Frederick William Holls.

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

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feelings of resentment which may have arisen be-
tween the States at variance.

Articles. The functions of the mediator are atwheufunc-
an end from the moment when it is declared either *^*'"^^^^^®-
by one of the parties to the dispute or by the medi-
ating powder itself, that the methods of conciliation
proposed by it are not accepted.

The function of the Power offering good offices or
mediation, and the relations in which the very offer
may leave all parties concerned, may be so indefinite
that it becomes important to provide a method for
immediately ending all possi1)le doubt upon the sub-
ject. By leaving it within the power of either party
concerned, or of the mediating State, to declare the
exact time at which all furtlier efforts shall cease,



IriO TIIE PEACE CONFERENCE AT THE HAGUE



Advisory
clia racier of
^iiod offices
and media-
tion.



Chapter V tliis poiiit would .sceiii to liavB been sufficiently safe-
guarded.

Article G. Good offices and mediation, whether
at the request of the parties at variance or upon the
initiative of Powers who are strangers to the dispute,
have exclusively the character of advice, and never
have binding force.

This Article emphasizes the most essential (charac-
teristic of good offices and mediation, namely, that
of being simply advisory. Mediation is not arbitra-
tion, nor can it be in the nature of an intervention
backed up by any physical force whatever. The
proceeding which has heretofore been called " armed
mediation" was improperl}' so named. According to
the present convention the two terms " mediation "
and *•' coercion" are absolutely contradictory. It was
particularly stated and emphasized that no possible
authority or right could arise under this title for any
kind of hegemony or suzerainty, or the attempt to
impose individual or collective views by way of obli-
gation or restraint. Mediation must forever remain
a friendly counsel, freely offered or asked, and as
freely accepted or declined.

Article 7. The acceptance of mediation cannot,
unless there be an agreement to the contrary, have
the effect of interrupting, delaying, or hindering
mobilization or other measures of preparation for
war. If mediation occurs after the commencement
of hostilities, it causes no interruption of the military
operations in progress, unless there be an agreement
to the contrary.



No interrup-
tion of pre-
parations of
war, or of
hostilities.



THE ARBITRATION TREATY 187

This Article, of which Count Nigra is the author, chapter v
seemed necessary in order to make tlie acceptance of
good offices or mediation easy, or even possible, on
the part of Powers having universal military service,
and being ready for war at very short notice. No
such Power could safely request or accept good offices
or mediation if such a request oi- acceptance implied
the slightest obligation to refrain from immediate
and continued preparation for war. Moreover, even
if the obligation to refrain from such preparations
were mutual, the impossibility of control might
easily lead to recriminations which would still
further embitter feelings, complicate the situation,
and increase instead of diminishing the danger of
hostilities. Mediation will be all the more accept-
able when it is totally dissociated from any fear of
impaired defence or of danger to the State.

SPECIAL MEDIATION

Article 8. The Signatory Powers are agreed
in recommending the application, when circumstances
allow, of special mediation in the following form : —

In case of a serious difference endangering peace,
the States at variance shall each choose a Power to
whom they intrust the mission of entering into direct
commmiication with the Power chosen by the other
side, with the ol)ject of preventing the rupture of
pacific relations. During the period of this mandate,
the term of which, unless otherwise stipulated, cannot
exceed thirty days, the States in conflict shall cease
from all direct communication on the subject of the
dispute, which shall be regarded as having been re-



188 Till-: PEACE CONFERENCE AT THE HAGUE

Chapter V f erred exclusively to the mediating Powers, who shall
use their best efforts to settle the controversy.

In case of a definite rupture of pacific relations
these Powers remain charged with the joint duty
of taking advantage of every opportunity to restore
peace.

At the second session of the Coniite cV Examen,
May 29, the first draft of this Article was introduced
by Mr. Holls of the United States, as a personal
proposition, for which neither his Government nor
his colleagues were in any manner responsible. No
claim, whatever, is made for originality of the idea,
which the author remembers to have seen made as a
suggestion, years ago, in a source of which no trace
whatever has been left in his recollection. More
recently the idea was formulated with great force
by M. de Nelidoff, the Russian Ambassador to Italy,
as follows : —
M. de ''The first consideration is not to insist upon the

suggestion, parties submitting their dispute to the judgment of
a tribunal — possiljly impartial, but .cold and indiffer-
ent, and moved only by the most general considera-
tions regarding the interests or the honor of the
parties themselves. What should be done is to insist
that, before beginning hostilities, the contending
parties should intrust the settlement of the affair to
representatives in whom they can have absolute con-
fidence : who will act according to instructions, and
who will each defend the honor of his principal as
he would his own. Everything should then be left
to these seconds. They should first decide whether



THE ARBITRATIOX TREATY 189

the quarrel necessitates a duel, — then they should chapter v
see whether no honorable means could be found to
avoid an encounter. If they could not agree on this
subject, they might call in a third party, or communi-
cate their suggestions to their principals. But the
final determination should always be left to the inter-
ested parties. If in the end the seconds decided that
there was nothing to do but to have them ' fight it
out,' they would do so. But if they resorted to arms
without having had recourse to these preventive pre-
liminaries, and a catastrophe resulted, the winner
should be treated, not as a duelist, but as an assassin.
This should also be the rule in the case of an inter-
national war."

In the winter after the appearance of the second
circular of Count Mouravieff, the late Lord Russell
of Killowen, Lord Chief Justice of Great Britain,
strongly recommended the same idea in a most happy
after-dinner speech. It had been discussed by the
author with intimate friends in America just previous
to his departure for The Hague, and its introduction
had the cordial indorsement of Ambassador White,
President of the American Commission.

Upon its introduction, the Article was revised, as Adoption of
far as its language was concerned, by M. de Martens ^^® article.
and Chevalier Descamps, and it was printed, distri-
buted, and reported to the principal European Govern-
ments immediately. At the third session of the
Comite (VExamen on May ol, it was unanimously
adopted in principle, and thereafter it was ])\\.i into
its present final form.



1!)() THE PEACE CONFERESCE AT THE HAGUE

Chapter V Tlie striking parallelism between the development

Anaiojry of Warfare and the practice of duelling has often been
fare and pointed oiit bj historians of international law. In-
dueiiiiiK- creasing civilization has been uniformly directed
toward safeguarding rights, however general, and
diminishing unrestrained lawlessness or arbitrary
methods in every field. Without entering at this
time into the philosophical question of justification
for either war or the duel, it is a well-known fact
that the institution of duelling still exists, and has
a commanding influence upon great classes of society.
At the same time the trend of its development shows
unmistakable sig-ns of its o-radual extinction. With
the advancement of civilization and the continued
introduction of new safeguards in the way of regu-
lations, the element of force recedes as that of
law advances. Whether in its mildest form, which
may be illustrated by German student encounters,
or in the border feuds which still disgrace some
regions of the southern and southwestern states of
the American Union, previ(jus notification is con-
sidered absolutely indispensable, and sudden en-
counters — cluellum stihitaneimi — shooting at sight,
is considered not only criminal, but dishonorable.
Where the institution is sincerely regarded as a pro-
tection to the honor of an officer and a gentleman, a
duel is possible only after a previous elaborate agree-
ment upon the subject. In the negotiations leading
up to this agreement it is understood, and considered
not only permissible but obligatory, by the highest
authoi'ities in the institution itself, that everything



THE A Rliir RATION TUEATY 191

should be done by the representatives ut" the parties Chapter v
in conflict to avoid the actual encounter, and to settle
the difficulty peaceably; the number of permissible
weapons has been greatly reduced, the conditions of
the encounter are adapted to the circumstances of the
case, and they are made as light as possible. The fact
is that the duel is not nearly as deadly an affair as it
has formerly been, and a fatal result invariably leads
to universal regret and recriminations against the
entire institution. In at least two chivalrous and
progressive countries of the world, namely, the United
States and the British Empire and its dependencies,
the institution has become virtually extinct.

The analogy between this development of practice
with regard to duelling and the history of some of
the laws of warfare is surprisingly close and interest-
ing. It may best be illustrated in the history of the
subject in Germany, where unrestrained feudal war-
fare survived longest, and where even to this day
the institution of duelling has its most earnest advo-
cates and defenders.

The necessity of a challenge to a feud was un- The necessity
doubtedly the first restraint put upon promiscuous °^'^'^^'^''^"^®'
murder, and the first safeguard permitting a feudal
lord to stir about without being in complete readi-
ness, at least for defence, at any moment. In the
year 1187, in a decree of the German Diet {Reich i>-
abschied) at Niirnberg, the necessity of a declara-
tion of hostilities — the so-called cliff idatio — was
proclaimed as follows: ''We decree and direct by
this edict that he who intends to do damaire to an-



192 THE I'KACE CONFERENCE AT THE If AGUE

Chapter V otliGr, OF to iiijure him {verletzen), shall give him
Necessity of a notlce at least three days l)efore, by a safe messen-

ehalleiige. " rpi • i + 1 "^ I 11

ger. I his decree seems to liave been generally
obeyed. Such a declaration of a feud [Fehdebrief) is
quoted in the pamphlet of Dr. Eniil Steinbach, Zur
FriedenshewegiuKj, Vienna, 1899, p. 56, as follows,
dated 1430 : ''Know ye, the Burgomaster and Coun-
cillors of ^ the City of Speyer, that I, Winrich von
Fischnich, wish to be your enemy, on account of the
complaint which I have against you, and damage
may be done, however this may happen, neverthe-
less I wish to secure my honor against you and yours
by this my open authenticated letter," etc., etc.

In war the necessity of a solemn declaration of hos-
tilities, addressed direct to the opponent, was strictly
required from antiquity dow^n to the eighteenth cen-
tury. Only in recent times has the practice l^ecome
less formal in this respect, and either j)^^hlic ex-
planations, diplomatic notes, manifestoes, proclama-
tions, etc., in connection with the withdrawal of
regular diplomatic representatives, have been substi-
tuted for a formal declaration of war. The reason of
this change is obviously the fact, that with modern
methods of international communication secrecy in
preparing for war has become practically impossible,
and unexpected raids or invasions at the time of a
declaration need no longer be feared. At the same
time some formal declaration of the existence of a
state of war is made all the more important on
account of the clearly defined duties of neutrals, and
the omission of such a formalitv would meet with



Till-: AiiiiirnATiox treaty 193

universal reprobation. The most recent and by far chapter v
the most striking illustration of this fact is to be
found in the notice addressed by the British Govern-
ment to all Governments with which it had diplomatic
relations, announcing that a state of war existed be-
tween Great Britain and the South African Republic,
notwithstanding the fact that the Government of Great
Britain regarded the hostilities themselves only in the
light of a military execution against a vassal State,
where no formal declaration of war was required.

With reference to the restraint upon the time, Restraint as
place, and method of the encounter, nothing needs pjace."^ '*"
to be added, so far as the duel is concerned. It is
generally recognized as the duty of the seconds to
carefully safeguard all these points. In the time of
feudal warfare similar restraints were gradually in-
troduced, often by the Church, and were later adopted
in the decrees of the Diet of the Empire. Thus arose
first the well-known limitation of feuds with regard
to time — the command of God's Peace, according to
which, during the holy periods of the Church year,
as well as on several days in each week, generally
from Thursday evening until Monday morning, an
absolute armistice was proclaimed and every act of
feud strictly prohibited. Then came the exemption ^-'^^"^p^"^*'"^-
of certain persons and places, according to Professor
von Zallinger,' as follows : unarmed people, the clergy,
women, peasants, and merchants were not to suffer
by the feuds of the knighthood. The peace of con-

^ Otto V. Zallinger, Wtsen uiid UrsprutKj des Furnudismus uii all-
deutschen Privatrecht, Vienna, 1898.



U)4 THE PEACE CONFERENCE AT THE HAGUE



Chapter V



Feuds per-
mitted
agaiust the
person hut
not against
property.



Neutraliza-
tion.



secrated places, churches, and cemeteries, and of the
village inside of its limits and the peace of public
highways should not be distui'bed by the feud. With
particular emphasis, in several decrees of the peace
of the land {landfrieden), the sanctity and inviola-
bility of the home is proclaimed, and gradually the
most interesting and significant principle is evolved
that only such feuds shall be permitted as are directed
immediately against the person, the body, and the
life of the enemy, but not against his property.
Zallinger cites two provisions of this kind from the
end of the twelfth century : —

" Si quis liabet inimicum, i^erseqidtur emn in campo
absque damno rerum suarum.'' (If any one has an
enemy, let him pursue him in the field without
injuring his property.)

" Qui eumque hahet manifestwn inimicum, earn
. . . in 2^ersona et non in rebus laedere j^otest.'' (He
who has an open enemy may injure him in his per-
son, but not in his property.)

The similarity in the development of the laws of
war is manifest. Thus far there has been no attempt
to limit the time of warfare, the going into winter
quarters being obviously for entirely different reasons,
and the attempts of some enthusiastic Sabbatarians
to introduce a day of rest during the Spanish-American
War having been generally dismissed with a smile.
On the other hand, the exemption of particular per-
sons and property from the consequences of warfare,
— their " neutralization" according to the terminology
of international law, — is now universally accepted



THE ARBITRATION TREATY 195

as a matter of course in an increasing nnmber of Chapter v
instances. Whole States have been neutralized, as,
for example, Switzerland, Belgium, and Luxemburg,
as well as single provinces, such as Chablais and
Faucigny on the southern shore of the lake of (^eneva,
and the Suez Canal. The provisions adopted by the
Peace Conference, regarding military hospitals and
ambulances and the personnel connected therewith,
as well as non-combatants in general, have been
referred to in the discussion of the Convention on
the Laws of War.

The closest parallelism of similar phenomena, both Preventive
in duelling and in the history of unrestrained feudal
Avarfare, is to be found in the preventive measures.
So far as duelling is concerned, these are well known,
and need no lengthy discussion. The analogous de-
velopment with reference to feudal warfare is char-
acterized by the fact that by the middle of the
thirteenth century, especially after the great law of
peace of Frederick IL in the year 1235, the right to
feudal hostility, which up to that time was absolutely
unlimited, was thereafter restricted to cases in wliicli
no help was to be expected from the courts, and,
therefore, hostilities were not to be begun until after
an unsuccessful ap])eal to the courts. It was the
beginning of compulsory arl)itration. Not until two
hundred and sixty 3'ears later, however, in 1495,
was the celebrated decree of Eternal Pacification —
ewige Landfriedcn — issued by Emperor Maximilian
the First, in which for the first time no difference
was made between permitted and prohibited feuds.



196 THE PEACE CONFERENCE AT THE HAGUE

Chapter V and all private use of force was for the first time
characterized as a breach of the peace of the land. It
is reported that the Emperor himself was so appalled
by the stupendous consequences of this decree that
he brooded over it in solitude for two days before
signing it. It was, moreover, a little ahead of time.
After its promulgation serious feuds continued to rend
the Empire, and even the celebrated penal code of the
Emperor Charles V., issued in 1532 — the so-called
Carolina — did not dare to draw the necessary conse-
quences of the decree of Maximilian, and in Article
129 made penal only such feuds as were begun with-
out righteous cause.

A consideration of these facts should be a sure
preventative of undue pessimism, with respect to the
further gradual development of the idea of universal
peace.

The Article under discussion specially applies the
provisions of what may be called the gentleman's
code of duelling to international relations. The
following remarks made by Mr. Holls upon intro-
ducing the proposition may serve, to a certain ex-
tent, as a commentary.

Remarks of " Permit me to explain briefly the fundamental
idea upon wdiich the proposition now submitted to
you is based. It was and is, first and foremost, the
undeniable fact, that there are and always will be
differences between nations and between govern-
ments which neither arbitration nor mediation,
according to the usual acceptance of the term, are
calculated to prevent. Nevertheless, it would be



Mr. Holls.



THE ARBITRATION TREATY 197

wrong to say that every such controversy must Chapter v
necessarily end in hostiHties,'and aUhough in a case
where neither arbitration or mediation seem to be
possible remedies, the chances of avoiding a conflict
may be characterized as minimal, it is none the less
true that in the interests of peace and in the light of
experience the attempt should be made, especially if
the means proposed are of a nature to be useful even
in case peace should after all be broken. I beg most
respectfully to observe that the project which is sub-
mitted to you affords this means.

'' It is an oljvious truth which has found expression Advantages
in private life by the institution of seconds or wit-
nesses, hi affairs of honor between gentlemen, that
at the eve of what may be a fatal encounter, it is best
to leave the discussion of the points in controversy to
third parties rather than to the j)rincipals themselves.
The second enjoys the entu^e confidence of his friend,
whose interests he agrees to do his best in defending,
until the entire affair may be settled ; yet neverthe-
less, not being directly interested in the controversy,
he preserves at all times the liberty of a mutual
friend, or even of an arbitrator, but without the
slightest responsibility.

" In the second place, I would respectfully submit
that every institution or custom which may receive
the approval of the Peace Conference, having for its a now eie-
object the introduction of a new element of delibera-deHberation.
tion into the relations between States when the latter
have become strained, certainly marks so much prog-
ress, and may conceivably be of vital importance at a



198 THE PEACE CONFERENCE AT THE HAGUE



Chapter V

Remarks of
xMr. Holls.



critical moment. As a matter of fact, and even with
the new guarantees for peace which may be offered by
the international conrt and the most solemn and for-
mal declarations in favor of mediation and good offices,
the negotiations between two States in controversy
may arrive at a point when it becomes necessary for
the representative of the one to say to the repre-
sentative of the other, ' One more step means war.'
If the proposition which is hereby submitted to you
should be adopted, it will be possible to substitute
for this formula another, ' One step further and we
shall be obliged to appoint a second.' These words
surely will have a grave significance, and yet it
would seem that they will have, beside other advan-
tages, that of producing all the good effects of a
threat of war without havino- the atrgressive character
of a menace, pure and simple, or of an ultimatum.
The amour j)ropre of the two parties will remain
inviolate, and yet all will have been said which nnist
be said.

^' To scive to this idea all of its force it is neces-
sary that the cpiestion in controversy should be
powers exciu- referred during a ffiven time exclusively to the

sively. . .

jurisdiction of the mediating Powers. At the same
time the w^ord ' exclusively ' need not necessarily be
taken in the literal sense. The mediating Powers
will represent third parties, and this clause will have
for its principal effect the cessation of all direct com-
munication between the interested parties on the
subject of the question in dispute. Further diplo-
matic relations continue undisturbed, with this one



Question
referred to
mediating



rilE ARBITRATIoy TREATY 199

restriction. The mediating Powers will remain free, chapter v
of com\se, to enter into negotiations on the suljject
of the controversy with other Powers if they shall
judge it to be useful, and it niay often result in
simple mediation, possibly ultimately in arbitration.

" Finally, and I hope this point is by no means tlie au aseiu-y for
least important, it is recommended on account of its time of war.
utility as an agency for })eace even in time of war.
It is not necessary to enlarge upon this idea. It is
admitted that there are many circumstances where
the intervention of mediatory Powers with recog-
nized authority would suffice to convince one of the
belligerent States, if not l3oth, that satisfaction has
been obtained, and thus to save many lives and
many sufferings.

" In submitting this proposition I felicitate myself
upon the fact that it has the privilege of being sub-
mitted to the examination of the most eminent
of diplomats and statesmen, and of savants whose
reputation is world-wide. I have the conviction tliat
if you will give to the idea your sanction, even with
some modifications, it will surely result, sooner or
later, in a real gain for the cause of peace."

The discussion which followed these introductory Discussion,
remarks was most interesting, but has unfortunately
not been reported. The great advantage of this form
of mediation was pointed out in carefully safeguard-
ing the honor of the most sensitive nation. "Without
the mandate conferred upon the mediating Powers
under this Article, not even the most friendly neutral
Powder could venture to suggest to a defeated yet high-



200 THE PEACE CONFERENCE AT THE HAGUE

Chapter V spirited belligerent, the uselessness of a protraction
of the war beyond the first really decisive battle.
There would be, in such a show of friendliness, an
element of spontaneous pity or compassion which
would surely be resented, and which is wholly absent
from the accepted duty of a second.
The interval On behalf of tlic military experts of several of the
au agency for Great Powcrs it w^as stated that the Article has one
peace. feature which would prove an agency for peace per-

haps more effective than any other, and which was



Online LibraryFrederick William HollsThe peace conference at The Hague, and its bearings on international law and policy → online text (page 14 of 39)