Frederick William Holls.

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

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Powers, would not promote or increase the peace,
prosperity, or happiness of a single human being;
and assuming, in ever so small a degree, the re-
sponsibility for the status of so large a part of the
earth's surface, it is only fair that the great peace
power of the West should not be required to interfere
against its will in any other quarrel. Nor is any meri-
torious interest m the w^orld unfavorably affected by
this attitude of the United States — an attitude as-
sumed and maintained, not as a challenge, not boast-
fully toward Europe, nor patronizingly toward its
sister States on the American Continent, but simply
in pursuance of a wise and far-seeing recognition of
obvious facts and their logi;ical bearino;s.

The declaration was presented in the full session tuo deciara-
of the Conference on July 25, read by the Secre- ^^"^ ^^^^"^ ^
tary of the Conference, and unanimously directed to
be spread upon the minutes, and added to the Con-
vention by a reference opposite the signatures of the
American plenipotentiaries.

The importance of this proceeding, so far as theitsimpor-
United States of America is concerned, will readily
be seen. Never before that day had the Monroe
Doctrine been officially communicated to the repre-
sentatives of all the great Powers, and never before
was it received with all the consent implied by a
cordial acquiescence, and the immediate and unani-
mous adoption of the treaty upon that condition.
An express acceptance or recognition w^as, of course,-
impossible, but there can be no doubt that the decla-



272 THE PEACE CONFERENCE AT THE HAGUE



Chapter V



Cordial
welcome to
the United
States.



ration, as presented, constitutes a binding notice
upon every Power represented at the Conference,
forever estopping each one of them from thereafter
quoting the treaty to the United States Government
in a sense contrary to the declaration itself. The
greatest advantage of the latter, however, is the
fact that it leaves to the United States absolute and
perfect freedom of action, and this, in view of the
recent extension of American power, especiall}' in
the far East, is of incalculable importance.

Whatever may be the view of certain critics in
America, there can be no doubt that the repre-
sentatives of Europe at The Hague were impressed
with the spectacle of the great Republic of the West,
crowned with the prestige of a recent brilliantly suc-
cessful war, proclaiming itself, nevertheless, in the
most solemn manner possible, a member of the family
of civilized States, — abandoning its time-honored but
inadequate policy of selfish isolation, and, without
departing in the least from the true ideals of Wash-
ington and Monroe, still cooperating cordially with
European and Asiatic nations for the highest objects
of human endeavor. Nor did any of them, it may
safely be assumed, agree with the curious and pre-
posterous contention that the consequences of the
Spanish-American War, especially in the far East,
had in the slightest degree impaired the value or
force of the Monroe Doctrine. It was with particu-
lar pleasure that the United States, having safe-
guarded the principal interests committed to it, by
this declaration, cooperated most cordially and unre-



THE ARBITRATIOX TREATY 2Ti

servedly with the delegation from the great Republic dapterv
of Europe, in impressing the idea of the duty of joint
efforts for peace on the part of all civilized nations,
into the international law of the future.

The representatives of the Balkan States, notably Efforts to

. 1 -r» • T I'c Strike out the

oi bervia and Koumania, made strenuous enorts to word " duty."
omit the word " duty," and their repeated reference
to the distinctions between great and small Powers
gave occasion for a spirited reply from Professor Zorn
of Germany, in which the cordial adherence of the
German Empire to the Convention as reported by
the Committee was most forcibly and unreservedly
declared, and later on for a speech from M. Bour-
geois, which ended with an outburst of eloquence
which electrified the Conference and led to a with-
drawal of all hostile motions : —

" The moral duty," said M. Bourgeois,'' of the pro- Speech of m.
visions of Article 21 is to be found entirely in the
fact that a common duty for the maintenance of
peace among men is recognized and affirmed among
the nations. Do you believe that it is a small matter
that in this Conference — not in an assembly of theo-
rists and philosophers, debating freely and entirely
upon their own responsibility, but in an assembly
where the Governments of nearly all the civilized
nations are officially represented — the existence of
this international duty has been proclaimed, and that
the idea of this duty, henceforth introduced forever
into the conscience of the people, is imposed for the
future upon the acts of the Governments and of the
nations ? My colleagues who oppose this Article



274 TIIK PEACE CONEERENCE AT THE 11 ACHE

Chapter V will, I liopc, permit me to say this : I fear their
Speech of M, eves are not fixed on what should be their real pur-

Bourijeois. t i • • c i • • i i

pose. In this question oi arbitration they appeared
to be concerned with the conflicting mte rests of the
great and small Powers. 1 say, wdtli Count Nigra,
here there are no great, no small Powers ; all are
equal in view of the task to be accomplished. But
should our worl<: give greater advantages to any
Powers, would it not assuredly be to the weakest?

" Yesterday, in the Comlte d'Examen, I spoke in
the same strain to my opposing colleagues. Is not
every establishment of a tribunal, every triumph of
an impartial and well-considered decision over war-
ing interests and passions, one more safeguard for
the weak against the abuses of power ?

" Gentlemen, what is now the rule among indi-
vidual men will hereafter obtain among nations.
Such international Institutions as these will be the
protection of the weak against the powerful. In the
conflicts of brute force, where fighters of flesh and
with steel are in line, we may speak of great Powers
and small, of weak and of mighty. When swords
are thrown in the balance, one side may easily out-
weigh the other. Bat in the weighing of rights and
ideas disparity ceases, and the rights of the smallest
and the weakest Powers count as much in the scales
as those of the mightiest.

" This conviction has guided our work, and
throughout its pursuit our constant thought has
been for the weak. May they at least understand
our idea, and justify our hopes, by joining in the



ARBTTRATION TREATY 275

effort to bring the future of Humanity under tlie chapter v
majesty of the Law."



trative
counci!.



Article 28. A permanent administrative Coun-Thcadminis-
cil composed of the diijlomatic representatives of
the Signatory Powers accredited to The Hague, and
of the Netherlands Minister of Foreign Affairs, who
shall act as President, shall be constituted in that
city as soon as possible after the ratification of the
present Act by at least nine Powers. This Council
shall be charged with the establishment and organi-
zation of the International Bureau, which shall
remain under its direction and control. It shall
notify the Powers of the Constitution of the Court
and provide for its installation. It shall make its
own by-laws and all other necessary regulations. It
shall decide all questions of administration which may
arise with regard to the operations of the Court. It
shall have entire control over the appointment, sus-
pension, or dismissal of officials and employees of the
Bureau. It shall determine their allowances and
salaries, and control the general expenditure. At
meetings duly summoned live members shall consti-
tute a quorum. All decisions shall be made by a
majority of votes. The Council shall communicate
to each Signatory Powder without delay the by-laws
and regulations adopted by it. It shall furnish them
with a signed report of the proceedings of the Court,
the working of the administration, and the expenses.

This Article as originally reported by the Commit-
tee restricted the membership of the administrative
council to diplomatic representatives "residing"' at
The Hague. Upon motion of Baron de Bildt on
behalf of Sweden and Norway, this was changed to



27() rilE PEACE CONFERENCE AT THE HAGUE

Chapter V "accredited to The Hague." It was found that
quite a number of Powers accredited one minister to
various other Powers besides Holland, and such rep-
resentatives, of course, had no permanent residence
at The Hague. It was recognized, however, that all
Powers who share in the expense of the Court should
be represented, if they chose, in the administrative
council.

Provision for ARTICLE 29. The cxpcnses of the Bureau shall be
o'rthe^^"^'^^ borne by the Signatory Powers in the proportion es-
Bureau. tabUshcd for the international bureau of the Inter-
national Postal Union.

According to the rules of the international postal
union the Signatory Powers are grouped in classes
according to their size and presumptive wealth, and
each class divides among its members equally the
burden of bearing a fixed proportion of the total
charges. This method has worked equitably and
without objection, and was therefore indicated as the
most practical rule to follow with reference to the
Court of Arbitration. The expense of each partic-
ular litigation is regulated in Article 57.

Cliai:>ter III. On Arbitral Procedm^e

The remaining Articles of this Convention form a
simple Code of Procedure for use in all cases, where
the parties themselves do not provide rules of their
own, for the particular case to be submitted. The
desirability of such a code has been hitherto recog-
nized in almost every case of international arbitra-



THE ARBITRATION TREATY 277

tion. The basis for the present provisions was a chapter v
most admirable system of rules of procedure adopted
by the tribunal which decided the question of the
true boundary line between Venezuela and British
Guiana. These rules were understood to be the joint
production of the distinguished President of that
trijjunal, ]\[. de Martens of Russia, and of Mr. Justice
Brewer of the United States Supreme Court, and
Lord Justice Collins of the English High Court of
Judicature.

Article 30. With a view to encouraging the Rules,
development of arbitration the Signatory Powers
have agreed on the following rules, which shall be
applicable to the arbitral procedure unless the parties
have agreed upon different regulations.

Article 31. The Powers which resort to arbitr a- Agreement to
tion shall sign a special act {co^njyrorms) in which ^^'^'*^''**^'
the subject of the difference shall be precisely defined,
as well as the extent of the Powers of the arbitrators.
This act implies an agreement by each party to sub-
mit in good faith to the award.

The importance of the manner of stating the ques-
tion to be submitted has l^een fully discussed in the
Commentary to Article 16.

Article 32. The duties of arbitrator may be con- Manner of
ferred upon one arbitrator alone, or upon several Jj""^^^!,*,"^'^^^^^^
arbitrators selected by the parties, as they please, or tribunal,
chosen by them from the members of the Permanent
Court of Arbitration established by the present act.
Failing the constitution of the Tribunal by direct



278 THE PEACE CONFERENCE AT THE HAGUE

(Chapter V agreeiiioiit l)etween the parties, it shall be formed in
the following manner : —

Each jmrty shall appoint two arbitrators and these
shall together choose an umpire. In case of an
equal division of votes tlie choice of the umpire shall
be intrusted to a third Power tO be selected by the
parties by common accord. If no agreement is
arrived at on this point, each party shall select a
different Powder, and the choice of the umpire shall
be made by agreement between the Powers thus
selected.

Sovereign ARTICLE 33. When a Sovereign or Chief of State

stivte Ti! fix shall be chosen for an arbitrator, the arbitral proced-
procedure. urc sliall bc determined by him.

The umpire to ARTICLE 34. The Umpire shall preside over the
preside. Tribunal ; when the Tribunal does not include an
umpire, it shall appoint its own presiding officer.

The Committee recognized the great importance of
having an uneven number of arbitrators wherever
possible. At the same time tribunals with an even
number may sometimes be preferred, as in the case
where such a tribunal was expressly provided for,
under Article 6 of the proposed treaty of arbitration
between Great Britain and the United States.

Howvacan- ARTICLE 35. In case of the death, resignation, or
cies are to be r^i^ggj^^^g^ f^^ au}^ causc, of ouc of the arbitrators, the

place shall be filled in the manner provided for his

appointment.

The original Code of procedure submitted by the
Russian Government provided that in case of the
death or resignation of an arbitrator, the entire



tilled.



THE ARBITRATION TREATY 279

agreement for arbitrcation should be considered void. Chapter v
This would seem to be more in accord with the i^rin-
ciple previously laid down, requiring the assent of
both litigants to the appointment of every member
of the Court. After careful discussion ^ the Commit-
tee, however, decided that the Article as it stands
contains the safest general rule for such a contin-
gency, and that it w^ould be better for the parties to
understand that in the aljsence of a contrary stipula-
tion, the same autliority, appointing an arbitrator,
might be called upon in, a jDrojoer case to fill the
vacancy.

Article 36. The parties shall designate the place piace of
where the Tribunal is to sit. Failing- such a desig-na- ®'"^°^'
tion, the Tribunal shall sit at The Hague. The place
of session thus determined shall not, except in the
case of overwhelming necessity, be changed by the
Tribunal without the consent of the parties.

Article 37. The parties shall have the right to Appointment
appoint agents or attorneys to represent them l3efore .^le^,"s™n?'
the Tribunal and to serve as intermediaries between couuseiors.
them and it.

They are also authorized to employ for the defence
of their rights and interests before the Tribunal coun-
selors or solicitors named by them for that purpose.

There is no doul)t that the practice before the
international court of arbitration will attract to its
bar the chief international jurists of every signatory
power. The question whether any person enrolled
as a member of the Court should be permitted to

^ For which, see 4 Official Record I-il.



28U THE PEACE CONFERENCE AT THE HAGUE

Chapter V practice before it was raised by Mr. Low of the
Judges not to American Delegation, and was referred by the Third
cenaiiTcases. Committee to the Comite cVExamen for consideration
and report. This Committee unanimously agreed to
recommend that no member of a particular bench
should be permitted, during the exercise of such
function, to appear before another bench, on another
case, in the capacity of counsel. The English rule
of "once a judge always a judge," suggested by
Lord Pauncefote, seemed to the Committee to be
too drastic. Mr. Holls of the United States sug-
gested that the rule be made so as to prohibit a
member of the Court from appearing as counsel for
any country except the country of which he was a
citizen or by which he was appointed. This view
received the weighty indorsement of Professor Lam-
masch of Austria, but the Committee finally decided
upon having it merely spread upon the record in the
2Jroces verbal, and permitting the question as a whole
to remain in comparative uncertainty, trusting that
the good sense and propriety of the members of the
Court, as well as of its bar, would finally evolve a
rule without inconvenience, and with sufficient safe-
guards for the unsullied reputation of the bench for
disinterestedness and impartiality.

Language. ARTICLE 38. The Tribunal shall decide upon the

choice of languages used by itself, or to be author-
ized for use before it.

Two phases of ARTICLE 39. As a general rule the arbitral proced-
procedure. -^j.^ shall comprise two distinct phases — preliminary



THE ARBITRATION TREATY 281

examination and discussion. Preliminary examina- Chapter v
tion shall consist in the communication by the respec-
tive agents to the members of the Tribunal and to
the opposite party, of all printed or written acts,
and of all documents containing the arguments to be
invoked in the case. This communication shall be
made in the form and within the period lixed by the
Tribunal, in accordance with Article 49. The dis-
cussion shall consist in the oral argument before the
Tribunal. The discussion shall consist in the oral
development before the Tribunal of the argument of
the parties.

This Article in effect provides for a procedure simi-
lar to that now in existence before ordinary Ameri-
can or English appellate tribunals. The documents
in the case or the so-called " printed case on appeal "
is filed wdth the Court, and served on the opposite
side within the time limit set by the rules, and at the
proper day the oral argument is heard by the Court.



Article 40. Every document produced by one communica-
tion of

documents.



party must be communicated to the other party *'°°°*



Article 41. The discussions shall be mider the The proceed-
direction of the president. They shall be public j^^^s^^^" «p^"
only in case it shall be so decided by the Tribunal,
with the assent of the parties. They shall be re-
corded in the official minutes drawn up by the secre-
taries appointed hy the president. These official
minutes alone shall have an authentic character.

There can be no doubt that publicity will be the
rule, with reference to the proceedings of the inter-
national Court of Arbitration. At the same time,



282 THE PEACE CONFERENCE AT THE HAGUE

Chapter y exceptional cases may occur where privacy, at least
for a limited period, may be of importance.

Rules of Article 42. When the preliminary examination

practice. j^ concludcd, the Tribunal may refuse admission of

all new acts or documents, which one party may

desire to submit to it, without the consent of the

other party.

Powers of ARTICLE 43. The Tribunal may take into considera-

the Tribunal, ^j^j^ ^\\q\\ new acts or documcuts to which its atten-
tion may be drawn by the agents or counsel of the
parties. In this case the Tribunal shall have the
right to require the production of these acts or docu-
ments, but it is obliged to make them known to the
opposite party.

Article 44. The Tribunal may also require from
the agents of the party the production of all papers,
and may demand all necessary explanations. In case
of refusal the Tribunal shall take note of the fact.

In these three Articles the Tril)unal is invested with
that complete control of pleadings, practice, and pro-
cedure which now appertains to all equity courts.

No technical points or pitfalls are permitted to
exist to entrap an imwary practitioner. It will not
be possible to defeat a just claim or an equitable
defence otherwise than by a decision squarely upon
the merits of the case.

Oraiargu- Article 45. The agcnts and counsel of the par-

ments. ^-^g ^j,^ authorized to present orally to the Tribunal

all the arguments Avhich they may think exj^edient

in support of their cause.



77//'; A R lU Til . I 77r>;V TREA TV 28:i

Article 46. They shall have the right to raise Chapter v
objections and to make incidental motions. The de-objo.Mions
cisions of the Tribunal on these points shall be final, '^"'' ""'tio"s.
and shall not form the subject of any subsequent
discussion.

Article 47. The members of the Tribunal shall Questions and
have the right to put questions to the agents or ^^P^^'^'^tio^s-
counsel of the parties, and to demand explanations
from them on doubtful points. Neither the questions
put nor the remarks made by members of the Tribunal
during the discussion or argument shall be regarded
as an expression of opinion by the Tribunal in general,
or by its members in particular.

Article 48. The Tribunal is authorized to deter- Tribunal to
mine its own jurisdiction, by interpreting the agree- o^^I^^'^^'s^^jf^f.
ment of arbitration or other treaties which may betiou.
quoted in point, and by the application of the prin-
ciples of international law.

The powers herein conferred are necessary for the
proper working of arbitration, but it must be admitted
that they are liable to abuse. The penalty for any
undue enlargement of the jurisdiction of the Tribunal
must of course be foimd in the refusal of both liti-
gants to abide by the decision, as was done in 1841
in the case of Great Britain and the United States,
when the king of Holland, who had been appointed
arbitrator for the northeastern boundary, exceeded
his powers in drawing a boundary line which satis-
fied neither party. ^ With tribunals as sensitive to
their own reputations as those of the permanent

11 Moore, Arbitration^ p. 1;37.



284 THE PEACE CONFERENCE AT THE HAGUE

Chapter Y Court are likely to be, a recurrence of similar
experiences is hardly within the limits of probability.^
When France and the Netherlands, by the treaty
of November 29, 1888, agreed to submit the ques-
tion of the true boundary between their respective
colonies of French Guiana and Surinam to the arbi-
tration of the Emperor of Russia, the latter (Alex-
ander III.) declined to act if he was required to
adopt, without modification, the boundary line pro-
posed by one party or the other. Accordingly, by
the agreement of August 28, 1890, the litigating
Powers expressly conferred upon the arbitrator the
right to fix the boundary according to his own
decisions upon the equities of the case.

Special rules ARTICLE 49. The Tribunal shall have the right to
of procedure, ^^^ke rulcs of proccdurc for the direction of the trial
to determine the form and the periods in which
parties must conclude the argument, and to prescribe
all the formalities regulating the admission of evi-
dence.

End of the ARTICLE 50. The agcuts and the counsel of the
hearing. parties liaviug presented all the arguments and evi-
dence in support of their case, the President shall
declare the hearing closed.

Deliberations ARTICLE 51. The deliberations of the Tribunal

doors'^^"^'^'^ shall take place with closed doors. Every decision

shall be made by a majority of the memlDcrs of the

1 Geffcken (Ileffter, § 109, note 5) denies the right of a Tribunal
of Arbitration to determine its own jurisdiction, but without reason.
Calvo (§ 1757) distinctly affirms it, and The Hague treaty wisely
settles the question, probably forever.



THE ARBITRATION TREATY 285

Tribunal. The refusal of any member to vote shall chapter v
be noted in the ot!i(3ial minutes.

Article 52. The award shall be made by a ma-Awanibya
iority of votes, and shall be accompanied by a state- '"■^■''""'^^' ?^°,*^
ment of the reasons upon which it is based. It by an opinion.
must be drawn up in writing and signed by each of
the members of the Tribunal. Those members who
are in the minority may, in signing, state their dis-
sent.

The requirement, on motion of Professor Zorn, Discussion on
of an "opinion," with each arbitral award, stating meut^'of
the reasons upon which it is based, was vigorously °p""°°^'
attacked in the Coniite cVExamen by M. de Martens.
He recognized the advantage of creating a body of
international Jurisprudence by means of a series of
decisions and opinions of great authority, but he
strongly objected to the idea of obligation to write,
on the part of the arbitrators. The latter w^ere not
only judges, but very often also representatives of
the governments in litigation. The prevailing opin-
ion might contain serious criticism of one of the
parties, and its representative would be constrained
to withhold a concurrence, which in the case of a
simple award might have been obtained. A decision
concurred in by the nominees of the defeated party
was more important even for the future of arbitra-
tion than the most learned or eloquent opinion.
There was nothing to prevent the judges, in proper
cases, from writing opinions, but whether they should
do so or not was surely a question which could safely
be left to their discretion. Mr. Holls warmly sup-



28G THE PEACE CONFERENCE AT THE II A CUE



Chapter V



Public read-
ing of the
award.



Final

decision.



Rehearing.



ported this view, but tlie Comite cV Examen adopted



Online LibraryFrederick William HollsThe peace conference at The Hague, and its bearings on international law and policy → online text (page 20 of 39)