Frederick William Holls.

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

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necessary and the most important, and therefore he
asked that the Committee should pronounce against
Article 55.

Mr. Seth Low spoke as follows : " In the organiza- Speech of Mr.
tion of ordinary justice in almost all the countries
represented here, if not in all, a recourse for the pur-
pose of rectifying errors has been provided. This
precaution has been taken because experience has
shown that such recourse, or rehearing, or revision
increase the chances of doing substantial justice
between men. I know that our international arbi-
tration is not like the questions of ordinary justice.
It does imply, as M. de Martens has said, the idea
of ending international controversies in the interest
of peace, even if the solution may be imperfect. But
tlie necessities of excepting in such a large measure
this imperfection is precisely the weakness, and not
tlie strength of arbitration. I recognize, as some one
has said, that all arbitration which has occurred up
to this time has been in virtue of an agreement that
has not foreseen or provided for a rehearing. But,
on the other hand, the Conference will remember
that in the only two treaties which contain a clause
for permanent arbitration — the Italian-Argentine
Treaty, to which reference has already been made,
and the Anglo-American Treaty, which was not rati-
fied — a provision was inserted for the purpose of
permitting a rehearing under certain determined
conditions. This signifies, as I suppose, that a S3^s-
tem of permanent arbitration as distinct from special



;3(»2 THE PEACE CONFERENCE AT THE HAGUE

Chapter V arbitration in isolated cases, necessarily implies the
idea of making justice just as perfect as possible, and
that this idea should be balanced with the desire of
terminating the controversy. I have conlidence and
hope that this Conference will receive and adopt the
idea of a rehearing with the necessary precaution,
for it is certain that arbitral procedure should admit
the possibility of error, if the great number of judg-
ments of arbitration are to develop in the future into
one grand system of international justice."

Remarks of M. Asscr recalled the words of one of the preced-
ing speakers, to wit : radical measures are the best.
This, he said, might be in a parliament where the
majority made the law, but in an assembly like this,
wdiich might be called an international parliament
of man, it was necessary to endeavor to find a point
of accommodation. This w^as the end and object of
his proposition. He had taken account of the rea-
sons which had been advanced on both sides. The
friends of a rehearing would have the satisfaction of
seeing an article which determined the procedure of
a rehearing, and which recognized it as a practical
method, and recommended it to all States. The
opponents of rehearing would also be satisfied by the
exclusion of the provision unless there is a special
agreement in the arbitration agreement on the subject.
If the latter contains nothing on the subject, then the
arbitral judgment and award will be irrevocable.

Adoption of M. Asser's proposition was then adopted unani-

tioi/."^"^"^'" mously, both the United States and Russia acqui-
escing most cordially.



THE AIUUTRAT/ON TREATY 303

This debate has been inserted here not only on Chapter v
account of the light which it throws n})on the Article,
but also as a very fair sample of the kind of debate An example
which took place throughout the entire Conference, "
in the Committee. Most unfortunately, and yet for
obvious reasons, a full stenographic report was a])so-
lutely impossible. It must be adniitted that the
decision of the Conference in adopting the Article as
it stands was the wisest possible solution of a ques-
tion which, as the debate showed, was by no means
free from difficulties.

Article 50. The award shall be obligatory only joinder c.f
upon the parties who have concluded the arbitration °^'^?,''V"-^*''"^

-rT7i , . . -. , . in the litiga-

agreement. VVlien tliere is a question ot the inter- tion.
pretation of an agreement entered into by other
Powers besides the parties in litigation, the parties
to the dispute shall notify the other Powers which
have signed the agreement, of the special agreement
which they have concluded. Each one of these
Powers shall have the right to take part in the pro-
ceedings. If one or more among them avail them-
selves of this permission, the interpretation in the
judgment becomes obligatory upon them also.

Article 57. Each party shall bear its own ex- Expenses,
penses and an equal part of the expenses of the
tribunal.

The term '' expenses of the tribunal " is here
understood to include the pay of the arbitrators
themselves. There are other expenses which can
only be determined in each case by the tribunal
itself. In others again the administrative council at



304 THE PEACE CONEERENCE AT THE HAGUE

Chapter V The Ilaguo may adopt, if necessary, a tariff and all
parties will be bound thereby.

Ratification. ARTICLE 58. The present convention shall be rati-
fied with as little delay as possible. The ratifica-
tions shall be deposited at The Hague. An ofhcial
report of each ratification shall be made, a certified
copy of wdiich shall be sent through diplomatic
channels to all the Powers re resented in the Peace
Conference at The Hao^ue.

Adiierence by ARTICLE 59. The Powcrs wliicli wcrc represented
rem-esented ^^ ^^^^ International Peace Conference but which
attheCou- liavc uot signed this convention may become parties
terence. ^^ -^^ ^^^ ^j^^^ purposc they will make known to

the Contracting Powers their adherence by means of
a written notification addressed to all the other Con-
tracting: Powers.



'&



Adherence by ARTICLE 60. TllC COuditioUS Uudcr wllich PoWCrS

other Po^vers. ^^^ represented in the International Peace Confer-
ence may become adherents to the present conven-
tion shall be determined hereafter by agreement
between the Contracting Powers.

This Article gave rise to serious and at times spir-
ited debate in the Committee on the Final Act, to
which reference will be made hereafter.

As the Article stands, the unanimous assent of
all the signatory Powers is necessary, either to the
adhesion of any non-signatory Power or to the mak-
ing of an agreement regarding all non-signatory
Powers and their future adherence.

Withdrawal. ARTICLE 61. If One of the High Contracting Par-
ties shall give notice of a determination to withdraw



THE ARBITRATION TREATY 305

from the present convention, this notification shall chapter v
have its effect only after it has been made in writing
to the Government of The Netherlands and com-
municated by it immediately to all the other Con-
tracting Powers. This notification sliall have no
effect except for the Power which has made it.

This treaty was signed on July 29 by the repre- signatures
sentatives of sixteen Powers; namely, Belgium, Den-tions.'
mark, Spain, the United States of America, the United
States of Mexico, France, Greece, Montenegro, the
Netherlands, Persia, Portugal, Roumania, Russia,
Siam, Sweden and Norway, and Bulgaria. It has
since been signed and ratified by all the Powers rep-
resented at the Peace Conference. The United States
Senate, on February 5, 1900, ratified it unanimously.

On September 4, 1900, the solemn deposit of the Deposit of
ratifications took place in the Netherlands Ministry
of Foreign Affairs at The Hague, and the first steps
toward the organization of the Court Avere taken.

At that time the Russian members of the Inter- First appoint-
national Court of Arbitration had been announced, court,
comprising M. de Martens, Count Mouravieff, Minis-
ter of Justice and brother of the late Minister of
Foreign Affairs who signed the call for the Con-
ference, M. Fritsch, President of the Senate, and M.
Pobyedonoszeff, Procureur-General of the Holy Synod.

It was also announced that President McKinley
had appointed Ex-Presidents Benjamin Harrison and
Grover Cleveland as two of the American members
of the Court ; the latter however declined, while the
former accepted the appointment.



CHAPTER VI

tup: immunity of private property on the
high seas

The policy TiiE Government of the United States of America

of the United ic i ,t,i ,• en

States. has lor many years advocated the exemption or all

private property, not contraband of war, from captnre
on the high seas. Considering that the chief reason
for the calling of the Peace Conference was the
burden and cruel waste of war, which nowhere
. affects innocent private persons more severely or
unjustly than in the damage done to peaceable trade
and commerce, especially at sea, the American Gov-
ernment considered that the question of exempting
private property from destruction or capture on the
high seas was evidently a most proper one for con-
sideration.^ Accordingly, the American representa-
tives were authorized to propose to the Conference
the principle of extending to strictly private property
at sea the immunity from destruction or capture by
belligerent Powers which such property already enjoys
on land, as worthy of being incorporated into the
permanent law of civilized nations.

^ A compilation of expressions of opinion on the subject on tlie
part of public men and the press in the United States, edited by
Charles Henry Butler, Esq., was printed by the Department of State
in pamphlet form, and a copy was sent to each member of the Con-
ference.

306



PRIVATE I'ROI'KirrV ON THE IIKIH SEAS :](l7

An informal inquiry, made in the early claj's of chapter vi
the Conference, soon convinced the American Com-i^ifficuitiesin

, . Ill • •11 ^^^ wav.

missioners that it would be impossible to secure
unanimity upon this question. It was even con-
tended tliat the subject itself was not germane to
the discussions, as it had not been expressly men-
tioned in the circular of Count Mouravieft" of
December 30, 1898. This contention was vigor-
ously combated hy tlie American representatives in
private discussions with other delegates, and finally
the following communication w^as addressed to the
President of the Conference : —

" June 20, 1899. Memorial of
the American

"To His Excellency, M. de Staal, Ambassador, commission,
etc., etc., President of the Peace Conference.

'^' Excellency, — In accordance with instructions from
their Government, the Delegation of the United States
desire to present to the Peace Conference, through
Your Excellency as its President, a proposal regarding
the immunity from seizure on the high, seas, in time
of war, of all private property except contraband.

" It is proper to remind Your Excellency, as well
as the Conference, that in presenting this subject we
are acting not only in obedience to instructions from
the present Government of the United States Init
also in conformity with a policy urged by our coun-
try upon the various Powers at all suitable times for
more than a century.

" In the Treaty made between the United States
and Prussia in 1785 occurs the following clause : —



308 THE PEACE COXFEREXCE AT THE HAGUE

Chapter VI " ' Tous Igs vaisseaiix marcliands et commerQants,
Memorial ()f eiiiplojees Ti I'ecliange des productions de dilferents
Commission, enduoits, ct, par consequent, destines a, faciliter et a,
repandre les necessites, les commodites et les douceurs
de la vie, passeront librement et sans etre molestes.
. . . Et les deux Puissances contractantes s'eng;ao;ent
a n'accorder aucunes commissions a des vaisseaux
assures en course, qui les autorisent Ti prendre ou a
detruire ces sortes de vaisseaux marcliands ou a in-
terrorapre le commerce.' (Art. 23.)

"In 1823 Mr. Monroe, President of the United
States, after discussing the rights and duties of
neutrals, submitted the following proposition : —

"•'Aucune des parties contractantes n'autorisera
des vaisseaux de guerre a capturer ou a detruire les
dits navires (de commerce et de transport), ni n'ac-
cordera ou ne publiera aucune commission a aucun
vaisseau de particuliers arme en course pour lui
donner le droit de saisir ou detruire les navires de
transport ou d'interrompre leur commerce.'

" In 1854 Mr. Pierce, then President, in a message
to the Congress of the United States, again made a
similar proposal.

"In 1856, at the Conference of Paris, in response
to the proposal by the greater European Powers to
abolish privateering, the Government of the United
States answered, expressing its willingness to do so,
provided that all property of private individuals not
contraband of war, on sea as already on land, should
be exempted from seizure.

" In 1858, under the administration of Mr. Bu-



PRTVATE PllOPERTY ON THE HIGH SEAS ;'.()!)

chanan, then President, a Treaty made between the Chapter vi
United States and IJolivia contemplated a later agree-
ment to relinquish the right of capturing private
property upon the higli seas.

"In 1871, in her Treaty witli Italy, the United
States again showed adhesion to the same policy.
Article 12 runs as follows : —

" ' The High Contracting Parties agree that, in
the unfortunate event of a war between them, the
private property of their respective citizens and sub-
jects, with the exception of contraband of war, shall
be exemj)t from capture or seizure, on the high seas
or elsewhere, by the armed vessels or by the military
forces of either party ; it being understood that this
exemption shall not extend to vessels and their car-
goes which may attempt to enter a port blockaded
by the naval forces of either party.'

" It may be here mentioned that various Powers
represented at this Conference have at times indi-
cated to the United States a willingness, under cer-
tain conditions, to enter into arrangements for the
exemption of private property from seizure on the
high seas.

" It ought also to be here mentioned that tlie doc-
trine of the Treaty of 1871 between Italy and the
United States had previously been asserted in the
Code of the Italian Merchant Navy as follows : —

" ' La capture et la prise des navires marchands
d'un Etat ennemi par les navires de guerre seront
abolies par voie de reciprocite a I'egard des Etats qui
adoptent la meme mesure envers la marine marchande



;U0 THE PEACE CONFERENCE AT THE HAGUE

Chapter VI italieniie. Lea reciprocite devra resulter cle lois
Memorial of loccxlcs, cle convGiitioiis cliplomatiques, on de declara-

the Anierifiui ... ., .

Commission, tioiis laitcs par 1 0111161111 avaiit le coiiiiiieiiceiueiit de
la guerre.' (Art. 211.)

" And in the correspondence with Mr. Middleton,
the Representative of the United States at the Rus-
sian Court, Count Nesselrode, so eminent in the
service of Russia, said that the Emperor sympathized
with the opinions and wishes of the United States,
and that, ' as soon as the Powers whose consent he
considers as indispensable shall have shown the same
disposition, he will not be wanting in authorizing
his ministers to discuss the different articles of an
act which will be a crown of glory to modern
diplomacy.'

" In this rapid survey of the course which the
United States have pursued during more than a
century. Your Excellency will note abundant illustra-
tion of the fact above stated — namely, that the
instructions under which we now act do not result
from the adoption of any new policy by our Govern-
ment, or from any sudden impulse of our people, but
that they are given us in continuance of a policy
adopted by the United States in the first days of its
existence and earnestly urged ever since.

" Your Excellency will also remember that this
policy has been looked upon as worthy of discussion
in connection with better provisions for international
peace, not only by eminent statesmen and diploma-
tists in the active service of various great nations,
but that it has also the approval of such eminent



PRIVATE PROPERTY ON THE HIGH SEAS 311

recent authorities in international law as Bluntschli, Chapter vi
Pierantoni, De Martens, Bernard, Masse, De Lave-
leye, Nys, Calvo, Maine, Hall, Woolsey, Field, Amos,
and many others.

" We may also recall to your attention that the
Institute of International Law has twice pronounced
in its favor.

" The proposition which we are instructed to pre-
sent may be formulated as follows : —

"'The private property of all citizens or subjects Text of the
of the signatory Powers, with the exception of contra- ar'tkie^
band of war, shall be exempt from capture or seizure
on the high seas or eLsewhere by the armed vessels
or by the military forces of any of the said signatory
Powers. But nothing herein contained shall extend
exemption from seizure to vessels and their cargoes
which may attempt to enter a port blockaded by the
naval forces of any of the said Powers.

" ' La propriete privee de tons les citoyens ou sujets
des Puissances signataires, a I'exception de la contra-
bande de guerre, sera exempte en pleine mer ou autre
part de capture ou de saisie par les navires amies ou
par les forces militaires des dites Puissances. Toute-
fois cette disposition n'implique aucunement I'inviola-
l)ilite des navires qui tenteraient d'entrer dans un
port bloque par les forces navales des susdites Puis-
sances, ni des cargaisons des dits navires.'

" As regards the submission of this question to the
Conference at this time, we most respectfully present
the following additional observations.

" At the second session of the Conference held on



;512 THE PEACE CONFERENCE AT THE HAGUE

Chapter VI the UOtli of May, it was decided in connection with
Text of the the establishment of the three Commissions to which
artkie? WBre referred the varions articles of the Russian cir-
cular of December 30, 1898/January 11, 1899, as
follows : —

" ' 11 est entendu qu'en dehors des points men-
tionnes ci-dessus, la Conference ne se considere comma
competente pour I'examen d'aucune autre question.
En cas de doute la Conference aurait a, decider si
telle ou telle proposition emise dans les commissions
rentrerait ou non dans le cadre trace par ces points.'
" The fact that we have received the instructions
herein referred to, from the President of the United
States, shows that the scope of the Conference was
believed by our Government to be wide enough to
include this question.

" The invitation from the Government of the
Netherlands in response to which we are here invites
us as follows, ' afin de discuter les questions exposees
dans la seconde circulaire russe du 30 decembre
1898/11 Janvier 1899, ahisi que toutes autres ques-
tions se rattachant aux idees emises dans la circulaire
du 12/24 aout 1898; avec exclusion, toutefois, des
deliberations de tout ce qui touche aux rapports
politiques des Etats ou a I'ordre de choses etabli par
les traites.'

" We respectfully submit that a rule of war relat-
ing to the amelioration of its hardships as practised
upon the sea attaches as fairlj^ to the ideas put forth
in the Russian circular of August 12/24, 1898, as
the stipulations of the Geneva Convention or the



PRIVATE PROPERTY OX THE HIGH SEAS 313

Rules of War relating to operations on land of the Chapter vi
Brussels Conference of 1874. If the Russian circu-
lar of December 30, 1898/January 11, 1899, did not
specifically mention this question, the Government
of the United States has assumed that it was be-
cause the Russian Government wished the Confer-
ence to decide for itself whether the question should
be discussed.

" It would certainly appear from the foregoing
statements that there is here at least a case of doubt
calling for submission to the Conference as is con-
templated in the resolution adopted by the Confer-
ence on the 29th of Ma}^, and in view of this fact
the Delegation of the United States of America
respectfully request that the matter be submitted by
Your Excellency to the proper Commission or to the
Conference itself, that it may be decided whether
our proposal is among those which should now be
considered.

" In submitting this request allow us to present
to Your Excellency the assurance of our most distin-
guished consideration.

'^ Andrew D. White, President.

" Setii Loav.

" Stanford Newel.

"A. T. Mahan.

" William Crozier.

" Frederick W. Holls, Secretary.'*

This letter was referred by the President to the
Second Committee, and at the meeting of the full



;514 THE PEACE CONFERENCE AT THE HAGUE

Chapter VI Coiifereiice on July 5, M. cle Martens of Russia, in
Speech of M. a speecli in which he paid a hearty tribute to the his-
toric adherence of the United States to the great
principle concerned, reported from this Committee
that the Committee did not consider itself competent
to discuss the subject, and that it was therefore not
ready to consider the question upon its intrinsic
merits, but that it had instructed him to report in
favor of a resolution, to be adopted by the Conference,
expressing the hope that the whole subject would be
included in the programme of a future Conference.

Ambassador White, the President of the American
Commission, thereupon made the following speecli : —
Speech of " Mk. PRESIDENT: — The Memorial whicli I liavB

white!^^ ^^ had the honor of presenting to the Conference shows
that for more than a century the Government of the
United States has steadily and earnestly endeavored
to secure the adoption of the principle therein ad-
vocated, namely : the principle of immunity from
seizure in time of war of all private property, except
contraband.

" In heartily responding to the appeal of His
Majesty, the Emperor of Russia, and to the invita-
tion of the Government of the Netherlands to take
part in this Conference, my Government desired not
only to give its support to the main purposes announced
in the Imperial Circular, but to place this principle
once more before the world, in the hope that it might
be definitely incorporated into International Law.

" The Commission have found several of the dele-
gations ready to accept this proposal, and sundry



PRIVATE PROPERTY OX THE II Kill SEAS iJlo

others whose opinions evidently incline toward its Chapter vi
adoption, but Ave have not succeeded in securing a
support sufficiently unanimous to justify us in press-
ing the matter further during the present Conference.

" The doubt generally entertained as to the com-
petence of the Conference in relation to this question,
— a doubt based upon the terms of the invitation
which has brought us together, — the fact that the
delegates of various great Powers have not been fur-
nished with special instructions bearing upon this
subject, and, above all, the necessity wiiich the Con-
ference evidently feels of giving all possible time to
those great questions which, at present, more directly
interest the nations, — all these circumstances make
it evident that we cannot expect of this body at its
present session a positive and final action regarding
this subject.

"But, though we are obliged, with sincere regret,
to recognize this fact, our instructions impose upon
us the duty to do all that lies in our power to the
end that this great question may not be forgotten,
but remain impressed upon the nations here repre-
sented.

'' We have not given up the hope of seeing it reach
a happy solution. Nothing is more evident than the
fact that eminent thinkers in the domain of Inter-
national Law are more and more inclining to the
doctrine Avhicli our Memorial advocates. More and
more, also, it is becoming clear to the world at large,
that the adoption of this principle is in the interest
of all nations, and it is also more and more distinctlv



310 rilE PEACE CONFERENCE AT THE HAGUE

Chapter VI secn that every obligation to abstain from privateer-
Speechof ing is vain, save under the broad principle that all
White. private property upon the high seas, with the excep-

tion of contraband of war, should be exempt from
seizure ; that the two methods of injuring an enemy
in time of war are logically connected — that to
secure the abolition of one it is necessary to concede
the other. Your eminent predecessor in the repre-
sentation of the Russian Empire at a conference of
great Powers, Count Nesselrode, expressed not only
the profound conviction of a statesman and diplo-
matist but a great truth which is steadily gaining
upon the world when he said, *' The adoption of the
declaration in favor of this immunity which the
United States has proposed, and wdiich it steadily
supports, would be a crown of glory to modern
diplomac}'.'

" I am aware that an opposing argument has been



Online LibraryFrederick William HollsThe peace conference at The Hague, and its bearings on international law and policy → online text (page 22 of 39)