Frederick William Holls.

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

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time believes that it is possible to invest this perma- "^e'Bureau.
nent institution with an even more efficacious role.
It is of the opinion that the Bureau might be
invested with an international mandate, strictly
limited, giving it the power of initiative, and facili-
tating in most cases the recourse of Powers to
arbitration.

'' In case there should develop between two or more
of the Signatory States one of the differences recog-
nized as being a proper subject for arbitration, the
permanent Bureau should have the duty of remind-
ing the litigating parties of the Articles of this
Convention, having for its object the right or the
obligation to have recourse, by consent in such a case,
to arbitration.

" It would therefore offer its services to act as an
intermediary between them, in putting into motion
the procedure of arbitration, and opening unto them
access to its jurisdiction. It is often a legiti-
mate prejudice and an elevated sentiment which may
prevent two nations from coming to a pacific arrange-
ment in an excited state of public opinion, — which-
ever of the two Governments first requested arbitra-
tion might fear having its initiative considered in its



242 THE PEACE CONFERENCE AT THE HAGUE

Chapter V owii couTitrv as ail exhibition of weakness, and not as
Pioiiosod bearing witness to its entire confidence in its good

iiiaiKlate to • i ■

the Bureau. rigllt.

-' In giving to the permanent Bureau a particular
duty of initiative, we believe this offer would be
made acceptable. It is the recognition of an anal-
ogous difficulty that has led the Third Committee
not to hesitate, in cases even more serious and more
general, to recognize the right of neutrals to offer
their mediation, and in order to encourage them
in the exercise of this right, the Commission has
declared that their intervention cannot be considered
as an unfriendly act. A fortiori, in the special cases
to which this j^^'e-'^ent convention has reference, it is
possible to give to the permanent Bureau a precise
duty of initiative. It will be charged with remind-
ing the parties of those Articles of this Convention,
which would seem to the Bureau to cover the differ-
ence between them, and it would ask them, therefore,
whether they would consent under conditions foreseen
by themselves to arbitral procedure — in other words,
simply to carry out their own engagements. To a
question thus asked, the answer will be easy, and the
scruple on the score of dignity which might other-
wise prevent such recourse, will disappear.

" In order to put in motion one of the mighty
machines by which modern science is transforming
the world, it is sufficient simply to push a finger at
the point of contact. Still, it is necessary that some
one should be charged with the duty of making this
simple movement. The French Delegation believes



THE ARBITRATIOX TREATY 245

that the institution to wliich such international nian-cimpter v
date may be confided, will play in history a role
which will be nobly usefvd."

It will be seen that the ideas expressed in the last
paragrapii of the statement of the French Delegation
afterward took form in a somewhat different shape
in Article 27 of the present Convention, and refer-
ence will be made thereto in the discussion of that
Article.

At the close of the presentation of the statement
from the French Delegation, Lord Pauncefote read
the following statement : —

"Before entering upon the extremely interesting statement
question which is to engage our attention to-day, IpaunTefote.
wish to take occasion to express my thanks to my
colleagues from Russia and America who have kindly
consented that the plan for a permanent interna-
tional tribunal of arbitration which I have had the
honor to introduce in the Committee should be the
basis 'of our deliberations. In the projects which
they have themselves introduced, improvements of
my own may be found, and the Committee Mdll sin^ely
appreciate their value as well as that of the other
amendments which no doubt will be introduced. I
wish also to thank the First Delegate of France for
the declaration which he has just read, and in which
he has informed the Committee that he also was will-
ing to take my plan as the basis of the discussion,
and at the same time I thank the other members of
the Committee who have done me the honor of
expressing themselves to the same effect. I am per-



244 THE PI'LACE CONFERENCE AT THE HAGUE

Chapter V siuided that in view of the exceptional talents which
are to be found in this Committee, we shall attain a
result worthy of the mandate so nobly confided to
the Conference by His Imperial Majesty the Emperor
of Russia."

The Chairman of the Committee, M. Bourgeois,
thereupon opened the discussion upon the question
of the permanent tribunal of arbitration. Chevalier
Descamps of Belgium first spoke as follows : —
Remarks by " The institution of a permanent Tribunal of
Descamps. Arbitration will represent the common juridical con-
science of civilized peoples. It will correspond to
the progress hitherto realized in the life of nations ;
to the modern development of international contro-
versies ; to the necessity which to-day drives States
to seek in our day a justice more accessible, in a state
of peace less precarious. It may well be a mighty
instrument toward the solemn establishment of the
sentiment of justice in the world. The presentation
of three plans upon this subject by three great Powers
is a fact of the highest importance. These projects
are diverse in character, but it seems possible to
harmonize them in a manner which wdll accomplish
all the results immediately attainable. The establish-
ment of permanent arbitral jurisdictions is by no
means an innovation without precedent in interna-
tional law. The Convention of Berne of October
14, 1890, provides for the establishment of a free
Tribunal of Arbitration, to which the German Dele-
gation, at the very first Conference in 1878, wanted
to confide most important duties and attributes.



THE ARBITRATION TREATY 245

"The establishment of the permanent Tribunal of chapter v
Arbitration presents no insurmountable ditiiculties,
and it may easily be the most important factor in the
international problem before the Conference of The
Hague. The difficulties which the magnanimous
views and wishes of His Majesty the Emperor of
Russia encountered in other respects are one more
reason for us to turn our attention to the organiza-
tion of Mediation and Arbitration. It is necessary
to develop and consolidate the organic interests of
peace. It is upon this suljject that general attention
in all countries has been directed to this Conference,
with hopes which cannot be disappointed without
great and serious damage. The propositions which
we shall formulate and upon which we hope to
harmonize the States here represented will no
doubt Ije modest. The future will develop and en- Looking to
large those features of our work capable of such
enlargement for the good of all peoples and for the
progress of humanity. As for the delegates at this
Conference, it will no doubt be one of the greatest
sources of happiness in their life, to have cooperated
in the accomplishment of this grand result — the
fraternal rajyprochement of peoples and the stability
of general peace."

After this general introduction, M. Descamps stated suggesUons
that according to his views one of the most advan- camps. ^^
tageous features of the permanent tribunal of arbi-
tration would be this, that the members designated
by the different States could meet, say every three
mouths. They would elect a President who should



24(J THE PEACE CONFERENCE AT THE HAGUE

Chapter V be rc-eligible, and they would have the function of
appointing from among their number a bench to sit
in vacation. This would help the disposition of
States wlio wanted to have recourse to the Tribunal
on matters which might not seem to have sufficient
importance to warrant a meeting of the entire court.
To his view this simplification would present many
advantages, by avoiding the necessity of constituting
for each case a complicated and costly mechanism,
and by such an arrangement the Peace Conference
would have constituted a Court which would really
be permanent, in place of a simple international
tribunal. He expressed the ardent hope that these
conclusions would be approved, especially b}" the
delegates from England, Russia, and the United
States.
Impossibility The particular suggestions of M. Descamps were
President of ^^^t prcsscd, and the idea of having a President of
the entire w^f_^ entire proposcd court was found to be absolutely

court. '■ '- _ ^

unacceptable to several of the continental Powers.
The very questions of rank and precedence which the
existence of such an exalted functionary might raise,
were found to be by no means trifling. And it was
felt that whatever advantages might accrue from
such an empliasizing of the idea of permanence, they
nevertheless seemed to be more than counterl:>alanced
by the corresponding embarrassments.
The critical The Critical moment of the discussion had now
thcaiscussion. '^I'l'i'^'Gd, when Professor Zorn, on behalf of the Ger-
man Empire, took the floor for the purpose of oppos-
ing the idea of a permanent trilnmal. His speech



THE ARBITRATION TREATY 247

was a model of diplomatic tact, being animated chapter v
throughout by the most conciliatory spirit and a
lofty idealism.

Professor Zorn stated that he had listened with Speech of
the greatest attention and with profound emotion tozum.
the preceding declarations. He recognized to the
fullest extent the solemnity of this hour, when the
representatives of the greatest civilized Powers were
called upon to pronounce judgment upon one of the
gravest problems which could be presented to them,
and he desired to express the sincere hope that the
day would come when the noble wish of the Czar
might be accomplished in its entirety, and when
conflicts between States might be regulated, at least
in the great majority of cases, by a permanent inter-
national court. At the same time, he added that,
while he personally was animated by this wish and
hope, it was not possible for him to give way to
illusions ; and this was, no doubt, the attitude of his
Government.

The German Government considered it necessary Ohjections of
to emphasize the fact that the proposition now pro- J5ov^r*i!me" t
posed and submitted to the iudo:ment of this Com- *" ^ ^*''™'^'

^ _ _ JO nent court.

mittee was an innovation of a most radical character,
and while it was a most generous project, it could
not be realized without bearing with it great risks
and even great dangers which it was simple prudence
to recognize. He asked whether it would not be
better to await, upon a subject of such profound
importance, the results of greater preliminary expe-
rience, for in a word he declared that in the opinion



•J 18 THE PEACE CONFERENCE AT THE HAGUE

Chapter V of tliG German Government the plan for the perma-
nent International Tribunal was at least premature.
If the experience of occasional tribunals proved
successful, and if they realized the hopes reposed in
them, the German Government would not hesitate
to cooperate to that end, and would now accept the
experiment of arbitration having far greater scope
than anything which had been in practice up to this
day ; but it could not possibly agree to the organiza-
tion of the permanent Tribunal before having the
preliminary benefit of satisfactory experience with
occasional arbitrations. " In this situation," said
Professor Zorn, ''notwithstanding my intense desire
to assist with all my might in bringing the work of
Motion to this Committee to a successful conclusion, I regret
p/ovisiou. to be compelled to move that Article 13 of the origi-
nal Russian project be made the basis of further
discussion instead of the plans for the permanent
Tribunal, inasmuch as this Article accurately repre-
sents the views of the Imperial German Government
upon the subject."
The original Article 13 of the original Russian project was as
proposal. follows : " With a view to facilitating recourse to
arbitration, and the successful application of the
principle, the Signatory Powers have agreed to set
forth by common accord for cases of international
arbitration, the fundamental principles which should
be followed in the establishment of the arbitration
tribunal, and the rules of procedure which should be
followed during the course of the litigation, up to the
rendering of the arljitral decision. The application



THE ARBirRATlON TREATY 249

of these fundamental principles, as well as of the Chapter v
arbitral procedure referred to in the Appendix of the
present article, may be modified by virtue of a special
agreement between the States having recourse to
arbitration."

The motion made on behalf of the German Em-
pire being preliminary in character, was immediately
taken up and the Chairman briefly opened the dis-
cussion on the subject.

M. Asser of the Netherlands recognized that it Speech of
would certainly be useful to have experience, but' "
according to him this experience had already been
had, in the occasional arbitrations which had hereto-
fore occurred. What was left to try was precisely
the plans now proposed, for they all implied the
establishment of a court which should be entirely
voluntary. It seemed to him that the conclusion
which Professor Zorn had arrived at need not be
quite so absolute, and that without receding from the
opinion which he had just stated, in a manner which
had deeply impressed the Committee, he might still
postpone further opposing the establishment of the
permanent tribunal of arbitration, and might consent
to look upon it, according to tlie expression of Count
Nigra, as a '' temporary permanent tribunal."

Professor Zorn was not unmindful of the validity Reply of
of M. Asser's argument, l)ut he raised another objec-2^o^jj';^^'''^
tion. There was obviously a great difference between
an occasional arbitration, and the institution of a tri-
bunal permanently charged with exercising the role
of an arbitrator according to a code of procedure and



•J.-.O THE PEACE CONFERENCE AT THE HAGUE

Chapter V Certain rules determined in advance. Besides, the
German Delegate wished to remind the Committee
that the Russian Government had modified its first
project. The German Government had accepted the
original Russian project and no other, as the basis
of the work of tlie Conference. He could therefore
not to-day accept this experimental establishment of
a permanent tribunal, even provisionally : first, be-
cause such an establishment had not, according to
his view, been foreshadowed in the initial programme
of the Russian Government ; and secondly, because
practically it was very prol3al)le that a provisional
permanent tribunal would not be long in becoming
definitely and actually permanent. Under these
circumstances the German Delegate insisted upon
his motion.

Speech of Couut Nigra of Italy appealed directly to the spirit

of conciliation which the German Delegate had so
clearly shown, and in a brief speech of great force
and beauty he called attention to the consequences
of a negative decision, upon a question which inter-
ested all civilized humanity to so great a degree.
The hopes and as})irations with which public opinion
was waiting for the results of our labors had become
so great that it would be positively dangerous to dis-
appoint them entirely, by rejecting the idea of a per-
manent tribunal. If to all these aspirations the
Conference returned a curt non i^ossumus, the dis-
satisfaction and disappointment Avould be tre-
mendous. In such a case the Conference would
incur most grave responsibilities before history,



Count Nigra.



THE ARBITRATION TREATY 251

before the peoples represented here, and before the chapter v
Emperor of Russia. In conclusion Count Nigra
earnestly requested the German Delegate not to
refuse categorically to go on with the discussion, but
to refer the question once more to his Government.

Professor Zorn responded that he recognized the Provisidnai
force ot Count JNigras remarks to then^ tullest the (iciman
extent, and that he would therefore not abstain fi'om 11'?^^*^" ^'
cooperating further with the work of the Committee
in the direction of the permanent tribunal, although
it must be clearly understood that he could by no
means bind his Government.

This declaration of Professor Zorn was entered
upon the minutes, it being w^ell understood that it
reserved his entire liberty of action and ultimate
decision.

M. de Martens made the following statement on statement by

M de

behalf of Russia: "When the Russian Government Martens,
formulated its first proposals concerning arbitration,
it doubtless had in view the general outlines of the
project which was distributed, but this project was
nothing but an outline, and necessarily required many
amendments and additions, and some of these had
now been presented on behalf of the Russian Gov-
ernment." He had always thought, without going
into the details of the question, that this was the
time and place to provide for the procedure and for
the establishment of arliitral tril:>unals, always giving
to the Powers in litigation complete liberty in choice
of arbitrators. The Russian Government considered
that its duty was complete when it suggested to the



252 THE PEACE CONFERENCE AT THE HAGUE

'Chapter V Powers the result of its reflections without wishing
to impose its opinion upon any one. There w^ere
provisions in all of the projects under discussion
which naturally would give rise to the fears ex-
pressed by Professor Zorn, but these were misunder-
standings which it ought to be easy to dispose of
during the discussion which was sure to arise.
Might it not be possible, for example, to adopt at the
head of all the provisions about the permanent
tribunal an article recognizing the absolute liberty of
the parties in litigation to make their own free
choice. It might be expressed as follows : —

" In the case of a conflict between the signatory
or adhering Powers they shall decide whether the
controversy is of a nature to be brought before a
tribunal of arbitration, constituted according to the
following Articles, or whether it is to be decided by
an arbitrator or a special tribunal of arbitration."

The Chairman thousrht that as the Committee were
agreed in declaring that the permanent tribunal of
arbitration should not be obligatory upon any one,
and as w^e were all in accord upon this principle, it
might be best to reserve the question as to whether
it should be expressed in a preliminary article or
otherwise. The Committee being of the same
Speech of Opinion as the Chairman upon this point, M. Odier
of Switzerland washed to adhere expressly to the
declarations previously made by M. Descamps and
Count Nig-ra in favor of the establishment of the
permanent tribunal of arbitration. There had arisen
in the world more than a hope — it w^as an expecta-



M. Odier.



THE ARBITRATION 'JREATY 25:}

tion — and public opinion was convinced, especially Chapter v
on the question of arbitration, that important results
would come from this Conference. It was not pos-
sible to deny that practically we had it in our power
to take at this moment a new and decisive step for-
ward, in the road of general human progress. If we
recoil or reduce to insignificant limits the innova-
tions which every one expects from us, we would
cause a universal disappointment of which the re-
sponsibility would rest forever upon us and upon our
Governments. The one important innovation which
we can present to humanity at large is the establish-
ment of a permanent institution which will always
be in evidence before the eyes of the world, a tangi-
ble result, so to speak, of the progress which had
been made. While recognizing the force of the
objections raised on behalf of Germany, M. Odier,
therefore, cordially joined in the wish expressed by
Count Nigra that the German Delegate would once
more refer the question to his Government.

Professor Lammasch of Austria-Hungary also speech of
wished to express his opinion and his reserves. Lammascii.
Notwithstanding the fact that the circular of
Count Mouravieff had made no mention whatever
as to the possibility of the establishment of the
permanent tribunal, he had not opposed the accept-
ance by the Committee of the project of Lord
Pauncefote as the basis of the discussion, but he
was not empowered to act so far as to declare that
Austria-Hungary was ready to indorse the establish-
ment of a permanent tribunal. This institution



2.>l THE PEACE CONFERENCE AT THE HAGUE

Chapter V might, indeed, be establislied in many ways, some
of wliicli might be objectionable, according to the
further decisions of the Conference. Professor Lam-
masch concluded by saying that he accepted the
project of Lord Pauncefote as the basis of the
discussion, in order not to delay or hinder the very
important work of the Committee, and that he was
ready to take part in the discussion with all possible
good will, but imder the express reserve that his
participation in the debate could have no other char-
acter than that of a preliminary examination of the
question, and that it could not for the present in any
way commit his Government. This discussion and
reserve of Professor Lammasch was duly entered
upon the minutes.

Mr. Holls, on behalf of the United States of Amer-
ica, made a declaration, of which the following is a
summary : —

Speech of " I have listened with the greatest attention to the

important exchange of opinion which has just taken
place between the representatives of different great
European States. It has seemed proper to me, repre-
senting, as it were, a new Power, that precedence in
the discussion should naturally be given to the dele-
gates of the older countries. This is the first occa-
sion u[)on which the United States of America takes
part under circumstances so momentous in the delib-
erations of the States of Europe, and having heard,
with profound interest, the views of the Great Euro-
pean Powers, I consider it my duty to my Govern-
ment, as well as to the Committee, to express upon



Mr. Holls.



THE ARBITRATION TREATY 25o

this important subject the views of the Government Chapter v
of the United States with the utmost frankness. I
join most sincerely and cordially in the requests
which have been addressed to the honorable dele-
gate of the German Empire.

"In no part of the world has public opinion so
clearly and unmistakably expressed its adherence
to the noble sentiments of His Majesty the Em-
peror of Russia, which have led to the calling of
this Conference, as in America, both North and
South. Nowhere do more sincere wishes, hopes,
and prayers ascend to heaven for the success of
this Conference. The Commission of the United
States of America has received hundreds of expres-
sions of sympathy and support, not only from the
United States, but from the entire American Conti-
nent, and these manifestations come, not only from
individuals, but from secular organizations of the
highest standing and the widest influence and from
great and powerful churches — some of them rej)re-
senting millions of members. In consequence we,
the members of this Conference, are bound, so to
speak, by a most solemn moral obhgation, incurred,
not between the Governments, but between the
peoples of the civilized world. As it was most fit-
tingly expressed in a great national crisis of my
own country by its greatest modern statesman, Abra-
ham Lincoln, ' we cannot escape history. We, of this
Conference and of this Committee, will be remem-
bered in spite of ourselves — no personal significance
or insignificance can spare one or another of us.'



250 THE PEACE CONFERENCE AT THE J I AGUE

Chapter V Let iTiG ask tliG lioiiorable members of this Committee

Speech of Mr. to approacli the question before us in a practical
Holls. . . ^ , . „ , ., T , .

spirit, such as is generally attributed to us Ameri-
cans ; let us observe the true state of public opinion.
Public opinion, all over the world, is not only eagerly
hoping for our success, but it should be added that
it has become uneasy and anxious about it. The
powers of unrest and discord are even now exulting
over what they hope will prove to be our ignominious
failure.

" On the other hand, the fear is abroad, most



Online LibraryFrederick William HollsThe peace conference at The Hague, and its bearings on international law and policy → online text (page 18 of 39)