been adopted, it is highly probable that a type of small-arm projectile would have been developed which would have met all reasonable requirements in respect to velocity, range, and flatness of trajectory, without the needless and inhuman laceration of tissues which attend those now in use, or which are proposed for adoption in the armies of some civilized powers.

Although the United States was not able to accept the declaration of 1899 in the form in which it appears in the convention, it has always regarded the restriction as an appropriate subject for conventional regulation, supplementing, as it does, the humane requirements of the St. Petersburg declaration of 1868.

The declaration of 1899, while conceived in a highly humane spirit, made the prohibition in respect to the use of small-arm projectiles to depend, not upon their effects upon the human body, or upon their efficiency in placing a man hors de combat, but, to some extent, upon their mechanical construction, and upon certain specific effects upon the tissues which were expressly stated in the declaration. It will be apparent that any restriction which it may be determined to impose, by treaty or otherwise, upon the use of certain small-arm projectiles should be logically conceived, clearly stated, and should be made to depend upon the wound occasioned by their use. In other words, it should be based upon the character and extent of the injury inflicted upon the destruction of tissues rather than upon the mechanical construction of the projectile which causes the destruction.

It was believed that the time had come for the adoption of a sound and wholesome prohibition upon the use of small-arm projectiles the effects of which upon the human body are in excess of the requirements of civilized warfare. A government has the right to use a projectile which, by its shock of impact, will place an individual combatant hors de combat. So much of injury is lawful, but all injury in excess of the limit so imposed is unlawful, because it is cruel, inhuman, accomplishes no military purpose, and exceeds the standards of reasonable military necessity.

A proposition couched in the following language, which is identical with that used by General Crozier in 1899, was prepared, and

printed and distributed in the manner prescribed by the rules governing the procedure of the conference and its committees:

The use of bullets which inflict unnecessarily cruel wounds such as explosive bullets and, in general, every kind of bullet which exceeds the limit necessary for placing a man immediately hors de combat should be forbidden.

On the day set apart for the discussion of the declaration it was called up, but was ruled out of order by the president of the Second Committee on the ground that the amendment of the two declarations which were still in force was not included in the program, and upon the further ground that a treaty stipulation, in the form of a declaration, could only be amended at the suggestion of a power which had formally denounced it.

It was suggested to the chair that, as the United States had never become a party to the declaration, it was in substantially the same position, in so far as its amendment and adoption were concerned, as if it had adhered to the stipulation and had subsequently denounced it; but this suggestion was not accepted.

Formal exception was then taken to these rulings, but, as they seemed to have received the tacit approval of the delegates who composed the membership of the committee, it was not deemed expedient to appeal from the decision of the chair in respect to an interpretation of a conventional stipulation which would not have been reached by application of any of the rules for the interpretation of treaties and statutes which are known to the common law. Had the question been submitted to discussion it is only too apparent that a conclusion would have been reached couched in terms as vague, uncertain, and barren of practical results as is the obsolete declaration in that regard of the conference of 1899.

an

GEORGE B. DAVIS.

HAGUE CONVENTION RESTRICTING THE USE OF FORCE TO RECOVER ON CONTRACT CLAIMS

The convention of the Second Hague Conference respecting the subject of contract claims alleged to be due by one state to the subjects of another has a special interest to the citizens of the twentyone American republics, particularly the first article of the convention, which reads as follows:

Les Puissances contractantes sont convenues de ne pas avoir recours à la force armée pour le recouvrement de dettes contractuelles réclamées au Gouvernement d'un pays par le Gouvernement d'un autre pays comme dues à ses nationaux.

Toutefois, cette stipulation ne pourra être appliquée quand l'Etat débiteur refuse ou laisse sans réponse une offre d'arbitrage ou, en cas d'acceptation, rend impossible l'etablissement du compromis, ou, après l'arbitrage, manque de se conformer à la sentence rendue.

OBLIGATORY ARBITRATION

On its face the convention looks to invoke a definite advance toward obligatory arbitration, although it is not put forward in direct terms, as was the original Russian proposal at the First Hague Conference in 1899 regarding international arbitration, which provided:

"Arbitration shall be obligatory in the following cases, so far as they do not affect vital interests or the national honor of the contracting states: "I. In the case of differences or conflicts regarding pecuniary damages suffered by a state or its citizens, in consequence of illegal or negligent action on the part of any state or the citizens of the latter.

"II. In the case of disagreements or conflicts regarding the interpretation or application of treaties or conventions upon " certain specified subjects.

The First Hague Conference suppressed the proposals to make arbitration in any way obligatory. It set up an arbitration tribunal but gave to arbitration no definite jurisdiction. An arrangement

was provided for the arbitration of differences, which left each state free to decide in each case whether it would invite arbitration, or, if invited, would accept it.

Somewhat superfluously the signatory powers in the First Hague Conference stipulated to "reserve to themselves the right to conclude * * * new agreements, general or special, with a view of extending the obligation to submit controversies to arbitration." The "epidemic" of arbitration treaties which followed the First Hague Conference showed the same hesitancy on the part of nations to give to arbitration a definite and unconditional jurisdiction. Of the fifty-odd treaties which were signed "with a view of extending the obligation" to arbitrate, only three or four made this method of redress obligatory upon the contracting powers. With these three or four exceptions, no definite subjects of international dispute were unconditionally segregated for settlement by arbitration. Each state reserved for its own decision, whenever a question of difference should arise, whether the particular question should be submitted. If at such time, which would ordinarily be a time of more or less. national excitement and feeling, the state should decide that it was compatible with its "vital interests," "national honor," "independence," or "constitution" to arbitrate, then it might extend an invitation, or accept an invitation, to adjust the difference by arbitration. In short, neither the conventions of the First Hague Conference nor those which followed between particular states "extending the obligation" (except as noted) placed the slightest legal restriction upon the use of force in order to secure the settlement of an international dispute.

Such was the situation which faced the Second Hague Conference when it convened. To overcome the hesitancy which all statesmen feel about solemnly binding their governments to obligatory arbitration, the subject was adroitly approached from another side. It has been arranged that the creditor states, who may from time to time feel the necessity of protecting their subjects against the delinquencies of debtor states, shall agree to give to arbitration a definite jurisdiction whenever a debtor state, with whom a dispute has arisen in respect to "dettes contractuelles," shows a willingness

to have the controversy settled by recourse to legal principles instead of armed force. A debtor state is protected by the law until it puts itself outside the law that is, outside of the three reasonable reservations of the present convention. When a debtor state in a dispute over "dettes contractuelles" (1) refuses or fails to respond to an offer to arbitrate, or (2) in case of acceptance makes impossible the formulation of the agreement necessary to an international arbitration, or (3) after the arbitration has taken place fails to carry out the award rendered, a creditor state may resort to armed force to compel a settlement of the controversy. As was pointed out by the eloquent delegate from Brazil, Señor Ruy Barbosa, in the subcommittee which had the American proposal under consideration, the reservations in this convention, expressly permitting the use of armed force, were only such as would necessarily be implied in any scheme of obligatory arbitration which should omit to state them expressly.

From its first introduction in the conference, the American proposal enjoyed the almost unqualified approval of the delegations of Germany, Great Britain, France, Japan, Russia, Italy, AustriaHungary, Portugal, and Spain. Nor was it entirely overlooked by these delegations that the convention embodied obligatory arbitration. The President of the Conference, M. Léon Bourgeois, whose attention has long been unremittingly given to advancing this form of arbitration, declared in the subcommittee: "The delegation of France will vote favorably on the proposal of the United States (surtout parce que nons y voyons un cas d'arbitrage obligatoire), especially because we see in it a proposition of obligatory arbitration." Baron Marschall von Bieberstein, the very able head of the German delegation, at once rose and declared that he did "not share this view" of the American project. This episode had particular interest because the convention, above all others before the conference of special solicitude to M. Bourgeois, was the one which proposed in direct terms the adoption of obligatory arbitration, and its defeat was largely due to the powerful objections made to it by Baron von Bieberstein, who contended that the states of the world were yet too inexperienced in arbitration to embark upon solemn