Frederick William Holls.

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

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regard this canal, when built, as part of their own
coast line, and to insist upon complete and exclusive
American control as the best possible guarantee for
the interests, not only of the United States, but of
humanity at large.

With reference to the paragraph about conventions
regarding monetary affairs, weights, and measures,
the American representative called attention to the
fact that the very inclusion of these different subjects
under one head would give offence to an important
part of the American people, including many respon-
sible statesmen whose cordial approval w^as indis-
pensable to the ratification of the treaty. A great
political party maintained that it was fundamentally
incorrect and unjust to classify laws and treaties con-
cerning mone}', with those concerning weights and
measures, for the reason that the agency of govern-
ment in fixing the monetary standard and in giving
a legal tender quality to coin or paper, introduces an
element so peculiarly appurtenant to the sovereignty
of the State itself, as to make a radical distinction
necessary, from a political as well as a scientific ^^oint
of view. The American representative protested
against the inclusion in the treaty of any provision
which might have the deplorable result of making
the ratification of the treaty a party question in the
United States. The motion made on behalf of the
United States was, after some discussion, carried



2:50 THE PEACE CONFERENCE AT THE HAGUE

Chapter V u nail i 111 ouslj, and various verbal changes were made
in the rest of the Article as proposed by Russia.
Finally, at the meeting on July 4, Dr. Zorn, ou
behalf of the German Empire, moved to strike out
the entire Article.
The entire It was uiidcrstood that oiic of the conditions upon

stVickcii out which the German Empire had accepted tlie institu-
Germai^v""^ tlou of a Permanent Court of Arlntration was the
suppression of all provisions for compulsory arbitra-
tion, and this arrangement was unanimously and
cheerfully ratified both by the Committee and the
Conference. Tlie American representative especially,
having taken personal part in the negotiations
which were carried on in Berlin, for the purpose
of overcoming the objections of the German Em-
pire to the institution of a permanent Court of
Arbitration, maintained that the provision for com-
pulsory arbitration, especially with the limiting
phrase '' so far as vital interests and national honor
are not affected," Avas of no importance whatever,
compared with the institution of the permanent
Court by the unanimous and cordial cooperation of
all the great Powers. The refusal of any one of the
latter to consent to the establishment of the Court
would, in all probability, have been fatal to the idea,
and consequently to the success of the entire Confer-
ence. On the other hand, the provision for com-
pulsory arbitration would have no greater sanction
enforcing it than any other portion of the treaty,
and it is expressly provided in Article 19, that the
Signatory Powers reserve the right to conclude



THE ARBITRATION TREATY 231

various treaties witli a view of extending obligatory chapter v
arbitration to all cases to which they shall deem it
applicable. Under these circumstances the rejection
of this provision may well be regarded as one of the
wisest and most conservative steps taken by the
Peace Conference.



Chapter II. On the Permanent International Court
of Arbitration

No proposition before the Conference was received The most
with more sympathy and favor than the plan for the subject con-
establishment of a permanent Court of Arbitration. JoiifereiTe!^^
It formed from the first the keystone of the proposals
formulated and presented on behalf of the United
States, and almost from the moment of their arrival
at The Hague, the American representatives declared
that the realization of this idea was their chief object
at the Conference.^ The Government of Great Brit-

1 The number of official attempts, — apart from the efforts of Historical
private or religions bodies, — in the history of the United States, to ""^^ "^"^ *^®
establish a system of peaceable adjustment of differences fii'isi'ig the United
between nations is both significant and instructive. As early as states on the
February, 1832, the Senate of Massachusetts adopted, by a vote of ^"^'J'-''^*' '.'^
19 to 5, a resolution expressing the opinion that "some mode should'
be established for the amicable and final adjustment of all inter-
national disputes instead of resorting to war." A similar resolution
was unanimously passed by the House of Representatives of the same
state in 1837, and by the Senate by a vote of 35 to 5.

A little prior to 1840 there was much popular agitation regarding
the convocation of a Congress of Nations for the purpose of establisli-
ing an international tribunal. This idea was commended by resolu-
tions adopted by the Legislature of Massachusetts in 18-14, and by
the Legislature of Vermont in 1852.



232 THE PEACE COMEEnE\CE AT THE HAGUE

ciiaptor V ain shared this view most cordially, and the honor
of taking the lead in the practical effort of secur-
ing its adoption belongs to the eminent First Dele-

Histoiieal In February, 1.S51, ISIr. Foote, from tlie Committee on Foreign

note on the Relations, reported to the Senate of the United States a resolution

attitiu e e ^1^^^ ^^ ^^^ ^-^^ judgment of this body it would be proper and desirable

on the subject tor the Government of these United States whenever pi'acticable to

of arbitration, secure in its treaties with other nations a provision for referring to

the decision of nmpires all future misunderstandings that cannot be

satisfactorily adjusted by amicable negotiation in the first instance,

before a resort to hostilities shall be had."

Two years later Senator Underwood, from the same Committee,
reported a resolution of advice to the President suggesting a stipula-
tion in all treaties hereafter entered into with other nations referring
the adjustment of any misunderstanding or controversy to the deci-
sion of disinterested and impartial arbitrators to be mutually chosen.
May 31, 1872, Mr. Sumner introduced into the Senate a resolution
in which, after reviewing the historical development of municipal law
and the gradual suppression of private war, and citing the progressive
action of the Congress of Paris w'ith regard to neutrals, he proposed
the establishment of a tribunal to be clothed with such authority as
to make it a " complete substitute for war," declaring a refusal to
abide by its judgment hostile to civilization, to the end that "war
may cease to be regarded as a proper foriu of trial between nations."
In 1874 a resolution favoring general arbitration was passed by
the House of Representatives.

April 1, 1883, a confidential inquiry was addressed to IMr. Freling-
huysen, Secretary of State, by Colonel Frey, then Swiss Minister to
the United States, regarding the possibility of concluding a general
treaty of arbitration between the two countries. Mr. Frelinghuysen,
citing the general policy of this country in past years, expressed his
disposition to consider the proposition with favor. September 5, 1883,
Colonel Frey submitted a draft of a treaty, the reception of which
was acknowledged l)y ^Nlr. Frelinghuysen on the 26th of the same
month. This draft, adopted by the Swiss Federal Council, July 24,
1883, presented a short plan of arbiti'ation . These negotiations were
referred to in tlie President's Annual ^Message for 1883, but were not
concluded.

In 1888, a communication having been made to tlie President and
Congress of the United States by two hundred and thii'ty-five mem-



THE ARBITRATION TREATY 233

gate from that country. At the session of the Chapter v
full Committee on Arbitration, on May 26, Lord
Pauncefote took the floor immediately after the

bers of the British Piirliament, urging tlic coiichision of a treaty of
arbitration between the luited States and Great Britain, and rein-
forced by petitions and memorials from multitudes of individuals and
associations from Maine to California, great enthusiasm was exhibited
in its reception by eminent citizens of New York. As a result of this
movement, on June 13, 1888, ]\Ir. Sherman, from the Committee on
Foreign Relations, reported to the Senate a Joint Resolution request-
ing the President to "invite from time to time, as fit occasions may
arise, negotiations with any Government witli wliich the United State.s
has or may have diplomatic relations, to the end that the differences
or disputes arising between the two Governments which cannot be
adjusted by diplomatic agency may be referred to arbitration, and
be peaceably adjusted by such means."

November 29, 1881, Mr. Blaine, Secretary of State, invited the Gov-
ernments of the American nations to participate in a Congress to be
held in tlie City of Washington, November 24, 1882, " for the purpose
of considering and discussing the methods of preventing war between
nations of America."

For special reasons the enterprise was temporarily abandoned, but
was afterward revived and enlarged in Congress, and an Act was
passed authorizing the calling of the International American Confer-
ence, which assembled in Washington in the autumn of 1889. On
April 18, 1890, refei'ring to this plan of arbitration, Mr. Blaine
said : —

" If, in this closing hour, the Conference had but one deed to cele-
brate, we should dare call the world's attention to the deliberate, con-
fident, solemn dedication of two great continents to peace, and to the
prosperity which has peace for its foundation. We hold up this
new Magna Charta which abolishes war and substitutes arbitration
between the American Republics, as the first and great fruit of the
International American Conference."

The Senate of the United States on February 14, 1890, and the
House of Representatives on April 3, 1890, adopted a concurrent
resolution in the language reported by ]\Ir. Sherman to the Senate in
June, 1888.

July 8, 189.5, the French Chamber of Deputies unanimously re-
solved : " The Chamber invites the Government to negotiate as soon



2:M Till-: PEACE CONEERENCi: AT Till': HAGUE

rhaptci- V reading of the minutes, and made tlie following

remarks : —
Address of ''Mil. PRESIDENT: Permit me to inquire whether

Lord Paunce- before entering; in a more detailed manner upon our

fote. ^ ^

Historical ^.^ ])ossible a permanent treaty of arbitration between the French
■ tft lie of the l^'Jp'i''^lic and the Republic of the United States of America."
United States 'July 1*J. 18^>;>, the British House of Connuons adopted the following
on the subject resolution : —

ai )i i.i ion. ^. i>j.t;,,iyj.,|_ tiiat this House has learned with satisfaction that both
Houses of the United States Congress have by resolution requested
the President to invite from time to time, as fit occasions may arise,
negotiations with any Government with which the United States have
or may have diplomatic relations, to the end that any differences
or disputes arising between the two Governments which cannot be
adjusted by diplomatic agency may be referred to arbitration and
peaceably adjusted by such means; and that this House, cordially
sympathizing with the purpose in view, expi'esses the hope that Her
Majesty's Government will lend their ready cooperation to the
Government of tiie United States upon the basis of the foregoing
resolution."

December 4, 1893, President Cleveland referred to the foregoing
resolution of the British House of Connnons as follows : —

"It affords me signal pleasure to lay this parliamentary resolution
before the Congress and to express my sincere gratification that the
sentiment of two great and kindred nations is thus authoritatively
manifested in favor of the rational and peaceable settlement of inter-
national quarrels by honorable resort to arbitration."

These resolutions led to the exchange of communications regarding
the conclusion of a permanent treaty of arbitration, suspended from
the spring of 1895 to March 5, 1898, when negotiations were resumed
which resulted in the signature of a treaty, January 11, 1897, between
the United States and Great Britain.

In his Inaugural Address, IMarch 4, 1897, President IMcKinley
said : —

" Arbitration is the true method of settlement of international as
well as local or individual differences. It was recognized as the best
means of adjttstinent of differences between employers and employees
by the Forty-ninth Congress in 1886, and its application was extended
to our diplomatic relations by the unanimous concurrence of the



THE A till I TR ATI UN TREATY 235

duties it would not be useful and opportune to sound chapter v
the Committee on the subject of a question which in
my opinion is the most important of all, namely: the
establishment of a permanent international triljunal

Senate and House of the Fifty-first Congress in 1890. Tlie latter
resolution was accejited as the basis of negotiations with us by the
British House of Commons in isi):!. and upon our invitation a treaty
of arbitration between the United States and (ireat Britain was
signed at Washington and transmitted to the Senate for ratification
in January last.

"Since this treaty is clearly the result of our own initiative, since
it has been recognized as the leading feature of our foreign policy
throughout our entire national history, — the adjustment of difficulties
by judicial methods rather than force of arms, — and since it presents
to the world tlie glorious example of reason and peace, not passion
and war, controlling the relations between two of the greatest nations
of the world, an example certain to be followed by others, I respect-
fully urge the early action of the Senate thereon, not merely as a
matter of policy, but as a duty to mankind. The importance and
moral influence of the ratification of such a treaty can hardly be over-
estimated in the cause of advancing civilization. It may well engage
the best thought of the statesmen and people of every country, and I
cannot but consider it fortunate that it was reserved to the United
States to have the leadership in so grand a work."

The Senate of the United States declined to concur in the rati-
fication of the treaty of Arbitration with Great Britain, but for
reasons which do not affect a general treaty directed toward a similar
end.

The traditions of American diplomacy have been fully maintained
by Secretary John Play, who in his instructions to the American
Commission to the Peace Conference, uses this language: "'The
prevention of armed conflicts by pacific means' — to use the words
of Count ^Nlouravieffs circular of December 30 — is a proposition well
worthy of a great international convocation, and its realization, in an
age of general enlightenment, should not be impossible. The duty of
Sovereign States to promote international justice by all wise and
effective means is secondary only to the fundamental necessity of
preserving their own existence. Next in importance to their indepen-
dence is the great fact of their interdependence. Nothing can secure
for human government and for the authority of law which it repre-



2:ii; THE PEACE CONFERENCE AT THE HAGUE

chapt.r V uf arbitration, such as you liave mentioned in your
Address of uddrcss. Many proposed codes of arbitration and
fote. ^ " rul(!S of procedure have been made, but up to the
present time the procedure has been regulated by
tlie arbitrators, or by general or special treaties.
No\Y it seems to me that new codes and i-egulations
of arbitration, whatever may be their merit, do not
greatly advance the grand cause for which we are
gathered here. If it is desired to take a step in
advance, I am of the opinion that it is absolutely
necessary to organize a permanent international tri-
bunal which can be called together immediately at
the request of contending Nations. This principle
once established, I believe we shall not have any

Historical sents so deep a respect and so firm loyalty as the spectacle of Sovereign
note on tlie and independent States, whose duty it is to prescribe the rules of
attitude of justice and impose penalties upon the lawless, bowing with reverence
States on the I'efore the august supremacy of those principles of right which give
subject of to law its eternal foundation."

Arbitration. 'pj^g publication by this Government of the exhaustive " History

and Digest of the International Arbitrations to which the United
States has been a party," six volumes, by Professor John Bassett
Moore, former Assistant Secretary of State, is a significant event in
the history of arbitration. This work shows beyond controversy the
applicability of judicial methods to a large variety of international
disagreements, whicli have been successfully adjudicated by individual
arbitrators, or temporary boards of arbitration chosen by the litigants
for each case. It also furnishes a valuable body of precedents for the
guidance of future tribimals of a similar nature. But perhaps its
highest significance is the demonstration of the superiority of a per-
manent tribunal over merely special and temporary boai'ds of arbitra-
tion, with respect to economy of time and money as well as uniformity
of method and procedui'e. The Delagoa Bay award was made subse-
quently to the publication of tliis "History and Digest," otherwise one
more striking example, illustrating the same idea, might have been
added.



THE ARBITRATION TREATY 237

difficulty in agreeing upon details. The necessity of Chapter v
such a tribunal and the advantages which it confers,
as well as the encoiu-agement and in fact the pres-
tige which it will give to the cause of arl)itration,
have been demonstrated with as much eloquence as
force and clearness by our distinguished colleague,
M. Descamps, in his interesting essay on arbitration,
of which an extract will be found among the Acts
and Documents so graciously furnished to the Confer-
ence by the Netherlands Government. I have no
more to say upon this sul^ject, but I would be very
grateful to you, Mr. President, if l^efore proceeding
any further you would consent to elicit the ideas
and sentiments of the Committee u})on the propo-
sition which I have the honor of submitting to you,
touching the establishment of a permanent inter-
national tribunal of arbitration."

Wl]ile this sj^eech called forth no immediate reply,
it nevertheless struck the keynote, as it were, of the
subsequent discussions. It was immediately followed
by the production of tlie Russian proposal for a per-
manent court, and it prevented a waste of time in
desultory discussions of preliminaries. It was the right
word, said at the right time, and marked a turning-
point in the history of the Conference.

There can be no (loul)t that the establishment of a
permanent court of arbitration satisfies one of the
most profound aspirations of civilized peoples. In
view of the progress hitherto attained in the mutual
relations of States this great institution can and
ought to be a mighty power making for the cause of



L»;5S TUE PEACE CONFERENCE AT THE HAGUE

Chapter V right and justicG tliroiigliout tliG worlcl. The organ-
ization of such a court was soon found to present no
insurmountable obstacles — upon the one condition,
however, that it must be founded upon the principle
that the community of nations is one of coordination
and not of suljordination, and that this new organ
of international justice must always retain, as M.
Descamps expressed it, the character of " a free tribu-
nal in the midst of independent States."

In the elaboration of the plans for the Court by
the Comite (TExamen the project submitted by Lord
Pauncefote on behalf of Great Britain was, by com-
mon consent, accepted as the basis of the discussion.
Besides this the delegations from Russia and from
the United States presented plans of which the more
valuable features were incorporated in the final re-
port of the Committee. The distinctive features of
the British proposal were as follows : —
The British 1. Tlic appointment by each Signatory Power of
proposal. ^^^ equal number of arbitrators, to be placed upon a
general list entitled Members of the Court ; 2. The
free choice from this list of arbitrators, called to form
a tribunal for the particular cases submitted to arbi-
tration by the various Powers ; 3. The establishment
at The Hague of an international Bureau acting as
chancellery of the Court; 4. The establishment of
a council of administration and control, composed of
the diplomatic representatives of the Powers accred-
ited to The Hague ; the Minister of Foreign Affairs
of the Netherlands being added as President upon
the sugo;estion of Ambassador White.



THE ARBITRATION' TREATY 239

The Russian project had for its fundamental ideas chapter v
the following: 1. The designation, by the present The Knssian
Conference, for a period which should last until the'^'^"^'"'"^ '
meeting of another similar Conference, of five Powers,
to the end that each of these in case of an a2:reement
for arbitration, should nominate one judge either
from among its own citizens or from without ; 2. The
establishment at The Hague of a permanent Bureau
with the duty of comnuuiicating to the five Powers
appointed the request for the appointment of arbitra-
tors by the contending parties.

The American plan differed from the others chiefly The American
in the following features: 1. Tiie appointment by^'^"'
the lii<ji:liest court of each State of one member of the
international tribunal ; 2. The organization of the
tribunal as soon as nine Powers should adhere to
the Convention ; o. The appointment of a particular
bench, to sit for each case submitted, according to
the agreement between the contending States. This
agreement might call for the sitting of all the mem-
bers of the tribunal, or for a smaller given nuuiber,
not less, however, than three. Whenever the Court
consisted of not more than three judges none of the
latter should be a native, subject, or citizen of either
of the litigating States. 4. The right of the litigating
States, in particular cases and within certain limits
of time, to have a second hearing of the question
involved before the same judges.

The preliminary discussion upon the subject of the
permanent Ccjurt of Arliitration in the Comite cVEx-



240 THE PEACE CONFERENCE AT THE HAGUE



Chapter V

The discus-
sion in the
Coinitd
d' Examen.



The declara-
tion of the
French
Delegation.



amen was one of particular importance and interest,
and took place on the Oth of June in the Salle de
Treves in the Palace of the Binnenhof at The Hague,
where most of the sessions of the Committee were
held. At the opening of the session, M. Bourgeois,
the Chairman, on behalf of the French Delegation,
read a statement to the effect that the French Dele-
gation, recognizing that a common purpose animated
the different projects submitted to the Committee, and
that the principles involved were sufficiently stated
in one or the other of these projects, had come to the
conclusion that it was not necessary on their part to
submit a separate project, but, under the double
guaranty of entire liberty in having recourse to the
tribunal, and the liberty of choosing arbitrators, the
deleo-ation did not hesitate to f2;ive from the start its
cordial adhesion to the proposed new institution.
" Under this double guaranty," said M. Bourgeois,
"we do not hesitate to support the idea of the perma-
nent institution, always accessible and charged with
applying rules and following the procedure estab-
lished between the Powers represented at the Confer-
ence at The Hague. We also accept the establishment
of the international Bureau, which should be estab-
lished to give, as it were, continuity, and serving as
a chancellery, clerk's office, and archives of the arbi-
tral tribunal. \ye believe that it is particularly use-
ful that it should be continuous in its service, not
only for the purpose of preserving at one common
point the judicial intercourse between the Nations,
and for the purpose of rendering more certain the



THE ARBITRAriON TREATY 241

unity of procedure, but also for the purpose ofcimpterv
reiiiindirig incessantly the spirit of all peoples by a
conspicuous and respected sign, of the superior idea
of right and of humanity, which the invitation of His
Majesty the Emperor of Russia calls upon all civil-
ized States to follow in common up to the point
of realization. The French Delegation at the same Proposed



Online LibraryFrederick William HollsThe peace conference at The Hague, and its bearings on international law and policy → online text (page 17 of 39)