Frederick William Holls.

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

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the proposition of Professor Zorn, Chevalier Des-
camps declaring that the required statement might
be made so short as to be entirely unobjection-

Article 53. The award shall be read in a public
sitting of the Tribunal, the agents and counsel of
the litigants being present or having been duly

Article o4. The award duly pronounced and
notified to the agents of the parties in litigation
shall decide the dispute finally and without appeal.

Article 55. The parties may reserve in the agree-
ment of arbitration the right to demand a rehearing
of the case. In this case, and in the absence of any
stipulation to the contrary, the demand shall be
addressed to the Tribunal w^iich has pronounced the
judgment ; but it shall be based only on the discovery
of new facts, of such a character as to exercise a
decisive influence upon the judgment, and which at
the time of the judgment were unknown to the Tri-
bunal itself and. to the parties demanding the rehear-
ing. The proceedings for a rehearing can only be
begun by a decision of the Tribunal, stating expressly
the existence of the new fact and recognizino- that it
possesses the character described in the preceding
paragraph, and declaring that the demand is admis-
sible on that ground. The agreement of arbitration
shall determine the time within which the demand
for a rehearinu- shall be made.

The American Plan for an international tribunal
contained the following paragraph : —


"Every litigant before the international tribunal chapter v
shall have tlie right to make an appeal for reexam-
ination of a case within three months after notifica-
tion of the decision, upon presentation of evidence
that the judgment contained a substantial error of
fact or of law."

When this article was offered as an amendment Debate on
in the Comite cV Examen it was vigorously opposed ^^ "^^""s-
by M. de Martens of Russia, who thought that
any provision looking toward a second hearing
would diminish the moral authority of the tribunal
and the w^eight otherwise given to its first decisions.
He therefore demanded a preliminary vote upon the
question of the principle of a rehearing in any case.
The Committee decided in favor of the principle, by
the votes of Holland, Germany, Austria, Italy, Great
Britain, and the United States, against those of
Switzerland, Belgium, and Russia. Accordingly an
article substantially embodying the American view
was reported to the full Committee on Arbitration.
M. Asser of Holland, in the general Committee,
on July 17, offered the article as it now stands
as a substitute for the American proposition. A
summary of the speeches made for and against the
proposition will suffice, for all practical purposes, as
a commentary, and it is therefore subjoined.

M. de Martens spoke as follows : " During the Speech of
entire course of the Conference you have always J^^^'^ ^^'^'"'
honored me w'itli a most respectful attention, wdien-
ever 1 deemed it necessary to intervene in the dis-
cussion, for the purpose of dissenting or explaining


de Martens.

Chapter V tliG icleas wliicli liavG been put upon the programme
Speech of M. on tliG part of Russia. I thank you most sincerely.
" Permit me once more at this time to count upon
sucli good will, and I beg your most serious atten-
tion, because the question which now occupies us is
one of the very greatest importance. It is a vital
question for the entire institution of international
arbitration, which is certainly dear to all of our
hearts. The honorable delegate from the United
States, Mr. Holls, and my friend, M, Asser, have
said that it is necessary to save the principle of a
rehearing of arbitral award. I regret infinitely not
to be able to share this opinion. I am a member of
the society for the relief of the shipwrecked and of
the Red Cross society, but in this present case I
deem it my duty to be cruel and inhuman. I can-
not possibly hold out my hands for the saving of
Article 55, and I wish from the bottom of my
heart that it shall be shipwrecked even on these
hospitable shores of Holland.

" But, gentlemen, in what does the importance
of this question consist ? Is it true that a re-
hearing of a judicial award based upon error or
upon considerations not suffi.ciently founded is not
desirable ? Ought we not, on the contrary, to desire
that an error should be eliminated by new documents
or new facts which may be discovered after the close
of the arbitration ? No, gentlemen, it would be ab-
solutely wrong and unfortunate to have an arbitral
sentence duly pronounced by an international tri-
bunal subject to being reversed b}^ a new judgment.


It would be most profoundly regrettable if the arbitral Chapter v
award did not terminate, finall}^ and forever, the
conflict between the litigating nations, but should
provoke new dissensions, inflame the passions anew,
and menace once more the peace of the world. A
rehearing of the arbitral award as provided for in
Article 55 must necessarily have such a disastrous
effect. There should not on this point be left the slight-
est doubt. The litigating Power against which the
arbitral award has been pronounced will not execute it,
certainly not during three months, and it will make
all imaginable efforts to find new facts or documents.
The litigation will not have been ended, but it will
be left in suspense for three months with this serious
aggravation, that the Government and the nation
which have been found to be culpable will once more
be put upon the plane of recrimination and of recip-
rocal dangerous accusation. This is the explanation
which makes it very significant that in this Comite
d'Examen Article 55 received five votes against four.
" The end of arbitration is to terminate the con-
troversy absolutely. The great utility of arbitra-
tion is in the fact that from the moment when the
arbitral judgment is duly pronounced everything is
finished, and nothing but bad faith can attack it.
Never can an objection be raised against the execu-
tion of an arbitral sentence. Now, if we accept the
principle of a rehearing, what will be the role of the
arbitrators before and after the sentence ? Actually
they will enjoy the greatest moral authority, because
they have the possibility of ending forever an inter-


cimpterv national coiiflict, and experience has shown that on
Speech of M. the nioming after the award, journals, legislative
de Martens, (.i^j^i-j^j^ej-g^ public opinion — everj one bows in silence
to the decision of the arbitrators. If, on the contrary,
it is known that the sentence is suspended for three
months, the State against which judgment has been
given will do its utmost to find a document or a new
fact. During this time the judgment will be deliv-
ered over to the debate of public opinion. It will
not finish or cut off anything. On the contrary, it
w^ill raise a tempest in the press and in the parlia-
ments. Everything will be attacked — tlie arbitrators,
the hostile government, and, above all, the home
government. They will be accused of having held
back documents and concealed new facts. For three
months the discussion upon the judgment will be
open. Never can a judgment given on such condi-
tions have the moral obligatory force which is the
very essence of arbitration. On the other hand, the
arbitrators will not have the same sentiment of
responsibility as when by one word they are able to
detennine a controversy between two nations. This
idea of a rehearing is the saddest blow which could
be struck against the idea of arbitration. Apropos
of my first remarks at the beginning of these sessions
I apply to myself the words, ' dixi et salvavi animam
meam.' I now change them and I say, ' dixi et
salvavi arhitrationem.' "
Reply of Count Nigra remarked that the Committee was in

Count Nigra. ^|^^ preseucc of two opinions, both of which were too
radical. There was a great deal of truth in the


arguments of M. de Martens; but errors always hap- chapter v
pen, and if it is truly an error, evident to the eyes of
the public, why should it be held necessary to conse-
€rate it? Wln^ not revise it? On the other hand,
the wording of Article 55 seemed to him to be too
unlimited. The expression " new^ facts exercising a
decisive influence" did not seem to him sufficiently
precise or definite to limit the cases of a rehearing.
The instructions of the Italian Government directed
him to pronounce himself in favor of a rehearing. If
the principle of a rehearing is maintained, it seemed
to him preferable to adopt the text of the treaty of
arbitration between Italy and the Argentine Repub-
lic, which limits the reasons for a rehearing to facts
regarding the case in litigation in the following two
cases : First, if the judgment w^as pronounced on the
basis of a forged or erroneous document ; second, if
the judgment, wholly or partly, is the consequence
of a positive or negative error of fact resulting from
the acts or documents in the case.

Mr. Holls spoke as follows : —

" I cannot forbear to express, at the outset, the Reply of Mr.
g:reat reluctance and hesitation with which I find
myself in disagreement, on a question of such great
importance, with the gentleman who may perhaps be
called the most eminent representative in the entire
world, of the idea of arbitration, the President of the
one tribunal of arbitration which is sitting at present,
our most honorable colleague from Russia, M. de
Martens. If there were in my mind the slightest
doubt as to the soundness of the proposition which is


Chapter V at present before us, I would be inclined to dismiss
KepiyofMr. all furtlicr Consideration and assent to the opinion of
an authority so eminent, especially when that opin-
ion is expressed with so much force and eloquence.
But all of my hesitation does not prevent me from
expressing my very great surprise at the arguments
of which M. de Martens has just made use. In
effect, they show to my mind that he has completely
misunderstood the proposition which has been in-
serted at the request of the United States of
America into the code of arbitral procedure. I
agree most emphatically with all that M. de
Martens has said about the necessity of putting a
definite end to international litigation. In differ-
ences between States, the maxim ' mteresse j)opuli ut
sit finis litium ' is even more true than in those
between individuals. The supreme end of arbitra-
tion is, as M. de Martens said, to settle definitely the
questions upon which recourse has been had, and
everything which unreasonably retards the decision
or leaves it in suspense will be objected to, most
decidedly, by the delegates of the United States as
well as by him.

" Moreover, Mr. President, our proposition for a re-
hearing is by no means based upon a fantastic idea,
as though it were possible to evade or correct all the
errors which must occasionally slip into arbitral
decisions. We by no means ignore the fact that
error is and always will be an inherent element in
every human institution or decision.

" Our point of view is eminently practical, and this


is the theory upon which the Article proposed by Chapter v
us reposes. It is above all extremely desirable and
even necessary that the project of arbitration which
this Conference is about to propose to the world
should provide for the possibility of rectifying evi-
dent errors, in a regular and legal manner, without in-
curring the danger of having the decision repudiated
by the aggrieved party.

" Permit me to say at this point that the importance
of our Article does by no means solely repose upon its
practical effect in each case, but perhaps even more
in the circumstance that it will constitute an impor-
tant feature of the general project of arbitration which
is being elaborated by the Conference. Everything
which we are creating here has a general, voluntary,
and facultative character. We are not occupied at
the present time with rules for any particular differ-
ence whatever. It will soon be the duty of the
members of this Conference to appear before their
different peoples and explain to them the projects
which we have elaborated with so much labor and
so much care. According to the view of the Ameri-
can Delegation, this project will contain a fatal
omission if it does not provide any method whatever
for dealing with an evident error. For we may be
sure that if this Article shall not be adopted, and a
manifest error shall hereafter be discovered, the
aggrieved party which loses its case will not accept
the decision with good grace, even if it may yield to
force. There is a limit to the principle established
by M. de Martens, that the chief end of arbitration



chaptorv is to Settle forever the questions about wliicli it has
Reply of Mr. been invoked. That limit has well been declared by
our American statesman, Abraham Lincoln, in his
celebrated saying, ' Nothing is settled until it is
settled right.' Our Article seems to find a golden
mean between two extreme dangers, that of perpetu-
ating an injustice, and that of leaving a difference
unsettled. The objection has been raised that the
new fact might be discovered one day after the expi-
ration of the term fixed in this Article. But this
possibility is an inconvenience which exists always
when an arbitrary term is fixed for any end whatever,
and it will exist in equal measure if we adopt a
period of six months in place of three. The theory
upon which our Article is based, so far as this point
is concerned, is that immediately after the rendering
of the decision it is subjected to criticisms and inves-
tigations of the most minute character, and then, if
ever, is the opportunity for discovering new facts or
important errors.

'• It may well be, as M. de Martens has said, that
the criticism to which the arbitral decision will Ije
subjected in this manner will take the character of
an attack, and may cause discussion in the journals
and pamphlets in a form most undesirable. But, on
the other hand, it is also true that the decision will
be examined most minutely by all the experts of in-
ternational law in the entire world, and by all of
those who, on account of their public or private posi-
tion, have followed the proceedings of the litigation
and who are interested in it and in its result. This


is the best guarantee possible for the discovery of any chapter v
hidden fact which might have the effect of correcting
an error, or of making reparation for an injustice.
New facts cannot be forged nor manufactured, at
least not by civilized Governments. In fact, every
Government will hesitate to expose its country to the
humiliation which would undoubtedly attach to an
unsuccessful attempt for a rehearing of the litigation
upon a pretended discovery of new facts, the existence
of which would be denied by the tribunal. More-
over, one should not lose sight of the fact that for
the purpose of having a rehearing, the very tribunal,
composed of the same judges who have pronounced the
award, must declare that a manifest error has been
committed. This is saying, in other words, that the
new fact which has been discovered is of a nature to
have influenced the decision of the tribunal. Before
the decision has been rendered it is not always possi-
ble to know what species of fact or wdiat argumenta-
tion has made the greatest impression upon the judges
and has determined their decision.

" Take, for example, the question in controversy at
this moment before the Court of Arbitration of which
our honorable colleague from Russia is acting so
worthily as president — the question of the frontier
between British Guiana and Venezuela. In this case
the delay of three or six months could not be truly
called anything but minimal, in view of the fact that
this difference has existed and Q:one on for three or
four years, and, in a form more or less obscure, for
more than eighty years. It would therefore be un-



Chapter V important whether the decision should be rendered
Reply of Mr. on the first of October or the first of January, by
comparison with the danger arising from a mani-
festly erroneous or unjust decision. Among other
things this controversy implies the interpretation of
treaties made more than two hundred and fifty years
ago ; it includes a great number of historical prece-
dents, of questions about colonization, of jurisdiction
over barbarous tribes, as well as questions of the weight
and authority to be given to different maps. Upon
these latter both parties will lay great stress, in order
to prove that their contentions have already been
recognized and admitted. Up to the moment of the
decision of the tribunal it will be impossible to know
what kind of facts and what argumentation have de-
termined the award. Now the seeking;: of new facts
is limited to that category. If that inquiry should
be successful, for example, if a new map or a new
document of incontestable and unquestioned author-
ity should be found, it is evident that the inter-
ested party would refuse to submit to an award
which could not be rectified in a legal and regular

I confess that I was greatly astonished to hear M.
de Martens say that the moral authority of the
Court of Arbitration w^ould be impaired by our
Article, and that the sentiment of responsibility
would disappear in the minds of the arbitrators. On
the contrary, I maintain that the moral authority of
the judgment will be enhanced by the fact that there
is in existence a provision for correcting errors, of


which the losing pcarty may take advantage, during a chapter v
term which should not be too long, and that at the end
of that term the civilized world ought to admit, and
surely will admit, that substantial justice has been
done between the two parties. Furthermore, the re-
sponsibility of the arbitrators is enhanced rather than
diminished by their power and their duty to recon-
vene again upon their own judgment in a proper case.
It seems to me that M. de Martens most assuredly
made a mistake in saying that tradition and the
force of precedent is opposed to a rehearing in cases
of arbitration. I must admit that in all the treaties
of arbitration for special cases up to this time, there
has not been a provision for a rehearing, and in the
particular special treaties of the futiu^e there will no
longer be any necessity for it. The reason for this
is that the entire idea of arbitration is relatively new,
and that it has hitherto been considered only as a
temporary method of settling controversies as they
arose. The only general treaty of arbitration which
has been ratified, and which is to-day in force, is that
concluded between the Kingdom of Italy and the
Argentine Republic. This provides for a rehearing,
showing the tendency of public opinion and also
of the most competent opinion of experts in inter-
national law.

" But, as I have already said, our duty in this Con-
ference is not to legislate for particular cases, but to
uphold an ideal, to declare to the world that w^hich
the representatives of all the civilized nations con-
sider desirable and practically attainable. We can-

2!)8 Till-: PEACE CONEERENCE AT 'I'llh: ll.\(;rE

Chapter V

Speech of

not possibly put professional regularity or pedantic
rules of procedure above the attainment of substan-
tial justice. We have succeeded, after much labor
and by reason of nuitual concessions, in elaborating
a project for the peacea1)le settlement of interna-
tional conflicts. It is of the last importance that
this project should contain, however simply, at least
all essential features guaranteeing in the greatest
possible measure international justice.

" The representatives of the United States of
America considering this Article, or some other
provision equally efficacious to rectify manifest
errors, as an essential part of an acceptable project,
would have to ask for new instructions from their
Government, giving them power to join their col-
leagues of the Conference in any plan which should
not contain a similar provision. It is for this reason
that they make a most warm and urgent appeal to
the Committee to leave intact the principle expressed
in the Article proposed in the name of the Govern-
ment of the United States."

Chevalier Descamps said that he had listened with
great attention to the two arguments upon the sub-
ject of a rehearing. That which, according to his
idea, constituted the difficulty of the subject was the
conflict of two principles, equally just, which either
side had put forth. It was right that justice should
be done ; therefore, how was it possible to accept the
establishment of an evident error ? It was also right
that controversies between nations should not be
allowed to so on indefinitelv. How could this result


be attained and still leave open the door for a new Chapter v
judgment ?

The defenders of the rehearing, according to him,
had the side which was the more noble and beauti-
ful. Their ideal of justice was perhaps somewhat
higher than that of their adversaries, but these again
are struck by the fallibility of all human justice, and
believe that for the redressing of exceptional errors
it was not right to compromise the force and stabil-
ity of the judicial system. Was it not to be feared
that solicitude for a few very rare cases might en-
danger the entire principle ?

The partisans of a rehearing, according to him,
did not put the question of a rehearing in its proper
position. In general rules for all controversies of all
States, was it right to formulate a principle at the
risk of impairing the entire institution of arbitration?
It seemed to him more natural to put into an inter-
national code nothing but principles which should
consolidate the institution. Contracting parties who
are impressed from the point of view of justice, with
scruples like those of the United States, should fore-
see the case and provide for a rehearing in a special
agreement. To have no rehearing was more in con-
formance with the efficiency of arbitration, so that
this should Ijc the rule, and a rehearing the excep-
tion. We should be doing a poor service to the
Governments in permitting a rehearing as the general
rule. The Governments would risk being no longer
their own masters, they would be forced and every
one would try to have them invent new facts to



Chapter V

Reply of M.
de Martens.

begin an unsuccessful arbitral litigation over again.
M. Descamps, therefore, thought it was dangerous and
difficult to introduce a provision like Article 55 into
a general code of arbitral procedure. He hoped that
even the form which was proposed by M. Asser would
not be admitted, for he was formally opposed to the
principle. At the same time, for the sake of making
a unanimous decision, he would join in supporting
the proposition of M. Asser in a spirit of conciliation.
M. de Martens wished to ask some questions.
What -would ])e the position of the arbitrators dur-
ing the delay of suspension of three or six months ?
If the Government which had not gained its cause
was impelled and forced by public opinion to try to
find a new fact in order to begin the procedure over
again, where would it find arljitrators ? The mem-
bers of the arbitral triljunal will l)e dispersed ; they
may be absent, ill, or dead. What should be done
then ? It was necessary to distinguish clearly two
points of view. From the point of view of the law-
yer it was not doubtful that one ought to provide
for a rehearing and even an appeal. But from the
point of view of the practical man, it is the love of
peace which is the most important. In order to save
that, it was necessary to cut short all controversies
by a radical means. The pacification of the two liti-
gating peoples was a result so important, in the eyes
of the lover of peace, that he would not wish to
risk compromising or impairing it in order to pro-
tect some material interest, which might possibly be


This last point of view seemed to bini the most chapter v

Online LibraryFrederick William HollsThe peace conference at The Hague, and its bearings on international law and policy → online text (page 21 of 39)