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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:
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,3o 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 à 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.
There is another phase of the matter which deserves consideration. The federation of the world is often regarded as a mere vision of poets or a dream of philosophers. But it may be observed that in the Hague Tribunal, or Court of Arbitration, we actually have, albeit in rudimentary form, a world judiciary; in the system of periodical Hague conferences, we have at least the rude beginnings of a world legislature; and in the International Bureau at The Hague, we may in time discover the germ of a world executive. 31
Article 49 relates to the duties of the permanent Administrative Council, which is composed of the diplomatic representatives of the contracting powers accredited to The Hague. This Council is charged with the establishment and organization of the International Bureau, which remains under its direction and control. This article replaces article 28 of the convention of 1899, of which it is almost an exact copy. But it provides that nine instead of five members shall constitute a quorum. The duties of this Council and Bureau relate principally to the operation of the Hague Tribunal, for which it serves as a medium of communicating with the contracting powers.
Article 29 of the convention of 1899 provided that “the expenses of the Bureau shall be borne by the signatory powers in the proportion established for the International Bureau of the International Postal Union." In view of the large number of new adhering powers, it was deemed equitable to add to article 50 of the convention of 1907, the following paragraph:
The expenses charged to the adhering powers shall be counted from the date of their adhesion.
Chapter III on “ Arbitral Procedure” consists of articles 51 to 86 and need not be considered in great detail. They correspond to
31 In an article entitled “The Coming Peace Conference at The Hague,” published in the New York Independent for September 13, 1906, the writer called attention to the importance of appointing a permanent committee to sit during the interim [i. e., between successive conferences] in order to watch over international interests, to use its influence in behalf of peace and the enforcement of law, and report upon desirable changes, or improvements in international law at the meeting of the following congress or conference.” This suggestion was scarcely noticed at the time.
articles 30 to 58 of the convention of 1899 and, like these, are purely optional
Article 31 of the convention of 1899 provided that “ The powers which resort to arbitration shall sign a special act (compromis) in which the subject of the difference shall be precisely defined, as well as the extent of the powers of the arbitrators. This act implies an agreement by each party to submit in good faith to the award." This article was entirely recast in article 52 of the convention of 1907 and two new articles (articles 53 and 54) added. Article 52 .contains very specific directions as to what matters shall be included in the special agreement (compromis). Article 53 declares that the Permanent Court is competent to conclude such an agreement if the parties are in accord upon this point. It is equally competent, even if the request be made by only one of them (after a failure to come to an agreement by diplomatic methods) in certain cases.
The question of the choice of languages gave rise to some discussion in committee. Article 38 of the convention of 1899 authorized the Hague Tribunal to decide upon the choice of languages, but Germany and Russia were of the opinion that the parties themselves should decide this matter. Article 61 was finally edited to read:
If the agreement has not determined the languages to be employed, the tribunal shall decide.
Article 37 of the convention of 1899 left it to the absolute dis«cretion of the parties to employ such agents and counsel as they wished. This freedom seems to have been abused by some of the parties in employing as counsel members of the Hague Tribunal itself, thus inviting severe criticism in some quarters. In view of this danger, the German amendment to article 62 was adopted :
Members of the Permanent Court can only exercise the function of agents, counsel, or advocates, in behalf of the power which has named them members of the court.32
32 A Russian amendment proposed to prohibit the practice altogether. It had the support of Great Britain and the l’nited States. See Baron Guillaume's Report, p. 36.
The question of the publicity of discussions does not seem to have given rise to any debate. In 1907 as in 1899 it was provided that
they shall be public only in case it shall be so decided by the Tribunal, with the assent of the parties” (art. 66). Of course it is expected that publicity will be the rule. To the declaration of article 51 of the convention of 1899 that “the deliberations of the tribunal shall take place with closed doors,” article 78 of the convention of 1907 adds, “and remain secret.” Every decision is to be by a majority vote. The provision (in article 51) that “the refusal of a member to vote shall be noted in the official minutes " was suppressed in article 78.
The requirement of article 52 that “the arbitral award must be drawn up in writing and signed by each member of the tribunal," as also the permission granted to those voting in the minority to state, in unity, the grounds of their dissent, were also suppressed in article 79; but the provision that “the arbitral award shall be made by a majority of votes, and accompanied by a statement of the reasons upon which it is based," was retained.
Articles 53 and 54 of the convention of 1899 remain unchanged in that of 1907. Articles 80 and 81 prescribe that the award which is to settle the dispute finally and without appeal shall be read in public in the presence of the agents and counsel of the litigants. Article 82 is altogether new.
It declares that “Every difference, which may arise between the parties concerning the interpretation and execution of the award, in so far as not forbidden by special agreement, shall be submitted to the tribunal that made it.”
The Russian delegation asked for the total suppression of article 55 of the convention of 1899, which lays down the conditions under which the parties may reserve the right to demand a rehearing of the case. These are the “ discovery of new facts, of such a character as to exercise a decisive influence upon the judgment, and which at the time of the judgment were unknown to the tribunal itself and to the parties demanding the rehearing." This condition must be established by a decision of the tribunal itself.
In 1907, as in 1899, M. de Martens argued strongly against the retention of article 55 on the ground that an arbitral award should