Front Page Titles (by Subject) I.: Convention for the pacific settlement of international disputes 1 . - The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War
Return to Title Page for The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
I.: Convention for the pacific settlement of international disputes 1 . - A. Pearce Higgins, The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War 
The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War. Texts of Conventions with Commentaries, by A. Pearce Higgins, LL.D. (Cambridge University Press, 1909).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Convention for the pacific settlement of international disputes1 .
The work of the First Conference.The most important result of the First Conference in the opinion of Sir Julian Pauncefote, the First British delegate, was the production of a Convention for the pacific settlement of international disputes. “It was elaborated by a Committee composed of distinguished jurists and diplomatists and it constitutes a complete code on the subject of good offices, mediation and arbitration. Its most striking and novel feature is the establishment of a Permanent Court of international arbitration, which has so long been the dream of the advocates of peace, destined, apparently, until now never to be realized2 .” This Convention was the work of the Third Committee in 1899, which commenced its labours with an examination of a draft communicated to the Conference by the Russian Delegation. This contained no provision for the establishment of a permanent international tribunal of arbitration. Proposals with this object were submitted to the Conference by the British delegates who worked in collaboration with those of the United States who had received instructions to present a project of an international tribunal not dissimilar to the British in some respects, “though hampered with provisions relating to procedure,” but these proposals were not pressed, and the American delegates supported the British draft. In the course of the examination of the various projects, the British proposals were ultimately taken as a basis. The work of the Committee and its results were summarised in the able report of M. le Chevalier Descamps whose labours in the cause of International Arbitration were acknowledged by the Committee, extracts from his Essay on Arbitration being printed and circulated among the members1 .
The Convention is divided into four Titles: (i) on the maintenance of the general peace (1 article); (ii) on good offices and mediation (7 articles); (iii) International Commission of Inquiry (6 articles); (iv) International Arbitration (42 articles).
This Convention is a noteworthy advance on previous attempts to extend the principle of arbitration as a means of settlement of international disputes, and by far the most important part of it is Chapter ii. of the Fourth Title which creates a Permanent Court of Arbitration, the credit for which is chiefly due to the combined labours of the British and United States delegates. The Russian draft contemplated little more than the framing of Rules of Procedure for international tribunals, which, whatever the merit of those rules, would not materially have advanced the cause of arbitration. The expression “Permanent Court” does not accurately describe the institution created by this Convention under which each of the signatory Powers agreed within three months after its ratification to select four persons at the most of known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of arbitrators (Art. 23). When any of the signatory Powers desire to have recourse to the Permanent Court the arbitrators are to be chosen from the list of members of the Court. The Court is only permanent in the sense that there now came into existence a body of duly qualified arbitrators, ready and willing if called upon to undertake the work of assisting in the peaceful settlement of disputes, and provided with general rules of procedure for the fulfilment of their office. Four times since 1899 has a body constituted under the term of this Convention come into being and delivered judgment1 , and certain defects had become apparent in the working of the Court. A Commission of Inquiry, constituted with somewhat wider powers than those provided by Title iii. of the Convention, settled a most important dispute between Great Britain and Russia, and from its proceedings improvements in the Convention were seen to be advisable.
The object of the Second Conference.The Circular of Count Benckendorff of the 3rd April, 1906, placed as the first item in the proposed Programme for the consideration of the Second Hague Conference: “(1) Improvements to be made in the provisions of the Convention relative to the pacific settlement of international disputes, so far as the Court of Arbitration and the International Commissions of Inquiry are concerned.” These subjects were entrusted to the First Committee under the presidency of M. Léon Bourgeois, and its two Sub-Committees designated as Committee A and C respectively, for which Baron Guillaume acted as Reporter. The Report of the First Committee, containing an account of their discussions and the changes proposed in the Convention of 1899, was presented to the Ninth Plenary Meeting of the Conference on the 16th Oct. 19072 . The result was the adoption of a revised Convention of 97 Articles, which when ratified replaces as between the contracting Powers the Convention of 1899. A comparison of the two Conventions shows how far the original Convention remains unchanged, and the additions which the Conference was able to make.
The preamble points out that the object of the revision is to ensure the better working in practice of commissions of inquiry and tribunals of arbitration, and of facilitating recourse to arbitration in cases which allow of a summary procedure. It is on these matters that the chief changes will be found. Chapter iv. of Part iv. on arbitration by summary procedure is wholly new.
Good offices and mediation.Except for the substitution of the word “contracting” for “signatory” Powers, and the addition of the words “and desirable” in Article 3 which now reads that “the contracting Powers deem it expedient and desirable” that strangers to a dispute shall as far as circumstances allow offer their good offices or mediation to states at variance, there is no alteration in the first 8 Articles of the 1899 Convention. The addition of the words “and desirable” was made on the proposition of the First Delegate of the United States, Mr Choate. The word “contracting” is throughout the Convention substituted for “signatory.”
An endeavour was made by the Haytian delegate to modify Art. 8 in such a way that the two Powers chosen by the states at variance should themselves nominate a third to act as mediator, but it was felt that not only would this increase the difficulty of the situation, but was not in harmony with the scheme of mediation of the Article.
There is according to many writers on international law a theoretical difference between mediation and good offices, but this is not observed in the text of the Convention. The difference is, however, more theoretical than practical, and both consist in a friendly interposition of a third Power to adjust differences and lead to a pacific solution of a dispute between two Powers at variance1 .
International Commissions of Inquiry.The subject of International Commissions of Inquiry was dealt with in 6 Articles in the Convention of 1899, but in that of 1907 it occupies 28 Articles. The institution had proved its value, and the Conference availed itself of the experience which had been gained by the North Sea Commission which sat in 19052 . The occasion of this Commission was an incident which occurred in the progress of the Russian Baltic Fleet to the Far East during the Russo-Japanese War. On the night of October 21-22, 1904, some ships of the Russian Fleet fired on the Hull fishing fleet which was engaged in fishing off the Dogger Bank in the North Sea. Two men were killed, several injured, one boat was sunk and others damaged. The attack had every appearance of a deliberate outrage, and Lord Lansdowne immediately addressed a note to the Russian Minister demanding an apology, compensation and the punishment of the offenders. The tension between Great Britain and Russia was great, and for a short time war appeared to be inevitable. The Russian Government maintained that Japanese torpedo-boats were concealed among the fishing fleet, and that consequently the firing took place as an operation of war. The presence of Japanese boats was denied by Great Britain. Russia professed her readiness to make compensation if the facts were not as she alleged. The dispute turned therefore on a question of fact, and by a Declaration of Nov. 25, 1904, the two Powers “agreed to entrust to an International Commission of Inquiry, assembled in accordance with Articles ix.-xiv. of the Hague Convention of July 29, 1899, for the pacific settlement of international disputes, the care of elucidating by an impartial and conscientious examination the question of fact relating to the incident which took place during the night of Oct. 21-22, 1904, in the North Sea—in the course of which the firing of cannon of the Russian Fleet occasioned the loss of a boat and the death of two persons belonging to a flotilla of British fishermen, and also damages to the boats of the said flotilla, and wounds to the crew of some of these boats.” The Commission was composed of five members: two officers in the British and Russian Navies respectively (Admiral Sir L. A. Beaumont and Admiral Kaznakov); two naval officers chosen by the United States and France (Admirals Davis and Fournier); and a fifth member chosen by the Emperor of Austria (Admiral Baron Spaun). Great Britain and Russia each appointed a jurist as assessor (but without a vote), and agents. By the 52nd Article the terms of the Inquiry were explained to be the following: “The Commission shall make an inquiry into and draw up a report upon all the circumstances relating to the North Sea incident, and particularly upon the question of where the responsibility lies, and upon the degree of the blame affecting the nationals of the two High Contracting Powers, or of other countries, in case their responsibility should be ascertained by the inquiry.” The latter part of this clause referred to the alleged liability of Japan. The terms of the reference are thus wider than those contemplated by Art. 14 of the Convention of 1899 which limits the Report of the Commission “to a statement of facts.” The Commission was entrusted with the fullest powers even to the extent of apportioning the blame for the occurrence, and this in a matter which both Powers might well have contended to be a difference involving “honour” and “vital interests,” which is expressly excluded from the operation of the Convention by the terms of Art. 9.
Details of the procedure were left to the Commission which met in Paris on December 22, 1904, and delivered its award on February 26, 1905.
The Commission was occupied for four days in settling the procedure to be observed, the Convention of 1899 having enacted no such rules.
Both Powers undertook to afford to the Commission all possible means and facilities to enable it to obtain a thorough knowledge and appreciation of the facts, and to bear an equal share of the expenses of the Commission which reported to the two Governments the results of their inquiry.
The Commission reported (the Russian Admiral alone dissenting) that no Japanese torpedo-boats had been present, that the firing was therefore unjustifiable, that the Commander of the Fleet (Admiral Rojdestvensky) was responsible; but these facts were “not of a nature to cast any discredit on the humanity of Admiral Rojdestvensky or the personnel of his squadron.” Russia subsequently paid the sum of £65,000 by way of indemnity.
The rules of procedure adopted by the North Sea Commission were communicated to the Committee of the Conference, of which Sir Edward Fry, who had acted as British legal assessor at the Commission, was a member.
Article 9 (99), though the subject of considerable discussion, remains unchanged save for two verbal alterations similar to those made in Article 3. The discussion chiefly turned on two proposals of M. de Martens, (1) to substitute the words “agree” for “deem it expedient,” and (2) to add to the functions of Commissions of Inquiry the duty of fixing responsibility, as was done in the North Sea Inquiry, though M. de Martens did not insist on the use of the word “responsibility.” The effect of the acceptance would, it was thought by many of the delegates, have been to make the establishment of such Commissions compulsory “as far as circumstances allow,” and M. de Martens could not carry his point. The fact that Great Britain and Russia had been able to agree under the terms of the Article of the Convention of 1899, determined the Committee to leave it intact.
Considerable additions are made to Art. 10, which in the main are similar to the rules adopted in the North Sea Commission, to which are also due a number of the subsequent Articles in this Part. The place of meeting is to be the Hague unless the Inquiry Convention decides otherwise; the Commission settles the question of the language to be used unless the Inquiry Convention determines it (Art. 11). Art. 17 recommends a set of rules for use by Commissions of Inquiry, which are embodied in the subsequent Articles and are based on a draft presented by the British and French delegate. The mode of procedure adopted is that usual in continental courts of justice. The witnesses are examined by the President. Article 35 reproduces Art. 14 (99). The Russian delegate proposed to modify this Article as follows: “The Powers at variance, having obtained knowledge of the facts and responsibilities declared by the International Commission of Inquiry, are free either to conclude a friendly arrangement, or to have recourse to the Permanent Court of Arbitration at the Hague.” The object of this proposal was to exclude the possibility of the Powers who had constituted an International Commission of Inquiry which had reported on the facts having recourse to war. It was based on the consideration that, if two Powers had been able to agree to constitute a Commission of Inquiry, they should be able to go farther in the manifestation of their attachment to peace1 . The Committee was unable to accept this proposal which appeared to imply obligatory arbitration as a necessary consequence of recourse to Commissions of Inquiry, and which they feared would have tended to diminish the number of cases of appeal to this method of peaceful settlement of disputes.
The Articles on the subject of International Commissions of Inquiry mark an advance on those of the Convention of 1899, though the non-acceptance of the amendments mentioned shows that the subject was approached in an extremely conservative spirit. The new rules adopted had for the more part stood the test of actual practice, and were therefore accepted as ready for embodiment in an international Act, but any changes of principle in the nature of an approach to compulsion could find no acceptance. If Great Britain and Russia had, at a time when relations between them were strained almost to breaking point, been enabled to terminate the period of tension in a friendly manner, it was thought that other states might on future occasions do the same.
International Arbitration.Part iv. is concerned with International Arbitration and is divided into four chapters, dealing with the system of arbitration, the Permanent Court of Arbitration, arbitration procedure, and arbitration by summary procedure.
Chapter i. The system of arbitration.Article 37 blends Arts. 15 and 18 (99). Article 38 reproduces Art. 16 (99), which recognises that arbitration is the most effective and equitable means of settling disputes in questions of a legal nature and especially in the interpretation or application of international conventions. This Article is, in the words of Sir Edward Fry, “the corner-stone of the Convention.” A clause is now added stating that “consequently, it would be desirable that, in disputes regarding the above-mentioned questions, the contracting Powers should in that case have recourse to arbitration, in so far as circumstances permit.” It is hardly possible to frame a clause in a more cautious or non-committal form of words. Its author was M. de Mérey , one of the Austro-Hungarian delegates. As has already been explained it was round this Article that the various propositions for obligatory arbitration grouped themselves1 . They all took the form of suggestions making recourse to arbitration (which the Article recognised as an equitable solution of disputes) under certain conditions obligatory. They all failed of acceptance and no change was made save the addition of the clause just mentioned2 . There are no further changes in Chapter i.
Chapter ii. The Permanent Court.Articles 41 and 42 are re-enactments of Arts. 20 and 21 (99). A slight addition is made in Article 43, where the words “as soon as possible” were added on the proposition of the German delegate in accordance with the recommendation of the arbitrators in the “Pious Funds” case, and with a view of adding precision to the terms of the Article.
Article 44 clears up a doubt which existed under Art. 23 (99) as to the length of time for which a member of the Court held office when he had been nominated to fill the place of another who had died or retired3 .
Article 45 contains some slight changes which however were not arrived at without considerable discussion. As a result of these amendments, each party chooses two arbitrators, but only one of them may be a national or chosen from among the persons nominated by it as members of the Permanent Court. This was in the nature of a compromise, as M. Lammasch (Austro-Hungarian delegate) proposed that no national judge should be appointed where the tribunal was composed of only three members.
In connection with the alterations in this Article it may be noticed that under the Protocol of the 7th May, 1903, with reference to the Venezuelan Arbitration, the Tsar was invited to name from among the members of the Permanent Court three arbitrators, none of whom should be subjects of any of the signatory Powers or creditors. It was not without some difficulty that the Tsar was able to comply with the request. He first nominated, in addition to M. Mouravieff, M. Lardy, Swiss Minister at Paris, and Professor Henning Matzen, Judge of the High Court of Denmark, but the two latter declined, as their countrymen were not disinterested in the litigation. MM. Lammasch and de Martens were then nominated and accepted1 .
In all the four cases, except that of the Japanese leases, the arbitrators were not nationals of the parties to the Arbitration. In the “Pious Funds” and “Venezuela” cases nationals were excluded by the terms of the Compromis, and although there was no such exclusion in the “Muscat Dhows” case, nationals of the parties were not included.
Art. 24 (99) provided no solution for the case where in choosing an umpire the different Powers selected by each party failed to agree; consequently a new paragraph is added to Article 45 under which each Power, if they cannot agree within two months, presents two candidates, and the drawing of lots decides which of them shall be umpire.
Article 46 contains the last three paragraphs of Art. 24 (99); the words “without delay” were added for the same reasons as in the case of Article 43.
Article 47 contains no material change.
Article 48 marks an important alteration in Art. 27 (99), an alteration not arrived at without considerable discussion. Two amendments to Art. 27 (99) were moved, one by the Delegation of Peru, the other by the Delegation of Chili2 . It was thought by the Conference of 1899 that the Article would provide a valuable means of assisting in the maintenance of peace, for by it the signatory Powers consider it their duty, if a serious dispute threatens to break out between two or more of them, to remind these latter that the Permanent Court is open to them. The Article had however practically been a dead letter. The Peruvian delegate therefore proposed that in case of dispute between two Powers, one of them can always, by a note addressed to the International Bureau at the Hague, declare that it is disposed to submit the dispute to arbitration; the note to contain a short statement of the question in dispute from the point of view of the Power sending it, and the Bureau to communicate it to the other Power, and place itself at the disposition of both Powers in order to facilitate an exchange of views between them and a possible conclusion of a Compromis. The Chilian proposition was in the nature of an amendment to the Peruvian, limiting the cases to which it was applicable to disputes subsequent to the present Convention, and allowing the application of the Power to be made by telegraph. It further limited the function of the Bureau to one of administration, whereas the Peruvian proposal seemed to give to it the character of a compulsory mediator, which was going beyond the principle of the Convention of 1899. These proposals received the support of Baron D’Estournelles de Constant on behalf of France, but he suggested that it would be sufficient, and in harmony with the general principles of the Convention, if one Power merely addressed to the Bureau a note announcing its willingness to arbitrate, and the Bureau’s function should consist in communicating this to the other Power. The function of the Bureau would thus in no sense be political, it would be “an international letter box.” He agreed that this provision should not have a retroactive effect. In the discussion, the French view was supported by the United States, British, Russian and Brazilian delegates, the former pointing out that on several occasions the faculty offered by Art. 27 (99) had been successfully exercised by President Roosevelt in the case of South American States. On the other hand, the delegates of Austria-Hungary and Japan spoke against the proposal. The former contending that Art. 27 (99) had not been appealed to, though occasions for it had certainly not been wanting, it was therefore inopportune to extend it. A vote was taken, when 34 states voted for the Article as it now stands. Germany, Austria-Hungary, Belgium, Japan, Roumania, Sweden and Turkey voted against it; Greece, Luxemburg and Montenegro were absent. It remains to be seen whether the additional paragraph will render the Article more efficacious than Art. 27 of the former Convention.
Mr J. B. Scott on behalf of the United States renewed the Declaration made in 1899 on the subject of Art. 27, which now becomes Article 48.
“The Delegation of the United States of America in signing the Convention for the pacific settlement of international disputes, such as is proposed by the International Conference of the Peace, makes the following declaration:
“Nothing contained in this Convention shall be so construed as to require the United States of America to depart from its traditional policy of not intruding upon, interfering with, or entangling itself in the political questions or policy or internal administration of any foreign state: nor shall anything contained in the said Convention be construed to imply a relinquishment by the United States of its traditional attitude towards purely American questions1 .”
Article 50 is a modification of Art. 29 (99). The new paragraph was rendered necessary in consequence of the accession to the Convention of 1899 on the 14th June, 1907, of a large number of Powers who had taken no part in the Conference of 1899. The expenses of the Bureau charged to the acceding Powers are to commence from the date of their accession and not from that of the ratification.
Chapter iii. Arbitration procedure.In this Part there are a few changes, some of drafting, others of more importance. Article 53 is new and gives fuller powers to the Permanent Court in the settlement of the Compromis when both parties agree; it also gives it a similar power on the request of one of the parties when attempts to reach an understanding through the diplomatic channel have failed in two classes of disputes. If, however, one of the Powers declares that in its opinion the dispute does not belong to one of the specified classes, this function of the Permanent Court is excluded, a proviso which may have an important limitation on the effectiveness of this Article. (See also Article 73.)
Article 57 re-enacts 34 (99). The judges in the “Pious Funds” case pointed out that in their opinion certain inconveniences existed in reference to Article 32 (99) and the following Articles, under which the arbitrators named by the Powers at variance were obliged to choose an umpire who became by right President of the Tribunal, and they recommended that the arbitrators should be left free to choose the President of the Tribunal from among themselves, and that the nomination of the President should be made at the first sitting of all the members. A proposal in this sense was made by the Russian delegate when Art. 34 (99) was under consideration, but failed to meet with the acceptance of the Committee.
Article 60 makes provision for the case of the Tribunal sitting elsewhere than at the Hague, or on the territory of one of the parties, and adds a clause to 36 (99) providing that the consent of the third Power shall be necessary in such cases.
Article 38 (99) provided that the Tribunal should decide on the choice of language to be used by itself, and to be authorised for use before it. In the arbitration in the “Pious Funds” case and “Venezuela” case, the difficulties in this respect were very apparent, and considerable delay was occasioned by the necessity for translations being made owing to the ignorance of certain of the officials, and in the latter case in consequence of the large number of states with different languages involved in the dispute. The arbitrators in the “Pious Funds” case therefore recommended, and the arbitrators in the “Venezuela” case supported the recommendation, that the Compromis should make the question of the languages to be employed clear, and that the choice of agents and counsel before the Tribunal should be made in conformity with the desire of the Powers at variance on the question of the languages to be employed before the Tribunal. The question was discussed by the Committee, and a compromise between the view adopted by Art. 38 (99) which left the decision to the judges, and the view advanced by the German and Russian delegates excluding this matter from the decision of the Tribunal, was reached. Article 61 leaves the decision to the Tribunal where the Compromis has not determined the languages to be employed.
Article 37 (99) left to the parties an absolute freedom in the choice of agents, counsel and advocates. The arbitrators in the “Venezuela” case, in their note of the 22nd Feb. 1904, drew the attention of the Governments to the inconveniences which may arise from allowing members of the Permanent Court to act as agents or advocates. Counsel acting for Venezuela had, during the proceedings, also addressed a note to the members of the Administrative Council and the judges on the same subject. The arbitrators pointed out that the personal relations existing between all the members of the Permanent Court might have an influence on the progress of the proceedings. “The scientific authority of a member of the Permanent Court would create for him a predominating position in the case when he was charged to represent his own Government before it. Moreover a member of the Permanent Court appearing in one case as agent might in another case be acting as arbitrator, and there might be a danger that the impartiality of the agent and the decision to be pronounced might be compromised, as he who was yesterday appearing as counsel and obtained a favourable verdict might to-day be sitting as judge, and the judge of yesterday appearing before him as counsel.” The British Government strongly supported this point of view, and Sir Henry Howard put the question directly to the Secretary-General of the Permanent Court. The British Government lodged a formal protest against the appointment by the French Government of M. Louis Renault, a member of the Permanent Court, as its agent. The French Government equally strongly affirmed their right to appoint M. Renault, and denied that anyone “especially among the other litigants had a right to contest it.”
The arbitrators having no power to settle the point drew the attention of the signatories of the Convention to the question which had been raised and the Conference took it into consideration. Three alternatives were possible, either to leave the Article of 1899 untouched, which was supported by France and Belgium; or in all cases to forbid members of the Permanent Court to appear as agents or counsel, which was the proposition of Great Britain, the United States and Russia; or to limit the occasions when members of the Permanent Court could appear before it as agents, counsel or advocates to cases where they are employed by the Powers which appointed them members of the Court, which was proposed by Germany. The German compromise was accepted by the addition of a paragraph to Article 62 on the understanding that it did not prevent members of the Permanent Court from giving legal advice to the parties at variance.
Article 63 makes certain changes in Art. 39 (99) on the lines suggested by the arbitrators in the “Pious Funds” case, the third paragraph embodying an amendment moved by Sir Edward Fry, one of the arbitrators in that case.
Article 73. The object of this Article which re-enacts with a slight change Art. 48 (99) is clearly brought out in the Report by M. le Chevalier Descamps in 1899. It is to enable the Tribunal to decide the limits of its own competence. If the Tribunal were not empowered to decide the extent of its own jurisdiction under the Compromis, it would be rendered impotent whenever one of the parties, even against the weight of evidence, chose to contest the jurisdiction of the Court1 .
Articles 75 and 76 are new and are based on the Franco-British Draft on Commissions of Inquiry (see Articles 23 and 24).
Articles 51 and 52 (99) were considered together by the Committee, and M. Loeff on behalf of the Netherlands moved the suppression of the second paragraph of Art. 52 (99) which enables the dissentient members of the Court to state their dissent, while the first paragraph requires that all the members shall sign the award. He pointed out that the provisions of this Article were in opposition to the fundamental principle of arbitration procedure which requires the sentence to be final omni sensu, so that all discussion on it outside the Tribunal shall cease; the expression of dissent tended to revive discussion on the matter which had been adjudicated upon, and to endanger the acceptance of the decision. The Committee adopted this point of view and further amended the Article so that the signature of a dissenting member of the Tribunal is no longer required. The award under Article 79 is now to be signed only by the President and the Registrar, or the Secretary acting as Registrar. The form thus adopted is that in which decisions of the Judicial Committee of the British Privy Council are recorded.
The suppression of Art. 55 (99), which deals with the question of the revision of the award, was moved by M. de Martens who had in 1899 opposed its enactment. The arbitrators in the “Pious Funds” case had expressed the “wish” “that in the Compromis the least possible use should be made of the power given by Article 55.” M. de Martens urged that the prime object of arbitration is the termination of a dispute. The revision of the award is contrary to this idea as it allows the Powers at variance to continue the dispute; he also pointed out that in no one of the four cases heard before the Hague Tribunal had the demand for revision been made. In opposition to this view of M. de Martens it was pointed out that arbitration is not solely for the purpose of terminating a difference, but that it is before all things a means of settling by agreement a dispute which has been left to the judgment of arbitrators freely chosen. Every stage of arbitration depends upon the voluntary action of the parties. Why then should recourse to revision be forbidden them? Further, the Tribunal might have been misled; new facts unknown at the moment when the award was given might come to light, and it would be regrettable if revision under such circumstances were excluded; and even if Art. 55 (99) were suppressed, the parties might provide for revision in the Compromis. M. de Martens’ views failed of acceptance, and Article 83 re-enacts Art. 55 (99).
Chapter iv. Summary arbitration.One of the objections to the Permanent Court was the cost of the proceedings which made it difficult for poorer states to avail themselves of it, and also that as the choice of arbitrators was limited to members of the Permanent Court it might render recourse to it impossible in technical disputes. The French Delegation therefore presented a draft intended to be supplementary to the Convention, and in no way destined to replace it, but to adapt its principles to the settlement of disputes of a technical nature, and others not contemplated by the Conference of 1899. The choice of arbitrators in summary cases is therefore not limited to those on the list of the Permanent Court. The Committee adopted the French draft, and embodied it in the present Convention, making certain necessary changes, accepting in Article 87 the principle in regard to the appointment of umpire which they had rejected in the case of the Permanent Court1 .
The changes made in the Convention are on the whole only in the nature of developments of the principles adopted in 1899. The influence of the recommendations made by the arbitrators in the “Pious Funds” and “Venezuelan” cases is especially noteworthy. Perhaps the most important change is that in Article 48 to which attention has already been directed. A state conscious of the justice of its claims can now appeal to the Hague Tribunal, and leave it to its opponent either to accept arbitration or face public opinion.
A protocol de compromis for the reference to arbitration of the dispute between France and Germany on the Casablanca affair was signed on the 24th Nov. 1908. In matters not specifically regulated by the Compromis the parties agreed to be bound by the terms of the foregoing Convention notwithstanding the fact that it had not at the time been ratified by either state. This will apparently be the first case to be heard before the Permanent Court under the new Convention.
Great Britain and the United States signed a Convention on the 27th January, 1909, for submitting to arbitration disputes which have arisen between them as to the interpretation of a Treaty of 1818 on the subject of fishery rights on the coasts of Newfoundland, Labrador, etc.1 The Tribunal of Arbitration is to be chosen from the general list of members of the Permanent Court at the Hague in accordance with the provisions of Article 45 of the Convention of 1907. The provisions of this Convention, except Articles 53 and 54, are to govern the proceedings. The Tribunal is to be empowered to recommend for the consideration of the parties rules and a method of procedure under which questions which may arise in the future regarding the exercise of liberties under the Convention of 1818 may be determined in accordance with the principles laid down in the award. If the parties shall not adopt the rules and method of procedure recommended, or if they shall not, subsequent to the award, agree upon such rules and procedure, any differences which may arise between them relating to the interpretation of the Treaty of 1818, or the effect and application of the award of the Tribunal, shall be referred informally to the Permanent Court at the Hague for decision by the summary procedure provided by Chapter iv. of the Hague Convention for the Pacific Settlement of International Disputes2 .
The signatory Powers.None of the states which signed the Convention of 1899 have abstained from signing the new Convention except Nicaragua: the remaining 43 states enumerated in the Preamble have all signed, but eight have made the reservations which follow.
Reservations.The United States signed under reservation of the declaration made by Mr Scott as set out previously1 , a declaration which was renewed by Mr Hill at the Plenary Meeting on the 16th Oct. 1907.
Brazil signed under reserve of paragraphs 2, 3 and 4 of Article 53 which relate to the powers conferred on the Permanent Court to settle the Compromis on the request of one of the parties in the case where the parties have not been able to agree.
Greece and Switzerland made similar reserves in the case of paragraph 2 of the same Article.
Chili signed subject to a reservation on Art. 39.
Japan signed under reserve of paragraphs 3 and 4 of Article 48 and paragraph 2 of Article 53 and Article 54.
Roumania signed under reservation on Arts. 37, 38 and 40.
Turkey signed under reservation of the following declarations: “The Ottoman Delegation declares, in the name of his government, that while it is not unmindful of the beneficent influence which good offices, mediation, commissions of inquiry and arbitration are able to exercise on the maintenance of the pacific relations between states; in giving its adhesion to the whole of the Draft, it does so on the understanding that such methods remain, as before, purely optional; it could in no case recognise them as having an obligatory character rendering them susceptible of leading directly or indirectly to an intervention.
“The Imperial Government proposes to remain the sole judge of the occasions when it shall be necessary to have recourse to the different proceedings or to accept them without its determination on the point being liable to be viewed by the signatory states as an unfriendly act.
“It is unnecessary to add that such methods should never be applied in cases of internal order.”
The Recovery of Contract Debts.
[1 ]Parl. Papers, Misc. No. 4 (1908), pp. 302-351; La Deux. Confér. T. i. pp. 399-454; Livre Jaune, pp. 64-68; Weissbuch, pp. 2-3; J. B. Scott, Leading Cases in International Law, p. xlvi. (bibliography); Sir T. Barclay, Problems, etc. pp. 9-45, 191; Idem, The Hague Court and vital interests, L. Q. R. Vol. xxi. p. 109; Le Chevalier Descamps, Rapport sur le Règlement des Conflits internationaux, Rev. de Droit int. (2nd series), Vol. ii. pp. 117, 270, 352, 498; F. Despagnet, Droit int. public, Bk. vii. tit. 1; A. Ernst, L’œuvre de la deuxième Conférence, p. 8; Bonfils-Fauchille, Droit international (5th ed.), Pt. iv. Bk. i. ch. 2; A. S. Hershey, Convention for the peaceful adjustment of international differences, Am. Journ. of Int. Law, Vol. ii. p. 29; F. W. Holls, The Peace Conference, Chap. v.; T. J. Lawrence, International Problems, etc. Chap. iv.; C. Meurer, Uebersicht über die Arbeiten der Haager Friedenskonferenz; Idem, Die zweite Haager Friedenskonferenz, Teil i.; O. Nippold, Die Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten; E. Lémonon, La seconde Conférence de la Paix, p. 69; L. Oppenheim, Int. Law, Vol. ii. Pt. i. chap. 1; E. Nys, L’arbitrage, Rev. de Droit int. (2nd series), Vol. viii. p. 5 (and works cited therein); Idem, Le Droit inter. Vol. iii. § 12; J. Westlake, Peace, appendix; F. E. Smith and N. W. Sibley, International Law as interpreted by the Russo-Japanese War, Chap. xiv.; A. Pillet, La cause de la paix et les deux Conférences de la Haye; E. A. Whittuck, International Documents, pp. xv., xxiv.[ ]
[2 ]Parl. Papers, Misc. No. 1 (1899), p. 354.
[1 ]Parl. Papers, Misc. No. 1 (1899), pp. 222-248.
[1 ]See ante, pp. 44-50.
[2 ]Parl. Papers, Misc. No. 4 (1907), pp. 60, 302; La Deux. Confér. T. i. pp. 399-454.
[1 ]See F. Despagnet, Cours de Droit international, §§ 473-6.
[2 ]Parl. Papers, Russia, No. 2 (1905), No. 3 (1905), Vol. ciii. (1905), pp. 369-445; De Martens, Nouveau recueil général de traités (2nd series), Vol. xxxiii. p. 641; A. Mandelstam, Le Commission international d’enquête sur l’incident de la mer du Nord, Rev. gén. de Droit inter. Vol. xii. pp. 161, 351; Sir T. Barclay, Problems, etc. pp. 35-42.
[1 ]Report of Baron Guillaume, Parl. Papers, Misc. No. 4 (1908), p. 315; La Deux. Confér. T. i. p. 415.
[1 ]See ante, p. 82.
[2 ]Baron Guillaume’s Report, Parl. Papers, Misc. No. 4 (1908), p. 318; La Deux. Confér. T. i. p. 416.
[3 ]The following are the Members of the Permanent Court nominated by Great Britain:—The Right Hon. Sir Edward Fry, formerly Judge of the Court of Appeal, Member of the Privy Council; the Right Hon. Viscount Selby, formerly Speaker of the House of Commons, Member of the Privy Council; the Right Hon. Sir E. Satow, formerly Envoy Extraordinary and Minister Plenipotentiary at Pekin, Member of the Privy Council; the Hon. Sir Charles Fitzpatrick, Chief Justice of the Supreme Court of the Dominion of Canada. All appointed on the 30th Nov. 1906.
[1 ]Rev. gén. de Dr. int. Vol. xiii. pp. 423, 449.
[2 ]Parl. Papers, Misc. No. 4 (1908), p. 320; La Deux. Confér. T. i. p. 421.
[1 ]In his annual message to Congress in 1901, Mr Roosevelt treated the acceptance of this Declaration by the Conference of 1899 as an acquiescence of the Powers in the Monroe Doctrine (J. B. Moore, Digest of Int. Law, Vol. vi. p. 594). It is, however, difficult to see why the Declaration of the United States delegate should be considered to have a bilateral effect, and the principle that “silence gives consent” be invoked in so important a matter.
[1 ]Parl. Papers, Misc. No. 1 (1899), p. 246. The official English translation appears to miss this point. The text and translation given in Parl. Papers, Misc. No. 1 (1908), are inaccurate.
[1 ]See ante, p. 174.
[1 ]Parl. Papers, 1909. [Cd. 4528.]
[2 ]See ante, p. 155.
[1 ]See ante, p. 173.
[P. 164, note 1,]add La Deux. Confér. T. ii. pp. 34, 89, 121-135, 210-369, 377-404, 440-2, 572-589, 711-771.
[P. 170, last line,]for “M. de Mérey” read “M. Mérey de Kapos-Mère.”