Article 18 prescribes that the commission itself shall regulate the details of procedure which have not been provided for either by the special convention or inquiry or the present convention.

Article 35 reproduces the limitations of article 14 of the convention of 1899, which asserted that "the report of the international commission of inquiry shall be limited to a statement of the facts, and shall in no wise have the character of an arbitral award." As stated above,25 this direction was not observed by Great Britain and Russia in their institution of the North Sea Commission, which combined the functions of court of arbitration with those of a commission of inquiry.

The Russian delegation had proposed the following modification of article 35:

The powers at variance, having obtained knowledge of the ascertainment of facts and responsibilities as declared by the international commission of inquiry, are free either to conclude an amicable arrangement or have recourse to the Permanent Court of Arbitration at The Hague.

This proposal seems to have been rejected by Committee A on the ground that it implied obligatory arbitration as a necessary consequence of recourse to commissions of inquiry, whose use it would thus tend to discourage.26

In this matter, again, the leaders of the conference appear to have exhibited undue timidity and conservatism. It is difficult to see how the principle of obligatory arbitration was necessarily involved; even had this been the case, it need not necessarily have been a fatal objection to the Russian proposition.

The most important part of the convention for the peaceful adjustment of international differences is that portion relating to international arbitration, which consists of fifty-four articles, divided into four chapters under the head of Title IV.

Chapter I on "Arbitral Justice" consists of articles 37-41. Article 37 combines articles 15 and 18 of the convention of 1899. It now reads:

25 See supra, p. 36.

26 Baron Guillaume's Report, p. 19.

International arbitration has for its object the determination of controversies between states by judges of their own choice, upon the basis of respect for law.

Recourse to arbitration implies the obligation to submit in good faith to the decision.

Article 16 has been called the corner-stone of the convention of 1899. It was around this article that the various propositions, regarding obligatory arbitration, naturally grouped themselves. read:

It

In questions of a judicial character, and especially in questions regarding the interpretation of application of international conventions, arbitration is recognized by the signatory powers as the most efficacious and, at the same time, the most equitable, means of deciding controversies which have not been settled by diplomatic methods.

Except for the substitution of the phrase contracting powers for signatory powers a substitution which is made in every instance where this expression is used in the convention of 1907 article 16. of the convention of 1899 remains intact, as article 38 in that of 1907. On the motion of M. de Mérey, of Austria-Hungary, the following paragraph to article 38 was added:

Consequently, it would be desirable that, in differences upon questions of the kind above mentioned, the contracting powers should have recourse to arbitration, in so far as circumstances may allow.

Articles 17 and 19 of the convention of 1899 were retained as articles 39 and 40 without any modification. The contracting powers reserve the right to arbitrate any kind of controversy or enter into general or special agreements with a view to extending arbitration to any or all cases which they consider suitable for such submission.

Chapter II on "The Permanent Court of Arbitration" consists of articles 41 to 51. Articles 41 and 42 are a reproduction of articles. 25 and 21 of the convention of 1899. They provide for the maintenance of the "Permanent Court of Arbitration established by the First Peace Conference." This court shall be "accessible at all times," and shall have "jurisdiction of all cases of arbitration, unless there shall be an agreement between the parties for the establishment of a special tribunal."

Article 43, which corresponds to article 22 of the convention of 1899, prescribes the main duties of the Internatural Bureau at The Hague..“It shall serve as the record office for the court and as its medium of communication. It shall have the custody of the archives and conduct all the administrative business."

Article 44, which almost literally reproduces article 23 of the convention of 1899, provides for the selection by each contracting power of "not more than four persons of recognized competence in questions of international law, enjoying the highest moral reputation, and disposed to accept the duties of arbitrators. The persons thus selected shall be enrolled as members of the court, upon a list which shall be communicated by the Bureau to all the contracting powers. Their term of appointment is for six years,

*

*

subject to renewal.

Article 24 of the convention of 1899 stipulated that

whenever the signatory powers wish to have recourse to the Permanent Court for the settlement of a difference that has arisen between them, the arbitrators selected to constitute the tribunal which shall have jurisdiction to determine such difference, shall be chosen from the general list of members of the court. If such arbitral tribunal be not constituted by the special agreement of the parties, it shall be formed in the following manner: Each party shall name two arbitrators, and these together shall choose an umpire. If the votes shall be equal, the choice of the umpire shall be intrusted to a third power selected by the parties by common accord. If an agreement is not arrived at on this. subject, each party shall select a different power, and the choice of the umpire shall be made by the united action of the powers thus selected. The tribunal being thus constituted, the parties shall communicate to the Bureau their decision to have recourse to the court, and the names of the arbitrators. The Tribunal of Arbitration shall meet at the time fixed by the parties. The members of the court, in the discharge of their duties, and outside of their own country, shall enjoy diplomatic privileges and immunities.

The above provisions have, with a few slight additions, been incorporated into articles 45 and 46 of the convention of 1907. But one paragraph has been modified and a new one added:

Each party shall name two arbitrators of whom only one may be a national or chosen from among those who have been designated by it as members of the Permanent Court.

If, after a delay of two months, these two powers have not been able to come to an agreement, each of them shall present two candidates taken from the list of members of the Permanent Court (these not being nationals of either of them), beyond the members designated by the parties. It shall determine by lot which of the candidates thus presented shall be the umpire:

Article 48 contains what is perhaps the most unique and interesting innovation in the entire convention for the peaceful adjustment of international differences. Article 27 of the convention of 1899 had asserted that "the signatory powers consider it their duty, in case a serious dispute threatens to break out between two or more of them, to remind these latter that the Permanent Court of Arbitration is open to them." Much was hoped from this declaration of the powers proposed by France, and Mr. Holls was of the opinion that "next to the establishment of the Permanent Court of Arbitration this article undoubtedly marks the highest achievement of the conference." 27 But it remained practically a dead letter and, so far as the writer is aware, the only applications which have been made of article 27 have been by President Roosevelt in Latin American affairs.

In order to encourage and facilitate the arbitration of grave political controversies, the Peruvian delegation proposed that in case of a controversy between two powers one of them may address to the International Bureau of The Hague a note declaring that it is disposed to submit the difference in question to arbitration. "This note shall also indicate the point of view of the power making the declaration as to its rights in the matter. The International Bureau shall communicate this declaration to the other power, and place itself at the disposition of both powers in order to facilitate an exchange of views between them leading to a mutual agreement."

A similar proposition was made by the Chilean delegation, which, however, aimed to avoid the imposition upon the International Bureau of the duties of obligatory mediation a function for the exercise of which it was not designed. The Chilean proposition simply provided that "the International Bureau shall immediately

27 Holls, Peace Conference, p. 269.

communicate the above declaration to the interested government. It shall also communicate this declaration, as also the reply thereto, to the signatory government of the present convention."

The Peruvian proposal, as amended by Chile, was warmly supported by the delegations from France, the United States, Great Britain, Russia, and Brazil; but opposed by Germany, Austria, Belgium, and Greece. As a result of this discussion, the following paragraphs were finally added to the "duty" sections of article 48.

In case of controversy between two powers, one of them may always address to the International Bureau a note declaring that it is disposed to submit the difference to arbitration.

The Bureau shall immediately communicate this declaration to the other powers.28

It remains to be seen whether article 48 of the convention of 1907 will meet with a more cordial reception than did article 27 of the convention of 1899. There are undoubtedly great possibilities in it even in its present modified form, if properly and extensively ap plied. In commenting upon this innovation, Baron d'Estournelles de Constant says: 29

Thanks to America, a very important article was voted, article 48, which authorizes governments, in case of disputes, to address the Bureau of The Hague directly and demand or propose arbitration. This mechanism has not even been noticed by the press, ,30 and yet it will be amply sufficient to put all the resources of arbitration in motion. Previously, where two states had a ground of quarrel they were obliged to agree together to submit the question to arbitration. And such an agreement between two governments whose relations have become envenomed is almost impossible. To-day it is in the power of one of them to make its offer openly, and thus force the second state to accept or decline that offer in presence of public opinion. It is a very great progress, although it may appear almost imperceptible, and henceforth a state that sincerely wishes to avoid war can reply to its aggressor: "I appeal to the judges at The Hague."

28 Baron Guillaume's Report, pp. 25-26, 176, 218, 219; Le Courrier de la Conférence for October 2, 1907; Holls, op. cit., pp. 267-269.

29 In the New York Independent for November 21, 1907.

30 This statement is not quite accurate, for a commendation of the Peruvian proposition by the writer appeared in the New York Evening Post for July 27, 1907.