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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. Pompilj, and Mr. Fusinato for Italy; Mr. Esteva and Mr. de La Barra for Mexico; Mr. Lange for Norway; Mr. Asser for the Netherlands; Mr. d’Oliveira for Portugal; Mr. de Martens for Russia; Mr. Milovanovitch for Servia; Mr. de Hammarskjöld for Sweden; Mr. Carlin for Switzerland.
The result of the labors of these committees was a revised Arbitration Treaty, or convention for the peaceful adjustment of international differences, which was indeed based upon that of 1899, but which consisted of ninety-four articles instead of sixty-one, and comprised a number of additions and corrections.
In order to pass judgment upon this portion of the work of the Second Hague Conference, it will be necessary to compare the conventions of 1899 and 1907, with a view of ascertaining their main points of similarity and difference.
The first article remains unchanged. It reads:
With a view to obviate, as far as possible, recourse to force in the relations between states, the contracting powers agree to use their best efforts to insure the pacific settlement of international differences.”
The seven articles (arts. 2–9) on good offices and mediation also remain unchanged, except that, on motion of Mr. Choate, the words and desirable were added to the word useful in the first paragraph of article 3. This paragraph now reads:
Independently of this recourse, the contracting powers consider it useful and desirable that one or more powers, 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 conference has been criticised 13 for failing to make a delay of thirty days and special mediation as recommended in article 8 14 compulsory; but a little reflection should convince one that the duties of a mediator are too delicate and the situation' at such times is usually too critical to be controlled by the rude hands of force. Besides, it is extremely doubtful whether the suggestion was a practical one; for “ two prospective belligerents have seldom, if ever,
The other committee, designated as Comité C, was placed under the presidency of Mr. Fusinato; it was composed of Mr. Kriege, Mr. Scott, Mr. Lammasch, Baron Guillaume, reporter; Mr. Fromageot, Sir Edward Fry, Mr. Crowe, Mr. Lange, and Mr. d'Oliveira. A third committee (B) considered the establishment of a court of arbitral justice.
13 By Mr. W. T. Stead in Le Courrier de la Conférence for July 4, 1907. 14 For the text of this article, see supra, p. 31.
reached the same stage in their military or naval preparations at the same time. It is not probable that Von Moltke, who informed Bismarck that he was ready for war on July 13, 1870, would have been willing to give France thirty days during which to complete the mobilization of her army. Japan was ready to attack the Russian fleet at Port Arthur on the evening of February 8, 1904. Is it likely that she could have been induced to give the Russians another month during which to transport more troops to Manchuria ?” 18
The delegation from Haiti suggested a modification of article 8 with a view of securing an impartial mediator, viz, that the two powers selected by the parties at variance choose a third power to act in that capacity. But this proposal was evidently founded upon a misunderstanding of the real character of mediation, and it was unanimously rejected by the committee.16
The convention of 1907 devotes twenty-eight articles (arts. 1937) to commissions of inquiry instead of the six articles of the convention of 1899. The additional articles relate mainly to matters of organization and procedure.
After much deliberation it was decided to leave article 9 intact,17 except for the addition of the phrase and desirable after the word useful. An amendment proposed by Haiti that, as in the case of arbitration and mediation, “the signatory powers may equally suggest to the parties in controversy recourse to international commissions of inquiry,” was rejected for the same reasons that the Haitian proposal regarding special mediation had been set aside.18 This action was most unfortunate. It was apparently based on a failure to distinguish between the two Haitian propositions, which were wholly dissimilar in character and import.
The discussion turned mainly on the Russian proposal to substitute the term agree for the words consider useful and to grant to commissions of inquiry the right to fix responsibility as well as elucidate facts.
15 Citation from the writer's letter to the New York Evening Post for June 15, 1907.
18 On the Haitian proposition, see M. le Baron Guillaume's Report, pp. 5 and 201, and Le Courrier de la Conférence for July 9, 1907.
17 See supra, p. 32.
The text of the Russian proposal was as follows:
In differences of an international nature involving neither honor nor independence,19 and arising from a difference of opinion on matters of fact, the signatory powers agree, if circumstances allow, to institute a commission of inquiry to facilitate a peaceful solution of these differences by elucidating the facts and fixing responsibilities, in case there are any, by an impartial and conscientious investigation.20
The eminent Russian jurist, M. de Martens 21 argued repeatedly and at length in favor of these changes. He did not insist upon the word responsibilities, nor wish to make recourse to commissions of inquiry obligatory; but he desired to render their use easier and more frequent, and maintained that the wording of the article as agreed upon was extremely defective. He pointed out that the conference had failed to draw adequate profit from the teaching afforded by the experience of the North Sea Commission of Inquiry which met in Paris in January, 1905 — a commission which not only investigated the facts, but also passed upon the questions of responsibility and degree of blame, in connection with the North Sea incident.
But the Russian jurist was unable to convince his colleagues of the first commission, who seemed to fear that the acceptance of these enlightened views would tend to render the use of commissions of inquiry compulsory. The main opponents of the Russian proposition appear to have been Count Tornielli, of Italy, Sir Edward Fry, Baron Marschall von Bieberstein, of Germany, Turkhan Pacha, and M. Beldiman, of Roumania, the leader of the opposition to commissions of inquiry in the Hague Conference of 1899.22
19 In the Russian draft the word independence is substituted for the phrase vital interests.
20 For the Russian text, sec Baron Guillaume's Report, p. 195. The additions and variations of the Russian draft have been placed in italics. There is also an important omission of the phrase "parties who have not been able to come to an agreement by diplomatic methods.”
21 For the views of Professor de Martens on commissions of inquiry, see the Report of Baron Guillaume, pp. 6–7; Première Commission, troisieme séance, pp. 3-4; Le Courrier de la Conférence for July 10, 1907; and Holls, op. cit., pp. 206-210.
22 Le Courrier de la Conférence for July 10, 1907; and Holls, op. cit., 214.