Frederick William Holls.

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

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the least objectionable of all, from the military and
naval point of view. This is the interval of thirty
days which is provided for in the absence of a differ-
ent stipulation, and which affords sufhcient time to
bring home directly to the peoples concerned the
stupendous consequences of the impending conflict
while it is yet time to retire with honor.

Upon the motion of M. d' Ornellas Vasconcellos of
Portugal it was expressly recognized by the Confer-
ence that the provisions of Article 7 were applicable
to the institution of special mediation.

While it is not supposed that the appointment of
seconds would necessarily be followed immediately by
the mobilization of all the national forces, it would
nevertheless bring such a mobilization within the
limits of probaljility. The political, financial, and
economic effect of a war could well be discussed
without the strain which the existence of an actual
state of war must necessarily exercise. The result
would naturally be a searching of hearts which ought,
but seldom does, precede a momentous national deci-



THE ARIilTRATION TREATY 201

sion. If this decision should finally be for war, the chapter v
element of deliberation would do no harm, for any
loss by delay would be more than made up by the
moral strength which any people must gain in their
own eyes, as well as in those of tlie world, by the
consciousness of acting, not from a sudden imi)ulse,
but from what would be equivalent to a deliberate
sense of duty.

The diplomatic modus operandi under this Article Method of
will probably vary according to the circumstances
of each particular case. Very often the mediating
Powers may find it possible to act through their
respective representatives accredited to one of the
litigating States; in serious cases, however, it may be
assumed that special representatives will be appointed,
and that they will meet in a neutral place. Sc^ircely
any duty can devolve upon the Chief Executive or any
Minister of Foreig-n Affairs more delicate or more
momentous than that of acting, under this Article,
on behalf of a friendly State, in what must neces-
sarily be a critical and perilous situation. Special
plenipotentiaries, of recognized standing and experi-
ence, would seem to be the natural agents for such a
purpose, at least where the direct action of the Chief
Executives or Foreign Ministers is for any reason
impracticable.

The residts of the negotiations between the medi-
ating Powers should be embodied in a protocol or an
identical note addressed to both litigants, and, in a
proper case, communicated to other Powers. It is
to be hoped that, as a general rule, all diplomatic



202 Tin-: PEACE CONFEUEXCE AT Till-: IIACIUE

•Chapter V Correspondence or action under this Article will be
coniminiicated by the interested parties to the Inter-
national Bureau at The Hague, in the manner
provided by Article 22, for the case of special Arbi-
tration Tribiuials, to become part of the general
archives of International Law which should eventually
b6 gathered there.

Attention was called b}^ Chevalier Descamps to
the fact that existing treaties might have effects,
which it was not possible accurately to forecast, upon
the choice of seconds by some of the European
States. He instanced the case of Belgium in its
relations with the Powers guaranteeing its neutral-
ity, under the provisions of the treaty of April 15,
1839.

The practical Upou the practical value of Article 8, experience

value of the -i • .i i-rj. 'i j.rpi

article. aloiie Can give a truly satisfactory judgment. I he

introduction or recognition of something akin to the
duelling code has been criticised as an unnecessary
concession to the so-called " military spirit." It must
however be remembered that this very concession
operates as a restraint. Appealing, as it perhaps
does, to prejudices and habits of thought of the
military class, this Article reaches the very persons
who are apt to be impervious to other restraining
influences, and who have hitherto not infrequently
turned the scale in favor of war.

The best guarantee of future usefulness, however
modest in its scope, is to be found in the fact that it
w^as unanimously adopted by so careful, conservative,
able, and eminent a body of men as the Peace Con-



THE A RBI THAT I ON TIIEATY 203

ference. With this initiatcjry endorsement the Article Chapter v
may confidently await the judgment of the future.

TITLE III. ON INTERNATIONAL COMMISSIONS OF
INQUIRY

Article 9. In differences of an international na-
ture involving neither honor nor vital interests, and
arising from a difference- of opinion on matters of
fact, the Signatory Powers recommend that parties
who have not l^een ahle to come to an agreement by
diplomatic methods, should, as far as circumstances
allow, institute an International Commission of In-
quiry to facilitate a solution of the differences by
elucidating the facts, by means of an impartial and
conscientious investigation.

The institution of International Commissions of ^^^"^*j^^°/"°°*
Inquiry is, strictly speaking, by no means an innova-
tion. Numerous instances of more or less impor-
tance, especially on questions of fact regarding
occurrences upon or near boundary lines, have
frequently been investigated by a commission com-
posed wholly or partly of neutrals. The true
line of a boundary has often been fixed by neu-
tral surveyors, and in one recent case, beyond no
doubt the most notable of all, a commission was
appointed by a Power nominally neutral, viz., the
United States of America, to report upon the true
boundary between Venezuela and British Guiana,
preparatory to a declaration guaranteeing the boun-
dary so found to Venezuela. Experience has no
doubt shown that an international commission,



L'Ul THE PEACE CONFERENCE AT THE HAGUE

Chapter V selected by the parties to a controversy, is the most
elHcacious method which has thus far been found, to
settle a question of fact, which otherwise might, by
uncertainty or misconstruction, easily become the
germ of a dangerous conflict. It is unnecessary to
enlarge upon the dangers to peace arising in many
cases merely from uncertainty or positive misinforma-
tion regarding questions of actual fact. The half-
forgotten Schnabele affair, regarding an alleged
occurrence upon the Franco-German frontier, will
serve as a special example. The growing reckless-
ness of tlie sensational press in every civilized
country, and the paralysis which seems to have over-
come their Governments, so far as attempts to effec-
tively check this evil are concerned, make the
necessity for an impartial and efficient method of
inquiry more urgent than ever. At the same time,
no subject before the Conference w^as involved in
greater difficulties, or bore within it greater dangers.
Difficulties It will readily be seen that it would be compara-

in the way. tivcly casy in any case to consider the proposition for
the appointment of a Commission of Inquiry as an
implied reflection upon the character or sufficiency
of some national institution or governmental agency,
with the result of creating as much or more imbit-
terment of national feeling than the very errors of
fact which it was sought to correct. Moreover, this
danger would very likely be greatest where the ne-
cessity for the commission might be most urgent,
especially in States having a comparatively brief
legal and administrative experience, or such as



THE ARBITRATION TREATY 205

Labor under the disadvantages of conflicting racial Chapter v
and religious interests among their population. That
the idea should nevertheless have been adopted unan-
imously with all the rest of the Convention, consti-
tutes one of the most surprising and encouraging
advances made l)y the Conference, the credit for
which is due not only to the intrinsic merits of the
proposition, but also to the extreme diplomatic skill
with which the negotiations and deliberations preced-
ing its adoption w^ere conducted. Nothing would
have been easier than to have frightened all, or Difficulty of
nearly all, of the minor Powers represented, into an'adopt/on.
attitude of uncompromising hostility, by merely em-
phasizing the fact, which could not be denied, but
which without special emphasis was made less objec-
tionable, namely : that the institution of commissions
of inquiry is quite likely to l)e of far greater practical
importance, at least in the near future, than any other
result of the Conference. The efforts of the friends of
the proposition in this direction were almost neutral-
ized by the well-intended but ill-advised proceedings
of some private ''friends of peace" on the outside of
the Conference. In an extremely able account of
the Conference,^ the following language is used: "It
was the fashion at the Conference to belittle the
significance of the international Commissions d'
Enqrtete. It was expressly set forth that these com-
missions shall have nothing of an arbitral character,
but one chief object, which wdll be sedulously set

^ By Mr. William T. Stead in the London Review of Reviews,
Aug. 15, 1899.



1>0() THE I'EACE CONFERENCE AT THE HAGUE

Chapter V befoFG tliG people, will be to counsel the importance of
the international Commissions cTEnquete and to give
them as much as possible of an arbitral character."

It must surely now he understood, both by the
w^riter and by the many excellent people whom he
undoubtedly represented, that by no other method
than by refraining from unduly emphasizing the
significance of the commissions of incpiiry could the
idea ever have been adopted, and while it is per-
fectly proper for private individuals and associations
to influence the public opinion of the world in such
a manner as to invest them with as much dignity,
arbitral character, or any other desirable attribute,
as possible, it was quite another matter to propose
having this done by the representatives of the Powers
establishing the institution. Whatever may be said
of the friends of the proposition in the Conference,
they are certainly not open to the reproach of not
having been fully aware all the time of the tremen-
dous possibilities for good involved ; nor should tliey
be criticised severely for the insertion of the words,
" affecting neither honor nor vital interests."

The object of The objcct of the title, and its bearing upon the gen-
eral work of the Conference was set forth by its author,
M. de Martens of Russia, in a speech of great clearness
and eloquence, in the course of which he said : —

Speech of M. " The objcct of comuiissions of inquiry is the same
as that of arbitration, good offices, and mediation,
namely : to point out all the means of appeasing
conflicts arising among nations, and to prevent war.
This is the only object, and there is no other. The



the title.



de Martens.



THE ARBITRATION TREATY 207

commissions provide the means for this by an impar- Chapter v
tial examination of the circumstances and of the
facts. It is not necessary to cite cases in Avhich
these commissions of inquiry can render great service
to the peace of the world, but let us take one case.
Suppose the authorities on a frontier arrest some-
body on foreign . territory. A most serious conflict
can arise from this — the more obscure the circum-
stances are, the more objections are raised. News-
paper articles, interpellations in Parliament, may
force the hands of the Governments and involve them
in conduct even opposed to their intentions. One
can compare the commissions of inquiry to a safety
valve given to the Governments. They are allowed
to say to the very excited and ill-informed public
opinion, ' Wait, — we will organize a commission
Avhich shall go to the spot, which shall furnish all
the necessary information — in a word, it shall shed
light.' In that way time is gained, and in the life
of peoples a day gained may save the future of a
nation. The object of the commissions of inquiry is
therefore clear. They are an instrument of pacifica-
tion. A misunderstanding seems to exist in regard
to their operation, but one should not forget that
the litigating Powers are always free to accept them
or refuse their services.

" Gentlemen, I fully share the opinion that the
floor of a diplomatic conference is not a tribune from
which one can afford to make great speeches. Our
Conference has been called an International Parlia-
ment, — yet whatever be tlie name given to the



208 nil': PEACE CONFERENCE AT THE HAGUE

Chapter V Conference, all the delegates know that this High
Speech of M. Assembly is not concerned with the politics of the
day, nor with the international treaties which regu-
late the actual relations among States.

"We have in common the object of giving a more
solid basis to peace, to concord, and to friendship
among nations. Such is, gentlemen, the object in-
dicated by my August Sovereign, and accepted by
you all. It is certain that, especially at the begin-
ning of our work in this Conference, the diversity
of opinions and ideas was great among us, but as we
entered into our common labors we have come to
know one another better, to understand one another,
and to have greater mutual esteem, and the growing
conviction that we are working not for a political,
— but for a humanitarian purpose, not for the past
nor for the present, but for the future. This is why
the relations among us members of this Conference
have become day by day more hearty, the hand-
shakes more warm ; the feeling of following a com-
mon path together has filled all of ns with the desire
to succeed in presenting to our Governments a good,
great, and noble work, from which all questions of
sovereignty and politics should be formally excluded.
" Gentlemen, if in private life that man is happy
who takes the bright view of things, in international
life that man is great who takes the brightest view.
We must elevate our ideas to broaden our hori-
zon. We must do all we can to understand one
another, for with nuitual understanding comes nni-
tual esteem. Consider for a moment the exam})le



THE AUDIT RATI OX TREATY 209

offered us by this small and charming country in Chapter v
which \ve are abidintif. Why has little Holland Tiie example
played such a great part m history r Why have her
commerce and her ships spread over all the oceans ?
It is because the Dutch have not remained behind
their dunes ; they have stood upon them and
breathed in the air of the sea. They saw before
them a vast horizon, and they followed the paths
spread before them and wdiich have put them into
direct communication with all the nations of the uni-
verse. It is the expansion of that cosmopolitan spirit
which at all times has distinguished the statesmen,
tlie artists, and the writers of this little country. But,
gentlemen, Holland has done far more in her fight
ao-ainst the invasion of the sea ; she has constructed
locks l)y means of which her land waters and those
of the sea mingle and unite, just as the ideas, insti-
tutions, and customs of the Dutch nation, thanks to
its international relations, have been developed, made
clear and, so to speak, have crystallized.

" Could it not be said, to continue the simile, that
in view of the common horizon of humanity national
ideas broaden and become harmonized. To reach the
results attained by Holland, let us follow that coun-
try's example : rise above our dunes and look upon a
broader horizon. The Imrriers of prejudice must fall,
and then shall we see all questions enlightened by
a spirit of understanding and of nuitual confidence.^

1 M. cle Martens' reference to Holland, and iiis exhortation to
follow the example of that country was, at the moment, misunder-
stood by the very able and energetic Delegate from Roumania,
p



" Honor and
vital iuter-



210 'J HE PEACE COyFEllEXCE AT THE HAGUE

Chapter V Perfect accord, gentlemen, should be the motto and
the object of our labors."

The Roumanian delegation made itself the voice

®^*^-" of tliose Powers which desired the insertion of the

qualif3'ing phrase, " affecting neither honor nor vital
interests," but it was not done with a hostile spirit,
and it may be most emphatically stated that Rouma-
nia was by no means alone in her opposition. Greece
and Servia were the only other States which openly
supported the Roumanian proposition to strike out
the entire title, but it was generally understood that
the demand for the qualification above referred to
would, if necessary, be seconded by other Powers.
Under these circumstances the vituperation which
was heaped upon the learned, able, and conscientious
representatives from the progressive and enlightened
kingdom on the lower Danube, was cruelly unjust.
There are many points involving both honor and
vital interests, especially of a weak Government,
where the refusal to permit an International Com-
mission of Inquiry to investigate the facts would by

M. Beldiman, who said that Rouraania would surely be happy to
contemplate, in her history, centuries of civilization, of struggles, and
of progress, but that, unhappily, his country had been called only
about thirty years ago to live a modern life. Being in such a con-
dition of inferiority, he would have preferred if no such example
had been invoked. The chairman, M. Bourgeois, immediately de-
clared that he would himself have taken occasion to repel the com-
parison if lie had understood it to have been made in the spirit taken
by ^I. Beldiman. He was sure, however, that, ^I. de Martens was
not referring specially to Roumania, but that he had appealed to all
members of the Conference to rise above tlie frontiers of their own
countries, and to consider only the boundaries of humanity.



THE All III THAT I OX Tit IJ A TV 211

no means imply that the facts tliemsolves could not Chapter v
bear the light.

In all discussions of questions touching the sov-
ereignty, honor, and essential interests of an indepen-
dent State, too much stress cannot be laid upon the
memorable dictum of Cesare Balbo, that " unimpaired
sovereignty is to a Nation what her character is to a
woman." A Government which wdslies the respect
of others, and hence, first of all, must have its own,
must be free in all proper cases to take up an attitude
of dignified reserve. It must necessarily itself be
the judge of the questions of propriety involved.
The phrase, "national honor or vital interests,"
was intentionally made broad and general, and the
Conference was well aware that in so doing, not only
a proper degree of reserve, but also possibly a great
amount of guilty concealment, was being made jdos-
sible, and provided with diplomatic safeguards. At
the same time, it will be admitted that the Convention
for the Peaceable Adjustment of International Differ-
ences is infinitely stronger for the inclusion of this
title, even with its limitations, and this alone amply
justifies their inclusion, for without them the adoption
of the whole idea would have been out of the question.
The general importance of the title is correctly stated
in the article above referred to, from which more may
be quoted: —

" What we shall say, and say with reason, is that importance
the international Commissions cV Enqaetc give the S',[„^,'i'[],"^,'^^
Governments of the world an opportunity of having
an investigation of the facts in dispute, w^ithout the



'2V2 THE PEACE CONFERENCE AT THE HAGUE

Chapter V compiilsioH of undertaking to accept the result arrived
Importance of at bv tlie coniniission of inquiry (see Article 14). For
instuutiou. practical purposes I expect that we shall use the
international Commissions cV Enquete nine times for
once that we shall use the permanent court of arbi-
tration in any questions of serious importance. The
difficulty of securing an impartial investigation of
the dispute is, that when it is most needed, the dis-
putants are in the w^orst possible mood to assent to
it. They are distrustful, angry, and inclined to be-
lieve the worst of everybody and everything ; to ask
disputants in such a temper to agree to refer their
dispute to an international court of investigation is
to secure an almost certain refusal if you ask them
at the same time to bind themselves to accept what-
ever the court or commission may decide.

" ' Always arbitrate before you fight,' was a for-
mula which did good service in the peace crusade in
England, but in order to avoid confusion of terms
it is better to say, ' Always investigate before you
fight,' and the great advantage of international
Commissions cC Enquete is that they open the door to
a full, impartial, conscientious investigation as to the
facts in dispute, without exacting as a preliminary
a promise to abide by the judgment embodied in the
report of the investigators. We shall do well, there-
fore, to magnify to the utmost the functions of the
international Commissions cV Enquete, to declare on
every occasion that they are virtually international
courts of arbitration whose verdicts are not binding
upon either litigant."



THE A RBI THAT/ OX THE AT Y 2\•.^

With reference to a possible refusal to submit to chapter v
an investigation upon the ground that national honor Refusal to
or vital interests are involved, the writer says with^,"^'"j|ig°
some force that without the justifiable cause, to*^'^"-
which reference has been made above, '*' the plea of
honor will be regarded as the last refuge of the dis-
honorable. There is no one who talks so loudly of
honor as the man who plays with marked cards, and
the sharper who is cliallenged to produce his pack
before a Commission cVEnquete is certain to plead
that his honor is too much at stake to permit him to
do so, but all his opponents know perfectly well how
to interpret such a plea. It would be merely an
euphemious formula for admitting that he was a
rogue. So, any nation which uses the plea of honor
to avoid a conscientious and impartial examination
into facts by an international Commission cV Enquete
will come to be reg;arded as a nation wdiose honor
cannot bear the light of day, and whose practices
are such that they must be impenetrable to the
searchlight of the Commission d' Enquete. In like
manner, the phrase as to 'essential interests' can
similarly be turned against the advocates of dark-
ness, for how can it be alleged that essential interests
can be endangered by inquiry, without admitting that
it is essential to the essential interests which you defend
that the truth should not come to light. Every one
knows what a jury thinks in a court of law when a
witness is compelled to admit that he has suppressed
the essential evidence, and if he were further to
admit that lie had suppressed essential evidence be-



Rniiiii:iiii;i
Servia
G reece



•Jll Till-: PEACE CONFERENCE AT THE HAGUE

Chapi.T V Ccause it was contrary to liis essential interests, the
verdict of that jury would be a foregone conclusion."^
Objections of In the conrse of the debate on this article M. Bel-
servia, anil diuiau ('oui|)lained that the proposition for Inter-
national Commissions of Incpiiry had never been
submitted to a general discnssion. A private com-
mittee had been directly charged with its prepara-
tion, and even the chiefs of the varions delegations
had had no means of participating in the debates or
communicating with their Governments. Moreover,
he considered it remarkable that in the different
phases of the preparation of the report the representa-
tives of the press seemed to have enjoyed a veritable
privilege in the matter of private information.

1 While these pages are passing through the press, the situation in
the Chinese Empire affords the most strilving example possible, not
merely of the class of questions which heretofore have almost invari-
ably led to war, and which under this Convention most certainly can
and should be settled by peaceful methods, but more particularly of
the necessity of a preliminary impartial investigation of the facts by
an international Commission of Inquiry, It is only after a judicial,
careful, and thorough inquiry into all the facts Avhich led \\\) to the
hostilities during the summer of 1901), that the civilized Powers will
be in a position to do justice to China and to adjust among them-
selves the minor questions of interest arising from their different
duties and responsibilities. It is, indeed, an ideal occasion for the
work of a Commission of Inquiry, which, if rightly constituted and
conducted, may easily avert great perils and accomplish results of
far-reaching importance. Under this treaty, the consent of a respon-



Online LibraryFrederick William HollsThe peace conference at The Hague, and its bearings on international law and policy → online text (page 15 of 39)