDIATION

Good offices ARTICLE 2. In casc of a serious disagreement or
Xn'"^'^'^' coi^flict, before an appeal to arms, the Signatory
Powers agree to have recourse, as far as circum-
stances will allow, to the good offices or mediation
of one or more friendly Powers.

This article reaffirms the principles of the Declara-
tion of Paris of 1856, as follows : —

" The Plenipotentiaries in the name of their Gov-
ernments express the solemn wish that States be-
tween whom a serious disagreement arises, may,
before an appeal to arms, have recourse, as far as
circumstances allow, to the good offices of a friendly
Power."

The use of good offices and mediation finds its
general justification in the ties which bind together
the international society of civilized States, and is,



Declaration of
Paris.



THE ARBITRATIOX TREATY 177

moreover, designed to discredit the use of armed con- chapter v
tiicts as a means of settling international differences,
in the general interest of humanity and peace. The
incalculable damage which modern war may easily justification
inflict even upon States which are strangers to the ^°.tiJ.ies_
conflict itself, make the employment of good offices
and mediation more necessary than ever before,
whether for the prevention or settlement of armed
conflicts.

There is a nominal difference only, between good Difference
offices and mediation, and practically both of these oJ^^'^^HT*^
means of action are distinguished less by their ii^trin- '"^'^''^*'^"*
sic quality, than by the extent to which they contrib-
ute toward a friendly understanding. In other words,
good offices constitute a mild and more general form
of mediation. Very often mediation follows the
extending of good offices, and a third Power which
has begun to reestablish relations between the Pow-
ers in conflict is requested to participate in the fur-
ther negotiations : sometimes even to conduct them.
Diplomatic usage therefore makes no real distinction
between good offices and mediation, — the present
treaty in using both expressions looks simpl}^ toward
a conciliatory interposition.

The great advantage of mediation, when compared Advantage of
to other means calculated to settle international con-
flicts, is, above all, the remarkable elasticity of its ac-
tion, and the possibility which it affords of adapting
itself to particular circumstances in each given case.
Addressing itself to the free consent of the parties,
mediation by no means threatens the principle of



ITS 77//-; PEACE CONFERENrE AT THE HAGUE

ciiMptcr V their sovereignty any more than the liherty or mde-
Advaiiui-e of pendence of States. It acts by influencing their free
will, without in the least impairing it, or even throw-
ing doubt upon it. By the very fact that good offices
and mediation must proceed in tlie most friendly and
courteous manner, and can never exceed the bounds
of conciliatory advice, they offer the double advan-
tage of first, leaving entirely intact the indepen-
dence of the Powers addressed, and secondly, of being
entirely available, not only for conflicts of right, but
also for those of interest, thus adding materially to
the resources available for the preservation of joeace.
It would seem that this instrument of ordinary diplo-
matic practice, handled with tact and skill, and
directed by a sincere desire to serve the cause of
peace, is destined to play in the future a striking
and beneficial role. At the same time it must be
confessed that up to this time mediation has played
one of the most modest parts in the settlement of
international controversies, and this fact will appear
most clearly from the history of recent conflicts. If
the reason is sought, it will be found that the question
of mediation is usually put in a manner which is
as unsatisfactory in theory as it is in the practice of
International Law.
Former agree- The treaty of Paris and the Protocol of the Con-
™'j;;^.^'"''''"'-gress of Paris, as well as the treaty regarding the
Congo, signed in Berlin in 1885, all impose the obliga-
tion upon the parties in conflict of "having recouj-se to
the mediation of one or more neutral Powers." This
character of mediation, most irregular in theory, has



THE ARIilTRATIOX TREATY 179

the further disadvantage of being quite iniattainable chapter v
ill practice. The request for mediation necessarily
presupposes a preliiiiinaiy agreement between the
interested States on the subject of the necessity for
it, and of the existence of the proper occasion. Such
an agreement is hardly ever possible in tlie excite-
ment of a controversy between diametrically oppos-
ing interests. At all events, it is out of the question
to make the recourse to mediation obligatory for the
States whose interests are at stake, for the reason
that the very request presupposes an agreement of
the parties concerned regarding the choice of the
mediator. If, nevertheless, treaties impose such a
duty upon States in case of controversy, they generally
remain a dead letter, for no treaty can oblige States
in dispute to limit their choice to such or such a
mediator. These facts are proven by the entire
history of international relations since the time of
the Congress of Paris of 185G. During this period
there have been several cases when neutral States, on
the basis of Article 23 of the Congress of Paris, have
proposed their mediation or good offices to States
in conflict, but there has not been a sim/Ie case when Mediation has
any States in conflict have addressed to neutrals a"oked!^"'"'
request for mediation. In 1898, during the contro-
versy betw^een France and Great Britain, concerning
Fashoda, neither one nor the other of these Powers
dreamed of having recourse to the provisions estab-
lished by the Conference of Berlin in 1885, and re-
questing the mediation of a third Power. Other
and similar examples could easily be cited.



180 THE PEACE COXFKRENCE AT THE HAGUE

Chapter V As to tliG obligation of neutral States to offer their

Offer of mediation to States in conflict, so far as it has not
mn favored bccn defined by treaties, it lias never been recognized
heretofore. ^^ observed. In fact, so far as any such duty is con-
cerned, many writers on International Law not only
affirm that neutral States are not so obliged, but,
more than that, they almost deny their right to offer
their mediation to States in conflict.

Bluntschli and Heffter regarded mediation as dan-
gerous and harmful m^eddling. Hautefeuille and
Galiani advised States ordinarily to abstain from
mediation, for fear of alienating, without any reason,
the sympathies of one or the other parties to the
conflict. Numerous examples of serious disagree-
ments might be cited, which resulted in war, but
which never suggested to neutral Powers an attempt
at mediation ; yet such an effort, especially in cases
where it could be made simultaneously by several
Powers, might have averted wars, the consequences
of which have been incalculable for all the States
constituting international society. In many cases
the proposition of mediation has been made so late,
and in such uncertain terms, that it could no longer
prevent a declaration of war.

It was thus, for instance, that the French Govern-
ment in 1870 refused the good offices of Great Britain
at the outbreak of the conflict between France and
Germany.
Mediation to Mediation is often proposed, not with the object of
war!'"""*" "" preventing, but with that of terminating a war.
Several recent w^ars — those between Austria and



THE ARBITRATION TREATY 181

Prussia in 186G, between Chile, Peru, and Bolivia chapter v
in 1882, and between Greece and Turkey in 1897,
besides some others, were terminated through the
mediation of neutral Powers. Had the same Powers
shown half the energy in attempting to prevent
these conflicts, it is fair to assume that, at least in
the two latter cases, the outbreak of hostilities might
have been averted.

In view of all these facts, it was but natural Mediation
that the Conference should have established media-aperinanent
tion as a permanent institution. The principle of ^"^^"'""""'
isolation which hitherto has almost dominated the
political existence of every nation, must hereafter
give way to a close solidarity of interests and a com-
mon participation in the moral and material benefits
of civilization. Modern States cannot remain indif-
ferent to international conflicts, no matter where they
may arise, and who may be the parties. Under
present conditions, war, though between two States
only, must be regarded as an international evil, which
should be prevented wherever possible, by interna-
tional means.

It must not, however, be understood that the good
offices of other Powers are unreservedly recognized Not to be con-

T J 1 1 r* • T ^' ^ fouuded with

as an every-day method oi appeasmg ordmary diplo- meddling,
matic differences. The language used is " In case of
serious disagreements or conflicts, before an appeal
to arms." Outside of these comparatively narrow
limits, the offer of good offices or mediation would
constitute simple meddling, without justification and
not without damrer.



182 THE PEACE CONFERENCE AT THE 11A<;UE

Chapter V 111 tliG disciissioii of tlus article in the Comite

The restrif- (V Exw^cii, tlic luse o£ tlic words " cis far as circLim-

tion " as far mi n " i • i ^

ascircuui- stanccs Will allow was objected to upon the ground
allow!" ^' that such a Ihnitation practically defeated the object
of the article. M. Asser of Holland pomted out that
an obligation which naturally had no sanction to
enforce it, would seem to have become invalidated
entirely with the addition of such a general clause,
but the Committee shared the views expressed by
M. Bourgeois of France, that the article was at best a
very general statement of principle, the application
of which, to the most diverse states of fact it was
impossible to foresee. It seemed prudent to avoid
making it absolute and thus incur an opposition
which might be fatal to the entire Convention.

An attempt was made to have the qualifying
phrase read " so far as exceptional circumstances
may not prevent," but finally it was decided that the
safest and most satisfactory expression was that of
the text.

Article 3. Independently of this recourse, the
Signatory Powers consider it to be useful, that one or
more Powers who are strangers to the dispute should,
on their own initiative, and as far as circumstances
will allow, offer their good offices or mediation to the
States at variance. The right to offer good offices or
mediation belongs to Powers who are strangers to the
dispute, even during the course of hostilities. The
exercise of this right shall never be considered by
one or the other of the parties to the contest as an
unfriendly act.



THE ARllITRATION TREATY 183

The subject of this article — tlie offer of good Chapter v
offices jiik] mediation — is most important. The The offer of

• T 1 1 • f'p 1 1 • 1 • 1 - good ottices

riglit to make this otter has hitherto, witli tew excep- and media-
tions noted al)ove under Article 2, been regarded as*^°"'
inherent in every State in the interests of humanity
at large, and by virtue of Article 27 of the present
Convention, it must hereafter also be regarded in the
light of a duty, based upon facts and conditions
agreed upon by the society of civilized nations. The
power to offer good offices is inherent in the indepen-
dence and sovereignty of States, inasmuch as it is
identical in most cases with the rio;ht of watchino;
and protecting their own individual interests. The
necessary safeguard is to be found, not in denying
the existence of this right or in discouraging its exer-
cise, but in the recognition of the corresponding right
on the part of other independent nations to refuse the
offer. ^ M. Veljkovitch offered an amendment to the

1 A perfect example of the tender of good offices, as distinguished
from mediation, may be found in the action of the American Govern-
ment in answer to the petition of tlie South African Republics in
March, 1900, althougli the correspondence in this case is cliaracter-
ized by an inaccui'ate use of the word " intervention," in the original
request of the Republics. The Secretary of State communicated the
request to the British Government, by way of friendly good offices,
adding that the President "hoped that a way to bring about peace
may be found," and saying that " he would be glad to aid in any
friendly manner to promote so happy a result." In reply, the British
Government " thanked the President for the friendly interest shown
by him," adding that "Her Majesty's Government cannot accept the
intervention of any other Power" — the word "intervention" being
of necessity used, although "good offices" was really meant.

The general effort of the European Powers to avert the Spanisli-
American War of 1898 may also be cited in this connection, though



Ibl THE PEACE CONFERENCE AT THE HAGUE

Chapter V Article recognizing the right to refuse the offer of
Refusal of the good officcs iuid mediation in terms, and stating that
a refusal should not be considered as an unfriendly
act. Although the correctness of his point of view
was fully recognized, the Committee on Arbitration
did not deem it Avise or necessary to provide for such
an eventuality in the very text of the Convention.
The importance of the spontaneous offer of good
offices and mediation on the part of a third Power
will be recognized, when the difficulty is realized with
which States, in controversy, or after the exchange of
severe diplomatic notes, can ever be brought to an
agreement regarding a joint recourse to some medi-
ating Power. Unfortunately such an attempt has
hitherto been surrounded by so many obstacles, that
Powers who are most sincerely desirous of helping to
safeguard the interests of peace are driven to content
themselves with complete inaction. Under these cir-
cumstances, it seems most important to recognize in
advance, and without ambiguity, in a Convention ex-
pressing the judgment of all, the exact status in
International Law of useful efforts in this direction.
In this manner, mutual good will is encouraged, and
estrangement, by reason of an offer in the interests
of peace, will be avoided. Tlie limitation in the
Article " so far as circumstances may allow " again
indicates that there is no intention to encourage in-
opportune intervention. In other words, a j)recise

definition is more diflBcult in that case. The fact is, that hardly any
two examples will be found to resemble each other closely, and the
subject needs further development by experience.



THE ARBITRATION TREATY 185

knowledge of the facts and saving common sense arecbai-turv
recognized as being not less important and necessary
than a desire for peace.

Upon the motion of Count Nigra the second
paragraph giving the right to extend good offices or
mediation even during the course of hostilities was
inserted, and the same statesman was the author of the
last paragraph, which is in the nature of a guarantee
to Powers disposed to interest themselves on behalf
of general peace, that in no event shall the expres-
sion of their good will be regarded in the Inter-
national Law of the future as unfriendly, or lead to
unpleasant complications.

Article 4. The part of the mediator consists in Duty of the
reconciling the opposing claims and in appeasing the ™®'^*^*°'"-



Online LibraryFrederick William HollsThe peace conference at The Hague, and its bearings on international law and policy → online text (page 13 of 39)