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THE RESULTS OF THE SECOND PEACE CONFERENCE. - 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).
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THE RESULTS OF THE SECOND PEACE CONFERENCE.
The Second Peace Conference held its First Plenary Meeting on the 15th June, 1907, and its last on the 18th October1 . The members of the Conference at their Final Meeting expressed profound appreciation of the humanitarian worth of the Conference, and condemned the pessimism of those who viewed the ideal of peace as a dangerous illusion. But outside the walls of the Palace where the delegates had sat for four tedious months, a different note was at once apparent. The humanitarian sentiments were derided. Peace, it was said, was neither more nor less secure after the Conference than before; the assembly had been actuated not by equitable principles but by political considerations. The failures of the Conference as embodied in its Vœux and Resolutions were emphasised; the noble sentiments, and high principles enunciated in the speeches at the Final Meeting were contrasted with the achievements of the representatives of forty-four sovereign Powers after four months of unintermitted labour; the “law of facts” had prevailed, the Conference was a failure, a “fiasco,” its one value was to afford a warning against the besetting sin of the hour—“against the moral and intellectual dishonesty of pandering to sentiment merely because it was popular, without regard to the inevitable results2 .” The world had in fact become wearied by the complicated reports of the long drawn out proceedings of the Conference, and bored by the reiteration of the arguments of the delegates based on political self-interest; the enthusiasm which had greeted the commencement of the Conference had been turned to disgust at its apparently small results.
Judgments passed under such circumstances are apt to be coloured by the feelings of the moment, the failures are magnified, the positive and permanent results are neglected or belittled. There is a truth in the adverse criticisms which were expressed so freely at the conclusion of the Conference, but it is by no means the whole truth.
The foregoing pages show the actual results obtained by the Second Peace Conference, and the processes by which they were framed; the Conventions have been examined and their ambiguities and omissions noted. All legislation which is the result of compromise contains much that is open to criticism, international agreements no less than national statutes. A brief summary of work of the Second Conference will serve to assist in forming a judgment on its permanent value.
The Convention for the Pacific Settlement of International Disputes prepared in 1899 was amended and enlarged, especially as regards Commissions of Inquiry, and a new chapter was added for facilitating appeal to arbitration by summary procedure. Already one important case has been decided under the terms of the new and still unratified Convention—the Casablanca Arbitration Case between France and Germany1 —and another, the dispute between Great Britain and the United States regarding the Atlantic fishery question, has been set down for trial, the Protocole de Compromis in the latter case expressly providing for the application of the new summary procedure in the determination of questions arising under the award.
The second Convention provides for a case of compulsory arbitration in regard to contract debts, but its value is weakened by the abstentions from signature, and the reservations of many of the Powers in whose interest the Convention was proposed.
By the third Convention the signatory Powers recognise that war ought to be preceded by a declaration.
By the fourth Convention an important addition is made to the Convention relating to the laws and customs of land warfare of 1899 by the provision of a sanction for the breach of the Regulations adopted. Several alterations and additions are made to the Regulations themselves, though some of these are equivocal.
In the fifth Convention a commencement is made of a Code relating to neutrals in land warfare.
The sixth Convention registers a concession in favour of enemy private property at sea, by exempting from capture merchant-ships in port at the outbreak of war, as well as those on the high seas ignorant of its existence; but here again there is evidence of compromise, and the desirability of allowing days of grace to ships in enemy ports is all that the Convention provides, while the important qualification regarding ships whose build indicates that they are intended for conversion into war-ships may raise difficult questions in the application of the Convention.
The seventh Convention lays down the conditions to which merchant-ships converted into war-ships must conform in order to comply with the rule abolishing privateering; they are simple and straightforward, but the really difficult questions connected with the place and duration of the conversion are left unsolved.
The eighth Convention relating to submarine mines is a very unsatisfactory document. The endeavours of Great Britain to safeguard neutral commerce by strictly limiting the localities in which mines may be laid, and of Germany to prohibit floating mines altogether for a period of five years were unfortunately unsuccessful, and the Convention fails to prohibit the use of these deadly weapons under circumstances which would render their employment disastrous to innocent neutrals; the absence of a prohibition is, however, not to be mistaken for a tacit permission.
The bombardment of undefended coast towns is prohibited by the ninth Convention, except in case of the non-provision of supplies for the enemy fleet demanding them. The prohibition to bombard such towns for non-payment of a ransom is now recognised as a definite rule of international law.
By the tenth Convention important changes are introduced into the Convention of 1899 applying to naval warfare the principles of the Geneva Convention, and the Conference is to be congratulated on the execution of a highly humane piece of work. Several problems connected with this subject left outstanding from the first Conference were found capable of solution by the second.
The eleventh Convention is a valuable contribution towards the laws of naval warfare; small coasting fishing boats, a class of vessels which had in practice been left unmolested for a considerable time, are exempted from capture, and this exemption is extended to small boats engaged in petty local navigation. Enemy merchant seamen are also exempt from capture as prisoners of war. None of the topics in this Convention were mentioned in Court Benckendorff’s Circular.
The twelfth Convention establishing an International Prize Court (another subject which was not mentioned in the Russian programme) is the greatest achievement of the Conference. At the Tenth Plenary Meeting of the Conference on the 17th October, 1907, Sir Edward Fry spoke as follows of this Convention: “I have no intention to pass in review the labours of this Conference, I shall confine myself to saying that of all the projects we have adopted, the most remarkable in my opinion is that of the Prize Court, because it is the first time in the history of the world that there has been organised a Court truly international. International law of to-day is not much more than a chaos of opinions which are often contradictory, and of decisions based on national laws. We hope to see little by little formed in the future, around this Court, a system of laws truly international which will owe its existence only to principles of justice and equity, and which consequently will command not only the admiration of the world, but the respect and obedience of civilised nations1 .” The obstacles to be overcome before the International Prize Court is an accomplished fact are great, but some of these have been removed by the Declaration of London of 1909, which however, like the Prize Court Convention (and all the Conventions of the Second Peace Conference), still remains unratified. It would be a striking testimony to the value of international gatherings, and the growth of the power of law, should both of these important Acts be ratified, even though some reservation were made by the ratifying Powers.
The thirteenth Convention regarding the rights and duties of neutrals in naval war is of too complex a character wholly to praise or blame; its weakness in regard to the enunciation of neutral duties has already been noticed. In none of the discussions was the influence of political considerations greater than in those on this subject.
The Declaration of 1899 prohibiting the discharge of projectiles and explosives from balloons, which had expired in 1905, was renewed until the termination of the next Peace Conference. It has not however been signed by such important Powers as Germany, France, and Russia. Several of the Powers which signed and ratified the Declaration in 1899 have clearly manifested their intention to remain unfettered in their use of what may in the future prove a most important factor in warfare both by land and sea, and in view of the abstention from signature of several important states it would appear unlikely that the Declaration will be ratified by many of the signatory Powers.
Such were the positive results of the Second Peace Conference; the failures which were many have already been discussed; the net results, though considerable, “are less than might have been hoped for, but perhaps as great as could reasonably be expected when all the circumstances are considered2 .”
The most important work of the Second Peace Conference, apart from the amendments to the Conventions of the First, is to be found in the Conventions relating to maritime international law. Except in regard to the treatment of sick, wounded and shipwrecked persons in naval warfare, no attempt had been made since 1856 to enter into any international agreement on the subject, and many of the rules had, owing to modern changes, become obsolete or unworkable. The difficulties which the Conference had to face in dealing with this topic have already been referred to1 ; that they were not entirely overcome at the first attempt is no cause for surprise. Conventions 7 to 13 all deal with naval warfare, and although the solutions provided for the difficult problems with which they deal are frequently of a tentative character, the results of the London Naval Conference afford reason to believe that many of the Conventions of 1907 will be elucidated and strengthened by the Conference of 1915.
In comparing the work of the Second Peace Conference with the First, it is necessary to recall the fact that the First Conference did not commence its labours on an arid plain, the soil had already been tilled, the seed sown and watered, and two of the three Conventions adopted by it were the fruits of previous international gatherings, subsequent discussions and international practice.
The Second Conference also was able to reap the results of the labours of the First, and like it to enter new fields and sow seeds for its successors; the bulk of its work, indeed, was of the latter character, and the fruits will appear in due time. These are, in fact, already becoming apparent. The Convention of the 20th December, 1907, between the five Central American States of Costa Rica, Guatemala, Honduras, Nicaragua and San Salvador, whereby the signatory Powers agreed to submit to the decision of a permanent Arbitration Court all disputes (without any exceptions) which may arise between them, may be indirectly attributed to the discussion at the Hague. Already two cases have come before the Court sitting at Cartago (Costa Rica). An important step towards the preparation of regulations relative to the laws and customs of Naval Warfare has been taken by the London Naval Conference of 1909. The delegates, in preparing the Declaration of London, were able to avail themselves of the experience gained in the lengthy discussions on blockade, contraband, etc. at the Hague in 1907. The Second Conference, no less than the First, must be judged, not merely by the results of the moment, but by its subsequent influence.
The expectations of the immediate results of the Second Conference were not fully realised, too much had been anticipated from it, more might have been forthcoming but for the following circumstances.
The Second Conference was overpowered by numbers, the Committees were too large. It was also hampered at every turn by the effects of the legal doctrine that all the states represented were equal, and for this reason the Conference has been described as a “sham” which brought forth a progeny of shams1 . Dr Westlake makes use of the same expression when he says “in a word the voting was a sham, and of shams we ought to have no more2 .” “The claim of many of the smaller States to equality,” writes Sir Edward Fry, “as regards not only their independence, but their share in all international institutions waived by most of them in the case of the Prize Court, but successfully asserted in the case of the proposed new Arbitral Court, is one which may produce great difficulties, and may perhaps drive the greater Powers to act in many cases by themselves3 .” As a consequence of this principle (in the support of which the smaller Powers received encouragement from several of the greater who were desirous of obtaining their votes), and of the regulation adopted by the Conference that no Convention should be recommended for acceptance unless there was unanimity, proposals affecting maritime international law were placed at the mercy of purely inland states such as Luxemburg, Switzerland, and Servia, which ranked for the purpose of voting on a level with Great Britain, the United States, and Germany. The Prize Court Convention was nearly wrecked by the opposition of the smaller states, and the creation of an Arbitration Tribunal of a truly permanent character was frustrated by the same Powers.
Sir Edward Fry’s hint that the greater Powers might be driven to act by themselves bore fruit in the Naval Conference of London, when problems relating to contraband and blockade which were found insoluble in 1907 were adjusted by the representatives of a small number of the greater Powers. The Third Conference will, if it desires to avoid the excessive waste of time of the Second, be compelled either to abandon the principle of requiring unanimous votes, or to abandon entirely the principle of voting.
Another reason why no results were reached on several of the subjects introduced was the absence of preparation on the part of many of the Delegations. The soil must be tilled before the seed can be successfully sown. The German Delegation appears to have come fully prepared with drafts on all or nearly all the subjects enumerated in the Russian Circular, and the British, the United States, French and other Delegations had prepared drafts on matters in which they were specially interested. A careful examination, however, of the procès-verbal of the Committees, Sub-Committees and Examining Committees reveals the fact that delay was frequently occasioned by absence of instructions on the part of many of the Delegations. Owing to the wide latitude given by the Chairman to the introduction of new topics, and the fact that the discussions were not confined within due limits, new points were raised and proposals made which often left even the best instructed Delegations unprepared to take any definite line. Some questions of the greatest importance such as the British proposal for the abolition of contraband were publicly discussed for the first time, without the valuable assistance which the Conference derived in most of the other subjects from the previous careful and scientific examination by text-writers, or the body of experts composing the “Institut de Droit International.” The Conference felt these drawbacks and resolved that two years before the summoning of the next Conference by a careful preparation of drafts, and preliminary discussions of various topics it should be ascertained what subjects were ripe for embodiment in an international regulation, and a programme should then be prepared1 . A useful precedent will be found in the various memoranda sent in to the British Government before the meeting of the London Naval Conference, as by means of these the views of the Governments summoned to the Conference were made known, and bases for discussion prepared before the delegates assembled.
The defects in the rules of procedure were striking and in many points fatal to progress. The President at the commencement of the Conference expressed the hope that speeches should be limited to ten minutes; this hope was unrealised. Frequently the same delegate addressed a Committee at inordinate length, and several times in the course of one meeting. “The least hopeful proposals were, under the pseudo-parliamentary procedure, allowed to be put through an indefinite number of stages without any likelihood of their ultimate decision2 .” Amendments and contradictory resolutions were passed only to be sent on to another Committee where the same procedure not infrequently occurred.
Some of these causes of want of greater success are capable of remedy by a future Conference, but the more fundamental and permanent cause was political. Each Delegation had the primary duty to discharge of defending its state’s national interests: the Conference was not composed merely of lawyers intent on framing a scientific code of international law; it was a battlefield of diplomatists. In questions where political considerations were supreme, compromise was often impossible. Each delegate “did his best to advance his nation’s interests, but inasmuch as nations differ in status and power, proposals made by one nation would not commend themselves to another, and heated arguments would follow moving the whole assembly to excitement, each representative insisting on his nation’s sovereign rights, and declining to submit to coercion, with the result that proposals would be dropped half-way or suspended in a void of empty theories1 .”
Notwithstanding all these circumstances the Conference was not a failure; it was disappointing but it is not discouraging. War will not be banished from the world by Peace Conferences; nevertheless such gatherings, by removing doubts in international rules, and bringing into greater prominence the solidarity of the interests of mankind, may do much to encourage arbitration and to remove the causes of war. The Second Peace Conference no less than the First produced solid results in these directions, and by establishing an International Prize Court it has provided the means for a pacific solution of the questions which may arise in construing its Conventions.
The work of future Conferences will be greatly assisted if more careful preparation is previously made of the questions to be brought forward; these must be chosen by the Powers themselves, and only those should be introduced on which bases of discussion can be first framed. The Permanent Administrative Council established at the Hague under the provisions of the Convention for the Pacific Settlement of International Disputes might form a truly International Bureau for the preparatory work of future Conferences. Rules of procedure must be carefully drafted to avoid lengthy and futile discussions: voting should be abolished, and the sense of the Conference taken not by merely counting states, but by taking into account their differences in territory, wealth, population, armed forces, conceptions of right, and experience of the topics under consideration. States should be free to enter into Conventions among themselves as the results of such discussions. It should be possible for one state whose proposals have received the support of a substantial number of other states to ignore the dissentients, and to negotiate a Convention with those who have supported its proposals, without incurring the censure of the Conference or being accused of attempting to frustrate its labours.
Tsars have deserved well of posterity for their initiative in the summoning of International Conferences, but it is now time that such gatherings should meet freed from the patronage of any one monarch.
The appeal to the sentiment of the world which is made by the name of the “Peace Conference” has not been without its effect, but those objects which were the very basis of the invitation issued for the First Conference, “the maintenance of the general peace, and a possible reduction of the excessive armaments which were burdening all nations,” were absent from the programme sketched out for the Second1 . Every International Conference which makes for the growth of international law, and a fuller acceptance of its rules is, however, a real “Peace” Conference, and is of value in maintaining “the general peace,” even though its work should consist in the preparation of laws of war.
There is much work in store for many years for future Conferences in settling and codifying the rules of international law, rules which govern the relations of states both in peace and war. The road to be travelled before the goal is reached will doubtless be long and tedious, and often there will apparently only be movement in a circle. No one who has studied the history of the attempts to codify national law will lightly estimate the labour involved, or be discouraged by the slowness of the rate of progress. Every addition to accepted rules, every solution of a disputed point is an advance towards the reign of law among states, and to this end the Second Peace Conference contributed in no small measure.
[1 ]The official record of the Conference, La Deuxième Conférence Internationale de la Paix, consists of 3 folio volumes, containing over 3000 pages, and these do not represent the whole of the printed matter officially supplied to the delegates. The Special Correspondent of The Times estimated that the total number of documents which were printed for circulation was close on 850, and as 600 copies of each were sent out the total number of copies approximated to 510,000 (see The Times for 19th Oct. 1907).
[2 ]See leading Article on “The Hague Fiasco” in The Times, 19th Oct. 1907.
[1 ]For the Award in the Casablanca Arbitration see Amer. Journ. of Inter. Law, Vol. iii. pp. 698, 755.
[1 ]Parl. Papers, Misc. No. 4 (1908), p. 79; La Deux. Confér. T. i. p. 592.
[2 ]Report of Sir Edward Fry to Sir Edward Grey, Parl. Papers, Misc. No. 1 (1908), p. 19.
[1 ]See ante, pp. 87-93.
[1 ]See The Times, 19th October, 1907.
[2 ]Quarterly Review, January, 1908, p. 230.
[3 ]Parl. Papers, Misc. No. 1 (1908), p. 21. See ante, p. 517.
[1 ]See ante, p. 94.
[2 ]Edinburgh Review, January, 1908, p. 224.
[1 ]Report of the Chinese Minister Lu-Cheng-Hsiang to the Emperor (The Times, 20th February, 1908).
[1 ]See ante, p. 75.