Frederick William Holls.

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

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sible Chinese Government would be requisite, but this consent might
justifiably be compelled under the exceptional circumstances of the
case. Where a just cause for war evidently and unquestionably
exists, the right to make the readiness to agree to an impartial
investigation a condition of peace cannot be doubted, and such com-
pulsion would violate neither the letter nor the spirit of the present
treaty.



THE ARBITRATION TREATY 215

M. Bourgeois at the end of the first reading an- Chapter v
nounced that before the second reading the Comite
d'Examen woidd consider the amendments offered on
this day, together with other proposals, and added :
" All of the objections wliich have inspired the dele-
gates of Roumania, Servia, and Greece have re-
peatedly occurred to most of the members of the
Committee. If they had believed that the proposi-
tions which were adopted contained anything what-
ever in impairment of the sovereignty or the dignity
of any Power, great or small, they would not have
received the vote of a single member. It does not
seem to me that there can be any true oljjection on
the merits, but it is possible that the form may
w^ell be capable of improvement. AVe are ready to
make ever}^ effort to agree with our distinguished
colleagues, appealing to the sentiment wliich has
often animated us in the course of our deliberations,
namely : the wish for unanimity in our decisions. I
say to M. Beldiman and to the delegates of Servia
and Greece, come to the Comite cV Examen, and
together we shall endeavor to weigh in the balance
the objections which have been raised against the
proposition. We shall endeavor to give you every
satisfaction, and, in consequence of this interchange
of opposing views, we shall be able to say that
we have done everything possible for the sake of
obtaining unanimity."

Article 10. International Commissions of Inquiry Agreement
shall be constituted l)y a special agreement between sioiK*^^'"""'



21G THE PEACE CONFERENCE AT THE HAGUE

Chapter V tliG parties to the controversy. The agreement for
the inquiry shall specify the facts to be examined,
and the extent of the powers of the Commissioners.
It shall fix the procedure. Upon the inquiry both
sides shall be heard. The procedure to be observed,
if not provided for in the convention of inquiry, shall
be fixed by the Commission.



Treaty-
making
power.



This Article was adopted on the proposition of M.
Eyschen, First Delegate from Luxemburg, and it is
based on the experience of similar commissions hereto-
fore. The provision that merely a special agreement
shall be necessary to constitute the Commission of
Inquiry w^as inserted upon the motion of Count Nigra,
who called attention to the embarrassment which
might occur under present diplomatic usage, if com-
missions, which w^ere to proceed according to regular
procedure, and whose reports might therefore become
precedents, were appointed sometimes by an act of a
sovereign treaty-making power, and then again
merely by an informal agreement bet^veen diplomatic
representatives. In view of the fact that the report
of the Commission, according to Article 14, is not to
have any binding force, it was not the opinion of the
Committee that a convention for a Commission of
Inquiry must in all cases be a formal treaty.

This point is of essential importance in the United.
States of America on account of the power of the
Senate. The appointment of a Commission of Inquiry,
having no further necessary consequences than the
providing for each party's share of necessary expenses,
would seem to be within the ordinary diplomatic func-



THE ARBITRATION TREATY 217

tions of the President and the Department of State by Chapter v
memorandum or protocol, whereas an agreement to
submit any question to a court of arbitration, the deci
sion to be binding upon the parties, must necessarily
take the form of a treaty requiring the constitutional
cooperation of the Senate. The provisions for a reg-
ular procedure, for the hearing of both sides with the
necessary implication of communicating to each side
everything brought forth by the other, and giving a
reasonable opportunity of contradiction, is based, as
was shown by M. Eyschen, upon practical experience.
Commissions proceeding without these safeguards
are apt to confide different phases of the question
before them to different members. In the expressive
language of one of the members of the Committee,
they are quite as likely to be influenced by the opin-
ions of their neighbors at a tahle dliote as by state-
ments made to them wdiile nominally in the exercise
of their duty. The requirement fixing a stated
order of business will no doubt greatly contribute to
their general efficiency.

Article 11. The International Commissions of Method of
Inquiry shall be formed, unless otherwise stipu- ^pi'^^"^'"'^"*-
lated, in the manner fixed by Article 32 of the
present convention.

Under Article 32 each party appoints two mem-
bers, and the four are to select the flftli. The
American representative, in the course of the discus-
sion in the Comite cT Examen, called attention to
the fact that the reasons for this method which are



218 Tin-: PEACE CONFERENCE AT THE HAGUE

Chapter V givGii ill tliG casG of arbitration under Article 32 do
not necessarily apply to comniissions of inquiry. It
is more important, in this latter case, to have a
majority of the commission consist of persons not
nominated !)}• either party, inasmuch as the facts
ma}^ easily be different from the contention of either
side. If the commission were constituted according
to Article 3!2, each State would have two members,
and tliere would be only one neutral, who would
generally have to agree entirely with either side in
order to make any report possible, whereas, if a
majority of the commission consisted of neutrals,
the report, though perhaps not wholly satisfactory
to either party, would have a greatly increased
moral authority. The Committee contented itself
with spreading this observation upon the minutes,
leaving it free, however, to the parties to stipulate
according to the exigencies of each particular case.

Facilities to ARTICLE 12. The Powcrs in dispute agree to
be supplied, supply the International Commission of Inquiry, as
fully as they may consider it possible, with all means
and facilities necessary to enable it to arrive at a
complete acquaintance and correct understanding of
the facts in question.

An important limitation of this Article is con-
tained in the words, " as fully as they may consider
it possible" — the danger being that an ill-advised
or secretly hostile commission might demand infor-
mation directly compromising the security of the
State.



THE A Rill Til AT ION TREATY 219

Article 13. The International Commission of 1 n- chapter v
quiry shall present to the parties in dispute its report Report,
signed by all the members of the commission.

This, of course, does not require unanimity in the
findings of the facts, but it does require the signature
of all members to the report stating what members,
if any, have been able to agree as to facts, and the
exact terms of their agreement. The refusal of any
one member of an international commission of in({uiry
to sign such a report, which it will be seen is really iu
the nature of a record of proceedings, would there-
fore make the entire institution nugatory, so far
as this Convention is concerned. It is not ])robable,
however, that this will ever prove to be a material
objection in ]3ractice — all the more, since an arbi-
trary refusal of a minority to sign would hardly
affect the moral authority of a report signed by a
majority.

Article 14. The report of the International Com- no binding
mission of Inquiry shall be limited to a statement oi^^^^^-
the facts, and shall in no way have the character of
an arbitral award. It leaves the Powers in contro-
versy freedom as to the effect to be given to such
statement.

Whatever essential effect and authority a report of
the commission of inquiry may have, must accrue
to it through its intrinsic merit, and not from any
authority, direct or implied, based upon the pro-
visions of this Convention.

As was shown from the quotations made above.



220 THE PEACE CONFERENCE AT THE HAGUE

Chapter V tliis rcature is the very strength of the title. It
may frequently secure recourse to this institution in
circumstances where the state of the public mind
makes arbitration or even mediation impossible, and
one great object, the gaining of time, will certainly
be attained. Experience has shown that national
outbursts of passion cool down almost as rapidly as
the}^ arise — the difficulty being only to find some
obviously reasonable occasion for delay. This occa-
sion is certainly afforded by this title, the practical
working of which will surely be awaited with great
interest.

TITLE IV. INTERNATIONAL ARBITRATION

Chcq^ter I. On Arhltral Justice

Object of Article 15. International arl)itration has for

its object the determination of controversies between
States, by judges of their own choice, upon the basis
of respect for law.

International arbitral justice does not attempt to
supplant direct negotiations, — it is concerned with
controversies which cannot be settled by diplomatic
means. Reference will be made hereafter to the fact
that the establishment of an international court of
arbitration is likely to have the effect of elevating
rather than lowering the standard of diplomacy, and
of creatintr a demand for an even his/her class of
men than has hitherto been drawn to the diplomatic
profession.

Moreover, arbitration does not interfere with



arbitration.



THE ARBITRATION TREATY 221

Mediation; on the contrary, it leaves the fiekl open chapter v
for the most effective method of Mediation, in that
it supplies an end to which, in many instances, the
efforts of mediators may well be directed.

Akticle 1G. In questions of a judicial character, daracter of
and especially in ([uesticms regarding the interpreta- recognized as
tion or application of international treaties or con- «>"».ai)ie for
ventions, arbitration is recognized by the Signatory '^^'
Powers as the most efficacious and at the same
time the most equita])le method of deciding contro-
versies which have not been settled ))y diplomatic
methods.

With reference to this Article the delegation of
Roumania made the following declaration : —

'■' The Royal Government of Ronmania, while en-
tirely acquiescing in the principle of voluntary arbi-
tration, of which it appreciates the high importance
in international relations, is nevertheless not ready
to make an engagement, by virtue of Article 16, to
accept arbitration in all the cases wdiich are therein
mentioned, and it believes it to be its duty to formu-
late these express reservations in this respect. It
cannot, therefore, vote for this Article except with
this reservation." ^

This Article is of special importance, in that it
emphasizes the particular questions which are above

^ No reason was ever given for this and similar declarations made
by Ronmania and other Balkan countries. A certain exaggerated
racial and national sensitiveness is perhaps not unnatural in the states
of this storm centre of Europe, where exceptions to the rules formu-
lated in the present treaty may in all probability lirst become neces-
sary.



222 THE PEACE CONFERENCE AT THE II A CUE

Chapter V all otliei's regarded as suitable for arbitration. They
are judicial questions, and such as arise from the in-
terpretation or application of existing treaties. A
determination by judges can, properly speaking, only
be had regarding a judicial question, or a question
arising iq^on a particular document. Conflicts of
interest and political differences are not, strictly
speaking, proper subjects for arbitration in the re-
stricted sense of the term. The distinction here
made between the two kinds of arbitration, first,
judicial, second, general, is by no means unimpor-
tant, and a clisreu-ard of this difference has fre-
quently led to disappointment, as well as to the
casting of a certain amount of discredit upon the
entire principle involved.

In his final argument before the Arbitration Tribu-
nal upon the Venezuelan boundary question, ex-Presi-
dent Harrison of the United States, emphasizing this
point, uses this language (p. 2982) : —
Reniarksof " Mr. PRESIDENT: It has bccu to me a matter of
HarriToltn"' spGclal interest that the President of this tribunal,
Paris. after his designation by these two contending nations

for that high place which assigned to him the duty
of participating in practical arbitration between
nations, was called by his great Sovereign to take
part in a Convention which I believe will be counted
to be one of the greatest assemblies of the nations
that the world has yet seen, not only in the personnel
of those who are gathered together, but in the wide
and widening effect which its resolutions are to have
upon the intercourse between nations in the centuries



THE ARBITRATION TREATY 223

to come. There was nothing, Mr. President, in your chapter v
proceedings at The Hague that so much attracted my
approbation and interest, as the proposition to con-
stitute a permanent court of arbitration. It seems to
me that if this process of settling international differ-
ences is to commend itself to the nations, it can only
hope to set up for the trial of such questions an abso-
lutelj- impartial JK/Ilcial tribunal. If conventions, if
accommodation, and if the rule of ' give and take ' are
to be used, then let the diplomatists settle the ques-
tion ; but when these have failed in their work, and the
question between two great nations is submitted for
judgment, it seems to me necessarily to imply the in-
troduction of a judicial element into the controversy."

It will readily be seen that almost everything importance of
depends upon the form of the statement of the statement of
question to be submitted. If it is stated as a *^*^ *i"''^'°''-
proposition of law, the decision must necessarily be
without reference to the interests of either or any
party. If, on the other hand, it is stated as a ques-
tion of conflicting interests — political, territorial,
commercial, or otherwise — compromise accommoda-
tion, the rule to give and take, as President Harri-
son puts it, is not only permissible but almost
indispensable. The Venezuelan Tribunal, judging
from its award, seems to have regarded the question
submitted to it as one of the latter class ; whereas
the Behring Sea Tribunal of 1889 undoubtedly
regarded its task as strictly judicial.' In both cases

1 It will be, useful to (•()ini>are the statement of the questions sub-
mitted for arbitration as stated in tlie treaties coveriu"" both these



2-2 i THE PEACE CONFERENCE AT THE HAGUE

CLapter V the decLsion seems to have followed logicallj' from
Importance the method of statino; the question, and the lesson

of the form of , .

statement of oi these two recent and very important cases is not
tie question. |-j-^^|y ^q j^g j^^g^- |^,pQi^ t,lie diploiiiatists or arbitrators

instances. With regard to the Behring Sea controversy, the hmguage
of the treaty is as follows : —

Article VT. In deciding the matters submitted to the Arbitra-
tors, it is agreed that the following five points shall be submitted to
them, in order that their award shall embrace a distinct decision upon
each of said five points, to wit : —

1. What exclusive jurisdiction in the sea now known as Behring\s
Sea, and what exclusive rights in the seal fisheries therein, did Russia
assert and exercise prior and up to the time of the cession of Alaska
to the United States?

2. How far were these claims of jurisdiction as to the seal fish-
eries recognized and conceded by Great Britain?

3. Was the body of water now known as the Behring's Sea in-
cluded in the phrase " Pacific Ocean," as used in the treaty of 1825
between Great Britain and Russia ; and what rights, if any, in the
Behring's Sea were held and exclusively exercised by Russia after
said Treaty?

4. Did not all the rights of Russia as to jurisdiction, and as to the
seal fisheries in Behring's Sea east of the water boundary, in the
Treaty between the United States and Russia of March 30, 1867,
pass unimpaired to the United States under that Treaty?

5. Has the United States any right, and if so, what right of pro-
tection or property in the fui'-seals frequenting the islands of the
United States in Behring Sea when such seals are found outside the
ordinary three-mile limit?

With reference to the boundary of Venezuela and British Guiana
the treaty of February 2, 1891, provides : —

Article 1. An arbitral tribunal shall be immediately appointed
to determine the boundary line between the Colony of British
Guiana and the United States of Venezuela; and

Article 4. In deciding all matters submitted the arbitrators
shall ascertain all facts by them deemed necessary to a decision of
the controversy, and shall be governed by the following rules, whicli
are agreed upon by the Contracting Parties as rules to be taken as
applicable to the case and by such principles of international law not
inconsistent therewith, as the arbitrators shall determine to be appli-
cable to the case.

Rules

A. Adverse holding or transcription during a period of fifty years
shall make a good title. The arbitrators may deem exclusive politi-



THE AJiBITKATWN TREATY 225

of the future. See upon the entire subject, Ileffter chapter v
(Ed. Geffken), § 109, and the full and adnurablo dis-
cussion in Calvo, Droit International, sections 1703-
180G.

Article 17. An agreement of arbitration may be Agreements
made with reference to disputes already existing or°„ge"erai."''''
those which may hereafter arise. It may relate to
every kind of controversy or solely to controversies
of a particular character.

This Article does not impose any special obligation
upon the signatory powers, but it indicates in a use-
ful manner a possible extension and further develop-
ment of this convention. An agreement to submit a
controversy already existing to arbitration is recog-
nized as the ordinary method of procedure. An
agreement to submit future controversies to arbitra-
tion now exists in an obligatory form for all the
members of the International Postal Union so far as
postal questions are concerned, and several treaties
having this particular object have been concluded
between various Powers, notably the treaty between
Holland and Portugal of July 5, 1894, and the

oal control of the district, as well as actual settlement thereof, sufR-
cient to constitute adverse holding or to take title by transcription.

B. The arbitrators may recognize and give effect to rights and
claims arising on any other ground whatever, valid according to
international law and of any principles of international law which
the arbitrators may deem to be a]iplicable to the case and which are
not in contravention of the foregoing rules.

C. In determining the boundary line of territory of one party
found by the arbitrators to have been at the date of this treaty in
the occupation of the subjects or citizens of the other Jiarty such effect
shall be given to such occupation as reason, justice, the principles of
international law and the equities of the case shall in the opinion of
the tribunal recpiire.



L'lH; the peace conference at TirE HAGUE

Chapter V treaty of arbitration between Italy and the Argen-
tine Republic of July 23, 1898. Among the projects
for similar treaties the most notal)le are the propo-
sition for such a treaty between Switzerland and the
United States, dated July 24, 1893, the arljitration
treaty elaborated by the Pan-American Conference,
October 2, 1889, and the proposed Treaty between
Great Britain and the United States, dated November
12, 189G.

The Roumanian Government made the following
declaration with reference to this Article : " The
Royal Government of Roumania declares that it
cannot adhere to Article 17 except upon the express
reservation entered upon the minutes, that it has
decided not to accept, in any case, international arbi-
tration for controversies or differences anterior to
the conclusion of the present Convention."

Obligation to ARTICLE 18. The agreement of arbitration implies
submit to ^YiQ obligation to submit in good faith to the decision
of the arbitral tribunal.

Without this implied agreement arbitration would
rapidly sink into a purely academic institution, and
the force of intelligent and civilized public opinion is
relied upon as a sufficient sanction to enforce this as
well as other obligations imposed by this Convention.

Furtiier ARTICLE 19. Independently of existing general

or special treaties imposing the obligation to have
recourse to arbitration on the part of any of the
Signatory Powers, these Powers reserve to them-
selves the right to conclude, either before the rati-



agreemeiits
to be made.



THE ARBITRATION TREATY 227

fication of the present Convention, or subsequent to Chapter v
that date, new agreements, general or special, with a
view of extending the obligation to submit contro-
versies to arbitration to all cases which they consider
suitable for such submission.

Obligatory Arbitration

In the original Russian proposal regarding Inter-
national Arbitration, Article 10 read as follows: —

" From and after the ratification of the present
treaty by all the Signatory Powers, arbitration shall
be obligatory in the following cases, so far as they
do not affect vital interests or the national honor of
the contracting States : —

" I. In the case of differences or conflicts reo;ard-
ing pecuniary damages suffered by a State or its citi-
zens, in consequence of illegal or negligent action on
the part of any State or the citizens of the latter.

" II. In the caNC of disagreements or conliicts
regarding the interpretation or application of treaties
or Conventions upon tlie following subjects : —

" (I) Treaties concerning postal and telegraphic
service and railways, as well as those having for
their object the protection of submarine telegraphic
cables ; rules concerning the means of preventing
collisions on the high seas ; Conventions concerning
the navigation of international rivers and inter-
oceanic canals.

" (2) Conv(mtions concerning the protection of lit-
erary and artistic property, as well as industrial and
proprietary rights (patents, trade-marks, and com-
mercial names) ; Conventions regarding monetary
affairs, weights, and measures ; Conventions regard-
ing sanitary affairs and veterinary precautions and
measures against the phylloxera.



228 THE PEACE CONFERENCE AT THE HAGUE



affairs
stricken out
on motion of
the United
States.



Chapter V "('5) Coh veiitioiis regarding inheritances, extradi-

tion, and mutual judicial assistance.

" (4) Boundary Conventions or treaties, so far
as they concern purely technical, and not political,
questions."

Provisions At tlic first meeting of the Coniite cV Examen,

'inten!atiouai at whicli tliis Article was discussed, the American
reirnicranaisi^epresentative promptly moved to strike out the
and monetary sentence relating to '' Conventions regarding the
navigation of international rivers and inter-oceanic
canals," and also the words "monetary affairs" in
the next jDaragraph. The reason for both omis-
sions, though clear enough to an American, had to
be carefully explained to the Committee.

There can be no doubt that any proposition in-
volving the possible submission, to a Court almost
necessarily composed mostly of Europeans, of such
purely American questions as might arise concern-
ing the navigation of the St. Lawrence, the Rio
Grande, the Columbia, or the Yukon, could not pos-
sibl}' be accepted by any American Government or
ratified by an American Senate. The same is true,
perhaps even to a greater extent, regarding questions
concerning an Isthmian Canal uniting the Atlantic
and Pacific oceans. The experiences of the Span-
ish-American War, notably the memorable voyage
of the Orcfjon, have, without doubt, wrought a com-
plete and fundamental change in the attitude and
the diplomacy of the United States of America,
so far as such a canal is concerned. Whatever
arguments may be adduced from history or tradi-



THE ARBITRATION TREATY 229

tion in favor of limited riglits and powers, cannot Chapter v
avail in the face of the evident and almost unani-
mous determination of the American people to



Online LibraryFrederick William HollsThe peace conference at The Hague, and its bearings on international law and policy → online text (page 16 of 39)