JUDICATIVE CONCILIATION Reprinted from Judicial Settlement of International Disputes, N the night of October 21st, 1904, during the Russo-Japanese war, Russian warships, proceeding down the North Sea in a mist, fired upon British trawlers at a fishing ground off the Northumberland coast, called "the Dogger Bank"; sinking or injuring some of these peaceful fishing vessels and killing or wounding a number of British citizens who were members of the crews. The excuse was that the officers of the Russian ships believed that the trawlers were Japanese torpedo boats. After a short period of excitement, during which the incident threatened to bring Great Britain and Russia into war with each other, a process of pacific settlement was agreed upon and a treaty signed embodying this agreement. The treaty recited that the British and Russian governments had "agreed to intrust to an International Commission of Inquiry, assembled conformably to Articles IX to XIV of the Hague Convention of the 29th (17th) July, 1899, for the Pacific Settlement of International Disputes, the task of elucidating by means of an impartial and conscientious investigation the questions of fact connected with the incident which occurred during the night of the 21st-22nd (8th-9th) October, 1904, in the North Sea." (Declaration between the United Kingdom and Russia, relating to the Constitution of an International Commission of Inquiry on the subject of the North Sea Incident. British Parliamentary Papers, 1905, vol. ciii, p. 361, (Cd. 2328). The document was executed November 25th, 1904.) The tribunal was to consist of five members-one an officer of high rank in the British navy, one an officer of high rank in the Russian navy; the governments of France and the United States were each to select one of their naval officers of high rank, and the fifth member was to be chosen by these four. If the treaty had contained no other provision than these, there could have been no doubt that the proceeding was one of “inquiry," as defined by the Hague Convention for Pacific Settlement, since the treaty follows almost exactly the words of Article IX. The words there used as defining the function of a "commission of inquiry" are "to facilitate a solution of these differences by elucidating the facts by means of an impartial and conscientious investigation." It is true that Article IX recommends a commission of inquiry only in disputes "involving neither honor nor vital interests," but this is clearly a restriction which disputant nations may waive. But the treaty went farther and conferred on the commission additional functions. Its words were: "The commission shall inquire into and report on all the circumstances relative to the North Sea incident, and particularly on the question as to where the responsibility lies, and the degree of blame attaching to the subjects of the two high contracting parties, or to the subjects of other countries in the event of their responsibility being established by the inquiry." The commission was formed, and made a finding concerning both the facts and the liability. The finding was adverse to Russia on the question of responsibility, and largely favorable to Russia on the question of blame to be attached to the Russian officers. (North Sea Incident. International Commission of Inquiry. Despatch from the British Agent forwarding the Report of the Commissioners. British Parliamentary Papers, 1905, vol. ciii, p. 437, (Cd. 2382). Both parties accepted the finding, and the matter was peacefully and satisfactorily settled. The case is generally cited by writers on international law as an example of settlement by a "commission of inquiry"; but inasmuch as the commission was given jurisdiction to find the facts and also to render an advisory judgment locating the responsibility and determining the degree of blame, a question arises concerning the nature of the proceeding. Is such a process of settlement properly to be regarded as one of “inquiry" within the meaning of the Hague Convention for Pacific Settlement, or should it be classified under some other heading? The Convention states (in Article XIV of the original Convention of 1899, and in substantially the same language in Article XXXV of the revised Convention of 1907), that "the report of an international commission of inquiry is limited to a statement of facts, and has in no way the character of an arbitral award," and that "it leaves the conflicting powers entire freedom as to the effect to be given to this statement." While the function of an "international commission of inquiry" is thus apparently limited to making a finding of facts, nevertheless Article X of the Convention states that the agreement of the parties "defines the facts to be examined and the extent of the commissioners' powers." It requires a liberal interpretation of the words “defines the extent of the commissioners' powers" to find in them a warrant for a commission of inquiry making not only a finding of facts, but also a finding regarding the liability, which is in effect an advisory judgment. However, the treaty above quoted between Great Britain and Russia clearly so interpreted Article X, since it declares that the commission is "assembled conformably to Articles IX to XIV of the Convention," and an interpretation made by the British and Russian governments is entitled to great weight. (The official correspondence relating to the North Sea Incident shows that the draft of the treaty proposed by Lord Landsdowne, in behalf of the British government, stated in the preamble that the parties agreed "that the elucidation of the questions in dispute shall be referred to an International Commission of Inquiry analogous to that provided for in Articles IX to XIV of the Convention," etc., and contained substantially the same language as was finally adopted requiring the commission to report on the responsibility and the degree of blame; that the Russian government, through Count Lamsdorff, proposed a draft with a preamble stating that the commission was to be assembled "conformably to" (conformément aux) these articles, and providing that the commission should fix the responsibility; that five days afterwards Count Lamsdorff telegraphed stating that on the advise of Russian jurists (among them M. de Martens) he had come to the conclusion that the provision of the British draft requiring the commission to fix the responsibility and the degree of blame was "contrary to sense of stipulation of Hague Convention relating to appointment of a commission of inquiry"; to which Lord Lansdowne replied, calling attention to the fact that the British draft used the word "analogous" and that the Russian draft had provided for the commission fixing the responsibility, and asserting that it could not "possibly be contended that the question of responsibility is a question of fact but that the question of blame is not." Lord Lansdowne further said that the opinion of the British government was that the "question of responsibility and question of blame are both questions of fact," and that the word "analgous" was used in the British draft "for greater security in order to meet the kind of objection" raised by the Russian government. Correspondence relating to the North Sea Incident, British Parliamentary Papers, 1905, vol. ciii, p. 369, (Cd. 2350), Nos. 43, 72, 76, 77, 78.) This novel and extraordinary proposition of the British government, that questions of responsibility and degree of blame are questions of fact, was evidently advanced as a diplomatic means of solving a difficulty which threatened to halt the negotiations. The correspondence immediately following that above referred to shows that Russia insisted that it would submit the dispute only to a commission of inquiry assembled conformably to The Hague Convention, and Great Britain that it would submit it only to a commission which should determine the responsibility and the degree of blame. Finally a compromise was reached by adding the provision extending the inquiry so as to include an investigation concerning the responsibility of the subjects of other powers; by calling the instrument a "Declaration" and having it signed at St. Petersburg; and by making a joint stipulation before signing that "should the instrument about to be signed prove in any way inconsistent with the stipulations of the Hague Convention included in Articles IX to XIV, the articles of the instrument shall be held to override those of the Hague Convention." Ibid. Nos. 82, 83, 84, 88, 90. |