Frederick William Holls.

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

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unmistakably, even among our friends and well-
wishers, that by reason of conflicting interests of a
political nature, or for other causes which cannot be
discussed openly, the results of this Conference may
turn out to be purely platonic, inadequate, unsatis-
factory, perhaps even farcical ; and, moreover, it
should be clearly recognized and remembered that
public anxiety on this point is based upon recent
experience in a case presenting many analogies to
the situation before ns. A Conference was called
not many years ago upon the noble and generous
initiative of His Majesty the German Emperor,
upon a subject profoundly interesting to mankind ;
namely, the proper protection of the interests of
labor, and it met at Berlin, having a most distin-
guished and representative membership ; but what
was the result ? Resolutions of a purely academic
character were adopted, and that Conference is
even now almost forgotten.

" Civilized, educated, progressive public opinion,



THE ARBirRATIOX TREATY 257

which is beyond all question the most potent and chapter v
the one irresistible moral influence in the world to-day
— remembering former failures — will not pardon us
if we offer it a new acute rebuff, and the very hopes
which are now concentrated upon us and our work
will be the measure of the disappointment which
would follow our failure. Moreover, the establishment
of a permanent International Court is tlie one great suc-
cess which is hoped for, not only as being brilliant
and striking, but also as being attainable, — in fact,
within our very grasp. Without doubt the honorable
delegate from the German Empire is correct, when
he regards even the Russian project as a decided step
in advance over the present condition of affairs as
regards arbitration, but from the point of view of
the practical man — the point of view of efficient
and critical public opinion all over the world — I
venture to say most emphatically that we shall have
done nothing whatever if we separate without having
established a permanent tribunal of arbitration."

This closed the preliminary discussion, and the
Committee thereupon proceeded to the adoption of
the following Articles — the cordial adherence of the
German Empire having l^een subsequently obtained subsequent
and announced to the Committee at a later nieeting!|jJ^'],'^^J,j^.g^^f
by Professor Zorn, who stated that his Government ^e'''"'*">-
" fully recognized the importance and the grandeur
of tlie new institution."

Article 20. With the object of facilitating an a court to be
immediate recourse to arbitration for international ^''s*'^'^^^-



258 THE PEACE CONEERENCE AT THE HAGUE

Chapter V differences wliicli could not be settled by diplomatic
met bods, tbe Signatory Powers undertake to organize
a. peruianent Court of Arbitration accessible at all
times, and acting, unless otberwise stipulated by the
parties, in accordance with the rules of procedure
included in the present Convention.

Jurisdiction. Article 21. The permanent court shall have
jurisdiction of all cases of arbitration, unless there
shall be an agreement between the parties for the
establishment of a special tribunal.

The proposition of Count de Macedo of Portugal
to indicate in the body of this Article a preference on
the part of the Signatory Powers for recourse to the
permanent tribiuial, was not adopted, for the reason
that it appeared to the Committee, and subsequently
to the Conference, that such preference Avas suffi-
ciently indicated by the very fact of the establishment
of the permanent tribunal, and the desire to avoid
everything which could by any possibility be regarded
as limiting, even by suggestion, the entire liberty of
the Powers.

Bureau and Aeticle 22. An international Bureau shall be
record otfice. established at The Hague, and shall serve as the
record office for the Court. This Bureau shall be the
medium of all communications relating to the Court.
It shall have the custody of the archives, and shall
conduct all the administrative business. The Signa-
tory Powers agree to furnish the Bureau at The
Hague with a certified copy of every agreement of
arbitration arrived at between them, and of any
award therein rendered by a special tribunal. They
also imdertake to furnish the Bureau v/ith the laws,



THE ARBirRATION TREATV 259

rules, and documents, eventually declaring tlie execu- Chapter v
tion of the judgments rendered by the Court.

The United States of America endeav^ored to add rubik-ation of

, . , . , . . 1 1 • ,1 1 T i • documents.

to this Article a provision looknig to the publication
of documents and records, and requiring the Bureau
to furnish any one paying the cost of transcription
and certification, with duly authenticated copies of
any papers filed in the record office. The Committee
was of the opinion that such a rule might conceivably
interfere with the rights and interests of litigating
Powers, especially if no restriction were adopted
regarding the time of making the application for
such copies. It was thought best to leave this
question to the regulation of the Bureau itself and
the council of administration, in the hope that every
possible facility would be given, in the interests of
the development of the science of international law,
to the free publication of all documents connected
with litigations before the court which may be of
scientific or general interest.

Article 23. Within three months following the Appointment
ratification of the present act, each Signatory Power oJJcfoJ'^ ^^
shall select not more than four persons, of recognized judges,
competence in questions of international law, enjoy-
ing the highest moral reputation, and disposed to
accept the duties of arbitrators. The persons thus
selected shall be enrolled as members of the Court,
upon a list which shall be communicated by the Bu-
reau to all the Signatory Powers. Any alteration
in the list of arbitrators shall l)e brought to the
knowledge of the Signatory Powers by the Bureau.



260 THE PEACE CONFERENCE AT THE HAGUE

Chapter V Two or Hiore Powers may unite in the selection of
one or more members of the Court. The same per-
son may be selected by different Powers. The mem-
bers of the Court shall be appointed for a term of six
years, and their appointment may be renewed. In
case of the death or resignation of a member of the
Court his place shall be filled in accordance with the
method of his appointment.

According to the American plan, each Signatory
Power was to appoint one member of the permanent
tribunal. In the English proposal this number was
made two, but the Committee on Arbitration, on
motion of Professor Zorn on behalf of the German
Empire, adopted the present provision, "not more
than four." The reason for this amendment was
given on behalf of the German Empire as being the
desirability of having the Court composed not solely
of mternational lawyers or jurists. As the Article
stands a Government may, if it deems it advisable,
appoint a military, scientific, or geographical expert,
as well as a member of the legal profession, the only
qualification being that each appointee shall be of
recognized competence in questions of international
law and enjoy the highest moral reputation, as well
• as be disposed to accept the duties of arbitrator.

Acceptance of The latter qualification is of particular importance.

IrbitStor.''^ It is to be supposed that each State will select men
of the highest professional standing for these posi-
tions, and the question of payment, except when
actually sitting on a particular bench of arbitration,
is left entirely to the States themselves. The obliga-



THE A RBI THAT ION TREATY 261

tion of each appointee to accept the duty of arbitra- Chapter v
tor, without regard to his personal convenience or
the possible comparative insignificance of the ques-
tions involved, is absolute. Under this convention
tlie highest professional talent of each civilized coun-
try is meant to be put at the disposal of every
country in the world, large or small, rich or poor,
for the settlement of international differences. In
the beginning, and while the charm of novelty lasts,
it is not likely that any arbitrator selected will
refuse to act upon any question properly before the
Court. If, however, the tribunal shall prove to be as
successful as its promoters hope, a large nundDer of
questions of minor or technical interest may very
likely be brought before it hereafter, and it should be
clearly understood that in the opinion of the Com-
mittee an arbitrator will have no more right to select
only important or interesting cases upon which to sit
than a member of a jury panel in an ordinary Court.
Under these ch-cumstances the readiness of a member
of the tribunal to leave what might very likely be
a lucrative practice or employment at home, for the
purpose of indefinite service at The Hague, should
certainly be an element in the agreement between
such arbitrator and the Government appointing him,
on the subject of his compensation.

The American plan for the permanent interna- Appointment
tional Court of Arbitration provided for the appoint- |'.^ul.\''/,''fjjpf
ment of judges by the members of the highest court ^"^^^^ ''^J®''*^^-
in each of the Signatory States. This feature, which
undoubtedly commends itself at first blush more than



202 THE PEACE CONFERENCE AT THE IIACIUE

Chiipur V any other to the public opinion of Amorica, was
Appointment found to be entirely impracticable, as well as abso-

liy the biijlit'st , i i ^ r\ • i i t>

Court in each lutcly Unacceptable to the Oontniental rowers.

htate rejected, -"pi^pj^e ig y\o liigliest Court for tlic entire Empire
of Austria-Hungary, and the peculiar relations be-
tween the different parts of that Empire are not
calculated to make joint action by the two highest
Courts practicable or desirable. In Russia the high-
est Court consists of a senate of one hundred mem-
bers, whose cooperation in the matter of appointments
would contradict all national traditions. Similar ob-
jections, based, however, entirely upon the antici-
pated actual workings of the scheme, were raised
by many members of the Conference. The Ameri-
can representative on the Comlte d'Examen there-
upon proposed the amendment in a permissive form,
to the effect that it should apply wherever practicable
or wherever the circumstances permitted. But even
this plan was emphatically negatived, the only vote in
its favor being that of the United States of America.
The British Delegate, Lord Pauncefote, abstained from
voting, explaining that while he favored the idea in
the abstract, he was convinced that it was impossible
of application in Continental countries. During the
discussion one representative after another of the
States having members on tlie Comitt (VExamen
announced that the idea had been suo;g;ested to his
Government, but that it had been received with posi-
tive disfavor, not only because of its alleged imprac-
ticability, but as being, according to Continental ideas,
vicious in principle. The organization of the (Jourts



THE ARI'.rntAl'WX treaty 263

in nearly all Continental countries is based upon the cimpter v
traditions of Roman jurisprudence, and these do not
favor any action on the part of a judicial tribunal
having reference to the selection of a num or men
for any particular purpose, even if the latter be
judicial in its nature. Furthermore, in several large
European States, notably Germany, the rules govern-
ing the practice of the law are such as to prevent
the members of the highest Court from having any
direct knowledge of the ability or reputation of many
of the most noted judges and lawyers in the country,
since practice before the highest Court is restricted to
residents of the city of its location and to meml)ers
of its particular bar. Under these circumstances
the members of these particular Courts are not, like
the justices of the American Supreme Court or the
members of the Privy Council of Great Britain, the
best possible advisers, with reference to the selection
of a creditable representative upon the great tribu-
nal, and it was even stated that they were, in many
countries, about the last authority to whom the
appointing power would be likely to turn with suc-
cess for such advice and cooperation. Out of courte-
ous regard for the United States, and in order to
recognize the fundamental idea upon which this pro-
posal was based, the Comife cV Exmnen directed its
reporter to emphasize in the official report the impor-
tance of a complete disregard of all political consider-
ations in the choice of members of the Court. The
American representative cordially acquiesced in this
decision.



204 THE PEACE CONFERENCE AT THE HAGUE



Chapter V

Manner of
selection of
the members
of particular
tribunals.



Article 24. Whenever the Signatory Powers wish
to have recourse to the permanent Court for the set-
tlement of a difference that has arisen between them,
the arbitrators selected to constitute the Tribunal
which shall have jurisdiction to determine such dif-
ference, shall be chosen from the general list of mem-
bers of the Court. If such arbitral tribunal be not
constituted by the special agreement of the parties,
it sliall be formed in the following manner : Each
party shall name two arbitrators, and these together
sliall choose an umpire. If the votes shall be equal,
the choice of the umpire shall be intrusted to a third
Power selected by the parties by common accord. If
an agreement is not arrived at on this subject, each
party shall select a different Power, and the choice
of the umpire shall be made by the united action of the
Powers thus selected. The Tribunal being thus con-
stituted, the parties shall communicate to the Bureau
their decision to have recourse to the Court, and the
names of the arbitrators. The Tribunal of arbitration
shall meet at the time fixed Ijy the parties. The
members of the Court, in the discharge of their
duties, and outside of their own country, shall enjoy
diplomatic privileges and immunities.



It is believed that this Article will be found to pro-
vide for every possible eventuality in any actual dis-
pute. It is quite probable that in many cases the four
arbitrators selected l^y the parties may not be able
to agree among themselves upon the subject of the
umpire. It is also conceivable that the same third
Power charged with the duty of selecting the umpire
would not be agreeable to both litigants. It is, how-
ever, hardly probable that two neutral Powers, each



THE ARBITRATION TREATY 265

selected in analogy to the appointment of " seconds " Chapter v
under Article 8, should not be able to agree between
themselves upon a suitable arbitrator or umpire for
any conceivable controversy.

The chief delegate from Sweden and Norway, The choice of
Baron de Bildt, proposed to provide expressly that si'ibje!"' t'/
either litigating Power might object to the choice of Jj^!'^'^^^'^)^!"
the umpire, selected even with the aid of its own *'"s ^*'*'^^^-
chosen arbitrators. It was, however, pointed out in
the debate by M. Asser of Holland and Mr. Holls of
the United States, that the agreement to arbitrate is
not complete under this Article until each party has
communicated its willingness to arbitrate to the
international Bureau, together with the names of all
the arbitrators whose judgment is to be invoked,
including, of course, the umpire. It follows that
the votes for umpire on the part of the arbitra-
tors first selected by the parties are subject to the
ratification and approval of the two Powers in
controversy, inasmuch as either might decline to
communicate the name of an obnoxious member of
the tribunal to the international Bureau. In other
words, in voting for the umpire, the arbitrators first
selected act simply as agents for the Government
which has selected them, and the possibility of any
Powder being bound by the judgment of a court, a
majority of whose members might be selected with-
out the concurrence of each litis-atina: Power, is
carefully excluded. Any different provision would
infringe upon national sovereignty, and hence be
entirely inadmissible.



]irivileges and
iinmunities.



26G THE J'EACE CONFEUK.XC E AT THE HAGUE

(hai.t.r V These opinions were, on motion of Baron cle Bildt,

spread iij)on the minutes as authoritative interpreta-
tions of the Article, so far as his Government was

Dissent (if Concerned. Chevaher Descamps dissented very em-

Descainps. phaticallj froui the views of his colleagues, holding
that the Governments were bound by the choice of
their nominees, and the question was not decided by
the Comite cV Examen as a body.

Diplomatic The cxact Cxtcut of the diplomatic privileges and
immunities to be enjoyed by members of the Court
outside of their own country, and also within its
limits, if the tribunal of arbitration should be con-
vened there, has not been fixed in detail. It was
recognized by the Connnittee that the subject might
well be left to the good sense of the parties con-
cerned, with the result that satisfactory rules of pro-
cedure and precedence would no doubt be evolved in
time. It will no doubt tend to increase the dignity
and importance of the Court itself, if its members
are recognized the world over, and even when not
selected to sit upon any particular bench, as bearing
an international or diplomatic character, and holding,
as it were, a particular trust in behalf of peace and
humanity. It would, however, defeat the very
object of the Court, if any questions personal to the
members themselves were permitted to assume the
character of serious international problems, even to
the extent which has been true in the history of
international law, regarding the rights and privileges
of ordinary diplomatic representatives. In this
respect, as in many others, much will depend upon



THE ARBITRATION TREATY 267

the precedents established b}^ the good sense and tact chapter v
of the members first appointed.

Article 25. The Court of Arbitration shall ordi-Piace of
narily sit at The Hague. Except in cases of neces- **'""' ^'
sity, the place of session shall be changed Ijy the
court only with the assent of the parties.

The expression in the original treaty for the word
necessity is force majeure or vis major, which has
a well-recognized meaning in the Roman Law. It
is therefore only in cases of compulsion by violence,
either of war, riot, or governmental action, that the
parties to the controversy lose control of the ques-
tion of the seat of the Court of Arbitration.

Article 2G. The International Bureau at The Facilities
Hague is authorized to put its offices and its staff Jjl^J^'^j^f^f^^®
at the disposal of the Signatory Powers, for the special
performance of the duties of any special tribunal *"^""^^^'
of arbitration. The jurisdiction of the permanent Jurisdiction
court may be extended under conditions prescribed |^^^^"^^'j^|^^
by its rules, to controversies existing between non-
Signatory Powers, or between Signatory Powers and
non-Signatory Powers, if the parties agree to submit
to its jurisdiction.

The Duty of Signatory Powers, and the Monroe

Doctrine

Article 27. The Signatory Powers consider it
their duty, in case a serious dispute threatens to break
out between two or more of them, to remind these
latter that the permanent court of arbitration is open
to them. Consequently they declare that the fact
of reminding the parties in controversy of the pro-



2(58 THE PEACE CONFERENCE AT THE HAGUE

Chapter V visions of tliG present convention, and the advice
given to tliem, in the higher interests of peace, to
have recourse to the permanent court, can only be
considered as an exercise of good offices.

The French This Articlc is the particuhar contribution of the
propobi lun. ]7j,g^^g|-^ Delegation to the present convention, and its
provisions were foreshadowed in the statement read
to the arbitration committee by M. Bourgeois, as
given on page 240. Originally the French Delega-
tion favored a provision conferring upon the Bureau
at The Hague the particular duty, in the form of a
mandate from every Signatory Power, to remind any
Power, before the outbreak of hostilities, of the pro-
visions of the present convention, and to give the
advice, in the su|)erior interests of peace, to have
recourse to the permanent court of arbitration. It
was, however, pointed out in the debate by M. de
Martens, that the chief of the international Bureau
at The Hague could hardly be regarded as enjoying
any particular moral authority, and that a communi-
cation from him, especially at a time when public
opinion in the States in controversy might be excited
and sensitive, would incur the danger of being not
only disregarded, but resented or repelled with a
snub, bringing discredit not only upon the Bureau,
but also upon the Court and the whole principle of
arbitration. The Committee adopted this view by a
majority vote, France, England, and Switzerland
favoring the original proposition, Germany, Belgium,
Italy, Austria, and Russia voting " No," and Holland
and the United States abstaining-. The American



THE ARBITRATION TREATY 2G9

representative refrained from voting against the Chapter v
proposition, because lie favored the principle, while
dissenting from the proposed method of its realiza-
tion. M. Bourgeois immediately modified the j^ropo-
sition, which was then submitted to the vote of its
present form and was unanimously approved, the
American representative qualifying his approval by
reserving the right to make a declaration on behalf by ^fe^ '^°
of his Government reo-arding; the traditional ijolicv '^™^'""^"

o o i J representa-

of the United States as to purely European or purely t^^'^-
American questions, after consultation with his col-
leagues.

According to this Article every Signatory Power
recognizes a new international obligation, as a duty
toward itself and every other Signatory Power. Next
to the establishment of the Permanent Court of Arbi-
tration this Article undoul^tedly marks the highest
achievement of the Conference, for no doubt the
establishment of the court would have been incom-
plete, if not nugatory, without this solemn declara-
tion, which is undoubtedly "the crown of the whole
work," as it was declared to be by one of the Ameri-
can representatives in the Committee on Arbitration.
At the same time, there was just one Power whose
vital interests might be directly and unfavorably
affected by this Article, if adopted without qualifica-
tion, and that Power was the United States of
America. The declaration, for which Mr. Holls
made a reservation in the Comite cCExamen, and
which was afterward carefully formulated, is for
the United States of America by no means the least



270 THE I'EACE CONEERENCE AT THE HAGUE

Chapter V important part of the entire convention, and reads
as follows : —

Text of the " Notliinrj contciinecl in this Convention shall be so
Declaration, constvued CIS to require the United States of America
to depart from its traditional jyolicy of not entering
upon, interfering ivith, or entangling itself in the
political questions or internal ad'}ninistimtion of any
foreign state, nor shall anything contained in the said
Convention he so construed as to require the relinquish-
ment, hy the United States of America, of its traditional
attitude toward purely American questions .''

The Mon-oe The adoption of the treaty without any qualifica-
Doctrme. ^-^^^ ^£ ^j,|-j(.|g ^7, would undouhtcdly have meant,

on the part of the United States, a complete
abandonment of its time-honored policy known orig-
inally as the Monroe Doctrine. This is not the
place to discuss the merits of that policy, or the truth
and wisdom of that doctrine. It is, however, a fact
that the United States of America is determined more
firmly than ever before in its history, to maintain this
policy and the Monroe Doctrine, in its later approved
and extended form, carefully and energetically. Not
even in the supposed interest of universal peace would
the American people have sanctioned for one moment
an abandonment or the slightest infraction of a policy
Avhich appeals to them as being founded, not only
upon legitimate national desires and requirements,
but upon the highest interests of peace and progress
throughout the world. To recognize the American
Continents as proper objects of any kind of European



THE ARBITRATION TREATY L'71

expansion, or interference on the part of one or more chapter v



Online LibraryFrederick William HollsThe peace conference at The Hague, and its bearings on international law and policy → online text (page 19 of 39)