CONVENTION FOR THE PEACEFUL ADJUSTMENT OF INTERNATIONAL DIFFERENCES1 The First Hague Conference had as its main object a consideration of a "possible reduction of the excessive armaments which weigh upon all nations," or, at least, a discussion of the possibility of "putting an end to the progressive development of the present armaments." The conference early realized that even a limitation of the increase of military and naval expenditure was impracticable at that time, and devoted its chief energies to the secondary purpose for which it was called, viz., to discuss and devise " the most effectual means of insuring to all peoples the benefits of a real and durable peace." 3 Among the specific proposals contained in Count Muravieff's circular letter of January 11, 1899, was one "to accept in principle the employment of good offices, of mediation and facultative arbitration in cases lending themselves thereto, with the object of preventing armed conflicts between nations; to come to an understanding with respect to the mode of applying these good offices, and to establish a uniform practice in using them." The result of the deliberations of the third committee the most important commission of the conference was the Treaty of Arbitration, or convention for the peaceful adjustment of international differences, of 1899, consisting of sixty-one articles. Of these, seven articles related to the use of good offices and mediation, six were concerned with international commissions of inquiry, and fifty-two were devoted to international arbitration proper. "In questions 1 Professor Hershey was present at the Second Hague Conference as correspondent of the New York Evening Post and the Boston Evening Transcript.· MANAGING EDITOR. of a judicial character, and especially in questions regarding the interpretation of international treaties or conventions," arbitration was recognized as "the most efficacious and at the same time the most equitable method of deciding controversies which have not been settled by diplomatic methods." 5 By far the most important of these provisions were those which established the Hague Tribunal, or Permanent Court of Arbitration, and regulated its procedure. But it was a court permanent in name only and a panel or list of judges rather than a court. Its procedure and mode of organization were very defective, and its importance lay rather in what it held out by way of promise for the future than of actual achievement. But it was nevertheless a great step in advance; for it provided governments with a list of judges and a procedure ready at hand for the settlement of such differences as they might choose to submit to arbitration, thus rendering it unnecessary for them to enter into long and tedious negotiations respecting the selection of arbitrators or the settlement of the mode of procedure upon the occasion of each and every controversy. Although very few cases have thus far been submitted to the Hague Tribunal, its creation has greatly stimulated the negotiation of treaties of arbitration between nations with agreements to submit some or all disputes to its jurisdiction. And perhaps this has been the greatest single result of the First Hague Conference. But arbitration is not the sole or even chief mode of settling international differences. Diplomacy is ever at work healing wounds, arranging compromises, adjusting claims, and preventing friction. And recent experience during the Russo-Japanese war has shown that there are also great possibilities in mediation and international commissions of inquiry. The signatory powers in 1899 declared in favor of good offices or mediation, as far as circumstances permit, both before and during hostilities, and defined the duties and functions of the mediator. They also recommended the application, when circumstances allow, of special mediation in the following form: Article 16 of the Arbitration Treaty of 1899. See an article by the writer in the New York Independent for September 13, In case of a serious difference endangering the peace, the states at variance shall each choose a power to whom they intrust the mission of entering into direct communication with the power chosen by the other side, with the object of preventing the rupture of pacific relations. During the period of this mandate, the term of which, unless otherwise stipulated, can not exceed thirty days, the states in conflict shall cease from all direct communication on the subject of the dispute, which shall be regarded as having been referred exclusively to the mediating powers, who shall use their best efforts to settle the controversy. In case of a definite rupture of pacific relations, these powers remain charged with the joint duty of taking advantage of every opportunity to restore peace." It is a matter of regret that this form of special mediation, which is based upon the use of seconds in duelling, was not tried upon the outbreak either of the South African struggle or the Russo-Japanesewar; but there can be no doubt that it was in pursuance of the recommendations contained in article 3 that President Roosevelt induced negotiations which resulted in the Treaty of Portsmouth 8 in 1905. This article read: Independently of this recourse [i. e., recourse to the good offices or mediation of one or more friendly powers to avert hostilities]," the signatory powers consider it to be useful that one or more powers who are strangers to the dispute should, on their own initiative, and as far as circumstances will allow, offer their good offices or mediation to the states at variance. The right to offer good offices or mediation belongs to powers who are strangers to the dispute, even during the course of hostilities. The exercise of this right shall never be regarded by one or the other of the parties to the contest as an unfriendly act. If the convention of 1899 for the peaceful adjustment of international differences thus furnished our President with the means of initiating negotiations which terminated one of the greatest wars of modern history, another great war was narrowly averted by means of an institution suggested by this same convention. Article 9 of the Treaty of Arbitration provides: 7 Article 8 of the Arbitration Treaty. This article was drafted by Mr. Holls, secretary of the American delegation. 8 Hershey, The International Law and Diplomacy of the Russo-Japanese War, pp. 347-348. See Article 2 of the Arbitration Treaty of 1899. In differences of an international nature involving neither honor nor vital interests, and arising from a difference of opinion on matters of fact, the signatory powers consider it useful that parties who have not been able to come to an agreement by diplomatic methods should, as far as circumstances allow, institute an International Commission of Inquiry to facilitate a solution of these difference by elucidating facts, by means of an impartial and conscientious investigation. Article 14 declared, however, that "the report of the International Commission of Inquiry shall be limited to a statement of the facts, and shall in no way have the character of an arbitral award." When public anger and excitement in England had been inflamed to the fighting point as the result of what appeared to be a wanton and deliberate attack by the Russian Baltic fleet upon innocent fishermen at Dogger Bank in October, 1904, both the Russian and British Governments, in spite of the fact that a question of honor seemed involved, proposed an international commission of inquiry analagous to that recommended by this convention. It is true that the North Sea Commission, which conducted the North Sea inquiry in conformity with this agreement, was given a scope more extended than that originally contemplated, and this combined the functions of a commission of inquiry and a court of arbitration; 10 nevertheless the credit for suggesting the application of this idea on a large scale belongs to the First Hague Conference. Although the excellence of the work of the Comité d'Examen of the third committee of the Hague Conference of 1899 (which framed the Arbitration Treaty, or convention for the peaceful adjustment of international differences) was generally admitted, additions were freely suggested, and it was felt in some quarters that it needed radical correction and revision. The organization and procedure of the Hague Tribunal was generally held to be defective, and many believed that a new permanent court of arbitration, composed of salaried, impartial, and independent judges, should be instituted. There was also a strong and growing sentiment in favor of obligatory arbitration in a large number of cases a plan which had been advocated by Russia, but was rejected on the motion of 10 Hershey, op. cit., ch. 8, passim. Germany at the First Hague Conference. Mr. W. T. Stead and the other "militant" peace advocates favored making special mediation and commissions of inquiry obligatory, with an interval of at least thirty days' compulsory peace prior to the outbreak of hostilities. Mr. Stead also demanded a so-called league of peace, with a system of international financial boycott and persecution of peace breakers. Acting upon the suggestions of Mr. Richard Bartholdt and William Jennings Bryan, the Interparliamentary Union, at its London session in 1906, adopted a resolution favoring "an investigation of all questions in dispute between nations or a resort to mediation. prior to the commencement of hostilities." 11 Among the Russian proposals of April, 1906, which formed the main basis or program for discussion at the Hague Conference of 1907, were: "Improvements to be made in the provisions of the convention relative to the peaceful settlement of international disputes as regards the Court of Arbitration and international commissions of inquiry." These matters were referred to the committee on arbitration, with M. Bourgeois as president. This commission, which held its first meeting on June 22, 1907, was divided into two sub-committees the first to confine itself to mediation, commissions of inquiry, and arbitration in general, and the second to consider the projects for an international high court of appeal for the final adjudication of maritime prizes. The actual work of the first subcommittee, except that relating to the establishment of a permanent court of arbitral justice, was performed by two Comités d'Examen designated as Comité A and Comité C.12 11 Among the World's Peace Makers, by Hayne Davis, page 180. 12 The first committee, designated as Comité A, and placed under the presidency of M. L. Bourgeois, was composed of Baron Marschall and Mr. Kriege, for Germany; General Porter and Mr. Scott for the United States; Mr. Drago for the Argentine Republic; Mr. Mérey de Kapos-Mère and Mr. Lammasch for Austria-Hungary; Baron Guillaume, reporter, for Belgium; Mr. Ruy Barbosa for Brazil; Baron d'Estournelles de Constant and Mr. Fromageot for France; Sir Edward Fry for Great Britain; Mr. Streit for Greece; Count Tornielli, Mr. Pompili, and Mr. Fusinato for Italy; Mr. Estera and Mr. de La Barra for Mexico; Mr. Lange for Norway; Mr. Asser for the Netherlands; Mr. d'Oliveira |